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Roseberry v. Ryan

United States District Court, D. Arizona

January 30, 2018

Homer Ray Roseberry, Petitioner,
Charles L. Ryan, et al., Respondents.



          Neil V. Wake Senior United States District Judge.

         Before 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.

         I. BACKGROUND

         The 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 follows.

         In 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 Michigan.

         In 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.

         On 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 Nevada.

         Dvoracek 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.

         Roseberry 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.

         As 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 of jail.

         They 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 the vehicle.

         Diane 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.

         Fottler's 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.

         Roseberry 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.

         On 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.

         On 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. 57.)


         A. AEDPA

         Federal 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. § 2254(d).

         The 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).

         In 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 § 2254(d)(1).”).

         However, 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. Cal. 2012).

         For 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).

         For 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.

         In 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).

         B. Evidentiary Development

         A 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 908-09.

         An 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.” Id.

         When 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.

         Absent 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, ...

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