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Andriano v. Ryan

United States District Court, D. Arizona

August 30, 2018

Wendi Elizabeth Andriano, Petitioner,
Charles L. Ryan, et al., Respondents.


          Susan R. Bolton United States District Judge


         Before the Court is Petitioner Wendi Andriano's Motion for Evidentiary Development. (Doc. 45.) Respondents filed a response in opposition to the motion and Andriano filed a reply. (Docs. 60, 63.) The motion is denied as set forth herein.

         I. BACKGROUND

         In 2004, Andriano was convicted of one count of first-degree murder and sentenced to death for the killing of her terminally ill husband. The following facts are taken from the opinion of the Arizona Supreme Court affirming the conviction and sentence, State v. Andriano, 215 Ariz. 497, 161 P.3d 540 (2007), and from the Court's review of the record.

         At about 2:15 a.m. on October 8, 2000, Andriano called Chris, a coworker who lived at the same apartment complex, and asked her to watch the Andrianos' two children while she took her husband, Joe, to the doctor. Andriano met Chris outside the apartment and told her Joe was dying. She also stated that she hadn't called 911 yet. Chris urged her to do so.

         Upon entering the apartment, Chris found Joe lying on the living room floor in the fetal position. He had vomited, appeared weak, and was having difficulty breathing. While Andriano was in another room calling 911, Joe told Chris that he needed help and had “for a long time.” He asked why it was taking 45 minutes for the paramedics to show up.

         Chris heard the paramedics arrive and went outside to direct them to the apartment. As the paramedics were unloading their equipment, Andriano came out of the apartment screaming at them to leave. She returned to the apartment and slammed the door. Chris and the paramedics knocked on the door but no one answered. The Phoenix Fire Department called the Andrianos' home telephone in an attempt to get Andriano to open the door. They notified the paramedics that contact had been made with someone in the apartment who would come out to speak with them. Instead of coming out the front door, which opened onto the living room, Andriano went out through the back door, climbed over the patio wall, and walked around the apartment building to the front door. She had changed her shirt and her hair was wet. She told the paramedics that Joe was dying of cancer and had a do-not-resuscitate order. The paramedics left without entering the apartment.

         Andriano called 911 again at 3:39 a.m. The same paramedics responded. When they entered the apartment they found Joe lying dead on the floor in a pool of blood. As determined by the medical examiner, Joe had sustained brain hemorrhaging caused by more than 20 blows to the back of his head. He had also suffered a stab wound to the side of his neck that severed his carotid artery. A broken bar stool covered in blood was found near Joe's body, along with pieces of a lamp, a bloody kitchen knife, a bloody pillow, and a belt.

         Trace amounts of the poison sodium azide were found in Joe's blood and gastric contents, and in the contents of a pot and two soup bowls in the kitchen. Police also found gelatin capsules filled with sodium azide.

         Defensive wounds on Joe's hands and wrists indicated that he was conscious for at least part of the attack. Blood spatter and other evidence indicated that he was lying down during the attack. The absence of arterial spurting on the belt and the knife indicated that the items were placed beside Joe's body after he died.

         At trial, Andriano testified that Joe, who was suffering from terminal cancer and had been contemplating suicide, decided to take his life that night and swallowed several of the sodium azide capsules. The poison failed to kill him, however, and he became verbally abusive, accusing Andriano of infidelity and violently attacking her when she admitted to an affair. Andriano testified that Joe tried to strangle her with a telephone cord but she was able to cut the cord with a knife. When Joe picked up the knife she struck him with the bar stool in self-defense. She then hid in the bathroom but when she returned Joe still had the knife in his hand and was threatening to kill himself. She testified that she tried to stop him and during the resulting struggle his neck was cut.

         Andriano also presented evidence, including expert testimony, that she was a victim of domestic abuse. Andriano testified that throughout the course of their marriage Joe had been emotionally, physically, and sexually abusive. The expert testified about the psychological effects of domestic abuse.

         The jury found Andriano guilty of first-degree murder. During the penalty phase, the jury found one aggravating factor: that the murder had been committed in an “especially cruel manner” under A.R.S. § 13-751(F)(6). The jury then found that the evidence presented in mitigation was not sufficiently substantial to call for leniency and returned a verdict of death.

         Andriano sought post-conviction relief (“PCR”) in state court, filing a petition raising claims of ineffective assistance of trial and appellate counsel.[1] (PCR pet., Doc. 28-1, Ex. OOOOO.) The court dismissed the majority of Andriano's claims as precluded or not colorable, but granted a hearing on her penalty-phase ineffectiveness and conflict-of-interest claims. (ME 10/30/12.)[2] After an eight-day evidentiary hearing, the court dismissed both claims. (ME 11/1/14.) The Arizona Supreme Court denied review without comment.

         Andriano filed a petition for writ of habeas corpus in this Court on March 6, 2017. (Doc. 17.) She filed the pending motion for evidentiary development on December 4, 2017. (Doc. 45.)


         A. 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 (Terry) v. Taylor, 529 U.S. 362, 410 (2000). Under § 2254(d), “[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011).

         In Cullen v. Pinholster, 563 U.S. 170, 181 (2011), the Court reiterated that “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” See Murray (Robert) v. Schriro, 745 F.3d 984, 998 (9th Cir. 2014) (“Along with the significant deference AEDPA requires us to afford state courts' decisions, AEDPA also restricts the scope of the evidence that we can rely on in the normal course of discharging our responsibilities under § 2254(d)(1).”). However, Pinholster does not bar evidentiary development where the petitioner has satisfied § 2254(d) based solely on an assessment of the state court record. See Crittenden v. Chappell, 804 F.3d 998, 1010 (9th Cir. 2015); Sully v. Ayers, 725 F.3d 1057, 1075 (9th Cir. 2013).

         For claims not adjudicated on the merits in state court, federal review is generally not available when the claims have been denied pursuant to an independent and adequate state procedural rule. Coleman v. Thompson, 501 U.S. 722, 750 (1991). In Arizona, there are two avenues for petitioners to exhaust federal constitutional claims: direct appeal and PCR proceedings. Rule 32 of the Arizona Rules of Criminal Procedure governs PCR proceedings and provides that a petitioner is precluded from relief on any claim that could have been raised on appeal or in a prior PCR petition. Ariz. R. Crim. P. 32.2(a)(3).

         For unexhausted and defaulted claims, “federal habeas review . . . is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. Coleman further held that ineffective assistance of counsel in PCR proceedings does not establish cause for the procedural default of a claim. Id.

         In Martinez v. Ryan, 566 U.S. 1 (2012), however, the Court established a “narrow exception” to the rule announced in Coleman. Under Martinez, a petitioner may establish cause for the procedural default of an ineffective assistance claim “by demonstrating two things: (1) ‘counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland . . .' and (2) ‘the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.'” Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012) (quoting Martinez, 566 U.S. at 14). The Ninth Circuit has explained that “PCR counsel would not be ineffective for failure to raise an ineffective assistance of counsel claim with respect to trial counsel who was not constitutionally ineffective.” Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012).

         Martinez applies only to claims of ineffective assistance of trial counsel; it has not been expanded to other types of claims. Pizzuto v. Ramirez, 783 F.3d 1171, 1177 (9th Cir. 2015) (explaining that the Ninth Circuit has “not allowed petitioners to substantially expand the scope of Martinez beyond the circumstances present in Martinez”); Hunton v. Sinclair, 732 F.3d 1124, 1126-27 (9th Cir. 2013) (denying petitioner's argument that Martinez permitted the resuscitation of a procedurally defaulted Brady claim, holding that only the Supreme Court could expand the application of Martinez to other areas); see Davila v. Davis, 137 S.Ct. 2058, 2062-63 (2017) (explaining that the Martinez exception does not apply to claims of ineffective assistance of appellate counsel).

         B. Evidentiary Development

         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. Whether a petitioner has established “good cause” for discovery requires a habeas court to determine the essential elements of the petitioner's substantive claim and evaluate whether “specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief.” Bracy, 520 U.S. at 908-09 (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)) (internal quotation marks omitted).

         An evidentiary hearing is authorized under Rule 8 of the Rules Governing § 2254 Cases. Pursuant to § 2254(e)(2), however, a federal court may not hold a hearing unless it first determines that the petitioner exercised diligence in trying to develop the factual basis of the claim in state court. See Williams (Michael) v. Taylor, 529 U.S. 420, 432 (2000). If the failure to develop a claim's factual basis is attributable to the petitioner, a federal court may hold an evidentiary hearing only if the claim relies on (1) “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable” or (2) “a factual predicate that could not have been previously discovered through the exercise of due diligence.” 28 U.S.C. § 2254(e)(2). In addition, “the facts underlying the claim [must] be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found the [petitioner] guilty of the underlying offense.” Id.

         When the factual basis for a claim has not been fully developed in state court, a district court first determines whether the petitioner was diligent in attempting to develop the record. See Baja v. Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999). The diligence assessment requires a determination of whether a petitioner “made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court.” Williams (Michael), 529 U.S. at 435. For example, when there is information in the record that would alert a reasonable attorney to the existence and importance of certain evidence, the attorney “fails” to develop the factual record if he does not make reasonable efforts to investigate and present the evidence to the state court. Id. at 438-39, 442. The Ninth Circuit has explained that “a petitioner who ‘knew of the existence of [ ] information' at the time of his state court proceedings, but did not present it until federal habeas proceedings, ‘failed to develop the factual basis for his claim diligently.'” Rhoades v. Henry, 598 F.3d 511, 517 (9th Cir. 2010) (quoting Cooper-Smith v. Palmateer, 397 F.3d 1236, 1241 (9th Cir. 2005), overruled on other grounds by Daire v. Lattimore, 812 F.3d 766 (9th Cir. 2016)).

         An evidentiary hearing is not required if the issues can be resolved by reference to the state court record. Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998) (“It is axiomatic that when issues can be resolved with reference to the state court record, an evidentiary hearing becomes nothing more than a futile exercise.”); see Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (“[I]f the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.”). Likewise, “an evidentiary hearing is not required if the claim presents a purely legal question and there are no disputed facts.” Beardslee v. 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).

         Section 2254(e)(2) limits a petitioner's ability to present new evidence through a Rule 7 motion to the same extent that it limits the availability of an evidentiary hearing. See Cooper-Smith, 397 F.3d at 1241 (applying § 2254(e)(2) to expansion of the record when intent is to bolster the merits of a claim with new evidence); Holland v. Jackson, 542 U.S. 649, 652-53 (2004) (per curiam). Accordingly, when a petitioner seeks to introduce new affidavits and other documents never presented in state court, he must either demonstrate diligence in developing the factual basis in state court or satisfy the requirements of § 2254(e)(2).

         III. ANALYSIS

         Andriano seeks evidentiary development on 26 claims or subclaims in her habeas petition, including both exhausted and unexhausted claims. A number of the claims allege ineffective assistance of counsel. Because these require a different analytical framework, the Court's discussion proceeds as follows.

         A. Non-Ineffective Assistance of Counsel Claims

         1. Exhausted claims

         Claim 4:

         Andriano alleges that the trial court violated her due process rights by admitting evidence of her extramarital affairs and her attempts to fraudulently obtain life insurance on her husband. (Doc. 17 at 87-101.) Andriano seeks to depose the prosecutor and requests a subpoena duces tecum to the Maricopa County Attorney's Office for his personnel file. (Doc. 45 at 21-25.) She also requests expansion of the record to include appellate counsel Peg Green's notes; documents relating to the Arizona Capital Representation Project's assistance with Andriano's appeal; declarations from Green, ethics attorney Karen Clark, sodium-azide expert Dr. Eric Betterton, trial witness James Yost, and trial counsel Patterson[3]; files relating to a bar complaint against the prosecutor; media reports about the prosecutor; and portions of the Phoenix Police Departmental Report concerning this case. (Id., & Ex's 10, 11, 25, 28-34.) Andriano also seeks an evidentiary hearing. (Id.)

         The Arizona Supreme Court rejected this claim on the merits. Andriano, 215 Ariz. at 502-03, 161 P.3d at 545-46. The court held that the evidence was admissible under Rule 404(b) of the Arizona Rules of Evidence and was not unfairly prejudicial. Id. Unless this ruling is contrary to or an unreasonable application of clearly established federal law under 28 U.S.C. § 2254(d)(1), evidentiary development is prohibited. The ruling does not meet that standard.

         State court evidentiary rulings cannot serve as a basis for habeas relief unless the asserted error rises to the level of a federal constitutional violation. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). “The admission of evidence does not provide a basis for habeas relief unless it rendered the trial fundamentally unfair in violation of due process.” Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (internal quotation marks and citation omitted); see Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991). The AEDPA further restricts the availability of federal habeas review for evidentiary claims because the Supreme Court “has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ.” Holley, 568 F.3d at 1101; see Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003) (“There is no clearly established Supreme Court precedent which holds that a state violates due process by permitting propensity evidence in the form of other bad acts evidence.”). Because it does not satisfy § 2254(d)(1), Claim 4 is denied as without merit.

         Moreover, whether or not the Arizona Supreme Court's ruling satisfies § 2254(d), evidentiary development is not warranted because the claim presents a legal question and can be resolved on the state court record. Beardslee, 358 F.3d at 585-86; Totten, 137 F.3d at 1176.

         Claim 17:

         Andriano alleges that A.R.S. § 13-751(F)(6), the especially cruel aggravating factor, is facially vague and overbroad. (Doc. 17 at 155-65.) She seeks discovery in the in the form of a subpoena to each Arizona county attorney's office. (Doc. 45 at 41-42.) The request is denied.

         The Arizona Supreme Court rejected this claim on direct appeal. Andriano, 215 Ariz. at 505-06, 161 P.3d at 548-49. Pinholster bars evidentiary development unless the claims satisfies § 2254(d). It does not.

         The United States Supreme Court has upheld the (F)(6) aggravating factor against allegations that it is vague and overbroad, rejecting a claim that Arizona has not construed the factor in a “constitutionally narrow manner.” See Lewis v. Jeffers, 497 U.S. 764, 774-77 (1990); Walton v. Arizona, 497 U.S. 639, 649-56 (1990), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 556 (2002). Andriano's challenge to the (F)(6) factor is without merit, and Claim 17 is denied.

         Claim 22:

         Andriano alleges that the death penalty is categorically cruel and unusual punishment. (Doc. 17 at 220-23.) She seeks to expand the record with reports questioning the deterrent value of capital punishment. (Doc. 45 at 56-57, & Ex's 38-40.) The request is denied.

         The Arizona Supreme Court rejected this claim on direct appeal. Andriano, 215 Ariz. at 513, 161 P.3d at 556. Pinholster bars evidentiary development unless the claim satisfies § 2254(d), which Claim 22 does not. There is no clearly established federal law supporting the claim that the death penalty is categorically cruel and unusual punishment or that it serves no purpose. See Gregg v. Georgia, 428 U.S. 153, 187 (1976); Hall v. Florida, 134 S.Ct. 1986, 1992-93 (2014). Claim 22 is denied.

         Claim ...

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