*3 WALLACE, Before PARRIS and BOOCHEVER, Judges. Circuit WALLACE, Judge: Circuit appeals from the district petition court’s denial of his for writ corpus pursuant habeas to 28 U.S.C. 2254. He contends that he was denied § his sixth amendment as- effective sistance of counsel and his fourteenth process. amendment to due haveWe pursuant jurisdiction to 28 U.S.C. § and affirm.

I 36-year Leslie awas old woman who Huntington’s disease, suffered from had capacity 15-year-old, mental of a and physically gen- disabled. She received aunt, Medina, eral assistance from her day-to-day assistance from other friends. Leslie lived trailer located in a trailer park that purchasing Woratzeck was from Medina and Medina’s brother. Medina monthly made the payments rental to Wor- atzeck for February Leslie’s trailer. $2,000 Woratzeck was over behind in payments to the for Medinas the trailer park property. Medina therefore did not pay February rent for Leslie’s trailer. On March Leslie was in- killed trailer, side her and an undetermined amount of money was taken from her. The medical examiner testified that the as- sailant times, stabbed Leslie three stran- gled her, and delivered two blows her head. Leslie’s trailer was then lit on fire. grand Woratzeck was indicted Arizona, County, first-degree of Pinal felony-murder, Ariz.Rev.Stat.Ann. 13- § 1105.A.2, occupied structure, arson of an 2065; Darden 689, 104 S.Ct. at 13-1704, second-degree burglary, id. U.S. at see id. § — —, —, Wainwright, robbery, id. 13- and armed § § first-degree him of juryA convicted Hamilton, (Darden); United States v. burglary, second-degree felony-murder, (9th Cir.1986). To demon robbery, him on F.2d acquitted and armed hearing prejudice, must show strate count. arson that, probability is a to Ariz.Rev.Stat.Ann. that “there pursuant held unprofessional errors, sentenced but for counsel’s and Woratzeck was first-degree felony-murder proceeding have been result of would on the death prison probability of 11.25 A reasonable terms different. count and consecutive confi burglary probability sufficient to undermine years years 15.75 on the Strickland, in the outcome.” appeal, On dence counts. 104 S.Ct. at 2068. affirmed the convictions U.S. Supreme Court *4 Woratzeck, and sentences. See State findings are The state court’s of fact (Worat- 452, 657 P.2d 134 Ariz. 865 pursuant to deference to 28 U.S.C. entitled ). trial court Woratzeck’s zeck denied 2254(d), findings and the district court’s post-conviction relief under motion for of fact are reviewed for clear error. 32, and the Arizona Su- Ariz.R.Crim.P. Strickland, 466 at U.S. at 104 S.Ct. preme denied Woratzeck’s review. Nevertheless, the facts whether corpus of petition for a writ habeas performance demonstrate unreasonable denied, and district court was then federal prejudice questions are of law mixed brought appeal. this id., that we review de novo. fact, Birtle, States v. 847

United (9th Cir.1986); Butcher, II F.2d at 376. 758 de that he was Woratzeck contends A. right amendment to effective nied his sixth argues his attor first that his of counsel because assistance request instruc ney’s performance during trial and the a counsel’s right a claim defense to proceeding was deficient tion of as prejudicial. See Strickland v. Wash robbery or theft constituted ineffective right ington, counsel. The claim of 104 S.Ct. sistance of (1984) (Strick provides property taken 80 674 defense ownership ). right claim of land To relief for a claim of force under obtain v. Har State constitute assistance of counsel on a habe does not ineffective din, 56, 59, review, petitioner must dem 99 Ariz. 406 P.2d corpus as Flores, 469, 473, Ariz. his “made errors attorney onstrate that 1136, 1140 competent attorney (Ct.App.1984). act P.2d Worat reasonably that a right to rent ing diligent advocate zeck contends and conscientious as made, negated in must from Leslie the felonious petitioner due would not have prejudice.” Butcher v. required for a tent conviction also demonstrate (9th it burglary. The state contends that F.2d 375-76 Cir. Marquez, Strickland), (Butcher) (citing see right questionable whether the claim 1985) see (9th Arizona, applies in Stagner, defense still Miller v. F.2d 13-1902.A, 13-1802.A.1, respects, F.2d Cir.), Rev.Stat.Ann. amended §§ — Lewis, 13-1801.A.12; State v. Cir.1985), 121 Ariz. cf. (1986). 155, (Ct.App. 589 P.2d 31-32 —, 1978) (criticizing right defense to claim of performance of counsel’s Our review indulge charge robbery); never we “must that Woratzeck highly deferential: presented he took the any conduct evidence that strong presumption counsel’s right; and that the range money under a claim falls within the wide ap- not have professional right 466 claim of defense would assistance.” deferential____ plied to case highly this because took ance must be owed, money than was because the fair attorney performance assessment of amount unliquidated, due was see requires every State v. effort be made to Bonser, 128 Ariz. distorting eliminate the effects of hind- (Ct.App.1981), and because Woratzeck sight, to reconstruct the circumstances had a claim of to rent from perspective of counsel’s at the time.” Medina. U.S., S.Ct., particular, “a indulge court must We decide need not whether claim of strong presumption that counsel’s con- presently exists under Arizo- duct falls within range the wide of rea- apply na it law or whether would to these assistance; professional is, sonable trial, Throughout facts. the defendant pre- must overcome the maintained that he did not take money that, sumption circumstances, under the from Leslie and that he never entered her challenged ‘might action be con- day trailer on she was killed. He in- ” Ibid., sound strategy.’ sidered attorney formed it his would have Louisiana, quoting Michel v. impossible been for him to have robbed and 91, 100-101, killed very Leslie because at the time she L.Ed. 83 killed burglarizing robbed and he was — Darden, at —, Nursery. gave Three G’s He never S.Ct. at 2474. attorney competent Reasonably reason to think that he de- counsel could have *5 rely exclusively sired to on elected to than his an alibi de any event, alibi defense. “The fense. reasonableness of defense counsel need may recognize counsel’s actions be infallible or be determined ev or raise ery possible substantially influenced the basis for defense. Engle defendant’s See Isaac, Strickland, 107, 133-34, own or v. 456 statements actions.” U.S. 1574-75, 691, 1558, 466 (1982); U.S. at 71 783 at 2066. It is Unit apparent McAdams, right 1407, that a claim ed States v. instruction (9th Cir.1985). would have been inconsistent with Worat- zeck’s defense. alibi Woratzeck’s counsel We conclude that the failure of Worat- required was not to request jury a instruc- request zeck’s counsel to right claim of tion that was inconsistent his trial jury response instruction in govern- to the theory. Butcher, F.2d See at 377. theory ment’s of the did case not fall out- range responsible side the wide profes- contends, however, Woratzeck sional into question assistance nor call counsel did not make a tactical decision not fundamental fairness of the state court instruction, jury to ask for the see Strick Strickland, proceeding. See at land, 104 S.Ct. at 2065 689-90, 2065-66, 104 S.Ct. at (there is a “wide counsel latitude must making have in decisions”), tactical B. rather was unaware of the claim of defense. It not clear us from the Woratzeck next contends that he record attorney whether Woratzeck’s was was denied effective assistance of counsel unaware of the defense. attorney spe His attorney request because his failed that cifically stated that too much time had be instructed crime of gone by to “why remember decisions were theft is a lesser included offense of armed made” request specific jury not to instruc Celaya, See State v. 135 Ariz. circumstances, tions. Under these we be 660 P.2d 852-53 Supreme lieve the Court has outlined the (Celaya). defendant entitled to a proper context within we which review this lesser included offense instruction under issue: if suggests law evidence recognized

As Strickland, distinguishes which great element “[¿judicial scrutiny perform- of counsel’s from er offense the lesser offense is 131 Ariz. C. Malloy, v. dispute. See State P.2d 319-20 also contends that Woratzeck his counsel Dugan, 125 State during number of errors committed 772-73 see also United P.2d sentencing proceeding that to in- amounted Johnson, F.2d States assistance of counsel. Under Ari- effective Cir.1980) (instruction proper greater if law, impose the trial court “shall zona disputed find fac- of death if the court or requires jury to sentence finds one offense aggravating of the circumstances for includ- required lesser tual element not there miti- enumerated ... and that are no offense). element armed ed An sufficiently gating circumstances substan- re- distinguishes it from theft is the leniency.” tial to call for Ariz.Rev.Stat. or used force be threatened quirement that judge The trial Ann. 13-703.E. found § prevent resist- property to obtain aggravating two circumstances: commis- Compare 13- ance. Ariz.Rev.Stat.Ann. § pecuniary gain of the sion offense for 13- 13-1902.A & 1802.A.1 with id. § § in an especially commission the offense cruel, heinous, manner. See no contends there was 13-703.F.4, judge The trial id. .6. found evidence that conclusive direct mitigating weighed circumstances Leslie was inflicted in the force used kill aggravating against the factors. taking of the money, course argues if that even his coun- to a includ- therefore entitled lesser request failure to a claim of sel’s As the offense instruction theft. ed trial did instruction not amount held, requires Arizona law district counsel, to ineffective assistance of giving included offense instruction a lesser right theory to raise the claim by the supported when evidence. sentencing proceeding that the show 852; Celaya, 135 Ariz. at P.2d at gain pecuniary murder was did fall Govorko, Ariz.App. range pro- “the wide outside (1975). Here, assistance.” fessional *6 supported infer- the concedes that evidence 689, 104 at S.Ct. at U.S. taking he the mon- ence that used force his counsel’s to also contends that any elaboration, asserts, sentencing proceeding ey, argue the but without at heinous, of not cru- murder Leslie was inference could also have the contrary that the el, as- constituted ineffective unpersuaded that a drawn. areWe been sistance of counsel. have inferred from could Woratzeck committed the evidence that to a claim of ineffec- In order establish event, In any not Wor- theft but counsel, a defendant assistance of tive defense. to on his alibi atzeck elected perform- not that counsel’s must show deficient, as mat- counsel testified that a tactical also that the defi- His ance prejudicial performance con- to the ter, arguing included offense cient a lesser 687, 104 id. at S.Ct. at defense. See have diluted the alibi cerning might theft necessary to determine is not “whether It credibility. in a loss and resulted of performance was deficient before counsel’s accepted the properly The district examining by the prejudice the suffered requesting that not Arizona court’s alleged the defi- as result of defendant The de- strategy. trial the instruction was 697, 104 S.Ct. at 2069. Id. at ciencies.” of- to a lesser included request cision falls within the wide fense instruction whether fail We first consider professional represen- range of reasonable counsel raise ure Woratzeck’s Consequently, sentencing we conclude tation. at the theory argument prejudice. support does not Worat- Section proceeding this resulted sentence he effective states that a of death claim that was denied 13-703.E zeck’s imposed if one or shall be counsel. assistance aggravating Although enumerated circumstances is he could not remember the re- present. Contrary argu- sponses to Woratzeck’s everyone contacted, that he he brief, argue ment his did his counsel at did recall two of the individuals stated sentencing proceeding that Leslie was they would have had perju- to commit heinous, cruel, in a murdered de- ry in say anything good order about praved manner. Woratzeck. We conclude that Woratzeck’s counsel inquiry conducted a sufficient into therefore, is, if question one of two mitigating potential value of the wit- aggravating circumstances is sustained and testimony nesses’ and that his decision not other, arguendo, not, and there are to call the sentencing pro- witnesses at the circumstances, no mitigating resentenc ceeding is entitled deference as a strate- law, ing required? Under it is not. choice. gic 466 U.S. Supreme has The Arizona held that 690-91, 104 S.Ct. at 2066. Based on the its aggravating “elimination some us, record before we do not find this deci- mitigating factors in the absence of circum sion unreasonable. stances not mandate remand to does State v. resentencing.” trial court further contends Smith, 146 Ariz. counsel’s failure at the hearing McCall, 139 Ariz. report concerning introduce doctor’s (1983), P.2d n. 934 n. degree night of his intoxication murdered, Leslie was to contend that Wor- Florida, Barclay L.Ed.2d 375 cf. cooperated police, atzeck with the and to 3433- argue that a doubt remained (1983) (Stevens, J., guilt constituted ineffective assistance of (“Under concurring judgment) in the Flor counsel. law, statutory ida if are mitigating there no Although report the doctor’s con circumstances, one statutory aggra valid cerning Woratzeck’s level of intoxication vating generally circumstance will suffice presented was not mitigating as evidence uphold appeal a death sentence on even sentencing proceeding, the trial if aggravating circumstances are not judge report. had earlier read the Further valid. The Federal requires Constitution more, report itself more, contained least evidence long as as none of the position. contradicted Woratzeck’s aggravating sup invalid circumstances ported misleading told doctor he remembered erroneous or informa tion.”) (footnotes omitted). everything night did on the the mur der. The doctor did not believe there was a judge mitigat- Because the found no thought pro serious interference with his *7 ing factors, that Woratzeck cess due to intake of alcohol. We are not heinous, cruel, murdered Leslie a or de- proba convinced that there is a reasonable praved manner was impose sufficient to bility that the outcome would have been Therefore, penalty. the death there was no different counsel’s failure to intro showing prejudice, per- even if counsel’s report during duce the doctor’s the sentenc formance were considered deficient in fail- ing proceeding. See 466 U.S. ing argue right the claim theory. 694, Similarly, at 2068. S.Ct. we do Woratzeck next contends argue conclude that counsel’s failure counsel’s the testimony introduce cooperated police Woratzeck with the of family mitigating and friends as a factor prejudice. resulted in sentencing hearing at the constituted inef argument fective of counsel. assistance Woratzeck’s Woratzeck’s gave counsel argued testified Woratzeck him counsel should have doubt about guilt a mitigating list of individuals who could have testi is as a circumstance con fied proceeding, trary at the and that to Arizona law. Once an individual guilty all but one of the a beyond contacted individuals. has been found B. longer rele doubt, guilt is no doubt about mitigating cir is not a therefore vant and argument that the tri Woratzeck’s Carriger, v. See State cumstance. jury to instruct on judge’s failure al (1984), 991, 142, 162, 692 P.2d Ariz. second-degree included offenses of lesser denied, 105 S.Ct. cert. process due murder and theft violated Schad, v. (1985); noncapital equally unpersuasive. a 85 L.Ed.2d case, (1981), have stated that the of a 557, 573, 382-83 “[f]ailure 633 P.2d Ariz. on lesser offense state court to instruct 983, 102 S.Ct. denied, 455 U.S. present a federal constitutional fails (1982). 71 L.Ed.2d in a question and not be considered will corpus proceeding.” James federal habeas Ill Cir.1976) Reese, (9th v. 546 F.2d however, curiam). process, Due re (per judge’s that the trial contends in quires that a lesser included offense sponte on a jury sua instruct the failure to given capital to a offense be when struction on the lesser right defense and claim of such an instruction. the evidence warrants theft and second-de- defenses of included Evans, 605, 611, Hopper 456 U.S. denial of due resulted gree murder 2049, 2052, 102 S.Ct. process. Alabama, 447 U.S. 625, 637-38, 100 Beck v. L.Ed.2d 392 (Beck). A. first contends lie failure to instruct judge’s The trial included offense was entitled to a lesser is not a claim of defense jury on a second-degree murder. on jury instruction corpus relief “unless for habeas basis however, law, second-de Under fundamentally the trial so error rendered not a lesser included of gree murder Shepherd deny process.” due as to unfair Ari See State v. felony-murder. fense Nelson, Cir. 432 F.2d as, curiam). enough 1970) (per It is (1982). protec The constitutional 1287-88 “undesir instructions were the contested withdrawing prohibits the state “from tion erroneous, able, ‘universally con or even option from lesser included offense] [the ” Cupp Naughten, 414 U.S. demned.’ Beck, capital jury in a case.” 38 L.Ed.2d As there was 100 S.Ct. at 2390. Risley, see Bashor v. withdraw, de was not option to 1228, 1239 (9th Cir.) {Bashor), cert. judge’s failure process by the trial nied due 83 L.Ed.2d jury sponte sua to instruct second-degree murder. argument that the tri Woratzeck’s requested that Woratzeck never failing to instruct the judge erred al nor given, be instruction is a lesser includ concerning theft —which judge any reason believe gave the robbery ed offense —when he intended to underlying felonies for as one of the served sponte A sua other than his alibi defense. conviction, persuasive. felony-murder *8 judge on a claim of by the trial instruction Stearns, 707 States v. United Cf . inconsistent have been right defense would Cir.1983) (9th (permitting fel 393 F.2d theory. Conse Woratzeck’s defense defendant ony-murder prosecution where give a judge’s failure to

quently, the trial tried and convicted for had earlier been sponte sua did instruction related to same included offense lesser violation. process transaction, observing defendant amount to a due that not Butcher, Bashor, 377; again under punished F.2d for tne F.2d at 730 could be felony-murder), if convicted of lying theft at 1240. jury The guilty 464 U.S. 104 S.Ct. found Woratzeck felo- (1984). We need not decide 79 L.Ed.2d ny-murder, required which finding that issue, however, if even the this because during Leslie murdered the course of given, should have been theft instruction in the furtherance of either the rob- to do judge’s the failure so would not bery burglary. or the if Even we assume changed the outcome. have jury the found the murder oc- during curred in the course of and the judge jury the The trial instructed felony-murder, robbery it furtherance of convict had the to convict Wor- attempted or to find that he committed felony-murder, atzeck of it is clear that the burglary robbery or and that he commit course of the robbery necessarily armed in in the course of and the killed Leslie factually encompassed within the course of or furtherance of the crime immediate burglary. finding the that Woratzeck flight jury specifically The from crime. killed in the Leslie course of and in the second-degree bur- convicted Woratzeck of robbery necessarily furtherance of the in- robbery, glary armed both of which finding cludes a that he her during killed provided underlying felony felo- for the the course of and the furtherance of the ny-murder conviction. See Ariz.Rev.Stat. burglary. Therefore, even if lesser in- Assuming, arguendo, Ann. 13-1105.A.2. § cluded offense instruction theft should give the that the theft instruction given, felony-murder have been convic- conviction, taints armed supported by tion would be still Worat- felony-murder convic- address whether second-degree burglary zeck’s conviction. upon burglary tion stand could based Any might constitutional error that have felony alone. judge’s resulted from the trial failure to Stromberg California, 283 U.S. jury instruct theft was (1931), S.Ct. L.Ed. beyond harmless a reasonable doubt. See Supreme general that a concluded Hastings, United States v. jury verdict be set if the must aside 1980-81, L.Ed.2d that it instructed could two (1983) (error if, harmless absent the independent grounds for the ver- error, beyond it is clear a reasonable doubt dict, grounds of the one is found be the jury have returned a would verdict insufficient, impossible and it is to deter- Therefore, guilty). it unnecessary mine from the record whether the verdict us to decide whether the theft instruction may solely been have based on the insuffi- given. should have been 535; ground. cient Id. at S.Ct. at Stephens, see also Zant v. IV 2733, 2744-45, 103 S.Ct. 77 L.Ed.2d States, Yates v. United matter, As a final Woratzeck con 298, 311-12, 1064, 1072-73, 1 tends the trial court’s and the Arizona United States Les- Supreme finding Court’s that he murdered ter, 1291-92 n. 1 Cir. heinous, cruel, especially Leslie an 1984). however, analysis, Stromberg The process manner violated due apply does case. it is to this Here eighth prohibition against amendment’s possible felony-murder to tell that ver- punishment. pre cruel and unusual We predicated solely dict was not on the rob- that the sume state court’s is cor bery. jury specifically The found Worat- fairly supported by rect unless it is not burglary zeck guilty both 2254(d); record. See 28 U.S.C. Sumner Thus, jury burgla- we know that the found Mata, ry predicate felony. only re- to be a The maining question is whether the found Supreme Court has defined was murdered Leslie disposed pain “cruel” as inflict in an course of and the furtherance *9 wanton, insensate, sadistic, especially burglary. manner; shockingly “heinous” as vindictive bad; “depraved” as grossly and PROPERTIES, INC.,

evil WALNUT a Califor- corruption, perversion, or dete by marked Corporation, Miranda, nia and Vincent Richmond, 136 rioration. See State individual, Plaintiffs/Appellees, an 57, 64, 312, 319, 435, 78 L.Ed.2d 367 WHITTIER, City; CITY OF Charter found that Worat The trial court Klaxton, Henderson, M.D. R.L. L.A. cruel, heinous, in a zeck murdered Leslie Chandler, Strong, Lopez, Gene V.A. as The Arizona Su and manner. City Council; Members of the Whittier accepted medical examin preme Court Bale, James as Chief of Police of the testimony that Leslie was stabbed er’s City Whittier; and John Robert times, strangled, hit head three on the Flandrick, City Attorney City as twice, probably head was that blow to the Whittier, Defendants/Appellants. death, and that Leslie was the cause Nos. 84-6087. Woratzeck, alive the assault. See 134 Ariz. at 657 P.2d at 870. The Appeals, United States Court of found that Woratzeck’s violence Ninth Circuit. against reflected a heinous and de Leslie praved id. We conclude that Oct. attitude. See fairly supported by the court’s 20, 1987. As Amended Jan. reject the record and therefore Woratzeck’s As Amended on Denial of Rehearing eighth argu process due amendment Rehearing En Banc ments. March AFFIRMED.

BOOCHEVER, Judge, Circuit concur-

ring. join opinion

I the court’s because it is binding Supreme prece-

accord with recognize by I

dent. I am bound upholds

precedent which the constitutional penalty. If I

validity of the death were issue, agree I would

free to decide pen- Brennan’s view that the death

Justice circumstances cruel and un-

alty is all Eighth punishment forbidden

usual Gregg Fourteenth Amendments. See Georgia, (Brennan, J., 49 L.Ed.2d

dissenting), and at 96 S.Ct. at J., dissenting).

(Marshall,