Boggs v. Shinn

• Court: District Court, D. Arizona
• Decided: March 27, 2020
• Docket: 2:14-cv-02165
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Steve Alan Boggs, No. CV-14-02165-PHX-GMS 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 Steve Alan 16 Boggs, an Arizona death row inmate. (Doc. 48.) Respondents filed an answer and Boggs 17 filed a reply. (Docs. 21, 26.) For the reasons set forth below, and based on the Court’s 18 review of the briefings and the entire record herein, the petition is denied. 19 I. BACKGROUND 20 In 2002, Boggs and Christopher Hargrave robbed a fast food restaurant and shot 21 three employees to death. In 2005, Boggs was found guilty of three counts of first-degree 22 murder, among other counts, and sentenced to death. The following facts are taken from 23 the opinion of the Arizona Supreme Court upholding the convictions and sentences. State 24 v. Boggs, 218 Ariz. 325, 185 P.3d 111 (2008). 25 On May 19, 2002, police officers responded to a 911 call from a Jack in the Box 26 restaurant in Mesa. The first officer to arrive found one of the restaurant’s employees, 27 Beatriz Alvarado, lying on the ground outside the back door. She repeatedly asked for help 28 before dying from two gunshot wounds to her back. Inside the restaurant, officers found 1 the body of another employee, Fausto Jimenez, next to a telephone. Jimenez had been shot 2 three times in the back but managed to dial 911 shortly before dying from his wounds. In 3 the freezer was the body of a third employee, Kenneth Brown, who had died from two 4 gunshot wounds. Police found shell casings and bullets in the freezer. Two cash registers 5 were opened and contained only coins. A third register appeared as if someone had tried to 6 pry it open. Jimenez and Brown were missing their wallets. 7 The next night, Hargrave, a friend of Boggs’s who had recently been fired from the 8 restaurant, tried to use Jimenez’s bank card at an ATM. 9 Two days after the murders, Boggs traded in a Taurus handgun at a pawnshop. 10 Police recovered the weapon and determined that it had fired all of the shell casings and 11 bullet fragments found at the scene, including fragments found in the victims’ bodies. 12 During interviews with Detective Donald Vogel, Boggs “confessed to playing an 13 active role in the robbery and admitted shooting at the victims.” Boggs, 218 Ariz. at 331, 14 185 P.3d at 117. He described the murders in detail, explaining that “the victims were 15 forced at gunpoint to lie down in the work area of the restaurant, ordered to remove 16 everything from their pockets, ordered to march through the cooler into the back freezer 17 with their hands interlaced on top of their heads, forced to kneel down, and then shot in 18 rapid succession.” Id. at 341, 185 P.3d at 127. Boggs also told police that after they left the 19 victims in the freezer, he and Hargrave heard screaming, “at which point he returned to the 20 freezer and shot some more.” Id. 21 Boggs and Hargrave were involved in a white supremacist “militia” they called the 22 Imperial Royal Guard. They and their girlfriends were the only members. In a letter to a 23 Detective Vogel, written after his confession, Boggs explained that his motive for the 24 murders was racial rather than pecuniary. 25 Prior to trial, Boggs waived his right to counsel and represented himself. He 26 relinquished his right to self-representation after several days of jury selection, and his 27 advisory counsel took over his defense. Boggs moved to resume self-representation 28

-2- 1 between the aggravation and penalty phases of trial, but the court denied his request. The 2 jury found Boggs guilty of all charged crimes. 3 At sentencing, the jury found three aggravating factors for each of the murders: 4 expectation of pecuniary gain, under A.R.S. § 13–703(F)(5); the murders were committed 5 in an especially heinous, cruel or depraved manner, under § 13–703(F)(6); and a conviction 6 for one or more other homicides during the commission of the offense, under § 13– 7 703(F)(8).1 The defense presented mitigation evidence concerning Boggs’s troubled 8 childhood and mental health issues. At the close of the trial, the jury found that Boggs’s 9 mitigation was not sufficiently substantial to call for leniency and concluded that death was 10 the appropriate sentence for each murder. 11 The Arizona Supreme Court affirmed the convictions and sentences. Boggs, 218 12 Ariz. 325, 185 P.3d 111. After unsuccessfully pursuing post-conviction relief (“PCR”), 13 Boggs filed a petition for writ of habeas corpus in this Court. (Doc. 15.) The Court 14 previously granted in part and denied in part Boggs’s motion for evidentiary development. 15 (Doc. 67.) The Court also denied Claims 1, 2, 4 (in part), 7, 8, 12(A), 15 (in part), 17, 18, 16 22, 24, 26, 28, 30, 40, and 43. (Id.) 17 II. APPLICABLE LAW 18 A. AEDPA 19 Federal habeas claims are analyzed under the framework of the Antiterrorism and 20 Effective Death Penalty Act (“AEDPA”). Pursuant to the AEDPA, a petitioner is not 21 entitled to habeas relief on any claim adjudicated on the merits in state court unless the 22 state court’s adjudication (1) resulted in a decision that was contrary to, or involved an 23 unreasonable application of, clearly established federal law or (2) resulted in a decision 24 that was based on an unreasonable determination of the facts in light of the evidence 25 presented in state court. 28 U.S.C. § 2254(d). 26 27 1 At the time of Boggs’s offense, Arizona’s capital sentencing scheme was set forth in A.R.S. §§ 13–703 and 13–703.01 to –703.04. It is presently set forth in A.R.S. §§ 13– 28 751 to –759. The Court refers throughout this order to the statutes in effect at the time Boggs committed the murders.

-3- 1 The Supreme Court has emphasized that “an unreasonable application of federal 2 law is different from an incorrect application of federal law.” Williams (Terry) v. Taylor, 3 529 U.S. 362, 410 (2000) (O’Conner, J., concurring). Under § 2254(d), “[a] state court’s 4 determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded 5 jurists could disagree’ on the correctness of the state court’s decision.” Harrington v. 6 Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 7 (2004)). The burden is on the petitioner to show “there was no reasonable basis for the state 8 court to deny relief.” Id. at 98. 9 A petitioner may challenge a state court’s factual findings by attempting to show that the “findings were not supported by substantial evidence in the state court record” or 10 by demonstrating that the fact-finding process was “deficient in some material way.” 11 Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012). To succeed on federal habeas 12 review, however, the petitioner must demonstrate “that the state court was not merely 13 wrong, but actually unreasonable.” Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004), 14 abrogated on other grounds by Murray (Robert) v. Schriro, 745 F.3d 984, 999–1000 (9th 15 Cir. 2014). 16 In Cullen v. Pinholster, 563 U.S. 170, 181 (2011), the Court reiterated that “review 17 under § 2254(d)(1) is limited to the record that was before the state court that adjudicated 18 the claim on the merits.” See Murray, 745 F.3d at 998 (“Along with the significant 19 deference AEDPA requires us to afford state courts’ decisions, AEDPA also restricts the 20 scope of the evidence that we can rely on in the normal course of discharging our 21 responsibilities under § 2254(d)(1).”). 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).

-4- 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, 566 U.S. 1, 9 (2012), however, the Court established a “narrow 8 exception” to the rule announced in Coleman. Under Martinez, a petitioner may establish 9 cause for the procedural default of an ineffective assistance of trial counsel claim “by 10 demonstrating two things: (1) ‘counsel in the initial-review collateral proceeding, where 11 the claim should have been raised, was ineffective under the standards of Strickland v. 12 Washington, 466 U.S. 668 (1984)’ and (2) ‘the underlying ineffective-assistance-of-trial- 13 counsel claim is a substantial one, which is to say that the prisoner must demonstrate that 14 the claim has some merit.’” Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012) (quoting 15 Martinez, 566 U.S. at 14); Ramirez v. Ryan, 937 F.3d 1230, 1241 (9th Cir. 2019). 16 “Strickland, in turn, requires [a petitioner] to establish that both (a) post-conviction 17 counsel’s performance was deficient, and (b) there was a reasonable probability that, absent 18 the deficient performance, the result of the post-conviction proceedings would have been 19 different.” Clabourne v. Ryan, 745 F.3d 362, 377 (9th Cir. 2014), overruled on other 20 grounds by McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015). The Ninth Circuit has 21 explained that, “The reasonable probability that the result of the post-conviction 22 proceedings would have been different, absent deficient performance by post-conviction 23 counsel, is necessarily connected to the strength of the argument that trial counsel’s 24 assistance was ineffective.” Clabourne, 745 F.3d at 377; see also Sexton v. Cozner, 679 25 F.3d 1150, 1157 (9th Cir. 2012) (“PCR counsel would not be ineffective for failure to raise 26 an ineffective assistance of counsel claim with respect to trial counsel who was not 27 constitutionally ineffective.”). 28

-5- 1 Martinez applies only to claims of ineffective assistance of trial counsel; it has not 2 been expanded to other types of claims. See Pizzuto v. Ramirez, 783 F.3d 1171, 1177 (9th 3 Cir. 2015) (explaining that the Ninth Circuit has “not allowed petitioners to substantially 4 expand the scope of Martinez beyond the circumstances present in Martinez”); Hunton v. 5 Sinclair, 732 F.3d 1124, 1126–27 (9th Cir. 2013) (denying petitioner’s argument that 6 Martinez permitted the resuscitation of a procedurally defaulted Brady claim, holding that 7 only the Supreme Court could expand the application of Martinez to other areas); see also 8 Davila v. Davis, 137 S. Ct. 2058, 2062–63 (2017) (explaining that the Martinez exception 9 does not apply to claims of ineffective assistance of appellate counsel). 10 III. ANALYSIS 11 Boggs raises 43 claims in his 450-page habeas petition. These include both 12 exhausted claims and unexhausted claims. 13 A. Unexhausted Claims 14 Of the remaining claims in Boggs’s petition, the following are procedurally 15 defaulted because Boggs failed to raise them in state court, or failed to raise them in a 16 procedurally appropriate manner: Claims 9, 10, 11, 13, 23, 37, 38, 39, 41, and 42. Their 17 default is not excused by the ineffective assistance of appellate or PCR counsel. 18 In Claim 9, Boggs alleges that his rights were violated by the admission of 19 “excessively gruesome photographs.” (Doc. 15 at 57.) In Claim 10, he alleges that the trial 20 court gave improper guilt-phase jury instructions. (Id. at 164.) In Claim 11, he alleges that 21 his due process rights were violated because the trial court’s failure to hold a pretrial 22 hearing on the State’s intent to introduce other act evidence related to his white supremacist 23 militia led to admission of the evidence without meeting the requirements of Rule 404(b). 24 (Id. at 166.) In Claim 13, he alleges that the trial court erred in instructing the jury on the 25 multiple-homicides aggravating circumstance. (Id. at 211.) In Claim 23, he alleges that the 26 AEDPA is unconstitutional. (Id. at 375.) In Claim 37, he alleges that his rights were 27 violated by the trial court’s failure to provide a special verdict form. (Id. at 418.) In Claim 28 38, he alleges that Arizona’s capital sentencing scheme violates the Sixth, Eighth, and

-6- 1 Fourteenth Amendments because it does not require the prosecution to prove that the 2 aggravating circumstances outweigh the mitigating circumstances beyond a reasonable 3 doubt. (Id. at 420.) In Claim 39, he alleges that he was deprived of his constitutional right 4 to a reliable capital sentencing proceeding. (Id. at 421.) In Claim 41, he alleges that his 5 execution after more than ten years on death row violates the Eighth and Fourteenth 6 Amendments. (Id. at 433.) Finally, in Claim 42, he alleges that he will be denied a fair 7 clemency process in violation of the Eighth and Fourteenth Amendments. (Id. at 436.) 8 Boggs did not present these claims on direct appeal. (See Doc. 21-1, Ex. A.) He 9 argues, however, that the ineffective assistance of appellate or PCR counsel provides cause 10 for the default and establishes prejudice. These arguments fail. 11 First, before ineffective assistance of appellate counsel may be used as cause to 12 excuse a procedural default, the particular ineffective assistance allegation must first be 13 exhausted in state court as an independent claim. See Edwards v. Carpenter, 529 U.S. 446, 14 453 (2000) (explaining that “an ineffective-assistance-of-counsel claim asserted as cause 15 for the procedural default of another claim can itself be procedurally defaulted”); Murray 16 v. Carrier, 477 U.S. 478, 489–90 (1986); Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 17 1988). During the PCR proceedings, Boggs did not allege ineffective assistance of 18 appellate counsel based on counsel’s failure to raise these claims. (See ROA-PCR 54.)2 19 Therefore, ineffective assistance of appellate counsel cannot constitute cause for their 20 default. Boggs does not attempt to demonstrate that a fundamental miscarriage of justice 21 will occur if the claims are not resolved on the merits. 22 Next, the alleged ineffectiveness of PCR counsel does not excuse the default under 23 Martinez, which, as described above, applies only to defaulted claims of ineffective 24 assistance of trial counsel. Unlike allegations of ineffective assistance of trial counsel, these 25 claims could have been raised on direct appeal. Therefore, they are not subject to the 26 “limited qualification to Coleman” established in Martinez. Boggs asserts that the equitable 27 2 “ROA-PCR” refers to the record on appeal from post-conviction proceedings 28 prepared for Boggs’s petition for review to the Arizona Supreme Court (Case No. CR-14- 0074-PC).

-7- 1 principles of Martinez should apply to other types of claims, but cites no authority for that 2 argument, and the case law holds the opposite. See Pizzuto, 783 F.3d at 1177; Hunton, 732 3 F.3d at 1126–27. Accordingly, these claims remain procedurally barred. Claims 9, 10, 11, 4 13, 23, 37, 38, 39, 41, and 42 are denied.3 5 B. Exhausted Claims 6 The following claims were denied on the merits by the Arizona Supreme Court: 7 Claims 3–6, 15, 19, 25, 27, 29, and 31–36. Therefore, this Court’s analysis takes place 8 under the provisions of 28 U.S.C. § 2254(d). 9 Claim 3 10 Boggs alleges that the Arizona courts violated his Sixth, Eighth, and Fourteenth 11 Amendment rights by denying his motion to represent himself at the penalty phase of trial. 12 (Doc. 15 at 73.) The claim was denied on direct appeal. Boggs, 218 Ariz. at 338, 185 P.3d 13 at 124. 14 Facts 15 Prior to trial, Boggs waived his right to counsel and moved to represent himself. 16 (RT 6/18/04 at 6–7.) Following a series of evaluations of Boggs’s mental health, the trial 17 court granted the motion. (RT 9/3/04 at 5.) 18 After seven months of representing himself, Boggs relinquished his right to self- 19 representation on the fifth day of jury selection: 20 21 3 In addition being defaulted and barred from federal review, Claim 23 is plainly 22 meritless. See Crater v. Galaza, 491 F.3d 1119, 1125–26 (9th Cir. 2007) (holding that AEDPA violates neither the Suspension Clause nor separation of powers); Evans v. 23 Thompson, 518 F.3d 1, 3 (1st Cir. 2008). Claim 41 is meritless because the United States Supreme Court has never held that lengthy incarceration prior to execution constitutes cruel 24 and unusual punishment. See Lackey v. Texas, 514 U.S. 1045 (1995) (mem.) (Stevens, J. & Breyer, J., discussing denial of certiorari and noting the claim has not been addressed); 25 Thompson v. McNeil, 556 U.S. 1114 (2009) (mem.) (Stevens, J. & Breyer, J., dissenting from denial of certiorari; Thomas, J., concurring, discussing Lackey issue). Finally, Claim 26 42 is not cognizable on federal habeas review. Habeas relief can only be granted on claims that a prisoner “is in custody in violation of the Constitution or laws or treaties of the United 27 States.” 28 U.S.C. § 2254(a). Boggs’s challenge to state clemency procedures and proceedings does not represent an attack on his detention and thus does not constitute a 28 proper ground for relief. See Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir.1989) (per curiam); see also Woratzeck v. Stewart, 118 F.3d 648, 653 (9th Cir.1997) (per curiam).

-8- 1 THE DEFENDANT: Your Honor, at this time I have taken the Court’s 2 recommendation under consideration and as well as Mr. Alcantar’s and the rest of the defense staff, and at this time I find no reason to revoke. 3 THE COURT: Okay. Well, we are not going to play games during the trial, 4 but I have told you before that this is a bad idea and that what you are doing 5 is a mistake, and that you’re going to find as you get into the case you’re going to say and do things that are going to make you look foolish and be 6 bad for you. 7 Our law allows you to do that and so we are going to go ahead and 8 proceed. 9 If you decide that you want to change your mind at some time during 10 the trial, then we can talk again. 11 ...

12 MR. CARR: Before we go any further, you misheard Mr. Boggs, I think. 13 THE DEFENDANT: I think I said invoke instead of revoke. 14 15 THE COURT: What is it? You want to represent yourself?

16 THE DEFENDANT: No, I would like to relinquish control back to Mr. Alcantar. 17 18 THE COURT: Okay. Very good. And the lack of clarity of your last statement is eloquent evidence of the wisdom of your choice. 19 20 (RT 4/11/05 at 5–6.) 21 After the jury returned guilty verdicts on all counts, Boggs filed a motion seeking 22 to represent himself again. The trial court denied the motion: 23 THE COURT: . . . Mr. Boggs, I indicated to you earlier, we’re not going to 24 play ping-pong on this. You’ve indicated that you wanted Mr. Alcantar and Mr. Carr to represent you during the trial. I think that was a wise move. I do 25 not think it would be a wise move to change. 26 And more importantly, the law indicates that this is not something that 27 we can—we can’t be changing horses mid-stream here. So I’m going to go ahead and deny your motion. 28

-9- 1 (RT 5/5/05 at 11.) 2 Analysis 3 The Arizona Supreme Court rejected Boggs’s argument that “the trial court abused 4 its discretion by denying his motion to proceed pro per at the penalty phase.” Boggs, 218 5 Ariz. at 338, 185 P.3d at 124. The court first noted that, “The right to proceed without 6 counsel is not unqualified, but must be balanced against the government’s right to a fair 7 trial conducted in a judicious, orderly fashion.” Id. (internal quotations omitted). The court 8 then explained: 9 A defendant who exercises the right to self-representation can subsequently 10 waive that right, either explicitly or implicitly. See, e.g., McKaskle v. Wiggins, 465 U.S. 168, 182 (1984). In this case, Boggs relinquished his right 11 to proceed pro per on April 11, 2005, despite the trial judge’s warning that 12 “if [advisory counsel] take over the trial, they are going to take over the trial.” The judge further cautioned, “[W]e are not going [to] go back and forth on 13 this.” 14 When a defendant has waived his right to self-representation, the trial court 15 may exercise its discretion in deciding whether to permit or deny a 16 subsequent attempt to proceed pro per. See United States v. Singleton, 107 F.3d 1091, 1099 (4th Cir. 1997) (stating that if a defendant has waived the 17 right to self-representation, “[t]he decision at that point whether to allow the defendant to proceed pro se at all or to impose reasonable conditions on self- 18 representation rests in the sound discretion of the trial court”). The nature of 19 the right to self-representation does not “suggest [ ] that the usual deference to ‘judgment calls’ ... by the trial judge should not obtain here.” McKaskle, 20 465 U.S. at 177 n.8; see also State v. Cornell, 179 Ariz. 314, 326, 878 P.2d 21 1352, 1364 (1994) (recognizing that self-representation is not an absolute right and stating that “the court need not stop the trial for the convenience of 22 the defendant each time he changes his mind”). 23 Before Boggs decided to relinquish his right of self-representation, the trial 24 judge cautioned that if Boggs wished to have appointed counsel take over his 25 representation, counsel would remain in that position for the remainder of the trial. When Boggs relinquished his right to self-representation and 26 thereby waived his right to proceed pro per, the judge again gave a similar 27 warning. When the trial court denied Boggs’ second motion to represent himself, it reminded Boggs of its previous warnings and stated that it would 28 not go back and forth on the issue. Because Boggs had relinquished the right

- 10 - 1 to self-representation, the trial judge did not abuse his discretion in denying 2 Boggs’ second request to represent himself.

3 Id. 4 This decision is neither contrary to nor an unreasonable application of clearly 5 established federal law, nor is it based on an unreasonable determination of the facts. 6 While the Supreme Court recognizes a constitutional right to self-representation in 7 criminal proceedings, Faretta v. California, 422 U.S. 806, 832 (1975), the right is “not 8 absolute.” Martinez v. Court of Appeal of California, Fourth Appellate Dist., 528 U.S. 152, 9 161–62 (2000). “[T]he government’s interest in ensuring the integrity and efficiency of the 10 trial at times outweighs the defendant’s interest in acting as his own lawyer.” Id. For 11 example, a judge “may . . . terminate self-representation or appoint ‘standby counsel’— 12 even over the defendant’s objection—if necessary.” Id. 13 ”Boggs’ claim fails because he fails to identify . . . any Supreme Court decision 14 holding that when a defendant has already invoked and waived the right to self- 15 representation during the proceedings, a court violates the defendant’s Faretta rights by 16 denying a subsequent motion for self-representation made in the middle of trial.” (Doc. 21 17 at 43–44.) Given the circumstances of this case, the decision of the Arizona Supreme Court 18 does not satisfy 28 U.S.C. § 2254(d). 19 Faretta incorporated a timing element into its discussion of the right to self- 20 representation, stating that the right would be violated if the court denied a request made 21 “weeks before trial.” 422 U.S. at 835–36. However, “[b]ecause the Supreme Court has not 22 clearly established when a Faretta request is untimely, other courts are free to do so as long 23 as their standards comport with the Supreme Court’s holding that a request ‘weeks before 24 trial’ is timely.” Marshall v. Taylor, 395 F.3d 1058, 1061 (9th Cir. 2005). The Ninth Circuit

25 has noted that “[t]he Supreme Court has never held that Faretta’s ‘weeks before trial’

26 standard requires courts to grant requests for self-representation coming on the eve of trial.”

27 Stenson v. Lambert, 504 F.3d 873, 884 (9th Cir. 2007).

- 11 - 1 Boggs’s request to re-invoke his right to self-representation was made during his 2 trial. The trial court had already put Boggs on notice that once he relinquished his right to 3 self-representation, he would be represented by counsel through the remainder of the trial. 4 These circumstances support the trial court’s exercise of its discretion not to allow Boggs 5 to change his status yet again. See Singleton, 107 F.3d at 1099; see also United States v. 6 Frazier-El, 204 F.3d 553, 559 (4th Cir. 2000) (“In ambiguous situations created by a 7 defendant’s vacillation or manipulation, we must ascribe a ‘constitutional primacy’ to the 8 right to counsel because this right serves both the individual and collective good, as 9 opposed to only the individual interests served by protecting the right of self- 10 representation.”). 11 Given the timing of Boggs’s request to proceed pro per, and the fact that he had

12 already once relinquished that right, fairminded jurists could disagree on the correctness of

13 the Arizona Supreme Court’s denial of this claim. Richter, 562 U.S. at 101; see Wright v.

14 Van Patten, 552 U.S. 120, 126 (2008) (“Because our cases give no clear answer to the

15 question presented,” the state court did not unreasonably apply clearly established federal

16 law). Claim 3 is denied. Claim 4 17 Boggs alleges multiple constitutional violations arising from the admission of his 18 videotaped interviews with the police. (Doc. 15 at 80.) Specifically, he alleges that his 19 statements were obtained in violation of his right to counsel; that the admission of 20 Hargrave’s statements violated his right of confrontation; that the admission of Detective 21 Vogel’s statements accusing Boggs of lying and referring to other evidence violated his 22 due process rights; and that statements made to Vogel after Boggs said “just leave me 23 alone” and mentioned committing suicide were involuntary. The Arizona Supreme Court 24 denied these claims on direct appeal. Boggs, 218 Ariz. at 332–36, 185 P.3d at 118–22. 25 Additional facts 26 Boggs was taken into custody and questioned twice, on June 5 and 6, 2002. (RT 27 4/14/05 at 98, 112; Trial Exhibits 281.001, 278, 279, 280 (June 5th interview tapes), 277 28 (transcript), 269, 270 (June 6th interview tapes), 275 (transcript).) On June 5, 2002, after

- 12 - 1 being advised of his Miranda rights, Boggs agreed to speak with Detective Donald Vogel 2 of the Mesa Police Department. (Exhibit 277 at 1–2.) During the approximately three-hour 3 interview, Boggs gave several stories regarding his involvement in the murders at the Jack 4 in the Box. (Id. at 106–07.) At first, he admitted dropping Hargrave off at the Jack in the 5 Box for work but denied any knowledge of the murders. (Id. at 8–20.) Boggs then stated 6 that Hargrave told him that he had taken the three employees into the back of the restaurant 7 and shot them execution style. (Id. at 23–24.) Boggs continued to deny that he went into 8 the restaurant and denied knowing that Hargrave had Boggs’s gun. (Id. at 28.) He next 9 stated that Hargrave told him that he wanted to go to the Jack in the Box to scare the 10 employees. (Id. at 64–65.) Later, Boggs repeated that Hargrave told him he had robbed the 11 restaurant and shot three employees. (Id. at 69–70.)

12 Finally, Boggs admitted that he saw what had happened inside the restaurant. (Id. at

13 95.) Boggs stated that he watched Hargrave take the employees to the freezer, force them

14 to face the wall, and shoot each one in the back. (Id. at 96–100.) Boggs stated that Hargrave

15 threatened him with the gun and told him to check the victims’ pockets and take their

16 wallets. (Id. at 95–96, 119.) The next day, June 6, while being processed at the Mesa Jail, Boggs asked Detective 17 Dominick Kaufman “what detective he needed to speak to to change his story.” (RT 18 4/12/05 at 181.) After his initial appearance in East Mesa Justice Court, Boggs again asked 19 Detective Kaufman and Detective Dana Price who he needed to speak with to change his 20 story. (Id. at 184–85, 189.) Detective Price told Boggs that he would need to talk to 21 Detective Vogel and called Vogel to make arrangements for the second interview. (Id. at 22 189–90.) 23 During the second interview, Detective Vogel clarified with Boggs that he had 24 requested to speak with Vogel again. (Trial Exhibit 275 at 1–2.) Detective Vogel again 25 administered the Miranda advisory and Boggs agreed to speak with him. (Trial Exhibit 275 26 at 2.) Boggs started the interview by claiming that he had lied in his statement the day 27 before. (Id. at 3.) He again denied entering the restaurant and witnessing Hargrave shoot 28 the employees. (Id. at 3–9.)

- 13 - 1 In reply, Detective Vogel told Boggs that Hargrave had accused Boggs of shooting 2 all the victims. (Id. at 9, 10, 25.) Boggs continued to deny that he was involved in the 3 shootings. (Id. at 25–32.) 4 During a brief break in the questioning, Boggs asked Detective Vogel, “is there like 5 a way I can make a deal with the DA.” (Id. at 41.) Vogel replied that Boggs would have 6 opportunities to speak with the prosecutor. (Id.) 7 Boggs proceeded to admit that he and Hargrave planned to rob the Jack in the Box; 8 according to Hargrave, the restaurant kept as much as $14,000 in large bills in a box to 9 which Hargrave had access. (Id. at 43–44.) Boggs maintained, however, that during the 10 robbery he had acted only as a look-out and did not enter the restaurant. (Id. at 51.) 11 Detective Vogel continued to challenge Boggs’s truthfulness. Boggs maintained his 12 innocence with respect to the murders. At one point, Detective Vogel mentioned Boggs’s 13 son. Boggs told Detective Vogel to leave him alone. (Id. at 71.) Detective Vogel offered to 14 leave the room but Boggs did not reply. (Id.) Boggs threatened to kill himself. (Id.) He then 15 suggested that he would be willing to provide more information if he could speak to the 16 DA and get an agreement in writing. (Id. at 72–73.) 17 Ultimately, Boggs admitted that he participated in the murders. He told Detective 18 Vogel that he went into the Jack in the Box with Hargrave and that the victims were taken 19 into the cooler because he and Hargrave were worried about noise from the gunshots. (Id. 20 at 76–77.) Boggs admitted to shooting at the victims after Hargrave had shot them, aiming 21 at one victim and firing multiple shots. (Id. at 76–80.) 22 At a voluntariness hearing on April 4, 2005, Boggs, representing himself, argued 23 that his confessions should be suppressed because they were involuntary and resulted from 24 duress; because he was taken from his vehicle and immediately interrogated; and because 25 he invoked his right to counsel at the time of his initial arrest, prior to the June 5 26 interrogation. (RT 4/4/05 at 28–29.) Boggs argued that coercion and the overbearing of his 27 will compelled him to speak to the detective during the interrogations. (Id. at 28.) After the 28 hearing, the trial court found that the videotape and transcript of the June 6 interrogation

- 14 - 1 were admissible because Boggs received a Miranda warning and initiated the second 2 interrogation. (Id. at 108.) 3 Claim 4(A): Right to counsel 4 Boggs argues that because the June 6 interview occurred after he had been appointed 5 counsel, his statements in that interview were obtained in violation of his Sixth Amendment 6 rights. (Doc. 15 at 88–95.) The Arizona Supreme Court rejected this argument. Boggs, 218 7 Ariz. at 332–33, 185 P.3d at 118–19. 8 Boggs asserted his Sixth Amendment right to counsel at the June 6 initial 9 appearance. Subsequently, however, Boggs asked several times to speak with someone to change the story he had told Detective Vogel during the previous 10 day’s interrogation. Importantly, after Boggs asserted his right to counsel at 11 the initial appearance, Boggs asked Detective Kaufman with whom he could speak to change his story and told Detective Vogel that he wanted to speak 12 with him. Finally, at the beginning of the June 6 interrogation, Detective 13 Vogel asked Boggs a series of questions to clarify that Boggs, rather than the detectives, initiated the conversation. Vogel again read Boggs his Miranda 14 rights, and Boggs agreed to voluntarily answer Vogel’s questions. Boggs 15 thus initiated the communication with the police, and Detective Vogel was not barred from conducting further interrogation. 16 Boggs argues that although he initiated contact by asking to change his story, 17 the June 6 interview nonetheless violated his right to counsel. He cites State 18 v. Hackman, 189 Ariz. 505, 507–08, 943 P.2d 865, 867–68 (App.1997), for the proposition that once counsel is appointed, counsel must be present for 19 an accused to validly waive his Sixth Amendment rights. But Hackman, 20 unlike this case, involved contact initiated by the state’s investigator rather than by the accused. Id. at 506, 943 P.2d at 866. Boggs also relies on a New 21 York case which again involved a police-initiated interview. See People v. 22 Arthur, 22 N.Y.2d 325, 292 N.Y.S.2d 663, 239 N.E.2d 537, 537–38 (1968). We decline to hold that an accused cannot waive the right to counsel unless 23 counsel is present when the accused himself initiates contact with the police. 24 We find no violation of Boggs’ Sixth Amendment rights.

25 Id. This decision was neither contrary to nor an unreasonable application of clearly 26 established federal law, nor was it based on an unreasonable determination of the facts. 27 In Edwards v. Arizona, 451 U.S. 477 (1981), the Supreme Court held that an accused 28 who invokes the right to counsel “is not subject to further interrogation by the authorities

- 15 - 1 until counsel has been made available to him, unless the accused himself initiates further 2 communication, exchanges, or conversations with the police.” Id. at 484–85. Such 3 “initiation” will be found when the suspect utters words or engages in conduct that can be 4 “fairly said to represent a desire” on his part “to open up a more generalized discussion 5 relating directly or indirectly to the investigation.” Oregon v. Bradshaw, 462 U.S. 1039, 6 1045 (1983). After a suspect initiates this dialogue, the police may begin to question him 7 if he knowingly and intelligently waives his right to counsel. Id. at 1044–46. 8 There is no doubt that Boggs re-initiated contact with the detectives by asking to 9 speak with a detective to change his story. Therefore, the Arizona Supreme Court 10 reasonably concluded that there was no violation of Edwards. See Edwards, 451 U.S. at 11 484–85; Mickey v. Ayers, 606 F.3d 1223, 1235 (9th Cir. 2010) (citing Bradshaw, 462 U.S. 12 at 1045). 13 Boggs relies on Michigan v. Jackson, 475 U.S. 625 (1986), overruled by Montejo v. 14 Louisiana, 556 U.S. 778 (2009), but Jackson is inapposite. There, the Court held that “if 15 police initiate interrogation after a defendant’s assertion, at an arraignment or similar 16 proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that 17 police-initiated interrogation is invalid.” 475 U.S. at 636. Boggs, not the police, initiated 18 the interrogation. See Patterson v. Illinois, 487 U.S. 285, 291 (1988) (explaining that a 19 defendant may waive his Sixth Amendment right to counsel and speak to police without 20 counsel present); see also Michigan v. Harvey, 494 U.S. 344, 352–53 (1990) (holding that 21 even after the right to counsel has attached, the decision to waive that right need not itself 22 be counseled). 23 Boggs also contends that his waiver was not knowing and intelligent, arguing that 24 his mental illness rendered him incompetent to waive his right to counsel. (Doc. 15 at 92.) 25 This aspect of his claim is unexhausted. Because it is not a claim of ineffective assistance 26 of trial counsel, its default is not excused under Martinez. The allegation that Boggs was 27 incompetent is also without merit, as the Court explained in its order on evidentiary 28 development. (Doc. 67 at 19.)

- 16 - 1 Also without merit is Boggs’s assertion that the Arizona Supreme Court 2 unreasonably determined the facts by finding that Boggs initiated the June 6 interview 3 without “an understanding of how Boggs’s serious mental illness may have come into 4 play.” (Doc. 15 at 94.) Boggs does not identify which specific facts about his alleged mental 5 illness the court failed to recognize. More significantly, there is no evidence suggesting 6 that Boggs’s alleged mental illness undermined the court’s conclusion that Boggs initiated 7 the June 6 discussion. Claim 4(A) is denied. 8 Claim 4(B): Right to confrontation 9 Boggs alleges that his confrontation rights were violated by the admission of the 10 June 6 interview, in which Detective Vogel told Boggs that Hargrave had implicated him 11 in the murders. (Doc. 15 at 95–102.) 12 In the June 5 interview, Boggs admitted that he was inside the Jack in the Box with 13 Hargrave when the victims were murdered, watching Hargrave shoot the victims and taking 14 items from them. (Trial Exhibit 277 at 95–104.) During the June 6 interview, Boggs told 15 Detective Vogel that he had lied during the previous interview. (Trial Exhibit 275 at 3, 9.) 16 Boggs began his second interview by telling Detective Vogel that he was not inside the 17 Jack in the Box the night of the murders and simply dropped Hargrave off at the restaurant. 18 (Id. at 4–9.) Detective Vogel responded that, “Chris [Hargrave] told me that you did all the 19 shootin’ inside the store” and “I’m just tellin’ ya’ that Chris told me that you were the one 20 that went in the back cooler with everybody . . . and that you did all the shootin’.” (Id. at 21 9; see id. at 10, 45.) 22 At trial, Detective Vogel testified that in the June 6 interview he had more 23 information about the murders than he had the day before, including information he had 24 “received from Hargraves [sic], as well as from the officers that contacted Hargraves [sic] 25 and different information and observations that they had.” (RT 4/25/05 at 64.) On cross- 26 examination, he agreed that lying to a suspect during an interview was an investigative 27 technique. (Id. at 34.) 28

- 17 - 1 The Arizona Supreme Court rejected Boggs’s argument that his Confrontation 2 Clause rights were violated. Boggs, 218 Ariz. at 333–34, 185 P.3d at 119–20. Because 3 Boggs did not object at trial, the review took place under the fundamental error standard. 4 The Confrontation Clause provides: “In all criminal prosecutions, the 5 accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. The Confrontation Clause attaches to 6 “testimonial witness statements made to a government officer to establish 7 some fact.” State v. Roque, 213 Ariz. 193, 214 ¶ 70, 141 P.3d 368, 389 (2006). The right is not violated, however, “by use of a statement to prove 8 something other than the truth of the matter asserted.” State v. Smith, 215 9 Ariz. 221, 229 ¶ 26, 159 P.3d 531, 539 (2007); see also Roque, 213 Ariz. at 214 ¶ 70, 141 P.3d at 389. 10 11 In Roque, we addressed a similar situation that involved a trial court’s admission of a videotaped interview in which a detective repeated statements 12 allegedly made by a non-testifying witness against the defendant. 213 Ariz. at 213–14 ¶ 69, 141 P.3d at 388–89. There, we recognized the use of such 13 statements as a valid interrogation technique and found no Confrontation 14 Clause violation because the statements were used merely as a method of interrogation and the jury was instructed that the statements could not be used 15 to establish the truth of the matters asserted. Id. at 214 ¶ 70, 141 P.3d at 389. 16 Boggs attempts to distinguish his case from Roque, in which the prosecution 17 did not present any evidence to establish the truth of the out-of-court 18 statements repeated by the detective. Id. Here, Boggs argues, Detective Vogel suggested the truthfulness of Hargrave’s statements when he testified 19 at trial that he “had more information with which to confront Mr. Boggs” at 20 the June 6 interview, including information from Hargrave. On the other hand, the State did not present the jury with any direct testimony as to the 21 truthfulness of the statements, did not seek to introduce a transcript of 22 Hargrave’s interrogation into evidence, and did not rely on the statements as substantive evidence. Furthermore, on cross-examination, Detective Vogel 23 testified that lying is a permissible interrogation technique. 24 Had Boggs objected at trial, he might well have been entitled to an instruction 25 that the statements attributed to Hargrave were introduced as part of the interrogation and could not be used to prove the truth of the matters asserted. 26 But because the statements were admissible at least for the limited purpose 27 of showing the context of the interrogation, Boggs cannot demonstrate fundamental error. 28

- 18 - 1 Id. This decision was neither contrary to nor an unreasonable application of clearly 2 established federal law, nor was it based on an unreasonable determination of the facts. 3 In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that a non- 4 testifying declarant’s “testimonial” hearsay statements cannot be introduced against a 5 defendant in a criminal case. 541 U.S. at 68. However, the right to confrontation “does not 6 bar the use of testimonial statements for purposes other than establishing the truth of the 7 matter asserted.” Id. at 59 n.9 (citing Tennessee v. Street, 471 U.S. 409, 414 (1985)). 8 The Arizona Supreme Court concluded that there was no Confrontation Clause 9 violation because Hargrave’s alleged statements were not offered for their truth but were 10 introduced as part of the overall interrogation. The court noted that the State did not 11 introduce any testimony that Hargrave actually made the statements, did not seek to 12 introduce a video or transcript of Hargrave’s police interview, and never brought attention 13 to the statements or argued that they established Boggs’s guilt. Detective Vogel himself 14 testified that lying to a suspect can be used as a technique to elicit a confession. In light of 15 these circumstances, the Arizona Supreme Court reasonably found that the Hargrave 16 statements did not constitute testimonial hearsay and were not admitted for their truth. 17 Because the statements attributed to Hargrave were not testimonial hearsay, Boggs’s 18 reliance on Bruton v. United States, 391 U.S. 123 (1968), is also unavailing. See Lucero v. 19 Holland, 902 F.3d 979, 987–88 (9th Cir. 2018) (“[T]he Bruton limitation on the 20 introduction of codefendants’ out-of-court statements is necessarily subject to Crawford’s 21 holding that the Confrontation Clause is concerned only with testimonial out-of-court 22 statements.”). 23 Finally, even if there were a Confrontation Clause violation, Boggs would not be 24 entitled to habeas relief. Violations of the Confrontation Clause are subject to harmless- 25 error analysis. Winzer v. Hall, 494 F.3d 1192, 1201 (9th Cir. 2007) (citing Delaware v. Van 26 Arsdall, 475 U.S. 673, 684 (1986), and Arizona v. Fulminante, 499 U.S. 279, 308 (1991)). 27 If the error did not result in “actual prejudice,” the petitioner is not entitled to relief. Brecht 28 v. Abrahamson, 507 U.S. 619, 638 (1993). “Actual prejudice” is demonstrated if the error

- 19 - 1 in question had a “substantial and injurious effect or influence in determining the jury’s 2 verdict.” Id. at 623; see Bains v. Cambra, 204 F.3d 964, 977–78 (9th Cir. 2000). 3 The June 6 video was introduced as evidence of Boggs’s incriminating statements, 4 which the jury would have heard even if Hargrave’s alleged statements had been redacted. 5 In the video, Boggs admitted that he planned the robbery with Hargrave, entered the Jack 6 in the Box with Hargrave, took the victims into the cooler to muffle the sound of gunshots, 7 and shot at the victims. (Trial Exhibit 275 at 43–44, 76–80.) Because the jury would have 8 heard this evidence even if Hargrave’s statements had been omitted from the video and 9 transcript, Boggs cannot show prejudice under Brecht. 10 Claim 4(B) is denied. 11 Claim 4(C): Admission of Vogel’s statements attacking Boggs’s truthfulness 12 Boggs alleges that the state courts violated his due process rights by admitting 13 Detective Vogel’s assertions during the interviews that Boggs was lying. (Doc. 15 at 103– 14 07.) 15 During the interrogations, Detective Vogel confronted Boggs with the various 16 inconsistent versions he offered of his involvement in the murders and accused Boggs of 17 lying. (Trial Exhibit 277, at 15–19, 22, 26–28, 33, 38–39, 41, 51, 53–55, 62–63, 74–75, 94; 18 Trial Exhibit 275 at 49, 54–56, 64, 67, 69–70, 73.) When the video and transcripts of the 19 interviews were admitted, the State had not redacted the portions where Detective Vogel 20 told Boggs he did not believe Boggs was being truthful. (Id.) Boggs did not object and did 21 not request a limiting instruction explaining that the statements could not be used to prove 22 that Boggs was lying. (Id.) 23 The Arizona Supreme Court rejected Boggs’s argument that his fair trial rights were 24 violated. Boggs, 218 Ariz. at 334–35, 185 P.3d at 120–21. The court explained: 25 26 Because Vogel’s accusations were part of an interrogation technique and were not made for the purpose of giving opinion testimony at trial, we find 27 no fundamental error. Decisions from other states buttress our conclusion. See State v. Cordova, 137 Idaho 635, 51 P.3d 449, 455 (Ct.App.2002) 28 (allowing such statements by interrogating officers at trial “to the extent that

- 20 - 1 they provide context to a relevant answer by the suspect”); Lanham v. 2 Commonwealth, 171 S.W.3d 14, 27–28 (Ky.2005); State v. O’Brien, 857 S.W.2d 212, 221–22 (Mo.1993); State v. Demery, 144 Wash.2d 753, 30 P.3d 3 1278, 1284 (2001) (plurality opinion); see also Dubria v. Smith, 224 F.3d 995, 1001 (9th Cir.2000) (concluding, in the context of reviewing a denial of 4 habeas corpus, that an officer’s statements simply gave context to the 5 defendant’s answers). But see State v. Elnicki, 279 Kan. 47, 105 P.3d 1222, 1229 (2005) (holding that an officer’s statements in a videotaped 6 interrogation are inadmissible opinion evidence and noting that “context” for 7 a defendant’s shifting stories could be shown in other ways); Commonwealth v. Kitchen, 730 A.2d 513, 521 (Pa. Super. Ct. 1999) (analogizing an 8 interviewer’s statements regarding a defendant’s truthfulness to a 9 prosecutor’s inadmissible personal opinion as to the defendant’s guilt). 10 Lanham, one of the most recent cases to address this issue, noted that 11 “[a]lmost all of the courts that have considered the issue recognize that this form of questioning is a legitimate, effective interrogation tool. And because 12 such comments are such an integral part of the interrogation, several courts 13 have noted that they provide a necessary context for the defendant’s responses.” Lanham, 171 S.W.3d at 27. The court concluded that “such 14 recorded statements by the police during an interrogation are a legitimate, 15 even ordinary, interrogation technique, especially when a suspect’s story shifts and changes.” Id. The court also stated that because the statements are 16 not admissible to prove that the suspect was lying, courts should provide the jury with a limiting instruction if one is requested. Id. at 27. 17 18 We agree that, if Boggs had requested a limiting instruction, one would have been appropriate, but Boggs neither objected to the evidence nor requested a 19 limiting instruction. In addition, Boggs cannot establish prejudice because he 20 did, in fact, provide multiple stories about his involvement; the jury did not need Vogel’s comments to know that Boggs lied. Boggs has not established 21 fundamental error. 22 Id. This decision was neither contrary to nor an unreasonable application of clearly 23 established federal law, nor was it based on an unreasonable determination of the facts. 24 Review of a habeas claim based upon the improper admission of evidence is guided 25 by the principle that “it is not the province of a federal habeas court to reexamine state- 26 court determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67–68 27 (1991). The issue for the federal habeas court “is whether the state proceedings satisfied 28 due process.” Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (quoting Jammal

- 21 - 1 v. Van de Kamp, 926 F.2d 918, 919–20 (9th Cir. 1991)). 2 The United States Supreme Court has “defined the category of infractions that 3 violate ‘fundamental fairness’ very narrowly,” Dowling v. United States, 493 U.S. 342, 352 4 (1990), and “has made very few rulings regarding the admission of evidence as a violation 5 of due process.” Holley, 568 F.3d at 1101. To establish a constitutional violation based on 6 the improper admission of such evidence, Boggs must show that the trial court’s error had 7 a “substantial and injurious” effect on the jury’s verdict. Brecht, 507 U.S. at 638. 8 The Arizona Supreme Court reasonably concluded that the admission of Vogel’s 9 remarks during the interviews did not violate Boggs’s due process rights. Detective Vogel’s 10 accusations were part of an interrogation technique, provided necessary context for 11 Boggs’s responses, and were not made for the purpose of giving opinion testimony at trial. 12 The State did not seek Detective Vogel’s testimony about Boggs’s truthfulness. His 13 statements that Boggs was being untruthful were made to place Boggs’s answers in context 14 given that his story changed numerous times and he admittedly lied in his previous 15 statement. 16 In Dubria v. Smith, 224 F.3d 995, 1001–02 (9th Cir. 2000), the Ninth Circuit held 17 that the admission of an unredacted tape and transcript from a petitioner’s police interview 18 did not warrant federal habeas corpus relief on due process grounds.4 During the interview, 19 the detectives challenged the petitioner about his explanation of events and repeatedly told 20 him that no judge or jury would believe him if he stuck to his story. Id. The petitioner 21 claimed that certain portions of the tape and transcript should have been redacted because 22 one of the detectives made comments and asked questions indicating disbelief in the 23 petitioner’s story, opinions about the petitioner’s guilt, police theories about the victim’s 24 death, and references to the petitioner’s involvement in the crime. Id. at 1001. The Ninth 25 4 In contrast to Boggs’s case, the trial judge in Dubria provided limiting instructions 26 telling the jury that it was not to consider the detective’s statements for the truth of the matter asserted. Id. at 1002. However, the Dubria court did not rely on the limiting 27 instructions as the basis for its holding. Instead, after concluding that there was no error, the court stated that “even if” it was error to admit the tapes and transcripts without 28 redacting the detective’s accusatory statements, any error was cured by the limiting instructions. Id.

- 22 - 1 Circuit found that “the tape and transcript show . . . an ‘unremarkable interview.’” Id. The 2 court noted that the questions and comments by the detective placed the petitioner’s 3 answers in context, much like a prosecutor’s questions at trial. Id. Nothing in the detectives’ 4 statements “suggested evidence or theories of the case that were not presented at trial.” Id. 5 Finally, the court found that the comments “were not the types of statements that carry any 6 special aura of reliability [with the jury].” Id. at 1002. 7 As the Arizona Supreme Court found, the same factors apply to the tape and 8 transcript of Boggs’s interview. Detective Vogel’s comments challenging Boggs’s 9 truthfulness were an ordinary interview technique and provided a context for Boggs’s 10 admittedly inconsistent versions of the crimes. 11 Finally, the Court agrees with Respondents that even if admission of the unredacted 12 tape violated due process, Boggs has failed to prove prejudice. The State did not rely on 13 Detective Vogel’s remarks to prove Boggs’s guilt or to show that he lied. Instead, the State 14 admitted the interviews to introduce Boggs’s incriminatory statements, which the jury 15 would have heard whether or not Detective Vogel’s comments about Boggs’s honesty were 16 redacted. Moreover, given Boggs’s “multiple stories about his involvement[,] the jury did 17 not need Vogel’s comments to know that Boggs lied.” Boggs, 218 Ariz. at 335, 185 P.3d 18 at 121. Boggs has failed to show prejudice. Brecht, 507 U.S. at 638. 19 Claim 4(C) is denied. 20 Claim 4(D): Voluntariness 21 Boggs alleges that his due process rights were violated by the admission of the 22 statements he made in the June 6 interview after he told Detective Vogel to “leave me 23 alone” and made reference to committing suicide because those statements were 24 involuntary. (Doc. 15 at 107–11.) 25 Boggs initiated the June 6 interview by requesting to speak with Detective Vogel. 26 He was given Miranda warnings and stated that he understood his rights and wanted to 27 talk. (Trial Exhibit 275 at 2.) The interview lasted approximately one and a half hours. 28 Boggs was given several breaks. (Id. at 42, 70; RT 4/4/05 at 101.) He was offered food and

- 23 - 1 drink. Detective Vogel did not threaten Boggs or promise anything in exchange for his 2 statements. (RT 4/4/05 at 101–02; RT 4/14/05 at 110; Trial Exhibit 275 at 1, 3.) 3 At one point during the interview, shortly after a break, Boggs said, “just leave me 4 alone,” in response to a discussion about Boggs’s son. Boggs also suggested that he should 5 commit suicide. (Trial Exhibit 275 at 70–72.) Detective Vogel offered to leave the 6 interview room. (Id.) In response, Boggs stated, “Guys are going to kill me anyway. So 7 you guys might as well, might as well just get it over with now.” (Id.) Detective Vogel 8 again asked Boggs if he wanted him to leave the room. (Id.) Boggs did not respond. (Id.) 9 The Arizona Supreme Court rejected Boggs’s argument that his statements 10 following this exchange were not voluntary. Boggs, 218 Ariz. 335–36, 185 P.3d at 121– 11 22. 12 Only voluntary statements made to law enforcement officials are admissible at trial. A defendant’s statement is presumed involuntary until the state meets 13 its burden of proving that the statement was freely and voluntarily made and was not the product of coercion. State v. Arnett, 119 Ariz. 38, 42, 579 P.2d 14 542, 546 (1978). The state meets its burden “when the officer testifies that 15 the confession was obtained without threat, coercion or promises of immunity or a lesser penalty.” State v. Jerousek, 121 Ariz. 420, 424, 590 P.2d 16 1366, 1370 (1979). In determining whether a confession is voluntary, we 17 consider whether the defendant’s will was overcome under the totality of the circumstances. To find a confession involuntary, we must find both coercive 18 police behavior and a causal relation between the coercive behavior and the 19 defendant’s overborne will. Colorado v. Connelly, 479 U.S. 157, 165–66, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). In this case, the court did not abuse 20 its discretion in ruling the statements voluntary. 21 Boggs alleges that Vogel employed psychological pressure to provoke his 22 confession by preying on his love for his son. He analogizes this case to 23 United States v. Tingle, 658 F.2d 1332 (9th Cir.1981), which held that police statements were patently coercive because they implied that a mother might 24 not see her child for a long time unless she cooperated with police. Id. at 25 1336.

26 Any analogy to Tingle is strained. Unlike the agents in Tingle, Detective Vogel did not threaten Boggs with the loss of his child. Rather, Vogel 27 attempted to solicit a sense of responsibility for his son to encourage Boggs 28 to “tell the truth,” not to intimate that Boggs would never see his son if he did not cooperate. When Boggs was unresponsive to Vogel’s question

- 24 - 1 regarding his son’s name, Vogel responded, “[Y]ou don’t have to talk about 2 the boy,” and changed the subject. In fact, although Boggs brought up his son later in the conversation, Vogel refrained from further conversation 3 regarding Boggs’ son. Also, Boggs did not confess in direct response to Vogel’s comments about his son, demonstrating that these comments did not 4 overcome his will. 5 Although his argument is not clear, Boggs also seems to argue that the 6 statements must be excluded because Vogel coerced him when he did not 7 cease questioning after Boggs stated, “Just leave me alone.” Miranda requires that when an “individual indicates in any manner, at any time prior 8 to or during questioning, that he wishes to remain silent, the interrogation 9 must cease.” Miranda, 384 U.S. at 473–74, 86 S.Ct. 1602. If the alleged assertion of the right to silence is ambiguous, or “susceptible to more than 10 one interpretation, the limit of permissible continuing interrogation 11 immediately after the assertion would be for the sole purpose of ascertaining whether the defendant intended to invoke his right to silence.” State v. 12 Finehout, 136 Ariz. 226, 229, 665 P.2d 570, 573 (1983); see State v. Flower, 13 161 Ariz. 283, 287, 778 P.2d 1179, 1183 (1989) (“[B]y failing to at least clarify [the defendant’s] intent, [the detective] did not ‘scrupulously honor’ 14 [the defendant’s] right to silence, and the entire statement was inadmissible 15 as a violation of Miranda.”).

16 When Boggs stated, “Just leave me alone,” Vogel did not ignore the statement, but instead offered to leave him alone by asking, “Do you want 17 me to walk out for a few minutes?” and stating, “If you want me to leave the 18 room, tell me.” These comments attempted to clarify whether Boggs wanted Vogel to end the interrogation or merely to stop discussing his son. Instead 19 of responding in the affirmative, Boggs stated that the police were going to 20 kill him anyway and they “might as well just get it over with now.” Boggs then continued talking with Vogel. Vogel did not engage in coercive 21 behavior by clarifying the meaning of Boggs’ statements and responding to 22 Boggs’ further comments. 23 Under the totality of the circumstances, Boggs’ statements were voluntary. 24 Vogel neither threatened Boggs nor made him any promises. Indeed, Vogel made clear to Boggs that he could not make any promises and was only 25 looking for the truth. Boggs presented no evidence of coercive behavior. 26 Id. (citations omitted). 27 This decision was neither contrary to nor an unreasonable application of clearly 28 established federal law, nor was it based on an unreasonable determination of the facts.

- 25 - 1 “An involuntary statement by a defendant violates the Due Process Clause of the 2 Fifth Amendment.” United States v. Miller, 984 F.2d 1028, 1030 (9th Cir. 1993) (citing 3 Connelly, 479 U.S. at 163). The question is whether, under the totality of the circumstances, 4 the defendant’s will was overborne when he confessed. Id. at 1031; see Ortiz v. Uribe, 671 5 F.3d 863, 869 (9th Cir. 2011). “[C]oercive police activity is a necessary predicate to the 6 finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause. 7 . . .” Connelly, 479 U.S. at 167. To determine whether a confession was voluntary, courts 8 consider the length, location, and continuity of the interrogation; the suspect’s maturity, 9 education, and physical and mental condition; and whether the suspect was advised of his 10 Miranda rights. Withrow v. Williams, 507 U.S. 680, 693–94 (1993). “[T]he Fifth 11 Amendment privilege is not concerned ‘with moral and psychological pressures to confess 12 emanating from sources other than official coercion.’” Connelly, 479 U.S. at 170 (quoting 13 Oregon v. Elstad, 470 U.S. 298, 305 (1985)); see Berghuis v. Thompkins, 560 U.S. 370, 14 387 (2010); Ortiz, 671 F.3d at 872 (“[I]n the absence of threats or promises, mere 15 psychological appeals to a petitioner’s conscience were not enough to overcome his or her 16 will.”). 17 The Arizona Supreme Court reasonably concluded that Boggs’s June 6 statements 18 were voluntary and uncoerced. Boggs initiated the interview. Detective Vogel read Boggs 19 his Miranda rights and Boggs agreed to speak with him. Boggs was offered food and drink 20 and received multiple breaks during the hour-and-a-half interview. He was not threatened 21 or promised anything in exchange for his statement. These circumstances stand in stark 22 contrast to those where courts have found coercion. See, e.g., Fulminante, 499 U.S. at 287– 23 88 (finding that officer’s promise to protect defendant from credible threat of violence 24 rendered confession involuntary); Mincey v. Arizona, 437 U.S. 385, 398–99 (1978) 25 (finding confession involuntary where defendant had been seriously wounded a few hours 26 earlier, was “depressed almost to the point of a coma,” was in intensive care unit, 27 complained of “unbearable” pain, gave incoherent answers, declined to answer questions 28 without a lawyer, and was questioned while lying in a hospital bed).

- 26 - 1 Any psychological pressure applied by Detective Vogel fell short of the type that 2 has been found to overbear a suspect’s will. See, e.g., Lynumn v. Illinois, 372 U.S. 528, 534 3 (1963) (finding statement involuntary where suspect confessed after officers told her that 4 failure to cooperate would result in her losing financial aid for, and custody of, her 5 children); United States v. Tingle, 658 F.2d 1332, 1336 (9th Cir. 1981) (explaining that it 6 is impermissible to “deliberately prey upon the maternal instinct and inculcate fear in a 7 mother that she will not see her child in order to elicit ‘cooperation’”). Here, Detective 8 Vogel never threatened Boggs’s loved ones or demanded his cooperation as a condition of 9 seeing them again. 10 Boggs cites Henry v. Kernan, 197 F.3d 1021 (9th Cir. 1999), but Henry is readily 11 distinguishable. There, the court found that the confession was coerced and involuntary 12 where the interrogation continued for an hour after the defendant had invoked his right to 13 counsel, the police knew Miranda had been violated and intentionally continued with the 14 interrogation, and they misled the defendant by telling him that what he said could not be 15 used against him for any purpose. Id. at 1027–28. During the interview, the defendant was 16 “shaken, confused, and frightened, crying in parts and frequently asking for forgiveness.” 17 Id. at 1027. His statements were “rambling, disjointed, often unresponsive to the questions 18 asked by the officers, occasionally inaudible, and sometimes virtually incoherent.” Id. In 19 contrast to the circumstances in Henry, Boggs received a Miranda warning and agreed to 20 speak with Detective Vogel. Vogel did not mislead Boggs, and Boggs’s responses during 21 the interview, while sometimes emotional, were responsive and coherent. 22 Boggs argues that his “persistent crying, threats of suicide, and multiple requests to 23 be left alone” are evidence that his statements were involuntary. (Doc. 15 at 110.) Viewed 24 in the totality of the circumstances, this behavior does not show Boggs’s will was 25 overborne. He continued to speak with Detective Vogel despite Vogel’s offer to leave him 26 alone. (Trial Exhibit 275 at 71.) Also, as Respondents note, Boggs attempted to condition 27 his cooperation with Detective Vogel on receiving something in writing from the 28 prosecutor. (Id. at 72–73.) It is clear from this statement that Boggs was exercising his will

- 27 - 1 during the interrogation, making a conscious decision whether and under what conditions 2 to confess. Boggs’s will was not overborne and his statements were voluntarily given. 3 Claim 4(D) is denied. 4 Conclusion 5 The Arizona Supreme Court’s denial of these claims was neither contrary to nor an 6 unreasonable application of clearly established federal law, nor was it based on an 7 unreasonable determination of the facts. Boggs has not met his burden of showing “there 8 was no reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98. Claim 9 4 is denied. 10 Claim 5 11 Boggs alleges that the admission of statements Beatriz Alvarado made before she 12 died violated his Sixth Amendment confrontation rights and his rights under the Eighth and 13 Fourteenth Amendments. (Doc. 15 at 111–17.) Only the Confrontation Clause aspect of 14 this claim is exhausted.5 15 Luis Vargas testified at trial that he went to the Jack in the Box on the night of the 16 murders and saw a woman “moaning on the ground” behind the building. (RT 4/11/05 at 17 71–72.) The woman (Alvarado) said in Spanish, a language in which Vargas was 18 proficient, “they were robbing,” “they were still robbing . . . in there,” and “men entered.” 19 (Id. at 72; see also id. at 73, 76, 81, 82.) Vargas also testified that the woman “told me in 20 21 5 22 Boggs concedes that he failed to exhaust his claims that admission of the statements also violated his due process and Eighth Amendment rights. (Doc. 15 at 111.) 23 He argues that the ineffective assistance of PCR and appellate counsel excuses any 24 procedurally defaulted aspects of the claim. (Id.) The ineffective assistance of PCR counsel excuses only claims of ineffective assistance of trial counsel. Pizzuto, 783 F.3d at 1177. 25 Boggs also failed to exhaust a claim that appellate counsel was ineffective in failing to raise the due process and Eighth Amendment allegations in Claim 5, so appellate counsel 26 ineffectiveness does not excuse the claim’s default. See Carpenter, 529 U.S. at 451–53; 27 Carrier, 477 U.S. at 489–90. Those aspects of the claim are defaulted and barred from review. 28

- 28 - 1 Spanish, some guys came in there . . . and she told me in Spanish that they are robbing.” 2 (Id. at 87.) 3 Officer Daniel Beutel testified that he responded to the Jack in the Box shortly after 4 the initial 911 call. (Id. at 88–90.) He helped other officers assist Alvarado into the back of 5 a patrol car. (Id. at 98–99.) While in the car, Beutel “asked her[] several times if she was 6 injured and she said yes.” (Id. at 99.) He also “asked her several times if there were people 7 still inside and she made reference to two.” (Id.) Based on her statements, Officer Beutel 8 believed that the people who shot Alvarado might still be in the restaurant. (Id. at 100.) 9 On direct appeal, Boggs contended that the admission of Alvarado’s statements 10 violated his Sixth Amendment right to confrontation. The Arizona Supreme Court rejected 11 the claim, finding that the Confrontation Clause did not apply to Alvarado’s statements 12 because they were not “testimonial evidence” under Crawford, 541 U.S. at 51, and Davis 13 v. Washington, 547 U.S. 813 (2006). Boggs, 218 Ariz. at 337–38, 185 P.3d at 123–24. The 14 court explained: 15 The admission of Alvarado’s statements did not violate Boggs’ right to 16 confrontation. As she lay dying on the ground just outside the restaurant, Alvarado told Vargas that “men entered,” “they were robbing,” and that she 17 thought “they were still robbing.” When Officer Beutal arrived, she told him 18 that two people were in the store and repeatedly asked him for help.

19 The circumstances in which Alvarado made the statements indicate that she 20 was seeking aid for herself and the others inside the store to meet an ongoing emergency. Further, the officers’ actions, including surrounding the 21 restaurant and sending dogs in to confront anyone still inside the restaurant, 22 demonstrate that they understood the situation to be an ongoing emergency. . . . Because Alvarado’s statements described what appeared to be an ongoing 23 emergency, they were non-testimonial. 24 Id. (citation omitted). The decision was neither contrary to nor an unreasonable application 25 of clearly established federal law, nor was it based on an unreasonable determination of the 26 facts. 27 28

- 29 - 1 The Confrontation Clause applies only to testimonial evidence. Crawford, 541 U.S. 2 at 51. Testimony is defined as “[a] solemn declaration or affirmation made for the purpose 3 of establishing or proving some fact.” Id. In Davis, the Court explained that: 4 Statements are nontestimonial when made in the course of police 5 interrogation under circumstances objectively indicating that the primary 6 purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively 7 indicate that there is no such ongoing emergency, and that the primary 8 purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. 9 547 U.S. at 822. 10 Here, as the Arizona Supreme Court found, Alvarado’s statements were not 11 testimonial. Like the 911 caller in Davis, Alvarado was “speaking about events as they 12 were actually happening, rather than ‘describ[ing] past events.’” Davis, 547 U.S. at 827. 13 The purpose of her statements “was to enable police assistance to meet an ongoing 14 emergency.” Id. at 828. The statements were not “formal” like the recorded station-house 15 interview in Crawford. Id. at 827. Officer Buetel was seeking to determine “what is 16 happening” not “what happened”; the questioning was not “part of an investigation into 17 possibly criminal past conduct.” Id. at 829–30. 18 The Arizona Supreme Court reasonably applied Crawford and Davis and 19 determined that Alvarado’s statements to Vargas and Beutel were nontestimonial. Boggs’s 20 Confrontation rights were not violated by introduction of the testimony. Claim 5 is denied. 21 Claim 6 22 Boggs alleges that “[t]he State’s pretrial seizure of [his] legal documents violated 23 his right to keep confidential his own pretrial preparations and his attorney-client 24 communications” in violation of his Fifth, Sixth, Eighth and Fourteenth Amendment rights. 25 (Doc. 15 at 117.) The Arizona Supreme Court denied this claim on the merits. Boggs, 218 26 Ariz. at 336–37, 185 P.3d at 122–23. 27 Facts 28 Throughout the pretrial proceedings, Boggs complained that jail staff were

- 30 - 1 searching his cell and seizing his legal materials. On March 5, 2004, Boggs’s counsel, 2 Herman Alcantar, informed the court that “detention officers have gone into [Boggs’s] cell 3 and basically ransacked his legal materials.” (RT 3/5/04 at 7.) Alcantar stated that he would 4 first attempt to resolve the issue with the sheriff’s department; the court replied, “I think 5 that’s the proper way to do it.” (Id.) 6 On November 1, 2004, after the court had granted Boggs’s motion to represent 7 himself, Boggs indicated that jail staff had informed him he could only view the Medical 8 Examiner’s photographs for one hour at a time. (RT 11/1/04 at 10–11.) He also stated that 9 he was given only one hour per day to make phone calls to his advisory counsel. (Id. at 12.) 10 Finally, he told the court that jail staff had seized “legal paperwork,” “evidence in the case” 11 from his cell and had gone through his “legal box” and read and censored his mail. (Id. at 12 13–15.) The court asked the prosecutor to have counsel from the sheriff’s office appear at 13 a status conference to “let us know what their side of the story is” and to bring any items 14 seized from Boggs’s cell. (Id. at 16.) 15 At the status conference, Boggs suggested that jail staff were opening his legal mail. 16 (RT 11/19/04 at 5–6.) He also claimed that “jail intelligence” was withholding his mail. 17 (Id. at 8.) Counsel for the sheriff’s office averred that no documents were being withheld 18 but that he needed more information to address Boggs’s contention that his legal mail was 19 being opened. (Id. at 9–10.) The court responded that it expected the jail not to interfere 20 with any communications between Boggs and his advisory counsel. (Id. at 11.) Counsel for 21 the sheriff’s office also informed the court that Boggs was given access to the Medical 22 Examiner’s photographs through advisory counsel. (Id. at 12.) The court concluded 23 “there’s nothing that I see now that would indicate to me that I need to intervene. I want 24 the defendant to have reasonable access to counsel, reasonable access to the materials, and 25 access to the materials that he’s going to need to prepare for trial.” (Id. at 13.) 26 At a status conference on January 7, 2005, Boggs again contended that “the jail 27 continues to withhold my mail, both legal and regular mail.” (RT 1/7/05 at 3.) At another 28 status conference a month later, the State informed the court that the FBI had previously

- 31 - 1 been seizing Boggs’s non-legal mail, but was “no longer doing it” and the mail had been 2 returned to Boggs. (RT 2/7/05 at 3; ROA 202.) The FBI’s monitoring of Boggs’s non-legal 3 mail was pursuant to a federal court order. (Id.) Boggs contended that jail staff had opened 4 his legal mail outside his presence. (Id. at 4.) When asked whether he could show any 5 prejudice as a result, Boggs stated that he could not be sure that all his mail had been 6 delivered to him. (Id. at 5.) 7 The court held another status conference on February 25, 2005, at which Deputy 8 Sheriff Erin Douglas, of the Maricopa County Sheriff’s Department, testified. He stated 9 that items were seized from Boggs’s cell pursuant to a search warrant and that all items not 10 listed in the warrant were returned. (RT 2/25/05 at 6.) 11 Douglas testified that on February 12, 2005, jail staff seized a letter from Boggs 12 addressed to the trial prosecutor which stated, “Don’t fuck with our chief. We have you on 13 our radar. We know where you live and can get you. Breathe deep.” (RT 2/25/05 at 7–8.) 14 The letter also contained “some unknown black powder.” (Id.) Another inmate said that 15 Boggs had given him the letter to mail. (Id. at 8.) Detective Vogel contacted the jail to 16 inform them that he had received a similar letter. (Id. at 8–9.) After learning of the letters, 17 the Maricopa County Sheriff’s Office began a search of Boggs’s cell on February 15. (Id. 18 at 9.) The search was stopped when Detective Vogel called and asked them to wait until a 19 search warrant could be obtained and a special master appointed due to Boggs’s pro per 20 status. (Id.; RT 4/4/05 at 119–20.) Boggs was moved to another cell, items taken from his 21 cell in the initial search were returned to the cell, and the cell was sealed until the search 22 warrant was obtained. (RT 4/4/05 at 120–21.) 23 During the initial search, prior to the search warrant being issued, jail staff observed 24 in Boggs’s cell schematics of weapons, bombs, the jail, and the courthouse. (RT 2/25/05 at 25 9.) Once the search warrant issued, the items seized from Boggs’s cell were secured and 26 ultimately taken to another judge for an in camera review to determine what items were 27 subject to the search warrant. (Id. at 10.) Boggs’s advisory counsel was offered the 28 opportunity to observe the judge’s review of the items taken from Boggs’s cell. He

- 32 - 1 declined, in order to avoid becoming a witness and creating a conflict of interest. (Id. at 2 13.) 3 Douglas testified that 18 items were taken pursuant to the search warrant, including 4 two packs of batteries, diagrams of handguns, several blank legal pads, schematics of the 5 Madison Street Jail, envelopes, and two letters to Detective Vogel dated January 5, 2004, 6 and March 23, 2004. (Id. at 11–12.) The prosecutor informed the court that, other than the 7 threatening letter that was addressed to him, he had not seen any of the items taken from 8 Boggs’s cell. (Id. at 12.) 9 Boggs claimed that some letters and items of discovery were taken and had not been 10 returned. (Id. at 13–14.) The trial court ordered that all of the seized items be made 11 available for Boggs and his advisory counsel to review. (Id. at 18–19.) 12 The court held an evidentiary hearing on April 4, 2005. Before the hearing, Boggs 13 filed a supplemental motion detailing the items he believed had not been returned. (ROA 14 219.) Boggs claimed that he was missing three items: proposed questions of the State’s 15 witness regarding voluntariness, “possible areas of cross-examination and impeachment,” 16 and copies of police reports on which he had made notations. (Id.) 17 The State called Lieutenant Jacobs from the Sheriff’s Office, who testified that items 18 were removed from Boggs’s cell based on information that he had written threatening 19 letters. (RT 4/4/05 at 118.) He further confirmed that no items were taken in the initial 20 search, prior to the seized items being taken to the special master. (Id. at 120, 125–26.) 21 Additionally, the prosecutor stated that the only item from Boggs’s cell that he had seen 22 was a diary page showing Detective Vogel’s address. (Id. at 158.) The court concluded that 23 nothing indicated “that anything untoward occurred.” (Id.) 24 Analysis 25 On direct appeal, the Arizona Supreme Court found there was no improper 26 interference with Boggs’s right to counsel. Boggs, 218 Ariz. 325, 336–37, 185 P.3d 111, 27 122–23. The court explained: 28

- 33 - 1 “not every intrusion into the attorney-client relationship results in a denial of 2 effective assistance of counsel. Whether a Sixth Amendment violation exists depends on whether the intrusions were purposeful and whether the 3 prosecution, either directly or indirectly, obtained evidence or learned of defense strategy from the intrusions.” State v. Pecard, 196 Ariz. 371, 377 ¶ 4 28, 998 P.2d 453, 459 (App.1999) (citing Weatherford v. Bursey, 429 U.S. 5 545, 558, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977)). 6 In Warner, this Court addressed an argument similar to that made by Boggs. 7 See 150 Ariz. at 125–28, 722 P.2d at 293–96. Jail personnel had seized all papers from Warner’s cell in an attempt to secure evidence of alleged perjury. 8 Id. at 125, 722 P.2d at 293. Jail staff returned the seized papers, including 9 transcripts and summaries of conferences between the defendant and his counsel, to the defendant but provided copies to the prosecutor. Id. The 10 prosecutor’s assistant read the materials, and the prosecutor read some of the 11 materials. Id. at 126, 722 P.2d at 294. Because the prosecutor viewed the privileged materials, we found a presumptive violation of the defendant’s 12 right to counsel. Id. at 127, 722 P.2d at 295. 13 Boggs’ case differs from Warner, however, because the prosecutor here 14 never received or reviewed any privileged items. In fact, the State protected 15 the defendant’s right to counsel by requesting that a special master review the seized materials and return any privileged items to Boggs. The trial court 16 then held evidentiary hearings to address the alleged violation of Boggs’ right to counsel. At the hearings, the court found the testimony of two MCSO 17 officers and Detective Vogel credible and concluded that nothing “untoward 18 occurred.” 19 Thus, unlike the defendant in Warner, Boggs failed to show improper 20 interference with his right to counsel. 21 Id. at 337, 185 P.3d at 123 (additional citations omitted). 22 This decision was neither contrary to nor an unreasonable application of clearly 23 established federal law, nor was it based on an unreasonable determination of the facts. 24 The Arizona Supreme Court reasonably concluded that the searches and the seizures of 25 materials from Boggs’s cell did not interfere with his attorney-client relationship or his 26 ability to present his defense. 27 A special master reviewed the seized materials to determine whether any were 28 privileged, and the prosecutor never received or reviewed any privileged materials. (RT

- 34 - 1 2/25/05 at 10, 12; RT 4/4/05 at 158.) Contrary to Boggs’s conclusory assertions, nothing 2 in the record suggests that jail staff read his legal mail. At the November 19 status 3 conference, the court found that the opened letters Boggs claimed were legal mail were 4 actually letters from Joyce Boggs, Boggs’s grandmother. (RT 11/19/04 at 11, 14.) The 5 record showed that the FBI monitored only Boggs’s non-legal mail. (RT 2/7/05 at 3; ROA 6 202.) 7 The record further demonstrated that jail staff did not seize any legal documents, 8 that all privileged materials were returned to Boggs after review by the special master, that 9 jail staff did not review his legal mail, and that the prosecutor had no access to privileged 10 material.6 Therefore, there was no tainted evidence, no communication of defense strategy 11 to the State, and no purposeful intrusion into the attorney-client relationship, and therefore 12 no Sixth Amendment violation. See Weatherford v. Bursey, 429 U.S. 545, 558 (1977)7; see 13 United States v. Fernandez, 388 F.3d 1199, 1240 (9th Cir. 2004) (rejecting Sixth 14 Amendment claim when there was no showing of purposeful interference with defendants’ 15 attorney-client relationship, “that any defense strategy was actually communicated to the 16 government[,]” or “that any of the evidence presented at trial had been tainted by the 17 alleged intrusion”), modified by, 425 F.3d 1248 (9th Cir. 2005). There was no interference 18 with the attorney-client relationship and no prejudice to Boggs’s defense. See id. Boggs 19 20 6 21 Both parties cite Wolff v. McDaniel, 418 U.S. 539 (1974). In Wolff the Court held that a jail policy whereby legal mail could be opened only in the prisoner’s presence “[does] 22 all, and perhaps even more, than the Constitution requires.” Id. at 577. Under the 23 circumstances of this case, where the record does not support a finding that Boggs’s legal mail was opened, Wolff is inapplicable. 24 7 25 In Weatherford, an undercover law enforcement officer participated with the plaintiff in the commission of a crime. The officer, while still posing as a conspirator, was 26 invited to meetings between plaintiff and his criminal defense counsel. The officer attended the meetings, but did not discuss or pass on to his supervisors or the prosecuting attorney 27 “‘any details or information regarding the plaintiff’s trial plans, strategy, or anything 28 having to do with the criminal action pending against the plaintiff.’” 429 U.S. at 548 (citation omitted).

- 35 - 1 has not met his burden of showing “there was no reasonable basis for the state court to 2 deny relief.” Richter, 562 U.S. at 98. 3 Boggs contends that because the trial court “held only insufficient and piecemeal 4 hearings on these issues,” the Arizona Supreme Court’s decision was based on an 5 unreasonable determination of the facts. (Doc. 15 at 136–37.) In challenging the trial 6 court’s fact-finding process, Boggs must demonstrate “that any appellate court to whom 7 the defect is pointed out would be unreasonable in holding that the state court’s fact-finding 8 process was adequate.” Taylor, 366 F.3d at 1000. Boggs does not meet this burden. The 9 trial court repeatedly addressed Boggs’s concerns and held two separate hearings. Boggs’s 10 contention that the state court’s fact-finding process was inadequate and that the state court 11 unreasonably determined the facts does not satisfy § 2254(d)(2). Id. (explaining that factual 12 determination is unreasonable only if “an appellate panel, applying the normal standards 13 of appellate review, could not reasonably conclude that the finding is supported by the 14 record”). Claim 6 is denied 15 Claim 15 16 Boggs alleges that the Arizona courts violated his Confrontation Clause and Due 17 Process rights by permitting the State to introduce improper and unreliable rebuttal 18 evidence in the penalty phase of trial. (Doc. 15 at 224.) Boggs exhausted the due process 19 aspect of this claim in state court.8 The Arizona Supreme Court rejected the claim on the 20 merits. Boggs, 218 Ariz. at 125–26, 185 P.3d at 339–40. 21 During the penalty phase, Boggs presented mental health evidence as mitigation. 22 Boggs’s experts diagnosed him with PTSD and bi-polar disorder. (RT 5/10/05 at 50–178.) 23 Both experts testified about Boggs’s membership and role in the militia he formed with 24 8 Boggs concedes he did not exhaust his Confrontation Clause claim in state court. 25 (Doc. 15 at 225.) He argues that the ineffective assistance of PCR and appellate counsel excuses any procedurally defaulted aspects of the claim. (Id.) The ineffective assistance of 26 PCR counsel excuses only claims of ineffective assistance of trial counsel. Pizzuto, 783 F.3d at 1177; Hunton, 732 F.3d at 1126–27. Boggs also failed to exhaust a claim that 27 appellate counsel was ineffective in failing to raise the Confrontation Clause allegations in Claim 15, so appellate counsel ineffectiveness does not excuse the claim’s default. See 28 Edwards, 529 U.S. at 451–53; Carrier, 477 U.S. at 489–90. Those aspects of the claim are defaulted and barred from review.

- 36 - 1 Hargrave, and whether the militia was a delusional manifestation of his bi-polar disorder. 2 (Id. at 101–03, 105–07, 125–27, 160–63, 167–68.) After Boggs presented his mitigation 3 evidence, the State advised the court that it would seek to enter in rebuttal the threatening 4 letters Boggs wrote to Detective Vogel and the prosecutor. (RT 5/11/05 at 5.) Boggs 5 objected to the admission of the evidence, arguing that the threatening letters did not rebut 6 any of the mental health evidence he presented. (Id. at 4.) The trial court rejected Boggs’s 7 argument, finding that the letters were relevant to Boggs’s mental health history and his 8 involvement in the militia. (Id. at 6–7.) 9 The State then called Detective Vogel, who testified that he had received a letter 10 that stated: “We warned you not to go near our chief. You did. Now you die. We know 11 where you live. Breathe deep.” (Id. at 49–51.) Vogel testified that as a result of the letter, 12 Boggs’s jail cell was searched and an address book was found with Vogel’s name, a 13 telephone number, and a residential address. (Id. at 51–53.) Detective Vogel also testified 14 about a second letter addressed to the trial prosecutor that was intercepted at the jail. This 15 letter stated, “Don’t fuck with our chief. We have you on our radar. We know where you 16 live and can get you. Breathe deep.” (Id. at 53–54.) 17 On direct appeal, the court found the letters were relevant, not unduly prejudicial, 18 and sufficiently reliable, and that their admission did not violate due process. Boggs, 218 19 Ariz. at 338–40, 185 P.3d at 124–26. 20 We agree that the threatening letters are relevant to rebut mitigation 21 testimony. The thrust of the mitigation was that Boggs suffers from mental health issues, including bipolar disorder. To support the diagnosis, two 22 mental health experts, Drs. Ruiz and Lanyon, testified about Boggs’ 23 delusional involvement in a militia and suggested that, because the militia was a delusion, Boggs could not cause any harm through the entity. Dr. Ruiz 24 stated that although she had no knowledge to confirm or disaffirm the 25 militia’s existence, she believed Boggs’ militia activities to be delusional. When the State questioned Dr. Lanyon about the concrete manifestations of 26 the current militia, including uniforms and weapons, he responded: “That to 27 me seemed to support the delusional aspects of this that he was—had a big organization that was going to shake up the world or something, going to put 28 bombs in, you know.” Boggs’ letters that threatened harm for mistreating the

- 37 - 1 leader of the militia rebuts the suggestion that Boggs’ militia involvement 2 was benign.

3 Id. at 125, 185 P.3d at 339. The court then determined that the letters were not unduly

4 prejudicial because they were not admitted to show Boggs’s bad character. Id. at 125–26,

5 185 P.3d at 339–40.

6 Next, the court found that the letters comported with the requirements of due

7 process:

8 Introduction of the letters at the penalty phase did not violate due process. As a primary matter, the threatening letters in this case were neither hearsay nor 9 testimonial. Furthermore, Boggs knew of the threatening letters before the 10 trial started, as he successfully kept them out of the guilt phase. Yet, Boggs failed to object on foundational grounds at the sentencing hearing. When the 11 trial judge specifically asked the defense if it objected to the foundation of 12 the evidence, the defense responded in the negative. On cross-examination, the defense questioned the reliability of the threatening letters by comparing 13 the handwriting with another letter signed by Boggs and noting that one of 14 the letters contained no evidence that it was sent from jail. Thus, the defense did address the letters’ reliability before the jury, but did not object to their 15 foundation. 16 Boggs now asserts that the threatening letters are not reliable because the 17 State provided insufficient proof that he wrote them. This argument is not 18 persuasive. First, nearly identical letters were sent to the lead detective and to the prosecutor. Second, Boggs’ militia title was “Chief of Staff,” and the 19 letters specifically referred to the “Chief.” Third, jail staff intercepted one of the letters, which an inmate stated that Boggs had asked him to mail. Finally, 20 the letters stated, “we know where you live,” and Boggs possessed an address 21 for Vogel. The introduction of the threatening letters at the penalty phase did not violate Boggs’ due process rights. 22 Id. at 126, 185 P.3d at 340. 23 This decision is neither contrary to nor an unreasonable application of clearly 24 established federal law, nor is it based on an unreasonable determination of the facts. 25 “Under AEDPA, even clearly erroneous admissions of evidence that render a trial 26 fundamentally unfair may not permit the grant of federal habeas corpus relief if not 27 forbidden by ‘clearly established Federal law,’ as laid out by the Supreme Court.” Holley, 28 568 F.3d at 1101. The Supreme Court has never held that the admission of irrelevant or

- 38 - 1 prejudicial evidence violates due process. Id. (“Although the Court has been clear that a 2 writ should be issued when constitutional errors have rendered the trial fundamentally 3 unfair, . . . it has not yet made a clear ruling that admission of irrelevant or overtly 4 prejudicial evidence constitutes a due process violation sufficient to warrant issuance of 5 the writ.”). Because there is no clearly established federal law holding that the admission 6 of the rebuttal testimony would amount to a constitutional violation, the Arizona Supreme 7 Court’s denial of this claim was not an “unreasonable application” under § 2254(d)(1). See 8 id. at 1097–98 (citing Carey v. Musladin, 549 U.S. 70, 77 (2006)). 9 Nor was Detective Vogel’s testimony regarding the letters so unduly prejudicial that 10 it rendered Boggs’s trial fundamentally unfair. See Estelle, 502 U.S. at 70; Jammal, 926 11 F.2d at 920. As the Arizona Supreme Court concluded, the testimony regarding the letters 12 was relevant to rebut Boggs’s mitigation evidence. Boggs placed his mental health at issue 13 when he presented evidence claiming he suffered from PTSD and bi-polar disorder. His 14 mental health experts testified that he suffered from delusions, including delusional beliefs 15 about his participation in a militia. Boggs, 218 Ariz. at 339, 185 P.3d at 125. The letters 16 served to rebut evidence that Boggs’s role in a militia was delusional and therefore 17 harmless. In addition, as the Arizona Supreme Court noted, id. at 340, 218 Ariz. at 126, the 18 letters were supported by sufficient indicia of reliability that Boggs was their author. See 19 Williams v. Oklahoma, 358 U.S. 576, 584 (1959) (holding that a court may “consider 20 responsible unsworn or ‘out-of-court’ information relative to the circumstances of the 21 crime and to the convicted person’s life and characteristics” without running afoul of due 22 process). Claim 15 is denied. 23 Claim 19 24 Boggs alleges that the application of Arizona’s newly-enacted death penalty statute 25 to his case violated the Ex Post Facto Clause of the United States Constitution. (Doc. 15 at 26 308.) The Arizona Supreme Court rejected the claim on direct appeal. Boggs, 218 Ariz. at 27 344, 185 P.3d at 130. 28

- 39 - 1 Boggs committed the murders on May 19, 2002. He was indicted on June 14, 2002. 2 The State filed its notice of intent to seek death on July 8, 2002. 3 On June 24, 2002, the United States Supreme Court invalidated Arizona’s death 4 penalty scheme under which judges rather than juries found the facts making a defendant 5 eligible for the death penalty. Ring v. Arizona (Ring I), 536 U.S. 584 (2002). On August 1, 6 2002, Arizona amended its death penalty statute to comply with Ring. 7 According to Boggs, “[u]nder the law in place at the time of the notice of intent, 8 Boggs could not be sentenced to death. The Arizona Supreme Court, in allowing the trial 9 court’s application of the newly enacted death penalty statute to stand, violated the 10 prohibition on the retroactive application of substantive changes in the law.” (Doc. 15 at 11 309.) This argument is incorrect. 12 In denying this claim, the Arizona Supreme Court cited its opinion in State v. Ring 13 (Ring II), 204 Ariz. 534, 545–47, 65 P.3d 915, 926–28 (2003), holding that the Ex Post 14 Facto Clause did not prohibit the resentencing of capital defendants after Ring I because 15 the new statute provided for only procedural changes and did not place defendants in 16 jeopardy of a greater punishment. Boggs, 218 Ariz. at 344, 185 P.3d at 130. 17 The ex post facto doctrine prohibits a state from “retroactively alter[ing] the 18 definitions of crimes or increas[ing] the punishment for criminal acts.” Collins v. 19 Youngblood, 497 U.S. 37, 43 (1990). “[A]ny statute which punishes as a crime an act 20 previously committed, which was innocent when done; which makes more burdensome the 21 punishment for a crime, after its commission, or which deprives one charged with crime of 22 any defense available according to law at the time when the act was committed, is 23 prohibited as ex post facto.” Dobbert v. Florida, 432 U.S. 282, 292 (1977) (quoting Beazell 24 v. Ohio, 269 U.S. 167, 169–70 (1925)). 25 In Dobbert, the defendant was sentenced to death in Florida under a capital 26 sentencing system that was subsequently declared unconstitutional. 432 U.S. at 288. 27 Dobbert argued that he could not be sentenced to death under the amended Florida 28 procedures because at the time of his original sentencing the death penalty was not an

- 40 - 1 available punishment. Id. at 297. The Supreme Court rejected the argument and held that 2 there was no ex post facto violation because the changes in Florida’s statute were “clearly 3 procedural.” Id. at 293. “The new statute simply altered the methods employed in 4 determining whether the death penalty was to be imposed; there was no change in the 5 quantum of punishment attached to the crime.” Id. at 293–94. 6 Under Dobbert, the post-Ring procedural changes in Arizona’s death penalty are not 7 ex post facto laws. See Schriro v. Summerlin, 542 U.S. 348, 353–54 (2004) (“Ring’s 8 holding is properly classified as procedural.”). 9 Boggs’s argument is not distinguishable from the claim rejected in Dobbert, where 10 the defendant contended there was “no death penalty ‘in effect’ in Florida” when he 11 committed the murders. 432 U.S. at 297. The Court responded that “this sophistic argument 12 mocks the substance of the Ex Post Facto Clause.” Id. Similarly, the statute in place at the 13 time Boggs committed the murder and the statute enacted after Ring provided for the same 14 quantum of punishment. While Ring I invalidated the procedure by which the death penalty 15 was imposed in Arizona, it did not eliminate the death penalty as a possible sentence for 16 first-degree murder. 17 The decision of the Arizona Supreme Court rejecting Boggs’s ex post facto claim 18 was neither contrary to nor an unreasonable application of clearly established federal law. 19 Claim 19 is denied. 20 Claim 25 21 Boggs alleges that because the aggravating factors were not included in the 22 indictment, he was not provided sufficient notice of the factors, and there was no finding 23 of probable cause as to any of the aggravating factors, as required by the Fifth, Sixth, 24 Eighth, and Fourteenth Amendments. (Doc. 15 at 392.) The Arizona Supreme Court denied 25 this claim on direct appeal. Boggs, 218 Ariz. at 344, 185 P.3d at 130. 26 This claim is meritless. The Supreme Court has held that facts constituting the 27 elements of an offense rather than just a sentencing enhancement must be charged in a 28 federal indictment. See Jones v. United States, 526 U.S. 227, 251–52 (1999). However, the

- 41 - 1 Fifth Amendment Due Process Clause does not incorporate the same requirements into 2 state criminal prosecutions by virtue of the Fourteenth Amendment. See Hurtado v. 3 California, 110 U.S. 516, 538 (1884); see also Branzburg v. Hayes, 408 U.S. 665, 688 n.25 4 (1972). Because states are not required by the Constitution to empanel grand juries for 5 purposes of indictment, they are not required to specify aggravating factors in an 6 indictment. Claim 25 is denied. 7 Claim 27 8 Boggs alleges that the trial court’s instructions limited the mitigating evidence the 9 jury could consider, in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments. 10 (Doc. 15 at 398.) The Arizona Supreme Court denied this claim on appeal. Boggs, 218 11 Ariz. at 344, 185 P.3d at 130. 12 The United States Supreme Court has specifically rejected the argument that the 13 Arizona statute is unconstitutional because it imposes on defendants the burden of 14 establishing, by a preponderance of the evidence, the existence of mitigating circumstances 15 sufficiently substantial to call for leniency. Walton v. Arizona, 497 U.S. 639, 649–51 16 (1990), overruled on other grounds by Ring I, 536 U.S. at 584. While Boggs cites Tennard 17 v. Dretke, 542 U.S. 274, 285 (2004) for the proposition that “the ‘Eighth Amendment 18 requires that the jury be able to consider and give effect to’ a capital defendant’s mitigating 19 evidence,” Walton still controls the outcome of this claim. 20 Since its decision in Tennard, the Supreme Court has subsequently reaffirmed that 21 the reasoning in Walton applies to the burdens of persuasion in capital sentencings. See 22 Kansas v. Marsh, 548 U.S. 163, 173 (2006) (holding that “a state death penalty statute may 23 place the burden on the defendant to prove that mitigating circumstances outweigh 24 aggravating circumstances”). Thus, once the government has properly carried its burden of 25 establishing death eligibility, “it [does] not offend the Constitution to put the burden on 26 [defendant] to prove any mitigating factor by a preponderance of the evidence.” United 27 States v. Mitchell, 502 F.3d 931, 993 (9th Cir. 2007) (citing Marsh, 548 U.S. at 173, and 28

- 42 - 1 Walton, 497 U.S. at 649); see also Jeffers v. Lewis, 38 F.3d 411, 418 (9th Cir. 1994). Claim 2 27 is denied. 3 Claim 29 4 Boggs alleges that Arizona’s capital-sentencing scheme violates the Eighth and 5 Fourteenth Amendments because it creates a presumption of a sentence of death and 6 requires a defendant to affirmatively prove that the sentence should spare his life. (Doc. 15 7 at 402.) The Arizona Supreme Court denied this claim on appeal. Boggs, 218 Ariz. at 345, 8 185 P.3d at 131. The claim is meritless. 9 In Walton, the Supreme Court rejected the argument that “Arizona’s allocation of 10 the burdens of proof in a capital sentencing proceeding violates the Constitution.” 497 U.S. 11 at 651. Walton also rejected the claim that Arizona’s death penalty statute is impermissibly 12 mandatory and creates a presumption in favor of the death penalty because it provides that 13 the death penalty “shall” be imposed if one or more aggravating factors are found and 14 mitigating circumstances are insufficient to call for leniency. Id. at 651–52 (citing Blystone 15 v. Pennsylvania, 494 U.S. 299 (1990), and Boyde v. California, 494 U.S. 370 (1990)); see 16 also Marsh, 548 U.S. at 173 (relying on Walton to uphold Kansas’s death penalty statute, 17 which directs imposition of the death penalty when the state has proved that mitigating 18 factors do not outweigh aggravators); Smith v. Stewart, 140 F.3d 1263, 1272 (9th Cir. 1998) 19 (summarily rejecting challenges to the “mandatory” quality of Arizona’s death penalty 20 statute and its failure to apply a beyond-a-reasonable-doubt standard). In addition, the 21 Supreme Court has held that a capital sentencer “need not be instructed how to weigh any 22 particular fact in the capital sentencing decision.” Tuilaepa v. California, 512 U.S. 967, 23 979 (1994). Claim 29 is denied. 24 Claim 31 25 Boggs alleges that Arizona’s capital-sentencing scheme discriminates against 26 young, indigent male defendants, in violation of the Fourteenth Amendment. (Doc. 15 at 27 405.) The Arizona Supreme Court denied this claim on appeal. Boggs, 218 Ariz. at 345, 28 185 P.3d at 131. The claim is meritless.

- 43 - 1 Clearly established federal law holds that “a defendant who alleges an equal 2 protection violation has the burden of proving ‘the existence of purposeful discrimination’” 3 and must demonstrate that the purposeful discrimination “had a discriminatory effect” on 4 him. McCleskey v. Kemp, 481 U.S. 279, 292 (1987) (quoting Whitus v. Georgia, 385 U.S. 5 545, 550 (1967)). Therefore, to prevail on this claim Boggs “must prove that the 6 decisionmakers in his case acted with discriminatory purpose.” Id. 7 Boggs’s statistical claim that male murderers are overrepresented on Arizona’s 8 death row in comparison to the population of murderers generally is insufficient to meet 9 this burden. See Richmond v. Lewis, 948 F.2d 1473, 1490–91 (9th Cir. 1990) (holding that 10 statistical evidence that Arizona’s death penalty is discriminatorily imposed based on race, 11 sex, and socioeconomic background is insufficient to prove that decision makers in 12 petitioner’s case acted with discriminatory purpose) vacated on other grounds, 986 F.2d 13 1583 (9th Cir. 1993). Boggs fails to allege any facts to suggest that the jury in his case 14 acted with discriminatory purpose. Claim 31 is denied. 15 Claim 32 16 Boggs alleges that the absence of proportionality review of death sentences by 17 Arizona courts denies capital defendants due process of law and equal protection and 18 amounts to cruel and unusual punishment in violation of the Fifth, Eighth, and Fourteenth 19 Amendments. (Doc. 15 at 407.) The Arizona Supreme Court denied this claim on appeal. 20 Boggs, 218 Ariz. at 345, 185 P.3d at 131. The claim is meritless. 21 There is no federal constitutional right to proportionality review of a death sentence. 22 McCleskey, 481 U.S. at 306 (citing Pulley v. Harris, 465 U.S. 37, 43, 50–51 (1984)). The 23 Arizona Supreme Court discontinued the practice in 1992, State v. Salazar, 173 Ariz. 399, 24 417, 844 P.2d 566, 584 (1992). The Ninth Circuit has explained that the “substantive right 25 to be free from a disproportionate sentence” is protected by the application of “adequately 26 narrowed aggravating circumstance[s].” Ceja v. Stewart, 97 F.3d 1246, 1252 (9th Cir. 27 1996). Claim 32 is denied. 28

- 44 - 1 Claim 33 2 Boggs alleges that the prosecutor’s discretion to seek the death penalty is without 3 standards and therefore violates the Eighth and Fourteenth Amendments. (Doc. 15 at 408.) 4 The Arizona Supreme Court denied this claim on appeal. Boggs, 218 Ariz. at 345, 185 P.3d 5 at 131. This claim is meritless. 6 The Supreme Court has held that prosecutors have wide discretion in making the 7 decision whether to seek the death penalty. See McCleskey, 481 U.S. at 296–97; Gregg v. 8 Georgia, 428 U.S. 153, 199 (1976) (holding that pre-sentencing decisions by actors in the 9 criminal justice system that may remove an accused from consideration for the death 10 penalty are not unconstitutional). In Smith, the Ninth Circuit rejected the argument that 11 Arizona’s death penalty statute is constitutionally infirm because “the prosecutor can 12 decide whether to seek the death penalty.” 140 F.3d at 1272. Claim 33 is denied 13 Claim 34 14 Boggs alleges that Arizona’s death penalty scheme is unconstitutional because it 15 provides no objective standards to guide the jury in weighing the aggravating and 16 mitigating circumstances, in violation of the Eighth and Fourteenth Amendments. (Doc. 15 17 at 409.) The Arizona Supreme Court denied this claim on appeal. Boggs, 218 Ariz. at 345– 18 46, 185 P.3d at 131–32. This claim is meritless. 19 The Supreme Court has held that a “capital sentencer need not be instructed how to 20 weigh any particular fact in the capital sentencing decision.” Tuilaepa, 512 U.S. at 979; 21 see Franklin v. Lynaugh, 487 U.S. 164, 179 (1988) (“[W]e have never held that a specific 22 method for balancing mitigating and aggravating factors in a capital sentencing proceeding 23 is constitutionally required.”); Zant v. Stephens, 462 U.S. 862, 875 n.13 (1987) (explaining 24 that “specific standards for balancing aggravating against mitigating circumstances are not 25 constitutionally required”). Claim 34 is denied. 26 Claim 35 27 Boggs alleges that Arizona’s capital sentencing scheme violates the Eighth and 28 Fourteenth Amendments because it requires a death sentence whenever one aggravating

- 45 - 1 circumstance and no mitigating circumstances are found with respect to an eligible 2 defendant. (Doc. 15 at 410.) The Arizona Supreme Court denied this claim on appeal. 3 Boggs, 218 Ariz. at 346, 185 P.3d at 132. This claim is meritless. 4 Arizona’s death penalty scheme allows certain, statutorily-defined aggravating 5 factors to be considered in determining eligibility for the death penalty. For death to be an 6 appropriate sentence, at least one aggravating factor must be found and the court must 7 determine that mitigating circumstances do not warrant a lesser sentence. Again, this 8 scheme has been found constitutionally sufficient. See Lewis v. Jeffers, 497 U.S. 764, 774– 9 77 (1990); Walton, 497 U.S. at 649–56; Woratzeck v. Stewart, 97 F.3d 329, 334–35 (9th 10 Cir. 1996); see also Smith, 140 F.3d at 1272. Claim 35 is denied. 11 Claim 36 12 Boggs alleges that the trial court violated his constitutional rights under the Fifth, 13 Sixth, Eighth, and Fourteenth Amendments by allowing victim impact evidence to be 14 presented at the penalty phase of his trial. (Doc. 14 at 412.) The Arizona Supreme Court 15 denied this claim on appeal. Boggs, 218 Ariz. at 346, 185 P.3d at 130. The claim is without 16 merit. 17 In Booth v. Maryland, 482 U.S. 496, 509 (1987), the Supreme Court held that the 18 introduction of a victim impact statement to a capital sentencing jury violated the Eighth 19 Amendment. In Payne v. Tennessee, 501 U.S. 808, 827 (1991), the Court revisited Booth, 20 overruling it in part. The Court held that the Eighth Amendment does not erect a per se 21 barrier to the admission of victim impact evidence but left intact Booth’s prohibition on the 22 admission of characterizations and opinions from the victim’s family about the crime, the 23 defendant, or the appropriate sentence. Id. at 830 n.2. 24 At Boggs’s sentencing, the trial court allowed family members of the three victims 25 to make statements. (RT 5/9/05 at 16–48.) The court instructed the jury that “the law allows 26 victims, relatives, close relatives of the decedents in this case to provide you with 27 information about the impact of the death of the decedents upon them and their families,” 28 and informed the jury that it “may consider this information to the extent it may rebut

- 46 - 1 mitigation provided by the defendant. You may not consider the information as new, 2 aggravating circumstances.” (Id. at 15.) 3 Boggs asserts that the victim impact statements commented on the crime, but this is 4 not supported by the record. Instead, the statements described the family members’ feelings 5 of loss. (RT 5/9/05 at 16–48.) The statements were therefore permissible “evidence about 6 the victim and about the impact of the murder on the victim’s family.” Payne, 501 U.S. at 7 827. The statements did not offer characterizations about the crime, the defendant, or the 8 appropriate sentence. Payne, 501 U.S. at 830 n.2. To the extent any of the statements 9 referred to the crime, their admission did not have a “substantial and injurious effect or 10 influence in determining” Boggs’s sentence. Brecht, 507 U.S. at 637; see, e.g., Hooper v. 11 Mullin, 314 F.3d 1162, 1174 (10th Cir. 2002) (applying harmless error standard to 12 admission of improper victim impact statement). 13 Boggs also contends that his Confrontation Clause rights were violated because the 14 victim impact statements were not subjected to cross-examination. This argument fails 15 because Sixth Amendment confrontation rights do not apply in sentencing proceedings. 16 See United States v. Littlesun, 444 F.3d 1196, 1199 (9th Cir. 2006) (“Crawford does not 17 expressly speak to sentencing. . . . Crawford speaks to trial testimony, not sentencing.”); 18 see also, e.g., United States v. Monteiro, 417 F.3d 208, 215 (1st Cir. 2005); United States 19 v. Martinez, 413 F.3d 239, 243 (2d Cir. 2005); United States v. Kirby, 418 F.3d 621, 627– 20 28 (6th Cir. 2005); United States v. Fleck, 413 F.3d 883, 894 (8th Cir. 2005); United States 21 v. Cantellano, 430 F.3d 1142, 1146 (11th Cir. 2005). Claim 36 is denied. 22 C. Ineffective Assistance of Counsel Claims 23 In Claims 12, 14, 16, and 20, Boggs raises numerous allegations of ineffective 24 assistance of trial and appellate counsel. 25 Claims of ineffective assistance of counsel are governed by the principles set forth 26 in Strickland v. Washington, 466 U.S. 668 (1984). To prevail under Strickland, a petitioner 27 must show that counsel’s representation fell below an objective standard of reasonableness 28 and that the deficiency prejudiced the defense. Id. at 687–88. The inquiry under Strickland

- 47 - 1 is highly deferential. “A fair assessment of attorney performance requires that every effort 2 be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of 3 counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at 4 the time.” Id. at 689; see Wong v. Belmontes, 558 U.S. 15, 16–17 (2009) (per curiam); 5 Bobby v. Van Hook, 558 U.S. 4, 7–9 (2009) (per curiam); Cox v. Ayers, 613 F.3d 883, 893 6 (9th Cir. 2010). 7 To satisfy Strickland’s first prong, a defendant must overcome “the presumption 8 that, under the circumstances, the challenged action ‘might be considered sound trial 9 strategy.’” Strickland, 466 U.S. at 689. “The question is whether an attorney’s 10 representation amounted to incompetence under ‘prevailing professional norms,’ not 11 whether it deviated from best practices or most common custom.” Richter, 562 U.S. at 105 12 (quoting Strickland, 466 U.S. at 690). “The defendant bears the heavy burden of proving 13 that counsel’s assistance was neither reasonable nor the result of sound trial strategy.” 14 Murtishaw v. Woodford, 255 F.3d 926, 939 (9th Cir. 2001) (citing Strickland, 466 U.S. at 15 689). 16 With respect to Strickland’s second prong, a petitioner must affirmatively prove 17 prejudice by “show[ing] that there is a reasonable probability that, but for counsel’s 18 unprofessional errors, the result of the proceeding would have been different. A reasonable 19 probability is a probability sufficient to undermine confidence in the outcome.” 466 U.S. 20 at 694. This showing “requires a ‘substantial,’ not just ‘conceivable,’ likelihood of a 21 different result.” Pinholster, 563 U.S. at 189 (quoting Richter, 562 U.S. at 112). 22 Under the AEDPA, ineffective assistance of counsel claims are subject to two layers 23 of deference. “Surmounting Strickland’s high bar is never an easy task,” Padilla v. 24 Kentucky, 559 U.S. 356, 371 (2010), and “[e]stablishing that a state court’s application of 25 Strickland was unreasonable under § 2254(d) is all the more difficult.” Richter, 562 U.S. 26 at 105; see Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (discussing “doubly 27 deferential judicial review that applies to a Strickland claim under the § 2254(d)(1) 28 standard”).

- 48 - 1 Claim 12 2 Claim 12 consists of nine allegations of ineffective assistance of counsel at the guilt 3 phase of trial. (Doc. 15 at 175–211.) Boggs raised two of the claims, 12(A) and 12(B), 4 during the PCR proceedings where they were rejected on the merits. Boggs alleges that the 5 default of the remaining claims is excused under Martinez by the ineffective assistance of 6 PCR counsel. 7 Background 8 Boggs was indicted on three counts of first-degree murder on June 14, 2002. (ROA 9 19.) On July 10, 2002, the court appointed Maria Schaffer, with the Office of the Legal 10 Advocate, to represent Boggs. Schaffer was later joined by James Logan. (ROA 33.) In 11 April 2003, Schaffer and Logan were authorized to withdraw from Boggs’s case. (ROA 12 109.) Herman Alcantar was appointed to take over representation and was later joined by 13 Nathaniel Carr as second chair. (ROA 115.) Boggs was granted pro per status on 14 September 3, 2004, and trial counsel were ordered to remain on the case as advisory 15 counsel. (ROA 170.) Trial counsel resumed their representation of Boggs after jury 16 selection on April 11, 2005. (ROA 235.) 17 Claim 12(A) 18 Boggs alleges that trial counsel performed ineffectively by failing to file numerous 19 motions and make accompanying objections.9 (Doc. 15 at 176.) Boggs asserts that counsel 20 should have filed motions in limine to keep out damaging evidence, challenges to Boggs’s 21 competency, challenges to the aggravating factors, and challenges to the constitutionality 22 of the death penalty. (Doc. 15 at 178–79.) 23 The PCR court rejected this claim. The court first reviewed the motions that Boggs 24 contended should have been filed. (Doc. 21, Ex. K, ROA-PCR 64 at 7.) The court then 25 concluded: 26 9 As Boggs notes, previous counsel Schaffer and Logan filed “numerous substantive 27 motions,” including motions to stay the proceedings due to the decision in Ring I and to strike the allegation of death, for a competency evaluation under Rule 11, to suppress 28 statements, to preclude use of victim impact evidence, and a response to the State’s use of Rule 404(b) evidence. (Doc. 15 at 177.)

- 49 - 1 These motions have been rejected by the Arizona Supreme Court, either in 2 Petitioner’s direct appeal or in other capital appeals. See, e.g., Boggs, 218 Ariz. at 339, 340-42, 346, 185 P.3d at 124–25, 126–28, 132 (presumption of 3 death; limiting State’s rebuttal in penalty phase; striking aggravators); State v. Villalobos, 225 Ariz. 74, 83, 235 P.3d 227, 236 (2010) (nexus between 4 mitigation and offense); State v. Hargrave, 225 Ariz. 1, 21, 234 P.3d 569, 5 589 (2010) (challenges to A.R.S. § 13-703); State v. Moore, 222 Ariz. 1, 17, 213 P.3d 150, 166 (2009) (death qualification of jurors). Counsel is not 6 ineffective for failing to raise issues that have been rejected by higher courts. 7 In addition, Petitioner concedes that counsel filed a number of pretrial motions, negating his claim that counsel failed to subject the case to 8 meaningful adversarial testing. See State v. Atwood, 171 Ariz. 576, 832 P.2d 9 593 (1992); see also Strickland, 466 U.S. at 688 (“Counsel . . . has a duty to bring to bear such skill and knowledge as will render the trial a reliable 10 adversarial testing process”) (citation omitted). 11 Based on the foregoing, the Court finds that Petitioner has failed to raise a 12 colorable claim for relief and to establish either deficient performance or 13 prejudice.

14 (Id.) 15 This decision was neither contrary to nor an unreasonable application of clearly 16 established federal law, nor was it based on an unreasonable determination of the facts. 17 Quoting United States v. Cronic, 466 U.S. 648, 659 (1984), Boggs argues that when 18 “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, 19 then there has been a denial of Sixth Amendment rights that makes the adversary process 20 itself presumptively unreliable.” (Doc. 15 at 181–82.) He contends that the PCR court erred 21 because under Cronic prejudice is presumed. (Id. at 182.) This argument fails because 22 Cronic is inapplicable under the circumstances of this case. 23 Cronic is “reserved for situations in which counsel has entirely failed to function as 24 the client’s advocate.” Florida v. Nixon, 543 U.S. 175, 189 (2004). In Bell v. Cone, 535 25 U.S. 685, 696–97 (2002), the Court explained that to meet the Cronic standard “the 26 attorney’s failure must be complete.” See United States v. Thomas, 417 F.3d 1053, 1057 27 (9th Cir. 2005) (explaining that in Cone “the Court emphasized that Cronic’s exception for 28 failing to test the prosecution’s case applies when the attorney’s failure to oppose the

- 50 - 1 prosecution goes to the proceeding as a whole—not when the failure occurs only at specific 2 points in the trial”). 3 Boggs does not argue that trial counsel failed to oppose the prosecution throughout 4 the proceeding as a whole, only that they failed to file and respond to specific motions. 5 This does not meet the Cronic standard. As Respondents note, the State’s case was 6 subjected to meaningful adversarial testing through prior counsel’s motions, Boggs’ pro 7 per motions and arguments, cross-examination of the State’s witnesses, counsel’s opening 8 statements and closing arguments in all three phases of trial, counsel’s objections to some 9 of the State’s militia evidence, and the presentation of mitigation evidence in the penalty 10 phase. (Doc. 21 at 159–60.) 11 The PCR court properly applied the Strickland standard to this claim and reasonably 12 determined that Boggs had shown neither deficient performance nor prejudice based on 13 counsel’s failure to file certain motions. This claim falls short of satisfying the “doubly 14 deferential” standard of Strickland and § 2254(d). Richter, 562 U.S. at 105. Claim 12(A) 15 is denied. 16 Claim 12(B) 17 Boggs alleges that counsel performed ineffectively by failing to adequately object 18 to or rebut the State’s 404(b) evidence concerning Boggs’s involvement in a militia and his 19 white supremacist views. (Id. at 183.) The PCR court rejected the claim: 20 Petitioner was involved in a militia group known as the “Imperial Royal 21 Guard.” Beyond the evidence demonstrating that the purpose of the “Imperial Royal Guard” was to “uplift” the white race, in January 2004 Petitioner had 22 sent a letter to the lead detective in his case in which he stated that “his 23 motivation for the murders was not pecuniary, but rather, based on race.” Boggs, 218 Ariz. at 331, 185 P.3d at 117 (emphasis added). In this case the 24 victims were all members of minority groups. 25 Petitioner’s views on “uplifting” the white race and fostering negative views 26 of minority groups served not only as a motive for the murders, but also 27 explained his association with Hargrave and their respective girlfriends and his willingness to become involved in the crimes. His own words render the 28 militia testimony both relevant and admissible, albeit prejudicial. The jurors

- 51 - 1 were provided with context for the murders enabling them to understand 2 Petitioner’s motivation.

3 Under the circumstances presented, the militia evidence was admissible under Rule 404(b). Accordingly, Petitioner’s counsel was not ineffective for 4 failing to object to its admission. See State v. Pereida, 170 Ariz. 450, 454, 5 825 P.2d 975, 979 (App. 1992) (failure to object to admissible evidence not deficient performance). Moreover, counsel raised an objection prior to trial 6 but the court did not consider the objection due to Petitioner subsequently 7 being allowed to represent himself.FN4 8 FN4. In January 2003, Petitioner’s counsel filed a response 9 opposing the State’s motion regarding the use of Rule 404(b) evidence. Subsequently Petitioner was allowed to proceed pro 10 per but then, during jury selection, asked that counsel provide 11 assistance. The 404(b) motion therefore was not addressed by counsel until just before opening statements when the 12 prosecutor indicated that he would refer to the militia 13 connection during opening.

14 Based on the foregoing, the Court finds that Petitioner has failed to raise a 15 colorable claim for relief and to establish either deficient performance or prejudice. It was Petitioner personally who contended pretrial that the 16 murders were racially motivated. He cannot now complain that counsel acted ineffectively when his own actions rendered the complained-of evidence 17 admissible. 18 (Doc. 21, Ex. K, ROA-PCR 64 at 5.) 19 This decision was neither contrary to nor an unreasonable application of clearly 20 established federal law, nor was it based on an unreasonable determination of the facts. 21 As the PCR court found, counsel did not perform ineffectively because the militia 22 evidence was admissible. “Counsel’s failure to make a futile motion does not constitute 23 ineffective assistance of counsel.” James v. Borg, 24 F.3d 20, 27 (9th Cir. 1994); see Rupe 24 v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (explaining that “the failure to take a futile 25 action can never be deficient performance”); Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir. 26 1985) (“Failure to raise a meritless argument does not constitute ineffective assistance.”). 27 The State offered the militia evidence to show racial bias as a motive for the 28 murders. The Arizona Supreme Court concluded that a “racial motivation” applied to all

- 52 - 1 three murders. Boggs, 218 Ariz. at 342, 183 P.3d at 128. In Hargrave’s appeal from his 2 conviction, the Arizona Supreme Court held that the militia evidence was properly 3 admitted under Rule 404(b) because it “was relevant to establish a motive for the crimes 4 and its probative value was not substantially outweighed by the prejudice it might have 5 caused.” State v. Hargrave, 225 Ariz. 1, 9, 234 P.3d 569, 577 (2010). Because the evidence 6 was admissible, any potential objection was futile, and the PCR court reasonably concluded 7 that counsel’s failure to challenge the evidence did not amount to ineffective assistance of 8 counsel. 9 Boggs asserts that counsel should have challenged and rebutted the militia evidence 10 with evidence that Boggs’s involvement with a militia group was a fantasy or a delusion. 11 As Respondents note, however, such evidence would not have affected the admissibility of 12 the militia and racial bias evidence as proof of motive. Moreover, evidence of the militia’s 13 limited size and scope was presented to the jury, which learned that the militia consisted 14 only of Boggs, Hargrave, and their girlfriends. (RT 4/13/05 at 41, 58.) 15 The PCR court’s denial of this claim falls short of satisfying the “doubly” deferential 16 standard of Strickland and § 2254(d). Richter, 562 U.S. at 105. Claim 12(B) is denied. 17 Claim 12(C) 18 Boggs did not present the remaining allegations of Claim 12 in state court. The 19 default of these claims, however, is not excused under Martinez. Boggs has not established 20 that PCR counsel’s performance was ineffective—i.e., both deficient and prejudicial— 21 under Strickland. Therefore, he fails to establish cause for the claims’ default. Martinez, 22 566 U.S. at 14; Ramirez, 937 F.3d at 1241; see Clabourne, 745 F.3d at 377 (explaining that 23 prejudice, for purpose of assessing PCR counsel’s performance, is connected to the 24 strength of the underlying ineffective assistance of trial counsel claim). 25 In defaulted Claim 12(C), Boggs alleges that trial counsel performed ineffectively 26 by failing to ensure that bench conferences and off-the-record conversations were recorded 27 by the court reporter and by failing to make several pro per motions filed by Boggs part of 28

- 53 - 1 the appellate record. (Doc. 15 at 195–97.) PCR counsel did not perform ineffectively in 2 failing to raise this claim. 3 On direct appeal, the Arizona Supreme Court granted Boggs’s motion for a remand 4 to reconstruct the record on his penalty-phase pro per motion. (See RT 12/15/06.) With 5 respect to Boggs’s pro per motions to represent himself, the trial judge stated they “were 6 similar in what they said,” were “very bare bones,” and “cited the Faretta case and the 7 rule.” (RT 12/21/06 at 28.) He further recalled that the motions contained no information 8 that did not exist elsewhere in the record. (Id.) 9 The PCR court addressed Boggs’s claim that his rights were violated by the trial 10 court’s failure to record bench conferences. The court found “there is no indication that 11 [Boggs] was prejudiced” and “no allegation that following such sidebars the trial court took 12 action, or refrained from taking action, detrimental to [Boggs]’s rights or interests.” (Doc. 13 21, Ex. K, ROA-PCR 64 at 13.) 14 Under these circumstances, Boggs cannot meet his burden of proving that PCR 15 counsel performed deficiently or that he was prejudiced by PCR counsel’s failure to raise 16 this claim. PCR counsel raised a claim challenging the trial court’s failure to record bench 17 conferences. There was not a reasonable probability that the result of the PCR proceedings 18 would have been different if counsel had raised a claim challenging trial counsel’s handling 19 of the same issue. Therefore, Boggs fails to establish cause under Martinez for the default 20 of Claim 12(C), which remains defaulted and barred from federal review. 21 Claim 12(D) 22 In this defaulted claim, Boggs alleges that trial counsel performed ineffectively by 23 failing to challenge gruesome crime scene and autopsy photos. (Doc. 15 at 197.) PCR 24 counsel did not perform ineffectively in failing to raise this claim. 25 Under Arizona law, photographs of a murder victim’s body are relevant because 26 “the fact and cause of death are always relevant in a murder prosecution.” State v. Spreitz, 27 190 Ariz. 129, 142, 945 P.2d 1260, 1273 (1997). Specifically, photographs of a victim’s 28 body may be relevant:

- 54 - 1 to prove the corpus delicti, to identify the victim, to show the nature and 2 location of the fatal injury, to help determine the degree or atrociousness of the crime, to corroborate state witnesses, to illustrate or explain testimony, 3 and to corroborate the state’s theory of how and why the homicide was committed. 4 5 State v. Chapple, 135 Ariz. 281, 288, 660 P.2d 1208, 1215 (1983), superseded on other 6 grounds by A.R.S. § 13-756. Gruesome photos are admissible unless their sole purpose is 7 to inflame the jury. Id. 8 As Respondents note, the photographs here served a variety of purposes, 9 demonstrating the fact and cause of the victims’ deaths, assisting the jury in understanding 10 the crime scene, showing that the killings were premeditated and that the victims suffered 11 mentally as they were led into the freezer and shot, and illustrating the medical examiner’s 12 testimony. 13 Boggs contends that the testimony of the medical examiner and the officers who 14 saw the crime scene removed any probative value of the photographs. This argument is 15 unpersuasive. “The State ‘cannot be compelled to try its case in a sterile setting.’” State v. 16 Bocharski, 200 Ariz. 50, 56, 22 P.3d 43, 49 (2001). His argument that the photographs 17 were relevant only to uncontested issues fails because an “assertion that the photos were 18 probative only of matters not in dispute does not render them irrelevant as the state must 19 carry its burden of proof on uncontested issues as well as contested ones.” State v. Canez, 20 202 Ariz. 133, 154, 42 P.3d 564, 585 (2002), abrogated on other grounds by Ariz. R. Crim. 21 P. 16.2(b). 22 Because Boggs fails to show that the photographs were inadmissible, he cannot 23 show that PCR counsel was ineffective in failing to allege that trial counsel performed 24 ineffectively by failing to raise a meritless objection to the photos’ admission. See James, 25 24 F.3d at 27. There was not a reasonable probability that the result of the PCR proceedings 26 would have been different if counsel had raised the trial counsel ineffectiveness claim. 27 Therefore, Boggs fails to establish cause for the default of Claim 12(D), which remains 28 defaulted and barred from federal review.

- 55 - 1 Claim 12(E) 2 In this defaulted claim, Boggs alleges that trial counsel performed ineffectively by 3 failing to object to improper guilt-phase jury instructions. (Doc. 15 at 199.) PCR counsel 4 did not perform ineffectively in failing to raise this claim. 5 Boggs alleges the trial court erred in giving two guilt-phase jury instructions: the 6 instruction that “[p]roof beyond a reasonable doubt leaves you firmly convinced of the 7 defendant’s guilt” and the instruction that “[t]he defendant’s guilt or innocence is not 8 affected by the fact that another person or persons might have participated or cooperated 9 in the crime and are not on trial now.” (RT 5/2/05 at 98, 105.) 10 Both instructions were proper under Arizona law so objection would have been 11 futile. See State v. Forde, 315 P.3d 1200, 1222, (2014) (“We approved [the ‘firmly 12 convinced’] instructions in State v. Portillo, 182 Ariz. 592, 596, 898 P.2d 970, 974 (1995), 13 and have repeatedly rejected challenges to them.”). The “other participant” instruction 14 reflects Arizona’s standard jury instructions. See State Bar of Arizona, Revised Arizona 15 Jury Instructions (Criminal) Std. 12, at 22 (2012). 16 Trial counsel were not ineffective for failing to make futile objections to these 17 instructions. See James, 24 F.3d at 27. PCR counsel was not ineffective for failing to raise 18 this claim of ineffective assistance of trial counsel because there was not a reasonable 19 probability that the result of the PCR proceedings would have been different if the claim 20 had been raised. Therefore, Boggs fails to establish cause for the default of Claim 12(E), 21 which remains defaulted and barred from federal review. 22 Claim 12(F) 23 In this defaulted claim, Boggs alleges that trial counsel performed ineffectively by 24 failing to object to the admission of Hargrave’s statements blaming Boggs for the murders 25 and by failing to request a limiting instruction. (Doc. 15 at 200.) PCR counsel did not 26 perform ineffectively in failing to raise this claim. 27 First, the Arizona Supreme Court held that the statements attributed to Hargrave 28 “were admissible at least for the limited purpose of showing the context of the

- 56 - 1 interrogation” and that their admission did not violate Boggs’s Confrontation Clause rights. 2 Boggs, 218 Ariz. 334, 185 P.3d at 120. Since the statements were admissible, trial counsel 3 did not perform ineffectively by failing to make a futile objection. See James, 24 F.3d at 4 27. 5 Next, Boggs cannot show that he was prejudiced by counsel’s failure to request a 6 limiting instruction. Given the evidence against Boggs, including his own recorded 7 statements to Detective Vogel, there was not a reasonable probability of an acquittal if the 8 jury had received an instruction explaining that the statements attributed to Hargrave “were 9 introduced as part of the interrogation and could not be used to prove the truth of the matters 10 asserted.” 11 PCR counsel did not perform ineffectively by failing to raise this claim of 12 ineffective assistance of trial counsel. There was not a reasonable probability that the result 13 of the PCR proceedings would have been different if counsel had raised the claim. Boggs 14 fails to establish cause for the default of Claim 12(F), and the claim remains defaulted and 15 barred from federal review. 16 Claim 12(G) 17 In this defaulted claim, Boggs alleges that trial counsel performed ineffectively by 18 failing to object to, or request a limiting instruction for, Detective Vogel’s statements in 19 the videotaped interrogations accusing Boggs of lying. (Doc. 15 at 203.) PCR counsel did 20 not perform ineffectively in failing to raise this claim. 21 The Arizona Supreme Court held that Boggs was not prejudiced by Vogel’s 22 statements “because [Boggs] did, in fact, provide multiple stories about his involvement; 23 the jury did not need Vogel’s comments to know that Boggs lied.” Boggs, 218 Ariz. at 335, 24 185 P.3d at 121. Because Boggs suffered no prejudice, trial counsel’s performance was not 25 ineffective under Strickland. 26 There was not a reasonable probability that the result of the PCR proceedings would 27 have been different if counsel had raised this claim. Boggs fails to establish cause for the 28 default of Claim 12(G), and the claim remains defaulted and barred from federal review.

- 57 - 1 Claim 12(H) 2 In this defaulted claim, Boggs alleges that trial counsel provided ineffective 3 assistance by failing to object to admission of victim Alvarado’s statements. (Doc. 15 at 4 206.) PCR counsel did not perform ineffectively in failing to raise this claim. 5 As explained above, Alvarado’s statements were nontestimonial and admissible 6 under Crawford. See Boggs, 218 Ariz. at 337–38, 185 P.3d at 123–24. Trial counsel was 7 not ineffective for failing to raise a futile objection. See James, 24 F.3d at 27. There was 8 not a reasonable probability that the result of the PCR proceedings would have been 9 different if counsel had raised the underlying ineffective assistance of trial counsel claim. 10 Boggs fails to establish cause for the default of Claim 12(H), which remains defaulted and 11 barred from federal review. 2

12 Claim 12(I) 13 In this defaulted claim, Boggs alleges that trial counsel performed ineffectively by 14 failing to pursue a motion to dismiss or remand to the grand jury for a new finding of 15 probable cause on the aggravating factors. (Doc. 15 at 207.) 16 The Arizona Supreme Court rejected the underlying argument on direct appeal. 17 Boggs, 218 P.3d at 344, 185 P.3d at 130 (citing McKaney v. Foreman ex rel. Cty. of 18 Maricopa, 100 P.3d 18, 23 (2004)). Trial counsel were not ineffective for failing to raise a 19 futile objection to the indictment’s lack of aggravating factors. See James, 24 F.3d at 27. 20 PCR counsel was not ineffective for failing to raise such a claim and there was not a 21 reasonable probability that the result of the PCR proceedings would have been different if 22 the claim had been raised. Boggs fails to establish cause for the default of Claim 12(I), and 23 the claim remains defaulted and barred from federal review. 24 Claim 12(J) 25 Boggs alleges that he suffered cumulative prejudice from trial counsel’s errors. 26 (Doc. 15 at 210.) 27 The United States Supreme Court has not specifically recognized the doctrine of 28 cumulative error as an independent basis for habeas relief. The Ninth Circuit has held that

- 58 - 1 in some cases, although no single trial error is sufficiently prejudicial to warrant reversal, 2 the cumulative effect of several errors may nonetheless prejudice a defendant so much that 3 his conviction must be overturned. See Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 4 2002). Here, however, the Court has not identified any constitutional errors. Therefore, 5 “[b]ecause there is no single constitutional error in this case, there is nothing to accumulate 6 to the level of a constitutional violation.” Id. 7 Because Supreme Court precedent does not recognize the doctrine of cumulative 8 error, and because this Court has determined that no prejudice resulted from the errors 9 alleged by Boggs, the allegation of cumulative prejudice is meritless. 10 Trial counsel was not ineffective for failing to raise a claim of cumulative prejudice. 11 PCR counsel was not ineffective for failing to raise a claim of ineffective assistance of trial 12 counsel. There was not a reasonable probability that the result of the PCR proceedings 13 would have been different if the claim had been raised. Boggs fails to establish cause for 14 the default of Claim 12(J), which remains defaulted and barred from federal review. 15 Conclusion 16 With respect to the exhausted aspects of Claim 12, Boggs has not met his double 17 burden under Strickland and the AEDPA. With respect to the defaulted elements of Claim 18 12, Boggs has failed to show cause for the default under Martinez. Claim 12 is denied. 19 Claim 14 20 Boggs alleges that trial counsel performed ineffectively “because they failed to take 21 reasonable steps to prevent the jury findings of aggravating circumstances.” (Doc. 15 at 22 217.) Specifically, Boggs argues that counsel should have objected to the multiple- 23 homicide jury instruction given pursuant to A.R.S. § 13–703(F)(8) as unconstitutionally 24 vague. He also contends that counsel failed to argue that insufficient evidence supported 25 the aggravating circumstance and failed to seek an instruction that the State must prove 26 each element of the circumstances beyond a reasonable doubt. 27 Boggs did not raise these allegations in state court. Their default is not excused 28 under Martinez by the ineffective assistance of PCR counsel.

- 59 - 1 Claim 14(A) 2 Boggs argues that trial counsel were ineffective for failing to object to the court’s 3 jury instruction as unconstitutionally vague because the instruction failed to explain that 4 the jury must find that the murders were motivationally, spatially, and temporally related. 5 (Doc. 15 at 219.) 6 With respect to the multiple-homicides factor, the court instructed the jury: 7 In order to prove the defendant committed the offense at the same time he 8 committed other homicides for which he has been convicted, the State must 9 prove the defendant was convicted of murder in the first degree for an offense that occurred in close proximity to the offense and that occurred within 10 moments of the other offense, or the offenses occurred during a short, 11 uninterrupted time span, and for which the defendant had a similar motivation. 12 13 (RT 5/4/05 at 17–18.) 14 Contrary to Boggs’s argument, this instruction sets out the elements required to 15 prove the multiple-homicides factor. 16 To satisfy the multiple-homicides aggravating circumstance, the murders must have 17 a “‘temporal, spatial, and motivational relationship’ such that they ‘were a part of a 18 continuous course of criminal conduct.’” State v. Ellison, 213 Ariz. 116, 143, 140 P.3d 19 899, 926 128 (2006) (quoting State v. Lavers, 168 Ariz. 376, 393–94, 814 P.2d 333, 350– 20 51 (1991)). 21 The evidence clearly established that the murders had a temporal, spatial, and 22 motivational relationship and were a part of a continuous course of criminal conduct. They 23 were spatially and temporally related because all three victims were murdered at the same 24 time and in the same place. See Boggs, 218 Ariz. at 330, 185 P.3d at 116. In addition, as 25 the Arizona Supreme Court explained in finding that the factor had been proved: 26 all the murders involved a continuous course of criminal conduct. The 27 evidence, including Boggs’ admission from his June 6 interrogation, demonstrates that the victims were killed, at least in part, as a means of 28 witness elimination so that they could not identify the perpetrators. Boggs

- 60 - 1 also stated that the victims were shot in the freezer to lessen the gunshot noise 2 and avoid detection. This evidences that the murders were intended to prevent detection of the perpetrators, as part of a continuous course of 3 criminal conduct. 4 Id. at 342, 185 P.3d at 128. The court also concluded that “the racial motivation applied to 5 all the victims.” Id. 6 In light of this evidence, there is not a reasonable probability that the jury would 7 have failed to find the multiple-homicides aggravating factor had it been differently 8 instructed. See State v. Moore, 222 Ariz. 1, 17, 213 P.3d 150, 166 (2009) (finding defendant 9 was not prejudiced by incomplete instruction where the evidence “demonstrate[d] a 10 temporal, spatial, and motivational relationship substantial enough that no reasonable jury 11 could fail to find the (F)(8) aggravator beyond a reasonable doubt”). 12 Trial counsel were not ineffective for failing to make futile objections to this 13 instruction. See James, 24 F.3d at 27. PCR counsel was not ineffective for failing to raise 14 this claim of ineffective assistance of trial counsel because there was not a reasonable 15 probability that the result of the PCR proceedings would have been different if the claim 16 had been raised. 17 Claim 14(B) 18 Boggs argues that trial counsel were ineffective for failing to argue that the multiple- 19 homicides aggravating factor was unconstitutionally vague on its face, failing to argue that 20 “no record evidence supported a clear motivation,” and failing to request an instruction that 21 each element of an aggravating factor must be proven beyond a reasonable doubt. (Doc. 15 22 at 222–24.) 23 Counsel were not ineffective for failing to mount a facial challenge to § 13– 24 751(F)(8) as unconstitutionally vague. The statute provides that the aggravating factor 25 exists if “[t]he defendant has been convicted of one or more other homicides . . . that were 26 committed during the commission of the offense.” A.R.S. § 13–703(F)(8). Although the 27 Arizona Supreme Court has held that the statute is vague on its face, any vagueness is cured 28 where the jury is instructed that the State must prove that the murders took place during a

- 61 - 1 “continuous course of criminal conduct” and were “temporally, spatially, and 2 motivationally related.” State v. Dann, 220 Ariz. 351, 364, 207 P.3d 604, 617 (2009). 3 As noted, the trial court instructed the jury that the murders must have occurred “in 4 close proximity,” “within moments” of one another or “during a short, uninterrupted time 5 span,” and “for which the defendant had a similar motivation.” (RT 5/4/05 at 17–18.) The 6 instruction therefore cured the statute’s vagueness. The factor was also supported by the 7 evidence, as affirmed by the Arizona Supreme Court. Boggs, 218 Ariz. at 342, 185 P.3d at 8 128; see Moore, 222 Ariz. at 17, 213 P.3d at 166. 9 Counsel did not perform ineffectively by failing to request a directed verdict or 10 argue to the jury that the (F)(8) aggravator was not supported by sufficient evidence of a 11 motivational relationship between the murders. First, trial counsel did argue to the jury that 12 the murders were not motivationally related, asserting that only Hargrave, not Boggs, had 13 a motive to eliminate witnesses. (RT 5/4/05 at 33–34.) Counsel also argued against a racial 14 motive by challenging the authenticity of the letter allegedly written by Boggs. (Id. at 34.) 15 Moreover, as already stated, Boggs suffered no prejudice because no reasonable juror could 16 have failed to find that all three murders were motivationally connected. Boggs, 218 Ariz. 17 at 342, 185 P.3d at 128. The Arizona Supreme Court’s conclusion that the State proved a 18 motivational relationship beyond a reasonable doubt precludes any finding of prejudice. 19 Finally, counsel were not ineffective for failing to request that the jurors be 20 instructed that the State must prove each element of an aggravating circumstance beyond 21 a reasonable doubt. 22 In the aggravation stage of trial, the court instructed the jurors that: 23 the State must prove beyond a reasonable doubt that one or more of the 24 alleged aggravating factors exist. The burden of proof is on the State on each finding. Each finding must be proved beyond a reasonable doubt. 25 26 The general instructions you have already received apply to these findings. 27 (RT 5/4/05 at 14–15.)10 28 10 The court had previously instructed the jurors before their guilt-phase

- 62 - 1 The court then instructed the jurors on the required findings for the three alleged 2 aggravating factors. (Id. at 16–18.) 3 These instructions adequately explained that each element of an aggravating factor 4 must be proven beyond a reasonable doubt for that factor to be found. The trial court’s use 5 of the term “each finding” of the aggravating factor was sufficiently clear, especially 6 considering that the court referred the jurors back to the guilt phase instructions, which 7 explicitly stated that each element of a charge must be proven beyond a reasonable doubt. 8 Counsel therefore did not perform deficiently by failing to request an additional instruction. 9 Moreover, Boggs cannot demonstrate prejudice because the Arizona Supreme Court 10 found that the multiple-homicides aggravating factor was established beyond a reasonable 11 doubt. See Boggs, 218 Ariz. at 340–42, 185 P.3d at 126–28.

12 Trial counsel were not ineffective for failing to make these challenges to the (F)(8)

13 factor. PCR counsel’s failure to raise this claim of ineffective assistance of trial counsel

14 was not ineffective because there was not a reasonable probability that the result of the

15 PCR proceedings would have been different if the claim had been raised.

16 Conclusion Because PCR counsel did not perform ineffectively, Boggs fails to establish cause 17 for the default of Claim 14 under Martinez. The claim is denied as procedurally barred. 18 Claim 16 19 Boggs alleges that trial counsel performed ineffectively at sentencing, principally in 20 their presentation of mitigating evidence. (Doc. 15 at 239.) Claim 16 consists of nine 21 subclaims, most of which were never presented in state court. 22 Boggs argues that the ineffective assistance of PCR counsel excuses the default of 23 the claims he failed to present in state court. The Court finds that Martinez does not excuse 24 the default. In doing so, the Court again evaluates the strength of the underlying claim of 25 ineffective assistance of trial counsel. The Court is not faced with an “undeveloped record,” 26 which the Ninth Circuit cautioned against in Ramirez. Ramirez, 937 F.3d at 1242; see Apelt 27 28 deliberations that “the State must prove each element of each charge beyond a reasonable doubt.” (RT 5/2/05 at 101.)

- 63 - 1 v. Ryan, 878 F.3d 800, 824 (9th Cir. 2017). Rather, as discussed below, the record has been 2 expanded to include the materials Boggs offered in support of these claims. It is based on 3 this “properly developed record,” Ramirez, 927 F.3d at 1242 n.7, that the Court assesses 4 the merits of the underlying ineffective assistance of trial counsel claims. 5 In addition to finding that the default is not excused, the Court independently finds 6 that the underlying claims are without merit. See id. (warning courts not to collapse two- 7 Martinez analysis); cf. Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (explaining that “if 8 the record refutes the applicant’s factual allegations or otherwise precludes habeas relief, a 9 district court is not required to hold an evidentiary hearing”). 10 Additional facts 11 Counsel presented three witnesses to testify on Boggs’s behalf in the mitigation

12 phase of sentencing. The first was his aunt, Rose Nelson. She testified that her sister, Karen,

13 Boggs’s mother, was mentally retarded. (RT 5/10/05 at 10.) She also testified that Boggs

14 had little contact with his father after age five. (Id. at 20.)

15 Boggs was the oldest of three children. His sister died of an epileptic seizure; a few

16 months later his brother, Robert, committed suicide at age 12 by hanging himself from a bunk bed in his room. (Id. at 16–17.) 17 Boggs was born with a cleft palate, requiring surgeries and prolonged 18 hospitalization. (Id. at 18.) He was fed through a tube and was unable to gain weight. (Id. 19 at 19.) He also suffered from ear infections, which required the insertion of tubes in both 20 ears. (Id. at 21.) 21 Boggs had emotional problems. He was hyperactive and suffered from ADHD. (Id. 22 at 22.) He had difficulty in school and was unable to focus. (Id.) He engaged in destructive 23 behavior and ran away from home and school. (Id. at 25.) 24 Because of her disability, Boggs’s mother did not know how to parent and was “very 25 hard on him.” (Id. at 23.) She practiced “extreme discipline,” forcing Boggs to sit in the 26 corner for hours with his face to the wall. (Id. at 23.) She blamed and punished him for 27 everything that went wrong. (Id.) He was not allowed to go outside to ride a bike or play 28 with his friends. (Id. at 22.)

- 64 - 1 During this period, from ages five to ten, Boggs received therapy and medication 2 for his hyperactivity and ADHD; he was prescribed Ritalin, which “helped some.” (Id. at 3 24–25.) His mother had difficulty following through with Boggs’s counseling. (Id. at 25.) 4 He was hospitalized at times for his behavioral problems. (Id. at 26–27.) Although he 5 engaged in destructive behaviors, he never tried to hurt anyone. (Id. at 25.) 6 From ages 10 to 15, Boggs spent half his time in group homes. (Id. at 28.) He was 7 also hospitalized numerous times for his behavioral issues. (Id. at 27.) He received 8 counseling but again his mother was unable to provide proper discipline and guidance. (Id. 9 at 30.) At around age 13 he told a counselor he was hearing voices. (Id. at 28.) He continued 10 to experience problems in school. (Id. at 30.) 11 Boggs’s mother died in 1996, and his siblings two years later. (Id. at 31.) He was 12 very close to his brother and blamed himself for Robert’s suicide because Robert had asked 13 Boggs to spend time with him and Boggs had put him off. (Id.) 14 Boggs’s maternal grandparents, with whom he was close, died in 1999. (Id.) At age 15 16 or 17, Boggs began to live with his paternal grandfather. (Id. at 33.) Boggs spoke of 16 suicide during this period but never threatened anyone else. (Id. at 34.) 17 On cross-examination, Rose described the household in which Boggs grew up as 18 “normal” with a “happy family” who took “a lot of outings together, vacations together.” 19 (Id. at 38.) She testified, “we had a good family. We had a good life.” (Id.) Boggs, until the 20 age of five or six, was a happy, well-adjusted child. (Id. at 39.) Karen took Boggs to doctors 21 for his behavior issues and made sure he took his prescribed medication. (Id. at 39–40.) 22 Rose testified that from an early age, Boggs had a problem with authority because 23 he “wanted to control what he was going to do” and “didn’t want to be told what to do.” 24 (Id. at 41–42, 44.) When Boggs’s behavior got worse as he got older, his mother continued 25 to seek counseling and professional help for him. (Id. at 42.) Rose testified that Boggs did 26 better when he was placed in group homes and institutions due to the structure he received 27 there. (Id. at 44–45.) 28 ///

- 65 - 1 Rose denied that Karen had ever shackled or tied Boggs to his bed. (Id. at 43–44.) 2 She did not see Karen beat any of her children. (Id. at 46.) Rose was not aware of any 3 mental illness in her family (Id. at 45.) 4 Next, Dr. Ester Ruiz, a psychiatrist, testified on Boggs’s behalf. Dr. Ruiz had 5 prepared a “trauma assessment report.” She diagnosed Boggs with post-traumatic stress 6 disorder (“PTSD”) and bipolar disorder. (Id. at 78, 81–82.) She explained that Boggs had 7 “a long history of trauma over many developmental stages,” beginning with his birth. (Id. 8 at 57.) Boggs was a premature infant. (Id.) He was born with a syndrome that left him 9 “deformed,” with facial abnormalities and “a small head that required many, many 10 surgeries.” (Id.) He had a severe cleft palate and “suffered from failure-to-thrive,” again 11 leading to many hospitalizations. (Id.) He was sexually abused at ages 10 and 14. (Id.) He

12 was neglected and physically abused by his mother. (Id.)

13 Boggs experienced seizures and hyperactivity. (Id. at 58.) He had periods of 14 disassociation related to his past trauma, experienced auditory hallucinations, and was 15 suicidal at one point. (Id. at 59–60.) Dr. Ruiz also testified that Boggs “became rather 16 delusional” when speaking about his militia involvement. (Id. at 60.) 17 On cross-examination, Dr. Ruiz testified that Boggs felt rejected rather than loved 18 by his mother. (Id. at 65–66.) She also testified that Boggs’s grandmother told her that 19 Karen had chained Boggs to the bed. (Id. at 66.) Boggs also reported that his mother once 20 beat him with an extension cord when he was late coming home. (Id. at 67–68, 70.) 21 Finally, Dr. Richard Lanyon, a forensic psychologist, testified that Boggs suffered 22 from long-term bipolar, or manic-depressive, disorder, which manifests in a person having 23 “periods where their behavior is essentially out of control” and other periods “where they 24 are extremely depressed.” (Id. at 117.) Bipolar disorder has a significant genetic 25 component, and records indicated that at least two of Boggs’s relatives likely suffered from 26 the disorder. (Id. at 117–18.) 27 Dr. Lanyon also found that Boggs displayed a number of symptoms consistent with 28 schizophrenia, including delusions and hallucinations. (Id. at 123.) He noted that Boggs

- 66 - 1 had a history of depressive periods and suicide threats or attempts, dating from the age of 2 10. (Id. at 124, 128.) Other symptoms of Boggs’s disorders included periods of hearing 3 voices and Boggs’s delusions and grandiosity with respect to his militia involvement. (Id. 4 at 124–25.) 5 Dr. Lanyon proceeded to discussed delusions in the context of Boggs’s participation in the militia. (Id.) He defined delusions as “fixed beliefs held with convictions that are 6 basically false.” (Id.) Dr. Lanyon characterized the militia as a delusion: 7 8 And as the delusion is built, in his mind he had a large militia of people that 9 he controlled. He had designed fancy uniforms for them, and particular ranks. Each rank there would have specific responsibilities. 10 ... 11 Sometimes he was able to see that he only had a couple people in this, one 12 of his buddies. And they started humoring him. But other times he believed 13 it was a mark, a very important organization, and it had a very important mission, and he needed to raise money to support it. 14 15 (Id. at 125–26.) Dr. Lanyon explained that although militias existed, “the difference 16 between a kid with a couple of friends, [and] what he is describing he had, is so great that 17 I consider that to be delusional.” (Id. at 163.) 18 Dr. Lanyon testified that Boggs was suffering from bipolar disorder at the time of 19 the crimes. (Id. at 131.) He explained, “That doesn’t necessarily mean that his behavior on 20 that day was driven by it. That means that his life up to that point . . . was heavily colored 21 by it.” (Id.) Dr. Lanyon testified that Boggs’s bi-polar disorder “significantly dictated his 22 motives, his needs and the thought distortions underlying why he did what he did.” (Id. at 23 171.) Dr. Lanyon “raised the question if [Boggs] had not had [bi-polar] disorder, whether 24 he would have been there in the first place.” (Id. at 175.) 25 In addition to their testimony, counsel submitted the reports of Drs. Ruiz and 26 Lanyon as exhibits for the jury to review. The reports contain extensive information about 27 Boggs’s social history, behavioral issues, and mental health diagnoses. 28 Dr. Lanyon’s report documented the “voluminous” mental health, hospital,

- 67 - 1 educational, and court records he reviewed, and detailed Boggs’s various prior mental 2 health evaluations. (ROA 327, Lanyon Report, at 1–14.) The report described records from 3 Boggs’s inpatient psychiatric treatments beginning at the age of 10 and continuing through 4 his hospitalization for seizures at age 23. (Id. at 2–14.) 5 Dr. Lanyon discussed Boggs’s birth with Pierre Robin Syndrome and the resulting 6 surgeries. He noted the “chaotic household” in which Boggs was raised. Boggs’s mother 7 had a history of suicide attempts and his father had a record of drug dealing, suffered from 8 bi-polar disorder, abused Boggs’s mother, and served time in prison for molesting Boggs’s 9 sister. (Id. at 19.) When Boggs was 16, he and his siblings were placed in the custody of 10 their grandfather, with Karen having “no responsibility for the children.” (Id. at 10.) 11 Dr. Lanyon noted that Boggs was hospitalized at age 10 for attempting suicide and 12 threatening to kill his mother, and that he showed symptoms of psychotic disorder. (Id. at 13 20.) From age 10 “though his adolescence, Mr. Boggs spent most of his time in hospitals, 14 residential treatment centers, formal mental health day program care, and juvenile 15 incarceration.” (Id.) By age 13, professionals recognized that Boggs’s problems were 16 “basically psychiatric in nature.” (Id.) Records showed that several family members had 17 mental illness, including grandparents and siblings, and the illnesses—schizophrenia and 18 bipolar disorder—had a genetic component. (Id.) 19 At age 16, Boggs exhibited “further symptoms of serious mental disorder with 20 paranoid and dangerous implications.” (Id.) He was expelled from school for an incident 21 involving a gun, stalked an assistant principal, claimed to be the “emperor” of a 20–30 22 member militia, wrote documents threatening to bomb a court building and a treatment 23 center, signed one of the threats “Emperor Steve,” dressed like a “storm trooper” and was 24 supportive of the “Nazi movement,” attempted suicide, and “reported hearing voices on a 25 continuous basis.” (Id. at 20–21.) 26 Boggs told Dr. Lanyon that he believed his mother molested him at a very young 27 age, that he was molested at age 11 in a group home, that at age 12 he was adjudicated for 28

- 68 - 1 having molested his brother and sister, and that he was raped by a police officer at age 15. 2 (Id. at 17.) 3 Dr. Lanyon also reported that the deaths of Boggs’s mother, sister, and brother caused him to become “extremely depressed.” (Id. at 21.) 4 Dr. Ruiz’s report also detailed the difficulties caused by Boggs’s birth with Pierre 5 Robin Syndrome. (ROA 327, Ruiz Report at 2.) She reported that Boggs’s mother could 6 not deal with his impulsive and hyperactive behaviors. Karen’s parenting was abusive. She 7 would “discipline [Boggs] rather severely by beating him with a belt, paddle, or extension 8 cord,” place him “in a corner all day” without bathroom breaks, ground him for weeks at a 9 time, and once “chained” him to a bed. (Id.) 10 Dr. Ruiz noted that at the age of 10, when Boggs attempted suicide, he already had 11 a history of setting fires in people’s homes, stealing, running away, telling unbelievable 12 stories, behavioral problems in school, temper tantrums, and threats of violence against his 13 mother. (Id.) He spent many years in therapy, was diagnosed with “multiple psychiatric 14 disorders,” and was treated with a variety of medications. (Id.) 15 Dr. Ruiz also wrote that Boggs felt “rejected” by his mother and had a “nonexistent” 16 relationship with his father. (Id. at 3.) His mother accused his father of molesting his sister, 17 but Boggs believed that to be a fabrication. (Id.) Boggs felt guilty about his brother’s 18 suicide. (Id.) Dr. Ruiz also documented that Boggs reported being sexually abused at a 19 group home at age 10 by a 13-year-old resident and sodomized by a police officer at age 20 14. (Id.) 21 Dr. Eugene Almer, a psychiatrist, evaluated Boggs and testified for the State in 22 rebuttal. (RT 5/11/05.) Dr. Almer diagnosed Boggs with depressive disorder NOS, 23 currently in remission, and borderline, narcissistic, and antisocial personality types. (ROA 24 327, Almer Report at 12.) He did not find evidence of fetal alcohol syndrome, brain 25 damage, schizophrenia, thinking disorder, or bipolar disorder. (Id. at 14.) 26 During the PCR proceedings, Boggs was evaluated by Dr. Cynthia Boyd, a forensic 27 neuropsychologist. She reported that there were suggestions in the record that Boggs was 28 subjected to toxins in utero; his mother drank “rusty water” and “was known to heavily use

- 69 - 1 alcohol,” suggesting the possibility that Boggs suffered from FAS and/or lead poisoning. 2 (Doc. 52-1, Ex. 59 at 2, 13.) Dr. Boyd also determined that Boggs’s “cognitive abilities 3 appeared grossly intact and without evidence of brain dysfunction”; “he is not suffering 4 from a major mental disorder” such as schizophrenia or bipolar disorder; and there was “no 5 neurological impairment.” (Id. at 11–13.) 6 Claim 16(A) 7 Boggs alleges that trial counsel performed ineffectively by failing to investigate, 8 develop, and present “a wealth of powerful mitigating evidence.” (Doc. 15 at 242.) This 9 claim consists of three subparts. In Claim (16)(A)(1), Boggs alleges that counsel failed to 10 present evidence of “Boggs’ upbringing amid a multigenerational history of mental illness, 11 dysfunction, and violence.” (Id. at 243.) Claim 16(A)(1) is exhausted in part. In Claim

12 16(A)(2), Boggs alleges that counsel failed to present evidence of Boggs’s “family history

13 of instability and neglect” and his “serious physical, mental, emotional, and sexual abuse.”

14 (Id. at 246.) This claim is unexhausted. In Claim 16(A)(3), Boggs alleges that counsel

15 failed to present evidence of Boggs’s mental and cognitive impairments and delusions. (Id.

16 at 254.) This claim is also unexhausted. With respect to the allegations in Claim 16(A), Boggs asserts that the testimony of 17 Rose Nelson presented an “incomplete and misleading” picture of Boggs’s history. (Doc. 18 15 at 248Nevertheless, counsel did present the evidence Boggs alleges was omitted in the 19 testimony and reports of Drs. Lanyon and Ruiz. (See Doc. 21 at 193–94.) 20 a. Claim 16(A)(1) 21 The aspect of this claim in which Boggs argues that trial counsel performed 22 ineffectively by failing to obtain police reports regarding the deaths of his siblings was 23 adjudicated on the merits in state court. The PCR court denied the claim, finding neither 24 deficient performance nor prejudice: 25 26 Petitioner has neither attached a copy of the police reports nor indicated what relevance they might have, beyond cumulatively confirming that each death 27 occurred. Further, the deaths occurred four years before the murders and— 28 although grief is ongoing—appear unrelated to either a racial- or pecuniary- motive murder.

- 70 - 1 (Doc. 21, Ex. K, ROA-PCR Item 64 at 6.) 2 This decision was neither contrary to nor an unreasonable application of clearly 3 established federal law, nor was it based on an unreasonable determination of the facts. 4 During the mitigation phase of trial, Rose Nelson testified about the deaths and their 5 impact on Boggs. (RT 5/10/05 at 16–17.) The reports of Drs. Lanyon and Ruiz also 6 mentioned the deaths of Boggs’s siblings. Dr. Lanyon reported that Boggs felt 7 “considerable guilt” about his brother’s suicide and was “extremely depressed” over the 8 deaths of both siblings, believing he could have prevented them. (ROA 327, Lanyon 9 Report, at 15, 21.) Dr. Ruiz also reported that Boggs felt guilt over his brother’s suicide. 10 (Id., Ruiz Report, at 3.) In light of this evidence, the state court reasonably concluded that 11 trial counsel did not perform deficiently and Boggs was not prejudiced by counsel’s failure 12 to present the information in the police reports. 13 The remaining, unexhausted component of Claim 16(A)(1) alleges that counsel 14 failed to present evidence of “Boggs’ upbringing amid a multigenerational history of 15 mental illness, dysfunction, and violence.” (Doc. 15 at 243.) Boggs asserts that “serious 16 red flags should have led counsel to investigate, develop, and present this evidence.” (Id. 17 at 243–44.) The evidence Boggs refers to, however (id. at 243–44), is precisely the 18 evidence that counsel presented in mitigation through the testimony of the witnesses and 19 the experts’ reports. This evidence includes the fact that Boggs was born with Pierre Robin 20 syndrome; he suffered physical and emotional abuse by his mother; he was subject to out- 21 of-home placements and juvenile adjudications; his homelife was chaotic and his mother 22 was poorly equipped to raise him; he attempted suicide and was hospitalized; he was 23 affected by deaths in the family; and his family had a history of mental illness. 24 Counsel presented the very evidence on which this allegation of ineffective 25 assistance is premised. Boggs cannot show that counsel performed deficiently or that he 26 was prejudiced by the omission of such evidence. See Greenway v. Schriro, 653 F.3d 790, 27 804 (9th Cir. 2011) (finding petitioner not entitled to relief on ineffective assistance of 28

- 71 - 1 counsel claim where he has not “alleged, much less demonstrated, what more counsel 2 should have known or discovered”). 3 b. Claim 16(A)(2) 4 Boggs alleges that counsel performed ineffectively by failing to present evidence of 5 his “family history of instability and neglect, and the serious physical, mental, emotional, 6 and sexual abuse he endured.” (Doc. 15 at 246.) He contends that “the real story of Boggs’s 7 history shows that the picture painted by Rose was incomplete and misleading.” (Id. at 8 248.) According to Boggs, counsel failed to “present even a shadow of the story of his 9 childhood, in which Boggs bounced around from unstable home, to runaway, to mental or 10 juvenile institution—subject to sexual, physical, and emotional abuse.” (Id. at 254.) 11 Boggs focuses on inconsistencies between the testimony of Rose Nelson and records 12 demonstrating the abuse, neglect, and mental illness “that characterized Boggs’s 13 childhood.” (Doc. 15 at 253.) Again, however, the information Boggs cites for the “real 14 story of Boggs’s history” (id. at 248) is contained in the testimony and reports of Drs. 15 Lanyon and Ruiz (id. at 248–53). 16 Boggs cites Dr. Lanyon’s report for evidence about Boggs’s chaotic homelife, 17 including information that Boggs’s mother was an alcoholic who spent much of her time 18 on the streets or in the park near the family home and was slow in her thinking. (ROA 327, 19 Lanyon Report at 8, 19; see ROA 327, Ruiz Report at 5.) He cites Dr. Lanyon’s report for 20 information that Boggs’s mother attempted suicide while she was pregnant with Boggs. 21 (ROA 327, Lanyon Report at 3.) He relies on Dr. Lanyon’s report for evidence that the 22 Boggs family was dysfunctional, that they kept family secrets and chose to ignore the abuse 23 going on in their home. (Id. at 8.) He cites the report for evidence that Boggs’s father was 24 arrested and charged with sexually abusing his daughter. (Id. at 2.) 25 Dr. Lanyon’s report contained a comprehensive history of Boggs’s behavioral 26 problems, mental health diagnoses, and out-of-home placements. (Id. at 1–14.) Dr. Lanyon 27 noted that Boggs, throughout his adolescence, spent most of his time institutionalized in 28 hospitals, treatment centers, mental health day programs, and juvenile incarceration. (Id. at

- 72 - 1 20.) 2 The experts’ reports also detailed the “physical, mental, emotional, and sexual 3 abuse” Boggs suffered. Dr. Ruiz reported that Boggs’s mother used harsh disciplinary 4 methods, including beating him, forcing him to sit in a corner all day, and chaining him to 5 the bed. (ROA 327, Ruiz Report at 2.) She also noted that Boggs felt “rejected” by his 6 mother and had no relationship with his father. (Id. at 3.) Both Dr. Lanyon and Dr. Ruiz 7 related Boggs’s allegations that he was sexually abused as a child. (Id.; ROA 327, Lanyon 8 Report at 17.) 9 Dr. Lanyon’s report detailed Boggs’s behavioral problems and his history of 10 delusional and grandiose thoughts. (ROA 327, Lanyon Report at 19–21.) Dr. Lanyon noted 11 that Boggs was expelled from school for an incident involving a gun, stalked an assistant 12 principal, wrote threatening letters, claimed to be the “emperor” of a militia, and dressed 13 like a Star Wars “storm trooper.” (Id. at 21.) Although this information was not conveyed 14 through the testimony of Rose Nelson (see Doc. 15 at 252), it was before the jury. 15 In fact, as Respondents note, Boggs offers only two citations to information 16 regarding his childhood that was not contained in the evidence presented to the jury. He 17 refers to Child Protective Services (CPS) reports stating that his sister Diane had 18 intellectual disabilities for which she was treated in special education programs and CPS 19 “reports against Karen and Boggs’s grandfather, Bob Baumgartner, regarding Boggs and 20 his siblings.” (Doc. 15 at 249, 250.) This information is of little mitigating value compared 21 to the information that was provided to the jury. To the extent the CPS reports regarding 22 Boggs’s mother may have revealed abuse or neglect, counsel presented such information 23 through Rose Nelson and Drs. Lanyon and Ruiz. (See, e.g., R.T. 5/10/05 at 22–23, 25, 29, 24 46, 56–57; ROA Item 327, Lanyon Report at 10, Ruiz Report at 2–3.) 25 Boggs faults counsel for relying on a single lay witness and not calling “any former 26 teachers, neighbors, friends, employees from the various treatment and juvenile centers, or 27 numerous other individuals that could have offered insight into Boggs’s life.” (Doc. 15 at 28 246–47.) He does not identify what mitigating information these unnamed witnesses would

- 73 - 1 have revealed beyond what counsel presented at sentencing. See Greenway, 653 F.3d at 2 804. 3 c. Claim 16(A)(3) 4 Boggs alleges that counsel failed to investigate, develop, or present evidence about 5 the sources, effects, and manifestations of his serious mental and cognitive impairments” 6 and to “investigate the delusions that permeated Boggs’s history, as well as the crime, that 7 were a direct result of his serious mental illnesses.” (Doc. 15 at 254.) 8 Boggs lists six circumstances showing the “mental and cognitive impairments and 9 delusions that were part of his history and present at the time of the crime” and alleges that 10 trial counsel did not investigate them or gather supporting records. (Doc. 15 at 254–55.) In 11 support of these circumstances, however, he cites Dr. Lanyon’s report, which was provided 12 to the jury. (Id.) Dr. Lanyon also testified about Boggs’s delusional beliefs. (RT 5/10/05 at 13 125–26, 161–62.) 14 Boggs identifies no additional evidence that counsel should have presented. See 15 Greenway, 753 F.3d at 804. Counsel did not perform ineffectively with respect to this 16 evidence. 17 d. Conclusion 18 With respect to the exhausted portion of Claim 16(A)(1), the claim is denied on the 19 merits. With respect to the procedurally defaulted aspects of Claim 16(A)(1), and Claims 20 16(A)(2) and (3), the Court finds that PCR counsel did not perform ineffectively in failing 21 to raise the claims and there was not a reasonable probability, based on the weakness of 22 the underlying ineffective assistance of counsel claims, that the result of the PCR 23 proceedings would have been different if counsel had raised them. See Ramirez, 937 F.3d 24 at 1241; Clabourne, 745 F.3d at 377. Those portions of Claim 16(A) therefore remain 25 defaulted and barred from federal review. Even if the default were excused, the claims are 26 meritless under Strickland. Claim 16(A) is denied. 27 /// 28 ///

- 74 - 1 Claim 16(B) 2 Boggs alleges that trial counsel performed ineffectively by failing to subpoena 3 certain witnesses and failing to adequately prepare others in the mitigation phase of trial. 4 (Doc. 15 at 258.) 5 This claim fails because Boggs does not identify what witnesses should have been 6 called and what their testimony would have been. See United States v. Murray, 751 F.2d 7 1528, 1535 (9th Cir. 1985) (finding no ineffective assistance based on the failure to call 8 witnesses when the defendant failed to identify any witness his counsel should have called 9 who would have been helpful); see also Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir.), 10 amended by 253 F.3d 1150 (9th Cir. 2001) (explaining that petitioner’s mere speculation 11 that a witness might have given helpful information is not enough to establish ineffective 12 assistance); Dows v. Woods, 211 F.3d 480, 486 (9th Cir. 2000) (“Dows provides no 13 evidence that this witness would have provided helpful testimony for the defense . . . .”). 14 Boggs contends that counsel inadequately prepared their experts. According to 15 Boggs, counsel did not interview “numerous people in Boggs’s life, including caregivers, 16 friends, and teachers,” failed to “elicit information about cognitive deficits or other serious 17 neurological issues,” failed to conduct “adaptive-behavior interviews,” and failed to 18 conduct a “multi-generational investigation.” (Doc. 15 at 271–72.) He also asserts that 19 counsel “failed to follow up on the leads provided by prior counsel and the records prior 20 counsel gathered in the case.” (Id. at 272.) These conclusory allegations fail to establish 21 ineffective assistance of counsel. Boggs does not identify anyone counsel should have 22 spoken to or specify what facts counsel should have discovered and presented. Boggs 23 similarly fails to identify which leads and records counsel failed to pursue. 24 Boggs also alleges that his experts, Drs. Lanyon and Ruiz, “were not adequately 25 prepared to testify about the Imperial Royal Guard because they lacked factual support to 26 bolster their beliefs that the militia talk seemed delusional.” (Doc. 15 at 272.) This claim 27 is meritless because the facts about the militia were before the jury. Boggs’s beliefs about 28 the militia could be characterized as delusional or grandiose as they were by Drs. Lanyon

- 75 - 1 and Ruiz. Yet, the Petitioner was part of a small group that was armed and that committed 2 the murders. Petitioner fails to explain how additional preparation of the experts would 3 have changed that evidence. 4 PCR counsel was not ineffective for failing to raise this claim. There was not a 5 reasonable probability that the result of the PCR proceedings would have been different if 6 the claim had been raised. Claim 16(B) therefore remains defaulted and barred from federal 7 review. Even if the default were excused, the claim is meritless under Strickland. 8 Claim 16(B) is denied. 9 Claim 16(C) 10 Boggs alleges that trial counsel performed ineffectively by failing to investigate 11 whether Boggs suffers from Fetal Alcohol Spectrum Disorder (FASD).11 (Doc. 15 at 274.) 12 According to Boggs, trial counsel “complete[ly] fail[ed] to pursue evidence of Boggs’s 13 exposure to drugs and alcohol in utero and to seek expert advice on the intellectual, 14 neurological, and neuropsychological effects of that exposure on Boggs.” (Id. at 278.) 15 Boggs asserts he has characteristics of FASD that trial counsel should have been aware of, 16 including ADHD, learning disabilities, speech and language disorders, oppositional- 17 defiant disorders, and self-injurious disorders. (Id.) 18 The record showed that Boggs’s mother had a drinking problem and died of liver 19 cancer. (ROA 327, Almer Report at 4; ROA 327 at Ruiz Report at 2.) Defense expert Dr. 20 Mark Walter performed a neuropsychological examination of Boggs in April 2004, prior 21 to trial. (Doc. 25-4, Ex. EE.) He evaluated Boggs’s “neurocognitive functioning in the light 22 of a history of a seizure disorder, probable ADHD, possible Fetal Alcohol Syndrome (FAS) 23 versus Fetal Alcohol Effect (FAE), among other neuropsychiatric disorders.” (Id. at 1.) Dr. 24 Walter noted impairment in Boggs’s adaptive executive functioning that was “consistent 25 with his history of attention deficit and indicates the presence of brain damage, 26 specifically in frontal lobe functioning.” (Id. at 9.) He opined that these symptoms could 27 28 11 Boggs has withdrawn his allegation that counsel performed ineffectively by failing to investigate whether Boggs was intellectually disabled. (Doc. 26 at 109.)

- 76 - 1 be caused by uncontrolled seizures; they “could also stem from an FAE (Fetal Alcohol 2 Effect) rather than full FAS.” (Id.) 3 As noted above, during the PCR proceedings Dr. Boyd evaluated Boggs and 4 suggested that he may have suffered from FAS. (Doc. 52-1, Ex. 59 at 2, 13.) 5 The Court previously expanded the record to include the evidence Boggs offered in 6 support of this claim. (See Doc. 67.) The new evidence includes a 2017 report by Dr. 7 Julian Davies, who concludes that Boggs suffers from “Neurobehavioral 8 Disorder/Alcohol Exposed, a Fetal Alcohol Spectrum Disorder.” (Doc. 51-9, Ex. 54 at 31.) 9 This condition is characterized by moderate dysfunction due to congenital brain damage 10 associated with prenatal alcohol exposure. (Id. at 32.) Dr. Davies acknowledges that 11 “[d]ocumentation around [Boggs’s] prenatal alcohol exposure history is somewhat 12 inconsistent” but opines that “the third trimester exposure to ethanol (drips for preterm 13 labor) is non-controversial, and that earlier drinking during pregnancy is very likely.” (Id. 14 at 25–26.) 15 The expanded record also includes Dr. Kenneth Benedict’s 2017 report, which states 16 “[t]here is evidence that [Boggs] was exposed in utero to alcohol, and he may quite likely 17 suffer from a Fetal Alcohol Spectrum Disorder.” (Doc. 51-9, Ex. 53 at 23.) 18 In a 2016 declaration, Dr. George DeLong, a psychologist who had examined Boggs 19 prior to trial in 2002, criticizes Dr. Almer’s conclusion that Boggs did not suffer from FAS. 20 (Doc. 52, Ex. 55 at 3–8.) Dr. Lanyon provided an affidavit in 2016 citing “newly available 21 information” reporting that when Boggs was born the doctor informed Boggs’s father that 22 Boggs had fetal alcohol syndrome. (Doc. 52-1, Ex. 56 at 5.) Dr. Peter Simi, a sociologist 23 and criminologist, writes in the background section of his 2017 report that Boggs’s mother 24 was an alcoholic who “reportedly consumed large quantities of alcohol throughout her 25 pregnancy and there is some indication from discovery documents that [Boggs] may have 26 suffered from fetal alcohol syndrome.” (Id., Ex. 57 at 5.) 27 The expanded record also includes lay declarations from family members who recount alcohol consumption by Boggs’s mother. Steve Boggs Sr. states that his wife was 28

- 77 - 1 an alcoholic and drank when she was pregnant with Boggs and that when Boggs was born 2 the doctor told him that Boggs had FAS. (Doc. 52-7, Ex. 79 at 3.) Rose Nelson, Karen 3 Boggs’s sister, states that Karen drank “socially” when she was pregnant with Boggs. (Id., 4 Ex. 80 at 3.) 5 Despite this new information, the Court finds that trial counsel did not perform 6 ineffectively with respect to the issue of FASD or related conditions. With the exception 7 of Dr. Walter, none of the experts who evaluated Boggs prior to trial opined that he suffered 8 from fetal alcohol syndrome, including the experts whom counsel chose to testify on 9 Boggs’s behalf at sentencing, Drs. Lanyon and Ruiz. The failure of Boggs’s experts to 10 diagnose him with fetal alcohol syndrome “does not constitute ineffective assistance of 11 counsel, and [a petitioner] has no constitutional guarantee of effective assistance of

12 experts.” Earp v. Cullen, 623 F.3d 1065, 1077 (9th Cir. 2010).

13 More importantly, it is “strongly presumed” that counsel “made all significant

14 decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690;

15 Allen v. Woodford, 395 F.3d 979, 998 (9th Cir. 2005). Boggs has not overcome the

16 presumption that trial counsel made a reasonable strategic decision to present the opinions of Drs. Lanyon and Ruiz, who diagnosed Boggs with PTSD and bipolar disorder, rather 17 than Dr. Walter’s opinion that Boggs might have had FAE. Counsel are entitled to this 18 presumption because, contrary to Boggs’s assertion, their investigation encompassed the 19 question of whether Boggs suffered from the effects of in utero exposure to alcohol. 20 As the Supreme Court explained in Strickland, “strategic choices made after 21 thorough investigation of law and facts relevant to plausible options are virtually 22 unchallengeable.” Strickland, 466 U.S. at 690–91. “Because of the difficulties inherent in 23 fairly evaluating counsel’s performance, courts must ‘indulge a strong presumption that 24 counsel’s conduct falls within the wide range of reasonable professional 25 assistance.’” Gulbrandson v. Ryan, 738 F.3d 976, 988 (9th Cir. 2013) (quoting 26 Strickland, 466 U.S. at 689). “This presumption of reasonableness means that not only do 27 we ‘give the attorneys the benefit of the doubt,’ we must also ‘affirmatively entertain the 28 range of possible reasons [defense] counsel may have had for proceeding as they did.’” Id.

- 78 - 1 (quoting Pinholster, 563 U.S. at 196) (additional citations omitted); see also Leavitt v. 2 Arave, 646 F.3d 605, 609 (9th Cir. 2011). 3 As described above, trial counsel presented extensive evidence about Boggs’s social 4 history and mental health issues. Counsel focused on the diagnoses of bipolar disorder and 5 PTSD, but the record included numerous diagnoses rendered by mental health 6 professionals who had treated Boggs throughout his life. Counsel’s failure to add a 7 diagnosis of FAE or FASD to this evidence did not constitute deficient performance, 8 particularly because Boggs does not draw a connection between those conditions and his 9 conduct during the crimes. See State v. Newell, 212 Ariz. 389, 405, 132 P.3d 833, 849 10 (2006) (noting that while a causal connection is not required for mitigating evidence to be 11 considered, “the failure to establish such a causal connection may be considered in

12 assessing the quality and strength of the mitigation evidence”). This contrasts with the

13 mitigation testimony of Dr. Lanyon, who drew connections between Boggs’s bipolar

14 disorder and his behavior in committing the murders. (See RT 5/10/05 at 131, 171, 175.)

15 Even if counsel performed deficiently in failing to pursue evidence of FASD, Boggs

16 cannot show he was prejudiced given the mitigating evidence that was presented and the strength of the aggravating factors. The jury found three aggravating factors, one of which, 17 the multiple-homicides aggravator, carries “extraordinary weight” in the sentencing 18 calculus. State v. Hampton, 213 Ariz. 167, 185,140 P.3d 950, 968 (2006). There was not a 19 reasonable probability that the jury would have reached a different sentence if counsel had 20 presented evidence that Boggs suffered from FASD in addition to the social history and 21 mental health information they did present. 22 In Landrigan, 550 U.S. at 480–81, the Supreme Court held the petitioner was not 23 prejudiced by counsel’s failure to present mitigating evidence indicating that the petitioner 24 suffered from fetal alcohol syndrome, was abandoned by his birth mother, was raised by 25 an alcoholic adoptive mother, began abusing alcohol and drugs at an early age, and had a 26 genetic predisposition to violence. The Court described the evidence as “poor quality” and 27 therefore not supportive of a colorable claim of ineffective assistance of counsel. Id.; see 28 Rhoades v. Henry, 638 F.3d 1027, 1052 (9th Cir. 2010) (holding “that [petitioner’s] newly

- 79 - 1 proffered facts . . . add too little, and the aggravating circumstances are too strong, to make 2 it reasonably probable that the sentencing decision would have been different but for 3 counsel’s performance”). 4 Counsel did not perform ineffectively by failing to present evidence that Boggs 5 suffered from FASD. PCR counsel was not ineffective for failing to raise this claim. There 6 was not a reasonable probability that the result of the PCR proceedings would have been 7 different if counsel had raised the claim. Claim 16(C) therefore remains defaulted and 8 barred from federal review. Even if the default were excused, the claim is meritless under 9 Strickland. 10 Claim 16(C) is denied. 11 Claim 16(D)

12 Boggs alleges that counsel performed ineffectively by failing to argue that his lack

13 of a prior criminal record was a mitigating circumstance. (Doc. 15 at 280.) The PCR court

14 rejected this claim:

15 Petitioner mischaracterizes his past. Evidence was presented that when Petitioner was about eleven he was placed on juvenile probation, indicating 16 that he may have been adjudicated delinquent. See May 10, 2005 R.T., at 35. Had counsel claimed that Petitioner lacked a criminal record, the State might 17 have been permitted further inquiry into the juvenile matter, to Petitioner’s 18 detriment (not only for the underlying facts of the adjudication itself but also as to the fact of the adjudication, which might show that Petitioner had 19 attempted to mislead the jury). Such would likely have resulted in prejudice 20 at the mitigation phase. 21 Based on the foregoing, the Court finds that Petitioner has failed to raise a 22 colorable claim for relief and to establish either deficient performance or prejudice. 23 (Doc. 21, Ex. K, ROA-PCR Item 64 at 6.) 24 This decision was neither contrary to nor an unreasonable application of clearly 25 established federal law, nor was it based on an unreasonable determination of the facts. 26 Boggs criticizes the PCR court’s decision, arguing that juveniles are “adjudicated, 27 not convicted,” that his juvenile record had already been placed into the record, and that 28 his juvenile record was mitigating rather than aggravating. (Doc. 15 at 282.)

- 80 - 1 Applying the “doubly deferential” standard of Strickland and § 2254(d), Richter, 2 562 U.S. at 105, the PCR court’s decision does not entitle Boggs to relief. Respondents 3 detail Boggs’s juvenile record. (Doc. 21 at 205–06.) As the PCR court noted, if counsel 4 had argued that Boggs’s lack of an adult criminal record was mitigating, the State could 5 have countered with the details of Boggs’s extensive juvenile record. 6 In addition, as the PCR court found, Boggs was not prejudiced by counsel’s failure 7 to argue that his lack of an adult criminal record was mitigating. “[A] defendant’s lack of 8 a prior felony conviction ‘is a mitigating circumstance, but entitled to little weight.’” State 9 v. Gomez, 231 Ariz. 219, 227, 293 P.3d 495, 503 (2012) (quoting State v. Greene, 192 Ariz. 10 431, 442, 967 P.2d 106, 117 (1998)). 11 As a relatively weak mitigating circumstance, Boggs’s lack of a criminal record 12 would have been balanced against three aggravating factors, including the multiple- 13 homicides aggravating factor which carries extraordinary weight. Boggs, 218 Ariz. at 344, 14 185 P.3d at 130. There was not a reasonable probability that adding this mitigating 15 circumstance would have led to a different sentence. 16 Claim 16(D) is denied. 17 Claim 16(E) 18 Boggs alleges that counsel performed ineffectively by failing to establish a nexus 19 between the mitigation evidence and the offense. (Doc. 15 at 283.) The PCR court denied 20 this claim: 21 At the penalty phase, neither of Petitioner’s experts could testify to his mental state at the time of the murders (May 10, 2005 R.T. at 87 (Dr. Ruiz); 168-69 22 (Dr. Lanyon)), or that he did not know right from wrong. In its independent 23 review, the Supreme Court accorded less weight to Petitioner’s mitigation evidence of his difficult upbringing and poor mental health due to its lack of 24 a causal link to the murders. Boggs, 218 Ariz. at 340, 185 P.3d at 126. 25 Although Petitioner now claims ineffective assistance because trial counsel 26 failed to establish this causal link, he provides no affidavits or any other 27 evidence suggesting how counsel could have established such a connection. The Court is not required to conduct an evidentiary hearing based on mere 28

- 81 - 1 generalizations and unsubstantiated claims of ineffective assistance. State v. 2 Borbon, 146 Ariz. 392, 706 P.2d 718 (1985).

3 Based on the foregoing, the Court finds that Petitioner has failed to raise a colorable claim for relief and to establish either deficient performance or 4 prejudice. 5 (Doc. 21, Ex. K, ROA-PCR Item 64 at 9.) 6 This decision was neither contrary to nor an unreasonable application of clearly 7 established federal law, nor was it based on an unreasonable interpretation of the facts. 8 First, Boggs offers only conclusory assertions that trial counsel could have drawn a 9 causal connection between the mitigation evidence and Boggs’s crimes. (See Doc. 15 at 10 284–85.) Moreover, as already noted, counsel did present, through the testimony of Dr. 11 Lanyon, evidence that Boggs’s conduct at the time of the crimes was influenced by his 12 bipolar condition. (See RT 5/10/05 at 131, 171, 175.) Under the “doubly deferential” 13 standard of Strickland and § 2254(d), Richter, 562 U.S. at 105, the PCR court’s decision 14 does not entitle Boggs to relief. 15 Claim 16(E) is denied. 16 Claim 16(F) 17 In this defaulted claim, Boggs alleges that counsel performed ineffectively by 18 failing to object to the prosecutor’s causal nexus argument.12 (Doc. 15 at 285.) 19 The State attacked the mitigation evidence presented by Boggs, arguing that it was 20 not supported by the evidence. (See RT 5/12/05 at 32–35.) Specifically, with respect to 21 Boggs’s bipolar diagnosis, the prosecutor contended “there is nothing that has been 22 introduced in this courtroom that tells you that anything that happened on May 19th had 23 24 12 In Eddings v. Oklahoma, 455 U.S. 104, 113–15 (1982), the Supreme Court held 25 that “[j]ust as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any 26 relevant mitigating evidence. . . . The sentencer . . . may determine the weight to be given relevant mitigating evidence. But they may not give it no weight by excluding such 27 evidence from their consideration.” In Tennard, the Supreme Court rejected a “nexus” test 28 under which mitigating evidence was relevant only when it bore a causal nexus to the crime. 542 U.S. at 287.

- 82 - 1 anything to do with a bipolar disorder. There was no manic state. There was no 2 spontaneous, zooming, go fast mentality. This was a crime that was planned and carried 3 out. Three people murdered for money and then covered up.” (RT 5/12/05 at 33.) 4 According to Boggs, these comments constituted prosecutorial misconduct by 5 misrepresenting the law regarding mitigation, and counsel performed ineffectively by 6 failing to object. (Doc. 15 at 286.) 7 The prosecutor, however, did not commit misconduct. Although the prosecutor 8 argued that the condition was not connected to Boggs’s actions at the time of the crimes, 9 he did not suggest that the jury was precluded from considering Boggs’s bipolar condition 10 or any other mitigating evidence. Instead, the prosecutor was making a permissible 11 argument about the weight of the mitigating evidence. See State v. Pandeli, 215 Ariz. 514, 12 525–26, 161 P.3d 557, 568–69 (2007) (explaining that prosecutor may properly argue that 13 mitigating evidence is not particularly relevant or is entitled to little weight because it is 14 unconnected to crime). This argument is consistent with Supreme Court precedent holding 15 that the sentencer is free to determine the weight to be ascribed to mitigating evidence. See 16 Harris v. Alabama, 513 U.S. 504, 512 (1995) (“[T]he Constitution does not require a State 17 to ascribe any specific weight to particular factors, either in aggravation or mitigation, to 18 be considered by the sentencer.”); see also Ortiz v. Stewart, 149 F.3d 923, 943 (9th Cir. 19 1998) (explaining that a sentencer may not be precluded from considering relevant 20 mitigation, but “is free to assess how much weight to assign to such evidence”), overruling 21 on other grounds recognized by Apelt v. Ryan, 878 F.3d 800, 827 (9th Cir. 2017). 22 Because the prosecutor’s argument was not improper, trial counsel did not perform 23 ineffectively by failing to object. See James, 24 F.3d at 27. PCR counsel was not ineffective 24 for failing to raise this claim of ineffective assistance of trial counsel. There was not a 25 reasonable probability that the result of the PCR proceedings would have been different if 26 counsel had raised the claim. Claim 16(F) therefore remains defaulted and barred from 27 federal review. 28 ///

- 83 - 1 Claim 16(G) 2 In this defaulted claim, Boggs alleges that counsel performed ineffectively by 3 failing to object to the jury instruction on mitigation. (Doc. 15 at 287.) The court instructed 4 the jury as follows: 5 Mitigation in this case has been offered. Your decision now is whether that 6 mitigation actually exists. And the defense has to prove it to you by a preponderance of the evidence but they have to prove it to you. Whether the 7 defense has proven it and only if proven, whether it is sufficiently substantial 8 to call for leniency, these are your considerations. 9 (RT 5/12/05 at 28.) 10 The jury instruction was correct under Arizona law and constitutionally permissible. 11 As noted above, the Supreme Court has held that requiring capital defendants to prove 12 mitigating circumstances by a preponderance of the evidence is constitutional. Walton, 497 13 U.S. at 649–51 (1990); see also Marsh, 548 U.S. at 173. Counsel was not ineffective for 14 failing to raise a meritless objection. See Jones v. Smith, 231 F.3d 1227, 1239 n.8 (9th Cir. 15 2000); Boag, 769 F.2d at 1344. 16 PCR counsel was not ineffective for failing to allege ineffective assistance of trial 17 counsel. There was not a reasonable probability that the result of the PCR proceedings 18 would have been different if counsel had raised the claim. Claim 16(G) therefore remains 19 defaulted and barred from federal review. 20 Claim 16(H) 21 Boggs alleges that counsel performed ineffectively by failing to adequately 22 challenge the rebuttal testimony. (Doc. 15 at 288.) The PCR court denied this claim, finding 23 that it was both precluded and that Boggs failed to establish deficient performance or 24 prejudice because the Arizona Supreme Court resolved the admissibility of the evidence 25 on direct appeal. (Ex. K, ROA-PCR Item 64, at 9.) 26 The Arizona Supreme Court noted that counsel failed to object to Boggs’s letters on 27 foundational grounds. As Respondents explain, however, the court rejected as “not 28

- 84 - 1 persuasive” his argument on appeal that the letters were unreliable because there was 2 insufficient proof he wrote them: 3 First, nearly identical letters were sent to the lead detective and to the 4 prosecutor. Second, Boggs’ militia title was “Chief of Staff,” and the letters specifically referred to the “Chief.” Third, jail staff intercepted one of the 5 letters, which an inmate stated that Boggs had asked him to mail. Finally, the 6 letters stated, “we know where you live,” and Boggs possessed an address for Vogel. The introduction of the threatening letters at the penalty phase did 7 not violate Boggs’ due process rights. 8 Boggs, 218 Ariz. at 340, 185 P.3d at 126. 9 Given the Arizona Supreme Court’s conclusion that reliable evidence established 10 that Boggs wrote the letters, it was reasonable for the PCR court to find that counsel did 11 not perform ineffectively by failing to raise a foundational challenge. Claim 16(H) is 12 denied. 13 Claim 16(I) 14 Boggs alleges that counsel performed ineffectively by failing to ensure that their 15 representation did not cumulatively prejudice Boggs. (Doc 15 at 291.) The PCR court 16 rejected this claim: 17 As set forth above, the Court has considered each of Petitioner’s ineffective assistance claims and found no colorable claims. As counsel’s performance 18 was not deficient, Petitioner cannot show that absent these alleged 19 deficiencies, the outcome of his trial might have been different. Accordingly, the Court finds that this claim also is not colorable. 20 21 (Ex. K, ROA-PCR Item 64, at 10.) 22 This decision was neither contrary to nor an unreasonable application of clearly 23 established federal law. 24 As previously noted, the United States Supreme Court has not specifically 25 recognized the doctrine of cumulative error as an independent basis for habeas relief. 26 Therefore, the PCR court’s denial of this claim was not contrary to clearly established 27 federal law under § 2254(d)(1). In addition, “[b]ecause there is no single constitutional 28

- 85 - 1 error in this case, there is nothing to accumulate to the level of a constitutional violation.” 2 Mancuso, 292 F.3d at 957. Claim 16(I) is denied. 3 Conclusion 4 Boggs has not met his burden under Strickland of proving that trial counsel’s 5 performance at the penalty phase of trial was deficient or prejudicial. With respect to the 6 exhausted claims, Boggs fails to meet the doubly deferential standard under the AEDPA. 7 With respect to the defaulted claims, Boggs has not established cause under Martinez 8 because he has not shown that PCR counsel’s performance was ineffective. Accordingly, 9 Claim 16 is denied. 10 Claim 20 11 Boggs alleges numerous claims of ineffective assistance of appellate counsel. (Doc. 12 15 at 313.) Boggs did not raise these claims in state court, but Respondents concede that 13 two of the claims were exhausted when the PCR court addressed the underlying issues in 14 its order denying relief. Those issues were the trial court’s failure to record bench 15 conferences and the trial court’s failure to hold a pretrial Rule 404(b) hearing. 16 The remaining claims of ineffective assistance of appellate counsel are 17 unexhausted.13 Because Martinez does not apply to excuse the default of claims of 18 ineffective assistance of appellate counsel, Davila, 137 S. Ct. at 2062–63, the claims are 19 procedurally defaulted and barred from federal review. 20 The PCR court’s rejection of the exhausted claims was neither contrary to nor an 21 unreasonable application of clearly established federal law. 22 Ineffective assistance of appellate counsel claims are evaluated under the Strickland 23 standard. See Moormann v. Ryan, 628 F.3d 1102, 1106 (9th Cir. 2010) (citing Smith v. 24 Robbins, 528 U.S. 259, 285 (2000)). First, Boggs must show that appellate counsel’s 25 13 The unexhausted claims are as follows: failure to raise issues regarding Boggs’s 26 competency; failure to challenge Boggs’s shackling; failure to object to crime scene and 27 autopsy photos; failure to challenge jury instructions; and failure to raise claims of prosecutorial misconduct. (Doc. 15 at 313–25.) 28

- 86 - 1 performance was objectively unreasonable, which requires him to demonstrate that counsel 2 acted unreasonably in failing to discover and brief a merit-worthy issue. Id. Second, he 3 must show prejudice, which means he must demonstrate a reasonable probability that, but 4 for appellate counsel’s failure to raise the issue, he would have prevailed in his appeal. Id. 5 “[F]ailure to raise issues on direct appeal does not constitute ineffective assistance when 6 appeal would not have provided grounds for reversal.” Wildman v. Johnson, 261 F.3d 832, 7 840 (9th Cir. 2001) (citing Jones, 231 F.3d at 1239 n.8). 8 Boggs alleges that appellate counsel performed ineffectively by failing to challenge 9 the admission of evidence of his militia involvement under Rule 404(b) of the Arizona 10 Rules of Criminal Procedure. (Doc. 15 at 318.) The PCR court rejected this claim, 11 concluding that the militia evidence was admissible and therefore appellate counsel did not 12 perform ineffectively in failing to challenge it. (Doc. 21, Ex. K, ROA-PCR Item 64 at 13.) 13 The court noted that the Arizona Supreme Court held the evidence admissible in Hargrave, 14 225 Ariz. at 8–9, 234 P.3d at 576–77. (Id.) 15 Boggs also alleges that appellate counsel was ineffective for not challenging the trial 16 court’s failure to maintain a complete record. (Doc. 15 at 320.) The PCR court rejected this 17 claim on its merits, finding that appellate counsel was not ineffective because the claim 18 would have been rejected on direct appeal. (Doc. 21, Ex. K, ROA-PCR Item 64 at 12–13.) 19 The court explained that Boggs did not object to the unrecorded conferences and there was 20 no indication he was prejudiced. (Id.) 21 The PCR court’s decisions do not satisfy § 2254(d). It would have been futile for 22 counsel to challenge the admissibility of the militia evidence on direct appeal to the 23 Arizona Supreme Court because in Hargrave’s case the court ruled that the same 24 information was admissible as evidence of motive and that its probative value was not 25 substantially outweighed by the prejudice it might cause. Hargrave, 225 Ariz. at 8–9, 234 26 P.3d at 576–77. 27 The Arizona Supreme Court has also held that “[a] defendant who does not object 28 to proceeding [with bench conferences] without a reporter . . . waives his right to complain

- 87 - 1 that the proceedings were not recorded.” Dann, 220 Ariz. at 370, 207 P.3d at 623. Boggs 2 did not object at trial, so an appellate claim raising the issue would have been futile. 3 Moreover, as the PCR court found, Boggs did not establish that he was prejudiced by the 4 unrecorded conferences. 5 The exhausted aspects of Claim 20 are meritless. The remaining allegations are 6 procedurally defaulted and barred from federal review. Claim 20 is denied. 7 IV. CERTIFICATE OF APPEALABILITY 8 Pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure, an applicant 9 cannot take an appeal unless a certificate of appealability has been issued by an appropriate 10 judicial officer. Rule 11(a) of the Rules Governing Section 2254 Cases provides that the 11 district judge must either issue or deny a certificate of appealability when it enters a final 12 order adverse to the applicant. If a certificate is issued, the court must state the specific 13 issue or issues that satisfy 28 U.S.C. § 2253(c)(2). 14 Under § 2253(c)(2), a certificate of appealability may issue only when the petitioner 15 “has made a substantial showing of the denial of a constitutional right.” This showing can 16 be established by demonstrating that “reasonable jurists could debate whether (or, for that 17 matter, agree that) the petition should have been resolved in a different manner” or that the 18 issues were “adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 19 529 U.S. 473, 484 (2000). For procedural rulings, a certificate of appealability will issue 20 only if reasonable jurists could debate whether the petition states a valid claim of the denial 21 of a constitutional right and whether the court’s procedural ruling was correct. Id. 22 The Court finds that reasonable jurists could debate its resolution of Claims 3, 23 alleging a denial of the Petitioner’s right of self-representation, and 16(A) 16(C) and 16(E), 24 alleging ineffective assistance of counsel at sentencing for failure to investigate and present 25 mitigating evidence. 26 /// 27 /// 28 ///

- 88 - 1 V. CONCLUSION 2 3 Based on the foregoing, 4 IT IS HEREBY ORDERED that Boggs’s Petition for Writ of Habeas Corpus 5 (Doc. 15) is DENIED. The Clerk of Court shall enter judgment accordingly. 6 IT IS FURTHER ORDERED granting a certificate of appealability with respect 7 to Claims 3, 16(A) 16(C) and 16(E). 8 IT IS FURTHER ORDERED that the Clerk of Court forward a courtesy copy of 9 this Order to the Clerk of the Arizona Supreme Court, 1501 W. Washington, Phoenix, AZ 10 85007-3329. 11 Dated this 27th day of March, 2020. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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