United States District Court, D. Arizona
R. Bolton United States District Judge
the Court is Petitioner Wendi Andriano's Motion for
Evidentiary Development. (Doc. 45.) Respondents filed a
response in opposition to the motion and Andriano filed a
reply. (Docs. 60, 63.) The motion is denied as set forth
2004, Andriano was convicted of one count of first-degree
murder and sentenced to death for the killing of her
terminally ill husband. The following facts are taken from
the opinion of the Arizona Supreme Court affirming the
conviction and sentence, State v. Andriano, 215
Ariz. 497, 161 P.3d 540 (2007), and from the Court's
review of the record.
about 2:15 a.m. on October 8, 2000, Andriano called Chris, a
coworker who lived at the same apartment complex, and asked
her to watch the Andrianos' two children while she took
her husband, Joe, to the doctor. Andriano met Chris outside
the apartment and told her Joe was dying. She also stated
that she hadn't called 911 yet. Chris urged her to do so.
entering the apartment, Chris found Joe lying on the living
room floor in the fetal position. He had vomited, appeared
weak, and was having difficulty breathing. While Andriano was
in another room calling 911, Joe told Chris that he needed
help and had “for a long time.” He asked why it
was taking 45 minutes for the paramedics to show up.
heard the paramedics arrive and went outside to direct them
to the apartment. As the paramedics were unloading their
equipment, Andriano came out of the apartment screaming at
them to leave. She returned to the apartment and slammed the
door. Chris and the paramedics knocked on the door but no one
answered. The Phoenix Fire Department called the
Andrianos' home telephone in an attempt to get Andriano
to open the door. They notified the paramedics that contact
had been made with someone in the apartment who would come
out to speak with them. Instead of coming out the front door,
which opened onto the living room, Andriano went out through
the back door, climbed over the patio wall, and walked around
the apartment building to the front door. She had changed her
shirt and her hair was wet. She told the paramedics that Joe
was dying of cancer and had a do-not-resuscitate order. The
paramedics left without entering the apartment.
called 911 again at 3:39 a.m. The same paramedics responded.
When they entered the apartment they found Joe lying dead on
the floor in a pool of blood. As determined by the medical
examiner, Joe had sustained brain hemorrhaging caused by more
than 20 blows to the back of his head. He had also suffered a
stab wound to the side of his neck that severed his carotid
artery. A broken bar stool covered in blood was found near
Joe's body, along with pieces of a lamp, a bloody kitchen
knife, a bloody pillow, and a belt.
amounts of the poison sodium azide were found in Joe's
blood and gastric contents, and in the contents of a pot and
two soup bowls in the kitchen. Police also found gelatin
capsules filled with sodium azide.
wounds on Joe's hands and wrists indicated that he was
conscious for at least part of the attack. Blood spatter and
other evidence indicated that he was lying down during the
attack. The absence of arterial spurting on the belt and the
knife indicated that the items were placed beside Joe's
body after he died.
trial, Andriano testified that Joe, who was suffering from
terminal cancer and had been contemplating suicide, decided
to take his life that night and swallowed several of the
sodium azide capsules. The poison failed to kill him,
however, and he became verbally abusive, accusing Andriano of
infidelity and violently attacking her when she admitted to
an affair. Andriano testified that Joe tried to strangle her
with a telephone cord but she was able to cut the cord with a
knife. When Joe picked up the knife she struck him with the
bar stool in self-defense. She then hid in the bathroom but
when she returned Joe still had the knife in his hand and was
threatening to kill himself. She testified that she tried to
stop him and during the resulting struggle his neck was cut.
also presented evidence, including expert testimony, that she
was a victim of domestic abuse. Andriano testified that
throughout the course of their marriage Joe had been
emotionally, physically, and sexually abusive. The expert
testified about the psychological effects of domestic abuse.
jury found Andriano guilty of first-degree murder. During the
penalty phase, the jury found one aggravating factor: that
the murder had been committed in an “especially cruel
manner” under A.R.S. § 13-751(F)(6). The jury then
found that the evidence presented in mitigation was not
sufficiently substantial to call for leniency and returned a
verdict of death.
sought post-conviction relief (“PCR”) in state
court, filing a petition raising claims of ineffective
assistance of trial and appellate counsel. (PCR pet., Doc.
28-1, Ex. OOOOO.) The court dismissed the majority of
Andriano's claims as precluded or not colorable, but
granted a hearing on her penalty-phase ineffectiveness and
conflict-of-interest claims. (ME 10/30/12.) After an
eight-day evidentiary hearing, the court dismissed both
claims. (ME 11/1/14.) The Arizona Supreme Court denied review
filed a petition for writ of habeas corpus in this Court on
March 6, 2017. (Doc. 17.) She filed the pending motion for
evidentiary development on December 4, 2017. (Doc. 45.)
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
§ 2254(d)(1).”). However, Pinholster does
not bar evidentiary development where the petitioner has
satisfied § 2254(d) based solely on an assessment of the
state court record. See Crittenden v.
Chappell, 804 F.3d 998, 1010 (9th Cir. 2015); Sully
v. Ayers, 725 F.3d 1057, 1075 (9th Cir. 2013).
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). 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, 2062-63 (2017) (explaining that
the Martinez exception does not apply to claims of
ineffective assistance of appellate counsel).
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),
overruled on other grounds by Daire v. Lattimore,
812 F.3d 766 (9th Cir. 2016)).
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.
Woodford, 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 Blackledge 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).
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); 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 26 claims or subclaims in
her habeas petition, including both exhausted and unexhausted
claims. A number of the claims allege ineffective assistance
of counsel. Because these require a different analytical
framework, the Court's discussion proceeds as follows.
Non-Ineffective Assistance of Counsel Claims
alleges that the trial court violated her due process rights
by admitting evidence of her extramarital affairs and her
attempts to fraudulently obtain life insurance on her
husband. (Doc. 17 at 87-101.) Andriano seeks to depose the
prosecutor and requests a subpoena duces tecum to the
Maricopa County Attorney's Office for his personnel file.
(Doc. 45 at 21-25.) She also requests expansion of the record
to include appellate counsel Peg Green's notes; documents
relating to the Arizona Capital Representation Project's
assistance with Andriano's appeal; declarations from
Green, ethics attorney Karen Clark, sodium-azide expert Dr.
Eric Betterton, trial witness James Yost, and trial counsel
Patterson; files relating to a bar complaint against
the prosecutor; media reports about the prosecutor; and
portions of the Phoenix Police Departmental Report concerning
this case. (Id., & Ex's 10, 11, 25, 28-34.)
Andriano also seeks an evidentiary hearing. (Id.)
Arizona Supreme Court rejected this claim on the merits.
Andriano, 215 Ariz. at 502-03, 161 P.3d at 545-46.
The court held that the evidence was admissible under Rule
404(b) of the Arizona Rules of Evidence and was not unfairly
prejudicial. Id. Unless this ruling is contrary to
or an unreasonable application of clearly established federal
law under 28 U.S.C. § 2254(d)(1), evidentiary
development is prohibited. The ruling does not meet that
court evidentiary rulings cannot serve as a basis for habeas
relief unless the asserted error rises to the level of a
federal constitutional violation. See Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991). “The admission
of evidence does not provide a basis for habeas relief unless
it rendered the trial fundamentally unfair in violation of
due process.” Holley v. Yarborough, 568 F.3d
1091, 1101 (9th Cir. 2009) (internal quotation marks and
citation omitted); see Jammal v. Van de Kamp, 926
F.2d 918, 919-20 (9th Cir. 1991). The AEDPA further restricts
the availability of federal habeas review for evidentiary
claims because the Supreme Court “has not yet made a
clear ruling that admission of irrelevant or overtly
prejudicial evidence constitutes a due process violation
sufficient to warrant issuance of the writ.”
Holley, 568 F.3d at 1101; see Bugh v.
Mitchell, 329 F.3d 496, 512 (6th Cir. 2003)
(“There is no clearly established Supreme Court
precedent which holds that a state violates due process by
permitting propensity evidence in the form of other bad acts
evidence.”). Because it does not satisfy §
2254(d)(1), Claim 4 is denied as without merit.
whether or not the Arizona Supreme Court's ruling
satisfies § 2254(d), evidentiary development is not
warranted because the claim presents a legal question and can
be resolved on the state court record. Beardslee,
358 F.3d at 585-86; Totten, 137 F.3d at 1176.
alleges that A.R.S. § 13-751(F)(6), the especially cruel
aggravating factor, is facially vague and overbroad. (Doc. 17
at 155-65.) She seeks discovery in the in the form of a
subpoena to each Arizona county attorney's office. (Doc.
45 at 41-42.) The request is denied.
Arizona Supreme Court rejected this claim on direct appeal.
Andriano, 215 Ariz. at 505-06, 161 P.3d at 548-49.
Pinholster bars evidentiary development unless the
claims satisfies § 2254(d). It does not.
United States Supreme Court has upheld the (F)(6) aggravating
factor against allegations that it is vague and overbroad,
rejecting a claim that Arizona has not construed the factor
in a “constitutionally narrow manner.” See
Lewis v. Jeffers, 497 U.S. 764, 774-77 (1990);
Walton v. Arizona, 497 U.S. 639, 649-56 (1990),
overruled on other grounds by Ring v. Arizona, 536
U.S. 584 556 (2002). Andriano's challenge to the (F)(6)
factor is without merit, and Claim 17 is denied.
alleges that the death penalty is categorically cruel and
unusual punishment. (Doc. 17 at 220-23.) She seeks to expand
the record with reports questioning the deterrent value of
capital punishment. (Doc. 45 at 56-57, & Ex's 38-40.)
The request is denied.
Arizona Supreme Court rejected this claim on direct appeal.
Andriano, 215 Ariz. at 513, 161 P.3d at 556.
Pinholster bars evidentiary development unless the
claim satisfies § 2254(d), which Claim 22 does not.
There is no clearly established federal law supporting the
claim that the death penalty is categorically cruel and
unusual punishment or that it serves no purpose. See
Gregg v. Georgia, 428 U.S. 153, 187 (1976); Hall v.
Florida, 134 S.Ct. 1986, 1992-93 (2014). Claim 22 is