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Hampton v. Ryan

United States District Court, D. Arizona

February 27, 2019

Tracy Allen Hampton, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

         DEATH PENALTY CASE

          ORDER

          Honorable Roslyn O. Silver Senior United States District Judge

         Before the Court is Petitioner Tracy Allen Hampton's amended petition for writ of habeas corpus. (Doc. 40.)[1] 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.

         I. BACKGROUND

         In 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.

         On May 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.

         Early 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.

         Hampton 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.

         Hampton 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 thing.”

         The 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.

         On August 18, 2011, Hampton filed an amended petition for post-conviction relief (“PCR”). He raised six claims:

1. Ineffective assistance of counsel at the guilt phase of trial;
2. Ineffective assistance of counsel at the sentencing phase of trial;
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.)

         The 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.)

         The 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.)

         Hampton 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).

         II. APPLICABLE LAW

         Federal 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.

         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)(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 (2004)).

         Under § 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.

         A. Exhaustion and Procedural Default

          The 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).

         A claim 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).

         In 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).

         Procedural 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.

         Generally, “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).

         Because 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).

         For 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).

         To 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. 2017).

         To 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.

         The 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 counsel).

         Alternatively, 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.” Id.

         B. Evidentiary Development

         Under 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.

         In 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).

         To 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.

         First, 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.

         Second, 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).

         Moreover, 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. 1992).

         Finally, 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).

         III. ANALYSIS

         The Petition sets forth 39 claims for relief. For the reasons set forth below, those claims are denied.

         A. Actual Innocence

         In 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[2] claim). The state argues that this claim is not cognizable and without merit. (Doc. 51 at 33.)

         The 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 omitted)).

         Petitioner's 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.

         Claim 1 is denied.

         Petitioner 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.

         Petitioner 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)).

         Even 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.

         First, 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.)

         Second, 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.)

         Third, 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.)

         Taking 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.

         Moreover, 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.

         1. Claim 2

          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).

         As a 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.

         a. Brady

          In 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.” Id.

         This 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.

         Claim 2A is meritless and is denied.

         b. Napue

          In 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)).

         Petitioner 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”).

         Petitioner 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 purposes”).

         Petitioner's 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 985).

         The 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.

         Because Petitioner has failed to allege facts sufficient to establish prejudice for purposes of Napue, Claim 2B is denied as meritless.

         c. Ineffective Assistance of Counsel

         Finally, 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.

         Petitioner 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 trial.

         Claim 2C is denied as meritless.

         2. Claim 3

          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 37-49.)

         Petitioner 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, ”[3] 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).

         Before 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.)

         Petitioner's 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.

         Claim 3 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 unexhausted.

         Because 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).

         Courts 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.

         In this 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.

         Once 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.

         Having 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).

         Although 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.)

         Habeas 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) ...


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