Opinion
CV-18-00036-TUC-CKJ (MSA)
12-06-2023
Ronald Kelly Young, Petitioner, v. Ryan Thornell, et al., Respondents.
REPORT AND RECOMMENDATION
Honorable Maria Aguilera, United States Magistrate Judge.
Petitioner Ronald Young, an Arizona state prisoner, is serving two life sentences for first-degree murder and conspiracy to commit first-degree murder. Having failed to obtain relief in state court, he now petitions for federal habeas relief under 28 U.S.C. § 2254. The Court will recommend that his petition be denied.
Background
On Petitioner's direct appeal, the Arizona Court of Appeals recited the underlying facts as follows:
In November 1996, Gary T[riano] was killed by a bomb that had been placed on the passenger seat of his car. Although Pamela Phillips, Gary's former spouse, was considered one of several possible suspects in the killing, law enforcement officials identified no evidence conclusively linking her or anyone else to the crime, and the case remained unsolved for nearly ten years.
Phillips and Gary had dissolved their marriage in November 1993, but Phillips remained the owner and beneficiary of a policy insuring Gary's life for $2 million. Phillips moved from Tucson to Aspen, Colorado, in May 1994. In Aspen, Phillips became friends with her neighbor, Young; he acted as her business consultant and helped her develop a website for a company she planned to start. Young and Phillips also periodically had an intimate
relationship.
Young left Aspen suddenly in March or April of 1996. Sometime in April, apparently after Young had left, Aspen Police detective James Crowley attempted to interview Young as the suspect in a “fraud case.” Phillips's attorney had reported the fraud to the police, and Phillips initially had wanted to assist in pursuing the charges but a few weeks later had refused to cooperate. Unable to locate Young, Crowley obtained a search warrant for his house. The warrant specified Crowley could search for “computer equipment, computers, computer files, optical storage, business documents and things related to the fraud case.” After gathering additional evidence from several financial institutions, Aspen police obtained a warrant for Young's arrest in August 1996.
In October 1996, a few weeks before Gary was killed, law enforcement officers found a van Young had rented from the Aspen airport parked near Young's parents' house in California. Because the van had been reported stolen, local police impounded it and contacted the Aspen Police Department. Crowley searched the van and found numerous documents in Young's name. When Crowley later learned about Gary's murder, he remembered he had seen a map of Tucson and paperwork from Gary and Phillips's marital dissolution among the documents in the van. The van also contained a list of the names of some of Gary's friends and family members and a note with more identifying information about two of the people on the list, as well as evidence that in July 1996, under an assumed name, Young had stayed in a hotel in the same area of Tucson where Gary had lived. Crowley contacted the Pima County Sheriff's Department (PCSD) with the information he had obtained. PCSD, however, was unable to locate Young.
Young eventually was arrested in Florida in 2005 on the Colorado fraud warrant. Searches of his residence, hotel room, storage unit, and vehicle, as well as of a laptop computer seized during his arrest, revealed evidence that Young regularly had been receiving money from Phillips since Gary's death. Specifically, Young had maintained loan amortization schedules showing payments made on a debt of $400,000 owed to him. A forensic accountant examined that evidence, as well as Young's and Phillips's bank statements and Federal Express shipping records, and concluded the loan schedules were consistent with payments Phillips had been making to Young out of the proceeds of the life insurance policy. He also concluded the two had attempted to conceal the transactions.
Additionally, Young had recorded hours of telephone conversations with Phillips in which they exhaustively discussed the payments. During those conversations, they referred to their financial dealings both explicitly and implicitly as an illegal arrangement, and they expressed concern about detection. The two discussed news stories about Gary's death, and in one conversation when Phillips told Young she would not send him more money,
he threatened that she would go to prison for murder. Finally, the jury heard testimony from a fellow jail inmate of Young's that Young had confessed to being responsible for Gary's death.
Young and Phillips each were charged with first-degree murder and conspiracy to commit first-degree murder. Young was convicted of both charges and sentenced to two life terms of imprisonment.(Doc. 99-2 at 55-58 (footnote omitted).)
One of Petitioner's sentences was overturned on direct appeal, but the trial court imposed the same sentence at the resentencing hearing. (Doc. 97-2 at 132; Doc. 99-2 at 77.) Petitioner's attempt at state postconviction relief was unsuccessful, so he filed this federal habeas action. (Doc. 99 at 315.) The original petition was filed in January 2018. (Doc. 1.) The operative amended petition was filed in April 2023. (Doc. 93.)
Legal Standards
The amended petition is subject to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
I. Statute of Limitation
Under AEDPA, there is a one-year limitation period for federal habeas petitions brought by state prisoners. 28 U.S.C. § 2244(d)(1). In this case, the original petition was filed within the limitation period, but the operative amended petition was not. Accordingly, the amendments are untimely unless they “relate back” to the original petition. Fed.R.Civ.P. 15(c)(1)(B). In the habeas context, an amended claim relates back if it shares “a common core of operative facts” with an original claim. Mayle v. Felix, 545 U.S. 644, 664 (2005). In contrast, an amended claim does not relate back if it is “supported by facts that differ in both time and type from those the original pleading set forth.” Id. at 650.
II. Procedural Default
Under AEDPA, state prisoners normally must exhaust their state-court remedies before seeking federal habeas relief. 28 U.S.C. § 2254(b). This requirement is satisfied once the prisoner “fairly presents” his claims to the state court, i.e., he alerts the state court to both the relevant facts and the federal legal theories. Picard v. Connor, 404 U.S. 270, 275, 277 (1971). A claim is procedurally defaulted if it has not been exhausted and the state court would now find it procedurally barred. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). Federal review of procedurally defaulted claims is precluded “unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).
III. Review of State-Court Decisions
Under AEDPA, a federal court must defer to a state habeas court's decision on the merits unless the decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). “This is a ‘difficult to meet' and ‘highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.'” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (first quoting Harrington v. Richter, 562 U.S. 86, 102 (2011); and then quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). The district court must apply such deference to the last reasoned state-court decision. Dickey v. Davis, 69 F.4th 624, 635 (9th Cir. 2023) (quoting Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)).
Discussion
Petitioner raises eight claims for relief. He alleges due process violations based on preindictment delay (claim one) and the state's use of perjured “jailhouse snitch” testimony (claim two) and certain other-act evidence (claim three) at trial; that the evidence was insufficient to convict (claim four); that the jury foreperson was biased (claim five); that trial counsel were ineffective (claim six); that the state withheld exculpatory evidence (claim seven); and that he is actually innocent (claim eight). Respondents argue that Plaintiff's claims are non-cognizable, untimely, procedurally barred, meritless, or some combination of the four. The parties' claims and arguments are taken in turn. .... ....
I. Preindictment Delay (Claim One)
Petitioner was identified as a person of interest several days after the murder, and he was found in possession of incriminatory evidence when he was arrested on the fraud warrant in 2005. Still, the state did not indict him until October 2008. Petitioner claims that this preindictment delay violated his due process rights. The Court finds that Petitioner's claim (A) is untimely and (B) fails under § 2254(d).
A. Petitioner's claim is untimely.
Petitioner's amended claim is untimely unless it shares a “common core of operative facts” with one of his original claims. Mayle v. Felix, 545 U.S. 644, 664 (2005). The operative facts underlying Petitioner's amended claim are that the state delayed in seeking an indictment, and that the delay was unjustified and prejudiced his defense. See United States v. Lovasco, 431 U.S. 783, 790 (1977). Petitioner's original claims were based on different operative facts, so his amended claim does not relate back.
Petitioner raised six claims in his original petition. He alleged that he was denied due process when the state trial court (1) refused to grant a new trial based on new DNA and third-party culpability evidence, (2) refused to grant a new trial based on juror bias, and (3) admitted certain evidence at trial. He also alleged that (4) his trial counsel were ineffective for not discovering certain evidence, for failing to present an identifiable defense at trial, and for not hiring an expert to testify at trial. These claims involved actors other than the state, and they were based on acts or omissions that occurred after Petitioner was indicted. They do not concern preindictment delay or the effect of delay on Petitioner's defense, so they cannot serve as a basis for relation back. See Walden v. Shinn, 990 F.3d 1183, 1203 (9th Cir. 2021) (holding that the petitioner's amended claim did not relate back because the original claims involved different actors, alleged errors, and time periods).
Petitioner technically raised five “grounds” for relief. The Court discerns six distinct claims within those five grounds.
Petitioner also alleged that (5) the state failed to disclose exculpatory evidence concerning his financial dealings with Pamela Phillips. While this claim concerns alleged misconduct by the state, the state's failure to satisfy its disclosure obligations is a post indictment event that has nothing to do with preindictment delay. Finally, Petitioner alleged that (6) the police obtained evidence in violation of the Fourth Amendment, and that he was denied due process when that evidence was used against him at trial. The disputed searches and seizures occurred during the alleged delay, but the occurrence of delay is not a core operative fact supporting Petitioner's claim that the police violated the Fourth Amendment. These claims also cannot serve as a basis for relation back. See Schneider v. McDaniel, 674 F.3d 1144, 1151 (9th Cir. 2012) (holding that while the new and original claims shared one fact in common, that was “not sufficient to conclude that they ar[o]se out of a common core of operative facts”).
Petitioner argues that his claim relates back because the “background” section of his original Fourth Amendment claim included “a significant amount of factual” information that could support a claim of preindictment delay. Further, he emphasizes that the Arizona Court of Appeals “squarely addressed” a claim of preindictment delay on direct appeal, and that the state court's opinion is attached as an exhibit to his original federal petition. However, none of this changes the Court's conclusion. It is not enough that the amended claim relies on facts that just happened to be included in the original petition; only the operative facts matter. Felix, 545 U.S. at 659. The background facts that could have supported a claim of preindictment delay were not the operative facts of Petitioner's original claims, so they do not provide a basis for relation back. Similarly, “[i]f an exhibit to the original petition includes facts unrelated to the grounds for relief asserted in that petition, those facts were not ‘attempted to be set out' in that petition and cannot form a basis for relation back.” Ross v. Williams, 950 F.3d 1160, 1168 (9th Cir. 2020) (en banc). The state court's analysis of Petitioner's claim of preindictment delay is unrelated to the grounds for relief asserted in his original federal petition. Consequently, the state court's analysis provides no basis for relation back.
Petitioner's claim does not relate back and is therefore untimely. Petitioner argues that his claim may nevertheless be heard because he has proven a “gateway” claim of “actual innocence.” See Herrera v. Collins, 506 U.S. 390, 404 (1993) (stating that while “a claim of ‘actual innocence' is not itself a constitutional claim,” it can serve as “a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits”). This argument is addressed below, in Section VIII.
B. Petitioner's claim fails under § 2254(d).
For purposes of § 2254(d), the last reasoned state-court decision is the Arizona Court of Appeals' decision on Petitioner's direct appeal. There, the court explained that a claim of preindictment delay requires proof “that the prosecution intentionally delayed proceedings to gain a tactical advantage over the defendant or to harass him, and that the defendant has actually been prejudiced by the delay.” (Doc. 99-2 at 60.) The court's rejection of Petitioner's claim turned on the prejudice inquiry. Petitioner argued that the delay was presumptively prejudicial, but the court disagreed that the law allowed for such a presumption. (Id. at 61.) He argued further that he had been prejudiced from having to defend a civil wrongful death suit during the delay because the state had learned from his civil pleadings and discovery responses. (Id.) The court found that argument speculative because Petitioner had not “specified] what the state learned . . . or exactly how th[at] prejudiced him.” (Id.)
Petitioner's claim is not supported by clearly established federal law, so he cannot overcome § 2254(d)(1). Turner v. McEwen, 819 F.3d 1171, 1176 (9th Cir. 2016) (stating that § 2254(d)(1) cannot be overcome if there is no clearly established law). The Supreme Court has held that a claim of preindictment delay requires proof that the defendant was “actually prejudiced” by the delay, and further held that a court must balance such prejudice against “the reasons for the delay.” United States v. Marion, 404 U.S. 307, 324-25 (1971); Lovasco, 431 U.S. at 790. However, the Supreme Court has not yet explained what that balancing should look like. See Marion, 404 U.S. at 324 (refusing to decide “when and in what circumstances actual prejudice resulting from pre-accusation delays requires the dismissal of the prosecution”); Lovasco, 431 U.S. at 796-97 (same). As a result, there is no clear test for determining when the balance has tipped into a due process violation. For this reason, the United States Court of Appeals for the Ninth Circuit has recognized that the law on preindictment delay is not clearly established. See New v. Uribe, 532 Fed.Appx. 743, 744 (9th Cir. 2013) (deferring to the state court under § 2254(d)(1) because Marion and Lovasco do not “set out a clear test”); Reed v. Schriro, 290 Fed.Appx. 982, 985 (9th Cir. 2008) (same).
In addition, while the Supreme Court has observed that due process is implicated when the state uses delay as “an intentional device to gain tactical advantage over the accused,” Marion, 404 U.S. at 324, it has not yet decided whether due process is implicated when delay is caused by the state's negligence. This issue has divided the lower courts. Compare United States v. Moran, 759 F.2d 777, 782 (9th Cir. 1985) (holding that negligence can be enough), with State v. Monaco, 83 P.3d 553, 559 (Ariz.Ct.App. 2004) (stating that intent is required). Such disagreement further demonstrates that the law is not clearly established. See Ponce v. Felker, 606 F.3d 596, 605-06 (9th Cir. 2010) (concluding, based in part on a jurisdictional split, that the law was not clearly established). Indeed, although circuit precedent requires only negligence, the New court deferred to the state court's application of an intent requirement. 532 Fed.Appx. at 744.
Finally, even if the law were clearly established, the state court did not apply it unreasonably. The Supreme Court has held that the defendant must prove actual prejudice. Lovasco, 431 U.S. at 790. Petitioner argued that prejudice should be presumed based solely on the length of the delay. Such a presumption would have absolved him of his burden to prove actual prejudice, so it was reasonable for the state court not to apply it. The Supreme Court has also held that “speculative” claims of prejudice are insufficient. Marion, 404 U.S. at 324-26. Petitioner failed to specify what the state had learned from the civil wrongful death suit and explain how that had hurt his defense, so it was reasonable for the state court to reject Petitioner's claim as speculative.
Petitioner has not shown that the state court's decision was contrary to, or involved an unreasonable application of, clearly established federal law. He does not argue that the state court's decision was based on an unreasonable determination of the facts. Therefore, his claim fails under § 2254(d).
II. “Jailhouse Snitch” Testimony (Claim Two)
After his arrest on the fraud warrant in 2005, Petitioner spent time in a Florida jail with Andre Mims. In 2006, Mims wrote a statement asserting that Petitioner had “told [Mims] of his involvement in the car bombing and murder of Gary Triano.” According to that statement, Young had told Mims that “that mother fucker got what he desevred [sic], I got it done.” Mims took a polygraph test the same day he authored his written statement. After the test indicated that Mims had attempted deception, he admitted that he was unsure whether Petitioner had used the phrase “I got it done,” and further admitted that “he may have been trying too hard in his efforts to help investigators with the case.”
Petitioner moved to preclude Mims from testifying at trial on the ground that his testimony was unreliable and therefore irrelevant. The trial court ruled that Mims could testify, but that he could not attribute the phrase “I got it done” to Petitioner. Later, at trial, Mims testified that Petitioner “looked [Mims] in [the] face” and said “Andre, I blew that fucker up in his car.” Petitioner moved for a mistrial, arguing that Mims's testimony was materially indistinguishable from the “I got it done” phrase that had been excluded, and that Mims had therefore violated the trial court's order. The trial court denied the motion but allowed Petitioner to cross-examine Mims on the polygraph results. The trial court also allowed Petitioner to present evidence that Mims knew the polygraph results indicated that he had attempted deception.
Petitioner claims that Mims's testimony violated his due process rights under Napue v. Illinois, 360 U.S. 264 (1959). As discussed more fully below, Napue bars the state from knowingly using perjured testimony. Id. at 269. The Court finds that Petitioner's claim (A) is unexhausted and procedurally defaulted and (B) fails under de novo review.
A. Petitioner's claim is unexhausted and procedurally defaulted.
On direct appeal, Petitioner argued that Mims “clearly perjured” himself when he testified that Petitioner admitted to “bl[owing] that fucker up in his car.” (Doc. 99-2 at 292-93, 297.) Thus, Petitioner alleged that he was convicted based in part on perjured testimony.
Petitioner did not, however, allege that the prosecutor did anything wrong with respect to Mims's testimony. He also did not cite Napue, which would have made clear that his claim was based on prosecutorial misconduct. While Petitioner cited “due process” and the Fifth and Fourteenth Amendments, those references were not sufficient to alert the state court to the Napue theory; due process has many contexts, and none of the references could have been expected to alert the state court to a claim of prosecutorial misconduct. See Gray v. Netherland, 518 U.S. 152, 164-65 (1996) (explaining that the petitioner's case citations did not support his specific due process theory). Lacking notice of both the legal theory and the relevant facts, the state court did not have the opportunity to address Petitioner's Napue claim. Therefore, his claim is unexhausted. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (stating that “the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts”).
Petitioner cannot return to state court to exhaust his claim. He did not raise it on direct appeal or in his first postconviction proceeding; as such, he has waived it. Ariz. R. Crim. P. 32.2(a)(3). His claim would also be untimely. Ariz. R. Crim. P. 32.4(b)(3)(A). Therefore, for purposes of federal review, his claim has been procedurally defaulted. Petitioner argues that his claim should nevertheless be heard because he has proven a gateway claim of actual innocence. This argument is addressed below, in Section VIII.
B. Petitioner's claim fails under de novo review.
A Napue claim has three elements: “(1) the testimony (or evidence) was actually false, (2) the prosecution knew or should have known that the testimony was actually false, and (3) the false testimony was material.” Reis-Campos v. Biter, 832 F.3d 968, 976 (9th Cir. 2016) (quoting Jackson v. Brown, 513 F.3d 1057, 1071-72 (9th Cir. 2008)). False testimony is material if “there is any reasonable likelihood that [it] could have affected the judgment of the jury.” United States v. Agurs, 427 U.S. 97, 103 (1976). Petitioner's claim fails on all three elements.
First, Petitioner has not shown that Mims's testimony was false. The testimony was new and unexpected, but that does not necessarily mean it was perjured. See United States v. Croft, 124 F.3d 1109, 1119 (9th Cir. 1997) (“The fact that a witness may have made an earlier inconsistent statement . . . does not establish that the testimony offered at trial was false.”); Lambert v. Blackwell, 387 F.3d 210, 249 (3d Cir. 2004) (“There are many reasons testimony may be inconsistent; perjury is only one possible reason.”).
Second, Petitioner has not shown that the state knew or should have known that the testimony was false. At trial, the prosecutor stated that while he was surprised by Mims's testimony, he had no reason to believe that Mims had perjured himself. (Doc. 98-3 at 173133.) He explained that Mims and Young had a “trusted relationship” that involved many conversations; that he never understood Mims's written affidavit to be the “sum and substance” of what Mims would testify to at trial; and that he never had the impression that “any admissions made by Ronald Young were restricted to the one statement I got it done.” (Id. at 1729-33.) Petitioner does not explain why the prosecutor should be disbelieved. Notably, courts have found that inconsistencies between a witness's trial testimony and previous statements do not, standing alone, show that the prosecutor knowingly presented false testimony. E.g., Gibson v. Beard, 165 F.Supp.3d 286, 309 (E.D. Pa. Feb. 29, 2016). Indeed, the prosecutor here explained that this was not his first experience “where a witness c[ame] forward with information that was not in a previous statement, or provided in a previous interview.” (Doc. 98-3 at 1731, 1733.)
Third, Mims's testimony, even if false, “was not material because his credibility [was] substantially called into question” throughout trial. Gentry v. Sinclair, 705 F.3d 884, 903 (9th Cir. 2013). Mims was subjected to a blistering cross-examination, during which he contradicted himself several times. Under defense counsel's pointed questioning, Mims admitted that Petitioner was not “detail specific,” and he agreed that he had not previously attributed the words “I blew that mother fucker up” to Petitioner during pretrial interviews. (Doc. 98-3 at 1766-68.) Mims also conceded that he had over 20 years left on his sentence for armed robbery, that his remaining avenues for relief were “long shots,” and that he was hoping to trade his testimony for leniency. (Id. at 1761-65, 1773-74.) He also admitted that he had abused a previous girlfriend, that he had prior convictions for armed robbery and bribery of a public servant, and that he regularly violated prison rules by accepting payment for legal services. (Id. at 1763, 1768, 1770-71.) Mims's credibility was further undermined on the issue of his polygraph test. On cross-examination, Mims stated he was not aware that the test results indicated that he had attempted deception, and he denied recalling anyone telling him that he had attempted deception. (Id. at 1754-59.) The jury was read a stipulation, however, proving that federal agents notified Mims about his test results. (Doc. 98-4 at 1233-34.) Petitioner's counsel reminded the jury of all these points during closing arguments. (See id. at 1491-92 (“Andre Mims is a stone cold liar. I have never seen in my career such a blatant liar presented by any prosecutor. Andre Mims was a known liar before he got on the stand.”).)
For example, after Mims denied that he spoke with the prosecutor “roundabouts” once per week (and denied that once per week could even be described as “roundabouts”), defense counsel impeached him with his prior statement that he spoke to the prosecutor “roundabouts” once per week. (Doc. 98-3 at 1759-61.)
For the foregoing reasons, Petitioner's claim fails on de novo review.
III. Other-Act Evidence (Claim Three)
Several weeks before the bombing, California police found a van that had been reported stolen from a rental company in Aspen, Colorado. The van contained numerous documents connecting the vehicle to Petitioner. It also included a disassembled shotgun that had a modified, shortened barrel. At trial, the state argued that Petitioner shortened the barrel to make it more concealable and suggested that Petitioner intended for the shotgun to be a backup means of killing Triano if the bomb should fail.
Petitioner argues that the shotgun was wholly irrelevant to the issues at trial, and that the state's theory about the shotgun was speculative. He claims that admission of this irrelevant and prejudicial evidence violated his due process rights. The Court finds that Petitioner's claim (A) has been properly exhausted but (B) fails under § 2254(d).
A. Petitioner's claim has been properly exhausted.
On direct appeal, Petitioner cited the Fifth and Fourteenth Amendments and argued that “[c]riminal defendants['] constitutional rights to due process and a fair trial also protects [sic] them from introduction of improper character evidence.” (Doc. 99-2 at 278.) He argued that the evidence concerning his legally modified shotgun was irrelevant and prejudicial. (Id. at 279-81.) Finally, with citation to Chapman v. California, 386 U.S. 18 (1967), he argued that the trial court's error in admitting the evidence could not “be said to be harmless beyond a reasonable doubt.” (Id. at 281.) Chapman sets forth the harmless-error standard for constitutional errors at trial. 386 U.S. at 24. Accordingly, Petitioner presented the state court with both the relevant facts and the federal legal theory. His claim has been properly exhausted.
B. Petitioner's claim fails under § 2254(d).
For purposes of § 2254(d), the last reasoned state-court decision is the Arizona Court of Appeals' decision on Petitioner's direct appeal. There, the appellate court found that although the trial court's basis for admitting the shotgun evidence was unclear, admission of the evidence was harmless because the state had proven “beyond a reasonable doubt the shotgun evidence ‘did not contribute to or affect the verdict.'” (Doc. 99-2 at 71.) Although the state court's analysis does not mention due process, the Court finds that the state court nevertheless adjudicated Petitioner's claim on the merits. The Supreme Court has explained that “[w]hen a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits.” Johnson v. Williams, 568 U.S. 289, 301 (2013). Petitioner does not argue that the presumption either is inapplicable or has been rebutted. Regardless, in analyzing Petitioner's claim, the state court cited state precedent applying a harmless-beyond-a-reasonable-doubt standard, State v. Valverde, 208 P.3d 233, 236 (Ariz. 2009), which is the same as the federal harmless-error standard. Chapman, 386 U.S. at 24. This indicates that the state court decided the “intrinsic right and wrong of the matter.” Williams, 568 U.S. at 302-03.
Petitioner's claim is not supported by clearly established federal law, so he cannot overcome § 2254(d)(1). Turner, 819 F.3d at 1176. Petitioner refers to the shotgun evidence as “other act” evidence, indicating a belief that the trial court admitted the evidence under Arizona Rule of Evidence 404(b) as relevant to proving “motive, opportunity, intent,” etc. But “there is no clearly established law that addresses whether the admission of a defendant's . . . prior bad acts would violate due process.” Kipp v. Davis, 971 F.3d 939, 951 n.8 (9th Cir. 2020). And while Petitioner argues more generally that due process was violated because the evidence was irrelevant and highly prejudicial, there also is “no clearly established federal law providing that the ‘admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ.'” Walden, 990 F.3d at 1204 (quoting Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009)).
Petitioner has not shown that the state court's decision was contrary to, or involved an unreasonable application of, clearly established federal law. He does not argue that the state court's decision was based on an unreasonable determination of the facts. Therefore, his claim fails under § 2254(d).
IV. Sufficiency of the Evidence (Claim Four)
Petitioner claims that the evidence presented at trial was insufficient to convict. The Court finds that Petitioner's claim (A) is untimely and (B) fails under § 2254(d).
A. Petitioner's claim is untimely.
Petitioner's amended claim is untimely unless it shares a “common core of operative facts” with one of his original claims. Felix, 545 U.S. at 664. A sufficiency-of-the-evidence claim considers whether any rational factfinder could have found the defendant guilty based on the evidence presented at trial. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Therefore, the operative facts are the testimony and exhibits presented at Petitioner's trial. Petitioner's original claims were based on different operative facts, so his amended claim does not relate back.
As noted, Petitioner originally alleged that the trial court violated his due process rights when it (1) refused to grant a new trial based on newly discovered evidence, (2) refused to grant a new trial based on juror bias, and (3) admitted certain evidence at trial; that (4) his counsel were ineffective prior to and during trial; that (5) the state unlawfully withheld exculpatory evidence; and that (6) the police obtained evidence in violation of the Fourth Amendment. The first, second, fifth, and sixth claims are based on alleged errors or misconduct that occurred before or after trial. While the fourth claim is based in part on what occurred at trial, the claim's focus is on the conduct of Petitioner's counsel, not on the evidence presented. Finally, although the third claim concerns parts of the trial evidence, the core operative fact underlying that claim is that the evidence was inadmissible. As such, the third claim does not share the same core operative facts as Petitioner's sufficiency-of-the-evidence claim, which takes the evidence as it was presented at trial. Petitioner's original claims do not provide a basis for relation back.
Petitioner argues that his amended claim relates back because he presented it to the Arizona Court of Appeals on direct appeal, the state court issued a written opinion directly addressing it, and the state court's opinion is attached as an exhibit to his original federal petition. Again, however, facts contained within an exhibit to the original petition provide a basis for relation back only if they relate to the grounds for relief asserted in the petition. Ross, 950 F.3d at 1168. Here, the state court's sufficiency-of-the-evidence analysis was unrelated to Petitioner's original claims, so that analysis cannot support relation back. Petitioner also argues that his amended claim relates back because it is “closely related” to his original claim that a new trial should have been granted based on newly discovered evidence. The Court disagrees. The sufficiency-of-the-evidence inquiry “is limited to ‘record evidence'”; it “does not extend to nonrecord evidence, including newly discovered evidence.” Herrera, 506 U.S. at 402 (quoting Jackson, 443 U.S. at 318). Thus, Petitioner's insufficiency claim does not share a common core of operative facts with his original claim of newly discovered evidence.
Petitioner's claim does not relate back and is therefore untimely. Petitioner argues that his claim may nevertheless be heard because he has proven a gateway claim of actual innocence. This argument is addressed below, in Section VIII. .... ....
B. Petitioner's claim fails under § 2254(d).
Under Jackson, the evidence is sufficient if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 443 U.S. at 319. This standard “gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id. When the evidence “supports conflicting inferences,” a reviewing court “must presume-even if it does not affirmatively appear in the record- that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Id. at 326. Because § 2254(d) applies, review of Petitioner's Jackson claim is doubly deferential. Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam).
For purposes § 2254(d), the last reasoned state-court decision is the Arizona Court of Appeals' decision on Petitioner's direct appeal. There, the court rejected, as a matter of law, Petitioner's contention that “when a case is based entirely on circumstantial evidence, the government must disprove every reasonable theory of innocence consistent with the evidence.” (Doc. 99-2 at 58.) It then found that “there was sufficient evidence from which the jury could have found [he] first conspired with Phillips to kill Gary and then carried out the killing.” (Id. at 59.) The court highlighted, as examples, Mims's testimony that Petitioner had admitted to the murder; testimony and documents showing that, months before the murder, Petitioner stayed in Tucson under an assumed name; and recordings in which Petitioner made incriminatory statements about the murder to Phillips. (Id.)
Petitioner fails to show that the state court's decision was contrary to, or involved an unreasonable application of, clearly established federal law. To convict Petitioner of conspiracy to commit murder, the state had to prove that he “inten[ded] to promote the offense of murder and . . . agree[d] with another that one [would] do the actual killing.” State v. Willoughby, 892 P.2d 1319, 1334 (Ariz. 1995) (citing A.R.S. § 13-1003(A)). To convict him of first-degree murder, the state had to prove that he intended or knew that his conduct would cause death, and that he caused another's death with premeditation. State v. Ellison, 140 P.3d 899, 917 (Ariz. 2006) (quoting A.R.S. § 13-1105(A)(1)). Here, the state court reasonably found that the evidence was sufficient for a rational juror to convict Petitioner of these offenses.
First, a rational juror could have found that Petitioner and Phillips had an agreement. Petitioner kept payment schedules indicating that he was owed a $400,000 debt. (Doc. 98-4 at 568-75.) In January 1997, Phillips began sending cash payments to Petitioner through Federal Express. (Id. at 565-67, 591-92.) Both the timing of the mailings and the amount of cash in each mailing corresponded to deductions to the debt as recorded on the schedules. (Id. at 552-53.) Moreover, Petitioner and Phillips referred to a financial agreement between them during recorded phone calls. (Doc. 95-1 at 66-70; Doc. 98-4 at 1509.)
Next, a rational juror could have found that the agreement was for Petitioner to kill Triano. Phillips had an insurance policy on Triano's life that paid out $2 million upon his death. (Doc. 98-3 at 1933-35.) In a written communication, Petitioner connected Phillips's payments to a “policy.” (Doc. 96-5 at 24.) During recorded phone calls, he referred to Phillips's “1.6” and to his “4,” and, after expressing frustration about the frequency of the payments, he threatened that Phillips would “sit in a women's prison for murder.” (Doc. 95-1 at 65-71; Doc. 98-4 at 239, 1525.) Further, Petitioner's schedules indicate that the $400,000 debt accrued all at once in June 1996, several months before Triano was murdered, and Phillips did not begin making regular payments until January 1997, which is when she received the insurance proceeds. (Doc. 98-3 at 1962-63; Doc. 98-4 at 570-71; Doc. 99-2 at 231-32.) Notably, Petitioner told Phillips that he had “tried to help [her] on something that was . . . beyond what anybody else in the world would probably do,” and that she was “living off the benefits of it.” (Doc. 99-2 at 59.) This all supports the inference that Petitioner agreed to kill Triano in exchange for $400,000 of the insurance proceeds.
In addition, the payments were made in a secretive manner, which suggests that they were for an illicit purpose: Petitioner used coded language to request payments (e.g., he would request “14 of [his] things” and receive a payment of $1,400); Phillips took small amounts of cash from different sources and accumulated them into single payments that she sent through Federal Express; the mailings were addressed to “Richard Perez,” a dead man whose name Petitioner had assumed; and rather than simply depositing the cash into his account, Petitioner converted much of it into money orders before making a deposit. (Doc. 98-4 at 154-55, 548-54, 562-63, 585-86.) Further, in a recorded phone call, Petitioner emphasized that the payments needed to remain “untraceable” “[u]ntil the coast was very, very clear.” (Doc. 99-2 at 148.)
Finally, a rational juror could have found that Petitioner carried out the killing, and that he did so with premeditation. The use of a bomb leaves no doubt that the killing was premeditated, and there was persuasive circumstantial evidence indicating that Petitioner was the killer. To begin, Petitioner made various statements indicating that he had done something extreme for Phillips. Again, he claimed that what he had done was “beyond what anybody else in the world would probably do.” (Doc. 99-2 at 59.) In his personal notes, he wrote that Phillips was “too busy trying to screw the one party on earth that has brought most of what [she] ha[d].” (Doc. 95-1 at 81.) In an email to Phillips, he wrote that the money was “[his] when it was earned.” (Doc. 98-4 at 621-22, 1525.)
Further, the evidence showed that, in July 1996, Petitioner traveled to Tucson under an assumed name and stayed in a hotel near Triano's home for 18 days. (Doc. 98-3 at 179798, 1862; Doc. 98-4 at 662-64, 709-10, 785-86.) It also indicated that, while in Tucson, Petitioner gathered information on Triano and his family and friends. (Doc. 99-2 at 56-57.) There was also evidence that Petitioner did not use his computer between October 26 and November 5, 1996 (the murder occurred on November 1). (Doc. 98-4 at 405-06.) Finally, Mims testified that Petitioner admitted to the crime. (Doc. 98-3 at 1724.) Mims had serious credibility issues, but a rational juror could have given his testimony some weight.
The evidence against Petitioner was almost entirely circumstantial, but it was extensive. Viewing it in the light most favorable to the prosecution, it was not objectively unreasonable for the state court to hold that a rational juror could have found Petitioner guilty of first-degree murder and conspiracy to commit first-degree murder.
Petitioner has not developed any argument that the state court's decision was unreasonable under § 2254(d)(1). Instead, he essentially argues that his claim succeeds on de novo review. In doing so, he invites the Court to view the evidence in the light most favorable to him. For instance, he argues that “the fact that he lived under assumed names for nine years and possessed documents with titles such as ‘How to Get Lost and Stay That Way' was, at most, evidence of hiding from the law-unremarkable because Petitioner had been avoiding arrest on the Aspen warrant.” He also argues that the payment schedules and phone calls are consistent with a mere business relationship. That is one view of the evidence. But Jackson requires that the evidence be “view[ed] . . . in the light most favorable to the prosecution.” 443 U.S. at 319. Petitioner's failure to engage with the Jackson and § 2254(d)(1) standards is fatal to his claim.
Petitioner has not shown that the state court's decision was contrary to, or involved an unreasonable application of, clearly established federal law. And because Jackson claims are analyzed exclusively under § 2254(d)(1), Sarausad v. Porter, 479 F.3d 671, 678 (9th Cir. 2007), rev'd on other grounds sub nom. Waddington v. Sarausad, 555 U.S. 179 (2009), he cannot show that the state court's decision was based on an unreasonable determination of the facts. Therefore, his claim fails under § 2254(d).
V. Juror Bias (Claim Five)
During jury selection, a potential juror represented that he had never been married and had never been convicted of a crime. He was eventually named the jury foreperson. After the verdict, Petitioner's counsel learned that the foreperson had a prior misdemeanor conviction for interfering with judicial proceedings involving his ex-wife, and that he had been ordered to attend domestic violence counseling as a result. Petitioner points out that the jury heard evidence that Triano abused Phillips during and after their marriage.
Petitioner claims that the foreperson's “misconduct” reflects bias, and that he was therefore denied his Sixth Amendment right to an impartial jury. The Court finds that Petitioner's claim (A) has been properly exhausted but (B) fails under § 2254(d).
A. Petitioner's claim has been properly exhausted.
On direct appeal, Petitioner cited the Sixth Amendment and argued that “[c]riminal defendants have a right to a fair trial by an unbiased jury” and “the right to be aware of prospective jurors' biases or previous life experiences that would affect their ability to judge the evidence in the case fairly and impartially.” (Doc. 99-2 at 284.) He argued that the foreperson had lied during voir dire and that the facts the foreperson concealed indicated bias on his part. (Id. at 286-89, 291-92.) Finally, he argued that the error was “structural,” meaning that it was not subject to harmless-error review. (Id. at 289-91.) The presence of a biased juror is a structural error. Dyer v. Calderon, 151 F.3d 970, 973 n.2 (9th Cir. 1998). Accordingly, Petitioner presented both the relevant facts and the federal legal theory. His claim has been properly exhausted.
B. Petitioner's claim fails under § 2254(d).
For purposes of § 2254(d), the last reasoned state-court decision is the Arizona Court of Appeals' opinion on Petitioner's direct appeal. The state court explained that, to obtain a new trial based on a juror's perjury during voir dire, the defendant had to show either that he was actually prejudiced or that prejudice could be presumed from the facts. (Doc. 99-2 at 71-72.) The court of appeals adopted the trial court's findings that the foreperson's answers had not risen to the level of perjury and, moreover, that Petitioner had not established prejudice. (Id. at 72-73; Doc. 97 at 80-82.)
Petitioner's claim is not supported by clearly established federal law, so he cannot overcome § 2254(d)(1). Turner, 819 F.3d at 1176. Although he titles his claim “Juror Misconduct,” the claim is actually one of implied juror bias. This is clear from Petitioner's attempt to analogize his case to Dyer, which is an implied bias case. See Dyer, 151 F.3d at 981 (refusing to decide whether a juror was actually biased because the circumstances supported a finding of implied bias). “There is no clearly established federal law regarding the issue of implied bias.” Hedlund v. Ryan, 854 F.3d 557, 575 (9th Cir. 2017). Petitioner also cites McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984). That case involves a similar but distinct type of bias, “which turns on the truthfulness of a juror's responses on voir dire.” Fields v. Brown, 503 F.3d 755, 766 (9th Cir. 2007) (en banc). McDonough-style bias, however, is not clearly established either: that case did not clarify whether it created “a simple binary test” asking whether the juror concealed a basis for a for-cause challenge, or whether it created “a test that accommodates a prejudice analysis.” Scott v. Arnold, 962 F.3d 1128, 1131 (9th Cir. 2020).
The concept of actual bias is clearly established, but Petitioner has not developed any argument that the foreperson was actually biased against him.
Petitioner has not shown that the state court's decision was contrary to, or involved an unreasonable application of, clearly established federal law. He does not argue that the state court's decision was based on an unreasonable determination of the facts. Therefore, his claim fails under § 2254(d).
VI. Ineffective Assistance of Counsel (Claim Six)
Petitioner claims that trial counsel were ineffective for (1) failing to investigate and present evidence that he was in California around the time of the bombing, (2) failing to interview witnesses who were at the scene of the bombing, (3) failing to seek DNA testing of the bomb fragments and a fingerprint comparison of prints found on Triano's car, and (4) failing to withdraw because of a conflict of interest. The Court finds that Petitioner's claim (A) is timely but (B) fails under de novo review.
A. Petitioner's claim is timely.
Petitioner's amended claim relates back to his third original claim. In his original claim, he alleged that trial counsel were deficient for not seeking DNA testing of the bomb fragments and for not interviewing the on-scene witnesses. (Doc. 1 at 55-56.) He alleged more generally that counsel were ineffective for “non-use of [their] investigator,” and he emphasized that he had raised the same ineffectiveness claims “[t]hroughout state court appeal proceedings.” (Id. at 55, 57.) The Court finds that this was an attempt to set out the facts supporting the ineffectiveness claims that Petitioner raised in state court. Accordingly, it is appropriate to consider the facts contained within the state courts' decisions, which were attached as exhibits to the original petition. See Fed.R.Civ.P. 15(c)(1)(B) (providing that an amendment relates back if arises from facts that were “attempted to be set out” in the original pleading). The state courts addressed all parts of Petitioner's amended claim. (Doc. 99 at 308-12; Doc. 99-2 at 393-94.) Therefore, Petitioner's claim relates back and is timely.
B. Petitioner's claim fails under de novo review.
While the state courts issued a merits decision that is subject to AEDPA deference, it is apparent that Petitioner's claim fails under de novo review. The Court addresses his claim under that more favorable standard.
Petitioner's ineffectiveness claim is governed by Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, Petitioner must show both deficient performance and prejudice. Id. at 687. To establish deficient performance, he “must show that counsel's representation fell below an objective standard of reasonableness.” Id. at 688. To establish prejudice, he “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
Alibi investigation: Petitioner argues that counsel should have interviewed his friend, George Rombach, and parents, Michael and Jeri Garan, because they would have confirmed his presence in California at the time of the bombing. He also argues that counsel should have presented evidence that he sent faxes from California “in the days preceding and following the bombing.”
Petitioner's counsel were not deficient with respect to Rombach. They interviewed Rombach before trial, and he told them that while there was a “high probability” he had had lunch with Petitioner in late 1996, he had no “special recollection” of it and “couldn't give . . . a time frame.” (Doc. 99 at 170-71.) He did not establish an alibi for Petitioner, so counsel could have reasonably refrained from presenting his testimony at trial.
As for the Garans and fax evidence, counsel could have had good reason for not pursuing those investigations (e.g., they could have suspected that such evidence would have been consistent with Petitioner's guilt). Regardless, even if counsel were deficient, the resulting prejudice was negligible. Petitioner presents no evidence that Jeri Garan had information useful to his alibi defense, and Michael Garan and the fax evidence were not helpful to such defense. Michael had the mere “impression” that Petitioner was in northern California in late 1996, and the only fax identified by Petitioner is dated nearly two weeks before the murder. (Doc. 27 at 73, 93-96.) This evidence does not establish an alibi for Petitioner, so Petitioner suffered little, if any, prejudice from counsel's failure to present it at trial. See Cunningham v. Wong, 704 F.3d 1143, 1158-59 (9th Cir. 2013) (finding that counsel was not ineffective for failing to raise an alibi defense where the “proffered alibi evidence [was] extremely weak” and “consistent with [the petitioner's] guilt”).
Witness investigation: Petitioner argues that counsel should have interviewed Keisho Kudo, Frank Hotz, Eric Humphreys, Robin Balliro, and Richard Kaiser, all of whom were present or nearby when the explosion occurred. Petitioner argues that these witnesses place Tim Alger, Ernie Avaloz, and Jeffrey Morris at the crime scene. Alger, Avaloz, and Morris were alleged associates of Neil McNeice. As discussed more fully in Sections VII and VIII, Triano had defrauded McNeice out of $80,000, and McNeice had vowed revenge.
Petitioner has not shown that counsel were deficient. Each witness was interviewed by the police within weeks of the bombing, and none of them had anything particularly useful to say. Before the explosion, Kudo saw an employee and several golfers in the parking lot. (Doc. 99 at 194-97, 212-20.) Hotz also saw golfers. (Doc. 28 at 92-94.) After the explosion, Hotz saw a man leaving the scene in a “green Jeep” or “some other utility vehicle of a similar make.” (Id. at 90.) Hotz described the man as a “white” “clean cut looking guy” who was “maybe thirty or less” or “maybe a little more than that,” and who “[p]erhaps” had a “slightly balding head” although he was “not sure about that.” (Id.) Humphreys, Balliro, and Kaiser saw a man leave the scene in a beat-up blue car. (Id. at 128.) Humphreys described the driver as a “white male” with “black hair”; Balliro described the driver as having “dark hair”; and Kaiser described the driver as “a 35 to 40 year old [H]ispanic male.” (Id.)
Although the incident was recent, these witnesses offered only vague descriptions of the people they saw (descriptions that probably fit countless people). Memories lapse, so it is not a stretch to think that they would have been even less helpful over a decade later, when Petitioner was charged. As such, counsel could have reasonably refrained from interviewing them at that time.
One final point: the Supreme Court has made clear that counsel's performance must not be evaluated with the benefit of hindsight. Strickland, 466 U.S. at 689. Petitioner's claim makes sense only with the benefit of hindsight. He argues that the killing was orchestrated by McNeice, and that the witnesses' descriptions match those of McNeice's associates. But Petitioner learned that McNeice was investigated as a suspect only after he was convicted in 2010, and he alleges that the state withheld that information in violation of Brady v. Maryland, 373 U.S. 83 (1963). Petitioner's counsel had no indication that McNeice was an alternative suspect and thus no reason to ask witnesses if they had seen his associates at the crime scene.
DNA and fingerprint evidence: Petitioner argues that counsel were ineffective for not testing DNA found on the bomb fragments and for not having his fingerprints compared to prints found on Triano's car. Phillips's defense team had this evidence analyzed in 2013, and neither the DNA nor the fingerprints are a match to Petitioner.
Petitioner has not shown that counsel were deficient. He recalls “counsel telling him that they did not need to conduct any investigation, as the State had no evidence tying [him] to the bombing.” Given that the prosecution had no direct evidence placing Petitioner in Arizona, let alone at the crime scene, that was a reasonable strategy. Given that strategy, it plainly was reasonable for counsel not to investigate DNA and fingerprint evidence. See Strickland, 466 U.S. at 691 (“[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” (emphasis added)). This claim also relies heavily on the benefit of hindsight: Petitioner knows now that the forensic evidence is not a match to him, but his counsel did not know that. For all they knew, the forensic evidence could have placed him at the scene.
Conflict of interest: Petitioner argues that his counsel, who worked for the public defender's office, were ineffective for not withdrawing because of a conflict of interest. He asserts that a different public defender represented Gary Fears, a “significant suspect” in the case, and made statements about Fears to the media. In the conflict-of-interest context, “[p]rejudice is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting interests' and that ‘an actual conflict of interest adversely affected his lawyer's performance.'” Strickland, 466 U.S. at 692 (quoting Cuyler v. Sullivan, 446 U.S. 335, 350 (1980)). Petitioner does not explain how the alleged conflict of interest affected counsel's performance. Thus, he has failed to demonstrate prejudice.
* * *
For the foregoing reasons, Petitioner's claim is meritless under de novo review.
VII. Brady Violation (Claim Seven)
Petitioner claims that the state violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose (1) third-party culpability evidence concerning Neil McNeice and (2) bank records showing that Petitioner and Phillips had a legitimate business relationship before 1997. The Court finds that Petitioner's claim fails under de novo review.
While the state courts issued a merits decision that is subject to AEDPA deference, it is apparent that Petitioner's claim fails under de novo review. The Court addresses his claim under that more favorable standard.
A Brady claim has three elements: “The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Prejudice occurs when the evidence in question is “material,” meaning there is “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability' is a probability sufficient to undermine confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 682 (1985).
Starting with the bank records, Petitioner has not shown that the state suppressed exculpatory evidence. As the state court observed, Petitioner plainly had access to his own bank records. In addition, the state's pretrial filings made clear that it planned to argue that Phillips's payments to Petitioner were in exchange for the killing, so Petitioner had incentive to obtain his records if he thought they undermined that argument. See United States v. Bond, 552 F.3d 1092, 1096 (9th Cir. 2009) (explaining that there is no state suppression when the defendant has enough information to seek and obtain the Brady material himself).
Next, Phillips's bank records are not exculpatory. The jury heard testimony from multiple witnesses that Petitioner consulted with Phillips on her business, “Star Babies.” (Doc. 98-3 at 2069-72, 2097-98, 2151; Doc. 98-4 at 207.) Phillips's bank records would have been cumulative evidence of that relationship, and they would not have undermined evidence of the post-1996 relationship, which was categorically different. As previously explained, the jury heard extensive evidence that Phillips's payments were part of an illicit agreement, not a legitimate one: the payments were made in cash, rather than by check or bank transfer (Doc. 98-4 at 551-52); each payment was comprised of multiple withdrawals of small amounts of cash (id. at 552-53); the payments were addressed to “Richard Perez,” rather than to Petitioner (id. at 585-86); and Petitioner connected the payments to a “policy” and to Phillips sitting in a “women's prison for murder” (Doc. 96-5 at 24; Doc. 95-1 at 71; Doc. 98-4 at 1509-11). In view of this evidence, the pre-1997 bank records were not exculpatory. (And even if they were, they were not material because they would have tipped the scales in Petitioner's favor only a negligible amount.)
As for the third-party culpability evidence regarding Neil McNeice, many of the details offered by Petitioner come from interviews conducted by Phillips's defense team after his trial was over; he does not cite or otherwise identify documents or witnesses concerning McNeice that the state had and withheld before trial. He has the burden on his claim, and this omission means he has not met it.
The Court has nevertheless reviewed the record (which is extensive) for indications of what might have been withheld. Petitioner's state-court briefing refers to “disclosure from the Federal Bureau of Investigation” and “reports by FBI Agent Pogue, who was investigating Neil McNeice.” (Doc. 99 at 262.) There are two FBI reports in the record, both dated in January 1997. The reports indicate that Jeffrey Morris (then an inmate in a Washington state jail) told investigators that he had met John Sigmon in Tucson in late 1996; that Sigmon, a leader of a white supremacist gang, had claimed responsibility for the bombing; and that Sigmon had an associate named “Ernie,” who was believed to carry a firearm. (Doc. 28 at 75-76, 78-82.) Morris made no mention of Neil McNeice, nor is it clear from the reports that Morris was referring to McNeice's associate, Ernie Avaloz.
In 2012, Dr. Lawrence D'Antonio, a friend of McNeice, did an interview with Phillips's defense team, during which he recounted his discussions with Agent Pogue after Triano's death. (Doc. 29 at 98, 112.) Dr. D'Antonio told Agent Pogue that McNeice had a penchant for violence and had solicited the murder of several people, and that McNeice was vocal about wanting Triano dead because Triano had defrauded McNeice out of $80,000. (Id. at 63-66, 70, 98.) While this evidence establishes that McNeice had motive to kill Triano, it does not link McNeice or his associates to the bomb or the crime scene. Furthermore, the jury heard testimony about others who had the same motive. There was evidence that Triano had at least $4 million in debt and up to $20 million in unliquidated liabilities (Doc. 98-4 at 40, 911); that Triano owed money to “six or seven Las Vegas casinos” (Doc. 98-3 at 1422); that Triano had a deal with Gary Fears involving “Chinese gambling interests” (a deal which Triano's friend would have been “afraid” to do himself), and that Fears initially was the “primary suspect” in the murder (Doc. 98-3 at 933, 1421; Doc. 98-4 at 911); that Triano had lost money on an investment for Mexican investors (Doc. 96 at 79-80); and that others, including Mike Mariner, Michael Gardner, and Kevin Oberg, were suspects as well (Doc. 98-3 at 1383-84, 1388, 1419). In view of these alternative suspects, the evidence concerning McNeice was not material.
For the foregoing reasons, Petitioner's claim is meritless under de novo review.
VIII. Actual Innocence (Claim Eight)
Petitioner raises a “gateway” claim of actual innocence, which he says excuses any procedural defects from which his other claims might suffer. The Court finds that he has not presented evidence sufficient to pass through the actual-innocence gateway.
To make out a gateway claim, the petitioner must present new evidence of his innocence and “show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Schlup v. Delo, 513 U.S. 298, 327 (1995). This standard “is demanding, and cases satisfying it have ‘typically involved dramatic new evidence of innocence.'” Gable v. Williams, 49 F.4th 1315, 1322 (9th Cir. 2022) (quoting Larsen v. Soto, 742 F.3d 1083, 1095-96 (9th Cir. 2013)). In determining whether the standard has been met, the court must consider “all the evidence, including that alleged to have been illegally admitted (but with due regard to any unreliability of it) and evidence tenably claimed to have been wrongly excluded or to have become available only after the trial.” Schlup, 513 U.S. at 328 (citation omitted).
Petitioner first attacks the reliability of Mims's testimony and the relevance of the shotgun evidence. The Court agrees that the testimony and shotgun have little persuasive value. Mims admitted that Petitioner was not “detail specific” with him, and that while his written statement attributed the phrase “I got it done” to Petitioner, he was not sure whether Petitioner had made that statement. (Doc. 93-1 at 16-18.) It makes little sense that, years later, Mims would suddenly recall Petitioner making a more specific and dramatic confession-“I blew that fucker up in his car.” (Doc. 98-3 at 1724.) Next, the shotgun was legally modified and found far away from the crime scene. The state's theory that the shotgun was a backup means of killing Triano was speculative at best.
Petitioner next turns to his new evidence. This includes the DNA and fingerprint evidence, which are not a match to Petitioner. Petitioner argues that this evidence “conclusively excludes” him as the bombmaker. As a matter of logic, he is incorrect. Still, this evidence does offer him some support.
The new evidence also includes third-party culpability evidence concerning Neil McNeice and his associates, Jerry Capuano, Tim Alger, Ernie Avaloz, and Jeffrey Morris. Based largely on interviews conducted by Phillips's defense team after his trial was over, Petitioner paints the following picture of McNeice's involvement: McNeice was vocal about wanting Triano dead because Triano had defrauded him out of $80,000. McNeice had boasted about having people killed in the past, so he was capable of having Triano killed. McNeice's friend, Capuano, was capable of building a bomb and owned a workshop that contained “virtually every item that would have been required to build the Triano bomb.” In addition, Capuano told his brother and friend that he had done bad things for McNeice, including a thing that could have put him in prison for life. Morris confessed that he was hired as backup for the people who were going to kill Triano. A witness saw Morris with Avaloz in the days leading up to the bombing, and another witness saw Morris and Alger in the parking lot just before the explosion. Other witnesses saw vehicles matching Alger's and Avaloz's vehicles leave the scene immediately after the explosion.
Although this seems like a compelling case, it crumbles upon closer examination. Morris plays a key role in Petitioner's theory, yet he is not a credible witness. See Schlup, 513 U.S. at 330 (stating that “credibility assessments” may be necessary when evaluating a gateway claim of innocence). Morris has provided three separate stories about his knowledge of the murder. First, in 1997, he told FBI agents that he had met John Sigmon in Tucson, and that Sigmon had admitted to organizing the bombing from prison as part of a “murder for hire or extortion scheme.” (Doc. 28 at 75.) Second, in 2012, Morris told Phillips's defense investigator that he had been “brought in” to Tucson to serve as backup for the men who were going to kill Triano (this is the version that Petitioner relies on). (Id. at 136-38.) Third, literally seconds later, Morris signed a statement under penalty of perjury asserting that he was summoned from Washington to Utah to meet with a man he had known for 20 years, and that that man (who Morris refused to name) had claimed responsibility for the bombing. (Id. at 132-33, 138.) Thus, Morris's statements all conflict, and his only sworn statement does not implicate McNeice at all. Further, in the statement that Petitioner relies on, Morris did not mention McNeice, Alger, or Avaloz, nor did he say that he was at the scene of the bombing. Given these discrepancies and omissions, there is considerable reason to doubt anything Morris has to say on this matter.
Petitioner's theory has additional flaws. He asserts that Keisho Kudo “positively identified” Alger and Morris at the crime scene. He also asserts that Kudo saw a green SUV matching the description of a vehicle owned by McNeice and driven by Alger. These are exaggerations. In 2012, Kudo picked Alger's and Morris's photographs out of a short lineup, but he refused to make any concrete identifications, and he was candid that his memory had faded during the 16 years since the bombing. (Doc. 28 at 69.) He explained that the first man he saw “somewhat look[ed]” like the photograph of Alger, but that he “d[idn't] know for sure” that it was the same person. (Id. at 26-28.) He explained that the second man he saw “[k]ind of” looked like the photograph of Morris. (Id. at 29.) And while he had a “green Cherokee . . . stuck in [his] mind,” he was candid that he “d[idn't] know when [he] saw it” or “know exactly where [he] saw [it].” (Id. at 49-50.)
Petitioner asserts that Frank Hotz saw a man matching Alger's appearance drive away from the scene. But Hotz's description was far from certain and could have matched any number of people. He said the man was “maybe thirty or less” or “maybe a little more than that,” and that the man “[p]erhaps [had a] slightly balding head,” although he was “not sure about that” either. (Id. at 90.) Petitioner asserts that Humphreys, Balliro, and Kaiser saw a man “matching the general description” of Avaloz drive away from the scene in a “blue-tone older model Monte Carlo.” But Humphreys described a “white male” with “black hair”; Balliro described a man with “dark hair”; and Kaiser described a “35 to 40 year old [H]ispanic male.” (Id. at 128.) Again, these descriptions could have matched any number of people. Petitioner also asserts that Avaloz had previously been seen driving a vehicle fitting the description of a “blue-tone older model Monte Carlo,” but the evidence he cites does not support that proposition. The witness in question, Dr. D'Antonio, recalled Avaloz driving two Mercedes vehicles, one of which was blue and the other dark green. (Doc. 29 at 150-51; Doc. 30 at 38.)
Petitioner also asserts that Capuano's workshop was searched and found to contain “virtually every item that would have been required to build the Triano bomb,” including wood from an Oregon mill that had closed in 1991. However, the transcript he cites does not support that broad proposition. (See Doc. 30 at 88-98; Doc. 31 at 16-17.)
So, Petitioner is left with the following facts: McNeice, like others, had a motive to kill Triano; Capuano had the skills to build a bomb and had done bad things for McNeice; and the DNA and fingerprints were not a match to Petitioner. As discussed in Section IV, the jury heard convincing evidence of Petitioner's guilt. Petitioner's new facts do not “convincingly undermine” that evidence. Larsen, 742 F.3d at 1096; cf. Gable, 49 F.4th at 1328 (holding that the petitioner's gateway claim succeeded because “nearly all the State's key witnesses” recanted and another person gave multiple “detailed and compelling confessions”). Notably, Petitioner's theory does not implicate Phillips at all, so it is unclear why Phillips would have allowed herself to be extorted by Petitioner over many years, or why Petitioner would have threatened to turn her in for murder if she did not pay.
Petitioner has not shown that it is more likely than not that no reasonable juror would have convicted him if his new evidence had been presented at trial. Therefore, his gateway claim fails, and the procedural defects discussed above should not be excused.
Conclusion
The Court recommends that Petitioner Ronald Young's amended petition for a writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 93) be denied and dismissed with prejudice.
This recommendation is not immediately appealable to the United States Court of Appeals for the Ninth Circuit. The parties have 14 days to file specific written objections with the district court. Fed.R.Civ.P. 72(b)(2). The parties have 14 days to file responses to objections. Id. The parties may not file replies to objections absent the district court's permission. The failure to file timely objections may result in the waiver of de novo review. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). The Clerk of Court is directed to terminate the referral of this matter. Filed objections should bear the following case number: CV-18-00036-TUC-CKJ.