Murray Hooper v. David Shinn

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MURRAY HOOPER, No. 08-99024

Petitioner-Appellant,

D.C. No.

v. 2:98-CV-02164-SMM

DAVID SHINN, * Warden,

Respondent-Appellee. OPINION

Appeal from the United States District Court

for the District of Arizona

Stephen M. McNamee, District Judge, Presiding

Argued and Submitted September 16, 2020

San Francisco, California

Filed January 8, 2021

Before: Jacqueline H. Nguyen, Mark J. Bennett, and

Ryan D. Nelson, Circuit Judges.

Opinion by Judge Bennett

*

Pursuant to Federal Rule of Appellate Procedure 43(c)(2), David

Shinn is substituted for his predecessor, Dora B. Schriro, as Warden.

2 HOOPER V. SHINN

SUMMARY **

Habeas Corpus / Death Penalty

The panel affirmed the district court’s denial of Murray

Hooper’s habeas corpus petition challenging his Arizona

state conviction and death sentence for multiple offenses

including two counts of first-degree murder.

The panel addressed three certified issues: (1) whether

the prosecution’s nondisclosure and delayed disclosures of

evidence violated Hooper’s due process rights under Brady

v. Maryland, 373 U.S. 83 (1963); (2) whether the district

court erred in denying Hooper leave to amend his petition to

add a claim that his death sentence violates the Eighth and

Fourteenth Amendments because his sentence was based, in

part, on now-invalid convictions; and (3) whether Martinez

v. Ryan, 566 U.S. 1 (2012), excuses the procedural default

of his claim that his trial counsel rendered ineffective

assistance at sentencing.

Analyzing Hooper’s Brady claims under the

Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), the panel held that:

• The Arizona Supreme Court did not unreasonably

apply clearly established law in concluding that

Hooper failed to show that disclosure of benefits that

the State and a county investigator provided to a

witness and his wife might have affected the outcome

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

HOOPER V. SHINN 3

of the trial; that the panel is therefore barred under 28

U.S.C. § 2254(d)(1) from reviewing Hooper’s claim

based on these benefits; and that the Arizona

Supreme Court’s determination that the benefits

were cumulative impeachment evidence was not an

unreasonable factual determination under

28 U.S.C. § 2254(d)(2).

• Because there was no clearly established law

governing Brady claims based on delayed

disclosures where the defense had the opportunity to

use the evidence at trial, AEDPA precludes review

of the Arizona Supreme Court’s decision on

Hooper’s claim regarding the delayed disclosure of

police reports.

• Because there was no clearly established law

concerning such delayed disclosures, Hooper’s

argument that the Arizona Supreme Court’s decision

on delayed disclosure of photos was an unreasonable

application of clearly established law likewise fails;

and assuming without deciding that the Arizona

Supreme Court’s decision on the photos was based

on an unreasonable factual determination, the

outcome on the Brady claims does not change

because the claims fail even on de novo review.

The panel wrote that even if it could review all of the

Brady claims de novo, they would fail because the delay in

producing the photos and police reports, and the failure to

disclose the benefits to the witness and his wife, were not

material, as they would not have put the whole case in such

a different light as to undermine confidence in the verdict.

4 HOOPER V. SHINN

The panel held that the district court properly denied

Hooper’s request for leave to amend his petition to include

claims that his death sentence violates the Eighth and

Fourteenth Amendments because any amendment would be

futile.

The panel held that Hooper—who did not raise in his

first state post-conviction petition his claim of ineffective

assistance of sentencing counsel—failed to establish cause

under Martinez to excuse the procedural default. The panel

held that because Hooper failed to show what additional

evidence he could have obtained from discovery or an

evidentiary hearing to support that he was prejudiced by trial

counsel’s performance, the district court did not abuse its

discretion in denying his requests for discovery and an

evidentiary hearing.

The panel declined to expand the certificate of

appealability to include two claims as to which it deemed the

district court’s decision not debatable among reasonable

jurists.

COUNSEL

Thomas J. Phalen (argued), Phoenix, Arizona; Jon M. Sands,

Federal Public Defender; Dale A. Baich, Assistant Federal

Public Defender; Office of the Federal Public Defender,

Phoenix, Arizona; for Petitioner-Appellant.

Jeffrey L. Sparks (argued), Jon G. Anderson, and John

Pressley Todd, Assistant Attorneys General; Kent Cattani,

Chief Counsel, Capital Litigation Section/Criminal Appeals

Section; Office of the Attorney General, Phoenix, Arizona;

for Respondent-Appellee.

HOOPER V. SHINN 5

OPINION

BENNETT, Circuit Judge:

In this murder-for-hire case, an Arizona jury convicted

Murray Hooper on all counts, including two counts of first-

degree murder. The trial court sentenced Hooper to death.

On New Year’s Eve 1980, while Pat Redmond, his wife

Marilyn Redmond, and Marilyn’s mother Helen Phelps

(who was visiting) were home preparing for a festive dinner,

Hooper, William Bracy, and Ed McCall forced their way

into the home at gunpoint. Hooper and his coconspirators

demanded jewelry, money, and guns. They herded their

victims into the master bedroom and forced them to lie face

down on the bed. Redmond, Marilyn, and Phelps were then

bound and gagged. One or all the intruders shot each victim

in the head, and one of the intruders slashed Redmond’s

throat. Redmond and Phelps died, but Marilyn survived.

Hooper appeals the district court’s denial of his petition

for a writ of habeas corpus. He raises three certified issues:

(1) whether the prosecution’s nondisclosure and delayed

disclosures of evidence violated his due process rights under

Brady v. Maryland, 373 U.S. 83 (1963); (2) whether the

district court erred in denying him leave to amend his

petition to add a claim that his death sentence violates the

Eighth and Fourteenth Amendments because his sentence

was based, in part, on now-invalid convictions; and

(3) whether Martinez v. Ryan, 566 U.S. 1 (2012), excuses the

procedural default of his claim that his trial counsel rendered

ineffective assistance at sentencing. Hooper also raises two

uncertified issues: (1) whether he was unconstitutionally

shackled at trial; and (2) whether the unconstitutional

shackling caused him to involuntarily waive his right to be

present at voir dire because it forced him to choose between

two constitutional rights.

6 HOOPER V. SHINN

We have jurisdiction under 28 U.S.C. §§ 1291 and 2253,

and we affirm the district court’s denial of habeas relief.

I. Facts and Procedural History

A. The Conspiracy and Murders

Robert Cruz, head of a Chicago crime organization, hired

Hooper, Bracy, and McCall to kill Redmond.1 Redmond and

Ron Lukezic co-owned Graphic Dimensions, a successful

Phoenix printing business. In the summer of 1980, Cruz and

Arthur Ross (Lukezic’s brother-in-law) offered Graphic

Dimensions several lucrative printing contracts with Las

Vegas hotels, but Redmond rejected the offers. Cruz was

unhappy and wanted Redmond killed to get Redmond’s

interest in the business. His plan was to eventually take over

the entire business by having Lukezic killed.

In September 1980, Cruz offered Arnold Merrill $10,000

to kill Redmond, but Merrill refused. In early December

1980, Hooper and Bracy, who lived in Chicago, flew from

Chicago to Phoenix, and Cruz and Merrill picked them up at

the airport. Over the next several days, Merrill drove Hooper

and Bracy to various locations. On one occasion, Merrill

took the men to see Cruz, and Merrill saw Cruz give a stack

of $100 bills to Bracy, who gave some to Hooper. That same

day Merrill drove the men to the Gun Trader, a gun store

owned by Merrill’s brother, Raymond Kleinfeld. Hooper

1

As discussed below, identification was a critical issue in the case.

Hooper and Bracy are black, and McCall is white. Hooper was thirty-

five when he committed the Redmond crimes. Bracy died of natural

causes in 2005, see Motion to Dismiss, Bracy v. Schriro, No. 95-cv-

02339 PHX-SSM (D. Ariz. Sept. 7, 2005), ECF No. 94, and McCall is

also deceased.

HOOPER V. SHINN 7

picked out a large knife, paid for by Cruz, and Kleinfeld gave

Bracy a package containing three guns.

At some point, Merrill, Hooper, and Bracy spotted

Redmond leaving a bar and followed him as he drove away

from the bar. During the chase, Hooper held his gun out of

the window to shoot Redmond. Merrill sped up and turned

into a parking lot to prevent Hooper from shooting

Redmond. After this aborted attempt, Hooper and Bracy

moved out of Merrill’s home and into the apartment of

Valinda Lee Harper and Nina Marie Louie, two women

Merrill had introduced to Hooper and Bracy. At some point

during their trip, Merrill also introduced Hooper and Bracy

to McCall. Hooper and Bracy eventually returned to

Chicago.

Hooper and Bracy came back to Phoenix on December

30, 1980. That day, at Cruz’s direction, Merrill and George

Campagnoni drove by Redmond’s home and Graphic

Dimensions to verify the addresses. The next morning,

McCall dropped off Hooper and Bracy at Merrill’s home,

and Merrill gave Bracy a piece of paper with directions to

Redmond’s home and Graphic Dimensions. Later that

morning, McCall came back for Hooper and Bracy, and the

three left Merrill’s home. Dean Bauer (Cruz’s employee)

then came to Merrill’s home and dropped off two airplane

tickets from Phoenix to Chicago for “Sam Johnson” and

“Tony Jones.”

That same day, Louie arrived at her apartment around

noon. McCall, Hooper, and Bracy were already there. Bracy

asked Louie “what time it got dark” and said that they had

“some business to take care of.” All three men were armed

with guns. Louie had to work that night, and Harper

borrowed McCall’s car to drive Louie to work. Before

Harper and Louie left the apartment around 5:45 p.m.,

8 HOOPER V. SHINN

McCall told Harper that she needed to come back quickly

because “they had a very important appointment.”

Later that night, Hooper, Bracy, and McCall went to

Redmond’s home and killed Redmond and Phelps and

attempted to kill Marilyn. After the murders, they went to

Merrill’s home. Around midnight, Campagnoni drove

Hooper and Bracy from Merrill’s home to the Phoenix

airport with the airline tickets for “Sam Johnson” and “Tony

Jones.”

The day after the murders, McCall went to Harper’s and

Louie’s apartment and told them how the murders had been

committed, including describing his role and Hooper’s role

in committing them. He told them that it was a “contract . . .

hit, not [a] robbery” and that Hooper had cut Redmond’s

throat and shot Marilyn. McCall later detailed the crimes to

Merrill and told him that he was expecting $10,000 from

Chicago.

B. The Police Investigation

On New Year’s Eve 1980, Officer Louis Martinez

responded to a call that there were two or possibly three dead

bodies at the address of the Redmond home. When Officer

Martinez arrived, he questioned Marilyn who was conscious

but “had a very detached look on her face.” Marilyn told

him, “Three black men came in and robbed us.” She initially

reported to Officer Thomas Varela, who also questioned her

at the scene, that the intruders were all black. But Officer

Varela asked if she was sure, and Marilyn then told him that

two of the intruders were black and one was white. Later

that same night at the hospital, Marilyn reported to Officer

Jesus Perez that one of the intruders was white and the other

two were black. She also reported that one of the black

males was wearing a tan leather jacket with dark pants.

HOOPER V. SHINN 9

Around 9 p.m., about two hours after the murders, three

black men—Ronald Bradford, Michael Bradford, and

Novell Ward (collectively, the “Bradfords and Ward”)—

were arrested on traffic, weapons, and drug charges. Ronald

Bradford was very slender and had a wart on his forehead

above his nose. Ward was wearing a brown vinyl or leather

jacket with a fleece collar at the time of his arrest.

Around 10:05 p.m., while the Bradfords and Ward were

in custody, the Maricopa County Sheriff’s Office received

an anonymous call that a black man named “Slim” with a

wart on his nose was involved in the Redmond murders. The

caller said that Slim was currently at the corner of 13th and

Washington Streets. The police interviewed, photographed,

and fingerprinted the Bradfords and Ward, and the police

ultimately ruled them out as suspects in the Redmond

crimes.

On January 1, 1981, Harper called the police and

implicated Hooper, Bracy, and McCall in the murders.

During her interview, Harper said that she was with Bracy in

Phoenix on New Year’s Eve.

On January 4, 1981, officers executed a search warrant

on McCall’s home and vehicle. They found Long’s

Drugstore receipts inside his vehicle, showing that three

pairs of surgical gloves and adhesive tape had been

purchased the same day as the murders. They also found two

plastic gloves in a garbage bag at McCall’s home.

A fingerprint analyst lifted fingerprints from McCall’s

vehicle and the Redmond home. The analyst was unable to

match any to Hooper, Bracy, McCall, or the Bradfords and

Ward.

The State’s criminalist analyzed the bullets removed

from the victims and found at the crime scene and

10 HOOPER V. SHINN

determined that they were .38 caliber bullets, and that all had

been fired from the same gun. The bullets could have been

fired from a Colt Trooper .357 magnum.

Fifty-three days after the murders, Marilyn flew to

Chicago to view lineups of Hooper and Bracy. After

viewing the first lineup, which included Bracy, Marilyn

reserved judgment. After viewing the second lineup with

Hooper, Marilyn positively identified Hooper. Marilyn then

asked to see the first lineup again, and she identified Bracy.

C. The Trial

Hooper and Bracy were tried together. Each was

charged with conspiracy to commit first-degree murder

(Count One), two counts of first-degree murder (Counts Two

and Three), one count of attempted first-degree murder

(Count Four), three counts of kidnapping (Counts Five to

Seven), three counts of armed robbery (Counts Eight to

Ten), and one count of first-degree burglary (Count Eleven).

Their trial started on October 20, 1982. The jury convicted

Hooper and Bracy on all counts on December 24, 1982.

1. Hooper’s Defense Theory

Hooper’s and Bracy’s primary defense theory was that

they were in Chicago at the time of the murders. They also

argued that the prosecution’s investigation was improper,

mainly because of the improper conduct of the State’s

investigator, Daniel Ryan. They further argued that the

police had wrongly eliminated the Bradfords and Ward as

suspects.

Hooper did not testify, but his counsel laid out Hooper’s

defense in his opening statement. Hooper and Bracy had

come to Arizona in early December 1980, but not to kill

HOOPER V. SHINN 11

Redmond. Cruz and Merrill wanted to take over the South

Phoenix drug business, and they brought Hooper and Bracy

to Arizona to persuade them to kill the top drug dealers in

South Phoenix. Hooper and Bracy refused the job. In an

attempt to change their minds, Merrill introduced them to

women (Harper and Louie) and took them to the Gun Trader,

on Cruz’s tab. Cruz also gave them money. But Hooper and

Bracy still refused the job and left Arizona.

Cruz, Merrill, Campagnoni, McCall, Harper, and Louie

then become “paranoid” that Hooper and Bracy would turn

on them by informing the South Phoenix drug dealers about

their takeover plans. This motivated the group to frame

Hooper and Bracy for the Redmond murders. The group

then had McCall pay two unnamed black men to go with him

to Redmond’s home while McCall committed the murders,

and one day later Harper falsely reported to the police that

McCall, Hooper, and Bracy had committed the murders.

2. The State’s Evidence

The prosecution presented overwhelming evidence of

Hooper’s guilt. The most important witness was Marilyn, as

she was the only one who saw the intruders in her home.

Marilyn identified Hooper, Bracy, and McCall as the

murderers. Her in-court identifications were certain, and she

did not waiver when the defense suggested she could be

mistaken. The jury also learned that Marilyn had picked

Hooper and Bracy out of lineups before trial.

Marilyn provided very specific details about her lengthy

encounter with the murderers. Marilyn explained that they

gave her directions and asked her several questions. She

looked at their faces each time they spoke to her. At one

point during the encounter, she was positioned “[e]lbow to

elbow” with Hooper and she looked at him. She described

12 HOOPER V. SHINN

the clothing that each murderer wore. Bracy was wearing a

tan leather jacket, dark slacks, and a dark shirt. Hooper was

wearing a darker brown sports or leather coat and dark

slacks. McCall was wearing a light tan suit.

Marilyn testified that the men forced their way into the

home at gunpoint. Bracy directed her to hold the family dog

and close the drapes, and she complied. The intruders

demanded jewelry and money and asked if there was a safe

or any guns in the home. She gave Bracy the jewelry she

was wearing, told them there was a gun in the nightstand,

and showed Hooper the guns in the hall closet. Redmond

gave them his watch and ring, and one of the intruders

grabbed Phelps’s wedding ring as she tried to hide it under a

pillow. All three victims were eventually told to lie on the

bed, and Hooper taped their hands behind their backs.

Hooper then gagged all three using socks. Marilyn heard

McCall say, “[W]e don’t need these two anymore,” and then

she heard two shots. That was the last thing she remembered

before waking up.

The defense tried to discredit Marilyn by pointing out

inconsistencies between her testimony and prior statements.

For example, Marilyn initially reported to some witnesses

that the intruders were all black and that two wore masks.

Marilyn testified that she did not recall making the prior

statements or that they were wrong or had been

misinterpreted. The defense also tried to cast doubt on

Marilyn’s lineup identifications by, among other things,

suggesting that the State’s investigator, Ryan, had shown her

pictures of Hooper and Bracy before the lineups. Marilyn

testified that did not happen.

The defense presented an expert on human perception

and memory who testified that people make more mistakes

when they try to identify a person of a different race and that

HOOPER V. SHINN 13

violent events are more poorly stored in people’s memories.

On cross-examination, however, the expert conceded that

she could not opine on whether Marilyn experienced any

cross-racial identification problems. And the prosecutor

elicited testimony showing that Marilyn was skilled at

recognizing faces. She testified that she had worked as a

sales receptionist for seven years and was like a “visual

Rolodex” for the company.

Louie was also an important witness. She testified that

she met Hooper and Bracy in early December 1980 in

Phoenix. She overheard Bracy say that “he had a big job to

do” for $50,000 and “it wasn’t going to be very pretty.”

Bracy told her that he and Hooper would return to Phoenix

on New Year’s Eve.

On New Year’s Eve, Louie saw Hooper, Bracy, and

McCall at her apartment. McCall was wearing a suit, Bracy

and Hooper were wearing slacks and dark shirts, and one of

them had a brown leather jacket. She testified that all three

were armed with guns, and Hooper had a large gun “similar

to a .357 magnum or a large-barrel .38.” Bracy asked her

what time it got dark and said that they had “some business

to take care of.” McCall let Harper use his car to drive Louie

to work that night. McCall told Harper that she needed to

come back quickly because “they had a very important

appointment.”

The next day, McCall came to Louie’s apartment and

discussed the Redmond crimes. While watching the news,

McCall corrected the newscaster by stating that Marilyn was

not shot in the face but in the back of the head, like the other

two; the victims were not tied up, but were taped; and only

Redmond’s throat had been slashed. He said that Hooper

was the one who had shot Marilyn and cut Redmond’s

14 HOOPER V. SHINN

throat. McCall stated that it was a “professional job” and a

“contract . . . hit, not [a] robbery,” and that they wore gloves.

The State presented evidence corroborating parts of

McCall’s statements to Louie. It offered the two Long’s

Drugstore receipts found in McCall’s vehicle, showing that

three pairs of gloves and tape had been purchased on the day

of the murders. A Long’s Drugstore employee testified that

two men, one black and one white, bought three pairs of

gloves and adhesive tape on the day of the murders.

Redmond’s neighbors reported that a vehicle matching the

description of McCall’s car had been near the Redmond

home around the time of the murders.

Other evidence also corroborated Louie’s testimony. An

officer testified that Harper had called the police the day

after the murders and implicated Hooper, Bracy, and McCall

in the Redmond murders. The jury also learned that in a later

police interview, Harper said that she was with Bracy in

Phoenix on New Year’s Eve. 2

Campagnoni testified that he saw Hooper and Bracy at

Merrill’s home on New Year’s Eve. He saw Merrill give

Bracy a piece of paper with directions to the Redmond home

and Graphic Dimensions. Campagnoni testified that after

Hooper and Bracy left, Bauer came to Merrill’s home and

dropped off airline tickets with the names “Sam Johnson”

and “Tony Jones.”

Campagnoni next saw Hooper, Bracy, and McCall later

that evening when they returned to Merrill’s home. The

three had jewelry, some of which looked very similar to a

ring and watch owned by Redmond. Campagnoni drove

2

Harper did not testify because she could not be found.

HOOPER V. SHINN 15

Hooper and Bracy to the airport that night around midnight.

Bracy had the airline tickets that Bauer had dropped off

earlier, and Bracy told Hooper that he would be “Tony

Jones” and Hooper would be “Sam Johnson.”

Merrill also testified. He described the origin of and

motive for the plan to kill Redmond, including that he had

refused Cruz’s offer to kill Redmond for $10,000. Merrill

provided many details about Hooper’s and Bracy’s first trip

to Arizona in early December 1980. He said that he and Cruz

picked up Hooper and Bracy from the Phoenix airport.

During early December: he saw Cruz give Bracy a stack of

money, which Bracy shared with Hooper; he took the men

to the Gun Trader where they picked up three guns and

Hooper picked out a knife, which was paid for by Cruz and

looked like the same knife found at the crime scene; Merrill,

Hooper, and Bracy followed Redmond from a bar called

Chester’s Lounge, Hooper pointed his gun out the car

window to shoot Redmond, but Merrill stopped Hooper from

firing by turning into a parking lot; and after the chase,

Hooper and Bracy moved from Merrill’s home into Harper’s

and Louie’s apartment.

Merrill testified that, on December 30, 1980, Cruz

instructed him to tell McCall to pick up Bracy and Hooper

from the Phoenix airport and to pick up a package from the

Gun Trader. That same day, at Cruz’s direction, Merrill and

Campagnoni verified the addresses for the Redmond home

and Graphic Dimensions. The next morning, McCall

dropped off Hooper and Bracy at Merrill’s home. McCall

came back later that morning and left with Hooper and

Bracy. Bauer came to Merrill’s home in the afternoon and

dropped off two American Airlines tickets from Phoenix to

Chicago.

16 HOOPER V. SHINN

Merrill testified that Hooper, Bracy, and McCall came to

his home around 8:30 p.m. on New Year’s Eve. They had

with them several items that might have come from the

Redmond home, including a watch, ring, and gun holster.

Several days later, McCall told Merrill that he, Hooper, and

Bracy had committed the Redmond crimes. McCall told

Merrill that he was expecting a payment of $10,000 from

Chicago for the murders.

Merrill was severely impeached. Most significantly, the

jury learned that he had received a deal from the State giving

him immunity for the Redmond crimes, including the first-

degree murders of Redmond and Phelps for which he could

have received the death penalty, as well as immunity for

unrelated crimes. 3 Thus, the jury knew Merrill had a very

strong personal stake in the case and motive to lie. The

defense also showed that Merrill had received special

treatment from the State and Ryan: Merrill was placed in a

more inmate-friendly, out-of-state prison as part of his deal;

Ryan did not immediately arrest him in New York even

though he was wanted for first-degree murder; Ryan allowed

him to travel unrestrained from New York to Arizona despite

being a wanted murderer; and Ryan took Merrill out of jail

for a conjugal visit.

The defense also cast significant doubt on Merrill’s

credibility by showing that Ryan had stopped his tape-

recorded interview with Merrill more than twenty times.

Neither Merrill nor Ryan could provide any plausible

explanations for the interruptions, and the defense

persuasively argued that Ryan must have paused the tapes to

coach Merrill on what to say. The defense gave the jury

3

As part of his plea deal, Merrill pleaded guilty to an unrelated

burglary and theft and received an eight-year sentence.

HOOPER V. SHINN 17

many other reasons to discredit Merrill’s testimony: he had

previously lied to the police in this case and had initially

helped cover up the crimes; he was part of a group that

committed burglaries and robberies, and he had sold stolen

property; he had hired someone to commit arson for Cruz;

he was a drug dealer and had a long history of abusing

prescription medications; and Merrill’s friend, Campagnoni,

testified that Merrill was a braggart, and even Merrill’s own

brother, Kleinfeld, testified that he was a “story teller, liar,

[and] bragger.”

The defense further impeached Merrill by highlighting

many inconsistencies between his testimony and his prior

statements. For example: Merrill testified that he did not

get together with Campagnoni to make up a story, but

Merrill had previously stated that he told Campagnoni to

deny to the police that any black individuals had been at his

home; Merrill testified that the bullets he threw away in a

canal could not have been the same type that killed

Redmond, but he previously testified that they could have

been; and he testified that he was not the leader of a criminal

group, which contradicted his prior testimony. Parts of

Merrill’s testimony also contradicted other evidence, giving

the jury even more reasons to disbelieve him. For example,

Kleinfeld testified that Merrill picked out the knife at the

Gun Trader, not Hooper, and Campagnoni testified that

Merrill gave Bracy .38 caliber ammunition on New Year’s

Eve, but Merrill denied giving any bullets to Hooper, Bracy,

or McCall.

The State’s case included evidence beyond the

testimonies of Marilyn, Louie, Campagnoni, and Merrill.

Several other witnesses testified about the motive for the

killings. Graphic Dimensions employees testified that they

had seen Cruz touring Graphic Dimensions around mid-

18 HOOPER V. SHINN

1980. William Michael Tompkins, a pilot whom Cruz had

hired on occasion, testified that during the summer of 1980

he overheard Cruz say that he wanted to take over a printing

business to launder money and that he was “going to have to

get rid of” the uncooperative business partner.

Tompkins also testified that, around December 28, 1980,

Cruz had asked him to rent a private plane because the same

two black men who had been in Phoenix in early December

were coming back to Phoenix and did not want to fly

commercial. Cruz, however, called Tompkins the next night

and told him to cancel the plane because the men had decided

to fly commercial. Bauer testified that on December 31,

1980, at Cruz’s direction, he purchased two one-way tickets

from Phoenix to Chicago on the red-eye flight that left at

2:00 a.m. Bauer testified that he delivered the tickets to

Merrill’s home at Cruz’s direction. The State’s evidence

included the two one-way tickets, and an airline

representative testified that the tickets had been used. This

corroborated that Hooper and Bracy were in Phoenix on

New Year’s Eve.

Telephone records further supported that Hooper and

Bracy were then in Phoenix, not Chicago. The records

showed that, on December 31, 1980, two phone calls were

made from Merrill’s home in Phoenix to Ann Harris’s home

in Chicago (Harris was the mother of Hooper’s then-

girlfriend). Other records showed that Bracy made calls

from his home in Chicago to Cruz’s home in Illinois and the

Gun Trader in the days before the murders. No calls were

made from Bracy’s home to Cruz’s Illinois home on the day

of the murders, but the calls from Bracy’s home to Cruz’s

Illinois home resumed immediately after. The State argued

that these telephone records showed that Bracy and Hooper

were in Phoenix on the day of the murders.

HOOPER V. SHINN 19

The jury learned about evidence from which it could

infer that Hooper possessed both the murder weapon and the

knife that was used to slash Redmond’s throat. The bullets

removed from the victims had been fired from the same

weapon, which could have been a Colt Trooper .357

magnum. Kleinfeld testified that he sold three guns to Cruz

in December 1980, including a .357 Colt Trooper and .22

Ruger, and that McCall had picked up those two guns at the

Gun Trader around December 30, 1980, the day before the

murders. Louie testified that on the day of the murders,

Hooper was with McCall and had a gun similar to a .357

magnum. Kleinfeld also testified that around early

December 1980, Merrill, Hooper, and Bracy had come to the

Gun Trader and left with a knife that was the same or very

similar to the knife found at the crime scene, which had been

used to cut Redmond’s throat.

3. Evidence Relating to the Bradfords and Ward

During the defense’s cross-examination of Detective

Ronald Quaife, the jury learned that three black men, the

Bradfords and Ward, had been arrested on the night of the

murders for traffic, weapon, and drug charges. Detective

Quaife described Ronald Bradford as slender and having a

wart above his nose. He stated that Ward had been wearing

a brown leather or vinyl jacket at the time of his arrest. He

also testified about the anonymous call made to the Sheriff’s

Office around 10:05 p.m. while the Bradfords and Ward

were in custody. Detective Quaife said the caller reported

that a black male matching the description of Ronald

Bradford had committed the Redmond crimes. He explained

that the Bradfords and Ward were ruled out as suspects based

on the temporal proximity between the murders and their

arrests.

20 HOOPER V. SHINN

During redirect of Detective Quaife, the prosecutor

asked about photos that had been taken of Ronald Bradford.

From this questioning, the defense realized that the

prosecution had withheld arrest photos of the Bradfords and

Ward. They then moved for a mistrial. The court denied the

mistrial motion but granted the defense’s motion to exclude

Detective Quaife’s testimony about the photos as improper

redirect exceeding the scope of cross-examination. The

court then instructed the jury to disregard any reference to

the photos.

The next day, the defense learned through Officer

Michael Midkiff’s testimony that the prosecution may have

failed to disclose all the police reports on the Bradfords and

Ward. Hooper moved for a mistrial based on this purported

failure, and the court conducted a brief hearing. Later that

day, the court resumed the hearing on the mistrial motion

based on the alleged undisclosed reports. During the

hearing, Bracy’s counsel informed the court that he would

be moving for some of the photos of the Bradfords and Ward

to be admitted. Presumably, the photos had been provided

to the defense by this time. The photos included color

photographs taken from different angles and showed what

they were wearing when arrested. The court ultimately

denied the mistrial motion. But as a remedy, it ordered that

the two detectives who had interviewed the Bradfords and

Ward be available to the defense for interviews. 4

About five days later, while the State was still presenting

its case, the prosecution provided the undisclosed reports on

4

We are unable to discern from the record whether the defense

interviewed these two detectives.

HOOPER V. SHINN 21

the Bradfords and Ward to the defense. 5 The defense was

provided the undisclosed photos of and reports on the

Bradfords and Ward at least three weeks before Hooper

presented his defense.

The State used the photos during Marilyn’s direct

examination. Though the photos had not yet been admitted,

the prosecutor showed Marilyn the photos of the Bradfords

and Ward, and she testified that she did not see these men on

New Year’s Eve.

The photos were later admitted through Hooper’s first

witness, Detective Quaife. During cross-examination, the

prosecutor successfully, and without objection, admitted the

photos. On redirect, the court granted Hooper’s request that

the photos be published to the jury.

Hooper also used the undisclosed reports in questioning

Detective Quaife. During Hooper’s direct examination, the

jury learned that Detective Quaife had been asked by the

prosecution during the trial to look for arrest records on the

Bradfords and Ward and that Detective Quaife had found

them. Detective Quaife testified that, based on these records,

he learned that the Bradfords and Ward had been arrested at

9 p.m. at a location about twenty minutes from the Redmond

home. The defense drew out other details based on the

reports, which called into doubt the reasons the police had

discounted the Bradfords and Ward as suspects for the

Redmond crimes.

5

Before trial, the prosecution had disclosed police reports that

mentioned some of the circumstances of the arrests of the Bradfords and

Ward as well as the anonymous call. The undisclosed reports revealed

more detail about the circumstances of the arrests.

22 HOOPER V. SHINN

The jury also learned more details about the anonymous

call through the prosecutor’s cross-examination of Detective

Quaife. The caller said that he had seen the newscast of the

homicides and that one of the persons involved was at 13th

Street and Washington. The caller said that the person

involved was a black male named “Slim” and that Slim had

a wart on the side of his nose.

4. Defense Evidence

The defense put on evidence showing that the State’s

investigator, Ryan, used improper investigatory tactics and

engaged in other improper conduct. For example, Kleinfeld

testified that Ryan had threatened to break his legs if he did

not tell him what he wanted to know. Wally Roberts, who

worked with Graphic Dimensions, testified that Ryan had

given him cash and told him not to cooperate with the

defense and to lie to the police. The jury also learned that

Ryan had provided false answers to Campagnoni’s

presentence report writer to help Campagnoni obtain a

lighter sentence.

Hooper and Bracy presented several alibi witnesses.

Hooper’s witnesses included Mary Jean and Michael

Wilson, two friends of Hooper’s brother, who testified that

they had seen and spoken with Hooper on the day of the

murders at a flea market in Chicago. Nelson Booker, another

friend of Hooper’s brother, testified that he had seen and

spoken with Hooper at a New Year’s Eve party at a Chicago

club.

5. Closing Arguments and Verdict

The prosecutor’s closing argument reviewed all the

evidence. The prosecutor discussed the evidence supporting

the motive for Redmond’s murder, including the various

HOOPER V. SHINN 23

witnesses who knew about the potential Las Vegas business

and Tompkins’s testimony that Cruz said one of the business

partners had to be eliminated. He highlighted Marilyn’s

testimony about the details of the crimes, her pretrial

identifications, and her confident in-court identifications of

Hooper and Bracy as the killers. The prosecutor also

discussed the testimonies of Merrill, Kleinfeld, Tompkins,

Bauer, Campagnoni, Louie, and the Long’s Drugstore

employee. He reminded the jury about the gloves and

receipts found in McCall’s home and vehicle, the plane

tickets bought by Bauer, and the telephone records.

Hooper’s counsel maintained during closing that Hooper

was in Chicago at the time of the murders. He argued that

the testimonies of Merrill, Campagnoni, Louie, and Marilyn

were unreliable. He pointed out that Merrill had to stick to

his story, which was a lie, because “[i]f he change[d] it now,

he [could] be tried for first degree murder and sent to death

row.” Hooper’s counsel also emphasized the information in

the undisclosed reports, arguing that the officers’ reasons for

discounting the Bradfords and Ward as suspects were not

believable and that there was more evidence connecting

them to the Redmond crimes than there was against Hooper.

Hooper’s counsel did not focus on the photos. The

prosecution, however, specifically asked the jury to compare

the photos to Marilyn’s descriptions of the intruders.

Bracy’s counsel did not mention the Bradfords or Ward in

his closing statement.

The jury deliberated for three days and found both

defendants guilty as charged on all eleven counts, including

the two first-degree murder counts.

24 HOOPER V. SHINN

D. Sentencing

Hooper’s prior convictions were relevant for sentencing

purposes, and on January 6, 1983, the court held a hearing as

to those convictions. Hooper’s trial counsel, Grant Woods,

was not present, and Allen Gerhardt, another public

defender, appeared instead. The State presented evidence

that Hooper had been convicted on September 23, 1981, in

Illinois, on three counts of first-degree murder, three counts

of armed robbery, and three counts of aggravated

kidnapping, and the court so found later during Hooper’s

sentencing.

Before the hearing on aggravating and mitigating

circumstances under Arizona’s death statute, A.R.S. § 13-

703 (1982), 6 the prosecutor notified Hooper’s counsel that

the State intended to call one Phoenix officer and two

Chicago officers to testify at the aggravation and mitigation

hearing. The prosecutor stated that the officers would testify

about these statements made by Hooper: “They (the people

in Phoenix) thought Bracy was high-class, and me a low-

class dog. But those people in Phoenix weren’t that sharp,

they gave me $10,000 for killing Redmond and his family

and I would have done it for a couple hundred dollars a

person”; “I can’t handle myself out of the pen, can’t even get

a driver’s license, most of the time I’m just drunk. I’m better

off dead or in the pen because if I got out again I would

6

All citations to A.R.S. § 13-703 refer to the version in effect in

1982.

HOOPER V. SHINN 25

probably just kill someone again”; and “I like to shoot

people, it doesn’t bother me a bit.” 7

On February 4, 1983, the court conducted the

aggravation and mitigation hearing. Gerhardt also

represented Hooper at this hearing. The parties received

copies of Hooper’s presentence report (“PSR”) on the day of

the hearing, and before the start of the hearing, the court

granted a recess to allow counsel to review the PSR. The

PSR showed that Hooper, born in 1945, had a long adult

criminal history, starting when he was eighteen. Hooper

started out with a disorderly conduct conviction in 1963 and

then progressed to robbery and armed robbery convictions.

In 1969, he was charged with murder but pleaded guilty to

manslaughter. In 1977, he was convicted of attempted

murder. As noted, Hooper was convicted in Illinois in 1981

of three counts of first-degree murder, three counts of armed

robbery, and three counts of aggravated kidnapping, for

crimes committed in November 1980.

The prosecutor asked the court to find the existence of

aggravators based on the evidence in the record and

Hooper’s 1981 Illinois convictions. The prosecutor did not

bring up the details of Hooper’s other criminal convictions

or his admissions, but the court was aware of this

information because it was in the PSR and in the

supplemental PSR. Hooper’s counsel presented no

evidence.

7

As far as we can tell from the record, the State did not present these

admissions at trial because it agreed not to use them after Hooper moved

for their suppression. These admissions were disclosed to the trial judge

in a supplemental presentence report after the aggravation and mitigation

hearing but before sentencing.

26 HOOPER V. SHINN

Woods and Gerhardt appeared at Hooper’s sentencing on

February 11, 1983. Woods pleaded for mercy, urging the

judge that he should not “order a murder” and that a death

sentence was unnecessary because Hooper had already been

sentenced to death by an Illinois state court.

The court sentenced Hooper to life imprisonment on

Count One, and multiple consecutive sentences of thirty-five

years for Counts Four through Eleven. As to Counts Two

and Three for the first-degree murders of Redmond and

Phelps, the court determined that the State had established

five of the seven statutory aggravating factors under

Arizona’s death statute:

(1) Hooper had a prior conviction for which a life

sentence or death was imposable under Arizona law.

See A.R.S. § 13-703(F)(1). The court found that

Hooper’s three first-degree murder 1981 convictions

in Illinois satisfied this factor.

(2) Hooper had a prior felony conviction involving the

use or threat of violence on another person. See

A.R.S. § 13-703(F)(2). The court found that

Hooper’s three armed robbery and three aggravated

kidnapping 1981 convictions in Illinois satisfied this

factor.

(3) Hooper knowingly created a grave risk of death to

people other than the victims in the instant offense.

See A.R.S. § 13-703(F)(3). The court found this

factor established by the fact that Marilyn had been

placed in a position of grave risk of death given the

manner in which the crimes had been committed.

(4) Hooper committed the offense in expectation of

receiving something of pecuniary value. See A.R.S.

HOOPER V. SHINN 27

§ 13-703(F)(5). The court found this factor

established by the fact that Hooper and his

coconspirators were to receive money, or did receive

money, for the contract killing of Redmond.

(5) Hooper committed the offenses in an especially

heinous, cruel, or depraved manner. See A.R.S.

§ 13-703(F)(6). The court found this factor

established given the manner in which the crimes had

been committed. Redmond was “shot twice in the

head at close range after having been bound and

gagged,” and, after the shots were fired, his “throat

was cut from ear to ear with a large butcher-type

knife.” Phelps was “bound, gagged, [laid] across the

bed and shot at close range with a high caliber

pistol,” and she “did not die from the first wound and

was shot a second time.”

The court noted that Hooper presented no mitigating

evidence and determined that Hooper had failed to establish

the existence of any of the statutory mitigating factors. The

court concluded, “Based upon the findings of those five

aggravating circumstances, and the fact that there are no

mitigating circumstances sufficiently substantial to call for

leniency; as to Counts II and III, it is ordered that [Hooper

is] sentenced to die . . . .” 8

8

At the time of Hooper’s sentencing, Arizona law required the trial

judge (rather than a jury) to determine the existence of aggravating

circumstances. See A.R.S. § 13-703(B). The Supreme Court later held

that this process is unconstitutional in Ring v. Arizona, 536 U.S. 584, 609

(2002). But Ring does not apply retroactively. Schriro v. Summerlin,

542 U.S. 348, 358 (2004).

28 HOOPER V. SHINN

E. Procedural History

1. Direct Appeal

On June 10, 1985, the Arizona Supreme Court affirmed

Hooper’s convictions and sentence. State v. Hooper, 703

P.2d 482 (Ariz. 1985) (en banc). We discuss the relevant

portions of the decision—those concerning the alleged

Brady violations and Hooper’s death sentence.

The Arizona Supreme Court analyzed five alleged Brady

violations. Id. at 494 (explaining that Hooper’s

constitutional arguments were addressed in the companion

decision in State v. Bracy, 703 P.2d 464 (Ariz. 1985) (en

banc), decided the same day). Three of those alleged

violations are at issue: (1) the delayed disclosure of the

photos of the Bradfords and Ward; (2) the delayed disclosure

of the police reports on the Bradfords and Ward; and

(3) undisclosed benefits that the State and Ryan provided to

Merrill and his wife. Bracy, 703 P.2d at 471.

As for the photos, the Arizona Supreme Court found that

defense counsel objected to their admission, and the trial

court excluded them and instructed the jury to disregard

them. Id. at 472. Given those facts, the Arizona Supreme

Court concluded that “either [the] photographs were not

exculpatory or defense counsel did not want them in

evidence for some other reason” and “defendant did not

suffer prejudice from the nondisclosure of this evidence.”

Id.

The Arizona Supreme Court found that the police reports

were disclosed “during trial and defendant made use of

[them].” Id. Given this, the court determined that there was

no Brady violation as to the police reports. Id.

HOOPER V. SHINN 29

The defense had been informed prior to trial of certain

benefits the State and Ryan provided to Merrill. Other such

benefits came to light only after trial. Id. at 471. These

undisclosed benefits were:

1) Prior to trial, Dan Ryan, county attorney

investigator, made car payments for Arnold

Merrill’s wife, Cathy Merrill, totaling over

$800.00 for which Ryan received only partial

reimbursement;

2) Mrs. Merrill also received approximately

$3,000 from the Maricopa County Attorney’s

Protected Witness Program; [and]

3) Arnold Merrill made approximately

twenty-two long distance phone calls from

the county attorney’s office, some of which

were with Dan Ryan’s knowledge, others of

which Merrill made while left unattended in

Ryan’s custody, and none of which he paid

for.

Id. For convenience, we refer to these benefits discovered

after trial as the “Merrill benefits.”

Applying Brady, the Arizona Supreme Court determined

that the Merrill benefits were favorable to Hooper and had

been suppressed. Id. at 472. In analyzing Brady

“materiality,” the court determined that the Merrill benefits

had been specifically requested by the defense. Id. Thus,

under United States v. Agurs, 427 U.S. 97 (1976), the

evidence fell within the category of undisclosed evidence

that had been specifically requested by the defense, and

materiality turned on “whether the suppressed evidence

30 HOOPER V. SHINN

might have affected the outcome of the trial.” Bracy,

703 P.2d at 472 (citing Agurs, 427 U.S. 97).

Applying that standard, the Arizona Supreme Court

found that the Merrill benefits were not material for two

reasons. First, the evidence was “merely cumulative” of the

“wealth of impeaching evidence against Arnold Merrill.” Id.

at 473. “Such evidence included Merrill’s plea bargain with

the state; his extensive drug use; his past participation in

arson, burglary, kidnapping, and robbery; his past lies to

police officers; and his private out-of-jail visit with his wife

while being incarcerated for first degree murder.” Id. Given

this “wealth of impeaching evidence,” the Arizona Supreme

Court reasoned that it did “not believe the disclosure of

benefits equaling several thousand dollars would have had

any effect upon the outcome of the trial.” Id.

Second, the court considered the Merrill benefits in light

of the other evidence produced at trial and determined that

the evidence would not have affected the outcome. Id. The

court noted that Marilyn gave “strong eyewitness testimony”

and that the Merrill benefits, which could have been used to

impeach Merrill and Ryan, “had no effect upon [Marilyn’s]

key testimony.” Id. Additionally, Merrill’s testimony was

“not pivotal,” as several other witnesses “showed

defendant’s presence in Phoenix in early and late December,

his connection to Robert Cruz, and his participation in

Cruz’s conspiracy to kill Pat Redmond.” Id.

The Arizona Supreme Court found no Brady violation:

“[W]e do not believe that three additional pieces of

impeaching information regarding Arnold Merrill might

have affected the jury’s belief in Mrs. Redmond and the

other evidence. Nor would it have had any effect on

whatever opinion the jury had of Merrill’s credibility.” Id.

HOOPER V. SHINN 31

Regarding Hooper’s death sentence, the court

independently reviewed the record and vacated one

aggravating circumstance found by the sentencing court—

that Hooper created a grave risk of death to Marilyn under

A.R.S. § 13-703(F)(3)—and upheld the remaining four

aggravating circumstances. Hooper, 703 P.2d at 494–95;

see also Bracy, 703 P.2d at 481. The Arizona Supreme

Court then determined that there were no mitigating

circumstances and concluded that Hooper’s death sentence

was proper. Hooper, 703 P.2d at 495.

2. State Habeas Petitions

From 1986 through 2017, Hooper filed five state post-

conviction petitions. The Arizona Supreme Court

summarily denied the first four petitions and, as of the time

Hooper filed his replacement opening brief in our court, the

fifth remained pending. We discuss his state petitions

relevant to this appeal.

Philip Seplow was appointed to represent Hooper in his

first state petition, filed in 1986. Seplow also represented

Hooper in his second state petition, filed in 1992. In this

second proceeding, Seplow alleged that he had been

ineffective for failing to raise an ineffective assistance of

counsel claim in Hooper’s first post-conviction proceeding

based on trial counsel’s (Woods) failure to present

mitigation evidence at sentencing. The post-conviction

court denied the second petition and determined that

Hooper’s ineffective assistance of sentencing counsel claim

was procedurally barred. The Arizona Supreme Court

summarily denied Hooper’s petition for review.

In his fourth petition, filed in 1999, Hooper argued that

his death sentence was unconstitutional because it was based

in part on his 1981 Illinois convictions, which were likely

32 HOOPER V. SHINN

invalid. On October 19, 2005, the post-conviction court

rejected this argument because, at the time, the Illinois

convictions remained valid. Alternatively, the post-

conviction court found that, even assuming the Illinois

convictions were invalid, Arizona law required a death

sentence because there were still two valid aggravating

circumstances and no mitigating circumstances.

Hooper petitioned the Arizona Supreme Court for

review, arguing that a death sentence based on invalid

convictions violates the Eighth Amendment. Though

Hooper’s petition mentioned the Fourteenth Amendment, he

did not raise a due process argument based on his Illinois

convictions. And when Hooper supplemented his petition

by providing the Arizona Supreme Court with a citation to

Brown v. Sanders, 546 U.S. 212 (2006), he still did not allege

a due process violation. On April 20, 2006, the Arizona

Supreme Court summarily denied his petition.

3. Federal Habeas Petition

In 1998, Hooper filed the federal habeas petition that led

to this appeal. His supplemental petition included a claim

that his death sentence violated the Eighth and Fourteenth

Amendments because it was based on the likely invalid

Illinois convictions. The district court found that this claim

was unexhausted, ordered Hooper to withdraw it, and

entered a stay pending exhaustion of the claim. After

waiting more than five years, the district court vacated the

stay but determined that Hooper could move for leave to

amend his habeas petition once he exhausted his claim in

state court.

In 2006, having purportedly exhausted that claim,

Hooper sought leave to amend his petition to add it. The

district court denied Hooper’s motion to amend, finding that

HOOPER V. SHINN 33

the claim was meritless and thus amendment would be futile.

The district court also denied Hooper’s claim that his trial

counsel had provided ineffective assistance at sentencing by

failing to investigate and present mitigation evidence. The

district court determined that the claim was procedurally

defaulted because Hooper had failed to present it in his first

state post-conviction petition.

The district court ultimately denied Hooper’s petition in

2008. In its order denying the petition, the district court

analyzed thirteen alleged Brady violations, including, as

relevant here, the delayed disclosures of the photos and

police reports and the nondisclosure of the Merrill benefits.

In analyzing the Arizona Supreme Court’s decision on the

Brady claims, the district court determined the clearly

established law for purposes of the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA) was Brady,

Agurs, and United States v. Bagley, 473 U.S. 667 (1985).

Applying that clearly established law, the district court

found that the Arizona Supreme Court’s denial of the Brady

claims based on the photos was not objectively unreasonable

because the photos were not admitted at trial. It also found

that the Arizona Supreme Court’s decision regarding the

police reports was not objectively unreasonable because

Hooper used the reports during trial. The district court

determined that the Arizona Supreme Court’s decision that

the Merrill benefits were immaterial was not contrary to or

an unreasonable application of Supreme Court precedent.

The district court granted a certificate of appealability on the

Brady claims, and Hooper timely appealed.

In 2012, Hooper moved to stay the appeal and remand

the case pursuant to Martinez v. Ryan, 566 U.S. 1 (2012).

He also requested a remand for the district court to

reconsider its denial of leave to amend. A motions panel of

34 HOOPER V. SHINN

this court granted both requests. In part, the panel believed

remand appropriate because, while his case was pending on

appeal, the United States District Court for the Northern

District of Illinois had granted habeas relief to Hooper and

vacated his 1981 Illinois convictions. 9

On remand, the district court again denied relief on the

two remanded issues. It denied the ineffective assistance of

sentencing counsel claim as procedurally barred, as Hooper

failed to demonstrate “cause” under Martinez to excuse the

procedural default. The court again denied Hooper’s request

to amend the petition to include the Eighth and Fourteenth

Amendment claim because it was meritless and therefore

any amendment would be futile. Finally, the district court

granted Hooper’s request to expand the record with the

materials attached to his supplemental briefs submitted on

remand, denied his requests for discovery and an evidentiary

9

In 2013, the Seventh Circuit vacated the Illinois district court’s

denial of Hooper’s habeas petition. Hooper v. Ryan, 729 F.3d 782, 787

(7th Cir. 2013). The court determined that the Illinois Supreme Court

had unreasonably applied Batson v. Kentucky, 476 U.S. 79 (1986).

729 F.3d at 787. The court remanded the case to the district court for an

evidentiary hearing and an independent Batson determination as to what

had occurred at the trial, thirty-two years before. Id.

On remand, the prosecution declined an evidentiary hearing, and so

the district court granted the writ and vacated the Illinois convictions and

life sentences (the Governor of Illinois had commuted all Illinois death

sentences, including Hooper’s). Final Judgment, Hooper v. Ryan, No.

10-CV-01809 (N.D. Ill. Dec. 16, 2013), ECF. No. 81; see also People ex

rel. Madigan v. Snyder, 804 N.E.2d 546, 550, 560 (Ill. 2004) (denying

writ of mandamus challenging then-Governor’s grant of blanket

clemency to over 160 inmates who had been sentenced to death). Illinois

has not retried Hooper.

HOOPER V. SHINN 35

hearing, and granted a certificate of appealability on both

remanded issues.

Hooper filed a timely amended notice of appeal.

II. STANDARD OF REVIEW

We review the district court’s denial of a habeas petition

de novo. Reis-Campos v. Biter, 832 F.3d 968, 973 (9th Cir.

2016). This case is governed by AEDPA. See Lambert v.

Blodgett, 393 F.3d 943, 965 (9th Cir. 2004). Thus, we may

not grant habeas relief with respect to any claim adjudicated

on the merits in state court unless the state court’s decision

was “contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the

Supreme Court of the United States,” 28 U.S.C.

§ 2254(d)(1), or “based on an unreasonable determination of

the facts in light of the evidence presented in the State court

proceeding,” id. § 2254(d)(2).

A state-court decision is contrary to Supreme Court

precedent if “the state court arrives at a conclusion opposite

to that reached by th[e Supreme] Court on a question of law”

or “the state court confronts facts that are materially

indistinguishable from a relevant Supreme Court precedent

and arrives at a result opposite to [the Supreme Court’s].”

Williams v. Taylor, 529 U.S. 362, 405 (2000). “A decision

involves an ‘unreasonable application’ of clearly established

federal law under § 2254(d)(1) if it ‘identifies the correct

governing legal principle . . . but unreasonably applies that

principle to the facts of the prisoner’s case.’” Vega v. Ryan,

757 F.3d 960, 965 (9th Cir. 2014) (per curiam) (alteration in

original) (quoting Williams, 529 U.S. at 413). “The

‘unreasonable application’ clause requires the state court

decision to be more than incorrect or erroneous. The state

court’s application of clearly established law must be

36 HOOPER V. SHINN

objectively unreasonable.” Lockyer v. Andrade, 538 U.S.

63, 75 (2003) (citation omitted).

“[C]learly established Federal law” under AEDPA

includes only the Court’s decisions as of the time of the

relevant state-court adjudication on the merits. See Greene

v. Fisher, 565 U.S. 34, 38 (2011). “If no Supreme Court

precedent creates clearly established federal law relating to

the legal issue the habeas petitioner raised in state court, the

state court’s decision cannot be contrary to or an

unreasonable application of clearly established federal law.”

Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004).

Moreover, “[w]hen a state court has applied clearly

established federal law to reasonably determined facts in the

process of adjudicating a claim on the merits, a federal

habeas court may not disturb the state court’s decision unless

its error lies ‘beyond any possibility for fairminded

disagreement.’” Shinn v. Kayer, 592 U.S. ----, 2020 WL

7327827, at *1 (2020) (per curiam) (quoting Harrington v.

Richter, 562 U.S. 86, 103 (2011)).

Under § 2254(d)(2), “a state-court factual determination

is not unreasonable merely because the federal habeas court

would have reached a different conclusion in the first

instance.” Wood v. Allen, 558 U.S. 290, 301 (2010).

When a district court denies leave to amend based on a

determination that the proposed claim would be futile, we

review the determination of futility de novo. Murray v.

Schriro, 745 F.3d 984, 1015 (9th Cir. 2014). We also review

de novo a district court’s procedural default determinations.

Runningeagle v. Ryan, 825 F.3d 970, 978 (9th Cir. 2016).

HOOPER V. SHINN 37

III. DISCUSSION

We first address the three certified issues: (1) whether

nondisclosure of the Merrill benefits and delayed disclosures

of the photos and reports violated Hooper’s due process

rights under Brady 10; (2) whether the district court erred in

denying him leave to amend his petition to add a claim that

his death sentence violates the Eighth and Fourteenth

Amendments because his sentence was based in part on

invalid Illinois convictions; and (3) whether Martinez

excuses the procedural default of his ineffective assistance

of sentencing counsel claim. We then address the two

uncertified issues: (1) whether Hooper was

unconstitutionally shackled at trial; and (2) whether the

unconstitutional shackling caused him to involuntarily

waive his right to be present at voir dire because it forced

him to choose between two constitutional rights. We

construe Hooper’s briefing on these uncertified issues as a

request to expand the certificate of appealability (COA). See

Ninth Circuit Rule 22-1(e).

A. Brady Claims

The last state-court adjudication on the merits of

Hooper’s Brady claims is the Arizona Supreme Court’s

10

Although Hooper alleged thirteen Brady violations in the district

court, he discusses only the photos, police reports, and Merrill benefits

in his briefs. And he fails to present any argument that any alleged

nondisclosures, other than those three, were material under Brady. The

State argues in its answering brief that Hooper abandoned all of his

Brady claims other than the three he discusses in his opening brief, and

Hooper does not dispute this argument in his reply brief. Accordingly,

Hooper has preserved only the Brady claims as to the photos, police

reports, and Merrill benefits. See Petrocelli v. Angelone, 248 F.3d 877,

880 n.1 (9th Cir. 2001) (holding that a petitioner in a capital case

abandoned several claims for lack of argument supporting the claims).

38 HOOPER V. SHINN

decision on direct appeal. See Hooper, 703 P.2d at 494; see

also Bracy, 703 P.2d at 471–74. The decision was issued on

June 10, 1985, and thus clearly established law includes only

the Supreme Court decisions issued by that date. See

Greene, 565 U.S. at 38. Because Bagley, 473 U.S. 667, was

issued on July 2, 1985, it was not clearly established. 11 Thus,

the district court erred in relying on Bagley. 12

The clearly established law at the time of the Arizona

Supreme Court’s decision was Brady, 373 U.S. 83 (1963),

and Agurs, 427 U.S. 97 (1976). Brady established the three

elements of a due process violation based on the suppression

of evidence: (1) the evidence is favorable to the accused,

(2) the prosecution suppressed the evidence, and (3) the

evidence is “material.” 373 U.S. at 87. In Agurs, the Court

differentiated between three nondisclosure situations to

which Brady applies: (1) where the undisclosed evidence

shows “that the prosecution’s case includes perjured

testimony and that the prosecution knew, or should have

known, of the perjury,” 427 U.S. at 103, (2) where the

defense makes a specific request, and the prosecutor fails to

provide responsive evidence, id. at 104, and (3) where the

defense makes a general request or no request, and the

prosecutor suppresses favorable evidence, id. at 106–07.

11

The State appears to concede that Bagley was clearly established.

We reject this concession because parties cannot waive § 2254(d)’s

standard of review. Amado v. Gonzalez, 758 F.3d 1119, 1133 n.9 (9th

Cir. 2014) (“[The court has] the obligation to apply the correct [AEDPA]

standard, for the issue is non-waivable.”).

12

We note that the district court did not have the benefit of Greene

v. Fisher, 565 U.S. 34 (2011), when it identified the applicable clearly

established law.

HOOPER V. SHINN 39

Hooper’s claims fall within situation (2), “specific request”

cases.

Agurs established different materiality standards for

situations (1) and (3). Agurs did not set forth a materiality

standard for situation (2), but the Court did explain that

“material” means that “the suppressed evidence might have

affected the outcome of the trial.” Id. at 104. 13 Thus, even

though the Supreme Court had not announced a precise

materiality standard for “specific request” cases at the time

of the Arizona Supreme Court’s decision, Brady and Agurs

had established governing legal principles that apply in such

cases—a defendant must show that the evidence was

suppressed, favorable, and material, meaning the evidence

might have affected the outcome of the trial. See Brady,

373 U.S. at 87; Agurs, 427 U.S. at 104. These legal

principles are the applicable clearly established law for

AEDPA purposes here. See Lockyer, 538 U.S. at 71–72

(“‘[C]learly established Federal law’ under § 2254(d)(1) is

the governing legal principle or principles set forth by the

Supreme Court at the time the state court renders its

decision.”). 14

13

The Supreme Court later clarified in Bagley that Agurs did not

establish a materiality standard for “specific request” cases. Bagley,

473 U.S. at 681. Rather, the Court explained that its statement in Agurs

that “Brady indicates that implicit in the requirement of materiality is a

concern that the suppressed evidence might have affected the outcome

of the trial,” was merely an explanation of the “meaning of the term

‘materiality.’” Id. at 681 n.12 (citation omitted).

14

Hooper identifies no Supreme Court precedent in existence at the

time of the Arizona Supreme Court’s decision that established a more

favorable materiality standard for “specific request” cases than the

materiality principle in Agurs, nor are we aware of any. Thus, even if

we are somehow incorrect in our determination that there was clearly

40 HOOPER V. SHINN

1. AEDPA Analysis Regarding Merrill Benefits

The Arizona Supreme Court’s decision on the Brady

claim regarding the Merrill benefits was not an unreasonable

application of clearly established law under § 2254(d)(1).

The court identified the correct governing legal principles in

Brady and Agurs. See Bracy, 703 P.2d at 472. The Arizona

Supreme Court reviewed the trial evidence and determined

that Merrill’s testimony was “not pivotal.” 15 Id. at 473.

Rather, it determined that Marilyn’s testimony was crucial.

Id. The Arizona Supreme Court noted that her testimony

was “particularly strong,” and it found that evidence other

than Merrill’s testimony “showed defendant’s presence in

Phoenix in early and late December, his connection to

Robert Cruz, and his participation in Cruz’s conspiracy to

kill Pat Redmond.” Id. The court also determined that the

Merrill benefits would not have affected the jury’s view of

Merrill’s credibility because the “defense possessed and

used a wealth of impeaching evidence against” him. Id. The

court ultimately concluded that Hooper failed to meet

Agurs’s materiality standard, stating that “we do not believe

that three additional pieces of impeaching information

established federal law on this issue in June 1985, our error could inure

only to Hooper’s benefit; as without such clearly established federal law,

the Arizona Supreme Court could not have unreasonably applied it, and

Hooper would automatically lose on this issue under AEDPA. See

Brewer, 378 F.3d at 954 (affirming the denial of a habeas petition under

AEDPA for lack of clearly established Supreme Court precedent).

15

During his closing, the prosecutor mentioned Merrill’s testimony

in reviewing all of the evidence, but he did not highlight it. This supports

that Merrill’s testimony was not crucial. See Barker v. Fleming,

423 F.3d 1085, 1100 (9th Cir. 2005) (“A useful measurement of the

importance of [a witness] and the materiality of the withheld

impeachment evidence is the lack of emphasis the prosecutor placed on

his testimony.”).

HOOPER V. SHINN 41

regarding Arnold Merrill might have affected the jury’s

belief in Mrs. Redmond and the other evidence.” Id.

The Arizona Supreme Court properly found that

Marilyn’s testimony was key. Marilyn was an eyewitness to

the crimes and was certain in her trial identifications of

Hooper and Bracy. She had also identified both in pretrial

lineups. As the court noted: “This evidence was particularly

strong because Mrs. Redmond had ample opportunity to

view all three men in her home.” Id. The court also properly

found that Merrill’s testimony was “merely corroborative

and not pivotal.” Id. As the court found, the State’s case

was supported by evidence well beyond Merrill’s testimony.

In addition to Marilyn’s testimony, the testimonies of Louie,

Campagnoni, Bauer, and Tompkins, along with the State’s

other evidence discussed above, all supported Hooper’s

guilt.

We find reasonable the Arizona Supreme Court’s

determination that the Merrill benefits would not have

affected the jury’s view of Merrill’s credibility. Merrill was

vigorously impeached. The jury knew that Merrill was a

known liar, self-interested criminal, and drug dealer and

user. The jury also knew that he had lied to the police and

had strong motives to lie, including to avoid a potential death

sentence.

Given the overwhelming evidence of Hooper’s guilt

presented at trial, and the improbability that the Merrill

benefits would have affected the jury’s view of Merrill, the

Arizona Supreme Court reasonably concluded that Hooper

failed to show that the Merrill benefits “might have affected

the outcome of the trial.” Agurs, 427 U.S. at 104. Thus, the

Arizona Supreme Court did not unreasonably apply clearly

established law, and we are barred from reviewing Hooper’s

claim based on the Merrill benefits under § 2254(d)(1).

42 HOOPER V. SHINN

Alternatively, Hooper argues that we can review his

claim on the Merrill benefits under § 2254(d)(2) because the

Arizona Supreme Court’s finding that the Merrill benefits

were cumulative impeachment evidence was an

unreasonable factual determination. 16 A finding that

evidence is cumulative is a factual determination subject to

§ 2254(d)(2). See Vega, 757 F.3d at 974 (“We further

conclude that the state court’s findings that Father Dan’s

testimony would have been cumulative and would have had

no effect on the verdict is an unreasonable determination of

the facts in light of the evidence presented in the state court

proceedings.”).

The Arizona Supreme Court’s determination that the

Merrill benefits were cumulative impeachment evidence

was not unreasonable. As discussed above, the defense

severely impeached Merrill. The evidence portrayed him as

a serial liar with strong incentives to fabricate his testimony

against Hooper and Bracy to avoid a potential death sentence

for his own involvement in the Redmond crimes and to

continue to receive favorable treatment from the State. The

undisclosed Merrill benefits would have shown that Merrill

received monetary benefits from the State and Ryan, making

it more likely that he was biased and motivated to lie. But

considering the impeachment evidence that was presented, it

was already firmly established that Merrill was biased and

motivated to lie. Thus, the Arizona Supreme Court’s

determination was reasonable.

16

Although Hooper failed to raise this argument in the district court,

we address it because the State responds to the argument and does not

assert waiver. See United States v. Doe, 53 F.3d 1081, 1082–83 (9th Cir.

1995) (reviewing the merits of a claim when the government failed to

assert waiver).

HOOPER V. SHINN 43

Our conclusion is supported by Ninth Circuit cases in

which we determined that undisclosed impeachment

evidence was cumulative under similar circumstances. For

example, in Gentry v. Sinclair, 705 F.3d 884 (9th Cir. 2013),

the prosecution suppressed evidence that the state had

intervened with the parole board to secure a witness’s parole.

Id. at 902–03. We held that this impeachment evidence

against the witness was cumulative because the witness had

been substantially impeached at trial through evidence of his

“many past crimes, including his conviction for perjury,”

and “his extensive history of using false names.” Id. at 903;

see also id. at 904; see also Barker v. Fleming, 423 F.3d

1085, 1096–97 (9th Cir. 2005) (holding that suppressed

convictions were cumulative impeachment evidence in light

of other evidence showing that the witness had a “penchant

for lying,” had been in and out of jail several times, and had

made a deal with the state on three other crimes).

In sum, AEDPA bars our review of Hooper’s Brady

claim as to the undisclosed Merrill benefits. But as

discussed below, even if we were to review Hooper’s Brady

claim on the Merrill benefits de novo, it would fail because

there is no reasonable probability that the trial outcome

would have been different had the evidence been disclosed.

2. AEDPA Analysis Regarding Police Reports

Hooper argues that we may review the Arizona Supreme

Court’s decision on the delayed disclosure of the police

reports related to the Bradfords and Ward because the

Arizona Supreme Court unreasonably applied clearly

established law under § 2254(d)(1). Hooper cites Brady and

Giglio v. United States, 405 U.S. 150 (1972), as the

applicable clearly established law. But those cases did not

clearly establish that a delayed disclosure is a Brady

44 HOOPER V. SHINN

violation where the defense had the opportunity to use the

evidence at trial. Nor has any Supreme Court case so held.

Because there was no clearly established law governing

Brady claims based on such delayed disclosures, the Arizona

Supreme Court’s decision “cannot be contrary to or an

unreasonable application of clearly established federal law.”

Brewer, 378 F.3d at 955. AEDPA therefore prevents us

from reviewing the Arizona Supreme Court’s decision on the

police reports.

3. AEDPA Analysis Regarding Photos

Like the police reports, the prosecution disclosed the

photos to Hooper during trial, and he used them at trial.

Thus, Hooper’s argument that the Arizona Supreme Court’s

decision on the photos was an unreasonable application of

clearly established law fails for the same reason his

argument on the police reports fails—there was no clearly

established law holding that a delayed disclosure is a Brady

violation where the defense had the opportunity to use the

evidence at trial.

Hooper also asserts, however, that we may review the

Arizona Supreme Court’s decision on the photos because its

decision was based on the unreasonable factual

determination that no photos had been admitted at trial. 17 In

analyzing the suppression of the photos, the Arizona

Supreme Court focused on the specific incident during trial

when defense counsel objected to Detective Quaife’s

testimony about the photos on redirect. See Bracy, 703 P.2d

17

Hooper did not raise this argument in the district court. Even so,

we consider it because the State fails to assert waiver. See Doe, 53 F.3d

at 1082–83.

HOOPER V. SHINN 45

at 472. This incident occurred before the photos had been

admitted.

Because we are unable to determine from the record the

specific argument that was made to the Arizona Supreme

Court with respect to the photos, it is unclear whether the

court’s reasoning was based on an unreasonable factual

determination. We therefore assume, without deciding, that

the Arizona Supreme Court’s decision on the photos was

based on an unreasonable factual determination. This

assumption does not change the outcome on the Brady

claims because, as discussed below, Hooper’s claims fail

even on de novo review.

4. De Novo Review of Brady Claims

Hooper argues that we may review all of his Brady

claims de novo, and that he is entitled to relief under de novo

review. We disagree because we have concluded above that

AEDPA bars our review of the police reports and the Merrill

benefits. But as we next discuss, even assuming we could

review all of his Brady claims de novo, they would fail.

Hooper satisfies two of the three Brady elements—the

evidence was favorable and (at least partially) suppressed.

See 373 U.S. at 87. Thus, his Brady claims turn on the

prejudicial effect or materiality of the photos, police reports,

and Merrill benefits. 18

“[E]vidence is material only if there is a reasonable

probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been

18

“[F]or Brady purposes, [‘prejudicial’ and ‘material’] have come

to have the same meaning.” Benn v. Lambert, 283 F.3d 1040, 1053 n.9

(9th Cir. 2002).

46 HOOPER V. SHINN

different. A ‘reasonable probability’ is a probability

sufficient to undermine confidence in the outcome.” Bagley,

473 U.S. at 682. We “must examine the trial record, evaluate

the withheld evidence in the context of the entire record, and

determine in light of that examination whether there is a

reasonable probability that, had the evidence been disclosed,

the result of the proceeding would have been different.”

Turner v. United States, 137 S. Ct. 1885, 1893 (2017)

(quotation marks, alterations, and citations omitted). A

Brady violation occurs when the undisclosed favorable

evidence “could reasonably be taken to put the whole case

in such a different light as to undermine confidence in the

verdict.” Kyles v. Whitley, 514 U.S. 419, 435 (1995).

“[M]ateriality of the withheld evidence [must] be

analyzed cumulatively . . . .” Barker, 423 F.3d at 1094. We

first examine the “force and nature of the withheld evidence

item by item,” and then “we consider the cumulative effect

of the suppressed evidence.” Id. at 1099. “Gauging the

collective impact of the withheld evidence requires us to step

back and consider the strength of the prosecution’s case

. . . .” Id.

The prosecution provided Hooper with the photos and

police reports during its case-in-chief, about three weeks

before Hooper presented his defense. Hooper used the

evidence to show that the Bradfords and Ward should have

been treated as suspects in the Redmond crimes and that the

officers unreasonably discounted them as suspects. Hooper

claims that earlier disclosure of the photos would have

allowed him to (1) show the jury the similarities between the

brown jacket worn by Michael Bradford to the one worn by

the intruder as described by Marilyn and (2) emphasize the

similarities between Hooper and the Bradfords and Ward to

show that Marilyn had mistakenly identified Hooper. But

HOOPER V. SHINN 47

Hooper had the opportunity to use the photos for these

purposes. Hooper also asserts that earlier disclosure of the

photos and reports would have changed his defense theory

and opening statement, but he offers no specifics on how his

theory or opening statement would have changed. 19

Thus, Hooper either used the photos and reports or had a

meaningful opportunity to do so. And he fails to show how

earlier disclosure would have made this evidence more

useful to his defense. We discern no prejudice from the

delayed disclosure of the photos and reports. See United

States v. Gordon, 844 F.2d 1397, 1403 (9th Cir. 1988)

(holding no Brady violation because “defendants had

substantial opportunity to use the documents and to cure any

prejudice caused by the delayed disclosure”).

Turning to the Merrill benefits, Hooper could have used

this evidence to impeach Merrill. But the defense presented

overwhelming evidence discrediting Merrill and showing he

had personal motives to lie. The jury knew that Merrill was

a serial liar, a criminal, and had received significant benefits

from the State for his cooperation, including a deal that

ensured he would not be sentenced to death for the Redmond

murders and an out-of-jail visit so he could have sex with his

wife. Given the wealth of impeachment evidence that was

presented, the nondisclosure does not undermine confidence

in the verdict. At best, it is exceedingly unlikely that

additional evidence showing that Merrill and his wife

received money and other benefits from Ryan and the State

19

And, of course, as noted above, Marilyn testified that the men in

the photos were not the men who invaded her home, murdered her

husband and mother, and tried to murder her.

48 HOOPER V. SHINN

equaling several thousand dollars would have changed the

jury’s view of Merrill’s credibility.

To the extent the Merrill benefits might have suggested

that the State’s investigation was tainted because Ryan

engaged in improper conduct, this theory was presented to

the jury and supported by other, more compelling evidence.

The jury knew that Ryan had taken Merrill out of jail to have

sex with his wife, had stopped his tape-recorded interview

with Merrill more than twenty times for no apparent reason

other than to coach Merrill on what he should say, threatened

a witness with physical violence, directed a witness to lie to

the police and gave that witness money, and lied to a

probation officer to secure a reduced sentence for

Campagnoni. Thus, the jury had many reasons to question

the integrity of the State’s investigation based on Ryan’s

actions, and the Merrill benefits would have simply added

another reason to the already compelling evidence.

Having examined the withheld evidence individually, we

now consider its cumulative effect, which “requires us to

step back and consider the strength of the prosecution’s

case.” Barker, 423 F.3d at 1099.

Marilyn was the State’s key witness. Her in-court

identifications of Hooper and Bracy as the intruders were

certain and unwavering. She had years of work experience

in recognizing people by their physical features, and during

the encounter she had several opportunities to look at the

intruders’ faces. Her testimony was corroborated by

substantial evidence, other than Merrill’s testimony, which

showed that Hooper and Bracy were in Phoenix on New

Year’s Eve and involved in the Redmond crimes. This

evidence that Hooper and Bracy were both in Phoenix on

HOOPER V. SHINN 49

New Year’s Eve, and thus, that they had created fake alibis, 20

provided additional evidence of Hooper’s guilt. See United

States v. Dorsey, 677 F.3d 944, 950 (9th Cir. 2012) (“That

Dorsey tried to create a fake alibi was not merely ineffective,

but also stands high in the hierarchy of evidence tending to

show guilt.”).

It is at best unlikely that earlier disclosure of the photos

and reports, and disclosure of the Merrill benefits, would

have affected the jury’s view of the overwhelming evidence

supporting Hooper’s guilt. The photos and reports were

presented to the jury, and Hooper used them to challenge the

officers’ reasons for discounting the Bradfords and Ward as

suspects in the Redmond crimes and to argue that the men

should have been treated as suspects. Hooper fails to show

how the delayed disclosures had any effect on the evidence

supporting his guilt.

The Merrill benefits would have given the jury additional

reasons to disbelieve Merrill and to question the State’s

investigation. But Merrill was not a crucial witness.

Hooper’s guilt was supported by significant other evidence,

and further impeaching Merrill would not have affected

Marilyn’s key testimony or the testimonies of other

important witnesses. The defense presented extensive

evidence portraying Ryan as an unscrupulous investigator.

Hooper used the evidence to suggest that the State’s

investigation was tainted, including that Ryan had

improperly influenced Marilyn’s pretrial identifications of

Hooper and Bracy. The jury rejected that theory. It is at best

unlikely that additional evidence that Ryan and the State

gave benefits to Merrill and his wife would have affected the

20

The jury obviously did not believe the alibis.

50 HOOPER V. SHINN

jury’s view of Marilyn’s crucial testimony or the testimonies

of witnesses other than Merrill.

In sum, earlier disclosure of the photos and reports and

disclosure of the Merrill benefits would not have “put the

whole case in such a different light as to undermine

confidence in the verdict.” Kyles, 514 U.S. at 435. The State

had a strong case, even without Merrill’s testimony. The

jury knew about the photos and reports, Hooper used them

in his defense, and the jury rejected his arguments. The jury

knew that Merrill was a self-interested liar, and that Ryan

was an unscrupulous investigator. Thus, “[t]he difference

between the story . . . that the jury knew and that which

would have been presented with the withheld evidence is not

significant.” Barker, 423 F.3d at 1101. We are therefore

confident in the verdict and conclude that, even assuming

AEDPA does not bar our review of Hooper’s Brady claims,

the delay in producing the photos and police reports, and the

failure to disclose the Merrill benefits, were not material.

B. Motion for Leave to Amend—Eighth and Fourteenth

Amendment Claims

Hooper requested leave to amend his petition to include

a claim that his death sentence violates the Eighth and

Fourteenth Amendments because the sentence was based on

his invalid Illinois convictions. The district court denied his

request as futile. The district court reviewed the state post-

conviction court’s 2005 decision and found that its rejection

of Hooper’s claim was neither contrary to nor an

unreasonable application of clearly established law under

AEDPA. The post-conviction court rejected the claim

because, even assuming the Illinois convictions were

invalid, Hooper failed to show he would have probably

received a sentence less than death because there were still

two valid aggravating factors and no mitigating factors. The

HOOPER V. SHINN 51

district court determined that the post-conviction court had

properly reweighed the aggravating and mitigating factors or

conducted a harmless error analysis in accordance with

Supreme Court precedent. The district court concluded that

any amendment would be futile because Hooper failed to

overcome AEDPA deference as to his claim.

“The court should freely give leave [to amend] when

justice so requires.” Fed. R. Civ. P. 15(a)(2); see Bonin v.

Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (applying Rule

15(a) in a habeas case). “Futility of amendment can, by

itself, justify the denial of a motion for leave to amend.”

Bonin, 59 F.3d at 845. Amendment is futile if the claim

sought to be added is not viable on the merits. See Murray,

745 F.3d at 1015.

We agree with the district court that amendment would

be futile. We first consider Hooper’s claim that his Eighth

Amendment rights were violated because his death sentence

was based on his invalid Illinois convictions. We then

discuss Hooper’s Fourteenth Amendment due process

claim. 21

1. Eighth Amendment Claim

Under AEDPA, we review the post-conviction court’s

decision rejecting Hooper’s Eighth Amendment claim. See

id. at 1006 (looking through the Arizona Supreme Court’s

21

Although the district court failed to specifically address Hooper’s

Fourteenth Amendment claim, we exercise our discretion and consider

the claim because it is a purely legal question that can be decided on the

record developed below. See Quinn v. Robinson, 783 F.2d 776, 814 (9th

Cir. 1986) (“We have discretion to decide whether to address an issue

that the district court did not reach if the question is a purely legal one

and the record has been fully developed prior to appeal . . . .”).

52 HOOPER V. SHINN

decision to the last reasoned state-court decision). In doing

so, we apply the clearly established law that, when a death

sentence is based in part on an invalid aggravating

circumstance, an appellate court can uphold the sentence if

it either reweighs the aggravating and mitigating

circumstances or reviews the sentence for harmless error.

Clemons v. Mississippi, 494 U.S. 738, 741, 751–54 (1990).

Under Arizona’s death penalty statute, the court “shall

impose a sentence of death if the court finds one or more of

the aggravating circumstances enumerated in [the statute]

and that there are no mitigating circumstances sufficiently

substantial to call for leniency.” A.R.S. § 13-703(E).

“[U]nder A.R.S. § 13-703(E), the trial court must impose a

sentence of death if it finds the existence of one statutory

aggravating factor and does not find the existence of any

mitigating factor . . . . A death sentence is thus required

regardless of the trial court’s belief that a life sentence is

appropriate.” State v. Beaty, 762 P.2d 519, 533–34 (Ariz.

1988); see also State v. Jordan, 672 P.2d 169, 173 (Ariz.

1983) (en banc) (“Where one or more statutory aggravating

circumstance is found, and no mitigation exists, the statute

requires the death penalty.” (quoting State v. Gretzler,

659 P.2d 1, 13 (Ariz. 1983) (en banc))). This provision of

Arizona’s death penalty statute has been upheld as

constitutional by the Supreme Court. See Walton v. Arizona,

497 U.S. 639, 651–52 (1990) (plurality opinion) (evaluating

Arizona’s death penalty statute and reaffirming that if a

sentencer was not precluded from considering all relevant

mitigation, a “statute requiring the imposition of the death

penalty if aggravating circumstances were found to exist but

no mitigating circumstances were present” is constitutional),

overruled on other grounds by Ring v. Arizona, 536 U.S. 584

(2002).

HOOPER V. SHINN 53

Hooper argues that the state court’s decision was

contrary to Supreme Court precedent because it

automatically affirmed his death sentence. We disagree.

The state court first determined that, even if Hooper’s

Illinois convictions were invalid, two aggravating

circumstances remained—he committed the offense in

expectation of receiving something of pecuniary value under

A.R.S. § 13-703(F)(5) and in an especially heinous, cruel, or

depraved manner under A.R.S. § 13-703(F)(6). The court

then found that there were no mitigating circumstances.

Because there were two aggravators and no mitigators, the

court determined that the sentencer would have been

required to impose a death sentence under Arizona law, and

thus Hooper failed to show that the invalidity of his Illinois

convictions would have changed his sentence.

The state court conducted a harmless error analysis in

accordance with Supreme Court precedent. See Clemons,

494 U.S. at 741, 751–54. It properly determined that any

error in including Hooper’s invalid convictions was

harmless because Arizona law requires a death sentence if

there is at least one aggravating circumstance and no

mitigating circumstances. See Jordan, 672 P.2d at 173.

Thus, Hooper fails to show that the state court’s decision was

contrary to clearly established law. 22

22

Hooper makes no claim that the state post-conviction court failed

to apply the “beyond a reasonable doubt” harmless error standard. See

Clemons, 494 U.S. at 753. Even if he had, he would have had to

overcome our rule that, “in AEDPA cases, we apply a presumption that

state courts know and follow the law and accordingly give state-court

decisions the benefit of the doubt.” Poyson v. Ryan, 879 F.3d 875, 889

(9th Cir. 2018) (quotation marks and citations omitted). More

importantly, as discussed below, even if Hooper could overcome

AEDPA, his claim would fail because he cannot show actual prejudice.

54 HOOPER V. SHINN

Hooper also argues that the post-conviction court’s

decision was based on an unreasonable factual determination

that there were no mitigating circumstances. We reject this

argument because the court’s factual determination was

reasonable. During the aggravation and mitigation hearing,

Hooper presented no evidence. During sentencing, the court

noted that “Hooper neither presented any evidence, nor had

a statement to make concerning mitigating factors or any

other fac[e]t of his presentation in court.” The Arizona

Supreme Court agreed that Hooper presented no mitigating

circumstances. Hooper, 703 P.2d at 495 (“The trial court

also considered all possible mitigating circumstances and

found none to exist. We agree.”). And Hooper identifies no

mitigating circumstances that the sentencing court or the

Arizona Supreme Court found. The state post-conviction

court’s factual determination was not unreasonable (and

indeed was compelled).

Moreover, even if Hooper could show that the state

court’s decision was contrary to clearly established law

because it automatically affirmed his sentence, his claim

would be unavailing because he fails to show actual

prejudice.

“[Federal] habeas petitioners are not entitled to habeas

relief based on trial error unless they can establish that it

resulted in actual prejudice.” Davis v. Ayala, 576 U.S. 257,

267 (2015) (quotation marks omitted) (quoting Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993)). “Under this test,

relief is proper only if the federal court has grave doubt about

whether a trial error of federal law had substantial and

injurious effect or influence in determining the jury’s

verdict.” Id. at 267–68 (quotation marks omitted) (quoting

O’Neal v. McAninch, 513 U.S. 432, 436 (1995)); see also

Beardslee v. Brown, 393 F.3d 1032, 1041–44 (9th Cir. 2004)

HOOPER V. SHINN 55

(applying Brecht’s harmless error test to an Eighth

Amendment error based on the improper consideration of

invalid aggravating factors).

Two valid aggravating circumstances remain after

excluding the two that were based on the invalid Illinois

convictions. 23 Hooper makes no claim that the invalid

convictions in any way tainted the two remaining

aggravators, nor could he. Under Arizona law, as long as

Hooper had at least one valid aggravator, he was eligible for

the death penalty. See A.R.S. § 13-703(E). Because the

state court found no mitigators, and we must defer to that

finding under AEDPA, Arizona law requires the imposition

of a death sentence. See Beaty, 762 P.2d at 533–34. Thus,

Hooper’s claim would fail because he suffered no prejudice

from the introduction of the invalid convictions.

Because Hooper’s Eighth Amendment claim is not

viable, the district court properly denied him leave to amend

his petition based on futility.

2. Fourteenth Amendment Claim

Hooper primarily argues that, under Brown v. Sanders,

546 U.S. 212 (2006), the introduction of the invalid Illinois

convictions during sentencing violated his due process rights

under the Fourteenth Amendment, mandating the reversal of

his death sentence. Thus, according to Hooper, the Arizona

Supreme Court’s summary dismissal of his due process

claim was contrary to or an unreasonable application of

23

Under A.R.S. § 13-703(F)(5), that Hooper “committed the

offense[s] as consideration for the receipt or in expectation of the receipt

of anything of pecuniary value,” Hooper, 703 P.2d at 494, and under

A.R.S. § 13-703(F)(6), that Hooper “committed the offense[s] in an

especially heinous, cruel, or depraved manner,” id. at 495.

56 HOOPER V. SHINN

Sanders. Hooper’s claim is not viable, but we first address

the parties’ dispute over whether Sanders was clearly

established for AEDPA purposes.

Sanders was decided after the post-conviction court’s

2005 decision but before the Arizona Supreme Court’s

summary dismissal. Therefore, whether Sanders was clearly

established depends on whether the Arizona Supreme

Court’s summary denial was the last state-court adjudication

on the merits. See Greene, 565 U.S. at 38–40 (holding that

clearly established law under AEDPA includes only

Supreme Court decisions announced after the last state-court

adjudication on the merits).

We need not decide whether Sanders was clearly

established because, even if it were, Hooper’s due process

claim is not viable. 24

Hooper argues that Sanders established a categorical rule

that irrelevant evidence introduced at sentencing is a due

24

We will assume for our discussion that Hooper exhausted his due

process claim and that it was adjudicated on the merits by the state court.

We note, however, that Hooper likely procedurally defaulted his due

process claim because he did not raise it in his petition for review to the

Arizona Supreme Court. See Ariz. R. Crim. P. 32.2(a)(3) (precluding

relief on the ground that a sentence was imposed in violation of the

Constitution when that ground has been “waived at trial or on appeal, or

in any previous post-conviction proceeding”); Murray, 745 F.3d at 1016

(“[T]he Supreme Court has recognized Arizona Rule of Criminal

Procedure 32.2(a)(3) as an independent and adequate state ground that

bars federal habeas review of constitutional claims.”). Hooper

supplemented his petition and provided a citation to Sanders, but he did

not allege a due process violation under Sanders. This was likely

insufficient to exhaust his due process claim. See Powell v. Lambert,

357 F.3d 871, 874 (9th Cir. 2004) (“A petitioner has exhausted his

federal claims when he has fully and fairly presented them to the state

courts.”). But the State has not asserted procedural default.

HOOPER V. SHINN 57

process violation that mandates reversal of a sentence, and

therefore, the state court’s failure to reverse his sentence was

contrary to or an unreasonable application of Sanders. We

disagree because Sanders did not establish any such rule.

Hooper’s argument is based on the following statement

in Sanders: “If the presence of the invalid sentencing factor

allowed the sentencer to consider evidence that would not

otherwise have been before it, due process would mandate

reversal without regard to the rule we apply here.” 546 U.S.

at 220–21. First, this statement is not the holding of Sanders

but was made in response to the dissent’s criticism of

Sanders’s holding. Id.

Second, the Supreme Court held in Romano v.

Oklahoma, 512 U.S. 1 (1994), that, in capital sentencing

proceedings, the introduction of irrelevant and prejudicial

evidence violates the Due Process Clause of the Fourteenth

Amendment when admission of the evidence “so infected

the sentencing proceeding with unfairness as to render the

jury’s imposition of the death penalty a denial of due

process.” Id. at 12. Nothing in Sanders suggests that the

Court intended to overrule Romano’s test with a categorical

rule that irrelevant evidence introduced at sentencing is a due

process violation that mandates reversal of a sentence.

Finally, the Court confirmed in Kansas v. Carr, 577 U.S.

108 (2016), that Romano’s test continues to apply to alleged

due process violations based on improperly admitted

evidence at capital-sentencing proceedings: “The test

prescribed by Romano for a constitutional violation

attributable to evidence improperly admitted at a capital-

sentencing proceeding is whether the evidence ‘so infected

the sentencing proceeding with unfairness as to render the

jury’s imposition of the death penalty a denial of due

process.’” Id. at 123–24 (quoting Romano, 512 U.S. at 12).

58 HOOPER V. SHINN

In addition, Carr appears to reject the categorical rule urged

by Hooper: “The mere admission of evidence that might not

otherwise have been admitted . . . does not demand the

automatic vacatur of a death sentence.” Id. at 124.

Thus, even if Sanders was clearly established, it was not

the applicable clearly established law governing Hooper’s

due process claim. A state court’s failure to apply

inapplicable Supreme Court precedent cannot be contrary to

or an unreasonable application of clearly established law,

and therefore Hooper fails to overcome AEDPA deference

as to his due process claim. And Hooper presents no

argument that the state court’s decision was contrary to or an

unreasonable application of Romano. For these reasons, it

would be futile to allow Hooper to amend his petition to

include his due process claim. 25

C. Ineffective Assistance of Sentencing Counsel Claim

Hooper’s federal habeas petition claims that his

sentencing counsel, Woods, rendered ineffective assistance

by failing to investigate and present any mitigation evidence.

Hooper did not raise this claim in his first state post-

conviction petition, but he raised it in his second petition. In

denying his second petition, the post-conviction court found

25

We also reject Hooper’s reliance on Eighth Amendment law to

support his due process claim based on the erroneous admission of

evidence. See Carr, 577 U.S. at 123 (“Whatever the merits of

defendants’ procedural objections, we will not shoehorn them into the

Eighth Amendment’s prohibition of ‘cruel and unusual punishments.’

. . . [I]t is not the role of the Eighth Amendment to establish a special

‘federal code of evidence’ governing ‘the admissibility of evidence at

capital sentencing proceedings.’ Rather, it is the Due Process Clause that

wards off the introduction of ‘unduly prejudicial’ evidence that would

‘render the trial fundamentally unfair.’” (citations and brackets

omitted)).

HOOPER V. SHINN 59

that the claim was procedurally barred. The district court

also found that the claim was procedurally defaulted, and

that Hooper failed to show cause to excuse the procedural

default.

Hooper argues that the procedural default is excused

under Martinez because his post-conviction counsel,

Seplow, provided ineffective assistance by failing to raise

the claim in his first state post-conviction petition. He also

argues that the district court abused its discretion in denying

his requests for discovery and an evidentiary hearing.

1. Martinez Analysis

“A prisoner may obtain federal review of a defaulted

claim by showing cause for the default and prejudice from a

violation of federal law.” Martinez, 566 U.S. at 10. 26 Under

Martinez, “when a State requires a prisoner to raise an

ineffective-assistance-of-trial-counsel claim in a collateral

proceeding,” id. at 14, “a prisoner may establish ‘cause’ to

excuse the procedural default of a claim that the prisoner had

received ineffective assistance of counsel . . . during

sentencing proceedings by demonstrating that counsel in the

initial-review collateral proceeding was ineffective or there

was no counsel in such a proceeding,” Clabourne v. Ryan,

745 F.3d 362, 375 (9th Cir. 2014), overruled on other

grounds by McKinney v. Ryan, 813 F.3d 798, 819 (9th Cir.

2015) (en banc). 27 A prisoner establishes prejudice by

26

Procedural default may also be excused when a prisoner

“demonstrate[s] that failure to consider the claims will result in a

fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S.

722, 750 (1991). This exception is not at issue here.

27

Because the parties do not dispute that Martinez applies to

Hooper’s ineffective assistance of counsel claim, we assume without

60 HOOPER V. SHINN

demonstrating “that the underlying ineffective-assistance-

of-trial-counsel claim is a substantial one, which is to say

that the prisoner must demonstrate that the claim has some

merit.” Martinez, 566 U.S. at 14.

The only issue before us is whether Hooper has

established “cause” to excuse the procedural default. 28

To establish “cause,” Hooper must show that his post-

conviction counsel was ineffective under Strickland v.

Washington, 466 U.S. 668 (1984). That is, Hooper must

show that post-conviction counsel’s performance was

deficient and that he was prejudiced by this deficient

performance, meaning that “there was a reasonable

probability that, absent the deficient performance, the result

of the post-conviction proceedings would have been

different.” Clabourne, 745 F.3d at 377. “[F]or us to find a

reasonable probability that [post-conviction] counsel

prejudiced a petitioner by failing to raise a trial-level

[ineffective assistance of counsel (IAC)] claim, we must also

find a reasonable probability that the trial-level IAC claim

would have succeeded had it been raised.” Runningeagle,

825 F.3d at 982. Stated differently, “[i]f the ineffective

assistance of trial counsel claim lacks merit, then the state

deciding that Arizona law at the time of Hooper’s appeal required him to

raise the claim in an initial-review collateral proceeding. But see

Runningeagle, 825 F.3d at 981 n.12 (expressing no opinion on whether

“Arizona law effectively required petitioners to bring [ineffective

assistance of counsel] claims in initial-review collateral proceedings”

before 1989).

28

The district found that the motions panel’s remand order

determined that Hooper had established prejudice. The State does not

challenge this finding. We therefore assume, without deciding, that

Hooper has satisfied the prejudice prong of the “cause and prejudice”

test.

HOOPER V. SHINN 61

habeas counsel would not have been deficient for failing to

raise it.” Atwood v. Ryan, 870 F.3d 1033, 1060 (9th Cir.

2017). 29

Thus, we first consider whether Woods was ineffective

under Strickland. Even assuming Woods performed

deficiently by failing to investigate and present mitigation

evidence (a question we need not and do not reach), 30 we

29

Hooper argues that to establish “cause,” he need show only that

post-conviction counsel rendered deficient performance, citing Detrich

v. Ryan, 740 F.3d 1237 (9th Cir. 2013) (en banc). See id. at 1245–46

(plurality opinion) (stating that to establish “cause,” “a prisoner need

show only that his PCR [post-conviction relief] counsel performed in a

deficient manner” and “need not show actual prejudice resulting from

his PCR counsel’s deficient performance, over and above his required

showing that the trial-counsel IAC claim be ‘substantial’ under the first

Martinez requirement”). We reject this argument because we have

consistently distinguished Detrich and reaffirmed the Clabourne

framework, which requires a petitioner who was represented by counsel

in the initial-review collateral proceeding to establish “cause” by

showing Strickland prejudice. See Rodney v. Filson, 916 F.3d 1254,

1260 & n.2 (9th Cir. 2019) (confirming that a petitioner represented by

post-conviction counsel must show Strickland prejudice and the Detrich

standard in the plurality opinion “applies [only] in cases in which the

petitioner was not represented by counsel in the initial-review collateral

proceeding”); see also Djerf v. Ryan, 931 F.3d 870, 880 (9th Cir. 2019)

(applying Clabourne and requiring the petitioner to show Strickland

prejudice to establish “cause”).

30

We do note some of the explanations Woods provided for his

performance in 1983, when questioned during a 1992 deposition taken

in connection with Bracy’s post-conviction proceeding:

It was clear to me there were no mitigating factors, and

almost every aggravating factor listed in the statute

was present.

62 HOOPER V. SHINN

find there is no “reasonable probability that, but for

[Woods’s alleged] unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S.

at 694. “In assessing prejudice, we reweigh the evidence in

aggravation against the totality of available mitigating

evidence.” Wiggins v. Smith, 539 U.S. 510, 534 (2003).

“The likelihood of a different result must be substantial, not

just conceivable.” Apelt v. Ryan, 878 F.3d 800, 832 (9th Cir.

2017) (quoting Richter, 562 U.S. at 112).

The mitigation evidence that Hooper now presents,

which he has had decades to collect, falls into two general

categories—evidence of his life history and evidence related

to his mental health. Hooper grew up in Chicago in a

segregated, impoverished neighborhood. He lived with his

mother, father, and four siblings. Both of his parents were

***

[M]y goal was to try to have him not get the death

sentence. And I believe my best chance would be to

try to construct an argument directed specifically at

that judge that maybe he might buy rather than put on

a completely ineffectual and unpersuasive mitigation

hearing just for the record, because it wouldn’t have

done any good. So that’s what I did.

***

I had a choice there. I could just try to protect the

record, or I could try to talk the judge out of the death

penalty. And I didn’t think I could do both. I could

aggravate the situation with the judge by coming up

with —There were no mitigating factors. That’s the

bottom line. There were none. I could try to make up

something or come up with some phony deal that he

would not buy, or I could lay it on the line on a

different level and see if I could persuade him.

HOOPER V. SHINN 63

employed. His mother worked in manufacturing for twenty

years and then worked at the post office for twenty-two

years. His father worked in the stockyards. Hooper’s

“family never had serious money problems.” His parents

provided the children with food and clothing, and the family

attended church every Sunday.

As a child, Hooper saw people being shot in the streets,

witnessed a person being beaten to death with a baseball bat,

and saw a man “stomped to death in the street.” He also saw

prostitutes and “stepped over drug addicts to get to school.”

Hooper’s sister stated that their parents “tried to shield” them

from the crime and drug use in their neighborhood.

Growing up, Hooper suffered physical injuries, was

beaten up by gangs, and had to fight to survive. At age

eleven, he was hit in the head by a ball while playing baseball

and knocked unconscious. At age twelve or thirteen, he was

knocked unconscious by blows from an ax handle during a

fight, and had his arm almost severed off by the ax blade.

Hooper was once beaten in the head with a baseball bat.

Hooper presents evidence that he was physically abused

by his father. His father whipped him and his siblings “over

their clothes and not on their bare skin” when they

misbehaved. His father whipped him with extension cords

at least two times a week. Hooper’s father drew a gun on

Hooper and his siblings at least two times, but Hooper’s

sister stated, “He was not going to shoot us.” There was no

physical abuse between Hooper’s parents, but they argued a

lot.

Hooper was never in a gang, but he hung out with older,

more violent juveniles. He first got into criminal trouble

when he was thirteen or fourteen years old for robbery and

vandalism. When his parents learned about his problems,

64 HOOPER V. SHINN

they “repeatedly sat him down and talked to him.” Hooper

was sent to various reformatories and juvenile detention

centers. He offers news articles supporting that incidents of

sexual assault and physical abuse occurred at two of the

institutions in which he had been confined. But Hooper does

not state if he was physically or sexually abused at those

institutions.

Hooper’s parents did not use drugs or abuse alcohol.

Hooper started drinking alcohol when he was seventeen, and

he reported that he consumed heavy amounts of alcohol “for

years” and stopped only when he was incarcerated in 1981.

Hooper has been institutionalized for most of his adult

life. While incarcerated as a young adult, he obtained his

GED and completed one year of college. In his twenties, he

spoke to youth about staying away from a life of crime.

Hooper has been a model prisoner and has not committed

any disciplinary infractions since his extradition to Arizona

in 2006. Hooper provides statements from several character

witnesses who described him as supportive, caring, and a

good person.

Turning to Hooper’s evidence related to his mental

health, he submits declarations from two mental health

professionals. In 2015, psychologist Dr. James Garbarino

declared that based on reports from Hooper’s siblings,

Hooper had been a sensitive child with a vulnerable

temperament. His upbringing in an “urban war zone”

resulted in his desensitization to violent acts. Hooper

experienced chronic trauma from the physical abuse he

suffered within his family and community and his exposure

to the traumatic environments in juvenile detention facilities.

He appeared to be emotionally disconnected from adverse

experiences and had difficulty regulating his emotions. Dr.

Garbarino noted that a family member stated that from an

HOOPER V. SHINN 65

early age Hooper had a “Jekyll/Hyde pattern,” as he had an

“‘explosive temper,’ and could shift from being ‘sweet’ to

expressing ‘rage.’” Dr. Garbarino concluded that Hooper’s

chronic trauma and “urban war zone” environment

contributed to his chronic antisocial and violent behavior.

Dr. Garbarino opined that Hooper was not beyond

rehabilitation based on positive reports from family, friends,

and prison staff.

Dr. Robert Heilbronner, a clinical neuropsychologist,

reviewed records and evaluated Hooper in 2011. He found

that Hooper demonstrated average IQ, average verbal

intellectual abilities, and borderline to low average

nonverbal performance abilities. Because he was unable to

administer a complete battery of neuropsychological tests,

Dr. Heilbronner was unable to explain the cause of the

discrepancy between the verbal intellectual abilities and

nonverbal performance abilities scores. Nevertheless, he

surmised that multiple head traumas and social-educational

deprivations as a child were likely contributors. He opined

that the discrepancy “more likely than not reflects an

abnormal pattern of intellectual functioning” and that “this

pattern of impairment was present in 1981.”

Later in 2015, Dr. Heilbronner completed his evaluation

of Hooper by administering the rest of the

neuropsychological tests. He was unable to determine with

any degree of neuropsychological certainty the causes of the

observed discrepancy. Dr. Heilbronner concluded that, had

Hooper been tested closer to the time of trial, it is more likely

66 HOOPER V. SHINN

than not that the results would have shown objective data of

brain impairment. 31

As for the aggravation evidence, the State established

two statutory aggravating circumstances: Hooper

(1) “committed the offense[s] as consideration for the

receipt, or in expectation of the receipt, of anything of

pecuniary value,” A.R.S. § 13-703(F)(5), and

(2) “committed the offense[s] in an especially heinous, cruel

or depraved manner,” A.R.S. § 13-703(F)(6). 32

The murder-for-hire aggravating circumstance carries

great weight. See State v. Harrod, 183 P.3d 519, 535 (Ariz.

2008) (en banc) (“[T]he pecuniary gain aggravating factor,

particularly in the case of a contract killing, is especially

strong. Accordingly, when a ‘hired hit’ has taken place, the

(F)(5) aggravator has substantial weight.” (citation

omitted)).

The Arizona Supreme Court found that these facts

established the existence of the “especially heinous, cruel or

depraved” aggravating circumstance: the victims were

herded at gunpoint, “forced to lie down on a bed, had their

31

In light of Dr. Heilbronner’s 2011 and 2015 evaluations, we deny

as moot Hooper’s 2010 motion requesting a confidential contact visit

between Dr. Heilbronner and Hooper to conduct a neuropsychological

examination.

32

Hooper argued below and appears to argue on appeal that our

prejudice analysis should exclude the two aggravating circumstances

based on the invalid Illinois convictions. We need not reach this issue

because, even assuming that we should exclude the two invalid

aggravating circumstances, Hooper fails to show that there is a

“reasonable probability that, but for [Woods’s alleged] unprofessional

errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694.

HOOPER V. SHINN 67

hands taped behind their backs, and were gagged with

socks”; “[e]xcept for the first victim, each of them had to

endure the ‘unimaginable terror’ of having their loved ones

shot to death within their hearing and then having to wait for

their own turn to come”; “Phelps did not die from the first

gunshot wound to her head, . . . she did not lose

consciousness as a result thereof, and . . . she most certainly

suffered pain from that wound”; the murderers inflicted

“gratuitous violence” or “needless mutilation” by slashing

Redmond’s throat after he had been shot twice through the

head; and “the murderers killed Mrs. Phelps, an elderly

houseguest of the Redmonds with no possible interest in

their business affairs.” Bracy, 703 P.2d at 481–82 (quoting

in part State v. McCall, 677 P.2d 920, 934 (Ariz. 1983) (en

banc)); see also Hooper, 703 P.2d at 495. The trial court

also observed that one of the murderers said “‘we don’t need

these two anymore[,’ which] shows the inhumane and

debase[d] motive possessed by [them].” Given these details

of the Redmond murders, the “especially heinous, cruel or

depraved” aggravating circumstance is also of substantial

weight.

In contrast, Hooper’s mitigation evidence is weak. The

evidence of his difficult upbringing is “by no means clearly

mitigating.” Cullen v. Pinholster, 563 U.S. 170, 201 (2011).

That Hooper engaged in violent crimes such as robbery

when he was thirteen, continued to engage in criminal

conduct despite having been sent to juvenile detention and

his parents’ attempts to intervene, and then continued a life

of crime throughout his adult life, could have caused a jury

to believe that he was beyond rehabilitation. See id. (“The

new evidence relating to Pinholster’s family—their more

serious substance abuse, mental illness, and criminal

problems—is also by no means clearly mitigating, as the jury

might have concluded that Pinholster was simply beyond

68 HOOPER V. SHINN

rehabilitation.” (citation omitted)). Additionally, that

Hooper was thirty-five years old when he committed the

Redmond murders further decreases the mitigating effect of

his childhood circumstances. See State v. Ellison, 140 P.3d

899, 927 (Ariz. 2006) (en banc) (“[Defendant’s] childhood

troubles deserve little value as a mitigator for the murders he

committed at age thirty-three.”).

Dr. Garbarino’s assessment is also not clearly mitigating.

Though he surmised that Hooper was not beyond

rehabilitation, he concluded that Hooper’s upbringing

“desensitized him to acting in a violent manner” and caused

him to develop a “war zone mentality.” This evidence could

have weighed against Hooper because it shows his

propensity for violence. See Apelt, 878 F.3d at 834

(“[P]resenting Apelt’s upbringing and activities in Germany

to explain how Apelt became a calculating killer arguably

could weigh in favor rather than against the death penalty.”).

The evidence of his alcohol use carries little or no weight

because there is no evidence that Hooper was influenced by

alcohol at the time of the Redmond murders. See Henry v.

Ryan, 720 F.3d 1073, 1090 (9th Cir. 2013) (“[S]tate courts

are free to consider the absence of a causal connection when

assessing the quality and strength of such evidence.”); cf.

A.R.S. § 13-703(G)(1) (recognizing as a statutory mitigating

circumstance: “The defendant’s capacity to appreciate the

wrongfulness of his conduct or to conform his conduct to the

requirements of law was significantly impaired”). Further,

Hooper’s heavy alcohol use might have weighed against

him. See Henry, 720 F.3d at 1090 n.11 (noting that a history

of alcoholism might be considered aggravating).

Hooper’s evidence of good character and prison

behavior is of minimal weight, especially given the strong

rebuttal evidence that the prosecutor could have highlighted

HOOPER V. SHINN 69

and introduced. See Harrod, 183 P.3d at 534–35

(commenting that mitigating evidence of good character

deserves less weight in a case involving a murder planned in

advance). Hooper had a long adult criminal history, which

started at age eighteen and progressed from disorderly

conduct to much more serious crimes of armed robbery and

attempted murder. In rebuttal, the prosecutor could have

presented the details of these crimes. The prosecutor could

have also emphasized Hooper’s damaging statements that he

would have killed Redmond and his family for “a couple

hundred dollars a person,” that he was “better off dead or in

the pen because if [he] got out again [he] would probably

just kill someone again,” and that he “like[s] to shoot people,

it doesn’t bother [him] a bit.” The supplemental PSR stated

that a Chicago police officer believed Hooper was a

“member of a prison gang/terrorist group called the Royal

Family for twelve or thirteen years.” Presumably, the State

could have presented details about this group and Hooper’s

connection to the group to further rebut his “good character”

and prison behavior evidence.

As for Dr. Heilbronner’s neuropsychological evaluation,

not only could it have opened the door for the prosecution to

retain an expert in rebuttal, see Pinholster, 563 U.S. at 201,

but also, Dr. Heilbronner’s conclusion is speculative. He

concluded that Hooper likely had some type of brain

impairment at the time of trial but provided no insight into

what that impairment could have been, how such an

impairment would have affected Hooper, or how it might

have been related to the crimes. This type of speculative

evidence is insufficient to establish prejudice. See Atwood,

870 F.3d at 1064 (noting that speculation that petitioner had

a brain dysfunction or disorder was not sufficient to establish

prejudice); Rhoades v. Henry, 638 F.3d 1027, 1050 (9th Cir.

2011) (“Speculation about potential brain dysfunctions or

70 HOOPER V. SHINN

disorders ‘is not sufficient to establish prejudice.’” (citation

omitted)).

Considering the two aggravating factors, both of which

carry significant weight, alongside Hooper’s insubstantial

mitigation evidence, there is no “reasonable probability that,

but for [sentencing] counsel’s [alleged] unprofessional

errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694. Because Hooper’s

trial-level ineffective assistance of counsel claim lacks merit,

Hooper’s post-conviction counsel, Seplow, was not deficient

for failing to raise it, and Hooper cannot show that Seplow

was ineffective under Strickland. Accordingly, Hooper fails

to establish “cause” under Martinez, and his claim is

procedurally barred. 33

2. Denial of Discovery and Evidentiary Hearing

In the district court, Hooper requested discovery and an

evidentiary hearing to support his argument that the

procedural default of his ineffective assistance of counsel

claim is excused under Martinez. He also asked to expand

the record to include all the materials attached to his

supplemental briefs addressing the Martinez issue. The

court granted Hooper’s request to expand the record. The

33

Though our prejudice analysis construes Hooper’s mitigation

evidence in his favor, we note that his mitigation evidence on the level

of violence in his childhood neighborhoods and the extent of the physical

abuse by his father is not consistent. A family member stated that their

neighborhoods were not “overly violent.” Family members also stated

that the whippings by Hooper’s father occurred “[n]ot so often,” and that

Hooper and his siblings “received no punishments” from their parents.

The evidence of his history of alcohol use is also ambiguous. Hooper’s

friend, who knew Hooper in the mid-1970s, stated that Hooper did not

have an alcohol problem. Hooper’s PSR also stated that Hooper

“reportedly denies the abuse of alcohol and drugs.”

HOOPER V. SHINN 71

expanded record included declarations and interviews of

potential mitigation witnesses, including the declarations of

his medical experts. After reviewing the record, including

the newly added materials, the district court determined that

discovery and an evidentiary hearing were unnecessary.

“We review the district court’s denial of discovery and

an evidentiary hearing for abuse of discretion.” Smith v.

Mahoney, 611 F.3d 978, 997 (9th Cir. 2010).

Hooper claims that discovery and an evidentiary hearing

would resolve the factual disputes related to whether Woods

performed deficiently. This argument is unavailing given

our decision that, even assuming Woods performed

deficiently, Hooper cannot show “cause” for the procedural

default. He also makes the conclusory assertion that

“[e]xpert and lay witnesses could show the full extent of the

available mitigation case, and explain its significance” at an

evidentiary hearing. Hooper, however, does not identify

who those witnesses would be, and he makes no claim that

their testimony would differ materially from the mitigation

evidence that is already in the record.

Hooper also takes issue with the district court’s denial of

his request to depose the “major actors,” including Woods

and Seplow, based on Hooper’s failure to “allege specific,

relevant facts that might be found in the requested

depositions.” But Hooper does not explain how that

determination was an abuse of discretion. And in his

briefing to us he fails to allege any specific material facts

that would be obtained from the requested depositions and

makes no claim that any deposition testimony would be

materially different from the mitigation evidence in the

record. Indeed, as pointed out by the district court, the

record already contains the deposition of Woods and a

declaration by Seplow.

72 HOOPER V. SHINN

Because Hooper fails to show what additional evidence

he could have obtained from discovery or an evidentiary

hearing to support that he was prejudiced by Woods’s

performance, the district court did not abuse its discretion in

denying his requests for discovery and an evidentiary

hearing. See Henry, 720 F.3d at 1087 (affirming the denial

of an evidentiary hearing when petitioner failed to “point to

any additional evidence that could be properly pursued at an

evidentiary hearing to” support his claim); see also

Runningeagle, 825 F.3d at 990 (holding that the district court

did not abuse its discretion in denying an evidentiary hearing

when “[t]he expanded record included the declarations of

witnesses who would testify at a live hearing, and

Runningeagle made no showing that their testimony would

differ materially from their declarations”).

D. Request to Expand the COA

Hooper seeks to expand the COA to include two

uncertified claims: (1) the trial court’s decision to shackle

him was unconstitutional because it was not based on an

individualized determination or justified by an essential state

interest, and (2) the unconstitutional shackling caused him to

involuntarily waive his right to be present at voir dire

because he was forced to choose between two constitutional

rights—the right to appear before the jury free of restraints

and the right to be present at jury selection.

Under AEDPA, a COA may issue “only if the applicant

has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). In

determining whether Hooper has met this standard, “[w]e

look to the District Court’s application of AEDPA to

[Hooper’s] constitutional claims and ask whether that

resolution was debatable amongst jurists of reason.” Miller-

El v. Cockrell, 537 U.S. 322, 336 (2003).

HOOPER V. SHINN 73

The Arizona Supreme Court considered and rejected

Hooper’s uncertified claims on direct appeal. Hooper,

703 P.2d at 487–88. The Arizona Supreme Court found that

the trial court did not abuse its discretion in ordering Hooper

shackled given that he had been convicted of three murders

in Illinois and was under three death sentences for those

murders. Id. at 487. It also found that the restraints were not

visible to the jury. Id. Because Hooper had been properly

restrained, the court determined that “he was not denied his

right to be present when he voluntarily chose to be absent

during voir dire.” Id. at 487–88.

The district court deferred to the Arizona Supreme

Court’s finding that the jury did not see Hooper’s shackles.

The district court then determined that the Arizona Supreme

Court’s ruling on the unconstitutional shackling claim was

not contrary to or an unreasonable application of clearly

established law. It also rejected, under AEDPA, Hooper’s

claim that the alleged unconstitutional shackling order

caused him to waive his right to be present at voir dire.

When the Arizona Supreme Court adjudicated Hooper’s

unconstitutional shackling claim, there was no clearly

established law on “the specific procedural steps a trial court

must take prior to [visible] shackling, about the amount and

type of evidence needed to justify restraints, and about what

forms of prejudice might warrant a new trial.” Deck v.

Missouri, 544 U.S. 622, 629 (2005); see Crittenden v. Ayers,

624 F.3d 943, 970–72 (9th Cir. 2010) (interpreting Deck as

confirming that there was no clearly established law

regarding any required procedures before shackling a

defendant). Because there was no clearly established law

that required a trial court to make an individualized

determination before imposing shackles, no reasonable jurist

could disagree with the district court’s conclusion that the

74 HOOPER V. SHINN

Arizona Supreme Court’s decision was not contrary to or an

unreasonable application of clearly established law. See

Brewer, 378 F.3d at 955.

The district court properly deferred to the Arizona

Supreme Court’s determination that the jury did not see the

shackles, as that factual conclusion was not unreasonable.

There is no indication in the state court record that any juror

saw shackles on Hooper. Indeed, Hooper made no allegation

in his brief to the Arizona Supreme Court that the shackles

were visible, and his briefs here fail to point to any part of

the record that shows a juror saw his shackles. 34 Given the

lack of any evidence that the jury saw Hooper’s shackles, no

reasonable jurist could disagree with the district court’s

decision to defer to the Arizona Supreme Court’s factual

finding that the shackles were not visible. See Dixon v.

Ryan, 932 F.3d 789, 810–11 (9th Cir. 2019) (holding that the

state court’s factual conclusion that restraints were not

visible was reasonable because there was no evidence to the

contrary).

Hooper’s second uncertified claim that he was forced to

choose between two constitutional rights depends on a

determination that his shackling was unconstitutional. But

that claim necessarily fails because we must defer to the

Arizona Supreme Court’s decision that his shackling was

proper. We therefore conclude that no reasonable jurist

34

Hooper provides a 1992 affidavit signed by Bracy to support his

claims. We cannot consider this affidavit because it was not part of the

record on direct appeal. See Pinholster, 563 U.S. at 181–82. Even if we

were to consider the affidavit, it does not claim that any juror saw

Hooper’s shackles. Further, even if the affidavit could be construed as

raising the possibility that his shackles may have been visible at times,

the mere possibility that a juror saw his shackles would not render the

Arizona Supreme Court’s factual determination unreasonable.

HOOPER V. SHINN 75

could debate the district court’s rejection of Hooper’s second

uncertified claim.

We deny Hooper’s request to expand the COA.

IV. Conclusion

We affirm the district court’s denial of the writ of habeas

corpus. Hooper’s Brady claims are either barred by AEDPA

or fail on the merits under de novo review. The district court

properly denied Hooper’s request for leave to amend his

petition to include claims that his death sentence violates the

Eighth and Fourteenth Amendments because any

amendment would be futile. We also affirm the district

court’s conclusion that Hooper’s ineffective assistance of

sentencing counsel claim is procedurally defaulted, and that

Hooper fails to show cause under Martinez to excuse the

default. Finally, we decline to expand the COA.

AFFIRMED.