Spreitz v. Ryan (617 F. Supp. 2d 887, 2009)

MEMORANDUM OF DECISION AND ORDER

JOHN M. ROLL, Chief Judge.

Christopher J. Spreitz (Petitioner) has filed an Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, alleging that he is imprisoned and sentenced to death in violation of the United States Constitution. (Dkt. 38.) For the reasons set forth herein, the Court determines that Petitioner is not entitled to habeas relief.

FACTUAL AND PROCEDURAL BACKGROUND

In the early morning hours of May 19, 1989, Petitioner was stopped by police because his car was smoking and leaking oil. His arms, legs, and shirt were smeared with blood and fecal matter, and he claimed he had been in a fight with another man. The officers asked Petitioner to accompany them to the scene of the fight. Petitioner agreed, but upon arrival there was no sign a fight had taken place. Another officer was brought in to take pictures of Petitioner, who consented to being photographed. Although the officers could smell beer on Petitioner’s breath, they did not believe he was impaired and released him with a repair order for his car.

Several days later, the naked and decomposing body of Ruby Reid was found in the desert on the outskirts of Tucson. At the scene, police officers observed tire tracks, oil stains, feces-stained pants, and a torn brassiere. Two blood-stained rocks lay next to the body.

Two days after the body’s discovery, during a chance encounter at the police station, the investigating detective discussed the Reid case with the officer who had taken photographs of Petitioner during the traffic stop. Believing Petitioner may have been involved with Reid’s death, the police executed an arrest warrant for outstanding traffic citations. While in custody, Petitioner confessed to killing Reid.

Petitioner was indicted in June 1989 for first degree murder, sexual assault, and kidnapping. Due to extensive pretrial litigation concerning admissibility of DNA evidence, trial did not commence until August 1994. During this lengthy period, Petitioner was represented by three attorneys: William G. Lane, from indictment through November 1991; M. Josephine Sotelo, a DNA specialist, from May 1991 to June 1994, when the trial court barred use of DNA evidence as a discovery sanction; and Marshall Tandy, from November 1991 through sentencing. A jury convicted Petitioner on all counts in August 1994. During the sentencing hearing, Petitioner apologized for killing Reid. (RT 12/21/94 at 12.) The trial judge sentenced him to death on the murder conviction.

On appeal, the Arizona Supreme Court affirmed. State v. Spreitz, 190 Ariz. 129, 945 P.2d 1260 (1997). On March 28, 2000, Petitioner filed a petition for post-conviction relief (PCR), which the PCR court denied without a hearing. The Arizona Supreme Court reversed the PCR court’s ruling that Petitioner’s ineffective assistance of counsel (IAC) claims were precluded but affirmed the court’s alternative ruling that the claims lacked merit. State v. Spreitz, 202 Ariz. 1, 39 P.3d 525 (2002).

Petitioner then initiated the instant habeas proceedings and filed an amended petition raising numerous claims for relief. (Dkt. 38.) He subsequently moved for an evidentiary hearing with respect to his IAC claims. The Court denied the motion without prejudice because Petitioner had not identified which claims required a hearing and had failed to explain what facts needed further development or how such facts would entitle him to relief. (Dkt. 56 at 4.) Petitioner filed a renewed motion for evidentiary development. (Dkt. 74.) The Court denied this motion as well, concluding that Petitioner had failed to diligently seek development of his IAC claims in state court. (Dkt. 89 at 37.) The Court also dismissed several of the claims on the merits. (Id. at 38.) This order addresses Petitioner’s remaining habeas claims.

PRINCIPLES OF EXHAUSTION AND PROCEDURAL DEFAULT

A writ of habeas corpus cannot be granted unless it appears that the petitioner has exhausted all available state court remedies. 28 U.S.C. § 2254(b)(1); see also Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). To exhaust state remedies, the petitioner must “fairly present” his claims to the state’s highest court in a procedurally appropriate manner. O’Sullivan v. Boerckel, 526 U.S. 838, 848, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999).

A claim is “fairly presented” if the petitioner has described the operative facts and the federal legal theory on which his claim is based so that the state courts have a fair opportunity to apply controlling legal principles to the facts bearing upon his constitutional claim. Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982); Picard v. Connor, 404 U.S. 270, 277-78, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). Unless the petitioner clearly alerts the state court that he is alleging a specific federal constitutional violation, he has not fairly presented the claim. See Casey v. Moore, 386 F.3d 896, 913 (9th Cir.2004). A petitioner must make the federal basis of a claim explicit either by citing specific provisions of federal law or federal case law, even if the federal basis of a claim is “self-evident,” Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir.1999), or by citing state cases that explicitly analyze the same federal constitutional claim, Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir.2003) (en banc).

In Arizona, there are two primary procedurally appropriate avenues for petitioners to exhaust federal constitutional claims: direct appeal and post-conviction relief proceedings. Rule 32 of the Arizona Rules of Criminal Procedure governs PCR proceedings and provides that a petitioner is precluded from relief on any claim that could have been raised on appeal or in a prior PCR petition. Ariz. R.Crim. P. 32.2(a)(3). The preclusive effect of Rule 32.2(a) may be avoided only if a claim falls within certain exceptions (subsections (d) through (h) of Rule 32.1) and the petitioner can justify why the claim was omitted from a prior petition or not presented in a timely manner. See Ariz. R.Crim. P. 32.1(d)-(h), 32.2(b), 32.4(a).

A habeas petitioner’s claims may be precluded from federal review in two ways. First, a claim may be procedurally defaulted in federal court if it was actually raised in state court but found by that court to be defaulted on state procedural grounds. Coleman, 501 U.S. at 729-30, 111 S.Ct. 2546. Second, a claim may be procedurally defaulted if the petitioner failed to present it in state court and “the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.” Id. at 735 n. 1, 111 S.Ct. 2546; see also Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir.1998) (stating that the district court must consider whether the claim could be pursued by any presently available state remedy). If no remedies are currently available pursuant to Rule 32, the claim is “technically” exhausted but procedurally defaulted. Coleman, 501 U.S. at 732, 735 n. 1, 111 S.Ct. 2546; see also Gray v. Netherland, 518 U.S. 152, 161-62, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996).

Because the doctrine of procedural default is based on comity, not jurisdiction, federal courts retain the power to consider the merits of procedurally defaulted claims. Reed v. Ross, 468 U.S. 1, 9, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984). As a general matter, the Court will not review the merits of a procedurally defaulted claim unless a petitioner demonstrates legitimate cause for the failure to properly exhaust the claim in state court and prejudice from the alleged constitutional violation, or shows that a fundamental miscarriage of justice would result if the claim were not heard on the merits in federal court. Coleman, 501 U.S. at 750, 111 S.Ct. 2546.

Ordinarily, “cause” to excuse a default exists if a petitioner can demonstrate that “some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Id. at 753, 111 S.Ct. 2546. Objective factors which constitute cause include interference by officials which makes compliance with the state’s procedural rule impracticable, a showing that the factual or legal basis for a claim was not reasonably available to counsel, and constitutionally ineffective assistance of counsel. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). “Prejudice” is actual harm resulting from the alleged constitutional error or violation. Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir.1998). To establish prejudice resulting from a procedural default, a habeas petitioner bears the burden of showing not merely that the errors at his trial constituted a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with errors of constitutional dimension. United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982).

STANDARD FOR HABEAS RELIEF

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, 549 U.S. 70, 127 S.Ct. 649, 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; 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.” 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); Miller-El II, 545 U.S. at 240, 125 S.Ct. 2317.

DISCUSSION

I. CONVICTION-RELATED CLAIMS

At trial, the crucial evidence against Petitioner was his own taped confession, which was played to the jury. (RT 8/11/94 at 466.) In the confession, Petitioner admitted picking up Ruby Reid at a convenience store and driving her to a remote area in the desert where they began to “make out.” (Dkt. 63, Ex. J at 9.) At some point, Reid told Petitioner she wanted something to drink and became upset that he did not have anything. She was angry, began yelling, and told him she did not want to have sex. (Id. at 12, 15.) She got out of the car; Petitioner followed and caught up with her. At some point, she fell to the ground. (Id. at 10, 12-13.) Petitioner then jumped on top of her, ripped off her remaining clothing, including a bloody and fecal-stained tampon, and had intercourse with her. (Id. at 10-11, 16.) He was angry and began to hit her repeatedly. (Id. at 10, 12-13.) Reid continued to yell. Petitioner then hit her in the head several times "with a rock to quiet her. After she became silent he left the scene not knowing if she was dead or alive. (Id. at 16-17.) Several days later he rode his bicycle back to the area to see if she was still there. (Id. at 18.) He did not know that authorities had discovered and removed her body the day before. (Id.)

Alana Owens, one of Petitioner’s roommates, testified that Petitioner and her boyfriend, who also lived with Petitioner, went out drinking early on the evening of May 18. When they returned at about 12:15 a.m., her boyfriend was very drunk. (RT 8/11/94 at 329-30.) However, Petitioner seemed fine and left shortly thereafter, stating that he wanted to “pick up a date.” (Id. at 331.) Petitioner returned at about 3:00 a.m. but Owens did not see him right away as he went straight to the bathroom upstairs. (Id. at 332.) He came down about fifteen minutes later wearing only a towel. Petitioner asked Owens what she would do if someone in her gang killed someone. He then told her he had been in a fight with a black man, that Petitioner got the best of him, and that he did not know if the guy was still alive. (Id. at 333-35.) Owens later went to the bathroom and noticed Petitioner had placed wet clothes and a pair of tennis shoes in the tub. The shoes had dark stains on them. (Id. at 338.)

Tucson Police Officer Ramon Batista testified that he initiated a stop of Petitioner’s car at approximately 1:45 a.m. the morning of the murder. (RT 8/10/94 at 223-24.) When Petitioner got out of his car, Batista noticed that his shirt was torn and he was covered in blood and feces. (Id. at 227.) Sergeant Victor Chacon arrived shortly thereafter and observed that Petitioner was “covered in blood” but did not appear to have any injuries. (Id. at 247-48.) Petitioner told Chacon about a fight with a black man. When asked why he was “covered in blood” but had no injuries, Petitioner explained that his injuries did not bleed but that the other man was badly hurt and had bled. (Id. at 248.) Chacon later noticed that Petitioner also had feces on his body.

Detectives Karen Wright and Joseph Godoy described the scene where the victim’s body was found several days later in a desert area near some brush. Godoy testified that photographs of the scene showed “lines” in the soil evidencing a scuffle as well as “drag marks” leading from the body, indicating that it had been moved. (RT 8/11/94 at 435-42.) Wright described photographs showing tire marks and oil stains. (RT 8/12/94 at 515.) Pants, tennis shoes, socks, a torn brassiere, and a used tampon were strewn about the site. Blood was found on soil and rocks near the body. (Id. at 511-15.)

Because the victim’s body was badly decomposed, her blood was not positively identified. However, Steven Clemens, a criminalist who tested the blood stains in Petitioner’s car and on the clothing and rocks at the crime scene, testified that stains in the trunk of the car and at the crime scene were not consistent with Petitioner’s blood. (Id. at 555-68.) Clemens further opined that the blood found in Petitioner’s trunk and rear bumper, on the soil around the crime scene, and on Reid’s brassiere and tampon may have come from the same person. (Id. at 572.) Her brassiere had been “torn off.” (Id. at 569.) Clemens noted that feces was found in Reid’s discarded tampon. (Id. at 570.)

Dr. Thomas Henry, a forensic pathologist who autopsied Reid, testified that she was killed by a severe fracture of her skull. (RT 8/16/94 at 634-35.) She also sustained multiple injuries, including several bruises and lacerations to her head, arms, legs, and torso. She had several fractured ribs and a broken jaw. She also had internal injuries, most likely caused by blunt trauma. (Id. at 624-27.)

Claim 1: Petitioner’s Right to a Speedy Trial under the Sixth and Fourteenth Amendments Was Violated

Petitioner alleges that the delay between his arraignment in June 1989, and the commencement of his trial in August 1994, violated his federal constitutional right to a speedy trial. He contends this delay was attributable primarily to the State’s desire to present DNA evidence “and cannot be counted against Petitioner.” (Dkt. 38 at 30.) He argues that the delay prejudiced him in several ways, including oppressive pretrial incarceration, prolonged anxiety caused by the knowledge he faced a potential death sentence, and impairment of his defense due to compromised or unavailable witnesses. (Id. at 31-32.)

Background

Petitioner was arraigned on June 12, 1989. (ROA at 26.) After a series of continuances, at a pretrial conference held on August 30, 1989, the parties agreed to a trial date of February 14, 1990. Petitioner personally agreed to this postponement. (RT 8/30/89 at 4.) At a hearing on January 25, 1990, both parties asked the trial court for a continuance until April 3, 1990. The primary reason for the delay was that it would take until the end of March before DNA test results from the crime scene were analyzed. The Court agreed to a continuance provided counsel filed a written motion and a waiver from Petitioner. (RT 1/25/90 at 2-7.) Both documents were filed shortly thereafter. (ROA at 57, 59.) Additional continuances were granted with Petitioner’s express consent up through a trial date of April 23, 1991. (Id. at 64-69, 93-95, 226-31.)

On January 2, 1991, the State moved for admission of the DNA test results. (ROA at 208.) On April 17, 1991, Petitioner’s counsel filed a motion to continue the April 23 trial date. (Id. at 278.) At oral argument, both Petitioner’s counsel and the prosecution argued that matters involving the admissibility of DNA evidence were still in flux and that additional time was needed before trial could proceed. (RT 4/23/91 at 2-8.) The Court vacated the trial date. (ROA at 281.)

On May 2, 1991, the trial court granted Petitioner’s request for additional DNA experts and for the appointment of Josephine Sotelo to be lead attorney in addressing DNA issues. (ROA at 283.) On May 17, Sotelo moved to compel production of documents and data from the FBI lab involved in processing the DNA evidence. (Id. at 294-309.) In November and December 1991, the court held an evidentiary hearing to determine the scope of matters to be addressed at the impending Frye hearing. (Id. at 810, 1047, 1072, 1074, 1076, 1084, 1086, 1317, 1340-42.) Thereafter, Petitioner unsuccessfully challenged the trial court’s ruling as to the scope of the Frye hearing in a special action to the Arizona Court of Appeals, followed by an unsuccessful petition for review to the Arizona Supreme Court. (Id. at 1587, 1602.) These challenges delayed proceedings through the end of 1992.

The trial court scheduled further matters concerning the DNA evidence into 1993. At a status conference held on February 17, 1993, Petitioner requested a hearing to determine what his counsel, Marshall Tandy, had been doing to advance his case. (ROA at 1628.) At a hearing on March 3, 1993, Tandy told the court that because the DNA hearings were ongoing and Ms. Sotelo had been especially retained to litigate those matters, “there’s nothing ongoing, right now, and Mr. Spreitz has been sitting in jail for a long time.” (RT 3/3/93 at 3.) At a hearing two weeks later, Petitioner withdrew his reservations about Tandy. (RT 3/19/93 at 3, 7.)

The Frye hearing began in April 1993 and continued through June. (ROA at 1633-43,1664-69,1681-87). On December 3, 1993, the trial court issued a minute entry granting the State’s request for admission of the DNA evidence. (Id. at 1938 — 46.) The court followed up with formal findings of fact and conclusions of law on January 12, 1994. (Id. at 1947-67.)

On February 18, 1994, the court set a trial date of June 28, 1994. (ROA at 1933.) However, additional DNA and other pretrial matters continued to be litigated into June. (Id. at 1983-86.) On June 3, the trial court granted Petitioner’s motion to exclude the DNA evidence based on the State’s failure to comply with orders to disclose to the defense the names of all lab technicians in the case. (Id. at 2005.)

At a hearing on June 15,1994, Petitioner advised the court that he would be moving to dismiss the case based on a violation of his right to a speedy trial. (RT 6/15/94 at 2-3.) On June 17, 1994, Petitioner moved to continue the June 28 trial date; the court granted the continuance and reset trial for August 9, 1994. (ROA at 2141— 42.) The court denied Petitioner’s speedy trial motion on July 25, 1994. (Id. at 2158-59.) Trial commenced on August 9, 1994.

On direct appeal, the Arizona Supreme Court rejected Petitioner’s speedy trial claim. The court first concluded that the delay did not warrant reversal under Arizona law, noting that after Petitioner’s express waiver of time expired on April 23, 1991, he “could have asserted his rights and filed a motion to dismiss any time after thirty-three days past April 23, 1991; he elected not to do so.” Spreitz, 190 Ariz. at 139, 945 P.2d at 1270. The court further noted that, although the period between arraignment and trial was “unprecedented,” Petitioner and his counsel knew or should have known of his right to demand a trial within the times limits of Rule 8 of the Arizona Rules of Criminal Procedure because “the trial judge explained this right to defendant each time the court continued the trial date.” Id.

Next, the court addressed the constitutional implications of the delay:

Neither the United States nor the Arizona Constitution requires that a trial be held within a specified time period. In Barker v. Wingo, the Supreme Court established a test by which courts decide whether trial delay warrants reversal. The four-factor Barker analysis examines “(1) the length of the delay; (2) the reason for the delay; (3) whether the defendant has demanded a speedy trial; and (4) the prejudice to the defendant.” In weighing these factors, the length of the delay is the least important, while the prejudice to defendant is the most significant. We apply each of the Barker factors to the facts presented here.

A pretrial period after arraignment of over five years is presumptively prejudicial. This factor, however, must be considered in concert with the remaining three Barker factors. Not surprisingly, defendant attributes the reason for the delay primarily to the state’s desire to present DNA evidence. In fact, the evidentiary hearings were required when defendant moved to exclude this evidence. We agree with the state that it would be unjust to allow defendant to force exclusion of potentially probative evidence where its admission provides a court with an issue of first impression and requires a lengthy evidentiary hearing. Where, as here, a defendant fights to exclude DNA evidence, the delay resulting from hearings necessary to determine admissibility is necessarily attributable to the defense. Obviously, we conclude that a defendant may contest the admissibility of scientific evidence but not that he may do so and then later contend violation of speedy trial rights due to delays occasioned by the contest. In so stating, we do not seek to penalize the defendant but merely to accommodate his wishes without jeopardizing the state’s interest in bringing the matter to trial.

Here, defendant waived his speedy trial rights in advance of the hearings and, for reasons the record does not reveal, never objected to the court that his rights had been compromised by the long delay. Thus, we find that the reason for the delay weighs against defendant’s position. Defendant did not move to dismiss for violation of speedy trial rights until after the DNA evidentiary hearing process had run its three-year course. His assertion of rights was thus untimely and bears little weight in our Barker analysis. Furthermore, defendant did not complain of any violation of speedy trial rights until twelve days before trial, and the next day he moved to continue the trial because of defense counsel’s scheduling conflict.

Finally, defendant claims no prejudice from the trial delay other than that arising out of his long period of custody. While five years in custody may have increased defendant’s anxiety quotient, we find, on the entire record, that the delay did not prejudice his ability to defend against the state’s claims. After weighing each of the Barker factors, we conclude that defendant’s constitutional right to an expeditious trial has not been unduly disturbed.

Id. at 139-40, 945 P.2d at 1270-71 (citations omitted).

Analysis

As a threshold matter, the Court rejects Respondents’ assertion that the Arizona Supreme Court’s finding of waiver under Rule 8 of the Arizona Rules of Criminal Procedure constitutes an alternative ruling to its merits analysis of Petitioner’s federal constitutional claim and that Claim 1 is therefore procedurally defaulted. (Dkt. 62 at 20.) It is evident from both Petitioner’s appellate brief and the state supreme court’s decision that Petitioner presented this claim on two separate legal fronts: as a violation of Rule 8 and as a violation of his state and federal constitutional rights. Although the state court determined that Petitioner had “waived his right to object [under Rule 8] by not objecting when the violation was occurring,” this waiver finding was simply one factor in the court’s analysis of Petitioner’s federal constitutional claim. Spreitz, 190 Ariz. at 139-40, 945 P.2d at 1270-71. Therefore, this Court addresses the merits of the federal constitutional aspect of Petitioner’s speedy trial claim.

As the state supreme court noted, the United States Supreme Court has directed courts to consider four factors in determining whether there has been a constitutional speedy trial violation: (1) the length of the delay and whether it was “uncommonly long”; (2) the reason for the delay, including whether the government or the defendant was responsible for it; (3) the defendant’s assertion of the right; and (4) whether the defendant suffered prejudice as a result of the delay. See Doggett v. United States, 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)); see also Reed v. Farley, 512 U.S. 339, 353, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994) (“A showing of prejudice is required to establish a violation of the Sixth Amendment Speedy Trial Clause.”).

Prejudice may consist of oppressive pretrial incarceration, the anxiety and concern of the accused, and the possibility that the defense will be impaired. Doggett, 505 U.S. at 654, 112 S.Ct. 2686. Of these concerns, “the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Barker, 407 U.S. at 532, 92 S.Ct. 2182. The burden of showing prejudice lies with the individual claiming the violation, and the mere possibility of prejudice is not sufficient to support the position that speedy trial rights are violated. United States v. Loud Hawk, 474 U.S. 302, 315, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986); see United States v. Baker, 63 F.3d 1478, 1497 (9th Cir.1995) (no need to examine other factors where defendant fails to show prejudice from delay).

With respect to the claim’s merits, the Court concludes that Petitioner is not entitled to habeas relief. While a five-year delay between arraignment and trial is presumptively prejudicial, see Doggett, 505 U.S. at 652 n. 1, 112 S.Ct. 2686, when weighed against the other Barker factors, the delay does not warrant relief under the circumstances of this case.

Much of the delay in this case is attributable to resolution of legitimate pretrial motions, a fact that weighs against the finding of a speedy trial violation. As the Court noted in Doggett, “speedy trial standards recognize that pretrial delay is often both inevitable and wholly justifiable. The government may need time to collect witnesses against the accused, [or] oppose pretrial motions.... We attach great weight to such considerations when balancing them against the costs of going forward with a trial whose probative accuracy the passage of time has begun by degrees to throw into question.” 505 U.S. at 656, 112 S.Ct. 2686; see United States v. O’Dell, 247 F.3d 655, 668 (6th Cir.2001) (resolution of pretrial motions justifies delay); United States v. Schlei, 122 F.3d 944, 987 (11th Cir.1997) (delay due to resolution of pretrial motions did not trigger violation of Sixth Amendment right to a speedy trial); United States v. Jones, 91 F.3d 5, 8 (2d Cir.1996) (“legitimate pretrial proceedings are ‘neutral reasons not attributable to the government’ ”).

Here, the delay arose from litigation concerning the admissibility of DNA evidence. Petitioner assigns responsibility to the State and its “desire to present the DNA evidence.” (Dkt. 38 at 30.) However, the Arizona Supreme Court determined that the protracted nature of the litigation was not occasioned by the State’s desire to introduce DNA evidence but, rather, by Petitioner’s objection to its admission. The court noted that the evidentiary hearings and litigation related to the DNA issues stemmed from Petitioner’s desire to exclude the evidence at trial and, therefore, any delay was “necessarily attributable to the defense.” Spreitz, 190 Ariz. at 140, 945 P.2d at 1271.

Indeed, Petitioner sought and obtained from the trial court appointment of counsel who specialized in DNA evidence. Counsel thereafter zealously challenged the scope and admissibility of such evidence, including, at one point, pursuing a special action to the Arizona Court of Appeals and a petition for review to the Arizona Supreme Court. Thus, this Court agrees that the primary cause of the delay was attributable to Petitioner rather than the State. As the Arizona Supreme Court noted, while Petitioner was within his rights to challenge the admissibility of the DNA evidence, he could not do so and then contend that his speedy trial rights were violated by the consequent delay.

The third Barker factor also weighs against Petitioner’s claim. Petitioner did not assert his speedy trial rights in a timely fashion. He expressly waived these rights for the first two years following his arraignment. After that, although not expressly waiving his rights, Petitioner failed to allege any violation of his right to a speedy trial until June 1994, a full five years after his arraignment. Even then, just days later, he moved for another continuance and trial was again postponed for several months.

With regard to prejudice, Petitioner proffers several arguments. First, a paraplegic who died before trial and for whom Petitioner provided care could have provided helpful, testimony at the sentencing hearing about his personal experiences with Petitioner. Second, a former girlfriend could have provided testimony at the sentencing hearing concerning his intoxication on the night of the murder. Third, the delay hindered Petitioner’s ability to locate and talk to other potential witnesses, including family members, and caused his “mental abilities” to deteriorate. (Dkt. 38 at 33.) Finally, Petitioner asserts that “excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify” and therefore specific impairment need not be shown. (Dkt. 38 at 34 (quoting Doggett, 505 U.S. at 656, 112 S.Ct. 2686).)

While it is true that specific impairment is difficult to establish, the Court has cautioned that presumed prejudice from excessive delay “cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria.” Doggett, 505 U.S. at 656, 112 S.Ct. 2686. Here, other than the delay itself, none of the other Barker factors supports Petitioner’s claim of unconstitutional delay. In addition, Petitioner alerted the judge to his work as a nurse and caregiver to a paraplegic prior to sentencing (Dkt. 63, Ex. T at 1), and Petitioner has not supported his claim that his ex-girlfriend could have provided relevant testimony concerning his level of intoxication. Thus, Petitioner’s claim of impairment to his sentencing defense fails. He also has failed to substantiate his claim of diminished “mental abilities” resulting from the delay or shown that there were other witnesses or evidence that could have been presented but for the five-year delay.

Weighing all the Barker factors, the Court concludes that the Arizona Supreme Court’s resolution of Petitioner’s speedy trial claim was based on neither an unreasonable application of controlling Supreme Court law or an unreasonable determination of the facts. Therefore, Claim 1 is denied.

Claim 4.1-A: Counsel Failed to Preserve Petitioner’s Right to a Speedy Trial

Petitioner alleges that trial counsel rendered constitutionally ineffective assistance by failing to preserve his speedy trial rights. (Dkt. 38 at 50.) Petitioner raised this claim in his PCR petition, and the court found it both procedurally barred and merit less. (Dkt. 63, Ex. D at 3.)

Clearly Established Federal Law

To prevail on a claim of ineffective assistance of counsel, a petitioner must show that counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). 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 overcome “the presumption that, under the circumstances, the challenged action might be considered sound trial strategy/’ Id. 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.

Trial counsel has “a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052. To determine whether the investigation was reasonable, the court “must conduct an objective review of [counsel’s] performance, measured for reasonableness under prevailing professional norms, which includes a context-dependent consideration of the challenged conduct as seen from counsel’s perspective at the time.” Wiggins v. Smith, 539 U.S. 510, 523, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (citation and quotation marks omitted). The Supreme Court has reiterated that “[i]n judging the defense’s investigation, as in applying Strickland generally, hindsight is discounted by pegging adequacy to ‘counsel’s perspective at the time’ investigative decisions are made and by giving a ‘heavy measure of deference to counsel’s judgments.’ ” Rompilla v. Beard, 545 U.S. 374, 381, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (quoting Strickland, 466 U.S. at 689, 691, 104 S.Ct. 2052). Moreover, under the AEDPA, a “doubly deferential” standard applies to this Court’s review of IAC claims. Knowles v. Mirzayance, — U.S. --, 129 S.Ct. 1411, 1420, 173 L.Ed.2d 251 (2009).

A court need not address both components of the Strickland inquiry, or follow any particular order. If it is easier to dispose of an ineffectiveness claim based on lack of prejudice, without first evaluating counsel’s performance, that course should be followed. Strickland, 466 U.S. at 697, 104 S.Ct. 2052.

Analysis

In denying relief on this claim, the state PCR court ruled:

The lengthy pretrial period — five years from arraignment to trial — was analyzed and discussed in detail by the Arizona Supreme Court, which rejected Petitioner’s claim of speedy trial violations under Rule 8 and the Sixth Amendment theories. The Supreme Court found that Petitioner himself waived his speedy trial rights under Rule 8; furthermore, the Court noted that Petitioner did not complain about the delay until just before trial. The Court found that counsel was not deficient for failing to protest the delay, much less that counsel’s performance prejudiced the Petitioner. See the discussion in Spreitz, 190 Ariz. at 136-40 [945 P.2d at 1267-71].

(Dkt. 63, Ex. D at 3-4 (footnote omitted).)

This Court agrees that counsel’s failure to file a “timely” speedy trial motion did not constitute ineffective assistance of counsel. In light of Petitioner’s taped confession that he killed Ruby Reid, the defense strategy was to admit to the murder but argue it was neither premeditated nor committed in furtherance of a kidnapping and/or sexual assault, thus negating the elements of first degree murder. (See RT 8/10/94 at 211-18; RT 8/17/94 at 693-733.)

The evidence supporting both premeditation and felony murder was circumstantial. Blood found in the trunk of Petitioner’s car constituted the strongest evidence for kidnapping, one of the predicate felonies, and further supported the State’s argument that Reid’s sexual assault and death were planned by Petitioner and not a product of the heat of the moment. However, the blood was not positively identified. At trial, the defense argued that the evidence to support kidnapping was speculative. Although the precise nature of the DNA evidence is not revealed in the habeas record, the State, in its motion seeking admission of the evidence, characterized the evidence as establishing that the victim’s blood was present in both the interior and the trunk of Petitioner’s car, a characterization Petitioner does not dispute. (ROA at 210.)

Evidence confirming that the blood belonged to Reid would have solidified the kidnapping theory advanced by the State. It also would have bolstered the findings made by the state courts that the murder satisfied the requirements for the “cruelty” aggravator by reinforcing the notion that Petitioner inflicted “mental anguish or physical abuse before the victim’s death” and that she consciously experienced “significant uncertainty as to [her] fate” before she was killed. Spreitz, 190 Ariz. at 147, 945 P.2d at 1278. Therefore, preventing the admission of definitive evidence that the blood in Petitioner’s car and trunk belonged to the victim was important in furthering Petitioner’s defense that she had voluntarily accompanied him to have sex and that her death occurred in a sudden, unplanned manner.

In addition, there is no evidence that Petitioner himself objected to counsel’s strategy during the nearly five years the admissibility of the DNA evidence was being litigated. As already noted, Petitioner expressly consented to continuances up to April 23, 1991, occasioning nearly two years of delay.

On March 3, 1993, Petitioner did voice concerns to the trial court about the delay and seeming inaction in his case. He felt that his counsel, Marshall Tandy, had not been working on his case during the eighteen months since his appointment. (RT 3/3/93 at 2, 5.) At a hearing, the court asked counsel to confer with Petitioner and continued the matter for two weeks. (Id. at 4.) At a subsequent hearing, Petitioner stated:

Marshall and I have been talking, and he explained what had been going on, and I just — he explained if he was around, that he could — that way he could explain the DNA stuff a little bit better, to me, because Ms. Sotelo is on a higher plane, with me, and she just goes over my head, and Mr. Tandy could interpret it.

(RT 3/19/93 at 3.) Petitioner then withdrew his motion for a new lawyer, stating “I’ll stay with Marshall Tandy.” (Id. at 7.) Thus, it appears at that point that he reaffirmed counsel’s strategy to waive his speedy trial rights while Ms. Sotelo contested the admissibility of the State’s DNA evidence even though the case had been pending for nearly four years.

Finally, as discussed in addressing Claim 1, other than the fact of the delay, which was clearly lengthy, Petitioner cannot point to specific prejudice. He makes conclusory, unsupported assertions that counsel failed during this period to interview witnesses and follow up on information from mental health experts “to correct their mis-impressions as to the facts of Chris’ life via a thorough investigation.” (Dkt. 38 at 52.) However, he does not specify what witnesses, expert or otherwise, counsel failed to interview and what information they could have provided. Moreover, it is unclear how counsel’s decision to waive Petitioner’s speedy trial rights and contest the admission of DNA evidence impacted these alleged deficiencies.

The Court concludes that it was not an unreasonable strategy for defense counsel to vigorously challenge and oppose admission of the DNA evidence. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (to satisfy the deficient performance prong, a defendant must overcome “the presumption that, under the circumstances, the challenged action might be considered sound trial strategy”). This is particularly so given that the case was a “test” case for determining the use of such evidence in Arizona. Pursuing this strategy necessitated delaying trial until the issue was resolved. Unfortunately, it took more than five years to do so. Even so, counsel’s strategy ultimately led to the exclusion of the DNA evidence at trial. For all of these reasons, the PCR court’s denial of this claim was neither contrary to nor an unreasonable application of Strickland. Claim 4.1-A is denied.

Claim 2: Petitioner’s Right to Due Process of Law was Violated by the Admission of Gruesome Photographs

Prior to the medical examiner’s testimony, the prosecution sought to introduce several photographs taken during the autopsy that depicted Reid’s badly decomposed body, including pictures of her upper torso and head. (RT 8/16/94 at 586-92.) The prosecutor conceded that the photographs were gruesome but argued they depicted multiple bruising on the body which, while not illustrative of how the victim died, provided circumstantial evidence of forcible sexual assault and thus contradicted Petitioner’s claims of consensual sex. (Id. at 592.) The trial court found the photographs “shocking” but concluded they were relevant and should be admitted. (Id. at 593.)

On appeal, the Arizona Supreme Court disagreed. Applying Rule 403 of the Arizona Rules of Evidence, the court found that the trial court had erred in admitting the autopsy photos because the danger of unfair prejudicial effect on the jury outweighed the exhibits’ probative value. Spreitz, 190 Ariz. at 141-42, 945 P.2d at 1272-73. However, the court determined that the error did not violate Petitioner’s right to a fair trial under the federal constitution:

While it is impossible to assess the precise effect viewing the most gruesome autopsy photographs might have had on the jury, we have no difficulty concluding beyond a reasonable doubt by reason of the overwhelming evidence against the defendant, including, most importantly, his own uncoerced confession, that the jury would have found him guilty without the photographs. We thus find the trial court’s discretionary error in admitting the autopsy photographs harmless.

Id. at 142, 945 P.2d at 1273.

Petitioner argues that the admission of the autopsy photos inflamed the jury’s passions and violated his Fourteenth Amendment right to a fair trial. (Dkt. 38 at 35.) Petitioner has not proffered copies of the relevant exhibits but, according to the Arizona Supreme Court, the photographs

depict the corpse as it appeared after decomposing in the desert for over three days in temperatures exceeding 100 °F. The corpse is severely discolored, and in all of the photographs insects are shown partly covering the body. This insect activity is vividly apparent in the closeups. Perhaps the most disturbing photograph, marked Exhibit 156, depicts the victim’s face staring at the camera in a mummy-like mask of death.

Spreitz, 190 Ariz. at 140, 945 P.2d at 1271.

The admission of photographs is a state law matter that “lies largely within the discretion of the trial court,” Batchelor v. Cupp, 693 F.2d 859, 865 (9th Cir.1982), and only if the admission of the evidence was so prejudicial as to offend due process may the federal courts consider it on habeas review. Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); see also Gerlaugh v. Stewart, 129 F.3d 1027, 1032 (9th Cir.1997) (finding claim not cognizable where admission of gruesome photographs did not implicate fundamental unfairness). Even if photographs are improperly admitted, such error will be deemed harmless unless the petitioner can establish that their admission had a substantial and injurious effect on the jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).

While Petitioner cites no case in which habeas relief was granted based on the admission of gruesome photographs, courts have consistently held that admission of photographs that are “at least arguably relevant and probative” does not violate due process. Kuntzelman v. Black, 774 F.2d 291, 292 (8th Cir.1985); see Villafuerte v. Lewis, 75 F.3d 1330, 1343 (9th Cir.1996) (photos relevant to prove that defendant knowingly restrained the victim); Thornburg v. Mullin, 422 F.3d 1113, 1129 (10th Cir.2005) (no due process violation where petitioner challenged the admission of six photographs “depicting the charred remains of the victims’ bodies”; despite the fact that the petitioner did not dispute the manner of death, “the state still bore the burden to convince the jury that its witnesses, both eyewitnesses and experts, provided an accurate account of events”); Biros v. Bagley, 422 F.3d 379, 391 (6th Cir.2005) (gruesome photos were probative of state’s theory that petitioner meticulously dissected victim and did not act in a blind rage); Willingham v. Mullin, 296 F.3d 917, 928-29 (10th Cir.2002) (denying claim that the admission of 22 photos of the murder victim’s body was so unduly prejudicial as to render his trial fundamentally unfair, where photos relevant to issue of intent).

As the Arizona Supreme Court stated, there is little question that the contested photos were relevant to show the fact and cause of Reid’s death. Spreitz, 190 Ariz. at 142, 945 P.2d at 1273. Although the state supreme court also determined that the gruesome character of the photos outweighed their minimal probative value, this does not necessarily establish a due process violation. Moreover, the admission of the photographs was harmless in light of the overwhelming evidence of guilt presented at trial. This included, most notably, Petitioner’s detailed confession, as well as an array of physical evidence circumstantially tying Petitioner to the crime scene.

Under these circumstances, the Court finds that the admission of the autopsy photographs did not have a substantial and injurious effect on the jury’s verdict. See Futch v. Dugger, 874 F.2d 1483, 1487-88 (11th Cir.1989) (“[B]ecause there was overwhelming evidence of guilt, the photograph [showing nude victim’s gunshot wounds] was not a ‘crucial, critical, highly significant factor’ in petitioner’s conviction.”). The Arizona Supreme Court’s conclusion that the admission of the autopsy photographs was constitutionally harmless was neither contrary to nor an unreasonable application of clearly established federal law. Claim 2 is denied.

Claim 3: The Court’s Instructions to the Jury Violated Petitioner’s Right to a Fair Trial

Claim 4.1-G: Trial Counsel was Ineffective in Failing to Request Certain Jury Instructions or to Object to Certain Others

Claim 4.3-A: Appellate Counsel was Ineffective in Failing to Request Certain Jury Instructions or to Object to Certain Others

In Claim 3, Petitioner presents three separate claims. He alleges that his constitutional rights were violated by the trial court’s instructions on premeditation and felony murder and by the court’s failure to instruct the jury that it did not have to return a verdict if it was unable to do so. (Dkt. 38 at 38-45.) In Claim 4.1-G, Petitioner asserts ineffective assistance of trial counsel for failing to object to the court’s premeditation and felony murder instructions and to request an instruction that the jury did not have to return a verdict. (Id. at 68-70.) In Claim 4.3-A, Petitioner complains that appellate counsel likewise performed deficiently for failing to raise these jury instruction issues on direct appeal. (Id. at 98.)

Procedural Status

The substantive instructional errors raised as Claim 3 were never presented on direct appeal. Instead, Petitioner presented them in his PCR petition. (Dkt. 63, Ex. G at 54-58.) Although the PCR court alternatively discussed the merits of Petitioner’s claims, denying them in summary fashion, the court first found the claims precluded under Rule 32.2(a)(3) of the Arizona Rules of Criminal Procedure because they could have been raised on direct appeal. (Dkt. 63, Ex. D at 15-16.) Thus, the state court “explicitly invoke[d] a state procedural bar as a separate basis for decision.” Harris v. Reed, 489 U.S. 255, 264 n. 10, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). This preclusion ruling rests on an independent and adequate state procedural bar. See Stewart v. Smith, 536 U.S. 856, 860, 122 S.Ct. 2578, 153 L.Ed.2d 762 (2002) (per curiam) (Rule 32.2(a) is independent of federal law); Ortiz, 149 F.3d at 931-32 (Rule 32.2(a) is regularly and consistently applied). Therefore, Claim 3 is procedurally barred, absent a showing of cause and prejudice or a fundamental miscarriage of justice.

Petitioner has not asserted cause for his failure to properly exhaust Claim 3; nor has he attempted to demonstrate that a fundamental miscarriage of justice will occur if Claim 3 is not addressed on the merits. Although Petitioner does not expressly assert trial or appellate IAC as cause, such allegations were themselves properly exhausted during his PCR proceedings and, if meritorious, could potentially serve as cause to overcome the default of Claim 3. Accordingly, the Court turns to the merits of these IAC allegations.

Premeditation Instruction

The trial court gave the following jury instruction:

“Premeditation” means that the defendant acts with either the intention or the knowledge that he will kill another human being, when such intention or knowledge precedes the killing by a length of time to permit reflection. An act is not done with premeditation it if is the instant effect of a sudden quarrel or heat of passion.

(RT 8/17/94 at 670-71.) Defense counsel did not object to this instruction, and appellate counsel did not raise on appeal any issues concerning it. In finding that neither trial nor appellate counsel’s representation was deficient in this regard, the PCR court ruled that there was no error in giving the instruction. (Dkt. 63, Ex. D at 7-8,13,15.)

Petitioner acknowledges that the court’s instruction accurately reflected the statutory definition in effect at the time of his trial but argues that the instruction violated his federal constitutional rights because it relieved the state of its burden of proving the element of actual reflection necessary for first degree murder. (Dkt. 38 at 38-39.) Therefore, Petitioner contends, counsel were deficient for not alerting the trial and appellate courts to this issue. The Court disagrees.

The trial court’s premeditation instruction did not render Petitioner’s trial fundamentally unfair. The instruction does not, on its face, permit a finding of premeditation based solely on the passage of time, but specifically states that first degree murder requires “intention” that the defendant will kill under a circumstance which “permits reflection.” See State v. Thompson, 204 Ariz. 471, 479, 65 P.3d 420, 428 (2003) (holding that the statutory definition of premeditation requires actual reflection and not the mere passage of time). Thus, the instruction explicitly distinguishes intent as existing before, and as something distinct from, reflection. The instruction clarifies that impulsive acts do not satisfy the premeditation requirement by excluding acts committed as “the instant effect of a sudden quarrel or heat of passion.” Finally, nothing in the prosecutor’s argument or the remainder of the court’s instructions inaccurately suggested that the State needed only to prove the time element of reflection in lieu of actual premeditation.

Secondarily, Petitioner was unanimously convicted of both premeditated and felony murder, and premeditation is not an element of felony murder. As a result, any error regarding the premeditation instruction did not so infect the trial with error that it rendered Petitioner’s first degree murder conviction a denial of due process. Therefore, neither trial nor appellate counsel were ineffective for failing to alert the trial and appellate courts to Petitioner’s federal constitutional concerns regarding the premeditation jury instruction.

Felony Murder Instruction

The trial court gave the following instructions concerning felony murder:

There are two separate definitions of first degree murder....

The second is when such a person commits or attempts to commit sexual assault or kidnapping and in the course of, and in the furtherance of such offense, or immediate flight from such offense, such person causes the death of any person. This type of first degree murder requires no specific mental state other than that which is required for the commission of sexual assault or kidnapping.

With respect to the felony murder rule, insofar as it provides the basis for a charge of first degree murder, it is the law that there is no requirement that the killing occurred “while committing” or “engaged in” the felony, or that the killing be a part of the felony. The homicide need not have been committed to perpetrate the felony.

It is enough if the felony and the killing were part of the same series of events.

(RT 8/17/94 at 670-71, 673.) Defense counsel did not object to this instruction, and appellate counsel did not raise on appeal any issues concerning it. In finding that neither trial nor appellate counsel’s representation was deficient in this regard, the PCR court ruled that there was no error in giving the instruction. (Dkt. 63, Ex. D at 7-8,13,15.)

Citing Arizona law, Petitioner contends this instruction was flawed:

While the court correctly instructed the jury that the state was required to prove that the death was “in the course of’ and “in furtherance of’ the crimes of sexual assault or kidnapping, the complained of instruction relieved the state of proving both elements of felony murder by stating that there is no requirement that the killing occurred “while engaged in the felony” (eliminating the “in the course of’ requirement) and by stating that “it is enough if the felony and the killing were part of the same series of events.” (eliminating the requirements that the killing occur “in the course of’ a sexual assault or kidnapping and be “in furtherance of’ such crime(s) or immediate flight therefrom).

(Dkt. 38 at 41-42) (citations omitted). Therefore, Petitioner contends, counsel were deficient for not alerting the trial and appellate courts to this issue. The Court disagrees.

In determining that the felony murder instruction was proper, the PCR court cited State v. Miles, 186 Ariz. 10, 918 P.2d 1028 (1996). (Dkt. 63, Ex. D at 15.) In Miles, the Arizona Supreme Court upheld a felony murder instruction virtually identical to the one used here, although, as Petitioner notes, the court did discourage the use of the phrase “[i]t is enough if the felony and the killing were part of the same series of events.” 186 Ariz. at 15, 918 P.2d at 1033.

Petitioner argues that the Miles court erred in upholding this instruction. However, it is not for this Court to reexamine the correctness of state court rulings on state law matters. See Estelle, 502 U.S. at 67-68, 112 S.Ct. 475. Petitioner concedes that Miles upheld the instruction to which he now objects. Therefore, he cannot show that trial and appellate counsel were ineffective for not challenging the court’s instruction on felony murder.

Lack of Instruction on Returning Verdict

Petitioner alleges that his rights were violated because the trial court failed to instruct the jurors that they need not return a verdict if they are unable to do so. The PCR court rejected this claim in summary fashion, stating simply that there is “absolutely” no such requirement and citing in support State v. Thomas, 133 Ariz. 533, 652 P.2d 1380 (1982), which held that a trial court’s failure to instruct the jury that it was not required to return a verdict is not error. (Dkt. 63, Ex. D at 15-16.)

In support of this claim, Petitioner c