Atwood v. Schriro (489 F. Supp. 2d 982, 2007)

DEATH PENALTY CASE

ORDER

COUGHENOUR, District Judge.

Frank Jarvis Atwood (Petitioner), a state prisoner under sentence of death, petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is imprisoned and sentenced in violation of the United States Constitution. This Order addresses the merits of all but one of Petitioner’s claims and determines that he is not entitled to habeas relief.

The procedural history of this case is, regrettably, long. As detailed below, almost three years passed before trial began, and the state appellate and post-conviction proceedings consumed an additional ten years. Much of the delay in state court was attributable to an extensive investigation, voluminous evidence and a vigorous defense presented at trial, and an extraordinary number of issues presented on direct appeal and in post-conviction proceedings.

These federal proceedings were initiated in 1998, but were delayed by litigation over a change of judge as well as successive significant decisions by the Ninth Circuit Court of Appeals and the United States Supreme Court that effectively stayed the case for several years. In addition, the large number of habeas claims raised by Petitioner, along with the Court’s bifurcated briefing procedure in which the parties first briefed the procedural status of Petitioner’s claims before addressing merits, required that the extensive state appellate and post-conviction records, which exceed 35,000 pages, be reviewed twice. In sum, the Court is cognizant that a significant amount of time has passed; however, a case of this magnitude cannot be resolved without careful consideration of the record, the briefs, and the relevant caselaw.

FACTS AND PROCEDURAL HISTORY

The following facts are taken from the Court’s review of the extensive record. On September 17, 1984, eight-year-old Vicki Lynn Hoskinson disappeared. At trial, her mother testified that she had left their home at 3:30 p.m. to mail a card at a mailbox near their neighborhood. The pink bike she had been riding was found abandoned on Pocito Place, an unpaved road a few blocks from her home. Seven months later, skeletal remains determined to be Vicki Lynn’s were found in the desert northwest of Tucson.

The victim was last seen by two boys from her neighborhood, who passed her on Pocito Place while riding their bikes in the opposite direction. One testified at trial that before turning on Pocito and seeing Vicky Lynn, he saw a dark “Datsun Z” car with California plates driving very slowly near the intersection of Pocito and Root Lane, the main road into their neighborhood. The driver had long dark hair, a moustache, and appeared not to have shaved recently.

On the same day, Sam Hall, a teacher at Vicki Lynn’s elementary school (located near her neighborhood), observed a dark “Z” car with California plates parked in an alley next to the school. The driver had long, unkempt dark hair and a beard and moustache. Hall noticed the driver making strange gestures and having difficulty getting his car into gear. Because the driver appeared out of place and made him nervous, Hall wrote down the vehicle’s license plate information. After learning of Vicki Lynn’s disappearance, Hall contacted the police, who traced the vehicle’s registration to Petitioner.

On September 20, three days after the victim’s disappearance, FBI agents learned from Petitioner’s mother that Petitioner and a traveling companion, James McDonald, were at a Texas auto repair shop. Petitioner and McDonald were arrested, and Petitioner’s black Datsun 280-Z impounded. At trial, an FBI examiner testified that pink paint found on the front bumper of Petitioner’s car “matched” the victim’s bicycle and that Petitioner’s bumper was the “source” of nickel particles found on the bike. An accident recon-structionist who testified for the State opined that the pedal of the victim’s bike fit a deformation on the gravel pan of Petitioner’s car and supported a theory that the car had struck the bicycle at a low speed, causing the bike to become lodged underneath.

In a statement to police following his arrest, Petitioner said he had been at De-Anza Park near downtown Tucson around noon on September 17. After a fight with McDonald, he left to find other acquaintances and returned to the park between 4:00 and 5:00 p.m. In a subsequent interview, Petitioner changed the time of his return to 3:30 p.m. At trial, McDonald and Thomas Parisién, who lived near the park, testified they saw blood on Petitioner’s hands, clothes, and knife the afternoon of September 17. Petitioner told them he had stabbed a man who tried to rip him off during a drug deal and then had taken the body out into the desert.

Following Vicki Lynn’s disappearance, numerous individuals reported seeing a dark “Z” car on September 17 and positively identified Petitioner as the driver. Several claimed they saw Petitioner in the victim’s neighborhood; one saw Petitioner drive out of the neighborhood with a small child in his car; and others placed Petitioner in the general vicinity of the site where the victim’s remains were ultimately found.

During the investigation, detectives also learned of Petitioner’s contacts with Ernest Bernsienne, a resident of Oklahoma who had been corresponding with Petitioner for about four years. Portions of letters to Bernsienne were admitted at trial, including Petitioner’s “confession” that he is attracted to children between the ages of seven and twelve. Bernsienne also testified that Petitioner told him, during a phone conversation several months before the victim’s disappearance, that he planned to go out and pick up a child and would make sure the child would not report it.

Petitioner was initially charged with one count of kidnapping. After the victim’s remains were discovered in April 1985, he was also charged with one count of first degree felony murder. Trial commenced in January 1987 and lasted approximately two months, with more than 75 witnesses testifying. On March 26, 1987, the jury returned a guilty verdict on both counts. Pima County Superior Court Judge John G. Hawkins sentenced Petitioner to death for the murder and a concurrent 25-year prison term for the kidnapping.

In 1993, the Arizona Supreme Court issued a lengthy, comprehensive opinion affirming Petitioner’s conviction and sentence on direct appeal. State v. Atwood, 171 Ariz. 576, 592, 832 P.2d 593, 609 (1992), cert. denied, 506 U.S. 1084, 113 S.Ct. 1058, 122 L.Ed.2d 364 (1993). In 1996, Petitioner filed in the trial court an amended petition for post-conviction relief (“PCR”) under Rule 32 of the Arizona Rules of Criminal Procedure. Pima County Superi- or Court Judge Raner C. Collins, substituted for the deceased Judge Hawkins, denied the petition in January 1997. A motion for rehearing was denied, and the Arizona Supreme Court summarily denied discretionary review in November 1997.

Petitioner filed a Petition for Writ of Habeas Corpus in this Court on March 12, 1998, and a 130-page amended petition raising 89 claims on May 2, 2000. (Dkts. 1, 103.) Respondents filed an answer (limited by the Court’s order to issues of exhaustion and procedural default), Petitioner filed a traverse, and Respondents filed a reply. (Dkts. 110, 113, 116.) In March 2001, the Ninth Circuit Court of Appeals issued a decision in Smith v. Stewart, 241 F.3d 1191 (9th Cir.2001), that called into question Arizona’s doctrine of procedural default. The Court stayed proceedings pending further review of Smith. (Dkt. 119.) In June 2002, the United States Supreme Court reversed. Stewart v. Smith, 536 U.S. 856, 122 S.Ct. 2578, 153 L.Ed.2d 762 (2002) (per curiam). This Court lifted the stay (Dkt. 120), and in September 2002 Petitioner filed a sur-re-ply, limited to issues of cause, prejudice, and fundamental miscarriage of justice (Dkt. 122).

Around the same time the United States Supreme Court resolved the Smith issue, it also decided Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which invalidated Arizona’s capital-sentencing scheme to the extent that it provided for a judge, not a jury, to determine capital-eligibility factors. In light of Ring, it was unclear whether Petitioner would be entitled to relief from his capital sentence. In June 2004, in Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), the Court held that Ring does not apply retroactively to cases, such as Petitioner’s, whose direct appeals were final at the time Ring was decided.

On June 6, 2005, the Court issued an extensive order identifying the procedural status of Petitioner’s claims. (Dkt. 127.) The Court determined that nearly half of Petitioner’s claims were either procedurally barred, not cognizable, or plainly merit-less, and directed the parties to file supplemental briefs addressing the merits of the remaining claims under the standards set forth in the AEDPA. (Id.) The Court also directed Petitioner to identify the claims for which he contends further evi-dentiary development is warranted. (Id.)

On November 14, 2005, Petitioner filed a 196-page opening merits brief. (Dkt. 140.) With respect to Claim 1-B, Petitioner set forth extensive new factual allegations that were not presented in his May 2000 amended petition. In response to Respondents’ assertion that the new factual allegations had not been raised in the amended petition nor in state court (Dkt. 148 at 22, 25-27), Petitioner replied only that the new facts did not fundamentally alter the nature of the claim exhausted in state court (Dkt. 154 at 11). The Court disagreed and in July 2006 directed the parties to file supplemental briefs on the following issues:

(1) Does Petitioner have an available state remedy to exhaust Claim 1-B’s new factual allegations?

(2) Can Petitioner establish either cause and prejudice or a fundamental miscarriage of justice to excuse any procedural default of these new factual allegations?

(3) Is amendment of the first amended petition to include the new factual allegations appropriate under Rule 15, Federal Rules of Civil Procedure, and Mayle v. Felix, 545 U.S. 644, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005)?

(Dkt. 158 at 3.) These briefs were filed on September 5, 2006. (Dkts. 162,163.)

CLAIM 1-B

In his May 2000 amended petition, Petitioner raised the following claim, which the Court designed as “Claim 1-B” in its June 6, 2005 procedural status order:

As also noted in Mr. Atwood’s Petition for PosWConviction Relief, Mr. Atwood’s Datsun was meticulously examined by agents of the FBI shortly after the vehicle was seized in Kerrville, Texas. No pink paint was observed. In addition, others who saw the vehicle shortly after it was seized saw no paint on the bumper.

As also observed in the Petition for Posl^Conviction Relief, police and civilian eyewitnesses who saw the bicycle at the time of its discovery, saw no evidence that the bicycle had been in an accident or had been hit by a vehicle.

These findings support the claim asserted in the Post-Conviction Relief Petition that Mr. Atwood was the victim of law enforcement misconduct. The planting of evidence constitutes a deprivation of Mr. Atwood’s right to a fair trial and due process of law under the 5th, 6th, 8th and 14th Amendments to the United States Constitution.

Dkt. 103 at 30-31 (record citations omitted). This is the entirety of Petitioner’s claim alleging the planting of pink paint evidence; it closely follows the claim asserted in Petitioner’s amended petition for post-conviction relief in state court. (ROA-PCR at 489-90.)

Not until November 14, 2005, when Petitioner filed his merits brief, did he flesh out the specific factual details underlying his claim of law enforcement misconduct. (Dkt. 140 at 25-29.) Petitioner now alleges that agents clandestinely removed the bumper of his car shortly after his arrest in Texas, transported the bumper to Arizona, applied paint from the victim’s bicycle to the bumper, scraped a “sample,” and returned the bumper and sample to Texas, where agents reattached the bumper and then “discovered” the paint smear. (Id. at 25.) He asserts that the government’s photographic record, initial paint scrapings, and log index of collected evidence were altered after the fact to conceal the misconduct. (Id. at 25-29; Dkt. 154, Attach. A at 4.) With regard to the photographs, he asserts that some were destroyed and replaced by doctored photographs. He further asserts that upon return to Texas, a water-soluble paint was applied to cover the scrapings made in Tucson, photographs were taken to depict a “before scraping” view of the bumper, and then the water-soluble paint was removed. (Id. at 25, 28-29.) Petitioner claims that recent digital enhancement of the government’s photographic evidence, conducted during these federal habeas proceedings, proves the misconduct. (Dkt. 140 at 25-29.)

Exhaustion

In its July 24, 2006 order requesting supplemental briefing, the Court concluded that Petitioner had failed to present these new operative facts to the state court and directed the parties to address whether Petitioner has an available remedy in state court to exhaust the allegations. (Dkt. 158 at 2-3.) Respondents concede that Petitioner may have an available remedy in state court to exhaust his new factual allegations. (Dkt. 162 at 2-3.) Petitioner also asserts that he likely has a remedy in state court, but states that his preference is to litigate the issue in this Court. (Dkt. 163 at 2-4, 21.) However, absent an affirmative waiver of the exhaustion requirement from Respondents pursuant to 28 U.S.C. § 2254(b)(3), this Court may not grant relief on an unexhausted claim. 28 U.S.C. § 2254(b)(1)(A); see also 28 U.S.C. § 2254(b)(2) (providing that an unexhaust-ed claim may be denied on the merits).

Stay and Abeyance

If Respondents do not waive exhaustion, the Court would have to decide whether a stay of proceedings pending exhaustion of Petitioner’s new allegations is warranted. In Rhines v. Weber, the Supreme Court considered “whether a federal district court has discretion to stay [a] mixed petition to allow the petitioner to present his unexhausted claims to the state court in the first instance, and then to return to federal court for review of his perfected petition.” 544 U.S. 269, 270, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005). The Court held that a district court does have such discretion where there is “good cause” for the failure to exhaust, the unexhausted claim is potentially meritorious, and the petitioner has not engaged in abusive litigation tactics or intentional delay. Id. at 277-78, 125 S.Ct. 1528.

In his supplemental brief, Petitioner states that he “now has uncovered facts that support [Claim 1-B] that were unknown to him at the State post-conviction stage.” (Dkt. 163 at 3-4.) He asserts “it is highly likely that the technology and expertise necessary to an evaluation of the photographic evidence would have been unavailable” to him at that time. (Id. at 4.) Petitioner offers no further explanation for why his new facts have not been presented in state court, nor has he proffered any evidence to substantiate his claim that the type of photographic analysis critical to his allegations was not available at the time of his first PCR petition. In fact, other than reproductions and blow-nps of some of the State’s photographic exhibits as well as some other unidentified photographs, Petitioner does not proffer any support for his new allegations of planted evidence. Petitioner’s explanation for what the appended photographs allegedly show is far from persuasive, and many of his assertions are highly speculative. The Court concludes that this record is insufficient to determine whether Petitioner has good cause for not exhausting his new allegations in state court during his first PCR proceeding or in the many years since then. It is also unclear, based on the paucity of support appended to Petitioner’s merits brief, whether the new allegations in Claim 1-B are potentially meritorious.

Amendment

If Respondents choose to waive exhaustion of Claim 1-B, it is not apparent from Petitioner’s briefs that amendment would be warranted under Rule 15 of the Federal Rules of Civil Procedure. See Calderon v. United States Dist. Ct. for the N. Dist. of Cal., 134 F.3d 981, 986 n. 6 (9th Cir.1998) (citing Withrow v. Williams, 507 U.S. 680, 696 n. 7, 113 S.Ct. 1745, 123 L.Ed.2d 407 (1993)). Under Rule 15(a), leave to amend “shall be freely given when justice so requires,” and courts must review motions to amend “in light of the strong policy permitting amendment.” Gabrielson v. Montgomery Ward & Co., 785 F.2d 762, 765 (9th Cir.1986). The factors which may justify denying a motion to amend are undue delay, bad faith or dilatory motive, futility of amendment, and undue prejudice to the opposing party. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).

Petitioner has not actually requested amendment. Rather, despite this Court’s clear finding in its July 24, 2006 order, he continues to contend that his new facts do not fundamentally alter the nature of the claim that was exhausted in state court. The Court has already rejected this argument; therefore, amendment would be required if the Court is to consider the claim. (Dkt. 158 at 2-3.) Furthermore, pursuant to Rule 2 of the Rules Governing Habeas Corpus Cases, Petitioner was obligated to present all of his supporting facts in his amended petition; he did not, waiting until the subsequent round of merits briefing years later. Thus, if Respondents were to waive exhaustion, the Court would have to determine whether amendment is appropriate.

In their supplemental brief, Respondents argue that Petitioner’s new allegations are untimely and, thus, amendment would be futile. In Mayle v. Felix, 545 U.S. 644, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005), the Supreme Court explained the relation-back principle in Rule 15(c)(2) in light of the AEDPA’s one-year limitations period. The Court held that proposed new claims relate back to “timely” ones only when such claims are tied to a common core of operative facts. Id. at 664, 125 S.Ct. 2562. The Court rejected the argument that a common core of operative facts could be interpreted to include all facts arising out of a petitioner’s trial, conviction, or sentence. Id. New claims supported by facts that differ in both “time and type” from those included in the original petition do not relate back. Id. at 650, 125 S.Ct. 2562. In contrast, if a new claim merely clarifies or amplifies a claim or theory already in the original petition, it may relate back to the date of the original petition and avoid a time bar. See Woodward v. Williams, 263 F.3d 1135, 1142 (10th Cir.2001).

Respondents argue that Petitioner’s new allegations are untimely because they rely on facts that differ in both “time and type” from those asserted in the original petition. Respondents’ argument rests on an excessively narrow reading of Petitioner’s claim. In their view, his original misconduct allegations were based only on misconduct by the FBI Crime Lab in Washington, D.C., not by field agents as now alleged. (Dkt. 162 at 4.) However, in his amended petition, Petitioner specifically alleged that he was “the victim of law enforcement misconduct” because the FBI agents who examined the vehicle after it was seized observed no pink paint. (Dkt. 103 at 31.) He further stated that the “planting of evidence” violated his federal constitutional rights. (Id.)

The Court finds that Petitioner’s new allegations “relate back” to Claim 1-B. It is evident that the new allegations are tied to the same core allegation underlying the claim — that law enforcement intentionally planted the pink paint smear on Petitioner’s bumper. Thus, Petitioner’s allegations are not untimely under 28 U.S.C. § 2244(d), and amendment would not be futile on the basis of the statute of limitations.

Whether amendment should be denied on the basis of other factors such as undue delay, bad faith/dilatory motive, prejudice to Respondents, or because the claim is meritless is less clear. Foman, 371 U.S. at 182, 83 S.Ct. 227.

Oral Argument and Offer of Proof

Based on the foregoing, the Court finds that it would benefit from oral argument on whether stay and abeyance and/or amendment is appropriate for Claim 1-B. At the hearing, either party may make an offer of proof as to any facts the parties believe would assist the Court in deciding how to proceed with Petitioner’s new, unexhausted allegations. The Court will by separate order direct the Clerk of the Pima County Superior Court to provide this Court with the photographic exhibits from Petitioner’s trial to assist any discussion relating to the photographs during the hearing.

AEDPA STANDARD FOR RELIEF

Because this ease was filed after April 24, 1996, it is governed by the AEDPA. Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Woodford v. Garceau, 538 U.S. 202, 210, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003). Under the AEDPA, a petitioner is not entitled to habeas relief on any claim “adjudicated on the merits” by the state court unless that adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). The phrase “adjudicated on the merits” refers to a decision resolving a party’s claim which is based on the substance of the claim rather than on a procedural or other non-substantive ground. Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir.2004). The relevant state court decision is the last reasoned state decision regarding a claim. Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir.2005) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991)); Insyxiengmay v. Morgan, 403 F.3d 657, 664 (9th Cir.2005).

“The threshold question under AEDPA is whether [the petitioner] seeks to apply a rule of law that was clearly established at the time his state-court conviction became final.” Williams v. Taylor, 529 U.S. 362, 390, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Therefore, to assess a claim under subsection (d)(1), the Court must first identify the “clearly established Federal law,” if any, that governs the sufficiency of the claims on habeas review. “Clearly established” federal law consists of the holdings of the Supreme Court at the time the petitioner’s state court conviction became final. Williams, 529 U.S. at 365, 120 S.Ct. 1495; see Carey v. Musladin, — U.S. -, -, 127 S.Ct. 649, 653, 166 L.Ed.2d 482 (2006); Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.2003). Habeas relief cannot be granted if the Supreme Court has not “broken sufficient legal ground” on a constitutional principle advanced by a petitioner, even if lower federal courts have decided the issue. Williams, 529 U.S. at 381, 120 S.Ct. 1495. Nevertheless, while only Supreme Court authority is binding, circuit court precedent may be “persuasive” in determining what law is clearly established and whether a state court applied that law unreasonably. Clark, 331 F.3d at 1069.

The Supreme Court has provided guidance in applying each prong of § 2254(d)(1). The Court has explained that a state court decision is “contrary to” the Supreme Court’s clearly established precedents if the decision applies a rule that contradicts the governing law set forth in those precedents, thereby reaching a conclusion opposite to that reached by the Supreme Court on a matter of law, or if it confronts a set of facts that is materially indistinguishable from a decision of the Supreme Court but reaches a different result. Williams, 529 U.S. at 405-06, 120 S.Ct. 1495; see Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam). In characterizing the claims subject to analysis under the “contrary to” prong, the Court has observed that “a run-of-the-mill state-court decision applying the correct legal rule to the facts of the prisoner’s case would not fit comfortably within § 2254(d)(l)’s ‘contrary to’ clause.” Williams, 529 U.S. at 406, 120 S.Ct. 1495; see Lambert, 393 F.3d at 974.

Under the “unreasonable application” prong of § 2254(d)(1), a federal habeas court may grant relief where a state court “identifies the correct governing legal rule from [the Supreme] Court’s cases but unreasonably applies it to the facts of the particular ... case” or “unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams, 529 U.S. at 407, 120 S.Ct. 1495. In order for a federal court to find a state court’s application of Supreme Court precedent “unreasonable” under § 2254(d)(1), the petitioner must show that the state court’s decision was not merely incorrect or erroneous, but “objectively unreasonable.” Id. at 409, 120 S.Ct. 1495; Woodford v. Visciotti, 537 U.S. 19, 25, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam).

Under the standard set forth in § 2254(d)(2), habeas relief is available only if the state court decision was based upon an unreasonable determination of the facts. Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (Miller-El II). A state court decision “based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” See Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (.Miller-El I). In considering a challenge under 2254(d)(2), state court factual determinations are presumed to be correct, and a petitioner bears the “burden of rebutting this presumption by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Miller-El II, 545 U.S. at 240, 125 S.Ct. 2317.

As the Ninth Circuit has noted, application of the foregoing standards presents difficulties when the state court decided the merits of a claim without providing its rationale. See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir.2002); Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir.2000). In those circumstances, a federal court independently reviews the record to assess whether the state court decision was objectively unreasonable under controlling federal law. Himes, 336 F.3d at 853; Pirtle, 313 F.3d at 1167. Although the record is reviewed independently, a federal court nevertheless defers to the state court’s ultimate decision. Pirtle, 313 F.3d at 1167 (citing Delgado, 223 F.3d at 981-82); see also, Himes, 336 F.3d at 853. Only when a state court did not decide the merits of a properly raised claim will the claim be reviewed de novo, because in that circumstance “there is no state court decision on [the] issue to which to accord deference.” Pirtle, 313 F.3d at 1167; see also Menendez v. Terhune, 422 F.3d 1012, 1025-26 (9th Cir.2005); Nulph v. Cook, 333 F.3d 1052, 1056-57 (9th Cir.2003).

AEDPA STANDARD FOR EVIDENTIARY HEARING

Historically, the district court had considerable discretion to hold an evidentiary hearing to resolve disputed issues of material fact. See Townsend v. Sain, 372 U.S. 293, 312, 318, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), overruled in part by Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992), and limited by § 2254(e)(2); Baja v. Ducharme, 187 F.3d 1075, 1077-78 (9th Cir.1999); Rule 8, Rules Governing § 2254 Cases, 28 U.S.C. foil. § 2254 (providing that the district court judge shall determine if an evidentia-ry hearing is required). That discretion is significantly circumscribed by § 2254(e)(2) of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See Baja, 187 F.3d at 1077-78.

Section 2254 provides that:

If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that—

(A) the claim relies on—

(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

28 U.S.C. § 2254(e)(2) (emphasis added). The Supreme Court has interpreted subsection (e)(2) as precluding an evidentiary hearing in federal court if the failure to develop a claim’s factual basis is due to a “lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.” Williams v. Taylor, 529 U.S. 420, 432, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). The test for determining “diligence” is whether Petitioner “made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court.” Id. at 435, 120 S.Ct. 1479.

If the petitioner has not failed to develop the factual basis of a claim in state court, the Court will then proceed to consider whether a hearing is appropriate or required under the criteria set forth by the Supreme Court in Townsend. 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770; see Baja, 187 F.3d at 1078; Horton v. Mayle, 408 F.3d 570, 582 n. 6 (9th Cir.2005). Pursuant to Townsend, a federal district court must hold an evidentiary hearing in a § 2254 case when: (1) the facts are in dispute; (2) the petitioner “alleges facts which, if proved, would entitle him to relief;” and (3) the state court has not “reliably found the relevant facts” after a “full and fair evidentiary hearing,” at trial or in a collateral proceeding. Townsend, 372 U.S. at 312-13, 83 S.Ct. 745; cf. Hill v. Lockhart, 474 U.S. 52, 60, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (upholding the denial of a hearing when petitioner’s allegations were insufficient to satisfy -the governing legal standard); Bashor v. Risley, 730 F.2d 1228 (9th Cir.1984) (hearing not required when claim must be resolved on state court record or claim is based on non-specific conclusory allegations). In any other case in which diligence has been established, the district court judge “has the power, constrained only by his sound discretion, to receive evidence bearing upon the applicant’s constitutional claim.” Townsend, 372 U.S. at 318, 83 S.Ct. 745 (noting that if a “habeas applicant was afforded a full and fair hearing by the state court resulting in reliable findings, [the judge] may, and ordinarily should, accept the facts as found in the hearing.”).

ANALYSIS OF CLAIMS

Claim 7: Violation of the Fourteenth Amendment based on insufficient evidence to support the jury’s verdict.

Petitioner contends that the evidence at trial was constitutionally insufficient to support either the kidnapping or murder convictions. (Dkt. 103 at 53; Dkt. 140 at 88.) Petitioner raised this claim on appeal. Viewing the evidence in the light most favorable to sustaining the verdict, the Arizona Supreme Court concluded there was substantial evidence from which the jury could conclude beyond a reasonable doubt that the defendant kidnapped and murdered the victim. Atwood, 171 Ariz. at 596-99, 832 P.2d at 613-16. In upholding the kidnapping conviction, the high court found the following evidence “particularly damning”:

— Defendant was in the neighborhood on the afternoon the victim disappeared, a fact made virtually unquestionable by Sam Hall’s sighting of a 280Z with license plates registered to defendant and his identification of defendant as the driver.

— Testimony from one of the teenage boys placed defendant at the intersection where the victim’s bike was found.

— Prosecution experts testified, albeit not without disagreement from defendant’s own experts, that paint and nickel transfers between the vehicle and the bike indicated that the two had come in contact, and that damage to defendant’s car was consistent with striking a bicycle.

— Three witnesses identified defendant and testified that they had seen a young child riding with him in his car.

— Defendant’s letters revealed his sexual attraction to young children.

Id. at 597, 832 P.2d at 614.

With regard to Petitioner’s claim that the State had failed to establish the corpus delicti of murder, the court ruled that the evidence presented at trial, although circumstantial, “plainly negated the possibility that the victim died as a result of an accident.” Id. at 599, 832 P.2d at 616. The court also considered Petitioner’s post-arrest statements, together with the evidence listed above, and concluded there was sufficient evidence from which the jury could find that Petitioner killed the victim. Id. Specifically, Petitioner told acquaintances, who noticed blood on his hands the afternoon the victim disappeared, that he:

had stabbed a man in a drug transaction and had taken the body to the desert. He repeated this story several times during the next few days as he and McDonald traveled to Texas. Defendant also told McDonald and Parisién that he had gotten cactus needles in his arms and legs when he returned to the location where he left the body to retrieve keys he had dropped. Defendant also discussed the idea of disposing of his blood-stained clothes and, during his trip to Texas, he repeatedly sandpapered the blade of his knife.

Id.

Petitioner argues that the Arizona court’s ruling was based on an unreasonable application of both controlling Supreme Court law and the facts in light of the evidence presented in state court. (Dkt. 140 at 91.) Specifically, he asserts the case against him was “entirely circumstantial”; no reliable eyewitness provided evidence he kidnapped or killed the victim (only that he was in her neighborhood); the state high court incorrectly stated that Petitioner is a “convicted pedophile”; there was no reliable evidence of motive; and pink paint matching the victim’s bike found on the bumper of Petitioner’s car is “highly dubious” because “there is no satisfying explanation for [the FBI’s] failure to observe the paint” on the day Petitioner was arrested and his car impounded. (Id. at 90.)

There is sufficient evidence to support a conviction if, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In making such a determination, a reviewing court is guided by a number of principles which reflect the doctrine that “deference [is] owed to the trier of fact.” Wright v. West, 505 U.S. 277, 296, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992). For example, “a federal habeas court faced with a record of historical facts that supports conflicting inferences must presume' — even if it does not affirmatively appear in the record— that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Jackson, 443 U.S. at 326, 99 S.Ct. 2781. In addition, it is the province of the jury to “resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id. at 319, 99 S.Ct. 2781; see Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir.1995). As the Ninth Circuit has explained, “The question is not whether we are personally-convinced beyond a reasonable doubt. It is whether rational jurors could reach the conclusion that these jurors reached.” Roehler v. Borg, 945 F.2d 303, 306 (9th Cir.1991) (citing Jackson, 443 U.S. at 326, 99 S.Ct. 2781). While “mere suspicion or speculation cannot be the basis for creation of logical inferences ... [cjircum-stantial evidence and inferences drawn from it may be sufficient to sustain a conviction.” United States v. Lewis, 787 F.2d 1318, 1323 (9th Cir.1986); see United States v. Johnson, 804 F.2d 1078, 1083 (9th Cir.1986) (the government is entitled to all reasonable inferences that may be drawn from the evidence).

Under Arizona law, a person commits first degree felony murder if “[ajcting alone or with one or more other persons such person commits or attempts to commit ... kidnapping under § 13-1304 ... and in the course of and in furtherance of such offense or immediate flight from such offense, such person or another person causes the death of any person.” A.R.S. § 13-1105 (West 1978 & Supp.1984). “A person commits kidnapping by knowingly restraining another person with the intent to ... [ijnflict death, physical injury or a sexual offense on the victim or to otherwise aid in the commission of a felony.” A.R.S. § 13-1304.

Although the case against Petitioner was based upon circumstantial evidence, viewing that evidence in the light most favorable to the prosecution, this Court cannot say that no rational trier of fact could have found Petitioner guilty of kidnapping and first degree felony murder. Petitioner was seen at the victim’s school and in her neighborhood just prior to her disappear-anee, and two witnesses saw Petitioner with a child in his car in the general vicinity of where her remains were eventually found. Paint and nickel transfer established that Petitioner’s car made contact with the victim’s bike, and there is no reasonable explanation other than forcible kidnapping for the victim to be in a remote desert area, miles from where her bike was found. Petitioner’s correspondence with Ernest Bernsienne revealed Petitioner’s sexual attraction to children, and just months prior to Vicki Lynn’s disappearance Petitioner told Bernsienne he was going to pick up a child and would make sure the child could not report him to authorities. Witnesses testified that they saw blood on Petitioner’s clothing and knife, and that he had cactus needles in his arms and legs the afternoon after the victim’s disappearance. Petitioner told them he had stabbed a man and taken the body to the desert, but he later recanted this story, saying it was a fabrication.

Petitioner complains about the reliability of the witnesses who testified to seeing him with a child in his car, but Petitioner’s counsel exhaustively cross-examined these witnesses and their credibility was for the jury to determine. Petitioner also asserts that the Arizona Supreme Court’s characterization of him as a “convicted pedophile” evidences an unreasonable determination of the facts. However, this reference was included only in the general background facts of the opinion. The court’s Jackson analysis did not rely on this statement, presumably because evidence of Petitioner’s prior convictions was not submitted to the jury. Rather, the court referenced only the uncontroverted fact that Petitioner is sexually attracted to children, which was before the jury through Petitioner’s letter to Bernsienne. Atwood, 171 Ariz. at 597, 832 P.2d at 614; see also Sarausad v. Porter, 479 F.3d 671, 678 (9th Cir.2007) (observing that a court analyzing sufficiency of the evidence under Jackson does not make any “determination of the facts” in the ordinary sense of resolving factual disputes).

Finally, Petitioner argues that the pink paint evidence is “highly dubious” because there is a lack of explanation for the failure of the FBI to find the paint on the day Petitioner was arrested and his ear impounded. This again was an issue for the jury to determine. Testimony at trial established that Petitioner’s car was seized on September 20, after he was arrested in Kerrville, Texas. The vehicle was photographed that day by FBI Agent Declan Hoffman. Agent Hoffman testified that he photographed the car “in general” and did not focus with any particularity on the bumpers; that he was neither aware of the significance of nor specifically looked for pink paint; and that the vehicle was filthy. (RT 2/18/87 PM at 96, 104, 106.) The vehicle was transported from Kerrville to San Antonio on September 21. (RT 2/13/87 at 26.) FBI Agent Edward Bur-witz testified that he arrived in San Antonio from Washington that afternoon and the next morning (September 22) began collecting evidence, including pink paint scrapings from the front bumper of Petitioner’s car. (Id. at 47-48.) By this time, agents were aware that the vehicle may have come in contact with the victim’s bike and were on the lookout for corroborating evidence. (RT 2/18/87 PM at 99.) Viewed in the light most favorable to the State, this was sufficient evidence from which the jury could find that the FBI’s initial failure to notice the small paint markings was understandable.

The Court has reviewed the extensive trial record and concludes that the evidence is sufficient to support Petitioner’s convictions. The Arizona Supreme Court’s rejection of this claim was not objectively unreasonable. Sarausad, 479 F.3d at 677.

Claim 1-A: Violation of the Sixth and Fourteenth Amendments based on expert testimony regarding the pink paint match.

Petitioner alleges that the pink-paint tests conducted and testified to by James Corby, an FBI laboratory analyst, were inadequate; therefore, the trial court’s admission of Agent Corby’s testimony violated his due process rights. (Dkt. 103 at 30.) Further, Petitioner alleges that his due process rights were violated by misconduct at the FBI Crime Lab.

Admission of Agent Corby’s Testimony

At trial, Agent Corby testified that he performed microscopic, microchemical, and instrumental analyses on pink paint scrapings collected from the bumper of Petitioner’s car. Atwood, 171 Ariz. at 595, 832 P.2d at 612. He concluded from these tests that “the paint on the bumper either came from the victim’s bike or from another source exactly like the bike.” Id. Petitioner asserts that the tests performed by Corby were “materially deficient” and consequently his conclusions regarding the paint match were erroneous. (Dkt. 103 at 30.)

In his merits brief, Petitioner asserts that new experts he has consulted during these habeas proceedings support his claim that Agent Corby’s “assessment and testimony was sufficiently misleading and unreliable” to deprive him of due process. (Dkt. 140 at 31.) He states that Dr. Frederic Whitehurst, who worked in the FBI Crime Lab at the time of the paint comparison and analysis testified to in this case,

concludes that the tests performed were materially deficient and that those tests do not and can not support the conclusion offered by FBI Agent Corby at the time of trial. Dr. Whitehurst further concludes that based upon the tests performed by the FBI Crime Lab it is not reasonably possible to conclude that a match existed and, to the contrary, the scientific comparisons undertaken support the opposite conclusion — the paint on the bumper does not match the paint on the bicycle. His concerns with respect- to this particular comparison are the same as the concerns that led him to become a “whistleblower” on the Crime Lab in the first instance.

(Dkt. 103 at 28) (emphasis added.) Petitioner also declares that Dr. Darlene Brez-inski, a nationally-known expert in the field of materials comparison, “has opined that the paint comparison was fundamentally flawed and that the tests performed do not support the conclusion offered at trial.” (Id. at 28.)

“The role of federal habeas proceedings, while important in assuring that constitutional rights are observed, is secondary and limited. Federal courts are not forums in which to relitigate state trials.” Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). A state court’s evidentiary ruling is not subject to federal habeas review unless the ruling violates federal law, either by infringing upon a specific federal constitutional or statutory provision or by depriving the defendant of the fundamentally fair trial guaranteed by due process. Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984). “A writ of habeas corpus will be granted for an erroneous admission of evidence only where the ‘testimony is almost entirely unreliable and ... the factfinder and the adversary system will not be competent to uncover, recognize, and take due account of its shortcomings.’ ” Mancuso v. Olivarez, 292 F.3d 939, 955-56 (9th Cir.2002) (quoting Barefoot, 463 U.S. at 899, 103 S.Ct. 3383). In other words, the evidentiary admission must have “rendered the trial so arbitrary and fundamentally unfair that it violated federal due process.” Id. (internal quotations omitted).

Petitioner does not assert that at the time of his trial expert testimony on microscopic, microchemical, and instrumental analyses of paint was not admissible; nor does he claim that Agent Corby lacked expertise in paint analysis. While defense counsel did not question the reliability of Corby’s testing (RT 3/4/87 PM at 89-90, 97), he extensively cross-examined Corby’s qualifications, analysis, and conclusions (RT 3/5/87 AM at 55-102; RT 3/5/87 PM at 6-13, 26-31, 36-50, 81-89). The defense also enlisted its own paint expert to review Corby’s report, charts, and graphs, and to inform defense counsel’s cross-examination, examine the testing done by the FBI’s analysts, and provide testimony challenging Corby’s testing methods and the validity of his conclusions. (RT 3/4/87 PM at 77-79, 113; RT 3/5/87 AM at 49; RT 3/16/87 at 28-75, 104-08.) The trial court instructed the jury that it was to determine the weight to be given any expert testimony. (RT 3/24/87 at 180.)

Petitioner is not entitled to relitigate the sufficiency of Corby’s testing in these proceedings. See Siripongs v. Calderon, 167 F.3d 1225, 1227-28 (9th Cir.1999) (rejecting habeas claims based on opinion of newly-hired defense expert, where test results were available and reviewed by defense expert prior to trial); Moore v. Gibson, 195 F.3d 1152, 1168 (10th Cir.1999) (same). “Because this evidentiary issue was fully and competently aired in the state courts, no violation of fundamental fairness under the due process clause has been shown.” Spence v. Johnson, 80 F.3d 989, 1000 (5th Cir.1996); see also Moore, 195 F.3d at 1167-68 (finding no due process violation from admission of forensic chemist’s testimony where defense counsel ably challenged evidence, expert’s qualifications, and testing methods).

Petitioner concedes that information concerning alleged misconduct at the FBI Crime Lab “did not begin to emerge until many years” after his trial. (Dkt. 140 at 30.) Thus, any claim that the trial court erred because it should have known that Agent Corby’s proposed testimony was based on faulty lab work necessarily fails. Moreover, in light of the relevancy of the evidence, the admissibility of paint comparison analysis, and Agent Corby’s expertise, this Court cannot say that it was fundamentally unfair for the trial court to allow admission of Corby’s testimony. Petitioner’s desire to present new expert testimony to establish that Corby’s testing was deficient, and therefore should not have been admitted, is a transparent attempt “to relitigate this aspect of his defense.” Spence v. Johnson, 80 F.3d at 1000. Even if the Court were to consider the expert opinions Petitioner now presents, he has not provided an affidavit from either expert and fails to identify in any specific way how Corby’s testing was “materially deficient.”

Police Misconduct

To the extent Petitioner is arguing that his right to due process was violated by specific misconduct at the FBI Crime Lab, the Court finds no basis for an evidentiary hearing or habeas relief. Petitioner presented this claim in his PCR petition. (ROA-PCR at 489-90.) In denying relief, the PCR court wrote:

This claim, alleging evidence-rigging by the FBI, asserts as its basis newly discovered evidence of misconduct in FBI laboratories in other cases, citing an article published in the Arizona Daily Star which was not provided to the court. Even assuming that misconduct has been conclusively proven in other cases, such evidence is immaterial to the present case. In the absence of any specific facts alleging misconduct by the FBI in this case, this claim is denied because it does not present a material issue or fact or law which would entitle the petitioner to relief under Rule 32.

(ROA-PCR at 1008-09.) Petitioner does not state with any particularity how the state court’s ruling was either contrary to, or an unreasonable application of, controlling Supreme Court law or was based on an unreasonable determination of the facts. Rather, Petitioner asserts only that a federal evidentiary hearing is necessary because this aspect of his case was not further developed during the state PCR proceeding because the state court ruled summarily without a hearing. (Dkt. 140 at 31.)

The AEDPA limits a district court’s discretion to conduct evidentiary hearings. Under § 2254(e)(2), a petitioner who failed to develop the facts of a claim in state court may not obtain a hearing in federal court except in limited circumstances. “A petitioner has not neglected his or her rights in state court if diligent in efforts to search for evidence.” Bragg v. Galaza, 242 F.3d 1082, 1090, as amended by 253 F.3d 1150 (9th Cir.2001). The test for determining “diligence” is whether Petitioner “made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court.” Williams, 529 U.S. at 435, 120 S.Ct. 1479. The mere request for an evidentiary hearing may not be sufficient to establish diligence if a reasonable person would have taken additional steps. See Dowthitt v. Johnson, 230 F.3d 733, 758 (5th Cir.2000) (petitioner requested hearing but found not diligent because he failed to present affidavits of family members that were easily obtained without court order and with minimal expense); see also Koste v. Dormire, 345 F.3d 974, 985-86 (8th Cir.2003) (lack of diligence despite hearing request because petitioner made no effort to develop the record or assert any facts to support claim that his counsel was ineffective for knowing of and failing to investigate petitioner’s psychiatric condition).

Under Arizona law, Petitioner had a duty to file affidavits, records, or other evidence available to him to support the allegations raised in his PCR petition. Ariz. R.Crim. P. 32.5. Petitioner did append numerous materials to his PCR petition; however, none supported the allegation that the FBI Crime Lab engaged in evidence-rigging in his ease. As the PCR court noted, Petitioner did not even provide a copy of the article cited in his petition. Petitioner’s lack of diligence precludes this Court from holding a hearing, and he has not attempted to satisfy the requirements of §§ 2254(e)(2)(A) & (B). More significantly, Petitioner has failed both in state court and in these proceedings to allege specific facts supporting a claim of police misconduct.

As already noted, Petitioner asserts that a former FBI Crime Lab employee, Dr. Frederic Whitehurst, has reviewed Cor-by’s testing in this case and concluded that it was “materially deficient.” (Dkt. 103 at 28.) Further, Petitioner points to improprieties occurring in the FBI Crime Lab that surfaced in the mid-90s and says “the jury never learned that the Unit from which [the FBI analysts] came was highly compromised.” (Dkt. 140 at 30.) However, he does not assert that Corby engaged in misconduct by, for example, falsifying test results or planting evidence. Rather, Petitioner attempts to insinuate, based on his new experts’ unsworn views alleging (in only general terms) deficiency and flaws in Corby’s testing, that Corby must have engaged in some kind of improper conduct. On its face, the petition fails to set forth a factual predicate for a claim of police misconduct. See Williams v. Woodford, 384 F.3d 567, 588 (9th Cir.2004) (“[CJonclusory allegations by counsel that are unsworn and unsupported by any proof or offer of proof do not provide an adequate basis to obtain a federal evidentiary hearing.”).

Moreover, as already discussed, Petitioner had an opportunity during trial to fully cross-examine Corby regarding his testing methodology and conclusions and had his own expert review Corby’s work. While critical of Corby’s conclusions, the defense expert acknowledged that Corby utilized appropriate methods for analyzing the pink paint smear and could not rule out that the paint came from the victim’s bicycle. (RT 3/24/87 at 103, 86.) In addition, the Court notes that Petitioner’s assertion in his petition that it was “not reasonably possible to conclude that a match existed” (Dkt. 103 at 28) is belied by the new allegation in his merits brief that the pink paint analyzed by Agent Corby was in fact from the victim’s bicycle— planted there by agents following Petitioner’s arrest in Texas (Dkt. 140 at 22-29).

In sum, whether framed as trial court error for admitting Corby’s expert testimony or as police misconduct, Petitioner has failed to establish entitlement to either an evidentiary hearing or habeas relief on Claim 1-A.

Claim 5-A: Violation of the Sixth and Fourteenth Amendments based on counsel’s failure to investigate paint smear evidence.

Petitioner was initially represented, for approximately seven months, by court-appointed counsel, Lamar Couser. Twenty months before trial began, Petitioner’s parents retained Stanton Bloom, who represented him through trial and sentencing. Petitioner asserts that Couser’s representation was constitutionally deficient because he failed to “conduct any meaningful investigation” with respect to the alleged discovery of pink paint on Petitioner’s car. (Dkt. 140 at 79.)

For a claim alleging ineffective assistance of counsel (IAC), the applicable law is set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail under Strickland’s two-pronged standard, a petitioner must show that counsel’s representation fell below an objective standard of reasonableness and that the deficiency prejudiced the defense. 466 U.S. at 687-88, 104 S.Ct. 2052. The inquiry under Strickland is highly deferential, and “every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689, 104 S.Ct. 2052. To prove deficient performance, a defendant must also overcome “the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id.; see Dows v. Wood, 211 F.3d 480, 486-87 (9th Cir.2000). To demonstrate prejudice, a petitioner “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052.

Under the AEDPA, the state court’s decision is subject to another level of deference. Bell v. Cone, 535 U.S. 685, 698-99, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). To merit habeas relief, a petitioner must make the additional showing that the state court’s determination that counsel was not ineffective constituted an unreasonable application of Strickland. 28 U.S.C. § 2254(d)(1).

On direct appeal, the Arizona Supreme Court rejected this claim:

First, defendant admits that a defense expert later examined the paint smear. Although this examination took place approximately two years after the state’s examination, defendant has not shown that the time lapse resulted in prejudice to the defense. Second, defendant offers no proof that investigations into possible alternative sources of the paint smear would have yielded anything valuable to the defense. Thus, the required showing of prejudice has not been met.

Atwood, 171 Ariz. at 600, 832 P.2d at 617. Petitioner does not argue that the state court’s ruling is an unreasonable application of either Strickland or the facts. Rather, he asserts that Couser’s ineffectiveness is apparent from the allegations of fraud in Claim 1-B because he failed to subject the paint evidence to “adversarial testing” or “take any steps to investigate how it was possible for the paint to have been overlooked by the first FBI agents to inspect the vehicle and then mysteriously to have appeared days later.” (Dkt. 140 at 79.) The Court disagrees.

First, as noted by the Arizona Supreme Court, Couser’s successor counsel subjected the paint to “adversarial testing.” He enlisted an expert to review both Agent Corby’s paint analysis report and the underlying charts and graphs from his testing. Second, Petitioner does not identify the “steps” he alleges Couser should have taken to explain how the FBI failed to discover the pink paint during the initial search of the car. The Court finds that Petitioner has failed to show that the state court’s denial of Claim 5-A was based on an unreasonable application of Strickland or an unreasonable determination of the facts as developed in state court.

Petitioner asserts that an evidentiary hearing is necessary because “Couser has refused to communicate” with habeas counsel and “therefore, a court-ordered deposition will be required in preparation for the evidentiary hearing on these claims.” (Dkt. 140 at 194.) Petitioner does not identify what evidence would be presented at a hearing. In addition, the Court granted Petitioner’s request for an ex parte deposition of Couser precisely because ha-beas counsel averred that Couser would not voluntarily discuss the case. (Dkt. 98 at 4.) Petitioner states in his amended petition that the deposition was taken on April 4, 2000 (Dkt. 103 at 8); nonetheless, Petitioner proffers no excerpt to support any claims of ineffectiveness against Couser. Petitioner’s unsupported, conclusory allegations are insufficient to warrant a hearing. Williams, 384 F.3d at 588.

Claim 2-A: Violation of the Fifth, Eighth and Fourteenth Amendments based on the prosecution’s failure to disclose that State witnesses possessed information from which the prosecution allegedly concluded the victim had been buried by her assailant.

In April 1985, a skull, lower jaw bone (mandible), and numerous smaller bones later identified as the victim’s were found in a desert area in northwest Tucson. (RT 2/18/87 PM at 112; RT 2/23/87 at 158-62; RT 2/27/87 at 38, 51-52; RT 3/2/87 AM at 44.) All but the skull showed signs of carnivore and rodent tooth marks. (RT 2/27/87 at 39, 52.) Dr. Richard Froe-de, the chief medical examiner for Pima County, testified at trial that he found adipocere, a substance formed by moisture and bacteria during postmortem decomposition, on some of the fragments of tissue attached to the bones. (Id. at 37, 41-43.) He explained that adipocere develops in specific time intervals and, therefore, its presence helped establish the time of death. (Id. at 37.) Dr. Froede further explained that adipocere only forms in moist conditions, with a temperature above seventy degrees, and that there had been a good deal of rain toward the end of the first week after the victim’s disappearance in the area where her remains were later found. (Id. at 42-43.) He did not find any adipocere on the skull or mandible. (Id. at 52.) Dr. Froede was assisted in his examination and identification of the victim’s remains by Dr. Walter Birkby, a forensic anthropologist. (Id. at 35.)

Petitioner alleges that Drs. Froede and Birkby, during pretrial interviews, led his counsel to believe there was no “scientific relevance” to the adipocere finding. (Dkt. 103 at 32; Dkt. 140 at 33.) He further alleges that, subsequent to trial, these experts revealed that