Full opinion text
OPINION RAWLINSON, Circuit Judge: Petitioner-Appellant Roger Murray (Roger) appeals the district court’s denial of his petition for habeas corpus challenging the death sentence imposed following his convictions for murder and armed robbery. I. BACKGROUND Dean Morrison (Morrison), age 65, and Jacqueline Appelhans (Appelhans), age 60, operated a store and restaurant in Grasshopper Junction, a rural area outside Kingman, Arizona. See State v. Murray, 184 Ariz. 9, 906 P.2d 542, 553 (1995). On May 14, 1991, between 8:30 and 9:00 a.m., an acquaintance discovered the bodies of Morrison and Appelhans lying face down, in their bathrobes, after being shot multiple times in the head. See id. at 558-54. At the crime scene, a revolver was found on the couch and a .22 caliber semiautomatic rifle was leaning against the wall. See id. at 554. Near the bodies were various .22 and .38 caliber bullets, as well as shotgun pellets. See id. Two weeks after the crime, Morrison’s sister found a .25 caliber bullet in the pantry. See id. In the living room, drawers were pulled out and the contents scattered. See id. The bedrooms and kitchen were also ransacked. See id. A .303 rifle was on a bed and $172 was on a desk chair. See id. Morrison’s wallet containing $800 was undisturbed in his pants pocket. See id. The drawer from the cash register in the store had been removed, and the gas register was left on. See id. Morrison’s glasses, a flashlight, and a set of keys were found on the patio of the store. See id. In addition, three live .38 caliber bullets were found near the gas pumps. See id. Detective Lent of the Mohave County Sheriffs Department and another officer found and noted four sets of footprints, other than those of the investigating officers and the acquaintance who discovered the bodies. See id. Two sets of footprints belonged to the victims, a third set was made by tennis shoes, and the fourth set by western boots. See id. A different set of three footprints were made by the tennis shoes, the western boots, and Morrison’s slippers. See id. Morrison’s footprints indicated resistance by him. See id. At the time of their arrest, Roger was wearing tennis shoes and Robert was wearing western boots, both of which were consistent with the footprints analyzed at the crime scene. See id. at 553-54. Morrison’s autopsy revealed that he had suffered a shotgun blast that shattered his skull. See id. He also suffered two gunshot wounds from a large caliber pistol. See id. at 554-55. A .38 caliber bullet was recovered from the back of his neck and large caliber buckshot was removed from his head. See id. at 555. Found next to Morrison was a fired .38 caliber bullet. See id. Morrison had lacerations and abrasions on his face, elbow, forearm, knee, and thigh. See id. The autopsy revealed that these injuries occurred at approximately the same time as the gunshot wounds. See id. Appelhans was shot with at least three different guns. See id. A shotgun blast shattered her head. See id. Two .38 caliber slugs were removed from her skull. See id. She also suffered .22 caliber wounds that entered at the back of the neck and exited her face. See id. Aspiration hemorrhaging in her lungs indicated a lapse of time between the initial gunshot and death. See id. The shotgun blast was definitely lethal, and the .38 caliber bullets were also a possible cause of death. See id. Before the bodies were discovered, police officers found one of Morrison’s tow trucks abandoned on Interstate 40 westbound near Kingman, Arizona. See id. at 553. Roger and Robert were arrested on unrelated charges on Interstate 40 eastbound near Holbrook, Arizona. See id. The brothers were driving a Ford sedan with Alabama license plates. See id. at 554. When an officer attempted to stop the vehicle, the brothers fled, driving in excess of eighty-five miles per hour. See id. During their flight, the brothers breached a manned and armed roadblock. See id. The brothers stopped only after their vehicle ran off the road into a wash that impeded further progress. See id. Robert, the driver, threw a .38 revolver containing four bullets from the car. See id. Roger discarded a loaded .25 semiautomatic pistol. See id. Additionally, Robert had two spent shotgun shell casings in his pants pocket. See id. A loaded twelve gauge sawed-off shotgun and shotgun shells were discovered inside the car. See id. A checkered cushion cover that matched the cushion on Morrison’s couch contained rolled coins stamped “Dean’s Enterprises, Grasshopper Junction, Kingman, Arizona, 86401.” Id. A blue pillow case contained approximately $1400 in coin rolls and $3300 in cash. See id. Gloves and a hotel receipt were also in the vehicle. See id. Records from the hotel indicated that the brothers had listed a Ford sedan, the description of which matched the vehicle they were driving at the time of their arrest, on the hotel registration card. See id. Officers retrieved from the sedan an atlas with circles around the locations of two rural establishments, the Oasis and Grasshopper Junction, which were not otherwise indicated on the map. See id. Keys found in Robert’s pants pocket were later identified as the keys to a pickup truck on Morrison’s property. See id. A scanner and connecting knob in the sedan fit an empty bracket in the abandoned tow truck. See id. It was determined that the casings found at the crime scene and in Robert’s pocket were fired from the guns possessed by Roger and Robert. See id. at 555. Human blood and tissue were found on Robert’s shirt, on Roger’s pants, and on the cushion cover. See id. The blood on Roger’s pants could have come from either victim or from Robert, but not from Roger. See id. The blood on Robert’s shirt was consistent with that of either victim, but not with the blood of Roger or Robert. See id. The blood on the cushion cover could have come from Appelhans, but not from Morrison or the Murrays. See id. No DNA tests were conducted. See id. The brothers were indicted for the first degree murders of Morrison and Appelhans and for the armed robbery of Morrison. See id. A jury convicted them of all charges. See id. The first degree murder verdicts were unanimous for both premeditated murder and felony murder. See id. After separate sentencing hearings, the trial court found that the state had proven three aggravating circumstances as to each defendant: the murders were committed for pecuniary gain, as defined in A.R.S. § 13 — 703(F)(5); the murders were especially heinous, cruel or depraved, as provided in § 13 — 708(F)(6); and the defendants committed multiple homicides, as described in § 13-703(F)(8). See id. Finding the mitigation evidence insufficient to outweigh the aggravating circumstances, the trial court denied leniency for both defendants and imposed a sentence of death. See id. The Arizona Supreme Court affirmed the convictions and sentences. See id. A. Direct Appeal — Robert and Roger On October 26, 1995, the Arizona Supreme Court affirmed the convictions and sentences. See id. at 553. On direct appeal, the brothers raised five issues: (1) jury selection; (2) pretrial motions; (3) evidentiary issues; (4) motion for acquittal; and (5) special verdict form. See id. at 555-65. Roger raised five additional trial issues: (1) jury sequestration; (2) jury instructions; (3) request for mistrial; (4) prosecutorial misconduct; and (5) visitation of the crime scene. See id. at 565-69. In addition, Roger raised three sentencing issues: (1) objective standards and prosecutorial discretion; (2) independent review; and (3) aggravating factors. See id. at 569-71. Roger also raised issues related to the following statutory mitigation factors: (1) capacity to appreciate wrongfulness of conduct or conform conduct to requirements of the law, (2) relatively minor participation; (3) age; (4) duress; and (5) no reasonable foreseeability that his conduct would create a grave risk of death. See id. at 573-77. The Arizona Supreme Court also addressed the following nonstatutory mitigation factors that Roger raised during trial: (6) dysfunctional childhood and family relations; (7) medical treatment; (8) remorse; (9) drug and alcohol use; and (10) mental health. See id. at 577-78. For the first time on direct appeal Roger urged as mitigation factors: (11) education; (12) residual or lingering doubt; (13) felony murder instruction; and (14) cooperation. See id. at 578. 1. Jury Selection The original master jury list used was composed of a one-and-a-half-year-old driver’s license list in violation of Arizona law. See id. at 555. Just days before trial was scheduled to begin, the trial court ordered that a new jury list be created using both the old driver’s license list and a list of registered voters. See id. The jury commissioner advised the trial court that the new list would generate adequate potential jurors by the date of trial, even though the deadline to respond was beyond the date trial was scheduled to begin. See id. Robert and Roger argued that (1) the truncated time to respond to the jury questionnaire resulted in fewer potential jurors from more remote portions of the county; and (2) the one-and-a-half-year-old driver’s license list resulted in fewer young prospective jurors. See id. Robert and Roger contended that these infirmities denied them a jury of their peers because they hailed from a small, rural area in Alabama and were young at the time of trial. See id. at 555-56. The Arizona Supreme Court concluded that Robert and Roger failed to establish the lack of a fair and impartial jury or prejudice. See id. The brothers failed to show that they were denied the right to have jurors selected from a fair cross-section of the community, or systematic exclusion of any discrete segment of the community. See id. at 556. The court noted that “failure to follow statutory procedures is harmless, absent some separate showing of prejudice or discrimination ....” Id. The brothers also contended that the jury commissioner’s use of standardless exclusions violated their constitutional rights. See id. However, the Arizona Supreme Court determined that the jury commissioner, within her discretion, excused and notified potential jurors in accordance with state law. See id. at 557. The court concluded that the brothers were not denied their right to a jury drawn from a fair cross-section of the community, because the criteria used were neutral and did not “constitute systematic exclusion.” Id. (citation omitted). Finally, Robert and Roger asserted a Batson violation when the prosecution used peremptory challenges to dismiss the only two Hispanic potential jurors. See id. at 557-58. The Arizona Supreme Court rejected the Batson challenge, concluding that the trial court’s acceptance of the prosecutor’s race-neutral explanation for striking the Hispanic jurors was not an abuse of discretion. See id. 2. Pretrial Motions a.Severance The Arizona Supreme Court concluded that the trial court did not abuse its discretion in declining to sever the brothers’ cases. See id. at 558. The court noted that “joint trials, are the rule rather than the exception.... ” Id. (citation omitted). The court also pointed out that the crimes were so intertwined that it would have been virtually impossible to sever the evidence, because the evidence implicated the brothers equally. See id. The jury questionnaire screened out prospective jurors who would have trouble segmenting the evidence, and the trial court instructed the jury to consider the evidence separately against each defendant. Under these circumstances, the Arizona Supreme Court found no prejudice. See id. b.Change of Venue The Arizona Supreme Court determined that Robert and Roger failed to prove presumed or actual prejudice based on the denial of their request for a change of venue due to pretrial publicity. See id. at 559. The Court emphasized that the brothers failed to show any pretrial publicity that was so outrageous that the trial was “utterly corrupted.” Id. (citation omitted). Any security measures were largely effectuated when jurors were unlikely to be present. See id. Only prospective jurors who pledged to decide the case solely on the evidence were empaneled, and empaneled jurors were repeatedly admonished to avoid media coverage. See id. After reviewing this record, the Arizona Supreme Court affirmed the trial court’s denial of the requested venue change. See id. c.Hybrid Representation After noting that there is no right to hybrid representation (some combination of self-representation and counsel), the Arizona Supreme Court held that the trial court acted within its discretion when it denied the brothers’ requests for hybrid representation in the absence of irreconcilable conflict or incompetent counsel. See id. at 560. d.Library Access Citing Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), the Arizona Supreme Court held that because the brothers were provided with counsel throughout the proceedings, their constitutional right to access the court was afforded, regardless of whether they were able to personally access legal materials. See id. at 561. 3. Evidentiary Issues The brothers challenged the admissibility of crime scene photographs and footprint comparisons, and argued that the court improperly prevented them from impeaching a witness. See id. at 561-64. The Arizona Supreme Court determined that the challenged photographs were relevant to the case and were not unduly inflammatory. See id. at 561-62. The court also rejected the challenge to footprint comparisons made by a detective, holding that the trial court did not abuse its discretion in qualifying the detective as an expert where the detective had extensive tracking experience in criminal investigations and had previously been qualified as an expert in state and federal court. See id. at 562-63. Any issue of proper methodology “went to the weight rather than admissibility.” Id. at 563 (citation omitted). Finally, the brothers contended that the trial court impermissibly precluded impeachment of the detective who testified regarding the footprint evidence. See id. at 563-64. During cross-examination, the detective admitted that he had previously lied under oath. See id. at 563. After hearing argument in chambers, the trial court determined that the relevant extrinsic evidence of the detective’s truthfulness (or lack thereof) was minimally probative, but far outweighed by its prejudicial and confusing nature. See id. The trial court was of the view that admission of the extrinsic evidence to impeach the detective would essentially result in the trial of a collateral matter. See id. at 563-64. The Arizona Supreme Court concluded that the trial court did not abuse its discretion in applying the Arizona Rules of Evidence. See id. at 564. 4. Motion for Acquittal Robert and Roger moved for acquittal, arguing that there was not substantial evidence to support a conviction. See id. at 564. The Arizona Supreme Court concluded that there was substantial evidence supporting the robbery and felony murder convictions, including signs of a struggle, to establish that the defendants used force to rob the victims. See id. The court also clarified that the prosecution did not need to establish that Roger killed or intended to kill to prove felony murder under Arizona law. See id. at 564-65. Rather, the prosecution need only establish that a principal or accomplice attempted to commit or committed a robbery and a person was killed during the commission of and in furtherance of the robbery. See id. at 565. Further, the court affirmed the existence of substantial evidence supporting the convictions for first-degree murder, namely evidence establishing that Robert and Roger were present at the crime scene and participated in the crimes, including evidence from the crime scene found on the brothers and the execution-style murders. See id. Finally, the Arizona Supreme Court held that the trial court issued a special verdict that was in the record, as required by law, although not specifically titled “Special Verdict.” Id. B. Direct Appeal — (Trial Issues) 1. Jury Sequestration Although the trial court denied Roger’s motion to sequester the jury, the jury was repeatedly admonished to avoid media coverage. See id. at 566. Roger failed to assert or establish that the jurors failed to follow the trial court’s admonitions. See id. The Arizona Supreme Court concluded that the trial court did not abuse its discretion when it denied the sequestration request. See id. 2. Willits Jury Instruction The Arizona Supreme Court concluded that the evidence Roger asserted that the state failed to preserve, such as the types of shoes worn by others at the crime scene and fast-food remnants, would not have tended to exonerate him. See id. Therefore, the trial court acted within its discretion when it denied the requested Willits instruction. See id. 3.Intoxication Instruction Roger asserted that he was entitled to an intoxication instruction, because on the night of the murders, he and Robert had been drinking at a local bar. See id. However, the manager of the bar testified that the brothers were “handling themselves very well.” Id. In view of the trial court’s finding that there was no evidence that alcohol consumption affected the brothers’ “ability to think, function, or form intent,” the Arizona Supreme Court concluded that Roger failed to meet his burden of showing that consumption of alcohol negated an element of the crime. Id. at 566-67 (citations omitted). 4.Second-Degree Murder/Lesser Included Offense Instruction The Arizona Supreme Court explained that an instruction on second-degree murder would pertain, if at all, only to the premeditated murder count and only if supported by the evidence. See id. at 567. Due to the substantial evidence of premeditation in the record, the Arizona Supreme Court agreed with the trial court that an instruction on second-degree murder was contraindicated because the jury could have only rationally drawn the inference that Robert and Roger premeditated the murders. See id. 5.Request for a Mistrial Roger’s request for a mistrial stemmed from witness statements referring directly or indirectly to his in-custody status. See id. at 567. The Arizona Supreme Court concluded that the jurors were already aware that the brothers had been arrested and were in custody at some point prior to trial. The court ruled that such knowledge was not prejudicial and did not deprive the brothers of their right to a presumption of innocence. See id. at 568. 6.Prosecutorial Misconduct Roger alleged the following instances of misconduct: (1) A detective’s joking about the Federal Bureau of Investigations [FBI] while testifying. The objection to the FBI comment was sustained based on irrelevance and the jury was instructed to disregard it. (2) Discussion by officers in the courthouse library that defendants were using the “fecal defense”-throwing up anything and hoping something sticks. The trial court thoroughly probed this issue and concluded that there had been no discussion of the evidence and that the jurors were unlikely to have heard the discussion. (3) The prosecutor’s alleged joking with a witness in front of the jury about whether a bartender at the Temple Bar had gone fishing in Mexico. Defendant waived this issue for failure to object at trial. See State v. White, 115 Ariz. 199, 564 P.2d 888, 892 (1977). (4) The prosecutor’s joking with someone while on a cigarette break about being subpoenaed, while two jurors stood nearby. The prosecutor himself brought the incident to the court’s attention; neither defendant objected [n]or moved for a mistrial in the trial court. Thus, defendant waived this issue. (5) In closing argument, the prosecutor’s referring to defendants as “the boys from Alabama.” Defendant waived this issue by failing to object at trial. See State v. Hankins, 141 Ariz. 217, 686 P.2d 740, 747 (1984). (6) The prosecutor’s stating that a .25 caliber bullet found on the premises had been fired by one of the brothers. The argument was permissible because a ballistics expert found that the bullet matched the pistol Roger threw from the car. (7) Reference in dosing argument by the state to defendants feeling a “sick excitement” in committing the murders. The trial court cautioned the prosecutor and the prosecutor made no more such references. Id. The Arizona Supreme Court determined that the prosecutor’s conduct did not negatively influence the trial because Roger failed to establish that the prosecutor’s actions affected the jury’s verdict in any way. See id. 7. Visitation of the Crime Scene The Arizona Supreme Court determined that the trial court did not abuse its discretion by denying Roger’s request to revisit the crime scene. See id. at 569. On the fourth day of trial, more than a year after the crime was committed, Roger filed a motion to revisit the crime scene. See id. (citing Ariz. R.Crim. P. 15.1(e)). The trial court denied the motion because Roger had failed to show a substantial need for the second inspection. See id. Roger’s attorney had previously examined the crime scene with investigators, and the attorney and investigators were still available. 'Additionally, the crime scene had been cleaned. See id. C. Direct Appeal — (Sentencing Issues) 1. Objective Standards and Prosecutorial Discretion The Arizona Supreme Court noted that Roger’s arguments regarding the alleged lack of objective standards for imposing the death penalty and the broad discretion afforded the prosecution in seeking the death penalty had been rejected in previous cases. See id. (citing State v. Salazar, 173 Ariz. 399, 844 P.2d 566, 578 (1992) (in banc); State v. Correll, 148 Ariz. 468, 715 P.2d 721, 737 (1986) (in banc); State v. Harding, 137 Ariz. 278, 670 P.2d 383, 397 (1983) (in banc)). 1. Independent Review The Arizona Supreme Court explained that it conducts an independent review of death sentences for error, determines whether the aggravating circumstances were proven beyond a reasonable doubt, considers mitigating circumstances, and weighs the aggravating factors and the mitigating circumstances anew to decide whether leniency is warranted. See id. 3. Aggravating Factors Roger challenged all three of the following aggravating factors found by the trial court: A. Defendant committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value. A.R.S. § 13-703(F)(5). B. Defendant committed the offense in an especially heinous, cruel, or depraved manner. A.R.S. § 13-703(F)(6). C. Defendant has been convicted of one or more other homicides which were committed during the commission of the offense. A.R.S. § 13-703(F)(8). Id. The Arizona Supreme Court concluded that there was substantial evidence to establish that Roger committed the crime for pecuniary gain, i.e., that there was financial motivation. See id. Among other evidence, a number of items, including cash were taken. See id. at 569-70. The record also supported a finding that the crimes were especially heinous, cruel, or depraved. See id. at 570. The victims were kidnapped at gunpoint, were taken by surprise, and were aware of their imminent demise. See id. The signs of struggle and fear, e.g., Appelhans clutching Morrison’s arm, established mental anguish as well as pain and suffering. See id. Finally, the elderly, helpless victims were subjected to gratuitous violence and the murders were senseless. See id. at 571. 4. Multiple Murders Citing its precedent, the Arizona Supreme Court rejected Roger’s argument that double jeopardy foreclosed application of the multiple homicide aggravating factor where the murders were part of the same criminal offense. See id. (citing State v. Greenway, 170 Ariz. 155, 823 P.2d 22, 34-35 (1991) (in banc)). 5. Mitigating Circumstances The Arizona Supreme Court reviewed and addressed the following mitigating circumstances presented by Roger: a.Capacity to Appreciate Wrongfulness of Conduct or Conform Conduct to Requirements of the Law After discussing Roger’s juvenile problems, head injuries, hyperactivity, and substance abuse, the Arizona Supreme Court determined that Roger failed to establish that these factors, either individually or in combination, affected his capacity to appreciate the wrongfulness of his conduct or to confirm his conduct to the requirements of the law. See id. at 573-76. b.Relatively Minor Participation Roger asserted that Robert’s jailhouse letters to him, in which Robert admitted participating in the killing of Morrison and Appelhans, exculpated him. Roger also referenced the lack of evidence establishing that he fired any of the guns. See id. at 576. The Arizona Supreme Court disagreed, referencing evidence at trial implicating both Robert and Roger, including footprint evidence, the fact that both defendants were armed when captured, and the fact that the victims suffered numerous bullet wounds from different weapons. See id. Additionally, the Court noted that Robert’s jailhouse letters did not “indicate the role Roger did or did not play.” Id. The Court determined that Roger failed to prove by a preponderance of the evidence that his role in the crimes was minor. See id. c.Age — (Twenty Years Old) The Arizona Supreme Court rejected Roger’s reliance on his relative youth as a mitigating factor. The Court reasoned that Roger’s intelligence, previous criminal history, experience with law enforcement, the extent of his involvement with the crimes, and the deliberate nature of the murders militated against concluding that the commission of the crimes was due to a lack of maturity. See id. at 576-77. In sum, Roger failed to prove “how his age impaired his judgment in committing the crimes.” Id. at 577 (citation omitted). d.Duress The Arizona Supreme Court concluded that Roger was not under duress from Robert and had failed to show that his desire to please his brother rose to the level of duress. See id. e.No Reasonable Foreseeability that Conduct Would Create a Grave Risk of Death According to the Arizona Supreme Court, Roger’s asserted immaturity, dependent personality, and idolizing of his brother, even if true, would not negate the foreseeability that use of guns to commit a robbery would create a grave risk of death. See id. f.Dysfunctional Childhood and Family Relations Although Roger established that his childhood was dysfunctional, the Arizona Supreme Court concluded that “[a] difficult family background alone is not a mitigating circumstance.” Id. (citation omitted). The court held that “[fjamily background is a mitigating circumstance only if a defendant can show that something in that background had an effect or impact on his behavior that was beyond the defendant’s control.” Id. (citation omitted). In sum, the court concluded that the fact of Roger’s dysfunctional childhood was not a mitigating circumstance because “he fail[ed] to show how [his] background impacted his behavior at Grasshopper Junction.” Id. g.Medical Problems The Arizona Supreme Court found “nothing mitigating in connection with [Roger’s] claimed alleged medical problems as a child.” Id. at 578. h.Remorse The Arizona Supreme Court concluded that Roger failed to establish that he was remorseful, noting specifically Roger’s letter to the trial judge, written just prior to the aggravation/mitigation hearings, that denied responsibility for the crimes. See id. i.Drug and Alcohol Use The Arizona Supreme Court found that Roger’s alcohol and drug use were not mitigating because the substance abuse was self-reported and largely uncorroborated, and because the physical activity at the crime was inconsistent with sensory impairment. See id. j.Mental Health The Arizona Supreme Court determined that Roger’s mental health issues, including hyperactivity and potentially other mental disorders, were entitled to “some nonstatutory mitigating weight.” Id. However, the court concluded that Roger “failfed] to prove that he suffer[ed] from brain damage.” Id. k.Education The Arizona Supreme Court rejected Roger’s argument that because he became a paralegal despite having dropped out of high school, he was able to “reside within our society and abide by the rules ...” Id. The Court noted that Roger’s accomplishments did not prevent commission of the heinous crimes against Morrison and Ap-pelhans. See id. l. Residual or Lingering Doubt The Arizona Supreme Court concluded that there was no lingering doubt regarding Roger’s actual participation in the crime. Id. m. Felony Murder Instruction The Arizona Supreme Court explained that a felony murder instruction “can only be mitigating where there is some doubt regarding defendant’s specific intent to kill....” Id. (citation omitted). Because there was a premeditation finding, Roger’s specific intent was not in doubt. See id. n.Cooperation Roger complained that the trial court failed to take his cooperation into consideration. See id. Roger relied on the fact that he refrained from shooting the police officer who apprehended him. See id. The Arizona Supreme Court held that refraining from killing one more person cannot possibly demonstrate cooperation as a mitigating factor. See id. 6. Weighing Aggravation and Mitigation The Arizona Supreme Court described the “very detailed special verdicts” completed by the trial court and concluded that the record reflected careful consideration of all the evidence and careful weighing of the mitigating and aggravating factors. See id. at 579. 7. State’s Rebuttal Evidence Roger contended that the trial court improperly allowed the admission of evidence supporting the aggravating factors after the defense had rested its mitigation case. See id. However, the Arizona Supreme Court concluded that the state was entitled to call witnesses to rebut the mitigation evidence presented by Roger. See id. Regardless, the Arizona Supreme Court determined that the trial court had carefully reviewed the mitigating evidence, and “[t]here [wa]s no suggestion in the record that the [trial] judge considered the rebuttal evidence in connection with anything but mitigation.” Id. D. Post-Conviction Proceedings Following his unsuccessful direct appeal, Roger filed a petition for post-conviction relief (PCR). Roger asserted that he had a genuine and irreconcilable conflict with his trial counsel and the trial court’s refusal to appoint new trial counsel was an abuse of discretion that effectively denied Roger’s right to counsel. Roger also advanced ineffective assistance of counsel (IAC) claims alleging: (1) trial counsel’s sleeping during substantial portions of the trial; (2) trial counsel’s failure to present the testimony of Jack Potts, M.D. at the mitigation hearing; (3) trial counsel’s failure to obtain neurological or neuropsycho-logical evaluations of Roger prior to sentencing; (4) trial counsel’s failure to call an exculpatory witness; (5) trial counsel’s ignorance of rehabilitation as a mitigating factor; (6) trial counsel’s failure to properly pursue a discovery violation by the prosecution; (7) trial counsel’s failure to properly discredit the detective who provided footprint testimony; and (8) trial counsel’s calling of witnesses who were prejudicial to the defense. Roger’s remaining claims challenged the trial court’s construction of nonstatutory mitigating evidence and the constitutionality of Arizona’s death penalty system. Following a hearing pursuant to Rule 32 of the Arizona Rules of Criminal Procedure, the PCR court set an evidentiary hearing for the claims asserting ineffective assistance of counsel for sleeping and for failing to obtain a neurological or neurop-sychological examination. The balance of the claims were deemed precluded or were summarily rejected. The PCR court appointed a psychologist and neuropsychologist to evaluate Roger prior to the evidentiary hearing. Following the evidentiary hearing, the PCR court denied relief on the IAC claim asserting that counsel slept throughout major portions of the trial. The Arizona Supreme Court summarily denied Roger’s subsequent petition for review, except as to Roger’s claim that he was entitled to a jury determination of the aggravating factors. Review of that claim was consolidated with the claims of other similarly situated inmates, and relief was denied. See State v. Towery, 204 Ariz. 386, 64 P.3d 828 (2003) (en banc). Roger filed a petition for writ of certiorari to the United States Supreme Court, which he later withdrew. Roger then filed a habeas petition in the federal district court. E. Federal Habeas Petition The fifty-six claims in Roger’s federal habeas petition largely mirrored those raised in Roger’s direct appeal. See Murray, 906 P.2d at 553-78. Roger voluntarily withdrew the following nine claims as duplicative: • Claim 48 (trial court’s failure to file a written special verdict); • Claim 47 (IAC — failure to obtain neurological and neuropsychological evaluation); • Claim 49 (IAC — failure to follow-up on objection to disclosure violations); • Claim 50 (IAC — -failure to discredit footprint expert); • Claim 51 (IAC — called witnesses prejudicial to defense); • Claim 52 (denial of sentencing jury); • Claim 54 (arbitrary imposition of the death penalty); • Claim 55 (cruel and unusual punishment); and • Claim 56 (nondeterrence of execution). The district court dismissed the following claims as procedurally barred: • Claim 8 (footprint evidence); • Claim 9 (impeachment of footprint expert); • Claim 20 (viability of aggravating factors); • Claim 21 (application of aggravating factors); • Claim 23 (lack of funding for additional experts); • Claim 24 (unconstitutionality of death penalty); • Claim 25 (unconstitutionality of death penalty); • Claim 26 (unfair balancing of aggravating and mitigating factors); • Claim 27 (vagueness of heinous, cruel or depraved aggravating factor); • Claim 28 (lack of meaningful review of sentence); • Claim 29 (limitation on nonstatutory mitigation evidence); • Claim 30 (IAC — failure to impeach footprint expert); • Claim 31 (IAC — failure to move for severance); • Claim 32 (IAC — failure to secure experts); • Claim 33 (IAC — failure to prepare for Aggravation/Mitigation Hearing); • Claim 35 (violation of rights under International Law); • Claim 36 (physical and psychological torture during execution); • Claim 39 (improper consideration of evidence regarding aggravating factors); • Claim 44 (irreconcilable conflict with attorney); • Claim 46 (IAC — failure to call mental health expert); and • Claim 53 (failure to channel sentencing discretion). District Court Discussion of Claims on the Merits Claim 1 — Change of Venue The district court determined that the Arizona Supreme Court’s decision denying relief was not contrary to or an unreasonable application of Supreme Court precedent, nor was it based on an unreasonable determination of the facts. The district court referenced the two types of prejudice resulting from pretrial publicity-presumed prejudice and actual prejudice. Because Roger did not argue actual prejudice, the district court focused on presumed prejudice, albeit noting that the Arizona Supreme Court’s decision rejecting actual prejudice was not contrary to or an unreasonable application of Supreme Court precedent. The district court acknowledged that presumed prejudice is established when pretrial publicity utterly corrupts the trial atmosphere or incites a public passion that makes a fair trial unlikely. While the district court recognized that this case garnered significant media attention, it determined that the nature of the press coverage was not unduly pervasive or inflammatory. Rather, the media reports were factual recitations of the crime and the ensuing criminal proceedings. The district court therefore concluded that the Arizona Supreme Court did not unreasonably apply clearly established federal law in rejecting Roger’s claim of presumed prejudice, and that the state court’s decision was not based on an unreasonable determination of the facts. Claim 2 — Jury Sequestration The district court noted that because there is no constitutional right to jury sequestration, to obtain habeas relief, Roger was required to show that he was prejudiced by the failure to sequester the jury. The occurrences referenced by Roger to support his claim of prejudice included the security measures in effect during trial, negative comments made by police officers outside the courtroom, a conversation involving the prosecutor that may have been overheard by two jurors, and the attendance at trial of a juror’s spouse. The district court relied on the evidence presented to the state trial court that no jurors were exposed to the officers’ comments, that the jurors were admonished to disregard any comments by the prosecutor during the break, and that the juror and his spouse did not discuss the case. Because the state court’s determination that Roger failed to establish prejudice withstood AEDPA review, the district court denied habeas relief on this claim. Claim 3 — Severance The state court’s conclusion that Roger failed to establish prejudice from the joint trial, the district court held, was not based on an unreasonable application of clearly established federal law or an unreasonable determination of the facts. There was no indication that the defenses were antagonistic or mutually exclusive. Neither brother testified and no inculpatory statements were introduced. The nature and effect of the overwhelming evidence, which was admissible against both brothers, would not have changed if the trial were severed. The district court thus concluded that this claim was without merit, and denied relief. Claim 4 — Jury Selection Process The district court rejected this claim because Roger failed to demonstrate that young people or persons living in rural areas are distinctive groups as is required to establish underrepresentation or exclusion of a cognizable group from the jury selection process. The Arizona Supreme Court had rejected this claim on the basis of Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). Because Roger could not show that either Duren or any other clearly established Supreme Court authority recognized young people or people living in rural areas as distinctive groups for fair-cross section purposes, the district court concluded that the state court had not unreasonably applied clearly established federal law. Claim 5 — Fair Cross-Section/Equal Protection The district court determined that, as with Claim 4, the Arizona Supreme Court did not unreasonably apply United States Supreme Court precedent by concluding that Roger failed to establish that a distinctive group was improperly excluded from the jury pool. Claim 6 — Batson The state court’s determination that the prosecutor’s reasons for striking each of the challenged jurors were race-neutral, the district court concluded, was valid under AEDPA. One juror was excused due to the state’s criminal investigation of her relatives and the other juror was excused because the prosecutor knew the juror socially and was concerned that he might be too willing to agree to avoid discord. The district court determined that the Arizona Supreme Court neither unreasonably applied Batson nor based its decision on an unreasonable determination of the facts in the record. Claim 7 — Revisiting the Crime Scene The district court determined that Roger did not establish prejudice due to the trial court’s denial of his request to revisit the crime scene more than a year after the crime was committed and after the crime scene had been cleaned. The district court concluded that Roger failed to show that the evidence sought was material or that the verdict would have been different, particularly in view of the overwhelming evidence of guilt. The district court denied relief on this claim, affirming the state court’s determination under AEDPA. Claim 10 — Hybrid Representation The district court concluded that the Arizona Supreme Court’s decision denying Roger’s hybrid representation claim was not contrary to or an unreasonable application of Supreme Court precedent. Roger did not assert that the state court’s ruling violated his constitutional rights in any particular fashion. Additionally, the district court observed that Roger failed to cite any clearly established law supporting his claim of entitlement to hybrid representation. The district court denied relief on this claim. Claim 11 — Gruesome Photographs The district court found that Roger was not prejudiced by the photographs of the victims and of the crime scene that were admitted into evidence. The court reasoned that even if the pictures were improperly admitted, the error was not prejudicial and did not rise to the level of a due process violation because the evidence against Roger was overwhelming. The district court denied relief, concluding that the state court’s determination was neither contrary to, nor an unreasonable application of, clearly established federal law. Claim 12 — Prosecutorial Misconduct The district court determined that a detective’s joking about the FBI while testifying, when viewed in the context of the entire proceedings, “was innocuous and could have had no effect on the fairness of the trial,” particularly since the jury was instructed to disregard the offending comments. The district court also determined that the prosecutor’s statement during closing argument tying the .25 caliber shell found at the crime scene to Roger was a permissible inference that the prosecutor was allowed to draw based on the evidence. Regarding the prosecutor’s reference to the brothers as the “boys from Alabama” during closing argument, the district court determined that the “prosecutor’s use of this rhetorical device did not carry the connotations [Roger] ascribe[d] to it and did not deprive him of a fair trial.” Finally, the district court determined that the comments made by the prosecution “that the defendants experienced a ‘sick excitement’ and ‘some sick crazy high’ ” as they committed the crimes did not result in a due process violation. The trial court neutralized any inappropriateness by instructing the jury not to be influenced by passion or prejudice, and that statements of counsel are not evidence. The district court denied relief because it determined that the Arizona Supreme Court did not unreasonably apply clearly established federal law holding that inappropriate remarks must infect the trial with unfairness to warrant reversal. Claim 13 — Reference to In-Custody Status Roger objected and moved for a mistrial after reference was made to blood being drawn from Roger by a “nurse in jail.” Another reference was made to the fact that Roger’s clothing was taken while he was in custody. The trial court sustained the objection to the testimony regarding blood being drawn and struck the answer. Roger’s motion for a mistrial was denied. The district court agreed with the state court that these isolated references to Roger’s in-custody status did not warrant a mistrial. The district court concluded that relief was not warranted under Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), and Roger cited no Supreme Court case supporting the proposition that the mere mention of the fact that a defendant is in custody constitutes a due process violation. Accordingly, the district court denied relief on this claim under AEDPA. Claim 14 — Sufficiency of Evidence Roger challenged the sufficiency of evidence supporting his armed robbery and felony murder convictions. The district court found that the state court did not unreasonably apply clearly established federal law, Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in concluding that a rational factfinder could determine from the evidence that Roger committed armed robbery and that the deaths of the victims occurred during the course of or in furtherance of the armed robbery. Nor was the state court’s conclusion an unreasonable determination of the facts, given the use of several weapons, evidence of a struggle, and the fact that property was taken. The district court, therefore, denied relief on this claim. Claim 15 — Jury Instruction Addressing the State’s Failure to Preserve Evidence Roger alleged that the trial court violated his rights by failing to give a jury instruction regarding the state’s failure to preserve evidence. The district court opined that Roger had failed to establish that the officers who conducted the investigation acted in bad faith with respect to gathering, preserving, and analyzing the evidence. The witnesses for the state all gave credible explanations for the methods used to gather and preserve evidence, showing at most negligence on the part of investigators. More importantly, Roger failed to establish that the exculpatory nature of any unpreserved evidence was apparent before it was destroyed, or that the evidence was material. Because the state court did not unreasonably apply clearly established federal law in rejecting this claim, see California v. Trombetta, 467 U.S. 479, 488, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), the district court denied relief under AEDPA. Claim 16 — Intoxication Instruction The district court determined that Roger was not denied a fair trial when the trial court declined to give an intoxication instruction to the jury. The trial court found, and the Arizona Supreme Court affirmed, that Roger was drinking at a bar prior to the murders, but that there was no evidence that he was in fact intoxicated. Reviewing the state court decision under AEDPA, the district court presumed that finding to be correct and concluded that Roger had not overcome that presumption of correctness with clear and convincing evidence. The district court thus denied this claim. Claim 17 — Lesser Included Offense Instruction The district court found that the state court properly applied Supreme Court precedent, Hopper v. Evans, 456 U.S. 605, 611, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982), in concluding that there was insufficient evidence in the record to persuade a rational factfinder that Roger committed second degree murder rather than first degree murder, thereby necessitating a lesser included offense jury instruction. The district court also noted that the evidence of premeditation was overwhelming. . Claim 18 — Unconstitutionality of Arizona’s Felony Murder Statute The district court determined that there is no clearly established federal law holding that a felony murder statute must include lesser offenses. Citing Hopkins v. Reeves, 524 U.S. 88, 96-97, 118 S.Ct. 1895, 141 L.Ed.2d 76 (1998), the district court determined that Supreme Court precedent was to the contrary. The district court denied this claim. Claim 19 — Unconstitutionality of Sentence Imposition by Judge Under State Law The district court denied this claim as foreclosed by Schriro v. Summerlin, 542 U.S. 348, 358, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), which held that the Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), requiring jury sentencing in capital cases, was not retroactive. Claim 22 — Double Jeopardy Roger took the position that applying the aggravator for multiple victims subjected him to double jeopardy. The district court explained that Roger was not being punished twice for the same crime. Rather, there were two crimes, two convictions, and two sentences. Citing Poland v. Arizona, 476 U.S. 147, 156, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986), and Lowenfield v. Phelps, 484 U.S. 231, 244-46, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988), the district court clarified that statutory aggravating factors are not offenses for double jeopardy purposes, but are used to guide the jury in determining an appropriate sentence in capital cases. The district court concluded that the Arizona Supreme Court’s decision on this issue was not contrary to or an unreasonable application of clearly established federal law on double jeopardy. Claim 34 — Lack of Legitimate Penological Purpose Served by Delayed Execution The district court denied this claim as a matter of law because the United States Supreme Court has not determined that a lengthy incarceration prior to execution constitutes cruel or unusual punishment. The district court also observed that several circuit courts, including the Ninth Circuit, have held that prolonged incarceration prior to execution does not violate the Eighth Amendment. See, e.g., McKenzie v. Day, 57 F.3d 1493, 1493-94 (9th Cir. 1995) (en banc). Claim 37 — Incompetence at Time of Execution Roger asserted that he would be incompetent at the anticipated time of execution. The district court dismissed this claim without prejudice as premature, with consent of the parties. Claim 38 — Access to the Law Library The district court found that the Arizona Supreme Court did not unreasonably apply clearly established federal law when it decided that Roger was provided adequate assistance from persons trained in the law, satisfying his constitutional right of access to the courts. The district court ruled that the state court’s ruling was consistent with Bounds, 430 U.S. at 828, 97 S.Ct. 1491, which held that constitutional access to the courts is satisfied by access to a law library or adequate assistance from a person trained in the law. Claims 40/41 — Statutory and NonStatu-tory Mitigation Evidence Outweighing Aggravating Factors The district court dismissed the portion of these claims asserting violations of the Fifth, Sixth, and Seventh Amendments as procedurally barred. The district court also denied relief on the portion of Roger’s claim asserting under the Eighth and Fourteenth Amendments, that the sentencing court failed to properly weigh aggravating and mitigating factors. The district court determined that this was an asserted error of state law, and thus no federal habeas relief was available. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475,116 L.Ed.2d 385 (1991). Claim 42 — Unconstitutional Breadth of Prosecution’s Discretion to Seek the Death Penalty The district court denied this claim because no clearly established Supreme Court precedent requires that a state provide specific standards instructing a sentencing court or jury regarding how to weigh aggravating and mitigating evidence. See Ortiz v. Stewart, 149 F.3d 923, 944 (9th Cir.1998) (citing Zant v. Stephens, 462 U.S. 862, 880, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) for the proposition that the United States Constitution requires only that a state provide procedures to guide the sentencer’s discretion generally). In addition, the district court noted that we rejected this very argument in Smith v. Stewart, 140 F.3d 1263, 1272 (9th Cir. 1998). Claim 45 — Ineffective Assistance of Counsel — (sleeping through significant portions of the trial) The district court determined, in light of the evidence presented in the state court proceedings, that the state court did not rely on an unreasonable determination of facts in rejecting Roger’s allegation that his counsel slept throughout a significant portion of the trial and thus was constitutionally ineffective. Only Roger testified that he actually observed his lawyer sleeping, and multiple other witnesses testified that they did not see the lawyer asleep and that he was active and zealously involved in Roger’s defense. Additionally, the district court noted testimony from Roger’s lawyer and from co-counsel that Roger did not complain about his lawyer falling asleep in court. The district court also rejected Roger’s argument that he did not receive a fair hearing because the trial court judge was a key witness and also the presiding judge for the PCR proceedings. The district court relied on Gerlaugh v. Stewart, 129 F.3d 1027, 1036 (9th Cir.1997), where we held that a trial court judge may also preside over post-conviction proceedings. The district court denied this claim. Claim 48 — Ineffective Assistance of Counsel — (failure to present exculpatory witness) The PCR court concluded that Robert’s counsel was not ineffective when attempting to locate the alleged exculpatory witness. The district court determined that even if Roger’s counsel was ineffective in failing to present that same witness, the outcome of the trial would have been the same. The proposed exculpatory testimony that the victim was seen with three other men on the night of the murder would not have overcome the insurmountable inculpatory evidence. Because Roger could not establish prejudice in any event, the state court’s determination was not contrary to clearly established federal law, see Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2062, 80 L.Ed.2d 674 (1984). The district court declined to issue a Certifícate of Appealability (COA) after denying Roger’s petition. Roger subsequently filed a timely appeal, and we issued a COA for the following claims: • Claim 1 — denial of requested change of venue; • Claim 5 — denial of fair cross-section in the jury venire; • Claim 6 — Batson violation; • Claim 7 — denial of request to inspect the crime scene; • Claim 16 — omission of voluntary intoxication instruction; • Claim 17 — denial of a lesser included offense instruction; • Claim 26 — failure to consider mitigating evidence; • Claim 44 — denial of request to replace counsel due to irreconcilable conflict; • Claim 45 — ineffective assistance of counsel (IAC) due to counsel’s inattentiveness; and • Claim 48 — IAC due to counsel’s failure to present exculpatory witness. II. STANDARDS OF REVIEW We review de novo a district court’s denial of a habeas petition. See Fairbank v. Ayers, 650 F.3d 1243, 1250 (9th Cir.2011), as amended. Because Roger filed his petition for a writ of habeas corpus after April 24, 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA) applies. See Valer-io v. Crawford, 306 F.3d 742, 763 (9th Cir.2002) (en banc). Under AEDPA, we are barred from granting relief unless the state court decision: “(1) was contrary to clearly established federal law as determined by the Supreme Court, (2) involved an unreasonable application of such law, or (3) ... was based on an unreasonable determination of the facts in light of the record before the state court.” Fairbank, 650 F.3d at 1251 (citation and internal quotation marks omitted). A state court’s decision is contrary to clearly established federal law if its decision contradicts the governing law articulated by the Supreme Court or reaches a result different than that reached by the Supreme Court on materially indistinguishable facts.. See Terry Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court’s decision is an unreasonable application of clearly established federal law when the state court identifies the correct legal rule, but applies it to a new set of facts in a way that is objectively unreasonable. See id. at 407, 120 S.Ct. 1495. “Clearly established federal law means the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Xiong v. Felker, 681 F.Sd 1067, 1073 (9th Cir.2012) (citation omitted). Although “circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably^]” Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir.2011) (citation omitted), our determination of clearly-established law under AED-PA must ultimately rest on a Supreme Court holding, not on dicta that we have interpreted in circuit decisions. See Carey v. Musladin, 549 U.S. 70, 74, 77, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006); see also Wright v. Van Patten, 552 U.S. 120, 125-26, 128 S.Ct. 743, 169 L.Ed.2d 583 (2008) (reiterating that a Supreme Court case must have “squarely address[ed]” a certain issue and given a “clear answer” regarding the applicable legal rule to create “clearly established federal law for AEDPA purposes”). Under AEDPA, we review the “last reasoned decision” from the state court, which means that when the final state court decision contains no reasoning, we may look to the last decision from the state court that provides a reasoned explanation of the issue. See Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir.2000). In circumstances where no decision from the state court articulates its underlying reasoning, “the habeas petitioner’s burden still must be met by showing there was no reasonable basis for the state court to deny relief....” Harrington v. Richter, - U.S.-, 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011); see also Johnson v. Williams, - U.S.-, 133 S.Ct. 1088, 1096, 185 L.Ed.2d 105 (2013). In determining whether a petition has met this burden, we “must determine what arguments or theories supported or ... could have supported [] the state court’s decision;” and then assess “whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme Court].... ” Richter, 131 S.Ct. at 786 (citation omitted). Accordingly, “when the state court does not supply reasoning for its decision, we are instructed to engage in an independent review of the record and ascertain whether the state court’s decision was objectively unreasonable.” Walker v. Martel, 709 F.3d 925, 939 (9th Cir.2013) (citation and internal quotation marks omitted). “Crucially, this is not a de novo review of the constitutional question. Rather, even a strong case for relief does not mean the state court’s contrary conclusion was unreasonable.” Id. (citations and internal quotation marks omitted). Finally, so long as we are reviewing a petitioner’s claim under AEDPA, our review is limited to the facts before the state court and the petitioner is not entitled to an evidentiary hearing in federal court. See Cullen v. Pinholster, - U.S. -, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). III. DISCUSSION (Issues Raised in Federal Appeal) A. Claim One&emdash;Denial of Requested Change of Yenue Roger argues that the denial of his change of venue motion violated his due process right to a fair trial. He contends that there was a barrage of pretrial publicity that was false and prejudicial. He also asserts that there is a heightened obligation to change venue in capital cases. The Sixth Amendment guarantees a defendant’s right to trial before an impartial jury. See Skilling v. United States, 561 U.S. 358, 130 S.Ct. 2896, 2912-13, 177 L.Ed.2d 619 (2010). When an impartial jury cannot be empaneled due to pretrial publicity, a change of venue at the request of the defendant is appropriate to prevent violation of the defendant’s due process right to a fair trial. See id. at 2913. To support a change of venue request, the defendant must establish either presumed or actual prejudice. See id. at 2907. The Supreme Court has explained that a court may presume prejudice only when the “trial atmosphere [is] utterly corrupted by press coverage,” Dobbert v. Florida, 432 U.S. 282, 303, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977) (citing Murphy v. Florida, 421 U.S. 794, 798, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975)), or when “a wave of public passion ... ma[kes] a fair trial unlikely by the jury ...” Patton v. Yount, 467 U.S. 1025, 1040, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984) (internal quotation marks omitted). Juror exposure to news reports of a crime — even “pervasive, adverse publicity” — is not enough alone to trigger a presumption of prejudice to the defendant’s due process rights. Skilling, 130 S.Ct. at 2916 (describing the “vivid, unforgettable” and “blatantly prejudicial” information at issue in the handful of cases in which the Supreme Court has presumed prejudice as a result of pretrial publicity) (citing