Free Order - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) Petitioner, ) ) v. ) ) Dora B. Schriro, et al., ) ) ) Respondents. ) ) ________________________________ ) Steven Craig James,

No. CV-00-1118-PHX-NVW DEATH PENALTY CASE MEMORANDUM OF DECISION AND ORDER

Steven Craig James ("Petitioner") has filed an Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 alleging that he is imprisoned and sentenced to death in violation of the United States Constitution. (Dkt. 18.)1 In this order, the Court reviews the merits of Petitioner's properly exhausted claims and his requests for discovery, expansion of the record, and an evidentiary hearing. (Dkt. 108.) BACKGROUND In the companion case of State v. Libberton, the Arizona Supreme Court provided the following summary of the facts surrounding the crimes and Petitioner's arrest:2

1

"Dkt." refers to the documents in this Court's file.

Co-defendant Libberton was tried separately, convicted, and sentenced to death. In its decision in Petitioner's case, the Arizona Supreme Court referred to the facts set forth in its ruling in Libberton's direct appeal. State v. James, 141 Ariz. 141, 685 P.2d 1293 (1984). For ease of reference, "Libberton" is substituted for "Appellant" in the material quoted from State v. Libberton.

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In the early morning hours of November 17, 1981, the victim, Juan Maya, picked up a hitchhiker, Martin Norton. Norton, a 14-year-old, lived with a friend, Steven James, in a mobile home trailer located in Phoenix. Maya drove to the trailer and, according to Norton, made homosexual advances. Norton resisted and told Maya he should go in the trailer because there was a homosexual there who could satisfy Maya's desires. Maya entered the trailer, which was occupied at the time by James and [another friend, Lawrence] Libberton. Norton told James that Maya was gay and to get rid of him. James then kicked Maya in the crotch, and Maya left the trailer and ran. James and Libberton pursued Maya and brought him back to the trailer. Norton testified that Maya's nose and mouth were bleeding when he was brought back to the trailer. Once again, in the trailer, Norton, James and Libberton took turns hitting Maya in the face. Maya pleaded with them to take his car and credit cards and quit hitting him. James had a gun in his hand and took Maya's wallet. From the wallet, Libberton obtained the title to Maya's car, and forced Maya to sign the title over to Libberton. James took Maya's bracelet and ring. Libberton put on Maya's belt, which had Maya's name engraved on the back, and said, "[n]ow that I own Juan Maya's car I might as well be Juan Maya." The three assailants then discussed, in Maya's presence, what to do with Maya. James said "[t]he only thing we can do is kill him." Libberton agreed. Next, James suggested the three could hide the body in a mine shaft on his parents' property in Salome. Libberton agreed, and at gunpoint forced Maya into Maya's car. Libberton kept the gun pointed at Maya all the way to Salome, approximately a two-hour drive from the trailer. On the way, James bought gas and cigarettes with Maya's credit cards. Later, along the highway to Salome, a police officer stopped the car for speeding. James, the driver, got out of the car and talked to the officer. Libberton threatened to shoot Maya if he said anything. James got back in the car and the group proceeded to Salome. The group arrived at James' parents' property shortly before daybreak. Libberton handed the gun to James who ordered Maya to walk up the side of a small mountain to the mine shaft. Maya requested and was allowed to smoke a cigarette. The assailants stood by Maya, allowing him to finish his cigarette, before beginning the final assault. When Maya finished his cigarette, James ordered Maya to step to the shaft, a hole about five feet in diameter with a beam across the top. Maya screamed "[d]on't kill me." James fired at Maya twice from less than five feet. (Only sparks and no bullets came out of the gun because, as established at trial, the gun was filled with debris.) Maya ran at James, grabbed the gun, struggled with James, and fell to the ground. Libberton grabbed a five-pound rock and began beating Maya on the back of the head and shoulders with it. Maya was still struggling with James for the gun. Norton handed Libberton a board, with which Libberton struck Maya on the back, forcing Maya to let go of the gun. James then shot in the direction of Maya's head. As before, only sparks came out of the gun. Maya was still conscious, making "gurgling sounds,"and moaning. Libberton grabbed the gun from James and fired it at Maya's head. Again, the gun malfunctioned. Maya was still not dead, so all three assailants picked up large rocks and slammed them on the back of Maya's head as Maya lay face down. After about five blows Maya lay unconscious. Libberton and James dragged Maya
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to the mine shaft and threw him in. Back in the car Libberton and James told Norton that if he told anyone they would kill him. The three returned to Phoenix. James told Norton to clean the trailer and remove Maya's blood from the couch. That morning Libberton and James picked up a [Daniel] McIntosh in Maya's car. The three assailants and McIntosh drove around. Libberton bought some shoes with one of Maya's credit cards. At noon the three assailants were captured when Libberton attempted to get a cash advance of $20 on Maya's MasterCard. 141 Ariz. 132, 135-36, 685 P.2d 1284, 1287-88 (1984). At trial, Norton and McIntosh testified against Petitioner, and the prosecution introduced evidence that Petitioner had lead police to Maya's body. Petitioner also testified, claiming that he was coerced by Libberton and Norton to participate in the crime. A jury convicted Petitioner of first degree murder and kidnapping, and Maricopa County Superior Court Judge James Moeller sentenced him to death. On direct appeal, the Arizona Supreme Court affirmed. State v. James, 141 Ariz. 141, 685 P.2d 1293, cert. denied, 469 U.S. 990 (1984). In November 1984, Petitioner filed his first petition for post-conviction relief ("PCR") in the trial court. (Dkt. 27, Ex. B.) Subsequently, counsel was appointed and filed a supplement to the PCR petition. (Id., Ex. C.) The PCR court determined that all of Petitioner's claims were procedurally precluded and summarily denied relief. (Id., Exs. D, E; Dkt. 109, Ex. 13.) Petitioner submitted a petition for review of the PCR court's ruling to the Arizona Supreme Court, which summarily denied relief. (Dkt. 27, Ex. F.) In 1986, Petitioner filed a petition for writ of habeas corpus in this District, Case No. CIV-86-587-PHX-RGS. On January 25, 1989, the Court dismissed the petition without prejudice, to allow Petitioner to return to state court to exhaust certain claims. Petitioner filed a second PCR petition in state court in July 1990. (Dkt. 27, Ex. G.) In February 1991, counsel filed a supplemental PCR petition. (Id., Ex. H.) The court summarily denied relief and a motion for rehearing. (Id., Exs. I, J.) The Arizona Supreme Court summarily denied a petition for review. (Dkt. 27, Ex. K.)

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In 1993, Petitioner returned to this Court and filed a new petition for writ of habeas corpus, Case No. CIV-93-0869-PHX-RGS. On January 27, 1994, the Court again dismissed the petition without prejudice, allowing Petitioner to return to state court to exhaust certain claims. Petitioner filed a third PCR petition in March 1995. The petition was denied in May 1999 (Dkt. 133, Ex. A), and the Arizona Supreme Court summarily denied review (Dkt. 27, Exs. N, P). On June 29, 2000, Petitioner returned to this Court and filed a habeas petition. (Dkt. 1.) After an amended petition was filed, Respondents filed an answer, limited by the Court's order to issues of exhaustion and procedural default. (Dkt. 26.) Briefing concluded in November 2001, Petitioner having filed a traverse, Respondents a reply, and Petitioner a surreply. (Dkts. 41, 43, 53, 56.) On July 24, 2006, the Court issued an order on the procedural status of Petitioner's claims, dismissing Claims 9, 13, 14, 17, 19, and 30-32 based on procedural bar, dismissing Claim 7 as not cognizable on federal habeas review, and denying Claims 26 and 33 on the merits as a matter of law. (Dkt. 79 at 21.) The Court ordered the parties to brief the merits of Claims1-6, 8, 10-12, 15, 16, 18, 20-25, and 27-29. (Id.) In his brief on the merits, Petitioner withdrew from consideration Claims 11, 16, 18, 20-25 and 2729. (Dkt. 108 at 1.) As a result, the only claims remaining for consideration on the merits are Claims 1-6, 8, 10, 12, and 15. (See id.) DISCUSSION AEDPA Standard for Habeas Relief Under the Antiterrorism and Effective Death Penalty Act (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.

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28 U.S.C. § 2254(d). The phrase "adjudicated on the merits" refers to a decision resolving a party's claim which is based on the substance of the claim rather than on a procedural or other non-substantive ground. Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004). The relevant state court decision is the last reasoned state decision regarding a claim. Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005) (citing Ylst v. Nunnemaker, 501 U.S. 797, 80304 (1991)); Insyxiengmay v. Morgan, 403 F.3d 657, 664 (9th Cir. 2005). "The threshold question under AEDPA is whether [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 (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; see Carey v. Musladin, 127 S. Ct. 649 (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. 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; see Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). In characterizing the claims subject to analysis under the "contrary to" prong, the Court has
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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)(1)'s `contrary to' clause." Williams, 529 U.S. at 406; see Lambert, 393 F.3d at 974. Under the "unreasonable application" prong of § 2254(d)(1), a federal habeas court may grant relief where a state court "identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular . . . case" or "unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Williams, 529 U.S. at 407. In order for a federal court to find a state court's application of Supreme Court precedent "unreasonable" under § 2254(d)(1), the petitioner must show that the state court's decision was not merely incorrect or erroneous, but "objectively unreasonable." Id. at 409; Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam). Under the standard set forth in § 2254(d)(2), habeas relief is available only if the state court decision was based upon an unreasonable determination of the facts. Miller-El v. Dretke, 545 U.S. 231, 240 (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 (2003) (Miller-El I); see Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004). In considering a challenge under § 2254(d)(2), state court factual determinations are presumed to be correct, and a petitioner bears the "burden of rebutting this presumption by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Miller-El II, 545 U.S. at 240. However, it is only the state court's factual findings, not its ultimate decision, that are subject to § 2254(e)(1)'s presumption of correctness. Miller-El I, 537 U.S. at 341-42 ("The clear and convincing evidence standard is found in § 2254(e)(1), but that subsection pertains only to state-court determinations of factual issues, rather than decisions.").

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As the Ninth Circuit has noted, application of the foregoing standards presents difficulties when the state court decided the merits of a claim without providing its rationale. See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002); Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). In those circumstances, a federal court independently reviews the record to assess whether the state court decision was objectively unreasonable under controlling federal law. Himes, 336 F.3d at 853; Pirtle, 313 F.3d at 1167. Although the record is reviewed independently, a federal court nevertheless defers to the state court's ultimate decision. Pirtle, 313 F.3d at 1167 (citing Delgado, 223 F.3d at 981-82); see also Himes, 336 F.3d at 853. Only when a state court did not decide the merits of a properly raised claim will the claim be reviewed de novo, because in that circumstance "there is no state court decision on [the] issue to which to accord deference." Pirtle, 313 F.3d at 1167; see also Menendez v. Terhune, 422 F.3d 1012, 1025-26 (9th Cir. 2005); Nulph v. Cook, 333 F.3d 1052, 1056-57 (9th Cir. 2003). II. Evidentiary Development Standard With respect to all but one of his remaining claims, Petitioner requests an evidentiary hearing and/or expansion of the record and further discovery. (Dkt. 108 at 98-111.) The Court will address Petitioner's specific requests for evidentiary development in conjunction with the merits of his individual claims. In doing so, the Court applies the relevant provisions of 28 U.S.C. § 2254(e)(2): If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that ­ (A) the claim relies on ­ (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder
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would have found the applicant guilty of the underlying offense. Section 2254(e)(2) similarly limits a petitioner's ability to present new evidence through a motion to expand the record pursuant to Rule 7 of the Rules Governing Section 2254 Cases.3 See Cooper-Smith v. Palmateer, 397 F.3d 1236, 1241 (9th Cir. 2005) (holding that the conditions of § 2254(e)(2) generally apply to petitioners seeking relief based on new evidence, even when they do not seek an evidentiary hearing) (citing Holland v. Jackson, 542 U.S. 649, 652-53 (2004) (per curiam)). The Supreme Court has interpreted subsection (e)(2) as precluding an evidentiary hearing in federal court if the failure to develop a claim's factual basis is due to a "lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." Williams v. Taylor, 529 U.S. 420, 432 (2000). A hearing is not barred, however, when a petitioner diligently attempts to develop the factual basis of a claim in state court and is "thwarted, for example, by the conduct of another or by happenstance was denied the opportunity to do so." Id.; see Baja v. Ducharme, 187 F.3d 1075, 1078-79 (9th Cir. 1999) (allowing hearing when state court denied opportunity to develop factual basis of claim). The diligence assessment is an objective one, requiring a determination of whether a petitioner "made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court." Williams, 529 U.S. at 435. For example, when there is information in the record that would alert a reasonable attorney to the existence and importance of certain evidence, the attorney fails to develop the factual record if he does not make reasonable efforts to sufficiently investigate and present the evidence to the state court. See id. at 438-39, 442; Alley v. Bell, 307 F.3d 380, 390-91 (6th Cir. 2002). Absent unusual circumstances, diligence requires that a petitioner "at a minimum, seek an evidentiary hearing

Rule 7 authorizes a federal habeas court to expand the record to include additional material relevant to the determination of the merits of a petitioner's claims. "The materials that may be required include letters predating the filing of the petition, documents, exhibits, and answers under oath, to written interrogatories propounded by the judge. Affidavits may also be submitted and considered as part of the record." Rule 7(b), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254.
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in state court in the manner prescribed by state law." Williams, 529 U.S. at 437; see Bragg v. Galaza, 242 F.3d 1082, 1090 (9th Cir. 2001). The mere request for an evidentiary hearing, however, may not be sufficient to establish diligence if a reasonable person would have taken additional steps. See Dowthitt v. Johnson, 230 F.3d 733, 758 (5th Cir. 2000) (counsel failed to present affidavits of family members that were easily obtained without court order and with minimal expense); Koste v. Dormire, 345 F.3d 974, 985-86 (8th Cir. 2003); McNair v. Campbell, 416 F.3d 1291, 1299-1300 (11th Cir. 2005). Pursuant to Townsend v. Sain, 372 U.S. 293, 312-13 (1963), overruled in part by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992), and limited by § 2254 (e)(2), a federal district court must hold an evidentiary hearing in a § 2254 case when: (1) the facts are in dispute; (2) the petitioner "alleges facts which, if proved, would entitle him to relief;" and (3) the state court has not "reliably found the relevant facts" after a "full and fair evidentiary hearing," at trial or in a collateral proceeding. See also Hill v. Lockhart, 474 U.S. 52, 60 (1985) (upholding the denial of a hearing when petitioner's allegations were insufficient to satisfy the governing legal standard); Bashor v. Risley, 730 F.2d 1228, 1233-34 (9th Cir. 1984) (hearing not required when claim must be resolved on state court record or claim is based on non-specific conclusory allegations); see also Schriro v. Landrigan, 127 S. Ct. 1933, 1940 (2007) ("Because the deferential standards prescribed by § 2254 control whether to grant habeas relief, a federal court must take into account those standards in deciding whether an evidentiary hearing is appropriate."). Thus, Petitioner is entitled to an evidentiary hearing on a claim only if he alleges "facts that, if proven, would entitle him to relief." Turner v. Calderon, 281 F.3d 851, 890 (9th Cir. 2002) ("[e]ntitlement to an evidentiary hearing based on alleged ineffective assistance, for example, requires a showing that if his allegations were proven at the evidentiary hearing, deficient performance and prejudice would be established") (quoting Tapia v. Roe, 189 F.3d 1052, 1056 (9th Cir. 1999)).

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III.

Claims 1-6 and 8 Claim 1 - The State Violated Petitioner's Rights When it Failed to Disclose an Agreement it Made with Martin Norton Petitioner asserts that his due process and confrontation rights under the Sixth

4 Amendment were violated when the State failed to disclose the existence of a pretrial 5 agreement between witness Martin Norton and the prosecutors that preceded Norton's 6 December 29, 1981 sworn statement. Specifically, Petitioner alleges that the prosecution 7 failed to disclose the existence of an oral agreement between Norton and prosecutors 8 whereby the State agreed to try Norton as a juvenile in return for a sworn statement 9 implicating Petitioner in Maya's murder. Petitioner contends that the prosecution's failure 10 to disclose this information amounted to an unconstitutional withholding of exculpatory 11 information in violation of Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United 12 States, 405 U.S. 150 (1972). 13 Background 14 Martin Norton, the prosecution's chief witness, was a fourteen-year-old friend of 15 Petitioner at the time of the murder. He was arrested along with Petitioner and Libberton 16 several hours after Maya's murder. In an initial interview with police on November 19, 17 1981, two days after the murder, Norton denied his own involvement but implicated 18 Petitioner and Libberton in Maya's disappearance. (See Dkt. 19, Exs. 4 and 5.) In an 19 interview conducted about a week later with Detective Jack Hackworth, Norton for the first 20 time admitted his own involvement in Maya's murder and described how he, Petitioner, and 21 Libberton beat Maya at Petitioner's trailer, and then drove him to a remote area where they 22 beat him to death. (Id., Ex. 6 at 1-2.) Subsequently, on December 29, 1981, Petitioner 23 provided a formal, sworn statement. Thereafter, the prosecution presented him with a plea 24 agreement in exchange for testimony at trial consistent with his December 29 statement. 25 At trial, Norton testified that Petitioner came up with the idea of killing Maya and 26 disposing of his body in an abandoned mine shaft on the property of Petitioner's parents. 27

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(RT 9/27/82 at 773-75.)4 Norton further testified that upon arriving at the mine shaft, Petitioner and another accomplice, Lawrence Libberton, forced Maya to get out of the car at gunpoint, then attempted to shoot Maya. He testified that after the gun misfired, Petitioner and Maya engaged in a scuffle which ended when Petitioner, Libberton, and Norton bludgeoned Maya to death with rocks and a piece of plywood. According to Norton, Petitioner and Libberton then dragged Maya's lifeless body to the mine shaft and dropped it in. (Id. at 785-92.) This testimony was consistent with Norton's December 29 statement. (See Dkt. 19, Ex. 8 at 8-18.) Norton admitted during direct examination that he was not truthful in his initial pretrial interviews with police: [PROSECUTOR]: And you had also been stopped and questioned by the police, is that right? [NORTON]: Yes.

13 [PROSECUTOR]: Did you tell them the truth? 14 [NORTON]: No. 15 [PROSECUTOR]: Why not? 16 [NORTON]: Because I was scared. 17 [PROSECUTOR]: Why were you afraid? 18 [NORTON]: Because I didn't want to be arrested for murder. 19 [PROSECUTOR]: Were you also afraid of Steven James? 20 [NORTON]: A little bit. 21 [PROSECUTOR]: And Larry Libberton? 22 [NORTON]: Yes. 23 .... 24 25 26 27 "RT" refers to the reporter's transcripts of Petitioner's trial. A set of original transcripts were provided to this Court by the Arizona Supreme Court on December 27, 2000. (See Dkt. 12.)
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[PROSECUTOR]: A couple of days later you were picked up and taken down to the police station; is that correct?

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[NORTON]: Yes. [PROSECUTOR]: And at that time you were interviewed by Detective Russ Davis, the gentleman sitting beside me? [NORTON]: Yes. [PROSECUTOR]: Did you tell him the truth? [NORTON]: No. [PROSECUTOR]: Did you tell him partially though what had happened? [NORTON]: Yes. [PROSECUTOR]: Why didn't you tell him the truth? [NORTON]: Because I was scared. (RT 9/27/82 at 806, 808-09.) Norton further testified that he was not promised anything prior to any of his pretrial statements, including the sworn statement on December 29: [PROSECUTOR]: And you told [Hackworth] basically what happened to Juan Maya at that time, didn't you? [NORTON]: Yes. [PROSECUTOR]: And you partially admitted your part in the crime, didn't you? [NORTON]: Yes. [PROSECUTOR]: At that time you didn't know whether or not you were going to be treated as a juvenile or an adult, did you? [NORTON]: No. [PROSECUTOR]: And no promises have been made to you at all? [NORTON]: No. [PROSECUTOR]: You indicated to Detective Hackworth right at that time that you would testify against Steven James and Larry Libberton; correct? [NORTON]: Yes. [PROSECUTOR]: Now, subsequently sometime thereafter out at Durango [Jail] your attorney, Robert Wertsching and I and Detective Davis met with you; is that correct? [NORTON]: Yes.
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[PROSECUTOR]: Now, you weren't offered any kind of agreement at that time, were you? [NORTON]: No. [PROSECUTOR]: And I told you that I only want you to tell me the truth? [NORTON]: Yes. [PROSECUTOR]: And you did talk to me at that time, did you not? [NORTON]: Yes. [PROSECUTOR]: In fact you gave a statement? [NORTON]: Yes. [PROSECUTOR]: And you substantially told us exactly what had happened to Juan Maya and what you told the jury again today; is that correct? [NORTON]: Yes. [PROSECUTOR]: Then later, Mr. Norton, you entered into a plea agreement with the State upon the advice of your attorney; is that correct? [NORTON]: Yes. (RT 9/27/82 at 809-11.) At trial, Norton identified the plea agreement, and it was moved into evidence by the prosecution. (RT 9/27/82 at 811.) On cross-examination, defense counsel elicited the fact that Norton's plea agreement provided that in return for truthful testimony consistent with his December 29, 1981 statement, Norton would be charged and punished as a juvenile, meaning he would be released from custody at the age of eighteen.5 (Id. at 848-50.)
5

Specifically, section 1 of Norton's plea agreement states:

Martin David Norton agrees to testify fully and truthfully in any proceedings determined to be necessary by the State of Arizona regarding the victim Juan Maya and/or in any criminal prosecution of Lawrence Keith Libberton and Steven Craig James. On December 29, 1981, Martin David Norton provided information to Deputy County Attorney Myrna Parker and represented that information to be true. If Martin David Norton's testimony is not substantially consistent with the information that he provided in the December 29, 1981 interview, then the State of Arizona shall have the option of withdrawing from this agreement and the agreement shall be void.
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On cross-examination, Norton again acknowledged that he had lied both during his initial interviews with police and in his sworn December 29 statement to the prosecutor: [COUNSEL]: Isn't it true that you have lied to both [Detective Davis and Detective Hackworth]? [NORTON]: Yes. [COUNSEL]: How many times did you lie to Detective Davis? [NORTON]: I don't know. .... [COUNSEL]: Was it two times or three times? [NORTON]: I don't know. [COUNSEL]: It is so many times you don't remember; isn't that right? About this. You have lied so many times about this case, you don't know how many times you have lied to Detective Davis; isn't that true? [NORTON]: I don't know. [COUNSEL]: Did you lie to Detective Hackworth just once or more than once? [NORTON]: I don't have any idea how many times I lied to him. [COUNSEL]: About this case. Not about anything else? [NORTON]: I don't know. .... [COUNSEL]: And didn't the County Attorney say that all she wanted was the truth? [NORTON]: Yes. [COUNSEL]: Well, she didn't get the truth, all the truth, did she? [NORTON]: No. [COUNSEL]: Because why? Because you lied; isn't that right? [NORTON]: Yes. .... [COUNSEL]: Well, were you lying back on the 29th of December, 1981, to (Dkt. 108, Ex. 4.)
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the County Attorney? [NORTON]: Yes. [COUNSEL]: And it says in this plea agreement that you had to have been telling the truth there back on the 29th, doesn't it? [NORTON]: Yes. [COUNSEL]: So what we know is that you are telling the truth that you have lied. You admit that you are a liar? [NORTON]: Yes. .... [COUNSEL]: When I talked to you on the 23rd of July, 1982, with your psychologist and James Vance, didn't you say, "I have a tendency to exaggerate and lie a lot, and I always have had the tendency to lie a lot"? Did you tell me that? [NORTON]: Yes. [COUNSEL]: Was that a lie or the truth? [NORTON]: The truth. [COUNSEL]: So you have always been a liar? [NORTON]: Not always. (RT 9/27/82 at 817-19, 854-55.) PCR Proceedings Petitioner presented this claim in state court in his 1995 PCR petition. To support his contention that the State failed to disclose that a deal had been made to try Norton as a juvenile prior to his December 29, 1981 statement, Petitioner proffered a 1993 affidavit from Norton's pretrial attorney, Robert Wertsching, which attested in pertinent part: 2) As counsel to a minor charged with murder, it was essential for me to make all reasonable effort to assure that my client would not be remanded to adult court. The prosecution had made a formal transfer request on the petition filed against my client. 3) On my client's behalf, I had at least two conversations with the head prosecutor of the juvenile division of the Maricopa County Attorney's office on the subject of whether the County Attorney would agree not to seek transfer of Mr. Norton to adult court. ....
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5) At some point in time the head of the juvenile division indicated orally that if Mr. Norton would give a full and accurate statement to the County Attorney and would testify consistently with that statement at the trial of the adults who participated in the homicide offense, the County Attorney would not seek to have my client transferred to adult court. 6) Thereafter, in expectation that these contingencies would be met by debriefing my client, I was present at the jail when my client gave a statement to Ms. Parker, Deputy County Attorney [and the prosecutor in Petitioner's case], in the presence of an investigator. 7) At the time of the formal jail interview with Ms. Parker, my client and I expected that if my client was truthful in the debriefing and cooperated fully with the prosecution of the adult defendants, he would not be remanded to adult court. I have no information whether Ms. Parker was aware of my oral communications with the head of the juvenile division. 8) Subsequent to a formal jail interview with Ms. Parker, my client and I signed a formal written agreement that conformed with the oral understanding I had previously reached with the juvenile division head. (Dkt. 108, Ex. 2.) Petitioner argued in his PCR petition that there had been an undisclosed "secret" oral agreement between the state and Norton's attorney prior to the written plea agreement in Norton's case and that Norton had relied on this oral agreement in giving his December 1981 statement. In denying relief on this issue, the PCR court assumed the existence of the agreement and concluded that such an agreement would have been used primarily for impeachment: Petitioner maintains that knowledge of the alleged agreement was essential for challenging Norton's credibility. It is asserted the agreement explains Norton's motive for coming forward. . . . Prior to the time there was any agreement, Norton had already made statements to the police that incriminated the defendant. These statements were made before he was represented by counsel. Therefore, his motive was not based on the agreement. Norton was a young man who admitted being involved in a murder. He was the eyewitness to a murder committed by the two adult defendants. He was in serious trouble. . . . Because there were prior statements made by Norton that implicated the defendant, Norton's motive for testifying was not the result of a "secret agreement." The existence of the agreement has little impeachment value when coupled with the prior statements the witness made to the police. The defense had a copy of the plea agreement that was signed after Norton gave his statement to the prosecutor. The agreement was introduced in evidence. Norton was cross-examined about the plea agreement. He was questioned about prior inconsistent statements. The jury knew Norton had a motive to cooperate with authorities. The jury was aware that Norton had agreed to testify in exchange for not being tried as an adult. . . .
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.... The existence of the agreement would not have altered the verdict or sentence because there was overwhelming evidence of guilt against the defendant. In addition to Norton's eyewitness testimony, the state presented defendant's confession to Daniel McIntosh, in which Petitioner bragged and smiled about his involvement in the abduction, beating, and shooting of Juan Maya. Petitioner showed authorities where Juan Maya's body was disposed of in the mine shaft on property in Salome that belonged to his parents. While at the mine shaft, and on the way back to Phoenix, Petitioner made inculpatory statements to the officers. The statements he made were not suppressed. . . . The jury heard defendant's testimony. He admitted being present and participating in Juan Maya's murder. The jury heard him say he was coerced to participate in the murder by a much smaller person, Libberton. Yet, defendant admitted that he drove the group to the murder scene which was 100 miles from Phoenix, as Libberton did not know the location of the Salome property. He testified he deliberately exceeded the speed limit in order to be pulled over by the police. Yet, when he was pulled over and had gone to the rear of the vehicle to speak to the police officer, he failed to say anything about being coerced . . . . The jury rejected his duress defense. The trial judge characterized the defendant's version of events as "blatant perjury." (Special Verdict - Petitioner's Exhibit Y.) .... Petitioner claims he requested "all Brady material related to Norton's juvenile court plea negotiations." After a diligent search of the defendant's discovery and Brady requests this court cannot find a specific request. If there was a specific request the standard of "might have affected the outcome" is not met, due to the overwhelming evidence of guilt and the Brady material's minor impeachment value. The outcome of the trial would not have been affected by knowledge of Norton's agreement. Assuming the Brady request was not specific, the standard for materiality for general requests is whether "the omitted evidence creates a reasonable doubt [as to the defendant's guilt] that did not otherwise exist." Bracy, 145 Ariz. at 528, 703 P.2d at 472 (quoting Agurs, 427 U.S. at 112 ). In Agurs, the Court explained that "the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial." 427 U.S. at 112-113. This court has already determined that the alleged Brady material was of minor impeaching value, and, additionally, there was overwhelming evidence of guilt. Thus, the alleged agreement can create no reasonable doubt about Petitioner's guilt. (Dkt. 133, Ex. A at 1-8, 10-11.) The Arizona Supreme Court denied a petition for review without comment. (Dkt. 27, Ex. P.) Analysis The government violates its obligation under Brady where (1) the evidence in question was favorable to the accused, (2) the government willfully or inadvertently suppressed the
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evidence, and (3) prejudice resulted from the suppression (i.e., the evidence was "material"). Strickler v. Greene, 527 U.S. 263, 281-82 (1999); see Banks v. Dretke, 540 U.S. 668, 691 (2004); Kyles v. Whitley, 514 U.S. 419, 433 (1995). Evidence is material for Brady purposes "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Kyles, 514 U.S. at 433 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)); see Banks, 540 U.S. at 699; Strickler, 527 U.S. at 280. The duty to disclose includes impeachment as well as exculpatory material. Bagley, 473 U.S. at 676. Regarding Brady's prejudice prong, the Supreme Court has explained that materiality does not require a showing that the defendant would have been acquitted had the suppressed evidence been disclosed. Kyles, 514 U.S. at 434-35. Instead, a Brady violation occurs if "the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the outcome." Id. at 435; see Giglio, 405 U.S. at 154 (new trial required where "false testimony could . . . in any reasonable likelihood have affected the judgement of the jury"). The test for materiality is the same whether the defense made no request, a general request, or a specific request for disclosure of the evidence. Bagley, 473 U.S. at 682. Petitioner contends that the failure to disclose that Norton was offered a favorable deal in return for a statement implicating Petitioner violated Brady because it prevented jurors from understanding that Norton had a major incentive to cooperate with the State. (Id. at 5.) Respondents deny any deal was offered to Norton prior to his December 29, 1981 statement. (See Dkt. 129 at 13.) Nevertheless, even assuming that an oral agreement to try Norton as a juvenile was made in return for his December 29 statement, Petitioner cannot show a reasonable probability that disclosure of such information would have changed the outcome or put the case in a "new light" sufficient to undermine confidence in the verdict. See Kyles, 514 U.S. at 435. The PCR court correctly noted that the jury was aware that Norton was offered a plea deal in which he would be tried as a juvenile and sentenced to confinement only until he
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reached the age of eighteen. The plea agreement was admitted into evidence. The agreement provided that to obtain this leniency, Norton's testimony against Petitioner and Libberton must be "consistent" with his December 29 statement implicating them in the murder. The agreement further provided that the deal would be null and void if such testimony was not forthcoming. Thus, the jury knew that Norton had a motive to cooperate with the prosecution and that his lenient treatment was predicated on such cooperation. Prior to any claimed contact between Norton's attorney and juvenile prosecutors, Norton had already recounted to police essentially the same facts regarding Petitioner's involvement in the killing of Juan Maya as the information provided in the December 29 statement and his subsequent trial testimony. This Court agrees with the state court's determination that these earlier statements implicating Petitioner could have effectively countered any claim that Norton's December 29 statement and trial testimony were not credible because they were prompted by a favorable plea deal. Further, defense counsel extensively impeached Norton's veracity, emphasizing that Norton was dishonest during numerous police interviews. (RT 9/27/82 at 817-19, 854-55.) In addition, as noted by the PCR court, there was overwhelming evidence of Petitioner's guilt beyond Norton's testimony. Witness Daniel McIntosh testified that Petitioner confessed to killing Maya. (RT 9/22/82 at 488-89.) His testimony of what Petitioner told him is consistent with Norton's description of the events. (See id.) Petitioner himself testified at trial. He admitted that he showed authorities where the body was located. This was corroborated by Detective Davis's testimony. (RT 9/21/82 at 232-33.) Although Petitioner claimed he was coerced into participating in Maya's murder, the trial court at sentencing characterized his claims of duress and coercion as "blatant perjury" (RT 11/23/82 at 1458), and the jury, in finding him guilty, rejected this assertion as well. For all these reasons, the Court concludes that had evidence of an oral agreement prior to Norton's December 1981 sworn statement been presented at trial, there is no reasonable probability that Petitioner would have been acquitted of the murder charge. As a result, the PCR court's denial of Petitioner's claim was not an unreasonable application of the principles
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outlined in either Brady or Giglio. Evidentiary Development Petitioner requests a hearing to present "significant evidence" he was not permitted to present in state court. In particular, Petitioner "wishes to obtain testimony from Norton . . . that should show Norton was not merely asked to testify accurately but that his testimony needed to implicate Mr. James." (Dkt. 108 at 8.) In addition, Petitioner seeks "to present evidence that, had Norton's agreement been disclosed and the jury made aware of it, Mr. James would not have testified, a concern that the state court lightly dismissed without reasoned explanation." (Id.) As discussed above, substantial evidence of guilt in addition to Norton's and Petitioner's testimony was presented at trial. For this reason, and because the jury already was aware that Norton had a strong motive to provide testimony consistent with his December 1981 statement to police, Petitioner has not alleged facts which, if proved, would entitle him to relief. See Townsend, 372 U.S. at 312-13. Thus, even assuming Petitioner exercised due diligence in seeking evidentiary development in state court, he is not entitled to further evidentiary development of this claim. Claim 2 - The State Allowed False Testimony by Norton Petitioner alleges that his rights were violated when the State refused to correct Martin Norton's false testimony that he was not offered a deal in exchange for his December 29, 1981 statement. (RT 9/27/82 at 810-11.) Petitioner presented this claim in his 1995 PCR petition. Citing United States v. Agurs, 427 U.S. 97 (1976), the state court rejected the claim, stating that even presuming the existence of the "secret" pre-plea deal and the State's knowledge: [a] new trial is required [only] if "there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." 427 U.S. at 103. . . . In applying this standard the court is again faced with the overwhelming independent evidence of Petitioner's guilt, including his confession to McIntosh and his own incredible testimony. Additionally, and as stated previously, the jury had substantial reason to question Norton's motives even without knowledge of the alleged agreement. They knew the nature of the deal
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which followed the statement, and any reasonable jury would simply have questioned Norton's plain motive for making his statements: the hope for just such an agreement. . . . The trial judge had a plethora of evidence to support the findings in the special verdict, aside from the testimony of witness Norton, concerning "especially heinous, cruel or depraved." For example, the victim, Juan Maya, was transported about 100 miles before he was killed. The trial judge knew the condition of the body, with all its wounds, and that the defendant bragged about the killing. Thus, there is no reasonable likelihood that either the testimony in question (Norton saying there was no deal before he made his statement on December 29, 1981) or the prosecutor's remarks to the jury in closing argument [that there was no deal prior to the December 29 statement] could have affected the jury's verdict, or the judge's sentence. . . . The facts, even assuming their truth, do not raise a claim which would likely alter the verdict or sentence. (Dkt. 133, Ex. A at 13-14.) In Napue v. Illinois, the Court held that the knowing use of false evidence by the state, or the failure to correct false evidence, violates due process. 360 U.S. 264, 269 (1959). To prevail on a Napue claim, the petitioner must show that (1) the testimony was actually false, (2) the prosecution knew or should have known that the testimony was actually false, and (3) the false testimony was material. Hayes v. Brown, 399 F.3d 972, 984 (9th Cir. 2005) (en banc). For the purpose of Napue claims, materiality is determined by whether there is any reasonable likelihood that the false testimony could have affected the judgment of the jury, "in which case the conviction must be set aside." Belmontes v. Brown, 414 F.3d 1094, 1115 (9th Cir. 2005) (quoting Agurs, 427 U.S. at 103 (1976). "Under this materiality standard, [t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Hayes, 399 F.3d at 984 (internal quotation omitted). As explained with respect to Claim 1, the evidence at issue goes solely to Norton's credibility. Defense counsel extensively impeached Norton on cross examination, and the jury was aware of the plea agreement. In addition, Daniel McIntosh testified that Petitioner confessed to killing Maya, and the evidence at trial established that Petitioner inculpated himself by leading police to Maya's body. Thus, even assuming the existence of a pre-plea
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oral agreement and the State's failure to correct Norton's denial of one, the state court's determination that there was no constitutional violation because "there is no reasonable likelihood [it] . . . could have affected the jury's verdict" was not an unreasonable application of Napue. Petitioner is not entitled to federal habeas relief on this claim. In addition, because Petitioner has not alleged facts that, if proved, would entitle him to relief, his request for evidentiary development will be denied. See Townsend, 372 U.S. at 312-13. Claim 3 - Petitioner's Rights Were Violated by the Consistency Clause of Norton's Plea Agreement Petitioner alleges that the provision in Norton's plea agreement requiring him to testify in a manner "consistent" with his December 29 statement violated Petitioner's right to due process. Petitioner presented this claim in his 1995 PCR petition, in which he argued that this "consistency clause" prevented Norton from providing evidence at trial that would have supported a "diminished capacity" mitigating factor at sentencing. (Dkt. 19, Ex. L at 25.) To support this contention he proffered a 1991 affidavit from Norton wherein Norton states that Petitioner was ingesting large amounts of mind-altering drugs in the weeks before the homicide and that his behavior was greatly altered when he was under the influence of such drugs. (Id.; see also Dkt. 109, Ex. 11.) In denying relief, the PCR court relied on State v. Fisher (Fisher III), 176 Ariz. 69, 74, 859 P.2d 179, 184 (1993): To constitute a due process violation, Petitioner needs to establish more than just the existence of a consistency clause. The Petitioner is required to demonstrate that the state "obtained a conviction through use of testimony that was tainted by an improper consistency provision." Fisher III at 176 Ariz. 74. In Fisher the witness was required to testify in a manner that inculpated the defendant, her husband, in the commission of a crime. In exchange for that testimony she would be granted leniency. In this case, based on the "secret" agreement, the witness was required to give a truthful statement to prosecutors and if a truthful statement was given and if there was cooperation, then the witness would get the benefits of a bargain. Petitioner relies on Norton's 1991 affidavit to make a showing that the trial testimony was tainted by the requirement of consistency. The conclusion is inescapable that Norton's testimony was not tainted by the requirement of consistency. Although the affidavit presents statements concerning Petitioner's use of substances (which petitioner alleges would have supported a claim of mitigation at sentencing), the affidavit as a whole is consistent with his trial testimony. Throughout the affidavit Petitioner is portrayed as the
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leader and driving force behind the murder. (Dkt. 133, Ex. A at 16-17.) The PCR court relied on state case law in determining that testimony pursuant to the consistency provision in Norton's plea agreement did not rise to a violation of due process. Petitioner does not cite, and the Court has not identified, any Supreme Court or federal law holding that testimony by an accomplice witness pursuant to a consistency clause in a plea agreement violates due process of law under the Fourteenth Amendment. Because there is no clearly established Supreme Court law holding that accomplice testimony predicated on "consistency clause" provisions in plea agreements violates federal due process, Petitioner cannot obtain habeas relief on this claim. See Cook v. Schriro, 516 F.3d 802, 818 (9th Cir. 2008) (citing Musladin, 127 S. Ct. at 654); Williams, 529 U.S. at 381. To the extent Petitioner seeks review of the state court's application of state precedent, namely Fisher III, it is not the province of a federal habeas court to review state court applications of state law.6 See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Thus, as a matter of law, Petitioner is not entitled to relief, and his request for evidentiary development of the claim will be denied. Claim 4 - Petitioner's Due Process Rights Were Violated When the State Vouched for Norton's Credibility Petitioner asserts the prosecutor "repeatedly suggested that she could guarantee Norton's truthfulness, and she characterized Norton's agreement to testify truthfully in an improper way." (Dkt. 108 at 19.) To support this contention, Petitioner cites the following exchange at trial: [PROSECUTOR]: Now, subsequently sometime thereafter out at Durango your attorney, Robert Wertsching and I and Detective Davis met with you, is that correct? [NORTON]: Yes.
6

The Court disagrees that Fisher III held that consistency clauses in plea agreements violate federal due process. In fact, the court avoided this question altogether, holding simply that such provisions are "unenforceable" under Arizona law. See Fisher III, 176 Ariz. at 73, 859 P.2d at 183.
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[PROSECUTOR]: Now, you weren't offered any kind of plea agreement at that time, were you? [NORTON]: No. [PROSECUTOR]: And I told you that I only want you to tell me the truth? [NORTON]: Yes. [PROSECUTOR]: And you substantially told us exactly what had happened to Juan Maya and what you told the jury again today; is that correct? [NORTON]: Yes. [PROSECUTOR]: Then later, Mr. Norton, you entered into a plea agreement with the State upon the advice of your attorney; is that correct? [NORTON]: Yes. [PROSECUTOR]: Let me show you State's Exhibit 149 and ask if you recognize the document? [NORTON]: Yes. [PROSECUTOR]: . . . and in that agreement you agreed to testify truthfully and fully against Lawrence Libberton and Steven Craig James at any hearing that is necessary? [NORTON]: Yes. (RT 9/28/82 at 810-12.) Petitioner contends that the prosecutor's statements that she was present when Norton gave his statement and told him to tell the truth, and that he then "told her exactly what happened," constitute improper vouching because they led the jury to believe that she personally believed in the witness's credibility. Furthermore, according to Petitioner, the comments strongly implied that the prosecutor was able to verify that Norton had told the truth because she apparently knew "exactly what happened." (Dkt. 108 at 20.) The Arizona Supreme Court rejected this claim on direct appeal: James argues that the prosecutor improperly vouched for the state's most important witness on direct examination, and James claims this conduct constitutes reversible error. Martin Norton was the state's only eyewitness. At the time of the crime he was fourteen years old, and he was a participant. On direct examination the prosecutor elicited that Norton had talked to the prosecutor before a plea agreement was reached and that Norton gave a statement. The prosecutor also elicited that Norton was then given a plea agreement in exchange for his truthful testimony. James argues that the state portrayed itself as the guarantor of the truthfulness of Norton's testimony. We
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find this issue is controlled by State v. McCall, 139 Ariz. 147, 159, 677 P.2d 920, 932 (1983) (state may elicit this testimony on direct examination), and the claim is without merit. James, 141 Ariz. at 146, 685 P.2d at 1298. Analysis Prosecutorial misconduct occurs when a prosecutor vouches for the credibility of a witness. United States v. Young, 470 U.S. 1, 18-19 (1985); Lawn v. United States, 355 U.S. 339, 359-60 n.15 (1958); United States v. Berger, 295 U.S. 78, 86-88 (1935). "Vouching consists of placing the prestige of the government behind a witness through personal assurances of the witness's veracity, or suggesting that information not presented to the jury supports the witness's testimony." United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993) (citing United States v. Molina, 934 F.2d 1440, 1445 (9th Cir. 1991); United States v. Roberts, 618 F.2d 530, 533 (9th Cir. 1980)). In Necoechea, the Ninth Circuit noted: Vouching is especially problematic in cases where the credibility of witnesses is crucial, and in several cases applying the more lenient harmless error standard of review, [courts] have held that such prosecutorial vouching requires reversal. At the same time, we have recognized that prosecutors must have reasonable latitude to fashion closing arguments, and thus can argue reasonable inferences based on the evidence, including that one of the two sides is lying. 986 F.2d at 1276 (citations omitted). To warrant habeas relief, Petitioner must show that any vouching "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974)); see also Davis v. Woodford, 384 F.3d 628, 643-44 (9th Cir. 2004) (applying Darden to claims involving prosecutorial vouching). In State v. McCall, relied on by the Arizona Supreme Court in this case, the court held that references to truthful testimony requirements on direct exam prior to any direct attack by the defense are permissible.7 139 Ariz. at 159, 677 P.2d at 932. Petitioner has not In McCall, the Arizona Supreme Court held that bringing a "truthful testimony" provision in a prosecution witness's plea agreement to the attention of the jury during direct examination was not improper where the prosecutor offered no personal opinion as to the witness's veracity or referred to any outside information not made available to the jury to bolster the witness's credibility. 139 Ariz. at 159, 677 P.2d at 932.
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demonstrated that the holding in McCall is contrary to any United States Supreme Court precedent. See Carey v. Musladin, 127 S. Ct. at 654. Under the Ninth Circuit's interpretation of Supreme Court law, the prosecutor's reference to her conversation with Norton in December 1981, her request that Norton tell the truth, her reliance on the provisions in the plea agreement requiring him to testify truthfully, and the admission of the agreement into evidence on direct examination, potentially constitute improper vouching. See United States v. Lew, 875 F.2d 219, 223 (9th Cir. 1989) (citing United States v. Wallace, 848 F.2d 1464, 1474 (9th Cir. 1988), for the proposition that "it was improper to allow the prosecution to elicit testimony on direct examination regarding the truthfulness requirement of a plea agreement"); United States v. Shaw, 829 F.2d 714, 717 (9th Cir. 1987) ("When the prosecution refers, as it did here, to the requirement of truthfulness before the issue of bias is drawn, it runs the risk that its reference will be interpreted as an attempt to establish truthfulness and suggest verifiability.") Nonetheless, in Shaw the court recognized that "what was said is more important than when it was said, at least in a case such as this one where an attack on the witness' credibility was almost certain to be forthcoming." Id. The court further concluded, based in part on the absence of "extra-record" references indicating verification of the witness's testimony, that the vouching did not materially affect the verdict. Id. Applying these principles, Petitioner cannot establish that a constitutional violation resulted from the prosecutor's allegedly improper conduct. Nothing in the prosecutor's remarks suggested that she was able to discern that Norton was telling the truth or that she had information to this effect which was not made available to the jury. As in Shaw, it was a certainty that the defense would attack the witness's credibility. Norton, an eyewitness to Maya's murder and the State's key witness, was a troubled adolescent who had admitted his own participation in the crime. As anticipated, he was cross-examined vigorously. Defense counsel attacked his credibility, and Norton admitted he was prone to telling lies and could not count all the times he had lied to authorities during the course of the investigation. (See RT 9/27/82 at 817-19, 854-55.)
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Moreover, Petitioner was not prejudiced by the prosecutor's remarks. This conclusion is supported by the totality of the evidence against Petitioner presented at trial. As already recounted, irrespective of Norton's testimony, the State presented other weighty evidence of guilt, including testimony from Daniel McIntosh that Petitioner confessed to killing Maya, as well as Petitioner's own inculpatory actions which led police to the body. For all of these reasons, Petitioner cannot show that the remarks of the prosecutor, or the references to and admission of the plea agreement into evidence, so infected the trial with unfairness that Petitioner was denied due process of law. See Darden, 477 U.S. at 181; Davis, 384 F.3d at 643-44. The Arizona Supreme Court's denial of relief on the vouching issue was neither contrary to nor an unreasonable application of clearly established federal law. Therefore, Petitioner is not entitled to habeas relief. Further, because Petitioner has not alleged facts that, if proved, would entitle him to relief, his request for evidentiary development will be denied. See Townsend, 372 U.S. at 312-13. Claim 5 - Petitioner's Due Process Rights Were Violated When the State Required Daniel Mcintosh to Testify in a Manner Consistent with His Previous Deposition Testimony Petitioner asserts that his due process rights were violated when, after Daniel McIntosh's 1981 deposition but before trial, the prosecutor and another unidentified person representing the State threatened McIntosh with prosecution for perjury if he did not testify in a manner consistent with his deposition. (Dkt. 108 at 22.) Petitioner further alleges that his trial lawyer was not aware of this threat. Background At trial, McIntosh testified that Petitioner, Libberton, and Norton murdered Maya. According to McIntosh, Petitioner told him about the murder; the version Petitioner provided to McIntosh was essentially consistent with Norton's testimony. (See RT 9/22/82 at 484-89.) On December 28, 1981, approximately nine months prior to trial, McIntosh was deposed by the prosecutor and defense attorneys for Libberton and Petitioner. As with his trial testimony, McIntosh stated in his deposition that Petitioner told him that he, Libberton, and Norton had taken Maya to "the desert," shot and beat him, and dumped his body down a
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mine shaft. (PCR-ROA at 681 (1981 McIntosh Dep. at 24).)8 McIntosh also stated in his deposition that on the evening of the murder, he was at Petitioner's trailer where they had drunk beer and smoked pot. (Id. at 8-9.) He stated that they had a party and that he eventually left because he "was all messed up, drunk and stoned." (Id. at 12.) McIntosh estimated that he, Libberton, and Petitioner split a case of beer, although "there could have been a few beers left" when he departed Petitioner's trailer at about midnight. (Id. at 39.) At trial, however, McIntosh stated that Petitioner only drank "a couple of beers" that evening. (RT 9/22/82 at 456.) In his state PCR proceedings, Petitioner proffered a 1993 affidavit and deposition of McIntosh in support of this claim. In his affidavit, McIntosh attested that Petitioner drank about twelve beers, smoked pot, and "dropped acid" on the evening prior to Maya's murder. (Dkt. 110, Ex. 20 at 2.) McIntosh reiterated these assertions in a 1993 depositi