Opposition Brief — Murray Hooper, Petitioner v. David Shinn, Director, Arizona Department of Corrections, Rehabilitation and Reentry

No. 21–6593

In the

Supreme Court of the United States

MURRAY HOOPER,

v.

DAVID SHINN,

Petitioner,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals for the Ninth Circuit

Capital Case

BRIEF IN OPPOSITION

MARK BRNOVICH

Attorney General

of Arizona

JEFFREY L. SPARKS

Acting Chief Counsel for the

Capital Litigation Section

(Counsel of Record)

JOSEPH A. KANEFIELD

Chief Deputy and

Chief of Staff

BRUNN W. ROYSDEN III

Solicitor General

OFFICE OF THE ARIZONA

ATTORNEY GENERAL

Capital Litigation Section

2005 N. Central Ave.

Phoenix, AZ 85004

(602) 542–4686

CLDocket@azag.gov

Counsel for Respondent

QUESTIONS PRESENTED FOR REVIEW

1.

The Arizona Supreme Court issued its decision adjudicating the merits of

Petitioner’s claim under Brady v. Maryland, 373 U.S. 83 (1963), on June 10, 1985.

This Court’s decision in United States v. Bagley, 473 U.S. 667 (1985), was issued

later, on July 2, 1985. Did the court below nonetheless err by concluding that

Bagley was not clearly established at the time the state court rendered its decision

for purposes of 28 U.S.C. § 2254(d)(1)?

2.

Did the court below err by concluding that the state court reasonably

determined that undisclosed benefits to a witness were not material where the

witness’s testimony was corroborative and non-pivotal and the witness was severely

impeached at trial with evidence firmly establishing that he was biased and

motivated to lie?

2

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ................................................................. 2

TABLE OF CONTENTS ................................................................................................ 3

TABLE OF AUTHORITIES .......................................................................................... 4

INTRODUCTION .......................................................................................................... 5

STATEMENT OF THE CASE....................................................................................... 7

REASONS FOR DENYING THE PETITION ............................................................ 18

I.

BECAUSE BAGLEY WAS DECIDED AFTER THE ARIZONA SUPREME

COURT ISSUED ITS OPINION ADJUDICATING THE MERITS OF

HOOPER’S CLAIM, IT WAS NOT CLEARLY ESTABLISHED FEDERAL LAW

UNDER § 2254(D)(1).................................................................................. 18

II.

THE ARIZONA SUPREME COURT REASONABLY CONCLUDED THAT THE

UNDISCLOSED BENEFITS WERE NOT MATERIAL. ........................................ 21

CONCLUSION............................................................................................................. 25

3

TABLE OF AUTHORITIES

Cases

Barker v. Fleming, 423 F.3d 1085 (9th Cir. 2005) ...................................................... 24

Brady v. Maryland, 373 U.S. 83 (1963) .................................................................. 5, 12

Cullen v. Pinholster, 563 U.S. 170 (2011) ............................................................. 18, 19

Gentry v. Sinclair, 705 F.3d 884 (9th Cir. 2013) ........................................................ 24

Gray v. Maryland, 523 U.S. 185 (1985) ...................................................................... 19

Greene v. Fisher, 565 U.S. 34 (2011) ........................................................... 5, 18, 19, 20

Harrington v. Richter, 562 U.S. 86 (2011) .............................................................. 6, 21

Lockyer v. Andrade, 538 U.S. 63 (2003) ...................................................................... 18

Shinn v. Kayer, 592 U.S. --- (2020).......................................................................... 6, 21

Teague v. Lane, 489 U.S. 288 (1989) ........................................................................... 19

United States v. Agurs, 427 U.S. 97 (1976) ....................................................... 5, 13, 15

United States v. Bagley, 473 U.S. 667 (1985) ......................................................... 5, 14

Statutes

28 U.S.C. § 2254(d) .................................................................................................. 5, 15

28 U.S.C. § 2254(d)(1) .................................................................... 14, 15, 16, 18, 19, 20

28 U.S.C. § 2254(d)(2) ............................................................................................ 16, 18

Rules

Sup. Ct. R. 10 ............................................................................................................... 18

4

INTRODUCTION

Hooper was convicted of two counts of first-degree murder and other offenses,

and sentenced to death, due to his participation in the execution-style murders of

Pat Redmond and Helen Phelps, and the attempted murder of Marilyn Redmond, at

the behest of a Chicago crime organization on New Year’s Eve 1980. Arnold Merrill,

a cooperating witness who was involved in the conspiracy, was thoroughly

impeached at trial on a number of topics, but the State failed to disclose additional

benefits Merrill received. The Arizona Supreme Court concluded on direct appeal

that the trial court did err by denying Hooper’s motion for new trial based on the

nondisclosure because, although the benefits had impeachment value and were

suppressed, they were not material under Brady v. Maryland, 373 U.S. 83 (1963),

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

On habeas review under AEDPA, the court below held that the state court’s

decision was a reasonable application of Brady and Agurs and based on a

reasonable determination of the facts under 28 U.S.C. § 2254(d).

The court of

appeals likewise rejected Hooper’s argument that United States v. Bagley, 473 U.S.

667 (1985), was the applicable clearly established federal law governing Brady

materiality because it was decided over a month after the state court adjudicated

Hooper’s claim.

Hooper challenges these conclusions, but has presented no

compelling reason for this Court’s intervention. The court of appeals’ conclusion

regarding Bagley was based on a straightforward application of Greene v. Fisher,

565 U.S. 34 (2011), and the state court’s lack of materiality finding was not “beyond

5

any possibility for fairminded disagreement.” Shinn v. Kayer, 592 U.S. --- (2020)

(per curiam) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).

6

STATEMENT OF THE CASE

On New Year’s Eve 1980, Hooper, William Bracy, and Ed McCall forced their

way at gunpoint into the home of Pat Redmond and his wife Marilyn Redmond.

Pet. App. 6a.

Pat, Marilyn, and Marilyn’s mother, Helen Phelps, were inside

preparing for a holiday dinner.

Hooper and the other two intruders demanded

valuables, forced the victims to lie face down on the bed in the master bedroom, and

then bound and gagged the victims. The intruders then shot each victim in the

head and slashed Pat Redmond’s throat. Pat and Helen died, but Marilyn survived

being shot. Id.

Robert Cruz, the head of a Chicago crime organization, had hired the three

perpetrators to kill Pat Redmond because Cruz wanted an interest in Pat’s business

but Pat had rejected Cruz’s business offers. Id. at 7a. Cruz first offered Arnold

Merrill $10,000 to kill Pat, but Merrill refused him. Id. Cruz then flew Hooper and

Bracy to Phoenix from Chicago, where they lived, to carry out the crime.

Id.

Merrill assisted by driving Hooper and Bracy around Phoenix, including to collect

money from Cruz and to a gun store to obtain the murder weapons, letting Hooper

and Bracy stay at his home for a period of time, and giving Bracy directions to Pat’s

home. Id. at 7a–8a. Immediately after the murders, Hooper, Bracy, and McCall

went to Merrill’s home before Hooper and Bracy were driven to the airport to fly

back to Chicago. Id. at 8a.

The day after the murders, McCall admitted to two women, Valinda Lee

Harper and Nina Marie Louie (whom Merrill had introduced to Hooper and Bracy

7

before the murders and in whose apartment the killers had been before leaving to

commit the murders), how the murders had been committed, stating that it was a

“contract … hit, not a robbery,” and that Hooper had slashed Pat’s throat and shot

Marilyn. Id. McCall also described the crimes to Merrill. Id. On January 1, 1981,

Harper called the police and told them Hooper, Bracy, and McCall had committed

the murders. Id. at 8a–9a.

Marilyn initially told a responding police officer that “[t]hree black men came

in a robbed us,” but then stated that two of the intruders were black and one was

white. Id. She also told police that one of the black males wore a tan leather jacket

with dark pants. Id. at 8a. Fifty-three days after the murders, Marilyn flew to

Chicago where she identified Hooper and Bracy in lineups. Id. at 9a.

B. Trial.

Hooper and Bracy were each charged with conspiracy to commit first-degree

murder, two counts of first-degree murder, one count of attempted first-degree

murder, three counts of kidnapping, three counts of armed robbery, and one count of

first-degree burglary. Id. They were tried together. Id.

As the court below observed, “[t]he prosecution presented overwhelming

evidence of Hooper’s guilt.”

Id. at 10a. “Marilyn provided very specific details

about her lengthy encounter with the murderers,” and identified Hooper, Bracy, and

McCall as the killers. Id. “Her in-court identifications were certain, and she did not

waiver when the defense suggested she could be mistaken.” Id.

8

Louie testified that she met Hooper and Bracy in December 1980 and that

she overheard Bracy say that “he had a big job to do” for $50,000 and that “it wasn’t

going to be very pretty.” Id. Hooper, Bracy, and McCall were at her apartment on

New Year’s Eve armed with guns, and Bracy said that they had “some business to

take care of.” Id. at 10a–11a. The next day, Louie testified, McCall came to her

apartment and told her Marilyn was shot in the back of the head (not the face as a

newscaster stated), that the victims were taped rather than tied up, and that only

Pat’s throat was slashed. Id. at 11a. He also said that all three men wore gloves

and that Hooper had shot Marilyn and cut Pat’s throat. Id. Louie’s testimony was

corroborated by receipts found in McCall’s vehicle for the purchase of three pairs of

gloves and tape the day of the murders, testimony that a vehicle matching McCall’s

was seen near the Redmond home around the time of the murders, and testimony

that Harper called police the day after the murders and implicated Hooper, Bracy,

and McCall. Id.

Another witness, George Campagnoni, testified that on New Year’s Eve he

saw Merrill give Bracy a piece of paper with directions to the Redmond home and

Pat’s business and that he saw Hooper, Bracy, and McCall later that evening at

Merrill’s home with jewelry, “some of which looked very similar to a ring and watch

owned by [Pat] Redmond.” Id.

Merrill also testified. He explained Cruz’s plan to have Redmond killed and

said he refused Cruz’s offer to kill Redmond for $10,000. Id. He described Hooper

and Bracy’s first trip to Phoenix in early December, during which he saw Cruz give

9

the pair a stack of cash, took Hooper and Bracy to a gun shop where they picked up

weapons (including a knife that looked like a knife found at the crime scene), and

was present for Hooper’s attempt to shoot Redmond from a car window which

Merrill foiled by turning the vehicle. Id. Merrill also testified that, on December

30, he picked up Hooper and Bracy from the Phoenix airport at Cruz’s direction and

verified the addresses for Redmond’s home and business. Id. at 12a.

Merrill testified that Hooper, Bracy, and McCall came to his home at about

8:30 p.m. on New Year’s Eve and had items (including a watch, ring, and gun

holster) that may have come from the Redmond home. Id. McCall told him several

days later that McCall, Hooper, and Bracy had committed the crimes at the

Redmonds’ home. Id.

As the court below recognized, “Merrill was severely impeached.” Id. The

jury heard that the State gave him immunity for his involvement in the Redmond

crimes, including the first-degree murders of Pat and Helen, for which he could

have received the death penalty, and immunity for other, unrelated crimes. Id.

The jury thus “knew Merrill had a very strong personal stake in the case and

motive to lie.” Id. The jury also heard that Merrill received special treatment from

the State: he was “placed in a more inmate-friendly, out-of-state prison as part of

his deal” 1; the State’s investigator “did not immediately arrest him in New York

0F

_______________

1 Merrill’s deal involved pleading guilty to an unrelated burglary and theft for an 8-year sentence.

Id. at 605 n.3.

10

even though he was wanted for first-degree murderer”; and the State’s investigator

“allowed him to travel unrestrained from New York to Arizona despite being a

wanted murder” and “took Merrill out of jail for a conjugal visit.” Id. The defense

also showed that the State’s investigator had stopped his tape-recorded interview

with Merrill more than 20 times, and neither Merrill nor Ryan could plausibly

explain why. Id. The defense argued the investigator used the breaks to coach

Merrill on what to say. Id.

The defense cast additional doubt on Merrill’s credibility to showing that “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.’” Id.

The defense impeached Merrill even further by emphasizing inconsistencies

between his testimony and his prior statements:

For example: Merrill testified that he did not get together with

Campagnoni to make up a story, but Merrill had previously stated that

he told Campagnoni to deny to the police that any black individuals

had been at his home; Merrill testified that the bullets he threw away

in a canal could not have been the same type that killed Redmond, but

he previously testified that they could have been; and he testified that

he was not the leader of a criminal group, which contradicted his prior

testimony. Parts of Merrill's testimony also contradicted other

evidence, giving the jury even more reasons to disbelieve him. For

example, Kleinfeld testified that Merrill picked out the knife at the

Gun Trader, not Hooper, and Campagnoni testified that Merrill gave

11

Bracy .38 caliber ammunition on New Year's Eve, but Merrill denied

giving any bullets to Hooper, Bracy, or McCall.

Id. at 12a–13a.

In addition to these witnesses, the State presented other evidence, including

employees of Pat Redmond’s business who saw Cruz touring the company in 1980; a

pilot whom Cruz hired on occasion who testified that in 1980 he heard Cruz say he

wanted to take over a printing business and would have to “get rid of” an

uncooperative business partner; a witness who purchased two tickets at Cruz’s

direction from Phoenix to Chicago for a flight on New Year’s Eve and delivered

them to Merrill’s home; telephone records that supported that Hooper and Bracy

were in Phoenix during the murders, rather than Chicago; and evidence from which

the jury “could infer that Hooper possessed both the murder weapon and the knife

that was used to slash Redmond’s throat.” Id. at 13a.

The jury found Hooper and Bracy guilty of all charged counts.

After

conducting the necessary sentencing-related hearings, the trial court concluded that

Hooper should be sentenced to death for the two first-degree murder convictions.

Id. at 16a–17a.

C. Direct Appeal and Hooper’s Brady claim.

Among other claims, Hooper presented on direct appeal a claim that the

State violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose benefits

to Merrill.

Pet. App. 54a.

Hooper and Bracy both had moved to vacate the

judgment after trial based on the non-disclosure and, after conducting hearings on

the motion, the trial court found that the State had never disclosed that:

12

1) Prior to trial, Dan Ryan, county attorney investigator, made car

payments for Arnold Merrill's wife, Cathy Merrill, totaling over

$800.00 for which Ryan received only partial reimbursement;

2) Mrs. Merrill also received approximately $3,000 from the Maricopa

County Attorney's Protected Witness Program;

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. The trial court denied the motion “because independent reliable evidence tied

[Hooper] to the conspiracy and to the murders and because the undisclosed evidence

was cumulative.” Id.

The Arizona Supreme Court affirmed, finding that although the benefits

Merrill received were exculpatory and never disclosed, they were not material. Id.

at 55a. The state appellate court noted that, under United States v. Agurs, 427 U.S.

97, 112 (1976), because Hooper had specifically requested discovery of any benefits

received by state witnesses in exchange for their testimony, the benefits were

material if “the suppressed evidence might have affected the outcome of the trial.”

Id. at 55a. The court concluded that the undisclosed benefits did not meet this

standard of materiality.

First, the additional benefits were cumulative “in view of the great wealth of

impeaching evidence against Arnold Merrill showing both bad character and bias,”

and thus the court did “not believe the disclosure of benefits equaling several

thousand dollars would have had any effect upon the outcome of the trial.” Id. at

56a.

Second, and in the state court’s view “more importantly,” “the strong

eyewitness testimony of Mrs. Redmond in combination with independent evidence

13

of [Hooper’s] participation in the conspiracy is more than sufficient to uphold the

conviction.” Additionally, the court found that “Arnold Merrill’s testimony in the

instant case was merely corroborative and not pivotal,” the undisclosed

impeachment of Merrill “had no effect upon the key testimony of Marilyn

Redmond,” and other witnesses, such as Campagnoni, provided important

testimony linking Hooper to the conspiracy. Id. Thus, the court did “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.

D. Habeas corpus proceedings.

Hooper subsequently filed a petition for writ of habeas corpus asserting,

among other claims, the Brady violation based on the nondisclosed benefits to

Merrill. Pet. App. 20a. The district court determined that the clearly established

federal law for purposes of 28 U.S.C. § 2254(d)(1) was Brady, Agurs, and United

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

Id.

The court found that the Arizona

Supreme Court’s decision that the Merrill benefits were not material was not

contrary to or an unreasonable application of that precedent. Id. Hooper appealed.

The Ninth Circuit affirmed the district court’s denial of habeas relief. First,

the court concluded that because the Arizona Supreme Court issued its decision in

Hooper’s case on June 10, 1985, and Bagley was decided later, on July 2, 1985,

Bagley was not clearly established at the time of the state court decision and the

14

district court therefore erred in relying on it. Pet. App. 22a. The court reached this

conclusion although the State appeared to concede that Bagley was clearly

established by citing to it in its briefing. Id.

Next, addressing Hooper’s Brady claim under 28 U.S.C. § 2254(d)’s

relitigation bar, the court of appeals noted that Agurs listed three categories of

nondisclosure 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,’’ [Agurs,] 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.

Id. at 23a. Hooper’s case involved the second category and, while Agurs created

different materiality standards for categories one and three, it did not create a

specific materiality standard for category two, but explained that “material” means

that “the suppressed evidence might have affected the outcome of the trial.” Id.

(quoting Agurs, 427 U.S. at 104). In other words, under the clearly established

federal law applicable at the time of the Arizona Supreme Court’s decision in

Hooper’s case, to prove the materiality element of a Brady claim the defendant had

to show that the suppressed evidence might have affected the outcome of the trial.

Id.

The Ninth Circuit first concluded that the Arizona Supreme Court’s finding

that the Merrill benefits were not material was not an unreasonable application of

clearly established law under § 2254(d)(1). Id. at 24a. The Arizona court properly

15

found that Marilyn’s testimony was the key to Hooper’s convictions and that

Merrill’s testimony was “merely corroborative and not pivotal.” Id. Marilyn was an

eyewitness and certain in her identifications, and she had had ample time to view

the men while they were in her home. Id. Moreover, the testimony of numerous

other witnesses strongly supported Hooper’s guilt. Id. It was also reasonable for

the state court to determine that the Merrill benefits would not have affected the

jury’s view of his credibility because he was strongly impeached with evidence that

he was a “known liar, self-interested criminal, and drug dealer and user,” in

addition to evidence that he had lied to the police and had a strong motive to lie

about the crimes. Id. Given the overwhelming evidence of Hooper’s guilt and the

unlikelihood that the benefits would have changed the jury’s view of Merrill, the

Arizona Supreme Court reasonably concluded that Hooper failed to show that the

benefits might have affected the outcome of his trial. Id. Thus, the court below was

barred from reviewing Hooper’s claim de novo by § 2254(d)(1). Id.

The court of appeals likewise rejected Hooper’s argument that the state

court’s decision involved an unreasonable determination of fact under § 2254(d)(2).

Id. at 24a–25a.

The court concluded that the Arizona Supreme Court’s

determination that the undisclosed benefits were cumulative impeachment was a

reasonable determination based on the defense’s severe impeachment of Merrill at

trial. Id. at 25a. The additional benefits would have made it “more likely that he

was biased and motivated to life,” but it was “already firmly established that

Merrill was biased and motivated to life.” Id. Finally, the court below found that,

16

even if reviewed de novo, Hooper’s Brady claim would fail “because there is no

reasonable probability that the trial outcome would have been different had the

evidence been disclosed.” Id. Hooper now asks this Court to review the Ninth

Circuit’s decision.

17

REASONS FOR DENYING THE PETITION

This Court grants certiorari “only for compelling reasons,” Sup. Ct. R. 10, and

Hooper presents none. In particular, Cruz has not established that the court of

appeals created a circuit split or “decided an important federal question in a way

that conflicts with relevant decisions of this Court.” Id. 10(a), (c). Even if Cruz’s

arguments were correct (and, as demonstrated below, they are not), at most he

contends only that the court below misapplied “a properly stated rule of law” and

made “erroneous factual findings,” reasons for which certiorari is “rarely granted.”

Id. 10. Because the decision below correctly applied Greene v. Fisher, 565 U.S. 34

(2011), and correctly determined that the Arizona Supreme Court reasonably found

that the undisclosed benefits were not material, this Court should deny certiorari.

I.

BECAUSE BAGLEY WAS DECIDED AFTER THE ARIZONA SUPREME COURT

ISSUED ITS OPINION ADJUDICATING THE MERITS OF HOOPER’S CLAIM, IT WAS

NOT CLEARLY ESTABLISHED FEDERAL LAW UNDER § 2254(D)(1).

Hooper’s habeas petition is governed by AEDPA; thus he was not entitled to

habeas relief unless he established that the Arizona Supreme Court’s decision on

his Brady claim was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by” this Court, 28 U.S.C. § 2254(d)(1), or

“based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding,” id. § 2254(d)(2). “[C]learly established

Federal law” under § 2254(d)(1) refers to “this Court’s precedents as of ‘the time the

state court renders its decision.’” Cullen v. Pinholster, 563 U.S. 170, 182 (2011)

(quoting Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003)).

18

In Greene v. Fisher, 565 U.S. 34 (2011), this Court addressed and rejected

almost the very argument Hooper makes here—whether a decision by this Court

issued after the state court decision that adjudicated a petitioner’s federal habeas

claim on the merits, but before the petitioner’s case became final, is “[c]learly

established” under § 2254(d)(1).

There, the petitioner argued that Gray v.

Maryland, 523 U.S. 185 (1985), which was decided three months after the last

state-court adjudication on the merits of his habeas claim, was clearly established

because it was decided before his case became final. Greene, 565 U.S. at 38–40.

This Court rejected the petitioner’s contention that “because finality marks the

temporal cutoff for Teague 2 purposes, it must mark the temporal cutoff for ‘clearly

1F

established Federal law’ under AEDPA.” Id. at 39. The Court noted that AEDPA

did not codify Teague and that Teague does not alter AEDPA’s plain meaning. Id.

This Court thus affirmed that § 2254(d)(1) requires federal courts to “measure statecourt decisions ‘against this Court’s precedents as of the time the state court renders

its decision.’” Id. at 38 (quoting Pinholster, 563 U.S. at 182) (emphasis in original).

Notwithstanding Greene’s bright-line, temporal rule, Hooper argues that

Bagley, decided over a month after the Arizona Supreme Court’s decision denying

his Brady claim on the merits, was clearly established at the time of the state court

rendered its decision because the state court mandate had yet to issue. Pet. at 11–

_______________

Teague v. Lane, 489 U.S. 288 (1989) (prisoner seeking federal habeas relief may rely on new

constitutional rules of criminal procedure announced before conviction became final).

2

19

14. This argument is an indistinguishable variation of the argument this Court

rejected in Greene. Hooper contends that a state court does not actually “render its

decision” on the date its decision is issued, but only later, when a mandate issued.

Id. at 13. His interpretation tortures the plain meaning of the phrase “renders its

decision” and is not meaningfully different from the argument this Court rejected in

Greene which asserted that a state court decision is not “rendered” until it becomes

final. Hooper’s interpretation of the phrase “renders its decision” would also lead to

inconsistent application of § 2254(d)(1) depending on particularities of state

appellate court procedure. Greene’s bright-line rule, in contrast, makes clear that

“[c]learly established Federal law” consists of the law existing on the date the state

court issues its adjudication on the merits of the claim.

Moreover, as in Greene, Hooper’s “predicament” is “one of his own creation.”

565 U.S. at 41. Hooper notes that, after the Arizona Supreme Court published its

decision on June 2, 1985, he filed a rehearing petition, which was denied on August

20, 1985, with Bagley being decided in the interim. Pet. at 14. But Hooper does not

contend—nor does the record reflect—that he cited Bagley in his rehearing petition,

or otherwise sought to bring that decision to the Arizona Supreme Court’s attention

while his rehearing petition was pending.

Thus, like the petitioner in Greene,

Hooper forewent an “obvious means of asserting his claim,” and instead asks this

Court “to provide him relief by interpreting AEDPA in a manner contrary to both its

text and [this Court’s] precedents.” 565 U.S. at 41. This Court should reject his

request to do so, and deny certiorari.

20

II.

THE ARIZONA SUPREME COURT

REASONABLY

UNDISCLOSED BENEFITS WERE NOT MATERIAL.

CONCLUDED

THAT

THE

Whether reviewed under the Agurs “might have affected the outcome”

standard, or Bagley’s “undermines confidence in the outcome of the trial” standard,

the court of appeals correctly determined that the Arizona Supreme Court

reasonably concluded that the undisclosed benefits were not material.

Hooper

argues to the contrary based on his assertions that Merrill was the State’s key

witness, Marilyn’s testimony was unreliable, and the undisclosed benefits were not

cumulative. Pet. at 15–22. However, he fails to demonstrate that the state court’s

materiality

determination

was

“beyond

any

possibility

for

fairminded

disagreement.” Shinn v. Kayer, 592 U.S. --- (2020) (per curiam) (quoting Harrington

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

In finding the undisclosed benefits immaterial, the state court noted that “the

strong eyewitness testimony of Mrs. Redmond in combination with independent

evidence of defendant’s participation in the conspiracy is more than sufficient to

uphold the convictions.”

Pet. App. 56a.

The court concluded that Marilyn’s

testimony was “particularly strong because Mrs. Redmond had ample opportunity

to view all three men in her home,” and that “evidence apart from that presented

through Merrill 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. Thus, the state court found, Merrill’s testimony “was

merely corroborative and not pivotal.” Id.

21

Hooper argues that these findings were unreasonable because Merrill—not

Marilyn Redmond—was the State’s key witness and that her testimony was

unreliable.

Pet. at 16–20.

He first asserts that Merrill was the State’s “key”

witness, referring to the number of times the prosecutor and the court of appeals

referred to Merrill’s testimony. Id. at 16–17. But the fact that Merrill was an

important witness does not by itself mean that his testimony was not “merely

corroborative and not pivotal.” Hooper fails to acknowledge the court of appeals’

finding that the State presented overwhelming evidence of his guilt apart from

Merrill’s testimony. See Pet. App. 24a; see also id. at 10a–11a, 13a (detailing trial

evidence).

Moreover, while Merrill provided testimony as a member of the

conspiracy with inside knowledge of what occurred, the Arizona Supreme Court was

reasonable to conclude that Marilyn’s testimony as both a victim and eyewitness

who identified Hooper, Bracy, and McCall as the men who entered her home and

committed the crimes “was particularly strong.” Pet. App. 56a.

Hooper also argues that the state court unreasonably concluded that

Marilyn’s testimony was strong because her initial descriptions of the assailants

were inconsistent and her identifications “highly suspect.” Pet. at 17–20.

He fails

to acknowledge, however, that “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

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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.

Pet. App. At 10a. When the defense pointed out the inconsistencies between her

testimony and her prior statements, Marilyn “testified that she did not recall

making the prior statements or that they were wrong or had been misinterpreted.”

Id.

Furthermore, Louie’s testimony corroborated Marilyn’s descriptions of the

men’s clothing. Id. Given this record it was reasonable for the Arizona Supreme

Court to characterize Marilyn’s testimony as “strong” and conclude that it was

“particularly strong because Mrs. Redmond had ample opportunity to view all three

men in her home.” Id. at 55a.

Marilyn’s identification of Hooper and Bracy as two of the three intruders

was also corroborated by multiple other witnesses independent of Merrill.

For

example, Louie testified that McCall told her the day after the murders that he,

Hooper, and Bracy had committed the crimes, and Campagnoni testified that he

saw Hooper and Bracy at Merrill’s home on New Year’s Eve, saw Merrill give Bracy

a piece of paper with directions to the Redmond home, and saw Hooper, Bracy, and

McCall later than night with jewelry, “some of which looked very similar to a ring

and watch owned by Redmond.” Id. at 11a. Given Marilyn’s eyewitness testimony

based on interacting with the killers, along with evidence that corroborated her

testimony and established Hooper’s participation, the Arizona Supreme Court

reasonably characterized Marilyn as the State’s key witness and Merrill’s testimony

as corroborative rather than pivotal.

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Finally, Hooper challenges as unreasonable the Arizona Supreme Court’s

finding that the undisclosed benefits to Merrill were cumulative to the extensive

impeachment evidence presented to the jury. Petition at 20–22. As the court below

observed, the defense portrayed Merrill “as a serial liar with strong incentives to

fabricate his testimony against Hooper and Bracy to avoid a potential life sentence

for his own involvement in the Redmond crimes and to continue to receive favorable

treatment from the State.” Pet. App. At 25a. While the undisclosed 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 … it was already

firmly established that Merrill was biased and motivated to lie.”

Id.

The

reasonableness of the state court’s finding was supported by Ninth Circuit

decisions. See Gentry v. Sinclair, 705 F.3d 884, 903 (9th Cir. 2013) (undisclosed

evidence that the state intervened with parole board to secure witness’s parole

cumulative because witness was substantially impeached at trial with evidence of

“many past crimes, including his conviction for perjury” and “his extensive history

of using false names”); Barker v. Fleming, 423 F.3d 1085, 1096–97 (9th Cir. 2005)

(undisclosed convictions cumulative to evidence portraying witness as a “serial liar,”

a “career criminal desperate to escape from jail time,” and had made a deal with the

state on multiple occasions).

Hooper further asserts that the undisclosed benefits would have caused “the

jury to conclude that Mrs. Redmond’s wavering identification of her assailants was

the result of improper investigatory tactics and prosecutorial influence rather than

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independent memory,” and “could have materially affected critical stages of [his]

trial.”

Petition at 21. Hooper fails to support these speculative suggestions with

any evidence from the record. His assertion regarding Marilyn’s identifications fail

to acknowledge the other evidence (independent from Merrill’s testimony)

corroborating her identification of Hooper and Bracy and he does not explain how

nondisclosure of the Merrill benefits “could” have affected his trial. Thus, Hooper

fails to demonstrate that the Arizona Supreme Court’s determination that the

Merrill benefits were cumulative impeachment evidence was unreasonable.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

MARK BRNOVICH

Attorney General

of Arizona

JEFFREY L. SPARKS

Acting Chief Counsel for the

Capital Litigation Section

(Counsel of Record)

JOSEPH A. KANEFIELD

Chief Deputy and

Chief of Staff

OFFICE OF THE ARIZONA

ATTORNEY GENERAL

Capital Litigation Section

2005 N. Central Ave.

Phoenix, AZ 85004

(602) 542–4686

CLDocket@azag.gov

BRUNN W. ROYSDEN III

Solicitor General

Counsel for Respondents

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