United States District Court, D. Arizona
V. Wake Senior United States District Judge.
the Court is Petitioner Homer Roseberry's Motion for
Evidentiary Development. (Doc. 57.) Respondents filed a
response in opposition to the motion and Roseberry filed a
reply. (Docs. 67, 68.) The motion is denied in part and
granted in part, as set forth herein.
Arizona Supreme Court, in State v. Roseberry, 210
Ariz. 360, 363, 111 P.3d 402, 405 (2005), summarized the
facts underlying Roseberry's convictions and sentences as
1997, Roseberry and his wife, Diane, met members of a
marijuana-smuggling ring known as the Pembertons. In late
1998 and early 1999, Roseberry was paid by the Pembertons to
transport marijuana in his motorhome from Arizona to
early October of 2000, Roseberry agreed to transport more
than 1, 000 pounds of marijuana. When Roseberry arrived in
Phoenix to pick up the load, the Pembertons informed him that
Fred Fottler would accompany him on the trip. Several large
duffle bags of marijuana were then loaded into the motorhome.
October 20, 2000, Roseberry set off from Phoenix. Pursuant to
a scheme he devised with his friend Charles Dvoracek,
Dvoracek traveled to Wickenberg, Arizona, where he was
supposed to intercept and “steal” the motorhome
and marijuana while Roseberry and Fottler were eating at a
Denny's restaurant. In the early morning hours of October
21, 2000, Dvoracek parked his truck on the side of the road
and waited for the motorhome to stop at Denny's. Instead
of stopping at the restaurant, however, Roseberry drove back
onto the highway and continued north toward his home in
followed the motorhome, which Roseberry soon pulled over onto
the shoulder of the road. As Dvoracek pulled in behind, he
heard two pops. Roseberry stepped out of the motorhome and
told Dvoracek that he had “shot the guy” the
Pembertons had sent to accompany him on the drug run.
shot Fottler in the back of the head. Fottler was still
making gurgling noises, so Roseberry returned to the
motorhome and shot him again. Roseberry and Dvoracek then
wrapped Fottler's body in a blanket and dumped it into
the gully on the side of the road.
Roseberry drove through Arizona, he threw his gun out the
window of the motorhome. Roseberry and Dvoracek stopped in
Kingman, Arizona, to remove other evidence of the crime. They
took a blood-stained sheet from the motorhome and threw it
over a fence. They also buried Fottler's wallet and moved
one of the duffle bags of marijuana from the motorhome to
Dvoracek's truck so Dvoracek could sell the drugs to
raise money in case it became necessary to bail Roseberry out
arrived at Roseberry's home in Henderson, Nevada, on
October 21, 2000, and put the motorhome and drugs into
storage. Later that day, Roseberry confided to his wife that
he killed Fottler so he could steal the marijuana and sell it
himself. Roseberry told her that his story was going to be
that “some Mexicans” with guns were in the
motorhome and had killed Fottler while Roseberry was out of
Roseberry called her brother, Otis Bowman, and asked him to
fly in from Indiana, which he did on October 22, 2000. Two
drug dealers flew in with Bowman. They agreed to purchase
about 300 pounds of marijuana, which Bowman later transported
to Ohio in Roseberry's motorhome. Roseberry and Dvoracek
split the money from the sale.
body was soon discovered. Investigative leads from United
States Customs agents led Yavapai County Deputy Sheriffs to
Roseberry, whose motorhome customs agents had observed while
surveilling a Tucson stash house.
was tried and convicted of first-degree murder and drug
offenses. In the aggravation phase of his trial, the jury
found that the State had proven beyond a reasonable doubt
that Roseberry murdered Fottler for pecuniary gain. In the
penalty phase, Roseberry presented mitigation evidence on
five statutory and five non-statutory mitigating
circumstances. The jury determined that the mitigation
evidence was not sufficiently substantial to warrant leniency
and returned a verdict of death for the murder. The court
sentenced Roseberry to death.
direct appeal, the Arizona Supreme Court affirmed the
convictions and sentences. Roseberry, 210 Ariz. 360,
111 P.3d 402. Roseberry filed a petition for post-conviction
relief (“PCR”) in April 2012. The trial court
denied the petition and the Arizona Supreme Court denied
Roseberry's petition for review.
December 22, 2015, Roseberry filed a sealed petition for writ
of habeas corpus in this Court. (Doc. 23.) He filed an
unsealed petition on August 8, 2016. (Doc. 32.) The petition
raises 47 claims and dozens of subclaims. (Id.) In
the pending motion for evidentiary development, Roseberry
seeks expansion of the record, discovery, and/or an
evidentiary hearing with respect to 27 of those claims. (Doc.
habeas claims are analyzed under the framework of the
Antiterrorism and Effective Death Penalty Act
(“AEDPA”). Under the AEDPA, a petitioner is not
entitled to habeas relief on any claim adjudicated on the
merits in state court unless the state court's
adjudication (1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly
established federal law or (2) resulted in a decision that
was based on an unreasonable determination of the facts in
light of the evidence presented in state court. 28 U.S.C.
Supreme Court has emphasized that “an
unreasonable application of federal law is different
from an incorrect application of federal law.”
Williams v. Taylor, 529 U.S. 362, 410 (2000). Under
§ 2254(d), “[a] state court's determination
that a claim lacks merit precludes federal habeas relief so
long as ‘fairminded jurists could disagree' on the
correctness of the state court's decision.”
Harrington v. Richter, 562 U.S. 86, 101 (2011).
Cullen v. Pinholster, 563 U.S. 170, 181 (2011), the
Court reiterated that “review under § 2254(d)(1)
is limited to the record that was before the state court that
adjudicated the claim on the merits.” See Murray
(Robert) v. Schriro, 745 F.3d 984, 998 (9th Cir. 2014)
(“Along with the significant deference AEDPA requires
us to afford state courts' decisions, AEDPA also
restricts the scope of the evidence that we can rely on in
the normal course of discharging our responsibilities under
Pinholster does not bar evidentiary development
where the court has determined, based solely on the state
court record, that the petitioner “has cleared the
§ 2254(d) hurdle.” Madison v. Commissioner,
Alabama Dept. of Corrections, 761 F.3d 1240, 1249-50
(11th Cir. 2014); see Pinholster, 563 U.S. at 185;
Henry v. Ryan, 720 F.3d 1073, 1093 n.15 (9th Cir.
2013) (explaining that Pinholster bars evidentiary
hearing unless petitioner satisfies § 2254(d));
Williams v. Woodford, 859 F.Supp.2d 1154, 1161 (E.D.
claims not adjudicated on the merits in state court, federal
review is generally not available when the claims have been
denied pursuant to an independent and adequate state
procedural rule. Coleman v. Thompson, 501 U.S. 722,
750 (1991). In Arizona, there are two avenues for petitioners
to exhaust federal constitutional claims: direct appeal and
PCR proceedings. Rule 32 of the Arizona Rules of Criminal
Procedure governs PCR proceedings and provides that a
petitioner is precluded from relief on any claim that could
have been raised on appeal or in a prior PCR petition. Ariz.
R. Crim. P. 32.2(a)(3).
unexhausted and defaulted claims, “federal habeas
review . . . is barred unless the prisoner can demonstrate
cause for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure
to consider the claims will result in a fundamental
miscarriage of justice.” Coleman, 501 U.S. at
750. Coleman further held that ineffective
assistance of counsel in PCR proceedings does not establish
cause for the procedural default of a claim. Id.
Martinez v. Ryan, 566 U.S. 1 (2012), however, the
Court established a “narrow exception” to the
rule announced in Coleman. Under Martinez,
a petitioner may establish cause for the procedural default
of an ineffective assistance claim “by demonstrating
two things: (1) ‘counsel in the initial-review
collateral proceeding, where the claim should have been
raised, was ineffective under the standards of
Strickland . . .' and (2) ‘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.'”
Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012)
(quoting Martinez, 566 U.S. at 14); see
Clabourne v. Ryan, 745 F.3d 362, 377 (9th Cir. 2014),
overruled on other grounds by McKinney v. Ryan, 813
F.3d 798 (9th Cir. 2015).
habeas petitioner is not entitled to discovery “as a
matter of ordinary course.” Bracy v. Gramley,
520 U.S. 899, 904 (1997); see Campbell v. Blodgett,
982 F.2d 1356, 1358 (9th Cir. 1993). Rule 6 of the Rules
Governing Section 2254 Cases provides that “[a] judge
may, for good cause, authorize a party to conduct discovery
under the Federal Rules of Civil Procedure and may limit the
extent of discovery.” Rule 6(a), Rules Governing §
2254 Cases, 28 U.S.C. foll. § 2254. Whether a petitioner
has established “good cause” for discovery
requires a habeas court to determine the essential elements
of the petitioner's substantive claim and evaluate
whether “specific allegations before the court show
reason to believe that the petitioner may, if the facts are
fully developed, be able to demonstrate that he is . . .
entitled to relief.” Bracy, 520 U.S. at
evidentiary hearing is authorized under Rule 8 of the Rules
Governing § 2254 Cases. Pursuant to § 2254(e)(2),
however, a federal court may not hold a hearing unless it
first determines that the petitioner exercised diligence in
trying to develop the factual basis of the claim in state
court. See Williams (Michael) v. Taylor, 529 U.S.
420, 432 (2000). If the failure to develop a claim's
factual basis is attributable to the petitioner, a federal
court may hold an evidentiary hearing only if the claim
relies on (1) “a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable” or (2) “a
factual predicate that could not have been previously
discovered through the exercise of due diligence.” 28
U.S.C. § 2254(e)(2). In addition, “the facts
underlying the claim [must] be sufficient to establish by
clear and convincing evidence that but for constitutional
error, no reasonable fact finder would have found the
[petitioner] guilty of the underlying offense.”
the factual basis for a claim has not been fully developed in
state court, a district court first determines whether the
petitioner was diligent in attempting to develop the record.
See Baja v. Ducharme, 187 F.3d 1075, 1078 (9th Cir.
1999). The diligence assessment requires a determination of
whether a petitioner “made a reasonable attempt, in
light of the information available at the time, to
investigate and pursue claims in state court.”
Williams (Michael), 529 U.S. at 435. For example,
when there is information in the record that would alert a
reasonable attorney to the existence and importance of
certain evidence, the attorney “fails” to develop
the factual record if he does not make reasonable efforts to
investigate and present the evidence to the state court.
Id. at 438- 39, 442.
unusual circumstances, diligence requires that a petitioner
“at a minimum, seek an evidentiary hearing in state
court in the manner prescribed by state law.”
Williams (Michael), 529 U.S. at 437. The mere
request for an evidentiary hearing, however, may not be
sufficient to establish diligence if a reasonable person
would have taken additional steps. See Dowthitt v.
Johnson, 230 F.3d 733, 758 (5th Cir. 2000); Alley v.
Bell, 307 F.3d 380, 390-91 (6th Cir. 2002); Koste v.
Dormire, 345 F.3d 974, 985-86 (8th Cir. 2003). The Ninth
Circuit has explained that “a petitioner who
‘knew of the existence of [ ] information' at the
time of his state court proceedings, but did not present it
until federal habeas proceedings, ...