Roseberry v. Ryan

         DEATH PENALTY CASE

          ORDER

          Neil V. Wake Senior United States District Judge.

         Table of Contents

         I. BACKGROUND ............................................................................................

         II. AEDPA ........................................................................................................... 3

         III. DISCUSSION ................................................................................................. 3

         A. Claims 1 and 2 ....................................................................................... 4

         1. Claim 1 ........................................................................................ 4

         2. Claim 2 ........................................................................................ 7

         B. Unexhausted, Defaulted Claims ........................................................... 8

         C. Exhausted Claims ................................................................................. 9

         1. Claim 11 ..................................................................................... 9

         2. Claim 20 ..................................................................................... 11

         3. Claim 24 (in part) ....................................................................... 12

         a. Claim 24(A)(2) ................................................................... 12

         b. Claim 24(A)(5) ................................................................... 13

         c. Claim 24(G) ........................................................................ 14

         d. Claim 24(H) ........................................................................ 16

         e. Claim 24(N) ........................................................................ 17

         D. Ineffective Assistance of Counsel Claims ........................................... 18

         1. Claim 25: Ineffective assistance of trial counsel ....................... 19

         a. Trial counsel repeated various prejudicial deficiencies throughout their representation .......................................... 21

         b. Trial counsel performed deficiently and prejudicially in investigating, presenting, and litigating Roseberry's case before trial .......................................................................... 30

         c. Trial counsel performed deficiently and prejudicially during jury selection ........................................................... 32

         d. Trial counsel performed deficiently and prejudicially during the guilt/innocence phase of Roseberry's trial. 36

         e. Trial counsel performed deficiently and prejudicially during the sentencing phases of Roseberry's trial ............. 42

         3(a) Evidence presented at sentencing ........................... 43

         3(b) New Evidence ......................................................... 45

         3(c) Analysis ................................................................... 47

         3(d) Conclusion .............................................................. 51

         f. Conclusion .......................................................................... 53

         2. Claim 26: Ineffective assistance of appellate counsel ............... 54

         a. Causal-nexus and Enmund/Tison claims ............................ 55

         b. Trial court errors ................................................................ 56

         c. Failure to challenge Arizona's death penalty statute ......... 57

         d. Failure with respect to the record and the case file ............ 58

         e. Appellate counsel performed ineffectively throughout his representation ..................................................................... 58

         3. Claim 28: ineffective assistance of PCR counsel ...................... 58

         E. Claims Challenging Arizona's Death Penalty Statute ......................... 59

         1. Claim 29 ..................................................................................... 59

         2. Claim 30 ..................................................................................... 59

         3. Claim 31 ..................................................................................... 59

         4. Claim 32 ..................................................................................... 60

         5. Claim 33 ..................................................................................... 60

         6. Claim 34 ..................................................................................... 60

         7. Claim 35 ..................................................................................... 61

         8. Claim 36 ..................................................................................... 62

         9. Claim 37 ..................................................................................... 62

         10. Claim 38 ..................................................................................... 63

         11. Claim 39 ..................................................................................... 63

         IV. CERTIFICATE OF APPELABILITY .......................................................... 63

         V. CONCLUSION .............................................................................................. 64

         Before the Court is the Petition for Writ of Habeas Corpus filed by Homer Roseberry, an Arizona death row inmate. (Doc. 32.) Respondents filed an answer to the petition and Roseberry filed a reply. (Docs. 45, 49.) For the reasons set forth below, and based on the Court's review of the briefings and the entire record herein, the petition is denied.

         I. BACKGROUND

         The Arizona Supreme Court, in State v. Roseberry, 210 Ariz. 360, 363, 111 P.3d 402, 405 (2005), summarized the facts underlying Roseberry's convictions and sentences as follows.

         In 1997, Roseberry and his wife, Diane, met members of a marijuana-smuggling ring known as the Pembertons. In late 1998 and early 1999, Roseberry was paid by the Pembertons to transport marijuana in his motorhome from Arizona to Michigan.

         In early October of 2000, Roseberry agreed to transport more than 1, 000 pounds of marijuana. When Roseberry arrived in Phoenix to pick up the load, the Pembertons informed him that Fred Fottler would accompany him on the trip. Several large duffle bags of marijuana were then loaded into the motorhome.

         On October 20, 2000, Roseberry set off from Phoenix. Pursuant to a scheme he devised with his friend Charles Dvoracek, Dvoracek traveled to Wickenburg, Arizona, where he was supposed to intercept and “steal” the motorhome and marijuana while Roseberry and Fottler were eating at a Denny's restaurant. In the early morning hours of October 21, 2000, Dvoracek parked his truck on the side of the road and waited for the motorhome to stop at Denny's. Instead of stopping at the restaurant, however, Roseberry drove back onto the highway and continued north toward his home in Nevada.

         Dvoracek followed the motorhome, which Roseberry soon pulled over onto the shoulder of the road. As Dvoracek pulled in behind, he heard two pops. Roseberry stepped out of the motorhome and told Dvoracek that he had “shot the guy” the Pembertons had sent to accompany him on the drug run.

         Roseberry shot Fottler in the back of the head. Fottler was still making gurgling noises, so Roseberry returned to the motorhome and shot him again. Roseberry and Dvoracek then wrapped Fottler's body in a blanket and dumped it into a gully on the side of the road.

         As Roseberry drove through Arizona, he threw his gun out the window of the motorhome. Roseberry and Dvoracek stopped in Kingman, Arizona, to remove other evidence of the crime. They took a blood-stained sheet from the motorhome and threw it over a fence. They also buried Fottler's wallet and moved one of the duffle bags of marijuana from the motorhome to Dvoracek's truck so Dvoracek could sell the drugs to raise money in case it became necessary to bail Roseberry out of jail.

         They arrived at Roseberry's home in Henderson, Nevada, on October 21, 2000, and put the motorhome and drugs into storage. Later that day, Roseberry confided to his wife that he killed Fottler so he could steal the marijuana and sell it himself. Roseberry told her that his story was going to be that “some Mexicans” with guns were in the motorhome and had killed Fottler while Roseberry was out of the vehicle.

         Diane Roseberry called her brother, Otis Bowman, and asked him to fly in from Indiana, which he did on October 22, 2000. Two drug dealers flew in with Bowman. They agreed to purchase about 300 pounds of marijuana, which Bowman later transported to Ohio in Roseberry's motorhome. Roseberry and Dvoracek split the money from the sale.

         Fottler's body was soon discovered. Investigative leads from United States Customs agents led Yavapai County Deputy Sheriffs to Roseberry, whose motorhome the customs agents had observed while surveilling a Tucson stash house.

         Roseberry was tried and convicted of first-degree murder and drug offenses. The jury then determined that the pecuniary gain aggravating factor, A.R.S. § 13-703(F)(5), had been proved. In the penalty phase, held six months later before the same jury, Roseberry presented mitigation evidence in support of five statutory and five non-statutory mitigating circumstances. The jury determined that the mitigation evidence was not sufficiently substantial to warrant leniency and returned a verdict of death for the murder. The court sentenced Roseberry to death.

         On direct appeal, the Arizona Supreme Court affirmed the convictions and sentences. Roseberry, 210 Ariz. 360, 111 P.3d 402. Roseberry filed a petition for post-conviction relief (“PCR”) in April 2012. The trial court denied the petition and the Arizona Supreme Court denied Roseberry's petition for review. State v. Roseberry (Roseberry II), 237 Ariz. 507, 353 P.3d 847 (2015).

         On December 22, 2015, Roseberry filed a sealed petition for writ of habeas corpus in this Court. (Doc. 23.) He filed an unsealed petition on August 8, 2016. (Doc. 32.) On January 20, 2018, the Court denied in part and granted in part Roseberry's request for evidentiary development. (Doc. 70.)

         II. AEDPA

         Federal habeas claims are analyzed under the framework of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Under the AEDPA, a petitioner is not entitled to habeas relief on any claim adjudicated on the merits in state court unless the state court's adjudication (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in state court. 28 U.S.C. § 2254(d).

         The Supreme Court has emphasized that “an unreasonable application of federal law is different from an incorrect application of federal law.” Williams v. Taylor, 529 U.S. 362, 410 (2000). Under § 2254(d), “[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011). The burden is on the petitioner to show “there was no reasonable basis for the state court to deny relief.” Id. at 98.

         III. DISCUSSION

         Roseberry's petition lists 47 claims.^[1] Some of the claims contain as many as 50 subclaims. All told, Roseberry alleges that his state court proceedings were plagued by more than 150 separate constitutional violations. He exhausted 30 of these claims in state court.

         A. Claims 1 and 2

         In Claim 1, Roseberry alleges that his rights were violated by the trial court's erroneous instruction that the jury could not consider mitigating evidence if Roseberry failed to prove a causal connection between the evidence and the crime. (Doc. 32 at 41.) In Claim 2, Roseberry alleges that the trial court unconstitutionally “usurp[ed] the jury's role to make the Enmund/Tison finding.” (Id. at 53.)

         Roseberry did not appropriately raise these claims on appeal in state court. He contends that the ineffective performance of appellate counsel excuses their default.^[2] (Doc. 32 at 41, 53.) The Court will deny the claims as meritless, irrespective of their procedural status. See 28 U.S.C. § 2254(b)(2).

         1. Claim 1

         The trial court instructed the jury at sentencing that if Roseberry “fails to prove causation between a proposed mitigating circumstance and the crime, the circumstance cannot be considered mitigating.” (RT 6/5/03, p.m., at 6-7.) This instruction was in error. The sentencer in a capital case may “not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Eddings v. Oklahoma, 455 U.S. 104, 110 (1982) (quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion)); see Tennard v. Dretke, 542 U.S. 274, 283 (2004) (finding unconstitutional a screening test that required a causal nexus between mitigating evidence and the offense).

         Respondents argue that this error was corrected by the Arizona Supreme Court's independent review of Roseberry's sentence.^[3] (Doc. 45 at 24.) The Court agrees. On direct appeal, the Arizona Supreme Court reviewed the aggravating and mitigating factors and concluded that “the evidence of mitigation is not sufficiently substantial to call for leniency.” Roseberry, 210 Ariz. at 374, 111 P.3d at 416. The court described the mitigating circumstances as “either weak or non-existent.” Id.

         Furthermore, on review of the PCR court's ruling denying relief on Roseberry's claim of ineffective assistance of appellate counsel, the Arizona Supreme Court “clarif[ied] that our independent review of Roseberry's death sentence considered all the mitigation evidence presented, without requiring a causal connection to the crimes, and we found it not sufficiently substantial to call for leniency.” Roseberry II, 237 Ariz. at 508, 353 P.3d at 848. With respect to the erroneous jury instruction, the court explained:

As to mitigation, Roseberry was not precluded from presenting any evidence. At the penalty phase trial, he presented evidence of five statutory and five non-statutory mitigating factors. The five statutory mitigating factors presented were causally connected to the crime. . . . The erroneous instruction would not have prevented the jury from considering these mitigating factors because of their close causal connection to the crimes.

Roseberry also presented evidence of five non-statutory mitigating factors. . . . This Court considered all mitigation evidence presented without regard to its connection to the crime (except as it might have affected the weight afforded to the evidence) and concluded on independent review that the mitigation evidence was not sufficiently substantial to warrant leniency. Roseberry, 210 Ariz. at 373-74 ¶¶ 77-79, 111 P.3d at 415-16.

Id. at 510, 353 P.3d at 850. The court concluded that “any deficiency in appellate counsel's performance was cured by this Court's independent review.” Id.

         This type of independent reweighing performed by the Arizona Supreme Court is constitutionally permissible in cases of capital sentencing error. See Clemons v. Mississippi, 494 U.S. 750, 753-54 (1990) (holding that appellate courts are able to fully consider mitigating evidence and are constitutionally permitted to affirm a death sentence based on independent re-weighing despite any error at sentencing); Richmond v. Lewis, 506 U.S. 40, 49 (1992) (holding that a state appellate court can cure a sentencing error in a capital case when “the state appellate court . . . actually perform[s] a new sentencing calculus”); see also Styers v. Ryan, 811 F.3d 292 (9th Cir. 2015) (affirming independent review by Arizona Supreme Court after Eddings error). Moreover, contrary to Roseberry's argument, Eddings error is not structural, and is subject to harmless-error review. McKinney v. Ryan, 813 F.3d 798, 821 (9th Cir. 2015).

         Roseberry argues that the Arizona Supreme Court's independent review incorporated causal-nexus error. Citing McKinney, 813 F.3d at 813, Roseberry asserts that “[d]espite the Arizona Supreme Court's token statement otherwise (ten years later), at the time of Mr. Roseberry's direct appeal in 2005 (when the court conducted its ‘independent review'), the Arizona Supreme Court regularly applied its own causal-nexus requirements.” (Doc. 32 at 47.)

         In Greenway v. Ryan, 866 F.3d 1094, 1095-96 (9th Cir. 2017), cert. denied, 138 S.Ct. 2625, the court explained, “We said in McKinney that the Arizona courts had ‘consistently' applied the causal-nexus test. . . . We did not say, however, that Arizona had always applied it.” See Apelt v. Ryan, 878 F.3d 800, 839-40 (9th Cir. 2017), cert. denied, ___ S.Ct. ___, 2019 WL 1172280; Martinez v. Ryan, 926 F.3d 1215, 1234 (9th Cir. 2019).

         In Roseberry's case, there is no indication that the Arizona Supreme Court applied a casual-nexus test. The opinion “on its face . . . does not expressly exclude any mitigation evidence or claim on the ground that it lacked causal relationship to the commission of the crime.” Greenway, 866 F.3d at 1097. The court “did not reject any mitigating factor, as a matter of law, on the theory that it was not related to the commission of the crime, ” id., or use any of the language found to be problematic in McKinney's discussion of cases where the Arizona Supreme Court improperly applied a causal-nexus test to mitigating evidence. McKinney, 813 F.3d at 813-17, 824-26. Roseberry's contention that the Arizona Supreme Court's independent review was tainted by causal-nexus error is unsupported.

         Finally, contrary to Roseberry's argument, the independent review carried out the Arizona Supreme Court did not violate Ring v. Arizona, 536 U.S. 584 (2002). Ring held that Sixth Amendment required that a jury, not a judge, find the aggravating circumstance necessary for imposition of death penalty. Id. at 609. Here, a jury found that the pecuniary gain aggravating factor had been proved, making Roseberry eligible for a death sentence under Arizona law. The instructional error did not implicate the holding in Ring.

         The independent review carried out by the Arizona Supreme Court cured the causal-nexus instructional error. Claim 1 is denied.

         2. Claim 2

         The jury convicted Roseberry of first-degree murder but did not come to a unanimous decision regarding the theory of first-degree murder, with 10 jurors finding that the State had proven only felony murder. (ROA 163.)

         Under Tison v. Arizona, 481 U.S. 137 (1987), and Enmund v. Florida, 458 U.S. 782 (1982), the trier of fact, in death penalty cases based on felony-murder, is required to make a finding that the defendant was a major participant in the felony committed and was recklessly indifferent to human life. Tison, 481 U.S. at 158. In Roseberry's case, the trial court made that finding, contrary to Arizona law.^[4] (ROA 213.)

         As Respondents note, the United States Supreme Court has never held that the Enmund/Tison determination must be made by the jury. A finding of the requisite culpability may be made by a jury, the trial judge, or an appellate court. Cabana v. Bullock, 474 U.S. 376, 392 (1986) (“[T]he Eighth Amendment does not require that a jury make the findings required by Enmund.”), overruled on other grounds by Pope v. Illinois, 481 U.S. 497 (1987). Roseberry's federal constitutional rights were not violated.

         In addition, Roseberry was not prejudiced when the trial court made the Enmund/Tison finding. The evidence was overwhelming, as the trial court found (ROA 213), that it was Roseberry who shot and killed Fottler. See also Roseberry, 210 Ariz. at 369, 111 P.3d at 411 (“The jury found beyond a reasonable doubt that Roseberry was motivated to kill Fottler by the desire for pecuniary gain, and that finding is well supported.”); Roseberry II, 237 Ariz. at 510, 353 P.3d at 850 (“[T]he evidence was overwhelming that Roseberry killed Fottler so that he could steal the load of marijuana.”). Claim 2 is denied.

         B. Unexhausted, Defaulted Claims

         Roseberry did not raise the following claims in state court: Claims 3, 4, 6-10, 12- 17, 19, 21, 22, 24 (in part), 27, and 40-47. The claims are procedurally defaulted. Roseberry contends their default is excused by the ineffective assistance of appellate or PCR counsel.

         Martinez v. Ryan, 566 U.S. 1 (2012), held that “[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.” 566 U.S. at 8. Martinez applies only to claims of ineffective assistance of trial counsel; it has not been expanded to other types of claims. See 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 p rocedurally defaulted Brady claim, holding that only the Supreme Court could expand the application of Martinez to other areas); see also 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).

         None of these defaulted claims alleges ineffective assistance of trial counsel. Therefore, the failure of PCR counsel to raise the claims does not excuse their default under Martinez. In addition, before ineffective assistance of appellate counsel may be used as cause to excuse a procedural default, the particular ineffective assistance allegation must first be exhausted in state court as an independent claim.^[5] See Edwards v. Carpenter, 529 U.S. 446, 453 (2000) (“an ineffective-assistance-of-counsel claim asserted as cause for the procedural default of another claim can itself be procedurally defaulted”); Murray v. Carrier, 477 U.S. 478, 489-90 (1986) (explaining that counsel's ineffectiveness in failing to preserve a claim for review in state court can excuse a procedural default only if that ineffectiveness itself constitutes an independent constitutional claim); Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988).

         Roseberry did not raise these allegations of ineffective assistance of appellate counsel in his PCR petition. Therefore, the failure of appellate counsel to raise these claims does not excuse their default.

         Claims 3, 4, 6-10, 12-17, 19, 21, 22, 24 (in part), 27, and 40-47 remain procedurally defaulted and are barred from federal review.^[6]

         C. Exhausted Claims

         Claims 11, 20, and parts of Claim 24 were denied on the merits by the Arizona Supreme Court on direct appeal.

         1. Claim 11

         In Claim 11, Roseberry alleges that “[o]n information and belief, jurors failed to consider any of the mitigating circumstances proven by a preponderance of the evidence.” (Doc. 32 at 81.) In support of this allegation, Roseberry argues that the jury was improperly instructed. (Doc. 32 at 81-83; see Doc. 49 at 45-49.) He also asserts that the jurors did not understand the concept of mitigation because of trial counsel's poor presentation and that some jurors were not open to considering mitigation because of counsel's poor performance during jury selection. (Id.)

         The Arizona Supreme Court denied this claim. Roseberry, 210 Ariz. at 373, 111 P.3d at 415. The court first rejected Roseberry's argument “that because the trial judge found the three mitigating factors-lack of prior convictions, medical problems, and childhood difficulties-when sentencing Roseberry for the drug offenses, the jury must have failed to consider these factors for the murder offense.” The court explained:

Roseberry does not say why he believes the jury did not consider any mitigating evidence. Because there is no special verdict on mitigation, we cannot tell whether the jury failed to find the mitigating factors, or whether it did find some or all of them to exist, but concluded that they did not outweigh the aggravating factor of pecuniary gain. . . . That the judge may have found certain mitigating factors does not mean that the jury had to find the same factors, as long as the jury's findings were supported by reasonable evidence. Roseberry has not shown that any jury finding was unsupported, nor has he shown any failure by the jury to perform its duty. Indeed, he has not shown that the jury did not find the same factors the trial judge found.

Id. (footnote omitted). The court then explained that the jurors were properly instructed:

[T]he record shows that they were comprehensively instructed to consider all of the evidence presented at the trial, including “factors in fairness and mercy [that] may support a sentence other than death.” We presume that the jury followed those instructions.

Id. (citations omitted).

         Finally, the court noted that “the penalty verdict form, signed by the jury foreman and read in open court, states that the jury ‘considered all the facts and circumstances of this case.'” Id.

         Roseberry does not attempt to argue that the Arizona Supreme Court's decision was contrary to or an unreasonable application of clearly established law. (See Doc. 31 at 81- 83.) As the court found, there was no basis to conclude the jurors did not consider all the evidence at sentencing, especially when the verdict form said that they did. See Richardson v. Marsh, 481 U.S. 200, 211 (1987) (explaining that jurors are presumed to follow their instructions). Roseberry fails to meet his burden of showing “there was no reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98.

         Moreover, as already noted, any error was corrected by the independent reweighing carried out by the Arizona Supreme Court. Claim 11 is denied.

         2. Claim 20

         Roseberry alleges that there was insufficient evidence to prove the pecuniary gain aggravating factor. (Doc. 32 at 99.) The Arizona Supreme Court denied this claim, holding that, “Reasonable evidence clearly supports the jury's finding that the receipt of pecuniary gain served as a motive, cause, or impetus for the murder of Fottler.” Roseberry, 210 Ariz. at 369, 111 P.3d at 411. The court explained:

[T]he evidence showed that Fottler was killed so that Roseberry could steal and sell the marijuana. . . . Roseberry had admitted during the trial that he started transporting marijuana for the Pembertons because he needed the money. Roseberry also told his wife and Dvoracek that he was going to make a lot of money by selling the marijuana himself after getting rid of Fottler.

The pecuniary gain motive is further illustrated by the evidence that Roseberry and his co-conspirators wasted no time in setting up a deal to sell some of the marijuana. Indeed, they called Bowman the very day Fottler was killed. Later, Roseberry and Dvoracek arranged to have Berkowitz transport marijuana to Ohio, and they split the proceeds of those sales.

. . . Indeed, it is difficult to imagine any other reason for Roseberry to kill Fottler. Roseberry admitted that he had met Fottler only once before the ill-fated drug run, and that meeting lasted just a few minutes. There was no evidence of animus toward Fottler and no evidence that hostility erupted between the two men during their motorhome trip.

Id.

         Habeas review of a state court's application of an aggravating factor “is limited, at most, to determining whether the state court's finding was so arbitrary or capricious as to constitute an independent due process or Eighth Amendment violation.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990). In making that determination, the reviewing court must inquire “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found” that the factor had been satisfied. Id. at 781 (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

         A finding that a murder was motivated by pecuniary gain for purposes of § 13- 703(F)(5) must be supported by evidence that pecuniary gain was the impetus, not merely the result, of the murder. See Moormann v. Schriro, 426 F.3d 1044, 1054 (9th Cir. 2005); see also State v. Cañez, 202 Ariz. 133, 159, 42 P.3d 564, 590 (2002) (killing the victim and sole witness of a robbery is evidence of an intent to facilitate escape or hinder detection and provides sufficient evidence that the catalyst for the robbery was pecuniary gain), supplemented by 205 Ariz. 620, 74 P.3d 932 (2003), and abrogation on other grounds recognized by McKinney, 813 F.3d at 815-26. Killing for the purpose of financial gain is sufficient to establish the aggravator. See State v. Walton, 159 Ariz. 571, 588, 769 P.2d 1017, 1034 (1989).

         A rational trier of fact could have determined, as the jury, the trial court, and the Arizona Supreme Court did, that Roseberry was motivated to murder Fottler by the desire for pecuniary gain. Roseberry suggests the possibility of other motives for the murder, such as his desire to protect his wife and family. (Doc. 32 at 101.) The existence of a less-persuasive alternative motive is not sufficient to show that no ...