Andriano v. Shinn

• Court: District Court, D. Arizona
• Decided: January 19, 2021
• Docket: 2:16-cv-01159
• Status: Unknown

Opinion

Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 1 of 143

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Wendi Elizabeth Andriano, No. CV-16-01159-PHX-SRB 10 Petitioner, DEATH PENALTY CASE 11 v. ORDER 12 David Shinn, et al., 13 Respondents. 14 15 Before the Court is the Petition for Writ of Habeas Corpus filed by Wendi Elizabeth 16 Andriano, an Arizona death row inmate. (Doc. 17.) Respondents filed an answer to the 17 petition and Andriano filed a reply. (Docs. 22, 42.) For the reasons set forth below, and 18 based on the Court’s review of the briefings and the entire record herein, the petition is 19 denied. 20 I. BACKGROUND 21 In 2004, Andriano was convicted of one count of first-degree murder and sentenced 22 to death for killing her husband. The following facts are taken from the opinion of the 23 Arizona Supreme Court affirming the conviction and sentence, State v. Andriano, 215 Ariz. 24 497, 161 P.3d 540 (2007), abrogated by State v. Ferrero, 229 Ariz. 239, 274 P.3d 509 25 (2012), and from the Court’s review of the record. 26 At about 2:15 a.m. on October 8, 2000, Andriano called Chris, a coworker who lived 27 at the same apartment complex, and asked her to watch the Andrianos’ children while she 28 took her husband, Joe, to the doctor. Joe was terminally ill with metastatic adenoid cystic Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 2 of 143

1 carcinoma. Andriano met Chris outside the apartment and told her Joe was dying. She 2 stated she hadn’t yet called 911. 3 Upon entering the apartment, Chris found Joe lying on the living room floor in the 4 fetal position. He had vomited, appeared weak, and was having difficulty breathing. While 5 Andriano was in another room calling 911, Joe told Chris that he needed help and had “for 6 a long time.” He asked why it was taking 45 minutes for the paramedics to show up. 7 Chris heard the paramedics arrive and went outside to direct them to the apartment. 8 As the paramedics were unloading their equipment, Andriano exited the apartment 9 screaming at them to leave. She returned inside and slammed the door. Chris and the 10 paramedics knocked on the door but no one answered. Instead of coming out the front door, 11 which opened onto the living room, Andriano went out through the back door, climbed 12 over the patio wall, and walked around the apartment building to the front door. She had 13 changed her shirt and her hair was wet. She told the paramedics that Joe was dying of 14 cancer and had a do-not-resuscitate order. The paramedics left. 15 Andriano later called 911 again and the same paramedics responded. When they 16 entered the apartment they found Joe lying dead on the floor in a pool of blood. He had 17 sustained brain hemorrhaging caused by blows to the back of his head. He had also suffered 18 a stab wound to his neck that severed his carotid artery. A broken bar stool covered in 19 blood was found near Joe’s body, along with a bloody kitchen knife and a belt. 20 The medical examiner determined that the brain hemorrhaging was caused by at 21 least 23 blows to the back of his head, eight to ten of which independently could have 22 rendered Joe unconscious. Defensive wounds on Joe’s hands and wrists indicated that he 23 was conscious for at least part of the attack. The medical examiner opined that the blows 24 to the head were sustained before the stab wound to the neck and that Joe was still alive, 25 although likely unconscious, when he was stabbed. The cause of death was blunt force 26 trauma and the stab wound. 27 Based on the blood spatter and other evidence, a Phoenix police detective opined 28 that Joe was lying down while he was being struck and did not get up during the attack.

-2- Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 3 of 143

1 The detective further opined, based on the absence of arterial spurting on the belt and the 2 knife, that those items were placed beside Joe’s body after he died. 3 After being taken into custody, Andriano called one of her coworkers and asked her 4 to hide certain items that were in Andriano’s business office. Andriano’s stepfather told a 5 police detective on the day of the murder, “I remember [Andriano] telling me that she 6 stabbed [Joe].” 7 A search of the Andrianos’ storage unit revealed an open cardboard shipping box 8 containing a 500–gram bottle of sodium azide, two Tupperware containers containing 9 sodium azide, a plastic knife and fork, and two pairs of latex gloves. Andriano’s 10 fingerprints were on the plastic knife and the bag in which the cardboard box was shipped. 11 In the Andrianos’ apartment, police found capsules filled with sodium azide in a bottle 12 labeled as an herbal supplement. Trace amounts of sodium azide were found in the contents 13 of a pot and two soup bowls in the kitchen. In all, 20.8 grams of the sodium azide were 14 unaccounted for. Trace amounts of sodium azide were found in Joe’s blood and gastric 15 contents. 16 Andriano had ordered the sodium azide, a poison used for pest control, over the 17 internet from a chemical distributor. For the transaction she used a false name and shipping 18 address and a fictitious business license. 19 In the months leading up to Joe’s murder, Andriano had attempted to procure a life 20 insurance policy on him. In doing so she falsely claimed that Joe did not have cancer, and 21 asked male friends to pose as Joe for the required physical examination, offering one of the 22 men as much as $50,000. 23 At trial Andriano testified that Joe, who had been contemplating suicide and decided 24 to take his life that night, swallowed several sodium azide capsules. The poison failed to 25 kill him, however, and he became verbally and physically abusive. He tried to strangle 26 Andriano with a telephone cord but she was able to cut the cord with a knife. When Joe 27 picked up the knife, she struck him with the bar stool in self-defense. Joe then threatened 28

-3- Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 4 of 143

1 to kill himself with the knife. Andriano testified that she tried to stop him and his neck was 2 cut during the struggle. 3 Andriano also presented evidence that she was a victim of domestic abuse. She 4 testified that throughout the course of their marriage Joe had been emotionally, physically, 5 and sexually abusive. An expert testified about the psychological effects of domestic abuse. 6 The jury found Andriano guilty of first-degree murder. At sentencing, the jury found 7 one aggravating factor: that the murder had been committed in an “especially cruel 8 manner” under A.R.S. § 13–751(F)(6).1 The jury then found that the evidence presented in 9 mitigation was not sufficiently substantial to call for leniency and returned a verdict of 10 death. The conviction and sentence were affirmed on direct appeal. Andriano, 215 Ariz. 11 497, 161 P.3d 540. 12 Andriano sought post-conviction relief (“PCR”) in state court, filing a petition 13 raising claims of ineffective assistance of trial and appellate counsel. (PCR pet., Doc. 28- 14 1, Ex. OOOOO.) The court dismissed the majority of Andriano’s claims as precluded or 15 not colorable, but granted a hearing on her penalty-phase ineffectiveness and conflict-of- 16 interest claims.2 (ME 10/30/12.) After the hearing, the court dismissed both claims. (ME 17 11/1/14.) The Arizona Supreme Court denied review without comment. 18 Andriano filed a petition for writ of habeas corpus in this Court on March 6, 2017. 19 (Doc. 17.) She subsequently filed a motion for evidentiary development, which the Court 20 denied. (Doc. 68.) In doing so the Court denied Claims 6, 10, 11, 15, 18, 19A, 21C, 21D, 21 and 21E as procedurally defaulted and barred from federal review, and Claims 4, 17, 22, 22 31, 35, and 36 as meritless. (Id.) 23 24 1 At the time of Andriano’s offense, Arizona’s capital sentencing scheme was set 25 forth in A.R.S. §§ 13–703 and 13–703.01 to –703.04. It is presently set forth in A.R.S. §§ 13–751 to –759. The Court refers throughout this order to the statutes in effect at the 26 time Andriano committed the murder. 27 2 Maricopa County Superior Court Judge Brian K. Ishikawa presided over both the 28 trial and the PCR proceedings.

-4- Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 5 of 143

1 II. APPLICABLE LAW 2 Federal habeas claims are analyzed under the framework of the Antiterrorism and 3 Effective Death Penalty Act (“AEDPA”).3 Pursuant to the AEDPA, a petitioner is not 4 entitled to habeas relief on any claim adjudicated on the merits in state court unless the 5 state court’s adjudication (1) resulted in a decision that was contrary to, or involved an 6 unreasonable application of, clearly established federal law or (2) resulted in a decision 7 that was based on an unreasonable determination of the facts in light of the evidence 8 presented in state court. 28 U.S.C. § 2254(d). 9 A state court decision is “contrary to” clearly established federal law 10 under § 2254(d)(1) if the decision applies a rule that contradicts the governing law set forth 11 in Supreme Court precedent, thereby reaching a conclusion opposite to that reached by the 12 Supreme Court on a matter of law, or if it confronts a set of facts that is materially 13 indistinguishable from a decision of the Supreme Court but reaches a different 14 result. Williams v. Taylor (Terry Williams), 529 U.S. 362, 405–06 (2000); see Early v. 15 Packer, 537 U.S. 3, 8 (2002) (per curiam). Under the “unreasonable application” prong 16 of § 2254(d)(1), a federal habeas court may grant relief where a state court “identifies the 17 correct governing legal rule from [the Supreme] Court’s cases but unreasonably applies it 18 to the facts of the particular . . . case” or “unreasonably extends a legal principle from 19 [Supreme Court] precedent to a new context where it should not apply or unreasonably 20 refuses to extend that principle to a new context where it should apply.” Williams (Terry), 21 529 U.S. at 407. 22 The Supreme Court has emphasized that under § 2254(d)(1) “an unreasonable 23 application of federal law is different from an incorrect application of federal law.” Id. 24 (O’Connor, J., concurring) (emphasis in original); see Bell v. Cone, 535 U.S. 685, 694 25 3 Andriano’s challenge to the constitutionality of the AEDPA (Doc. 17 at 32–35) is 26 meritless. See Crater v. Galaza, 491 F.3d 1119, 1125–26 (9th Cir. 2007) (holding that the 27 AEDPA violates neither the Suspension Clause nor the separation of powers doctrine).

-5- Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 6 of 143

1 (2002). Under § 2254(d), “[a] state court’s determination that a claim lacks merit precludes 2 federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the 3 state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting 4 Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The burden is on the petitioner to 5 show “there was no reasonable basis for the state court to deny relief.” Id. at 98. 6 Under § 2254(d)(2), habeas relief is available if the state court decision was based 7 upon an unreasonable determination of the facts. Miller-El v. Dretke (Miller-El II), 545 8 U.S. 231, 240 (2005). “[A] decision adjudicated on the merits in a state court and based on 9 a factual determination will not be overturned on factual grounds unless objectively 10 unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El v. 11 Cockrell (Miller-El I), 537 U.S. 322, 340 (2003). A state court’s factual determination is 12 presumed correct and a petitioner bears the burden of overcoming that presumption with 13 clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El I, 537 U.S. at 340. A 14 state court’s “factual determination is not unreasonable merely because [a] federal habeas 15 court would have reached a different conclusion in the first instance.” Wood v. Allen, 558 16 U.S. 290, 301 (2010). Instead, a federal habeas court “must be convinced that an appellate 17 panel, applying the normal standards of appellate review, could not reasonably conclude 18 that the finding is supported by the record.” Taylor v. Maddox, 366 F.3d 992, 1000 (9th 19 Cir. 2004), overruled on other grounds by Murray (Robert) v. Schriro, 745 F.3d 984, 999– 20 1000 (9th Cir. 2014). Satisfying § 2254(d)(2) is a “daunting” burden, “one that will be 21 satisfied in relatively few cases.” Id. at 1000. 22 For claims not adjudicated on the merits in state court, federal review is generally 23 not available when the claims have been denied pursuant to an independent and adequate 24 state procedural rule. Coleman v. Thompson, 501 U.S. 722, 750 (1991). In Arizona, there 25 are two avenues for petitioners to exhaust federal constitutional claims: direct appeal and 26 PCR proceedings. Rule 32 of the Arizona Rules of Criminal Procedure governs PCR 27 proceedings and provides that a petitioner is precluded from relief on any claim that could 28 have been raised on appeal or in a prior PCR petition. Ariz. R. Crim. P. 32.2(a)(3).

-6- Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 7 of 143

1 For unexhausted and defaulted claims, “federal habeas review . . . is barred unless 2 the prisoner can demonstrate cause for the default and actual prejudice as a result of the 3 alleged violation of federal law, or demonstrate that failure to consider the claims will result 4 in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. Coleman further held 5 that ineffective assistance of counsel in PCR proceedings did not establish cause for the 6 procedural default of a claim. Id. 7 In Martinez v. Ryan, the Court established a “narrow exception” to the rule 8 announced in Coleman. 566 U.S. 1, 9 (2012). Under Martinez an Arizona petitioner may 9 establish cause and prejudice for the procedural default of an ineffective assistance of trial 10 counsel claim by demonstrating that (1) PCR counsel was ineffective and (2) the 11 underlying ineffective assistance claim has some merit. See Cook v. Ryan, 688 F.3d 598, 12 607 (9th Cir. 2012) (quoting Martinez, 566 U.S. at 14); Ramirez v. Ryan, 937 F.3d 1230, 13 1242 (9th Cir. 2019). 14 To establish “cause” under Martinez, a petitioner must demonstrate that PCR 15 counsel was ineffective under Strickland v. Washington, 466 U.S. 668 (1984). Ramirez, 16 937 F.3d at 1241. Strickland requires demonstrating that PCR counsel’s performance was 17 deficient and there was a reasonable probability that, absent the deficient performance, the 18 result of the PCR proceedings would have been different. Id. Determining whether there 19 was a reasonable probability that the result of PCR proceedings would have been different 20 “is necessarily connected to the strength of the argument that trial counsel’s assistance was 21 ineffective.” Id. (quoting Clabourne v. Ryan, 745 F.3d 362, 377 (9th Cir. 2014), overruled 22 on other grounds by McKinney v. Ryan, 813 F.3d 798, 819 (9th Cir. 2015)). “[I]f the claim 23 of ineffective assistance of trial counsel is implausible, then there could not be a reasonable 24 probability that the result of post-conviction proceedings would have been different.” 25 Clabourne, 745 F.3d at 377. 26 To establish “prejudice” under Martinez, a petitioner must demonstrate that his 27 underlying ineffective assistance of trial counsel claim is “substantial.” Id. In Martinez, the 28 Supreme Court defined substantial as a claim that “has some merit.” Martinez, 566 U.S. at

-7- Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 8 of 143

1 13. The procedural default of an ineffective assistance of trial counsel claim will not be 2 excused if the claim “is insubstantial, i.e., it does not have any merit or . . . is wholly without 3 factual support.” Id. at 15–16. To determine whether a claim is “substantial” for purposes 4 of establishing prejudice under Martinez, the court undertakes a “general assessment” of 5 the merits of the underlying ineffective assistance of trial counsel claim. Ramirez, 937 F.3d 6 at 1241 (citing Cook, 688 F.3d at 610 n.13). 7 While “prejudice” for purposes of “cause and prejudice” requires a showing only 8 that the underlying claim is “substantial,” a petitioner still must satisfy the second prong of 9 Strickland with respect to PCR counsel’s performance. Clabourne, 745 F.3d at 377. 10 Martinez applies only to claims of ineffective assistance of trial counsel; it has not 11 been expanded to other types of claims. See Pizzuto v. Ramirez, 783 F.3d 1171, 1177 (9th 12 Cir. 2015) (explaining that the Ninth Circuit has “not allowed petitioners to substantially 13 expand the scope of Martinez beyond the circumstances present in Martinez”); Hunton v. 14 Sinclair, 732 F.3d 1124, 1126–27 (9th Cir. 2013) (denying petitioner’s argument that 15 Martinez permitted the resuscitation of a procedurally defaulted Brady claim, holding that 16 only the Supreme Court can expand the application of Martinez to other areas); see also 17 Davila v. Davis, 137 S. Ct. 2058, 2062–63 (2017) (explaining that the Martinez exception 18 does not apply to claims of ineffective assistance of appellate counsel). 19 III. DISCUSSION 20 Andriano raises 36 claims in her habeas petition, some of which include numerous 21 subclaims. These include both exhausted claims and unexhausted claims. The Court denied 22 a number of the claims in its order on evidentiary development. (Doc. 68.) The Court 23 addresses the remaining claims as follows. 24 CLAIM 1 25 Andriano alleges that the prosecutor “engaged in repeated and pervasive 26 misconduct,” violating Andriano’s rights under the Fifth, Sixth, Eighth, and Fourteenth 27 Amendments. (Doc. 17 at 35–59.) Specifically, she alleges that the prosecutor (1) 28 inappropriately focused on irrelevant and salacious information about Andriano’s sex life;

-8- Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 9 of 143

1 (2) misstated facts and vouched for his case; and (3) made unfounded attacks on Dr. Sharon 2 Murphy, Andriano’s domestic-abuse expert. (Id. at 44–54.) Andriano did not raise these 3 claims on direct appeal. See Andriano, 215 Ariz. at 503 n.3, 161 P.3d at 546. 4 Andriano also alleges that trial and appellate counsel performed ineffectively by 5 failing to challenge the alleged misconduct. (Doc. 17 at 54–59.) She raised these claims in 6 her PCR petition (PCR pet., Doc. 28-1, Ex. OOOOO at 63–69, 70), and the PCR court 7 denied them on the merits. (ME 10/30/12 at 3, 6.) The Arizona Supreme Court denied 8 review without comment.4 9 A. Background 10 On direct appeal, Andriano alleged that the trial court erred by admitting evidence 11 of her extramarital affairs. The Arizona Supreme Court rejected her argument: 12 During the summer of 2000, Andriano had a brief extramarital affair with Rick, a resident of the apartment complex where she lived and worked as the 13 property manager. That affair ended in July when Rick learned that Andriano 14 was married and had children. Despite his rejection of her advances, Andriano aggressively pursued Rick. . . . 15 16 During that same summer, Andriano frequented bars on a weekly basis with coworkers and friends. There, she was seen dancing and flirting and even 17 groping and kissing men. On September 27, the evening after Joe’s fourth 18 chemotherapy treatment, Andriano went to a dance club and began dancing provocatively with and kissing a man she met there. They ultimately returned 19 to the Andrianos’ apartment and had sex. During a phone conversation the 20 following day, Andriano told the man her husband had died of cancer.

21 . . . The evidence was admissible under Rule 404(b) . . . as evidence of 22 Andriano’s motive for killing her husband—to be free to pursue other relationships. Supporting this purpose was testimony from Andriano’s 23 hairdresser, who testified that Andriano told her in February of 2000 that she would have divorced Joe were he not ill. At a later visit, Andriano disclosed 24 that Joe “wanted to keep the marriage together,” but she was “emotionally 25 out of it” and “wished he was dead so she could move on with her life.” Around August of 2000, Andriano confided to the hairdresser that she was 26 27 4 When the state’s highest court denies a claim summarily, the federal 28 court looks through to the last reasoned decision, Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991), which in this case is the decision of the PCR court.

-9- Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 10 of 143

1 interested in another man who hesitated to get involved in a relationship 2 because she was married.

3 The evidence was also admissible under Rule 404(b) to rebut the defense theory that Andriano was a domestic violence victim who lived in fear of her 4 abusive husband, whom she bludgeoned to death in self-defense. 5 Andriano maintains, nonetheless, that the evidence was unfairly prejudicial 6 because “[t]he prosecutor took every opportunity to infuse the trial with 7 marginally relevant information about Andriano’s partying and man- chasing.” Nearly all the examples Andriano provides relate to the 8 prosecutor’s comments in the guilt phase closing arguments. Comments in 9 closing arguments, however, are not evidence, as the jury was instructed, and thus the comments do not render unfairly prejudicial evidence that is 10 otherwise properly admitted. 11 Another incident about which Andriano complains occurred during the cross- 12 examination of defense expert Dr. Sharon Murphy. The prosecutor asked Dr. 13 Murphy whether Andriano used a personal lubricant during sexual intercourse with Rick. The door to this line of questioning had been opened 14 by defense counsel’s questioning on direct examination, to which Dr. 15 Murphy responded that Andriano and Joe “needed to use a lubricant” during intercourse. Considered in context, the questioning was designed to rebut Dr. 16 Murphy’s suggestion, elicited by defense counsel’s question, that Andriano’s need to use a lubricant when she had sex with Joe showed that Joe was an 17 abusive spouse. The evidence elicited was not unfairly prejudicial. 18 The final incident relates to a comment the prosecutor made during 19 aggravation phase closing arguments and therefore is not relevant to whether 20 such evidence was admissible in the guilt phase. The probative value of evidence of Andriano’s extramarital relationships is not substantially 21 outweighed by the danger of unfair prejudice, and thus the trial court did not 22 abuse its discretion in admitting the evidence. 23 Andriano, 215 Ariz. at 503–04, 161 P.3d at 546–47 (footnote and citations omitted). 24 Andriano argues that this ruling was an unreasonable application of clearly established law 25 under 28 U.S.C. § 2254(d)(1). (Doc. 17 at 37.) 26 In her PCR petition, Andriano alleged that trial counsel performed ineffectively by 27 failing to object to the prosecutor’s “pervasive instances” of misconduct, which included 28 making references to Andriano’s “hyper-sexual behavior,” implying that “the State

- 10 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 11 of 143

1 possessed evidence of factual matters that was [sic] never introduced at trial,” and “making 2 unfounded accusations that a defense expert was unethical.” (PCR pet., Doc. 28-1, Ex. 3 OOOOO at 63–65.) Andriano further alleged that appellate counsel performed 4 ineffectively by failing to challenge the prosecutor’s actions on appeal. (Id. at 70.) 5 The PCR court construed this claim as alleging both prosecutorial misconduct and 6 ineffective assistance of counsel. With respect to the former, the court found the claim 7 waived and precluded under Arizona Rule of Criminal Procedure 32.2(a)(3) because it was 8 not raised on direct appeal. (ME 10/30/12 at 3.) The court alternatively addressed the 9 claim’s merits and denied relief because the Arizona Supreme Court had found the 10 evidence admissible: 11 [T]he defendant alleges that numerous instances of prosecutorial misconduct deprived her of due process and violated her right to effective assistance of 12 counsel. Specifically, she claims that references to her extramarital lifestyle 13 were improper. However, the defendant raised and the Supreme Court rejected the admissibility of other act evidence regarding her extramarital 14 affairs on direct appeal. That Court concluded that this Rule 404(b) evidence 15 served to establish a motive for the murder and to rebut the defendant’s domestic violence victim/self-defense theory. Andriano, 215 Ariz. at 503, 16 161 P.3d at 546. Comment upon properly-admitted evidence by a prosecutor 17 is appropriate.

18 Although noting that the defendant did not allege prosecutorial misconduct 19 on appeal, the Supreme Court nonetheless addressed the prosecutor’s statements about defendant’s actions and observed that the majority of them 20 occurred during the guilt phase closing arguments. Id. at 503 & n.3. The 21 Court noted that “[c]omments in closing arguments, however, are not evidence, as the jury was instructed, and thus the comments do not render 22 unfairly prejudicial evidence that is otherwise properly admitted.” Id. 23 (Id.) The court further held that, “[r]egarding any alleged prosecutorial misconduct . . . the 24 prosecutor did not commit misconduct.” (Id. at 6.) 25 The PCR court also addressed and denied Andriano’s claim of ineffective assistance 26 of appellate counsel, finding that because the prosecutor did not commit misconduct, the 27 Arizona Supreme Court “would not have reversed the defendant’s conviction on that 28 basis.” (ME 10/30/12 at 6.)

- 11 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 12 of 143

1 Andriano alleges that the PCR court’s decision was based on an unreasonable 2 application of clearly established federal law and an unreasonable determination of the 3 facts. (Doc. 17 at 38.) 4 B. Clearly established federal law: prosecutorial misconduct 5 The appropriate standard of federal habeas review of a claim of prosecutorial 6 misconduct is “the narrow one of due process, and not the broad exercise of supervisory 7 power.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. 8 DeChristoforo, 416 U.S. 637, 642 (1974)). A petitioner is not entitled to relief in the 9 absence of a due process violation even if the prosecutor’s comments were “undesirable or 10 even universally condemned.” Id. Therefore, to succeed on a claim of prosecutorial 11 misconduct, a petitioner must prove not only that the prosecutor’s remarks and other 12 conduct were improper but that they “so infected the trial with unfairness as to make the 13 resulting conviction a denial of due process.” Donnelly, 416 U.S. at 643; see Parker v. 14 Matthews, 567 U.S. 37, 45 (2012); Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir. 1995) 15 (explaining that relief is limited to cases in which the petitioner can establish that 16 prosecutorial misconduct resulted in actual prejudice); see also Smith v. Phillips, 455 U.S. 17 209, 219 (1982) (“[T]he touchstone of due process analysis in cases of alleged 18 prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.”) 19 In determining if a petitioner’s due process rights were violated, the court “must 20 consider the probable effect [of] the prosecutor’s [remarks] . . . on the jury’s ability to judge 21 the evidence fairly.” United States v. Young, 470 U.S. 1, 12 (1985). To make such an 22 assessment, it is necessary to place the prosecutor’s remarks in context. See Boyde v. 23 California, 494 U.S. 370, 385 (1990); United States v. Robinson, 485 U.S. 25, 33–34 24 (1988); Williams v. Borg, 139 F.3d 737, 745 (9th Cir. 1998). In Darden, for example, the 25 Court assessed the fairness of the trial by considering whether the prosecutor’s comments 26 manipulated or misstated the evidence, whether the trial court gave a curative instruction, 27 and “[t]he weight of the evidence against petitioner.” 477 U.S. at 181–82; see Trillo v. 28 Biter, 769 F.3d 995, 1001 (9th Cir. 2014).

- 12 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 13 of 143

1 In the event a petitioner can establish a due process violation, to be found eligible 2 for relief he must also establish that the violation resulted in a “substantial and injurious” 3 effect on the verdict under the standard set forth in Brecht v. Abrahamson, 507 U.S. 619, 4 637 (1993). Fry v. Pliler, 551 U.S. 112, 121–22 (2007); see Wood v. Ryan, 693 F.3d 1104, 5 1113 (9th Cir. 2012). 6 Courts have substantial latitude when considering prosecutorial misconduct claims 7 because “constitutional line drawing [in prosecutorial misconduct cases] is necessarily 8 imprecise.” Donnelly, 416 U.S. at 645; Parker, 567 U.S. at 48 (explaining that the “Darden 9 standard is a very general one, leaving courts ‘more leeway . . . in reaching outcomes in 10 case-by-case determinations’”) (quoting Yarborough, 541 U.S. at 664). 11 C. Clearly established federal law: ineffective assistance of counsel 12 Claims of ineffective assistance of counsel are governed by the principles set forth 13 in Strickland v. Washington, 466 U.S. 668 (1984). To prevail under Strickland, a petitioner 14 must show that counsel’s representation fell below an objective standard of reasonableness 15 and that the deficiency prejudiced the defense. Id. at 687–88. The inquiry under Strickland 16 is highly deferential. “A fair assessment of attorney performance requires that every effort 17 be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of 18 counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at 19 the time.” Id. at 689; see Wong v. Belmontes, 558 U.S. 15, 16–17 (2009) (per curiam). The 20 “standard is necessarily a general one,” Bobby v. Van Hook, 558 U.S. 4, 7 (2009), because 21 “[n]o particular set of detailed rules for counsel’s conduct can satisfactorily take account 22 of the variety of circumstances faced by defense counsel or the range of legitimate 23 decisions regarding how best to represent a criminal defendant,” Strickland, 466 U.S. at 24 688–89. 25 To satisfy Strickland’s first prong, a defendant must overcome “the presumption 26 that, under the circumstances, the challenged action ‘might be considered sound trial 27 strategy.’” Strickland, 466 U.S. at 689. “The question is whether an attorney’s 28 representation amounted to incompetence under ‘prevailing professional norms,’ not

- 13 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 14 of 143

1 whether it deviated from best practices or most common custom.” Richter, 562 U.S. at 105 2 (quoting Strickland, 466 U.S. at 690). “The defendant bears the heavy burden of proving 3 that counsel’s assistance was neither reasonable nor the result of sound trial strategy.” 4 Murtishaw v. Woodford, 255 F.3d 926, 939 (9th Cir. 2001) (citing Strickland, 466 U.S. at 5 689). 6 Counsel’s strategy with respect to objections is entitled to deference, and reviewing 7 courts “indulge a strong presumption that counsel’s conduct falls within the wide range of 8 reasonable professional assistance.” Strickland, 466 U.S. at 689; see, e.g., United States v. 9 Mejia–Mesa, 153 F.3d 925, 931 (9th Cir. 1998) (explaining that “a few missed objections 10 alone, unless on a crucial point, do not rebut the strong presumption that counsel’s actions 11 (or failures to act) were pursuant to his litigation strategy and within the wide range of 12 reasonable performance.”). Trial counsel may properly decide to “refrain from objecting 13 during closing argument to all but the most egregious misstatements by opposing counsel 14 on the theory that the jury may construe their objections to be a sign of desperation or 15 hyper-technicality.” United States v. Molina, 934 F.2d 1440, 1448 (9th Cir. 1991); see 16 United States v. Necoechea, 986 F.2d 1273, 1281 (9th Cir. 1993) (“Because many lawyers 17 refrain from objecting during opening statement and closing argument, absent egregious 18 misstatements, the failure to object during closing argument and opening statement is 19 within the ‘wide range’ of permissible professional legal conduct.”); Dubria v. Smith, 224 20 F.3d 995, 1003–04 (9th Cir. 2000) (finding that failure to object to closing argument in 21 which prosecutor referred to defendant as “the biggest liar you’ve ever encountered” and 22 defendant’s story as a “piece of garbage” did not constitute deficient performance). 23 With respect to Strickland’s second prong, a petitioner must affirmatively prove 24 prejudice by “show[ing] that there is a reasonable probability that, but for counsel’s 25 unprofessional errors, the result of the proceeding would have been different. A reasonable 26 probability is a probability sufficient to undermine confidence in the outcome.” 466 U.S. 27 at 694; see Allen v. Woodford, 395 F.3d 979, 1000 (9th Cir. 2005) (explaining that the 28

- 14 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 15 of 143

1 defendant “‘bears the highly demanding and heavy burden [of] establishing actual 2 prejudice.’”) (quoting Williams (Terry), 529 U.S. at 394)). 3 Claims of ineffective assistance of appellate counsel are also evaluated under the 4 Strickland standard. See Moormann v. Ryan, 628 F.3d 1102, 1106 (9th Cir. 2010) 5 (citing Smith v. Robbins, 528 U.S. 259, 285 (2000)). First, the petitioner must show that 6 counsel’s performance was objectively unreasonable, which in the appellate context 7 requires the petitioner to demonstrate that counsel acted unreasonably in failing to discover 8 and brief a merit-worthy issue. Id. Second, the petitioner must show prejudice, which in 9 this context means that he must demonstrate a reasonable probability that, but for appellate 10 counsel’s failure to raise the issue, he would have prevailed in his appeal. Id.; see 11 Kimmelman v. Morrison, 477 U.S. 365, 375 (1986) (holding that to prove prejudice, a 12 petitioner must show that there is a reasonable probability the state appellate court would 13 have reversed the trial court’s decision). 14 Finally, under the AEDPA, ineffective assistance of counsel claims are subject to 15 two layers of deference. “Surmounting Strickland’s high bar is never an easy task,” Padilla 16 v. Kentucky, 559 U.S. 356, 371 (2010), and “[e]stablishing that a state court’s application 17 of Strickland was unreasonable under § 2254(d) is all the more difficult,” Richter, 562 U.S. 18 at 105. “When § 2254(d) applies, the question is not whether counsel’s actions were 19 reasonable. The question is whether there is any reasonable argument that counsel satisfied 20 Strickland’s deferential standard.” Richter, 562 U.S. at 105; see Knowles v. Mirzayance, 21 556 U.S. 111, 123 (2009) (discussing “doubly deferential judicial review that applies to a 22 Strickland claim under the § 2254(d)(1) standard”) (citing Yarborough v. Gentry, 540 U.S. 23 1, 5–6 (2003) (per curiam)). Under this standard of review, the court “gives both the state 24 court and the defense attorney the benefit of the doubt.” Burt v. Titlow, 571 U.S. 12, 15 25 (2013). 26 D. Analysis 27 In support of this claim, Andriano first outlines “the history of ethical complaints 28 and misconduct” against the prosecutor, Juan Martinez. (Doc. 17 at 40–44.) The Court

- 15 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 16 of 143

1 agrees with Respondents that accusations from other cases are not relevant to the issue 2 before it, which is “the fairness of [Andriano’s] trial, not the culpability of the prosecutor.” 3 Phillips, 455 U.S. at 219; see Trillo, 769 F.3d at 1001 (explaining that the court’s role in 4 reviewing prosecutorial misconduct claims “is not to punish society for the misdeeds of 5 the prosecutor” but “to ensure that the petitioner received a fair trial”). Accordingly, the 6 Court addresses only the prosecutor’s actions in Andriano’s case. 7 Respondents contend that Andriano’s claims of prosecutorial misconduct are both 8 procedurally defaulted and meritless. As noted above, the PCR court found that Andriano’s 9 claim of prosecutorial misconduct was precluded under Rule 32.2(a)(3) because it was not 10 raised on direct appeal. (ME 10/30/12 at 3.) Because this is an independent and adequate 11 state procedural bar, Stewart v. Smith, 536 U.S. 856, 860 (2002) (per curiam), the 12 prosecutorial misconduct claim is procedurally defaulted. The PCR court’s alternative 13 merits ruling does not nullify the default. Harris v. Reed, 489 U.S. 255, 264 n.10 (1989). 14 Andriano contends that the claim’s default can be excused by the ineffective 15 assistance of PCR and appellate counsel. (Doc. 17 at 36.) Under Martinez, the ineffective 16 performance of PCR counsel may excuse the default only of claims of ineffective 17 assistance of trial counsel. Pizzuto, 783 F.3d at 1177; Hunton, 732 F.3d at 1126–27. 18 However, ineffective assistance of appellate counsel may be used as cause to excuse a 19 procedural default where the particular ineffective assistance allegation was first exhausted 20 in state court as an independent constitutional claim. See Edwards v. Carpenter, 529 U.S. 21 446, 453 (2000); Murray v. Carrier, 477 U.S. 478, 489–90 (1986). As noted, PCR counsel 22 raised and exhausted a claim alleging that appellate counsel performed ineffectively by 23 failing to raise a claim of prosecutorial misconduct. (PCR pet., Doc. 28-1, Ex. OOOOO at 24 70.) 25 Regardless of their procedural status, however, the Court will consider Andriano’s 26 claims of prosecutorial misconduct on the merits.5 See 28 U.S.C. § 2254(b)(2) (allowing 27 5 The PCR court expressly addressed only the prosecutorial misconduct claim 28 concerning Andriano’s sexual history. (ME 10/03/12 at 3.) The court also stated, however, without further discussion, that “[r]egarding any alleged prosecutorial misconduct . . . the

- 16 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 17 of 143

1 denial of unexhausted claims on the merits); see also Lambrix v. Singletary, 520 U.S. 518, 2 524-525 (1997) (explaining that the court may bypass the procedural default issue in the 3 interest of judicial economy when the merits are clear but the procedural default issues are 4 not). The Court will do so applying AEDPA deference. See Clabourne, 745 F.3d at 383 5 (explaining that AEDPA deference applies to PCR court’s alternative ruling on the merits). 6 The Court will also review Andriano’s claims of ineffective assistance of trial and appellate 7 counsel, under the “doubly deferential” standard of Strickland and the AEDPA. See 8 Mirzayance, 556 U.S. at 123. 9 1. Focus on irrelevant and salacious information 10 a. Prosecutorial misconduct 11 Andriano alleges that the prosecutor committed misconduct by improperly focusing 12 on the details of her sexual history, including her extramarital affairs. (Doc. 17 at 45–50.) 13 Andriano cites the following instances of alleged misconduct from the guilt phase 14 of trial. The prosecutor: highlighted Andriano’s extramarital affairs during his opening 15 statement and closing argument6; cross-examined Andriano about her sexual history and 16 details of her sexual relationships7; questioned Rick Freeland and Travis Black about the 17 details of their sexual encounters with Andriano8; cross-examined Dr. Murphy about 18 Andriano’s sexual history, including whether she used a personal lubricant with Freeland9; 19 and cross-examined Andriano’s mother, Donna Ochoa, about Andriano’s sexual history 20 21 prosecutor did not commit misconduct.” (Id. at 6.) Andriano asserts that the PCR court 22 must be presumed to have rejected all of her prosecutorial misconduct claims on the merits. (Doc. 17 at 38.) The Court agrees. See Johnson v. Williams, 568 U.S. 289, 301 (2013) 23 (“When a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits. . . 24 .”) (citing Richter, 562 U.S. at 100). 25 6 See RT 9/7/04 at 25, 29, 31, 55; RT 11/16/04 at 18, 37, 63, 75–76, 84–85, 87–88. 26 7 See RT 10/28/04 at 75–77, 98–99; RT 11/1/04 at 35–54, 57, 89–92, 106–109; RT 11/2/04 at 35. 27 8 See RT 9/16/04 at 89–91, 108; RT 9/13/04 at 21, 66. 28 9 See RT 10/13/04 at 50, 65, 67–69, 73, 77, 104, 123, 148.

- 17 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 18 of 143

1 and whether bruises Donna had attributed to Joe could have been caused by Freeland 2 during intercourse with Andriano.10 (Doc. 17 at 44–51.) 3 Andriano also challenges the following incidents from the penalty phase of trial: the 4 prosecutor elicited from the State’s rebuttal mental-health expert, Dr. Michael Bayless, 5 evidence that Andriano had behaved flirtatiously during his evaluation of her11 and cross- 6 examined Gia Palicki, a friend who babysat for Andriano’s children, about Andriano’s sex 7 life with Joe.12 (Id.) 8 As discussed above, the Arizona Supreme Court rejected Andriano’s claim that the 9 trial court erred by admitting this evidence. Andriano, 215 Ariz. at 503–04, 161 P.3d at 10 546–47. The court found the evidence of extramarital affairs relevant to Andriano’s motive 11 for killing Joe and admissible to rebut her claim that she was a victim of domestic violence. 12 Id. at 503, 161 P.3d at 546. As to the details of those affairs, the court specifically rejected 13 Andriano’s challenge to the prosecutor’s questions to Dr. Murphy about whether Andriano 14 had used a personal lubricant with Freeland, finding that it rebutted Dr. Murphy’s 15 suggestion that Andriano used a lubricant for intercourse with Joe because he was abusive. 16 Id. at 503–04, 161 P.3d at 546–47. 17 The Arizona Supreme Court also found that the evidence of extramarital affairs was 18 not unfairly prejudicial. Id. at 503, 161 P.3d at 546. Finally, the court concluded that any 19 error in the prosecutor’s closing argument was not prejudicial because the trial court 20 instructed the jurors that counsel’s arguments are not evidence. Id. 21 The PCR court in its alternative merits ruling denied relief on the prosecutorial 22 misconduct claim because the Arizona Supreme Court found the evidence admissible. (ME 23 10/30/12 at 3.) That ruling was not based on an unreasonable application of clearly 24 established federal law or an unreasonable determination of the facts. 25 26 10 See RT 10/5/04 at 98–99, 154–55. 27 11 See R.T 12/15/04 at 14, 21, 38. 28 12 See RT 12/13/04, at 60–61.

- 18 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 19 of 143

1 As the PCR court found (id.), a prosecutor does not engage in misconduct by 2 commenting on evidence that was properly admitted. See United States v. Reyes, 660 F.3d 3 454, 463 (9th Cir. 2011) (explaining that because the evidence was “properly admitted, 4 Reyes cannot rely on the admission of that evidence to demonstrate prosecutorial 5 misconduct”) (citing United States v. Hinton, 31 F.3d 817, 824 (9th Cir. 1994)); see also 6 Cristini v. McKee, 526 F.3d 888, 900 (6th Cir. 2008) (“A prosecutor may rely in good faith 7 on evidentiary rulings made by the state trial judge and make arguments in reliance on 8 those rulings.”); Sweet v. Delo, 125 F.3d 1144, 1154 (8th Cir. 1997). 9 In concluding there was no prosecutorial misconduct, the PCR court also cited the 10 Arizona Supreme Court’s finding that the prosecutor’s comments during closing argument 11 were not unduly prejudicial because the trial court instructed the jury that the lawyers’ 12 arguments are not evidence. (ME 10/30/12 at 3.) Again, the PCR court’s decision was 13 reasonable. “A jury is presumed to follow” a judge’s instructions. Weeks v. Angelone, 528 14 U.S. 225, 234 (2000); see Leavitt v. Arave, 383 F.3d 809, 834 (9th Cir. 2004) (“[W]e note 15 that the jury was instructed that argument of counsel is not evidence. That instruction tends 16 to draw the sting from improper arguments.”); see also Cheney v. Washington, 614 F.3d 17 987, 997 (9th Cir. 2010) (explaining that arguments of counsel carry less weight with juries 18 than instructions from the court) (citing Boyde v. California, 494 U.S. 370, 384 (1990)). 19 Notwithstanding the findings by the Arizona Supreme Court and the PCR court as 20 to its admissibility, Andriano alleges that the prosecutor engaged in misconduct with 21 respect to evidence of her sexual history. She cites, for example, the prosecutor’s cross- 22 examination of Dr. Murphy about Andriano’s use of a personal lubricant. (Doc. 17 at 49.) 23 As the Arizona Supreme Court noted, Andriano opened the door to this evidence. 24 Id. at 504, 161 P.3d at 547. On direct examination by defense counsel, Dr. Murphy testified 25 that Andriano used a lubricant with Joe because she found no pleasure in the act of sexual 26 intercourse with him but felt forced to submit to his wishes. (RT 10/12/04 at 63.) This 27 testimony supported Dr. Murphy’s opinion that Andriano was a victim of domestic abuse. 28 On cross-examination, in questioning cited by Andriano as misconduct, the prosecutor

- 19 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 20 of 143

1 asked whether Dr. Murphy was aware that Andriano had told a friend that she used 2 lubricant with Joe because she found him “gross and skinny”—a circumstance which, Dr. 3 Murphy conceded, “had nothing to do with any domestic violence.” (RT 10/13/04 at 68.) 4 Dr. Murphy also acknowledged that she did not ask Andriano whether she used a lubricant 5 with Freeland. (Id. at 68–69.) This omission impacted the credibility of Dr. Murphy’s 6 opinion that use of a lubricant with Joe reflected Andriano’s status as domestic violence 7 victim. 8 This line of questioning was not prosecutorial misconduct. “Where the defendant 9 opens the door to an argument, it is fair advocacy for the prosecution to enter.” United 10 States v. Garcia-Guizar, 160 F.3d 511, 522 (9th Cir. 1998) (citations and internal quotation 11 marks omitted); see United States v. Mendoza-Prado, 314 F.3d 1099, 1105 (9th Cir. 2002) 12 (“The government may introduce otherwise inadmissible evidence when the defendant 13 opens the door by introducing potentially misleading testimony.”) (internal quotation 14 marks omitted). 15 Apart from the evidence and comments regarding Andriano’s extramarital affairs, 16 Andriano cites as misconduct the prosecutor’s questioning of Dr. Bayless, the State’s 17 penalty-phase rebuttal witness. (Doc. 17 at 48.) The prosecutor questioned Dr. Bayless 18 about Andriano’s demeanor when he interviewed her in jail. (RT 12/15/04 at 24.) Bayless 19 testified that Andriano was “being very flirtatious,” and that his colleagues who were 20 present at the interview also commented on that aspect of her demeanor. (Id. at 14–15.) He 21 also testified that Andriano did not “tear up” during the evaluation as she had been reported 22 to do frequently in previous interviews. (Id. at 26.) Based on these observations, and his 23 review of the jail record, Dr. Bayless concluded that Andriano behaved manipulatively in 24 pursuit of “secondary gain.” (Id. at 26.) He also opined that Andriano did not meet the 25 criteria for battered woman syndrome and testified that a suicide attempt Andriano had 26 carried out in jail was not serious. (Id. at 25, 27.) 27 There was nothing improper about the prosecutor’s examination of Dr. Bayless. 28 Bayless’s observations about Andriano’s flirtatiousness and other aspects of her behavior

- 20 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 21 of 143

1 and demeanor helped form his professional opinions, which were used to rebut the 2 testimony of Andriano’s penalty-phase witnesses. 3 Andriano also cites a question the prosecutor asked Donna Ochoa, Andriano’s 4 mother, about bruises she had once observed on Andriano. (Doc. 17 at 49.) Donna was 5 testifying about incidents of “inappropriate touching” where Joe had acted aggressively 6 toward Andriano. (RT 10/5/04 at 97–100.) When Donna mentioned the bruises, the 7 prosecutor responded, “But you don’t know [Joe] did that. For all you know, somebody 8 named Rick Freeland did that while they were making love.” (Id. at 98–99.) Defense 9 counsel’s objection was sustained, and Donna conceded she did not know who made the 10 bruises. (Id. at 99.) 11 Here the prosecutor “did stray beyond proper advocacy.” Sassounian v. Roe, 230 12 F.3d 1097, 1106 (9th Cir. 2000). His comment was argumentative and improper. However, 13 the court properly sustained the objection, and when viewed in the context of the 14 prosecution’s entire case, the comment did not deprive Andriano of a fair trial. Id. at 1106– 15 07. 16 Finally, Andriano cites the prosecutor’s cross-examination of her friend and 17 babysitter Gia Palicki. (Doc. 17 at 49.) The prosecutor repeatedly asked Palicki whether 18 she knew that Andriano was meeting other men and having extramarital sex. (RT 12/13/04 19 at 60–63.) Palicki had just been asked on direct examination whether she and Andriano had 20 ever discussed Andriano’s sex life with Joe and Palicki had testified that Andriano told her 21 she enjoyed kissing but Joe no longer felt comfortable doing it. (Id. at 58.) Palicki had also 22 just testified that Andriano never “bad-mouth[ed]” or spoke negatively about Joe. (Id. at 23 57.) Again, the prosecutor’s questions may have strayed over the line, but taken in context 24 they did not deprive Andriano of a fair trial. 25 Even if Andriano could show a due process violation based on the prosecutor’s 26 comments and questions about her sexual history, she would not be entitled to relief 27 because she cannot demonstrate that the misconduct had a “substantial and injurious effect 28 or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 637; see Wood, 693

- 21 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 22 of 143

1 F.3d at 1113. The weight of the evidence of Andriano’s guilt was overwhelming. See 2 Darden, 477 U.S. at 182 (rejecting prosecutorial misconduct claim where the “weight of 3 the evidence against petitioner was heavy”); see also Leavitt, 383 F.3d at 834–35 (finding 4 alleged prosecutorial misconduct harmless because of the “strength of the evidence”); 5 Cristini, 526 F.3d at 900 (faulting the prosecutor’s opening and closing argument for 6 violating the trial judge’s ruling about other-acts evidence but concluding that the state 7 court “reasonably found that this character argument was harmless in view of the 8 admissible evidence that established the Defendant’s guilt”); United States v. Green, 435 9 F.3d 1265, 1269 (10th Cir. 2006) (“The amount of evidence presented against Defendant 10 satisfies us the alleged misconduct had a minuscule effect, if any, on the jury’s verdict.”); 11 United States v. Washington, 417 F.3d 780, 787 (7th Cir. 2005) (“[L]ike most prosecutorial 12 misconduct claims, Washington’s claim founders in the face of the strong evidence of his 13 guilt.”); Cotton v. Cockrell, 343 F.3d 746, 752 (5th Cir. 2003) (“Given the overwhelming 14 evidence of guilt and the court’s cautionary instruction to the jury, we conclude that the 15 prosecution’s statement had no substantial and injurious effect or influence in the 16 determination of Cotton’s guilt.”); Drayden v. White, 232 F.3d 704, 713 (9th Cir. 2000) 17 (holding that misconduct was non-prejudicial because “the evidence of Petitioner’s guilt 18 of first-degree murder was very strong”). 19 The evidence showed that Andriano purchased poison using a fictitious name and a 20 falsified business license, surreptitiously administered the poison to Joe, and when he did 21 not die from the poison, bludgeoned and stabbed him to death. See Andriano, 215 Ariz. at 22 500–01, 161 P.3d at 543–44. Andriano arranged the crime scene to make it appear as 23 though a struggle had taken place, and she admitted to her stepfather that she had stabbed 24 Joe. Id. at 501, 161 P.3d at 544. After being taken into custody, Andriano called a colleague 25 and asked her to hide certain items that were in Andriano’s business office. Id. 26 In addition, as the Arizona Supreme Court found, the evidence refuted her claim of 27 self-defense: 28

- 22 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 23 of 143

1 The evidence established that Andriano did not kill Joe while defending 2 against a domestic violence attack. Instead, she poisoned her terminally ill husband, struck him in the back of the head twenty-three times, and slit his 3 throat. Joe posed no threat to Andriano at the time of the attack because he was so weak from the poison and chemotherapy that he could not get up. 4 5 Id. at 512, 161 P.3d at 555. 6 In the face of this evidence, Andriano cannot show that the prosecutor’s conduct 7 had a “substantial and injurious effect or influence” on the jury’s verdict. Brecht, 507 U.S. 8 at 637; see Darden, 477 U.S. at 182. Accordingly, the PCR court’s denial of this claim was 9 not based on an unreasonable determination of the facts or an unreasonable application of 10 clearly established federal law, and Andriano has not met her burden of showing “there 11 was no reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98; see 12 Parker, 567 U.S. at 47–48 (noting that because the Darden standard is a general one, courts 13 have more leeway in reaching outcomes on a case-by-case basis). 14 b. Ineffective assistance of trial counsel 15 Andriano alleges that counsel performed ineffectively by failing to object to these 16 instances of alleged prosecutorial misconduct. (Doc. 17 at 54–56.) The PCR court’s denial 17 of this claim was neither an unreasonable application of Strickland nor was it based on an 18 unreasonable determination of the facts.13 19 First, because the Arizona Supreme Court found the evidence admissible and the 20 prosecutor’s comments nonprejudicial, counsel did not perform ineffectively by failing to 21 object. See Green v. Johnson, 160 F.3d 1029, 1037 (5th Cir. 1998) (“[F]ailure to make a 22 frivolous objection does not cause counsel’s performance to fall below an objective level 23 of reasonableness.”). “An ineffective assistance claim based on a failure to object is tied to 24 the admissibility of the underlying evidence. If evidence admitted without objection was 25 admissible, then the complained of action fails both prongs of the Strickland test.” Hough 26 13 To support these allegations of ineffective assistance of counsel, Andriano cites 27 Taylor v. Maddox, 366 F.3d at 1001, and 28 U.S.C. § 2254(d)(2), but she does not specify which facts the PCR court unreasonably determined. This is insufficient to overcome the 28 presumption that the court’s factual determinations were correct. See 28 U.S.C. § 2254(E)(1); Miller-El I, 537 U.S. at 340.

- 23 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 24 of 143

1 v. Anderson, 272 F.3d 878, 898 (7th Cir. 2001); see United States v. Bosch, 914 F.2d 1239, 2 1247 (9th Cir. 1990) (explaining that failure to object to admissible evidence is neither 3 unreasonable nor prejudicial under Strickland). 4 Next, counsel did in fact take action to prevent the admission of testimony about 5 Andriano’s extramarital affairs. They filed a motion in limine to preclude the State from 6 presenting evidence that she was involved in affairs with Freeland and Black (ROA 100),14 7 but the court denied the motion (see RT 9/7/04 at 13). Counsel thereby preserved the issue 8 for appeal. See United States v. Mejia-Alarcon, 995 F.2d 982, 992 (10th Cir. 1993) (finding 9 no ineffective assistance where counsel “preserve[d] the objection” through a motion in 10 limine). Again, counsel did not perform ineffectively by failing to object to evidence the 11 trial court already found admissible. See Bosch, 914 F.2d at 1247. Nor was counsel 12 ineffective for failing to object to reasonable inferences drawn from the evidence. Trillo, 13 769 F.3d at 1002. 14 In addition, the defense placed Andriano’s past sexual behavior, including her sex 15 life with Joe, into evidence through the testimony of Dr. Murphy to support their theory 16 that Andriano was a domestic-violence victim. (See RT 10/12/04 at 62–63.) Dr. Murphy 17 testified that Andriano told her that intercourse was painful and she needed to use a 18 lubricant with her husband. (Id.) Dr. Murphy testified that sexual intercourse became 19 abusive because Joe wanted it and Andriano did not. (Id. at 105.) According to Dr. Murphy, 20 Joe’s daily demand for sex amounted to sexual abuse. (RT 10/13/04 at 6.) Dr. Murphy 21 testified that Joe brought sex toys into the relationship, against Andriano’s wishes. (Id. at 22 6–7.) Dr. Murphy also discussed Andriano’s relationship with Rick Freeland, who was 23 more emotionally supportive than Joe. (RT 10/12/04 at 116.) Andriano had sex with 24 Freeland not because she wanted to but because she thought that was what was expected 25 in a relationship. (Id. at 117.) Counsels’ decision to offer this evidence is presumed to be 26 reasonable, Strickland, 466 U.S. at 698, and having offered the evidence counsel might 27 “ROA” refers to the trial court record for Andriano’s direct appeal (Case No. CR- 14 28 05-0005-AP). “P-App.” refers to the Appendix to Andriano’s Petition for Review (CR 2000-096032).

- 24 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 25 of 143

1 reasonably have decided not to object to the prosecutor’s questions and comments. See 2 Mejia-Mesa, 153 F.3d at 931. As discussed below, many of the questions Andriano 3 describes as misconduct arose from Dr. Murphy’s testimony and Andriano’s self-reporting 4 of her sexual history. 5 Finally, as Respondents note (Doc. 22 at 47), counsel did in fact raise objections to 6 some of the prosecutor’s questions about Andriano’s sex life, albeit not on misconduct 7 grounds. (See RT 10/5/04 at 99; RT 10/13/04 at 54–56, 65.) Along with the motion in 8 limine counsel filed prior to trial, this suggests that counsel’s failure to object to other 9 questions and comments was strategic and not a manifestation of inattention or professional 10 incompetence. See Necoechea, 986 F.2d at 1281. 11 In support of her allegation that counsel performed ineffectively, Andriano cites 12 Zapata v. Vasquez, 788 F.3d 1106 (9th Cir. 2015), where the Ninth Circuit found 13 ineffective assistance based on counsel’s failure to object to comments made in the 14 prosecutor’s rebuttal closing argument. (Doc. 17 at 57.) In Zapata, the prosecutor spun a 15 “pure fiction” in which the defendant shouted vile racial epithets at the victim while 16 shooting him. Id. at 1112–13. The prosecutor’s comments were false, inflammatory, and 17 inappropriately recounted the crime from the victim’s perspective. Id. at 1114. The Ninth 18 Circuit found that counsel’s failure to object constituted ineffective assistance of counsel 19 under Strickland. 20 Zapata is distinguishable. In finding that counsel’s failure to object was prejudicial, 21 the court noted, among other factors, that the prosecutor’s comments were not a reasonable 22 inference from the record and that the “evidence of guilt was weak.” Id. at 1117–23. As 23 already noted, in Andriano’s case, the Arizona Supreme Court found that the prosecutor’s 24 statements were comments on evidence properly admitted at trial. Andriano, 215 Ariz. at 25 503–04, 161 P.3d at 546–47. More significantly, the evidence against Andriano was 26 overwhelming, defeating any showing of prejudice. See Leavitt, 383 F.3d at 834–35; 27 Drayden, 232 F.3d at 712; Weygandt v. Ducharme, 774 F.2d 1491, 1493 (9th Cir. 1985) 28 (“Although Weygandt’s attorney should have objected to the prosecutor’s improper

- 25 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 26 of 143

1 remarks, his failure to do so, evaluated in light of the overwhelming evidence of guilt 2 presented at trial, did not so prejudice Weygandt as to deprive him of a fair trial.”); Bible 3 v. Schriro, 497 F.Supp.2d 991, 1041–42 (D. Ariz. 2007), aff’d sub nom. Bible v. Ryan, 571 4 F.3d 860 (9th Cir. 2009). 5 Andriano has not rebutted the presumption that counsel’s performance fell within 6 the “‘wide range’ of permissible professional legal conduct,” Necoechea, 986 F.2d at 1281, 7 or demonstrated that she was prejudiced by counsel’s failure to object, see Dubria, 224 8 F.3d at 1003–04. Applying the doubly deferential standard required by the AEDPA and 9 Strickland, the Court finds that Andriano is not entitled to relief on this claim. See Richter, 10 562 U.S. at 105; Mirzayance, 556 U.S. at 123. 11 c. Ineffective assistance of appellate counsel 12 During the PCR proceedings, Andriano alleged that appellate counsel performed 13 ineffectively by failing to raise a claim of prosecutorial misconduct. (PCR pet., Doc. 28-1, 14 Ex. OOOOO at 70.) The PCR court rejected the claim on the merits. (ME 10/30/12 at 6.) , 15 The court found that there was no misconduct, so that even if appellate counsel had raised 16 such a claim it would have been rejected by the Arizona Supreme Court. (Id.) The PCR 17 court’s decision was not based on an unreasonable application of clearly established federal 18 law or an unreasonable determination of the facts. 19 For the reasons already discussed, primarily the strength of the evidence against 20 Andriano, the underlying prosecutorial misconduct claim lacks merit. Even if, as Andriano 21 argues (Doc. 17 at 57–58), appellate counsel’s performance was deficient in failing to brief 22 the issue, Andriano cannot establish that she was prejudiced by omission of the 23 prosecutorial misconduct claim from the appellate brief. See Wildman v. Johnson, 261 F.3d 24 832, 840 (9th Cir. 2001) (“[A]ppellate counsel’s failure to raise issues on direct appeal does 25 not constitute ineffective assistance when appeal would not have provided grounds for 26 reversal.”). There was not a reasonable probability of a different result on appeal if counsel 27 had raised a prosecutorial misconduct claim. See Moorman, 628 F.3d at 1106; 28 Kimmelman, 477 U.S. at 375.

- 26 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 27 of 143

1 Andriano is not entitled to relief on this claim. See Richter, 562 U.S. at 105; 2 Mirzayance, 556 U.S. at 123. 3 2. Misstatements of facts and vouching 4 Andriano alleges that the prosecutor misrepresented facts and engaged in vouching 5 by questioning Dr. Murphy about whether Andriano’s relationship with a man named 6 Shawn King ended because King had caught her naked with another man15; by implying 7 during his guilt-phase closing argument that he had “undisclosed evidence implicating 8 King along with Andriano”16; and by vouching for witnesses and using the phrase “we 9 know” during his opening statements and closing arguments.17 (Doc. 17 at 50–52.) 10 Andriano also contends that trial and appellate counsel were ineffective for not challenging 11 the misconduct. (Id. at 56–59.) 12 a. Prosecutorial misconduct 13 i. Questioning Dr. Murphy about Shawn King 14 As noted above, Dr. Murphy testified at the guilt phase of trial that Andriano was a 15 domestic-violence victim. (See RT 10/13/04 at 44.) Based on the information Andriano 16 provided, Dr. Murphy described Andriano’s dating history, testifying that King was the 17 only boyfriend Andriano had before meeting Joe. (RT 10/12/04 at 37, 47–48.) Dr. Murphy 18 testified that King had given Andriano a ring and, according to Andriano, when Andriano 19 ended the relationship King broke her car windows and bit the stone out of the ring while 20 it was still on her finger. (Id. at 47–48.) Andriano told Dr. Murphy she did not report the 21 incident to law enforcement. (Id.) 22 Dr. Murphy also testified that Andriano had cried the first time she had sexual 23 intercourse with Joe. (Id. at 61–62.) Dr. Murphy believed that this was Andriano’s first 24 25 26 15 See RT 10/13/04 at 51. 27 16 See RT 10/27/04 at 87–91; RT 11/17/04 at 81. 28 17 See RT 9/23/04 at 59; 11/16/04 at 54, 140; RT 11/20/04 at 23–24; RT 11/30/04 at 23; RT 12/1/04 at 18.

- 27 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 28 of 143

1 sexual experience. (Id.) She opined that Andriano did not enjoy sex but submitted to sex 2 with Joe because she was his wife and wanted to please him. (Id.) 3 On cross-examination, the prosecutor attacked Dr. Murphy’s credibility by showing 4 that Andriano’s self-reporting, on which Dr. Murphy based her opinions, was inaccurate. 5 (See RT 10/13/04 at 45–46.) He established, for example, that Andriano had in fact reported 6 King to the police for breaking her car windows. (Id. at 47–50.) He also showed that Dr. 7 Murphy was not aware that Andriano was having sex with other men while dating King. 8 (Id. at 50–51.) He then asked Dr. Murphy if she knew that King had terminated the 9 relationship with Andriano after catching her “in a state of undress with another male.” (Id. 10 at 51.) Under further examination, Dr. Murphy acknowledged that her opinion in 11 Andriano’s case depended on the truthfulness of the information she received, and if 12 Andriano’s statement were “thrown out” it would have been difficult for Dr. Murphy to 13 have reached a conclusion. (Id. at 51–53.) 14 During this line of questioning, defense counsel objected to the prosecutor’s 15 inquiries about whether Andriano had had sex with King and her level of sexual experience, 16 arguing that the prosecutor “needs to be certain he’s making a good faith representation of 17 what he believes Mr. King is going to say.” (Id. at 54–55.) At a bench conference both the 18 prosecutor and defense counsel stated that they had interviewed King, with the prosecutor 19 indicating that he had also spoken with three other men who had had sex with Andriano. 20 (Id. at 55.) The court overruled the objection, finding that the prosecutor had a good faith 21 basis for his questions. (Id. at 56.) 22 Respondents argue that Dr. Murphy opened the door to questions about the 23 credibility of her opinions when she testified about Andriano’s relationship with Shawn 24 King and, based on Andriano’s self-reporting, provided inaccurate details about how the 25 relationship ended. (Doc. 22 at 52.) Respondents contend that the prosecutor had a good 26 faith basis, based on his questioning of King, for challenging Dr. Murphy’s methodology 27 with information she omitted in forming her opinion. (Id.) 28

- 28 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 29 of 143

1 The Court agrees with Respondents that the “prosecutor’s questioning . . . did not 2 mislead the jurors or misrepresent the facts.” (Id.). The prosecutor had a good faith basis 3 for his questions about how King’s relationship with Andriano ended.18 Nothing in his 4 questions suggested an attempt to mislead the jury. See United States v. Etsitty, 130 F.3d 5 420, 424 (9th Cir. 1997) (holding that there was no prosecutorial misconduct where 6 “[n]othing in the questioning or the answers given can be construed to reflect an intention 7 by the prosecutor to mislead the jury”), amended by 140 F.3d 1274 (9th Cir. 1998). Nor 8 did the prosecutor seek to introduce evidence that had been ruled inadmissible. See United 9 States v. Cabrera, 201 F.3d 1243, 1247 (9th Cir. 2000) (“[T]he prosecutor did not engage 10 in misconduct. He did not seek to introduce evidence that had been ruled inadmissible.”). 11 Even if the prosecutor’s questions constituted misconduct, the error was harmless 12 under Brecht, 507 U.S. at 637. Evidence of other acts of infidelity was properly admitted, 13 lessening the impact of the prosecutor’s question about King catching Andriano with 14 another man. In any event, as already discussed, the evidence overwhelmingly established 15 Andriano’s guilt. See Darden, 477 U.S. at 182; Leavitt, 383 F.3d at 834–35. 16 The PCR court’s denial of this claim was not contrary to or an unreasonable 17 application of clearly established federal law, nor was it based on an unreasonable 18 determination of the facts. Andriano has not met her burden of showing “there was no 19 reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98; see Parker, 567 20 U.S. at 47–48. 21 ii. Closing argument comments about Shawn King 22 Andriano alleges that the prosecutor improperly referred to King as an “accomplice” 23 in Joe’s death, thereby implying that the State had “undisclosed evidence implicating King 24 along with Andriano.” (Doc. 17 at 51.) 25 During the guilt phase of trial, Andriano testified that Joe told her he wanted to 26 commit suicide and as part of that plan she and Joe began researching poisons. (RT 27 18 King did not testify at trial. During the PCR proceedings, King confirmed in a 28 deposition that he had, in fact, caught Andriano with another man. She was wearing a nightie; the man was putting on his underwear. (PCR pet., Ex. 15 at 19; P-App. at 2559.)

- 29 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 30 of 143

1 10/27/04 at 84–86.) When Joe asked her to research cyanide on the internet, she enlisted 2 King’s assistance because he was more familiar with computers. (Id. at 84–87.) Andriano 3 testified that Joe felt comfortable dealing with King because King had once contemplated 4 suicide after being severely injured in an accident. (Id. at 87–89.) According to Andriano, 5 King identified sodium azide as an alternative to cyanide, which could not be purchased 6 legally. (Id. at 89–91.) He also found the company from which Andriano ordered the 7 poison. (Id. at 92.) 8 In his closing argument, defense counsel contended that Andriano’s conduct, 9 including seeking the aid of a third party, King, was inconsistent with her having a secret 10 scheme to murder Joe and supported the theory that she was working with Joe on an 11 assisted-suicide plan. (RT 11/17/04 at 51.) In his rebuttal argument, the prosecutor 12 responded to defense counsel’s focus on Shawn King’s role in procuring the poison. (Id. at 13 81–82.) He told the jurors they were not there to determine King’s guilt, but stated that if 14 King “were to be judged, he would be judged as an accomplice.” (Id. at 81.) 15 A prosecutor may not suggest that information not presented to the jury supports his 16 case. See Necoechea, 986 F.2d at 1281. The prosecutor’s comment here did not suggest 17 that he had undisclosed evidence implicating King beyond what Andriano herself testified 18 to at trial, nor would it lead a jury to reasonably believe the prosecutor knew of undisclosed 19 evidence of Andriano’s guilt. The comment was a response to the defense argument that 20 King’s involvement in procuring the poison supported the assisted-suicide theory. 21 Even if the prosecutor’s comment constituted misconduct, the error was harmless. 22 Brecht, 507 U.S. at 637. The trial court instructed the jury that counsel’s arguments were 23 not evidence. See Andriano, 215 Ariz. at 503, 161 P.3d at 546. Again, the evidence of 24 Andriano’s guilt was overwhelming. See Darden, 477 U.S. at 182; Leavitt, 383 F.3d at 25 834–35. Notwithstanding King’s role in assisting Andriano in procuring the sodium azide, 26 the evidence showed it was Andriano who contacted the supplier using a false name, 27 purchased the poison using a fraudulent business license, and administered it to Joe. (RT 28 9/8/04 at 64–68; RT 9/21/04 at 29–115; 9/22/04 at 73–146.) The evidence also established

- 30 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 31 of 143

1 that Andriano did not act in self-defense when she killed Joe. See Andriano, 215 Ariz. at 2 500–01, 161 P.3d at 543–44. 3 The PCR court’s denial of this claim was not contrary to or an unreasonable 4 application of clearly established federal law, nor was it based on an unreasonable 5 determination of the facts. Andriano has not met her burden of showing “there was no 6 reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98; see Parker, 567 7 U.S. at 47–48. 8 iii. Vouching for witnesses and use of “we know” 9 Andriano contends that the prosecutor “vouched for his own witnesses and 10 statements repeatedly throughout the trial” and used the phrase “we know” in his opening 11 statements and closing arguments to bolster “unproven and disputed factual assertions.” 12 (Doc. 17 at 51.) Respondents argue that the prosecutor used the phrase “we know” to 13 describe the evidence presented at trial and reasonable inferences therefrom, not to refer to 14 evidence not presented at trial. (Doc. 22 at 59.) 15 A prosecutor improperly expresses his belief in the credibility of a witness if the 16 prosecutor’s statements place the prestige of the government behind a witness through 17 personal assurances of the witness’s veracity or by suggesting that information not 18 presented to the jury supports the witness’s testimony. United States v. Jackson, 84 F.3d 19 1154, 1158 (9th Cir. 1996). Here, the challenged statements do not constitute improper 20 “vouching” for the credibility of the State’s witnesses. Instead, the statements made 21 reference to evidence admitted at trial and reasonable inferences from that evidence. The 22 statements do not contain personal assurances of any witness’s testimony, nor do they 23 imply that there is some information or evidence that was not presented to the jury that 24 supports their testimony. See United States v. Leon-Reyes, 177 F.3d 816, 822 (9th Cir. 25 1999). Accordingly, the prosecutor’s repeated use of the term “we know” does not 26 constitute misconduct. See United States v. Young, 398 F.3d 1179, 1190 (9th Cir. 2005) 27 (“It is not misconduct for the prosecutor to argue reasonable inferences based on the 28 record.”) (quotation omitted).

- 31 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 32 of 143

1 Andriano’s principal argument concerns the prosecutor’s comments about the 2 amount of sodium azide Joe ingested. (Id. at 52.) In his closing argument at the guilt phase 3 of trial, the prosecutor stated that, “If there’s a small amount of sodium azide in your veins 4 that indicates in this case that there was a large amount that was consumed a long time 5 ago.” (RT 11/16/04 at 54.) In his opening statement at the aggravation stage of trial, the 6 prosecutor discussed the evidence of sodium azide poisoning, stating that “we know the 7 amount of poison that is unaccounted for is approximately 21 grams. . . . So we know she 8 gave him at least ten times the amount that was necessary to kill him.” (RT 11/30/04 at 23.) 9 Andriano contends that these statements are “the exact opposite information” from what 10 was testified to by the State’s expert and that there was no evidence of how much poison 11 Joe ingested. (Doc. 17 at 52.) Andriano’s argument is not persuasive. 12 The State’s expert, Edward French, a toxicologist, testified that small amounts of 13 sodium azide were found in Joe’s gastric contents (3.8 milligrams per liter) and blood (two 14 parts per million). (RT 9/23/04 at 21–22, 35.) French testified that these results indicated 15 that either a large amount of sodium azide was consumed “quite a bit a ways back in time” 16 or a very small amount was consumed more recently. (Id. at 26.) Another expert witness 17 for the State, Joseph Richmond, a chemist, testified that, “It’s possible there was a large 18 amount [of sodium azide] a long time before [Joe’s] death or a small amount immediately 19 before his death.” (RT 9/27/04 at 40.) French also testified that a lethal dose of sodium 20 azide for someone of Joe’s size would be approximately two grams.19 (RT 9/23/04 at 55.) 21 On cross-examination, French testified that he could not draw any conclusions 22 based on tissue samples—which might not have been tested—except that “we have no idea 23 how much was ingested.” (Id. at 59.) It is this statement Andriano relies on for her argument 24 that there was no evidence of how much sodium azide Joe ingested. That reliance, however, 25 ignores the rest of French’s testimony and the fact that 20.8 grams of the sodium azide 26 Andriano purchased could not be accounted for. (See RT 9/22/04 at 142, 145.) 27 19 French testified that a lethal dose of sodium azide is 27 milligrams per kilogram. 28 (RT 9/23/04 at 55.) A lethal dose for a 150 pound man therefore would be 27 milligrams multiplied by 70 kilograms, or 1890 milligrams (1.89 grams). (Id.)

- 32 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 33 of 143

1 The prosecutor’s statement that Joe ingested 21 grams of sodium azide is a 2 reasonable inference from the missing 20.8 grams. His statement that the amount of sodium 3 azide found in Joe’s blood indicated consumption of a large amount of the poison a long 4 time ago (RT 11/16/04 at 54) is a reasonable inference from the missing sodium azide and 5 the testimony of French and Richmond (see RT 9/23/04 at 26; RT 9/27/04 at 40). His 6 statement that Andriano administered ten times the lethal dose of sodium azide is a 7 reasonable inference from by French’s testimony that a lethal dose would be approximately 8 two grams. (RT 9/23/04 at 55.) 9 There was no improper vouching. The prosecutor’s “we know” statements referred 10 to evidence admitted at trial and reasonable inferences from that evidence. Young, 398 F.3d 11 at 1190. 12 Even if the prosecutor’s comments were improper, the error was harmless. Brecht, 13 507 U.S. at 637. The trial court instructed the jury that counsel’s arguments were not 14 evidence, see Andriano, 215 Ariz. at 503, 161 P.3d at 546, and the evidence of Andriano’s 15 guilt was overwhelming, see Darden, 477 U.S. at 182; Leavitt, 383 F.3d at 834–35. 16 The PCR court’s denial of this claim was not contrary to or an unreasonable 17 application of clearly established federal law, nor was it based on an unreasonable 18 determination of the facts. Andriano has not met her burden of showing “there was no 19 reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98; see Parker, 567 20 U.S. at 47–48. 21 b. Ineffective assistance of trial and appellate counsel 22 Andriano alleges that trial counsel performed ineffectively by failing to object to 23 the prosecutor’s alleged misstatements of facts and improper vouching, and that appellate 24 counsel performed ineffectively by failing to raise this claim on appeal. (Doc. 17 at 56– 25 59.) The PCR court denied these claims on the merits. (ME 10/30/12 at 3, 6.) That decision 26 was neither contrary to nor an unreasonable application of clearly established federal law, 27 nor was it based on an unreasonable determination of the facts. 28

- 33 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 34 of 143

1 Andriano cannot show that she was prejudiced by trial or appellate counsel’s 2 performance. First, the underlying allegations of prosecutorial misconduct are without 3 merit, so challenges by trial or appellate counsel would have been fruitless. See Green, 160 4 F.3d at 1035; Wildman, 261 F.3d at 840. In addition, the evidence against Andriano was 5 overwhelming, defeating any allegation of prejudice due to counsel’s alleged errors. See, 6 e.g., Leavitt, 383 F.3d at 834–35. There was not a reasonable probability of a different 7 outcome at trial or on appeal if counsel had raised challenges to the prosecutor’s conduct. 8 Applying the doubly deferential standard required by the AEDPA and Strickland, 9 the Court finds that Andriano is not entitled to relief on this claim. See Richter, 562 U.S. 10 at 105; Mirzayance, 556 U.S. at 123. 11 3. Unfounded attacks on witness 12 Andriano alleges that the prosecutor “repeatedly attacked defense expert Sharon 13 Murphy through unproven and unfounded arguments regarding her supposed lack of 14 credibility and made wild allegations regarding her lack of ethics.” (Doc. 17 at 52–53.) 15 Andriano cites the follow comments: the prosecutor argued that Murphy was “in 16 [Andriano’s] pocket”20; was a “liar” who could not “keep her story straight” 21; made 17 “misrepresentations . . . to everyone”22; and ignored her “ethical[] . . . duty to consider both 18 sides.”23 (Id.) 19 a. Prosecutorial misconduct 20 During his guilt-phase closing argument, the prosecutor characterized Andriano as 21 a Don Quixote-like figure living in an elaborate fantasy world where she was the victim of 22 domestic violence. (RT 11/16/04 at 150–57.) He stated that the defense “want[s] you to 23 have faith in the defendant’s word.” (Id. at 152.) He continued: 24 25 20 See RT 12/16/04 at 6. 26 21 See RT 12/1/04 at 61. 27 22 See RT 11/16/04 at 153. 28 23 See RT 12/16/04 at 7.

- 34 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 35 of 143

1 So that’s what they want you to have. And these misrepresentations from 2 Sharon Murphy to everybody but that’s okay, you should believe her. Each and every one of you should have faith and believe her. Right? That’s what 3 they want you to believe. 4 (Id.) When read in context, it is clear that the prosecutor is accusing Andriano, not Dr. 5 Murphy, of making misrepresentations. This is consistent with the prosecutor’s argument 6 that Andriano made misrepresentations to Dr. Murphy, and those misrepresentations 7 formed the basis of her opinion that Andriano was a victim of domestic violence. 8 In his rebuttal closing argument during the aggravation phase of trial, the prosecutor 9 addressed comments made by defense counsel asking the jury “not to rely upon conjecture 10 or scenarios conjured up for you by the gentleman [the prosecutor] not based in fact.” (RT 11 12/1/04 at 43.) The prosecutor responded: 12 If there’s anybody that is conjuring anything up, if there’s anybody here that 13 can be labeled a conjurer or liar, it isn’t the prosecutor. It certainly isn’t. He’s 14 not the one that’s the liar here. It maybe someone else in this courtroom, the one who can’t keep her story straight, Sharon Murphy. The one who can’t, 15 when questioned about things and say, yeah, I lied over and over again. 16 Perhaps it’s somebody who submits false documents in connection with their student loan. Perhaps it’s somebody who submits false documents to obtain 17 poison. 18 (Id. at 61.) Again, although the prosecutor names Sharon Murphy, taken in context it 19 appears he is referring to Andriano, whose often inaccurate self-report formed the basis of 20 Dr. Murphy’s opinion and who obtained the sodium azide using false information. The 21 prosecutor’s comment was also “invited by” or “responsive to” defense counsel’s 22 argument. Darden, 477 U.S. at 182 (“[T]he idea of ‘invited response’ is used not to excuse 23 improper comments, but to determine their effect on the trial as a whole.”) (citing Young, 24 470 U.S. at 13). 25 The final comment cited by Andriano occurred during the prosecutor’s penalty- 26 phase closing argument. (RT 12/16/04 at 6–7.) There he explicitly referenced Dr. Murphy: 27 Obviously, the two of them have bonded. And/or you can look at it another 28 way, you can say that Sharon Murphy is in her corner. Another way to look at it is to say that she is in the defendant’s pocket. And, basically, that’s what

- 35 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 36 of 143

1 you have here. A defendant who has manipulated the individual who has 2 come out to speak with her. And I can stand up here and can say that to you because we know that Sharon Murphy, when confronted with all of the lies— 3 they’re not inconsistencies, they’re not omissions, they’re lies—with all of the lies presented by the defendant, she said, “I wouldn’t change my opinion 4 at all.” Sharon Murphy doesn’t care about the truth because she is convinced 5 now that the defendant is a victim of domestic violence. 6 (Id.) The prosecutor then argued that, “Ethically, [Dr. Murphy] has a duty to consider both 7 sides.” (Id. at 7.) 8 The prosecutor’s attacks on Dr. Murphy all stem from the fact that she based her 9 report on information provided by Andriano, and that the information Andriano supplied 10 was often inaccurate. “It is not misconduct for the prosecutor to argue reasonable 11 inferences based on the record.” Young, 398 F.3d at 1190. A prosecutor is permitted to go 12 so far as to “label a witness’s testimony as lies or fabrication.” Turner v. Marshall, 63 F.3d 13 807, 818 (9th Cir. 1995), overruled on other grounds by Tolbert v. Page, 182 F.3d 677, 14 685 (9th Cir. 1999). 15 In Spector v. Diaz, 115 F. Supp. 3d 1121 (C.D. Cal. 2015), the district court denied 16 a claim of misconduct based on the prosecutor’s comments about a defense expert. 24 The 17 court explained: 18 Although petitioner believes that the jury understood the prosecutor’s 19 comments as accusations that defense counsel or petitioner purchased false 20 24 In her closing argument, the prosecutor stated: 21 Ultimately, what the defense science told you was that they are willing to 22 say, when everything adds up to homicide, everything adds up, everything 23 points to homicide, [the defense experts] are willing, for a price, folks, and wait till you get this price, they are willing to come in and say suicide. Can 24 you believe Werner Spitz, when asked last year how much he made . . . The 25 fact of the matter is, he is a professional witness. He knows I’m going to find out how much money [he] made . . . he knows I’m not stupid. I’m going to 26 ask the question, and I’m going to find out one way or the other. Yet, when 27 he is asked the simplest questions, he tries to hide the truth. Spector, 115 F.Supp.3d at 1148. 28

- 36 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 37 of 143

1 testimony, the challenged comments reasonably could have been understood 2 as strongly-worded arguments that the defense experts were biased and that they were willing to lie for petitioner in order to secure their hourly fees. 3 Such comments do not result in a due process violation. . . . The prosecutor’s suggestions that the defense experts were lying, moreover, were arguably 4 supported by the evidence at trial. . . . 5 Id. at 1149 (internal citation omitted). 6 The court cited Duckett v. Mullin, 306 F.3d 982, 989 (10th Cir. 2002). There the 7 prosecutor’s closing arguments criticized the qualifications and impartiality of the defense 8 mental health expert. Id. The Tenth Circuit found that the state court’s denial of relief was 9 reasonable “particularly given the disputed nature of the expert’s testimony at trial.” Id. 10 The prosecutor’s conduct in Andriano’s case falls within the range of conduct found 11 permissible in Turner, Spector, and Duckett. 12 Andriano cites a series of Arizona cases which she claims support a finding of 13 prosecutorial misconduct based on the prosecutor’s comments about Dr. Murphy. (Doc. 17 14 at 53.) She argues that “[n]early identical facts were at issue” in In re Zawada, 208 Ariz. 15 232, 92 P.3d 862 (2004). In that case the Arizona Supreme Court held that the prosecutor 16 had committed misconduct by implying, without evidence, that a defense mental health 17 expert fabricated a diagnosis to coincide with the defendant’s theory of the case; suggesting 18 that defense counsel had paid money to the expert to fabricate a diagnosis of insanity for 19 the defendant; and arguing that mental health experts in general create excuses for 20 criminals. Id. at 234–35, 92 P.3d at 864–65. 21 None of these circumstances is present in Andriano’s case. The prosecutor’s 22 criticism of Dr. Murphy was supported by evidence that her opinion relied on Andriano’s 23 unreliable self-reporting. The prosecutor did not imply that Dr. Murphy’s opinion was paid 24 for; instead—again based on evidence that Dr. Murphy unquestioningly accepted 25 Andriano’s version of events—he argued that she and Andriano had formed a bond and 26 that Andriano was able to manipulate Dr. Murphy into providing a report consistent with 27 the defense theory of domestic abuse. (RT 12/16/04 at 6–7.) Finally, the prosecutor did not 28 accuse the mental health profession as a whole of making excuses for criminals. Zawada

- 37 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 38 of 143

1 does not support Andriano’s argument that the prosecutor committed misconduct in his 2 comments about Dr. Murphy. 3 Even if the prosecutor’s comments were improper, the error was harmless. Brecht, 4 507 U.S. at 637. The trial court instructed the jury that counsel’s arguments were not 5 evidence, see Andriano, 215 Ariz. at 503, 161 P.3d at 546, and the evidence of Andriano’s 6 guilt was overwhelming, see Darden, 477 U.S. at 182; Leavitt, 383 F.3d at 834–35. 7 The PCR court’s denial of this claim was not contrary to or an unreasonable 8 application of clearly established federal law, nor was it based on an unreasonable 9 determination of the facts. Andriano has not met her burden of showing “there was no 10 reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98; see Parker, 567 11 U.S. at 47–48. 12 b. Ineffective assistance of trial and appellate counsel 13 Andriano alleges that trial counsel performed ineffectively by failing to object to 14 the prosecutor’s comments about Dr. Murphy and appellate counsel performed 15 ineffectively by failing to raise this claim on appeal. (Doc. 17 at 56–59.) The PCR court 16 denied these claims on the merits. (ME 10/30/12 at 3, 6.) That decision was neither contrary 17 to nor an unreasonable application of clearly established federal law, nor was it based on 18 an unreasonable determination of the facts. 19 Andriano cannot show that she was prejudiced by trial or appellate counsel’s 20 performance. First, the underlying allegations of prosecutorial misconduct are without 21 merit, so challenges by trial or appellate counsel would have been fruitless. See Green, 160 22 F.3d at 1035; Wildman, 261 F.3d at 840. In addition, the evidence against Andriano was 23 overwhelming, so any allegation of prejudice based on counsel’s alleged errors fails. See, 24 e.g., Leavitt, 383 F.3d at 834–35. There was not a reasonable probability of a different 25 outcome at trial or on appeal if counsel had raised challenges to the prosecutor’s comments 26 about Dr. Murphy. 27 28

- 38 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 39 of 143

1 Applying the doubly deferential standard required by the AEDPA and Strickland, 2 the Court finds that Andriano is not entitled to relief on this claim. See Richter, 562 U.S. 3 at 105; Mirzayance, 556 U.S. at 123. 4 4. Cumulative prejudice 5 Andriano argues that the Court must consider the cumulative effect of the 6 prosecutorial misconduct. (Doc. 17 at 38.) She cites Berger v. United States, 295 U.S. 78 7 (1935), in support of this argument. 8 In Berger, the Supreme Court reversed a conviction where the prosecutor had made 9 “improper suggestions, insinuations, and . . . assertions of personal knowledge” about 10 evidence not before the jury. Id. at 88. The Court found that the prosecutor: 11 was guilty of misstating the facts in his cross-examination of witnesses; of putting into the mouths of such witnesses things which they had not said; of 12 suggesting by his questions that statements had been made to him personally 13 out of court, in respect of which no proof was offered; of pretending to understand that a witness had said something which he had not said and 14 persistently cross-examining the witness upon that basis; of assuming 15 prejudicial facts not in evidence; of bullying and arguing with witnesses; and, in general, of conducting himself in a thoroughly indecorous and improper 16 manner. 17 18 Id. at 84. The Court found that the prosecutor’s “pronounced and persistent” misconduct 19 had “a probable cumulative effect upon the jury,” and concluded that Berger was entitled 20 to a new trial. Id. at 89. 21 Berger is distinguishable on two grounds. First, as the Court has described, the 22 prosecutor in Andriano’s case did not engage in the level of misconduct of the prosecutor 23 in Berger. Second, in Berger the evidence supporting the defendant’s conviction was 24 “weak.” 295 U.S. at 89 (“If the case against Berger had been strong, or, as some courts 25 have said, the evidence of his guilt ‘overwhelming,’ a different conclusion might be 26 reached.”). 27 In Andriano’s case, the evidence of guilt was overwhelming and the cumulative 28 effect of the alleged misconduct did not deprive her of a fair trial. See United States v. Ross,

- 39 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 40 of 143

1 149 F. App’x. 670, 674 (9th Cir. 2005) (finding no cumulative prejudice “in light of the 2 overwhelming evidence” of guilt); Graves v. Ault, 614 F.3d 501, 507–08 (8th Cir. 2010) 3 (finding defendant was not denied a fair trial where jury was instructed that closing 4 arguments are not evidence and cumulative effect of misconduct was outweighed by the 5 “strength of properly admitted evidence” of guilt); Duckett, 306 F.3d at 992–93 (applying 6 cumulative error analysis to prosecutorial misconduct claims and finding petitioner not 7 entitled to relief given the “strong” evidence of his guilt). 8 In United States v. Auch, 187 F.3d 125, 133 (1st Cir. 1999), the court recognized 9 that the “prosecutor’s various transgressions and missteps” were “both disturbing and 10 exasperating” but concluded there was no reversible error even when the misconduct was 11 considered cumulatively because the defendant’s guilt was “plain in the record.” The court 12 also observed that it was “heed[ing] the Supreme Court’s admonition against letting the 13 guilty go free to punish prosecutorial misconduct.” Id. (citing United States v. Hasting, 461 14 U.S. 499, 506–507 (1983)). 15 The cumulative effect of the prosecutor’s alleged misconduct was not so severe as 16 to deny Andriano a fair trial. See Darden, 477 U.S. at 181–82. 17 5. Conclusion 18 The PCR court denied Andriano’s claims of prosecutorial misconduct and 19 ineffective assistance of trial and appellate counsel. (ME 10/30/12 at 3, 6.) Andriano bears 20 the burden of showing that “there was no reasonable basis for the state court to deny relief.” 21 Richter, 562 U.S. at 98; see Parker, 567 U.S. at 47–48. With respect to her claims of 22 ineffective assistance of counsel, she also bears the burden under Strickland of showing 23 both deficient performance and prejudice. Richter, 562 U.S. at 105; see Mirzayance, 556 24 U.S. at 123. For the reasons discussed above, Andriano fails to satisfy those burdens. 25 Accordingly, Claim 1 is denied.25 26 25 By reaching this conclusion the Court does not condone Martinez’s conduct in 27 Andriano’s trial or in other cases. A number of his comments and questions are worthy of 28 condemnation, but that is not enough to entitle Andriano to habeas relief. In Darden, the prosecutor suggested that the death penalty would be the only guarantee that the defendant

- 40 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 41 of 143

1 CLAIM 2 2 Andriano alleges that attorney David DeLozier, who was responsible for her 3 penalty-phase defense, performed ineffectively due to an actual conflict of interest arising 4 from the fact that he simultaneously represented her in her criminal proceeding and her 5 parents in guardianship and adoption cases involving her children. (Doc. 17 at 59–68.) 6 Andriano argues that “DeLozier clearly had an actual conflict—on one hand to represent 7 Andriano’s interests in the criminal case against her, which included telling the jury about 8 her family history of mental illness and abuse, and on the other to represent the Ochoas in 9 their custody battle, which required portraying them as suitable caregivers for two young 10 children.” (Id. at 61.) According to Andriano, this conflict resulted in DeLozier 11 overlooking key mitigating evidence, including allegations that Andriano was raised in a 12 religious cult and was sexually abused by her stepfather, Alejo Ochoa.26 13 A. Background 14 Andriano was represented at trial by lead counsel Daniel Patterson, of the Maricopa 15 County Public Defender’s Office, and DeLozier, who was originally retained by 16 Andriano’s family.27 17 After Joe’s murder, his sister and her husband were appointed guardians of 18 Andriano’s two children. (RT 2/4/14 at 166; P-App. 967.) Donna and Alejo Ochoa hired 19 DeLozier to represent them in the guardianship matter. (Id. at 167; P-App. 968.) DeLozier 20 21 would not commit another heinous crime in the future, that the defendant was an “animal” and should not be let out of prison without a leash, and that the prosecutor wished the 22 defendant’s face had been “blown off” by a shotgun. See Darden, 477 U.S. at 179–80, nn. 23 9–12. Although these statements clearly constituted misconduct, they did not, according to the Supreme Court, so “infect” the trial with unfairness as to violate due process. Id. at 181. 24 26 In Claim 3, Andriano indicates that she is no longer citing as omitted mitigation 25 evidence the allegations of sexual abuse by Alejo Ochoa. (Id. at 36–37). Those allegations, 26 however, were included in her PCR petition, on which she bases her arguments that counsel performed ineffectively at sentencing. (See PCR petition, Doc. 28-1, Ex. OOOOO at 46– 27 55). 28 27 After Patterson’s appointment, DeLozier served as second chair pursuant to Knapp v. Hardy, 111 Ariz. 107, 523 P.2d 1308 (1974).

- 41 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 42 of 143

1 also initiated an adoption proceeding on the Ochoas’ behalf. (Id. at 170; P-App. 971.) 2 DeLozier represented the Ochoas in those matters from July 12, 2001, to July 31, 2002. In 3 this role he solicited letters from acquaintances of the Ochoas attesting that they were good 4 parents and grandparents. (Id. at 168–69; P-App. 969–70.) The argument he made on the 5 Ochoas’ behalf was that “they were honorable people and that they were [sic] would raise 6 or help assist in raising these children appropriately.” (RT 2/10/14 at 75; P-App. 1539.) 7 At the PCR evidentiary hearing, Donna Ochoa testified that the defense team never 8 asked her about childhood abuse or mental health issues involving Andriano. (RT 2/4/14 9 at 190–91; P-App. 991–92.) DeLozier testified that he did not have Andriano evaluated as 10 a potential victim of sexual assault, although information in the record was consistent with 11 what DeLozier understood to be symptoms of sexual abuse. (RT 2/10/14 at 111, 116; P- 12 App. 1574, 1580.) He never investigated whether Andriano was molested by her 13 grandfather, biological father, or stepfather, despite hints of such abuse in the records, 14 including in the reports of Kandy Rhode, a counselor hired by the Ochoas, Dr. Jack Potts, 15 who performed a Rule 11 competency examination of Andriano, Dr. Richard Rosengard, 16 a psychiatrist retained by the defense, and Dr. Murphy. (See id. at 114–135; P-App. 1578– 17 1599.) DeLozier likewise never investigated the source of Andriano’s reported sleep issues, 18 dissociation, memory issues, and childhood trauma. (Id. at 129–30; P-App. 1593–94.) 19 DeLozier testified that he did not “investigate any potentially negative material 20 regarding [Andriano’s] upbringing.” (Id. at 135; P-App. 1599.) He stated that he was “on 21 the path to develop that part of her case” but couldn’t force lead counsel Patterson to act. 22 (Id. at 137; P-App. 1601.) 23 DeLozier testified that during the guardianship proceedings, Joe’s parents raised 24 allegations of abuse during visitations with the Ochoas. DeLozier dismissed the 25 accusations as typical of those raised in custody disputes. (Id. at 74–76; P-App. 1537–39.) 26 DeLozier agreed it was “possible” that representation of the Ochoas “may have 27 affected [his] noninvestigation of these issues.” (Id. at 138; P-App. 1602.) At the time, 28 however, he felt the parties’ interests aligned. (Id. at 148; P-App. 1612.) He explained:

- 42 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 43 of 143

1 But based on what I knew about her upbringing with the church she went to, 2 the kinds of things mommy and daddy were trying to provide, . . . I didn’t see a real conflict at that time between the two. The kinds of things I felt and 3 believed about her childhood were similar to what was being told about the grandparents and their behavior. 4 5 (Id.) He testified that Andriano and the Ochoas “had the same desires and they weren’t 6 using one against the other” and that Andriano wanted DeLozier to represent the Ochoas 7 in the guardianship and adoption proceedings. (Id. at 148–49; P-App. 1612–13.) 8 B. Analysis 9 The PCR court rejected this claim. The court, citing Cuyler v. Sullivan, 446 U.S. 10 335 (1980), found that DeLozier’s dual representation of Andriano and her parents 11 “presented the potential for a conflict of interest, to the extent that their interests 12 diverged.” (ME 11/1/14 at 19) (emphases in original). The court found, however, that the 13 interests of Andriano and her parents did not diverge, explaining that, “rather than being in 14 conflict, the interests of DeLozier’s clients, the parents in the guardianship proceedings 15 and the daughter in the criminal action, were aligned at the time of trial” because “[s]he 16 wanted her parents to have guardianship.” (Id.) The court continued: 17 Now, ten years later the defendant’s parents have been deprived of having a 18 relationship with children [sic] and the defendant is facing a death sentence. Their interests have again aligned, this time in favor of portraying negative 19 aspects of her growing-up years. 20 The Court finds that the interests of the defendant and her parents’ interests 21 were aligned, rather than conflicting, at the time of trial. Their interests dovetailed, rather than diverged, and no conflict existed. 22 23 The Court agrees that, were the “horrific childhood” and other background information true, and not investigated because of the impact on the parents 24 [sic] case, there may have been an actual conflict. However, DeLozier was 25 familiar with sexual abuse victimology; he attributed statements assailing his clients’ (the defendant’s parents’) character to the normal aspersions cast in 26 domestic situations. Further, the defendant denied the existence of abuse. 27 The Court concludes that . . . the “bad facts” background information may 28 not be true (or may be merely speculative . . . ) and/or may have been hidden

- 43 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 44 of 143

1 from investigation (the defendant and family may have been involved in 2 failing to disclose or even active concealment for their own reasons) and that the possibility and speculation do not support the Court finding that an 3 “actual conflict” existed at the time of trial. 4 (Id. at 19–20.) 5 The PCR court’s decision was neither contrary to nor an unreasonable application 6 of clearly established federal law, nor was it based on an unreasonable determination of the 7 facts. 8 The right to counsel guaranteed by the Sixth Amendment includes the “right to 9 representation that is free from conflicts of interest.” Wood v. Georgia, 450 U.S. 261, 271 10 (1981). An ineffective assistance of counsel claim based on a conflict of interest requires a 11 petitioner to show “that an actual conflict of interest adversely affected his lawyer’s 12 performance.” Sullivan, 446 U.S. at 350. “[U]ntil a defendant shows that his counsel 13 actively represented conflicting interests, he has not established the constitutional predicate 14 for his claim of ineffective assistance.” Id. In the conflict of interest context, prejudice is 15 presumed if a petitioner shows that his lawyer labored under an actual conflict of interest. 16 United States v. Rodrigues, 347 F.3d 818, 823 (9th Cir. 2003) (citing Sullivan, 446 U.S. at 17 347). An “actual conflict of interest” means “a conflict that affected counsel’s 18 performance—as opposed to a mere theoretical division of loyalties.” Mickens v. Taylor, 19 535 U.S. 162, 171 (2002) (emphasis in original). 20 Andriano contends that there was an “actual conflict,” and thus a presumption of 21 prejudice, based on DeLozier’s representation of her in the criminal matter and her parents 22 in the custody dispute. The Court disagrees. In Mickens, “the Supreme Court explicitly 23 limited this presumption of prejudice for an actual conflict of interest . . . to cases involving 24 ‘concurrent representation’”—that is, simultaneous representation of two or more 25 defendants. Rowland v. Chappell, 876 F.3d 1174, 1192 (9th Cir. 2017) (citing Mickens, 26 535 U.S. at 175); see Earp v. Ornoski, 431 F.3d 1158, 1184 (9th Cir. 2005) 27 (“The Mickens Court specifically and explicitly concluded that Sullivan was limited to 28 joint representation. . . . ”). The Court explained that the presumption of prejudice is needed

- 44 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 45 of 143

1 in cases of concurrent representation because of “the high probability of prejudice arising 2 from multiple concurrent representation, and the difficulty of proving that prejudice.” 3 Mickens, 535 U.S. at 175; see Rowland, 876 F.3d at 1192. However, “[n]ot all attorney 4 conflicts present comparable difficulties,” and the Mickens Court criticized circuit courts 5 for applying “Sullivan ‘unblinkingly’ to ‘all kinds of alleged attorney ethical conflicts,’” 6 including cases involving personal or financial interests. Mickens, 535 U.S. at 174 (citation 7 omitted); see Rowland, 876 F.3d at 1192. 8 The PCR court did not unreasonably apply Sullivan. Because this is not a case 9 involving concurrent representation of defendants, Sullivan does not apply. Andriano 10 cannot show an actual conflict of interest that would lead to a presumption of prejudice. 11 Accordingly, to be entitled to relief Andriano must demonstrate prejudice under Strickland. 12 See, e.g., Rodrigues, 347 F.3d at 823; United States v. Walter-Eze, 869 F.3d 891, 900 (9th 13 Cir. 2017) (explaining that Strickland analysis applies in the absence of an actual conflict 14 under Sullivan). 15 The PCR court determined that Andriano was not prejudiced by DeLozier’s 16 performance. The court did so in its analysis of Andriano’s claim of ineffective assistance 17 of counsel at sentencing. (ME 11/1/14 at 20–31.) This Court has likewise undertaken an 18 analysis of prejudice in the context of Andriano’s claim of ineffective assistance of counsel 19 at sentencing (Claim 3), and, as explained next, has found that Andriano has not met her 20 burden under the doubly deferential standard of Strickland and § 2254. See Richter, 562 21 U.S. at 105; Mirzayance, 556 U.S. at 123. Claim 2 is therefore denied. 22 CLAIM 3 23 Andriano alleges that counsel performed ineffectively at the penalty phase of her 24 trial in violation of her Sixth, Eighth, and Fourteenth Amendment rights. (Doc. 17 at 68.) 25 In Claim 3(A), she alleges that counsel failed to adequately investigate, develop, and 26 present mitigation evidence. (Id. at 72.) The PCR court rejected this claim on the merits. 27 (ME 11/1/14.) In Claim 3(B), Andriano alleges that counsel’s failure to object to an 28 instruction that informed the jury that she could be sentenced to life with the possibility of

- 45 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 46 of 143

1 parole constituted ineffective assistance of counsel. (Id. at 84.) Andriano did not raise this 2 claim in state court. She contends that its default is excused under Martinez by the 3 ineffective assistance of PCR counsel. (Id.) 4 Claim 3(A) 5 A. Background 6 1. Sentencing 7 During the guilt phase of trial, counsel presented evidence to support their theory 8 that Andriano was a domestic violence victim who killed her abusive husband in self- 9 defense. See Andriano, 215 Ariz. at 504, 161 P.3d at 548. Counsel continued that theme at 10 sentencing, while also presenting evidence to support several other mitigating 11 circumstances. (See RT 12/8/04 28–37.) 12 During the penalty phase of sentencing, Andriano presented 11 witnesses over three 13 days. Andriano first offered testimony from three employees of the Maricopa County Jail’s 14 psychiatric unit who treated Andriano when she was admitted following a suicide attempt 15 in September 2003: Laura King, a mental health counselor; Dr. Gerald Perry, a 16 psychologist; and Joyce Van Every, the lead psychiatric nurse. King and Dr. Perry 17 described the suicide attempt as “quite significant” and “pretty serious.” (RT 12/8/04 at 68, 18 120.) Andriano had stabbed herself in the arm with a pen, cutting an artery and losing a lot 19 of blood. (Id. at 120.) Both Dr. Perry and King testified that Andriano was not diagnosed 20 at the time with a serious mental illness, such as a psychotic break, but she was treated for 21 depression and severe anxiety. (Id. at 71–72, 92, 111, 121–22, 134.) 22 The witnesses described Andriano as a model inmate in the psychiatric unit. (Id. at 23 142.) She served as an intermediary, aiding inmates and bringing their problems to the 24 attention of the staff. (Id. at 75, 81–83, 127, 142–43.) She was a positive influence and kept 25 the pod clean. (Id. at 75, 77.) 26 The witnesses further described Andriano as smart but naïve, gullible, and easily 27 manipulated by other inmates. (Id. at 72–74.) She was a people pleaser with the personality 28

- 46 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 47 of 143

1 of a caretaker who had difficulty establishing boundaries and avoided confrontation. (Id. 2 at 85, 125.) 3 King and Van Every opined that Andriano’s depression and anxiety resulted partly 4 from the charges she faced. (Id. at 111, 146.) Dr. Perry opined that the conditions resulted 5 from the stress inherent in the jail environment. (Id. at 122.) 6 Jimmy and Linda Galyon, fellow church members and friends of the Ochoas, 7 testified on Andriano’s behalf. (RT 12/9/04 at 24–25.) Andriano frequently babysat for 8 them. She took good care of the children. She was gentle, never violent, and hesitated even 9 to discipline the kids. (Id. at 26). According to the Galyons, Andriano was “very calm, 10 timid, very quiet,” and “humble”; she never displayed anger. (Id. at 27, 43.) She was “very 11 pleasant . . . just a really good girl.” (Id. at 39.) Andriano was also very helpful with children 12 at church. (Id. at 28.) 13 The Galyons felt that the crime was completely uncharacteristic of the Andriano 14 they knew. (Id. at 28, 41.) They testified that it would be a tragedy for the Ochoas to lose 15 Andriano to the death penalty. (Id.) The Galyons believed the community would be worse 16 off without Andriano and that she would not pose a threat to other inmates. (Id.) 17 Andriano then recalled Dr. Murphy, the domestic violence expert who testified 18 during the guilt phase of trial in support of Andriano’s theory of self-defense. 19 Murphy again testified that Andriano was a victim of domestic violence by her 20 husband (Id. at 48). She testified about the dynamics of abusive relationships. Murphy 21 detailed the “building blocks of trauma” Andriano had experienced. (Id. at 59–60.) She 22 noted that Andriano might have been sexually abused as a toddler, a significant event that 23 “set [her] up for difficulties down the road.” (Id. at 59.) Murphy then testified that a male 24 church member had exposed himself to Andriano when she was six to eight years old— 25 another form of sexual abuse. (Id.) Murphy explained that the role of the church in 26 Andriano’s life was another traumatizing factor, isolating her and denying her the 27 opportunity to experience the outside world. (Id. at 60.) Finally, Murphy described the 28 incident with Shawn King when Andriano broke up with him and he reacted by breaking

- 47 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 48 of 143

1 the window in her vehicle and tearing a ring off her finger. (Id.) According to Murphy, 2 these incidents set Andriano up to be involved in a relationship with someone who would 3 become an abuser. (Id. at 61.) 4 Murphy described Andriano’s relationship with Joe as eight years of ongoing abuse 5 during which she never fought back. (Id. at 61–62.) According to Murphy, this is a typical 6 pattern, where battered women do not fight back until a final incident occurs. (Id. at 63.) 7 Murphy again noted the early accumulation of trauma Andriano experienced which, when 8 combined with terror and intense fear of Joe, caused the fatal attack. (Id. at 64.) According 9 to Murphy, Andriano felt her life was in danger and she was protecting herself. (Id.) 10 Finally, Murphy testified that battered women are not a threat to others in the 11 community. (Id. at 65.) She opined that Andriano was a viable candidate for rehabilitation 12 because she now understood the cause of her actions. (Id. at 66) 13 Donna Ochoa, Andriano’s mother, testified that she loved her daughter whom she 14 described as a “good child, sweet child” and a generous and compassionate person. (Id. at 15 85–86.) Andriano was musically inclined as a child and taught herself to play guitar and 16 piano at ages five and six. (Id. at 86–87.) She was a hard worker who earned her own 17 money to attend musical competitions. (Id. at 87.) She also wrote songs and poems for her 18 mother. (Id. at 88–90.) Andriano was always there for those who needed her, always on 19 the side of the underdog. (Id. at 90.) She would give away money or gifts to those who 20 needed them more. (Id. at 91.) 21 Donna testified that Andriano loved kids, whom she tutored and babysat. (Id.) She 22 learned Spanish and raised money to fund missionary trips to Mexico, where she built 23 churches and homes and donated food and gifts. (Id. at 91–93.) She taught Sunday school 24 until she became involved with Joe. (Id. at 94.) She was involved in other charitable 25 projects such as cleaning roads, delivering Thanksgiving meals to the less fortunate, and 26 visiting nursing homes. (Id. at 95–96.) She would bring classmates home for dinner and 27 adopt stray puppies. (Id. at 96–97.) When Donna underwent surgery, Andriano at age 11 28 or 12 took up the household slack. (Id. at 97–98.)

- 48 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 49 of 143

1 Donna testified that it was Andriano who convinced the Ochoas to adopt Brandon, 2 Andriano’s younger step-brother, from foster care. (Id. at 99.) 3 Donna testified further about Andriano’s relationship with her children. Andriano 4 could not bear to hear her children cry when they got their shots. (Id. at 105.) The children 5 were clean and properly fed and clothed. (Id. at 107.) Andriano read to them. (Id. at 108.) 6 She would not spank the children. (Id. at 110.) Donna testified that Andriano was a “really 7 good mom.” (Id. at 109.) 8 Donna testified that her family, including Brandon, would be devastated if Andriano 9 were executed. (Id. at 113–14.) She did not believe the community would be better off 10 without Andriano. (Id.) Donna testified that Andriano could still contribute, even behind 11 bars, and would not be a threat to the community. (Id. at 115.) 12 Lonnie Inskeep, a family friend of the Ochoas through their church, testified on 13 Andriano’s behalf. (RT 12/13/04 at 38.) He described Andriano as an active, unique 14 teenager, who was kind and considerate, a listener who never got mad, and a “neat person.” 15 (Id. at 40–41.) Inskeep testified that Andriano’s execution would impact his life as he 16 viewed her as a young lady with a lot of potential. (Id. at 42.) 17 Gia Palicki, a friend who babysat Andriano’s children, testified that Andriano was 18 a “great mom” who was patient and wonderful with Gia’s kids as well. (Id. at 50–52.) 19 Andriano’s children were always well-clothed, nourished, and clean. (Id. at 53.) Andriano 20 never raised her voice to her children. (Id.) 21 Barbara Mitchell, another friend of Andriano’s, testified that she had observed 22 Andriano holding, cuddling, and feeding her son Nicholas, making him giggle, and bathing 23 him. (Id. at 71.) Andriano handled discipline of her children “calmly.” (Id.) 24 For Mitchell, Andriano’s execution would be like “ripping your heart out.” (Id. at 25 73.) She testified that Andriano was a good candidate for rehabilitation as a caring, giving, 26 helpful person who could make other people smile. (Id. at 74.) 27 Alejo Ochoa, Andriano’s stepfather, testified that her execution would be 28 “devastating.” (Id. at 82.) He described Andriano as a very protective mother, a “real good

- 49 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 50 of 143

1 mom” who didn’t like to see her children hurt. (Id. at 83.) Ochoa never saw Andriano 2 mistreat the children. (Id. at 85.) While Joe would spank the children with a spoon, 3 Andriano refused to use corporal punishment. (Id.) 4 Ochoa stated that he maintained contact with Andriano in jail through visits and 5 phone calls. (Id. at 87.) He testified that he would not be able to handle her execution. (Id. 6 at 88.) 7 On direct appeal, the Arizona Supreme Court independently reviewed this 8 mitigating evidence and affirmed that it was not sufficiently substantial to call for leniency. 9 Andriano, 215 Ariz. at 511–12, 161 P.3d at 554–55. 10 2. PCR proceedings 11 During the PCR proceedings, the state court granted an evidentiary hearing on 12 Andriano’s claim that trial counsel performed ineffectively in its presentation of mitigating 13 evidence. Andriano offered evidence from three mental health experts: Dr. James Hopper, 14 a clinical psychologist; Dr. George Woods, a neuropsychiatrist; and Dr. Joette James, a 15 clinical neuropsychologist. Andriano’s mother and several childhood friends also testified. 16 Members of the defense team testified, including Patterson, DeLozier, and mitigation 17 specialist Scott MacLeod. Also testifying were Larry Hammond, an attorney and standard- 18 of-care expert, and Keith Rohman, a mitigation expert. In contrast to the theme at the 19 sentencing hearing—that Andriano was a good person driven to violence by domestic 20 abuse—during the PCR hearing the emphasis was on Andriano’s abusive childhood and 21 mental health issues. 22 Dr. Hopper interviewed Andriano for a total of 52 hours; he also interviewed 6 other 23 witnesses, reviewed 29 declarations and volumes of other documentary information, and 24 prepared a 250-page report. (RT 2/3/14, a.m., at 28–31; P-App. 590–93.) His testimony 25 detailed the trauma Andriano experienced during the various stages of her childhood, 26 including, in her earliest years, severe neglect by her mother, emotional and physical abuse 27 by her mother and biological father, Skip Robertson, and exposure to child molesters on 28 Robertson’s side of the family. (Id. at 35–59; P-App. 597–621.)

- 50 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 51 of 143

1 Dr. Hopper testified that later, after her mother had divorced Robertson, Andriano 2 experienced the “extremely disruptive force” of Alejo Ochoa entering her life. (Id. at 63; 3 P-App. 625.) Her family became involved with an abusive, cult-like religion that practiced 4 corporal punishment for any lack of compliance and taught women to be submissive to 5 their husbands. (Id. at 64, 68, 73–78; P-App. 626, 630, 635–40; RT 2/3/14, p.m., at 6–23; 6 P-App. 664–681.) According to Dr. Hopper, “wherever [Andriano] was, she was 7 surrounded by this kind of sick, disturbed, abusive community of people beating children 8 and the [sic] ridiculing them and humiliating them and things like that.” (RT 2/3/14, p.m., 9 at 13; P-App. 671.) 10 As she entered her teenage years, Andriano continued to experience “unrelenting” 11 emotional, physical, and sexual abuse from Alejo. (Id. at 6; P-App. 664.) Dr. Hopper 12 described particular incidents of sexually inappropriate behavior and sexual abuse 13 committed by Alejo. (Id. at 17–44; P-App. 675–702.) 14 According to Dr. Hopper, the cumulative result of these traumas was that Andriano 15 entered adulthood “severely damaged.” (Id. at 45; P-App. 703.) The trauma left her unable 16 to regulate her impulses and emotions; she suffered from problems with executive 17 functioning, dissociation, and memory loss. (Id. at 45–49; P-App. 703–07.) 18 Dr. Woods, in performing his neurological examination, interviewed Andriano three 19 times, interviewed her mother, reviewed a “comprehensive social history,” and analyzed 20 the results of neuropsychological testing carried out by Dr. Myla Young. (RT 2/5/04 at 48– 21 50; P-App. 1094–96.) Dr. Woods diagnosed Andriano with PTSD, complex type; bipolar 22 disorder; dependent personality disorder; caregiver burden; and cognitive deficits. (Id. at 23 43; P-App. 1088.) Dr. Woods testified that these “neuropsychiatric disorders and cognitive 24 deficits” affected Andriano’s conduct at the time of the murder. (Id. at 42–43, 111; P-App. 25 1087–88, 1157.) The conditions undermined her ability to handle emotionally complex and 26 stressful situations and impaired her decision-making ability. (See id. at 111; P-App 1157.) 27 Dr. Joette James, a clinical neuropsychologist, also reviewed the data from Dr. 28 Young’s examination of Andriano. (RT 2/10/14 at 5; P-App. 1469.) Based on that

- 51 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 52 of 143

1 information, Dr. James identified deficits in attention, executive functioning, and 2 processing speed. (Id.) Dr. James testified that these conditions resulted in impulsivity, 3 difficulty adjusting to changing circumstances, and a lower threshold for becoming 4 overwhelmed and shutting down in stressful situations. (Id. at 24–48; P-App. 1488–1512.) 5 Among the lay witnesses called at the PCR evidentiary hearing, Andriano’s mother, 6 Donna, testified that there was a history of bipolar disorder and depression in her family 7 and that she herself had suffered from severe bouts of depression. (RT 2/4/14 at 76–81; P- 8 App. 877–82.) She also testified that she neglected Andriano immediately after she was 9 born and did not want to have anything to do with her, and that she and Andriano’s 10 biological father, Skip, spanked Andriano from the time she was in diapers. (Id. at 91–96; 11 P-App. 892–97.) 12 Donna testified that she sometimes left Andriano alone with Skip’s father, a known 13 child molester; that Skip himself went to prison for molesting his stepdaughter and was 14 accused of molesting his nieces; and that Skip said his brother Tommy probably molested 15 Andriano. (Id. at 94–104; P-App. 895–905.) She also testified that it became Andriano’s 16 duty to “minister” to her stepfather, Alejo, by massaging his head and back when he was 17 upset. (Id. at 153–55; P-App. 594–96.) Alejo also made inappropriate sexual comments to 18 Andriano and bought sexy lingerie for her when she was just 12 or 13 years old. (Id. at 19 156; P-App. 597.) 20 Andriano’s childhood friends Kyre Lort, Jeri Lynn Cunningham, and Jasper Neace 21 testified that the church-affiliated school they attended with Andriano practiced corporal 22 punishment, which involved striking children with the so-called “Rod of Correction.” (See 23 id. at 216–17; P-App. 1017–18.) Lort and Cunningham also testified that Alejo sexually 24 abused them when they were children. According to Cunningham, Alejo put his hand down 25 her nightgown at a sleepover when she was 12; took photos of her and Andriano showering; 26 and put his head in her crotch while she massaged him. (Id. at 222–29; P-App. 1022–29.) 27 Lort testified that at sleepovers when she was in third grade she and Andriano would play 28 dress-up wearing Donna Ochoa’s lingerie. (Id. at 47–51; P-App. 848–52.) Alejo would

- 52 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 53 of 143

1 invite Lort and Andriano to his room where he would be sitting in his underwear. He would 2 touch the girls on their legs, breasts, and genitals, and they would touch his genitals. (Id. at 3 51–60; P-App. 852–61.) 4 Patterson, DeLozier, and MacLeod all testified at the evidentiary hearing about their 5 performance during the penalty stage of Andriano’s trial. Patterson testified that his 6 mitigation strategy was to present Andriano as a good woman—a wonderful mother and 7 daughter, a good Christian, a devoted wife, and a hard worker. (See, e.g., RT 2/7/14 at 48– 8 49, 55; P-App. 1331–32, 1338.) 9 Because this was a post-Ring28 case, with the jury determining Andriano’s sentence, 10 Patterson front-loaded the presentation of mitigating information about Andriano’s good 11 character along with evidence that she was a domestic violence victim who acted in self- 12 defense. (Id. at 105–06; P-App. 1388–89.) The “good woman” defense was the most 13 plausible because Patterson believed there was no credible evidence that Andriano suffered 14 from a serious mental health issue or was sexually abused as a child. (Id. at 58–59; P-App. 15 1340–41.) Neither MacLeod, the mitigation specialist, nor DeLozier, who bore primary 16 responsibility for the mitigation phase of trial, presented Patterson with negative 17 information about the Ochoa family. (Id. at 37; P-App. 1320.) Patterson testified, however, 18 that he should have started the mitigation investigation sooner and more closely supervised 19 DeLozier and MacLeod. (Id. at 20; P-App. 1303.) Patterson believed that DeLozier was 20 actively involved in developing a mitigation case, along with Patrick Linderman, the 21 defense team’s first mitigation specialist. (Id. at 27–28; P-App. 1310–11.) 22 Patterson retained Dr. Richard Rosengard to conduct a mental health evaluation of 23 Andriano. (Id. at 28; P-App. 1311.) The evaluation took place on June 23, 2002. Dr. 24 Rosengard diagnosed Andriano with depression, probable post-traumatic stress disorder 25 (PTSD), and panic disorder. Dr. Rosengard’s report also referenced improper touching by 26 27 28 Ring v. Arizona, 536 U.S. 584, 588–89 (2002), held that a defendant is entitled to 28 a jury determination of “the presence or absence of the aggravating factors required by Arizona law for imposition of the death penalty.”

- 53 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 54 of 143

1 Andriano’s biological father. (Id. at 38; P-App. 1321.) No social history was provided to 2 Dr. Rosengard. (Id. at 53; P-App. 1336.) 3 Three months before trial, Patterson learned that DeLozier was not discussing the 4 case with Andriano in their meetings; instead, he was acting primarily as her spiritual 5 advisor. (Id. at 42; P-App. 1325.) At that point, Patterson began meeting with Andriano 6 regularly to go over the guilt-phase facts in preparation for her taking the stand at trial. (Id.) 7 Patterson’s meetings with Andriano were not focused on mitigation. (Id. at 44; P-App. 8 1327.) 9 Patterson testified that despite the fact that DeLozier had gone on a fast during trial 10 and was dealing with the death of an associate at his law firm,29 DeLozier “gave a pretty 11 powerful summation in Phase 3.” (Id. at 47; P-App 1330.) Patterson “didn’t notice any 12 defect in [DeLozier’s] performance during his participation in the mitigation presentation.” 13 (Id.) 14 Patterson testified that he did not direct the activities of mitigation specialist 15 Linderman. (Id. at 54; P-App. 1337.) Linderman provided no mitigating evidence beyond 16 the “good person” theme. (Id. at 55; P-App. 1339.) 17 In 2004, Scott MacLeod took over as mitigation specialist. (Id. at 55–56; P-App. 18 1339–40.) Patterson met with MacLeod “irregularly.” (Id. at 56; P-App. 1340.) Patterson 19 provided no specific direction for MacLeod. (Id. at 57; P-App. 1341.) 20 Patterson explained his approach to sentencing as follows: 21 Nothing was ever presented to me during the course of my representation of 22 Ms. Andriano that she suffered from a significant mental illness. No information was presented to me that she had a significant drug problem, that 23 she had a significant sexual abuse dysfunctional development, except to the 24 extent that we did develop it through Sharon Murphy. She was uncomfortable with certain of the preferences of her husband and that she did 25 26 29 During the guilt phase of trial DeLozier went on a fast, depriving himself of solid food for some five weeks, for spiritual reasons and to increase his focus. (RT 2/10/14 at 27 140; P-App. 1640; see RT 2/7/14 at 44–45; P-App. 1327–28.) The associate at his firm was 28 murdered in a road-rage incident; his death made it difficult for DeLozier to “get his bearings.” (RT 2/10/14 at 141; P-App. 1642.)

- 54 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 55 of 143

1 it anyway because she thought that was what a good wife should do. I had no 2 independent information that she had a—had been abused as a child or as a young adult or that any of that kind of stuff was visited upon her by relatives, 3 parents, stepparents, anything of that nature. So, by default, the theory of the theme became she’s a good woman, she’s a good mom, she’s a hard worker, 4 she provides for the family, those kinds of things. 5 6 (Id. at 59; P-App. 1342.)

7 Patterson did not investigate whether Andriano had been sexually abused as a child

8 or suffered other trauma, or direct the mitigation specialists, DeLozier, or any mental health

9 expert to do so. (Id. at 62, 64–67; P-App. 1345, 1347–1348.) No such information was

10 derived from meetings with Donna and Alejo. (Id. at 63; P-App. 1346.) “Nothing adverse

11 about her background development, rearing . . . was ever disclosed to me during the course

12 of those meetings with any of those people.” (Id. at 64; P-App. 1347.) Patterson testified

13 that, “Had I been presented with that kind of information, the substance of our meeting

14 would have been different.” (Id.) Patterson relied on DeLozier and the expertise of the

15 mitigation specialists.

16 When asked why he did not investigate whether Andriano had been sexually abused

17 as a child, Patterson explained:

18 Again, it wasn’t something that I believed the standard of care required, as a matter of course, to investigate sexual abuse absent some kind of indication 19 that there was a problem. Dr. Rosengard, in his report, said there may have 20 been, but it didn’t appear to him to be psychologically significant or psychiatrically significantly. So that’s why I didn’t pursue that any further. I 21 had no credible witness who supplied information either that she was sexually abused, nor did the client advise me that there was something there. 22 ... 23 I didn’t think it was a significant issue in the development of mitigation or 24 development of the defense for Ms. Andriano. 25 26 (Id. at 67–68; P-App. 1350–51.)

27 Patterson acknowledged that, “Sexual abuse history can be a significant mitigator.

28 But I had no—no reporters advising me that it was an issue, nor did the client claim that

- 55 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 56 of 143

1 there was an issue.” (Id. at 68; P-App. 1351.) “It certainly wasn’t a strategic decision,” he 2 explained, because “you can’t exercise or make a strategic decision absent some evidence.” 3 (Id.) 4 Patterson testified that he only investigated mental health as it concerned Andriano’s 5 relationship with Joe and the issue of domestic abuse. (Id. at 69; P-App. 1352.) According 6 to Patterson, “we didn’t have any reason to believe that she suffered from a mental illness 7 or disease or defect that either accounted for the incident, nor was compelling mitigation. 8 So we didn’t explore it.” (Id. at 70; P-App. 1353.) 9 Patterson did not direct the mitigation specialists or DeLozier to investigate 10 Andriano’s mental health. (Id. at 73–74; P-App. 1356–57.) He explained: 11 Based upon Dr. Rosengard’s report, I didn’t see that to be an issue in her case. The facts and circumstances of her conduct and the defense that we had 12 chosen were not wholly consistent with mental disease, defect or illness. 13 None of the persons involved in the case brought to my attention any need for further mental health inquiry. 14 15 My experiences person-to-person with Ms. Andriano didn’t lead me to believe that there was an issue—mental health issue. None of her close 16 relatives or family suggested there was a mental health issue. Her history, her 17 performance in high school suggested that if she had mental health issues, she had certainly adapted with them. And to suggest that she had mental 18 health problems, see, I can’t say what I would have done with that 19 information had it been developed at the time. We didn’t develop it. So I don’t know, beyond what I just told you, whether it would have had 20 application in the trial. 21 (Id. at 74–75; P-App. 1357–58.) 22 Patterson testified that he had capital case experience at the time of Andriano’s case, 23 having taken approximately eight death penalty cases to trial. (Id. at 98–99; P-App. 1381– 24 82.) 25 Patterson reiterated that he front-loaded the mitigation evidence, including evidence 26 of self-defense, which carried over from the guilt to the penalty phase of trial. “[T]he fact 27 that she was a good person coupled with her victim status as a domestically abused person, 28

- 56 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 57 of 143

1 that’s a compelling mitigation theme and that was the thrust of our theme.” (Id. at 108; P- 2 App. 1391.) 3 Patterson acknowledged that Dr. Murphy’s report “touched on” abuse by 4 Andriano’s biological father but noted, “Mom does not have any proof this happened . . . 5 but has thought it might be a possibility.” (Id. at 113; P-App. 1396.) Dr. Murphy, despite 6 her numerous meetings with Andriano, did not discover the alleged abuse by Alejo. (Id. at 7 114; P-App. 1397.) Patterson testified that the defense team made it known to the Ochoas 8 that information about topics like sexual abuse would be relevant at sentencing. (Id. at 163; 9 P-App. 1446.) 10 Patterson testified that he first heard the allegations against Alejo during the PCR 11 proceedings. (Id. at 123; P-App. 1406.) He reiterated that during his meetings with the 12 Ochoas, neither Donna, Alejo, nor Brandon disclosed any allegations of abuse. (Id. at 125, 13 149–50; P-App. 1408, 1432–33.) 14 Patterson described Andriano as a helpful, “candid,” “forthcoming” client. (Id. at 15 129; P-App. 1411.) However, she never disclosed any allegations of sexual abuse. (Id.) 16 “She never suggested to me that her biological grandfather touched her improperly, that 17 her biological father touched her improperly, or that any other human being, other than 18 Joseph Andriano, touched her in a manner that she didn’t wish to be touched sexually.” 19 (Id. at 132–33; RT 1414–15.) 20 Patterson again testified about his decision not to pursue mental health as a 21 mitigating circumstance, explaining that “there was nothing in Rosengard’s report that 22 screamed this woman had a mental health issue. Nothing in my experience with the woman 23 led me to conclude that she had a mental health issue.” (Id. at 135; P-App. 1418.) Patterson 24 interpreted Dr. Rosengard’s report as suggesting that Andriano’s mental health symptoms 25 were situational. (Id. at 135–36; P-App. 1418–19.) Patterson relied on Dr. Rosengard as an 26 expert he trusted. (Id. at 136; P-App. 1419.) 27 Patterson further testified that he had a strategic reason for being wary of mental 28 health defenses:

- 57 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 58 of 143

1 Now, in my experience discussing with my attorneys in the unit, my own 2 personal experience, mental health, unless it’s schizophrenia, unless it’s the kind of mental health that’s palpable, that the average juror can relate to, it is 3 somewhat—and the prosecution dismisses it as the abuse excuse. And, unfortunately, it also, in my estimation, portrays your client as a defective 4 human being, which may give a potential juror license to vote to kill your 5 client. So I’m very, very reserved about the use of mental health information as mitigation. 6 7 The downside, once you notice it, then you subject your client to evaluation 8 from the government’s expert. And there are a number of local experts who are very adept at portraying your client as an anti-social human being. 9 10 (Id. at 142–43; P-App. 1425–26.) 11 Patterson testified that he saw no downside to the good person/domestic abuse 12 survivor mitigation theme. (Id. at 146; P-App. 1429.) 13 As discussed above, DeLozier also testified at the evidentiary hearing. He testified 14 that he did not have Andriano evaluated as a potential victim of sexual assault, although 15 information in the record was consistent with what DeLozier understood to be symptoms 16 of sexual abuse. (RT 2/10/14 at 111, 116; P-App. 1575, 1580.) He never investigated 17 whether Andriano was molested by her grandfather, biological father, or stepfather, and 18 did not investigate Andriano’s reported sleep issues, dissociation, memory issues, and 19 childhood trauma. (See id. at 129–30; P-App. 1593–94.) 20 DeLozier did not investigate potentially negative information about the Andriano 21 family. (Id. at 135; P-App. 1599.) He testified that it was “possible” his representation of 22 the Ochoas affected his failure to investigate issues regarding Andriano’s childhood. (Id. 23 at 138; P-App. 1602.) 24 Finally, Dr. Steven Pitt, a psychiatrist, and Dr. Kirin Amin, a neuropsychologist, 25 testified for the State in rebuttal. Dr. Amin tested Andriano for cognitive deficits, reviewed 26 prior testing, and concluded that she did not suffer from a cognitive disorder. (RT 2/14/14 27 at 9–17, 25–26; P-App. 1856–64, 1872–73.) Dr. Pitt diagnosed Andriano with personality 28 disorder not otherwise specified with antisocial, borderline, and dependent features, and

- 58 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 59 of 143

1 adjustment disorder with mixed anxiety and depressed mood. (Id. at 77–78; P-App. 1924– 2 25.) He also opined that Andriano understood the wrongfulness of her conduct and could 3 conform it to the law; that she was not under unusual or substantial duress at the time of 4 the offense; and that there was no causal connection between her mental conditions and the 5 murder. (Id. at 80–90; P-App. 1927–37.) 6 The PCR court denied relief. (ME 11/1/14.) In addressing the deficient performance 7 prong under Strickland, the court found that “there was a lack of communication and 8 coordination between members of the defense team.” (Id. at 17.) The court nevertheless 9 concluded that counsel “secured and presented that evidence that was readily available at 10 the time of trial.” (Id.) The court noted that “the mitigation presentation was not limited to 11 the penalty phase; the presentation of mitigating evidence was ‘front-loaded’ and began 12 during Patterson’s guilt phase presentation.” (Id.) 13 With respect to some of the new evidence produced during the PCR proceedings, 14 the court was not convinced of its “credibility” or “its availability at trial.” (Id.) In 15 particular, the court noted that at trial Andriano “denied experiencing anything other than 16 a strict, religiously-directed childhood” and “testified that she was neither physically nor 17 sexually abused.” (Id. at 15.) Accordingly, the court found that the new “bad facts” 18 evidence about Andriano’s “horrific childhood”—including evidence of sexual abuse— 19 “may not be true,” may be “merely speculative,” or may have been concealed by Andriano 20 and her family. (Id. at 20.) 21 In considering Strickland’s second prong, prejudice, the court “contrast[ed] the trial 22 presentation, which provided a singular, linear view of mitigation, with the post-conviction 23 presentation, which provided a global, cumulative overview of [Andriano’s] development 24 over time.” (Id. at 21.) Here the court focused on the new evidence of Andriano’s abusive 25 childhood. The court noted that, at trial, Andriano had presented herself as a “good person 26 raised with a good background who made a bad decision—attributable to her being a victim 27 of domestic violence.” (Id. at 22.) By contrast, at the PCR hearing, Andriano presented 28 evidence to show that she was “a person shaped by her horrendous childhood—a victim of

- 59 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 60 of 143

1 sexual abuse [and] mental health issues.” (Id.) The court concluded that Andriano’s 2 childhood “was somewhere between ‘good’ and ‘impoverished,’ but was neither ‘horrific’ 3 nor ‘harrowing.’” (Id.) 4 The court viewed much of the omitted mitigating evidence as “cumulative to the 5 evidence presented at trial.” (Id. at 23.) The court also based its findings on an assessment 6 of the credibility of the witnesses, explaining that “the Court’s resolution necessarily relies 7 on an assessment of the credibility of evidence presented regarding sexual abuse, 8 harrowing childhood and mental health presented at the PCR hearing.” (Id. at 13) 9 (emphasis in original). The court found “the defendant’s and her witnesses’ words [denying 10 abuse], shared before a death sentence was imposed, to be more credible” than the new 11 evidence of physical and sexual abuse. (Id. at 15.) In making this determination, the court 12 noted the inconsistencies between the trial and PCR evidence and inconsistencies in the 13 testimony at the PCR hearing. (Id. at 12, 15.) The court specifically found that the 14 allegations against Alejo Ochoa were “undermined by the absence of reports to law 15 enforcement; the lack of an outside investigation; and the denial by the defendant at trial.” 16 (Id. at 12.) The court also noted that the allegations were reported by “interested third 17 parties,” including Andriano’s close childhood friends and her mother, who knew about 18 the alleged abuse but did not report it until eight years after Andriano’s trial. (Id. at 12, 15.) 19 With respect to Andriano’s new mental health evidence, the court accepted as true 20 the opinions of Andriano’s experts that she “suffer[ed] from depression, PTSD, impulsivity 21 and impairment of executive functioning.” (Id. at 13.) However, the court found this 22 insufficient to establish that Andriano’s “capacity to appreciate the wrongfulness of her 23 conduct was significantly impaired” under the A.R.S. § 13-751(G)(1) mitigating factor.30 24 (Id.) The court noted that in her allocution at trial Andriano acknowledged that she had 25 made a “horrific choice” to kill Joe. (Id.) The court then found that Andriano’s argument 26 27 30 This factor applies where “[t]he defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was 28 significantly impaired, but not so impaired as to constitute a defense to prosecution.” A.R.S. § 13–751(G)(1).

- 60 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 61 of 143

1 that stress and impulsivity led to the murder would have carried “little weight” in 2 mitigation, particularly because it was killing Joe that “brought on the stress.” (Id.) 3 Taking into account the totality of the mitigating evidence, the PCR court 4 concluded: 5 The Court acknowledges that the defendant is the sum of her experiences, which cumulatively impacted her development; the Court, however, cannot 6 conclude that the evidence presented is sufficiently substantial to call into 7 question the penalty imposed by the jury. This is particularly so because the attributes attributed to the defendant are frequently characterized as 8 “consistent with” someone who has had certain life experiences or are 9 recounted by those whose recollections have varied, if only in emphasis, over time. 10 ... 11 At the time she murdered her husband, the defendant was an intelligent, thirty-year-old young woman who had completed high school, made good 12 grades, received awards in various competitions (swimming; music), 13 attended college, worked for a living, gotten married and had two children. Because the defendant’s act of poisoning her husband coupled with the fact 14 that he did not immediately die as anticipated resulted in a stressful situation 15 with which she had to contend, the proffered mitigation testimony would be accorded little weight by any trier of fact. 16 The Court finds that the mitigation evidence offered at the PCR, if offered at 17 trial, would not be sufficiently substantial to warrant leniency, and that a 18 jury—confronted with this evidence—would not have returned with a different sentence. 19 20 (Id. at 23–24.) The court then noted that it was “not persuaded that the post-conviction

21 mitigation evidence would be sufficiently substantial to warrant leniency, in light of the

22 (F)(6) aggravating factor (‘cruelty’ prong).” (Id. at 30.)

23 B. Clearly established federal law

24 As discussed above, claims of ineffective assistance of counsel are governed by

25 Strickland, 466 U.S. 668. To prevail under Strickland, a petitioner must show both deficient

26 performance and prejudice. Id. at 687–88.

27 To show deficient performance, Andriano must establish that counsel’s

28 representation was unreasonable “[i]n light of the ‘variety of circumstances faced by

- 61 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 62 of 143

1 defense counsel and the range of legitimate decisions regarding how best to represent a 2 criminal defendant.’” Wong, 558 U.S. at 17 (quoting Strickland, 466 at 688–89). 3 “[S]trategic choices made after thorough investigation of law and facts relevant to plausible 4 options are virtually unchallengeable.” Strickland, 466 at 690. The Court’s scrutiny of 5 counsel’s performance is “highly deferential,” Strickland, 466 U.S. at 689, and Andriano 6 “bears the heavy burden” of proving that counsel’s performance was unreasonable, 7 Murtishaw, 255 F.3d at 939. 8 The Court must judge the reasonableness of counsel’s conduct based on the facts of 9 this case, viewed at the time of counsel’s conduct, applying a strong presumption that 10 counsel’s actions fall within the wide range of “reasonable professional assistance.” 11 Strickland, 466 U.S. at 689. 12 Counsel have substantial leeway in making strategic and tactical decisions about 13 how to present a case at a capital sentencing hearing and are not required to offer every 14 conceivable mitigation defense if, after proper investigation and review, they conclude that 15 it is not in the defendant’s best interest to do so. Darden, 477 U.S. at 186 (explaining that 16 trial counsel’s decision not to introduce mitigating evidence was not deficient because such 17 evidence would have allowed the prosecution to introduce damaging evidence); Burger v. 18 Kemp, 483 U.S. 776, 793 (1987) (finding no ineffective assistance where counsel declined 19 to present evidence of defendant’s violent tendencies that was at odds with trial strategy of 20 portraying defendant’s actions as result of co-defendant’s strong influence on his will). 21 “An attorney need not pursue an investigation that would be fruitless, much less one that 22 might be harmful to the defense.” Richter, 562 U.S. at 108. A decision not to investigate 23 mitigation “must be directly assessed for reasonableness in all the circumstances, applying 24 a heavy measure of deference to counsel’s judgments.’” Strickland, 466 U.S. at 691; see 25 Wiggins v. Smith, 539 U.S. 510, 521–22 (2003). 26 With respect to Strickland’s second prong, Andriano must affirmatively prove 27 prejudice by “show[ing] that there is a reasonable probability that, but for counsel’s 28 unprofessional errors, the result of the proceeding would have been different. A reasonable

- 62 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 63 of 143

1 probability is a probability sufficient to undermine confidence in the outcome.” 466 U.S. 2 at 694. This showing “requires a ‘substantial,’ not just ‘conceivable,’ likelihood of a 3 different result.” Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (quoting Richter, 562 U.S. 4 at 112). “Counsel’s errors must be ‘so serious as to deprive the defendant of a fair trial, a 5 trial whose result is reliable.’” Apelt v. Ryan, 878 F.3d 800, 831 (9th Cir. 2017) (quoting 6 Strickland, 466 U.S. at 687). 7 “[A] penalty phase ineffective assistance claim depends on the magnitude of the 8 discrepancy between what counsel did investigate and present and what counsel could have 9 investigated and presented.” Stankewitz v. Woodford, 365 F.3d 706, 716 (9th Cir. 2004). 10 The Court must “reweigh the evidence in aggravation against the totality of available 11 mitigating evidence.” Wiggins, 539 U.S. at 534. The “totality of the available evidence” 12 includes “both that adduced at trial, and the evidence adduced” in subsequent 13 proceedings. Id. at 536 (quoting Williams (Terry), 529 U.S. at 397–98). While the Court is 14 “mindful that the state courts are not required to address every jot and tittle of proof 15 suggested to them,” or “‘make detailed findings addressing all the evidence,’” Taylor, 366 16 F.3d at 1001 (quoting Miller-El I, 537 U.S. at 346), “the state-court fact-finding process is 17 undermined where the state court has before it, yet apparently ignores, evidence that 18 supports petitioner’s claim.” Id. 19 Finally, under the AEDPA, ineffective assistance of counsel claims are subject to 20 two layers of deference. “Establishing that a state court’s application of Strickland was 21 unreasonable under § 2254(d) is all the more difficult.” Richter, 562 U.S. at 105; see 22 Mirzayance, 556 U.S. at 123 (discussing “doubly deferential” standard of review); Titlow, 23 571 U.S. at 15. 24 C. Analysis 25 Andriano alleges that the PCR court’s decision denying this claim is both an 26 unreasonable application of Strickland, § 2254(d)(1), and based on an unreasonable 27 determination of the facts, § 2254d)(2), and therefore this Court’s review of the claim is de 28

- 63 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 64 of 143

1 novo. (Doc. 17 at 74–79.) The Court finds that Andriano is not entitled to relief whether 2 the claim is reviewed with AEDPA deference or de novo. 3 At the outset the Court notes that much of Andriano’s argument that she received 4 ineffective assistance of counsel at sentencing is premised on the behavior of co-counsel 5 DeLozier, who was responsible for her penalty phase defense. However, her complaints 6 about his conduct—that he acted as her spiritual adviser, that he fasted during trial, and 7 that he was traumatized by the killing of a colleague—are not independent grounds for 8 finding his performance deficient. Because counsel’s performance is judged against an 9 “objective standard of reasonableness,” Strickland, 466 U.S. at 688, the circumstances 10 Andriano cites are relevant only to the extent she can “point to specific acts or omissions 11 that may have resulted from” them. Woods v. Sinclair, 764 F.3d 1109, 1132 (9th Cir. 2014); 12 see Bonin v. Calderon, 59 F.3d 815, 828–29 (9th Cir. 1995); Cook v. Schriro, 538 F.3d 13 1000, 1016 (9th Cir. 2008). 14 1. The PCR court’s ruling was not an unreasonable application of Strickland 15 Andriano first argues that the PCR court “applied incorrect standards when 16 assessing the credibility of Andriano’s evidence.” (Doc. 17 at 74.) She asserts that the court 17 evaluated her mental health evidence only as it related to A.R.S. § 13-751(G)(1) and failed 18 to consider it as nonstatutory mitigation. (Id. at 75.) She argues that the court “ignored both 19 prevailing professional norms and the case law interpreting Strickland” with respect to the 20 proper scope of a mitigation investigation. (Id.) Finally, she contends that the court 21 improperly “relied on the evidence presented at trial to decide that the performance of 22 counsel was not deficient.” (Id. at 76.) These arguments are unpersuasive. 23 The record shows that the PCR court did consider Andriano’s mental health 24 evidence as nonstatutory mitigation. This is apparent from the court’s discussion, 25 immediately following its finding that the statutory mitigating factor was not proved, that 26 Andriano’s evidence of impulsivity and an impaired ability to respond under stress were 27 entitled to little weight as mitigating circumstances. (ME 11/01/14 at 13.) If the court did 28

- 64 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 65 of 143

1 not consider the evidence as nonstatutory mitigation, such a determination would not have 2 been necessary after its finding with respect to § 13-751(G)(1). 3 Next, the record does not support Andriano’s argument that the PCR court failed to 4 apply prevailing professional norms and the case law interpreting Strickland. Nothing in 5 the order suggests such an interpretation. The court discussed the Strickland standard and 6 quoted the case for the proposition that reviewing courts “must judge the reasonableness 7 of counsel’s challenged conduct on the facts of the particular case, viewed as of the time 8 of counsel’s conduct,” 466 U.S. at 690. (ME 11/1/14 at 3.) Then, citing Rompilla v. Beard, 9 545 U.S. 374 (2005), the court wrote that “counsel may have a duty to investigate ‘available 10 mitigating evidence’ . . . even where the defendant and family members deny its 11 existence.”31 (Id.) The court clearly applied Strickland and its progeny in its analysis of 12 deficient performance. Even if the PCR court had not cited Strickland, it is presumed that 13 the court applied the correct standard. See Woodford v. Visciotti, 537 U.S. 19, 24 (2002). 14 Finally, the Court finds nothing problematic about the PCR court’s use of trial 15 evidence in assessing the credibility of the evidence presented during the PCR proceedings. 16 Andriano cites the PCR court’s opinion, with respect to counsel’s handling of Andriano’s 17 penalty-phase testimony, that “the shortcomings were neither apparent at trial nor captured 18 in the record.” (ME 11/1/14 at 17.) This assessment of counsel’s performance, taken in 19 context of the PCR court’s ruling as a whole, is not inconsistent with Strickland. In fact, 20 contrary to Andriano’s argument, the fact that the judge in the PCR proceedings also 21 presided over her trial and sentencing, and therefore was familiar with the record, provides 22 the Court an additional reason to extend deference to his ruling. The Ninth Circuit has held 23 that when the judge who presided at the PCR proceeding was also the trial judge, the 24 reviewing court is considerably less inclined to order relief because doing so “might at least 25 approach ‘a looking-glass exercise in folly.’” Smith v. Stewart, 140 F.3d 1263, 1271 (9th 26 Cir. 1998) (quoting Gerlaugh v. Stewart, 129 F.3d 1027, 1036 (9th Cir. 1997)); see Schurz 27 31 The PCR court also cited Wiggins, 539 U.S, at 534, Wong, 558 U.S. at 19–20, and 28 Richter, 562 U.S. at 111–12, in its discussion of Strickland’s prejudice prong. (ME 11/1/14 at 21.)

- 65 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 66 of 143

1 v. Ryan, 730 F.3d 812, 816 (9th Cir. 2013) (“We are particularly confident in so concluding 2 [that Schurz was not prejudiced by counsel’s performance at sentencing] in light of the fact 3 that the judge who sentenced Schurz already reviewed much of the ‘new’ evidence through 4 the state post-conviction process, and found it insufficient to change the sentence from 5 death.”); but see Kayer v. Ryan, 923 F.3d 692, 720 (9th Cir. 2019) (rejecting argument that 6 rulings of PCR judge who was also trial judge are entitled to “special deference” because 7 prejudice is assessed “independent of the particular judge or judges”). In any event, this 8 Court’s “review of the state habeas court’s credibility determinations is highly deferential.” 9 Mann v. Ryan, 828 F.3d 1143, 1153 (9th Cir. 2016). 10 Under 28 U.S.C. § 2254(d)(1), “an unreasonable application of federal law is 11 different from an incorrect application of federal law.” Williams (Terry), 529 U.S. at 410 12 (O’Conner, J., concurring); see Bell, 535 U.S. at 694. Federal habeas relief is precluded 13 when “fairminded jurists” could disagree on the correctness of the PCR court’s denial of 14 this claim. See Richter, 562 U.S. at 101. For the reasons just discussed, Andriano has not 15 met her burden of showing “there was no reasonable basis for the state court to deny relief.” 16 Id. at 98; see Mirzayance, 556 U.S. at 123 (discussing doubly deferential standard of review 17 under Strickland and AEDPA). 18 The PCR court did not unreasonably apply Strickland in denying this claim. 19 2. The PCR court’s ruling was not based on an unreasonable determination of 20 the facts 21 Andriano argues that the PCR court “ignored the abundant evidence of prevailing 22 professional norms and duties of a capital lawyer at sentencing. . . .” (Doc. 17 at 76.) She 23 cites the court’s “uncertainty” (ME 11/1/14) about the extent of the mitigation investigation 24 and faults the court for making “no actual findings regarding the scope of the 25 investigation. . . .” (Doc. 17 at 76.) According to Andriano, the court “ignored evidence 26 presented by PCR counsel in favor of reminiscing about events at trial and pointing out 27 that nothing seemed wrong.” (Id. at 77.) 28

- 66 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 67 of 143

1 The record refutes the allegation that the court ignored evidence presented during 2 the PCR proceedings. Rather, the court considered evidence of the scope of the mitigation 3 investigation but found some of the evidence “not credible” or “speculative.” (ME 11/1/14 4 at 17.) This is because the mitigation specialist, MacLeod, “remembered little” of it and 5 the mitigation expert, Rohman, could only “infer” the scope of the investigation based on 6 the evidence presented at trial and during the PCR proceedings. (Id.) 7 Andriano next argues that the PCR court erroneously found that the mitigation 8 investigation was “front-loaded.” (Doc. 17 at 77.) According to Andriano, this finding was 9 unreasonable because lead counsel Patterson testified that the mitigation investigation did 10 not begin until immediately before trial and the defense team was still gathering records 11 after the guilt phase. (Id.) The Court agrees with Respondents that there is no inherent 12 contradiction between the timing of the investigation as described by Patterson and 13 frontloading the presentation of mitigating evidence. Patterson himself testified that the 14 mitigation investigation was front-loaded with guilt-phase testimony showing Andriano 15 was a good person subjected to domestic violence, and the record, including Dr. Murphy’s 16 testimony, confirms that. (RT 2/7/14 at 105–06, 108; P-App. 1388–1389, 1391.) 17 Andriano contends that the PCR court erred when it “repeatedly discounted the 18 credibility of evidence based on the fact that this evidence was different from what was 19 presented at trial.” (Doc. 17 at 77.) This argument is unconvincing because the PCR court 20 was entitled to make credibility determinations based on inconsistencies in the testimony. 21 The court did not ignore evidence presented during the PCR proceedings, as Andriano 22 maintains, but properly compared that evidence with the mitigating evidence presented at 23 trial as part of its prejudice analysis under Strickland. (See ME 1/01/14 at 23–24, 30.) 24 Finally, Andriano argues that the PCR court was “unreasonable in its determination 25 that the evidence presented in the post-conviction proceedings was not ‘available’ at the 26 time of trial based on Andriano’s testimony.” (Doc. 17 at 78.) Andriano testified at trial 27 that her stepfather had never “touched [her] improperly or harmed [her] physically.” (RT 28 10/25/04 at 43.) Much of the PCR proceedings were intended to show the opposite. The

- 67 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 68 of 143

1 court was not obligated to accept Andriano’s argument that her mental health issues, 2 including dissociation, prevented her from accessing her memories of abuse by her 3 stepfather, when neither her family nor her friends had reported such abuse at the time of 4 Andriano’s trial and sentencing. See Crittenden v. Ayers, 624 F.3d 943, 966–67 (9th Cir. 5 2010) (finding that counsel did not render ineffective assistance where interviews with 6 family members did not reveal anything that would put counsel on notice of abuse); Babbitt 7 v. Calderon, 151 F.3d 1170, 1174 (9th Cir. 1998) (“Counsel is not deficient for failing to 8 find mitigating evidence if, after a reasonable investigation, nothing has put the counsel on 9 notice of the existence of that evidence.” (quotation omitted). 10 Under 28 U.S.C. § 2254(d)(2), habeas relief is available only if the state court 11 decision was based upon an unreasonable determination of the facts. Miller-El II, 545 U.S. 12 at 240. A state court’s factual determinations are presumed correct and a petitioner bears 13 the burden of overcoming that presumption with clear and convincing evidence. 28 U.S.C. 14 § 2254(e)(1); Miller-El I, 537 U.S. at 340; see Davis v. Woodford, 384 F.3d 628, 638 (9th 15 Cir. 2004). 16 Andriano has not met her burden of overcoming the presumption of correctness 17 attached to the PCR court’s findings. An appellate panel could reasonably conclude that 18 the PCR court’s findings are supported by the record. Taylor, 366 F.3d 1000; see Wood, 19 558 U.S. at 301 (explaining that a state court’s “factual determination is not unreasonable 20 merely because [a] federal habeas court would have reached a different conclusion in the 21 first instance”). The PCR court’s ruling was not based on an unreasonable determination 22 of the facts. 23 Under the doubly deferential standard established by Strickland and the AEDPA, 24 Mirzayance, 556 U.S. at 123, Claim 3(A) is meritless and will be denied 25 3. The claim fails under de novo review 26 Because both parties address the issue, the Court will evaluate Andriano’s claim of 27 ineffective assistance of counsel at sentencing without the deference accorded to the state 28 court’s ruling under AEDPA. For the reasons discussed next, the Court finds that Andriano

- 68 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 69 of 143

1 has not met her burden under Strickland of showing deficient performance and prejudice. 2 Andriano alleges that counsel did not “conduct a thorough investigation of her 3 background in preparation for sentencing.” (Doc. 17 at 80.) She argues that counsel’s 4 presentation at sentencing omitted “‘classic’ mitigating factors that affected Andriano’s 5 behavior throughout her life, including at the time of the crime.” (Id. at 83.) She asserts 6 that if this evidence had been presented, there was a “reasonable probability of a different 7 result in the penalty phase.” (Id.) 8 In her reply brief, Andriano specifically cites counsel’s failure to obtain and present 9 mental health evidence at sentencing despite suggestions by Dr. Potts, Dr. Murphy, and 10 Kandy Rohde that Andriano should be evaluated further. (Id. at 39–40.) 11 Andriano contends that because counsel failed to follow up on these suggestions for 12 additional evaluations, “the jury was left with an incomplete and inadequate explanation 13 for the offense as well as Andriano’s behaviors, including her extramarital affairs, that was 14 not sufficient to combat the prosecutor’s theory that she coldly committed the offense.” 15 (Doc. 42 at 41.) Andriano asserts that as a result of this failure: 16 The jury never heard that Andriano’s emotional dysregulation caused her to 17 attempt to hide her emotions from herself and others or to “dissociate” and become disconnected from them. Nor did they hear that her lifetime of abuse 18 and neglect, in conjunction with her family’s history and adherence to a 19 religious cult, rendered her extremely vulnerable to developing psychiatric disorders such as bipolar disorder marked by abnormal manic and depressive 20 states, complex post-traumatic stress disorder, and dependent personality 21 disorder. Thus, trial counsel willfully ignored and failed to present credible and compelling evidence that Andriano’s mental health disorders rendered 22 her incapable of the mens rea required to commit first-degree murder. 23 (Id.) (citations omitted). 24 Respondents argue that counsel’s decision not to present expert testimony at 25 sentencing about Andriano’s mental health was reasonable. (Doc. 22 at 86.) The defense 26 expert, Dr. Rosengard, diagnosed Andriano with depression, probable PTSD, and panic 27 disorder. (Dr. Rosengard’s report dated August 27, 2002; P-App. 2443.) He did not 28 recommend additional testing or consultation with another expert. (RT 2/7/14 at 74; P-

- 69 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 70 of 143

1 App. 1357.) Patterson’s own interactions with Andriano did not suggest there was a mental 2 health issue, and Andriano’s relatives did not report any such issues. (Id.) Patterson 3 himself, based on his own experience with juries, was skeptical of pursuing a mental health 4 defense without stronger evidence. (Id. at 142–43; P-App. 1425–26.) 5 The Strickland Court held, in a passage cited by the PCR court (ME 11/1/14 at 15– 6 16), that “[t]he reasonableness of counsel’s actions may be determined or substantially 7 influenced by the defendant’s own statements or actions.” 466 U.S. at 691. The Court 8 explained: 9 Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. 10 In particular, what investigation decisions are reasonable depends critically 11 on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the 12 defendant has said, the need for further investigation may be considerably 13 diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be 14 fruitless or even harmful, counsel’s failure to pursue those investigations may 15 not later be challenged as unreasonable.

16 Id.; see Mickey v. Ayers, 606 F.3d 1223, 1243 (9th Cir. 2010) (“We refuse to find counsel 17 deficient for not uncovering evidence that Mickey did not tell the original 18 investigators. . . .”). Neither Andriano nor her family offered evidence that she suffered 19 from serious mental health issues, just as they did not report sexual abuse by Alejo. Counsel 20 properly took this information, or lack of information, into account in making their 21 “litigation decisions.” See Strickland, 466 U.S. at 691. 22 Based on these factors, counsel decided to pursue another mitigation theory, one 23 that had been front-loaded into the guilt phase of trial: that Andriano was a good person 24 driven to act as she did after suffering years of domestic violence at the hands of her 25 husband. Counsel supported this theory with expert testimony from Dr. Murphy. See 26 Turner v. Calderon, 281 F.3d 851, 875–76 (9th Cir. 2002) (“The choice of what type of 27 expert to use is one of trial strategy and deserves a heavy measure of deference.”). 28

- 70 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 71 of 143

1 “Because of the difficulties inherent in fairly evaluating counsel’s performance, 2 courts must ‘indulge a strong presumption that counsel’s conduct falls within the wide 3 range of reasonable professional assistance.’” Gulbrandson v. Ryan, 738 F.3d 976, 988 4 (9th Cir. 2013) (quoting Strickland, 466 U.S. at 689). “This presumption of reasonableness 5 means that not only do we ‘give the attorneys the benefit of the doubt,’ we must also 6 ‘affirmatively entertain the range of possible reasons [defense] counsel may have had for 7 proceeding as they did.’” Id. (quoting Pinholster, 563 U.S. at 196) (additional citations 8 omitted); see also Leavitt v. Arave, 646 F.3d 605, 609 (9th Cir. 2011). As the Strickland 9 Court explained, “strategic choices made after thorough investigation of law and facts 10 relevant to plausible options are virtually unchallengeable.” Strickland, 466 at 690. 11 Here, counsel investigated Andriano’s mental health before pursuing another course 12 based on their professional judgment. Their expert, Dr. Rosengard, did not advise them to 13 obtain additional testing. See Wildman, 261 F.3d at 838 (“Trial counsel could reasonably 14 rely on [the] initial expert investigation and Wildman did not show that the expert retained 15 revealed that further investigation would be productive.”); cf. Earp v. Cullen, 623 F.3d 16 1065, 1077 (9th Cir. 2010) (“An expert’s failure to diagnose a mental condition does not 17 constitute ineffective assistance of counsel, and [a defendant] has no constitutional 18 guarantee of effective assistance of experts.”). 19 Even if counsel’s investigation into Andriano’s mental health was less than 20 complete, a decision not to investigate mitigation “must be directly assessed for 21 reasonableness in all the circumstances, applying a heavy measure of deference to 22 counsel’s judgments.’” Strickland, 466 U.S. at 691; see Wiggins, 539 U.S. at 521–22. It is 23 “strongly presumed” that counsel “made all significant decisions in the exercise of 24 reasonable professional judgment.” Strickland, 466 at 690; see Allen, 395 F.3d at 998. 25 Under the circumstances of this case, it was reasonable for counsel to pursue the 26 domestic violence theory rather than the relatively weak mental health evidence offered by 27 Dr. Rosengard. In addition, the domestic violence evidence had an exculpatory function, 28 explaining why Andriano acted as she did in attacking Joe. See Allen, 395 F.3d at 1005–10

- 71 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 72 of 143

1 (noting that mitigating evidence may serve both a “humanizing” and an “explanatory” or 2 “exculpatory” purpose, with greater weight generally being ascribed to the latter). 3 Andriano has not overcome the presumption that counsel made a reasonable strategic 4 decision to present the opinion of the domestic violence expert, Dr. Murphy, instead of 5 expert mental health testimony. 6 Andriano has also failed to prove that she was prejudiced by counsel’s performance 7 at sentencing, specifically by the omission of mental health evidence. 8 First, counsel did present strong mitigating evidence. The lay witnesses testified 9 about Andriano’s good character, her non-violent nature, their love for her, and the effect 10 her execution would have on them. 11 Dr. Murphy testified not only about the domestic violence Andriano suffered, but 12 the sexual abuse she experienced as a toddler and a young girl and the oppressive, cult-like 13 nature of the religion she was raised in. In the absence of allegations of sexual abuse by 14 Alejo Ochoa, an accusation Andriano no longer relies on to support her claims, there is 15 nothing about Andriano’s childhood that was not presented at sentencing through Dr. 16 Murphy’s testimony. 17 In addition, the mitigating value of the mental health evidence Andriano claims 18 should have been presented is reduced because such evidence is inconsistent with many of 19 the facts of the crime and Andriano’s prior and subsequent behavior. For instance, 20 Andriano carefully planned Joe’s murder, researching poisons and obtaining the sodium 21 azide using a false name and business license. (See RT 9/8/04 at 65; RT 9/21/04 at 29–115; 22 RT 9/22/04 at 22–146.) She also asked male friends to pose as Joe for a life insurance 23 physical examination, offering to pay one of the men $50,000. Andriano, 215 Ariz. at 502, 24 161 P.3d at 545. After killing Joe, she arranged the crime scene to make it look like a 25 struggle had occurred, id. at 501, 161 P.3d at 544, and after being taken into custody she 26 called a colleague and asked her to hide certain items that were in Andriano’s office, id. 27 This conduct is not consistent with the experts’ opinion that Andriano’s mental health 28 conditions included impulsivity and an inability to regulate her emotions while under

- 72 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 73 of 143

1 stress. See Wong, 558 U.S. at 24–25 (finding that petitioner was not prejudiced by failure 2 to present evidence of emotional instability and impulsivity where the “cold, calculated 3 nature” of the murder “would have served as a powerful counterpoint”). To the extent that 4 Andriano acted impulsively during the murder, the stressor causing that impulsive behavior 5 was, as the PCR court noted, the fact that her plan to poison Joe failed and he did not die 6 as intended. (ME 11/1/14 at 23.) Expert testimony about an impaired ability to react to 7 stressors would have been of minimal mitigating value. 8 The mitigating weight of Andriano’s mental health diagnoses—bipolar disorder, 9 PTSD, dependent disorder, impulsivity—is also reduced because those conditions are not 10 connected to the circumstances of the crime. See, e.g., State v. Styers, 227 Ariz. 186, 189, 11 254 P.3d 1132, 1135 (2011) (“When assessing the weight and quality of a mitigating factor, 12 we take into account how the mitigating factor relates to the commission of the offense.”); 13 State v. Smith, 215 Ariz. 221, 235 ¶ 67, 159 P.3d 531, 545 (2007) (giving less weight to 14 mental health mitigating evidence in light of testimony that defendant “could have 15 controlled his impulses and that he likely knew what he was doing and that it was wrong”); 16 see also Apelt, 878 F.3d at 834 (finding no prejudice where “none of the proffered 17 mitigating evidence excuses Apelt’s callousness, nor does it reduce Apelt’s responsibility 18 for planning and carrying out the murder”). 19 As Respondents note, Andriano had a pattern of calculating and deceitful conduct. 20 (Doc. 22 at 88.) For example, she embezzled money from employers—in one case more 21 than $18,000. (RT 2/14/14, a.m., at 72; RT 2/5/14, a.m., at 120.) In addition, while 22 incarcerated, Andriano was implicated in a fraudulent check-cashing scheme. (RT 2/5/14, 23 a.m., at 121; RT 2/14/14, a.m., at 76.) By presenting mental health experts at sentencing, 24 defense counsel may well have opened the door to such damaging rebuttal testimony. See 25 Atwood v. Ryan, 870 F.3d 1033, 1063 (9th Cir. 2017) (finding counsel “reasonably 26 concluded that adopting a mental health defense would open the door to rebuttal testimony. 27 . . .” and “reasonably focused his efforts on developing other areas of mitigation, such as 28 Atwood’s drug use and his good family background”); Williams v. Woodford, 384 F.3d

- 73 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 74 of 143

1 567, 616–19 (9th Cir. 2004) (finding no ineffective assistance of counsel where mitigating 2 evidence was not especially helpful and would have opened the door to evidence of 3 defendant’s gang activities). In fact, Patterson was able to convince the trial court to limit 4 the penalty-phase rebuttal testimony of the State’s expert, Dr. Bayless, so that evidence of 5 Andriano’s conduct in stealing from an employer was not admitted, nor were opinions 6 Bayless arrived at through his testing of Andriano. (See RT 12/14/03 at 5–33.) 7 In addition, as shown by the testimony of Drs. Pitt and Amin, any expert testimony 8 offered by Andriano would have been subjected to rebuttal testimony by the State’s 9 experts. Counsel could reasonably wish to avoid turning sentencing into a “battle of the 10 experts” in which Andriano might wind up on the “losing side.” Bonin, 59 F.3d at 836; see 11 Pinholster, 563 U.S. at 201 (“If Pinholster had called Dr. Woods to testify consistently 12 with his psychiatric report, Pinholster would have opened the door to rebuttal by a state 13 expert.”); Atwood, 870 F.3d at 1063 (“We have held that counsel’s decision not to pursue 14 a mental health defense is a reasonable strategic decision under Strickland where it avoided 15 the introduction of ‘dueling mental health experts,’ evidence of the petitioner’s ‘past acts 16 of sexual abuse as rebuttal evidence,’ and ‘details of the crime.’”) (quoting Elmore v. 17 Sinclair, 799 F.3d 1238, 1246, 1251 (9th Cir. 2015)). 18 Finally, although counsel did not present a mitigation case based on expert mental 19 health evidence, the testimony from employees of the Maricopa County Jail psychiatric 20 unit informed the jury that Andriano suffered from depression and anxiety and attempted 21 suicide. Those diagnoses went unrebutted. 22 Weighing the totality of the mitigating evidence against the evidence presented at 23 sentencing, Wiggins, 539 U.S. at 534, the Court finds that there was not a reasonable 24 probability of a different outcome if counsel had presented a mitigation case premised on 25 expert opinions that Andriano suffered from bipolar disorder, PTSD, and dependent 26 disorder. The “magnitude of the discrepancy between what counsel did investigate and 27 present and what counsel could have investigated and presented,” Stankewitz, 365 F.3d at 28 716, is not so great as to undermine confidence in the sentencing outcome, Richter, 562

- 74 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 75 of 143

1 U.S. at 104. Even if presentation of the omitted mental health evidence would have resulted 2 in a different sentencing profile, see Strickland, 466 U.S. at 695, prejudice is not 3 established. See Apelt, 878 F.3d at 833 (finding omission of significant evidence of 4 childhood mental, physical, and sexual abuse was not sufficient to establish prejudice 5 where petitioner’s murder of his wife was “premeditated and calculated”). 6 Andriano cites Porter v. McCollum, 558 U.S. 30, 40 (2009), Wiggins, 539 U.S. at 7 514, 537–38, and Williams (Terry), 529 U.S. at 398, as cases where prejudice resulted from 8 omitted mitigating evidence. (Doc. 17 at 42–43.) The mental health evidence omitted from 9 Andriano’s sentencing does not approach the severity of the mitigating circumstances 10 counsel failed to present in those cases. 11 In Porter, the omitted evidence included the fact that Porter had been abused as a 12 child by his violent father, who once shot at him and who beat his mother in front of Porter; 13 attended classes for “slow learners”; had brain damage and cognitive defects; and was a 14 decorated veteran who served on the front lines in two horrific battles of the Korean War 15 and suffered from PTSD. 558 U.S. at 33–36. In Wiggins, counsel failed to present evidence 16 that Wiggins suffered consistent abuse during the first six years of his life, was the victim 17 of “physical torment, sexual molestation, and repeated rape during his subsequent years in 18 foster care,” was homeless for portions of his life, and was deemed to have diminished 19 mental capacities. 539 U.S. at 535. In Williams, counsel “failed to conduct an investigation 20 that would have uncovered extensive records graphically describing Williams’s 21 nightmarish childhood. . . .” 529 U.S. at 395. Counsel thus failed to present evidence that 22 Williams had been committed at age 11, suffered dramatic mistreatment and abuse during 23 his early childhood, was “borderline mentally retarded,” had suffered numerous head 24 injuries, and might have organic mental impairments. Id. at 370–71. 25 These cases do not support a finding that Andriano, an educated 30-year-old with 26 no history of mental health treatment who committed a cold and calculated murder, was 27 prejudiced by counsel’s failure to present evidence that she suffered from bipolar disorder, 28 PTSD, and dependent disorder, with a tendency to act impulsively in stressful situations.

- 75 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 76 of 143

1 See Rhoades v. Henry, 638 F.3d 1027, 1052 (9th Cir. 2011) (finding no prejudice where 2 evidence did not show petitioner was “abandoned or mistreated, placed within the state’s 3 custody, or institutionalized”); see also Apelt, 878 F.3d at 834 (“At the age of 25, Apelt 4 concocted and carried out a calculated plan to marry Cindy, to have her pay for her own 5 life insurance, and then, as soon as the insurance premium was paid, to viciously and 6 cruelly murder her”—there was no reasonable likelihood that further mitigating evidence 7 would have affected his sentence). 8 Under de novo review Andriano has failed to meet her burden with respect to either 9 prong of Strickland. 10 4. Conclusion 11 Andriano has not satisfied her “heavy burden of proving that counsel’s assistance 12 was neither reasonable nor the result of sound trial strategy.” Murtishaw, 255 F.3d at 939. 13 She has likewise failed to bear “the highly demanding and heavy burden [of] establishing 14 actual prejudice,” Allen, 395 F.3d at 1000, by demonstrating there was a reasonable 15 probability of life sentence if counsel had presented mitigating evidence about her mental 16 health. 17 Applying either AEDPA deference or under de novo review, Andriano has failed to 18 demonstrate that she is entitled to relief on her claim that counsel performed ineffectively 19 at sentencing. Claim 3(A) is denied. 20 Claim 3(B) 21 Andriano alleges that trial counsel performed ineffectively by failing to object to 22 the following jury instruction, given during the penalty phase of Andriano’s trial: 23 If your verdict is that the Defendant should be sentenced to death, the 24 Defendant will be sentenced to death. If your verdict is that the Defendant should be sentenced to life, the Defendant will not be sentenced to death and 25 the Court will sentence the Defendant to either life without parole until 25 26 calendar years in prison are served; or “natural life,” which means the Defendant would never be released from prison. 27 28 (ROA 419 at 11.)

- 76 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 77 of 143

1 Relying on Lynch v. Arizona, 136 S. Ct. 1818 (2016) (per curiam), Andriano argues 2 that counsel should have objected to the erroneous instruction that she could be sentenced 3 to life with the possibility of parole. (Doc. 17 at 84–87.) Andriano concedes that she failed 4 to raise this ineffectiveness claim in state court. (Id. at 84.) Therefore, it is procedurally 5 defaulted. Martinez does not provide cause to excuse the procedural default because, as set 6 forth below, the claim is plainly meritless. 7 In Simmons v. South Carolina, 512 U.S. 154 (1994), the Supreme Court held that 8 when a defendant’s future dangerousness is at issue and state law prohibits her release on 9 parole, she has a due-process right to inform the jurors of her parole ineligibility. 10 Until 2012, Arizona law permitted imposition of a parole-eligible life sentence for 11 defendants convicted of first-degree murder. See A.R.S. § 13–703(A)(2000), renumbered 12 as A.R.S. § 13–751(A). In 1994, however, Arizona effectively abolished parole for all 13 inmates convicted of felonies. See A.R.S. § 41–1604.09(I). Accordingly, at the time of 14 Andriano’s sentencing, defendants facing death sentences were statutorily eligible to 15 receive life-with-parole sentences but, as a practical matter, could not be paroled. 16 At the time of Andriano’s trial, the Arizona Supreme Court had not considered 17 Simmons’ applicability to Arizona’s capital jury-sentencing process in light of § 41– 18 1604.09(I). In 2008, however, the court rejected an argument that Simmons required a trial 19 court to “presentence” a defendant by deciding before trial whether it would impose a 20 parole-eligible life sentence and instruct the jury accordingly. State v. Cruz, 218 Ariz. 149, 21 160,181 P.3d 196, 207 (2008). The court reasoned that Simmons did not require reversal 22 because “[n]o state law would have prohibited [the defendant’s] release on parole after 23 serving twenty-five years, had he been given a life sentence.” Id. (citing A.R.S. § 13– 24 703(A) (2004)). Subsequently, the court reaffirmed its holding that Simmons did not apply 25 in Arizona because a defendant facing a death sentence was eligible to receive a life 26 sentence with the possibility of parole under A.R.S. § 13–751(A). See, e.g., State v. Lynch, 27 238 Ariz. 84, 103–04, 357 P.3d 119, 138–39 (2015), reversed by Lynch, 136 S. Ct. at 1818– 28 20.

- 77 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 78 of 143

1 Twelve years after Andriano’s trial, the United States Supreme Court overruled the 2 Arizona Supreme Court’s precedent, holding that the court had incorrectly interpreted 3 Simmons. Lynch, 136 S. Ct. at 1818–20. The Court concluded, based on § 41–1604.09(I), 4 that an Arizona capital defendant is ineligible for parole within Simmons’s meaning. Id. 5 Therefore, when future dangerousness is at issue, Arizona capital-sentencing juries must 6 be instructed that the defendant is not eligible for parole under Arizona law. 7 Andriano has not met her burden of showing that counsel performed deficiently by 8 failing to object to the instruction. At the time of Andriano’s trial, the Arizona Supreme 9 Court had not yet ruled on Simmons’ applicability. However, as noted, A.R.S. § 13–751(A) 10 expressly provided for a parole-eligible life sentence. Because the Arizona Supreme Court 11 had not yet addressed how Simmons, § 41–1604.09(I), and § 13–751(A) interacted, 12 reasonable counsel could have concluded, as the Arizona Supreme Court did in Cruz and 13 for several years thereafter, that Andriano was in fact parole-eligible and therefore there 14 were no grounds for an objection.32 See Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994) 15 (holding that defense attorney is not ineffective for failing to anticipate a decision in a later 16 case); Brown v. United States, 311 F.3d 875 (8th Cir. 2002) (finding no ineffective 17 assistance based on counsel’s failure to raise an issue that was “unsupported by then- 18 existing precedent. . . . ”). For the same reason there is no support for the proposition that 19 the trial court would have granted an objection to the instruction. 20 To support her claim that she was prejudiced by counsel’s failure to object to the 21 instruction, Andriano cites juror declarations submitted with her PCR petition. (Doc. 17 at 22 86.) The court will not consider this evidence. 23 As discussed in its order denying evidentiary development (Doc. 68 at 28), juror 24 testimony cannot be used to impeach a verdict unless “extrinsic influence or relationships 25 have tainted the deliberations.” Tanner v. United States, 483 U.S. 107, 120 (1987). Rule 26 606(b)(1) of the Federal Rules of Evidence prohibits juror testimony “about any statement 27 28 32 Andriano acknowledges as much when she argues in Claim 5 that raising a Simmons claim would have been futile prior to Lynch. (Doc. 42 at 64.)

- 78 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 79 of 143

1 made or incident that occurred during the jury’s deliberations; the effect of anything on 2 that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict 3 or indictment.” Fed. R. Evid. 606(b)(1). “The court may not receive a juror’s affidavit or 4 evidence of a juror’s statement on these matters.” Id. There are limited exceptions to this 5 Rule, Fed. R. Evid. 606(b)(2), but they do not apply here. 6 Andriano contends that the Court may consider the declarations because they are 7 offered in support of her ineffective assistance of counsel claim. (Doc. 17 at 86.) 8 Courts have rejected this argument. See Brown v. United States, 720 F.3d 1316, 9 1337 (11th Cir. 2013) (finding that juror’s affidavit, swearing that additional mitigation 10 evidence gathered during the postconviction process might have had an impact on the 11 jury’s penalty-phase deliberations, was not competent evidence); Hoffner v. Bradshaw, 622 12 F.3d 487, 501 (6th Cir. 2010); Garza v. Ryan, No. CV-14-01901-PHX-SRB, 2017 WL 13 1152814, at *15 (D. Ariz. Mar. 28, 2017) (“Juror affidavits may not be considered under 14 Rule 606(b) in support of ineffective assistance of counsel claims.”). 15 The proffered declarations concern the jurors’ deliberative process and the effect of 16 the evidence on their votes. Therefore, they may not be considered under Rule 606(b). See 17 Jones v. Ryan, No. CV-01-00384-PHX-SRB, 2016 WL 3269714, at *2 (D. Ariz. June 15, 18 2016); Smith v. Schriro, No. CV-03-1810-PHX-SRB, 2006 WL 726913, at *22–23 (D. 19 Ariz. Mar. 21, 2006). 20 The court finds plainly meritless the claim that trial counsel performed ineffectively 21 by failing to object to the jury instruction at issue. Therefore, there was not a reasonable 22 probability of a different outcome in the PCR proceedings if PCR counsel had raised the 23 underlying claim. Because PCR counsel did not perform ineffectively, Andriano cannot 24 establish cause for the claim’s default. Ramirez, 937 F.3d at 1241; Clabourne, 745 F.3d at 25 377. Claim 3(B) is therefore denied as procedurally defaulted and barred from federal 26 review. 27 CLAIM 5 28 Citing Lynch, 136 S. Ct. 1818, Andriano alleges that her due process rights were

- 79 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 80 of 143

1 violated when the jury was incorrectly instructed that if given a life sentence she could be 2 eligible for parole. (Doc. 17 at 102.) Andriano failed to raise this claim on direct appeal. 3 She argues that its default is excused by the ineffective performance of appellate and PCR 4 counsel. (Doc. 17 at 102.) These arguments fail. Under Martinez, the ineffective assistance 5 of PCR counsel excuses only claims of ineffective assistance of trial counsel, not claims of 6 trial error. See Pizzuto, 783 F.3d at 1177; Hunton, 732 F.3d at 1126–27. Appellate 7 counsel’s alleged ineffectiveness cannot constitute cause because that claim is itself 8 procedurally defaulted and Andriano has not excused the default. See Edwards, 529 U.S. 9 at 452 (“‘[A] claim of ineffective assistance’ . . . generally must ‘be presented to the state 10 courts as an independent claim before it may be used to establish cause for a procedural 11 default.’”) (quoting Murray, 477 U.S. at 489). 12 Andriano next argues that her failure to exhaust this claim is excused pursuant to 28 13 U.S.C. § 2254(b)(1)(B). (Doc. 17 at 102.) Under § 2254(b)(1)(B), excuse from exhaustion 14 is available when either “(i) there is an absence of available State corrective process; or (ii) 15 circumstances exist that render such process ineffective to protect the rights of the 16 applicant.” In her reply brief, Andriano argues there was no available state corrective 17 process because it would have been futile to raise this claim in Arizona courts before the 18 Lynch decision in 2016. (Doc. 42 at 64.) 19 The Supreme Court has rejected the futility doctrine. See Engle v. Isaac, 456 U.S. 20 107, 130 (1982). “If a defendant perceives a constitutional claim and believes it may find 21 favor in the federal courts, he may not bypass the state courts simply because he thinks 22 they will be unsympathetic to the claim. Even a state court that has previously rejected a 23 constitutional argument may decide, upon reflection, that the contention is valid.” Id.; see 24 Roberts v. Arave, 847 F.2d 528, 530 (1988) (“[T]he apparent futility of presenting claims 25 to state courts does not constitute cause for procedural default.”); Parker v. Kelchner, 429 26 F.3d 58, 63 (3rd Cir. 2005) (“Our sister Circuits that have considered the issue have 27 similarly concluded that the exhaustion requirement is not excused merely because a 28 petitioner’s claim will likely be denied on the merits in state court.”).

- 80 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 81 of 143

1 The default of this claim is not excused under § 2254(b)(1)(B). 2 In her reply brief, Andriano indicates that she reserves the right to seek a stay and 3 return to state court to exhaust this claim, arguing that she has an available avenue for relief 4 in Rule 32.1(g) of the Arizona Rules of Criminal Procedure. (Doc. 42 at 63.) Respondents 5 contend that Lynch does not represent a significant change in the law for purposes of Rule 6 32.1(g). (Doc. 22 at 107.) The Court agrees. 7 Rule 32.1(g) provides that a defendant may file a petition for relief on the grounds 8 that “[t]here has been a significant change in the law that if determined to apply to 9 defendant’s case would probably overturn the defendant’s conviction or sentence.” Arizona 10 courts have characterized a significant change in the law as a “transformative event,” State 11 v. Shrum, 220 Ariz. 115, 118, 203 P.3d 1175, 1178 (2009), and a “clear break” or “sharp 12 break” with the past. State v. Slemmer, 170 Ariz. 174, 182, 823 P.2d 41, 49 (1991). “The 13 archetype of such a change occurs when an appellate court overrules previously binding 14 case law.” Shrum, 220 Ariz. at 118, 203 P.3d at 1178. A statutory or constitutional 15 amendment representing a definite break from prior law can also constitute a significant 16 change in the law. Id. at 119, 203 P.3d at 1179. 17 Lynch applied Simmons to a capital sentencing in Arizona. In Lynch, the defendant 18 was convicted of murder and other crimes. 136 S. Ct. at 1818. Before the penalty phase of 19 his trial began, the state successfully moved to prevent his counsel from informing the jury 20 that, if the defendant did not receive a death sentence, he would be sentenced to life in 21 prison without possibility of parole. Id. at 1819. The jury sentenced him to death. Id. On 22 appeal, Lynch argued that because the state had made his future dangerousness an issue in 23 arguing for the death penalty, the jury should have been given a Simmons instruction 24 stating that the only non-capital sentence he could receive under Arizona law was life 25 imprisonment without parole. Id. The Arizona Supreme Court affirmed, holding that the 26 failure to give the Simmons instruction was not error because Lynch could have received a 27 life sentence that would have made him eligible for release after 25 years—even though 28 any such release would have required executive clemency. Id. at 1820.

- 81 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 82 of 143

1 The United States Supreme Court reversed. Id. The Court reiterated that under 2 Simmons and its progeny, “where a capital defendant’s future dangerousness is at issue, 3 and the only sentencing alternative to death available to the jury is life imprisonment 4 without possibility of parole,” the Due Process Clause “entitles the defendant to inform the 5 jury of [his] parole ineligibility, either by a jury instruction or in arguments by counsel.” 6 Id. at 1818 (internal quotation marks omitted). 7 Lynch does not represent a significant change in the law. It simply applies existing 8 law to an Arizona case. It is not a transformative event of the kind described by Arizona 9 courts in interpreting Rule 32.1(g). In Shrum, for example, the Arizona Supreme Court 10 cited Ring v. Arizona, 536 U.S. 584 (2002), as a “significant change in the law.” 220 Ariz. 11 at 119, 203 P.3d at 1179. Ring “expressly overruled” Walton v. Arizona, 497 U.S. 639 12 (1990), overruled by Ring v. Arizona, 536 U.S. 584 (2002). As the Arizona Supreme Court 13 explained, “before Ring, a criminal defendant was foreclosed by Walton from arguing that 14 he had a right to trial by jury on capital aggravating factors; Ring transformed existing 15 Sixth Amendment law to provide for just such a right.” Shrum, 220 Ariz. at 119, 203 P.3d 16 at 1179. 17 In contrast to the holding in Ring, which expressly overruled precedent and 18 invalidated Arizona’s capital sentencing scheme, Lynch did not transform Arizona law. 19 The holding does not constitute a significant change in law for purposes of Rule 32.1(g). 20 See Boggs v. Ryan, No. CV-14-02165-PHX-GMS, 2017 WL 67522, at *3 (D. Ariz. Jan. 6, 21 2017); Garza, No. CV-14-01901-PHX-SRB, 2017 WL 105983, at *3; Garcia v. Ryan, No. 22 CV-15-00025-PHX-DGC, 2017 WL 1550419, at *3 (D. Ariz. May 1, 2017).33 23 Respondents also argue, correctly, that Lynch would not apply retroactively. Lynch 24 applies Simmons to Arizona capital sentencing. In O’Dell v. Netherland, the Supreme Court 25 rejected the argument that Simmons represented a “watershed” rule of criminal procedure 26 27 33 On June 2, 2020, the Arizona Supreme Court held oral argument in State v. Cruz 28 to consider whether Lynch represented a significant change in the law that applies retroactively. See Order, State v. Cruz, No. CR-17-0567-PC (Ariz. Sup. Ct. Apr. 1, 2020).

- 82 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 83 of 143

1 that applied retroactively.34 521 U.S. 151, 167 (1997). Like Simmons, Lynch is procedural 2 and non-retroactive. See, e.g., Johnson v. Ryan, No. CV-18-00889-PHX-DWL, 2019 WL 3 1227179, at *2 (D. Ariz. Mar. 15, 2019) (finding Lynch non-retroactive because it “didn’t 4 announce a new rule of substantive law and the procedural rule it applied doesn’t amount 5 to a ‘watershed’ rule of criminal procedure” and noting that since 1989 the Supreme Court 6 has not found that any rule falls within the “watershed” exception); Armstrong v. Ryan, 7 No. CV-15-00358-TUC-RM, 2017 WL 3970327, at *2. Therefore, Andriano would not be 8 entitled to retroactive application of Lynch and her claim fails to meet the exception to 9 preclusion set out in Rule 32.1(g). 10 Accordingly, Claim 5 is denied as procedurally defaulted and barred from federal 11 review. 12 CLAIM 7 13 Andriano alleges that her rights under the Sixth and Fourteenth Amendments were 14 violated by the trial court’s failure to instruct the jury that it had to find beyond a reasonable 15 doubt that the aggravating factor outweighed the mitigating circumstances. (Doc. 17 at 16 110.) 17 On direct appeal, Andriano alleged that “Arizona’s death penalty scheme is 18 unconstitutional because it does not require the sentencer to find beyond a reasonable doubt 19 that the aggravating circumstances outweigh the accumulated mitigating circumstances, in 20 violation of the Fifth, Eighth, and Fourteenth Amendments. . . .” (Opening Brief at 131.) 21 In Claim 7 of her habeas petition, by contrast, Andriano alleges instructional error in 22 violation of the Sixth and Fourteenth Amendments. (Doc. 17 at 110–16.) Andriano 23 therefore did not fairly present her allegation of instructional error in state court. Fair 24 presentation requires a description of the federal legal theory on which a claim is based. 25 26 34 In determining whether to apply new constitutional legal principles retroactively, Arizona courts apply the federal retroactivity standard announced in Teague v. Lane, 489 27 U.S. 288 (1989). See Slemmer, 170 Ariz. at 182, 823 P.2d at 49. As relevant here, Teague holds that a new constitutional principle is to be applied retroactively if it is a “watershed 28 rule[ ] of criminal procedure” that “implicate[s] the fundamental fairness of the trial.” Teague, 489 U.S. at 311–12.

- 83 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 84 of 143

1 See Anderson v. Harless, 459 U.S. 4, 6 (1982) (“It is not enough that all the facts necessary 2 to support the federal claim were before the state courts or that a somewhat similar state- 3 law claim was made.”) (quotations omitted). Because Andriano is precluded from 4 obtaining relief in state court, Ariz. R. Crim. P. 32.1(d)–(h); 32.2(a) & (b), Claim 7 is 5 procedurally defaulted. 6 Andriano argues that the claim’s default is excused by the ineffective assistance of 7 PCR and appellate counsel. (Doc. 42 at 77.) These arguments fail. Under Martinez, the 8 ineffective assistance of PCR counsel excuses only claims of ineffective assistance of trial 9 counsel, not claims of trial error. See Pizzuto, 783 F.3d at 1177; Hunton, 732 F.3d at 1126– 10 27. Appellate counsel’s alleged ineffectiveness cannot constitute cause because that claim 11 is itself procedurally defaulted and Andriano has not excused the default. See Edwards, 12 529 U.S. at 452. 13 In addition, the Arizona Supreme Court’s decision rejecting Andriano’s challenge 14 to the statute, Andriano, 215 Ariz. at 513, 161 P.3d at 556, was neither contrary to nor an 15 unreasonable application of clearly established federal law. The United States Supreme 16 Court has “never held that a specific method for balancing mitigating and aggravating 17 factors in a capital sentencing proceeding is constitutionally required.” Kansas v. Marsh, 18 548 U.S. 163, 175 (2006) (quotations omitted). 19 Andriano’s reliance on Hurst v. Florida, 136 S. Ct. 616 (2016), is misplaced. 20 In Hurst, 136 S. Ct. 616, the Supreme Court held that Florida’s capital sentencing scheme 21 violated Ring. Under the Florida scheme, a jury rendered an advisory verdict while the 22 judge made the ultimate factual determinations necessary to sentence a defendant to 23 death. Id. at 621–22. The Court held that this procedure was invalid because it “does not 24 require the jury to make the critical findings necessary to impose the death penalty.” Id. at 25 622. The Supreme Court simply applied Ring to Florida’s capital sentencing statutes. 26 Hurst does not, as Andriano argues, hold that a jury is required to find beyond a 27 reasonable doubt that the aggravating factors outweigh the mitigating circumstances. Hurst 28 held only that Florida’s scheme, in which the jury rendered an advisory sentence but the

- 84 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 85 of 143

1 judge made the findings regarding aggravating and mitigating factors, violated the Sixth 2 Amendment. Hurst, 136 S. Ct. at 620. 3 Hurst did not address the process of weighing aggravating and mitigating 4 circumstances. Indeed, the Supreme Court has held that the sentencer may be given 5 “unbridled discretion in determining whether the death penalty should be imposed after it 6 has found that the defendant is a member of the class made eligible for that penalty.” Zant 7 v. Stephens, 462 U.S. 862, 875 (1983); see Tuilaepa v. California, 512 U.S. 967, 979–80 8 (1994). In Zant, the Court explained that “specific standards for balancing aggravating 9 against mitigating circumstances are not constitutionally required.” Id. at 875 n.13; see 10 Franklin v. Lynaugh, 487 U.S. 164, 179 (1988) (“[W]e have never held that a specific 11 method for balancing mitigating and aggravating factors in a capital sentencing proceeding 12 is constitutionally required.”). 13 In Arizona, in accordance with Ring and Hurst, the jury makes factual findings 14 regarding the aggravating factors and mitigating circumstances to determine the 15 appropriate sentence. That is sufficient to satisfy the Constitution. The trial court did not 16 err in failing to instruct the jury that it must find the aggravating factors outweigh the 17 mitigating circumstances by beyond a reasonable doubt. 18 Claim 7 is both meritless and procedurally defaulted and barred from federal review. 19 CLAIM 8 20 Andriano alleges that the trial court’s failure to instruct the jury on the lesser- 21 included offenses of second-degree murder and manslaughter violated her rights under the 22 Sixth, Eighth, and Fourteenth Amendments. (Doc. 17 at 11.) 23 A. Background 24 Andriano did not request lesser-included instructions at trial. See Andriano, 215 25 Ariz. at 504, 161 P.3d at 547. On direct appeal, she alleged that the trial court’s failure to 26 give the instructions sua sponte denied her right to a fair trial. (Opening Brief at 49–53.) 27 The Arizona Supreme Court rejected this claim. First, citing Beck v. Alabama, 447 U.S. 28 625, 627, 638 (1980), the court explained that “[i]n a capital case, it is fundamental error

- 85 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 86 of 143

1 for the trial court to fail to give a lesser-included offense instruction if one is supported by 2 the evidence.” Andriano, 215 Ariz. at 504, 161 P.3d at 547. The court then addressed 3 Andriano’s arguments that she was entitled to lesser-included-offense instructions: 4 As to second degree murder, Andriano contends on appeal that because 5 sodium azide poisoning did not cause Joe’s death, a reasonable jury could have found that she abandoned her plan to poison Joe. Abandonment is 6 shown, she argues, by her summoning Chris to the apartment and her call to 7 911. She maintains that a new sequence of events began that led to an intentional or knowing—but not premeditated—death. As to manslaughter, 8 Andriano contends that the evidence supports a conclusion that Joe provoked 9 her when he reached for a knife, and she then killed him during a sudden quarrel or in the heat of passion. 10 11 Andriano did not argue either of these theories at trial, however, and the evidence presented does not support either theory. Andriano testified that she 12 was attempting to assist Joe in committing suicide when they got scared and decided to call for help. She claimed that after 911 was called and Chris left 13 the apartment to meet the paramedics, Joe decided that he wanted to follow 14 through with the suicide. She testified that, after the paramedics left, she admitted to Joe that she had an affair. Joe then became violent and tried to 15 choke her with a phone cord, but she was able to reach a knife, cut the cord, 16 and free herself. When she put the knife down, Joe bent down to pick it up, so she hit him with the bar stool until he stopped moving. Ultimately, Joe 17 picked up the knife and said he was going to kill himself. Andriano tried to 18 stop him, but her hand slipped off the knife. Suddenly there was blood everywhere, but she had not stabbed Joe. 19 20 Despite Andriano’s testimony that Joe had killed himself, in closing argument, defense counsel argued that Andriano was a domestic violence 21 victim who acted in self-defense after an assisted suicide attempt. The jury 22 was instructed on self-defense and told that if it found Andriano to be a domestic violence victim, “the state of mind of a reasonable person . . . shall 23 be determined from the perspective of a reasonable person who has been a 24 victim of those past acts of domestic violence.”

25 We held in State v. Celaya that “where the sole defense is self-defense so that the evidence requires either conviction or acquittal, any instruction on any 26 other grade would be impermissible.” 135 Ariz. 248, 255, 660 P.2d 849, 856 27 (1983); see also State v. Wall, 212 Ariz. 1, 6, ¶ 29, 126 P.3d 148, 153 (2006) (noting that when defendant asserts an “all-or-nothing” defense, the record 28 usually will not support the giving of a lesser-included offense

- 86 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 87 of 143

1 instruction); State v. Jones, 109 Ariz. 80, 81–82, 505 P.2d 251, 252–53 2 (1973) (holding that lesser-included offense instructions were not required where evidence at trial and defendant’s self-defense theory presented an 3 “either-or” situation requiring either first degree murder conviction or acquittal). We conclude that the evidence in this case did not support either 4 a second degree murder or manslaughter instruction and that the trial court 5 therefore did not commit fundamental error in failing to give either instruction. 6 7 Id. at 504–05, 161 P.3d at 547–48.

8 B. Analysis

9 Andriano alleges that the Arizona Supreme Court’s decision was contrary to clearly

10 established federal law, see 28 U.S.C. § 2254(d)(1), because the United States Supreme

11 Court has held that a self-defense instruction “is not necessarily incompatible” with a

12 lesser-included offense instruction. (Doc. 17 at 117–18.) She also argues that the court

13 unreasonably applied federal law and unreasonably determined the facts by finding that the

14 evidence did not support lesser-included offense instructions. (Id.) Neither argument is

15 persuasive.

16 The Arizona Supreme Court correctly based its decision on Beck, 447 U.S. 625. In

17 Beck, the Court held that the death penalty may not be imposed if the jury was not permitted

18 to consider a lesser-included, non-capital offense. Id. at 627. However, due process requires

19 a lesser-included offense instruction to be given only when the evidence warrants it. Id.;

20 see Hopper v. Evans, 456 U.S. 605, 611 (1982). The state and federal rule are the same: a

21 lesser included offense instruction should be given if the evidence would permit a jury

22 rationally to find a defendant guilty of the lesser offense and acquit him of the greater.

23 Murray (Roger) v. Schriro, 882 F.3d 778, 813 (9th Cir. 2018) (citing State v. Krone, 182

24 Ariz. 319, 323, 897 P.2d 621, 625 (1995), and Hopper, 456 U.S. at 612); see Clabourne v.

25 Lewis, 64 F.3d 1373, 1380 (9th Cir. 1995) (noting that it is plain error for the court to fail

26 to give a lesser-included instruction on second-degree murder in a capital case “where the

27 evidence would permit a jury rationally to find [the defendant] guilty of the lesser offense

28 and acquit him of the greater”).

- 87 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 88 of 143

1 Evidence is deemed “sufficient to require a lesser-included offense instruction if 2 two conditions are met. The jury must be able to find (a) that the State failed to prove an 3 element of the greater offense and (b) that the evidence is sufficient to support a conviction 4 on the lesser offense.” State v. Wall, 212 Ariz. 1, 4, 126 P.3d 148, 151 (2006). “It is not 5 enough that, as a theoretical matter, ‘the jury might simply disbelieve the state’s evidence 6 on one element of the crime’ because this ‘would require instructions on all offenses 7 theoretically included’ in every charged offense.” Id. (quotation omitted). “[T]he evidence 8 must be such that a rational juror could conclude that the defendant committed only the 9 lesser offense.” Id. 10 To support her argument that there is no categorial bar on instructions for 11 inconsistent defenses, Andriano cites Stevenson v. United States, 162 U.S. 313, 322–33 12 (1896), and Mathews v. United States, 485 U.S. 58, 63–64 (1988). Those cases stand for 13 the proposition that due process requires instructions on inconsistent defenses where 14 supported by the evidence. In Mathews, the Court held that the defendant was entitled to 15 an instruction on entrapment without requiring him to admit all elements of the crime. 485 16 U.S. at 59–60. In Stevenson, the Court held that the defendant was entitled to instructions 17 on both self-defense and manslaughter. 162 U.S. at 323. 18 Stevenson and Mathews do not hold that a defendant is entitled to an instruction that 19 is not supported by the evidence. In Mathews, the Court held that “a defendant is entitled 20 to an instruction as to any recognized defense for which there exists evidence sufficient for 21 a reasonable jury to find in his favor.” 485 U.S. at 63–64 (emphasis added); Stevenson, 22 162 U.S. at 315, 323; see Taylor v. Withrow, 288 F.3d 846, 853 (6th Cir. 2002) (explaining 23 that a defendant does not have “the right to offer any defense, nor to demand a jury be 24 instructed on any theory”).35 “No due process violation occurs from the failure to give an 25 35 Andriano cites another case, United States v. Scafe, for the proposition that “self- 26 defense and voluntary manslaughter are not always inconsistent.” 822 F.2d 928, 932 (10th Cir 1987). In that case, however, the court determined that the defendant was not entitled 27 to a voluntary manslaughter instruction because the record showed there was “no basis” for such a finding despite “some suggestion of rage or fear as a basis for heat of passion.” 28 Id. at 932–33.

- 88 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 89 of 143

1 instruction on a defense where there was insufficient evidence as a matter of law to support 2 such a charge.” Lakin v. Stine, 80 F. App’x. 368, 374 (6th Cir. June 12, 2003). 3 Here, the Arizona Supreme Court found that Andriano presented an all-or-nothing 4 self-defense theory and that there was insufficient evidence to support instructions on the 5 lesser-included offenses of second-degree murder and manslaughter. Andriano, 215 Ariz. 6 at 504–05, 161 P.3d at 547–48. These findings are entitled to a presumption of correctness 7 under 28 U.S.C. § 2254(e)(1). See Mitzel v. Tate, 267 F.3d 524, 537 (6th Cir. 2001) (citing 8 § 2254(e)(1) and explaining “Mathews does not control if we are given no basis upon which 9 to overcome the state court’s factual findings that there was not sufficient evidence to 10 support the defendant’s theory. . . .”); Dowthitt v. Johnson, 230 F.3d 733, 757–58 (5th Cir. 11 2000) (finding petitioner did not present “clear and convincing evidence” showing he was 12 guilty only of the lesser offenses); Bryson v. Ward, 187 F.3d 1193, 1207 (10th Cir. 1999) 13 (“The state trial and appellate courts determined that the evidence did not support giving 14 these instructions [on second-degree murder and manslaughter] . . . . We afford this factual 15 determination a presumption of correctness under 28 U.S.C. § 2254(e)(1).”). Andriano 16 fails to rebut that presumption. 17 As she did on direct appeal, Andriano argues that the evidence supported the lesser 18 charges because it showed that she abandoned her plan to poison Joe when she called her 19 friend Chris and then 911. (Doc. 17 at 119–122.) According to Andriano, a jury could find 20 that after this “break in the chain of events” she killed Joe without the premeditation 21 required for first-degree murder. (Id.) Specifically, Andriano argues that because Joe was 22 not killed by the poison but died in a fight with her, a jury could reject her theory of self- 23 defense but nevertheless find that premeditation was lacking, and therefore she was entitled 24 to an instruction on second-degree murder.36 (Id. at 120–21.) She also argues that a jury 25 36 A.R.S. § 13–1104(A) provides, in relevant part, “A person commits second degree 26 murder if without premeditation: 1. The person intentionally causes the death of another person . . . ; or 27 2. Knowing that the person’s conduct will cause death or serious physical injury, 28 the person causes the death of another person . . . .”

- 89 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 90 of 143

1 could have found that she was “provoked” by Joe when he attacked her with the knife, and 2 she killed him in a sudden quarrel or the heat of passion, warranting a manslaughter 3 instruction.37 (Id. at 121–22.) 4 The success of Andriano’s arguments depends on whether a rational jury could 5 believe that by calling Chris and then 911, she abandoned her plan to kill Joe and therefore 6 the murder was no longer premeditated. The evidence showed that Andriano never 7 abandoned her plan to kill Joe. Although Andriano did eventually call 911, she did so 8 reluctantly, after being pressured by Chris and after lying to Joe about having already made 9 the call. (RT 9/8/04 at 12–15.) She then lied to the dispatcher about Joe’s condition. (RT 10 10/28/04 at 37.) When the paramedics first arrived, she did not allow them into the 11 apartment, lying to them about Joe dying of cancer and having a do not resuscitate order. 12 (RT 9/8/04 at 37.) By that point, she had already killed Joe. This evidence does not support 13 a finding that she ever abandoned her plan to do so. 14 As the Arizona Supreme Court noted, Andriano’s trial testimony was not consistent 15 with the theories she now offers. Andriano, 215 Ariz. at 594, 161 P.3d at 547. She testified 16 that Joe killed himself with the knife while she tried to stop him, not that she actually killed 17 him or killed him in the heat of passion or a sudden quarrel. (See RT 10/28/04 at 62.) She 18 argued, however, in contrast to her testimony, that she killed Joe in self-defense, and the 19 jury was so instructed. (See RT 11/17/04 at 25, 73–74, 104–06; ROA 364 at 11–14.) The 20 evidence supported neither theory, as the jury’s verdict indicated. 21 Andriano has not met her burden of showing by clear and convincing evidence that 22 the Arizona Supreme Court unreasonably rejected her theory that she abandoned 23 premeditation and was therefore entitled to lesser-included offense instructions. See 28 24 U.S.C. § 2254(e)(1); see also Wood, 558 U.S. at 301 (explaining that a state court’s “factual 25 Under A.R.S. § 13–1103(A)(2), “A person commits manslaughter by . . . 37 26 [c]ommitting second degree murder as prescribed in § 13–1104, subsection A upon a 27 sudden quarrel or heat of passion resulting from adequate provocation by the victim . . . .” 28

- 90 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 91 of 143

1 determination is not unreasonable merely because [a] federal habeas court would have 2 reached a different conclusion in the first instance”); Taylor, 366 F.3d at 1000. 3 Finally, the Court finds that any error was harmless. Ghent v. Woodford, 279 F.3d 4 1121, 1134 (9th Cir. 2002), as amended (Mar. 11, 2002) (“If a Beck violation has 5 occurred, the court must then determine whether the error had a substantial and injurious 6 effect on the jury’s deliberations and verdict.”) (citing Brecht, 507 U.S. at 637); see 7 Beardslee v. Woodford, 358 F.3d 560, 577 (9th Cir. 2004) (“[E]ven if a manslaughter 8 instruction were required under Beck, Beardslee would have to demonstrate that the 9 violation had a substantial and injurious effect. . . .”). The evidence overwhelmingly 10 established, as the jury found beyond a reasonable doubt, that Andriano premeditated 11 Joe’s murder. She researched the poison, purchased it using false information, and 12 administered it to Joe. After she killed Joe she staged the scene to make it appear that a 13 struggle had taken place. As the Arizona Supreme Court concluded, the evidence, 14 including Andriano’s own testimony about how Joe’s death occurred, did not support 15 charges of second-degree murder or manslaughter. 16 The decision of the Arizona Supreme Court was neither contrary to nor an 17 unreasonable application of Beck, see Richter, 562 U.S. at 98, nor was it based on an 18 unreasonable determination of the facts. Andriano was not entitled to lesser-included 19 offense instructions. Claim 8 is denied. 20 CLAIM 9 21 Andriano alleges that the “the trial judge coerced a verdict” at the penalty phase of 22 trial in violation of her Sixth, Eighth, and Fourteenth Amendment Rights. (Doc. 17 at 122.) 23 A. Background 24 During the second day of deliberations following the penalty phase of Andriano’s 25 trial, the jury sent the court a note that read: “If we are unable to reach an [sic] unanimous 26 verdict, what is the procedure that will be followed?” (RT 12/20/04 at 4; ROA 423 at 1; 27 ROA 424.) The court responded: 28

- 91 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 92 of 143

1 It appears from your note that you are at a deadlock in your deliberations. I 2 have some suggestions to help your deliberations, not to force you to reach a verdict. I am merely trying to be responsible [sic] to your apparent need for 3 help. I do not wish or intend to force a verdict. Each juror has a duty to consult with one another, to deliberate with a view to reaching an agreement if it can 4 be done without violence to individual judgment. No juror should surrender 5 his or her honest conviction as to the weight or effect of the evidence solely because of the opinion of other jurors or for the purpose of reaching a verdict. 6 7 However, you may want to identify areas of agreement and disagreement and discuss the law and evidence as they relate to the areas of disagreement. 8 9 If you still disagree, you may wish to tell the attorneys and me which issues, questions, law, or facts you would like us to assist you with. If you decide to 10 follow this suggestion, please write down the issues, questions, law or facts 11 on which we can possibly help. Please give your note to the bailiff. We will then discuss your note and try to help. 12 13 (RT 12/20/04 at 4; ROA 423 at 2.) Defense counsel objected to the court’s instruction, 14 arguing that it did not accurately describe the sentencing process. (RT 12/20/04 at 5.) The 15 jurors returned their verdict of death two days later. (RT 12/22/04 at 5; ROA 426.) 16 Several weeks later, counsel moved for a new penalty-phase hearing, arguing, based 17 on a newspaper report, that a single juror had favored life and the trial court’s instruction 18 had coerced that juror into returning a death verdict. (RT 2/4/05 at 6–8; ROA 444, 444A.) 19 The trial court denied the motion. (ROA 448.) 20 On direct appeal, Andriano argued that the instruction incorrectly described the 21 jurors’ penalty-phase task and thereby coerced their verdict. (Opening Brief at 115–21.) 22 The Arizona Supreme Court rejected the claim: 23 In Lowenfield v. Phelps, the United States Supreme Court addressed whether 24 an impasse instruction given to a capital sentencing jury coerced the death sentence in that case. 484 U.S. 231, 233, 108 S.Ct. 546, 98 L.Ed.2d 568 25 (1988). The Supreme Court held that the instruction did not coerce the jury’s death verdict. Id. at 241, 108 S.Ct. 546. The Court quoted with approval 26 another capital case in which it had opined that jurors must try to reach a 27 verdict: 28

- 92 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 93 of 143

1 The very object of the jury system is to secure unanimity by a 2 comparison of views, and by arguments among the jurors themselves. It certainly cannot be the law that each juror should 3 not listen with deference to the arguments and with a distrust of his own judgment, if he finds a large majority of the jury 4 taking a different view of the case from what he does himself. 5 It cannot be that each juror should go to the jury room with a blind determination that the verdict shall represent his opinion 6 of the case at that moment; or, that he should close his ears to 7 the arguments of men who are equally honest and intelligent as himself. 8 9 Id. at 237, 108 S.Ct. 546 (quoting Allen v. United States, 164 U.S. 492, 501– 02, 17 S.Ct. 154, 41 L.Ed. 528 (1896)). The Court emphasized that “[t]he 10 continuing validity of this Court’s observations in Allen are beyond dispute.” 11 Id.

12 Lowenfield thus makes clear that jurors in capital cases have a duty to 13 deliberate in sentencing proceedings. Arizona’s death penalty sentencing scheme does not alter this duty. While jurors individually determine whether 14 a mitigating circumstance exists, A.R.S. § 13–703(C), the jury must still be 15 unanimous in its decision to impose a death sentence or a life sentence, id. § 13–703.01(H). Therefore, the jurors may be instructed that they have a duty 16 to deliberate in the penalty phase of a capital case. 17 In sum, because the impasse instruction correctly stated the law and was 18 given after an affirmative indication from the jury that it was deadlocked, it cannot be said that the verdict was coerced. 19 Andriano, 215 Ariz. at 508–10, 161 P.3d at 551–53 (footnote omitted). This decision was 20 neither contrary to nor an unreasonable application of clearly established federal law. 21 B. Analysis 22 “Any criminal defendant, and especially any capital defendant, being tried by a jury 23 is entitled to the uncoerced verdict of that body.” Lowenfield, 484 U.S. at 241. Nonetheless, 24 when a jury is deadlocked, “[t]he use of a supplemental charge has long been sanctioned.” 25 Id. at 237 (citing Allen v. United States, 164 U.S. 492 (1896)). Whether the conduct of a 26 trial judge infringed a defendant’s due process right to a fair trial and an impartial jury turns 27 on whether the judge’s actions would be likely to coerce some jurors into relinquishing 28 their views in favor of reaching a unanimous decision. Jimenez v. Myers, 40 F.3d 976, 979

- 93 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 94 of 143

1 (9th Cir. 1993). The trial court’s actions and statements must be evaluated under the totality 2 of the circumstances. Lowenfield, 484 U.S. at 237, 250; see Parker v. Small, 665 F.3d 3 1143, 1147 (9th Cir. 2011). 4 In Lowenfield, the Court reviewed a duty-to-deliberate instruction, or “Allen 5 charge,” given in the penalty phase of a capital case and found that the instruction was not 6 coercive.38 Id. at 237–41. The Court explained that such instructions are appropriate in 7 capital cases, holding that “[t]he State has in a capital sentencing proceeding a strong 8 interest in having the jury ‘express the conscience of the community on the ultimate 9 question of life or death.’” Id. at 238 (quoting Witherspoon v. Illinois, 391 U.S. 510, 519 10 (1968)). The Court continued: 11 Surely if the jury had returned from its deliberations after only one hour and informed the court that it had failed to achieve unanimity on the first ballot, 12 the court would incontestably have had the authority to insist that they 13 deliberate further. This is true even in capital cases such as this one and Allen, even though we are naturally mindful in such cases that the “qualitative 14 difference between death and other penalties calls for a greater degree of 15 reliability when the death sentence is imposed.” Lockett v. Ohio, 438 U.S. 586, 604 (1978). 16 17 18 38 In Lowenfield, the trial court gave the following instruction (in part): 19 When you enter the jury room it is your duty to consult with one another to 20 consider each other’s views and to discuss the evidence with the objective of reaching a just verdict if you can do so without violence to that individual 21 judgment. 22 Each of you must decide the case for yourself but only after discussion and 23 impartial consideration of the case with your fellow jurors. You are not 24 advocates for one side or the other. Do not hesitate to reexamine your own views and to change your opinion if you are convinced you are wrong but do 25 not surrender your honest belief as to the weight and effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose of 26 returning a verdict. 27 484 U.S. at 235. 28

- 94 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 95 of 143

1 Id. 238–39. 2 Nonetheless, Andriano argues that because the decision whether to impose death is 3 an individual, moral one, a duty-to-deliberate instruction is never appropriate in the penalty 4 phase of a capital trial. (Doc. 17 at 124–25.) That argument, of course, is foreclosed by 5 Lowenfield itself, which permits such instructions in capital cases. 6 Andriano next contends that, even if a penalty-phase duty-to-deliberate instruction 7 is legally permissible, it was coercive under the circumstances of her case. She first argues 8 that there was a coercive element in the instruction because the court did not answer the 9 jury’s question. (Doc. 17 at 126.) That argument is unpersuasive. As the Arizona Supreme 10 Court found, it was reasonable for the trial court to interpret the question as suggesting that 11 the jury had reached an impasse. Andriano, 215 Ariz. at 509, 161 P.3d at 552. In the context 12 of the instruction as a whole, the fact that the court did not indicate what the outcome would 13 be if unanimity could not be reached did not, as Andriano argues, suggest “that a 14 unanimous verdict was required and the only acceptable result.” (Doc. 17 at 126.) 15 In further support of her argument, Andriano cites Smalls v. Batista, 191 F.3d 272 16 (2d Cir. 1999), and Tucker v. Catoe, 221 F.3d 600 (4th Cir. 2000). These cases do not 17 support her position. 18 In Smalls, the trial court gave an Allen charge after learning there was an eleven to 19 one split in the jury. 191 F.3d at 281. The Second Circuit found that the judge’s instructions 20 were coercive because on three occasions during the course of deliberations he had 21 reminded the jurors that they had a duty and responsibility to convince other jurors that 22 their views were correct and because he failed to balance this charge with cautionary 23 language that would remind the minority jurors not to surrender their conscientiously held 24 beliefs merely for the purpose of obtaining a unanimous verdict. Id. at 282. 25 In Tucker, the Fourth Circuit, citing Lowenfield, noted the following factors as 26 relevant in reviewing an Allen charge for coerciveness: 27 the charge in its entirety and in context; suggestions or threats that the jury 28 would be kept until unanimity is reached; suggestions or commands that the jury must agree; indications that the trial court knew the numerical division

- 95 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 96 of 143

1 of the jury; indications that the charge was directed at the minority; the length 2 of deliberations following the charge; the total length of deliberations; whether the jury requested additional instruction; and other indications of 3 coercion. 4 Tucker, 221 F.3d at 611. 5 Applying these factors, the Fourth Circuit found that the instruction in Tucker was 6 coercive because the judge knew how the jury was divided, first ten to two and ultimately 7 eleven to one in favor of a death sentence. Id. Knowing there was a single holdout, the 8 court instructed the jury that, “It was never intended that the verdict of the jury should be 9 the view of any one person.” Id. The trial court further stated that “the verdict of the jury 10 is the collective reasoning of all of the men and women serving on the panel.” Id. In finding 11 the instruction coercive, the Fourth Circuit explained that: 12 The charge singled out the minority juror and emphasized the need for unanimity, without instructing that one, lone holdout was permitted under 13 the law. . . . This emphasis on the collective, at the expense of the individual 14 determination, was, in the context in which this charge was given, unduly coercive. 15 16 Id.

17 The trial court qualified its charge with the instruction that “no juror is expected to

18 give up an opinion based on reasoning satisfactory to himself or herself merely for the

19 purpose of being in agreement with others,” but the Fourth Circuit found that “this line did

20 not sufficiently balance the charge.” Id. at 612. Instead, the “instruction merely gave one

21 reason why a juror may decline to change his vote, and in the circumstances in which it

22 was administered, the overall charge sought to eliminate the possibility of a single holdout

23 juror preventing a unanimous verdict.” Id.

24 The Fourth Circuit also noted that “the jury deliberated for a little more than one-

25 and-a-half hours following the Allen charge (out of ten and one half hours of total

26 deliberations), before unanimously recommending death.” Id. Up to that point the jury was

27 “hopelessly deadlocked at 11–1,” according to the note it sent the court. Id. The Fourth

- 96 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 97 of 143

1 Circuit found this dynamic “telling because (1) the expression of deadlock was emphatic 2 and unequivocal; and (2) the note did not request further instruction.” Id. 3 The Fourth Circuit concluded that “even with the 20–20 hindsight of appellate 4 review, we must concede that this is a close issue.” Id. Nonetheless, the court found that 5 under the totality of the circumstances the Allen charge was coercive. Id. “Put simply, the 6 import of the charge was that the single juror (whom every member of the jury knew was 7 holding out) should not prevent the majority from imposing the death penalty.” Id. 8 Applying the reasoning in Lowenfield, Smalls, and Tucker, the Court concludes that 9 the duty-to-deliberate charge in Andriano’s case was not coercive. Although Andriano 10 asserts that there was only “one juror in the minority” (Doc. 17 at 128), there is no evidence 11 in the record that the court was aware of the numerical split until a juror disclosed it after 12 the verdict, and the court did not enquire into the jury’s numerical division. 13 Even if the court had been aware of the split, there was nothing in the instruction 14 suggesting that the “single juror . . . should not prevent the majority from imposing the 15 death penalty.” Tucker, 221 F.3d at 612. In contrast to Tucker, there was no language 16 focusing on the minority juror or jurors, requiring them to listen to the majority jurors, or 17 emphasizing the need for a collective decision. See id. at 611. 18 Nor did the court in Andriano’s case provide an “unbalanced” instruction or suggest 19 that the jury was required to reach a verdict. To the contrary, the court included cautionary 20 language reminding minority jurors not to surrender their conscientiously held beliefs for 21 the purpose of obtaining a unanimous verdict. See Smalls, 191 F.3d at 282. Thus the court 22 informed the jurors that its instruction was not intended “to force you to reach a verdict” 23 and reminded jurors that each of them “has a duty to consult with one another, to deliberate 24 with a view to reaching an agreement if it can be done without violence to individual 25 judgment.” (RT 12/20/04 at 4; ROA 423 at 2.) The court cautioned that, “No juror should 26 surrender his or her honest conviction as to the weight or effect of the evidence solely 27 because of the opinion of other jurors or for the purpose of reaching a verdict.” (Id.) Also 28 in contrast to the note in Tucker, the jurors’ note in Andriano’s case was not an “emphatic

- 97 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 98 of 143

1 and unequivocal” expression of deadlock. Tucker, 221 F.3d at 612. This factor also 2 suggests the instruction was not coercive. Id.; see Lowenfield, 484 U.S. at 239. 3 Finally, the length of the deliberation supports a finding that the duty-to-deliberate 4 charge was not coercive. The jury did not reach its verdict until two days after the court 5 responded to the jurors’ note. Andriano, 215 Ariz. at 508, 161 P.3d at 551. This contrasts 6 with the brief time period between the Allen charge and the verdict in Tucker. 7 The totality of the factors demonstrates that the duty-to-deliberate instruction 8 offered by the court in Andriano’s case was not coercive. 9 The Arizona Supreme Court’s rejection of this claim was neither contrary to nor an 10 unreasonable application of clearly established federal law. Andriano has not met her 11 burden of showing “there was no reasonable basis for the state court to deny relief.” 12 Richter, 562 U.S. at 98. Claim 9 is denied. 13 CLAIM 12 14 Andriano alleges that the State failed to present sufficient evidence supporting a 15 finding of cruelty under the (F)(6) aggravating circumstance. (Doc. 17 at 137.) The Arizona 16 Supreme Court denied this claim on direct appeal: 17 The evidence showed that Andriano poisoned Joe with sodium azide and left him to suffer for what felt to Joe like a “long time.” During that period, Joe 18 vomited at least twice, was too weak to sit or stand, and was having difficulty 19 breathing. After pretending to call 911, Andriano stood by for approximately forty-five minutes as Joe suffered from the effects of sodium azide poisoning. 20 Andriano’s Internet research on sodium azide and the warnings 21 accompanying the shipped chemical demonstrate that she knew or should have known that poisoning her husband with sodium azide would cause him 22 physical pain and mental anguish. Joe, who was conscious during this time, 23 as evidenced by his interaction with Chris, undoubtedly “experienced significant uncertainty as to [his] ultimate fate.” See Ellison, 213 Ariz. at 24 142, ¶ 120, 140 P.3d at 925 (quoting State v. Van Adams, 194 Ariz. 408, 421, 25 ¶ 44, 984 P.2d 16, 29 (1999)) (mental anguish, and hence cruelty, established upon this showing). 26 27 Moreover, Andriano struck her terminally ill husband at least twenty-three times in the back of the head with a bar stool. Defensive wounds on Joe’s 28 hands and wrists indicate that he was conscious for at least some of the attack

- 98 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 99 of 143

1 and thus knew his wife was attacking him as he lay on the floor, unable to 2 defend himself. Andriano also knew or should have known that beating her husband with a bar stool would cause him physical pain and mental 3 anguish.10 4 FN 10 The evidence established that Joe was likely 5 unconscious when his throat was slashed. We therefore do not consider whether the stabbing caused physical pain or mental 6 anguish. 7 Andriano asks us to require that the physical or mental pain experienced by 8 the victim be “extreme.” There is no such requirement for a cruelty 9 finding. See Trostle, 191 Ariz. at 18, 951 P.2d at 883. Nonetheless, the physical pain and mental anguish Joe experienced likely were “extreme” by 10 any standards. 11 Andriano, 215 Ariz. at 511, 161 P.3d at 554. The court then rejected Andriano’s argument 12 that Joe could not have experienced mental anguish because he did not know he had been 13 poisoned: 14 While a victim’s knowledge of the source of physical pain may be relevant 15 to whether the victim experienced mental anguish, it is not a requisite for a finding of mental anguish. And on the facts of this case, mental anguish is 16 established even if Joe did not know he had been poisoned. Moreover, cruelty 17 can be established upon a showing of either mental anguish or physical pain. Id. We thus conclude that cruelty was established based on either—or 18 both—mental anguish or physical pain. 19 Id. Andriano alleges that this decision was contrary to or an unreasonable application of 20 clearly established federal law and based on an unreasonable determination of the facts. 21 (Doc. 17 at 137–38.) The Court does not agree. 22 Whether a state court misapplied an aggravating factor to the facts of a case is a 23 question of state law. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990). Federal habeas review 24 of a state court’s application of an aggravating factor is limited to determining whether the 25 state court’s finding was so arbitrary or capricious as to constitute an independent due 26 process or Eighth Amendment violation. Id. In Jeffers, the Supreme Court held that the 27 appropriate standard of federal habeas review of a state court’s application of an 28 aggravating circumstance is the “rational factfinder” test: “whether, after viewing the

- 99 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 100 of 143

1 evidence in the light most favorable to the prosecution, any rational trier of fact could have 2 found the essential elements” of the aggravating factor. Id. (quoting Jackson v. Virginia, 3 443 U.S. 307, 319 (1979)); see McDaniel v. Brown, 558 U.S. 120, 133 (2010). 4 “The ‘especially cruel’ prong of the (F)(6) aggravator focuses on the victim’s state 5 of mind.” State v. Tucker, 215 Ariz. 298, 321,160 P.3d 177, 200 (2007). “To establish this 6 prong, the state must prove beyond a reasonable doubt that the defendant knew or should 7 have known that the victim would experience mental anguish or physical pain and that the 8 victim was conscious during some part of the violence.” Id. Mental anguish alone can 9 support a finding of cruelty and “is established if the victim experienced significant 10 uncertainty as to her ultimate fate.” State v. Ellison, 213 Ariz. 116, 142, 140 P.3d 899, 925 11 (2006) (quotations omitted). When assessing the cruelty factor, the court “examines the 12 entire murder transaction and not simply the final act that killed the victim.” Id. (quotations 13 omitted). 14 Andriano has not demonstrated that no rational trier of fact could have found the 15 especially cruel aggravating factor to exist. Jeffers, 497 U.S. at 780. As the Arizona Supreme 16 Court concluded, the record contains sufficient evidence that Joe consciously suffered both 17 mental anguish and physical pain and that Andriano knew or should have known that he 18 would suffer. See Tucker, 215 Ariz. at 321, 60 P.3d at 200; Ellison, 213 Ariz. at 142, 140 19 P.3d at 925. 20 First, Andriano watched Joe experience the effects of the poison—dizziness, nausea, 21 weakness, and difficulty breathing—for some 45 minutes while leading him to believe that 22 she had called 911 and that paramedics were on their way. Andriano, 215 Ariz. at 511, 161 23 P.3d at 554. From her research on the drug and the warnings that accompanied the shipment 24 of the poison, Andriano knew or should have known that ingesting sodium azide would 25 cause Joe to suffer physically and mentally as he experienced uncertainty about his fate. 26 Id. 27 Andriano then struck Joe at least 23 times in the back of the head with a bar stool. 28 Defensive wounds indicated that he was conscious for at least some of the attack. Id.

- 100 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 101 of 143

1 Andriano knew or should have known that beating her poisoned and terminally ill husband 2 with a bar stool while he lay on the floor would cause him physical pain and mental 3 anguish. Id. 4 Andriano argues that Joe might not have known he was being poisoned because the 5 effects he experienced from the sodium azide were similar to those of chemotherapy and 6 the cancer itself. (Doc. 17 at 138–39.) As noted, the Arizona Supreme Court rejected this 7 argument on state law grounds, finding that knowledge of the source of the suffering is not 8 required under (F)(6). Andriano, 215 Ariz. at 511, 161 P.3d at 554. “[I]t is not the province 9 of a federal habeas court to reexamine state-court determinations on state-law questions.” 10 Estelle v. McGuire, 502 U.S. 62, 67–68 (1991); see Babbitt, 151 F.3d at 1178–79. 11 Andriano also challenges the Arizona Supreme Court’s finding that Joe was 12 conscious during the beating. (Doc. 17 at 141.) She bases this argument on the medical 13 examiner’s testimony that he could not be certain at what point Joe lost consciousness 14 while being attacked with the barstool. (Id.) However, for purposes of analysis under 15 Jackson and the AEDPA, a presumption of correctness attaches to the state court’s factual 16 findings. See Brown, 558 U.S. at 133. Andriano has not rebutted that presumption. Viewed 17 in the light most favorable to the prosecution, Joe’s defensive wounds and the medical 18 examiner’s testimony that Joe “was certainly conscious” during some part of the attack 19 (RT 11/30/04 at 56–57), support the Arizona Supreme Court’s conclusion that Joe was 20 conscious and experienced mental and physical suffering. 21 Finally, Andriano argues that the period of her husband’s suffering was too brief to 22 result in a finding of extreme cruelty. Under Arizona law, however, “[n]o set period of 23 suffering is required” for cruelty to exist. State v. Cropper, 223 Ariz. 522, 526, 225 P.3d 24 579, 583 (2010). Moreover, the circumstances here, encompassing the entire murder 25 transaction, see Ellison, 213 Ariz. at 142, 140 P.3d at 925, demonstrate that Joe suffered 26 for a prolonged period—at least 45 minutes before Andriano eventually rendered him 27 unconscious with blows from the barstool. 28

- 101 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 102 of 143

1 A rational trier of fact, viewing the evidence in the light most favorable to the 2 prosecution, could have found that Joe suffered both physical and mental cruelty in 3 satisfaction of the (F)(6) aggravating factor. Claim 12 is denied as meritless. 4 CLAIM 13 5 Andriano alleges that the trial court prevented the jury from considering mercy and 6 residual doubt as mitigating circumstances in violation of her rights under the Sixth, Eighth, 7 and Fourteenth Amendments. (Doc. 17 at 143.) The Arizona Supreme Court rejected these 8 arguments on direct appeal. Andriano, 215 Ariz. at 506–07, 161 P.3d at 549–50. 9 A. Mercy 10 Andriano asked the trial court to include a list of 27 proposed mitigating factors in 11 the preliminary penalty-phase jury instructions. (ROA Item 396.) She identified “mercy” 12 as one of the factors. (Id. at 2.) The State objected, arguing that the proposed factor 13 inappropriately appealed to “sympathy or bias.” (RT 12/7/04 at 6.) Defense counsel 14 countered that “mercy is synonymous with leniency.” (Id.) The trial court issued the 15 following ruling: 16 With regard to the issue of mercy and witness statements pertaining [to] the appropriate sentence, with regard to this issue, it is ordered that no witness, 17 whether called by the defense or by the State shall be asked about nor are 18 they to offer any opinion regarding the appropriate sentence to be imposed in this case or make any request for a specific sentence in this case. 19 20 Defense witnesses, however, may testify as to the loss or impact that will result from the defendant’s execution. 21 22 (RT 12/8/04 at 6.) The court thereby did not include “mercy” on the mitigation list

23 submitted to the jurors. (ROA 399 at 5–6; ROA 19 at 6–7.)

24 In its jury instructions, the court defined mitigation as circumstances “which, in

25 fairness or mercy, may extenuate or reduce the degree of blame or moral culpability.”

26 (ROA 419 at 6.) The court further instructed jurors that they were not limited to the

27 enumerated mitigating factors; that the weighing of aggravation and mitigation was not a

28 “mere mechanical counting of factors”; that they were required to reach “a reasoned, moral

- 102 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 103 of 143

1 judgment about which penalty is justified and appropriate”; and that they were not to be 2 influenced by “mere sentiment, passion or prejudice.” (Id. at 8–9.) 3 On direct appeal, Andriano alleged that the trial court’s refusal to allow her to 4 present evidence of mercy violated her constitutional rights. The Arizona Supreme Court 5 rejected the argument: 6 Arizona Revised Statutes § 13–703(G) (Supp.2004) provides that mitigating circumstances are “any factors proffered by the defendant or the state that 7 are relevant in determining whether to impose a sentence less than death, 8 including any aspect of the defendant’s character, propensities or record and any of the circumstances of the offense.” The defendant bears the burden of 9 proving mitigating circumstances by a preponderance of the evidence. Id. § 10 13–703(C). The defendant cannot, however, prove “mercy” by any standard, nor does it relate to the character or propensities of the defendant or the 11 circumstances of the crime. Therefore, mercy is not a mitigating 12 circumstance.

13 Mercy is a concept jurors may apply in evaluating the existence of mitigating 14 circumstances and in deciding whether the death penalty is appropriate in a particular case. In this sense, “mercy” is simply another word for 15 “compassion” or “leniency.” A capital defendant is free to argue to the jury, 16 as the defense did here, that mercy or leniency is appropriate based on the mitigation evidence presented. 17 The instructions given in this case correctly conveyed the role of mercy in 18 determining the appropriate sentence. The trial court did not err in refusing 19 Andriano’s request to include mercy among the enumerated mitigating circumstances for the jury’s consideration. 20 Andriano, 215 Ariz. at 506–07, 161 P.3d at 549–50. 21 This decision was neither contrary to nor an unreasonable application of clearly 22 established federal law. 23 The Arizona Supreme Court reasonably determined that the exclusion of “mercy” 24 from Andriano’s enumerated list of mitigating circumstances did not prevent her from 25 arguing, and the jury from considering, the concept of mercy in determining her sentence. 26 As noted, the jurors here were specifically instructed that mitigating circumstances are 27 those that operate “in fairness or mercy” to warrant lenience. (ROA 419 at 6.) Because the 28 jury was not precluded from considering mercy as a mitigating circumstance, there was no

- 103 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 104 of 143

1 violation under clearly established federal law of Andriano’s right “to introduce any 2 relevant mitigating evidence regarding [her] character or record and any of the 3 circumstances of the offense.” California v. Brown, 479 U.S. 538, 541 (1987). 4 Finally, any error in precluding this evidence was harmless under Brecht. The trial 5 court did not prohibit Andriano from arguing for mercy, but simply denied her request to 6 list it as a distinct mitigating circumstance. As the Arizona Supreme Court found, defense 7 counsel did in fact argue for mercy. Andriano, 215 Ariz. at 507, 161 P.3d at 550. In 8 addition, Andriano fails to indicate what evidence she would have presented to “prove” 9 mercy, a concept which the Arizona Supreme Court characterized as unprovable. Id. The 10 trial court’s ruling with respect to mercy as a mitigating circumstance did not have “a 11 substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 12 U.S. at 637. 13 B. Residual doubt 14 Before trial, the State moved to preclude Andriano from offering residual doubt as 15 mitigating circumstance. (ROA 144.) In response, Andriano notified the court that she did 16 not intend to present residual doubt as mitigation. (ROA 165.) The trial court granted the 17 State’s motion, precluding Andriano “from presenting evidence or arguing residual doubt 18 in the penalty phase of the sentencing.” (RT 7/30/04 at 5.) 19 Andriano subsequently asked the trial court to include residual doubt in a list of 20 mitigating circumstances submitted to the jury. (ROA 396 at 2.) Defense counsel asked the 21 court to include residual doubt on her mitigation list because it was “that space between 22 beyond a reasonable doubt and beyond all doubt” and was “an area we can go into in terms 23 of mitigation.” (RT 12/7/04 at 5.) The court affirmed its previous ruling precluding 24 residual-doubt evidence and argument (RT 12/8/04 at 5–6) and omitted residual doubt from 25 the list of proposed mitigating circumstances given to the jury. (ROA 399 at 5–6; ROA 419 26 at 6–7.) 27 Andriano challenged the trial court’s ruling on appeal, arguing that it restricted the 28 jurors’ consideration of mitigation. The Arizona Supreme Court rejected the claim:

- 104 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 105 of 143

1 Both the United States Supreme Court and this Court have rejected the 2 argument that a capital defendant must be allowed to present residual doubt evidence in mitigation. In Oregon v. Guzek, the defendant argued that the 3 Eighth and Fourteenth Amendments granted him a constitutional right to present new alibi evidence at his sentencing proceeding. 546 U.S. 517, –––– 4 , 126 S.Ct. 1226, 1230, 163 L.Ed.2d 1112 (2006). The Supreme Court, 5 although not deciding whether such a right exists, held that its previous cases do not grant capital defendants a constitutional right to present evidence of 6 residual doubt at sentencing. Id. at ––––, 126 S.Ct. at 1231–32. We thus 7 noted in State v. Ellison that “there is no constitutional requirement that the sentencing proceeding jury revisit the prior guilty verdict by considering 8 evidence of ‘residual doubt.’” 213 Ariz. 116, 136, ¶ 82, 140 P.3d 899, 919 9 (citing Guzek, 546 U.S. at ––––, 126 S.Ct. at 1230–32), cert. denied, ––– U.S. ––––, 127 S.Ct. 506, 166 L.Ed.2d 377 (2006). The trial court did not err 10 in denying Andriano’s request to present residual doubt evidence in 11 mitigation.

12 Andriano, 215 Ariz. at 506–07, 161 P.3d at 549–50. 13 This decision was neither contrary to nor an unreasonable application of clearly 14 established federal law. 15 “[T]he United States Supreme Court has expressly rejected the assertion that a 16 capital defendant has a federal constitutional right to produce evidence of residual doubt at 17 sentencing.” Atwood v. Schriro, 489 F. Supp. 2d 982, 1021 (D. Ariz. 2007) (citing Guzek, 18 546 U.S. at 523–25); see Abdul-Kabir v. Quarterman, 550 U.S. 233, 250–51 (2007) (“[W]e 19 have never held that capital defendants have an Eighth Amendment right to present 20 ‘residual doubt’ evidence at sentencing.”); Franklin, 487 U.S. at 174 (suggesting there is 21 no constitutional right to present evidence of “residual doubt” because “[s]uch lingering 22 doubts are not over any aspect of petitioner’s ‘character,’ ‘record,’ or a ‘circumstance of 23 the offense’”); see also Holland v. Anderson, 583 F.3d 267, 283 (5th Cir. 2009) (explaining 24 that the Supreme Court “has not recognized a constitutional right to argue ‘residual doubt’ 25 at sentencing,” so the state court’s decision precluding such evidence was neither contrary 26 to nor an unreasonable application of clearly established federal law). 27 The reasoning in Guzek applies to Andriano’s residual-doubt argument. In Guzek, 28 the Supreme Court noted that “sentencing traditionally concerns how, not whether, a

- 105 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 106 of 143

1 defendant committed the crime.” 546 U.S. at 526. In Guzek, the defendant had been found 2 guilty and sentenced to death. Id. at 519. The Oregon Supreme Court reversed the death 3 sentence. Id. at 519–20. At the penalty-phase retrial, the defendant sought to introduce alibi 4 evidence that he had not presented during the guilt phase. Id. at 520. The Supreme Court 5 held that the defendant did not have a constitutional right to introduce evidence at the new 6 penalty phase because, in part, “that evidence [wa]s inconsistent with Guzek’s prior 7 conviction. It shed[ ] no light on the manner in which he committed the crime for which he 8 has been convicted.” Id. at 523. The Court noted that “the parties previously litigated the 9 issue to which the evidence is relevant—whether the defendant committed the basic crime. 10 The evidence thereby attacks a previously determined matter in a proceeding at which, in 11 principle, that matter is not at issue. The law typically discourages collateral attacks of this 12 kind.” Id. at 526. 13 Andriano’s residual-doubt argument did not concern how she killed Joe but whether 14 she killed him in a manner that constituted first-degree murder, an issue that had already 15 been decided by the jury’s guilty verdict. Id. Again, this type of evidence is irrelevant to 16 the sentencing determination. See United States v. Gabrion, 719 F.3d 511, 525 (6th Cir. 17 2013) (“We are . . . doubtful that a (by-definition) unreasonable doubt regarding an issue 18 litigated during the guilt phase of the trial can be part of ‘a reasoned moral response to the 19 defendant’s background, character, and crime.’”) (quoting Penry v. Lynaugh, 492 U.S. 302, 20 319 (1989)). 21 Finally, the Court finds that any error in excluding Andriano’s residual-doubt 22 evidence was harmless under Brecht. Andriano offers no indication of what evidence she 23 was prevented from offering that would have supported a residual-doubt mitigating 24 circumstance. Andriano testified at trial. The jury rejected her version of events and found 25 her guilty of premeditated first-degree murder. The exclusion of unspecified residual-doubt 26 evidence at sentencing did not have “a substantial and injurious effect or influence in 27 determining the jury’s verdict.” Brecht, 507 U.S. at 637. 28 C. Conclusion

- 106 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 107 of 143

1 The Arizona Supreme Court’s denial of these claims was neither contrary to nor an 2 unreasonable application of clearly established federal law. See Richter, 562 U.S. at 98. 3 Claim 13 is denied as meritless. 4 CLAIM 14 5 Andriano alleges that the trial court improperly instructed the jury at the penalty 6 phase that it could only consider mitigating circumstances that were found to exist 7 unanimously, in violation of her Sixth, Eighth, and Fourteenth Amendment rights. (Doc. 8 17 at 147.) 9 A. Background 10 At issue is the following instruction, provided by the court in the penalty phase of 11 trial: 12 Any verdict of death or life imprisonment must be unanimous. If you unanimously find that no mitigation exists, then you must return a verdict of 13 death. If you unanimously find that mitigation exists, each one of you must individually weigh that mitigation in light of the aggravating circumstance 14 already found to exist, and if you unanimously find that the mitigation is not 15 sufficiently substantial to call for leniency, you must return a verdict of death. If you unanimously find that mitigation exists and it is sufficiently 16 substantial to call for leniency, you must return a verdict of life. If, after 17 considering all of the aggravating and mitigating evidence, you have a doubt whether a death sentence should be imposed, then you should resolve that 18 doubt in favor of a life sentence. 19 20 (ROA 419 at 10; RT 2/16/04 at 49.)

21 On direct appeal, the Arizona Supreme Court rejected Andriano’s claim that that

22 “this instruction improperly required the jury to unanimously find particular mitigating

23 circumstances before each juror could individually consider whether that mitigation was

24 sufficiently substantial to call for leniency.” Andriano, 215 Ariz. at 507, 161 P.3d at 550.

25 The court explained:

26 Each juror in a death penalty case must individually determine whether any mitigating circumstances exist. A.R.S. § 13-703(C); see Baldwin, 211 Ariz. 27 at 472, ¶ 13, 123 P.3d at 666; see also Ellison, 213 Ariz. at 139, ¶ 102, 140 28 P.3d at 922 (discussing Supreme Court cases holding that capital sentencing statutes may not require unanimity as to mitigating circumstances). Then, in

- 107 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 108 of 143

1 light of the aggravating circumstances the jury has already found to exist, 2 each juror must individually determine whether the mitigation that juror has found to exist is sufficiently substantial to call for leniency. See A.R.S. § 13- 3 703(C), (E); Baldwin, 211 Ariz. at 473, ¶ 18, 123 P.3d at 667. 4 Read as a whole, the instructions given here correctly advised the jurors that 5 they did not have to agree upon the existence of any particular mitigating circumstance before each juror could individually assess whether the 6 mitigation was sufficiently substantial to call for leniency. The court 7 repeatedly advised them during the penalty phase that each juror was required to “individually” determine the existence of mitigating 8 circumstances. [] We therefore conclude that the trial court’s instruction, 9 considered in light of the other instructions, adequately informed the jury and does not require reversal. 10 11 Id. at 507–08, 161 P.3d at 550–51 (footnote omitted). The court noted that additional

12 instructions provided by the trial court supported its determination that the instruction at

13 issue did not contain an improper unanimity requirement. For example, before being given

14 the instruction to which Andriano objects, the jurors had been instructed as follows:

15 Although a final decision on a penalty of death or life imprisonment must be unanimous, the determination of what circumstances are mitigation is 16 for each one of you to resolve, individually, based upon all the evidence that has been presented to you during this phase and at any of the prior phases of 17 the trial. 18 (ROA 419 at 6; RT 12/16/04 at 45) (emphasis added). The jurors were also instructed: 19 20 You must make your decision about whether mitigation is sufficiently substantial to call for leniency based solely upon your weighing of any 21 mitigation proven to you and the aggravating factor you have already found 22 during the Aggravation Phase. To do this, you must individually determine the nature and extent of mitigating circumstances. Then, in light of the 23 aggravating circumstance that has been proven to exist, you must individually determine if the totality of the mitigating circumstances is 24 sufficiently substantial to call for leniency and a life sentence. 25 (ROA 419 at 8–9; RT 12/16/04 at 47) (emphasis added). 26 In addition, at the outset of the penalty phase, the jury was advised that “[t]he jurors 27 do not have to agree unanimously that a mitigating circumstance has been proven to exist. 28 Each juror may consider any mitigating circumstance found by that juror in determining

- 108 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 109 of 143

1 the appropriate penalty.” (RT 12/8/04 at 27.) The jury was further instructed to 2 “individually decide whether there is mitigation and whether it is sufficiently substantial 3 to call for the imposition of a life sentence rather than a sentence of death.” (Id.) 4 Finally, defense counsel in their penalty-phase closing argument “correctly advised 5 the jurors regarding their responsibilities.” Andriano, 215 Ariz. at 508 n.6, 161 P.3d at 551. 6 They informed the jury: “[t]o clarify once again, individually determine the nature and 7 extent of the mitigating circumstances. Not as a group, individually. What is it to me, as 8 one juror. What is my moral position on that circumstance.” (RT 12/16/04 at 40.) 9 B. Analysis 10 The clearly established federal law governing this claim includes Mills v. Maryland, 11 486 U.S. 367 (1988). The Court in Mills found a state court’s jury instructions and verdict 12 forms unconstitutional because they suggested that the jurors could not find a circumstance 13 mitigating unless they found it proven unanimously. Id. at 380–81; see also McKoy v. North 14 Carolina, 494 U.S. 433, 435 (1990) (applying Mills to invalidate state law preventing jury 15 from considering any mitigating factor not found unanimously). 16 In Smith v. Spisak, 558 U.S. 139, 144 (2010), the Court explained that the rule set 17 out in Mills “is based on two well-established principles.” First, the death penalty cannot 18 be imposed if the sentencer is “precluded from considering, as a mitigating factor, any 19 aspect of a defendant’s character or record and any of the circumstances of the offense that 20 the defendant proffers as a basis for a sentence less than death.” Id. (quoting Mills, 486 21 U.S. at 374 (additional quotation marks omitted). Second, the sentencer “may not refuse to 22 consider or be precluded from considering any relevant mitigating evidence.” (Id.) (quoting 23 Mills, 486 U.S. at 374–375) (additional quotation marks omitted). 24 Andriano alleges that the Arizona Supreme Court’s decision unreasonably 25 determined the facts and was contrary to, or an unreasonable application of, Mills and 26 McKoy. (Doc. 17 at 147–51.) The Court disagrees. 27 The Arizona Supreme Court reasonably determined that the instructions provided 28 by the trial court, when viewed in their entirety, did not impose a unanimity requirement

- 109 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 110 of 143

1 in violation of Mills and McKoy. First, the instruction itself did not explicitly impose such 2 a requirement as to each mitigating circumstance. Moreover, as the Arizona Supreme Court 3 correctly noted, the trial court “repeatedly advised [jurors] during the penalty phase that 4 each juror was required to ‘individually’ determine the existence of mitigating 5 circumstances.” Andriano, 215 Ariz. at 508, 161 P.3d at 551. In addition, the jury was 6 preliminarily instructed that “[t]he jurors do not have to agree unanimously that a 7 mitigating circumstance has been proven to exist.” Id. at 508 n.6, 161 P.3d at 551 n.6. 8 These circumstances contrast sharply with the instructions offered in Mills and McKoy. 9 In Mills, the Supreme Court overturned a Maryland death sentence where the jury 10 had received a verdict form which contained a list of possible mitigating circumstances, 11 accompanied by spaces in which the jury could check “yes” or “no” and preceded by a 12 statement that the jury “unanimously find[s] that each of the following mitigating 13 circumstances which is marked ‘yes’ has been proven to exist.” 486 U.S. at 384–89. The 14 verdict form in Mills further asked the jury to affirm or deny that it unanimously found that 15 the mitigating circumstances marked “yes” outweighed the aggravating circumstances, and 16 the trial court’s instruction to the jury in that case emphasized the unanimity requirement. 17 Id. The Supreme Court determined that these instructions and the verdict form violated the 18 constitution because the jury could have interpreted them as precluding, through the 19 requirement of unanimity with respect to a particular circumstance, the consideration of all 20 possible mitigating evidence. Id. at 380. 21 In McKoy, the Court applied Mills to overturn a North Carolina death sentence 22 where the sentencing jury received an instruction that expressly prevented the jury from 23 considering any mitigating factor that it did not “unanimously” find to exist. The Court 24 held that the instruction violated the Eighth Amendment because it impermissibly limited 25 the jurors’ consideration of mitigating evidence. McKoy, 494 U.S. at 442–44. 26 Andriano argues that a reasonable juror could have read the instructions in her case 27 as demanding unanimity with respect to the finding of a mitigating circumstance. (Doc. 17 28 at 149–50.) She offers several scenarios under which the jurors could have been confused

- 110 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 111 of 143

1 by the instructions, including uncertainty about when unanimity was required with respect 2 to mitigation and when it was not. (See Doc. 17 at 149–51.) These scenarios are 3 unpersuasive given the totality of the penalty-phase instructions provided by the trial court, 4 which repeatedly emphasized that it was up to the individual juror to determine whether a 5 particular mitigating circumstance existed and that unanimity was not required. The 6 instruction that followed—“If you unanimously find that mitigation exists, each one of you 7 must individually weigh that mitigation in light of the aggravating circumstance already 8 found to exist”—is plainly read as requiring unanimity only insofar as each juror in his or 9 her individual determination found that any mitigating circumstance existed. 10 Taken as a whole, the instructions provided in Andriano’s case did not, by 11 demanding juror unanimity with respect to the finding of a mitigating circumstance, 12 prohibit the jury from “considering any relevant mitigating evidence.” Spisak, 558 U.S. at 13 144; id. at 148 (finding no violation of Mills and McKoy where “the instructions did not 14 say that the jury must determine the existence of each individual mitigating factor 15 unanimously”). 16 Andriano has not met her burden of showing “there was no reasonable basis” for 17 the Arizona Supreme Court to deny this claim. Richter, 562 U.S. at 98. Accordingly, Claim 18 14 is denied. 19 CLAIM 16 20 Andriano alleges that the instructions defining cruelty were vague and overbroad, 21 in violation of her rights under the Sixth, Eighth, and Fourteenth Amendments. (Doc. 17 at 22 155.) She argues that the instructions did not inform the jury about what qualified as the 23 “norm of first degree murders” and did not define “mental anguish” by including the phase 24 “uncertainty about his ultimate fate.” (Id. at 156, 158). 25 A. Background 26 The trial court provided the following instruction with respect to the (F)(6) cruelty 27 aggravating factor: 28

- 111 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 112 of 143

1 All first degree murders are to some extent heinous, cruel or depraved. 2 However, this aggravating circumstance cannot be found to exist unless the murder is especially heinous, cruel or depraved, that is, where the 3 circumstances of the murder raise it above the norm of other first degree murders. 4 .... 5 “Cruelty” involves the infliction of physical pain and/or mental anguish on a 6 victim before death. A crime is committed in an especially cruel manner when a defendant either knew or should have known that the manner in 7 which the crime is committed would cause the victim to experience physical 8 pain and/or mental anguish before death. The victim must be conscious for at least some portion of the time when the pain and/or anguish was inflicted. 9 10 (RT 12/1/04 at 91–92; ROA 383 at 10.) 39

11 On direct appeal, the Arizona Supreme Court rejected Andriano’s argument that the

12 “instruction was insufficient to guide the jury and channel its discretion in applying the

13 aggravator.” Andriano, 215 Ariz. at 505, 161 P.3d at 548. The court reviewed the

14 instruction for fundamental error. In denying the claim, the court explained:

15 The instruction given paraphrases this Court’s statement in State v. Trostle, 191 Ariz. 4, 18, 951 P.2d 869, 883 (1997), that “[c]ruelty exists if the victim 16 consciously experienced physical or mental pain prior to death, and the defendant knew or should have known that suffering would occur.” (Internal 17 citation omitted.) We recently reaffirmed that the Trostle definition of 18 “cruelty” sufficiently narrows and gives substance to the (F)(6) “especially cruel” aggravating factor to save it from constitutional infirmity. Anderson 19 II, 210 Ariz. at 352 & n. 18, ¶109, 111 P.3d at 394 & n. 18. We similarly 20 conclude here that the trial court’s instruction gave sufficient substance and specificity to the term “cruelty” to channel the jury’s discretion and correct 21 any unconstitutional vagueness. 22 .... 23 The trial court instructed the jury that the (F)(6) aggravating circumstance 24 “cannot be found to exist unless the murder is especially heinous, cruel or 25 depraved, that is, where the circumstances of the murder raise it above the norm of other first degree murders.” Andriano claims that this instruction 26 required the jury to engage in proportionality review, which was improper in 27 28 39 The jury found the cruelty prong of (F)(6) was proved but not the heinous or depraved prongs.

- 112 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 113 of 143

1 light of State v. Salazar, 173 Ariz. 399, 416, 844 P.2d 566, 583 (1992), and 2 State v. Greenway, 170 Ariz. 155, 171, 823 P.2d 22, 38 (1991). . . .

3 We have held that “the death penalty should not be imposed in every capital murder case but, rather, it should be reserved for cases in which either the 4 manner of the commission of the offense or the background of the defendant 5 places the crime ‘above the norm of first-degree murders.’” State v. Carlson, 202 Ariz. 570, 582, ¶45, 48 P.3d 1180, 1192 (2002) (quoting State v. Hoskins, 6 199 Ariz. 127, 163, ¶169, 14 P.3d 997, 1033 (2000)). Such an instruction 7 does not require the jury to engage in proportionality review. Instead, the jurors must assess whether the murder was so cruel that it rose above the 8 norm of first degree murders. To assist them in this inquiry, the judge 9 instructed the jurors on the definition of “cruelty,” explaining how to determine whether “the circumstances of the murder raise it above the norm 10 of other first degree murders.” Considering the instructions as a whole, the 11 jury was properly instructed to apply the definition of “cruelty,” rather than to engage in proportionality review. The trial court did not err, fundamentally 12 or otherwise, in giving the instruction. 13 Id. at 505–06, 161 P.3d at 548–49 (footnote omitted). 14 B. Analysis 15 This decision was neither contrary to nor an unreasonable application of clearly 16 established federal law. First, rulings of both the Ninth Circuit and the United States 17 Supreme Court have upheld Arizona’s death penalty statute against allegations that 18 particular aggravating factors, including the (F)(6) factor, do not adequately narrow the 19 sentencer’s discretion. See Jeffers, 497 U.S. at 774–77; Walton, 497 U.S. at 652–56. In 20 Walton, the Supreme Court held that the “especially heinous, cruel or depraved” 21 aggravating circumstance was facially vague but the vagueness was remedied by the 22 Arizona Supreme Court’s clarification of the factor’s meaning. 497 U.S. at 654; see also 23 Smith v. Ryan, 823 F.3d 1270, 1294–95 (9th Cir. 2016); Dixon v. Ryan, No. CV-14-258- 24 PHX-DJH, 2016 WL 1045355, at *45 (D. Ariz. Mar. 16, 2016), aff’d, 932 F.3d 789 (9th 25 Cir. 2019) (“There is no clearly established federal law holding that jury instructions based 26 on the Arizona Supreme Court’s narrowing construction are inadequate.”). 27 Andriano cites no authority for the proposition that additional jury instructions on 28 the definitions of “norm of first degree murders” and “mental anguish” are necessary to

- 113 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 114 of 143

1 narrow the cruelty factor. The instruction provided in Andriano’s case contained the two 2 “essential narrowing factors” of cruelty: that the victim consciously experienced mental or 3 physical pain and that the defendant knew or should have known the victim would suffer. 4 Tucker, 215 Ariz. at 310, 160 P.3d at 189–90. 5 The Arizona Supreme Court reasonably determined that the phrase “above the norm 6 of first degree murders” was appropriately narrowed by the definition of “especially cruel,” 7 which directly followed it in the instructions. Andriano, 215 Ariz. at 596, 161 P.3d at 549. 8 Andriano argues that the term “mental anguish” is properly narrowed under Walton, 9 497 U.S. at 654, only when it is further defined to include the “victim’s uncertainty about 10 his ultimate fate.” (Doc. 17 at 158.) This argument is unconvincing. 11 Under Walton, “mental anguish” itself is the phrase that properly narrows the (F)(6) 12 factor. See Kennedy v. Louisiana, 554 U.S. 407, 440 (2008) (noting that the Court has 13 upheld the constitutionality of aggravating factors including Arizona’s “‘the perpetrator 14 inflict[ed] mental anguish or physical abuse before the victim’s death.’”) (quoting Walton, 15 497 U.S. at 654) (alteration in original). The Arizona Supreme Court has approved 16 instructions that did not include the “uncertainty about his fate” language. See Tucker, 215 17 Ariz. at 310–11, 160 P.3d at 189–90 (“We have approved ‘especially cruel’ 18 narrowing instructions that required the jury to find that the victim was conscious during 19 the mental anguish or physical pain and also that the defendant knew or should have known 20 that the victim would suffer. . . . Tucker’s instructions contained these essential narrowing 21 factors.”) (citations omitted); see State v. Champagne, 247 Ariz. 116, 140, 447 P.3d 297, 22 321 (2019) (noting the “two essential narrowing factors” of cruelty under (F)(6): “the 23 victim was conscious during the mental anguish or physical pain” and “the defendant knew 24 or should have known that the victim would suffer”). The trial court’s instruction was not 25 erroneous.40 26 40 As use of the word “including” suggests, the phrase “including a victim’s 27 uncertainty as to his ultimate fate” does not narrow “mental anguish,” nor is it a requirement for mental anguish to be proved. The phrase does not define “mental anguish,” 28 but simply gives one example of it. See State v. Djerf, 191 Ariz. 583, 595, 959 P.2d 1274, 1286 (1998) (“Mental anguish includes uncertainty as to one’s ultimate fate. . . . It may

- 114 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 115 of 143

1 Finally, as Respondents argue, even if the trial court’s instruction did not 2 appropriately narrow “mental anguish,” any error was cured by the Arizona Supreme 3 Court’s independent review of the cruelty aggravating factor. The court found that mental 4 anguish in the form of Joe’s significant uncertainty about his ultimate fate was proved. 5 Andriano, 215 Ariz. at 510–11, 161 P.3d at 553–54. 6 In any event, the (F)(6) factor was satisfied by the physical pain Joe suffered, 7 irrespective of whether mental anguish was also proved. See Andriano, 215 Ariz. at 511, 8 161 P.3d at 554 (“We thus conclude that cruelty was established based on either—or 9 both—mental anguish or physical pain.”). 10 Claim 16 is denied. 11 CLAIM 19 12 Andriano alleges that she received ineffective assistance of counsel during the guilt 13 phase of her trial in violation of her rights under the Sixth and Fourteenth Amendments. 14 (Doc. 17 at 167.) The claim consists of subclaims (A) through (F). The Court previously 15 dismissed Claim 19(A) as procedurally defaulted and barred from federal review. (Doc. 68 16 at 30.) The Court addresses Claims 19(B) through 19(F) as follows. 17 A. Mental health evidence 18 In Claim 19(B), Andriano alleges that counsel performed ineffectively by failing to 19 investigate and present expert testimony regarding her mental-health history during the 20 guilt phase of her trial. (Doc. 17 at 175.) According to Andriano, “counsel failed to 21 coordinate an explanation for the circumstances surrounding the offense and consequently 22 missed a critical opportunity to present the jury with evidence that Andriano lacked the 23 requisite mental state to support a first degree murder conviction.” (Id. at 177.) 24 Andriano raised a similar claim in her PCR petition, alleging that trial counsel were 25 ineffective for failing to retain an expert “to evaluate [Andriano’s] mental state at the time 26 also include knowledge that a loved one has been killed.”) (citations omitted). Fear and a 27 victim’s certainty about his fate are also forms of “mental anguish.” State v. Walton, 159 Ariz. 571, 587, 769 P.2d 1017, 1033 (1989). Because mental anguish encompasses more 28 than just a victim’s uncertainty about his fate, including that phrase is not necessary to narrow the cruelty factor.

- 115 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 116 of 143

1 of the crime” and present “expert testimony [that] would have called into question whether 2 Andriano had the requisite mental state for premeditated murder.” (PCR pet., Doc. 28-1, Ex. 3 OOOOO at 59–60.) The PCR court rejected the claim: 4 Concerning the mental illness evidence, the defendant argues that this evidence would have established “whether she formulated the mental state 5 necessary to be convicted of first-degree murder.” However, because she did 6 not raise an insanity defense, evidence of mental illness was inadmissible to negate the mens rea element of the charge. State v. Mott, 187 Ariz. 536, 541, 7 931 P.2d 1046, 1051 (1997). Thus, counsel was not ineffective for failing to 8 seek admission of evidence precluded by Arizona law. 9 (ME 10/30/12 at 5.) (citation omitted). 10 The PCR court’s decision does not entitle Andriano to relief. As that court correctly 11 found, under Arizona law evidence of mental illness short of insanity is inadmissible to 12 negate the mens rea of an offense. See State v. Mott, 187 Ariz. 536, 541, 931 P.2d 1046, 13 1051 (1997) (“Arizona does not allow evidence of a defendant’s mental disorder short of 14 insanity either as an affirmative defense or to negate the mens rea element of a crime.”); 15 see also Clark v. Arizona, 548 U.S. 735, 756 (2006). Because the proposed evidence would 16 not have been admissible, counsel’s failure to offer it did not constitute deficient 17 performance, nor was it prejudicial. See Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) 18 (explaining that failing to take a futile action cannot constitute deficient performance); 19 James v. Borg, 24 F.3d 20, 27 (9th Cir. 1994). 20 Andriano now asserts that the evidence counsel should have presented would have 21 been admissible under State v. Christensen, 129 Ariz. 32, 628 P.2d 580 (1981). (Doc. 17 22 at 180.) Christensen permits expert testimony regarding “a character trait of acting 23 reflexively in response to stress” for the sole purpose of rebutting the premeditation 24 element of first-degree murder. Mott, 187 Ariz. at 543, 931 P.2d at 1054 (citing 25 Christensen, 129 Ariz. at 34–36, 628 P.2d at 582–84). 26 As Respondents note, Andriano did not claim in her PCR petition that counsel 27 should have presented expert testimony of the type that would have been admissible under 28 Christensen. (Doc. 22 at 18.) Therefore, they argue, this aspect of Claim 19(B) is

- 116 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 117 of 143

1 procedurally defaulted. (Id.) Andriano does not attempt to excuse its default. (See Doc. 42 2 at 129–30.) Regardless of its procedural status, however, the Court finds this aspect of the 3 claim is meritless. 4 Under Christensen, an expert cannot testify as to whether the defendant was acting 5 impulsively at the time of the offense. Christensen, 129 Ariz. at 35–36, 628 P.2d at 583– 6 84. Christensen also does not permit evidence of a mental disease or defect as a foundation 7 for demonstrating an impulsive character trait. Mott, 187 Ariz. at 541, 931 P.2d at 1051. 8 Given these limitations and the facts of the case, testimony that Andriano had a character 9 trait of impulsivity would have been of little benefit. The evidence of premeditation was 10 strong. Rebutting premeditation with evidence of a reflexive personality trait would have 11 been a daunting task given the evidence of Andriano’s calculating behavior in planning 12 Joe’s murder, obtaining the sodium azide, altering the crime scene after she had killed Joe, 13 and asking a coworker to hide incriminating evidence. See Wong, 558 U.S. at 24–25 14 (explaining that the “cold, calculated nature” of the murder would have been “powerful 15 counterpoint” to evidence of petitioner’s “instability” and “impulsivity”). Other evidence 16 would have shown Andriano behaving with calculation and deception, as opposed to 17 impulsivity, including her embezzlement of funds from an employer and the fraudulent 18 check scheme she participated in while incarcerated. Under these circumstances, Andriano 19 was not prejudiced by counsel’s failure to present expert testimony pursuant to 20 Christensen. 21 Andriano has not met her burden under Strickland of showing that trial counsel 22 performed ineffectively by failing to present expert testimony about her state of mind at 23 the time of the murder or about a character trait of impulsivity. Claim 19(B) is denied. 24 B. Evidence of Joe’s depression 25 In Claim 19(C), Andriano alleges that trial counsel performed ineffectively by 26 failing to introduce evidence that Joe was severely depressed in the period leading up to 27 his death. (Doc. 17 at 181.) Specifically, Andriano claims that trial counsel failed to present 28 testimony from two witnesses who could have corroborated her testimony that Joe was

- 117 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 118 of 143

1 suicidal: Jeffrey Miller, the attorney who represented the Andrianos in a medical 2 malpractice lawsuit against Joe’s doctors, and Joe’s friend Chris Weaver. (Doc. 17 at 181– 3 85.) 4 Miller testified for the State in the guilt phase of trial. During cross-examination, 5 defense counsel attempted to establish that Miller knew Joe was suicidal. The trial court 6 sustained the State’s hearsay objection. (RT 9/29/04 at 89–91.) 7 Miller later submitted a declaration in support of Andriano’s PCR petition, attesting 8 that in the months prior to Joe’s death, Andriano contacted him to report that Joe was 9 becoming more depressed and had recently expressed a desire to end his life. (PCR pet., 10 Ex. 19, ¶ 4; P-App. 2601.) Miller stated that he contacted Joe about these concerns. Joe 11 “acknowledged” them and “did not deny” their accuracy, but informed Miller that he 12 understood that his non-cancer-related death would terminate the malpractice lawsuit and 13 told Miller “not to worry.” (Id. at ¶ 5; P-App. 2601.) 14 Weaver did not testify at trial, but in an interview with trial counsel he stated that 15 Joe never discussed suicide but instead “always acted like he wasn’t gonna die” and 16 remained “in super spirits.” (PCR pet., Ex. 58 at 9; P-App. 3361.) Weaver also claimed 17 that approximately two months before the murder, Joe had called him, informed him that 18 he and Andriano were composing a will, and asked Weaver to take care of his family after 19 he died. (Id. at 16–18; P-App. 3368–69.) Joe thought “he’d better make [a will] so that he 20 would have one when he did die.” (Id.) As Respondents note, Weaver also recalled some 21 damaging information: that he had frequently seen Andriano out at bars, that Joe believed 22 she had a boyfriend, and that Andriano had called him in late August or early September 23 2000 and told him that Joe’s cancer was spreading and that he had approximately one 24 month to live. (Id. at 5–6, 8–9; P-App. 3358–58, 3360–61.) Andriano “didn’t really seem 25 upset about” that news. (Id. at 6; P-App. 3358.) 26 In addition, in a declaration prepared for the PCR proceedings, Weaver stated that 27 Joe, in the last several months of his life, “had accepted the fact that he was dying” and 28 gave the impression that he “knew he was dying and it didn’t really matter to him

- 118 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 119 of 143

1 anymore.” (PCR pet., Ex. 37, ¶ 4; P-App. 3019.) Weaver also noted that in the year before 2 his death Joe became aware that Andriano was having an affair with a man at their 3 apartment complex. (Id., ¶ 3; P-App. 3019.) 4 The PCR court rejected Andriano’s claims challenging counsel’s performance with 5 respect to the Miller and Weaver testimony. (ME 10/30/12.) The court found that “Jeffrey 6 Miller’s testimony about Joe’s depression was excluded because it was inadmissible 7 hearsay” and that “Chris Weaver’s purported testimony does not establish that Joe was 8 depressed.” (Id. at 5.) 9 The court then explained: 10 Decisions concerning trial strategy and tactics, including what witnesses to call, motions to file, and objections to make, are entrusted to trial counsel. 11 State v. Lee, 142 Ariz. 210, 689 P.2d 153 (1984). The court finds that the 12 defendant has failed to show a colorable claim of deficient performance or prejudice regarding these trial strategies. 13 14 (Id.) 15 The PCR court’s rulings were neither contrary to nor an unreasonable application 16 of clearly established federal law. First, the court reasonably concluded that the testimony 17 Andriano sought to elicit from Miller was inadmissible hearsay. That determination is a 18 matter of state law which does not implicate Andriano’s federal habeas rights. See Estelle, 19 502 U.S. at 67–68. Moreover, counsel did in fact attempt to introduce the testimony, but 20 the trial court ruled it inadmissible. (RT 9/29/04 at 89–91.) Because the testimony was 21 inadmissible under Arizona law, and because counsel nonetheless attempted to admit it, 22 Andriano cannot show deficient performance or prejudice. See Rupe, 93 F.3d at 1445; 23 James, 24 F.3d at 27. 24 Next, with respect to Weaver’s proposed testimony, the PCR court reasonably found 25 that Weaver’s account of Joe’s statements did not establish that Joe was depressed or 26 suicidal, but rather that he was in good spirits or had accepted his diagnosis. Moreover, as 27 Respondents note, reasonable counsel could have elected not to call Weaver because he 28 would have been cross-examined about Andriano’s extramarital affairs and other

- 119 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 120 of 143

1 prejudicial information. Finally, as with Miller’s testimony, Weaver’s account does not 2 negate Andriano’s actions in procuring sodium azide, attempting to obtain a life insurance 3 policy, and bludgeoning and stabbing Joe. There is no reasonable probability that the 4 omitted testimony would have affected the verdict. Counsel was not ineffective for failing 5 to present Weaver’s testimony at trial. 6 Andriano has not met her burden of showing “there was no reasonable basis for the 7 state court to deny relief.” Richter, 562 U.S. at 98; see Mirzayance, 556 U.S. at 123. Claim 8 19(C) is denied. 9 C. Life insurance evidence 10 In Claim 19(D), Andriano alleges that trial counsel performed ineffectively by 11 failing to identify corroborating evidence that Joe knew Andriano was trying to obtain a 12 life insurance policy. (Doc. 17 at 185.) 13 At trial, Andriano testified that Joe was aware of her efforts to obtain a life insurance 14 policy on him, and that she had stopped seeking a policy when Alejo Ochoa advised her it 15 was illegal. (RT 10/27/04 at 32–46.) In her PCR petition, Andriano alleged that counsel 16 should have presented testimony from Gia Palicki, the Andriano children’s babysitter, to 17 corroborate this information. (PCR pet., Doc. 28-1, Ex. OOOOO at 37.) In a declaration in 18 support of the petition, Palicki described the Andrianos’ desire to obtain life insurance: 19 I know that Joe was trying to obtain a life insurance policy. Both [Andriano] and Joe talked to me about it. That was really soon after we met, because 20 they told me about looking for life insurance and about a malpractice lawsuit 21 when they first told me that Joe was sick with cancer. One of Joe’s biggest concerns was that he might die before he obtained life insurance or the 22 malpractice suit went through. He wanted all of that taken care of before he 23 passed. Joe and [Andriano] were trying to get a life insurance policy and they told me they were running into difficulties because of Joe’s cancer. . . . 24 25 (PCR pet., Ex. 31, ¶ 8; P-App. 2946.) 26 The PCR court found that Andriano failed to state a colorable claim of ineffective 27 assistance. (ME 10/30/12 at 5.) The court explained that “Gia Palicki’s purported testimony 28 relates to a conversation she had with [Andriano] and Joe in the summer or fall of 1999

- 120 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 121 of 143

1 and therefore was remote in time to the murder and would not have rebutted the defendant’s 2 later attempts to obtain life insurance for Joe without his knowledge.” (Id.) 3 This decision was neither contrary to nor an unreasonable application of clearly 4 established federal law, nor was it based on an unreasonable determination of the facts. 5 Palicki’s conversation with Joe about life insurance occurred shortly after she met 6 Joe, in the summer or fall of 1999. By contrast, Andriano made her clandestine attempts to 7 obtain life insurance approximately a year later, “during August and September of 2000.” 8 Andriano, 215 Ariz. at 502, 161 P.3d at 545. During this process she claimed that Joe did 9 not have cancer. Id. When an insurance agent contacted Joe in September 2000 in response 10 to one of Andriano’s inquiries, Joe stated he was not interested in applying. Id. Three days 11 later, Andriano emailed the agent asking him to reinstate Joe’s application and to contact 12 her with all future inquiries. Id. She also asked two friends to pose as Joe and take the 13 requisite physical exam in order to conceal Joe’s illness. Id. 14 Based on these circumstances, there is not a reasonable probability that Palicki’s 15 testimony would have changed the verdict. Andriano therefore cannot show prejudice from 16 counsel’s failure to present such evidence. The PCR court reasonably concluded that 17 Andriano failed to carry her burden under Strickland. 18 Andriano has not met her burden of showing “there was no reasonable basis for the 19 state court to deny relief.” Richter, 562 U.S. at 98; see Mirzayance, 556 U.S. at 123. Claim 20 19(D) is denied. 21 D. Limiting instruction 22 In Claim 19(E), Andriano alleges that trial counsel performed ineffectively by 23 failing to request a limiting instruction on the proper use of evidence of Andriano’s 24 extramarital relationships and attempts to obtain life insurance. (Doc. 17 at 190.) Andriano 25 did not raise this claim in state court. She contends that its default is excused under 26 Martinez, 566 U.S. 1, by the ineffective assistance of PCR counsel. (Id.) The Court 27 disagrees. 28

- 121 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 122 of 143

1 To excuse the claim’s default, Andriano must first show cause, which requires her 2 to demonstrate that PCR counsel’s performance in failing to raise the underlying claim was 3 ineffective under Strickland—a showing that “is necessarily connected to the strength of 4 the argument that trial counsel’s assistance was ineffective.” Ramirez, 937 F.3d at 1241. 5 Andriano cannot show that she was prejudiced by PCR counsel’s failure to raise the 6 underlying ineffectiveness claim, and therefore cannot demonstrate cause, because the 7 argument that trial counsel performed ineffectively here is weak. Assuming trial counsel 8 had moved for a limiting instruction and it had been granted, there was no reasonable 9 probability of a different verdict given the strength of the evidence against Andriano. 10 Because the underlying ineffective assistance of trial counsel claim was weak, there was 11 no probability of a different result during the PCR proceedings if PCR counsel had raised 12 it. See Clabourne, 745 F.3d at 377. 13 Andriano cannot show cause for the default of Claim 19(E). The claim remains 14 procedurally defaulted and barred from federal review. Alternatively, the Court finds the 15 claim meritless because Andriano cannot show she was prejudiced by trial counsel’s failure 16 to request a limiting instruction. See Musladin v. Lamarque, 555 F.3d 830, 847–48 (9th 17 Cir. 2009) (counsel’s failure to request a limiting instruction was deficient but not 18 prejudicial given the strong evidence of premeditation). 19 Claim 19(E) is denied. 20 E. Lesser-included offense jury instructions 21 In Claim 19(F), Andriano alleges that trial counsel performed ineffectively by 22 failing to seek a jury instruction on the lesser included offenses of second-degree murder 23 and manslaughter. (Doc. 17 at 193.) 24 Counsel did not request lesser-included-offense instructions. As already noted, the 25 Arizona Supreme Court held on direct appeal that the evidence did not support such 26 instructions. Andriano, 215 Ariz. at 504, 161 P.3d at 547. Nonetheless, in her PCR petition, 27 Andriano claimed that counsel performed ineffectively by failing to request the 28 instructions.

- 122 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 123 of 143

1 The PCR court rejected the claim: 2 As to the alleged failure to seek a jury instruction on lesser-included offenses, the defendant raised this issue on appeal and the Supreme Court held that the 3 evidence did not support any lesser-included offenses. Therefore, defense 4 counsel was not ineffective for failing to request such instructions. 5 (ME 10/30/12 at 5) (citation omitted). 6 This decision was neither contrary to nor an unreasonable application of clearly 7 established federal law. Because the Arizona Supreme Court determined that Andriano was 8 not entitled to lesser-included-offense instructions, counsel’s failure to request the 9 instructions was neither deficient nor prejudicial. See Rupe, 93 F.3d at 1445. Claim 19(F) 10 is denied. 11 F. Conclusion 12 For the reasons set forth above, Claims 19(B) through 19(F) are denied. The PCR 13 court did not unreasonably apply Strickland in denying the claims. Even assuming that 14 counsel’s performance was deficient, given the overwhelming evidence of her guilt 15 Andriano cannot show there was a reasonable probability of a different verdict if counsel 16 had performed competently. 17 18 CLAIM 20 19 Andriano alleges that counsel performed ineffectively during the aggravation phase 20 of her trial in violation of her Sixth and Fourteenth Amendment rights. (Doc. 17 at 197.) 21 This claim consists of four subclaims, two of which Andriano raised in state court, Claims 22 20(A) and (C). She did not raise Claims 20(B) and 20(D). She argues that their default is 23 excused under Martinez, 566 U.S. 1, by the ineffective assistance of PCR counsel. 24 A. Sodium azide evidence 25 In Claim 20(A), Andriano alleges that counsel’s failure to object to the jury’s 26 consideration of evidence related to the sodium azide poisoning constituted ineffective 27 assistance of counsel. (Doc. 17 at 198.) She argues that the sodium azide evidence was not 28 relevant because Joe died of blunt force injuries and stabbing wounds, not poisoning. (Id.

- 123 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 124 of 143

1 at 199.) She also argues that the evidence showed that she did not believe the sodium azide 2 would cause Joe to suffer and that Joe would have thought that any symptoms he 3 experienced were the result of his chemotherapy or cancer. (Id.) 4 At the aggravation stage of trial, the State presented evidence from a police detective 5 and the medical examiner. (RT 11/30/04 at 40–74.) The testimony was offered in support 6 of the especially cruel aggravating factor under § 13–751(F)(6). As discussed above, to 7 support a finding of cruelty, the prosecution must establish beyond a reasonable doubt that 8 the victim consciously suffered physical pain or mental anguish and that the defendant 9 knew or should have known that the victim would suffer. The testimony offered by the 10 State was intended to establish that Joe was conscious for a period of time while Andriano 11 struck him with the bar stool, as evidenced by defensive wounds on his hands. (Id. at 53– 12 58.) The State otherwise relied on the evidence presented at trial and argued that the jurors 13 should find the murder especially cruel based on the following circumstances: Andriano 14 administered the sodium azide to Joe, leaving him weak and sick; she gave Joe “false hope” 15 by pretending to call the paramedics, while preventing Chris and the paramedics from 16 entering the apartment; and she bludgeoned Joe repeatedly while he was still conscious. 17 (Id. at 18–31.) 18 The jurors unanimously found that the (F)(6) cruelty factor was proven. (ROA 393.) 19 On direct appeal, the Arizona Supreme Court independently found that cruelty was proven 20 beyond a reasonable doubt, relying on evidence that Joe suffered physically and mentally 21 from the effects of sodium azide and the blows from the bar stool. Andriano, 215 Ariz. at 22 511, 161 P.3d at 554. 23 In her PCR petition, Andriano alleged that counsel should have moved to preclude 24 the jurors from considering the effects of sodium azide in determining whether the 25 especially cruel aggravating factor was established. (PCR pet., Doc. 28-1, Ex. OOOOO at 26 56–59.) She asserted that the State had failed to prove conclusively how Joe came to ingest 27 the sodium azide and failed to rebut her argument that he had voluntarily consumed the 28 poisoned capsules. (Id.) The PCR court rejected this claim:

- 124 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 125 of 143

1 [T]rial counsel was not ineffective for failing to seek an order precluding the 2 jury from considering Joe’s ingestion of sodium azide in determining whether cruelty was established. The defendant did not contest the 3 admissibility of this evidence in the guilt phase because it played a key role in her self-defense theory. Pursuant to A.R.S. § 13–752(I), any evidence 4 admitted in the guilt phase is deemed admitted as evidence in the aggravation 5 phase. Thus, counsel could not allow evidence to be admitted in the guilt phase without objection and subsequently seek its preclusion in the 6 aggravation phase. 7 (ME 10/30/12 at 4–5.) 8 This decision was neither contrary to nor an unreasonable application of clearly 9 established federal law, nor was it based on an unreasonable determination of the facts. 10 As the PCR court explained, under Arizona law any evidence admitted in the guilt 11 phase is deemed admitted in the aggravation phase. A.R.S. § 13–752(I). Therefore, it would 12 have been futile for counsel to move to preclude the sodium azide evidence introduced at 13 the guilt phase of trial from consideration during the aggravation phase.41 Failure to raise 14 a meritless motion does not constitute ineffective assistance of counsel. See Rupe, 93 F.3d 15 at 1445; James, 24 F.3d at 27. 16 In addition, cruelty was established apart from Joe’s ingestion of sodium azide and 17 therefore Andriano cannot show that she was prejudiced by counsel’s performance on this 18 issue. Joe’s defensive wounds showed that he was conscious, but in a debilitated condition, 19 while Andriano bludgeoned him with the barstool. As the Arizona Supreme Court found 20 on independent review: 21 . . . Andriano struck her terminally ill husband at least twenty-three times in 22 the back of the head with a bar stool. Defensive wounds on Joe’s hands and wrists indicate that he was conscious for at least some of the attack and thus 23 knew his wife was attacking him as he lay on the floor, unable to defend 24 himself. Andriano also knew or should have known that beating her husband with a bar stool would cause him physical pain and mental anguish. 25 Andriano, 215 Ariz. at 511, 161 P.3d at 554. 26 27 41 The parties agree that the sodium azide evidence was integral to both the 28 prosecution and the defense theories of the case during the guilt phase of trial. (Doc. 17 at 199; Doc. 18 at 190.)

- 125 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 126 of 143

1 The court also rejected Andriano’s argument that mental anguish could not be 2 proved because “Joe did not know he was being poisoned.” Id. The court held that “a 3 victim’s knowledge of the source of physical pain . . . is not a requisite for a finding of 4 mental anguish,” and concluded that “on the facts of this case, mental anguish is established 5 even if Joe did not know he had been poisoned.” Id. 6 Under the “doubly deferential” deferential standard of review that applies to a 7 Strickland claim under the AEDPA, Mirzayance, 556 U.S. at 123, Claim 20(A) fails and 8 will be denied. See Richter, 562 U.S. at 98. 9 B. Juror misconduct 10 In Claim 20(B), Andriano alleges that counsel performed ineffectively by failing to 11 investigate and present evidence of juror misconduct. (Doc. 17 at 201–03.) Andriano 12 asserts that the jurors improperly considered her possible sentences when determining 13 whether the State had proven the (F)(6) aggravating factor. (Id.) Andriano did not raise this 14 claim in state court. The claim is therefore unexhausted and defaulted. See Coleman, 501 15 U.S. at 735 n.1; Ariz. R. Crim. P. 32.1(d)–(h); 32.2(a), (b). Andriano argues that the claim’s 16 default is excused under Martinez by the ineffective assistance of PCR counsel. (Doc. 17 17 at 201.) 18 The Court finds that Andriano has failed to establish that PCR counsel performed 19 ineffectively in failing to raise this claim; therefore, she has not shown cause for its default 20 under Martinez. Ramirez, 937 F.3d at 1241; Clabourne, 745 F.3d at 377. 21 After Andriano’s trial, the Arizona Republic newspaper published an article for 22 which a numbers of her jurors had been interviewed. (ROA 444A at 3.) According to the 23 article, one juror stated that “[w]hile jurors were discussing whether to execute Andriano, 24 they considered that they would have no control over whether the trial judge . . . would 25 give her life in prison with or without parole. . . . Jurors did not want to see a 25 years to 26 life sentence.” (Id. at 5.) The juror also told the reporter that “[w]e also knew with the death 27 penalty that she has an automatic appeal.” (Id.) 28

- 126 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 127 of 143

1 Citing the article, defense counsel filed a motion for a new penalty-phase hearing. 2 They argued that the article showed the coercive effect of the court’s impasse instruction 3 during deliberations, which caused the lone holdout juror to agree to a verdict of death. 4 (RT 2/4/05 at 6–8; ROA 444; ROA 444A.) In support of the motion, counsel cited the fact 5 that in reaching their penalty-phase verdict the jury had impermissibly considered 6 Andriano’s parole eligibility and her right to an automatic appeal. (RT 2/4/05 at 7–8.) The 7 trial court denied the motion. (ROA 448.) 8 PCR counsel interviewed the juror quoted in the article. She stated that “when we 9 decided on the aggravator, we talked about what might happen if we didn’t find an 10 aggravating circumstance.” (PCR Pet., Ex. 41, ¶ 6; P-App. 3038) The jurors “discussed 11 how [Andriano’s] sentencing would go back to the judge and agreed that none of us wanted 12 that. We talked about how we didn’t want to see Wendi get out of prison, and that was a 13 key reason why we decided on the cruelty aggravator.” (Id.) 14 Another juror recalled that “[d]uring deliberations at both the aggravation and 15 mitigation phases of the trial, we discussed what the possible outcome would be if the 16 aggravation outweighed the mitigation and vice versa. We considered what her punishment 17 would be.” (Id., Ex. 39, ¶ 8; P-App. 3029) 18 In her PCR petition, Andriano raised a claim alleging that the jurors had committed 19 misconduct by considering possible sentencing outcomes at the aggravation phase of her 20 trial. (PCR pet., Doc. 28-1, Ex. OOOOO at 69–70.) The court denied the claim on 21 procedural grounds, finding that the claim could have been raised earlier, including in a 22 motion for a new trial or in a motion to vacate the judgment. (ME 10/31/12 at 3.) 23 Andriano alleges that “trial counsel rendered ineffective assistance by failing to 24 investigate and challenge, in a post-trial motion, juror misconduct at the aggravation 25 phase.” (Doc. 17 at 202.) According to Andriano, “trial counsel was alerted to the fact that 26 Andriano’s possible parole eligibility had been considered at the penalty phase because the 27 newspaper article counsel relied on in the motion for a new penalty phase said as much.” 28 (Id.)

- 127 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 128 of 143

1 Respondents argue that because “this claim rests entirely on inadmissible statements 2 from jurors disclosing their deliberative process. . . , Andriano cannot show Strickland 3 prejudice.” (Doc. 22 at 193.) The Court agrees. 4 As discussed above and in the Court’s order on evidentiary development (Doc. 68 5 at 28), the information Andriano relies on to support this claim is barred from the Court’s 6 consideration under Rule 606(b)(1) of the Federal Rules of Evidence and Tanner, 483 U.S. 7 at 120. 8 Juror testimony cannot be used to impeach a verdict unless “extrinsic influence or 9 relationships have tainted the deliberations.” Tanner, 483 U.S. at 120. Rule 606(b)(1) 10 prohibits juror testimony “about any statement made or incident that occurred during the 11 jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any 12 juror’s mental processes concerning the verdict or indictment.” Fed. R. Evid. 606(b)(1). 13 The Rule further states that “[t]he court may not receive a juror’s affidavit or evidence of 14 a juror’s statement on these matters.” Id. As relevant here, the only exceptions are 15 questions of whether “extraneous prejudicial information was improperly brought to the 16 jury’s attention” or “outside influence was improperly brought to bear upon any juror.” 17 Fed. R. Evid. 606(b)(2). These exceptions are inapplicable to the information Andriano 18 relies on. 19 The jurors’ alleged discussion of sentencing outcomes did not involve extrinsic 20 evidence. See Raley v. Ylst, 470 F.3d 792, 803 (9th Cir. 2006) (“The fact that Petitioner did 21 not testify in his own defense is not extrinsic evidence. Although the jury’s discussion of 22 this issue clearly violated the trial court’s instructions, what happened (or did not happen) 23 in the courtroom was a part of the trial, not extrinsic to it.”) (citation omitted); Belmontes 24 v. Brown, 414 F.3d 1094, 1124 (9th Cir. 2005), rev’d on other grounds, Ayers v. 25 Belmontes, 549 U.S. 7 (2006) (explaining that jurors’ discussion of whether defendant 26 would be paroled was an “intrinsic jury process”). The jury did not learn information about 27 Andriano’s possible sentences “through outside contact, communication, or publicity,” and 28

- 128 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 129 of 143

1 the information “did not enter the jury room through an external, prohibited route.” United 2 States v. Rodriquez, 116 F.3d 1225, 1227 (8th Cir. 1997). 3 Because the information was part of the trial and not extrinsic, juror testimony about 4 their deliberations is prohibited under Rule 606(b). 5 Andriano contends that Rule 606(b) is “inapposite because Arizona Rule [of 6 Criminal Procedure] 24.1 governed state counsel’s actions and is less restrictive.” (Doc. 42 7 at 142.) This argument fails. 8 First, Rule 24.1(c) lists the grounds for a new trial based on juror misconduct. Not 9 included in that list is a jury’s consideration of possible punishments. Ariz. R. Crim. P. 10 24.1(c); see State v. Olague, 240 Ariz. 475, 481 n.4, 381 P.3d 269, 275 (App. 2016) 11 (“Although these comments ran afoul of the trial court’s clear instructions not to consider 12 possible punishments when deciding the case, a violation of jury instructions is not 13 included in the list of juror misconduct under Rule 24.1(c)(3) and consequently cannot 14 support a motion for new trial.”) (citing State v. Chaney, 141 Ariz. 295, 311, 686 P.2d 15 1265, 1281 (1984)). 16 In addition, at the time of Andriano’s trial, under Rule 24.1(d), “No testimony or 17 affidavit shall be received which inquires into the subjective motives or mental processes 18 which led a juror to assent or dissent from the verdict.” Ariz. R. Crim. P. 24.1(d).42 Again, 19 the information Andriano relies on concerns the jurors’ motives and mental processes. See, 20 e.g., State v. Spears, 184 Ariz. 277, 908 P.2d 1062 (1996) (finding that inquiry into 21 allegation that the jury discussed the defendant’s failure to testify “may have required an 22 improper inquiry into the mental processes of the jurors”); State v. Mauro, 159 Ariz. 186, 23 206, 766 P.2d 59, 79 (1988) (holding that a juror’s misunderstanding of the burden of proof 24 “relates to the juror’s mental processes”). 25 The juror information on which this claim of ineffective assistance of counsel is 26 based is inadmissible in state and federal court. In addition, there was no juror misconduct 27 42 Rule 24.1(d) now reads, “But the court may not receive testimony or an affidavit 28 that relates to the subjective motives or mental processes leading a juror to agree or disagree with the verdict.” Ariz. R. Crim. P. 24.1(d).

- 129 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 130 of 143

1 under Arizona law. See Ariz. R. Crim. P. 24.1(c); Olague, 240 Ariz. at 481 n.4, 381 P.3d 2 at 275. Raising such a claim would have been futile. See Rupe, 93 F.3d at 1445; James, 24 3 F.3d at 27. Accordingly, trial counsel did not perform ineffectively. 4 PCR counsel in turn did not perform ineffectively by failing to raise the underlying 5 claim of ineffective assistance of trial counsel. There is not a reasonable probability that 6 the result of the PCR proceedings would have been different if PCR counsel had raised the 7 claim. Ramirez, 937 F.3d at 1241; Clabourne, 745 F.3d at 377. Claim 20(B) therefore 8 remains procedurally defaulted and barred from federal review.43 9 C. Mental illness evidence 10 In Claim 20(C), Andriano alleges that trial counsel’s failure to investigate and 11 present expert testimony regarding Andriano’s mental illness constituted ineffective 12 assistance of counsel. (Doc. 17 at 204.) 13 With respect to the (F)(6) aggravating factor, the trial court instructed the jury that 14 in order to prove cruelty, the State had to show that Andriano “knew or should have known 15 that the manner in which the crime is committed would cause the victim to experience 16 physical pain and/or mental anguish before death.” (RT 12/1/04 at 91–92.) The court 17 further instructed the jury that the “heinous” or “depraved” aggravators “focus on a 18 defendant’s state of mind at the time of the offense.” (Id. at 92.) Andriano alleges that 19 counsel performed ineffectively by failing to present mental health evidence to rebut the 20 state-of mind elements of the aggravating factor. (Doc. 17 at 206.) 21 In her PCR petition, Andriano argued that counsel was ineffective for failing to 22 present evidence of her alleged mental illness to show that she “did not know or have the 23 capacity to know that her actions would cause Joe to suffer (rather than alleviate) further 24 physical pain or mental illness.” (PCR pet., Doc. 28-1, Ex. OOOOO at 55.) She relied on 25 26 27 43 In Claim 11, Andriano alleged that the jurors engaged in misconduct by considering sentencing outcomes during their aggravation-phase deliberations. (Doc. 17 at 28 134–37.) The Court previously found the claim procedurally defaulted and barred from federal review. (Doc. 68 at 13.)

- 130 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 131 of 143

1 expert reports opining that, due to her “dependence needs” and other factors, she believed 2 she was helping Joe by killing him. (Id.) The PCR court rejected the claim on the merits: 3 [T]he defendant alleges that her trial counsel was ineffective in the 4 aggravation phase by failing to investigate and present expert testimony regarding her mental illness and by failing to object to the jury’s 5 consideration of evidence related to sodium azide poisoning. The Court finds 6 these claims are not colorable. As noted, the sole aggravator was “especially cruel.” This aggravator focuses on the physical and mental suffering of the 7 victim rather than on the actions or mental state of the defendant. It is 8 determined by reference to an objective standard, and whether the defendant was aware or should have been aware of the victim’s suffering is judged from 9 the perspective of a reasonable person in the defendant’s position. State v. 10 Carlson, 202 Ariz. 570, ¶ 44, 58 P.3d 1180 (2002) (“Foreseeability in connection with the cruelty factor has been based on an objective rather than 11 subjective standard. We have held that the physical pain or mental anguish suffered by a victim before death must only be reasonably foreseeable, 12 regardless of whether the defendant actually foresaw it. State v. Djerf, 191 13 Ariz. 583, 595 ¶ 45, 959 P.2d 1274, 1286 ¶ 45 (1998); State v. Adamson, 136 Ariz. 250, 255, 665 P.2d 972, 988 (1983).”). Thus, the defendant’s mental 14 health evidence would not have been relevant or admissible in the 15 aggravation phase and trial counsel was not ineffective for failing to present it. 16 17 (ME 10/30/12 at 4.) 18 This decision was neither contrary to nor an unreasonable application of clearly 19 established federal law. The PCR court found, under Arizona law, that mental health 20 evidence would have been irrelevant and inadmissible in the aggravation phase. See 21 Estelle, 502 U.S. at 67–68 (“[It is not the province of a federal habeas court to reexamine 22 state-court determinations on state-law questions.”). Specifically, the court explained that 23 Arizona law defines cruelty by an objective standard. The question of whether the 24 defendant was aware or should have been aware of the victim’s suffering is judged from 25 the perspective of a reasonable person in the defendant’s position. See State v. Allen, 248 26 Ariz. 352, 460 P.3d 1236, 1246 (2020) (“Whether Allen should have known [the victim] 27 would suffer based on the information at hand is an objective inquiry.”); Carlson, 202 Ariz. 28 at 582, 48 P.3d at 1192.

- 131 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 132 of 143

1 Because Arizona law precludes the omitted evidence at the aggravation phase, 2 counsel did not perform deficiently by failing to offer it. See Rupe, 93 F.3d at 1445; 3 James, 24 F.3d at 27. 4 Even if admissible, the mental health evidence does not establish that Andriano 5 could not reasonably have known that Joe would suffer physical pain or mental anguish 6 while being beaten repeatedly with a barstool after being poisoned. 7 Andriano contends that her mental health evidence was admissible to challenge the 8 state of mind elements of the heinous and depraved aggravators, which the prosecution 9 also alleged along with cruelty. (Doc. 17 at 207.) The jury, however, did not find that the 10 heinous or depraved factors had been proved. This defeats Andriano’s claim that she was 11 prejudiced by counsel’s failure to challenge the aggravators with mental health evidence. 12 Accordingly, under the “doubly deferential” standard of review that applies to a 13 Strickland claim under the § 2254(d)(1), Mirzayance, 556 U.S. at 123, Claim 20(C) fails 14 and will be denied. See Richter, 562 U.S. at 98. 15 D. Pecuniary gain aggravating factor 16 Andriano alleges that counsel performed ineffectively by failing to properly move 17 for the dismissal of the pecuniary gain aggravating circumstance. (Id. at 207.) Andriano 18 did not raise this claim in state court. The claim is therefore unexhausted and defaulted. 19 See Coleman, 501 U.S. at 735 n.1; Ariz. R. Crim. P. 32.1(d)–(h); 32.2(a), (b). Andriano 20 argues that the claim’s default is excused under Martinez by the ineffective assistance of 21 PCR counsel. (Doc. 17 at 207.) The Court finds that Andriano has failed to establish that 22 PCR counsel performed ineffectively in failing to raise this claim; therefore, she has not 23 shown cause for its default under Martinez. 24 During the aggravation phase of trial, the prosecutor relied on the guilt-phase 25 evidence, including evidence of Andriano’s attempt to obtain a life insurance policy on 26 Joe, to argue that the pecuniary gain factor was established. At the close of evidence, 27 defense counsel moved for judgment of acquittal on the pecuniary gain factor. (RT 28

- 132 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 133 of 143

1 11/30/04 at 77–97.) The trial court denied the motion. (Id. at 99.) The jury, however, found 2 that the factor was not proven. (ROA 393.) 3 Andriano argues that counsel should have moved to dismiss the pecuniary gain 4 allegation before the aggravation phase of trial. (Doc. 17 at 207–10.) She contends that 5 counsel’s failure to do so enabled the prosecutor to “emphasize Andriano’s greed and 6 dishonesty,” which “tainted” the jurors’ consideration of the cruelty factor. (Id. at 209–10.) 7 There is not a reasonable probability that the result of the PCR proceedings would 8 have been different if PCR counsel had raised this claim of ineffective assistance of trial 9 counsel. Ramirez, 937 F.3d at 1241; Clabourne, 745 F.3d at 377. First, the jurors rejected 10 the pecuniary gain factor. (ROA 393.) Andriano therefore cannot show prejudice from the 11 factor’s submission to the jury. If, as Andriano contends, the prosecutor’s characterization 12 of her as greedy and dishonest tainted the jury’s deliberations during the aggravation phase, 13 the jury presumably would have found the other aggravators had been proved. It did not. 14 In addition, the State did not introduce any evidence supporting the pecuniary gain 15 factor that had not already been presented during the guilt phase of trial. Therefore, 16 submitting the pecuniary gain factor at the aggravation stage did not enable the jury to 17 consider any evidence that was not previously admitted. 18 Finally, the jurors were instructed that the prosecutor’s arguments are not evidence. 19 (ROA 383 at 4.) Jurors are presumed to follow the court’s instructions. See Weeks, 528 20 U.S. at 234; Leavitt, 383 F.3d at 834. 21 PCR counsel did not perform ineffectively by failing to raise this claim. Ramirez, 22 937 F.3d at 1241; Clabourne, 745 F.3d at 377. Accordingly, Claim 20(D) remains 23 defaulted and barred from federal review. 24 E. Conclusion 25 For the reasons just discussed, Andriano’s allegation of ineffective assistance of 26 counsel at the aggravation phase of trial are either meritless or procedurally defaulted and 27 barred from federal review. Claim 20 is denied. 28 CLAIM 21

- 133 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 134 of 143

1 Andriano alleges that her Sixth Amendment right to the effective assistance of 2 appellate counsel was violated by counsel’s failure to raise meritorious claims on direct 3 appeal. (Doc. 17 at 210.) She cites 10 instances of ineffective assistance of appellate 4 counsel. (Id. at 212–20.) 5 The Court previously dismissed three of these claims: 21(C), (D), and (E). (Doc. 68 6 at 29.) Of the remaining claims, Claims 21(F) through 21(J) were not raised in state court.44 7 Martinez does not apply to excuse the procedural default of claims of ineffective assistance 8 of appellate counsel. Davila, 137 S. Ct. at 2062–63. Therefore, the claims remain defaulted 9 and barred from federal review. 10 The Court addresses the remaining claims, Claims 21(A) and (B), as follows. 11 Claims of ineffective assistance of appellate counsel are evaluated under the 12 Strickland standard. See Moormann, 628 F.3d at 1106. A petitioner must show that counsel 13 acted unreasonably in failing to discover and brief a merit-worthy issue and demonstrate a 14 reasonable probability that, but for appellate counsel’s failure to raise the issue, she would 15 have prevailed in her appeal. Id. 16 In Claim 21(A), Andriano alleges that appellate counsel performed ineffectively by 17 failing to raise the issue of DeLozier’s “actual conflict of interest.” (Doc. 17 at 212.) The 18 PCR court rejected the claim on the merits, finding that appellate counsel did not perform 19 ineffectively because he could not have raised the conflict-of-interest claim on appeal 20 because it had not been raised at trial and depended on extra-record facts. (ME 10/30/12 at 21 6.) 22 Andriano does not challenge the PCR court’s ruling (see Doc. 17 at 212) and 23 therefore has not demonstrated that the rejection of the claim was contrary to or an 24 44 25 Andriano alleged that appellate counsel performed ineffectively by failing to challenge the admission of unreliable scientific evidence, Claim 21(F); failing to challenge 26 the trial court’s improper limitations on voir dire and rehabilitation of jurors, 21(G); failing to correct the Arizona Supreme Court’s reliance on facts not in evidence, 21(H); failing to 27 argue that execution of Andriano after years spent on death row would be cruel and unusual 28 punishment, 21(I); and failing to challenge Arizona’s jury selection process as unconstitutional, 21(J). (Doc. 17 at 218–20.)

- 134 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 135 of 143

1 unreasonable application of clearly established federal law, or based on an unreasonable 2 determination of the facts. Moreover, as described above, the conflict of interest claim fails 3 on the merits, so appellate counsel did not perform ineffectively by failing to raise it. See 4 Wildman, 261 F.3d at 840. Claim 21(A) is denied. 5 In Claim 21(B), Andriano alleges that appellate counsel failed to challenge the trial 6 court’s improper exclusion of relevant, admissible testimony of Joe Andriano’s mental 7 state. (Doc. 17 at 213.) The PCR court denied this claim on the merits, finding that the 8 proposed “testimony would have elicited inadmissible hearsay” and, therefore, “the 9 [Arizona] Supreme Court would have found no error in this Court’s ruling.” (ME 10/30/12 10 at 6.) 11 This decision was neither contrary to nor an unreasonable application of clearly 12 established federal law, nor was it based on an unreasonable determination of the facts. 13 The evidence at issue—Joe’s statements to Miller about his, Joe’s, state of mind—was 14 inadmissible hearsay under state law. Estelle, 502 U.S. at 67–68. As the PCR court found, 15 appellate counsel did not perform ineffectively by failing to raise this claim. See Wildman, 16 261 F.3d at 840. Claim 21(B) is denied. 17 CLAIM 23 18 Andriano alleges that the death penalty violates her rights under the Eighth and 19 Fourteenth Amendments because it is irrationally and arbitrarily imposed and serves no 20 purpose that is not adequately addressed by life in prison. (Doc. 17 at 223.) The Arizona 21 Supreme Court’s denial of this claim, Andriano, 215 Ariz. at 513, 161 P.3d at 556, was 22 neither contrary to nor an unreasonable application of clearly established federal law.45 23 Andriano cites no clearly established federal law in support of her argument, and 24 the cases are to the contrary. See Walton, 497 U.S. at 655–56; Smith, 140 F.3d at 1272; 25 45 Andriano contends that the Arizona Supreme Court did not address the claim on 26 the merits and therefore its decision is not entitled to deference under the AEDPA. (Doc. 17 at 223–24.) She is incorrect. In the appendix to its opinion, the court denied Andriano’s 27 various challenges to the constitutionality of Arizona’s death penalty scheme, Andriano, 215 Ariz. at 513, 161 P.3d at 556, including the claims raised as Claims 23 through 33 in 28 her habeas petition. See Richter, 562 U.S. at 99–100 (explaining that AEDPA deference applies even where state court provided no reason for its decision).

- 135 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 136 of 143

1 Roseberry v. Ryan, No. 15-CV-1507-PHX-NVW, 2019 WL 3556932 at *37 (D.AZ. 2 August 5, 2019). Claim 23 is denied. 3 CLAIM 24 4 Andriano alleges that application of the death penalty on the facts of her case would 5 constitute cruel and unusual punishment in violation of the Eighth and Fourteenth 6 Amendments. (Doc. 17 at 225.) She asserts that her death sentence is unconstitutional 7 because the Arizona Supreme Court “failed to conduct a comparative proportionality 8 review of Andriano’s death sentence.” (Id. at 226.) The Arizona Supreme Court’s denial 9 of this claim, Andriano, 215 Ariz. at 513, 161 P.3d at 556, was neither contrary to nor an 10 unreasonable application of clearly established federal law. 11 Proportionality review of death sentences is not constitutionally required. See 12 McCleskey v. Kemp, 481 U.S. 279, 306 (1987) (citing Pulley v. Harris, 465 U.S. 37, 43 13 (1984)); Allen, 395 F.3d at 1018. Moreover, while “meaningful appellate review” is 14 necessary to ensure that the death penalty is not imposed in an arbitrary or irrational 15 fashion, Pulley, 465 U.S. at 54 (Stevens, J., concurring); Parker v. Dugger, 498 U.S. 308, 16 321 (1991), the Supreme Court has never held that “independent” or “de novo” review of 17 death sentences is constitutionally mandated. See also Walton, 497 U.S. at 655–56. The 18 Constitution requires only that an appellate court “consider whether the evidence is such 19 that the sentencer could have arrived at the death sentence that was imposed,” not whether 20 the appellate court itself would have imposed a death sentence. Clemons v. Mississippi, 21 494 U.S. 738, 749 (1990). Claim 24 is not supported by clearly established federal law and 22 is denied. 23 CLAIM 25 24 Andriano alleges that Arizona’s capital-sentencing scheme violates the Eighth and 25 Fourteenth Amendments because it affords the prosecutor unbridled discretion to seek the 26 death penalty. (Doc. 17 at 227.) The Arizona Supreme Court’s denial of this claim, 27 Andriano, 215 Ariz. at 513, 161 P.3d at 556, was neither contrary to nor an unreasonable 28 application of clearly established federal law.

- 136 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 137 of 143

1 The Supreme Court has held that prosecutors have wide discretion in making the 2 decision whether to seek the death penalty. See McCleskey, 481 U.S. at 296–97; Gregg v. 3 Georgia, 428 U.S. 153, 199 (1976) (holding that pre-sentencing decisions by actors in the 4 criminal justice system that may remove an accused from consideration for the death 5 penalty are not unconstitutional). In Smith, the Ninth Circuit rejected the argument that 6 Arizona’s death penalty statute is constitutionally infirm because “the prosecutor can 7 decide whether to seek the death penalty.” 140 F.3d at 1272. Claim 25 is denied. 8 CLAIM 26 9 Andriano alleges that her rights under the Fifth, Sixth, Eighth, and Fourteenth 10 Amendments were violated because the aggravating factors alleged by the State were not 11 supported by findings of probable cause at the indictment stage. (Doc. 17 at 228.) The 12 Arizona Supreme Court’s denial of this claim, Andriano, 215 Ariz. at 513, 161 P.3d at 556, 13 was neither contrary to nor an unreasonable application of clearly established federal law. 14 The Supreme Court has held that facts constituting the elements of an offense rather than 15 just a sentencing enhancement must be charged in a federal indictment. See Jones v. United 16 States, 526 U.S. 227, 251–52 (1999). However, the Fifth Amendment Due Process Clause 17 does not incorporate the same requirements into state criminal prosecutions by virtue of 18 the Fourteenth Amendment. See Hurtado v. California, 110 U.S. 516, 538 (1884); see also 19 Branzburg v. Hayes, 408 U.S. 665, 688 n.25 (1972). Because states are not required by the 20 Constitution to empanel grand juries for purposes of indictment, they are not required to 21 specify aggravating factors in an indictment. See, e.g., Moeller v. Weber, 635 F. Supp. 2d 22 1036, 1063 (D.S.D. 2009), order amended on denial of reconsideration, No. CIV. 04- 23 4200, 2010 WL 9519011 (D.S.D. Apr. 9, 2010), aff’d, 649 F.3d 839 (8th Cir. 2011). Claim 24 26 is denied. 25 CLAIM 27 26 Andriano alleges that the application of Arizona’s newly-enacted death penalty 27 statute, promulgated after Ring, violated the ex post facto doctrine. (Doc. 17 at 229.) The 28 Arizona Supreme Court’s denial of this claim, Andriano, 215 Ariz. at 513, 161 P.3d at 556,

- 137 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 138 of 143

1 was neither contrary to nor an unreasonable application of clearly established federal law. 2 Andriano committed the murder on October 8, 2000. On June 24, 2002, the United 3 States Supreme Court invalidated Arizona’s death penalty scheme under which judges 4 rather than juries found the facts making a defendant eligible for the death penalty. Ring v. 5 Arizona (Ring I), 536 U.S. 584 (2002). 6 In denying this claim, the Arizona Supreme Court cited its opinion in State v. Ring 7 (Ring II), 204 Ariz. 534, 545–47, 65 P.3d 915, 926–28 (2003), holding that the Ex Post 8 Facto Clause did not prohibit the resentencing of capital defendants after Ring I because 9 the new statute provided for only procedural changes and did not place defendants in 10 jeopardy of a greater punishment. Andriano, 215 Ariz. at 513, 161 P.3d at 556 11 The ex post facto doctrine prohibits a state from “retroactively alter[ing] the 12 definitions of crimes or increas[ing] the punishment for criminal acts.” Collins v. 13 Youngblood, 497 U.S. 37, 43 (1990). “[A]ny statute which punishes as a crime an act 14 previously committed, which was innocent when done; which makes more burdensome the 15 punishment for a crime, after its commission, or which deprives one charged with crime of 16 any defense available according to law at the time when the act was committed, is 17 prohibited as ex post facto.” Dobbert v. Florida, 432 U.S. 282, 292 (1977) (quoting Beazell 18 v. Ohio, 269 U.S. 167, 169–70 (1925)). 19 In Dobbert, the defendant was sentenced to death in Florida under a capital 20 sentencing system that was subsequently declared unconstitutional. 432 U.S. at 288. 21 Dobbert argued that he could not be sentenced to death under the amended Florida 22 procedures because at the time of his original sentencing the death penalty was not an 23 available punishment. Id. at 297. The Supreme Court rejected the argument and held that 24 there was no ex post facto violation because the changes in Florida’s statute were “clearly 25 procedural.” Id. at 293. “The new statute simply altered the methods employed in 26 determining whether the death penalty was to be imposed; there was no change in the 27 quantum of punishment attached to the crime.” Id. at 293–94. 28

- 138 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 139 of 143

1 Under Dobbert, the post-Ring procedural changes in Arizona’s death penalty are not 2 ex post facto laws. See Schriro v. Summerlin, 542 U.S. 348, 353–54 (2004) (“Ring’s 3 holding is properly classified as procedural.”). 4 Andriano’s argument is not distinguishable from the claim rejected in Dobbert, 5 where the defendant contended there was “no death penalty ‘in effect’ in Florida” when he 6 committed the murders. 432 U.S. at 297. The Court responded that “this sophistic argument 7 mocks the substance of the Ex Post Facto Clause.” Id. Similarly, the statute in place at the 8 time Andriano committed the murder and the statute enacted after Ring I provided for the 9 same quantum of punishment. While Ring I invalidated the procedure by which the death 10 penalty was imposed in Arizona, it did not eliminate the death penalty as a possible 11 sentence for first-degree murder. Claim 27 is denied. 12 CLAIM 28 13 Andriano alleges that Arizona’s capital-sentencing scheme violates the Fifth, 14 Eighth, and Fourteenth Amendments because it denies capital defendants the benefit of 15 proportionality review of their sentences. (Doc. 17 at 232.) The Arizona Supreme Court’s 16 denial of this claim, Andriano, 215 Ariz. at 513, 161 P.3d at 556, was neither contrary to 17 nor an unreasonable application of clearly established federal law. 18 As noted above, there is no federal constitutional right to proportionality review of 19 a death sentence. McCleskey, 481 U.S. at 306 (citing Pulley, 465 U.S. at 43). The Arizona 20 Supreme Court discontinued the practice in 1992. State v. Salazar, 173 Ariz. 399, 417, 844 21 P.2d 566, 584 (1992). The Ninth Circuit has explained that the “substantive right to be free 22 from a disproportionate sentence” is protected by the application of “adequately narrowed 23 aggravating circumstance[s].” Ceja v. Stewart, 97 F.3d 1246, 1252 (9th Cir. 1996). Claim 24 28 is denied. 25 CLAIM 29 26 Andriano alleges that Arizona’s capital-sentencing scheme is unconstitutional 27 because it does not require the State to prove that the death penalty is appropriate by 28 imposing a beyond-a reasonable-doubt standard of proof at the penalty phase of trial. (Doc.

- 139 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 140 of 143

1 17 at 233, 234.) The Arizona Supreme Court’s denial of this claim, Andriano, 215 Ariz. at 2 513, 161 P.3d at 556, was neither contrary to nor an unreasonable application of clearly 3 established federal law. 4 The Constitution does not require that a death penalty statute set forth specific 5 standards for a capital sentencer to follow in its consideration of aggravating and mitigating 6 circumstances. See Zant, 462 U.S. at 875 n.13 (explaining that “specific standards for 7 balancing aggravating against mitigating circumstances are not constitutionally 8 required”); see also Tuilaepa, 512 U.S. at 979–80 (“A capital sentencer need not be 9 instructed how to weigh any particular fact in the capital sentencing decision.”). In Marsh, 10 the Court explained: 11 In aggregate, our precedents confer upon defendants the right to present 12 sentencers with information relevant to the sentencing decision and oblige sentencers to consider that information in determining the appropriate 13 sentence. The thrust of our mitigation jurisprudence ends here. “[W]e have 14 never held that a specific method for balancing mitigating and aggravating factors in a capital sentencing proceeding is constitutionally required.” 15 16 548 U.S. at 175 (2006) (quoting Franklin, 487 U.S. at 179).

17 Accordingly, the Constitution does not require the capital sentencer to find that the

18 aggravating circumstances outweigh mitigation beyond a reasonable doubt. See Smith, 140

19 F.3d at 1272 (summarily rejecting claim based on failure to apply beyond a reasonable

20 doubt standard at sentencing); Williams v. Calderon, 52 F.3d 1465, 1485 (9th Cir. 1995)

21 (“[T]he failure of the statute to require a specific finding that death is beyond a reasonable

22 doubt the appropriate penalty does not render it unconstitutional.”). Claim 29 is denied.

23 CLAIM 30

24 Andriano alleges that Arizona’s capital-sentencing scheme violates the Eighth and

25 Fourteenth Amendments because it does not provide objective standards to guide the

26 sentencer in weighing the aggravating factors against the mitigating circumstances. (Doc.

27 17 at 235.) The Arizona Supreme Court’s denial of this claim, Andriano, 215 Ariz. at 513,

28 161 P.3d at 556, was neither contrary to nor an unreasonable application of clearly

- 140 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 141 of 143

1 established federal law. The Supreme Court has held that in a capital case “the sentencer 2 may be given ‘unbridled discretion in determining whether the death penalty should 3 be imposed after it has found that the defendant is a member of the class made eligible for 4 that penalty.’” Tuilaepa, 512 U.S. at 979–80 (quoting Zant, 462 U.S. at 875); see Franklin, 5 487 U.S. at 179 (“[W]e have never held that a specific method for balancing mitigating and 6 aggravating factors in a capital sentencing proceeding is constitutionally required.”). Claim 7 30 is denied. 8 CLAIM 32 9 Andriano alleges that execution by lethal injection is cruel and unusual punishment. 10 (Doc. 17 at 239.) Andriano does not indicate how the Arizona Supreme Court’s denial of 11 this claim, 215 Ariz. at 513, 161 P.3d at 556, conflicts with or unreasonably applies 12 controlling Supreme Court law. See, e.g., Baze v. Rees, 553 U.S. 35 (2008). Moreover, the 13 Ninth Circuit has concluded that Arizona’s lethal injection protocol does not violate the 14 Eighth Amendment. Dickens v. Brewer, 631 F.3d 1139 (9th Cir. 2011). 15 In addition, prior to execution, Andriano may present this claim in a separate civil 16 rights action under 42 U.S.C. § 1983. See Hill v. McDonough, 547 U.S. 573, 579–80, 17 (2006) (recognizing that a challenge to the State’s execution method may be brought in a 18 § 1983 action). Claim 32 is denied. 19 CLAIM 33 20 Andriano alleges that Arizona’s capital-sentencing scheme violates the Eighth and 21 Fourteenth Amendments because it requires a death sentence whenever one aggravating 22 circumstance and no mitigating circumstances are found with respect to an eligible 23 defendant. (Doc. 17 at 246.) The Arizona Supreme Court’s denial of this claim, Andriano, 24 215 Ariz. at 513, 161 P.3d at 556, was neither contrary to nor an unreasonable application 25 of clearly established federal law. 26 Arizona’s death penalty scheme allows certain, statutorily-defined aggravating 27 factors to be considered in determining eligibility for the death penalty. For death to be an 28 appropriate sentence, at least one aggravating factor must be found and the court must

- 141 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 142 of 143

1 determine that the mitigating circumstances do not warrant a lesser sentence. Again, this 2 scheme has been found constitutionally sufficient. See Jeffers, 497 U.S. at 774–77; Walton, 3 497 U.S. at 649–56; Woratzeck v. Stewart, 97 F.3d 329, 334–35 (9th Cir. 1996); see also 4 Smith, 140 F.3d at 1272. Claim 33 is denied. 5 CLAIM 34 6 Andriano alleges that she will be denied a fair clemency process in violation of the 7 Eighth and Fourteenth Amendments. (Doc. 17 at 247.) 8 This claim is not cognizable on federal habeas review. Habeas relief may only be 9 granted on claims that a prisoner “is in custody in violation of the Constitution or laws or 10 treaties of the United States.” 28 U.S.C. § 2254(a). Andriano’s challenge to state clemency 11 procedures and proceedings does not represent an attack on her detention and thus does not 12 constitute a proper ground for relief. See Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 13 1989) (per curiam); see also Woratzeck v. Stewart, 118 F.3d 648, 653 (1997). Claim 34 is 14 denied. 15 IV. CERTIFICATE OF APPEALABILITY 16 Pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure, a petitioner 17 cannot take an appeal unless a certificate of appealability has been issued by an appropriate 18 judicial officer. Rule 11(a) of the Rules Governing Section 2254 Cases provides that the 19 district judge must either issue or deny a certificate of appealability when it enters a final 20 order adverse to the applicant. If a certificate is issued, the court must state the specific 21 issue or issues that satisfy 28 U.S.C. § 2253(c)(2). 22 Under § 2253(c)(2), a certificate of appealability may issue only when the petitioner 23 “has made a substantial showing of the denial of a constitutional right.” This showing can 24 be established by demonstrating that “reasonable jurists could debate whether (or, for that 25 matter, agree that) the petition should have been resolved in a different manner” or that the 26 issues were “adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 27 529 U.S. 473, 484 (2000). For procedural rulings, a certificate of appealability will issue 28 only if reasonable jurists could debate whether the petition states a valid claim of the denial

- 142 - Case 2:16-cv-01159-SRB Document 70 Filed 01/19/21 Page 143 of 143

1 of a constitutional right and whether the court’s procedural ruling was correct. Id. 2 The Court finds that reasonable jurists could debate its resolution of Claim 1, 3 alleging prosecutorial misconduct; Claim 2, alleging a conflict of interest; and Claim 3(A), 4 alleging ineffective assistance of counsel at sentencing. 5 V. CONCLUSION 6 The Court has considered Andriano’s claims and determined that none establish 7 entitlement to habeas relief. 8 Based on the foregoing, 9 IT IS HEREBY ORDERED that Andriano’s Petition for Writ of Habeas Corpus 10 (Doc. 17) is DENIED. The Clerk of Court shall enter judgment accordingly. 11 IT IS FURTHER ORDERED granting a certificate of appealability with respect 12 to Claims 1, 2, and 3(A). 13 IT IS FURTHER ORDERED that the Clerk of Court forward a courtesy copy of 14 this Order to the Clerk of the Arizona Supreme Court, 1501 W. Washington, Phoenix, AZ 15 85007-3329. 16 17 Dated this 19th day of January, 2021. 18 19 20 21 22 23 24 25 26 27 28

- 143 -