Rienhardt v. Ryan (669 F. Supp. 2d 1038, 2009)

MEMORANDUM OF DECISION AND ORDER

DAVID C. BURY, District Judge.

Petitioner Charles Bradley Rienhardt is a state prisoner under sentence of death. He has filed a Petition for Writ of Habeas Corpus alleging that he is imprisoned and sentenced in violation of the United States Constitution. (Dkt. 38.) In a prior order, the Court assessed the procedural status of each claim in the Amended Petition and dismissed any claims or portions of claims it found to be procedurally defaulted. (Dkt. 80.) The Court also denied evidentiary development as to each claim. (Id.) In this Order, the Court reviews the merits of Petitioner’s remaining claims and concludes, for the reasons set forth herein, that Petitioner is not entitled to relief.

FACTUAL AND PROCEDURAL BACKGROUND

On February 22, 1996, Petitioner was convicted of kidnapping, attempted transfer of a dangerous drug, attempted arson, and first degree murder. The following summary of the facts surrounding the crimes is taken from the opinion of the Arizona Supreme Court affirming Petitioner’s convictions and sentences, State v. Rienhardt, 190 Ariz. 579, 582-83, 951 P.2d 454, 457-58 (1997), and this Court’s review of the record.

On the evening of September 4, 1995, Petitioner sought to purchase a large quantity of methamphetamines in Tucson. He arranged to meet two men — Michael Ellis, the victim in this case, and James Breedlove — at the apartment of co-defendant Charles Nadeau. Once the deal was made, Petitioner gave Breedlove $1,180 with the understanding that Breedlove would return to the apartment with the drugs. In order to secure Breedlove’s return, the parties agreed that Michael Ellis would remain in the apartment with Petitioner.

Breedlove never returned. As the evening progressed, Petitioner became increasingly agitated. He threatened Ellis and insisted that Ellis locate Breedlove by telephone. At one point, Petitioner called Breedlove’s girlfriend, Micki Rowlan, and told her that if Breedlove did not return, he would take Ellis on a hike in the desert, blindfold him, hang him over the edge of a cliff, remove the blindfold, and drop him. After midnight, Nadeau arrived at the apartment. For reasons that are unclear, Nadeau struck Ellis across the face hard enough to make him bleed. Eventually, Breedlove phoned the apartment with news that the deal was taking longer than expected. Petitioner told Breedlove that for every 10 minutes that Breedlove did not return, Petitioner would hurt Ellis further.

Petitioner and Nadeau eventually left the apartment with Ellis. When two witnesses returned to the apartment, they discovered a trail of blood leading from the apartment, blood on the living room carpet and on a chair where Ellis had been seated, and pieces of teeth on the floor. They also discovered a shotgun on a couch near Ellis’s chair.

Later that evening, Petitioner contacted Christina George, his girlfriend, and told her to meet him at a Circle K market near Reddington Pass because there was an emergency and he needed a ride. George drove to the appointed spot in a stolen Toyota MR-2, waited for some time, and then decided to drive up Reddington Pass to a place where she and Petitioner had recently been jumping off of rocks. Less than a mile up the dirt road, she encountered Petitioner and Nadeau on foot. Petitioner told her that their vehicle had gotten stuck on a rock. He also told her that Ellis had not died from his shotgun wounds, that they had dropped a rock on his head, and that, “I have brains all over my pants.”

The group dislodged the vehicle, a white Buick, and drove both cars to a nearby shopping plaza. They decided to burn the Buick. As George and Nadeau prepared to burn the car, a sheriffs deputy approached the group. The three jumped into the stolen Toyota, a chase ensued, and the three were arrested. The Buick, left at the shopping plaza, had blood smeared on the driver’s side, a bloody towel inside, and a large blood stain in the back seat. Police found Michael Ellis’s wallet in the Buick, and a shotgun with a missing stock.

The next night, Nadeau led police to Ellis’s body near the dirt road leading to Reddington Pass. Ellis had been severely beaten about the head and torso. He had shotgun wounds. One or two large rocks had been dropped on his head. Pieces of a wood shotgun stock were found around a pool of blood near the body. The pieces matched the make and model of the shotgun found in the abandoned Buick.

Nadeau’s trial on the above charges was severed from Petitioner’s. Christina George was charged with attempted arson and hindering prosecution. She also faced unrelated felony charges. George entered into a plea agreement in return for her testimony against Petitioner.

Pima County Superior Court Judge Michael D. Alfred sentenced Petitioner to death for the first degree murder and to a term of imprisonment for the other counts. With respect to the murder count, the judge found three aggravating eircumstances: that Petitioner was previously convicted of a serious offense; that the murder was committed for pecuniary gain; and that the crime was especially cruel, heinous or depraved. Petitioner waived the presentation of mitigating evidence. After an independent review of the record, the court found no mitigating circumstances sufficiently substantial to call for leniency.

On direct appeal, the Arizona Supreme Court struck the pecuniary gain aggravating factor. Rienhardt, 190 Ariz. at 591, 951 P.2d at 466. After reweighing the remaining aggravators and the mitigating evidence, the court affirmed the death sentence. Id. at 593, 951 P.2d at 468.

On November 15, 2000, Petitioner filed a petition for post-conviction relief (PCR) with the trial court. (ROA-PCR 61.) The petition was denied without a hearing on March 28, 2001. (Id., 68.) On December 20, 2001, Petitioner filed a petition for review of that denial. (PR Doc. 1.) The Arizona Supreme Court granted review and remanded to the trial court with instructions to clarify which claims it found precluded and which claims it denied on the merits. (Id., 7-8.) The court entered an order clarifying the basis for its dismissal of the PCR petition. (Id., 9.) The Arizona Supreme Court summarily denied review of the clarified post-conviction ruling on May 28, 2003. (Id., 11.)

LEGAL STANDARD FOR RELIEF UNDER THE AEDPA

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, 550 U.S. 465, 475, 127 S.Ct. 1933, 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 v. Murphy, 521 U.S. 320, 333 n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)).

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 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, 74, 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; see Musladin, 549 U.S. at 77, 127 S.Ct. 649; 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 v. Blodgett, 393 F.3d 943, 974 (9th Cir.2004).

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; see Landrigan, 550 U.S. at 473, 127 S.Ct. 1933; 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, 550 U.S. at 473-74, 127 S.Ct. 1933.

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.

DISCUSSION

Claim A(6)

Petitioner alleges that trial counsel performed ineffectively in violation of his rights under the Sixth and Fourteenth Amendments by failing to request a mistrial or obtain non-conflicted counsel for Petitioner after counsel became a witness. (Dkt. 38 at 22.)

Background

Prior to Christina George’s trial testimony, the prosecutor informed the court that she had become aware that defense counsel, Eric Larsen, had interviewed George prior to her becoming a cooperating witness. (RT 2/16/96 at 2.) According to the prosecutor, George indicated that she had implicated Petitioner in her interview with Larsen. {Id. at 2, 4.) No other witnesses were present and the interview with Larsen was not recorded. The prosecutor asserted that Larsen had “made himself a witness” by conducting the interview. {Id. at 4-5.) Larsen admitted that he conducted the interview. {Id. at 5-6.) The prosecutor then indicated that she was disclosing Larsen as a witness, explaining: “Mr. Larsen has set this case up as the only evidence that the State has against Mr. Rienhardt is Miss George. And clearly if she is implicating Mr. Rienhardt at a point in time to this attorney when she has absolutely no incentive to lie, then Mr. Larsen is a critical witness in this case for the State.” {Id. at 6.) Outside the presence of the jury, George testified that defense counsel did in fact visit her, that she told him “everything [she] knew,” but if it helped Petitioner, she would be willing to change her story. {Id. at 7-14.) The prosecutor moved for a mistrial on the grounds that defense counsel had become a witness for the State. {Id. at 16.) The court denied the motion but ruled that the prosecution could ask George about the interview on redirect if defense counsel “opened the door” on cross-examination. {Id. at 16-17.) Larsen’s cross-examination of George, which emphasized the inconsistencies in her stories to the police, did open the door, and on redirect the prosecutor questioned George about the interview. {Id. at 86.) Larsen did not seek to re-cross-examine George, nor was he ever called as a witness.

In his PCR petition, Petitioner alleged that Larsen was ineffective because after becoming a witness against Petitioner he failed to move for a mistrial or to withdraw as counsel. (ROA-PCR 61 at 5-7.) The PCR court summarily denied the claim “on the merits.” (PR Doc. 9.)

Analysis

The clearly established federal law governing claims of ineffective assistance of counsel is set forth in Strickland v. Wash ington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail under Strickland, a petitioner must show that counsel’s representation fell below an objective standard of reasonableness and that the deficiency prejudiced the defense. 466 U.S. at 687-88, 104 S.Ct. 2052.

To demonstrate ineffectiveness, a petitioner must overcome “the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. at 689, 104 S.Ct. 2052. In assessing whether counsel’s performance was deficient under Strickland, the test is whether counsel’s actions were objectively reasonable at the time of the decision. Id. at 689-90, 104 S.Ct. 2052. In making this assessment, 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). With respect to Strickland’s second prong, a petitioner must affirmatively prove prejudice by “showing] 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.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

Under the AEDPA, this Court’s review of the state court’s decision is subject to another level of deference. Bell v. Cone, 535 U.S. 685, 698-99, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); see Knowles v. Mirzayance, — U.S. -, 129 S.Ct. 1411, 1420, 173 L.Ed.2d 251 (2009) (noting that a “doubly deferential” standard applies to Strickland claims under AEDPA). Therefore, to prevail on this claim, Petitioner must make the additional showing that the state court’s ruling that counsel was not ineffective constituted an objectively unreasonable application of Strickland. 28 U.S.C. § 2254(d)(1).

Because an ineffective assistance of counsel claim must satisfy both prongs of Strickland, the reviewing court “need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” 466 U.S. at 697, 104 S.Ct. 2052 (“if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed”). That is the course the Court will follow.

Petitioner contends that counsel’s conduct in conducting the interview and then failing to withdraw or move for a mistrial impeded his ability to effectively cross-examine George. (Dkt. 38 at 22.) Petitioner also argues that Larsen, once the jury became aware of his interview with George, lost his credibility and implicitly “became a powerful witness for the state.” (Id.)

Because the PCR court decided the merits of this claim without providing its rationale, this Court independently reviews the record to assess whether the state court decision was objectively unreasonable under controlling federal law. See Himes, 336 F.3d at 853; Pirtle, 313 F.3d at 1167. This Court concludes that the decision of the PCR court was not objectively unreasonable because Petitioner cannot meet his burden under Strickland of affirmatively proving that he was prejudiced by Larsen’s performance.

During his cross-examination of George, Larsen mounted a vigorous attack on the witness’s credibility. (RT 2/16/96 at 57-84.) He forced George to admit that she had changed her story about Petitioner’s involvement in the crimes a number of times, that she had provided inconsistent information about her own crimes to the author of a presentence report, that she was testifying pursuant to a favorable plea bargain, and that she had a “good imagination.” (Id.) In addressing a separate issue on appeal, the Arizona Supreme Court found that Larsen’s decision not to force a mistrial was “strategic” and described Larsen’s cross-examination of George as “withering,” noting that all of George’s “inconsistencies were ... brought to light” and that the defense had “created a strong inference that George had fabricated her story in exchange for leniency.” Rienhardt, 190 Ariz. at 586, 951 P.2d at 461.

Petitioner criticizes Larsen for not moving for a mistrial or withdrawing from the case. It is not clear how either of these steps would have benefitted the defense. The State moved for a mistrial; the court denied the motion. There is no reason to believe that the court would have granted the same request if made by defense counsel. In addition, Petitioner has never contended that George’s version of the interview was inaccurate. Therefore, if a mistrial had been granted or substitute counsel appointed, Larsen in fact would have become an adverse witness whose testimony would have confirmed George’s testimony that she had implicated Petitioner in an interview prior to receiving any plea offers from the State. No matter what course Larsen took, George’s testimony about the interview would have been presented. Arguably, Larsen’s handling of the issue reduced the damage to the defense by emphasizing the inconsistencies in George’s stories while avoiding having to testify himself about the interview. Although the prosecutor referred to the Larsen-George interview in her closing argument (RT 2/22/96 at 52), that circumstance was less prejudicial than the alternative now advocated by Petitioner, which likely would have resulted in a jury hearing testimony from Petitioner’s former counsel corroborating the inculpatory information offered by the State’s lead witness.

The second reason that Petitioner was not prejudiced under Strickland is because the State presented “overwhelming evidence of his guilt.” Rienhardt, 190 Ariz. at 586, 951 P.2d at 461. Petitioner was apprehended “almost literally ‘red-handed,’ ” id., soon after the killing while fleeing from the police and leaving behind a car full of incriminating evidence which he and his accomplices had tried to burn. Blood consistent with the victim’s was splattered on his clothes. Witnesses heard him threatening to kill the victim in the same manner in which the victim was in fact killed. After his arrest he wrote letters boasting about the murder and asking George to change her story in his favor. In these circumstances, Petitioner cannot demonstrate a reasonable probability of a different verdict if Larsen had withdrawn or moved for a mistrial based on his interview with George.

In sum, the Court, having independently reviewed the record, concludes that Larsen’s handling of the fact that George provided unfavorable evidence in her interview with him did not amount to constitutionally ineffective representation because Petitioner has not demonstrated that he was prejudiced thereby. Therefore, the PCR court’s denial of this claim was not objectively unreasonable. Petitioner is not entitled to relief on Claim A(6).

Claims B(l), B(3), and B(7)

Petitioner alleges that counsel performed ineffectively at sentencing in violation of his rights under the Sixth, Eighth, and Fourteenth Amendments by failing to conduct a mitigation investigation, failing to adequately advise Petitioner on whether to present mitigation, and failing to present any mitigation evidence. (Dkt. 38 at 41.)

Background

At the presentence hearing, the State presented testimony in support of the aggravating factor set forth in A.R.S. § 13-703(F)(2) (prior conviction for a serious offense). After the State rested, defense counsel indicated that he would not present any witnesses, explaining: “Based on conversation with my client we would decline to present mitigating information.” (RT 4/22/96 at 6.) Counsel elaborated:

My client for both personal reasons and for reasons regarding his appellate status in this particular instance believes that it is inappropriate [sic], best interest to not proceed presenting mitigating factors. I have spoken with him on three different occasions regarding this. He believes it’s a reasonable strategy to proceed under and has instructed me to follow so through.

(Id.)

The court then asked Petitioner if he agreed with counsel’s statement. (Id. at 7.) Petitioner answered that he did. (Id.) The court then engaged in the following colloquy with Petitioner:

Court: You understand that basically today’s procedure is an aggravation mitigation hearing at which the State has presented at least part of the evidence that it will use to seek to establish aggravating circumstances for the purpose of its intention to ask the Court to seek the death penalty in your case. You understand that?

Petitioner: Yes, sir, I do.

Court: This is also your opportunity to present any circumstances in mitigation that you may wish to present in order to establish the both statutory and nonstatutory mitigating circumstances to persuade the Court not to impose that penalty. You understand that?

Petitioner: Yes, I do.

Court: Knowing that, you wish to proceed as Mr. Larsen indicated?

Petitioner: Yes, sir.

(Id. at 7-8.)

At the sentencing hearing, the court discussed in detail Petitioner’s decision not to offer mitigating evidence. (RT 5/20/96 at 14.) After noting that a capital defendant has the burden of establishing mitigating circumstances by a preponderance of the evidence, the court explained:

The defendant has made it clear to the Court that he did not wish to present any evidence in mitigation. The defendant did not present any mitigating evidence at the aggravation mitigation hearing in this case.

The Court informed the defendant that the defendant had an opportunity to present evidence in mitigation and that it was possible that the mitigation presented might affect the sentence the defendant might receive. The Court also told the defendant that if the Court was to find that the State has proven one aggravating factor and there was no mitigating evidence to rebut it, that the defendant would be — it would be required for the Court to sentence the defendant to death.

The defendant stated that he understood these possible ramifications if he did not present mitigating evidence, and his counsel stated it was defendant’s specific request that no mitigation be presented.

The Court has asked the defendant personally if it was his decision not to put on mitigating evidence, and the defendant has assured this Court that it was the defendant’s decision not to present any evidence in mitigation.

The Court believes based on its conversations with the defendant, after seeing defendant’s demeanor, conduct when addressing the Court, that the defendant was not under the effect of any drugs, alcohol or mind altering substance, nor under any duress or other situation that would have affected the voluntary, knowing nature of his refusal to produce mitigating evidence. This Court concludes based on his conversations with defendant, viewing him in court, that the defendant’s decision not to present any mitigating evidence was voluntary.

(Id. at 17-18.) The court indicated that it nevertheless

conducted an independent review of the evidence and including but not limited to the testimony at trial and the presentence report. The Court has examined the evidence and testimony to see if any statutory or nonstatutory mitigating factors exist, if so whether they are sufficient to overcome any one or more of the aggravating factors in this case.

(Id. at 18.)

The documents contained in the presentence report (“PSR”) reviewed by the judge included information compiled for previous reports. (PSR 4/17/96 (sealed exhibit).) These reports featured social histories detailing Petitioner’s childhood, education, family background, employment history, and history of drug and alcohol abuse. (Id.) One report stated that Petitioner’s family suffered economic setbacks when his father lost his business, that his father would become physically abusive when intoxicated, and that Petitioner was an average student and involved in athletics until junior high school when he was incarcerated. (PSR 9/27/89 at 4-5.) The report also indicated that Petitioner began using alcohol and marijuana at age 11 and cocaine at age 17; he also used methamphetamine. (Id. at 5.) In the presentence report prepared for the murder case, Petitioner was quoted as saying that he “had a very serious drinking problem, not a drug problem.” (PSR 4/17/96.)

A second report stated that Petitioner’s behavior changed in 1983; at that time he came to the attention of juvenile authorities who noted that he was “extremely depressed” with feelings of “helplessness, alienation, and desire to be dead.” (PSR 12/19/90 at 4-5.) He feared that he would become a “social deviant” like his incarcerated uncle. (Id. at 5.) His behavior was “totally out of control” and he was expelled from junior high and high school. (Id.) The report also stated that Petitioner’s parents, particularly his mother, were overprotective and “unwittingly supportive” of his delinquency. (Id.) With respect to Petitioner’s prior conviction for aggravated assault, the report contained information indicating that the victim of the assault believed Petitioner was easily led and that his older half-brother bore greater responsibility for the crime. (Id. at 4.)

In reviewing Petitioner’s sentence on direct appeal, the Arizona Supreme Court noted: “Rienhardt expressly refused to present any mitigating evidence. In anticipation of Rienhardt’s appeal to this court, the trial court conducted an independent review of the evidence for statutory and nonstatutory mitigating factors.” Rienhardt, 190 Ariz. at 591, 951 P.2d at 466.

In his PCR petition, Petitioner raised the allegations contained in Claims B(l), (3), and (7). (ROA-PCR 61 at 7-8.) In support of his claim that Larsen performed ineffectively at sentencing, Petitioner attached a psychological evaluation completed by Dr. Gina Lang. (Id., Ex. A.) The evaluation discussed Petitioner’s family background, noting that despite Petitioner’s report of a happy, positive childhood, records indicated that he suffered physical abuse when his father was drunk and that his mother was overly controlling, protective, and an enabler. (Id. at 2.) The report also discussed Petitioner’s substance abuse background, indicating that he began using alcohol and marijuana as early as age 11, that he was drinking seriously at age 15 or 16, that he had used cocaine and tried heroin, and that for a year prior to the crime he was smoking crystal methamphetamine on a daily basis. (Id at 3.) The evaluation reported test results indicating that Petitioner had an average IQ; the results were “not indicative of cognitive impairment.” (Id at 4-5.) Dr. Lang diagnosed Petitioner with “Poly-substance Dependence, In a Controlled Environment” and “Personality Disorder NOS with Antisocial and Dependent Features.” (Id at 5.)

The PCR court denied Petitioner’s claim of ineffective assistance at sentencing “on the merits” without further comment. (PR Doc. 9.)

Analysis

The right to effective assistance of counsel applies not just to the guilt phase but “with equal force at the penalty phase of a bifurcated capital trial.” Silva v. Woodford, 279 F.3d 825, 836 (9th Cir.2002) (quoting Claboume v. Lewis, 64 F.3d, 1373, 1378 (9th Cir.1995)). In assessing whether counsel’s performance was deficient, the question is “not whether another lawyer, with the benefit of hindsight, would have acted differently, but ‘whether counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.’ ” Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir.1998) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052). With respect to prejudice, the Strickland Court explained that “[w]hen a defendant challenges a death sentence ... the question is whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” 466 U.S. at 695, 104 S.Ct. 2052. In Wiggins, 539 U.S. at 534, 123 S.Ct. 2527, the Court held that “[i]n assessing prejudice, we reweigh the evidence in aggravation against the totality of available mitigating evidence.” The totality of the available evidence includes “both that adduced at trial, and the evidence adduced in the habeas proceeding.” Id. at 536, 123 S.Ct. 2527 (quoting Williams v. Taylor, 529 U.S. at 397-98, 120 S.Ct. 1495).

The Court has independently viewed the record to determine if the PCR court’s denial of this claim was objectively unreasonable under Strickland. Petitioner argues that counsel performed deficiently by failing to undertake a mitigation investigation. His argument focuses on the performance prong of his claim — i.e., Larsen’s alleged failure to adhere to professional standards dictating that capital counsel is obligated to pursue mitigating evidence notwithstanding their client’s stated desire not to present such evidence at sentencing. However, the Court has determined that this claim is more readily resolved on the basis of lack of prejudice, see Strickland, 466 U.S. at 697, 104 S.Ct. 2052, and therefore will not address the performance prong. As detailed below, the Court finds that Petitioner has not met his burden under Strickland of affirmatively proving that he was prejudiced by counsel’s performance at sentencing.

As an initial matter, the Court notes that a capital defendant may waive the presentation of mitigating evidence. In Blystone v. Pennsylvania, the United States Supreme Court found no constitutional violation when a defendant was allowed to waive all mitigation evidence after repeated warnings from the judge and advice from counsel. 494 U.S. 299, 306 & n. 4, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990). That principle was buttressed by the holding in Schriro v. Landrigan, which denied an ineffective assistance claim based on the defendant’s refusal to allow the presentation of a mitigation case. 550 U.S. at 475, 127 S.Ct. 1933. In Landrigan, the Court further stated that it had “never imposed an ‘informed and knowing’ requirement upon a defendant’s decision not to introduce evidence” and has “never required a specific colloquy to ensure that a defendant knowingly and intelligently refused to present mitigating evidence.” Id. at 479, 127 S.Ct. 1933. The Court in Landrigan also addressed the issue of prejudice under Strickland when a defendant, like Petitioner, waives mitigation.

In Landrigan, the petitioner refused to allow defense counsel to present the testimony of his ex-wife and birth mother as mitigating evidence. He also interrupted as counsel tried to proffer other evidence and told the Arizona trial judge that he did not wish to present any mitigating evidence and to bring on the death penalty. The court sentenced him to death and the sentence was affirmed on direct appeal. State v. Landrigan, 176 Ariz. 1, 859 P.2d 111 (1993). The post-conviction court rejected Landrigan’s request for a hearing and denied his claim that counsel was ineffective for failing to conduct further investigation into mitigating circumstances, finding that he had instructed counsel at sentencing not to present any mitigating evidence at all. Landrigan then filed a federal habeas petition. The district court denied the petition and refused to grant an evidentiary hearing because Landrigan could not make out a colorable claim of ineffective assistance of counsel. A panel of the Ninth Circuit affirmed the denial. Landrigan v. Stewart, 272 F.3d 1221 (9th Cir.2001). The en banc Ninth Circuit reversed, holding that counsel’s performance at sentencing was ineffective. 441 F.3d 638 (9th Cir.2006). According to the court, Landrigan’s “last-minute decision could not excuse counsel’s failure to conduct an adequate investigation prior to sentencing.” Id. at 647. The court then reiterated its view, echoed here by Petitioner, “that a lawyer’s duty to investigate [mitigating circumstances] is virtually absolute, regardless of a client’s expressed wishes.” Id.

The Supreme Court reversed. Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933. The Court held that the district court did not abuse its discretion in failing to hold an evidentiary hearing on Landrigan’s claim of sentencing-stage ineffectiveness and that the court was within its discretion in denying the claim based on Landrigan’s unwillingness to present mitigation evidence.

Landrigan dictates that Petitioner is not entitled to habeas relief. Landrigan establishes the standard for evaluating the merits of a sentencing-stage ineffective assistance claim brought by a petitioner who directed counsel not to pursue a case in mitigation: “If [the petitioner] issued such an instruction [not to offer mitigating evidence], counsel’s failure to investigate further could not have been prejudicial under Strickland.” Id. at 475, 127 S.Ct. 1933; see Owens v. Guida, 549 F.3d 399, 406 (6th Cir.2008) (“a client who interferes with her attorney’s attempts to present mitigating evidence cannot then claim prejudice based on the attorney’s failure to present that evidence”); see also Wood v. Quarterman, 491 F.3d 196, 203 (5th Cir.2007) (“Neither the Supreme Court nor this court has ever held that a lawyer provides ineffective assistance by complying with the client’s clear and unambiguous instructions to not present evidence.”). Because Petitioner clearly and unambiguously instructed counsel that he did not wish to present a case in mitigation, Larsen’s performance with respect to mitigation was not prejudicial.

In addition, Petitioner has failed to demonstrate prejudice because he has not shown that the mitigating evidence allegedly omitted by counsel, if presented, would have resulted in a reasonable probability of a different sentence. This case stands in stark contrast to cases such as Rompilla, Wiggins, and Williams, where counsel’s failure to investigate mitigating evidence prejudiced the defendant. In Rompilla v. Beard, for example, counsel failed to present evidence that his client was beaten by his father with fists, straps, belts, and sticks; that his father locked him and his brother in a dog pen filled with excrement; and that he grew up in a home with no indoor plumbing and was not given proper clothing. 545 U.S. 374, 391-92, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005). In Wiggins, counsel failed to present evidence that the defendant suffered consistent abuse during the first six years of his life, was the victim of “physical torment, sexual molestation, and repeated rape during his subsequent years in foster care,” was homeless for portions of his life, and had diminished mental capacities. 539 U.S. at 535, 123 S.Ct. 2527. In Williams, counsel failed to discover “records graphically describing Williams’s nightmarish childhood,” including the fact that he had been committed at age eleven, had suffered dramatic mistreatment and abuse during his early childhood, and was “borderline mentally retarded.” 529 U.S. at 370-71, 395, 120 S.Ct. 1495.

Petitioner has not shown that this kind of compelling mitigation evidence was omitted at sentencing. With the exception of the evidence relating to Petitioner’s use of methamphetamine in the year prior to the crime, as set forth in Dr. Lang’s evaluation together with her diagnoses of poly-substance dependence and a personality disorder, Petitioner has not identified additional mitigating information that was not before the sentencing judge in the presentence report. The evidence reviewed by the judge included information about Petitioner’s family, educational, and employment background. This information indicated that Petitioner had a long history of substance abuse, that his father was abusive when drunk, while his mother failed to provide discipline and guidance. Despite Petitioner’s protestations to the contrary, the judge also learned that Petitioner had been characterized as a “follower” by the victim of a previous crime.

Petitioner has failed to present mitigating evidence beyond that considered by the sentencing judge. To the extent that he offered new evidence in the PCR proceedings, such information was relatively “weak.” Landrigan, 550 U.S. at 481, 127 S.Ct. 1933 (describing as “poor quality,” and therefore not supportive of a colorable claim of ineffective assistance, omitted mitigating evidence indicating that the petitioner suffered from fetal alcohol syndrome with attendant cognitive and behavioral defects, was abandoned by his birth mother, was raised by an alcoholic adoptive mother, began abusing alcohol and drugs at an early age, and had a genetic predisposition to violence); see also Hill v. Mitchell, 400 F.3d 308, 319 (6th Cir.2005) (“to establish prejudice, the new evidence that a habeas petitioner presents must differ in a substantial way — in strength and subject matter' — from the evidence actually presented at sentencing”); Babbitt, 151 F.3d at 1176 (finding no prejudice where evidence omitted at sentencing was “largely cumulative of the evidence actually presented”); Woratzeck v. Stewart, 97 F.3d 329, 336-37 (9th Cir.1996) (finding no prejudice from counsel’s failure to investigate or call additional witnesses at mitigation phase because all of the information the witnesses would have presented was contained in the presentence report); Strickland, 466 U.S. at 699-700, 104 S.Ct. 2052 (no prejudice where omitted evidence “would barely have altered the sentencing profile presented to the sentencing judge.”).

The Court denied Petitioner’s motion for evidentiary development with respect to these claims, finding that Petitioner had not been diligent in state court. (Dkt. 80 at 60-62.) This determination was based on the fact that Petitioner failed to seek an evidentiary hearing during the PCR proceedings and failed to gather facts in support of his claims or seek the resources required to do so. (Id.) As a result, he presented no evidence concerning the circumstances of his waiver and only limited new information about his background, substance abuse history, and mental health.

Petitioner included a number of exhibits in support of his amended habeas petition. (Dkt. 39.) He later moved to “amend/correct” the petition. (Dkt. 89.) The Court denied the motion. (Dkt. 96.) Attached to the proposed second amended petition were additional exhibits, some of which— school records, a declaration by Christine George, a copy of Larsen’s billing records — included information in support of his allegations that counsel performed ineffectively at sentencing. (Dkt. 88, Ex’s 1, 24, 26.) Petitioner later filed several supplemental exhibits, which likewise contained mitigating information from friends and family about Petitioner’s background. (Dkt. 98, Ex’s 2-4.) The Court denied expansion of the record with respect to these exhibits, again based on lack of diligence. (Dkt. 100.)

As the Court noted in its previous orders denying evidentiary development, Petitioner, having failed to pursue this readily-available information in state court, is now prohibited from using such evidence to support his habeas claim. Nonetheless, even if the Court were to consider this new information, it would conclude that Petitioner has not shown prejudice under Strickland, Rompilla, Wiggins, and Williams.

Much of this new information about Petitioner’s background simply indicates, as set forth in the record reviewed by the sentencing judge, that Petitioner had a substance abuse problem, that Petitioner’s father was controlling and emotionally and physically abusive, that his mother was cold, distant, and uncaring, and that his older brother was a troublemaker. (Dkt. 88, Ex. 24 at 1; Dkt. 98, Ex. 2 at 1-3, Ex. 3 at 1-2, 5-7.) Other passages, in declarations by one of Petitioner’s former girlfriends and her sister, suggest that Petitioner had been sexually molested by his aunt and uncle in a “demonic ritual.” (Dkt. 98, Ex. 2 at 2-3; see Ex. 3 at 6-7.) This allegation is certainly distinct from any of the information before the sentencing judge. However, it is nothing more than speculation purportedly based on statements by Petitioner that something terrible had happened to him as a child that he did not want to talk about. (Id.) Finally, Petitioner’s sister submitted a declaration stating that it was their mother who was violent toward the children. (Dkt. 98, Ex. 4.) She also attested that their mother and all of the children suffered from mental illness or drug addiction. (Id.) This is not persuasive new information. Petitioner’s history of substance abuse, as detailed in the presentence reports, was considered by the sentencing judge. Moreover, during the PCR proceedings, Petitioner presented a mental health evaluation that included a diagnosis of polysubstance dependence and a personality disorder with antisocial features. Neither of these diagnoses constituted significant new mitigating evidence given the information the sentencing judge was able to review concerning Petitioner’s substance abuse and history of antisocial behavior. Petitioner has offered no evidence that he suffers from other mental health conditions or any form of cognitive deficit.

Having independently reviewed the record, the Court concludes that the PCR court’s denial of Petitioner’s allegations of sentencing-stage ineffective assistance of counsel was not objectively unreasonable. Under Landrigan, Petitioner cannot show prejudice because he expressly waived the presentation of a case in mitigation. Further, he has failed to prove that, if he had not waived mitigation, additional evidence could have been presented that would have resulted in a reasonable probability of a different sentence. This conclusion takes into account both the state court record and the information with which Petitioner sought, unsuccessfully, to expand that record. For the reasons set forth above, Petitioner is not entitled to relief on Claims B(l), (3), and (7).

Claim C(l)

Petitioner alleges that his rights to counsel, confrontation, and due process under the Sixth and Fourteenth Amendments were violated because his lawyer had a conflict of interest relating to witness Christina George. (Dkt. 38 at 48.)

As described above, defense counsel conducted an unrecorded interview of George, who implicated Petitioner in the crimes, causing counsel to become a potential witness. The trial court ruled that the prosecutor could inquire about that interview if defense counsel opened the door on cross-examination.

On direct appeal, Petitioner argued that his rights were violated by the trial court’s decision to admit evidence of defense counsel’s interview of George. (Opening Br. at 24-28.) The Arizona Supreme Court denied relief, holding that the evidence was properly admitted and that Petitioner “was not denied his right to confront George.” Rienhardt, 190 Ariz. at 586-87, 951 P.2d at 461-62.

Analysis

The right to counsel guaranteed by the Sixth Amendment includes the “right to representation that is free from conflicts of interest.” Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981). “[I]n order to succeed on a claim based on an alleged conflict, there must be a showing of an actual conflict, namely that a defendant’s attorney is representing conflicting interests.” Plumlee v. Masto, 512 F.3d 1204, 1210 (9th Cir.2008). Petitioner has made no showing that defense counsel represented conflicting interests. Moreover, a showing of Strickland prejudice is required in conflict claims not involving multiple representation. Mickens v. Taylor, 535 U.S. 162, 176, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002). As described above in Claim A, Petitioner has failed to show that he was prejudiced by counsel’s performance as it related to his interview with George.

Petitioner argues that the alleged conflict adversely affected Larsen’s representation because it prevented him from properly cross-examining George. The record demonstrates, however, that Larsen thoroughly explored George’s credibility notwithstanding the possibility that doing so would open the door to testimony that she had offered another, more damaging, version of events in her interview with him.

Petitioner also argues that a conflict existed because Larsen “became a witness in the case.” (Dkt. 64 at 38.) In fact, Larsen did not become a witness and did not testify about his interview with George. Moreover, because Petitioner does not assert that George’s account of the interview was untrue, there was no conflict between Larsen’s potential testimony and that offered by George and thus no need for Larsen to become a witness.

Finally, Petitioner is not entitled to relief because admission of George’s testimony about her interview with Larsen did not deny Petitioner a fundamentally fair trial, Estelle v. McGuire, 502 U.S. 62, 68, 70, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Nor did the testimony have a “substantial and injurious effect or influence in determining the jury’s verdict” under Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). There is no probability that exclusion of George’s testimony about the Larsen interview would have affected the verdict in light of the overwhelming evidence that Petitioner committed the murder. Claim C(l) is denied.

Claim D

Petitioner alleges that the sentencing court mischaracterized and understated the evidence that he was intoxicated at the time of the crime and as a result failed to consider his intoxication as a mitigating factor, thereby violating his rights under the Eighth and Fourteenth Amendments. (Dkt. 38 at 53-56.)

Background

Although Petitioner waived the presentation of mitigating evidence, the trial court “conducted an independent review of the evidence and including but not limited to the testimony at trial and the presentence report ... to see if any statutory or nonstatutory mitigating factors exist.” (RT 5/20/96 at 18.) The court first considered evidence of intoxication as a statutory mitigating factor under A.R.S. § 13-703(G)(1). The court made the following finding:

testimony from the officers at trial show [sic] the defendant smelled of alcohol when he was arrested. Officer Sueme testified that the defendant was acting drunk and she could not tell whether the defendant was intoxicated or faking intoxication. The defendant displayed no outward signs of intoxication other than the odor of alcohol on his breath. Defendant told the probation officer, Sarah Hathaway, that he had a drinking problem at the time the offense took place.

{Id. at 18-19.)

The court determined that Petitioner’s alcohol consumption did not impair his ability to appreciate the wrongfulness of his conduct. {Id. at 19.) The court based this determination on Petitioner’s conduct after the crime, including the fact that he concealed his identity by providing police officers with a false name and was discovered in his jail cell trying to wash blood from his clothes. {Id. at 19-20.)

The court also concluded that even if intoxication had constituted a statutory mitigating factor, it would have been “insufficient to overcome any of one of the aggravating factors.” {Id. at 20.) The court finally considered and rejected intoxication as a nonstatutory mitigating circumstance. {Id.)

On appeal, the Arizona Supreme Court affirmed the trial court’s finding that intoxication did not constitute a statutory mitigating factor:

We have frequently found that a defendant’s claim of alcohol or drug impairment fails when there is evidence that the defendant took steps to avoid prosecution shortly after the murder, or when it appears that intoxication did not overwhelm the defendant’s ability to control his physical behavior. Here, there is evidence that Rienhardt had consumed some alcohol on the night of the murders. There is no evidence providing even a rough estimate of his level of intoxication. But the evidence showed that Rienhardt not only took steps to avoid prosecution, but also transported his victim to a remote location, dislodged his stuck vehicle from a rock, summoned Christina George to his aid, and placed a phone call to the owner of the broken vehicle in order to apologize for the damage done. We agree with the trial court that this factor does not exist.

Rienhardt, 190 Ariz. at 591-92, 951 P.2d at 466-467 (citations omitted).

The court likewise found intoxication insufficient to call for leniency as a nonstatutory mitigating circumstance, explaining that “the only evidence of this kind found by the trial court in its independent review was that Rienhardt had alcohol on his breath at the time of his arrest, and that Rienhardt told his probation officer that he had a drinking problem at the time the murder took place.” Id. at 592, 951 P.2d at 467.

Analysis

Petitioner argues that the state court’s handling of intoxication as a mitigating circumstance violated Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). The Court disagrees.

In capital sentencing proceedings, the sentencer must not be precluded, whether by statute or case law or any other legal barrier, from considering relevant mitigation evidence. See Lockett, 438 U.S. 586, 98 S.Ct. 2954. In Lockett and later in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), the Supreme Court emphasized that under the Eighth and Fourteenth Amendments, the sentencer may not be precluded from considering and may not refuse to consider any constitutionally relevant mitigating evidence. Eddings, 455 U.S. at 113-14, 102 S.Ct. 869. However, while the sentencer must not be foreclosed from considering relevant mitigation, “it is free to assess how much weight to assign such evidence.” Ortiz v. Stewart, 149 F.3d 923, 943 (9th Cir.1998); see Eddings, 455 U.S. at 114-15, 102 S.Ct. 869 (“The sentencer ... may determine the weight to be given the relevant mitigating evidence.”); see also State v. Newell, 212 Ariz. 389, 405, 132 P.3d 833, 849 (2006) (explaining that mitigating evidence must be considered regardless of whether there is a “nexus” between the mitigating factor and the crime, but the lack of a causal connection may be considered in assessing the weight of the evidence).

On habeas review, the court does not evaluate the substance of each piece of evidence submitted as mitigation; rather, it reviews the state court record to ensure that the court allowed and considered all relevant mitigation. See Jeffers v. Lewis, 38 F.3d 411, 418 (9th Cir.1994) (holding that when it is evident that all mitigating evidence was considered, trial court is not required to discuss each piece of such evidence); see also Lopez v. Schriro, 491 F.3d 1029, 1037 (9th Cir.2007), cert. denied, — U.S. -, 128 S.Ct. 1227, 170 L.Ed.2d 140 (2008) (rejecting claim that the sentencing court failed to consider proffered mitigation where the court did not prevent the defendant from presenting any evidence in mitigation, did not affirmatively indicate there was any evidence it would not consider, and expressly stated it had considered all mitigation evidence proffered by the defendant).

The thrust of Petitioner’s argument is that the trial court so erred in its interpretation of the evidence that Petitioner was intoxicated that it amounted to a “total disregard” of such evidence as mitigation. (Dkt. 38 at 54.) He cites the trial testimony of officers, including Officer Sueme, who encountered Petitioner after he was apprehended and observed that he smelled of alcohol and appeared to be intoxicated. {See RT 2/15/96 at 91-92, 108.) Officer Sueme further testified that she discontinued her initial discussion with Petitioner because of his intoxicated state. (RT 2/15/96 at 92.) Also, Andrea Benz, Nadeau’s live-in girlfriend, testified that Petitioner had been drinking throughout the night. (RT 2/14/96 at 103.)

This evidence does not refute the findings by the trial court and the Arizona Supreme Court, nor does it indicate that the trial court failed to consider all of the trial testimony as indicated in its special verdict. To the contrary, the state courts did not disregard evidence of Petitioner’s intoxication; instead, they explicitly acknowledged the testimony suggesting that Petitioner was intoxicated but balanced that information with other evidence concerning his course of conduct during and after the killing. This evidence indicated that Petitioner, notwithstanding his apparent intoxication, was capable of carrying out his stated plan to murder Ellis while subsequently taking steps to avoid detection and capture.

As the Ninth Circuit explained in LaG-rand v. Stewart, 133 F.3d 1253, 1263 (9th Cir.1998), rejecting the petitioner’s argument that the state courts failed to consider the mitigation evidence “fully”:

federal courts do not review the imposition of the sentence de novo. Here, as in the state courts’ finding of the existence of an aggravating factor, we must use the rational fact-finder test of Lewis v. Jeffers. That is, considering the aggravating and mitigating circumstances, could a rational fact-finder have imposed the death penalty

Here, the record demonstrates that the trial court as well as the Arizona Supreme Court were able to and did consider evidence of Petitioner’s intoxication as both a statutory and a non-statutory mitigation circumstance. See Lopez, 491 F.3d at 1037. The fact that the state courts accorded evidence of intoxication less weight than Petitioner believes it was entitled to does not amount to a violation of Lockett. See Eddings, 455 U.S. at 114-15, 102 S.Ct. 869. A rational factfinder could have reached the same conclusion as the state courts in their interpretation of the record and sentenced Petitioner to death notwithstanding the equivocal evidence in the record concerning his level of intoxication. Claim D is denied.

Claim E

Petitioner alleges that his rights under the Eighth and Fourteenth Amendments were violated because there was insufficient evidence to establish beyond a reasonable doubt either the cruelty or the heinous/depraved prong of the aggravating factor set forth in A.R. S. § 13-703(F)(6).

With respect to the state court’s application of an aggravating factor, habeas review “is limited, at most, to determining whether the state court’s finding was so arbitrary and capricious as to constitute an independent due process or Eighth Amendment violation.” Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990). In making that determination, the reviewing court must inquire “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the factor had been satisfied.” Id. at 781, 110 S.Ct. 3092 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

Cruelty

The trial court made the following findings with respect to the cruelty prong of the (F)(6) aggravating factor:

The offense was especially cruel because Michael Ellis was made to suffer tremendous physical pain and endure severe mental anguish associated with his uncertainty as to his fate during the course of events which took place on or about September 5th of 1995.

The Court finds beyond a reasonable doubt that Michael Ellis was alive and conscious, feared for his life and was uncertain as to his fate during at least some portion of the brutal beating, shooting and skull crushing which ultimately lead to his death. This finding is based upon testimony at trial; that it’s clearly established that, number one, Michael Ellis was beaten in the apartment prior to being taken to Reddington Pass to be killed, as evidenced from the blood found at the apartment along with pieces of teeth.

Number two, Michael Ellis feared for his life as shown by his panicked and fearful statement to Micki Roland [sic] where he told her he was bleeding, frantically pleaded for her to tell Mr. Breed-love to return to the apartment.

Number three, Michael Ellis was in fear for his life when being beaten in the apartment when the defendant told Micki Roland wouldn’t it be terrible if Michael Ellis fell down dead, that the defendant was going to take Mike for a hike. After hearing those statements, Michael Ellis was taken on a 20 minute drive to Reddington Pass. During the beating, the 20 minute drive, the walk to the spot in the desert where he was ultimately killed, Michael Ellis must have been in terror for his life.

Number four, Michael Ellis had a defensive wound on his thumb and wrist which were caused by a shotgun blast, and show that Michael Ellis was standing w