MEMORANDUM OF DECISION AND ORDER
RANER C. COLLINS, Chief District Judge.
The Court of Appeals for the Ninth Circuit remanded this matter for consideration on the merits of Petitioner's claims alleging ineffective assistance of counsel during trial and on direct appeal. See Greenway v. Schriro, 653 F.3d 790, 797-800 (9th Cir. 2011). The parties filed supplemental briefs, and Petitioner requested an evidentiary hearing. Petitioner also filed a motion to stay these proceedings so that he may exhaust a new claim in state court. After fully considering the briefs and arguments, the Court determines that Petitioner is not entitled to habeas relief. The Court further declines to stay these proceedings.
On March 28, 1988, a Porsche 944 belonging to Frank and Lili Champagne was found abandoned and burned. When authorities went to the Champagne home to investigate, they discovered the bodies of Lili Champagne and her daughter, Mindy Peters. Each had been shot to death.
Petitioner and co-defendant Chris Lincoln were charged and tried separately on two counts of first degree murder and one count each of first degree burglary, armed robbery, theft by control, and arson of an unoccupied structure. A jury convicted Petitioner of all counts on March 17, 1989. Pima County Superior Court Judge William Scholl sentenced him to death for each murder and various prison terms for the other counts. The Arizona Supreme Court affirmed. See State v. Greenway, 823 P.2d 22 (Ariz. 1991). Petitioner did not seek certiorari in the United States Supreme Court.
Following unsuccessful state post-conviction-relief proceedings, Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This Court ultimately denied relief. (Doc. 149.) On appeal, the Ninth Circuit affirmed, except as to claims alleging ineffective assistance of counsel (IAC) at trial and on direct appeal. 653 F.3d at 793. Specifically, the court determined that the state court's finding of waiver as to Petitioner's trial and appellate IAC claims failed to constitute an adequate and independent procedural bar to federal review and remanded for this Court to consider the claims on the merits. Id. The parties completed supplemental briefing in February 2013. (Docs. 169, 177, 182.) One month later, Petitioner moved to stay these proceedings pending exhaustion of a juror misconduct claim. (Doc. 183.)
STANDARD FOR HABEAS RELIEF
Although this case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), none of the IAC claims discussed herein were adjudicated on the merits by the state court. Therefore, the deferential standard for relief set forth in 28 U.S.C. § 2254(d) is inapplicable, and this Court reviews Petitioner's claims de novo. See Cone v. Bell, 556 U.S. 449, 472 (2009); Greenway, 653 F.3d at 800.
To prevail on an IAC claim, a petitioner must show that counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). To prove deficient performance, a defendant must overcome "the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. at 689. To demonstrate prejudice, a petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
A court need not address both components of the Strickland inquiry, or follow any particular order. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, without evaluating counsel's performance, that should be done. Strickland, 466 U.S. at 697.
I. IAC at Trial
Petitioner was represented at trial by Robert Benedict, against whom Petitioner alleges seven separate grounds of ineffectiveness as well as prejudice from their combined effect. Specifically, Petitioner asserts that Benedict failed to ensure adequate jury voir dire, present a reasonable theory of defense, adequately investigate and impeach Bryan Mize and Anthony Schmanski, present exculpatory evidence, adequately investigate and present a Christensen impulsivity defense, and request a lesser-included-offense instruction. As to some of these allegations, Respondents assert they are outside the scope of the Ninth Circuit's limited remand. The Court addresses each in turn.
A. Voir Dire
Petitioner argues that Benedict's failure to use a juror questionnaire and to ensure that the trial court asked each of defense counsel's proposed questions was ineffective and led to the failure of a seated juror to disclose relevant information concerning her fitness to serve. Respondents contend that the claim, as now formulated, was not raised in state court and is thus not within the scope of the Ninth Circuit's remand.
The Ninth Circuit remanded this matter for consideration on the merits of claims that were presented but improperly found waived by the state court. In state court, in an addendum to a request to file an amended state post-conviction petition, Petitioner asserted summarily that counsel was ineffective for not requesting use of a juror questionnaire. However, he did not allege prejudice from this purportedly deficient representation nor complain about any other aspect of counsel's performance during voir dire. (Doc. 177-1 at 31.) Petitioner's federal habeas petition mirrors his state pleading. (Doc. 62 at 16.) It was not until filing his supplemental brief following the Ninth Circuit's remand that Petitioner for the first time alleged that counsel's deficient performance during voir dire led to the seating of a biased juror.
The Court concludes that Petitioner's new allegations concerning the seating of a specific juror effectively state a separate claim of counsel ineffectiveness. Petitioner concedes that the factual basis underlying this claim was known at the time he filed his federal habeas petition. (Doc. 169 at 22 n.24.) Pursuant to Rule 2(c) of the Rules Governing Section 2254 Cases, he was obligated to specify in his habeas petition all grounds for relief, as well as the facts supporting each of these grounds. See Mayle v. Felix, 545 U.S. 644, 661 (2005) (observing that Rule 2(c) requires pleading "separate congeries of facts" in support of each ground for relief); Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977) (observing that "notice" pleading in habeas is insufficient and that petition "is expected to state facts that point to a real possibility of constitutional error'") (quoting Advisory Committee Note to Rule 4, Rules Governing Section 2254 Cases). In Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994), the Ninth Circuit held that a traverse "is not the proper pleading to raise additional grounds for relief" and that issues raised for the first time in the petitioner's traverse were not properly before the district court.
Here, the Court permitted Petitioner to file a supplemental brief to address the merits of the trial and appellate ineffectiveness claims previously found to be procedurally defaulted. This was an opportunity to present additional argument and legal authority in support of existing claims, "not to raise substantively new issues or claims." Id. Petitioner has not sought amendment to add any of the new allegations contained in his supplemental brief. See generally Felix, 545 U.S. at 662-64 (holding that amended claims filed after expiration of AEDPA's limitation period must relate back to a claim raised in the original timely filed petition). Because Petitioner failed to include the supplemental brief's new factual allegations concerning voir dire in his federal habeas petition, these allegations are not properly before the Court.
Alternatively, assuming Petitioner's new allegations do not constitute a separate claim, the Court concludes that consideration of the expanded voir-dire-related ineffectiveness claim would not be outside the scope of the Ninth Circuit's remand. See Herrington v. Cnty. of Sonoma, 12 F.3d 901, 904 (9th Cir. 1993) (noting that "rule of mandate allows a lower court to decide anything not foreclosed by the mandate"); Lindy Pen Co., Inc. v. Bic Pen Corp., 982 F.2d 1400, 1404 (9th Cir. 1993) (observing that an "order issued after remand may deviate from the mandate... if it is not counter to the spirit of the circuit court's decision"). The Ninth Circuit directed this Court to consider the merits of the claims raised but not considered by the state court. Petitioner raised in state court a claim alleging ineffectiveness from counsel's failure to request a juror questionnaire. Thus, assuming Petitioner's new allegations do not constitute a separate ineffectiveness claim, consideration of the expanded claim would not be "counter to the spirit of the circuit court's decision." Lindy Pen Co., 982 F.2d at 1404. Accordingly, as an alternative ruling, the Court also addresses Petitioner's expanded claim on the merits.
Prior to trial, Benedict moved for individual or "small group" voir dire and filed two sets of proposed voir dire questions. (ROA at 369, 378, 389.) The questions included whether any juror had ever been the victim of a crime. ( Id. at 392.) On the first day of jury selection, the trial court denied the motion for individual voir dire, explaining that the jurors would be told to approach the bench if they had anything to state that might influence or bias other members of the venire panel. (RT 3/13/89 at 3.) The court subsequently told the panel about the role of bench conferences during voir dire and encouraged the jurors to err on the side of approaching the bench during questioning if any had concerns about speaking publically on any matter. ( Id. at 8-9.)
During voir dire the court asked inter alia whether there was anything about the nature of the case that would make it difficult to serve as a juror, whether any juror had ever been a witness or testified in a criminal case, whether any juror had ever been a witness to a criminal act where the police came out and took a statement, and whether there was anyone who for any reason or based on a question not asked could not sit as a fair and impartial juror. ( Id. at 15-16, 55-56; RT 3/14/89 at 24.) Before the conclusion of questioning, the court twice asked counsel if there were any particular questions either side wanted asked of the panel. (RT 3/14/89 at 3, 24.) Benedict requested inquiry into military service and membership in public interest groups, but otherwise believed that the court "had touched upon all of my questions." ( Id. at 3.)
During voir dire, juror Virginia Coker remained silent throughout initial questioning, indicating negative responses to the court's questions. Near the conclusion of voir dire, in response to the court asking if anyone had affirmative answers to the previously asked questions, Coker asked to approach the bench and stated that she had been a witness to a domestic violence incident in her home involving her son and had called police. ( Id. at 18.) She assured the court this would not affect her ability to serve as a juror, and she ultimately sat on the jury.
During state post-conviction proceedings, Coker signed a declaration in December 1994 stating that she had been the "victim of a violent crime" in the early 1980s and had testified against her attacker, George Hauss, who was convicted in 1982. (Doc. 169-1 at 113.) Coker provided no details about the incident but, according to an appellate decision affirming Hauss's convictions, Hauss broke into the homes of ten different female victims, whom he bound, gagged, and terrorized. State v. Hauss, 688 P.2d 1051, 1053 (Ariz. App. 1984). He was known as the "foot fetish" rapist because he almost always "kissed, fondled and/or masturbated against the victims' feet." Id. Hauss was convicted of three counts of second-degree burglary, one count of aggravated assault, nine counts of kidnapping, five counts of sexual abuse, three counts of sexual assault, one count of attempted sexual abuse, and six counts of first-degree burglary. Id. at 1052-53. With respect to Coker specifically, the indictment against Hauss indicates that he was charged with committing first-degree burglary with a knife, kidnapping, and sexual assault by engaging in non-consensual sexual intercourse. (Doc. 182-1 at 76-77.)
Petitioner argues that the information about Coker likely would have been discovered had Benedict asked to use a juror questionnaire or ensured that the court asked his proposed question about whether any juror had ever been the victim of a crime. He further asserts that had the court learned that Coker had been the victim of a violent crime seven years before Petitioner's trial, she would have been removed from the jury for cause because "it would be nearly impossible for someone who was a victim of violent crime to be able to hear a case involving violence against two women and remain impartial and unbiased." (Doc. 169 at 24.) The Court disagrees.
The conduct of voir dire "will in most instances involve the exercise of a judgment which should be left to competent defense counsel." Gustave v. United States, 627 F.2d 901, 906 (9th Cir. 1980) (finding no ineffective representation where attorney did not request voir dire questions requested by his client). Counsel have wide latitude in making tactical decisions and "[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689.
Here, it was not objectively unreasonable for counsel to conclude that the questions asked by the court were sufficient to elicit relevant information concerning the jurors' experiences with crime. The judge asked whether any juror had ever been a witness or testified in a criminal case and whether any juror had ever witnessed a criminal act where the police came out and took a statement. Either of these questions should have elicited the information about Coker's experience, and she further had the opportunity at the conclusion of voir dire to reveal that she had been the victim of a violent crime and had previously testified in court. That she chose not to disclose this information does not support a claim of ineffectiveness against trial counsel for failing to request use of a juror questionnaire or to ask the judge to pose another question about jurors' experiences with crime. See Hovey v. Ayers, 458 F.3d 892, 910 (9th Cir. 2006) (rejecting claim of deficient performance premised on counsel's general failure to participate actively in voir dire); Wilson v. Henry, 185 F.3d 986, 991 (9th Cir. 1999) (finding no ineffectiveness where counsel failed to focus on client's criminal history during voir dire and relied on jurors's statements that they would be fair and follow the law). To the extent Petitioner suggests ineffectiveness from Benedict's failure to challenge Coker for cause, the Court again finds no support for such a claim. Nothing in the record of the voir dire proceedings would have alerted a reasonable attorney to question Coker's veracity or impartiality.
Nor has Petitioner shown prejudice. First, Petitioner can only speculate that the trial court would have permitted use of a questionnaire or asked additional crime-related questions at Benedict's request, or that either of these actions would have prompted Coker to reveal her experience as a crime victim. Second, to the extent Coker's impartiality bears on the question of prejudice for the specific deficient performance alleged here, the bare fact that Coker was the victim of a crime does not establish partiality or bias per se. See Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir. 1990) (noting that juror bias should be presumed only in "extreme" or "extraordinary" cases). The evidence proffered by Petitioner establishes that Coker testified against her assailant in 1982, seven years prior to Petitioner's trial. Nothing in Coker's declaration indicates that she was biased against Petitioner or that her experience was so similar to that of the victims in this case that there was "potential for substantial emotional involvement." Id. (internal citation omitted); cf. United States v. Eubanks, 591 F.2d 513, 516-17 (9th Cir. 1979) (presuming bias in heroin conspiracy trial where juror's sons imprisoned for heroin-related crimes). For these reasons, the Court finds no prejudice from counsel's alleged deficiencies during voir dire. See Fields v. Brown, 431 F.3d 1186, 1199 (9th Cir 2005) (finding no prejudice from failure to ask follow-up questions concerning past assault on seated juror's wife where juror was not biased).
B. Theory of Defense
Petitioner argues that Benedict failed to present a reasonable theory of defense in his opening statement and closing argument and that he should have pursued a Christensen defense. Respondents contend that the "closing argument" and Christensen allegations were never presented in state court and are outside the scope of the Ninth Circuit's remand. A review of the state pleadings supports Respondents' position. ( See, e.g., Doc. 177-1 at 26-31.) Although Petitioner asserted in his federal habeas petition that defense counsel failed to "present any coherent summary of a defense on behalf of Petitioner" or "to adequately investigate a potential Christensen defense" (Doc. 62 at 16-17), those specific allegations of ineffectiveness were not presented in any of Petitioner's state court post-conviction pleadings.
It thus appears that the closing argument and Christensen allegations fall outside the scope of the Ninth Circuit's mandate because neither are within the group of claims found waived by the state court. Nevertheless, other grounds may justify consideration of these claims. Since this Court's procedural bar ruling in July 2000, the law governing "cause and prejudice" to excuse a procedural default has changed significantly. In its ruling, the Court determined based on then-governing law that the ineffective assistance of post-conviction counsel could not constitute cause for any procedural default of Petitioner's habeas claims (either for claims the state court found waived or for claims, such as those alleged here, that were never raised in state court). (Doc. 65 at 10-11.) However, in Martinez v. Ryan, 132 S.Ct. 1309, 1315 (2012), the Supreme Court held that "[i]neffective assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance of trial." Assuming without deciding that reconsideration of this aspect of the Court's procedural bar ruling would not be "counter to the spirit of the circuit court's decision, " Lindy Pen Co., Inc., 982 F.2d at 1404, the Court will address on the merits the entirety of Petitioner's allegations concerning counsel's theory of defense. Cf. Detrich v. Ryan, No. 08-99001, 2013 WL 4712729 (9th Cir. Sep. 3, 2013) (en banc) (remanding to district court for reconsideration of procedurally defaulted IAC claims in light of Martinez ).
In his opening statement, Benedict told the jury that the case "is not really a what happened case, it is a who done it" and suggested that the murders could have been committed by one person, not two. (RT 3/14/89 at 63.) Anticipating the State's fingerprint evidence linking Petitioner to the rifle found in the vicinity of co-defendant Lincoln's home, Benedict asserted that such evidence "simply says that at some point in time Mr. Greenway may have handled that rifle." ( Id. at 64.) Benedict also criticized the expected testimonial evidence of statements made by Petitioner, telling the jury that such evidence is "very dangerous" because it depends on the accuracy of the person testifying, is "strained through human memory, " and is inaccurate and unreliable. ( Id. at 65.)
The evidence at trial established that Lili Champagne had been shot in the forehead between her eyes and in the back of her left knee. A pillow near Lili's body contained gunshot residue, and fabric particles consistent with the pillow's lining were found in her forehead wound. Lili's daughter, Mindy, was shot twice in the head; a small towel covered part of her face. A spent.22 shell casing was found in the victims' garage, and the home's entertainment equipment was missing.
A search of Petitioner's home uncovered the keys to the burned and abandoned Porsche. Searches of co-defendant Lincoln's and his mother's homes produced ammunition identical to that used in the homicides and a portable stereo belonging to the victims. In a storage shed used by Lincoln police found various pieces of the victims' stereo equipment as well as a.22 caliber rifle. Ballistics testing revealed that the shell casing found in the victims' garage had been chambered in the seized weapon. Petitioner's fingerprints were found on the stock of the rifle, on the outside driver door of the Porsche, and on some of the Champagnes' stereo equipment. Co-defendant Lincoln's fingerprints were found on the stock of the rifle, on the stolen car's passenger door, and on a stereo receiver.
A Sheriff's officer testified regarding operation of the murder weapon, which he described as a magazine-fed, bolt-action rifle. Individual bullets from the magazine are moved into the firing chamber by manually moving the bolt forward. Once a bullet is fired, "you then now have to take the bolt, pull it back, which ejects or throws out the spent bullet, throws it out on the ground... Then you have to take it, put it forward and drop the bolt back in place again" to put another bullet in the chamber ready for firing. (RT 3/14/89 at 125.)
The evidence at trial also established that Petitioner's sister, Sandra Weese, called police to report Petitioner's and Lincoln's involvement after seeing a publicized request for information concerning the victims and the Porsche. Weese had seen Petitioner the night before in a small white sports car and recognized the name of the victim, Mindy Peters. Several months before the murders, in late December 1987, Weese had lent Petitioner her car and later her son found Mindy's wallet under one of the car seats. According to Mindy's friend, Lisa Smolic, she and Mindy met Petitioner in December 1987 at a fast-food restaurant. They hung out for a while at his place, and he later drove them each home. She recalled that Mindy lost her wallet on this occasion and that Petitioner later returned it. Smolic also testified that Mindy and Petitioner were friendly and that they went together to a party in early 1988.
Following his arrest, Petitioner was placed in a jail cell with Anthony Schmanski. At trial Schmanski testified that in response to his asking Petitioner why he was in jail, Petitioner said, "Well, I just blew two people away." (RT 3/15/89 at 70.) When asked why, Petitioner responded that they had seen his face. According to Schmanski, Petitioner said that he went to the victims' house to burglarize it and that he stole a VCR, television, and Porsche.
Petitioner also made statements about the offense to a co-worker, Bryan Mize. Mize testified that on the morning before Petitioner's arrest, Petitioner offered to sell Mize an expensive car stereo and speakers that he told Mize were stolen from a Porsche. According to Mize, Petitioner said that he and a friend broke into the home of a girl with whom Petitioner had once gone out and driven home. Petitioner told Mize that they made sure the victims were in the same room, broke in through the garage, and took some stuff out of the house, including a VCR. Petitioner also told Mize that he shot the victims after sending his friend out of the room and, while pointing to his own forehead, said blood gushed out of the "older lady." Mize testified that Petitioner said he had been planning for two ...