Runningeagle v. Schriro

arbitrary changes, but Defendants from RUNNINGEAGLE, Bernard Sean change inter power has the

Concord Petitioner-Appellant, reasonably re changes if are change fees market conditions. prevailing lated to Likewise, Advisory Network Board RYAN, Department L. Charles Arizona large member banks like (composed of Corrections, Respondent- Defendants) control, does not create Bank Appellee. interchange power it had no to set because board. The fees or to control Concord’s No. 07-99026. influence, Advisory Board has be Network Appeals, United States Court of large it the views of represents cause Ninth Circuit. However, input poli member banks. mem pricing cies and issues interested Argued and Submitted Feb. 2011. type of control

bers does not constitute July Filed 2012. exception to Illinois necessary to meet the Freeman, at 1145-46 Brick. See (control ownership); existed from cf. L.P., Mgmt., v. Miller Tech.

Werner (“The (Del.Ch.2003) ability to

A.2d Advisory cannot [by Board]

offer ideas ability manage as an

be construed a Delaware Interprise.”). As

affairs of board of directors

corporation, Concord’s authority, responsibili power,

has the

ty manage corporation. Del.Code Therefore,

Ann. tit. to control

STAR, Bank Defendants must have control di

had of Concord’s board of

rectors, which is not demonstrated here.

CONCLUSION reasons,

For these we AFFIRM the dis- summary judgment.

trict court’s Plain- standing damages

tiffs lack to seek for the

alleged antitrust violations. Sands, Defender,

Jon M. Federal Public Ashley and Jennifer Y. Garcia and J. Mc- Donald, Assistant Federal Public Defend- ers, AZ, Phoenix, petitioner-appellant for Runningeagle. Sean Bernard Goddard, General; Terry Attorney Kent Cattani, Counsel, Capital Litigation Chief I. Anderson, Assistant Section; and Jon G. AZ, Phoenix, re- General, for

Attorney by the facts as recited takeWe Ryan L. et al. Charles spondents-appellees opinion, Court in its 1993 Arizona Ariz. Runningeagle, 176 State v. District States the United Appeal from (1993), affirming P.2d 169 Arizona, Paul G. District of for the Run denying conviction and sentence Rosenblatt, Judge, Presid- District Senior post-conviction re ningeagle’s petition CV-98-01903-PGR. ing. D.C. No. lief: early morning of December PREGERSON, KIM HARRY Before: Tilden, 1987, Runningeagle, and their WARDLAW, T. and CARLOS McLANE Antone, and Milford two friends Orva BEA, Judges. Circuit Runnin- driving around Phoenix. were car, for his so the geagle parts wanted WARDLAW; Partial by Judge Opinion house, stopped at the Davis foursome Judge and Partial Dissent Concurrence car outside. Run- parked which had a PREGERSON. got Tilden and Orva out of ningeagle, car, passed while Milford remained back seat. out drunk

OPINION gle large hunting used his knife to re- WARDLAW, Judge: Circuit from the Davis move two carburetors an air put scoop car. Orva them and and his Sean Bernard Runningeagle’s trunk of car. Tilden the were convicted Corey Tilden cousin jack a Runningeagle also stole floor and Jacqueline murdering Herbert and bicycle took a from and tool box. Orva they pursued the after Williams garage. open early in the into their home Williamses Williams, Jacqueline and an el- 6, Herbert December 1987. The morning of next door to the derly couple, lived a of death imposed sentence trial court came out of his Davises. Mr. Williams upon Tilden. Runningeagle, but upon young men to leave house and told the ap- collateral direct and Runningeagle’s re- police. call the Orva courts. or he would rejected by the state were peals car, Runningeagle but and turned to the appeals the district Runningeagle now Run- Mr. Williams. approached for a Tilden petition his federal court’s denial of by knife his side. concealed his ningeagle affirm the corpus. We writ of habeas large, flashlight. a black Tilden carried deny peti- court’s decision district and began then to tease Runningeagle tion. 1097, P.2d Gallegos, Ariz. 1105 drawn of facts is 1. Because this statement decision, (1994)). Runningeagle's contention is not Supreme Court’s the Arizona from supported by any federal case law—and presumption of correctness we afford it event, equivalent is convincing any the Arizona standard only by may clear and be rebutted sufficiency 2254(e)(1); of the evidence to the standard for Moses 28 U.S.C. evidence. See See, (9th apply on habeas review. federal courts 746 n. 1 Cir. Payne, 555 F.3d v. Virginia, e.g., v. 2009). argues against pre Jackson Runningeagle this (1979) (“[T]he repeated 61 L.Ed.2d citing courts’ sumption, the Arizona whether, viewing question after relevant in crimi its recitation of facts statements light favorable to the most presents “in evidence in opinions the facts appellate nal any fact could prosecution, rational trier of sustaining ver light most favorable Dann, of the crime See, elements have found the essential e.g., 205 Ariz. State dict.” doubt."). (2003) beyond (citing a reasonable State v. 236 n. 1 74 P.3d arrested, scare Mr. Williams with the knife. Mr. When defendants were found, police among things, retreated and told other Williams air away. scoop Runningeagle’s knife Davis with gle put Mrs. it, carburetors, prints on two the tool Williams then came out of the house and box, Mrs. Williams’ wallet and yelled college at them. Tilden confronted Mrs. pin, large black Williams, her, flashlight with Tilden’s argued hit with and then it, prints bicycle and the Davis with her on the side of the head with the Runningeagle’s prints on the rim. wheel flashlight. Mr. Williams told them to A Department Phoenix Police alone, criminalist helped leave his wife and her back matched shoes with the into the house. broke bloody prints shoe at the found Williams through door with a tire Williams’ house, and also found that an inked iron, barged and he and Tilden in. print of pattern Tilden’s shoes made a neighbor, The noise awakened a who similar to prints other shoe at the house. heard Mrs. crying Williams and the Tilden, Runningeagle, and Orva Antone tall, “bring spoken by words him in” were indicted on two counts of first de- young man standing he saw in the murder, gree and one count each of first carport. neighbor Williams The called residence, degree burglary of a second “911,” arrived, but police the time the degree burglary residence, aof third Mr. and Mrs. Williams were dead. Mr. car, degree burglary prop- theft of injuries Williams suffered several head erty $1000, valued between $500 wounds, and five stab three of which theft of property valued between $250 fatal. were Mrs. Williams also suffered Orva pleaded guilty Antone $500. injuries, several head one of which frac- to burglary and testified for the state at fatal, tured her skull and was possibly joint trial. wounds, addition to four stab three of Runningeagle, which were fatal. 859 P.2d at 171-72. trial, After a police five-week searched the Williams home. and Tilden were July The drawer in which convicted on Mrs. Williams was jewelry open guilty stored her was found and some two jewelry degree murder, counts of first missing. They two found an theft, empty counts of and one count purse, drops blood each of first and two degree bloody burglary, degree second print patterns. They burglary, shoe dis- and degree burglary. covered third Runningeagle’s palm print Id. at 171. Tilden was dryer the clothes convicted of the same charges next to the bodies. except degree for third burglary. Id. Af- Runningeagle discussed the crimes on joint ter several sentencing hearings, Run- several occasions before his arrest. He ningeagle was sentenced to death on the told girlfriend that he had been in a murder prison convictions and to terms on fight people with two and had hit them non-capital convictions. Id. Tilden was “full-force.” He showed her his car sentenced to life terms on the murder trunk full of the stolen property. He charges prison terms, and to additional showed the scoop hood and carburetors served consecutively, be on the remaining Tilden, too, to another friend. spoke counts. Id. about the crimes and informed Runnin- geagle that an burglary account of the procedural history The appeal of this was on the radio and that “they got both lengthy complicated by and the many there an hour after we left.” claims asserted in the pro- numerous state petition the amended dismissed However, court ac- Court the district ceedings. pre- it finding prejudice, back- without procedural forth curately set unexhausted exhausted and sented both replow no need and we see ground, concluding that it was claims and ground: same post-conviction rem- clear whether state appeal direct [Runningeagle’s] While remained available. edies filed, se, a Petition pro he pending pursu- Meanwhile, initiated his third [PCR] Relief Petitioner PosWConviction for Arizona Rules of court. His proceeding ant to Rule 32 PCR ultimately The Arizona Su- raised for- petition Procedure. third PCR Criminal jurisdiction summarily court ty revested claims. The PCR preme Court The trial Petitioner petition. to resolve PCR. trial court dismissed counsel, who filed rehearing, for which was denied. appointed court moved Sup- a Second in the sought PCR and review Arizona Supplemental Petitioner Court, trial court sum- Supreme The which also was denied. plemental PCR. relief. Pe- postconviction marily denied the instant action Petitioner commenced rehearing, which also moved for titioner by moving appointment of counsel. sought then re- Petitioner was denied. counsel and Peti- appointed The Court Supreme Court. in the Arizona view an Amended Petition for tioner filed granted re- Supreme Court The Arizona Corpus. Respondents of Habeas Writ Petitioner’s PCR view and consolidated procedur- an Answer limited to the filed appeal claims. with his direct claims claims. al status of Petitioner’s affirmed Supreme Arizona Court of Petition- procedural While the status and sentences convictions Petitioner’s advisement, under er’s claims was relief. Peti- postconviction and denied Appeals issued Ninth Circuit Court reconsideration, which moved for tioner (9th Stewart, 241 F.3d 1191 Smith v. was denied. Cir.2001), calling question into Arizona’s Petitioner, se, moved the Arizona pro procedural doctrine of default. This discharge his counsel Supreme Court ruling proce- deferred its on the Court pro supreme se. The proceed pend- claims dural status of Petitioner’s withdraw counsel’s motion to granted The Unit- ing further review Smith. pro- motion to granted Petitioner’s Supreme Court reversed. ed States A writ of certiorari pro pro ceed se. se Contemporaneously, was filed denied. Arizona, 536 Ring decided v. U.S. Thereafter, Supreme Arizona Court (2002), 556] 153 L.Ed.2d [122 and filed in the trial its mandate issued penalty found Arizona’s death which on Petitioner’s a Notice of PCR sentencing scheme unconstitutional be- allowed Petition- The trial court behalf. juries judges rather than deter- cause pro se. Peti- proceed er to continue to the factual existence of the statu- mined comply with the deadline tioner did not circumstances tory aggravating and the filing petition, for a second PCR eligible a defendant rendered summarily dismissed trial court response, Petitioner penalty. death In post-conviction proceedings. stay of these moved this Court for re- so that he could Next, proceedings habeas pro petition filed a se Petitioner pursue post- turn to state court corpus in Dis- [the for writ of habeas upon Ring. The relief based appointed coun- conviction The Court trict] Court. stay respect with granted the sel, petition. The who filed an amended sentencing Petitioner’s claims but An application denied for a writ of habeas cor- stay request Petitioner’s his convic- pus person on behalf of a custody in tion-related claims. pursuant judgment to the of a State Order, Subsequently, granted in an court shall not be respect interim with any claim procedural adjudicated Court ruled on the that was on [District] status of Petitioner’s conviction-related merits State court proceedings unless adjudication claims. the United States Su- of the claim— preme that Ring Court held does not (1) resulted in a decision that was con- apply retroactively. Thereafter [the to, trary or involved an unreasonable stay Court vacated its of the District] of, application clearly established Feder- claims, sentencing-related issued Or- law, al determined status, der resolving procedural their States; Court of the United or briefing. and ordered merits (2) resulted in a decision that was based 27, 2007, On November the district court on an unreasonable determination of the Runningeagle’s remaining denied claims in light facts presented merits, on the and concluded that Runnin- in the proceeding. State court geagle was not entitled evidentiary de- 2254(d). 28 U.S.C. Federal habeas re- velopment any claim. The district may granted lief not be subject for claims court also appeala- denied certificate of 2254(d) §to “unless it is shown that the bility, concluding jurists that “reasonable earlier state court’s decision contrary ‘was applying the standard of review set forth to’ federal law then clearly established in [its decision] could not debate its resolu- Court; the holdings Supreme] of [the tion of the merits” of that it ‘involved an applica- unreasonable claims. appealed, and on law; tion of such or that it ‘was based on 24, 2009, February a Ninth judge, Circuit an unreasonable determination of the facts’ citing “the low standard for granting a in light of the record before the state appealability,” certificate of certified five — Richter, court.” Harrington v. appeal. issues for Runningeagle then filed -, 131 S.Ct. 178 L.Ed.2d 624 timely brief, opening addressing four of (2011)(citations omitted). those five certified issues. III.

II. We review the district court’s de Runningeagle argues that prosecutors nial of petition the habeas de novo and its withheld evidence from obtained Manuel findings of fact for clear Melendez, error. Thompson Tilden’s, former cell-mate of Runnel, (9th v. Cir. violation of Brady Maryland, 2010). Runningeagle filed his amended U.S. 10 L.Ed.2d 215 petition (1963). after the effective date of the Anti- Relying on Melendez’s testimony terrorism and Effective Death Penalty Act at a in a hearing criminal separate prose- (AEDPA). of 1996 Accordingly, provi cution against Melendez and note Run- sions of AEDPA govern ningeagle’s consideration of lawyer first habeas reportedly AEDPA, his claims. Under file,2 in found the state’s criminal Runnin- 19, 2006, Wesendorf, July Kyle 2. On reading Marie an "TILDEN THE KILLER” in the crim- attorney Runningeagle's who worked on first inal file Maricopa County maintained petition, signed stating habeas Attorney’s affidavit Office. asked the early unsigned that in 1995 she found an note expand district court to the record to include counsel, 20, 1988, April filed a on may have fense that Melendez maintains geagle determine counsel” to ascertain “motion to committed that Tilden prosecutors told from required he was to withdraw cannot whether alone. murders conflict given of Tilden representation can he Brady claim because out a make public defenders that arose Melendez, is between the who as to what only speculate discussions with from inmate Melendez’s deceased, and so prosecutors, told now attorney Tilden’s prosecutors. Tilden’s any withheld evi- that cannot demonstrate Runningeagle’s upon the motion or mate- served have favorable would been dence recounted papers counsel. The motion of this Arizona courts’ denial rial. The prosecutors investigating had been not an unreasonable was therefore claim in- knowledge “had whether Melendez contrary clearly to estab- of or application 2254(d)(1). concerning allegations § formation 28 U.S.C. lished law. See in a ... would be

against [Tilden] [and] Further, A. testify....” the trial position to Melendez’s criminal case judge assigned to Runningeagle’s relevant The facts had ordered Melendez’s outside counsel to Runningeagle, Brady claim are as follows: representation over Melendez’s take Tilden, were arrested and Orva Antone office. public out the defender’s screen trial, awaiting 1987. While December However, had Tilden’s counsel been subse- by the Mari- Tilden, represented who was prosecution no quently informed Office, was Defender’s County Public copa Melendez at Til- longer intended to call Melendez, who in a cell with housed judge trial ruled that trial. The den’s public defender’s by both represented was no conflict of interest because there Through his outside counsel. office and to call had decided not prosecution defender, communicated Melendez public a witness. Melendez as the murders of about prosecutors with Williams, and of- Jacqueline and Herbert subsequently entered into a Melendez exchange plea testify fered case, but, following agreement his plea After own criminal case. his agreement convictions, and Tilden’s with Melendez re- spoken had prosecutors plea. At a guilty to withdraw his moved however, agreed to testi- Antone peatedly, motion, 29, 1988, Me- July hearing on this co-defendants, prosecu- fy against his infor- gained that he had lendez testified they did not need Melendez that tors told from Tilden and mation about the murders testimony. during that information that he had shared homicide detectives meetings three with potential was a wit- Melendez Because However, nev- Melendez repre- prosecutors. and both were against Tilden ness precisely as to what informa- the same er testified counsel from by different sented him or what office, had shared with de- tion Tilden public Tilden’s public defender’s claim, argues affidavit, separate Brady but for a presented to basis which was never refused, might support Melen The district court it his claim about the state courts. 2254(e)(2). where, here, Apart However, § from the citing 28 U.S.C. dez's statements. note, existed, evidentiary if it concerns —the adjudicated a claim on the state courts unsigned ambiguous, and is linked merits, 2254(d)(1) under 28 U.S.C. review specula- only by Wesendorf’s prosecutors the record that was before "is limited to it not relevant because tion —the affidavit is - Pinholster, court.'' Cullen courts. Run- presented to the state was not -, 179 L.Ed.2d 557 ningeagle that the note is not itself concedes (2011). material, comprise the Brady and so does not prosecutors. information he shared with prevents default the state court from April In around reaching claim, the time Antone the merits of a federal agreed testify, prosecutors stopped ordinarily claim can not be reviewed court.”). meeting with Melendez. Melendez testi- federal fied that “it specifically expressed was ruling on Runningeagle’s third by prosecution me and homicide detec- PCR, Superior the Arizona Court found they tives that wanted to make the three Brady “precluded claim pur was people they any didn’t want one of them — suant to [Arizona Rule of Criminal Proce any turn person” over on one and that 32.2(a)(3),” precludes dure] which relief “they wanted to convict all three of the any ground based on that “has been charges.” trial, waived at on appeal, any or in previ Although prosecutors told Tilden’s attor- proceeding.” ous collateral While this rul neys Melendez, about their meetings with ing clearly was procedural on default they directly never informed grounds, procedural “[s]tate bars are not gle’s they counsel and provided never Run- immortal ... may expire [and] because of ningeagle any with information about what by Ylst, later actions state courts.” Melendez said. Runningeagle’s attorney Ruling S.Ct. 2590. a copy received of the motion to determine Runningeagle’s subsequent request for Therefore, counsel from Tilden. Runnin- clarification, the court did not adhere to its geagle’s counsel was on notice that Melen- procedural-default ruling, but instead stat dez had been communicating with the Brady ed that the claim satisfy did not prosecutors and a potential was witness requirements of Arizona Rule of Criminal against However, Tilden. he did not in- 32.1(e). 32.1(e) Procedure provides Rule vestigate further contacting or inter- grounds post-conviction for relief if “[n]ew viewing Melendez or attempting to obtain ly discovered material probably facts exist any Brady material specifically regarding and such facts probably would have Melendez from the prosecu- detectives and changed the verdict or sentence.” Facts tors. “newly are discovered” and “material” if: (1) (2) they trial; were discovered after

B. defendant diligence exercised due in secur matter, As an (3) initial them; we must deter ing they “are not merely mine whether the Arizona courts denied solely cumulative or used impeach merits, this claim on the ment, instead deter impeachment unless the mined that claim procedurally de substantially testimony undermines which faulted under state law because Runnin was of critical significance at trial such geagle failed to it raise until his third state the evidence probably would have PCR. We review a denial on the changed merits the verdict or the sentence.” under AEDPA to 32.1(e). determine it whether Ariz. R.Crim. P. The court then was an application unreasonable clearly summarily “pursuant dismissed the claim Richter, established federal law. See 131 to [Arizona Rule of Criminal Procedure] However, S.Ct. at 785. 32.6(c),” we would not be requires which courts considering able to review the state court’s postconviction conclusion relief petitions to first that this claim procedurally “identify defaulted all claims that procedurally are under Arizona law. See Ylst v. precluded rule,” Nunne then, under this “af maker, claims,” ter identifying precluded all dis (1991) (“When 115 L.Ed.2d 706 a state-law any petition miss if the court “determines

769 accused, favorable to the a materi- issue must be presents remaining claim that no or because exculpatory, either because it is would entitle fact or law which al issue impeaching; it that evidence must have is under this rule to relief the defendant State, suppressed by the either will been any by served would be purpose no that inadvertently; must fully prejudice or proceedings.” further Greene, v. 527 have ensued.” Strickler are am decisions The state court 1936, 263, 281-82, 144 119 S.Ct. U.S. Arizona and so whether biguous, (1999). observed, As we have L.Ed.2d 286 is a on the merits claim courts denied this are ‘prejudicial’ terms ‘material’ and “[t]he Superior Arizona question. close Brady cases.” interchangeably used relying pro on the initial dismissal Court’s Lambert, 1040, 1053 n. 9 Benn v. 32.2(a)(3) was rule of Rule cedural default (9th Cir.2002) (“Evidence not ‘material’ is Rule relying on by holding followed ‘prejudicial,’ ‘prejudi unless it is and not 32.1(e), procedural- functions as which Thus, for Bra cial’ unless it is ‘material.’ rule, which also addresses default but two have come to dy purposes, the terms after of facts discovered relevant merits meaning.”). have the same Evidence is summarily dismissed court then trial. The “when there is a Brady material under 32.6, addresses Rule which the claim under that, had the evi probability reasonable defaulted procedurally that are claims both disclosed, dence been the result on the claims that do not succeed would have been different.” proceeding aof rely “presumption on the merits. We Bell, 449, 1769, 129 Cone v. 556 U.S. S.Ct. it is unclear when merits determination (2009) (citing 701 173 L.Ed.2d Unit appearing to rest whether a decision 105 Bagley, ed States v. U.S. decided on another grounds was federal (1985)). 3375, L.Ed.2d 481 S.Ct. Richter, (citing at 784-85 basis.” 131 S.Ct. Thus, Runningeagle must demonstrate Reed, v. 489 U.S. Harris fa- that Melendez’s statements were both (1989)). Ac 1038, 103 L.Ed.2d 308 Strickler, vorable and material. 527 U.S. the Arizona presume we cordingly, 281-82, However, 1936. at 119 S.Ct. claim on the denied this Superior Court claim, Brady required he is to do merits, to deter and review that denial what “merely speculate” more than about unreasonably court mine whether the state v. prosecutors. Melendez told See Wood federal law.3 applied clearly established Bartholomew, 1, 6, 8, Id. (1995) (“[W]here, this 133 L.Ed.2d case, grants ... appellate a federal C. little more relief on the basis of habeas slight support, with speculation than Brady, the feder- prose proper delicate balance between suppression that “[t]he held upset to a to an accused al courts and the States of evidence favorable cution correction.”); also degree requires see process due where request violates upon 1085, 1099 Fleming, F.3d guilt either to or Barker the evidence is material (9th Cir.2005) (“The possibility mere good irrespective of punishment, might information 373 an item of undisclosed prosecution.” faith or faith of the bad defense, might have helped violations have Brady at S.Ct. 1194. trial, does not affected the outcome of the “The evidence components: have three in the the remedies available deny Brady the merits to exhaust mayWe claim on 2254(b)(2). 28 U.S.C. applicant courts of the State.” "notwithstanding failure of the ‘materiality’ in the While we can infer that Melendez would establish constitutional sense.”) Croft, (quoting Tilden, United States v. way we of implicated have have no (9th Cir.1997)); 1109, 1124 124 F.3d testimony excul knowing that his would (9th Hoyt, Downs v. F.3d pate Runningeagle even if Melen —and Cir.2000) Brady part claim in (rejecting testimony exculpate, dez’s did tend to such petitioner’s arguments because the were informant, testimony by jailhouse a noto speculative); States v. Abonce- United source, riously unlikely was to unreliable Cir.2001) (9th Barrera, outcome changed proceed have the of the (finding that was not evidence material or, ings, particularly, during at either trial under the had Brady where defendant Cone, sentencing by judge. the See only “a hunch” the be evidence would Trott, 1783; Stephen S.Ct. at Hon. S. useful). Warning Using Words Prosecutors of that Tilden While evidence alone Witnesses, 47 L.J. Hastings Criminals as killed the Williamses would have been fa (1996) (discussing perils 1383-85 the material, ultimately vorable and Runnin testimony at trial witness from criminals geagle’s claim pointed that Melendez the say any likely who “are to and do almost finger on solely only at Tilden is based thing get they want, especially what speculation. transcript The of Melendez’s they when want get what is to out of hearing request on his his withdraw law”). trouble with the The evidence guilty plea only that provided shows he against Runningeagle was substantial: prosecutors with information obtained police Runningeagle’s palm print found Tilden, from the government and that de next to dryer clothes the victims’ bod Antone, clined to use him as witness once ies and matched shoes co-defendant, turned on the other two prints with the shoe bloody found at the defendants. As acknowl house. Runningeagle, 859 P.2d at 171-72. brief, edges in “it reply his remains diffi Runningeagle discussed the crimes several cult ... develop exact contours times girl before his arrest and told his Brady claim because State has still trial, friend —who testified and to whom never any provid disclosed evidence he ” showed his car trunk full of proper ed attempting Melendez.... ty stolen from Williamses—that “he demonstrate that Melendez’s statements fight had been in a with people two favorable, admissible, were even Run ” had hit them ‘full-force.’ Id. When ningeagle resorts to therefore inference police Runningeagle, they arrested found and supposition. To demonstrate that Me property. Williamses’ stolen Id. lendez’s would have been excul statements An stronger light evidence is even patory, for example, argues tone’s testimony Runningeagle taunt that prosecutors not would have met with ed and threatened the Williamses with repeatedly Melendez if the statements knife, they waved the knife at them as were useless. if Runningeagle Even retreated, then through broke correct that Melendez’s statements were valuable, however, Williamses’ with a tire Runningeagle still can door iron after not prove actually get what Melendez away. said. Williamses tried to Id.4 There claim, Runningeagle argues weighing vouching that in This which the Arizona evidence, disregard defaulted, we should Antone’s testi- procedurally court found mony, prosecutor’s because the statement us. appeal, certified for so is not before during opening testify that Antone would 2253(c)(1). Accordingly, See 28 U.S.C. truthfully vouching. improper constituted cannot demonstrate that Melen upon geagle sufficient more than or use exculpatory fact could have dez’s statements were trier of a rational which guilty of that there is a Runningeagle impeachment, was ful for or that concluded that Melendez’s that Melendez’s Assuming probability had the murders. reasonable Tilden, disclosed, those state outcome of implicated statements been statements the evidence have added to have sentencing would trial or of the would ments conviction, ma and not Runningeagle Tilden’s supporting different. Because been overwhelming claim, from the terially Brady detracted a the state cannot make out guilt. Runningeagle’s evidence of claim not an un court’s denial of his clearly application of estab reasonable The failure of Strickler, law. See lished federal receiving investigate after to counsel 281-82, 119 1936. S.Ct. motion for determination of Tilden’s copy the existence learning about counsel and D. willing testify to who was of an informant have been both may well against Tilden if to Even we were conduct de said, That Run prejudicial. deficient and claim, Brady of the limited to novo review make a claim of ineffec ningeagle does not not sentencing phase,5 agree we could on his of counsel based tive assistance this record that “there is reasonable investigate after attorney’s not to decision that, had the evidence been probability motion, so we do not consid receiving that disclosed, proceeding the result of the However, we note that the er this claim. Cone, have been different.” would obligation independent has government Bag (citing at 1783 United States v. exists, if it Brady material provide ley, 473 U.S. all request make a for counsel did trial (1985)). L.Ed.2d 481 point long in a material. At this Brady Assuming the existence of a however, as counsel for history, procedural that file” that contains evidence “Melendez concedes, it cannot be Runningeagle Til- prepared testify that Melendez was impeaching exculpatory whether known Williamses, trial den stabbed exists, it ever existed. or whether material Special makes court’s detailed Verdict only speculate as to Runningeagle can As likely incul- that the result of further Runnin- clear prosecutors, told what Melendez 32.1(e), denied the claim on that disregard Rule us to Antone's there is no reason for testimony. ground. Runningeagle’s had contem- counsel poten- poraneous that was a notice Melendez dissent, agrees Pregerson, that Judge in his against tial witness Tilden from motion Runningeagle's guilt was the evidence of Therefore, "the Govern- determine counsel. sentencing, overwhelming. regard to he With Brady not commit a violation d[id] ment Superior ap- argues that the Arizona bringing the evidence to the attention of materiality plied standard to the an erroneous Ylst, Raley defense.” Brady and that the habeas denial claim omitted). Cir.2006) (9th (quotation Melendez contrary clearly federal established thus available at that time and Run- was alive and Judge Pregerson’s respect With for law. have, through the exercise of ningeagle could however, views, required to use a we are diligence, an interview or minimal secured evaluating for "highly standard deferential Any post-trial facts testimony from him. rulings, demands that state- which state-court "newly here are thus not discovered” averred given be the benefit court decisions 32.1; therefore, regardless Pinholster, under Rule S.Ct. at 1398. The doubt.” standard, materiality under correctness of found that no mate- Arizona court could have law, Brady claim lacked merit. "newly Arizona discovered” under rial facts were pation physical pain” of Tilden was death sentence horrific “mental and before deaths, “Runningeagle Tilden and not a life sentence for Runnin- their first knife,” geagle.6 sentencing judge assumed taunted both victims with his equally laughed they that Tilden and were “both defendants came murders, responsible for the but distin- killing back to the car” after guished Tilden’s character individual and Williamses propensity Runningeagle’s, finding “bragged girlfriend from to his having about ” Third, that Tilden had mitigating ‘good fight.’ more factors been she found lighter his favor. The sentence meted out that multiple the offense involved homi- solely to Tilden was not based on Runnin- cides. geagle’s Nothing role as the stabber. that Tilden, judge only As to found two said Melendez could have blunted the First, found, aggravating factors. she for overwhelming that Runningeagle evidence Runningeagle, same reasons stated for stabbing, possessed did the that he cruel, that especially the murders were goods stolen and that he undeserving depraved heinous and and that “the force mitigation. The dissent’s view that it elderly used to beat these two small people

may have been Tilden who did the stab- gratuitous.” was senseless and She noted bing has no basis in the evidence. that Tilden did not relish the murders to degree the same Runningeagle, who “on judge The conducted individual sen- two occasions good made reference to a determination, tencing mitigat- considered Second, fight.” she found that the offense ing factors and findings “set forth her However, multiple involved homicides. separately as to each defendant.” As to judge specifically found that the State Runningeagle, she aggrava- found three prove failed to that sought pecuni- Tilden First, ting factors. she that found ary gain from the crimes because the conduct before and after the crimes items stolen from the Williamses were “clearly showed that he atwas the location only found in Runningeagle’s car and bed- rob; expected pecuniary he gain.” Sec- room. ond, she that found the murders were especially cruel, heinous and depraved for The judge also addressed the mitigating reasons, including numerous defendants, the fact that for factors each of the finding the victims both suffered “significant tremendous and and considerable differences” argument, 6. At oral when asked clearly exculpatory about the must disclose evidence file,” "Melendez the Warden’s counsel indi that comes to its attention after a trial has [one], cated that "I assume there must be I concluded.”). beyond Ethical duties those through have no idea.... I’ve never looked imposed by Brady and the Due Process Clause the Melendez file.” Counsel also stated that may compel prosecutors also to disclose ex- was, "we don't know what the material we culpatory any they evidence at time become Brady don’t know if there was a violation.” Pachtman, aware it.of See Imbler v. 424 U.S. After a criminal conviction is final on direct 984, 427 n. 96 S.Ct. 47 L.Ed.2d 128 appeal, prosecutors duty have no further un (1976) ("[A]fter prosecutor a conviction the is Brady produce exculpatory der evidence to also bound the ethics of his office to in- Attorney's defendant. Dist. v. Os Office appropriate authority form the of after-ac- borne, quired or other information that casts doubt (2009). However, L.Ed.2d 38 the Arizona conviction.”). upon the correctness of the postconvic held that has Therefore, if a "Melendez file” exists and con- proceedings, continuing tion the State has a evidence, exculpatory tains the State duty produce is ethi- Brady material in its files. Cole, it, cally required produce See Canion v. whether or not a 210 Ariz. 115 P.3d (2005) ("[W]e evidentiary hearing affirm that the State further held. is significantly, Most sympathy.” morse and “characters, pro- backgrounds in their comparison judge noted that her the trial Runningeagle’s that found She pensities.” defendants’ circumstances in his of the two factor only mitigating age was aggrava- ... served “not characteristics to call favor, one “sufficient not but sentence,” only but that tion of explained judge leniency.” Therefore, if of Tilden’s. mitigation it is presented, on the “based used to testimony had been intel- Melendez’s highly is a [Runningeagle] clear responsibility, Tilden’s man, aggravate much the further that he was ligent young sentencing is only outcome of Tilden’s leader, of events that occurred initiator There is have been different. family likely to found that his evening.” She that, had probability not thus no “reasonable history health were and mental history disclosed, evidence been factors, [hypothetical] Runnin- explaining mitigating [sentencing] would have the result of the reality, [and] in touch with geagle “is [mitigating] been different.” any type suffering from disease.” mental disorder E. contrast, that Til- judge found

In family problems history and age den’s claim, Brady this pursuing She factors in his favor. mitigating were at various times asked Runningeagle has defendant that “unlike found discovery, expansion of the for additional and has a conscience Tilden gle, defendant court, and an before the district record sympathy.” and ability to feel remorse what Me evidentiary hearing to determine “per- Tilden’s Runningeagle, unlike Also The district prosecutors. said to lendez treatable, capable he is sonality disorder under 28 requests those court denied found that judge The rehabilitation.” 2254(e)(2) concluding that § after U.S.C. lead, both Runningeagle’s followed Tilden to exercise due dili Runningeagle failed in the parts car and initial theft of in the the facts before the developing gence murders. and subsequent confrontation renews those state courts. the lack of judge discussed Finally, the the district court argues requests any of that “Tilden inflicted any evidence develop to sought he in fact erred because wounds.” horrendous stab by the state pre-vented the record but Regardless of doing from so. Til- courts addressing judge, trial before diligently, acted circumstances, that whether stated mitigating den’s however, to he was entitled or of whether people two as this where a case such “[i]n court, he is not entitled hearing in state of the same brutal convicted have been hearing or additional dis evidentiary impose murders, natural to want it is his claim is in federal court because sentence, covery re- the same imposing the same 2254(d)(1). As by 28 U.S.C. governed that her explained then She sponsibility.” held, recently re has Supreme sentence impose death decision limited to the rec claims “is view of such by “signifi- was warranted upon Tilden the state court that was before in ord differences” considerable cant and the merits.” Pin adjudicated the claim on characters, pro- backgrounds and “their holster, if the at 1398. Even Run- noted that defendant She pensities.” claim denied this courts had not Arizona independent two found ningeagle was merits, the claim but had found on the lacking a conscience as psychologists law, under defaulted procedurally “Tilden whereas extremely dangerous; ato not be entitled Runningeagle would conscience, re- ability to feel had hearing, because the state court’s decision “that the expected present- to be would not be renewable in federal court. ed at drastically trial is not ‘so dispropor- Ylst, See 501 U.S. at 111 S.Ct. 2590. tionate nor do the appear defenses to be so Accordingly, deny antagonistic,’ if Runningeagle’s antagonistic, we re- at all to re- quire quest. severance.” July On attorney Tilden’s re- IV. sever, newed his motion to explaining that his cross-examination “go right would Next, back Runningeagle argues that his trial through, detail, only more every item attorney rendered ineffective assistance of every found,” taken and item it where was by failing join counsel Tilden’s motion to “effectively and so prosecutor assist[ ] sever their trials. The Arizona against my co-defendant case.” Court concluded that trial counsel was not Runningeagle’s attorney again po- took no deficient, because the two defendants did sition on the motion. The trial court de- not assert mutually antagonistic defenses. motion, nied the renewed reasoning, “I As clearly there is no established federal don’t think it’s a situation you where would law requiring severance of criminal trials have to disbelieve one defense to believe in state court even when the defendants you the other. I think could believe both mutually antagonistic defenses, assert or disbelieve both.” Tilden’s and defenses were not in fact mutually exclusive or an Denying Runningeagle’s petition for tagonistic, the Arizona Supreme Court’s relief, post-conviction the Arizona Supreme holding was not an applica unreasonable rejected Court Runningeagle’s ineffective tion of the standard in established Strick assistance claim after concluding that the 668, land v. Washington, 688, 104 co-defendants’ defenses “were antago- not (1984). 80 L.Ed.2d 674 point nistic to the being mutually of exclu- Runningeagle, sive.” 859 P.2d at 173. A. Because severance required, was not trial counsel’s “failure to position take a on the 22, 1988, April On Tilden’s counsel filed motion to sever was not deficient.” Id. (1) severance, motion for arguing that: Addressing Tilden’s contention that might evidence be introduced that would trial motion, court erred denying the against be admissible one defendant but the court explained: further (2) against another; Tilden would be Tilden’s “alibi prejudiced by non-presence” of the “much defense stronger” scienti- antagonistic is not physical fic and to Runningeagle’s evidence demonstrating (3) “insufficiency of that state’s guilty; was evidence” de- co-defendants’ defenses were “antagonis- fense. In State v. Cruz, 137 Ariz. ^[541] tic, irreconcilable mutually exclusive to at 672 P.2d ^[470] at 474 [ (1983) ], this court an extent held that: that order to believe the core of the evidence offered on behalf of [Til- defendant seeking severance based den], jury must disbelieve the core of the antagonistic defenses must demon- evidence offered on behalf of [Runningea- strate that his or her defense is so gle].” May At a hearing, Runnin- antagonistic to the co-defendants that geagle’s attorney told the judge that he the defenses mutually are exclusive. join motion, did not Moreover, no “take[s] mutually defenses are ex- position 3, 1988, to sever.” On June clusive within the meaning of this rule trial court denied the motion after finding if jury, order to believe the core 2254(d), § pivotal tance claims under “[t]he offered on behalf of of the evidence appli- the state court’s defendant, question whether must disbelieve the one standard un- cation Strickland offered on behalf core of evidence from asking reasonable. This is different of co-defendant. performance whether counsel’s fell defense States, 506 U.S. See v. United Zafiro standard.” Id. at 785. below Strickland’s 933, 122 L.Ed.2d 113 S.Ct. (1993) mutually antagonis- (holding that maintains that se). prejudicial per are not tic defenses correctly the Arizona iden Supreme guilty he was not Tilden claimed that controlling legal precedent by tified morning on the at home because he was unreasonably Zafiro, applied citing but Runningeagle argued murder. precedent because the co-defendants’ was insufficient that the state’s mutually in fact defenses were exclusive. unre- him. The defenses are to convict however, “can Runningeagle, satisfy the have jury could believed lated. The application’ prong ‘unreasonable both, other, one, or neither. 2254(d)(1) showing only by ‘there denying the motion not err did no basis’ for the reasonable [state] Pinholster, to sever. Supreme Court’s decision.” at 131 S.Ct. 1402. The Court has P.2d at 178-79. Runningeagle, 859 rejected rule explicitly per requiring se B. present two defendants severance where mutually defenses. See antagonistic assis establish ineffective To Zafi ro, 538-39, 113 S.Ct. U.S. counsel, show “a defendant must tance Moreover, supports record Arizona by counsel and performance both deficient Supreme Court’s conclusion the de Mirzayance, prejudice.” Knowles mutually antagonis fenses were not in fact 173 L.Ed.2d n tic. (2009). per establish deficient To formance, that Runningeagle must show agrees with Arizona Runningeagle fell an below representation his “counsel’s Supreme characterization of the Court’s objective of reasonableness.” standard he was not guilty defenses: Tilden claimed Strickland, 688, at 104 alibi, 466 U.S. because he an and had he must prejudice, To establish demon that evidence was insuf- claimed the state’s that, Runningeagle, “a P.2d probability but ficient to convict. 859 strate reasonable errors, that his arguing re at 178-79. client unprofessional When for counsel’s time asleep at at the of the was home would have been proceeding sult murders, however, attorney high- Tilden’s a probability A is different. reasonable lighted against Runningea- the evidence to confi probability undermine sufficient so, argues, gle 694, in Id. at 104 dence the outcome.” effec- —and antagonistic defense. tively mounted an “Surmounting Strickland’s S.Ct. 2052. During example, his Tilden’s opening, task,” v. easy Padilla high bar is never — counsel stated: -, 1473, Kentucky, 130 S.Ct. U.S. (2010), Running especially Eagle.7 in I Mr. represent 176 284 don’t L.Ed.2d Richter, my guilt And or innocence does 131 S.Ct. client’s petition.

a habeas See As upon guilt not rest or innocence. addressing assis- at 778. In ineffective "Running Eagle.” misspelled Runningea- reporter 7. The court transcript trial as gle’s throughout the name you through my opening by point can see state- to sever the co-defendants’ trials ment, him I have used as a control for two ing to decisions in which the my may ad- greater client. We become has or Court addressed when whether fed state) throughout (rather here, process, than, versaries this but eral criminal as joint it’s not a defense. trials co-defendants should or must be Lane, Tilden, severed. United represent Corey I Sean Run- States 446 n. I am to 106 S.Ct. ning Eagle. going And show (1986), you that the State doesn’t the evi- L.Ed.2d the Court observed have that, with my my regard defendants, dence client. client against And federal joinder not, itself, going get up you is here that in “[i]mproper and tell does vio Rather, he that sleeping night misjoinder this home late Constitution. only And the he occurred. reason is rise to a would the level of constitutional he only here is because lived with his first prejudice violation if it in results so mother, that cousin and his and is it. great deny a defendant his Fifth only thing It’s the government right Amendment to a fair trial.” In Zafi against my has client. ro, 538-39, that, held under Federal Rule of During closing arguments, Tilden’s attor- 14(a), Criminal Procedure severance is not ney stated that his client guilty under automatically necessary where even co-de prosecution’s theory “because he asso- present fendants mutually antagonistic de ciates human-being by with a the name of fenses, “[m]utually because antagonistic Running Eagle.” Sean He argued all prejudicial per defenses are not se.” A physical evidence linked murders, grant court should gle severance under Rule pointed to the it none of “only if there is a serious risk that a Tilden: joint trial would compromise specific tri They nothing, gentle- have ladies defendants, right al of one of pre or men, physical [from terms jury making vent from reliable judg They at the scene. Tilden] have Sean’s guilt ment about Zafiro, innocence.” outside, kitchen, print on the 538-39, 113 atU.S. S.Ct. 933. room, utility and on the door. Inter- esting comparison. If guilt this be- is problems are There two critical with yond doubt, gen- reasonable ladies Runningeagle’s argument. The first is tlemen, what this? Reasonable that, if he even is correct the codefen doubt? Lack of sufficient evidence to presented dants mutually antagonistic de prove my guilty? client fenses, we have explicitly concluded that attorney repeatedly compared Tilden’s and Lane do not “establish consti Zafiro against the evidence Tilden the to evidence binding tutional standard on the states and “[Ljet’s against Runningeagle: compare requiring severance cases where defen Running Eagle, Sean Corey Tilden. [The present mutually antagonistic dants de prosecutor] up you has stood and told here Runnels, fenses.” Collins v. guilt that he case of beyond has a a rea- (9th 1127, 1131 Cir.2010). In reaching that against Running sonable doubt Sean Ea- we holding, found that the statement gle. is, question The real he says does he misjoinder regarding Lane when rises to Corey have one against Tilden? So it the level of constitutional violation was dic comparison.” works a nice ta binding is not on the Zafiro

Runningeagle attempts support to his state courts it because addresses the Fed argument required that the trial court was eral Rules of Procedure. Criminal Id. at

777 being to him if he were tried “clearly applies is es- decision Neither 1131-33. sup- (citing Zafiro, at 506 to alone.” Id. 178 U.S. law” sufficient tablished Federal 933). 540-41,113 Id. at challenge under 2254. S.Ct. a habeas port problem with The second moreover, Runningeagle, does not Su- argument is that the Arizona gle’s the Arizona court’s conclusion challenge correctly that Runnin- found preme Court required, that where severance not were not Tilden’s defenses geagle’s and position against taking counsel’s choice As antagonistic. the Court mutually fact severance motion is not deficient concluded, jury could have believed 859 performance. Runningeagle, See P.2d and Runnin- argument alibi both Tilden’s at The Arizona Court’s de 173. argu- insufficiency the evidence geagle’s attorney’s that Runningeagle’s termination was he was ment. Tilden’s defense not performance was not deficient was unr innocent; rested Runningeagle’s defense easonable.9 failed meet theory that state to on the proof. Runningeagle, its burden of See V. highlight- That Tilden P.2d at 178-79. 859 also his asserts ineffec evidence as to paucity the state’s ed of counsel for failure to by focusing physical on the tive assistance guilt nothing separate sentencing hearing. to He Runningeagle does seek implicating joint sentencing argues proceed As was that the change jury explicit- fact. this instructed, Runnin arguments ings emphasize of counsel are allowed Tilden ly own, Moreover, which any juror geagle’s guilt confu- relative his not evidence.8 making prevented the trial court from trial court’s instruc- sion was cured sentencing re is entitled individualized determination tion that defendant “[e]ach quired in a case. Zant v. capital as to each of See Ste his or innocence guilt have 862, 879,103 phens, charged determined from U.S. the crimes (1983).10 record, which L.Ed.2d 235 howev- and from the evidence own conduct Runningeagle’s opening counsel’s choice jury instructed: "In the whether 8. The Strickland, lawyers client. See closing arguments prejudiced his statements you evi- S.Ct. 2052. the law and have talked about lawyers said is not evidence dence. What parties disagree as to whether this may help you to the law and 10. The but it understand defaulted; procedurally district claim the evidence.” not, it was and denied it on court found that procedural attorney merits. We review default Runningeagle’s later told trial See, rulings by e.g., investigator attempted district de novo. he to sev- had Kernan, (9th Crosse F.3d case because he believed La er Cir.2001). Runningeagle argu attorney acting raised this were that he and Tilden’s supplemental petition Runningeagle argues that belief ment in his first this team. relief, post-conviction but the trial court to render his attor- was so unreasonable as However, it the issue of performance attor- declined to address because ney's deficient. appeal. pending making then on neys in severance was have "wide latitude” must Thereafter, Strickland, clearly Runningeagle did not raise 466 U.S. "tactical decisions." See courts; 689, Moreover, argument the if before state the even the at S.Ct. 2052. 104 Supreme explicitly ad poor strategic Court did not Runningeagle’s counsel made a Arizona However, choice, not the issue. we need deter performance was still not defi- dress cient, procedurally claim required. whether this was not mine severance because defaulted, by it was the Supreme because addressed Arizona we find that the Because briefed, fully court has been and holding deficiency un- district and as to was not Court’s reasonable, may exercise discretion un- question of we therefore our we need reach the not er, attorney, right demonstrates that Tilden’s “The to effective assistance of in fact attacking Runningeagle, instead just to applies guilt of counsel the evidence, presented that mitigating and equal but phase, penalty ‘with force at the ” court imposed the trial individualized sen- phase capital of a bifurcated trial.’ Silva and con- explicitly separately tences after (9th Woodford, 825, v. 279 F.3d 836 Cir. mitigating the sidering aggravating 2002) Lewis, (quoting v. 64 Clabourne F.3d for and each against defendant. 1373, (9th Cir.1995)). Again, 1378 to es court reviewed claim The district this de counsel, tablish ineffective assistance “a Supreme novo the Arizona because defendant must show both per deficient merits, to resolve it the leaving failed by prejudice.” formance counsel and no court to which defer. state decision to Knowles, 129 at The crux entirely It is not clear whether we should Runningeagle’s deficiency argument is that suit, follow or instead conduct the more attorney an effective recog would have Compare deferential AEDPA review. nized that joint sentencing proceeding (“When Richter, 131 S.Ct. at 784-85 prejudice.11 could result in See Strick claim presented federal has been to state land, 688, 466 at 104 S.Ct. 2052 relief, court the state court has denied (“[T]he performance inquiry must be it be that may presumed the court state whether counsel’s assistance was reason adjudicated the claim on the merits circumstances.”). all considering able of any pro- absence indication or state-law principles contrary.”), cedural to the with Ordinarily, defendants have no (9th 1160, Morgan, Pirtle v. F.3d constitutional statutory right to sepa Cir.2002) (federal courts review properly rate sentencing proceedings. Instead, raised claims that were not decided “[g]iven imposition that of death by novo), state courts on the merits de with public authority profoundly is so different Castro, Murdoch v. 609 F.3d 991 n. 6 all penalties,” from other (9th Cir.2010) (“Even when there no Court has held that the defendants have a opinion explaining reasoned right to “an individualized decision ... denial any defendant’s claim in re- Ohio, capital cases.” Lockett v. 438 U.S. spect, we ‘must assume the state 586, 605, 98 S.Ct. 57 L.Ed.2d 973 court has all the ‘per- decided issues and (1978). This means “that the sentencing independent form an review of the record decision [must] be based on the facts and to ascertain whether the state court deci- ’ defendant, circumstances of his back ”) objectively sion (quot- reasonable.’ ground, and his crime.” Giurbino, Clemons Mis ing Reynoso v. (9th sissippi, Cir.2006)). We need not decide (1990). Runningeagle this 108 L.Ed.2d 725 question on the convoluted ar procedural here, however, that, history gues because the claim because Tilden was able ar fails under either standard. gue was the more cul- 2254(b)(2) deny der U.S.C. appeal claim and are thus not before us. For merits, “notwithstanding on the the failure of example, Runningeagle argues that his coun- applicant exhaust remedies avail- failing sel was ineffective for raise certain able courts of State.” See also arguments sentencing, suggests (9th Madding, Gatlin v. Cir.1999). F.3d Eighth trial court violated his Amendment rights by provide failing to an individualized sentence. Runningeagle also and raises conflates nu- other which merous claims were not certified carefully Special a jointly sentencing held issued reasoned Verdict pable party the Runningeagle did not receive proceedings, separately Runningeagle’s that addressed determination, sentencing an individualized background. That court pre- conduct and violated his hence the trial court and over the trial of the case and heard sided rights. Eighth Amendment evidence, sentencing held all of hear- and took additional evidence ings, argument Runningeagle’s relies family form of letters from the victims’ and sentencing on mischaracterization of a friends, family letters from defendants’ it is that Tilden’s proceedings. While true friends, letters from and attorney only Runningeagle that suggested himself, psychological three reports from wounds, the stabbing be linked to could separate psychologists, three the State and pres strategy on the whole was to Tilden’s memoranda, and sentencing defense mitigation ent his own evidence rather Thus, by Report Pre-Sentence the Probation Runningeagle. con Of- than to blame contentions, Til- granted, to Had severance been trary fice. there as a “second counsel did not act den’s trial no indication that the court would during prosecutor” of sen any considered different have accurately court tencing. As district any other reached decision.

recounted: Moreover, sentencing fully court was presented the sentencing, Tilden tes- At of to responsibility impose aware its indi- Tatro, timony psychologist of Donald sentencing At the vidualized sentences. from opined that Tilden suffered who hearings, “very the trial court stated it but not an antiso- personality disorder requirement mindful of the constitutional personality Following disorder.... cial individually to and to individualize deter- testimony, presented Dr. Tilden Tatro’s sentencings,” noting mine all that this was family who a number of and friends particularly capital After true cases. family about his difficult back- testified sentencing Runningeagle turning and to complete his ground, his efforts to edu- Tilden, again the court mentioned that it

cation, opinion and their cir- was “mindful need individualize out of the crime were of cumstances thereafter, Shortly the sentences.” declin- During closing argu- character for him. Tilden, upon ing impose death the court ment, argued age eigh- Tilden — it had been “reminded over factor, observed statutory mitigating teen —was circumstances, by death it penalty and over cases” mitigating and that other family background, his difficult that it “bound and man- including had reviewed disorder, family, of personality love and by justice dated our Constitution and doubt about how much Tilden lingering and to individualize sentences consider murders, participated in called for a only take into account the circum- and not During closing argu- lenient sentence. offense, stances of the but the character ment, mitiga- on his own Tilden focused of each propensities of offenders.” tion; [Runningeagle] did not attack he required The court added that “this promi- by arguing that he had the more only comparison the actions de- in the nent role crimes. defendant, gree participation each but characters, comparison of their back- Moreover, attorney even had Tilden’s grounds, propensities. making this on Runnin- sought place all the blame significant I comparison find and consider- he not denied an individualized geagle, was differences.” sentencing determination. trial able hearing transcripts Eagle Both the Running and the Defendant as intelli- Special Verdict demonstrate that the trial gent, younger charismatic leader that court understood the different of levels cousin Defendant Tilden followed. of, culpability separately and considered Addressing a similar ineffective assis- aggravating mitigating and evidence by claim an tance Indiana defendant who for, each The court defendant. trial found argued that his counsel should have moved Runningeagle the lead in played role proceedings, for severed sentencing incapable the murders and was of feelings Seventh Circuit found that was there no may such remorse. dis- where, prejudice despite the peti- habeas agree findings, with these having but “contentions, tioner’s is there no evidence separate sentencing proceeding would not in a separate proceeding, the ... Moreover, have changed them. the court judge aggrava- would have balanced the great pains explain why took she im- ting mitigating differently.” factors only imprisonment posed sentence life Anderson, Rastafari Tilden, upon instead the death sentence (7th Cir.2002). We agree ap- with this imposed upon Runningeagle. Noting that proach, similarly find that there no “significant there were and considerable evidence that sentencing court would characters, in differences” back- have the aggravating balanced and miti- grounds, and propensities of the two de- gating differently factors had the defen- fendants, trial court stated that it had been dants afforded separate sentencing “not used these in aggravating differences proceedings. against Running circumstances Defendant Eagle, but have in only used them consid- VI. ering mitigating circumstances” rele- Runningeagle argues that the Ari vant to Tilden. judge further ex- zona Court unreasonably reject plained the differing they played roles ed his claim that statements made the murders: prosecution right violated pro his to due The Court must degree consider the statement, cess. In opening prose participation by Defendant Tilden in cutor declared: these brutal murders. There is no What happened the next doubt that Defendant Tilden acted bru- minutes [after began tally in strength the manner and with stealing pieces of only car] can be which Williams, he struck Mrs. unspeakable described as horror. It there is also no doubt that he struck Mr. evil. was What happened that next However, Williams. there is no evi- 10, 15, 20 minutes everything ended for dence to indicate Defendant Tilden in- Jackie and Herbert Williams. And the any flicted of the horrendous stab cause and the reason that it ended is All presented wounds. of the evidence right here in the courtroom. The evil is pointed to Running Defendant Eagle among us. knife, who owned the survival whose Runningeagle, 859

palmprint laundry was found in P.2d at 173-74. Run- room bloody ningeagle objected statements, above the bodies. It to these the Defendant and the trial Running Eagle objection, who initi- sustained the ated cruising, but Runningeagle’s subsequent involved in the denied mo- removal of the scoop and the tion for a petition carbure- mistrial. Id. In his Mr. relief, tors when post-conviction Williams first confronted Runningeagle ar- the defendants. The points gued “an ap- these statements were "Improper argument not, peal passion prejudice," does and that he Denying per Se, was entitled to a new triaL Id. violate a defendant's constitutional Runningeagle's petition, rights." Woodford, the Arizona Su- Fields v. 309 F.3d preme prosecu- 1095, (9th Cir.2002) (quoting Thomp Court held that while the argument, Borg, 1571, (9th tor's words constituted and thus son v. 74 F.3d Cir. objectionable, argument 1996)). enough prose were "[I]t is not that the "merely a characterization of the evidence" cutors' remarks were undesirable or even appeal passion preju- rather than an universally condemned." Darden v. Wain that, dice. Id. contends wright, 168, 181, 2464, 106 S.Ct. contrary Supreme to the Arizona Court's (1986) (internal quotation 91 L.Ed.2d 144 conclusion, these comments were directed omitted). Rather, "{t]he marks relevant toward his character rather than to the na- question prosecutors' is whether the com crimes, ture of the and therefore infected ments `so infected the trial with unfairness unfairness, jury his trial with as the heard resulting as to make the conviction a deni hearing these comments before the evi- process.'" (quoting Donnelly, al of due Id. dence. 1868). 416 U.S. at 94 S.Ct. In Dar Runningeagle might well be correct den, during closing, prosecutor re import prosecutor's about the true "animal," ferred to Darden as an and said Don~nelly comments. But see v. DeC/iris- that he should not be allowed out of a cell toforo, 416 U.s. 94 S.Ct. 40 unless he was on a leash and that he (1974) ("[A] L.Ed.2d 431 court should not "sitting wished that he could see Darden lightly prosecutor infer that a intends an face, away by here with no blown a shot ambiguous remark to have its most dam- gun." Id. at 181-83 nn. 11 & 106 S.Ct. aging meaning jury, sitting or that a Nevertheless, the Court found that through lengthy exhortation, will draw improper deprive these statements did not meaning plethora from the of less trial, part Darden of a fair because of damaging interpretations."). Even if the against Darden, the substantial evidence unreasonably Arizona and because the trial court instructed the prosecutor's viewed all of the comments as jury arguments by characterizations of the evidence rather that the made counsel 181-83, defendants, were not evidence. See id. at than characterizations of the 2464; Donnelly, however, prevail see also 416 U.S. at on habeas review un- (finding improp Richter, Runningeagle 94 S.Ct. 1868 that an der must demon- prosecutor during any "arguments er statement clos strate that or theories supported" ing argument [that] could have the state did not amount to a due decision-here, process part judge court's ultimate its deter- violation in because the prosecutor's jury mination that the remarks did instructed the that the remark was Runningeagle's process evidence); Woodford, not violate due Allen v. right (9th Cir.2005) (finding prose to a fair trial-would have been an application clearly unreasonable estab- cutorial misconduct did not amount to a Richter, lished federal law. See process due violation where the trial court at 786. Because the trial court sustained gave attorneys' an instruction that Runningeagle's objection repeatedly statements were not evidence and where jury attorneys' instructed the that the ar- prosecutors presented substantial evi guments evidence, were not and because guilt). dence of the defendant's weight against of the evidence Runnin- judge geagle substantial, Runningeagle The trial sustained can- gle's objection improper not do so. to the statements. Darden, Donnelly PREGERSON, Just as in Judge, and more- Circuit over, repeatedly the trial court instructed concurring in part and in dissenting part: the nature of jury regarding the the attor- “A rule ... declaring ‘prosecutor may neys’ Both before arguments. opening hide, seek,’ defendant must not tena- trial, and after close of the statements system ble in constitutionally bound to jurors court instructed that what accord process.” defendants due attorneys opening said in was not evi- Dretke, Banks v. 668, 696, 540 U.S. 124 dence, they should decide case 1256, 157 (2004). S.Ct. L.Ed.2d 1166 evidence, only they and that on the should influenced sympathy preju- not be or In early morning hours of December Darden, as in Again dice. 477 6,1987, Phoenix, Arizona, in teenagers two 181-83, 2464, committed horrible and senseless crime. substantial, against Runningeagle was and Petitioner Sean Bernard Runningeagle included, among things, palm other his codefendant, Tilden, Corey and his bur- print on the dryer clothes next to the glarized the Jacque- home Herbert and bodies and Williamses’ his own statements line Williams. Jacqueline Herbert and about the crimes. Runningeagle, P.2d 859 present Williams were at the time of the at 171-72. The Arizona Supreme Court’s and, burglary, in the course of the burgla- determination prosecutor’s com- ry, one of these teenagers two stabbed and ments, while improper, did amount to a killed the Williamses. violation, process due was therefore not an application clearly unreasonable estab- Runningeagle and Tilden were tried to- lished federal law. 28 See U.S.C. in gether Maricopa County Superior 2254(d). § That Supreme the Arizona Court. Both were convicted of two counts Donnelly Court did not to cite either degree of first murder. At the sentencing Darden, Supreme the most relevant hearing, judge the trial sentenced Tilden Richter, opinions, is immaterial. See 131 imprisonment to life but sentenced Run- (“And S.Ct. at 784 as this Court has ob- ningeagle to death.1 judge’s decision served, a state court need not cite or even spare to Tilden’s life was based primarily 2254(d).”) be aware of our cases under Packer, judge’s on the (citing Early 8, view that it was 3, Runningea- 537 U.S. 123 362, (2002) S.Ct. (per gle L.Ed.2d 263 who stabbed victims. What the curiam)). her, trial judge did not have before indeed it, no court has ever had before are

VII. the statements Tilden made about his role We therefore affirm the district court’s cellmate, to murders Manuel denial of Runningeagle’s petition habeas Melendez. police Prosecutors and spoke request for evidentiary hearing. an with Melendez times the weeks five

AFFIRMED.12 leading up trial, to Runningeagle’s but 12. We address imposed. March should be 536 U.S. motion for a limited remand of issues (2002). S.Ct. 153 L.Ed.2d In Ring, not before us in order concurrently filed procedure Court held that this opinion. with this Right violated Sixth Amendment's to a however, by Jury. Ring, Trial Id. is not retro 1. Prior the Supreme Court's decision active to cases on federal habeas review. Arizona, Ring v. judges trial in Arizona deter Summerlin, Schriro v. mitigating mined aggravating circum (2004). 159 L.Ed.2d 442 stances and decided whether a death sentence Run- proceedings, habeas potentially ex- his federal Melendez’s provided never discovery and an evi- ningeagle asked for Runningeagle. statements culpatory hearing. the state PCR dentiary Like sought this diligently has court, the district court denied more prosecutors from information requiring claim without first gle’s Brady April avail. On twenty years, no than Melendez’s state- prosecutors disclose trial, Run- months before three Runningeagle appealed then the ments.2 request- filed motion counsel ningeagle’s to court’s denial of habeas relief district “all material provide prosecutors that ing our court. or mitigate to which tends or information court, During argument before our oral to of- guilt as the [Runningeagle’s] negate government acknowledged counsel for the to which would tend charged, or fense containing File” may there a “Melendez be De- punishment therefor....” [his] reduce that, day, to this has exculpatory evidence to failed spite request, prosecution this Runningeagle. still not been disclosed to to Runnin- statements Melendez’s provide 33:40-34:01; Argument Audio at Oral geagle. attorney, government The 36:28-37:44. however, position remarkable took the review post-conviction state In his Runningeagle was not entitled to this ex- (“PCR”) Runningeagle raised proceedings, Argument culpatory information. Oral for access to Brady claim and asked 33:40-34:01; Audio 36:28-37:44. and an subpoena power for eviden- court’s finally he could obtain tiary hearing, so majority every like court to opinion, The But the state claims, statements. Melendez’s adjudicated Runningeagle’s have summarily denied court Brady PCR claim with- denies claim, requiring without first gle’s Brady prosecutors to disclose requiring out first state- to disclose Melendez’s prosecutors Maj. atOp. Melendez’s statements. 773- Ari- court based its denial on majority opinion The 74. In holding, ments. so 32.1(e), of Procedure zona Rule Criminal the state PCR court’s deni- concludes that claim, to petitioner Runningeagle’s Brady establish of without requires which al evidentiary development, facts “[n]ewly any discovery material or discovered probably an “unreasonable “contrary facts was not to” or probably exist such clearly application” sen- of established federal changed the verdict or would have 2254(d)(1). 32.1(e) Maj. § law under 28 U.S.C. (emphasis Ariz. P. tence.” R.Crim. fur- added). Op. majority opinion at 766-67. court, court, Runningeagle raised Runningeagle made the state PCR district In the requests containing discovery requested evidentiary for documents Brady an claim depart- police statements from the Melendez’s ment, hearing. asked access to PCR He also office, attorney’s county sheriff’s sup- subpoena power, and court's attached office, jail. county Runningeagle also porting to his PCR Petition. Run- documents oppor- requested afford him the that the court ningeagle’s attempts develop to the record tunity depose investigators and detectives to more than before the state PCR court were spoken with The district who had Melendez. 2254(e)(2)’s diligence satisfy re- sufficient Runningeagle’s discovery of court denied all Schriro, Stanley quirement. F.3d See v. ground requests on the Cir.2010) ("A (9th petitioner who "diligent” attempting develop in was not sought previously and been denied has court, re- claim in state the facts develop hearing evidentiary has not failed to 2254(e)(2). § quired by The district 28 U.S.C. therefore factual basis of his claim and ruling court’s was incorrect. 2254(e)(2).”); Ryan, 608 § West v. satisfies develop attempting fac- diligent Cir.2010) (9th (same). 484-85 state court. Before F.3d basis of his claim in tual that, court, ther concludes under Cullen v. Pin sentence federal strictures — holster, U.S.-, 131 S.Ct. 179 the Anti-Terrorism and Effective Death (2011), Runningeagle L.Ed.2d 557 is not (“AEDPA”) Penalty apply Act to his claim. discovery entitled Melendez’s state 2254; See 28 U.S.C. Lindh Murphy, Maj. Op. ments. at 773-74. 138 L.Ed.2d (1997). view, provides, per- The AEDPA my the state PCR court’s use of “probably part, prisoner tinent that a changed may would have verdict Brady sentence” as a standard for any ma obtain federal habeas relief for claim “contrary teriality clearly to” “adjudicated estab on the merits” a state Supreme lished Court case law. Under can unless he show that the state clearly established Court case adjudication court’s of his claim: law, the standard for materiality under in resulted a contrary decision was Brady is a whether “there is reasonable to, or an involved applica- unreasonable that, probability had the evidence been of, tion clearly law, established Federal defense, to the disclosed the result of the Supreme as determined the Court of proceeding would have been different.” the United States ... 667, v. Bagley, 682, United States 473 U.S. 3375, (1985). 105 S.Ct. 87 L.Ed.2d 481 A 2254(d)(1) added). § 28 U.S.C. (emphasis “reasonable a probability” is probability This section two independent contains sufficient undermine in confidence “contrary clauses: a to” clause an outcome, but is less than preponder application” “unreasonable clause. See more-likely-than-not ance Kyles standard. Terry 362, Taylor, Williams v. 529 U.S. Whitley, 419, 434, v. 514 U.S. 115 S.Ct. 404, 1495, 120 S.Ct. 146 L.Ed.2d 389 1555, 131 (1995). L.Ed.2d 490 (2000). A state prisoner required is not Because Runningeagle has satisfied 2254(d)(1). satisfy both clauses of Section 2254(d)(l)’s “contrary clause, § to” we Williams, Terry 404-05, 529 U.S. at 120 must Runningeagle’s review Brady claim only S.Ct. 1495. need He show that the “without the deference AEDPA otherwise state court’s decision “contrary to” requires.” Quarterman, v. Panetti 551 law, or, federal applica- “unreasonable 930, 953, 2842, 127 S.Ct. 168 L.Ed.2d tion” of federal law. Id. (2007). review, 662 Under this de novo I would remand to the district court for A. The “Contrary To” Clause discovery on Runningeagle’s sentencing- A state court’s “use wrong legal of the

phase view, Brady my claim. In Runnin- rule framework [] error constitute^] geagle has “good established cause” for 6(a) ‘contrary under to’ prong of discovery under Rule of the Rules 2254(d)(1).” § Frantz v. Governing Hazey, Cases.3 (9th Cir.2008) 724, (en banc); see also AEDPA’s FRAMEWORK Vincent, Price v. 538 U.S. (2003) Because Runningeagle prison- is a state S.Ct. 155 L.Ed.2d (holding er challenging his conviction and death that a state court is “contrary decision to” majority, defense, 3. Like I would affirm the district dence been disclosed to the the result of court’s denial [guilt-phase] habeas relief would have been differ- gle’s guilt-phase Brady claim. The evidence Bagley, ent.” United 682, v. States 473 U.S. Runningeagle's guilt overwhelming. (1985). 105 S.Ct. 87 L.Ed.2d 481 Accordingly, Runningeagle cannot majority's establish I also concur resolution that, probability "a reasonable had -Brady the evi- non claims. Terry objectively unreasonable.” law if the state was federal clearly established Williams, that contradicts a rule “applies [Supreme set forth law governing — Richter, U.S.-, v. Harrington In omitted). (internal cases.”) marks Court] (2011), 178 L.Ed.2d 624 Williams, Supreme Court Terry discussed the “un- use a following example of state court gave the application” reasonable clause when “contrary to” clear- that would be decision summary on the state court issues denial law: ly federal established that, when a explained merits. The Court certainly be court decision will A state summary on the court issues denial state clearly contrary prec to our established merits, application” the “unreasonable applies a rule if state court edent requires that: clause set governing law that contradicts federal habeas determine [A court] Take, example, our forth in cases. arguments supported what or theories Washing our decision Strickland here, or, supported, could have reject a court were to ton. If state decision; court’s then it must assistance claim of ineffective prisoner’s possible whether it is fairminded ask the pris grounds of counsel on jurists disagree that argu- could those by prepon had not established oner with ments or theories are inconsistent the result of the evidence that derance prior holding decision of this have criminal would proceeding of his Court. different, be that decision would been clearly [contrary our established Richter, to] at The Court then 131 S.Ct. that, we held in Strickland jurists because precedent if could dis- held fairminded only need demonstrate prisoner that the hypothetical arguments agree with the ... probability court, a “reasonable generated the federal habeas proceeding would have result of the summary denial will then the state court’s been different.” application” an “unreasonable of be clearly established federal law. Id. (internal 405-06, 120 1495 529 S.Ct. U.S. omitted). of a the context citations Court C. De Novo Revietv in Federal claim, that a Brady our court has held prisoner satisfy is wrong for If a state able use of the standard state court’s 2254(d)(l)’s “contrary in a to” clause or materiality will result deci Section assessing clause, clearly its “contrary application” is to” estab “unreasonable sion that Rae, Bailey v. 339 habeas court must then review federal law. See federal lished Frantz, (9th Cir.2003) (holding prisoner’s claim de novo. 1118 F.3d 735; Cooper, v. “probably court’s of a 533 F.3d at see also the state use Lafler — U.S.-, 1389-90, materiality 182 standard for 132 S.Ct. change the result” (2012) peti- (reviewing fed habeas “contrary clearly to” established L.Ed.2d 398 law). claim de tioner’s ineffective assistance eral adjudi- finding novo after that state court’s Application” B. The “Unreasonable “contrary to” clear- cation the claim was Clause law); v. ly federal Panetti established 930, 953, Quarterman, 127 S.Ct. will constitute 551 U.S. A state court’s decision (2007) that, (holding clearly 168 L.Ed.2d application of estab- unreasonable set forth ap- requirement law if the “state court’s when lished federal 2254(d)(1) satisfied, is federal court “[a] law plication clearly federal established must resolve the claim without the defense, then dence been disclosed AEDPA requires”). deference otherwise result of the proceeding would have been different.” United v. Bagley, States mind, With AEDPA’s framework 667, 682, L.Ed.2d an understanding with that this framework (1985). A probability” “reasonable ais limit designed and restrict a federal probability sufficient to undermine confi ability court’s to issue the Great Writ in outcome, dence in the but is less than the originating criminal matters in state preponderance more-likely-than-not stan courts, it to consider whether Run- is time Kyles Whitley, dard. ningeagle discovery on entitled 1555, 131 (1995); 115 S.Ct. L.Ed.2d 490 see Brady claim. Bagley,

also 473 U.S. at DISCUSSION 3375. This probability” “reasonable stan dard was not the employed by standard I. The PCR Court’s State Denial of the state PCR court. Runningeagle’s Brady Claim Was “Contrary Clearly To” Established The state PCR denied Federal Law Because the State PCR claim, gle Brady relief on his well as Applied Wrong Standard further evidentiary on development Assessing Materiality Under Bra- claim, Brady based Arizona Rule dy 32.1(e). 32.1(e) Criminal Procedure Rule 2254(d)(l)’s “contrary Under Section to” provides for “newly relief when discovered clause, a state court’s “use of wrong probably material facts exist and such legal rule or ] constitute^] er- frameworkf probably facts changed would have ” Frantz, 734; ror.... 533 F.3d at see also added). verdict or sentence.” (emphasis Price, at 538 U.S. 123 S.Ct. 1848. This standard mirrors the standard under Here, the state of court’s use the wrong Rule 33 of the Federal Rules of Criminal legal standard for assessing materiality granting Procedure for a new trial based Brady “contrary under clearly to” es- newly on discovered evidence. See United tablished federal law. (9th George, States v. 420 F.3d Cir.2005) clearly

Under Supreme established (noting that new trial under law, Court case the standard for materiali- requires Rule 33 that the new evidence ty under Brady (em- is whether “there is a probably acquittal”) “would result in that, added).4 probability reasonable phasis had the evi- majority 4. The positions takes procedural inconsistent grounds state law listed in Rule 32.1(e). whether the state PCR Maj. court reached the mer- Op. (contending at 771 n.5 that First, Runningeagle's Brady its of claim. the the state PCR court could have denied relief majority Runningeagle’s Brady 32.1(e)’s contends that procedural require- based on Rule procedurally claim is not discovered”). defaulted "newly because ment that evidence be I the state PCR court reached the agree proposition put by merits of with the first forth Runningeagle’s Brady claim majority: and denied Run- the the state PCR court ningeagle Brady materiality relief on grounds Brady reached the merits of the claim and rather procedural than on one of the state law denied the relief on merits rather than one of grounds 32.1(e). Maj. Op. listed in Rule procedural grounds the state law listed in later, however, pages 32.1(e). Where, here, 769. Several the ma- Rule as a state court jority contends that the state PCR court’s use decision is interwoven with federal law and materiality of an erroneous adequacy independence any standard was not pos- “the "contrary clearly to” ground established law federal sible state law is clear from the because the state PCR court could have de- opinion, of the [state court] face [the federal nied relief based on one of accept will court] as the most reasonable ex- court that is “con “proba- suit a state decision use of a PCR court’s The state trary clearly established federal law. to” changed the verdict would have bly (9th Rae, Bailey In v. Cir. mate- determining standard for sentence” 2003), court reviewed a state court contrary clearly our Brady riality under Brady claim where the state law. The denial of case Supreme Court established to show the required petitioner and court explained has time Supreme Court prob suppressed such as materiality evidence “be will the test for again that time if a trial is ably change the result new than the stan- Brady is less onerous under added) (emphasis at 1118 granted.” Rule Id. obtaining a new trial under dard omitted). (internal In quotation marks Rules of Proce- Federal Criminal 33 of the court finding that the state decision was Agurs, 427 U.S. In United States dure. (1976), clearly Supreme “contrary to” established L.Ed.2d 342 that, law, explained our case that: under Bra- Court Supreme Court held dy: by the steep The hurdle set state court to satis- should not have defendant

[T]he materiality contrary runs test demonstrating fy the severe burden by set that has been out probably newly discovered evidence Bagley, explained Court. If acquittal. have resulted would if that evidence material there is motion for applied to usual standard probability” “reasonable that a different newly discovered trial based on a new had the outcome would have occurred when the evi- were same disclosed, meaning evidence been possession in the dence was State’s “probability was a sufficient to there source, ain neutral when it was found confidence in the outcome.” undermine significance no special there would be Court, standard, arriving at the prosecutor’s obligation serve distinguishing point the strict- made justice. cause of “newly evidence” standard er discovered type Oregon applied (em 111, 96 427 U.S. at Agurs, court. added). Bagley, also phasis See (“The 680-81, 105 standard of S.Ct. 3375 at omitted). (internal Here, as Id. citations of a

materiality applicable in the absence steep the state Bailey, in hurdle set Brady stricter request is therefore specific clearly “contrary to” es- court runs PCR harmless-error standard but than the Terry federal law. See also tablished than the new lenient to more defense 405-06, Williams, 120 529 U.S. at S.Ct. (em standard.”) ly-discovered-evidence a use of the (noting 1495 that state court’s added). phasis un- wrong assessing prejudice in standard example would be an of a der Strickland previously has held that Our “contrary clearly estab- decision to” wrong standard for state court’s use of the state law).5 Supreme Court case materiality Brady under will re- lished assessing Supreme Richter The Court’s decision in the case 5. planation the state court decided "contrary analysis under the does not affect way it believed that federal it did because 2254(d)(1). §of Richter concerned to” clause Powell, required it to so.” Florida v. law do 2254(d)(l)'s application” § “unreasonable 1201-02, 1195, -, 175 -U.S. 130 S.Ct. clause, "contrary See to” clause. (internal (2010) quotation 1009 L.Ed.2d Richter, (“The ap- 785 court of 131 S.Ct. at omitted) Michigan Long, (quoting marks improp- lengthy opinion peals [ ] discloses 1040-41, 77 103 S.Ct. 2254(d)'s understanding §of unreasonable- er (1983)). 1201 L.Ed.2d added). standard....") (emphasis ness requires.” II. Because has Satis- ence AEDPA otherwise Panet 2254(d)(l)’s “Contrary 2842; fied Section 551 U.S. at see also S.Ct. ti Clause, Brady Frantz, To” 533 F.3d at 735. Subject is to De Review

Claim Novo Here, above, Runningea- as discussed Federal gle’s claim subject is de novo review prisoner Once state satisfies Section because he has satisfied Section 2254(d)(l)’s “contrary 2254(d)(l)’s to” “un- clause its “contrary to” It un- clause. clause, application” reasonable state der this de novo prison- review that a state subject claim is prisoner’s habeas to de er discovery can receive in federal court. Panetti, novo review federal court. See IY. is Entitled to Dis- 2842; Frantz, at covery Sentencing-Phase on his Here, PCR

533 F.3d at Brady Claim Runningeagle’s Brady denial of court’s “contrary clearly claim was to” established majority discovery The concludes federal law because the state PCR court potentially Melendez’s exculpatory state- applied wrong assessing standard for unnecessary ments is because there is no materiality Brady. Accordingly, under probability” “reasonable subject Runningeagle’s claim is to de novo gle would have received a life sentence had review because he has satisfied Section Melendez implicated Tilden as the stabber. 2254(d)(l)’s “contrary to” clause. Op. so, Maj. at 771. majority This is contends, likely because “the result of fur- III. Not Pinholster Does Bar Further inculpation ther of Tilden was death Evidentiary Development for Ha- sentence Tilden and not a life sentence for Subject beas Claims to De Novo for Runningeagle.” Maj. atOp.' 771-72 Review added). I (emphasis respectfully disagree majority The relies on the for following reasons. recent

Court’s decision Cullen v. Pin — holster, U.S.-, A. Majority Incorrectly Applies (2011), L.Ed.2d 557 for the proposition Ruling Standard on the for that Runningeagle is not entitled discov Merits Instead the Standard ery 6(a) Discovery in federal Maj. Op. court. Rule 773-74. Under Pinholster, however, Rules apply Governing does not Habeas Runningeagle’s Brady claim Cases because Run ningeagle’s Brady subject claim is de First, majority does not address the novo review. legal relevant standard for granting dis Pinholster, the Supreme covery held in a proceeding. Court habeas Under the that a standard, federal habeas court’s under applicable “review a petitioner habeas is 2254(d)(1) § 6(a) is limited to the record that to discovery entitled under Rule was before state court....” § 131 S.Ct. Governing “spe Rules 2254 Cases when Pinholster, however, at 1398. did not ad- allegations cific before court rea show happens dress what a peti- habeas son to believe that the petitioner may, if after tioner has overcome the fully developed, limitation the facts are be able to 2254(d)(1). Indeed, § demonstrate that he is ... entitled to re that, Terhune, has held a petitioner once has satis- lief. ...” Pham v. 2254(d)(1) (9th Cir.2005) fied federal must “[a] 743 v. (quoting Bracy Gram then 899, 908-09, resolve claim without the ley, defer- 117 S.Ct.

789 Runningeagle is (1997)). has File” “essential” for Our court dez 97 L.Ed.2d sentencing-phase “develop fully” his author- to discovery should be that held also Pham, 6(a) 400 F.3d at 743. discovery claim. See Brady [is] Rule “when under ized to de- petitioner for the habeas essential Runningeagle B. Evidence that The Pham, underlying claim.” his velop fully Not “Over- was the Stabber Was omitted); (internal marks at 743 F.3d whelming” Wood, 114 F.3d also Jones see (9th Cir.1997) discovery (authorizing Next, majority contends that Run- for the habeas discovery it was “essential” because not entitled to ningeagle is underlying “develop to petitioner “[n]othing Melendez’s statements because full/’ claim). Thus, discovery, habe- obtain to blunted the said could have that Melendez conclusively required is to as not petitioner overwhelming Runningeagle evidence that To to relief. obtain entitlement is stabbing” establish and that there “no did the only discovery, need petitioner the habeas conclude that in the evidence” to basis fully “may, if the facts are that he may Maj. show stabber. Tilden have been the he that be to demonstrate developed, majority able I agree with Op. 771-72. Pham, relief,” at to F.3d “overwhelming” is entitled evi- insofar there (internal omitted), or that dis- marks Runningeagle that and Tilden en- dence the under- develop home, to covery Runningea- is “essential” Williams’ that tered the Id. lying first-degree claim. gle and Tilden committed Runningeagle that and Til- burglary, and Here, that there is reason believe first-degree murder. guilty den were fully if the facts are Runningeagle may, disagree But that there was “overwhelm- I that he developed, be able demonstrate ing” Runningeagle, it was sentencing-phase on his to relief entitled Tilden, who stabbed the victims. and not 908-09, Bracy, Brady claim. Runningeagle was the The evidence alleged has compelling. was far from stabber withheld documents prosecution Tilden it codefendant that was Run- detailing judge’s statements trial view Tilden, to Melendez about Tilden’s role who stabbed the ningeagle, made judge’s victims, three apparently The trial decision came from items the murders. from spare co-defendant Tilden death of evidence: based, large part,

sentence was Palmprint: 1. The Runningeagle was judge’s view that trial palmprint dryer was found on inside inflicted the stab wounds. the one who home. the Williams’ Thus, im- from Melendez that statements 2. The Knife: owned Tilden as stabber would be plicated survival knife that similar large mitigating evidence crucial kill the victims. type of knife used to gle. Orva Antone’s Tes- 3. Co-Defendant timony:

Moreover, Co-Defendant Orva Antone government did acknowl- a prosecution our struck deal with the argument oral before edge during prosecution in agreed testify for the may File” that there be “Melendez exchange dismissing prosecution was for the evidence that containing exculpatory him. direct charges against murder On to the Oral turned over defense. never examination, 33:40-34:01; that he Antone testified at 36:28- Argument Audio circumstances, discovery strike Ms. Williams witnessed Tilden 37:44. In these Runnin- flashlight and observed with information the “Melen- exculpatory judge Mr. with a geagle “tease” Williams would have sentenced Tilden to Antone, however, testimony. death based knife. also testified on Melendez’s Maj. atOp. 771-72. Which is it? Was that both Tilden and en- Melendez, majority claims, as the home, opinion Williams’ that he tered the trustworthy so reliable and that the trial did see whether it was Tilden or judge would have sentenced Tilden to Runningeagle who inflicted the stab death based on Melendez’s statements? cross-examination, wounds. On Antone Melendez, majority Or was opinion as the was admitted that he intoxicated claims, also so that his unreliable testimo- murders, originally of the that he time ny could not have affected police that didn’t remember any- told he sentence? thing about the murders because he was drunk, only that he knew that C. Majority Misapplies Brady’s The police Williamses were stabbed because MateHality Standard him, detectives told and that detectives Finally, majority mischaracterizes him that Runningeagle told was the relevant inquiry determining for mate- stabber. riality Brady. majority under mistak- record, Given this statements from Melen- enly presumes that there is not a “reason- dez that Tilden as implicated the stabber able probability” a life for sentence could have enough raised doubt in the trial showing because evidence judge’s identity mind about the of the stab- that Tilden was the stabber would have ber sparing so as to warrant only resulted in death Til- sentence for gle’s life. Maj. atOp. den. 771-72. it While is sure, Melendez, Antone, To be like had certainly possible testimony implicat- credibility problems. jail- Melendez was a ing Tilden as the stabber could have re- house informant and Antone an ac- Tilden, sulted in a death sentence for it is complice in the murders. See Hon. Ste- probable reasonably also that such testi- phen Trott, S. Warning Words of for mony could have in a life resulted sentence Using Prosecutors Criminals as Wit- See, for Runningeagle. e.g., Rompilla v. nesses, 47 Hastings L.J. 1383-85 Beard, (1996) (noting that accomplices, co-conspir- (2005) 162 L.Ed.2d (“[A]lthough we ators, snitches, and informers make suppose possible it is that [the sentencer] witness). “not-so-reliable” But no there is could have it all heard and still have decid- reason think that the judge trial would penalty, ed the death is not the give greater weight testimony aof test.”). Brady’s materiality Under stan- accomplice murder who struck a deal with dard, inquiry the relevant is whether prosecution testimony than the aof “there that, is a reasonable probability had jailhouse informant. defense, the evidence been disclosed to the

Indeed, the result of proceeding would perhaps the have perplexing most as- been different.” Bagley, 473 pect U.S. at majority opinion is its inconsis- 105 S.Ct. 3375. A probability” “reasonable tent treatment of credibility. Melendez’s a probability sufficient to undermine First, that, majority opinion contends outcome, confidence but is less than had Melendez testified that Tilden was the preponderance more-likely-than-not stabber, testimony unlikely such to be Kyles, standard. 514 U.S. at jailhouse believed because a informant is a S.Ct. 1555. “notoriously Maj. unreliable source.” Op. later,

at 770. But three paragraphs Testimony from implicating Melendez majority opinion contends that the trial just Tilden as the stabber would be “lingering doubt” powerful sort of ALDERSON; B. Alder F. Connie as James described repeatedly

that we have Page; son; Page; for defen “extremely argument” Jennifer A. Walter effective sentencing phase capital Alderson; of in the dants Kristen N. Alder Justin W. 162, McCree, 476 U.S. Lockhart v. case. son, Plaintiffs-Appellants, (1986); 1758, 90 L.Ed.2d v. 883, 898 Ayers, 613 F.3d see also Cox (9th Cir.2010) (same); v. Wood Williams America, STATES of UNITED Cir.2004) (9th ford, 384 F.3d Defendant-Appellee. (same). Indeed, repeatedly relied we have of study opinions comprehensive on a No. 10-56007. conclud

jurors penalty cases that death “ of Appeals, United States Court thing capital defen ed that ‘the best Ninth Circuit. improve chances dant can do nothing has to do receiving life sentence Jan. 2012. Argued Submitted evidence.... The best mitigating with do, equal, is being he can all else thing July Filed ” Williams, guilt.’ about his raise doubt Gar (quoting Stephen P. 384 F.3d at Capi

vey, Mitigation Aggravation Think?, 98 Do Jurors

tal Cases: What (1998)). See Rev.

Colum. L. Cox, (noting signifi

also penalty-phase of defense counsel’s

cance Here, theory). statements

“non-shooter” implicated Tilden

from Melendez enough could have raised

the stabber judge’s mind about the trial

doubt to warrant

identity of the stabber so as life. At mini

sparing Runningeagle’s enough that

mum, question is close discovery

Runningeagle is entitled Pham, 400 See

Melendez’s statements.

F.3d at 743.

CONCLUSION Run- majority content resolve Brady claim sentencing-phase

ningeagle’s to dis- requiring prosecutors

without first Because I Melendez’s statements.

close to turn over prosecution require

would Runningeagle, exculpatory material to I

all dissent.

respectfully

Case Details

Case Name: Runningeagle v. Schriro

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 18, 2012

Citation: 686 F.3d 758

Docket Number: 07-99026

Court Abbreviation: 9th Cir.