                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 17 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

THEODORE WASHINGTON,                            No.    05-99009

                Petitioner-Appellant,           D.C. No. CV-95-02460-JAT

 v.
                                                MEMORANDUM*
CHARLES L. RYAN, Warden,

                Respondent-Appellee.

                   Appeal from the United States District Court
                            for the District of Arizona
                   James A. Teilborg, District Judge, Presiding

                          Submitted September 26, 2018**
                              Pasadena, California

Before: GOULD, CALLAHAN, and N.R. SMITH, Circuit Judges.

      Arizona state prisoner Theodore Washington was sentenced to death in 1987

for the first degree murder of Sterleen Hill. Washington appeals the district court’s

denial of his petition for writ of habeas corpus under 28 U.S.C. § 2254. On appeal,

Washington raises three certified issues and four uncertified issues. In a


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
concurrently filed published opinion, we address Washington’s certified claim for

ineffective assistance of counsel, and grant relief on that issue. We address

Washington’s remaining claims here, and on all these claims we affirm the district

court.

1.       Although Washington filed his habeas corpus petition before the effective

date of the Antiterrorism and Effective Death Penalty Act of 1996, his appeal is

subject to the certificate of appealability (COA) requirements of 28 U.S.C. § 2253.

Slack v. McDaniel, 529 U.S. 473, 478 (2000). We construe uncertified issues

raised on appeal as a motion to expand the COA. Ninth Cir. R. 22-1(d), (e);

Mardesich v. Cate, 668 F.3d 1164, 1169 n.4 (9th Cir. 2012). We conclude that

reasonable jurists could disagree as to the propriety of the district court’s resolution

of the uncertified issues and therefore expand the COA and address them on the

merits.

2.       The trial court’s failure to sever Washington’s case from Fred Robinson’s

did not result in prejudice so fundamental as to deny his due process right to a fair

trial. We review denial of a severance motion for abuse of discretion. See, e.g.

United States v. Cuozzo, 962 F.2d 945, 949 (9th Cir. 1992). The primary inquiry in

determining whether a failure to sever was prejudicial to the defendant is whether

the evidence is easily compartmentalized. United States v. Patterson, 819 F.2d

1495, 1501 (9th Cir. 1987). Here, the evidence of Fred Robinson’s prior


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abductions of Susan Hill was reasonably easy to separate from the evidence

pertaining to the murder of Sterleen Hill. Washington’s lawyer established that

Washington was not present for the prior abductions, and both the prosecution and

defense noted that Washington was not involved with the prior abductions in their

closing arguments. Finally, the trial court offered limiting instructions, which the

jurors are presumed to have followed. See Cheney v. Washington, 614 F.3d 987,

997 (9th Cir. 2010). Washington therefore cannot show prejudice. There was no

abuse of discretion in denying severance.

3.    The trial court did not err in applying the statutory cruel, heinous, and

depraved aggravating factor under Ariz. Rev. Stat. Ann. § 13-751(F)(6). Because

the statute is written in the disjunctive, the trial court only needed to find one of the

elements proven beyond a reasonable doubt to apply the aggravator. See State v.

Carlson, 48 P.3d 1180, 1191 (Ariz. 2002). The trial court’s finding that the killing

satisfied the cruelty prong, which was affirmed by the Arizona Supreme Court, is

amply supported by substantial evidence in the record. Sterleen Hill was forced to

listen helplessly as her husband was shot and then wait as the shotgun was

reloaded, knowing that she would be next. The trial court’s conclusion that the

suffering was reasonably foreseeable is also supported by the evidence.

Washington had been told before the invasion that the “real purpose of the trip to

Yuma was to take out a drug dealer and get his dope and his money.” And he was,


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at a minimum, present while Sterleen Hill was bound and forced to lie on the floor

in preparation for the execution-style shootings of her and her husband. The trial

court’s application of the cruelty aggravator was not arbitrary and capricious and

did not violate Washington’s due process rights.

4.    There is sufficient evidence to support Washington’s conviction. When

assessing whether sufficient evidence exists to support a conviction, we determine

“whether, after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact” could have made the finding beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). Under this

standard, the evidence shows that Robinson, Mathers, and Washington discussed

going to Yuma on the day of the crimes. The evidence further shows that

Washington was seen in Robinson’s car with Mathers and Robinson leaving

Banning on the night of the crime wearing a red bandana and a tan trench coat.

Moreover, Ralph Hill’s description of one of his attackers as a young black man

wearing a red bandana with a moustache and long sideburns matched

Washington’s appearance that night. Ralph knew Robinson, who is also black, and

testified the man he saw was not Robinson. The jury could reasonably conclude

that Washington was one of the culpable intruders. Also, the shotgun used to shoot

the Hills and a tan trench coat containing a slip of paper with Eric Robinson’s

name on it were found in a nearby field. A few hours after the murder,


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Washington called his girlfriend from Yuma, telling her he was stranded. From all

this evidence, a rational trier of fact could have found beyond a reasonable doubt

that Washington participated in the crime.

5.    We are also not persuaded that Washington’s counsel on direct appeal was

constitutionally ineffective for failing to raise a sufficiency of the evidence

challenge. To establish ineffective assistance of counsel, Washington must show

that his appellate counsel’s performance fell below an objective standard of

reasonableness under prevailing professional norms at the time and that the

ineffective assistance resulted in prejudice. Correll v. Ryan, 539 F.3d 938, 942

(9th Cir. 2008) (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)).

Clarke testified that he made a tactical decision to focus on other issues on appeal

and there is nothing to suggest this decision was unreasonable. Even if Clarke

erred by failing to raise the issue on direct review, the evidence adduced at trial

was sufficient to support Washington’s conviction. As a result, Washington cannot

show a reasonable probability of a different outcome but for Clarke’s alleged error;

without prejudice, this claim fails.

6.    The trial court did not unconstitutionally apply the “pecuniary gain”

aggravator. The pecuniary gain aggravator applies when “the defendant committed

the offense as consideration for the receipt, or in expectation of the receipt, of

anything of pecuniary value.” Ariz. Rev. Stat. Ann. § 13-751(F)(5). The


                                           5
expectation of pecuniary gain must have been “a motive, cause, or impetus for the

murder and not merely the result of the murder.” State v. Hyde, 921 P.2d 655, 683

(Ariz. 1996). The evidence shows that Washington was advised that the real

purpose of the trip to Yuma was to “knock off a dope dealer” and “take his coke

and take the cash.” In addition, Washington forced his way into the Hills’ home,

repeatedly demanded drugs or money from the couple, and searched for and took

items of value from the Hills’ home. The application of the pecuniary gain factor

is supported by evidence in the record and was not “so arbitrary or capricious as to

constitute an independent due process or Eighth Amendment violation.” Lewis v.

Jeffers, 497 U.S. 764, 780 (1990).

7.    Washington’s death sentence is not constitutionally inadequate under

Enmund v. Florida, 458 U.S. 782 (1982), and Tison v. Arizona, 481 U.S. 137

(1987). For a death sentence to be constitutional under the Eighth Amendment, the

state must show that (1) the defendant was a major participant in the felony

committed, and (2) the crime was committed with reckless indifference to human

life. See Tison, 481 U.S. at 158. The evidence supports the trial court’s conclusion

that Washington was a major participant in the crime. Washington entered the

Hills’ home and forced them into the master bedroom while demanding drugs and

money. Ralph Hill saw Washington riffling through drawers before he was shot.

And the gun used to shoot the Hills was recovered near the trench coat Washington


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was seen wearing that day. The evidence likewise supports the trial court’s finding

that the crime was committed with reckless disregard for human life. Washington

and his partner entered the Hills’ home armed and forced the couple to lie face

down while demanding drugs and money. Whether or not Washington pulled the

trigger, he was present and failed to render aid to the Hills. See Dickens v. Ryan,

740 F.3d 1302, 1316 (9th Cir. 2014). Washington was a major participant in the

tragic acts of that day. The Arizona court’s determination that Washington was

eligible for the death sentence is therefore well supported by the evidence in the

record.

8.    The district court did not err in denying Washington’s motion to expand the

record because Washington cannot show cause for his failure to develop the facts

in the state PCR proceedings or that failure to admit the evidence resulted in a

fundamental miscarriage of justice. See Keeney v. Tomayao-Reyes, 504 U.S. 1,

11–12 (1992).

9.    In conclusion, on all the claims discussed in this memorandum disposition,

we AFFIRM the district court and deny relief.




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