MEMORANDUM OF DECISION AND ORDER
Bеfore the Court is Petitioner Michael S. Gallegos’s amended petition for writ of habeas corpus. (Dkt.74.) 1 Petitioner al *1048 leges, pursuant to 28 U.S.C. § 2254, that he was convicted and sentenced to death in violation of the United States Constitution. (Id.)
The amended petition raised 33 claims for relief. (Id.) Respondents filed an answer to the petition and Petitioner filed a traverse. (Dkts.68, 86.) In an order denying Petitioner’s requests for evidentiary development, the Court dismissed Claim 30 based on a procedural bar, Claim 31 on the merits, Claim 32 for failure to state a cognizable ground for habeas relief, and Claim 33 as premature. 2 (Dkt.106.) This Order addresses the procedural status and/or the merits of the remaining claims and concludes, for the reasons set forth below, that Petitioner is not entitled to habeas relief.
BACKGROUND
In 1991, Petitioner was tried and convicted for the first degree murder of, and sexual conduct with, eight-year-old Kendall Wishon. 3
The victim lived with her mother, Cynthia Wishon, and Petitioner’s brother Jerry Gallegos (Gallegos) in Phoenix. In November 1989, the victim’s half-brother, George Smallwood, moved to Flagstaff to live with Petitioner and Petitioner’s family. Petitioner’s parents became Smallwood’s legal guardians. Petitioner and Small-wood were friends and attended high school together.
Smallwood visited his mother, Mrs. Wi-shon, and his half-sister, the victim, in Phoenix during holidays, and Petitioner sometimes accompanied him. Petitioner and Smallwood were on spring break in March 1990 and spent the week in the victim’s home in Phoenix. They worked on their respective vehicles most of that week. In the afternoons, they were responsible for supervising the victim when she came home from school because both Mrs. Wishon and Gallegos worked during the day.
Gallegos worked at a truck and trailer repair shop in Phoenix. On Thursday, March 15, 1990, at about 4:30 p.m., Petitioner and Smallwood went to Gallegos’s repair shop to work on their vehicles. After the other employees left for the day, Gallegos supervised both Petitioner’s and Smallwood’s repair work. They drank some beer and worked on their vehicles until about 9:30 p.m. On their way home, Gallegos purchased a case of beer. They arrived home about 10:00 p.m. and continued working on the vehicles until about 10:30. During this time, Gallegos shared a couple of beers from his case with them. When Petitioner and Smallwood came into the house at about 10:30 p.m., the victim was bathing; she went to bed shortly thereafter. Mrs. Wishon stopped by the victim’s room to kiss her goodnight on her way to bed. Gallegos took a shower and then played a video game with Petitioner and Smallwood before he retired at about 11:30 p.m. On his way to bed, Gallegos checked the case of beer and found that the case was all “basically there.”
As to the events that transpired later that night, Petitioner confessed оn two occasions and testified at trial as follows. After Gallegos retired, Petitioner and Smallwood continued playing video games and drank more beer. Petitioner suggested that they go into the victim’s room to fondle her; Smallwood agreed. Once they were inside the victim’s room, Petitioner *1049 lifted her nightgown and rubbed baby oil on the small of her back. According to Petitioner, when the girl began to awaken, Smallwood put his hand over her mouth and Petitioner put his hand over Small-wood’s hand and over the victim’s nose. She gasped for air, struggled, and made sounds “like a little pig” before eventually going limp. Believing that the victim was dead, Petitioner and Smallwood decided to “finish her off.” They pulled her body off the bed and placed her on the floor. According to Petitioner, Smallwood attempted to insert his penis into the victim’s vagina. Petitioner then had anal intercourse with her for 15 to 20 minutes. During this time, Petitioner testified, Smallwood stuck his penis inside the victim’s mouth. After Petitioner completed the sex act, the two carried the victim’s naked body out of the house and down the street where they dropped it under a tree. They returned to the house and went to bed.
Early the next morning, Mrs. Wishon and Gallegos got up to go to work. The couple did not attempt to awaken the victim, who did not have school that day. Mrs. Wishon went into Petitioner and Smallwood’s room to give them money to buy milk. Smallwood took the money and went to the store. When he returned, Petitioner went outside to work on his vehicle. After talking with Petitioner, Smallwood called Mrs. Wishon at work and told her the victim was missing. Mrs. Wishon left work and arrived back at the house at about 10:00 a.m. Smallwood also contacted Gallegos and the police. When Gallegos and the police arrived, they began an extensive search of the neighborhood. Petitioner and Smallwood participated in the search but deliberately avoided the area where they had dropped the victim’s body. At around 1:00 p.m., an unidentified boy alerted the police as to the body’s location. The police found the victim’s naked body under the tree where it had been left the night before. Petitioner’s confessions and testimony in his own defense are the only evidence implicating Smallwood.
The victim’s body was located 250 feet from the house. The victim was lying supine with her legs spread apart. The body was dirty and covered with grass. There was obvious trauma to the vaginal area and some type of oil located on one leg and in the vaginal area. The victim had sustained contusions to the left side of her face, her forehead, her right eye, and the right side of her nose.
The medical examiner determined that the victim died of asphyxiatiоn due to suffocation. He testified at trial that the victim’s rectum was “marketedly dilated” and that the anal trauma occurred while the victim was alive. He noted that the victim had various bruises and abrasions on her face and body, some of which were red, indicating that they occurred while the victim was still alive. She had also suffered a blunt force injury to her head. Mrs. Wishon testified that, before the night of the murder, the victim had no noticeable bruises or marks.
The police searched the victim’s house and seized numerous articles of evidence, including her underwear, nightshirt, and bed sheet. In the kitchen, the police found an empty beer bottle and two empty cardboard beer cartons in a plastic trash container. They also found two empty beer cans on the dishwasher and noted several hard liquor bottles on the kitchen shelves. In the carport, the police found another empty beer can and a large cardboard box filled with empty beer and soda cans. The police photographed the victim’s room and dusted it for fingerprints.
Because the house showed no signs of forced entry, the investigation focused on Petitioner and Smallwood. The police transported them to the police station for *1050 questioning. Detectives Armando Saldate, Jr., and Michael Chambers escorted them into separate interview rooms. Detective Saldate advised Petitioner of his Miranda rights and then questioned him while Detective Chambers questioned Smallwood. After initially denying any involvement in the victim’s death, Petitioner confessed to Detective Saldate. He later confessed a second time in the presence of both Detective Saldate and Detective Chambers. The trial court determined that these confessions were voluntary.
When Smallwood was confronted with Petitioner’s confessions, he denied any involvement in the victim’s death. He stated that if Petitioner had implicated him, it was only because he did not want to take the blame alone. The two were subsequently indicted for the murder and sexual molestation of the victim.
The State submitted blood samples taken from Petitioner and Smallwood, along with the evidence obtained at the crime scene, to a forensic laboratory for DNA testing. The lab later notified the State that Smallwood could not be included as a contributor to the evidence. The State dismissed the case against Smallwood based on insufficient evidence.
During Petitioner’s trial, the parties stipulated that a fingerprint removed from the victim’s bedroom matched Petitioner’s right middle finger; that semen was detected on the victim’s panties, nightshirt, and bed sheet; that DNA testing showed that the stain on the victim’s panties contained a banding pattern that matched the pattern obtained from Petitioner’s blood; and that the probability that an individual other than Petitioner was the source of the stain on the victim’s panties was one in 10 million for Caucasians and one in 67 million for Hispanics.
Petitioner took the stand in his own defense and testified that he participated in the victim’s death. He maintained that he was drunk and did not intend to kill her. He also testified that he believed the victim was dead at the time of the sexual penetration. On cross-examination, he was unable to explain the various bruises and abrasions on the victim’s body. Petitioner was prepared to call Smallwood as a witness, but on the advice of counsel Smallwood invoked his Fifth Amendment right not to testify.
The jury unanimously found Petitioner guilty of first degree murder and sexual conduct with a minor. The jury was divided, however, on whether the murder was premeditated or felony murder.
In sentencing Petitioner, the trial judge found two aggravating circumstances, that Petitioner committed the murder in an especially heinous, cruel, or depraved manner, and that he was an adult at the time of the offense and the victim was under 15 years of age. The judge found one statutory mitigating factor, Petitioner’s age of 18, and two non-statutory mitigating factors, Petitioner’s remorse and the recommendations of leniency from Detectives Saldate and Chambers. After considering each of the mitigating circumstances, the trial judge found that they were not sufficiently substantial to outweigh the aggravating factors and call for leniency. The judge, noting that “[ejach aggravating circumstance standing alone outweighs the total mitigation,” sentenced Petitioner to death for the murder.
The Arizona Supreme Court affirmed the conviction on direct appeal but reversed and remanded for resentencing, holding that the trial court had failed to consider whether Petitioner’s impairment at the time of the crime, coupled with his history of drug and alcohol abuse, constituted a non-statutory mitigating circumstance.
State v. Gallegos,
Petitioner thereafter filed a petition for state post-conviction relief (PCR) and a supplemental petition in the trial court. (PCR docs. 188, 204.) 5 The court denied relief on most of the claims, but set an evidentiary hearing regarding Petitioner’s claims of ineffective assistance of counsel. (ME 9/28/00.) Following the evidentiary hearing, the court denied those claims on the merits. (PCR doc. 227; see PR doc. 10.) Petitioner filed a petition for review in the Arizona Supreme Court, which summarily denied relief. (PR docs. 1, 12). Thereafter, Petitioner initiated the instant habeas proceedings.
EXHAUSTION AND PROCEDURAL DEFAULT
A writ of habeas corpus may not be granted unless it appears that a petitioner has exhausted all available state court remedies. 28 U.S.C. § 2254(b)(1);
see also Coleman v. Thompson,
The principle of exhaustion requires that a petitioner clearly alert the state court that he is alleging a specific federal constitutional violation.
See Casey v. Moore,
In Arizona, there are two procedurally appropriate avenues for petitioners to exhaust federal constitutional claims: direct appeal and post-conviction relief proceedings. Rule 32 of the Arizona Rules of Criminal Procedure governs PCR proceedings and provides that a petitioner is precluded from relief on any claim that could have been raised on appeal or in a prior PCR petition. Ariz. R.Crim. P. 32.2(a)(3). The preclusive effect of Rule 32.2(a) may be avoided only if a claim falls within certain exceptions and the petitioner can justify why the claim was omitted from a prior petition or not presented in a timely manner. See Ariz. R.Crim. P. 32.1(d)-(h), 32.2(b), 32.4(a).
A habeas petitioner’s claims may be precluded from federal review in two ways. First, a claim may be procedurally defaulted in federal court if it was actually raised in state court but found by that court to be defaulted on state procedural grounds.
Coleman,
Second, a claim may be procedurally defaulted if the petitioner failed to present it in state court and “the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.”
Coleman,
Because the doctrine of procedural default is based on comity, not jurisdiction, federal courts retain the power to consider the merits of procedurally defaulted claims.
Reed v. Ross,
Finally, pursuant to 28 U.S.C. § 2254(b)(2), the Court may dismiss plainly meritless claims regardless of whether the claim was properly exhausted in state court.
See Rhines v. Weber,
*1053 AEDPA STANDARD FOR RELIEF
Petitioner’s habeas claims are governed by the applicable provisions of the Antiter-rorism and Effective Death Penalty Act (AEDPA).
See Lindh v. Murphy,
Under the AEDPA, a petitioner is not entitled to habeas relief on any claim “adjudicated on the merits” by the state court unless that adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that 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).
The phrase “adjudicated on the merits” refers to a decision resolving a party’s claim which is based on the substance of the claim rather than on a procedural or other non-substantive ground.
Lambert v. Blodgett,
“The threshold question under AEDPA is whether [the petitioner] seeks to apply a rule of law that was clearly established at the time his state-court conviction became final.”
Williams v. Taylor,
The Supreme Court has provided guidance in applying each prong of § 2254(d)(1). The Court has explained that a state court decision is “contrary to” the Supreme Court’s clearly established precedents if the decision applies a rule that contradicts the governing law set forth in those precedents, thereby reaching a conclusion opposite to that reached by the Supreme Court on a matter of law,
*1054
or if it confronts a set of facts that is materially indistinguishable from a decision of the Supreme Court but reaches a different result.
Williams,
Under the “unreasonable application” prong of § 2254(d)(1), a federal habe-as court may grant relief where a state court “identifies the correct governing legal rule from [the Supreme] Court’s cases but unreasonably applies it to the facts of the particular ... case” or “unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.”
Williams,
Under the standard set forth in § 2254(d)(2), habeas relief is available only if the state court decision was based on an unreasonable determination of the facts.
Miller-El v. Dretke,
As the Ninth Circuit has noted, application of the foregoing standards presents difficulties when the state court decided the merits of a claim without providing its rationale.
See Himes v. Thompson,
DISCUSSION
Claim 1 Violation of Ring v. Arizona
Petitioner contends that he was entitled to be sentenced by a jury under
Ring v. Arizona,
Claim 2 Judicial bias on resentencing
Petitioner alleges that his due process right to a fair and impartial tribunal was violated because the trial judge was biased against him when he heard the case on remand. 6 (Dkt. 74 at 35-41.) For this proposition, Petitioner cites comments made by the judge indicating “antagonism” toward Petitioner and “contempt” for the resentencing proceedings. (Id. at 35-36.) He further contends that judicial bias was manifest in the “procedural irregularities” that occurred on resentencing — namely, the judge’s failure to hold a “separate” sentencing hearing after receiving the new mitigation evidence. (Id. at 36.) Respondents counter that the claim is unexhaust-ed and meritless.
Background
At the end of the resentencing hearing, the victim’s mother made a statement to the court in which she described the emotional trauma caused by the ongoing legal process, stating that “every time something like this comes up, it’s just one more knife that gets jabbed into me and my family and friends ... and it’s a constant never ending hell.” (RT 10/24/94 at 171-72.) She concluded, “I beg of you not to change anything that has been handed down already, because with all this going on, there seems like there’s no end, that there’s just no end.” (Id. at 172.) The trial judge responded with the following comments, which included a reference to the dissenting opinion in Gallegos I:
Let me apologize to everyone involved here for the obvious emotional trauma. Here we are these many years later and the matter has to be dragged up again. Justice Martone has referred to this— coming back to this court for resentenc-ing as a triumph of form over substance. This is simply a legal exercise, technicality type of situation, and again I wanted to apologize to everyone for my part in the fact that the supreme court determined that a remand hearing was necessary.
(Id. at 172.)
After the parties’ closing arguments, the judge proceeded to pronounce sentence. Prior to reading the portion of his special verdict dealing with nonstatutory mitigating factors, the judge remarked, “I honestly can say that I don’t understand the Supreme Court’s ruling, but I will abide by their ruling and I will do exactly that.” (RT 10/24/94 at 188.) Citing testimony elicited at the resentencing hearing, the court found that Petitioner’s impairment at the time of the murder and his history of substance abuse constituted a nonstatutory *1056 mitigating circumstance in addition to the circumstances previously found but concluded that all of mitigating evidence considered cumulatively was not sufficiently substantial to outweigh the aggravating factors and call for leniency. (Id. at 182-89.) In a final comment noted by Petitioner, the judge stated that “even if the Arizona Supreme Court told this court to weigh the alcohol and drug history and impairment ten times, this court would still find that each aggravating circumstance standing alone would outweigh all collective mitigation.” (Id. at 189-90.)
Analysis
Petitioner asserts that he exhausted his claim of judicial bias by raising it in his initial and supplemental PCR petitions and in his petition for review (PR). (Dkts. 74 at 35, 86 at 35.) The Court disagrees and finds that the claim is procedurally barred.
Petitioner’s initial PCR petition contained the allegation that Judge Hotham should have recused himself at resentenc-ing because he was unable or unwilling to “genuinely reweigh” the aggravating and mitigating circumstances and failed to do so. (PCR doc. 188 at 19.) The supplemental PCR petition raised the claim that “[t]here was no separate sentencing hearing, as required by law.” (PCR doc. 204 at 21.) The PR simply alleged that the trial court erred because it “failed to exercise its discretion in weighing aggravating and mitigating circumstances on remand.” (PR doc. 1 at 5.) The PR sought “review of all claims raised” in the PCR petitions
(id.
at 2) and included an appendix containing the petitions. In none of these filings did Petitioner allege a violation of his federal constitutional rights based upon the sentencing court’s bias. The claim is therefore not exhausted.
See Casey v. Moore,
In addition, the PCR court found Petitioner’s recusal claim “precluded pursuant to Rule 32.2(a)(3) (waived because not raised at trial or on appeal), and, alternatively was necessarily determined by Judge Reinstein in denying Defendant’s motion for change of judge filed at the beginning of the post-conviction relief proceeding.”
7
(PR doc. 10 at 1.) This preclu
*1057
sion ruling rests on an independent and adequate state procedural bar.
8
See Smith,
As cause to overcome the default, Petitioner asserts the ineffectiveness of appellate counsel. (Dkt. 86 at 38.) Before ineffectiveness of appellate counsel may be used to establish cause for a procedural default, it must have been presented to the state court as an independent claim.
See Edwards v. Carpenter,
Even if Petitioner had properly exhausted a claim of ineffective assistance of appellate counsel, he would not be entitled to relief on this claim. Where ineffective assistance of appellate counsel is raised as cause for excusing a procedural default, application of
Strickland v. Washington,
To succeed on a judicial bias claim, a petitioner must “overcome a presumption of honesty and integrity in those serving as adjudicators.”
Withrow v. Larkin,
On federal habeas review, the Court “must ask whether the state trial judge’s behavior rendered the trial so fundamentally unfair as to violate federal due process under the United States Constitution.”
Duckett v. Godinez,
Read in the context of the entire resentencing proceeding, the judge’s comments neither suggested that he had a personal grievance against Petitioner nor created a pervasive climate of partiality and bias. As Respondents note, in apologizing for the necessity of holding the re-sentencing proceedings, the judge quoted from Judge Martone’s dissent in
Gallegos I.
His comments were not directed against Petitioner but expressed frustration on behalf of the victim’s family and regret at his role in prolonging the proceedings. The judge’s other comments, while hyperbolic, simply reflect his conclusion regarding the weight to be ascribed to Petitioner’s impairment and substance abuse history as a nonstatutory mitigating circumstance. The remarks did not reveal opinions of “such a high degree of favoritism or antagonism as to make fair judgment impossible.”
Liteky,
Finally, even assuming that the judge was biased, there was no prejudice because the Arizona Supreme Court independently reviewed the sentence and determined that the death penalty was appropriate.
Gallegos II,
Conclusion
Claim 2 is both procedurally barred and meritless. Petitioner is not entitled to ha-beas relief.
Claims 3-9 Ineffective Assistance of Counsel
Petitioner alleges that defense counsel performed in a constitutionally ineffective manner during the guilt and penalty stages of his trial. The PCR court denied these claims after holding an evidentiary hearing. (PCR doc. 227; see PR doc. 10 at 2.)
Clearly established federal law
For claims of ineffective assistance of counsel, the applicable law is set forth in
Strickland v. Washington,
The inquiry under
Strickland
is highly deferential, and “every effort
*1059
[must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”
Because an ineffective assistance claim must satisfy both prongs of
Strickland,
the reviewing court “need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.”
Strickland,
“When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.”
Id.
at 695,
Also inherent in the prejudice analysis demanded by
Strickland
is the principle that in order to demonstrate that counsel failed to litigate an issue competently, a petitioner must prove that the issue was meritorious.
See Kimmelman v. Morrison,
Finally, the Court notes that under the AEDPA its review of the state court’s decision is subject to another level of deference.
Bell v. Cone,
Claim 3 Counsel “abandoned” Petitioner at trial by conceding guilt
Petitioner alleges that trial counsel’s strategy of conceding Petitioner’s role in the victim’s death, together with his negative comments to the jury about Petitioner and his actions, amounted to an abandonment of all defenses such that prejudice is presumed under
United States v. Cronic,
Background
Trial
In his opening statement, counsel spoke of the “uncomfortable position” he was in defending Petitioner, the difficulty of the jurors’ role, the horrific nature of the crime, and its tragic effects on the victim’s family. (RT 3/7/91 at 47-49.) He continued: “What my client has done is despicable. He’s absolutely responsible for the death of Kendall Wishon in this case, and at the end of this case I’m going to ask you to convict my client, but we’re not quite at that point yet.” (Id. at 47.) Counsel also indicated that Petitioner would testify, explaining that he “is the key in this case”:
You will hear from Mr. Gallegos. He will tell you what I have told you. It will be difficult. It will be ugly. It will be horrible. But nonetheless, in order for me to paint my picture, in order for me to paint that picture of events as it truly happened, you have to hear from him ...
You can’t make that decision in a case of this magnitude, I believe, unless you hear from him. And you will. He will get up and tell you what he told Detective Saldate. He will tell you of his responsibility in this case; that he is responsible. He will tell you of Mr. Smallwood. My client will get up there and he will literally bear his soul to you so that you can make a fair and adequate decision in this case.
(Id. at 49-50.)
Counsel concluded his opening statement by reiterating that the State had the burden of proving “beyond a reasonable doubt ... that what they say is true, what they have accused Michael Gallegos of doing is the truth, and that what they are asking you to convict him of is first degree murder and sexual conduct with a minor.” (Id. at 51.) Counsel then stated:
I am asking you to be fair. I’m asking you to convict my client. I’m asking you to make a fair and realistic assessment of the facts as they will be represented to you. And I think that’s all I can ask. That’s all the court and the *1061 system can demand of you. It’s a very difficult duty, and I hope you do it well.
m
At trial, counsel vigorously cross-examined Dr. Bolduc, the medical examiner, attempting to cast doubt on his testimony that the victim’s injuries indicated she was sexually assaulted pre-mortem. (RT 3/11/91 at 51-65.) Counsel presented Petitioner’s testimony on the last day of trial. Petitioner testified that he was extremely intoxicated at the time of the crime, that Smallwood was an equal participant, that the victim’s death was accidental, that he believed the victim was dead when he penetrated her, and that he was sorry for what he had done. (RT 3/13/01 at 46-72.)
The next day, during his closing argument, counsel explained to the jury:
Yesterday, I put my client on the stand and I treated him with taming [sic] contempt. I don’t normally do that. But I though it was called for in this case. You needed to see Michael Gallegos. You needed to see that he is not the person that the State has portrayed to you. You needed to see that he’s a child. He’s a man-child. He’s pathetic, he’s despicable, but he’s a child.
You needed to see what Detective Sal-date saw.... He told you he believed Michael Gallegos. Michael told him that he never intended for this to happen. And he told you that he believed him.
(RT 3/14/91 at 28.)
Counsel further informed the jury:
I told you in my opening that I felt uncomfortable. I do. Several times throughout the course of this trial, that was willfully [sic] apparent. And Pm sorry for that. But I don’t think to characterize the situation in any other manner other than it’s very, very real. Stark reality is fair. I think I would insult you.... I didn’t want to get up here and on behalf of my client deny things that are not in dispute. The facts, as Mr. Stalzer [the prosecutor] related them to you are not in dispute. His theory is, though.
(Id. at 25-26.)
Counsel again acknowledged that Petitioner was “absolutely responsible for the taking of Kendall Wishon’s life,” adding: “That is extremely difficult for me to say. It’s probably extremely difficult for a lot of people to hear. But it’s true.” (Id. at 26.)
However, counsel proceeded to attack the allegation that Petitioner “knew he would cause the death of Kendall and that he did so with premeditation.” (Id.) Counsel argued:
The State’s theory in this case is that George Smallwood, Michael Gallegos were playing Nintendo, two 18-year-old high school boys, were playing Nintendo and that when they walked into the bedroom of Kendall Wishon, that they experienced those feelings. I think that that is absurd. I don’t believe that the evidence in any way, shape, or form showed you that that was the case.
(Id. at 26-27.)
Counsel urged the jury to set aside its passions and “make a fair and just assessment of the facts.” (Id. at 27.) He then continued his attack on the first degree murder charge and argued for conviction on a lesser count:
One of the instructions that you are going to receive is an instruction that deals with the crime of reckless manslaughter, and what that says is if the defendant caused the death of another person by conduct showing a conscious disregard of a substantial and unjustifiable risk of death, then you can find him guilty of that. I submit to you that all of the facts that you have heard certainly show that that was the case.
Mr. Stalzer has told you about premeditation. To me that’s just that *1062 somehow my client was cunning, he was cold, he was calculating when he did this. I would simply ask you to think of what he told you, think of what he told Detective Saldate, think of what Saldate said about him. He was telling the truth.
(Id. at 29.)
Next counsel discussed the medical examiner’s testimony:
We’ve had some testimony from Dr. Bolduc about post-mortem injuries, about time of death, about the injuries that were present on the body of young Kendall. I think you have heard enough to make the decision in that regard for yourself.
(Id. at 30-31.)
Counsel concluded his closing argument by again apologizing to the jurors for the difficulty of their task and asking the jury to be fair. (Id. at 30.)
PCR proceedings
Testifying at the evidentiary hearing before the PCR court, counsel disputed the allegation that he had provided constitutionally ineffective assistance at trial. (RT 12/1/00 at 6.) He explained that his strategy in conceding Petitioner’s responsibility for the victim’s death was to ask the jury “to consider very seriously not finding him responsible for a first degree murder but something lesser.” (Id. at 10.) He described his theory of the case as follows:
[T]hat given Michael’s age, given his alcohol consumption, given his ... prior history, his upbringing, that this was in no way shape or form a premeditated act. It was a lesser ... type of situation, and we couldn’t escape, given his statements, ... the fact that he beared [sic] some responsibility, but it was just an effort to characterize that.
(Id. at 39.)
Counsel defended his negative comments about Petitioner in his opening statement as an attempt to prepare the jury for the horrific facts they were going to hear and to maintain the defense’s credibility:
[I]t was going to draw the string with some very horrible facts that were going to come in. We needed to set the stage for what was going to happen because his statements [to Detective Saldate were going to come in. We had already litigated those ... and I think you lose a lot of ground in a trial by simply by trying to say, you know, it’s red when it’s really black.... This was going to come down to the credibility of Michael and the believability of Michael. And to ... characterize what had happened in any type of a fashion less than what it was, I think would have been ... certainly ineffective. I mean, you can’t dance around the issues in every case. And I think this was one that called for us to simply step up to the plate and confront them and call them what they were because otherwise I think ... given the facts as they were about to unfold at that point, given the pretrial rulings, we knew we had a tough road. And I think to simply ignore things at that point would have been a disservice, and I think would have clearly been ... a less than adequate job.]
(Id. at 25-26.)
Counsel added that his comments during opening were “not an attempt to vilify or distance myself from Michael. I mean, I think quite the opposite. We needed to ... strongly characterize what had happened accurately and then ... explain the reasons for the conduct.” (Id. at 34.) Counsel also testified that he had discussed this approach with Petitioner. (Id. at 41-42.)
Counsel acknowledged that in his opening statement, when he conceded Petitioner’s guilt and asked the jury to convict *1063 him, he did not qualify his statements by specifying a charge less than first degree murder. (Id. at 27.) He testified that he did so purposely. (Id. at 28.) He indicated that his strategy was “to present to the jury the facts and arguments from which they would find him guilty of a lesser offеnse.” (Id. at 41.) Counsel testified that his approach to the case was a “reasonable tactic based on [his] experience.” (Id. at 42.)
The PCR court, in denying Petitioner’s claims of ineffective assistance, determined that the applicable standard was Strickland, not Cronic, because “trial counsel’s performance did not constitute abandonment.” (PCR doc. 227 at 2.) The court then set forth its application of Strickland’ s two-pronged standard:
As to the first prong, the Court finds that Petitioner has not sufficiently shown that trial counsel’s performance was deficient. Because of the overwhelming evidence of Defendant’s guilt, it was reasonable for trial counsel to adopt a strategy that could result in a conviction for a lesser-ineluded offense such as second degree murder or manslaughter, thereby avoiding the death penalty.... To make a request for manslaughter, as trial counsel did in closing argument here, it was important for him to maintain credibility with the jurors, which might explain his tactics and choice of wording during his opening statement. His words about the “despicable conduct” of the Defendant were harsh, but probably added to counsel’s credibility with the jury when pleading for manslaughter; there simply is no way to sugar-coat the sodomization and murder of an eight year old female child.
(Id.)
The court then explained that even if counsel’s performance had been deficient, Petitioner would not be entitled to relief under Strickland because he failed to prove prejudice:
[T]he State’s evidence was completely overwhelming: The Defendant confessed twice to two different police detectives, and the DNA evidence in Kendall’s rectum linked to the Defendant was devastating to the defense; all the other evidence corroborated the Defendant’s guilt. There is no reasonable probability that, but for any errors made by trial counsel, the result of the trial would have been any different.
(Id. at 3.)
Analysis
In
United States v. Cronic,
the Supreme Court created an exception to the
Strickland
standard for egregious cases evidencing an actual breakdown in the adversarial process at trial.
In
Florida v. Nixon,
Similarly, in
United States v. Thomas,
In Petitioner’s case, counsel actively advocated on his client’s behalf throughout the trial, examining the State’s witnesses, including the medical examiner, and presenting Petitioner’s testimony in an attempt to advance the theory that Petitioner, while responsible for the victim’s death and therefore guilty of lesser-included offenses, should not be convicted of first degree murder.
See Millender v. Adams,
Moreover, counsel articulated a strategic purpose for his concession of Petitioner’s guilt and his acknowledgment of the egregious nature of the crime; namely, he was attempting to establish credibility with the jury. Courts have recognized this as a valid strategy rather than a form of abandonment that would trigger the
Cronic
presumption of prejudice.
See Thomas,
Because counsel subjected the State’s case to meaningful adversarial testing and had a strategic basis for his concession of guilt, the Cronic presumption of prejudice does not apply, and the Court will evaluate Claim 3 using the Strickland standard.
It is not necessary for the Court to assess the quality of counsel’s performance because it is clear that Petitioner cannot satisfy
Strickland’s
prejudice prong.
Strickland,
Conclusion
The PCR court’s rejection of this claim did not constitute an unreasonable application of Cronic and Strickland. Therefore, Petitioner is not entitled to relief on Claim 3.
Claim 4 Failure to introduce exculpatory photographic evidence
Petitioner alleges that counsel performed ineffectively by failing to introduce photographic evidence showing George Smallwood’s fingernails and the scratches on the victim’s face. (Dkt. 74 at 56-59.) According to Petitioner, as a “chronic nail biter” his fingernails, in contrast to Small-wood’s, were too short to have caused the scratches, a fact which would have corroborated Petitioner’s testimony, supported a conviction on a lesser count, and established several mitigating factors. (Id.)
At the evidentiary hearing, counsel testified that Petitioner had short nails as a result of his nail-biting habit and that photographs had been taken of his and Smallwood’s hands. (RT 12/1/00 at 14.) Counsel acknowledged that Petitioner’s testimony might have been corroborated by evidence showing that Smallwood’s nails were more capable of causing the scratches on the victim’s face. (Id. at 15.) However, counsel was concerned because the photos of Petitioner showed cuts to the back of his hands; the State could have argued that the injuries were caused in Petitioner’s struggle with the victim. (Id. at 16.) At the evidentiary hearing counsel also noted that he had presented testimony from Petitioner’s mother that Petitioner had a habit of biting his fingernails. (Id. at 35; see RT 3/13/91 at 29-30.) Finally, counsel testified that Petitioner’s nails, while chewed down, were capable of leaving scratches. (RT 12/1/00 at 43)
The PCR court found that there was “no merit” to this claim. (PCR doc. 227 at 3.) This ruling is not an unreasonable application of
Strickland
because Petitioner can show neither deficient performance nor prejudice. Counsel explained that he was aware of the photos and made a tactical decision not to open the door to evidence of injuries to Petitioner’s hands. According to
Strickland,
such strategic choices are “virtually unchallengeable.”
Petitioner is not entitled to relief on Claim 4.
Claim 5 Failure to prepare for cross-examination of medical examiner
Claim 6 Failure to retain independent expert to challenge medical examiner
Petitioner alleges that counsel performed ineffectively in his presentation of *1066 the theory that Petitioner had sex with a corpse rather than a human being. (Dkt. 74 at 60-63.) Pursuant to this theory, Petitioner was technically not guilty of sexual conduct with a minor because the offense required both a living victim and a belief on Petitioner’s part that the victim was alive. 9 Petitioner faults counsel for failing to prepare for his cross-examination of the medical examiner and for failing to retain an independent expert to support the defense theory. (Id.)
Analysis
The PCR court found these claims meritless. (PCR doc. 227 at 3.) This decision was not an unreasonable application of Strickland because Petitioner cannot establish that counsel’s performance was deficient or prejudicial.
With respect to Claim 5, the record refutes Petitioner’s argument that counsel was unprepared to cross-examine Dr. Bol-duc. As previously noted, defense counsel questioned the medical examiner regarding the timing of the victim’s injuries, challenging Dr. Bolduc’s testimony that the anal penetration occurred prior to death. (RT 3/11/91 at 51-65.)
In support of his allegation that counsel was unprepared, Petitioner cites an incident during Dr. Bolduc’s testimony when counsel became aware that certain notes and diagrams from Dr. Bolduc’s report had not been disclosed. Counsel moved to exclude the materials; the court took a recess to allow counsel to review the information, which documented blunt force trauma to the victim’s head. (Id. at 31-37.) After reviewing the documents, counsel withdrew his motion, informing the court:
Based upon my discussions with [Dr. Bolduc] ... it appears that the items are not going to make much of a difference to his opinions as it relates to the typed version [which was disclоsed to counsel]. I take it from speaking to him there is going to be no surprise. Obviously I will listen closely; if there is, I will jump up. But based upon what he’s told me, I’m not going to be surprised about anything.
(Id. at 37-38.)
At the post-conviction evidentiary hearing, counsel reiterated that the omitted material was “not significant because clearly it was referred to within the body of the report, and it was not something that I did not know about.” (RT 12/1/01 at 47.) Counsel further indicated that his focus when cross-examining Dr. Bolduc was the injury to the victim’s rectum and whether it was consistent with pre- or post-mortem sexual assault, explaining that his goal was to point out inconsistencies in Dr. Bolduc’s testimony regarding the timing of the victim’s death. (Id. at 44-45.) Based upon this record, Petitioner has not shown that counsel performed at a constitutionally ineffective level with respect to his handling of Dr. Bolduc’s testimony.
Regarding Claim 6, counsel did not present a defense expert to testify on Petitioner’s behalf. At the PCR evidentiary hearing, counsel testified that he made efforts to retain an independent medical examiner, contacting a pathologist in Los Ange-les. (RT 12/1/00 at 11.) However, counsel “was unable to secure an opinion that would have directly contradicted Dr. Bol- *1067 due’s opinion” that the penetration occurred pre-mortem. (Id. at 48.)
Petitioner offers nothing but speculation that an expert witness could have been found whose testimony would have supported the defense theory. This is insufficient to support an allegation of ineffective performance or prejudice, particularly in light of counsel’s efforts to locate such an expert and his substantial cross-examination of Dr. Bolduc.
See Bower v. Quarterman,
For the reasons set forth above, Petitioner is not entitled to relief on Claims 5 and 6.
Claim 7 Requiring Petitioner to testify
Petitioner alleges that counsel rendered ineffective assistance by requiring him to testify without valid strategic or tactical reasons and without a full investigation and well-developed defense theory. (Dkt. 74 at 64-66.) He contends that his testimony was harmful and unnecessary, given that Detective Saldate had already related all the details of his confession to the jury. (Id.) Petitioner also asserts that counsel expressed contempt for him and that the decision to put him on the stand was the product of a conflict of interest stemming from counsel’s desire to ingratiate himself with the jury and distance himself from Petitioner. (Id.)
Background
At the evidentiary hearing before the PCR court, counsel disagreed with the contention that Petitioner’s testimony offered nothing beneficial to the defense:
[I]t was my feeling that the jury in this case and in this type of case, given the facts of the case and given the elements of what we were dealing with, really needed to hear from Michael. They needed to make their own assessment of him and make those critical credibility judgments that they had to make given what we were asking them to do.
(RT 12/1/00 at 10.) When asked why he did not rely solely on Detective Saldate’s testimony to put Petitioner’s version of events before the jury, counsel responded:
Well, you know, coming from a police officer that’s somewhat coldhearted and dispassionate, and it is a little bit worse, you know, than coming from a defendant. I think in Michael’s situation he was a young man. He was eighteen years old.... He was not sophisticated. He was not somebody that was coldblooded and uncaring, and I thought the jury needed to see that, to see that he was literally a child. That he was not, you know, the man the State was trying to portray him as. I mean, he was not that type of person.
(Id. at 49-50.)
Counsel further explained that Petitioner’s testimony was necessary to demon *1068 strate his remorse, to detail his history of alcohol abuse, and to generate sympathy from the jury by showing that he was “an honest and polite young person” who came from a “good, strong family” and had “good support.” (Id. at 50-51.) Counsel stated that he “was hoping ... that ... those values would come out and be apparent in front of a jury and maybe they would realize that here was a poor young man who made a tragic mistake.” (Id. at 51.) According to counsel, Petitioner’s testimony was also required to support the defense theory that the victim was dead at the time of the sexual contact. (Id.)
When asked to characterize his demean- or toward Petitioner when Petitioner testified at trial, counsel answered:
You know, it kind of went back and forth.... I put Michael on, and at times it’s my recollection during his testimony — I mean, he and I had talked about areas that we were going to directly confront, and he needed to let this jury see him address those issues. And, you know, he was — he was certainly very scared about it. He certainly ... had some, I guess, reluctance to talk, and I pushed him. I pushed him when he was on the stand because ... I felt that the jury needed to make ... a real critical assessment of him.... He had a lot of things going for him, and he had simply made a bad mistake, and they needed ... to make that assessment. And it is hard to make that assessment of someone if they are sitting there being mute and emotionless, and that’s who we tried to get out of Michael in front of the jury.
(Id. at 22-23.) Counsel acknowledged being “forthright” with Petitioner, asking “very direct questions” and not “babying him when he was on the stand,” but he denied treating Petitioner with contempt. (Id. at 23.)
Counsel also testified that, contrary to Petitioner’s assertions, he did not force or require Petitioner to testify:
[M]y recollection is that I didn’t force ... Michael or put Michael — that was a decision that we made. Before my opening statement we had discussed it for some time because I would never have said what I said in my opening statement ... that he was going to take the stand, that these people were going to hear from him unless I had discussed that, and I explicitly have a very clear memory of discussing it with Michael, of writing a letter to Michael memorializing our discussions with respect to what I was going to do in opening because I told Michael I didn’t want to have any surprises.... [W]e talked about him taking the stand and, you know, that type of point, you know, this room is not a room to be timid in, and we decided ... that, heck, this is how we were going to play it.
(Id. at 21-22.)
In contrast, Petitioner testified that he did not recall receiving a letter from counsel, that the decision that he would testify was made on short notice, and that he had mixed feelings about testifying but acceded to counsel’s advice. (Id. at 85-86.)
Applying Strickland, the PCR court found that the decision to offer Petitioner’s testimony was a strategic matter and did not amount to deficient performance:
Calling the Defendant as a witness was also reasonable strategy because that was the only way to emphasize the Defendant’s extreme intoxication that night, which was very important to defeat the State’s claim of premeditation and specific intent. The Defendant’s testimony also raised the issue of George Smallwood’s complicity and the fact that it was George who put his hand *1069 over Kendall’s mouth, causing her death by asphyxiation.
(PCR doc. 227 at 3.) The court also found that Petitioner had not demonstrated prejudice in light of the overwhelming evidence of his guilt. (Id.)
Analysis
The decision of the PCR court did not represent an unreasonable application of Strickland. Counsel’s performance was not deficient. He explained that there were strategic reasons for calling Petitioner as a witness. Petitioner was able to provide first-hand information in support of key elements of the defense: his level of intoxication, the accidental nature of the victim’s death, the extent of Smallwood’s participation, the assertion that the victim was dead at the time he penetrated her, and Petitioner’s remorse. Counsel also believed that Petitioner would be a sympathetic witness and that in order to humanize him and explain his actions to the jury he would have to testify.
The record indicates that counsel’s strategy was fully considered, developed in consultation with Petitioner, and “the result of reasonable professional judgement.”
Strickland,
Having found that counsel’s performance was not deficient under Strickland, it is unnecessary to address the question of prejudice. Nevertheless, the Court notes that Petitioner’s allegations of prejudice are unpersuasive. Petitioner asserts that the decision to present his testimony was harmful because the trial court and the Arizona Supreme Court relied on the testimony to find that he acted with foresight and appreciated the wrongfulness of his conduct and to establish cruelty as an aggravating factor. To the contrary, the information most damaging to Petitioner’s defense was contained in Detective Sal-date’s testimony. To the extent Petitioner’s testimony offered additional information, it tended to reduce his culpability by emphasizing his level of impairment and the absence of any intent to kill the victim.
Claim 7 is without merit and will be denied.
Claim 8 Denial of right to counsel at resentencing
Petitioner alleges that the trial court denied his right to the effective assistance of counsel by its handling of his pro per motion for new counsel. (Dkt. 74 at 66-68.)
At the resentencing hearing, the court discussed with Petitioner and counsel a letter Petitioner had sent to the court requesting a new attorney. (RT 10/24/94 at 108-10.) During the discussion, Petitioner first told the judge that he would like the letter to be entered into the record. (Id. at 108.) He then indicated, however, that he and his attorney had “resolved” the issue and Petitioner had “agreed to keep him on as my attorney” and wanted him to handle the hearing. (Id. at 109.) After Petitioner told the judge he was withdrawing his request for new counsel, the judge gave him back the letter and it was not entered into the record. (Id. at 110.)
The PCR court found this claim “precluded pursuant to Rule 32.2(a)(3) (waived because not raised at trial or on appeal), and alternatively, ... not color-able.” (PR doc. 10 at 1.) This preclusion ruling rests on an independent and adequate state procedural bar.
See Smith,
*1070
Petitioner alleges that the procedural default of this claim is excused by the ineffective performance of his аppellate counsel. (Dkt. 86 at 57-58.) As stated above with respect to Claim 2, because Petitioner failed to exhaust an independent claim of ineffective assistance of appellate counsel in state court, such an allegation cannot constitute cause for the procedural default of Claim 8. In addition, the issue omitted by appellate counsel is meritless. Petitioner withdrew his request for new counsel after discussing the matter with current counsel. The record clearly indicates that he was not, as he now contends, dissuaded from filing his letter, but agreed to withdraw the document when the judge informed him that he could do so if he wished. (RT 10/24/94 at 110.) To the extent Petitioner alleges that his counsel was ineffective at resentencing, that claim will be discussed below.
Claim 9 Failure to investigate and present mitigating information at sentencing
Petitioner alleges that trial and resen-tencing counsel provided ineffective assistance by failing to sufficiently investigate and present evidence concerning his mental health and personal history. (Dkt. 74 at 68-77.)
Petitioner raised this claim in his supplemental PCR petition, alleging that counsel performed ineffectively by failing to explore Petitioner’s mental health background, specifically the “origins, extent and implications of Petitioner’s learning disability.” (PCR doc. 204 at 22-23.) The PCR court denied the claim, finding neither deficient performance nor prejudice. (PR doc. 10 at 2.)
This Court previously found the claim exhausted but denied Petitioner’s requests for evidentiary development. (Dkt.106.) Having reviewed the merits of the claim, the Court finds, for the reasons set forth below, that Petitioner is not entitled to habeas relief.
Background
Initial sentencing
At the guilt phase of trial, Petitioner’s mother testified about his learning disability and alcohol consumption. (RT 3/13/91 at 23-32.) Petitioner himself testified that he suffered from a learning disability; he also detailed his alcohol consumption on the day of the crimes. (Id. at 34-35, 37-41, 42-58, 84-90, 112-16.)
Following Petitioner’s conviction, counsel moved for a “diagnostic evaluation” of Petitioner pursuant to Rule 26.5 of the Arizona Rules of Criminal Procedure. (ROA 119.) The court granted the motion and appointed Dr. John DiBacco to evaluate Petitioner and determine whether, at the time of the crime, his “capacity to appreciate the wrongfulness of his conduct or to conform his conduct to requirements of the law was significantly impaired, but not so impaired as to constitute a defense to the prosecution.” 10 (ROA 122.) Counsel prepared a sentencing memorandum and attached to it the pre-dispositional reports written by Petitioner’s juvenile probation officer. (ROA 127.) These reports detailed Petitioner’s status as a learning disabled student. Specifiсally, the reports stated:
Mike is a Special Education student ... currently enrolled in the 12th grade. Mike was diagnosed as a Learning Disabled Student during Elementary School. Mrs. Gallegos reports that *1071 Mike is able to learn things that require the use of his hands, but book material takes a long time for Mike to understand. Mrs. Gallegos reports that Mike does well in Mechanics, while Math gives him the most difficulty.
Mike’s attendance has been poor. Attendance reports indicate an excessive number of truancies and 21 classes missed due to Out of School Suspension.
'Mike’s grade report for the 1988-89 school year reflect the following: Weight Training F; Resource English D; Resource U.S. History B; Independent Study C; Welders Helper C and Resource Math F.
It is this Officer’s opinion that Mike Gallegos is a young man who apparently has not developed the ability to think before he acts. Mike tends to behave impulsively and allows himself to become involved in a situation without considering the consequences. Mike’s actions do not appear to be vicious, just thoughtless. Once he is confronted with his mistake, it is this Officer’s experience that Mike will choose to deny his actions and attempt to avoid consequences instead of admitting his mistake.
(Id., Ex. at 5.)
At the sentencing hearing, counsel called as witnesses Petitioner’s father, mother, brother, and sister Margaret, all of whom testified that Petitioner was a good kid from a good family and was remorseful for his actions. (RT 5/24/91 at 21-30.) Petitioner’s juvenile probation officer also testified. (Id. at 10-20.) He expressed his opinion that Petitioner was the least likely of his clients to commit this type of crime. (Id. at 16.) He also testified, reiterating comments made in his written reports, that Petitioner tended to act impulsively. (Id. at 15.) He further explained that Petitioner was a follower, not a leader; he “had always been the type of person who would get involved with somebody else, and he always seemed to be the person who was led rather than be the leader himself.” (Id. at 19-20.) Next, Detectives Chambers and Saldate testified that they did not believe the death penalty was the appropriate sentence for Petitioner. (Id. at 30-41.) Detective Chambers testified that he strongly opposed the death penalty for Petitioner. (Id. at 37.) He indicated that Petitioner’s “age is still a question in my mind. I’m aware of his chronological age, but I’m not certain of his — his actual maturity. My impression in my brief contact with this young man was of him, one, being unsophisticated, and, two, being at some point less than his chronological age.” (Id. at 39-40.) Finally, Petitioner took the stand, reading a statement that expressed his remorse for the victim’s death and attributing his actions to drug and alcohol impairment. (Id. at 42-43.)
Counsel also submitted Dr. DiBacco’s report (id. at 57-58, 65) and dozens of letters advocating a life sentence rather than the death penalty. Also before the court was the presentenee investigation report, which included sections on Petitioner’s substance abuse history and mental health. (ROA 131.) The latter section included the comments of Dr. J.J. Singer, who counseled Petitioner while he was on juvenile probation. (Id. at 6.) Dr. Singer described Petitioner as “definitely a follower and not a leader” who “[w]hen he got into trouble it was because he was following his peers in order to be accepted.” (Id.)
In its special verdict, the trial court stated that it had considered in mitigation Petitioner’s “documented” history of drinking and substance abuse and the fact that Petitioner had “a documented learning disability.” (RT 10/24/94 at 184-85.) The
*1072
Arizona Supreme Court likewise noted that Petitioner “presented evidence that he had a history of alcohol and drug abuse, as well as a documented learning disability.”
Gallegos I,
Resentencing
As previously noted, the Arizona Supreme Court remanded the case for resen-tencing with the directive that the trial court assess Petitioner’s impairment as a nonstatutory mitigating circumstance.
Id.
at 23,
Prior to the resentencing hearing, counsel sought and the court authorized the appointment of mitigation investigator Mary Durand and Dr. C.J. Shaw, an addiction specialist. (ROA 154.) Dr. Shaw prepared a report opining, based upon information provided by Petitioner, that Petitioner’s blood alcohol level at the time of the crimes was 0.2 or higher. (ROA 161; see RT 10/24/94 at 142.)
At the resentencing hearing, counsel presented testimony from Petitioner and his family and Mends regarding his drug and alcohol use, learning disability, and passive, nonviolent personality.
Petitioner testified that he suffered from a learning disability and was placed in special education classes starting in the fourth grade. (RT 10/24/94 at 5-6.) He testified that he began drinking alcohol at age 12 or 13, and began using marijuana in sixth or seventh grade and methamphetamine in tenth or eleventh grade. {Id. at 6-7.) Petitioner stated that his conduct deteriorated when George Smallwood arrived at his home in Flagstaff; he drank more, used drugs, and skipped school. (Id. at 8-9.) He explained that on the day of murder he and Smallwood drank half a bottle of scotch, schnapps, and beer in the morning, smoked two joints, and then drank beer throughout the afternoon and night. (Id. at 11-12.) He testified that the crimes would not have happened if he had not been impaired and if Smallwood had not been present. (Id. at 13.)
Petitioner’s mother testified that from second grade on he had attended special education classes due to his learning disability. (Id. at 54.) She stated that Petitioner had a tendency to take the blame for things other people did. (Id. at 55.) Mrs. Gallegos became aware of Petitioner’s drug use when he was in junior high. (Id. at 56.) According to her testimony, Smallwood was violent and a bad influence; he exerted control over Petitioner and Petitioner followed his lead. (Id. at 58.)
Petitioner’s sister Margaret testified that she was aware of his drug and alcohol use in the years before the murder. (Id. at 63-64.) She stated that Petitioner was nonviolent and mellow when he was intoxicated. (Id. at 64-65.) She testified that after Smallwood arrived Petitioner’s behavior changed; he became more sullen, withdrawn, and hateful, and abandoned his old friends in favor of Smallwood. (Id. at 66.)
Petitioner’s sister Maria Covarrubiaz became aware of his drug and alcohol use when he was in seventh grade. (Id. at 71.) She too indicated that Petitioner became quiet and mellow when drinking; he did not get into fights or arguments. (Id. at 72.) She described Petitioner as a follower who was led by other people; he did not stand up for himself or resist peer pressure. (Id. at 72-73.) Smallwood was the leader and Petitioner followed him. (Id. at 74.) She indicated that Smallwood had a bad influence on Petitioner, who began to drink more and became rebellious and hateful toward his parents. (Id. at 76.)
Carlos Covarrubiaz, Petitioner’s brother-in-law, testified that Petitioner began drinking at age 13 or 14. (Id. at 83.) He too had observed that Petitioner became mellow under the influence of drugs. (Id.)
*1073 Michelle Emig, Petitioner’s niece, testified that Petitioner started drinking in junior high. (Id. at 96.) According to Emig, Petitioner began to drink every day and used marijuana and crystal meth. (Id.) She indicated that Petitioner was mellow when drunk. (Id. at 97.) Emig explained that Petitioner became “snobby and rude” when Smallwood arrived. (Id.) She testified that Smallwood was the leader and Petitioner the follower. (Id. at 98.) She also testified that Smallwood expressed resentment of the victim and thought she was spoiled. (Id. at 99.)
Todd Emig, Michelle’s husband and a school friend of Petitioner, testified that he began drinking with Petitioner three years before the murder. (Id. at 86.) Like the other witnesses, he testified that Petitioner was quiet and laid back when intoxicated. (Id. at 87.) He further testified that Petitioner used marijuana, acid, and mushrooms, under the influence of which he remained mellow and did not become argumentative or violent. (Id. at 88.) Petitioner began drinking more and became distant from family and friends after Smallwood’s arrival. (Id.) Petitioner would go along with Smallwood’s ideas even if he did not really want to; he never stood up to Smallwood. (Id. at 89.)
Greg Weiber, another friend of Petitioner, testified that they drank a lot and smoked marijuana and crystal meth. (Id. at 116.) According to Weiber, they used marijuana 10 times a day, crystal meth two or three times a week, and alcohol whenever they had the next day off from work or school. (Id.) Petitioner became passive and mellow under the influence of drugs and alcohol; he went along with thе crowd, never initiated anything, and was never violent. (Id. at 117-18.) Weiber testified that Smallwood was in control of the relationship with Petitioner; he was stronger-willed and manipulative. (Id. at 119.)
David Harvey, an acquaintance of Petitioner, testified that he never saw Petitioner drink but did smoke marijuana with him. (Id. at 128.) Petitioner never became violent. (Id.) Harvey also testified that Smallwood dominated the relationship with Petitioner. (Id. at 129-30.)
Anthony Duran, another Flagstaff friend, testified that he drank and used drugs with Petitioner and that Petitioner was “easygoing” when under the influence. (Id. at 136.) Duran indicated that Petitioner became less happy after Small-wood’s arrival. (Id. at 138.) According to Duran, Petitioner was generally unable to resist Smallwood’s influence. (Id. at 138— 39.) Duran characterized Petitioner as a follower who was easy to manipulate. (Id. at 140.)
In addition to these witnesses, counsel again presented the testimony of Detectives Saldate and Chambers in opposition to a death sentence. Detective Saldate testified, however, that he did not believe Petitioner was significantly intoxicated at the time of the murder. (Id. at 36-37.) Detective Chambers testified in support of a life sentence based on his feeling that the killing was accidental; he believed Petitioner had been drinking. (Id. at 43-45.)
In rebuttal, the State called Dr. Alexander Don to critique Dr. Shaw’s report and his conclusion that Petitioner was intoxicated at the time of the crime with a high blood alcohol level. (Id. at 148-54.) The State also called the victim’s mother, who testified that she did not observe signs that Petitioner was impaired on the night of the murder. (Id. at 161.)
At the close of the hearing, the court indicated that it would consider mitigating evidence from the first sentencing hearing, including the testimony of Petitioner’s juvenile probation officer. (Id. at 170.)
*1074 In sentencing Petitioner, the court again rejected impairment as a statutory mitigating factor. (Id. at 185.) In doing so, the court repeated its finding that Petitioner “has a documented learning disability. His testimony is that it affects his math and spelling but not his reading or understanding. There is no evidence that the defendant is mentally deficient.” (Id.) The court found that Petitioner’s impairment and substance abuse history constituted nonstatutory mitigation but that it, together with the other mitigating circumstances, did not outweigh the aggravating factors. (Id. at 188-90.)
In
Gallegos II
the Arizona Supreme Court affirmed the trial court’s findings regarding the aggravating and mitigating factors, including the mitigating value of Petitioner’s impairment and history of substance abuse.
PCR evidentiary hearing
At the evidentiary hearing on Petitioner’s ineffective assistance claims, counsel at Petitioner’s trial and initial sentencing testified on cross-examination that he had been assisted by mitigation specialist Mary Durand. (RT 12/1/00 at 51.) Counsel had asked Ms. Durand to identify “areas of mitigation that we could utilize on behalf of [Petitioner], ... schoоl records, psych records, ... disciplinary records, work history records, things like that.” (Id. at 51-52.) Counsel testified that he had no reason to believe that Petitioner suffered from “mental problems”; he “didn’t have any indication from the family or any records to suggest that.” (Id. at 53.) In addition to Ms. Durand, counsel was assisted by another investigator, who was referred to him by Petitioner’s family; this investigator was able to find little mitigating information. (Id.)
Despite raising the claim in his PCR petition, during the evidentiary hearing PCR counsel did not ask trial counsel any questions about his performance during the initial sentencing proceedings or otherwise address the issue of ineffective assistance at sentencing. 11
Analysis
Clearly established federal law
The right to effective assistance of counsel applies not just to the guilt phase but “with equal force at the penalty phase of a bifurcated capital trial.”
Silva v. Woodford,
With respect to prejudice at sentencing, the
Strickland
Court explained that “[w]hen a defendant challenges a death sentence ... the question is whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.”
The clearly-established federal law governing this claim includes the Supreme Court’s decision in
Bell v. Cone,
he must do more than show that he would have satisfied Strickland’s test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. Rather, he must show that [the state court] applied Strickland to the facts of his case in an objectively unreasonablе manner.
Id.
at 698-99,
In reviewing Petitioner’s allegations of ineffective assistance, this Court further notes that the judge who presided over the trial, sentencing, and resentencing also presided over the PCR proceedings. Thus, in considering Petitioner’s ineffective assistance claims, Judge Hotham was already familiar with the record and the evidence presented at trial and sentencing. The judge’s familiarity with the record provides this Court with an additional reason to extend deference to the PCR court’s ruling.
See Smith v. Stewart,
Application of Strickland to Claim 9
Petitioner contends that if his attorneys had conducted a constitutionally adequate investigation into his mental health history, “they would have discovered that [Petitioner’s] family, friends and teachers would have provided evidence, including significantly more corroborating evidence than either counsel presented at sentencing or resentencing.” (Dkt. 74 at 70.) Specifically, witnesses could have addressed Petitioner’s “learning disability, placement in special education classes, and designation as being Emotionally Handicapped,” as well as the “embarrassment and low self esteem” he experienced as a result of his placement in special education, and the fact that he was a “follower, incapable of standing up to others, especially George Smallwood.” (Id. at 70-72.) Petitioner further contends that he was prejudiced by counsel’s failure to present corroborating evidence of Petitioner’s drug and alcohol use. (Id. at 73.)
Petitioner has failed to demonstrate that counsel’s sentencing-stage performance was either deficient or prejudicial, let alone that the PCR court’s rejection of the claim was objectively unreasonable. First, it is clear that re-sentencing counsel did not perform defi-ciently in presenting evidence of Petitioner’s history of drug and alcohol abuse and passive personality. As the Arizona Supreme Court noted, “At the resentencing hearing, defendant and 9 lay witnesses testified concerning defen
*1076
dant’s past substance abuse, and Dr. Shaw’s report discussed defendant’s self-report of past substance abuse.”
Gallegos II,
Similarly, counsel did not perform ineffectively with respect to the presentation of evidence concerning Petitioner’s intellectual capacity. Petitioner’s trial counsel retained the services of Mary Durand, who subsequently assisted resentencing counsel, to review Petitioner’s school and medical records in search of mitigating information to present at the initial sentencing hearing. (RT 12/1/00 at 51-52.) At both the initial sentencing and at resentencing, Petitioner’s attorneys made the court aware that Petitioner suffered from a learning disability and had been placed in special education classes throughout his school years.
Nonetheless, Petitioner contends that counsel performed deficiently by relying on Dr. DiBaceo’s report at the first sentencing hearing because Dr. DiBacco originally misdiagnosed Petitioner and because his revised report, which did address Petitioner’s learning disability, was ignored by the court. (Dkt. 92 at 13.) This argument is unpersuasive. Again, both the trial court and the Arizona Supreme Court acknowledged Petitioner’s disability. In discussing Petitioner’s youth as a mitigating factor, the supreme court explained:
The weight that age should receive as a mitigating factor depends on the defendant’s intelligence, maturity, and life experiences. In this case, defendant was in special education classes beginning in second grade, which could indicate that his intelligence was below average. A psychological expert’s report concluded, however, that defendant has “at least average fluid intelligence,” that he is “not mentally deficient,” and that he can understand the consequences of his behavior.
Gallegos II,
Because evidence regarding Petitioner’s mental functioning was presented to and considered by the trial court and the state supreme court, Petitioner cannot establish that he was prejudiced by counsel’s performance.
See Hedrick v. True,
In
Eddmonds v. Peters,
In rejecting this claim of ineffective assistance, the Seventh Circuit reviewed the proffered mitigation evidence and found that “none of this would have helped had counsel expressly raised it at sentencing.” Id. at 1321. The court concluded that “we are certain counsel’s failure to throw a few more tidbits from the past or one more diagnosis of mental illness onto the scale would not have tipped it in Eddmonds’ favor.” Id.
Likewise, in Petitioner’s case there was not a reasonable probability of a different sentence if counsel had presented to the sentencer additional details regarding Petitioner’s intellectual limitations or substance abuse history.
Conclusion
The PCR court, having presided over the trial, the initial sentencing, and the resentencing proceedings, rejected the claim that Petitioner’s right to effective assistance of counsel was violated by the penalty-phase performance of his attorneys. This decision was not an unreasonable application of Strickland. Therefore, Petitioner is not entitled to relief on Claim 9.
Claim 11 Unconstitutionality of cruel, heinous, or depraved aggravating factor
Petitioner contends that the aggravating factor set forth in A.R.S. § 13-703(F)(6) is facially overbroad and was applied to his sentence in an unconstitutional manner. 13 (Dkt. 74 at 78-90.)
*1078 Background
At sentencing, the trial court found that Petitioner committed the murder in an especially cruel, heinous and depraved manner pursuant to § 13-703(F)(6). (ROA 132 at 2-4.) The court found that the murder was especially cruel based upon the victim’s physical and mental suffering. (Id.) In finding the murder especially heinous or depraved, the court noted the helplessness of the victim and the senselessness of the crime, as indicated by the victim’s small size, trusting relationship with Petitioner, and the fact that Petitioner could have accomplished his sexual goals without taking the victim’s life. (Id. at 3.) The court further described the crime as “marked by debasement and perversion,” citing Petitioner’s admission “that he had anal intercourse with the victim thinking that since she was already dead, he might as well finish what he started.” (Id.) Finally, the court found that Petitioner “actively participated in the killing” and in fact “killed Kendall.” (Id. at 8-9.)
On direct appeal, the Arizona Supreme Court considered and rejected both the facial and as-applied challenges to (F)(6). In upholding the constitutionality of the factor, the court explained:
The United States Supreme Court has upheld the constitutionality of this statutory provision, and has found that we have construed its operative terms “in a manner that furnishes sufficient guidance to the senteneer.” Walton v. Arizona,497 U.S. 639 , 655,110 S.Ct. 3047 , 3058,111 L.Ed.2d 511 (1990). The trial judge specifically applied our limited construction of the terms especially “heinous,” “cruel,” and “depraved” in its special verdict. We therefore find no support in the record for defendant’s contention that the judge applied this factor without adhering to statutory requirements.
Gallegos I,
The court also rejected Petitioner’s argument that the (F)(6) aggravating factor was inapplicable without proof that he physically performed the actions that caused the victim’s death, finding that Petitioner “actively participated in the killing.” Id.
Finally, the court denied Petitioner’s claim that the trial court erred in finding that the murder was committed in an especially heinous or depraved manner. The court detailed its findings:
Heinousness and depravity focus on defendant’s mental state and attitude at the time of the offense as evidenced by his words and actions. State v. Salazar,173 Ariz. 399 , 412,844 P.2d 566 , 579 (1992). In determining whether the murder was committed in a heinous or depraved manner, we consider 5 factors: (1) whether defendant relished the murder, (2) whether defendant inflicted gratuitous violence on the victim, (3) whether defendant mutilated the victim, (4) the senselessness of the crime, and (5) the helplessness of the victim. State v. Gretzler,135 Ariz. 42 , 52,659 P.2d 1 , 11 (1983). “The mere existence of senselessness or helplessness of the victim, in isolation, need not always lead to a holding that the crime is heinous or depraved -” Gretzler,135 Ariz. at 52-53 ,659 P.2d at 11-12 . “Either or both of these factors [senselessness and helplessness], considered together with other circumstances present in a particular case, may lead to the conclusion that an offense was heinous or depraved.” Gretzler,135 Ariz. at 52 ,659 P.2d at 11 . Here, we have more. See Runningeagle,176 Ariz. at 65 ,859 P.2d at 175 .
We believe that the record in this case supports a finding of senselessness, helplessness, and gratuitous violence. *1079 The victim was helpless; she was an 8-year-old girl who stood a mere 4 feet 5 inches tall and weighed only 57 pounds. Defendant, an 18-year-old male who was in a trust relationship with the victim, stole into the victim’s room while she was asleep and senselessly suffocated her. We agree with the trial judge that the victim “never had a chance.”
We further find that defendant inflicted gratuitous violence on the victim. Recently, we held that a defendant’s act of necrophilia “without question” constituted the infliction of gratuitous violence on the victim. State v. Brewer,170 Ariz. 486 , 502,826 P.2d 783 , 799 (1992). Here, the trial court noted that the medical examiner testified that the “injuries to [the victim’s] rectum were inflicted either premortem or contemporaneously with her death [perimortem].” Defendant, however, testified that he had anal intercourse with the victim for about 15 to 20 minutes after she went limp and after he believed she was dead. Thus, defendant believed he was committing an act of necrophilia. Defendant explained his conduct in a statement made during the presentence investigation:
He stated that he went ahead and finished the act because “it wasn’t like she was going to tell anybody.” He sodomize[d] the victim because it was like “why not.” He knew he was going to get caught the next day.
This statement evinces the depravity of defendant’s mental state. Moreover, other evidence of gratuitous violence exists. After defendant sodomized the victim, he dumped her naked body under a tree where it was found, bruised and battered, the next day.
We think the record supports the trial judge’s finding that the murder was committed in an especially heinous or depraved manner. We therefore need not address the judge’s finding of cruelty-
Gallegos I,
Analysis
As the Arizona Supreme Court explained, the United States Supreme Court has upheld the (F)(6) aggravating factor against allegations that it is vague and overbroad, rejecting a claim that Arizona has not construed it in a “constitutionally narrow manner.”
See Lewis v. Jeffers,
With respect to the state courts’ application of the factor to Petitioner’s sentence, habeas review “is limited, at most, to determining whether the state court’s finding was so arbitrary and capricious as to constitute an independent due process or Eighth Amendment violation.”
Jeffers,
Petitioner contends that the state courts erred in finding that he committed the murder in an especially heinous and depraved manner because there no proof that he actually killed the victim and because he believed she was dead when he sexually assaulted her. He further contends that the heinousness or depravity of his actions must be “evaluated in light of his age and limited intellectual ability.” (Dkt. 74 at 88.)
*1080
The relevant issue in applying the heinous or depraved prong of (F)(6) is the defendant’s state of mind; nevertheless, the determination is based not on his subjective mental state but on his “words and acts.”
See State v. Fulminante,
Additionally, it is clear, notwithstanding Petitioner’s assertion to the contrary, that a rational factfinder could have determined that Petitioner actually killed the victim. Petitioner testified that, with Smallwood’s hand already on the victim’s mouth, he placed his hand over her nose and kept it there as she gasped for air, struggled and flailed, and then went limp. (RT 3/13/91 at 63-66, 103-04.) He testified that he knew he had killed her “by suffocation.” (Id, at 97.) He acknowledged that he “actively participated in the killing of Kendall.” (Id. at 127.)
With respect to the heinous or depraved prong of (F)(6), a rational trier of fact could also find, based upon Petitioner’s words and actions, several of the Gretzler factors. A factfinder could determine that the purpose of the crime was sexual assault, and that the murder was not necessary to achieve that goal. Therefore, the murder was senseless. The age and size disparity between Petitioner and the victim support the finding that she was helpless. Finally, as the Arizona Supreme Court explained, Petitioner’s prolonged act of perceived necrophilia constituted gratuitous violеnce, the depravity of which was further indicated by Petitioner’s comments about his conduct.
A rational fact finder could have determined that Petitioner’s actions were heinous and depraved in satisfaction of the (F)(6) aggravating factor. Therefore, the Arizona Supreme Court’s denial of this claim was not an unreasonable application of Jackson. Claim 11 is denied.
Claims 12-18 Application of mitigating evidence
Petitioner alleges that the trial court refused to weigh, or gave inadequate weight to, several mitigating circumstances, including his lack of intent to kill the victim (Claim 12), his intoxication and substance abuse history (Claim 13), his age (Claim 14), his lack of a serious criminal record (Claim 15), the recommendations of leniency from two detectives (Claim 16), the “aberrant” nature of the crime (Claim 17), and the cumulative impact of all the mitigating evidence (Claim 18). (Dkt. 74 at 93-114.)
Background
As the Arizona Supreme Court noted,
Gallegos II,
The court further found that Petitioner proved four non-statutory mitigating circumstances: remorse, recommendations of leniency by the police, a history of alcohol and drug abuse, and alcohol impairment. {Id. at 9-10.) The court found that Petitioner did not prove as a non-statutory mitigating factor the disparity in how he and Smallwood were treated. {Id. at 10.)
Before resentencing Petitioner, the trial court considered the evidence introduced at trial, mitigation evidence from the first sentencing hearing, the mitigation evidence Petitioner presented at the resen-tencing hearing, and the presentence report and attachments. {Id. at 2.) The court ultimately determined that the mitigating circumstances were not sufficiently substantial to call for leniency and resen-tenced Petitioner to death. {Id. at 11.)
In
Gallegos II,
the Arizona Supreme Court considered Petitioner’s arguments that he was entitled to leniency based on each of his proven mitigating circumstances.
Analysis
A sentencing court is required to consider any mitigating information offered by a defendant, including non-statutory mitigation.
See Lockett v. Ohio,
On habeas review, a federal court does not evaluate the substance of each piece of evidence submitted as mitigation. Instead, it reviews the state court record to ensure the state court allowed and considered all relevant mitigation.
See Jeffers v. Lewis,
As described above, the judge considered and made findings regarding the mitigating factors urged by Petitioner.
{See
ROA 163 at 5-10.) While Petitioner disagrees with these findings, the court considered the evidence, which is the constitutional issue. Moreover, the judge clearly articulated that he considered all the mitigation presented, nonstatutory as well as statutory, and found that it did not warrant leniency.
See Parker v. Dugger,
*1082
In sum, there is a distinction between “a failure to consider relevant evidence and a conclusion that such evidence was not mitigating.”
Williams v. Stewart,
Moreover, the Arizona Supreme Court independently reviewed the reсord and “conclude[d] that the mitigation is insufficiently substantial to call for leniency.”
Gallegos II,
Claims 12 through 18 will be denied.
Claim 19 Erroneous jury instructions
Petitioner alleges that his trial was rendered fundamentally unfair when the trial court provided erroneous jury instructions on the element of premeditation and the charge of sexual conduct with a minor. (Dkt. 74 at 114-21.)
Premeditation instruction
Petitioner contends that the premeditation jury instruction provided by the trial court relieved the State of proving the element of actual reflection necessary for first degree murder. (Id. at 114-17.) This allegation is both proeedurally barred and meritless.
He first raised the claim in his PCR petition. (PCR doc. 188 at 4.) The entirety of the claim was contained in a heading which cited an Arizona Court of Appeals case and made no allegation of a federal constitutional violation.
14
The PCR court rejected the claim, finding it “precluded pursuant to Rule 32.2(a)(3) (waived because not raised on appeal)” and “not colorable.” (PR doc. 10 at 2.) In making this ruling, the Court invoked Arizona’s adequate and independent state procedural bar.
See Smith,
Petitioner alleges that the procedural default of this claim is excused by the ineffective performance of appellate counsel. (Dkt. 86 at 80.) As previously indi *1083 cated, because Petitioner failed to exhaust an independent claim of ineffective assistance of appellate counsel, such an allegation cannot constitute cause for the procedural default of this claim. In addition, for the reasons set forth below, the claim is meritless.
A challenge to jury instructions does not generally state a federal constitutional claim.
See Engle v. Isaac,
“It is well established that the instruction ‘may not be judged in artificial isolation,’ but must be considered in the context of the instructions as a whole and the trial record.”
Estelle,
At the conclusion of the parties’ closing arguments, the court instructed the jury that:
“Premeditation” means that the defendant’s knowledge existed before the killing long enough to permit reflection. However, the reflection differs from the knowledge that conduct will cause death. It may be as instantaneous as successive thoughts in the mind, and it may be proven by circumstantial evidence. It is this period of reflection, regardless of its length, which distinguishes first degree murder from knowing second degree murder.
(RT 3/14/91 at 35;
see
ROA 117.) The court did not include the provision, set forth in A.R.S. § 13-1101(1), that “[a]n act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion.” (RT 3/14/91 at 35;
see
ROA 117.) Arguably, this omission, combined with the phrase “instantaneous as successive thoughts,” rendered the instruction erroneous under state law.
See State v. Ramirez,
Nonetheless, the court’s instruction on premeditation did not render Petitioner’s trial fundamentally unfair. The instruction does not, on its face, permit a finding of premeditation based solely on *1084 the passage of time, but specifically states that first degree murder requires a “period of reflection.” Nothing in the prosecutor’s argument or the remainder of the court’s instructions inaccurately suggested that the State needed only to prove the time element of reflection in lieu of actual premeditation. In fact, in his closing argument the prosecutor characterized the question of premeditation in this case as “difficult,” but emphasized, as opposed to the mere passage of time, Petitioner’s “successive thoughts of the mind, that period of reflection, that awareness, that knowledge” that occurred prior to and during Petitioner’s smothering of the victim. (RT 3/14/91 at 11.)
In addition, the jury was instructed on both felony murder and premeditated murder theories of first degree murder. The jury convicted Petitioner of first degree murder, but its verdict was not unanimous as to whether Petitioner was guilty of premeditated murder or felony murder. (ROA 116.) The jury also convicted Petitioner of the predicate felony of sexual conduct with a minor. (ROA 115.) Given these circumstances, the fairness of Petitioner’s trial was not affected by the premeditation instruction. The killing occurred in the course of the sexual assault, so the predicate for felony murder was met, notwithstanding any potential jury confusion regarding the premeditation theory of first degree murder.
See Carriger v. Lewis,
Sexual conduct with a minor instruction
The trial court provided the jury with written instructions on all of the counts, including the charges of sexual conduct with a minor and attempted sexual conduct with a minor. (ROA 117.) The instruction for sexual conduct stated:
The crime of sexual conduct with a minor under age fifteen requires proof of the following two things:
1. The defendant knowingly penetrated the anus of another person with a part of his body; and
2. The other person had not reached her fifteenth birthday.
(Id.) The instruction regarding attempted sexual conduct stated:
The crime of Attempted Sexual Conduct with a Minor requires proof of one of the following:
1. The defendant intentionally engaged in conduct which would have been a crime if the circumstances relating to the crime were as the defendant believed them to be; or
2. The defendant intentionally committed any act which was a step in a course of conduct which the defendant planned would end or believed would end in the commission of a crime; or
3. The defendant engaged in conduct intended to aid another person to commit a crime, in a manner which would make the defendant an accomplice, had the crime been committed or attempted by the other person.
(Id.)
When the trial judge verbally instructed the jury on the latter count, he omitted the word “attempted” from the title of the offense. (RT 3/14/91 at 38.) However, his verbal instructions on the elements of the offense conformed to the written instructions and included the word “attempted.” (Id.) The judge did not define either the term “accomplice” or the theory of accomplice liability. Defense counsel did not object to the instructions.
Petitioner asserts that the verbal instructions might have confused the jury and caused it erroneously to convict him of sexual conduct with á minor rather than *1085 attempted sexual conduct with a minor. (Dkt. 74 at 118-21.)
The Arizona Supreme Court rejected the allegation that Petitioner was prejudiced by any confusion caused by the trial court’s verbal instructions.
Gallegos I,
This decision is not an unreasonable application of clearly established federal law. In Petitioner’s case, there was “uncontested” and “overwhelming” evidence,
Neder,
For the reasons set forth above, Claim 19 is denied.
Claim 20 Insufficient evidence of sexual conduct with a minor
As discussed above, Petitioner contends that there was insufficient evidence to support his conviction for sexual conduct with a minor because the victim was already dead at the time of the penetration, or Petitioner mistakenly believed that she was dead. (Dkt. 74 at 121-24.) The Arizona Supreme Court denied this claim, rejecting Petitioner’s analysis of the mistake-of-fact issue:
In reviewing the sufficiency of the evidence, we examine the evidence in the light most favorable to sustaining the verdict, and we resolve all reasonable inferences against defendant. Dr. Bolduc, the medical examiner who performed the autopsy, testified that the anal trauma occurred while the victim was alive. This uncontradicted expert testimony defeats the argument that the victim was not a person at the time of the sexual penetration.
We likewise reject defendant’s contention that he did not possess the mental state of “knowingly” because he believed that the victim was dead at the time of the sexual penetration. Sufficient evidence establishes that defendant formed the intent to sexually assault the victim before her death. Officer Saldate’s testimony regarding defendant’s confessions, although not entirely consistent with defendant’s trial testimony, included the following additional details. Officer Saldate testified that defendant had discussed with George [Smallwood] his previous acts of sexual intercourse be *1086 fore entering the victim’s room. Defendant further stated that he thought about fondling the victim’s “ass.” Defendant got the baby oil from the bathroom, which he eventually applied to his penis and the victim’s anus to facilitate the penetration. Defendant also stated that once he and George thought that the victim was dead, they decided that they “might as well finish.”
We also repudiate defendant’s argument for public policy reasons. We refuse to apply a strict, literal interpretation to Arizona's Criminal Code as defendant would have us do. If the criminal code is to have any meaning, we must fairly construe its provisions to promote justice and give effect to the objects of the law. This is not a case where defendant happened upon a dead body. Defendant beat and suffocated the victim in the course and furtherance of a sexual offense. We do nothing to promote justice by allowing a sex offender, who forcibly renders his victim unconscious before committing the sexual offense and ultimately kills her, to avoid conviction because he says that he mistakenly thought the victim was dead. Embracing such a concept would only encourage sex offenders to first kill their victims or render them unconscious before committing the sexual offense.
Also, defendant contends that if a mistaken belief that the victim was over 18 years old is a defense to sexual conduct with a minor, A.R.S. § 13 — 1407(B), then a mistake as to the victim’s vitality likewise must constitute a defense. If the legislature had intended to establish such a defense, which we doubt for the reasons previously stated, then it could expressly have done so.
Gallegos I,
Analysis
In reviewing a claim of insufficient evidence to support a conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson,
It is plain that a rational factfinder could have determined that all of the elements of sexual conduct with a minor had been proved. The Arizona Supreme Court detailed the “overwhelming evidence” against Petitioner:
Defendant confessed on two occasions and testified at trial that he sexually penetrated the victim’s anus. The stained material on the victim’s panties contained a DNA banding pattern that matched the banding pattern of defendant’s blood. Defendant’s fingerprint was lifted from the victim’s room. In addition, no evidence was presented that George [Smallwood] or аnyone else pen *1087 etrated the victim’s anus. Defendant’s only defense was that the victim was dead. As defendant admits, Dr. Bol-duc’s uncontradicted testimony indicated that anal trauma occurred while the victim was alive.
Gallegos
This evidence, together with the court’s interpretation of the relevant statute and its rejection of Petitioner’s arguments about his state of mind and the timing of the victim’s death, renders Claim 20 meritless.
Claims 21-29 Death Penalty Challenges
Petitioner challenges the constitutionality of the death penalty in general and Arizona’s capital sentencing scheme in particular. (Dkt. 74 at 124-49.) He asserts that Arizona’s death penalty statute suffers from the following constitutional infirmities: it does not adequately channel the sentencer’s discretion (Claim 21); the Arizona Supreme Court abandoned the procedural safeguard of proportionality review (Claim 22); it fails to narrow the class of death eligible defendants (Claim 23); it establishes an unconstitutional burden of proof (Claim 24); it makes the death penalty mandatory and establishes a “presumption of death” (Claim 25); and the prosecutor has “unbridled” discretion to seek the death penalty (Claim 26). Petitioner also contends that the death penalty is not a deterrent (Claim 27) and is imposed in a discriminatory manner against poor minority males (Claim 28). Finally, he argues that Arizona’s death penalty scheme violates his substantive due process rights (Claim 29). These claims are baseless, and the Arizona Supreme Court’s rejection of them,
Gallegos II,
Respondents contend that these claims have not been properly exhausted. As previously noted, pursuant to 28 U.S.C. § 2254(b)(2), the Court may dismiss plainly meritless claims regardless of whether the claim was properly exhausted in state court.
See Rhines v. Weber,
Analysis
Rulings of both the Ninth Circuit and the United States Supreme Court have upheld Arizona’s death penalty statute against allegations that particular aggravating factors do not adequately narrow the sentencer’s discretion.
See Jeffers,
As Petitioner acknowledges, there is no federal constitutional right to proportionality review of a death sentence,
McCleskey v. Kemp,
In
Smith,
the Ninth Circuit also disposed of the argument that Arizona’s death penalty statute is constitutionally infirm because “the prosecutor can decide whether to seek the death penalty.”
In
Walton,
the Supreme Court rejected the argument that “Arizona’s allocation of the burdens of proof in a capital sentencing proceeding violates the Constitution.”
With respect to Petitioner’s contention that the death penalty in Arizona is imposed in a discriminatory manner against poor males, clearly established federal law holds that “a defendant who alleges an equal protection violation has the burden of proving ‘the existence of purposeful discrimination’ ” and must demonstrate that the purposeful discrimination “had a discriminatory effect” on him.
McCleskey v. Kemp,
Also unsupported by Supreme Court precedent is the claim that the death penalty is unconstitutiоnal because it fails to serve as a deterrent to crime. In
Gregg,
The value of capital punishment as a deterrent of crime is a complex factual issue the resolution of which properly rests with the legislatures, which can evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts.
*1089 In sum, we cannot say that the judgment of the Georgia Legislature that capital punishment may be necessary in some cases is clearly wrong. Considerations of federalism, as well as respect for the ability of a legislature to evaluate, in terms of its particular State, the moral consensus concerning the death penalty and its social utility as a sanction, require us to conclude, in the absence of more convincing evidence, that the infliction of death as a punishment for murder is not without justification and thus is not unconstitutionally severe.
Id.
at 186-87,
Finally, there is no clearly established federal law holding that the death penalty violates substantive due process. The Unites States Supreme Court has never held that the death penalty per se is unconstitutional.
See Gregg,
Petitioner is not entitled to relief on Claims 21 through 29.
CONCLUSION
The Court finds that Petitioner has failed to establish entitlement to habeas relief on any of his claims. Therefore, Petitioner’s Amended Petition for Writ of Habeas Corpus will be denied and judgment entered accordingly.
CERTIFICATE OF APPEALABILITY
In the event Petitioner appeals from this Court’s judgment, and in the interests of conserving scarce resources that might be consumed drafting and reviewing an application for a certificate of appealability (COA) to this Court, the Court on its own initiative has evaluated the claims within the petition for suitability for the issuance of a certificate of appealability.
See
28 U.S.C. § 2253(c);
Turner v. Calderon,
Rule 22(b) of the Federal Rules of Appellate Procedure provides that when an appeal is taken by a petitioner, the district judge who rendered the judgment “shall” either issue a certificate of appealability (“COA”) or state the reasons why such a certificate should not issue. Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner “has made a substantial showing of the denial of a constitutional right.” This showing can be established by demonstrating that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner” or that the issues were “adequate to deserve encouragement to proceed further.”
Slack v. McDaniel,
The Court finds that reasonable jurists could debate its resolution of the merits of *1090 Claim 9. For the reasons stated in this Order and in the Court’s Order regarding Petitioner’s request for evidentiary development filed on October 6, 2004 (Dkt.106), the Court declines to issue a COA with respect to any other claims.
Accordingly,
IT IS ORDERED that Petitioner’s Amended Petition for Writ of Habeas Corpus (Dkt.74) is DENIED. The Clerk of Court shall enter judgment accordingly.
IT IS FURTHER ORDERED that the stay of execution entered by this Court on October 16, 2001 (Dkt.5), is VACATED.
IT IS FURTHER ORDERED that a Certificate of Appealability is GRANTED as to the following issues: Whether the Court erred in determining that Claim 9, alleging ineffective assistance of counsel at sentencing, lacked merit.
IT IS FURTHER ORDERED that the Clerk of Court forward a copy of this Order to Rachelle M. Resnick, Clerk of the Arizona Supreme Court, 1501 W. Washington, Phoenix, AZ 85007-3329.
Notes
. “Dkt." refers to the documents in this Court's case file.
. Petitioner acknowledges that Claim 10 is moot. (Dkt. 86 at 60.)
. Except where otherwise indicated, the following background is based upon the facts as found by the Arizona Supreme Court on direct appeal from Petitioner's conviction.
State v. Gallegos,
. John Antieau represented Petitioner on appeal and at resentencing. Greg Clark represented Petitioner at trial and the initial sentencing.
. "PCR doc.” refers to documents filed in the state PCR proceedings (Case No. CR1990-3339). “PR doc.” refers to documents filed with the Arizona Supreme Court in connection with Petitioner’s petition for review from the denial of post-conviction relief (Case No. CR-01-0054-PC). "ROA” refers to the trial court record for Petitioner’s direct appeal (Case No. CR-94-389-AP). "RT” refers to the reporter’s transcripts and “ME” to the minute entries of the trial court. The original reporter's transcripts and certified copies of the trial and post-conviction records were provided to this Court by the Arizona Supreme Court. (Dkts.14, 18.)
. Maricopa County Superior Court Judge Jeffrey A. Hotham presided over Petitioner's trial, both sentencing proceedings, and the PCR proceedings.
. Petitioner filed a motion seeking tо remove Judge Hotham from the PCR proceedings, alleging that he had an “interest or prejudice that prevented him from being fair and impartial in further proceedings.” (PCR doc. 187 at 1.) The motion cited the judge's comments and rulings at resentencing. (Id. at 2-4.) Judge Reinstein, to whom the issue was assigned, denied the motion, writing:
[T]he Court does not find the defendant's allegations to constitute a claim of interest or prejudice.... The sentencing judge did not refuse to apply the instructions from the opinion of the Arizona Supreme Court. His agreement with the dissenting opinion did not mean he would not consider the mitigating circumstances. In fact, it is clear that he did, but found the aggravating circumstances to outweigh all of the collective mitigation presented.
As to the sentencing court’s "apology” for the resentencing, while one could question the choice of words, in effect, the Court was apologizing as much for its failure to recognize the need to consider the defendant’s impairment on the night of the homicide and the defendant’s alcohol and drug history as non-statutory mitigating circumstances at the original sentencing.
Contrary to the defendant’s position, the sentencing court did reweigh the aggravating and mitigating circumstances. Of particular note is that the Supreme Court subsequently affirmed the defendant's death sentence. The sentencing judge afforded the defendant a full resentencing hearing ... despite his explanation that the hearing was "simply a legal exercise, technicality type situation.” While these remarks and others made may have been ill-advised, they do not constitute a showing of interest or prejudice such that a fair and impartial hearing cannot be had in the defendant's Rule 32 proceedings.
*1057 (PCR doc. 192 at 1-2.)'
. The fact that Judge Hotham alternatively discussed the merits of the claim does not affect the application of Rule 32.2(a)(3) because the judge “explicitly invoke[d] a state procedural bar as a separate basis for decision.”
Harris v. Reed,
. The applicable statute, A.R.S. § 13-1405(A), provides: "A person commits sexual conduct with a minor by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person who is under eighteen years of age.”
As discussed in Claim 20, the Arizona Supreme Court rejected Petitioner’s theory in
Gallegos I
on "public policy” and other grounds.
. This language reflects the statutory mitigating factor set forth in A.R.S. § 13-703(G)(1).
. Mr. Antieau, Petitioner's counsel on appeal and at resentencing, had passed away prior to the evidentiary hearing. (See RT 12/1/00 at 90.)
. This information is contained in the report of Nancy Cowardin (Dkt. 92, Ex. 1), one of the documents as to which the Court denied Petitioner’s motion to expand the record (Dkt. 78; see Dkt. 106).
. Petitioner also asserts that application of this factor was invalid under Ring. (Dkt. 74 at 90-93.) As explained above in Claim 1, the holding in Ring does not apply retroactively so this allegation is meritless.
. Claim VIII, as set forth in the initial PCR petition, consisted of the following heading: “THE JURY WAS IMPROPERLY INSTRUCTED REGARDING PREMEDITATION (ACTUAL REFLECTION NOT REQUIRED;
STATE v. RAMIREZ,
249 Ariz. Adv. Rpt. 16,