Ellison v. Shinn

• Court: District Court, D. Arizona
• Decided: March 5, 2024
• Docket: 3:16-cv-08303
• Status: Unknown

Opinion

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Charles David Ellison, No. CV-16-8303-PHX-DWL 10 Petitioner, ORDER 11 v. DEATH PENALTY CASE 12 Ryan Thornell, et al., 13 Respondents. 14 15 Petitioner Charles David Ellison is an Arizona death row inmate seeking habeas 16 relief pursuant to 28 U.S.C. § 2254. Before the Court are his habeas petition and his request 17 for evidentiary development. (Docs. 21, 41.) Respondents filed an answer to the petition 18 and an opposition to the request for evidentiary development. (Docs. 30, 50.) The petition 19 and the request for evidentiary development are denied for the reasons set forth below. 20 BACKGROUND 21 On January 18, 2002, a jury in Mohave County convicted Ellison of two counts of 22 first-degree murder and one count of first-degree burglary. In February 2004, following 23 sentencing proceedings before a separate jury, the superior court sentenced him to death 24 for each murder and to a concurrent sentence of 12.5 years for the burglary conviction. 25 The Arizona Supreme Court described the facts surrounding the crimes in its opinion 26 affirming the convictions and sentences. State v. Ellison, 140 P.3d 899, 906-08 (Ariz. 27 2006). These facts, summarized below, are “presumed correct.” Atwood v. Ryan, 870 F.3d 28 1033, 1039 (9th Cir. 2017) (citing 28 U.S.C. § 2254(e)(1)). Case 3:16-cv-08303-DWL Document 71 Filed 03/05/24 Page 2 of 208

1 On the morning of February 26, 1999, police went to the home of Joseph and Lillian 2 Boucher after their daughter, Vivian Brown, was unable to contact them. When no one 3 answered the door, police entered the home through the kitchen, where they noticed a 4 telephone with its line cut and cord missing and a knife block with a missing knife. 5 Police discovered the body of Joseph Boucher, age 79, on a bed in one bedroom. 6 He had defensive wounds and cuts and scrapes on his wrists and arms indicating he had 7 been bound. Police found Lillian Boucher’s body on the floor in another bedroom. Mrs. 8 Boucher, 73, had bruises on her face and body consistent with an altercation and a small 9 amount of blood around her nose. According to the medical examiner, Mr. Boucher had 10 been asphyxiated by smothering. Mrs. Boucher had been asphyxiated by smothering or a 11 combination of smothering and strangulation. A number of items were missing from the 12 house, including a .22 caliber handgun, a pellet gun, and items of jewelry belonging to each 13 victim. 14 On February 26, 1999, Brad Howe contacted police with information that he had 15 obtained from Richard Finch. Finch worked for Howe and his father as a “lot boy” at their 16 auto dealership in Lake Havasu City and lived at Howe’s house. According to Howe, Finch 17 was “simple” and, because Finch could not manage his own finances, Howe and his father 18 gave Finch money only as he needed it. 19 Howe told the police he did not see Finch on the night of February 24, 1999. The 20 next night, however, they went drinking at several bars. Howe offered to pay as usual, but 21 Finch surprised him by offering to buy drinks and displaying $250 to $300. Howe told 22 police that Finch was drinking heavily and acting as if something was on his mind. Howe 23 repeatedly asked Finch what was distracting him. Finch became “very upset” and admitted 24 he had been involved in “some bad things.” The two then left the bar. On the drive home, 25 Finch told Howe more details about what had happened. 26 Once home, Finch, upset and crying, retrieved a bag and showed Howe the contents. 27 Howe did not want the items in his house, so he took the bag and hid it in the desert in the 28 early morning hours of February 26, 1999. He later led police to the bag, which contained

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1 several items stolen from the Bouchers’ home. 2 The same day, police officers went to Howe’s house and arrested Finch, who had 3 packed his belongings as if planning to leave. After being advised of his rights under 4 Miranda v. Arizona, 384 U.S. 436 (1966), Finch agreed to speak with police. In a taped 5 interview, Finch confessed his involvement in the murders. He identified a man called 6 “Slinger” as his companion in the crimes. Slinger was a nickname used by Ellison. Two 7 days later, Finch helped police find the missing kitchen knife in a field behind the 8 Bouchers’ house. 9 On March 1, 1999, after unsuccessfully searching for Ellison at the house of his 10 girlfriend, Cathie Webster-Hauver, Kingman Police Department detectives Steven Auld 11 and Lyman Watson learned that Ellison had been arrested in Lake Havasu. After informing 12 Ellison of his Miranda rights, the detectives interviewed him at the Lake Havasu police 13 station just before 9:00 a.m. 14 Ellison told the detectives he had met Finch two or three weeks earlier at Darby’s, 15 a Lake Havasu bar. The two men met again at Darby’s on February 24, 1999, where Ellison 16 agreed to do “a job” with Finch in Kingman. Ellison said that he intended only to commit 17 a burglary, not to kill anyone. 18 After leaving Darby’s that night, Ellison and Finch drove Ellison’s van to Kingman, 19 where they stopped at the Sundowner’s Bar. According to the bartender, Jeannette Avila, 20 Ellison entered the bar first, ordered and paid for beers, talked to her at length, and led the 21 way when the two men left. Finch never spoke to Avila but sat at the bar without removing 22 his sunglasses. Avila later identified Ellison in a photographic line-up but was unable to 23 identify Finch. 24 Ellison said he and Finch next drove to a nearby movie theater and parked the van. 25 According to Ellison, Finch led the way to the Bouchers’ house and entered first. Once 26 inside, Ellison and Finch ordered Mrs. Boucher from the living room and into Mr. 27 Boucher’s bedroom. Ellison admitted binding the victims with the phone cords and 28 masking tape but claimed to have done so only at Finch’s direction.

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1 Ellison said Finch then pointed a gun at him and ordered him to kill Mr. Boucher. 2 By his account, Ellison held a pillow over Mr. Boucher’s face for a period of time, possibly 3 only a few seconds, while Finch strangled Mrs. Boucher. Ellison said he removed the 4 pillow when Mr. Boucher stopped struggling but claimed he thought Mr. Boucher was still 5 alive because his chest was moving up and down. Ellison said he told Finch that Finch 6 would have to finish off Mr. Boucher. Ellison also said that Finch moved Mrs. Boucher’s 7 body to another bedroom after strangling her. 8 Ellison claimed that it was Finch’s idea to “hit” the house and that he did not know 9 how Finch had picked the Bouchers’ home. Ellison admitted he was somewhat familiar 10 with the area because his parents lived nearby. Additionally, at trial, Vivian Brown (the 11 Bouchers’ daughter) identified Ellison as having worked on her parents’ home in October 12 1997 and at a nearby house the next year. According to Howe, Finch did not possess a gun 13 or a vehicle and had never been to Kingman before February 24, 1999. 14 No physical evidence proved who killed either victim. None of the fingerprints 15 found in the house matched Ellison or Finch. However, police found a latex glove in the 16 Bouchers’ yard, and Ellison later admitted he had supplied the latex gloves that he and 17 Finch wore during the burglary. None of the Bouchers’ property was found on Ellison, in 18 his van, or at his girlfriend’s home. Ellison, however, was not arrested until five days after 19 the murders. Ellison admitted removing jewelry from Mrs. Boucher’s body but said he did 20 so only at Finch’s direction. He also admitted using $20 stolen from the Bouchers to buy 21 gas for his van. 22 The detectives attempted to record their initial interview with Ellison but failed to 23 do so. Detective Watson re-interviewed Ellison at 10:06 a.m. In this nine-minute recorded 24 interview, Detective Watson tried to summarize the main points of the first interview. This 25 tape was played for the jury during the guilt phase of trial. 26 On March 4, 1999, Ellison and Finch were indicted for the murders and first-degree 27 burglary. The State sought the death penalty for each defendant. Judge Robert R. Moon 28 severed their trials. In September 2000, a jury convicted Finch on the murder and burglary

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1 charges. In March 2001, Judge Moon sentenced Finch to natural life imprisonment, 2 finding, among other things, mitigating factors due to Finch’s having acted under duress 3 from Ellison and later cooperating with police in the investigation. 4 Ellison was represented at trial by Vincent Iannone as lead counsel and Eric Engan 5 as co-counsel.1 Iannone, a private attorney, was appointed in October 2000. 6 Ellison was tried in January 2002 before Judge Moon. The jury convicted Ellison 7 on the murder and burglary charges, finding him guilty of both premeditated and felony 8 murder of the Bouchers. The jury also found that he had either killed, intended to kill, or 9 acted with reckless indifference. 10 Before Ellison was sentenced, the Supreme Court decided Ring v. Arizona (“Ring 11 II”), 536 U.S. 584 (2002), which held that Arizona’s capital sentencing scheme, in which 12 judges rather than juries made the findings rendering a defendant death-eligible, was 13 unconstitutional. The Arizona legislature then amended Arizona’s statutes to provide for 14 jury findings of aggravating and mitigating circumstances and jury sentencing. A.R.S. 15 § 13-703.01. A newly-impaneled jury heard Ellison’s sentencing proceeding in January 16 and February 2004. The jury found six aggravating factors: (1) Ellison had a previous 17 serious felony conviction; (2) the murders were committed for pecuniary gain; (3) the 18 murders were especially cruel; (4) the murders were committed while Ellison was on 19 parole; (5) there were multiple murders; and (6) the victims were more than 70 years old. 20 The jury determined that death was the appropriate sentence for each murder. 21 The Arizona Supreme Court affirmed the convictions and sentences. Ellison, 140 22 P.3d 899. Ellison then pursued post-conviction relief (“PCR”). The state court2 ultimately 23 denied his claims and the Arizona Supreme Court summarily denied Ellison’s petition for 24 25 26 1 Kenneth Everett and Stephen Wallin from the Mohave County Public Defender’s 27 Office represented Ellison until the Office withdrew in October 2000. 2 28 Visiting Judge Michael Jones, of the Maricopa County Superior Court, presided over Ellison’s PCR proceedings.

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1 review.3 2 In 2016, Ellison filed a notice of intent to pursue habeas relief in this Court. (Doc. 3 1.) The Court appointed the Federal Public Defender for the District of Arizona to 4 represent him. (Doc. 5.) Ellison filed a petition for writ of habeas corpus in August 2017 5 and an amended petition on March 23, 2018. (Docs. 18, 21.) 6 APPLICABLE LAW 7 Ellison’s request for habeas relief is governed by the Antiterrorism and Effective 8 Death Penalty Act of 1996 (“AEDPA”).4 The following legal framework guides the 9 analysis of Ellison’s claims. 10 I. Exhaustion And Procedural Default 11 A writ of habeas corpus cannot be granted unless the petitioner has exhausted all 12 available state court remedies. 28 U.S.C. § 2254(b)(1). See also Coleman v. Thompson, 13 501 U.S. 722, 731 (1991) (“This Court has long held that a state prisoner’s federal habeas 14 petition should be dismissed if the prisoner has not exhausted available state remedies as 15 to any of his federal claims.”). To exhaust state remedies, the petitioner must “fairly 16 present[]” his claims to the state’s highest court in a procedurally appropriate manner. 17 O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). A claim is “fairly presented” if the 18 petitioner has described the operative facts and the federal legal theory on which the claim 19 is based. Anderson v. Harless, 459 U.S. 4, 6 (1982). A petitioner must “clearly alert[] the 20 [state] court that he is alleging a specific federal constitutional violation.” Casey v. Moore, 21 386 F.3d 896, 913 (9th Cir. 2004). He must make the federal basis of the claim explicit, 22 either by citing specific provisions of federal law, even if the federal basis of a claim is 23 “self-evident,” Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999), or by citing state 24 cases that explicitly analyze the same federal constitutional claim, Peterson v. Lampert, 25 26 3 When the state’s highest court denies a claim summarily, a federal court looks 27 through to the last reasoned decision. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).

28 4 Ellison’s challenge to the constitutionality of AEDPA (Doc. 21 at 43-46) is foreclosed by Ninth Circuit law. Crater v. Galaza, 491 F.3d 1119, 1125-26 (9th Cir. 2007).

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1 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc). 2 In Arizona, there are two avenues for petitioners to exhaust federal constitutional 3 claims: direct appeal and PCR proceedings. Rule 32 of the Arizona Rules of Criminal 4 Procedure governs PCR proceedings. It provides that a petitioner is precluded from relief 5 on any claim that could have been raised on direct appeal or in a prior PCR petition. 6 See Ariz. R. Crim. P. 32.2(a)(3). The preclusive effect of Rule 32.2(a)(3) may be avoided 7 only if a claim falls within certain exceptions and the petitioner can justify the claim’s 8 omission from a prior petition.5 See Ariz. R. Crim. P. 32.1(b)-(h), 32.2(b), 32.4(b). 9 A habeas petitioner’s claims may be precluded from federal review in two ways. 10 First, a claim may be procedurally defaulted if it was actually raised in state court but found 11 by that court to be defaulted on state procedural grounds. Coleman, 501 U.S. at 729-30. 12 Second, a claim may be procedurally defaulted if the petitioner failed to present it in state 13 court and “the court to which the petitioner would be required to present his claims in order 14 to meet the exhaustion requirement would now find the claims procedurally barred.” Id. 15 at 735 n.1. If no remedies are currently available, the claim is “technically” exhausted but 16 procedurally defaulted. Id. See also Gray v. Netherland, 518 U.S. 152, 161-62 (1996); 17 Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011). 18 II. AEDPA 19 Under AEDPA, a petitioner is not entitled to habeas relief on any claim adjudicated 20 on the merits in state court unless the state court’s ruling (1) resulted in a decision that was 21 contrary to, or involved an unreasonable application of, clearly established federal law; or 22 (2) resulted in a decision that was based on an unreasonable determination of the facts in 23 light of the evidence presented in state court. 28 U.S.C. § 2254(d). 24 “A state-court decision is contrary to Supreme Court precedent if the state court 25 5 26 To the extent this order concludes that Ellison does not have an available remedy in state court, because claims or portions of claims would be precluded pursuant to Rule 27 32.2(a)(3), Ellison does not assert that any exceptions to preclusion are applicable. Beaty 28 v. Stewart, 303 F.3d 975, 987 & n.5 (9th Cir. 2002) (finding no available state court remedies and noting that petitioner did not attempt to raise any exceptions to Rule 32.2(a)).

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1 arrives at a conclusion opposite to that reached by the Supreme Court on a question of law 2 or the state court confronts facts that are materially indistinguishable from a relevant 3 Supreme Court precedent and arrives at a result opposite to the Supreme Court’s. A 4 decision involves an ‘unreasonable application’ of clearly established federal law under 5 § 2254(d)(1) if it identifies the correct governing legal principle but unreasonably applies 6 that principle to the facts of the prisoner’s case. The ‘unreasonable application’ clause 7 requires the state court decision to be more than incorrect or erroneous. The state court’s 8 application of clearly established law must be objectively unreasonable.” Hooper v. Shinn, 9 985 F.3d 594, 614 (9th Cir. 2021) (cleaned up). 10 The Supreme Court has emphasized that “an unreasonable application of federal 11 law is different from an incorrect application of federal law.” Williams v. Taylor, 529 U.S. 12 362, 407 (2000). “[T]he ruling must be ‘objectively unreasonable, not merely wrong; even 13 clear error will not suffice.’” Virginia v. LeBlanc, 582 U.S. 91, 94 (2017) (citation 14 omitted). The burden is on the petitioner to demonstrate “there was no reasonable basis 15 for the state court to deny relief.” Harrington v. Richter, 562 U.S. 86, 98 (2011). “The 16 prisoner must show that the state court’s decision is so obviously wrong that its error lies 17 beyond any possibility for fairminded disagreement.” Shinn v. Kayer, 529 U.S. 111, 118 18 (2020) (citation omitted). This standard is meant to be “difficult to meet.” Id. (citation 19 omitted). 20 As noted, under § 2254(d)(2), habeas relief is also available if the state court 21 decision was based on an unreasonable determination of the facts. Miller-El v. Dretke 22 (“Miller-El II”), 545 U.S. 231, 240 (2005). “Factual determinations by state courts are 23 presumed correct absent clear and convincing evidence to the contrary, and a decision 24 adjudicated on the merits in a state court and based on a factual determination will not be 25 overturned on factual grounds unless objectively unreasonable in light of the evidence 26 presented in the state-court proceeding.” Miller-El v. Cockrell (“Miller-El I”), 537 U.S. 27 322, 340 (2003) (citations omitted). A “factual determination is not unreasonable merely 28 because [a] federal habeas court would have reached a different conclusion in the first

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1 instance.” Wood v. Allen, 558 U.S. 290, 301 (2010); see also Brumfield v. Cain, 576 U.S. 2 305, 314 (2015) (explaining that § 2254(d)(2) requires federal courts to “accord the state 3 trial court substantial deference”); Walden v. Shinn, 990 F.3d 1183, 1196 (9th Cir. 2021) 4 (same); Ayala v. Chappell, 829 F.3d 1081, 1094 (9th Cir. 2016) (“A state court’s factual 5 findings are unreasonable if ‘reasonable minds reviewing the record’ could not agree with 6 them.”) (citation omitted). 7 The Supreme Court has clarified that “review under § 2254(d)(1) is limited to the 8 record that was before the state court that adjudicated the claim on the merits.” Cullen v. 9 Pinholster, 563 U.S. 170, 181 (2011). Additionally, the Ninth Circuit has observed that 10 “Pinholster and the statutory text make clear that this evidentiary limitation is applicable 11 to § 2254(d)(2) claims as well.” Gulbrandson v. Ryan, 738 F.3d 976, 993 n.6 (9th Cir. 12 2013). Therefore, “for claims that were adjudicated on the merits in state court, petitioners 13 can rely only on the record before the state court in order to satisfy the requirements of 14 § 2254(d). This effectively precludes federal evidentiary hearings for such claims because 15 the evidence adduced during habeas proceedings in federal court could not be considered 16 in evaluating whether the claim meets the requirements of § 2254(d).” Id. at 993-94. 17 III. Martinez And Ramirez 18 Procedural default is not an insurmountable bar to relief. A petitioner may raise a 19 defaulted claim if he “can demonstrate cause for the default and actual prejudice as a result 20 of the alleged violation of federal law, or demonstrate that failure to consider the claims 21 will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. “Cause to 22 excuse default exists if a petitioner can demonstrate that some objective factor external to 23 the defense impeded counsel’s efforts to comply with the state’s procedural rule. Prejudice 24 is actual harm resulting from the alleged error.” Vickers v. Stewart, 144 F.3d 613, 617 (9th 25 Cir. 1998) (citations omitted). 26 Because the acts of a petitioner’s counsel are not external to the defense, they are 27 generally attributable to the petitioner, and thus negligence, ignorance, or inadvertence on 28 counsel’s part does not qualify as “cause.” Coleman, 501 U.S. at 752-54. However, where

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1 the ineffective assistance of counsel amounts to an independent constitutional violation, it 2 can establish cause. Id. at 753-54. 3 Although Coleman held that ineffective assistance of counsel in PCR proceedings 4 cannot establish cause for a claim’s procedural default, the Supreme Court created a 5 “narrow exception” to that rule in Martinez v. Ryan, 566 U.S. 1 (2012). There, the Court 6 explained: 7 Where, under state law, claims of ineffective assistance of trial counsel must 8 be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective 9 assistance at trial if, in the initial-review collateral proceeding, there was no 10 counsel or counsel in that proceeding was ineffective. 11 Id. at 17. 12 “Thus, under Martinez, a petitioner may establish cause for procedural default of a 13 trial IAC claim, where the state (like Arizona) required the petitioner to raise that claim in 14 collateral proceedings, by demonstrating two things: (1) counsel in the [PCR] proceeding, 15 where the claim should have been raised, was ineffective . . . , and (2) the underlying 16 ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the 17 prisoner must demonstrate that the claim has some merit.” Cook v. Ryan, 688 F.3d 598, 18 607 (9th Cir. 2012) (cleaned up). 19 As for the former requirement, a petitioner must “establish that both (a) [PCR] 20 counsel’s performance was deficient, and (b) there was a reasonable probability that, absent 21 the deficient performance, the result of the [PCR] proceedings would have been different.” 22 Clabourne v. Ryan, 745 F.3d 362, 377 (9th Cir. 2014), overruled on other grounds by 23 McKinney v. Ryan, 813 F.3d 798, 819 (9th Cir. 2015). As for the latter requirement, the 24 standard for finding the underlying IAC claim “substantial” is analogous to the standard 25 for issuing a certificate of appealability. Detrich v. Ryan, 740 F.3d 1237, 1245 (9th Cir. 26 2013) (en banc). Under that standard, a claim is “substantial” if “reasonable jurists could 27 debate whether the issue should have been resolved in a different manner or that the claim 28 was adequate to deserve encouragement.” Id. (citing Miller-El I, 537 U.S. at 336).

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1 The Martinez exception to procedural default applies only to claims of ineffective 2 assistance of trial counsel. It has not been expanded to other types of claims. Martinez v. 3 Ryan, 926 F.3d 1215, 1225 (9th Cir. 2019) (“[I]neffective assistance of PCR counsel can 4 constitute cause only to overcome procedurally defaulted claims of ineffective assistance 5 of trial counsel.”); Davila v. Davis, 582 U.S. 521, 525 (2017) (“The question in this case 6 is whether we should extend that [Martinez] exception to allow federal courts to consider 7 a different kind of defaulted claim—ineffective assistance of appellate counsel. We decline 8 to do so.”). 9 Finally, the Supreme Court has limited the evidence that may be presented in 10 support of a Martinez argument (i.e., an argument that PCR counsel performed 11 ineffectively for purposes of cause and prejudice). In Shinn v. Ramirez, 142 S. Ct. 1718 12 (2022), the Court held that with respect to claims that were not adjudicated on the merits 13 in state court, “a federal court may not hold an evidentiary hearing—or otherwise consider 14 new evidence,” unless the “stringent requirements” of 28 U.S.C. § 2254(e)(2) are met. Id. 15 at 1739. 16 ANALYSIS 17 I. Guilt-Phase Claims 18 A. Claim 1 19 In Claim 1, Ellison alleges that his statements to the detectives were obtained and 20 admitted at trial in violation of the Fifth, Sixth, and Fourteenth Amendments. (Doc. 21 at 21 47-59.) More specifically, he argues that (1) the statements were taken in violation of his 22 right to counsel and his right to remain silent; and (2) he involuntarily waived his rights 23 based on promises of leniency. (Id.) The Arizona Supreme Court denied this claim on 24 direct appeal. Ellison, 140 P.3d at 908-11. 25 … 26 … 27 … 28 …

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1 1. Additional background 2 Before trial, Ellison moved to suppress his statements to the police, arguing that 3 they were involuntary and obtained in violation of Miranda. (ROA, Vol. I, Doc. 18.)6 As 4 a result, the trial court held a voluntariness hearing at which Detective Watson, Detective 5 Auld, and Ellison testified. 6 Detective Watson testified that on March 1, 1999, he and Detective Auld 7 interrogated Ellison twice, the second time because their attempt to record the first 8 interview failed. (RT 7/20/99 at 8-10.) More specifically, Detective Watson testified that 9 he borrowed a micro-cassette recorder from one of the Lake Havasu City officers and 10 concealed it in a manilla envelope to record the interrogation without Ellison knowing he 11 was being taped, but when the interrogation was over and Detective Watson played the 12 tape, he discovered it was blank. (Id. at 8-9.) 13 Detective Watson testified, with respect to the initial interview, that he advised 14 Ellison of his Miranda rights at 8:56 a.m. (Id. at 10-11.) According to Detective Watson, 15 he advised Ellison as follows: 16 You have the right to remain silent. Anything you say can and will be used 17 against you in a court of law. You have the right to the presence of an attorney to assist you during questioning. If you cannot afford an attorney, 18 one will be provided to you by the court. You also have the right to refuse 19 to answer any questions at any time if you decide to do so. And like what that last one means is if I ask you something too personal about your sex life, 20 you don’t have to answer it just because I’m a cop. Do you understand that? 21 (Id. at 33.) According to Detective Watson, Ellison stated he understood his rights and 22 agreed to talk to the detectives. (Id. at 11.) 23 Detective Watson testified that he told Ellison he had details of Ellison’s and Finch’s 24 25 6 “ROA” refers to the Record on Appeal in Ellison’s direct appeal to the Arizona 26 Supreme Court. The index to the ROA, which is divided into six volumes, identifies various documents in chronological order and assigns a number to each such document. 27 Here, the cited document is Document 18, which appears in Volume I of the ROA. The 28 ROA also includes various hearing transcripts. Each transcript will be cited as “RT” followed by the relevant hearing date.

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1 participation in the crimes. (Id.) Detective Auld told Ellison he “did not believe he 2 [Ellison] was a bad guy.” (Id. at 12.) Detective Watson then told Ellison that he “didn’t 3 believe that he . . . . intended for those people to die.” (Id.) 4 According to Detective Watson, “Ellison immediately sat back in his chair and said, 5 ‘Die? I don’t know what you’re talking about.’ And then shortly after that said, ‘I think I 6 might want a lawyer.’” (Id.) 7 Detective Auld similarly testified that Ellison “acted shocked. Sat back in his chair; 8 said ‘Die? I don’t know what you’re talking about.’” (Id. at 68.) Likewise, Detective 9 Auld testified (consistent with Detective Watson) that Ellison then said, “‘I think I might 10 want a lawyer.’” (Id. at 69.) 11 Detective Watson testified that, at this point in the interview, he and Detective Auld 12 told Ellison that they “could not talk to him any further until” until they had a clear “yes or 13 no” answer as to whether Ellison wanted an attorney. (Id. at 13.) Detective Auld told 14 Ellison that they had “a mountain of physical evidence and one side of the story” but they 15 couldn’t talk to him if he wanted a lawyer. (Id. at 13-14, 70.) The detectives also told 16 Ellison they had Finch in custody. (Id. at 14, 71.) 17 Detective Auld testified that he tried to get Ellison “to make it clear to me whether 18 or not he wanted a lawyer.” (Id. at 69.) Detective Auld testified that Ellison asked 19 questions about the charges, but either Detective Auld or Detective Watson told him they 20 could not continue the interview unless Ellison made it clear whether he wanted a lawyer. 21 (Id. at 69-70.) 22 Detective Auld then left the room, saying “Okay. That’s it, then. We’re done.” (Id. 23 at 14, 71.) He testified that he left because he was unsure whether Ellison wanted an 24 attorney. (Id. at 71.) According to Detective Watson, who stayed in the room, Ellison still 25 had not given a clear answer as to whether he wanted an attorney. (Id. at 15.) 26 At this point, according to Detective Watson, Ellison asked what he was being 27 charged with. (Id.) Detective Watson responded, “two counts of first degree murder.” 28 (Id.) Ellison “appeared to be very upset” and agitated. (Id. at 16.) He asked: “Can’t we

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1 just forget about the lawyer thing?” (Id.) Detective Watson replied: “No. If I’m not going 2 to lie to you, I’m not going to lie to a judge. We can’t just forget about the lawyer thing.” 3 (Id.) He told Ellison: “You need to be very clear. Do you want to talk to us or do you 4 not?” (Id.) In response, Ellison said “I will talk to you” and told Detective Watson that he 5 did not want an attorney. (Id.) 6 Detective Watson then called Detective Auld back into the room. (Id.) Detective 7 Auld advised Ellison that he had “a right to remain silent, that he had a right to have a 8 lawyer, that he needed to make it clear to us that he didn’t want a lawyer anymore, and that 9 he could stop talking to us at any time if he chose to or wanted to.” (Id. at 72.) Ellison 10 repeated that he was willing to talk and did not want a lawyer. (Id. at 17, 72-73.) 11 Ellison then spoke with the detectives. Both detectives testified that Ellison, just 12 before returning to his cell, offered to testify against Finch. (Id. at 19, 75.) According to 13 Detective Watson, testifying against Finch was Ellison’s idea. (Id. at 19.) Detective 14 Watson told Ellison he would relay the offer to the county attorney. (Id. at 20.) 15 Detective Watson denied making any promises of leniency or reduced charges or 16 using threats or physical force against Ellison. (Id. at 20-21.) Detective Watson 17 specifically denied that he or Detective Auld told Ellison he would not be charged with 18 murder if he cooperated. (Id. at 21.) 19 When Detective Watson realized the interview had not been recorded, he returned 20 to the jail to get “the highlights of the interview clarified on tape.” (Id.) A transcript of 21 the second, taped interview was admitted at the voluntariness hearing. (Id. at 22.) During 22 the second interview, Detective Watson asked Ellison: 23 I advised you of your rights before we talked right? Okay, during the 24 interview, you said you wanted an attorney. Then you said, “No, I will talk 25 to you.” You made it real clear to Steve and I that you would talk to us; is that correct? That’s a yes if you’re nodding your head. At that point Ellison 26 says “‘Yeah.’” 27 (Id. at 24.) Detective Watson also told Ellison: 28 Remember the deal, I’m not lying to you, I’m not going to bullshit you.

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1 That’s what got this whole thing started. . . . The reason I’ve come back 2 down here is I want to make sure it’s clear and there’s no mistakes. And when I talk to the county attorney and you said you’d testify, I want to have 3 what you were saying real clear about the fact that this was Richard’s idea. 4 (Id. at 23-24.) 5 During his testimony, Detective Watson reiterated that in the first interview Ellison 6 said “I think I might want a lawyer” and not, as phrased by Detective Watson in the second 7 interview, “you wanted an attorney.” (Id. at 26-27.) Detective Watson further testified 8 that the “deal” did not refer to leniency. (Id. at 37.) He stated that “deal” referred to 9 statements he made in the first interview about not lying or playing games. (Id. at 37.) 10 Ellison also testified during the voluntariness hearing and provided a very different 11 account of his interviews. He testified that the detectives informed him of his Miranda 12 rights and then “started talking about, you know, we know you’re not the bad guy here, we 13 know you didn’t kill anybody.” (RT 11/23/99 at 16.) According to Ellison, at that point 14 he “freaked out” and “said I want a lawyer.” (Id. at 16-17.) Ellison testified that Detective 15 Auld responded by asking if he wanted an attorney and he again said yes. (Id. at 17.) 16 Ellison testified that he believed Detective Auld was trying to intimidate him. (Id.) Ellison 17 also testified that the detectives talked about the mountain of physical evidence they had 18 against him and the fact that they only had one side of the story. (Id.) According to Ellison, 19 they asked him if he knew anything about the crimes. (Id. at 18.) 20 Ellison testified that Detective Auld “got mad and left.” (Id.) According to Ellison, 21 Detective Watson then said if he testified against Finch, Detective Watson would get the 22 county attorney to reduce the charges to burglary. (Id.) According to Ellison, only then 23 did he agree to talk. (Id. at 18-19.) Ellison testified that he would not have talked to the 24 detectives without the promise of leniency. (Id. at 26.) Ellison also denied the detectives’ 25 claim that testifying against Finch was his idea. (Id. at 30.) Ellison testified that he did not 26 make any specific statements about reduced charges or leniency during the taped interview 27 because he “thought it was clear what was going on.” (Id. at 31.) 28 Following Ellison’s testimony and the parties’ arguments, Judge Moon denied the

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1 motion to suppress. (Id. at 49.) He found that Ellison’s statements to Detectives Auld and 2 Watson were “made in compliance with the requirements of the Miranda decision.” (Id.) 3 He further found that Ellison understood those rights and voluntarily waived them— 4 including his right to the assistance of an attorney—before speaking with the detectives. 5 (Id. at 49, 50.) Judge Moon found Ellison’s testimony to be “highly suspect,” in part 6 because of Ellison’s prior felony convictions.7 (Id. at 49.) Judge Moon also found that 7 Ellison “did not initially clearly invoke his right to an attorney or request an attorney, but . 8 . . made an equivocal statement to the effect that he thought he might want an attorney, and 9 that the police did what the law requires them to do, which is . . . to get an unequivocal 10 answer that he’s either asking for an attorney or he’s agreeing to talk without an attorney.” 11 (Id. at 49-50.) Finally, Judge Moon determined that the detectives did not make “an express 12 or implied promise of any kind of leniency for making a statement” and that Ellison did 13 not rely on any promises in making his statements. (Id. at 50.) 14 2. Analysis 15 a. Right To Counsel 16 The Arizona Supreme Court denied Ellison’s claim that his rights under Miranda 17 were violated. Ellison, 140 P.3d at 909-10. That decision was not contrary to or an 18 unreasonable application of clearly established federal law, nor was it based on an 19 unreasonable determination of the facts. 20 When a suspect invokes his Fifth Amendment right to have counsel present during 21 a custodial interrogation, “the interrogation must cease until an attorney is present.” 22 Miranda, 384 U.S. at 474. Police may not continue questioning such a suspect without 23 counsel present “unless the accused himself initiates further communication.” Edwards v. 24 Arizona, 451 U.S. 477, 484-85 (1981). However, only an unambiguous invocation of the 25 right to counsel triggers protection under Edwards. Davis v. United States, 512 U.S. 452, 26 459 (1994) (“[I]f a suspect makes a reference to an attorney that is ambiguous or equivocal 27 7 28 Ellison testified that he had prior felony convictions for possession of marijuana and armed robbery. (RT 11/23/99 at 27.)

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1 in that a reasonable officer in light of the circumstances would have understood only that 2 the suspect might be invoking the right to counsel, our precedents do not require the 3 cessation of questioning.”). An invocation is unambiguous if the accused “articulate[s] his 4 desire to have counsel present sufficiently clearly that a reasonable police officer in the 5 circumstances would understand the statement to be a request for an attorney.” Id. “Mere 6 mention of an attorney does not constitute an [un]equivocal request for counsel, as the word 7 ‘attorney’ is not talismanic.” Norman v. Ducharme, 871 F.2d 1483, 1486 (9th Cir. 1989). 8 In sum, nothing prevents police from questioning a suspect “when the suspect might want 9 a lawyer. Unless the suspect actually requests an attorney, questioning may continue.” 10 Davis, 512 U.S. at 462. See also Arnold v. Runnels, 421 F.3d 859, 865 (9th Cir. 2005) 11 (“[J]ust as in Davis, where a suspect’s request for counsel is qualified with words such as 12 ‘maybe’ or ‘might,’ we have concluded that the suspect did not unambiguously invoke his 13 right to counsel.”). 14 The Arizona Supreme Court held that Ellison made only “an equivocal request for 15 counsel.” Ellison, 140 P.3d at 910. The court first noted that “[t]he only evidence 16 regarding Ellison’s reference to a lawyer is the conflicting testimony of Ellison and the 17 detectives” and that “Judge Moon, who was able to assess the witnesses during the 18 voluntariness hearing, determined that the officers’ account was more credible.” Id. 19 Viewing the evidence in the light most favorable to upholding the judge’s ruling, the court 20 assumed that Ellison said “I think I might want an attorney.” Id. This is a factual 21 determination entitled to a presumption of correctness. 28 U.S.C. § 2254(e)(1); Robinson 22 v. Borg, 918 F.2d 1387, 1390 (9th Cir. 1990) (“The state court’s determination of what is 23 said during an interrogation constitutes a factual finding entitled to a presumption of 24 correctness . . . .”). Ellison has not rebutted that presumption of correctness with the 25 required “clear and convincing” evidence. Marshall v. Lonberger, 459 U.S. 422, 434, 26 (1983) (“[F]ederal habeas courts [have] no license to redetermine credibility of witnesses 27 whose demeanor has been observed by the state trial court, but not by them.”); 28 Sophanthavong v. Palmateer, 378 F.3d 859, 867 (9th Cir. 2004) (“Here, because the state

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1 court conducted an evidentiary hearing in which [petitioner] testified, we are required to 2 defer to the state court’s credibility findings.”) (citations omitted). 3 Next, relying on Davis and State v. Eastlack, 883 P.2d 999 (Ariz. 1994), the Arizona 4 Supreme Court held the detectives were not required to stop questioning Ellison after his 5 equivocal statement “I think I might want a lawyer” and were not required to limit their 6 questions to clarifying Ellison’s request for counsel. Ellison, 140 P.3d at 910. The court 7 thus concluded that the detective’s continued questioning of Ellison was proper. Id. 8 The Arizona Supreme Court reasonably applied Davis in finding that Ellison did 9 not clearly and unambiguously invoke his right to counsel. In Davis, the Supreme Court 10 held that the defendant’s statement “maybe I should talk to a lawyer” was not an 11 unambiguous request for counsel. 512 U.S. at 459. Likewise, in United States v. Younger, 12 398 F.3d 1179 (9th Cir. 2005), the Ninth Circuit concluded that a defendant’s statement 13 “But, excuse me, if I am right, I can have a lawyer present through all this, right?” did not 14 constitute an unambiguous invocation of right to counsel. Id. at 1187. And again, in Clark 15 v. Murphy, 331 F.3d 1062 (9th Cir. 2003), the Ninth Circuit held that the Arizona Supreme 16 Court was not objectively unreasonable in its conclusion that a statement similar to (and 17 arguably less ambiguous than) Ellison’s—“I think I would like to talk to a lawyer”—was 18 not an unequivocal request for counsel. Id. at 1069-70. See also Diaz v. Senkowski, 76 19 F.3d 61, 64-65 & n.1 (2d Cir. 1996) (“I think I want a lawyer” did not “effectively assert 20 [defendant’s] right to counsel”); United States v. Mullikin, 534 F. Supp. 2d 734, 743 (E.D. 21 Ky. 2006) (“Defendant did not invoke his right to counsel because the statement was 22 equivocal and ambiguous. The credible testimony of Detective Stowers shows that 23 Defendant stated, ‘I think I might need a lawyer’ . . . .”). 24 In an attempt to establish that he unequivocally invoked his right to counsel, Ellison 25 cites an unpublished Ninth Circuit decision and several state-court cases. However, such 26 decisions do not constitute clearly established federal law for AEPDA purposes. At any 27 rate, the invocations offered by the defendants in Ellison’s cited cases—United States v. 28 Escobedo-Gomez, 715 F. App’x 743, 744 (9th Cir. 2018) (“I guess I’ll, I’ll wait for the

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1 attorney.”); State v. Jackson, 497 S.E. 2d 409, 412 (N.C. 1998) (“I think I need a lawyer 2 present.”); McDaniel v. Commonwealth, 518 S.E. 2d 851, 852 (Va. 1999) (“I think I would 3 rather have an attorney here to speak for me.”)—are distinguishable from Ellison’s 4 statement “I think I might want a lawyer” because they lacked the modifier “might.” 5 Arnold, 421 F.3d at 865 (“[W]here a suspect’s request for counsel is qualified with words 6 such as ‘maybe’ or ‘might,’ we have concluded that the suspect did not unambiguously 7 invoke his right to counsel.”).8 8 Ellison also contends that the contemporaneous responses of Detectives Watson and 9 Auld demonstrated that they understood him to be asking for a lawyer. (Doc. 21 at 52-53.) 10 This assertion is belied by the record. The testimony at the voluntariness hearing showed 11 that, following Ellison’s statement, the detectives attempted to clarify whether he wanted 12 an attorney or wanted to speak with them. The testimony did not show, as Ellison contends, 13 that “it became clear that Ellison declined to talk without an attorney and in fact remained 14 silent.” (Doc. 21 at 53.) To the contrary, Detective Watson testified that he told Ellison 15 that Finch had been arrested and Ellison responded, “You’ve arrested Richard?” (RT 16 7/20/99 at 14.) Ellison also asked the detectives what he was being charged with and if it 17 would affect his parole.9 (Id. at 15, 69.) The detectives continued to speak with Ellison 18 8 In his reply, Ellison cites cases in which courts assumed or accepted the following 19 statements to be unequivocal requests for counsel: “I think I should call my lawyer,” 20 Cannady v. Dugger, 931 F.2d 752, 754 (11th Cir. 1991); “I think I should call an attorney,” Shedelbower v. Estelle, 885 F.2d 570, 571 (9th Cir. 1989); and “I think I want to talk to a 21 lawyer,” United States v. Perkins, 608 F.2d 1064, 1066 (5th Cir. 1979). But again, these 22 cases do not qualify as clearly established law under AEDPA and they are factually distinguishable because the invocations at issue lacked the ambiguity the word “might” 23 injected into Ellison’s statement. Arnold, 421 F.3d at 865. Also, unlike Detectives Watson 24 and Auld, the officers in those cases responded to the statements in ways that indicated they understood the defendant was requesting counsel. Cannady, 931 F.2d at 755 (officer 25 “pushed phone toward Cannady and waited for him to make the call”); Shedelbower, 885 26 F.2d at 571-72 (officer told defendant he would have to call a private attorney or wait until the next morning for appointment of a public defender); Perkins, 608 F.2d at 1066 (officer 27 handed Perkins the Yellow Pages). 9 28 Citing Oregon v. Bradshaw, 462 U.S. 1039 (1983), Respondents contend that even if Ellison unambiguously invoked his right to counsel, he waived that right when he

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1 about whether he wanted a lawyer but Ellison never provided a clear answer. (Id.) Thus, 2 contrary to Ellison’s argument, the actions of Detectives Watson and Auld were consistent 3 with a belief that Ellison had not unequivocally invoked his right to counsel. 4 Finally, Ellison argues that his waiver of his right to counsel could not be valid given 5 Detective Watson’s explanation of the right to remain silent: “if I ask you something too 6 personal about your sex life, you don’t have to answer it just because I’m a cop.” (Doc. 21 7 at 54.) This argument is unavailing. “Miranda prescribed the following four now-familiar 8 warnings: ‘A suspect must be warned prior to any questioning [1] that he has the right to 9 remain silent, [2] that anything he says can be used against him in a court of law, [3] that 10 he has the right to the presence of an attorney, and [4] that if he cannot afford an attorney 11 one will be appointed for him prior to any questioning if he so desires.’” Florida. v. Powell, 12 559 U.S. 50, 59-60 (2010) (cleaned up). Although these four warnings are “invariable,” 13 the Supreme Court “has not dictated the words in which the essential information must be 14 conveyed.” Id. at 60. “Reviewing courts therefore need not examine Miranda warnings 15 as if construing a will or defining the terms of an easement. The inquiry is simply whether 16 the warnings reasonably convey to a suspect his rights as required by Miranda.” 17 Duckworth v. Eagan, 492 U.S. 195, 203 (1989) (cleaned up). 18 The totality of the circumstances demonstrates that Detective Watson adequately 19 informed Ellison of his right to remain silent. Watson recited the four Miranda warnings, 20 informing Ellison he had “the right to remain silent” and that “[a]nything you say can and 21 will be used against you in a court of law.” (RT 7/20/99 at 33.) Given this clear language, 22 and Ellison’s familiarity with the Miranda advisory—he testified that it had been read to 23 him before and that he understood his rights (RT 11/23/99 at 28)—Detective Watson’s 24 reinitiated conversation with the detectives. (Doc. 30 at 36-38.) The Court disagrees. If 25 Ellison had unequivocally invoked his right to counsel, the detectives would have been 26 required under Miranda and Edwards to cease their interrogation (which they did not do). Anderson v. Terhune, 516 F.3d 781, 791 (9th Cir. 2008) (“[A]ll questioning must 27 immediately cease once the right to remain silent is invoked, and . . . any subsequent 28 statements by the defendant in response to continued interrogation cannot be used to find a waiver or cast ambiguity on the earlier invocation.”).

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1 elaboration on “the right to refuse to answer questions at any time if you decide to do so” 2 (RT 7/10/99 at 33) did not prevent the warnings from reasonably conveying Ellison’s 3 Miranda rights. Duckworth, 492 U.S. at 203-05; Prysock, 453 U.S. at 361.10 4 b. Voluntariness 5 The Arizona Supreme Court denied Ellison’s claim that his confession was 6 involuntary due to the promises of leniency offered by the detectives. Ellison, 140 P.3d at 7 910-11. The court concluded that Judge Moon did not abuse his discretion in finding the 8 confession voluntary. Id. The court first noted that, “[t]o be admissible, a statement must 9 be voluntary, not obtained by coercion or improper inducement.” Id. at 910 (citing Haynes 10 v. Washington, 373 U.S. 503, 513-14 (1963)). “Promises of benefits or leniency, whether 11 direct or implied, even if only slight in value, are impermissibly coercive.” Id. (quotation 12 omitted). The court explained that although “[i]n Arizona, a suspect’s statement is 13 presumptively involuntary,” “[a] prima facie case for admission of a confession is made 14 when the officer testifies that the confession was obtained without threat, coercion or 15 promises of immunity or a lesser penalty.” Id. (quotation omitted). The court then noted 16 that Detectives Watson and Auld “testified that they never asked Ellison to testify against 17 Finch and never suggested any charges would be dropped if he testified; nor did they 18 threaten or otherwise intimidate him.” Id. at 911. The court explained that Ellison’s claim 19 that his confession was induced by promises of leniency “presume[d] the truth of his 20 version of events, despite contrary testimony by the detectives.” Id. The court continued: 21 10 22 Ellison argues that Arizona Supreme Court failed to rule on a portion of his Miranda claim—namely, the allegation that his right to remain silent was violated as well as his 23 right to an attorney. He thus contends that this Court must review that portion of his claim 24 de novo. (Doc. 21 at 55 n.11.) But even assuming the de novo standard applies, this claim fails on the merits. Like the right to counsel, the right to remain silent must be invoked 25 unambiguously. Berghuis v. Thompkins, 560 U.S. 370, 381-82 (2010). If a suspect makes 26 a statement concerning his right to silence “‘that is ambiguous or equivocal’ or makes no statement, the police are not required to end the interrogation, or ask questions to clarify 27 whether the accused wants to invoke his or her Miranda rights.” Id. (citation omitted). 28 Here, Ellison made no statement, let alone an unambiguous one, concerning his right to remain silent.

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1 Judge Moon, however, concluded that Detective Watson’s testimony was 2 more credible and determined the evidence did not show any express or implied promises of leniency. Moreover, it does not appear that Ellison’s 3 will was overborne by any promises of leniency. Although he agreed to talk with the detectives, he maintained that Finch was the ringleader and that he 4 acted only under duress. Ellison also admitted being familiar with, and 5 understanding, his Miranda rights. 6 Id. This decision was not contrary to or an unreasonable application of clearly established 7 federal law, nor was it based on an unreasonable determination of the facts. 8 A statement is involuntary if it is “extracted by any sort of threats or violence, or 9 obtained by any direct or implied promises, however slight, or by the exertion of any 10 improper influence.” Hutto v. Ross, 429 U.S. 28, 30 (1976) (cleaned up). When 11 considering whether a confession is voluntary, “[t]he test is whether, considering the 12 totality of the circumstances, the government obtained the statement by physical or 13 psychological coercion or by improper inducement so that the suspect’s will was 14 overborne.” United States v. Guerrero, 847 F.2d 1363, 1365 (9th Cir. 1988). “As long as 15 the decision is a product of the suspect’s own balancing of competing considerations, the 16 confession is voluntary.” United States v. Miller, 984 F.2d 1028, 1031 (9th Cir. 1993) 17 (cleaned up). 18 Ellison’s involuntariness claim fails because, as the state courts found, the detectives 19 did not make promises of leniency, express or implied, to Ellison. Instead, it was Ellison 20 who volunteered to testify against Finch. This factual finding is entitled to a presumption 21 of correctness. 28 U.S.C. § 2254(e)(1); Robinson, 918 F.2d at 1390; Lonberger, 459 U.S. 22 at 434; Sophanthavong, 378 F.3d at 867. Ellison has not rebutted that presumption with 23 clear and convincing evidence. Although Watson used the word “deal” in the second, 24 recorded interview, he explained (and Judge Moon accepted) that he was referring not to 25 leniency but to his statements to Ellison in the first interview about being honest and not 26 playing games. 27 At any rate, the conduct alleged by Ellison would not have rendered his confession 28 involuntary. “[C]oercive police activity is a necessary predicate to the finding that a

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1 confession is not ‘voluntary’ within the meaning of the Due Process Clause of the 2 Fourteenth Amendment.” Colorado v. Connelly, 479 U.S. 157, 167 (1986). Significantly, 3 although Ellison argues that “[Detective] Watson’s promise to talk to the county attorney 4 and secure reduced charges rendered Ellison’s statements involuntary” (Doc. 21 at 58), the 5 Ninth Circuit has clarified that “in most circumstances, speculation that cooperation will 6 benefit the defendant or even promises to recommend leniency are not sufficiently 7 compelling to overbear a defendant’s will.” United States v. Harrison, 34 F.3d 886, 891 8 (9th Cir. 1994) (emphasis added). See also Williams v. Woodford, 384 F.3d 567, 594 (9th 9 Cir. 2004) (“An interrogating agent’s suggestion that a suspect’s cooperation with the 10 government will have a positive effect on the suspect’s possible sentence is not an improper 11 inducement that causes the suspect’s later testimony for the government to be 12 involuntary.”) (citing Guerrero, 847 F.2d at 1366). 13 B. Claim 2 14 In Claim 2, Ellison alleges that his convictions and sentences must be vacated 15 because the trial judge was “prejudiced and biased” in violation of the Fifth, Sixth, Eighth, 16 and Fourteenth Amendments. (Doc. 21 at 59-65.) The Arizona Supreme Court rejected 17 this claim on direct appeal. Ellison, 140 P.3d at 911-12. 18 1. Background 19 During a pretrial conference, Ellison’s counsel questioned Judge Moon about his 20 impartiality in light of newspaper accounts of the sentencing proceedings in Finch’s trial. 21 (RT 3/30/01 at 8 [“[W]hat is attributed to you are statements to the effect that you believe 22 my client [Ellison] to be the more culpable of the two, you believed that Finch was afraid 23 of my client at the time he did what he did. And this gives [us] some pause to consider 24 Your Honor’s impartiality as is relates to this particular defendant . . . .”].) Counsel then 25 asked Judge Moon to recuse himself. (Id.) The judge responded that he had made specific 26 findings in Finch’s case based on the evidence presented at that trial but invited defense 27 counsel to file a motion for recusal. (Id. at 12-14 [“I don’t feel that I cannot be fair and 28 impartial in the rest of the proceedings against Mr. Ellison. But, you know, you’re free to

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1 file a motion, ask another judge to make that decision.”].) Counsel did not file such a 2 motion. 3 In denying this claim on direct appeal, the Arizona Supreme Court first noted that 4 “[j]udges are presumed to be impartial, and the party moving for change of judge must 5 prove a judge’s bias or prejudice by a preponderance of the evidence.” Ellison, 140 P.3d 6 at 911 (citation omitted). The court explained that “there is no per se disqualification of a 7 sentencing trial judge who presides over a codefendant’s trial,” nor is “bias or prejudice 8 inherent in presiding over a defendant’s subsequent proceeding, even though the judge has 9 heard unfavorable remarks about the defendant in prior proceedings, particularly when the 10 judge states he will keep an open mind.” Id. at 912 (citation omitted). Citing Liteky v. 11 United States, 510 U.S. 540 (1994), the court emphasized that only rarely do judicial 12 rulings or opinions formed by a judge during current or prior proceedings form the grounds 13 for a bias or partiality motion. Id. 14 Against this backdrop, the court rejected Ellison’s argument “that the sentencing of 15 Finch reflect[ed] that Judge Moon was biased against Ellison.” Id. The court noted that 16 “Judge Moon . . . emphasized that his decisions in Finch’s case were based on the evidence 17 presented at that trial. He also promised to make his decisions in Ellison’s case based 18 solely on the evidence produced during Ellison’s trial.” Id. Finally, the court noted that 19 “Judge Moon did not err in any of the challenged evidentiary rulings . . . and ruled in 20 Ellison’s favor to exclude several hearsay statements.” (Id.) The court therefore concluded 21 that Ellison “failed to show bias or prejudice that would require Judge Moon’s 22 disqualification . . . .” (Id.) 23 2. Analysis 24 The Arizona Supreme Court’s decision was not contrary to or an unreasonable 25 application of clearly established federal law, nor was it based on an unreasonable 26 determination of the facts. The Due Process Clause guarantees a criminal defendant the 27 right to a fair and impartial judge. In re Murchison, 349 U.S. 133, 136 (1955); Rhoades v. 28 Henry, 598 F.3d 511, 519 (9th Cir. 2010) (“Due process requires that trials be conducted

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1 free of actual bias as well as the appearance of bias.”). “To succeed on a judicial bias claim, 2 however, the petitioner must ‘overcome a presumption of honesty and integrity in those 3 serving as adjudicators.’” Larson v. Palmateer, 515 F.3d 1057, 1067 (9th Cir. 2008) 4 (citation omitted). 5 The Ninth Circuit has “repeatedly concluded that a state court’s finding that the trial 6 judge was impartial . . . is a finding of historical fact that is entitled to a presumption of 7 correctness under 28 U.S.C. § 2254(d).” Sivak v. Hardison, 658 F.3d 898, 924 (9th Cir. 8 2011) (citation omitted). This Court, applying the “twin presumptions,” id., of deference 9 to the state courts’ determination that Judge Moon was not biased and the presumption of 10 judicial integrity, concludes that Ellison’s judicial bias claim is meritless. 11 First, the fact that Judge Moon presided over Finch’s trial does not support a finding 12 of bias. In Paradis v. Arave, 20 F.3d 950 (9th Cir. 1994), the Ninth Circuit found no bias 13 where the judge presided over the co-defendant’s trial and sentenced the co-defendant to 14 death. Id. at 958. The court rejected the “mistaken notion that a trial judge’s exposure to 15 evidence, standing alone, demonstrated bias.” Id. See also United States v. Monaco, 852 16 F.2d 1143, 1147 (9th Cir. 1988) (“[K]nowledge obtained from judicial proceedings 17 involving a co-defendant does not require recusal.”). 18 Next, Judge Moon’s comments about the evidence or about Ellison are insufficient 19 to support a finding a bias. In Liteky, the Supreme Court explained that a judge’s conduct 20 at trial may be “characterized as bias or prejudice” only if “it is so extreme as to display 21 clear inability to render fair judgment” or “display[s] a deep-seated favoritism or 22 antagonism that would make fair judgment impossible.” 510 U.S. at 551, 555. “[J]udicial 23 remarks during the course of a trial that are critical or disapproving of, or even hostile to, 24 counsel, the parties, or their cases” do not establish bias unless “they reveal such a high 25 degree of favoritism or antagonism as to make fair judgment impossible.” Id. at 555. That 26 standard was not met here. 27 Moreover, none of Judge Moon’s remarks “emanate[d] from an extrajudicial 28 source.” Monaco, 852 F.2d at 1147 (“[T]he comments made by the judge do not

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1 demonstrate pervasive bias or prejudice. These statements simply reflect that the judge 2 was appropriately outraged at the enormity of the crime that had taken place. . . .”). “In 3 the absence of any evidence of some extrajudicial source of bias or partiality, neither 4 adverse rulings nor impatient remarks are generally sufficient to overcome the presumption 5 of judicial integrity.” Larson, 515 F.3d at 1067. See also Liteky, 510 U.S. at 555 6 (“[O]pinions formed by the judge on the basis of facts introduced or events occurring in 7 the course of the current proceedings, or of prior proceedings, do not constitute a basis for 8 a bias or partiality motion unless they display a deep-seated favoritism or antagonism that 9 would make fair judgment impossible.”). 10 Finally, as the Arizona Supreme Court noted, “judicial rulings alone almost never 11 constitute [a] valid basis for a bias or partiality recusal motion.” Ellison, 140 P.3d at 912 12 (quoting Liteky, 510 U.S. at 555). As discussed below, there is nothing in the trial court’s 13 rulings that overcomes the presumption of impartiality. 14 Respondents correctly note that Ellison did not allege actual bias in his habeas 15 petition. (Doc. 30 at 43.) They then cite Crater v. Galaza, 491 F.3d 1119 (9th Cir. 2007), 16 in which the Ninth Circuit observed that “Supreme Court precedent reveals only three 17 circumstances in which an appearance of bias—as opposed to evidence of actual bias— 18 necessitates recusal.” Id. at 1131. According to Crater, due process requires recusal when 19 (1) a judge has a pecuniary interest in the outcome of the litigation, Tumey v. Ohio, 273 20 U.S. 510, 523 (1927); (2) a judge is “embroiled in a running, bitter controversy” with one 21 of the parties, Mayberry v. Pennsylvania, 400 U.S. 455, 465 (1970); and (3) a judge acts 22 as “part of the accusatory process,” Murchison, 349 U.S. at 137. Crater, 491 F.3d at 23 1131.11 In his reply, Ellison argues that actual bias was demonstrated because Judge Moon 24 25 11 Although “circuit precedent does not constitute ‘clearly established Federal law’” 26 and “cannot form the basis for habeas relief under AEDPA,” Parker v. Matthews, 567 U.S. 37, 48-49 (2012), a reviewing court may look to such precedent “to ascertain whether it 27 has already held that the particular point in issue is clearly established by Supreme Court 28 precedent.” Marshall v. Rodgers, 569 U.S. 58, 64 (2013). This distinction “is subtle, yet substantial.” Marshall, 569 U.S. at 64.

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1 prejudged his case and made disparaging remarks about him during the sentencing 2 proceedings in Finch’s case, using words like “ghastly” and “the devil” to describe 3 Ellison’s appearance.12 (Doc. 38 at 26-28.) Ellison also argues that an impermissible 4 appearance of bias existed because he and Judge Moon were involved in a “bitter 5 controversy.” (Id. at 28.) 6 These arguments are unpersuasive in light of Crater. There, during a pretrial 7 conference following the armed robbery and murder convictions of Crater’s co-defendant, 8 the judge met with Crater and the prosecutor to discuss a proposed plea deal. 491 F.3d at 9 1121. Although the prosecutor made the “major concession” of offering to drop the special 10 circumstance allegation, Crater was reluctant to accept the offer. Id. In attempting to 11 persuade Crater that the deal was in his best interest, the trial judge introduced himself and 12 stated: “I’m going to be trying your case. And I’m going to be sentencing you as well if 13 14 12 Ellison focuses on remarks Judge Moon made when addressing Finch’s argument 15 that he committed the murder of Mrs. Boucher under unusual substantial duress from Ellison—a mitigating circumstance conceded by the State and found by the court. (Doc. 16 43-1 at 20.) Ellison quotes Judge Moon (Doc. 21 at 62), but the cited passage omits 17 significant context surrounding the judge’s comments. Judge Moon first stated he didn’t “know how many people honestly in that situation could do other than what Mr. Finch 18 did.” (Doc. 43 at 41 [RT 2/20/01 at 41].) Judge Moon continued, however, that he didn’t 19 “know that many people who would ever have been in that situation in the first place.” (Id.) Judge Moon then offered the remarks which Ellison quotes, in part, to show bias: 20 The testimony about how ghastly Ellison looked and what terrible stories he 21 possessed, he looked that way before they ever got in the car together. He’s tatted up, he looks like a—you know, an Aryan Brotherhood member, if he 22 isn’t. And so this—it wasn’t a guy who was wearing some kind of religious 23 cloak and hood who suddenly ripped them off and said, “See, I’m really the devil.” He looked like the devil to begin with. And so why a guy would ever 24 go along with that is something that’s hard for me to understand. Hearing 25 some of the testimony about his upbringing makes it somewhat more understandable. But the duress issue is—is an important issue to me. And 26 there are others. 27 (Id. at 41-42.) When quoting this passage, Ellison omits the italicized portions, which 28 clarify that the judge’s comments about Ellison’s appearance were based on the evidence and were offered for the specific purpose of evaluating Finch’s mitigating evidence.

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1 you’re found guilty, which I expect will happen.” Id. at 1130. The judge continued: 2 Based upon what I know about this case—and I’m in a very unique position in this case, because I’ve already heard all of the witnesses, I know 3 everything that happened that night, and I have assessed everything that the 4 witnesses have said, and therefore, I know what they are going to say about you. And based upon what I’ve heard about this case, I’m real sure that 5 you’re going to be convicted of all of those robberies, that you’re going to be 6 convicted of shooting the first robbery victim. You’re going to be convicted of all of the attempted robberies, and you’re going to be found guilty of 7 murder in the first degree. I’m real sure all that’s going to happen. 8 .... 9 A jury is not going to like you. A jury is going to be frightened by what they hear from these witnesses occurring that night. . . . You have very little to 10 go on in this case. You might beat the special circumstance; I don’t think 11 you will. . . . And I, as the judge, am supposed to keep an open mind about what sentence to impose. . . . This much I can tell you, I would have no 12 discretion on first degree murder, none. . . . I can also tell you that most 13 judges looking at what happened that night would probably be inclined to impose consecutive penalties. . . . So most judges, I think, would throw the 14 book at you. 15 Id. at 1130-31. 16 Crater rejected the deal and moved to excuse the judge for bias. Id. at 1121. The 17 judge denied the motion. Id. Crater went to trial and was convicted on all counts and the 18 special circumstance. Id. On habeas review, the district court denied his claim of judicial 19 bias. Id. The Ninth Circuit affirmed, concluding that none of the three circumstances 20 requiring recusal based on an appearance of bias applied to Crater’s case. Id. at 1131-32. 21 The court noted that the judge did not become “‘personally embroiled’ in a controversy 22 with Crater, and Crater directed no ‘highly personal aspersions’ against him.” Id. at 1132 23 (citation omitted). 24 Here too, where the trial judge at most signaled his opinion of the defendant’s guilt 25 and predicted the jury’s negative reaction to the defendant, Ellison’s claim of judicial bias 26 fails. Like the judge’s comments in Crater, Judge Moon’s comments about Ellison were 27 “founded upon his legitimate knowledge of the proceedings and outcome in [the co- 28 defendant’s] case.” Id. at 1132. They “offer no evidence to overcome the presumption of

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1 [judicial] honesty and integrity.” Id. (cleaned up). 2 In his reply, Ellison argues that Judge Moon’s comments about him indicated there 3 was a “bitter controversy.” (Doc. 38 at 28.) This argument lacks merit. The concern in 4 Mayberry was the judge’s ability to remain fair while being personally insulted by the 5 defendant during the latter’s trial for contempt. 400 U.S. at 466. Judge Moon’s comments 6 were based on the evidence presented at Finch’s trial, just as the comments of the judge in 7 Crater were based on evidence presented in the trial of Crater’s co-defendant. 8 Ellison also cites Porter v. Singletary, 49 F.3d 1483 (11th Cir. 1995) (per curiam), 9 and Franklin v. McCaughtry, 398 F.3d 955 (7th Cir. 2005). (Doc. 38 at 26.) But his claim 10 “pales in comparison” to the evidence of bias in those cases. Sivak, 658 F.3d at 925. In 11 Porter, the Eleventh Circuit remanded where there was “specific and ostensibly reliable 12 evidence that the [state trial] judge had a fixed predisposition to sentence this particular 13 defendant to death if he were convicted by the jury.” 49 F.3d at 1489. The court clerk 14 submitted a declaration stating that “before or during Porter’s trial,” the trial judge said that 15 “‘he would send Porter to the chair.’” Id. at 1487. In Franklin, the trial judge “took the 16 highly unusual step of filing a memorandum with the state court of appeals” in an unrelated 17 case in which he referred to Franklin’s case “as an example of the terrible things that 18 happen when indigent prisoners are released on bail pending their appeals.” Id. at 957. 19 The judge also spoke with the media about the Franklin case. Id. at 961. In finding 20 impermissible bias, the Seventh Circuit noted that, under Liteky, both the memorandum 21 and the judge’s contacts with the newspaper were “extrajudicial activities vis-à-vis 22 Franklin’s own case.” Id. Here, in contrast, there were no extra-judicial activities on Judge 23 Moon’s part, nor any evidence that he was predisposed to sentence Ellison to death. As 24 evidence that Judge Moon had prejudged Ellison’s punishment, Ellison cites comments the 25 judge made in granting a continuance of the trial date, to the effect that he was aware of 26 the aggravating factors proved in Finch’s case, which he explained could not be “disproved, 27 because they have more to do with the victims rather than the defendants or their conduct.” 28 (8/17/01 at 4.) But this was simply an accurate statement of the facts with respect to the

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1 aggravating factors of especial cruelty, multiple murders, and the age of the victims. Judge 2 Moon also acknowledged that he did not know “what kind of mitigation” Ellison had. (Id.) 3 Based on this record, there is no indication that Judge Moon had improperly prejudged 4 Ellison’s sentence. Thus, Ellison has failed to overcome the presumption of judicial 5 impartiality and the deference owed under AEDPA to the Arizona Supreme Court’s 6 decision rejecting this claim. 7 C. Claim 3 8 In Claim 3, Ellison alleges that the jury-selection process deprived him of an 9 impartial jury and a fair and reliable trial, in violation of the Fifth, Sixth, Eighth, and 10 Fourteenth Amendments. (Doc. 21 at 65-69.) This claim consists of two subclaims. In 11 Claim 3(A), Ellison alleges that “[d]eath qualification is unconstitutional.” (Id. at 65-68.) 12 In Claim 3(B), Ellison alleges that “[e]rroneously informing the jury that it is not 13 responsible for the death verdict relieves jurors of their burden to seriously consider the 14 facts that form the basis for a death sentence.” (Id. at 68-69.) Ellison further contends that 15 he raised both of these claims on direct appeal but the Arizona Supreme Court only 16 addressed the burden-shifting claim. (Id. at 67.) Respondents counter that Ellison did not 17 fairly present Claim 3(A) and therefore that subclaim is unexhausted and procedurally 18 defaulted. (Doc. 30 at 46.) 19 Respondents have the better of this argument. The heading of Claim III of Ellison’s 20 opening brief to the Arizona Supreme Court was: “Selection of a death qualified jury 21 deprived Appellant of a fair and impartial jury, a fair trial and due process under the Sixth, 22 Eighth, and Fourteenth Amendments.” (Opening Br. at 34.) Ellison’s argument, however, 23 focused only on the burden-shifting claim raised in Claim 3(B) of his habeas petition. (Id. 24 at 34-36.) The Arizona Supreme Court addressed and denied that claim on the merits. 25 Ellison, 140 P.3d at 912. 26 The Ninth Circuit has explained that “[g]eneral appeals to broad constitutional 27 principles, such as due process, equal protection, and the right to a fair trial, do not establish 28 exhaustion.” Castillo v. McFadden, 399 F.3d 993, 1002 (9th Cir. 2005) (cleaned up).

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1 “Exhaustion requires more than drive-by citation, detached from any articulation of an 2 underlying federal legal theory.” Id. at 1003. See also Fields v. Waddington, 401 F.3d 3 1018, 1021 (9th Cir. 2005) (“Nor is a federal claim exhausted by a petitioner’s mention, in 4 passing, of a broad constitutional concept, such as due process.”); Shumway v. Payne, 223 5 F.3d 982, 987 (9th Cir. 2000) (“Shumway’s naked reference to ‘due process’ . . . was 6 insufficient to state a federal claim. ‘[I]t is not enough to make a general appeal to a 7 constitutional guarantee as broad as due process to present the ‘substance’ of such a claim 8 to a state court.’”) (citation omitted). 9 Applying these standards, Ellison failed to fairly present Claim 3(A) in state court. 10 His “drive-by” citations of the Sixth, Eighth, and Fourteenth Amendments in the heading 11 of Claim III were not sufficient to alert the Arizona Supreme Court that he was raising a 12 claim that death-qualification of capital juries resulted in a federal constitutional violation. 13 As Respondents note, Ellison’s opening brief cited Caldwell v. Mississippi, 472 U.S. 320 14 (1985), which is relevant only to his burden-shifting claim and not to the allegation that the 15 death qualification of a jury violates the United States Constitution. “Citation of irrelevant 16 federal or state cases does not provide a state court with a fair opportunity to apply 17 controlling legal principles to the facts bearing upon his constitutional claim.” Castillo, 18 399 F.3d at 1001 (additional quotations omitted). 19 At any rate, in addition to being unexhausted and procedurally defaulted, Claim 20 3(A) is meritless. It is well established that death-qualification does not violate a 21 defendant’s right to a fair and impartial jury. Lockhart v. McCree, 476 U.S. 162, 178 22 (1986); Wainwright v. Witt, 469 U.S. 412, 424 (1985); Ceja v. Stewart, 97 F.3d 1246, 1253 23 (9th Cir. 1996); Atwood v. Schriro, 489 F. Supp. 2d 982, 1047 (D. Ariz. 2007) (“There is 24 no per se rule that death-qualification of a guilt-phase jury is a constitutional violation. 25 Thus, the decision of the Arizona Supreme Court is not an unreasonable application of 26 controlling federal law.”). 27 Next, the Arizona Supreme Court’s rejection of Claim 3(B) was not contrary to or 28 an unreasonable application of clearly established federal law. Ellison had argued, as he

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1 argues here, that his guilt-phase jury was “unconstitutionally relieved of the gravity of its 2 decision because potential jurors were told, in a questionnaire and instructions, they would 3 have no role in determining punishment and should not consider the likely punishment.” 4 Ellison, 140 P.3d at 912. In rejecting that argument, the Arizona Supreme Court noted 5 that, under Caldwell, “it is constitutionally impermissible to rest a death sentence on a 6 determination made by a sentencer who has been led to believe that the responsibility for 7 determining the appropriateness of the defendant’s death rests elsewhere.” Id. (quoting 8 Caldwell, 472 U.S. at 328-29). The court explained that Ellison’s argument failed 9 “because, when his jury was selected, juries were not responsible for deciding whether a 10 death sentence is appropriate.” Id. 11 In January 2002, when Ellison was convicted, Arizona law provided that the trial 12 judge, not the jury, was responsible for sentencing decisions. Caldwell held that a death 13 sentence was invalid where the “sentencing jury” was misled about its responsibility for 14 determining the appropriateness of a death sentence. 472 U.S. at 323. Because Ellison’s 15 guilt-phase jury was not a sentencing jury, it was not misled about its responsibilities. At a 16 minimum, the Arizona Supreme Court’s interpretation of Caldwell as compelling this 17 outcome was not contrary to or an unreasonable application of clearly established federal 18 law. 19 D. Claim 4 20 In Claim 4, Ellison alleges that the trial court’s evidentiary rulings regarding Finch’s 21 statements to Brad Howe deprived him of his right to confront adverse witnesses and to 22 reliable and fair proceedings, in violation of the Sixth, Eighth, and Fourteenth 23 Amendments. (Doc. 21 at 69-73.) 24 1. Relevant Background 25 Before trial, Ellison asked the trial court to rule on the admissibility of certain 26 statements that Finch made to Howe after the murders. Ellison’s theory was that Finch’s 27 statements to Howe while the men were at Red’s Bar (in which Finch implicated himself 28 in the murders) were admissible as statements against interest but that Finch’s later

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1 statements to Howe after they left Red’s Bar (in which Finch also implicated Ellison in the 2 murders) were inadmissible. Ellison, 140 P.3d at 913. To evaluate these claims, the trial 3 judge held an evidentiary hearing. Id. 4 During the hearing, Howe testified that while he and Finch were drinking at a bar, 5 Finch “started crying, and he said that he had killed two people last night.” (RT 3/14/00 at 6 15.) Howe testified that Finch also made additional statements after they left the bar and 7 were driving home. For example, Finch told Howe that he had gone with a person named 8 “Slinger, Charles Ellison to rob some people.” (Id. at 17.) Finch also told Howe that he 9 believed Ellison was an “enforcer” for the Aryan Brotherhood. (Id. at 30-31.) Finch also 10 told Howe that he believed he and Ellison “were going to threaten or scare somebody, not 11 to kill anyone.” (Id. at 31, 32.) According to Finch, Ellison pointed a gun at him and told 12 him, “If she [Mrs. Boucher] doesn’t stop breathing, I’m going to put a bullet in your head.” 13 (Id. at 32). Finch also told Howe that Ellison held a pillow over Mr. Boucher’s head. (Id. 14 at 33.) Finch further told Howe that when Ellison realized Mr. Boucher wasn’t dead, 15 Ellison pointed the gun at Finch and forced him to “finish off” the victim. (Id. at 34). Finch 16 told Howe that he had “looked into these people’s eyes and watched them die.” (Id. at 23.) 17 Finch also told Howe that Ellison removed property from the victims’ home. (Id. at 33- 18 34.) Finally, Howe stated that when he and Finch arrived home from the bar, Finch showed 19 Howe some of the items stolen from the Bouchers. (Id. at 25.) 20 Judge Moon ruled that Finch’s admission at the bar that he “had killed two people 21 last night” was admissible as a statement against penal interest under Arizona Rule of 22 Evidence 804(b)(3). (Id. at 50.) However, Judge Moon also ruled that if Ellison sought to 23 admit that statement, the State would then be permitted to admit “anything inconsistent” in 24 Finch’s other statements to Howe. (Id.) Based on these rulings, Ellison chose not to elicit 25 testimony at trial from Howe about Finch’s specific statements. 26 On direct appeal, Ellison argued that “the trial court abused its discretion when it 27 conditioned [Ellison’s] use of Finch’s statements to Brad Howe admitting to murdering 28 both victims upon the State being able to introduce all of Finch’s hearsay statements.”

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1 (Opening Brief at 36.) Among other things, Ellison argued that “[a]lthough the trial court 2 was technically correct in determining that Finch’s statement that he killed two people 3 could be impeached with inconsistent statements under Rule 806, the court erred by 4 neglecting to consider whether the admission of the remainder of Finch’s statements would 5 violate the Confrontation Clause of the Sixth Amendment.” (Id. at 37.) 6 The Arizona Supreme Court rejected this claim, noting that “when a defendant seeks 7 to admit portions of his accomplice’s recorded statements, the trial judge may, under 8 Arizona Rule of Evidence 106, admit the remaining statements if necessary to avoid 9 confusing the jury.” Ellison, 140 P.3d at 913. The court held that in such circumstances, 10 “the Confrontation Clause is not even implicated.” Id. (citation omitted). The court stated 11 that the “rule of completeness” addresses “the inequity of allowing a defendant to admit 12 the beneficial part of a statement while using the Confrontation Clause to prevent the State 13 from offering the remainder of the statement in order to avoid misleading the jury.” Id. at 14 914 n.9 (citation omitted). The court thus concluded that Judge Moon “did not err in ruling 15 that if Ellison offered part of Finch’s hearsay statements, the State could question Howe 16 with the remainder of the conversation.” Id. at 913-14. 17 2. Analysis 18 Although Ellison’s briefing regarding Claim 4 is not a model of clarity, the Court 19 construes that briefing as potentially raising three distinct (if interrelated) challenges. 20 First, Ellison argues that the trial court’s evidentiary ruling prevented him from 21 “admit[ting] Finch’s critical admission that [Finch] killed both victims.” (Doc. 21 at 71.) 22 In his reply, Ellison elaborates that the ruling “violated [his] right to a fundamentally fair 23 trial at which he could present a defense.” (Doc. 38 at 33.) Ellison continues: “The state 24 courts could not reasonably have forced [him] to choose between his right to present a 25 defense and his right, as then currently understood, to confront witnesses against him.” (Id. 26 at 34-35.) Respondents interpret these arguments as raising a “due process” claim 27 premised on the theory that “the trial court’s evidentiary rulings regarding Finch’s 28 statements to Howe prevented him from presenting a complete defense and admitting

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1 relevant evidence.” (Doc. 30 at 51-52.) 2 To the extent Respondents’ conception of Ellison’s claim is correct—that is, to the 3 extent Ellison is raising a Fourteenth Amendment due process claim that is distinct from a 4 Sixth Amendment confrontation claim—that claim is unavailing.13 Although a defendant 5 generally has a due process right to present a complete defense, Chambers v. Mississippi, 6 410 U.S. 284 (1973), “[a] defendant’s right to present relevant evidence is not unlimited, 7 but rather is subject to reasonable restrictions. A defendant’s interest in presenting such 8 evidence may thus bow to accommodate other legitimate interests in the criminal trial 9 process. As a result, state and federal rulemakers have broad latitude under the 10 Constitution to establish rules excluding evidence from criminal trials.” United States v. 11 Scheffer, 523 U.S. 303, 308 (1998) (cleaned up). See also Moses v. Payne, 555 F.3d 742, 12 757-59 (9th Cir. 2009). “Only rarely” has the Supreme Court “held that the right to present 13 a complete defense was violated by the exclusion of defense evidence under a state rule of 14 evidence.” Nevada v. Jackson, 569 U.S. 505, 509 (2013) (per curiam). This case does not 15 resemble those limited circumstances. Indeed, the trial court did not bar Ellison from 16 introducing Finch’s admissions regarding Finch’s involvement in the murders—it simply 17 held that the introduction of such admissions might open the door to the admission of 18 Finch’s other admissions on the topic (which implicated Ellison), and Ellison in turn 19 decided not to elicit any testimony regarding Finch’s admissions. 20 13 Ellison raised only a Sixth Amendment challenge in relation to the Finch/Howe 21 testimony on direct appeal (Opening Brief at 34-38) and the Arizona Supreme Court only 22 addressed a Sixth Amendment challenge in its decision affirming Ellison’s convictions and sentences. Ellison, 140 P.3d at 912-14. Thus, it might be argued that Ellison has 23 procedurally defaulted any Fourteenth Amendment/due process challenge. However, 24 Respondents have not raised a claim of procedural default as to that particular issue. (Doc. 38 at 32 [“Respondents do not interpose a procedural defense to this claim insofar as it 25 rests on the Sixth and Fourteenth Amendments.”].) Thus, the Court declines to consider 26 whether this particular claim is procedurally defaulted. Franklin v. Johnson, 290 F.3d 1223, 1233 (9th Cir. 2002) (“[T]he state provides no explanation whatsoever for its failure 27 to raise a procedural default argument in the district court . . . . Consequently, we decline 28 to reach the state’s argument that Franklin did not adequately raise in the state courts the issue he presented to the district court and argues here as well.”).

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1 Ellison’s final two challenges are both premised on the Sixth Amendment’s 2 Confrontation Clause. As explained below, the Arizona Supreme Court’s rejection of 3 Ellison’s Confrontation Clause challenge was not contrary to or an unreasonable 4 application of clearly established federal law, nor was it based on an unreasonable 5 determination of the facts.14 6 Ellison’s first Sixth Amendment challenge is premised on the theory that the trial 7 court’s evidentiary rulings violated Ohio v. Roberts, 448 U.S. 56 (1980), and Williamson 8 v. United States, 512 U.S. 594 (1994). (Doc. 21 at 71-72.) More specifically, Ellison 9 contends that although Finch’s initial statement to Howe at the bar—that Finch had killed 10 two people—was admissible because it was self-inculpatory and accompanied by adequate 11 indicia of reliability, Finch’s subsequent statements to Howe were not reliable—and thus 12 inadmissible under Roberts, which holds that statements lacking “indicia of reliability . . . 13 [cannot be] admitted without violating [a defendant’s] confrontation rights”—because they 14 “shifted blame to Ellison” and were only “collateral to Finch’s inculpatory statements.” 15 (Id.) 16 This argument is unavailing. It is true that, in Williamson, the Supreme Court held 17 that “[t]he fact that a person is making a broadly self-inculpatory confession does not make 18 more credible the confession’s non-self-inculpatory parts.” 512 U.S. at 599. See also 19 United States v. Ebron, 683 F.3d 105, 133 (5th Cir. 2012) (“In Williamson, the Supreme 20 21 14 Although the Arizona Supreme Court did not provide the same reasoning for 22 rejecting Ellison’s Confrontation Clause challenge that is discussed below, this is irrelevant for purposes of the AEDPA standard of review. Franklin, 290 F.3d at 1233 (“Under 23 AEDPA, a petition for habeas corpus challenging a state conviction may be granted only 24 if the state court’s decision is contrary to, or involves an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States 25 . . . . If—as we ultimately conclude was the case here—the state court reached the correct 26 result with respect to petitioner’s claim of constitutional violation (even if on erroneous reasoning), that is the end of our inquiry.”) (citation and internal quotation marks omitted); 27 Sheppard v. Davis, 967 F.3d 458, 467 n.5 (5th Cir. 2020) (“[T]he position . . . held by most 28 of the courts of appeals . . . [is] that a habeas court must defer to a state court’s ultimate ruling rather than to its specific reasoning.”) (citations omitted).

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1 Court issued a fractured opinion in which it . . . held that ‘the most faithful reading of Rule 2 804(b)(3) is that it does not allow admission of non-self-inculpatory statements, even if 3 they are made within a broader narrative that is generally self-inculpatory.’”) (citation 4 omitted). However, there are obvious factual differences between this case and 5 Williamson. There, the reason for the Court’s finding that the declarant’s statements were 6 unreliable and inadmissible was that they were made to DEA agents after the declarant was 7 arrested and in custody. 512 U.S. at 596, 601 (“[A]rrest statements of a co-defendant have 8 traditionally been viewed with special suspicion.”). See also Lilly v. Virginia, 527 U.S. 9 116, 137 (1999) (explaining that guarantees of trustworthiness were “highly unlikely” to 10 exist for accomplice confessions that inculpate a defendant “when the statements are given 11 under conditions that implicate the core concerns of the old ex parte affidavit practice— 12 that is, when the government is involved in the statements’ production . . . .”). Finch’s 13 statements, in contrast, were made to a friend during a private conversation. As the Fifth 14 Circuit explained in Ebron, “[t]his distinction . . . is consequential. Unlike the situation 15 where a declarant implicates himself and the defendant in a statement made to officials, a 16 statement made outside a custodial context does not provide the same set of incentives that 17 create the risk of an unreliable statement.” 683 F.3d at 133-34. Indeed, courts have 18 repeatedly found that statements made to friends and family, in contrast to custodial 19 statements, bear indicia of trustworthiness. See, e.g., United States v. Smalls, 605 F.3d 20 765, 783 (10th Cir. 2010) (“We may safely surmise that from time immemorial, only on 21 the rarest occasion, if ever, has one of sound mind—even one of sound mind who is not 22 particularly honest—falsely confessed a murder to an apparent acquaintance or friend. . . . 23 Cook most certainly was not seeking to curry favor with authorities in recounting the 24 specifics of Gantz’s murder to CI or seeking to shift or spread blame to his alleged co- 25 conspirators so as to engender more favorable treatment from authorities. . . . Cook 26 responded to CI’s questions as though he believed the two were engaged in casual 27 conversation—nothing more. From Cook’s standpoint, this was indeed the case, and that 28 makes all the difference, providing a ‘circumstantial guaranty’ of reliability not found in

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1 statements, arrest, custodial or otherwise, knowingly made to law enforcement officials.”); 2 People v. Cortez, 369 P.3d 521, 540 (Cal. 2016) (“[T]he context in which Bernal made the 3 statements—a conversation with a close family member in an apartment he frequented— 4 does not suggest that Bernal was trying to improve his situation with police . . . [and 5 instead] ‘promoted truthfulness.’”). 6 The substance of Finch’s statements to Howe after admitting that he killed two 7 people also bore indicia of trustworthiness. As Respondents note, while Finch described 8 Ellison’s actions in committing the crimes, he did not deny his own involvement and 9 acknowledged that he killed Mr. Boucher and looked into the victims’ eyes as they died. 10 Given this backdrop, the admission of Finch’s subsequent statements to Howe pursuant to 11 the rule of completeness would not have violated Roberts and Williamson. 12 Ellison’s other Sixth Amendment challenge is premised on the theory that the 13 Arizona Supreme Court’s decision “subvert[ed]” his rights under the Confrontation Clause 14 in violation of Crawford v. Washington, 541 U.S. 36 (2004). (Doc. 21 at 72-73 [“Although 15 application of Crawford would change the analysis, it would not change the result. 16 Crawford precludes testimonial hearsay absent a prior opportunity for cross-examination, 17 irrespective of its reliability.”].) This argument is meritless. Crawford held that the 18 Confrontation Clause prohibits the admission of an out-of-court testimonial statement at a 19 criminal trial unless the witness is unavailable to testify and the defendant had a prior 20 opportunity for cross-examination. 541 U.S. at 59. Although the Court did not provide a 21 definition of “testimonial,” it offered the following “formulations” of the “core class” of 22 testimonial statements: (1) “ex parte in-court testimony or its functional equivalent—that 23 is, material such as affidavits, custodial examinations, prior testimony that the defendant 24 was unable to cross-examine, or similar pretrial statements that declarants would 25 reasonably expect to be used prosecutorially;” (2) “extrajudicial statements . . . contained 26 in formalized testimonial materials, such as affidavits, depositions, prior testimony, or 27 confessions;” and (3) “statements that were made under circumstances which would lead 28 an objective witness reasonably to believe that the statement would be available for use at

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1 a later trial.” Id. at 51-52. 2 Finch’s statements to his friend at a bar and on the drive home from the bar do not 3 fall into any of these categories. They were not in-court testimony or its functional 4 equivalent; they were not contained in formalized testimonial materials; and they were not 5 made under circumstances that would lead an objective witness to believe they would be 6 used at a later trial. Crawford, 541 U.S. at 51-52 (“An accuser who makes a formal 7 statement to government officers bears testimony in a sense that a person who makes a 8 casual remark to an acquaintance does not.”). As the Ninth Circuit has explained, 9 Crawford’s discussion of the nature of testimonial statements focused on the use of 10 statements “made to a government officer with an eye toward trial, the primary abuse at 11 which the Confrontation Clause was directed.” Jensen v. Pliler, 439 F.3d 1086, 1089 (9th 12 Cir. 2006). See also Delgadillo v. Woodford, 527 F.3d 919, 927 (9th Cir. 2008) (“[T]he 13 state court’s implicit conclusion that Ramirez’s remarks to her coworkers did not implicate 14 Delgadillo’s Sixth Amendment rights of confrontation was not contrary to, nor an 15 unreasonable application of Crawford.”); Desai v. Booker, 732 F.3d 628, 630 (6th Cir. 16 2013) (“[After Crawford], the Confrontation Clause no longer applied to nontestimonial 17 hearsay such as the friend-to-friend confession . . . .”); United States v. Brown, 441 F.3d 18 1330, 1360 (11th Cir. 2006) (“[T]he private telephone conversation between mother and 19 son . . . was not testimonial.”); Ramirez v. Dretke, 398 F.3d 691, 695 & n.3 (5th Cir. 2005) 20 (co-defendant’s statement that petitioner had hired him to kill a fireman was not 21 testimonial: “There is nothing in Crawford to suggest that ‘testimonial evidence’ includes 22 spontaneous out-of-court statements made outside any arguably judicial or investigatory 23 context.”). It follows that the challenged evidentiary ruling regarding the admissibility of 24 Finch’s later statements to Howe did not violate Crawford. Whorton v. Bockting, 549 U.S. 25 406, 420 (2007) (noting “Crawford’s elimination of Confrontation Clause protection 26 against the admission of unreliable out-of-court nontestimonial statements”). 27 … 28 …

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1 E. Claim 5 2 In Claim 5, Ellison alleges that the trial court’s evidentiary rulings excluding Finch’s 3 statements to fellow inmate Daymond Hill deprived him of his right to reliable and fair 4 proceedings in violation of the Eighth and Fourteenth Amendments. (Doc. 21 at 73-78.) 5 Ellison argues he presented this claim to the Arizona Supreme Court on direct appeal. (Id. 6 at 73-74.) Respondents contend the claim is procedurally defaulted because Ellison did 7 not fairly present a federal basis for the claim. (Doc. 30 at 55.) 8 Respondents are correct. To properly exhaust state remedies on a claim, a habeas 9 petitioner must “present the state courts with the same claim he urges upon the federal 10 court.” Picard v. Connor, 404 U.S. 270, 276 (1971). A claim is “fairly presented” if the 11 petitioner has described the operative facts and the federal legal theory on which his claim 12 is based in a manner that provides the state courts with a fair opportunity to apply 13 controlling legal principles to the facts bearing upon the constitutional claim. Harless, 459 14 U.S. at 6. A petitioner has not “fairly presented” (and thus exhausted) a federal claim in 15 state court unless he specifically indicated to that court that the claim was based on federal 16 law. See, e.g., Lyons v. Crawford, 232 F.3d 666, 669-70 (9th Cir. 2000), as amended by 17 247 F.3d 904 (9th Cir. 2001) (“Lyons’s general reference in his state habeas petition to 18 insufficiency of evidence, his ‘right to be tried by an impartial jury,’ ‘ineffective assistance 19 of counsel’ and being ‘shammed’ into waiving a preliminary hearing, lacked the specificity 20 and explicitness required for the purported federal constitutional dimension of such claims 21 to have been ‘fairly presented’ to the Nevada courts under our precedent.”); Shumway v. 22 Payne, 223 F.3d 982, 987-88 (9th Cir. 2000) (“Shumway’s naked reference to ‘due 23 process’ in Issue I was insufficient to state a federal claim. It is not enough to make a 24 general appeal to a constitutional guarantee as broad as due process to present the substance 25 of such a claim to a state court. Therefore, Shumway’s statement of the issue presented 26 did not ‘fairly present’ her federal claim to the Washington Supreme Court.”) (cleaned up); 27 Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (“The mere similarity between a 28 claim of state and federal error is insufficient to establish exhaustion.”). A petitioner must

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1 make the federal basis of a claim explicit by citing specific provisions of federal statutory 2 or case law, Gatlin, 189 F.3d at 888, or by citing state cases that explicitly analyze the same 3 federal constitutional claim, Peterson, 319 F.3d at 1158. 4 Before the guilt phase of trial, Ellison filed a motion in limine seeking to admit 5 Finch’s statements to Hill. (ROA, Vol. II, Doc. 60.) According to Hill, Finch stated that 6 he was arrested for “a couple of burglaries” and “there was a couple of murders too, that 7 he killed some people.” (RT 2/24/2000 at 20.)15 According to Hill, Finch did not mention 8 an accomplice or a weapon or being under duress. (Id.) According to Hill, Finch used the 9 singular “he” rather than “we” when describing the crimes and “said something about he 10 strangled them or choked them or something.” (Id. at 21-22.) 11 The trial court denied the motion in limine, concluding that under Rule 401 of the 12 Arizona Rules of Evidence, Finch’s statements were not relevant because they did “not 13 have any tendency to make Ellison’s involvement in the crimes more or less probable than 14 it would be without the evidence.” (ROA, Vol. II, Doc. 77 [minute entry dated March 1, 15 2000].) 16 On direct appeal, Ellison argued that “[t]he trial court abused its discretion when it 17 precluded Appellant from presenting the testimony of Daymond Hill that Finch admitted 18 that he had killed both victims.” (Opening Br. at 40.) In support of this argument, Ellison 19 did not mention the Sixth Amendment or the Confrontation Clause—he simply argued that 20 Finch’s statements were relevant under Arizona Rule of Evidence 401 and constituted 21 statements against penal interest under Rule 803(b)(4). (Opening Br. at 40-41.) The 22 Arizona Supreme Court, in turn, determined that the trial court did not abuse its discretion 23 because the statements lacked indicia of trustworthiness as required under Rule 804(b)(3) 24 and were not relevant to Ellison’s guilt under state law. Ellison, 140 P.3d at 914. 25 As noted, Ellison did not allege a violation of his federal constitutional rights. The 26 claim was “devoid of any language presenting a federal” claim. Castillo, 399 F.3d at 1000- 27 28 15 Hill’s statements, taken from the transcript of a defense interview on April 19, 1999, were read into the record during a hearing on the motion in limine. (RT 2/24/00 at 18-19.)

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1 01 (petitioner “focused his argument” on the trial court’s application of Arizona Rule of 2 Evidence 403); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996) (finding that 3 petitioner, who argued in state court that the admission of prior act evidence infringed on 4 his fair trial rights, had not exhausted a federal claim because his argument was based 5 exclusively on state evidentiary law and never apprised the court that he was asserting a 6 federal claim). And because Ellison raised no federal constitutional claim, the Arizona 7 Supreme Court was silent as to any federal issue. Castillo, 399 F.3d at 1002 (“[T]he 8 Arizona Court of Appeals addressed each of the issues Castillo briefed and argued and 9 issued its own reasoned state judgment. It rejected on state law grounds Castillo’s 10 argument concerning the admission of his videotaped interrogation.”). Compare 11 Sandgathe v. Maas, 314 F.3d 371, 376–77 (9th Cir. 2002) (federal question is raised where 12 state court considered and decided the issue even if petitioner did not frame his claim in 13 terms of any federal right). 14 Ellison notes that his opening brief cited State v. LaGrand, 734 P.3d 563 (Ariz. 15 1987), which he argues was sufficient to fairly present his federal due process claim. (Doc. 16 38 at 36.) Although it is true that LaGrand addressed a constitutional challenge to the 17 exclusion of a confession, Ellison himself never raised such a challenge, nor did he cite the 18 United States Supreme Court case on which the appellant in LaGrand relief.16 Instead, and 19 consistent with the argument in his opening brief, he specifically cited LaGrand’s lengthy 20 discussion of Rule 804(b)(3). (Opening Br. at 41.) Although “a citation to a state case 21 analyzing a federal constitutional issue serves the same purpose as a citation to a federal 22 case analyzing such an issue,” Peterson, 319 F.3d at 1158, “[f]or a federal issue to be 23 presented by the citation of a state decision dealing with both state and federal issues 24 relevant to the claim, the citation must be accompanied by some clear indication that the 25 case involves federal issues,” Casey, 386 F.3d at 912 n.13. “Where . . . the citation to the 26 state case has no signal in the text of the brief that the petitioner raises federal claims or 27 relies on state law cases that resolve federal issues, the federal claim is not fairly 28 16 Chambers v. Mississippi, 410 U.S. 284 (1973).

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1 presented.” Casey, 386 F.3d at 912 n.13. As the Ninth Circuit later explained, “Casey 2 refused to recognize any such ‘signal’ where the relevant brief never used the word 3 ‘federal’; did not refer expressly to the federal constitution or to any of its provisions; and 4 did not indicate in parentheticals or elsewhere whether the state cases the brief did cite 5 discussed the federal constitution.’” Arrendondo v. Neven, 763 F.3d 1122, 1138 (9th Cir. 6 2014) (cleaned up). Ellison’s citation to LaGrand contained none of these indications or 7 signals that he was raising a federal claim. Thus, Ellison did not “present the state courts 8 with the same claim he urges upon the federal court.” Picard, 404 U.S. at 276. And 9 because the federal claim was not fairly presented in state court, it is procedurally defaulted 10 and Ellison is precluded from presenting it to the state courts in a successive post- 11 conviction proceeding. See Ariz. R. Crim. P. 32.1(b)-(h), 32.2(a) & (b). 12 Ellison contends that Rule 32.2(a)(3) does not apply to claims that “affected a right 13 of constitutional magnitude” if the petitioner did not personally waive the claim. (Doc. 38 14 at 36-37.) But Claim 5 does not fall within the limited framework of claims requiring a 15 knowing, voluntary, and intelligent waiver before a finding of preclusion. See Ariz. Rule 16 Crim. Proc. 32.2(a)(3) cmt. (West 2004) (explaining that most claims of trial error do not 17 require a personal waiver); Stewart v. Smith, 46 P.3d 1067, 1070 (Ariz. 2002) (identifying 18 the right to counsel, right to a jury trial, and right to a 12-person jury under the Arizona 19 Constitution as the type of claims that require personal waiver); State v. Swoopes, 166 P.3d 20 945, 954 (Ariz. Ct. App. 2007) (“An alleged violation of the general due process right of 21 every defendant to a fair trial, without more, does not save that belated claim from 22 preclusion.”). 23 Finally, Ellison argues that the claim’s default is excused by the ineffective 24 assistance of appellate and PCR counsel. (Doc. 38 at 37-38.) He is incorrect. First, 25 ineffective assistance of appellate counsel may be used as cause to excuse a procedural 26 default only where the particular ineffective-assistance allegation was first exhausted in 27 state court as an independent constitutional claim. Edwards v. Carpenter, 529 U.S. 446, 28 453 (2000); Murray v. Carrier, 477 U.S. 478, 489-90 (1986). Ellison did not raise such a

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1 claim of ineffective assistance of appellate counsel. Second, under Martinez, the 2 ineffective assistance of PCR counsel can only excuse the default of claims of ineffective 3 assistance of trial counsel. Hunton v. Sinclair, 732 F.3d 1124, 1126-27 (9th Cir. 2013) 4 (“While Hunton agrees, as he must, that he did procedurally default on his Brady claim, he 5 asserts that he may still pursue it because he was deprived of counsel at his [PCR] 6 proceeding. However, that pursuit is blocked by a barrier that the Supreme Court clearly 7 recognized . . . [when it] declared that the petitioner’s assertion that a claim had been 8 defaulted at his [PCR] proceeding due to ineffective assistance of counsel at that 9 proceeding must fail . . . . In [Martinez], the Court did create one exception . . . where 10 ineffective assistance of counsel in a [PCR] proceeding results in a failure to assert that 11 there was ineffective assistance of counsel in the trial proceedings, the claim would be 12 cognizable. But . . . [t]he Court made it plain that the exception extended no further.”) 13 (citations omitted); Martinez, 926 F.3d at 1225 (“[I]neffective assistance of PCR counsel 14 can constitute cause only to overcome procedurally defaulted claims of ineffective 15 assistance of trial counsel.”); Pizzuto v. Ramirez, 783 F.3d 1171, 1177 (9th Cir. 2015). 16 For these reasons, Claim 5 is defaulted and barred from federal review. 17 F. Claim 6 18 In Claim 6, Ellison alleges that the admission of false testimony from Vivian Brown 19 deprived him of his right to reliable, fair, and nonarbitrary proceedings, in violation of the 20 Eighth and Fourteenth Amendments. (Doc. 21 at 78-80.) Ellison argues he presented this 21 claim to the Arizona Supreme Court on direct appeal. (Id.) Respondents contend the claim 22 is procedurally defaulted because Ellison did not fairly present a federal basis for the claim. 23 (Doc. 30 at 58-59.) 24 Respondents have the better of this argument. On direct appeal, Ellison raised a 25 claim that the trial court abused its discretion by limiting his cross-examination of Vivian 26 Brown, the victims’ daughter, who testified that she saw Ellison working at a house two 27 doors down from her parents’ home in July or August 1998. (Opening Br. at 42-43.) 28 Ellison argued that he was entitled under Rule 608(b) of the Arizona Rules of Evidence to

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1 challenge Brown’s credibility on cross-examination with records showing that he had been 2 in custody at the time Brown claimed to have seen him. (Id.) The Arizona Supreme Court 3 determined that the trial court did not abuse its discretion because the custody records were 4 not evidence of the witness’s conduct (as required for admissibility under Rule 608(b)) and 5 because they constituted hearsay and Ellison did not try to admit them under a hearsay 6 exception. Ellison, 140 P.3d at 914-15. 7 Ellison did not expressly allege a violation of his federal constitutional rights in his 8 opening brief to the Arizona Supreme Court—he cited only Arizona cases and Arizona 9 rules of evidence in support of his claim that the trial court had committed an abuse of 10 discretion. (Opening Br. at 42-43.) Notwithstanding this, Ellison now contends that the 11 Arizona cases he cited were sufficient to fairly present a federal claim. That argument is 12 unavailing. Although one of Ellison’s cited cases, State v. Salazar, 898 P.2d 982, 987-88 13 (Ariz. Ct. App. 1995), agreed with the defendant’s contention that the trial court had abused 14 its discretion in applying Arizona’s rules of evidence and also proceeded to find that the 15 trial court’s limitations on cross-examination violated the defendant’s confrontation rights 16 under the Sixth Amendment, Ellison’s opening brief gave no indication that his claim 17 concerned federal issues. Thus, his citation to Salazar was insufficient to fairly present a 18 federal claim. Casey, 386 F.3d at 911-12; Arrendondo, 763 F.3d at 1138. See also 19 Peterson, 319 F.3d at 1158-59 (“In his petition for review to the Oregon Supreme Court, 20 Peterson cited two Oregon cases to support his right to counsel claim. Both cases 21 [Krummacher and Chew] analyzed right to counsel claims under the Sixth and Fourteenth 22 Amendments to the United States Constitution and under Article I, Section 11, of the 23 Oregon Constitution. But Peterson, who was represented by counsel, did not simply claim 24 in his petition that he had been denied his constitutionally guaranteed right to counsel and 25 then cite the two Oregon cases. Instead, he specified that he had been denied ‘adequate’ 26 assistance of counsel under the Oregon Constitution and cited the two cases. Since the 27 citation to Krummacher and Chew was preceded by an explicit reference to the usual term 28 referring to the state version of the constitutional right, as well as by an explicit reference

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1 to the Oregon Constitution, a fair reading of Peterson’s counseled petition was that the 2 cases were cited only to support a state-law claim.”) (citations omitted). 3 For the reasons discussed in relation to Claim 5, Claim 6 is procedurally defaulted 4 and the default is not excused by the performance of appellate or PCR counsel. Carpenter, 5 529 U.S. at 453; Martinez, 926 F.3d at 1225. Claim 6 is thus denied as procedurally 6 defaulted and barred from federal review. 7 G. Claim 7 8 In Claim 7, Ellison alleges that the prosecution violated his rights under the Sixth 9 and Fourteenth Amendments by introducing inadmissible hearsay. (Doc. 21 at 80-84.) The 10 evidence at issue is testimony from Detective Watson about Finch’s physical reaction 11 during his custodial interrogation when he began discussing Ellison. (Id. at 81.) 12 Ellison argues that he fairly presented this claim to the Arizona Supreme Court. The 13 Court agrees. In his opening brief, Ellison claimed that the evidence was “inadmissible 14 hearsay admitted in violation of the Sixth and Fourteenth Amendments.” (Opening Br. at 15 43.) He then argued that the evidence was “admitted in violation of the Confrontation 16 Clause.” (Id. at 42-43.) The Arizona Supreme Court characterized Ellison’s claim as 17 arguing that Watson’s testimony was “inadmissible hearsay that violated the Confrontation 18 Clause.” Ellison, 140 P.3d at 915. Under these circumstances, the claim is exhausted. See 19 Gatlin, 189 F.3d at 888; Sandgathe, 314 F.3d at 376-77. 20 Nevertheless, the claim is meritless. During the guilt phase of trial, the prosecution 21 sought to elicit testimony from Detective Watson about Finch’s body language during his 22 interrogation when they spoke about “Slinger”/Ellison. (RT 1/15/02 at 156-57 [“Without 23 telling us anything he said, what was his body language and what was he acting like?”].) 24 The defense immediately objected and the trial court sustained the objection, ruling that 25 Detective Watson could not speculate about the cause of Finch’s reaction. (Id. at 157-59.) 26 However, the court permitted the prosecution to ask the Detective Watson whether there 27 was “any difference in [Finch’s] demeanor and his body language when he was discussing 28 Slinger and the particular subject of Slinger as opposed to answering any of your other

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1 questions about his involvement in the crimes.” (Id. at 159-60.) In response to that 2 question, Detective Watson answered: “Yes. His [Finch’s] hands would shake. His voice 3 broke a couple of times. And at one point during the interview it appeared like his eyes 4 were starting to well up like he was going to have tears.” (Id. at 160.) 5 In denying this claim on appeal, the Arizona Supreme Court found that the 6 admission of Detective Watson’s testimony was not fundamental error because Finch’s 7 nonverbal conduct “[did] not appear intended as an assertion” and therefore was not 8 hearsay under Rule 801 of the Arizona Rules of Evidence. Ellison, 140 P.3d at 915. Ellison 9 now alleges that this ruling was contrary to and involved an unreasonable application of 10 Bruton v. United States, 391 U.S. 123 (1968), and Crawford. (Doc. 21 at 82-84.) 11 As already noted, the Confrontation Clause prohibits the admission of testimonial 12 hearsay at a criminal trial unless the witness is unavailable to testify and the defendant had 13 a prior opportunity for cross-examination. Crawford, 541 U.S. at 59. Like Crawford, 14 Bruton, which limits the introduction of a co-defendant’s out-of-court statement, concerns 15 only testimonial hearsay. Lucero v. Holland, 902 F.3d 979, 987-88 (9th Cir. 2018) (“[T]he 16 Bruton limitation on the introduction of codefendants’ out-of-court statements is 17 necessarily subject to Crawford’s holding that the Confrontation Clause is concerned only 18 with testimonial out-of-court statements.”); Tennessee v. Street, 471 U.S. 409, 414 (1985) 19 (“The nonhearsay aspect of [accomplice] Peele’s confession . . . raises no Confrontation 20 Clause concerns.”); United States v. Dargan, 738 F.3d 643, 651 (4th Cir. 2013) (“Bruton 21 is simply irrelevant in the context of nontestimonial statements.”). 22 The Supreme Court has not ruled on when nonverbal conduct constitutes hearsay 23 under Crawford. United States v. Ibarra-Diaz, 805 F.3d 908, 923 n.7 (10th Cir. 2015). 24 However, lower courts considering the issue have applied the definition set forth in Rule 25 801(a) of the Federal Rules of Evidence, under which nonverbal conduct cannot be hearsay 26 unless it constitutes a statement, meaning that the declarant “intended it as an assertion.” 27 See, e.g., United States v. Taylor, 688 F. App’x 638, 642 (11th Cir. 2017); United States v. 28 Marshall, 259 F. App’x 855, 860-61 (7th Cir. 2008). Rule 801(a) places the burden on the

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1 party claiming there was an intention to make an assertion. United States v. Kool, 552 F. 2 App’x 832, 834 (10th Cir. 2014); see also Fed. R. Evid. 801, advisory committee note to 3 1972 proposed rules (“The rule is so worded as to place the burden upon the party claiming 4 that the intention existed; ambiguous and doubtful cases will be resolved against him and 5 in favor of admissibility”). 6 Ellison has not met his burden of showing that Finch’s nonverbal conduct was 7 intended as an assertion. The “nonverbal emotional reactions” described by Detective 8 Watson do not qualify as an assertion. United States v. Campbell, 507 F. App’x 150, 154 9 (3d Cir. 2012) (“The court allowed Walter to testify that when William Campbell heard 10 the news about his son, he was angry and in shock. Campbell acknowledges that nonverbal 11 conduct is only hearsay if it is intended as an assertion, but claims that requirement is met 12 here. . . . Contrary to Campbell’s assertion, the Rules of Evidence and our case law make 13 clear that testimony concerning a person’ s nonverbal emotional reaction does not qualify 14 as an assertion.”). In United States v. Kiel, 658 F. App’x 701 (5th Cir. 2016), the district 15 court allowed an investigator to testify that a friend of one of the defendants, when shown 16 surveillance footage of a bank robbery, “fell back into her chair and put her hand over her 17 mouth and started crying.” Id. at 710. The Fifth Circuit held that the court did not plainly 18 err in admitting the testimony: 19 Sims’s reaction to the video . . . is not hearsay because it was not intended as 20 an assertion. In other words, although a jury might infer from Sims’s visceral reaction that she knew the individual in the surveillance footage, it does not 21 follow that she intended to identify the individual in the footage. 22 Furthermore, Marshall has not provided any authority that such non-assertive actions constitute “testimony” and therefore invoke the protections of the 23 Confrontation Clause. 24 Id. (citations omitted). 25 Finch’s nonverbal behavior—shaking hands, breaking voice, and tears welling in 26 his eyes—is indistinguishable from the nonverbal emotional reactions addressed in 27 Campbell and Kiel. As the Arizona Supreme Court correctly found, the behavior was not 28 intended as an assertion and therefore was not hearsay. At a minimum, that determination

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1 was not contrary to, or an unreasonable application of, clearly established federal law and 2 was not based on an unreasonable determination of the facts in light of the evidence 3 presented in state court. 4 H. Claim 8 5 In Claim 8, Ellison alleges that his rights under the Eighth and Fourteenth 6 Amendments were violated when the trial court admitted evidence of a handgun linked to 7 him which was found in a car parked in the garage of his girlfriend. (Doc. 21 at 84-87.) 8 Respondents contend this claim is procedurally defaulted. (Doc. 30 at 65-66.) 9 Respondents are correct. On direct appeal, Ellison alleged only that the trial court 10 abused its discretion by admitting the evidence, which he argued was a violation of Arizona 11 Rule of Evidence 403. (Opening Br. at 44.) He did not allege a violation of the federal 12 constitution or cite any cases analyzing a federal issue. (Id.) The Arizona Supreme Court 13 denied the claim, finding that the trial court did not abuse its discretion because the 14 “evidence establishes that Ellison possessed a gun before and after the crime, and combined 15 with other evidence that Finch did not possess a gun, makes less likely Ellison’s story that 16 he participated only because Finch threatened him with a gun.” Ellison, 140 P.3d at 915- 17 16. The court did not consider any claim of a violation of Ellison’s federal constitutional 18 rights. Id. 19 Ellison did not exhaust a federal claim in state court. For the reasons discussed 20 above, the procedural default of the claim is not excused by the performance of appellate 21 or PCR counsel. Carpenter, 529 U.S. at 453; Martinez, 926 F.3d at 1225. Thus, Claim 8 22 is denied as procedurally defaulted and barred from federal review. 23 I. Claim 9 24 In Claim 9, Ellison alleges that the trial court improperly admitted a hearsay 25 statement by Finch implicating Ellison in the crime, in violation of the Sixth, Eighth, and 26 Fourteenth Amendments. (Doc. 21 at 87-90.) On direct appeal, the Arizona Supreme 27 Court denied Ellison’s claim that the admission of the statement violated his Sixth 28

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1 Amendment confrontation rights. Ellison, 140 P.3d at 916.17 2 At issue is testimony by Detective Auld who, when asked by the prosecutor what 3 he was looking for when that he searched the home of Ellison’s girlfriend, replied: “Any 4 evidence associated with the crime, some of the property that was taken, the phone cords, 5 the tape, the gun that was described to us by Mr. Finch.” (RT 1/16/02 at 170, emphasis 6 added.) Defense counsel did not raise an immediate objection to the testimony and 7 ultimately the parties agreed that it would not be stricken so as to avoid drawing the jury’s 8 attention to it. (Id. at 210-13.) The prosecutor also agreed not to use the statement in his 9 closing argument. (Id. at 212.) 10 On direct appeal, Ellison argued that the testimony about Finch’s statement violated 11 the Sixth Amendment and that the trial court should have sua sponte ordered a mistrial. 12 (Opening Br. at 45-46.) The Arizona Supreme Court denied the claim, finding no 13 fundamental error: 14 Detective Auld’s reference was brief and the State did not use this statement 15 in closing. Additionally, the jurors did not hear any specific evidence or argument regarding Finch’s duress claim and likely were not even aware that 16 Finch claimed Ellison pointed a gun at him. As the State points out, the jury 17 might have thought that Auld’s reference concerned one of the guns taken from the Bouchers’ house. 18 Ellison, 140 P.3d at 916. 19 Ellison alleges that the ruling was contrary to and involved an unreasonable 20 application of Crawford and Bruton and was based on an unreasonable determination of 21 the facts. Respondents counter that Crawford and Bruton, which apply only to hearsay 22 statements, are inapplicable to Detective Auld’s testimony. (Doc. 30 at 70.) The Court 23 agrees. 24 Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. 25 See, e.g., Fed. R. Evid. 801(c). “Crawford applies only to testimonial hearsay, and does 26 27 17 Respondents acknowledge that Ellison raised a Sixth Amendment claim on direct 28 appeal but contend that any Eighth Amendment claim is procedurally defaulted. (Doc. 30 at 68.)

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1 not bar the use of testimonial statements for purposes other than establishing the truth of 2 the matter asserted.” United States v. Wahchumwah, 710 F.3d 862, 871 (9th Cir. 2013) 3 (citation omitted). For example, “[a]n out-of-court statement used to explain why police 4 took a certain action in their investigation is not hearsay.” United States v. Velazquez- 5 Rivera, 366 F.3d 661, 666 (8th Cir. 2004). See also United States v. Taylor, 569 F.3d 742, 6 749 (7th Cir. 2009) (“We have recognized repeatedly that statements offered to establish 7 the course of the investigation, rather than to prove the truth of the matter asserted, are 8 nonhearsay and therefore admissible.”) (cleaned up). See generally United States v. 9 Johnson, 875 F.3d 1265, 1278-79 (9th Cir. 2017) (acknowledging this rule while noting 10 that “[c]ourts must exercise caution to ensure that out-of-court testimonial statements, 11 ostensibly offered to explain the course of a police investigation, are not used as an end- 12 run around Crawford and hearsay rules, particularly when those statements directly 13 inculpate the defendant”). 14 Detective Auld’s testimony that officers were looking for items associated with the 15 crime, including “the gun that was described to us by Mr. Finch,” was not offered to prove 16 the truth of any assertion. Rather, it was offered in the context of Auld’s explanation of 17 the officers’ actions in carrying out the search. Taylor, 569 F.3d at 749 (“The government 18 offered [non-testifying declarant’s] statement in the context of the officers’ testimony to 19 explain the course of law enforcement’s investigation, not as evidence that Taylor 20 possessed the gun.”). 21 Alternatively, even assuming the testimony was hearsay and therefore was admitted 22 in violation of Crawford, Ellison would not be entitled to relief. Confrontation Clause 23 errors are subject to harmless error analysis. Coy v. Iowa, 487 U.S. 1012, 1021-22 (1988); 24 Woods v. Sinclair, 764 F.3d 1109, 1125 (9th Cir. 2014); Ocampo v. Vail, 649 F.3d 1098, 25 1114 (9th Cir. 2011). Under that standard, a federal court may not grant habeas relief for 26 a Confrontation Clause error unless the error had a “substantial and injurious effect or 27 influence” on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637–38 (1993); see also 28 Brown v. Davenport, 596 U.S. 118, 122 (2022) (“When a state court has ruled on the merits

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1 of a state prisoner’s claim, a federal court cannot grant relief without first applying both 2 the test this Court outlined in Brecht and the one Congress prescribed in AEDPA.”). 3 Any error here did not affect the verdict. As the Arizona Supreme Court noted, the 4 statement at issue was brief, ambiguous, and isolated. Ellison, 140 P.3d at 916. The 5 prosecutor did not use the statement in his closing argument or elsewhere in the case against 6 Ellison. Compare United States v. Silva, 380 F.3d 1018, 1021 (7th Cir. 2004) (Crawford 7 error not harmless where prosecutor “explicitly used some of the hearsay as evidence of 8 Silva’s guilt” and court denied defendant’s objections and failed to give curative 9 instruction). 10 J. Claim 10 11 In Claim 10, Ellison alleges that the cumulative effect of the trial court’s guilt-phase 12 evidentiary errors violated his right to due process under the Eighth and Fourteenth 13 Amendments. (Doc. 21 at 90-92.) On direct appeal, the Arizona Supreme Court denied 14 Ellison’s claim of cumulative error, explaining that the court “usually does not subscribe 15 to the cumulative error doctrine” and that none of the alleged errors “independently 16 prove[d] prejudice.” Ellison, 140 P.3d at 916. 17 The parties disagree on the claim’s procedural status. Because the claim is plainly 18 meritless, the Court need not address this issue. Lambrix v. Singletary, 520 U.S. 518, 524- 19 25 (1997) (courts may bypass the procedural default issue in the interest of judicial 20 economy when the merits are clear but the procedural default issues are not). 21 The United States Supreme Court has not specifically recognized the doctrine of 22 cumulative error as an independent basis for habeas relief. Lorraine v. Coyle, 291 F.3d 23 416, 447 (6th Cir. 2002) (“The Supreme Court has not held that distinct constitutional 24 claims can be cumulated to grant habeas relief.”), corrected on rh’g, 307 F.3d 459 (6th Cir. 25 2002); cf. Morris v. Sec’y Dep’t of Corr., 677 F.3d 1117, 1132 n.3 (11th Cir. 2012) (“We 26 need not determine today whether, under the current state of Supreme Court precedent, 27 cumulative error claims reviewed through the lens of AEDPA can ever succeed in showing 28 that the state court’s decision on the merits was contrary to or an unreasonable application

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1 of clearly established law.”). But see Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007) 2 (“Under traditional due process principles, cumulative error warrants habeas relief only 3 where the errors have so infected the trial with unfairness as to make the resulting 4 conviction a denial of due process.”) (citation omitted). At any rate, the Court has not 5 identified any constitutional errors arising from the trial court’s guilt-phase evidentiary 6 rulings. Therefore, “is enough to say that [Ellison’s] cumulative error claim clearly fails 7 in light of the absence of any individual errors to accumulate.” Morris, 677 F.3d at 1132 8 n.3. See also McGill v. Shinn, 16 F.4th 666, 685 (9th Cir. 2021) (“If there are no errors, 9 there is no need to consider their cumulative effect.”). At a minimum, the Arizona Supreme 10 Court’s denial of this claim was not contrary to or an unreasonable application of clearly 11 established federal law. 12 K. Claim 11 13 In Claim 11, Ellison alleges that the reasonable-doubt instruction impermissibly 14 lowered the State’s burden of proof in violation of the Sixth and Fourteenth Amendments. 15 (Doc. 21 at 92-93.) The Arizona Supreme Court’s rejection of this claim, Ellison, 140 P.3d 16 at 916, was neither contrary to nor an unreasonable application of clearly established 17 federal law. 18 During both the guilt and sentencing phases of trial, the trial court defined proof 19 beyond a reasonable doubt as “proof that leaves you firmly convinced of” “a defendant’s 20 guilt,” “the fact in dispute,” and “the aggravating circumstance.” (RT 1/15/02 at 15; RT 21 1/18/02 at 13; RT 2/6/04 at 49; RT 2/9/04 at 102.) Relying on an opinion from an 22 intermediate appellate court of Hawaii, Ellison argues that the phrase “firmly convinced” 23 “reduced the State’s burden of proof to something less than reasonable doubt; it is akin to 24 ‘clear and convincing.’” (Doc. 21 at 93.) 25 This argument is unavailing. “The beyond a reasonable doubt standard is a 26 requirement of due process, but the Constitution neither prohibits trial courts from defining 27 reasonable doubt nor requires them to do so as a matter of course.” Victor v. Nebraska, 28 511 U.S. 1, 5 (1994). As long as the jury is instructed that the defendant must be found

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1 guilty beyond a reasonable doubt, “the Constitution does not require that any particular 2 form of words be used in advising the jury of the government’s burden of proof. Rather, 3 taken as a whole, the instructions must correctly convey the concept of reasonable doubt 4 to the jury.” Id. (cleaned up). 5 The instruction provided in Ellison’s case was based on the pattern instruction 6 adopted by the Federal Judicial Center. State v. Van Adams, 984 P.2d 16, 25-26 (Ariz. 7 1999). Ellison cites no controlling authority holding that the instruction impermissibly 8 lowers the burden of proof, and, in Victor, Justice Ginsburg praised the instruction as 9 “clear, straightforward, and accurate.” 511 U.S. at 26 (Ginsburg, J., concurring). The 10 Ninth Circuit has upheld identical or substantially similar instructions. See, e.g., United 11 States v. Artero, 121 F.3d 1256, 1257-59 (9th Cir. 1997); United States v. Velasquez, 980 12 F.2d 1275, 1278 (9th Cir. 1992) (“Considering the instruction given as a whole, the use of 13 the ‘firmly convinced’ language did not indicate to the jury that the prosecutor had a lesser 14 burden than that implied by the use of the term ‘reasonable doubt’ standing alone.”). 15 L. Claim 12 16 In Claim 12, Ellison alleges that the trial court erroneously denied his motion for 17 judgment of acquittal despite insufficient evidence of premeditated murder, in violation of 18 the Sixth, Eighth, and Fourteenth Amendments. (Doc. 21 at 93-97.) 19 As background, at the close of the State’s guilt-phase case, Ellison moved for a 20 directed verdict that he was not death-eligible. (RT 1/17/2002 at 47-49.) He argued that 21 the evidence did not support a finding that he killed or intended to kill either victim or that 22 he acted with recklessness sufficient to satisfy the Enmund/Tison criteria for felony murder. 23 (Id.)18 Judge Moon denied the motion, concluding that circumstantial evidence supported 24 a finding either that Ellison committed premeditated murder or was guilty of felony murder 25 and satisfied the Enmund/Tison requirements. (Id. at 52-54.) The jury then found Ellison 26 18 Under Tison v. Arizona, 481 U.S. 137 (1987), and Enmund v. Florida, 458 U.S. 782 27 (1982), a defendant convicted of felony murder can be sentenced to death only if he actually 28 killed, attempted to kill, or intended to kill, or if he was a major participant in the underlying felony and acted with reckless indifference to human life.

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1 guilty of both premeditated and felony murder. It also made specific findings that the 2 Enmund/Tison factors were satisfied. 3 On direct appeal, the Arizona Supreme Court rejected Ellison’s argument that the 4 trial court erred in denying his motion for acquittal. Ellison, 140 P.3d at 917-18. With 5 respect to premeditated murder, the court first recited the statutory definition of the offense, 6 stating that a person commits premeditated murder if “[i]ntending or knowing that the 7 person’s conduct will cause death, such person causes the death of another with 8 premeditation.” Id. at 917 (quoting A.R.S. § 13-1105(A)(1)). The court then explained 9 that to establish premeditation, “the state must prove that the defendant acted with either 10 the intent or knowledge that he would kill his victim and that such intent or knowledge 11 preceded the killing by a length of time permitting reflection.” Id. (quotation omitted). 12 The court further explained that a defendant may be liable as an accomplice “only for those 13 offenses the defendant intended to aid or aided another in planning or committing.” Id. 14 (quoting State v. Phillips, 46 P.3d 1048 (Ariz. 2002)). As part of that discussion, the court 15 rejected Ellison’s argument that “duress should be a defense to accomplice liability, 16 because a person acting under duress does not have the specific intent to aid or assist a 17 premeditated murder.” Id. The court observed that “Ellison confuses the distinct concepts 18 of motive and intent” and then elaborated: 19 Just as we have refused to recognize duress as a defense to felony murder even when the defendant did not physically kill the victim, we now decline 20 to recognize duress as a defense to accomplice liability for murder. Phillips 21 does not require a contrary rule. The focus, rather, is on whether the facts show Ellison’s specific intent to aid or assist Finch in the murders apart from 22 his intent to assist Finch in committing burglary. If a defendant has the 23 specific intent to assist in murder, even though his sole motivation is duress, Phillips is satisfied. 24 A reasonable fact-finder could have inferred that Ellison intentionally aided 25 or assisted Finch in killing the Bouchers, or even killed Mr. Boucher himself. 26 The evidence indicated that Ellison knew the victims, planned the night-time invasion of their home, and did not attempt to conceal his identity from them. 27 Ellison supplied the gloves he and Finch used in committing the crimes and led Finch to the scene. As the State notes, the manner in which Ellison and 28 Finch killed the Bouchers also shows premeditation. They bound them,

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1 making them helpless to stop the robbery, but still suffocated them. The 2 medical examiner testified that suffocation takes several minutes to complete. The medical examiner also testified that the victims had defensive 3 wounds on their bodies. Ellison’s argument under Phillips fails. 4 Id. (citation omitted). 5 This decision was neither contrary to nor an unreasonable application of clearly 6 established federal law, nor was it based on an unreasonable factual determination. 7 First, the Court rejects Ellison’s argument that the Arizona Supreme Court’s “failure 8 to follow Phillips in finding accomplice liability for premeditated murder” represents a 9 violation of federal due process. (Doc. 21 at 97.) The United States Supreme Court has 10 “repeatedly held that a state court’s interpretation of state law, including one announced on 11 direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.” 12 Bradshaw v. Richey, 546 U.S. 74, 76 (2005). 13 Next, the United States Supreme Court has “made clear that [insufficient-evidence] 14 claims face a high bar in federal habeas proceedings because they are subject to two layers 15 of judicial deference.” Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam). The 16 first layer is the standard of review for insufficient evidence claims, which is “whether, 17 after viewing the evidence in the light most favorable to the prosecution, any rational trier 18 of fact could have found the essential elements of the crime beyond a reasonable doubt.” 19 Jackson v. Virginia, 443 U.S. 307, 319 (1979). Under this standard, “it is the responsibility 20 of the jury—not the court—to decide what conclusions should be drawn from evidence 21 admitted at trial.” Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam). Consequently, “[a] 22 reviewing court may set aside the jury’s verdict on the ground of insufficient evidence only 23 if no rational trier of fact could have agreed with the jury.” Id. See also Johnson, 566 U.S. 24 at 656 (“[T]he only question under Jackson is whether [the jury’s] finding was so 25 insupportable as to fall below the threshold of bare rationality.”). 26 The Jackson standard “gives full play to the responsibility of the trier of fact fairly 27 to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable 28 inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319. A reviewing court

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1 “faced with a record of historical facts that supports conflicting inferences must presume— 2 even if it does not affirmatively appear in the record—that the trier of fact resolved any 3 such conflicts in favor of the prosecution, and must defer to that resolution.” Id. at 326. 4 “A jury’s credibility determinations receive near-total deference under Jackson.” Bruce v. 5 Terhune, 376 F.3d 950, 957 (9th Cir. 2004); see also Schlup v. Delo, 513 U.S. 298, 330 6 (1995) (“[U]nder Jackson, the assessment of the credibility of witnesses is generally 7 beyond the scope of review.”). 8 Layered on top of the Jackson standard is the “additional layer of deference” 9 required by AEDPA. This requires a petitioner to establish that the state court 10 unreasonably applied Jackson to the facts of the case. Emery v. Clark, 604 F.3d 1102, 11 1111 n.7 (9th Cir. 2010); Juan H. v. Allen, 408 F.3d 1262, 1274-75 (9th Cir. 2005). 12 Therefore, “a federal court may not overturn a state court decision rejecting a sufficiency 13 of the evidence challenge simply because the federal court disagrees with the state court. 14 The federal court instead may do so only if the state court decision was ‘objectively 15 unreasonable.’” Cavazos, 565 U.S. at 2 (citation omitted). 16 Applying these layers of deference, Ellison is not entitled to relief. First, under 17 Jackson, a reasonable trier of fact, viewing the evidence in the light most favorable to the 18 prosecution, could conclude that Ellison intentionally aided or assisted in the murder of the 19 Bouchers. The trial evidence showed that Ellison, who unlike Finch was familiar with 20 Kingman, the Bouchers’ neighborhood, and the Bouchers themselves, planned the burglary 21 and led Finch to the house. Ellison did not attempt to conceal his identity even though the 22 Bouchers knew him, supplied the gloves used in the burglary, and had access to a handgun. 23 Ellison and Finch bound the victims, and Ellison suffocated and may have killed Mr. 24 Boucher. The suffocation itself would have taken several minutes. The evidence also 25 showed that Finch was “simple,” was unable to handle money, didn’t own a gun, didn’t 26 own a car, and had never been to Kingman. (RT 1/17/02 64-68, 76.) 27 At any rate, when viewed with the additional deference required by AEDPA, the 28 Arizona Supreme Court’s rejection of the claim was not “objectively unreasonable.”

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1 Cavazos, 565 U.S. at 2. 2 M. Claim 52 3 In Claim 52, Ellison alleges that the State “violated its duty to disclose information 4 about its witnesses, knowingly presented false evidence, and/or failed to correct false 5 evidence, in violation of the Fourteenth Amendment.” (Doc. 21 at 308-18.) More 6 specifically, Ellison asserts that the prosecution violated Napue v. Illinois, 360 U.S. 264 7 (1959), by (1) presenting false testimony from Detectives Watson and Auld; and (2) 8 presenting false testimony from Vivian Brown. (Id.)19 9 1. Detectives Watson And Auld 10 Before turning to the specifics of Ellison’s first Napue claim, it is helpful to provide 11 some context. As discussed in relation to Claim One, Ellison raised a pretrial Miranda 12 challenge to the admissibility of his confession. During the ensuing suppression hearing, 13 one of the key disputed issues was whether Ellison had made an unambiguous request for 14 an attorney at the outset of his interrogation. Ellison testified that he had, in fact, made 15 such a request. Detective Watson, in contrast, testified that (1) during the initial portion of 16 the interrogation, which Detective Watson had attempted to surreptitiously record using a 17 hidden tape recorder, Ellison stated “I think I might want a lawyer”; (2) after this portion 18 of the interrogation was over, Detective Watson realized that the cassette in the tape 19 recorder was blank; (3) Detective Watson then returned to the jail in an attempt to get “the 20 highlights of the interview clarified on tape”;20 (4) during this re-interview, which was 21 22 19 In Napue, the Supreme Court held that “a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth 23 Amendment.” 360 U.S. at 269. “A claim under Napue will succeed when ‘(1) the 24 testimony (or evidence) was actually false, (2) the prosecution knew or should have known that the testimony was actually false, and (3) the false testimony was material.’” Sivak, 25 658 F.3d at 908-09 (quoting Jackson v. Brown, 513 F.3d 1057, 1071-72 (9th Cir. 2008)). 26 20 Detective Watson further testified that he was “very upset” when he realized that the first session hadn’t been recorded and that “[t]he truth of the matter is . . . I wanted it 27 clear on tape that I Mirandized him [Ellison], that he had stated—made it an inference that 28 he wanted an attorney, and that he had made it very clear to us, because I knew that was going to be an issue later at trial. That was what upset me the most was the fact that that

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1 recorded and which occurred about 20-25 minutes after the first interview had ended,21 2 Detective Watson summarized Ellison’s statement during the initial interview as “you said 3 you wanted an attorney”; and (5) Detective Watson’s summary as reflected on the 4 recording was inaccurate because, as Detective Watson had earlier testified, Ellison 5 actually said “I think I might want a lawyer” during the first portion of the interview. 6 Detective Auld also testified during the suppression hearing and provided an account that 7 was consistent with Detective Watson’s. At the conclusion of the hearing, Judge Moon 8 rejected Ellison’s testimony as incredible and denied the suppression request. 9 In Claim 52, Ellison identifies two reasons why the suppression-hearing testimony 10 of Detectives Watson and Auld was false and, relatedly, why the prosecution’s presentation 11 of that false testimony should be deemed to have violated Napue: (1) the cassette; and (2) 12 the handwritten note. 13 a. The Cassette 14 Ellison’s first Napue theory involves the cassette from the first portion of his 15 interrogation (which, as noted, Detective Watson testified was blank, thus necessitating the 16 re-interview). According to Ellison, an expert retained by his habeas counsel has now 17 analyzed the original cassette and determined that it was not blank—instead, it contains a 18 brief portion “in which voices are discernable, followed by 25 minutes of an erased 19 recording.” (Doc. 21 at 312.) According to Ellison, this expert will further opine that “[t]o 20 do this, the officers would have had to knowingly record over the interrogation—it could 21 not have been the mishap of failing to press record that Watson described in his testimony.” 22 (Doc. 38 at 164.) Thus, Ellison contends, “Watson’s and Auld’s testimony about the 23 ‘blank’ tape was false. The correct and truthful testimony would have been that Watson 24 did not fail to press record, the recording was in fact not blank, there was an audible portion 25 of the recording, and the recorded interrogation was erased.” (Doc. 21 at 312.) 26 27 was going to be contested and we didn’t have that clearly laid out on the recorded interview.” (RT 7/20/99 at 59.) 28 21 See RT 7/20/99 at 37-38 (Detective Watson, agreeing to this timeframe).

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1 In response, Respondents raise an array of reasons why Ellison should not be 2 granted habeas relief based on the audio cassette component of Claim 52. (Doc. 30 at 215- 3 23.) Because the Court agrees that two of those reasons are independently dispositive, it 4 is unnecessary to reach Respondents’ other arguments. 5 Ellison acknowledges he did not raise a Napue claim based on the audio cassette 6 during his state-court proceedings. (Doc. 21 at 315 [“The above allegations regarding 7 Auld’s and Watson’s false testimony were not raised in state court.”].) As a result, 8 Respondents argue this claim is procedurally defaulted. (Doc. 30 at 216.) Ellison, 9 meanwhile, contends he can establish the cause and prejudice necessary to overcome the 10 procedural default. (Doc. 21 at 315-17.) As for the cause requirement, Ellison’s theory is 11 that “the reason for his failure to develop [the claim] was the State’s suppression of the 12 relevant evidence.” (Id., quoting Banks v. Dretke, 540 U.S. 668, 691 (2004).) More 13 specifically, Ellison argues in his habeas petition that the prosecution never produced 14 during discovery (or otherwise made available to him during discovery) the original 15 version of the audio cassette that his expert has now analyzed—instead, the prosecution 16 only produced a purported copy of the audio cassette, which did not contain proof of the 17 erasure. (Doc. 21 at 313 [“As part of discovery, trial counsel was provided a copy of the 18 microcassette by the State, which was then passed on to postconviction counsel. That copy, 19 it turns out, was not properly dubbed and did not accurately represent what was on the 20 original. When trial counsel’s copy is played there are no audible voices and therefore no 21 clear indication that the tape was not ‘blank.’”]; id. at 318-19 [arguing, in relation to Claim 22 53, that the prosecution “fail[ed] to provide trial counsel with . . . a proper copy of the 23 original microcassette recording of Ellison’s first interrogation” and that “[a]lthough the 24 State did provide a copy to trial counsel, it was not dubbed correctly, so none of the audio 25 was recognizable as voices”].)22 However, in his reply, Ellison acknowledges in a footnote 26 22 See also Doc. 21 at 314 (“[T]he original microcassette from the first interrogation 27 . . . was sealed in an envelope and entered into Kingman Police Department as item LSW33. 28 But LSW33 was not stored with all the other police evidence in the case. Instead, the item had been stored in the prosecutor’s file in the Mohave County Attorney’s Office.”).

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1 that the factual assertions on this issue in his petition are inaccurate: 2 In the Petition, Ellison referred to one copy of the microcassette containing 3 the first interrogation that was improperly dubbed. Undersigned counsel believed at the time that this was the only copy of the first interrogation 4 provided to defense counsel and that it was provided to trial counsel 5 specifically. Since the Petition was filed, undersigned counsel discovered another cassette in previous counsel’s files. It is unclear at this time which 6 of these copies were provided to trial counsel and which to postconviction 7 counsel. The newly discovered cassette seems to begin with part of the recording of the first interrogation followed by the full recording of the 8 second interrogations. This is all on one side of the cassette; the other side 9 is blank. The cassette seems to include only a portion of the first interrogation, and then it continues onto the recording of the second 10 interrogation. Because both recordings were put on the same side and the copy of the recording of the first interrogation is truncated, without having 11 listened separately to an accurate copy of the first interrogation this dual copy 12 does not alert the listener as to what if any part of the audible portion came from the first interrogation. 13 14 (Doc. 38 at 163 n.26, citations omitted and emphasis added.) Nevertheless, Ellison argues 15 that if “this claim should have been raised postconviction, . . . Ellison will demonstrate that 16 postconviction counsel was ineffective in failing to raise this claim.” (Id. at 165.)23 17 In light of the clarification in his reply, Ellison has not demonstrated the cause 18 necessary to overcome the procedural default of his Napue claim based on the audio 19 cassette. Although “the state’s suppression” of evidence can “establish[] cause . . . when 20 it is the reason for [a habeas petitioner’s] failure to develop facts in state court 21 proceedings,” Henry v. Ryan, 720 F.3d 1073, 1082 (9th Cir. 2013), that principle is 22 inapplicable here because the original audio cassette was not suppressed from Ellison in a 23 manner that prevented him from developing his Napue claim during the state-court 24 proceedings. To the contrary, the original audio cassette was provided to Ellison’s state- 25 court counsel, who nevertheless failed to retain an expert to perform sort of analysis and 26 23 Ellison makes the same argument in his request for evidentiary development: “[I]f 27 the State did not suppress this information, then the failure to present it to the state courts 28 resulted from the ineffective assistance of postconviction counsel, which in turn provides cause for the default and establishes prejudice.” (Doc. 41 at 40-41 n.6.)

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1 testing that Ellison has now (via his habeas counsel) retained an expert to perform. Under 2 these circumstances, Ellison cannot argue that the state’s suppression of evidence qualifies 3 as cause to excuse the procedural default of his claim. Henry, 720 F.3d at 1083-85 4 (concluding that habeas petitioner failed to show that suppression established cause for the 5 procedural default of a Brady claim because he “had evidentiary support for his claim more 6 than a decade before commencing federal habeas proceedings” and noting, in relation to a 7 related Napue claim, that because “[t]he facts underlying this claim were developed not by 8 analyzing evidence that was produced in federal habeas proceedings, but rather by [the] 9 analysis [by experts retained by habeas counsel] of evidence that had been in Henry’s 10 possession for years,” “[t]he factual predicate for this claim could previously have been 11 discovered through diligence”). 12 As for Ellison’s fallback argument that the ineffective assistance of his PCR counsel 13 (presumably, in not retaining an expert to perform the sort of testing on the audio cassette 14 that Ellison’s habeas counsel have now retained an expert to perform) qualifies as cause to 15 overcome the procedural default of his Napue claim, that argument is foreclosed by Ninth 16 Circuit law. Martinez, 926 F.3d at 1225 (“[I]neffective assistance of PCR counsel can 17 constitute cause only to overcome procedurally defaulted claims of ineffective assistance 18 of trial counsel.”). 19 Finally, separate from the issue of cause, Ellison also cannot establish prejudice in 20 relation to the audio cassette. Frost v. Gilbert, 835 F.3d 883, 889-90 (9th Cir. 2016) 21 (affirming denial of habeas relief because petitioner had only demonstrated cause, but not 22 prejudice, as to procedurally defaulted Napue and Brady claims); Sivak, 658 F.3d at 914 23 (“[T]here was no prejudice during the guilt phase on account of the Napue and Brady 24 violations.”). As Respondents correctly note, Ellison’s tape-erasure theory is based on a 25 series of highly speculative inferences, including that “the deleted audio would have 26 actually refuted Watson’s and Auld’s testimonies during the voluntariness hearing— 27 instead of verifying their testimonies.” (Doc. 30 at 220-21.) Indeed, the premise 28 underlying Ellison’s tape-erasure theory is that Detective Watson must have realized that

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1 Ellison’s unqualified request for counsel during that interview posed a Miranda problem 2 and thus felt it necessary to erase the evidence of that request (the tape from the first 3 interview) and return to the jail for another recorded interview. Otherwise, there would 4 have been no reason to conduct the second interview. But in that hypothetical scenario, 5 the scheming, evidence-destroying officer would surely make a point of clarifying during 6 the second interview that the suspect’s request for counsel during the first interview was 7 equivocal (and thus insufficient to trigger Miranda). Why else go to the trouble of erasing 8 the recording of the first interview? Here, unlike in the hypothetical scenario, the recording 9 from the second interview is not favorable to law enforcement with respect to the Miranda 10 issue—on the recording, Detective Watson describes Ellison’s request for counsel during 11 the first interview as unequivocal (“you said you wanted an attorney”). It makes no sense 12 that Detective Watson would have erased the recording of the first interview containing 13 that statement just to turn around and make another recording of himself attributing the 14 same statement to Ellison. 15 b. The Handwritten Note 16 The other basis for Ellison’s Napue claim is a handwritten note that the original 17 prosecutor, Craig Friesner, made on an intake summary form on the day Detectives Watson 18 and Auld interviewed Ellison. The passage at issue, an excerpt from several pages of 19 shorthand notes, reads: 20 Slinger fd in van 21 I th “I want a lawyer” 22 Then: “I’ll talk” 23 (Doc. 21 at 313; see Doc. 42-5 at 54, Ex. 19, ¶ 2 [actual note].) According to Ellison, this 24 note constitutes Friesner’s “contemporaneous record of what Watson reported to Friesner 25 about what happened in the interrogation of Ellison.” (Doc. 38 at 164.) Ellison contends 26 this evidence shows that Detectives Watson and Auld lied when they testified that Ellison 27 said “I think I might want a lawyer” instead of “I want a lawyer.” (Doc. 21 at 313-15.) 28 Ellison acknowledges he did not raise a Napue claim based on the handwritten note

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1 during his state-court proceedings. (Doc. 21 at 315.) As a result, and as with the Napue 2 claim based on the audio cassette, Respondents argue this claim is procedurally defaulted. 3 (Doc. 30 at 216.) Ellison, in turn, contends once again that he can overcome the procedural 4 default by showing cause and prejudice, with cause established via the state’s suppression 5 of evidence. (Doc. 21 at 315-17.) 6 The suppression analysis is complicated by the fact that the parties seem to disagree 7 about whether the handwritten note was disclosed to Ellison’s trial counsel. In his petition, 8 Ellison asserts that “the State failed to disclose the Mohave County Attorney’s Office 9 Intake Summary . . . . It was simply never given to trial counsel.” (Doc. 21 at 329.) In 10 response, Respondents contend that, “[a]s an initial matter, Ellison has not even 11 demonstrated that the State did not disclose purported information from the previous 12 prosecutor[].” (Doc. 30 at 227.) In reply, Ellison asserts: “[Respondents] offer conjecture 13 that the Intake Summary was not suppressed and that trial counsel may have received a 14 copy. Respondents however do not point to any trial disclosure by the State to demonstrate 15 that the Intake Summary was provided to trial counsel, which is the only way trial counsel 16 could have obtained it. The copy of the State disclosures in the defense files does not 17 include the Intake Summary. There was no copy of the Intake Summary in any of defense 18 files received by undersigned counsel. Undersigned counsel obtained the summary when 19 they obtained the Mohave County Attorney’s file from that office. Respondents therefore 20 fail to demonstrate the summary was not suppressed.” (Doc. 38 at 166-67.) 21 The Court finds it unnecessary to resolve this issue (or hold an evidentiary hearing 22 to develop it further) because, even assuming the handwritten note was suppressed in a 23 manner that establishes cause for the procedural default, Ellison has failed to show 24 prejudice. To prevail on his Napue claim, Ellison would need to show, among other things, 25 that Detectives Watson and Auld knew they were testifying falsely when they testified 26 during the suppression hearing that Ellison stated “I think I might want a lawyer” during 27 the interrogation, rather than “I want a lawyer.” Henry, 720 F.3d at 1084 (“We need not 28 reach the question of whether Detective Patterson’s knowledge must be imputed to the

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1 prosecution, because we agree with the district court that Henry has not established that 2 Patterson knowingly provided false testimony during trial.”). Friesner’s handwritten note 3 does not establish that the detectives’ testimony on this point was knowingly false. At 4 most, the note suggests that when Detective Watson initially described the interrogation to 5 Friesner, he summarized Ellison’s testimony in the same manner he summarized it during 6 the recorded second interview (i.e., as an unqualified request for a lawyer). But as 7 discussed, Detective Watson testified that this summary was inaccurate and that Ellison’s 8 words were, in fact, “I think I might want a lawyer.” Judge Moon, who was aware that 9 Detective Watson had provided inconsistent descriptions of Ellison’s statement, still 10 credited Detective Watson’s testimony. Given this backdrop, the handwritten note from 11 Friesner does not establish that Detectives Watson and Auld knowingly lied when 12 testifying about Ellison’s statement. Henry, 720 F.3d at 1084 (“Although Henry has 13 provided evidence rebutting Patterson’s version of the facts, he has provided no evidence 14 that Patterson knew his testimony was inaccurate at the time he presented it, rather than 15 Patterson’s recollection merely being mistaken, inaccurate or rebuttable. Henry’s 16 conclusory assertion that, because Patterson must have known where he stepped while 17 investigating the crime scene, any testimony inconsistent with the truth must be not only 18 inaccurate but also perjured does not constitute evidence sufficient to make out a Napue 19 claim.”). See also United States v. Rampoldi, 825 F. App’x 490, 490-91 (9th Cir. 2020) 20 (rejecting Napue claim: “Rampoldi failed to show the witness’s testimony was false, as 21 opposed to merely inconsistent, and the witness attempted to explain the apparent 22 inconsistencies. Rampoldi at most points to evidence creating an inference of falsity, 23 which is not sufficient. Moreover, defense counsel extensively and effectively cross- 24 examined Weigand about the alleged inconsistencies.”) (cleaned up); United States v. 25 Renzi, 769 F.3d 731, 752 (9th Cir. 2014) (“We also question whether Renzi met the first 26 two prongs of the Napue test. Mere inconsistencies or honestly mistaken witness 27 recollections generally do not satisfy the falsehood requirement.”). 28 …

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1 2. Vivian Brown 2 Ellison’s other Napue theory relates to the testimony of the victims’ daughter, 3 Vivian Brown. At both the guilt and sentencing phases of trial, Brown testified that in 4 October 1997 she was present on the patio of her parents’ house while her mother spoke 5 with a man Brown later identified as Ellison, who had been doing repair work on a wall in 6 the Bouchers’ backyard. (RT 1/15/02 at 47-50; RT 2/6/04 at 107-08.) According to Brown, 7 Ellison commented on the view from the Bouchers’ yard, noting that you could see all of 8 Kingman. (RT 1/15/02 at 49-50.) Brown also testified that she saw Ellison a second time, 9 working on an electrical box at a home two doors down from her parents’ house. (RT 10 1/15/02 at 51; RT 2/6/04 at 131-32.) At the guilt phase of trial, she testified that this second 11 sighting of Ellison occurred during the monsoon season of 1998, on a warm day, possibly 12 in July or August. (RT 1/15/02 at 51.) At the sentencing phase, she testified that the 13 sighting could have happened in April or May of 1998. (RT 2/6/04 at 132.) 14 As part of Claim 52, Ellison argues that Brown’s testimony about seeing him a 15 second time in 1998 was necessarily false because he was in custody throughout that year, 16 being released in January 1999. (Doc. 317-18.) Ellison further argues that Napue is 17 implicated because the prosecutor, who had possession of his prison records, must have 18 known that he was incarcerated during that period. (Id.) 19 An initial question raised in the parties’ briefing is whether this claim is procedurally 20 defaulted. Ellison contends it is not because he “raised the Napue claim related to Brown’s 21 false testimony in his [PCR] petition and in his petition for review.” (Doc. 21 at 317.) 22 Respondents, meanwhile, contend that “Claim 52 is procedurally defaulted . . . because 23 Ellison failed to present it in state court, and he has not established any excuse to overcome 24 the default.” (Doc. 30 at 215.) Respondents do not, however, seem to acknowledge 25 Ellison’s contention that he raised a Napue claim related to Brown during his PCR 26 proceedings. (Id. at 215-24.) In reply, Ellison clarifies that he does not concede a lack of 27 exhaustion as to this claim. (Doc. 38 at 165.) 28 The Court agrees with Respondents that Ellison’s Napue claim related to Brown’s

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1 testimony is procedurally defaulted without excuse. During his direct appeal, Ellison did 2 not raise a Napue claim related to Brown’s testimony. Thus, under Arizona Rule of 3 Criminal Procedure 32.2, he was precluded from raising such a claim in a PCR proceeding. 4 See, e.g., Cotham v. Shinn, 2022 WL 20595113, *15 (D. Ariz. 2022) (“Petitioner asserts a 5 Napue claim alleging he was denied a fair trial because the prosecutor ‘knowingly 6 presented perjured testimony.’ Petitioner did not raise this claim on appeal. Petitioner 7 raised it in his PCR petition but the PCR court determined it was precluded under Ariz. R. 8 Crim. P. 32.2. The Arizona Court of Appeals found no abuse of discretion in that 9 determination. The claim is therefore expressly procedurally defaulted.”) (citations 10 omitted). Presumably for this reason, Ellison’s PCR petition did not raise a standalone 11 Napue claim. Instead, Ellison raised a claim of “Ineffective Assistance at the Guilt Phase” 12 and then argued, in one of the subheadings in this section of his petition, that his trial 13 counsel engaged in ineffective assistance by failing to obtain his jail records, which could 14 have been used to impeach Brown. (PCR Pet. at 62, 73-75). Admittedly, this portion of 15 the petition also included several references to Napue and an assertion that “the prosecutor 16 let his witness testify more than once to a fact he knew was incorrect.” (Id. at 73-75.) 17 However, the PCR court did not construe the PCR petition as raising a Napue claim— 18 instead, the court construed Ellison’s arguments on this point as raising a claim of 19 ineffective of counsel and then summarily denied relief because the issue was “of little 20 moment or relevance to guilt or punishment.” (PCR Ruling, 7/16/12 at 5.) Given this 21 backdrop, it cannot be said that Ellison exhausted his Napue claim as required by Arizona 22 law. 23 Alternatively, Ellison would not be entitled to habeas relief on this claim even if it 24 were exhausted. If, as Ellison contends, the PCR court considered and rejected his Napue 25 claim on the merits, then § 2254(d)’s deferential standard of review would apply. Under 26 that standard, Ellison would bear the heavy burden of establishing that the PCR court’s 27 decision was contrary to or an unreasonable application of clearly established federal law 28 or based on an unreasonable determination of the facts. Ellison has not met that burden

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1 here. In particular, under the third prong of Napue, Ellison was required to establish a 2 “reasonable likelihood” that the introduction of Brown’s false testimony about the date of 3 the second sighting “could have affected the judgment of the jury.” Jackson, 513 F.3d at 4 1076. Although this is not a particularly exacting standard, it also “does not create a per 5 se rule of reversal.” Id. (cleaned up). It would not have violated § 2254(d) for the state 6 court to conclude that Ellison failed to make the required showing on that issue. The 7 significant date in Brown’s testimony was October 1997, when she observed Ellison 8 speaking with her mother at her parents’ home. This established that Ellison was familiar 9 with the Kingman location, the victims, and their house. Her testimony that she later saw 10 Ellison in 1998, at a different location in the neighborhood, was cumulative. Even if the 11 second sighting could not have occurred during the timeframe she described, impeaching 12 her on this point would have done little to impeach her testimony that she saw Ellison at 13 her parents’ home in 1997, especially given she acknowledged that she got a much better 14 look at him during that first encounter than when she saw him the second time. (RT 1/15/02 15 at 92.) Brown also testified that Ellison recognized her as the Bouchers’ daughter when 16 she spoke to him in person following his arrest, despite there being no intervening contact 17 between them. (Id. at 94.) This supports Brown’s testimony that the two met in October 18 1997. Finally, it cannot be overlooked that the evidence of guilt in this case included 19 Ellison’s recorded confession. See, e.g., Juniper v. Davis, 74 F.4th 196, 246 (4th Cir. 20 2023) (“[T]here is no reasonable likelihood that this evidence could have affected the 21 judgment of the jury. It in no way undermines the significant forensic evidence against 22 Juniper, Smith’s testimony of hearing a confession, or the independent testimony of Rashid 23 and Mings. And it only slightly undermines the credibility of the police and Murray. No 24 reasonable juror who voted to convict based on the evidence presented at trial would 25 change their vote based on the Napue evidence presented in this case.”); Sivak, 658 F.3d at 26 913-14 (“In light of this strong evidence of guilt under either a direct felony-murder theory 27 or an aiding-and-abetting felony murder theory, the Napue violations could not have 28 changed the jury’s guilt determination.”); United States v. Mickling, 642 F.App’x 821, 825-

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1 26 (10th Cir. 2016) (finding no plain error even assuming a Napue violation where a 2 witness falsely testified that she met the defendant in 2010, a period when he was 3 incarcerated, because the focus of the case and witnesses’ testimony was on 2013 when the 4 defendant was arrested). 5 N. Claim 53 6 In Claim 53, Ellison alleges that the State violated its duty under Brady v. Maryland, 7 373 U.S. 87 (1963), to disclose relevant and material evidence. (Doc. 21 at 318-21.) More 8 specifically, Ellison contends that the State “fail[ed] to provide trial counsel with [1] the 9 Mohave County Attorney Office’s Intake Summary and [2] a proper copy of the original 10 microcassette recording of Ellison’s first interrogation, and [3] to disclose the fact that the 11 recording of Ellison’s first interrogation had been erased.” (Id. at 318, brackets added.)24 12 Ellison acknowledges that “[t]his claim was not raised in state court.” (Id. at 321.) As a 13 result, Respondents contend the claim is procedurally defaulted without excuse. (Doc. 30 14 at 224.) 15 The Brady analysis regarding Friesner’s handwritten note in some ways mirrors the 16 Napue analysis regarding the note. Even assuming for the sake of argument that the note 17 was suppressed, which could qualify as cause for the procedural default, Ellison has not 18 established prejudice due to his failure to establish the materiality element of his Brady 19 claim—that is, “a reasonable probability that, had the [note] been disclosed to the defense, 20 the result of the proceeding would have been different.” Bagley, 473 U.S. at 682. See also 21 Banks, 540 U.S. at 691 (“[C]oincident with the third Brady component (prejudice), 22 prejudice within the compass of the ‘cause and prejudice’ requirement exists when the 23 suppressed evidence is ‘material’ for Brady purposes.”). As discussed elsewhere, Judge 24 25 24 Brady requires the State to disclose material evidence favorable to the defense. 26 373 U.S. at 87. To succeed on a Brady claim, a petitioner bears the burden of showing that the evidence was (1) favorable to the accused, either as exculpatory or impeachment 27 evidence; (2) suppressed by the prosecution, either willfully or inadvertently; and (3) 28 material, so that prejudice to the defense resulted from its suppression. Strickler v. Greene, 527 U.S. 263, 281-82 (1999).

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1 Moon (the factfinder during the suppression hearing) was fully aware that Detective 2 Watson had provided conflicting accounts of Ellison’s statement during the interrogation— 3 although Detective Watson testified during the suppression hearing that Ellison said “I 4 think I might want a lawyer” (RT 7/20/99 at 12), Detective Watson described this very 5 same statement as “you said you wanted an attorney” during the recorded second interview 6 (id. at 26). During the suppression hearing, Detective Watson was confronted with 7 discrepancy and avowed that the correct version was “I think I might want a lawyer.” (Id. 8 at 26-27.) After hearing that testimony, as well as Ellison’s contrary account, Judge Moon 9 accepted Detective Watson’s account and rejected Ellison’s. (RT 11/23/99 at 49-50 [“I 10 find that [Ellison] did not clearly invoke his right to an attorney or request an attorney, but 11 he made an equivocal statement to the effect that he thought he might want an attorney 12 . . . . And that Detective Watson’s testimony about that exchange is the more credible 13 evidence.”].) Notably, this determination was based in part on Judge Moon’s incredulity 14 that Ellison would have been confused about how the interrogation process works in light 15 of Ellison’s familiarity with the criminal justice system. (Id. at 49 [“I find the defendant’s 16 testimony to be highly suspect for a few reasons. No. 1, because of his prior felony 17 convictions.”].) Given this background, there is not a “reasonable probability” that Judge 18 Moon would have reached a different decision during the suppression hearing had he been 19 aware that Detective Watson provided Friesner with the same (inaccurate) summary of 20 Ellison’s statement that Detective Watson provided during the second recorded interview. 21 United States v. Marashi, 913 F.2d 724, 732 (9th Cir. 1990) (rejecting Brady claim, even 22 though government had suppressed notes that contained evidence of an inconsistent 23 statement by a witness, because the government had produced other evidence of the witness 24 making the same inconsistent statement and the witness had been impeached with that 25 evidence at trial: “Well before trial, the government provided Marashi the transcript of 26 Smith’s July 18, 1985 statement to the IRS which contained a reference to patient ledger 27 cards virtually identical to that in Agent Abrahamson’s notes. In this light, the notes 28 contained merely cumulative impeachment evidence and thus are not Brady material.”).

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1 Turning to the next piece of allegedly suppressed evidence—“a proper copy of the 2 original microcassette recording of Ellison’s first interrogation”— the Brady analysis again 3 mirrors that Napue analysis. In light of Ellison’s acknowledgement in his reply that the 4 audio tape was provided to his counsel during the state-court proceedings, the evidence 5 was not suppressed within the meaning of Brady. Thus, Ellison cannot establish cause for 6 the procedural default. Banks, 540 U.S. at 691 (“Corresponding to the second Brady 7 component (evidence suppressed by the State), a petitioner shows ‘cause’ when the reason 8 for his failure to develop facts in state-court proceedings was the State's suppression of the 9 relevant evidence . . . .”). Separately, Ellison has not established prejudice for the reasons 10 discussed in relation to his Napue claim—it is nonsensical that Detective Watson would 11 have intentionally deleted the recording of the first interview during the 20-25 minute 12 interval between the first and second interviews just so he could return to the jail and make 13 another recording of himself attributing, to Ellison, to very same statement he had just 14 taken pains to delete. 15 Finally, to the extent Ellison argues that “the fact that the recording of Ellison’s first 16 interrogation had been erased” qualifies as a distinct basis for his Brady claim (Doc. 21 at 17 318), this claim fails for the same reasons as his Brady claim premised on the “proper copy” 18 of the original cassette—first, he cannot show cause in light of the State’s production of 19 the original cassette during his state-court proceedings (which, according to his theory, 20 contains evidence of the erasure); and second, he cannot show prejudice in light of the 21 nonsensical nature of his erasure theory and his possession and use of other evidence 22 (namely, the recording of the second interview) that could be used to impeach Detective 23 Watson’s testimony about what was said during the first interview. 24 O. Claim 55 25 In Claim 55, Ellison alleges that the State committed prosecutorial misconduct in 26 violation of his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Doc. 27 21 at 322-25.) More specifically, Ellison argues that “[t]he prosecutor in Ellison’s case 28 engaged in multiple acts of misconduct. The prosecutor failed to investigate, disclose, or

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1 timely disclose material evidence. The prosecutor knowingly or with implied knowledge 2 elicited false testimony and evidence or allowed false testimony and evidence to go 3 uncorrected. The prosecutor also argued different theories at Finch’s trial than he did at 4 Ellison’s. . . . The prosecutor failed to maintain or supervise the proper handling and 5 maintenance of crucial evidence, specifically the microcassette from the first interrogation 6 of Ellison. In postconviction, the prosecutor continued to represent the State despite 7 conflicts of interest. . . . Moreover, and as discussed throughout this petition, the prosecutor 8 introduced hearsay testimony and evidence in violation of Ellison’s fair trial, due process, 9 and confrontation rights, and which violated the rules of court and evidence which protect 10 those constitutional rights.” (Id., citations omitted.) 11 Ellison acknowledges he did not raise this claim in state court. (Id. at 322.) He 12 argues that the “deficient performance of state court counsel,” including trial and PCR 13 counsel, excuses the claim’s default. (Id.) In response, Respondents contend that PCR 14 “counsel’s alleged ineffectiveness cannot serve as cause to excuse the procedural defaults 15 because the underlying claims do not allege trial counsel’s ineffectiveness. And appellate 16 counsel’s alleged ineffectiveness cannot constitute cause because that claim is itself 17 procedurally defaulted and Ellison has not excused the default.” (Doc. 30 at 231.) 18 Respondents are correct. Ellison did not exhaust independent claims that either trial 19 or appellate counsel was ineffective by failing to raise a claim of prosecutorial misconduct. 20 Therefore, ineffective assistance of trial or appellate counsel cannot serve as cause for the 21 underlying claim’s default. Carpenter, 529 U.S. at 453 (“[A]n ineffective-assistance-of- 22 counsel claim asserted as cause for the procedural default of another claim can itself be 23 procedurally defaulted . . . .”); Cockett v. Ray, 333 F.3d 938, 943 (9th Cir. 2003) (“To 24 constitute cause for procedural default of a federal habeas claim, the constitutional claim 25 of ineffective assistance of counsel must first have been presented to the state courts as an 26 independent claim. Because Cockett’s claim of ineffective assistance of trial counsel was 27 procedurally defaulted, trial counsel’s performance cannot constitute cause.”) (citation 28 omitted). Again, Martinez applies only to claims of ineffective assistance of trial counsel,

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1 so PCR counsel’s performance in failing to raise this claim does not excuse its default. 2 Martinez, 926 F.3d at 1225; Pizzuto, 783 F.3d at 1177; Hunton, 732 F.3d at 1126-27. Claim 3 55 is therefore procedurally defaulted and barred from federal review. 4 P. Claim 45(D) 5 Claim 45 consists of allegations that defense counsel performed ineffectively during 6 both phases of Ellison’s trial. (Doc. 21 at 210.) In Claim 45(D), Ellison alleges six forms 7 of ineffective assistance during the guilt phase. (Id. at 275-87.) 8 1. Clearly Established Federal Law 9 Claims of ineffective assistance of counsel are governed by the principles set out in 10 Strickland v. Washington, 466 U.S. 668 (1984). “The benchmark for judging any claim of 11 ineffectiveness must be whether counsel’s conduct so undermined the proper functioning 12 of the adversarial process that the trial cannot be relied on as having produced a just result.” 13 Id. at 686. To prevail under Strickland, a petitioner must show that counsel’s representation 14 fell below an objective standard of reasonableness and the deficiency prejudiced the 15 defense. Id. at 687-88. Unless both showings are made, “it cannot be said that a conviction 16 or death sentence resulted from a breakdown in the adversary process that renders the result 17 unreliable.” Id. at 687. 18 The inquiry under Strickland is highly deferential. Id. at 689. “A fair assessment 19 of attorney performance requires that every effort be made to eliminate the distorting 20 effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and 21 to evaluate the conduct from counsel’s perspective at the time.” Id. The “standard is 22 necessarily a general one,” Bobby v. Van Hook, 558 U.S. 4, 7 (2009), because “[n]o 23 particular set of detailed rules for counsel’s conduct can satisfactorily take account of the 24 variety of circumstances faced by defense counsel or the range of legitimate decisions 25 regarding how best to represent a criminal defendant,” Strickland, 466 U.S. at 688–89. 26 Deficient performance is established by “showing that counsel made errors so 27 serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the 28 Sixth Amendment.” Id. at 687. To make this showing, a petitioner must overcome “the

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1 presumption that, under the circumstances, the challenged action might be considered 2 sound trial strategy.” Id. at 689 (quotation omitted). 3 “The question is whether an attorney’s representation amounted to incompetence 4 under ‘prevailing professional norms,’ not whether it deviated from best practices or most 5 common custom.” Richter, 562 U.S. at 105 (quoting Strickland, 466 U.S. at 690). “The 6 defendant bears the heavy burden of proving that counsel’s assistance was neither 7 reasonable nor the result of sound trial strategy.” Murtishaw, 255 F.3d at 939 (citing 8 Strickland, 466 U.S. at 689). “[T]he relevant inquiry . . . is not what defense counsel could 9 have pursued, but rather whether the choices made by defense counsel were reasonable.” 10 Murray, 745 F.3d at 1011 (quoting Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 11 1998)). 12 With respect to Strickland’s second prong, a petitioner must affirmatively prove 13 prejudice by “show[ing] that there is a reasonable probability that, but for counsel’s 14 unprofessional errors, the result of the proceeding would have been different. A reasonable 15 probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 16 466 U.S. at 694. “The likelihood of a different result must be substantial, not just 17 conceivable.” Richter, 562 U.S. at 112 (citing Strickland, 466 U.S. at 693). The petitioner 18 “bears the highly demanding and heavy burden [of] establishing actual prejudice.” Allen 19 v. Woodford, 395 F.3d 979, 1000 (9th Cir. 2005) (quoting Williams, 529 U.S. at 394). The 20 strength of the prosecution’s case factors into the determination of prejudice. Strickland, 21 466 U.S. at 696 (“[A] verdict or conclusion only weakly supported by the record is more 22 likely to have been affected by errors than one with overwhelming record support.”); Riley 23 v. Payne, 352 F.3d 1313, 1321 n.8 (9th Cir. 2003) (“[O]ur evaluation of Strickland 24 prejudice must be considered in light of the strength of the government’s case.”). 25 Under AEDPA, claims of ineffective assistance of counsel are subject to two layers 26 of deference. “Surmounting Strickland’s high bar is never an easy task,” Padilla v. 27 Kentucky, 559 U.S. 356, 371 (2010), and “[e]stablishing that a state court’s application of 28 Strickland was unreasonable under § 2254(d) is all the more difficult,” Richter, 562 U.S.

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1 at 105; see also Burt v. Titlow, 571 U.S. 12, 15 (2013) (under AEDPA, the reviewing court 2 “gives both the state court and the defense attorney the benefit of the doubt”). “When 3 § 2254(d) applies, the question is not whether counsel’s actions were reasonable. The 4 question is whether there is any reasonable argument that counsel satisfied Strickland’s 5 deferential standard.” Richter, 562 U.S. at 105; see also Knowles v. Mirzayance, 556 U.S. 6 111, 123 (2009) (discussing the “doubly deferential judicial review that applies to a 7 Strickland claim under the § 2254(d)(1) standard”). Therefore, the “only question that 8 matters” under § 2254(d) is whether the state court’s decision was “so obviously wrong as 9 to be ‘beyond any possibility for fairminded disagreement.’” Kayer, 592 U.S. at 112 10 (quoting Richter, 562 U.S. at 102, 103); see also Woodford v. Visciotti, 537 U.S. 19, 27 11 (2002) (“The federal habeas scheme . . . authorizes federal-court intervention only when a 12 state-court decision is objectively unreasonable.”). 13 2. Analysis 14 Ellison raises six claims of guilt-phase ineffective assistance of counsel. (Doc. 21 15 at 275-87.) PCR counsel raised, and the PCR court denied on the merits, five of these 16 claims. (PCR Ruling, 7/16/12, at 5-6.) 17 a. Change Of Venue/Voir Dire 18 Ellison alleges that trial counsel performed ineffectively by failing to adequately 19 voir dire the jury or move for a change of venue. (Doc. 21 at 276-77.) The PCR court 20 rejected this claim, finding that counsel’s failure to conduct a more detailed voir dire was 21 a matter of “trial strategy” and noting that the jurors completed a “detailed questionnaire” 22 and “the trial judge conducted a thorough voir dire independently of counsel’s questions.” 23 (PCR Ruling 7/16/12 at 5.) The PCR court also concluded that Ellison was not prejudiced 24 by counsel’s failure to move for a change of venue because jury deliberations took place 25 three years after the crime and there was “no evidence” that the jury was “affected by 26 pretrial publicity.” (Id. at 6.) 27 A motion for change of venue must be supported by evidence of presumed or actual 28 prejudice. Ainsworth v. Calderon, 138 F.3d 787, 795-96 (9th Cir. 1998). Ellison appears

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1 to argue that both presumed and actual prejudice warranted a change of venue. The PCR 2 court found that such evidence did not exist, so trial counsel did not perform ineffectively 3 in failing to move for a change of venue or in their conduct of voir dire. As explained 4 below, the PCR court’s conclusion as to this issue was reasonable, so habeas relief is not 5 warranted. 6 In deciding whether a defendant is entitled to a change of venue based on a 7 presumption of juror prejudice, a court considers “any indications in the totality of 8 circumstances that petitioner’s trial was not fundamentally fair.” Murphy v. Florida, 421 9 U.S. 794, 799 (1975). “The constitutional standard of fairness requires that a defendant 10 have ‘a panel of impartial, indifferent’ jurors.’” Id. (quoting Irvin v. Dowd, 366 U.S. 717, 11 722 (1961)). “Qualified jurors need not, however, be totally ignorant of the facts and issues 12 involved.” Id. at 799–800; see also State v. Bible, 858 P.2d 1152, 1166 (Ariz. 1993) (“Juror 13 exposure to information about an offense charged ordinarily does not raise a presumption 14 that a defendant was denied a fair trial.”). 15 Presumptive prejudice exists where the “trial atmosphere . . . was utterly corrupted 16 by press coverage.” Skilling v. United States, 561 U.S. 358, 380 (2010) (quoting Dobbert, 17 v. Florida, 432 U.S. 282, 303 (1977)); see also Bible, 858 P.2d at 1166 (prejudice is 18 presumed where “defendant can show pretrial publicity so outrageous that it promises to 19 turn the trial into a mockery of justice or a mere formality”). 20 Several factors are pertinent in determining whether presumed prejudice exists. 21 These include “the size and characteristics of the community in which the crime occurred”; 22 whether the associated media coverage included a “confession or other blatantly prejudicial 23 information of the type readers or viewers could not reasonably be expected to shut from 24 sight”; and the length of time that elapsed from the crime until the trial and the degree of 25 media coverage during that time. Skilling, 561 U.S. at 382-83. These factors demonstrate 26 that it was reasonable for the PCR court to conclude that a finding of presumed prejudice 27 was not warranted with respect to Ellison’s trial. 28 Kingman, with a population in the early 2000s of around 25,000, and Mohave

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1 County, with a then-population of around 185,000, are relatively small, but that factor is 2 not dispositive. In Bible, a case involving the murder of a nine-year-old child, the Arizona 3 Supreme Court rejected the appellant’s argument that the trial court erred in denying his 4 change-of-venue motion. The court explained that “[t]he burden to show that pretrial 5 publicity is presumptively prejudicial clearly rests with the defendant and is ‘extremely 6 heavy.’” 858 P.2d at 1167 (quoting Coleman v. Kemp, 778 F.2d 1487, 1537 (11th Cir. 7 1985)). The court first noted that “[b]ecause of the extensive pretrial publicity and the size 8 of Flagstaff and Coconino County (respective populations of approximately 45,000 and 9 100,000), nearly all potential jurors had some knowledge of the case.” Id. at 1166. The 10 court explained, however, that “for the most part” the news reports about the case were 11 “factually based.” Id. at 1167. Although other reports “discuss[ed] inadmissible evidence, 12 [were] inaccurate, or approach[ed] the ‘outrageous’ standard used in determining 13 presumptive prejudice,” they “were months apart and came months before the trial began” 14 and were “exceptions to the largely factual information in the great bulk of the news 15 reports.” Id. The court thus concluded that the appellant failed to carry his burden of 16 showing presumed prejudice from the extensive pretrial publicity. Id. at 1168. The pretrial 17 publicity in Ellison’s case was less problematic in extent and substance than that at issue 18 in Bible, and far less egregious than the publicity in the “rare and unusual cases where this 19 this difficult showing [presumed prejudice] has been made.” Id.25 20 25 21 The United States Supreme Court appears to have found presumed prejudice in only three cases: Rideau v. Louisiana, 373 U.S. 723 (1963); Estes v. Texas, 381 U.S. 532 (1965); 22 and Sheppard v. Maxwell, 384 U.S. 333 (1966). In Rideau, the defendant made a detailed 23 20-minute confession to robbery, kidnapping, and murder that was broadcast on television three times; nearly 100,000 people saw or heard the broadcast, in a community of 150,000. 24 373 U.S. at 724. In Estes, “reporters and television crews overran the courtroom and 25 ‘bombard[ed] . . . the community with the sights and sounds of’ the pretrial hearing. The media’s overzealous reporting efforts . . . led to considerable disruption” and denied the 26 “judicial serenity and calm to which [Billie Sol Estes] was entitled.” Skilling, 561 U.S. at 379–80 (quoting Estes, 381 U.S. at 536). In Sheppard, “massive, pervasive and prejudicial 27 publicity,” much of it not fact-based or objective but sensational and openly hostile, 28 prevented the defendant from receiving a fair trial. 384 U.S. at 335. “In addition, only three months before trial, Sheppard was examined for more than five hours without counsel

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1 Ellison refers to newspaper articles and transcripts of radio broadcasts that were 2 attached to Finch’s motion for a change of venue. (Doc. 21 at 276.) These materials date 3 to 1999, three years before Ellison’s trial. The only newspaper article Ellison directly cites 4 is dated March 17, 2001, or 10 months before jury selection in Ellison’s case, and reports 5 on the sentencing verdict in Finch’s trial. The reports were fact-based and unsensational, 6 in contrast to some of the articles in Bible and other cases where presumptive prejudice has 7 been found.26 Accordingly, a change of venue motion based on a presumption of prejudice 8 would have been futile, see Skilling, 561 U.S. at 382-83; Bible, 858 P.2d at 1167-68, and, 9 in fact, Judge Moon had denied such a motion in Finch’s case. 10 A motion seeking a change of venue based on actual prejudice would have fared no 11 better. “When a motion to change venue is based on actual prejudice resulting from pretrial 12 publicity, the defendant must show that the ‘prejudicial material will probably result in the 13 [defendant] being deprived of a fair trial.’” Bible, 858 P.2d at 1169 (quoting Ariz. R. Crim. 14 P 10.3(b)). “Actual prejudice . . . exists when voir dire reveals that the jury pool harbors 15 actual partiality or hostility against the defendant that cannot be laid aside.” Hayes v. Ayers, 16 632 F.3d 500, 508 (9th Cir. 2011) (quoting Harris v. Pulley, 885 F.2d 1354, 1363 (9th Cir. 17 1988) (cleaned up). “This inquiry focuses on the nature and extent of the voir dire 18 examination and prospective jurors’ responses to it.” Id. at 510 (citing Skilling, 561 U.S. 19 at 385-89). 20 Ellison contends that counsel performed ineffectively by failing to voir dire the 21 jurors about the effect of pretrial publicity. (Doc. 21 at 277.) He argues that prejudice is 22 demonstrated by the jurors’ awareness of the publicity. (Id.) He also asserts that the juror 23 questionnaire and the voir dire itself, which lasted four and a half hours (see RT 1/14/02), 24 25 during a three-day inquest which ended in a public brawl. The inquest was televised live from a high school gymnasium. . . .” Id. at 354. 26 26 Rather than sensationalizing the case, one of the radio reports cited in Finch’s 27 motion for a change of venue states that the police were seeking to “dispel rumors” based 28 on “false information” provided by one of the co-defendants that the murders were a gang- related hit. (PCR Pet., Ex. 13.)

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1 were insufficient. (Doc. 21 at 276-77.) These arguments are unavailing, particularly in 2 light of the deference owed to the PCR court’s contrary determination. 3 First, the fact that jurors were exposed to information about the case does not, alone, 4 deprive a defendant of due process. Skilling, 561 U.S. at 380; Murphy, 421 U.S. at 799 5 (rejecting “the proposition that juror exposure to information about a state defendant’s prior 6 convictions or to news accounts of the crime with which he is charged alone presumptively 7 deprives the defendant of due process”). Next, the Supreme Court has reiterated that “[n]o 8 hard-and-fast formula dictates the necessary depth or breadth of voir dire.” Skilling, 561 9 U.S. at 386. “Jury selection . . . is ‘particularly within the province of the trial judge.’” 10 Id. (quoting Ristaino v. Ross, 424 U.S. 589, 594-95 (1976)). “When pretrial publicity is at 11 issue, ‘primary reliance on the judgment of the trial court makes [especially] good sense’ 12 because the judge ‘sits in the locale where the publicity is said to have had its effect’ and 13 may base her evaluation on her ‘own perception of the depth and extent of news stories 14 that might influence a juror.’” Id. (quoting Mu’Min v. Virginia, 500 U.S. 415, 427 (1991)). 15 In Skilling, the petitioner argued that voir dire was insufficient with respect to 16 pretrial publicity because it lasted only five hours, the judge’s questions of the jurors were 17 conclusory, and the judge took the jurors at their word when they indicated they could be 18 fair. 561 U.S. at 387. The Supreme Court rejected this characterization, noting that the 19 trial court used a questionnaire to screen potential jurors and then questioned jurors 20 individually. Id. at 388. The result, the Court concluded, was an impartial jury. Id. at 398- 21 99. 22 The questionnaire filled out by Ellison’s prospective jurors included four questions 23 on pretrial publicity. (ROA, Vol. IV, Doc. 156.) The first such question described the 24 alleged crime and noted that Finch and Ellison were being tried separately. (Id.) The 25 questionnaire then asked whether the potential juror had “heard, discussed or read anything 26 about either case? If so, briefly describe the information you received.” (Id.) The next 27 question asked where the juror “obtained the information.” (Id.) The next question was, 28 “Based upon that information, have you formed any opinion or belief about what

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1 happened?” (Id.) Finally, the questionnaire asked whether the juror “feel[s] confident that 2 you can set aside that information, and any such opinion or belief, and reach a fair and 3 impartial verdict in this case based only on the evidence presented during trial?” followed 4 by “If not, why not?” (Id.) 5 During voir dire, Judge Moon questioned jurors who indicated they had received 6 information about the case from friends or from reading newspaper articles. (RT 1/14/02 7 at 25-26, 28, 161-62.) The court dismissed jurors who indicated they couldn’t set aside 8 what they had heard and judge the case from the evidence presented in court. (Id. at 26.) 9 These circumstances do not support a finding that counsel performed deficiently or 10 that Ellison suffered prejudice. The issue of pretrial publicity was addressed by the 11 questionnaire and the court’s follow-up questions during voir dire. Sechrest v. Baker, 816 12 F. Supp. 2d 1017, 1037-39 (D. Nev. 2011) (finding counsel not ineffective during voir dire 13 for failing to question the panel of prospective jurors regarding the effect of pre-trial 14 publicity, where jurors who admitted forming opinions about the case were excused, there 15 was no showing that any biased juror was seated, and petitioner did not identify any 16 additional action counsel should have taken), aff’d, 603 F.App’x 548 (9th Cir. 2015). 17 “The conduct of voir dire ‘will in most instances involve the exercise of a judgment 18 which should be left to competent defense counsel.’” Hovey v. Ayers, 458 F.3d 892, 909- 19 10 (9th Cir. 2006) (quoting Gustave v. United States, 627 F.2d 901, 906 (9th Cir. 1980)); 20 see also Wilson v. Henry, 185 F.3d 986, 991 (9th Cir. 1999) (no ineffective assistance 21 where counsel relied on jurors’ statements that they would be fair and follow the law, 22 without asking about their views on criminal history). Ellison contends there was no 23 support for the PCR court’s determination that counsel’s failure to conduct detailed voir 24 dire was a matter of trial strategy because “there was no evidence of such a strategy.” (Doc. 25 21 at 277.) But under Strickland, the presumption is that counsel’s action might be a matter 26 of sound trial strategy. 466 U.S. at 689; see also Fields v. Woodford, 309 F.3d 1095, 1108 27 (9th Cir. 2002) (“[W]e cannot say that failure to inquire beyond the court’s voir dire was 28 outside the range of reasonable strategic choice or that it would have affected the

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1 outcome.”). 2 Ellison also fails to show prejudice resulting from counsel’s performance. Prejudice 3 exists if counsel fails to question a juror during voir dire or move to strike a juror and that 4 juror is found to be biased, because this evinces “a reasonable probability that, but for 5 counsel’s unprofessional errors, the result of the proceeding would have been different.” 6 Fields v. Brown, 503 F.3d 755, 776 (9th Cir. 2007) (en banc) (quoting Strickland, 466 U.S. 7 at 694). But Ellison does not argue that any biased jurors were empaneled. Sechrest, 816 8 F. Supp. 2d at 1039 (“Sechrest does not make any allegation . . . that any individual who 9 was actually seated on the jury was biased. Therefore, Sechrest cannot show that any 10 conceivable shortcoming of his counsel’s performance with respect to juror voir dire 11 caused him prejudice.”); Campbell v. Bradshaw, 674 F.3d 578, 594 (6th Cir. 2012) 12 (rejecting ineffective assistance claim where petitioner failed to “identif[y] any juror who 13 was actually seated that indicated an inability to set aside any prior knowledge about the 14 case or to judge the case fairly and impartially”). 15 In sum, the PCR court’s rejection of this claim was neither contrary to nor an 16 unreasonable application of clearly established federal law, nor was it based on an 17 unreasonable determination of the facts. 18 b. Gun Evidence 19 Ellison alleges that counsel performed ineffectively by “failing to adequately object 20 to and challenge improper evidence the State presented to suggest Ellison took a handgun 21 to the crime.” (Doc. 21 at 277-78.) The PCR court denied this claim, finding that it 22 “involve[d] an issue of little moment or relevance to guilt or punishment.” (PCR Ruling, 23 7/16/12 at 5.) 24 As noted, the State presented evidence at trial of a handgun (a Jennings .22 25 semiautomatic) found in the trunk of a vehicle in the garage of Ellison’s then-girlfriend, 26 Cathie Webster-Hauver. (RT 1/15/02 at 207-08; RT 1/16/02 at 171-72.) Over Ellison’s 27 objection, a latent-print examiner for the Arizona Department of Public Safety testified that 28 one of the eight prints she lifted from the gun could be identified as Ellison’s right index

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1 finger. (RT 1/16/02 at 113-14.) Ellison objected to the gun evidence on relevance grounds, 2 arguing there was no evidence connecting the gun to the crimes. (Id. at 110-12.) Judge 3 Moon overruled the objection, explaining: “[T]he standard being whether it would tend to 4 make a material fact more or less likely since it was found in the trunk of a car where he 5 [Ellison] was living, and there’s evidence that somebody had a gun . . . .” (Id. at 112.) 6 After the testimony of Detective Auld and the print examiner, Ellison’s counsel 7 renewed his objection, arguing the gun was not relevant under Rule 401 of the Arizona 8 Rules of Evidence because there was no admissible evidence connecting it with the crimes. 9 (Id. at 206.) Judge Moon then elaborated on his basis for denying the objection: 10 There is testimony in the record that the defendant said Finch had a gun. So 11 even aside from the issue of who really had the gun . . . , the presence of the gun in that place in those circumstances at that time frame has probative 12 value on the issue of who had the gun or, if nothing else, the possible 13 Enmund/Tison issue. . . . I think even if it had been sort of undisputed that Finch had the gun, the fact that it ended up where it did and allowing the 14 State to argue a reasonable inference that that was the gun, it has probative 15 value. How much, it’s not my job to decide.

16 (Id. at 209.)

17 Following the guilty verdicts, Ellison’s counsel filed a motion for a new trial.

18 (ROA, Vol. V, Doc. 172.) Counsel argued that the gun “was not relevant to the case and

19 should not have been admitted.” (Id. at 3.) He also asserted that “[t]he prejudice stemming

20 from the admission of this evidence is obvious, for it permitted the jury to speculate that

21 Defendant had been armed with a gun prior to his entry into the Boucher home. It certainly

22 cannot be said that it did not contribute to the verdicts returned by the jury.” (Id.) The

23 court denied the motion, finding that the evidence was neither irrelevant nor “unfairly

24 prejudicial.” (RT 3/15/02 at 7.) As noted, on direct appeal the Arizona Supreme Court

25 found that Judge Moon did not abuse his discretion in admitting the evidence because it

26 “establishes that Ellison possessed a gun before and after the crime, and combined with

27 other evidence that Finch did not possess a gun, makes less likely Ellison’s story that he

28 participated only because Finch threatened him with a gun.” Ellison, 140 P.3d at 916.

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1 Ellison now alleges that counsel performed ineffectively by not objecting to the gun 2 evidence as more prejudicial than probative under Arizona Rule of Evidence 403. (Doc. 3 21 at 278.) He also contends counsel was ineffective in failing to object to and move to 4 strike previous testimony about the gun, including hearsay testimony from Detective 5 Watson; failing to impeach Detectives Watson and Auld with their prior testimony; and 6 failing to object to “the State’s repeated, false assertions that Finch did not have access to 7 any gun.” (Id. at 280.) 8 Under Rule 403, “[t]he court may exclude relevant evidence if its probative value is 9 substantially outweighed by a danger of . . . unfair prejudice. . . .” In denying Ellison’s 10 motion for a new trial, Judge Moon specifically found that the gun evidence was not 11 “unfairly prejudicial.” (RT 3/15/02 at 7.) Therefore, it would have been futile for counsel 12 to have raised an objection based on unfair prejudice under Rule 403 rather than relevance. 13 James v. Borg, 24 F.3d 20, 27 (9th Cir. 1994) (counsel was not ineffective for failing to 14 move to strike a special circumstance finding where the motion would have been futile). 15 Under cross-examination by defense counsel, Detective Watson testified that Ms. 16 Webster-Hauser stated that Ellison had been in possession of the Jennings handgun and 17 that Webster-Hauser’s daughter stated that Ellison had been staying at their house since 18 February 24, 1999. (RT 1/16/02 at 11.) Ellison contends that counsel should have objected 19 and moved to strike these hearsay responses. (Doc. 21 at 279.) Respondents contend that 20 Ellison cannot show prejudice from counsel’s performance because, if counsel had 21 objected to the statements on hearsay grounds, the prosecution could have called Webster- 22 Hauser and her daughter as witnesses, thereby satisfying Ellison’s Confrontation Clause 23 rights. (Doc. 30 at 194.) They also note that evidence of the gun, found at Ellison’s 24 residence and bearing his fingerprint, was admissible notwithstanding the hearsay 25 testimony. (Id.) For these reasons, and based on the strength of the evidence against 26 Ellison, there was not a reasonable probability of a different verdict if counsel had objected 27 to Detective Watson’s testimony. Delgadillo, 527 F.3d at 930 n.4 (upholding the denial of 28 an ineffective assistance claim where counsel failed to object to cumulative testimony and

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1 petitioner “fail[ed] to establish that but for the admission of that testimony ‘there was a 2 reasonable probability that . . . the result of the proceeding would have been different’”).27 3 Ellison next argues that counsel performed ineffectively by failing to impeach 4 Detectives Auld and Watson with their prior testimony, during grand jury proceedings and 5 at a bail hearing, that Ellison told them the handgun Finch used to threaten Ellison was the 6 one he and Finch took from the Bouchers’ house. (Doc. 21 at 280.) According to Ellison, 7 this would impeach Auld’s trial testimony that “in the first interrogation, Ellison did not 8 identify the gun he said Finch pointed at him.” (Id.) Ellison does not provide a citation to 9 the trial transcript containing any such testimony by Detective Auld (see Doc. 21 at 280), 10 and the Court’s review of the transcript does not reveal trial testimony from either detective 11 claiming that Ellison did not identify the gun Finch allegedly pointed at him. In the absence 12 of such testimony, there was nothing to impeach, and trial counsel did not perform 13 ineffectively. Alternatively, and at any rate, Ellison has failed to establish that any failure 14 was prejudicial, given the strength of the evidence against him and the state court’s 15 reasonable determination that the handgun issue was “of little moment or relevance to guilt 16 or punishment.” 17 Finally, Ellison argues that counsel performed ineffectively by failing to object to 18 “the State’s repeated, false assertion that Finch did not have access to any gun.” (Doc. 21 19 at 280.) Again, however, Ellison fails to support his allegation that the prosecution 20 repeatedly and falsely argued to the jury that Finch had no access to a gun. Ellison cites 21 only a snippet from the prosecutor’s guilt-phase closing argument: “Ellison said that 22 Richard Finch pointed a gun at him. All of a sudden in the story we have a gun pointed at 23 him. And nobody’s ever found a gun associated with Richard Finch. . . .” (RT 1/18/02 at 24 15). This single statement, taken in context, is not misleading. It clearly refers to the lack 25 of evidence of Finch having a gun before the attack on the Bouchers, as supported by Brad 26 27 Ellison also fails to meet his burden of showing that counsel’s performance was 27 deficient. As with respect to the testimony about the police searching for the gun 28 mentioned by Finch, it is possible the “failure” to object was a matter of sound strategy, with counsel choosing not to bring additional attention to the testimony.

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1 Howe’s testimony. It would be nonsensical for the prosecutor to argue, or the jury to 2 believe, that Finch didn’t have access to a gun when the State’s own evidence proved that 3 guns were among the property Finch took from the victims’ house. This interpretation of 4 the prosecutor’s statement is confirmed when he noted, in his rebuttal closing argument, 5 that one reason Howe had become frightened of Finch was that “now there is a gun in the 6 house.” (RT 1/18/02 at 47.) 7 Accordingly, the PCR court’s rejection of this claim was neither contrary to nor an 8 unreasonable application of clearly established federal law, nor was it based on an 9 unreasonable determination of the facts. 10 c. Hearsay Evidence 11 Ellison alleges that trial counsel was ineffective in failing to object to “rampant 12 hearsay that violated the Confrontation Clause.” (Doc. 21 at 282.) The claim refers to 13 testimony by Detectives Watson and Auld and by Howe relating statements made by Finch, 14 and the testimony by Detective Watson about statements made by Ms. Webster-Hauver 15 and her daughter about Ellison’s access to the gun. (Id. at 282-83.) Ellison argues that the 16 testimony violated Crawford and Bruton and that counsel should have objected, asked that 17 the testimony be stricken, or moved for a mistrial “after each reference to these 18 inadmissible statements.” (Id. at 283.) The PCR court denied this claim without comment 19 as not colorable. (PRC Ruling 7/16/12, at 6.) 20 For the reasons previously discussed, hearsay objections to testimony regarding 21 Finch’s statements would have been futile. Finch’s statements to Detectives Watson and 22 Auld were not offered for the truth of the matter but to explain police action, including 23 their search for evidence and the arrest of Finch. “An out-of-court statement used to 24 explain why police took a certain action in their investigation is not hearsay.” Velazquez- 25 Rivera, 366 F.3d at 666; Johnson, 875 F.3d at 1279; Taylor, 569 F.3d at 749. Finch’s 26 statements to Howe were also nontestimonial and therefore not violative of Crawford. 27 Bruton does not apply to non-testimonial hearsay, see, e.g., Dargan, 738 F.3d at 651, nor 28 does it apply to statements offered for nonhearsay purposes, Street, 471 U.S. at 413-14.

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1 Separately, and as also previously discussed, counsel’s failure to object to Detective 2 Watson’s testimony about statements made by Ms. Webster-Hauver and her daughter 3 amounted to neither deficient nor prejudicial performance. 4 The PCR court’s rejection of this claim was neither contrary to nor an unreasonable 5 application of clearly established federal law, nor was it based on an unreasonable 6 determination of the facts. 7 d. Vivian Brown’s Testimony 8 Ellison alleges that trial counsel was ineffective in failing to obtain his jail records 9 to rebut Vivian Brown’s testimony that she saw Ellison twice at or near her parents’ home. 10 (Doc. 21 at 283-85.) The PCR court denied this claim, finding that it “involve[d] an issue 11 of little moment or relevance to guilt or punishment.” (PCR Ruling, 7/16/12 at 5.) Ellison 12 contends that this decision was “factually and legally unreasonable” because evidence that 13 Brown could not have seen him a second time was relevant to her credibility, which in turn 14 was relevant to issues of his “culpability and premeditation.” (Doc. 21 at 284-85.) 15 As discussed, Brown testified that she saw Ellison at her parents’ house in October 16 1997 and saw him again at a neighbor’s house in 1998 during the monsoon season. 17 Ellison’s counsel attempted to impeach Brown with records from the Arizona Department 18 of Corrections showing that Ellison was in custody from May 29, 1998 to January 1999, 19 but the trial court ruled that the records were hearsay and could not be used in cross- 20 examination unless counsel sought to admit them under a hearsay exception. The Arizona 21 Supreme Court held that this ruling was not an abuse of discretion. Ellison, 140 P.3d at 22 915. 23 Ellison argues that counsel should have obtained and presented additional, available 24 records showing that he had been incarcerated in the Mohave County Jail from December 25 1997 until he was transferred to prison (for a parole violation) in May 1998. (Doc. 21 at 26 284.) However, even assuming for the sake of argument that counsel’s failure to obtain 27 and attempt to admit those records was deficient (and not a matter of sound trial strategy), 28 Ellison cannot demonstrate a reasonable probability that the outcome of his trial would

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1 have been different had counsel obtained and attempted to use the records at issue. 2 As discussed above, although Brown’s credibility may have been impeached by 3 records showing that Ellison was in custody throughout 1998, the key face-to-face 4 encounter between Brown and Ellison, in October 1997, was supported by evidence that 5 Ellison subsequently recognized Brown as the Bouchers’ daughter. (RT 1/15/02 at 94.) 6 Additionally, Ellison’s familiarity with the Kingman neighborhood where the 7 Bouchers lived was supported by evidence independent of Brown’s testimony. For 8 example, the police measured the distance between the home of Ellison’s parents and the 9 Boucher home as less than a quarter of a mile. (RT 1/16/02 at 200.) Also, it was Ellison 10 who drove to the Bouchers’ home and it was a glove from Ellison’s tattoo shop that was 11 found at the crime scene. Finally, Howe testified that Finch did not own a vehicle and, as 12 far as Howe knew, had never been to Kingman. (RT 1/17/02 at 76.) Accordingly, the 13 Court agrees with Respondents that “even if the jail records established that Vivian was 14 incorrect as to the time of her second contact with Ellison, the records would not have 15 undermined her testimony regarding her first and most significant contact with Ellison, 16 which established his familiarity with the victims, their home, and their backyard. As a 17 result, the state post-conviction court’s rejection of this claim was neither contrary to, nor 18 an unreasonable application of, Strickland . . . .” (Doc. 30 at 198.) 19 e. Confession 20 Ellison alleges that trial counsel performed ineffectively by “failing to properly 21 challenge” the admission of his confession. (Doc. 21 at 285-86.) He contends that counsel 22 should have investigated and presented evidence that he suffers from Fetal Alcohol 23 Spectrum Disorder (“FASD”), such that his waiver of his Miranda rights was not knowing, 24 intelligent, or voluntary. (Id.)28 The PCR court denied the claim as “simply not supported 25 by the law,” explaining that “the best evidence of the police interviews is the actual words 26 27 28 In his petition, Ellison refers to his condition as FASD. The Court will follow that 28 usage except when referring to specific diagnoses rendered by Ellison’s experts or quoting transcripts or other materials.

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1 recorded by the police, wherein it is clear that the Defendant understood his rights and 2 waived his Constitutional protections.” (PCR Ruling, 7/16/12 at 6.) In addition, as 3 discussed in more detail below, the court found that Ellison failed to prove he had FASD. 4 Courts consider various factors when determining whether a waiver is knowing and 5 intelligent, including the “background, experience, and conduct of the accused.” Cook v. 6 Kernan, 948 F.3d 952, 967 (9th Cir. 2020) (quotation omitted). Other factors include “the 7 defendant’s maturity, education, physical condition, mental health, and age.” Id. at 968- 8 69 (quotation omitted). 9 At the time of his statement to Detectives Watson and Auld, Ellison was 33 years 10 old and, like the defendant in Cook, “had been arrested and provided Miranda warnings on 11 several occasions in the past.” Id. at 968. He told the detectives he understood his Miranda 12 rights. His IQ, most recently measured as 89, was average.29 When Ellison did confess, 13 he assigned primary responsibility for the crimes to Finch. Id. at 970 (voluntariness finding 14 supported by the fact that when Cook finally confessed, he made only “vague admissions” 15 to “facts that minimize[d] his culpability for the crimes”). The interviews were short, 16 totaling approximately half an hour (RT 1/15/02 at 231), and Ellison responded coherently 17 to the detectives’ questions. Cf. Cook, 948 F.3d at 969 (interrogation lasted seven hours 18 before Cook confessed); State v. Fardan, 773 N.W.2d 303, 314-15 (Minn. 2009) 19 (upholding the Miranda waiver of a juvenile who claimed to have FASD and low 20 intellectual function but demonstrated no intimidation, confusion, or indecision during a 21 reading of Miranda warning or custodial interrogation). 22 In Cook, the California Supreme Court summarily denied the appellant’s claim that 23 his confession was not knowing, intelligent, and voluntary. 948 F.3d at 966. The Ninth 24 Circuit, applying AEDPA’s deferential standard, held that the state court “had a reasonable 25 basis” for rejecting Cook’s claim that his waiver wasn’t knowing and intelligent and that 26 27 29 Dr. Paul Connor, a neuropsychologist, testified during the PCR evidentiary hearing 28 that he measured Ellison’s full-scale IQ at 89, which contrasted with the higher scores of around 100 that Ellison achieved when tested in school. (RT 8/18/14 at 68-69.)

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1 “Cook utterly fail[ed] to show how the conclusion that his confession was voluntary under 2 the totality of the circumstances is ‘inconsistent with the holding in a prior decision of the 3 Supreme Court.’” Id. at 968-69 (citations omitted). 4 For similar reasons, the PCR court’s ruling was not contrary to or an unreasonable 5 application of clearly established federal law or based on an unreasonable determination of 6 the facts. 7 f. False Testimony 8 Ellison argues, “[i]n the alternative to Claims 52 and 53,” which allege violations 9 under Brady and Napue, that trial counsel was ineffective in failing to obtain and present 10 evidence that Watson’s and Auld’s testimony about his interrogation was false. (Doc. 21 11 at 286-87.) Ellison concedes he didn’t raise this ineffective-assistance claim in state court 12 but argues that its default is excused under Martinez by the ineffective assistance of PCR 13 counsel. (Id. at 287.) 14 As discussed above, the Brady and Napue claims are meritless. Therefore, neither 15 trial counsel, in failing to discover the withheld evidence or false testimony, nor PCR 16 counsel, in failing to raise a claim of trial counsel ineffectiveness, performed ineffectively. 17 Runningeagle v. Ryan, 825 F.3d 970, 982 (9th Cir. 2016); Atwood, 870 F.3d at 1060. 18 “Cause” under Martinez is absent, so this claim is barred from federal review. 19 g. Cumulative Prejudice 20 Ellison alleges that trial counsel’s guilt-phase errors, considered cumulatively with 21 the penalty-phase errors, prejudiced him at both stages of trial. (Doc. 21 at 287.) The 22 parties disagree whether this claim is exhausted. Whatever its procedural status, it is 23 meritless. 24 As noted, the Supreme Court has not specifically recognized the doctrine of 25 cumulative error as an independent basis for habeas relief. Lorraine, 291 F.3d at 447; 26 Morris, 677 F.3d at 1132 n.3. Although the Ninth Circuit has suggested that the cumulative 27 effect of several errors may prejudice a defendant, Parle, 505 F.3d at 927, here the Court 28 has identified no constitutional errors so there is nothing to accumulate to the level of a

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1 constitutional violation. 2 II. Sentencing-Phase Claims 3 A. Claim 13 4 In Claim 13, Ellison alleges that the evidence did not support the jury’s 5 Enmund/Tison findings. (Doc. 21 at 97-99.) Under Tison and Enmund, a defendant 6 convicted of felony murder can be sentenced to death only if he actually killed, attempted 7 to kill, or intended to kill, or if he was a major participant in the underlying felony and 8 acted with reckless indifference to human life. The jury determined that Ellison “either 9 killed, intended to kill, or acted with reckless indifference towards the life or death” of both 10 Mr. and Mrs. Boucher. (ROA, Vol. VI, Docs. 168, 169 [verdict forms].) 11 The Arizona Supreme Court rejected Ellison’s argument that the State failed to 12 prove he acted with reckless indifference. Ellison, 140 P.3d at 917-18. The court noted 13 that “Ellison . . . was not merely present during the burglary and subsequent murders. He 14 directly participated in binding the victims and holding a pillow over Mr. Boucher’s face. 15 A reasonable factfinder could conclude that Ellison acted at least with reckless indifference 16 to the victims’ lives.” Id. 17 Again, under Jackson, the question is whether any rational trier of fact could have 18 found that the Enmund/Tison requirements had been satisfied—namely, that Ellison was a 19 major participant in the burglary and acted with reckless indifference to the victims’ lives. 20 This standard is satisfied. Evidence showed that Ellison, like the defendants in Tison, “was 21 actively involved in every element” of the underlying crime and was “physically present 22 during the entire sequence of criminal activity culminating in the murder.” Tison, 481 U.S. 23 at 158. Ellison also, at the very least, “watched the killing” and then “chose to aid” Finch 24 “rather than their victims.” Id. at 152. Finally, the additional level of deference mandated 25 by AEDPA provides further reason why Ellison is not entitled to habeas relief. Cf. Dickens 26 v. Ryan, 740 F.3d 1302, 1316 (9th Cir. 2014) (“In Tison, the U.S. Supreme Court concluded 27 that the defendants exhibited reckless indifference, in part, because they watched the killing 28 and then chose to aid those whom they had placed in the position to kill rather than their

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1 victims. Nothing suggests the defendants in Tison knew anyone had survived. Rather, the 2 relevant factors were the defendants’ knowledge that victims had been shot and their 3 decision to aid the shooters over the victims. Dickens, like the Tison defendants, watched 4 Amaral shoot the Bernsteins, but decided to aid Amaral over the Bernsteins by picking him 5 up and driving him to his brother's home. There is no evidence that Dickens attempted to 6 aid the Bernsteins, summon medical assistance, or otherwise notify the authorities. Instead, 7 he helped Amaral. Because Dickens’s uncontested knowledge of the Bernsteins’ shooting, 8 rather than Bryan’s survival, is the critical factor in the Enmund/Tison reckless indifference 9 analysis, the Arizona Supreme Court did not base its decision on an unreasonable 10 determination of the facts.”) (cleaned up). 11 B. Claims 14 and 15 12 In Claim 14, Ellison alleges that because his indictment “did not refer to capital 13 murder, aggravating circumstances, or otherwise reflect the State’s intention to seek a death 14 sentence,” he was not indicted for a capital crime, in violation of the Fifth, Sixth, and 15 Fourteenth Amendments. (Doc. 21 at 991-04.) In Claim 15, Ellison alleges that the State’s 16 failure to give proper, timely notice of the aggravating factors deprived him of his rights to 17 notice, the effective assistance of counsel, and reliable proceedings, in violation of the 18 Sixth, Eighth, and Fourteenth Amendments. (Doc. 21 at 104-06.) The Arizona Supreme 19 Court rejected these claims on direct appeal. Ellison, 140 P.3d at 918-19. As explained 20 below, those rulings were neither contrary to nor an unreasonable application of clearly 21 established federal law, nor were they based on an unreasonable determination of the facts. 22 The State filed an indictment in Mohave County Superior Court in March 1999 23 charging Ellison with two counts of first-degree murder and one count of first-degree 24 burglary. (ROA, Vol. I, Doc. 2.) On April 1, 1999, the State noticed its intent to seek the 25 death penalty. (ROA, Vol. I, Doc. 13.) On January 29, 2002, following Ellison’s 26 convictions, the State noticed its intent to prove six aggravating circumstances. (ROA, 27 28

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1 Vol. VI, Doc. 173.)30 2 The Fifth Amendment’s Grand Jury Clause, which guarantees indictment by a grand 3 jury in federal prosecutions, was not incorporated by the Fourteenth Amendment to apply 4 to the states. Branzburg v. Hayes, 408 U.S. 665, 688 n.25 (1972) (“[I]indictment by grand 5 jury is not part of the due process of law guaranteed to state criminal defendants by the 6 Fourteenth Amendment . . . .”). 7 Although Ellison contends that Ring II and Apprendi v. New Jersey, 530 U.S. 466 8 (2000), support his position, in neither of those cases did the Supreme Court address this 9 issue, let alone hold that aggravating factors must be included in an indictment and 10 subjected to a probable cause determination. Ring II, 536 U.S. at 597 n.4 (“Ring does not 11 contend that his indictment was constitutionally defective.”); Apprendi, 530 U.S. at 477 12 n.3 (“Apprendi has not here asserted a constitutional claim based on the omission of any 13 reference to sentence enhancement . . . in the indictment.”). See also Williams v. Haviland, 14 467 F.3d 527, 532 (6th Cir. 2006) (noting that Apprendi and Ring II do not address any 15 “indictment requirements”). In addition, as the Arizona Supreme Court noted, the penalty 16 phase of Ellison’s trial ultimately occurred in 2004, two years after he received notice of 17 the aggravating factors, so he was not prejudiced by the timing of the disclosure. 18 C. Claim 16 19 In Claim 16, Ellison alleges that he was deprived of his rights to a fair and impartial 20 jury, a fair trial, and due process when the trial court erroneously struck one prospective 21 juror for cause and failed to strike another. (Doc. 21 at 107-14.) 22 1. Juror 19 23 Ellison alleges that the trial court violated his rights under Wainwright v. Witt, 469 24 U.S. 412 (1985), and Witherspoon v. Illinois, 391 U.S. 510 (1968), by striking Juror 19 for 25 cause based on her views about the death penalty. The Arizona Supreme Court denied this 26 claim on direct appeal. Ellison, 140 P.3d at 920-21. The court first noted that jury 27 30 28 As the Arizona Supreme Court noted, under then-existing law, notice of aggravating factors was required only after conviction. Ellison, 140 P.3d at 918.

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1 selection for Ellison’s sentencing included both “extensive oral voir dire” and a 2 questionnaire asking whether the possibility of the death penalty would “prevent or 3 substantially impair” a potential juror’s ability to fairly decide Ellison’s sentence. Id. at 4 920. The court then turned to Ellison’s challenge to the dismissal of Juror 19. 5 The court explained that “[a] death sentence cannot be upheld if the jury was 6 selected by striking for cause those who ‘voiced general objections to the death penalty or 7 expressed conscientious or religious scruples against its infliction.’” Id. (quoting 8 Witherspoon, 391 U.S. at 522). The court noted, however, that a judge “may strike for 9 cause a potential juror whose views regarding the death penalty ‘would prevent or 10 substantially impair the performance of his duties as a juror.’” Id. (quoting Wainwright, 11 469 U.S. at 424). The court added: “Such views need not be proven with ‘unmistakable 12 clarity.’” Id. (quoting Wainwright, 469 U.S. at 424). The court also explained that “even 13 if a juror is sincere in his promises to uphold the law, a judge may still reasonably find a 14 juror’s equivocation ‘about whether he would take his personal biases in the jury room’ 15 sufficient to substantially impair his duties as a juror, allowing a strike for cause.” Id. 16 (quoting State v. Glassel, 116 P.3d 1193, 1208 (Ariz. 2005)). 17 Applying these standards, the court concluded that Judge Moon did not abuse his 18 discretion in allowing the prosecution to strike Juror 19 for cause. Id. at 921. The court 19 explained that Juror 19 “expressed reservations and conflict about the death penalty. She 20 could not definitely say whether her beliefs would cause her to ignore the law. . . . [J]uror 21 19 gave statements indicating her beliefs could substantially impair her ability as a juror, 22 even though she also promised to uphold her oath.” Id. at 920–21. 23 This decision was neither contrary to nor an unreasonable application of clearly 24 established federal law, nor was it based on an unreasonable determination of the facts. 25 “In Witherspoon, [the Supreme] Court set forth the rule for juror disqualification in capital 26 cases.” White v. Wheeler, 577 U.S. 73, 77 (2015). Under that rule, capital defendants are 27 entitled to a jury not “uncommonly willing to condemn a man to die.” Witherspoon, 391 28 U.S. at 521. But the Supreme Court “with equal clarity has acknowledged the State’s

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1 ‘strong interest in having jurors who are able to apply capital punishment within the 2 framework state law prescribes.’” Wheeler, 577 U.S. at 77 (quoting Uttecht v. Brown, 551 3 U.S. 1, 9 (2007)); see also Adams v. Texas, 448 U.S. 38, 45 (1980) (“The State may insist, 4 however, that jurors will consider and decide the facts impartially and conscientiously 5 apply the law as charged by the court.”). 6 A juror may be excused for cause if he or she is “substantially impaired in his or her 7 ability to impose the death penalty under the state-law framework.” Uttecht, 551 U.S. at 9 8 (citing Witt, 469 U.S. at 424). This standard is met “where the trial judge is left with the 9 definite impression that a prospective juror would be unable to faithfully and impartially 10 apply the law.” Witt, 469 U.S. at 425-26. 11 Juror 19, a female nurse, described herself during voir dire as “[p]retty much pro- 12 life.” (RT 2/4/04 at 140.) When Judge Moon asked if it would be “fair to say, based on 13 your questionnaire and kind of reading between the lines, that you do not favor the death 14 penalty,” Juror 19 responded: “I’m really pro-life. I am. So I don’t know if I could do the 15 death penalty or not. I’m being honest now. I don’t know if I could.” (Id.) Although 16 Juror 19 indicated she thought she could be open-minded and give both sides a “level 17 playing field,” she stated: “But I still don’t know if I would get—if it come [sic] to the 18 point could I be for the death penalty, I don’t know if I could do that. I might say no, I 19 can’t do that.” (Id. at 141.) She stated it was possible—she put the odds at 60/40— that 20 she would “ignore the law and the judge’s instructions” and vote for life even if the jury 21 found multiple aggravating factors and no mitigating circumstances. (Id. at 142-43.) At 22 other points she indicated she could “probably” follow the law but she “would still not feel 23 well about doing it. . . . It would be hard for me to do that.” (Id. at 145.) She continued: 24 “[I]t would still be really hard to vote for the death penalty, even if it’s all right there in 25 front of my nose.” (Id. at 146.) Toward the end of the questioning, the prosecutor asked 26 whether there was “a possibility that you would just disregard the law and vote against the 27 death penalty, even if the law was pretty clear.” (Id. at 148.) Juror 19 replied: “I might.” 28 (Id.) In granting the motion to strike, Judge Moon noted that Juror 19 “expressed several

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1 times her concern about her ability to follow the law. So she went . . . beyond being against 2 the death penalty, but somebody saying she’s just not sure she can follow the law.” (Id. at 3 150.) 4 A state court’s determination that a juror’s views would substantially impair the 5 discharge of his or her duties is a factual finding entitled to a presumption of correctness 6 on federal habeas review. Witt, 469 U.S. at 426 (“[D]eference must be paid to the trial 7 judge who sees and hears the juror.”); Uttecht, 551 U.S. at 9 (“Deference to the trial court 8 is appropriate because it is in a position to assess the demeanor of the venire, and of the 9 individuals who compose it, a factor of critical importance in assessing the attitude and 10 qualifications of potential jurors.”). A trial court’s “finding may be upheld even in the 11 absence of clear statements from the juror that he or she is impaired. . . .” Uttecht, 551 12 U.S. at 7. Finally, AEDPA requires an additional, “independent, high standard” of 13 deference. Id. at 10. 14 In Uttecht, the Court clarified that “[t]he need to defer to the trial court’s ability to 15 perceive jurors’ demeanor does not foreclose the possibility that a reviewing court may 16 reverse the trial court’s decision where the record discloses no basis for a finding of 17 substantial impairment.” Id. at 20. However, where there has been “lengthy questioning 18 of a prospective juror and the trial court has supervised a diligent and thoughtful voir 19 dire, the trial court has broad discretion.” Id. Here, there was a diligent and thoughtful 20 voir dire process, which included the completion of a questionnaire and examination of 21 potential jurors by the court and the parties. The questioning of Juror 19 occurred over 11 22 transcript pages. (RT 2/4/04 at 139-50.) Judge Moon therefore had broad discretion and 23 the record supports his finding of substantial impairment based on Juror 19’s answers on 24 the questionnaire and during voir dire. 25 “A juror’s voir dire responses that are ambiguous or reveal considerable confusion 26 may demonstrate substantial impairment.” United States v. Fell, 531 F.3d 197, 215 (2d 27 Cir. 2008). “[A]ssurances that [the juror] would consider imposing the death penalty and 28 would follow the law do not overcome the reasonable inference from his other statements

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1 that in fact he would be substantially impaired in this case . . . .” Uttecht, 551 U.S. at 18. 2 “Because appellate judges are absent from voir dire, when a prospective juror fails to 3 express herself ‘carefully or even consistently . . . it is [the trial] judge who is best situated 4 to determine competency to serve impartially.’” United States v. Allen, 605 F.3d 461, 466 5 (7th Cir. 2010) (quoting Patton v. Yount, 467 U.S. 1025, 1039 (1984)). Juror 19’s 6 statements were not always consistent, or even coherent, but she did persistently indicate 7 that her “pro-life” views would make it difficult or impossible for her to vote for 8 a death sentence. Judge Moon thus “properly considered all of [Juror 19’s] responses in 9 the context in which they were given and did not err in concluding that [her] views would 10 significantly interfere with [her] duties as juror.” Fell, 531 F.3d at 215. To the extent any 11 ambiguity remained in Juror 19’s attitude about the death penalty after her questioning by 12 the parties, Judge Moon was “entitled to resolve it in favor of the State.” Uttecht, 551 U.S. 13 at 7 (quoting Witt, 469 U.S. at 434). 14 2. Juror 17 15 Ellison also argues that the trial court erred in refusing to strike Juror 17 for cause 16 due to his pro-death-penalty views. The Arizona Supreme Court considered and rejected 17 this claim. Ellison, 140 P.3d at 921 n.16 (“Ellison also appeals Judge Moon’s denial of his 18 motion to strike potential juror 17 for cause. Juror 17 did not ultimately sit on the jury; 19 thus, any error is harmless.”). As explained below, this determination was not contrary to 20 or an unreasonable application of clearly established federal law. 21 Although a defendant has a “due process right to remove for cause a juror who will 22 automatically vote for the death penalty,” United States v. Mitchell, 502 F.3d 931, 954 (9th 23 Cir. 2007) (citing Morgan v. Illinois, 504 U.S. 719 (1992)), failure to strike a biased juror 24 does not violate a defendant’s rights when the juror did not sit on the jury, even if the 25 defendant had to use a peremptory challenge to strike him. “So long as the jury that sits is 26 impartial, . . . the fact that the defendant had to use a peremptory challenge to achieve that 27 result does not mean the Sixth Amendment was violated.” United States v. Martinez- 28 Salazar, 528 U.S. 304, 313 (2000). Juror 17 did not sit on Ellison’s jury, so he is not

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1 entitled to relief on this claim.31 2 D. Claim 17 3 In Claim 17, Ellison alleges that his rights to a jury trial, to have his sentencing jury 4 consider all relevant evidence, and to due process were violated because he was sentenced 5 by a “jury that did not adjudicate his guilt.” (Doc. 21 at 115-18.) 6 On direct appeal, the Arizona Supreme Court rejected Ellison’s argument that the 7 use of a separate sentencing jury deprived him of his right to an individualized sentence. 8 Ellison, 140 P.3d at 919. The court noted that it had previously denied such claims and 9 explained that “Ellison cannot complain that evidence relevant to sentencing was presented 10 at the guilt proceeding” because “nothing prevented him from introducing evidence from 11 the guilt proceeding at his sentencing proceeding.” Id. (citing State v. Anderson, 111 P.3d 12 369 (Ariz. 2005)). The court also rejected Ellison’s argument that the guilt-phase jury was 13 impermissibly allowed to shift responsibility to the sentencing jury. Id. 14 Ellison cites no clearly established federal law holding that the use of a separate 15 sentencing jury in a capital case violates a defendant’s constitutional rights. Nor has the 16 Court, through its own research, found any such authority. Powell v. Quarterman, 536 F.3d 17 325, 334 (5th Cir. 2008) (noting that “no clearly established law decided by the Supreme 18 Court” requires “the same jury to determine guilt and punishment”); Mitchell v. Sharp, 798 19 F.App’x 183, 197-98 (10th Cir. 2019) (“Mr. Mitchell . . . alleges a due process right to 20 have the same jury decide both guilt and punishment in a capital case. . . . Because there 21 is no clearly established federal law to resolve Mr. Mitchell’s . . . claim, . . . our analysis 22 ends.”) (cleaned up). 23 … 24 25 31 Ellison also asserts that the trial court’s “disparate treatment” of Juror 17’s 26 “waffling” on whether he could consider mitigating evidence and Juror 19’s “failure to guarantee that she could return a death verdict” “demonstrates that [the court] applied a 27 standard to [Juror 19] that was more restrictive than Witt and Witherspoon allow.” (Doc. 28 21 at 112.) This argument does not alter the Court’s analysis of the Arizona Supreme Court’s decision under § 2254(d).

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1 E. Claim 18 2 In Claim 18, Ellison alleges that being “subjected to a second trial, with a different 3 jury, on the issue of aggravation and punishment” violated the Double Jeopardy Clause. 4 (Doc. 21 at 118-20.) Quoting Wade v. Hunter, 336 U.S. 684, 689 (1949), Ellison argues 5 that the use of a second jury for sentencing violated his “valued right to have his trial 6 completed by a particular tribunal.” (Id.) 7 The Arizona Supreme Court’s denial of this claim on direct review, Ellison, 140 8 P.3d at 919, relied on its earlier decision in Ring v. Arizona (“Ring III”), 65 P.3d 915 (Ariz. 9 2003), which cited Arizona v. Rumsey, 467 U.S. 203 (1984), Poland v. Arizona, 476 U.S. 10 147 (1986), and Sattazahn v. Pennsylvania, 537 U.S. 101, 109 (2003), for the proposition 11 that double jeopardy does not bar a capital defendant from being resentenced to death when 12 he was not “acquitted” of death in the original sentencing. Ring III, 65 P.3d at 932. The 13 Ring III court also noted that in Wade itself, the Supreme Court denied a double jeopardy 14 claim where charges were dropped in one military tribunal and reinstituted in another. Id. 15 (citing Wade, 336 U.S. at 687-88). The Ring III court thus reasoned that “[t]he ability to 16 resentence a capital defendant by a different set of jurors is implicit” in Rumson, Poland, 17 and Wade. Id. 18 Ellison has not demonstrated that the Arizona Supreme Court’s analysis of this issue 19 was contrary to, or an unreasonable application of, clearly established federal law. See, 20 e.g., Hampton v. Ryan, 2019 WL 979896, *24 (D. Ariz. 2019) (“No clearly established 21 federal law holds that empaneling a second jury for sentencing implicates the Double 22 Jeopardy Clause.”); Garcia v. Shinn, 2022 WL 1166408, *41-42 (D. Ariz. 2022) (same). 23 F. Claim 19 24 In Claim 19, Ellison alleges that his due process rights were violated when a death 25 sentence was imposed “pursuant to a statute not in effect at the time of [his] trial.” (Doc. 26 21 at 121-24.) The Arizona Supreme Court denied this claim on direct review. Ellison, 27 140 P.3d at 920. 28 Ellison relies on Coleman v. McCormick, 874 F.2d 1280 (9th Cir. 1989). There, the

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1 defendant was originally tried and convicted under a statute which provided for a 2 mandatory death sentence whenever a defendant was found guilty of aggravated 3 kidnapping. Id. at 1282. On appeal, the state supreme court held the law was 4 unconstitutional because it did not allow the trial court to consider any mitigating 5 circumstances. Id. The court remanded the case for resentencing in accordance with a 6 newly-enacted statute that provided for a separate sentencing hearing at which the judge 7 would determine the existence of any aggravating and mitigating circumstances. Id. If the 8 judge found at least one aggravating factor and determined there were no mitigating 9 circumstances sufficiently substantial to call for leniency, he would be required to impose 10 a death sentence. Id. at 1285. Coleman was again sentenced to death. Id. In reversing the 11 sentence, the Ninth Circuit explained: 12 The defendant is due at least that amount of process which enables him to put on a defense during trial knowing what effect such a strategy will have 13 on the subsequent capital sentencing, the results of which may be equally if 14 not more critical to the defendant than the conviction itself. 15 Id. at 1288. Because the defendant “made countless tactical decisions at trial aimed solely 16 at obtaining [his] acquittal, without even a hint that evidence . . . would be considered as 17 either mitigating or aggravating factors,” the due process violation was pervasive and not 18 harmless error. Id. at 1289. 19 No such due process violation occurred here. “Ring II impacted only the identity of 20 the trier of fact at sentencing, not the process itself.” State v. Murdaugh, 97 P.3d 844, 853 21 (Ariz. 2004). Unlike the defendant in Coleman, Ellison was aware during the guilt phase 22 of his trial that if he were convicted there would be a sentencing phase involving the 23 presentation of aggravating and mitigating factors. Although the sentencer changed from 24 the trial judge to a jury, Ellison had two years after his conviction to prepare for his for 25 sentencing before a jury. 26 At a minimum, Ellison fails to cite any clearly established federal law that would 27 render the Arizona Supreme Court’s denial of this claim unreasonable under § 2254(d)(1). 28 …

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1 G. Claim 20 2 In Claim 20, Ellison alleges that the “especially cruel, heinous, or depraved” 3 aggravating circumstance is “unconstitutionally vague in light of Ring and violates the 4 Eighth Amendment.” (Doc. 21 at 124-27.) On direct appeal, the Arizona Supreme Court 5 rejected this argument, including the argument that the shift from judge to jury sentencing 6 rendered the factor vague. Ellison, 140 P.3d at 921-22. That decision was neither contrary 7 to nor an unreasonable application of clearly established federal law, nor was it based on 8 an unreasonable determination of the facts. 9 In Walton v. Arizona, 497 U.S. 639 (1990), overruled on other grounds by Ring II, 10 536 U.S. 584, the Supreme Court held that Arizona’s “especially heinous, cruel or 11 depraved” aggravating circumstance was facially vague but also held that the vagueness 12 was remedied by the Arizona Supreme Court’s clarification of the factor’s meaning. Id. at 13 654 (“In this case there is no serious argument that Arizona’s ‘especially heinous, cruel or 14 depraved’ aggravating factor is not facially vague. But the Arizona Supreme Court has 15 sought to give substance to the operative terms, and we find that its construction meets 16 constitutional requirements.”). Under the narrowing definition approved in Walton, a 17 murder is especially cruel “when the perpetrator inflicts mental anguish or physical abuse 18 before the victim’s death” and that “mental anguish includes a victim’s uncertainty as to 19 his ultimate fate.” Id. (citation omitted). That definition, the Court concluded, was 20 “constitutionally sufficient because it gives meaningful guidance to the sentencer.” Id. at 21 655. 22 Here, the jury received the following instruction regarding the especially-cruel 23 factor32: 24 In order to find that the especially cruel aggravating circumstance is present 25 as to either murder, you must find that the State has proven beyond a reasonable doubt that the murder was especially cruel due to the infliction of 26 27 32 As Ellison notes, “[t]he trial court granted a motion for judgment of acquittal as to 28 the heinous/depraved prong of the aggravating circumstance, but sent cruelty to the jury.” (Doc. 21 at 125, citing RT 2/9/04 at 86.)

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1 either extreme physical pain or extreme mental anguish upon that victim. 2 In order to find extreme physical pain, the State must prove each of the following three things: 3 No. 1, the victim suffered extreme physical pain. 4 And, No. 2, the defendant caused the victim to suffer this extreme physical 5 pain. 6 And, No. 3, the defendant intended or knew that the victim would suffer this extreme physical pain. 7 Extreme physical pain means that all three of the following are true: 8 No. 1, the victim was alive and conscious when he or she experienced the 9 pain. 10 And, No. 2, the pain was great and extreme. 11 And, No. 3, the pain was more than brief in duration and was not merely incidental to a quick death. 12 In order to prove extreme mental anguish, the State must prove each of the 13 following three things. 14 No. 1, the victim experienced extreme mental anguish while conscious. 15 And, No. 2, the defendant caused the victim to experience this extreme mental anguish. 16 And, No. 3, the defendant intended or knew that the victim would experience 17 this extreme mental anguish. 18 Extreme mental anguish means that the victim experienced extreme fear or 19 extreme anxiety by being made aware that he or she was going to die.

20 (RT 2/9/04 at 99-100.) These instructions satisfy Walton’s narrowing requirements. 21 Despite this, Ellison contends that Walton was premised on the fact that the Arizona 22 judges who made the sentencing decisions at that time were presumed to know and apply 23 the law, including the narrowed construction of the especially-cruel factor. (Doc. 21 at 24 125.) Thus, Ellison contends that “Walton does not apply in the context of jury 25 sentencing.” (Id.) 26 This argument is unavailing. Ellison cites no clearly established federal law holding 27 that the transition to jury sentencing affects this analysis, and the Ninth Circuit has rejected 28 the argument that habeas relief is available in this circumstance. Smith v. Ryan, 823 F.3d

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1 1270, 1294-95 (9th Cir. 2016) (“In an effort to avoid the U.S. Supreme Court decisions 2 approving Arizona’s narrowing construction, Smith argues that [Ring II] implicitly 3 overruled Walton on this point because it held that jurors rather than judges must find 4 aggravating factors, thereby abrogating Walton’s contrary determination. . . . Smith’s 5 argument does not support granting habeas relief. . . . Irrespective of whether invalidation 6 of the jury instructions in Walton . . . is the logical next step after Ring, the [Supreme] 7 Court has not yet taken that step, and there are reasonable arguments on both sides—which 8 is all Arizona needs to prevail in this AEDPA case.”) (cleaned up). See also Dixon v. Ryan, 9 2016 WL 1045355, *45 (D. Ariz. 2016), aff’d, 932 F.3d 789 (9th Cir. 2019) (“There is no 10 clearly established federal law holding that jury instructions based on the Arizona Supreme 11 Court’s narrowing construction are inadequate. . . .”). 12 H. Claim 21 13 In Claim 21, Ellison alleges that the trial court’s accomplice-liability instruction 14 “permitted the jury to impute Finch’s conduct to Ellison for purposes of establishing [three] 15 aggravating circumstances, in violation of the narrowing requirement of the Eighth 16 Amendment.” (Doc. 21 at 128-31.) 17 During the aggravation phase of trial, the court instructed the jury as follows: 18 A person is criminally accountable for the conduct of another if the person is an accomplice of such other person in the commission of the offense. An 19 accomplice is a person who, with intent to promote or facilitate the 20 commission of an offense, aids, counsels, agrees to aid, or attempts to aid another person in planning or committing the offense. 21 (RT 2/9/04 at 101-02.) 22 With respect to the three aggravating factors at issue here (pecuniary gain, especially 23 cruel, and multiple murders),33 the court’s more specific instructions were as follows: (1) 24 “In order to find that the pecuniary gain aggravating circumstance is present as to either 25 murder, you must find . . . that the expectation of pecuniary gain was the defendant’s 26 27 33 Although the trial court provided instructions on more than three aggravating 28 circumstances, Ellison only contends that “[t]hree aggravating circumstances were impermissibly applied to [him] based on Finch’s conduct.” (Doc. 21 at 128.)

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1 motive, cause, or impetus for the murder”; (2) “In order to find that the especially cruel 2 aggravating circumstance is present as to either murder, you must find . . . [inter alia] the 3 defendant caused the victim to [suffer] this extreme physical pain [and extreme mental 4 anguish] . . . [and] the defendant intended or knew that the victim would suffer this extreme 5 physical pain [and extreme mental anguish]”; and (3) “In order to find that the other murder 6 aggravating circumstance is present as to either murder, you must find . . . that the 7 defendant committed another murder during the commission of the murder for which the 8 State is seeking the death penalty.” (Id. at 98-100.) 9 The Arizona Supreme Court held that the accomplice instruction “properly required 10 the jury to find Ellison had the specific intent to promote or facilitate the offense that he 11 actually aided, counseled, agreed to aid, or attempted to aid.” Ellison, 140 P.3d at 921. 12 The court also found that the “instructions for the especially cruel and pecuniary gain 13 aggravators properly focused on Ellison’s personal intent and motivation. They did not 14 tell the jury to impute Finch’s intent to Ellison.” Id. Finally, with respect to the multiple- 15 murders aggravating factor, the court explained that the statute “requires only that the 16 defendant be convicted of ‘one or more other homicides . . . which were committed during 17 the commission of the offense.’ Here, Ellison was convicted of both premeditated murder 18 and felony murder for each victim,” thus satisfying the intent element for both murders. 19 Id. (citing A.R.S. § 13-703(F)(8)). 20 Ellison argues that this decision was contrary to and an unreasonable application of 21 clearly established federal law. (Doc. 21 at 128.) He contends that an accomplice liability 22 instruction can never “be constitutionally delivered during the aggravation phase of a 23 sentencing proceeding.” (Doc. 38 at 83.) He further argues that the instructions in his case 24 led the jury to impermissibly apply the aggravating factors to him based on Finch’s 25 conduct. (Doc. 21 at 128-31.) 26 These arguments lack merit. Ellison cites no authority (let alone clearly established 27 federal law) for the proposition that accomplice liability is inapplicable at the aggravation 28 stage of a capital sentencing, and the Court has found none. Additionally, Ellison’s

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1 assertion that the accomplice instruction allowed Finch’s conduct to be imputed to him is 2 belied by the record (and, at a minimum, the Arizona Supreme Court did not act 3 unreasonably by concluding otherwise). 4 On federal habeas review of a claim of instructional error by a state court, federal 5 courts are bound by a state court’s interpretation of state law. Richey, 546 U.S. at 76 (“We 6 have repeatedly held that a state court’s interpretation of state law, including one 7 announced on direct appeal of the challenged conviction, binds a federal court sitting in 8 habeas corpus.”); Estelle, 502 U.S. at 71-72 (the assertion that a jury instruction “was 9 allegedly incorrect under state law is not a basis for habeas relief”). Federal habeas relief 10 based on instructional error is warranted only if the petitioner shows “both that the 11 instruction was ambiguous and that there was a reasonable likelihood that the jury applied 12 the instruction in a way that relieved the State of its burden of proving every element of 13 the crime beyond a reasonable doubt.’” Waddington v. Sarausad, 555 U.S. 179, 190-91 14 (2009) (quoting Estelle, 502 U.S. at 73 n.4). “Our habeas precedent places an ‘especially 15 heavy’ burden on a defendant who . . . seeks to show constitutional error from a jury 16 instruction that quotes a state statute.” Id. at 190. In making this determination, “the 17 instruction ‘may not be judged in artificial isolation,’ but must be considered in the context 18 of the instructions as a whole and the trial record.” Estelle, 502 U.S. at 72 (quoting Cupp 19 v. Naughten, 414 U.S. 141, 147 (1973)). The Supreme Court has explained that “not every 20 ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due 21 process violation.” Middleton v. McNeil, 541 U.S. 433, 437 (2004) (per curiam). “[I]t is 22 not enough that there is some ‘slight possibility’ that the jury misapplied the instruction.” 23 Waddington, 555 U.S. at 191 (quoting Weeks v. Angelone, 528 U.S. 225, 236 (2000)). 24 Rather, “the pertinent question ‘is whether the ailing instruction by itself so infected the 25 entire trial that the resulting conviction violates due process.’” Id. (quoting Estelle, 502 26 U.S. at 72). 27 Viewing the jury instructions as a whole along with the trial record, and taking into 28 account that this Court is bound by the Arizona Supreme Court’s interpretation of Arizona

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1 law, Ellison is not entitled to relief. The instructions were not erroneous under Arizona 2 law. Nor did they permit the jury to impute Finch’s action to Ellison. The accomplice 3 instruction provided that Ellison himself must have acted with “intent to promote or 4 facilitate” the murders. In addition, the instructions with respect to the three aggravating 5 circumstances at issue required the jury to “focus on Ellison’s personal intent and 6 motivation.” Ellison, 140 P.3d at 921. Thus, the accomplice liability instruction did not 7 ‘by itself so infect[]’ the proceedings that Ellison’s sentence violates due process. 8 Waddington, 555 U.S. at 191. 9 Ellison relies on Robinson v. Schriro, 595 F.3d 1086 (9th Cir. 2010), for the 10 proposition that “[t]here is no vicarious liability for cruelty in capital cases absent a plan 11 intended or reasonably certain to cause suffering.” (Doc. 21 at 130.) But Robinson and 12 the case on which it relied, State v. Carlson, 48 P.3d 1180 (Ariz. 2002), involved factual 13 scenarios that are readily distinguishable from this case. 14 In Carlson, the defendant ordered the killing of the victim by two accomplices 15 whom she drove to the victim’s apartment. 48 P.3d at 1185. One of the accomplices closed 16 his eyes before stabbing the victim multiple times, causing the victim to suffer both 17 mentally and physically. Id. The Arizona Supreme Court held that “cruelty was not 18 properly found” by the trial court because the defendant was not a witness to the murder, 19 “did not plan how the murder would be committed and could not have known that [the 20 accomplice] would bungle it by closing his eyes while he repeatedly stabbed [the victim].” 21 Id. at 1193. 22 Similarly, in Robinson, there was no evidence that the defendant was present at the 23 murder, planned for the manner of the murder, or planned that the murder be committed at 24 all. 595 F.3d at 1106. There was “no basis to conclude that Robinson’s home-invasion 25 plan was reasonably certain to cause death, let alone death following suffering,” nor could 26 Robinson “have foreseen with any certainty that his accomplices would ‘bungle’ the home 27 invasion and murder [the victim] in the manner they did.” Id. 28 In contrast to those cases, Ellison was not only present at the murders but admitted

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1 to binding both victims and holding a pillow over Mr. Boucher’s face. His actions directly 2 caused “mental anguish” sufficient to satisfy the “especially cruel” aggravating factor. 3 Ellison, 140 P.3d at 925. He also directly participated in the “a plan intended or reasonably 4 certain to cause suffering,” which was “absent” in Robinson and Carlson. Robinson, 595 5 F.3d at 1105. 6 I. Claim 22 7 In Claim 22, Ellison alleges that the application of the especially-cruel, pecuniary- 8 gain, and multiple-murders aggravating circumstances violated his rights under the Sixth, 9 Eighth, and Fourteenth Amendments. (Doc. 21 at 131-41.) The Arizona Supreme Court, 10 independently reviewing Ellison’s death sentence, rejected his contention that those factors 11 were not supported by the evidence. Ellison, 140 P.3d at 924-27. Ellison now argues that 12 the court’s decision was contrary to and an unreasonable application of clearly established 13 federal law and based on an unreasonable determination of the facts. (Doc. 21 at 131.) 14 Whether a state court misapplied an aggravating factor to the facts of a case is a 15 question of state law. Lewis v. Jeffers, 497 U.S. 764, 780 (1990). Federal habeas review 16 of a state court’s application of an aggravating factor is not some “sort of de novo review” 17 but instead “is limited, at most, to determining whether the state court’s finding was so 18 arbitrary or capricious as to constitute an independent due process or Eighth Amendment 19 violation.” Id. 20 In Jeffers, the Supreme Court held that the appropriate standard for federal habeas 21 review of a state court’s application of an aggravating circumstance is the “rational 22 factfinder” test: “whether, after viewing the evidence in the light most favorable to the 23 prosecution, any rational trier of fact could have found the essential elements” of the 24 aggravating factor. Id. (quoting Jackson, 443 U.S. at 319). If the facts support conflicting 25 inferences, reviewing courts “must presume—even if it does not affirmatively appear in 26 the record—that the trier of fact resolved any such conflicts in favor of the prosecution, 27 and must defer to that resolution.” Cavazos, 565 U.S. at 6 (quoting Jackson, 443 U.S. at 28 326).

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1 Additionally, as noted above, AEDPA requires federal courts to apply “additional 2 deference” to Jackson sufficiency-of-the-evidence claims. Coleman, 566 U.S. at 651 3 (“Jackson claims face a high bar in federal habeas proceedings because they are subject to 4 two layers of judicial deference.”); Parker v. Matthews, 567 U.S. 37, 43 (2012) (noting 5 “this twice-deferential standard”). The Ninth Circuit has stated that this “double dose of 6 deference . . . can rarely be surmounted.” Boyer v. Belleque, 659 F.3d 957, 964-65 (9th 7 Cir. 2011). 8 1. Especially Cruel 9 During the aggravation phase of trial, Judge Moon instructed the jury on the 10 especially-cruel prong of the “especially cruel, heinous or depraved” factor. (RT 2/9/04 at 11 99-100.)34 The jury found that the factor had been proved and the Arizona Supreme Court 12 agreed on direct appeal. Ellison, 140 P.3d at 925 (“The State proved the especially cruel 13 aggravator based on extreme mental anguish beyond a reasonable doubt.”). 14 “In order to show a murder was especially cruel, the State must prove beyond a 15 reasonable doubt that the victim suffered either physical pain or mental distress.” Id. at 16 924. “The defendant must intend that the victim suffer or reasonably foresee that there is 17 a substantial likelihood that the victim will suffer as a consequence of the defendant’s acts.” 18 Id. at 925 (quotation omitted). The Arizona Supreme Court “examine[s] the entire murder 19 transaction and not simply the final act that killed the victim.” Id. (quotation omitted). 20 Especially-cruel cruelty can be proved by showing the victim suffered physical pain or 21 mental anguish. Id. at 924-25. “Mental anguish is established if the victim experienced 22 significant uncertainty as to her ultimate fate, or if the victim was aware of a loved one’s 23 suffering.” Id. at 925 (quotation omitted). In its independent review of this factor, the 24 Arizona Supreme Court found that “the evidence here establishes that the victims were 25 conscious when they were bound and aware of each other’s suffering. The evidence also 26 27 34 “[T]he (F)(6) aggravator is stated in the disjunctive, indicating that evidence of any one of the statutory prongs, ‘heinous,’ ‘cruel,’ or ‘depraved’ will support a finding that the 28 (F)(6) aggravator is present.” State v. Cromwell, 119 P.3d 448, 456 (Ariz. 2005).

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1 establishes that the Bouchers were uncertain as to their ultimate fate after being attacked 2 and bound by two men in their own house at night, and they then heard one ordering the 3 other to kill Mr. Boucher.” Id. 4 Ellison asserts that the finding of mental anguish was unsupported. (Doc. 21 at 132- 5 35.) He also argues that any suffering was too brief to satisfy the especially-cruel factor. 6 (Id. at 134.) 7 As noted, this Court must apply two levels of deference to its assessment of the 8 Arizona Supreme Court’s determination that the especially-cruel factor was proved. The 9 Court first concludes that a rational factfinder, viewing the evidence in the light most 10 favorable to the prosecution, could have found that the victims suffered mental anguish. 11 Jeffers, 497 U.S. at 780; Jackson, 443 U.S. at 319. The jury heard testimony that when 12 Ellison entered the house (at which point Finch had already been inside for 10 minutes), 13 Mrs. Boucher was in the living room and Mr. Boucher was in the bedroom. (RT 2/9/04 at 14 10.) Upon entry, Ellison gathered cords and tape to be used to “tie up the Bouchers.” (Id.)35 15 Mrs. Boucher was then ordered to go to the bedroom and sit on the floor. (Id. at 11.) Finch 16 then pulled out a gun and instructed Ellison to it to “kill the old man.” (Id.) Finch then 17 strangled Mrs. Boucher while Ellison held a pillow over Mr. Boucher’s face “for a period 18 of time.” (Id. at 11-12.) Ellison then removed the pillow while Mr. Boucher’s “chest was 19 still moving” and “told [Finch] that he would have to finish him off.” (Id. at 12.) 20 Additionally, when her body was discovered, Mrs. Boucher had bruises and blood on her 21 face. (RT 2/6/04 at 139.) From these facts, a rational factfinder could easily find that the 22 victims suffered mental anguish, consisting of both significant uncertainty as to their 23 ultimate fate and awareness of a loved one’s suffering. 24 That conclusion is reinforced by the second level of deference required under 25 AEDPA. The Arizona Supreme Court’s determination that the especially-cruel factor was 26 27 35 Although Ellison initially denied that he personally tied up the Bouchers, “[l]ater in 28 the interview he did say that he had actually assisted [Finch] in tying up both of the Bouchers.” (RT 2/9/04 at 13.)

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1 proved was not “objectively unreasonable.” Cavazos, 565 U.S. at 6. 2 2. Pecuniary Gain 3 Under the law in effect at all relevant times, an aggravating factor existed where 4 “[t]he defendant committed the offense as consideration for the receipt, or in expectation 5 of the receipt, of anything of pecuniary value.”36 6 “Under Arizona law, a finding that a murder was motivated by pecuniary gain for 7 purposes of section 13-703(F)(5) must be supported by evidence that the pecuniary gain 8 was the impetus for the murder, not merely the result of the murder.” Moormann v. Schriro, 9 426 F.3d 1044, 1054 (9th Cir. 2005). However, “pecuniary gain aggravation does not 10 require a motive to kill. Aggravation under this factor may also be based upon a causal 11 connection between the pecuniary gain objective and the killing.” State v. Canez, 42 P.3d 12 564, 590 (Ariz. 2002), supplemented, 74 P.3d 932 (Ariz. 2003). “The needed connection 13 between expectation of pecuniary gain and a motive for murder often results from a finding 14 that one of the defendant’s motives in committing the murder was to facilitate the taking 15 of or ability to retain items of pecuniary value.” State v. Sansing, 26 P.3d 1118, 1125 (Ariz. 16 2001), vacated on other grounds, 536 U.S. 954 (2002). In Sansing, the Arizona Supreme 17 Court explained that “an unexpected or accidental death that occurs during the course of or 18 flight from a robbery, but which was not committed in furtherance of pecuniary gain, does 19 not provide sufficient basis for an F.5 finding. Similarly, the sole fact that a defendant 20 takes items or money from the victim does not establish pecuniary gain as a motive for the 21 22 36 In 2019, Arizona repealed and replaced this factor. State v. Greene, 527 P.3d 322, 23 331 (Ariz. 2023) (“With respect to § 13-751(F)(5), the legislature amended its language, combined it with the § 13-751(F)(4) aggravating circumstance, and renumbered the new 24 provision as § 13-751(F)(3).”). Under the new version, an aggravating factor exists where: 25 “The defendant procured the commission of the offense by payment, promise of payment, or anything of pecuniary value, or the defendant committed the offense as the result of 26 payment, or a promise of payment, or anything of pecuniary value.” A.R.S. § 13-751(F)(3). 27 The new factor is “prospective only” and does “not provide a basis for relief” for capital sentences that were constitutionally imposed before the amendment. Greene, 527 P.3d at 28 328.

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1 murder.” Id. In other words, Arizona law distinguishes between cases in which “one of 2 the defendant’s motives in committing the murder was to facilitate the taking of or ability 3 to retain items of pecuniary value” and cases of “robberies gone bad.” Id. The Arizona 4 Supreme Court has explained, however, that when “the killing and robbery take place 5 almost simultaneously, we will not attempt to divine the evolution of the defendant’s 6 motive in order to discern when, or if, his reason for harming the victim shifted from 7 pecuniary gain to personal ‘amusement’ or some other speculative nonpecuniary drive.” 8 Canez, 42 P.3d at 591. 9 Ellison first argues that “the evidence adduced at the sentencing phase did not 10 support a finding that the murders themselves—rather than the burglary more broadly— 11 were committed in the expectation of pecuniary gain.” (Doc. 21 at 135.) The Arizona 12 Supreme Court rejected this argument: 13 The record demonstrates that Ellison’s motive for the murders was to facilitate the burglary. Ellison admits going to the Bouchers’ home with the 14 intent to commit a burglary. Evidence showed that Ellison was familiar with 15 both the area and the Bouchers. He and Finch wore gloves while inside the Bouchers’ home but did not attempt to disguise their identities. Although 16 Ellison argued he did not intend to kill anyone and that Finch forced him to 17 participate in the murders at gunpoint, the State presented contrary evidence. We find this evidence establishes that Ellison planned the burglary and, in 18 order to escape and avoid identification, killed the Bouchers. 19 Ellison also argues that the evidence the victims were bound actually 20 supports the conclusion that the burglary was complete before the victims were killed. Thus, there was a different motive for the murders. This 21 argument is not persuasive. Ellison admitted to police that Finch and he took property from the Bouchers’ bodies and residence after they were killed. 22 Moreover, if Ellison was motivated to kill the Bouchers in order to avoid 23 identification, it does not matter whether the burglary or the murders occurred first. 24 25 Ellison, 140 P.3d at 926.

26 These conclusions were not unreasonable. As Respondents note, despite Ellison’s

27 assertion that Finch planned the burglary and picked the Bouchers’ house, it was Ellison

28 who was familiar with the Kingman neighborhood where the Bouchers lived because it

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1 was only two blocks from his parents’ home, and in fact Ellison had personally interacted 2 with the Bouchers when he worked on their house. (RT 2/6/04 at 108.) Ellison admitted 3 that he used his girlfriend’s van to drive to Kingman with Finch. (RT 2/9/04 at 16.) Ellison 4 also supplied the latex gloves worn during the crimes. (Id.) It was thus reasonable for the 5 Arizona Supreme Court to determine that “this evidence establishes that Ellison planned 6 the burglary and, in order to escape and avoid identification, killed the Bouchers.” Ellison, 7 140 P.3d at 926 (citations omitted). 8 Sansing is not to the contrary. There, the Arizona Supreme Court rejected the 9 argument that the defendant murdered the victim in order to “facilitate escape and hinder 10 detection by the police.” 26 P.3d at 1127. The court noted that, after the murder, Sansing 11 left the victim’s body in his backyard (where it was visible over a fence) and then drove to 12 his sister’s home to confess. Id. The court also noted that killing the victim “did not 13 eliminate the only witness to the crime: the defendant’s wife and their children were present 14 during the entire chain of events.” Id. This case is easily distinguishable. Even though, 15 as Ellison emphasizes, Ellison may not have disguised his identify when speaking with the 16 bartender at a bar near the Bouchers’ house (Doc. 21 at 137), the bottom line is that he and 17 Finch killed the only two witnesses to the burglary. 18 Notably, Sansing cited State v. Greenway, 823 P.2d 22 (Ariz. 1991), as a case where 19 a “murder committed to facilitate escape and/or hinder detection by police furthers the 20 pecuniary interest of the criminal.” Sansing, 26 P.3d at 1126. “In Greenway, the defendant 21 murdered his victims execution-style after robbing their home. Greenway entered the 22 home knowing the victims were present and made no attempt to disguise his identity; the 23 practical effect of the murders was to eliminate the only witnesses to the crime.” Sansing, 24 26 P.3d at 1126. It was reasonable for the Arizona Supreme Court to conclude that the 25 same was true here. 26 Ellison also argues that the jury’s consideration of pecuniary gain “resulted in 27 impermissible double counting,” with burglary serving both as the predicate offense for 28 felony murder and as an aggravating factor. (Doc. 21 at 138-39.) Ellison asserts that under

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1 these circumstances the pecuniary gain factor does not “genuinely narrow the class of 2 persons eligible for the death penalty.” (Id. at 139, quoting Zant v. Stephens, 462 U.S. 862, 3 877 (1983)). The Arizona Supreme Court rejected this argument, relying on Greenway. 4 Ellison, 140 P.3d at 926. 5 Ellison’s arguments are foreclosed by Woratzeck v. Stewart, 97 F.3d 329 (9th Cir. 6 1996). There, the habeas petitioner argued “that aggravating factor (F)(5)—that the crime 7 was committed with the expectation of receiving anything of pecuniary value—failed . . . 8 to channel the discretion of the sentencer . . . [because] factor (F)(5) is automatically found 9 in cases where one is convicted of robbery felony-murder.” Id. at 334. The Ninth Circuit 10 disagreed, explaining that “[a]n examination of the application of factor (F)(5) in Arizona 11 does not support Woratzeck’s argument. . . . It is not true that everyone convicted of 12 robbery felony-murder is automatically death eligible. The State needs to prove at 13 sentencing that the killing was done with the expectation of pecuniary gain. Even if it is 14 true that under many circumstances a person who kills in the course of a robbery is 15 motivated to do so for pecuniary reasons, that is not necessarily so.” Id. 16 At any rate, applying the double layers of deference required under Jackson and 17 AEDPA, Ellison’s challenge to the state courts’ application of the pecuniary-gain factor is 18 meritless. 19 3. Multiple Murders 20 To satisfy Arizona’s multiple-murders aggravating circumstance, “[i]t is not enough 21 for the jury to convict the defendant of multiple homicides. The murders must have a 22 temporal, spatial, and motivational relationship such that they were a part of a continuous 23 course of criminal conduct.’” Ellison, 140 P.3d at 926 (cleaned up). “The multiple 24 murders aggravator applies so long as the defendant was found criminally liable, even if 25 he himself did not physically commit the murders.” Id. 26 In denying this claim on direct appeal, the Arizona Supreme Court explained: 27 Ellison was convicted of both felony murder and premeditated murder in the deaths of each victim. The guilt proceeding jury also made Enmund/Tison 28 findings regarding the murders. The Bouchers, a married couple residing

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1 together, were both killed in the same room at approximately the same time. 2 According to Ellison, he and Finch went to the Bouchers’ home to commit a burglary. He does not claim the two victims were killed for different reasons. 3 Id. The court concluded that the evidence thus established the required “temporal, spatial, 4 and motivational relationship” between the two murders, “regardless of whether Ellison 5 physically committed the murders.” Id. 6 Ellison argues that the Arizona Supreme Court unreasonably found that the 7 motivations for the murders were related because “[t]he evidence at trial was undisputed 8 that Finch killed Lillian Boucher. If . . . Ellison caused Joseph Boucher’s death, the 9 evidence at trial showed that he was coerced by Finch. Ellison’s motive therefore was 10 unrelated to Finch’s. If, instead, . . . Finch killed both victims, then [the Arizona Supreme 11 Court] found this aggravating circumstance based on Finch’s conduct rather than Ellison’s. 12 By interpreting the (F)(8) aggravating circumstance to preclude an individual 13 determination of Ellison’s culpability relative to a codefendant who actually committed the 14 murders, the Arizona Supreme Court violated the U.S. Supreme Court’s precedents 15 requiring individualized assessment.” (Doc. 21 at 140.) 16 This argument is unavailing. Under Arizona law, the fact that Ellison was convicted 17 of premeditated and felony murder with respect to both victims satisfies the motivational 18 relationship requirement. State v. Prasertphong, 76 P.3d 438, 442 (Ariz. 2003) (rejecting 19 defendant’s argument that the multiple-murders aggravator did not apply to him “because 20 he was not the killer, and did not share in [co-defendant’s] motivation to kill the victims”). 21 At any rate, applying the double layers of deference required under Jackson and AEDPA, 22 Ellison’s challenge to the state courts’ application of the multiple-murders factor is 23 meritless. 24 J. Claim 23 25 In Claim 23, Ellison alleges that Arizona’s death-penalty statute created a 26 “presumption of death” by requiring him to prove that he was entitled to a life sentence, in 27 violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Doc. 21 at 141-44.) 28 The Arizona Supreme Court’s denial of this claim, Ellison, 140 P.3d at 922, was

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1 neither contrary to nor an unreasonable application of clearly established federal law. The 2 United States Supreme Court has rejected the argument that Arizona’s death penalty statute 3 is impermissibly mandatory and creates a presumption in favor of the death penalty. 4 Walton, 497 U.S. at 651-52; see also Smith v. Stewart, 140 F.3d 1263, 1272 (9th Cir. 1998). 5 K. Claim 24 6 In Claim 24, Ellison alleges that his rights under the Eighth and Fourteenth 7 Amendments were violated when the trial court instructed the jury, pursuant to Arizona 8 law, that they were required to determine unanimously whether he should be sentenced to 9 death. (Doc. 21 at 145-46.) 10 The Arizona Supreme Court’s denial of the claim, Ellison, 140 P.3d at 922, was 11 neither contrary to nor an unreasonable application of clearly established federal law. In 12 Mills v. Maryland, 486 U.S. 367 (1988), the Supreme Court reversed a capital sentence 13 because jurors viewing the instructions and verdict form “well may have thought they were 14 precluded from considering any mitigating evidence unless all 12 jurors agreed on the 15 existence of a particular such circumstance.” Id. at 384. Similarly, in McKoy v. North 16 Carolina, 494 U.S. 433 (1990), the Supreme Court reversed a death sentence where “the 17 instructions and verdict form expressly limited the jury’s consideration to mitigating 18 circumstances unanimously found.” Id. at 444 n.8. 19 But here, unlike in Mills and McCoy, unanimity was not required with respect to 20 individual mitigating circumstances. Instead, the jury was instructed that unanimity was 21 required only with respect to the verdict, not with respect to any particular mitigating 22 circumstance: 23 The jurors do not have to all agree that a mitigating circumstance has been proven to exist. Each juror may consider any mitigating circumstances 24 found by that individual juror. In determining whether to impose a sentence 25 of death, each individual juror shall take into account the aggravating circumstances that all the jurors have found to be proven and shall take into 26 account any mitigating circumstances that the individual juror has found to 27 be proven. 28 (RT 2/10/04 at 4-5.)

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1 It was not contrary to or an unreasonable application of clearly established federal 2 law for the Arizona Supreme Court to conclude that this instruction was permissible under 3 Mills and McKoy. See, e.g., Smith v. Spisak, 558 U.S. 139, 148 (2010) (finding no violation 4 of Mills and McKoy where “the instructions did not say that the jury must determine the 5 existence of each individual mitigating factor unanimously”); Howard v. Gittere, 392 F. 6 Supp. 3d 1205, 1223 (D. Nev. 2019) (“As one can readily see, the relevant instructions and 7 verdict form provided Howard’s jury bear faint resemblance to those in Mills. Nowhere 8 did they say or imply that the jury must determine the existence of a mitigating factor 9 unanimously. A unanimity requirement was imposed only as to the verdict . . . .”); Garcia, 10 2022 WL 1166408 at *47 (“Garcia’s argument that the unanimity requirement 11 impermissibly limited the jury’s consideration of mitigating evidence fails because 12 unanimity was not required with respect to individual mitigating circumstances. Instead, 13 the jury was properly instructed that unanimity was required only with respect to the 14 verdict.”). 15 L. Claim 25 16 In Claim 25, Ellison alleges that the trial court violated his Eighth and Fourteenth 17 Amendments rights by precluding him from presenting mitigating evidence related to the 18 disparity in sentences between himself and Finch. (Doc. 21 at 146-49.) The Arizona 19 Supreme Court denied this claim on direct review. Ellison, 140 P.3d at 922-23. 20 During the penalty phase of trial, defense counsel elicited testimony that Finch 21 received a life sentence. As a result, the state asked to present evidence regarding the 22 mitigating circumstances found in Finch’s case. (RT 2/12/04 at 123.) Ellison’s counsel, 23 in turn, refused to stipulate to admission of the special verdict from Finch’s sentencing. (Id. 24 at 123-25.) Upon agreement of the parties, Judge Moon eventually instructed the jurors 25 that Finch and Ellison were tried separately before different juries, that “[s]ome of the 26 evidence was different,” and that the “aggravating circumstances and mitigating 27 circumstances proven in the Finch case were different.” (Id. at 202.) The court concluded: 28 “There is no way to explain all of the differences to you [the jury] under our legal system.

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1 Therefore you are instructed to accept as evidence only that on the basis of those 2 circumstances, the codefendant, Richard Finch, was not sentenced to death for either 3 murder.” (Id.) The court directed the jury not to speculate about the aggravating or 4 mitigating circumstances present in Finch’s case “beyond any differences that will be or 5 have been presented by the testimony in this case.” (Id.) Following that instruction, 6 Detective Watson testified that Finch was “somewhat slow,” was not on parole at the time 7 of the murders, and had no prior record of “serious offenses.” (Id. at 204-05.) 8 On direct appeal, Ellison argued that “by limiting the evidence regarding Finch’s 9 sentence, the trial judge effectively prohibited the jury from considering the disparate 10 sentences.” Ellison, 140 P.3d at 922-23. In denying the claim, the Arizona Supreme Court 11 noted that although a disparity in sentences between codefendants and or accomplices can 12 be a mitigating circumstance, “[o]nly the unexplained disparity is significant.” Id. at 923. 13 The court then stated that Ellison had waived any argument that the entire special verdict 14 from Finch’s sentencing should have been admitted. Id. The court explained that it would 15 be unfair to admit only certain facts about Finch’s verdict, such as the judge’s 16 determination that the State failed to the prove pecuniary gain aggravating factor. Id. The 17 court the reiterated that “[a] disparity in sentences is constitutionally relevant only if it is 18 unexplained” so “if particular facts about Finch’s sentence were admitted, all of the 19 differences between the aggravators and mitigators of each case should be admitted to 20 avoid misleading the jury.” Id. The court concluded: 21 22 Here, there was no unexplained disparity. In Finch’s case, Judge Moon determined that Ellison, as the ringleader, forced Finch to kill Mrs. Boucher. 23 Judge Moon determined that Finch acted under duress and was not motivated by pecuniary gain. Additionally, Finch, unlike Ellison, was not on parole 24 and had no serious felonies in his criminal background. Thus, Judge Moon 25 did not abuse his discretion in limiting the evidence so as to accommodate Ellison’s disparate sentences argument while avoiding undue prejudice to 26 either side. 27 Id. (citations and footnote omitted). 28 Ellison now contends this decision “turns on unreasonable factual determinations”

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1 about Finch’s criminal history. (Doc. 21 at 149.) Ellison notes that Judge Moon found 2 that Finch “was previously convicted of at least three felonies, possession of controlled 3 substance in 1997, forgery in 1997, and possession of stolen property in 1998.” (Id.) 4 Ellison also states that Finch “appears to have had at least one outstanding warrant from 5 Washington.” (Id.) 6 As Respondents note, these assertions do not establish that any of the Arizona 7 Supreme Court’s findings were inaccurate with respect to the aggravating factors that 8 helped account for the disparity in sentences between Ellison and Finch. The felonies in 9 Finch’s record were not “serious offenses” for purposes of A.R.S. § 13-703(F)(2), and 10 Finch was not on parole when the murders were committed, § 13-703(F)(7). Both of those 11 aggravating factors, in contrast, applied to Ellison. 12 Ultimately, this claim fails because the jury heard evidence of the disparity in 13 sentences and any disparity was explained. See, e.g., Sims v. Singletary, 155 F.3d 1297, 14 1316 (11th Cir. 1998) (rejecting claim that it was error for the sentencing court not to 15 consider sentencing disparity between Sims and his co-defendants where Sims was the 16 triggerman and the jury and court knew that co-defendants were receiving sentences of two 17 and ten years); Jackson v. Bradshaw, 2007 WL 2890388, *78 (S.D. Ohio 2007), aff’d, 681 18 F.3d 753 (6th Cir. 2012) (“[T]here was already evidence before the jury regarding the 19 disparity in sentences.”). Ellison cites no clearly established federal law that would render 20 the Arizona Supreme Court’s denial of this claim objectively unreasonable. 21 M. Claim 26 22 In Claim 26, Ellison alleges that the trial court improperly admitted irrelevant and 23 prejudicial victim-impact evidence in violation the Eighth and Fourteenth Amendments. 24 (Doc. 21 at 149-54.) The Arizona Supreme Court denied this claim on direct appeal. 25 Ellison, 140 P.3d at 923-24. 26 After the parties rested during the sentencing phase of trial, Vivian Brown, the 27 28

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1 victims’ daughter, made a victim impact statement pursuant to A.R.S. § 13-703.01(R).37 2 Before her statement, Judge Moon had told her she could not recommend a sentence. 3 Brown spoke about the “impact on what happened to my mother and father,” showed the 4 jury family photographs, and provided “a little history” of her parents’ lives so the jury 5 would “know who they were.” (RT 2/12/2004 at 209-13.) Brown then “touch[ed] a little 6 bit on—on how this has affected us.” (Id. at 213-14). At this point, Brown stated: 7 But I—what I want to try to express is this impact, because in my heart I 8 know my mother and father so well. I know how they—when they were 9 dying, I know how they were trying to help each other. I live with that memory every day. I have their pictures out, because I will not put them 10 away. They are my mother and father. And every day I look at them, and I 11 have wonderful thoughts, and then all of a sudden there it is. They’re dying. Tied, taped, struggling to help each other. They could hear. I know they 12 could still hear. Any time they were sick, they were worried sick about each 13 other. They were totally concerned, totally bonded, totally in love. They 14 fought like—like anybody. I mean, it was a normal relationship. But they had that total love. And that’s what I live with every day, is how they died. 15 16 (RT 2/12/04 at 215-16.) Brown concluded: “I just don’t know what else to say. But this 17 is how it’s impacted me and my family and my brother and his family.” (Id. at 217.) The 18 parties declined the judge’s invitation to have Brown sworn and cross-examined. (Id.) 19 Over Ellison’s objection, the trial court also granted the prosecution’s request to allow one 20 in-life photograph of the victims to be taken to the jury room during deliberations. (RT 21 2/13/04 at 3-10.) 22 In his final penalty-phase instructions, Judge Moon informed the jurors that the 23 purpose of the victim-impact statement is to allow them “to see each murder victim as a 24 unique person and to see the loss resulting from their murders.” (Id. at 20-21.) It was only 25 26 37 The statute, now codified at A.R.S. § 13-752(R), provides that a victim “may present 27 information about the murdered person and the impact of the murder on the victim and other family members and may submit a victim impact statement in any format to the trier 28 of fact.”

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1 for this “limited purpose” that the jury could consider the victim-impact information about 2 the victims. (Id. at 21.) Judge Moon explained that the jurors “must not consider any 3 opinion you feel the victims’ family may have about the appropriate sentence for either 4 murder.” (Id.) He instructed the jury that the victim-impact information “is not an 5 aggravating circumstance and must not be considered by you as an aggravating 6 circumstance” and that jurors may not “consider the relative worth of human beings” in 7 making their sentencing decision. (Id.) Judge Moon then reiterated that the jury must 8 make its “penalty phase decision based solely upon [its] evaluation of the aggravating and 9 any mitigating circumstances.” (Id.) He told the jury its decision “must be based on reason 10 rather than emotion.” (Id. at 20.) 11 The presentation of victim-impact evidence in a capital sentencing is not per se 12 unconstitutional. In Booth v. Maryland, 482 U.S. 496 (1987), the Supreme Court held that 13 the introduction of a victim-impact statement to a capital sentencing jury violated the 14 Eighth Amendment. However, in Payne v. Tennessee, 501 U.S. 808 (1991), the Court 15 overruled Booth in part. Payne explained that the “State has a legitimate interest in 16 counteracting the mitigating evidence which the defendant is entitled to put in, by 17 reminding the sentencer that just as the murderer should be considered as an individual, so 18 too the victim is an individual whose death represents a unique loss to society and in 19 particular to this family.” 501 U.S. at 825 (cleaned up). “A State may legitimately 20 conclude that evidence about the victim and about the impact of the murder on the victim’s 21 family is relevant to the jury’s decision as to whether or not the death penalty should be 22 imposed.” Id. at 827. Therefore, the Court concluded, “if the State chooses to permit the 23 admission of victim impact evidence and prosecutorial argument on that subject, the Eighth 24 Amendment erects no per se bar.” Id. However, the Court left intact Booth’s prohibition 25 on the admission of characterizations and opinions about the crime, the defendant, or the 26 appropriate sentence. Id. at 830 n.2. See generally Bosse v. Oklahoma, 580 U.S. 1, 2 27 (2016) (“In [Booth], this Court held that the Eighth Amendment prohibits a capital 28 sentencing jury from considering victim impact evidence that does not relate directly to the

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1 circumstances of the crime. Four years later, in [Payne], the Court granted certiorari to 2 reconsider that ban on victim impact evidence relating to the personal characteristics of the 3 victim and the emotional impact of the crimes on the victim's family. The Court held that 4 Booth was wrong to conclude that the Eighth Amendment required such a ban.”) (cleaned 5 up). 6 In denying Ellison’s claim on appeal, the Arizona Supreme Court first upheld the 7 constitutionality of A.R.S. § 13-703.01(R), finding that victim-impact statements in capital 8 cases “are relevant to the issue of the harm caused by the defendant” and, so long as the 9 victim does not recommend a particular sentence, do not violate the Eighth Amendment. 10 Ellison, 140 P.3d at 923-24. The court noted that Judge Moon “properly instructed Brown 11 not to make a sentencing recommendation” and “instructed the jurors that they could 12 consider Brown’s statements only to understand the victims as unique individuals; they 13 could not consider her statements as establishing an aggravating circumstance or as 14 providing a sentencing recommendation.” Id. at 924. With respect to the photograph, the 15 court “recognize[d] the danger that photos of the victims may be used to generate sympathy 16 for the victim and his or her family” but explained that “it has refused . . . to adopt a per se 17 rule barring all in-life photos in capital murder cases,” leaving it to the trial court “in each 18 instance to exercise sound discretion in balancing probative value against the risk of unfair 19 prejudice.” Id. (quotations omitted). The court concluded that Judge Moon “did not abuse 20 his discretion in allowing the jurors to take into their deliberations one in-life photo, which 21 was ‘benign’ as compared to the victims’ post-death photos.” Id. (citations omitted). 22 Ellison contends that portions of Brown’s victim-impact statement violated Booth 23 and Payne by going beyond the effects of the crime on her life and offering impermissible 24 characterizations about the crime, such as “Tied, taped, struggling to help each other. They 25 could hear. I know they could still hear.” (Doc. 21 at 150-51.) He argues that the Arizona 26 Supreme Court unreasonably applied Payne by failing to recognize that the decision left 27 intact Booth’s prohibition on characterizations and opinions about the crime, as well as 28

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1 recommendations about the appropriate sentence. (Id. at 152.)38 2 Brown’s statement did not offer characterizations of the defendant or a 3 recommendation as to the appropriate sentence. Payne, 501 U.S. at 830 n.2. Nevertheless, 4 the Court agrees with Ellison that Brown, in describing the emotional effect of the murders, 5 offered opinions and characterizations of the facts of the crimes. Notwithstanding the 6 context in which they were offered, in which Brown was expressing her feelings about the 7 loss of her parents, these comments likely fall into one of the categories that remain 8 prohibited under Payne and Booth. See, e.g., Lockett v. Trammell, 711 F.3d 1218, 1238 9 (10th Cir. 2013) (admission of statement describing details of the crime and speculating 10 about the victim’s thoughts and feelings during the crime violated the Eighth Amendment). 11 But see Simmons v. Bowersox, 235 F.3d 1124, 1134 & n.4 (8th Cir. 2001) (penalty-phase 12 testimony by victim’s family members describing in detail her thoughts and feelings during 13 the crime was “not meaningfully distinguishable from that approved by the Supreme Court 14 in Payne”). 15 Even so, the admission of these comments did not have a “substantial and injurious 16 effect or influence in determining” Ellison’s sentence. Brecht, 507 U.S. at 637; see Floyd 17 v. Filson, 949 F.3d 1128, 1149 (9th Cir. 2020) (applying harmless error standard to 18 admission of mother’s victim-impact statement); Hooper v. Mullin, 314 F.3d 1162, 1174 19 (10th Cir. 2002) (“[T]he trial court erred by admitting this victim-impact testimony during 20 Petitioner's capital sentencing proceeding. Nonetheless, this constitutional error was 21 harmless because it did not have a ‘substantial and injurious effect or influence in 22 determining the jury's verdict.’”). Given the record as a whole, including the trial court's 23 38 24 In support of his argument that the Arizona Supreme Court misread Payne, Ellison cites the court’s reliance on Lynn v. Reinstein, 68 P.3d 412 (Ariz. 2003), asserting that in 25 Lynn as in Ellison, the court misinterpreted Payne as barring only sentencing 26 recommendations and not characterizations of the crime. This is incorrect. In Lynn, the court accepted jurisdiction in a special action to consider whether a victim’s sentencing 27 recommendations were admissible. Contrary to Ellison’s argument, however, the court 28 acknowledged that Payne left in place the prohibition on a victim’s characterization of the crime. 68 P.3d at 416 & n.4.

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1 instructions that clearly outlined the limited purposes for which Brown’s statement could 2 be considered, the admission of any improper comments was harmless. In Lockett, for 3 example, the Tenth Circuit applied the harmless error standard to a victim-impact statement 4 that “involved two types of evidence prohibited by the Eighth Amendment: 5 characterization of the crime and the defendant and a sentencing recommendation.” 711 6 F.3d at 1238. Among other things, the statement “speculated about Ms. Neiman’s thoughts 7 and feelings during the crime,” including her refusal to cooperate with Lockett, explaining 8 that “Stephanie is going to stand up for her rights no matter what. . . . Maybe that's what 9 Clayton [Lockett] was so scared of.” Id. (citation omitted). The statement “ended with an 10 unambiguous plea to the jury to sentence Mr. Lockett to death.” Id. Nevertheless, the 11 Tenth Circuit concluded that the admission of the statement was harmless because it did 12 not have a substantial and injurious effect on the jury. Id. at 1239. The court noted that a 13 single statement was involved; the statement did not characterize the defendant; and the 14 most powerful parts of the statement were constitutionally permissible accounts of “the 15 effect the murder had on them as a family” and the victim’s “unique and positive qualities.” 16 Id. The court also noted that the “jury was correctly instructed that its sentencing decision 17 was ‘limited to a moral inquiry into the culpability of the defendant, not an emotional 18 response to the evidence.’” Id. (citation omitted). Finally, the court noted that the strength 19 of the aggravating factors militated against any finding that the erroneously admitted 20 portions of the victim-impact statement was prejudicial. Id. at 1240. 21 So, too, here. The admission of Brown’s statement, which did not include a 22 recommendation that Ellison be sentenced to death, did not have a substantial and injurious 23 effect on the jury’s sentencing decision. She did not characterize Ellison, hers was the only 24 victim-impact statement the jury heard, and the bulk of her statement consisted of 25 permissible descriptions of her parents as unique individuals and the effect of their loss on 26 her and her family. Additionally, the jury was properly instructed on the limited purposes 27 for which the statement could be considered, and the aggravating evidence was powerful. 28 For the same reasons, the Court finds that any error was harmless with respect to

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1 the in-life photo of the victims that was provided to the jurors during their deliberations. 2 See, e.g., Plascencia v. Alameida, 467 F.3d 1190, 1203 (9th Cir. 2006) (“Even if the 3 admission of the photographs was improper, the error could not have had ‘a substantial and 4 injurious effect on the jury's verdict.’”) (citation omitted); United States v. Chanthadara, 5 230 F.3d 1237, 1274 (10th Cir. 2000) (victim-impact testimony did not render trial 6 fundamentally unfair where testimony of murder victim's husband and young children was 7 “amplified with numerous colored photographs of [the victim] while she was alive” and 8 jury was allowed to take into the jury room “letters the children had written to their dead 9 mother and a daily journal which described one child’s loss.”). 10 N. Claim 27 11 In Claim 27, Ellison alleges that the trial court violated his rights under the Eighth 12 and Fourteenth Amendments by failing to instruct the jury that a life sentence would not 13 include the possibility of parole. (Doc. 21 at 154-63.) He concedes he did not raise this 14 claim in state court. (Id.) He contends, however, that the ineffective assistance of appellate 15 and PCR counsel excuse the default. (Id.) 16 The Court has already dismissed Claim 27 as meritless. (Doc. 68.) At any rate, 17 Ellison’s attempt to overcome the procedural default of this claim is unavailing. As 18 discussed elsewhere, the ineffective assistance of appellate counsel may be used as cause 19 to excuse a procedural default only where the particular ineffective-assistance allegation 20 was first exhausted in state court as an independent constitutional claim. Carpenter, 529 21 U.S. at 453; Carrier, 477 U.S. at 489-90. Ellison did not raise such a claim of ineffective 22 assistance of appellate counsel here. Meanwhile, under Martinez, the ineffective assistance 23 of PCR counsel can only excuse the default of claims of ineffective assistance of trial 24 counsel. Hunton, 732 F.3d at 1126–27; Martinez, 926 F.3d at 1225; Pizzuto, 783 F.3d at 25 1177. 26 O. Claim 28 27 In Claim 28, Ellison alleges that the trial court violated the Eighth and Fourteenth 28 Amendments by denying his motion to retain a prison expert. (Doc. 21 at 163-66.) He

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1 concedes that he did not raise the claim in state court but again argues that the default is 2 excused by the ineffective assistance of appellate and PCR counsel. (Id. at 163-64.) He is 3 incorrect for the reasons just stated with respect to Claim 27. 4 P. Claim 29 5 In Claim 29, Ellison alleges that his sentence “must be vacated because of the 6 cumulative prejudicial effect of all trial-court sentencing errors in this case.” (Doc. 21 at 7 167-69.) The parties disagree about the claim’s procedural status. Because the claim is 8 plainly meritless, the Court need not address the exhaustion issue. Lambrix, 520 U.S. at 9 524-25. 10 As noted elsewhere, the United States Supreme Court has not specifically 11 recognized the doctrine of cumulative error as an independent basis for habeas relief. Thus, 12 the Arizona Supreme Court’s denial of this claim was not contrary to nor an unreasonable 13 application of clearly established federal law. Alternatively, because the Court has 14 identified at most one harmless sentencing-related error (concerning victim-impact 15 evidence), any cumulative-error claim fails for that reason as well. United States v. Solorio, 16 669 F.3d 943, 956 (9th Cir. 2012) (“There can be no cumulative error when a defendant 17 fails to identify more than one error.”). 18 Q. Claim 45(C) 19 In Claim 45(C), Ellison alleges that counsel performed ineffectively during the 20 sentencing phase of his trial. (Doc. 21 at 216-75.) He raises 10 subclaims of 21 ineffectiveness. (Id.) 22 As explained above, to establish deficient performance under Strickland, a 23 petitioner must show that “counsel’s representation fell below an objective standard of 24 reasonableness.” Strickland, 466 U.S. at 688. Although trial counsel has “a duty to make 25 reasonable investigations or to make a reasonable decision that makes particular 26 investigations unnecessary, . . . a particular decision not to investigate must be directly 27 assessed for reasonableness in all the circumstances, applying a heavy measure of 28 deference to counsel’s judgments.” Id. at 691. In assessing counsel’s investigation, courts

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1 “must conduct an objective review of [counsel’s] performance, measured for 2 reasonableness under prevailing professional norms, which includes a context-dependent 3 consideration of the challenged conduct as seen from counsel’s perspective at the time.” 4 Wiggins v. Smith, 539 U.S. 510, 523 (2003) (citation and quotation marks omitted); see 5 also Rompilla v. Beard, 545 U.S. 374, 381 (2005). “As long as a reasonable investigation 6 was conducted, we must defer to counsel’s strategic choices.” Cox v. Ayers, 613 F.3d 883, 7 899 (9th Cir. 2010). 8 In the context of a capital sentencing, prejudice is assessed by “reweigh[ing] the 9 evidence in aggravation against the totality of available mitigating evidence.” Wiggins, 10 539 U.S. at 534. The “totality of the evidence” includes “both that adduced at trial, and 11 the evidence adduced” in subsequent proceedings. Id. at 536 (citation omitted). “If the 12 difference between the evidence that could have been presented and that which actually 13 was presented is sufficient to ‘undermine confidence in the outcome’ of the proceeding, 14 the prejudice prong is satisfied.” Duncan v. Ornoski, 528 F.3d 1222, 1240 (9th Cir. 2008) 15 (quoting Strickland, 466 U.S. at 694). The burden of showing prejudice is “highly 16 demanding and heavy.” Allen, 395 F.3d at 1000 (citation omitted). 17 1. Additional background 18 a. Sentencing 19 During the sentencing phase of trial, defense counsel called seven witnesses over 20 two days to testify in support of five proposed mitigating circumstances: (1) absence of 21 love and guidance during Ellison’s childhood; (2) drug addiction; (3) diminished capacity; 22 (4) lack of genuine violence in prior convictions; and (5) Ellison’s family members cared 23 about him and did not want him to die. 24 Darnell Sells, the first mitigation witness, was a correctional officer at the Sunrise 25 Community Correctional Center, a group home for juvenile offenders. (RT 2/10/04 at 20.) 26 Ellison, then 15, was a resident at Sunrise during Sells’s tenure there. (Id.) Sells testified 27 that Ellison’s family was not very involved in his case despite living close to the facility. 28 (Id. at 21.) Sells stated that there were not many visits from Ellison’s family and “certainly

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1 not many very productive” meetings. (Id. at 28.) Sells described Ellison’s mother’s 2 relationship with the program as having “no substance to it” and stated that Ellison’s older 3 siblings never visited at all. (Id.) Sells stated that only Ellison’s father was “reasonable 4 . . . [about] coming to see his son.” (Id. at 27.) Sells also recalled that Ellison had one or 5 two “very important and significant surgeries” on his feet while at Sunrise; they were “quite 6 emotional to Charlie at the time.” (Id. at 22.) Before one of the surgeries, Ellison’s family 7 moved to Oregon without telling him or leaving him forwarding information. (Id. at 23- 8 24.) Sells described Ellison as a “very capable student,” “very verbal” but also “private” 9 and a “loner” who would “go along to get along” and was more of a follower than a leader. 10 (Id. at 26-27.) Sells stated that Ellison gravitated toward him because he provided a safe 11 emotional space and because Ellison “enjoyed positive attention from adults.” (Id. at 30.) 12 Sells opined that Ellison was a “sensitive soul” who “has run from himself and his 13 circumstances and the people that have hurt him.” (Id. at 31.) Sells believed that Ellison 14 had been “jilted, neglected, disregarded, unwanted, abandoned emotionally somewhere 15 down the line,” probably by his family. (Id.) Sells testified that Ellison had “personal 16 redeeming value.” (Id. at 32.) According to Sells, Ellison was not “a dangerous mind, a 17 dangerous soul” but a “lost, lonely soul.” (Id. at 33.) According to Sells, Ellison was 18 “capable of things that he doesn’t know he’s capable of. He could be a good, decent human 19 being.” (Id.) 20 The second witness was Russell Reardon. He testified that he met Ellison in 1991 21 or 1992, when Ellison was around 26 years old. (Id. at 42.) Reardon testified that they 22 were close for about a year and a half. (Id. at 43.) Reardon testified that his relationship 23 with Ellison was “very sick”—they were both “very needy and very lonely.” (Id.) Like 24 Sells, Reardon described Ellison as a “lost soul.” (Id.) Reardon testified that he gave 25 Ellison money, which Ellison used to buy alcohol and cocaine. (Id. at 44.) Reardon stated 26 that Ellison’s drug use progressed until he was using cocaine just about every day. (Id. at 27 45.) Reardon acknowledged that he had harmed Ellison by giving him money and 28 facilitating his substance abuse. (Id. at 51.) Reardon also testified about his observations

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1 of Ellison’s family. He stated that Ellison loved his father and they were very close. (Id. 2 at 45.) Ellison’s mother, however, was “Ice. Cold”—the coldest woman Reardon had ever 3 met. (Id.) Reardon stated that she would have no contact with Ellison and “barely let him 4 come around. He almost had to crawl to get any attention from her.” (Id. at 45-46.) 5 Reardon stated that Ellison said he was raised by the television, because all his mother did 6 when he growing up was sit in front of the television. (Id. at 48.) Reardon also testified 7 that Ellison was molested by Ellison’s older brother, Mike. (Id. at 46.) Reardon stated that 8 the molestation still bothered Ellison in his 20s. (Id.) Reardon further testified that Ellison 9 was not a bully. (Id.) “He thought he was, but he wasn’t.” (Id.) According to Reardon, 10 Ellison “acted bad . . . [b]ut underneath, he was always really kind-hearted and was dying 11 for love.” (Id.) When Reardon heard about Ellison’s involvement in the crimes, he 12 couldn’t believe it because he had never seen Ellison “violent in any way, shape, or form.” 13 (Id. at 47.) Reardon stated that the only person Ellison would hurt was himself. (Id.) 14 Reardon did not believe that Ellison premeditated the murders. (Id. at 49, 53.) According 15 to Reardon, Ellison “[l]ived in the now” and “didn’t know how to plan or . . . to prepare 16 himself for the future.” (Id. at 52.) Reardon also described Ellison’s positive qualities, 17 stating that Ellison was artistic, talented, intelligent, and “very sensitive.” (Id. at 51.) 18 Finally, Reardon opined that Ellison “[n]ever had a chance” in life because, aside from his 19 father, his family offered no love, support, or guidance. (Id. at 54.) Reardon stated that he 20 had “never seen a family where people were so cold like that.” (Id.) 21 The third witness was Ellison’s older brother, Ken. Ken testified that Ellison was 22 born with a club foot which required at least two surgeries to correct. (Id. at 70.) Ken 23 stated that the condition caused Ellison pain and made it difficult for him to get around. 24 (Id. at 71-72.) Ken stated that Ellison was also ridiculed by neighbors and schoolmates. 25 (Id. at 86.) Ken testified that his mother was not a “warm and involved parent” and was 26 “pretty constantly angry” at Ellison. (Id. at 72, 74.) According to Ken, her anger “was 27 pretty much there all the time,” even when Ellison was only two or three years old. (Id.) 28 Ken testified that his mother abused him physically, beating him with a belt, and that this

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1 type of physical discipline happened “all the time.” (Id. at 75-76.) Ken described Ellison’s 2 role in the family as the “scapegoat.” (Id. at 77.) “[H]e took the brunt of anybody’s 3 frustration.” (Id. at 78.) According to Ken, Ellison was “picked on” by his mother and 4 older sister “all the time,” even when he hadn’t done anything wrong. (Id. at 88.) Ken also 5 testified that another brother (Mike) and Ellison used drugs together when Mike was 22 6 and Ellison was only 14. (Id. at 80.) Ken stated that he later learned that the two used 7 drugs intravenously. (Id. at 82.) When asked what he would like the jury to consider in 8 making its sentencing decision, Ken explained that his brother “has always had to struggle 9 uphill. . . . He never got a break. . . . There were never any success. Nothing to celebrate. 10 It was always something negative, whether it be his physical handicap or just the breaks in 11 life.” (Id. at 89.) Ken testified that Ellison never “had a chance to ever have anybody to 12 fall back on. To say I’m here for you, let’s work through this. He’s had to do it on his own 13 from as long as I remember . . . .” (Id.) Ken stated that the only people who accepted 14 Ellison “were friends that were already down the wrong path.” (Id. at 90.) Finally, on 15 redirect examination, Ken testified that Ellison had been in a motorcycle accident which 16 left him in a coma. (Id. at 93-94.) 17 The fourth witness was Karl Orr, who testified that he had been Ellison’s juvenile 18 probation officer when Ellison was nine or ten.39 (Id. at 99.) Orr testified that Ellison was 19 “special” and stuck in his mind. (Id. at 100.) Orr stated that Ellison was “a kid that tries. 20 He gets knocked down, he gets up. . . . He was looking for a friend. . . . Somebody to lean 21 on, somebody to help him.” (Id. at 102.) Orr testified that Ellison was a follower, not a 22 leader, and “he needed someone strong to follow.” (Id.) Orr further testified that Ellison 23 “did fabulously well under structure” but his family couldn’t provide the stability he 24 needed. (Id. at 100.) Referring to Ellison’s mother, Orr testified that never in his life had 25 he “met a person . . . who was as cold as this lady was about her son.” (Id.) Orr described 26 Ellison’s father as a “good man” who tried his best to help Ellison but “didn’t have a whole 27 39 28 On cross-examination, Orr acknowledged that the records showed that his contact with Ellison occurred when Ellison was 14. (RT 2/10/04 at 118-19.)

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1 lot of influence on his . . . wife.” (Id. at 101.) Orr stated that Ellison’s siblings “weren’t 2 around for him.” (Id.) Orr opined that they ignored him because of his handicap. (Id.) 3 Orr testified that Ellison would be picked last for games and then “be made fun of by the 4 rest of the kids” when he did participate. (Id. at 106.) According to Orr, Ellison never got 5 a “fair shake” in life or a “chance to shine” because of his physical problems and family 6 circumstances. (Id. at 107.) Orr also noted that Ellison had positive qualities, including a 7 “willingness to help” and a “willingness to be involved.” (Id. at 109.) Orr also described 8 Ellison as a “great artist.” (Id.) Orr testified that the jury should take into consideration 9 Ellison’s ability to succeed in a structured environment as well as the “family situation” he 10 experienced growing up. (Id. at 110, 111.) Orr opined that Ellison may still have 11 something to offer society. (Id.) Finally, Orr testified that he saw cuts and bruises on 12 Ellison that were consistent with physical abuse. (Id. at 115-16.) According to Orr, Ellison 13 stated that his parents had caused the injuries. (Id.) 14 The fifth witness was Mark Goff, an investigator whose firm was retained by the 15 defense to handle mitigation. (RT 2/12/04 at 4.) Goff was responsible for arranging travel 16 for defense witnesses. (Id.) Goff testified that Ken had been late to court on the first day 17 of the sentencing hearing because he could not find his mother, sister, and brother-in-law, 18 who were gambling at a casino in Laughlin where his mother was on a “hot streak.” (Id. 19 at 5-6.) 20 The sixth witness was Dr. Douglas Tucker, a psychiatrist specializing in addiction 21 medicine. (Id. at 9.) Dr. Tucker reviewed a “life history” of Ellison, an “overview” that 22 listed and highlighted various documents. (Id. at 10-11.) Dr. Tucker also received police 23 reports and prior psychological evaluations. (Id. at 11.) Dr. Tucker did not examine or 24 perform any tests on Ellison. Dr. Tucker defined addiction, or dependence, as where a 25 “person’s use of a chemical . . . has been long-standing, has been intensive, and has reached 26 the point where it’s changed . . . [the] brain.” (Id. at 11-12.) Dr. Tucker stated that 27 addiction involves increased tolerance, withdrawal, reduced ability to control use of the 28 drug, and continued use despite negative consequences. (Id. at 12.) Dr. Tucker opined that

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1 genetics and environment are risk factors for addiction. (Id. at 17.) Dr. Tucker also 2 identified early trauma, early loss, early physical and sexual abuse, and psychiatric 3 disorders (e.g., schizophrenia, depression, anxiety and mood disorders, and attention deficit 4 disorder) as risk factors. (Id. at 17-18.) Dr. Tucker testified that methamphetamine is a 5 neurotoxic drug that causes permanent damage to the brain’s nerve cells. (Id. at 24.) 6 According to Dr. Tucker, these changes in the brain leave you “much more vulnerable to 7 drug use.” (Id. at 29-30.) Dr. Tucker explained that although addicts are responsible for 8 the choices they make, they are not responsible for the genes they are born with, or their 9 parents, or any emotional or physical abuse they suffered as children. (Id. at 27, 29.) 10 Counsel then asked Dr. Tucker to assume a series of hypotheticals that mirrored the 11 circumstances of Ellison’s life: a child raised by a neglectful family, unwanted by his 12 parents and largely ignored; a child born with a congenital orthopedic defect requiring a 13 series of surgeries from infancy through teen years; a child given the role of scapegoat in 14 the family; a family that moved frequently; a child sexually abused by his older brother 15 who also introduced him to alcohol and hard drugs; a child sent to reform school for a short 16 period with little participation by the family, with the family moving out of state before 17 another of the child’s scheduled surgeries; self-medication using drugs or alcohol to 18 counter depression; and a child diagnosed with ADHD in his middle to late teenage years. 19 Dr. Tucker addressed each of these hypotheticals. He testified that a neglectful family and 20 parental rejection can lead to depression and social withdrawal. (Id. at 30.) He elaborated 21 that the congenital defect can cause peer rejection and impact self-esteem and character 22 development, while the physical pain can make it difficult to focus or participate in 23 activities. (Id. at 32-33.) Dr. Tucker also stated that a child who is scapegoated and 24 verbally abused internalizes the criticism which becomes their sense of self. (Id. at 33.) 25 Dr. Tucker explained that a child experiencing these circumstances is “being molded in 26 . . . a toxic environment.” (Id. at 33-34.) 27 Dr. Tucker next testified that a child whose family moves frequently is unable to 28 “form long-term attachments to peers.” (Id. at 34.) Dr. Tucker explained that if the child

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1 does not have other peers or long-term relationships, he will be impaired as an adult in his 2 “ability to form long-term relationships.” (Id. at 35.) Dr. Tucker also stated that having a 3 physical deformity makes the process more difficult because it may take even longer for 4 the child to get past the “freak show stage” and be accepted by his peers and form 5 relationships. (Id. at 36.) 6 Next, Dr. Tucker explained that “sexual abuse is devastating for anyone who’s gone 7 through that as a kid.” (Id. at 36-37.) According to Dr. Tucker, the child usually feels “a 8 profound loss of sense of self and of identity and who you are,” as well as a “profound type 9 of rage” and a “profound type of depression.” (Id. at 37.) Dr. Tucker opined that such a 10 child develops a “type of mistrust,” “a loss of capacity for trust in others, because this is 11 what they’ll do to you, and that this loss of trust is exacerbated when the perpetrator is the 12 older brother “who’s supposed to be looking out for you.” (Id. at 38.) According to Dr. 13 Tucker, when that same brother introduces the child to alcohol and intravenous 14 methamphetamine use, “it’s almost too much to think about together in one person.” (Id. 15 at 39.) Dr. Tucker opined that the child’s “capacity to relate to other people, their emotional 16 responses to people and to life in general are going to be vastly different” than those of a 17 child who hasn’t experienced such damage and that, at this point, “the path has been paved 18 for him to become a hard core drug addict and criminal.” (Id. at 39-40.) 19 Counsel next questioned Dr. Tucker about the effects of detention in a juvenile 20 facility, with the caveat that the child’s parents “aren’t terribly involved in his treatment” 21 and in fact moved out of state without leaving a forwarding address or phone number while 22 the child was still in the facility and was scheduled to undergo another surgical procedure. 23 (Id. at 42-45.) Dr. Tucker responded that such parental behavior constitutes “abandonment 24 or rejection” at “exactly the time when they could come in and something could change.” 25 (Id. at 45.) According to Dr. Tucker, such abandonment and a major surgical procedure 26 “would have a major sort of impact on [the child’s] ability to benefit” from his placement 27 in the facility. (Id. at 46.) 28 Next, Dr. Tucker agreed that the scenario he had been describing was consistent

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1 with the self-medication model, in which an individual uses drugs or alcohol to “feel better” 2 if they are depressed. (Id. at 46-47.) 3 The final hypothetical counsel asked Dr. Tucker to consider was that the child, in 4 his middle or late teen years, was diagnosed with ADHD. (Id. at 61.) Dr. Tucker explained 5 that ADHD is a neuropsychiatric disorder whose symptoms include physical hyperactivity, 6 difficulty paying attention, and impulsivity. (Id. at 61-62.) Dr. Tucker stated that ADHD 7 is a disorder of the frontal lobes of the brain, which “have a lot to do with inhibition of 8 impulses and control over our behavior.” (Id. at 62, 64.) Dr. Tucker described ADHD as 9 a potentially “devastating disorder.” (Id. at 62.) He testified that untreated ADHD is a risk 10 factor for substance abuse, depression, unemployment, and criminal behavior. (Id. at 65.) 11 Dr. Tucker acknowledged that although individuals with any of these experiences 12 or conditions do not necessarily become killers, “the tapestry of things here going on is sort 13 of a setup for him—just in terms of criminal behavior, he’s at a much greater risk.” (Id. at 14 49-52.) As risk factors for criminal conduct, Dr. Tucker cited intoxication and withdrawal 15 from drugs and alcohol, brain changes caused by drug and alcohol abuse, rage resulting 16 from the abuse the child has suffered, and a feeling of alienation from society and authority 17 figures. (Id. at 52-53.) Dr. Tucker reiterated that a person with all of these factors “is at 18 much greater risk for a whole variety of what we might call deviant behavior,” including 19 suicide and “committing a whole variety of crimes.” (Id. at 53.) Dr. Tucker explained that 20 the scenario defense counsel described was “kind of a conglomeration of . . . situations and 21 traumas, any one of which would probably be the . . . life organizing trauma for that person, 22 where everything’s really about coping with that, having some self-esteem in spite of that.” 23 (Id. at 55.) He testified that “maybe one or two of these things is fairly workable,” but 24 “[m]ore than that, you’re getting into a very severe population.” (Id. at 58.) He testified 25 that “the damage done in childhood really does carry on beyond adolescence into 26 adulthood.” (Id. at 59.) 27 The seventh and final mitigation witness was Dr. Richard Lanyon, a clinical 28

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1 psychologist, who testified by speaker phone.40 Dr. Lanyon performed psychological and 2 neuropsychological examinations of Ellison. (Id. at 137-38.) Before conducting his 3 examinations, Dr. Lanyon “read a very large quantity of records,” including Ellison’s 4 juvenile records from Phoenix and Oregon, school records from Phoenix, Oregon, and 5 Indiana, police records from Phoenix and Kingman, records from the Mohave County Jail, 6 probation records from Maricopa County, and various interviews, including interviews of 7 Ellison, Ellison’s parents, and Ellison’s girlfriend. (Id. at 139-40.) Dr. Lanyon testified 8 that his neuropsychological examination of Ellison revealed no impairment due to physical 9 damage in the brain. (Id. at 139.) Dr. Lanyon’s psychological examination included a 10 detailed, structured interview, several psychological questionnaires, and a test of general 11 intelligence. (Id. at 141-42.) With this information, Dr. Lanyon was “professionally able” 12 to testify about Ellison’s “psychological health” and the “various factors that have 13 throughout his life influenced that psychological health.” (Id. at 143.) 14 The first factor Dr. Lanyon identified was that Ellison was born with club feet, a 15 serious physical condition that required many surgeries and caused “tremendous physical 16 pain.” (Id. at 144.) Dr. Lanyon testified that Ellison “was a small, sensitive boy, and he 17 was constantly ridiculed by other children, called names like gimpy, stumpy. And he 18 would cry.” (Id.) Dr. Lanyon also stated that Ellison’s family moved frequently so he 19 would encounter new sets of school children “who would ridicule him all over again.” (Id.) 20 Dr. Lanyon testified that, as a result of the surgeries, Ellison fell behind in school and 21 dropped out in ninth grade “because he just couldn’t make it despite average intelligence.” 22 (Id. at 144-45.) 23 Dr. Lanyon testified that other factors influencing Ellison psychological health 24 included “significant physical abuse from his father” and from his brother. (Id. at 146.) 25 Dr. Lanyon stated that Ellison was chosen as the family’s problem child and was not only 26 “punished for tiny, little things he did” but also for things his siblings did. (Id.) Dr. Lanyon 27 28 40 The court told the jury that Dr. Lanyon’s health issues prevented him from testifying in person. (RT 2/12/04 at 97.)

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1 testified that “the only person that paid any attention to [Ellison] at all was his brother 2 Mike, who then sexually molested him and threatened to kill him.” (Id.) 3 Another factor discussed by Dr. Lanyon was Ellison’s ADHD, which wasn’t 4 diagnosed until his teenage years because “nobody paid any attention” to him and which 5 “interfere[d] with his ability to function properly in school.” (Id. at 147.) According to 6 Dr. Lanyon, Ellison was a “lonely kid” who was “simply ignored.” (Id. at 148.) Dr. 7 Lanyon noted that a juvenile court psychologist had described Ellison as a “timid little 8 mouse.” (Id.) 9 The next factor noted by Dr. Lanyon was the constant pain Ellison experienced, 10 both physical and mental. (Id. at 148-49.) Dr. Lanyon testified that the only way Ellison 11 was able to deal with the pain was by doing things to get attention. (Id. at 149.) Dr. Lanyon 12 testified that this dysfunctional, attention-seeking behavior included the armed robbery for 13 which Ellison did prison time. (Id.) 14 The next factor identified by Dr. Lanyon, Ellison’s “very problematic” use of drugs 15 and alcohol, began when Ellison was a “fairly young teenager.” (Id. at 151.) Dr. Lanyon 16 testified that this drug and alcohol use was a “way to escape intolerable thoughts and 17 feelings,” which is why Ellison became addicted so readily as a teenager. (Id. at 151-52.) 18 Dr. Lanyon also testified that his view of Ellison was clarified by the results of the 19 questionnaires he had administered. (Id. at 152.) For example, Dr. Lanyon testified that 20 the results of the Minnesota Multiphasic Personality Inventory (“MMPI-2”) revealed that 21 Ellison “wanted to be viewed as severely psychiatrically disturbed.” (Id.) “[T]he purpose 22 for doing that . . . is they want to get attention and be seen as very, very needy.” (Id. at 23 153.) Dr. Lanyon testified that the results of another questionnaire “show[] him as a person 24 who avoided other people, wanted to be alone. . . .” (Id.) Dr. Lanyon interpreted that result 25 as Ellison trying to portray a “tough guy,” loner image when in fact Ellison “desperately 26 needs, desires, craves love, support, security, attention.” (Id.) Dr. Lanyon believed that 27 Ellison exaggerated his symptoms to get attention so that people would feel sorry for him 28 and try to help him. (Id. at 184.)

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1 Dr. Lanyon summarized Ellison’s “psychological reality” by explaining that “his 2 life as a child was so painful that he learned to be exclusively preoccupied” with his pain 3 and ways of deadening the pain. (Id. at 154.) Dr. Lanyon described Ellison’s substance 4 abuse as something to deaden the pain. (Id.) Dr. Lanyon testified that Ellison “[n]ever had 5 the opportunity to look forward to reflect upon what the future might be, and that’s how 6 one often develops judgment.” (Id.) 7 Dr. Lanyon did not diagnose Ellison with a “formal psychiatric disorder except that 8 he would be chronically depressed and he’s made suicide attempts.” (Id. at 160.) Dr. 9 Lanyon related the depression to “situational factors, rather than being a normal psychiatric 10 illness.” (Id.) Dr. Lanyon “did not see anything to indicate that [Ellison] had . . . a character 11 disorder.” (Id.) Instead, Dr. Lanyon found that Ellison was a person “whose experience 12 as a child was so painful that he has never recovered” and has no idea what a “satisfactory” 13 life is “let alone how to get there.” (Id. at 161.) 14 On cross-examination, Dr. Lanyon elaborated that Ellison, in taking the MMPI-2, 15 “clearly and deliberately set about to exaggerate the extent of his psychopathology.” (Id. 16 at 173.) Dr. Lanyon opined that Ellison also attempted to “simulate severe antisocial 17 personality disorder.” (Id. at 174.) Dr. Lanyon repeated that he found no evidence of 18 schizophrenia, delusions, hallucinations, or organic brain damage. (Id. at 176.) 19 The following day, the trial court instructed the jury and counsel made their closing 20 arguments. (RT 2/13/04.) The case went to the jury at 11:55 a.m. (Id. at 94.) At 4:37 21 p.m., the jury announced that it would be unable to reach a verdict that day. (Id.) The jury 22 returned to deliberate four days later, at 9:00 a.m. on February 17, 2004. It reached its 23 verdict at 3:37 p.m. (RT 2/17/04 at 1.) 24 The jury’s findings with respect to the mitigating circumstances were as follows: 25 (1) two jurors found that Ellison had proved the “absence of love and guidance” 26 circumstance; (2) seven jurors found that Ellison had proved drug addiction; (3) no jurors 27 found that Ellison had proved diminished capacity; (4) one juror found that Ellison had 28 proved absence of genuine violence in prior convictions; and (5) seven jurors found that

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1 Ellison had proved that Ellison’s family members care about him and do not want him to 2 die. (Id. at 2-4.) Nevertheless, the jury found that Ellison should be sentenced to death for 3 both murders. (Id. at 4.) 4 b. PCR Evidentiary Hearing 5 In his PCR petition, Ellison raised various claims of ineffective assistance at 6 sentencing. The PCR court summarily denied most of those claims but concluded that 7 Ellison was “entitled to an evidentiary hearing . . . on two issues: (1) whether [Ellison] was 8 denied the effective assistance of counsel at Sentencing in the failure of trial counsel to 9 gather and present mitigating evidence; and (2) whether [Ellison] was denied the effective 10 assistance of counsel at Sentencing in the failure of trial counsel to discover, investigate 11 and present evidence of Fetal Alcohol Syndrome.” (PCR Ruling 7/16/12 at 6.) 12 The hearing was held over four days in August 2014. (PCR Ruling 7/13/15 at 1.) 13 Ellison called four experts, including three members of “FASDExperts,” a team formed in 14 2007 to perform multidisciplinary assessments in “high-stakes criminal cases.” (RT 8/8/14 15 at 24, 226.) Ellison also called three witnesses who had testified at his sentencing (his 16 brother Ken, Reardon, and Orr); his trial judge, Judge Moon; his first attorney, Kenneth 17 Everett; his lead trial counsel, Iannone; his second-chair trial counsel, Engan; and his 18 mitigation specialists, Mary Durand and Dana Gavin. The State called Detective Auld. 19 Ellison’s first witness was Dr. Paul Connor, a clinical neuropsychologist. (RT 20 8/8/14 at 14.) Dr. Connor testified that by 1996, fetal alcohol syndrome (“FAS”) and fetal 21 alcohol effects were diagnosable disorders. (Id. at 27.) Dr. Connor further testified that in 22 2004, the CDC established guidelines for diagnosing FAS. (Id. at 28–29.) Dr. Connor 23 testified that the newly-published DSM-541 included a diagnosis of “neurodevelopmental 24 disorder associated with prenatal alcohol exposure.” (Id. at 32.) Dr. Connor testified that 25 before the DSM-V, the only comparable diagnosis was “cognitive disorder not otherwise 26 specified,” or “NOS.” (Id. at 33-34.) Dr. Connor testified that alcohol is a teratogen—a 27 substance that damages or kills developing cells. (Id. at 35.) Dr. Connor explained that 28 41 Diagnostic and Statistical Manual of the American Psychiatric Association.

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1 prenatal exposure to alcohol causes “functional deficits” and that alcohol consumption 2 during weeks four and five of the embryo’s life can cause limb problems, including club 3 feet. (Id. at 36, 42.) Dr. Connor testified that disabilities associated with FASD include 4 mental health problems, disrupted school experiences, and trouble with the law. (Id. at 48.) 5 Dr. Connor performed a neuropsychological examination of Ellison, testing a 6 number of domains, including IQ, achievement, and executive functioning. Dr. Connor 7 measured Ellison’s full-scale IQ at 89, which is in the average range. (Id. at 69.) Dr. 8 Connor found “considerable impairments” in Ellison’s adaptive functioning 9 (communication, daily living skills, and socialization). (Id. at 81.) Dr. Connor further 10 testified that Ellison’s academic skills were lower than his IQ and that Ellison’s adaptive 11 functioning skills were much lower, which Dr. Connor testified is “exactly what he would 12 expect to see in individuals with FASD.” (Id. at 80.) Dr. Connor also testified that Ellison 13 demonstrated deficits in reading comprehension, spatial construction, visual spatial 14 learning in memory, sustained attention, executive functions such as planning and problem 15 solving, and the three adaptive skills. (Id. at 83.) Dr. Connor stated that the existence of 16 such deficits, despite an IQ of 89, is seen “extremely commonly” in “FASD people.” (Id.) 17 Dr. Connor “ultimately diagnosed Mr. Ellison with cognitive disorder, NOS” and found 18 that his “pattern of neuropsychological functioning was consistent with the diagnostic 19 guidelines for fetal alcohol spectrum disorders.” (Id. at 84.) 20 Ellison’s next witness was Dr. Richard Adler, a forensic and clinical psychiatrist 21 who examined Ellison in 2010. (Id. at 109.) Dr. Adler performed a psychiatric interview, 22 did a physical examination, and reviewed magnetic resonance imagining (“MRI”) and 23 diffuser tensor imaging (“DTI”) studies. (Id. at 112.) Dr. Adler testified that the use of 24 FASD in the courtroom “goes back certainly to 1990.” (Id. at 115.) Dr. Adler also 25 explained that his report was written in 2011, before the publication of the DSM-5 in 2013, 26 which first included a diagnosis of “neurodevelopmental disorder associated with prenatal 27 alcohol exposure.” (Id. at 119.) 28 In making his diagnosis, Dr. Adler used the criteria established by the Institute of

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1 Medicine (“IOM”). (Id. at 119-22.) Dr. Adler explained that first IOM criterion for the 2 condition of partial fetal alcohol syndrome disorder (“pFASD”) is “confirmed maternal 3 alcohol exposure.” (Id. at 123.) Dr. Adler testified that in the report of Dr. Novick Brown, 4 another defense expert, Ellison’s mother indicated that “she attended a Halloween party, 5 and this was after she had missed her first period, but before she knew that she was pregnant 6 and that she drank to the point of clear intoxication.” (Id. at 123-24.) Dr. Adler also noted 7 that, in the same report. Mrs. Ellison “recollect[ed] drinking on two additional occasions 8 while pregnant.” (Id. at 124.) Dr. Adler testified that this is a sufficient amount of alcohol 9 consumption to satisfy the first IOM criterion. (Id.) 10 Dr. Adler explained that the next IOM criterion is facial anomalies. (Id. at 125.) 11 Dr. Adler used a computer program, which has been available since 2001, to measure 12 Ellison’s facial features. (Id. at 131.) The resulting code, according to Dr. Adler, was 13 “considered to be an indicia of the FAS facial abnormalities.” (Id. at 134.) 14 Dr. Adler explained that the next IOM criterion was cognitive abnormalities. (Id. 15 at 135.) Dr. Adler testified that this criterion was satisfied by Dr. Connor’s findings. (Id. 16 at 140.) 17 Dr. Adler then testified about his review of Ellison’s imaging studies. (Id. at 142.) 18 According to Dr. Adler, the MRI showed that Ellison’s corpus callosum was abnormal. 19 (Id. at 144-45.) Dr. Adler explained that the abnormalities were related to the frontal lobe 20 and “very pertinent” to executive functions. (Id. at 150.) Dr. Adler also testified that the 21 DTI showed a decrease in white matter fibers. (Id. at 151-54.) According to Dr. Adler, 22 the abnormalities were “located in those particular areas that are emblematic of FASD.” 23 (Id. at 161.) Dr. Adler also testified that DTI was available in the 1990s and MRI was 24 available before that. (Id. at 157-58.) Dr. Adler stated that the abnormalities in Ellison’s 25 brain were not consistent with binge drinking or traumatic brain injury. (Id. at 161-63.) 26 Dr. Adler testified that his diagnosis at the time of his examination and report in 27 2010-11 was cognitive disorder NOS under the DSM-IV-TR, the predecessor of the DSM- 28 V. (Id. at 165.) Dr. Adler also diagnosed Ellison with pFASD under the 1996 diagnostic

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1 criteria of the IOM. (Id. at 166.)42 Under the DSM-5, his diagnosis was 2 “neurodevelopmental disorder associated with prenatal alcohol exposure.” (Id.) 3 On cross-examination, Dr. Adler acknowledged that the attending neuroradiologist 4 for Ellison’s MRI, Dr. John Karis, found it “unremarkable.” (Id. at 186.) Dr. Adler also 5 testified that he was skeptical that Ellison or any criminal defendant would malinger in an 6 attempt to be diagnosed with antisocial personality disorder, as Dr. Lanyon found in 7 reviewing Ellison’s MMPI-2. (Id. at 208.) Dr. Adler also testified that people with FASD 8 are highly suggestible. (Id. at 207.) 9 Ellison’s next witness was Dr. Natalie Brown, a psychologist who worked with Drs. 10 Connor and Adler on the FASDExperts team. Dr. Brown focused on mental health and 11 behavioral issues. She first testified about the cognitive deficits caused by FASD that 12 create “problematic behaviors.” (RT 8/19/14 at 8.) According to Dr. Brown, these include 13 memory and attention deficits, boundary problems that lead to assaultive behavior, 14 difficulty remembering what one has learned in the past, “chattiness” or poor judgment in 15 communication, susceptibility to peer pressure, and suggestibility. (Id. at 10-11.) Dr. 16 Brown testified that it was Ellison’s suggestibility that caused him to continue talking with 17 the detectives. (Id. at 15.) She also stated that Ellison had a “lifelong tendency to follow 18 the lead of others.” (Id. at 24.) Dr. Brown agreed that from 1998 onward, it was well- 19 recognized in her field that FASD caused social and emotional development delays. (Id. 20 at 27.) Dr. Brown testified that Ellison’s mother told her she drank once a month while 21 she was pregnant with Ellison and recalled one episode of binge drinking while she was 22 six weeks pregnant. (Id. at 29-30.) Dr. Brown explained that mothers typically under- 23 24 42 Dr. Adler explained that the word “partial” in pFASD just means that the “full facial 25 features are not present.” (RT 8/8/14 at 166.) According to Dr. Adler, pFASD is a “worse” diagnosis than FASD because the absence of distinct facial features means “the rate at 26 which their difficulties are discerned and picked up is less” and they are less likely to 27 receive the “interventions that are well-known to ameliorate the intensity and the negative effects” of the condition. (Id. at 166-67.) 28

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1 report their drinking, but that even one incident of binge drinking can “damage the 2 developing brain of the fetus.” (Id. at 30.) Dr. Brown further testified that Ellison’s mother 3 was drinking during the first six weeks of pregnancy, “which is the most vulnerable time 4 for an embryo developing.” (Id. at 32.) Dr. Brown also noted that Mrs. Ellison did not 5 want to be pregnant and rejected Ellison. (Id. at 31.) According to Dr. Brown, this “harsh 6 upbringing” was also “part of the reason for the offense behavior.” (Id.) 7 Dr. Brown next testified about the behaviors Ellison exhibited throughout his 8 childhood that were consistent with a diagnosis of FASD: poor and inconsistent academic 9 performance, hyperactivity, distractibility, impulsivity, and behavioral problems such as 10 talking back to teachers, fighting, and truancy. (Id. at 37-54.) Dr. Brown testified that Dr. 11 Lanyon did not take “seriously any of the cognitive deficits that he noted,” instead focusing 12 on Ellison’s birth defect and home environment. (Id. at 65–66.) 13 Dr. Brown then testified about Ellison’s “childhood adversities”: surgeries for his 14 club feet, emotional neglect and rejection by his parents, physical abuse by his father and 15 older brother, sexual abuse by his oldest brother, early exposure to substance abuse and 16 criminal behavior, school instability caused by the family’s frequent moves, and constant 17 rejection by his peers. (Id. at 70-73.) Dr. Brown opined that there were no meaningful 18 interventions to address these factors and Ellison “fell through the cracks essentially.” (Id. 19 at 77-79.) 20 Next, Dr. Brown listed Ellison’s “secondary disabilities,” or adverse consequences 21 resulting from his brain damage. (Id. at 82–84.) According to Dr. Brown, these consisted 22 of mental health problems including polysubstance abuse and undiagnosed ADHD; 23 academic disruptions, including failing grades and eventually dropping out of school; 24 trouble with the law starting at age 14; dependent living, including living with his parents 25 as an adult; employment problems, such as being unable to stay at a job for more than a 26 few months; and making inappropriate sexual comments. (Id.) 27 Dr. Brown also testified that Ellison scored in the top one percent on a test 28 measuring suggestibility. (Id. at 103.) Dr. Brown stated that Ellison “acquiesced” to all of

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1 the detective’s leading questions when he was interrogated. (Id. at 103-04.) Dr. Brown 2 noted that others, including Ellison’s brother Ken and Orr, described Ellison as a timid 3 follower and that a psychologist at one of Ellison’s juvenile facilities noted that he tended 4 to set himself up as a scapegoat in his interactions with peers. (Id. at 104.) 5 Dr. Brown testified that Ellison’s past crimes displayed executive dysfunction and 6 suggestibility, including the armed robbery where he gave the store clerk his address. (Id. 7 at 113–14.) Dr. Brown also testified that his “offense conduct” in burglarizing and 8 murdering the Bouchers showed “flawed planning, very high risk with an unknown benefit 9 and an inability to foresee consequences with virtually every step he took and importantly, 10 inability to extricate himself from the situation.” (Id. at 120.) Dr. Brown opined that FASD 11 “certainly did influence the offense conduct.” (Id.) Dr. Brown also testified that Finch had 12 no executive function deficits and therefore was more likely to have been the leader despite 13 Ellison’s higher IQ. (Id. at 121-24.) 14 Finally, Dr. Brown discussed “red flags” that should have put sentencing counsel 15 on notice that FASD was a potential issue. (Id. at 127-35.) Dr. Brown testified that the 16 record available to Dr. Lanyon indicated that Ellison’s mother drank; that that were red 17 flags for “educational impairment” available in the records at the time, including Ellison’s 18 placement in special education classes; that there were red flags for ADHD and 19 impulsivity; and that “most counsel” know that splits in IQ scores between verbal and 20 nonverbal skills “might mean brain damage.” (Id.) Dr. Brown concluded: “[T]here were 21 numerous red flags . . . [that] should have alerted trial counsel, as well as Dr, Lanyon, that 22 prenatal alcohol exposure was at least a possibility. . . . [T]here were multiple cognitive 23 deficits in several areas that indicated a high likelihood of brain damage . . . .” (Id. at 138- 24 39.) 25 The next witness was Dr. Joseph Wu, a neuropsychiatrist who reviewed Ellison’s 26 MRI and DTI studies. (Id. at 229.) Dr. Wu testified that DTI studies began to be used in 27 the mid-1990s with studies being published in the late 1990s and early 2000s about DTI 28 findings in conditions such as alcoholism and brain injuries. (Id. at 236.) Dr. Wu testified

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1 that DTI is capable of detecting the compromised integrity of the axons in the cerebral 2 tracts of the corpus callosum associated with fetal alcohol syndrome. (Id. at 237.) 3 According to Dr. Wu, the reason Dr. Karis read Ellison’s MRI as normal is that Dr. Karis 4 did not look closely at the DTI but instead reviewed the MRI for “acute issues.” (RT 5 8/20/14 at 10.) Dr. Wu testified that the abnormalities in Ellison’s corpus callosum could 6 not be accounted for by head trauma or drug use. (Id. at 20, 31.) Dr. Wu opined that 7 Ellison had “significant pathology in the integrity of his axons in cerballar [sic] tracts in a 8 manner that would be highly consistent with . . . fetal alcohol spectrum disorder” and 9 inconsistent with traumatic brain injury. (Id. at 30-31.) Dr. Wu testified that people with 10 FASD suffer from executive dysfunction, including “impaired social judgment and 11 impaired ability to regulate social behavior.” (Id. at 32.) He explained that under the DSM- 12 V, an anti-social personality disorder is precluded if the behavior is explained by a 13 neurocognitive disorder due to prenatal alcohol exposure. (Id. at 35.) On cross- 14 examination, Dr. Wu acknowledged that he was not using DTI technology in the years 15 2003-05. (Id. at 51.) 16 Ellison next called Judge Moon, who testified that he didn’t believe he needed to 17 recuse himself from Ellison’s trial despite findings made while presiding over Finch’s trial. 18 (Id. at 75, 77.) Judge Moon agreed that he would have considered brain damage and mental 19 impairment to be significant sentencing factors. (Id. at 76-77.) 20 Ellison next called Orr, his juvenile probation officer. (Id. at 83.) Orr testified, as 21 he did at Ellison’s sentencing, that Ellison was “a skinny little kid” who “looked like he 22 needed a friend.” (Id. at 84, 86.) Orr testified that Ellison “seemed to be a pretty nice little 23 man with a family that wasn’t worth a damn.” (Id. at 86.) Orr testified that he considered 24 placing Ellison with an aunt and uncle, “but the only thing they could actually tell me was 25 that mom had a drinking problem”—“supposedly drinking a 6 pack to a 12 pack per day.” 26 (Id. at 87.) Orr testified that Ellison “blossomed in structure” but “couldn’t sort out 27 between right and wrong.” (Id. at 88.) “If it was wrong, he’d do it anyway.” (Id.) Orr 28 described Ellison as a “follower” who got into trouble by choosing the wrong people

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1 follow. (Id. at 89.) Orr now ascribed Ellison’s misbehavior to “fetal alcoholism.” (Id.) 2 Orr characterized Ellison as “spacey,” “scattered,” unable to stay on topic, subject to mood 3 swings, and lacking self-esteem. (Id. at 92-94.) Orr testified that Ellison shoplifted but 4 gave away the items he stole. (Id. at 94-95.) Finally, Orr reiterated that the other children 5 ridiculed Ellison because of his club feet. (Id. at 96.) 6 The next witness was Ellison’s brother, Ken. (Id. at 114.) Ken testified that at the 7 time of Ellison’s sentencing he was confused, didn’t understand the lawyers’ questions, 8 and “really didn’t know why [Ken] was at that trial.” (Id. at 115.) Ken stated that because 9 he didn’t understand his role in the mitigation case, he was defensive when asked at 10 sentencing about his family’s dysfunction. (Id. at 117.) Ken further testified that Ellison’s 11 trial counsel did not ask him about his impressions of Ellison’s mental health. (Id. at 118.) 12 Ken testified that Ellison was a needy child who tried to act tough. (Id. at 126.) Ken stated 13 that Ellison’s trial counsel had not asked him about Ellison’s behavior, and he did not 14 mention it to them out of naivety, shock, and denial. (Id. at 129.) Ken also stated that he 15 was in shock when he testified at sentencing by seeing Ellison’s arrogance and lack of 16 remorse or understanding of the trouble he was in. (Id. at 131-32.) Finally, Ken testified 17 that his family members “100%” had “addictive-type personalities.” (Id. at 132-33.) 18 On cross-examination, Ken acknowledged that he had been reluctant to provide 19 information to trial counsel, which was not counsel’s fault. (Id. at 139.) Ken also stated 20 that he had spoken face-to-face with Ellison’s counsel and co-counsel at his apartment 21 before the sentencing hearing. (Id. at 141-42.) 22 Ellison’s next witness was Reardon, who testified that Ellison “seemed like a lost 23 soul and reminded me of my kid brother.” (Id. at 163.) Reardon further testified that his 24 own mother was a heavy drinker and smoker when she was pregnant with his little brother, 25 who weighed only 2.5 pounds at birth. (Id. at 163-64.) Reardon stated that his family 26 “babied” and “spoiled” his brother, showing a “level of concern” that Reardon did not see 27 from Ellison’s family. (Id. at 164-65.) Reardon testified that, at the time he was in a 28 relationship with Ellison, Ellison had no plans for the future and didn’t want any

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1 commitments. (Id. at 165-66.) Reardon also testified that Ellison once had to quit working 2 because he refused to wear a shirt to cover his tattoos. (Id. at 166.) Reardon also recounted 3 an episode in which Ellison acted belligerently when a clerk refused to sell him beer 4 because he didn’t have an ID. (Id. at 167.) According to Reardon, Ellison “would be 5 inappropriate like that at times. You never knew when it was going to happen.” (Id. at 6 173.) Reardon stated that when he became upset at Ellison’s refusal to follow social norms, 7 like leaving for weeks at a time without informing Reardon, Ellison would make no effort 8 to understand why Reardon was angry. (Id. at 168-69.) Reardon stated that he “knew 9 something was wrong with” Ellison. (Id. at 169.) 10 Reardon testified that trial counsel visited him about a year before trial and spoke 11 with him for a few minutes “right before” his testimony. (Id. at 170, 172.) Reardon stated 12 that counsel didn’t ask if he had observed “anything unusual in [Ellison’s] behavior.” (Id. 13 at 171.) Instead, Reardon contended, they asked about Reardon’s relationship with Ellison 14 and how well he knew Ellison. (Id.) 15 Ellison next called Dana Gavin, his mitigation specialist for the PCR proceedings. 16 (Id. at 190.) Gavin stated that she traveled to Indiana to interview Ellison’s mother. (Id.) 17 Gavin testified that FASD was an issue that had not been investigated previously so she 18 needed to speak with Ellison’s mother about whether she drank while she was pregnant. 19 (Id. at 191.) Gavin stated that Ellison’s mother agreed to testify on his behalf but passed 20 away before she could do so. (Id. at 193.) Gavin further stated that Ellison’s oldest brother 21 (Mike) and sister would not testify. (Id. at 193-94.) Gavin described the Ellison family as 22 “[v]ery self-absorbed, very dysfunctional, self-centered.” (Id. at 194.) 23 The next witness was Engan, who served as second-chair counsel during Ellison’s 24 trial and sentencing. (Id. at 200.) Engan testified that he had the requisite experience for 25 that position. (Id. at 201.) However, Engan could not recall whether he had completed “the 26 right amount of capital defense continuing legal education” required under the rules. (Id.) 27 Ellison’s trial was Engan’s first capital case. (Id. at 221.) Engan testified that he believed 28 Dr. Lanyon’s testimony was “critical” and that eliciting his testimony in person would

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1 “have a significantly better impact on a jury.” (Id. at 206.) Engan could not recall if 2 testimony by video was a viable option at the time of Ellison’s sentencing. (Id. at 207.) 3 Engan testified that lead counsel declined to subpoena Dr. Lanyon because he didn’t think 4 it appropriate to subpoena a fellow professional, a decision with which Engan disagreed. 5 (Id. at 207-08.) Engan testified that he was concerned about Dr. Lanyon’s finding that 6 Ellison “clearly and deliberately set about to exaggerate the extent of his 7 psychopathology.” (Id. at 210.) Engan explained that if he were presented with this finding 8 as lead counsel, he would have discussed the matter with the expert and, if he didn’t get a 9 satisfactory explanation, would “probably consult with a second expert.” (Id. at 212-13.) 10 Engan further testified that if he had been “responsible for the case,” he would have had 11 Dr. Tucker meet personally with Ellison as a way of gaining more information than a 12 review of the records would provide. (Id. at 216.) Engan further opined that, “although 13 hazardous, it would probably be a good idea if Mr. Ellison did testify.” (Id. at 220.) Engan 14 clarified that Ellison did not “demand to testify” after being made aware of that right, 15 although he had the “absolute right” to testify if he chose to do so. (Id. at 222.) Engan 16 stated that he and lead counsel “probably” had “in-depth discussions” with Ellison about 17 whether to testify. (Id.) Engan testified that lead counsel may have persuaded Ellison not 18 to testify, which to Engan suggested that Ellison was a follower. (Id. at 233, 237.) 19 Ellison next called Iannone, his lead counsel at trial and sentencing. Iannone 20 testified that, before his appointment in Ellison’s case, he had tried nine felony jury trials 21 and served as second-chair counsel in one capital case—Ellison’s case was his first capital 22 case as lead counsel. (Id. at 243-44.) Iannone recalled taking seminars in jury sentencing 23 following the decision in Ring II. (Id. at 246.) Iannone testified that Mary Durand was the 24 first mitigation specialist in the case but, after she became ill in 2000 or 2001, she was 25 replaced by Mark Goff of Public Service Investigations. (Id. at 247.) Iannone was 26 “impressed” by both Durand and Goff and believed that Durand had a good relationship 27 with Ellison. (Id. at 248.) Iannone testified that he did not call Ellison to testify because 28 he worried Ellison might be a “volunteer” and because Ellison would say something that

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1 would “irretrievably alienate the jury.” (RT 8/21/04 at 112.) In Iannone’s view, Ellison 2 was “competent” but “[h]eavily damaged.” (Id. at 113.) Iannone testified that although he 3 viewed Ellison as a “follower who desperately wanted to be a leader,” he did not pursue 4 the “follower/leader” issue because it was a “veritable minefield” given that Ellison was 5 the only one with a connection to Kingman and the one who provided the transportation 6 and the latex gloves worn during the crimes. (Id. at 128, 131-32.) Iannone testified that 7 he believed Ellison was the leader and Finch the follower. (Id. at 164.) 8 As for the possibility of introducing FASD evidence, Iannone testified that he did 9 not “recall giving it any thought at all.” (Id. at 133-34.) Iannone explained that in 10 examining Dr. Lanyon at trial, he “drew the sting” out of the negative information in Dr. 11 Lanyon’s report by questioning him about the malingering issue, and eliciting Dr. Lanyon’s 12 explanation, before the prosecutor could raise it on cross-examination. (Id. at 147-50.) 13 Iannone agreed that he had spoken with Dr. Lanyon about his findings and that his approach 14 in examining Dr. Lanyon was a matter of “trial strategy and tactics.” (Id. at 150.) 15 Turning to Durand, Iannone testified that he and Durand had a lot of conversations 16 while she was on the case, but she had to withdraw due to health issues. (Id. at 166.) 17 Iannone testified that he couldn’t remember if he considered calling Durand to testify at 18 sentencing. (Id. at 137.) Iannone testified that Durand never told him that Ellison could 19 be suffering from pFASD or FAS and that he “didn’t recall anyone bringing that up.” (Id. 20 at 168.) Iannone testified that he relied on Dr. Lanyon’s finding that Ellison did not suffer 21 from brain damage. (Id. at 169-70.) 22 Iannone could not recall why Dr. Lanyon testified telephonically. (Id. at 175.) He 23 testified that he “really wasn’t happy doing it by telephone” but, as he recalled, “it was 24 either this or nothing, so we had to bite the bullet and do it” because the “information [was] 25 of critical importance.” (Id.) Iannone also testified that in addition to Drs. Lanyon and 26 Tucker, Dr. Gwenn Levitt, a Phoenix psychiatrist, evaluated Ellison. (Id. at 178.) Iannone 27 then testified: “May I just—may I just tell the Court that after evaluating Mr. Ellison, Gwen 28 told me that I didn’t want to call her.” (Id.)

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1 Finally, in response to questions by the court, Iannone testified that the new 2 mitigation firm came onto the case because of Durand’s health problems and that his 3 “perception” was that doing the mitigation work was “damaging Mary’s health, that she 4 needed to get her strength up and recover and that she was no longer perceiving herself as 5 being an active member of the Ellison defense team.” (Id. at 179.) Iannone also testified 6 that there was no information Durand had gathered that he was not “able to present to the 7 sentencing jury.” (Id.) 8 The next witness was Kenneth Everett, Ellison’s first defense attorney and the 9 Mohave County Public Defender from 1997 to July 2000. (Id. at 6.) Everett was appointed 10 during the PCR proceedings to serve as a “Strickland expert.” (Id. at 14.) Everett testified 11 that after his appointment, he contacted Durand because he knew that Ellison’s background 12 contained a number of mitigation issues. (Id. at 19.) He testified that the experts on whom 13 Iannone relied were “woefully inadequate.” (Id. at 35.) According to Everett, Dr. 14 Lanyon’s report should have led counsel to “other important mitigation.” (Id. at 36.) 15 Everett testified that there is an “inherent tension in a system where the judge is responsible 16 for appointing experts” and overseeing the budget because an attorney may hesitate to ask 17 for the appointment of an expert and risking the judge’s “ill will.” (Id. at 38-39.) Everett 18 testified that the failure to call a mitigation witness to testify in person fell below “the 19 standard of care” and therefore it was imperative to subpoena Dr. Lanyon and if necessary 20 to ask for a continuance. (Id. at 40–42.) Everett opined that it is “absolutely essential” to 21 put a mitigation specialist on the stand during the penalty phase of a capital trial and that 22 the applicable ABA Guidelines mandated an investigation into mitigating circumstances 23 from the client’s birth to the time of sentencing. (Id. at 44.) Everett further testified that 24 several red flags were raised in Dr. Lanyon’s report that called out for more thorough 25 investigations by the mitigation specialist and additional experts, including “several 26 significant head injuries, a coma for 36 hours, sexual abuse by family members, substance 27 abuse of every kind, shape, and form . . . , addiction, two club feet, childhood issues.” (Id. 28 at 47.) Everett also noted that Dr. Lanyon’s report contained the findings of a mitigation

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1 specialist named Scharlette Holman who outlined similar “significant factors” that 2 influenced Ellison’s “development and functioning.” (Id. at 48.) Everett opined that the 3 testimony of a mitigation specialist is crucial to contextualizing and explaining how 4 mitigating circumstances affected a defendant. (Id. at 50.) Everett also testified that 5 constitutionally effective assistance requires that an expert meet personally with the client. 6 (Id. at 54.) 7 Next, Everett explained that the ABA Guidelines mandate a “team concept” in 8 representing a capital defendant and that the team approach “was totally lacking” in 9 Ellison’s case. (Id. at 56.) Everett testified that the lead attorney is responsible for asking 10 an expert whether further testing is necessary. (Id. at 55-56.) According to Everett, 11 Iannone was “completely ineffective” at sentencing in advancing the theory that Ellison 12 was the follower and Finch the leader. (Id. at 62.) Everett concluded by testifying that the 13 sentencing investigation and presentation in Ellison’s case was “one of the least 14 professional and weakest” he had ever seen. (Id. at 70.) 15 On cross-examination, Everett admitted he “did not consider fetal alcohol 16 syndrome” despite meeting with Ellison frequently over the 15 months he represented him 17 and “didn’t do anything to investigate the possibility of fetal alcohol syndrome.” (Id. at 18 80.) He also testified that Durand, one of the best and experienced mitigation specialists, 19 “did not suspect or investigate for partial fetal alcohol syndrome” despite meeting with 20 Ellison a number of times, investigating his life history and background, and speaking with 21 friends and relatives. (Id. at 83-84.) Everett also acknowledged that Durand never raised 22 the subject of pFSAD with him. (Id. at 84.) Everett further testified that he was aware of 23 Durand’s health issues but was “not sure of the timing . . . specifically in regard to this 24 case.” (Id. at 100.) Nevertheless, Everett testified that it was “certainly [his] belief that 25 she could have, would have and must have testified in this case and was ready, willing, and 26 able to do so.” (Id.) 27 Ellison’s final witness at the PCR evidentiary hearing was Durand. (Id. at 183.) 28 Durand testified that she interviewed Ellison on “many occasions” and “spent a lot of time

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1 with him . . . face-to-face” and also interviewed “a lot” of Ellison’s family members, 2 including Ellison’s mother “several times.” (Id. at 216.) Durand testified that Ellison’s 3 mother was drinking during one of their interviews, that Ellison’s mother admitted she 4 believed she was drunk on the night Ellison was conceived, and that Ellison’s mother also 5 made it plain that she never loved Ellison and was a cold and neglectful mother. (Id. at 6 192-96.) 7 Duran testified that she also reviewed Ellison’s school records, psychological 8 reports, prison and jail records, and the police reports. (Id. at 217.) Durand stated that she 9 “did not even consider the possibility of fetal alcohol effects anytime in [her] involvement 10 in [the] case” and “never had a discussion with any of the lawyers . . . about fetal alcohol 11 syndrome.” (Id. at 217-18.) Durand opined, however, that if “the proper mitigation had 12 been done . . . one of the experts would have seen it.” (Id. at 199.) Duran explained that 13 she “missed the fetal alcohol because [she] didn’t see it in his face” and was “consumed 14 with these co-occurring issues” such as the sexual abuse Ellison suffered. (Id. at 198.) 15 Durand also opined that regular team meetings, sharing of information, and 16 brainstorming are critical in capital sentencing but did not happen in Ellison’s case. (Id. at 17 196.) Durand testified that she recommended Dr. Lanyon to Iannone “to do a neuropsych 18 evaluation of Mr. Ellison” but opined that Dr. Lanyon should have performed additional 19 tests after finding no organic brain damage. (Id. at 199, 201.) Durand also testified that 20 Dr. Tucker should have met personally with Ellison and that a PET scan should have been 21 performed. (Id. at 197.) Durand also stated that she would have visited the prison to speak 22 with an inmate named “Booger Red” who extorted inmates, including Ellison, by providing 23 protection in exchange for sex. (Id. at 197-98.) Durand stated that she would have called 24 six additional expert witnesses at Ellison’s sentencing, including a child development 25 specialist from Washington, D.C., and a prosecutor from the Maricopa County Sex Crimes 26 Unit. (Id. at 208-09.) Durand also opined that the testimony of a mitigation specialist is 27 necessary to “put it all together” in a “coherent form,” “contextualize” the mitigating 28 circumstances, and “talk about what the effects of what happened to him are and how that

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1 affected his behavior for his entire life.” (Id. at 204-05.) Durand acknowledged, however, 2 that due to her health problems she had stopped actively working on Ellison’s case the year 3 before the sentencing proceedings. (Id. at 210.) 4 The State presented the testimony of Detective Auld to counter Ellison’s contention 5 that he suffered from executive dysfunction that was manifested in the circumstances of 6 the crime. (Id. at 223-68.) 7 2. Analysis 8 As noted, Ellison’s habeas petition raises ten subclaims of ineffective assistance of 9 counsel at sentencing. (Doc. 21 at 216-75.) Subclaims 1 and 2 were the subject of the 10 evidentiary hearing outlined above. Following the evidentiary hearing, the PCR court 11 issued a written order denying relief as to those subclaims. (PCR Ruling, 8/13/15.) The 12 PCR court also issued a subsequent written order denying Ellison’s motion for 13 reconsideration as to those subclaims. (PCR Ruling, 11/16/15.) As for subclaims 3-8, they 14 were summarily denied by the PCR court in its initial ruling (PCR Ruling, 7/16/12.) 15 Subclaims 9 and 10 were not raised in state court. 16 a. Subclaim 1: Mitigation Evidence 17 The PCR court addressed, and rejected, the following allegations of ineffective 18 assistance related to mitigation evidence: (1) failing to insist that Dr. Lanyon testify in 19 person rather than by phone; (2) failing “to ask another neuropsychologist to re-test 20 Ellison”; (3) failing to call Durand as a mitigation witness; and (4) failing to adequately 21 prepare mitigation witnesses Ken Ellison, Karl Orr, and Russell Reardon. (PCR Ruling, 22 7/13/15 at 5-13.) The court “reject[ed] Ellison’s claims of alleged failure to gather and 23 present mitigating evidence, finding that they are not supported by the record of the 24 sentencing trial or evidentiary hearing.” (Id. at 7.) 25 With respect to the presentation of Dr. Lanyon’s telephonic testimony, the PCR 26 court found: 27 There is no claim that his testimony was deficient or inaccurate. Rather, Ellison claims Dr. Lanyon’s testimony would have been more effective if it 28 had been delivered in person, rather than telephonically.

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1 The record clearly reflects that Judge Moon instructed the jurors that the 2 reason Dr. Lanyon would testify telephonically was due to Lanyon’s health problems. The record does not show if or when Dr. Lanyon might have been 3 available to testify in person, but Iannone testified at the evidentiary hearing that the only way the defense could present Dr. Lanyon’s testimony was via 4 telephone. The decision whether to call a witness telephonically, or to move 5 to postpone the trial is a matter of trial strategy. This question is one of weighing the efficacy of a telephonic testimony versus the antagonism of the 6 jury created by a postponement of the trial. Without knowing when Dr. 7 Lanyon might be available in person, this court will not second-guess defense counsel’s tactical [and] apparently sound decision to present Dr. Lanyon’s 8 testimony telephonically. 9 (Id. at 8, footnotes omitted.) 10 The PCR court next discussed counsel’s failure to consult an additional 11 neuropsychologist. (Id. at 9-10.) The court first noted that counsel retained Dr. Lanyon 12 after Ellison was evaluated by psychiatrist Dr. Gwen Levitt, who indicated that her 13 testimony “would not be helpful to the defense.” (Id. at 9.) Dr. Lanyon, whom the PCR 14 court referred to as a “neuro-psychologist,” concluded that Ellison “suffered from no 15 organic brain damage and that he was malingering as to symptoms of mental illness.” (Id.) 16 The court continued: 17 The record reflects that Ellison’s attorneys consulted numerous expert 18 witnesses in their investigation of possible mitigating circumstances. In 19 addition to doctors Levitt and Lanyon, they also consulted with doctors Grogan, Aitken [sic], and Tucker.[43] Iannone testified at the evidentiary 20 hearing that he did not see any need for additional experts, and if he had, he would have requested their appointment by the court. Iannone testified that 21 he specifically directed Dr. Douglas Tucker to not perform any interview or 22 testing of Ellison personally. Iannone wanted Dr. Tucker to tell the jury about the debilitating effects of drug addiction and the effects on Ellison’s 23 life. He was concerned that an interview or testing would reveal negative 24 things about Ellison (possibly anti-social personality disorder), and mindful that Dr. Lanyon’s MMPI test results were invalid—as deliberately 25 manipulated by Ellison. 26 The court finds a clear strategic decision by counsel to avoid exposing 27 28 43 Dr. Thomas Grogan was an orthopedist the defense consulted about Ellison’s club feet. James Aiken, an expert on prisons and correctional security, is not a doctor.

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1 Ellison to additional psychological interviews or testing that might reveal 2 negative information about Ellison. Dr. Levitt warned Iannone that he should not call her as a witness. Iannone testified that there are some things counsel 3 do not want to know. He intentionally avoided presenting evidence that Ellison acted under duress (by Finch) because of certain contra-indications, 4 which demonstrated that Ellison was the likely ringleader, not Finch. 5 Iannone believed that Ellison was the person who selected the victims in this case. Under these circumstances, counsel’s strategic decision to avoid 6 further evaluations of Ellison appeared sound. 7 (Id. at 9-10, footnote omitted.) 8 Next, the PCR court found that “counsel’s failure to call Mary Durand as a witness 9 was not deficient performance.” (Id. at 10.) The court explained: 10 [T]he substance of Mary Durand’s knowledge of Ellison’s childhood and 11 social history were presented in substance to the jury through the testimony 12 of Dr. Richard Lanyon and Dr. Tucker. Iannone testified at the evidentiary hearing that he did not believe there was further information, not already 13 provided to the jury, to which Mary Durand might have testified. The choice 14 of which witness to use to present important mitigating testimony is a matter of trial strategy. 15 (Id.) 16 Finally, the court rejected Ellison’s claim that defense counsel inadequately 17 prepared witnesses Ken Ellison, Orr, and Reardon. (Id. at 11-13.) The court noted that 18 counsel met personally with the three witnesses and elicited relevant mitigating testimony 19 about family dysfunction, lack of love and guidance, Ellison’s physical disability, his 20 mother’s coldness and antagonism, and his substance abuse. (Id.) 21 In challenging the PCR court’s ruling on these points, Ellison contends that the PCR 22 court made several unreasonable factual determinations and unreasonably applied 23 Strickland. (Doc. 21 at 227-31.) More specifically, Ellison first notes that the PCR court 24 erroneously referred to Dr. Lanyon as a “neuropsychologist.” (Id. at 227.) In fact, Dr. 25 Lanyon was a psychologist who performed a neuropsychological examination of Ellison. 26 Ellison argues that “the court’s assumption that Iannone in fact consulted an expert trained 27 in neuropsychology was an unreasonable determination of fact.” (Id. at 228.) 28 This argument is unavailing. Although the PCR court got Dr. Lanyon’s title wrong,

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1 Ellison offers no support for the proposition that Lanyon was not trained in 2 neuropsychology, nor does he argue that Lanyon was unqualified to perform a 3 neuropsychological exam. Indeed, the record reflects that Durand recommended Dr. 4 Lanyon to defense counsel to perform a “neuropsych evaluation.” (RT 8/21/04 at 199.) 5 Next, Ellison argues that the PCR court made “unreasonable determinations of fact 6 and unreasonable applications of Strickland” when it rejected his allegations of 7 ineffectiveness related to trial counsel’s reliance on Dr. Lanyon. (Doc. 21 at 228-29.) 8 Ellison seems to contend this ineffectiveness took two discrete, if related, forms: (1) 9 “fail[ing] to investigate to determine if Dr. Lanyon’s conclusions were valid”; and (2) 10 failing to “hav[e] Ellison tested or evaluated by another psychologist or neuropsychologist 11 because if the results were negative, trial counsel could then put them aside and go forward 12 with Dr. Lanyon.” (Id.) Ellison also faults the PCR court for characterizing the latter as 13 an unreviewable strategic choice and for describing James Aiken as a “doctor” (when, as 14 discussed elsewhere, Aiken is not a doctor). (Id.) 15 Ellison is not entitled to habeas relief on this basis. The starting point for the 16 analysis is the principle that “[a]ttorneys are entitled to rely on the opinions of properly 17 selected, adequately informed and well-qualified experts.” Crittenden v. Ayers, 624 F.3d 18 943, 966 (9th Cir. 2010). See also Sims v. Brown, 425 F.3d 560, 585-86 (9th Cir. 2005) 19 (“Attorneys are entitled to rely on the opinions of mental health experts, and to impose a 20 duty on them to investigate independently of a request for information from an expert 21 would defeat the whole aim of having experts participate in the investigation.”) (citation 22 omitted). Indeed, “[i]f an attorney has the burden of reviewing the trustworthiness of a 23 qualified expert’s conclusion before the attorney is entitled to make decisions based on that 24 conclusion, the role of the expert becomes superfluous.” Hendricks v. Calderon, 70 F.3d 25 1032, 1039 (9th Cir. 1995). See also Morris v. Carpenter, 802 F.3d 825, 841 (6th Cir. 26 2015) (“Attorneys are entitled to rely on the opinions and conclusions of mental health 27 experts.”); Nelson v. Davis, 952 F.3d 651, 663–64 (5th Cir. 2020) (“We have consistently 28 found that death penalty counsel is not ineffective if they rely on a medical expert’s

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1 assessment of the defendant’s mental functioning to inform their punishment phase strategy 2 instead of pushing ahead with their own investigation or hiring new experts who may have 3 reached a different diagnosis.”) (cleaned up). Thus, to the extent Ellison faults trial counsel 4 for relying on the opinions of Dr. Lanyon (and not realizing, for example, that Dr. Lanyon 5 had overlooked the existence of FASD), this criticism is a non-starter. At a minimum, 6 there is no clearly established federal law supporting Ellison’s criticism on this point. See, 7 e.g., Earp v. Cullen, 623 F.3d 1065, 1077 (9th Cir. 2010) (“An expert’s failure to diagnose 8 a mental condition does not constitute ineffective assistance of counsel, and [a defendant] 9 has no constitutional guarantee of effective assistance of experts.”); Campbell v. Coyle, 10 260 F.3d 531, 555 (6th Cir. 2001) (“Even though Dr. Chiappone as a trained psychologist 11 failed to detect any evidence of PTSD, Campbell asks us to declare that his counsel’s 12 independent failure to make the same diagnosis is an objectively unreasonable mistake, 13 depriving him of his Sixth Amendment right to the effective assistance of counsel. There 14 is no evidence that Dr. Chiappone was incompetent, or that Campbell’s lawyers had any 15 reason to question Chiappone’s professional qualifications. We conclude, therefore, that 16 it was objectively reasonable for Campbell’s trial counsel to rely upon Dr. Chiappone’s 17 diagnosis and, further, trial counsel’s failure to independently diagnose PTSD was not 18 unreasonable.”) (citation omitted); Boggs v. Shinn, 2020 WL 1494491, *48 (D. Ariz. 2020) 19 (failure of petitioner’s experts to diagnose petitioner with fetal alcohol syndrome was not 20 ineffective assistance of counsel). 21 A corollary to the aforementioned principle is that an attorney has no obligation 22 under Strickland to seek out the opinion of another expert after obtaining the opinion of 23 the first qualified expert. As the Ninth Circuit has noted, “the Supreme Court’s precedent 24 does not support the theory that if counsel had ‘nothing to lose’ by pursuing a defense, then 25 counsel is deficient for failing to pursue it. . . . An argument that counsel could have relied 26 on any number of hypothetical experts whose insight might possibly have been useful is 27 speculative and insufficient to establish that counsel was deficient.” Atwood v. Ryan, 870 28 F.3d 1033, 1064 (9th Cir. 2017) (cleaned up). Thus, to the extent Ellison faults his trial

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1 counsel for not seeking out additional experts after receiving Dr. Lanyon’s opinions, that 2 criticism is again unavailing (and, at a minimum, the PCR court did not violate clearly 3 established federal law or make an unreasonable determination of the facts by concluding 4 otherwise).44 5 Next, Ellison challenges the PCR court’s rejection of his claim that trial counsel 6 performed ineffectively by failing to have Dr. Lanyon testify in person. (Doc. 21 at 229.) 7 According to Ellison, this determination was predicted on an unreasonable factual 8 determination—that Dr. Lanyon’s health problems prevented him from testifying in 9 person. (Id.) In an effort to show that this determination was unreasonable, Ellison points 10 to Engan’s representation during a December 2003 status conference that he expected Dr. 11 Lanyon to be “‘in the full swing of things” by January 2004 and expected Dr. Lanyon to 12 be able to testify on “any date from mid-January onward.” (RT 12/5/03 at 3.) Ellison also 13 argues that the expressions of frustration from Engan and mitigation specialist Goff at 14 Iannone’s failure to subpoena Dr. Lanyon suggest that Lanyon was healthy enough to 15 appear in person. 16 Ellison is not entitled to habeas relief on this basis. As an initial matter, Ellison has 17 not met his heavy burden of demonstrating, by clear and convincing evidence, that the 18 challenged factual determination was unreasonable. The transcript from the status 19 44 This conclusion is not undermined by the fact that certain aspects of the PCR court’s 20 analysis related to Dr. Lanyon may be subject to criticism. As noted, the PCR incorrectly described Aiken as a “doctor” in the course of describing trial counsel’s efforts to obtain 21 other expert opinions, beyond those of Dr. Lanyon, to be used for mitigation purposes. But 22 as discussed in the text, no clearly established law required trial counsel to look beyond Dr. Lanyon or question Dr. Lanyon’s conclusions. Thus, any factual error in describing 23 Aiken was immaterial. For similar reasons, although the Court tends to agree with 24 Ellison’s contention that PCR court erred by characterizing trial counsel’s “decision to avoid further evaluations of Ellison” by other experts as an example of an unreviewable 25 “clear strategic decision” (PCR Ruling, 7/13/15 at 9-10)—as noted in Weeden v. Johnson, 26 854 F.3d 1063 (9th Cir. 2017), there is no strategic downside to consulting with an additional expert, as “simply procuring a report does not mean it must be produced,” id. at 27 1070—the broader point is that no clearly established law required trial counsel to provide 28 a strategic justification for this (in)action. Instead, counsel was entitled to rely on Dr. Lanyon’s opinions.

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1 conference shows that after Engan expressed hope that Dr. Lanyon would recover by mid- 2 January 2004, Judge Moon responded that he was “hoping that [Dr. Lanyon] was basically 3 ready to go but for the critical medical condition, and that he doesn’t have to then take 4 more time to be prepared for trial once he’s healthy enough to travel.” (RT 12/5/03 at 3- 5 4.) Engan replied that he couldn’t “venture an opinion on that.” (Id. at 4.) This exchange 6 fails to clearly and convincingly establish that Dr. Lanyon’s health was no longer an issue 7 at the time of his testimony on February 12, 2004. 8 The notes cited by Ellison are also insufficient to make this showing. Although the 9 typewritten notes, dated February 5, 2004, reflect concern over the fact that “Ian[n]one had 10 not subpoenaed witnesses,” there is no specific discussion there of Dr. Lanyon’s health or 11 availability—in fact, the one expert who is discussed by name is Dr. Tucker. (PCR Pet., 12 Ex. C) Meanwhile, on the handwritten notes on the following page, there is an indication 13 that Iannone was going to speak with Dr. Lanyon that night about his testimony. (Id.) This 14 is insufficient to overcome, by clear and convincing evidence, the presumption of 15 correctness that attaches to the PCR court’s factual findings about Dr. Lanyon’s health and 16 inability to testify in person. See 28 U.S.C. § 2254(e)(1); Miller-El II, 545 U.S. at 240. 17 Alternatively, even assuming for the sake of argument that the PCR court made an 18 unreasonable factual determination when explaining why trial counsel allowed Dr. Lanyon 19 to testify telephonically rather than in person (and, thus, also erred in evaluating whether 20 counsel’s performance was deficient), the PCR court separately found that Ellison had not 21 demonstrated prejudice: “If one assumes for purposes of evaluating all the legal issues that 22 Ellison’s trial counsel performed deficiently, the issue of prejudice remains. . . . The errors 23 and deficiencies that Ellison claims his attorneys made in the sentencing trial are not 24 sufficiently substantial to create a doubt that a rational jury would have found the proffered 25 mitigating circumstances sufficiently substantial to call for leniency.” (PCR Ruling, 26 7/13/15 at 16-17.) Ellison has failed to meet his burden under § 2254(d) of showing error 27 in this analysis. Although Ellison asserts in conclusory fashion that testifying by phone, 28 rather than in person, rendered Dr. Lanyon’s testimony “ineffectual” (Doc. 21 at 232), he

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1 cites no law to support that assertion, let alone clearly established federal law. Cf. Cox v. 2 Del Papa, 542 F.3d 669, 683 (9th Cir. 2008) (“Nor was it unreasonable for counsel to 3 comment upon the expert statements in the record rather than call the experts to testify 4 directly to the court. Cox offers no reason to believe that the court would have learned 5 anything different or in addition to their reports, and he does not mention any expert who 6 might have offered a new and more powerful mitigating argument.”). 7 Finally, Ellison asserts that the PCR court’s rejection of his ineffective-assistance 8 claim predicted on counsel’s failure to call Durand as a mitigation witness was “legally 9 and factually unreasonable.” (Doc. 21 at 230.) As noted, the PCR court found that “the 10 substance of Mary Durand’s knowledge of Ellison’s childhood and social history were 11 presented in substance to the jury through the testimony of Dr. Richard Lanyon and Dr. 12 Tucker.” (PCR Ruling, 7/13/15 at 10.) Ellison contends this finding is erroneous because 13 Dr. Tucker “presented virtually no testimony of actual events in Ellison’s childhood or 14 social history.” (Doc. 21 at 230.) This is incorrect. Dr. Tucker was asked by defense 15 counsel to assume a series of hypotheticals that directly reflected the facts of Ellison’s 16 childhood and social history. (RT 12/4/04 at 30-59.) Dr. Lanyon and the lay witnesses 17 also testified at length about actual events Ellison experienced in his childhood and youth, 18 including parental neglect, sexual abuse, and drug use. 19 Ellison also argues that, if Durand had testified, she “would have been able to give 20 a detail[ed] account of Ellison’s complete life history,” including his mother’s indifference 21 and cruelty, “the horrific details of the sexual abuse” committed by his older brother, and 22 his rape by a “dangerous and violent bunkmate in prison” when Ellison was in his early 23 20s. (Doc. 21 at 230.) But the PCR court correctly found that “[t]he choice of which 24 witness to use to present important mitigating testimony is a matter of trial strategy.” (PCR 25 Ruling, 7/13/15 at 10.) “Few decisions a lawyer makes draw so heavily on professional 26 judgment as whether or not to proffer a witness at trial.” Lord v. Wood, 184 F.3d 1083, 27 1095 (9th Cir. 1999); see also Rhode v. Hall, 582 F.3d 1273, 1284 (11th Cir. 2009) (“Which 28 witnesses, if any, to call, and when to call them, is the epitome of a strategic decision, and

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1 it is one that we will seldom, if ever, second guess”). 2 Iannone did not recall whether he asked Durand to testify. (RT 8/21/14 at 137.) 3 However, he had “a lot of discussions with [her] while she was on the case.” (Id. at 166.) 4 Iannone’s decision not to call Durand thus qualifies as an informed and strategic choice 5 made after a thorough investigation, which, under Strickland, means it is “virtually 6 unchallengeable.” 466 U.S. at 690. At any rate, the record is not clear about Durand’s 7 ability to testify at the sentencing hearing and, as the PCR court found, Iannone found other 8 ways to present the mitigating evidence Durand had gathered while she was active on the 9 case. Under these circumstances, Ellison has not overcome the strong presumption that 10 counsel’s decision not to call Durand was made in the exercise of sound trial strategy. 11 Strickland, 466 U.S. at 690. 12 In sum, counsel’s mitigation-related performance at sentencing was “well within the 13 range of professionally reasonable judgments.” Van Hook, 558 U.S. at 12 (quoting 14 Strickland, 466 U.S. at 699). In Van Hook, defense counsel spoke with the defendant’s 15 mother, father, aunt, and a family friend; met with two expert witnesses; reviewed military 16 and medical records; and “looked into” retaining a mitigation specialist. Id. at 9-10. At 17 sentencing, counsel presented mitigating evidence about the defendant’s traumatic 18 childhood, which was a “combat zone” of physical and sexual violence by the father against 19 the mother, and his impairment due to drugs and alcohol on the day of the crime. Id. The 20 Supreme Court found that the scope of counsel’s investigation was reasonable even though 21 counsel did not interview all of the defendant’s relatives or a psychiatrist who treated his 22 mother. Id. at 11. By this standard, Ellison’s counsel’s performance in investigating and 23 presenting mitigation evidence was not deficient. With the report prepared by Dr. Lanyon 24 and the extensive social history evidence gathered by the mitigation specialists, there was 25 no reason for counsel to suspect that “worse details” about Ellison’s background existed. 26 Id. This was not a case in which counsel “failed to act while potentially mitigating evidence 27 stared them in the face.” Id.; see also McGill, 16 F.4th at 698 (“McGill has not shown that 28 counsel performed deficiently under Strickland at the penalty phase of his trial. The PCR

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1 court reasonably concluded that counsel’s preparation, investigation, and presentation of 2 mitigation evidence was thorough and reasoned. As a whole, the defense team uncovered 3 a ‘not insignificant’ amount of mitigation evidence that spanned decades of McGill’s life 4 and presented a comprehensive picture to the jury.”); Murray, 745 F.3d at 1012-14. 5 Nor was this a case where counsel presented mitigating evidence “to the jury only 6 in the vaguest of terms,” Bean v. Calderon, 163 F.3d 1073, 1081 (9th Cir. 1998), or 7 introduced Ellison’s social history “in a cursory manner that was not particularly useful or 8 compelling,” Douglas v. Woodford, 316 F.3d 1079, 1090 (9th Cir. 2003), or failed to 9 “explain the significance of the mitigating evidence” that was presented, Mayfield v. 10 Woodford, 270 F.3d 915, 928 (9th Cir. 2001). The lay witnesses, Dr. Tucker, and Dr. 11 Lanyon presented concrete details to the jury about the horrific emotional, physical, and 12 sexual abuse Ellison suffered. The experts also expressly linked that suffering, together 13 with Ellison’s psychological issues, to his criminal behavior. 14 At any rate, once the additional layer of deference mandated by the AEDPA is 15 applied, see Titlow, 571 U.S. at 15, the PCR court’s determination that counsel did not 16 perform deficiently in the investigation and presentation of mitigating evidence was neither 17 contrary to nor an unreasonable application of clearly established federal law, nor was it 18 based on an unreasonable determination of the facts. 19 b. Subclaim 2: Investigating And Presenting FASD Evidence 20 In subclaim 2 of Claim 45(C), Ellison contends that “in addition to their other 21 failures in mitigation, trial counsel failed to investigate, develop, or present any evidence 22 related to FASD. That failure was deficient and prejudicial.” (Doc. 21 at 235.) 23 The PCR court denied this claim following the evidentiary hearing. (PCR Ruling, 24 7/13/15 at 13-17.) First, the court noted that “at the time of the Ellison sentencing trial in 25 2004, none of his attorneys, nor any other members of the defense team or experts 26 considered fetal alcohol syndrome as a possibility.” (Id. at 13.) The court also noted that 27 Everett, Ellison’s first defense attorney and his Strickland expert at the evidentiary hearing, 28 “testified that he never thought of it (PFAS), either.” (Id.) Likewise, the court noted that

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1 Durand “never considered [FAS or PFAS] because she did not see it in Ellison’s face (most 2 frequently, symptoms of fetal alcohol syndrome include deformities of the facial features, 3 which are not evident in Ellison’s face).” (Id. at 13-14.) The court also noted that “[d]uring 4 the time prior to Ellison’s sentencing trial in 2004, fetal alcohol syndrome and partial fetal 5 alcohol syndrome were not universally recognized within the medical community as a 6 significant diagnosis. The DSM IV did not recognize fetal alcohol syndrome as a mental 7 illness or defect.” (Id. at 14.) 8 The court next considered the testimony of Dr. Brown and summarized her 9 testimony as follows: 10 She explained that fetal alcohol syndrome means in most cases a high risk of criminal behavior. A person who suffers from fetal alcohol syndrome will 11 be a high risk to reoffend. Much like people with anti-social personality 12 disorders, persons with fetal alcohol syndrome will have poor impulse control, poor judgment, little or no empathy towards their victims, and poor 13 communication skills. The most frequently observed criminal offenses 14 committed by persons with fetal alcohol syndrome are crimes against persons. Dr. Brown also testified that she and Dr. Adler first testified about 15 fetal alcohol syndrome in 2007—3 years after Ellison’s sentencing trial. 16 Dr. Brown acknowledged that Dr. Richard Lanyon described a diagnosis of 17 attention deficit disorder during his testimony in the sentencing trial. She agreed that Ellison does suffer from an attention deficit disorder. She further 18 explained that the ADHD diagnosis has similar elements to the diagnosis of fetal alcohol syndrome. . . . 19 Most importantly to this court, was Dr. Brown’s acknowledgement under 20 cross-examination that significant essential elements of PFAS or FASD 21 diagnosis were absent in Ellison’s case. Ellison’s detailed and good memory was inconsistent with her findings of partial fetal alcohol syndrome disorder. 22 She also acknowledged that Ellison’s canny or savvy behavior with the 23 police (during his interrogation where he sought a ‘deal’ with the police) showed significant executive functioning abilities—again inconsistent with 24 her findings of partial fetal alcohol syndrome disorder. Sufferers from PFAS 25 were followers, not leaders, per Dr. Brown. And, as Iannone explained in his testimony, there was strong evidence that Ellison was the leader, not 26 Finch in the Bouchers’ murder. 27 (Id. at 19-20.) 28 The court also “discounted” the testimony of Drs. Adler and Wu, who opined on the

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1 brain imaging results obtained by the MRI and DTI. (Id. at 15 n.24.) The court noted that 2 a neuro-radiologist, Dr. Karis, had read Ellison’s MRI as within normal limits and 3 unremarkable and that DTI studies “are not readily or fully understood by other experts in 4 the field as they relate to normal vs. abnormal brains.” (Id.) 5 The court concluded that “Ellison has failed to prove that he does suffer from either 6 fetal alcohol syndrome disorder or from partial fetal alcohol disorder.” (Id. at 15.) The 7 court elaborated: 8 Specifically, it appears that virtually all of the symptoms evidencing partial or complete fetal alcohol syndrome disorder are also the symptoms for 9 attention deficit disorder (which were diagnosed by Dr. Lanyon and 10 presented to Ellison’s sentencing jury), or an anti-social personality disorder. An anti-social personality disorder is not a mitigating circumstance; rather it 11 might be considered an aggravating circumstance. That is, that Ellison has a 12 lack of empathy, is impulsive, he has no remorse, he is prone to criminality, and he is dangerous and likely to recidivate—all are not mitigating 13 circumstances. And, finally, Ellison’s good memory and canny, savvy, non- 14 follower behavior are strong indications that he does not suffer from any form of fetal alcohol syndrome. However, they are consistent with anti- 15 social personality disorder. 16 (Id. at 15-16.) 17 The court then considered the issue of prejudice, concluding there was not a 18 reasonable probability of a different outcome had counsel presented FASD evidence. (Id. 19 at 16-17.) The court described the six aggravating factors found by the jury as “compelling 20 evidence of the jurors’ conclusions that Ellison is dangerous, cruel, and incapable of 21 empathy.” (Id. at 16.) The court also emphasized that “[t]he factual information regarding 22 Ellison’s difficult childhood, his drug use, his impaired ability/capacity to conform his 23 conduct to society’s standards, and the other proposed mitigating circumstances were 24 presented” at sentencing. (Id. at 16-17.) The court continued: 25 If evidence of Partial Fetal Alcohol Syndrome had been presented, it is likely 26 that the state would have presented evidence that these symptoms also indicated an anti-social personality disorder—and the inherent dangers that 27 individuals with this disorder present to the public at large. Most 28 importantly, the murders of Joseph and Lillian Boucher were horribly cruel murders committed by a person without empathy. . . . That jury saw that

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1 Ellison was a dangerous person previously convicted of serious crimes and 2 on parole at the time of the murders. It is difficult, if not impossible, to imagine that any reasonable juror would find that the proposed mitigating 3 circumstances (assuming that all mitigating circumstances suggested by Ellison in these proceedings were proven) were sufficiently substantial to call 4 for leniency for this brutal, cruel crime. I find that no reasonable juror would 5 so find. 6 (Id. at 17.) 7 The PCR court’s ruling was neither contrary to nor an unreasonable application of

8 clearly established federal law, nor was it the result of unreasonable factual determinations.

9 First, counsel’s performance was not deficient. Before the guilt phase of trial, Iannone

10 moved for the appointment of Dr. Levitt, a forensic psychiatrist, to evaluate Ellison and

11 report any “psychiatric issues” to counsel “with specific reference to the exploration of a

12 possible mental health defense . . . and the exploration of mental-health based mitigation

13 factors.” (ROA, Vol. IV, Doc. 121.) The trial court granted the motion. (ROA, Vol. IV,

14 Doc. 127.) Dr. Levitt subsequently cautioned Iannone not to call her as a witness. (RT

15 8/21/04 at 178,)

16 Following the guilty verdicts, Iannone moved for authorization to retain an expert

17 to evaluate Ellison and consult with counsel “regarding any neuropsychological issues that

18 should be presented to the Court prior to sentencing.” (ROA, Vol. V, Doc. 179.) The trial

19 court granted the motion. (ROA, Vol. V, Doc. 180.) Dr. Lanyon was “well-

20 recommended”—including, in Ellison’s case, by mitigation specialist Durand—and

21 Iannone recalled having worked with him on several previous cases. (RT 8/21/14 at 141,

22 199.) Dr. Lanyon conducted a psychological evaluation, performed a battery of

23 neuropsychological tests, and prepared a 17-page report. (See EIR Doc. 111, Ex. E20.)45

24 Dr. Lanyon concluded that despite a serious head injury suffered as a teenager and a history

25 of drug and alcohol abuse, Ellison’s “neuropsychological evaluation showed no overall

26 impairment of the type that is due to brain dysfunction.” (Id. at 17.)

27 28 45 “EIR” refers to the documents number in the Electronic Index of Records prepared in Case No. CR-15-425-PC.

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1 In deciding not to pursue evidence of organic brain damage, including FASD, 2 Ellison’s counsel were entitled to rely on the findings and opinions of Drs. Levitt and 3 Lanyon. See, e.g., Crittenden, 624 F.3d at 966 (“Attorneys are entitled to rely on the 4 opinions of properly selected, adequately informed and well-qualified experts.”). In 5 Fairbank v. Ayers, 650 F.3d 1243 (9th Cir. 2011), the Ninth Circuit rejected a similar 6 habeas claim of ineffective assistance of counsel. There, the defense presented two experts 7 at sentencing. Id. at 1249. The first was a psychiatrist specializing in addiction medicine 8 who testified “generally” about the effects of cocaine use and drug psychosis. Id. The 9 second was a psychologist, Dr. Fricke, who conducted a psychological exam and referred 10 Fairbank for a neuropsychological evaluation. Id. at 1249, 1252. Based on those test 11 results, Dr. Fricke “ruled out psychosis, mental illness, and neurologic impairment” and 12 instead “concluded that Fairbank had Antisocial Personality Disorder.” Id. at 1252. In 13 seeking habeas relief, Fairbank presented the opinions of new experts, including a 14 neuropsychologist, who opined that he suffered from brain damage at the time of the crime 15 “and that this damage should have been apparent when Fricke conducted his review.” Id. 16 Fairbank also argued that additional mitigating evidence could have been discovered if Dr. 17 Fricke had personally interviewed his health care providers. Id. Nevertheless, the Ninth 18 Circuit rejected the habeas claim, explaining: “Even assuming all the allegations are true, 19 Fairbank cannot prove a Strickland violation, because an expert’s failure to diagnose a 20 mental condition does not constitute ineffective assistance of counsel, and a petitioner has 21 no constitutional guarantee of effective assistance of experts.” Id. (cleaned up). 22 Similarly, in Earp, two psychologists and a psychiatrist examined the defendant at 23 the time of trial and found no organic brain damage. 623 F.3d at 1075-76. Some 11 years 24 later, during his habeas proceedings, Earp offered the opinion of a neuropsychologist who 25 concluded that he had “brain damage that was diagnosable at the time of trial.” Id. at 1076. 26 Nevertheless, the Ninth Circuit determined that defense counsel was not ineffective: 27 Earp’s defense counsel was pursuing the possibility of organic brain 28 damage—there was just no evidence to support that theory. . . . We cannot fault trial counsel for failing to further investigate potential mitigating

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1 evidence of organic brain damage when the thorough defense investigation, 2 that explicitly pursued the possibility of organic brain damage, uncovered no helpful information. Furthermore, [the] contradictory diagnosis of organic 3 brain damage, received eleven years after Earp’s trial, is insufficient to 4 overcome the contemporaneous documentation that indicated that Earp did not have organic brain damage. . . . The fact that Earp can now present a 5 neuropsychologist who is willing to opine that he had organic brain damage 6 at the time of his trial does not impact the ultimate determination of whether 7 Earp’s trial counsel insufficiently investigated that possibility.

8 Id. 9 As Crittenden, Earp, and a host of similar Ninth Circuit decisions46 make clear, 10 Ellison’s trial counsel cannot be said to have engaged in deficient performance under these 11 circumstances. 12 It is also important to note, as the PCR court did, that neither Everett (Ellison’s first 13 counsel and his Strickland expert at the post-conviction evidentiary hearing) nor Durand 14 (an experienced and skilled mitigation specialist), both of whom met with Ellison 15 frequently, ever considered the possibility of FASD. Indeed, even when imaging of 16 Ellison’s brain was taken several years after his sentencing, the results were disputed. Dr. 17 Karis, a neuroradiologist, read an MRI taken in 2010 and found it “unremarkable” with 18 “the midline structures . . . within normal limits.” (RT 8/18/14 at 185-87.) Dr. Karis 19 determined that this was “entirely normal, in every respect a normal MRI.” (Id. at 146.) 20 These considerations amplify why Ellison’s trial counsel cannot be said to have rendered 21 ineffective assistance by failing to discover and present the FASD evidence that Ellison’s 22 habeas counsel now believes should have been presented. 23 46 24 See, e.g., see Boyer v. Chappell, 793 F.3d 1092, 1103 (9th Cir. 2015); Leavitt v. Arave, 646 F.3d 605, 609-10 (9th Cir. 2011); West v. Ryan, 608 F.3d 477, 488-89 (9th Cir. 25 2010); Mitchell v. United States, 790 F.3d 881, 893 (9th Cir. 2015) (“In 2009, habeas 26 counsel managed to find a doctor, Pablo Stewart. M.D., who would give them a declaration stating that in 2001 Mitchell suffered from post traumatic stress disorder and substance- 27 induced psychotic disorder. . . . At most, Dr. Stewart’s new diagnosis of Mitchell’s mental 28 state, eight years after-the-fact, is a difference in medical opinion, not a failure to investigate.”) (cleaned up).

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1 Finally, the parties disagree about the extent to which a diagnosis of FASD or other 2 fetal alcohol disorders was available as a mitigating circumstance at the time of Ellison’s 3 sentencing in 2004. There is no dispute that at the time such diagnoses were not contained 4 in the DSM-IV-TR; nor, however, is there any dispute that the conditions had been 5 recognized since at least the 1990s. See, e.g., Williams v. Calderon, 52 F.3d 1465, 1471 6 (9th Cir. 1995) (discussing claim that counsel failed to present mitigating evidence that 7 defendant “apparently suffered from fetal alcohol syndrome”). Nevertheless, the 8 availability of FASD as a mitigating circumstance is ultimately a secondary issue. Again, 9 “the relevant inquiry . . . is not what defense counsel could have pursued, but rather whether 10 the choices made by defense counsel were reasonable.” Murray, 745 F.3d at 1011 (citation 11 omitted). Here, for the reasons already discussed, counsel proceeded reasonably after 12 obtaining an opinion from a qualified expert that their client did not have organic brain 13 damage. Cf. Anderson v. Kelley, 938 F.3d 949, 957 (8th Cir. 2019) (“Though his case may 14 have benefitted had his counsel investigated FASD, we consider ‘not what is prudent or 15 appropriate, but only what is constitutionally compelled.’”) (citation omitted). 16 Alternatively, even if Ellison had shown that counsel performed deficiently in 17 failing to uncover and present evidence that he suffers from FASD, this claim fails to satisfy 18 Strickland’s prejudice prong. As noted, in finding that Ellison was not prejudiced by the 19 omission of FASD evidence, the PCR court noted that such evidence is double-edged, 20 would have been cumulative to the factual evidence presented at sentencing, and would 21 have been insufficient to call for leniency given the strength of the aggravating factors. 22 (PCR Ruling, 7/13/15 at 16-17.) 23 The jury found six aggravating factors, one of which, the multiple-murders 24 aggravator, carries “extraordinary weight” in the sentencing calculus. State v. Hampton, 25 140 P.3d 950, 968 (Ariz. 2006). There is not a reasonable probability that the jury would 26 have reached a different sentence had counsel presented evidence that Ellison suffered 27 from FASD, particularly in light of the powerful mitigation evidence they did present 28 detailing Ellison’s severely dysfunctional family life, chronic substance abuse, and ADHD.

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1 Byram v. Ozmint, 339 F.3d 203, 211 (4th Cir. 2003) (“[E]ven if additional information or 2 records on Byram’s childhood could have been obtained, this is not a case where counsel’s 3 failure to thoroughly investigate kept the jury completely in the dark as to defendant’s 4 alleged mental problems.”) (cleaned up). Dr. Tucker testified that methamphetamine is a 5 “neurotoxin” that causes permanent damage to the brain and that ADHD is a “devastating” 6 “neuropsychiatric disease.” (RT 2/12/04 at 24, 61.) Drs. Tucker and Lanyon also testified 7 about the effects of Ellison’s birth defect, his mother’s emotional cruelty, and the sexual 8 abuse perpetrated by his older brother—factors which led Ellison to self-medicate with 9 drugs and alcohol. 10 Although the Ninth Circuit has recognized that “[i]n some cases, FASD evidence 11 might be sufficiently different from . . . other evidence of mental illness and behavioral 12 issues to raise a reasonable probability that a juror would not have imposed the death 13 penalty had it been presented,” Floyd v. Filson, 949 F.3d 1128, 1141 (9th Cir. 2020) 14 (cleaned up), courts have also consistently recognized that FASD evidence can be a double- 15 edged sword. See, e.g., Brown v. Thaler, 684 F.3d 482, 499 (5th Cir. 2012) (unpresented 16 FASD evidence was “‘double-edged’ because, although it might permit an inference that 17 he is not as morally culpable for his behavior, it also might suggest that he, as a product of 18 his environment, is likely to continue to be dangerous in the future.”) (cleaned up); Trevino 19 v. Davis, 861 F.3d 545, 551 (5th Cir. 2017) (“This is a significant double-edged problem 20 . . . . Jurors could easily infer from this new FASD evidence that Trevino may have had 21 developmental problems reflected in his academic problems and poor decisionmaking, but 22 that he also engaged in a pattern of violent behavior toward both Cruz and Salinas that he 23 understood was wrong.”). Thus, whether the omission of such evidence results in prejudice 24 is a function of the mitigating evidence that was presented and the strength of the 25 aggravating factors. Floyd, 949 F.3d at 1140-41. 26 Ellison’s counsel presented a substantial case in mitigation advancing, among other 27 circumstances, psychological impairments for which Ellison bore no blame, including 28 ADHD and a constellation of significant emotional problems caused by his handicap and

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1 his abusive and neglectful family life. For example, Dr. Tucker testified that ADHD, which 2 has a genetic component, is a disorder of the frontal lobes of the brain where executive 3 functioning, judgment, and reasoning occur. (RT 2/12/04 at 62-64.) Dr. Tucker also 4 testified that impulsivity is one of the symptoms of ADHD and that untreated ADHD is a 5 risk factor for substance abuse, depression, unemployment, and criminal behavior. (Id. at 6 62, 65.) Both Dr. Lanyon and Dr. Tucker testified that the number and severity of the 7 negative factors to which Ellison was subjected—which Dr. Tucker testified were “almost 8 too much to think about together in one person” (id. at 39)—prevented Ellison from 9 developing judgment and coping skills and placed him at a much greater risk for criminal 10 behavior. (Id. at 52-53.) Given this backdrop, it was reasonable for the PCR court to 11 conclude that linking Ellison’s poor judgment and impulsivity to FASD instead of ADHD 12 would not have produced substantial additional mitigating value. See, e.g., Floyd, 949 F.3d 13 at 1140 (“[A] capital petitioner is not necessarily prejudiced when counsel fails to introduce 14 evidence that differs somewhat in degree, but not type, from that presented in mitigation.”); 15 Bible v. Ryan, 571 F.3d 860, 870-71 (9th Cir. 2009) (finding no prejudice from failure to 16 present medical evidence of neurological damage that would have differed only in degree 17 from evidence counsel did present concerning brain damage from persistent drug and 18 alcohol abuse and other causes); Sells v. Stephens, 536 F. App’x 483, 495 (5th Cir. 2013) 19 (“Equally unconvincing is Sells’s assertion that evidence of a fetal alcohol disability would 20 likely have mitigated his sentence. . . . While Sells argues that the blameless nature of fetal 21 alcohol impairment could have had a ‘powerful mitigating effect,’ he ignores the fact that 22 the trial evidence already established that Sells suffered from serious personality and 23 adaptive impairments for which he bore no blame . . . so it is doubtful that Sells would 24 have derived any mitigating benefit merely by linking that diagnosis to fetal alcohol 25 syndrome. Moreover, we have previously found that evidence of fetal alcohol syndrome- 26 related deficiencies is not necessarily beneficial to a criminal defendant.”). 27 Put another way, Ellison’s counsel did not “present[] a much weaker-than-available 28 mitigation argument that was insufficient to overcome an also weak aggravating argument

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1 that clearly troubled some jurors.” Floyd, 949 F.3d at 1141 As an example of such a case, 2 the Ninth Circuit has cited Williams v. Stirling, 914 F.3d 302 (4th Cir. 2019), where the 3 state presented only one aggravating factor and the jury sent a note to the judge on the 4 second day of deliberations indicating it was deadlocked. Floyd, 949 F.3d at 1141. In 5 contrast to Williams, the aggravating factors in Ellison’s case were both numerous and 6 weighty, and there was no evidence that the jury, which deliberated for about a day, had 7 difficulty reaching its verdict. This underscores why the PCR court did not act 8 unreasonably in finding that Ellison was not prejudiced by counsel’s failure to pursue 9 FASD as a mitigating circumstance. See also Trevino, 861 F.3d at 550 (rejecting 10 ineffective assistance claim based on failure to present mitigating FASD evidence because 11 counsel “did present evidence from Trevino’s life history” and the FASD evidence would 12 have been outweighed by aggravating evidence); Carter v. Chappell, 2013 WL 1120657, 13 *99-100 (S.D. Cal. 2013) (rejecting petitioner’s argument that “despite the substantial 14 evidence in aggravation, additional testimony regarding his abusive upbringing and 15 evidence of FASD and brain impairments ‘might well have’ affected the jury’s verdict” in 16 part because “[u]nlike in Williams, Petitioner’s trial counsel presented a substantial amount 17 of mitigating evidence, calling twenty witnesses who traced Petitioner’s upbringing in 18 Nome, his foster home and juvenile institutional placements, later incarcerations, and his 19 marriage, children, and divorce, providing the jury with a picture of Petitioner's 20 background and circumstances” and also “presented evidence of his neglect and abuse at 21 the hands of his parents”); Anderson, 938 F.3d at 958 (“Anderson has not shown that it is 22 reasonably probable that the jury would have reached a different conclusion had they been 23 presented with evidence of FASD. Anderson's counsel presented an extensive mitigation 24 case that convinced the jury to find thirty mitigating circumstances. And the jury heard 25 related evidence on Anderson’s brain limitations . . . .”). 26 In an effort to establish prejudice, Ellison cites Wiggins v. Smith, 539 U.S. 510 27 (2003), Rompilla v. Beard, 545 U.S. 374 (2005), and Porter v. McCollum, 558 U.S. 30 28 (2009). (Doc. 21 at 231, 234, 256.) Those citations are unavailing because the weight of

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1 the mitigating evidence that Ellison argues should have presented in his case falls far short 2 of the omitted evidence the Supreme Court found sufficient to satisfy Strickland’s 3 prejudice prong in those cases. Washington v. Shinn, 46 F.4th 915, 930-34 (9th Cir. 2022) 4 (finding no prejudice from counsel’s failure to present evidence of head injuries, harsh 5 discipline, and a “more complete picture of [petitioner’s] background” where the evidence 6 was “not comparable” to the omitted mitigating evidence in Wiggins, Rompilla, and 7 Porter); Rhoades, 638 F.3d at 1051. 8 In Wiggins, for example, counsel offered only one mitigating circumstance (no 9 violent prior convictions) and failed to present evidence that the defendant suffered 10 consistent abuse during the first six years of his life, was the victim of “physical torment, 11 sexual molestation, and repeated rape during his subsequent years in foster care,” was 12 sometimes homeless, and had diminished mental capacities. 539 U.S. at 535. In Rompilla, 13 counsel neglected to present evidence that the defendant was beaten by his father with fists, 14 straps, belts, and sticks; that his father locked him and his brother in a dog pen filled with 15 excrement; that he grew up in a home with no indoor plumbing and was not given proper 16 clothing; and that test results pointed to schizophrenia, fetal alcohol syndrome, and stunted 17 mental development. 545 U.S. at 391-92. In Porter, “[t]he sum total of the mitigating 18 evidence was inconsistent testimony about Porter’s behavior when intoxicated and 19 testimony that Porter had a good relationship with his son.” 558 U.S. at 32. Counsel failed 20 to present mitigating evidence about “(1) Porter’s heroic military service in two of the most 21 critical—and horrific—battles of the Korean War, (2) his struggles to regain normality 22 upon his return from war, (3) his childhood history of physical abuse, and (4) his brain 23 abnormality, difficulty reading and writing, and limited schooling.” Id. at 41. 24 Unlike counsel in Wiggins, Rompilla, and Porter, Ellison’s counsel supported 25 several mitigating circumstances by presenting humanizing evidence through both lay and 26 expert witnesses that detailed the extraordinary set of obstacles Ellison faced growing up, 27 as well as expert testimony about Ellison’s mental health issues, including his depression, 28 substance abuse, and ADHD. Compare Porter, 558 U.S. at 41 (noting that the “judge and

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1 jury at Porter’s sentencing heard almost nothing that would humanize Porter or allow them 2 to accurately gauge his moral culpability”); Rompilla, 545 U.S. at 393 (finding that the 3 evidence discovered after trial “adds up to a mitigation case that bears no relation to the 4 few naked pleas for mercy actually put before the jury”); Stankewitz v. Woodford, 365 F.3d 5 706, 716-20 (9th Cir. 2004) (granting evidentiary hearing on ineffective assistance claim 6 where counsel failed to investigate and present “an excess of privation and abuses” 7 experienced by petitioner as a child, including severe beatings, foster care, organic brain 8 damage to the point of borderline mental retardation, and drug and alcohol abuse, 9 particularly in the days leading up to the killing). 10 As noted, for purposes of Strickland’s prejudice analysis, the “totality” of the 11 mitigating evidence includes that adduced at trial and in subsequent proceedings. Wiggins, 12 539 U.S. at 534, 526. With respect to the latter category, such evidence includes the FASD 13 diagnosis, the omission of which the PCR court reasonably found not to be prejudicial, but 14 little else. The PCR evidentiary hearing did not demonstrate there was other mitigating 15 evidence that should have been presented and which, added to the mitigating evidence that 16 was offered, would have resulted in a reasonable probability of a life sentence. Rather, the 17 hearing showed that testimony from better-prepared lay witnesses, or from Durand, or live 18 rather than telephonic testimony from Dr. Lanyon, would have duplicated the evidence 19 presented at sentencing and “barely . . . altered the sentencing profile presented” to the jury. 20 Strickland, 466 U.S. at 700; see also Babbitt, 151 F.3d at 1175 (finding no prejudice where 21 counsel failed to present cumulative mitigating evidence). 22 At a minimum, in light of the double layers of deference required by Strickland and 23 AEDPA, the PCR court’s rejection of the claim that defense counsel performed 24 ineffectively with respect to FASD evidence was neither contrary to nor an unreasonable 25 application of clearly established federal law, nor was it based on an unreasonable 26 determination of the facts. Titlow, 571 U.S. at 15. 27 c. Subclaim 3: Obtaining A Prison Expert 28 In subclaim 3 of Claim 45(C), Ellison alleges that counsel performed ineffectively

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1 by failing to “obtain a prison/future dangerousness expert.” (Doc. 21 at 256-60.) 2 As background, on October 13, 2003, counsel filed a “motion for authorization to 3 retain consultants.” (ROA, Vol. VI, Doc. 246.) The motion identified two consultants— 4 James Aiken, a North Carolina-based former prison warden and an expert in the 5 “correctional field”; and Russell Van Vleet, Ph.D., an expert in the juvenile justice 6 system—and provided their resumes. (Id.) 7 The trial court held a brief hearing on the motion. (RT 10/24/03.) Counsel agreed 8 with Judge Moon that one of the areas the defense wished to explore with Aiken was 9 whether Ellison could be safely “locked up” but indicated that Aiken had not yet 10 formulated an opinion on that issue. (Id. at 4.) Judge Moon stated that he didn’t know 11 how Aiken could have any foundation to opine about whether Ellison could be 12 rehabilitated, whether he was an escape risk, “or would or would not ever pose a threat to 13 others.” (Id. at 6.) Judge Moon then expressed skepticism that such testimony would be 14 helpful to the trier of fact. (Id.) The court took the request for Aiken’s appointment under 15 advisement (id. at 7) but ultimately denied it, finding “that there is no showing that Mr. 16 Aiken’s proposed testimony or consultation will assist the jury.” (ME 10/24/03.) During 17 the same hearing, Ellison’s counsel explained that Dr. Van Vleet would investigate “[h]ow 18 Ellison’s juvenile corrections experience contributed to his commission of this crime.” (RT 19 10/24/03 at 7.) The court granted counsel’s motion to retain Dr. Van Vleet. (Id.) 20 Ellison now argues that counsel performed ineffectively by failing to explain the 21 purpose of Aiken’s anticipated testimony—that is, evaluating a prisoner’s record and 22 determining if he would pose a danger to the staff or other prisoners if sentenced to life— 23 and its relevance as mitigating evidence and by failing to file a special action to appeal the 24 trial court’s ruling. (Doc. 21 at 257-58.) Ellison further notes that, in a 2011 report 25 prepared as part of the PCR proceedings, Aiken opined that Ellison “would not pose an 26 unusual danger to correctional officers, officials or inmates” and that, to the contrary, 27 Ellison himself needed to be protected from “the predatory, more dangerous, violent, and 28 disruptive prison population.” (PCR Pet., Ex. H, ¶ 19.) The PCR court summarily rejected

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1 this claim as “clearly related to decisions of trial strategy,” noting that although a “prison 2 expert [might] opine that the Defendant was not violent and posed no danger to society,” 3 “strong evidence to the contrary existed in the Arizona Department of Corrections’ 4 records.” (PCR Ruling, 7/16/12 at 5.)47 5 Ellison’s habeas challenge to this ruling is meritless. The record contradicts any 6 suggestion that Judge Moon was somehow unaware that Aiken’s investigation would have 7 addressed Ellison’s potential for danger in prison. Thus, it wasn’t necessary for counsel to 8 further explain the purpose for which they sought Aiken’s appointment. Accordingly, 9 Ellison has failed to overcome the Strickland presumption that counsel’s performance was 10 reasonable. Counsel did not “limit” their investigation or “fail to pursue an expert.” (Doc. 11 21 at 259.) To the contrary, they pursued Aiken’s appointment so they could expand their 12 investigation, only for Judge Moon to disagree about the value of the requested evidence. 13 Ellison fails to cite any case in which an attorney was found ineffective for failing to re- 14 urge a request for expert assistance that had already been denied. 15 In addition, as Respondents note, Ellison cannot show prejudice. Even if Aiken had 16 been appointed before the sentencing phase of trial and opined that Ellison would not pose 17 a danger to guards or inmates if sentenced to life, such evidence would have been of 18 minimal mitigating value, especially in view of the six aggravating factors found by the 19 jury. Even where petitioners have shown themselves to be, unlike Ellison, “model 20 prisoners,” the factor is accorded “minimal weight because of the expectation that prisoners 21 behave in prison.” State v. Kiles, 213 P.3d 174, 191 (Ariz. 2009). 22 In sum, Ellison has not demonstrated that counsel performed ineffectively with 23 respect to Aiken’s appointment, let alone overcome the second layer of deference accorded 24 the PCR court’s denial of this claim under AEDPA. Richter, 562 U.S. at 105. 25 26 47 Aiken’s 2011 report listed Ellison’s disciplinary infractions, which included threatening inmates with violence and urinating on his cell door; possession of tattooing 27 paraphernalia; refusal to exit the dining area; manufacture of a dangerous weapon (a “blow 28 dart made from a sharpened coaxial cable”); possession of dangerous contraband (a “lighter in his anus”); and failure to produce a urine sample. (PCR Pet., Ex. H, ¶ 12.)

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1 d. Subclaim 4: Brown’s Testimony 2 Ellison alleges in sub-claim 4 of Claim 45(C) that trial counsel were ineffective 3 during the sentencing phase of trial (just as he alleges they were during the guilt phase of 4 trial) in failing to obtain Ellison’s jail records to rebut Vivian Brown’s testimony that she 5 saw Ellison in 1998 near her parents’ home. (Doc. 21 at 260-62.) The PCR court denied 6 this claim as “of little moment or relevance to guilt or punishment.” (PCR Ruling, 7/16/12 7 at 5.) 8 Even if counsel had obtained and used the jail records, casting doubt on Brown’s 9 testimony about the timing of her second sighting of Ellison, there was not a reasonable 10 probability that such evidence would have resulted in a different sentencing-phase verdict. 11 Ellison’s leadership role in the murders was established by other evidence, including 12 Brown’s testimony regarding her first contact with him at her parents’ house in 1997. Thus, 13 Ellison has not rebutted the strong presumption of competent performance under Strickland 14 or shown that he was prejudiced by counsel’s performance. This claim of ineffective 15 assistance is meritless. 16 e. Subclaim 5: Calling Hill As A Mitigation Witness 17 In subclaim 5 of Claim 45(C), Ellison alleges that counsel performed ineffectively 18 in failing to present the testimony of jailhouse informant Daymond Hill during the 19 sentencing phase of trial. (Doc. 21 at 262-73.) The PCR court concluded this subclaim 20 was not colorable because the issue was “of little moment or relevance to guilt or 21 punishment.” (PCR Ruling, 7/16/12 at 5.) 22 As described above, during the guilt phase of trial, Ellison’s counsel filed a motion 23 in limine to admit Hill’s testimony but Judge Moon found that testimony inadmissible on 24 relevance grounds. The Arizona Supreme Court found no error, explaining that although 25 Hill’s statements may have been “marginally relevant” as to the ringleader issue, they were 26 not relevant as to guilt. Ellison, 140 P.3d at 914. 27 Even assuming the statements would have been admissible at sentencing, Ellison 28 cannot satisfy the doubly deferential standard that applies to this claim. As an initial matter,

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1 Ellison hasn’t shown that Hill was available and willing to testify at the sentencing phase 2 of his trial, which occurred four years after Hill provided his statement to the defense. 3 United States v. Harden, 846 F.2d 1229, 1231-32 (9th Cir. 1988) (denying ineffective 4 assistance claim based on failure to call a witness because there was “no evidence in the 5 record which establishes that [the witness] would testify. . . .”). 6 More important, Ellison cannot meet his burden of showing prejudice under 7 Strickland. As both Judge Moon and the Arizona Supreme Court noted, Finch’s alleged 8 statements to Hill were of questionable trustworthiness. Ellison, 140 P.3d at 914 (noting 9 Judge Moon’s observation that Finch may have bragged about the murders to protect 10 himself while housed in administrative segregation). And more broadly, the testimony of 11 jailhouse informants like Hill is “met with particular skepticism by juries.” Perry v. New 12 Hampshire, 565 U.S. 228, 262 (2012) (Sotomayor, J., dissenting); see also State v. 13 Carriger, 692 P.2d 991, 1000 (Ariz. 1984) (“We note that testimony of prisoners 14 concerning prison events probably is scrutinized more carefully by a jury than their 15 testimony concerning other events . . . .”). There was not a reasonable probability that 16 Hill’s testimony, with whatever mitigating value the jury assigned it, would have resulted 17 in a finding of leniency given the strength and number of the aggravating factors the jury 18 found. 19 f. Subclaim 6: Voir Dire Of Sentencing-Phase Jury 20 In subclaim 6 of Claim 45(C), Ellison alleges that counsel performed ineffectively 21 by conducting an “inadequate voir dire” of the sentencing jury—more specifically, by 22 “fail[ing] to conduct a Morgan-based voir dire.” (Doc. 21 at 263-68.) The PCR court 23 found that Ellison had not established ineffectiveness because counsel’s “failure to conduct 24 detailed voir dire was clearly related to decisions of trial strategy” and, in a related vein, 25 found that filing a motion for a change of venue was “not warranted . . . where the 26 sentencing jury deliberated two years after the trial, and the trial jury deliberated three years 27 after the crime, and [there was] no evidence that either of the juries were affected by pretrial 28 publicity.” (PCR Ruling, 7/16/12 at 5-6.)

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1 In Morgan, the Supreme Court held that a defendant is entitled to “an adequate voir 2 dire to identify unqualified jurors,” including those who would “impose death regardless 3 of the facts and circumstances of the conviction.” 504 U.S. at 729, 735. The Court further 4 held that simply asking potential jurors whether they can follow the law and be fair and 5 impartial is insufficient. Id. at 735-36. 6 Ellison’s challenge to counsel’s sentencing-stage performance raises arguments the 7 Court previously addressed and rejected with respect to the sufficiency of the guilt-phase 8 voir dire and the extent and nature of the pretrial publicity. The Court will not repeat its 9 analysis of those issues. 10 Ellison also argues that counsel failed to inquire about the effect the victims’ ages 11 would have on jurors in rendering a verdict. (Doc. 21 at 265-67.) This argument is 12 unavailing. The trial court administered a juror questionnaire.48 (RT 1/28/04 at 1 [“The 13 record will show the presence of the defendant and a panel of 174 prospective jurors. . . . 14 We’re doing to start the process of jury selection by having all of you complete a 15 questionnaire under oath . . . .”].) Before beginning voir dire, the court informed the panel 16 of the aggravating factors alleged by the State, include the age of the victims. (RT 2/4/04 17 at 64-65.) The court also listed the potential mitigating circumstances, noted each party’s 18 burden of proof, and explained how the jury would balance aggravating and mitigating 19 circumstances in reaching its verdict. (Id. at 67.) The court asked if any prospective jurors 20 felt they would be unable to follow those procedures, and no hands were raised. (Id.) The 21 court also questioned the panel about their exposure to information about the case. (RT 22 2/4/04 at 42-67; RT 2/5/04 at 32.) The court and counsel also questioned prospective jurors 23 individually. Individual voir dire focused primarily on the answers the prospective jurors 24 25 48 Ellison’s counsel filed a motion to submit jury questionnaire before the sentencing 26 phase. (ROA, Vol. V, Doc. 205.) Attached was a proposed 20-page, 115-question juror questionnaire. (Id.) The court granted the motion, took under advisement the contents of 27 the questionnaire, and stated it would draft a questionnaire and provide it to counsel. (ME 28 11/15/02.) The final sentencing-phase questionnaire, however, does not appear to be a part of the state court record before this Court.

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1 provided on their questionnaires about the death penalty. (RT 2/4/04 at 70-264; RT 2/5/04 2 at 72–241.) Defense counsel participated actively in the voir dire of these prospective 3 jurors, including asking “life-qualifying” questions. Morgan, 504 U.S. at 726. 4 Ellison nonetheless contends that counsel’s voir dire performance was inadequate. 5 As with his guilt-phase claim of ineffective assistance during voir dire, Ellison fails to 6 prove either deficient performance or prejudice. “The conduct of voir dire ‘will in most 7 instances involve the exercise of a judgment which should be left to competent defense 8 counsel.’” Hovey, 458 F.3d at 909-10 (quoting Gustave, 627 F.2d at 906). Ellison again 9 contends there was no evidentiary support for the PCR court’s determination that counsel’s 10 performance was a matter of trial strategy. (Doc. 21 at 267.) But under Strickland, it is 11 presumed that counsel’s actions might be a matter of sound trial strategy. 466 U.S. at 689. 12 Ellison fails to rebut that presumption. Stanford v. Parker, 266 F.3d 442, 455 (6th Cir. 13 2001) (“Since our ‘scrutiny of counsel’s performance must be highly deferential,’ and 14 Stanford has presented no evidence to rebut the presumption that counsel’s failure to ask 15 life-qualifying questions . . . constituted sound trial strategy, we reject his ineffective 16 assistance claim under Strickland’s performance prong.”) (citation omitted). 17 Ellison also contends that counsel should have objected to the trial court’s 18 “misstatements of the law.” (Doc. 21 at 265.) However, in the purported misstatement 19 (RT 1/28/04 at 12), the court did not misstate the law.49 Ellison also fails to show prejudice 20 resulting from counsel’s performance. Prejudice exists in this context if counsel fails to 21 question or move to strike a juror who is found to be biased. Fields, 503 F.3d at 776; Davis 22 v. Woodford, 384 F.3d 628, 643 (9th Cir. 2004). But Ellison does not argue that any biased 23 jurors were empaneled. Sechrest, 816 F. Supp. 2d at 1039 (“Sechrest does not make any 24 49 Judge Moon instructed the panel, with respect to mitigating circumstances: “Some 25 of you might find one, some of you might find another, and you don’t all have to agree on 26 which mitigating circumstances apply, but then you do all have to agree whether or not the mitigators that you each individually find to be true—whether or not those are sufficiently 27 substantial to call for leniency and to not impose the death penalty.” (RT 1/28/2004 at 12.) 28 Ellison does not specify what is incorrect in this formulation, but the unanimity requirement, for example, is a correct statement of the law. Ellison, 140 P.3d at 922.

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1 allegation . . . that any individual who was actually seated on the jury was biased. 2 Therefore, Sechrest cannot show that any conceivable shortcoming of his counsel’s 3 performance with respect to juror voir dire caused him prejudice.”); Campbell, 674 F.3d at 4 594 (“Notably, Campbell has not identified any juror who was actually seated that 5 indicated an inability to set aside any prior knowledge about the case or to judge the case 6 fairly and impartially.”); Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir. 2011) (“Ybarra 7 has not made the required showing of prejudice under Strickland, because he has not shown 8 that any juror who harbored an actual bias was seated on the jury as a result of counsel’s 9 failure to voir dire on the insanity defense.”). 10 In Stanford, the Sixth Circuit rejected a Morgan-based claim of ineffective 11 assistance during voir dire, explaining: 12 Under Strickland’s prejudice prong, Stanford’s counsel’s failure to ask life- qualifying questions during general voir dire did not constitute ineffective 13 assistance of counsel. First, there is no evidence that any potential jurors 14 were inclined to always sentence a capital defendant to death. Second, nothing in the record indicates that counsel’s failure to ask life-qualifying 15 questions led to the impanelment of a partial jury. Third, considering the 16 totality of the evidence, there is no reasonable probability that, even if defense counsel erred, the sentencer would have concluded that the balance 17 of aggravating and mitigating circumstances did not warrant death. 18 266 F.3d at 455. For the same reasons, Ellison cannot show he was prejudiced by counsel’s 19 performance at voir dire. 20 The PCR court’s denial of this claim was neither contrary to nor an unreasonable 21 application of clearly established federal law, nor was it based on an unreasonable 22 determination of the facts. 23 g. Subclaim 7: Sentencing-Phase Instructions 24 In subclaim 7 of Claim 45(C), Ellison alleges that counsel performed ineffectively 25 by “failing to correct the sentencing-phase instructions.” (Doc. 21 at 268-70.) The PCR 26 court rejected this claim as not colorable because Ellison’s characterization of the 27 sentencing instructions as “confusing” was merely “Defendant’s unsupported opinion.” 28 (PCR Ruling, 7/16/12 at 6.)

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1 Before Ellison’s presentation of mitigating evidence, the trial court instructed the 2 jury that “[a] mitigating circumstance is any factor relevant in determining whether to 3 impose a sentence less than death, including any aspect of the defendant’s character, 4 propensities, record, or circumstances of the offense.” (RT 2/10/04 at 4.) At the close of 5 evidence, the court instructed the jury that “[a] mitigating circumstance is one which 6 weighs in favor of leniency and against imposition of the death penalty. Mitigating 7 circumstances relate to any aspects of the defendant’s character, propensities, history, or 8 records, or any circumstances that the jury feels appropriate.” (RT 2/13/04 at 15-16.) The 9 court also listed the five mitigating circumstances proposed by Ellison and added that the 10 jury was “not limited to these mitigating circumstances” and must “also consider any other 11 information admitted as evidence that is relevant in determining whether to impose a 12 sentence less than death.” (Id. at 18.) 13 Ellison contends that counsel performed ineffectively by failing to request an 14 instruction defining a mitigating circumstance as “anything that ‘in fairness or mercy may 15 be considered as extenuating or reducing the degree of moral culpability or blame or which 16 justify a sentence [] less than death.’” (Doc. 21 at 268, quoting Kansas v. Marsh, 548 U.S. 17 163, 175 (2006)). 18 This argument lacks merit. In Boyde v. California, 494 U.S. 370 (1990), the 19 Supreme Court held that the legal standard for reviewing jury instructions that are claimed 20 to restrict a jury’s consideration of relevant mitigation evidence is “whether there is a 21 reasonable likelihood that the jury applied the challenged instruction in a way that 22 prevented the consideration of constitutionally relevant evidence.” Id. at 380. The trial 23 court’s instructions in Ellison’s case did not prevent the jury’s consideration of mitigation 24 evidence. To the contrary, Judge Moon specifically instructed the jury that it was to 25 consider, as possible mitigation, “any factor relevant in determining whether to impose a 26 sentence less than death, including any aspect of the defendant’s character, propensities, 27 record, or circumstances of the offense” along with any other circumstance “the jury feels 28 is appropriate” and “any other information admitted as evidence that is relevant in

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1 determining whether to impose a sentence less than death.” (RT 2/10/04 at 4; RT 2/13/04 2 at 15-16, 18.) These instructions, which are far less restrictive than the instruction upheld 3 in Boyde,50 did not preclude jurors from giving meaningful consideration to any mitigating 4 factor, including fairness or mercy. See, e.g., Krawczuk v. Sec’y, Fla. Dep’t of Corr., 2015 5 WL 4645838, *18 (M.D. Fla. 2015) (“The trial court did not issue any instruction that 6 prevented the jury’s consideration of mitigation evidence. To the contrary, the trial judge 7 specifically instructed the jury that they were to consider, as possible mitigation, ‘any other 8 aspect of the defendant’s character or record, or any other circumstance of the offense.’ 9 The instructions did not prevent jurors from giving meaningful consideration to any 10 mitigating factor, including their feelings of mercy for Petitioner.”), aff’d, 873 F.3d 1273 11 (11th Cir. 2017). 12 Ellison cites evidence of apparent juror confusion during voir dire about the concept 13 of mitigation as proof that the mitigation instruction was inadequate. (Doc. 21 at 268.) 14 This argument is unpersuasive because voir dire took place before the court instructed the 15 jury on the definition of mitigation circumstances and before any argument or evidence 16 was presented. Cf. Boyde, 494 U.S. at 383 (explaining that the “context of the 17 proceedings,” including the presentation of mitigating evidence and the court’s instruction 18 that the jury was to consider all the evidence received during the case, “would have led 19 reasonable jurors to believe that evidence of petitioner’s background and character could 20 be considered in mitigation”). 21 Ellison has failed to meet his burden under Strickland or AEDPA. This claim is 22 meritless. 23 h. Subclaim 8: Closing Argument 24 In subclaim 8 of Claim 45(C), Ellison alleges that counsel performed ineffectively 25 by “failing to present a coherent closing argument or to object to the prosecutor’s closing 26 27 50 At issue in Boyde was a “catch-all” mitigating factor which supplemented the 11 28 statutory mitigators and provided: “Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.” 494 U.S. at 374.

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1 argument.” (Doc. 21 at 270-72.) He asserts that counsel “failed to explain how Ellison’s 2 life story led to him being on trial for murder” and “used arguments that were counter to 3 . . . any of the effective themes known to be persuasive with capital jurors.” (Id.) Ellison 4 also contends that counsel performed ineffectively by failing to object to the prosecutor’s 5 mischaracterizations of mitigating evidence. The PCR court summarily denied this claim 6 as not colorable. (PCR Ruling, 7/16/12 at 6.) 7 Ellison’s criticisms of counsel’s closing argument miss the mark. Counsel’s theme 8 was that, although Ellison was to some degree responsible for his conduct, his degree of 9 responsibility was compromised by a number of factors outside his control that were 10 catastrophic when taken together. (RT 2/13/04 at 28.) The factors included Ellison’s 11 family life, a circumstance that was not of his choosing. (Id.) Counsel argued that Ellison 12 was scapegoated, beaten by his father, ignored by his mother, and sexually molested by his 13 older brother. (Id. at 30-33.) Counsel argued that Ellision acted out in negative ways 14 because he was desperate for attention. (Id.) Counsel argued that, instead of learning 15 coping skills, Ellison abused alcohol and drugs, including methamphetamine—which his 16 older brother Mike taught him to use intravenously—to numb the pain. (Id. at 33.) Counsel 17 argued that Ellison suffered chronic physical and emotional pain from the many surgeries 18 and the bullying that resulted from his birth defect. (Id. at 31.) Counsel also emphasized 19 that Ellison suffered from ADHD, a genetic condition. (Id. at 31.) Counsel argued that 20 “pain was the central fact of Charlie’s life.” (Id. at 32.) 21 Counsel conceded that Ellison was legally and morally responsible for the murders, 22 and therefore needed to be punished, but argued that his “ability to appreciate right from 23 wrong” was “diminished by his environment,” including the alcohol and drugs he used and 24 the fact that he grew up without any positive role models. (Id. at 34-35.) Counsel noted 25 as emblematic of Ellison’s dysfunctional family that Ellison’s mother and brother Ken had 26 been late for their testimony because Mrs. Ellison was gambling at a casino and couldn’t 27 leave because she was on a “hot streak.” (Id. at 35.) Counsel also argued that Ellison 28 showed no real violence in his prior convictions, including the armed robbery offense,

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1 which he described in detail. (Id. at 41-42.) Counsel urged that Ellison, despite his “pretty 2 dumb decisions . . . is still a man. He’s not a monster. He’s not a caricature. He’s a human 3 being.” (Id. at 43.) Counsel concluded by arguing that pain, alcohol, and drugs had 4 damaged Ellison’s brain, but Ellison was “responsible for where he was even if he couldn’t 5 control exactly how he got there.” (Id. at 44.) Counsel argued that a life sentence rather 6 than death was the appropriate sentence. (Id.) 7 In his rebuttal closing argument, counsel, responding to the prosecution’s 8 arguments, again asserted that Ellison’s brain had been damaged by his use of 9 methamphetamine, a neurotoxin. (Id. at 79.) Counsel also detailed the evidence supporting 10 the allegation that Ellison was sexually abused by his brother. (Id. at 76-79.) Counsel 11 asked the jury to weigh the mitigating circumstances fairly; to “recognize that the road 12 Charlie took was not entirely of his own choosing” and “was not one that he was free to 13 control in all respects”; that “he made some terrible decisions” and “did wrong”; and that 14 he would be “punished for that.” (Id. at 83-84.) Counsel concluded by stating: “But the 15 appropriate and the just punishment . . . is life in prison. It is not death.” (Id. at 84.) 16 “The right to effective assistance extends to closing arguments.” Yarborough v. 17 Gentry, 540 U.S. 1, 5 (2003). “Nonetheless, counsel has wide latitude in deciding how 18 best to represent a client, and deference to counsel’s tactical decisions in his closing 19 presentation is particularly important because of the broad range of legitimate defense 20 strategy at that stage.” Id. at 5-6. “Closing arguments should sharpen and clarify the issues 21 for resolution by the trier of fact, but which issues to sharpen and how best to clarify them 22 are questions with many reasonable answers.” Id. at 6 (citation omitted). “Judicial review 23 of a defense attorney’s summation is therefore highly deferential—and doubly deferential 24 when it is conducted through the lens of federal habeas.” Id. 25 Under this highly deferential review, and applying Gentry as clearly established 26 federal law, counsel did not perform ineffectively during his closing argument and the PCR 27 court was not objectively unreasonable in rejecting the claim that he did. Contrary to 28 Ellison’s arguments, counsel focused on the elements of Ellison’s “life story [that] led him

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1 to being on trial for murder.” (Doc. 21 at 270.) This was the “unifying theme,” Gentry, 2 540 U.S. at 6, throughout counsel’s summation—that emotional, physical, and sexual 3 abuse within the family, combined with the emotional and physical pain resulting from his 4 birth defect, contributed to Ellison’s alcohol and drug abuse, and all of these factors were 5 “piled on him whether he could carry them or not.” (RT 2/13/04 at 37.) Counsel 6 emphasized that although these circumstances, some of which were beyond his control, did 7 not absolve Ellison of responsibility, they were part of the “long, ugly, painful road” by 8 which Ellison “got to the back door of the Boucher home.” (Id. at 44.) 9 In Gentry, the Court observed that even where counsel omitted some 10 “unquestionably” supportive arguments, “it does not follow that counsel was incompetent 11 for failing to include them. Focusing on a small number of key points may be more 12 persuasive than a shotgun approach.” 540 U.S. at 7. In Ellison’s case, counsel did not omit 13 any supportive arguments in mitigation of the crimes. Smith v. Spisak, 558 U.S. 139, 155 14 (2010) (“Nor does Spisak tell us what other mitigating factors counsel might have 15 mentioned.”). 16 Ellison faults counsel for comments describing him as morally responsible for the 17 crimes, blameworthy, and deserving of punishment and as an addict and alcoholic who 18 made dumb, flawed decisions. (Doc. 21 at 271.) But in Gentry, the Court explained that 19 “confessing a client’s shortcomings . . . is precisely the sort of calculated risk that lies at 20 the heart of an advocate’s discretion. By candidly acknowledging his client’s 21 shortcomings, counsel might have built credibility with the jury and persuaded it to focus 22 on the relevant issues in the case.” 540 U.S. at 9. By the time of counsel’s closing 23 argument, Ellison had been convicted of two murders and the sentencing-stage jury had 24 just found six aggravating factors. Acknowledging responsibility for the crimes at that 25 point posed very little risk. Spisak, 558 U.S. at 155 (finding that “a less descriptive closing 26 argument with fewer disparaging comments about Spisak” would not have made a 27 “significant difference” where sentencing occurred immediately after guilt phase and the 28 gruesome facts of the crime were fresh in the jurors’ minds).

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1 Ellison also argues that counsel performed ineffectively by failing to object when 2 the prosecutor improperly suggested that the jury must find a causal connection between 3 the mitigating evidence and the crimes. (Doc. 21 at 271-72.) Although it is true that a jury 4 cannot be prevented from giving effect to mitigating evidence solely because it has no 5 causal nexus to the crime, see Tennard v. Dretke, 542 U.S. 274, 287 (2004), “the failure to 6 establish such a connection may be considered in assessing the quality and strength of the 7 mitigation evidence.” State v. Newell, 132 P.3d 833, 849 (2006); see also Ellison, 140 P.3d 8 at 927. In Ellison’s case, the prosecutor did not tell the jury it could consider only evidence 9 connected to the crime; rather, he spoke repeatedly about how much mitigating weight the 10 jury should assign to the evidence. (RT 2/13/04 at 48, 52, 55, 57, 60, 61.) Because those 11 comments were not improper, counsel did not perform ineffectively in failing to object. 12 As Ellison notes, there were instances in which the prosecutor arguably 13 mischaracterized the mitigation evidence—for example, by asking the jury whether the 14 mitigation evidence presented had “anything to do with these two murders” and by 15 suggesting that mitigation evidence consists of things like self-defense, jealousy, 16 retribution, or a drug deal gone bad. (RT 2/13/04 at 64–65.) Contrary to Ellison’s 17 argument, however, defense counsel did address the prosecutor’s comments. In his rebuttal 18 closing argument, counsel asked the jury to “disregard” the prosecutor’s misstatements, 19 which he characterized as an “interesting aside, but . . . not the law,” and to look instead to 20 the court’s instructions on mitigation, which counsel then repeated to the jury. (Id. at 80- 21 81.) 22 Counsel did not perform ineffectively in his mitigation-phase closing argument or 23 in his handling of the prosecutor’s closing argument. The PCR court reasonably applied 24 clearly established federal law in denying this claim. At a minimum, under AEDPA’s 25 doubly deferential standard, Ellison is not entitled to relief. 26 i. Subclaim 9: Prosecutor’s Statements About Finch 27 In subclaim 9 of Claim 45(C), Ellison alleges that counsel performed ineffectively 28 by failing to rebut or object to “the prosecutor’s misleading and improper statements

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1 regarding Finch.” (Doc. 21 at 272-73.) Ellison acknowledges that he did not raise this 2 claim in state court. (Id. at 273.) He argues the default is excused under Martinez by the 3 ineffective assistance of PCR counsel. (Id.) 4 During his closing argument, the prosecutor told the jury that “Mr. Finch did not 5 have any serious priors on his record” and was not on parole. (RT 2/13/04 at 62.) Ellison 6 claims these statements were “misleading” because Finch had “at least three” felony 7 convictions—possession of controlled substance, forgery, and possession of stolen 8 property—and because there was an open warrant for his arrest in Washington when he 9 was arrested for the crimes in this case. (Doc. 21 at 272-73.) 10 The prosecutor’s statements about Finch’s record were made in response to defense 11 counsel’s reminder to the jury that Finch received a life sentence. (RT 2/13/04 at 43, 62.) 12 The prosecutor was explaining the factors that distinguished Finch and Ellison, including, 13 as aggravating factors found by the jury, that Ellison had a prior “serious” felony, as 14 statutorily defined,51 and was on parole when he committed the murders. It was factually 15 accurate for the prosecutor to draw these distinctions between Ellison and Finch (who was 16 not on parole and whose prior convictions did not qualify as “serious” under Arizona law), 17 so Ellison’s counsel had no basis for objecting. 18 The underlying claim that trial counsel performed ineffectively is without merit. 19 Therefore, cause does not exist for the claim’s default. Runningeagle, 825 F.3d at 982. 20 The claim is thus barred from federal review. 21 j. Subclaim 10: Ellison’s Parole Ineligibility 22 The trial court instructed the jury that Ellison faced two sentences, death or life 23 imprisonment, with life imprisonment meaning either natural life or life with the possibility 24 of release after 25 years. (RT 2/4/04 at 41.) In subclaim 9 of Claim 45(C), Ellison relies 25 on Lynch v. Arizona, 578 U.S. 613 (2016) (per curiam), to allege that counsel performed 26 ineffectively by failing to inform the jury that he would not have been eligible for parole if 27 28 51 Under A.R.S. §13-703(H)(1)(h), armed robbery met the definition of a “serious felony” for aggravation purposes. Ellison, 140 P.3d at 927.

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1 sentenced to life. (Doc. 21 at 273-75.) Ellison acknowledges he did not raise this claim in 2 state court. (Id. at 275.) He argues its default is excused by the ineffective assistance of 3 PCR counsel. (Id.) Martinez does not provide cause to excuse the procedural default 4 because, as set forth below, the claim is plainly meritless. 5 In Simmons v. South Carolina, 512 U.S. 154 (1994), the Supreme Court held that 6 when a capital defendant’s future dangerousness is at issue and state law prohibits his 7 release on parole, he has a due process right to inform the jurors of his parole ineligibility. 8 Until 2012, Arizona law permitted imposition of a parole-eligible life sentence for 9 defendants convicted of first-degree murder. See A.R.S. § 13-703(A)(2000), renumbered 10 as A.R.S. § 13-751(A). In 1994, however, Arizona effectively abolished parole for all 11 inmates convicted of felonies. See A.R.S. § 41-1604.09(I). Accordingly, at the time of 12 Ellison’s sentencing, Arizona defendants facing death sentences were statutorily eligible 13 to receive life-with-parole sentences but, as a practical matter, could not be paroled. 14 Critically, at that time, the Arizona Supreme Court had yet not considered 15 Simmons’s applicability to Arizona’s capital jury-sentencing process in light of § 41- 16 1604.09(I). However, in 2008, the Arizona Supreme Court rejected an argument that 17 Simmons required a trial court to “presentence” a defendant by deciding before trial 18 whether it would impose a parole-eligible life sentence and instruct the jury accordingly. 19 State v. Cruz, 181 P.3d 196, 207 (Ariz. 2008). The court reasoned that Simmons did not 20 require reversal because “[n]o state law would have prohibited [the defendant’s] release on 21 parole after serving twenty-five years, had he been given a life sentence.” Id. (citing A.R.S. 22 § 13-703(A) (2004)). In later years, the Arizona Supreme Court reaffirmed that Simmons 23 did not apply in Arizona because a defendant facing a death sentence was eligible to receive 24 a life sentence with the possibility of parole under A.R.S. § 13-751(A). See, e.g., State v. 25 Lynch, 357 P.3d 119, 138–39 (Ariz. 2015). 26 One year after the Arizona Supreme Court’s decision in Lynch—and 12 years after 27 Ellison’s sentencing—the United States Supreme Court overruled the Arizona Supreme 28 Court’s precedent, holding that Arizona courts had incorrectly interpreted Simmons.

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1 Lynch, 578 U.S. at 614-16. The Court concluded, based on § 41-1604.09(I), that an 2 Arizona capital defendant is ineligible for parole within Simmons’s meaning. Id. The 3 Court thus held that, when future dangerousness is at issue, an Arizona capital defendant 4 has the “right to inform his jury of that fact [parole-ineligibility].” Id. at 616. 5 Despite this change in the law, Ellison has not met his burden of showing that 6 counsel performed deficiently by failing to object to or correct the court’s instruction. At 7 the time of Ellison’s sentencing, A.R.S. § 13-751(A) expressly provided for a parole- 8 eligible life sentence and neither the Arizona Supreme Court nor the United States Supreme 9 Court had addressed how Simmons, § 41-1604.09(I), and § 13-751(A) interacted. Given 10 that backdrop, reasonable counsel could have concluded that Ellison was in fact parole- 11 eligible (and, therefore, there were no grounds for an objection). Indeed, in a series of 12 decisions issued between 2008 and 2015, the Arizona Supreme Court reached that very 13 conclusion, which establishes that reasonable counsel in 2004 could have reached the same 14 conclusion, too. See, e.g., Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994) (“Lowry’s 15 lawyer cannot be required to anticipate our decision in this later case, because his conduct 16 must be evaluated for purposes of the performance standard of Strickland as of the time of 17 counsel’s conduct”) (citation omitted); Gerard v. Gootkin, 856 F. App’x 645, 646-47 (9th 18 Cir. 2021) (“Lacey's counsel cannot be found ineffective for failing to argue a theory that 19 had not been developed at the time of adjudication. Lawyers are not required to anticipate 20 future changes in the law, but rather under Strickland are evaluated as of the time of their 21 conduct. The failure to predict future changes in the law cannot be considered ineffective 22 assistance.”) (cleaned up); May v. Ryan, 807 F. App’x 632, 634-35 (9th Cir. 2020) (“Given 23 the long-standing Arizona rule . . . which provided the background for the prevailing 24 professional practice at the time of the trial, we cannot conclude that trial counsel’s failure 25 to object to the constitutionality of the statute[] . . . fell below an objective standard of 26 reasonableness”) (citations omitted); Brown v. United States, 311 F.3d 875, 878 (8th Cir. 27 2002) (“Brown . . . argues that his counsel’s failure to have made an Apprendi-type 28 argument prior to the Apprendi decision constituted ineffective assistance of counsel. We

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1 reject Brown’s argument. Instead, we hold that his counsel’s decision not to raise an issue 2 unsupported by then-existing precedent did not constitute ineffective assistance.”). See 3 also Lewis v. Thornell, 2024 WL 909810, *1 (9th Cir. 2024) (“At the time the state post- 4 conviction petition was filed, there was widespread confusion about the availability of 5 parole for first degree murder in Arizona, and an Arizona Supreme Court case, later 6 disapproved, stated that parole for first degree murder was available. The practice of 7 lawyers and judges often assumed the availability of parole, and many defendants had been 8 given sentences that included the possibility of parole despite the statute abolishing parole. 9 . . . Given those circumstances, it was reasonable for Lewis’s post-conviction counsel not 10 to raise a claim of ineffective assistance of counsel related to Lewis’s illegally lenient 11 sentence.”). For the same reason, there is no support for the proposition that the trial court 12 would have granted an objection to the instruction. 13 Because the underlying claim of trial-counsel ineffectiveness is without merit, cause 14 does not exist for the claim’s default. Runningeagle, 825 F.3d at 982. The claim therefore 15 remains barred from federal review. 16 III. Systemic Challenges 17 Ellison raises a number of challenges to Arizona’s death penalty scheme and to 18 capital punishment in general. Most of these clams were raised on direct appeal and 19 summarily rejected by the Arizona Supreme Court, which pointed to its previous decisions 20 denying similar claims. Ellison, 140 P.3d at 929. Ellison argues that AEDPA deference is 21 inapplicable because the Arizona Supreme Court did not address the claims on the merits 22 “but only presented the issues in its appendix.” (See, e.g., Doc. 21 at 169.) This is 23 incorrect. “Where a state court’s decision is unaccompanied by an explanation, the habeas 24 petitioner’s burden still must be met by showing there was no reasonable basis for the state 25 court to deny relief.” Richter, 562 U.S. at 98 (“There is no merit to the assertion that 26 compliance with § 2254(d) should be excused when state courts issue summary rulings 27 . . . .”). 28 …

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1 A. Claim 30 2 In Claim 30, Ellison alleges that capital punishment is categorically cruel and 3 unusual, in violation of the Eighth and Fourteenth Amendments. (Doc. 21 at 169-73.) 4 However, he does not indicate how the Arizona Supreme Court’s denial of this claim 5 conflicts with or unreasonably applies clearly established federal law. Supreme Court 6 precedent holds that the death penalty does not constitute cruel and unusual punishment. 7 Gregg v. Georgia, 428 U.S. 153, 169 (1976); Glossip v. Gross, 576 U.S. 863, 881 (2015) 8 (“[W]e have time and again reaffirmed that capital punishment is not per se 9 unconstitutional.”). 10 B. Claim 31 11 In Claim 31, Ellison alleges that execution by lethal injection is cruel and unusual 12 punishment under the Eighth and Fourteenth Amendments. (Doc. 21 at 173-81.) 13 The Arizona Supreme Court’s denial of this claim was not contrary to or an 14 unreasonable application of clearly established federal law. See, e.g., Baze v. Rees, 553 15 U.S. 35 (2008) (“This Court has never invalidated a State’s chosen procedure for carrying 16 out a sentence of death as the infliction of cruel and unusual punishment.”). Neither the 17 United State Supreme Court nor the Ninth Circuit has concluded that Arizona’s lethal 18 injection protocols violate the Eighth Amendment. Dickens v. Brewer, 631 F.3d 1139 (9th 19 Cir. 2011). 20 Ellison also raises allegations that focus on Arizona’s particular lethal injection 21 protocols and history. But Ellison may bring a protocol-related challenge in a separate 22 civil rights action under 42 U.S.C. § 1983. Hill v. McDonough, 547 U.S. 573, 579-80 23 (2006); Nance v. Ward, 142 S. Ct. 2214, 2223 (2022). 24 C. Claim 32 25 In Claim 32, Ellison alleges that Arizona’s capital-sentencing scheme violates the 26 Eighth and Fourteenth Amendments because it requires a death sentence when the jury 27 finds one aggravating circumstance and no mitigating circumstances. (Doc. 21 at 181-82.) 28 The Arizona Supreme Court’s denial of the claim was neither contrary to nor an

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1 unreasonable application of clearly established federal law. 2 Arizona’s death penalty scheme allows certain, statutorily defined aggravating 3 factors to be considered in determining eligibility for the death penalty. For death to be an 4 appropriate sentence, at least one aggravating factor must be found and the sentencer must 5 determine that the mitigating circumstances do not warrant a lesser sentence. This scheme 6 has been found constitutionally sufficient. Jeffers, 497 U.S. at 774-77; Walton, 497 U.S. 7 at 649-56; Woratzeck, 97 F.3d at 334-35; Smith, 140 F.3d at 1272. 8 D. Claim 33 9 In Claim 33, Ellison alleges that Arizona’s capital-sentencing scheme violates the 10 Eighth and Fourteenth Amendments because it creates a presumption that death is the 11 appropriate sentence and requires a defendant to affirmatively prove that the jury should 12 spare his life. (Doc. 21 at 182-84.) The Arizona Supreme Court’s denial of the claim was 13 neither contrary to nor an unreasonable application of clearly established federal law. 14 The United States Supreme Court has rejected the claim that Arizona’s capital- 15 sentencing scheme is impermissibly mandatory and creates a presumption in favor of the 16 death penalty. Walton, 497 U.S. at 651-52; see also Smith, 140 F.3d at 1272. 17 E. Claim 34 18 In Claim 34, Ellison alleges that Arizona’s capital-sentencing scheme violates the 19 Fifth, Sixth, Eighth, and Fourteenth Amendments because it does not require the State to 20 prove beyond a reasonable doubt that the death penalty is the appropriate sentence. (Doc. 21 21 at 184-88.) The Arizona Supreme Court’s denial of this claim was neither contrary to 22 nor an unreasonable application of clearly established federal law. 23 The Constitution does not require a death penalty statute to set forth specific 24 standards for a capital sentencer to follow when considering aggravating and mitigating 25 circumstances. Zant, 462 U.S. at 875 n.13 (explaining that “specific standards for 26 balancing aggravating against mitigating circumstances are not constitutionally required”); 27 Tuilaepa v. California, 512 U.S. 967, 979-80 (1994) (“A capital sentencer need not be 28 instructed how to weigh any particular fact in the capital sentencing decision.”). In Kansas

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1 v. Marsh, the Supreme Court explained: 2 In aggregate, our precedents confer upon defendants the right to present sentencers with information relevant to the sentencing decision and oblige 3 sentencers to consider that information in determining the appropriate 4 sentence. The thrust of our mitigation jurisprudence ends here. “[W]e have never held that a specific method for balancing mitigating and aggravating 5 factors in a capital sentencing proceeding is constitutionally required.” 6 548 U.S. at 175 (quoting Franklin v. Lynaugh, 487 U.S. 164, 179 (1988)). 7 Thus, the Constitution does not require the capital sentencer to find that the 8 aggravating circumstances outweigh mitigating circumstances beyond a reasonable doubt. 9 Smith, 140 F.3d at 1272 (rejecting claim based on failure to apply beyond a reasonable 10 doubt standard at sentencing); Williams, 52 F.3d at 1485 (“[T]he failure of the statute to 11 require a specific finding that death is beyond a reasonable doubt the appropriate penalty 12 does not render it unconstitutional.”); McGill v. Ryan, 2019 WL 160732, *28 (D. Ariz. 13 2019) (“There is no Supreme Court authority requiring a jury to be instructed on a burden 14 of proof in the sentencing phase of a capital case.”). 15 Ellison argues that Hurst v. Florida, 577 U.S. 92 (2016), establishes the 16 unconstitutionality of Arizona’s capital-sentencing scheme. (Doc. 21 at 185-86.) This 17 argument fails. First, Hurst was not clearly established federal law at the time the Arizona 18 Supreme Court reviewed Ellison’s death sentence. Underwood v. Royal, 894 F.3d 1154, 19 1186 (10th Cir. 2018) (“Hurst post-dates the [Oklahoma Court of Criminal Appeals’] 20 decision and thus cannot serve as clearly established federal law for purposes of our review 21 under AEDPA.”). See also McKinney v. Arizona, 140 S. Ct. 702, 708 (2020) 22 (“Hurst do[es] not apply retroactively on collateral review.”); Ybarra v. Filson, 869 F.3d 23 1016, 1032-33 (9th Cir. 2017) (“Hurst does not apply retroactively”). 24 Second, even if Hurst were clearly established law for purposes of this claim, 25 Ellison would not be entitled to relief. “Hurst held only that Florida’s scheme, in which 26 the jury rendered an advisory sentence but the judge made the findings regarding 27 aggravating and mitigating factors, violated the Sixth Amendment. Hurst did not address 28 the process of weighing aggravating and mitigating circumstances and made no holding

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1 regarding the determination that the mitigators do not outweigh the aggravators.” Speer v. 2 Thornell, 2023 WL 2503733, *81 (D. Ariz. 2023) (cleaned up). 3 F. Claim 35 4 In Claim 35, Ellison alleges that Arizona’s capital-sentencing scheme violates the 5 Eighth and Fourteenth Amendments because it is overbroad, does not genuinely narrow 6 the murder cases eligible for the death penalty, and thereby fails to guide the sentencing 7 jury. (Doc. 21 at 188-91.) The Arizona Supreme Court’s denial of this claim was neither 8 contrary to nor an unreasonable application of clearly established federal law (and the claim 9 is, at any rate, meritless). 10 Again, the United States Supreme Court and the Ninth Circuit have upheld 11 Arizona’s capital-sentencing scheme against allegations that particular aggravating factors 12 do not adequately narrow the sentencer’s discretion. Jeffers, 497 U.S. at 774-77; Walton, 13 497 U.S. at 649-56; Woratzeck, 97 F.3d at 335. The Ninth Circuit has also explicitly 14 rejected the contention that Arizona’s capital-sentencing scheme is unconstitutional 15 because it “does not properly narrow the class of death penalty recipients.” Smith, 140 16 F.3d at 1272. 17 G. Claim 36 18 In Claim 36, Ellison alleges that Arizona’s capital-sentencing scheme violates the 19 Eighth and Fourteenth Amendments because it does not set forth objective standards to 20 guide the jury in weighing the aggravating factors against the mitigating circumstances. 21 (Doc. 21 at 192.) The Arizona Supreme Court’s denial of this claim was neither contrary 22 to nor an unreasonable application of clearly established federal law (and the claim is, at 23 any rate, meritless). 24 The Supreme Court has held that in a capital case “the sentencer may be given 25 unbridled discretion in determining whether the death penalty should be imposed after it 26 has found that the defendant is a member of the class made eligible for that penalty.” 27 Tuilaepa, 512 U.S. at 979-80 (citation omitted). Additionally, the Supreme Court has 28 “never held that a specific method for balancing mitigating and aggravating factors in a

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1 capital sentencing proceeding is constitutionally required.” Franklin, 487 U.S. at 179. 2 H. Claim 37 3 In Claim 37, Ellison alleges that Arizona’s capital-sentencing scheme limits the 4 jury’s full consideration of mitigation evidence by requiring that mitigating circumstances 5 be proved by a preponderance of the evidence, in violation of the Eighth and Fourteenth 6 Amendments. (Doc. 21 at 193-94.) The Arizona Supreme Court’s denial of this claim was 7 neither contrary to nor an unreasonable application of clearly established federal law (and 8 the claim is, at any rate, meritless). 9 The Supreme Court has specifically rejected the argument that the Arizona capital- 10 sentencing scheme is unconstitutional because it imposes on defendants the burden of 11 establishing, by a preponderance of the evidence, the existence of mitigating circumstances 12 sufficiently substantial to call for leniency. Walton, 497 U.S. at 649-51. The Court has 13 subsequently reaffirmed that the reasoning in Walton still controls regarding burdens of 14 persuasion. Marsh, 548 U.S. at 173 (“a state death penalty statute may place the burden 15 on the defendant to prove that mitigating circumstances outweigh aggravating 16 circumstances”). Once the state has carried its burden of establishing death eligibility, “it 17 [does] not offend the Constitution to put the burden on [defendant] to prove any mitigating 18 factor by a preponderance of the evidence.” Mitchell, 502 F.3d at 993 (citations omitted). 19 I. Claim 38 20 In Claim 38, Ellison alleges that Arizona’s capital-sentencing scheme violates the 21 Eighth and Fourteenth Amendments because it affords the prosecutor unlimited discretion 22 to seek the death penalty. (Doc. 21 at 194-96.) The Arizona Supreme Court’s denial of 23 this claim was neither contrary to nor an unreasonable application of clearly established 24 federal law. 25 The Supreme Court has held that prosecutors have wide discretion in deciding 26 whether to seek the death penalty. McCleskey v. Kemp, 481 U.S. 279, 296-97 (1987); 27 Gregg, 428 U.S. at 199. In Smith, the Ninth Circuit rejected the argument that Arizona’s 28 capital-sentencing scheme is constitutionally infirm because “the prosecutor can decide

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1 whether to seek the death penalty.” 140 F.3d at 1272. 2 J. Claim 39 3 In Claim 39, Ellison alleges that Arizona’s capital-sentencing scheme discriminates 4 against indigent male defendants whose victims are white. (Doc. 21 at 196-97.) The 5 Arizona Supreme Court’s denial of this claim was neither contrary to nor an unreasonable 6 application of clearly established federal law. 7 Clearly established federal law holds that “a defendant who alleges an equal 8 protection violation has the burden of proving ‘the existence of purposeful discrimination’” 9 and must demonstrate that such discrimination “had a discriminatory effect” on him. 10 McCleskey, 481 U.S. at 292 (quoting Whitus v. Georgia, 385 U.S. 545, 550 (1967)). 11 Therefore, to prevail on this claim, Ellison “must prove that the decisionmakers in his case 12 acted with discriminatory purpose.” Id. 13 Ellison does not attempt to meet that burden. He offers no evidence specific to his 14 case that would support an inference that his sex, race, economic status, or the race of his 15 victims played a part in his sentence. Richmond v. Lewis, 948 F.2d 1473, 1490-91 (1990), 16 vacated on other grounds, 986 F.2d 1583 (9th Cir. 1993) (statistical evidence is insufficient 17 to prove that decisionmakers in petitioner’s case acted with discriminatory purpose). 18 K. Claim 40 19 In Claim 40, Ellison alleges that Arizona’s capital-sentencing scheme violates the 20 Fifth, Eighth, and Fourteenth Amendments because it precludes proportionality review of 21 capital sentences. (Doc. 21 at 197-99.) The Arizona Supreme Court’s denial of this claim 22 was neither contrary to nor an unreasonable application of clearly established federal law. 23 There is no federal constitutional right to proportionality review of a death sentence. 24 McCleskey, 481 U.S. at 306 (“[W]here the statutory procedures adequately channel the 25 sentencer’s discretion, such proportionality review is not constitutionally required.”). The 26 Ninth Circuit has explained that the “substantive right to be free from a disproportionate 27 sentence” is protected by the application of “adequately narrowed aggravating 28 circumstance[s].” Ceja, 97 F.3d at 1252.

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1 L. Claim 41 2 In Claim 41, Ellison cites various dissenting opinions in support of his allegation 3 that the death penalty violates his rights under the Eighth and Fourteenth Amendments 4 because it is irrationally and arbitrarily imposed, with no meaningful distinction between 5 those who receive sentences of death and those who are sentenced to life imprisonment. 6 (Doc. 21 at 199-200.) The Arizona Supreme Court’s denial of this claim was neither 7 contrary to nor an unreasonable application of clearly established federal law. See, e.g., 8 Walton, 497 U.S. at 655-56; Smith, 140 F.3d at 1272. Ellison “simply fails to provide any 9 clearly established authority in support of his contention.” Roybal v. Davis, 148 F. Supp. 10 3d 958, 1111 (S.D. Cal. 2015). 11 M. Claim 42 12 In Claim 42, Ellison alleges that the trial court violated the Ex Post Facto Clause by 13 sentencing him under Arizona’s post-Ring capital-sentencing statute. (Doc. 21 at 200-03.) 14 The Arizona Supreme Court’s denial of this claim was neither contrary to nor an 15 unreasonable application of clearly established federal law. 16 Ellison committed the murders in February 1999. He was convicted in January 17 2002. On June 24, 2002, the United States Supreme Court invalidated Arizona’s then- 18 applicable death penalty scheme, under which judges rather than juries found the facts 19 making a defendant eligible for the death penalty. Ring II, 536 U.S. at 609. On June 26, 20 2002, the trial court continued Ellison’s sentencing indefinitely. On August 1, 2002, the 21 Arizona legislature amended the state’s death penalty statute to comply with Ring II. A 22 jury sentenced Ellison to death in 2004. Ellison argues that because there was no death 23 penalty in effect between June 24 and August 1, 2002, “[t]he trial court’s application of the 24 newly enacted death-penalty statute to Ellison’s case violated the prohibition on the 25 retroactive application of substantive changes in the law.” (Doc. 21 at 201.) 26 In denying this claim, the Arizona Supreme Court cited its opinion in Ring III 27 holding that the Ex Post Facto Clause did not prohibit the resentencing of capital 28 defendants after Ring II because the new statute only enacted procedural changes and did

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1 not place defendants in jeopardy of a greater punishment. Ellison, 140 P.3d at 929 (citing 2 Ring III, 65 P.3d at 926-28). This determination was neither contrary to nor an 3 unreasonable application of clearly established federal law. 4 The Ex Post Facto Clause prohibits a state from “retroactively alter[ing] the 5 definitions of crimes or increas[ing] the punishment for criminal acts.” Collins v. 6 Youngblood, 497 U.S. 37, 43 (1990). “[A]ny statute which punishes as a crime an act 7 previously committed, which was innocent when done; which makes more burdensome the 8 punishment for a crime, after its commission, or which deprives one charged with a crime 9 of any defense available according to law at the time when the act was committed, is 10 prohibited as ex post facto.” Dobbert, 432 U.S. at 292 (citation omitted). 11 In Dobbert, the petitioner’s “ex post facto claim [was] based on the contention that 12 at the time he murdered his children there was no death penalty ‘in effect’ in Florida. This 13 is so, he contends, because the earlier statute enacted by the legislature was, after the time 14 he acted, found by the Supreme Court of Florida to be invalid . . . . Therefore, argues 15 petitioner, there was no ‘valid’ death penalty in effect in Florida as of the date of his 16 actions.” Id. at 287. The Supreme Court rejected this “sophistic” “and “highly technical” 17 argument,” which “mocks the substance of the Ex Post Facto Clause,” and clarified that 18 the changes in Florida’s statute were “clearly procedural” and “simply altered the methods 19 employed in determining whether the death penalty was to be imposed; there was no 20 change in the quantum of punishment attached to the crime.” Id. at 293-94, 297. So, too, 21 here. Although Ring II invalidated the procedure by which the death penalty was imposed 22 in Arizona, it did not eliminate the death penalty as a possible sentence for first-degree 23 murder. See, e.g., Schriro v. Summerlin, 542 U.S. 348, 353-54 (2004) (“Ring’s holding is 24 properly classified as procedural.”); McGill, 16 F.4th at 703-04. 25 N. Claim 43 26 In Claim 43, Ellison alleges that imposing the death penalty on a person diagnosed 27 with FASD violates the Eighth and Fourteenth Amendments. (Doc. 21 at 203-08.) The 28 PCR court denied this claim, finding it was supported by “no legal authority.” (PCR

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1 Ruling, 7/16/12 at 6.) That decision was neither contrary to nor an unreasonable 2 application of clearly established federal law, nor was it factually unreasonable. 3 Ellison argues that “the impairments associated with FASD mirror in critical ways 4 those suffered by intellectually disabled offenders.” (Doc. 21 at 205.) But as the PCR 5 court correctly noted, there is no authority—let alone clearly establish federal authority— 6 holding that individuals with FASD are exempt from capital punishment. In re Soliz, 938 7 F.3d 200, 203 (5th Cir. 2019) (inmate failed to show that FASD “is now medically equated 8 to intellectual disability as defined in Atkins”); United States v. Fell, 2016 WL 11550800, 9 *7 (D. Vt. 2016) (“Fell has not shown that all persons with FASD . . . have cognitive and 10 behavioral impairments that result in the same (or ‘equivalent’) diminishment in moral 11 culpability, ability to be deterred, and capacity to assist in their defense as individuals with 12 [intellectual disability]”); Garza, 2021 WL 5850883 at *105 (“There is no authority 13 holding that individuals with FASD are exempt from capital punishment.”). In addition, 14 Ellison has not shown that he is an intellectually disabled offender. As noted in earlier 15 portions of this order, Ellison’s IQ was measured at 100 when he was in high school and 16 was measured at 89 by Dr. Connor. 17 O. Claim 44 18 In Claim 44, Ellison alleges that he will be denied a fair clemency process, in 19 violation of the Eighth and Fourteenth Amendments. (Doc. 21 at 208-10.) 20 This claim is unexhausted and is not, at any rate, cognizable on federal habeas 21 review. Habeas relief may only be granted on claims that a prisoner “is in custody in 22 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). 23 Ellison’s challenge to state clemency procedures and proceedings does not represent an 24 attack on his detention and thus does not constitute a proper ground for relief. Franzen v. 25 Brinkman, 877 F.2d 26, 26 (9th Cir. 1989) (per curiam); Woratzeck, 118 F.3d at 653. 26 P. Claim 46 27 In Claim 46, Ellison alleges that appellate counsel performed ineffectively by failing 28 to raise “several meritorious issues that had a reasonable probability of prevailing.” (Doc.

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1 21 at 288-93.) Ellison raised these allegations during his PCR proceedings. (PCR Pet. at 2 36, 57, 69, 84.) The PCR court denied Ellison’s overarching claim of ineffective assistance 3 without explicitly addressing his claims regarding appellate counsel. (PCR Ruling, 7/16/12 4 at 5-6.) The PCR did state, however, that “[w]hether specifically referred to or not in this 5 minute entry ruling, this court has considered all of the claims presented by Ellison in his 6 Petition for Post-Conviction Relief” and determined that only two were colorable. (Id. at 7 6.) Because the state court denied these claims on the merits, this Court applies § 2254(d) 8 to Ellison’s allegations of ineffective assistance of appellate counsel. Richter, 562 U.S. at 9 98. 10 The Fourteenth Amendment guarantees a criminal defendant the right to effective 11 assistance of counsel on his first appeal. Evitts v. Lucey, 469 U.S. 387, 396 (1985). To 12 prevail on a claim of ineffective assistance of appellate counsel, a petitioner must show 13 that counsel’s appellate advocacy fell below an objective standard of reasonableness and a 14 reasonable probability that, but for counsel’s deficient performance, the petitioner would 15 have prevailed on appeal. Smith v. Robbins, 528 U.S. 259, 285-86 (2000). Thus, “[a] 16 failure to raise untenable issues on appeal does not fall below the Strickland standard.” 17 Turner v. Calderon, 281 F.3d 851, 872 (9th Cir. 2002). Nor does appellate counsel have a 18 constitutional duty to raise every nonfrivolous issue requested by a petitioner. Miller v. 19 Keeney, 882 F.2d 1428, 1434 n.10 (9th Cir. 1989) (citing Jones v. Barnes, 463 U.S. 745, 20 751-54 (1983)). See also Davila, 582 U.S. at 533 (“Declining to raise a claim on appeal 21 . . . is not deficient performance unless that claim was plainly stronger than those actually 22 presented to the appellate court.”). 23 Ellison first alleges that appellate counsel performed ineffectively “because he 24 failed to challenge the trial court’s refusal to authorize the defense to hire James Aiken,” 25 the prison-management expert. (Doc. 21 at 290.) As discussed, the PCR court found that 26 trial counsel’s failure to call a prison expert to opine that Ellison was not violent and posed 27 no danger to society was a matter “clearly related to decisions of trial strategy.” (PCR 28 Ruling. 7/16/12 at 5.) The PCR court further noted that “strong evidence to the contrary

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1 existed in the Arizona Department of Corrections’ records.” (Id.) The PCR court did not 2 explicitly address appellate counsel’s performance or the trial court’s denial of funding for 3 Aiken. 4 Ellison has not shown that the PCR court’s denial of this claim was contrary to or 5 an unreasonable application of clearly established federal law or based on an unreasonable 6 determination of the facts. A claim that the trial court erred in not approving funding for 7 Aiken was not “plainly stronger” than the other claims raised on appeal. Davila, 582 U.S. 8 at 533. Additionally, the trial court did not preclude Ellison from presenting other evidence 9 or argument during the penalty phase showing that he could be safely housed, and evidence 10 of good behavior in prison, even if it existed in Ellison’s case, is entitled to little mitigating 11 value. Thus, there was no reasonable probability of success on appeal if this claim had 12 been raised. Smith, 528 U.S. at 285-86. 13 Next, Ellison alleges that appellate counsel performed ineffectively by failing to 14 challenge two of the jury instructions: (1) the sentencing-phase “sufficiently substantial to 15 call for leniency” instruction; and (2) the guilt-phase premeditation instruction. (Doc. 21 16 at 290-92.) These claims are meritless. 17 During the sentencing phase, the jury was instructed that “[i]f your decision is that 18 the mitigating circumstance or circumstances are not sufficiently substantial to call for 19 leniency, then your verdict shall be that the defendant is sentenced to death.” (RT 2/13/04 20 at 19-20.) According to Ellison, this instruction, with its use of “shall,” “misleadingly 21 created a presumption of death” and therefore appellate counsel should have raised a claim 22 challenging it. (Doc. 21 at 291.) In support of this argument, Ellison cites State ex rel. 23 Thomas v. Granville, 123 P.3d 662 (Ariz. 2005), which held that “the defendant in a capital 24 case does not bear the burden to prove by a preponderance of the evidence that the 25 mitigating circumstances are sufficiently substantial to call for leniency.” Id. at 668. 26 Ellison is not entitled to habeas relief on this basis. The instruction in Ellison’s case 27 did not impose a burden on him to prove that the mitigating circumstances were sufficiently 28 substantial to warrant leniency. In addition, following its decision in Granville, the

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1 Arizona Supreme Court’s “subsequent cases have held that the jury can properly be told 2 that if it concludes that there is no mitigation or the mitigation is not sufficiently substantial 3 to call for leniency, a death verdict should result.” State v. Martinez, 189 P.3d 348, 360 4 (Ariz. 2008). Therefore, the trial court’s use of “shall” was not inappropriate. See also 5 State v. Velazquez, 166 P.3d 91, 101 (Ariz. 2007) (rejecting claim that “a presumption of 6 death was created when the jury was instructed ‘[I]f you unanimously find that the 7 mitigation is not sufficiently substantial to call for leniency, you must return a verdict of 8 death.’”). Appellate counsel’s failure to raise this “untenable” challenge to the jury 9 instruction did not constitute ineffective assistance. Turner, 281 F.3d at 872; Smith, 528 10 U.S. at 285-86. 11 Turning to the guilt-phase premeditation instruction, the jury was instructed that: 12 Premeditation means that the defendant acts with either the intention or the 13 knowledge that he will kill another human being when such intention or knowledge precedes the killing by any length of time to permit reflection. It 14 is this period of time to permit reflection that distinguishes first-degree 15 murder from intentional or knowing second-degree murder. An act is not done with premeditation if it is the instant effect of a sudden quarrel or heat 16 of passion. 17 (RT 1/18/02 at 10.) 18 Ellison relies on State v. Thompson, 65 P.3d 420 (Ariz. 2003), for his argument that 19 this instruction was “incorrect and misleading.” (Doc. 21 at 291-92.) In Thompson, the 20 Arizona Supreme Court held that premeditation requires actual reflection and not the mere 21 passage of time. 65 P.3d at 428. The court therefore disapproved of the phrase “proof of 22 actual reflection is not required” and discouraged use of the phrase “as instantaneous as 23 successive thoughts of the mind,” both of which had previously been used in jury 24 instructions. Id. However, neither phrase was present in Ellison’s instruction. Indeed, in 25 Kiles, the Arizona Supreme Court found that “no error occurred” when the jury was 26 provided with a premeditation instruction indistinguishable from the one given in Ellison’s 27 case. 213 P.3d at 180 (“The superior court gave the following instruction about 28 premeditation: ‘Premeditation means the defendant acts with the knowledge that he will

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1 kill another human being, when such intention or knowledge precedes the killing by a 2 length of time to permit reflection. An act is not done with premeditation if it is the instant 3 effect of a sudden quarrel or heat of passion.’”). Ellison’s appellate counsel did not perform 4 ineffectively by failing to raise the instruction challenge rejected in Kiles. Turner, 281 5 F.3d at 872; Smith, 528 U.S. at 285-86. 6 Finally, Ellison alleges that appellate counsel performed ineffectively by failing to 7 challenge the improper Miranda warnings given by Detective Watson, specifically 8 Watson’s statement: “You also have the right to refuse to answer any questions at any time 9 if you decide to do so. And like what that last one means is if I ask you something too 10 personal about your sex life, you don’t have to answer it just because I’m a cop.” (Doc. 21 11 at 292-93.) The PCR court rejected the claim without explanation. (PCR Ruling, 7/16/12 12 at 6.) 13 This claim was not “plainly stronger” than the other claims raised on appeal. Davila, 14 582 U.S. at 533. Appellate counsel raised a Miranda claim premised on Ellison’s alleged 15 invocation of the right to counsel. (Opening Br. at 18-25.) A separate Miranda challenge 16 premised on the “personal” questions verbiage was not tenable where Watson properly 17 recited the four Miranda warnings, including the right to remain silent, and where Ellison 18 was admittedly familiar with the warning and understood his rights. Turner, 281 F.3d at 19 872; Smith, 528 U.S. at 285-86. 20 Q. Claim 48 21 In Claim 48,52 Ellison alleges that his execution would violate the Eighth and 22 Fourteenth Amendments because he “suffers from serious mental illness that includes 23 hallucinations paranoia, depression . . . along with neurological impairments indicative of 24 FASD.” (Doc. 21 at 293-305.) Ellison acknowledges he did not raise this claim in state 25 court but contends he can overcome the claim’s default because “not reviewing the claim 26 would lead to a fundamental miscarriage of justice.” (Id. at 293.) He also contends the 27 52 28 This order skips from Claim 46 to Claim 48 because Ellison withdrew Claim 47. (Doc. 21 at 293.) Ellison also withdrew Claims 50, 51, and 53. (Id. at 308, 321.)

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1 default is excused by the ineffective assistance of PCR counsel. (Id. at 293-94.) 2 Regardless of the claim’s procedural status, it is without merit. In Ford v. 3 Wainwright, 477 U.S. 399 (1986), the Supreme Court held that it is a violation of the Eighth 4 Amendment to execute someone who cannot comprehend that his execution is based on a 5 conviction for murder. Id. at 409-10. But Ellison does not contend that he is incompetent 6 to be executed under Ford, only that he has serious mental illness. See, e.g., ShisInday v. 7 Quarterman, 511 F.3d 514, 521 (5th Cir. 2007) (petitioner’s execution not prohibited 8 where he contended he was mentally ill, not insane). 9 Ellison also argues that the reasoning in Ford, along with Atkins v. Virginia, 536 10 U.S. 304 (2002), which barred the execution of the intellectually disabled, and Roper v. 11 Simmons, 543 U.S. 551 (2005), which placed a categorical ban on the execution of persons 12 under the age of 18, should be extended to defendants who suffer from mental illness or 13 neurological impairment. (Doc. 21 at 294-95.) But Ellison offers no authoritative support 14 for such an extension. Carroll v. Sec’y, DOC, 574 F.3d 1354, 1370 (11th Cir. 2009) 15 (“[S]ans a decision from the Supreme Court barring the execution of mentally ill prisoners, 16 we reject Carroll’s claim that he is exempt from execution because he is mentally ill.”); 17 Rangel v. Broomfield, 2023 WL 5417888, *97 (E.D. Cal. 2023) (“[N]either the Supreme 18 Court nor this circuit has extended the Atkins/Roper protections to the mentally ill whose 19 illness does not reach that of incompetency or insanity.”); Doerr v. Ryan, 2010 WL 582198, 20 *3 (D. Ariz. 2010) (“[T]he authorities that have considered the scope of Atkins have all 21 rejected the proposition that the Eighth Amendment prohibits execution of the mentally 22 ill.”). “Although petitioner’s references to international law, public opinion data, and 23 various other reports and studies are instructive, this Court must follow Supreme Court 24 authority.” Garza, 2021 WL 5850883 at *106 (citation omitted). 25 Finally, and at any rate, “the determination of whether an inmate is competent to be 26 executed cannot be made before the execution is imminent, i.e., before the warrant of 27 execution is issued by the state.” Martinez-Villareal v. Stewart, 118 F.3d 628, 630 (9th 28 Cir. 1997).

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1 R. Claim 49 2 In Claim 49, Ellison alleges that executing him after he has spent more than 14 years 3 on death row would violate the Eighth and Fourteenth Amendments. (Doc. 21 at 305-08.) 4 This unexhausted claim is meritless. “The Supreme Court has never held that 5 execution after a long tenure on death row is cruel and unusual punishment.” Allen v. 6 Ornoski, 435 F.3d 946, 958 (9th Cir. 2006); see also Knight v. Florida, 528 U.S. 990 (1999) 7 (Thomas, J., concurring in denial of certiorari) (“I am unaware of any support in the 8 American constitutional tradition or in this Court’s precedent for the proposition that a 9 defendant can avail himself of the panoply of appellate and collateral procedures and then 10 complain when his execution is delayed.”). The Ninth Circuit has also held that prolonged 11 incarceration under a sentence of death does not violate the Eighth Amendment. McKenzie 12 v. Day, 57 F.3d 1493, 1493-94 (9th Cir. 1995) (en banc). 13 S. Claims 56, 57, and 58 14 In Claim 56, Ellison alleges that he was deprived of a reliable capital-sentencing 15 proceeding because “a wealth of mitigation evidence was never discovered, presented, or 16 considered at either Ellison’s trial or during the Arizona Supreme Court’s independent 17 review.” (Doc. 21 at 325-26.) In Claim 57, Ellison alleges that the trial court’s violations 18 of state law in its evidentiary rulings rendered his trial “so arbitrary and fundamentally 19 unfair as to violate the Fifth, Eighth, and Fourteenth Amendments.” (Id. at 327-28.) In 20 Claim 58, Ellison alleges that his convictions and sentences must be vacated due to the 21 cumulative prejudicial effect of the errors in this case. (Id. at 328-30.) 22 Ellison concedes he did not raise these claims in state court. He argues that the 23 default of Claims 56 and 57 is excused by the ineffective assistance of PCR counsel. (Id. 24 at 325, 327.) But as noted throughout this order, the ineffective assistance of PCR counsel 25 can only excuse the default of claims of ineffective assistance of trial counsel. Claims 56 26 and 57 remain defaulted and barred from federal review. 27 Ellison argues that “[b]ecause of the bifurcated nature of state proceedings,” he 28 could not have raised Claim 58 in state court. (Doc. 21 at 328.) Whatever its procedural

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1 status, Claim 58 is meritless. As noted above, the Supreme Court has not specifically 2 recognized the doctrine of cumulative error as an independent basis for habeas relief and 3 Ellison has not identified two or more constitutional errors that could be accumulated. 4 IV. Evidentiary Development 5 Ellison requests evidentiary development with respect to Claims 1, 2, 25, 45(C), 6 45(D), 48, 52, 53, and 55 and “to prove his Martinez claim.” (Doc. 41.) Ellison seeks 7 discovery, an evidentiary hearing, and expansion of the record under Rules 6, 7, and 8 of 8 the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. (Id.) 9 A. Legal Standards 10 “A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to 11 discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997). 12 Rule 6 of the Rules Governing Section 2254 Cases provides that “[a] judge may, for good 13 cause, authorize a party to conduct discovery under the Federal Rules of Civil Procedure 14 and may limit the extent of discovery.” Id. “Whether a petitioner has established ‘good 15 cause’ for discovery requires a habeas court to determine the essential elements of the 16 petitioner’s substantive claim and evaluate whether specific allegations before the court 17 show reason to believe that the petitioner may, if the facts are fully developed, be able to 18 demonstrate that he is entitled to relief.” Boggs v. Shinn, 2018 WL 1794917, *3 (D. Ariz. 19 2018) (cleaned up). 20 Rule 8 of the Rules Governing Section 2254 Cases authorizes evidentiary hearings, 21 but an evidentiary hearing is not required if the issues can be resolved by reference to the 22 state-court record. Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998) (“It is axiomatic 23 that when issues can be resolved with reference to the state court record, an evidentiary 24 hearing becomes nothing more than a futile exercise.”); Schriro v. Landrigan, 550 U.S. 25 465, 474 (2007) (“[I]f the record refutes the applicant’s factual allegations or otherwise 26 precludes habeas relief, a district court is not required to hold an evidentiary hearing.”). 27 Likewise, “an evidentiary hearing is not required if the claim presents a purely legal 28

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1 question and there are no disputed facts.” Beardslee v. Woodford, 358 F.3d 560, 585 (9th 2 Cir. 2004). See also Hendricks v. Vasquez, 974 F.2d 1099, 1103 (9th Cir. 1992). 3 Finally, under Rule 7 of the Rules Governing Section 2254 Cases, a federal habeas 4 court is authorized to expand the record to include additional material relevant to the 5 petition. The purpose of expansion of the record under Rule 7 “is to enable the judge to 6 dispose of some habeas petitions not dismissed on the pleadings, without the time and 7 expense required for an evidentiary hearing.” Boggs, 2018 WL 1794917 at *4 (citation 8 omitted). However, § 2254(e)(2) limits a petitioner’s ability to present new evidence 9 through a Rule 7 motion to the same extent it limits the availability of an evidentiary 10 hearing. Cooper-Smith v. Palmateer, 397 F.3d 1236, 1241 (9th Cir. 2005) (“[Petitioner] 11 must comply with § 2254(e)(2) in order to expand the record under Rule 7.”). 12 B. Claims Adjudicated On The Merits In State Court 13 Claims 1, 2, and 25 were raised and denied on the merits in state court. Additionally, 14 most of the components of Claims 45(C) and 45(D) were raised and denied on the merits 15 in state court.53 This Court’s “review under § 2254(d)(1) is limited to the record that was 16 before the state court that adjudicated the claim on the merits.” Pinholster, 563 U.S. at 17 181; see also Gulbrandson, 738 F.3d at 993 & n.6 (explaining that “for claims that were 18 adjudicated on the merits in state court, petitioners can rely only on the record before the 19 state court in order to satisfy the requirements of § 2254(d)” and noting that this 20 “evidentiary limitation” also applies to claims under § 2254(d)(2)). 21 Ellison contends that his claims “satisfy § 2254(d) based on the state-court record” 22 and that evidentiary development is necessary for the Court to “conduct de novo review.” 23 24 53 As discussed in earlier portions of this order, Claim 45(D) encompasses six guilt- 25 phase subclaims of ineffective assistance of counsel and Claim 45(C) encompasses 10 sentencing-phase subclaims of ineffective assistance of counsel. As further discussed in 26 earlier portions of this order, Ellison did not raise, in state court, at least one and perhaps two of his guilt-phase subclaims (i..e., failing to obtain and present evidence that Watson’s 27 and Auld’s testimony about his interrogation was false and cumulative error) and did not 28 raise, in state court, two of his sentencing-phase subclaims (i.e., failing to object to the prosecutor’s statements about Finch and failing to raise parole ineligibility).

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1 (Doc. 41 at 25.) But as discussed in earlier portions of this order, the state-court denials of 2 Claims 1, 2, 25, and the exhausted portions of 45(C) and 45(D) were not unreasonable 3 under 28 U.S.C. § 2254(d). Thus, the Court is precluded from considering new evidence 4 in support of those claims. Stokley v. Ryan, 659 F.3d 802, 809 (9th Cir. 2011). Under 5 these circumstances, there is no reason to hold an evidentiary hearing or expand the record 6 and no good cause exists to authorize discovery. See also Sully v. Ayers, 725 F.3d 1057, 7 1075 (9th Cir. 2013) (“[A]n evidentiary hearing is pointless once the district court has 8 determined that § 2254(d) precludes habeas relief.”); Boggs, 2018 WL 1794917 at *6 9 (“Boggs seeks discovery and expansion of the record in support of Claim 6 . . . [but the] 10 Arizona Supreme Court denied this claim on direct appeal. Under Pinholster, Boggs is not 11 entitled to evidentiary development.”) (citations omitted). 12 C. Claims Not Adjudicated On The Merits In State Court 13 The remaining claims for which Ellison seeks evidentiary development, Claims 48, 14 52, 53, and 55 and portions of Claims 45(C) and 45(D), were not presented in state court. 15 Ellison is not entitled to an evidentiary hearing, expansion of the record, or 16 discovery with respect to any of those claims. Claim 48, in which Ellison alleges that his 17 execution would be unconstitutional because he is mentally ill, is meritless for the reasons 18 previously identified—Ellison does not allege he is incompetent and the ultimate 19 determination of competence cannot, at any rate, occur until an execution warrant has been 20 issued. A habeas petitioner is not entitled to pursue evidentiary development in support of 21 a claim that is meritless for reasons unrelated to the evidence the petitioner hopes to 22 develop. See, e.g., Schriro, 550 U.S. at 474; Totten, 137 F.3d at 1176; Beardslee, 358 F.3d 23 at 585; Hendricks, 974 F.2d at 1103. See also Boggs, 2018 WL 1794917 at *5 (denying 24 request for evidentiary development as to similar unexhausted claim). 25 Next, Claims 52, 53, and 55, alleging various acts of prosecutorial misconduct and 26 Napue violations, are procedurally defaulted and, in the absence of cause and prejudice, 27 barred from federal review. Ellison argues, and seeks to present evidence to demonstrate, 28 that the ineffective assistance of PCR counsel provides cause and prejudice for the claims’

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1 default. (Doc. 41 at 46.) But as noted elsewhere, Martinez applies only to defaulted claims 2 of ineffective assistance of trial counsel. Martinez, 926 F.3d at 1225; Pizzuto, 783 F.3d at 3 1177. Claims 52, 53, and 55 do not fall within that exception because, as Respondents 4 correctly note, “Claims 52, 53, and 55 assert[] trial court error.” (Doc. 50 at 40.) Thus, 5 further evidentiary development is unwarranted. 6 Ellison also contends that the State’s suppression of evidence provides cause for the 7 procedural default of Claims 52, 53, and 55. (Doc. 41 at 40.) But as discussed earlier, that 8 argument fails with respect to any claims predicated on the audio cassette or on Vivian 9 Brown’s testimony. Meanwhile, even assuming suppression might provide cause for the 10 procedural default of any Napue, Brady, or other prosecutorial misconduct claim premised 11 on Friesner’s notes (or, for that matter, on the audio cassette), Ellison cannot demonstrate 12 prejudice for the reasons stated earlier. Further evidentiary development is unwarranted 13 under these circumstances. See, e.g., Schriro, 550 U.S. at 474; Totten, 137 F.3d at 1176; 14 Beardslee, 358 F.3d at 585; Hendricks, 974 F.2d at 1103. 15 Next, the portions of Claim 45(D) not adjudicated on the merits in state court are 16 (1) Ellison’s claim that he received ineffective assistance during the guilt phase due to 17 counsel’s failure to obtain and present evidence that Watson’s and Auld’s testimony about 18 his interrogation was false and, potentially, (2) Ellison’s claim of cumulative guilt-phase 19 ineffective assistance. But the former is meritless for reasons discussed elsewhere, and 20 thus further evidentiary development is unwarranted. Likewise, it would be pointless to 21 allow further development regarding the cumulative error claim where no error has been 22 shown. 23 Finally, the portions of Claim 45(C) not adjudicated on the merits in state court are 24 Ellison’s claims that he received ineffective assistance during the sentencing phase due to 25 counsel’s failure to (1) object to the prosecutor’s statements about Finch and (2) raise 26 parole ineligibility. But once again, those claims are meritless for reasons that further 27 evidentiary development would not remedy. 28 …

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1 V. Certificate Of Appealability 2 Pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure, a habeas 3 petitioner cannot take an appeal unless a certificate of appealability (“COA”) has been 4 issued by an appropriate judicial officer. Rule 11(a) of the Rules Governing Section 2254 5 Cases provides that the district judge must either issue or deny a COA when it enters a final 6 order adverse to the applicant. If a COA is issued, the court must state the specific issue 7 or issues that satisfy 28 U.S.C. § 2253(c)(2). 8 Under § 2253(c)(2), a COA may issue only when the petitioner “has made a 9 substantial showing of the denial of a constitutional right.” This showing can be 10 established by demonstrating that “reasonable jurists could debate whether (or, for that 11 matter, agree that) the petition should have been resolved in a different manner” or that the 12 issues were otherwise “adequate to deserve encouragement to proceed further.” Slack v. 13 McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 14 (1983)). For procedural rulings, a COA will issue only if “jurists of reason would find it 15 debatable whether [1] the petition states a valid claim of the denial of a constitutional right, 16 and . . . [2] the district court was correct in its procedural ruling.” Id. 17 The Ninth Circuit has emphasized that the standard for granting a COA “amounts 18 to a modest standard” and that courts “must be careful to avoid conflating the standard for 19 gaining permission to appeal with the standard for obtaining a writ of habeas corpus.” Silva 20 v. Woodford, 279 F.3d 825, 832-33 (9th Cir. 2002) (cleaned up). In light of those 21 principles, the Court grants a COA as to Claim 45(C)(1) (ineffective assistance during 22 sentencing phase regarding mitigation) and Claim 45(C)(2) (ineffective assistance during 23 sentencing phase regarding FASD) 24 … 25 … 26 … 27 … 28 …

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1 Accordingly, 2 IT IS ORDERED that: 3 1. Ellison’s amended habeas (Doc. 21) is denied. The Clerk of Court shall enter 4 judgment accordingly and terminate this action. 5 2. Ellison’s request for evidentiary development (Doc. 41) is denied. 6 3. A certificate of appealability is granted with respect to Claims 45(C)(1) and 7 45(C)(2). 8 4. The Clerk of Court shall forward a courtesy copy of this order to the Clerk 9 of the Arizona Supreme Court, 1501 W. Washington, Phoenix, AZ 85007-3329. 10 Dated this 5th day of March, 2024. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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