Chappell v. Shinn et al

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Derek Don Chappell,
Petitioner,
v.
Ryan Thornell, et al.,
Respondents.
No. CV-15-00478-PHX-SPL
ORDER
DEATH PENALTY CASE
Petitioner Derek Don Chappell is an Arizona death row prisoner seeking habeas
relief under 28 U.S.C. § 2254. Before the Court are Chappell’s habeas petition and his
request for evidentiary development. (Docs. 25, 105.)1 Respondents oppose both. (Docs.
33, 87, 107–08.) The Court will deny Chappell’s petition and request but will grant a
certificate of appealability as to Claim 2(A)(4).
FACTUAL BACKGROUND
In 2003, Chappell was engaged to Kristal Shackleford (“Kristal”). State v. Chappell,
236 P.3d 1176, 1180 (Ariz. 2010).2 Kristal and her two-year old son, Devon, moved in with
Chappell and his parents. Id. On December 10, 2003, Chappell babysat Devon while Kristal
1 “Doc.” refers to the document and page number generated by the Court’s Case
Management/Electronic Case Filing system.
2 “[T]he facts as found by the Arizona Supreme Court are presumed correct.” Atwood v.
Ryan, 870 F.3d 1033, 1039 (9th Cir. 2017) (citing 28 U.S.C. § 2254(e)(1)). Chappell argues
the presumption does not apply to findings of the trial court, the Arizona Supreme Court,
and the postconviction-review (PCR) court. (Doc. 25 at 45–46.) Chappell does not
challenge the facts found by the Arizona Supreme Court in this background section.
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 1 of 140

~ 2 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
was at work. Id. As Chappell changed Devon’s diaper, he “forcefully” pressed Devon’s
neck and shoulders until Devon’s “face turned red.” Id. Chappell then called Kristal and
told her that he had “hurt” Devon and asked her to come home at once. Id. A pediatrician,
who examined Devon later that day, found bruises on his face and neck, “consistent with
choking.” Id.
In subsequent statements to police, Chappell indicated that he was jealous of
Devon’s relationship with Kristal. Id. Following an investigation, Child Protective Services
(CPS) told Chappell to have no further contact with Devon. Id. Kristal and Devon moved
into a nearby apartment; she and Chappell broke their engagement but continued seeing
each other. Id. On March 6, 2004, Chappell and Kristal told friends that they were again
engaged. Id. At the same time, Chappell was increasingly worried that the CPS restrictions
would force Kristal to choose between him and Devon. Id. And on March 10, 2004, Kristal
told Chappell that if she had to choose, “she ‘could not live without her son.’” Id.
Early the next day, Kristal called 9-1-1 to report Devon missing. Id. Police officers
found Devon floating in the swimming pool of Kristal’s apartment complex, and Devon
was pronounced dead at a local hospital. Id. The subsequent autopsy found Devon had
drowned. Id. “Chappell quickly became a suspect” and incriminated himself in Devon’s
death during police interviews. Id. 1180–81.
On March 22, 2004, a grand jury indicted Chappell for child abuse for the December
10, 2003 choking incident, and first-degree premeditated murder for killing Devon, and the
State noticed its intent to seek a death sentence for the murder if Chappell was convicted
of child abuse. (Record on Appeal, R.O.A., 10.) The jury found Chappell guilty as charged.
Chappell, 236 P.3d at 1181.
At the ensuing aggravation phase, the jury found three aggravating circumstances
under § 13-703(F)(2), (6), and (9) of the Arizona Revised Statutes: Chappell had a prior
conviction of a serious offense, child abuse; Chappell committed the murder in an
especially cruel manner; and Chappell was an adult, and the victim was under 15 years
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 2 of 140

~ 3 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
old.3 Id. At the penalty phase, the jury sentenced Chappell to death for the murder, id., and
the trial court sentenced him to a term of years for child abuse (R.O.A. 603). On August 3,
2010, the Arizona Supreme Court affirmed the convictions and sentences, Chappell, 236
P.3d at 1190, and in February 2011, the United States Supreme Court denied Chappell’s
petition for a writ of certiorari, Chappell v. Arizona, 562 U.S. 1227 (2011) (Mem.).
Chappell then sought relief, and an evidentiary hearing, on PCR. (Doc. 33, Ex. WWW.)
On June 13, 2014, the PCR court denied both requests, and the Arizona Supreme Court
denied review. (Doc. 33, Exs. OOOOO and KKKKKK.)
In 2015, Chappell filed a notice of intent to pursue habeas relief in this Court. (Doc.
1.) Between February and November 2016, the parties briefed Chappell’s petition (Docs.
33 and 87), and between April and May 2017, they briefed Chappell’s request for
evidentiary development (Docs. 105, 107, and 108).
I. APPLICABLE LAW
Chappell’s habeas petition is governed by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA).4 The Court applies the following legal framework in
considering Chappell’s claims.
A. Exhaustion & Procedural Default
A writ of habeas corpus cannot be granted unless the petitioner has exhausted
available state court remedies. 28 U.S.C. § 2254(b)(1); see also Coleman v. Thompson, 501
U.S. 722, 731 (1991). To exhaust state remedies, the petitioner must “fairly present” his
claims to the state’s highest court in a procedurally appropriate manner. O’Sullivan v.
Boerckel, 526 U.S. 838, 848 (1999). A claim is “fairly presented” if the petitioner has
described the operative facts and the federal legal theory on which the claim is
based. Anderson v. Harless, 459 U.S. 4, 6 (1982). A petitioner must clearly alert the state
3 The Arizona Supreme Court cited the statutes in effect in 2010, stating they did not
materially differ from the ones in effect at the time of Devon’s death. Id. at 1181 n.3.
4 Chappell’s challenge to the constitutionality of the AEDPA (Doc. 21 at 43) is
meritless. See Crater v. Galaza, 491 F.3d 1119, 1125–26 (9th Cir. 2007) (holding that the
AEDPA violates neither the Suspension Clause nor the separation of powers doctrine).
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 3 of 140

~ 4 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
court that he is alleging a specific federal constitutional violation. See Casey v. Moore, 386
F.3d 896, 913 (9th Cir. 2004). He must make the federal basis of the claim explicit either
by citing specific provisions of federal law—even if the federal basis of a claim is “self-
evident,” Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999)—or by citing state cases
that explicitly analyze the same federal constitutional claim, Peterson v. Lampert, 319 F.3d
1153, 1158 (9th Cir. 2003) (en banc).
A habeas claim is procedurally defaulted if it was raised in state court, but the state
court found it precluded by an adequate and independent state procedural rule. Dretke v.
Haley, 541 U.S. 386, 392 (2004). A state procedural rule is independent if it does not
depend on the merits of a “federal constitutional ruling,” Stewart v. Smith, 536 U.S. 856,
860 (2002), and a state procedural rule is adequate if it is “strictly or regularly followed,”
Barr v. City of Columbia, 378 U.S. 146, 149 (1964). A habeas claim is also procedurally
defaulted if it was never presented to the state court, and “the court to which the petitioner
would be required to present [the] claim[] in order to meet the exhaustion requirement
would now find the claim[] procedurally barred.” Coleman, 501 U.S. at 735 n.1. If no
remedies are currently available, the claim is “technically” exhausted but procedurally
defaulted. Id.; Rodney v. Garrett, 116 F. 4th 947, 954 (9th Cir. 2024) (citing Coleman, 501
U.S. at 729–32); see also Gray v. Netherland, 518 U.S. 152, 161–62 (1996).
In Arizona there are two avenues for a petitioner to exhaust federal constitutional
claims: direct appeal and PCR proceedings. Rule 32 of the Arizona Rules of Criminal
Procedure governs PCR proceedings. It provides that a petitioner is precluded from relief
on any claim that could have been raised on appeal or in a prior PCR petition. Ariz. R.
Crim. P. 32.2(a)(3). The preclusive effect of Rule 32.2(a)(3) may be avoided only if a claim
falls within certain exceptions, and the petitioner can justify the claim’s omission from a
prior petition.5 See Ariz. R. Crim. P. 32.1(b)–(h), 32.2(b), 32.4(b).
5 The Court addresses exceptions to the preclusive effect of Rule 32.2(a)(3) to the extent
raised by Chappell to justify a claim’s omission from a direct appeal or a prior
petition. See Beaty 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
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 4 of 140

~ 5 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
The United States Supreme Court has found that Rule 32.2(a)(3) is an independent
state procedural rule. Smith, 536 U.S. at 860. And in Ortiz v. Stewart, the Ninth Circuit
held that Arizona courts strictly and regularly enforce Rule 32.2(a)(3). 149 F.3d 923, 931
(9th Cir. 1998), abrogated in part on other grounds by Martinez v. Ryan, 566 U.S. 1 (2012).
Further, in Beaty v. Stewart, the Ninth Circuit noted that if a petitioner had “any
unexhausted claims, he [had] procedurally defaulted them, because [they were then] time-
barred under Arizona law,” i.e., Rule 32.2(a)(3), from returning to state court. 303 F.3d
975, 987 (9th Cir. 2002) (emphasis added).
B. Overcoming Procedural Default
A “prisoner may obtain federal review of a procedurally defaulted claim by showing
cause for the default and prejudice from a violation of federal law.” Martinez v. Ryan, 566
U.S. 1, 10 (2012). Generally, “cause” for a procedural default exists if a petitioner can
demonstrate that “some objective factor external to the defense impeded counsel’s efforts
to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986);
Coleman, 501 U.S. at 753. “Prejudice” is actual harm resulting from the alleged
constitutional error. Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998).
Ordinarily, the ineffective assistance of PCR counsel does not establish “cause” to
excuse a procedural default because the Sixth Amendment right to the effective assistance
of counsel does not apply to postconviction proceedings. Coleman, 501 U.S. at 752–54.
But in Martinez v. Ryan, the United States Supreme Court recognized a “narrow exception”
to the general rule:
Where, under state law, claims of ineffective assistance of trial counsel must
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
assistance at trial if, in the initial-review collateral proceeding, there was no
counsel or counsel in that proceeding was ineffective.
566 U.S. 1, 17 (2012). Arizona state law requires that Sixth Amendment ineffective
assistance of trial counsel claims be raised on PCR proceedings. State v. Spreitz, 39 P.3d
exceptions to Rule 32.2(a)).
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 5 of 140

~ 6 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
525, 527, ¶ 9 (Ariz. 2002). Hence, under Martinez, an Arizona habeas petitioner may
demonstrate cause and prejudice for the procedural default of an underlying claim of
ineffective assistance of trial counsel by showing that
(1) PCR counsel performed deficiently by failing to raise a trial IAC
claim;
(2) There is a “reasonable probability” that but for such deficient
performance, the result on PCR would have differed; and
(3) The ineffective assistance of trial counsel claim is “substantial,” in
that it had “some merit.”
Ramirez v. Ryan, 937 F.3d 1230, 1242 (9th Cir. 2019) (citing Martinez, 566 U.S. at 14 and
Clabourne v. Ryan, 745 F.3d 362, 377 (9th Cir. 2014), overruled on other grounds by
McKinney v. Ryan, 813 F.3d 798, 819 (9th Cir. 2015)). Proof of the first two prongs
establishes “cause,” and proof of the third prong establishes “prejudice” as required by
Strickland v. Washington, 466 U.S. 668 (1984). Id.
Indeed, under Strickland, a petitioner must show that counsel’s representation fell
below an objective standard of reasonableness and that counsel’s deficient performance
prejudiced the defense. Id. at 687–88. Deficient performance is established by “showing
that counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id. at 687. To make this showing, a
petitioner must overcome “the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” Id. at 689 (quotation omitted). A petitioner
must also affirmatively prove that he was prejudiced by counsel’s deficient representation
by “show[ing] that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome.” Id. at 694. “The
likelihood of a different result must be substantial, not just conceivable.” Richter, 562 U.S.
at 112. see Hooper, 985 F.3d at 628. The petitioner “bears the highly demanding and heavy
burden [of] establishing actual prejudice.” Allen v. Woodford, 395 F.3d 979, 1000 (9th Cir.
2005) (quoting Williams (Terry), 529 U.S. at 394). The strength of the prosecution’s case
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 6 of 140

~ 7 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
factors into the determination of prejudice. See Strickland, 466 U.S. at 696 (“[A] verdict or
conclusion only weakly supported by the record is more likely to have been affected by
errors than one with overwhelming record support.”); Riley v. Payne, 352 F.3d 1313, 1321
n.8 (9th Cir. 2003) (“[O]ur evaluation of Strickland prejudice must be considered in light
of the strength of the government’s case.”)
The Martinez exception does not extend beyond underlying claims of ineffective
assistance of trial counsel. Martinez v. Ryan, 926 F.3d 1215, 1225 (9th Cir. 2019); Pizzuto
v. Ramirez, 783 F.3d 1171, 1177 (9th Cir. 2015) (declining “to substantially expand the
scope of Martinez beyond the circumstances” there); Hunton v. Sinclair, 732 F.3d 1124,
1126–27 (9th Cir. 2013) (noting that only the Supreme Court can extend the application
Martinez); see also Davila v. Davis, 582 U.S. 521, 529–31 (2017) (Martinez does not apply
to claims of appellate IAC).
Finally, the United States Supreme Court has limited the evidence that may be
considered by a federal court in determining whether PCR counsel rendered ineffective
assistance for purposes of cause and prejudice under Martinez. In Shinn v. Ramirez, the
Court held that with respect to IATC claims that were not adjudicated on the merits in state
court, “a federal court may not hold an evidentiary hearing—or otherwise consider new
evidence,” unless the “stringent requirements” of 28 U.S.C. § 2254(e)(2) are met. 596 U.S.
366, 381 (2022). Under § 2254(e)(2), if a petitioner “failed to develop the factual basis of
a claim in State court proceedings,” a federal habeas court “shall not hold an evidentiary
hearing on the claim” unless the petitioner shows that
(A) the claim relies on—
(i) a new rule of constitutional law made retroactive to cases on
collateral review by the Supreme Court, which was previously
unavailable; or
(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear
and convincing evidence that but for constitutional error, no
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 7 of 140

~ 8 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
reasonable factfinder would have found the [petitioner] guilty of the
underlying offense.
28 U.S.C. § 2254(e)(2).
“Diligence for purposes of [§ 2254(e)(2)’s] opening clause depends upon whether
the prisoner made a reasonable attempt, in light of the information available at the time, to
investigate and pursue claims in state court; it does not depend . . . upon whether those
efforts could have been successful.” Williams (Michael) v. Taylor, 529 U.S. 420, 435
(2000). “Diligence will require in the usual case that the prisoner, at a minimum, seek an
evidentiary hearing in state court in the manner prescribed by state law.” Id. at 437.
“[C]omity is not served by saying a prisoner ‘has failed to develop the factual basis of a
claim,’ where he was unable to develop his claim in state court despite diligent effort.” Id.
C. Standard for Relief under the AEDPA
Under the AEDPA, a petitioner is not entitled to habeas relief on a claim adjudicated
on the merits in state court unless the state court’s ruling (1) resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly-established federal law as
determined by the Supreme Court or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in state court. 28
U.S.C. § 2254(d).
A state court decision on the merits is “contrary to” clearly-established federal law
under § 2254(d)(1) if the decision applies a rule that contradicts the governing law set forth
in Supreme Court precedent, thereby reaching a conclusion opposite to that reached by the
Supreme Court on a matter of law, or if it confronts a set of facts that is materially
indistinguishable from a Supreme Court decision but reaches a different result. Williams
(Terry) v. Taylor, 529 U.S. 362, 405–406 (2000); see, e.g., Hooper v. Shinn, 985 F.3d 594,
614 (9th Cir. 2021). The “unreasonable application” prong of § 2254(d)(1) describes a state
court ruling on the merits that “identifies the correct governing legal rule from [the
Supreme] Court’s cases but unreasonably applies it to the facts of the particular . . . case”
or “unreasonably extends a legal principle from [Supreme Court] precedent to a new
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 8 of 140

~ 9 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
context where it should not apply or unreasonably refuses to extend that principle to a new
context where it should apply.” Terry, 529 U.S. at 407; see, e.g., Murray (Robert) v.
Schriro, 745 F.3d 984, 997 (9th Cir. 2014).
The United States Supreme Court has emphasized that “an unreasonable application
of federal law is different from an incorrect application of federal law.” Terry, 529 U.S. at
365 (emphasis by Terry) (citing Wright v. West, 505 U.S. 277, 305 (1992)). For a state
court’s decision to be an unreasonable application of clearly established federal law, “the
ruling must be ‘objectively unreasonable, not merely wrong; even clear error will not
suffice.’” Virginia v. LeBlanc, 582 U.S. 91, 94 (2017) (quoting Woods v. Donald, 575 U.S.
312, 316 (2015) (per curiam)); see Shinn v. Kayer, 592 U.S. 111, 117 (2020); Bolin v.
Davis, 13 F.4th 797, 805 (9th Cir. 2021). The burden is on the petitioner to demonstrate
“there was no reasonable basis for the state court to deny relief.” Harrington v. Richter,
562 U.S. 86, 98 (2011). He “must show that the state court’s decision is so obviously wrong
that its error lies ‘beyond any possibility for fairminded disagreement.’” Kayer, 592 U.S.
at 118 (quoting Richter, 562 U.S. at 103). This standard is “meant” to be “difficult to meet.”
Richter, 562 U.S. at 102. Further, “review under § 2254(d)(1) is limited to the record that
was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster,
563 U.S. 170, 181 (2011); see Robert, 745 F.3d at 998.
Under § 2254(d)(2), habeas relief is available if the state court decision was based
on an “‘unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.’” See Miller-El v. Dretke (Miller-El II), 545 U.S. 231, 240 (2005)
(quoting § 2254(d)(2)). “[A] decision adjudicated on the merits in a state court and based
on a factual determination will not be overturned on factual grounds unless objectively
unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El v.
Cockrell (Miller-El I), 537 U.S. 322, 340 (2003). A state court’s factual determination is
presumed correct, and a petitioner bears the burden of overcoming that presumption with
clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see Miller-El I, 537 U.S. at 340. A
“factual determination is not unreasonable merely because [a] federal habeas court would
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 9 of 140

~ 10 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301
(2010); see Brumfield v. Cain, 576 U.S. 305, 314 (2015) (explaining that § 2254(d)(2)
requires federal courts to “accord the state trial court substantial deference”); Walden v.
Shinn, 990 F.3d 1183, 1196 (9th Cir. 2021); Ayala v. Chappell, 829 F.3d 1081, 1094 (9th
Cir. 2016) (“A state court’s factual findings are unreasonable if ‘reasonable minds
reviewing the record’ could not agree with them.”) (quoting Brumfield, 576 U.S. at 314).
As with review under § 2254(d)(1), review under § 2254(d)(2) is limited to the record that
was before the state court that adjudicated the claim on the merits. Gulbrandson v. Ryan,
738 F.3d 976, 993 n.6 (9th Cir. 2013) (Pinholster and statutory text make clear that
evidence is limited to that before the state court that adjudicated the claim). Therefore:
for claims that were adjudicated on the merits in state court, petitioners can
rely only on the record before the state court in order to satisfy the
requirements of § 2254(d). This effectively precludes federal evidentiary
hearings for such claims because the evidence adduced during habeas
proceedings in federal court could not be considered in evaluating whether
the claim meets the requirements of § 2254(d).
Gulbrandson, 738 F.3d at 993–94.
D. Application of Brecht to Trial Error Claims
In addition to the foregoing, a petitioner can only receive “habeas relief based on
trial error” if he shows that the error had a “substantial and injurious effect or influence”
on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (internal quotations
omitted). A “reasonable possibility” of a substantial and injurious effect or influence does
not suffice. Id. (internal quotations omitted).
The Brecht standard echoes the “presumption of finality and legality,” id. at 633,
which “protects the State’s sovereign interest in punishing offenders and its good-faith
attempts to honor constitutional rights, while ensuring that the extraordinary remedy of
habeas corpus is available to those whom society has grievously wronged.” Calderon v.
Coleman, 525 U.S. 141, 146 (1998) (cleaned up). A federal habeas court “upsets this
careful balance” if it overturns a state-court conviction or sentence based on trial error
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 10 of 140

~ 11 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
without applying the Brecht test. Id. Thus, if the state court adjudicated a claim of trial
error on the merits, a habeas court must find that a petitioner has “cleared both [the AEDPA
and Brecht] tests.” Brown v. Davenport, 596 U.S. 118, 134 (2022). If the state court did
not adjudicate a claim of trial error on the merits, “the AEDPA falls away,” and a habeas
court may dismiss the claim under Brecht without applying the AEDPA. Id. at 138.
E. Evidentiary Development
Chappell asks to develop the evidence through discovery, expansion of the record,
and an evidentiary hearing. (Doc. 105.) As background, the Court will briefly describe the
limits to evidentiary development. With respect to discovery, a petitioner is not given
discovery as a “matter of ordinary course,” but this Court “may” allow it for “good cause”
shown by the petitioner. Rule 6(a) Governing Section 2254 Cases; see Bracy v. Gramley,
520 U.S. 899, 904 (1997); Boggs v. Shinn, No. CV-14-02165-PHX-GMS, 2018 WL
1794917, at *3 (D. Ariz. 2018) (citing Bracy, 520 U.S. at 908). Under Rule 7 Governing
Section 2254 Cases, the Court may expand the record with material relevant to the petition
but within the confines of § 2254(e)(2), Cooper-Smith v. Palmateer, 397 F.3d 1236, 1241
(9th Cir. 2005). And Rule 8 Governing Section 2254 Cases permits evidentiary hearings
but not when a claim presents an issue of purely law without any “disputed facts,”
Beardslee v. Woodford, 358 F.3d 560, 585 (9th Cir. 2004), or can be resolved on the state-
court record, Schriro v. Landrigan, 550 U.S. 465, 474 (2007). The Court will expand on
these standards below.
GUILT PHASE CLAIMS
II. CLAIMS 1 AND 2(A)(3)
In Claim 1, Chappell alleges that he was denied a trial by a fair and impartial jury
in violation of his Sixth and Fourteenth Amendment rights in three ways. (Doc. 25 at 53–
61.) First, he alleges that at least one juror saw him shackled during the guilt phase. (Id. at
54–56.) Second, he alleges that at least one juror was coerced into reaching a death verdict
by the court’s instructions and other jurors. (Id. at 56–60.) Third, he alleges the bailiff’s
interactions with jurors denied him a fair and impartial jury, which prejudiced him. In
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 11 of 140

~ 12 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Claim 2(A)(3), Chappell alleges that trial counsel rendered ineffective assistance under the
Sixth Amendment by failing to investigate the juror issues in Claim 1. (Id. at 84.)
A. Additional Background
In the first part of Claim 1, Chappell alleges that at least one juror saw him shackled
during the guilt phase, based on the following facts. On August 15, 2007, the bailiff
informed the court that he overheard Juror 1 tell the other jurors that they were required to
wait in the jury room after trial adjourned for the day until Chappell was shackled and
removed from court. (Reporters Transcript, R.T., 8/16/07, a.m., at 3–5.) The court directed
the bailiff to inform counsel about Juror 1’s statement. (Id.) The next day, the court held a
hearing with counsel about Juror 1’s statement concerning why the jury was held in the
jury room after court adjourned for the day. (Id.) The prosecutor opined that Juror 1 had
speculated about the reason the jury was delayed from leaving and noted that no juror had
reported seeing Chappell shackled.6 (Id. at 3.) Defense counsel noted that chains had been
left in the jury box earlier during the trial, following a hearing in an unrelated case; the
prosecutor pointed out that Juror 1 had been seated the farthest from where the chains had
been left, and that the bailiff had not heard any juror mention them. (Id. at 5–6.) The trial
court agreed with the prosecutor that Chappell had not been shackled while the jury was
present and agreed there was no basis to believe that a juror had seen Chappell shackled.
(Id. at 4–5.) The court allowed the parties to propose curative jury instructions, but neither
did so. (Id. at 6; R.T. 8/27/07 at 15.)
In the second portion of Claim 1, Chappell alleges that at least one juror felt coerced
at the penalty phase by other jurors and by the jury instructions, as follows.
After the court instructed the jury at the penalty phase, but before deliberations
began, two jurors submitted notes, and a third orally asked, what would happen if jurors
6 As discussed by the prosecutor and the trial court during the hearing, the usual practice
was to allow jurors to leave the courtroom before removing a defendant, which for
unknown reasons, had not been followed to that point in Chappell’s trial. (Id. at 4.) The
court directed that for the balance of the trial, the jurors would be excused and allowed to
leave before Chappell was removed. (Id.)
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 12 of 140

~ 13 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
could not reach a unanimous verdict. (R.T. 10/29/07 at 3.) The court informed the parties
of the notes and requested their views. (Id.) The prosecutor asked the court to tell the jury
what would happen if it deadlocked. (Id. at 4–5.) Defense counsel asked the court not to
answer the question unless there was an affirmative indication that the jury was
deadlocked. (Id.) The prosecutor also proposed the court instruct the jury as follows:
You have a duty to deliberate in this case. The 12 of you who will decide this
case have received all of the facts and law applicable and necessary to decide
this case. There is no time restriction regarding your deliberation. We will
accommodate ongoing deliberations as needed, including the remainder of
this week and beyond.
. . .
If you are unable to reach a verdict in this case, a mistrial must be declared,
a new jury selected, and the case presented anew to that new jury for penalty
determination.
(Id. at 5-6.) Defense counsel objected to that proposed instruction, saying the first part did
not answer the question, and the second might lead the jury to believe that it would have
to deliberate indefinitely to reach a verdict. (Id. at 6.) Defense counsel asked the court to
instead speak to the three jurors and to instruct the jury that if it could not reach a
unanimous verdict, it should inform the court. (Id. at 6–8.)
Without objection, the court spoke with each of the three jurors individually and
outside the presence of the other jurors. (Id. at 10–13.) Each denied having discussed the
case with any other juror.7 (Id.) The parties declined to ask the three jurors any questions.
(Id. at 12–13.)
Following the juror interviews, the prosecutor proposed that the court tell the jury
what would happen if it deadlocked to prevent that issue from distracting the jury from its
deliberations. (Id. at 14–15.) Defense counsel opposed doing so, arguing that it would
7 One juror asked the question because a coworker had dealt with that issue in a different
case. (Id. at 11.) A second asked out of curiosity. (Id. at 12.) And the third asked because
the question had been raised in the jury room without any juror giving their position on the
verdict. (Id. at 13.)
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 13 of 140

~ 14 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
pressure the jury to reach a verdict “one way or the other.” (Id.) The court instructed the
jury as follows:
You can only discuss the case when 12 of you are in the jury room, and you
can only deliberate in that jury room and only ask questions of the Court in
writing, and let me tell you this too: We will accommodate ongoing
deliberations as needed. This is something you should know, including the
remainder of this week and beyond. We will, in other words, in response to
a [sic] juror questions, we will be available [from October 31] to [November
13]. We will be available, so you’ll be deliberating as long as it takes.
If the jury is ever at an impasse, the Court should be advised.
(R.T. 10/29/07 at 163.) Chappell alleges the instruction caused at least one juror to feel
coerced to agree to a verdict because the court instructed that deliberations would continue
until the jury reached a unanimous verdict.
Chappell also alleges that at least one juror felt coerced by other jurors to support a
death sentence as follows. During penalty phase deliberations on October 31, 2007, a juror
submitted a note to the court saying that “many jurors” were making her feel rushed and
that one of the other jurors had told her that she needed “to hurry.” (R.T. 10/31/07 at 6–7,
17.) After other jurors had left the jury room, two other jurors voiced concerns to the bailiff
about being rushed to reach a decision. (Id. at 17.) The parties disagreed about whether the
court should speak with the juror who had sent the note. (Id. at 8.) The prosecutor asked
the court not to speak to the juror because pressuring other jurors was “part of
deliberations,” and that the dynamic in the jury room should be addressed by the foreperson
or another juror. (Id.) Defense counsel, however, asked the court to speak with the juror to
obtain more details, but without inquiring about deliberations, so that the court could make
an appropriate record or take other action, if warranted. (Id.) The prosecutor replied that
questioning the juror was premature. (Id.)
The court decided to respond to the juror’s note without speaking to that juror. (Id.)
Defense counsel asked the court to respond to the note by saying that the juror should not
“feel rushed to judgment” and that the juror had “a duty to deliberate and come to [his or
her] own individual, moral conclusion” about Chappell’s sentence. (Id. at 8, 12.) The court
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 14 of 140

~ 15 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
instead proposed the following response: “We are hopeful you can work as a team and
come to a unanimous decision if you can . . . .” (Id. at 14–15.) The prosecutor argued that
saying “if you can,” together with “hopeful” might invite the jury “to not reach a unanimous
verdict.” (Id. at 15.) The prosecutor proposed the following:
One of you has expressed a concern about deliberations in this case being
rushed. Please know we will continue to accommodate your schedule and
give you whatever time you need to deliberate on this case. . . . We are
hopeful that you as a team are able to reach a unanimous verdict.
(Id.) Defense counsel argued that “the law contemplates the possibility of a non-unanimous
verdict” and again urged the court to interview the juror. (Id. at 15–16.) Defense counsel
also argued that the court should not instruct the jury that it must “form a consensus”
because “the juror’s own individual assessment as to what she or he thinks personally ought
to be is entitled to respect . . . .” (Id.) The court then proposed the following response:
One of you has expressed a concern about deliberations in this case being
rushed. Please know that we will continue to accommodate your schedule
and give you whatever time you need to deliberate on this case. . . .
Remember, the jury has an obligation to deliberate together. We are hopeful
that as a team you are able to reach a unanimous verdict.
(R.T. 11/1/07, vol. 1, at 3.) Both parties objected to the “Remember . . .” sentence of that
proposed response, and the court agreed to omit it. (Id. at 4–5.)
Defense counsel then proposed the following response to the note:
You have expressed a concern about deliberations in this case being rushed.
Please know that we will continue to accommodate your schedule and give
you whatever time you need to deliberate in this case.
The law does not require you to return a unanimous verdict. Once an
individual juror has in their individual assessment made a determination
about what the penalty should be, that juror no longer has a duty to deliberate
further.
(Id. at 6.) The prosecutor opposed this response as prematurely “approaching a quasi-
impasse instruction.” (Id.) The court agreed with the prosecutor and ultimately responded
to the note as follows: “One of you has expressed a concern about deliberations in this case
being rushed. Please know that we will continue to accommodate your schedule and give
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 15 of 140

~ 16 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
you whatever time you need to deliberate on this case.” (Id.)
Later that day, the court received two more notes from the jury: one stating the jury
wanted to take a week off, and the other stating, “We thought we heard one of the attorneys
make the statement that if we cannot come to a unanimous decision, that the judge would
then sentence the defendant to natural life or life with the possibility of parole after 35 years
served. Is this correct?” (R.T. 11/1/07, vol. 2, at 3.) The court proposed to respond either
by (1) telling the jury that if it could not unanimously agree on a sentence, the penalty
phase would be retried to another jury or (2) that information concerning how Chappell
might later be sentenced, if this jury could not reach a unanimous decision, was irrelevant.
(Id. at 4.)
Defense counsel argued the second option was “more appropriate” because jurors
should focus on their duty as factfinders and not the effect of a deadlock. (Id. at 4, 6.) The
prosecutor argued that the second option would permit jurors to proceed “with an absolute
misconception” of the law and argued that there was no “downside” to telling jurors the
truth, and that jurors would be distracted by the issue if the court “ignor[ed]” the question
regarding the effect of an impasse. (Id. at 6–8.)
The court responded to the juror notes as follows: “The information you relate with
respect to sentencing is incorrect. At this stage of your deliberations, what results, if the
jury cannot come to a unanimous decision at the penalty phase of the trial, is irrelevant to
any eventual decision of the jury.” (Id. at 8–9.) The court indicated to counsel that it would
consider an impasse instruction if the jury stated that it was deadlocked. (Id.) Several days
later, on November 14, 2007, the jury returned a verdict of death. (RT 11/14/07 at 5–6.)
On November 20, 2007, defense co-counsel, Lynn Burns, wrote a “memo to file,”
stating that on November 19, 2007, another attorney had contacted Burns about a
conversation that the attorney had with the attorney’s pastor. (Doc. 54 at 6.) According to
Burns’ memo, in that conversation, the pastor had shared that another parishioner “was
seeking spiritual council concerning the Chappell matter.” (Id.) The pastor’s comments
“led [the attorney] to believe that this parishioner was telling [the pastor] that either” the
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 16 of 140

~ 17 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
parishioner,” or “someone very close” to the parishioner, was a juror in Chappell’s trial
“and that this individual as well as several” other jurors “had been ‘coerced’” into
sentencing Chappell to death. (Id.) The attorney “informed the pastor that she” would
“inform” Chappell’s defense counsel, i.e., Burns, of these concerns and that Chappell’s
defense counsel would probably contact the pastor. (Id.) According to the memo, on
November 19, 2007, Burns spoke to the pastor, who refused to disclose what the
parishioner had told him based on clergy-penitent confidentiality. (Id.) After explaining the
standard to raise a juror coercion claim, Burns informed the pastor that the defense would
need “firsthand information from someone in the jury room” to raise a juror coercion claim
“within a week or so.” (Id.)
After investigation, defense counsel “determined” the identity of the juror who had
conferred with the pastor and learned that the juror wanted a letter from defense counsel
confirming that defense counsel wanted to speak to her about possible coercion. (Id. at 5.)
In a December 17, 2007 letter, defense counsel, Lawrence Matthew, informed the juror
that the defense was seeking first-hand information to assess whether a juror-coercion
claim could be raised but that the time within which to raise a coercion claim would “close
in the very near future” and because he was going to be unavailable, provided Burns’s
contact information.8 (Id.) At around the same time as Matthew’s letter to the juror, Burns
told Chappell’s mother that a juror had qualms about voting to impose the death penalty
because the juror had wanted to continue deliberating but that the foreman “had bullied her
into an early vote to impose the death penalty.” (Doc. 53 at 47.)
In the third part of Claim 1, Chappell alleges that he was denied a fair and impartial
jury based on improper interactions of the bailiff with two jurors and the bailiff making
8 Chappell submitted a declaration from Matthew, who averred that an investigator called
the juror, but the juror requested a letter before she would speak to defense counsel. (See
Doc. 54 at 5.) Matthew averred that he sent the juror a letter but that as far as he knew, the
juror did not contact co-counsel while he was away. (Doc. 105-4, Ex. 31, ¶ 7; see Doc. 54.)
Although Chappell submitted a declaration from Burns, Burns does not indicate that the
juror contacted her. (Doc. 49 at 71–72; Doc. 71, Ex. XXXXX at 7.)
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 17 of 140

~ 18 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
gestures towards those jurors during the defense closing argument at the penalty phase.
(Doc. 25 at 60–61.) After closing argument at the penalty phase, defense counsel informed
the court—outside the jury’s presence—that counsel had seen two front-row jurors
laughing and smiling toward the bailiff and that audience members had observed the bailiff
“mak[ing] gestures” toward the jury. (R.T. 10/25/07 at 75, 82.) When defense counsel
questioned the bailiff, the bailiff told counsel that he had been trying to keep a juror awake
because the juror had earlier struggled to stay awake. (Id.) When questioned by the court,
the bailiff stated that he had been returning break requests to jurors. (Id. at 76.) The court
directed the bailiff not to communicate with the jurors in any way. (Id. at 76–77.) When
the jurors re-entered the courtroom, the court also instructed them to address questions to
the court and not to the bailiff. (Id. at 81–82.) The court concluded that the jurors and the
bailiff had not discussed the case. (Id. at 82.)
B. Claim 1
Respondents argue that Claim 1 is procedurally defaulted under Rule 32.2(a)(3) of
the Arizona Rules of Criminal Procedure and that Chappell has not shown cause and
prejudice or a fundamental miscarriage of justice to excuse the default. (Doc. 33 at 29.)
Chappell argues that Claim 1 is not procedurally defaulted because Rule 32.2(a)(3) was
not an adequate and independent state procedural rule. (Doc. 25 at 53; Doc. 87 at 12–14.)
He also argues there was no available state corrective process under § 2254(b)(1)(B), or
circumstances existed that rendered an available process ineffective to protect his rights
such that procedural default does not apply. (Doc. 25 at 53; Doc. 87 at 14–17.) Finally, he
argues that even if Claim 1 is procedurally defaulted, the ineffective assistance of PCR
counsel excuses the default under Martinez. (Doc. 87 at 17–18.)
On PCR, Chappell alleged that defense counsel failed to “adequately investigate and
address specific acts of juror misconduct, which rendered his trial fundamentally unfair,
and violated his rights to due process, a fair trial, and the assistance of counsel. (Doc. 42 at
8-61, Ex. WWW at 4–5.) The PCR court found the claim precluded under Rule 32.2(a)(3)
because it had not been raised at trial, on direct appeal, or in a prior collateral proceeding.
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 18 of 140

~ 19 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(Id., Ex. WWW at 40–46; Ex. OOOOO at 2.) The Arizona Supreme Court denied review.
(Doc. 33, Exs. HHHHHH at 9–11 and KKKKKK.)
Rule 32.2(a)(3) was in effect at the time the PCR court found Claim 1 precluded,
but Chappell argues that Rule 32.2(a)(3) was not strictly and regularly enforced as to claims
of juror misconduct, citing three cases. In Ortiz, decided in 1998, the Ninth Circuit held
that Rule 32.2(a)(3) was a state procedural rule adequate to preclude federal habeas review.
Two of the three cases cited by Chappell were decided more than ten years before Ortiz.
See State v. Cummings, 716 P.2d 45 (Ariz. Ct. App. 1985) (denying juror misconduct
claims raised on PCR); State v. Adamson, 665 P.2d 972 (Ariz. 1983) (denying juror
misconduct claim raised on PCR). In the third case, State v. Fitzgerald, the court denied a
motion for new trial as untimely. 303 P.3d 519 (Ariz. 2013). The court held that a motion
for new trial under Arizona Rule of Criminal Procedure 24 had to be filed within ten days
of the relevant verdict in a capital trial, i.e., guilt, aggravating, or penalty, and not merely
within 10 days of the sentencing verdict. Id. at 524. It further noted that Rule 24 contained
no exception to the 10-day requirement for later discovery of grounds to seek a new trial,
explaining,
if a defendant who first discovers possible grounds for a new trial after the
ten-day time frame has no available relief under Rule 24.1, he would have to
resort to a Rule 24.2 motion to vacate the judgment or a Rule 32 petition for
post-conviction relief.5 See State v. Adamson, 136 Ariz. 250, 265, 665 P.2d
972, 987 (1983) (addressing post-conviction relief claim of newly discovered
evidence allegedly showing jury misconduct during voir dire); Hickle, 129
Ariz. at 332, 631 P.2d at 114 (noting that a defendant whose motion for new
trial was untimely under Rule 24.1(b) might not be “foreclosed from relief”
under Rule 24.2).
FN.5 Because a defendant may move to vacate the judgment “no later than
60 days after the entry of judgment and sentence but before the defendant’s
appeal,” Ariz. R. Crim. P. 24.2 (emphasis added), the longer time frame for
filing under Rule 24.2 would begin to run in a capital case upon the penalty-
phase verdict, not the jury’s guilt verdict, Nordstrom, 230 Ariz. at 116–17 ¶¶
25–26, 280 P.3d at 1250–51; see also Spears, 184 Ariz. at 288, 908 P.2d at
1073 (noting that the trial court reached the merits of a motion alleging juror
misconduct by apparently construing it as a timely motion to vacate judgment
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 19 of 140

~ 20 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
based on newly discovered evidence, rather than an untimely motion for a
new trial).
303 P.3d at 523.
The Fitzgerald court did not hold that a juror misconduct claim discovered after the
time to file a timely Rule 24.1 or 24.2 motion would be excepted from application of Rule
32.2(a)(3) but instead indicated that such a claim could possibly be raised on PCR. Id. Cf.
State v. Speers, 361 P.3d 952, 960 (Ariz. Ct. App. 2015) (petitioner stated colorable IAC
based on counsel’s abandonment of a proposed jury instruction and failure to develop a
record of alleged juror misconduct, which were not precluded by waiver on PCR for failure
to raise on direct appeal where defendant was not allowed to bring IAC claims before or
during trial, or on direct appeal); State v. Marietta, No. 2 CA-CR 2008-0410-PR, 2009 WL
1804167, at *2 (Ariz. Ct. App. June 23, 2009) (assuming without deciding petitioner could
state colorable juror misconduct claim in first timely PCR); State v. Macias, 469 P.3d 472,
476 (Ariz. Ct. App. 2020) (assuming without deciding that juror misconduct claim in first
PCR could be considered, and distinguishing State v. Kolmann, 367 P.3d 61, 67 (Ariz.
2016), which held juror misconduct claim in that case could have been raised in post-trial
motion under Rule 24). And in State v. Ojeda, the PCR court found precluded a juror
misconduct claim raised for the first time on PCR, despite the unavailability of discovery
to develop the record prior to direct appeal because the claim had not been raised on direct
appeal. No. 1 CA-CR 16-0002 PRPC, 2017 WL 2644325, at *1, ¶ 3-4 (Ariz. Ct. App. June
20, 2017). Thus, Fitzgerald did not hold that preclusion under Rule 32.2(a)(3) did not apply
to juror misconduct claims. To the contrary, it reflected that such claims must be raised in
a timely Rule 24 motion, on direct appeal, or potentially in a petitioner’s first PCR.
The cases cited by Chappell do not reflect that Rule 32.2(a)(3) is not strictly and
regularly enforced as to claims of juror misconduct. Accordingly, Chappell has failed to
show that Rule 32.2(a)(3) was not an adequate to preclude federal habeas review.
Chappell also argues that he lacked an “available state corrective process or
circumstances exist[ed] that rendered the process ineffective,” citing 28 U.S.C.
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 20 of 140

~ 21 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
§ 2254(b)(1)(B), which provides, that “[a]n application for a writ of habeas corpus . . . shall
not be granted unless it appears that—(B)(i) there is an absence of available corrective
process; or (ii) circumstances exist that render such process ineffective to protect the rights
of the applicant.” Respondents contend that Chappell could have raised the substance of
Claim 1 on direct appeal. (Doc. 33 at 31.) Chappell replies that he could not have raised
the substance of Claim 1 under Arizona Rule of Criminal Procedure 24, because the types
of juror misconduct he wished to raise, i.e., coercion, inappropriate interactions between
jurors and bailiff, and juror observations of shackling, were not raisable under Rule 24.1(c).
(Doc. 87 at 14–15, citing State v. Smith, 593 P.2d 281, 284 (Ariz. 1979) (holding on direct
appeal that instances of juror misconduct alleged by defendant did not fall within the
categories of such misconduct contained in Rule 24.1(c)). Assuming that Rule 24.1(c)(3)
does not cover the jury-related claims in Claim 1, Rule 24.1(c)(5) covers them by
permitting new trials “for any other reason, not due to the defendant’s own fault, the
defendant did not receive a fair and impartial trial or phase of trial.” Ariz. R. Crim. P.
24.1(c)(5). Claim 1 falls under a (c)(5) assessment.
Chappell further argues that he could not have fairly presented Claim 1 on direct
appeal absent the ability to develop evidence outside the trial record and that Rule 24.1
required that a motion be filed within 10 days of the relevant verdict, which was insufficient
for him to locate “extra-record evidence and investigat[e] jurors’ conduct throughout the
trial.” (Id. at 15–16.) For similar reasons, Chappell argues that the 60-day limitation to file
a Rule 24.2 motion to vacate also failed to afford sufficient time to conduct a thorough
investigation and develop necessary extra-record factual support and denied him a
meaningful state corrective process to raise the substance of Claim 1 in state court. (Id.
16–17.) Chappell essentially asserts that it would have been futile to raise his juror-related
claims in state court because he could not have fully developed the evidence to support
them.
But the Supreme Court has rejected the futility doctrine. See Engle v. Isaac, 456
U.S. 107, 130 (1982). “If a defendant perceives a constitutional claim and believes it may
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 21 of 140

~ 22 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
find favor in the federal courts, he may not bypass the state courts simply because he thinks
they will be unsympathetic to the claim. Even a state court that has previously rejected a
constitutional argument may decide, upon reflection, that the contention is valid.” Id.; see
also Roberts v. Arave, 847 F.2d 528, 530 (9th Cir. 1988) (“[T]he apparent futility of
presenting claims to state courts does not constitute cause for procedural default.”); Parker
v. Kelchner, 429 F.3d 58, 63 (3rd Cir. 2005) (“Our sister Circuits that have considered the
issue have similarly concluded that the exhaustion requirement is not excused merely
because a petitioner's claim will likely be denied on the merits in state court.”). Therefore,
Chappell’s contention that it would have been futile to present the juror-related claims in
state court fails under § 2254(b)(1)(B). As shown above, the basis for Chappell’s juror-
misconduct claims were present at the time of trial. Accordingly, the Court finds that Claim
1 is procedurally defaulted.
Chappell next argues that even if Claim 1 is procedurally defaulted, the ineffective
assistance of PCR counsel establishes cause to excuse the default under Martinez. As
discussed above, however, the Supreme Court has limited cause and prejudice to excuse
procedural default under Martinez to claims of ineffective assistance of trial counsel.
Because Claim 1 does not assert an ineffective assistance of trial counsel claim, the alleged
ineffective assistance of PCR counsel cannot establish cause to excuse the procedural
default of Claim 1.
Chappell also seeks to expand the record and an evidentiary hearing on Claim 1. As
described above, “a federal court may not hold an evidentiary hearing—or otherwise
consider new evidence” in support of a procedurally defaulted claim unless the “stringent
requirements” of 28 U.S.C. § 2254(e)(2) are met. Shinn, 596 U.S. at 381 (emphasis added).
Under § 2254(e)(2)(i), a federal habeas court may only consider new evidence in support
of a procedurally defaulted claim if the petitioner shows that “(A) the claim relies on (i) a
new rule of constitutional law made retroactive to cases on collateral review by the
Supreme Court, which was previously unavailable; or “(ii) a factual predicate that could
not have been previously discovered through the exercise of due diligence; and “(B) the
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 22 of 140

~ 23 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
facts underlying the claim would be sufficient to establish by clear and convincing evidence
that but for constitutional error, no reasonable factfinder would have found the [petitioner]
guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2). Section 2254(e)(2)(i) is not
implicated as to Claim 1. And even assuming the factual predicate could not have been
previously discovered through the exercise of due diligence, which Chappell himself does
not assert, the facts underlying the claim are not sufficient to establish by clear and
convincing evidence that but for constitutional error, no reasonable factfinder would have
found Chappell guilty, in light of the evidence presented, which as described, included
Chappell’s admissions to police and at the press conference.
For the reasons discussed, Claim 1 is procedurally defaulted and Chappell has not
established cause and prejudice or a fundamental miscarriage of justice to excuse the
default. Claim 1 will be denied as will Chappell’s request for evidentiary development as
to Claim 1.
C. Claim 2(A)(3)
Chappell alleges that trial counsel rendered ineffective assistance by failing to
investigate and raise the three juror issues in Claim 1. (Doc. 25 at 84; Doc. 105, Exs. 31,
34-35.) In support of this claim, Chappell incorporates by reference the “facts and
arguments made in Claim [1].”9 (Doc. 25 at 93.) Chappell asserts this claim was only
presented in part on PCR, and the PCR court denied the claim presented on the merits
without a hearing. (Id.) He argues that evidence developed during these habeas proceedings
fundamentally alters the claim considered by the state court, rendering the supplemented
claim unexhausted and procedurally defaulted because the new evidence places this claim
in a significantly different and stronger evidentiary posture than the claim considered by
the state courts. (Id.) He further contends this alleged procedural default is excused by the
ineffective assistance of PCR counsel. (Doc. 87 at 39–40.) He contends that even if the
claim is exhausted, de novo review applies to exhausted IATC claims, like this one. (Id. at
9 Chappell concedes that the factual basis for Claim 1 was not developed based on the PCR
court’s denial of leave to contact jurors as precluded by Rule 32.2(a)(3). (Doc. 25 at 62.)
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 23 of 140

~ 24 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
40.) Finally, Chappell asserts that the state courts failed to consider the cumulative impact
of prejudice resulting from the various IATC claims.
Respondents contend that this claim was exhausted in state court and that the state
courts denied it on the merits. (Doc. 33 at 70–75.) They argue that any proffered new
evidence does not fundamentally alter the claim considered by the state courts. (Id.)
Respondents further maintain that the state court’s denial of the claim was neither contrary
to nor an unreasonable application of Supreme Court law under § 2254(d)(1), and that the
state court’s decision was not based on an unreasonable determination of the facts in light
of the evidence presented in state court under § 2254(d)(2). (Id. at 75–80.) Respondents
argue this Court should not consider newly proffered evidence “unless and until it
concludes that Petitioner can satisfy the standards for evidentiary development” under 28
U.S.C. § 2254(e)(2).10 (Id. at 71 n.33.)
1. Exhaustion and Procedural Default
Chappell predicates this IATC claim on the failure to investigate and litigate the
same three juror issues raised in Claim 1 in state court. Chappell claims that proffered new
evidence11 fundamentally alters the claim considered by the state courts. This Court may
not consider evidence not presented to the state courts if Chappell, or his counsel, failed to
diligently develop the factual basis of the claim in state court. 28 U.S.C. § 2254(e)(2); see
Ramirez, 596 U.S. at 381; Michael, 529 U.S. at 435–36. “Diligence for purposes of the
10 Respondents correctly point out that Ramirez abrogated the Ninth Circuit’s holding in
Dickens that a court may consider new evidence in determining whether that evidence
fundamentally alters the claim considered by state courts and thereby render the
supplemented claim unexhausted and procedurally defaulted. See Hampton v. Shinn, 143
F.4th 1047, 1076 (9th Cir. 2025). Ramirez requires a petitioner to first satisfy § 2254(e)(2),
before a federal habeas court may consider evidence not presented to the state courts. Id.
(citing cases).
11 To the extent identified by Chappell, that evidence consists of declarations of former
habeas counsel and a habeas paralegal reflecting that one juror told them that she saw
Chappell in shackles at some point during trial, and another juror told them she felt coerced
to support a death sentence by the trial court’s instructions. (Doc, 103-4 at 186–88, Exs.
34, 35.)
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 24 of 140

~ 25 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
opening clause of § 2254(e)(2)(ii) depends upon whether the prisoner made a reasonable
attempt, in light of the information available at the time, to investigate and pursue claims
in state court; it does not depend . . . upon whether those efforts could have been
successful.” Michael, 529 U.S. at 435. Chappell does not argue that he, or PCR counsel,
diligently developed the factual basis of his underlying IATC claim in state PCR
proceedings.12 (Doc. 25 at 84.) Indeed, he contends that PCR counsel rendered ineffective
assistance by failing to further investigate and develop the factual basis of his IATC claim
in state court. (Id.; Doc. 87 at 40.) But as discussed in Michael, the negligent failure to
develop the factual basis of a claim in state court bars the consideration of new evidence
in habeas proceedings under § 2254(e)(2)(ii), Michael, 529 U.S. at 432, and there is no
Sixth Amendment right to the effective assistance of PCR counsel, Smith v. Idaho, 392
F.3d 350, 357 (9th Cir. 2004) (citing Coleman, 501 U.S. at 752; Poland v. Stewart, 169
F.3d 573, 588 (9th Cir. 2004)). The Court therefore concludes that it cannot consider the
newly proffered evidence.
Absent consideration of proffered new evidence, Chappell essentially concedes that
Claim 2(A)(3) is exhausted. Nevertheless, Chappell asserts that the PCR court did not
actually consider the merits of his properly exhausted IATC claims, including this one, and
that this Court should review those claims de novo. (Doc. 87 at 39.) In support of this
assertion, Chappell notes that the State did not address one of his properly exhausted claims
in its briefs, and therefore, there was no State position that could have been adopted as to
Claim 2(A)(3) by the PCR court. (Doc. 25 at 68.) Chappell also cites inconsistencies in the
PCR court’s order denying relief. Specifically, Chappell cites the PCR court’s statement
that: (1) it had both not received the Liles Affidavit regarding prevailing professional norms
for capital counsel and that it had received the Liles Affidavit; and (2) it granted Chappell’s
12 “Though lack of diligence will not bar an evidentiary hearing if efforts to discover the
facts would have been in vain, see § 2254(e)(2)(A)(ii), and there is a convincing claim of
innocence, see § 2254(e)(2)(B), only a prisoner who has neglected his rights in state court
need satisfy these conditions.” Id. at 435. Neither § 2254(e)(2)(A)(ii), nor § 2254(e)(2)(B)
appear to apply here.
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 25 of 140

~ 26 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
motion for extension of briefing deadlines after it had already denied his PCR petition.13
(Id. at 68–69.)
A federal habeas court must presume that a state court denied a claim on the merits,
even if it did not explain the basis for its decision. See Johnson v. Williams, 568 U.S. 289,
293 (2013); Richter, 562 U.S. at 98-99. A federal habeas court may only review the merits
of a claim de novo if the claim was properly exhausted and the state court “clearly” did not
reach the merits of the claim. Pirtle v. Morgan, 313 F.3d 1160, 1167–68 (9th Cir. 2002).
In denying Chappell postconviction relief, the PCR court stated that it:
couldn’t say it any better than the [S]tate has done, and this after much
reflection on what the court could add or change from the state’s analysis on
the remaining [un]precluded claims of error. Accordingly and for reasons as
stated by the state with respect to each above stated unprecluded claim of
error, the court finds that no colorable claim exists mandating an evidentiary
hearing. . . .In making its ruling the court finds with respect to the ineffective
trial and appellate counsel claims, petitioner has not presented by a
preponderance of the evidence either Strickland prong. He has not shown any
counsel’s performance was deficient under prevailing professional standards
or that he suffered prejudice as a result. . . .
(Doc. 70 at 13, Ex. OOOOO.) The court also stated that it found the precluded claims failed
on their merits. (Id.) Thus, the PCR court adopted the State’s positions regarding
Chappell’s properly exhausted IATC claims, and it concluded that Chappell had not made
out a colorable basis to establish either prong of Strickland on his exhausted IATC claims,
and it denied those claims on the merits.
The PCR court’s adoption of the State’s analyses of claims, including one claim that
the State had not addressed in its brief, does not rebut the presumption that the PCR court
denied relief on the merits of those claims. The PCR court stated that it reviewed the record,
specifically listing what it had reviewed, and explicitly found the properly exhausted IATC
claims failed on their merits. Further, the PCR court expressly found that Chappell’s
13 The PCR court subsequently vacated the granting of the extension motion. (Doc. 70 at
37, Ex. UUUUU.)
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 26 of 140

~ 27 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
exhausted IATC claims failed on their merits under each prong of Strickland. The PCR
court’s order granting the briefing extension appears nothing more than inadvertent, but in
any event, merely granting the motion does not clearly show that the PCR court did not
deny Chappell’s properly exhausted IATC claims on the merits.14 Similarly, the PCR
court’s inconsistent statements about the Liles’ Affidavit does not clearly show that the
PCR court did not deny Chappell’s properly exhausted IATC claims on the merits.
Moreover, the PCR court specifically denied the State’s request to not consider the Liles
exhibit, and it included the affidavit in the list of materials that it reviewed. (Doc. 70-2 at
3, Ex. OOOOO, at 2.) Chappell’s exhausted IATC claims are subject to review under
§ 2254(d).
2. Review under § 2254(d)
A defense attorney “has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S.
at 691. Counsel’s “particular decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy measure of deference to
counsel’s judgments.” Id. In reviewing counsel’s decision not to investigate, or further
investigate, a court should not use hindsight but instead assess the circumstances of
counsel’s “challenged conduct” from “counsel’s perspective at th[at] time.” Id. at 689.
a. Shackling
The three alleged juror issues arose during Chappell’s trial. With respect to Juror
1’s statement that the jury was being held after adjournment until Chappell was shackled
and left the court, trial counsel asked the court to designate Juror 1 an alternate. (R.T.
8/16/07, a.m., at 6.) The court refused but said that it would consider any proposed curative
14 At most, the PCR court’s inconsistent statements about the affidavit implicate only
whether the PCR court considered the affidavit in denying the exhausted IATC claims on
the merits. The inconsistent statements relate to the sufficiency of the court’s merits
review—not whether it considered the affidavit. In short, the PCR court’s conflicting
statements do not clearly establish that the PCR court did not consider the exhausted IATC
claims on the merits.
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 27 of 140

~ 28 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
instruction of the parties. (Id. at 6–7.) Trial counsel did not propose a curative instruction,
nor seek to interview jurors at the conclusion of the penalty phase, after the jury was polled.
In Deck v. Missouri, the United States Supreme Court held that “the Fifth and
Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a
trial court determination, in the exercise of its discretion, that they are justified by a state
interest specific to a particular trial.” 544 U.S. 622, 629 (2005). Accordingly, “where a
court, without adequate justification, orders the defendant to wear shackles that will be
seen by the jury, the defendant need not demonstrate actual prejudice to make out a due
process violation.” Id. at 635. The Supreme Court has not held that an inadvertent viewing,
by one or more jurors of a defendant in shackles, poses the same due process risks as the
visible shackling of a prisoner throughout trial. The Ninth Circuit, however, has “held that
visible shackling outside the courtroom—at least when the viewing is brief and
accidental—is not inherently prejudicial; instead, a due process violation occurs only if the
criminal defendant demonstrates actual prejudice.” Wharton v. Chappell, 765 F.3d 953,
964–65 (9th Cir. 2014). Courts in other cases have likewise found that the glimpse by a
juror or jurors of a shackled defendant as he is brought into the courtroom is not inherently
or presumptively prejudicial. See, e.g., Williams v. Woodford, 384 F.3d 567, 593 (9th Cir.
2004); Ghent v. Woodford, 279 F.3d 1121, 1133 (9th Cir. 2002); United States v. Olano,
62 F.3d 1180, 1190 (9th Cir. 1995). As the court in Wharton explained, one reason to
distinguish between “shackling in open court and shackling during transportation” is the
fact the jurors are aware that defendants may be in custody and that it is a regular practice
to handcuff inmates while they are being transported. 765 F.3d at 965 (citing, e.g., United
States v. Halliburton, 870 F.2d 557, 561 (9th Cir. 1989)).
Chappell fails to point to anything in the record that he was shackled throughout
trial or that his shackling was readily visible to jurors. Further, Chappell points to no
evidence before the state court, to support that any juror saw him shackled, or that any juror
informed trial counsel, or anyone else, that they had seen Chappell shackled. After Juror 1
was overheard telling other jurors they were delayed from leaving following adjournment
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 28 of 140

~ 29 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
for the day until Chappell was shackled and removed, the trial court instructed that
thereafter, Chappell would be removed from court after the jury had departed for the day.
(R.T. 8/16/07, a.m., at 7.) The trial court and prosecutor both observed that the jury was
not present when Chappell was shackled, suggesting that any viewing of Chappell in
shackles occurred as he was being transported to or from court. There is nothing to suggest
that if one or more jurors saw Chappell shackled was anything but fleeting and inadvertent.
Based on the above circumstances, the state court’s determination that trial counsel
had not acted deficiently by failing to investigate whether one or more jurors saw Chappell
shackled did not result in a decision that was contrary to, or involved in an unreasonable
application of, clearly established Supreme Court law. 28 U.S.C. § 2254(d)(1). The record
also does not support that the state courts made an unreasonable determination of the facts
in light of the evidence presented in state court proceedings.
But even if trial counsel performed deficiently by failing to investigate and litigate
the shackling issue, Chappell was not prejudiced by such deficiency. There was no showing
that any juror saw Chappell shackled, and the circumstances in which a juror could have
seen Chappell shackled (transported to or from court) would have been fleeting and
inadvertent and would not have otherwise caused inherent prejudice. Accordingly, the state
court’s determination that Chappell was not prejudiced by trial counsel’s alleged failure to
investigate whether one or more jurors saw Chappell shackled also did not result in a
decision that was contrary to, or involved an unreasonable application of, clearly
established Supreme Court law. The record also does not support that the state courts made
an unreasonable determination of the facts in concluding that Chappell was not prejudiced
by any alleged deficient performance by trial counsel in light of the evidence presented in
the state court proceedings. The Court will deny habeas relief as to Claim 2(A)(3)(i).
b. Juror Coercion (Claim 2(A)(3)(ii))
Chappell claims that trial counsel rendered ineffective assistance by failing to
investigate and litigate whether one, or more jurors, were coerced by the jury instructions,
or other jurors, into supporting a death sentence and thereby denied Chappell due process
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 29 of 140

~ 30 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
and a fair jury. For the reasons discussed in Claim 2(A)(3)(i) above, the Court will deny
Chappell’s request for evidentiary development as to this portion of Claim 2(A)(3).
A determination whether a jury instruction was coercive is based on the totality of
the circumstances, including the form of the instruction, the context in which it was given,
the time elapsed between when the allegedly coercive supplemental instruction was given
and the verdict, and other indicia of coercion. Lowenfield v. Phelps, 484 U.S. 231, 237
(1988). Lowenfield considered whether a supplemental jury instruction, a so-called Allen
charge, given after the jury reached a deadlock, was unduly coercive. Id. at 237–41. Even
then, the United States Supreme Court concluded that the instruction was not coercive
under the circumstances there. Id. at 241.
After learning that one juror sent a note stating that “many jurors” were making her
feel rushed, and that two other jurors had voiced a similar concern to the bailiff, Chappell’s
counsel asked the court to speak with the juror who had written the note to ascertain the
details and make a record or take other action, if warranted, which the prosecutor opposed.
(R.T. 10/31/07 at 6-8.) Chappell’s counsel also urged modifications of the court’s proposed
response to the juror. Chappell fails to allege or show what more trial counsel could have
done under the circumstances and the court’s decision not to interview the juror or adopt
counsel’s proposed responses to the note does not support that trial counsel acted
deficiently. Indeed, to some extent, the trial court modified its response to the juror based
upon trial counsel’s arguments. Cf. United States v. McGuire, No. 3:14-cr-00116-TMB-1,
2019 WL 5197554, at *9 (citing cases) (D. Alaska Oct. 15, 2019) (“[I]t is well-settled that
ineffective assistance of counsel stems from failure to make reasonable efforts and not from
failure to achieve desired results.”); Portillo-Diaz v. Ryan, CV-15-1172-PHX-JJT (JFM),
2016 WL 4611574, at *8 (D. Ariz. June 1, 2016) (noting that “an outcome determinative
view says nothing about the objective reasonableness of the actions undertaken by counsel
in the representation”).
Moreover, trial counsel asked the court to tell the juror that she should not “feel
rushed to judgment” and that she had a duty to reach her own conclusions about Chappell’s
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 30 of 140

~ 31 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
sentence. (Id. at 12.) The court, instead, told the jury that the court would give the jury the
time it needed to deliberate. (R.T. 11/1/07 at 6.) The decision of the court did not render
counsel’s assistance ineffective. Cf. Strickland, 466 U.S. at 689. After the jury returned its
verdict, trial counsel polled the jurors, all of whom avowed that the verdict was each juror’s
true verdict. (R.T. 11/14/07 at 6–7.)
Counsel also informed a pastor, to whom a juror had voiced concerns about
coercion, about what constituted juror coercion. (App. to PCR Pet., Attach. BB at 2.)
Counsel also sent the juror a letter asking to speak with her about such concerns. (App. to
PCR Pet., Attach. BB at 1–2.) But the state court record does not reflect that the juror
replied, or if she did, the result. Therefore, the PCR court reasonably, implicitly, presumed
that Counsel’s decision not to move for a new trial or to vacate the judgment was sound
trial strategy. Counsel could have reasonably believed that the pastor had relayed the
information on coercion to the juror and that the juror chose not to reply based on that
information. Further, without the juror’s statements, a motion for a new trial or to vacate
the judgment would have been unsuccessful. James, 24 F.3d at 27. The PCR court
reasonably found that trial counsel had not performed deficiently.
Chappell argues that by telling the jury that the court would accommodate the
jurors’ schedules and afford them the time they needed to deliberate, and telling the jury
that what would happen if the jury could not reach a unanimous verdict was irrelevant to
any eventual decision by the jury, created the impression that the jurors would be required
to continue to deliberate until it reached a unanimous verdict. Jurors are presumed to follow
the instructions given them by the court. Weeks v. Angelone, 528 U.S. 225, 234 (2000)
(citing Richardson v. Marsh, 481 U.S. 200, 211 (1987)). The trial court instructed the jury
to inform it if it could not reach a unanimous verdict. (R.T. 10/29/07 at 163.) The jury never
did so, thus undermining Chappell’s contention that the jury was coerced to reach a verdict
by the court’s instructions.
More significantly, the United States Supreme Court has not held that the
instructions given here are coercive. The Supreme Court has found coercion when a court
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 31 of 140

~ 32 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
polled the jury regarding how a jury is divided, see United States v. United States Gypsum
Co., 438 U.S. 422, 462 (1978), especially when a jury reached a verdict shortly thereafter,
Brasfield v. United States, 272 U.S. 448, 450 (1988). Those circumstances were not present
in this case.
The PCR court determined that trial counsel did not render deficient performance
by failing to investigate or litigate whether one or more jurors was coerced by the jury
instructions or other jurors, or any resulting prejudice to the defense. (Doc. 33, Exs. WWW
at 40-46 and OOOOO at 3.) Under the circumstances, the state court’s determination that
trial counsel had not acted deficiently by not further investigating whether one or more
jurors was coerced was neither contrary to, nor involved in an unreasonable application of,
clearly established Supreme Court law. 28 U.S.C. § 2254(d)(1), or that the state courts
made an unreasonable determination of the facts in light of the evidence presented in state
court proceedings. 28 U.S.C. § 2254(d)(2). Similarly, the state court’s determination that
Chappell was not prejudiced by any alleged deficient performance was neither contrary to,
nor involved in an unreasonable application of, clearly established Supreme Court law. 28
U.S.C. § 2254(d)(1), and the state courts did not make an unreasonable determination of
the facts in light of the evidence presented in state court proceedings. 28 U.S.C. §
2254(d)(2). The Court will deny this portion of Claim 2(A)(3).
c. Bailiff’s Interactions with Jurors (Claim 2(A)(3)(iii))
Finally, the state court’s denial of this portion of Claim 2(A)(3) did not result in a
decision that was contrary to, or involved an unreasonable application of, clearly
established Supreme Court law. At trial, counsel raised the issue of possible inappropriate
contact between the bailiff and two jurors, first by speaking to the bailiff, and then by
raising the issue with the court. (R.T. 10/25/07 at 75–77, 82.) The bailiff explained to
counsel that he (the bailiff) had been trying to keep a juror awake, after the juror had earlier
struggled. (Id.) The bailiff explained to the trial court that he had been returning break
requests to the jurors. (Id. at 76.) The court directed the bailiff not to communicate with
the jurors whatsoever (id. at 76–77) and instructed the jurors to address questions to the
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 32 of 140

~ 33 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
court and not to the bailiff (id. at 81–82). The court found that the jurors and the bailiff had
not discussed the case with each other. (Id. at 82.) Although relatives of Chappell claimed
on PCR that the bailiff continued to interact with the jurors, the state court record does not
reflect that any such communication concerned issues in the trial or that trial counsel had
any knowledge of that. (Doc. 53 at 38-42, Ex. CCCC, pt. 11, Attach. X–Y.) Based on the
record, counsel reasonably could have concluded that there was no evidence to warrant
further investigation. Claim 2(A)(3) will be denied.
d. Cumulative Prejudice of IATC Claims
Chappell also claims that the state courts failed to consider the cumulative effect of
his IATC claims. The United States Supreme Court has not specifically recognized the
doctrine of cumulative error as an independent basis for habeas relief. See Lorraine v.
Coyle, 291 F.3d 416, 447 (6th Cir. 2002) (“The Supreme Court has not held that distinct
constitutional claims can be cumulated to grant habeas relief.”); cf. Morris v. Sec'y Dep't
of Corr., 677 F.3d 1117, 1132 n.3 (11th Cir. 2012) (refusing to decide whether “under the
current state of Supreme Court precedent, cumulative error claims reviewed through the
lens of AEDPA can ever succeed in showing that the state court’s decision on the merits
was contrary to or an unreasonable application of clearly established law”); Villalobos v.
Ryan, No. CV 17-00633 PHX DJH (CDB), 2021 WL 6883076, at *9–12 (D. Ariz. May 20,
2021). Because Supreme Court precedent does not recognize the doctrine of cumulative
error, and because this Court otherwise determines herein that no prejudice resulted from
the IATC errors alleged, the claim of cumulative prejudice is meritless.
III. CLAIMS 2(A)(4), 3, AND 4(B)
In Claim 2(A)(4), Chappell alleges that trial counsel rendered ineffective assistance
by failing to move to suppress Chappell’s press statements on the same grounds alleged in
Claim 3. (Doc. 25 at 85–86.) In Claim 3, Chappell alleges that his Sixth Amendment right
to counsel was violated by jail staff allowing the jail press conference while Chappell was
taking psychiatric medications and was on suicide watch, had not yet conferred with
appointed counsel, and without first notifying appointed counsel. (Id. at 116–19.) In Claim
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 33 of 140

~ 34 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4(B), Chappell asserts that appellate counsel rendered ineffective assistance by failing to
claim on direct appeal that the trial court erred by admitting Chappell’s press statements.
(Id. at 122.)
A. Additional Background
The day after Devon drowned, Chappell, 225 P.3d at 1180, ¶ 6, Chappell spoke with
detectives at a local police station (Doc. 120-1 at 62–206, Tr. Ex. 150). Chappell admitted
to detectives that he had choked Devon in December 2003 and had subsequently drowned
him. (Doc. 120-1 at 62–183.) He was arrested and jailed that same day. (See Doc. 121-3 at
13–14, Tr. Ex. 346.) Chappell denied being suicidal and was placed in an isolation cell for
his safety. (Id. at 11.)
On March 13, 2004, jail psychiatric staff prescribed antipsychotic and anxiety
medications and a suicide blanket for Chappell. (Id. at 12.) Chappell was removed from
suicide watch that day. (Id. at 18.) He was noted to be sleeping, and when awake, he
“responded to questions coherently, [with] logical answers.” (Id.) A nurse noted no
behaviors indicating that Chappell was a danger to himself or others. (Id.) The next day,
Sunday, March 14, 2004, Chappell appeared in court, where the court ordered him held
without bond and appointed the Legal Advocate’s Office to represent him. (R.O.A. 5 and
23.) Correctional Health Services (CHS) ordered that Chappell be held on suicide watch
from 4 a.m. to noon, and again between 6 to 10 p.m. (Doc. 121-3 at 9–10.)
Although the sequence of events is unclear, on Monday, March 15, a direct criminal
complaint was filed against Chappell charging him with first degree murder. That
afternoon, jail staff removed Chappell from a suicide-watch cell, placing him in
administrative segregation, before taking him to a room where 15 to 20 media
representatives were gathered. (R.T. 8/9/07 at 150–52; Doc. 120-1 at 44–59, Tr. Ex. 142.)
Chappell was still taking three psychiatric medications and had not yet conferred with
appointed counsel. (Trial Ex. 346 at 100606.) An investigator for the Maricopa County
Attorney’s Office arrived at the gathering and subsequently recorded the ensuing
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 34 of 140

~ 35 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
conference.15 (R.T. 8/9/07 at 150–52; Doc. 120-1 at 44–59.) Chappell answered questions
from media representatives and implicated himself in Devon’s drowning. (R.T. 8/9/07 at
150–51; Doc. 120-1 at 44–59.)
While responding to press questions, Chappell admitted that in December 2003, he
had held Devon “by the throat,” shortly after beginning a bipolar medication that made him
irritable. (Doc. 120-1 at 49, 51–52.) He also admitted drowning Devon. (Id. at 46–50, 51.)
Chappell described walking Devon to the pool gate, which “was propped open.” (Id. at 52.)
He further described that when they reached the pool, Devon “turned around,” “looked up
at [Chappell],” and “put[] his arms up towards [Chappell] like he wanted to be picked up.”
(Id.) Chappell described picking Devon up and “put[ting] him in the pool.” (Id.) Chappell
stated that after putting Devon in the water, he “wanted to change [his] mind” but “figured
it[ had] already gone this far,” and if he “back[ed] down now,” he would be punished. (Id.
at 48–49.) Chappell stated that Devon tried to stay afloat and tread water, but drowned in
“less than a minute,” or perhaps “less than 30 seconds.” (Id. at 53.) Chappell claimed that
Kristal had told him to kill Devon because she wanted “a clean start” without either
Chappell or Devon. (Id. at 45–46.) Chappell also claimed that Devon would have still been
alive if CPS had placed Devon in foster care after Chappell reported that Kristal had
smothered Devon with a pillow and had often hit Devon in front of Chappell’s friends. (Id.
at 56.)
In explaining why he was speaking to the press, Chappell said he had nothing to
hide, and:
From the very beginning, I mean, as soon as the detectives starting and asking
me this and asking me that, I just realized it wasn’t right. I mean, I was honest
with them. When I choked Devon the first time, there wasn’t a moment in
my mind that I thought I should lie about it. I was open and honest then, too.
I mean it’s not that I’m upset with Kristal. It’s not that, um, I’m not upset
with anybody. It’s just – I am – I feel sick to my stomach every night before
15 At trial, the investigator testified that he had been informed by an unidentified person
that Chappell had asked to meet with the press. (R.T. 8/9/07 at 150–52; Doc. 120-1 at 44–
59, Ex. 142.)
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 35 of 140

~ 36 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
I go to bed. I can’t sleep hardly without the help of some meds. Um . . .
. . .
. . . I’m sure there’s about half the city of Mesa wondering why I did this and
if [I] could at all just give them an explanation for what I did, that would be
it.
(Id. at 50–51.) He further explained,
For one I can’t keep a secret. And, uh, two, and yeah, I wanted to get caught.
I can’t – I wouldn’t be able to live with myself. All the – the night that it
happened, people, I stayed up and – the night that it happened, I laid in bed
and I never sweat so much in my life. I took a shower and got back into bed.
And that was going on around 5:30 in the morning. Still sweating. Still not
able to sleep. Still thinking – every time I closed my eyes, he was looking at
me straight in the eyes as he was in the water. Am I – I glad that I [got]
caught? Yeah I am. Am I glad that I’m here? Yeah I am because now it’s my
turn to face up to what’s happened.
(Id. at 55.) Once the press conference concluded, jail staff returned Chappell to suicide
watch; according to jail medical notes, Chappell made statements to a tv reporter that he
did not want to live and just wanted to die. (Id. at 21.) About a week later, Chappell was
indicted with child abuse for the December 2003 choking incident and first-degree murder.
(R.O.A. 1 and 10.) Chappell pleaded not guilty. (R.O.A. 23.)
At the guilt phase of trial, the County Attorney’s investigator who attended the press
conference testified about the conference and that he had heard that Chappell had asked to
speak with the press; the defense did not question the County Attorney investigator. (R.T.
8/9/07 at 148, 150, 154–55.) Without objection, the trial court admitted video of the
conference, which was shown to the jury. (Id. at 154; see Ex. 131.) Chappell now concedes
that he did not challenge the press-conference evidence on direct appeal. (Doc. 25 at 116–
17.)
On PCR, Chappell claimed that trial counsel rendered ineffective assistance by
failing to move to suppress “inculpatory statements made by [Chappell] during his March
15, 2004 ‘Press Conference[.]’” (Doc. 42-3 at 4, 14-21, Ex. WWW.) He argued that the
State coerced his statements to the press where he was not again provided Miranda
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 36 of 140

~ 37 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
warnings, and the press conference was held prior to Chappell meeting with appointed
counsel, in violation of the Fifth and Sixth Amendments. (Id. at 18, 21.) He also argued
that “he was under the influence of mind-altering drugs administered” by the State at the
time of the conference, and before conferring with appointed counsel, the State (or County
staff) facilitated the press conference, and failed to notify appointed counsel before taking
Chappell to the press conference.16 (Id.) He also argued that he was prejudiced by trial
counsel’s failure to challenge the admission of press conference evidence. (Id.)
In response, the State maintained that trial counsel neither acted deficiently, nor
prejudiced Chappell. (Doc. 54-6 at 40–44, Ex. RRRR.) The State claimed that Chappell
voluntarily spoke to the press, and that he was not “in a confused state,” and it denied that
it played any role in setting up the conference. (Id. at 42–43.) Finally, the State argued that
Chappell was not prejudiced by the admission of the press conference evidence because he
had confessed to police prior to his arrest, evidence of which was also admitted into
evidence. (Id. at 44.) In his reply, Chappell requested an evidentiary hearing to determine
who had facilitated the press conference. (Doc. 69-5 at 17–27, Ex. IIIII.)
The PCR court summarily denied Chappell’s IAC claim, adopting the State’s
arguments, as discussed above. (Doc. 70-2 at 3, Ex. OOOOO.) Chappell petitioned for
review by Arizona Supreme Court, which was denied. (Doc. 72-3 at 11-13, Ex. HHHHHH;
Doc. 72-6, Ex. KKKKKK).
B. Claim 2(A)(4)
Chappell alleges that trial counsel rendered ineffective assistance by failing to seek
to suppress Chappell’s press statement. (Doc. 25 at 85–86.) Chappell presented this claim
to the state courts, and it is exhausted. As discussed above in connection with Claim
2(A)(3), the state courts denied Chappell’s exhausted IATC claims on the merits. Chappell
contends that the state court denial of this claim was contrary to and an unreasonable
application of clearly established law “at the time of Chappell’s arrest.”17 (Doc. 25 at 94.)
16 Chappell first met with counsel on March 16, 2004. (PCR R.O.A. 105, Ex. V at 1.)
17 In his Petition, Chappell argued that government efforts to elicit information from him
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 37 of 140

~ 38 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
He contends that after he was appointed counsel, and while on psychiatric medications and
suicide watch, “the State arranged for him to provide a statement to the media,” without
notifying his appointed counsel. (Doc. 25 at 95.) He contends that trial counsel should have
filed a motion to suppress his press statement on the same basis as alleged in Count 3. He
contends that had a motion to suppress been filed, there was a reasonable probability that
the evidence would have been suppressed, and the outcome of the trial would have been
different if that evidence had been suppressed.
The Sixth Amendment provides, “In all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S. Const. amend.
VI. This right does not attach until the prosecution starts. Rothgery v. Gillespie Cty., 554
U.S. 191, 198 (2008); McNeil v. Wisconsin, 501 U.S. 171, 175 (1991). The prosecution
starts at “the initiation of adversary judicial criminal proceedings—whether by way of
formal charge, preliminary hearing, indictment, information, or arraignment.” Rothgery,
554 U.S. at 198 (internal quotations omitted). “[A] criminal defendant’s initial appearance
before a judicial officer, where he learns the charge against him and his liberty is subject
to restriction, marks the start of adversary judicial proceedings that trigger attachment of
the Sixth Amendment right to counsel.” Id. at 199 and 213 (2008) (citing Michigan v.
Jackson, 475 U.S. 625, 629 n.3 (1986), overruled on other grounds by Montejo v.
Louisiana, 556 U.S. 778, 797 (2009); Brewer v. Williams, 430 U.S. 387, 399 (1977)).
“The [initiation] rule is not mere formalism, but a recognition of the point at which
the government has committed itself to prosecute, the adverse positions of government and
defendant have solidified, and the accused finds himself faced with the prosecutorial forces
of organized society, and immersed in the intricacies of substantive and procedural criminal
law.” Id. (internal quotations and citation omitted).
at the relevant time violated his Sixth Amendment rights under Michigan v. Jackson, 475
U.S 625, 629-30 (1986). In 2009, the Supreme Court overruled Jackson. Montejo v.
Louisiana, 556 U.S. 778 (2009). Chappell seemingly insinuates that he can obtain habeas
relief for violation of an overruled case.
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 38 of 140

~ 39 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Moreover, the Sixth Amendment right to counsel “is ‘offense specific.’” Texas v.
Cobb, 532 U.S. 162, 165 (2001) (quoting McNeil v. Wisconsin, 501 U.S. 171 (1991)). That
is, “a defendant’s statements regarding offense for which he had not been charged were
admissible notwithstanding the attachment of his Sixth Amendment right to counsel on
other charged offense.” Id. at 168 (citing McNeil, 501 U.S. at 176).
As to the first-degree murder accusation against Chappell, the Sixth Amendment
right to counsel attached to Chappell at his initial appearance in court, where the trial court
informed him of that accusation and restricted his liberty by ordering him held in jail
without bond. (R.O.A. 5 at 23.) Respondents do not assert otherwise. That right, however,
did not attach to the accusation of child abuse against Chappell. At his initial appearance,
the court did not notify him of the child-abuse allegation or restrict his liberty because of
it. (See id.) Nor did the direct complaint filed on the day of the press conference allege such
abuse. (See R.O.A. 1.) The right as to the child-abuse accusation did not attach until a grand
jury charged him with that crime a week after the press conference—the initiation of
adversary judicial criminal proceedings as to that charge. (See R.O.A. 10.) For this reason,
a motion to suppress Chappell’s press statements about the December 2003 choking
accusation that led to the child-abuse charge would have lacked merit. Chappell’s trial
counsel thus did not perform deficiently or prejudice Chappell by not filing it. The PCR
court reasonably found as such.
The PCR court also reasonably found that counsel did not perform deficiently or
prejudice Chappell by not moving to suppress Chappell’s press statements regarding the
alleged first-degree murder accusation.
“Once [the Sixth Amendment right to counsel] attaches, the government may no
longer initiate interrogation of a suspect, and even a written waiver of the right to counsel
is invalid.” United States v. Covarrubias, 179 F.3d 1219, 1223 (9th Cir. 1999) (citing
Jackson, 475 U.S. at 635–36), abrogated on other grounds by Cobb, 532 U.S. 162. The
PCR court reasonably found that Chappell—not the State—initiated the press conference.
And there is no clearly established federal law that states that initiation includes setting up
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 39 of 140

~ 40 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
a press conference. Therefore, the PCR court reasonably found that the State did not violate
Chappell’s Sixth Amendment right to counsel.
Chappell argues that he involuntarily spoke to the press because he was on suicide
watch moments before and after he made them and was on medication. (Doc. 25 at 86.)
“Involuntary or coerced confessions are inadmissible at trial,” Brown v. Horell, 644 F.3d
969, 979 (9th Cir. 2011) (citing Lego v. Twomey, 404 U.S. 477, 478 (1972)), as their
admission violates a defendant’s Fourth Amendment right to due process,” id. (citing
Jackson v. Denno, 378 U.S. 368, 385-86 (1964)). Mental, rather than physical coercion can
render a confession involuntary. Blackburn v. State of Alabama, 361 U.S. 199 (1960).
The state-court record does not show that Chappell participated in the press
conference involuntarily. He was responsive in all his answers. He explained why he
wanted to come before the media. No one in the media voiced any concerns about his
appearance—only why he wanted to admit to the murder in the first place. There is no
evidence that the psychiatric medication would overcome his personal will. Moreover, he
seemed to scoff at the fact that he was placed under suicide watch. He did not even mention
that he was suicidal at the press conference, even though he was open about it at other
times. In fact, he seemed confident that he was not fully at fault for Devon’s murder.
Although the record is unclear as to whether Chappell was told to attend the press
conference, was given the option of the press conference, or whether Chappell requested
the press conference, the record also does not state—and Chappell does not appear to
suggest—that the jail forced him to participate. Nor did his mental status overcome his
will.
Because a motion to suppress Chappell’s press statements would have lacked merit,
his trial counsel did not render ineffective assistance by not moving as such. See Premo v.
Moore, 562 U.S. 115, 124 (2011) (failure to move to suppress unlikely to succeed, in
general, is not ineffective assistance of counsel); see also Lowry v. Lewis, 21 F.3d 344, 346
(9th Cir. 1994) (holding that failure to move to suppress which would “be meritless on the
facts and the law” is not ineffective assistance of counsel); Petrocelli v. Baker, 869 F.3d
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 40 of 140

~ 41 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
710, 723 (9th Cir. 2017) (“A failure to make a motion to suppress that is unlikely to succeed
generally does not constitute ineffective assistance of counsel.”); Mahrt v. Beard, 849 F.3d
1164, 1169-72 (9th Cir. 2017) (“hold[ing] . . . that the state court could reasonably have
concluded that Mahrt’s counsel did not” ineffectively assist Mahrt in not moving to
suppress evidence,” finding that counsel should have moved to suppress, as there “was at
least a chance that such a motion would have succeeded” but that “[i]t would have been
reasonable for the state courts to conclude that a motion to suppress, if brought, would
likely have been denied”); Zapien v. Martel, 849 F.3d 787, 796 (9th Cir. 2016) (holding
that trial counsel did not ineffectively assist petitions when “[c]ompetent counsel could
reasonably have concluded that moving to exclude [evidence] on the grounds Zapien now
suggests would have seemed frivolous”). There is no clearly established federal law that
medication and suicidal ideations renders statements per se involuntary.
Finally, even if constitutional error occurred and Chappell’s trial counsel was
deficient by not moving to suppress the press conference under Chappell’s Sixth
Amendment right to counsel or on voluntariness grounds, such deficiency did not prejudice
him. For Chappell’s statements to the press were merely cumulative in describing the abuse
of Devon (choking incident) and the first-degree murder of Devon (forcible drowning) of
his statements to detectives—which Chappell no longer challenges. See Bradford v. Davis,
923 F.3d 599, (9th Cir. 2019)\; Padilla v. Terhune, 309 F.3d 614, (9th Cir. 2002); Mata v.
Ricketts, 981 F.2d 397, (9th Cir. 1991); Cooper v. Taylor, 103 F.3d 366, (4th Cir. 1996).
Like Chappell’s statements to the press, Chappell’s statements to investigators
detailed the events leading up to the child’s murder. Therefore, even without his video
confession from the press conference, the jury still read his detailed confession at the police
station. The Court cannot say that on this record that the press statements had a substantial
and injurious effect or influence on the verdict, in light of the statements to investigators.
At most, there was a reasonable possibility of such effect or influence but that will not pass
the Brecht test.
The Court will deny Claim 2(A)(4).
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 41 of 140

~ 42 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
The state court’s determination that trial counsel neither rendered deficient
performance, nor prejudiced Chappel by failing to seek suppression of the press
conference, did not result in a decision that was contrary to, or involved an unreasonable
application of, clearly established Supreme Court law, 28 U.S.C. § 2254(d)(1), and did not
rely on an unreasonable determination of the facts in light of the evidence presented in state
court, 28 U.S.C. § 2254(d)(2).
The Court will deny Claim 2(A)(4).
C. Claim 3
Chappell alleges that his Sixth Amendment right to counsel was violated by jail staff
facilitating the press conference, before Chappell had conferred with appointed counsel
and without notifying appointed counsel, and while Chappell was taking three psychiatric
medications, and had been on suicide watch. (Id. at 116–119.) Chappell also seeks
evidentiary development in support of Claim 3. (Doc. 105 at 43–44.) The parties agree that
this claim was not presented to the state courts and that it is procedurally defaulted. (Doc.
25 at 116–17; Doc. 33 at 106.)
Chappell argues the procedural default is excused by the ineffective assistance of
his PCR counsel under Martinez. (Doc. 25 at 117; Doc. 87 at 66.) But the ineffective
assistance of PCR counsel can only excuse the procedural default of an IATC claim.
Martinez (Ernesto) v. Ryan, 926 F.3d 1215, 1225 (9th Cir. 2019); Pizzuto, 783 F.3d at
1177; Hunton, 732 F.3d at 1126–27. To the extent he also argues that Claim 3’s procedural
default is excused by the ineffective assistance of his appellate counsel, this argument fails.
PCR counsel did not raise such an ineffective-assistance-of-counsel. See Edwards v.
Carpenter, 529 U.S. 446, 453 (2000). Claim 3 otherwise lacks merit. (See Claim 2(A)(4),
supra.)
Chappell further argues that because the state courts did not deny this claim on the
merits, it is subject to de novo review by this Court. (Doc. 87 at 67.) As stated above, a
federal habeas court may only review the merits of a claim de novo if the claim was
properly exhausted and the state court “clearly” did not reach the merits of the claim. Pirtle,
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 42 of 140

~ 43 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
313 F.3d at 1167–68. Because this claim was never presented to the state courts, much less
denied, de novo review does not apply.
Chappell requests evidentiary development in support of this claim. As described
above, “a federal court may not hold an evidentiary hearing—or otherwise consider new
evidence” in support of a procedurally defaulted claim unless the “stringent requirements”
of 28 U.S.C. § 2254(e)(2) are met. Shinn, 596 U.S. at 381 (emphasis added). Under §
2254(e)(2)(i), a federal habeas court may only consider new evidence in support of a
procedurally defaulted claim if the petitioner shows that “(A) the claim relies on (i) a new
rule of constitutional law made retroactive to cases on collateral review by the Supreme
Court, which was previously unavailable; or “(ii) a factual predicate that could not have
been previously discovered through the exercise of due diligence; and “(B) the facts
underlying the claim would be sufficient to establish by clear and convincing evidence that
but for constitutional error, no reasonable factfinder would have found the [petitioner]
guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2).
Claim 3 does not rely on a new rule of constitutional law made retroactive to cases
on collateral review that was previously unavailable, or upon a factual predicate that could
not have been discovered through the exercise of due diligence, and the facts underlying
the claim are not sufficient to establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would have found Chappell guilty of the
underlying offenses.
Accordingly, Chappell’s request as to evidentiary development as to this claim will
be denied, and the Court will deny relief on Claim 3.
D. Claim 4(B)
Chappell argues that appellate counsel rendered ineffective assistance by failing to
challenge the State’s “deprivation” of his Sixth Amendment right to counsel at issue in
Claim 3. (Doc. 25 at 122.) Chappell acknowledges that this claim is procedurally defaulted
but argues that he can overcome the default based upon the alleged ineffective assistance
of PCR counsel, who failed to raise “this substantial claim” under Martinez, 566 U.S. 1
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 43 of 140

~ 44 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
and Nguyen v. Curry, 736 F.3d 1287 (9th Cir. 2013), in which the Ninth Circuit expanded
the Martinez exception to a PCR counsel’s failure to raise a claim of ineffective assistance
of appellate counsel. (Id.) But in Davila, the United States Supreme Court effectively
abrogated Nguyen by expressly rejecting such an expansion of the Martinez exception.
Davila, 582 U.S. at 529-31; see also Bejarano v. Reubart, 136 F.4th 873, 899 n.9 (9th Cir.
2025) (acknowledging the abrogation and stating the Martinez exception “does not apply
to the procedurally defaulted appellate IAC claims”). Because Claim 4(B) is procedurally
defaulted, and Chappell has not shown cause and prejudice to excuse the default, Claim
4(B) will be denied.
IV. Claims 2(A)(1) and 2(A)(2)
A. Claim 2(A)(1)
In Claim 2(A)(1), Chappell alleges that trial counsel rendered ineffective assistance
at the guilt phase by failing to investigate and present a viable defense to premeditated
murder under State v. Christensen, 628 P.2d 580, 582-83 (Ariz. 1981) (in banc), which
held that a defendant charged with first-degree premeditated murder could present expert
and non-expert opinion to establish that a defendant had a character trait of impulsivity to
negate premeditation. See State v. Leteve, 354 P.3d 393, 401 (Ariz. 2015) (“[A] defendant
who can show that he has a character trait for acting without reflection presents a fact that
makes it more likely that he acted impulsively.”). Chappell argues that evidence of his
impulsivity would have supported a lesser-included offense instruction to the premeditated
murder count, which if successful, would have alleviated the risk of a death sentence. (Doc.
25 at 72–78.) Chappell asserts that he raised this claim on PCR, that while the PCR court
listed his other claims, it omitted this claim, and that the PCR court therefore did not rule
on the claim’s merits. (Id. at 72.) He claims that he is now entitled to de novo review by
this Court. (Id.) Chappell also requests evidentiary development in support of this claim.
(Doc. 105 at 29.)
Respondents concede the claim is exhausted but contend the PCR court denied the
claim on the merits and that Chappell is not entitled to relief under § 2254(d).
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 44 of 140

~ 45 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1. Additional Background
During the guilt and penalty phases, family and friends testified about Chappell’s
impulsive behavior. (R.T. 9/26/07 at 142; R.T. 10/17/07 at 142.) At the guilt phase,
regarding the child abuse count, Dr. John Kennedy testified about the effects of Wellbutrin,
which Chappell was taking at the time of the December 2003 choking incident and noted
that records reflected Chappell’s impulsive character. (R.T. 8/20/2007 at 95.) At the
penalty phase, Chappell’s treating psychiatrist, Dr. Gronley, testified that Chappell had
impulsive traits, likely due to ADHD, or possibly to other personality-related mental
illnesses. (R.T. 10/10/07 at 10–11, 22–23, 40, 46.) Chappell’s treating psychologist, Dr.
Gourley, also testified that Chappell “had a lot of impulsive behavior.” (R.T. 10/16/07 at
83.) The State’s forensic psychiatrist, Elizabeth Kohlhepp, M.D., testified that Chappell
exhibited impulsivity—a symptom of personality disorders with which she diagnosed
Chappell. (R.T. 10/23/07 at 38; see also R.T. 10/23/07 at 40, 109.)
In addition, at trial, various witnesses testified about several stressors on Chappell
in the days and weeks prior to the killing. In state PCR proceedings, Dr. Joseph Wu, a
physician specializing in neuroimaging ordered brain imaging finding abnormalities in the
“frontal lobe, with significant atrophy in forebrain parenchyma bilaterally worse on the
right.” (PCR R.O.A. 104, Ex. U at 10.) “The frontal lobe is the portion of the brain which
is involved in higher order cognitive and emotional processing,” and normally functioning
frontal lobes allow an individual to control aggressive impulses, while one with
dysfunctional frontal lobes will act more impulsively. (Id.)
2. Exhaustion
Chappell alleges that defense counsel failed to investigate and present a viable
defense to premeditated murder by developing and presenting additional evidence of his
impulsivity, and the impact of extreme stressors in the days and weeks prior to the killing,
both of which would have tended to negate premeditation, and would have entitled him to
a lesser-included offense instruction if sufficiently supported. (Doc. 25 at 88, citing State
v. Whittle, 752 P.2d 489, 492 (Ariz. App. 1985) (dicta stating that in a capital case the court
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 45 of 140

~ 46 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
must instruct on lesser-included offenses that the evidence will support, citing State v.
Clabourne, 690 P.2d 54 (1984)). Chappell contends that while he presented this claim to
the state courts on PCR and his petition for review, he claims the state courts did not deny
this claim on the merits. (Doc. 25 at 72.) He notes that the PCR court omitted this claim
from a list enumerating Chappell’s IATC claims and argues that the PCR court overlooked
this claim, rendering it not subject to review under § 2254(d). (Id.) Respondents contend
that under controlling law, this Court must presume that the claim was denied on the merits,
even if the PCR court did not specifically mention the claim. (Doc. 33 at 57–58, citing
Johnson, 568 U.S. at 293.)
Chappell raised Claim 2(A)(1) in state court, and the parties agree that the PCR
court omitted this claim from its enumerated list of claims in denying Chappell’s PCR
petition. (Docs. 25 at 81; Doc. 33 at 58.) Chappell argues, however, that the PCR court
failed to rule on the merits of this claim, citing the omission of the claim from the
enumerated list. (Doc. 25 at 81.) Respondents argue that the PCR court’s more general
ruling denying Chappell’s claims was not limited to the enumerated claims, noting that the
PCR court concluded that Chappell had failed to prove either prong of Strickland as to his
IATC claims. (Doc. 33 at 58.)
As discussed above in connection with Claim 2(A)(3), a federal habeas court must
presume that a state court denied a claim on the merits, even where it did not specifically
address a claim, but did specifically address others. Johnson, 568 U.S. at 301, Richter, 562
U.S. at 98–99. The court may only review the merits of an exhausted claim de novo if the
state courts “clearly” did not reach the merits of the claim. Pirtle, 313 F.3d 1160, 1167–68
(9th Cir. 2002). Given the PCR court’s express statement that Chappell failed to establish
either prong of Strickland as to his exhausted IATC claims, Chappell has not established
that the state courts “clearly” failed to reach the merits of this claim. The Court finds that
this claim is exhausted and that the state courts denied this claim on the merits. It is
therefore subject to review under § 2254(d).
//
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 46 of 140

~ 47 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3. Merits
As noted above, Chappell requests evidentiary development in support of this claim,
specifically, an expert report of Sean O’Brien on the standard of care for defense counsel
in a capital case and a November 14, 2006 defense-team memorandum, to show that
defense counsel recognized prior to trial that if they relied on allegations that Kristal was
responsible for the murder, they risked losing credibility with the jury, and did not come
up with an alternative defense theory. (Doc. 105 at 25–26.) This claim does not rely on a
new rule of constitutional law under § 2254(e)(2)(A)(i), and Chappell does not assert, nor
does it otherwise appear, that the factual predicate for this claim could not have been
previously discovered through the exercise of due diligence or that the facts underlying the
claim would be sufficient to establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would have found him guilty. Accordingly,
Chappell’s request for evidentiary development will be denied.
The state courts denied this claim without explaining the basis for its decision but
more generally stating that Chappell had shown neither deficient performance nor
prejudice as to his IATC claims. Respondents argue, and the Court agrees, that reasonable
counsel could have chosen not to present a Christensen defense and request a lesser-
included instruction in light of the facts of the crime. (Doc. 33 at 59.) Chappell had admitted
to both police, and to the press, that he killed Devon, and after having hours to reflect
before doing so. Such admissions clearly supported that Chappell had not acted impulsively
when he killed Devon. See Chappell, 236 P.3d at 1180-81. (Doc. 120-1 at 44–59, 62–206,
Tr. Exs. 142, 150, 153.) As Respondents argue, Chappell’s admissions undermined a
Christensen defense, and his defense counsel did not perform deficiently. Defense counsel
presented evidence of Chappell’s possible impulsivity character trait in connection with a
voluntary intoxication defense to the child abuse charge, and alternatively proposed that
Devon might have accidentally drowned. (R.T. 8/27/07 at 61–111.) They addressed
Chappell’s admissions by suggesting that he might have falsely confessed to “take the fall”
for Kristal, citing Chappell’s immaturity, impulsiveness, and mood swings. (Id. at 105,
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 47 of 140

~ 48 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
111.)
Under circumstances where Chappell had admitted to the police and to the press
that he had drowned Devon and admitted facts strongly inconsistent with an impulsiveness
defense, the decision not to proffer a Christensen defense was not objectively
unreasonable. Chappell stated that Kristal had suggested that he drown Devon hours before
Chappell returned from his parents’ home to her complex to do so, bringing a rock to prop
open the pool gate to create an appearance that Devon had wandered into the pool and
drowned, and then returned to the pool to leave one of Devon’s toys in the pool to support
that appearance. (Trial Exs. 142, 150, 153.) For analogous reasons, the defense was not
prejudiced by the failure to present a Christensen defense.
The state court’s denial of this claim was neither contrary to, nor involved an
unreasonable application of, clearly established Supreme Court law. 28 U.S.C.
§ 2254(d)(1). Similarly, Chappell has not established that the state courts made an
unreasonable determination of the facts in light of the evidence presented in state court. 28
U.S.C. § 2254(d)(2). The Court will deny this claim.
B. Claim 2(A)(2)
Chappell alleges trial counsel rendered ineffective assistance by failing to
investigate and present expert medical evidence to undermine or refute the State’s expert,
who testified that the December 2003 choking incident had endangered Devon’s life or
risked serious injury, a necessary element to prove child abuse, which was the qualifying
offense to seek a death sentence. (R.O.A. 10.) Chappell further alleges that such evidence,
coupled with evidence that Chappell’s acts were involuntary due to the effects of
Wellbutrin, would have established a reasonable probability that the jury would not have
found Chappell guilty of child abuse beyond a reasonable doubt. (Doc. 25 at 88.) Chappell
concedes the claim is procedurally defaulted but argues that PCR counsel rendered
ineffective assistance by failing to present this claim in PCR proceedings, which establishes
cause to excuse the default under Martinez. (Doc. 25 at 79; Doc. 87 at 36–39.)
Respondents agree the claim is procedurally defaulted, but dispute that the alleged
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 48 of 140

~ 49 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ineffective assistance of PCR counsel excuses the default under Martinez and further
argues that even if it did, the claim fails on the merits. (Doc. 33 at 62.)
Chappell requests evidentiary development in support of this claim and to show
cause under Martinez.18 Claim 2(A)(2) is procedurally defaulted and it does not rely on “a
new rule of constitutional law made retroactive to cases on collateral review by the
Supreme Court, which was previously unavailable.” 28 U.S.C. § 2254(e)(2)(i). Nor has
Chappell argued or shown that this claim relies on a factual predicate that could not have
been previously discovered through the exercise of due diligence, and that the facts
underlying it are not sufficient to establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would have found Chappell guilty of child
abuse. Finally, the Court may not consider non-record evidence in assessing whether the
ineffective assistance of PCR counsel excuses the procedural default. See Ramirez, 596
U.S. at 381. Accordingly, Chappell’s request for evidentiary development as to this claim
will be denied.
1. Additional Background
The December 10, 2003 choking incident was the predicate offense for seeking a
death sentence on the murder count. At the time of the incident, Chappell was at his parents’
home with Devon, whose leg was in a cast. (Doc. 120-3 at 40, Tr. Ex. 327 at 21.) Chappell
took Devon into a bedroom to change his diaper; while Chappell was trying to change the
diaper when Devon began kicking and screaming (Id.) As Devon continued kicking and
18 Chappell seeks Devon’s complete medical records for review by Dr. Michael Weinraub
about other potential causes of Devon’s petechial bruising and to submit Dr. Weinraub’s
report opining that Devon’s petechiae was uncharacteristic of strangulation. (Doc. 105 at
26–27.) He also seeks to submit Sean O’Brien’s report concerning defense counsel’s duty
to further investigate other possible child abuse, a copy of an April 12, 2005 memo to
defense counsel about problems with asserting an alleged reaction to Wellbutrin as part of
an involuntary intoxication defense to count 2, appellate counsel’s letter to PCR counsel
citing potential issues relevant to arguing that involuntary intoxication caused Chappell to
choke Devon, absent expert testimony, declarations of PCR counsel, and PCR counsel
documents to help demonstrate PCR counsel performed deficiently. (Id. at 27–29.)
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 49 of 140

~ 50 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
resisting, Chappell pressed down on his shoulders and told him to stop. (Doc. 120-4 at 12,
Tr. Ex. 329 at 11.) Chappell stopped pressing when Devon’s face turned red, with a
shocked look. Chappell, 225 P.3d at 1180. Based on Devon’s reaction, Chappell assumed
that he had been pushing too hard on Devon’s chest. (Doc. 120-4 at 12–13, Tr. Ex. 329 at
11–12.) Chappell called Kristal at work and told her that he had hurt Devon and asked her
to come home. Kristal left work and found Chappell outside with Devon. (Doc. 120-3 at
67–68, Tr. Ex. 327 at 20–21.) After Kristal arrived, Chappell began crying and apologized
to her. (Id. at 21.)
When later interviewed by police, Chappell said that things “happened so fast” and
he was not sure of the details. (Doc. 120-4 at 15, Tr. Ex. 329 at 14.) After a detective told
Chappell that “[i]n order to get the hemorrhage, you had to cut off his oxygen supply there
a little while,” Chappell acknowledged that choking could have been a “possibility,” even
though he said he was holding onto Devon’s shoulders. (Id.)
Following Devon’s death three months later, Chappell was charged with child abuse
in connection with the December incident. At his trial, the prosecution presented expert
testimony regarding the December incident from Jennifer Geyer, M.D. Dr. Geyer testified
that Devon had petechial bruising on his neck, face, and behind the ears following the
December incident. (R.T. 8/7/07 at 14.) She explained that “petechia” are little pinpoint
red bruises that result from blood vessels that rupture at the surface of the skin. (Id. at 15.)
Dr. Geyer said that this type of mark is “relatively rare,” and she had “only seen [it] a
handful of times.” (Id. at 18.) She opined that this type of injury would have required a
significant amount of force and would not have been consistent with Chappell pushing
down on Devon’s shoulders. (Id. at 21.) Dr. Geyer also opined that, based on Devon’s
injuries, Devon had “absolutely” been placed at “risk of serious physical injury or even
death.” (Id. at 23.) On cross-examination, defense counsel only asked Dr. Geyer questions
about Devon resisting her during her examination of him. (Id. at 24–25.) Defense counsel
did not present expert testimony to refute or challenge Dr. Geyer’s opinion regarding
whether Devon had been at risk of serious physical injury or death during the choking
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 50 of 140

~ 51 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
incident.
Chappell asserts that defense counsel rendered ineffective assistance by failing to
retain a medical expert to review the records related to the choking incident to attempt to
refute that Chappell had acted in a manner “likely to produce death or serious physical
injury,” as a defense to the child abuse charge. (Doc. 25 at 79, quoting R.O.A. 10.) He
contends that medical evidence supporting that a defense, coupled with evidence that
Chappell’s actions were involuntary where he had recently begun taking Wellbutrin, gave
rise to a reasonable probability that the jury would not have found him guilty of child abuse
beyond a reasonable doubt. (Id.)
Chappell asserts that defense counsel’s failure to obtain an expert medical opinion
to refute Dr. Geyer’s opinion, constituted deficient performance. (Id. at 81–82.) Chappell
also asserts that defense counsel acted deficiently by failing to consult with a pediatrician
to determine whether petechial bruising was consistent with the reported incident and
whether there may have been alternative explanations for the presence of petechiae in light
of Devon’s medical history. (Id. at 82–83.)
2. Exhaustion and Procedural Default
The parties agree that this claim is procedurally defaulted but disagree whether the
alleged ineffective assistance of PCR counsel establishes cause to excuse the default.
Respondents argue that Chappell has not established cause and prejudice under Martinez,
and that even if he had, the claim fails on the merits. (Doc. 33 at 62.) They further argue
that the underlying IATC claim is not substantial, and that because defense counsel was
not ineffective, PCR counsel was not ineffective for failing to raise the claim. (Id.)
PCR counsel did not submit any expert medical, or lay, evidence to support that
Devon’s petechial bruising could have resulted from a cause other than Chappell’s
admitted choking of him.19 And absent the presentation of any evidence on PCR to support
19 Moreover, the introduction of such evidence might have resulted in the introduction of
additional evidence regarding other injuries suffered by Devon after Chappell had cared
for him.
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 51 of 140

~ 52 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
that trial counsel could have obtained and presented such evidence, Chappell fails to
establish that PCR counsel rendered ineffective assistance by failing to raise the underlying
IATC claim on PCR. Chappell therefore fails to establish that the alleged ineffective
assistance of PCR counsel demonstrates cause to excuse the procedural default of the IATC
claim.
Defense counsel could have objectively and reasonably decided not to obtain an
alternative medical opinion where Chappell had admitted choking Devon resulting in
observable and documented injuries. (Doc. 120-1 at 28–32, Tr. Ex. 115.) Defense counsel
could also have reasonably concluded that contesting whether the force used by Chappell
was likely to produce serious physical injury or death, could have undermined Chappell’s
credibility concerning his regret about the incident. See e.g., De Cicco v. Ercole, No.
9:07CV1030, 2011 WL 5325654, at *3 (N.D.N.Y. Nov. 3, 2011); Vinton v. Nolan, No.
Civ.A. 04-10209-DPW, 2005 WL 562760, at *14 (D. Mass. Mar. 8, 2005). Further, defense
counsel could have reasonably viewed presenting evidence regarding the cause of the
petechial bruising, would undermine their involuntary intoxication defense to humanize
Chappell.
Counsel objectively, reasonably chose to defend against Count 2 by not arguing that
the choking incident would not likely produce death or serious physical injury. Chappell
confessed that he choked Devon, which caused Devon visible harm consistent with
strangulation. (Ex. 115 at 9–11; R.T. 8/7/07 at 14–23.) With this in mind, a defense that
the choking—the deprivation of oxygen—would not likely produce death or serious
physical injury would have undermined Chappell’s credibility. See, e.g., De Cicco v.
Ercole, No. 9:07CV1030, 2011 WL 5325654, at *3 (N.D.N.Y. Nov. 3, 2011) (“Because
[petitioner’s counsel] could have reasonably decided that to call . . . [the proposed] alibi
witness would risk [petitioner’s] credibility in the eyes of the jury, his representation did
not fall below an objective standard of reasonableness.”); Vinton v. Nolan, No. Civ.A. 04-
10209-DPW, 2005 WL 562760, at *14 (D. Mass. Mar. 8, 2005) (finding trial counsel’s
choice of defense reasonable because counsel “apparently conducted a rational cost-benefit
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 52 of 140

~ 53 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
analysis” of certain evidence “and determined that the risks [the evidence] posed—in terms
of undermining [p]etitioner’s credibility and possibly inflaming the passions of the jury—
outweighed any advantage [the evidence] might confer in supporting [p]etitioner’s claim
of self-defense”).
Further, by asserting the involuntary-intoxication defense, counsel reasonably tried
to humanize Chappell in case the trial reached the sentencing phase. See, e.g., Roche v.
State, 690 N.E.2d 1115, 1124–25 (Ind. 1997) (refusing to find trial counsel’s assistance
ineffective in having defendant testify at the guilt phase, in part, based on counsel’s
explanation that counsel had him testify “to humanize [him] in front of the jury before the
penalty phase”). Counsel, in short, did not perform deficiently.
Even if trial counsel’s performance was deficient, Chappell fails to show that their
failure to investigate and present medical or lay evidence to support an alternative cause of
Devon’s petechial bruising prejudiced his defense. As noted above, PCR counsel failed to
present any such evidence during PCR proceedings. Claim 2(A)(2) will be denied.
V. Claim 19
In Claim 19, Chappell argues violations of the Fifth Amendment Indictment Clause,
Sixth Amendment Notice Clause, the Eighth Amendment,20 and the Fourteenth
Amendment Due Process Clause where the grand jury did not include the aggravating
circumstances alleged by the State in the indictment. (Doc. 25 at 184.) Chappell alleges
that clearly established federal law requires that any fact, other than a prior conviction, that
increases the punishment for a crime must be treated as an element of the offense. (Id.,
citing Apprendi v. New Jersey, 530 U.S. 466, 477 (2000)21, and Ring v. Arizona, 536 U.S.
20 Courts connect the Eighth Amendment to the indictment process only when a party
argues that the crimes charged in an indictment will subject him to a cruel and unusual
punishment. See, e.g., United States v. Johnson, 423 F.2d 621, 622 (9th Cir. 1970) (per
curiam). Chappell concedes that he did not raise the Eighth Amendment aspect of this claim
in state court (Doc. 87 at 113) and he does not develop it here—citing case law that neither
supports this portion of the claim nor relates the Eighth Amendment to the indictment
process. The Eighth Amendment aspect of this claim lacks merit and will be denied.
21 In Apprendi, the Supreme Court held that any “fact” that increases the penalty for a state
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 53 of 140

~ 54 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
584, 609 (2002) 22).
While the Fifth Amendment’s Indictment Clause requires a grand jury indictment
to be supported by probable cause in federal prosecutions, U.S. Const. amend. V, it has not
been incorporated by the Fourteenth Amendment to apply to the states, Branzburg v.
Hayes, 408 U.S. 665, 688 n. 25 (1972); Hurtado v. California, 110 U.S. 516, 538 (1884);
see also Alexander v. Louisiana, 405 U.S. 625, 633 (1972) (“Although the Due Process
Clause guarantees petitioner a fair trial, it does not require the States to observe the Fifth
Amendment’s provision for presentment or indictment by a grand jury, . . . the Court has
never held that federal concepts of a ‘grand jury,’ binding on the federal courts under the
Fifth Amendment, are obligatory for the States.”) (internal citation and some punctuation
omitted); Gautt v. Lewis, 489 F.3d 993, 1003 n.10 (9th Cir. 2007); Williams v. Haviland,
467 F.3d 527, 531-32 (6th Cir. 2006). Thus, regardless of any unexcused procedural
default, the Fifth Amendment aspect of this claim lacks merit.
The Court now turns to the Sixth and Fourteenth Amendment portions of this claim.
On April 8, 2004, the prosecution faxed defense counsel its Notice of Intent to Seek Death
for the murder and disclosed the three aggravating circumstances that it intended to prove
in seeking the death penalty: Chappell’s previous conviction of a serious offense, i.e., child
abuse; the murder was especially cruel; and Chappell was an adult, and the victim was less
than 15 years old. (ROA 18.) Chappell’s state jury trial commenced 38 months after
defense counsel received the Notice of Intent. (ROA 245.) The jury subsequently found all
three alleged aggravating circumstances.
Chappell raised the Sixth and Fourteenth Amendment aspects of Claim 19 on direct
appeal. The Arizona Supreme Court denied the claim on the merits based on McKaney v.
offense beyond the statutory maximum, other than the fact of a prior conviction, must be
found by a jury or admitted by the defendant. 530 U.S. at 66, 488–90.
22 In Ring, the United States Supreme Court overruled Walton v. Arizona, 497 U.S. 639,
649 (1990), to the extent that Walton allowed a sentencing judge, sitting without a jury, to
find aggravating circumstances necessary to impose a death sentence, as violating the Sixth
Amendment requirement that such facts be found by a jury.
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 54 of 140

~ 55 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Foreman, 100 P.3d 18, 20-23, ¶¶ 9-24 (Ariz. 2004), which held that federal due process
did not require the state to allege aggravating circumstances in an indictment and found
McKaney received notice of the alleged aggravating circumstances well in advance of trial.
See Chappell, 236 P.3d at 1190.
Under the Sixth Amendment, the accused has the right to notice “of the nature and
cause of the accusation” against him. U.S. Const. amend. VI. Due process also ensures this
right. See Jackson v. Virginia, 443 U.S. 307, 314 (1979); Cole v. Arkansas, 333 U.S. 196,
201 (1948); In re Oliver, 333 U.S. 257, 273 (1948). The Sixth Amendment right to notice
extends to the states through the Fourteenth Amendment’s due process clause. Guatt v.
Lewis, 489 F.3d 993, 1003 (9th Cir. 2007) (citing Cole, 333 U.S. at 201). It also flows from
due process alone. See Cole, 333 U.S. at 201. The Supreme Court, however, has never held
that the Sixth Amendment Notice Clause, or due process, requires state court indictments
to include alleged aggravating circumstances for a punishment, in this case, a death
sentence, for an offense potentially punishable by a capital sentence. Accordingly, the state
court’s decision denying this claim was neither contrary to, nor involved an unreasonable
application of, clearly established Supreme Court law, § 2254(d)(1), and was not based on
an unreasonable determination of the facts in light of the evidence presented in the state
courts, §2254(d)(2). Accordingly, the Court will deny relief on Claim 19.
VI. Claim 20
In Claim 20, Chappell argues that the “reasonable doubt” jury instruction denied
him a fair jury trial under the Sixth Amendment and due process under the Fourteenth
Amendment.23 (Doc. 25 at 177–78.) Chappell alleges the reasonable doubt instruction
“lowered the burden of proof” so that a juror only needed to be ‘firmly convinced’ of guilt”’
and shifted the burden to Chappell to prove “there [was] a ‘real possibility that he [was]
not guilty.’” (Id. at 178.) Chappell also claims the instruction misinformed the jury that the
State need not overcome every doubt. (Doc. 25 at 178.) He claims that although he raised
23 Chappell only addresses the due process basis of this claim and abandons the Sixth
Amendment portion. (See Doc. 25 at 177–78; Doc. 87 at 115–17.)
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 55 of 140

~ 56 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
this claim on direct appeal, the Arizona Supreme Court did not deny it on the merits but
merely listed it verbatim in the Appendix to its decision without discussion. (Id. at 177.)
He contends the claim is not, therefore, subject to review under § 2254(d). (Id.) Chappell
further alleges that to the extent this Court finds any aspect of the claim unexhausted, the
ineffective assistance of appellate counsel excuses the default. (Id.)
Respondents contend that Chappell failed to fairly present this claim on direct
appeal because he failed to support the claim with argument or citation to authority,
rendering it procedurally defaulted. (Doc. 33 at 216.) To the extent the Court concludes
otherwise, Respondents argue the claim fails on the merits. (Id. at 217–21.)
In its decision on direct appeal, the Arizona Supreme Court listed the claim in an
Appendix of claims asserted “to avoid preclusion on federal review.” Chappell, 236 P.2d
at 1190, ¶ 61, n.11 & Appendix. The Arizona Supreme Court cited two of its previous
decisions rejecting challenges to the same reasonable doubt instruction given at Chappell’s
trial, State v. Portillo, 898 P.2d 970, 974 (Ariz. 1995), and State v. Ellison, 140 P.3d 899,
929, 916, ¶¶ 63 & 145 (Ariz. 2006). In Portillo, the Arizona Supreme Court adopted the
reasonable doubt instruction given at Chappell’s trial, stating that the instruction was
thereafter to be given in state criminal cases, and in Ellison it denied challenges to the
Portillo instruction.
Chappell sufficiently presented this claim to the state court on direct appeal, and it
is exhausted. Further, as discussed above, this Court must presume that the denial of a
claim by the state courts is a denial on the merits unless a state court “clearly” did not reach
the merits of the claim. Pirtle, 313 F.3d at 1167–68. The Arizona Supreme Court’s
inclusion of the claim in its Appendix, and citation of cases denying challenges to the same
instruction, reflects that the claim was denied on the merits, and does not clearly support
the contrary conclusion. Because the claim was denied on the merits, it is subject to review
under § 2254(d).
At both the guilt and sentencing phases of trial, the court defined proof beyond a
reasonable doubt as “proof that leaves you firmly convinced of a defendant’s guilt.” (R.T.
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 56 of 140

~ 57 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8/27/07 at 7–8 [guilt phase]; R.T. 8/30/07 at 9 [aggravation phase]) (emphasis added).
Chappell alleges the reasonable doubt instruction “lowered the burden of proof to one
where a juror need only be ‘firmly convinced’ of guilt”’ and shifted the burden to Chappell
to prove “there is a ‘real possibility that he is not guilty.’” (Doc. 25 at 178.) Chappell also
claims the instruction misinformed the jury that the State need not overcome every doubt.
(Id.)
“The beyond a reasonable doubt standard is a requirement of due process, but the
Constitution neither prohibits trial courts from defining reasonable doubt nor requires them
to do so as a matter of course.” Victor v. Nebraska, 511 U.S. 1, 5 (1994). So long as the
jury is instructed that the defendant must be found guilty beyond a reasonable doubt, “the
Constitution does not require that any particular form of words be used in advising the jury
of the government’s burden of proof. Rather, taken as a whole, the instructions must
correctly convey the concept of reasonable doubt to the jury.” Id.
The instruction provided by the trial court, which was consistent with Arizona law,
see Portillo, 898 P.2d at 974, is based on the pattern instruction adopted by the Federal
Judicial Center. See State v. Van Adams, 984 P.2d 16, 25–26 (Ariz. 1999). Chappell cites
no controlling authority holding that the instruction impermissibly lowers the burden of
proof, and, in Victor, Justice Ginsburg praised the instruction as “clear, straightforward,
and accurate.” 511 U.S. at 26 (Ginsburg, J., concurring). The Ninth Circuit has upheld
identical or substantially similar instructions. See, e.g., United States v. Artero, 121 F.3d
1256, 1257– 59 (9th Cir. 1997); United States v. Velasquez, 980 F.2d 1275 (9th Cir. 1992);
see also Harris v. Bowersox, 184 F.3d 744, 751–52 (8th Cir. 1999). For the reasons
discussed, the Court will deny Claim 20 because the Arizona Supreme Court’s decision on
direct appeal was neither contrary to nor an unreasonable application of clearly established
federal law.
///
///
///
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 57 of 140

~ 58 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
VII. CLAIM 29
In Claim 29, Chappell argues that the prescreening of the prospective jurors violated
his right to counsel and his due process right to “an impartial jury selected from a fair cross-
section of the community” under the Fifth, Sixth, and Fourteenth Amendments. (Doc. 25
at 203–04; Doc. 87 at 141–44.) Chappell asserts the claim is exhausted but that because
the Arizona Supreme Court did not deny it on the merits, the claim is not subject to review
under § 2254(d). (Doc. 25 at 203; Doc. 87 at 141–43.) Respondents argue the claim is
procedurally defaulted, but even if it is not, the Arizona Supreme Court denied the claim
on the merits and it is subject to review under § 2254(d), and relief should be denied. (Doc.
33 at 249–56.)
A. Additional Background
Chappell’s trial was scheduled to take about three months; the jury commissioner
was responsible for prescreening prospective jurors and excuse those claiming a hardship
or inability to serve in a three-month trial. (ROA 215 at 1.) After prescreening, the
remaining prospective jurors would proceed to their assigned courtroom, listen to the trial
court’s “preliminary statement,” and complete a questionnaire. (Id. at 2.) Those who
claimed an inability to serve as a juror in the expected three-month trial were required to
complete a form explaining why and were excused or reassigned to a different trial by the
jury commissioner. (Id. at 1–2; R.T. 6/19/07, p.m., at 1, 5.)
In April 2007, Chappell’s counsel moved to attend the prescreening and review the
forms. (R.O.A. 186 at 2.) Initially, the trial court agreed. (R.O.A. 215 at 1.) But it later
reversed itself based on a jury commissioner policy, which barred attorneys from attending
the prescreening. (R.O.A. 219, attach.) The court did allow counsel to review the forms
giving reasons for seeking to be excused. (Id.) Defense counsel objected to not being
allowed to be present during prescreening, which the court overruled. (R.O.A. 219; R.T.
6/1/07 at 8–10.)
The prescreening lasted five rounds. (See R.T. 6/19/07, 6/25/07, 6/26/07, 6/27/07,
and 7/2/07.) After reviewing the forms following the first round, defense counsel asserted
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 58 of 140

~ 59 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
that prospective jurors could be excused simply by submitting a form, which the jury
commissioner did not review before excusing prospective jurors.24 (R.T. 6/25/07 at 3–7.)
The defense cited reasons provided on some of the forms to support its request that the
court follow-up on the reasons given and retain the prospective jurors claiming hardship
until the court and counsel reviewed their forms. (Id. at 6–8.) The court denied the request,
stating that doing so “would paralyze the jury system” in Maricopa County. (Id. at 8.)
Defense counsel objected, arguing that the court was denying their client due process by
violating § 21-202 of the Arizona Revised Statutes.25 (Id. at 10–11.) The court overruled
the objection, citing State v. Morris, 160 P.3d 203, 212–14 (Ariz. 2007); State v. Wooten,
972 P.2d 993, 997–99 (Ariz. 1998); and State v. Atwood, 832 P.2d 593, 639–40 (Ariz.
1992), all of which had upheld the prescreening procedure without the review procedure
that counsel had requested. (Id. at 11–12.)
Chappell filed a notice of continuing objection to the prescreening process as
violating his rights to due process, equal protection, a fair and impartial jury, a full appeal,
and against cruel and unusual punishment. (R.O.A. 252 at 4–6.) The court found Chappell’s
objection preserved (R.T. 7/2/07 at 17–18), before commencing voir dire of the unexcused
prospective jurors, with counsel, and then empaneling a jury (see, e.g., R.T. 7/9/07, a.m.
and p.m.).
24 The court also had not reviewed the forms. (See R.T. 6/19/07 at 12.)
25 Arizona Revised Statute section 21-202(B) (2005) provided that a prospective juror
could be excused from serving as a juror if the judge or jury commissioner found the
prospective juror had a mental or physical condition causing the prospective juror to be
incapable of performing juror duty, with supporting documentation; jury service would
substantially and materially affect the public interest or welfare in an adverse manner; the
prospective juror was currently incapable of understanding the English language; jury
service would cause undue or extreme physical or financial hardship to the prospective
juror or to a person under the prospective juror’s supervision; the prospective juror is a
peace officer employed by the State or any political subdivision of the State, who applies
to be excused; and for good cause based upon a showing of undue or extreme hardship
under the circumstances, including being temporarily absent from the jurisdiction or a lack
of transportation.
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 59 of 140

~ 60 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
On direct appeal, while acknowledging the holding in Morris, 160 P.2d at 213, n.2,
Chappell claimed that the prescreening process violated due process under the Fifth and
Fourteenth Amendments and asked the Arizona Supreme Court to reconsider Morris. (O.B.
at 140.) The Arizona Supreme Court listed the claim verbatim in an appendix of issues
raised to avoid preclusion on federal review and specifically cited Morris as to the claim.
Chappell, 236 P.3d at 1190, ¶ 61.
B. Exhaustion and Procedural Default
In his habeas claim, Chappell asserts a violation of his Fifth, Sixth, and Fourteenth
Amendment rights based on the prescreening process. (Doc. 25 at 203–04.) Respondents
claim that Chappell failed to fairly present his habeas claim because he failed to offer
specific legal or factual arguments to support the claim in state court, rendering it
procedurally defaulted. (Doc. 33 at 250.)
On direct appeal, Chappell claimed that “[a]llowing the jury commissioner to ‘time
screen’ jurors over defense objection,” and absent the presence of counsel, violated
Chappell’s Fifth and Fourteenth Amendment due process rights. (O.B. at 139−40.)
Chappell fairly presented the due process aspect of his habeas claim to the state courts, and
this Court rejects Respondents’ contention that he did not, where the record is clear that
Chappell raised that portion of his habeas claim in state court. Chappell did not, however,
assert a Sixth Amendment violation in state court based on the prescreening process, and
he may not do so now. This portion of Claim 29 was not properly exhausted and is now
procedurally defaulted.
Chappell asserts that the ineffective assistance of appellate counsel in failing to raise
the Sixth Amendment portion of this claim, and the ineffective assistance of PCR counsel
in failing to raise the ineffective assistance of appellate counsel on PCR, constitutes cause
and prejudice under Martinez to excuse the procedural default of the Sixth Amendment
portion of this claim. (Doc. 87 at 143.) Because Claim 29 is not an IATC claim, the
procedural default of the Sixth Amendment portion of Claim 29 cannot be excused under
Martinez. See Davila, 582 U.S. at 529-31; see also Bejarano, 136 F.4th at 899 n.9.
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 60 of 140

~ 61 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
The Sixth Amendment portion of Claim 29 will be denied as procedurally defaulted.
C. Merits
Chappell argues that although he presented the remainder of his habeas claim to the
Arizona Supreme Court, it did not deny the claim on the merits but merely listed the
exhausted portion of the claim as one raised to avoid preclusion on federal review, without
addressing the merits, see Chappell, 236 P.2d at 1190, ¶ 61, n.11, and Appendix. He claims
this portion of Claim 29 is therefore not subject to review under § 2254. (Doc. 87 at 143–
44.)
The Arizona Supreme Court denied relief on the exhausted portion of Claim 29
based on its decision in Morris, 160 P.3d at 213, supra. at n.2, which it expressly cited.
The Court concludes that the denial of this portion of Claim 29 was a denial on the merits,
rendering it subject to review under § 2254(d). Chappell’s request for evidentiary
development in support of this claim to establish exhaustion will be denied as moot.
The Arizona Supreme Court’s denial of the exhausted portion of Claim 29 was
neither contrary to, nor an unreasonable application of, clearly established Supreme Court
law. Chappell has not cited any United States Supreme Court decision holding that the
absence of counsel from prescreening of prospective jurors concerning availability to serve
on a long trial violates any constitutional right, and this Court has found none. Accordingly,
the Arizona Supreme Court’s denial of the exhausted portion of Claim 29 was neither
contrary to, nor an unreasonable application of, clearly established Supreme Court law.
Relief under § 2254(d)(1) will be denied.
Chappell also fails to show that the Arizona Supreme Court’s decision was based
on an unreasonable determination of the facts in light of the evidence presented in the State
court proceeding. There is nothing in the record to support that any distinctive group was
excluded or excused from the jury panel for any reason unrelated to unavailability, or that
the jury was not fair and impartial. See United States v. Moreland, 703 F.3d 976, 982 (7th
Cir. 2012) (citing Berghuis v. Smith, 559 U.S. 314, 320 (2010); Duren, 439 U.S. at 364–
66; United States v. Neighbors, 590 F.3d 485, 492 (7th Cir. 2009)) (rejecting complaint
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 61 of 140

~ 62 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
that the judge, before voir dire, excused prospective jurors based on hardship, “without
some evidence of systematic exclusion of some definable element of society,” e.g., “a racial
or ethnic group” or “a group defined by income or social class”) (emphasis in original).
Further, nothing in the record reflects that prospective jurors were provided any
information about the type of trial, civil or criminal, or anything about Chappell, his case,
the crimes charged, or any possible sentence. (R.O.A. 215.) At most, prospective jurors
learned that a trial—without providing information about the type of trial or the parties—
would last three months and the trial dates. (Id. at 1.) The only issue before prospective
jurors was their availability to serve as a juror in a lengthy trial, and if they were unavailable
to serve, they had to provide a written explanation regarding their unavailability. (Id. at 1–
2.) Chappell fails to point to anything to support that prescreening of prospective jurors
regarding their availability to serve on a lengthy trial, in any way affected the impartiality
of prospective jurors.
For the reasons discussed, the Court will deny Claim 29.
VIII. Claim 30
In Claim 30, Chappell argues that at the time of his prosecution, Maricopa County
Attorney Andrew Thomas was engaged in a criminal conspiracy against the Maricopa
County Superior Court and its judges, which was sufficient to deny Chappell an impartial
trial judge in violation of Chappell’s Fifth, Sixth, Eighth, and Fourteenth Amendment
rights. (Doc. 25 at 205–11.) Chappell asserts that Thomas engaged in intimidation against
some judges, by filing spurious RICO charges against them, which he asserts affected the
entire Maricopa County Superior Court bench.26 (Id. at 207–10.) Chappell acknowledges
26 He argues the lack of an impartial judge constituted structural error, and that he does not
have to show that he was prejudiced by the alleged intimidation or that he is innocent of
the crimes of conviction. (Doc. 25 at 211, citing United States v. Marcus, 560 U.S. 258,
263 (2010), and Tumey v. Ohio, 273 U.S. 510 (1927)). Chappell points to nothing in the
record of either Thomas’ disbarment proceedings or Chappell’s trial to even arguably
support that his trial judge had been subject to or affected by Thomas’ misconduct towards
other Superior Court judges.
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 62 of 140

~ 63 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
that he did not raise this claim in state court on direct appeal or PCR and that it is
procedurally defaulted. (Id. at 205.). He argues in part that some of the factual bases of this
claim could not have been presented in state court at relevant times because they had not
yet become a matter of public record and that the ineffective assistance of appellate and
PCR counsel excuses the procedural default of this claim. (Id.) Chappell seeks evidentiary
development in support of this claim and to show cause to excuse his procedural default.27
(Doc. 105 at 49–50.) Respondents argue the claim is procedurally defaulted and that
Chappell has not shown cause and prejudice to excuse the default. (Doc. 33 at 257–59.)
They argue the claim also fails on the merits. (Id. at 259–62.)
As described herein, this Court may not consider non-record evidence in support of
a procedurally defaulted claim unless the Chappell satisfies 28 U.S.C. § 2254(e)(2).
Ramirez, 596 U.S. at 381 (emphasis added). Claim 30 does not rely on a new rule of
constitutional law made retroactive to cases on collateral review that was previously
unavailable, and as discussed below, it does not rely on a factual predicate that could not
have been discovered previously through the exercise of due diligence. 28 U.S.C. §
2254(e)(2). Nor do the facts underlying the claim establish by clear and convincing
evidence that but for constitutional error, no reasonable factfinder would have found the
[petitioner] guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2). Thus, under Ramirez,
the Court may not consider non-record evidence to establish cause to excuse the procedural
default. 596 U.S. at 381. Chappell’s request for evidentiary development as to Claim 30
will be denied.
Claim 30 is procedurally defaulted. Chappell claims the ineffective assistance of
appellate counsel excuses the default. However, appellate ineffective assistance can only
establish cause to excuse a procedural default if it was first exhausted in state court as an
independent constitutional claim. See Edwards, 529 U.S. at 453; Murray v. Carrier, 477
27 He seeks to depose the trial judge, an expansion of the record to include the opinion and
order imposing sanctions on Thomas, and news articles about Thomas’s alleged conspiracy
against Maricopa County officials.
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 63 of 140

~ 64 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
U.S. 478, 489–90 (1986). Chappell did not raise a claim of appellate ineffective assistance
based on appellate counsel’s failure to raise the underlying claim. Chappell also asserts that
the ineffective assistance of PCR counsel establishes cause under Martinez but as discussed
herein, cause under Martinez can only excuse the default of IATC claims. See Hunton, 732
F.3d at 1126–27; see also Martinez (Ernesto), 926 F.3d at 1225; Pizzuto, 783 F.3d at 1177.
Accordingly, Chappell fails to establish cause and prejudice to excuse the procedural
default of this claim.
Chappell also asserts that he lacked a factual basis to raise this claim because
Thomas’s alleged intimidation of Superior Court judges was not then a matter of public
record. (Doc. 25 at 205.) Respondents note that Thomas was disbarred on April 10, 2012,
six months before Chappell filed his initial PCR petition, which he amended a month later,
and more than 15 months after Thomas’s disbarment. (Doc. 33 at 258.) Chappell has not
alleged or shown that he could not have raised this claim in his PCR proceedings, or that
facts to support this claim could not have been presented in PCR proceedings. Claim 30
will be denied.
SENTENCING PHASE CLAIMS
IX. Claim 2(B)
In Claim 2(B), Chappell alleges that defense counsel rendered ineffective assistance
by failing to retain an independent pathologist to assist in preparing a defense to the cruelty
aggravating circumstance under A.R.S. § 13-703(F)(6) (West 2007). Chappell raised this
claim in his PCR petition and in his subsequent petition for review. (Doc. 42-3 at 7–14, Ex.
WWW; Doc. 70-2 at 3, Ex. OOOOO; Doc. 72-6, at 2, Ex. KKKKKK.) The PCR court
denied the claim as to both Strickland prongs adopting the State’s position on the claim.
(Doc. 70-2 at 3, Ex. OOOOO.) The State argued that Chappell had not overcome
Strickland’s presumption that counsel had acted reasonably in declining to present
testimony from an independent pathologist and that the jury still would have found the
cruelty aggravating circumstance even if Chappell had presented such evidence. (Doc. 56,
Ex. RRRR at 23–33.) Claim 2(B) is exhausted and subject to review under § 2254(d).
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 64 of 140

~ 65 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
A. Additional Background
At the guilt phase, Medical Examiner opined that Devon died from drowning as a
result of homicide. (R.T. 8/13/07 at 63.) He described that Devon’s lungs had hemorrhaged
as a result of rapid expansion when Deven inhaled water. (Id. at 58–59.) He described
Devon’s airway and nostrils as being filled with foam. (Id. at 59–60.) Dr. Hu opined that a
drowning person would remain conscious from 30 seconds to two minutes and would die
four or five minutes after losing consciousness. (Id. at 62.) At the aggravation phase, Dr.
Hu testified that Devon had attempted to breathe underwater and repeated that he would
have remained conscious for at least 30 seconds and up to two minutes. (R.T. 8/30/07 at
19–20, 27.) He testified that the lung hemorrhaging reflected that Devon had inhaled a
large amount of water quickly and that the foam in his airway formed when the inhaled
water mixed with air and protein from the blood in the lungs. (Id. at 19, 21–26.) Dr. Hu
also testified about a pretrial interview with defense counsel in which he opined that a
drowning victim’s experience is horrifying because of the inability to breathe, and that it
would have been a 10 on a scale of 1 to 10. (Id. at 23.)
Defense counsel cross-examined Dr. Hu to clarify that Devon’s physical pain a
drowning victim experiences was the pain of not being able to breathe. (Id. at 30–31.) She
questioned Dr. Hu regarding whether a two-year old child would realize that his death was
imminent, to which Dr. Hu responded that the question was outside his experience but
opined that Devon would have had the instinct to breathe regardless of whether he knew
he was about to die. (Id. at 31–32.) Defense counsel also questioned Dr. Hu about the
absence of bruises or other significant external injuries. (Id.) Dr. Hu clarified on redirect
that Devon would understand that he was being denied air and would instinctively try to
breathe. (Id. at 35–36.)
To further support the cruelty factor, the State highlighted guilt-phase testimony of
first responders about the amount of foam and water that escaped from Devon’s lungs when
they attempted CPR, as well as other circumstances of the offense. (Id. at 13–17, 49, 50–
51.) The State also noted the December 2003 choking incident, during which Devon
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 65 of 140

~ 66 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
experienced having air restricted due to Chappell’s actions. (Id. 15, 50, 59.) The State also
relied on Chappell’s own admission that Devon had struggled for his life, and had looked
Chappell in the eye as Chappell drowned him. (Id. at 15–17, 51, 60.)
In closing argument, defense counsel focused on the absence of evidence to support
that Devon knew, when Chappell took him from his apartment, that he was going to his
death, and suggested that because of his age he would not have known that he was about
to die while being held underwater. (Id. at 55–56.) The jury found all three alleged
aggravating circumstances in less than 30 minutes. (Id. at 64–65.)
Chappell claims that his trial counsel ineffectively assisted him by not hiring an
expert to help prepare a defense against especial cruelty. (Doc. 25 at 87-93.) He raised this
claim on PCR, which the PCR court denied; he then raised the claim in the Arizona
Supreme Court, in which the Arizona Supreme Court denied review. (Doc. 42-3 at 7–14,
Ex. WWW; Doc. 70-2 at 3, Ex. OOOOO; Doc. 72-6, Ex. KKKKKK.)
B. Merits
As discussed above, this claim was exhausted on PCR and was denied on the merits.
Chappell contends that the state court’s denial of this claim was contrary to and involved
an unreasonable application of clearly established federal law because the PCR court
determined that Chappell had not established either Strickland prong by a preponderance
of the evidence because neither Strickland, nor Williams, which explicitly rejected the
preponderance of the evidence standard to establish the unreliability of a criminal
proceeding due to trial counsel’s ineffectiveness. (Doc. 87 at 53.) He argues the PCR court
unreasonably applied Strickland by determining that he had failed to show that “any
counsel’s performance was deficient under prevailing processional [sic] standards or that
he suffered prejudice,” without making independent factual findings, or holding an
evidentiary hearing, and adopting the State’s position. (Doc. 87 at 53–54, quoting PCR
Doc. 157 at 3; PR Doc. 14.) Chappell argues that the PCR court erred in dismissing his
ineffectiveness claim where defense counsel failed to rebut the State’s evidence of
aggravation. (Doc. 87 at 54.) He argues that the PCR court failed to consider “all the
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 66 of 140

~ 67 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
circumstances” by crediting the State’s assertion that defense counsel’s decision not to
present expert medical evidence during the aggravation phase was strategic and that
drowning was undisputedly an “an inherently painful death, both mentally and physically,
rather than holding an evidentiary hearing to resolve the parties’ conflicting accounts of
what happened. (Doc. 87 at 54; PCR R.O.A. 122 at 28.)
Chappell also contends the state courts unreasonably applied Strickland by
determining that defense counsel had not performed deficiently by failing to investigate
and present expert medical evidence in opposition to the State’s aggravation case, claiming
that Respondents’ argument that the decision was strategic was unpersuasive. (Doc. 87 at
54.) He asserts that defense counsel had an obligation to investigate and rebut aggravating
circumstances with evidence of their own. (Id. at 55.) He claims that whether drowning
was painful for the victim was a disputed issue of fact to be decided by the jury. (Id.) He
contends that had defense counsel consulted with and presented testimony of an expert
medical examiner, they would have been prepared to effectively cross-examine Dr. Hu,
and to object to his characterization that drowning was horrifying and a 10 on a scale of
one to 10. (Id.) He contends that an expert medical examiner could have emphasized that
defense counsel should focus on when the victim likely lost consciousness, factors
affecting the timing of when he lost consciousness, and that the testimony of such expert
would not have left the jury with only Dr. Hu’s testimony to consider. (Id.) Chappell argues
that had defense counsel presented such evidence, there was a reasonable probability that
the jury would not have found the (F)(6) factor, which would have affected the balance of
aggravating and mitigating evidence at the penalty phase. (Id. at 55–56.)
The Arizona Supreme Court has characterized the especially cruel aggravating
circumstance as concerning the suffering of the victim, see State v. Murray, 906 P.2d 542,
570 (Ariz. 1995), physically or mentally, State v. Martinez, 189 P.3d 348, 363 (Ariz. 2008).
Indeed, it “focuses on the victim’s state of mind,” Tucker, 160 P.3d at 200, throughout “the
entire murder transaction and not simply the final act that killed the victim,” State v.
Ellison, 140 P.3d 889, 925 (Ariz. 2006). To be found especially cruel, the defendant must
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 67 of 140

~ 68 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
have known “or should have known that the victim would experience mental anguish or
physical pain, and that the victim was conscious during some part of the violence.” Id. The
victim’s anguish alone is sufficient to support a finding of especially cruelty. Id.
At trial, defense counsel argued that Devon quickly lost consciousness after entering
the pool and that, at the age of two, he could not have anticipated his impending death.
(R.T. 8/30/07 at 55–56.) Chappell confessed to have forcibly drowned two-year-old Devon
and that Devon struggled for his life under water. (Doc. 120-1, Exs. 142 and 150.) Medical
examiner, Dr. Hu opined at trial that “not being able to breath[e]” is “a horrifying
experience” and a 10 on a scale of 1 to 10. (R.T. 8/30/07 at 23, 30.) Based on this evidence,
counsel could have reasonably made a tactical decision not to focus more attention on the
details of Devon’s death, which could have alienated jurors without persuading them that
Devon had not suffered anguish and possibly lose credibility for the defense. See Gore v.
Dugger, 763 F. Supp. 1110, 1130 (M.D. Fla. 1989) (maintaining credibility before a jury
was a reasonable strategic decision).
This Court will not second-guess that decision. Because the state-court record
indicates that Chappell’s counsel did not perform deficiently, Claim 2(B) will be denied.
X. Claim 2(C)
In Claim 2(C)(1), Chappell alleges that trial counsel insufficiently investigated,
developed, and presented neurological evidence that he had brain damage. (Doc. 25 at 93-
105.) Chappell concedes that he did not present this claim to the state courts but asserts
that it is newly discovered. (Id. at 93; Doc. 42-3 at 36–38, Ex. WWW.) During his PCR
case, Chappell underwent an MRI and Pet Scan, on which Dr. Wu saw “abnormalities” and
determined that “[t]hese findings corroborate[d] the presence of a damaged brain most
likely due to head trauma and not substance abuse” and “ma[de Chappell] more vulnerable
to have impaired ability to regulate impulses including use of substances [citation omitted]
and more likely to develop organic personality disorders [citation omitted], organic
psychosis [citation omitted,] and organic mood disorders [citation omitted,] including
manic-psychotic reactions to antidepressants.” (Doc. 42-3, Ex. WWW, Attach. U). Dr. Wu
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 68 of 140

~ 69 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
added that “[t]he impaired ability [to] regulate substance abuse as a result of head trauma
also ma[de it] more likely that he w[ould] develop additional complications such as
psychosis and mood disorders.” (Id.) On PCR, based on Dr. Wu’s findings, Chappell
argued that “[b]ecause evidence of his brain injury provides an explanation for [his]
‘impaired ability to regulate impulses[,]’ such evidence, had it been combined with
evidence of [his] impulsivity, would have made a difference in the outcome of the” penalty
phase. (Doc. 42-3 at 37–38, Ex. WWW.)
In response, the State asked the PCR court to reject that evidence and to construe
the claim as a claim of ineffective assistance of counsel. (Doc. 56-6 at 73.) The State argued
that Dr. Wu’s evidence would not have resulted in a life sentence because the MRI and
PET scans “in [Chappell’s] context” lacked credibility as not generally accepted in the field
of psychology to determine personality or mental disorders. (Id. at 72.) The State also
asserted that Chappell’s retained physician opined that he “did not suffer from brain
damage.” (emphasis in original) (Id., citing Ex. R.) Last, the State stressed that Chappell’s
brain damage that impaired his decision-making ability, would be “minimally mitigating”
because Devon’s “murder was calculated, premeditated, and well-planned.” (Id. at 72–73.)
In denying postconviction relief based on the State’s arguments, the court noted that
Chappell had claimed that his trial counsel did not “investigate and adequately present
mental health evidence as mitigation.” (Doc. 70-2 at 2–3, Ex. OOOOO.) Chappell did not
ask the Arizona Supreme Court to review the denial (see Doc. 72-3, Ex. HHHHHH). In
other words, with respect to Claim 2(C)(1), he did not—and can no longer—complete a
round of appellate review. Claim 2(C)(1) is thus technically exhausted but procedurally
defaulted. Chappell asks this Court to excuse the default because of cause and prejudice
under Martinez. (Doc. 25 at 93.)
Assuming, without deciding, that Chappell’s trial counsel should have further
investigated Chappell’s potential brain damage, Chappell did not suffer prejudice based on
the state-court record. Dr. Wu determined that Chappell’s MRI and PET scans showed
brain abnormalities that would impair Chappell’s “ability to regulate impulses.” (Doc. 42-
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 69 of 140

~ 70 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3, Ex. WWW, Attach. U). But the trial evidence shows that Chappell did not murder Devon
impulsively. The murder was preplanned, strategic, deliberate, and ultimately
premeditated. Therefore, evidence of brain damage would have provided minimal
mitigating weight, cf. State v. Prince, 250 P.3d 1145, 1171, ¶ 113 (Ariz. 2011) (citing
Armstrong, 189 P.3d 378, 392 (Ariz. 2008)) (“Absent a causal nexus to the crime . . . [the
Arizona Supreme Court will] usually give [defendant’s poor mental health] little weight.”),
and thus a reasonable probability does not exist that the jury would not have sentenced
Chappell to death—especially in light of the three found aggravating circumstances.
Claim 2(C)(1) will be denied based on the state-court record.
In Claim 2(C)(2), Chappell alleges that defense counsel rendered ineffective
assistance by insufficiently investigating and refuting evidence suggesting that Chappell
had broken Devon’s leg shortly before the choking incident. (Doc. 25 at 105–13.) This
specific claim is procedurally defaulted, as the record shows that Chappell did not raise it
in state court. See Casey, 386 F.3d at 913; cf. Schneider v. McDaniel, 674 F.3d 1144, 1152
(9th Cir. 2012) (holding that a later-raised IAC claim for failing to raise one defense does
not relate back to an earlier-raised IAC claim for failing to raise a different defense).
Chappell, however, argues that the ineffective assistance of PCR counsel by failing to raise
the IATC claim excuses the default. (Doc. 25 at 106; Doc. 87 at 62–63.) This argument
lacks merit, as the record does not show that his trial counsel performed deficiently.
About a week before the December 2003 choking incident, Devon suffered a broken
leg, specifically a spiral fracture while being cared for by Chappell. Defense counsel
unsuccessfully sought to exclude evidence of Devon’s broken leg. See Chappell, 236 P.3d
at 1186–87. A teacher at Devon’s preschool testified that she saw Chappell carry Devon
into the school, place him on a toilet, before leaving. (R.T. 10/22/07 at 74–80, 83.) When
the teacher checked on Devon in the bathroom, she saw him standing next to the toilet and
pulling up his pants. (Id. at 81–82.) But when Devon tried to walk to her, he “couldn’t put
any weight on his leg” and began “whimpering.” (Id. at 82–84.) The teacher also saw a
bruise on Devon’s cheek. (Id. at 88.) When Chappell returned to the preschool, the teacher
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 70 of 140

~ 71 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
told him about Devon’s injured leg. (Id. at 84–86.) Devon could not explain how his leg
was injured; Chappell said that Devon had fallen from the toilet, which the teacher doubted
because she had not heard him cry in the bathroom. (Id. at 85, 101.) Dr. Greyer, who
reviewed hospital records concerning Devon’s broken leg, also testified. (R.T. 10/18/07 at
48–51.) She testified that Devon had a spiral fracture, which required a “rotational or
twisting motion.” (Id. at 53.) She also testified that Devon’s treating physician had seen
Devon’s facial bruises. (Id. at 54.) Dr. Greyer found Chappell’s explanation for Devon’s
broken leg “improbable” because a spiral facture would have been very painful would have
likely caused Devon to make “some kind of outburst.” (Id. at 57–60.) She expressed
concern about “repetitive inflicted injury” based upon Devon’s multiple injuries while in
Chappell’s care. (Id. at 57–60, 64, 67.)
Defense counsel presented evidence tending to refute that Chappell had broken
Devon’s leg. Chappell’s father testified that Devon had not been limping when Chappell
left home to drop him off at the preschool, and Chappell’s mother testified that she had
seen a bruise on Devon’s face a day before he broke his leg. (R.T. 10/17/07, at 112–13;
R.T. 10/18/07, at 35–47.) In addition, Chappell had told a detective that he might have
accidentally fractured Devon’s leg on the way to the preschool when he slid back his own
car seat and hit Devon, who sat behind him. (Doc. 120, Tr. Ex. 329 at 33–36.)
Defense counsel, moreover, challenged Kristal’s credibility as to her statements that
Chappell had broken Devon’s leg. (See, e.g., R.T. 10/03/07 at 101−22, testimony that
Kristal had stated that Devon was a problem for her relationship with Chappell, suggesting
that Kristal was involved in the Devon’s murder); R.T. 10/09/07, at 92−115, Kristal’s
alleged prior neglect of the victim; R.T. 10/10/07 at 77, detective labeled Kristal an
investigative lead in the murder investigation because she had lied to detectives many times
during the investigation; R.T. 10/24/07 at 58, 112, 136−37, admission by Kristal that she
had given Devon “a hard, hard whipping” and that she had placed a pillow over the
toddler’s face to make him stop crying at night; R.T. 10/29/07 at 135–55, attacking
Kristal’s character and credibility during rebuttal closing argument to support that jurors
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 71 of 140

~ 72 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
should not believe Kristal’s accusations against Chappell).
Defense counsel could have reasonably concluded that expert evidence about how
Devon suffered a spiral fracture was unlikely to benefit Chappell. Evidence corroborated
Kristal’s statements to that effect. See Petty, 982 F.2d at 1369 (citing cases) (holding that
although Wright, 497 U.S. 805, bars the use of “extrinsic corroborating evidence to
establish the reliability of hearsay at trial, it does not preclude the use of such evidence to
[do so] at sentencing”). A teacher at Devon’s preschool testified that she saw Chappell
carry Devon into the school, place him on a toilet, and then left him in her care. (R.T.
10/22/07 at 74-80, 83.) She checked on Devon in the bathroom and saw him standing next
to the toilet and pull up his pants. (Id. at 81-82.) Although he tried to walk to her but
“couldn’t put any weight on his leg” and began “whimpering.” (Id. at 82–84.) The teacher
also observed a bruise on Devon’s cheek. (Id. at 88.) When Chappell returned, the teacher
told him about Devon’s injured leg. (Id. at 84–86.) Devon could not explain how he had
injured it, and Chappell said that he had fallen from the toilet. (Id. at 85, 101.) The teacher
doubted that Devon had done so, as she did not hear him cry in the bathroom. (Id. at 101.)
Dr. Greyer, who reviewed Devon’s hospital records of his broken leg, also testified.
(R.T. 10/18/07 at 48–51.) The doctor defined Devon’s leg injury as a spiral fracture, which
required a “rotational or twisting motion.” (Id. at 53.) She also testified that Devon’s
treating physician saw Devon’s facial bruises. (Id. at 54.) Dr. Greyer also found Chappell’s
explanation for the broken leg “improbable” because the spiral facture would have caused
Devon much pain and thus would have likely made “some kind of outburst.” (Id. at 57–
60.) She felt concerned about “repetitive inflicted injury” because Devon had suffered
multiple unexplained injuries in Chappell’s care. (Id. at 57–60, 64, 67.)
Even more, Chappell told the detective that he could have accidentally fractured it
by sliding back his own car seat and hitting Devon who sat behind him. (Ex. 329 at 33–
36.) Chappell’s father also testified that Devon was not limping when Chappell left home
to drop him off at day care, and Chappell’s mother testified that she saw a bruise on
Devon’s face a day earlier. (R.T. 10/17/07, at 112–13; R.T. 10/18/07, at 35–47.)
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 72 of 140

~ 73 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Further, counsel could have reasonably made a strategic choice not to attempt to
refute Dr. Geyer’s testimony about the cause of Devon’s spiral fracture and to focus on
mitigation. See United States v. Appoloney, 761 F.2d 520, 525 (9th Cir. 1985) (quoting
Strickland, 466 U.S. at 689) (recognizing that “courts are admonished not to ‘second-guess’
trial strategy”). Chappell fails to establish that PCR counsel’s failure to raise the underlying
IATC claim is not sufficient to establish cause for the procedural default of that claim.
Claim 2(C)(2) will be denied based on the state-court record.
XI. Claim 4(A)
In Claim 4(A), Chappell argues that appellate counsel rendered ineffective
assistance by failing to challenge the denial of his motion to withdraw a proposed
“uncharged co-conspirator” mitigating circumstance. (Doc. 25 at 119–22.) The denial, he
claims, prejudiced him because the admission of Kristal’s “unreliable” emails “portray[ed
him] as a serial child abuser . . . .” (Id. at 122; Doc. 87 at 73.)
A. Additional Background
At the penalty phase, Chappell planned to allege as a mitigating circumstance that
Kristal was an “uncharged co-perpetrator,” and the trial court said that it would then admit
Kristal’s emails. (ROA 412 at 5–6.) In response, Chappell asked the court if it would
remove the emails from evidence if he withdrew his uncharged co-perpetrator mitigating
circumstance. (R.T. 9/24/07 at 47.) The court refused because Chappell had raised an
uncharged co-perpetrator as a defense at the guilt phase. (Id. at 47, 82–83; see also R.T.
8/27/07 at 61–78, 85, 91–92, 97–100, 105–11.)
On PCR, Chappell alleged appellate IAC based on appellate counsel’s failure to
challenge the denial of his motion to withdraw the proposed “uncharged co-conspirator”
mitigating circumstance. (Doc. 42-3 at 51–54, Ex. WWW.) He argued that “[t]he sole
defense employed by defense counsel at trial regarding [the first-degree murder charge]
was that Kristal Shackleford either killed Devon . . . or was somehow involved with
Devon’s death.” (Id. at 52.) “Because the jury convicted [him] of Devon’s murder, it seems
clear that they rejected this defense.” (Id.) He claimed that by “[n]ot allowing [him] to
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 73 of 140

~ 74 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
withdraw virtually the same defense as the jury had rejected at trial,” it would appear to
the jury as a strategy aimed at antagonizing them and argued the trial court should have
allowed him to withdraw the “‘uncharged co-perpetrator’ mitigating factor.” (Id.) Chappell
also claimed that the denial of his motion violated his “Fifth Amendment right to due
process,” and that appellate counsel rendered ineffective assistance by failing to raise the
Fifth Amendment claim on direct appeal. (Id.)
In response, the State argued that Chappell’s appellate counsel had not performed
ineffectively because the defense had no right to have the trial court instruct the jury about
any specific mitigating circumstance. (Doc. 56-6 at 69–70, Ex. RRRR.) The State further
noted that the jury could consider, and the State could rebut, an “uncharged co-perpetrator”
mitigating circumstance where the jury had heard evidence of the theory at the guilt phase.
(Id. at 70.) In reply, Chappell argued that withdrawal of an uncharged co-perpetrator
mitigating circumstance would have allowed the jurors to consider the evidence of the
uncharged co-perpetrator circumstance but without “antagoniz[ing]” them about it. (Doc.
69-5 at 64–65, Ex. IIIII.)
The PCR court denied Chappell’s claim, adopting the State’s response, and the
Arizona Supreme Court denied review. (Doc. 70-2, Ex. OOOOO at 2; Doc. 72-3 at 19–20,
Ex. HHHHHH; Doc. 72-4 at 8-9, 18–19, Ex. IIIIII; Doc. 72-5, Ex. JJJJJJ; Doc. 72-6, Ex.
KKKKKK.) Chappell argues that the PCR court’s decision was contrary to, or an
unreasonable application of, clearly established federal law, and an unreasonable
application to the facts. (Doc. 25 at 120–22.) Moreover, he asserts, for the first time, that
the denial of his motion to withdraw prejudiced him by admitting Kristal’s emails, which
he claims were unreliable. (Id. at 122; Doc. 87 at 73.) The state-court record belies these
assertions.
///
///
///
///
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 74 of 140

~ 75 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
B. Discussion
The Eighth and Fourteenth Amendments require a sentencer to consider certain
mitigating circumstances: “[T]he sentencer, in all but the rarest kind of capital case, [must]
not be precluded from considering, as a mitigating factor, any aspect of a defendant’s
character or record and any of the circumstances of the offense that the defendant proffers
as a basis for a sentence less than death.” Lockett, 438 U.S. at 604 (1978). The Eighth
Amendment, as held by the United States Supreme Court, bars a court from precluding
juries from considering and giving effect to “‘any aspect of a defendant’s character or
record and any of the circumstances of the offense that the defendant proffers as a basis for
a sentence less than death.’” Eddings, 455 U.S. at 110 (quoting Lockett, 438 U.S. at 604);
Penry v. Johnson, 532 U.S. 782, 797 (2001) (citing Penry, 492 U.S. at 319).
The United States Supreme Court’s “consistent concern has been that restrictions
on the jury’s sentencing determination not preclude the jury from being able to give effect
to mitigating evidence,” Buchanan v. Angelone, 522 U.S. 269, 276 (1998), and has never
“held that the state must affirmatively structure in a particular way the manner in which
juries consider mitigating evidence,” id. at 276–77 (citing Tuilaepa v. California, 512 U.S.
967, 978–79 (1994); Stephens, 462 U.S. at 875). At the trial’s penalty phase “the state is
not confined to submitting specific propositional questions to the jury and may indeed
allow the jury unbridled discretion.” Tuilaepa, 512 U.S. at 978–79; see also Stephens, 462
U.S. at 875 (rejecting argument that a scheme permitting a “jury to exercise unbridled
discretion in determining whether” to impose a death sentence “after it has found” the
defendant eligible for such a sentence is unconstitutional, noting that accepting the
argument would require the overruling of Gregg). The Court has, in fact, “emphasized the
need for a broad inquiry into all relevant mitigating evidence to allow an individualized
determination” of whether a defendant should be sentenced to death. Buchanan, 522 U.S.
at 276.
The trial court did not err in denying Chappell’s motion to withdraw an “uncharged
co-perpetrator” theory as mitigation where the jury had already heard evidence of Kristal’s
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 75 of 140

~ 76 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
alleged involvement in Devon’s death at the guilt phase. (See R.T. 8/27/07 at 61–78, 85,
91–92, 97–100, 105–11.) At the penalty phase, the jury had unbridled discretion to
consider, and give effect to, that evidence as mitigation at the penalty phase. Further, the
jury was instructed that it could consider evidence from the guilt phase (R.T. 10/25/07 at
8), which Chappell did not challenge.
Chappell misreads Lockett as permitting him to prevent a jury from considering
admitted evidence as mitigation. In terms of such evidence, the United States Supreme
Court has produced a rule of inclusion—not exclusion of mitigation evidence. See
Buchanan, 522 U.S. at 276. And Lockett does not provide that a defendant may bar a jury
from considering guilt-phase evidence as mitigation. Chappell’s reading of Lockett is
contrary to cases applying it. See id. For these reasons, the trial court’s denial of the motion
was not contrary to or an unreasonable application of clearly established federal law, and
its decision did not involve an unreasonable determination of fact.
Chappell’s appellate attorney did not perform deficiently or prejudice Chappell by
failing to raise the trial court’s denial of the motion as a violation of due process. See
Moormann v. Ryan, 628 F.3d 1102, 1107 (9th Cir. 2010) (“If trial counsel’s performance
was not objectively unreasonable or did not prejudice [petitioner], then appellate counsel
did not act unreasonably in failing to raise a meritless claim of ineffective assistance
of counsel, and [petitioner] was not prejudiced by appellate counsel’s omission.”); Turner
v. Calderon, 281 F.3d 851, 872 (9th Cir. 2002) (“A failure to raise untenable issues on
appeal does not fall below the Strickland standard.”); Wildman v. Johnson, 261 F.3d 832,
840 (9th Cir. 2001) (“[A]ppellate counsel’s failure to raise issues on direct appeal does not
constitute ineffective assistance when appeal would not have provided grounds for
reversal.”); Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir. 1985) (“Failure to raise a
meritless argument does not constitute ineffective assistance.”); cf. Pollard v. White, 119
F.3d 1430, 1435 (9th Cir. 1997) (“A hallmark of effective appellate counsel is the ability
to weed out claims that have no likelihood of success, instead of throwing in a kitchen sink
full of arguments with the hope that some argument will persuade the court.”). The Court
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 76 of 140

~ 77 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
also rejects Chappell’s challenge to the admission of Kristal’s emails at the penalty phase
as unreliable, for the reasons discussed in connection with Claims 5 and 6, Claim 4(A) will
be denied.
XII. Claims 5 and 6
In Claim 5, Chappell alleges that his death sentence was based on unreliable
statements and an unsworn declaration in violation of the Confrontation Clause, which was
raised and denied on direct appeal. (Doc. 25 at 123–29.) Specifically, he alleges that
Kristal’s out-of-court statements were improperly admitted as rebuttal to his mitigation
evidence.28 (Id.) He contends the admission of the statements was an unreasonable
application of clearly established federal law. (Id.) In Claim 6, he alleges that the death
sentence was based on unreliable out-of-court statements in violation of due process and
that this claim was raised and denied on direct appeal. (Doc. 25 at 129–33.) Specifically,
he alleges that the admission of Kristal’s out-of-court statements violated due process
because the statements were unreliable. (Id.) He contends that the Arizona Supreme
Court’s affirmance of their admission was both contrary to, and an unreasonable
application of, clearly established federal law and that the state court’s decision involved
an unreasonable determination of the facts in light of the evidence presented. (Id.)
A. Additional Background
On December 10 and 18, 2003, in response to the choking incident, Mesa Police
Detective Gates interviewed Kristal. (Doc. 120, Tr. Exs. 325 and 327.) Kristal described
what she knew, or believed, about the circumstances of the choking incident and the six
other times when Devon had bruises or injuries after Chappell had cared for him. (Doc.
120, Ex. 327 at 9–14, 16–20.) Kristal later emailed Chappell about her interview with
Gates, in which she described all but one of the six other incidents. (Doc. 120-1 at 41–42,
28 Chappell contends that because Kristal’s recorded statements were taken by police
during a prior investigation of possible abuse of the victim, the primary purpose in
interviewing Kristal was to establish or prove past events potentially relevant to a later
prosecution and were therefore testimonial. (Doc. 25 at 134, citing Davis v. Washington,
547 U.S. 813, 822 (2006)).
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 77 of 140

~ 78 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Ex. 135.) In April and May 2004, respectively, the prosecution disclosed Kristal’s
interview with Gates and her emails to Chappell to the defense. (See R.T. 10/24/07 at 87.)
Prior to trial, the prosecution noticed its intent to introduce Rule 404(b) evidence at
the guilt phase, namely that Chappell had broken Devon’s leg on December 3, 2003;
Chappell moved to preclude that evidence. (R.O.A. at 128, 132.) The prosecution withdrew
the notice. (R.T. 1/12/07 at 3–4.)
The prosecution also separately moved for admission at the penalty phase of any
rebuttal evidence relevant to whether Chappell should be shown leniency, regardless of its
relationship to proffered mitigation evidence. (R.O.A. 87, 102, 111.) Following briefing
and oral argument, the trial court granted the prosecution’s motion. (R.O.A. 131.)
In July 2007, the prosecution asked the court to permit evidence of Devon’s “pattern
of injuries” as rebuttal at the penalty phase, including evidence of the six incidents at issue
in the withdrawn Rule 404(b) notice. (R.O.A. 271 at 4–5.) Defense counsel opposed the
motion contending that the admission would violate various constitutional rights, was
irrelevant, unreliable, and unduly prejudicial. (R.O.A. 395.) Defense counsel also asserted
that before that evidence could be admitted, the prosecution had to prove it by clear and
convincing evidence and that the prosecution would have to prove it beyond a reasonable
doubt to the jury. (R.O.A. 502.) At oral argument on the motion, the prosecution produced
several of Kristal’s emails in which she accused Chappell of having previously injured
Devon. (Doc. 120, Tr. Ex. 321, 135; R.T. 9/19/07 at 31–56.)
The trial court concluded that the prosecution’s proffered evidence was relevant to
whether jurors should show Chappell leniency and admitted the evidence for that purpose,
with the exception of three incidents: facial bruises observed on December 2, 2003, because
Kristal had accepted Chappell’s explanation of the bruises; that the victim had been
frightened of Chappell in mid-November and claimed that Chappell had choked him with
a plastic item because it depended on two witnesses, neither of whom were able to testify;
and Devon’s December 2, 2003 broken leg, unless the prosecution produced “evidence of
a broken tibia at the hospital.” (R.O.A. 512 at 5.) The trial court determined that Kristal’s
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 78 of 140

~ 79 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
emails were admissible to rebut Chappell’s alleged mitigating circumstance that she was
an uncharged co-perpetrator in Devon’s death and that all the alleged incidents identified
by the prosecution and alluded to by Kristal before Devon’s death would therefore come
into evidence. (Id. at 5–6.) It noted that what was inadmissible for one purpose may be
admissible for another purpose “to rebut alleged mitigator that Kristal is an uncharged co-
perpetrator.” (Id.)
At trial, the prosecution avowed that Devon had been treated for a broken leg at a
local hospital, and the court reversed preclusion of evidence regarding the broken leg for
the purpose of whether leniency was warranted. (R.T. 9/24/07 at 43–47.) Chappell, who by
that point, had already asserted a defense based upon Kristal being an uncharged co-
perpetrator, moved to withdraw the allegation that Kristal was an unindicted perpetrator.
(Id. at 47–58, 83.) The court affirmed its analysis in its prior minute entry and denied the
motion. (Id. at 85.)
At the penalty phase, the prosecution introduced Kristal’s emails and her police
interviews following the choking incident, as well as the testimony from Detective Gates.
(Doc. 120, Tr. Ex. 327 at 8–20, R.T. 10/24/07 at 6–23, 42–56, 66.) The prosecution also
introduced evidence regarding Devon’s broken leg, and a portion of Chappell’s December
2003 interview with police, which had been redacted in the guilt phase. (R.T. 10/17/07 at
112–13; R.T. 10/18/07 at 35–47, 48–67; R.T. 10/22/07 at 74–75; Doc. 120, Tr. Ex. 329.)
The jury returned a death sentence. Chappell, 236 P.3d at 1181, ¶ 7.
On direct appeal, Chappell asserted that the admission of Kristal’s statements to
police and in her emails as rebuttal violated the Confrontation Clause and due process. Id.
at 1186–87, ¶¶ 38–41. Chappell acknowledged that the Arizona Supreme Court had
rejected claims that the Confrontation Clause applied to penalty phase rebuttal evidence,
but asked that it revisit the issue in light of United States v. Mills, 446 F.Supp.2d (C.D. Cal.
2006), and several law review articles. Id. at 1187, ¶ 40. The Arizona Supreme Court
denied the Confrontation Clause aspect of the claim, finding that Mills did not conflict with
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 79 of 140

~ 80 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
its decision in McGill.29 Id., ¶ 41 (citing State v. McGill, 140 P.3d 930, 943–44 (Ariz.
2006)).
The Arizona Supreme Court also denied the due process aspect of the claim. Id. at
1186, ¶¶ 38–39. It explained that Chappell had not claimed that he had lacked notice of,
and an opportunity to challenge, Kristal’s statements. Id. at 1186, ¶ 38. Instead, it noted
that Chappell had argued that Kristal’s statements “lacked ‘sufficient indicia of reliability,’
citing Kristal’s lies to police, that she was suspected in Devon’s murder, her statements
had not been made under oath, and that she had a strong incentive to lie to deflect attention
from herself. Id. It found that “although Chappell attacked Kristal’s credibility, her
statements bore sufficient indicia of reliability” where “[t]he State presented direct and
circumstantial evidence of Devon’s prior injuries, and their surrounding circumstances,
including photographs and testimony from lay and expert witnesses, which supported an
inference that Chappell was responsible for those injuries and corroborated Kristal’s
statements.” Id. at 1187, ¶ 39.
B. Merits
Chappell argues that the Arizona Supreme Court’s denial of his Confrontation
Clause claim was contrary to, or an unreasonable application of, clearly established federal
law, and an unreasonable determination of the facts. (Doc. 25 at 123, 129, and 132.)
A sentencing court may consider reliable information, including hearsay, when
sentencing a defendant without violating fundamental fairness or violating the right to
confront or cross-examine. See Williams v. Oklahoma, 358 U.S. 576, 584 (1959); Williams
v. New York, 337 U.S. 241, 250–51 (1949) (sentencer’s consideration of information
29 The Arizona Supreme Court noted that Mills declined to “resolve . . . whether the jury’s
task of weighing aggravating against mitigating factors” was entitled to Confrontation
Clause protection, limiting its holding only to the aggravation phase. 446 F. Supp.2d at
1135 n. 23. The Arizona Supreme Court noted that it had distinguished hearsay used to
establish aggravating circumstances from hearsay used as rebuttal evidence in the penalty
phase, concluding the former was entitled to Confrontation Clause protection and the latter
was not. Id., ¶ 41 (citing McGill, 140 P.3d at 942, ¶ 51.
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 80 of 140

~ 81 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
supplied by witnesses “with whom the accused had not been confronted” and had no
opportunity to cross-examine did not violate Fourteenth Amendment due process); see also
Sivak v. Hardison, 658 F.3d 898, 927 (9th Cir. 2011). Because Chappell did not have a
Sixth Amendment right to confront Kristal at sentencing, his confrontation claim fails.
Williams, 337 U.S. at 250–51; see Sivak, 658 F.3d at 927. And Williams v. New York
forecloses Chappell’s claim that the sentencing court violated his confrontation rights by
considering out-of-court statements. See United States v. Petty, 982 F.2d 1365, 1367–69
(9th Cir. 1993), amended by 992 F.2d 1015 (9th Cir. 1993) (Confrontation Clause does not
apply to sentencing proceedings); United States v. Williams, 41 F.3d 496, 499–500 (9th
Cir. 1994) (“A sentencing judge may consider hearsay evidence without running afoul of
the Confrontation Clause.”); accord, Gentry v. Sinclair, 576 F. Supp. 2d 1130, 1174 (W.D.
Wash. 2008) (collecting cases), aff’d, 705 F.3d 884 (9th Cir. 2013).
Chappell relies on Crawford v. Washington as support for his Confrontation Clause
claim, but Crawford concerned guilt-phase testimony, not sentencing evidence. 541 U.S.
36 (2004); see United States v. Littlesun, 444 F.3d 1196, 1199 (9th Cir. 2006); see also
Kansas v. Carr, 577 U.S. 108, 126 (2016) (declining to review whether the Confrontation
Clause entitled a defendant at the penalty phase “to cross-examine witnesses” whose
statements, recorded in police reports, were referenced by the prosecution, but stating the
statements should be omitted at resentencing). The Arizona Supreme Court’s denial of the
Confrontation Clause aspect of this claim was neither contrary to, nor an unreasonable
application of, clearly established federal law, and Claim 5 will be denied.
Chappell’s due process claim fairs no better. The Constitution protects a defendant
from a conviction “based on evidence of questionable reliability, by affording the
defendant the means to persuade the jury that the evidence is “unworthy of credit.” Perry
v. New Hampshire, 565 U.S. 228, 237 (2012). The means to do so includes the right to
counsel, Gideon v. Wainwright, 372 U.S. 335, 343–45 (1963); compulsory process, Taylor
v. Illinois, 484 U.S. 400, 408-09 (1988); and confrontation and cross-examination of
witnesses, Delaware v. Fensterer, 474 U.S. 15, 18–20 (1985) (per curiam). Perry, 565 U.S.
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 81 of 140

~ 82 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
at 237. And “[d]ue process requires that some minimal indicia of reliability accompany a
hearsay statement.” United States v. Petty, 982 F.2d 1365, 1369 (9th Cir. 1993) (citing
Reid, 911 F.2d at 1464). A defendant, moreover, has a due process right not to be sentenced
on the “basis of materially incorrect information.” Id.
In terms of Chappell’s rights to notice and to be heard, the defense was notified well
before the guilt phase commenced. (R.T. 10/24/07 at 87; R.O.A. 271 at 4–5.) Although
Chappell could not cross-examine Kristal about her statements or testify himself to rebut
her statements without waiving his Fifth Amendment rights, defense counsel could and did
attack Kristal’s credibility at trial. (See, e.g., R.T. 10/03/07 at 101−22, testimony that
Kristal had stated that Devon was a problem for her relationship with Chappell, suggesting
that Kristal was involved in the Devon’s murder; R.T. 10/09/07, at 92−115, Kristal’s
alleged prior neglect of the victim; R.T. 10/10/07 at 77, labeling Kristal as an investigative
lead by detective in terms of the murder investigation because Kristal had lied to detectives
many times during the investigation; R.T. 10/24/07 at 58, 112, 136−37, admission by
Kristal that she had given Devon “a hard, hard whipping” and that she had placed a pillow
over the toddler’s face to make him stop crying at night; R.T. 10/29/07 at 135–55, attacking
Kristal’s character and credibility during her rebuttal closing argument, arguing why the
jurors should not believe Kristal’s accusations against Chappell). Further, Chappell’s father
testified that Devon was not limping when Chappell left their home to take him to
preschool, and Chappell’s mother testified that she saw a bruise on Devon’s face a day
earlier, suggesting that he broke his leg at the preschool and that the bruise was unrelated
to his broken leg. (R.T. 10/17/07, at 112–13; R.T. 10/18/07, at 35–47.) In addition,
Chappell provided police with an alternative cause for the broken leg, when Chappell slid
back his car seat into Devon. (Doc. 120, Tr. Ex. 329 at 33–36.)
The state courts found that Kristal’s hearsay statements to detectives had some
indicia of reliability because they were consistent with her emailed statements to Chappell.
See Idaho v. Wright, 497 U.S. 805, 821 (1990) (finding appropriate to consider
“spontaneity and consistent repetition” of hearsay statement in deciding whether the
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 82 of 140

~ 83 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
statement has an indicia of reliability). In addition, other evidence corroborated Kristal’s
statements about Devon’s fractured leg, such as the preschool teacher’s testimony, who
testified that she saw Chappell carry Devon into the bathroom at the school and place him
on the toilet, upon arrival at the preschool. (R.T. 10/22/07 at 74–80, 83.) When she checked
on Devon, she found him standing next to the toilet and pulling up his pants, but unable to
put weight on his leg and whimpering. (Id. at 81–84.) She also saw a bruise on his cheek.
(Id. at 88.) When she later told Chappell about Devon’s leg, and that Devon was unable to
explain how he had been injured it, Chappell told her that Devon had fallen from the toilet.
(Id. at 85, 101.) The teacher doubted Chappell’s explanation because she did not hear him
cry in the bathroom. (Id. at 101.)
As discussed above, Dr. Greyer testified that Devon had a spiral fracture, which
required a rotational or twisting motion, and that Devon’s treating physician saw a facial
bruise (R.T. 10/18/07 at 48–51, 53–54.) Dr. Greyer found Chappell’s explanation for the
broken leg “improbable” because the spiral facture would have been very painful and likely
would have caused “some kind of outburst.” (Id. at 57–60.) She also expressed concerns
for Devon’s repeated unexplained injuries while in Chappell’s care. (Id. at 57–60, 64, 67.)
The evidence described above, taken together, provides indicia of reliability to
Kristal’s hearsay statements admitted at the penalty phase. The Arizona Supreme Court’s
denial of this claim was neither contrary to, nor an unreasonable application of, clearly
established federal law. Accordingly, Claims 5 and 6 will be denied.
XIII. Claim 7
Chappell claims that the prosecution denied him due process, by committing
misconduct in (1) offering irrelevant, inflammatory testimony on, and photographs of,
Devon’s lung injuries to help show especial cruelty; (2) discussing those injuries in its
aggravation-phase closing argument; and (3) urging the jury to consider the “community”
in its aggravation- and sentencing-phase closing arguments. (Doc. 25 at 133–36.) Because
the record belies these subclaims, the Court will deny Claim 7.
///
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 83 of 140

~ 84 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1. Standard
Courts narrowly review alleged prosecutorial misconduct for habeas relief. Darden
v. Wainwright, 477 U.S. 168, 181 (1986) (citing Donnelly v. DeChristoforo, 416 U.S. 637,
642 (1974)). To merit this relief, the misconduct must “so infect[] the trial with unfairness
as to make the resulting conviction a denial of due process.” Donnelly, 416 U.S. at 642–
43; see also Smith v. Phillips, 455 U.S. 209, 219 (1982) (noting that “the touchstone” of
this standard is the trial’s fairness, not the prosecutor’s “culpability”). To that end, the
prosecutor’s conduct’s “effect on the trial as a whole” must be assessed “in context,” see
Floyd v. Filson, 949 F.3d 1128, 1150 (9th Cir. 2020) (citing United States v. Young, 470
U.S. 1, 17-20 (1985)); “undesirable or even universally condemned” conduct alone will
not suffice, see Darden, 477 U.S. at 181. Courts therefore consider the “Darden factors”:
the weight of the evidence, the prominence of the comment in the context of
the entire trial, whether the prosecution misstated the evidence, whether the
judge instructed the jury to disregard the comment, whether the comment
was invited by defense counsel in its summation and whether defense counsel
had an adequate opportunity to rebut the comment.
Hein v. Sullivan, 601 F.3d 897, 914 (9th Cir. 2010). In the end, a denial of due process may
warrant relief.
But the inquiry does not end there. The misconduct must also prejudice the
petitioner under Brecht. Sechrest v. Ignacio, 549 F.3d 789, 808 (9th Cir. 2008) (citing
Brecht, 507 U.S. at 622). Otherwise, the error is presumed harmless. Id.
2. The Evidence of and Argument on Devon’s Injuries
Medical examiner, Dr. John Hu performed “a full autopsy” of Devon. (R.T. 8/13/07
at 51.) At the trial’s guilt phase, without objection, the trial court admitted photos of
Devon’s lungs from the autopsy, and Dr. Hu used them to testify that Devon’s lungs were
injured (“lung edema and congestion with subpleural hemorrhage”). (Id. at 54–60; Exs.
104–08.) He opined that those injuries showed that Devon had drowned and that persons
who drown stay conscious for 30 seconds to two minutes and remain alive for four to five
minutes. (R.T. 8/13/07 at 62–63.)
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 84 of 140

~ 85 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Dr. Hu returned to the stand at the aggravation phase, where he testified that Devon
was conscious while trying to breath under water and that he drowned. (R.T. 8/30/07 at
19.) He also described what happens to persons held under water: if they try to hold their
breaths, they will do so until their blood-oxygen levels hit a certain point, at which time
they will breathe in water, not air. (Id. 19–20.) Much water will enter the lungs, and their
“mental state” will decline until they lose consciousness. (Id. at 20.) He opined they will
lose consciousness in 30 seconds to two minutes and die in four to five minutes. (Id.) He
then returned to the photos of Devon’s lungs to describe their injuries. (Id. at 21–27; Exs.
102–03, 105–08.) He opined that Devon himself remained conscious under water for 30
seconds to two minutes. (R.T. 8/30/07 at 27.)
On cross- examination, Dr. Hu testified that Devon’s death by drowning alone could
not prove the manner in which he drowned. (Id. at 28–29.) He also testified that an
unconscious person could no longer feel pain. (Id. at 33.)
After Dr. Hu finished testifying, the court instructed the jurors that they had to
decide the facts solely from the guilt- and aggravation-phase evidence and “not to be
swayed by mere sentiment, conjecture, sympathy, [or] passion . . . .” (Id. at 38.) The court
added that statements of counsel was “not evidence.” (Id. at 39.) Also, the court told the
jurors that to find especial cruelty, they would have to find that Devon “consciously
suffered physical or mental pain, distress or anguish prior to death . . . for at least some
portion of time when the pain and/or anguish was inflicted.” (Id. at 44.)
In her closing argument, the prosecutor told the jurors they could consider the
autopsy photos and Devon’s lung injuries. (Id. at 48–49.) Chappell’s counsel, in closing,
used Dr. Hu’s testimony to argue that Devon did not consciously suffer physical pain based
on Chappell’s statement to the press that Devon drowned in less than a minute. (Id. at 56–
57.) In rebuttal, the prosecutor commented on the weight, hemorrhaging, and bleeding of
Devon’s lungs. (Id. at 59–60.) She argued that Devon suffered physical pain in the first 30
seconds under water by holding his breath and then expanding his lungs by breathing in
water. (Id. at 60.) She noted that the evidence did not show that Devon instantly lost
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 85 of 140

~ 86 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
consciousness in the water; he “fought valiantly for his life.” (Id. at 61.) She concluded that
he suffered physical pain before he died. (Id.)
On direct appeal, Devon claimed that the prosecution committed misconduct by
offering irrelevant evidence of Devon’s injuries and discussing that evidence in its closing
arguments, to help prove especial cruelty, because those injuries occurred after Devon
became unconscious. Chappell, 236 P.3d at 1183, ¶¶ 20–21.
With respect to this claim, the Arizona Supreme Court could not “determine
whether the water-inhalation injuries occurred when Devon was conscious.” Id. at 1183, ¶
21. Still, assuming that they occurred after he became unconscious, the court could not
“conclude that the prosecutor committed misconduct.” Id. The court explained that Dr. Hu
testified about the injuries, without objection, at the trial’s guilt phase, and the trial court
instructed the jurors that “they could consider everything they had previously heard in
deciding whether the [“especially cruel”] aggravator had been proven beyond a reasonable
doubt.” Id. Chappell now argues that this decision contradicted, or involved an
unreasonable application of, clearly established federal law, and was an unreasonable
determination of the facts in light of the evidence presented. (Doc. 25 at 134.)
Counsel receive “wide latitude” in presenting their closing arguments. United States
v. Gwaltney, 790 F.2d 1378, (9th Cir. 1986) (citing United States v. Prantil, 764 F.2d 548,
555 (9th Cir. 1985)). They may argue how the jury should interpret evidence in the record.
Menendez v. Terhune, 422 F.3d 1012, 1036–37 (9th Cir. 2005).
Chappell argues that Devon’s lung injuries were irrelevant because Chappell did not
contest that Devon had drowned. (Doc. 25 at 135-36.) But the prosecution still had the
burden to prove that element beyond a reasonable doubt. See Estelle v. McGuire, 502 U.S.
62, 69 (1991) (noting that “the prosecution’s burden to prove every element of the crime
is not relieved by a defendant’s tactical decision not to contest an essential element of the
offense”); A.R.S. § 13-703(B), (E), and (F); A.R.S. § 13-703(F)(6).
Also, the photographs were relevant because they corroborated Dr. Hu’s testimony
about his findings from the autopsy. E.g., Garcia v. v. Garcia, No. CV 10-6303-SVW (SP),
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 86 of 140

~ 87 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2013 WL 10889202, at *8 (C.D. Cal. Aug. 16, 2013) (citing People v. Scheid, 939 P.2d
748, 757 (Cal. 1997)) (finding photographs relevant “admitted to corroborate witnesses’
testimony and the prosecution’s theory”); see also State v. Anderson, 111 P.3d 369, 382, ¶
39 (Ariz. 2005) (quoting State v. Chapple, 660 P.2d 1208, 1215 (Ariz. 1983), superseded
by statute, as stated in State v. Riley, 459 P.3d 66, 79, ¶ 7 (Ariz. 2020)) (confirming that
“[p]hotographs may be relevant ‘. . . to corroborate state witnesses . . . and to corroborate
the states theory of how and why the homicide was committed’”).
That aside, there is evidence that Devon’s lung injuries occurred before he became
unconscious. Dr. Hu opined and explained why Devon was conscious under water, trying
to breath, filing his lungs with water—injuring his lungs. (R.T. 8/30/07 at 19–27.) This
evidence allowed the prosecutor to infer that Devon’s lung injuries occurred before Devon
fell unconscious. And an inference to the contrary did not render the prosecution’s
inference unreasonable. Donnelly v. DeChristoforo, 416 U.S. 637, 643–47 (1974).
Chappell, moreover, had an adequate opportunity to rebut the evidence on cross-
examination (R.T. 8/30/07 at 28–33) and in his closing argument (id. at 56–57). In fact, his
counsel used Dr. Hu’s testimony to persuade the jurors that Devon’s lung injuries occurred
after Devon lost consciousness and did not feel physical pain. (Id. at 28–33.)
Besides, the evidence of the lung injuries was cumulative to the evidence admitted
without objection at the guilt phase. (Compare R.T. 8/13/07 at 48, 51, 54–60, 62–68, 73–
78, and Exs. 104–08, with R.T. 8/30/07 at 19–27; Exs. 102–03, 105–08.) E.g., Pursley v.
Dretke, 114 Fed.Appx. 630, 634–35 (5th Cir. 2004) (unpublished) (holding that admission
of testimony did not violate the Fourteenth Amendment, in part, because it was cumulative
of other testimony offered without objection); Walker v. Quarterman, No. H-07-3108,
2009 WL 497155, at **10–11 (S.D. Tex. Feb. 26, 2009) (citing Pursley, 114 Fed.Appx. at
634–35). In short, the prosecution did not commit misconduct, let alone misconduct that
denied Chappell due process.
To be sure, Chappell did not suffer prejudice. The evidence, as mentioned, was
cumulative. Id. at *11 (holding that, assuming poem was victim-impact evidence, its
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 87 of 140

~ 88 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
admission was harmless under Brecht because it “was cumulative of testimony already
before the jury”). And the Arizona Supreme Court affirmed the jury’s finding of especial
cruelty based solely on evidence of Devon’s mental anguish, not physical harm. See Karis
v. Calderon, 283 F.3d 1117, 1127 (9th Cir. 2002) (finding that Karis was not prejudiced
by one’s identification of her because there was sufficient evidence without that
identification); see also Chappell, 236 P.3d at 1181-82, ¶¶ 11-15. Hence, Chappell’s first
and second subclaims do not warrant relief and are denied.
3. The Prosecutor’s Comments on the “Community”
At the end of the trial’s guilt phase, the jury convicted Chappell of child abuse when
he choked Devon in December 2003 and first-degree murder by forcibly drowning him
three months later. Chappell, 225 P.3d at 1180-81. The trial court then held the aggravation
phase for the jury to determine Chappell’s eligibility for a death sentence. Id. at 1181.
Under A.R.S. § 13-703(B) and (E), the jury could find him eligible only if it found at least
one aggravating circumstance under A.R.S. § 13-703(F) beyond a reasonable doubt. The
prosecution alleged, as such circumstances, prior serious-offense conviction, especial
cruelty, and Devon’s young age. Chappell, 225 P.3d at 1181.
The trial court instructed the jury of its duty to determine the facts based solely on
the evidence from the trial’s guilt and aggravation phases and “not to be swayed by . . .
public opinion[] or public feeling.” (R.T. 8/30/07 at 38.) The court also informed them that
the statements of counsel was not evidence. (Id. at 39.)
The parties then made their closing arguments. In her rebuttal argument, the
prosecutor concluded:
You have the evidence before you. The State is very confident that you will
find that when the community, when the legislature set forth statutory
aggravators, those things that make a person eligible for death; that those
three that apply in this case, the State is confident you will find each of those
three applied to this defendant and that each of those three are proven well
beyond a reasonable doubt.
(R.T. 8/30/07 at 62.)
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 88 of 140

~ 89 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
After the jury found Chappell eligible for a death sentence and the parties offered
evidence at the sentencing phase, the court repeated the instructions noted in the
aggravation phase. (R.T.10/25/07 at 8, 10.) The court also informed the jurors that they had
to individually determine whether mitigating circumstances existed and whether those
circumstances warranted leniency. (Id. at 15-17.) Last, the court stated that the jury itself
would determine whether to sentence Chappell to death. (Id. at 17.)
In her closing and rebuttal argument, Chappell’s counsel echoed the court’s
sentiment on the jurors’ individual assessment on mitigating circumstances. (Id. at 24-26,
156, 162.) The prosecutor added in hers:
Someone much smarter than I wrote, Society declares it’s attitude towards
crimes by the punishment that it gives. We have expression what we feel
about a crime by the punishment that we impose. Another way to say that is
that the punishment should fit the crime. As you heard through these
instructions, punishment should fit the offender, the person who chose to take
that life, and that’s what we are talking about during this phase these past
several weeks of testimony that about mitigation.
(R.T. 10/29/07 at 22.)
On direct appeal, Chappell protested the prosecutor’s two comments on the
“community” described above. (O.B. at 138.) The court, however, found “neither comment
. . . improper” because, “[i]n context, both comments referred to the punishment the
legislature ha[d] prescribed for certain crimes[.]” Chappell, 236 P.3d at 1184, ¶ 24 (citing
United States v. Monaghan, 741 F.2d 1434, 1441–42 and n.30 (D.C. Cir.1984)).
Chappell now argues that this decision contradicted, or involved an unreasonable
application of, clearly established federal law, and was an unreasonable determination of
the facts in light of the evidence presented. (Doc. 25 at 134.)
Although counsel receive “wide latitude” in presenting their closing arguments,
United States v. Gwaltney, 790 F.2d 1378, (9th Cir. 1986), they may not lead the jury “to
believe that the responsibility for determining the appropriateness of the defendant’s death
rests elsewhere,” Caldwell, 472 U.S. at 328-29. Also, “[a] jury sitting in a capital case must
be given a clear choice between the death penalty and a life sentence.” Sechrest, 549 F.3d
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 89 of 140

~ 90 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
at 807 (citing Coleman v. Calderon, 150 F.3d 1105, 1118 (9th Cir.), reversed on other
grounds by 525 U.S. 141 (1998)).
The United States Supreme Court has warned against a prosecutor’s “statements
designed to appeal to the passions, fears and vulnerabilities of the jury.” United States v.
Weatherspoon, 410 F.3d 1142, 1149 (9th Cir. 2005). “Statements ‘clearly designed to
encourage the jury to enter a verdict on the basis of emotion rather than fact’ are ‘irrelevant
and improper.’” United States v. Nobari, 574 F.3d 1065, 1076 (9th Cir. 2009) (quoting
United States v. Weatherspoon, 410 F.3d 1142, 1150 (9th Cir. 2005)). For instance,
prosecutors “may not urge jurors to convict a criminal defendant in order to protect
community values, preserve civil order, or deter future lawbreaking.” United States v.
Nobari, 574 F.3d 1065, 1076 (9th Cir. 2009) (internal quotations removed); e.g., Floyd v.
Filson, 949 F.3d 1128, 1151 (9th Cir. 2020) (quoting Zant v. Stephens, 462 U.S. 862, 879
(1983)) (holding that the prosecution’s comment that sentencing the accused to death
would “send a message to others in [their] community” improperly “implie[d] that the jury
could” handout that sentence “to send a message, rather than making ‘an individualized
determination’”).
Chappell protests the prosecutor’s comments on “the community” because “this
case received considerable local media coverage, the prosecutor was arguing that the jurors
risked the wrath of the community if they failed to impose death.” (Doc. 25 at 135.) This
Court disagrees.
In reviewing the comments in context, the Arizona Supreme Court reasonably found
that “both comments referred to the punishment the legislature ha[d] prescribed for certain
crimes.” See Chappell, 236 P.3d at 1184, ¶ 24. The prosecutor did not ask the jury to send
a message to the community by sentencing Chappell to death. Nor did she suggest that the
jurors would face any sort of consequence from the community if they spared his life. The
prosecutor only briefly mentioned that the community, through the legislature, chose
punishments to fit the crimes and the criminals, and that the punishment of death fit
Chappell and his murder of Devon. see also Rowland v. Chappell, 876 F.3d 1174, 1190
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 90 of 140

~ 91 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(9th Cir. 2017) (reviewing a prosecutor’s comments under “AEDPA’s highly deferential
standard of review” and holding that the comments did not minimize the jury’s duty to
decide whether to sentence defendant to death).
In addition, the court instructed the jurors, and Chappell’s counsel argued, that they
had to individually find whether any mitigating circumstances existed and whether those
circumstances called for leniency. See Floyd, 949 F.3d at 1151 (emphasizing that the trial
court had instructed the jury that the comments of counsel were not evidence); Zapata v.
Vasquez, 788 F.3d 1106, 1123 (9th Cir. 2015) (citing Donnelly v. DeChristoforo, 416 U.S.
637, 645 (1974); Cheney v. Washington, 614 F.3d 987, 997 (9th Cir. 2010)) (“By contrast,
cases that have held prosecutorial misconduct nonprejudicial have pointed to the use of a
specific limiting instruction.”). In brief, the record shows that the prosecutor did not shift
the jury’s duty to the community, and Chappell was not prejudiced.
Claim 7 will be denied.30
XIV. Claim 8
Chappell’s jury found, as an aggravating circumstance under A.R.S. § 13-703(F)(6)
(West 2007), that Chappell murdered Devon “in an especially . . . cruel . . . manner.” See
§ 13-703(F)(6). The factfinder may find the (F)(6) circumstance if it finds that “[t]he
defendant committed the offense in an especially heinous, cruel or depraved manner.”
A.R.S. § 13-703(F)(6). Chappell, 225 P.3d at 1181, ¶ 7 (citing A.R.S. § 13-703(F)(6)). This
circumstance may be found based on especial cruelty absent a finding that the murder was
especially heinous or deprived. State v. Libberton, 685 P.2d 1284, 1291 (Ariz. 1984) (citing
State v. Gillies, 662 P.2d 1007, 1019 (Ariz. 1983).
30 Because Chappell did not “show that any prosecutorial misconduct [had] occurred,” the
Arizona Supreme Court did not consider whether the “‘cumulative effect’” of the incidents
of alleged misconduct—even if each incident, alone, did not warrant relief—“‘show[ed]
that the prosecutor intentionally engaged in improper conduct.’” Chappell, 236 P.3d at
1184, ¶ 25 (quoting State v. Roque, 141 P.3d 368, 403 (Ariz. 2006), abrogated on different
grounds by State v. Escalante-Orozco, 386 P.3d at 798 (Ariz. 2017), abrogated on different
grounds by State v. Escalante, 425 P.3d 1078 (Ariz. 2018); citing State v. Bockarski, 189
P.3d 403, 419 (Ariz. 2008)). The Court therefore will follow suit.
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 91 of 140

~ 92 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Chappell claims the finding of especial cruelty was unconstitutional in five ways
(Doc. 25 at 136–46): (1) the jury instruction defining “especially cruel” inadequately
narrowed the aggravating circumstance (id. at 140-41); (2) insufficient evidence supported
the finding (id. at 137–40); (3) Dr. Hu testified on the ultimate issue, whether the murder
was “especially cruel” (id. at 141–43); and the State used (4) Chappell’s child-abuse
conviction and (5) Devon’s age-based helplessness to support finding especial cruelty (id.
at 143–46). Because the record and precedent of the United States Supreme Court refutes
these subclaims, the Court will deny Claim 8.
A. Narrowing Instruction
The trial court instructed the jury on the “especially cruel” aggravating circumstance
as follows:
All first degree murders are to some extent cruel. However this aggravating
circumstance cannot be found to exist unless the State has proved beyond a
reasonable doubt that the murder was especially cruel.
“Especially” means unusually great or significant. Especially cruel. The term
“cruel” focuses on the victim’s pain and suffering.
The finding [sic] that the murder was committed in an “especially cruel”
manner, you must find that the victim consciously suffered physical or
mental pain, distress or anguish prior to death.
A murder is especially cruel when there has been infliction of pain and
suffering in an especially wanton and insensitive or vindictive manner. The
defendant must know or should have known that the victim would suffer.
Victim must be conscious for at least some portion of time when the pain
and/or anguish was inflicted. You may not consider the age of the victim in
any way in deciding whether the murder was committed in an especially cruel
manner.
(R.T. 8/30/07 at 43–44.)
On direct appeal, Chappell claimed that the instruction did not “sufficiently narrow”
that aggravating circumstance (O.B. at 31–43), which the Arizona Supreme Court denied
on the merits, Chappell, 236 P.3d at 1184-85, ¶¶ 26–27. The Arizona Supreme Court
acknowledged that, absent more, the circumstance was “unconstitutionally vague on its
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 92 of 140

~ 93 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
face,” id. at 1184, ¶ 26 (citing Walton, 497 U.S. 639), but that narrowing instructions could
cure the vagueness, id. (citing State v. Tucker, 160 P.3d 177, 189 (Ariz. 2007), and State v.
Anderson, 111 P.3d 369, 394–95, ¶¶ 109–14 (Ariz. 2005)). The state supreme court found
the trial court’s instruction sufficiently narrowed the circumstance so that it was not
unconstitutionally vague. Id. at 1184–85, ¶ 27. Chappell argues the Arizona Supreme
Court’s determination was contrary to, or unreasonably applied, the controlling clearly
established federal law, and that the Arizona Supreme Court unreasonably determined the
facts in light of the evidence. (Doc. 25 at 140–41.)
Under the Eighth and Fourteenth Amendments, a jury’s discretion to “take[] or
spare[]” one’s life “must be suitably directed and limited so as to minimize the risk of
wholly arbitrary and capricious action.” Gregg v. Georgia, 428 U.S. 153, 189, 200 (1976)
(citing Furman v. Georgia, 408 U.S. 238 (1972)). To that end, courts must give narrowing
instructions to cure facially unconstitutionally vague aggravating circumstances. Walton,
497 U.S. at 653.
In Walton, the Supreme Court found the jury instructions given for Arizona’s
“especially cruel” aggravating circumstance—similar to that at issue here—sufficiently did
so. Compare id. at 653-55 (upholding construction that “‘a crime is committed in an
especially cruel manner when the perpetrator inflicts mental anguish or physical abuse
before the victim’s death’” and that “‘[m]ental anguish includes a victim’s uncertainty as
to his ultimate fate’” and “limit[ing] the cruelty circumstance . . . to situations where the
suffering of the victim was intended by or foreseeable to the killer”), with R.T. 8/30/07 at
43–44. The instructions in Chappell’s case further narrowed “especially cruel” by:
• defining the manner and mens rea to find Chappell inflicted “pain and
suffering”;
• requiring Devon to have been “conscious for at least some” part of
such infliction; and
• barring “consider[ation of]” the Devon’s age “in any way” to find the
offense was especially cruel.
(R.T. 8/30/07 at 43–44.) In short, the instructions given to Chappell’s jury satisfied Walton,
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 93 of 140

~ 94 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
and thus the Arizona Supreme Court’s decision was neither contrary to, nor unreasonably
applied controlling federal law.
Chappell claims the instruction failed to require the jury to find that Devon suffered
pain in addition to that inherent in drowning. (Doc. 25 at 140-41.) But he does not cite, and
this Court has not found, any holding of the United States Supreme Court that requires such
finding by the factfinder. See Williams, 529 U.S. at 381 (unable to grant relief if the
Supreme Court has not “broken sufficient legal ground” on a constitutional principle
advanced by a petitioner). Arizona’s construction of “especially cruel” does not require a
finding that pain beyond that inherent in the drowning must be found. See Chappell, 236
P.3d at 1184-85 (citing cases confirming that the Arizona Supreme Court “has never
required” pain “beyond the pain inherent in the manner of death itself”); see also Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions.”); Briceno v. Scribner, 555
F.3d 1069, 1077 (9th Cir. 2009) (noting that “[f]ederal habeas courts do not review
questions of state evidentiary law”).
Chappell’s first subclaim will be denied.
B. Sufficiency of the Evidence
Chappell raised his insufficient evidence subclaim on direct appeal (O.B. at 9–30),
which the Arizona Supreme Court denied on the merits, stating:
During the aggravation phase, the medical examiner, Dr. Hu, testified that
Devon likely was conscious for thirty seconds to two minutes while being
held underwater. Dr. Hu would not opine whether a two-year-old under those
circumstances could understand that he was about to die, but testified that
Devon certainly would have understood the need to breathe. In addition, Dr.
Hu described at length the physiological reactions that occur during
drowning, including hemorrhaging and acute expansion of the lungs and the
large quantity of foam produced when inhaled water mixes with air and
proteins in the lungs. Dr. Hu also described several post-mortem
photographs, previously admitted during the guilt phase, which depicted
hemorrhaging of Devon’s lungs and foam on his face.
Chappell told reporters during a post-arrest press conference that Devon had
struggled while in the pool. Chappell also stated that, hours after the
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 94 of 140

~ 95 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
drowning, he could still remember Devon “looking at [him] straight in the
eyes as he was in the water.” These facts support a finding that Devon
consciously experienced mental anguish before his death. The jurors also
could have reasonably inferred from this evidence that Chappell knew or
should have known that Devon would suffer. Therefore, sufficient evidence
supported the jurors’ finding that the murder was especially cruel.
Chappell, 236 P.3d at 1182, ¶¶ 12–13. Chappell argues that the Arizona Supreme Court’s
decision was contrary to, or unreasonably applied, controlling clearly established federal
law, and unreasonably determined the facts. (Doc. 25 at 137–40.)
Whether a state court misapplied an aggravating circumstance to the facts of a case
is a question of state law. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990). Hence, this Court
will review the “constitutionally narrowed aggravating circumstance” above “to
determin[e] whether the state court’s finding was so arbitrary or capricious as to constitute
an independent due process or Eighth Amendment violation.” Id. (citing Donnelly v.
DeChristoforo, 416 U.S. 637, 642-43 (1974)). To do so, this Court will consider “whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements” of the aggravating circumstance “beyond
a reasonable doubt.” Jackson, 443 U.S. at 319 (emphasis in original); Lewis, 497 U.S. 764;
see also Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (citing § 2254(d)(2)) (reversing
only “objectively unreasonable” state-court factual decisions based on the state-court
evidence). Thus, this Court must deny Chappell’s second subclaim if, viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have found
that Chappell murdered Devon in an especially cruel manner.
The Arizona Supreme Court has characterized the especially cruel aggravating
circumstance as addressing the suffering of the victim, see State v. Murray, 906 P.2d 542,
570 (Ariz. 1995), physically or mentally, State v. Martinez, 189 P.3d 348, 363 (Ariz. 2008).
Indeed, it “focuses on the victim’s state of mind,” Tucker, 160 P.3d at 200, throughout “the
entire murder transaction and not simply the final act that killed the victim,” State v.
Ellison, 140 P.3d 889, 925 (Ariz. 2006). Also, the defendant must have known “or should
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 95 of 140

~ 96 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
have known that the victim would experience mental anguish or physical pain and that the
victim was conscious during some part of the violence.” Id. Such anguish alone amply
supports an “especially cruel” finding. Id. (quotations omitted).
The Arizona Supreme Court found sufficient evidence showed that Devon felt, and
that Chappell knew or should have known that Devon felt, such anguish. Chappell, 236
P.3d at 1182, ¶¶ 12–13 and ¶ 15 n.4. The evidence, viewed in the light most favorable to
the prosecution, is sufficient to support that Devon suffered mental anguish before he died
and that Chappell knew, or should have known, that Devon would suffer such anguish.
(Ex. 142 at 6–9, 11; R.T. 8/30/07 at 19–27, 30–31, 35–36, reflecting the findings of the
Arizona Supreme Court.) Thus, that evidence was sufficient to support that a rational trier
of fact could have found that Devon consciously suffered mental anguish before his death
and that Chappell knew or should have known that Devon would suffer such anguish.
Devon understood the need to breath and thus struggled under water while Chappell
forcibly drowned him, while Devon looked into his eyes. To find this evidence sufficient
to support an “especially cruel” finding does not result in all murders being “death-
eligible.” (See Doc. 25 at 138.) The Arizona Supreme Court’s decision was neither contrary
to, nor an unreasonable application of, clearly established federal law, and did not
unreasonably determine the facts.
To the extent Chappell disagrees, he simply invites this Court to reweigh the
evidence and reassess witness testimony—tasks outside this Court’s province. (Doc. 25 at
138-39). He notes that there was no evidence of “external trauma” on Devon and that Dr.
Hu questioned whether a two-year-old would understand the mental anguish of drowning,
alleging that one could only speculate that Devon tried to hold his breath under water and
that his injuries occurred while conscious and that he was likely conscious for no more than
30 seconds “during the drowning.” But “28 U.S.C. § 2254(d) gives federal habeas courts
no license to redetermine credibility of witnesses whose demeanor has been observed by
the state trial court, but not by them.” Marshall v. Longberger, 459 U.S. 422, 434 (1983);
Jackson, 443 U.S. at 326 (requiring a court, when “faced with a record of historical facts
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 96 of 140

~ 97 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
which supports conflicting inferences must presume—even if it does not appear in the
record—that the trier of fact resolved any such conflicts in favor of the prosecution, and
must defer to that resolution”); see also Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997)
(respecting domain of trier of fact to decide credibility of witnesses, resolve evidentiary
conflicts, and draw reasonable inferences from proven facts by assuming that trier of fact
resolved all conflicts in a manner that supports the finding of guilt). Also, Chappell does
not cite, and the Court has not found a holding of the United States Supreme Court that
specifies that a victim had to have been found to suffer for a minimum length of time. See
Williams, 529 U.S. at 381.
Chappell’s second subclaim will be denied.
C. Dr. Hu’s Testimony
At the aggravation phase, Dr. Hu testified and opined that “not being able to breath”
is “a horrifying experience” and a 10 on a scale of 1 to 10. (R.T. 8/30/07 at 23, 30.) Chappell
claimed, on direct appeal, that Dr. Hu testified on the ultimate issue, whether the murder
of Devon was “especially cruel.” (O.B. at 92–99.) The Arizona Supreme Court denied this
claim on the merits, Chappell, 236 P.3d at 1182–83, ¶¶ 16–18, as follows:
Arizona Rule of Evidence 704 permits expert testimony that “embraces an
ultimate issue to be decided by the trier of fact,” as long as the opinion
“assist[s] the trier of fact to understand the evidence or to determine a fact in
issue.” Ariz. R. Evid. 704 & cmt. However, “[w]itnesses are not permitted as
experts on how juries should decide cases,” id., and trial courts should
exclude relevant evidence when “its probative value is substantially
outweighed by the danger of unfair prejudice,” Ariz. R. Evid. 403.
Chappell cites two out-of-state cases in which experts explicitly opined on
whether the murder had been committed in the manner of the statutory
aggravator. See State v. Hamilton, 681 So.2d 1217, 1225–26 (La. 1996)
(expert testified murder was “heinous, atrocious or cruel”); Commonwealth
v. Crawley, 526 A.2d 334, 346–47 (Pa. 1987) (expert defined torture as the
production of “conscious pain” and testified that the murders satisfied “the
definition of the word torture”). But, here, Dr. Hu merely testified about the
experience of drowning and did not opine that Devon’s murder was
committed in an “especially cruel” manner. His comments neither were
improper nor embraced an ultimate issue.
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 97 of 140

~ 98 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Id. at 1182–83, ¶¶ 17–18 (alterations in original). Chappell now argues that this decision
was contrary to, or unreasonably applied, controlling Supreme Court law, and
unreasonably determined the facts. (Doc. 25 at 141–43.)
Even assuming that Dr. Hu opined on the ultimate issue, Chappell does not cite, and
this Court has not found, a holding of the United States Supreme Court barring testimony
on ultimate issues before the jury. See Moses v. Payne, 555 F.3d 742, 761 (9th Cir.
2009) (holding that “the constitutionality of such testimony is ‘an open question in [the
Supreme Court’s] jurisprudence’”) (brackets in original) (quoting Carey v. Musladin, 549
U.S. 70, 76 (2006); Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1016
(9th Cir. 2004)) (quoting Mukhtar v. Cal. State Univ., Hayward, 299 F.3d 1053, 1066 n.10
(9th Cir. 2002), overruled on different grounds in United States v. Bacon, 979 F.3d 766
(9th Cir. 2020)) (“‘It is well-established . . . that expert testimony concerning an ultimate
issue is not per se improper.’”).
Chappell also relies on Godfrey v. Georgia, in which the United States Supreme
Court addressed whether “the Georgia Supreme Court adopted such a broad and vague
construction” of Georgia’s aggravating circumstance—that the offense “was outrageously
or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an
aggravated battery to the victim”—that it violated the Eighth and Fourteenth Amendments.
446 U.S. 420, 423 (1980). The Supreme Court held that the aggravating circumstance was
not properly narrowed so as not to be unconstitutionally vague but did not consider whether
an expert had opined about an ultimate issue in connection with an aggravating
circumstance. Thus, Godfrey does not support Chappell’s argument in this subclaim.
Further, the Arizona Supreme Court denied Chappell’s claim based on its reading
of a state rule, Arizona Rule of Evidence 704. Chappell, 236 P.3d at 1182-83, ¶¶ 17-18
(finding that Dr. Hu’s testimony did not violate Rule 704 because he did not state that
Chappell had murdered Devon in an especially cruel manner). The court, in effect,
interpreted Rule 704 and corresponding case law and tailored improper testimony on
ultimate issues to testimony that employs statutory language. This was a decision on state
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 98 of 140

~ 99 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
law, which this Court will not touch. Estelle, 502 U.S. at 67-68; Briceno, 555 F.3d at 1077.
Chappell’s third subclaim will be denied.
D. Use of Chappell’s Child-Abuse Conviction and Devon’s Helplessness
At the end of the trial’s guilt phase, the jury convicted Chappell of child abuse for
choking Devon in December 2003 and first-degree murder by forcibly drowning him three
months later. Chappell, 225 P.3d at 1180-81. At the aggravation phase, the court instructed
the jury that it could only find Chappell death-eligible if it found that the prosecution had
proved at least one aggravating circumstance under A.R.S. § 13-703(F) beyond a
reasonable doubt. Id. at 1181; see also A.R.S. § 13-703(B) and (E). The prosecution urged,
as aggravating circumstances, that Chappell “ha[d] been . . . convicted of a serious offense”
(child abuse), § 13-703(F)(2); he murdered Devon “in an especially . . . cruel . . . manner,”
§ 13-703(F)(6); and at the time of the murder, Chappell “was an adult” and Devon “was
under” 15 years old, § 13-703(F)(9). Id.
In her opening statement, the prosecutor stated that Chappell’s conviction of child
abuse for the December 2003 choking incident proved the (F)(2) circumstance. (R.T.
8/30/07 at 11–12.) The prosecutor stated that the fear Devon previously experienced during
the choking incident and Devon’s inability to breathe while held under water established
the (F)(6) circumstance. (Id. at 15.) The prosecutor also referred to Devon’s youth (e.g.,
his size, feelings, and age itself) at the time of his murder throughout her opening statement
as to the (F)(9) circumstance. (Id. at 13–14, 16–17.)
Following opening statements, Dr. Hu testified, prior to the trial court instructing
the jury that it could “not consider the age of the victim in any way in deciding whether the
murder was committed in a[n] especially cruel manner.” (Id. at 44.) In her closing and
rebuttal argument, the prosecutor argued that the (F)(6) circumstance existed because
Devon suffered mental anguish, in part, because of his youth and in part because Chappell
had previously choked him. (Id. at 50–51, 58, 60.)
The jury found that the prosecution had proven all three alleged aggravating
circumstances beyond a reasonable doubt. Chappell, 225 P.3d at 1181, ¶ 7. The court then
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 99 of 140

~ 100 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
turned to the trial’s penalty phase and instructed the jury that it could not “double count[]”
facts in weighing the aggravating circumstances against the mitigating circumstances:
The State may not rely upon a single fact or aspect of the offense to establish
more than one aggravating circumstance. Therefore, if you have found that
two or more of the aggravating circumstances were proved beyond a
reasonable doubt by a single aspect[] of the offense, such as the age of the
victim, you are to consider that fact or aspect of the offense only once. In
other words, you shall not consider twice any fact or aspect of the offense.
Id., ¶¶ 49–50 (alteration in original); see also A.R.S. § 13-703(E) (requiring the jury to
sentence one to death if it finds at least one aggravating circumstance under § 13-703(F)
“and then determines that there are no mitigating circumstances sufficiently substantial to
call for leniency”). The jury sentenced Chappell to death. Chappell, 225 P.3d at 1181, ¶ 7.
On direct appeal, Chappell claimed that the prosecutor erred in using Chappell’s
child abuse conviction and Devon’s age-based helplessness at the time of the murder as a
basis for the jury to find the (F)(6) circumstance. (O.B. at 100–07, 110–14.)
The Arizona Supreme Court denied the claim on the merits, finding that the
prosecutor had not engaged in misconduct. Chappell, 225 P.3d at 1183–84, ¶ 23 and n.5.
First, the court summarized the prosecutor’s arguments at trial:
The State argued that Devon experienced mental anguish from being unable
to breathe because he had previously experienced that same sensation during
the December choking incident. The State also argued that the prior choking
incident had made Devon afraid of Chappell and that two-year-old Devon,
inexplicably taken from his home in the middle of the night, likely
experienced fear and uncertainty from the time he was awoken until his
death.
Id. at 1184, ¶ 23 n.5. Next, the court rejected Chappell’s contention that the prosecutor’s
comments about the prior choking incident and Devon’s age “were improper and
inflammatory.” Id., ¶ 23. The court stated,
[a]lthough neither the victim’s age nor a defendant’s prior conviction is an
element of especial cruelty, both facts were relevant here to establish whether
Devon experienced mental anguish. Moreover, the jury was specifically
instructed the victim’s age was not to be “consider[ed] . . . in any way in
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 100 of 140

~ 101 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
deciding whether the murder was committed in an especially cruel manner.”
Id.
The court also rejected Chappell’s argument that the prosecutor erred in using the
choking incident because such use let the jury weigh the choking incident twice against the
mitigating circumstances. Id. at 1188, ¶¶ 47–50. In doing so, the court acknowledged that
“[a] prior conviction or other fact” may properly help establish two aggravating
circumstances “so long as that fact is not weighed ‘twice in balancing aggravating and
mitigating circumstances.’” Id., ¶ 48 (quoting State v. Velazquez, 166 P.3d 91, 98, ¶ 21
(Ariz. 2007)). The court then found that “[t]he prosecutor’s comments during the
aggravation phase did not improperly encourage jurors to base their [especially cruel]
finding on the prior choking incident.” Id., ¶ 49. Last, the court concluded that the trial
court had “properly instructed” the jury that it could not “consider twice any fact or aspect
of the offense.” Id., ¶¶ 49–50.
As to his fourth and fifth subclaims, Chappell contends that the prosecutor’s use of
the prior choking incident and Devon’s age-based helplessness were improper. (Doc. 25 at
143–46.) In his fourth subclaim, he argues that the prosecutor let the jury weigh twice,
“double count,” the prior choking incident against the mitigating circumstances. (Id. at
143–45) In his fifth subclaim, he argues that Devon’s age-based helplessness was irrelevant
to show especial cruelty and was used to inflame the jurors’ passions. (Id. at 145–46.) The
parties agree that the Arizona Supreme Court addressed these claims on the merits but
disagree whether Chappell raised these claims as federal issues. (Id.; Doc. 33 at 156–58,
162–63.) This Court need not resolve this issue, as the record and United States Supreme
Court precedent renders these subclaims without merit.
The fourth subclaim lacks merit because it is not cognizable, see Gerlaugh v.
Stewart, 129 F.3d 1027, 1044 (9th Cir. 1997) (rejecting a double-counting claim, in part,
because it “is a matter of state law and not cognizable in this forum”), and the United States
Supreme Court has not barred double counting, Jones v. United States, 527 U.S. 373, 398
(1999). Moreover, even if the Supreme Court had barred double-counting, Chappell was
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 101 of 140

~ 102 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
not prejudiced where the trial court specifically instructed the jury that it could not double-
count, Chappell, 236 P.3d at 1188, ¶ 50, and juries are presumed to follow instructions, see
Weeks v. Angelone, 528 U.S. 225, 234 (2000) (citing Richardson v. Marsh, 481 U.S. 200,
211 (1987). This Court will therefore deny Chappell’s fourth subclaim.
The fifth subclaim also lacks merit “[b]ecause the Supreme Court has not clearly
decided whether the admission of irrelevant or unduly prejudicial evidence” violates due
process “sufficient to warrant habeas relief,” Smith v. Allen, No. 2:16-cv-1015 TLN CKD
P, 2022 WL 3219433, at *25 (E.D. Cal. Aug. 8, 2022) (citing Holley v. Yarborough, 568
F.3d 1091, 1101 (9th Cir. 2009)), and Chappell does not otherwise cite a case where the
Arizona Supreme Court has found the victim’s youth irrelevant to prove especial cruelty.
Although he cites State v. Gretzler, 659 P.2d 1, 11 (Ariz. 1983), superseded by statute as
stated in State v. Carlson, 351 P.3d 1079, 1093, ¶ 46 (Ariz. 2015), for the proposition that
a victim’s age-based helplessness is relevant only to the (F)(6) circumstance in terms of
heinousness or depravity, Gretzler does not suggest that it is irrelevant to show mental
anguish in proving especial cruelty. The trial court’s instruction to the jury about Devon’s
age, however, prohibited such use. Gretzler does not. See Gerlaugh, 129 F.3d at 1044;
Estelle, 502 U.S. at 67-68; Briceno, 555 F.3d at 1077. Chappell’s fifth subclaim, and Claim
8 as a whole will be denied.
XV. Claim 9, 10, and 11
Chappell claims that the trial court violated his Eighth and Fourteenth Amendment
rights by instructing the jurors that if they spared his life, the court could sentence him to
life in prison with possible parole after 35 years served (Claim 9) (Doc. 25 at 147–50), by
denying his waiver of his right to that life sentence (Claim 10) (id. at 150–54), and by not
instructing the jurors that if they spared his life and the court gave him a parole-eligible
sentence, Chappell would still have to serve a consecutive sentence for Count 2 (Claim 11)
(id. at 155–57). Chappell exhausted these claims in state court. See Chappell, 236 P.3d at
1187, ¶¶ 42–44.
//
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 102 of 140

~ 103 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
A. Claim 9
The trial court instructed the jury that it could either sentence Chappell to death or
to life in prison and that if it chose life in prison, the court would sentence him to life in
prison either with possible “release” after 35 years served or without possible release. (R.T.
10/25/07 at 17.) The court did not reference “parole” (R.T. 10/25/07 at 17), as Chappell
was not eligible for parole, see A.R.S. § 41-1604.09(I)(1) (West 2008) (applying parole
eligibility for one who commits a felony before January 1, 1994).
The Arizona Supreme Court held that the trial court correctly stated A.R.S. § 13-
751(A) (West 2008) to the jury and thus the court did not err under Simmons v. South
Carolina, 512 U.S. 154 (1994).31 Chappell, 236 P.3d at 1187, ¶ 43. In Simmons, the United
States Supreme Court held that when “a defendant’s future dangerousness is at issue, and
state law” bars his “release on parole, due process requires that the sentencing jury be
informed that [he] is parole ineligible” (a “Simmons instruction”). 512 U.S. at 161–64; see
also Cruz v. Arizona, 598 U.S. 17, 21 (2023); Ramdass v. Angelone, 530 U.S. 156, 169
(2000) (plurality opinion) (confirming that Simmons applied only when state law prohibits
the defendant’s release on parole). Thus, Simmons expressly flows from the opportunity to
have a jury informed of the defendant’s parole ineligibility. Simmons, 512 U.S. at 161
(Blackmun, J., joined by Stevens, Suter, and Ginsburg, JJ.); id. at 175 (O’Connor, J., joined
by Rehnquist, C.J., and Kennedy, J., concurring in judgment). The instruction at issue itself
did not deprive Chappell of such an opportunity. Contrary to Chappell’s argument, the
court did not state, “parole.” At any rate, this Court will not question the Arizona Supreme
Court’s affirmance of the instruction based on the instruction’s adherence to state law, see
Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (recognizing that a state court’s reading of
state law “binds [this Court]”), and the Court did not unreasonably apply Simmons and its
progeny because Chappell was release eligible.
Claim 9 will be denied.
31 Arizona Revised Statute section 13-703(A) (West 2005)—section 13-751(A) (West
2008)’s equivalent predecessor—applied when the trial court instructed the jury.
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 103 of 140

~ 104 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
B. Claim 10
The trial court denied Chappell’s request to obtain a Simmons instruction by waiving
a life sentence with possible parole. (R.O.A. 98 and 131.) Chappell challenged the trial
court’s denial of the request. (O.B. at 85.) But he conceded in his reply brief that the
Arizona Supreme Court had denied such a challenge in State v. Dann, 207 P.3d 604, 625–
26 (Ariz. 2009). (R.B. at 131.) The Arizona Supreme Court acknowledged the concession,
citing Dann, 207 P.3d at 625–26, and denied Chappell’s claim. Chappell, 236 P.3d at 1187,
¶ 44 n.10.32 This state-law decision binds this Court. See Bradshaw, 546 U.S. at 76.
Claim 10 will be denied.
C. Claim 11
The trial court also denied Chappell’s request that it instruct the jury that if the jury
spared his life and the court sentenced him to life in prison with possible parole, he would
still have to serve a consecutive lengthy prison term for Count 2:
Denying defense motion for jury to be accurately informed that . . . Chappell
will not be eligible for parole in this case until he has served at least 52 years
or for alternative relief, as contrary to Arizona law. All that is required by
law is that the jury be told it must determine whether the defendant will be
sentenced to life in prison or death for his conviction of first degree murder;
that if their verdict is death the defendant will be sentenced to death; if their
verdict is life, the court will sentence defendant to either life without the
possibility of release (in this case) until 35 calendar years in prison are
served, or “natural life” meaning defendant will never be released from
prison. The instructions do that. In this case if the jury verdict is for life the
defendant actually will not be released after 35 calendar years are served on
Count I, because he must serve a 10 to 24 year consecutive and flat sentence
on his Count II conviction for child abuse, a dangerous crime against
children. The mitigated term is 10 years, presumptive 17 years and
aggravated 24 years and must be served after Count I. The jury thus is being
told what the consequences of their verdict will be with respect to Count I
only, and in that respect they are not being told an untruth.
The instructions that the jury is not to consider the possible punishment when
32 Contrary to Chappell’s claim, the Arizona Supreme Court denied his claim on his
proposed waiver instruction on the merits because the court did not suggest that it denied
his claim on a procedural ground.
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 104 of 140

~ 105 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
considering guilt/innocence, except as modified for the penalty phase,
applies throughout the trial. It is the only sensible rule as in the imaginary
future the Count II verdict could be set aside, and if the jury based a ruling
on life or death on defendant serving a minimum of 34 years before eligible
for release, that circumstance would have changed.
(R.O.A. 401; R.O.A. 412 at 2–3.)
The Arizona Supreme Court affirmed, explaining that Chappell had not proven “his
probable sentence” for Count 2 was “relevant to his ‘character or record [or] any of the
circumstances of the [murder],’” Chappell, 236 P.3d at 1187, ¶ 44 (quoting Lockett v. Ohio,
438 U.S. 586, 604 (1978)) (alterations by Chappell), and “was speculative and subject to
possible reversal under a variety of different scenarios,” id. Chappell claims that the
Arizona Supreme Court, in affirming, contradicted or unreasonably applied clearly
established federal law and unreasonably determined the facts. (Doc. 25 at 155–57.)
But the United States Supreme Court has not held that a sentence consecutive to a
sentence on a capital crime is relevant to a defendant’s character, his record, or any
circumstance of the capital crime. Further, in Bates, the Eleventh Circuit denied the writ of
habeas corpus based on a claim congruent to Chappell’s. 768 F.3d at 1306. In Bates, the
Florida Supreme Court also denied that claim based on “conjecture and speculation.” Id.
The Eleventh Circuit found that the court “‘had good reason not to extend Simmons beyond
the circumstances of that case, which included conclusive proof of parole ineligibility
under state law at the time of sentencing.’” Id. (quoting Ramdass, 530 U.S. at 170).
So too here, the Arizona Supreme Court denied Chappell’s claim because his
sentence for Count 2 was speculative. Chappell, 236 P.3d at 1187, ¶ 44. This reasoning
was not an unreasonable determination of the facts. For a state appellate court or the United
States Supreme Court could reverse the sentence, Chappell could receive executive
clemency, or the legislature could annul or modify the sentence. See Bates, 768 F.3d at
1306. Thus, the Arizona Supreme Court reasonably determined the facts in finding
Chappell’s sentence for Count 2 speculative. And for this reason, the Court did not
unreasonably apply Simmons.
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 105 of 140

~ 106 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Claim 11 will be denied.
XVI. Claim 12
Chappell claims the trial court violated his Eighth and Fourteenth Amendment rights
to due process, a fair trial, and a fair sentencing by barring him from offering execution-
impact evidence as mitigation at sentencing. (Doc. 25 at 157–59.) The parties agree this
claim is exhausted. (Id. at 157–78; Doc. 33 at 182.)
It is well settled that a capital defendant is entitled to submit any relevant mitigating
evidence in support of a sentence less than death. Payne v. Tennessee, 501 U.S. 808, 822,
(1991). The Eighth and Fourteenth Amendments require that a sentencer “‘not be precluded
from considering, as a mitigating factor, any aspect of a defendant’s character or record
and any of the circumstances of the offense that the defendant proffers as a basis for a
sentence less than death.’” Eddings v. Oklahoma, 455 U.S. 104, 110 (1982) (quoting
Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion)) (emphasis by Lockett). But
courts may “exclude, as irrelevant, evidence not bearing on the defendant’s character, prior
record, or the circumstances of his offense.” Lockett, 438 U.S. at 604 n.12.
“Relevant mitigating evidence . . . tends logically to prove or disprove some fact or
circumstance which a fact-finder could reasonably deem to have mitigating value.” McKoy
v. North Carolina, 494 U.S. 433, 440 (1990) (internal quotations omitted). This relevance
standard is “low.” Tennard v. Dretke, 542 U.S. 274, 284–85 (2004) (citing McKoy, 494
U.S. at 440). If this standard is met, “‘the Eighth Amendment requires that the jury be able
to consider and give effect to’” to the capital defendant’s mitigating evidence. Id. at 285
(quoting Boyde v. California, 494 U.S. 370, 377–78 (1990)).
Before trial, Chappell’s counsel informed the court and the prosecution that if
Chappell was convicted of the murder, they intended to offer evidence that Chappell’s
execution would adversely impact Chappell’s family and friends. (ROA 64 at 2, citing
Ariz. Rev. Stat. § 13-703(G) (West 2007)33). In response, the prosecution moved to bar
33 Section 13-703(G) (West 2007) required a capital jury to “consider as [a] mitigating
circumstance[] . . . any aspect of the defendant’s character, propensities or record and any
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 106 of 140

~ 107 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
such evidence as irrelevant to Chappell’s character, record, and the offense’s
circumstances. (R.O.A. at 8.) The prosecution argued that while Chappell’s witnesses
could tell the jury how Chappell had impacted their lives, they should not be allowed to
testify about the impact his execution would have on them. (R.T. 8/11/06 at 19–20.)
Chappell’s counsel responded that the court should allow such evidence as “indirect
character evidence” since the impact of Chappell’s execution would stem from his
“character and the role” in their lives. (Id. at 20–21.)
The trial court granted the prosecution’s motion and barred “evidence of any
suffering of” or “sentencing recommendation from” Chappell’s witnesses. (R.O.A. 127 at
2.) The court ruled Chappell could “introduce[e evidence of] the existence of family ties.”
(Id.) Chappell’s counsel then filed an offer of proof, claiming Chappell had a Fifth and
Eighth Amendment right to present execution-impact evidence, disclosing statements from
Chappell’s family, teachers, and coach about the adverse mental, physical, social, and
financial impacts his execution would have on them. (R.O.A. 169, 193.)
On direct appeal, the Arizona Supreme Court denied relief on this claim, finding
that the trial court had not abused its discretion in granting the motion. Chappell, 236 P.3d
at 1184, ¶ 30. It stated, “In capital cases, ‘the Eighth and Fourteenth Amendments require
that the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect
of a defendant’s character or record and any of the circumstances of the offense that the
defendant proffers as a basis for a sentence less than death.’” Id., ¶ 29 (quoting Lockett,
438 U.S. at 604) (cleaned up). But the court noted a trial court could “‘exclude, as
irrelevant, evidence not bearing on the defendant’s character, prior record, or the
circumstances of his offense.’” Id. (quoting Lockett, 438 U.S. at 604 n.12). Further, the
court cited its prior holding, finding certain execution-impact evidence irrelevant “to
mitigation.” Id., ¶ 30 (citing State v. Roque, 141 P.3d 368, 397 (Ariz. 2006), exclusion of
“sister’s testimony expressing concern for the defendant’s family’s well-being is
of the circumstances of the offense.” Ariz. Rev. Stat. § 13-703(G). In 2008, this provision
was transferred and renumbered as § 13-751(G).
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 107 of 140

~ 108 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
‘altogether unrelated to defendant, his character, or to the circumstances of the offense’
and is therefore not relevant mitigating evidence,” quoting State v. Williams, 904 P.2d 437,
454 (Ariz. 1995), and citing cases). Chappell argues that the Arizona Supreme Court’s
decision was contrary to clearly established federal law, as determined by the United States
Supreme Court. (Doc. 25 at 157-59.)
As described above, the relevant federal law provided that a state court may properly
bar evidence proffered as mitigation that is not relevant to the defendant’s character, prior
record, or the circumstances of the offense. Chappell’s offer of proof did not support that
any of his proffered execution-impact evidence was relevant to his own character, prior
record, or the offense’s circumstances. Instead, the offer of proof only described how his
execution would affect others. The United States Supreme Court has not held that the
sentencer must consider such evidence that is irrelevant to a defendant’s character, prior
record, or offense’s circumstances. Chappell cites no authority to the contrary. And the
Court has found none. Stenson v. Lambert, 504 F.3d 873, 892 (9th Cir. 2007) (neither
Lockett nor any other federal case “require[ed] the admission” of such evidence); see also
United States v. Hager, 721 F.3d 167, 193–97 (4th Cir. 2013) (no federal cases require the
of execution-impact testimony that “goes beyond testimony about the defendant’s
character, prior record, or the circumstances of the crime”) (citing Stenson, 504 F.3d at
892).34
In short, Chappell has not shown that the trial court’s preclusion of execution-impact
evidence in his case was contrary to, or involved an unreasonable application of, clearly
established federal law. Claim 12 will be denied.
34 Chappell states that in Sears v. Upton, 561 U.S. 945, 947–50 (2010), the United States
Supreme Court deemed execution-impact evidence relevant mitigating evidence. (Doc. 25
at 158.) The Supreme Court did not do so. See Sears, 561 U.S. at 947–50. Rather, in
describing the “inadequate mitigation investigation” of Sears’s counsel, it noted that the
state court had admitted execution-impact evidence. Id. at 947–51. The Supreme Court did
not discuss whether the evidence was relevant mitigation evidence; it did not apply Lockett
or mention Stenson or Hager. See id. at 947–50. Thus, Sears does not support Chappell’s
claim.
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 108 of 140

~ 109 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
XVII. Claims 13 and 14
Chappell claims that the trial court denied him his Eighth and Fourteenth
Amendment rights to due process and a fair sentencing by limiting his allocution at
sentencing (Claim 13)35 and denying the jury’s request for a transcript of his allocution
(Claim 14). (Doc. 25 at 160–65.) Chappell exhausted these claims. See Chappell, 236 P.3d
at 1185, 1188–89, ¶¶ 31–33, 51–55.
A. Claim 13
The trial court allowed Chappell to plea for mercy and state mitigating details about
himself to the jury but would subject him to cross-examination if he addressed any issue
of fact from trial. (R.T. 10/24/07 at 14–16.) The Arizona Supreme Court held that the trial
court did not (1) abuse its discretion in doing so, as Chappell’s right to allocute did not
extend to statements on the alleged mitigators, or (2) deny Chappell due process, as he, in
fact, allocuted. Chappell, 236 P.3d at 1185, ¶¶ 31–33. Chappell contests these holdings
under § 2254(d)(1) and (2). (Doc. 25 at 160–62.)
Fourteenth Amendment due process entitles defendants to a fair sentencing. Green
v. Georgia, 442 U.S. 95, 97 (1979). And the Eighth and Fourteenth Amendments require
that the sentencer must not ignore any relevant mitigator. Tennard v. Dretke, 542 U.S. 274,
284–85 (2004) (citing Boyde v. California, 494 U.S. 370, 377–78 (1990)); Eddings, 455
U.S. at 110 (citing Lockett, 438 U.S. at 604 and n.12).
But the United States Supreme Court “has not recognized a constitutional right to
allocution.” Troy v. Sec’y, Fla. Dep’t of Corr., 763 F.3d 1305 (11th Cir. 2014). For
instance, in Hill v. United States, the Supreme Court left open, whether a defendant has
that right. 368 U.S. 424, 428 (1962). And in McGautha v. United States, the Supreme Court
noted that it has “not directly determined whether or not to what extent the concept of due
process of law requires that a criminal defendant wishing to present evidence or argument
presumably relevant to the issues involved in sentencing should be permitted to do so.”
35 To the extent Chappell argues that the court should not have barred him from allocating
on execution-impact evidence, his argument lacks merit. (See Section XVI, supra.)
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 109 of 140

~ 110 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
402 U.S. 183, 218 n.22 (1971), judgment vacated on other grounds by Crampton v. Ohio,
408 U.S. 941 (1972). Other district courts, including the District of Arizona, have
continued to confirm that the United States Supreme Court has not recognized a
constitutional right to allocution. See, e.g., Garza v. Shinn, No. CV-14-01901-PHX-SRB,
2021 WL 5850883, at *28–29 (D. Ariz. Dec. 9, 2021); Rikard v. Harrington, No. 2:07-
CV-01867-JKS, 2009 WL 3367442, at *3 (E.D. Cal. Oct. 19, 2009); Troy v. Sec’ y of Dep’
t of Corr., No. 8:11-CV-796-T30-AEP, 2013 WL 24212, at *25 (M.D. Fla. Jan. 2, 2013).
Chappell, however, notes that the Ninth Circuit recognized a due process right to
allocution in Boardman v. Estelle, 957 F.2d 1523, 1529-30 (9th Cir. 1992) (Doc. 25 at
161); see also United States v. Chong, 104 F.Supp.2d 1232 (D. Haw. 1999) (applying
Boardman in holding that a defendant has a right to allocute before a sentencing jury in a
capital sentencing hearing). Chappell cannot prevail under Boardman. First, Boardman,
concerned the outright denial of a request, by a defendant represented by counsel, to
allocute. Boardman, 957 F.2d at 1530. Whereas, in Chappell’s case, the trial court did not
bar Chappell from allocating; it only warned that it would subject him to cross-examination
if he addressed any issue of fact from trial. (R.T. 10/24/07 at 14–16.) And thus Boardman
is distinguishable here. Second, the Ninth Circuit issued Boardman before AEDPA, and
under AEDPA, “clearly established federal law” are the holdings of the United States
Supreme Court—not circuit courts of appeals. Williams, 529 U.S. at 412; Rodgers, 569
U.S. at 64.
Third, the circuits are split on whether a defendant’s allocution is a constitutional
right. Compare Boardman, 957 F.2d 1523; United States v. Jackson, 923 F.2d 1494 (11th
Cir. 1991) (same); United States v. Moree, 928 F.2d 654, 656 (5th Cir. 1991); with, e.g.,
United States v. Lighty, 616 F.3d 321, 365 (4th Cir. 2010) (noting its “precedent holding
that a defendant does not have a constitutional right to allocution before the jury in a capital
sentencing hearing”); United States v. Li, 115 F.3d 125, 132-33 (2d Cir. 1997)
(acknowledging that the Constitution does not entitle defendants to allocution); Scrivener
v. Tansy, 68 F.3d 1234, 1240 (10th Cir. 1995) (“A trial court’s failure to afford a defendant
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 110 of 140

~ 111 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the right of allocution raises neither a jurisdictional nor a constitutional error cognizable in
habeas.”); United States v. Coffey, 871 F.2d 39, 40 (6th Cir. 1989) (stating that there is no
constitutional right to allocute); United States v. Fleming, 849 F.2d 568, 569 (11th Cir.
1988) (citations omitted) (“[T]he right to allocution is not constitutional.”).
Last, courts are split on what defendants may state on their own behalf before
sentencing. In some capital cases, courts bar defendants from making unsworn statements
to the jury, United States v. Hall, 152 F.3d 381, 396 (5th Cir. 1998) (“conclud[ing] that a
criminal defendant in a capital case does not possess a constitutional right to make an
unsworn statement of remorse before the jury that is not subject to cross-examination”), or
to make a statement to the jury without cross-examination, Commonwealth v. Abu-Jamal,
555 A.2d 846, 857-58 (Pa. 1989). The practice of subjecting defendants who allocute to
cross-examination, in fact, varies by jurisdiction. See Kimberly A. Thomas, Beyond
Mitigation: Towards a Theory of Allocution, 75 Fordham L. Rev. 2641, 2648 n.51 (Apr.
2007) (contrasting state statutes). In short, there is no clearly established federal law that
guarantees Chappell an unabridged right to allocute.
Chappell, moreover, cannot prevail under Brecht, 507 U.S. at 637. In his allocution,
Chappell apologized to Devon’s family, thanked his own family for their support,
described his efforts to improve himself, and asked the jury to spare his life. (R.T. 10/25/07
at 4-5.) At no point—in state court or in this Court—has he offered what he would have
added had the trial court not warned him about addressing issues of fact from trial. As a
result, he has not shown how that warning actually prejudiced him.
For the reasons discussed, Claim 13 will be denied.
B. Claim 14
During penalty phase deliberations, the jury asked for a transcript of Chappell’s
allocution. (R.T. 10/31/07 at 3.) The trial court denied the request and told the jurors to rely
on their memory of Chappell’s statements. (Id. at 5–6.)
The Arizona Supreme Court held that by doing so, the trial court did not deny
Chappell his “constitutional rights,” as the “jurors heard his allocution, and the mere fact
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 111 of 140

~ 112 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
that they were not given a written transcript during deliberations neither impeded their
ability to consider it nor violated Chappell’s constitutional rights.” Chappell, 236 P.3d at
1189, ¶ 55. Chappell argues that in so holding, the Court contradicted or unreasonably
applied clearly established federal law and unreasonably determined the facts. (Doc. 25 at
163-65.)
The United States Supreme Court has not clearly held that a capital defendant has a
constitutional right to have his allocution read back to the jury. See, e.g., Sualez v. Jaime,
No. 5:18-cv-00725 DSF (ADS), 2020 WL 3491857, at *4 (C.D. Cal. May 12, 2020);
Gonzalez v. Allison, No. CV 12-7811 CJC(JC), 2015 WL 5819111, at *18 (C.D. Cal. July
27, 2015) (“[P]etitioner has not identified any Supreme Court decision which clearly
establishes that the federal constitution is violated whenever a trial court fails to read back
trial testimony requested by a jury.”); see also Morse v. State, 120 A.3d 1, 15 (Del. 2015)
(holding that trial court’s denial of the jury’s request for a transcript of witness testimony
did not “deprive[ defendant] of a substantial right, or . . . cause[] manifest injustice”).
Further, as the district court in Sualez noted, the Ninth Circuit has held that “a trial
court has wide latitude in deciding whether to have testimony requested by the jury read
back.” 2020 WL 3491857, at *4; Riley v. Deeds, 56 F.3d 1117, 1120 (9th Cir. 1995); see
also United States v. Medina Casteneda, 511 F.3d 1246, 1249 (9th Cir. 2008) (citing United
States v. Nolan, 700 F.2d 479, 486) (“In light of the district court’s great latitude to address
requests for readbacks and its recognition of the problems associated with readbacks, we
hold that the judge’s decision to deny the requested readback was not an abuse of
discretion.”).
Further, Chappell has not met the Brecht test because, after the trial court denied the
jury’s request for a transcript and told it to rely on its memory, the jury neither informed
the trial court that it could not recall his allocution nor renewed its request. Cf. Holt v. State,
535 S.E.2d 514, 517–18 (Ga. Ct. App. 2000) (holding that appellant’s “allegation that the
trial court erred by refusing to read testimony to the jury” lacked merit “because the jury
made no such request” and “[i]nstead . . . asked for a copy of the transcript, which, of
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 112 of 140

~ 113 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
course, was not available,” and “[w]hen the trial court explained this to the jury, it made
no further requests for testimony”). In sum, the record shows that the jury could rely on
memory to consider Chappell’s allocution.
Claim 14 will be denied.
XVIII. Claim 15
Chappell claims that by denying his request to instruct the jury to consider the total
mitigating evidence as a standalone mitigating circumstance with each individual
mitigating circumstance, the trial court violated his Eighth and Fourteenth Amendment
rights to have the jury fully consider the mitigating evidence and sufficiently instructed on
its sentencing discretion and powers. (Doc. 25 at 165–67.)
The parties agree that Chappell fully exhausted this claim by raising it on direct
appeal (O.B. at 131–33; Docs. 25 at 165; Doc. 33 at 195–96), which the Arizona Supreme
Court denied on the merits, Chappell, 236 P.3d at 1188, ¶¶ 45–46. The Court explained
that the trial court had met the requested instruction’s goal by telling the jurors to consider
the mitigating evidence as a whole. Id., ¶ 46. This is the last reasoned state-court decision,
which Chappell claims contradicts and unreasonably applies clearly established federal law
and unreasonably determines the facts in light of the evidence presented. (Doc. 25 at 165–
67.)
In reviewing jury instructions on mitigating evidence, this Court will determine
“whether there is a reasonable likelihood that the jury . . . applied the challenged
instruction[s] in a way that prevent[ed] the consideration of the constitutionally relevant
evidence.” Boyde v. California, 494 U.S. 370, 380 (1990); see also Buchanan v. Angelone,
522 U.S. 269, (1998) (reasoning that the “consistent concern has been that restrictions on
the jury’s sentencing determination not preclude the jury from being able to give effect to
mitigating evidence”). Chappell need not “prove that it was more likely than not that the
jury was prevented from giving effect to the evidence.” Johnson v. Texas, 509 U.S. 350,
367 (1993). He must show “more than a mere possibility of such a bar.” Id. at 367–68
(citing Boyde, 494 U.S. at 380).
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 113 of 140

~ 114 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
The Eighth and Fourteenth Amendments assure that the jury “not be precluded from
considering, as a mitigat[or], any aspect of a defendant’s character or record and any of
the circumstances of the offense that the defendant proffers as a basis for a sentence less
than death.” Locket, 438 U.S. at 604 (emphasis in original); Eddings, 455 U.S. at 110;
Johnson, 509 U.S. at 361. As the Supreme Court clarified in Johnson, “Lockett and its
prodigy” require only that states not bar “the presentation of mitigating evidence”
altogether or “limit[] the inquiries to which it is relevant so severely that the evidence could
never be part of the sentencing decision at all.” 509 U.S. at 361-62 (internal quotations
omitted). And, as the Ninth Circuit explained in Smith v. McCormick, “the Supreme Court
has . . . held that Lockett and Eddings speak mainly to ‘what’ mitigating evidence a
sentencer must consider rather than ‘how’ that evidence must be considered.” 914 F.2d
1153, 1169 (9th Cir. 1990) (quoting Saffle v. Parks, 494 U.S. 484 (1990)). That said, the
Ninth Circuit also found it was “clear from Pennsylvania [ex rel. Sullivan v. Ashe, 302
U.S. 51 (1937)], Woodson[ v. North Carolina, 428 U.S. 280 (1976)], and their progeny,
that a sentencer” must “weigh all of the mitigating circumstances ‘together.’” Id. (emphasis
added).
But the United States Supreme Court has never held that courts must instruct juries
to consider those circumstances together as a standalone mitigating circumstance with each
individual mitigating circumstance. In Buchanan, the Supreme Court held that the Court
had never adopted a rule that required “a capital jury be instructed on the concept of
mitigating evidence generally, or on particular statutory mitigating factors.” 522 U.S. at
270, 275. The Court stressed “the need[—in a trial’s penalty phase—]for a broad inquiry
into all relevant mitigating evidence to allow an individualized determination.” Id. at 275–
76 (citing cases). The Court clarified that states could “shape and structure the jury’s
consideration of mitigation” as long as the states did “not preclude the jury from giving
effect to any relevant mitigating evidence.” Id. at 276 (citing Johnson, 509 U.S. at 362;
Penry v. Lynaugh, 492 U.S. 302, 326 (1989), abrogated on other grounds by Atkins v.
Virginia, 536 U.S. 304 (2002); Franklin, 487 U.S. at 181).
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 114 of 140

~ 115 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
In fact, the Court stated that it had “never gone further and held that the state must
affirmatively structure in a particular way the manner in which juries consider mitigating
evidence,” noting that its decisions have held “complete jury discretion” constitutional. Id.
at 276-77 (citing cases). No clearly established federal law, in short, requires juries to
consider all of the mitigating evidence as a standalone mitigating circumstance with each
individual mitigating circumstance.
The trial court satisfied the Eighth and Fourteenth Amendments by instructing the
jury to consider all the mitigating evidence and to determine whether “the total of the
mitigation is sufficiently substantial to call for leniency.” (R.T. 9/25/07 at 14–16, 18–20;
R.O.A. 516 at 9–10, 12–13.) Moreover, the court defined mitigating circumstances as any
circumstances “relevant in determining whether to impose a life sentence, including any
aspect of the defendant’s character, background, propensities, that is tendencies or
inclinations, or record and any of the circumstances of the offense.” (RT 9/25/07 at 14–
15.) This satisfies the Eighth and Fourteenth Amendments. See Buchanan, 522 U.S. at 277
(holding that “[t]he jury instruction . . . did not violate these constitutional principles”
because it did not bar “the jury’s consideration of any mitigating evidence”); see also
Tuilaepa v. California, 512 U.S. 967, 976 (1994) (feeling “hard pressed to invalidate a jury
instruction that implements what [the United States Supreme Court has] said the law
requires”); Johnson, 509 U.S. at 368 (quoting Graham v. Collins, 506 U.S. 461, 475–76
(1993)) (“As long as the mitigating evidence is within ‘the effective reach of the sentencer,’
the requirements of the Eighth Amendment are satisfied.”); cf. State v. Reynolds, 836 A.2d
224, 322 n.123 (Conn. 2003) (noting that the state supreme court’s requirement that courts
should give jurors a correct written list of each alleged mitigating circumstance, including
the cumulative effect of the circumstances, was under “sound policy consideration”—not
“constitutional principles”). In sum, “the jury had a meaningful basis to consider” the
mitigating evidence as a whole. See Johnson, 509 U.S. at 369.
Further, even if the clarity of the instruction alone was in doubt, the context in which
the trial court instructed the jury “informed the jury that it could consider” the mitigating
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 115 of 140

~ 116 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
circumstances as a whole. See Buchanan, 522 U.S. at 278 (1998) (finding that, in context,
the jury was expressly informed “that it could consider mitigating evidence”). In assessing
the instructions, this Court does not parse the language of the instructions, “but instead
approach[es] the instructions in the same way that the jury would—with a ‘commonsense
understanding of the instructions in the light of all that has taken place at the trial.’”
Johnson, 509 U.S. at 368 (quoting Boyde, 494 U.S. at 381). Chappell does not allege that
any part of counsel’s opening or closing remarks could have confused the jury about
whether it could consider the mitigating evidence as a whole. And the record otherwise
does not support such an allegation. The Court therefore presumes that the jury followed
the instructions. See McKensie v. Risley, 842 F.2d 1525, 1533 (9th Cir. 1988); cf.
Richardson v. Marsh, 481 U.S. 200, 206 (1987) (noting the “almost invariable assumption
of the law that jurors follow their instructions”).36
For these reasons, the Arizona Supreme Court’s decision was neither contrary to,
nor an unreasonable application of clearly established federal law. Nor did the decision
involve an unreasonable determination of the facts in light of the evidence presented.
Claim 15 will be denied.
XIX. Claim 25
In Claim 25, Chappell argues that the admission of victim-impact evidence (VIE) at
the penalty phase violated his Fifth, Sixth, Eighth, and Fourteenth Amendment “rights to
due process and a fair and reliable sentencing.”37 (Doc. 25 at 186–90.) He argues that VIE
is per se inadmissible and that Devon’s grandfather’s VIE, as well as the VIE, as a whole,
36 By extension, the record shows that the alleged error did not have a substantial or
injurious effect or influence on the verdict. See Brecht, 507 U.S. at 637; cf. State v.
Reynolds, 836 A.2d 224, 322 (Conn. 2003) (“In light of the court’s instruction [that the
jury should consider the mitigating circumstances as a whole], there is no reasonable
possibility that the defendant was prejudiced by the court’s failure to include the
cumulative effect of the mitigating evidence as an independent mitigating factor in the
defendant’s written list of mitigating factors.”).
37 Chappell has withdrawn his Sixth Amendment, Confrontation Clause claim. (Doc. 25 at
189–90; Doc. 87 at 133 n.17).
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 116 of 140

~ 117 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
“was so emotionally stirring” that it was “unduly prejudicial” and “rendered the sentencing
fundamentally unfair.” (Id. at 187–89; Doc. 87 at 132–33.)
In Booth v. Maryland, the United States Supreme Court held that the introduction
of a victim impact statement during the sentencing phase of a capital case violated the
Eighth Amendment. 482 U.S. 496, 509 (1987). But, in Payne v. Tennessee, the Supreme
Court revisited Booth and overruled it in part, holding that the Eighth Amendment does not
erect a per se barrier to admission of VIE but left intact Booth’s prohibition on the
admissibility of opinions from the victim’s family about the crime, the defendant, or the
appropriate sentence. 501 U.S. 808, 827 n. 2 (1991); see Bosse v. Oklahoma, 137 S. Ct. 1,
1 (2016) (per curiam) (Payne did not reverse Booth regarding the non-admissibility of
family members’ characterizations and opinions about the crime, the defendant, and the
appropriate sentence).
On direct appeal, Chappell raised the following claim:
[VIE] admitted at the penalty phase of the trial violated [Chappell]’s
constitutional rights under the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution and Article 2, §§ 1, 4, 13, 15,
23, 24 of the Arizona Constitution. Lynn v. Reinstein, [68 P.3d 412, 417
(Ariz. 2003)].
(O.B. at 142.)38 The Arizona Supreme Court quoted the claim in the appendix to its order
denying relief on direct appeal without discussion. Chappell, 236 P.3d at 1190, App. The
parties disagree about whether Chappell fairly presented his federal claim to the state
courts. As discussed herein, the Court construes the denial of claims quoted in the appendix
to the Arizona Supreme Court’s denial of relief on direct appeal as a denial of those claims
on the merits.
38 In Lynn, the Arizona Supreme Court noted that Payne removed the per se bar on VIE
concerning how a crime had affected others. 68 P.3d at 417, ¶¶ 13-17. But the Arizona
Supreme Court did not hold that VIE concerning the day of the crime or VIE, as a whole,
rendered a sentencing fundamentally unfair. See id. Rather, it affirmed the trial court’s
prohibition of a victim recommending a sentence to the jury. Id., ¶ 17.
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 117 of 140

~ 118 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Chappell argues that the Arizona Supreme Court’s summary denial of the claim was
contrary to, or involved an unreasonable application of, clearly established federal law, and
was an unreasonable determination of the facts. (Doc. 25 at 188; Doc. 87 at 130.) Chappell
argues that Payne was wrongly decided to the extent that it held that the admission of VIE
did not violate the Eighth Amendment per se, but he cites no intervening United States
Supreme Court authority reversing or modifying Payne’s holding.
A. Additional Background
Before the start of the penalty phase, Chappell’s counsel reviewed four written
statements of the victim’s maternal grandfather, step-grandmother, mother, and great aunt
who intended to read their statements during the penalty phase. (R.T. 9/25/07 at 45.)
Counsel objected to the statements, as a whole, as “overly [and] . . . unfairly prejudicial.
(Id. at 52–53.) The court overruled the objection. Id.
At the start of the penalty phase, the trial court informed the jurors that four of the
victim’s family members would address them about Devon’s “personal characteristics” and
how his murder had impacted them but could not opine on or recommend a sentence. (R.T.
9/25/07 at 14–15.) The court instructed the jurors not to consider VIE as an aggravating
circumstance or “form final opinions” of the case facts or Chappell’s sentence until they
“heard and considered” all the evidence, closing arguments, and instructions. (Id. at 15,
20.)
Devon’s family members thereafter read their respective statements to the jury.
Devon’s maternal step-grandmother read her statement first. (Id. at 64.) In it, she recalled
memories of Devon. She also described how his death had affected her as a mother of
young children, as Devon’s step-grandmother, and Kristal’s stepmother, as well as the
effect of Devon’s death on Kristal herself. (Id. at 64–67.) The next day, Devon’s great aunt
read her statement telling the jury that Devon and his mother, Kristal, had lived with her,
her husband, and their children for a time. (R.T. 9/26/07 at 27–28.) She recalled her
memories of that time, shared a photo of her daughter, Devon, and Kristal covered in finger
paint, and described how Devon’s death had affected her and her family. (Id. at 27–37.)
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 118 of 140

~ 119 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
In his statement, Devon’s maternal grandfather recalled his memories of Devon, (id.
at 37–40) and described learning that Devon was missing, that he had been found, and that
he had died:
I remember getting the phone calls of finding out that Devon was missing
and that they couldn’t find him. I went to be with Kristal and to help her look
for her son and when I got there, the officer had already found him in the
pool. They kept saying that they were trying to revive him and that they
would let us know. I remember the feeling that maybe he was gone but I
didn’t want to believe it. You never think that something like this is going to
happen to your family. It was only something you hear on TV.
I remember going to the hospital and waiting there for what seemed like
forever. We were waiting for someone to come out and say he’s okay but it
didn’t turn out like that. The reality hit hard when they took us into a cold
looking room and closed the door and told us that they did everything they
could do but they couldn’t save him.
(Id. at 38.) He described how Devon’s death had affected him as Kristal’s father, as the
father of young children, and as Devon’s grandfather. (Id. at 38–41.) Devon’s mother,
Kristal, spoke last, sharing memories, and a few photographs, of Devon, and describing
Devon’s character and how his life, and death, continued to constantly affect her. (Id. at
41–52.)
After making an opening statement, Chappell’s counsel presented Chappell’s case
in mitigation and called more than 45 witnesses, including familial and mental-health
witnesses. (See R.T. 9/25/07, 9/27/07, 10/01/07, 10/02/07, 10/03/07, 10/04/07, 10/09/07,
10/10/07, 10/11/07, 10/15/07, 10/16/07, 10/17/07, 10/18/07.) Following the close of
evidence and issuance of jury instructions, the jury sentenced Chappell to death.
B. Analysis
The Arizona Supreme Court’s denial of relief on direct appeal was neither contrary
to, nor an unreasonable application of, clearly established federal law, or an unreasonable
determination of the facts in light of the evidence. (Doc. 25 at 188; Doc. 87 at 130.)
Devon’s family members did not opine about the crime. At most, Chappell’s grandfather
described the effect of unfolding events upon him. And none of Devon’s family members
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 119 of 140

~ 120 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
opined about Chappell or about an appropriate sentence for Chappell. The United States
Supreme Court acknowledged that the quantity and character of VIE could, taken together,
violate a defendant’s due process rights. See Payne, 501 U.S. at 825; Higgs v. United States,
711 F.Supp.2d 479, 527 (D. Md. 2010) (citing Payne, 501 U.S. at 825) (recognizing this
mechanism for relief). But the totality of the VIE in Chappell’s case did not violate his due
process rights or unduly prejudice him at sentencing. Claim 25 will be denied.
Chappell did not specifically challenge Devon’s grandfather’s VIE or the specific
VIE as a whole on direct appeal. As a result, the Court finds both challenges technically
exhausted but procedurally defaulted. Contrary to Chappell’s assertion, his appellate
counsel did not render ineffective assistance by failing to present the unexhausted portions
of his federal claim on direct appeal, because clearly established federal law did not support
relief on such portions. Further, appellate counsel could have reasonably believed that the
statements at issue did not characterize or opine on the crime. Compare with McGill v.
Ryan, No. CV-12-01149-PHX-JJT, 2019 WL 160732, at *24 (D. Ariz. Jan. 10, 2019)
(finding VIE of family member that she “could not believe how [murder victim] looked
after the fire and recalled that he was bandaged from head to toe” and “described her
reaction to the gruesome autopsy photos of her brother, telling the jurors that she ‘couldn’t
believe that a human person could do that to another person’” “were arguably comments
about McGill and the crime”).
To the extent the grandfather may have characterized or opined on the crime, his
statement did not have a “substantial and injurious effect or influence in determining”
Chappell’s sentence. Brecht, 507 U.S. at 637; see Floyd v. Filson, 949 F.3d 1128, 1149
(9th Cir. 2020) (applying harmless-error review to admission of mother’s victim-impact
statement); Hooper v. Mullin, 314 F.3d 1162, 1174 (10th Cir. 2002) (applying harmless-
error review to admission of improper victim-impact statement).
The grandfather briefly spoke about the time he learned Devon was missing and
quickly shifted to how that impacted him. (R.T. 09/26/07 at 38.) See United States v.
Mitchell, 502 F.3d 931, 990 (9th Cir. 2007) (finding family member’s statement an
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 120 of 140

~ 121 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
“inadmissible opinion about Mitchell’s crime” that was not prejudicial because the
statement “was brief, isolated, and could not have had more than a marginal impact on the
jury”). Besides, the jury already knew that Devon was missing, that the police found him
in a pool, and that Devon drowned. Chappell, moreover, does not protest any other
particular statement of the grandfather. See McGill, 2019 WL 160732, at *24 (finding that
victim’s statement on “her brother’s condition after the burning,” in context, did not have
a substantial and injurious effect or influence on sentencing, as the jury knew the crime’s
nature and had viewed photos of the body, the surviving victim did not recommend a
sentence “or otherwise attack McGill,” and “[t]he bulk of her statement” was permissible).
Further, only four members of Devon’s family spoke, their statements were
relatively brief (R.T. 9/25/07 at 64–67; R.T. 9/26/07 at 27–52), and Chappell made his case
in mitigation—having more than 45 witnesses testify (see R.T. 9/25/07, 9/27/07, 10/01/07,
10/02/07, 10/03/07, 10/04/07, 10/09/07, 10/10/07, 10/11/07, 10/15/07, 10/16/07, 10/17/07,
10/18/07). See Garza v. Shinn, No. CV-14-01901-PHX-SRB, 2021 WL 5850883, at *31
(D. Ariz. Dec. 9, 2021) (finding no substantial and injurious effect or influence on the jury,
as only two victims gave statements, the statements “were relatively brief,” and
“[i]mmediately after the statements, Garza” offered his case in mitigation, which included
27 witnesses). Further, the trial court instructed the jury not to “form final opinions” on the
facts of the case or sentence until it “heard and considered” all the evidence, closing
arguments, and instructions (R.T. 9/25/07 at 20)—which the jurors are presumed to have
followed, Greer v. Miller, 483 U.S. 756, 766 n.8 (1987).
Thus, even if the grandfather’s statements at issue should not have been admitted,
the error was harmless. See Lockett v. Trammell, 711 F.3d 1218, 1239–40 (10th Cir. 2013)
(finding error harmless where jury was correctly instructed that its sentencing decision was
“limited to a moral inquiry into the culpability of the defendant, not an emotional response
to the evidence”); Welch v. Workman, 630 F.3d 980, 997, 999 (10th Cir. 2011) (admission
of unconstitutional victim-impact statements vividly and emotionally describing the crimes
was harmless error where jury was properly instructed); United States v. Bernard, 299 F.3d
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 121 of 140

~ 122 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
467, 481 (5th Cir. 2002) (“[A]ny prejudice that did result from the statements was mitigated
by the district court’s instructions to the jurors not to be swayed by passion, prejudice or
sympathy.”).
By extension, Chappell’s appellate counsel did not ineffectively assist Chappell by
not contesting the admission of the statements at issue on direct appeal. And thus this
argument is procedurally defaulted and barred.
Nor did counsel ineffectively assist Chappell by not contesting the VIE as a whole
on direct appeal. In Payne, the Supreme Court reassured that if the VIE presented “is so
unduly prejudicial that it renders the trial fundamentally unfair, the Fourteenth
Amendment’s Due Process Clause provides a mechanism for relief.” 501 U.S. at 825;
Higgs v. United States, 711 F.Supp.2d 479, 527 (D. Md. 2010) (citing Payne, 501 U.S. at
825) (recognizing this mechanism for relief).
The burden to show such prejudice is “quite high.” Id. (citing United States v.
Barnette, 211 F.3d 803, 818–19 (4th Cir. 2000); United States v. McVeigh, 153 F.3d 1166,
1218-22 (10th Cir. 1998), overruled on other grounds by 184 F.3d 1206 (10th Cir. 1999)).
“[T]here is nothing unfair about allowing the jury to bear in mind [the specific] harm
[caused by the defendant] at the same time as it considers the mitigating evidence
introduced by the defendant.” Payne, 501 U.S. at 825–26; see also Williams v. Chrans, 945
F.2d 926, 947 (7th Cir. 1991) (holding that the prosecution “should not be required to
present victim impact evidence that [is] devoid of all passion,” explaining that “[s]uch
sterile prosecution of heinous crimes cannot be expected, let alone required”). Indeed, “[i]t
would be fundamentally unfair to shield a defendant from testimony describing the full
effects of an outrageous crime.” McVeigh, 153 F.3d at 1221; see United States v. Whitten,
610 F.3d 168, 190–91 (2d Cir. 2010) (stating that “[i]t cannot be expected that victim
impact testimony will be cool and dispassionate,” explaining that “[s]ome deaths cause
more suffering than others,” and “[t]he only way to ensure against victim impacts caused
by one’s murder of a well-loved human being is to take care to murder no one at all”);
Sullivan v. Nevins, No. 2:05-cv-00448-MMD-NJK, 2014 WL 3778611, at *12 (D. Nev.
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 122 of 140

~ 123 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
July 31, 2014) (finding that the victims’ statements, in a case where the murder victim was
young, “certainly did not render Sullivan’s sentencing fundamentally unfair,” in part,
because “[t]hose statements reflected the victims’ quite understandable emotional reaction
to Sullivan’s crimes”); Gentry v. Sinclair, 576 F.Supp.2d 1130, 1165 (W.D. Wash. 2008)
(holding that state-court decision, finding victim-impact testimony not unduly prejudicial,
did not violate § 2254(d)(1) or (2) even though there was “no doubt that the jury was moved
by testimony concerning the void created by [murder victim]’s tragic loss, given the jury’s
knowledge of the nature of Cassie’s death”).
Here, the VIE was not unduly prejudicial based on few members of Devon’s family
who spoke, the briefness of their statements, and the quick glimpse of Devon’s life that
they gave, revealing his interests and personality. See United States v. Mikhel, 889 F.3d
1003, 1052 (9th Cir. 2018) (quoting Payne, 501 U.S. at 822–23) (noting that VIE “gives a
‘quick glimpse’ of the victim’s life and of his ‘uniqueness as an individual human being’”).
The childhood photographs of Devon that his mother and great aunt presented to the
jury did not render the VIE, as a whole, unduly prejudicial. They presented only a few
photographs and did not display them with music. Moreover, none of the photographs
showed Devon’s body after police found him in the pool. Instead, they briefly illustrated
moments of Devon’s childhood, and helped humanize him. See Castillo v. Gittere, No.
2:04-cv-00868-RCJ-GWF, 2019 WL 189821, at *30 (D. Nev. Jan. 14, 2019) (holding that
admission of photograph of murder victim and her granddaughter at the granddaughter’s
graduation as VIE did not approach a due process violation). In light of the foregoing, and
the trial court’s instructions, the VIE at Chappell’s trial was not unduly prejudicial.
For the reasons discussed, appellate counsel did not render ineffective assistance on
direct appeal, and PCR counsel did not render ineffective assistance by failing to raise an
appellate IATC claim on this basis. See Turner, 281 F.3d at 872; Wildman, 261 F.3d at
840; Boag, 769 F.2d at 1344; cf. Pollard, 119 F.3d at 1435.
Claim 25 will be denied.
//
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 123 of 140

~ 124 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
XX. Claim 32
In Claim 32, Chappell alleges that his trial counsel, and the trial court violated his
Sixth Amendment right to a public trial and to a meaningful appeal, by failing to ensure
that all bench conferences were recorded. (Doc. 25 at 217–19.) Chappell acknowledges
this claim is technically exhausted but procedurally defaulted. (Id. at 217.) He argues the
procedural default should be excused under Martinez, although he does not expressly allege
that trial counsel rendered ineffective assistance by failing to ensure all bench conferences
were recorded, he claims trial counsel nevertheless violated his Sixth Amendment rights.
(Id. at 217–19.) The Court construes this claim as asserting an IATC claim.
A. Right to a Public Trial
The Sixth Amendment grants the accused the right to a public trial, U.S. Const.
amend VI—a right “personal to the accused,” Gannett Co. v. DePasquale, 443 U.S. 368,
379-80 (1979) (citation omitted). The United States Supreme Court has described the what
this right aims to do: for the accused’s “benefit . . . [,] that the public may see he is fairly
dealt with and not unjustly condemned, and that the presence of interested spectators may
keep his triers keenly alive to a sense of their responsibility and to the importance of their
functions . . . .” Waller v. Georgia, 467 U.S. 39, 46 (1984) (cleaned up). It also “encourages
witnesses to come forward and discourages perjury.” Id. (citing cases).
Waller does not suggest that Chappell was denied that right based on the unrecorded
bench and chamber conferences. See id. at 43–50. The concerns mentioned in Waller do
not exist in failing to record those conferences. Such exchanges between the court and
counsel on legal or administrative matters “do not hinder the objectives which the Court in
Waller observed were fostered by public trials.” United States v. Norris, 780 F.2d 1207,
1210 (5th Cir. 1986); see also Rovinsky, 722 F.2d 197, 201 (5th Cir. 1984) (“Sidebar
conferences in which the defendant’s counsel participates without objection do not violate
the right to a public trial.”).
In fact, they do not serve a fact-finding purpose. Norris, 780 at 1210. What is more,
“[a] routine evidentiary ruling is rarely determinative of the accused’s guilt or innocence.”
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 124 of 140

~ 125 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Id. at 1210. And such rulings “ordinarily pose no threat of judicial, prosecutorial or public
abuse that a public trial is designed to protect against.” Id. at 1210–11. Chappell has not
shown otherwise. In short, the court did not violate Chappell’s Sixth Amendment right to
a public trial. Cf. United States v. Cavallo, 790 F.3d 1202, 1231 n.18 (11th Cir. 2015)
(summarily finding defendant’s argument that district court erred “by holding sidebar
conferences in violation of [d]efendants’ right to a public trial” lacked merit).
B. Right to a Meaningful Appeal
Griffin v. Illinois, 351 U.S. 12 (1956), “is the watershed of [the United States
Supreme Court’s] transcript decisions.” Mayor v. City of Chicago, 404 U.S. 189, 193
(1971). Griffin holds that due process and equal protection assures that “[d]estitute
defendants” receive “as adequate appellate review as” those who can afford the transcripts.
351 U.S. at 17, 19. To that end, the state must supply “an indigent defendant” with the
transcripts “needed for an effective defense or appeal.” Britt v. North Carolina, 404 U.S.
226, 433 (1971); see also United States v. Carrillo, 902 F.2d 1405, 1409 (9th Cir. 1990)
(citing Hardy v. United States, 375 U.S. 277, 279–82 (1964)) (“A criminal defendant has
a right to a record on appeal which includes a complete transcript of the proceedings at
trial.”). This need depends on the transcript’s value on appeal to the accused and “the
availability of alternative devices that would fulfill the same functions as a transcript.”
Britt, 404 U.S. at 433-34.
In light of those two factors, Chappell must show that the omissions from the
transcripts prejudiced him. Madera v. Risley, 885 F.2d 646, 648-49 (9th Cir. 1989); see
also Scott v. Elo, 302 F.3d 598, 604 (6th Cir. 2002) (applying this burden to federal habeas
cases); White v. State of Florida Dep’t of Corrections, 939 F.2d 912, 914 (11th Cir. 1991)
(same).
Chappell has not shown prejudice. He asserts that “[t]he omissions from the trial
court record deprived [him] of a meaningful appeal because it was impossible for the
Arizona Supreme Court to conduct its independent review of the death sentence with so
many proceedings unrecorded.” (Doc. 25 at 219.) But he does not explain why the court
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 125 of 140

~ 126 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
could not have effectively performed that review without them or that the omitted portions
would have justified relief. See Madera, 885 F.2d at 648 (denoting that a petitioner must
state a “tenable theory” about the appealable error that would have been found but for the
absent transcript); Scott, 302 F.3d at 605 (finding no prejudice where Scott merely asserted
“gross speculation of error” in the transcript’s missing part). For that reason, Chappell has
failed to show prejudice.
Claim 32 will be denied as inexcusably procedurally defaulted.
CHALLENGES TO THE DEATH PENALTY
XXI. Claim 16
Chappell claims that the death penalty violates the Eighth Amendment. (Doc. 25 at
167–70.) He asserts that it is cruel because it is unreliably and arbitrarily imposed resulting
in the sentencing and execution of innocent persons or such imposition is influenced by
improper considerations, including race, geographic location of the crime, and the gender
of the victim or defendant. (Id. at 168–69.) He contends that it is also unusual, as the
number of death sentences and executions have “plummeted” nationally in the past two
decades, due to repeals and moratoria, such that only a few counties in a few states impose
death sentences. (Id. at 169–70.) He further argues that capital punishment no longer serves
a penological goal. (Id. at 170.)
The United States Supreme Court has held that capital punishment does not, per se,
violate the Eighth Amendment. Gregg v. Georgia, 428 U.S. 153, 169 and 187 (1976); see
Glossip v. Gross, 576 U.S. 863, 881 (2015) (same); United States v. Fell, 224 F.Supp.3d
327, 358 (D. Vt. 2016) (“Gregg is still the law of the land.”). The Eighth Amendment
“draw[s] its meaning from . . . evolving standards of decency.” Roper v. Simmons, 543 U.S.
551, 594 (2005) (O’Connor, J. dissenting) (quoting Trop v. Dulles, 356 U.S. at 101 (1958)
(plurality opinion)). Nevertheless, it is the Supreme Court’s prerogative alone to overrule
its precedents. State Oil Co. v. Khan, 522 U.S. 3, 20 (1997). The Supreme Court has not
overruled capital punishment based upon the factors cited by Chappell. Accordingly, in
light of Gregg and its progeny, the Court will deny Claim 16 as without merit.
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 126 of 140

~ 127 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
XXII. Claim 17
Chappell alleges that Arizona’s death-penalty scheme is unconstitutional in two
ways. First, he alleges that it violates the Eighth Amendment because it does not allow full
consideration of a mitigating circumstance unless it is supported by a preponderance of the
evidence under § 13-703(C) of the Arizona Revised Statutes (2003). (Doc. 25 at 171–73.)
Second, he alleges the Arizona scheme violates the Fifth and Eighth Amendments because
it does not require the Arizona Supreme Court to conduct a comparative proportionality
review. (Id. at 172–73.) Chappell claims the Arizona Supreme Court’s denial of this claim
on the merits was contrary to, or unreasonably applied, clearly established federal law and
that it unreasonably determined the facts. (Doc. 87 at 108) (citing Chappell, 236 P.3d at
1190).
As to his allegation that the court unreasonably determined the facts, he appears to
challenge the sufficiency of the fact-finding process, which limited consideration of
mitigating circumstances to those shown by a preponderance of the evidence and by the
Arizona Supreme Court’s abandonment comparative proportionality review of a death
sentence. Chappell alleges that at the time of the crime, he was 21 years old, whose brain
was still developing and that he had a brain impairment that impacted his ability to make
reasoned decisions, which caused him act impulsively. (Doc. 25 at 182.)
The United States Supreme Court has upheld Arizona’s requirement that a
mitigating circumstance be supported by a preponderance of the evidence. See Walton, 497
U.S. at 649–51; see Kansas v. Marsh, 548 U.S. 163, 173 (2006) (same). For the reasons
discussed in connection with Claim 21, comparative proportionality review is not
constitutionally required. The Court will deny Claim 17 as meritless.
XXIII. Claim 18
Chappell alleges Arizona’s death-penalty scheme violates the Eighth Amendment
by giving the prosecutor “unbridled” discretion to seek a death sentence, resulting in
“arbitrary and capricious charging decisions” and inconsistent treatment of similar cases.
(Doc. 25 at 173-75.)
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 127 of 140

~ 128 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
The Supreme Court has observed that the discretionary stages of a criminal case,
including a prosecutor’s decision whether to seek a death sentence, are not determinative
of the constitutionality of a death sentence. Gregg, 428 U.S. at 199 & n.50; see Jurek v.
Texas, 428 U.S. 262, 274 (1976); Proffitt v. Florida, 428 U.S. 242, 254 (1976); see also
Smith v. Stewart, 140 F.3d 1263, 1272 (9th Cir. 1998) (upholding Arizona’s death penalty
scheme despite prosecutor’s discretion whether to seek a death sentence). Absent citation
to contrary controlling authority, the Arizona Supreme Court’s denial of this claim was
neither contrary to, nor an unreasonable application of, clearly established federal law.
Claim 18 will be denied.
XXIV. Claim 21
Chappell alleges that the absence of a proportionality review under Arizona’s death-
penalty scheme violates Fourteenth Amendment due process and equal protection and the
Eighth Amendment. (Doc. 25 at 178–80.) However, there is no federal constitutional right
to proportionality review of a death sentence. McCleskey v. Kemp, 481 U.S. 279, 306
(1987) (citing Pulley v. Harris, 465 U.S. 37, 43 (1984)); see Allen v. Woodford, 395 F.3d
979, 1018–19 (9th Cir. 2005). The “substantive right to be free from a disproportionate
sentence” is protected by the application of “adequately narrowed aggravating
circumstance[s].” Ceja v. Stewart, 97 F.3d 1246, 1252 (9th Cir. 1996). Claim 21 will be
denied as without merit.
XXV. Claim 22
Chappell argues that the Arizona sentencing scheme violates the Fifth, Eighth, and
Fourteenth Amendments. First, he alleges that the scheme does not require that the jury
find proven aggravating circumstances outweigh proven mitigating circumstances beyond
a reasonable doubt. (Doc. 25 at 190). Second, he alleges that the Arizona scheme fails to
specify the burden of persuasion on the parties or require the trial court to instruct the jury
about how to weigh the aggravating and mitigating circumstances.39 (Id.)
39 Under the Arizona capital sentencing scheme, to impose a death sentence a jury must
find that the State has proven any aggravating circumstance beyond a reasonable doubt and
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 128 of 140

~ 129 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Chappell cites Kansas v. Marsh in support of this claim. In Marsh, the United States
Supreme Court compared the Kansas death penalty statute to Arizona’s, finding the Kansas
statute was analogous except that the Kansas statute required the state to bear the burden
of proving that aggravating circumstances were not outweighed by mitigating
circumstances beyond a reasonable doubt. 548 U.S. 163, 173 (2006). Chappell asserts that
the Supreme Court upheld the Kansas statute for that reason, arguing it implicitly
disfavored the differences between the two statutes. In Marsh, the Court evaluated the
constitutionality of the Kansas death penalty statute. It did not find Arizona’s statute—
which it has previously upheld in relevant part, see Walton, 497 U.S. 639—was therefore
unconstitutional because it did not require that aggravating circumstances outweigh
mitigating circumstances beyond a reasonable doubt or did not impose a specified burden
of proof on the parties.
More generally, the United States Supreme Court has not held that the Constitution
requires a jury to find that proven aggravating circumstances outweigh proven mitigating
circumstances beyond a reasonable doubt or specified a standard for weighing them. See
Marsh, 548 U.S. at 175 (citing Franklin v. Lynaugh, 487 U.S. 164, 179 (1988)). To the
contrary, the Supreme Court has held that a “capital sentencer need not be instructed how
to weigh” any fact in deciding the sentence. Tuilaepa v. California, 512 U.S. 967, 979
(1994); see also Stephens, 462 U.S. at 875 n.13 (“specific standards for balancing
aggravating against mitigating circumstances are not constitutionally required”); see also
Smith v. Stewart, 140 F.3d 1263, 1272 (9th Cir. 1998) (rejecting the same claim raised by
Chappell here).
Chappell suggests that Hurst v. Florida, 577 U.S. 92 (2016), requires that the
sentencer find the aggravating circumstances outweigh the mitigating circumstances
beyond a reasonable doubt. (Doc. 87 at 123–24.) In Hurst, the Supreme Court held that the
that the aggravating circumstances outweigh the mitigating circumstances, which the
defendant must prove by a preponderance of the evidence. Ariz. Rev. Stat. § 13-703(C) &
(E).
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 129 of 140

~ 130 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
jury, not the judge, must find the evidence supports each alleged aggravator beyond a
reasonable doubt. 577 U.S. 92. The Court did not require that the jury find that aggravating
circumstances outweigh the mitigating circumstances beyond a reasonable doubt. See id.
Further, the Supreme Court has held that the sentencer has “unbridled discretion” in the
weighing process. See Stephens, 462 U.S. at 875.
Chappell also alleges that Arizona’s death-penalty scheme does not place a burden
of proof on the state’s rebuttal evidence to proven mitigators and asserts that State rebuttal
evidence constitutes “additional” aggravating evidence with which to outweigh mitigators
established by a preponderance of the evidence. (Doc. 25 at 182–83.) Chappell seemingly
argues that the State should not be able to attempt to rebut mitigating evidence. But in the
adversary system, each party is entitled to challenge the evidence presented by the other.
And thus allowing a State to attempt to rebut a defendant’s mitigating evidence does not
add “additional” aggravating evidence. Instead, it requires that a defendant carefully
consider whether proffered mitigating evidence opens the door to damaging rebuttal
evidence. The United States Supreme Court has not held that this practice is
unconstitutional. Moreover, the “penalty phase”—when mitigation evidence is
considered—the sentencer has “unbridled discretion” in deciding whether to sentence a
defendant to death after finding the defendant eligible for a death sentence. Stephens, 462
U.S. at 875. Chappell has not shown that the state court’s denial of this claim is contrary
to, or an unreasonable application of, clearly established federal law. The Court will deny
Claim 22.
XXVI. Claim 23
Chappell alleges that Arizona’s death-penalty scheme violates the Eighth
Amendment by failing to provide objective standards to the sentencer in weighing the
aggravators against the mitigators. (Doc. 25 at 183–84.) As discussed above, the United
States Supreme Court has never held that the Constitution requires a particular method for
weighing the factors. Marsh, 548 U.S. at 175. Rather, it has held that the sentencer has
“unbridled discretion” in deciding whether to sentence a defendant to death after it has
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 130 of 140

~ 131 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
found the defendant eligible for capital punishment. Stephens, 462 U.S. at 875. Chappell
has not shown that the state court’s denial of this claim is contrary to, or an unreasonable
application of, clearly established federal law. The Court will deny Claim 23.
XXVII. Claim 24
Chappell alleges that Arizona’s death-penalty scheme violates the Eighth
Amendment by insufficiently channeling the sentencer’s discretion. (Doc. 25 at 184–86.)
He alleges that § 13-1105(A) (2003) of the Arizona Revised Statutes broadly defined the
conduct constituting first-degree murder such that it encompassed the majority of murders
and effectively relied on Arizona’s statutory aggravating circumstances under § 13-703(F)
(2003) (amended and renumbered § 13-751) (2012)), to narrow the defendants eligible for
a death sentence for first-degree murder). Chappell further alleges that Arizona’s statutory
aggravating circumstances “sweep so expansively that they do not meaningfully separate
out a group of offenders whose crimes are so egregious that they are eligible for the death
penalty,” from those whose crimes are not so egregious.40 (Id. at 185–86.)
40 Aggravating circumstances under former § 13-703(F) (2003) were:
(1) a prior conviction for which a sentence of life imprisonment or death
could have been imposed under Arizona law;
(2) a previous conviction for a serious offense, whether preparatory or
completed, as set forth in § 13-703(H), and including convictions for
serious offenses committed on the same occasion as the homicide, or
not committed on the same occasion but consolidated for trial with the
homicide;
(3) knowingly creating a grave risk of death to another person or persons
in addition to the person murdered during the commission of the
offense;
(4) procuring the commission of the offense by payment, or promise of
payment, of anything of pecuniary value;
(5) committing the offense as consideration for the receipt or expectation
of receipt of anything of pecuniary value;
(6) committing the offense in an especially heinous, cruel or depraved
manner;
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 131 of 140

~ 132 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
To pass constitutional muster, a State’s capital sentencing scheme must “genuinely
narrow the class of persons eligible for the death penalty and must reasonably justify the
imposition of a more severe sentence on the defendant compared to others” found guilty of
a capital offense. Stephens, 462 U.S. at 877. A State’s death penalty scheme must provide
an “objective, evenhanded and substantively rational way” to determine whether a
defendant is eligible for the death penalty. Id. at 879. Defining specific “aggravating
circumstances” is the accepted “means of genuinely narrowing the class of death-eligible
persons and thereby channeling the [sentencer’s] discretion.” Lowenfield v. Phelps, 484
U.S. 231, 244 (1988). The ultimate purpose of statutory aggravating circumstances is to
direct, and limit, sentencing discretion and minimize the risk of arbitrary and capricious
infliction of the death penalty.
Subject to the constitutional requirement that a state’s death-penalty scheme define
the class of defendants eligible for capital punishment in a non-arbitrary manner, states are
free to determine the aggravating circumstances that define that class of defendants. “[T]he
presence of aggravating circumstances serves the purpose of limiting the class of death-
eligible defendants” and “the requirement of individualized sentencing in capital cases” by
allowing the sentencer to consider all relevant mitigating evidence. Blystone v.
Pennsylvania, 494 U.S. 299, 306–07 (1990). Thus, a state capital sentencing scheme must
(7) committing the offense while in custody of, or on authorized or
unauthorized release from, state department of corrections, law
enforcement agency, or a county or city jail, or on probation for a
felony;
(8) conviction of one or more other homicides committed during the
commission of the offense;
(9) the defendant was an adult when the offense was committed, or was
tried as an adult, and the murdered person was less than 15, or more
than 70, years old; and
(10) the murdered person was an on-duty peace officer killed in the course
of performing the officer’s official duties and the defendant knew, or
should have known, that the murdered person was a peace officer.
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 132 of 140

~ 133 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(1) rationally narrow the class of death-eligible defendants; and (2) permit the sentencer to
render a reasoned individualized sentencing determination based upon the death-eligible
defendant’s record, personal characteristics, and the circumstances of his crime. Marsh,
548 U.S. at 173–74.
At relevant times, Arizona law provided that a person commits first-degree murder
if, intending or knowing his conduct will cause death, he causes the death of another with
premeditation, he commits or attempts to commit one or more specified felonies, e.g.,
felony murder,41 or he intends or knows his conduct will cause death to a law enforcement
officer in the line of duty. Ariz. Rev. Stat. § 13-1105(A) (2002). A person convicted of
first-degree murder is eligible for a death sentence if a jury unanimously finds at least one
aggravating circumstance proven beyond a reasonable doubt. Ariz. Rev. Stat. § 13-703(A)
(2003) (amended and renumbered as § 13-751) (2012). If a jury unanimously finds at least
one aggravating circumstance beyond a reasonable doubt, it must then determine that there
are “no mitigating circumstances sufficiently substantial to call for leniency,” before
imposing a death sentence.42 Ariz. Rev. Stat. § 13-703(E) (2003) (amended and
renumbered § 13-751(E) (2012)).
Arizona’s capital sentencing scheme both genuinely narrowed the class of first-
degree murderers eligible for a death sentence by requiring a jury to unanimously find at
least one aggravating circumstance proven beyond a reasonable doubt, and by permitting
a jury to render a reasoned individualized sentence based on a death-eligible defendant’s
record, personal characteristics, and the circumstances of his crime. Consequently, the
41 First-degree felony murder under A.R.S. § 13-1105(A)(2) required no mental state other
than that required for the commission of enumerated felony involved. Ariz. Rev. Stat. 13-
1105(B) (2002).
42 Mitigating circumstances had to be proven by a preponderance of the evidence and could
be presented regardless of admissibility under the rules governing admission of evidence
at criminal trials, and jurors did not have to agree unanimously that a mitigating
circumstance had been so proven, and each juror could consider any mitigating
circumstance found by that juror in determining the appropriate penalty. Ariz. Rev. Stat.
§ 13-703(C) (2003).
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 133 of 140

~ 134 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Arizona Supreme Court’s denial of this claim was neither contrary to, nor involved an
unreasonable application of clearly established federal law. Further, Chappell has not
alleged or shown that the denial of this claim by the Arizona Supreme Court was based on
an unreasonable determination of the facts in light of the evidence presented in state court.
The Court will deny Claim 24.
XXVIII. Claim 26
Chappell alleges that execution by lethal injection is cruel and unusual, citing
numerous instances of ad hoc changes to Arizona’s lethal execution protocol and failure or
inability to comply with the protocol, and alleges that his sentence, if carried out, will
violate his Eighth and Fourteenth Amendment rights. (Doc. 25 at 190–97.) Respondents
argue that the United States Supreme Court has never invalidated lethal injection, or any
state’s lethal-injection protocol, and that the claim is premature, where “there is no
certainty that the current protocols will be in place when a warrant for [Chappell’s]
execution is issued.” (Doc. 33 at 240–41 & n.142.)
The Arizona Supreme Court denied this claim on direct appeal. Chappell, 236 P.3d
at 1191, App. at 14. These rulings were not contrary to or an unreasonable application of
clearly established federal law. See, e.g., Baze, 553 U.S. at 50. The Ninth Circuit has
concluded that Arizona’s lethal injection protocol does not violate the Eighth Amendment.
See Dickens v. Brewer, 631 F.3d 1139 (9th Cir. 2011). Further, in Nance v. Ward, the
United States Supreme Court indicated that such claims may be raised in a separate civil
rights case under 42 U.S.C. § 1983, applying the standard described in Bucklew v. Precythe,
587 U.S. 119 (2019). See Nance v. Ward, 597 U.S. 159, 169 (2022) (where litigant
challenges only execution method, § 1983 is the appropriate vehicle).
Chappell speculates, based on the last decade of Arizona’s execution protocols, that
the Arizona protocol in place if, and when, he is executed will violate the Eighth
Amendment. To the extent that Chappell alleges that the protocol for his execution will
violate the Eighth Amendment, his claim is both speculative and premature. See Baze, 553
U.S. at 50 (citing Helling v. McKinney, 509 U.S. 25, 33 (1993)). The Court will deny Claim
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 134 of 140

~ 135 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
26 without prejudice.
XXIX. Claim 27
Chappell also alleges that Arizona’s death-penalty scheme violates the Eighth
Amendment by requiring the jury to sentence a defendant to death if one aggravator is
found beyond a reasonable doubt but no mitigator is found by a preponderance of the
evidence. (Doc. 25 at 197–98.)
As described above, in Arizona, a jury must first find at least one aggravator beyond
a reasonable doubt and that no mitigators “sufficiently substantial to call for leniency” exist
before it can impose a death sentence. Ariz. Rev. Stat. § 13-751(E). The United States
Supreme Court has found Arizona’s scheme, in relevant part, constitutional. See Jeffers,
497 U.S. at 774–77; Walton, 497 U.S. at 649–56; see also Smith, 140 F.3d at 1272.
Chappell nonetheless implies that Arizona’s requirement that he must prove
mitigators by a preponderance of the evidence is unconstitutional because it allegedly bars
the jury from considering any aspect of his character or record that could support a non-
death sentence. (Doc. 25 at 198.) The same claim was raised in Walton, which the Supreme
Court rejected. Walton, 497 U.S. at 649-51. While the Court described the Arizona scheme
in Marsh, it did not overrule the relevant holding in Walton, which still controls, 548 U.S.
at 173; see also United States v. Mitchell, 502 F.3d 931, 993 (9th Cir. 2007). Chappell has
not shown that the state court’s denial of this claim was contrary to, or an unreasonable
application of, clearly established federal law.
The Court will deny Claim 27.
XXX. Claim 28
Chappell claims that the Eighth Amendment bars the execution of those who, like
Chappell, committed the capital crime at 21 years old. (Doc. 25 at 199–203.) To support
this claim, he cites a study that concludes that in terms of one’s impulse control, planning,
and thinking ahead, the brain continues to develop after the age of 21. (Id. at 201–02.) For
that reason, he argues that executing one whose brain has not fully developed does not
serve the penological purpose of retribution or deterrence. (Id. at 202.) He adds that “his
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 135 of 140

~ 136 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
brain impairment made his behavior more similar to that of a juvenile than that of an adult.”
(Doc. 25 at 202–03.) To support this whole claim, he cites Atkins, which held that the
Eighth Amendment bars the execution of the intellectually disabled, 536 U.S. 304, and
Roper, which held that the Eighth Amendment bars the execution of those who committed
the crime under the age of eighteen, 543 U.S. 551. He also cites Eddings, 455 U.S. at 115,
which states that “youth is more than a chronological fact.” (Doc. 25 at 202.)
In Roper, the United States Supreme Court flatly held that “[t]he Eighth and
Fourteenth Amendments forbid imposition of the death penalty on offenders who were
under the age of 18 when their crimes were committed.” 543 U.S. at 578. Roper, in sum,
categorically bans executing juveniles in the same way that Atkins categorically bans
executing the intellectually disabled. Id. at 564, 567; see also Hall v. Florida, 572 U.S.
701, 708 (2014) (noting, in discussing Roper and Atkins, that “[t]he Eighth Amendment
prohibits certain punishments as a categorical matter”). As a result, neither Roper nor
Atkins extend to Chappell. Claim 28 therefore lacks merit, under § 2254(d), or otherwise.
XXXI. Claim 31
Chappell claims that his death sentence violates the Eighth Amendment under
Atkins because the frontal lobe of his brain is impaired. (Doc. 25 at 262–65.) He concedes
that the claim is technically exhausted but procedurally defaulted, as he did not raise it in
state court. (Doc. 87 at 148.) Nonetheless, he asks this Court to excuse the default based
on cause and prejudice. (Id. at 149.) He contends that PCR counsel rendered ineffective
assistance by failing to allege that appellate counsel rendered ineffective assistance by
failing to raise this Eighth Amendment claim on direct appeal. (Id.) As discussed herein,
the ineffective assistance of PCR counsel can only establish cause to excuse an IATC claim
under Martinez. Accordingly, the ineffective assistance of PCR counsel does not establish
cause to excuse the procedural default of this claim. Davila, 582 U.S. at 529–31.
Consequently, the default is not excused and Claim 31 will be denied.
EVIDENTIARY DEVELOPMENT
Chappell requests evidentiary development with respect to Claims 1, 2(A)(1),
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 136 of 140

~ 137 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2(A)(2), 2(A)(3), 2(C)(1), 2(C)(2), 3, 16, 17-29, 30, and 31. (Doc. 105.) He seeks
discovery, an evidentiary hearing, and expansion of the record under Rules 6, 7, and 8 of
the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. (Id.) Chappell seeks evidentiary
development in support of his claims and/or to support cause for the procedural default of
claims under Martinez.
I. Exhausted Claims
Claims 2(A)(1) and (3), 2(C)(1), 16, 17 (in part), 18 through 28, and 29 (in part)
were raised and denied on the merits in state court. This Court’s “review under § 2254(d)(1)
is limited to the record that was before the state court that adjudicated the claim on the
merits.” Pinholster, 563 U.S. at 181; see Gulbrandson, 738 F.3d at 993 & n.6 (“explaining
that for claims that were adjudicated on the merits in state court, petitioners can rely only
on the record before the state court in order to satisfy the requirements of § 2254(d)” and
noting this “evidentiary limitation” also applies to claims under § 2254(d)(2)).
Chappell contends that the claims satisfy § 2254(d) based on the state-court record
and evidentiary development is necessary for the Court to conduct de novo review. As set
forth above, however, the Court has found that the state court denials of the claims were
not unreasonable under 28 U.S.C. § 2254(d). Because they do not satisfy § 2254(d)(1) or
(2) based on the state court record, the Court is precluded from considering new evidence
in support of the claims. See Stokley v. Ryan, 659 F.3d 802, 809 (9th Cir. 2011)
(citing Pinholster, 563 U.S. at. 185). “Under these circumstances, there is no reason to hold
an evidentiary hearing or expand the record and no good cause exists to authorize
discovery.” Johnson v. Thornell, No. CV-18-00889-PHX-MTL, 2025 WL 3204780, at
*132 (D. Ariz. Nov. 17, 2025), citing Sully v. Ayers, 725 F.3d 1057, 1075 (9th Cir. 2013),
(“[A]n evidentiary hearing is pointless once the district court has determined that §
2254(d) precludes habeas relief.”).
II. Procedurally Defaulted Claims
The remaining claims for which Chappell seeks evidentiary development—Claims
1, 2(A)(2), 2(C)(2), 3, 17 (in part), 29 (in part), 30, and 31—were not presented in state
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 137 of 140

~ 138 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
court. As Chappell notes, the restrictions of Pinholster do not apply when there has been
no state court adjudication of a claim on the merits. (Doc. 105 at 14.) He cites Dickens, 740
F.3d at 1320, 1321, for the proposition that a petitioner may present new evidence in
support of a new claim or to support a cause-and-prejudice argument under Martinez for a
claim’s default because Pinholster applies only to claims previously adjudicated on the
merits in State court proceedings. (Id.)
For unexhausted claims, the Court’s “‘discretion . . . to consider new evidence’ . . .
is . . . cabined by the requirement in § 2254(e)(2) that the petitioner must have attempted
‘to develop the factual basis of [the] claim in State court.’” Stokley, 659 F.3d at 808
(quoting Pinholster, 563 U.S. at 186).
Under § 2254(e)(2), a federal court may not hold an evidentiary hearing unless it
first determines that the petitioner exercised diligence in trying to develop the factual basis
of the claim in state court. See Michael, 529 U.S. at 432. If the failure to develop a claim’s
factual basis is attributable to the petitioner, the court may hold a hearing only if the claim
relies on (1) “a new rule of constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable” or (2) “a factual predicate that
could not have been previously discovered through the exercise of due diligence.” 28
U.S.C. § 2254(e)(2). In addition, “the facts underlying the claim [must] be sufficient to
establish by clear and convincing evidence that but for constitutional error, no reasonable
fact finder would have found the [petitioner] guilty of the underlying offense.” Id.
Section 2254(e)(2) limits a petitioner’s ability to present new evidence through a
Rule 7 motion to the same extent that it limits the availability of an evidentiary hearing.
See Cooper-Smith v. Palmateer, 397 F.3d 1236, 1241 (9th Cir. 2005), overruled on other
grounds by Daire v. Lattimore, 812 F.3d 766 (9th Cir. 2016) (en banc); Holland v. Jackson,
542 U.S. 649, 652–53 (2004) (per curiam). Accordingly, a petitioner who seeks to
introduce new affidavits and other documents never presented in state court must
demonstrate diligence in developing the factual basis in state court or satisfy the
requirements of § 2254(e)(2).
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 138 of 140

~ 139 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Chappell contends that the failure to develop the factual basis of these claims
resulted from the ineffective assistance of PCR counsel. This argument is foreclosed by the
United States Supreme Court’s recent decision in Ramirez, which held that “under §
2254(e)(2) a federal habeas court may not conduct an evidentiary hearing or otherwise
consider evidence beyond the state-court record based on ineffective assistance of state
postconviction counsel.” Ramirez, 596 U.S. at 382.
According to Ramirez, a petitioner is at fault when PCR counsel is negligent in
developing the record, and therefore “a federal court may order an evidentiary or otherwise
expand the state-court record only if the prisoner can satisfy § 2254(e)(2)’s stringent
requirements.” Id. at 384.
Chappell has not met those standards. The claims for which he seeks evidentiary
development do not rely on a new, retroactive rule of constitutional law. Nor do they rely
on a factual predicate that could not have been discovered previously through due
diligence. The evidence Chappell seeks to develop, consisting largely of additional
information from previous counsel and defense team members, mental health experts, and
family members and acquaintances, existed during the state court proceedings, so there is
no new factual predicate under § 2254(e)(2). Finally, the facts underlying the claims are
insufficient to establish by clear and convincing evidence that but for constitutional error,
no reasonable juror would have found Chappell guilty of the murders or sentenced him to
death. See id.
Chappell is not entitled to evidentiary development.
CERTIFICATE OF APPEALABILITY
Pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure, a petitioner
cannot take an appeal unless a certificate of appealability (“COA”) has been issued by an
appropriate judicial officer. Rule 11(a) of the Rules Governing Section 2254 Cases
provides that the district judge must either issue or deny a certificate of appealability when
it enters a final order adverse to the applicant. If a certificate is issued, the court must state
the specific issue or issues that satisfy 28 U.S.C. § 2253(c)(2).
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 139 of 140

~ 140 ~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Under § 2253(c)(2), a certificate of appealability may issue only when the petitioner
“has made a substantial showing of the denial of a constitutional right.” This showing can
be established by demonstrating that “reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner” or that the
issues were “adequate to deserve encouragement to proceed further.” Slack v. McDaniel,
529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)).
For procedural rulings, a certificate of appealability will issue only if reasonable jurists
could debate whether the petition states a valid claim of the denial of a constitutional right
and whether the court’s procedural ruling was correct. Id. The Court finds that reasonable
jurists could debate its resolution of Claim 2(A)(4), alleging ineffective assistance of trial
counsel.
CONCLUSION
The Court has considered Chappell’s claims and has determined that none warrant
a writ of habeas corpus. Accordingly,
IT IS ORDERED denying Chappell’s Petition for Writ of Habeas Corpus. The
Clerk of Court shall enter judgment accordingly.
IT IS FURTHER ORDERED granting in part and denying in part Chappell’s
Notice of Request for Evidentiary Development, adding solely Exhibits 1 through 3 from
the Notice to the Court’s record.
IT IS FURTHER ORDERED granting a certificate of appealability as to Claim
2(A)(4) and denying a certificate of appealability as to the rest of Chappell’s claims.
IT IS FURTHER ORDERED that the Clerk of Court forward a courtesy copy of
this Order to the Clerk of the Arizona Supreme Court, 1501 West Washington Street,
Phoenix, Arizona 85007-3329.
Dated this 6th day of March, 2026.
Honorable Steven P. Logan
United States District Judge
Case 2:15-cv-00478-SPL Document 141 Filed 03/06/26 Page 140 of 140