United States District Court, D. Arizona
Honorable Roslyn O. Silver Senior United States District
the Court is Petitioner Tracy Allen Hampton's amended
petition for writ of habeas corpus. (Doc. 40.) Respondents filed
a response and Petitioner filed a reply. (Docs. 51, 68.)
Petitioner also filed a motion for evidentiary development
(Doc. 73), which has been fully briefed (Docs. 76, 77). The
Court rules as follows.
2002, a jury convicted Petitioner of two counts of
first-degree murder and one count of manslaughter and
sentenced him to death. The following factual summary is
taken from the opinion of the Arizona Supreme Court affirming
the convictions and death sentence, State v.
Hampton, 213 Ariz. 167, 140 P.3d 950 (2006), and a
review of the state court record.
16, 2001, Department of Public Safety officers attempted to
serve a traffic ticket on Tracy Allen Hampton. The officers
went to a house on East Roberts Road in Phoenix, where
Hampton had been staying with Charles Findley and Tanya
Ramsdell. Ramsdell was approximately five months pregnant at
the time. When the officers arrived, Hampton was not there,
but Findley showed the officers a photograph of Hampton, and
the officers left.
the next day, Misty Ross and Shaun Geeslin went to the house
on East Roberts Road. Hampton let them in, and Hampton,
Findley, Ross, Geeslin and several others smoked
methamphetamine throughout the morning. Sometime after 10:30
a.m., Hampton and Geeslin left. The two returned near noon
and entered a back room where Findley was kneeling on the
floor working on a lighter. Hampton walked over to Findley
and called out his name. As Findley looked up, Hampton shot
him in the forehead, killing him. Geeslin and Ross then
walked to the front door.
began following Geeslin and Ross, but stopped and said
something like, “Wait, we have one more.” He then
went to a bedroom where Ramsdell was sleeping and opened the
door. Ramsdell told Hampton to get out, and Hampton shot her
in the head. Ramsdell and her unborn child died as a result.
was arrested on May 31, 2001. While awaiting trial in the
Maricopa County jail in August 2001, Hampton shared a cell
with George Ridley. Ridley testified at trial that Hampton
admitted to committing the murders and told him the story of
the murders every night for two weeks. Hampton told Ridley
that he killed Findley because “he was a rat” and
he killed Ramsdell because Hampton was affiliated with the
Aryan Brotherhood and thought that Ramsdell was pregnant with
a Black man's child. Ridley also testified that before
leaving the house, Hampton knelt down next to Findley's
body and whispered in his ear, “I want to let you know
I took care of your nigger loving old lady and her little
coon baby, too. Don't worry, they didn't feel a
jury found Petitioner guilty on all counts. It then found
that Petitioner was eligible for the death penalty for both
counts of murder and concluded that the mitigating
circumstances were not sufficiently substantial to call for
leniency. The trial court accordingly imposed death sentences
for the two murder convictions. It also imposed an aggravated
term of twelve and one-half years for manslaughter, to run
consecutively to the death sentences. The Arizona Supreme
Court upheld the convictions on direct appeal.
August 18, 2011, Hampton filed an amended petition for
post-conviction relief (“PCR”). He raised six
1. Ineffective assistance of counsel at the guilt phase of
2. Ineffective assistance of counsel at the sentencing phase
3. Newly-discovered evidence;
4. That the Arizona Supreme Court improperly applied
Tennard v. Dretke, 542 U.S. 274 (2004);
5. Ineffective assistance of appellate counsel; and
6. The ex post facto application of A.R.S.
§31-230(C) to the imposed restitution.
(See Doc. 51-3 at 158.)
Court summarily dismissed claims 3 through 6. It concluded
that claims 3, 5 and 6 were not colorable, and that claim 4
was procedurally barred under Rule 32.2(a). (Id.)
Court then held a five-day evidentiary hearing on claims 1
and 2. (See Id. at 176). Petitioner argued that his
trial counsel were ineffective at the guilt phase by failing
to conduct a reasonable investigation, to call various
witnesses and to present evidence in support of a third-party
defense. He further argued that they were ineffective at the
sentencing phase by failing to conduct a reasonable
investigation and failing to call mental health experts to
present mitigation evidence. The PCR court denied these
claims. (Id. at 194.) The Arizona Supreme Court then
summarily denied review. (Doc. 54-8 at 138.)
filed his petition for habeas relief in this Court on October
5, 2015 (Doc. 21), and an amended petition on January 29,
2016 (Doc. 40).
habeas claims are analyzed under the framework of the
Antiterrorism and Effective Death Penalty Act
(“AEDPA”). The AEDPA defines the substantive and
procedural limits on the claims a capital habeas petitioner
may bring, and the Rules Governing Section 2254 Cases define
the types of evidentiary development a petitioner may seek if
his claims otherwise meet the requirements of the AEDPA.
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).
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)(1), “[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)
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664
§ 2254(d)(2), a state court's factual determination
is presumed correct and a petitioner bears the burden of
overcoming that presumption with clear and convincing
evidence. 28 U.S.C. § 2254(e)(1). Satisfying §
2254(d)(2) is a “daunting” burden, “one
that will be satisfied in relatively few cases.”
Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.
2004), overruled on other grounds by Murray v.
Schriro (Robert Murray), 745 F.3d 984, 1000
(9th Cir. 2014). A state court's “factual
determination is not unreasonable merely because [a] federal
habeas court would have reached a different conclusion in the
first instance.” Wood v. Allen, 558 U.S. 290,
301 (2010). Instead, a federal habeas court “must be
convinced that an appellate panel, applying the normal
standards of appellate review, could not reasonably conclude
that the finding is supported by the record.”
Taylor, 366 F.3d at 1000.
Exhaustion and Procedural Default
AEDPA requires that a writ of habeas corpus not be granted
unless it appears that the petitioner has properly exhausted
all available state court remedies. 28 U.S.C. §
2254(b)(1); see also Coleman v. Thompson, 501 U.S.
722, 731 (1991). To properly exhaust state remedies, the
petitioner must “fairly present” his claims to
the state's highest court in a procedurally appropriate
manner. O'Sullivan v. Boerckel, 526 U.S. 838,
848 (1999). Petitioners meet this requirement by describing
the operative facts and the federal legal theory on which a
habeas claim is based so that state courts have a fair
opportunity to apply controlling legal principles to the
facts bearing upon the claim. Anderson v. Harless,
459 U.S. 4, 6 (1982).
may also be “technically” exhausted if the
petitioner has lost the opportunity to raise his claim on
“independent and adequate” state law grounds.
Coleman, 501 U.S. at 732 (“A habeas petitioner
who has defaulted his federal claims in state court meets the
technical requirements for exhaustion; there are no state
remedies any longer ‘available' to him.”).
Such “technically” exhausted claims, however, are
considered procedurally defaulted and are not subject to
habeas relief. See Id. at 731-32; Smith v.
Baldwin, 510 F.3d 1127, 1139 (9th Cir. 2007).
Arizona, there are two avenues for petitioners to present and
exhaust federal constitutional claims in state court: direct
appeal and PCR proceedings. Rule 32 of the Arizona Rules of
Criminal Procedure governs PCR proceedings and provides that
a petitioner is procedurally barred 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). If an Arizona court
concludes that a claim was waived under this rule, that
independent and adequate procedural ground precludes federal
habeas relief. See Hurles v. Ryan, 752 F.3d 768, 780
(9th Cir. 2014).
default, however, is not an insurmountable bar to relief. A
petitioner may raise a defaulted claim if the petitioner
“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.
“cause” for a procedural default exists if a
petitioner can demonstrate that “some objective factor
external to the defense impeded counsel's efforts to
comply with the State's procedural rule.”
Murray v. Carrier, 477 U.S. 478, 488 (1986);
accord Coleman, 501 U.S. at 753.
“Prejudice” is actual harm resulting from the
alleged constitutional error or violation. Vickers v.
Stewart, 144 F.3d 613, 617 (9th Cir. 1998). To establish
prejudice resulting from a procedural default, a petitioner
bears the burden of showing not merely that the errors at his
trial were possibly prejudicial, but that they worked to his
actual and substantial disadvantage, infecting his entire
trial with errors of constitutional dimension. United
States v. Frady, 456 U.S. 152, 170 (1982).
the acts of a petitioner's counsel are not external to
the defense, they are generally attributable to the
petitioner, and negligence, ignorance, or inadvertence on
counsel's part does not qualify as “cause.”
Coleman, 501 U.S. at 752-54 (citing
Carrier, 477 U.S. at 488). However, where the
ineffective assistance of counsel amounts to an independent
constitutional violation, it can establish cause.
Id. at 753-54; Ortiz v. Stewart, 149 F.3d
923, 932 (9th Cir. 1998).
ineffective assistance of counsel claims, a petitioner may
establish cause for a procedural default “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 v. Washington, 466 U.S. 668 (1984),'
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 v. Ryan, 566 U.S. 1, 14 (2012));
see also Pizzuto v. Ramirez, 783 F.3d 1171, 1178
(9th Cir. 2015).
prevail under Strickland, a petitioner must show
that counsel's representation fell below an objective
standard of reasonableness and that the deficiency prejudiced
the defense. 466 U.S. at 687-88. The inquiry under
Strickland is highly deferential, and “every
effort [must] be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel's
challenged conduct, and to evaluate the conduct from
counsel's perspective at the time.” Id. at
689; Atwood v. Ryan, 870 F.3d 1033, 1055 (9th Cir.
satisfy Strickland's first prong, a defendant
must overcome “the presumption that, under the
circumstances, the challenged action might be considered
sound trial strategy.” Strickland, 466 U.S. at
689. With respect to Strickland's second prong,
a petitioner must affirmatively prove prejudice by
“show[ing] that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of
the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694.
Martinez exception to procedural default applies
only to claims of ineffective assistance of trial counsel; it
has not been expanded to other types of claims.
Pizzuto, 783 F.3d at 1177 (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) (noting that only the Supreme Court can expand the
application of Martinez to other areas); see
Davila v. Davis, 137 S.Ct. 2058, 2062-63, 2065-66 (2017)
(explaining that the Martinez exception does not
apply to claims of ineffective assistance of appellate
a petitioner may be able to overcome a procedural default by
establishing that a fundamental miscarriage of justice
occurred. A fundamental miscarriage of justice occurs where
the petitioner makes a sufficient showing of actual
innocence. See Schlup v. Delo, 513 U.S. 298, 316
(1995) (“[I]f a petitioner . . . presents evidence of
innocence so strong that a court cannot have confidence in
the outcome of the trial unless the court is also satisfied
that the trial was free of nonharmless constitutional error,
the petitioner should be allowed to pass through the gateway
and argue the merits of his underlying claims.”).
“In Schlup, the Court . . . held that
prisoners asserting innocence as a gateway to defaulted
claims must establish that, in light of new evidence,
‘it is more likely than not that no reasonable juror
would have found petitioner guilty beyond a reasonable
doubt.'” House v. Bell, 547 U.S. 518,
536-37 (2006) (quoting Schlup, 513 U.S. at 327). To
revive a claim under Schlup, a petitioner's
claim of innocence must be “truly extraordinary.”
the Rules Governing Section 2254 Cases, a petitioner may seek
to discover and introduce additional evidence in federal
court. The court's discretion to grant such requests,
however, is limited.
Cullen v. Pinholster, 563 U.S. 170 (2011), the Court
emphasized that “review under § 2254(d)(1) is
limited to the record that was before the state court that
adjudicated the claim on the merits.” Id. at
181; see also Robert Murray, 745 F.3d at 998
(“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. Comm'r, Ala. Dep't of
Corr., 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).
clear the § 2254(d) hurdle, a petitioner must establish
that the state court's decision (1) “was contrary
to, or involved an unreasonable application of, clearly
established Federal law, ” or (2) “was based on
an unreasonable determination of the facts in light of the
evidence presented” in state court. 28 U.S.C. §
2254(d). A petitioner who meets the deferential standards of
§ 2254(d) may be entitled to evidentiary development if
the following standards are also met.
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.
a federal court may not hold a hearing unless it first
determines that the petitioner did not “fail to
develop” the factual basis of the claim in state court.
See Williams v. Taylor (Michael Williams),
529 U.S. 420, 431-32 (2000). “[A] failure to develop
the factual basis of a claim is not established unless there
is lack of diligence, or some greater fault, attributable to
the prisoner or the prisoner's counsel.”
Id. at 432; see also Baja v. Ducharme, 187
F.3d 1075, 1078-79 (9th Cir. 1999). “[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).
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
also 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).
Petition sets forth 39 claims for relief. For the reasons set
forth below, those claims are denied.
Claim 1, Petitioner alleges that his rights to “due
process, a fair trial, a reliable sentence, effective
assistance of counsel, and to be free from cruel and unusual
punishment” were violated “because he is actually
innocent.” (Doc. 40 at 26.) He acknowledges, and the
Court finds, that this claim was not raised in state court,
but Petitioner summarily alleges that he can overcome that
procedural default under Martinez, Schlup,
and Strickler v. Greene, 527 U.S. 263, 289 (1999)
(finding cause and prejudice for the default of a
Brady claim). The state argues that this claim
is not cognizable and without merit. (Doc. 51 at 33.)
Court need not decide whether the default of this claim can
be properly excused because, as this Court has previously
explained, see Hampton v. Ryan, No.
CV-14-2504-PHX-ROS, 2016 WL 3653965, at *4-5 (D. Ariz. July
8, 2016) (denying Petitioner's motion for an order
staying and holding in abeyance these habeas proceedings), it
is without merit. See 28 U.S.C. § 2254(b)(2)
(authorizing the denial of meritless habeas claims regardless
of the claims' procedural status); see also Murray v.
Schriro (Roger Murray), 882 F.3d 778, 808 (9th
Cir. 2018); Atwood, 870 F.3d at 1065 n.28. Although
the United States Supreme Court has not foreclosed actual
innocence claims, see Herrera v. Collins, 506 U.S.
390, 417 (1993), the Court has emphasized that the standard
for establishing such a claim “would necessarily be
extraordinarily high.” Id. Petitioner has not
met that burden. See Hampton, 2016 WL 3653965, at *5
(“Hampton has not offered ‘new reliable
evidence' of his innocence. . . . The evidence does not
affirmatively prove that he is more likely than not innocent
of the murders and that no reasonable juror would have found
him guilty beyond a reasonable doubt.” (citation
request for evidentiary development in support of this claim
is also denied because Petitioner has not “allege[d]
facts which, if proved, would entitle him to relief.”
Townsend v. Sain, 372 U.S. 293, 312-13 (1963),
overruled in part by Keeney v. Tamayo-Reyes, 504
U.S. 1 (1992); see also Insyxiengmay v. Morgan, 403
F.3d 657, 670 (9th Cir. 2005) (a claim must be
“colorable” before an evidentiary hearing will be
granted). Petitioner alleges that the state's key
witness, Misty Ross, later gave conflicting descriptions of
the crime, the state's informant, George Ridley, lied on
the stand about Petitioner's alleged confession, and that
an alternative suspect, Tim Wallace, confessed to the crime.
As this Court previously noted, these allegations are
insufficient to state a freestanding actual innocence claim.
See Hampton, 2016 WL 3653965, at *5 (“Hampton
has offered no new evidence that would preclude the
possibility of his guilt. . . . At most the new evidence
undercuts the trial testimony of Misty Ross and George
Ridley, . . . but it does so in a way that is cumulative to
the impeachment evidence in Hampton's possession at the
time of trial.” (citations omitted)). Because the facts
Petitioner alleges are not sufficient to state an actual
innocence claim, evidentiary development would be futile.
See Totten, 137 F.3d at 1176.
next asserts that, even if his substantive actual innocence
claim fails, his actual innocence excuses the default of
other claims based on the “gateway” articulated
in Schlup. See 513 U.S. at 298. Under
Schlup, an actual innocence claim that is “not
itself a constitutional claim” may nonetheless serve as
“a gateway through which a habeas petitioner must pass
to have his otherwise barred constitutional claim[s]
considered on the merits.” Id. at 315 (quoting
Herrera, 506 U.S. at 404). To revive a claim under
Schlup, a petitioner must show that “it is
more likely than not that no reasonable juror would have
convicted him in the light of the new evidence.”
Id. at 327.
seeks evidentiary development to establish that no reasonable
juror would have convicted him in light of new evidence under
Schlup in order to revive five defaulted claims:
Claims 2, 3, 4, 6, and 8. When evaluating a claim under
Schlup, “a habeas court must consider all the
evidence, old and new, incriminating and exculpatory, without
regard to whether it would necessarily be admitted under
rules of admissibility that would govern at trial.”
House, 547 U.S. at 538 (quoting Schlup, 513
U.S. at 327). To receive a hearing in support of a
Schlup claim, Petitioner must “make a
good-faith allegation that would, if true, entitle him to
equitable tolling.” Stewart v. Cate, 757 F.3d
929, 941 (9th Cir. 2014) (quoting Roy v. Lampert,
465 F.3d 964, 969 (9th Cir. 2006)).
taking the evidence Petitioner offers in support of his
actual innocence claim as true, it does not undermine
confidence in the outcome of his trial for purposes of
Schlup. The new evidence Petitioner seeks to admit
in support of his actual innocence claim can be summarized as
follows: (1) testimony supporting the third-party defense
originally presented during Petitioner's trial; (2)
testimony that the state's eye witness, Misty Ross, lied
and had motive to lie; and (3) testimony that the state's
informant, George Ridley, lied and had motive to lie. Much of
this evidence was already presented during trial, and any new
evidence is not sufficient to undermine confidence in the
outcome of Petitioner's trial.
Petitioner presented his third-party defense to the jury. One
witness, Mark Sandon testified at trial that he heard Tim
Wallace confess to the crime. (RT 05/01/02 at 34:5-35:21.)
Petitioner now seeks to bolster Wallace's alleged
confession by introducing additional witness testimony that
Wallace may have committed the crimes and evidence that
Wallace may have had motive to commit the crimes. Most
notably, Petitioner offers testimony that one of the victims,
Charles Findley, may have been cooperating, or willing to
cooperate, with police regarding Wallace's drug
activities. Petitioner first offers the testimony of Keva
Armijo, who asserts that Wallace may have believed that
Ridley was “a snitch.” (See Doc. 73 at
30.) Petitioner acknowledges that Armijo's testimony was
available during his trial. (Doc. 40 at 67-70.) The remaining
evidence includes statements from Jared Dansby and hearsay
statements from Miranda Clark that imply that Wallace may
have suspected that Ridley was cooperating with police.
(See Doc. 73 at 33-34.)
Petitioner seeks to admit evidence that Ross had motive to
lie, and did lie, about the murders. Specifically, he offers
statements indicating that Ross was angry with Hampton and
that she later admitted that she did not actually witness the
murders. (See Id. at 31, 35.) A majority of this
evidence is not new-the trial jury heard evidence that Ross
may have had reason to be angry with Hampton. (See,
e.g., RT 4/30/02 at 45.) Furthermore, Ross's alleged
recantation is unreliable. One witness, who was available
during trial, allegedly heard Ross say that Hampton was
innocent, but also offers in her declaration that Ross told
so many different versions of the crimes that it is unclear
“if any of the stories were the truth.” (Doc.
42-9 at 2.) The other witnesses Petitioner seeks to present
do not suggest that Ross has recanted her testimony. Rather,
these witnesses state only that Ross may not have been in the
same room as the victims when the murders occurred. (Doc.
43-3 at 15, 18.)
Petitioner's proposed testimony regarding Ridley's
capacity for truthfulness and motive to lie is cumulative to
the information presented to the jury. As discussed further
regarding Claim 2 below, Ridley's testimony was
thoroughly impeached on cross examination, and the jury heard
that he would do anything to avoid incarceration. Petitioner
also offers hearsay testimony that Ridley recanted his trial
testimony, but in his own declaration, Ridley does not state
that his testimony was untruthful. (Doc. 43-3 at 26.)
this evidence together, it does not undermine confidence in
the outcome of Petitioner's trial. Petitioner's
actual innocence claim is founded on innuendo and hearsay.
While courts must consider all evidence supporting a
Schlup gateway claim, they must do so with
“due regard to any unreliability.”
Schlup, 513 U.S. at 328. Much of the evidence
Petitioner seeks to admit is not new or reliable. The
remainder is insufficient to undermine confidence in the
outcome his trial. The physical evidence corroborates
Ross's trial testimony regarding the manner in which the
victims were killed: Findley was shot in the head while
crouched on the floor, and Ramsdell was shot while lying in
bed. Furthermore, Petitioner has not offered compelling
evidence to undermine Ross's testimony that it was
Hampton who shot the victims. Because Petitioner has not
established that he could be entitled to relief based on the
evidence he seeks to present, a hearing is unnecessary to
deny his Schlup gateway claim.
even if the Court assumes, arguendo, that Petitioner
could meet the Schlup standard, Petitioner is not
entitled to habeas relief because, as explained below, each
of the procedurally defaulted claims Petitioner seeks to
revive fails on its merits.
Petitioner alleges that his rights to “due process, a
fair trial, effective assistance of counsel, and freedom from
cruel and unusual punishment” were violated by the
admission of Ridley's testimony. (Doc. 40 at 55.)
Specifically, he alleges (A) that the state violated
Brady v. Maryland, 373 U.S. 83 (1963) by failing to
disclose Ridley's presentence report to the defense; (B)
the state violated Napue v. Illinois, 360 U.S. 264,
269 (1959) by knowingly permitting Ridley to offer perjured
testimony; and (C) Petitioner's trial counsel was
ineffective for failing to properly address these issues
during the trial. (Id. at 57-65.) Petitioner
acknowledges, and the Court finds, that Claim 2 was not
presented in state court. Petitioner alleges that he can
overcome his procedural default of these claims under the
standards in Schlup and Martinez. Because
Claim 2 is without merit, however, the Court need not
determine whether Petitioner can overcome this procedural
default. See 28 U.S.C. § 2254(b)(2).
preliminary matter, Petitioner has requested evidentiary
development-in the form of discovery, a hearing, and
expansion of the record-in support of the merits of this
claim. (Doc. 73 at 39-40.) As this Court previously observed,
the new evidence Petitioner seeks to present “[a]t most
. . . undercuts the trial testimony of Misty Ross and George
Ridley . . . in a way that is cumulative to the impeachment
evidence in Hampton's possession at the time of
trial.” Hampton, 2016 WL 3653965, at *3. In
sum, and as further explained below, Petitioner has not
alleged facts that, if proved, would entitle him to relief.
Stanley v. Schriro, 598 F.3d 612, 624 (9th Cir.
2010) (citing Insyxiengmay, 403 F.3d at 670).
Petitioner's request for evidentiary development in
support of the merits of Claim 2 is therefore denied.
Claim 2A, Petitioner alleges that the state violated
Brady by suppressing Ridley's presentence
report. There are “three components or essential
elements of a Brady prosecutorial misconduct claim:
‘The evidence at issue must be favorable to the
accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the
State, either willfully or inadvertently; and prejudice must
have ensued.'” Banks v. Dretke, 540 U.S.
668, 691 (2004) (quoting Strickler, 527 U.S. at 281-
82). To establish prejudice, a petitioner must show that the
suppressed evidence was material to his case-that is, that
“there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different.” Browning v.
Baker, 875 F.3d 444, 464 (9th Cir. 2017) (quoting
United States v. Bagley, 473 U.S. 667, 682 (1985)).
“A ‘reasonable probability' is a probability
sufficient to undermine confidence in the outcome.”
Court previously addressed Petitioner's Brady
claim and concluded that the information included in
Ridley's presentence report was, at best, cumulative to
the evidence offered at trial. Hampton, 2016 WL
3653965, at *5-7. Because the evidence in Ridley's
presentence report was merely cumulative to the evidence
already presented to the jury, the state's alleged
failure to disclose the report does not undermine confidence
in the outcome of Petitioner's trial.
2A is meritless and is denied.
Claim 2B, Petitioner alleges that the state violated
Napue by offering perjured testimony. The Supreme
Court has held that “a conviction obtained through use
of false evidence, known to be such by representatives of the
State, must fall under the Fourteenth Amendment.”
Napue, 360 U.S. at 269. “A claim under
Napue will succeed when ‘(1) the testimony (or
evidence) was actually false, (2) the prosecution knew or
should have known that the testimony was actually false, and
(3) the false testimony was material.'” Sivak
v. Hardison, 658 F.3d 898, 908-09 (9th Cir. 2011)
(quoting Jackson v. Brown, 513 F.3d 1057, 1071-72
(9th Cir. 2008)).
asserts that he can establish falsity by pointing to
Ridley's assertion that he never engaged in violent
behavior toward his ex-wife. (Doc. 40 at 63.) The state
claims Ridley did not violate Napue by answering
“no” because “[i]n Ridley's opinion,
his actions with his ex-wife were not violent.” (Doc.
51 at 51.) The question under Napue, however, is not
whether the witness knew his testimony to be false, but
rather whether the state knew that the testimony was false
and thus had a constitutional duty to correct it. Cf.
Hayes v. Brown, 399 F.3d 972, 980-81 (9th Cir. 2005) (en
banc) (rejecting the argument that “it is
constitutionally permissible for [the prosecution] knowingly
to present false evidence to a jury in order to obtain a
conviction, as long as the witness used to transmit the false
information is kept unaware of the truth”).
alleges that Ridley stalked, threatened, and physically
abused his former wife, and that counsel for Petitioner and
the state were aware of this prior behavior. The defense
asked Ridley if any of his prior convictions involved
violence or whether he had ever acted violently toward his
wife. Ridley answered no to both questions. Ridley's
testimony was objectively misleading, if not false, which
arguably obligated the state to correct the testimony.
See Towery v. Schriro, 641 F.3d 300, 309 (9th Cir.
2010) (collecting cases in support of the view “that
accurate testimony could be delivered in a sufficiently
misleading context to make the evidence false for
Napue claim fails, however, because the error was
not material. See Jackson v. Brown, 513 F.3d 1057,
1075-76 (9th Cir. 2008) (“A jury's finding should
be overturned as a result of . . . [a] Napue
violation if and only if [it is] material.”).
“Instead of asking whether there was a
‘reasonable probability' of a different outcome, a
Napue violation requires a court to ask whether
there is ‘any reasonable likelihood that the false
testimony could have affected the judgment of the
jury.'” Libberton v. Ryan, 583 F.3d 1147,
1164 (9th Cir. 2009) (quoting Hayes, 399 F.3d at
state's failure to correct the record in this case was
not material. As this Court previously explained,
Hampton, 2016 WL 3653965, at *6-7, Ridley's
credibility was thoroughly impeached during Petitioner's
trial. He testified, for example, to his prior stalking
conviction, his desire not to return to prison, and his
willingness to “say whatever it took” to avoid
incarceration. Id. In sum, the jury already had
notice that Ridley may have been willing to lie, had motive
to lie, and had several prior felony convictions. There is no
reasonable likelihood that the jury's impression of
Ridley and his testimony would have been meaningfully altered
by the fact that Ridley gave false or misleading testimony
regarding his propensity for violence against his former
wife, and thus there is no reasonable probability that the
alleged perjury could have affected the jury's judgment.
Petitioner has failed to allege facts sufficient to establish
prejudice for purposes of Napue, Claim 2B is denied
Ineffective Assistance of Counsel
Petitioner alleges in Claim 2C that his counsels' failure
to obtain Ridley's presentence report was ineffective
assistance. (Doc. 40 at 64-65.) A claim of ineffective
assistance of counsel requires that Petitioner establish that
counsel's representation fell below an objective standard
of reasonableness and that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different. Strickland, 466 U.S. at 694.
has failed to establish a reasonable probability that defense
counsels' access to or use of Ridley's presentence
report would have had any impact on the result of
Petitioner's trial. As discussed above and in this
Court's prior order, trial counsel thoroughly discredited
Ridley during cross examination. There is no reasonable
likelihood that having Ridley's presentence report would
have made counsels' cross examination more effective, and
counsels' failure to obtain the presentence report does
not undermine confidence in the outcome of Petitioner's
2C is denied as meritless.
Petitioner next argues that his counsel were ineffective in
preparing and presenting the guilt phase of his trial due to
their failure “to call witnesses and present evidence
which would have raised reasonable doubt about Mr.
Hampton's guilt.” (Doc. 40 at 66.) Petitioner
requests discovery, expansion of the record, and an
evidentiary hearing in support of this claim. (Doc. 73 at
alleges that this claim was raised in state court. (Doc. 40
at 66.) Respondents state that some unspecified portion of
this claim was presented in state court and the remaining
portion of this claim is procedurally defaulted. (Doc. 51 at
52). In his PCR petition, Petitioner alleged that his trial
counsel was ineffective for failing to call Keva Armijo,
“Witness, ” Stephanie Janowitz, Jennifer Doer, and
Steve Duran, and for failing to present impeachment evidence
regarding Sean Geeslin, Tim Wallace, Charles Findley, and
Misty Ross. (Doc. 51-2 at 8-15.) The PCR court denied this
claim (Doc. 54-3 at 183- 84), and the Arizona Supreme Court
summarily denied discretionary review (see Id. at
246-53; Doc. 54-8 at 138).
this Court, Petitioner now similarly claims his counsel
failed to call Keva Armijo, Witness, Jennifer Doerr, and
Stephanie Lopez, but adds that his counsel “were also
ineffective in failing to present evidence from Bob Short,
Miranda Clark, Edna Mitchell, Jared Dansby, and Steve
Duran.” (Doc. 40 at 67-73.) Petitioner asserts that, to
the extent his claim in this Court exceeds the scope of his
claim in state court, his failure to raise all parts of his
claim is excused by his actual innocence under
Schlup, the state's suppression of material
evidence under Strickler, and the ineffectiveness of
his post-conviction counsel under Martinez.
(Id. at 66.)
alteration of this claim does not render it unexhausted.
Factual allegations not presented to a state court may render
a claim unexhausted if the allegations “fundamentally
alter” the legal claim presented and considered by the
state courts. Dickens v. Ryan, 740 F.3d 1302, 1318
(9th Cir. 2014) (citing Vasquez v. Hillery, 474 U.S.
254, 260 (1986)). New evidence fundamentally alters a claim
if it places the claim in a significantly different and
stronger evidentiary posture than it had in state court.
Id. (citing Aiken v. Spalding, 841 F.2d
881, 883, 884 n.3 (9th Cir. 1988)). Under Dickens,
the question of whether Martinez applies to Claim 3
hinges on whether the claim, as presented in these federal
proceedings, is fundamentally different from the one
presented in state court.
is not fundamentally different from the ineffective
assistance of counsel claim Petitioner raised in state court.
A petitioner may “develop additional facts supporting
[a] particular” claim of ineffective assistance of
counsel, but may not add “unrelated alleged instances
of counsel's ineffectiveness.” See Moormann v.
Schriro, 426 F.3d 1044, 1056 (9th Cir. 2005); see
also Gulbrandson v. Ryan, 738 F.3d 976, 992 (9th Cir.
2013). Petitioner alleged in state court that his counsel was
ineffective for failing to sufficiently investigate and
present evidence in the guilt phase of the trial, including
numerous lay witnesses. Petitioner presents the same claim
here but has made some adjustments regarding which specific
witnesses he now believes had relevant evidence his counsel
should have presented. This change does not render Claim 3
this claim was already fairly presented to the state court,
this Court looks to the last reasoned state court decision to
determine whether it was contrary to or an unreasonable
application of clearly established federal law or was based
on an unreasonable determination of fact under §
2254(d)(1) and (2). Because the Arizona Supreme Court
summarily denied review of this claim, this Court looks to
the last merits ruling, which was issued by the state PCR
court. See Robert Murray, 745 F.3d at 996
(“When a state court does not explain the reason for
its decision, we ‘look through' to the last
state-court decision that provides a reasoned explanation
capable of review.”). The PCR court concluded that
counsel was not ineffective for failing to investigate or
failing to introduce the proposed additional evidence.
(See Doc. 54-3 at 177-84.) The PCR court's
decision was not unreasonable for purposes of § 2254(d).
are obligated to presume that trial counsel may have had
strategic reasons for failing to call these additional
witnesses. Strickland, 466 U.S. at 689 (“[A]
court must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged
action ‘might be considered sound trial
strategy.'” (quoting Michel v. Louisiana,
350 U.S. 91, 101 (1955))). In particular, “strategic
choices made after thorough investigation of law and facts
relevant to plausible options are virtually
unchallengeable.” Id. at 690.
case, Petitioner acknowledges that the defense investigator
and lead counsel both knew of the witnesses and information
Petitioner now alleges should have been presented to the
jury. (Doc. 68 at 67.) He argues instead that because his
lead counsel, James Logan, did not inform his co-counsel,
Maria Schaffer, of this information, his counsels'
“investigation” was insufficient. This argument
is without merit.
Petitioner's lead counsel had access to the information
in question, he had discretion to make reasonable tactical
decisions regarding how to use it, see Strickland,
466 U.S. at 690-91, which would include whether to ask his
less experienced co-counsel to evaluate or use that
information. Whether the “investigation” was
reasonable is a separate question from whether the delegation
of tasks amongst the defense team was reasonable after the
investigation was complete. The record does not indicate that
Petitioner's counsel failed to investigate, and the PCR
court was not unreasonable for concluding that counsels'
investigation was constitutionally sufficient.
concluded that the investigation was sufficient, the PCR
court next noted that Petitioner's counsel may have had
many reasons, including possible bias, credibility, or
consistency problems, for not calling these additional
witnesses, and nothing in the record rebuts that presumption.
(Doc. 54-3 at 183.) This was not contrary to or an
unreasonable application of clearly established federal law.
Petitioner's lead counsel knew of the witnesses in
question and elected not to call them. Because he did not
recall specifics about his strategy in this case, the court
did not err by “entertain[ing] the range of possible
reasons [Petitioner's] counsel may have had for
proceeding as [he] did.” Leavitt v. Arave, 646
F.3d 605, 609 (9th Cir. 2011) (quoting Pinholster,
563 U.S. at 195) (internal quotation marks omitted).
Schaffer did testify that her failure to pursue these
witnesses was not a tactical decision, see Doe v.
Ayers, 782 F.3d 425, 445 (9th Cir. 2015)
(“Generally, we credit the statements of defense
counsel as to whether their decisions at trial were-or were
not- based on strategic judgments.”), Petitioner
himself notes that it was Logan, not Schaffer, who knew of
the potential witnesses and elected not to use them during
the trial. (See Doc. 68 at 67.) Petitioner calls
Logan's decision not to use this evidence
“puzzling, ” but, as the PCR court noted, there
were objectively reasonable tactical reasons not to pursue
the witnesses and evidence. For example, much of the proposed
testimony was based on rumors, reputations, and personal
relationships rather than direct knowledge or was cumulative
to evidence already introduced during trial, such as evidence
of drug use, evidence that Ross had motive to lie, and
evidence that someone else may have committed the crime.
(See Doc. 54-3 at 182, 184.)
relief is unavailable to Petitioner on this claim because the
Court cannot say that the state court unreasonably applied
clearly established federal law or made an unreasonable
determination of the facts when it concluded that
Petitioner's trial team reasonably investigated and
prepared for the guilt phase of trial. Because Petitioner has
failed to meet the § 2254(d) ...