Petition for Writ of Certiorari — Murray Hooper, Petitioner v. David Shinn, Director, Arizona Department of Corrections, Rehabilitation and Reentry
Supreme Court briefDec 10, 2021
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No. 21IN THE
Supreme Court of the United States
_____________
MURRAY HOOPER,
Petitioner,
v.
DAVID SHINN,
_____________
Respondent.
On Petition for Writ of Certiorari to the United
States Court of Appeals for the Ninth Circuit
_____________
PETITION APPENDIX
_____________
JON M. SANDS
FEDERAL PUBLIC DEFENDER
DALE A. BAICH
ASSISTANT FEDERAL PUBLIC
DEFENDER
DISTRICT OF ARIZONA
850 West Adams Street
Suite 201
Phoenix, AZ 85007
(602) 382-2816
THOMAS J. PHALEN
P.O. Box 25053
Phoenix, AZ 85002
(602) 340-0865
December 10, 2021
JEAN-CLAUDE ANDRÉ*
BRYAN CAVE LEIGHTON
PAISNER LLP
120 Broadway
Suite 300
Santa Monica, CA
90401
(310) 576-2148
jcandre@bclplaw.com
J. BENNETT CLARK
SAMUAL A. GARNER
BRYAN CAVE LEIGHTON
PAISNER LLP
One Metropolitan
Square
St. Louis, MO 63102
(314) 259-2000
* Counsel of Record
TABLE OF CONTENTS
APPENDIX A — Court of Appeals Opinion (Jan.
8, 2021) ...............................................................
Page
1a
APPENDIX B — Maricopa County Superior
Court Minute Order Denying Motion to Vacate
Judgment (Oct. 20, 1983) .................................. 42a
APPENDIX C — Arizona Supreme Court Opinion, State v. Bracy, 703 P.2d 464 (June 10,
1985) ................................................................... 47a
APPENDIX D — Arizona Supreme Court Opinion, State v. Hooper, 703 P.2d 464 (June 10,
1985) ................................................................... 66a
APPENDIX E — Arizona Supreme Court Mandate (Aug. 22, 1985) ........................................... 80a
APPENDIX F — District Court Memorandum of
Decision and Order (Oct. 10, 2008) ................... 81a
APPENDIX G — Court of Appeals Order Denying Petition for Panel Rehearing and Rehearing En Banc (July 15, 2021) .............................. 161a
594
985 FEDERAL REPORTER, 3d SERIES
[7] Even if Tobar could establish inducement, the evidence was sufficient to
show he had a predisposition to entice a
minor. Predisposition ‘‘focuses upon
whether the defendant was an ‘unwary
innocent’ or, instead, an ‘unwary criminal’
who readily availed himself of the opportunity to perpetrate the crime.’’ Myers, 575
F.3d at 805, quoting Mathews v. United
States, 485 U.S. 58, 63, 108 S.Ct. 883, 99
L.Ed.2d 54 (1988). ‘‘[W]hen a defendant
responds immediately and enthusiastically
to his first opportunity to commit a crime,
without any period of government prodding, his criminal disposition is readily apparent.’’ Id. at 807-08.
Discovering Kitty’s age, Tobar quickly
asked for nude photos and a meeting to
arrange sex. He responded immediately
and enthusiastically, without any government prodding. Tobar claims his text, ‘‘I
yes want woman,’’ expresses a preference
for an older woman, but the context refutes this. Tobar was texting other escorts—including a 28-year-old the same
evening—but pursued the minor. The district court properly refused to give entrapment instructions.
* * * * * * * *
The judgment is affirmed.
Murray HOOPER, PetitionerAppellant,
v.
David SHINN,* Warden, RespondentAppellee.
No. 08-99024
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted September 16,
2020 San Francisco, California
Filed January 8, 2021
Background: After affirmance, 145 Ariz.
538, 703 P.2d 482, of state prisoner’s murder convictions and death sentence, prisoner petitioned for federal habeas relief. The
United States District Court for the District of Arizona, Stephen M. McNamee, J.,
2008 WL 4542782, denied relief. Prisoner
appealed. The Court of Appeals remanded,
The District Court, McNamee Senior District Judge, 2018 WL 2426176, denied relief. Prisoner appealed.
Holdings: The Court of Appeals, Bennett,
Circuit Judge, held that:
(1) state court reasonably determined, under Supreme Court precedent in 1985
regarding Brady claims, that disclosure
of suppressed impeachment evidence
would not have affected the outcome;
(2) state court made reasonable factual
determination that withheld impeachment evidence was cumulative;
,
(3) state court reasonably determined that
delayed disclosure of police reports and
arrest photographs concerning putative
alternative perpetrators did not violate
Brady; and
(4) state court’s determination, that error
in imposing death sentence was harm-
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), David Shinn is substituted for
APPENDIX A
1a
his predecessor, Dora B. Schriro, as Warden.
HOOPER v. SHINN
Cite as 985 F.3d 594 (9th Cir. 2021)
less, even if prior murder convictions
were invalid, was not contrary to Supreme Court precedent.
Affirmed.
1. Habeas Corpus O842
The Court of Appeals reviews de novo
a district court’s denial of a state prisoner’s federal habeas petition. 28 U.S.C.A.
§ 2254(d)(1).
2. Habeas Corpus O452
A state-court decision is ‘‘contrary to’’
clearly established Supreme Court precedent, as basis for granting federal habeas
relief to a state prisoner, if the state court
arrives at a conclusion opposite to that
reached by the 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.
28
U.S.C.A.
§ 2254(d)(1).
See publication Words and Phrases
for other judicial constructions and
definitions.
595
5. Habeas Corpus O450.1, 452
Clearly established Supreme Court
precedent, for purposes of the Antiterrorism and Effective Death Penalty Act
(AEDPA), which allows federal habeas relief to be granted to a state prisoner if the
state court’s adjudication of the merits of
the prisoner’s federal claim is contrary to
or an unreasonable application of clearly
established Supreme Court precedent, includes only the Supreme Court’s decisions
as of the time of the relevant state-court
adjudication on the merits. 28 U.S.C.A.
§ 2254(d)(1).
6. Habeas Corpus O450.1
When a state court has applied clearly
established Supreme Court precedent to
reasonably determined facts in the process
of adjudicating on the merits a state prisoner’s federal claim, a federal habeas court
may not disturb the state court’s decision
unless its error lies beyond any possibility
for fairminded disagreement. 28 U.S.C.A.
§ 2254(d)(1).
7. Habeas Corpus O450.1
3. Habeas Corpus O450.1
A state-court decision involves an unreasonable application of clearly established Supreme Court precedent, as basis
for granting federal habeas relief to a state
prisoner, if it identifies the correct governing legal principle but unreasonably applies that principle to the facts of the
prisoner’s case. 28 U.S.C.A. § 2254(d)(1).
4. Habeas Corpus O450.1
For a state-court decision to involve
an unreasonable application of clearly established Supreme Court precedent, as basis for granting federal habeas relief to a
state prisoner, the decision must be more
than incorrect or erroneous, and the state
court’s application must be objectively unreasonable. 28 U.S.C.A. § 2254(d)(1).
A state-court factual determination is
not unreasonable, as would provide basis
for granting federal habeas relief to a state
prisoner, merely because the federal habeas court would have reached a different
conclusion in the first instance.
28
U.S.C.A. § 2254(d)(2).
8. Habeas Corpus O842
When a district court denies leave to
amend a state prisoner’s federal habeas
petition, based on a determination that the
proposed claim would be futile, the Court
of Appeals reviews the determination of
futility de novo. 28 U.S.C.A. § 2254; Fed.
R. Civ. P. 15(a)(2).
9. Habeas Corpus O842
The Court of Appeals reviews de novo
a district court’s procedural default deter-
APPENDIX A
2a
596
985 FEDERAL REPORTER, 3d SERIES
minations regarding a state prisoner’s federal habeas claims. 28 U.S.C.A. § 2254.
received plea deal. U.S. Const. Amend.
14; 28 U.S.C.A. § 2254(d)(1).
10. Habeas Corpus O450.1, 452
13. Habeas Corpus O770
State’s apparent concession, that a Supreme Court decision was clearly established law, would be rejected by the federal habeas court, because the parties to the
state prisoner’s federal habeas proceeding
could not waive the standard of federal
habeas review under Antiterrorism and
Effective Death Penalty Act (AEDPA),
which allowed federal habeas relief to be
granted to a state prisoner if the state
court’s adjudication of the merits of the
prisoner’s federal claim was contrary to or
an unreasonable application of clearly established Supreme Court precedent. 28
U.S.C.A. § 2254(d)(1).
A state court’s finding, when adjudicating a state prisoner’s Brady due process claim, that suppressed evidence is
cumulative, is a factual determination, for
purposes of availability of federal habeas
relief if a state court’s factual determination is unreasonable. U.S. Const. Amend.
14; 28 U.S.C.A. § 2254(d)(2).
11. Constitutional Law O4594(1)
The three elements of a Brady due
process violation based on the suppression
of evidence are: (1) the evidence is favorable to the accused; (2) the prosecution
suppressed the evidence; and (3) the evidence is material. U.S. Const. Amend. 14.
12. Habeas Corpus O480
State court’s determination, when adjudicating state prisoner’s Brady due process claim, that prisoner had not shown
that disclosure of suppressed impeachment
evidence, regarding three additional benefits that state had conferred on witness
who entered into plea deal, might have
affected the outcome of murder trial, was
not contrary to or an reasonable application of clearly established Supreme Court
precedent in 1985, as would provide basis
for federal habeas relief; testimony of another witness, who had survived in murder-for-hire incident in which two victims
died, had been crucial in identifying prisoner as one of the perpetrators, and the
defense possessed and used a wealth of
impeachment evidence against witness who
14. Habeas Corpus O480
State court’s factual determination,
that withheld impeachment evidence was
cumulative, was not unreasonable, as
would provide basis for federal habeas relief, with respect to state prisoner’s Brady
due process claim challenging State’s failure to disclose, in murder prosecution,
three additional benefits that state had
conferred on witness who entered into plea
deal; defense severely impeached witness
with evidence portraying him as serial liar
with strong incentives to fabricate his testimony, in order to avoid a potential death
sentence for his own involvement in the
crimes, and to continue to receive favorable treatment from State. U.S. Const.
Amend. 14; 28 U.S.C.A. § 2254(d)(2).
15. Habeas Corpus O480
State court’s determination, that no
Brady due process violation arose from
State’s delayed disclosure of police reports
and arrest photographs concerning putative alternative perpetrators of the murders, which delay had not prevented the
defense from using the reports and photographs at trial, was not contrary to or an
unreasonable application of clearly established Supreme Court precedent, as would
provide basis for federal habeas relief.
U.S. Const. Amend. 14; 28 U.S.C.A.
§ 2254(d)(1).
APPENDIX A
3a
HOOPER v. SHINN
Cite as 985 F.3d 594 (9th Cir. 2021)
16. Constitutional Law O4594(1)
Suppressed evidence is material, for
Brady due process purposes, only if there
is a reasonable probability that, had the
evidence been disclosed to the defense, the
result of the proceeding would have been
different, and reasonable probability is a
probability sufficient to undermine confidence in the outcome. U.S. Const. Amend.
14.
17. Constitutional Law O4594(1)
In determining the materiality of suppressed evidence, as element for Brady
due process claim, the court 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. U.S. Const. Amend. 14.
18. Constitutional Law O4594(1)
A Brady due process 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. U.S.
Const. Amend. 14.
19. Constitutional Law O4594(1)
Materiality of the withheld evidence,
for purposes of Brady due process claim,
must be analyzed cumulatively, with the
court first examining the force and nature
of the withheld evidence item by item, and
then considering the cumulative effect of
the suppressed evidence, gauging the collective impact by stepping back and considering the strength of the prosecution’s
case. U.S. Const. Amend. 14.
20. Constitutional Law O4594(10)
Criminal Law O2007
Defendant did not show reasonable
probability of different result, as required
for materiality element for Brady due pro-
597
cess claim relating to State’s failure to
disclose, at an earlier point before trial,
police reports and arrest photographs of
alleged alternative perpetrators of the
murders, and State’s failure to disclose
until after trial three additional benefits
that State conferred on witness who entered into plea deal; State had strong case
even without witness’s testimony, jury
knew about report and photographs, and
jury knew that the witness was a selfinterested liar. U.S. Const. Amend. 14.
21. Federal Civil Procedure O851
Futility of amendment of a pleading
can, by itself, justify the denial of a motion
for leave to amend. Fed. R. Civ. P.
15(a)(2).
22. Federal Civil Procedure O851
Amendment to a pleading is futile,
justifying denial of leave to amend, if the
claim sought to be added is not viable on
the merits. Fed. R. Civ. P. 15(a)(2).
23. Sentencing
and
Punishment
O1788(5, 10)
When a death sentence, which is challenged under the Eighth Amendment, 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. U.S. Const. Amend. 8.
24. Habeas Corpus O508
State court’s determination that, even
assuming that state prisoner’s prior murder convictions were invalid, the error was
harmless, under Eighth Amendment, as to
prisoner’s death sentence because there
were still two aggravating factors and no
mitigating factors, so death sentence would
have been required under state law, was
not contrary to clearly established Supreme Court precedent, as would provide
basis for federal habeas relief. U.S.
APPENDIX A
4a
598
985 FEDERAL REPORTER, 3d SERIES
Const. Amend. 8; 28 U.S.C.A. § 2254(d)(1);
Ariz. Rev. Stat. Ann. § 13-703(F)(1, 5, 6)
(as in effect in 1982).
25. Habeas Corpus O768
In cases under the Antiterrorism and
Effective Death Penalty Act (AEDPA), the
federal habeas court applies a presumption
that state courts know and follow the law,
and gives state-court decisions the benefit
of the doubt. 28 U.S.C.A. § 2254.
26. Habeas Corpus O481
State prisoners are not entitled to federal habeas relief based on trial error unless they can establish that it resulted in
actual prejudice, so that the federal habeas
court has grave doubt about whether the
trial error of federal law had a substantial
and injurious effect or influence in determining the jury’s verdict. 28 U.S.C.A.
§ 2254.
27. Constitutional Law O4744(2)
The mere admission of evidence that
might not otherwise have been admitted,
at capital sentencing proceedings, does not
demand the automatic vacatur of a death
sentence, based on a due process violation.
U.S. Const. Amend. 14.
28. Habeas Corpus O404
A state prisoner may obtain federal
habeas review of a defaulted federal claim
by showing cause for the default and prejudice from a violation of federal law. 28
U.S.C.A. § 2254.
29. Habeas Corpus O401
Procedural default of a state prisoner’s federal habeas claims may be excused
when the prisoner demonstrates that failure to consider the claims will result in a
fundamental miscarriage of justice. 28
U.S.C.A. § 2254.
30. Habeas Corpus O406
When a State requires a state prisoner to raise an ineffective-assistance-of-tri-
al-counsel claim in a state collateral proceeding, the prisoner may establish cause
to excuse the procedural default of a federal habeas claim alleging that the prisoner
had received ineffective assistance of counsel during sentencing proceedings by demonstrating that counsel in the initial-review
state collateral proceeding was ineffective
or there was no counsel in such a proceeding. U.S. Const. Amend. 6; 28 U.S.C.A.
§ 2254.
31. Habeas Corpus O409
A state prisoner establishes prejudice, as element for excusing procedural
default of a federal habeas claim alleging
ineffective assistance of trial counsel, by
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. U.S. Const. Amend. 6.
32. Habeas Corpus O409
To find a reasonable probability that
state postconviction counsel prejudiced defendant, as element of ineffective assistance of counsel, by failing to raise a claim
of ineffective assistance of trial counsel, for
purposes of excusing, based on ineffective
assistance of state postconviction counsel,
a state prisoner’s procedural default of a
federal habeas claim of ineffective assistance of trial counsel, the federal habeas
court must also find a reasonable probability that the claim of ineffective assistance
of trial counsel would have succeeded had
it been raised. U.S. Const. Amend. 6; 28
U.S.C.A. § 2254.
33. Criminal Law O1960, 1961
In assessing prejudice, as element of
ineffective assistance of counsel, with respect to counsel’s deficient performance in
investigating and presenting mitigation evidence for the penalty phase of a capital
murder trial, the court must reweigh the
APPENDIX A
5a
599
HOOPER v. SHINN
Cite as 985 F.3d 594 (9th Cir. 2021)
evidence in aggravation against the totality
of available mitigating evidence, and the
likelihood of a different result must be
substantial, not just conceivable. U.S.
Const. Amend. 6.
34. Criminal Law O1960, 1961
Even assuming that counsel performed deficiently, as element of ineffective assistance of counsel, in failing to investigate and present mitigation evidence
for penalty phase of capital murder trial,
defendant was not prejudiced, where two
aggravating factors carried significant
weight at sentencing, i.e., offenses were
committed as consideration for the receipt,
or in expectation of the receipt, of anything of pecuniary value, and offenses
were committed in especially heinous, cruel, or depraved manner, and mitigation
evidence was insubstantial, e.g., defendant’s difficult upbringing, his prison behavior, and neuropsychologist’s speculative
conclusion that defendant had some type
of brain impairment. U.S. Const. Amend.
6; Ariz. Rev. Stat. Ann. § 13-703(F)(5, 6)
(as in effect in 1982).
35. Habeas Corpus O481
State appellate court’s rejection of
state prisoner’s constitutional challenge to
trial court’s failure to make individualized
determination before imposing non-visible
shackles on prisoner, for capital murder
trial, was not contrary to or an unreasonable application of clearly established Supreme Court precedent in 1985, as would
provide basis for federal habeas relief. 28
U.S.C.A. § 2254(d)(1).
West Codenotes
Prior Version Recognized as Unconstitutional
Ariz. Rev. Stat. Ann. § 13-703(B)
Appeal from the United States District
Court for the District of Arizona, Stephen
M. McNamee, District Judge, Presiding,
D.C. No. 2:98-CV-02164-SMM
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.
Before: JACQUELINE H. NGUYEN,
MARK J. BENNETT, and RYAN D.
NELSON, Circuit Judges.
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.
APPENDIX A
6a
600
985 FEDERAL REPORTER, 3d SERIES
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, 83 S.Ct. 1194, 10
L.Ed.2d 215 (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, 132 S.Ct. 1309, 182
L.Ed.2d 272 (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.
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 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
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,
APPENDIX A
7a
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
Cite as 985 F.3d 594 (9th Cir. 2021)
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.,
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 TTT 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.
601
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. 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
APPENDIX A
8a
602
985 FEDERAL REPORTER, 3d SERIES
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 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 firstdegree murder (Count Four), three counts
of kidnapping (Counts Five to Seven),
three counts of armed robbery (Counts
Eight to Ten), and one count of firstdegree 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 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.
APPENDIX A
9a
HOOPER v. SHINN
Cite as 985 F.3d 594 (9th Cir. 2021)
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 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.
603
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 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 crossracial 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
APPENDIX A
10a
604
985 FEDERAL REPORTER, 3d SERIES
armed with guns, and Hooper had a large
gun ‘‘similar to a .357 magnum or a largebarrel .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
throat. McCall stated that it was a ‘‘professional job’’ and a ‘‘contract TTT 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
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 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
Harper did not testify because she could not
APPENDIX A
11a
be found.
HOOPER v. SHINN
Cite as 985 F.3d 594 (9th Cir. 2021)
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.
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 ar3.
605
rest 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 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
As part of his plea deal, Merrill pleaded
guilty to an unrelated burglary and theft and
APPENDIX A
12a
received an eight-year sentence.
606
985 FEDERAL REPORTER, 3d SERIES
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-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.
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
APPENDIX A
13a
HOOPER v. SHINN
Cite as 985 F.3d 594 (9th Cir. 2021)
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.
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
4.
We are unable to discern from the record
whether the defense interviewed these two
detectives.
5.
Before trial, the prosecution had disclosed
police reports that mentioned some of the
607
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
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
APPENDIX A
14a
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.
608
985 FEDERAL REPORTER, 3d SERIES
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.
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 Hoo-
per 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 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
APPENDIX A
15a
HOOPER v. SHINN
Cite as 985 F.3d 594 (9th Cir. 2021)
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.
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.
6.
All citations to A.R.S. § 13-703 refer to the
version in effect in 1982.
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 Hoo-
609
I’m better off dead or in the pen because if
I got out again I would 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.
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’’
APPENDIX A
16a
per 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.
610
985 FEDERAL REPORTER, 3d SERIES
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. § 13703(F)(5). The court found this fac8.
tor 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. § 13703(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 TTTT’’8
E.
1.
Procedural History
Direct Appeal
On June 10, 1985, the Arizona Supreme
Court affirmed Hooper’s convictions and
sentence. State v. Hooper, 145 Ariz. 538,
703 P.2d 482 (1985) (en banc). We discuss
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,
APPENDIX A
17a
536 U.S. 584, 609, 122 S.Ct. 2428, 153
L.Ed.2d 556 (2002). But Ring does not apply
retroactively. Schriro v. Summerlin, 542 U.S.
348, 358, 124 S.Ct. 2519, 159 L.Ed.2d 442
(2004).
HOOPER v. SHINN
Cite as 985 F.3d 594 (9th Cir. 2021)
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, 145 Ariz. 520,
703 P.2d 464 (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.
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;
611
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, 96
S.Ct. 2392, 49 L.Ed.2d 342 (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 might have affected the outcome of
the trial.’’ Bracy, 703 P.2d at 472 (citing
Agurs, 427 U.S. 97, 96 S.Ct. 2392).
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
APPENDIX A
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612
985 FEDERAL REPORTER, 3d SERIES
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.
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 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.
APPENDIX A
19a
HOOPER v. SHINN
Cite as 985 F.3d 594 (9th Cir. 2021)
Sanders, 546 U.S. 212, 126 S.Ct. 884, 163
L.Ed.2d 723 (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 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 re9.
613
ports 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, 105 S.Ct. 3375, 87 L.Ed.2d 481
(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, 132 S.Ct.
1309, 182 L.Ed.2d 272 (2012). He also requested a remand for the district court to
reconsider its denial of leave to amend. A
motions panel of 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
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
APPENDIX A
20a
that the Illinois Supreme Court had unreasonably applied Batson v. Kentucky, 476 U.S. 79,
106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). 729
F.3d at 787. The court remanded the case to
614
985 FEDERAL REPORTER, 3d SERIES
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 hearing, and granted a certificate of
appealability on both remanded issues.
Hooper filed a timely amended notice of
appeal.
II. STANDARD OF REVIEW
evidence presented in the State court proceeding,’’ id. § 2254(d)(2).
[2–4] 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, 120 S.Ct. 1495,
146 L.Ed.2d 389 (2000). ‘‘A decision involves an ‘unreasonable application’ of
clearly established federal law under
§ 2254(d)(1) if it ‘identifies the correct governing legal principle TTT 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, 120 S.Ct. 1495). ‘‘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 objectively unreasonable.’’ Lockyer v.
Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166,
155 L.Ed.2d 144 (2003) (citation omitted).
[1] 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
[5, 6] ‘‘[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, 132 S.Ct. 38, 181 L.Ed.2d 336 (2011).
‘‘If no Supreme Court precedent creates
clearly established federal law relating to
the legal issue the habeas petitioner raised
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 sen-
tences, 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, 208 Ill.2d 457, 281
Ill.Dec. 581, 804 N.E.2d 546, 550, 560 (2004)
(denying writ of mandamus challenging thenGovernor’s grant of blanket clemency to over
160 inmates who had been sentenced to
death). Illinois has not retried Hooper.
APPENDIX A
21a
HOOPER v. SHINN
Cite as 985 F.3d 594 (9th Cir. 2021)
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. ––––, 141 S.Ct. 517, 520, 208
L.Ed.2d 353 (2020) (per curiam) (quoting
Harrington v. Richter, 562 U.S. 86, 103,
131 S.Ct. 770, 178 L.Ed.2d 624 (2011)).
[7] 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, 130 S.Ct. 841, 175 L.Ed.2d
738 (2010).
[8, 9] 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).
III. DISCUSSION
We first address the three certified issues: (1) whether nondisclosure of the
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. Ac-
615
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
[10] The last state-court adjudication
on the merits of Hooper’s Brady claims is
the Arizona Supreme Court’s 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, 132
S.Ct. 38. Because Bagley, 473 U.S. 667, 105
S.Ct. 3375, was issued on July 2, 1985, it
was not clearly established.11 Thus, the
district court erred in relying on Bagley.12
cordingly, 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).
11. The State appears to concede that Bagley
was clearly established. We reject this concession because parties cannot waive § 2254(d)’s
APPENDIX A
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985 FEDERAL REPORTER, 3d SERIES
[11] The clearly established law at the
time of the Arizona Supreme Court’s decision was Brady, 373 U.S. 83, 83 S.Ct. 1194
(1963), and Agurs, 427 U.S. 97, 96 S.Ct.
2392 (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, 83 S.Ct. 1194. 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, 96 S.Ct. 2392, (2)
where the defense makes a specific request, and the prosecutor fails to provide
responsive evidence, id. at 104, 96 S.Ct.
2392, and (3) where the defense makes a
general request or no request, and the
prosecutor suppresses favorable evidence,
id. at 106–07, 96 S.Ct. 2392. 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, 96 S.Ct. 2392.13 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, 83 S.Ct. 1194; Agurs,
427 U.S. at 104, 96 S.Ct. 2392. These legal
principles are the applicable clearly established law for AEDPA purposes here. See
Lockyer, 538 U.S. at 71–72, 123 S.Ct. 1166
(‘‘ ‘[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
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.’’).
tion of the ‘‘meaning of the term ‘materiality.’ ’’ Id. at 681 n.12, 105 S.Ct. 3375 (citation
omitted).
12. We note that the district court did not have
the benefit of Greene v. Fisher, 565 U.S. 34,
132 S.Ct. 38, 181 L.Ed.2d 336 (2011), when it
identified the applicable clearly established
law.
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, 105 S.Ct. 3375. 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 explana-
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 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).
APPENDIX A
23a
HOOPER v. SHINN
Cite as 985 F.3d 594 (9th Cir. 2021)
1. AEDPA Analysis Regarding Merrill Benefits
[12] 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 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
617
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, 96 S.Ct. 2392. 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).
[13] 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 impeach-
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,
APPENDIX A
24a
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.’’).
618
985 FEDERAL REPORTER, 3d SERIES
ment 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.’’).
[14] 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.
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
[15] 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,
92 S.Ct. 763, 31 L.Ed.2d 104 (1972), as the
applicable clearly established law. But
those cases did not clearly establish that a
delayed disclosure is a Brady violation
where the defense had the opportunity to
use the evidence at trial. Nor has any
Supreme Court case so held.
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.
APPENDIX A
25a
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
Cite as 985 F.3d 594 (9th Cir. 2021)
619
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.
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.
3. AEDPA Analysis Regarding Photos
4. De Novo Review of Brady Claims
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 at
472. This incident occurred before the photos had been admitted.
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, 83 S.Ct. 1194. Thus, his Brady
claims turn on the prejudicial effect or
materiality of the photos, police reports,
and Merrill benefits.18
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
[16–18] ‘‘[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 different. A ‘reasonable probability’ is
a probability sufficient to undermine confidence in the outcome.’’ Bagley, 473 U.S. at
682, 105 S.Ct. 3375. 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
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.
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).
APPENDIX A
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620
985 FEDERAL REPORTER, 3d SERIES
result of the proceeding would have been
different.’’ Turner v. United States, –––
U.S. ––––, 137 S. Ct. 1885, 1893, 198
L.Ed.2d 443 (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, 115 S.Ct. 1555, 131 L.Ed.2d 490
(1995).
[19] ‘‘[M]ateriality of the withheld evidence [must] be analyzed cumulatively
TTTT’’ 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
TTTT’’ Id.
[20] 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 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 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 present-
19. And, of course, as noted above, Marilyn
testified that the men in the photos were not
the men who invaded her home, murdered
APPENDIX A
27a
her husband and mother, and tried to murder
her.
HOOPER v. SHINN
Cite as 985 F.3d 594 (9th Cir. 2021)
ed 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 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.’’).
20.
621
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 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, 115 S.Ct. 1555. The State had
a strong case, even without Merrill’s testimony. The jury knew about the photos and
The jury obviously did not believe the ali-
APPENDIX A
28a
bis.
622
985 FEDERAL REPORTER, 3d SERIES
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 TTT 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 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.
[21, 22] ‘‘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
[23] 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 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. Mis-
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
APPENDIX A
29a
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
TTTT’’).
HOOPER v. SHINN
Cite as 985 F.3d 594 (9th Cir. 2021)
sissippi, 494 U.S. 738, 741, 751–54, 110
S.Ct. 1441, 108 L.Ed.2d 725 (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 TTTT A
death sentence is thus required regardless
of the trial court’s belief that a life sentence is appropriate.’’ State v. Beaty, 158
Ariz. 232, 762 P.2d 519, 533–34 (1988); see
also State v. Jordan, 137 Ariz. 504, 672
P.2d 169, 173 (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, 135 Ariz. 42, 659
P.2d 1, 13 (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, 110 S.Ct. 3047, 111 L.Ed.2d
511 (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, 122 S.Ct.
2428, 153 L.Ed.2d 556 (2002).
623
[24] 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. § 13703(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.
[25] The state court conducted a harmless error analysis in accordance with Supreme Court precedent. See Clemons, 494
U.S. at 741, 751–54, 110 S.Ct. 1441. 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
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
22. Hooper makes no claim that the state postconviction court failed to apply the ‘‘beyond a
reasonable doubt’’ harmless error standard.
See Clemons, 494 U.S. at 753, 110 S.Ct. 1441.
Even if he had, he would have had to overcome our rule that, ‘‘in AEDPA cases, we
apply a presumption that state courts know
APPENDIX A
30a
and follow the law and accordingly give statecourt 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.
624
985 FEDERAL REPORTER, 3d SERIES
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.
[26] ‘‘[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, 135 S.Ct. 2187, 192
L.Ed.2d 323 (2015) (quotation marks omitted) (quoting Brecht v. Abrahamson, 507
U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d
353 (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, 135 S.Ct. 2187 (quotation
marks omitted) (quoting O’Neal v. McAninch, 513 U.S. 432, 436, 115 S.Ct. 992, 130
L.Ed.2d 947 (1995)); see also Beardslee v.
Brown, 393 F.3d 1032, 1041–44 (9th Cir.
2004) (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. § 13703(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, 126 S.Ct.
884, 163 L.Ed.2d 723 (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 Sanders.
Hooper’s claim is not viable, but we first
address the parties’ dispute over whether
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
APPENDIX A
31a
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.
HOOPER v. SHINN
Cite as 985 F.3d 594 (9th Cir. 2021)
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, 132
S.Ct. 38 (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 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.’’
625
546 U.S. at 220–21, 126 S.Ct. 884. 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, 114 S.Ct.
2004, 129 L.Ed.2d 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, 114 S.Ct. 2004.
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.
[27] Finally, the Court confirmed in
Kansas v. Carr, 577 U.S. 108, 136 S.Ct.
633, 193 L.Ed.2d 535 (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 capitalsentencing proceeding is whether the evidence ‘so infected the sentencing proceeding with unfairness as to render the jury’s
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 Ari-
APPENDIX A
32a
zona 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.
626
985 FEDERAL REPORTER, 3d SERIES
imposition of the death penalty a denial of
due process.’ ’’ Id. at 123–24, 136 S.Ct. 633
(quoting Romano, 512 U.S. at 12, 114 S.Ct.
2004). In addition, Carr appears to reject
the categorical rule urged by Hooper:
‘‘The mere admission of evidence that
might not otherwise have been admitted
TTT does not demand the automatic vacatur of a death sentence.’’ Id. at 124, 136
S.Ct. 633.
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 deny25. 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, 136 S.Ct.
633 (‘‘Whatever the merits of defendants’ procedural objections, we will not shoehorn them
into the Eighth Amendment’s prohibition of
‘cruel and unusual punishments.’ TTT [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
ing his second petition, the post-conviction
court found 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
[28–31] ‘‘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, 132 S.Ct. 1309.26 Under Martinez, ‘‘when a State requires a prisoner to
raise an ineffective-assistance-of-trialcounsel claim in a collateral proceeding,’’
id. at 14, 132 S.Ct. 1309, ‘‘a prisoner may
establish ‘cause’ to excuse the procedural
default of a claim that the prisoner had
received ineffective assistance of counsel
TTT during sentencing proceedings by
demonstrating that counsel in the initialreview 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
introduction of ‘unduly prejudicial’ evidence
that would ‘render the trial fundamentally
unfair.’ ’’ (citations and brackets omitted)).
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, 111 S.Ct. 2546,
115 L.Ed.2d 640 (1991). This exception is not
at issue here.
APPENDIX A
33a
HOOPER v. SHINN
Cite as 985 F.3d 594 (9th Cir. 2021)
grounds by McKinney v. Ryan, 813 F.3d
798, 819 (9th Cir. 2015) (en banc).27 A
prisoner establishes prejudice by demonstrating ‘‘that the underlying ineffectiveassistance-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, 132
S.Ct. 1309.
The only issue before us is whether
Hooper has established ‘‘cause’’ to excuse
the procedural default.28
[32] To establish ‘‘cause,’’ Hooper must
show that his post-conviction counsel was
ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (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 per-
formance, 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 [postconviction] 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 habeas
counsel would not have been deficient for
failing to raise it.’’ Atwood v. Ryan, 870
F.3d 1033, 1060 (9th Cir. 2017).29
[33] 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 find there
27. Because the parties do not dispute that
Martinez applies to Hooper’s ineffective assistance of counsel claim, we assume without
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 initialreview collateral proceedings’’ before 1989).
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’’).
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.
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 [postconviction relief] counsel performed in a deficient manner’’ and ‘‘need not show actual
prejudice resulting from his PCR counsel’s
627
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:
APPENDIX A
34a
628
985 FEDERAL REPORTER, 3d SERIES
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, 104 S.Ct. 2052. ‘‘In assessing prejudice, we reweigh the evidence in aggravation against the totality of available mitigating evidence.’’ Wiggins v. Smith, 539
U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d
471 (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, 131 S.Ct. 770).
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 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.
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.
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
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, they ‘‘repeatedly sat him down and talked to him.’’
It was clear to me there were no mitigating
factors, and almost every aggravating factor
listed in the statute was present.
***
[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.
APPENDIX A
35a
HOOPER v. SHINN
Cite as 985 F.3d 594 (9th Cir. 2021)
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 fami-
629
ly member stated that from an 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 than not that the results
would have shown objective data of brain
impairment.31
31. In light of Dr. Heilbronner’s 2011 and
2015 evaluations, we deny as moot Hooper’s
2010 motion requesting a confidential contact
APPENDIX A
36a
visit between Dr. Heilbronner and Hooper to
conduct a neuropsychological examination.
630
985 FEDERAL REPORTER, 3d SERIES
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. § 13703(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, 218 Ariz. 268, 183 P.3d 519, 535
(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)).
at 481–82 (quoting in part State v. McCall,
139 Ariz. 147, 677 P.2d 920, 934 (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.
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 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, TTT she did not lose consciousness as
a result thereof, and TTT 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
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, 131 S.Ct. 1388, 179 L.Ed.2d 557
(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 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, 213 Ariz. 116,
140 P.3d 899, 927 (2006) (en banc) (‘‘[Defendant’s] childhood troubles deserve little
value as a mitigator for the murders he
committed at age thirty-three.’’).
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, 104 S.Ct. 2052.
APPENDIX A
37a
HOOPER v. SHINN
Cite as 985 F.3d 594 (9th Cir. 2021)
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
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
631
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, 131 S.Ct. 1388, 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 disorders ‘is not sufficient
to establish prejudice.’ ’’ (citation omitted)).
[34] Considering the two aggravating
factors, both of which carry significant
weight, alongside Hooper’s insubstantial
mitigation evidence, there is no ‘‘reason-
APPENDIX A
38a
632
985 FEDERAL REPORTER, 3d SERIES
able 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, 104 S.Ct. 2052. 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 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.
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.
‘‘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).
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
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.’’
APPENDIX A
39a
HOOPER v. SHINN
Cite as 985 F.3d 594 (9th Cir. 2021)
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, 123
S.Ct. 1029, 154 L.Ed.2d 931 (2003).
The Arizona Supreme Court considered
and rejected Hooper’s uncertified claims
on direct appeal. Hooper, 703 P.2d at 487–
633
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.
[35] 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, 125 S.Ct. 2007, 161
L.Ed.2d 953 (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 Arizona
Supreme Court’s decision was not contrary
APPENDIX A
40a
634
985 FEDERAL REPORTER, 3d SERIES
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).
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.
,
Bilal HUSSAIN, Petitioner,
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 could debate the district
court’s rejection of Hooper’s second uncertified claim.
v.
Jeffrey A. ROSEN, Acting Attorney
General, Respondent.
No. 18-70780
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted August 12,
2020 Pasadena, California
Filed January 11, 2021
We deny Hooper’s request to expand
the COA.
Background: Noncitizen, who was Pakistani national, sought review of decision of
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, 131 S.Ct. 1388. 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.
APPENDIX A
41a
%%m
OFf ICE DISTRIBUTIC>Ni|;Sifefefe3i!
APPEALS
80NOS,
m THi SUPEHIOH COUIIT
C H A N G E OF VENUE '
JURY FEES
OF
REMANDS
MARICOPA COUNTY, STATE OF ARIZONA
32"L
Oct. 20, 1983
R6FUND
FORFEITURE ..<, ,
SENTENCING
Hon. Ceoi
^tterson, J r .
JUDCE OR COMMISSIONER
VIVIAN KRINGLE,
m.
CB 121686
«
ft -
Vtana
clerk.
Dei)uty
County Attorney
By: Joseph Brownlee
Attorney General
By: Michael Jones
THE STATE OP ARIZONA
vs.
WILLIAM BRACY (B)
MURRAY HOOPER (C)
V
J. Douglas McTMy
*H, Allen Gerh^ardt
Supreme Court of Arizona
The Defendants' Motions for Vacation of Judgment having
come on for hearings,
The Court having heard an<3 considered the evidentiary ::;.;
presentations, reviewed and considered the pleadings and law
presented and evaluated the arguments of respective coxinsels.
The Court determines that the issue before it is whether
the matters presented in the hearing sessions warrant the
vacation of judgments and the granting of new trials for the
defendants.
The Defendants alleged for the new trial motions two
bases in their pleadings but developed five issues factually
as the hearings progressed.
The Court determines that only three of the issues
are,newly discovered and only these will be addressed in
these orders.
The Court Finds th&t:
1. Daniel F. Ryan assisted Kathy Merrill in making her
G.M.A.C. auto payments from approximately September,1981
to September 30, 1982, by acting as a conduit for
said payments to a v o M her detection.
-CLERK OF THE COUm
fm^uMML DISTRIBUTION CENiTEi
Continued
APPENDIX B
Recerved: ^GT 24, 198|,
ftacessari! OCT P.« looa
42a
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MUM
•:..'.'••• ? > : , • ' •••
APP£AL5
BONOS,
IN TH£ SUPERIOH COUR?
••
REFUND
• • •
.fORfEltURC., r • .
CHANGE OF VENUe
-
-
•
.
• •
-
T - ;
JURY FEES
OF
REMANDS
MARICOPA COUNTY, STATE OF ARIZONA:
32-L
JV:
CR 121686
Oct. 20, 1983
'
DAie
SENTENCING
Hon. Cecil B. Patterson, J r .
JUCHJE O R COMMISSlONCtI
State vs. Bracy (B)
Hooper (C)
V I V I A N KRINGLE,
o»rlc
(Continued)
Daniel Ryan iB the course of assisting Mrs, Merrill
advanced monies to Mrs^ Merrill for her
September 1, 1981, payments and her April 23, 1982,
payments which in each instance was an amount of
$414.00 representing 2 auto payments.
3.
At least on the April 23, 1982, payments, Mr. Ryan
was reimbursed for his*assistance at leasfejin part
on June 2, 1982.
4.
This assistance was a distinct benefit to the
Merrills.
5,
Mrs. Merrill was provided approximately $3,000.00
as a result;,: of enrollment in the Maricopa Coohty
Attorney's Protected Witness Program.
>
6,
This assistance was a direct benefit to the wife
of one of the key state's witnesses, Arnold Merrill,
as she was unemployed at the time and her husband
was in custody^^
7.
Arnold Merrill made approximately 22 long distance
telephone calls to his wife from the County Attorney's
Office between, November 11, 1981 and July 15, 1982, while
in custody.
8.
These telephone calls ware not the normal privileges
accorded a person who is in custody,
on
At least/some of these phone calls, Daniel Ryan
had knowledge of their placjement and gave his
consent.
9.
10,
In other instances, Arnold Merrill although in
custody was left unattended by Mr. Ryan or other
law enforeement personnel while in the County Attorney's
f^f^ir'"fln^'ihfl mn^fi n a i i n o n h i s otm irolition.
^XCERK OF THE COURT
APPENDIX
B
{SAIL
DISTRIBUTION cENTEf
Received. ^^1 ' . 4 1983
Continued . .
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V .
^-Sc
OFFICE DISTRIBUTION>-.>'j.ffl: ->v;^';"
AfP£AL5
BONOS,
FORFEITURE,
mfHBSUPEmORCOUUT
MARICOPA COUNTY, STATE OF ARIZONA
Oct, 20, 1983
C H A N G E O F VENUE
JURY FEES
OF
32-L
V _ ^
REMANDS
SENTENCING
Hon. Cecil B. Patterson, J r .
JUDGE OK COMMIMIONES
CR 121686
KEFUND
State vs. Bracy (B)
Hooper (c)
VIVIAN KRINGm,
ci.rk
m.d . Vega
'^""'^
(Continued)
11,
Through lax and sometimes apparently wholely
inadequate administrative procedures, the phone
calls were never tallied up nor presented to the
defense attorneys in discovery.
12.
These 22 telephone calls constituted a significant
benefit to Mr. Merrill.
The above itsan$:^hould have been provided the defense
attorneys pursuant to A.R.C.P. 15.1 and 15.6, as they all
were substantial benefits to witness Merrill.
v^
None of them were provided the defendants as required
by law and rule^of procedure.
The Court d^ermines after a very thorough review of
its own notes an the hearings and trial, a review of selected
portions of the hearing and trial,/: transcripts, the caselaw
presentee^ and reviewed that each of these items would be
additional issues raised for impeachment purposes on both
Arnold Merrill's and Daniel Ryan's trial testimony.
The Court determines also that they are cumulative
of other impeachment matters raised during the trial testimony
of both witnesses Merrill and t^an, by the defendants.
The Court further determines that they are not material
as the term is defined in State v. Jeffers, 661 P.2nd 1105,
135 hz, 404 (1983).
H O B S of the issues after evaluation by ttm Court leads
to a conclusion that had they been introduced by the defendants
during trial they would have changed the verdicts.
CLfcRK OF THt CUUKli
Continued
APPENDIX B
fomW*~ DISTRIBUTION CENiIBI
Received: OCT 2 4 1981
?!^ee33edi OGT g 6 1993
44a
^lii
.V
OFFICE OISTRlBUTIGl<i'.yiJit?a^;^< -: •» ^
APPEALS
BONOSi REFUND
EOteEltURE
IN THi SUFEmOU COURT
C H A N G E OF VENUE •
JURY FEES
REMANDS
SENTENCING
OF
MARICOPA COUNTY, STATE OF ARIZONA
^
32~L
^!7.
Oct. 20, 1983
Hon» Cecil B. Patterson, J r .
OATE
CR 121686
^
'
'•
VIVIAN KRINGLE, • ci«k
m. d , Vega
JUDGE 0 8 COMMISSIONdt
State v s . Bracy (B)
Hooper (C)
-Deputy
'-.
(Continued)
There v;are independent wit^&esses to place the defendants
in the city of Phoenix during the period of time in question,
at the scene of the crises, receiving what appeared very
strongly to be a partial payment from a co-conspirator for
their criminal responsibilities, receipts for useage of
one of the co-conspirator's credit cards in Phoenix during
the period in question, a plan foe surreptitiously g:i^£^i^^.
the defendants out of Phoenix on or about December 31, 1980,
as well as for other testimony which tied the defendants to
the offenses herein.
The Coutt determines also that these independant sources
of evidence were sufficient to convict th^e defetideuitsf in
t h e s e ' m a t t e r s . ^
•
•
" •••;
; '
• .
• '^''''•"'-''
' •-
'•'•''
'
'•"' ,.'
The Court further determines that a cavalier, almost
holier-than though attitude existed on the j^ast of some of
the prosecution team as evidenced by the overreaching,
"I didn't-think-it-mattered," blaserat times, disinterested,
it's-none-of-your-business attitudes taken at various points
during these entire proceedings.
These attitudes hampered the smooth processing of
these matters during all stages and at times caused unnecessary
antagonisms between the prosecu-^»3n and defense teams.
The Coutt is disturbed that all law enforcement supervisors
cafled in the hearings on these motions for vacation of Judgment
showed little or nio interest in reviewing and analyzing allegations
of violations of Marioopa County Jail policies written or
unwritten,we11 established standard methods for handling parsons
in custody while in a law enforcement officer's care, custody
and control, as well as other questionable conduct.
The Court is further disturbed by the fact that t: .::.
at every disooj^'ery and evidentiary gathering effort undertaken
' OF THE COURU
••3TRIBUT(0f}| B
CENIBS
APPENDIX
FORM 43.17
OCT 2 4 1983
et fa
inni
0F THE COURT
I DISTRfBUTION CENTL
45a
Weived: OCT '44: 1983
Continued ,
Poge
•> >
•> J"^
•>
OFFICE DISTRIBUTION-<i>'ys'i^i>i%v#
APPEALS
BONDS,
REFUNO
fOSFEITURE .;
IN THg SUPiRiOII COUHT
CHANGE OF VENue
JURY fees
OF
REAAAND5
AftARICOPA COUNTY, STATE OF ARIZONA
SENTENCING
^
32-L
Oct. 20, 1983
Hon. Cecil B. Patterson. J r .
JUOOtOli COMMISSIONED
CR 121686
State vs. Bracy (B)
Hooper (C)
VIVIAN KRINGLE,
in. d. Vega
(Continued)
by the defense teams in theseipatter's, new revelations of
benefits bestowed upon Mr, Merrill or questionable conduct
by a member or members of the prosecution team are revealed
and require pursuit.
This Court feels it is without recourse for further
review and investigation of some df the conduct by a member
of members of the prosecution team who undertook activities
which are at their best questionable.
Nonetheless, this Court having determined the issues
above presented, based on the case law and facts presented,
IT IS ORDERED denying the Defendants* Motions*^ To
Vacate Judgment.
APPENDIX B
.0R THE mvm
fORM 43,17
IMAIL^ DISTRIBUTION CENTB
fec8ivedr
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L
SUPREME COURT OF ARIZONA
STATE OF ARIZONA,
Appellee,
vs
MURRAY HOOPER,
Appellant.
)
)
)
)
)
)
Supreme Court
No. 5810
Maricopa County
No. CR-121686
)
MANDATE
This Court, having considered this matter, filed its decision
on the 10th day of June, 1985, affirming the judgment of conviction
and sentence of death. A copy of the opinion of this Court is
attached hereto.
The issuance of a warrant of execution in this matter shall
abide the timely filing and disposition of a petition for writ of
certiorari in the Supreme Court of the United States, or the
expiration of the time for filing such a petition.
STATE OF ARIZONA
SUPREME COURT
I DIANA K. BENTLEY, Acting Clerk of the Supreme Court of the
State of Arizona, hereby certify the above to be a full and true copy
of the order made and entered in the above-entitled cause by this
Court on the 10th day of June, 1985.
IN WITNESS WHEREOF, I hereunto
set my hand and affix the seal
of the Supreme Court of the
State of Arizona this 22nd day
of August, 1985.
DIANA K. BENTLEY, Acting cferk
Hon. Robert K. Corbin, Attorney General; Thomas E. Collins, Maricopa.
County Attorney; Hon. Cecil B. Patterson, Judge; Hon. B. Michael Dann,
Presiding Judge; Ross P. Lee, Maricopa County Public Defender; M^J^ray
Hooper; Gordon W. Allison, Maricopa County Court Administrator; United
States Supreme Court; West Publishing Company; Mead Data Central
APPENDIX E
80a
1
WO
2
3
4
5
6
IN THE UNITED STATES DISTRICT COURT
7
FOR THE DISTRICT OF ARIZONA
8
9
10
11
)
)
)
)
)
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)
)
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Murray Hooper,
Petitioner,
vs.
12
Dora B. Schriro et al.,
13
Respondents.
14
No. CV 98-
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