                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


ROGER W. MURRAY,                      No. 08-99013
         Petitioner-Appellant,
                                        D.C. No.
              v.                  2:03-CV-00775-DGC

DORA SCHRIRO, Warden,
        Respondent-Appellee.          ORDER AND
                                       AMENDED
                                        OPINION


     Appeal from the United States District Court
              for the District of Arizona
     David G. Campbell, District Judge, Presiding

      Argued and Submitted September 13, 2012
                 Las Vegas, Nevada

               Filed March 17, 2014
             Amended February 14, 2018

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

                       Order;
             Opinion by Judge Rawlinson
2                      MURRAY V. SCHRIRO

                           SUMMARY*


                Habeas Corpus/Death Penalty

    The panel amended an opinion affirming the denial of a
28 U.S.C. § 2254 habeas corpus petition challenging a
conviction and capital sentence for murder, denied a petition
for rehearing, and denied on behalf of the court a petition for
rehearing en banc.

    In the amended opinion:

    The panel affirmed the denial of relief as to petitioner’s
change of venue motion, including as to petitioner’s
contention that there is a heightened obligation to change
venue in capital cases. The panel held that the state court’s
decision—that the substantial media coverage of this
“sensational, small-town murder” was not constitutionally
prejudicial—was not contrary to or an unreasonable
application of Supreme Court precedent.

    For the reasons set forth in Robert Murray v. Schriro, 745
F.3d 984 (9th Cir. 2014), the panel affirmed the denial of
relief as to petitioner’s claim under Batson v. Kentucky,
476 U.S. 79 (1986). The panel wrote that, in addition, it was
not persuaded that the outcome of the Batson issue would
change had comparisons been made between prospective
jurors.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                    MURRAY V. SCHRIRO                       3

    The panel affirmed the denial of relief as to petitioner’s
claim that he was denied due process based on a belated
request for access to the sanitized crime scene.

    The panel affirmed the denial of relief as to petitioner’s
request for jury instructions on voluntary intoxication and
second degree murder. The panel held that the evidence in
the record did not support the request, and that the state
court’s denial of relief was consistent with Supreme Court
precedent.

    The panel affirmed the denial of relief as to petitioner’s
claim that the sentencing court misapplied Eddings v.
Oklahoma, 455 U.S. 104 (1982), and its progeny by requiring
a nexus between evidence of petitioner’s dysfunctional
childhood and his commission of the crimes. The panel held
that any such causal nexus error was harmless.

    The panel held that the state court’s denial of relief on
petitioner’s claims of ineffective assistance of counsel was
not contrary to or an unreasonable application of Strickland
v. Washington, 466 U.S. 668 (1984), and did not warrant a
remand under Martinez v. Ryan, 132 S. Ct. 1309 (2012).
4                  MURRAY V. SCHRIRO

                       COUNSEL

John E. Charland (argued), The Charland Law Firm, Phoenix,
Arizona, for Petitioner-Appellant.

Jeffrey A. Zick (argued) and Jacinda A. Lanum, Assistant
Attorneys General, Capital Litigation Section; Lacey Stover
Gard and Kent E. Cattani, Chief Counsel; Mark Brnovich,
Attorney General; Office of the Attorney General, Phoenix,
Arizona; for Respondent-Appellee.


                         ORDER

    The opinion in this case, published at 746 F.3d 418 (9th
Cir. 2014), is hereby amended as follows:

    1. 746 F.3d at 448, Claim Six - Batson Violation

       a. Change the Murray citation to <745 F.3d 984,
          1006–10 (9th Cir. 2014)>.

       b. Insert the following language at the end of the
          section: <In addition, we are not persuaded that
          the outcome of the Batson issue would change
          had comparisons been made between prospective
          juror Alvarado and prospective jurors A and N.
          As Roger noted, both these jurors “edged . . .
          away from their questionnaire answers” indicating
          indecisiveness. The third juror mentioned by
          Roger, Juror B, gave no indication of
          indecisiveness>.
               MURRAY V. SCHRIRO                       5

2. 746 F.3d at 455, Claim Twenty-Six - Failure to
   Appropriately Consider Mitigating Evidence

   a. Second Paragraph, last line: Change <Murray,
      906 P.2d at 577> to <Id. at 577>.

   b. Fourth Paragraph:

       i. Line 4 - Delete the citation to Towery v. Ryan,
          673 F.3d 933, 946 (9th Cir. 2012) (per
          curiam).

       ii. Delete the last sentence beginning with <On
           the other hand,> through the citation to Lopez
           v. Ryan, 630 F.3d 1198, 1204 (9th Cir. 2011),
           and the accompanying parenthetical.

3. 746 F.3d at 455–56: Delete the fifth paragraph on
   page 455, beginning with <In determining whether>
   through the citation to Styers, 547 F.3d at 1035 and
   the accompanying parenthetical; the last paragraph of
   page 455, continuing to page 456, beginning with
   <After closely reviewing> through <See id. at 577>;
   and the following paragraph on page 456, beginning
   with <Taken in the full context> through the citation
   to <See Lopez, 630 F.3d at 1204>, and the
   accompanying parenthetical.

4. 746 F.3d at 457: Delete the final paragraph of the
   section, beginning with <In sum,> through the
   citation to <See Stokley, 705 F.3d at 404>, and the
   accompanying parenthetical.
6                   MURRAY V. SCHRIRO

    5. 746 F.3d at 466, SUMMARY

       Replace the third paragraph of the section beginning
       with <As the Arizona Supreme Court detailed>,
       through <with Supreme Court precedent> with the
       following language: <Any causal nexus error in the
       state court’s consideration, at sentencing, of
       mitigation evidence relating to Roger’s troubled
       childhood was harmless.>

    A copy of the Amended Opinion is attached.

    With these amendments, the panel has voted to deny the
Petition for Rehearing. The full court has been advised of the
petition for rehearing en banc, and no judge of the court has
requested a vote on whether to rehear the matter en banc.
Fed. R. App. P. 35.

   The petition for rehearing and petition for rehearing en
banc, filed March 8, 2017, are DENIED.

    No further petitions for rehearing may be filed.
                       MURRAY V. SCHRIRO                              7

                             OPINION

RAWLINSON, Circuit Judge:

    Petitioner-Appellant Roger Murray (Roger) appeals the
district court’s denial of his petition for habeas corpus
challenging the death sentence imposed following his
convictions for murder and armed robbery.

I. BACKGROUND1

    Dean Morrison (Morrison), age 65, and Jacqueline
Appelhans (Appelhans), age 60, operated a store and
restaurant in Grasshopper Junction, a rural area outside
Kingman, Arizona. See State v. Murray, 906 P.2d 542, 553
(Ariz. 1995). On May 14, 1991, between 8:30 and 9:00 a.m.,
an acquaintance discovered the bodies of Morrison and
Appelhans lying face down, in their bathrobes, after being
shot multiple times in the head. See id. at 553–54.

    At the crime scene, a revolver was found on the couch
and a .22 caliber semiautomatic rifle was leaning against the
wall. See id. at 554. Near the bodies were various .22 and
.38 caliber bullets, as well as shotgun pellets. See id. Two
weeks after the crime, Morrison’s sister found a .25 caliber
bullet in the pantry. See id.

    In the living room, drawers were pulled out and the
contents scattered. See id. The bedrooms and kitchen were
also ransacked. See id. A .303 rifle was on a bed and $172
was on a desk chair. See id. Morrison’s wallet containing

 1
   The facts are taken from the opinion of the Supreme Court of Arizona.
See State v. Murray, 906 P.2d 542 (Ariz. 1995) (in banc).
8                   MURRAY V. SCHRIRO

$800 was undisturbed in his pants pocket. See id. The
drawer from the cash register in the store had been removed,
and the gas register was left on. See id. Morrison’s glasses,
a flashlight, and a set of keys were found on the patio of the
store. See id. In addition, three live .38 caliber bullets were
found near the gas pumps. See id.

    Detective Lent of the Mohave County Sheriff’s
Department and another officer found and noted four sets of
footprints, other than those of the investigating officers and
the acquaintance who discovered the bodies. See id. Two
sets of footprints belonged to the victims, a third set was
made by tennis shoes, and the fourth set by western boots.
See id. A different set of three footprints were made by the
tennis shoes, the western boots, and Morrison’s slippers. See
id. Morrison’s footprints indicated resistance by him. See id.
At the time of their arrest, Roger was wearing tennis shoes
and Robert was wearing western boots, both of which were
consistent with the footprints analyzed at the crime scene.
See id. at 553–54.

    Morrison’s autopsy revealed that he had suffered a
shotgun blast that shattered his skull. See id. He also
suffered two gunshot wounds from a large caliber pistol. See
id. at 554–55. A .38 caliber bullet was recovered from the
back of his neck and large caliber buckshot was removed
from his head. See id. at 555. Found next to Morrison was a
fired .38 caliber bullet. See id. Morrison had lacerations and
abrasions on his face, elbow, forearm, knee, and thigh. See
id. The autopsy revealed that these injuries occurred at
approximately the same time as the gunshot wounds. See id.

    Appelhans was shot with at least three different guns. See
id. A shotgun blast shattered her head. See id. Two .38
                    MURRAY V. SCHRIRO                        9

caliber slugs were removed from her skull. See id. She also
suffered .22 caliber wounds that entered at the back of the
neck and exited her face. See id. Aspiration hemorrhaging
in her lungs indicated a lapse of time between the initial
gunshot and death. See id. The shotgun blast was definitely
lethal, and the .38 caliber bullets were also a possible cause
of death. See id.

     Before the bodies were discovered, police officers found
one of Morrison’s tow trucks abandoned on Interstate 40
westbound near Kingman, Arizona. See id. at 553. Roger
and Robert were arrested on unrelated charges on Interstate
40 eastbound near Holbrook, Arizona. See id. The brothers
were driving a Ford sedan with Alabama license plates. See
id. at 554. When an officer attempted to stop the vehicle, the
brothers fled, driving in excess of eighty-five miles per hour.
See id. During their flight, the brothers breached a manned
and armed roadblock. See id. The brothers stopped only
after their vehicle ran off the road into a wash that impeded
further progress. See id. Robert, the driver, threw a .38
revolver containing four bullets from the car. See id. Roger
discarded a loaded .25 semiautomatic pistol. See id.
Additionally, Robert had two spent shotgun shell casings in
his pants pocket. See id.

    A loaded twelve gauge sawed-off shotgun and shotgun
shells were discovered inside the car. See id. A checkered
cushion cover that matched the cushion on Morrison’s couch
contained rolled coins stamped “Dean’s Enterprises,
Grasshopper Junction, Kingman, Arizona, 86401.” Id. A
blue pillow case contained approximately $1400 in coin rolls
and $3300 in cash. See id. Gloves and a hotel receipt were
also in the vehicle. See id. Records from the hotel indicated
that the brothers had listed a Ford sedan, the description of
10                   MURRAY V. SCHRIRO

which matched the vehicle they were driving at the time of
their arrest, on the hotel registration card. See id. Officers
retrieved from the sedan an atlas with circles around the
locations of two rural establishments, the Oasis and
Grasshopper Junction, which were not otherwise indicated on
the map. See id.

    Keys found in Robert’s pants pocket were later identified
as the keys to a pickup truck on Morrison’s property. See id.
A scanner and connecting knob in the sedan fit an empty
bracket in the abandoned tow truck. See id. It was
determined that the casings found at the crime scene and in
Robert’s pocket were fired from the guns possessed by Roger
and Robert. See id. at 555.

    Human blood and tissue were found on Robert’s shirt, on
Roger’s pants, and on the cushion cover. See id. The blood
on Roger’s pants could have come from either victim or from
Robert, but not from Roger. See id. The blood on Robert’s
shirt was consistent with that of either victim, but not with the
blood of Roger or Robert. See id. The blood on the cushion
cover could have come from Appelhans, but not from
Morrison or the Murrays. See id. No DNA tests were
conducted. See id.

    The brothers were indicted for the first degree murders of
Morrison and Appelhans and for the armed robbery of
Morrison. See id. A jury convicted them of all charges. See
id. The first degree murder verdicts were unanimous for both
premeditated murder and felony murder. See id. After
separate sentencing hearings, the trial court found that the
state had proven three aggravating circumstances as to each
defendant: the murders were committed for pecuniary gain,
                        MURRAY V. SCHRIRO                           11

as defined in A.R.S. § 13-703(F)(5);2 the murders were
especially heinous, cruel or depraved, as provided in § 13-
703(F)(6);3 and the defendants committed multiple
homicides, as described in § 13-703(F)(8).4 See id. Finding
the mitigation evidence insufficient to outweigh the
aggravating circumstances, the trial court denied leniency for
both defendants and imposed a sentence of death. See id.

 2
     A.R.S. § 13-703(F)(5) (1992) provided:

          Aggravating circumstances to be considered shall be
          the following:

                                   ...

          (5) The defendant committed the offense as
          consideration for the receipt, or in expectation of the
          receipt, of anything of pecuniary value.
 3
     A.R.S. § 13-703(F)(6) (1992) provided:

          Aggravating circumstances to be considered shall be
          the following:

                                   ...

          (6) The defendant committed the offense in an
          especially heinous, cruel or depraved manner.
 4
     A.R.S. § 13-703(F)(8) (1992) provided:

          Aggravating circumstances to be considered shall be
          the following:

                                   ...

          (8) The defendant has been convicted of one or more
          other homicides, as defined in § 13-1101, which were
          committed during the commission of the offense.
12                  MURRAY V. SCHRIRO

The Arizona Supreme Court affirmed the convictions and
sentences. See id.

     A. Direct Appeal - Robert and Roger

    On October 26, 1995, the Arizona Supreme Court
affirmed the convictions and sentences. See id. at 553. On
direct appeal, the brothers raised five issues: (1) jury
selection; (2) pretrial motions; (3) evidentiary issues;
(4) motion for acquittal; and (5) special verdict form. See id.
at 555–65. Roger raised five additional trial issues: (1) jury
sequestration; (2) jury instructions; (3) request for mistrial;
(4) prosecutorial misconduct; and (5) visitation of the crime
scene. See id. at 565–69. In addition, Roger raised three
sentencing issues: (1) objective standards and prosecutorial
discretion; (2) independent review; and (3) aggravating
factors. See id. at 569–71. Roger also raised issues related to
the following statutory mitigation factors: (1) capacity to
appreciate wrongfulness of conduct or conform conduct to
requirements of the law, (2) relatively minor participation;
(3) age; (4) duress; and (5) no reasonable foreseeability that
his conduct would create a grave risk of death. See id. at
573–77.

    The Arizona Supreme Court also addressed the following
nonstatutory mitigation factors that Roger raised during trial:
(6) dysfunctional childhood and family relations; (7) medical
treatment; (8) remorse; (9) drug and alcohol use; and
(10) mental health. See id. at 577–78. For the first time on
direct appeal Roger urged as mitigation factors:
(11) education; (12) residual or lingering doubt; (13) felony
murder instruction; and (14) cooperation. See id. at 578.
                     MURRAY V. SCHRIRO                        13

        1. Jury Selection

      The original master jury list used was composed of a one-
and-a-half-year-old driver’s license list in violation of
Arizona law. See id. at 555. Just days before trial was
scheduled to begin, the trial court ordered that a new jury list
be created using both the old driver’s license list and a list of
registered voters. See id. The jury commissioner advised the
trial court that the new list would generate adequate potential
jurors by the date of trial, even though the deadline to respond
was beyond the date trial was scheduled to begin. See id.
Robert and Roger argued that (1) the truncated time to
respond to the jury questionnaire resulted in fewer potential
jurors from more remote portions of the county; and (2) the
one-and-a-half-year-old driver’s license list resulted in fewer
young prospective jurors. See id. Robert and Roger
contended that these infirmities denied them a jury of their
peers because they hailed from a small, rural area in Alabama
and were young at the time of trial. See id. at 555–56. The
Arizona Supreme Court concluded that Robert and Roger
failed to establish the lack of a fair and impartial jury or
prejudice. See id. The brothers failed to show that they were
denied the right to have jurors selected from a fair cross-
section of the community, or systematic exclusion of any
discrete segment of the community. See id. at 556. The court
noted that “failure to follow statutory procedures is harmless,
absent some separate showing of prejudice or discrimination
. . . .” Id.

    The brothers also contended that the jury commissioner’s
use of standardless exclusions violated their constitutional
rights. See id. However, the Arizona Supreme Court
determined that the jury commissioner, within her discretion,
excused and notified potential jurors in accordance with state
14                      MURRAY V. SCHRIRO

law. See id. at 557. The court concluded that the brothers
were not denied their right to a jury drawn from a fair
cross–section of the community, because the criteria used
were neutral and did not “constitute systematic exclusion.”
Id. (citation omitted).

    Finally, Robert and Roger asserted a Batson5 violation
when the prosecution used peremptory challenges to dismiss
the only two Hispanic potential jurors. See id. at 557-58.
The Arizona Supreme Court rejected the Batson challenge,
concluding that the trial court’s acceptance of the
prosecutor’s race-neutral explanation for striking the
Hispanic jurors was not an abuse of discretion. See id.

          2. Pretrial Motions

              a. Severance

    The Arizona Supreme Court concluded that the trial court
did not abuse its discretion in declining to sever the brothers’
cases. See id. at 558. The court noted that “joint trials, are
the rule rather than the exception . . . .” Id. (citation omitted).
The court also pointed out that the crimes were so intertwined
that it would have been virtually impossible to sever the
evidence, because the evidence implicated the brothers
equally. See id. The jury questionnaire screened out
prospective jurors who would have trouble segmenting the
evidence, and the trial court instructed the jury to consider the
evidence separately against each defendant. Under these
circumstances, the Arizona Supreme Court found no
prejudice. See id.


 5
     Batson v. Kentucky, 476 U.S. 79 (1986).
                     MURRAY V. SCHRIRO                        15

            b. Change of Venue

    The Arizona Supreme Court determined that Robert and
Roger failed to prove presumed or actual prejudice based on
the denial of their request for a change of venue due to
pretrial publicity. See id. at 559. The Court emphasized that
the brothers failed to show any pretrial publicity that was so
outrageous that the trial was “utterly corrupted.” Id. (citation
omitted). Any security measures were largely effectuated
when jurors were unlikely to be present. See id. Only
prospective jurors who pledged to decide the case solely on
the evidence were empaneled, and empaneled jurors were
repeatedly admonished to avoid media coverage. See id.
After reviewing this record, the Arizona Supreme Court
affirmed the trial court’s denial of the requested venue
change. See id.

            c. Hybrid Representation

     After noting that there is no right to hybrid representation
(some combination of self-representation and counsel), the
Arizona Supreme Court held that the trial court acted within
its discretion when it denied the brothers’ requests for hybrid
representation in the absence of irreconcilable conflict or
incompetent counsel. See id. at 560.

            d. Library Access

    Citing Bounds v. Smith, 430 U.S. 817 (1977), the Arizona
Supreme Court held that because the brothers were provided
with counsel throughout the proceedings, their constitutional
right to access the court was afforded, regardless of whether
they were able to personally access legal materials. See id. at
561.
16                  MURRAY V. SCHRIRO

       3. Evidentiary Issues

    The brothers challenged the admissibility of crime scene
photographs and footprint comparisons, and argued that the
court improperly prevented them from impeaching a witness.
See id. at 561–64. The Arizona Supreme Court determined
that the challenged photographs were relevant to the case and
were not unduly inflammatory. See id. at 561–62. The court
also rejected the challenge to footprint comparisons made by
a detective, holding that the trial court did not abuse its
discretion in qualifying the detective as an expert where the
detective had extensive tracking experience in criminal
investigations and had previously been qualified as an expert
in state and federal court. See id. at 562–63. Any issue of
proper methodology “went to the weight rather than
admissibility.” Id. at 563 (citation omitted).

    Finally, the brothers contended that the trial court
impermissibly precluded impeachment of the detective who
testified regarding the footprint evidence. See id. at 563–64.
During cross-examination, the detective admitted that he had
previously lied under oath. See id. at 563. After hearing
argument in chambers, the trial court determined that the
relevant extrinsic evidence of the detective’s truthfulness (or
lack thereof) was minimally probative, but far outweighed by
its prejudicial and confusing nature. See id. The trial court
was of the view that admission of the extrinsic evidence to
impeach the detective would essentially result in the trial of
a collateral matter. See id. at 563–64. The Arizona Supreme
Court concluded that the trial court did not abuse its
discretion in applying the Arizona Rules of Evidence. See id.
at 564.
                    MURRAY V. SCHRIRO                       17

       4. Motion for Acquittal

    Robert and Roger moved for acquittal, arguing that there
was not substantial evidence to support a conviction. See id.
at 564. The Arizona Supreme Court concluded that there was
substantial evidence supporting the robbery and felony
murder convictions, including signs of a struggle, to establish
that the defendants used force to rob the victims. See id. The
court also clarified that the prosecution did not need to
establish that Roger killed or intended to kill to prove felony
murder under Arizona law. See id. at 564-65. Rather, the
prosecution need only establish that a principal or accomplice
attempted to commit or committed a robbery and a person
was killed during the commission of and in furtherance of the
robbery. See id. at 565.

    Further, the court affirmed the existence of substantial
evidence supporting the convictions for first-degree murder,
namely evidence establishing that Robert and Roger were
present at the crime scene and participated in the crimes,
including evidence from the crime scene found on the
brothers and the execution-style murders. See id.

   Finally, the Arizona Supreme Court held that the trial
court issued a special verdict that was in the record, as
required by law, although not specifically titled “Special
Verdict.” Id.

   B. Direct Appeal - (Trial Issues)

       1. Jury Sequestration

   Although the trial court denied Roger’s motion to
sequester the jury, the jury was repeatedly admonished to
18                      MURRAY V. SCHRIRO

avoid media coverage. See id. at 566. Roger failed to assert
or establish that the jurors failed to follow the trial court’s
admonitions. See id. The Arizona Supreme Court concluded
that the trial court did not abuse its discretion when it denied
the sequestration request. See id.

         2. Willits Jury Instruction6

    The Arizona Supreme Court concluded that the evidence
Roger asserted that the state failed to preserve, such as the
types of shoes worn by others at the crime scene and fast-
food remnants, would not have tended to exonerate him. See
id. Therefore, the trial court acted within its discretion when
it denied the requested Willits instruction. See id.

         3. Intoxication Instruction

    Roger asserted that he was entitled to an intoxication
instruction, because on the night of the murders, he and
Robert had been drinking at a local bar. See id. However, the
manager of the bar testified that the brothers were “handling
themselves very well.” Id. In view of the trial court’s finding
that there was no evidence that alcohol consumption affected
the brothers’ “ability to think, function, or form intent,” the
Arizona Supreme Court concluded that Roger failed to meet
his burden of showing that consumption of alcohol negated
an element of the crime. Id. at 566–67 (citations omitted).




 6
   State v. Willits, 393 P.2d 274, 276, 279 (Ariz. 1964) (in banc), requires
a jury instruction when the state destroys material evidence that would
allow the jury to infer that the facts implicated by the material evidence
are against the state’s interest.
                    MURRAY V. SCHRIRO                      19

       4. Second-Degree Murder/Lesser Included Offense
          Instruction

    The Arizona Supreme Court explained that an instruction
on second-degree murder would pertain, if at all, only to the
premeditated murder count and only if supported by the
evidence. See id. at 567. Due to the substantial evidence of
premeditation in the record, the Arizona Supreme Court
agreed with the trial court that an instruction on second-
degree murder was contraindicated because the jury could
have only rationally drawn the inference that Robert and
Roger premeditated the murders. See id.

       5. Request for a Mistrial

    Roger’s request for a mistrial stemmed from witness
statements referring directly or indirectly to his in-custody
status. See id. at 567. The Arizona Supreme Court concluded
that the jurors were already aware that the brothers had been
arrested and were in custody at some point prior to trial. The
court ruled that such knowledge was not prejudicial and did
not deprive the brothers of their right to a presumption of
innocence. See id. at 568.

       6. Prosecutorial Misconduct

   Roger alleged the following instances of misconduct:

       (1) A detective’s joking about the Federal
       Bureau of Investigations [FBI] while
       testifying. The objection to the FBI comment
       was sustained based on irrelevance and the
       jury was instructed to disregard it.
20               MURRAY V. SCHRIRO

     (2) Discussion by officers in the courthouse
     library that defendants were using the “fecal
     defense”-throwing up anything and hoping
     something sticks. The trial court thoroughly
     probed this issue and concluded that there had
     been no discussion of the evidence and that
     the jurors were unlikely to have heard the
     discussion.

     (3) The prosecutor’s alleged joking with a
     witness in front of the jury about whether a
     bartender at the Temple Bar had gone fishing
     in Mexico. Defendant waived this issue for
     failure to object at trial. See State v. White,
     564 P.2d 888, 892 (Ariz. 1977).

     (4) The prosecutor’s joking with someone
     while on a cigarette break about being
     subpoenaed, while two jurors stood nearby.
     The prosecutor himself brought the incident to
     the court’s attention; neither defendant
     objected [n]or moved for a mistrial in the trial
     court. Thus, defendant waived this issue.

     (5) In closing argument, the prosecutor’s
     referring to defendants as “the boys from
     Alabama.” Defendant waived this issue by
     failing to object at trial. See State v. Hankins,
     686 P.2d 740, 747 (Ariz. 1984).

     (6) The prosecutor’s stating that a .25 caliber
     bullet found on the premises had been fired by
     one of the brothers. The argument was
     permissible because a ballistics expert found
                    MURRAY V. SCHRIRO                        21

       that the bullet matched the pistol Roger threw
       from the car.

       (7) Reference in closing argument by the state
       to defendants feeling a “sick excitement” in
       committing the murders. The trial court
       cautioned the prosecutor and the prosecutor
       made no more such references.

Id.

    The Arizona Supreme Court determined that the
prosecutor’s conduct did not negatively influence the trial
because Roger failed to establish that the prosecutor’s actions
affected the jury’s verdict in any way. See id.

       7. Visitation of the Crime Scene

    The Arizona Supreme Court determined that the trial
court did not abuse its discretion by denying Roger’s request
to revisit the crime scene. See id. at 569. On the fourth day
of trial, more than a year after the crime was committed,
Roger filed a motion to revisit the crime scene. See id. (citing
Ariz. R. Crim. P. 15.1(e)). The trial court denied the motion
because Roger had failed to show a substantial need for the
second inspection. See id. Roger’s attorney had previously
examined the crime scene with investigators, and the attorney
and investigators were still available. Additionally, the crime
scene had been cleaned. See id.
22                  MURRAY V. SCHRIRO

     C. Direct Appeal - (Sentencing Issues)

        1. Objective Standards and Prosecutorial Discretion

    The Arizona Supreme Court noted that Roger’s
arguments regarding the alleged lack of objective standards
for imposing the death penalty and the broad discretion
afforded the prosecution in seeking the death penalty had
been rejected in previous cases. See id. (citing State v.
Salazar, 844 P.2d 566, 578 (Ariz. 1992) (in banc); State v.
Correll, 715 P.2d 721, 737 (Ariz. 1986) (in banc); State v.
Harding, 670 P.2d 383, 397 (Ariz. 1983) (in banc)).

        2. Independent Review

    The Arizona Supreme Court explained that it conducts an
independent review of death sentences for error, determines
whether the aggravating circumstances were proven beyond
a reasonable doubt, considers mitigating circumstances, and
weighs the aggravating factors and the mitigating
circumstances anew to decide whether leniency is warranted.
See id.

        3. Aggravating Factors

    Roger challenged all three of the following aggravating
factors found by the trial court:

        A. Defendant committed the offense as
        consideration for the receipt, or in expectation
        of the receipt, of anything of pecuniary value.
        A.R.S. § 13-703 (F)(5).
                    MURRAY V. SCHRIRO                      23

       B. Defendant committed the offense in an
       especially heinous, cruel, or depraved manner.
       A.R.S. § 13-703 (F)(6).

       C. Defendant has been convicted of one or
       more other homicides which were committed
       during the commission of the offense. A.R.S.
       § 13-703 (F)(8).

Id.

    The Arizona Supreme Court concluded that there was
substantial evidence to establish that Roger committed the
crime for pecuniary gain, i.e., that there was financial
motivation. See id. Among other evidence, a number of
items, including cash were taken. See id. at 569–70. The
record also supported a finding that the crimes were
especially heinous, cruel, or depraved. See id. at 570. The
victims were kidnapped at gunpoint, were taken by surprise,
and were aware of their imminent demise. See id. The signs
of struggle and fear, e.g., Appelhans clutching Morrison’s
arm, established mental anguish as well as pain and suffering.
See id. Finally, the elderly, helpless victims were subjected
to gratuitous violence and the murders were senseless. See id.
at 571.

       4. Multiple Murders

     Citing its precedent, the Arizona Supreme Court rejected
Roger’s argument that double jeopardy foreclosed application
of the multiple homicide aggravating factor where the
murders were part of the same criminal offense. See id.
(citing State v. Glenway, 823 P.2d 22, 34–35 (Ariz. 1991) (in
banc)).
24                  MURRAY V. SCHRIRO

        5. Mitigating Circumstances

    The Arizona Supreme Court reviewed and addressed the
following mitigating circumstances presented by Roger:

            a. Capacity to Appreciate Wrongfulness of
               Conduct or Conform Conduct to
               Requirements of the Law

    After discussing Roger’s juvenile problems, head injuries,
hyperactivity, and substance abuse, the Arizona Supreme
Court determined that Roger failed to establish that these
factors, either individually or in combination, affected his
capacity to appreciate the wrongfulness of his conduct or to
confirm his conduct to the requirements of the law. See id. at
573–76.

            b. Relatively Minor Participation

    Roger asserted that Robert’s jailhouse letters to him, in
which Robert admitted participating in the killing of
Morrison and Appelhans, exculpated him. Roger also
referenced the lack of evidence establishing that he fired any
of the guns. See id. at 576. The Arizona Supreme Court
disagreed, referencing evidence at trial implicating both
Robert and Roger, including footprint evidence, the fact that
both defendants were armed when captured, and the fact that
the victims suffered numerous bullet wounds from different
weapons. See id. Additionally, the Court noted that Robert’s
jailhouse letters did not “indicate the role Roger did or did not
play.” Id. The Court determined that Roger failed to prove
by a preponderance of the evidence that his role in the crimes
was minor. See id.
                     MURRAY V. SCHRIRO                        25

            c. Age - (Twenty Years Old)

    The Arizona Supreme Court rejected Roger’s reliance on
his relative youth as a mitigating factor. The Court reasoned
that Roger’s intelligence, previous criminal history,
experience with law enforcement, the extent of his
involvement with the crimes, and the deliberate nature of the
murders militated against concluding that the commission of
the crimes was due to a lack of maturity. See id. at 576–77.
In sum, Roger failed to prove “how his age impaired his
judgment in committing the crimes.” Id. at 577 (citation
omitted).

            d. Duress

    The Arizona Supreme Court concluded that Roger was
not under duress from Robert and had failed to show that his
desire to please his brother rose to the level of duress. See id.

            e. No Reasonable Foreseeability that Conduct
               Would Create a Grave Risk of Death

    According to the Arizona Supreme Court, Roger’s
asserted immaturity, dependent personality, and idolizing of
his brother, even if true, would not negate the foreseeability
that use of guns to commit a robbery would create a grave
risk of death. See id.

            f. Dysfunctional      Childhood      and     Family
               Relations

    Although Roger established that his childhood was
dysfunctional, the Arizona Supreme Court concluded that “[a]
difficult family background alone is not a mitigating
26                  MURRAY V. SCHRIRO

circumstance.” Id. (citation omitted). The court held that
“[f]amily background is a mitigating circumstance only if a
defendant can show that something in that background had an
effect or impact on his behavior that was beyond the
defendant’s control.” Id. (citation omitted). In sum, the court
concluded that the fact of Roger’s dysfunctional childhood
was not a mitigating circumstance because “he fail[ed] to
show how [his] background impacted his behavior at
Grasshopper Junction.” Id.

           g. Medical Problems

    The Arizona Supreme Court found “nothing mitigating in
connection with [Roger’s] claimed alleged medical problems
as a child.” Id. at 578.

           h. Remorse

    The Arizona Supreme Court concluded that Roger failed
to establish that he was remorseful, noting specifically
Roger’s letter to the trial judge, written just prior to the
aggravation/mitigation hearings, that denied responsibility for
the crimes. See id.

           i. Drug and Alcohol Use

   The Arizona Supreme Court found that Roger’s alcohol
and drug use were not mitigating because the substance abuse
was self-reported and largely uncorroborated, and because the
physical activity at the crime was inconsistent with sensory
impairment. See id.
                    MURRAY V. SCHRIRO                        27

           j. Mental Health

    The Arizona Supreme Court determined that Roger’s
mental health issues, including hyperactivity and potentially
other mental disorders, were entitled to “some nonstatutory
mitigating weight.” Id. However, the court concluded that
Roger “fail[ed] to prove that he suffer[ed] from brain
damage.” Id.

           k. Education

    The Arizona Supreme Court rejected Roger’s argument
that because he became a paralegal despite having dropped
out of high school, he was able to “reside within our society
and abide by the rules . . .” Id. The Court noted that Roger’s
accomplishments did not prevent commission of the heinous
crimes against Morrison and Appelhans. See id.

           l. Residual or Lingering Doubt

    The Arizona Supreme Court concluded that there was no
lingering doubt regarding Roger’s actual participation in the
crime. Id.

           m. Felony Murder Instruction

    The Arizona Supreme Court explained that a felony
murder instruction “can only be mitigating where there is
some doubt regarding defendant’s specific intent to kill. . . .”
Id. (citation omitted). Because there was a premeditation
finding, Roger’s specific intent was not in doubt. See id.
28                  MURRAY V. SCHRIRO

           n. Cooperation

    Roger complained that the trial court failed to take his
cooperation into consideration. See id. Roger relied on the
fact that he refrained from shooting the police officer who
apprehended him. See id. The Arizona Supreme Court held
that refraining from killing one more person cannot possibly
demonstrate cooperation as a mitigating factor. See id.

       6. Weighing Aggravation and Mitigation

    The Arizona Supreme Court described the “very detailed
special verdicts” completed by the trial court and concluded
that the record reflected careful consideration of all the
evidence and careful weighing of the mitigating and
aggravating factors. See id. at 579.

       7. State’s Rebuttal Evidence

    Roger contended that the trial court improperly allowed
the admission of evidence supporting the aggravating factors
after the defense had rested its mitigation case. See id.
However, the Arizona Supreme Court concluded that the state
was entitled to call witnesses to rebut the mitigation evidence
presented by Roger. See id. Regardless, the Arizona
Supreme Court determined that the trial court had carefully
reviewed the mitigating evidence, and “[t]here [wa]s no
suggestion in the record that the [trial] judge considered the
rebuttal evidence in connection with anything but mitigation.
Id.
                    MURRAY V. SCHRIRO                      29

   D. Post-Conviction Proceedings

    Following his unsuccessful direct appeal, Roger filed a
petition for post-conviction relief (PCR). Roger asserted that
he had a genuine and irreconcilable conflict with his trial
counsel and the trial court’s refusal to appoint new trial
counsel was an abuse of discretion that effectively denied
Roger’s right to counsel. Roger also advanced ineffective
assistance of counsel (IAC) claims alleging: (1) trial
counsel’s sleeping during substantial portions of the trial;
(2) trial counsel’s failure to present the testimony of Jack
Potts, M.D. at the mitigation hearing; (3) trial counsel’s
failure to obtain neurological or neuropsychological
evaluations of Roger prior to sentencing; (4) trial counsel’s
failure to call an exculpatory witness; (5) trial counsel’s
ignorance of rehabilitation as a mitigating factor; (6) trial
counsel’s failure to properly pursue a discovery violation by
the prosecution; (7) trial counsel’s failure to properly
discredit the detective who provided footprint testimony; and
(8) trial counsel’s calling of witnesses who were prejudicial
to the defense. Roger’s remaining claims challenged the trial
court’s construction of nonstatutory mitigating evidence and
the constitutionality of Arizona’s death penalty system.

    Following a hearing pursuant to Rule 32 of the Arizona
Rules of Criminal Procedure, the PCR court set an
evidentiary hearing for the claims asserting ineffective
assistance of counsel for sleeping and for failing to obtain a
neurological or neuropsychological examination. The
balance of the claims were deemed precluded or were
summarily rejected.

   The PCR court appointed a psychologist and
neuropsychologist to evaluate Roger prior to the evidentiary
30                    MURRAY V. SCHRIRO

hearing. Following the evidentiary hearing, the PCR court
denied relief on the IAC claim asserting that counsel slept
throughout major portions of the trial.7

    The Arizona Supreme Court summarily denied Roger’s
subsequent petition for review, except as to Roger’s claim
that he was entitled to a jury determination of the aggravating
factors. Review of that claim was consolidated with the
claims of other similarly situated inmates, and relief was
denied. See State v. Towery, 64 P.3d 828 (Ariz. 2003) (en
banc). Roger filed a petition for writ of certiorari to the
United States Supreme Court, which he later withdrew.
Roger then filed a habeas petition in the federal district court.

      E. Federal Habeas Petition

    The fifty-six claims in Roger’s federal habeas petition
largely mirrored those raised in Roger’s direct appeal. See
Murray, 906 P.2d at 553–78.

   Roger voluntarily withdrew the following nine claims as
duplicative:

      •   Claim 43 (trial court’s failure to file a written special
          verdict);

      •   Claim 47 (IAC - failure to obtain neurological and
          neuropsychological evaluation);


  7
     After being examined by the court appointed psychologists, Roger
notified the PCR court that he did not intend to rely on those experts.
Subsequently, the State filed a motion to dismiss Roger’s IAC claim for
trial counsel’s failure to obtain a neurological or neuropsychological
examination, which the PCR court granted.
                   MURRAY V. SCHRIRO                        31

   •   Claim 49 (IAC - failure to follow-up on objection to
       disclosure violations);

   •   Claim 50 (IAC - failure to discredit footprint expert);

   •   Claim 51 (IAC - called witnesses prejudicial to
       defense);

   •   Claim 52 (denial of sentencing jury);

   •   Claim 54 (arbitrary imposition of the death penalty);

   •   Claim 55 (cruel and unusual punishment); and

   •   Claim 56 (nondeterrence of execution).

   The district court dismissed the following claims as
procedurally barred:

   •   Claim 8 (footprint evidence);

   •   Claim 9 (impeachment of footprint expert);

   •   Claim 20 (viability of aggravating factors);

   •   Claim 21 (application of aggravating factors);

   •   Claim 23 (lack of funding for additional experts);

   •   Claim 24 (unconstitutionality of death penalty);

   •   Claim 25 (unconstitutionality of death penalty);
32                   MURRAY V. SCHRIRO

     •   Claim 26 (unfair balancing of aggravating and
         mitigating factors);

     •   Claim 27 (vagueness of heinous, cruel or depraved
         aggravating factor);

     •   Claim 28 (lack of meaningful review of sentence);

     •   Claim 29 (limitation on nonstatutory mitigation
         evidence);

     •   Claim 30 (IAC -failure to impeach footprint expert);

     •   Claim 31 (IAC - failure to move for severance);

     •   Claim 32 (IAC - failure to secure experts);

     •   Claim 33 (IAC - failure to              prepare     for
         Aggravation/Mitigation Hearing);

     •   Claim 35 (violation of rights under International
         Law);

     •   Claim 36 (physical and psychological torture during
         execution);

     •   Claim 39 (improper consideration of evidence
         regarding aggravating factors);

     •   Claim 44 (irreconcilable conflict with attorney);

     •   Claim 46 (IAC - failure to call mental health expert);
         and
                    MURRAY V. SCHRIRO                       33

   •   Claim 53 (failure to channel sentencing discretion).

   District Court Discussion of Claims on the Merits

   Claim 1 - Change of Venue

    The district court determined that the Arizona Supreme
Court’s decision denying relief was not contrary to or an
unreasonable application of Supreme Court precedent, nor
was it based on an unreasonable determination of the facts.
The district court referenced the two types of prejudice
resulting from pretrial publicity-presumed prejudice and
actual prejudice. Because Roger did not argue actual
prejudice, the district court focused on presumed prejudice,
albeit noting that the Arizona Supreme Court’s decision
rejecting actual prejudice was not contrary to or an
unreasonable application of Supreme Court precedent. The
district court acknowledged that presumed prejudice is
established when pretrial publicity utterly corrupts the trial
atmosphere or incites a public passion that makes a fair trial
unlikely.

    While the district court recognized that this case garnered
significant media attention, it determined that the nature of
the press coverage was not unduly pervasive or inflammatory.
Rather, the media reports were factual recitations of the crime
and the ensuing criminal proceedings. The district court
therefore concluded that the Arizona Supreme Court did not
unreasonably apply clearly established federal law in
rejecting Roger’s claim of presumed prejudice, and that the
state court’s decision was not based on an unreasonable
determination of the facts.
34                  MURRAY V. SCHRIRO

     Claim 2 - Jury Sequestration

    The district court noted that because there is no
constitutional right to jury sequestration, to obtain habeas
relief, Roger was required to show that he was prejudiced by
the failure to sequester the jury.

     The occurrences referenced by Roger to support his claim
of prejudice included the security measures in effect during
trial, negative comments made by police officers outside the
courtroom, a conversation involving the prosecutor that may
have been overheard by two jurors, and the attendance at trial
of a juror’s spouse. The district court relied on the evidence
presented to the state trial court that no jurors were exposed
to the officers’ comments, that the jurors were admonished to
disregard any comments by the prosecutor during the break,
and that the juror and his spouse did not discuss the case.
Because the state court’s determination that Roger failed to
establish prejudice withstood AEDPA review, the district
court denied habeas relief on this claim.

     Claim 3 - Severance

    The state court’s conclusion that Roger failed to establish
prejudice from the joint trial, the district court held, was not
based on an unreasonable application of clearly established
federal law or an unreasonable determination of the facts.
There was no indication that the defenses were antagonistic
or mutually exclusive. Neither brother testified and no
inculpatory statements were introduced. The nature and
effect of the overwhelming evidence, which was admissible
against both brothers, would not have changed if the trial
were severed. The district court thus concluded that this
claim was without merit, and denied relief.
                        MURRAY V. SCHRIRO                                35

      Claim 4 - Jury Selection Process

    The district court rejected this claim because Roger failed
to demonstrate that young people or persons living in rural
areas are distinctive groups as is required to establish
underrepresentation or exclusion of a cognizable group from
the jury selection process. The Arizona Supreme Court had
rejected this claim on the basis of Duren v. Missouri,
439 U.S. 357 (1979). Because Roger could not show that
either Duren or any other clearly established Supreme Court
authority recognized young people or people living in rural
areas as distinctive groups for fair-cross section purposes, the
district court concluded that the state court had not
unreasonably applied clearly established federal law.8

      Claim 5 - Fair Cross-Section/Equal Protection

    The district court determined that, as with Claim 4, the
Arizona Supreme Court did not unreasonably apply United
States Supreme Court precedent by concluding that Roger
failed to establish that a distinctive group was improperly
excluded from the jury pool.

      Claim 6 - Batson

    The state court’s determination that the prosecutor’s
reasons for striking each of the challenged jurors were race-
neutral, the district court concluded, was valid under AEDPA.


  8
    In Duren, the United States Supreme Court held that a defendant in a
criminal case has a Sixth Amendment right to a jury pool that constitutes
a fair cross-section of the community. See Duren, 439 U.S. at 359–60.
This constitutional right is violated only if a distinctive group is excluded
from jury service. See id. at 364.
36                  MURRAY V. SCHRIRO

One juror was excused due to the state’s criminal
investigation of her relatives and the other juror was excused
because the prosecutor knew the juror socially and was
concerned that he might be too willing to agree to avoid
discord. The district court determined that the Arizona
Supreme Court neither unreasonably applied Batson nor
based its decision on an unreasonable determination of the
facts in the record.

     Claim 7 - Revisiting the Crime Scene

    The district court determined that Roger did not establish
prejudice due to the trial court’s denial of his request to
revisit the crime scene more than a year after the crime was
committed and after the crime scene had been cleaned. The
district court concluded that Roger failed to show that the
evidence sought was material or that the verdict would have
been different, particularly in view of the overwhelming
evidence of guilt. The district court denied relief on this
claim, affirming the state court’s determination under
AEDPA.

     Claim 10 - Hybrid Representation

    The district court concluded that the Arizona Supreme
Court’s decision denying Roger’s hybrid representation claim
was not contrary to or an unreasonable application of
Supreme Court precedent. Roger did not assert that the state
court’s ruling violated his constitutional rights in any
particular fashion. Additionally, the district court observed
that Roger failed to cite any clearly established law
supporting his claim of entitlement to hybrid representation.
The district court denied relief on this claim.
                    MURRAY V. SCHRIRO                       37

   Claim 11 - Gruesome Photographs

    The district court found that Roger was not prejudiced by
the photographs of the victims and of the crime scene that
were admitted into evidence. The court reasoned that even if
the pictures were improperly admitted, the error was not
prejudicial and did not rise to the level of a due process
violation because the evidence against Roger was
overwhelming. The district court denied relief, concluding
that the state court’s determination was neither contrary to,
nor an unreasonable application of, clearly established federal
law.

   Claim 12 - Prosecutorial Misconduct

    The district court determined that a detective’s joking
about the FBI while testifying, when viewed in the context of
the entire proceedings, “was innocuous and could have had
no effect on the fairness of the trial,” particularly since the
jury was instructed to disregard the offending comments. The
district court also determined that the prosecutor’s statement
during closing argument tying the .25 caliber shell found at
the crime scene to Roger was a permissible inference that the
prosecutor was allowed to draw based on the evidence.
Regarding the prosecutor’s reference to the brothers as the
“boys from Alabama” during closing argument, the district
court determined that the “prosecutor’s use of this rhetorical
device did not carry the connotations [Roger] ascribe[d] to it
and did not deprive him of a fair trial.”

    Finally, the district court determined that the comments
made by the prosecution “that the defendants experienced a
‘sick excitement’ and ‘some sick crazy high’” as they
committed the crimes did not result in a due process
38                  MURRAY V. SCHRIRO

violation. The trial court neutralized any inappropriateness
by instructing the jury not to be influenced by passion or
prejudice, and that statements of counsel are not evidence.
The district court denied relief because it determined that the
Arizona Supreme Court did not unreasonably apply clearly
established federal law holding that inappropriate remarks
must infect the trial with unfairness to warrant reversal.

     Claim 13 - Reference to In-Custody Status

     Roger objected and moved for a mistrial after reference
was made to blood being drawn from Roger by a “nurse in
jail.” Another reference was made to the fact that Roger’s
clothing was taken while he was in custody. The trial court
sustained the objection to the testimony regarding blood
being drawn and struck the answer. Roger’s motion for a
mistrial was denied.

    The district court agreed with the state court that these
isolated references to Roger’s in-custody status did not
warrant a mistrial. The district court concluded that relief
was not warranted under Estelle v. Williams, 424 U.S. 501
(1976), and Roger cited no Supreme Court case supporting
the proposition that the mere mention of the fact that a
defendant is in custody constitutes a due process violation.
Accordingly, the district court denied relief on this claim
under AEDPA.

     Claim 14 - Sufficiency of Evidence

    Roger challenged the sufficiency of evidence supporting
his armed robbery and felony murder convictions. The
district court found that the state court did not unreasonably
apply clearly established federal law, Jackson v. Virginia,
                     MURRAY V. SCHRIRO                         39

443 U.S. 307 (1979), in concluding that a rational factfinder
could determine from the evidence that Roger committed
armed robbery and that the deaths of the victims occurred
during the course of or in furtherance of the armed robbery.
Nor was the state court’s conclusion an unreasonable
determination of the facts, given the use of several weapons,
evidence of a struggle, and the fact that property was taken.
The district court, therefore, denied relief on this claim.

    Claim 15 - Jury Instruction Addressing the State’s
    Failure to Preserve Evidence

     Roger alleged that the trial court violated his rights by
failing to give a jury instruction regarding the state’s failure
to preserve evidence. The district court opined that Roger
had failed to establish that the officers who conducted the
investigation acted in bad faith with respect to gathering,
preserving, and analyzing the evidence. The witnesses for the
state all gave credible explanations for the methods used to
gather and preserve evidence, showing at most negligence on
the part of investigators. More importantly, Roger failed to
establish that the exculpatory nature of any unpreserved
evidence was apparent before it was destroyed, or that the
evidence was material. Because the state court did not
unreasonably apply clearly established federal law in
rejecting this claim, see California v. Trombetta, 467 U.S.
479, 488 (1984), the district court denied relief under
AEDPA.

    Claim 16 - Intoxication Instruction

    The district court determined that Roger was not denied
a fair trial when the trial court declined to give an intoxication
instruction to the jury. The trial court found, and the Arizona
40                    MURRAY V. SCHRIRO

Supreme Court affirmed, that Roger was drinking at a bar
prior to the murders, but that there was no evidence that he
was in fact intoxicated. Reviewing the state court decision
under AEDPA, the district court presumed that finding to be
correct and concluded that Roger had not overcome that
presumption of correctness with clear and convincing
evidence. The district court thus denied this claim.

      Claim 17 - Lesser Included Offense Instruction

    The district court found that the state court properly
applied Supreme Court precedent, Hopper v. Evans, 456 U.S.
605, 611 (1982), in concluding that there was insufficient
evidence in the record to persuade a rational factfinder that
Roger committed second degree murder rather than first
degree murder, thereby necessitating a lesser included offense
jury instruction. The district court also noted that the
evidence of premeditation was overwhelming.

      Claim 18 - Unconstitutionality of Arizona’s Felony
      Murder Statute

    The district court determined that there is no clearly
established federal law holding that a felony murder statute
must include lesser offenses. Citing Hopkins v. Reeves,
524 U.S. 88, 96–97 (1998), the district court determined that
Supreme Court precedent was to the contrary.9 The district
court denied this claim.


  9
    In Hopkins, the United States Supreme Court held that there is no
requirement to give an instruction for second degree murder when the
defendant is charged with capital felony murder, unless second degree
murder is a lesser included offense of felony murder under state law.
524 U.S. at 94–97.
                    MURRAY V. SCHRIRO                       41

   Claim 19 - Unconstitutionality of Sentence Imposition by
   Judge Under State Law

    The district court denied this claim as foreclosed by
Schriro v. Summerlin, 542 U.S. 348, 358 (2004), which held
that the Supreme Court’s decision in Ring v. Arizona,
536 U.S. 584 (2002), requiring jury sentencing in capital
cases, was not retroactive.

   Claim 22 - Double Jeopardy

    Roger took the position that applying the aggravator for
multiple victims subjected him to double jeopardy. The
district court explained that Roger was not being punished
twice for the same crime. Rather, there were two crimes, two
convictions, and two sentences. Citing Poland v. Arizona,
476 U.S. 147, 156 (1986), and Lowenfield v. Phelps, 484 U.S.
231, 244–46 (1988), the district court clarified that statutory
aggravating factors are not offenses for double jeopardy
purposes, but are used to guide the jury in determining an
appropriate sentence in capital cases. The district court
concluded that the Arizona Supreme Court’s decision on this
issue was not contrary to or an unreasonable application of
clearly established federal law on double jeopardy.

   Claim 34 – Lack of Legitimate Penological Purpose
   Served by Delayed Execution

    The district court denied this claim as a matter of law
because the United States Supreme Court has not determined
that a lengthy incarceration prior to execution constitutes
cruel or unusual punishment. The district court also observed
that several circuit courts, including the Ninth Circuit, have
held that prolonged incarceration prior to execution does not
42                  MURRAY V. SCHRIRO

violate the Eighth Amendment. See, e.g., McKenzie v. Day,
57 F.3d 1493, 1493–94 (9th Cir. 1995) (en banc).

     Claim 37 – Incompetence at Time of Execution

    Roger asserted that he would be incompetent at the
anticipated time of execution. The district court dismissed
this claim without prejudice as premature, with consent of the
parties.

     Claim 38 - Access to the Law Library

    The district court found that the Arizona Supreme Court
did not unreasonably apply clearly established federal law
when it decided that Roger was provided adequate assistance
from persons trained in the law, satisfying his constitutional
right of access to the courts. The district court ruled that the
state court’s ruling was consistent with Bounds, 430 U.S. at
828, which held that constitutional access to the courts is
satisfied by access to a law library or adequate assistance
from a person trained in the law.

     Claims 40/41 - Statutory and NonStatutory Mitigation
     Evidence Outweighing Aggravating Factors

    The district court dismissed the portion of these claims
asserting violations of the Fifth, Sixth, and Seventh
Amendments as procedurally barred. The district court also
denied relief on the portion of Roger’s claim asserting under
the Eighth and Fourteenth Amendments, that the sentencing
court failed to properly weigh aggravating and mitigating
factors. The district court determined that this was an
asserted error of state law, and thus no federal habeas relief
                    MURRAY V. SCHRIRO                         43

was available. See Estelle v. McGuire, 502 U.S. 62, 67–68
(1991).

    Claim 42 - Unconstitutional Breadth of Prosecution’s
    Discretion to Seek the Death Penalty

    The district court denied this claim because no clearly
established Supreme Court precedent requires that a state
provide specific standards instructing a sentencing court or
jury regarding how to weigh aggravating and mitigating
evidence. See Ortiz v. Stewart, 149 F.3d 923, 944 (9th Cir.
1998) (citing Zant v. Stephens, 462 U.S. 862, 880 (1983) for
the proposition that the United States Constitution requires
only that a state provide procedures to guide the sentencer’s
discretion generally). In addition, the district court noted that
we rejected this very argument in Smith v. Stewart, 140 F.3d
1263, 1272 (9th Cir. 1998).

    Claim 45 - Ineffective Assistance of Counsel - (sleeping
    through significant portions of the trial)

     The district court determined, in light of the evidence
presented in the state court proceedings, that the state court
did not rely on an unreasonable determination of facts in
rejecting Roger’s allegation that his counsel slept throughout
a significant portion of the trial and thus was constitutionally
ineffective. Only Roger testified that he actually observed his
lawyer sleeping, and multiple other witnesses testified that
they did not see the lawyer asleep and that he was active and
zealously involved in Roger’s defense. Additionally, the
district court noted testimony from Roger’s lawyer and from
co-counsel that Roger did not complain about his lawyer
falling asleep in court.
44                   MURRAY V. SCHRIRO

     The district court also rejected Roger’s argument that he
did not receive a fair hearing because the trial court judge was
a key witness and also the presiding judge for the PCR
proceedings. The district court relied on Gerlaugh v. Stewart,
129 F.3d 1027, 1036 (9th Cir. 1997), where we held that a
trial court judge may also preside over post-conviction
proceedings. The district court denied this claim.

     Claim 48 - Ineffective Assistance of Counsel - (failure to
     present exculpatory witness)

    The PCR court concluded that Robert’s counsel was not
ineffective when attempting to locate the alleged exculpatory
witness. The district court determined that even if Roger’s
counsel was ineffective in failing to present that same
witness, the outcome of the trial would have been the same.
The proposed exculpatory testimony that the victim was seen
with three other men on the night of the murder would not
have overcome the insurmountable inculpatory evidence.
Because Roger could not establish prejudice in any event, the
state court’s determination was not contrary to clearly
established federal law, see Strickland v. Washington,
466 U.S. 668, 687–88 (1984).

    The district court declined to issue a Certificate of
Appealability (COA) after denying Roger’s petition. Roger
subsequently filed a timely appeal, and we issued a COA for
the following claims:

     •   Claim 1 - denial of requested change of venue;

     •   Claim 5 - denial of fair cross-section in the jury
         venire;
                    MURRAY V. SCHRIRO                      45

   •   Claim 6 - Batson violation;

   •   Claim 7 - denial of request to inspect the crime
       scene;

   •   Claim 16 - omission of voluntary intoxication
       instruction;

   •   Claim 17 -      denial of a lesser included offense
       instruction;

   •   Claim 26 - failure to consider mitigating evidence;

   •   Claim 44 - denial of request to replace counsel due to
       irreconcilable conflict;

   •   Claim 45 - ineffective assistance of counsel (IAC)
       due to counsel’s inattentiveness; and

   •   Claim 48 - IAC due to counsel’s failure to present
       exculpatory witness.

II. STANDARDS OF REVIEW

    We review de novo a district court’s denial of a habeas
petition. See Fairbank v. Ayers, 650 F.3d 1243, 1250 (9th
Cir. 2011), as amended.

    Because Roger filed his petition for a writ of habeas
corpus after April 24, 1996, the Antiterrorism and Effective
Death Penalty Act (AEDPA) applies. See Valerio v.
Crawford, 306 F.3d 742, 763 (9th Cir. 2002) (en banc).
Under AEPDA, we are barred from granting relief unless the
state court decision: “(1) was contrary to clearly established
46                  MURRAY V. SCHRIRO

federal law as determined by the Supreme Court, (2) involved
an unreasonable application of such law, or (3) . . . was based
on an unreasonable determination of the facts in light of the
record before the state court.” Fairbank, 650 F.3d at 1251
(citation and internal quotation marks omitted).

    A state court’s decision is contrary to clearly established
federal law if its decision contradicts the governing law
articulated by the Supreme Court or reaches a result different
than that reached by the Supreme Court on materially
indistinguishable facts. See Terry Williams v. Taylor,
529 U.S. 362, 405–06 (2000). A state court’s decision is an
unreasonable application of clearly established federal law
when the state court identifies the correct legal rule, but
applies it to a new set of facts in a way that is objectively
unreasonable. See id. at 407.

    “Clearly established federal law means the governing
legal principle or principles set forth by the Supreme Court at
the time the state court renders its decision.” Xiong v. Felker,
681 F.3d 1067, 1073 (9th Cir. 2012) (citation omitted).
Although “circuit court precedent may be persuasive in
determining what law is clearly established and whether a
state court applied that law unreasonably[,]” Stanley v.
Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citation omitted),
our determination of clearly-established law under AEDPA
must ultimately rest on a Supreme Court holding, not on dicta
that we have interpreted in circuit decisions. See Carey v.
Musladin, 549 U.S. 70, 74, 77 (2006); see also Wright v. Van
Patten, 552 U.S. 120, 125–26 (2008) (reiterating that a
Supreme Court case must have “squarely address[ed]” a
certain issue and given a “clear answer” regarding the
applicable legal rule to create “clearly established federal law
for AEDPA purposes”).
                    MURRAY V. SCHRIRO                        47

    Under AEDPA, we review the “last reasoned decision”
from the state court, which means that when the final state
court decision contains no reasoning, we may look to the last
decision from the state court that provides a reasoned
explanation of the issue. See Shackleford v. Hubbard,
234 F.3d 1072, 1079 n.2 (9th Cir. 2000). In circumstances
where no decision from the state court articulates its
underlying reasoning, “the habeas petitioner’s burden still
must be met by showing there was no reasonable basis for the
state court to deny relief. . . .” Harrington v. Richter, 131 S.
Ct. 770, 784 (2011); see also Johnson v. Williams, 133 S. Ct.
1088, 1096 (2013). In determining whether a petition has met
this burden, we “must determine what arguments or theories
supported or . . . could have supported [ ] the state court’s
decision;” and then assess “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]. . . .” Richter, 131 S. Ct. at 786 (citation
omitted). Accordingly, “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, 709 F.3d 925, 939 (9th Cir. 2013) (citation and
internal quotation marks omitted).” “Crucially, this is not a
de novo review of the constitutional question. Rather, even
a strong case for relief does not mean the state court’s
contrary conclusion was unreasonable.” Id. (citations and
internal quotation marks omitted).

    Finally, so long as we are reviewing a petitioner’s claim
under AEDPA, our review is limited to the facts before the
state court and the petitioner is not entitled to an evidentiary
hearing in federal court. See Cullen v. Pinholster, 131 S. Ct.
1388, 1398 (2011).
48                  MURRAY V. SCHRIRO

III.      DISCUSSION—Issues Raised in Federal Appeal

       A. Claim One - Denial of Requested Change of Venue

    Roger argues that the denial of his change of venue
motion violated his due process right to a fair trial. He
contends that there was a barrage of pretrial publicity that was
false and prejudicial. He also asserts that there is a
heightened obligation to change venue in capital cases.

     The Sixth Amendment guarantees a defendant’s right to
trial before an impartial jury. See Skilling v. United States,
130 S. Ct. 2896, 2912–13 (2010). When an impartial jury
cannot be empaneled due to pretrial publicity, a change of
venue at the request of the defendant is appropriate to prevent
violation of the defendant’s due process right to a fair trial.
See id. at 2913.

     To support a change of venue request, the defendant must
establish either presumed or actual prejudice. See id. at 2907.
The Supreme Court has explained that a court may presume
prejudice only when the “trial atmosphere [is] utterly
corrupted by press coverage,” Dobbert v. Florida, 432 U.S.
282, 303 (1977) (citing Murphy v. Florida, 421 U.S. 794, 798
(1975)), or when “a wave of public passion . . . ma[kes] a fair
trial unlikely by the jury . . .” Patton v. Yount, 467 U.S. 1025,
1040 (1984) (internal quotation marks omitted). Juror
exposure to news reports of a crime–even “pervasive, adverse
publicity”–is not enough alone to trigger a presumption of
prejudice to the defendant’s due process rights. Skilling,
130 S. Ct. at 2916 (describing the “vivid, unforgettable” and
“blatantly prejudicial” information at issue in the handful of
cases in which the Supreme Court has presumed prejudice as
a result of pretrial publicity) (citing Rideau v. Louisiana,
                     MURRAY V. SCHRIRO                         49

323 U.S. 723 (1963); Estes v. Texas, 381 U.S. 532 (1965);
Sheppard v. Maxwell, 384 U.S. 333 (1966)). Rather, a
presumption of prejudice “attends only the extreme case.” Id.
at 2915.

    In the alternative, a defendant may establish the existence
of actual prejudice if, during voir dire, potential jurors who
have been exposed to pretrial publicity express bias or
hostility toward the defendant that cannot be cast aside. Id.
at 2918 & n.20 (citing Mu’Min v. Virginia, 500 U.S. 415, 427
(1991)). The reviewing court must give deference to the trial
court’s assessment of the impartiality of potential jurors,
since that assessment “is ordinarily influenced by a host of
facts impossible to fully capture in the record . . .” Skilling,
130 S. Ct. at 2918; see also Mu’Min, 500 U.S. at 427. (“The
judge of that court sits in the locale where the publicity is said
to have had its effect and brings to his evaluation of any such
claim his own perception of the depth and extent of news
stories that might influence a juror. . . .”).

    The last reasoned state court decision addressing the
pretrial publicity issue was the Supreme Court of Arizona
opinion. See Murray, 906 P.2d at 559. The state supreme
court held that Roger failed to demonstrate media attention so
extreme that prejudice could be presumed. See id. Roger
introduced several newspaper articles and presented two
witnesses, a news director and the defense investigator, to
establish presumed prejudice. The newspaper articles were
primarily factual descriptions of the crime and the court
proceedings. Roger highlights two newspaper articles and a
photograph to support his argument. The articles’ captions
were “Two Alabama Brothers Are Arraigned for Brutal
Slayings” and “Murray Brothers Are Suspects in Crime
Spree.” The referenced photograph depicted Robert and
50                  MURRAY V. SCHRIRO

Roger standing near a transport van. The text below the
photograph stated that at least eight law enforcement officers
escorted the brothers, and that two armed officers were
stationed on nearby rooftops.

    The witnesses testified that people in the area were aware
through news reports of the brothers and of the crimes
committed, and that some members of the community had
expressed the view that the brothers were guilty. After
considering the evidence presented, the state court concluded
that Roger failed to specify “what pretrial publicity was so
outrageous,” as to create an atmosphere that was “utterly
corrupted.” Murray, 906 P.2d at 559 (citation omitted)
(emphasis in the original). Nor was the court convinced that
the security measures implemented for trial “creat[ed] a
contaminated atmosphere,” warranting a presumption of
prejudice. Id. Finally, the court found that no actual
prejudice was shown. Although some of the prospective
jurors were aware of the crime generally, potential juror bias
was probed extensively in the jury questionnaire and during
voir dire. See id. Any prospective juror who failed to
convince the court that he could be objective despite the
pretrial publicity was not allowed to remain on the jury panel.
See id. Once seated, jurors were repeatedly admonished to
avoid media coverage of the trial proceedings. See id. After
reviewing this record, the Arizona Supreme Court affirmed
the trial court’s denial of the requested venue change. See id.

    Roger relies on Coleman v. Kemp, 778 F.2d 1487 (11th
Cir. 1985) and Daniels v. Woodford, 428 F.3d 1181 (9th Cir.
2005) to support his argument that the state court’s decision
was unreasonable. As the Supreme Court has made clear,
however, simply because a state court decision is inconsistent
with circuit precedent does not mean that it is an
                    MURRAY V. SCHRIRO                         51

unreasonable application of clearly established federal law
“as determined by the Supreme Court.” Richter, 131 S. Ct. at
784 (quoting 28 U.S.C. § 2254); see also Marshall v.
Rodgers, 133 S. Ct. 1446, 1450–51 (2013). Thus, our circuit
precedent is only relevant to the extent that, “in accordance
with [our] usual law-of-the circuit procedures, . . . [we] ha[ve]
already held that the particular point in issue is clearly
established by Supreme Court precedent . . .” Marshall,
133 S. Ct. at 1450 (citations omitted). “[We] may not
canvass circuit decisions to determine whether a particular
rule of law is so widely accepted among the Federal Circuits
that it would, if presented to th[e] [Supreme] Court be
accepted as correct. . . .” Id. at 1451 (citations omitted).
Therefore, Roger’s argument that his case is similar to the
presumed prejudice determinations in Coleman and Daniels,
see Coleman, 778 F.2d at 1537–38, Daniels, 428 F.3d at
1211, is inapposite to our analysis on habeas review.

    Our precedent does, however, require that we “conduct an
independent review of news reports about the case.” Daniels,
428 F.3d at 1210 (citation omitted). An independent review
of the record reveals that Roger presented a number of
newspaper articles to the state court. The bulk of the pretrial
articles were published months prior to trial. And it is
important to note that not all of these articles are from
Mohave County, or are even about Roger. Some of the
articles, particularly the editorials, were about the death
penalty in general. It appears that this is because, around the
time of Roger’s trial, Arizona was preparing to execute a man
for the first time since 1963. This situation created interest,
leading people to question whether the death penalty should
be supported by society in general. In fact, some of the
editorials actually questioned whether the death penalty is
appropriate. One editorial stated that killers should be put six
52                   MURRAY V. SCHRIRO

feet under, but the statement was a general one, not directed
toward Roger, neither assuming his guilt, nor calling for his
punishment. Only two editorials actually referenced Roger.
One referred to “the Murray brothers” being represented by
Frank Dickey. The editorial continued by criticizing Mr.
Dickey’s personal views concerning the death penalty. The
other was a letter to the editor praising the judicial system for
denying the defense motion to suppress evidence obtained
after a license plate check by an Arizona DPS officer resulted
in the Murrays’ apprehension. The letter was anything but
inflammatory toward Roger, again not even referring to him
by name, but as one of the Murray brothers.

    The vast majority of the articles submitted by Roger
reported only facts, relaying information regarding what
happened at trial on particular days. One article, that ran long
before trial, mentioned that the victims were shot “execution
style” and that an elderly woman had also been attacked by
the brothers in Alabama. The problem with relying on this
article is that it ran in an Alabama newspaper, thousands of
miles from the trial venue. An article describing the brothers
as suspects in a crime spree did run in the Kingman, Arizona,
newspaper over a year before the trial. The article detailed
allegations of a robbery and assault against an elderly woman
in Alabama. Finally, as mentioned by Roger, a newspaper
ran an article about the venue hearing, including a picture of
the brothers being escorted to the jail and a description of
armed officers “perched on rooftops” overlooking them.

    Roger also proffered evidence of radio publicity. David
Hawkins, the news and sports director for various local radio
stations, testified that the radio stations’ transmission areas
covered the bulk of the residents in Mohave County.
Mr. Hawkins brought to court copies of the vast majority of
                    MURRAY V. SCHRIRO                        53

the stories that had been broadcast on the radio. He testified
that the community was “upset with what happened to the
victims in this case, and they are curious about the outcome
of this particular–not this particular proceeding, but the whole
of this case.” Mr. Hawkins further testified that he had heard
some expressed opinions that the defendants were guilty,
although he had only spoken to a “couple dozen” members of
the community–mostly people in legal circles, reporters and
social acquaintances.

    Of the fifty-seven stories Mr. Hawkins brought to court,
some mentioned that the brothers were connected to a
robbery/assault in Alabama, that they might be linked to
murders in California and New Mexico, and that the murders
were committed “execution style.” Overall, however, the
radio news reports were brief and factual in nature.

     Finally, John Freeman, a defense investigator, testified
that he had spoken to a number of people about the case who
thought the brothers were guilty and should “get a quick
trial.”

    We conclude that the Arizona Supreme Court’s
determination that prejudice could not be presumed was not
contrary to or an unreasonable application of Supreme Court
precedent, and while it does not impact our AEDPA inquiry,
we note that the ruling was consistent with Coleman and
Daniels as well.

    The publicity surrounding Roger’s trial fell far short of
the “utterly corrupted” trial environment that existed in
Rideau, Estes, and Sheppard, the three cases the Supreme
Court described in Skilling as establishing the threshold for
presumed prejudice due to pretrial publicity. Skilling, 130 S.
54                  MURRAY V. SCHRIRO

Ct. at 2913–14. In Rideau, the defendant’s confession was
broadcast on television three times, and two-thirds of the
local community saw or heard the broadcast. See 373 U.S. at
724–26. In Estes, there was extensive media presence in the
courtroom, including microphones, television cameras, and
photographers; these facts combined with the live telecast and
rebroadcast of a pre-trial hearing, led the Court to conclude
that such intrusion was inherently prejudicial. See 381 U.S.
at 550–51. Finally, in Sheppard, news articles emphasized
that the defendant’s extramarital affairs were a motive for the
crime, characterized the defendant as a liar, and described
incriminating evidence and discrepancies in defendant’s
statements. See 384 U.S. at 340–41. Likewise, in both
Coleman and Daniels, an onslaught of inflammatory publicity
resulted in a denial of due process. See Coleman, 778 F.2d at
1538–39; see also Daniels, 428 F.3d at 1212. For example,
in Coleman, we emphasized comments on the evidence from
law enforcement officials, derogatory descriptions of the
defendants, remarks from potential defense attorneys seeking
to avoid appointment, and editorials expressing the
appropriateness of the death penalty. See Coleman, 778 F.2d
at 1539–40.

    By contrast, news coverage of the crimes committed by
the Murray brothers was almost invariably fact–based. There
was no inflammatory barrage of information that would be
inadmissible at trial. Rather, the news reports focused on
relaying mainly evidence presented at trial. These news
reports do not come anywhere close to the kind of “vivid,
unforgettable” and “blatantly prejudicial” atmosphere that
occurred in Rideau, Estes, and Sheppard. Skilling, 130 S. Ct.
at 2916–17.
                    MURRAY V. SCHRIRO                        55

    Roger seeks to avoid this conclusion by arguing that the
legal standard for prejudice is somehow lower in capital
cases, contending that there is a “heightened obligation to be
particularly serious to the need for change of venue for capital
cases.” But Supreme Court precedent provides no support for
this proposition. In Dobbert, to illustrate, the Court expressly
applied Murphy in upholding the petitioner’s death sentence.
See Dobbert, 432 U.S. at 302. The Court has not since
departed from that standard.

    Roger also notes that Murphy sets forth a “totality of the
circumstances” test for whether media coverage has “utterly
corrupted” the trial, and that the Arizona Supreme Court
therefore erred in holding that Roger fell short of the standard
because he “failed to show what pretrial publicity was so
outrageous.” That is, Roger believes that he was subjected to
too high a bar, in that he should not have been required to cite
specific instances of outrageous publicity. But the Arizona
Supreme Court cited and considered the evidence that Roger
advanced, and simply found that because none of the
evidence was individually problematic, it would be
impossible to conclude that the totality of circumstances had
“utterly corrupted” the trial as described in Murphy. Murray,
906 P.2d at 559. This conclusion was not contrary to or an
unreasonable application of clearly established federal law, as
summarized most recently in Skilling.

    In addition, we conclude that the Arizona Supreme
Court’s determination that no actual prejudice was shown was
not contrary to or an unreasonable application of Supreme
Court precedent. See Mu’ Min, 500 U.S. at 429–30.
Although some of the prospective jurors were aware of the
crime generally, potential juror bias was probed extensively
in the jury questionnaire and during voir dire. See Murray,
56                  MURRAY V. SCHRIRO

906 P.2d at 559. Any prospective juror who failed to
convince the court that he could be objective despite the
pretrial publicity was not allowed to remain on the jury panel.
See id. Once seated, jurors were repeatedly admonished to
avoid media coverage of the trial proceedings. See id. After
reviewing this record, the Arizona Supreme Court affirmed
the trial court’s denial of the requested venue change. See id.

    Our independent review of the voir dire record reveals
that of the seventy-seven potential jurors, only one indicated
that she had previously formed an opinion regarding the case.
That potential juror stated: “Being people were arrested, I
automatically thought guilty.” That same juror indicated that
it would be difficult for her to overcome her opinion of guilt
based upon the arrest of an individual. That juror was
excused by the trial judge, and only two other potential jurors
mentioned that they had opinions about the circumstances of
the crime. The one potential juror’s opinion concerned the
horrible nature of the crime, not the guilt or innocence of
Roger, while the other potential juror’s opinion was regarding
how a crime like this could happen, not the guilt or innocence
of Roger. Both indicated that they could set aside their
opinions and be fair and impartial. The record indicates that
no other potential juror had extensive knowledge of the case;
indeed, some even stated that they had never heard of the
case. We therefore conclude that the Arizona Supreme
Court’s determination that Roger did not establish either
presumed or actual prejudice was neither contrary to nor an
unreasonable application of Supreme Court precedent.
                       MURRAY V. SCHRIRO                              57

      B. Claim Five - Denial of Fair Cross-Section of the
         Community in the Jury Venire.

    Roger contends that the jury commissioner purposely
excluded jurors who stated that it was contrary to their
Christian beliefs to sit in judgment of others. According to
Roger, this purposeful exclusion violated his rights under the
Sixth Amendment (the Fair Cross-Section Doctrine) and the
Equal Protection Clause of the Fourteenth Amendment.10

     On direct appeal, Roger argued that the Sixth and
Fourteenth Amendments had been violated because the jury
list was composed of an out-of-date driver’s license list and
did not include voter registration lists. Moreover, Roger
asserted that even after the jury list was corrected, because
the deadline for returning jury questionnaires was after the
date the jury would be picked, potential jurors from rural
areas were likely to be underrepresented. Finally, Roger
argued that because the state notified jurors to present
themselves for service by telephone, its procedures
systematically excluded individuals who could not afford
telephones. Roger contended that these failures resulted in
the exclusion of young people, poor people, and those hailing
from rural areas, thereby depriving the brothers of a jury of
their peers who were most likely to “understand” them, since
the brothers were young, poor, and from rural Alabama.

    The Arizona Supreme Court thoroughly dealt with the
issues raised by Roger on direct appeal, holding that under
Duren and relevant precedent of its own, Roger failed to


 10
    The district court found that Roger did not raise the Fifth and Eighth
Amendment aspects of this claim in state court, rendering those aspects of
the claim procedurally barred. We agree.
58                   MURRAY V. SCHRIRO

show that young, poor, or rural people were a “distinctive”
group for fair cross-section purposes. Murray, 906 P.2d at
556–57. Roger has again raised a fair cross-section claim
before us, but for good reason, makes no argument
challenging the decision actually rendered by the Arizona
Supreme Court. On federal habeas review, Roger now raises
only the exclusion of Christians as the basis for his Sixth
Amendment fair cross-section argument and Fourteenth
Amendment equal protection argument. Although Roger
made fair cross-section and equal protection arguments
before the Arizona Supreme Court, he did not mention the
exclusion of Christians as a basis for these claims. Before us,
the claim asserting exclusion of Christians is brand new.

    We are unable to grant federal habeas relief when a
petitioner has failed to exhaust his claim in state court. See
28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement
affords state courts the “opportunity to pass upon and correct
alleged violations of its prisoners’ federal rights. . . .” Picard
v. Connor, 404 U.S. 270, 275 (1971) (citation and internal
quotation marks omitted); see also Baldwin v. Reese,
541 U.S. 27, 29 (2004). To satisfy the exhaustion
requirement, a petitioner “must ‘fairly present’ his claim in
each appropriate state court (including a state supreme court
with powers of discretionary review . . .”), Baldwin, 541 U.S.
at 29 (citations omitted). The purpose of the fair presentation
doctrine “is to prevent unnecessary conflict between courts
equally bound to guard and protect rights secured by the
Constitution.” Picard, 404 U.S. at 275 (citation and internal
quotation marks omitted). However, “[t]he rule would serve
no purpose if it could be satisfied by raising one claim in the
state courts and another in the federal courts.” Id. at 276.
“Only if the state courts have had the first opportunity to hear
the claim sought to be vindicated in a federal habeas
                    MURRAY V. SCHRIRO                        59

proceeding does it make sense to speak of the exhaustion of
state remedies. Accordingly, [the Supreme Court] ha[s]
required a state prisoner to present the state courts with the
same claim he urges upon the federal courts.” Id. (citations
omitted) (emphasis added).

    Here, Roger never provided the Arizona Supreme Court
with the opportunity to determine whether the exclusion of
Christians violated his Sixth or Fourteenth Amendment
rights. Like the state court in Picard, the Arizona Supreme
Court had no “opportunity to apply controlling legal
principles to the facts bearing upon (his) constitutional
claim.” Id. at 277 (citation omitted). As in Picard, we cannot
fault the Arizona Supreme Court for “failing also to consider
sua sponte” whether the exclusion of Christians might have
violated Roger’s constitutional rights. Id. Roger’s argument
before the Arizona Supreme Court contained no mention of
Christians being excluded from the jury pool. Thus, we
cannot say that Roger’s current fair cross-section/equal
protection claim predicated on the exclusion of Christians is
the “substantial equivalent” of his claim before the state court
targeting the exclusion of young people, poor people, and
those from rural areas. Id. at 278. This claim, then, is
unexhausted and procedurally defaulted. See Ariz. R. Crim.
P. 32.2(a); see also Poland v. Stewart, 169 F.3d 573, 578 (9th
Cir. 1999).

    Even if this claim were not unexhausted and procedurally
defaulted, it is without merit. See 28 U.S.C. § 2254(b)(2)
(providing that “[a]n application for a writ of habeas corpus
may be denied on the merits, notwithstanding the failure of
the applicant to exhaust the remedies available in the courts
of the State”); see also Bell v. Cone, 543 U.S. 447, 451 & n.3
(2005) (applying § 2254(b)(2) to reach on the merits a
60                  MURRAY V. SCHRIRO

petitioner’s unexhausted but meritless claim). The only
evidence in the record regarding the exclusion of Christians
is the following colloquy:

       [Prosecutor]: And do you [jury commissioner]
       excuse anybody because they state any
       particular religious denomination?

       [Jury Commissioner]: Only one group, and I
       wish–I don’t remember.          Seventh Day
       Adventists or Jehova’s [sic] Witnesses have
       stated on their questionnaire and sent copies,
       I mean a page out of their Bible that it is
       against their religious beliefs to sit in
       judgment of anyone. And only if they request
       it.

     To establish the lack of a fair cross-section of the
community, a defendant must demonstrate that: (1) the group
alleged to be excluded is a distinctive one in the community;
(2) representation of this group in the jury venires is not fair
and reasonable in relation to the number of such persons in
the community; and (3) this underrepresentation is due to
systematic exclusion of the group in the jury-selection
process. See Berghuis v. Smith, 130 S. Ct. 1382, 1392 (2010)
(citing Duren, 439 U.S. at 364).

    An equal protection violation arises if a jury selection
process resulted in a substantial underrepresentation of an
identifiable group. See Castaneda v. Partida, 430 U.S. 482,
494 (1977). First, there must be identification of a group that
is recognizable, distinctive, and singled out for different
treatment under the laws as written or applied. See id.
Second, there must be a showing that the distinctive class was
                    MURRAY V. SCHRIRO                        61

proportionately underrepresented over a significant period of
time. See id. Finally, there must be evidence that the juror
selection process was susceptible to abuse or was not neutral.
See id. Only after this prima facie showing is made must the
state defend its jury selection process. See id.

    Roger does not identify any Supreme Court precedent that
would require the state to interrogate the individuals who
revealed that it was against their religious beliefs to serve on
a jury, and would require the jurors to re-confirm their ability
to set aside their beliefs and apply the governing law. To the
extent Roger advances a claim of error in rejecting this
argument, the claim is meritless.

    As for the Sixth Amendment claim, Roger has failed to
show any systematic exclusion of a distinct group. In fact,
Roger has not shown that any Christians were excluded.
Moreover, the jury commissioner testified that members of
specific religious denominations are excluded only if they
request exclusion based on their particular religious beliefs.
This practice does not constitute systematic exclusion.
Likewise, Roger’s equal protection claim fails because the
jury commissioner did not disclose that any specific religious
denomination, or Christians, are singled out for disparate
treatment. The evidence only supports the conclusion that
individuals are excluded if exclusion is specifically requested
due to religious beliefs. By no stretch of the imagination does
this meager evidence satisfy the required showings of
systematic exclusion and disparate treatment. Thus, even if
Roger’s claim were not procedurally defaulted, we would
conclude that the Arizona Supreme Court’s decision denying
Roger’s fair cross-section/equal protection claim was not
contrary to or an unreasonable application of Supreme Court
precedent.
62                  MURRAY V. SCHRIRO

     C. Claim Six - Batson Violation

   Roger contends that the state violated Batson when it
dismissed the only two Hispanic potential jurors from the jury
venire.

    For the reasons set forth in Robert Murray v. Schriro,
745 F.3d 984, 1006–10 (9th Cir. 2014), we affirm the district
court’s denial of Roger’s Batson claim. In addition, we are
not persuaded that the outcome of the Batson issue would
change had comparisons been made between prospective
juror Alvarado and prospective jurors A and N. As Roger
noted, both these jurors “edged . . . away from their
questionnaire answers” indicating indecisiveness. The third
juror mentioned by Roger, Juror B, gave no indication of
indecisiveness.

     D. Claim Seven - Denial of Request to Inspect the
        Crime Scene

    Citing United States v. Valenzuela-Bernal, 458 U.S. 858
(1982), Roger argues that the trial court denied him due
process by denying his new investigator access to the crime
scene for inspection. Additionally, Roger asserts that the
Supreme Court of Arizona’s ruling “is not entitled to any
deference,” because it did not address his federal
constitutional claims and relied only on state law. Roger’s
arguments are unpersuasive.

    The last reasoned decision addressing the inspection due
process claim is the decision of the Supreme Court of Arizona
denying relief. The state court found that Roger failed to
support the purported necessity of viewing the crime scene
for a second time. See Murray, 906 P.2d at 569.
                     MURRAY V. SCHRIRO                        63

     The United States Supreme Court has instructed that
evidence sought by a defendant must be material. See United
States v. Bagley, 473 U.S. 667, 682 (1985). Merely showing
that access to evidence was denied does not establish a
constitutional violation. See Valenzuela-Bernal, 458 U.S. at
867. The defendant must make a plausible argument that the
evidence sought is “both material and favorable to his
defense,” id., and not “merely cumulative” to other evidence.
Id. at 873 (footnote reference omitted). Evidence is material
in the constitutional sense if there is a “reasonable likelihood”
that it “could have affected the judgment of the trier of fact”
if it had been made available to the defense. Id. at 874.

    Roger’s lead counsel and his investigator inspected the
crime scene shortly after the crime was committed and
approximately a year prior to his trial. See Murray, 906 P.2d
at 569. Co-counsel from the same public defender’s office
and an additional investigator were subsequently assigned to
Roger’s defense team. See id. However, neither the new
attorney nor the new investigator visited the crime scene prior
to trial. See id. During trial, defense counsel requested an
opportunity to revisit the crime scene. See id. The trial court
denied the request. See id. The Arizona Supreme Court
affirmed the trial court’s finding that Roger failed to establish
the need for a second inspection. See id.

   The state court decision was not contrary to Valenzuela-
Bernal. In Valenzuela-Bernal the Court explained that a
defendant only has a right to evidence that is “relevant and
material” to his defense. Valenzuela-Bernal, 458 U.S. at 867.
Roger failed to show how inspection of the crime scene a
year later, and after the scene had been cleaned, see Murray,
906 P.2d at 569, would uncover evidence that was “relevant
and material” to his defense. Valenzuela-Bernal, 458 U.S. at
64                  MURRAY V. SCHRIRO

867. The Arizona Supreme Court’s decision was not contrary
to or an unreasonable application of Supreme Court
precedent. See id. at 874 (holding that there was no
constitutional violation in similar circumstances).

    Roger also contends that because the Arizona Supreme
Court did not address his federal due process claim, no
AEDPA deference is warranted on this issue. However, as
stated, even if the state court does not analyze a claim, we
nevertheless review the state court decision with deference to
the state court’s denial of relief. See Johnson, 133 S. Ct. at
1094; see also Cunningham v. Wong, 704 F.3d 1143, 1153
(9th Cir. 2013). In the same vein, if a state court does not
explicitly state the reason for denying a claim, we presume
that the state court adjudicated the claim on its merits. See
Richter, 131 S. Ct. at 784–85. Although this presumption
“may be overcome when there is reason to think some other
explanation for the state court’s decision is more likely,” id.
at 785, Roger does not suggest any such reason. When a state
court determines a federal claim without discussing federal
precedent, AEPDA deference to the state court’s decision
remains, and it is still “the habeas petitioner’s burden” to
show “there was no reasonable basis for the state court to
deny relief. . . .” Id. at 784.

    Although the Arizona Supreme Court did not explicitly
address Roger’s federal constitutional claim, it provided
adequate reasoning based on state law to affirm the trial
court’s ruling denying Roger’s motion to revisit the crime
scene. See Murray, 906 P.2d at 569. Notably, in his brief to
the Arizona Supreme Court, Roger cited Valenzuela-Bernal,
a case he characterized as incorporating “constitutionally
guaranteed access to evidence.” See Johnson, 133 S. Ct. at
1099 (referring to the defendant’s brief to determine that the
                    MURRAY V. SCHRIRO                        65

federal claim was addressed). Moreover, in denying Roger’s
claim, the Arizona Supreme Court cited Arizona Rule of
Criminal Procedure 15.1(e), which governs the circumstances
under which a trial court may grant additional disclosure
requests by the defendant. See Murray, 906 P.2d at 569. As
in Johnson, it is “difficult to imagine” the Arizona Supreme
Court “announcing an interpretation of” Rule 15.1(e) “that it
believed to be less protective than” the Fourteenth
Amendment, “as any such interpretation would provide no
guidance to state trial judges bound to follow both state and
federal law.” Johnson, 133 S. Ct. at 1098. And, as we have
already explained, it is apparent that “neither the reasoning
nor the result of the state-court decision contradicts” the
Supreme Court’s rule in Valenzuela-Bernal. Early v. Packer,
537 U.S. 3, 8 (2002). Thus, the Arizona Supreme Court
addressed Roger’s Sixth Amendment claim when it denied
relief on Roger’s challenge to the denial of the requested
inspection, and its determination was not contrary to or an
unreasonable application of clearly established federal law.
See Johnson, 133 S. Ct. at 1099.

   E. Claim Sixteen - Omission                of    Voluntary
      Intoxication Instruction

    Citing Dunckhurst v. Deeds, 859 F.2d 110 (9th Cir. 1988),
Roger contends that failure of the trial court to give a
voluntary intoxication instruction, violated his due process
right to a fair trial. Both defendants requested an intoxication
instruction, which the trial court denied, reasoning that the
defendants “ha[d not] made out any credible evidence on
intoxication.”

    Roger’s reliance on Dunckhurst is misplaced. Dunckhurst
is a pre-AEDPA case relying on our precedent developed
66                       MURRAY V. SCHRIRO

during direct appeal of criminal convictions. See 859 F.2d at
114 (citing United States v. Lesina, 833 F.2d 156 (9th Cir.
1987)). Once again, our circuit precedent is only relevant to
the extent that “in accordance with [our] usual law-of-the-
circuit procedures, . . . [we] ha[ve] already held that the
particular point in issue is clearly established by Supreme
Court precedent . . .” Marshall, 133 S. Ct. at 1450 (citations
omitted). Dunckhurst does not purport to determine that a
particular rule is clearly established federal law under
Supreme Court precedent. Consequently, Dunckhurst is
inapposite to our analysis on federal habeas review.

    The Arizona Supreme Court provided the last reasoned
decision for this claim, affirming the trial court’s conclusion
that Roger had failed to establish that the alcohol he allegedly
consumed affected his “ability to think, function, or form
intent.” Murray, 906 P.2d at 566. The Arizona Supreme
Court explained, that under A.R.S. § 13-50311 (1992), a
voluntary intoxication instruction “should be given only when
the record supports such an instruction . . . .” Id. at 566–67
(citation omitted). A mere showing of alcohol consumption
alone is inadequate to require giving an intoxication
instruction. See id. at 567. The defendant must also establish


 11
      A.R.S. § 13-503 (1992) provided:

          No act committed by a person while in a state of
          voluntary intoxication is less criminal by reason of his
          having been in such condition, but when the actual
          existence of the culpable mental state of intentionally or
          with the intent to is a necessary element to constitute
          any particular species or degree of offense, the jury
          may take into consideration the fact that the accused
          was intoxicated at the time in determining the culpable
          mental state with which he committed the act.
                     MURRAY V. SCHRIRO                          67

that the effect of the alcohol negated an element of the crime.
See id. The court determined that Roger had failed to meet
this burden. See id.

    Due process does not require the jury to be instructed
regarding the defendant’s intoxication at the time of the
crime. See Montana v. Egelhoff, 518 U.S. 37, 51, 56 (1996).
But, where a state has decided that a party is entitled to an
intoxication instruction, a failure to so instruct the jury is
reviewed to determine if the error has “so infected the entire
trial that the resulting conviction violates due process. . . .”
Estelle, 502 U.S. at 72 (citations omitted). As the Arizona
Supreme Court noted in its decision on direct appeal, “[a]
party is entitled to an instruction on any theory reasonably
supported by evidence. An intoxication instruction should be
given only when the record supports such an instruction.”
State v. LaGrand, 733 P.2d 1066, 1070 (Ariz. 1987) (citations
omitted); see also Murray, 906 P.2d at 566–67. Roger faces
a particularly heavy burden in seeking to establish a due
process violation because a jury instruction was omitted
rather than erroneously given. “An omission, or an
incomplete instruction, is less likely to be prejudicial than a
misstatement of the law. . . .” Henderson v. Kibbe, 431 U.S.
145, 155 (1977).

     As the Arizona Supreme Court noted, Roger did present
evidence that he had been drinking on the night of the crime.
See 906 P.2d at 566. Roger’s counsel stated that “[t]he jury,
from the evidence before it, could perhaps determine that the
defendants over the period of time they had been drinking,
did become intoxicated. . . .” The prosecutor responded that
“the State doesn’t believe there’s any evidence of
intoxication. The only direct testimony on that was a person
at the bar . . . that said they did not appear to be intoxicated or
68                  MURRAY V. SCHRIRO

under the influence. . . .” Based on this evidence, the trial
court–and the Arizona Supreme Court–found that:

       [Murray had not] made out any credible
       evidence on intoxication. The fact that the
       defendants were drinking isn’t–there’s no
       testimony as to what effect that had on their
       ability to think or their abilities to function or
       to form the intent involved, and I will not give
       an instruction on intoxication.

    Roger has only argued that the trial court did not consider
certain facts in making its determination that he had failed to
show that he was intoxicated. Raw speculation aside, Roger
presents no evidence that tends to call into question the trial
court’s factual determination that Roger had not proven that
his drinking on the night of the crime–the only evidence that
could be established–had a substantial effect on him such that
he lacked the requisite intent. Based on our review of the
record, we agree that the evidence did not support Roger’s
voluntary intoxication defense. Therefore, the Arizona
Supreme Court’s denial of Roger’s claim that the trial court’s
omission of the intoxication instruction constituted a due
process violation was not contrary to or an unreasonable
application of federal law as established by the Supreme
Court. See Estelle, 502 U.S. at 72; see also Mathews v.
United States, 485 U.S. 58, 63 (1988) (explaining that a
defendant is only entitled to an instruction on a defense
theory supported by the evidence).
                         MURRAY V. SCHRIRO                           69

      F. Claim Seventeen - Denial of a Lesser Included
         Offense Instruction

    Roger argues that the trial court denied him due process
when it denied the defendants’ request to instruct the jury on
second degree murder as a lesser included offense. Relatedly,
Roger also asserts that the trial court’s decision contravened
Enmund v. Florida, 458 U.S. 782 (1982) and Tison v.
Arizona, 481 U.S. 137 (1987), by imposing the death penalty
when Roger did not intend to take a life or intend that lethal
force be used.

    The last reasoned decision addressing this issue is the
Arizona Supreme Court’s denial of relief, explaining that a
lesser included offense instruction is warranted only if
supported by the evidence. See Murray, 906 P.2d at 567.
The court reasoned that an instruction on second degree
murder would only apply to premeditated murder, but not to
felony murder, which was the crime of conviction. See id. In
addition, the crime of second degree murder is characterized
by evidence of lack of premeditation and deliberation. See id.
The Arizona Supreme Court adopted the trial court’s
determination—considering that the victims were forced to
lie on the carpet and were shot in the back of the head with
different weapons, the only rational inference was that the
murders were deliberate and premeditated, thereby precluding
a verdict of second degree murder.12 See id.

 12
      A.R.S. § 1104 (1992) provided in pertinent part:

          A. A person commits second degree murder if without
          premeditation:

          1. Such person intentionally causes the death of another
          person; or
70                    MURRAY V. SCHRIRO

     “[D]ue process requires that a lesser included offense
instruction be given only when the evidence warrants such an
instruction. . . .” Hopper v. Evans, 456 U.S. 605, 611 (1982)
(citing Beck v. Alabama, 447 U.S. 625 (1980)).

            The element the Court in Beck found
        essential to a fair trial was not simply a lesser
        included offense instruction in the abstract,
        but the enhanced rationality and reliability the
        existence of the instruction introduced into the
        jury’s deliberations. Where no lesser included
        offense exists, a lesser included offense
        instruction detracts from, rather than
        enhances, the rationality of the process. Beck
        does not require that result. Spaziano v.
        Florida, 468 U.S. 447, 455 (1984).

    In Arizona, “[t]o determine whether there is sufficient
evidence to require the giving of a lesser included offense
instruction, the test is whether the jury could rationally fail to
find the distinguished element of the greater offense. . . .”
State v. Krone, 897 P.2d 621, 625 (Ariz. 1995) (in banc)
(quoting State v. Detrick, 873 P.2d 1302, 1305 (Ariz. 1994)
(internal quotation marks omitted)). The Arizona rule
comports with the federal rule and therefore does not offend
constitutional standards. See Hopper, 456 U.S. at 612 (“The


        2. Knowing that his conduct will cause death or serious
        physical injury, such person causes the death of another
        person; or

        3. Under circumstances manifesting extreme
        indifference to human life, such person recklessly
        engages in conduct which creates a grave risk of death
        and thereby causes the death of another person.
                        MURRAY V. SCHRIRO                              71

federal rule is that a lesser included offense instruction should
be given if the evidence would permit a jury rationally to find
a defendant guilty of the lesser offense and acquit him of the
greater.”) (citation, alteration, and internal quotation marks
omitted). Thus, the Arizona Supreme Court’s reliance on this
rule was not contrary to or an unreasonable application of
clearly established federal law.13

    Moreover, at trial, the judge directly asked what evidence
supported an instruction that the offense could have been
something other than first-degree murder. Roger’s counsel
could not point to any actual evidence suggesting anything
other than premeditation. Rather, counsel responded that “we
cannot look into the jury’s mind and determine whether or not
they are going to find premeditation or not. . . .” In turn, the
prosecutor stated:

             Here what we have are repeated gunshots
         on a helpless couple laying on the floor.
         Somebody is guilty of premeditated murder.
         The defendants can argue it’s not them
         certainly, but the way the victims died can
         only be premeditated. There’s no way that
         you can look at that set of facts and say that is
         not premeditated, looking at the analysis
         under Lamb.


  13
     Roger also argues that “[i]f the jury had been given the intoxication
instruction and they had found [his] intoxication negated the specific
intent necessary for a conviction of first degree premeditated murder, then
the jury could have found [him] guilty of second degree murder. . . .” As
we stated above, the record did not support an intoxication instruction, so
this argument is unavailing; the evidence also did not warrant a second-
degree murder instruction based on intoxication.
72                   MURRAY V. SCHRIRO

     Based on the record, the trial court ruled:

        Well, if based on the physical evidence, I
        don’t see how it can be anything other than
        first degree murder. It may not be the
        defendants, that’s for the jury to decide. The
        whole defense is based on other things other
        than the actual death of the victims. It’s either
        first degree murder or it’s nothing. And in
        essence, I agree with the State. So, I will not
        give second degree murder as a lesser.

    The Arizona Supreme Court agreed: “Defendants had the
victims lie on the carpet of their living room and proceeded
to shoot each of them with different weapons in the back of
the head. The only inference that a jury rationally could have
drawn was that defendants premeditated.” Murray, 906 P.2d
at 567 (citation omitted).

    Roger argues that the Arizona Supreme Court’s decision
is contrary to Enmund and Tison. In Enmund, the defendant
participated in a robbery that ultimately resulted in murder,
although the defendant did not murder anyone or intend for
anyone to be killed. See 458 U.S. at 798. The United States
Supreme Court noted that “the Florida Supreme Court held
that the record supported no more than the inference that
Enmund was the person in the car by the side of the road at
the time of the killings, waiting to help the robbers
escape. . . .” Id. at 788. There was no evidence in Enmund
that the defendant actively participated in the murders or was
present when the victims were murdered. See id. Based
solely on those facts, the Supreme Court held that the
imposition of a death sentence upon a defendant who did not
kill or intend to kill the victims violated the Eighth
                    MURRAY V. SCHRIRO                       73

Amendment. See id. at 801. But on the other hand, as the
Supreme Court clarified several years later, “major
participation in the felony committed, combined with reckless
indifference to human life, is sufficient to satisfy the Enmund
culpability requirement” for when the death penalty may be
imposed. Tison, 481 U.S. at 151–52, 158 (so holding where
two brothers brought “an arsenal of lethal weapons” into an
Arizona prison with the intent to arm convicted murderers
and help them escape, “participated fully in the kidnapping
and robbery and watched the killing”).

    Unlike the facts in Enmund, and similar to those in Tison,
the Arizona Supreme Court found that the physical evidence
substantiated Roger’s involvement as an active participant.
See Murray, 906 P.2d at 567. When apprehended, Roger had
blood on his clothes which was not his, but which could have
come from either victim. See id. at 555. Roger also
discarded a loaded .25 caliber gun immediately prior to his
arrest, which was consistent with the fired .25 caliber shell
found at the crime scene. Roger’s footprints were left at the
crime scene, see id. at 554, and the brothers possessed items
stolen from Grasshopper Junction, including rolled coins
stamped with the name and location of the store, and a
cushion cover from the couch that contained blood and tissue
from Applehans. See id. at 554-55. This and additional
evidence tending to show that Roger intended to take life, or
intended that lethal force be used, support much more than a
mere inference that Roger was just a person in a car waiting
to help the actual robbers escape. Therefore, the Arizona
Supreme Court’s ruling that this record did not warrant a
lesser included offense instruction was not contrary to or an
unreasonable application of Supreme Court precedent.
74                 MURRAY V. SCHRIRO

     G. Claim Twenty-Six - Failure to Appropriately
        Consider Mitigating Evidence

    Roger argues that the trial court erroneously determined
that his dysfunctional childhood could not be considered as
an independent mitigation factor. Specifically, Roger asserts
that the state court misapplied Eddings v. Oklahoma,
455 U.S. 104, 115 (1982), and its progeny by requiring a
nexus between the mitigation evidence and commission of the
crimes. Stated differently, Roger contends that the Arizona
court required Roger to demonstrate that the childhood
experiences offered in mitigation contributed to his
commission of the crimes.

    The state counters that Roger did not raise this issue
before the state court, and as a result, it is procedurally
barred. However, Roger raised this issue in his direct appeal
when he argued that the trial court failed to objectively
consider his mitigation evidence. The Arizona Supreme
Court rejected Roger’s claim, finding that the sentencing
court reviewed all of the mitigating evidence, but deemed it
insufficient to outweigh the aggravating factors. See Murray,
906 P.2d at 578–79. Roger now renews his argument that the
Arizona Supreme Court unconstitutionally applied the causal
nexus test. Roger relies on the portion of the Arizona
Supreme Court’s decision addressing the trial court’s finding
that Roger’s childhood was dysfunctional, and concluding
that “he fail[ed] to show how this background impacted his
behavior at Grasshopper Junction.” Id. at 577.

   Citing Styers v. Schriro, 547 F.3d 1026 (9th Cir. 2008),
Roger contends that the Arizona Supreme Court’s analysis of
the trial court’s weighing is contrary to United States
                    MURRAY V. SCHRIRO                        75

Supreme Court authority from Smith v. Texas, 543 U.S. 37
(2004), and related cases.

    Under clearly established Supreme Court authority, a state
court may not treat mitigating evidence of a defendant’s
character or background “as irrelevant or nonmitigating as a
matter of law” simply because it does not have a causal
connection to the crime. See Penry v. Lynaugh, 492 U.S. 302,
318 (1989) (citing Eddings, 455 U.S. at 114 and holding that
a state cannot, “consistent with the Eighth and Fourteenth
Amendments, prevent the sentencer from considering and
giving effect to evidence relevant to the defendant’s
background or character or to the circumstances of the
offense that mitigate against imposing the death penalty”),
abrogated on other grounds by Atkins v. Virginia, 536 U.S.
304 (2002).

    Even if we assume the Arizona Supreme Court did
commit causal nexus error with respect to Roger’s troubled
childhood, the error was harmless and we would still deny his
claim for relief. See Stokley v. Ryan, 705 F.3d 401, 404 (9th
Cir. 2012) (quoting Brecht v. Abrahamson, 507 U.S. 619, 623
(1993)) (explaining that a non-structural error requires
reversal only if it “had substantial and injurious effect or
influence in determining the . . . verdict”). Under Stokley,
where the appellate court reviews all of the mitigating and
aggravating factors individually, and confirms the trial
court’s determination that there are no grounds substantial
enough to warrant leniency, the appellate court’s Eddings
error with respect to a relatively minor mitigating factor does
not create a “reasonable likelihood that, but for a failure to
fully consider [that factor], the [state] courts would have
come to a different conclusion. . . .” 705 F.3d at 405 (citation
omitted). Thus, in Stokley we concluded that the Arizona
76                  MURRAY V. SCHRIRO

Supreme Court’s Eddings error, if any, with respect to family
history or good behavior while imprisoned, was harmless.
See id. Here, as in Stokley, after “review[ing] and
discuss[ing] each of the aggravating and mitigating factors
individually,” id. at 404, the Arizona Supreme Court agreed
with the trial court that Roger’s mitigation evidence was
minimal “at best” and that there was certainly “no mitigating
evidence sufficiently substantial to call for leniency. . . .”
Murray, 906 P.2d at 579. Therefore, any Eddings error with
respect to the effect of Roger’s troubled childhood does not
raise a reasonable likelihood that fuller consideration of that
relatively minor factor would have led the Arizona courts to
reach a different conclusion. In other words, Roger “cannot
demonstrate actual prejudice because he has not shown that
the error, if any, had a substantial and injurious impact on the
verdict. . . .” Stokley, 705 F.3d at 404.

     H. Claim Forty-Four - Denial of Request to Replace
        Counsel Due to Irreconcilable Conflict

    Roger asserts that his Sixth Amendment right to counsel
was violated because of an irreconcilable conflict with his
counsel. Roger argues that his claim is not procedurally
barred, because he raised the issue to the Arizona Supreme
Court and in his PCR petition. The state counters that this
issue is procedurally barred as determined in the PCR court’s
decision dated January 10, 2000. We need not resolve this
procedural point, because to the extent Roger argues that his
claim may be resurrected under Martinez, habeas relief is not
warranted. Roger might be entitled to a remand under
Martinez if he could establish that his PCR counsel was
ineffective for failing to raise the irreconcilable conflict
asserted by Roger, and that the underlying IAC claim is
“substantial.” Sexton v. Cozner, 679 F.3d 1150, 1157 (9th
                     MURRAY V. SCHRIRO                        77

Cir. 2012), as amended. We examine the record to determine
whether Roger has made the required showing of
ineffectiveness of PCR counsel. See id. To do so, Roger
must establish that his trial counsel’s performance was
deficient and that he was prejudiced as a result. See id.; see
also Strickland, 466 U.S. at 687 (articulating standard for
ineffective assistance of counsel claim). To demonstrate that
the performance by PCR counsel was deficient, Roger
must show that counsel’s failure to raise the underlying IAC
claim did not “fall[ ] within the wide range of reasonable
professional assistance” and “overcome the presumption that,
under the circumstances, the challenged action might be
considered sound trial strategy. . . .” Strickland, 466 U.S. at
689 (citation and internal quotation marks omitted).
Prejudice is shown by evidence of 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. Here, Roger would have to
establish that the outcome of his PCR proceedings would
have been different.

    If there is a failure of proof on either prong, habeas relief
is not warranted. See Gentry v. Sinclair, 705 F.3d 884, 899
(9th Cir. 2013), as amended. A defendant’s disagreement
with trial counsel’s strategy does not constitute deficient
performance on the part of trial counsel. See Strickland,
466 U.S. at 689–91; see also Raley v. Ylst, 470 F.3d 792, 799
(9th Cir. 2006).           Additionally, to demonstrate an
irreconcilable conflict, Roger must establish that there was a
complete breakdown of communication that substantially
interfered with the attorney-client relationship. See United
States v. Mendez–Sanchez, 563 F.3d 935, 943 (9th Cir. 2009).
78                     MURRAY V. SCHRIRO

    At the hearing held in response to Roger’s request to
terminate his attorneys, Roger confirmed his wish to end his
relationship with his attorneys due to a conflict of interest.
Roger’s trial counsel explained to the court that there was an
irreconcilable difference of opinion regarding the strategy for
the penalty phase proceedings. The trial court ultimately
granted Roger’s motion to represent himself and allowed an
attorney from the public defender’s office to remain as
advisory counsel. One week later, Roger filed a motion
requesting appointed counsel. Counsel from the public
defender’s office informed the trial court that an ethical
conflict remained due to the office’s representation of Roger
and another client with an adverse interest who was to testify
in response to a prospective witness for Robert’s case.
Counsel also reminded the court about the conflict between
counsel and Roger regarding strategy for the penalty phase.
Counsel suggested to the court that another attorney represent
Roger. The court reviewed the suggestion and reappointed
counsel from the public defender’s office, with Roger
agreeing. The conflict presented to the trial court by Roger
concerned strategy for the penalty phase. This issue
implicates attorney strategy rather than irreconcilable
conflict. Thus, Roger failed to establish that his claim of
irreconcilable conflict was of sufficient merit to substantiate
a claim of ineffective assistance of counsel.14 See Sexton,
679 F.3d at 1156–57 (explaining that a defendant cannot
establish that counsel’s performance fell below an objective

  14
     The Arizona Supreme Court interpreted this issue as a request for
hybrid representation and ruled that the trial court did not abuse its
discretion when it denied Roger’s request. See Murray, 906 P.2d at
560–61. Although its conclusion was couched in the context of hybrid
representation, the Arizona Supreme Court addressed Roger’s assertion of
irreconcilable differences and affirmed the trial court’s reappointment of
counsel from the public defender’s office. See id.
                        MURRAY V. SCHRIRO                               79

standard of reasonableness when the only disagreement
concerned strategy); cf. Daniels v. Woodford, 428 F.3d 1181,
1199–1200 (9th Cir. 2005) (recognizing an irreconcilable
conflict where there was a complete lack of communication
between attorney and client).

    Roger failed to establish that the conflict between his
counsel and him was indeed irreconcilable. See Mendez-
Sanchez, 563 F.3d at 943 (noting that defendant’s relationship
with counsel did not rise to the level of irreconcilable conflict
when the conflict was generated from defendant’s general
unreasonableness).         Therefore, the PCR counsel’s
performance was not deficient. Because Roger did not
establish that his conflict with counsel was irreconcilable, his
ineffective assistance of counsel claim lacks sufficient merit
to warrant a Martinez remand.15 See Sexton, 679 F.3d at
1156–57 (noting that an IAC claim must be substantial to
warrant a Martinez remand and that disagreement regarding
strategy does not constitute ineffectiveness of counsel); but
see Detrich v. Ryan, 740 F.3d 1237, 1248 (9th Cir. 2013) (W.
Fletcher, J., plurality) (explaining that in most cases,
Martinez motions should be remanded to the district court for
a decision in the first instance).




  15
     In the alternative, Roger contends that the district court erred in not
addressing his motion to amend his petition to include this claim. Roger
relies on the Second Circuit’s decision in Littlejohn v. Artuz, 271 F.3d 360
(2d Cir. 2001). However, Littlejohn is not binding precedent in this
circuit. More importantly, any failure to address Roger’s request for leave
to amend was harmless in view of the lack of merit to his claim. See
Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (noting that denial of
leave to amend is appropriate if amendment would be futile).
80                   MURRAY V. SCHRIRO

     I. Claim Forty-Five - Ineffective Assistance of Trial
        Counsel Due to Counsel’s Inattentiveness

    Roger contends that he was denied the effective assistance
of counsel, because his counsel slept during substantial
portions of his trial. Roger further asserts that his evidentiary
hearing regarding this issue violated due process, because the
judge presiding at his trial was also the presiding judge at his
PCR hearing.

    The Sixth Amendment guarantees the accused the “right
to the effective assistance of counsel.” United States v.
Cronic, 466 U.S. 648, 655–56 (1984). The Supreme Court
“has concluded that the assistance of counsel is among those
‘constitutional rights so basic to a fair trial that their
infraction can never be treated as harmless error.’” Holloway
v. Arkansas, 435 U.S. 475, 489 (1978) (citing Chapman v.
California, 386 U.S. 18, 23 (1967)). Moreover, “when a
defendant is deprived of the presence and assistance of his
attorney, either throughout the prosecution or during a critical
stage in, at least, the prosecution of a capital offense, reversal
is automatic.” Id. (citations omitted). We have held that
when counsel sleeps through a substantial portion of a trial,
his client has been deprived of effective legal assistance,
resulting in inherent prejudice. See Javor v. United States,
724 F.2d 831, 833–34 (9th Cir. 1984). Roger relies solely on
our decision in Javor to support his claim. Nevertheless,
Roger’s reliance on Javor is misplaced. Javor is a pre-
AEDPA case that was crafting a rule from existing Supreme
Court precedent. See id. We reiterate that our circuit
precedent is only relevant to the extent that, “in accordance
with [our] usual law-of-the circuit procedures, . . . [we] ha[ve]
already held that the particular point in issue is clearly
established by Supreme Court precedent . . . .” Marshall,
                    MURRAY V. SCHRIRO                        81

133 S. Ct. at 1450 (citations omitted). As such, Javor is
inapposite to our analysis on federal habeas review.

    The last reasoned state court decision addressing this
claim was the PCR court’s order dated March 21, 2002.
After a two-day hearing including witness testimony, the
PCR court concluded that Roger’s counsel did not actually
sleep during the trial. Robert’s trial counsel testified that
Roger’s trial counsel had a reputation for “dozing off” in
court. She stated that she personally observed Roger’s
counsel “in a posture that look[ed] like he’s asleep.”
However, she admitted that she was not sure at times whether
he was dozing or just listening with his eyes closed. Robert’s
counsel did not contemporaneously inform the trial court of
her observations.

    A former juror testified that she vaguely remembered
Roger’s lawyer nodding off during the trial. During cross-
examination, she conceded that Roger’s counsel did not close
his eyes for long periods of time, and that she would have
informed a bailiff if Roger’s counsel had been asleep for
significant portions of the trial.

     Roger’s appellate counsel testified that Roger specifically
told her that his trial counsel appeared to doze during trial.
She also mentioned that she did not raise the issue of Roger’s
trial counsel sleeping, because it was not part of the record on
direct appeal.

    Roger’s trial counsel testified that he remembered Roger
complaining about him sleeping during jail visits, but not
during trial. He did not remember sleeping during the trial.
The PCR court directly questioned Roger’s trial counsel,
asking explicitly whether he slept during the trial. In reply,
82                  MURRAY V. SCHRIRO

Roger’s counsel stated: “Your Honor, quite frankly, I can’t
say. I wouldn’t be the one to really know that. I don’t think
I did, but there is a possibility I did. But it would have been
basically just a few seconds more than anything else. A cat
nap type thing.” He did not admit to sleeping. The PCR
court then recalled on the record that Roger’s trial counsel
appeared generally to be “fired up” during the cases he had
tried before the judge. Trial counsel agreed that he indeed
was typically “fired up” for his cases and that he had “tried to
give [Roger’s trial] more because of the importance of it.”

     Roger testified that he observed his trial counsel asleep
first at the jail and then almost daily during trial. During the
testimony of Detective Lent, the footprint expert, Roger
observed his trial counsel asleep for four to five minutes.
Roger also observed his trial counsel sleeping during the
medical examiner’s testimony. Roger remembered his trial
counsel sleeping through other witnesses as well. Roger
recalled that he informed his other trial counsel and his
appellate counsel about his observations. Roger did not
inform the trial court about his observations.

    During cross-examination, the state reviewed the trial
transcript with Roger, specifically emphasizing witness
testimony where Roger had testified that his counsel was
asleep. The state consistently established that Roger’s trial
counsel was engaged during the witness testimony that Roger
previously associated with his counsel’s sleeping. Roger
admitted during cross-examination that he did not specify in
his affidavit precisely when his trial counsel was sleeping.

   The prosecutor testified that Roger’s trial counsel
appeared engaged and active during trial. The prosecutor
observed Roger’s trial counsel listening with his eyes closed.
                    MURRAY V. SCHRIRO                        83

According to the prosecutor, Roger’s trial counsel had a habit
of closing his eyes when he was thinking, and he would nod
occasionally, but when a response was required he would
seamlessly open his eyes and respond appropriately,
appearing to be completely engaged.

     Neither the bailiff nor the investigator remembered
Roger’s trial counsel sleeping during the trial. The same was
true for co-counsel. Co-counsel did not observe Roger
kicking his trial counsel or trial counsel falling asleep during
trial. Neither did co-counsel recall Roger speaking to him
about trial counsel falling asleep during trial.

    After oral argument and after reviewing briefs from both
counsel, the PCR court entered a minute order denying relief.
The PCR court acknowledged that Robert’s trial counsel and
a former juror testified to observing Roger’s trial counsel
sleeping during portions of the trial. However, the PCR court
noted that other witnesses and the trial transcript undermined
this testimony. The PCR court found that the trial transcript
reflected that Roger’s trial counsel was “actively engaged in
the trial.” The PCR court credited the testimony of trial
counsel that he did not recall sleeping during the trial. In
addition, the PCR court found the testimony of the
prosecutor, the investigator, and the bailiff more credible.
Each of these three witnesses denied ever seeing Roger’s trial
counsel asleep during the trial. The PCR court was also
persuaded by co-counsel’s testimony that Roger never
complained to co-counsel about trial counsel sleeping.

    We cannot conclude that the PCR court’s rejection of
Roger’s claim was based on an unreasonable determination
of the facts. See 28 U.S.C. § 2254(d)(2). Indeed, the record
of the trial proceedings confirms the reasonableness of the
84                  MURRAY V. SCHRIRO

PCR court’s finding that Roger’s counsel was not asleep
during the trial. Most telling was the state’s demonstration
from the transcripts that counsel was actively questioning
witnesses and objecting to testimony at times when Roger
accused counsel of being asleep. See Hibbler v. Benedetti,
693 F.3d 1140, 1148–50 (9th Cir. 2012) (concluding, after
reviewing the evidence presented in state court, that the state
court’s determination was not unreasonable). Because
Roger’s Strickland claim hinges on the fact that his counsel
slept through substantial portions of trial, which the record
does not support, we conclude that the state court did not
unreasonably apply clearly established Supreme Court
precedent. We affirm the district court’s denial of relief on
this claim.

    The Arizona Supreme Court’s rejection of Roger’s claim
that he was denied a full and fair hearing also was not
contrary to, or an unreasonable application of clearly
established Supreme Court precedent. We have stated that
“[i]t has long been regarded as normal and proper for a judge
to sit in the same case upon its remand, and to sit in
successive trials involving the same defendant. . . .”
Gerlaugh v. Stewart, 129 F.3d 1027, 1036 (9th Cir. 1997)
(quoting Liteky v. United States, 510 U.S. 540, 551 (1994)).
There must be more than “the false assumption that trial
judges are not capable of doing what the law requires” to
justify the requirement that a different judge hear subsequent
proceedings. Id. The Supreme Court has also recognized that
“knowledge (and the resulting attitudes) that a judge properly
acquired in an earlier proceeding [is] not . . .
‘extrajudicial’. . . . [T]rial rulings have a judicial expression
rather than a judicial source. They may well be based upon
extrajudicial knowledge or motives. . . .” Liteky, 510 U.S. at
545 (citations omitted) (emphases in the original).
                    MURRAY V. SCHRIRO                    85

       The judge who presides at a trial may, upon
       completion of the evidence, be exceedingly ill
       disposed towards the defendant, who has been
       shown to be a thoroughly reprehensible
       person. But the judge is not thereby recusable
       for bias or prejudice, since his knowledge and
       the opinion it produced were properly and
       necessarily acquired in the course of the
       proceedings, and are indeed sometimes (as in
       a bench trial) necessary to completion of the
       judge’s task. As Judge Jerome Frank pithily
       put it:     “Impartiality is not gullibility.
       Disinterestedness does not mean child-like
       innocence. If the judge did not form
       judgments of the actors in those court-house
       dramas called trials, he could never render
       decisions.” Also not subject to deprecatory
       characterization as “bias” or “prejudice” are
       opinions held by judges as a result of what
       they learned in earlier proceedings. It has
       long been regarded as normal and proper for
       a judge to sit in the same case upon its
       remand, and to sit in successive trials
       involving the same defendant.

Id. at 550–51 (citations omitted).

    Roger has not identified any Supreme Court case holding
that a defendant is deprived of due process when the trial
judge presides over post-conviction proceedings. Rather, the
opposite is true. See id.; see also Cook v. Ryan, 688 F.3d
598, 612 (9th Cir. 2012) (noting that the trial judge was
“ideally situated” to make an assessment of the facts when
resolving post-conviction issues) (quoting Schriro v.
86                  MURRAY V. SCHRIRO

Landrigan, 550 U.S. 465, 476 (2007)). The distinction is
plain. As a fact witness, the judge would be seeking to
persuade the finder of fact to a certain view of the evidence.
As the presiding jurist, the judge is the factfinder, with
absolutely no incentive to shade the facts one way or the
other. See, e.g., Fed. R. Evid. 605 (providing that the
presiding judge may not testify as a witness in the trial over
which he presides); see also United States v. Berber-Tinoco,
510 F.3d 1083, 1091 (9th Cir. 2007) (holding that a trial court
judge is not a competent witness to factual matters in a case
over which he presides). No similar conundrum exists when
the trial judge presides over post-conviction proceedings. In
the post-conviction proceedings, the judge functions as a
reviewer of the trial proceedings rather than as a chronicler of
the facts. As the Supreme Court has explained, the trial
judge’s unique knowledge of the trial court proceedings
renders him “ideally situated” to review the trial court
proceedings. Landrigan, 550 U.S. at 476. Roger’s due
process rights were honored in full. Serving as an adjudicator
rather than as a witness, the PCR court determined that
Roger’s claim lacked merit.

    In this case, the only evidence that Roger puts forward is
that the judge stated: “I guess I have to tell you I remember
some things about this trial very well . . . and I–I never saw
[Roger’s trial counsel] asleep.” Roger relies upon this
statement to demonstrate that the trial judge “was a key and
biased witness who did not testify but ruled on the motions
while his own observations were not subject to cross-
examination.” It is important to consider the trial judge’s full
comments:

       Well, I guess–I guess I have to tell you I
       remember some things about this trial very
                    MURRAY V. SCHRIRO                       87

       well. And one was that [Roger’s trial
       counsel] was very aggressive, very emphatic
       and–but of course you know–and I–I never
       saw him asleep. But, you know, I guess I’ll
       let you have an opportunity to show me that
       he was sleeping during substantial portions of
       the trial because we have the Affidavits that
       say he was. But I have to tell you, I’m
       skeptical about that because I remember how
       aggressive he was–aggressively he argued
       when we were off the record, and even when
       we were on the record, the objections in the
       case.

       So, I guess I’ll set that–that one I think
       probably should be set for an evidentiary
       hearing, because you know, it’s–it’s certainly
       not something that was on the record and
       certainly not something that I noticed. So
       number four we’ll set for evidentiary hearing.

     Read in the context of the judge’s full statement, Roger’s
claim is unfounded. The judge stated that his recollection
was that Roger’s trial counsel was very aggressive and
involved and that he had no memory of Roger’s trial counsel
sleeping. Rather than merely denying the claim based upon
his own recollection, however, the judge elected to hold an
evidentiary hearing because “we have the Affidavits that he
was [sleeping].” This situation is no different from a
situation where a judge retains unexpressed recollections of
trial matters and presides over an ensuing evidentiary hearing.
In that vein, the judge’s articulated skepticism does not
provide a basis for Roger’s claim of judicial bias because the
judge’s “knowledge and the opinion it produced were
88                  MURRAY V. SCHRIRO

properly and necessarily acquired in the course of the
proceedings. . .” Liteky, 510 U.S. at 551. Therefore, the
Arizona Supreme Court’s rejection of Roger’s Sixth
Amendment claim of judicial bias was not contrary to or an
unreasonable application of clearly established Supreme
Court precedent.

    Finally, Roger asserts that he is entitled to an evidentiary
hearing to develop this claim. However, because we review
Roger’s claim under § 2254(d) rather than de novo, Supreme
Court precedent bars him from receiving an evidentiary
hearing. See Pinholster, 131 S.Ct. at 1398 (directing that
habeas claims under AEDPA be resolved on the record before
the state court).

     J. Claim Forty-Eight - Ineffective Assistance of Trial
        Counsel Based on Counsel’s Failure to Present an
        Exculpatory Witness

    Roger contends that his counsel was ineffective because
he “never bothered to interview [a] critical witness. . . .”
According to Roger, the witness, John Anthony (Anthony)
was located by Robert’s attorney’s investigator approximately
one week before trial. Roger complains that despite the
discovery of this critical witness, his trial counsel failed to
interview the witness, depose him, call him to testify, or
request a continuance. Roger asserts that his trial counsel had
“no strategic reason for not calling [the witness] directly.”
Failure to call this witness, Roger argues, resulted in the
absence of evidence tending to implicate others and
suggesting that he was not present at the scene of the crime.
Roger maintains that any reasonable attorney would have
called this witness.
                        MURRAY V. SCHRIRO                          89

    The state PCR court’s denial of this claim did not provide
a reasoned explanation. See Richter, 131 S. Ct. at 784
(recognizing that AEDPA “does not require that there be an
opinion from the state court explaining the state court’s
reasoning. . . .”) (citations omitted). We can, however, look
through to the evidentiary hearing and oral argument during
which the PCR judge articulated the reasons for his later
summary reiteration of his previous decision denying
Robert’s identical claim. In this situation, “‘whe[re] 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, 709 F.3d at 939
(quoting Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir.
2000)). “Crucially, this is not a de novo review of the
constitutional question. Rather, ‘even a strong case for relief
does not mean the state court’s contrary conclusion was
unreasonable.’” Id. (citations omitted).

    Through an evidentiary hearing on Robert’s identical
claim, the PCR court learned that Anthony, the allegedly
exculpatory witness, purportedly witnessed a blue car parked
outside the Grasshopper Junction store on the same night as
the murders.        Anthony informed the prosecution’s
investigator that he thought he saw the victim Morrison with
three men, none of whom resembled Robert.16 Anthony’s
testimony would have supported the defense’s theory of the
case, that Roger and Robert happened to be at Grasshopper
Junction, but did not commit the murders. Robert’s trial
counsel informed the court that neither she nor her
investigator were able to contact Anthony, which is why he
was never called as a witness. Although her investigator

 16
      This is the same exculpatory witness to whom Roger refers.
90                   MURRAY V. SCHRIRO

discovered that Anthony was in a Veterans Administration
treatment center in California, the investigator was never able
to make contact with Anthony.

     The PCR court found that Robert’s trial counsel had
investigated the exculpatory witness to the best of her ability.
The PCR judge stated: “We don’t have any proof that the
witness would have said what’s in the report. We still
haven’t found the witness.” The PCR judge recalled that, as
trial judge, he would not have granted a continuance for
further investigation, and had to believe that both Robert’s
trial counsel and Roger’s trial counsel were still trying to find
Anthony through the end of the case. The PCR court found
that Robert’s counsel was not deficient in her performance,
and that even if she were deficient, the outcome of the trial
would not have changed.

    At the oral argument of Roger’s identical claim, the PCR
judge indicated that he had already heard and considered
evidence from Robert regarding this exact claim, resulting in
denial of Robert’s claim. The judge explained that he denied
Robert’s identical claim because the evidence had established
that the witness was unavailable–he could not be located.
And, even if he had been located just prior to trial, counsel
could not have “gotten him [to court] as a witness.” This
evidence before the state court “was sufficient to resolve the
factual question” whether Roger’s counsel performed
deficiently, and thus the PCR court’s failure to hold an
evidentiary hearing on the issue did not “render its fact-
finding process unreasonable,” Hibbler, 693 F.3d at 1147.
Because Roger did not demonstrate that his trial counsel had
performed deficiently, the PCR court’s rejection of Roger’s
claim was not contrary to established Supreme Court
precedent. See Strickland, 466 U.S. at 687.
                    MURRAY V. SCHRIRO                       91

    Before us, Roger argues that the trial judge erred by not
holding a separate evidentiary hearing before resolving his
identical claim. However, Roger failed to adduce any
evidence raising a question regarding the actual availability
of the witness, or regarding a lack of diligence by his counsel
in attempting to locate the witness. Roger merely stated:

       [My] position is that any reasonably effective
       criminal defense lawyer would have seen that
       he was a crucial witness at trial, would have
       located him, would have found him, would
       have subpoenaed him, would have had him in
       court and would have had him testify. [Trial
       counsel] didn’t do any of those things, period.

    Absolutely no evidence was presented to the PCR court
to substantiate Roger’s assertions. Only speculation was
offered. Specifically, Roger asked for funds so he could:

       find Mr. Anthony nine years after the fact so
       [he could] present Mr. Anthony to [the PCR
       court] so that [the PCR court could] live and
       in color hear Mr. Anthony, hear his testimony,
       evaluate his credibility, and then make a
       determination whether if called by an
       effective counsel Mr. Anthony could have
       made a difference.

    After considering Roger’s speculative proffer, the PCR
judge had no reason to hold another evidentiary hearing,
especially in view of the PCR judge’s recognition that
“there’s absolutely no proof at all that [Anthony] was
available for the trial.”
92                  MURRAY V. SCHRIRO

    Critical to the PCR judge’s decision was the fact that
“even if [Roger’s counsel] was incompetent, it would not
have made a difference as far as the verdict was concerned.
So it would not have made a difference. . . .” Thus, it fairly
appears that the judge found the evidence of guilt so
overwhelming that any testimony Anthony could have given
would not have resulted in a different verdict. In other words,
Roger could not establish Strickland prejudice. Ultimately,
after evaluating the evidence presented during Robert’s
evidentiary hearing and Roger’s failure to proffer any further
relevant evidence, the PCR court summarily denied Roger’s
claim of ineffective assistance of counsel.

    The district court denied Roger’s request for an
evidentiary hearing, and agreed with the factual findings
made by the state court. The district court correctly denied a
federal evidentiary hearing because federal habeas review is
limited to the record before the state court. See Pinholster,
131 S. Ct. at 1398–1400. Viewing that record, the district
court explained that to grant habeas relief, the reviewer would
have to find that the jury would have believed the defense’s
theory that Robert and Roger burglarized the victims’ store
and home after finding the victims already dead. In support
of this theory, Roger relied on Anthony’s statement regarding
the three men he observed at the store who did not resemble
Robert and Roger and who drove a different car; a statement
from Angela Anthony that she heard a man threaten one of
the victims the day prior to the murders; and proffered
testimony from an unidentified witness that Robert and Roger
were elsewhere when the three men were spotted at the store.
Roger relies most heavily on the statement of John Anthony
as the basis for his IAC claim.
                    MURRAY V. SCHRIRO                        93

    The state court determined that Roger’s counsel was not
ineffective in this respect, and the state court’s determination
was not contrary to, or an unreasonable application of,
Strickland or other Supreme Court precedent. To establish
ineffective assistance of counsel the petitioner must hurdle an
extremely high bar. See Richter, 131 S. Ct. at 788.
Strickland provides the legal standard for assessing a claim of
ineffective assistance of counsel on habeas review. See
466 U.S. at 685–87.

        First, the defendant must show that counsel’s
        performance was deficient. This requires
        showing that counsel made errors so serious
        that counsel was not functioning as the
        “counsel” guaranteed the defendant by the
        Sixth Amendment. Second, the defendant
        must show that the deficient performance
        prejudiced the defense. This requires showing
        that counsel’s errors were so serious as to
        deprive the defendant of a fair trial, a trial
        whose result is reliable. Unless a defendant
        makes both showings, it cannot be said that
        the conviction or death sentence resulted from
        a breakdown in the adversary process that
        renders the result unreliable.

Id. at 687.

    To meet the first prong “the defendant must show that
counsel’s representation fell below an objective standard of
reasonableness.” Id. at 688. This inquiry is “highly
deferential.” Id. at 689; see also Richter, 131 S. Ct. at 788.
When Strickland’s standards are coupled with the provisions
of AEDPA, review is “doubly deferential.” Richter, 131 S.
94                  MURRAY V. SCHRIRO

Ct. at 788. “[C]ounsel has a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary. . . .” Strickland,
466 U.S. at 691. Reasonableness is viewed as of the time of
the conduct and against the background of the facts of the
case. See Rompilla v. Beard, 545 U.S. 374, 381 (2005). The
duty to investigate does not require “defense lawyers to scour
the globe on the off chance something will turn up;
reasonably diligent counsel may draw a line when they have
good reason to think further investigation would be a
waste. . . .” Id. at 383 (citations omitted).

    The second prong requires the defendant to “show 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.”
Strickland, 466 U.S. at 694. The question for a reviewing
court applying Strickland together with the § 2254(d) overlay
is whether there is a “reasonable argument that counsel
satisfied Strickland’s deferential standard,” such that the state
court’s rejection of the IAC claim was not an unreasonable
application of Strickland. Richter, 131 S. Ct. at 788. Relief
is warranted only if no reasonable jurist could disagree that
the state court erred. See Pinholster, 131 S. Ct. at 1402.

    Even on de novo review, Roger’s IAC claim falters on
both prongs of the Strickland standard. Counsel was not
deficient, and Roger suffered no Strickland prejudice. As
discussed, the PCR court held an evidentiary hearing before
resolving Robert’s IAC claim predicated on his counsel’s
failure to produce John Anthony as a witness. The record
reflects that the exculpatory witness was not available and
that Robert’s counsel made a reasonable effort to locate and
                    MURRAY V. SCHRIRO                        95

present the witness. Counsel’s performance was not deficient
in view of her reasonable investigatory efforts. See Rompilla,
545 U.S. at 382–83. We also agree with the district court that
the overwhelming evidence of guilt forecloses any credible
argument that the outcome of the trial would have been
affected by the proffered exculpatory evidence. To acquit
Robert and Roger, the jury would have had to believe that the
brothers found the victims already dead and got the victims
blood on their clothes while burglarizing the store and the
residence. This scenario, by the way, was totally inconsistent
with the facts that the male victim’s wallet containing $800
was left undisturbed in his pants pocket, and that $172 was
found on a chair. The implausibility of the proffered
exculpatory version of events and the strength of the
inculpatory evidence both bolster the state court’s finding
under the doubly deferential AEDPA review applicable to
IAC claims. See Richter, 131 S. Ct. at 787–88. Because even
under de novo review the state court’s denial of Roger’s IAC
claim that parroted Robert’s claim was not contrary to or an
unreasonable application of Strickland, Roger’s claim fails.
See id.

IV.    SUMMARY

    We agree with the district court’s conclusion that Roger
was not entitled to habeas relief on any of the certified claims
because the state court’s rejection of these claims was not
contrary to or an unreasonable application of AEDPA. Even
though this sensational, small-town murder understandably
generated substantial media coverage, the state court’s
decision that the coverage was not constitutionally prejudicial
was not contrary to or an unreasonable application of
Supreme Court precedent. Similarly, the state court’s
rejection of Roger’s challenge to the jury venire was not
96                  MURRAY V. SCHRIRO

contrary to or an unreasonable application of Supreme Court
precedent. Acceptance of the prosecutor’s race-neutral
explanations for the exercise of his peremptory challenges
was not contrary to or an unreasonable application of Batson.
Because the Supreme Court has eschewed claims predicated
on the unavailability of immaterial evidence, the state court’s
denial of Roger’s belated request to inspect a sanitized crime
scene was also not contrary to, or an unreasonable application
of, Supreme Court precedent.

   The evidence in the record did not support Roger’s
request for jury instructions on voluntary intoxication and
second degree murder. The state court’s denial of relief was
consistent with Supreme Court precedent.

    Any causal nexus error in the state court’s consideration,
at sentencing, of mitigation evidence relating to Roger’s
troubled childhood was harmless.

    The Arizona Supreme Court’s decisions denying relief on
the claims of ineffective assistance of counsel were not
contrary to or an unreasonable application of Strickland,
particularly in view of the double deference applicable to
AEDPA claims of ineffective assistance of counsel. The
district court correctly resolved the claims on the evidence
presented to the state courts. No cognizable Martinez claim
was asserted. We affirm the denial of habeas relief as to all
certified claims.

     AFFIRMED.
