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State v. Roseberry

Supreme Court of Arizona

July 27, 2015

STATE OF ARIZONA, Plaintiff,
v.
HOMER RAY ROSEBERRY, Defendant

On Review from the Superior Court in Yavapai County. The Honorable Celé Hancock, Judge. No. CR 20010177.

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor General, Lacey Stover Gard, Chief Counsel, Capital Litigation Section, Laura P. Chiasson and Jon G. Anderson, Assistant Attorneys General, Tucson, Attorneys for State of Arizona.

Matthew G. Newman, Newman Law Center PLLC, Parker, Attorneys for Homer Ray Roseberry.

David J. Euchner, Tucson, Attorney for Arizona Attorneys for Criminal Justice.

JUSTICE BERCH authored the opinion of the Court, in which CHIEF JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES BRUTINEL and TIMMER joined.

OPINION

Page 848

BERCH, JUSTICE.

[¶1] We granted review to determine whether Homer Ray Roseberry should receive a new penalty phase hearing based on his claim that his appellate counsel was ineffective for failing to timely raise the issue of an unconstitutional jury instruction. Because Roseberry was not prejudiced by the alleged deficiency in counsel's representation, the trial court did not abuse its discretion in denying his petition for post-conviction relief.

I. BACKGROUND

[¶2] In October 2000, Roseberry agreed to transport approximately one thousand pounds of marijuana in his motorhome for a drug cartel. State v. Roseberry, 210 Ariz. 360, 363 ¶ 4, 111 P.3d 402, 405 (2005). The cartel had Fred Fottler accompany Roseberry on the trip. Id. Roseberry and a friend concocted a scheme to steal the marijuana. Id. at 363 ¶ 5, 111 P.3d at 405. But instead of following the plan, Roseberry pulled the motorhome over, shot Fottler three times while he was sleeping, and dumped his body beside the road. Id. at 363 ¶ ¶ 5-7, 111 P.3d at 405.

[¶3] A jury found Roseberry guilty of first-degree murder and, after finding that he killed Fottler for pecuniary gain, see A.R.S. § 13-751(F)(5),[1] returned a verdict of death. Roseberry, 210 Ariz. at 364 ¶ ¶ 15-16, 111 P.3d at 406. Roseberry's convictions and sentences were affirmed on his automatic appeal to this Court. Id. at 373-74 ¶ ¶ 77-80, 111 P.3d at 415-16.

[¶4] In 2012, Roseberry filed a petition for post-conviction relief (" PCR" ), claiming, among other issues, that his appellate counsel was ineffective for failing to raise on appeal that the trial court improperly instructed the jury not to consider mitigation evidence unless the defense proved a causal nexus between the mitigation and the crime. The superior court denied the claim, finding the issue precluded because it could have been, but was not, raised on appeal. See Ariz. R. Crim. P. 32.2(a). The court further found that any prejudice caused by appellate counsel's failure to timely raise the issue on appeal was cured by this Court's independent review of Roseberry's convictions and sentences.

[¶5] We granted review to clarify that our independent review of Roseberry's death sentence considered all the mitigation evidence presented, without requiring a causal connection to the crimes, and we found it not sufficiently substantial to call for leniency. Roseberry therefore suffered ...


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