United States District Court, D. Arizona
Honorable G. Murray Snow United States District Judge.
the Court is Petitioner Steve Alan Boggs's Motion for
Evidentiary Development. (Doc. 48.) Respondents filed a
response in opposition to the motion and Boggs filed a reply.
(Docs. 58, 61.) The motion is denied in part and granted in
part, as set forth herein.
2002, Boggs and Christopher Hargrave shot three fast-food
workers to death. In 2005, Boggs was found guilty of three
counts of first-degree murder, among other counts, and
sentenced to death. The following facts are taken from the
opinion of the Arizona Supreme Court upholding the
convictions and sentences. State v. Boggs, 218 Ariz.
325, 185 P.3d 111 (2008).
19, 2002, police officers responded to a 911 call from a
fast-food restaurant in Mesa. The first officer to arrive
found one of the restaurant's employees, Beatriz
Alvarado, lying on the ground outside the back door; she
repeatedly asked for help but died from two gunshot wounds to
her back. Inside the restaurant, officers found the body of
another employee, Fausto Jimenez, next to a telephone;
Jimenez had been shot three times in the back but managed to
dial 911 shortly before dying from his wounds. In the freezer
was the body of a third employee, Kenneth Brown, who had died
from two gunshot wounds. Police found shell casings and
bullets in the freezer. Two cash registers were opened and
contained only coins; a third register appeared as if someone
had tried to pry it open. Jimenez and Brown were missing
next night, Hargrave, a friend of Boggs's who had
recently been fired from the restaurant, tried to use
Jimenez's bank card at an ATM.
days after the murders, Boggs traded in a Taurus handgun at a
pawnshop. Police recovered the weapon and determined that it
fired all of the shell casings and bullet fragments found at
the scene, including bullet fragments found in the
police interviews with Detective Donald Vogel, Boggs
“confessed to playing an active role in the robbery and
admitted shooting at the victims.” Boggs, 218
Ariz. at 331, 185 P.3d at 117. He described the murders in
detail, explaining that “the victims were forced at
gunpoint to lie down in the work area of the restaurant,
ordered to remove everything from their pockets, ordered to
march through the cooler into the back freezer with their
hands interlaced on top of their heads, forced to kneel down,
and then shot in rapid succession.” Id. at
341, 185 P.3d at 127. Boggs also told police that after
leaving the victims shot in the freezer, he and Hargrave
heard screaming, “at which point he returned to the
freezer and shot some more.” Id.
and Hargrave were involved in a white supremacist
“militia” they called the Imperial Royal Guard.
They and their girlfriends were the only members. In a letter
to a Detective Vogel, written after his confession, Boggs
explained that his motive for the murders was racial rather
to trial, Boggs waived his right to counsel and represented
himself. He relinquished his right to self-representation
after several days of jury selection, and his advisory
counsel took over his defense. Boggs moved to resume
self-representation between the aggravation and penalty
phases, but the court denied his request. The jury found
Boggs guilty of all charged crimes.
sentencing, the jury found three aggravating factors for each
of the murders: expectation of pecuniary gain, under A.R.S.
§ 13-703(F)(5); murders committed in an especially
heinous, cruel or depraved manner, under § 13-703(F)(6);
and a conviction for one or more other homicides during the
commission of the offense, under § 13- 703(F)(8). The
defense presented mitigation evidence concerning Boggs's
troubled childhood and mental health issues. At the close of
the trial, the jury found Boggs's mitigation not
sufficiently substantial to call for leniency and concluded
that death was the appropriate sentence for each murder.
Arizona Supreme Court affirmed the convictions and sentences.
Boggs, 218 Ariz. 325, 185 P.3d 111. After
unsuccessfully pursuing post-conviction relief
(“PCR”), Boggs filed a petition for writ of
habeas corpus in this Court. (Doc. 15.) Respondents filed an
answer and Boggs filed a reply. (Docs. 21, 26.) Boggs filed
the pending motion for evidentiary development on February 3,
2017. (Doc. 48.)
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 (Terry) 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,
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)).
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). The Ninth Circuit has explained
that “PCR counsel would not be ineffective for failure
to raise an ineffective assistance of counsel claim with
respect to trial counsel who was not constitutionally
ineffective.” Sexton v. Cozner, 679 F.3d 1150,
1157 (9th Cir. 2012).
applies only to claims of ineffective assistance of trial
counsel; it has not been expanded to other types of claims.
Pizzuto v. Ramirez, 783 F.3d 1171, 1177 (9th Cir.
2015) (explaining that the Ninth Circuit has “not
allowed petitioners to substantially expand the scope of
Martinez beyond the circumstances present in
Martinez”); Hunton v. Sinclair, 732
F.3d 1124, 1126-27 (9th Cir. 2013) (denying petitioner's
argument that Martinez permitted the resuscitation
of a procedurally defaulted Brady claim, holding
that only the Supreme Court could expand the application of
Martinez to other areas); see Davila v.
Davis, 137 S.Ct. 2058, 2062- 2063, 2065-66 (2017)
(explaining that the Martinez exception does not
apply to claims of ineffective assistance of appellate
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
(quoting Harris v. Nelson, 394 U.S. 286, 300 (1969))
(internal quotation marks omitted).
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. 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, ‘failed to develop the factual basis for
his claim diligently.'” Rhoades v. Henry,
598 F.3d 511, 517 (9th Cir. 2010) (quoting Cooper-Smith
v. Palmateer, 397 F.3d 1236, 1241 (9th Cir. 2005)).
an evidentiary hearing is not required if the issues can be
resolved by reference to the state court record. Totten
v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998)
(“It is axiomatic that when issues can be resolved with
reference to the state court record, an evidentiary hearing
becomes nothing more than a futile exercise.”); see
Schriro v. Landrigan, 550 U.S. 465, 474 (2007)
(“[I]f the record refutes the applicant's factual
allegations or otherwise precludes habeas relief, a district
court is not required to hold an evidentiary
hearing.”). Likewise, “an evidentiary hearing is
not required if the claim presents a purely legal question
and there are no disputed facts.” Beardslee v. Wood
ford, 358 F.3d 560, 585 (9th Cir. 2004); see
Hendricks v. Vasquez, 974 F.2d 1099, 1103 (9th Cir.
under Rule 7 of the Rules Governing Section 2254 Cases, a
federal habeas court is authorized to expand the record to
include additional material relevant to the petition. The
purpose of expansion of the record under Rule 7 “is to
enable the judge to dispose of some habeas petitions not
dismissed on the pleadings, without the time and expense
required for an evidentiary hearing.” Advisory
Committee Notes, Rule 7, 28 U.S.C. foll. § 2254; see
also Black ledge v. Allison, 431 U.S. 63, 81-82 (1977);
Downs v. Hoyt, 232 F.3d 1031, 1041 (9th Cir. 2000)
(explaining that the need for an evidentiary hearing may be
obviated by expansion of record); Griffey v.
Lindsey, 345 F.3d 1058, 1067 (9th Cir. 2003) (stating
that a hearing is not warranted if claims can “be
resolved by reference to the state court record and the
documentary evidence”), vacated on other grounds as
moot, 349 F.3d 1157 (9th Cir. 2003).
2254(e)(2) limits a petitioner's ability to present new
evidence through a Rule 7 motion to the same extent that it
limits the availability of an evidentiary hearing. See
Cooper-Smith, 397 F.3d at 1241 (applying §
2254(e)(2) to expansion of the record when intent is to
bolster the merits of a claim with new evidence) (citing
Holland v. Jackson, 542 U.S. 649, 652-53 (2004) (per
curiam)). Accordingly, when a petitioner seeks to introduce
new affidavits and other documents never presented in state
court, he must either demonstrate diligence in developing the
factual basis in state court or satisfy the requirements of
seeks evidentiary development on 19 of the 43 claims in his
450-page habeas petition. These include both exhausted and
parties agree that the following claims for which Boggs seeks
evidentiary development are procedurally defaulted: 1, 4 (in
part), 7, 8, 15 (in part), 17, 18, 22, 40, and 43. Boggs
contends their default is excused under Martinez by
the ineffective assistance of appellate or PCR counsel. The
Claim 1, Boggs alleges that he was tried and sentenced while
legally incompetent and that his due process rights were
violated when he was found competent to waive representation.
(Doc. 15 at 42.) Claim 4 alleges in part that Boggs's
statements to Detective Vogel were inadmissible because Boggs
was not competent to waive his right to counsel or his
privilege against self-incrimination. (Id. at 80.)
In Claim 7, Boggs alleges that the trial court violated his
rights by failing to maintain a complete record of the trial.
(Id. at 138.) In Claim 8, Boggs alleges that his
constitutional rights were violated when he was ordered to
wear a stun belt and leg restraint during his trial.
(Id. at 149.) In Claim 15, Boggs alleges in part
that his confrontation clause rights were violated by the
introduction of rebuttal evidence during the penalty phase of
his trial. (Id. at 224.) In Claim 17, Boggs alleges
that the prosecutor committed misconduct when he argued that
mitigation must have a causal nexus to the crime and
presented evidence of Boggs's militia involvement.
(Id. at 294.) In Claim 22, Boggs alleges that his
execution would be unconstitutional because he is mentally
impaired. (Id. at 339.) In Claim 40, Boggs alleges
that his constitutional rights were violated by the
death-qualification of his jury. (Id. at 422.)
Finally, in Claim 43, Boggs alleges cumulative prejudicial
errors at his trial. (Id. at 437.)
did not present these claims on direct appeal. (See
Doc. 21-1, Ex. A.) Therefore, as Boggs concedes, the claims
are procedurally defaulted. Boggs argues, however, that the
ineffective assistance of appellate and PCR counsel provide
cause for the default and establish prejudice. These
before ineffective assistance of appellate counsel may be
utilized as cause to excuse a procedural default, the
particular ineffective assistance allegation must first be
exhausted before the state courts as an independent claim.
See Edwards v. Carpenter, 529 U.S. 446, 453 (2000)
(“an ineffective-assistance-of-counsel claim asserted
as cause for the procedural default of another claim can
itself be procedurally defaulted”); Murray v.
Carrier, 477 U.S. 478, 489-90 (1986); Tacho v.
Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988). During
the PCR proceedings, Boggs did not allege ineffective
assistance of appellate counsel based on counsel's
failure to raise these claims on appeal. (See
ROA-PCR 54.) Therefore, ineffective assistance of
appellate counsel cannot constitute cause for their default.
Boggs does not attempt to demonstrate that a fundamental
miscarriage of justice will occur if the claims are not
resolved on the merits.
the alleged ineffectiveness of PCR counsel does not excuse
the default under Martinez, which, as described
above, applies only to defaulted claims of ineffective
assistance of trial counsel. Unlike allegations of
ineffective assistance of trial counsel, these claims could
have been raised on direct appeal; therefore, they are not
subject to the “limited qualification to
Coleman” established in Martinez, 566
U.S. at 15. Boggs asserts that the equitable principles of
Martinez should apply to other types of claims, but
cites no authority for that argument, and the case law holds
the opposite. See Pizzuto, 783 F.3d at 1177;
Hunton, 732 F.3d at 1126-27. Therefore, these claims
remain procedurally barred.
addition, Claims 22 and 40 are clearly without merit. In
Claim 22, Boggs alleges that he suffers from “serious
mental illness” and his execution would violate the
Eighth and Fourteenth Amendments. (Doc. 15 at 339.) In
Ford v. Wainwright, 477 U.S. 399, 409-10 (1986), the
Supreme Court held that it is a violation of the Eighth
Amendment to execute someone who cannot comprehend that his
execution is based on a conviction for murder. Boggs,
however, does not contend that he is incompetent to be
executed under Ford, only that he has “serious
mental illness.” In any event, a determination of
incompetence cannot be made until an execution warrant is
issued making the petitioner's execution imminent.
See Martinez-Villareal v. Stewart, 118 F.3d 628, 630
(9th Cir. 1997) (citing Herrera v. Collins, 506 U.S.
390, 406 (1993)).
Claim 40, Boggs alleges that his constitutional rights were
violated by the death-qualification of his jury. (Doc. 15 at
422.) Clearly established federal law holds that the
death-qualification process in a capital case does not
violate a defendant's right to a fair and impartial jury.
See Lockhart v. McCree, 476 U.S. 162, 178 (1986);
Wainwright v. Witt, 469 U.S. 412, 424 (1985);
see also Ceja v. Stewart, 97 F.3d 1246, 1253 (9th
Cir. 1996) (finding death qualification of Arizona jurors not
development is denied on these unexhausted claims.
seeks discovery and expansion of the record in support of
Claim 6, alleging that the pretrial seizure of materials from
his jail cell impeded his ability to prepare for trial and
consult with advisory counsel. (Doc. 48 at 32-34;
see Doc. 15 at 117.) The Arizona Supreme Court
denied this claim on direct appeal. Boggs, 218 Ariz.
at 336-37, 185 P.3d at 122-23. Under Pinholster, 563
U.S. at 161, Boggs is not entitled to evidentiary
also seeks discovery and expansion of the record for a series
of claims challenging the death penalty in general and
elements of Arizona's death penalty scheme in particular.
The Arizona Supreme Court denied these claims on direct
appeal. Boggs, 218 Ariz. at 344-45, 325, 185 P.3d at
alleges that the death penalty constitutes cruel and unusual
punishment, Claim 24, and serves no purpose beyond that
served by a life sentence, Claim 30. (Doc. 15 at 389, 404.)
In Claim 26, Boggs alleges that the “especially
heinous, cruel or depraved” aggravating circumstance,
A.R.S. § 13-703(F)(6), is unconstitutionally vague and
overbroad. (Id. at 394.) In Claim 28, Boggs alleges
that Arizona's death-penalty statute insufficiently
channels the discretion of the sentencing authority.
(Id. at 400.) ...