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Murray v. Schriro

United States Court of Appeals, Ninth Circuit

March 17, 2014

ROBERT WAYNE MURRAY, Petitioner-Appellant,
DORA SCHRIRO, Warden, Respondent-Appellee

Argued and Submitted September 13, 2012, Las Vegas, Nevada

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Appeal from the United States District Court for the District of Arizona. D.C. No. 2:99-CV-01812-DGC. David G. Campbell, District Judge, Presiding.

Jennifer Y. Garcia (argued), Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender; and Jaleh Najafi, Assistant Federal Public Defender, Phoenix, Arizona, for Petitioner-Appellant.

Jeffrey A. Zick (argued), Assistant Attorney General; Terry Goddard, Attorney General; and Kent Cattani, Chief Counsel, Arizona Attorney General's Office, Phoenix, Arizona, for Respondents-Appellees.

Before: Johnnie B. Rawlinson, Jay S. Bybee, and Sandra S. Ikuta, Circuit Judges. Opinion by Judge Bybee.


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BYBEE, Circuit Judge.

Robert Wayne Murray (" Murray" ) was convicted in Arizona of two counts of first-degree murder and sentenced to death. The Arizona Supreme Court affirmed his conviction, and the United States Supreme Court denied Murray's petition for certiorari. Arizona courts denied Murray's request for post-conviction relief. In this habeas suit brought under the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA" ), Pub. L. No. 104-132, 110 Stat. 1214, we address three issues: (1) whether the Arizona state court's denial of Murray's Batson motion was " contrary to, or involved an unreasonable application of, clearly established Federal law" or was " based on an unreasonable determination of the facts," 28 U.S.C. § 2254(d); (2) whether the state court's denial of Murray's ineffective assistance of counsel claim was " contrary to, or involved an unreasonable application of, clearly established Federal law" or was " based on an unreasonable determination of the facts," id.; and (3) whether Murray " made a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), when the district court denied his " Motion for Leave to File a Second Amended Motion for Writ of Habeas Corpus," and if so, whether the district court abused its discretion in denying the motion. The district court for the

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District of Arizona denied Murray's petition for writ of habeas corpus.

We have jurisdiction pursuant to 28 U.S.C. § § 1291 and 2253, and we affirm.


A. Facts

1. Background

Murray's responsibility for the murders is not questioned. On May 14, 1991, LaVern Raduenz stopped at Grasshopper Junction, located near Kingman, Arizona, for coffee. Raduenz was an acquaintance of Dean Morrison and Jacqueline Appelhans, who lived at Grasshopper Junction and ran the store/restaurant situated there. Approaching the restaurant, Raduenz noticed that there was money lying on the ground outside, the restaurant door was open, and the cash register was displaced from its usual position. Raduenz then walked over to Morrison's house and discovered that the door to the house was also open, revealing Morrison's and Appelhans's bodies, clad in bathrobes, lying face down in the living room. Morrison had been shot twice with a.38 caliber pistol, in the neck and temple, and his skull had been shattered by a shotgun blast at close range. Appelhans had been shot at least twice in the back of the neck with a.22 caliber weapon and two.38 caliber slugs were removed from her skull.

Morrison's house had been ransacked. Drawers were open, items littered about, and a cushion cover was missing from the couch. In the store, the cash-register drawer had been removed and a roll of coins and loose change were strewn about the kitchen floor and throughout the courtyard. Although all of the facts pointed to robbery as the underlying motivation, $172 was found lying on a desk chair and Morrison's wallet, containing $800, was undisturbed in his pants' pocket. In the store, packs of Marlboro cigarettes were left in paper bags and the gasoline register was on. Outside on the store's patio were Morrison's glasses, a flashlight, and a set of keys. Law enforcement officers also discovered guns, bullets, and shell casings at the crime scene.

A Mohave County Sheriff's Department detective analyzed the tracks--footprints--at the crime scene. Besides those created by Raduenz and law enforcement officers, the detective identified four sets of tracks. Two sets of tracks were attributed to the victims, while the other two were determined to have been made by a pair of tennis shoes and a pair of western-style boots. Photographs of the tracks were taken, and some sketches made. Moreover, the detective determined that the tracks indicated that Morrison had resisted his attacker. Near some of the tracks attributed to Morrison and his assailant, law enforcement officers also found tire tracks attributed to a Grasshopper Junction tow truck, owned by Morrison, that was nowhere to be found at the crime scene.

Elsewhere, on the same morning, an Arizona Department of Public Safety officer happened upon a white 1988 Ford Tempo sedan bearing Alabama license plates. The officer's suspicions were aroused by the vehicle's behavior, leading the officer to run an inquiry on the vehicle's license plate number. The officer learned that the vehicle and its two occupants, Murray and his brother Roger Wayne Murray, were wanted in Alabama, suspected of having been involved in an assault and robbery and potentially armed and dangerous. As the officer attempted to pull over the vehicle, a high-speed chase ensued. The vehicle eventually left the highway, running a manned and armed

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roadblock, and only stopping when it left the road and came to an impassable wash.

The driver, Murray, threw from the vehicle a.38 caliber revolver containing four live bullets. A subsequent search of Murray's person yielded two spent shotgun shells and keys that were later determined to fit a 1991 Chevrolet pickup located on Morrison's property. His passenger, Roger Wayne Murray, threw a loaded.25 caliber semi-automatic pistol from the vehicle. The shell casings found at the crime scene and the casings recovered from Murray's pocket were determined to have been fired by the guns found in the Murray brothers' possession. The men were wearing tennis shoes and boots consistent with the tracks identified at Grasshopper Junction.

A subsequent vehicle inventory uncovered: a loaded twelve-gauge shotgun and live shells; a checkered couch cushion, matching the pattern of the couch in Morrison's house, and containing rolled coins stamped " Dean Enterprises, Grasshopper Junction, Kingman, Arizona, 86401" ; a blue pillowcase containing approximately $1400 in rolled coins and $3300 in cash; gloves; a receipt from the Holiday House Motel in Kingman, Arizona, dated May 12, 1991 (the Murray brothers had listed a 1988 Ford on the hotel registration card and had checked out on May 13, 1991); and a road atlas with the locations of two rural shops circled, including Grasshopper Junction. A scanner and connecting knob, fitting the empty bracket of the Grasshopper Junction tow truck that had left the tire tracks found at the crime scene--which was later discovered abandoned on westbound I-40--were also found in the vehicle.

Human blood and tissue was found on the Murray brothers' clothing, as well as on the cushion cover recovered from their vehicle. Blood tests indicated that the blood on Roger Wayne Murray's pants could have come from the victims or Murray; the blood on Murray's shirt could have come from the victims, but not from Roger Wayne Murray; and the blood on the cushion could have come from Appelhans, but not Morrison or either of the Murray brothers.

2. Jury Selection and Trial

The Murrays were arrested and indicted in Mohave County, Arizona, for the first-degree murders of Morrison and Appelhans, and the armed robbery of Morrison. During jury selection, after the trial court excused potential jurors for cause, only two Hispanic venire members remained: potential jurors Pethers and Alvardo. The prosecutor then used peremptory challenges to dismiss the two remaining Hispanic potential jurors. Murray's trial counsel objected to the prosecutor's use of the peremptory challenges and requested that the trial court conduct an inquiry under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

In light of the objection, the trial judge asked the prosecutor to respond. Regarding potential juror Pethers, the following colloquy ensued:

PROSECUTOR: Your Honor, first, as to Ms. Pethers, I don't believe that she is a Hispanic. I don't recall seeing that on her jury questionnaire, and I don't recall if she appeared to talk Hispanic to me. So, I am not sure that that's a showing--
THE COURT: I don't have the questionnaire in front of me.
DEFENSE: The questionnaire did indicate that she's Hispanic, Your Honor. I believe her maiden name was Garcia, but her first name is Christina.
THE COURT: I remember she said her mother's name was Garcia.

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Right. I am not sure that's Hispanic, Garcia, as opposed to Spanish, the amount I know about her mother from the prosecutor. I could be wrong, I don't know.
THE COURT: Well, of course, I can look at the questionnaires. I will have to take a recess to do that. But, let's assume for the time being that she is Hispanic and the defense is correct.
PROSECUTOR: Your Honor, the State recently did a major drug investigation of her mother and her mother's brother.... It's a very big case. Both of those defendants went to jail for a time. I'm not sure of the status of Mrs. Garcia. From what Mrs. Pethers said, the charge was dismissed. I believe there's been some sort of negotiated deal, but I am not positive about that. But, I know both those people were heavy into drugs. Both of the people around them were suspected of being in drugs. There's a forfeiture action proceeding against Garcia, Mallon. This being the daughter, I do not believe that she--I don't want her on the jury for those reasons, possible bias.

Regarding potential juror Alvardo, the prosecutor stated:

PROSECUTOR: Mr. Alvardo is Hispanic, and it was a close call on that strike. What I went on is, as Mr. Alvardo told the Court, he knows me, I know him. Not well. I'm going basically on my personal knowledge of Mr. Alvardo five or six years ago. I was dating a lady who was a nurse, going to various social functions, parties, whatnot. I met Mr. Alvardo probably a half a dozen times anyway, and I had discussions with him. The social functions at these parties, my recollection of Mr. Alvardo is he's a very, very nice person. He is too nice. You couldn't get him to disagree with you. He didn't want to hurt anybody. He is just indecisive, is my recollection of him. My strike on him is solely going back to my personal knowledge of meeting him numerous times four or six years ago.

The trial court denied Murray's Batson objections. The trial judge stated that based on his " own opinions about those particular jurors[,]... the reasons given by the State are sufficient... [and] consistent with my own assessments of those particular jurors." Subsequently, a jury was empaneled and the joint trial of the Murray brothers began.

At the conclusion of their joint jury trial, Murray and his brother were both found guilty of the first-degree murders of Morrison and Appelhans, and the armed robbery of Morrison.

3. Sentencing

Prior to Murray's sentencing hearing, the Mohave County Probation Department conducted a pre-sentence investigation. As part of that investigation, Murray was interviewed to prepare a social history. In that interview, Murray spoke of a childhood marred by an abusive father and his own general failure in all activities during his youth. Murray discussed his educational (both traditional and vocational) and employment background. Murray detailed his medical problems, including " dizzy spells and headaches," and the substance abuse that he began to engage in during his teenage years. Accompanying the pre-sentence investigation report was a record of Murray's prior criminal offenses.

In addition to the information contained in the presentence investigation report, Murray's trial counsel, O'Neill, prepared a Pre-Sentence Memorandum (" Memorandum" ) for the trial judge to consider at Murray's aggravation/mitigation hearing. The Memorandum included attachments containing Murray's prison records; interviews

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providing information regarding his employment history, including the interview of a former co-worker; and correspondence and interviews with a number of Murray's friends, family members, and acquaintances, detailing his personal and family background and difficult childhood. The dates on the letters and interviews indicate that O'Neill began investigating Murray's background prior to the conclusion of the trial's guilt phase. The Memorandum also chronicled details from Murray's dysfunctional childhood, such as his suffering repeated physical abuse at the hands of his father; witnessing his father's involvement in myriad illegal activities; and records showing that he was often absent from school.

At Murray's sentencing hearing, the trial judge stated that the Memorandum and attached documents would be taken into consideration. The evidence actually presented at the sentencing hearing, though, went even further. At that time, O'Neill entered into evidence: a psychiatric evaluation of Murray, conducted by Dr. Jack Potts; and letters from and interviews with family members, friends, classmates, and co-workers on Murray's behalf. Furthermore, Brenda Murray and Ruby Bradford, Murray's mother and aunt respectively, testified in person. Although from the record it appears that Angela Hall, Murray's younger sister, was also present and ready to testify, she did not testify at Murray's sentencing hearing.

Dr. Potts' psychiatric evaluation, which was also entered into evidence at the sentencing hearing, relied upon information contained in: the pre-sentence investigation report and corresponding attachments; letters written between the Murray brothers while incarcerated; Murray's criminal record from Alabama; interviews with Murray's family members, friends, classmates, and co-workers; police reports; and Murray's school records. Dr. Potts was aware of Murray's medical issues, such as fecal and urinary incontinence, as well as his history of intense headaches and seizures. Moreover, Dr. Potts' evaluation discussed the varied physical and psychological impacts of Murray's dysfunctional childhood. Considering all of these factors, Dr. Potts concluded that Murray's circumstances warranted a mitigated sentence.

Based upon the evidence presented at both the trial and sentencing hearing, the trial judge found that the state had proven three aggravating factors beyond a reasonable doubt. Moreover, the trial judge found that Murray had proven two mitigating factors by a preponderance of the evidence: that Murray was capable of rehabilitation and that Murray suffered from a dysfunctional childhood. The trial judge ruled that the mitigating factors were " not sufficiently substantial to outweigh the aggravating circumstances proved by the State and to call for leniency." Murray was sentenced to death.

B. Procedural History

Murray appealed his conviction and death sentence directly to the Arizona Supreme Court. After conducting an independent review, the Arizona Supreme Court affirmed Murray's conviction and death sentence, finding no constitutional infirmity. State v. Murray, 184 Ariz. 9, 906 P.2d 542 (Ariz. 1995) (in banc). Murray's subsequent motion for reconsideration was denied. Likewise, Murray's petition for certiorari was denied by the United States Supreme Court. Murray v. Arizona, 518 U.S. 1010, 116 S.Ct. 2535, 135 L.Ed.2d 1057 (1996). Murray then filed a petition for post-conviction relief (" PCR1" ) in Arizona state court. The state court denied the PCR1 and the Arizona Supreme Court summarily denied review.

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In light of the Supreme Court's intervening ruling in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), Murray moved to stay the federal habeas proceedings. The district court granted a stay limited to the sentencing-related claims and directed Murray to pursue additional state post-conviction relief for his potential Ring claim.

After the Arizona Supreme Court denied review, the district court's stay was lifted and Murray filed a " Motion for Leave to File a Second Amended Petition for Habeas Corpus." Murray's proposed Second Amended Petition attempted to include his previously withdrawn claims, as well as one new claim, in his federal habeas petition. The district court denied Murray's motion to amend. The district court denied Murray's First Amended Petition for Writ of Habeas Corpus on the merits and declined to issue a certificate of appealability. Murray filed a timely Notice of Appeal.


A. Certified Claims --Batson and Ineffective Assistance of Counsel

We review de novo the district court's denial of a petition for writ of habeas corpus. Lopez v. Thompson, 202 F.3d 1110, 1116 (9th Cir. 2000) (en banc). However, because Murray filed his federal habeas petition on October 7, 1999, after AEDPA's effective date, we are bound by AEDPA. See Valerio v. Dir. of the Dep't of Prisons, 306 F.3d 742, 763 (9th Cir. 2002) (en banc) (specifying April 24, 1996 as AEDPA's effective date).

AEDPA authorizes the grant of a state prisoner's petition for a writ of habeas corpus when the relevant state-court decision was (1) " contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court" or (2) " based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).

Under AEDPA, we review the last reasoned state-court decision. Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). 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. Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000). At times, however, no state-court decision furnishes a basis for the state court's underlying reasoning. In such a circumstance, our duty under AEDPA is not absolved. See Harrington v. Richter, 131 S.Ct. 770, 784-85, 178 L.Ed.2d 624 (2011) (presuming that a state court's unexplained, summary denial of the prisoner's habeas petition constituted an adjudication on the merits); see also Johnson v. Williams, 133 S.Ct. 1088, 1096, 185 L.Ed.2d 105 (2013) (applying Richter 's presumption to a state-court decision that addressed some, but not all, of a defendant's federal claims). " [T]he habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Richter, 131 S.Ct. at 784. To assess whether a petitioner has met this burden, we must ask " what arguments or theories supported or... could have supported... the state court's decision," and determine " whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of" the Supreme Court. Id. at 786. Thus, " 'when the state court does not supply reasoning for its decision,' we are instructed to engage in an 'independent review of the record' and ascertain whether the state court's decision was 'objectively unreasonable.'" Walker v. Martel,

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709 F.3d 925, 939 (9th Cir. 2013) (quoting Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000)). " Crucially, this is not a de novo review of the constitutional question," id., as " 'even a strong case for relief does not mean the state court's contrary conclusion was unreasonable,'" id. (quoting Richter, 131 S.Ct. at 786.).

1. Contrary to, or an Unreasonable Application of Clearly Established Federal Law Under § 2254(d)(1)

Clearly established Federal law " refers to the holdings, as opposed to the dicta, of th[e Supreme] Court's decisions as of the time of the relevant state-court decision." Lockyer v. Andrade, 538 U.S. 63, 71, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). Obviously, a state-court ...

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