Bible v. Schriro (497 F. Supp. 2d 991, 2007)

MEMORANDUM OF DECISION AND ORDER

ROSENBLATT, District Judge.

On October 15, 1998, Richard Lynn Bible (“Petitioner”) filed a Petition for Writ of Habeas Corpus alleging that he is imprisoned and sentenced to death in violation of the United States Constitution. (Dkt.l.) An Amended Petition filed on August 2, 1999, presented twenty-two claims for relief, including numerous sub-claims. (Dkt.29.) In an Order dated September 2, 2004, the Court found that the entirety of Claims 12, 18, 19, 21, and 22, along with parts of Claims 3, 8-10, 13-16, and 20, were procedurally barred. (Dkt.79.) The Court found that Claims 1-11, 13-17, and 20 were properly exhausted, in whole or in part. (Id.) On January 20, 2005, Respondents filed an answer addressing the merits of the non-defaulted claims. (Dkt.90.) Petitioner filed a reply on August 10, 2005 (Dkt.98.)

This Order addresses the merits of Petitioner’s properly exhausted claims. For the reasons set forth herein, the Court concludes that Petitioner is not entitled to habeas relief.

BACKGROUND

A jury convicted Petitioner of the kidnapping, molestation, and murder of a nine-year-old girl named Jennifer Wilson. The court sentenced him to death. The following facts are supported by this Court’s review of the entire record and, unless otherwise indicated, are taken from the decision of the Arizona Supreme Court in State v. Bible, 175 Ariz. 549, 858 P.2d 1152 (1993).

In late May 1987, Petitioner was released from prison after serving a sentence imposed in 1981 for the kidnapping and rape of his seventeen-year-old cousin.

In April 1988, the Coconino County Sheriff seized a dark green and white GMC “Jimmy” vehicle in Sedona, Arizona. The vehicle had a damaged left rear quarter panel. Officers also noticed that rubber bands were scattered within the vehicle. The vehicle was stored in a fenced impound lot near Flagstaff, close to an area known as Sheep Hill. On June 5, 1988, Petitioner stole the GMC from the impound lot. An officer saw the vehicle parked in Flagstaff later that day.

The next day, June 6, 1988, shortly after 10:30 a.m., Jennifer Wilson began bicycling from her family’s lodgings in Flagstaff to a ranch a mile away. Her family passed her while driving to the ranch in their tan-colored pickup truck. When the child did not arrive at the ranch, the family set out to search for her. They found her bicycle by the side of the road. Jennifer’s mother, Nancy Wilson, called the police at 11:21 a.m.

The Flagstaff police arrived within minutes. They called in a helicopter, set up roadblocks, and alerted the FBI. Mrs. Wilson told the police that she saw two vehicles on her way to the ranch. One was a royal blue Blazer-type vehicle. While at the ranch, she saw this same vehicle going the opposite direction at a high rate of speed. She described the driver as a Caucasian male in his mid-to-late twenties, with dark hair and a dark complexion, possibly wearing a white t-shirt. According to Mrs. Wilson, the man had looked at her intently.

That same day, Petitioner arrived at his brother Wesley’s home near Sheep Hill shortly before 1:00 p.m., driving a dark green or dark silver, white-top Blazer-type vehicle with a dented left bumper. Petitioner was wearing jeans, a plaid shirt, a camouflage baseball-type cap, and boots. He told Wesley that the Blazer belonged to a friend. After Petitioner left, Wesley called the police and described the vehicle. A neighbor boy also witnessed Petitioner’s presence at Wesley’s house. (RT 3/9/90 at 135.) The boy phoned his mother, who then called Petitioner’s mother; Petitioner’s mother called the sheriff. (Id. At 159— 61.)

. Shortly thereafter, a detective realized that Mrs. Wilson’s description of the Blazer-type vehicle and its driver approximated Petitioner and the GMC Jimmy. At about 5:00 p.m., the GMC was discovered missing from the impound lot. At 6:20 p.m., police officers saw Petitioner driving the GMC, which had been painted a different color. The officers attempted to stop Petitioner, and a high-speed chase began. Petitioner finally drove the vehicle off the road and into a cattle guard; he exited the vehicle while it was still moving and ran into the forest.

Using a tracking dog, officers found Petitioner hiding under a ledge, where he had camouflaged himself with branches and debris. Petitioner was wearing a “levi-type” jacket, jeans, a plaid shirt, and boots; he was not wearing underwear. He was carrying wool gloves, despite the summer heat. Nearby, police located a baseball-type cap. Police also found a large folding knife in Petitioner’s hiding place and another knife in one of his pockets.

Petitioner confessed that he had stolen the GMC the previous day and painted the vehicle two hours before his arrest, but denied being in the area of the abduction. He explained that he had planned to drive the GMC to Phoenix, but a helicopter had him “pinned down.”

In the GMC, police found a green blanket and numerous rubber bands but no rubber band bags. The steering column had been cut open and a piece of metal had fallen to the floorboard. The vehicle contained a case of twenty 50-milliliter bottles of “Suntory” vodka; two bottles were missing. In the vehicle’s console was a wrapped cigar broken in two places; a “Dutchmaster” cigar wrapper and band were in the ashtray. The vehicle also contained Carnation “Rich” hot chocolate packets. Investigators found blood smeared inside and under the GMC; testing failed to reveal whether the blood was human.

Despite an intensive search involving multiple law-enforcement agencies, Jennifer Wilson’s body was not found until June 25, nearly three weeks after her disappearance, when a couple walking in the Sheep Hill area discovered items of children’s clothing and notified the police. Officers located Jennifer’s naked body at the top of the hill. It was hidden under a tree, mostly covered branches and debris. Jennifer’s hands were tied behind her back with a shoelace.

Police secured thé area that night and returned the next morning to process the scene. They found one ' of the child’s sneakers, without a shoelace, near the body. Her panties were in a tree. An unwrapped, unsmoked cigar with two breaks in the middle was on the ground near the body. This cigar and the cigar found in the GMC appeared very similar; they had ■ consistent breaks and identical seals. Microscopic analysis showed that the cigars had similar thresh cuts, tobacco mixtures, sieve test results, and pH values. The cigars were from the same lot; the tobacco was indistinguishable from residue found in Petitioner’s shirt pockets.

An empty ten-pack box of Carnation “Rich” hot chocolate — matching the packets in the GMC — was found near the body. Also nearby were two empty 50-milliliter “Suntory” vodka bottles, identical to the full bottles found in the GMC. No fingerprints were found on the bottles.

Rubber bands were scattered throughout the scene: on a path near the body; over, on, and under the body; in the tree where the panties were hanging; near other items of Jennifer’s clothing; in the brush covering the body; in a tree above the body; and under a tree where one of Jennifer’s shoes was found. Visual observation and testing revealed that the rubber bands in the GMC were identical to those found near the body. A rubber band bag containing a few rubber bands was found five feet from the body.

. There was a patch of blood-matted grass near. Jennifer’s body. Testing revealed that this blood was human and was phos-phoglucomutase (“PGM”) subtype 2+, the same subtype as the victim’s blood. Lumi-nol spraying revealed a faint blood trail leading from the blood-matted grass to the body. Blood was also present on the top of the branches covering the body.

Near the body, police found a piece of metal that fit the GMC’s steering column. In Flagstaff, at the location where the GMC was seen parked the day before the victim disappeared, police found another piece of metal from the vehicle’s steering column. The three metal pieces — found inside the GMC, near the body, and where the GMC had been parked — fit together like jigsaw puzzle pieces. An investigator concluded that the three metal pieces were part of the GMC’s steering column.

The condition of the body was consistent with having been on Sheep Hill for approximately three weeks. Multiple skull fractures and a broken jawbone indicated that blows to the head, probably with a heavy blunt object, were the cause of death. (RT 2/29/90 at 152.) The blood-matted grass near the body was consistent with the blows being inflicted there. Although the body was naked with the hands tied, suggesting sexual molestation, no sperm or semen was found, possibly because the victim’s genital region, like her head, was severely decomposed. (Id. at 138.)

Near the body were several clusters of golden brown hair approximately six to ten inches long. The hair found at the scene was microscopically similar to Jennifer’s hair and could have come from her. In one of the locks of hair, an examiner found a pubic-type hair, which was similar to Petitioner’s pubic hair samples. Hair found on Petitioner’s jacket, shirt, and in his wallet were similar to Jennifer’s hair and could have come from her. Investigators also found hair similar to Petitioner’s on a sheet used to wrap the body and on Jennifer’s t-shirt. Hair on a blanket in the GMC was similar to the Jennifer’s; a total of fifty-seven hairs in the GMC were consistent with her hair.

Some of the hair found near the body, as well as the hair on Petitioner’s shirt and in his wallet, and hairs found inside the vehicle, was cut on one side and torn on the other. The investigator had never before seen such a cut/tear pattern but was able to duplicate the pattern by using the knives Petitioner possessed when arrested. Twenty-one of the twenty-two hairs on Petitioner’s jacket had similar cut/tear patterns.

Fibers found at Sheep Hill were identical to the GMC’s seat covers, and similar to fibers from Petitioner’s jacket lining and the green blanket in the GMC. Fibers in the lock of hair containing the pubic-type hair were similar to fibers from Petitioner’s jacket. Fibers similar to those from the green blanket in the GMC were located in the branches covering the body. A green fiber on the sheet used to wrap the body was microscopically similar to fibers from the green blanket. A blue or purple fiber on the shoelace tying the victim’s hands was similar to the lining in Petitioner’s jacket.

Investigators found blood on Petitioner’s shirt, pants, and boots. The spatter pattern on the shirt was consistent with beating force. Testing could not determine whether the blood on his boots was human but revealed that the blood on Petitioner’s shirt was human and the same subtype as Jennifer’s blood, a subtype shared by less than three percent of the population.

On August 4,1988, Petitioner was indicted on counts of first-degree murder, kidnapping, and molestation of a child under the age of fifteen. In April 1990, after a six-week trial, a jury convicted him of all charges.

Following a sentencing hearing in June 1990, the trial court found as aggravating factors that: (1) Petitioner had been convicted previously of a felony involving the use or threat of violence, pursuant to A.R.S. § 13-703(F)(2), based on the 1981 conviction for kidnapping and sexual assault; (2) Petitioner committed the murder in an especially cruel manner, under § 13-703(F)(6); and (3) Petitioner was an adult and the victim was less than fifteen years of age, under § 13-703(F)(9). The court found no mitigation. Concluding that any one of the aggravating factors alone was sufficient to warrant a death sentence, the trial court sentenced Petitioner to death for the murder.

On appeal, the Arizona Supreme Court held that the judge erred in finding that Petitioner’s 1981 conviction qualified as a crime involving the use or threat of violence, but nonetheless affirmed the death sentence in light of the de minimis mitigation evidence. Bible, 175 Ariz. at 604, 609, 858 P.2d at 1207, 1212. Petitioner unsuccessfully petitioned for a writ of certiorari. Bible v. Arizona, 511 U.S. 1046, 114 S.Ct. 1578, 128 L.Ed.2d 221 (1994).

On November 29, 1996, Petitioner filed a Petition for Post-conviction Relief (“PCR”) pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. The PCR court declined to hold an evidentiary hearing and, in November 1997, denied relief. (ME 11/24/97.) On December 27, 1997, Petitioner sought review in the Arizona Supreme Court, which summarily denied the petition in September 1998. Petitioner thereafter commenced these proceedings.

AEDPA STANDARD FOR RELIEF

Petitioner’s habeas claims are governed by the applicable provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA). See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). The AEDPA established a “substantially higher threshold for habeas relief’ with the “acknowledged purpose of 'reducing delays in the execution of state and federal criminal sentences.’ ” Schriro v. Landrigan, — U.S. -, 127 S.Ct. 1933, 1939-40, 167 L.Ed.2d 836 (2007) (quoting Woodford v. Garceau, 538 U.S. 202, 206, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003)). The AEDPA’s ‘“highly deferential standard for evaluating state-court rulings’ ... demands that state-court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam) (quoting Lindh, 521 U.S. at 333 n. 7, 117 S.Ct. 2059).

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, 127 S.Ct. 649, 653 (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; see Musladin, 127 S.Ct. at 654; Casey v. Moore, 386 F.3d 896, 907 (9th Cir.2004). 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. 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; Landrigan, 127 S.Ct. at 1939; Visciotti 537 U.S. at 25, 123 S.Ct. 357.

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.” Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (Miller-El I); see Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir.2004). 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); Landrigan, 127 S.Ct. at 1939-40; Miller-El II, 545 U.S. at 240, 125 S.Ct. 2317. However, it is only the state court’s factual findings, not its ultimate decision, that are subject to 2254(e)(l)’s presumption of correctness. Miller-El I, 537 U.S. at 341-42, 123 S.Ct. 1029 (“The clear and convincing evidence standard is found in § 2254(e)(1), but that subsection pertains only to state-court determinations of factual issues, rather than decisions.”).

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).

DISCUSSION

In addition to the standards discussed above, the Court’s review of Petitioner’s claims is guided by two fundamental, related, principles. The first of these concerns the limited role of habeas review and recognizes that “[d]ireet review is the principal avenue for challenging a conviction.” Brecht v. Abrahamson, 507 U.S. 619, 633, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Therefore, as the Supreme Court has explained:

When the process of direct review ... comes to an end, a presumption of finality and legality attaches to the conviction and sentence. 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).

The second principle is that, in the context of habeas review, an error at trial is harmless unless it had a “ ‘substantial and injurious effect or influence in determining the jury’s verdict.’ ” Brecht v. Abrahamson, 507 U.S. at 637, 113 S.Ct. 1710 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). Therefore, trial errors are often found harmless where the record is replete with overwhelming evidence of the petitioner’s guilt. See Neder v. United States, 527 U.S. 1, 18-19, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). In the instant case, as the Arizona Supreme Court observed, the evidence of Petitioner’s guilt, even with the exclusion of the DNA evidence linking him to the crimes, is “far beyond overwhelming”; it is “not only inconsistent with any reasonable hypothesis of innocence, it refutes any hypothesis other than [Petitioner’s] guilt.” Bible, 175 Ariz. at 589, 858 P.2d at 1192.

In addition to these legal principles, a further reality informs much of the following analysis. Petitioner’s trial was the first Arizona case in which the State sought to introduce DNA evidence. Forensic evidence and the novel scientific analysis to which it was subjected were the focus of the trial. The efforts of all the participants, including defense counsel, were necessarily directed toward this pioneering aspect of the case.

The Court now turns to the merits of Petitioner’s habeas claims.

Pretrial Publicity and Voir Dire

Petitioner alleges that his right to a fair trial was violated by the trial court’s failure to grant his motion for a change of venue based on excessive and prejudicial pretrial publicity (Dkt. 29 at 10-14), by the hostile and inflamed atmosphere at trial (id. at 14-20), and by the inadequate voir dire process engaged in by the court (id. at 22-26).

Background:

On December 9, 1988, Petitioner filed his first motion for a change of trial site; he filed a supplement to the motion on February 10, 1989. (ROA 174; ROA 246.) The motion summarized dozens of news items dating from June 1988 to February 1989. These items reported, inter aha, that Petitioner had committed other crimes, had failed a polygraph test, and had attempted to escape from jail; the articles also referred to other evidence subsequently deemed inadmissible at trial. The trial court held a hearing on Petitioner’s motion. Petitioner presented several witnesses, including a television news director (RT 2/10/89 at 4) and the Coconino County Sheriff (id. at 11). The sheriff acknowledged speaking with reporters about the results of Petitioner’s polygraph examination and his criminal record. (Id. at 14.) Petitioner presented and the court admitted copies of newspaper articles and other electronic media reports. Petitioner also argued that the State’s practice of incorporating prejudicial information in its motions generated adverse publicity.

The court denied the change of venue motion, finding that “the media coverage has been appropriate and covered in a professional manner. The coverage has been ordinary for a high profile case.” (ME 2/10/89 at 2.) The court concluded that “the Defendant has failed to carry his burden of showing that he would receive an unfair trial in Flagstaff.” (Id.) Petitioner subsequently filed a motion for reconsideration (ROA 375); the court heard argument the day before trial began. The court again denied the motion but stated that “if it later became obvious that there cannot be a fair jury, the motion would be reconsidered.” (ME 3/5/90 at 1.) Petitioner did not renew the motion.

With respect to jury selection, the parties agreed that the initial voir dire process should be conducted through the use of a written questionnaire. Defense counsel drafted the questionnaire and submitted it to the prosecutor and the court. Despite the prosecutor’s complaints, the court used Petitioner’s questionnaire as submitted. (See RT 2/20/90 at 17; RT 3/1/90 at 1-11.)

The thirty-page questionnaire contained fifty-six questions, many with several sub-parts. (ROA 486.) The questions addressed the potential jurors’ knowledge of the case and the source of such information. (Id.) Additional topics included the news media and perceptions of media accuracy, law enforcement, scientific testing, and the death penalty, as well as the prospective jurors’ familiarity with Petitioner and potential witnesses. (Id.) The questionnaire also discussed the standard of proof and the jurors’ frame of mind if they were to “sit in judgment.” (Id) Each potential juror filled out and signed his or her individual questionnaire under oath and in the court’s presence.

By February 26, 1990, 187 potential jurors completed written questionnaires. Almost all of the 187 had heard about the case, approximately two-thirds had discussed the case, and approximately one-half had an opinion about Petitioner’s guilt. Bible, 175 Ariz. at 563, 858 P.2d at 1166. As characterized by the questionnaire, such opinions were either “qualified” or “unqualified.” Of the fourteen jurors who heard the case, all had been exposed to some publicity about the case, more than half were familiar with the State’s investigators, half had discussed the case, and two jurors — one of whom became an alternate — had a “qualified” opinion as to guilt at the time they answered the jury questionnaire. Id. However, all of the jurors answered that they could set aside what they had heard and decide the case fairly and impartially. Id. at 566, 858 P.2d at 1169.

Defense counsel had “no objection to the Judge deciding who should be removed for cause.” (RT 3/1/90 at 9.) After reviewing the completed questionnaires, the trial court, sua sponte, struck a total of 106 of the 187 venire members for cause. (RT 3/5/90 at 2.) On the parties’ motions, the court struck several other venire members for cause. (ME 3/5/90, 3/6/90.) Fifteen additional venire members failed to appear or were excused for personal reasons, leaving sixty-one individuals for jury selection. See Bible, 175 Ariz. at 566, 858 P.2d at 1169.

Petitioner filed a motion for individual voir dire. (ROA 371.) The court ruled that, absent good cause, it would conduct oral voir dire and that individual voir dire would “be permitted only in extreme circumstances.” (ME 3/1/90.) Before oral voir dire, the judge met with counsel to discuss the questions he proposed asking the potential jurors; defense counsel did not object to the court’s proposals. (RT 3/6/90 at 5-6.) The court then conducted a brief, general oral voir dire of the panel of sixty-one. (Id. at 42-55.) During this portion of voir dire, the court addressed the issue of pretrial publicity:

Quite a few of you answered [on the questionnaire] that you knew something about this case because of, oh, the newspapers or information that you got from other sources, because it has been in the news, and we are not surprised that many of you know about it.

We went on further to ask whether you had formed some kind of opinion about guilt or innocence based on what you had heard coming in here, and whether you could keep an open mind.

I want to tell you what a bit more about what the law is in this area. It is all right if you know something about the case, even if you may have formed a tentative opinion about it, if you can put that opinion aside.

Now here is what the law says. It is your duty as a juror to determine the facts. Facts means what actually happened. You must determine the facts only from the evidence produced in court.

So this is what counts, not what you have read outside, not what you may have heard commented on or anything else.

You should know nothing has been proven, and until it’s proven right here in court, until the jury in this case makes decisions on it, so let’s be sure we all understand each other on this. Is there anyone here whose mind is so firmly made up ahead of time that you cannot keep an open mind and base your verdict solely on evidence presented in court?

(No response indicated.)

Okay. I see no hands.

(Id. at 46-47.)

A panel of thirty-four was then drawn. (Id. at 55-56.) This panel answered additional voir dire questions. (Id. at 57-67.) Both parties passed the panel and exercised their peremptory strikes. (Id. at 66-68.)

The trial court first addressed the issue of pretrial publicity early in the case, when it heard Petitioner’s motion to close the proceedings. The court denied the motion, finding that “the media coverage in this case ... has been competent, professional, and non-hysterical.” (ME 10/27/88.) The judge allowed one camera in the courtroom, but prohibited photographs of the jurors. (Id.; see ME 3/5/90; RT 3/6/90 at 81.)

Not surprisingly, the trial was conducted in an atmosphere of high emotion. At one point while listening to trial testimony, Richard Wilson, the victim’s father, hurriedly left his seat and exited the courtroom, shouting an obscenity when he entered the hallway. (RT 3/28/90 at 205.) The court denied Petitioner’s motion for a mistrial, but banned Mr. Wilson from the remainder of the proceedings. (ME 3/28/90 at 3.)

Claim 1: Petitioner’s Fifth, Sixth, and Fourteenth Amendment rights to due process and a fair and impartial jury were violated by the trial court’s refusal to change venue.

Claim 2: The atmosphere at trial, coupled with the pretrial publicity, deprived Petitioner of his right to a fair trial in violation of the Fifth and Fourteenth Amendments.

Clearly established federal law:

A criminal defendant in entitled to a fair trial by “a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Therefore, “if pretrial publicity makes it impossible to seat an impartial jury, then the trial judge must grant the defendant’s motion for a change of venue.” Casey v. Moore, 386 F.3d at 906 (citing Harris v. Pulley, 885 F.2d 1354, 1361 (9th Cir.1988)).

The Supreme Court has discussed two types of prejudice resulting from pretrial publicity: presumed prejudice, where the setting of the trial is inherently prejudicial, and actual prejudice, where voir dire is inadequate to offset extensive and biased media coverage. See Murphy v. Florida, 421 U.S. 794, 798, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975).

A court presumes prejudice only in the face of a “trial atmosphere utterly corrupted by press coverage,” Dobbert v. Florida, 432 U.S. 282, 303, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), or a “wave of public passion that would make a fair trial unlikely by the jury,” Patton v. Yount, 467 U.S. 1025, 1040, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984). The presumption of prejudice is “rarely applicable and is reserved for an ‘extreme situation.’ ” Harris v. Pulley, 885 F.2d at 1361 (internal citations omitted). The United States Supreme Court has found presumed prejudice in only three cases: Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); Estes v. Texas, 381 U.S. 532, 536, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); and Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966).

Where prejudice is not presumed, a defendant bears the burden of proving that pretrial publicity probably deprived him of a fair trial. It is well established that jurors need not “be totally ignorant of the facts and issues involved.” Irvin, 366 U.S. at 722, 81 S.Ct. 1639. Rather, “[i]t is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” Id. at 723, 81 S.Ct. 1639; see Patton, 467 U.S. at 1035, 104 S.Ct. 2885 (“The relevant question is not whether the community remembered the case, but whether the jurors ... had such fixed opinions that they could not judge impartially the guilt of the defendant.”).

To assess whether actual prejudice-existed, the court looks at voir dire of the individual jurors. The Supreme Court has explained that a factor in gauging the reliability of juror assurances of impartiality is the percentage of venire members who “will admit to a disqualifying prejudice”; the greater the percentage of members admitting to a previously formed opinion, the greater the concern over the reliability of the voir dire responses from the remaining potential jurors. Murphy, 421 U.S. at 803, 95 S.Ct. 2031; see Harris v. Pulley, 885 F.2d 1354, 1364 (9th Cir.1988).

Pretrial publicity can also contribute to a violation of a defendant’s fair trial rights by denying him a courtroom characterized by “judicial serenity and calm.” Estes v. Texas, 381 U.S. 532, 536, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); see Sheppard, 384 U.S. at 355, 86 S.Ct. 1507. Thus, a defendant is denied a fair trial when the proceedings are “entirely lacking in the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of a mob.” Murphy, 421 U.S. at 799, 95 S.Ct. 2031.

State court decision:

The Arizona Supreme Court, engaging in a thorough review and analysis of Petitioner’s claims, rejected Petitioner’s contention that he was denied a fair trial due to excessive and prejudicial pretrial publicity. Bible, 175 Ariz. at 563-69, 858 P.2d at 1166-72. In making its rulings, the court applied controlling Supreme Court precedent, including Rideau, Irvin, Sheppard, Murphy, and Patton. Id.

The court first ruled that Petitioner failed to meet his burden with respect to a showing of presumed prejudice. . Comparing the publicity in Petitioner’s case to that in cases, including Rideau and Sheppard, where reviewing courts had found presumed prejudice, the Arizona Supreme Court explained that “[tjhese cases show more in the way of inaccurate as well as extremely prejudicial pretrial publicity than does the totality of the record in this case. These cases also demonstrate the media’s successful and sometimes relentless attempt to whip up hysteria and passion in the community — something the present case lacks.” Id. at 565, 858 P.2d at 1168. The court further observed that the “substance” of the publicity in Petitioner’s case was not “comparable” to that found in other presumed-prejudiee cases, including Rideau, “where a local television station thrice showed the Petitioner’s confession.” Id.

The court next determined that Petitioner could not show that he suffered actual prejudice due to pretrial publicity. Id. at 566-67, 858 P.2d at 1169-70. The court noted that after the trial court excused 111 potential jurors, less than twenty-five percent of the remaining sixty-one venire members had a qualified opinion regarding guilt and only two of those individuals served; furthermore, no member had an unqualified opinion of Petitioner’s guilt, and all the jurors who actually served on the case indicated that they could set aside their qualified opinions and decide the case based on evidence produced at trial. Id. at 566, 858 P.2d at 1169. With respect to these figures, the court also explained that Petitioner’s case was not one “where the voir dire record itself shows that pervasive pretrial publicity so tainted the venire that jurors’ statements under oath regarding their ability to set aside preconceptions and render a verdict on the evidence must be rejected.” Id. n. 6. While the court noted that there was not “an extensive oral voir dire record,” it nevertheless concluded that “[gjiven the questionnaire answers and the record before us, Petitioner has not shown actual prejudice. Accordingly, we reject his claim that pretrial publicity caused actual prejudice requiring a change in venue.” Id. at 566-67, 858 P.2d at 1169-70.

The Arizona Supreme Court next rejected Petitioner’s claim that the atmosphere of the courtroom combined with the publicity to deny him a fair trial. Id. at 567-69, 858 P.2d at 1170-72. In support of this claim, Petitioner offered newspaper articles reporting several incidents — for example, that the victim’s family members and other spectators wore small pink bows during trial, that several of the jurors and the judge cried as the parents of the victim testified, and that a sheriff came close to weeping when testifying. Id. at 567, 858 P.2d at 1170. The court found that these reports, standing alone, were insufficient to support a finding that the trial atmosphere was so prejudicial as to deprive Petitioner of a fair trial. Id. at 568, 858 P.2d at 1171. The court distinguished the circumstances of Petitioner’s trial from those in cases where the atmosphere was so carnival-like or inflammatory that it violated the defendant’s right to a fair trial: “Unlike Estes, there is no suggestion that the media took over the proceedings. And distinguishable from Sheppard, there is no indication that the court so accommodated the public that the proceedings were constitutionally unfair.” Id. While noting that some of the incidents described by the newspaper articles were “disturbing,” the court declined to presume prejudice because, apart from the articles, Petitioner presented no evidence concerning courtroom events. Id.

Analysis:

This Court has independently reviewed the record, examining the media reports for “volume, timing, and content.” Harris v. Pulley, 885 F.2d at 1360. Trial began on March 6, 1990, some twenty-one months after the disappearance of Jennifer Wilson and Petitioner’s arrest. In the year prior to the trial, thirty-nine items appeared in the print media, thirty in the local paper, the Arizona Daily Sun, and nine in the Arizona Republic. (ROA 174; see Dkt. 98, Ex. 2.) All but two of the items were factual articles, reporting on developments in the case; there was also one editorial and one letter to the editor. (Id.) From June 8 to December 1, 1988, sixty-six print items appeared. (Id.) The record also contains what appears to be transcripts or summaries of some eighteen radio or television broadcasts, all of which are factual in nature. {Id.)

As the Arizona Supreme Court accurately observed, “Some reports are duplicates, containing similar material published in different newspapers; some do not mention Defendant; and several state that Defendant was not a suspect or not a strong suspect. For the most part, the reports are factually based, and nearly all of the factual information reported in the articles was admitted at trial.” Bible, 175 Ariz. at 564, 858 P.2d at 1167. In addition, some articles identified a different potential suspect, while others reported defense theories of the case. However, as the court also noted, some articles were clearly prejudicial in nature, though even these items contained balancing information:

For example, a June 10, 1988, article has the Sheriff stating that Petitioner “ ‘flunked’ a he detector test.” Petitioner is described as a convicted “child molester” who committed “child rape”— incorrect descriptions of his 1981 sexual assault conviction. A June 28, 1988, article reported a Phoenix-area legislator suggesting the death penalty for child molesters “even if it means the execution ‘of a few innocent people.’ ” The article, however, added that the suggestion prompted protests, that the proposal was unconstitutional, and contained another legislator’s response criticizing the suggestion as “ ‘an affront and outrageous’ ” and not reflecting appropriate legislative “ ‘wisdom and leadership.’ ” A January 28, 1990, article has an inmate stating that Petitioner admitted involvement in the victim’s abduction. The article adds, however, that the inmate recanted and repeatedly changed his story.

Id. at 564, 858 P.2d at 1167.

The Arizona Supreme Court’s characterization of the records thus comports with this Court’s review. Based upon that review, the Court also concludes that Petitioner has not met his burden of showing either form of prejudice.

Presumed prejudice

While Petitioner’s case generated substantial media interest, the nature of the coverage is distinguishable from the publicity present in those cases where prejudice has been presumed. Most significantly, the media coverage of Petitioner’s case was neither as pervasive nor as inflammatory as that in cases where the United States Supreme Court found presumptive prejudice, including Rideau and Sheppard, cases where the “Court overturned a state-court conviction obtained in a trial atmosphere that had been utterly corrupted by press coverage.” Murphy, 421 U.S. at 798, 95 S.Ct. 2031.

In Rideau, the defendant’s detailed twenty-minute confession was broadcast on television three times; nearly 100,000 people saw or heard the broadcast, in a community of 150,000. 373 U.S. at 724, 83 S.Ct. 1417. “What the people of Calcasieu Parish saw on their television sets was Rideau, in jail, flanked by the sheriff and two state troopers, admitting in detail the commission of the robbery, kidnapping, and murder, in response to leading questions by the sheriff.” Id. at 725, 83 S.Ct. 1417. The Court explained that the televised confession “was Rideau’s trial,” and “[a]ny subsequent court proceedings in a community so pervasively exposed to such a spectacle could be but a hollow formality.” Id. at 726, 83 S.Ct. 1417.

In Sheppard, “massive, pervasive and prejudicial publicity” prevented the defendant from receiving a fair trial. 384 U.S. at 335, 86 S.Ct. 1507. Much of the publicity was not fact-based or objective but sensational and openly hostile. For example, articles “stressed [Sheppard’s] extra marital love affairs as a motive for the crimes.” Id. at 340, 86 S.Ct. 1507. Editorials characterized him as a liar and demanded his arrest. Id. at 341, 86 S.Ct. 1507. Other articles described evidence that was never produced at trial. Id. at 340, 86 S.Ct. 1507. The Supreme Court described the atmosphere in which Sheppard’s trial occurred:

For months the virulent publicity about Sheppard and the murder had made the case notorious. Charges and counterc-harges were aired in the news media besides those for which Sheppard was called to trial. In addition, only three months before trial, Sheppard was examined for more than five hours without counsel during a three-day inquest which ended in a public brawl. The inquest was televised live from a high school gymnasium seating hundreds of people.

Id. at 354, 86 S.Ct. 1507. Despite the extent and tone of this pretrial publicity, the trial court denied Sheppard’s motion for a change of venue or a continuance. Id. at n. 9.

The publicity engendered by Petitioner’s case presents a stark contrast with the media excesses which presumptively deprived the defendants of a fair trial in Rideau and Sheppard. There was no televised confession. The reports were almost exclusively fact-based and objective. See Ainsworth v. Calderon, 138 F.3d 787, 795 (9th Cir.1998), as amended, 152 F.3d 1223 (9th Cir.1998); Gallego v. McDaniel, 124 F.3d 1065, 1071 (9th Cir.1997). With very few exceptions, the items were not sensational or inflammatory, see Casey v. Moore, 386 F.3d at 908-09; Leavitt v. Arave, 383 F.3d 809, 826 (9th Cir.2004), and clearly lacked the virulence or hostility of the many of the stories reported in Sheppard. As an indication of the objectivity displayed by the press, several articles presented defense theories of the case and described alternative suspects (see, e.g., ROA 174y, 174bb, 174ggg, 174dddd, 174iiii); an early article indicated that Petitioner was no longer “as strong an investigative lead” as he had been (ROA 174cc). When the inflammatory opinions of a state legislator were printed, the Daily Sun responded with an editorial counseling restraint; the paper explained that “[o]ur constitutional system says we should first be sure we don’t jump to conclusions about who is guilty or innocent. To do otherwise is to misdirect our anger and grief.” (ROA 174hh.)

Based upon the quantity and quality of the media coverage, the Court concludes that Petitioner’s trial was not one of those rare cases where pretrial publicity transformed the proceedings into a “hollow formality.” Rideau, 373 U.S. at 726, 83 S.Ct. 1417.

Actual prejudice

As noted previously, approximately half of the original 168 potential jurors had an opinion concerning Petitioner’s guilt; according to Petitioner, forty-two members, or one-fourth of the total, had an unqualified opinion. (Dkt. 29 at 13.) Of the pool of sixty-one potential jurors remaining after the trial court’s excusáis for cause, none had an “unqualified” opinion as to Petitioner’s guilt. All of the jurors who determined Petitioner’s guilt had gained some familiarity with the case through exposure to the media. Two of the jurors had a “qualified” opinion concerning his guilt; the remaining ten had no opinion. All of the jurors answered under oath that they could set aside what they had heard and judge the case fairly and impartially.

Based upon these figures, and the answers provided by the jurors seated to hear the case, Petitioner cannot show actual prejudice; nor do the statistics from Petitioner’s case cause this Court to doubt the forthrightness of the juror’s answers. Instead, Petitioner’s case more closely resembles the situations in Murphy and Yount, where the Supreme Court held that the right to an impartial jury was not denied.

In Murphy, the Supreme Court found that an impartial jury was impaneled where twenty of seventy-eight panel members were excused because they had formed an opinion about the defendant’s guilt. 421 U.S. at 803, 95 S.Ct. 2031. As in Petitioner’s case, the voir dire in Murphy “indicate[d] no such hostility to petitioner by the jurors who served in his trial as to suggest a partiality that could not be laid aside.” 421 U.S. at 800, 95 S.Ct. 2031. In Yount, where the defendant was tried twice, publicity had revealed his prior conviction for murder, his confession, and his prior plea of temporary insanity, none of which were admitted as evidence at his second trial. 467 U.S. at 1027, 104 S.Ct. 2885. All but two of 163 venire members had heard of the case; 126 of 163 acknowledged that they had an opinion of the defendant’s guilt; and eight of the fourteen jurors and alternates actually selected admitted that at some point they had formed an opinion of the defendant’s guilt. Id. at 1029-30, 104 S.Ct. 2885. In addition, some of the seated jurors had provided ambiguous or contradictory voir dire responses regarding their opinion of the case. Id. at 1030, 104 S.Ct. 2885. Nevertheless, on habeas review the Supreme Court deferred to the trial court’s holding that the jurors were impartial because they did not hold a fixed opinion when they were seated as jurors. Id. at 1040, 104 S.Ct. 2885.

Circuit courts have reached the same conclusion when confronted with similar statistics. See, e.g., Ritchie v. Rogers, 313 F.3d 948, 957, 959 (6th Cir.2002) (four of twelve jurors seated had opinions that were “not firmly held” as to the defendant’s guilt); Hale v. Gibson, 227 F.3d 1298, 1331-33 (10th Cir.2000) (thirty-four of thirty-seven jurors questioned had prior knowledge of the case, twelve had opinions regarding defendant’s guilt, and six of those twelve were seated on the jury); see also United States v. Blom, 242 F.3d 799, 804-06 (8th Cir.2001) (on direct review, no actual prejudice where thirty-seven of seventy-five prospective jurors were struck for cause and all jurors selected had at least some knowledge that defendant, charged with being a felon in possession of firearms, was accused of a notorious abduction and murder, but each stated that he or she understood the kidnapping and murder charges were separate and that he or she could set aside pretrial publicity and render an impartial verdict based solely on the evidence presented at trial).

Similarly, the Ninth Circuit has consistently found that a defendant did not suffer actual prejudice due to pretrial publicity where each of the jurors who heard the ease swore that he or she could be fair and impartial. See, e.g., Casey v. Moore, 386 F.3d at 909 (“Not one juror seated on the eventual panel had said that he or she had definitely formed opinions about the case, and none harbored hostility against Casey that he or she said could not be set aside after hearing evidence.”); Leavitt v. Arave, 383 F.3d at 826-27 (“[N]o actual prejudice was shown here. On the contrary, each individual who was seated on Leavitt’s jury swore that he or she could impartially judge Leavitt’s guilt or innocence.”); Gallego v. McDaniel, 124 F.3d at 1071 (“None of the jurors were shown to have formed the opinion that Gallego was guilty of the crimes with which he had been charged. All of the jurors selected indicated they could follow the law”); Jeffries v. Blodgett, 5 F.3d 1180, 1189 (9th Cir.1993) (“[I]t is immaterial that almost all of the jurors had heard or read about the case prior to trial. All of these jurors swore under oath that they could impartially judge Jeffries’ guilt or innocence.”).

In Irvin v. Dowd, by contrast, over ninety percent of the 430 prospective jurors interviewed held some opinion as to guilt, 268 were dismissed for cause, and eight out of. the twelve jurors actually seated stated they believed the defendant was guilty. Irvin, 366 U.S. at 727, 81 S.Ct. 1639. Based on these facts, and the obvious hostility towards the defendant revealed during voir dire, the Supreme Court determined the defendant could not have received a fair trial. Id. In Rideau, three members of the jury that convicted him had stated on voir dire that they had seen and heard Rideau’s televised interview with the sheriff, and two members of the jury were deputy sheriffs of Calcasieu Parish. 373 U.S. at 724, 83 S.Ct. 1417. Rideau’s counsel had requested that these jurors be excused for cause, having exhausted all of their peremptory challenges, but the trial court denied the challenges. Id. at 725, 83 S.Ct. 1417.

Finally, as previously noted, the Arizona Supreme Court found that a fair and impartial jury had been empaneled. This is a factual determination entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1). See Thompson v. Keohane, 516 U.S. 99, 111, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995); Wainwright v. Witt, 469 U.S. 412, 429, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985); Yount, 467 U.S. at 1032, n. 7, 1036, 104 S.Ct. 2885; Hendricks v. Vasquez, 974 F.2d 1099, 1103 (9th Cir.1992); Lincoln v. Sunn, 807 F.2d 805, 814 (9th Cir.1987). Petitioner has not rebutted this presumption with clear and convincing evidence.

Trial atmosphere

In Claim 2, Petitioner alleges that the courtroom atmosphere was compromised by a number of factors which, combined with the pretrial publicity, rendered his trial unfair. Circumstances cited by Petitioner include an intrusive media presence, the fact that some spectators reportedly wore pink bows in support of the victim, the angry outburst by the victim’s father, and the overly emotional testimony of several witnesses. The Court disagrees that Petitioner’s right to a fair trial was violated.

First, the proceedings during Petitioner’s trial did not exhibit the level of chaos and the lack of decorum that characterized Sheppard and Estes, cases where a carnival-like trial atmosphere resulted in a violation of the defendant’s due process rights. In Estes, for example, the trial “had been conducted in a circus atmosphere, due in large part to the intrusions of the press, which was allowed to overrun it with television equipment.” Murphy, 421 U.S. at 799, 95 S.Ct. 2031. A two-day pretrial hearing was televised live and then replayed; the broadcasts reached 100,000 viewers. Estes, 381 U.S. at 550, 85 S.Ct. 1628. During the hearing, “the courtroom was a mass of wires, television cameras, microphones and photographers. The petitioner, the panel of prospective jurors, who were sworn the second day, the witnesses and the lawyers were all exposed to this untoward situation. The judge decided that the trial proceedings would be telecast.” Id. at 550-51, 85 S.Ct. 1628. The Supreme Court found that such media intrusion was inherently prejudicial due to its effect on the witnesses, the judge, the defendant, and, most significantly, on the “televised jurors,” who “cannot help but feel the pressures of knowing that friends and neighbors have their eyes on them.” Id. at 545, 85 S.Ct. 1628. Four of the jurors selected to hear the case had seen all or part of these pretrial broadcasts. Id. at 551, 85 S.Ct. 1628.

The proceedings in Sheppard were even less conducive to a fair trial. The trial was televised live; “bedlam reigned at the courthouse” and “newsmen took over practically the entire courtroom, hounding most of the participants in the trial”; a press table was erected within the bar, a few feet from the jury, at which twenty reporters sat “staring at Sheppard and taking notes.” 384 U.S. at 355, 86 S.Ct. 1507. Their presence made it impossible for the defendant and counsel to converse privately, id. at 344, 86 S.Ct. 1507, and there was “constant commotion within the bar,” which caused “frequent confusion and disruption of the trial,” id. at 355, 86 S.Ct. 1507. Outside of the courtroom, members of the media had “absolute free rein”; they thronged in the hallways and formed a “gantlet” through which participants in the trial, including the jurors, had to pass whenever they entered or exited the court. Id. at 355, 86 S.Ct. 1507. Moreover, the jurors were photographed throughout the trial, with the judge’s permission, and their pictures were printed in daily newspapers. Id. at 345, 86 S.Ct. 1507. Taking all these circumstances into account, together with the massive and unfair media coverage discussed above, the Supreme Court found that “the state trial judge did not fulfill his duty to protect Sheppard from the inherently prejudicial publicity which saturated the community and to control the disruptive influences in the courtroom.” Id. at 363, 86 S.Ct. 1507.

Nothing approaching this type of media circus or loss of control by the trial court occurred during Petitioner’s trial. As previously noted, the court allowed one television camera in the courtroom. The court advised the press that they were not to take pictures of the jurors. (ME 3/5/90; RT 3/6/90 at 81.) When presented with a report that one of the jurors might have been filmed, the court threatened to remove the cameraman from the courtroom:

Before we begin with testimony, I want to cover something I shouldn’t have to cover again because I went into it last week, and this is for the cameraman. Open your ears and listen, please. There are two rules concerning the use of a camera in this courtroom. Number one, don’t make a disturbance. Number two, don’t photograph jurors. One of the jurors reports that jurors were recognizably seen in some footage that was aired. That is inexcusable. If you are smart enough to run that camera, you are smart enough to understand these two rules.

If you do it again, you’ll pack up that camera and take it out of here. I don’t want to have this problem again.

(RT 3/20/90 at 35-36.)

Petitioner cites the small pink bows reportedly worn by spectators as another factor contributing to an unfair courtroom atmosphere. The Arizona Supreme Court considered this aspect of Petitioner’s claim and concluded that “[t]he mere fact, if it is a fact, that spectators wore ribbons to trial does not mandate reversal.” Bible, 175 Ariz. at 568, 858 P.2d at 1171. This decision is not an unreasonable application of clearly established federal law. Musladin v. Carey, 127 S.Ct. at 653-54 (because the Supreme Court had not yet addressed the effect on a defendant’s fair-trial rights of private-actor, as opposed to state-sponsored, courtroom conduct, state court decision denying a claim based on the wearing of buttons displaying victim’s photo was not contrary to clearly established federal law).

Petitioner also contends that the unfair atmosphere was exacerbated by Mr. Wilson’s emotional outburst. Immediately following the incident, the judge commented:

I think the record should reflect at this point that Richard Wilson went out of the courtroom obviously disturbed and yelled an obscenity which I’m sure the jury heard, as I did. I think it might be well to remind the jury what you are told at the beginning of the case, which is that you are not to base your decision in this case on emotion or prejudice or sympathy, not to base it, but to base it on the facts. You notice we don’t tell you not to have emotion or not to have sympathy, just that you don’t base your decision on that. You base it on the facts that are presented in court, so please disregard the outburst. I’m sure we can understand the feelings that were being vented, but that’s not the way decisions are made.

(RT 3/28/90 at 205-06.)

At the conclusion of the day’s testimony, defense counsel moved for a mistrial. (Id. at 214.) The court denied the motion, explaining:

I don’t think it’s really the substance for a mistrial. I don’t think there is any doubt in the jury’s mind about how Mr. Wilson feels about Mr. Bible. That’s certainly been clear for days. It’s just the venting of it in an inappropriate way that I think troubles us.

I don’t think the jury is going to make its decision based on what he said. I think they will base it on the evidence.

We do have to maintain an atmosphere of calm where we apply certain rules, see that the rules are followed in a civilized way. We definitely don’t want a trial turned into a shouting match.

I think what we really need to be concerned about is that nothing like this happen again. I would be very troubled if there were more of this.

(Id. at 218.)

As already noted, based upon these concerns, the court barred Mr. Wilson from the remainder of proceedings, stating, “I don’t see how I can risk a mistrial. If there’s another outburst like that, I might have to grant one. Nobody here wants that. It’s better to be safe than sorry.” (Id. at 221.)

The Arizona Supreme Court agreed with the trial court that this “sei’ious but isolated incident by a murder victim’s father” did not warrant a mistrial. Bible, 175 Ariz. at 598, 858 P.2d at 1201. The court reasoned:

The substance of his comment and its context make clear that strong emotion prompted the outburst. No information was conveyed other than the father’s animosity toward Defendant, a feeling that could hardly have surprised the jurors. In light of the nature of the outburst, the prompt instruction given the jury, and the exclusion of the victim’s father from the remainder of trial, we do not believe that the trial court abused its discretion in denying the motion for mistrial.

Id. This Court agrees.

The Seventh Circuit considered a similar, though more egregious, scenario in Whitehead v. Cowan, 263 F.3d 708, 723-26 (7th Cir.2001). Whitehead was accused of the aggravated kidnaping and murder of a five-year-old girl. Id. at 716. After the victim’s mother took the stand to testify, the judge retired to chambers with counsel and the court reporter, leaving the witness, the defendant, arid the jury in the courtro