Morris v. Shinn et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Cory Deonn Morris,
Petitioner,
v.
Ryan Thornell, et al.,
Respondents.
No. CV-17-00926-PHX-DGC
DEATH-PENALTY CASE
ORDER
Petitioner Cory Deonn Morris, a state prisoner under sentence of death, has filed a
Petition for Writ of Habeas Corpus. (Doc. 21 (Petition).)1 Morris alleges, pursuant to 28
U.S.C. § 2254, that he is imprisoned and sentenced in violation of the United States
Constitution. He seeks expansion of the record, discovery, and an evidentiary hearing in
support of several of the claims he raises in his 400-page Petition. (Doc. 43.) Respondents
oppose the Petition and the request for evidentiary development. (Docs. 27, 60.) Morris
has replied with memoranda in support of the Petition and the request for discovery and
evidentiary development. (Docs. 34, 64.) The Petition and the request for discovery and
evidentiary development are denied for the reasons set forth below.
I. BACKGROUND
In 2005, Morris was convicted of the first-degree murders of Barbara Codman,
Shanteria Davis, Jade Velasquez, Sharon Noah, and Julie Castillo. State v. Morris, 215
Ariz. 324, 332, 160 P.3d 203, 211 (2007). The following facts concerning the crimes are
1 “Doc.” refers to numbered documents in this Court’s electronic case docket and
page citations are to page numbers generated by the Court’s electronic filing system.
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drawn from the Arizona Supreme Court’s opinion in Morris, 215 Ariz. 324, 160 P.3d 203,
and this Court’s review of the record.2 The state court’s factual findings are “presumed
correct.” Atwood v. Ryan, 870 F.3d 1033, 1039 (9th Cir. 2017) (citing 28 U.S.C.
§ 2254(e)(1)).3
Morris lived in a camper in the backyard of his aunt and uncle’s house in Phoenix
and worked at a bar approximately three nights a week. In April 2003, Morris’s boss
noticed for the first time that Morris had a body odor problem. Morris’s aunt and uncle
also noticed that Morris had a body odor problem that had become progressively worse
since he began living with them six months earlier.
On April 12, 2003, when Morris’s uncle went to the camper to find Morris, he
smelled a “rotten odor” in the backyard and saw flies inside the window of the camper. As
he opened the door and stepped inside, he saw flies and maggots “boiling on the floor.”
He discovered the decomposed body of Julie Castillo under a blanket.
Police officers questioned Morris about the body in his camper, as well as four other
bodies that had been found nearby. Morris admitted to knowing the five victims and
provided two versions of each victim’s death. In the first version, he claimed that each
victim died of a drug overdose while he was away from the camper. After discussing all
2 “ROA” refers to the indexed documents from the Maricopa County Superior Court
trial and post-conviction proceedings in CR 2003-011506-00. “DA” refers to the indexed
documents from the Arizona Supreme Court direct review proceedings in CR-05-0267-
AP. “PR” refers to the indexed documents from the Arizona Supreme Court’s review of
post-conviction proceedings in CR-15-0442-PC. Exhibits to the post-conviction petition
are labeled “PCR Pet. Ex.” and exhibits from the post-conviction evidentiary hearing are
labeled “PCR EH Ex.” These exhibits are located at PR 12 and 13, respectively. Trial
exhibits are referred to as “Trial Ex.” and these and some select post-conviction exhibits
were submitted electronically to the Court by Morris. (See Doc. 37.)
3 The Court’s recitation of facts derived from Morris in the Background section is
not intended to be an implicit rejection of any of Morris’s claim-specific challenges to the
presumption of correctness.
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five victims, the detective conducting the interview told Morris that he did not believe him.
Morris then stated that each victim asked him to choke her during sex and that each
accidentally died as a result of this conduct.
Barbara Codman
On September 11, 2002, police discovered Barbara Codman’s naked, decomposed
body in an alley just north of Morris’s residence. Police found drag marks from the
sidewalk crossing the alley into the alley itself. Codman’s body exhibited skin slippage4
on her inner thighs and breast, and her head and neck were more decomposed than the rest
of her body.
Morris said he met Codman while walking at night and, for twenty dollars, she
agreed to come to his camper and have sex with him. Morris first said he went outside
after he and Codman had sex and, when he returned, Codman was sitting naked on the bed
using drugs. Morris told her to leave after she finished, and then he stepped outside. When
he went back into the camper, Codman was sitting on the bed panting, and she soon
collapsed. Morris dragged Codman out of the camper on a sleeping bag.
In his second version of events, Morris stated Codman asked him to choke her with
a necktie during sex. He did so, and she collapsed and never regained consciousness.
Morris kept some of Codman’s belongings. Analysts found Codman’s DNA on
some of the items. When Morris was arrested, he was carrying Codman’s social security
card, driver’s license, and check card in his wallet.
Because of the extensive decomposition of Codman’s head and neck, Dr. John Hu,
who performed her autopsy, was unable to conduct a detailed investigation for trauma in
that region. Dr. Hu originally determined that the cause of death was combined toxicity of
morphine and cocaine and listed the manner of death as undetermined because the
4 Skin slippage occurs when, in the postmortem phase, bacteria destroy connections
between the skin and the underlying tissue so that, with pressure and movement, the skin
begins to detach and slip off the body.
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circumstances surrounding Codman’s death were suspicious. After the police gave Dr. Hu
a transcript of Morris’s statements, he determined that “the cause of death is most likely
asphyxia due to ligature strangulation” because the autopsy results were not inconsistent
with such a determination.
Shanteria Davis
On October 10, 2002, police found Shanteria Davis’s naked, decomposed body in
the same alley in which Codman’s body had been discovered. Davis had skin slippage on
her back, buttocks, and the backs of her legs. Police found drag marks in the alley.
In his first version of events, Morris stated that, for five dollars, Davis agreed to
come back to his camper and have sex with him. After they had sex, Morris left Davis
alone in the camper for about an hour because she wanted to use drugs. When Morris
returned, Davis was unconscious but breathing. Morris covered her and left for his friend’s
house. When he returned the next morning, Davis was dead. That night, he dragged her
into the alley.
In his second version of events, Morris stated that Davis asked him to wrap her hair
extensions around her neck while they were having sex. Davis died as a result of this
conduct.
Police found hair extensions in Morris’s camper. DNA under Davis’s fingernails
matched Morris’s DNA. DNA analysis on panties found in Morris’s camper could not
exclude Davis as a source of the DNA.
Because of the extent of decomposition, Dr. Kevin Horn, who performed Davis’s
autopsy, could not determine whether Davis suffered any trauma. Based on the lack of
visible trauma and the presence of cocaine and cocaine breakdown products in her spleen,
Horn determined that the cause of death was cocaine intoxication. After reviewing a
transcript of Morris’s statements to the police, Dr. Horn stated that nothing in his autopsy
was inconsistent with strangulation.
/ / /
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Jade Velasquez
On February 27, 2003, police discovered the clothed body of Jade Velasquez just
outside the locked gate leading to the backyard where Morris’s camper was located.
Velasquez had ligature marks on the front and sides of her neck and bruising under her left
eye. Police noted “some disturbance” in the ground near the gate to the backyard, which
was consistent with removing the gate from its hinge and then replacing it. Police also
noted grass scuff marks on the sidewalk, indicating that the body had been dragged. A
detective spoke with Morris’s aunt during the investigation of Velasquez’s death.
During his interview with police, Morris first stated that Velasquez, a friend, agreed
to come to his camper for sex. He claimed that Velasquez was drunk when she arrived at
the camper and passed out before having sex with him. According to Morris, he realized
that Velasquez was dead when she did not wake up the next morning. He left for the day
and moved her body to the street that night.
In his second version of events, Morris stated that Velasquez asked him to use his
hands to choke her while they were having sex. Morris did so, and Velasquez passed out
and never regained consciousness. Morris put Velasquez’s clothes back on her before he
dragged her to the street because he knew her and did not want to leave her in the street
unclothed.
DNA from semen on a vaginal swab taken from Velasquez’s body matched Morris’s
DNA profile. Dr. Vladimir Shvarts, who performed Velasquez’s autopsy, found petechial
hemorrhages in her left eye and focal hemorrhagic areas inside her neck, and determined
that the cause of death was strangulation. Velasquez’s blood tested positive for alcohol,
cocaine metabolites, and benzodiazepines, but the combination of drugs was not sufficient
to cause death.
Sharon Noah
On March 29, 2003, police found Sharon Noah’s naked body approximately fifteen
to twenty feet from the location at which Velasquez’s body was discovered. There were
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ligature marks on Noah’s neck and skin slippage on her inner thighs, breasts, and hips.
Maggots were present on her body, and her hand and foot were mummified. Some of
Noah’s artificial fingernails were broken.
Morris first stated that he met Noah, who had the mental age of a ten- or eleven-
year-old, while out walking, and the two then went back to his camper and had sex.
Afterwards, Morris left because Noah wanted to use drugs. Noah was dead when he
returned. Morris then put a belt around Noah’s neck and pulled her body onto his sleeping
bag. He dragged her body outside that night. He threw away most of her clothes but kept
her shoes.
In his second version of events, Morris said that Noah suggested that he use the
nylon strap attached to Morris’s gym bag to choke her during sex. Morris did so, but when
Noah’s eyes closed, he stopped and noticed that she was no longer breathing. Morris left
the strap on Noah’s neck until he dragged her outside.
DNA on panties found in Morris’s camper matched both Morris’s and Noah’s DNA
profiles, and Morris’s DNA profile matched DNA on a vaginal swab taken from Noah.
Police also found broken fingernails in Morris’s camper.
Noah’s autopsy indicated that she died of ligature strangulation resulting in
asphyxia. Although toxicology reports showed that Noah had used cocaine before her
death and that her system contained GHB (gamma hydroxybutyrate), which is often used
in date rapes, drug overdose was not the cause of death. When asked how he would explain
the extensive skin slippage on Noah’s thighs, the medical examiner posited that some item
may have contacted her thighs postmortem.
Julie Castillo
The body discovered in Morris’s camper on April 12, 2003, was that of Julie
Castillo. The badly decomposed body was face down and her buttocks were near the
camper’s fold-down bed. There was a necktie around her neck.
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Morris first stated that he brought Castillo back to his camper because it was cold
and she needed a place to spend the night. Morris left the camper after Castillo asked if
she could smoke crack, and when he returned, Castillo was unconscious on the floor. He
took her clothes off because she had urinated on herself. The next day, he went to work,
and when he returned, he realized that Castillo was dead. Morris stayed in the camper that
night. When the detective conducting the interview asked whether Morris engaged in any
sexual activity while Castillo’s body was in the camper, Morris stated that he ejaculated in
his sleep but was facing away from Castillo’s body at the time. Morris originally said that
he never had sex with Castillo.
In his second version of events, Morris stated that Castillo asked him to choke her
with a necktie during sex. Morris did so, and Castillo collapsed and never regained
consciousness. Morris kept Castillo’s body in his camper for approximately five days
before it was discovered. He claimed that he had not been in the camper during the three
days before the body’s discovery.
Dr. Horn, who performed Castillo’s autopsy, determined that Castillo had been dead
“between three and seven” days at the time the body was found. Based on information
from the detectives, Dr. Horn determined that the cause of death was “probable ligature
strangulation.” Because of the extensive decomposition, there was no visible evidence of
trauma. Castillo had a blood alcohol content of 0.12, and also had traces of cocaine in her
system. Additionally, seven defects measuring up to three-eighths of an inch radiated
around Castillo’s anus. Dr. Horn could not determine whether the defects resulted from
trauma or normal decomposition.
Indictment and Trial
A grand jury indicted Morris on five counts of first degree murder. During the guilt
phase of the trial, the prosecution played videotapes of Morris’s description of each
woman’s death. After the prosecution rested, Morris moved for a directed verdict on all
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counts. The judge denied the motion. Morris chose not to testify and presented no defense.
The jury found Morris guilty on all five counts.5
At the aggravation phase, the prosecutor presented evidence in support of the
“especially cruel, heinous, or depraved” aggravating factor. See A.R.S. § 13-703(F)(6)
(Supp. 2004).6 With respect to the especially cruel prong, Dr. Keen testified that
strangulation victims are conscious for at least a short period and experience pain before
they lose consciousness. With respect to the heinous and depraved prong, the prosecutor
argued that Morris kept the bodies after they began to decompose because he enjoyed the
odor of decomposition. He also argued that Morris had sexual intercourse with all of the
corpses except for Davis’s. The prosecutor focused on the selective skin slippage on the
bodies and the presence of semen on some of the victims despite Morris’s insistence that
he used condoms during sex.
The jury found that Morris committed all five murders in both an “especially cruel”
and “especially heinous or depraved” manner. For all victims, the jury found that Morris
relished the murders and inflicted gratuitous violence on the victims beyond that necessary
to kill. (RT 7/13/05 at 9–15.) For all victims except Velasquez, the jury found that Morris
needlessly mutilated the bodies. (Id.) The jury also found that Morris had convictions for
prior serious offenses, A.R.S. § 13-703(F)(2), based on the five convictions from the guilt
phase of the trial.
5 The Maricopa County Public Defender’s Office was appointed to represent Morris
initially but had to withdraw because of their prior representation of one of the victims.
(ROA 2.) James Logan of the Maricopa County Office of the Legal Advocate was then
appointed (ROA 4), with Maria Schaffer as his second chair counsel; she was replaced by
Randall Craig in 2004. (RT 03/24/15 at 78–79; see ROA 72.) Linda Thomas was the
assigned mitigation specialist. (PCR Pet. Ex. D.)
6 A.R.S. § 13-703, et seq., has since been renumbered as A.R.S. § 13-751, et seq.
The Court refers to the statute in effect at the time of the state court decision.
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In the penalty phase, Morris’s mitigation evidence focused on the responsibilities
placed on him at a young age; his problems with his appearance and hygiene, particularly
his problems with body odor; his desire to improve himself; and his good work record. He
also presented evidence that there was no father figure in his home, that he was not violent
and was nicknamed “Teddy Bear” in high school, and that he was very dependable and
enthusiastic about the ROTC program in which he was active in high school. (RT 7/14/05,
7/18/05.) Morris did not present any expert testimony.
The jury determined that Morris’s mitigation evidence was not sufficiently
substantial to call for leniency and that death was the appropriate sentence for each of the
five murders.
Direct Appeal7
Appellate counsel raised four case-specific claims: (1) the trial court abused its
discretion by denying Morris’s motion to dismiss the counts involving Codman and Davis
because the State was unable to establish corpus delicti without Morris’s statements; (2) the
trial court abused its discretion and erred by violating Morris’s right to be present at all
critical stages when it allowed the jury commissioner to prescreen prospective jurors
outside his and his counsel’s presence, which also resulted in a jury not representative of a
fair cross-section of the community; (3) there was persistent and pervasive prosecutorial
misconduct, and the cumulative effect shows it was intentional with specific intent to
prejudice Morris; and (4) the trial court abused its discretion by allowing the State to
introduce excessively gruesome pictures throughout trial. (See DA 29 (Opening Brief).)
Morris also raised fourteen claims called “issues raised to avoid preclusion.” (Id.)
The Arizona Supreme Court denied relief on all claims and affirmed the convictions
and sentences. Morris, 215 Ariz. at 343, 160 P.3d at 222. Morris then pursued post-
7 Deputy Legal Advocate Consuelo Ohanesian was assigned to represent Morris in
his direct appeal. (DA 21.)
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conviction relief (“PCR”).8 (See ROA 307.) The PCR court denied his claims (see ROA
354, 438, 491) and, on March 14, 2017, the Arizona Supreme Court summarily denied
Morris’s petition for review. (See PR 7, 27.)
In 2017, Morris filed a notice of intent to pursue habeas relief in this Court. (Doc.
1.) The Court appointed the Federal Public Defender for the District of Arizona to
represent him. (Doc. 5.) Morris filed his Petition in February 2018 (Doc. 21), and a notice
of request for evidentiary development in December 2018 (Doc. 43). On April 25, 2019,
the Court denied Morris’s motion to amend his Petition with several additional claims.
(Doc. 63.) On May 19, 2023, the Court denied Morris’s motion to stay and hold the Petition
in abeyance and denied Claim 13 of his Petition (Doc. 84), and subsequently denied
Morris’s motion for reconsideration on June 20, 2024 (Doc. 91). On March 18, 2024,
Morris filed a notice of supplemental authority in support of three claims in his Petition.
(Doc. 86.)
II. APPLICABLE LAW
Federal habeas claims are analyzed under the framework of the Antiterrorism and
Effective Death Penalty Act (“AEDPA”).9 AEDPA defines the substantive and procedural
limits on the claims a capital habeas petitioner may bring, and the Rules Governing Section
2254 Cases define the types of evidentiary development a petitioner may seek if his claims
otherwise meet the requirements of AEDPA.
8 The Arizona Supreme Court appointed Nicole Farnum to represent Morris in the
state proceedings. (DA 52.) Later, after a conflict arose, the court appointed Harvey
Kurlander to replace Farnum. (ROA 419; DA 57.)
9 Morris’s challenge to the constitutionality of AEDPA (Doc. 21 at 68–69) is
meritless. See Crater v. Galaza, 491 F.3d 1119, 1125–26 (9th Cir. 2007) (holding that
AEDPA violates neither the Suspension Clause nor the separation of powers doctrine); cf.
Smith v. Thornell, No. CV-12-00318-PHX-ROS, 2025 WL 563453, at *6 (D. Ariz. Feb.
20, 2025) (citing cases upholding constitutionality of AEDPA).
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A. Principles of Exhaustion and Procedural Default
Exhaustion
A writ of habeas corpus cannot be granted unless the petitioner has exhausted all
available state court remedies. 28 U.S.C. § 2254(b)(1); see also Coleman v. Thompson,
501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509 (1982). 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);
Picard v. Connor, 404 U.S. 270, 277–78 (1971). A petitioner must clearly alert the state
court that he is alleging a specific federal constitutional violation. See Casey v. Moore,
386 F.3d 896, 913 (9th Cir. 2004). A petitioner must make the federal basis of the claim
explicit either by citing specific provisions of federal law or federal case 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, 319 F.3d at 1158 (9th Cir. 2003) (en banc). A general claim raised in state court
cannot exhaust a new specific argument raised in federal habeas. Atkins v. Bean, 122 F.4th
760, 782 (9th Cir. 2024).
In Arizona, there are two avenues for petitioners to exhaust federal constitutional
claims: direct appeal and PCR proceedings. Arizona’s procedural-default rule precludes
any post-conviction claim “waived at trial or on appeal, or in any previous post-conviction
proceeding, except when the claim raises a violation of a constitutional right that can only
be waived knowingly, voluntarily, and personally by the defendant.” Ariz. R. Crim. P.
(“Rule”) 32.2(a)(3). “[A]ll known claims for relief [must be raised] in a single petition to
prevent endless trial-court reviews of the same case.” State v. Anderson, 257 Ariz. 226,
231, 547 P.3d 345, 350 (2024). The preclusive effect of Rule 32.2(a) may be avoided only
if a claim falls within certain exceptions and the petitioner can justify his omission of the
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claim from a prior petition or his failure to present the claim in a timely manner. See Ariz.
R. Crim. P. 32.1(b)–(h), 32.2(b), 32.4(b)(3).
Under Arizona law, collateral review proceedings are the first point at which an
ineffective assistance of counsel claim may be presented for review. State v. Spreitz, 202
Ariz. 1, 3, 39 P.3d 525, 527 (2002). However, “the ground of ineffective assistance of
counsel cannot be raised repeatedly” in state court. Anderson, 257 Ariz. at 231, 547 P.3d
at 350 (quoting Stewart v. Smith, 202 Ariz. 446, 450, 46 P.3d 1067, 1071 (2002)).
Generally, where an ineffective assistance claim was raised or could have been raised in a
previous Rule 32 PCR proceeding, “subsequent claims of ineffective assistance will be
deemed waived and precluded.” Id. (quoting Spreitz, 202 Ariz. at 2, 39 P.3d at 526); see
Ariz. R. Crim. P. 32.2(a)(3).
The Arizona Supreme Court recently explained that whether a defendant must
personally waive an ineffective assistance claim to warrant preclusion under Rule
32.2(a)(3) depends on the particular right implicated by the allegedly ineffective
representation. State v. Traverso, —Ariz. ––, 576 P.3d 97, 104–05 (2025).
The right to counsel, to a jury trial, and to a twelve-person jury have been identified
as belonging to the narrow category of rights that are of sufficient constitutional magnitude
to require a defendant’s knowing, voluntary, and personal waiver. Id.
Procedural Default
A habeas petitioner’s claims may be precluded from federal review in two ways.
First, a claim may be procedurally defaulted in federal court if it was raised in state court
but found by that court to be defaulted on state procedural grounds. Coleman, 501 U.S. at
729–30. Such claims will be found procedurally defaulted in federal court so long as the
state procedural bar was independent of federal law and adequate to warrant preclusion of
federal review. See Harris v. Reed, 489 U.S. 255, 262 (1989). Contrary to Morris’s
assertion, it is well established that Arizona’s preclusion rule is independent of federal law,
see Stewart v. Smith, 536 U.S. 856, 860 (2002), and the Ninth Circuit has repeatedly
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determined that Arizona regularly and consistently applies its procedural default rules such
that they are an adequate bar to federal review of a claim. See Hurles v. Ryan, 752 F.3d
768, 780 (9th Cir. 2014) (Arizona’s waiver rules are independent and adequate bases for
denying relief); Ortiz v. Stewart, 149 F.3d 923, 932 (9th Cir. 1998), overruled on other
grounds by Martinez v. Ryan, 566 U.S. 1 (2012) (Rule 32.2(a)(3) regularly followed and
adequate); Poland v. Stewart, 117 F.3d 1094, 1106 (9th Cir. 1997) (finding Arizona not
“irregular” in application of procedural default rules); Martinez-Villareal v. Lewis, 80 F.3d
1301, 1306 (9th Cir. 1996) (same).10
Second, a claim may be procedurally defaulted if the petitioner failed to present it
in state court and “the court to which the petitioner would be required to present his claims
in order to meet the exhaustion requirement would now find the claims procedurally
barred.” Coleman, 501 U.S. at 735 n.1; see also Ortiz, 149 F.3d at 931 (explaining district
court must consider whether the claim could be pursued by any presently available state
remedy). The latter form of preclusion is referred to as “technical exhaustion.” See
Coleman, 501 U.S. at 732 (“A habeas petitioner who has defaulted his federal claims in
state court meets the technical requirements for exhaustion; there are no state remedies any
longer ‘available’ to him.”); Smith v. Baldwin, 510 F.3d 1127, 1139 (9th Cir. 2007)
(observing that if state court where petitioner would be required to present the claims would
find the claims procedurally barred, petitioner has technically exhausted the claims through
procedural default). Therefore, in the present case, if there are claims that were not raised
in state court, the Court must determine whether Morris has state remedies currently
10 Morris asserts throughout his petition that “any procedural bar is not adequate or
independent” and “that imposing default would be a miscarriage of justice.” (See e.g.,
Doc. 21 at 107, 177.) In addition to being meritless, these arguments are waived, as they
are mentioned in his petition only in passing and unsupported by legal argument. See
United States v. Stoterau, 524 F.3d 988, 1003 n.7 (9th Cir. 2008) (finding general
contentions mentioned only in passing, and unsupported by meaningful argument, were
waived).
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available to him pursuant to Rule 32. See Ortiz, 149 F.3d at 931. If he does not, then his
claims are “technically” exhausted but procedurally defaulted. Coleman, 501 U.S. at 732,
735 n.1.
Because the doctrine of procedural default is based on comity, not jurisdiction,
federal courts retain the power to consider the merits of procedurally defaulted claims.
Reed v. Ross, 468 U.S. 1, 9 (1984). As a general matter, the Court will not review the
merits of a procedurally defaulted claim unless the petitioner demonstrates legitimate cause
for his failure to exhaust the claim in state court and prejudice from the alleged
constitutional violation, or shows that a fundamental miscarriage of justice would result if
the claim were not heard on the merits in federal court. Coleman, 501 U.S. at 750.
“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); accord Coleman,
501 U.S. at 753. “Prejudice” is actual harm resulting from the alleged constitutional errors.
Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998). “The petitioner can meet the
prejudice prong if he demonstrates ‘that the errors . . . worked to his actual and substantial
disadvantage, infecting his entire [proceeding] with errors of constitutional dimension.’”
Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011) (quoting White v. Lewis, 874 F.2d 599,
603 (9th Cir. 1989)). “A petitioner can demonstrate a fundamental miscarriage of justice
by ‘establish[ing] that under the probative evidence he has a colorable claim of factual
innocence.’” Id. (quoting Sawyer v. Whitley, 505 U.S. 333, 339 (1992)).
Because the acts of a petitioner’s counsel are not external to the defense, they are
generally attributable to the petitioner, and negligence, ignorance, or inadvertence on
counsel’s part does not qualify as “cause.” Coleman, 501 U.S. at 752–54 (citing Carrier,
477 U.S. at 488). However, where the ineffective assistance of counsel amounts to an
independent constitutional violation, it can establish cause. Id. at 753–54; Ortiz, 149 F.3d
at 932.
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Ineffective assistance of appellate counsel may be used as cause to excuse a
procedural default only where the particular ineffective assistance allegation was first
exhausted in state court as an independent constitutional claim. See Edwards v. Carpenter,
529 U.S. 446, 453 (2000) (“an ineffective-assistance-of-counsel claim asserted as cause for
the procedural default of another claim can itself be procedurally defaulted”); Carrier, 477
U.S. at 489–90.
In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court recognized that
ineffective assistance by PCR counsel can establish cause to excuse the procedural default
of a claim of ineffective assistance of trial counsel. Leeds v. Russell, 75 F.4th 1009, 1016
(9th Cir. 2023) (citing Martinez, 566 U.S. at 11–12, 14; Shinn v. Ramirez (Ramirez), 596
U.S. 366, 380 (2022)). A petitioner may establish cause for the procedural default of an
ineffective assistance of trial counsel claim by showing that PCR counsel was ineffective
under the standards of Strickland v. Washington, 466 U.S. 668 (1984) – that is, “(a) post-
conviction counsel’s performance was deficient, and (b) there was a reasonable probability
that, absent the deficient performance, the result of the post-conviction proceedings would
have been different.” 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) (en banc)).11
11 Morris alleges, throughout the petition, that he will demonstrate PCR counsel’s
ineffectiveness at an evidentiary hearing. (See e.g., Doc. 21 at 106–07, 177.) These
unsupported allegations, without more, are insufficient to establish cause and prejudice or
to warrant an evidentiary hearing. A prisoner bears the burden of pleading and proving
cause and prejudice to excuse a procedural default. See Carpenter, 529 U.S. at 451 (“We
therefore require a prisoner to demonstrate cause for his state-court default of any federal
claim, and prejudice therefrom, before the federal habeas court will consider the merits of
that claim.”); Martinez, 566 U.S. at 14 (in order to excuse a defaulted claim under Martinez,
a petitioner must “demonstrate that the underlying ineffective-assistance-of-trial-counsel
claim is a substantial one, which is to say that the prisoner must demonstrate that the claim
has some merit”); Cook v. Ryan, 688 F.3d 598, 610−12 (9th Cir. 2012) (“When faced with
the question whether there is cause [under Martinez] for an apparent default, a State may
answer that the ineffective-assistance-of-trial-counsel claim is insubstantial, i.e., it does not
have any merit or that it is wholly without factual support . . . .”) (quoting Martinez, 566
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To establish “prejudice” under the second prong of Martinez’s “cause and
prejudice” analysis, a petitioner must demonstrate that his underlying ineffective assistance
of trial counsel claim is “substantial.” Id. The Supreme Court defines a “substantial” claim
as one that “has some merit” – the procedural default of a claim will not be excused if the
underlying ineffective assistance of counsel (“IAC”) claim “is insubstantial, i.e., it does
not have any merit or . . . it is wholly without factual support.” Martinez, 566 U.S. at 14–
16. The standard for finding a claim “substantial” is analogous to the standard for issuing
a certificate of appealability. Id. at 14; see Detrich v. Ryan, 740 F.3d 1237, 1245 (9th Cir.
2013), overruled in part on other grounds by Ramirez, 596 U.S. 366. Under that standard,
a claim is “substantial” if “reasonable jurists could debate whether . . . the petition should
have been resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Id. (quoting Miller-El v. Cockrell (Miller El-
I), 537 U.S. 322, 336 (2003)). “[T]he standard for evaluating the underlying trial counsel
IAC claim during the Martinez prejudice analysis is not as stringent as that required when
considering the merits of the underlying claim.” Leeds, 75 F.4th at 1017 (quoting Michaels
v. Davis, 51 F.4th 904, 930 (9th Cir. 2022)).
Courts may analyze cause and prejudice in any order. The two factors are distinct,
but there is considerable overlap since each “considers the strength and validity of the
underlying ineffective assistance claim.” Id. (citing Michaels, 51 F.4th at 931, Dickenson
v. Smith, 2 F.4th 851, 853 n.3 (9th Cir. 2021)).
The Ninth Circuit has offered guidance for assessing whether “cause” exists under
Martinez. In Atwood, for example, the court explained:
In evaluating whether the failure to raise a substantial claim of ineffective
assistance of trial counsel in state court resulted from ineffective assistance
U.S. at 16); Reed v. Stephens, 739 F.3d 753, 781 n.20 (5th Cir. 2014) (“We decline
[Petitioner]’s suggestion that his procedurally defaulted claims may be considered under
Martinez. [Petitioner] has insufficiently briefed this issue, and we consider this argument
waived.”).
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of state habeas counsel under Strickland, we must evaluate the strength of
the prisoner’s underlying ineffective assistance of trial counsel claim. If the
ineffective assistance of trial counsel claim lacks merit, then the state habeas
counsel would not have been deficient for failing to raise it. Further, any
deficient performance by state habeas counsel would not have been
prejudicial, because there would not be a reasonable probability that the
result of the post-conviction proceedings would have been different if the
meritless claim had been raised.
870 F.3d at 1059–60. Although trial counsel’s actions are reviewed under “a more relaxed
standard,” the Strickland standard is applied with “full force when considering [PCR
counsel’s] actions in the Martinez cause analysis.” Leeds, 75 F.4th at 1022 (citing
Clabourne, 745 F.3d at 377); see Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012)
(explaining that if the underlying IAC claim were meritless, PCR counsel “would not be
ineffective for failure to raise an [IAC] claim with respect to trial counsel who was not
constitutionally ineffective”).
The Martinez exception to procedural default applies only to claims of ineffective
assistance of trial counsel. It has not been expanded to other types of claims. Martinez
(Ernesto) v. Ryan, 926 F.3d 1215, 1225 (9th Cir. 2019) (“[I]neffective assistance of PCR
counsel can constitute cause only to overcome procedurally defaulted claims of ineffective
assistance of trial counsel.”); Pizzuto v. Ramirez, 783 F.3d 1171, 1177 (9th Cir. 2015)
(explaining that the Ninth Circuit has “not allowed petitioners to substantially expand the
scope of Martinez beyond the circumstances present in Martinez”); Hunton v. Sinclair, 732
F.3d 1124, 1126–27 (9th Cir. 2013) (noting that only the Supreme Court can expand the
application of Martinez to other areas); see Davila v. Davis, 582 U.S. 521, 524–25, 529–
30 (2017) (holding that the Martinez exception does not apply to claims of ineffective
assistance of appellate counsel).
Alternatively, a petitioner may be able to overcome a procedural default by
establishing that a fundamental miscarriage of justice occurred. A fundamental
miscarriage occurs where the petitioner makes a sufficient showing of actual innocence.
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See Schlup v. Delo, 513 U.S. 298, 316 (1995) (“[I]f a petitioner . . . presents evidence of
innocence so strong that a court cannot have confidence in the outcome of the trial unless
the court is also satisfied that the trial was free of nonharmless constitutional error, the
petitioner should be allowed to pass through the gateway and argue the merits of his
underlying claims.”). “In Schlup, the Court . . . held that prisoners asserting innocence as
a gateway to defaulted claims must establish that, in light of new evidence, ‘it is more likely
than not that no reasonable juror would have found petitioner guilty beyond a reasonable
doubt.’” House v. Bell, 547 U.S. 518, 536–37 (2006) (quoting Schlup, 513 U.S. at 327).
To revive a claim under Schlup, a petitioner’s claim of innocence must be “truly
extraordinary.” Id.12
Finally, a federal habeas court may reject a claim on the merits without reaching the
question of exhaustion. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas
corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust
the remedies available in the courts of the State.”); Rhines v. Weber, 544 U.S. 269, 277
(2005) (a stay is inappropriate in federal court to allow claims to be raised in state court if
they are subject to dismissal under § 2254(b)(2) as “plainly meritless”); Cassett v. Stewart,
406 F.3d 614, 623–24 (9th Cir. 2005) (holding that a federal court may deny an
unexhausted petition on the merits when the petition does not raise a colorable federal
claim).
B. Merits review under AEDPA
AEDPA authorizes federal courts to grant writs of habeas corpus to state prisoners
only in cases of “extreme malfunctions in the state criminal justice systems.” Ramirez, 596
12 Morris alleges throughout this petition that imposing a procedural default on any of his
claims would be a miscarriage of justice. (See, e.g., Doc. 21 at 177.) These bare
allegations, without more, are insufficient to show a fundamental miscarriage of justice.
See Schlup, 513 U.S. at 327 (in order to excuse a procedural default through the miscarriage
of justice doctrine, a “petitioner must show that it is more likely than not that no reasonable
juror would have convicted him in the light of [his newly proffered] evidence”).
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U.S. at 377. A petitioner is not entitled to habeas relief on any claim adjudicated on the
merits in state court unless the state court’s adjudication (1) resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly-established federal law, 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).
“Clearly-established federal law” refers to the holdings, as opposed to dicta, of
Supreme Court decisions at the time of the relevant state court decision. Williams v. Taylor
(Terry Williams), 529 U.S. 362, 412 (2000). “‘[I]f a habeas court must extend a rationale
before it can apply to the facts at hand,” then by definition the rationale was not ‘clearly
established at the time of the state-court decision.’” White v. Woodall, 572 U.S. 415, 426
(2014) (quoting Yarborough v. Alvarado, 541 U.S. 652, 666 (2004)).
“[C]ircuit precedent does not constitute ‘clearly established Federal law’” and
“cannot form the basis for habeas relief under AEDPA.” Parker v. Matthews, 567 U.S. 37,
48–49 (2012); see Carey v. Musladin, 549 U.S. 70, 76–77 (2006). A reviewing court may,
however, “look to circuit precedent to ascertain whether it has already held that the
particular point in issue is clearly established by Supreme Court precedent.” Marshall v.
Rodgers, 569 U.S. 58, 64 (2013).
“In determining whether a state court decision is contrary to federal law, we look to
the state’s last reasoned decision . . . as the basis for its judgment.” Dickey v. Davis, 69
F.4th 624, 635 (9th Cir. 2023) (quoting Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002));
see Wilson v. Sellers, 584 U.S. 122, 125 (2018) (“[When the relevant state-court decision
on the merits . . . does not come accompanied with . . . reasons . . . the federal court should
‘look through’ the unexplained decision to the last related state-court decision that does
provide a relevant rationale . . . and presume that the unexplained decision adopted the
same reasoning.”).
“When there is no reasoned state-court decision addressing a habeas claim, there is
a rebuttable presumption that the state court adjudicated the claim on the merits.” Id.
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(citing Harrington v. Richter, 562 U.S. 86, 99–100 (2011)). “In that circumstance, federal
courts must consider what arguments could have supported the state court’s decision and
then ask whether it is possible fairminded jurists could disagree that those arguments or
theories are inconsistent with a prior Supreme Court holding.” Id. (citing Richter, 562
U.S. at 102).
If a claim was not adjudicated on the merits in state court and is not otherwise
foreclosed, the Court reviews the claim de novo without the deference required by
§ 2254(d). See Cone v. Bell, 556 U.S. 449, 472 (2009).
Contrary To/Unreasonable Application of Clearly Established Federal Law
A state court decision is “contrary to” clearly established federal law 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 decision
of the Supreme Court but reaches a different result. Terry Williams, 529 U.S. at 405–06;
see, e.g., Hooper, 985 F.3d at 614. Under the “unreasonable application” prong of
§ 2254(d)(1), a federal court may grant habeas relief where a state court “identifies the
correct governing legal rule from [the Supreme] Court’s cases but unreasonably applies it
to the facts of the particular . . . case” or “unreasonably extends a legal principle from
[Supreme Court] precedent to a new context where it should not apply.” Id. at 407; see,
e.g., Murray v. Schriro (Robert Murray), 745 F.3d 984, 997 (9th Cir. 2014). The burden
rests with the habeas applicant to show that the state court applied clearly established
Supreme Court precedent in an objectively unreasonable manner. Woodford v. Visciotti,
537 U.S. 19, 25 (2002).
The Supreme Court has emphasized that “an unreasonable application of federal
law is different from an incorrect application of federal law.” Id. To be an unreasonable
application, “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.
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Donald, 575 U.S. 312, 316 (2015) (per curiam)); see Shinn v. Kayer, 592 U.S. 111, 118
(2020); Bolin v. Davis, 13 F.4th 797, 805 (9th Cir. 2021). The burden is on the petitioner
to show “there was no reasonable basis for the state court to deny relief.” Richter, 562 U.S.
at 98. This standard is “difficult to meet.” Kayer, 592 U.S. at 118 (quoting Richter, 562
U.S. at 102).
Unreasonable Determination of the Facts
“[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. Dretke (Miller-
El II), 545 U.S. 231, 340 (2005). 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; 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”). The Supreme Court has not defined the precise
relationship between § 2254(d)(2) and § 2254(e)(1), but has clarified “that a state-court
factual determination is not unreasonable merely because the federal habeas court would
have reached a different conclusion in the first instance.” Burt v. Titlow, 571 U.S. 12, 18
(2013) (citing Wood, 558 U.S. at 293, 301); see also Ayala v. Chappell, 829 F.3d 1081,
1094 (9th Cir. 2016) (“factual findings are unreasonable if ‘reasonable minds reviewing
the record’ could not agree with them”) (quoting Brumfield, 576 U.S. at 314).
Brecht/Harmless error
If “a state court determines that an error at trial did not prejudice a criminal
defendant,” then a federal court cannot grant relief without first applying both the test the
Supreme Court outlined in Brecht v. Abrahamson, 507 U.S. 619 (1993), and the one
Congress prescribed in AEDPA. Brown v. Davenport, 596 U.S. 118, 122 (2022). The
Brecht test requires a petitioner to “show that the error had a ‘substantial and injurious
effect or influence’ on the outcome of his trial.” Brown, 596 U.S. at 126 (quoting Brecht,
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507 U.S. at 637). A federal court must apply Brecht’s standard even if the state court did
not conduct a harmless-error analysis. Bains v. Cambra, 204 F.3d 964, 977–78 (9th Cir.
2000). And if the state court did conduct a harmless-error analysis, a prisoner can only
obtain relief if that determination was unreasonable. Davis v. Ayala, 576 U.S. 257, 268
(2015).
The Brecht standard does not apply to constitutional errors that are structural
defects, or to claims under Brady v. Maryland, 373 U.S. 83 (1963), or Strickland. See
Kyles v. Whitley, 514 U.S. 419, 436 (1995) (explaining that a showing of prejudice that
satisfies Brady “cannot subsequently be found harmless under Brecht”); Musladin v.
Lamarque, 555 F.3d 830, 834 (9th Cir. 2009) (“[W]here a habeas petition governed by
AEDPA alleges ineffective assistance of counsel . . . , we apply Strickland’s prejudice
standard and do not engage in a separate analysis applying the Brecht standard.”).
C. Evidentiary Development
“Although state prisoners may sometimes submit new evidence in federal court,
AEDPA’s statutory scheme is designed to strongly discourage them from doing so.
Provisions like §§ 2254(d)(1) and (e)(2) ensure that ‘[f]ederal courts sitting in habeas are
not an alternative forum for trying facts and issues which a prisoner made insufficient effort
to pursue in state proceedings.’” Cullen v. Pinholster, 563 U.S. 170, 186 (2011) (quoting
Williams v. Taylor (Michael Williams), 529 U.S. 420, 437 (2000)).
Under the Rules Governing Section 2254 Cases, a petitioner may seek to discover
and introduce additional evidence in federal court. The court’s discretion to grant such
requests, however, is limited. “[R]eview 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 Robert Murray, 745 F.3d at 998 (“Along with the significant deference AEDPA
requires us to afford state courts’ decisions, AEDPA also restricts the scope of the evidence
that we can rely on in the normal course of discharging our responsibilities under
§ 2254(d)(1).”). The Ninth Circuit has observed that “Pinholster and the statutory text
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make clear that this evidentiary limitation is applicable to § 2254(d)(2) claims as well.”
Gulbrandson v. Ryan, 738 F.3d 976, 993 n.6 (9th Cir. 2013) (citing § 2254(d)(2) and
Pinholster, 563 U.S. at 185 n.7). “AEDPA . . . restricts the ability of a federal habeas court
to develop and consider new evidence, limiting review of factual determinations under
§ 2254(d)(2) to ‘the evidence presented in the State court proceeding.’ . . . ” Shoop v.
Twyford, 596 U.S. 811, 819 (2022). “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; see also Robert Murray,
745 F.3d at 1000 (“After Pinholster, a federal habeas court may consider new evidence
only on de novo review, subject to the limitations of § 2254(e)(2).”)
Pinholster does not, however, bar evidentiary development where the court has
determined, based solely on the state court record, that the petitioner “has cleared the
§ 2254(d) hurdle.” Madison v. Comm’r, Ala. Dep’t of Corr., 761 F.3d 1240, 1249–50 (11th
Cir. 2014); see Pinholster, 563 U.S. at 185; Henry v. Ryan, 720 F.3d 1073, 1093 n.15 (9th
Cir. 2013). A petitioner who meets the deferential standards of § 2254(d) may be entitled
to evidentiary development if the following standards are also met.
First, a habeas petitioner is not entitled to discovery “as a matter of ordinary course.”
Bracy v. Gramley, 520 U.S. 899, 904 (1997); see Campbell v. Blodgett, 982 F.2d 1356,
1358 (9th Cir. 1993). Rule 6 of the Rules Governing Section 2254 Cases provides that “[a]
judge may, for good cause, authorize a party to conduct discovery under the Federal Rules
of Civil Procedure and may limit the extent of discovery.” Rule 6(a), Rules Governing
§ 2254 Cases, 28 U.S.C. foll. § 2254.
Second, if a prisoner “has failed to develop the factual basis of [the] claim in State
court proceedings,” 28 U.S.C. § 2254(e)(2), either through “lack of diligence, or some
greater fault, attributable to the prisoner or the prisoner’s counsel,” Michael Williams, 529
U.S. at 432, a district court may not conduct an evidentiary hearing or otherwise allow
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further evidentiary development of a claim unless the prisoner demonstrates that his
conviction either rests on a retroactively-applicable new constitutional rule or a newly-
discovered factual predicate, and that he is actually innocent. See 28 U.S.C. § 2254(e)(2);
Michael Williams, 529 U.S. at 429–30. With respect to claims that were not adjudicated
on the merits, “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” unless the stringent requirements of § 2254(e)(2) are met.
Ramirez, 596 U.S. at 382.13
Additionally, an evidentiary hearing is not required if the issues can be resolved by
reference to the state court record. Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998)
(“It is axiomatic that when issues can be resolved with reference to the state court record,
an evidentiary hearing becomes nothing more than a futile exercise.”); see also Schriro v.
Landrigan, 550 U.S. 465, 474 (2007) (“[I]f the record refutes the applicant’s factual
allegations or otherwise precludes habeas relief, a district court is not required to hold an
evidentiary hearing.”). Likewise, “an evidentiary hearing is not required if the claim
presents a purely legal question and there are no disputed facts.” Beardslee v. Woodford,
358 F.3d 560, 585 (9th Cir. 2004); see Hendricks v. Vasquez, 974 F.2d 1099, 1103 (9th
Cir. 1992).
Finally, under Rule 7 of the Rules Governing Section 2254 Cases, a federal habeas
court is authorized to expand the record to include additional material relevant to the
petition. The purpose of expansion of the record under Rule 7 “is to enable the judge to
dispose of some habeas petitions not dismissed on the pleadings, without the time and
13 “Thus, if [§ 2254(e)(2)] applies and the prisoner cannot satisfy its ‘stringent
requirements,’. . . a federal court may not hold an evidentiary hearing – or otherwise
consider new evidence – to assess cause and prejudice under Martinez.” Ramirez, 596 U.S.
at 389 (internal citation omitted). A petitioner must allege facts which, if true, would entitle
him to relief, in order to be entitled to an evidentiary hearing on cause and prejudice. Id.
at 389–90 (citing Landrigan, 550 U.S. at 474).
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expense required for an evidentiary hearing.” Advisory Committee Notes, Rule 7, 28
U.S.C. foll. § 2254; see also Blackledge v. Allison, 431 U.S. 63, 81–82 (1977); Downs v.
Hoyt, 232 F.3d 1031, 1041 (9th Cir. 2000) (explaining that the need for an evidentiary
hearing may be obviated by expansion of record).
D. Ineffective assistance of counsel
IAC claims are governed by the principles set forth in Strickland, 466 U.S. 668. To
prevail under Strickland, a petitioner must show that counsel’s representation fell below an
objective standard of reasonableness and that the deficiency prejudiced the defense. Id. at
687–88. The inquiry under Strickland is highly deferential. “A fair assessment of attorney
performance requires that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time.” Id. at 689; see Padilla v.
Kentucky, 559 U.S. 356, 371 (2010) (“Surmounting Strickland’s high bar is never an easy
task.”). The “standard is necessarily a general one,” Bobby v. Van Hook, 558 U.S. 4, 7
(2009), because “[n]o particular set of detailed rules for counsel’s conduct can satisfactorily
take account of the variety of circumstances faced by defense counsel or the range of
legitimate decisions regarding how best to represent a criminal defendant.” Strickland, 466
U.S. at 688–89.
To satisfy Strickland’s first prong, a defendant “must overcome the presumption
that, under the circumstances, the challenged action ‘might be considered sound trial
strategy.’” Id. at 689. Deficient performance “requires 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. “The question is whether an attorney’s representation
amounted to incompetence under ‘prevailing professional norms,’ not whether it deviated
from best practices or most common custom.” Richter, 562 U.S. at 105 (quoting
Strickland, 466 U.S. at 690). “The defendant bears the heavy burden of proving that
counsel’s assistance was neither reasonable nor the result of sound trial strategy.”
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Murtishaw v. Woodford, 255 F.3d 926, 939 (9th Cir. 2001) (citing Strickland, 466 U.S. at
689). “[T]he relevant inquiry . . . is not what defense counsel could have pursued, but
rather whether the choices made by defense counsel were reasonable.” Robert Murray,
745 F.3d at 1011 (quoting Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998)).
Ultimately, “it is difficult to establish ineffective assistance when counsel’s overall
performance indicates active and capable advocacy.” Richter, 562 U.S. at 111. Even under
de novo review, the standard for judging counsel’s representation is a deferential one.
Richter, 562 U.S. at 105.
Under Strickland’s second prong, a petitioner must affirmatively prove prejudice 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 petitioner
“bears the highly demanding and heavy burden [of] establishing actual prejudice.” Allen
v. Woodford, 395 F.3d 979, 1000 (9th Cir. 2005) (quoting Terry Williams, 529 U.S. at 394).
“The likelihood of a different result must be substantial, not just conceivable.” Richter,
562 U.S. at 112 (citing Strickland, 466 U.S. at 693); see Hooper, 985 F.3d at 628. The
strength of the prosecution’s case 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.”).
A court need not address both Strickland prongs. Id. at 697. If it is easier to dispose
of a claim on just one of the components, then that course should be taken. Id.
When the standards created by Strickland and § 2254(d) both apply, review is
“doubly” deferential. Richter, 562 U.S. at 105 (citations and quotations omitted). “[T]he
question is not whether counsel’s actions were reasonable . . . [but] whether there is any
reasonable argument that counsel satisfied Strickland’s deferential standard.” Id. “[E]ven
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when a court is presented with an ineffective-assistance claim not subject to § 2254(d)(1)
deference, a defendant must overcome the ‘presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.’” Bell v. Cone, 535 U.S. 685,
698 (2002) (quoting Strickland, 466 U.S. at 689) (internal quotations omitted).
III. DISCUSSION
Morris filed his amended petition for writ of habeas corpus on February 20, 2018.
(Doc. 21.) It is nearly 400 pages long and raises 49 claims for relief, some of which are
unexhausted and several which are comprised of numerous subclaims. (Id.) He seeks
evidentiary development with respect to many of those claims. (Doc. 43.) For the reasons
that follow, Morris’s petition and request for evidentiary development will be denied.
A. Unexhausted Trial Error Claims
Before addressing individual claims, the Court considers Morris’s argument that the
procedural default of several trial error claims can be excused by the ineffective assistance
of both appellate and PCR counsel.
Morris concedes that he has not raised the following claims in state court: 9–10, 17–
20, 23–27, 42–43, and 47. (Doc. 21 at 245, 248, 283, 286, 288, 296, 315, 317, 319, 321,
325, 366, 372, 384.) These claims allege various trial errors. Because they were not raised
in state court and would be precluded if raised in a successive post-conviction petition, they
are technically exhausted and procedurally defaulted. See Ariz. R. Crim. P. 32.2(b);
32.1(b)–(h).
Morris offers a two-step argument for excusing the default of these claims. First,
he contends that appellate counsel rendered ineffective assistance in failing to properly
present them. Second, he argues that PCR counsel’s ineffectiveness excuses the default of
the ineffective assistance of appellate counsel (“IAAC”) claims, allowing this Court to
review the merits of the unpreserved trial error claims de novo. See e.g., (Doc. 34 at 163,
165–66.) Morris acknowledges that the Supreme Court’s holding in Davila is contrary to
his argument, see e.g. (Doc. 21 at 245), but asserts in his Reply that Davila “does not
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automatically impair the ability to show cause and prejudice under Martinez to overcome
the default of claims of ineffective assistance of appellate counsel.” (Doc. 34 at 25.) The
Court disagrees. That is precisely what Davila held.
Davila refused to “extend Martinez to allow a federal court to hear a substantial, but
procedurally defaulted, claim of ineffective assistance of appellate counsel when a
prisoner’s state postconviction counsel provides ineffective assistance by failing to raise
that claim.” 582 U.S. at 525. The Supreme Court explained that Martinez provides no
support, either on its face or in its underlying rationale, for extending its narrow exception
to new categories of procedurally defaulted claims. Id. at 529–30. Additionally, Martinez
was addressing an equitable consideration created by the state’s deliberate choice to move
trial-ineffectiveness claims outside of the direct-appeal process (where counsel is
constitutionally guaranteed) to the PCR process (where counsel is not constitutionally
guaranteed), thus significantly diminishing the prisoner’s ability to file such claims. Id. at
534. Further, Martinez was grounded “in part on the belief that its narrow exception was
unlikely to impose significant costs,” and as Davila noted, “[t]he same cannot be said” of
a proposal to extend the exception to defaulted claims of appellate ineffectiveness. Id. at
535.
Morris argues that the Davila decision was narrow, applying only to the Court’s
consideration of a default by post-conviction counsel of a claim that appellate counsel was
ineffective for not challenging a preserved trial error. (Doc. 34 at 24) (citing Davila, 582
U.S. at 525–26). Morris argues that Davila recognized a primary concern animating
Martinez – that no court will have considered the claim on its merits. (Doc. 34 at 24)
(citing Davila, 582 U.S. at 532). He asserts that Davila considered unpreserved trial errors
and recognized that “it is not categorically true that trial errors will be reviewed by at least
one court when appellate counsel fails to raise them and post-conviction counsel fails to
then raise appellate counsel’s failure.” (Doc. 34 at 24–25) (citing Davila, 582 U.S. at 532–
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33). Morris contends that this concern is still implicated and Davila does not automatically
impair his ability to show cause and prejudice under Martinez to overcome the default of
IAAC claims alleging unpreserved trial error. (Id. at 25.)
The Supreme Court addressed this argument in Davila, specifically considering
whether an exception for claims of ineffective assistance of counsel for failure to raise
unpreserved trial error claims was necessary, and concluded that it was not:
Claims of ineffective assistance of appellate counsel, however, do not pose
the same risk that a trial error – of any kind – will escape review altogether,
at least in a way that could be remedied by petitioner’s proposed rule. This
is true regardless of whether trial counsel preserved the alleged error at trial.
Davila, 582 U.S. at 532.
The Court then explained that if the claim of error was not preserved by trial
counsel’s objection, then the claim was either not strong enough to make out a case of
appellate ineffectiveness or “was so obvious that appellate counsel was constitutionally
required to raise it on appeal.” Id. at 533. In the latter case, “trial counsel likely provided
ineffective assistance by failing to object to [the error] in the first instance,” and “the
prisoner likely could invoke Martinez or Coleman to obtain review of trial counsel’s failure
to object.” Id.
Additionally, Davila addressed and rejected the very proposal Morris asserts:
An expanded Martinez exception, . . . would mean that any defaulted trial
error could result in a new trial. In Carpenter, this Court held that, when a
prisoner can show cause to excuse a defaulted claim of ineffective assistance
of appellate counsel, he can, in turn, rely on that claim as cause to litigate an
underlying claim of trial error that was defaulted due to appellate counsel’s
ineffectiveness. 529 U.S., at 453. . . . Expanding Martinez as petitioner
suggests would thus produce a domino effect: Prisoners could assert their
postconviction counsel’s inadequacy as cause to excuse the default of their
appellate ineffectiveness claims, and use those newly reviewable appellate
ineffectiveness claims as cause to excuse the default of their underlying
claims of trial error. Petitioner’s rule thus could ultimately knock down the
procedural barriers to federal habeas review of nearly any defaulted claim of
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trial error. The scope of that review would exceed anything the Martinez
Court envisioned when it established its narrow exception to Coleman.
Davila, 582 U.S. at 536.
Thus, Claims 9–10, 17–20, 23–27, 42–43, and 47 are technically exhausted but
procedurally defaulted. They are barred from federal review and will be denied.
The Court should note that Morris raises several IATC claims related to these trial
error claims, and the Court applies Martinez below in determining whether the defaulted
IATC claims could be excused. (See upcoming discussion regarding Claims Three (B)(2),
(B)(4); Four (A), (B)(1), (D); Five (D), and Six (B)(1)). In doing so, the Court necessarily
considers to some extent the allegations of trial error underlying the IATC claims. While
this illustrates precisely the point made by the Supreme Court in denying Davila’s request
to extend Martinez to claims other than IATC, see Davila, 582 U.S. at 533, Martinez
remains viable only as a vehicle for excusing IATC claims and no others, including IAAC
claims. See id.; see also Martinez (Ernesto), 926 F.3d at 1225; Pizzuto, 783 F.3d at 1177;
Hunton, 732 F.3d at 1126–27.
B. Claim One
Morris claims that the trial prosecutor engaged in repeated and pervasive
misconduct, violating Morris’s rights under the Fifth, Sixth, Eighth, and Fourteenth
Amendments.14 (Doc. 21 at 70–108.) Specifically, Morris alleges the prosecutor
(1) misstated facts, Claim One (A)(1), and engaged in vouching for witnesses, Claim One
(A)(2); (2) focused on irrelevant and salacious information, including deviant sexuality,
Claim One (B)(1), the victims’ decomposition, Claim One (B)(2), and by introducing an
unfounded element of sexual deviancy into voir dire, Claim One (B)(3); (3) appealed to
the juror’s passions and fear by singling out individual jurors and addressing them
14 Because the parties do not agree on whether Claim One is divisible and, if it is,
how the subclaims should be labeled, the Court applies its own labeling system to the
allegations of prosecutorial misconduct.
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personally, Claim One (C)(1), unpackaging Castillo’s malodorous jacket in court, Claim
One (C)(2), and displaying excluded photographs, Claim One (C)(3); and (4) invoked an
unproved and uncharged aggravating factor, Claim One (D). (Id. at 79–100.) Morris
argues that the effect of these alleged errors, considered both individually and
cumulatively, entitles him to relief. (Id. at 79.) Morris also alleges that trial counsel was
ineffective for failing to object to the prosecutor’s pervasive misconduct, Claim One (E).
(Id. at 106–108.)
Morris did not raise several of these allegations in state court. He argues their
default is excused under Martinez by the ineffective assistance of PCR counsel. (Doc. 34
at 33–34.)
Morris also alleges the state court’s ruling on his prosecutorial misconduct claims,
including a claim of improper influence (designated as Claim One (F)),15 was contrary to
and an unreasonable application of clearly established federal law and based on an
unreasonable determination of facts. (Id. at 100–106.)
Additional Background
On direct appeal, Morris alleged five occasions of prosecutorial misconduct:
(1) “The prosecutor improperly influenced the medical examiners’ opinions
on two of the cases by supplying [Morris]’s statements to the police in an
effort to influence their opinion on the causes of death.”
(2) “There was no basis in fact for the prosecutor’s continuing argument that
Appellant had killed the victims in order to have sexual intercourse with their
corpses.”
(3) “The prosecutor invited the jurors to put themselves in the place of the
victims, asking for volunteers for a demonstration of his theories of how the
victims were killed.”
(4) “The prosecutor told the jurors that he had introduced into evidence a
jacket that had been covering one of the victim’s bodies for their ‘smelling
pleasure.’”
15 This allegation was not separately argued as a claim in his Petition.
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(5) “Throughout the testimony of two police officers on June 15, 2005, the
prosecutor kept an excluded photograph showing maggot infestation on his
desk in full view of the jurors.”
(DA 29 at 51–53.) Morris also alleged that the “cumulative effect of the misconduct . . .
so permeated the entire atmosphere of the trial with unfairness that it denied [him] due
process.” (Id. at 49.)
The Arizona Supreme Court reviewed these claims to determine if “the prosecutor’s
misconduct ‘so infected the trial with unfairness as to make the resulting conviction a
denial of due process.’” Morris, 215 Ariz. at 335, 160 P.3d at 214 (quoting State v. Hughes,
193 Ariz. 72, 79, 969 P.2d 1184, 1191 (1998)).
The Arizona Supreme Court addressed each allegation individually and found that
one incident rose to the level of prosecutorial misconduct – addressing particular jurors
individually and playing on their sympathy for the victims and their fears of the defendant.
But the Supreme Court found the incident did not deny Morris a fair trial or deprive him
of a right essential to his defense. Id. at 337–38, 160 P.3d at 216–17.
The court also rejected Morris’s cumulative-effect argument, concluding that
because he had identified only one instance of misconduct, there was no “persistent and
pervasive” misconduct. Id. at 339, 160 P.3d at 218. Additionally, the court found that “the
challenged remarks by the prosecutor did not prejudice Morris” in light of the
“overwhelming evidence of Morris’s guilt and of the cruelty of the murders.” Id.
Clearly Established Federal Law: Prosecutorial Misconduct
The appropriate standard for federal habeas review of a claim of prosecutorial
misconduct is “the narrow one of due process, and not the broad exercise of supervisory
power.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 642 (1974)). To succeed, a petitioner must prove not only
that the prosecutor’s remarks and other conduct were improper, but also that they “so
infected the trial with unfairness as to make the resulting conviction a denial of due
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process.” Donnelly, 416 U.S. at 643; see Parker, 567 U.S. at 45; Johnson v. Sublett, 63
F.3d 926, 930 (9th Cir. 1995) (explaining that relief is limited to cases in which the
petitioner can establish that prosecutorial misconduct resulted in actual prejudice); see also
Smith v. Phillips, 455 U.S. 209, 219 (1982) (“[T]he touchstone of due process analysis in
cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of
the prosecutor.”).
In determining if a petitioner’s due process rights were violated, the court “must
consider the probable effect [of] the prosecutor’s [remarks] . . . on the jury’s ability to judge
the evidence fairly.” United States v. Young, 470 U.S. 1, 12 (1985). To make such an
assessment, the prosecutor’s remarks must be placed in context. See Boyde v. California,
494 U.S. 370, 385 (1990); United States v. Robinson, 485 U.S. 25, 33–34 (1988); Williams
v. Borg, 139 F.3d 737, 745 (9th Cir. 1998). In Darden, for example, the Court assessed
the fairness of the trial by considering whether the prosecutor’s comments manipulated or
misstated the evidence, whether the trial court gave a curative instruction, and “[t]he weight
of the evidence against petitioner.” 477 U.S. at 181–82; see Trillo v. Biter, 769 F.3d 995,
1001 (9th Cir. 2014).
Even if a petitioner establishes a due process violation, habeas relief is not available
unless the petitioner also shows the violation resulted in a “substantial and injurious” effect
on the verdict under the standard set forth in Brecht, 507 U.S. at 638. Brown, 596 U.S. at
122. Courts have substantial latitude when considering prosecutorial misconduct claims
because “constitutional line drawing [in such cases] is necessarily imprecise.” Donnelly,
416 U.S. at 645; Parker, 567 U.S. at 48 (explaining that the “Darden standard is a very
general one, leaving courts ‘more leeway . . . in reaching outcomes in case-by-case
determinations’”) (quoting Yarborough, 541 U.S. at 664).
Analysis
Respondents assert that Morris failed to exhaust several of his specific allegations
of misconduct in state court. Morris argues that while his habeas claim includes additional
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examples of misconduct, he did assert prosecutorial misconduct in state court and the
additional examples are not separate claims. He argues it is not appropriate to divide the
single claim incorporating those examples into separate subclaims.
A claim has not been fairly presented in state court if new factual allegations either
“fundamentally alter the legal claim already considered by the state courts,” Vasquez v.
Hillery, 474 U.S. 254, 260 (1986); Beaty v. Stewart, 303 F.3d 975, 989–90 (9th Cir. 2002),
or “place the case in a significantly different and stronger evidentiary posture than it was
when the state courts considered it.” Aiken v. Spalding, 841 F.2d 881, 883 (9th Cir. 1988);
accord Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988).
If, as Morris contends, there is only a single claim of prosecutorial misconduct, and
his new allegations are supported by significantly different facts than those presented in
state court so that they fundamentally alter the claim already considered by the Arizona
courts, he would be precluded from raising this fundamentally altered claim in state court.
See Ariz. R. Crim. P. 32.1(d)–(h), 32.2(a) & (b); Stewart, 536 U.S. at 860–61; Beaty, 303
F.3d at 987; Ortiz, 149 F.3d at 931–32; Carriger, 971 F.2d at 333. Accordingly, the claim
as a whole would be technically exhausted but procedurally defaulted in federal court. See
O’Sullivan, 526 U.S. at 848; Coleman, 501 U.S. at 735 n.1; Hurles, 752 F.3d at 779–80.
The Court, however, rejects this approach. Individual allegations of prosecutorial
misconduct that were not fairly presented to the courts should be dismissed as procedurally
defaulted. See Wood v. Ryan, 693 F.3d 1104, 1117 (9th Cir. 2012) (affirming district
court’s dismissal of unexhausted allegations of prosecutorial misconduct because they
were not fairly presented to the states); Jackson v. Conway, 763 F.3d 115, 143–44 (2d Cir.
2014) (finding that, despite exhaustion of other prosecutorial misconduct allegations,
allegations not raised in state court are unexhausted and procedurally defaulted).
Moreover, even if a petitioner could allege new facts in the federal habeas proceeding and
still satisfy the exhaustion rule, those new facts may not be considered in determining
whether the state court’s merits adjudication was objectively unreasonable. Pinholster,
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563 U.S. 170; Vasquez, 474 U.S. at 257–58. Thus, the Court considers only those
prosecutorial misconduct allegations reviewed on the merits by the state court and finds
Petitioner’s new allegations – Claims One (A)(2), One (B)(1) and (3), One (D), and One
(E) – procedurally defaulted.
Morris asserts that any default can be overcome because of the ineffective assistance
of PCR counsel. (Doc. 34 at 33.) As explained above, however, ineffective assistance of
PCR counsel can excuse only claims of ineffective assistance of trial counsel. Martinez
(Ernesto), 926 F.3d at 1225; Pizzuto, 783 F.3d at 1177; Hunton, 732 F.3d at 1126–27.
Therefore, the unexhausted allegations, which concern the conduct of the prosecutor and
not the defense attorney at trial – Claims One (A)(2), One (B)(1) and (3), and One (D) –
remain defaulted and barred from federal review. Claim One (E), which alleges ineffective
assistance of trial counsel, is addressed below.
Morris contends the state court’s rulings on the five exhausted allegations were
contrary to or based on an unreasonable application of clearly established Supreme Court
precedent, see 28 U.S.C. § 2254(d)(1), and also involved unreasonable determinations of
the facts, see id. § 2254(d)(2). (Doc. 21 at 100–106.) He further alleges the Arizona
Supreme Court unreasonably applied clearly established Supreme Court precedent by
reviewing isolated instances of prosecutorial misconduct alone rather than considering
their cumulative effect. (Id. at 101.)
In support of Claim One, Morris first chronicles “the well-documented history” of
the prosecutor, Juan Martinez, violating ethical rules and committing misconduct.
(Doc. 21 at 72–78.) Because this evidence was never presented in state court when
adjudicating Morris’s prosecutorial misconduct claim on the merits, it “has no bearing on
§ 2254(d)(1) review.” See Pinholster, 563 U.S. at 185. Additionally, accusations from
other cases are not relevant to the issue before the Court, which is “the fairness of the trial,
not the culpability of the prosecutor.” Phillips, 455 U.S. U.S. at 219; see Trillo, 769 F.3d
at 1001 (explaining that the court’s role in reviewing prosecutorial misconduct claims “is
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not to punish society for the misdeeds of the prosecutor,” but “to ensure that the petitioner
received a fair trial”). Morris asserts that PCR counsel should have incorporated the
prosecutor’s “pattern of misconduct, including cases decided after Morris’s trial and direct
appeal had concluded,” in a claim of prosecutorial misconduct. As noted above, however,
PCR counsel’s ineffectiveness cannot excuse the procedural default of the unexhausted
claims, and to the extent Morris also alleges it is relevant to his claim of trial counsel
ineffectiveness, allegations of misconduct occurring after trial are irrelevant to whether
trial counsel’s performance was deficient. Accordingly, the Court addresses only the
prosecutor’s actions in Morris’s case.
Exhausted Allegations of Prosecutorial Misconduct
Claim One (A)(1): Misrepresentation of Facts
In both the guilt and aggravation phases of trial, the prosecutor argued that Morris
killed the victims in order to have sexual intercourse with their corpses. (RT 7/05/05 at 14,
37–39, 43–44, 46, 49–50, 53–55, 124; RT 7/12/05 at 26–27, 32–33, 35–39.) The Arizona
Supreme Court rejected Morris’s allegation that there was no basis in fact for this argument.
The court found that although the evidence “does not compel the conclusion that Morris
engaged in intercourse with the corpses of the victims, the record includes sufficient
evidence to permit the prosecutor to make such an argument.” Morris, 215 Ariz. at 336,
160 P.3d at 215. Additionally, “the judge instructed the jury that the lawyers’ arguments
were not evidence to be considered in reaching its conclusions,” and the court presumed
“the jurors reached their own conclusions regarding the strength of the evidence.” So that
“even if the prosecutor’s statements were improper, the judge’s instructions negated their
effect.” Id. at 336–37, 160 P.3d at 215–16. Finally, the Arizona Supreme Court found that
the prosecutor’s arguments were “directed only toward establishing the ‘heinous and
depraved’ prong” of the (F)(6) aggravator. They were “at worst, harmless error” because
the jury found that each murder was committed in an especially cruel manner and a finding
of cruelty alone is sufficient to establish the (F)(6) aggravator. Id. at 337, 160 P.3d at 216.
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The state court’s ruling on this claim was not based on an unreasonable application
of clearly established Supreme Court precedent or an unreasonable determination of the
facts.
Morris first argues the Arizona Supreme Court erred by considering only whether
the prosecutor committed misconduct at the aggravation phase, ignoring Morris’s
“pervasive argument about necrophilia at the guilt phase.” (Doc. 21 at 102.) Morris argued
in his Opening Brief that “[t]here was no basis in fact for the prosecutor’s continuing
argument that [Morris] had killed the victims in order to have sexual intercourse with their
corpses.” In support of this allegation, he cited arguments the prosecutor made in the
closing arguments of the guilt phase of trial. (See DA 29 at 51) (citing RT 7/5/05 at 37–
39, 123–24). Morris referred to the same portions of the guilt-phase transcript in his reply
brief. (See DA 38 at 16.)
In rejecting Morris’s claim, the Arizona Supreme Court addressed only whether the
prosecutor committed misconduct in the aggravation phase. See Morris, 215 Ariz. at 336,
160 P.3d at 215. The court appears to have overlooked Morris’s only specific references
to the transcript: the prosecutor’s closing and rebuttal arguments in the guilt phase of trial
regarding victims Codman and Noah. (See DA 29 at 51) (citing RT 7/5/05 at 37–38)
(arguing that Morris kept Codman’s body “because he wanted to have sex with the body”
and that the evidence of skin slippage “indicates that he went in there when she was dead”);
(RT 7/5/05 at 123–24) (arguing photographs of Codman and Noah at the scene
demonstrated skin slippage, an indication of friction, only between the legs as well as
sperm matching Morris inside Noah’s vagina despite Morris’s having said he used a
condom when he had sex with her when she was alive).
The conclusion reached by the Arizona Supreme Court regarding the prosecutor’s
arguments during the aggravation phase – that the record contained “sufficient evidence to
permit the prosecutor to” argue “that Morris engaged in intercourse with the corpses,”
Morris, 215 Ariz. at 336, 160 P.3d at 215 – applies equally to Morris’s argument that the
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prosecutor distorted the evidence in the guilt phase. Specifically, in finding that the record
included sufficient evidence to support a necrophilia argument, the Arizona Supreme Court
explained that:
The prosecutor relied in part on skin slippage on selective parts of the
victims’ bodies as evidence that Morris engaged in intercourse with the
corpses. Selective skin slippage existed on Codman’s inner thighs and breast
and on Noah’s inner thighs. The medical examiners testified that skin
slippage can result from friction and the general decomposition process. . . .
The prosecutor also relied on the skin defects on Castillo’s anus, although
the medical examiner was unable to determine whether those defects were
caused by trauma or decomposition. In his statement to police, Morris also
mentioned that he either masturbated or ejaculated in his sleep after Castillo
died but while she was still in his camper. Castillo’s buttocks were level with
Morris’s bed.
Additionally, the prosecutor relied on DNA evidence showing Morris’s
semen was present in Velasquez’s and Noah’s vaginas, even though Morris
insisted that he wore a condom during sex with the women before their
deaths. Thus, the proposition that Morris had intercourse with the corpses of
Codman, Velasquez, Noah, and Castillo is a “reasonable inference” to be
drawn from the evidence in the record, and the prosecutor did not act
improperly in making this argument.
Id.
The record supports the state court’s conclusion that the prosecutor’s arguments
were a reasonable inference to be drawn from the evidence. See Young, 470 U.S. at 8 &
n.5 (“The prosecutor may argue all reasonable inferences from evidence in the record.”)
(quoting ABA Standards for Criminal Justice Rule 3–5.8).
For example, Dr. Hu testified that the photo of Codman at the location where her
body was found demonstrated skin slippage on her left breast, inner thigh, and the upper
part of the arm, which could have indicated rubbing, touching, or friction in those areas
after she was dead and her body had started to decompose. (RT 6/28/05 at 13, 23–24, 26–
27, 48.)
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Detective Dillian testified that the photo of Noah at the crime scene, as well as her
personal observations at the scene, demonstrated skin slippage on both inner thighs and
smaller areas near the breast and hip. (RT 6/20/05 at 41–42.)
Morris’s semen was found inside Noah’s vagina, even though Morris told police
that he used a condom while having sex with Noah before she died. (RT 6/27/05 at 24–
25; PCR Pet. Ex. O at Bates No. 525, 572, 583.) Morris’s semen was also found inside
Velasquez’s vagina, even though Morris told police that he always used a condom. (RT
6/27/05 at 19–20; RT 6/29/05 at 16; PCR Pet. Ex. O at Bates No. 525, 572.)
Castillo’s naked body was found face down in Morris’s camper with her buttocks
facing up and within a few inches of the area where Morris slept. (RT 6/14/05 at 68–75.)
Morris stated that he ejaculated in his sleep while Castillo’s body was next to him. (PCR
Pet. Ex. O at Bates No. 502–03.) Castillo had tears or defects in the skin around her anus,
which Dr. Horn testified was consistent with trauma, though he could not say whether it
happened before, during, or after death. (RT 6/15/05 at 87–88, 95–96.)
Morris further asserts that the Arizona Supreme Court ignored numerous
misstatements the prosecutor made about the alleged evidence of necrophilia in an attempt
to make it appear to be a reasonable theory.
First, Morris alleges that during the guilt phase the prosecutor made statements
about the evidence regarding the anal defects on Castillo’s body that were contrary to the
evidence and highly prejudicial to Morris, as they transformed the defects from a natural
phenomenon to evidence of assault. (Doc. 21 at 80.) The Court disagrees.
Responding to questions posed by the prosecutor, Dr. Horn, the medical examiner,
testified as follows:
A: Around the anus there were defects in the skin, and I felt that they could
represent -- they could be tears in the skin from trauma.
But, again, there was a lot of -- there were a lot of maggots in that area, as
well as a lot of maggots around the vagina and around the anus, and lot of
insect activity and decomposition there, too. So I felt I couldn’t opine one
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way or the other whether that was real trauma before death or just due to the
decompositional process.
Q: Is it consistent with trauma to the anus?
A: Could be consistent, yes.
Q: Trauma -- if it is trauma to the anus, is it ante-, peri-, or post-mortem?
A: Again, I couldn’t say.
Q: So it could be before, during, or after death?
A: Yes.
(RT 6/15/05 at 88.)
On cross-examination, Dr. Horn further testified:
Q: Did I understand you correctly that that is the result of either some sort
of sexual activity or some sort of insect activity?
A: Correct.
Q: And you can’t tell us which one it was?
A: That’s correct.
(Id. at 96.)
Morris asserts that, contrary to this evidence, the prosecutor repeatedly referred to
the defects as “injuries” or “trauma” that were “consistent with sexual activity” during his
examination of Dr. Horn. (Doc. 21 at 80) (citing RT 6/15/05 at 88, 95, 102). The
statements made in questioning Dr. Horn, however, were a reasonable inference taken from
the evidence. Moreover, the prosecutor said the defects indicated “potential trauma,” (RT
6/15/05 at 95) “consistent with sexual activity,” which could also have been caused by
“insect activity.” (Id. at 102.) The prosecutor further clarified that Dr. Horn could not
determine “whether it was consensual or nonconsensual if it was sexual activity,” and
whether it was “before or after death.” (Id. at 102) (emphasis added). These questions
allowed room for the jurors to draw their own conclusions about what may have caused
the defects. See Boyde, 494 U.S. at 385 (“[T]he arguments of counsel . . . must be judged
in the context in which they are made.”).
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Morris argues that the prosecutor continued to misstate the evidence throughout
closing argument. (Doc. 21 at 80) (citing RT 7/05/05 at 53–54). Read in context, the
prosecutor continued to clarify that Dr. Horn could not determine whether the defects or
“lesions” occurred before, during, or after death, and merely “proposed,” based on the way
Castillo’s body was positioned and Morris’s description of ejaculating while he was
sleeping next to her, that “his penis went inside her anus when she was dead.” (RT
07/05/05 at 53–54.) The scenario “proposed” by the prosecutor was not an unreasonable
inference based on the evidence.
Morris further alleges the prosecutor made false statements about Dr. Horn’s
testimony during the aggravation phase to support his theory that Morris engaged in
postmortem sex with Castillo. (Doc. 21 at 80.) The prosecutor stated that Dr. Horn
indicated there “were lacerations or bruising through trauma” around Castillo’s anus. (Id.)
(citing RT 7/12/05 at 37). Later, he again referred to the defects as “trauma” (RT 7/12/05
at 109, 133), consisting of “lacerations or contusions or abrasions.” (Id. at 109.) Although
the prosecutor’s description of the defects was not fully accurate – the medical examiner
did not describe any bruising or contusions – the fact remains that the jury had heard from
Dr. Horn that there were defects around Castillo’s anus that they may or may not have been
caused by postmortem intercourse; they had heard Morris’s statement that he ejaculated
while sleeping next to her body; and the prosecutor’s argument of necrophilia was a
reasonable inference from this evidence.
Morris argues that no medical examiner testified that the only reason there would
be skin slippage on the victims in certain areas of their bodies would be if Morris engaged
in postmortem sex with them. But the medical examiner testified that the skin slippage
observed in photographs of Codman at the crime scene involving the back of the right arm
was consistent with somebody, after her death, grabbing underneath the arm and rubbing.
(RT 6/28/05 at 25). Similarly, slippage over one side of the breast indicated “some kind
of force” – rubbing or touching – “applied to that area.” (Id. at 26.) The medical examiner
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also noted skin slippage “near the pubic area to down by the knee . . . concentrate[d] on the
front inner aspect of the thigh.” (Id. at 27.) A reasonable inference to be drawn from this
evidence is that Morris had postmortem sex with the victim.
The Court concludes that the state court’s rejection of the prosecutorial misconduct
claim was not “so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.” See
Matthews, 567 U.S. at 47 (citing Richter, 562 U.S. at 101–02). Morris has failed to show
that the state court’s conclusions about reasonable inferences to be drawn from the
evidence – that Morris had intercourse with the corpses of Codman, Velasquez, Noah, and
Castillo – was contrary to or an unreasonable application of clearly-established federal law,
or was based on an unreasonable determination of facts. Because Morris has not met his
burden of showing “there was no reasonable basis for the state court to deny relief,”
Richter, 562 U.S. at 98; see Parker, 567 U.S. at 47–48, this claim is denied.
Claim One (B)(2): Improperly focusing on graphic details of the victims’ decomposition
Morris contends the prosecutor improperly focused on graphic details of the
victims’ decomposition, particularly evidence of skin slippage and anal defects. (Doc. 21
at 90–96.) Although Morris did not specifically allege this claim in his Opening Brief,
Respondents do not assert the claim is procedurally defaulted. The claim is, however,
meritless, for the reasons discussed below in Morris’s IAC claim, Claim One (E), based on
his counsel’s failure to object to the prosecutor’s alleged misconduct.
Claim One (C)(1): Appealing to Passion and Fears of Jurors, Improper Remarks to Jurors
The Arizona Supreme Court found the prosecutor committed misconduct in closing
argument by singling out particular jurors and addressing them personally, playing on their
sympathy for the victims and fears of the defendant. Morris, 215 Ariz. at 337, 160 P.3d at
216. The court provided an example of the prosecutor’s improper remarks:
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[W]hich one of you wants to volunteer? I want a show of hands on this one.
Which one of you ladies—and we don’t need guys on this one, because he
didn’t take guys. He only took women.
Which one of you want [sic] to volunteer to come sit here and have the
defendant sit himself on your chest and say, Oh, that didn’t hurt? Because
the defense attorney is saying throw common sense out of [the] window.
Which one? I challenge anybody to say, That is something I want to do. And
anyway, and on top of that, while he’s sitting on my chest, which one of you,
since the one lower left-hand side has the longer hair of the jurors, maybe
she wants to have him grab her hair while he’s sitting on her chest . . . to grab
it and pull it around her neck.
You think that’s not going to hurt? You think one of you guys is going to
volunteer for that? You can’t leave your common sense aside. [Defense
counsel] wants you to because he makes these arguments and says, well, we
don’t know what is in their heads. We don’t know what is in Juror Number
1’s head. Can you tell me you don’t think it’s not going to hurt when he sits
on you?
Hey, Juror Number 1 or Juror Number 14, whatever it is, what if we put
Winnie the Pooh tie around your neck? Are you going to enjoy that? Are
you going to like it? Going to feel real good when you can’t breathe?
Id.; see also (RT 7/12/05 at 130–31).
The Arizona Supreme Court concluded, however, that Morris had not shown this
“isolated incident of impropriety” denied him of a fair trial or deprived him of a right
essential to his defense. Id. at 338, 160 P.3d at 217. Additionally, the court concluded that
Morris could not establish prejudice:
The prosecutor’s argument was directed toward proof of cruelty. To prove
that a murder was “especially cruel” under A.R.S. § 13-703[(F)(6)], the State
must show that the victim was conscious and suffered physical pain or mental
anguish during at least some portion of the crime and that the defendant knew
or should have known that the victim would suffer. State v. Trostle, 191
Ariz. 4, 18, 951 P.2d 869, 883 (1997). Here, independent of the prosecutor’s
improper argument, the State presented overwhelming evidence of cruelty.
The medical examiner testified that all of the victims would have experienced
pain for some period before losing consciousness. Moreover, the evidence
suggests that at least three of the victims struggled with Morris before losing
consciousness: Morris’s DNA was under Davis’s fingernails, Noah’s
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fingernails were broken, and the side of Velasquez’s face was bruised.
Morris has not met his burden of showing that the argument caused prejudice.
Id.
Morris first argues that the state court’s determination was unreasonable because
“the court ignored the fact that [the prosecutor’s] argument was aimed at inflaming the
passions in a supremely private context.” (Doc. 21 at 102.) The record does not show that
the state court ignored this issue. The court specifically acknowledged that the prosecutor
“invited jurors to put themselves in the place of the victims and singled out specific jurors
based on appearance and gender.” Morris, 215 Ariz. at 337, 160 P.3d at 216. The court
did not ignore the “private context” of the prosecutor’s remarks.
Morris next asserts that the state court’s finding that the evidence of cruelty was
“overwhelming” was based on an unreasonable determination of facts because the state
court did not acknowledge that the evidence of consciousness was inconclusive. (Doc. 21
at 102; see also id. at 258) (citing State v. Fulminante, 161 Ariz. 237, 254–55, 778 P.2d
602, 619–20 (1988)). Morris contends the prosecution presented no evidence of how long
any of the victims remained conscious. (Id. at 258.) Under Arizona law, “[i]f the evidence
is inconclusive as to whether the victim was conscious during the infliction of violence,
the court cannot find that the killing was especially cruel.” State v. Schackart, 190 Ariz.
238, 248, 947 P.2d 315, 325 (1997) (citing State v. Bolton, 182 Ariz. 290, 311, 896 P.2d
830, 851 (1995)).
The Court is not aware of any authority, and Morris cites none, that a victim must
remain conscious for any predetermined length of time. See State v. Cropper, 223 Ariz.
522, 526, 225 P.3d 579, 583 (2010) (“No set period of suffering is required) (citation
omitted); State v. Goudeau, 239 Ariz. 421, 463, 372 P.3d 945, 987 (2016) (commenting
that a victim’s suffering need not last for any specific length of time to establish cruelty)
(citing Cropper, 223 Ariz. at 526, 225 P.3d at 583). The state must prove only that a
“victim was conscious” and suffered mental or physical anguish at the time of the offense.
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See Bolton, 182 Ariz. at 311, 896 P.2d at 851 (citing State v. Jiminez, 165 Ariz. 444, 453,
799 P.2d 785, 794 (1990)). Though unwilling to say that all stranglings are per se cruel,
the Arizona Supreme Court has found that a period of suffering from as little as “eighteen
seconds to two or three minutes can be enough to warrant application of the cruelty factor.”
Schackart, 190 Ariz. at 248, 947 P.2d at 325 (citing State v. Herrera, 176 Ariz. 21, 34, 859
P.2d 131, 144 (1993)).
Dr. Horn testified that most strangulation victims will be unconscious within 30
seconds to a minute of consistent pressure, assuming that the victim is not struggling. (RT
6/15/05, at 85–86.) Dr. Keen testified that during manual or ligature strangulation or
compression asphyxia a person would feel and perceive sensations before they lapse into
unconsciousness. (RT 7/12/05 at 44, 52, 53, 57–58.) He testified, however, that there was
no way to know how long it took for any of the victims in this case to lose consciousness.
(Id. at 66, 72.) The length of time would be “variable” and depend on things such as the
hold on the ligature and the initial state of consciousness of the victim. (Id. at 57–58, 66.)
Morris asserts that because all of the victims had drugs or alcohol in their system,
the finding that they were conscious at the time of their deaths is speculative. (Doc. 21 at
259) (citing RT 6/15/05 at 93–95; RT 0/27/05 at 114–118; RT 6/28/05 at 34–37; RT
6/29/05 at 19–21, 37–38). This ignores the evidence that Morris admitted to strangling all
five victims at their insistence – in other words, while they were conscious. See Morris,
215 Ariz. at 229, 160 P.3d 208. Further, as the Arizona Supreme Court noted, physical
evidence suggested that three of the victims – Davis, Velasquez, and Noah – struggled
before their deaths. Morris does not dispute this evidence, but argues it is mere
“speculation” to conclude that the struggle occurred during strangulation. He suggests that
Noah’s broken fingernails, Velasquez’s bruise, and the DNA under Davis’s fingernails
could have occurred at some other time or in some other way. (Doc. 21 at 260.) But when
combined with the fact that all of the victims were conscious during the strangulation
according to Morris’s own statements, and Dr. Keen’s testimony that the victims would
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have felt sensation before they lapsed into unconsciousness, these conditions could
reasonably be viewed by the jury as suggesting a struggle before the victims died.
The Arizona Supreme Court’s evaluation of the evidence and the facts is presumed
correct, and Morris has not satisfied his burden of showing by clear and convincing
evidence that the evidence demonstrating the victims were conscious was inconclusive.
Claim One (C)(2): Appealing to Passion and Fears of Jurors – Unpackaging Castillo’s
Jacket
Morris alleges the prosecutor inflamed the jury’s passions and fears by unpackaging
and displaying Castillo’s jacket, resulting in a foul odor permeating the courtroom, and
then arguing in closing argument that the jacket was opened for the jury’s “smelling
pleasure.” (Doc. 21 at 96–97.)
During closing argument, the prosecutor stated:
But one of the things that is interesting about [Castillo] is that the smell is
absolutely putrid, absolutely one of the worst things that you will ever
probably experience. And you got a minimal exposure to it when the jacket
was opened up for your, if you will, smelling pleasure, for lack of a better
word.
And what ended up happening – you could tell it was a very strong odor
about it. So with regard to Julie Castillo, one of the things that happened to
her is that she was wearing that jacket, and the reason that we pulled it out to
show it to you, because the sleeves were inside out, and what that means is
that he killed her.
Morris, 215 Ariz. at 338 n.7, 160 P.3d at 217; (see also RT 07/05/05 at 51).
Morris argued in his Opening Brief that the prosecutor’s statement constituted an
admission that the prosecutor offered the jacket solely to inflame the jurors’ passions. (DA
29 at 52) (citing RT 7/05/05 at 51). The Arizona Supreme Court rejected this claim,
concluding there “was no misconduct in introducing the jacket into evidence.” Morris,
215 Ariz. at 338, 160 P.3d at 217. The court explained:
The prosecutor originally introduced the jacket to show that it belonged to
Castillo. During the testimony of a police officer who investigated the scene
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of Castillo’s death, the prosecutor introduced a booking photograph of
Castillo wearing the jacket and then asked the officer to remove the jacket
from its plastic bag and hold it up. The prosecutor quickly asked the
detective to return the jacket to the bag.
Id. Morris asserts this ruling was contrary to and an unreasonable application of clearly
established law, as well as an unreasonable determination of the facts. (Doc. 21 at 104–
05.)
The state court found that, “[a]t worst, the offhand ‘smelling pleasure’ comment
was inappropriate,” but it did not deprive Morris of a fair trial. Morris, 215 Ariz. at 338,
160 P.3d at 217. The court concluded that Morris could not establish prejudice because
“overwhelming evidence established that the strong odor associated with the jacket resulted
from its close proximity to Castillo’s badly decomposed body.” Id.
Morris asserts the Arizona Supreme Court “ignored the magnitude” of the impact
of unsealing the jacket and focused on the prosecutor’s “smelling pleasure” remark,
improperly characterizing it as a singular, offhand comment, when in fact the prosecutor’s
“focus on the smell of decomposing bodies was not limited to the comment in reference to
the jacket.” (Doc. 21 at 105.) Morris alleges the prosecutor painted him as a “monster
who enjoyed the smell of rotting corpses” throughout his questioning of witnesses and in
closing argument, and the introduction of the jacket early in the guilt phase “provided the
jurors with a repugnant point of reference for each time he asked a witness about or made
statements concerning the smell” of Morris’s trailer. (Id.)
Morris, however, did not make this argument in his Opening Brief, nor did he make
any reference to the portion of the transcripts he now asserts in support of this argument.
(See DA 29 at 52.) Morris argued only that the prosecutor’s “smelling pleasure” comment
was evidence of the prosecutor’s improper intent in opening the package. (Id.) The state
court clearly identified this claim and rejected it by finding that the package was not opened
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solely to prejudice the jury – the “prosecutor originally introduced the jacket to show that
it belonged to Castillo.” Morris, 215 Ariz. at 338, 160 P.3d at 217.
Moreover, the contention that the prosecutor opened the jacket to intentionally
inflame the jurors is unsupported by the record. The prosecutor explained in closing
arguments that the jacket was brought out of its packaging to demonstrate that the sleeves
of the jacket were inside out, evidence that Morris removed the jacket after Castillo’s death.
(RT 7/5/05 at 51–52; see also RT 6/15/05 at 21–24, 30). The state court’s conclusion that
the prosecutor’s stated reason for opening the package was to show that it belonged to
Castillo appears reasonable from the record.
Morris also asserts the state court’s factual determination – that the odor associated
with the jacket resulted from its close proximity to Castillo’s badly decomposed body –
was unreasonable because, as defense counsel pointed out in closing arguments, the jacket
had been sealed for years, causing the odor to increase. Defense counsel’s arguments,
however, are not evidence. See Leavitt v. Arave (Leavitt I), 383 F.3d 809, 834 (9th Cir.
2004). There was ample evidence in the record that the strong odor of the jacket resulted
from its proximity to Castillo’s body. Morris’s uncle testified that he could smell “a rotten
odor like a dead animal” in the backyard of his home (RT 06/13/05 at 105), eventually
tracking the smell to the trailer where Morris lived and discovering Castillo’s body. (Id. at
106–07, 119–21.) Morris stated during his interview with the police that he laid the jacket
on top of Castillo after removing her urine-soaked pants and shirt. (PCR Pet. Ex. O at
Bates No. 496–98.)16 And the jacket was discovered in the trailer after Castillo’s body was
16 Sections of the videotape of Morris’s interview with Detective Hutson were
played for the jury and admitted as separate exhibits. (See ROA 180; RT 06/16/05 at 31,
34, 39, 40, 41, 43, 44, 46, 47, 53; RT 6/20/05 at 8, 10, 12, 14.) The complete videotaped
interview, marked as Trial Exhibit 382, was not admitted during the trial. (See id.). The
transcript of the complete interview was attached to Morris’s PCR petition. (See PCR Pet.
Ex. O.)
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found. (RT 6/14/05 at 160–61; RT 6/15/05 at 20–21). It was not unreasonable for the state
court to conclude that the odor of the jacket resulted from its proximity to Castillo’s body.
For all of these reasons, the state court’s denial of this claim was not “so obviously
wrong as to be ‘beyond any possibility for fairminded disagreement.’” Kayer, 592 U.S. at
124 (quoting Richter, 562 U.S. at 102, 103).
Claim One (C)(3): Appealing to Passion and Fears of Jurors – Display of Excluded
Photographs
Morris alleges the prosecutor inflamed the jury’s passions and fears by keeping an
excluded photograph showing maggot infestation on top of a pile of papers on his table, on
open display to the jury. (Doc. 21 at 97) (citing RT 6/15/05 at 58). Morris raised this claim
in his Opening Brief, “asserting the photograph remained in full view throughout the
testimony of two witnesses, until [Morris’s] counsel objected to its presence and the trial
court ordered the prosecutor to cover the photograph or turn it over.” (DA 29 at 52) (citing
RT 6/15/05 at 58).
The Arizona Supreme Court rejected the claim, finding no misconduct given the
circumstances:
Nothing in the record indicates that any juror actually saw the challenged
photograph. Defense counsel did not ask the trial judge to determine whether
any jurors had seen the photograph or to instruct the jurors to disregard it.
The prosecutor complied with the judge’s order to remove the photograph
from view, and nothing indicates that he intentionally left it on his desk or
that he repeated this conduct at any other point in the trial.
Morris, 215 Ariz. at 338–39, 160 P.3d at 217–18.
Morris asserts the state court’s ruling was unreasonable because it ignored the fact
that “this incident occurred on the same day that Castillo’s jacket was unsealed,” indicating
a pattern of misconduct by the prosecutor. (Doc. 21 at 105–06.)
The state court’s finding was reasonable because there is no evidence that the jury
saw the photograph, and Morris does not contend otherwise. There is also no support in
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the record for Morris’s contention that the prosecutor left the photograph out intentionally.
That this happened on the same day Castillo’s jacket was unpackaged does not establish
that the state court’s denial of this claim was “so obviously wrong as to be ‘beyond any
possibility for fairminded disagreement.’” Kayer, 592 U.S. at 124 (quoting Richter, 562
U.S. at 102, 103).
Claim One (F): Improper Influence
The Arizona Supreme Court rejected Morris’s allegation that the prosecutor
improperly influenced the medical examiners investigating the deaths of Codman and
Davis by providing them copies of the statements Morris made to the police. Morris, 215
Ariz. at 336, 160 P.3d at 215. The court summarized the relevant facts as follows:
Dr. Hu, who performed Codman’s autopsy, and Dr. Horn, who performed
Davis’s autopsy, originally determined that the cause of death for each
woman was drug overdose. After police provided them transcripts of
Morris’s statements regarding the deaths, the medical examiners testified that
they found nothing inconsistent with asphyxiation due to strangulation as the
cause of death for both women.
Id. at 335–36, 160 P.3d at 214–215.
The state court then noted that under Arizona law a peace officer is required to report
the results of an investigation surrounding a suspicious death to the county medical
examiner, and the medical examiner is statutorily required to make inquiries regarding the
cause and manner of death. Id. at 336, 160 P.3d at 215 (citing A.R.S. §§ 11-593(B), 11-
594(A)(4), 11-594(A)(2) (2001)). The court held that no misconduct occurred, therefore,
when the prosecutor provided the transcripts of Morris’s statements to the medical
examiners. Additionally:
[T]he record does not suggest that Morris’s statements improperly influenced
either of the medical examiners. Both testified simply that they found
nothing inconsistent with those statements in their respective autopsies of
Codman and Davis, and they acknowledged that, without the statements, they
would have believed that drug intoxication caused the deaths.
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Id.
Morris alleges the state court’s factual determination was unreasonable because the
court ignored the fact that the prosecutor did not provide the medical examiners with
Morris’s statements until after they were interviewed by defense counsel.17 (Doc. 21 at
106.)
“[T]he state-court fact-finding process may be ‘undermined where the state court
has before it, yet apparently ignores, evidence that supports petitioner’s claim.’” Kipp v.
Davis, 971 F.3d 939, 953 (9th Cir. 2020) (quoting Taylor v. Maddox, 366 F.3d 992, 1001
(9th Cir. 2004)). State courts are not required, however, to address “every jot and tittle of
proof suggested to them,” and “overlooked and ignored evidence” fatally undermines the
fact-finding process only when the evidence is “highly probative and central to petitioner’s
claim.” Id. at 954 (quoting Taylor, 366 F.3d at 1001).
Morris did not assert in state court that the timing of the prosecutor’s disclosure of
Morris’s statements to the medical examiners constituted prosecutorial misconduct. (See
DA 29 at 50–51.) Given this fact, Morris fails to show that the timing of disclosure was
“central to his claim” or that he was prejudiced by the state court’s failure to address it.
See Donnelly, 416 U.S. at 643; see also Parker, 567 U.S. at 45; Johnson, 63 F.3d at 930.
Morris’s counsel brought to the juror’s attention the medical examiners’ inability to
determine the causes of death until after speaking with detectives. (RT 7/05/05 at 101–
105.) His counsel also argued that their conclusions – “consistent with strangulation” –
was not proof of strangulation beyond a reasonable doubt and that cocaine intoxication was
more consistent with the physical findings reported by the medical examiners. Morris does
not state what more he would have done if the reports were disclosed any earlier or how he
17 Morris did not assert this as an individual claim in his Petition. (See Doc. 21 at
79–100.) Nonetheless, because he asserts the state court’s decision regarding improper
influence was unreasonable and based on an unreasonable factual determination, the Court
treats this as an exhausted allegation of prosecutorial misconduct.
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was prejudiced by the timing of the disclosure. Accordingly, the state court’s decision was
not contrary to or an unreasonable application of clearly established federal law, and was
not based on an unreasonable factual determination.
Cumulative Effect
Morris asserts the Arizona Supreme Court erred by individually analyzing each of
the five examples of misconduct “in a vacuum” and, after determining that only one
qualified as misconduct, concluding that “[b]ecause Morris has described only one incident
of misconduct, we cannot conclude that the prosecutor engaged in ‘persistent and
pervasive’ misconduct.” (Doc. 21 at 101) (citing Morris, 215 Ariz. at 339, 160 P.3d at
218). Morris contends this was an unreasonable application of “clearly established
Supreme Court precedent holding that prosecutorial misconduct is not evaluated from
isolated instances alone; rather, the reviewing court must consider the cumulative effect of
the harm.” (Id.) (citing Berger v. United States, 295 U.S. 78, 89 (1935)). In addition to
being procedurally defaulted,18 this argument is meritless.
In Berger, the Supreme Court reversed a conviction where the prosecutor had made
“improper suggestions, insinuations, and . . . assertions of personal knowledge” about
evidence not before the jury. 295 U.S. at 88. The Court found the prosecutor’s
“pronounced and persistent” misconduct had “a probable cumulative effect upon the jury”
and concluded that Berger was entitled to a new trial. Id. at 89.
18 In state court, Morris argued only that the court was required under state law to
assess each incident for error and then assess whether the incident should “count towards
the defendant’s prosecutorial misconduct claim.” (DA 29 at 48) (citing State v. Roque, 213
Ariz. 193, 228, 141 P.3d 368, 403 (2006). He further asserted that even if there is no error,
or an error is harmless and by itself does not warrant reversal, “an incident may nonetheless
contribute to a finding of persistent and pervasive misconduct if the cumulative effect of
the incidents shows that the prosecutor intentionally engaged in improper conduct and ‘did
so with indifference, if not a specific intent, to prejudice the defendant.’” (Id.) (citing
Hughes, 193 Ariz. at 83, 88, 969 P.2d at 1195, 1200).
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The Berger Court distinguished the multiple instances of misconduct at issue from
cases “where the misconduct of the prosecuting attorney was slight or confined to a single
instance.” Id. Here, the state court reasoned, correctly, that because there was only one
instance of misconduct, it could not conclude that the prosecutor engaged in “persistent
and pervasive” misconduct.19 Because there was no misconduct to cumulate, the court’s
conclusion was neither contrary to nor an unreasonable application of clearly established
Supreme Court precedent. Morris is not entitled to habeas relief on this claim.
Claim One(E): Ineffective Assistance of Counsel – Failure to Object to Prosecutorial
Misconduct
Morris asserts his trial counsel was ineffective for failing to object to the
“prosecutor’s pervasive misconduct.” (Doc. 21 at 106–08.) Morris concedes this claim is
unexhausted, but asserts he can overcome its default by “demonstrating at an evidentiary
hearing that post-conviction counsel fell below the standards of minimally competent
capital attorneys and that those failures prejudiced him.” (Id. at 106.)
The Court will assume without deciding that the claims are substantial and have
“some merit,” thereby satisfying Martinez’s prejudice prong. Martinez, 566 U.S. at 14.
With respect to the cause prong, the Court will assume that PCR counsel’s failure to raise
the claims constituted deficient performance under Strickland. The Court’s analysis
accordingly will focus on whether PCR counsel’s failure to raise the claims was prejudicial
– whether there was a reasonable probability of a different outcome during the PCR
proceedings if counsel had raised the claims. To make that determination, the Court must
evaluate the strength of the underlying claims of ineffective assistance of trial counsel. See
Hooper, 985 F.3d at 627; Atwood, 870 F.3d at 1059–60; Runningeagle v. Ryan, 825 F.3d
970, 982 (9th Cir. 2016).
19 This is the analysis Morris invited by arguing that “[o]nce the incidents
contributing to a finding of misconduct are identified, the court must evaluate their
cumulative effect on the trial.” (DA 29 at 48.)
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Morris asserts “trial counsel was plainly deficient for failing to object to, or ask for
a mistrial on the basis of, the pervasive and prejudicial prosecutorial misconduct that [the
prosecutor] committed throughout all phases of trial.” (Doc. 21 at 107.) Morris further
asserts that “had trial counsel objected, the prosecutor’s arguments would have been
curtailed, and with proper admonitions, the jury would have understood properly its role in
determining Morris’s guilt as well as the need to ‘consider and give effect to [mitigating]
evidence in imposing sentence,’ so that ‘the sentence imposed . . . reflect[s] a reasoned
moral response to the defendant’s background, character, and crime.’” (Id. at 108) (citing
Penry v. Lynaugh, 492 U.S. 302, 319 (1989)).
Claims of ineffective assistance of trial counsel are governed by the principles set
forth in Strickland, 466 U.S. 668. To prevail under Strickland, a petitioner must show that
trial counsel’s conduct fell below an objective standard of reasonableness and that the
deficiency prejudiced the defense. Id. at 687–88. Trial counsel is not ineffective for failing
to object to a prosecutor’s remarks when any such objection would have failed. See Juan
H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005) (explaining that the merits of the
underlying claim “control the resolution of the Strickland claim because trial counsel
cannot have been ineffective for failing to raise a meritless objection”); Green v. Johnson,
160 F.3d 1029, 1037 (5th Cir. 1998) (“[F]ailure to make a frivolous objection does not
cause counsel’s performance to fall below an objective level of reasonableness.”); James
v. Borg, 24 F.3d 20, 27 (9th Cir. 1994) (holding counsel was not ineffective for failing to
move to strike a special circumstance finding where the motion would have been futile).
Additionally, the Strickland prejudice standard is not met if counsel’s failure to object to a
prosecutor’s improper statements do not “seriously affect the fairness of the trial.” Ybarra
v. McDaniel, 656 F.3d 984, 1000 (9th Cir. 2011) (citing Kyles, 514 U.S. at 435–36); see
Leavitt v. Arave (Leavitt II), 682 F.3d 1138, 1140 (9th Cir. 2010) (even if a prosecutor’s
actions “deviat[ed] from propriety,” if it is “not enough to make any difference in the
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result,” no prejudice results from counsel’s failure to object) (citing Leavitt I, 383 F.3d at
835).
Applying these principles to the allegations in Claim One which underly Morris’s
ineffective assistance claim, the court concludes that Morris has failed to demonstrate
deficient performance by trial counsel or that he was prejudiced by any failure of that
counsel to object to the alleged misconduct.
a. Misstatement of facts
Morris first alleges the prosecutor misrepresented the facts by arguing Morris
engaged in postmortem sex with four of the victims. (Doc. 21 at 79–85.) But as discussed
above, this was a reasonable inference that could be drawn from the evidence and therefore
not improper. See Young, 470 U.S. at 8 & n. 5; United States v. Younger, 398 F.3d 1179,
1190 (9th Cir. 2005) (“It is not misconduct for the prosecutor to argue reasonable
inferences based on the record.”) (quotation omitted). Any objection to the prosecutor’s
argument would have been futile, and trial counsel was not ineffective for failing to object.
See Juan H., 408 F.3d at 1273.
Morris alleges the prosecutor also made several misleading statements about the
circumstances surrounding Davis’s death. (Doc. 21 at 85–86.) First, Morris alleges the
prosecutor’s description of Dr. Horn’s testimony was misleading. In closing arguments,
the prosecutor explained Dr. Horn could not say at first whether Davis was strangled
because he didn’t have all of the evidence and facts before him, recalling the testimony in
Dr. Horn’s voice for the jurors the prosecutor stated:
All I had was a body that had been dumped in an alley. That was suspicious
to me, because, you know, a body just doesn’t appear in alleys, especially
when they’re nude, and bodies don’t appear in this condition where they’re
bloated, where the skin is slipping off of the body, without raising suspicion.
(RT 07/05/05 at 74–75.) The prosecutor’s statements were not true, Morris asserts, because
Dr. Horn testified that:
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The fact that she is nude in an alleyway means that she may be a quote,
unquote, drug dump, meaning that somebody may have become intoxicated
in someone’s house and simply dumped in an alleyway, which does happen.
(RT 6/29/05 at 40.) The prosecutor’s statement was not misleading. In addition to the
testimony described above, Dr. Horn testified that “before the toxicology screening,
basically what I had was a decomposed nude body in an alleyway with no visible trauma,
so I pended the cause of death, meaning that I was waiting for the outcome of further testing
and/or investigation.” (Id. at 39.) Dr. Horn explained he could not rule out a homicide
based on the evidence he had; in other words, Dr. Horn considered the death potentially
suspicious. (Id. at 40.) While the prosecutor’s recollection of Dr. Horn’s testimony was
not wholly accurate, it was a reasonable inference based on Dr Horn’s testimony. Any
objection to the prosecutor’s argument, therefore, would have been futile and counsel was
not ineffective for failing to object. See Younger, 398 F.3d at 1190; Juan H., 408 F.3d at
1273.
Morris next alleges the prosecutor mischaracterized DNA evidence by arguing to
the jury during opening statements that Morris’s DNA was found in fingernail scrapings
from both of Davis’s hands. (Doc. 21 at 86) (citing RT 6/13/05 at 69). Though Morris
contends the prosecutor mischaracterized the DNA evidence in order to argue that Davis
attempted to fight off Morris, the prosecutor did not argue any inference from this evidence
during opening statements. During the trial, the DNA expert testified that only the
scrapings from Davis’s left hand matched Morris (RT 6/27/05 at 47–49), but Morris could
not be ruled out as a contributor to the scrapings from her right hand (id. at 53; see also id.
at 80–81). After this testimony, the prosecutor stated during closing argument that the
“DNA profile under both left and right fingernails are, if you will, matched up to the profile
of the defendant. He could not be excluded.” (RT 7/05/05 at 43.) The prosecutor therefore
asserted that Davis was “fighting him.” (Id.) During rebuttal argument, he reiterated that
“the DNA profiles that you have matched and did not exclude the defendant as being the
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contributor of the DNA,” suggesting that “she fought him.” (Id. at 66–67.) During the
aggravation-phase closing argument, the prosecutor stated the “DNA profiles of both
[Davis’s] left and right hand are consistent with the defendant’s DNA profiles.”
The prosecutor’s misstatement during opening statements did not seriously affect
the fairness of the trial. Morris’s DNA was found under the fingernails of one of Davis’s
hands, and he could not be excluded from the other hand, leading to a reasonable inference
that she attempted to fight Morris as the prosecutor suggested during guilt and aggravation
phase closing arguments. The prosecutor corrected his misstatement in closing arguments
by arguing the defendant could not be excluded from the DNA profile. No prejudice
resulted from counsel’s failure to object to the prosecutor’s factual misstatement during
opening arguments or to move for a mistrial. See Ybarra, 656 F.3d at 1000. The fact is
that Morris’s DNA under the fingernails of one of Davis’s hands could lead to the
reasonable inference that she fought him, and evidence from the other hand could not
exclude him. In light of this evidence, the prosecutor’s misstatements did not so infect the
trial with unfairness as to make the resulting conviction a denial of due process, Donnelly,
416 U.S. at 643, or substantially or injuriously affect or influence the verdict. Brecht, 507
U.S. at 638. This is especially true when the jury had just been instructed that “[w]hat is
said in opening statements is not evidence, nor is it argument,” (RT 6/13/05 at 23) and
when Morris admitted to sitting on Davis’s chest and strangling her. No prejudice resulted
from counsel’s failure to object to the prosecutor’s factual misstatement in opening
statements or to move for a mistrial. See Ybarra, 656 F.3d at 1000.
Morris asserts the prosecutor mischaracterized the evidence during his opening
statement at the guilt phase by stating that when the police found Codman’s body they
noticed that her “tongue was coming out, the eyes were popping out, and the head was
darker or blacker than the rest of the body,” which he said was “an indication of
strangulation.” (Doc. 21 at 87) (citing RT 6/13/05 at 64). The prosecutor also stated that
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when the police discovered Codman she “appeared to have been strangled,” but the
“problem was that the fact of decomposition eradicates the cause.” (Id. at 64.)
This mischaracterized the actual evidence, Morris argues, because Dr. Hu testified
that in his opinion Codman’s protruding tongue and bulging eyes were the result of
postmortem decomposition from gas formation. (RT 6/28/05 at 33, 50.) But Dr. Hu also
testified that the fact that Codman’s head was more decomposed than the rest of her body
was consistent with, but not a definitive indication of, strangulation. (Id. at 33–34, 50.)
Although the post-mortem condition of Codman’s tongue, eyes, and head were
gruesome, the prosecutor did not misstate them – his description was accurate. And his
suggestion that their condition suggested strangulation was not unduly prejudicial because
strangulation was not materially in dispute – Morris himself admitted killing Codman by
strangulation. Further, the jury was instructed that “[w]hat is said in opening statements is
not evidence[.]” (RT 6/13/05 at 23). In short, the prosecutor’s misstatement did not so
infect the trial with unfairness that the conviction was a denial of due process, nor did it
substantially or injuriously affect or influence the verdict. See Donnelly, 416 U.S. at 643;
Brecht, 507 U.S. at 638. As a result, no prejudice resulted from counsel’s failure to object.
See Ybarra, 656 F.3d at 1000.
Morris alleges the prosecutor mistakenly attributed the description of Codman as
the “pretty one” to Morris instead of the detective. (Doc. 21 at 87–88) (citing RT 6/13/05
at 57; 7/05/05 at 33); see also (PCR Pet. Ex. O at Bates No. 576) (detective stating to
Morris, after showing Morris Codman’s picture for identification, that Codman was the
“First one. Pretty girl.”). The prosecutor argued that this supported a finding that the
murder was heinous and depraved because Morris “was relishing” that “she was the pretty
one.”20 (RT 7/12/05 at 25.)
20 As the jury was instructed (see RT 07/12/05 at 85), a finding that Morris relished
the murder was one factor that could establish the state of mind necessary to support a
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This misstatement did not infect the trial with unfairness or substantially or
injuriously affect the verdict. See Donnelly, 416 U.S. at 643; Brecht, 507 U.S. at 638. The
video of Morris’s interview with police was played for the jury and showed it was the
detective, not Morris, who referred to Codman as the pretty girl. (PCR Pet. Ex. at 113.)
As already noted, the trial judge instructed the jury that the prosecutor’s statements were
not evidence. (RT 7/05/05 at 3.) Additionally, as the Arizona Supreme Court found, there
was overwhelming evidence of cruelty, which alone is sufficient to establish the (F)(6)
aggravator. Morris, 215 Ariz. at 337, 160 P.3d at 216. No prejudice resulted from
counsel’s failure to object to the prosecutor’s factual misstatements or to move for a
mistrial. See Ybarra, 656 F.3d at 1000.
Morris alleges the prosecutor falsely implied that Morris was aware of Noah’s
intellectual disability, and then relied on that assumption to argue during the guilt phase
that, “it just is so unseemly to take a woman who is mentally retarded and bring her over
to a camper knowing full well that you’re going to kill her[.]” (Doc. 21 at 88) (citing RT
07/05 at 48). Morris also alleges the prosecutor made several factually incorrect statements
during the guilt and aggravation phases that Noah was “chronologically” a 12-year-old,
(Doc. 21 at 89) (citing RT 07/05/05 at 24–25, 48–49, 104, 106), and then argued during
the aggravation phase that he relished the killing of Noah because “[h]e mutilated what
was, in essence, I guess, somebody who was chronologically the age of 12,” (id.) (citing
RT 7/12/05 at 106).
It is unlikely the prosecutor’s statements confused the jury. Noah’s sister testified
during trial that Noah was “about 10 to 11 years old mentally.” (RT 6/20/05 at 59.) The
jury saw photos of Noah, a woman, (see RT 6/20/05 at 38) (admitting Trial Exhibit 254, a
picture of Noah’s body; see also RT 7/12/05 at 31 (exhibiting pictures of Noah as a child
and “when she’s older”) and heard that she had been placed in an “adult home” (see RT
finding of heinousness or depravity. See State v. Moody, 208 P.3d 424, 472 (2004) (citing
State v. Gretzler, 135 Ariz. 42, 52, 650 P.2d 1, 11 (1983)).
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7/12/05 at 33). Thus, even if the prosecutor misspoke in the penalty-phase closing that
Noah was “chronologically” the age of 12 instead of “mentally” the age of 12, the jury had
evidence that Noah was a woman with a 12-year-old mental capacity. And even if it the
jury could have understood the prosecutor to be suggesting that Morris knew of the victim’s
mental incapacity – something that is not clear from the transcript – the court instructed
the jury that the prosecutor’s statements were not evidence. (RT 7/05/05 at 3); see Johnson,
63 F.3d at 930 (jury instructions can cure questionable remarks). This conduct by the
prosecutor did not infect the trial with unfairness or substantially or injuriously affect the
verdict. See Donnelly, 416 U.S. at 643; Brecht, 507 U.S. at 638. Thus, no prejudice
resulted from trial counsel’s failure to object to the prosecutor’s factual misstatements or
to move for a mistrial. See Ybarra, 656 F.3d at 1000.
Morris alleges the prosecutor improperly vouched for his own witness during
aggravation-phase arguments by employing objectionable “we know” statements:
. . . we also know there was more than that going on, because the medical
examiner, Kevin Horn, told you so. He indicated in the anal area, if you’re
looking at it as if the face of a clock, that all the way around her anus were
lacerations or bruising through trauma.
(Doc. 21 at 80–81) (quoting RT 7/12/05 at 37) (emphasis added). Morris asserts the
improper vouching was repeated during closing argument:
And you also know that the medical examiner . . . Kevin Horn, told you that
in her anus all around the face of the clock, one of the things you see are
lacerations or contusions or abrasions, however you want to call it.
(Id. at 81) (quoting RT 7/12/05 at 109) (emphasis added)); see also (RT 7/12/05 at 93–94,
99–105, 107, 109–14). Morris contends the Ninth Circuit has criticized this type of “we
know” statement because it “blurs the line between improper vouching and legitimate
summary.” (Id.) (citing Younger, 398 F.3d at 1191).
Younger did “emphasize that prosecutors should not use ‘we know’ statements in
closing argument.” 398 F.3d at 1191. But Younger declined to reverse the appellant’s
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conviction because “the record in this case confirms that the prosecutors used the phrase
‘we know’ to marshal evidence actually admitted at trial and reasonable inferences from
that evidence, not to vouch for witness veracity or suggest that evidence not produced
would support a witness’s statements. The prosecutors’ statements thus were not
improper.” Id. The same is true here. The prosecutor used “we know” statements to
describe evidence actually admitted at trial and reasonable inferences that could be drawn
from that evidence, not evidence the jury never received. (See RT 7/12/05 at 93–94, 99–
101, 103–105, 107, 109–10.) Because this was not improper under Younger, any objection
to the prosecutor’s argument would have been futile.
b. Inappropriate focus on irrelevant and salacious information
Morris alleges the prosecutor inappropriately and improperly focused on “deviant
sexuality . . . despite his inability to provide any evidence in support of these statements.”
(Doc. 21 at 91.) He contends the prosecutor’s intention to sexualize the trial was apparent
from opening statements when he argued that Morris:
killed for his own sexual gratification, and after each kill he wouldn’t get rid
of the body. What he would do, he would just leave it there. He would keep
the body even after the skin would start to slide off. He would keep the body
when it would start to bloat up a little because of the bacterial decomposition,
and he would keep the body because of the smell of rot, smell of
decomposition.
(Id.) (quoting RT 06/13/05 at 38–39). Additionally, Morris notes that the prosecutor
reiterated in his opening that all the victims “share one thing in common. They were
brought over to his camper for the defendant’s sexual gratification.” (Id.) (quoting RT
06/13/05 at 74).
The Court finds no misconduct. There was clear evidence of the sexually deviant
nature of the crimes, in particular that Morris killed each victim while having sex with her
and then did not dispose of the naked bodies of four of the women until decomposition
began. Evidence of motive is generally relevant and admissible. See United States v. Allen,
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341 F.3d 870, 886 (9th Cir. 2003); see also State v. Atwood, 171 Ariz. 576, 638, 832 P.2d
593, 655 (1992), overruled on other grounds by State v. Nordstrom, 200 Ariz. 229, 241,
25 P.3d 717, 729 (2001). Because the prosecutor “was not pursing an invalid theory of the
case” but rather was arguing reasonable inferences regarding Morris’s motives, the conduct
was not improper. United States v. Reyes, 660 F.3d 454, 462–63 (9th Cir. 2011).
Morris next contends that the prosecutor improperly focused on graphic details of
the victims’ decomposition when questioning witnesses and during closing arguments in
each phase of the trial, particularly evidence of skin slippage and anal defects. (Doc. 21 at
91–94) (citing RT 6/05/05 at 95–96; RT 6/28/05 at 63, RT 7/05 05 at 14–15, 37–39, 46–
47, 49–50, 52–55, 68; 7/12/05 at 26–27, 35, 38, 95–97; RT 7/18/05 at 128). As discussed
above, the Arizona Supreme Court found that evidence of skin slippage and anal defects
was sufficient to permit the prosecutor to argue the reasonable inference “that Morris
engaged in intercourse with the corpses.” Morris, 215 Ariz. at 336, 160 P.3d at 215. This
evidence was part of the State’s theory of the case. The prosecutor’s arguments were not
baseless or improper. Any objection would have been futile and trial counsel was not
ineffective for failing to object. See Younger, 398 F.3d at 1190; Juan H., 408 F.3d at 1273.
Morris next asserts that the prosecutor “improperly introduced an unfounded
element of sexual deviancy into the proceedings when, during voir dire, he implied to
several prospective jurors – Juror numbers 12, 23, 65 and 73 – that Morris sexually
assaulted the victims. (Doc. 21 at 95) (citing RT 06/07/05 at 61; RT 06/08/05 at 124; RT
06/09/05 a.m. at 4; RT 06/09/05 p.m. at 12). The Court need not determine if the
prosecutor’s conduct in voir dire was improper because his questioning took place during
individual voir dire (see RT 06/06/05 at 2) and none of the jurors identified by Morris were
seated on the jury (see RT 6/13/05 at 16–17). Thus, no member of the jury was exposed
to the alleged misconduct and Morris cannot demonstrate that counsel’s failure to object
was prejudicial. Cf. Dickey, 69 F.4th at 647 (“Establishing prejudice ‘in the context of
juror selection’ requires a ‘showing that, as a result of trial counsel’s failure . . . the jury
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panel contained at least one juror who was biased.’”) (quoting Davis v. Woodford, 384 F.3d
628, 643 (9th Cir. 2004)).
Morris also alleges that throughout the trial the prosecutor focused on evidence that
could have been misinterpreted as being relevant to sexual assault. (Doc. 21 at 95.) For
example, Morris contends the prosecutor referred to the Gamma Hydroxybutyrate (GHB)
found in Noah’s system as the “date rape drug” (RT 6/27/05 at 116) and referred throughout
trial to the use of “rape” or “sexual assault” kits (RT 6/20/05 at 18–19, 42–43; RT 6/29/05
at 15–16).
The prosecutor did not argue that Morris killed the victims while raping or sexually
assaulting them. His arguments that Morris killed the victims while having sex with them
was supported by the evidence introduced at trial, including Morris’s own statements to
the police. The discussion of GHB and “sexual assault kits” were a necessary part of the
case because they were inextricably intertwined with the story of the murders and the facts
of the case.
The medical examiner first commented that GHB was known “as the date rape drug”
(RT 6/20/05 at 115) before the prosecutor echoed the term back to him, asking if Noah died
“from the date rate drug that you also mentioned.” (Id. at 116.) Any question about
whether GHB or the “date rape” drug killed Noah was relevant to refute Morris’s theory
that these women died of drug overdoses, as suggested by Morris’s first statement to the
detective. (RT 7/5/05 at 113.) The prosecutor did not suggest, during questioning or
argument, that Morris administered this drug to Noah for purposes of assaulting her.
Likewise, it was the detective, not the prosecutor, who first referred to the “rape kit”
as a “sexual assault kit.” (RT 6/20/05 at 18.) Moreover, any mention of a “rape kit” or
“sexual assault kit” was relevant to the biological samples taken from Noah’s and
Velasquez’s vaginal areas for DNA testing – samples that were relevant because Morris
maintained he always used a condom. (RT 6/20/05 at 18–19.) It was relevant to inform
the jury how Morris’s semen had been obtained from Noah and Velasquez’s corpses, and
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then matched to Morris’s DNA. See, e.g., Tejera v. McCollum, No. 07-20227-CIV-
MORENO, 2008 WL 5102881, at *15 (S.D. Fla. Nov. 25, 2008) (“[T]he term “rape kit” is
a term of art as used by medical and law enforcement personnel. It does not necessarily
insinuate that a rape actually occurred.”)
Morris fails to establish that these allegedly improper statements had a substantial
and injurious effect or influence on the jury’s verdict. See Brecht, 507 U.S. at 638. The
evidence of his guilt was overwhelming, and the brief references to the “date rape drug”
and “sexual assault” kit were harmless, particularly in light of the evidence as a whole.
The evidence presented and argued by the prosecutor was that each victim came willingly
to Morris’s trailer and willingly engaged in sexual intercourse with him. Even if counsel’s
failure to object to the use of the terms was error, it did not prejudice Morris in light of the
prosecution’s theory of the case and the overwhelming evidence against him. See Morris,
215 Ariz. at 339, 160 P.3d at 218.
c. Appeal to passions and fear.
Morris alleges the prosecutor employed several tactics designed to appeal to the
passions, fears, and vulnerabilities of the jury, including removing Castillo’s jacket from
the packaging, leaving an excluded photograph on top of a pile of papers on his table, and
singling out female jurors and asking them to place themselves in the place of a victim.
(Doc. 21 at 96–99.)
As discussed above, the Arizona Supreme Court rejected these claims on the merits,
finding Morris could not establish prejudice from the “isolated instance of impropriety” –
the singling out of female jurors – because the argument was directed toward proof of
cruelty and the State presented overwhelming evidence of cruelty. Morris, 215 Ariz. at
338, 160 P.3d at 217. Additionally, the court found no misconduct in introducing the jacket
into evidence or in leaving the excluded photograph on his desk. Id. at 338–39, 160 P.3d
at 217–18.
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“[G]iven the overwhelming evidence of Morris’s guilt and of the cruelty of the
murders, the challenged remarks by the prosecutor did not prejudice Morris.” Morris, 215
Ariz. at 339, 160 P.3d at 218. Thus, even if trial counsel had objected to each instance
which Morris believes constituted misconduct, Morris cannot establish that it would likely
have changed the outcome of his case. There was no prosecutorial misconduct that so
infected the trial with unfairness as to make the resulting conviction a denial of due process.
See Donnelly, 416 U.S. at 643.
In summary, the record does not support a finding of prosecutorial misconduct or of
prejudice under Strickland for purposes of overcoming the procedural default of Morris’s
ineffective assistance of trial counsel claim for failure to object to the alleged instances of
prosecutorial misconduct. Morris is not entitled to habeas relief on this defaulted claim.
C. Claims Two and Six (A)
Morris alleges that trial counsel performed ineffectively at the guilt, aggravation,
and penalty phases of his trial (Claims Two (A)–(C) and Claim Six (A)), by failing to
investigate and present evidence rebutting the prosecution’s theory that Morris engaged in
necrophilia (Doc. 21 at 108–35) and failing to challenge the (F)(6) aggravating factor with
expert testimony (id. at 131–33, 226–31). He raised these claims in his PCR petition and
amended petition (ROA 307 at 6–43; ROA 434), and the PCR court rejected them on the
merits. (ROA 354 at 4–5; ROA 438; ROA 491.) The Arizona Supreme Court denied
review without comment.21 (PR 27.)
Applicable Law
Section 2254(d) imposes a “highly deferential standard” that “demands that state-
court decisions be given the benefit of the doubt.” Pinholster, 563 U.S. at 181 (quoting
21 Because the Arizona Supreme Court summarily denied Morris’s petition for state
post-conviction relief, the Court “looks through” to the “last related state-court decision
that does provide a relevant rationale,” Wilson, 584 U.S. at 125, which is the decision of
the PCR court.
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Visciotti, 537 U.S. at 24. “[F]ederal judges are required to afford state courts due respect
by overturning their decisions only when there could be no reasonable dispute that they
were wrong.” Donald, 575 U.S. at 316.
The “backward-looking language” of § 2254(d)(1) “focuses on what a state court
knew and did,” and requires this Court to examine the state-court decision at the time it
was made, limited to the record that was before the state court. Pinholster, 563 U.S. at
181–82 (2011) (quoting Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003)); Twyford, 596
U.S. at 819; Gulbrandson, 738 F.3d at 993 n.6. Under § 2254(d)(2), Morris has the burden
of rebutting the state court’s factual findings “by clear and convincing evidence.” Titlow,
571 U.S. at 18 (quoting 28 U.S.C. § 2254(e)(1)). A “state-court factual determination is
not unreasonable merely because the federal habeas court would have reached a different
conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010).
Under Strickland, “the defendant must show that counsel’s representation fell below
an objective standard of reasonableness.” 466 U.S. at 688. Evaluation of counsel’s
performance “must be highly deferential,” to “eliminate the distorting effects of hindsight.”
Id. at 689; see also Cone, 535 U.S. at 702. The Court must “indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689.
When the Strickland and AEDPA standards “apply in tandem,” Richter, 562 U.S. at
105, the Court’s review becomes “doubly deferential,” Knowles v. Mirzayance, 556 U.S.
111, 123 (2009); see also Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (per curiam). In
particular, the Court “must guard against the danger of equating unreasonableness under
Strickland with unreasonableness under § 2254(d).” Richter, 562 U.S. at 105. To evaluate
deficiency in a case governed by AEDPA, the Court asks “whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Id.
/ / /
/ / /
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Claim Two (A): Guilt Phase
Morris alleges trial counsel failed to investigate, develop, and present evidence to
rebut the necrophilia theory at the guilt phase of his trial. (Doc. 21 at 122.) Specifically,
Morris alleges counsel failed to consult with and present a mental health expert to testify
that Morris was not a necrophile, and failed to consult with and present a pathologist to
rebut the physical bases of the prosecutor’s argument. (Id.)
This claim is exhausted. Morris filed a PCR petition alleging counsel failed to use
experts to defend against the necrophilia allegations and to support his claim that the
killings were a result of Morris’s desire to engage in erotic asphyxiation. (ROA 307 at 33–
43.) Morris alleged in his PCR petition that there was a reasonable likelihood the jury
would have found him guilty only of second-degree murder if counsel had presented an
expert regarding necrophilia. (Id. at 42.) He also alleged the defense team should have
hired a pathologist to review the State’s evidence from the autopsies. (Id. at 25.)
After the trial court granted an evidentiary hearing on Morris’s assertion “that
counsel should have presented expert testimony in the penalty phase to disprove the
necrophilia theory for the killings” (ROA 354 at 5), Morris requested that the court expand
the scope of the hearing to include claims of “ineffectiveness for not using expert witnesses
to defend the State’s necrophilia theory” during the guilt and aggravation phases of trial.
(ROA 385.) The court denied the request, explaining that the “PCR ruling was clear that
the only colorable claim was trial counsel’s alleged failure to present expert testimony in
the [penalty] phase.” (ROA 402, as corrected by ROA 404.)22
22 On March 16-19 and 24, 2015, the PCR court held an evidentiary hearing on
whether trial counsel was ineffective for failing to present “expert testimony in the penalty
phase to disprove the State’s necrophilia theory for the killings.” (ROA 354 at 11.) Morris
presented testimony from pathologist Dr. David Posey; psychologist Dr. Richard Lanyon;
psychologist Dr. Judith Becker; expert counsel Richard Bock; trial counsel Randall Craig
and James Logan; trial mitigation specialist Linda Thomas; and original counsel Maria
Schaffer. (RTs 3/16/15–3/19/15, and 3/24/15; see also (ROA 495–98).) Additionally, the
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Morris was granted leave to file an amended PCR petition urging the court to find
trial counsel ineffective for failing to present expert testimony in the guilt and aggravation
phases of trial to disprove the State’s necrophilia theory for the killings. (ROA 434; ROA
438.) The PCR court subsequently dismissed the claims. (ROA 438.)
The court first noted that the necrophilia assertions during trial were limited to
arguments made by the prosecutor, and that the Arizona Supreme Court found on direct
appeal that the inferences of necrophilia were permissible. Given this finding, the PCR
court concluded that “[t]rial counsel reasonably assessed the lack of evidence of
necrophilia and determined to counter the State’s allegations with argument rather than
evidence.” (Id. at 3.) The PCR court further explained:
The trial court instructed the jury that argument of counsel was not evidence.
. . . Calling an expert had the potential to highlight, and perhaps legitimize
the necrophilia claim and would have opened the door to potentially-
damaging cross-examination, such as whether defendant’s behaviors were
“consistent with” necrophilia, giving the necrophilia claim additional
credibility. Not calling an expert, had one even been available, permitted
trial counsel to downplay the allegation as “mere argument” rather than
having to dispute evidence offered by him.
(Id.) The PCR court also found Morris failed to establish prejudice in the guilt phase
because, as the Arizona Supreme Court found, “the evidence proving defendant’s guilt was
‘overwhelming.’” (Id.) (citing Morris, 215 Ariz. at 339, 160 P.3d at 218).
Morris asserts that the PCR court’s prejudice ruling as to the guilt phase was
contrary to or an unreasonable application of Strickland because the court deferred to the
Arizona Supreme Court’s determination on direct appeal that the evidence of Morris’s guilt
was overwhelming without the benefit of the evidence PCR counsel presented to the PCR
court that rebutted necrophilia. (Doc. 21 at 130–31.)
parties proffered, and the court considered, expert reports from psychiatrists Dr. Steven Pitt
and Dr. Park Dietz. (ROA 491 at 7.) On April 29, 2015, the trial court issued a detailed
ruling finding that Morris’s trial counsel was not ineffective in the penalty phase for not
securing expert testimony regarding necrophilia. (Id.)
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As discussed above in Claim One, in ruling on Morris’s prosecutorial misconduct
claim, the Arizona Supreme Court found the evidence of guilt overwhelming. See Morris,
215 Ariz. at 335–39, 160 P.3d at 214–18. The court had also determined, however, that
the prosecutor’s remarks regarding necrophilia “were directed only toward establishing the
‘heinous or depraved’ prong” of the (F)(6) aggravator. Id. at 336, 160 P.3d at 215. It is
not clear, therefore, whether the Arizona Supreme Court considered the evidence of
necrophilia in support of the element of premeditation when it made its finding. Regardless
of whether this was an “error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement,” Richter, 562 U.S. at 103, the claim is
meritless on de novo review.
The PCR court rightly found – after hearing Morris’s evidence on the necrophilia
issue – that trial counsel was not deficient in failing to call a necrophilia expert in the
penalty phase. The prosecution presented no necrophilia expert in either the guilt or the
penalty phase of trial, and it would not have been unreasonable for trial counsel to conclude
that the safest course was to address the issue through cross-examination of the witnesses
who were called and by noting that the necrophilia claim was simply prosecutorial
argument. Calling a defense expert on necrophilia risked legitimizing the necrophilia claim
through the prosecutor’s cross-examination on evidence in this case that comports with
necrophilia – five women died while having sex with Defendant, he retained at least some
of the corpses for a period of time after their deaths, his semen was found in victims even
though he claimed to have used a condom, and there was physical evidence (skin slippage
and anal injuries) that could be consistent with acts of necrophilia.
When evaluating the adequacy of trial counsel’s action, there is a “presumption that,
under the circumstances, the challenged action might be considered sound trial strategy.”
Strickland, 466 U.S. at 689 (citation modified). Deficient performance “requires 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. Even under de novo
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review, the standard for judging counsel’s representation is a deferential one. Richter at
105. The Court cannot find trial counsel was deficient in failing to call a necrophilia
expert.23
Nor can Morris satisfy the prejudice prong of Strickland. As noted above, “the
question is whether there is a reasonable probability that, absent the errors, the factfinder
would have had a reasonable doubt respecting guilt.” Strickland, 466 U.S. at 695. In
answering that question, a reviewing court necessarily considers the strength of the state’s
case. See Allen, 395 F.3d at 999 (“[E]ven if counsel’s conduct was arguably deficient, in
light of the overwhelming evidence of guilt, [the petitioner] cannot establish prejudice”);
Johnson v. Baldwin (Albert Johnson), 114 F.3d 835, 839–40 (9th Cir. 1997) (explaining
that the “potential prejudicial effect of counsel’s deficient performance must be evaluated
in light of” the strength of the State’s case); United States v. Harden, 846 F.2d 1229, 1232
(9th Cir. 1988) (finding no Strickland prejudice where there was overwhelming evidence
of guilt); see also 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.”).
Morris asserts that necrophilia was the prosecution’s theory of premeditation and,
if that theory had been undermined, there is a reasonable probability that one juror would
not have voted for first-degree murder. (Doc. 21 at 126.) To prove first-degree murder by
premeditation, the State had to prove that Morris caused the victim’s deaths, that he
intended or knew that he would cause their deaths, and that he acted with premeditation.
(RT 7/5/05 at 9–10.) “To prove premeditation, the state must show that a defendant
intended to kill another person, and ‘after forming that intent . . . reflected on the decision
before killing.’” State v. VanWinkle, 230 Ariz. 387, 391–92, 285 P.3d 308, 312–13 (2012)
23 As noted above in footnote 11, Morris requests an evidentiary hearing in this case,
but provides only unsupported allegations insufficient to warrant such a hearing.
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(quoting State v. Thompson, 204 Ariz. 471, 479, 65 P.3d 420, 428 (2003)). “Circumstantial
evidence may establish that the defendant reflected on the killing.” Id. at 391–92, 285 P.3d
at 312–13 (citing Thompson, 204 Ariz. at 480, 65 P.3d at 429).
Necrophilia could be reasonably inferred from the evidence as discussed above, but
it was not the only evidence of premeditation. The prosecutor argued that once each victim
was unconscious, “[Morris] could have either moved his hands away, he could have
removed the ligature from their neck. But he chose not to.” (RT 07/05/05 at 15.) The
evidence clearly supported this assertion. First, Morris admitted that he strangled each
victim. Second, the medical examiner testified that after a victim is rendered unconscious
by strangulation, brain damage takes another three to six minutes of sustained pressure,
with death ensuing a short time thereafter. (RT 6/15/05 at 86; see also RT 6/27/05 at 112–
13 (testimony of Dr. Keen that irreversible brain damage almost always occurs within a
five to eight minute period before death occurs)). This was ample evidence for a jury to
conclude that Morris acted with premeditation – that he maintained pressure on the
unconscious victims’ necks until they were dead. See State v. Ellison, 213 Ariz. 116, 134,
140 P.3d 899, 917 (2006) (evidence that suffocation takes several minutes indicative of
premeditation); Thompson, 204 Ariz. at 479, 65 P.3d at 428 (noting the “state may argue
that the passage of time suggests premeditation”); VanWinkle, 230 Ariz. at 392, 285 P.3d
313 (“prolonged, brutal attack” including strangulation was evidence of premeditation);
see e.g., State v. Bondy, 2018 WL 4927923 *1 (Ariz. App. 2018) (“The length of time
pressure had to be applied to the victim’s neck for death to occur would permit a reasonable
jury to conclude [the defendant] had reflected on his decision to murder the victim.”); State
v. Villa, 2011 WL 486907 *4 (Ariz. App. 2011) (“The medical examiner concluded [the
victim] had been strangled and opined her death could have taken several minutes, a fact
the jury could consider as evidence of premeditation.”); see also State v. Scott, 271 Kan
103, 108–09, 21 P.3d 516, 522–23 (2001) (“[C]ontinued application of pressure over a
period of time is sufficient for a jury to find that [the decedent’s] death was premeditated.”).
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Further, as discussed in Claim Four (C) below, the evidence of five similar
strangulation deaths strongly negated the defense theory that the killings were accidental,
either as a result of drug overdose or erotic asphyxiation. Five comparable strangulation
deaths by a single defendant strongly suggest deliberate and premeditated actions by
Morris. See e.g., State v. Lee, 189 Ariz. 590, 599, 944 P.2d 1204, 1213 (1997) (finding the
“unlikeliness” of defendant’s claim that he was forced on two separate occasions to shoot
his robbery victims because they attacked him “tends to show that neither shooting was
accidental”); State v. Hernandez, 7 Ariz. App. 200, 203, 437 P.2d 952, 955 (1968)
(reasoning that one incident “may have been accidental would be a likely possibility, but
that two such instances were coincidental is substantially less likely”) abrogated on other
grounds by State v. Harvill, 106 Ariz. 386, 391, 476 P.2d 841, 846 (1970); cf. People v.
Steele, 27 Cal. 4th 1230, 1244–45, 47 P.3d 225, 234 (2002) (“The fact that defendant killed
twice under similar circumstances is logically probative of whether the second killing was
premeditated even if no independent evidence existed that the first killing was itself
premeditated.”); Young v. Gipson, 163 F.Supp.3d 647, 728 (N.D. Cal. 2015) (finding
defendant’s multiple killings over a period of time “showed a distinct pattern” from which
the jury could infer motive and a “premeditated and deliberate manner of killing”).
What is more, “the evidence suggests that at least three of the victims struggled with
Morris before losing consciousness: Morris’s DNA was under Davis’s fingernails, Noah’s
fingernails were broken, and the side of Velasquez’s face was bruised,” Morris, 215 Ariz.
at 338, 160 P.3d at 217. This evidence rebuts any suggestion the killings were accidental.
But this is not all. Morris’s actions after each murder support a finding of
premeditation. See State v. Nelson, 229 Ariz. 180, 185, 273 P.3d 632, 637 (2012) (“A
defendant’s actions after a murder can also help establish premeditation.”). As the
prosecutor argued regarding the death of Codman, if her death had truly been an accident,
Morris could have used his aunt’s phone to call 911, but did not do so. (RT 07/05/05 at
37.) There is no evidence Morris attempted to aid any of the victims. Instead, Morris
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concealed the deaths by removing the victims’ bodies from his camper and dragging them
into the alley, and then providing inconsistent accounts to the police about his role in each
death. See, e.g., State v. Beard, 273 Kan. 789, 804, 46 P.3d 1185, 1195 (2002) (noting that
providing inconsistent statements to the police is suggestive of premeditation); Wyatt v.
Sutton, 838 F. App’x 266, 267–68 (9th Cir. 2020) (unreported) (“The jury could also have
reasonably concluded that Wyatt’s additional actions – not immediately seeking aid after
he stabbed Nobles, waiting twelve hours with Nobles’s corpse before dumping the body at
a time least likely to be seen, and lying to others (including the police) – all further evince
that Wyatt’s conduct was not merely the product of rash impulse.”).
Morris presents no persuasive argument that this overwhelming evidence was
insufficient for the jury to find his offenses premeditated, even without the necrophilia
theory. Morris has not met “the highly demanding and heavy burden [of] establishing
actual prejudice,” Allen, 395 F.3d at 1000, by showing there was a reasonable probability
he would not have been convicted if counsel had presented expert testimony to rebut the
State’s theory of necrophilia.
Morris further alleges the PCR court unreasonably applied clearly established law
by failing to consider whether the alleged deficiencies of counsel at the guilt phase
prejudiced him at the penalty phase. (Doc. 21 at 131, 134.) But because Morris fails to
establish on de novo review that his counsel’s failure to call a necrophilia expert – at any
time during the trial – was deficient or prejudicial under Strickland, he also fails to show
that the state court’s decision regarding penalty-phase prejudice – where he relies on the
same decision by trial counsel – was unreasonable.
As noted above, the PCR court held an evidentiary hearing and took evidence
regarding counsel’s performance during the penalty phase of trial, specifically considering
whether counsel’s decision to challenge the State’s witnesses through cross-examination
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rather than expert testimony prejudiced Morris at the penalty phase.24 The PCR court found
that trial counsel consulted with several different experts and another experienced trial
lawyer before trial, and ultimately decided to use the State’s witnesses to discredit their
own testimony through cross-examination. (ROA 491 at 4–6.)25 The PCR court also
evaluated the testimony of several experts called by Morris during the PCR hearing and
found their testimony, if it had been presented at trial, would have been problematic for
various reasons. (ROA 491 at 7) (“Although each of the defense experts concluded that
the defendant did not meet the diagnosis for necrophilia, which the defendant claims is
mitigating and should have been used at sentencing, each of the expert’s testimony presents
significant concerns for the defense – testimony that would not be mitigating.”).26 The
PCR court found counsel “conducted an appropriate and focused cross-examination of the
State’s experts.” (ROA 491 at 12). The state court’s denial of this aspect of the claim was
not “so obviously wrong as to be ‘beyond any possibility for fairminded disagreement.’”
Kayer, 592 U.S. at 124 (quoting Richter, 562 U.S. at 102, 103).
In sum, on de novo review of the claim alleging guilt-phase prejudice, the Court
finds that none of Morris’s arguments or PCR evidence is sufficient to satisfy Strickland’s
demanding standards for deficiency and prejudice. Additionally, he has failed to show the
24 This decision is the subject of Claim Two (C), reviewed below.
25 Trial counsel testified at the PCR hearing that this was his strategy. (ROA 491 at
12-14.)
26 For example, Dr. Becker “discounted the defendant’s version of events in which
he stated that his victims requested that he choke them, because the victims cannot confirm
that they requested the choking and because it is unlikely that prostitutes would request
such an activity.” (ROA 491 at 6.) Other PCR experts had doubts about Morris’s
truthfulness regarding the murders, and Morris refused to cooperate with some experts.
The PCR court found that defense counsel could not have kept the expert’s negative
opinions out of evidence if he had called them to testify at trial. (ROA 491 at 7-8.) After
reviewing all the evidence, the PCR court found that “trial counsel made a reasonable,
strategic decision not to consult with additional experts.” (ROA 491 at 14).
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state court’s decision denying the portion of the claim alleging penalty-phase prejudice was
unreasonable. Claim Two (A) is denied.
Claim Two (B) and Six(A): Aggravation Phase
Morris alleges that counsel performed ineffectively by failing to hire a mental health
specialist to testify that Morris was not a necrophile or a pathologist to show that the
physical evidence did not support necrophilia, despite counsel’s awareness that if they did
not rebut the necrophilia theory at the aggravation phase the State would easily establish
the (F)(6) aggravating factor. (Doc. 21 at 132, 226); see A.R.S. § 13-703(F)(6). Morris
contends that expert testimony would have undermined the prosecutor’s necrophilia
theory, which was the basis for the finding that the crimes were heinous or depraved. (Id.
at 133, 226.)
Morris also alleges that counsel performed ineffectively in the aggravation phase by
failing to challenge the (F)(6) cruelty factor with expert testimony. (Doc. 21 at 226.)
Specifically, Morris asserts defense counsel called no expert witnesses to undermine the
prosecutor’s arguments that the victims experienced pain and mental anguish while being
strangled. (Id.) Morris contends that expert testimony could have shown the victims were
most likely conscious for mere seconds, if at all, and that if they were conscious, they were
under the influence of drugs to the extent that they were not aware of what was occurring.
(Id. at 228.)
Morris contends there is a reasonable probability that if counsel presented expert
testimony at the aggravation phase of his trial, at least one juror would have voted against
the (F)(6) aggravating factor. (Id. at 133, 226, 229.)
Additionally, he claims that even if the (F)(6) factor was found, the testimony of an
expert would have held particular sway with the jury and there is a reasonable probability
of a different outcome at the penalty phase if counsel had not performed deficiently at the
aggravation phase. (Id. at 133.)
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These claims are exhausted. Morris alleged in his PCR petition that if counsel had
presented a mental health expert regarding necrophilia it would have significantly
improved his defense against the heinous or depraved aggravating factor. (ROA 307 at
42.) Morris also alleged that a qualified pathologist would have enabled his attorneys to
effectively defend him against the (F)(6) aggravator. (ROA 307 at 25.)
During the PCR proceedings in state court, Morris’s subsequent request to expand
the scope of the evidentiary hearing to include claims of “ineffectiveness for not using
expert witnesses to defend the State’s necrophilia theory” during the aggravation phase of
trial (ROA 385) was denied. (ROA 402, as corrected by ROA 404.) Morris was granted
leave to file an amended PCR petition urging the court to find trial counsel ineffective for
failing to present expert testimony in the aggravation phase. (ROA 434, 438.) The PCR
court dismissed the claim. (ROA 438.)
Additional Background
The prosecutor relied on the evidence presented during the guilt phase of the trial
and the testimony of Dr. Keen during the aggravation phase to argue that the “especially
cruel” and “heinous or depraved” prongs of the (F)(6) factor were demonstrated in each of
the murders. (See RT 7/12/05 at 21–39, 90–110.) The prosecutor argued that the murders
were cruel because the victims experienced pain and mental anguish while being strangled,
and the killings were especially heinous or depraved because Morris relished killing all of
the victims and needlessly mutilated four of their bodies through postmortem sexual
intercourse. (Id. at 22–39, 91–110.)
Defense counsel asserted in his opening statement that there was no evidence of
cruelty and the prosecutor’s argument was “speculative and based on opinion.” (RT
07/12/05 at 40.) He argued “[t]here was absolutely no evidence presented that [Morris]
did any kind of relishment [sic] or that he enjoyed any kind of sex after death. Again, these
are conclusory statements presented by the State.” (Id. at 41.)
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Dr. Keen was the only witness presented during the aggravation phase. Regarding
the heinous or depraved prong, Dr. Keen testified, reviewing a photograph of Noah, that it
“takes friction to cause that skin to slip” and that the picture the prosecutor submitted
evidenced skin slippage. (Id. at 59–60.)
Dr. Keen also testified about the mechanics of strangulation and other hypothetical
situations, including opinions based on the prosecutor’s submission of photographs of
some of the victims. Dr. Keen testified that strangulation victims perceive a feeling of
shortness of breath or an inability to breath while they are conscious. (Id. at 43–44.) Dr.
Keen testified that the sensory functions of a person being strangled from behind by a
necktie would remain intact until the central nervous system shuts them down; in other
words, a person would have the capacity to think, see, hear, smell, and experience pain for
up to two minutes before passing out. (Id. at 47–48, 58, 69.) In a situation where a heavy
individual is lying on the chest of a person while also strangling that person with a ligature,
the time to unconsciousness is variable, but Dr. Keen testified he would expect it to be
shorter than in the previous hypothetical. (Id. at 51–54.) Dr. Keen further opined that,
depending on the placement of a person’s hands, manual strangulation can result in a
person passing out “rather quickly,” but “it’s kind of hard to say” and could be as much as
two minutes initially. (Id. at 57–58.) Use of a strap instead of a necktie would make no
difference as far as the mechanism of strangling, and the period of time a person might stay
conscious “could be as short as less than a minute up to a couple of minutes or more.” (Id.
at 60–61.) On cross-examination by defense counsel, Dr. Keen testified that he could not
tell when any of the victims fell into unconsciousness, and that the introduction of drugs
might be a factor which could hasten unconsciousness. (Id. at 72–73.)
In closing, defense counsel argued that there was no evidence of postmortem sex or
that Morris enjoyed having the bodies of the victims near him, and that it was unknown
when the skin slippage occurred or if it was from the bodies being dragged. (Id. at 117,
122, 124.) He also argued, based on Dr. Keen’s testimony, that there was no way to know
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how long consciousness lasts or when the victims fell into unconsciousness, and that each
victim had “toxicity levels” of drugs in her system. (Id. at 118–20.) He argued there was
no trauma at all associated with three of the victims’ deaths. (Id. at 119–20.)
The jury found Morris committed all five murders in both an “especially cruel” and
“especially heinous or depraved” manner. (RT 0713/05 at 9–15.) For all the victims, the
jury found that Morris relished the murders and inflicted gratuitous violence on the victims
beyond that necessary to kill. (Id.) For all the victims except Jade Velasquez, the jury
found that Morris needlessly mutilated the bodies. (Id.)
In his PCR petition, Morris argued that his “trial attorneys did absolutely no
investigation of their own to offer a defense to any of the State’s theories and claims that
the murders were especially cruel and heinous or depraved.” (ROA 307 at 8.) Morris
alleged that a “qualified pathologist would have enabled [Morris’s] lawyers to effectively
defend him” against the State’s allegations, especially the (F)(6) aggravating factor. (Id.
at 25.) Morris argued that counsel could have used an expert to counter the State’s claims
that any of the five women suffered prior to their deaths and refute the claims that there
was evidence of post-mortem sex or sexual trauma. (Id. at 26.)
Morris relied in the PCR proceeding on a report from pathologist Dr. David Posey
to support his allegations that the victims did not suffer physical or mental pain. (Id.) Dr.
Posey reviewed the autopsy reports, photographs, and laboratory and DNA analysis of all
five victims, as well as investigative files and trial transcripts. (PCR Pet. Ex. Q (“Posey
Orig. Rpt.”) at 1.) Regarding all of the victims, Dr. Posey opined as follows:
• When carotid arteries are occluded by any mechanism, most forensic pathologists
believe it takes approximately 10 seconds to lose consciousness.
• If any of the victims were aware they were being strangled, the maximum they
would have suffered would have been approximately 10 seconds.
• In the absence of physical injuries, antemortem sexual activity whether consensual
or by assault can never be determined from the autopsy findings.
• Postmortem sexual assault cannot be determined by the autopsy.
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• In the absence of “vital reaction,” injuries to the genitalia and anus found at
autopsy are almost always due to decomposition.
• There is no forensic evidence to suggest Morris had ante- or post-mortem anal sex
with any of the decedents.
• Injury may be seen in rough consensual sexual activity.
(Id. at 15–17.) Regarding each victim individually, Dr. Posey opined:
• Codman died from drug intoxication, as there is no evidence of asphyxia or other
cause of death.
• Davis and Velasquez’s deaths should have been undetermined.
• Noah and Castillo died from asphyxia due to strangulation.
• There were no defense wounds or injuries to suggest any of the victims were in a
struggle or altercation at the time of their death.
• Velasquez, Noah, and Castillo were either semiconscious or unconscious, and in
the event they were strangled, they were not aware of what was happening to
them.
(Id. at 8–10, 12, 13–16.)
Morris also relied in the PCR proceeding on the reports of several mental health
experts – Dr. Judith Becker, a psychologist, Dr. James Sullivan, a forensic
neuropsychologist, Dr. Park Dietz, a forensic psychiatrist, and Dr. Richard Lanyon, a
psychologist27 – to support his assertion that he was not a necrophiliac and did not commit
necrophilic homicide, but rather choked the women to cause “extreme sexual arousal.”
(ROA 307 at 34–42.)
The PCR court applied the two-prong Strickland test in analyzing and denying each
component of this claim. (ROA 354 at 3; ROA 438 at 3–4.) The court first denied the
cruelty allegations, explaining that proper analysis of the claim challenging the cruelty
factor “requires an examination of the totality of the circumstances surrounding the murder
and not just the final act that killed the victim.” (ROA 354 at 5) (citing Schackart, 190
Ariz. 238, 947 P.2d 315). “Given the evidence presented by the State,” the PCR court
27 These opinions are discussed in greater detail in Claim Two (C), below.
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determined that Morris had “failed to show his counsel was deficient for failing to obtain
and present testimony from his own pathologist in the aggravation phase.” (Id. at 5.)
Addressing Dr. Posey’s report, the court explained:
Although defendant’s PCR pathologist states that “none of the victims would
have suffered more than 10 seconds if they suffered at all,” ([PCR Pet. Ex.]
Q, p.17), his opinion ignores evidence of strangulation and struggles by some
of the victims. In addition, even the 10-second time period is sufficient to
establish cruelty. See, State v. Herrera, 176 Ariz. 21, 859 P.2d 131 (1993)
(18 seconds sufficient to establish cruelty).
(ROA 354 at 5.)
In a second order, the court addressed and dismissed Morris’s claim that trial
counsel was ineffective for failing to hire an expert to defend against the prosecutor’s
necrophilia theory in support of the (F)(6) aggravator (ROA 434 at 5–6), finding trial
counsel’s strategic decision to meet the prosecutor’s allegations of necrophilia with
“substantial and focused counter-argument” was entitled to a presumption of
reasonableness, and Morris had “failed to overcome the strong presumption that his
attorneys’ alleged failure to call any experts in the guilt or aggravation phases to explain
necrophilia was sound trial strategy.” (ROA 438 at 2–3.)
The court also found Morris failed to establish prejudice:
Regarding the aggravation phase, the jury found that both prongs of the
(F)(6) aggravator, “cruel” and “heinous and depraved” had been proven.
Arguably, any necrophilia references supported a conclusion that the
“heinous or depraved” prong was established. However, the “cruelty” prong
was also established as to each victim. The Supreme Court specifically found
that the evidence supported this finding. Morris, 215 Ariz. at [341, 160 P.3d
at 220,] ¶80. The jury finding of cruelty alone was sufficient to support a
finding of the (F)(6) aggravator.
Given the overwhelming evidence of defendant’s guilt of five murders, and
the cruelty of each of these murders, the Court finds that defendant has not
demonstrated a reasonable probability that, but for counsel’s allegedly
unprofessional error in failing to call a necrophilia expert, the result of the
aggravation phase proceeding would have been different. A reasonable
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probability is a probability sufficient to undermine confidence in the
outcome. Strickland, 466 U.S. at 694.
(Id. at 3–4.)
Because the Arizona Supreme Court denied Morris’s petition for review without
comment (see PR 7, 27), the last reasoned decision is the PCR court’s.
The Court addresses the prejudice prong of Morris’s claim and the PCR court’s
ruling. See Strickland, 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, which we expect will often be so, that
course should be followed.”).
Heinous and Depraved
Morris asserts the PCR court’s prejudice ruling regarding necrophilia at the
aggravation phase was contrary to or an unreasonable application of Strickland because the
PCR court’s finding that Morris was not prejudiced by counsel’s alleged failures did not
recognize that deficient performance at the aggravation phase resulted in prejudice at the
penalty phase. (Doc. 21 at 130–31.) As discussed in Claim Two (A), above, the PCR court
held an evidentiary hearing and specifically considered whether counsel’s decision to
challenge the State’s witnesses through cross-examination rather than expert testimony
prejudiced Morris at the penalty phase.
The state court found that trial counsel’s strategic decision to undercut the state’s
necrophilia arguments through cross-examination and by noting that it was simply
counsel’s argument did not result in the prejudice required by Strickland. This decision
was not “so obviously wrong as to be ‘beyond any possibility for fairminded
disagreement.’” Kayer, 592 U.S. at 124 (quoting Richter, 562 U.S. at 102, 103).
Morris does not otherwise challenge the PCR court’s prejudice ruling. (See Doc. 21
at 133–34, 230–31.) Because Morris fails to allege, much less demonstrate, that the PCR
court’s determination in regard to counsel’s alleged deficient performance as to the heinous
and depraved prong was unreasonable, he is not entitled to habeas relief.
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Claim Two (B) and Claim Six (A) (necrophilia/heinous or depraved) are denied.
Cruelty
Morris asserts the state court’s ruling that counsel was not ineffective for failing to
challenge the cruelty prong of the (F)(6) aggravating factor was contrary to or an
unreasonable application of clearly established federal law and was based on an
unreasonable determination of facts. (Doc. 21 at 226, 230–31.)
Morris first contends that he is entitled to de novo review of the cruelty prong of
Claim Six (A) because the PCR court’s determination that Dr. Posey’s opinion ignored
evidence of the strangulation and struggles by some of the victims was unreasonable.
(Doc. 21 at 229); see Maxwell v. Roe, 628 F.3d 486, 494–95 (9th Cir. 2010) (“[W]hen a
state court adjudication is based on an antecedent unreasonable determination of fact, we
proceed to consider the petitioner’s related claim de novo.”). Morris also asserts the PCR
court made a credibility determination about the strength of Dr. Posey’s opinion without
the benefit of an evidentiary hearing. (Doc. 229–30.) Finally, Morris argues the PCR
court’s finding is an unreasonable application of federal law because aggravating factors
are required to narrow the class of defendants who are eligible for the death penalty, and
the PCR court’s definition of cruelty would not do so. (Doc. 21 at 230) (citing Lowenfield
v. Phelps, 484 U.S. 231, 244 (1988)).
First, even if counsel performed deficiently in failing to present an expert
pathologist to refute the allegations that any of the victims suffered prior to their deaths,
there is no reasonable probability of a different outcome at the aggravation phase because
the (F)(6) aggravator can be satisfied by the heinous or depraved elements alone. State v.
Newell, 212 Ariz. 389, 405–06, 132 P.3d 833, 849–50 (2006) (citing State v. Gretzler, 135
Ariz. 42, 51, 659 P.2d 1, 10 (1983)).
There is also no reasonable probability of a different outcome at the penalty phase
for reasons this Court explains on Claim Two (C) below. A finding that multiple murders
can constitute an aggravating circumstance carries extraordinary weight. See State v.
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Hampton, 213 Ariz. 167, 185, 140 P.3d 950, 968 (2006) (giving “extraordinary weight” to
(F)(8) multiple murders aggravating circumstance based on the commission of three
homicides); State v. Pandeli, 215 Ariz 514, 533, 161 P.3d 557, 576 (2007) (finding (F)(2)
aggravating circumstance established by evidence of prior conviction for second degree
murder especially “substantial”); State v. Garza, 216 Ariz. 56, 72, 163 P.3d 1006, 1022
(2007) (multiple-homicides aggravator gets “‘extraordinary weight’”); see also Thornell v.
Jones, 602 U.S. 154, 170–71 (2024) (“Jones”) (commenting that the aggravator of multiple
homicides is “given great weight in Arizona”).
The state court’s denial of this aspect of the claim was not “so obviously wrong as
to be ‘beyond any possibility for fairminded disagreement.’” Kayer, 592 U.S. at 124
(quoting Richter, 562 U.S. at 102, 103). Claim Six (A) (cruelty) is denied.
Claim Two (C)
Morris alleges he received ineffective assistance when his trial counsel failed to
investigate, develop, and present evidence at the penalty phase that Morris was not a
necrophile and had not engaged in necrophilia. (Doc. 21 at 135–37.) Morris asserts that,
by the time of the penalty phase, “it was inescapable that the prosecution’s theory was that
Morris engaged in necrophilia. . . . [A]nd a mitigation presentation could not be complete
without refuting and correcting that image.” (Id. at 135.)
Morris raised this claim in his PCR petition (see ROA 307 at 33–43) and the PCR
court held a six-day evidentiary hearing before denying the claim. (See ROA 491.) Morris
asserts the state court’s rejection of the claim involved an unreasonable application of
clearly established federal law and was based on an unreasonable determination of the
facts.
Additional Background—Penalty Phase
On July 20, 2004, approximately one year before trial started, the defense noticed
19 mitigation witnesses. (ROA 63.) The defense ultimately called six witnesses during
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the penalty phase and played recorded statements from another four people. (RT 7/14/05,
RT 7/18/05.) None were expert witnesses.
In opening statements of the penalty phase, the defense told jurors that Morris had
dreams that were not fulfilled due to circumstances beyond his control; that he had been
dealt a “bad hand” in his life. (RT 7/14/05 at 12.) Counsel explained that Morris had a
body odor problem, was born into significant poverty, never really had a father, and had to
take on household responsibilities at a very early age. (Id. at 13–15.) He said Morris was
a “respectful, loving, caring individual,” who, despite the criticism and ridicule he endured
about his body odor and appearance, maintained a group of friends and got involved in
ROTC at school. (Id. at 14, 18–19.) Nonetheless, as counsel explained, Morris despaired.
(Id. at 14, 20.) His despair bred loneliness, and his loneliness “bred behavior.” (Id. at 14.)
Following opening statements, the jury heard victim impact evidence from three
surviving family members—Patina Noah, Jan Velasquez, and G.G. Codman. (RT 7/14/05
at 30–43.) The jury then heard from Morris’s witnesses.
Manssa Muhammed, Morris’s high school acquaintance, testified that Morris was
known as the “fat, ugly, smelly kid” in high school; everyone made fun of Morris because
he was “an easy target” but he never “struck back”; he was quiet, shy, and “invisible”
outside his friend group; Morris’s life was the drill team; and the girls in high school felt
sorry for him and called him “Teddy Bear.” (RT 7/14/05 at 46–54.) Muhammed recalled
one incident where “one of the most beautiful girls” at Morris’s high school played a cruel
joke on Morris by going with him to the Military Ball where she then “ditched” him for
another boy. (Id. at 55–57, 74–75.) Muhammad said, “everyone talked about it” and
Morris had a “break down” at school over it. (Id. at 57–58.)
Will Cummins, Morris’s high school teacher and ROTC instructor, testified that
Morris was an “above-average student,” that he was a very dependable and enthusiastic
participant in the ROTC program, but he was worried about Morris’s hygiene, noting that
the kids called him “Stinky,” and Morris’s uniforms had to be thrown away because of his
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body odor. (Id. at 77–85.) Additionally, Cummins testified that Morris gained 50 pounds
his senior year and he discussed the impact of his weight on the possibility of a military
career. (Id. at 79–80.)
Donald Boone, Morris’s pastor from Oklahoma, testified that Morris was a nice,
polite, and respectful member of his congregation. (Id. at 90–91, 104–05.) Morris enjoyed
ROTC and wore his uniform with pride. (Id. at 95.) A couple of times, Morris initiated
discussions with Boone about how to better himself as a Christian and as a person. (Id. at
92–93.) Boone stated that Morris wanted to be “the best that he could.” (Id. at 93.) Boone
noticed that Morris had a body odor problem and spoke with him about that. (Id. at 91–
100.)
Brandon Morris, Morris’s younger brother, described growing up with Morris with
no adult male figure in the home. (RT 7/18/05 at 2–4.) Brandon testified that his mother
raised them, loved all three of her children, was good to them, and provided a nurturing
home. (Id. at 24.) She worked two jobs, however, and was out of the house from six
o’clock in the morning to ten o’clock at night. (Id. at 4–5.) As a result, Morris watched
his two younger siblings, made all of their meals, and did most of the cooking. (Id. at 5–
6.) Brandon shared a room with Morris and noticed that he perspired a lot and had an odor
problem; despite regular showering and bathing the odor only improved for a couple of
hours and got worse when he gained weight. (Id. at 7–8.) Brandon recounted hearing
students at Morris’s high school talking about Morris, saying things like he smelled like
“fish” and “waste.” (Id. at 9–10.) Brandon also recalled one incident where he and Morris
got into a fight in the front yard of their home and the police were called. (Id. at 11–12.)
Brandon observed that Morris held back his feelings “a whole bunch,” but described him
becoming emotional and visibly upset when discussing the episode at the Military Ball
when a young woman he brought to the ball “disappeared.” (Id. at 13–14.)
Candice Morris-Verbal, Morris’s younger sister, also described growing up with
Morris in much the same way as Brandon. Candice testified that there was no father in
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their home and when their mother worked, Morris would take care of his younger siblings.
(Id. at 37–38.) Candice recalled Morris frequently bathed and showered but had body odor.
(Id. at 41.) Candice did not notice an increase in Morris’s body odor after he gained weight.
(Id. at 41–42.) Candice and Morris both worked at Burger King, and Morris brought the
money he earned home to help the family. (Id. at 42–43.)
Wilma Morris (“Wilma”), Morris’s mother, testified that there was no father figure
in the home, but Morris was a dependable son who never shirked his responsibilities; he
worked to support the family and she relied on him to watch Brandon and Candice while
she was working. (Id. at 57–58.) Wilma first noticed in junior high that Morris had an
odor problem that did not abate with bathing. (Id. at 60–61.) Wilma did not take Morris
to the doctor for the odor problem. (Id. at 74.) When Morris was a senior in high school,
he decided to live with his father, but Wilma testified she was never sure why. (Id. at 66–
67.)
Fred Tanguma was Morris’s manager at Sonic, a fast food restaurant, in Austin,
Texas, from 1996 to 1997. He said Morris was a good young man and a good employee
who also became a good friend. (Trial Ex. 6, July 4, 2005, video submission.)
Laila Pribble said she grew up with Morris and they were really good friends. She
said Morris was a good student, very respectful of everyone, and was the underdog. He
had a lot of responsibility and took care of his siblings. (Trial Ex. 7, undated video
submission.)
Donald McGlory was one of Morris’s and Wilma’s employers. He explained that
the Morrises were an economically deprived but happy family, and that Morris was a good
happy-go-lucky, nice young man who cared about his family. He hired Morris to pick up
trash and sweep and mop, and Morris worked well with a team of six other employees at a
local hospital. He said Morris’s only problem was his body odor, which he discussed with
Morris. (Trial Ex. 19, July 13, 2005, video submission.)
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Lastly, Clareece Masters’s video was played. She was Morris’s high school
vocational business teacher for two-and-a-half years, although she first met him at a
daycare where she worked. She said Morris was very helpful to her in class. She
considered Morris to be quiet, sensitive and insecure, but also well-mannered and a hard
worker. She said he was teased because of his appearance and odor. She also recalled that
Morris took a girl to the ROTC ball but it was a joke, and how tearful Morris was when he
told her about it. (Trial Ex. 20, July 13, 2005 video submission.) The defense then rested.
(RT 7/18/05 at 85.)
After the defense rested, the State called Detective Mike Meislish to testify that
Morris was convicted for felony theft in 2002 for stealing $600 from his employer,
Goodwill Industries. (Id. at 86–87.)
Additional Background—PCR Evidentiary Hearing
At the PCR evidentiary hearing, Morris presented testimony from pathologist Dr.
David Posey; psychologists Dr. Richard Lanyon and Dr. Judith Becker; expert counsel
Richard Bock; trial counsel Randall Craig and James Logan; trial mitigation specialist
Linda Thomas; and original trial counsel Maria Schaffer. (RT 3/16/15 to 3/24/15.)
Additionally, the parties proffered expert reports from psychiatrists Dr. Steven Pitt and Dr.
Park Dietz. (PCR EH Ex. 1; PCR. Ex. Y.)
Dr. Posey testified that he reviewed the autopsy reports, photographs of the bodies
and crime scenes, DNA analysis reports, investigative files, and the medical examiners’
trial transcripts. (RT 3/16/15 at 23–24.) Dr. Posey prepared two reports, the first focusing
on the general subjects of cause and manner of death, including whether there was evidence
of sexual or bodily mutilation, and the second restricted to the issue of postmortem
decomposition, specifically the development of skin slippage and bug infestation. (Id. at
25, 27; see Posey Orig. Rpt.; PCR EH Ex. 6 (Posey Supp. Rpt.)
Dr. Posey testified that, in his original report, dated April 6, 2011, he had opined
there was no evidence of postmortem or antemortem mutilation on any of the bodies. (See
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id. at 26.) In his second report, dated February 14, 2015, he opined that the prosecutor’s
theory, that Morris had postmortem sex with victims Codman, Noah, and Castillo, was
“erroneous” because “skin slippage on all of the victims is what would be expected based
on the state of decomposition when found.” (Posey Supp. Rpt. at 6.) Additionally, Dr.
Posey concluded that in four of the victims (excluding Velasquez), the autopsy disclosed
no trauma of any kind and thus, “with an extremely high degree of medical certainty, anal
sex did not occur either postmortem or antemortem.” (Posey Supp. Rpt. at 9.)
Dr. Posey explained how skin slippage takes place during ordinary decomposition:
[S]kin slippage and blisters first appear on the lower surfaces of the trunk,
thighs, and pendant areas of the body where hypostatic . . . edema has loaded
the tissues with fluid.
These blisters may become pendulous and soon burst either due to the
internal pressure overcoming the tensile strength of the separated epidermis,
from maggot activity, by accidentally touching the blisters during body
movement or any combination [of the] foregoing.
(RT 3/16/15 at 39; Posey Supp. Rpt. at 4.)
Dr. Posey reviewed photographs of Noah’s body showing skin slippage and opined
that it demonstrated “typical skin slippage due to the natural decomposition process” and
was not consistent with rubbing or friction. (Id. at 53–56; see also id. at 149 (opining that
testimony of Drs. Hu and Keen that skin slippage was consistent with rubbing or friction
was “misleading.”)) Dr. Posey opined that the photograph of Noah was also inconsistent
with sexual activity in the postmortem state because he would expect, in those
circumstances, that the fragile skin layers visible in the photograph would be gone and
there would be other damage. (Id. at 58–59.) Dr. Posey testified that he did not see any
evidence that there was “any real true disruption that would be commiserate [sic] with
somebody who was sitting on [the body] or manually assaulting the breast area.” (Id. at
59.) Dr. Posey did not believe there was any room for reasonable disagreement about the
lack of evidence of postmortem trauma. (Id. at 60.)
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Dr. Posey reviewed photographs of Codman’s body and noted that the “tissue paper
thin” layers of skin visible in the photograph that had not been “lifted off” demonstrated
typical postmortem skin slippage due to natural decomposition. (Id. at 63–65; see also id.
at 74; Posey Supplemental Report at 9.)
Dr. Posey, however, could not rule out the possibility that Morris had postmortem
sex with Codman or Noah. (Id. at 120.)
Dr. Posey further opined that the anal defects in the photographs of victim Castillo
appeared to be caused by natural decomposition, specifically maggot activity. (Id. at 89,
94.) Based on the visual characteristics of the wounds, Dr. Posey ruled out both blunt force
injury, such as tears or lacerations, or sharp force injury, such as incision or cutting-type
wounds. (Id. at 88–94, 105.) Dr. Posey opined that characterizing the wounds as trauma
caused by tearing is misleading. (Id. at 94, 152.) Dr. Posey disagreed with the statements
Dr. Horn made during trial attributing the defects to either sexual activity or insect activity,
stating “with a very high degree of medical certainty” that the damage was caused by
“insect[s] only.” (Id. at 135.)
Dr. Lanyon testified that he was hired by Morris’s defense team before trial as a
consultant and was asked to perform a general psychological evaluation of Morris with a
focus on his sexual development and characteristics. (RT 3/16/15 at 164–67, 172–73; RT
3/23/15 at 7.) Dr. Lanyon evaluated Morris in April 2003, spoke to family members,
received information from Morris’s mitigation specialist regarding interviews she had
conducted with family members, and reviewed police reports. (RT 3/16/15 at 169–70,
182–83; RT 3/23/15 at 6–8.) As part of the evaluation, Morris was given tests to determine
whether he was reporting accurately. (RT 03/23/15 at 37–38.) Dr. Lanyon concluded that
Morris “made a significant attempt to present himself in a virtuous light, denying normal
faults and exaggerating virtues.” (Id. at 38.)
Dr. Lanyon conveyed to the defense team that he found no significant psychological
or mental-health-related disability that would explain Morris’s behavior. (RT 3/16/15 at
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173–75; see PCR EH Ex. 5 at 12–33 (Lanyon Rpt.).) Additionally, neuropsychological
testing did not reveal anything suggesting a brain-related basis for his behavior. (Id. at
174.)
Although Dr. Lanyon had experience in conducting psychosexual evaluations, he
had little experience in the more “extreme” or “unusual” forms of serious sexual deviancy
and was puzzled by Morris’s behavior and thought process. (RT 3/16/15 at 175, 177.) At
the request of counsel, Lanyon conducted a review of literature on “serial/sexual murder”
(Lanyon Rpt. at 28; RT 3/16/15 at 174; RT 3/23/15 at 45), but found no evidence that
definitively demonstrated that Morris had “some sort of sexual deviance” or any underlying
mental illness. (RT 3/16/15 at 174–75; RT 3/23/15 at 8.) Dr. Lanyon opined that,
comparing the literature on necrophilia to the literature on serial sexual murder, it appeared
that Morris fit the category of serial sexual murderer rather than necrophiliac. (Lanyon
Rpt. at 33.)
In January 2004, Dr. Lanyon recommended that the defense team consult with a
serial killer expert or an expert in the field of sexual sadism and provided the names of
three potential experts, including Dr. Judith Becker, a leading expert in the area of sexual
deviance. (Id. at 176, 180; RT 3/23/15 at 21–22.) Later, possibly in July 2004, Dr. Lanyon
also recommended that the defense team investigate the possibility of brain abnormality
through neurological imaging. (RT 3/16/15 at 177–78.)
Dr. Becker, a professor of psychology and a forensic psychologist with an emphasis
on psychosexual evaluations related to sexual deviancy, also known as paraphilia, testified
at the hearing. (RT 3/18/15 at 83, 85–86.) Based on a review of her e-mail communications
(see PCR EH Ex. 5 at 55), Dr. Becker verified that she was contacted by Morris’s
mitigation specialist in 2004 about consulting or performing an examination of Morris.
(RT 3/18/15 at 93–95.) In an email communication dated October 25, 2004, Dr. Becker
informed the mitigation specialist that she would be able to begin reviewing collateral
information at the end of November and meet with Morris for the purpose of conducting a
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psychosexual evaluation by early December 2004. (Id. at 97; PCR EH Ex. 5 at 55.) Dr.
Becker did not recall ever informing the defense team that she could not be ready for a
February 14, 2005, trial date if they had asked her to perform an evaluation of Morris. (RT
03/18/15 at 96.)
Dr. Becker had no further contact with the defense team until 2010, when PCR
counsel asked her to perform a psychosexual evaluation of Morris. (Id. at 95, 98.) As part
of her evaluation, she interviewed Morris five times and administered psychological
testing. (Id. at 102; PCR Pet. Ex. T (Becker Rpt.).) Dr. Becker characterized Morris as
mostly cooperative, but noted he did not want to discuss his crimes and tended to
exaggerate and lie to make himself look good. (Id. at 103, 107.)
Dr. Becker also reviewed numerous collateral sources of information, including
police and medical examiner reports, trial transcripts, interviews, school records, medical
history, prison records, photographs of the victims, reports by Dr. Joseph Wu and Dr. James
Sullivan,28 as well as several of Morris’s writings and records that were in Morris’s
possession. (RT 3/18/15 at 102; Becker Rpt., App. A.) She also conducted an interview
with Morris’s mother. (Becker Rpt. at 14.)
Dr. Becker testified that the Personality Assessment Inventory (“PAI”) she
administered to Morris did not result in any kind of psychological or psychiatric diagnosis,
though Morris did exhibit some traits of a Schizotypal Personality Disorder. (RT 3/18/15
28 Morris submitted the opinions of Drs. Wu and Sullivan as exhibits to his PCR
petition. (See PCR Pet. Exs. N, V.) Dr. Wu performed brain imaging scans on Morris and
concluded that the results of testing, together with Morris’s history, are “consistent with a
dual diagnosis of brain injury from head traumas and/or schizoaffective disorder.” (PCR
Pet. Ex. N at 2.) Dr. Sullivan, a forensic neuropsychologist, conducted neuropsychological
testing on Morris and determined that defendants with similar profiles to Morris’s report
relatively few antisocial traits and behaviors and low rates of institutional misconduct.
(PCR Pet. Ex. V at 2.) Dr. Sullivan also opined that Morris’s profiles were subclinical,
suggesting Morris was not experiencing clinically significant psychiatric disturbance or
distress. (Id.)
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at 108; Becker Rpt. at 14–18.) Morris’s scores on the Positive Impression Management
Scale suggest he attempted to portray himself as exceptionally free of shortcomings to
which most people would admit, in other words, he presented himself as having no
problems. (Id. at 109; Becker Rpt. at 14.) Dr. Becker explained that because this called
into question the validity of the PAI clinical scale, additional scales were used to examine
the possibility of malingering. (Id.; Becker Rpt. at 14.) The results of those scales indicated
Morris was being “mildly defensive” in his responses. (Id. at 110; Becker Rpt. at 14.) In
Dr. Becker’s opinion, however, Morris’s evasive answers were not an attempt to hide
necrophilia. (Id. at 170.)
Dr. Becker also administered the Multiphasic Sex Inventory II (“MSI II”). (Id. at
111; Becker Rpt. at 16.) The MSI II addresses a person’s sexual history, sex education,
reported paraphilic behavior, and whether the person admits or denies the acts they have
been charged with. (Id. at 112.)
Dr. Becker explained there are several categories of necrophiles, including
homicidal necrophilies, or individuals “who will kill to obtain a body to be sexual with.”
(RT 3/18/15 at 104.) Dr. Becker opined, however, that Morris did not meet the criteria for
a diagnosis of necrophilia, and she would have been comfortable, based on the material she
reviewed, offering that same opinion in 2004 to 2005. (Id. at 115–17; Becker Rpt. at 18.)
Dr. Becker proposed an alternative diagnosis of erotophonophilia; in other words,
that “Morris is sexually aroused by the act of strangling slash choking . . . lust murder, or
causing physical suffering to the victim.” (Id. at 118; Becker Rpt. at 18.) Dr. Becker based
her suggested alternative diagnosis on the five murder convictions. (Id. at 123.) She did
not definitively diagnosis Morris with erotophonophilia, however, because there was an
absence of evidence that Morris obtained sexual gratification from murdering. Morris
denied having fantasies of erotophonophilia and there was no information from any of his
previous sexual partners that would indicate he engaged in similar sexual acts, such as
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causing pain or humiliation, or strangling/choking as part of sexual pleasure. (Id. at 117–
24; Becker Rpt. at 18–20.)
Finally, Dr. Becker explained the limitations to her evaluation:
The opinions and discussion are based on information this evaluator had
available to her at the time of the evaluation. If in fact Mr. Morris had been
involved with the number of women he reported being involved with it would
have been most helpful to interview them. It also would have been helpful
if Mr. Morris had been more forthcoming in discussing his life and the crimes
[of which] he has been convicted. Another level of difficulty in coming to
firm conclusions in this is Mr. Morris’ propensity to embellish.
(Becker Rpt. at 20; see also RT 3/18/15 at 125.)
Dr. Dietz opined in his August 22, 2011, report that Morris did not meet the criteria
for a diagnosis of necrophilia and that there was insufficient evidence to suggest that he is
a homicidal necrophile or that any of the homicides for which he had been convicted were
necrophilic homicides. (PCR Pet. Ex. Y.) Dr. Pitt, the State’s expert, agreed with Dr.
Becker’s and Dr. Lanyon’s forensic conclusions related to the absence of evidence to
support a diagnosis of necrophilia. (PCR EH Ex.1, Report Re: Forensic Psychiatric
Evaluation.)
After the evidentiary hearing, the PCR court concluded that Morris failed “to
demonstrate that trial counsel’s alleged failure to secure expert testimony . . . showed either
deficient performance or prejudice sufficient to support a claim of ineffective assistance of
counsel; expert testimony about either decomposition or ‘not necrophilia’ would not have
changed the outcome of the penalty phase and confidence in the verdict is not undermined.”
(ROA 491 at 21.) Regarding performance, the court ruled:
“[S]trategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable, and strategic
choices made after less than complete investigation are reasonable precisely
to the extent that reasonable professional judgments support the limitations
on investigation. In other words, counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular
investigations unnecessary. . . .” Strickland, 466 U.S. at 690–691; State v.
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Lee, 142 Ariz. 210, 215, 689 P.2d 153, 158 (1984) (“the decision of what
witnesses to call was counsel’s to make. . . .”).
Trial counsel, however, was unable to locate anyone with the appropriate
expertise despite a nationwide search. Although the defendant claims that
“[n]ot a single expert testified for [his] defense,” this was not the fault of trial
counsel. In December 2004, counsel stated: “In a last ditch desperate effort
to find something to use in mitigation with [defendant], I would like to give
Dr. Potts a shot at the mind of Mr. Morris.” This was after the defendant had
been evaluated by Dr. Lanyon and Dr. Tamm to no avail. Dr. Potts concluded
that he, too, was “somewhat baffled with our interesting client.” The defense
team noted, “[The capital mitigation specialist] is doing a nationwide search
to find the right expert…but [defendant] falls between the cracks in terms of
experts and expertise.”
In addition, the defendant’s consulting expert, Dr. Lanyon, opined in his
report, disclosed only to trial counsel, that the defendant did not fit the
category of necrophilia but rather had characteristics of serial sexual
murderer. The defendant would not be permitted to limit psychological
testimony to “not necrophilia.” An attempt by the defense to present only
“not necrophilia” testimony would call into question the defendant’s mental
health and would open the door to the State’s evaluation and discovery of the
potential for affixing a “serial sexual murderer” diagnosis. Although
necrophilia is repugnant, the latter characterization is significantly more
detrimental. Trial counsel’s keeping those damaging words out served
defendant’s interests better than seeking to secure and admit evidence that
the defendant was not a necrophile.
The Court finds that defendant has failed to overcome the strong presumption
that his attorneys’ alleged failure to call any experts in the penalty phase to
explain and refute necrophilia was sound trial strategy. Trial counsel’s
decision is based on trial tactics and strategy rather than on deficient
performance.
(ROA 491 at 17–18) (footnotes omitted).
The PCR court also rejected Morris’s argument that there was a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different:
The defendant’s consulting expert opined in his report, disclosed only to trial
counsel, that the defendant was not a necrophile but rather had characteristics
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of being a serial, sexual murderer. Had the defendant secured an expert to
dispute a necrophilia argument, it is probable that the expert would have
reached a similar conclusion about the serial murder aspect. Even had the
defense expert not done so, it is probable that the State would have either
elicited the damaging material from the defense expert or secured its own
expert either to refute the defense expert or to opine on the defendant as a
serial, sexual deviant. Such evidence is unlikely to persuade the jury to
impose a life sentence rather than a death sentence.
. . .
Given the overwhelming evidence of defendant’s guilt of five murders and
the cruelty of each of these murders, coupled with the “multiple murders”
finding, the indifferent manner in which the naked bodies were discarded
(dragged to and dumped in the alley), and consideration of the mitigation
presented . . . and that could have been presented (“decomposition/not
necrophilia”), the Court finds that the defendant has not demonstrated a
reasonable probability that, but for trial counsel’s allegedly unprofessional
error in failing to consult or call a necrophilia expert and/or a forensic
pathologist, the result of the penalty phase proceeding would have been
different.
In reaching this conclusion, this Court has compared the evidence that
actually was presented to the jury (revealed in the trial transcripts and
summarized in the Supreme Court opinion) with the “decomposition/not
necrophilia” evidence that could have been presented had counsel acted
differently; and has evaluated whether the difference between what was
presented and what could have been presented is sufficient to undermine
confidence in the outcome of the proceedings.
This Court does not find that at least one juror may have found the additional
evidence sufficient to warrant leniency.
(ROA 491 at 19–21) (footnote omitted).
Analysis
Morris alleges the PCR court’s denial of the claim is based on an unreasonable
application of clearly established law and an unreasonable determination of the facts.
(Doc. 21 at 137–41.) The Court will focus on the prejudice prong of Morris’s claim and
the PCR court’s ruling. See Strickland, 466 U.S. at 697. “When a capital defendant claims
that he was prejudiced at sentencing because counsel failed to present available mitigating
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evidence, a court must decide whether it is reasonably likely that the additional evidence
would have avoided a death sentence. This analysis requires an evaluation of the strength
of all the evidence and a comparison of the weight of aggravating and mitigating factors.”
Jones, 602 U.S. at 171–72.
Morris alleges the post-conviction court based its prejudice finding on unreasonable
factual determinations and ignored the pervasive, inflammatory nature of the charge of
necrophilia. (Doc. 21 at 141.) Specifically, he asserts the PCR court erred by: (1)
reasoning, based on Dr. Lanyon’s preliminary opinion, that a defense expert would have
testified that Morris is a “serial, sexual murderer”; (2) speculating that “[h]ad the defendant
secured an expert to dispute a necrophilia argument, it is probable that the expert would
have reached a similar conclusion about the serial murder aspect”; and (3) assuming that
the State would have “secured its own expert either to refute the defense expert or to opine
on the defendant as a serial, sexual deviant.” (Id. at 140) (citing ROA 491 at 19).
Morris asserts that Dr. Lanyon was not an expert in this field and his preliminary
thoughts would not have been presented if an appropriate expert had been retained and
called. (Id.) (citing RT 03/18/15 at 74). Morris’s argument misstates the state court’s
findings.
Dr. Lanyon acknowledged Morris’s behavior was beyond his area of expertise, and,
at the request of counsel and after reviewing literature in the field of “necrophilia” and
“serial, sexual sadistic murder” (RT 3/23/15 at 45), concluded that “[c]omparing the
literature on serial sexual murder with the sparse literature on necrophilia, it would appear
that Mr. Morris fits the former category rather than the latter.” (Lanyon Rpt. at 33.) Dr.
Lanyon provided counsel with a brief summary of each article on which he based this
opinion and which supported his hypothesis. (Id. at 28–30.) Based on Lanyon’s opinion
that Morris was not a necrophile but that he demonstrated “characteristics of being a serial,
sexual murderer,” the PCR court stated that it was “probable” that either a defense or State
expert would have concluded that Morris had characteristics of being a serial, sexual
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murderer. (ROA 491 at 19.) This was not an unreasonable factual determination. Contrary
to the manner in which Morris frames the issue, the PCR court did not state that Dr.
Lanyon’s opinion would have been presented to the jury, but rather that there was a
likelihood, based on the research Lanyon conducted and shared with defense counsel, that
any expert retained by counsel or by the State would have also found characteristics
suggesting Morris was a serial, sexual murderer. (Id.)
This determination was borne out by Dr. Becker’s testimony at the PCR hearing.
Dr. Becker specializes in psychosexual evaluations in the area of paraphilias (see RT
3/18/15 at 86) and proposed, after concluding Morris did not meet the diagnosis for
necrophilia, that “Morris is sexually aroused by the act of strangling slash choking . . . lust
murder, or causing physical suffering to the victim.” (Id. at 117–18; Becker Rpt. at 18.)
Dr. Becker was unable to state definitively that Morris met the diagnostic criteria for
erotophonophilia, however, for a number of reasons, including an absence of evidence of
mutilation of the bodies, possibly due to decomposition; Morris’s denial of fantasizing that
he is aroused by strangling, choking, or causing other physical suffering to the victims;
Morris’s propensity to embellish; and an absence of information from his sexual partners
that would indicate he engaged in similar sexual acts. (Id. at 117–19, 122–23; Becker Rpt.
at 20.) Despite Dr. Becker’s inability to ultimately diagnose Morris with erotophonophilia,
the PCR court concluded that, in addition to the “not necrophilia” determination, the
negative aspects of Dr. Becker’s report—that “Morris is sexually aroused by the act of
strangling slash choking . . . lust murder, or causing physical suffering to the victim” (RT
3/18/15 at 117–18)—would have been admissible in the penalty phase. (ROA 491 at 7–
8.) It was therefore reasonable for the PCR court to conclude that it was probable that an
expert presented by Morris to show he was not a necrophile, or an expert retained by the
State to refute Morris’s expert, would have opined that the murders demonstrated
characteristics of serial, sexual deviance.
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Further, the PCR court reasonably determined that “[s]uch evidence is unlikely to
persuade the jury to impose a life sentence rather than a death sentence.” (ROA 491 at 19;
see also RT 3/19/15 at 154 (trial counsel’s testimony that “making [Morris] a lust murderer
could be just as damaging. . . .”)).
Finally, Morris contends that it was an unreasonable application of clearly
established federal law for the PCR court to find that, even if Morris presented evidence
that he did not meet the diagnostic criteria for necrophilia and that the skin slippage and
anal defects observed in the photographs were attributable to natural decomposition, it
would not have fundamentally altered the sentencing profile such that confidence in the
outcome of the penalty phase was undermined. (Doc. 21 at 141.)
In support of this assertion, Morris cites Porter v. McCollum, 558 U.S. 30, 43
(2009), but does not explain how this decision supports his claim. In Porter, “the judge
and jury . . . heard almost nothing that would humanize Porter or allow them to accurately
gauge his moral culpability.” Id. at 41. Post-conviction review proceedings revealed
several facts of the “kind of troubled history” the Supreme Court has “declared relevant to
assessing a defendant’s moral culpability,” id. (citing Wiggins v. Smith, 539 U.S. 510, 535
(2003)), including Porter’s “abusive childhood, his heroic military service and the trauma
he suffered because of it, his long-term substance abuse, and his impaired mental health
and mental capacity,” id. at 33. “On the other side of the ledger,” the Court found the
weight of evidence in aggravation was “not as substantial as the sentencing judge thought.”
Id. at 41. “Had the judge and jury been able to place Porter’s life history ‘on the mitigating
side of the scale,’ and appropriately reduced the ballast on the aggravating side of the scale,
there is clearly a reasonable probability that the advisory jury—and the sentencing judge—
‘would have struck a different balance.’” Id. at 42 (quoting Wiggins, 539 U.S. at 537).
Unlike the substantial impact of the new evidence in Porter, even if Morris
established he was not a necrophile and there was no evidence he had postmortem sex with
the bodies, this new evidence would not significantly have altered his sentencing profile.
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Morris did present mitigation evidence relating to long-standing problems with his
appearance and hygiene, the responsibilities placed on him at a young age, his desire to
improve himself, and his good work record. Morris, 215 Ariz. at 341, 160 P.3d at 220. On
the other side of the scale, even in the absence of necrophilia, the jury found the (F)(2)
aggravating factor of multiple murders and the (F)(6) factor that each murder was
committed in an especially cruel manner. These aggravating circumstances carry great
weight at the penalty phase. See Jones, 602 U.S. at 170–71 (finding aggravating
circumstances of multiple homicides and cruelty are given great weight in Arizona) (citing,
among other cases, Garza, 216 Ariz. at 72, 163 P.3d at 1022; State v. Poyson, 250 Ariz 48,
57, 475 P.3d 293, 302 (2020)).
Indeed, a finding of the multiple-murder aggravating factor carries extraordinary
weight, whether the defendant is convicted (as here) of multiple murders committed on
separate occasions ((F)(2)) or multiple murders committed during the commission of one
or more other homicides ((F)(8)). See Hampton, 213 Ariz. at 185, 140 P.3d at 968 (giving
“extraordinary weight” to (F)(8) multiple murders aggravating circumstance based on the
commission of three homicides); Pandeli, 215 Ariz at 533, 161 P.3d at 576 (finding (F)(2)
aggravating circumstance established by evidence of prior conviction for second degree
murder especially “substantial”). This is because “the murder of two people wreaks twice
the horror and sorrow as the murder of one. A triple homicide triples the loss.” Hampton,
213 Ariz. at 184, 140 P.3d at 967. Here, the horror, loss, and sorrow are magnified by a
factor of five. As the United States Supreme Court explained in Jones:
Indeed, in a host of cases, the Arizona Supreme Court has held that one or
more of these aggravating circumstances outweighed mitigation evidence—
even evidence that was “not insubstantial.” State v. Hampton, 213 Ariz. 167,
185, 140 P.3d 950, 968 (2006) (concluding that the multiple-homicides
aggravator outweighed evidence of a “horrendous childhood”); see also
Poyson, 250 Ariz. at 57–58, 475 P.3d at 302–303 (listing several cases in
which the multiple-homicides aggravator alone outweighed all mitigating
circumstances); State v. McKinney, 245 Ariz. 225, 227, 426 P.3d 1204, 1206
(2018) (cruelty and pecuniary-motivation aggravators outweighed evidence
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that a defendant had “endured a horrific childhood” and suffered from mental
illness).
Jones, 602 U.S. at 170.
In Jones, the Supreme Court noted that despite Jones’s evidence of mental illness,
cognitive impairment caused by a history of head trauma and childhood abuse, counsel’s
inability to identify any case “in which the Arizona Supreme Court has vacated the
judgment of death in a case involving multiple murders . . . strongly suggests that Jones
has no reasonable probability of escaping the death penalty.” Id. at 170–71.
The same is true here. As the PCR court acknowledged, “necrophilia is repugnant”
(see ROA 491 at 18), but removal of the necrophilia factor would have made little
difference when the aggravating factors of multiple and cruel murders remain. These
aggravating circumstances, considered together or separately, carry great weight. In
contrast, the mitigating profile presented by Morris, while sympathetic, did little to excuse
his heinous murders. Weighing the aggravating circumstances against the totality of the
mitigating evidence and applying AEDPA’s deferential standard of review, the Court finds
that a reasonable jurist could conclude, as the state PCR court did here, that Morris failed
to establish prejudice from counsel’s failure to present “not necrophilia” evidence at the
penalty phase.
Morris has not shown that “no ‘fairminded juris[t]’ could have reached the same
judgment as the state court.” Ramirez, 596 U.S. at 378 (alteration in original) (quoting
Richter, 562 U.S. at 102). Accordingly, Morris is not entitled to habeas relief on this claim,
and the claim is denied.
D. Claim Three
Morris alleges counsel performed ineffectively at the penalty phase by failing to
investigate and present “available, comprehensive mitigation evidence,” Claims Three
(A)(1)–(4); object to improper jury instructions, Claim Three (B); object to victim impact
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testimony, Claim Three (C); and investigate and challenge juror misconduct in a motion
for a new trial, Claim Three (D). (Doc. 21 at 142–188.)
Claim Three (A)
Morris asserts that trial counsel was ineffective for failing to investigate and present
several categories of mitigating evidence and otherwise performed ineffectively at the
penalty phase of trial. (Doc. 21 at 143.) Specifically, Morris alleges counsel “failed to
investigate and present broad mitigation evidence as well as experts to explain the
mitigation presentation,” Claim Three (A)(1) (Doc. 21 at 157–62); “failed to investigate
and present evidence of brain damage,” Claim Three (A)(2) (id. at 162–65); “failed to
communicate with Morris,” Claim Three (A)(3) (id. at 165–166); and “made investigative
decisions based on cost,” Claim Three (A)(4) (id. at 166).
Each of these claims was raised in Morris’s PCR petition. (ROA 307 at 3–6, 34–
47.) The PCR court denied each sub-claim on the merits, granting an evidentiary hearing
only on the “not necrophilia” portion of Morris’s IAC claim discussed in Claim Two (C)
above. (ROA 354 at 3–8.) Morris contends the PCR court’s rulings were contrary to or
involved an unreasonable application of clearly established federal law, and that the PCR
court made unreasonable factual determinations in light of the evidence presented.
(Doc. 21 at 157–166.)
Analysis
Section 2254(d) imposes a “highly deferential standard” that “demands that state-
court decisions be given the benefit of the doubt.” Pinholster, 563 U.S. at 181 (quoting.
Visciotti, 537 U.S. at 24). “[F]ederal judges are required to afford state courts due respect
by overturning their decisions only when there could be no reasonable dispute that they
were wrong.” Donald, 575 U.S. at 316.
The “backward-looking language” of § 2254(d)(1) “focuses on what a state court
knew and did,” and requires this Court to examine the state-court decision at the time it
was made, limited to the record that was before the state court. Pinholster, 563 U.S. at
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181–82. Under § 2254(d)(2), Morris has the burden to rebut the state court’s factual
findings “by clear and convincing evidence.” Titlow, 571 U.S. at 18 (quoting 28 U.S.C.
§ 2254(e)(1)). Thus, “a state-court factual determination is not unreasonable merely
because the federal habeas court would have reached a different conclusion in the first
instance.” Wood, 558 U.S. at 301. Review under § 2254(d)(2) is also limited to the record
that was before the state court that adjudicated the claim on the merits. Twyford, 596 U.S.
at 819; Gulbrandson, 738 F.3d at 993 n.6. This includes the trial record and the appendices
attached to the PCR petition,29 but not the additional evidence submitted at the PCR
evidentiary hearing on a different set of issues because that evidence was not before the
PCR court when it denied the claims we are now considering.
Claim Three (A)(1)
In his PCR petition, Morris alleged that trial counsel offered no expert testimony to
assist the jury with interpreting the significance of the “scant mitigation” that the defense
presented.30 (PCR Pet. at 34.) In addition to the “not necrophilia” evidence described
above, Morris presented the following evidence to support his assertion that qualified
experts were necessary to adequately explain to the jury “how [Morris’s] childhood issues
drove him to commit the acts for which he could get the death penalty.” (Id.)
Dr. Becker reported that, as an adolescent, Morris’s “lack of appropriate
developmental social experiences,” body odor, and weight problem placed him at risk,
“both physically and psychologically[,] for teasing, bullying and other negative peer
interactions.” (Id. at 35) (citing Becker Rpt. at 18). Dr. Becker opined that Morris’s life
“can be seen as bleak and desolate,” and that the “numerous fabrications he engaged in”
have been an attempt to “bolster his own self-image.” (PCR Pet. at 35) (citing Becker Rpt.
29 Morris proffered Exhibits A–JJ attached to his PCR petition in support of his
claim of ineffective assistance of counsel at the penalty phase. (See PCR Pet. Exs. A–JJ.)
30 The mitigating evidence presented at Morris’s trial is described in Claim Two.
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at 18–19). Dr. Becker also reported that “Morris is generally nonviolent,” and “posed little
risk for misconduct.” (PCR Pet. at 35) (citing Becker Rpt. at 19–20).
Dr. James Sullivan, a board-certified forensic neuropsychologist, administered
neuropsychological testing to Morris and determined that defendants with similar profiles
report relatively few antisocial traits and behaviors and low rates of institutional
misconduct. (Id. at 35–36) (citing PCR Pet. Ex. U (Sullivan CV); Id., Ex. V at 2 (Sullivan
Rpt.).) Dr. Sullivan administered personality tests, and Morris responded by attempting to
minimize his problems and present as well adjusted. (Sullivan Rpt. at 2.) Although
Morris’s “somewhat defensive manner” of responding did not invalidate the testing, Dr.
Sullivan determined that Morris’s profiles were subclinical, suggesting Morris was not
experiencing clinically significant psychiatric disturbance or distress. (Id.)
Prior to trial, Dr. Lanyon conducted a “full neuropsychological evaluation” and
informed the defense team that he remained “puzzled by some of [Morris’s] behavior and
thought processes, since I have not been able to identify sufficient abnormality to account
for his extreme deviance.” (PCR Pet. Ex. J (letter dated March 9, 2004).) During the PCR
proceedings, Dr. Lanyon reviewed his file and opined that, in addition to determining that
neither necrophilia nor serial murder were the likely motives for the victims’ deaths, the
most likely explanation for the killings was that Morris was “motivated by the thrill from
the women’s extreme sexual arousal while choking them,” which, “after an awkward life
of failures,” provided him with “great manly satisfaction”; the fact that the women died
was merely “inconvenient.” (PCR Pet. Ex. BB. (undated letter)). Dr. Lanyon opined that
there may well be other sexual partners who had the same interaction with Morris but
survived. (Id.)
Morris also alleged that trial counsel failed to interview and present critical lay
witnesses. (PCR Pet. at 43.) In support, Morris presented an affidavit from capital
mitigation specialist Maria De La Rosa. (PCR Pet. Ex. M, Ex. A (De La Rosa Affidavit.)
Relying on the declarations and affidavits of 31 witnesses, De La Rosa compiled a list of
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mitigating evidence that could have been presented if Morris’s defense team had conducted
a proper investigation, including: a history of family instability, dysfunction, generational
domestic violence, drug and alcohol abuse, and a genetic propensity toward addiction and
mental disorders; lack of prenatal care and a history of physical abuse, neglect, and
substance abuse; separation from parents and peers; lack of positive role models and
exposure to negative role models; insomnia, anecdotal evidence of depression, and a
possible brain impairment; a caring and loving character with beautiful artistic ability; good
behavior and cooperation with law enforcement; no history of violence and lack of future
dangerousness; family love and support; and the negative impact of execution including
grief to his family. (De La Rosa Affidavit at 8–10.) Morris asserted that the witness
affidavits attached to De La Rosa’s Affidavit attest to Morris’s dysfunctional childhood,
and the “consensus from all . . . of the witnesses was that Cory was not violent, and never
displayed any sexual deviance or interest in dead people.” (PCR Pet. at 44.) Additionally,
Morris alleged, one witness believed that he was sexually abused and suicidal. (Id.)
Based on her research, De La Rosa also reported that Morris has minimal criminal
history and, according to military records, enlisted in the Armed Forces on September 23,
1996, but was discharged because he was overweight. (De La Rosa Affidavit at 10.)
Finally, Morris alleged that his attorney told the jury that Morris grew up in poverty
but did nothing to further develop this factor. Morris’s PCR team obtained a
demographical study of the neighborhood where Morris grew up and, according to census
data compiled by Amy Nguyen, a Geographic Information Systems Analyst, he “grew up
in a community where single mother families were the dominant family type, the median
family income was less than half the average income for the county, and more than three
times the county’s rate of adults had less than a 9th grade education.” (PCR Pet. at 45.)
Nguyen explained that Morris’s childhood was “marked by patterns of poverty, lack of
male role models and under education in his home communities.” (Id.) (citing PCR Pet.
Ex. T at 2.)
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Applying Strickland and noting counsel’s decisions are entitled to deference, the
PCR court denied Morris’s claim that counsel should have had expert witnesses testify in
the penalty phase to explain Morris’s behavior to the jury. (ROA 354 at 7) ((citing
Strickland, 466 U.S. at 689; Conklin v. Schofield, 366 F.3d 1191, 1204 (11th Cir. 2004)
(“Which witnesses, if any, to call, and when to call them, is the epitome of a strategic
decision, and it is one that we will seldom, if ever, second guess.”). The court explained
the decision not to have expert witnesses testify was “not due to trial counsel’s lack of
effort.” (Id. at 5.)
Defendant was evaluated by Dr. Lanyon, Dr. Potts, and Dr. Tamm. Dr.
Lanyon told counsel that after doing an “extensive evaluation” of defendant,
“including a full neuropsychological evaluation,” he remained puzzled by
some of his behavior and thought processes, since I have not been able to
identify sufficient abnormality to account for his extreme deviance.” [(PCR
Pet. Ex. J.)] Dr. Lanyon has further explained to PCR counsel, after again
reviewing his entire file, that the most plausible explanation for defendant’s
conduct is that “he was motivated by the thrill from the women’s extreme
sexual arousal while choking them, which especially gave him great manly
satisfaction after an awkward life of failures. The fact that they died was
inconvenient.” [(PCR Pet. Ex. BB. (undated letter).)] Dr. Potts also told trial
counsel that he was “somewhat baffled with our interesting client.” [(PCR
Pet. Ex. A.)]
(Id. at 5–6.)
Further, the PCR court determined that the decision was “more likely . . . a tactical
one rather than a deficiency in performance.” (Id. at 6.) The court explained that the
“testimony of Dr. Lanyon and Dr. Potts would not have been mitigating” and even the
proffered expert, Dr. Becker, did “not come up with an explanation for his behavior that
jurors would find mitigating.” (Id. at 6.) The PCR cited Dr. Becker’s observation that it
“should be considered that Mr. Morris is sexually aroused by the act of strangling/choking,
or what is termed erotophonophilia/lust murder or causing physical suffering to the
victims.” Dr. Becker also noted that there was “an absence of information” indicating
Morris “has engaged in similar sexual acts . . . as part of sexual pleasure.” (Id. at 6) (quoting
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Becker Rpt. at 18–19). Dr. Becker further observed that, although the PET scan conducted
by Dr. Joseph C. Wu found Morris “abnormal,” there was no data specifying “a special
neurological or psychiatric disorder” and it was unclear “how this brain abnormality might
be affecting his sexual and overall behavior.” (Id.)
The PCR court further found that counsel was not ineffective for failing to present
expert testimony because the experts believed erotophonophilia or lust fantasies were the
“most plausible explanation for the murders,” and Morris denied having these fantasies.
(Id. at 6.) Moreover, the court found this proffered explanation “not mitigating.” (Id. at
6.)
The PCR court also found that counsel “attempted to identify and secure an expert
who could gain insight into defendant’s neurological processes and then explain his
behavior to the jury, but was unable to locate anyone with the appropriate expertise.” (Id.
at 6) (citing PCR Pet. Ex. A at 18); (see also ROA 354 at 7) (quoting Landrigan v. Schriro,
441 F.3d 638, 644 (9th Cir. 2006) (“[C]ounsel is not deficient for failing to find mitigating
evidence if, after a reasonable investigation, nothing has put counsel on notice of the
existence of that evidence.”)).
The PCR court did not explicitly address the prejudice prong of this claim, although
the court remarked on some of the evidence Morris offered to demonstrate the
improbability that the presentation of expert testimony would have resulted in a different
outcome at sentencing. (See ROA 354.)
Regarding the “broad mitigation evidence” Morris claimed counsel could have
“easily acquired on their own,” the PCR court rejected Morris’s contention that trial
counsel performed deficiently, quoting the Supreme Court decision in Rompilla v. Beard,
545 U.S. 374, 383 (2005): “Trial counsel need not ‘scour the globe on the off-chance
something will turn up; reasonably diligent counsel may draw a line when they have good
reason to think further investigation would be a waste.’” (ROA 354 at 7.) The court noted
that the “defense team identified and interviewed at least 37 people, some on multiple
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occasions; reduced the list to 19 who would be most helpful to call, and called [6] people.”
(Id.) (citing PCR Pet Exs. F, Y).
The PCR court additionally found that much of the evidence proffered by Morris
was “cumulative of the mitigation evidence he presented” and, as the PCR court previously
pointed out in discussing Morris’s proffered experts, counsel’s decision not to call certain
witnesses was entitled to deference. (Id.)
The court denied Morris’s allegation that counsel overlooked his military record,
because “counsel established his participation in the ROTC program” and there was no
record to establish further service “because he was discharged due to obesity after less than
90 consecutive days of active duty for training.” (Id.) Thus, the PCR court concluded,
“[t]rial counsel’s decision not to present military service beyond ROTC time appears to
have been well-founded, ensuring that defendant would be presented in the best light
possible.” (Id. at 7–8.)
The PCR court’s finding that trial counsel was not ineffective in failing to present
expert testimony and other mitigating evidence from lay witnesses in the penalty phase was
a reasonable application of Strickland and a reasonable determination of the facts.
Contrary to Morris’s allegation (see Doc. 21 at 158), the PCR court’s finding that
“counsel attempted to identify and secure an expert who could gain insight into defendant’s
neurological processes . . . but was unable to locate anyone with the appropriate expertise”
was not unreasonable. In support of this finding, the PCR court cited an interview of Maria
Schaeffer. (ROA 354) (quoting PCR Pet. Ex. A at 18). Schaeffer was second chair counsel
until she left the Office of the Legal Advocate (“OLA”) in December 2004, approximately
six months before trial. (PCR Pet. Ex. A.)31 In her interview, Schafer acknowledged that
she wanted to call an expert and stated that their mitigation specialist was “doing a nation-
31 Morris provided no affidavit or interview from trial counsel Randall Craig, who
became second chair after Schaeffer resigned, or trial counsel James Logan, in support of
his PCR claims.
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wide search to find that right expert,” but felt that Morris fell “between the cracks in terms
of experts and expertise,” and didn’t know “if there’s an expert out there” that is “able to
explain him adequately. (PCR Pet Ex. A at 2, 11–12, 16.) The PCR court’s finding, based
on Schaeffer’s interview, was reasonable. The finding is also supported by other evidence
in the record before the PCR court.
The PCR court noted that Morris was evaluated by three experts—Dr. Lanyon, Dr.
Potts, and Dr. Tamm. (ROA 354 at 5.) After a full neuropsychological evaluation, Dr.
Lanyon reported to counsel on March 9, 2004 that he remained “puzzled by some of
[Morris’s] behavior and thought processes” and was not able “to identify sufficient
abnormality to account for his extreme deviance.” (PCR Pet. Ex. J.)
On June 15, 2004, Dr. Harry Tamm, a neurologist, conducted a neurological
examination of Morris. (PCR Pet. Exs. C and J.) The results of this examination were not
included as an exhibit to Morris’s PCR petition and thus were not before the PCR court
when the decision in question was made and will not be considered here.32
In a December 2004 email, lead counsel Logan wrote: “In a last ditch desperate
effort to find something to use in mitigation with Mr. Morris, I would like to give Dr. Potts
a shot at the mind of Mr. Morris.” (PCR Pet. Ex. E.) Logan anticipated that Dr. Potts
could review “the work of Dr. Lanyon and Dr. Tamm” and talk to Morris. (PCR Pet. Ex.
E.) Dr. Potts, a forensic psychiatrist, then evaluated Morris, and like Dr. Lanyon, told the
defense team that he was “somewhat baffled” by Morris. (PCR Pet. Ex. A at 18, Exs. F–
H, J.)
Morris argues that Dr. Lanyon’s referral of the team to Dr. Becker, and her apparent
availability and interest in the case, contradicts the PCR court’s determination that the team
could find no appropriate expert. (Doc. 21 at 158.) The Court disagrees. In an email dated
32 The Tamm results were later submitted as an exhibit in the PCR evidentiary
hearing. (See PCR EH Ex. 5 at 45–46.)
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October 21, 2004, from the mitigation specialist, Linda Thomas, to lead counsel Logan,
Thomas reported that Dr. Lanyon referred the defense team to Dr. Becker. (ROA 307 at
34–35, 45; PCR Pet. Ex. R at 1.) Though Thomas subsequently investigated the possibility
of retaining Dr. Becker (see PCR Pet. Ex. R at 2), she conveyed to counsel that she and Dr.
Lanyon were in agreement “that bringing in either a serial killer expert or a necrophilia
expert . . . would be highly entertaining for the jury and for the press but that it would not
serve our client at all.” (Id. at 1.) In other words, while Dr. Becker may have been
available, it was reasonable for the PCR court to determine, based on Thomas’s email, that
the defense team did not consider Dr. Becker to be an “appropriate” expert.
Next, Morris alleges that by “completely ignoring” the opinions offered by Dr.
Sullivan and Amy Nguyen, attached as exhibits to his petition (see PCR Pet. Exs. V, CC),
the PCR court did not “consider key aspects of the record.” (Doc. 21 at 158–59.) Morris
fails to explain how these opinions are relevant to the PCR court’s determination that
counsel did not perform deficiently. Dr. Sullivan’s opinion, that Morris has a low risk for
misconduct in prison compared to other institutionalized individuals, and relatively few
antisocial traits and behaviors compared to other defendants with similar personality
profiles, was offered by Morris in his PCR petition to demonstrate the expert evidence
counsel could have offered in mitigation had they decided to do so. Additionally, Dr.
Sullivan opined that Morris’s profiles were subclinical, suggesting Morris was not
experiencing clinically significant psychiatric disturbance or distress. This evidence does
not explain and mitigate Morris’s conduct. If anything, it goes to the prejudice component
of the Strickland analysis and is not relevant to the PCR court’s performance analysis.
Nguyen’s report, a demographical study of the neighborhood in Oklahoma City
where Morris grew up, was not even offered by Morris in his PCR claim regarding the
alleged failure to secure experts. Rather, it was offered as evidence of counsel’s failure to
obtain evidence the defense team “could have easily acquired on their own” to show that
Morris’s childhood “was marked by patterns of poverty, lack of role models and under
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education in home communities.” (PCR Petition at 45) (citing PCR Pet. Ex. CC). It was
not unreasonable for the PCR court to ignore this evidence in determining that counsel
attempted to identify and secure an expert who could gain insight into defendant’s
neurological processes and then explain his behavior to the jury, but was unable to locate
anyone with the appropriate expertise.
Finally, Morris argues that in addressing and discounting Dr. Becker’s opinion, the
PCR court made an unreasonable factual determination and unreasonably applied clearly
established federal law. (Doc. 21 at 159.) Morris asserts that the PCR court pointed to
perceived negative information in Dr. Becker’s report as a reason counsel was not deficient
in failing to retain her, but this was error because counsel could not have known what Dr.
Becker would say when they failed to consult with her. (Id.) (citing ROA 354 at 6–7).
Reviewing the PCR court’s ruling, the Court finds that it is likely that the PCR court
discussed the negative implications of Dr. Becker’s report as evidence of a lack of
prejudice. (ROA 354 at 6) (explaining that the testimony of the experts that counsel
proffered in PCR proceedings, including Dr. Becker, would not have been mitigating); (see
also id. at 7) (finding the “erotophonophilia/lust fantasies that his experts believe is the
most plausible explanation for the murders . . . not mitigating).
Nonetheless, even if the PCR court erroneously considered the proffered evidence
to support its finding that counsel did not perform deficiently, the court’s ultimate
conclusion – that counsel’s decision not to pursue Dr. Becker as an expert was a tactical
one – based solely on the evidence in the record discussed above and disregarding the
negative implications of Dr. Becker’s report, is not unreasonable because the decision was
a strategic one based on the defense team’s conclusion that such testimony might be
“highly entertaining” but would serve no purpose.
Finally, Morris asserts that the PCR court erroneously reasoned that the experts did
not give a mitigating explanation for the murders, and thus counsel did not perform
deficiently in failing to present them, contrary to the Supreme Court’s holding in Eddings
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v. Oklahoma, 455 U.S. 104, 114 (1982). (Doc. 21 at 160.) The Supreme Court has “held
that a State cannot preclude the sentencer from considering ‘any relevant mitigating
evidence’ that the defendant proffers in support of a sentence less than death.” Payne v.
Tennessee, 501 U.S. 808, 822 (1991) (citing Eddings, 455 U.S. at 114). The sentencer
may, however, consider “causal nexus . . . as a factor in determining the weight or
significance of mitigating evidence.” Lopez v. Ryan, 630 F.3d 1198, 1204 (9th Cir. 2011),
overruled on other grounds by McKinney, 813 F.3d 798 at 819; see Styers v. Ryan, 811
F.3d 292, 298–99 (9th Cir. 2015) (holding that the Arizona Supreme Court did not
violate Eddings in assigning little weight to the petitioner’s PTSD when it lacked a causal
connection to the crime).
Morris’s argument fails for the same reason his argument regarding Dr. Becker fails.
The PCR court’s determination that counsel did not perform deficiently is fully supported
by the evidence in the record without consideration of the evidence Morris proffered to
demonstrate prejudice. Additionally, it was not improper for the PCR court to consider the
strength and significance of Morris’s proffered evidence. See Lopez, 630 F.3d at 1204.
Read in context (see PCR Pet. at 7) (citing Strickland, 466 U.S. at 699 (counsel could
“reasonably surmise … that character and psychological evidence would be of little
help”)), the PCR court’s finding that the evidence was “not mitigating” was permissible
commentary on the strength of the evidence, not its admissibility. Finally, Morris invited
causal nexus scrutiny by arguing trial counsel failed to present expert testimony to explain
what “drove [Morris] to commit” the murders. (PCR Pet. at 34.) The PCR court did not
err in countering this argument by explaining the proffered mitigation did not explain
Morris’s conduct.
“This is not a case in which the defendant’s attorneys failed to act while potentially
powerful mitigating evidence stared them in the face.” Van Hook, 558 U.S. at 11. Instead,
“there comes a point” at which the search for more evidence distracts “from more important
duties.” Id. “‘[C]ounsel has a duty to make reasonable investigations or to make a
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reasonable decision that makes particular investigations unnecessary’ during the penalty
phase of a trial.” Bolin, 13 F.4th at 804 (emphasis in original) (quoting Carter v. Davis,
946 F.3d 489, 513 (9th Cir. 2019) (per curiam)).
The highly qualified experts trial counsel retained to assist them in developing
mitigating evidence remained puzzled by Morris, and offered very little information that
would explain “how [Morris’s] childhood issues drove him to commit the acts for which
he could get the death penalty” or otherwise “interpret[] the scant mitigation that the
defense presented.” (PCR Pet. at 34.) There is no reason to believe that the opinions
offered by Drs. Lanyon or Potts, that Morris’s behavior was puzzling and essentially
unexplainable, were unreliable. Counsel had no reason to believe that additional
evaluations would yield different results unless an expert in necrophilia or paraphilia was
consulted, and Drs. Lanyon and Thomas both had serious questions about the benefit of
hiring such an expert because of the impact such evidence would have on a jury. There
was no evidence that gave counsel reason to believe additional searches for experts to
explain the murders would have been productive.
The PCR court’s finding that trial counsel did not perform ineffectively by failing
to offer a broader mitigation presentation from lay witnesses at the penalty phase was also
a reasonable application of Strickland and a reasonable determination of the facts.
“[S]trategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690. “There are
countless ways to provide effective assistance in any given case. Even the best criminal
defense attorneys would not defend a particular client in the same way.” Id. at 689. The
burden rests with the habeas applicant to show that the state court applied clearly
established Supreme Court precedent in an objectively unreasonable manner. Visciotti,
537 U.S. at 25. Morris has not “overcome the presumption that, under the circumstances,”
counsel’s decision not to present all of the witnesses or evidence that Morris proffered in
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his PCR proceedings “might be considered sound trial strategy” developed after a thorough
investigation. Strickland, 466 U.S. at 689–91.
Morris first asserts that because the majority of the witnesses whom the trial team
interviewed were the same as those proffered by Morris in his PCR Petition, it was “not
the case that counsel would have had to ‘scour the globe’” to find this information, “but
that counsel failed to utilize the resources available to them and effectively prepare for the
penalty phase of trial.” (Doc. 21 at 160.)
The record supports the conclusion that the defense team did not fail to conduct a
thorough investigation. Trial counsel’s mitigation specialist interviewed 37 witnesses,
many of the same witnesses that Morris presented in his PCR Petition. (PCR Pet. Ex. Y at
3–4; see also PCR Pet. Ex. M at Ex. D (Thomas Affidavit) (“As the Capital Mitigation
Specialist on Mr. Morris’ case, I interviewed many people (often on several repeat
occasions) who knew Mr. Morris including numerous family members, neighbors, his
pastor, friends current and past, former employers, former girlfriends, former teachers, his
ROTC instructors, etc.”). On July 20, 2004, approximately one year before trial started,
the defense noticed 19 mitigation witnesses, most of whom were from Oklahoma. (ROA
63.) On April 5, 2005, approximately two months before trial started, Thomas compiled a
“scaled-down list of the most helpful witnesses to call.” (PCR Pet. Ex. F.) Of the 19
mitigation witnesses noticed, the defense called six to testify at trial. (RT 7/14/05, RT
7/18/05.) Having interviewed a majority of the same witnesses Morris presented in his
PCR proceedings, counsel’s decision not to present them at the penalty phase is a strategic
choice after thorough investigation that is “virtually unchallengeable.” Strickland, 466
U.S. at 690. The PCR court’s conclusion that counsel acted reasonably because “counsel
may draw a line when they have good reason to think further investigation would be a
waste” (ROA 354 at 7) (quoting Rompilla, 545 U.S at 383), was not contrary to or an
unreasonable application of Supreme Court precedent.
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Morris takes issue with the PCR court’s determination that “[m]uch of the evidence
defendant now proffers is cumulative of the mitigation he presented.” (Doc. 21 at 160.)
As an example, Morris asserts that no evidence was presented of his familial history of
mental illness and substance abuse, the physical abuse he experienced as a child, or the
volatility of his life in Austin and Phoenix. Morris contends the PCR court’s failure to
consider this evidence is an unreasonable determination of the facts under § 2254(d)(2).
The Court disagrees. The PCR court found that “much” of the PCR evidence was
cumulative of evidence presented at trial. (ROA 354 at 7.) The PCR court also concluded
that “counsel’s decision not to call certain witnesses is entitled to deference.” (Id.) This
conclusion must be considered in light of the court’s finding in the previous paragraph of
the same section that “[t]he defense identified and interviewed at least 37 people, some on
multiple occasions; reduced the list to 19 who would be most helpful to call, and called six
people.” (Id.) The PCR court’s conclusion was not an unreasonable determination of fact.
Trial counsel identified and interviewed more than three dozen fact witnesses. “Attorneys
are expected to formulate reasonable strategies that ‘balance limited resources in accord
with effective trial tactics and strategies.’” Carter, 946 F.3d at 524 (quoting Richter, 562
U.S. at 107.)
Finally, Morris asserts the PCR court unreasonably found that there “was no record
to support” Morris’s military service beyond his participation in ROTC, which was
presented at trial. (Doc. 21 at 161–62) (citing ROA 354 at 7). Morris alleges the court
ignored the records indicating Morris enlisted in the Army Reserves while in Austin. (Id.)
(citing De La Rosa Affidavit, Ex. C (Military Records)). This is not accurate. The PCR
court specifically cited Morris’s Army Reserve record and noted that Morris “had no active
service because he was discharged due to obesity after less than 90 consecutive days of
active duty for training.” (ROA 354 at 7.) This accurately portrayed Morris’s record. (See
De La Rosa Affidavit, Ex. C at 1) (“[T]he veteran had no active service or less than 90
consecutive days of active duty for training.”).
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Further, the PCR court determined that “counsel’s decision not to present military
service beyond ROTC time appears to have been well-founded, ensuring that defendant
would be presented in the best light possible.” (ROA 354 at 7.) This conclusion is
supported by the record. Morris’s Army Reserve record included a memorandum from
Sergeant David K. Lindquist, explaining why Morris would not be shipping out for
training:
Pvt Morris has been gaining weight steadily since he enlisted. He has been
counseled repeatedly by his recruiter, station commander, his unit NCOIC,
and by his parents. His parents have attempted to provide him a diet regimen,
which he refused to follow. He was encouraged to attend station level weight
control training, and declined. He was informed repeatedly that if he did not
reduce his weight, he would be discharged from the Army Reserve.
(De La Rosa Affidavit, Ex. C (Memorandum dated May 31, 1997).) Additionally, Sergeant
Lindquist’s memorandum mentions that Morris’s father said “Morris had a disagreement
with his stepmother, involving law enforcement officials,” left town, and “does not intend
to ship.” (Id.) Morris’s military records would not have shown him in a favorable light.
The PCR court’s finding that trial counsel was not ineffective was both a reasonable
application of Strickland and a reasonable determination of the facts. Morris is not entitled
to habeas relief on Claim Three (A)(1).
Claim Three (A)(2)
In his PCR petition, Morris alleged trial counsel was ineffective for failing to follow
their own experts’ recommendations to obtain critical neurological evidence. (PCR Pet. at
4–6.) In support, Morris offered his own affidavit and a report from Dr. Joseph Wu.
Morris stated in his affidavit that he hit his head and blacked out once when he was
13 or 14 years old, and passed out in his junior year of high school (1995–96) and was
taken to the hospital. (Id.) He also described passing out “for about a minute” in 2000 and
reported that the left side of his face and part of his body were numb when he gained
consciousness. (Id.) He further reported that he only sleeps for about two hours a night,
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waking up every thirty minutes, and as an adult he suffers from daily migraine headaches
which last for two to three hours. (Id.)
After reviewing Morris’s medical, psychological, military, and academic records,
and conducting brain scans, Dr. Wu concluded that the testing results and Morris’s history
were “consistent with a dual diagnosis of brain injury from head traumas and/or
schizoaffective disorder.” (PCR Pet. Ex. N at 2.) Dr. Wu explained that the PET scan
demonstrated a finding of “asymmetrical left temporal decrease relative to the right,” and
that a key function of the frontal and temporal lobes is the regulation of aggression. (Id. at
2, 5.)
The PCR court considered the proffered neurological evidence and, assuming
without deciding that trial counsel performed deficiently in not presenting it, found Morris
had failed to show prejudice. (ROA 354 at 3.) The court first noted that, “[w]ith respect
to each victim, the defendant [had] not indicated that he lost control and became aggressive;
rather, he claimed that the victims asked to be strangled during sex” and claimed their
deaths were accidental. (Id.) The PCR court also found there was no evidence Morris had
been violent or unable to control his aggressive impulses in the past, and evidence that
Morris was unable to control aggressive impulses would have conflicted with the
mitigation evidence that Morris was “consistently described as quiet, mild-mannered, and
a ‘teddy bear.’” (Id.) Finally, the court considered the strength of the aggravating factors
and concluded that “there is no reasonable probability that even with the neurological
evidence, the jury would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” (Id.)
The PCR court’s finding that Morris could not prove prejudice from any failure to
fully investigate his brain damage was not an unreasonable application of Strickland or an
unreasonable determination of fact. The Court must review this claim based on the record
before the PCR court at the time it made its decision. See Pinholster, 563 U.S. at 181–82.
Based on the trial record and transcripts, and the exhibits Morris attached to his PCR
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petition, the Court finds that the PCR court’s determination that neurological evidence
would not have changed the outcome of Morris’s case is a reasonable application of
Strickland and a reasonable determination of the facts.
Morris did not indicate that he lost control and became aggressive with respect to
each victim. (ROA 354 at 4.) Contrary to Morris’s assertion, the PCR court did not
unreasonably rely on Morris’s second statement to the police in reaching this conclusion.
(See Doc. 21 at 162.) Morris asserts it was unreasonable to rely on the statement that
Morris claimed that the victims asked to be strangled during sex because Morris did not
testify at any stage of the trial and the defense’s theory rested on the first version of the
account Morris gave as to each victim’s death—that the victims died of drug overdoses.
(Id.); (See RT 7/05/05 (“There’s been no proof of anything but drug overdose . . . .”)).
Although Morris did not testify, the videotape of his interview with police was played for
the jury and provided the only eyewitness account of each murder. (See RT 6/16/05,
passim; RT 6/20/05, passim.) Based on this evidence, the PCR court reasonably
determined that Morris did not indicate he had lost control and become aggressive, rather,
he claimed that the “deaths were accidental and not his fault.” (ROA 354 at 4.)
Morris next asserts that by finding him guilty of premeditated murder, the jury had
already rejected both of Morris’s statements to the police and found Morris acted
aggressively. Thus, he claims, the PCR court acted unreasonably in determining Morris’s
aggression was “not at issue” in the penalty phase. (Doc. 21 at 149–50.) The Court
disagrees with Morris’s characterization of the court’s determination. The PCR court
found there was no evidence Morris had been violent or unable to control his aggressive
impulses in the past—in other words, there was no evidence to corroborate Dr. Wu’s
opinion about his brain injury—and that evidence Morris was unable to control aggressive
impulses would have conflicted with the mitigation evidence that Morris was “consistently
described as quiet, mild-mannered, and a ‘teddy bear.’” (ROA 354 at 3.)
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Additionally, the jury found before the penalty phase that each killing was
premeditated, indicating the crimes were planned and controlled, not impulsive and
reactive. Dr. Wu’s explanation—that individuals with brain injuries similar to Morris’s
demonstrate an inability to control aggressive impulses and may be overreactive and have
disproportionate responses—would not have been helpful in explaining the type of
aggression demonstrated by the facts of the crimes themselves. (See PCR Pet. Ex. N at 4–
5.) There is no evidence suggesting any of the killings were predominantly reactive in
nature, or the result of impulsive aggression.
Even if Dr. Wu’s report supported a finding that Morris had difficulty controlling
violent and aggressive impulses, other evidence in the record did not support such a
finding, as was noted by the PCR court. The neurological evidence would have conflicted
with the witnesses’ testimony in mitigation. Morris was described by friends and family
as someone who was not violent, never got angry, and was nicknamed “Teddy Bear,” (RT
7/14/05, at 53–54, 63, 97–98; RT 7/18/05, at 11–14, 20–20, 33, 55–58), and counsel
painted a mitigation picture that Morris was a sad person, with a sad upbringing—a “very
pathetic soul”—and because of his sad life the jury should take pity on him. (RT 3/19/15
at 126–28; RT 3/24/15 at 68–70.) No lay or expert witness proffered during the PCR
proceedings found Morris to have a lack of impulse control.
Likewise, Morris’s reliance on Sears is unavailing because in that case, unlike here,
the state court unreasonably concluded “that counsel’s effort to present some mitigation
evidence should foreclose an inquiry into whether a facially deficient mitigation
investigation might have prejudiced the defendant.” Sears v. Upton, 561 U.S. 945, 954
(2010). The Supreme Court held this was not a “correct conceptualization” of the proper
prejudice standard. Id. at 952. The correct standard, and the one employed by the PCR
court in this case, is to “consider the totality of the available mitigation evidence—the
evidence presented at trial and the evidence adduced in the habeas proceeding—and
reweigh it against the evidence in aggravation.” Sears, 561 U.S. at 955–56 (quoting Porter,
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558 U.S. at 41) (cleaned up)). Regardless of “how much or how little mitigation evidence
was presented during the initial penalty phase,” this standard requires the state court to
“speculate” as to the effect of the new evidence. Sears, 561 U.S. at 956. This is exactly
what the PCR court did.
Unlike the state court in Sears, the PCR court here “correctly conceptualize[d]” and
applied the proper standard, first correctly determining that the evidence would have
conflicted with the mitigation evidence presented at the penalty phase of Morris’s trial and
then determining that, “[g]iven the fact that five women were murdered, the facts of each
murder, and the nature and strength of the aggravating factors for each murder, there is no
reasonable probability that even with the neurological evidence, the jury would have
concluded that the balance of aggravating and mitigating circumstances did not warrant
death.” (ROA 354 at 4.) The PCR court’s consideration of whether the mitigating evidence
conflicted with the mitigation evidence presented at trial was not unreasonable, as this
impacts the overall reweighing of the mitigating and aggravating factors. In other words,
new mitigating evidence that was consistent, or potentially synergistic, with the mitigating
evidence or theory propounded at trial would weigh more heavily on the mitigating side of
the scale. But new mitigating evidence that supports a theory in conflict with the evidence
produced at trial would diminish the impact of the new mitigating evidence. It therefore
was not unreasonable for the PCR court to consider whether the new evidence conflicted
with the evidence presented at trial.
Ultimately, the PCR court reasoned that because of the “nature and strength of the
aggravating factors,” Morris could not show prejudice even with the new neurological
evidence. (ROA 354 at 5.) This was not an unreasonable conclusion. See Bonin v.
Calderon, 59 F.3d 815, 836 (9th Cir. 1995) (because of overwhelming aggravation, Bonin
had not shown the use of expert psychiatrists would likely have changed the outcome).
“‘[W]here the aggravating factors greatly outweigh the mitigating evidence, there may be
no ‘reasonable probability’ of a different result,’ even if the petitioner presents ‘substantial
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evidence of the kind that a reasonable sentencer might deem relevant to the defendant’s
moral culpability.’” Lee v. Thornell, 118 F.4th 969, 989 (9th Cir. 2024), cert. denied, No.
24-6668, 2025 WL 1549805 (U.S. June 2, 2025) (quoting Jones, 602 U.S. at 165). The
Supreme Court has recognized that a defendant having committed another murder is “the
most powerful imaginable aggravating evidence.” Belmontes, 558 U.S. at 28. As
discussed in Claim Two, an aggravating circumstance based on multiple murders carries
extraordinary weight. See Jones, 602 U.S. at 170–71; Hampton, 213 Ariz. at 185, 140 P.3d
at 968; Pandeli, 215 Ariz at 533, 161 P.3d at 576; see also Bonin, 59 F.3d at 836.
“Strickland places the burden on the defendant, not the State, to show a “reasonable
probability” that the result would have been different.” Belmontes, 558 U.S. at 27 (citing
Strickland, 466 U.S. at 694.) Under a proper application of the Strickland standard, the
PCR court reasonably determined that Morris did not carry this burden. Morris is not
entitled to habeas relief. Claim Three (A)(2) is denied.
Claim Three (A)(3)
Morris alleged in his PCR petition that communication with his trial counsel
“rapidly deteriorated while the case was pending, and by the time of trial, [Morris] barely
had any contact with his lawyers.” (ROA 307 at 45.) Had counsel properly maintained
communication and “explained the procedure of a death penalty trial, and the important
opportunity of an allocution,” Morris maintains he would have told the jury the following:
that he had no interest in having sex with a dead person; had never had sex with a dead
person, including with any of the victims; the police told him to say the victims died from
choking while they were having sex; he knows who the real killer is but revealing that
information will put people’s lives at risk; and he was in the military. (Id. at 46) (citing
PCR Pet. Ex. L, Morris Affidavit).
The PCR court rejected Morris’s allegation that trial counsel failed to communicate
with him:
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Defendant claims that communication with counsel deteriorated while his
case was awaiting trial. (Pet. at 45). This complaint is belied by the jail
visitation logs showing that members of the defense team met with defendant
regularly. (Pet. at App. XV, ex. DD). Defendant also was present every day
of the trial and able to consult with counsel at that time, even absent
additional consultation. In any event, he fails to show how his attorneys’
failure to meet with him regularly constituted deficient performance or
prejudiced him.
(ROA 354 at 8.)
The PCR court’s finding that Morris failed to demonstrate that trial counsel’s
alleged lack of communication constituted deficient performance or prejudice was a
reasonable application of Strickland and a reasonable determination of the facts.
As noted by the PCR court, visitation logs demonstrated regular visitation by
Morris’s defense team before the trial. (See PCR Pet. Ex. DD) (indicating that in the four
months before jury selection began members of the defense team met with Morris at the
jail seven times). (See id.) The record also supports the PCR court’s finding that counsel
would have been able to consult with Morris every day of the trial. (See RT 6/01/05 through
7/19/05) (noting Morris’s presence in court every day but for the first three days of jury
selection).
Additional records before the PCR court also support the performance finding. See
Miller–El v. Cockrell, 537 U.S. 322, 348 (2003) (habeas petitioner must show
unreasonability “in light of the record before the [state] court”); see also Miller-El v.
Dretke, 545 U.S. 231, 241 n.2 (2005) (considering evidence that was unquestionably before
the state courts in addressing unreasonability). The trial transcript shows that trial counsel
discussed with Morris his right to testify during the guilt, aggravation, and penalty phases
of trial. (See RT 6/29/05 at 113) (trial counsel stating on the record that he had advised
Morris of his right to testify); (see RT 7/12/05 at 116) (trial court affirming that Morris had
advised his attorney that he did not want to testify); (see RT 7/18/05 at 81–82) (trial court
and trial counsel affirming that Morris had discussed his right to allocute with counsel).
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Additionally, trial counsel was aware that Morris wanted to speak to the jury and was going
to “say bad things during his allocution,” specifically “there wasn’t going to be expression
of remorse.” (See PCR Pet. Ex. A at 12–13.) Morris stated in his affidavit that this
discussion took place during a break in the trial. (PCR Pet. Ex. L at 2). Counsel asked
Maria Schaefer, who was no longer on the defense team but who had a good relationship
with Morris, to speak with him; Schaefer explained to Morris that speaking to the jury as
he intended—“effectively thumb[ing] his nose at the jurors”—wasn’t going to help him
and “would be a bad thing to do.” (Id. at 14–15.) Based on this evidence, the PCR court
reasonably determined that the record contradicted Morris’s contention that trial counsel
performed deficiently by failing to communicate with him.
Additionally, the PCR court reasonably determined Morris failed to demonstrate
prejudice from his counsel’s alleged failure to communicate. (Doc. 354 at 8.) Because the
state court did not articulate its reasoning supporting this conclusion, the Court “‘must
determine what arguments or theories . . . could have supported the state court’s’
determination that [Morris] failed to show prejudice.” Kayer, 592 U.S. at 120 (citing
Richter, 562 U.S. at 102). The Court must then “assess whether ‘fairminded jurists could
disagree on the correctness of the state court’s decision’ if based on one of those arguments
or theories.” Id. (quoting Richter, 562 U.S. at 101) (cleaned up).
The most likely reason for the PCR court’s prejudice determination is that Morris’s
self-serving statements in his affidavit—that he had not had sex with any of the victims’
bodies or any other dead bodies—created even less likelihood of a different sentencing
outcome than the expert testimony that was presented regarding the “decomposition/not
necrophilia” theory, as discussed above in Claim Two. In determining that Morris had “not
demonstrated a reasonable probability that, but for trial counsel’s allegedly unprofessional
error in failing to consult or call a necrophilia expert and/or a forensic pathologist, the result
of the penalty phase proceeding would have been different,” the PCR court emphasized the
“overwhelming evidence of defendant’s guilt of five murders and the cruelty of each of
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these murders, coupled with the ‘multiple murders’ finding, [and] the indifferent manner
in which the naked bodies were discarded (dragged to and dumped in the alley).” (ROA
491 at 20–21) (footnote omitted). Given the strength of the aggravating factors, Morris’s
proposed allocution would have fallen short of the type of mitigation information that
would have influenced the sentencing decision. Furthermore, several of the statements
Morris intended to convey to the jury could have harmed him in the penalty phase. Morris
intended to tell the jury that the police told him to say that the women died from choking
while they were having sex, an allegation that is contradicted by the videotaped statements
Morris made to the police. Additionally, Morris did not intend to express remorse; he
intended to tell the jury he knew “who the real killer is,” which, as Schaeffer described,
would effectively be the same as thumbing his nose at the jury who had already determined
that Morris was the “real killer.”
Morris has failed to demonstrate that no reasonable jurist considering the statements
in his affidavit could conclude that Morris was not prejudiced by his counsel’s alleged
failure to communicate with him. The state court decision “was not so obviously wrong
as to be ‘beyond any possibility for fairminded disagreement.’” Kayer, 592 U.S. at 124
(quoting Richter, 562 U.S. at 103). Claim Three (A)(3) is denied.
Claim Three (A)(4)
Morris alleged in his PCR petition that his defense was “underfunded” and that trial
counsel failed to pursue neurological evidence for “budgetary reasons.” (ROA 307 at 2–
4.) The PCR court rejected this claim, concluding that Morris “failed to show his counsel
lacked funds to adequately prepare his case and that this caused deficient performance and
prejudice.” (ROA 354 at 4.) The court also noted that the defense paid $6,537.50 to retain
two experts, Dr. Lanyon and Phoenix Neurological Associates, and Morris did not calculate
the defense expense for attorneys, paralegals, and investigators. (Id.)
The PCR court’s determination was not an unreasonable application of clearly
established federal law. Morris failed to allege, much less demonstrate in his PCR petition,
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that any of the decisions counsel made regarding experts was based on a lack of funding.
To the extent Morris claims he was prejudiced because counsel failed to obtain
neurological testing, this claim was reasonably denied by the PCR court as discussed in
claim Three (A)(2).33 Morris is not entitled to habeas relief. Claim Three (A)(4) is denied.
Cumulative Prejudice Claim
Morris contends the PCR court’s decision was contrary to or an unreasonable
application of Supreme Court precedent because it treated Morris’s claim of ineffective
assistance of counsel at the penalty stage as multiple, distinct claims and did not examine
the cumulative effect of the various instances of counsel’s deficient performance. (Id. at
156.) The Court disagrees.
As noted by Respondents in the Answer, Morris did not raise a claim in his PCR
proceedings that the cumulative effect of trial counsels’ errors prejudiced him. (See
Doc. 27 at 71.) The claim is also meritless.
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”).
The Ninth Circuit has held in some cases that although no single trial error is
sufficiently prejudicial to warrant reversal, the cumulative effect of several errors may
prejudice a defendant to such a degree that his conviction must be overturned. See
33 Morris explains in his petition for review that the “proof of prejudice” for his IAC
claim alleging a failure to obtain adequate funding was “joined” to prejudice with his claim
for failing to conduct nuerological testing. (PR 7 at 12.)
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Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002), overruled on other grounds by
Slack v. McDaniel, 529 U.S. 473 (2000). Here, however, the Court has not identified any
constitutional errors arising during Morris’s trial.34 “If there are no errors, there is no need
to consider their cumulative effect.” McGill v. Shinn, 16 F.4th 666, 685 (9th Cir. 2021).
Morris’s claim of cumulative prejudice is therefore meritless.
Morris is not entitled to habeas relief. Claim Three (A) is denied.
Claim Three (B)
Morris asserts that trial counsel was ineffective for failing to object to several
instructional errors in the penalty phase of his trial. (Doc. 21 at 177.) Morris raises four
subclaims of ineffectiveness. He did not raise these claims in state court. (See id. at 177.)
Claim Three (B)(1)
In Simmons v. South Carolina, 512 U.S. 154 (1994), the United States Supreme
Court held that when “a capital defendant’s future dangerousness is at issue, and the only
sentencing alternative to death available to the jury is life imprisonment without possibility
of parole, due process entitles the defendant ‘to inform the jury of [his] parole ineligibility,
either by a jury instruction or in arguments by counsel.’” Cruz v. Arizona, 598 U.S. 17, 21
(2023) (quoting Shafer v. South Carolina, 532 U.S. 36, 39 (2001); Kelly v. South Carolina,
534 U.S. 246, 248 (2002)).
Until 2012, Arizona’s sentencing statute expressly provided for a release-eligible
life sentence for defendants convicted of first-degree murder.35 See A.R.S. § 13-703(A),
34 Though the PCR court assumed counsel performed deficiently by failing to obtain
neurological evidence, the PCR court found no other deficient performance, and therefore
no other prejudice to consider cumulatively to this assumed error.
35 At the time of Morris’s trial, the relevant sentencing statute read:
If the defendant is sentenced to life, the defendant shall not be released on
any basis until the completion of the service of twenty-five calendar years if
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renumbered as A.R.S. § 13-751(A). In 1994, however, “the legislature had obliquely
abolished parole through Title 41 rather than Title 13” for all felonies committed after
1993. Anderson, 257 Ariz. at 235, 547 P.3d at 354 (Beene, J., dissenting) (citing A.R.S §
41–1604.09(I)(1)). As a result, defendants facing death sentences between 1994 and 2012
were statutorily eligible to receive life-with-parole sentences but, as a practical matter,
could not be paroled.
At the time of Morris’s trial, the Arizona Supreme Court had not considered
Simmons’ applicability to Arizona’s capital jury-sentencing process in light of § 13-703(A)
and § 41–1604.09(I). In 2008, the court rejected an argument that Simmons required a trial
court to “presentence” a defendant by deciding before trial whether it would impose a
parole-eligible life sentence and instruct the jury accordingly. State v. Cruz, 218 Ariz. 149,
160, 181 P.3d 196, 207 (2008). The court reasoned that Simmons did not require reversal
because “[n]o state law would have prohibited [the defendant’s] release on parole after
serving twenty-five years, had he been given a life sentence.” Id. (citing A.R.S. § 13-
703(A)). Finally, in 2015, the Arizona Supreme Court acknowledged that, under A.R.S.
§ 41-1604.09(I), “parole is available only to individuals who committed a felony before
January 1, 1994, and juveniles,” but nonetheless reaffirmed its holding that Simmons did
not apply in Arizona because a defendant facing a death sentence was eligible to receive a
life sentence with the possibility of release under A.R.S. § 13-751(A). See State v. Lynch,
238 Ariz. 84, 103–04, 357 P.3d 119, 138–39 (2015), reversed by Lynch v. Arizona, 578
U.S. 613, 614–16 (2016). This “systemic failure to recognize the effect of the change in
the law regarding parole” by “defendants, attorneys, and courts” created “pervasive
confusion about parole eligibility in Arizona.” Anderson, 257 Ariz. at 232, 547 P.3d at
351.
the murdered person was fifteen or more years of age and thirty-five years if
the murdered person was under fifteen years of age.
A.R.S. § 13-703(A).
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In this case, where the trial occurred during this period of “pervasive confusion,”
the trial court instructed the jury at the aggravation and penalty phases of Morris’s trial that
if their verdict was that he should not be sentenced to death, then the court would sentence
him to either natural life or life with the possibility of release or parole after 25 years.
(ROA 153 at 5; ROA 163 at 9; ROA 169 at 7; RT 7/12/05 at 18; RT 7/14/05 at 10; RT
7/18/05 at 96–97.) Morris alleges that counsel performed ineffectively by failing to inform
the court that Morris was parole ineligible and by failing to object to an instruction that
incorrectly informed the jury that Morris could be sentenced to life with the possibility of
parole. (Doc. 21 at 178–82.)
As discussed in a separate order, the claim is technically exhausted and
procedurally defaulted. (See Doc. 84 at 12, 19; see also Doc. 91 at 8.) Morris argues the
default of this claim is excused under Martinez by the ineffective assistance of PCR
counsel. (Doc. 34 at 89.) Martinez does not provide cause to excuse the procedural default
because, as set forth below, the claim is plainly meritless.
Constitutionally deficient performance “is necessarily linked to the practice and
expectations of the legal community. . . .” Hinton v. Alabama, 571 U.S. 263, 273 (2014)
(quoting Padilla, 559 U.S. at 366). “An attorney’s ignorance of a point of law that is
fundamental to his case combined with his failure to perform basic research on that point
is a quintessential example of unreasonable performance under Strickland.” Id. at 274.
Counsel’s failure to object to the instruction or inform the court of Morris’s parole
ineligibility is not evidence that counsel failed to perform basic research. Basic research
would have established that, under A.R.S. § 13-703(A), Morris could be sentenced to a
parole eligible sentence. For over 15 years, the Arizona Supreme Court failed to recognize
the legislature’s abolition of parole in Arizona. In 1999, the Arizona Supreme Court held
that “Arizona’s statute . . . states with clarity that the punishment for committing first
degree murder is either death, natural life, or life in prison with the possibility of parole.”
State v. Wagner, 194 Ariz. 310, 312, 982 P.2d 270, 272 (1999). Just before Morris’s
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sentencing, the Arizona Supreme Court confirmed that “[t]he range of punishment allowed
by law on the basis of [a first degree murder guilty] verdict alone is life imprisonment with
the possibility of parole or imprisonment for ‘natural life’ without the possibility of
release.” State v. Fell, 210 Ariz. 554, 558, 115 P.3d 594, 598 (2005) (quoting State v. Ring,
200 Ariz. 267, 279, 25 P.3d 1139, 1151 (2001)).
Given this background, the Court disagrees with the majority opinion in Anderson
that “basic research would ordinarily have included reading A.R.S. § 41-1604.09(I).”
Anderson, 257 Ariz. at 234, 547 P.3d at 353 n.1. The parole ineligibility provision was
buried in a section of statute setting forth provisions for the Arizona Department of
Correction’s parole eligibility classification system, separate from the criminal statutes
codified in Title 13. And as Justice Beene explained in dissent in Anderson, “[t]he Arizona
Legislature conveyed its 1993 parole restrictions via a negative inference, not an
affirmative statement.” Id. at 235, 547 P.3d at 354 (citing A.R.S. § 41-1604.09(I) (1993)
(“This section [describing parole eligibility and classifications] applies only to persons who
commit felonies before January 1, 1994.”).) For many years after the enactment of § 41-
1604.09, trial courts continued to sentence defendants to “illegally lenient” sentences of
life without the possibility of parole for 25 years. See, e.g., Chaparro v. Shinn, 248 Ariz.
138, 459 P.3d 50 (2020); Anderson, 257 Ariz. at 229, 547 P.3d at 348.
Although intermediate appellate courts occasionally remarked that the possibility
for parole for crimes committed after 1993 had been eliminated, see, e.g., State v. Rosario,
195 Ariz. 264, 268, 987 P.2d 226, 230 (App. 1999); State v. Jensen, 193 Ariz. 105, 108,
970 P.2d 937, 940 (App. 1998), given the controlling Arizona Supreme Court opinions in
Wagner and Fell, affirmatively explaining that “the legislature has concluded that the trial
court can appropriately exercise its discretion to determine whether future release is
possible (although not assured) or whether the defendant must instead spend the rest of his
or her life in prison,” Fell, 210 Ariz. at 558, 115 P.3d at 598, together with the sentencing
statute on which those determinations were based, A.R.S. § 13-703(A), reasonable counsel
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performing basic research could have concluded, as the Arizona Supreme Court did in
Wagner and Fell, that Morris was in fact parole or release eligible and there were no
grounds for an objection.
Because the underlying claim of trial counsel ineffectiveness lacks merit, cause does
not exist for the claim’s default. Runningeagle, 825 F.3d at 982; Atwood, 870 F.3d at 1060.
The claim therefore remains barred from federal review.
Claim Three (B)(2)
In the penalty phase of Morris’s trial, the jurors were instructed as follows:
You must individually determine if the totality of the mitigating
circumstances is sufficiently substantial to call for leniency and a life
sentence.
The weighing of aggravating and mitigating circumstances does not mean a
mere mechanical counting of factors on each side of an imaginary scale or
the arbitrary assignment of weights to any of them. You are free to assign
whatever value you deem appropriate to each and all of the various factors
you are permitted to consider. In weighing the various circumstances, you
determine under the relevant evidence which penalty is justified and
appropriate by considering the totality of the aggravating circumstance with
the totality of the mitigating circumstances.
In reaching a reasoned, moral judgment about which penalty is justified and
appropriate, you must decide how compelling or persuasive the totality of
the mitigating factors is when compared against the totality of the
aggravating factors.
(RT 7/18/05 at 94–95.)
Morris argues that trial counsel was ineffective for failing “to request that the jury
be instructed that the cumulative effect of mitigation can be considered as a separate
mitigating circumstance.” (Doc. 21 at 182.)
Because the claim would be precluded if raised in a successive post-conviction
petition, it is procedurally defaulted. See Ariz. R. Crim. P. 32.2(b); 32.1(b)–(h); see also
Spreitz, 202 Ariz. at 2, 39 P.3d at 526 (“Our basic rule is that where ineffective assistance
of counsel claims are raised, or could have been raised, in a Rule 32 post-conviction relief
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proceeding, subsequent claims of ineffective assistance will be deemed waived and
precluded.”). Morris argues the default is excused under Martinez by the ineffective
assistance of PCR counsel. (Doc. 34 at 89.) He argues that, had PCR counsel researched
the law related to a jury’s obligation and authority to consider mitigating evidence, she
would have discovered that defense counsel in Arizona had requested that jurors be
instructed that they could consider the cumulative effect of mitigation as an independent
mitigating factor. (Doc. 34 at 92) (citing e.g., State v. Chappell, 225 Ariz. 229, 241, 236
P.3d 1176, 1188 (2010)). Martinez does not provide cause to excuse the procedural default
because, as set forth below, the claim is plainly meritless. Additionally, Morris fails to
demonstrate PCR counsel performed deficiently by failing to raise this IAC claim.
As Morris notes, had PCR counsel researched the issue she would have discovered
that defense counsel in Arizona often request that the sentencer be instructed to consider
the cumulative effect of mitigating circumstances. See e.g., Chappell, 225 Ariz. at 241,
236 P.3d at 1188. Morris fails to include, however, that had PCR counsel researched the
issue, she would also have discovered that the Arizona Supreme Court had consistently
rejected arguments that failure to instruct the jury to consider multiple mitigating factors
cumulatively is unconstitutional. See, e.g., id. (finding totality of mitigating circumstances
instruction fulfilled the purpose of Chappell’s proffered cumulative mitigating instruction
by informing jurors that they should consider his mitigation evidence in its “totality”); State
v. McCray, 218 Ariz. 252, 262, 183 P.3d 503, 513 (2008) (rejecting argument that
“Arizona’s death penalty statute violates the Eighth and Fourteenth Amendments . . .
because it does not require multiple mitigating factors to be considered cumulatively
. . . .”); State v. Van Adams, 194 Ariz. 408, 423, 984 P.2d 16, 31 (1999) (rejecting
defendant’s argument that Arizona’s sentencing statute unconstitutionally fails to require
cumulative consideration of multiple mitigating factors); State v. Spreitz, 190 Ariz. 129,
151, 945 P.2d 1260, 1282 (1997); (rejecting defendant’s claim that “Arizona’s death
penalty statute violates the Eighth and Fourteenth Amendments . . . because it does not
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require multiple mitigating factors to be considered cumulatively. . . .”); State v. Apelt, 176
Ariz. 349, 368, 861 P.2d 634, 653 (1993) (rejecting defendant’s claim that the court failed
to weigh the mitigating factors as a whole).
Reasonable counsel researching this issue would have concluded there were no
grounds for raising this claim in a PCR petition. Morris fails to establish that PCR counsel
performed deficiently. Furthermore, as discussed below, the underlying trial counsel IAC
claim is meritless.
The United States Supreme Court has never held that the “cumulative effect” of
mitigation must be considered as a separate mitigating circumstance. The Supreme Court
has specifically held that “[t]he absence of an instruction on the concept of mitigation and
of instructions on particular statutorily defined mitigating factors did not violate the Eighth
and Fourteenth Amendments to the United States Constitution.” Buchanan v. Angelone,
522 U.S. 269, 275−77 (1998) (footnote omitted). Because Morris was not entitled to a
cumulative mitigation instruction, counsel was not ineffective for failing to request one.
See James, 24 F.3d at 27 (“Counsel’s failure to make a futile motion does not constitute
ineffective assistance of counsel.”). PCR counsel would not be ineffective for failing to
raise an ineffective assistance of counsel claim where trial counsel was not constitutionally
ineffective. Sexton, 679 F.3d at 1157.
The Court finds plainly meritless the claim that trial counsel performed ineffectively
by failing to object to the jury instruction at issue. Because the underlying claim of trial
counsel ineffectiveness lacks merit, cause does not exist for the claim’s default.
Runningeagle, 825 F.3d at 982; Atwood, 870 F.3d at 1060. The claim therefore remains
barred from federal review.
Claim Three (B)(3)
Morris alleges trial counsel “failed to request that the jury be instructed that mercy
can be an independent mitigating circumstance,” and that, as “a result, the jury was
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prevented from considering all evidence relevant to the determination of whether Morris
should be sentenced to death.” (Doc. 21 at 183.)
Because the claim would be precluded if raised in a successive post-conviction
petition, it is procedurally defaulted. See Ariz. R. Crim. P. 32.2(b); 32.1(b)–(h); see also
Spreitz, 202 Ariz. at 2, 39 P.3d at 526. Morris argues the default is excused under Martinez
by the ineffective assistance of PCR counsel. (Doc. 34 at 89.) Martinez does not provide
cause to excuse the procedural default because, as set forth below, the claim lacks merit.
Additionally, Morris fails to demonstrate PCR counsel performed deficiently by failing to
raise this IAC claim.
Once a determination is made that a person is eligible for the death penalty, the
sentencer must consider relevant mitigating evidence, allowing for “an individualized
determination on the basis of the character of the individual and the circumstances of the
crime.” Tuilaepa v. California, 512 U.S. 967, 972 (1994). The sentencer in a capital case
may “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, 455 U.S. at 110 (quoting Lockett v.
Ohio, 438 U.S. 586, 604 (1978) (plurality opinion)); see also Penry, 492 U.S. at 328
(“[T]he jury must be able to consider and give effect to any mitigating evidence relevant
to a defendant’s background and character or the circumstances of the crime.”), abrogated
on other grounds by Atkins v. Virginia, 536 U.S. 304, 320 (2002))).
The Supreme Court has explained that “the jury must be given an effective vehicle
with which to weigh mitigating evidence so long as the defendant has met a ‘low threshold
for relevance,’ which is satisfied by ‘evidence which tends logically to prove or disprove
some fact or circumstance which a fact-finder could reasonably deem to have mitigating
value.’” Smith v. Texas, 543 U.S. 37, 44 (2004) (quoting Tennard v. Dretke, 542 U.S. 274,
284–85 (2004)).
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The legal standard for reviewing jury instructions that are claimed to restrict a jury’s
consideration of relevant mitigating evidence is “whether there is a reasonable likelihood
that the jury applied the challenged instruction in a way that prevented the consideration of
constitutionally relevant evidence.” Boyde, 494 U.S. at 380.
Morris argues that “mercy was not included in the jury instructions as a separate
mitigating circumstance the jury should consider, as opposed to the lens through which the
jury could consider other mitigating circumstances.” (Doc. 34 at 102.) Although a “capital
defendant generally must be allowed to introduce any relevant mitigating evidence
regarding his character or record and any of the circumstances of the offense,” California
v. Brown, 479 U.S. 538, 541 (1987) (quotations omitted), the Supreme Court has never
held that a sentencer must consider emotional or spiritual concepts such as “mercy” as
independent mitigating factors.
To be sure, courts have mentioned mercy as a possible juror response to mitigating
evidence. “The imperative to cast a wide net for all relevant mitigating evidence is
heightened at a capital sentencing because the Constitution prohibits imposition of the
death penalty without adequate consideration of factors which might evoke mercy.” Doe
v. Ayers, 782 F.3d 425, 435 (9th Cir. 2015) (citing Frierson v. Woodford, 463 F.3d 982,
989 (9th Cir. 2006)); see also Kansas v. Carr, 577 U.S. 108 (2016) (“[T]he ultimate
question whether mitigating circumstances outweigh aggravating circumstances is mostly
a question of ‘mercy.’”). And although, as Morris contends, the Supreme Court has found
that counsel’s reliance “on a simple plea for mercy” under certain circumstances may
constitute a reasonable strategic choice, see Darden, 477 U.S. at 185–87, this does not
transform mercy into a constitutionally relevant mitigating fact. Mercy is not evidence that
“tends to logically prove or disprove some fact or circumstance.” See Smith, 543 U.S. at
44. “[M]ercy” cannot be proven “by any standard, nor does it relate to the character or
propensities of the defendant or the circumstances of the crime. Therefore, mercy is not a
mitigating circumstance. Mercy is a concept jurors may apply in evaluating the existence
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of mitigating circumstances and in deciding whether the death penalty is appropriate in a
particular case.” State v. Andriano, 215 Ariz. 497, 507, 161 P.3d 540, 550 (2007),
abrogated on other grounds by State v. Ferrero, 229 Ariz. 239, 274 P.3d 509 (2012).
Even if mercy is properly construed as a mitigating factor, trial counsel’s failure to
request an instruction about it did not prevent the jury’s consideration of mercy. To the
contrary, the court specifically instructed the jury that it was allowed to consider all
mitigating circumstances “which in fairness and mercy may be considered as extenuating
or reducing the degree of the defendant’s culpability and the punishment to be imposed.”
(RT 7/14/05 at 3) (emphasis added). The jurors were further instructed that “the
determination of what circumstances are mitigating” is for each juror “to resolve
individually, based on all the evidence that has been and will be presented . . . including
any aspect of the defendant’s character, propensities, . . . or record and any of the
circumstances of the offense.” (Id. at 3–4.) The court instructed the jurors that their
weighing of aggravation and mitigation was not a “mere mechanical counting of factors,”
that they were required to reach “a reasoned, moral judgment about which penalty is
justified and appropriate,” and that although they could not be “governed or influenced by
“mere sentiment, passion or prejudice,” they could “consider grounds for leniency.” (Id.
at 8–9.)
The Supreme Court has also rejected the argument that the failure to include a
specific mitigating factor in a list of mitigating factors provided by the court necessarily
precludes consideration of the unenumerated factors. In Blystone v. Pennsylvania, 494
U.S. 299, 307–08 (1990), the Court determined that the trial court’s instruction that the
jury was allowed to consider “extreme” mental or emotional disturbance, “substantial”
impairment, or “extreme” duress, did not impermissibly preclude the jury’s consideration
of lesser degrees of disturbance, impairment, or duress. The trial court made clear that the
examples were merely items it could consider, and that the jury was also entitled to consider
“any other mitigating matter concerning the character or record of the defendant, or the
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circumstances of his offense.” Id. at 308. This instruction, the Supreme Court held, fully
complied with the requirements of Lockett and Penry. Id. at 308.
The jury instructions in this case permitted jurors to “accord mercy if they deem it
appropriate, and withhold mercy if they do not, which is what [the Supreme Court’s] case
law is designed to achieve.” Carr, 577 U.S. at 119.
Because Morris has not shown that mercy is constitutionally relevant mitigating
evidence or that the penalty-phase jury instructions prevented his jury from exercising its
reasoned moral judgment to show him mercy, the Court finds plainly meritless the claim
that trial counsel performed ineffectively by failing to request a jury instruction that mercy
be considered as an independent mitigating circumstance. Because the underlying claim
of trial counsel ineffectiveness lacks merit, cause does not exist for the claim’s default.
Runningeagle, 825 F.3d at 982; Atwood, 870 F.3d at 1060. The claim therefore remains
barred from federal review.
Claim Three (B)(4)
Morris alleges trial counsel failed to request that the court use special verdict forms
at the penalty phase that would have clarified what mitigating circumstances the jury found
proven. (Doc. 21 at 184.) As a result, he claims, the Arizona Supreme Court had no
findings of fact or reasoning from the jury to review in determining whether the jury abused
its discretion by imposing the death penalty.
Morris did not raise this claim in state court. (See id. at 177.) Because the claim
would be precluded if raised in a successive post-conviction petition, it is procedurally
defaulted. See Ariz. R. Crim. P. 32.2(b); 32.1(b)–(h); see also Spreitz, 202 Ariz. at 2, 39
P.3d at 526. Morris argues the default of this claim is excused under Martinez by the
ineffective assistance of PCR counsel. (Doc. 34 at 89.) Martinez does not provide cause
to excuse the procedural default because, as set forth below, the claim is plainly meritless.
Additionally, Morris fails to demonstrate PCR counsel performed deficiently by failing to
raise this IAC claim.
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The Constitution does not require a capital sentencer to document its analysis of
mitigating circumstances, as long as the sentencer considers all of the evidence. See
Jeffries v. Blodgett, 5 F.3d 1180, 1197 (9th Cir. 1993) (“[D]ue process does not require that
the sentencer exhaustively document its analysis of each mitigating factor as long as a
reviewing federal court can discern from the record that the state court did indeed consider
all mitigating evidence offered by the defendant”) (citing Parker v. Dugger, 498 U.S. 308,
314–19 (1991)); see also Jeffers v. Lewis, 38 F.3d 411, 418 (9th Cir. 1994) (explaining that
a defendant is not “entitled to a specific listing and discussion of each piece of mitigating
evidence under federal constitutional law”).
Contrary to Morris’s assertion, the Arizona Supreme Court does not review the
jury’s findings of fact or reasoning. Rather, it reviews the jury’s decision to impose the
death sentence for reasonableness based on the evidence presented. Morris, 215 Ariz. at
341, 160 P.3d at 220. The Arizona Supreme Court has repeatedly rejected the argument
that jurors should be provided with mitigation verdict forms, finding use of such a form
inappropriate. See, e.g., State v. Carlson, 237 Ariz. 381, 351 P.3d 1079, 1096 (2015)
(citing State v. Forde, 233 Ariz. 543, 573–74, 315 P.3d 1200, 1230–31 (2014) (a special
verdict form of this type would be inappropriate “because jurors ‘do not have to agree
unanimously that a mitigating circumstance has been proven to exist,’ and ‘[e]ach juror
may consider any mitigating circumstance found by that juror in determining the
appropriate penalty.’”) (quoting A.R.S. § 13-751(C)); see also State v. Tucker, 215 Ariz.
298, 319, 160 P.3d 177, 198 (2007); State v. Roseberry, 210 Ariz. 360, 373, 111 P.3d 402,
415 (2005). Therefore, counsel’s failure to request such a form did not fall below
prevailing professional norms.
The Arizona Supreme Court had the entire record that was before the jury when it
determined that the jury did not abuse its discretion in imposing death sentences for each
of the murders. Morris, 215 Ariz. at 341, 160 P.3d at 220. Thus, counsel was not
ineffective in failing to request a form, and Morris was not prejudiced on appeal because
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the reviewing court had the same record the jury considered in imposing the five death
sentences.
Because the underlying claim of trial counsel ineffectiveness is without merit, cause
does not exist for the claim’s default. Runningeagle, 825 F.3d at 982; Atwood, 870 F.3d at
1060. The claim is barred from federal review.
Claim Three (C)
Morris alleges trial counsel was ineffective for failing to object to improper victim-
impact testimony consisting of unduly prejudicial victim statements and sentencing
recommendations in violation of the Eighth Amendment as held by the Supreme Court in
Payne, 501 U.S. at 830, and Booth v. Maryland, 482 U.S. 496, 508–09 (1987). (Doc. 21
at 184–86.) He asserts there is a reasonable probability that without the inflammatory
statements and sentencing recommendations at least one juror would have weighed the
aggravating and mitigating evidence differently.
Morris did not raise this claim in state court. (See id. at 184.) Because the claim
would be precluded if raised in a successive post-conviction petition, it is procedurally
defaulted. See Ariz. R. Crim. P. 32.2(b); 32.1(b)–(h); see also Spreitz, 202 Ariz. at 2, 39
P.3d at 526. Morris argues the default is excused under Martinez by the ineffective
assistance of PCR counsel. (Doc. 34 at 89.) Martinez does not provide cause to excuse
the procedural default because, as set forth below, the claim is plainly meritless.
Morris asserts that the statements made by three family members of the murder
victims during the penalty phase of the trial were unduly prejudicial and were “effectively
sentencing recommendations.” (Doc. 21 at 186.) Morris cites three examples. Patina
Noah, Sharon Noah’s mother, said:
. . . I haven’t been to court every day, and it hasn’t been because I don’t care.
. . . It’s been very hard for me to sit here and . . . hear what he’s done to my
daughter . . . . I can’t bear to hear all the grisly details about how he made
Sherri suffer. She didn’t deserve this. Sherri did not deserve this.
(RT 7/14/05 at 31.) Jan Velasquez, sister of Jade Velasquez, commented:
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I’m the oldest of three children, and I do know what Mr. Morris went
through, but I haven’t taken that life that he took. I took care of my little
sister, and I took care of my little brother, too, and I’m also getting a
bachelor’s of science in nursing and bachelor’s of science in social work.
Even though we grew up poor, we didn’t choose the life that Mr. Morris
chose. My little sister had three associate’s degrees, and she was also a
member of the armed forces. She didn’t let anything stop her.
. . .
We went through a lot, my sister and I. We grew up without a father, too,
but that didn’t stop us from achieving our goals. I’m still dealing with a lot
of loneliness and depression because of what you took away from me.
(Id. at 35–36.) G.G. Codman, Barbara Codman’s sister, described the impact of receiving
the news of her sister’s death and having to share that news with Barbara’s daughter:
I felt so completely alone that day. Our parents had both passed away.
Barbara is my only sibling. I was horrified. I was -- I could not imagine
what her last moments could have been like. And now I know the gory
details, the disgusting details but I had no idea at that time what could have
possibly happened to her, what she could have been thinking at her very last
moments.
. . . [S]o the worst day by far was the day I had to tell Shawna that her mom
was murdered, and there was others. I think that I’ve just been so concerned
that she would hear these details or see any of these pictures. I have a fear
that, you know, this is going to haunt her for the rest of her life. . . .
Just no human being, no sister, no child needs to ever hear what I’ve heard
in this courtroom or seen what Cory Morris has done to my sister and what
he did to her after death. It’s just horrifying, and nobody should ever have
to see that.
. . . I have heard what Cory Morris has done to my sister, how he preyed upon
her weakness and her vulnerabilities and performed some unimaginable acts
and vile acts upon her. These pictures are now in my head, and I can’t erase
them. I have to live with them every day of my life.
And Cory Morris, he’s the one who said my sister was the pretty one. Well,
what you did to my sister was not pretty, but I’ve brought you pictures of my
sister so you could see the real Barbara. These are the pictures that I choose
to look at now daily so I can remember her the way she was.
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(Id. at 40–42.)
The court instructed the jury that:
The [murder victims’ survivors] have made statements relating to the
personal characteristics of the victims and the impact of their murders on
their family. You may consider this information to the extent it may rebut
the mitigation presented by the defendant. You are to consider this
information only for this limited purpose. You may not consider the
information as a new aggravating circumstance.
(RT 7/18/05 at 95.) The court also instructed the jurors that they “cannot be governed or
influenced by mere sentiment, passion, or prejudice.” (Id.)
In Booth, 482 U.S. at 509, the Supreme Court held that the introduction of a victim-
impact statement to a capital sentencing jury violated the Eighth Amendment. In Payne,
the Court overruled Booth in relevant part and held that in a penalty-phase capital trial, “if
the State chooses to permit the admission of victim impact evidence and prosecutorial
argument on that subject, the Eighth Amendment erects no per se bar.” 501 U.S. at 827.
The Court explained that the “State has a legitimate interest in counteracting the mitigating
evidence which the defendant is entitled to put in, by reminding the sentencer that just as
the murderer should be considered as an individual, so too the victim is an individual whose
death represents a unique loss to society and in particular to this family.” 501 U.S. at 825
(citation and internal quotation marks omitted). The Court left intact Booth’s prohibition
on the admission of characterizations and opinions about the crime, the defendant, or the
appropriate sentence. Id. at 830 n.2. “In the event that evidence is introduced that is so
unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of
the Fourteenth Amendment provides a mechanism for relief.” Id. at 825 (citing Darden,
477 U.S. at 179–83).
Although the victims did not offer recommendations as to the appropriate sentence,
Payne, 501 U.S. at 830 n.2, the Court finds that the statements offered opinions and
characterizations of the crime, and, implicitly, of the defendant. The Court further finds
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that these comments likely fall into one of the categories that remain prohibited under
Payne and Booth. See, e.g., Lockett v. Trammell, 711 F.3d 1218, 1238 (10th Cir. 2013)
(admission of statement describing details of the crime and speculating about the victim’s
thoughts and feelings during the crime violated the Eighth Amendment). But see Simmons
v. Bowersox, 235 F.3d 1124, 1134 & n.4 (8th Cir. 2001) (penalty-phase testimony by
victim’s family members describing in detail her thoughts and feelings during the crime
was “not meaningfully distinguishable from that approved by the Supreme Court in
Payne”). But even if trial counsel should have objected to the statement on the grounds
they were improper characterizations and opinions of the crime and of Morris, counsel’s
performance did not prejudice Morris.
Given the extraordinary weight of the prosecution’s aggravating case against Morris
and the weakness of Morris’s mitigating case, as described in Claim Two (C) above, the
family member characterizations of the crime or Morris were unlikely to sway the jury.
The jury received full evidence regarding Morris’s murders of five women during sexual
acts, that some of the victims struggled, that the victims suffered, and the grisly manner in
which Morris treated and discarded the victims’ bodies. This graphic evidence far
outweighed the statements of family members quoted above. There simply is no
reasonable probability of a different outcome if counsel had objected to the family member
statements. See Payne, 501 U.S. at 825.
Any error in failing to object was also harmless because there is no evidence that
the testimony had “substantial and injurious effect or influence in determining the jury’s
verdict.” Brecht, 507 U.S. at 638 (quotation marks omitted); see Floyd v. Filson, 949 F.3d
1128, 1149 (9th Cir. 2020) (applying harmless error standard to admission of mother’s
victim-impact statement); Short v. Sirmons, 472 F.3d 1177, 1193 (10th Cir. 2006) (“[T]he
alleged prejudicial effect of the victim-impact testimony [must be assessed] by examining
the aggravating and mitigating factors and the overall strength of the State’s case.”);
Hooper v. Mullin, 314 F.3d 1162, 1174 (10th Cir. 2002) (applying harmless error standard
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to admission of improper victim-impact statement). The statements by the victims were
not inconsistent with, and certainly not more graphic or disturbing than, the evidence
already before the jury. See United States v. Mitchell, 502 F.3d 931, 990 (9th Cir. 2007)
(finding no prejudice where victim’s statement was “an inadmissible opinion about [the
defendant’s crime],” but denying relief because the comment was “brief, isolated, and
could not have had more than a marginal impact on the jury.”)
Further, given the trial court’s instructions, the failure to object was
harmless. See Lockett, 711 F.3d at 1239–40 (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, 639 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 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.”).
Because this claim of trial counsel ineffectiveness lacks merit, PCR counsel did not
perform ineffectively in failing to raise it. See Atwood, 870 F.3d at 1060; Sexton, 679 F.3d
at 1157. Morris cannot show “cause” under Martinez for the claim’s default. Claim Three
(C) is procedurally defaulted and barred from federal review.
Claim Three (D)
In his Reply, Morris withdraws Claim Three (D) of the Petition, alleging trial
counsel was ineffective for failing to investigate and challenge juror misconduct in a
motion for new trial contending that alternate jurors improperly participated in
deliberations. (See Doc. 21 at 187–88; Doc. 34 at 108.)
E. Claim Four
Morris alleges that counsel performed ineffectively in the pretrial stage by failing
to file a motion in limine objecting to evidence purporting to demonstrate necrophilia,
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Claim Four (A); by failing to investigate and challenge Morris’s statements to the police
and by failing to explain or place the statements in context, Claims Four (B)(1)–(2); by
failing to seek a severance of the multiple counts of first-degree murder, Claim Four (C);
and by failing to make appropriate objections during voir dire, Claim Four (D). (Doc. 21
at 190–215.)
Claims Four (A), (B)(1)–(2), and (D) were not raised in state court. (See id. at 190,
195, 212.) Because these claims would be precluded if raised in a successive post-
conviction petition, they are procedurally defaulted. See Ariz. R. Crim. P. 32.2(b); 32.1(b)–
(h); see also Spreitz, 202 Ariz. at 2, 39 P.3d at 526. Morris argues the default is excused
under Martinez by the ineffective assistance of PCR counsel. (See Doc. 21. at 190, 195,
212; Doc. 34 at 108, 113, 129.)
Martinez does not provide cause to excuse the procedural default because, as set
forth below, the claims are plainly meritless. See Hooper, 985 F.3d at 627; Atwood, 870
F.3d at 1059–60; Runningeagle, 825 F.3d at 982. Additionally, Morris fails to demonstrate
PCR counsel performed deficiently by failing to raise these IAC claims.
Claim Four (A)
Morris alleges counsel knew before trial that the prosecution would argue that
Morris engaged in necrophilia but failed to file a motion in limine under Arizona Rules of
Evidence 404(b) and 403 to preclude the evidence and argument. (Doc. 21 at 191.)
Under Rule 404(b) of the Arizona Rules of Evidence,
A defendant’s prior bad acts are not admissible “to show action in conformity
therewith,” but can be used to prove “motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.”
Ariz. R. Evid. 404(b). Although the jury must ultimately determine whether
the other act is proved, “before admitting evidence of prior bad acts, trial
judges must find that there is clear and convincing proof both as to the
commission of the other bad act and that the defendant committed the act.”
State v. Terrazas, 189 Ariz. 580, 582, 944 P.2d 1194, 1196 (1997). Even if
the trial judge concludes that the prior act is shown by clear and convincing
evidence, the judge must also (1) find that the act is offered for a proper
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purpose under Rule 404(b); (2) find that the prior act is relevant to prove that
purpose; (3) find that any probative value is not substantially outweighed by
unfair prejudice; and (4) give upon request an appropriate limiting
instruction. Id. at 583, 944 P.2d at 1197.
State v. Anthony, 218 Ariz. 439, 444, 189 P.3d 366, 371 (2008).
Morris asserts counsel should have argued that there was not clear and convincing
evidence to support the allegation that necrophilia had occurred and that the evidence to
support the theory—Morris’s semen in the vaginas of victims Velasquez and Noah, skin
slippage on victims Codman, Davis, and Noah, and anal defects on victim Castillo (the
“necrophilia evidence”)—therefore could not be admitted under Rule 404(b). (Doc. 21 at
193) (citing Anthony, 218 Ariz. at 444–45, 189 P.3d at 371–72).
It was apparent that the prosecutor intended to introduce the necrophilia evidence
to support the State’s theory that Morris killed the women for the purpose of having sex
with their bodies. During opening statements in the guilt phase, the prosecutor argued that
Morris killed for his own sexual gratification and kept the bodies because of the smell of
rot and decomposition and for the purpose of sexually gratifying himself. (RT 6/13/05 at
38–39.) During the trial, out of the jury’s presence, the prosecutor maintained that it was
the State’s theory that “the defendant killed these women so that . . . once they were dead,
he could have sex with them,” and supported this assertion by describing the “necrophilia
evidence.” (RT 6/20/05 at 78–80.) During closing arguments, the prosecutor argued more
specifically that Morris kept the bodies because he wanted to and did have sex with them,
claiming “[t]hat’s the whole reason why he’s killing. . . .” (RT 7/05/05 at 39; see also RT
07/5/05 at 37–39; RT 7/5/05 at 123–24.)
In determining whether “other act” evidence can be admitted for a purpose other
than propensity under Rule 404(b), the “appropriate question . . . is whether there was clear
and convincing evidence,” not merely a possible inference, that Morris committed
necrophilia. Anthony, 218 Ariz. at 445, 189 P.3d at 372. Although the Arizona Supreme
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Court found the evidence established a “reasonable inference” that Morris “engaged in
intercourse with the corpses of the victims,” the court also concluded that “the evidence in
this case does not compel the conclusion that Morris engaged in intercourse with the
corpses of the victims.” It is likely, therefore, that a Rule 404(b) objection, based on the
lack of clear and convincing evidence, would have been sustained at the guilt phase.
Even if counsel performed deficiently by failing to argue that there was no clear and
convincing evidence of necrophilia, there is no reasonable probability of a different
outcome. See Allen, 395 F.3d at 999 (“[E]ven if counsel’s conduct was arguably deficient,
in light of the overwhelming evidence of guilt, [the petitioner] cannot establish
prejudice”); Albert Johnson, 114 F.3d at 839–40 (explaining that the “potential prejudicial
effect of counsel’s deficient performance must be evaluated in light of” the strength of the
State’s case); Harden, 846 F.2d at 1232 (finding no Strickland prejudice where there was
overwhelming evidence of guilt); see also 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.”).
Even without evidence of necrophilia, the evidence of Morris’s guilt was still
overwhelming. The conclusion that he killed the victims while having sex with them was
supported by the evidence introduced at trial, including his own statements to the police.
(See ROA 491 at 4) (finding overwhelming evidence of defendant’s guilt of five murders);
Morris, 215 Ariz. at 339, 160 P.3d at 218 (finding evidence of Morris’s guilt
overwhelming).
The same is true during the aggravation phase of trial—there is no reasonable
probability of a different outcome. See Harden, 846 F.2d at 1232 (finding no Strickland
prejudice where there was overwhelming evidence of guilt). Absent the evidence of
necrophilia, the evidence establishing the “especially cruel” aggravating factor was still
overwhelming. (See ROA 491 at 4) (finding overwhelming evidence of the cruelty of each
of these murders). As recounted by the Arizona Supreme Court, “the State presented
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overwhelming evidence of cruelty. The medical examiner testified that all of the victims
would have experienced pain for some period before losing consciousness. Moreover, the
evidence suggests that at least three of the victims struggled with Morris before losing
consciousness: Morris’s DNA was under Davis’s fingernails, Noah’s fingernails were
broken, and the side of Velasquez’s face was bruised.” Morris, 215 Ariz. at 338, 160 P.3d
at 217.
During the penalty phase, “[t]he Rules of Evidence do not apply[.]” State v. Burns,
237 Ariz. 1, 28, 344 P.3d 303, 330 (2015). This means Rule 404(b) does not apply. State
v. Sanders, 245 Ariz. 113, 133, 425 P.3d 1056, 1076 (2018). In State v. Martinez, 218
Ariz. 421, 431, 189 P.3d 348, 358 (2008), the Arizona Supreme Court rejected the
argument that evidence of a prior bad act should be excluded from the penalty phase under
Rule 404(b). The court cited A.R.S. § 13-703(C), which provides that “the prosecution . . .
may present any information that is relevant to any of the mitigating circumstances . . .
regardless of its admissibility under the rules governing admission of evidence at criminal
trials.” Id. at 431, 189 P.3d at 358 n.11. Because the evidence was admissible during the
penalty phase, counsel’s failure to object did not constitute ineffective assistance. See Rupe
v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (“[T]he failure to take a futile action can never
be deficient performance.”); James, 24 F.3d at 27 (“[F]ailure to make a futile motion does
not constitute ineffective assistance of counsel.”).
Moreover, as discussed above in Claim Two (C), even if counsel had managed to
suppress the allegations of necrophilia, this would do very little to diminish the strength of
the aggravating factors, especially the multiple murders. The mitigating circumstances
presented by Morris would have remained relatively weak.
In conclusion, counsel did not perform deficiently by failing to object to the
necrophilia evidence during trial. And because trial counsel did not perform ineffectively,
PCR counsel did not perform ineffectively by failing to raise this claim. See Atwood, 870
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F.3d at 1060; Sexton, 679 F.3d at 1157. Morris therefore cannot show “cause” under
Martinez for the claim’s default. Claim Four (A) is therefore denied.
Claim Four (B)
Morris alleges counsel was ineffective for failing to challenge the admissibility and
reliability of Morris’s statement to police. (Doc. 21 at 195–207.) Morris asserts he was
prejudiced by counsel’s performance at all stages of trial because the statement was used
to show both that he had committed the murders and that he engaged in necrophilia. (Id.
at 202, 206–07.)
Additional Background
Phoenix Police Detectives Hutson and Barnes contacted Morris at his place of
employment, a local bar, on April 12, 2003, at approximately 4:15 p.m. (RT 6/15/05 at
65–66.) Morris agreed to speak with the detectives and was taken to the police station.
(Id. at 68; RT 6/16/05 at 26.) At the police station, Hutson placed Morris in an interview
room and advised him of his Miranda rights by reading to him from a card. (RT 6/16/05
at 27, 29–31; see also Trial Ex. 385; PCR Pet. Ex. O at Bates No. 470.)36 Morris indicated
he understood his rights and proceeded to answer questions. (PCR Pet. Ex. O at Bates No.
470.)
36 The videotape was broken up into sections that were played for the jury and
admitted as separate exhibits. (See ROA 180; RT 6/16/05 at 31 (Trial Ex. 366), 33–34
(Trial Ex. 367), 38 (Trial Ex. 369), 39 (Trial Ex. 368), 40 (Trial Ex. 370), 41 (Trial Ex.
380), 43 (Trial Ex. 381), 44 (Trial Ex. 371), 46 (Trial Ex. 372), 47 (Trial Ex. 373), 53 (Trial
Ex. 374); RT 06/20/05 at 8 (Trial Ex. 375), 10 (Trial Ex. 376, 378), 12 (Trial Ex. 379), 14
(Trial Ex. 377.) After the first few sections were played, counsel lodged an objection to
skipping around and viewing “bits and pieces,” and requested that the entire tape be played
except for the sections that had been previously ruled irrelevant and prejudicial. (RT
6/16/05 at 35.) The court indicated that, during the recess, counsel could identify any
additional portions that he believed needed to be played. (Id. at 37.) During the recess,
the court observed that counsel had been tracking the tape as it went along, and asked
counsel if he felt anything had been left out that should have been included. (Id. at 42.)
Counsel indicated it was difficult to track, but he would “get it through cross-examination
and if I have to play the whole tape in one sequence.” (Id.)
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The interrogation, which was audio and video taped, started around 5:20 p.m. and
lasted about three and one-half hours. (See RT 06/16/05 at 28–29, 31; RT 6/20/05 at 12;
see also Trial Ex. 382 (lodged at Doc. 35-1).) Hutson testified that he had no gun or
weapon drawn, and never threatened physical violence against Morris, promised him
anything if he would speak, or indicated that some sort of benefit would come to him if he
spoke to the detective. (RT 6/16/05 at 32.) Morris never indicated he was uncomfortable
or in personal distress, never requested food or to use the restroom, and never expressed a
desire to stop the interview. (RT 6/16/05 at 33; RT 6/20/05 at 22–23; RT 6/29/05 at 90–
92.) Hutson provided Morris with water, a slice of pizza, and took “probably three breaks
during that period.” (RT 6/20/05 at 12–13.)
During the interview, Morris described each of his encounters with the victims.
Morris admitted to knowing the five victims and provided two versions of
each victim’s death. In the first version, he claimed that each victim died of
a drug overdose while he was away from the camper. After discussing all
five victims, the detective conducting the interview told Morris that he did
not believe him.[37] Morris then stated that each victim asked him to choke
her during sex and that each accidentally died as a result of this conduct.
Morris, 215 Ariz. at 329, 160 P.3d at 208; (see also PCR Pet. Ex. O at Bates No. 489–545,
555–59, 561–86). Morris was arrested at the end of the interview. (PCR Pet. Ex. O at
Bates No. 617.)
At a case management conference on January 21, 2005, the prosecutor informed the
trial court that it was going to ask for a voluntariness hearing on Morris’s statement. (RT
1/21/05 at 8.) The trial court indicated that if the parties stipulated, it would rule on the
motion based on the court’s review of the videotape. (Id. at 9.) The parties agreed and the
hearing was calendared. (Id.) On the date set for the hearing, the prosecutor told the trial
37 The entire conversation “that took place between the time that [Morris] first told
[Hutson] about what happened and then the second version” of events was read into the
trial transcript during the state’s redirect examination of Hutson. (RT 6/29/05 at 111; see
also id. at 92–111.)
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court that there was a voluntariness hearing issue, but it would “go quick” and the parties
“can even submit it on the transcript.” (RT 05/20/05 at 4.) Defense counsel agreed and
said, “We won’t need an evidentiary hearing on that, I don’t believe, Judge.” (Id.)
After the jurors were sworn in and prior to opening statements, the prosecutor
informed the trial court that he was “going to attempt to use the defendant’s statement.”
(RT 6/13/05 at 37–38.) The trial court indicated that it had reviewed the statement and
didn’t “see any issues.” (Id. at 38.) Defense counsel indicated there was “one minor issue”
he wanted to put on the record. (Id.) Counsel stated that before Morris gave his second
version of events, he was asked if he wanted something to eat and he responded, “no, I’ll
wait until I get back to the bar.” (Id.) Counsel argued that when the police said “Okay,
that’s fine,” they effectively gave Morris an inducement, when in fact they knew Morris
was not going to be leaving. (Id.) The trial judge indicated that he had reviewed the
statement and did not see any voluntariness issues. (Id.)
Claim Four (B)(1)
Morris claims that counsel performed deficiently by agreeing the trial court could
determine, without an evidentiary hearing, whether Morris’s statement was voluntary
(Doc. 21 at 200), and by failing to unambiguously object to the statement’s admission or
argue for its suppression (id. at 201). Morris asserts that had defense counsel developed
and presented expert testimony regarding the effects that Morris’s mental and physical
condition had on his suggestibility, it was reasonably likely that his statement would have
been suppressed. (Id. at 201).
Morris claims that he had not slept much the night before the interview, that he had
donated plasma that day, and that he suffered brain damage that affected his processing
speed and verbal comprehension. (Id. at 198–202.) He further alleges that Hutson “put
extreme pressure on Morris to adopt certain responses, used suggestive questioning and
subtle coercion, and made implied promises to Morris.” (Id. at 199.)
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Morris’s claim fails, first, because counsel did unambiguously challenge Morris’s
statement on the grounds that it was induced by a promise. (See RT 6/13/05 at 38.) More
significantly, as determined by the trial court, the statement was voluntary. Counsel,
therefore, did not perform deficiently by failing to “unambiguously” object to the statement
or argue for its suppression.
“The admission of an involuntary or coerced confession violates a defendant's right
to due process under the Fourteenth Amendment.” Reno v. Davis, 46 F.4th 821, 836 (9th
Cir. 2022) (citing Jackson v. Denno, 378 U.S. 368, 385–86 (1964)). “A confession is
involuntary if a defendant’s ‘will was overborne’ or if the confession was not ‘the product
of a rational intellect and a free will.’” Id. (quoting Townsend v. Sain, 372 U.S. 293, 307
(1963)). “In determining whether a statement is voluntary, the court looks at the
surrounding circumstances and the combined effect of the entire course of the officer’s
conduct upon the defendant.” Pollard v. Galaza, 290 F.3d 1030, 1033 (9th Cir. 2002)
(citing United States v. Polanco, 93 F.3d 555, 560 (9th Cir. 1996)). “[E]vidence of
‘coercive police activity is a necessary predicate to the finding that a confession is not
‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment.’”
Reno, 46 F.4th at 836 (quoting Colorado v. Connelly, 479 U.S. 157, 167 (1986)).
To determine whether a confession was voluntary, courts consider the totality of
circumstances, including but not limited to, length, location, and continuity of the
interrogation; the suspect’s age and maturity, education, and physical conditions such as
deprivation of sleep or food; mental conditions, such as intelligence; and whether the
suspect was advised of his Miranda rights. See Schneckloth v. Bustamonte, 412 U.S. 218,
226 (1973); Withrow v. Williams, 507 U.S. 680, 693–94 (1993).
Morris asserts there were “numerous indicators” that his statement to Hutson was
involuntary, including his physical condition, susceptibility to suggestion, and Hutson’s
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use of deceptive tactics. (Doc. 21 at 198, 288–96.)38 Morris also asserts it was evident
from the circumstances of the interview that he did not understand his Miranda rights or
was relinquishing those rights. (Id. at 199.) The Court disagrees. Looking “at the
surrounding circumstances and the combined effect of the entire course of the officer’s
conduct upon the defendant,” Pollard, 290 F.3d at 1033, the Court finds Morris’s statement
was voluntary.
The record does not demonstrate any error in advising Morris of his Miranda rights
or that Morris did not understand them. Morris asserts that he was sleep deprived and
dehydrated from donating plasma, and that his fragile condition rendered him unable to
understand the “quick recitation” of his Miranda rights or that he was relinquishing those
rights. (Doc. 21 at 290–91.) Contrary to Morris’s assertion, however, there was nothing
“quick” about the Miranda recitation. Before advising Morris, Hutson placed the Miranda
warnings in the context of the television show “Cops,” which Morris indicated he had just
watched the day before, explaining to him that it is “just like on tv” and then proceeded to
read the Miranda rights from a card. (Id. at 470; RT 6/16/05 at 29–30.) When asked if he
understood the Miranda rights, Morris indicated “yes, sir.” (PCR Pet. Ex. O at Bates No.
470.)
The totality of circumstances evident from the record also do not suggest that
Morris’s will was overborne by his “fragile physical condition.” Morris, a twenty-four-
year-old high school graduate, was not handcuffed or restrained. He was given food and
water. He never asked to use the restroom or take a break. His answers were composed
and responsive. While Hutson “pressed him hard to tell a different story” (Doc. 21 at 196),
pointing out that “there’s no chance” five women just overdosed in Morris’s camper (PCR
38 Morris references the allegations set forth in Claim Nineteen to support this
assertion. (See Doc. 21 at 288–96.)
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Pet. O at Bates No. 558–59), he did not physically or psychologically intimidate, threaten,
badger, or otherwise undermine Morris’s ability to exercise his free will.
There is no reasonable probability of a different outcome if the defense team
researched and presented evidence that Morris suffered from brain damage. A suspect’s
age or low IQ does not render a confession involuntary absent the predicate of coercive
police conduct. Connelly, 479 U.S. at 164; see, e.g., Thompson v. Runnels, 705 F.3d 1089,
1097 (9th Cir. 2013) (“Although Thompson argues that he was more susceptible to the
officers’ tactics because he was only eighteen and had a learning disability, the state court
reasonably concluded that the record does not reveal such youthfulness and low
intelligence that Thompson would have been unusually vulnerable to the inspectors’
tactics.”) (internal quotations omitted); see also Clark v. Mitchell, 425 F.3d 270, 283–84
(6th Cir. 2005) (collecting cases where courts have found that defendants, despite their
mental retardation or low IQ, voluntarily waived their Miranda rights). There was no
coercive police conduct in Morris’s case.
Even assuming Morris was brain damaged, the record belies Morris’s argument that
his mental and physical conditions rendered him highly suggestible. Before agreeing with
Hutson’s suggestion that the victims “wanted to do something strange” (PCR Pet. O at
Bates No. 561), Morris rejected the first story Hutson offered to explain the murders by
suggesting the women might “piss [Morris] off” because they smoked drugs in his camper
(id. at Bates No. 559), something Morris explained was a show of “disrespect” (Id. at Bates
No. 554). Morris also remained adamant that he was not responsible for the choking or
strangling deaths of two additional women despite Hutson’s suggestion they died under
similar circumstances:
Hutson: You said you didn’t recognize her. I, I think you do.
Morris: Actually I don’t. Because . . .
Hutson: Well I think you do.
. . .
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Morris: Truthfully sir, I do not know her.
(Id. at Bates No. 549–50; see also id. at 591–97, 613–14.)
Nor was the discussion about food misleading. When Hutson first offered to bring
Morris food, Morris said “I’ll eat when I get back to the bar,” and Hutson replied “All
right.” (PCR Pet. Ex. O at Bates No. 548.) Later, when Hutson commented that he was
hungry and would like to think his boss would order some pizza, Morris agreed he was also
“a little hungry,” but “I can eat when I get back to the bar.” (Id. at Bates No. 549.) Hutson
responded, “Uhm, you know, I appreciate you talking to me and ah, I, and, I’m sure you
feel a little better about it. The fact that you’re talking . . . .” (Id. at Bates No. 549.)
Although Hutson did not correct Morris’s belief that he would be returning to the bar, his
responses were not an implied or express promise of a tangible benefit. See e.g., United
States v. Leon Guerrero, 847 F.2d 1363, 1367 (9th Cir. 1988) (statement that defendant’s
cooperation would be taken into consideration did not render statement involuntary where
no promise was made of a tangible benefit, for example, no promise of “no prosecution,
reduced charges, or a recommendation of a lenient sentence.”); United States v. McCowan,
(Report and Recommendation) CR 17-00839-TUC-CKJ (EJM), 2018 WL 1026784, * 17
(D. Ariz. Feb. 02, 2018) (finding no tangible benefit promised where agent did not tell
defendant she would go home or would not be charged with a crime if she cooperated with
law enforcement, despite agent telling defendant she definitely would not get to go home
today if she did not talk with him), adopted by (Order) 2019 WL 993756 (D. Ariz. Feb. 21,
2018).
Nor has Morris alleged any police misconduct amounting to coercion. Morris
asserts Hutson constrained Morris’s response to his questioning to two alternatives,
knowing Morris would be less likely to reject both scenarios. (Doc. 21 at 292–93) (citing
PCR Pet. O at Bates No. 560) (stating Morris could choose door number one, that he
provided the victims with drugs, or door number two, that the victims wanted Morris to
restrict their airways because they enjoyed it). Even if the detective’s suggestion could be
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considered a “strategic deception,” “[p]loys to mislead a suspect or lull him into a false
sense of security that do not rise to the level of compulsion or coercion to speak are not
within Miranda’s concerns.” Illinois v. Perkins, 496 U.S. 292, 297 (1990); see also
Pollard, 290 F.3d at 1034 (“[M]isrepresentations made by law enforcement in obtaining a
statement, while reprehensible, does not necessarily constitute coercive conduct.”)
Because Morris has failed to offer any evidence of “coercion, undue influence, or
overreaching by the police at the time he made the statements,” the Court concludes that
the statements were not “involuntary” within the meaning of the Due Process Clause. See
Connelly, 479 U.S. at 157, 163–67.
The circumstances of Morris’s interview contrast sharply with cases where coercion
has been found. See, e.g., Arizona v. Fulminante, 499 U.S. 279, 287–88 (1991) (finding
that government informant’s promise to protect defendant from a credible threat of
violence rendered confession involuntary); Mincey v. Arizona, 437 U.S. 385, 398–99
(1978) (finding confession involuntary where defendant had been seriously wounded a few
hours earlier, was “depressed almost to the point of a coma,” was in an intensive care unit,
complained of “unbearable” pain, gave incoherent answers, declined to answer questions
without a lawyer, and was questioned while lying in a hospital bed); Rodriguez v.
McDonald, 872 F.3d 908, 924 (9th Cir. 2017) (finding police coercion where police
officers suggested to defendant that he would be imminently charged with murder but that
cooperation would result in more lenient treatment from the court).
Because there is no evidence that the statements were in fact involuntary, counsel’s
decision not to request a voluntariness hearing, present expert testimony regarding Morris’s
suggestibility, or “unambiguously” object to the use of the statements did not prejudice
Morris. See Clabourne v. Lewis, 64 F.3d 1373, 1379 (9th Cir. 1995) (finding no ineffective
assistance in failing to present evidence of effects of medication on voluntariness where
defendant could point to no coercive police activity).
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Claim Four (B)(2)
Morris alleges defense counsel was ineffective for failing to investigate and present
grounds on which to challenge the reliability of his statement to the police. (Doc. 21 at
202–07.) Morris claims that trial counsel should have done more to discount his second
story to police by educating the jury in the opening statement about the pressures of
custodial police interrogations, objecting to the prosecutor’s use of only discrete sections
of the videotaped interview, playing the entire tape for the jury, and presenting expert
testimony regarding police interrogations to show that Morris was particularly suggestible
and gave his second version of events as a result of Hutson’s deceptive tactics. (Id. at 205–
06.) Morris asserts that because the second version of events was the key piece of evidence
against him, there is a reasonable likelihood that the outcome of every stage of Morris’s
trial would have been different if counsel had explained the evidence and undermined its
reliability. (Id. at 207.)
Contrary to Morris’s assertion, trial counsel did attempt to “discount Morris’s
second story to police” during his cross-examination of the medical examiners and Hutson,
as the following testimony demonstrates. Dr. Horn testified on cross-examination that
Castillo’s autopsy revealed no evidence of trauma and no cause of death and that
toxicology results demonstrated evidence of cocaine and alcohol use. (RT 6/15/05 at 98–
101.) Dr. Horn further testified that a person’s susceptibility to cocaine can’t be predicted,
as it “can be fatal by having a cardiovascular reaction.” (Id. at 100.) Dr. Hu testified on
cross-examination that the petechial hemorrhaging observed in his examination of
Codman’s body, which was consistent with strangulation, could also be caused by
decomposition. (RT 6/28/05 at 49–50.) Additionally, Dr. Hu testified that the bulging of
eyes and tongue he observed can be caused by postmortem gas formation and
decompositional change. (Id. at 50.)
Counsel also elicited from Dr. Hu that there was no evidence of significant trauma
or strangulation on Codman’s body, but there was evidence of toxic levels of drugs.
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Counsel further focused on how Dr. Hu amended his report to change Codman’s cause of
death from combined drug toxicity to ligature strangulation only after hearing Morris’s
statement to police. (Id. at 51–60.) Dr. Shvarts testified that although petechial
hemorrhages, like those in Velasquez’s right eye, were consistent with strangulation, they
were not “exclusive to strangulation,” and his autopsy report indicated that a contributing
cause of death was drug intoxication. (RT 6/29/05 at 24–29.)
Although Dr. Keen had testified that Noah died from a ligature strangulation
resulting in asphyxia, during cross examination defense counsel directed the juror’s
attention to the drugs that were found in Noah’s system. (RT 6/27/05 at 108, 116–19.) Dr.
Horn testified that, based on Davis’s autopsy, he could not conclude that a homicide had
occurred, and the only cause of death supported by his examination, standing alone, was
cocaine intoxication. (RT 6/26/05 at 47–48.)
In closing argument, consistent with his cross-examination of the medical
examiners, trial counsel argued that the victims died of accidental drug overdoses. (RT
7/5/05 at 99–113; see id. at 104–05 (“[T]he strangulation theory is contrary to the physical
findings in those bodies, and cocaine intoxication is absolutely consistent with the physical
findings in those bodies.”)).
Defense counsel also objected to the prosecutor’s piecemeal presentation of the
videotaped interview, arguing he should be allowed to play the entire tape at once, in
context. (RT 6/16/05 at 35.) The court disagreed, stating it was “not going to make [the
prosecutor] play the entire tape if he doesn’t intend to,” but would let defense counsel play
any additional portions that he thought needed to be played. (Id. at 36–37.)
On cross-examination, defense counsel placed Morris’s statement in context by
questioning Hutson about portions of the videotape that weren’t played for the jury. (RT
6/29/05 at 66–75, 79–87.) Defense counsel clarified, through questioning of Hutson, that
the discussion did not occur in the same order in which the jury heard the videotape. (See
RT 06/29/05 at 72) (“[Defense counsel]: Now, when you had your discussion with
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[Morris], you didn’t have it in the same order as the videotapes that were played, did you?
. . . [Hutson]: Correct.”). Defense counsel confirmed that Morris first described the death
of each of the five victims by overdose before describing how he strangled or choked them.
(Id. at 80.) Counsel also confirmed there was additional conversation in the intervening
period between Morris’s first and second description of events and that, during that time,
Hutson suggested to Morris that something other than drug ingestion had happened,
specifically, that something was placed over the victim’s faces. (Id. at 81–83.) On redirect,
the entire conversation that occurred between each version of events was read to the jury.
(Id. at 92–110.)
During closing argument, defense counsel questioned Hutson’s interrogation
technique, describing Morris as “rather naïve,” providing the example of Morris stating he
would eat when he got back to the bar. (RT 7/05/05 at 100.) Counsel highlighted the way
Hutson questioned Morris—disagreeing with Morris’s denial that he placed something
over their heads, and giving him only two options for what happened:
[D]oor number one and door number two, . . . and door number two was
something had to be placed around their neck.
People - - some people like that. Don’t make a face. Remember that portion
of the reading? Don’t make a face. People do like that. They like to be
strangled. It gets them high while they’re doing drugs. All of that was what
was said to Cory.
[Morris] then tells the detectives that he strangled them, and if you listen
carefully to the tapes, and if you put it together with what the medical
examiner says, his story about strangulation is more inconsistent with what
the medical examiner said than the cocaine, which is what he told them first.
But he was told, That can’t be it. We’re not going to accept that one. No, no,
no, no, no.
(Id. at 100-01.) Counsel argued that when Morris’s version of events was not accepted by
Hutson, Morris gave them “another statement consistent with what he had been told, and
what he had been told, there was damage to the neck. They were choked. People like to
do this sort of thing.” (Id. at 112.)
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Thus, contrary to Morris’ assertion, counsel did attempt to undermine the reliability
of Morris’s second statement to the police through questioning of the medical examiners
and in his argument to the jury. Additionally, because there is no significant evidence that
the statements were the result of the pressures of custodial police interrogation or deception
or that Morris was particularly suggestible, trial counsel did not perform deficiently by
failing to show that Morris’s second story was unreliable.
As discussed in Claim Four (B)(1), and as evident from viewing the videotape and
reading the transcript in its entirety, Hutson did not compel, coerce, or deceive Morris to
obtain the second story. Rather, after Morris gave his first version of events of how each
woman died, Hutson expressed his disbelief that five women died of an overdose in
Morris’s camper and opined that, if Morris picked up five women who all died of drug
overdoses in his camper, he was the “unluckiest guy in the world” because there was just
“no chance.” (PCR Pet. Ex. O at Bates No. 558.) Hutson also stated that the women did
“not have enough dope to overdose,” and that the medical examiner would be looking at
the victims’ appearance, especially their necks and skin tissue, and that Morris needed to
tell him what really happened. (Id. at Bates No. 560.) Hutson then offered Morris two
scenarios of what might have happened, that Morris gave the women drugs to go with him
to his camper or that they brought their own drugs but wanted Morris to do “something
really weird” because it enhanced their sexual pleasure. After this, Morris, not Hutson,
provided the details of each killing.
For example, Morris stated that Castillo initially told him to put a blanket over her
head and then told him to wrap his necktie around her neck and ride her like a horse. (Id.
at 561–62.) Morris’s second story regarding the necktie—a fact that was not suggested by
Hutson—matched the evidence. Castillo was found severely decomposed on the floor of
Morris’s camper with a necktie around her neck. (RT 6/15/05 at 97.) Morris provided
additional details regarding each strangulation that had not been suggested by Hutson, and
some of which were contrary to what Hutson suggested. (See PCR Pet. O at Bates No.
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520, 568–70) (disagreeing with Hutson that Noah was strangled with a rope); (id. at Bates
No. 581) (explaining he used his hands to choke Velasquez, contradicting Hutson that
something similar to Noah had happened with Velasquez). Morris has not shown that any
further attempt by trial counsel to discount his second story would have changed the
outcome, and has not shown ineffective assistance. See Rupe, 93 F.3dat 1445 (“[T]he
failure to take a futile action can never be deficient performance”).
Conclusion
Because the underlying claims of trial counsel ineffectiveness are without merit,
PCR counsel did not perform ineffectively in failing to raise these claims. See Atwood,
870 F.3d at 1060; Sexton, 679 F.3d at 1157. Claims Four (B)(1) and (2) are barred from
federal review.
Claim Four (C)
Morris alleges trial counsel was ineffective for failing to seek a severance of the five
counts of first-degree murder. (Doc 21 at 207–12.) Morris raised this claim in his PCR
petition, asserting trial counsel was ineffective for failing to move to sever the murder
counts under Rule 404(b) of the Arizona Rules of Evidence and in violation of Morris’s
constitutional right to a fair trial and due process. (ROA 307 at 47–54.)
The PCR court denied Morris’s IAC claim, finding the offenses properly joined
under Rule 13.3(a)(1) of the Arizona Rules of Criminal Procedure because the offenses
were “of the same or similar character.” (ROA 354 at 8.) The court further found
severance unavailable under Rule 13.4(b) because “evidence of the other offenses would
be admissible under applicable rules of evidence if the offenses were tried separately.”
(Id.) The court explained:
All five offenses involved a female prostitute or transient who was strangled
while having sex with defendant, and whose body was found in the vicinity
of defendant’s yard over a period of a few months. Defendant claimed in his
statements to police that the deaths were either a mistake or accidental. Thus,
the other offenses would have been admissible at separate trials as proof of
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mistake or accident. Defendant has not shown that counsel was deficient for
failing to move for severance or that he was prejudiced by all five counts
being tried together.
(Id.) The Arizona Supreme Court denied review without comment. (PR 27.)
Morris asserts the state court’s rejection of this claim was contrary to or involved
an unreasonable application of clearly established federal law, and constituted an
unreasonable determination of the facts in light of the evidence presented. (Doc. 21 at
207.)
To be entitled to relief from counsel’s failure to move for severance, Morris must
show both that the motion would have been granted and that he was prejudiced by the
unsevered trial. See United States v. Rodriguez–Ramirez, 777 F.2d 454, 458 (9th Cir. 1985)
(no ineffective assistance of counsel when defendant failed to show severance motion
“could have been granted” and he “suffered prejudice as a result of the unsevered trial”).
Under Arizona law, two or more offenses may be joined in an indictment if they
“[a]re of the same or similar character.” Ariz. R. Crim. P. 13.3(a)(1). But a defendant is
entitled to severance if, as here, the offenses are joined only because they are of the same
or similar character, “unless evidence of the other offense[s] . . . would be admissible under
applicable rules of evidence if the offenses were tried separately.” Ariz. R. Crim. P.
13.4(b); see also State v. Ives, 187 Ariz. 102, 106, 927 P.2d 762, 766 (1996) (“[A]nalysis
of Rule 13.3(a)(1) is related in part to Rule 404(b), Ariz. R. Evid.; if a defendant’s motion
to sever is denied and joinder was based only on the similarity between the offenses,
defendant only has a remedy if the prior act evidence would not have been admissible under
Rule 404(b).”)
Morris argues that the PCR court, in finding the offenses similar under Rule
13.3(a)(1), “painted the offenses in broad strokes and overlooked and ignored evidence of
the offenses’ dissimilarity to one another,” and made an unreasonable determination of
facts based on the evidence before the court. (Doc. 21 at 210.) Morris points to the fact
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that, unlike the other four victims, Velasquez was found clothed; only two victims had
Morris’s semen in their vaginas; the autopsy report for Codman and Davis originally listed
their causes of death as drug overdoses; and two other persons had previously been
suspected of Codman’s murder. (Id.) (citations omitted). While these facts demonstrate
differences in some of the details surrounding the offenses, reasonable minds could agree
with the state court’s determination that the offenses were sufficiently similar for purposes
of joinder under Rule 13.3(a)(1): similarity in victims (prostitutes or transients), where the
victim’s bodies were found (in or near Morris’s camper), the cause of death (strangling or
asphyxiation), and the relatively short seven-month period in which the five killings
occurred (September 2002 to April 2003). The state court factual finding that the offenses
were the similar is not unreasonable. See State v. Stuard, 176 Ariz. 589, 596, 863 P.2d
881, 888 (1993) (“The facts make it quite apparent that the charges were ‘of the same or
similar character.’ Each involved an attack and beating of an elderly woman living alone;
each involved infliction of similar injuries.”); see also Ayala, 829 F.3d at 1094 (“A state
court’s factual findings are unreasonable if ‘reasonable minds reviewing the record’ could
not agree with them.”).
Morris clams that it was unreasonable for the state court, with no basis, to conclude
that he would claim the second version of events to be true at trial – that the women asked
him to strangle them and they died by accident. (Doc. 21 at 211.) Because the first version
of events was “ultimately the defense’s theory of the case,” Morris argues, the evidence of
the other offenses should not have been admitted because the defense did not argue mistake
or accident at trial. (Id.) (citing RT 7/05/05 at 99–113). Morris relies on the Arizona
Supreme Court’s decision in State v. Ives, 187 Ariz. 102, 927 P.2d 762 (1996), to support
this position.
In Ives, the court held that, “[u]nless there is some discernible issue as to defendant’s
intent (beyond the fact that the crime charged requires specific intent), the state may not
introduce evidence of prior bad acts as part of some generalized need to prove intent in
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every case.” Ives, 187 at 110, 927 P.2d at 770. In Ives, the defendant was charged with
multiple counts of child molestation and “denied ever having touched any of the girls in a
sexual manner.” Id. at 109, 927 P.2d at 769. The court explained that, even “a cursory
reading of the record . . . indicates that the issue in this case was whether the defendant
committed the acts at all, not what his state of mind was when he committed them.”39 Id.
at 110, 927 P.2d at 770. If intent is not at issue, and no other valid 404(b) grounds exist,”
the court explained, it failed “to see why propensity evidence is permissible in specific
intent cases but not those involving general intent crimes.” Ives, 187 Ariz. at 110, 927 P.2d
at 770.
In this case, however, Morris did not make an opening statement or articulate his
theory of defense until closing arguments. Unlike Ives, who “steadfastly maintain[ed] that
he simply did not commit any of the criminal acts in question,” leaving “no issue as to
intent and no danger of shifting defense theories to justify the admission of the prior bad
acts,” Ives, 187 Ariz. at 110, 927 P.2d at 771, Morris did not take a clear position on his
defense before or even at the start of trial. As Morris himself asserts, he “ultimately”
adopted the first version of events during closing arguments. (See Doc. 21 at 198.) See,
e.g., State v. Harmon, No. 1 CA-CR 12-0091, 2013 WL 4080760, at *5 (Ariz. Ct. App.
39 In Ives, the Arizona Supreme Court noted that while courts are split on the issue
of whether a defendant may remove intent as an issue by a blanket denial of participation
in a criminal act, it was adopting the approach taken by the Second Circuit Court of Appeals
in United States v. Colon, 880 F.2d 650, 657 (2nd Cir. 1989). In Colon, the Second Circuit
“recognized a distinction between defense theories that claim that the defendant did not do
the charged act at all, and those that claim that the defendant did the act innocently or
mistakenly, with only the latter truly raising a disputed issue of intent.” Id. (quoting Colon,
880 F.2d at 657). The Arizona Supreme Court emphasized that in Colon, the court held
that “to take [the intent issue] out of a case, a defendant must make some statement to the
court of sufficient clarity to indicate that the issue will not be disputed,” noting that the
circumstances in Colon were sufficient to show that the defendant’s theory of the case was
“an offer to stipulate intent out of the case.” Id. (quoting Colon, 880 F.2d at 659). Here,
there was no such offer by Morris to stipulate intent out of the case, nor does the record
demonstrate circumstances equivalent to such an offer.
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Aug. 13, 2013) (distinguishing Ives and finding the potential for “shifting defense theories”
due to the defendant’s disclosure of “a variety of defenses,” including lack of intent, and
the failure to disclose a defense of complete denial.”). Because Morris’s defense was not
clear, admitting evidence of the five murders to rebut any claim of mistake or accident
would not have been error.
Furthermore, Morris’s first version of events also involved mistake or accident. He
claimed each of the victims died in his trailer from an accidental drug overdose after he
had sex with them. The occurrence of five similar deaths, in his trailer, in a seven-month
period would certainly be relevant to rebut this claim of mistake or accident. The chances
that five separate women died from accidental drug overdoses after sex with Morris in his
trailer are vanishingly small. See e.g., Lee, 189 Ariz. at 599, 944 P.2d at 1213 (finding
defendant’s statements describing the details of each of two murders relevant to the other
because the “unlikeliness” of defendant’s claim that he was forced on two separate
occasions to shoot his robbery victims because they attacked him “tends to show that
neither shooting was accidental.”); see also Hernandez, 7 Ariz. App. at 203, 437 P.2d at
955 (reasoning that one incident “may have been accidental would be a likely possibility,
but that two such instances were coincidental is substantially less likely”) abrogated on
other grounds by State v. Harvill, 106 Ariz. 386, 391, 476 P.2d 841, 846 (1970).
Finally, Morris alleges the PCR court did not address his argument that defense
counsel should have moved for severance under Rule 13.4(a), which provides for severance
when it is “necessary to promote a fair determination of the guilt or innocence of any
defendant of any offense.” (Doc. 21 at 198) (citing ROA 307 at 48). The PCR court’s
cross-admissibility holding, however, forecloses any argument that joinder would render
Morris’s trial fundamentally unfair. See Walden v. Shinn, 990 F.3d 1183, 1197 (9th Cir.
2021) (holding petitioner’s argument that joinder of counts rendered his trial fundamentally
unfair foreclosed by Arizona Supreme Court’s holding that each of the counts would have
been admissible in separate trials); Sandoval v. Calderon, 241 F.3d 765, 772 (9th Cir. 2000)
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(holding evidence of separate killings, which would have been cross-admissible in separate
trials to establish the State’s allegations of multiple murder special circumstances, “dispels
the prejudicial impact of joining all counts in the same trial.”).
Morris has not established a violation of Strickland based on counsel’s failure to
move for severance. He has failed to show the request would have been granted. The PCR
court’s finding that trial counsel was not ineffective was both a reasonable application of
Strickland and a reasonable determination of the facts, and Morris is not entitled to habeas
relief. Claim Four (C) is denied.
Claim Four (D)
Morris claims trial counsel was ineffective for failing to make appropriate
objections during voir dire. (Doc. 21 at 212–15.) He alleges four biased jurors were seated,
thereby demonstrating prejudice as a result of defense counsel’s failure to challenge them
for cause. (Id. at 213; Doc. 34 at 131–32.) Morris also claims that counsel was ineffective
for failing to object to the Batson40 violation he alleges in Claim Seventeen. (Id. at 214.)
Under Strickland, “the defendant must show that counsel’s representation fell below
an objective standard of reasonableness.” 466 U.S. at 688. “The conduct of voir dire ‘will
in most instances involve the exercise of a judgment which should be left to competent
defense counsel.’” Hovey v. Ayers, 458 F.3d 892, 909–10 (9th Cir. 2006) (finding no
deficient performance in counsel’s failure to question jurors about their reactions to pretrial
publicity) (quoting Gustave v. United States, 627 F.2d 901, 906 (9th Cir. 1980)); see also
Wilson v. Henry, 185 F.3d 986, 991 (9th Cir. 1999) (holding there was no ineffective
assistance where counsel relied on jurors’ statements that they would be fair and follow the
law without asking about their views on criminal history). The Court “need not decide
whether counsel’s performance was deficient before determining whether any prejudice
40 Batson v. Kentucky, 476 U.S. 79 (1986).
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was suffered by the defendant because of the alleged errors.” Wilson, 185 F.3d at 988
(citing Strickland, 466 U.S. at 697).
Establishing Strickland prejudice in the context of juror selection requires a
showing that, as a result of trial counsel’s failure to challenge the seating of the jurors, “the
jury panel contained at least one juror who was biased.” Davis v. Woodford, 384 F.3d 628,
643 (9th Cir. 2004) (citing United States v. Quintero–Barraza, 78 F.3d 1344, 1349 (9th
Cir.1995)). “A juror is biased if he or she has ‘such fixed opinions that [he or she] could
not judge impartially the guilt of the defendant.’” Dickey, 69 F.4th at 647 (quoting
Quintero-Barraza, 78 F.3d at 1349).
In Witherspoon v. Illinois, 391 U.S. 510 (1968), the Supreme Court “set forth the
rule for juror disqualification in capital cases.” White v. Wheeler, 577 U.S. 73, 77 (2015).
Capital defendants are entitled to a jury not “uncommonly willing to condemn a man to
die.” Witherspoon, 391 U.S. at 521. The Supreme Court “with equal clarity has
acknowledged the State’s ‘strong interest in having jurors who are able to apply capital
punishment within the framework state law prescribes.’” Wheeler, 577 U.S. at 77 (quoting
Uttech v. Brown, 551 U.S. 1, 9 (2007)). A juror may be excused for cause only if he or she
is “substantially impaired in his or her ability to impose the death penalty under the state-
law framework.” Uttecht, 551 U.S. at 9 (citing Wainwright v. Witt, 469 U.S. 412, 424
(1985)). A juror may be excused for cause “where the trial judge is left with the definite
impression that a prospective juror would be unable to faithfully and impartially apply the
law.” Witt, 469 U.S. at 425–26. “A juror who will automatically vote for the death penalty
in every case will fail in good faith to consider the evidence of aggravating and mitigating
circumstances as the instructions require him to do.” Morgan v. Illinois, 504 U.S. 719, 729
(1992).
Morris contends that counsel should have moved to strike five jurors for cause:
Panelist 27, who was not seated on the jury, and K.N., C.J., A.L., and A.M., who were
seated (Id. at 213.) The Court need not address Panelist 27. See Ross v. Oklahoma, 487
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U.S. 81, 88 (1988) (“So long as the jury that sits is impartial, the fact that the defendant
had to use a peremptory challenge to achieve that result does not mean the Sixth
Amendment was violated.).
Each of the seated jurors stated they “would be willing to follow the law as
instructed by the judge, whether or not [they] personally agree[d] with [it].” (ROA 107,
Jury Questionnaire, Panelist 19 at 20 (A.M.); ROA 108, Jury Questionnaire, Panelist 22 at
20 (K.N.); ROA 110, Jury Questionnaire, Panelist 41 at 20 (A.L.); ROA 110, Jury
Questionnaire, Panelist 49 at 20 (C.J.)). Trial counsel’s reliance on these statements
“merits deference as a tactical decision.” Wilson, 185 F.3d at 991 (citing Strickland, 466
U.S. at 689).
Moreover, Morris has also not established that the seated jurors were predisposed
to convict or impose death, or that they were otherwise impartial or biased. Morris alleges
counsel should have moved to strike two jurors for cause, K.N. and C.J., because they
indicated disagreement with the law that limits aggravating circumstances to a specified
set of factors. (Doc. 21 at 214) (citing RT 6/06/05 at 147; RT 6/08/05 at 16–17).
K.N and C.J. noted they disagreed with the law as described by the following
statement in the jury questionnaire:
The law allows only a very few and very specific aggravating factors to be
used, if proven beyond a reasonable doubt and not overcome by mitigation,
to support the state’s request for a death sentence. No other fact or detail
about the case or the person accused may be considered as [an] aggravating
factor.
(ROA 108, Jury Questionnaire, Panelist 22 at 17; ROA 110, Jury Questionnaire, Panelist
49 at 17.) K.N. and C.J. both indicated they could follow this law even if they disagreed
with it. (ROA 108, Jury Questionnaire, Panelist 22 at 17; ROA 110, Jury Questionnaire,
Panelist 49 at 17.)
In discussing her disagreement with the statement during voir dire, K.N. stated:
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I think every case is probably different from each one. Every one is unique,
and I don’t think that we have come across everything that can possibly be
mitigating or aggravating factor. And so until I would see all the evidence, I
don’t agree with that law.
(RT 6/6/05 at 147.) After defense counsel informed K.N. that she was correct regarding
mitigating evidence, but that the law requires consideration of only specific aggravating
factors, K.N. confirmed that she could follow the law. (Id. at 147–48.) K.N. also agreed
that she could “keep an open mind throughout the proceedings, listen to the evidence . . .
and then consider everything that is presented . . . without going in with a preconceived
notion that this is appropriate or that is appropriate.” (Id. at 145–46.)
Juror C.J. explained her negative response to the statement regarding aggravating
factors in the jury questionnaire, stating that “[i]t would be nice to know if defendant has a
past of violence or other factors.” (See ROA 110, Jury Questionnaire, Panelist 49 at 18.)
Defense counsel explored this topic with her during voir dire, explaining that “there are
only very few and very specific things that the State can allege and must prove before a
case can be considered a capital case and must prove it to the jury beyond a reasonable
doubt.” (RT 6/08/05 at 16.) C.J. explained her answer to the question:
I’m not really sure when I filled that out I really understood the difference of
aggravating and mitigating, but my interpretation was . . . often you hear the
jury doesn’t find out until after the fact that there have been previous crimes
. . . and it would be nice if, as a juror, you knew previous crimes that the
defendant . . . had committed.
(Id. at 16–17.) C.J. confirmed that if she were told that “only certain things can make a
particular murder qualify as a capital case for the very reason that a jury is not to consider
some things that it might think is important because the law says they are not,” she would
follow the law and would have no “nagging concern in the back of [her] mind there must
be something else [she] could consider here because they’re not telling us everything[.]”
(Id. at 17.)
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Morris has not established that Jurors K.N. or C.J. held fixed views on the death
penalty or on Morris’s guilt. See Davis, 384 F.3d at 643 (finding no actual or implied bias
where jurors answers to voir dire questions demonstrate they did not hold fixed views on
the death penalty or on defendant’s guilt). Neither of the juror’s explanations regarding
their disagreement with the law limiting the use of aggravating circumstances to a “very
few and very specific aggravating factors” leaves the impression that they “would be
unable to faithfully and impartially apply the law.” Witt, 469 U.S. at 425–26. Both jurors
indicated in their responses to the jury questionnaire and during voir dire that they could
“lay aside [their] impression[s] or opinion[s] and render a verdict based on the evidence
presented in court.” Irvin v. Dowd, 366 U.S. 717, 722–23 (1961).
Morris alleges Juror A.L. (Panelist 41) should have been struck for cause because
she knew Dr. Keen on a professional basis. (Doc. 21 at 214) (citing RT 06/07/05 at 138,
140). A.L. noted in her questionnaire that she recognized the names of Dr. Phillip Keen
and Dr. Mark Fischione, with the Maricopa County Medical Examiner’s Office (“OME”),
because she “worked indirectly” with the OME while “processing donations for Science
Care Anatomical,” where she was a customer service manager for their research donor
program. (ROA 110, Jury Questionnaire, Panelist 41 at 5, 13.) A.L. explained that the
“OME had to determine or sign off [cause of death] on death certificates.” (Id. at 13.)
During voir dire, Juror A.L. further explained that she did not have contact with Dr. Keen
personally, only on a professional basis while working with the donor program “to use their
services for finalizing cause of death.” (RT 06/07/05 at 140.)
In Tinsley v. Borg, the Ninth Circuit cautioned against “formulating categories of
relationships which bar jurors from serving in certain types of trials,” but nonetheless found
instructive an examination of the types of relationships where other courts had “grappled
with the issue of implied bias.” 895 F.2d 520, 527–28 (9th Cir. 1990). The court noted
that implied bias has been found (1) “where the juror is apprised of such prejudicial
information about the defendant that the court deems it highly unlikely that he can exercise
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independent judgment even if the juror states he will,” id. at 528; (2) “where a juror or his
close relatives have been personally involved in a situation involving a similar fact
pattern,” id. (citations omitted); and (3) “where it is revealed ‘that the juror is an actual
employee of the prosecuting agency, that the juror is a close relative of one of the
participants in the trial or the criminal transaction, or that the juror was a witness or
somehow involved in the criminal transaction,’” id. (citing Phillips, 455 U.S. at 222 (J.
O’Connor, concurring)). Implied bias may also be found when “the relationship between
a prospective juror and some aspect of the litigation is such that it is highly unlikely that
the average person could remain impartial in his deliberations under the circumstances,”
Fields, 503 F.3d at 770 (internal quotation marks omitted), or when the juror has
“materially and repeatedly” lied to stay on the panel for any reason, even if not done
vindictively, Dyer v. Calderon, 151 F.3d 970, 983 (9th Cir. 1998) (en banc).
With these kinds of disqualifying relationships in mind, Morris has not shown A.L.
was actually or impliedly biased based on her familiarity with Dr. Keen. A.L’s professional
knowledge of Dr. Keen does not establish such a close relationship with the litigation that
it is highly unlikely she could remain impartial.
Morris also suggests that A.L. was biased because she opined that the death penalty
is imposed “too seldom” and “should be enforced more often.” (ROA 110, Jury
Questionnaire, Panelist 41 at 16.) A.L. also noted, however, that a life sentence without
possibility of parole was “somewhat appropriate—depending on the circumstances,” and
that if she believed life was the appropriate sentence, she would be able to enter such a
verdict, and was willing to accept and follow the law as instructed by the judge. (ROA
110, Jury Questionnaire, Panelist 41 at 17, 20.) During voir dire, A.L. confirmed she would
be willing to follow the judge’s instructions and impose the death penalty based only on
the facts and circumstance of the case and could put aside her belief that the death penalty
is imposed too seldom. (RT 06/07/05 at 138.) These affirmations clarified any ambiguity
in the questionnaire answers and dispelled any notion that A.L. was biased. See Bible v.
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Schriro, 497 F. Supp. 2d 991, 1018 (D. Ariz. 2007) (“To the extent that the answers on a
juror’s questionnaire were ambiguous or inconsistent, such difficulties were resolved or
offset by the juror’s unequivocal, affirmative responses to direct inquiries into his . . .
ability to serve fairly and impartially.”).
These circumstances are not so “extraordinary” that a finding of implied bias is
warranted. Dyer, 151 F.3d at 981; see also Tinsley, 895 F.2d at 527–28; United States v.
Mitchell, 568 F.3d 1147, 1151 (9th Cir. 2009) (cautioning that courts should presume juror
bias only in “extreme” situations).
Finally, Morris alleges that juror A.M. heard about the case on the news and knew
the names of two of the officers involved in the case and explained there were more people
on the list he might know, although not by name. (Doc. 21 at 214) (citing RT 6/06/05 at
127, 133–34). A.M. indicated he knew two officers from the Phoenix Police Department,
Officer Steven Butler and Sergeant Michael Smallman. (ROA 107, Jury Questionnaire,
Panelist 19 at 11.) A.M. recognized Sergeant Smallman’s name from a television show,
but did not know him, and Officer Butler’s name was “familiar,” and he believed he met
him once doing a repair on his patrol car, but did not remember what he looked like. (Id.
at 13.) A.M. worked as a mechanic at the precinct where the police officers brought their
cars for service. (RT 06/06/05 at 130.) As with juror A.L., A.M’s relationships with the
two named officers, and possibly others, is not so “extraordinary” that a finding of implied
bias is warranted. Dyer, 151 F.3d at 981; see also Tinsley, 895 F.2d at 527–28; Mitchell,
568 F.3d at 1151.
Nor is A.M.’s exposure to news of the case indicative of bias. During voir dire,
A.M. related that he had heard that “some guy,” a “DJ somewhere nearby at a club,” “had
been suspected of killing some women in a camper,” and was “maybe even suspected of
dropping off bodies” in the area. (RT 6/06/05 at 127.) “[J]uror impartiality,” the Supreme
Court has explained, “does not require ignorance.” Skilling v. United States, 561 U.S. 358,
380–81 (2010); see also Irvin, 366 U.S. at 722 (jurors are not required to be “totally
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ignorant of the facts and issues involved”; “scarcely any of those best qualified to serve as
jurors will not have formed some impression or opinion as to the merits of the case.”);
Reynolds v. United States, 98 U.S. 145, 155–156 (1879) (“[E]very case of public interest
is almost, as a matter of necessity, brought to the attention of all the intelligent people in
the vicinity, and scarcely any one can be found among those best fitted for jurors who has
not read or heard of it, and who has not some impression or some opinion in respect to its
merits.”)).
“A presumption of prejudice . . . attends only the extreme case.” Skilling, 561 U.S.
at 381. “Even where a prospective juror displays some prior knowledge of the facts and
issues involved in a case, it is his [or her] ability to ‘lay aside his [or her] impression or
opinion and render a verdict based on the evidence presented in court’ that is crucial.”
Hayes v. Ayers, 632 F.3d 500, 511 (9th Cir. 2011) (quoting Irvin, 366 U.S. at 723). It is
sufficient if the juror can lay aside his impression or opinion and render a verdict based on
the evidence.
Counsel’s decision not to move to strike A.M. based on his exposure to news of
Morris’s case was not ineffective. A.M. avowed that he could follow the law, that he would
base his decision on the facts and circumstances of the case, that he would consider and
give weight to mitigating circumstances, that he could vote for life if he felt it was the
appropriate verdict, that he could put aside everything he had heard and decide the case
only on what was presented, and that there was nothing about his involvement in fixing the
police officer’s cars or in talking to the officers that would sway him for or against the
officers when they testified. (ROA 107, Jury Questionnaire, Panelist 19 at 17–18; RT
6/06/05 at 128, 131.)
In conclusion, Morris has not established that counsel was ineffective for failing to
move to strike jurors K.N., C.J., A.L., or A.M. for cause. See Wilson, 185 F.3d at 991 (“At
voir dire, all jurors stated that they would be fair and would follow the law as instructed.
Counsel’s choice to rely on such a commitment, . . . merits deference as a tactical
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decision.” (citing Strickland, 466 U.S. at 689). Additionally, Morris has not established
that K.N., C.J., A.L., or A.M. were predisposed to convict or impose death, or were
otherwise not impartial. Accordingly, trial counsel was not ineffective in failing to strike
these jurors for cause. Because trial counsel did not perform ineffectively, PCR counsel
did not perform ineffectively in failing to raise this claim. See Atwood, 870 F.3d at 1060;
Sexton, 679 F.3d at 1157. Morris therefore cannot show “cause” under Martinez for the
claim’s default. Claim Four (D) alleging juror bias is denied.
Morris alleges counsel performed deficiently by failing to object to the Batson
violation he outlines in Claim Seventeen. (See Doc. 21 at 214.) Claim Seventeen alleges
that the prosecutor’s use of a peremptory strike to remove a blind juror was a violation of
Batson, which held that the discriminatory use of peremptory challenges based on a
prospective juror’s race violated the Equal Protection Clause of the Fourteenth
Amendment. (Doc. 21 at 184) (citing Batson, 476 U.S. at 96–98).
Morris alleged this IAC claim only in passing, relying exclusively on his arguments
in Claim Seventeen to support his allegation that a Batson violation occurred. Morris’s
failure to allege trial counsel’s deficient performance or prejudice with any specificity at
all is fatal to the claim. See Murtishaw, 255 F.3d at 939 (“The defendant bears the heavy
burden of proving that counsel’s assistance was neither reasonable nor the result of sound
trial strategy.”); Allen, 395 F.3d at 1000 (“[The petitioner] bears the highly demanding and
heavy burden [of] establishing actual prejudice.”) In any event, the claim is meritless.
Classifications based on race and gender receive heightened review or scrutiny. In
City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440–41 (1985). “A member
of a class entitled to heightened scrutiny . . . receives protection under the rule established
in Batson.” United States v. Watson, 483 F.3d 828, 831 (2007). The Supreme Court held
that the Equal Protection Clause forbids a prosecutor from challenging potential jurors
based solely on their race. Batson, 476 U.S. at 89. The Court extended its holding to
strikes based on gender in J.E.B. v. Alabama ex. rel. T.B., 511 U.S. 127, 131 (1994).
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This heightened scrutiny has not been applied to the disabled. See id (“[W]hat
differentiates sex from such non-suspect statuses as intelligence or physical disability, and
aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears
no relation to ability to perform or contribute to society.”); see also United States v. Watson,
483 F.3d 828, 831 (D.C. Cir. 2007) (“Disability . . . has been accorded no heightened
scrutiny by the Supreme Court.”) (citing Cleburne Living Ctr., Inc., 473 U.S.at 442–46)
(declining to treat intellectual disability as a suspect class because, unlike race and gender,
“mental retardation is a characteristic that the government may legitimately take into
account in a wide range of decisions.”).
Morris acknowledges that the Supreme Court has not explicitly extended its holding
to jurors excluded on the basis of disability, but he asserts that the holding in Tennessee v.
Lane, 541 U.S. 509, 522–23 (2004) – that “classifications based on disability violate” the
Fourteenth Amendment if “they lack a rational relationship to a legitimate governmental
purpose” – forms the basis for extending Batson to claims that jurors were excluded on the
basis of disability. (Doc. 21 at 284.) Morris claims the Seventh Circuit entertained such a
challenge to a peremptory challenge against a disabled juror, reviewing the challenge under
rational basis review. (Doc. 21 at 284) (citing United States v. Harris, 197 F.3d 870, 876
(7th Cir. 1999)). But this Court is aware of no other federal court that has extended Batson
to a prospective juror’s disability. See United States v. Watson 483 F.3d 828, 829 (D.C.
Cir. 2007). Moreover, such an expansion is not likely to be forthcoming. The Supreme
Court has stated that “[p]arties may . . . exercise their peremptory challenges to remove
from the venire any group or class of individuals normally subject to ‘rational basis’
review.” 511 U.S. at 143; accord United States v. Santiago–Martinez, 58 F.3d 422, 423
(9th Cir. 1995) (holding Batson challenge does not apply to prohibit peremptory strikes on
the basis of obesity, even though obese persons are recognized as a class under the
Americans with Disabilities Act); see also Dixon v. Rackley, No.
114CV01149AWIMJSHC, 2017 WL 1380547, at *89 (E.D. Cal. Apr. 17, 2017) (We have
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been unable to find any case directly holding that the physically disabled are a cognizable
class for Batson . . . purposes.”) While the Seventh Circuit’s decision in Harris may
support an argument for the extension of Batson, “the reasonableness standard does not
require counsel to predict changes in the law.” Leeds, 75 F.4th at 1018–19; see also
Sophanthavong v. Palmateer, 378 F.3d 859, 870 (9th Cir. 2004) (“Strickland does not
mandate prescience, only objectively reasonable advice under prevailing professional
norms.”). Therefore, trial counsel was not ineffective for failing to argue the novel legal
theory that Batson should be extended to claims that jurors were excluded on the basis of
disability.
Additionally, establishing Strickland prejudice requires Morris to demonstrate “a
reasonable probability he would have prevailed on a [Batson] claim.” Carrera v. Ayers,
699 F.3d 1104, 1108 (9th Cir. 2012) (assessing prisoner’s habeas claim for ineffective
assistance of counsel for an alleged failure to make a Wheeler objection, the California
equivalent of a Batson challenge). Morris has not made such a showing here.
Lastly, even applying “cumulative error principles” as Morris advocates (see
Doc. 21 at 215), Morris is not entitled to habeas relief because where, as here, “there are
no errors, there is no need to consider their cumulative effect.” McGill, 16 F.4th at 685
(9th Cir. 2021). Claims Four (A) through (D) are denied.
F. Claim Five
Morris alleges that counsel performed ineffectively in the guilt phase of trial by
failing to hire a pathologist to rebut the prosecution’s theory of the cause of death for
Codman, Davis, and Velasquez, Claim Five (A); by failing to object to Confrontation
Clause violations, Claim Five (B); by failing to move for acquittal on the ground that the
State failed to establish the corpus delicti of Codman and Davis, Claim Five (C); and by
failing to object to the standard of proof at both the guilt and aggravation phases, Claim
Five (D). (Doc. 21 at 215–224.)
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Morris asserts Claim Five (A) was raised in his postconviction petition, but the PCR
court did not rule on the claim. (Id. at 216) (citing ROA 307 at 25–33). Respondents
disagree, asserting the pathologist’s report on cause of death was offered in the PCR
petition only on whether the victims suffered, in support of the State’s allegation of the
(F)(6) aggravating factor, and whether Morris had post-mortem intercourse with the
victims. (Doc. 27 at 121–22.) Morris counters that he fairly presented the claim to the
PCR court by arguing, under the heading “Defense Lawyer’s Failure to Investigate and
Develop a Defense Regarding the Victims’ Deaths,” that “[u]pon review of Dr. [David]
Posey’s report, it is clear that the defense could have refuted critical aspects of the State’s
case during both the guilt phase, and the penalty phase, which would have affected the
verdict.” (ROA 307 at 25–26 (emphasis added).)41
41 Morris also alleged in his PCR petition that:
[W]ith “a high degree of medical certainty,” Ms. Codman’s cause of death
was “combined toxicity of morphine and cocaine,” not asphyxia.
(ROA 307 at 27) (citing Posey Orig. Rpt. at 3, 13).
[Morris’s] trial team’s failure to present a qualified expert [to explain Davis
could have died from drug intoxication and there was no physical evidence
of any asphyxia or strangulation] to the jury clearly harmed his defense
against the State’s unchallenged claims concerning Ms. Davis’s cause of
death.
(Id. at 29) (citing Posey Orig. Rpt. at 14).
In [Dr. Posey’s] report, he explains that, in determining the cause of death
[with respect to Velasquez], no consideration should have been given to the
other decedents, and any amendment to the initial opinion should only be
based on solid evidence as to the cause of death. . . [and that Velasquez] could
have either died from asphyxia or drug intoxication.
(Id. at 29–30) (citing Posey Orig. Rpt. at 4, 15).
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Even if these allegations were sufficient to fairly present the claim to the PCR court,
Morris failed to fully exhaust the claim by alerting the Arizona Supreme Court of it in his
petition for review. (See PR 7 at 3–5, Issues for Review). In Arizona, fair presentation of
a federal habeas claim in state court requires capital petitioners to present their allegations
not only to the PCR court but also to the Arizona Supreme Court. See O’Sullivan, 526
U.S. at 848; Swoopes v. Soblett, 196 F.3d 1008 (9th Cir. 1999) (per curiam) (explaining
that capital petitioners must seek review in Arizona Supreme Court to exhaust claims).
“[T]he mere submission of a relevant affidavit to a state court is not sufficient to place that
court on notice of all potential constitutional challenges stemming from that affidavit.”
Gulbrandson, 738 F.3d at 993. Additionally, in the context of IAC claims, each unrelated
allegation of counsel’s ineffectiveness is generally considered a separate claim for purposes
of exhaustion. Id., 738 F.3d at 992 (citing Moormann v. Schriro, 426 F.3d 1044, 1056 (9th
Cir. 2005)). Thus, Morris’s presentation of Dr. Posey’s report to the Arizona Supreme
Court in the context of unrelated IAC claims does not render this claim exhausted. See id.
The Court finds Claim Five (A) unexhausted and Morris concedes that Claims Five
(B)–(D) were not raised in state court. (See id. at 219, 221, 223.) Because these claims
would be precluded if raised in a successive post-conviction petition, they are procedurally
defaulted. See Ariz. R. Crim. P. 32.2(b); 32.1(b)–(h); see also Spreitz, 202 Ariz. at 2, 39
P.3d at 526. Morris argues the default of these claims is excused under Martinez by the
ineffective assistance of PCR counsel. (See Doc. 21 at 219–21, 223; Doc. 34 at 134–35,
137–38, 140–41.)
The Court’s analysis will focus on whether PCR counsel’s failure to raise the claims
was prejudicial; that is, whether there was a reasonable probability of a different outcome
during the PCR proceedings if counsel had raised the claims. To make that determination,
the court evaluates the strength of the underlying claims of ineffective assistance of trial
counsel. See Hooper, 985 F.3d at 627; Atwood, 870 F.3d at 1059–60; Runningeagle, 825
F.3d at 982.
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Claim Five (A)
Morris alleges trial counsel was ineffective at the guilt phase for failing to hire a
pathologist to rebut evidence that the cause of death for Codman, Davis, and Velasquez
was strangulation or asphyxiation. (Doc. 21 at 216–19.) Morris asserts that the defense’s
theory was that the victims died from drug overdoses, but trial counsel put on no evidence
to support that theory. (Doc. 21 at 219.) He further asserts that counsel recognized the
case turned on medical expertise, and there was no reasonable strategy that would have
supported the decision not to hire a pathologist. (Id.) Morris alleges that expert testimony
would have undermined the case that these three victims were in fact murdered. (Id. at
217.)
Upon reviewing the expert testimony offered by Morris during his PCR
proceedings, the Court concludes that Claim Five (A) is plainly meritless because even if
counsel performed deficiently by failing to present an expert opinion regarding the cause
of death of these three victims, there is not a reasonable probability that it would have
changed the guilty verdicts.
Codman and Davis
Dr. Hu testified at trial that the state of decomposition of Codman’s body prevented
him from being able to fully examine the neck area. (RT 06/28/05 at 29.) The examination
he was able to conduct revealed no trauma that could assist him in determining the cause
of death, but toxicology screening showed the presence of alcohol, morphine, and cocaine.
(RT 6/28/05 at 29, 34.)
Prior to being provided with Morris’s statement to the police, Dr. Hu’s opinion was
that Codman’s death was caused by the combined toxicity of morphine and cocaine and
the manner of death was undetermined. (Id. at 41). Dr. Hu explained that there were
suspicious circumstances surrounding the death, and thus he reported the manner of death
as undetermined. (Id. at 41–42.) Because he was nonetheless required to report what he
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thought caused Codman’s death, he reported drug overdose as the most likely cause. (Id.
at 41–42.)
After reviewing a transcript of Morris’s statement to the police, Dr. Hu determined
Codman’s cause of death was most likely asphyxia due to ligature strangulation. Morris,
215 Ariz. at 330, 160 P.3d at 209. Dr. Hu stated that Codman’s head, which was more
decomposed than the rest of her body, was not an indication of, but was consistent with,
strangulation. (RT 6/28/05 at 33–34.) On cross-examination, Dr. Hu agreed that although
there was no physical evidence of strangulation, there was “good circumstantial” evidence,
and his autopsy findings were not inconsistent with strangulation. (Id. at 60.)
Dr. Horn testified similarly regarding Davis; his examination was limited by
decompositional changes, but there was “no gross evidence of trauma on the body.” (RT
6/29/05 at 36–37.) Prior to toxicological screening, Dr. Horn stated he “pended” the cause
of Davis’s death while waiting for the outcome of further testing or investigation. (Id. at
39.) The screening revealed cocaine in Davis’s spleen, indicating that “some time before
her death, she used cocaine.” (Id. at 37–38.) Dr. Horn certified Davis’s death as “drug
intoxication with an undetermined manner . . . because [he] could not determine, because
of the decomposition, whether she had also been traumatized or not.” (Id. at 40.) Dr. Horn
explained that she might have been a “drug dump,” but that he couldn’t rule out a homicide.
(Id.)
Dr. Horn testified that he later reviewed Morris’s statement and believed that the
“investigative information . . . was consistent with someone who had been strangled.” (Id.
at 41.) “[I]n other words, nothing that [he] found was inconsistent with that conclusion.”
(Id.) Dr. Horn, however, stated that cocaine was “still a potentially fatal intoxication that
may or may not have contributed to death.” (Id. at 45.)
Based on a report from his own expert pathologist, Dr. Posey, Morris asserts that
“an expert for the defense could have opined that ‘with a high degree of medical certainty,’
Codman and Davis died from drug overdoses” and there was “no evidence of asphyxia.”
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(Doc. 21 at 217) (citing Posey Orig. Rpt. at 13). Based on his review of the forensic
literature, Dr. Posey opined in his report that Dr. Hu’s opinion regarding the decomposition
of Codman’s head was “a disingenuous, incorrect assessment,” and that her facial
decomposition was “in line with the decomposition of the remainder of her body.” (Posey
Orig. Rpt. at 14.) Dr. Posey further noted that the autopsy report showed no evidence of
trauma to the neck. (Id.)
Dr. Posey stated that Davis’s toxicology results indicated that she had lethal ranges
of cocaine metabolites in her system. (Id. at 3.) Addressing Dr. Horn’s42 testimony that
the investigative information was consistent with strangulation, Dr. Posey opined that “in
the absence of factual evidence of asphyxia due to manual or ligature strangulation, this
diagnostic conclusion cannot be made on circumstantial evidence.” (Id. at 13)
The likelihood of a different result necessary to establish prejudice must be
substantial, not just conceivable. Strickland, 466 U.S. at 693. Dr. Posey’s opinion,
however, establishes “nothing more than a theoretical possibility” that Codman and Davis
died as a result of a drug overdose and not asphyxia. Richter, 562 U.S. at 112. Although
he concluded there was no evidence of asphyxia, this conclusion, based on the autopsy
reports of Drs. Hu and Horn, is consistent with their testimony that there was no physical
evidence of strangulation. Moreover, Dr. Posey’s assessment that “with a high degree of
medical certainty [Codman and Davis] died from drug intoxication” (Posey Orig. Rpt. at
13) is inconsistent with his later equivocal statements that “undetermined is appropriate
when considering the suspicious circumstances of how the bodies were found,” and “it is
just as likely they both died from drug intoxication.” (Id. at 14) (emphasis added).
The only evidence offered by Dr. Posey that was not already before the jury was his
disagreement with Dr. Hu’s explanation that the marked decomposition of Codman’s head
42 Dr. Posey mistakenly attributed to Dr. Shvarts the autopsy report and testimony
regarding Davis. (Compare Posey Orig. Rpt. at 14 with RT 6/29/05 at 34–49.)
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was consistent with strangulation. Dr. Posey offered no other conclusions “directly
challenging” the conclusions reached by Dr. Hu. See Richter, 562 U.S. at 112 (finding
reasonable the state court’s determination that petitioner had “not established prejudice
given that he offered no evidence directly challenging other conclusions reached by the
prosecution’s experts”).
Moreover, there is “ample basis” to think any real possibility of . . . [acquittal is]
eclipsed by the remaining evidence pointing to guilt.” See id. at 113 (finding no prejudice
where “sufficient conventional circumstantial evidence” pointed to petitioner’s guilt). As
Dr. Hu testified, Morris described a ligature strangulation of Codman in his statement to
police, and Dr. Hu stated that this was consistent with his autopsy finding. (RT 6/28/05 at
71.) And Dr. Horn testified there was nothing about his examination related to Davis that
was inconsistent with strangulation as described by Morris. (RT 6/29/05 at 41.)
Additionally, there were other suspicious circumstances surrounding both victims’
deaths – Codman and Davis were found naked and decomposing in an alleyway. Morris,
215 Ariz. at 330, 160 P.3d at 209. Morris kept some of Codman’s belongings, including
her overalls, panties, and purse, and analysts found Codman’s DNA on some of the items.
Id. When Morris was arrested, he was carrying Codman’s social security card, driver’s
license, and check card in his wallet. Id. Morris also admitted that he used Davis’s hair
extensions to strangle her and “[p]olice found hair extensions in Morris’s camper. DNA
under Davis’s fingernails matched Morris’s DNA. DNA analysis on panties found in
Morris’s camper could not exclude Davis as a source of the DNA.” Morris, 215 Ariz. at
330, 160 P.3d at 209.
Dr. Posey also agreed that the circumstances of how Codman and Davis were found
was “somewhat suspicious,” and further stated that “[t]he DNA and circumstantial
evidence ties the five decedents to Mr. Morris.” (ROA 307, Posey Orig. Rpt. at 15–16.)
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Velasquez
Dr. Shvarts, who performed Velasquez’s autopsy, testified that he found bruising
around her left eye, petechial hemorrhages in her right eye, and focal hemorrhagic areas
inside her neck. (RT 6/29/05, at 9–12, 18–19.) Dr. Shvarts testified that petechial
hemorrhages are usually related to increased intravascular pressure, which is consistent
with strangulation, and the focal hemorrhaging was the result of blunt force trauma,
including external pressure. (Id. at 12, 18–19.) Dr. Shvarts testified that Velasquez, who
was not in a state of decomposition, had a curved, half-moon shaped abrasion on the front
of her neck, consistent with someone putting their fingernails on her neck, and a linear type
of abrasion, consistent with a ligature. (Id. 8–9, 17–18.) Dr. Shvarts testified that although
Velasquez’s blood tested positive for alcohol, cocaine metabolites, and benzodiazepines,
the level of substances either individually or in combination was not sufficient to cause
death. (Id. at 19–22.) Dr. Shvarts determined that Velasquez’s cause of death was
strangulation, but that a contributing cause of death was drug intoxication. (Id. at 22, 28–
29.)
Based on Dr. Posey’s report, Morris asserts that a “defense expert could have
testified that the cause of death should have been ‘undetermined’ because the injuries to
her neck ‘could have been agonal or around the time of death in a setting where the
decedent was dying from multidrug intoxication.’” (Doc. 21 at 217) (citing Posey Orig.
Rpt. at 10). “Without consideration of the fact that there were other victims,” Morris
concludes, “the medical examiner could not have determined whether she died from
asphyxia or drug intoxication.” (Id.) (Posey Orig. Rpt. at 15.)
Although Dr. Posey’s assertion that drug intoxication may have caused Velasquez’s
death does “directly challenge” the conclusion reached by Dr. Shvarts, there is sufficient
other evidence pointing to Morris’s guilt and establishing that he was not prejudiced by
counsel’s alleged failure to present the opinions of Dr. Posey. As with Codman and Davis,
Dr. Posey noted that there were suspicious circumstances in how Velasquez’s body was
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“dumped” on the street. (Posey Orig. Rpt. at 10.) Additionally, Dr. Posey’s opinion – that
Velasquez’s neck injuries could have been “agonal or around the time of death in a setting
where the decedent was dying from multidrug intoxication” – does not relieve Morris of
guilt if, as Morris stated to police, “Velasquez asked him to use his hands to choke her
while they were having sex” and, when he did so, “Velasquez passed out and never
regained consciousness.” Morris, 215 Ariz. at 331, 160 P.3d at 210. Moreover, Dr.
Posey’s assessment – that without consideration of the fact that there were other victims
Dr. Shvarts could not have determined whether she died from asphyxia or drug intoxication
– is inconsistent with the record. Dr. Shvarts did not rely on the strangling deaths of the
four other victims to establish Morris strangled Velasquez, but rather on his examination
of Velasquez’s body. This conclusion is supported by, but was not informed by, both
Morris’s statement to the police and the strangling deaths of the other four victims.
There was not a reasonable probability of a different outcome in the PCR
proceedings if PCR counsel had raised the Dr. Posey claim. Because PCR counsel did not
perform ineffectively, Morris cannot establish cause for the claim’s default. See Atwood,
870 F.3d at 1060; Sexton, 679 F.3d at 1157. Claim Five (A) is therefore denied.
Claim Five (B)
At trial, all the medical examiners testified to drugs and alcohol found in the victims’
systems despite not having conducted the toxicology testing themselves. (RT 6/15/05 at
93–95; RT 6/27/05 at 114–16; RT 6/28/05 at 34–37; RT 6/29/05 at 19–22, 37–38; see PCR
EH Exs. 7–11.) Morris alleges that trial counsel should have objected because this was
impermissible hearsay and violated the Confrontation Clause. Failure to do, he contends,
prevented trial counsel from being able to cross-examine the toxicologist on the methods
he used as well as his credentials and credibility. (Doc. 21 at 220–21.)
Morris contends the testimony was inadmissible under Crawford v. Washington,
541 U.S. 36 (2004), and its progeny, including Melendez-Diaz v. Massachusetts, 557 U.S.
305 (2009), and Bullcoming v. New Mexico, 564 U.S. 647 (2011). (See Doc. 21 at 220,
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277; Doc. 34 at 138.) In Crawford, a decision handed down just months before Morris’s
trial, the Supreme Court held that the Sixth Amendment’s Confrontation Clause “bars the
admission at trial of ‘testimonial statements’ of an absent witness unless she is ‘unavailable
to testify, and the defendant ha[s] had a prior opportunity’ to cross-examine her.” Smith v.
Arizona (Jason Smith), 602 U.S. 779, 783 (2024) (quoting Crawford, 541 U.S. at 53–54).
This prohibition “applies only to testimonial hearsay.” Davis v. Washington, 547 U.S. 813,
823 (2006).
At the time of Morris’s trial, and up until the Supreme Court’s recent decision in
Jason Smith, the Arizona Supreme Court had held that the Confrontation Clause did not
apply “when an expert recites another analyst’s statements as the basis for his opinion”
because the prosecution was not using the out-of-court statements for the truth of the matter
asserted. 602 U.S. at 784 (citing Crawford, 541 U.S. at 60, n.9); see, e.g., State v. Dixon,
226 Ariz. 545, 553, 250 P.3d 1174, 1182 (2011) (“Our cases teach that a testifying medical
examiner may, consistent with the Confrontation Clause, rely on information in autopsy
reports prepared by others as long as he forms his own conclusions.”). The Supreme Court
did not reject the Arizona court’s rationale until it decided Jason Smith in 2024, almost 20
years after Morris’s trial. Id.
At the time of Morris’s trial, reasonable counsel performing basic research could
have concluded that:
Facts or data underlying [a] testifying expert’s opinion are admissible for the
limited purpose of showing the basis of that opinion, not to prove the truth
of the matter asserted. . . . Testimony not admitted to prove the truth of the
matter asserted by an out-of-court declarant is not hearsay and does not
violate the confrontation clause.
State v. Rogovich, 188 Ariz. 38, 42, 932 P.2d 794, 798 (1997) (citing State v. Lundstrom,
161 Ariz. 141, 148, 776 P.2d 1067, 1074 (1989))). Subsequently, in State v. Smith (Joe
Smith), 215 Ariz. 221, 159 P.3d 531 (2007), the Arizona Supreme Court confirmed that the
Crawford decision did not alter this analysis. In Joe Smith, the Arizona Supreme Court
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held that testimony by medical experts that does not act as a “conduit for another non-
testifying expert’s opinion,” id. at 229, 159 P.3d at 539 (quoting State v. Lundstrom, 161
Ariz. 141, 148, 776 P.2d 1067, 1074 (1989)), but instead discusses the reports and opinions
of another expert and reasonably relies on those reports and opinions in reaching their own
opinion is not hearsay “because it is offered not to prove the truth of the prior reports or
opinions, but rather is offered only to show the basis of the testifying expert’s opinion.”
Id. at 228–30, 159 P.3d at 538–40 (citing Rogovich, 188 Ariz. at 41–42, 932 P.2d at 797–
98; State v. Villafuerte, 142 Ariz. 323, 327, 690 P.2d 42, 46 (1984); State v. Noleen, 142
Ariz. 101, 104, 688 P.2d 993, 996 (1984)). Thus, reasonable counsel at the time of Morris’s
trial could have concluded that the medical examiners’ opinions were not hearsay and did
not violate Morris’s confrontation right. See id. at 229, 159 P.3d at 539.
Additionally, Bullcoming and Melendez-Diaz do not support Morris’s claim. First,
they were not decided before Morris’s trial and thus Morris’s counsel could not have been
aware of them. Morris’s counsel cannot be ineffective for failing to argue a theory that had
not been developed. In the evaluation of an attorney’s performance, “every effort [must]
be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at
the time.” Strickland, 466 U.S. at 689.
Second, although the Supreme Court “made clear that the Confrontation Clause
applies to forensic reports” in Bullcoming and Melendez-Diaz, Jason Smith, 602 U.S. at
785, those cases are distinguishable from the circumstances in Morris. “[F]orensic reports
were introduced into evidence, and there is no question that this was done for the purpose
of proving the truth of what they asserted: in Bullcoming that the defendant’s blood alcohol
level exceeded the legal limit and in Melendez–Diaz that the substance in question
contained cocaine.” Williams v. Illinois, 567 U.S. 50, 79 (2012) abrogated by Smith, 602
U.S. 779. “[T]he Court held that the particular forensic reports at issue qualified as
testimonial statements, but the Court did not hold that all forensic reports fall into the same
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category. Introduction of the reports in those cases ran afoul of the Confrontation Clause
because they were the equivalent of affidavits made for the purpose of proving the guilt of
a particular criminal defendant at trial.” Id. at 84.
After Bullcoming and Melendez-Diaz, the Court remained “fractured” on whether
the Confrontation Clause was implicated by testimony from a lab analyst’s statements that
“were not introduced for their truth, but to explain the basis for the testifying expert’s
opinion” until that question was presented in Jason Smith. Jason Smith, 602 U.S. at 779
(citing Williams, 567 U.S. at 79; see also State v. Medina, 232 Ariz. 391, 406, 306 P.3d 48,
63 (2013) (“[T]here is no binding rule for determining when reports are testimonial.”);
United States v. Alcan Aluminum Corp., 315 F.3d 179, 189 (2d Cir. 2003) (holding that
when no “single standard . . . legitimately constitutes the narrowest ground for a decision
on that issue, there is then no law of the land”).
Thus, reasonable counsel in 2005 could have concluded, as the Arizona Supreme
Court had at the time, that forensic testing results relied on by medical examiners to form
their opinion, but not for the truth of the matter asserted, were non-hearsay and not
precluded by the Confrontation Clause. Trial counsel was not ineffective for failing to
predict Jason Smith. See Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994) (finding counsel
was not ineffective because a “lawyer cannot be required to anticipate our decision” in a
later case); Bullock v. Carver, 297 F.3d 1036, 1052 (10th Cir. 2002) (rejecting ineffective
assistance claim based upon counsel’s failure to predict future changes in the law, as
“clairvoyance is not a required attribute of effective representation.”).
Further, the trial court’s denial of counsel’s objection to Dr. Keen’s testimony about
Noah’s autopsy, conducted by a medical examiner who no longer worked in the medical
examiner’s office, demonstrates that an objection to the medical examiners’ testimony
about the toxicology results would also have been futile. See Matylinsky v. Budge, 577
F.3d 1083, 1094 (9th Cir. 2009) (explaining that failure to object to testimony on hearsay
grounds is not ineffective where the objection would have been properly overruled). In
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rejecting Morris’s claim alleging Dr. Keen’s testimony violated the Confrontation Clause,
the PCR court reasoned:
The [Arizona Supreme] Court has repeatedly held that a testifying medical
examiner may, consistent with the Confrontation Clause, rely on information
in autopsy reports prepared by others as long as he forms his own
conclusions. State v. Joseph, 230 Ariz. 296, ¶8, 283 P.3d 27 (2012) (Dr.
Keen); State v. Dixon, 226 Ariz. 545, 553, ¶¶36-37, 250 P.3d 1174, 1182
(2011) (Dr. Keen); State v. Snelling, 225 Ariz. 182, 187 ¶ 21, 236 P.3d 409,
414 (2010); State v. Smith, 215 Ariz. 221, 229 ¶26, 159 P.3d 531, 539 (2007)
(Dr. Keen). See also Williams v. Illinois, [567] U.S. [50], 132 S. Ct. 2221,
2228 (2012) (“Out-of-court statements that are related by the expert solely
for the purpose of explaining the assumptions on which that opinion rests are
not offered for their truth and thus fall outside the scope of the Confrontation
Clause.”) (plurality opinion); State v. Gomez, 226 Ariz. 165, 169-70 ¶22, 244
P.3d 1163, 1167-68 (2010) (“[A] medical examiner may offer an expert
opinion based on review of reports and test results prepared by others, as long
as the testifying expert does not simply act as a conduit for another non-
testifying expert’s opinion.” (internal quotation marks omitted)); cf. Ariz. R.
Evid. 703 (allowing testifying expert to rely on data not admitted into
evidence).
(ROA 354 at 10–11.) For the same reasons, it would have been futile for counsel to object
to the medical examiners’ testimony regarding the toxicology reports.
Finally, although Morris argues that as a result of counsel’s deficient performance
he could not challenge the credibility of the toxicologist who prepared the toxicology
results, he fails to establish how this would have impacted the outcome of his trial.
(Doc. 21 at 280–81.)
The allegation that trial counsel performed ineffectively in failing to object to the
medical examiners’ testimony regarding the toxicology results lacks merit. Because
Morris’s claim of ineffectiveness is meritless, there was not a reasonable probability of a
different outcome in the PCR proceedings if PCR counsel had raised the claim. Because
PCR counsel did not perform ineffectively, Morris cannot establish cause for the claim’s
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default. See Atwood, 870 F.3d at 1060; Sexton, 679 F.3d at 1157. Claim Five (B) is
therefore denied.
Claim Five (C)
In his Reply, Morris withdraws Claim Five (C), which alleges trial counsel was
ineffective for failing to move to acquit on the grounds that the State failed to present
sufficient evidence to establish the corpus delicti of Codman and Davis. (See Doc. 21 at
221–23; Doc. 34 at 140.)
Claim Five (D)
Morris alleges that trial counsel was ineffective for failing to object to the trial
court’s reasonable-doubt standard at both the guilt and aggravation phases of his trial.
(Doc. 21 at 223–24, 296–98.)
During the guilt phase of trial, the court provided the following instruction:
The State has the burden of proving the defendant guilty beyond a reasonable
doubt. The State must prove each element of the charge beyond a reasonable
doubt. In civil cases, it is only necessary to prove that a fact is more likely
true than not or that its truth is highly probable. In criminal cases such as
this, the State’s proof must be more powerful than that. It must be beyond a
reasonable doubt.
Proof beyond a reasonable doubt is proof that leaves you firmly convinced
of the defendant’s guilt. There are very few things in this world that we know
with absolute certainty, and in criminal cases the law does not require proof
that overcomes every doubt. If, based on your consideration of the evidence,
you are firmly convinced that the defendant is guilty of the crime charged,
you must find him guilty. If, on the other hand, you think there is a real
possibility that he is not guilty, you must give him the benefit of the doubt
and find him not guilty.
(RT 7/05/05 at 4.) The court provided a nearly identical instruction during the aggravation
phase. (RT 7/12/05 at 81.)
The phrase “firmly convinced,” Morris asserts, reduced the State’s standard of proof
to something less than reasonable doubt, akin to “clear and convincing.” (Doc. 21 at 297)
(citing State v. Perez, 976 P.2d 427, 442 (Haw. Ct. App. 1998), aff’d in part, rev’d in part
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on other grounds, 976 P.2d 379 (Haw. 1999)). “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). As 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 State v. Portillo, 182 Ariz. 592, 596, 898 P.2d 970, 974 (1995), is based on the pattern
instruction adopted by the Federal Judicial Center. See State v. Van Adams, 194 Ariz. 408,
417–18, 984 P.2d 16, 25–26 (1999). Morris cites no controlling authority holding that it
impermissibly lowers the burden of proof, and Justice Ginsburg praised the instruction as
“clear, straightforward, and accurate.” Victor, 511 U.S. at 26 (Ginsburg, J., concurring).
The Ninth Circuit has upheld identical or substantially similar instructions. See, e.g.,
United States v. Velasquez, 980 F.2d 1275 (9th Cir. 1992) (finding no error in trial court’s
instruction defining proof beyond a reasonable doubt as proof “that leaves you firmly
convinced” of the defendant’s guilt); United States v. Bustillo, 789 F.2d 1364, 1368 (9th
Cir. 1986) (no error where trial court instructed jurors that they must find defendant not
guilty if there is a “real possibility” that he was innocent). Because the instruction is not
unconstitutional, trial counsel was not ineffective for failing to challenge it.
Because Morris’s claim of ineffectiveness is meritless, there was not a reasonable
probability of a different outcome in the PCR proceedings if PCR counsel had raised the
claim. Because PCR counsel did not perform ineffectively, Morris cannot establish cause
for the claim’s default. See Atwood, 870 F.3d at 1060; Sexton, 679 F.3d at 1157. Claim
Five (D) is therefore denied.
/ / /
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Claim Five: Cumulative Error
Morris asserts that, even if this Court finds that no single error amounts to prejudice,
it nonetheless should apply cumulative error principles to grant relief. (Doc. 21 at 216,
224) (citing Boyde v. Brown, 404 F.3d 1159, 1176 (9th Cir. 2005). This claim, which
Morris did not raise in state court, is procedurally defaulted and barred from federal review.
See Carpenter, 529 U.S. at 453; Martinez (Ernesto), 926 F.3d at 1225. It is also meritless.
As previously discussed, the Supreme Court has not specifically recognized the
doctrine of cumulative error as an independent basis for habeas relief. See Lorraine, 291
F.3d at 447; cf. Morris v. Sec’ y Dep’ t of Corr., 677 F.3d at 1132 n.3. The Ninth Circuit
has held that in some cases, although no single trial error is sufficiently prejudicial to
warrant reversal, the cumulative effect of several errors may nonetheless prejudice a
defendant to such a degree that his conviction must be overturned. See Mancuso, 292 F.3d
at 957. In assessing whether the aggregate effect of counsel’s performance at the guilt
phase prejudiced a defendant, the Court does not consider the prejudicial effect of
nonexistent errors. Waidla v. Davis, No. 18-99001, 2024 WL 5196398, at *16 (9th Cir.
Dec. 23, 2024) (citing United States v. Jeremiah, 493 F.3d 1042, 1047 (9th Cir. 2007)).
Because Supreme Court precedent does not recognize the doctrine of cumulative
error, and because this Court has determined that Morris’s claims of ineffectiveness are
meritless, the claim of cumulative prejudice is meritless. Claim 5, including all subclaims,
is denied as procedurally defaulted.
G. Claim Six (B)
Morris alleges that counsel performed ineffectively in the aggravation phase of his
trial by failing to challenge the (F)(2) aggravating factor as a violation of Morris’s rights
under the Double Jeopardy Clause, Claim Six (B)(1), and by failing to challenge the jury
instructions on the (F)(6) aggravating factor, Claim Six (B)(2). (Doc. 21 at 225, 231–33.)
Morris did not exhaust Claim Six (B) and Respondents assert it is procedurally
defaulted. (Doc. 27 at 135–36.) Morris concedes the claim is unexhausted and alleges any
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default is excused under Martinez, by the ineffective assistance of PCR counsel. (Doc. 21
at 231.)
Claim Six (B)(1)
The State alleged as an aggravating factor that Morris was previously convicted of
a serious offense, relying for each count on the other four. (ROA 19; RT 7/12/05 at 19–
21); see A.R.S. § 13-703 (F)(2) (“The defendant has been or was previously convicted of
a serious offense, whether preparatory or completed,” including “[c]onvictions 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 . . . .”). Morris asserts that because
“the same facts are required to prove the elements of murder and the (F)(2) factor” he “has
been exposed to multiple proceedings and punishments on the same offense” in violation
of the Double Jeopardy Clause. (Doc. 21 at 326.) The Court disagrees.
The Double Jeopardy Clause of the Fifth Amendment protects against a second
prosecution for the same offense after acquittal or conviction, and against multiple
punishments for the same offense. Schiro v. Farley, 510 U.S. 222, 229 (1994). None of
the protections afforded by the Double Jeopardy Clause are implicated by application of
the (F)(2) aggravating factor to each of Morris’s murder convictions. See id. (“Where . . .
there is ‘no threat of either multiple punishment or successive prosecutions, the Double
Jeopardy Clause is not offended.’”) (quoting United States v. Wilson, 420 U.S. 332, 344
(1969)).
Morris was not being punished twice for the same crime. His sentences were based
on the murders of five different victims; there were five convictions and five sentences.
Aggravating circumstances, such as those set forth in (F)(2), only determine whether the
crime of murder will carry the death penalty. As the Supreme Court has explained,
“[a]ggravating circumstances are not separate penalties or offenses, but are ‘standards to
guide the making of [the] choice’ between alternative verdicts of death and life
imprisonment.” Poland v. Arizona, 476 U.S. 147, 156 (1986) (quoting Bullington v.
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Missouri, 451 U.S. 430, 438 (1981)); see Lowenfield, 484 U.S. at 244–46; Green v. Zant,
738 F.2d 1529, 1541 (11th Cir. 1984) (statutory aggravating circumstances are not offenses
for double-jeopardy purposes, but rather are procedural standards designed to control a
jury’s discretion in capital cases in order to ensure against capricious and arbitrary
enforcement of the death penalty).
“The (F)(2) aggravating factor is a recidivist provision,” Pandeli, 215 Ariz. at 522–
23, 161 P.3d at 565–66, and “a charge under a recidivism statute does not state a separate
offense, but goes to punishment only.” Parke v. Raley, 506 U.S. 20, 27 (1992) (citations
omitted). The Supreme Court has “repeatedly upheld recidivism statutes ‘against
contentions that they violate constitutional strictures dealing with double jeopardy. . . .’”
Id. (quoting Spencer v. Texas, 385 U.S. 554, 560 (1967)) (additional citations omitted).
Because the underlying objection is meritless, trial counsel was not ineffective for
failing to raise it. See Juan H., 408 F.3d at 1273; Green, 160 F.3d at 1037; James, 24 F.3d
at 27. Because the underlying claim of trial counsel ineffectiveness is without merit, cause
does not exist for the claim’s default. Runningeagle, 825 F.3d at 982; Atwood, 870 F.3d at
1060. The claim remains barred from federal review.
Claim Six (B)(2)
Morris alleges that after the trial court failed to rule on his motion to strike the (F)(6)
aggravating factor on the basis that it was unconstitutionally vague (see Doc. 21 at 232)
(citing ROA 54), trial counsel was ineffective for subsequently failing to object to the jury
instructions that were similarly vague and failed to narrow the aggravating factor. (Doc. 21
at 232–33.) Morris asserts that the instructions failed to provide jurors with a “meaningful
basis for distinguishing the few cases in which [the death penalty] is imposed from the
many cases in which it is not.” (Doc. 21 at 232) (quoting Godfrey v. Georgia, 446 U.S.
420, 427 (1980), holding modified by Brown v. Sanders, 546 U.S. 212 (2006)). Morris
alleges that the trial court instructed the jury that for a murder to be “especially heinous,
cruel, or depraved,” it must be “above the norm of other first degree murders,” (see RT
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07/12/05 at 84–85), but “without any point of reference or comparison as to what first-
degree murders were ‘the norm,’ the jury could not differentiate the case before it.”
(Doc. 21 at 233.) Morris further alleges the ineffective assistance of PCR counsel excuses
the procedural default of this claim under Martinez. (Id. at 231.)
The trial counsel IAC claim is meritless. First, Morris is incorrect that the trial court
failed to rule on his challenge to the (F)(6) factor as unconstitutionally vague. The court
first ordered the State to respond and then denied the motion. (ROA 56, 62.)
Appellate counsel raised the issue on direct appeal, acknowledging that the Arizona
Supreme Court had rejected the same argument in State v. Cromwell, 211 Ariz. 181, 119
P.3d 448 (2005), and State v. Anderson, 210 Ariz. 327, 352–53, 111 P.3d 369, 394–95
(2005). (DA 29 at 60–61.) Relying on the same cases, the court denied the claim. Morris,
215 Ariz. at 342, 160 P.3d at 221. Trial counsel was therefore not ineffective for failing to
raise the same objection to the jury instructions – it would have been futile to do so.
Second, the jury instructions were not unconstitutionally vague. A statutory
aggravating factor is unconstitutionally vague if it fails to furnish principled guidance for
the choice between death and a lesser penalty. Richmond v. Lewis, 506 U.S. 40, 46 (1992)
(citing Maynard v. Cartwright, 486 U.S. 356, 361-364 (1988); Godfrey, 446 U.S. at 427–
433). Both the Ninth Circuit and the United States Supreme Court have upheld Arizona’s
death penalty statute against allegations that particular aggravating factors, including the
(F)(6) factor, do not adequately narrow the sentencer’s discretion. See Lewis v. Jeffers,
497 U.S. 764, 774–77 (1990); Walton v. Arizona, 497 U.S. 639, 652–56 (1990) overruled
on other grounds by Ring v. Arizona (Ring II), 536 U.S. 584 (2002). In Walton, the
Supreme Court held that the “especially heinous, cruel or depraved” aggravating
circumstance was facially vague but the vagueness was remedied by the Arizona Supreme
Court’s clarification of the factor’s meaning. 497 U.S. at 654; see also Smith v. Ryan, 823
F.3d 1270, 1294–95 (9th Cir. 2016).
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Walton . . . squarely forecloses any argument that Arizona’s subsection (F)(6)
aggravating circumstance, as construed by the Arizona Supreme Court, fails
to “channel the sentencer’s discretion by ‘clear and objective standards’ that
provide ‘specific and detailed guidance,’ and that ‘make rationally
reviewable the process for imposing a sentence of death.’”
Jeffers, 497 U.S. at 777–78 (quoting Godfrey, 446 U.S. at 428). Morris cites no caselaw,
and this court is aware of none, finding the Arizona Supreme Court’s construction
constitutionally inadequate when applied by a jury instead of a judge.
Morris criticizes Respondents for resting their opposition on the argument that there
is no clearly established federal law establishing that the phrase “above the norm of other
first degree murders” must be separately defined. Morris asserts there is no requirement
that he point to clearly established federal law – that the only applicable standard for review
is that found in Strickland. Even so, Morris has failed to allege trial counsel performed
deficiently under Strickland. Reasonably competent counsel conducting research at the
time of Morris’s trial would have discovered, in addition to the absence of clearly
established federal law finding the (F)(6) factor unconstitutionally vague when clarified by
the application of a narrowing construction, that the Arizona Supreme Court had addressed
and rejected the argument that “the rule announced in Walton can no longer justify use of
the facially vague (F)(6) aggravator in Arizona because juries, not judges, now find
aggravating circumstances.” Anderson, 210 Ariz. at 352, 111 P.3d at 394, supplemented,
211 Ariz. 59, 116 P.3d 1219.
Finally, Morris claims that “if counsel had sought to clarify the instructions and the
jury had been properly instructed, there is a reasonable probability that at least one juror
would not have found the aggravating factor proven.” (Doc. 21 at 233.) But Morris fails
to explain what clarification or proper instruction should have been given and why it might
have changed the outcome. (See id.) The jury was instructed in detail as to what would
support a finding that the murders were “especially heinous, cruel or depraved” and gave
substance to the terms “cruel” and “heinous or depraved” in accordance with Arizona case
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law narrowing and defining those terms.43 See Cromwell, 211 Ariz. at 189, 119 P.3d at
456; Anderson, 210 Ariz. at 352, 111 P.3d at 394.
43 The jury was instructed:
All First Degree Murders are to some extent heinous, cruel, or depraved.
However, this aggravating circumstance cannot be found to exist unless the
murder is especially heinous, cruel, or depraved; that is, where the
circumstances of the murder raise it above the norm of other first degree
murders.
The terms cruel, heinous, or depraved are to be considered separately, but
proof of any of these factors is sufficient to establish this aggravating
circumstance.
Cruelty may be found if you find that the victim consciously experienced
physical pain and/or mental anguish prior to death and the defendant knew
or should have known that suffering would occur. The victim must be
conscious for at least some portion of the time when the pain and/or anguish
was inflicted.
. . .
A murder is especially heinous if it is hatefully or shockingly evil; grossly
bad. A murder is depraved if marked by debasement, corruption, perversion,
or deterioration. The terms heinous and depraved focus upon a defendant’s
state of mind at the time of the offense, as reflected by his words and acts.
In order to find heinousness or depravity, you must find that the defendant
has such a mental State [sic] as exhibited by engaging in at least one of the
following actions:
One. Relishing the murder;
Two. Infliction of gratuitous violence on the victim beyond that necessary
to kill;
Three. Needless mutilation of the victim’s body.
In this context, relishing refers to words or actions that demonstrate
debasement or perversion. In order to support a finding of relishing the
defendant must say or do something other than the murder itself which
indicates he savored or enjoyed the killing.
In this context, needless mutilation means that the defendant, apart from the
killing, committed distinct acts with the intent to mutilate the victim’s body.
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Because the underlying objection is meritless, trial counsel was not ineffective for
failing to raise it. See Juan H., 408 F.3d at 1273; Green, 160 F.3d at 1037; James, 24 F.3d
at 27. Because the underlying claim of trial counsel ineffectiveness is without merit, cause
does not exist for the claim’s default. Runningeagle, 825 F.3d at 982; Atwood, 870 F.3d at
1060. The claim therefore remains barred from federal review.
H. Claim Seven
Morris alleges the state court violated his constitutional rights by erroneously
denying his motions to preclude the introduction of his statements on the ground that the
State could not establish the corpus delicti of either Codman or Davis’s murder (Claim
Seven (A)), and for judgment of acquittal despite insufficient evidence that Morris
murdered these two victims (Claim Seven (B)). (Doc. 21 at 234–40.) Respondents contest
Morris’s allegation that these two claims were exhausted in state court; alternatively, they
assert the claims are meritless. (Id. at 137–40.)
In order to return a finding that the murder was especially heinous or
depraved you must be unanimous as to at least one of the three factors above.
A finding of relishing, infliction of gratuitous violence, or mutilation alone
will support findings of heinousness and/or depravity.
To assist you in determining whether a crime is heinous or depraved, you
may also consider whether:
One. The murder was senseless; or.
Two. Helplessness of the victim.
All murders are senseless because of their brutality and finality. Yet, not all
are senseless as the term is used to distinguish those first degree murders that
warrant a death sentence and those that do not. Rather, a senseless murder is
one that is unnecessary to achieve the defendant’s criminal purpose.
Helplessness is proven when the victim is unable to resist.
A finding of senselessness or helplessness alone or together will not be
sufficient to prove heinousness or depravity unless the State also proves at
least one of the three circumstances listed above.
(RT 7/12/05 at 84–87.)
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Claim Seven (A)
Morris alleges the admission of his statement relating to Codman and Davis (Counts
1 and 2, respectively), rendered his trial fundamentally unfair in violation of his due process
rights under the Fourteenth Amendment. (Doc. 21 at 234–37) (citing Estelle v. McGuire,
502 U.S. 62, 67–68 (1991)).
Prior to trial, Morris moved to preclude his confession that he strangled Codman
and Davis, asserting that, under Arizona law,44 the State had failed to establish the corpus
delicti of either crime. (ROA 65.) The trial court, considering the totality of the
circumstances, found independent proof in their deaths that “raise reasonable inferences
that their deaths were caused by criminal conduct”:
[A]lthough the cause of death of the victims of Counts 1 and 2 are
undetermined, the circumstances surrounding the discovery of the bodies
establish reasonable inferences that the deaths were caused by criminal
conduct. Barbara Codman’s nude decomposing body was found in an alley
in a residential area. Drag marks were found near her body. Her driver’s
license, social security card and Bank of America check cashing card were
found in the possession of Defendant.
The body of Shanteria Davis, like that of Barbara Codman’s was found nude
and decomposing in the same alley in the early morning hours. There were
drag and scuff marks next to her body leading to the back gate of the yard of
the Defendant’s trailer. Fingernail scrapings from Shanteria Davis’ left hand
matched Defendant’s DNA profile. Pink panties found in Defendant’s trailer
closet matched the DNA profile of Shanteria Davis.
(ROA 70 at 1–2.)
Morris appealed this decision, arguing the trial court abused its discretion by
denying his motion to dismiss the counts involving Codman and Davis and by admitting
Morris’s statements to the police concerning those deaths because the State was unable to
44 Specifically, Morris cited Atwood, 171 Ariz. 576, 832 P.2d 593; State v.
Washington, 204 Ariz. 166, 61 P.3d 460 (App. 2003); State v. Hall, 204 Ariz. 442, 65 P.3d
90 (App. 2003); State v. Nieves, 207 Ariz. 438, 87 P.3d 851 (App. 2004); and State v.
Janise, 116 Ariz. 557, 570 P.2d 499 (1997), in support of this claim. (ROA 65 at 3–4.)
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establish corpus delicti without his statements. (DA 29 at 16, 18–32.) The Arizona
Supreme Court affirmed, finding “sufficient evidence independent of Morris’s
incriminating statements establishes corpus delicti for the deaths of both Codman and
Davis.” Morris, 215 Ariz. at 333, 160 P.3d at 212. Morris alleges the Arizona Supreme
Court’s finding was both an unreasonable application of the law and an unreasonable
determination of the facts. (Doc. 21 at 237.) Respondents assert Claim Seven (A) is
unexhausted and procedurally defaulted. (Doc. 27 at 137.)
To fairly present a federal claim, a state prisoner must present to the state courts
both the operative facts and the federal legal theories that animate the claim. See Gray v.
Netherland, 518 U.S. 152, 162–63 (1996); Castillo v. McFadden, 399 F.3d 993, 999 (9th
Cir. 2005). Morris asserts that the substance of his federal claim was preserved because he
argued on direct appeal “that the arbitrary denial of his motion to exclude his statement
with respect to Codman and Davis rendered his convictions for their murders
fundamentally unfair, and he cited cases recognizing the due process implications of the
corpus delicti rule.” (Doc. 21 at 152) (citing DA 29 at 18–32); see Peterson, 319 F.3d at
1158 (“[F]or purposes of exhaustion, a citation to a state case analyzing a federal
constitutional issue serves the same purpose as a citation to a federal case analyzing such
an issue.”). Morris’s characterization of the claim he raised in state court as a federal due
process claim is misleading. Morris’s Opening Brief focused exclusively on state law; he
failed to present his corpus delicti claim as a federal claim. See Arrendondo v. Neven, 763
F.3d 1122, 1138 (9th Cir. 2014) (“Because Arrendondo’s brief before the Nevada Supreme
Court focused exclusively on state law, he failed to present his compulsory-process claim
as a federal claim.”).
Corpus delicti is a common law doctrine. State v. Allen, 253 Ariz. 306, 334, 513
P.3d 282, 310 (2022). “[T]o establish corpus delicti there must appear some proof of a
certain result, and that someone is criminally responsible therefor.” State v. Weis, 92 Ariz.
254, 260, 375 P.2d 735, 739 (1962). As Morris explained in his Opening Brief, the purpose
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of the rule is “to prevent a conviction based on an individual’s uncorroborated confession,
the concern being that such a confession could be false and the conviction thereby lack
fundamental fairness.” (DA 29 at 19) (quoting State v. Flores, 202 Ariz. 221, 222, 42 P.3d
1186, 1187 (App. 2002)).
Focusing on two state court cases, State v. Nieves, 207 Ariz. 438, 87 P.3d 851 (App.
2004), and State v. Morgan, 204 Ariz. 166, 61 P.3d 460 (App. 2002), Morris argued in his
Opening Brief that the court should look to Nieves, and not Morgan, in finding that the trial
court had abused its discretion in not dismissing the Codman and Davis counts. (DA 29 at
30.) He further argued that the factors the trial court relied on in denying his motion did
not support a reasonable inference that the crimes charged were committed in light of the
evidence presented. (Id. at 31.) Finally, Morris asserted that the trial court’s conclusion
otherwise “rendered the corpus delicti rule without any practical effect.” (Id. at 32.) Morris
cited no law, state or federal, in support of the latter assertion. (See id.) None of these
arguments invoked a federal claim.
Contrary to Morris’s argument in his federal petition, neither did the additional
citations to three cases that he asserts “recognize the due process implications of the corpus
delicti rule.” (see Doc. 34 at 152.) A review of these cases reveal they also did not
sufficiently alert the state court that he was raising a federal claim in his direct appeal. See
Peterson, 319 F.3d at 1158.
Morris cited two cases, Smith v. United States, 348 U.S. 147, 153 (1954), and State
v. Jones ex rel. Cnty. of Maricopa, 198 Ariz. 18, 21, 6 P.3d 323, 326 (App. 2000), in support
of his legal assertion that the “corpus delicti rule requires that, before a defendant’s
statements are admissible as evidence of a crime, the State must show both proof of a crime
and that someone is responsible for that crime.” (DA 29 at 19.) Although Jones and Smith
both “touch[ed] upon the due process implications of the rule,” Jones, 198 Ariz. at 21, 6
P.3d at 326, this was confined to preliminary discourse over the provenance of the rule,
and neither court held that a conviction based on an uncorroborated confession is a
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violation of due process or applied a constitutional analysis to the claims before them. See
Jones, 198 Ariz. at 21, 6 P.3d at 326 (“Although courts have seldom articulated a precise
rationale, they usually cite the regrettable historical experience with false confessions and
the concern that convictions lacking in fundamental fairness could too-readily result from
these statements.”). In fact, concerns over fundamental fairness were not, as the Jones
court noted, the only factor that has been offered to support the common-law rule. See id.,
198 Ariz. at 21 n.3, 6 P.3d at 326 n.3. “Citation of irrelevant federal cases does not provide
a state court with a fair opportunity to apply controlling legal principles to the facts bearing
upon his constitutional claim.” Castillo, 399 F.3d at 1000 (citation and internal quotation
marks omitted).
Morris also quoted State v. Flores, 202 Ariz. 221, 222, 42 P.3d 1186, 1187 (App.
2002), in his Opening Brief, to support his assertion that the “purpose of the rule is ‘to
prevent a conviction based solely on an individual’s uncorroborated confession, the
concern being that such a confession could be false and the conviction thereby lack
fundamental fairness.’” (DA 29 at 19.) Morris’s citation to Flores, however, did not alert
the state court that Morris was raising a federal due process claim; aside from the brief
mention of “fundamental fairness,” Flores was argued and decided purely as a matter of
state law. See Casey, 386 F.3d at 912 n. 13 (“For a federal issue to be presented by the
citation of a state decision dealing with both state and federal issues relevant to the claim,
the citation must be accompanied by some clear indication that the case involves federal
issues. Where . . .the citation to the state case has no signal in the text of the brief that the
petitioner raises federal claims or relies on state law cases that resolve federal issues, the
federal claim is not fairly presented.”). Moreover, “[g]eneral appeals to broad
constitutional principles, such as due process, equal protection, and the right to a fair trial,
do not establish fair presentation of a federal constitutional claim.” Castillo, 399 F.3d at
1002 (“Exhaustion requires more than drive-by citation, detached from any articulation of
an underlying federal legal theory.”); Fields v. Waddington, 401 F.3d 1018, 1021 (9th Cir.
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2005); Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000) (finding it insufficient for
prisoner to make “a general appeal to a constitutional guarantee,” such as a naked reference
to “due process,” or to a “constitutional error” or a “fair trial”).
Because the claim is unexhausted and would be precluded if raised in a successive
post-conviction petition, it is procedurally defaulted. See Ariz. R. Crim. P. 32.2(b);
32.1(b)–(h). Morris argues the default of this claim is excused by appellate counsel’s
ineffectiveness coupled with PCR counsel’s subsequent failure to raise an IAAC claim
under Martinez. (Doc. 34 at 152–53; see also id. at 24–25.)
Ineffective assistance of appellate counsel may be used as cause to excuse a
procedural default only where the particular ineffective assistance allegation was first
exhausted in state court as an independent constitutional claim. See Carpenter, 529 U.S.
at 453 (“an ineffective-assistance-of-counsel claim asserted as cause for the procedural
default of another claim can itself be procedurally defaulted”); Carrier, 477 U.S. at 489–
90. Because Morris did not first exhaust this IAAC claim in his PCR petition, he may not
rely on an allegation of IAAC as cause to excuse the procedural default of this alleged trial
error. Additionally, Martinez does not provide cause to excuse the procedural default
because Claim Seven (A) alleges trial-court error, not trial counsel’s ineffectiveness. See
Martinez (Ernesto), 926 F.3d at 1225 (“[I]neffective assistance of PCR counsel can
constitute cause only to overcome procedurally defaulted claims of ineffective assistance
of trial counsel.”).
The Court rejects Morris’s argument that Martinez and Davila, read together,
provide cause to overcome the default of unpreserved trial error claims (see Doc. 34 at
152–53) because this unauthorized expansion of the Martinez exception would surely
swallow the whole. Moreover, the premise of Morris’s argument, that Davila does not
preclude the use of ineffective assistance of post-conviction counsel to excuse the default
of IAAC claims (see Doc. 34 at 25), is patently incorrect, as the Court in Davila did
precisely that. See Davila, 582 U.S. at 529 (declining to extend Martinez to allow a federal
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court to hear a substantial, but procedurally defaulted, IAAC claim when a prisoner’s state
postconviction counsel provides ineffective assistance by failing to raise that claim.) Only
the Supreme Court can expand the application of Martinez to other areas, and “further
substantive expansion of Martinez is not . . . forthcoming.” Hurles v. Ryan, 914 F.3d 1236,
1238 n.3 (9th Cir. 2019) (quoting Pizzuto v. Ramirez, 783 F.3d at 1176–77).
Claim Seven (A), which Morris did not raise in state court, is therefore procedurally
defaulted and barred from federal review.
Claim Seven (B)
Morris alleges the trial court erroneously denied his motion for judgment of
acquittal despite insufficient evidence that Morris murdered Codman and Davis, in
violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Doc. 21 at 237–40.)
Respondents assert the claim is unexhausted and procedurally defaulted. (Doc. 27 at 139.)
At the conclusion of the guilt phase of trial, Morris moved for a judgment of
acquittal as to all five counts of first-degree murder under Arizona Rule of Criminal
Procedure 20. (RT 06/29/05 at 112–13.) The trial court denied the motion (see id. at 113),
and Morris did not appeal this decision, nor did he argue that the trial court’s denial violated
his Fifth, Sixth, Eighth, or Fourteenth Amendment rights. (See DA 29.) Morris asserts he
nonetheless fairly presented the substance of his federal claim by arguing in his Opening
Brief that the State failed to establish the corpus delicti for the deaths of Codman and Davis.
(Doc. 34 at 155–56) (citing DA 29 at 20, 23–29, 30–32). The fair presentation requirement
for claim Seven (B) is satisfied, Morris contends, because the state-law analysis on the
issue is “fundamentally identical” to the federal-law analysis applied to constitutional
challenges to the sufficiency of the evidence. (Id. at 156.) (citing Scarpa v. Dubois, 38
F.3d 1, 7 (1st Cir. 1994)).
The Supreme Court has left open the question whether raising a state claim that is
“identical” to a federal claim suffices to fairly present the federal claim, see Baldwin v.
Reese, 541 U.S. 27 (2004); see also Peterson, 319 F.3d at 1160 (noting that the Court has
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not decided whether “citation of an identical or functionally identical state-law claim is
sufficient to present a federal claim”). “But raising a state claim that is merely similar to
a federal claim does not exhaust state remedies.” Fields, 401 F.3d at 1022–23 (citing
Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996)).
Even if raising identical or “functionally identical” state and federal claims may
satisfy the exhaustion requirement, Morris fails to establish that the state courts treat “his
particular claimed due process violation” identically under both state and federal law. See
Fields, 401 F.3d at 1022–23 (“Petitioner must show that the Washington state courts treat
his particular claimed due process violations identically. . . .”). “In the absence of an
affirmative statement by the [state supreme court] that it considers a particular state and
federal constitutional claim to be identical, rather than analogous . . . Petitioner was
required to raise his federal claims affirmatively; we will not infer that federal claims have
been exhausted.” Fields, 401 F.3d at 1024. Morris proffers nothing to show an identity
between a state of Arizona corpus delicti claim and a federal insufficiency of the evidence
claim, let alone an affirmative statement by the Arizona Supreme Court.
The corpus delicti rule demands that before a defendant’s statements are admissible
as evidence of a crime, the State must show “proof of a crime and that someone is
responsible for that crime.” Jones, 198 Ariz. at 22, 6 P.3d at 327 (citations omitted). Such
evidence “need not be of the quantum of proof beyond a reasonable doubt.” Id. In contrast,
federal insufficiency of the evidence claims require the defendant to show that “upon the
record evidence adduced at the trial no rational trier of fact could have found proof of guilt
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324 (1979). The claims
are not coextensive and Morris therefore has failed to establish exhaustion.
Because the claim is unexhausted and would be precluded if raised in a successive
post-conviction petition, it is procedurally defaulted. See Ariz. R. Crim. P. 32.2(b);
32.1(b)–(h). Morris argues the default is excused by the ineffective assistance of appellate
counsel coupled with PCR counsel’s subsequent failure to raise an IAAC claim under
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Martinez. (Doc. 34 at 152–53; see also id. at 24–25.) As discussed in Claim Seven (A),
above, because Morris did not exhaust this IAAC claim in his PCR petition, he may not
use an IAAC claim as cause to excuse the procedural default, and Martinez does not
provide cause to excuse the default because Claim Seven (B) alleges trial-court error, not
trial counsel’s ineffectiveness. See Martinez (Ernesto), 926 F.3d at 1225.
Claim Seven (B), which Morris did not raise in state court, is therefore procedurally
defaulted and barred from federal review.
I. Claims Eight and Twenty-Two (C)
Morris alleges the introduction of unreliable scientific evidence rendered his trial
fundamentally unfair in violation of his due process rights under the Fourteenth
Amendment (Claim Eight). (Doc. 21 at 240–45.) He asserts that the State presented
“scientifically unreliable” evidence through the testimony of the medical examiners related
to skin slippage, anal defects, a vaginal bruise, and cause of death45 (Doc. 21 at 241.)
45 Morris asserts that testimony from Dr. Horn and Dr. Hu regarding friction or
rubbing as a cause of skin slippage in victims Noah and Codman (see RT 06/27/05 at 85–
86; 06/28/05 at 22, 26) was incorrect and misleading regarding the origins and causes of
skin slippage, as explained by Dr. Posey in Morris’s PCR proceedings. (Doc. 21 at 242)
(citing PCR EH. Ex. 6 at 6, 7, 9). He also asserts that Dr. Horn’s testimony regarding
defects around Castillo’s anus as due to sexual activity or insect activity (see RT 06/15/05
at 96) was “scientifically incorrect,” as explained by Dr. Posey in Morris’s PCR
proceedings. (Doc. 21 at 243) (citing Posey Orig. Rpt. at 12; PCR EH Ex. 6 at 7). Morris
further asserts that Dr. Keen’s testimony that there was a bruise or contusion found on the
right lateral wall of Noah’s vagina, “a fact that was then used by the prosecutor to argue
that the murder was cruel at the aggravation phase,” was in fact “an autopsy artifice
misinterpreted as a contusion,” and the medical examiner’s conclusion that it was a
contusion was “disingenuous and inappropriate,” as Dr. Posey opined in his report. (Doc.
21 at 243) (citing Posey Orig. Rpt. at 11). Finally, Morris asserts that the medical
examiners’ testimony as to the cause of death for victims Codman, Davis, Velasquez, and
Castillo (see RT 06/15/05 at 98, 101; RT 06/28/05 at 41, 55–58, 71; RT 06/29/05 at 40–
41, 47; PCR EH Ex. 11 at 914, 916; Posey Orig. Rpt. at 10, 15) “was not based in science.”
(Doc. 21 at 243.)
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Morris concedes this claim is unexhausted but asserts the procedural default of the claim
is excused by the ineffective assistance of appellate and PCR counsel. (Id. at 240–41.)
Because this claim alleges trial-court error, not ineffective assistance of trial
counsel, the ineffective assistance of PCR counsel does not provide cause to excuse the
procedural default of the claim. See Martinez (Ernesto), 926 F.3d at 1225.
Morris also asserts the ineffective assistance of appellate counsel excuses the default
of this claim and that he exhausted a claim of ineffective assistance of appellate counsel
for failing to challenge the admission of unreliable evidence during PCR proceedings.
(Doc. 34 at 158) (citing Coleman, 501 U.S. at 753–54; Carrier, 477 U.S. at 488). But
before Morris can rely on the ineffective assistance of appellate counsel to excuse the
default of Claim Eight, he must establish that he exhausted an ineffective assistance of
appellate counsel claim based specifically on appellate counsel’s failure to assert that the
trial court admitted medically unreliable testimony. See Carrier, 477 U.S. at 489 (“[A]
claim of ineffective assistance” generally must “be presented to the state courts as an
independent claim before it may be used to establish cause for a procedural default.”);
Carpenter, 529 U.S. at 453 (“[A]n ineffective-assistance-of-counsel claim asserted as
cause for the procedural default of another claim can itself be procedurally defaulted”).
With two exceptions, as discussed below, Morris failed to do so.
The IAAC claim Morris raised in his PCR petition was more circumscribed than the
IAC claim he argues as cause here. Embedded in the PCR petition claim alleging “NEW
LAW” and citing an intermediary appellate court’s decision addressing the admissibility
of expert testimony, Morris alleged appellate counsel was ineffective for failing to argue
that the trial court erred by denying defense counsel’s objection to Dr. Horn’s testimony
regarding the information he received from Detective Dillian that led him to conclude that
Castillo died from ligature strangulation. (ROA 307 at 57–58.) Similarly, he alleged
appellate counsel was ineffective for failing to make the same argument regarding Dr. Hu’s
testimony about Codman’s cause of death. (Id. at 59.)
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In petitioning the Arizona Supreme Court for review, Morris dropped this claim
altogether, asking the court to review only the PCR court’s determination regarding a claim
that he was denied his right to confront Dr. Zhang when Dr. Keen testified as to the contents
of Dr. Zhang’s autopsy report. (PR 7 at 41). The Arizona Supreme Court denied the claim
without comment. (PR 27.)
Morris sufficiently exhausted the IAAC claim alleging appellate counsel failed to
argue the trial court erred by permitting Drs. Hu and Horn to testify regarding Castillo’s
and Codman’s cause of death because Morris raised this claim in the PCR petition and then
argued generally in his request for review that the PCR court denied him due process by
failing to grant a hearing on all of the claims raised in his PCR petition (see PR 7 at 1–2,
81), and by not explicitly waiving consideration of this IAAC claim. See Sandgathe v.
Maass, 314 F.3d 371, 378 (9th Cir. 2002) (instructing that the Ylst presumption of
exhaustion applies when the petitioner argues in his petition for review, generally, that the
trial court decision was in error and does not indicate a waiver of the federal claim
previously decided). Although Sandgathe was called into question in Castillo, 399 F.3d at
1001, it remains the law in this circuit. Ybarra, 656 F.3d at 991 (citing Sandgathe with
approval). Because Morris raised the IAAC claim in his PCR proceedings and the PCR
court ruled on it, he satisfies the threshold inquiry. See Carpenter, 529 U.S. at 452–53. To
establish cause for the claim’s federal default, he must next establish that his appellate
counsel’s performance was ineffective under Strickland v. Washington, 466 U.S. 668
(1984). See Visciotti v. Martel, 862 F.3d 749, 769 (9th Cir. 2016).
Here, as the Court explains below in addressing Claim Twenty-Two (C), the IAAC
claim is meritless because appellate counsel did not perform ineffectively. Accordingly,
Morris has not shown cause to overcome the default of this portion of Claim Eight.
As to the remainder of Claim Eight, the related allegations of ineffective assistance
of counsel were neither raised in Morris’s PCR petition nor ruled on by the state courts.
“[T]he exhaustion doctrine . . . generally requires that a claim of ineffective assistance be
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presented to the state courts as an independent claim before it may be used to establish
cause for a procedural default.” Carrier, 477 U.S. at 488–89. In Arizona, fair presentation
of a federal habeas claim in state court requires capital petitioners to present their
allegations not only to the PCR court but also to the Arizona Supreme Court upon denial
of relief. See O’Sullivan, 526 U.S. at 848; Swoopes, 196 F.3d 1008 (explaining that capital
petitioners must seek review in Arizona Supreme Court to exhaust claims). A general
claim raised in state court cannot exhaust a new specific argument raised in federal habeas.
Atkins, 122 F.4th at 782. With the exception of the two claims discussed above, Morris
did not “fairly present” an IAAC claim alleging appellate counsel was ineffective for
failing to argue that the introduction of unreliable scientific evidence rendered his trial
fundamentally unfair in violation of his due process rights. Appellate counsel’s alleged
ineffectiveness, therefore, is itself unexhausted and may not serve as cause to excuse the
procedural default of the remainder of Claim 8. See Carrier, 477 U.S. at 489. Claim Eight
is therefore procedurally defaulted and barred from federal review.
In Claim Twenty-Two (C), Morris alleges appellate counsel failed to challenge the
introduction of unreliable scientific testimony from the medical examiners. (Doc. 21 at
309–11.) Morris alleged in his PCR petition that Drs. Hu and Horn’s testimony was
improperly admitted at trial. (ROA 307 at 58.) Specifically, Morris asserted that “[w]hen
a medical examiner’s opinion as to the cause of death ‘is based largely on the testimony of
lay witnesses, whose credibility the jury can determine without the aid of expert testimony,’
the expert’s opinion is inadmissible . . . .” (Id.) (quoting State v. Sosnowicz, 229 Ariz. 90,
97–98, 270 P.3d 917, 924–25 (App. 2012) (footnote omitted)).
The PCR court found Morris failed to show counsel was ineffective:
At trial, Dr. Horn testified that it is generally accepted practice in his field to
rely not just on the body, but also on anecdotal information from
investigating detectives attending the autopsy when determining cause of
death. (RT 6/15/05, at 90-91). Due to the decomposition of the bodies, Dr.
Horn and Dr. Hu also relied on defendant’s statements, anecdotal
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information from detectives, and the circumstances and available evidence
surrounding the other victims’ deaths to opine as to the causes of death of
victims Castillo and Codman, respectively. A medical examiner’s opinion
as to cause of death is clearly within his/her expertise and admissible. The
Supreme Court would not have found error in allowing these medical
examiners to so testify.
(ROA 354 at 10.) The Arizona Supreme Court denied the claim without comment. (PR
27.)
The state court’s decision was neither contrary to nor an unreasonable application
of clearly established federal law. To prevail on a claim of ineffective assistance of
appellate counsel, a petitioner must show that counsel’s appellate advocacy fell below an
objective standard of reasonableness and a reasonable probability that, but for counsel’s
deficient performance, the petitioner would have prevailed on appeal. Smith v. Robbins,
528 U.S. 259, 285–86 (2000). “[F]ailure to raise untenable issues on appeal does not fall
below the Strickland standard.” Turner v. Calderon, 281 F.3d 851, 872 (9th Cir. 2002).
Morris has not shown the PCR court’s decision is so obviously wrong that its error
lies “beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103. As
discussed in Claim One, the Arizona Supreme Court rejected Morris’s related claim that
the prosecutor improperly influenced the medical examiners by providing them with
statements Morris made to the police. Morris, 215 Ariz. at 336, 160 P.3d at 215. The
Supreme Court noted that, under Arizona law, a peace officer is required to report the
results of an investigation surrounding a suspicious death to the county medical examiner
and the medical examiner is statutorily required to make inquiries regarding the cause and
manner of death. Id. (citing A.R.S. §§ 11-593(B), 11-594(A)(4), 11-594(A)(2) (2001)).
The court explained:
[T]he record does not suggest that Morris’s statements improperly influenced
either of the medical examiners. Both testified simply that they found
nothing inconsistent with those statements in their respective autopsies of
Codman and Davis, and they acknowledged that, without the statements, they
would have believed that drug intoxication caused the deaths.
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Id. Based on this conclusion, the PCR court’s determination was not unreasonable when
it found that the Arizona Supreme Court would have found no error in allowing these
medical examiners to testify about cause of death.
Additionally, Morris’s argument that appellate counsel was ineffective for failing to
argue the medical examiners’ testimony was inadmissible rested on a single case decided
after the Arizona Supreme Court denied Morris’s direct appeal. (ROA 307 at 58) (citing
Sosnowicz, 229 Ariz. at 97–98, 270 P.3d at 924–25). Morris categorized this as one of
several claims based on “New Law.” (ROA 307 at 58.) In evaluating an attorney’s
performance, “every effort [must] be made . . . to evaluate the conduct from counsel’s
perspective at the time.” Strickland, 466 U.S. at 689 (emphasis added). Morris’s appellate
counsel cannot be ineffective for failing to argue a theory that had not been developed at
the time of the appeal.
Nor do circumstances in this case, considered in light of the decision in Sosnowicz,
“come close to showing the sort of ‘extreme malfunctio[n] in the state criminal justice
syste[m]’ that would permit federal court intervention.” Kayer, 592 U.S. at 123–24
(quoting Richter, 562 U.S. at 102). In Sosnowicz, the court held that the medical examiner
impermissibly testified under Ariz. R. Evid. 702 that the victim died from a “homicide”
rather than an accident, where the medical examiner did not rely on any specialized
knowledge, rendered the opinion based largely on the testimony of interested lay witnesses,
and was not in any better position to determine the manner of death than was the jury. 229
Ariz. at 95–96, 270 P.3d at 922–23.
In Sosnowicz, there was no dispute as to cause of death; the victim died from blunt
force trauma after being run over by the defendant.46 229 Ariz. at 94, 270 P.3d at 921. The
medical examiner, however, went further by determining “that the manner of death was
46 The court clarified that “cause of death” is “the disease or injury responsible for
the lethal sequence of events,” and “manner of death” “explains how the cause of death
arose.” Sancowicz, 229 Ariz. at 94, 270 P.3d at 921.
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homicide based on his findings from the autopsy and the information he received from the
police.” Id. Unlike a cause of death determination, manner of death goes to the ultimate
question of criminal liability and invades the province of the jury. “[A]n expert is not
permitted to tell a jury how to decide a case.” Id. at 97, 270 P.3d at 924; see also id. at 97
n.10 (recognizing the distinction between legal causation and medical causation).
The Court of Appeals in Sancowicz determined that the medical examiner’s
testimony as to manner of death was impermissible, but declined “to formulate a bright-
line rule that will govern every scenario in which a medical examiner may be asked to
testify regarding the victim’s manner of death in a criminal case over the defendant’s
objection.” 229 Ariz. at 97, 270 P.3d at 925. The court contrasted the facts in Sancowicz
with an out-of-state case which involved a victim whose body revealed no evident violence
or trauma and an “indefinite” toxicology report. State v. Commander, 396 S.C. 254, 721
S.E.2d 413, 415 (2011). The medical examiner relied “on anecdotal history relayed by
officers at the scene, together with the lack of normal indicators of physical violence,” and
opined that the cause of death was asphyxiation and that the manner of death was homicide
due to the suspicious nature of the victim’s death. Id. at 258, 721 S.E.2d at 415. The court
found the testimony admissible, first noting that state law requires medical examiners to
make an initial inquiry and form the basis of a medical conclusion as to the cause and
manner of death in certain instances, including if a person dies in a suspicious or unusual
manner. Id. at 264, 721 S.E. 2d at 418. To aid in the determination of cause and manner
of death, a medical examiner routinely conducts an autopsy. Id. at 264–65, 721 S.E. 2d at
419. “Because the anecdotal history is an essential component of any autopsy,” the court
held that “testimony concerning findings based on this information falls within the
umbrella of the expert’s specialized knowledge.” Id. at 267, 721 S.E.2d at 420. The court
noted that the medical examiner “testified extensively concerning his methodology, stating
he arrived at the cause and manner of death through a process of elimination, in which the
lack of physical injury figured prominently into his opinion that Victim died from
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asphyxiation as a result of homicide. The information gleaned from the police investigation
formed merely one aspect of his examination.” Id. Such testimony is admissible, the court
held, “so long as the expert does not opine on the criminal defendant’s state of mind or
guilt or testify on matters of law in such a way that the jury is not permitted to reach its
own conclusion concerning the criminal defendant’s guilt or innocence.” Id. at 269, 721
S.E.2d at 421.
The Arizona Court of Appeals did not disagree with the result or find it inconsistent
with the result reached in Sosnowicz:
The history relied on by the pathologist in Commander, which consisted of
objectively verifiable data, was, as the court noted, “of a type reasonably
relied upon by experts” in determining the cause and manner of death. See
Rule 703. Insofar as the record suggests here, however, the history relied on
by [the medical examiner] was comprised of the statements by, for the most
part, interested witnesses whose accuracy and credibility were necessarily
subject to question. Indeed, had the court in Commander been faced with
circumstances similar to those in this case, it may well have reached a
different result.
Sosnowicz, 229 Ariz. at 97, 270 P.3d at 924. Thus, even if Sosnowicz applied to the
question of appellate counsel’s ineffectiveness, the PCR court’s prejudice determination
was not unreasonable. Unlike Sosnowicz, the medical examiners here did not testify as to
the “ultimate question” of criminal liability. And as the Arizona Supreme Court
determined on direct appeal, Arizona statutes permit medical examiners to receive
information about the circumstances surrounding a suspicious death and there was nothing
in the record to suggest that the medical examiners were improperly influenced by the
statements in providing their expert opinions. Morris, 215 Ariz. at 336, 160 P.3d at 215.
The Court concludes that the state court’s rejection of the IAAC claim was not “so
lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” See Matthews, 567 U.S.
at 47 (citing Richter, 562 U.S. at 101–02). Claim Twenty-Two (C) is denied.
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J. Claim Eleven
Morris alleges the trial court’s admission of excessively gruesome photographs
during the guilt and aggravation phases of trial resulted in the denial of a fair trial as
guaranteed by the Sixth and Fourteenth Amendments, violated due process under the Fifth
and Fourteenth Amendments, and rendered Morris’s death sentence unreliable under the
Eighth Amendment. (Doc. 21 at 251–55.)
In his Opening Brief, Morris argued the trial court abused its discretion by allowing
the prosecutor to show the jurors gruesome photographs of the victims’ decaying corpses
solely for the purpose of upsetting and inflaming the jurors. (DA 29 at 54–58.) The
Arizona Supreme Court affirmed, finding none of the photographs which Morris
specifically objected to on appeal were gruesome and that the trial judge had carefully
analyzed each photograph for purposes of Arizona Rule of Evidence 403 and determined
any prejudicial effect did not substantially outweigh the probative value. Morris, 215 Ariz.
at 339–40, 160 P.3d at 218–19. On that record, the court “could not conclude that the trial
judge abused his discretion in admitting the photographs.” Id. at 340, 160 P.3d at 218–19.
Morris alleges the Arizona Supreme Court’s finding was contrary to or an unreasonable
application of the law and an unreasonable determination of the facts. (Doc. 21 at 251–
52.) Respondents assert Claim Eleven is unexhausted and procedurally defaulted. (Doc.
27 at 150–51.)
To fairly present a federal claim, a state prisoner must present to the state courts
both the operative facts and the federal legal theories that animate the claim. See Gray,
518 U.S. at 162–63; Castillo, 399 F.3d at 999. Morris asserts that the substance of his
federal claim was preserved because he cited Brecht, 507 U.S. at 623, on direct appeal,
making it “clear” that he “was raising a constitutional challenge because he relied on the
harmlessness inquiry applicable to such constitutional violations.” (Doc. 34 at 171.) The
Court disagrees.
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Morris’s Opening Brief focused exclusively on state law. (See DA 29 at 55) (“This
Court assesses the admissibility of photographs under a three-part test, examining 1)
relevance, 2) tendency to incite or inflame, and 3) the probative value versus the potential
to cause unfair prejudice.”) (citing State v. Davolt, 207 Ariz. 191, 208, 84 P.3d 456, 473
(2004)); see also Arrendondo v. Neven, 763 F.3d 1122, 1138 (9th Cir. 2014) (“Because
Arrendondo’s brief before the Nevada Supreme Court focused exclusively on state law, he
failed to present his compulsory-process claim as a federal claim.”).
Moreover, Morris’s citation to Brecht’s harmlessness standard along with a stated
conclusion that he did not receive a “fair trial” was insufficient to preserve the
constitutional claim. “General appeals to broad constitutional principles, such as due
process, equal protection, and the right to a fair trial, do not establish fair presentation of a
federal constitutional claim.” Castillo, 399 F.3d at 1002 (“Exhaustion requires more than
drive-by citation, detached from any articulation of an underlying federal legal theory.”);
Fields, 401 F.3d at 1021; Shumway, 223 F.3d at 987 (finding it insufficient for prisoner to
make “a general appeal to a constitutional guarantee,” such as a naked reference to “due
process,” or to a “constitutional error” or a “fair trial”).
Because the claim is unexhausted and would be precluded if raised in a successive
post-conviction petition, it is procedurally defaulted. See Ariz. R. Crim. P. 32.2(b);
32.1(b)–(h). Morris argues the default of this claim is excused by appellate counsel’s
ineffectiveness coupled with PCR counsel’s subsequent failure to raise an IAAC claim
under Martinez. (Doc. 34 at 152–53; see also id. at 24–25.) As previously discussed,
because Morris did not first exhaust this IAAC claim in his PCR petition, he may not use
an IAAC claim as cause to excuse the procedural default of this alleged trial error, and
Martinez does not provide cause to excuse the procedural default because Claim Eleven
alleges trial-court error, not trial counsel’s ineffectiveness. See Martinez (Ernesto), 926
F.3d at 1225. Claim Eleven is denied.
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K. Claim Twelve
Morris alleges the State failed to present sufficient evidence supporting the (F)(6)
aggravating factor and that this error was compounded by the Arizona Supreme Court on
direct appeal in violation of Morris’s rights under the Fifth, Eighth, and Fourteenth
Amendments. (Doc. 21 at 256–64.) Morris concedes the claim was not presented in state
court, but asserts the claim was exhausted by the Arizona Supreme Court’s abuse of
discretion review. (Id. at 256.)
The Arizona Supreme Court reviewed Morris’s death sentence pursuant to A.R.S.
§ 13-703.0547 and concluded that the jury did not abuse its discretion in finding that the
State proved the (F)(6) factor beyond a reasonable doubt because the State presented expert
evidence that strangulation victims remain conscious and experience pain for some period
of time and presented additional evidence that three of the victims struggled with Morris.
Morris, 215 Ariz. at 340–41, 160 P.3d at 219–20. Because the finding of cruelty alone was
sufficient to establish the (F)(6) factor, the court did not address whether the jury abused
its discretion in finding that the murders were also heinous or depraved. Id. at 341, 160
P.3d at 220.
Although exhaustion ordinarily requires a petitioner to present both the legal basis
of his federal claim to the state courts and include a thorough description of the operative
facts entitling the petitioner to relief, there are, as potentially relevant here, two additional
mechanisms which may serve to exhaust a claim for purposes of federal habeas review.
First, when a state court is required to review the record for federal constitutional
error, the state court’s determination that there was no such error constitutes exhaustion of
47 For offenses committed after August 1, 2002, the Arizona Supreme Court is
required to review all death sentences to determine “whether the trier of fact abused its
discretion in finding aggravating circumstances and imposing a sentence of death.” A.R.S.
§ 13-703.05(A); see also 2002 Ariz. Sess. Laws 5th Spec. Sess. CH.1 (S.B. 1001) (stating
that A.R.S. § 13-703.05 applies to offenses committed on or after August 1, 2002). Morris
was the first case to be reviewed under this statute. 215 Ariz. at 340, 160 P.3d at 219.
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constitutional claims that are within the scope of the court’s mandatory review. Beam v.
Paskett, 3 F.3d 1301, 1306–07 (9th Cir. 1993), overruled on other grounds by Lambright
v. Stewart, 191 F.3d 1181 (9th Cir. 1999) (en banc); but see Martinez-Villareal, 80 F.3d at
1306 (“Under Arizona law, fundamental error review does not prevent subsequent
procedural preclusion.”). In this case, however, contrary to Morris’s assertion, the review
provision in A.R.S. § 13-703.05 mandates only that the court “review death sentences to
determine whether the trier of fact abused its discretion in finding aggravating
circumstances and imposing a sentence of death.” It does not mandate constitutional
review of the jury’s findings. Thus, the state court’s application of this mandatory
provision, without more, did not exhaust Morris’s claim. Cf. Moormann, 426 F.3d at 1057–
58 (finding unexhausted issues that are not included in the scope of the Arizona Supreme
Court’s independent review of the death sentence as defined by that court).
Second, a claim may be exhausted if the State’s highest court expressly rules on the
federal constitutional issue even when a petitioner fails to fairly present the claim because
in that case “there is no possibility of ‘friction between the state and federal court
systems.’” Sandgathe v. Maass, 314 F.3d 371, 377 (9th Cir. 2002) (quoting O’Sullivan,
526 U.S. at 845). “[T]here is no point asking whether a state court had a ‘full and fair
opportunity to resolve federal constitutional claims,’ . . . when the state court in fact did
so.” Id. (quoting O’Sullivan, 526 U.S. at 845).
Morris contends the standard of review articulated by the Arizona Supreme Court’s
abuse of discretion review – whether there is “any reasonable evidence in the record to
sustain” the jury’s finding – id. at 341, 160 P.3d at 220 (citing State v. Veatch, 132 Ariz.
394, 396, 646 P.2d 279, 281 (1982)), necessarily encompasses the constitutional standard
expressed in Jackson, 443 U.S. at 319: 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 crime beyond a reasonable doubt.” (Doc. 34 at 176.) But “[t]he mere
similarity between a claim of state and federal error is insufficient to establish exhaustion.”
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Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). A petitioner must make the federal
basis of a claim explicit either by citing specific provisions of federal law or case law,
Lyons, 232 F.3d at 670, or by citing state cases that plainly analyze the federal
constitutional claim, Peterson, 319 F.3d at 1158.
By analogy, therefore, before Morris can rely on the Arizona Supreme Court’s
ruling as a means of exhaustion, it must be clear that the court ruled on the federal claim.
The Arizona Supreme Court conducted its mandatory review by analyzing the jury’s
finding of the cruelty prong of the (F)(6) aggravating factor. Morris, 215 Ariz. at 340–41,
160 P.3d at 219–20. The court made no reference to the federal constitution, Jackson, or
any other federal case, and its analysis referenced only a single state case, Veatch, 132 Ariz.
at 396, 646 P.2d at 281. Veatch, in turn, established that “an appellate court must view the
evidence on appeal in a light most favorable to support the judgment,” and the judgment is
presumed correct “if there is any reasonable evidence in the record to sustain it.” Id. This
standard is not identical to the standard in Jackson. See Jackson, 443 U.S. at 320 (explicitly
rejecting the call for a “no evidence” standard that would be satisfied by a “mere modicum”
of evidence and holding instead that the due process standard is “record evidence [that]
could reasonably support a finding of guilt beyond a reasonable doubt”). In neither Veatch
nor Morris did the court explicitly analyze the sufficiency of the evidence under federal
due process standards or cite any federal case or law applying the constitutional standard.
Accordingly, not only did Morris not fairly present a Jackson claim to the Arizona Supreme
Court, that court did not decide such a claim.48
48 Subsequently, in another case in which the defendant challenged the sufficiency
of the evidence to support an aggravating factor, the Arizona Supreme Court clarified that
a jury abuses its discretion if, reviewing the facts in the light most favorable to sustaining
the verdict, it finds an aggravating circumstance when the record reflects insufficient
evidence to support that finding beyond a reasonable doubt. State v. Roque, 213 Ariz 193,
141 P.3d 368 (2006). Thereafter, this standard, which is similar to the Jackson standard,
was utilized by the Supreme Court in its abuse of discretion review under 13-703.05, see
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Morris’s claim, therefore, remains unexhausted and procedurally defaulted.
Morris asserts the ineffective assistance of appellate counsel excuses the default of
this claim, and that he exhausted this IAAC claim. (Doc. 34 at 177) (citing Doc. 21 at 303,
305–07 (Claim Twenty-Two (A))). In his postconviction petition, Morris asserted that
appellate counsel was ineffective for failing to argue that there was insufficient evidence
of cruelty. (Doc. 307 at 7.) He alleged he was prejudiced because, in the absence of an
appellate challenge, the PCR court reviewed only whether the jury had abused its discretion
in deciding that each murder was especially cruel, not whether there was sufficient
evidence of cruelty under State v. Snelling, 225 Ariz. 182, 236 P.3d 409 (2010). (Id.)
While Morris did argue in his PCR petition that appellate counsel was ineffective
for failing to challenge the sufficiency of the evidence (see ROA 307 at 7), he did not argue
that appellate counsel was ineffective for failing to raise a constitutional due process claim.
Thus, this claim, asserted as cause to excuse the default of Morris’s Jackson claim, is itself
defaulted. Moreover, the claim is meritless.
“Jackson leaves juries broad discretion in deciding what inferences to draw from
the evidence presented at trial, requiring only that jurors ‘draw reasonable inferences from
basic facts to ultimate facts.’” Lucero v. Holland, 902 F.3d 979, 994 (9th Cir. 2018) (citing
Coleman v. Johnson, 566 U.S. 650, 655 (2012) (per curium)). Importantly, “this inquiry
does not require a court to ask itself whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt.” Jackson, 443 U.S. at 318–19 (internal
quotations omitted). Instead, “[t]his familiar standard gives full play to the responsibility
of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts.” Id. at 319.
e.g., State v. Gunches, 225 Ariz. 22, 25, 234 P.3d 590, 593 (2010), State v. Robinson, 253
Ariz. 121, 134, 509 P.3d 1023, 1036 (2022). To the extent the application of this standard
of review may exhaust a Jackson claim, it was not the standard the court applied in Morris.
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The juries’ determination that the murders were especially cruel was not “so
arbitrary or capricious as to constitute an independent due process or Eighth Amendment
violation.” Jeffers, 497 U.S. at 780; see Styers v. Schriro, 547 F.3d 1026, 1033 (9th Cir.
2008). “A state court’s finding of an aggravating circumstance in a particular case . . . is
arbitrary or capricious if and only if no reasonable sentencer could have so concluded.”
Jeffers, 497 U.S. at 783 (quoting Jackson, 443 U.S. 307).
Arizona courts have defined cruelty to exist “if the victim consciously experienced
physical or mental pain prior to death, and the defendant knew or should have known that
suffering would occur. Mental anguish includes a victim’s uncertainty about her ultimate
fate.” State v. Trostle, 191 Ariz. 4, 951 P.2d 869, 883 (1997) (internal quotation marks and
citations omitted). The victim must have been conscious “during at least some portion of
the crime.” State v. Jones, 205 Ariz. 445, 449, 72 P.3d 1264, 1268 (2003) (citing Trostle,
191 Ariz. at 18, 951 P.2d at 883).
Here, a rational factfinder could have found that the victims were conscious before
Morris killed them by strangulation because the “medical examiner testified that all of the
victims would have experienced pain for some period before losing consciousness.”49 Id.
at 338, 160 P.3d at 217. Morris asserts that this evidence is insufficient under the court’s
decision in Snelling, 225 Ariz. at 188–89, 236 P.3d at 415–16 (refusing to find all
strangulations are “per se physically cruel absent specific evidence that the victim
consciously suffered physical pain.”). In Snelling, however, “the medical examiner did not
testify that victims in general always experience, or [the victim] in particular experienced
pain during strangulation.” Id. at 189, 236 P.3d at 416. Specifically contrasting the facts
in Snelling, where the evidence of the victim’s conscious experience of physical pain was
49 Additionally, the Arizona Supreme Court noted that there was evidence from
which a reasonable juror could infer that three of the victim’s struggled. Morris, 215 Ariz.
at 338, 160 P.3d at 217. Morris asserts this determination was no more than speculation.
The Court need not address this assertion, however, because the evidence of consciousness
and suffering as to all five victims is sufficient to support the (F)(6) finding.
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inconclusive, with the facts in Morris, where the State presented evidence that
strangulation victims remain conscious and experience pain for some time, the court
explained that “[a]lthough one might reasonably suspect that any strangulation victim must
experience physical pain, speculation cannot support a finding of especial cruelty when . . .
the record contains no evidence of the physical pain required for an (F)(6) finding of
physical pain.” Id. at 190, 236 P.3d at 417. A reasonable inference to be drawn from the
evidence, especially when resolving conflicts in favor of the prosecution, is that conscious
suffering was established, which, under Arizona law, is sufficient evidence of cruelty. See
Bolton, 182 Ariz. at 311, 896 P.2d at 851 (citing State v. Jimenez, 165 Ariz. 444, 453, 799
P.2d 785, 794 (1990)). Claim Twelve is procedurally defaulted and barred from federal
review. It is also meritless.
L. Claim Thirteen
In Claim 13 of his petition, Morris seeks relief for a violation of his due process
right to be sentenced by a jury correctly informed of his ineligibility for parole under Lynch,
578 U.S. 613, and Simmons, 512 U.S. 154. (Doc. 21 at 264–69.) This claim was denied by
separate order on June 28, 2023. (Doc. 84.)
M. Claim Fourteen
Morris argues that his absence during the jury commissioner’s prescreening of the
jury for hardship regarding the length of the trial deprived him of due process (Claim
Fourteen (A)), and that the jury commissioner’s prescreening process violated his right to
a jury drawn from a representative cross-section of the community (Claim Fourteen (B)).
(Doc. 21 at 269–76.)
The Arizona Supreme Court summarized the facts comprising this claim:
Because the trial was expected to last six to eight weeks, the judge ordered
the jury commissioner to poll the jurors to identify those who claimed that
they could not serve for such a long trial. The jury commissioner gave those
jurors one-page questionnaires on which they could state the reasons for their
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inability to serve.[50] The lawyers then reviewed the questionnaires for
potentially invalid excuses and submitted those questionnaires to the judge
for further review.
After reviewing the questionnaires, the judge determined that approximately
twenty prospective jurors had provided questionable excuses. When he
asked the jury commissioner to send those twenty individuals to the
courtroom for further questioning, the jury commissioner informed him that
only four of the twenty were available.[51] The jury commissioner had
released the remaining sixteen to other panels.
Defense counsel admitted that he could not identify any group excluded from
service or show that the jury did not represent a cross-section of the
community, but objected to the prescreening procedure because it left only
“volunteers” as prospective jurors. The trial judge rejected this challenge.
Morris, 215 Ariz. at 334, 160 P.3d at 213.
Claim Fourteen (A)
Morris alleges the jury commissioner’s reassignment to other trials of the
prospective jurors who indicated they had a hardship, without making those jurors available
for questioning in Morris’s presence, violated his rights under the Sixth and Fourteenth
Amendments to be present during a critical stage of his trial. (Doc. 21 at 269, 272–73.)
On direct appeal, Morris argued that the trial court’s overruling of his objection to
the jury commissioner’s prescreening of potential jurors outside the presence of Morris and
his counsel was inconsistent with Sixth Amendment guarantees for an accused to be present
50 Approximately 330 to 350 potential jurors were called for the purpose of seating
seven or eight juries in total that day; they were not designated specifically for Morris’s
trial. (RT 6/01/05 at 3, 11.) Of those potential jurors, 87 indicated they did not have a
hardship that would prevent them from serving. (Id. at 3–4.) The trial court subsequently
rejected the excuses offered by two potential jurors, resulting in a venire of 89 jurors for
Morris’s trial.
51 Morris alleged in his Opening Brief that all but four of the questionnaires from
the twenty “suspect” venire persons were missing. (DA 29 at 38) (citing RT 06/01/05 at
18). The jury commissioner was ultimately unable to locate these forms. (Id.)
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at all critical stages of the proceeding and his due process right to be present during jury
selection. (DA 29 at 40–41.) The Arizona Supreme Court denied the claim, finding:
[E]ven assuming that he was entitled to attend the prescreening process, an
issue we do not reach, any error is harmless because no basis exists on which
we could conclude that Morris’s exclusion from that process affected the
verdict.
Morris, 215 Ariz. at 335, 160 P.3d at 214.
The Arizona Supreme Court’s decision was neither contrary to nor an unreasonable
application of clearly established federal law. There is no clearly established federal law
entitling a criminal defendant to be present during a prescreening process for hardship
regarding the length of trial. A criminal defendant’s “constitutional right to presence is
rooted to a large extent in the Confrontation Clause of the Sixth Amendment,” but “in some
situations where the defendant is not actually confronting witnesses or evidence against
him” the Supreme Court has “recognized that this right is protected by the Due Process
Clause.” United States v. Gagnon, 470 U.S. 522, 526 (1985) (citation omitted). “The
presence of a defendant is a condition of due process to the extent that a fair and just hearing
would be thwarted by his absence, and to that extent only.” Id. (quoting Snyder v.
Massachusetts, 291 U.S. 97, 105–06 (1934)). “Among the proceedings at which a
defendant has such a due process right to be present are ‘the voir dire and empanelling of
the jury.’” United States v. Ehmer, 87 F.4th 1073, 1097 (9th Cir. 2023) (citing Campbell
v. Wood, 18 F.3d 662, 671 (9th Cir. 1994)). “[P]re-screening and excusing potential jurors
‘for hardship’,” however, “is an administrative task that ‘cannot reasonably be considered
a part of the criminal trial’ and that therefore may be conducted by the court or its staff . . .
without the participation of the parties or their lawyers.” Id. at 1098; see also United States
v. Greer, 285 F.3d 158, 168 (2d Cir. 2002) (“[H]ardship questioning is not a part of voir
dire—and thus not a critical stage of the trial during which the parties and counsel must be
present.”); United States v. Moreland, 703 F.3d 976, 982–83 (7th Cir. 2012) (commenting
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that “it is difficult to see” what the defendant’s presence could have added to the jury
administrator’s consideration of hardship excuses outside the defendant’s presence).
Additionally, even if Morris was entitled to be present during the pre-screening
process, violation of the right to be present is subject to harmless error analysis,
notwithstanding Morris’s claim to the contrary. Campbell v. Rice, 408 F.3d 1166, 1172
(9th Cir. 2005) (“The Supreme Court has never held that the exclusion of a defendant from
a critical stage of his criminal proceedings constitutes a structural error.”) (citing Rushen
v. Spain, 464 U.S. 114, 117 (1983) (per curiam)). Morris fails to cite any clearly established
Supreme Court law holding that a defendant’s absence from portions of the jury-selection
process is structural error and therefore per se prejudicial.
In United States v. Gonzalez-Lopez, cited by Morris in support of his claim (see
Doc. 21 at 274), the Court held that the erroneous deprivation of the right to counsel of
choice qualifies as structural error because it “bears directly on the ‘framework within
which the trial proceeds’ . . . .” 548 U.S. 140, 150 (2006) (citing Fulminante, 499 U.S. at
310). But Gonzalez-Lopez did not hold that violation of the right to be present is structural
error, and appellate courts, including the Ninth Circuit, continue to subject such claims to
harmless error review. See United States v. Reyes, 764 F.3d 1184, 1197 n.4 (9th Cir. 2014)
(“[T]he erroneous deprivation of the defendant’s right to be present is subject to harmless
error review. We have continued to apply these precedents after the Supreme Court issued
its opinion in Gonzalez–Lopez.”); see also Hovey, 458 F.3d at 902–03 (“Even if Hovey had
a right to be present at the competency hearing, his exclusion from the hearing was
harmless.”). Thus, it was not contrary to or an unreasonable application of clearly
established federal law for the state court to apply harmless-error review.
Nor did the state court unreasonably apply clearly established federal law in
determining that the denial of Morris’s rights was harmless. Morris argues that it “cannot
be said that Morris’s presence during the jury commissioner’s prescreening of prospective
jurors would have ‘been useless, or the benefit but a shadow,’” because had Morris been
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present “either he or his counsel would have been able to identify other invalid excuses
that went undetected by the jury commissioner.” (Doc. 21 at 274.) This argument,
however, does not go to harmlessness. It goes to Morris’s assertion that he was entitled to
participate in the administrative prescreening of the jurors, an allegation the state court
assumed correct in finding any error “harmless because no basis exists on which we could
conclude that Morris’s exclusion from that process affected the verdict.” Morris, 215 Ariz.
at 335, 160 P.3d at 214. Even assuming Morris was entitled to be present, the state court
conducted a harmless-error analysis and Morris can obtain relief only if that determination
was unreasonable. See Ayala, 576 U.S. at 268. Morris does not challenge the state court’s
ultimate harmlessness conclusion—that no basis exists from which it could be concluded
that Morris’s exclusion from the prescreening process affected the verdict. See Reyes, 764
F.3d at 1193 (finding defendant’s absence from voir dire harmless in light of overwhelming
evidence of guilt). The Arizona Supreme Court’s decision denying relief on this claim was
not contrary to nor an unreasonable application of clearly established federal law. Claim
Fourteen (A) is denied.
Claim Fourteen (B)
Morris alleges “the jury commissioner’s willingness to excuse jurors who might
suffer hardship because of the length of the trial without inquiring into the reasons for the
alleged hardship resulted in a jury comprised essentially of ‘volunteers’” and likely
“disproportionately excluded low-income persons from Morris’s jury because those who
would not opt out would be those with the financial means to be absent from work for two
months.” (Doc. 21 at 275.) Morris alleges the jury selection process violated his right to
a jury drawn from a representative cross-section of the community in violation of the Sixth
Amendment. (Id.) (citing Taylor v. Louisiana, 419 U.S. 522, 537 (1975)).
In his direct appeal, Morris asserted his right to the selection of a jury from a
representative cross-section of the community was violated when the jury commissioner
was allowed to prescreen prospective jurors for hardship based on the expected length of
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the trial. (DA 29 at 44.) He further alleged he was unable to establish “a prima facie
violation of the fair cross-section requirement . . . because the State misplaced the
documents he needed to prove his claim.” (DA 29 at 45.)
The Arizona Supreme Court first identified the three-part test established by the
Supreme Court in Duren v. Missouri, 439 U.S. 357 (1979), for evaluating whether Morris
had made a prima facie showing that the jury did not represent a fair cross-section of the
community:
(1) that the group alleged to be excluded is a “distinctive” group in the
community; (2) that the representation of this group in venires from which
juries are selected is not fair and reasonable in relation to the number of such
persons in the community; and (3) that this underrepresentation is due to
systematic exclusion of the group in the jury-selection process.
Morris, 215 Ariz. at 334, 160 P.3d at 213 (quoting Duren, 439 U.S. at 364).
Addressing the first prong, the court determined Morris had failed to identify a
distinctive group that was excluded from his jury panel. Id. The court also determined
Morris had failed to demonstrate that the jurors who actually served were not fair and
impartial and thus failed to show any actual prejudice resulting from the commissioner’s
prescreening of prospective jurors. Id. (citations omitted).
State criminal defendants have the right to an “impartial jury.” U.S. Const. amend.
VI; Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 379 (1979). To assure this right, the
jury must be selected from a “fair cross section of the community.” Taylor v. Louisiana,
419 U.S. at 529–33; Berghuius v. Smith, 559 U.S. 314 (2010). The Arizona Supreme Court
correctly identified Duren as the controlling test for an alleged lack of a fair cross-section
of the community. Berghuis, 559 U.S. at 319; Roger Murray, 882 F.3d at 808.
Morris alleges the state court’s decision was an unreasonable application of clearly
established federal law. (Doc. 21 at 276.) This bare allegation, however, is insufficient to
carry his burden of demonstrating that the state court applied clearly established Supreme
Court precedent in an objectively unreasonable manner. See Visciotti, 537 U.S. at 25;
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Richter, 562 U.S. at 98 (burden is on the petitioner to show “there was no reasonable basis
for the state court to deny relief.”).
Morris also contends the state court’s finding that he had not identified a distinctive
group that was excluded from the jury pool was an unreasonable determination of the facts
because the jury commissioner lost the forms that disclosed the identities of the prospective
jurors who were excused for hardship. (Doc. 21 at 276.) But even assuming Morris’s
factual allegations are correct and that the missing questionnaires would have supported
his claim that the screening disproportionately excluded low-income persons, his claim
lacks merit.
Morris has not alleged any facts, either in his direct appeal or in this petition, from
which it could be concluded that individuals who face financial hardship are a “distinctive
group” in the community. See Coleman v. McCormick, 874 F.2d 1280, 1284 (9th Cir.
1989) (Duren test not met when petitioner failed to allege any facts from which it could be
concluded that persons from the lower socioeconomic areas of the community formed a
distinctive group, or that if such a group existed it consisted of a sufficient number of
persons so that its systematic exclusion from jury panels would support a fair cross-section
challenge under the Sixth Amendment). Nor is there any clearly established federal law
establishing economic status as a “distinctive group” for purposes of selecting a jury. See
Atwood v. Schriro, 489 F. Supp. 2d 982, 1046 (D. Ariz. 2007) (“[I]ndividuals who face
financial hardship do not constitute a distinctive group, and underrepresentation of poor
people in Petitioner’s particular jury panel does not amount to systemic exclusion.”). See
also Berghuis, 559 U.S. at 333, n.35 (“We have also never ‘clearly’ decided, and have no
need to consider here, whether the impact of social and economic factors can support a
fair-cross-section claim.”); Duren, 439 U.S. at 370, quoting Taylor, 419 U.S. at 534 (“[I]t
is unlikely that reasonable exemptions, such as those based on special hardship, incapacity,
or community needs, ‘would pose substantial threats that the remaining pool of jurors
would not be representative of the community.’”).
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Furthermore, to the extent Morris alleges the missing questionnaires prevented him
from showing the hardship exemption resulted in exclusion of a distinctive socioeconomic
group, “proof of underrepresentation in a single jury” alone does not violate the cross-
section requisite. United States v. Miller, 771 F.2d 1219, 1228 (9th Cir. 1985). Morris
offered no statistical evidence to show systematic underrepresentation of a distinctive
group in the venires from which his jury was selected.
Moreover, the juror forms from sixteen of the potential jurors that were lost
consisted of a single page on which the potential juror’s wrote down the reasons they had
an impediment to serving for the scheduled length of trial. (RT 6/01/05 at 12); see e.g.,
Jury Selection Exhibit 3. Morris offers no evidence that information from the remainder
of the excluded jurors—the large majority of potential jurors exempted for hardship
(approximately 225–245 potential jurors)—was missing. Morris could have attempted to
show that exclusion of these jurors resulted in the exclusion of a distinct group. It is
unlikely the 16 missing questionnaires would have significantly impacted the statistical
analysis of such a claim, and, to the extent they did, the court would have been in a better
position to consider the impact of the missing evidence in any event. Morris’s complete
failure to provide any evidence is fatal to his claim.
The Arizona Supreme Court’s decision denying relief on this claim was not contrary
to nor an unreasonable application of clearly established federal law, nor was it based on
an unreasonable determination of the facts. Claim Fourteen (B) is denied.
N. Claims Fifteen and Twenty-Two (B)
Morris alleges the trial court violated his Sixth and Fourteenth Amendment rights
when it admitted hearsay testimony in violation of the Confrontation Clause. (Doc. 21 at
276–81.) Specifically, Morris alleges Dr. Keen’s testimony about Noah’s autopsy results,
based not on his own observations but rather on Dr. Zhang’s autopsy report (Claim Fifteen
(A)), and the testimony of all the medical examiners regarding toxicology results from
testing they did not conduct (Claim Fifteen (B)), violated the Confrontation Clause. Morris
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concedes the claims were not raised in state court, and Respondents contend the claims are
procedurally defaulted. (Doc. 27 at 169.) Morris first asserts that the default is excused
by the ineffective assistance of appellate counsel coupled with PCR counsel’s subsequent
failure to raise an IAAC claim under Martinez. (Doc. 21 at 276.) He abandons his reliance
on Martinez in his reply, and asserts that the ineffective assistance of appellate counsel
excuses the default and that he exhausted this IAAC claim. (Doc. 34 at 196) (citing Doc. 21
at 303, 307–09 (Claim Twenty-Two (B))).
Ineffective assistance of appellate counsel may be used as cause to excuse a
procedural default only where the particular ineffective assistance allegation was first
exhausted in state court as an independent constitutional claim. See Carpenter, 529 U.S.
at 453 (2000) (“an ineffective-assistance-of-counsel claim asserted as cause for the
procedural default of another claim can itself be procedurally defaulted”); Carrier, 477
U.S. at 489–90. Although Morris did not clearly assert a claim of appellate counsel
ineffectiveness in his PCR petition (see ROA 307 at 59–64) (alleging significant change in
the law pursuant to Rule 32.1(g)), the PCR court ruled there was no colorable claim of
ineffective assistance of appellate counsel:
The Supreme Court also would not have found error in allowing Dr. Keen to
opine as to the cause of death of victim Noah even though he did not conduct
the autopsy. The Court has repeatedly held that a testifying medical
examiner may, consistent with the Confrontation Clause, rely on information
in autopsy reports prepared by others as long as he forms his own
conclusions. State v. Joseph, 230 Ariz. 296, ¶8, 283 P.3d 27 (2012) (Dr.
Keen); State v. Dixon, 226 Ariz. 545, 553, ¶¶36-37, 250 P.3d 1174, 1182
(2011) (Dr. Keen); State v. Snelling, 225 Ariz. 182, 187 ¶ 21, 236 P.3d 409,
414 (2010); State v. Smith, 215 Ariz. 221, 229 ¶26, 159 P.3d 531, 539 (2007)
(Dr. Keen). See also Williams v. Illinois, __ U.S.__, 132 S. Ct. 2221, 2228
(2012) (“Out-of-court statements that are related by the expert solely for the
purpose of explaining the assumptions on which that opinion rests are not
offered for their truth and thus fall outside the scope of the Confrontation
Clause.”) (plurality opinion); State v. Gomez, 226 Ariz. 165, 169–70 ¶22,
244 P.3d 1163, 1167–68 (2010) (“[A] medical examiner may offer an expert
opinion based on review of reports and test results prepared by others, as long
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as the testifying expert does not simply act as a conduit for another non-
testifying expert’s opinion.” (internal quotation marks omitted)); cf. Ariz. R.
Evid. 703 (allowing testifying expert to rely on data not admitted into
evidence).
Here, Dr. Keen stated his opinion based on his review of Dr. Zhang’s report,
the photographs and other matters. Dr. Zhang’s report was not admitted into
evidence. Defense counsel cross-examined Dr. Keen about his opinion. In
Joseph, the Supreme Court also rejected the arguments defendant makes here
regarding Bullcoming v. New Mexico, __ U.S. __, 131 S. Ct. 2705 (2011),
and Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). [State v. Joseph,
230 Ariz. 296,] ¶¶9–11 [283 P.3d 27 (2012).] As in Joseph, and the earlier
cases, had appellate counsel raised this issue on appeal, the [Arizona]
Supreme Court would have found no error. The defendant has failed to show
a colorable claim of ineffective assistance of appellate counsel.
(ROA 354 at 10–11.)
In his petition for review, Morris again argued he was entitled to relief under Rule
32.1(g), asserting Bullcoming and Melendez-Diaz were significant changes in the law. (PR
7 at 42.) The Arizona Supreme Court denied the claim without comment. (PR 27.) The
Court finds that this is sufficient to exhaust his IAAC claim alleging appellate counsel
failed to argue Claim Fifteen (A) because Morris argued generally that the PCR court’s
ruling was error, and did not waive consideration of the IAAC claim. See Sandgathe, 314
F.3d at 378 (instructing that the Ylst presumption of exhaustion applies when the petitioner
argues in his petition for review, generally, that the trial court decision was in error and
does not indicate a waiver of the federal claim previously decided).
Because he raised the IAAC claim in his PCR proceedings, he satisfies the threshold
inquiry. See Carpenter, 529 U.S. at 452–53. He next must show that his appellate
counsel’s performance was ineffective under Strickland, 466 U.S. 668. See Visciotti, 862
F.3d at 769. To prevail on a claim of ineffective assistance of appellate counsel, a petitioner
must show that counsel’s appellate advocacy fell below an objective standard of
reasonableness and a reasonable probability that, but for counsel’s deficient performance,
the petitioner would have prevailed on appeal. Smith v. Robbins, 528 U.S. at 285–86.
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“[F]ailure to raise untenable issues on appeal does not fall below the Strickland standard.”
Turner, 281 F.3d at 872. Nor does appellate counsel have a constitutional duty to raise
every nonfrivolous issue requested by a petitioner. Miller v. Keeney, 882 F.2d 1428, 1434
n.10 (9th Cir. 1989) (citing Jones v. Barnes, 463 U.S. 745, 751–54 (1983)); see also Davila,
582 U.S. at 533 (“Declining to raise a claim on appeal . . . is not deficient performance
unless that claim was plainly stronger than those actually presented to the appellate
court.”). Here, as the Court explains below in addressing Claim Twenty-Two (B), the
underlying IAAC claim is meritless because appellate counsel did not perform
ineffectively. Accordingly, Morris has not shown cause to overcome the procedural default
of Claim Fifteen (A).
Morris did not raise an ineffective assistance of appellate counsel claim related to
claim Fifteen (B) in his PCR petition, nor did the PCR court sua sponte rule on the merits
of such a claim. (See ROA 307, 354.) Because the claim is unexhausted and would be
precluded if raised in a successive post-conviction petition, it is procedurally defaulted.
See Ariz. R. Crim. P. 32.2(b); 32.1(b)–(h). Morris argues the default is excused by
appellate counsel’s ineffectiveness. (Doc. 34 at 196–97.) Because Morris did not first
exhaust this IAAC claim in his PCR petition, however, he may not allege the ineffective
assistance of appellate counsel as cause to excuse the procedural default of this alleged trial
error claim. Accordingly, Morris has not shown cause to overcome the procedural default
of Claim Fifteen (B).
Claims Fifteen (A) and (B) are procedurally defaulted and barred from federal
review.
In Claim Twenty-Two (B), Morris contends that appellate counsel was ineffective
for failing to challenge alleged Confrontation Clause violations at the guilt phase of his
trial. (Doc. 21 at 307–309). As discussed above, this claim is comprised of two sub-claims:
Morris’s contention that appellate counsel failed to argue that his Confrontation Clause
rights were violated by: (1) Dr. Keen’s testimony based on Dr. Zhang’s autopsy report
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(Claim Twenty-Two (B)(1)), a claim exhausted by the PCR court’s ruling; and (2) the
testimony by all the medical examiners based on toxicology tests they did not personally
perform (Claim Twenty-Two (B)(2)), an unexhausted claim. Morris asserts that parsing
these allegations into two claims is inappropriately hyper-technical. (Doc. 34 at 220.)
Morris bases Claim Twenty-Two (B) on the two separate claims of Confrontation
Clause violations alleged in Claims Fifteen (A) and (B). (See Doc. 21 at 278–81.) In the
context of IAC claims, each unrelated allegation of counsel’s ineffectiveness is generally
considered a separate claim for purposes of exhaustion. Gulbrandson, 738 F.3d at 992
(citing Moormann, 426 F.3d at 1056). Because Morris failed to raise an IAAC claim based
on the medical examiner’s reliance on the toxicology reports in his PCR petition, that claim
is unexhausted and procedurally defaulted. Contrary to Morris’s assertion (Doc. 34 at 220),
the claim cannot be excused by PCR counsel’s ineffectiveness. See Davila, 582 U.S. at
525.
Both claims, moreover, are meritless for the reasons explained in Claim Five (B).
Until the Supreme Court’s recent decision in Jason Smith, the Arizona Supreme Court had
held that the Confrontation Clause did not apply “when an expert recites another analyst’s
statements as the basis for his opinion” because the prosecution was not using the out-of-
court statements for the truth of the matter asserted. 602 U.S. at 784 (citing Crawford, 541
U.S. at 60 n.9); see, e.g., Dixon, 226 Ariz. at 553, 250 P.3d at 1182. Appellate counsel did
not perform deficiently by failing to raise either of these claims – reasonable counsel
performing basic research at the time of Morris’s appeal could have concluded that forensic
testing results and autopsy results relied upon by medical examiners to form their opinion
were non-hearsay and the Confrontation Clause did not preclude such testimony. Claims
Twenty-Two (B)(1) and (2) are denied as procedurally defaulted. Alternatively, the claims,
considered separately (or as one instance of ineffectiveness) are meritless.
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O. Claim Sixteen
In his Reply, Morris withdraws Claim Sixteen, which alleged alternate jurors
improperly participated in deliberations during his trial, in violation of his Sixth and
Fourteenth Amendment rights. (See Doc. 21 at 281–83; Doc. 34 at 200.)
P. Claim Twenty-Two
Morris alleges his Sixth Amendment right to the effective assistance of counsel was
violated by his appellate counsel’s failure to raise meritorious claims on direct appeal.
(Doc. 21 at 303–14.) Morris concedes that several subclaims, Claims E through J, were
not exhausted in state court and asserts he can overcome the procedural default of these
claims by demonstrating the ineffective assistance of counsel under Martinez. (Id. at 303;
Doc. 34 at 218.) As explained in Section III.B above, however, Morris’s attempt to invoke
Martinez to excuse the default fails because these claims do not allege trial counsel’s
ineffectiveness. See Davila, 582 U.S. at 525, Martinez (Ernesto), 926 F.3d at 1225.
Therefore, the unexhausted allegations in Claim 22 (E) through (J) remain defaulted and
barred from federal review.
Claim Twenty-Two (A)
Morris alleges appellate counsel was ineffective for failing to challenge the
sufficiency of the evidence supporting the (F)(6) aggravating factor or that the jury abused
its discretion in sentencing him to death, as alleged in Claim Twelve of the habeas
petition.52 (Doc. 21 at 305–07.)
The Arizona Supreme Court reviewed Morris’s death sentence pursuant to A.R.S.
§ 13-703.05 and concluded that the jury did not abuse its discretion in finding that the State
proved the (F)(6) factor beyond a reasonable doubt because the State presented expert
52 To the extent Morris also argues that appellate counsel performed deficiently by
failing to challenge the constitutionality of Arizona’s abuse of discretion review, this claim
is procedurally defaulted and Morris has not demonstrated cause and prejudice to excuse
the default.
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evidence that strangulation victims remain conscious and experience pain for some period
of time and presented additional evidence that three of the victims struggled with Morris.
Morris, 215 Ariz. at 340–41, 160 P.3d at 219–20. Because the finding of cruelty alone was
sufficient to establish the (F)(6) factor, the court did not address whether the jury abused
its discretion in finding that the murders were also heinous or depraved. Id. at 341, 160
P.3d at 220.
In his postconviction petition, Morris asserted that appellate counsel was ineffective
for failing to argue that there was insufficient evidence of cruelty. (Doc. 307 at 7.) He
alleged he was prejudiced as a result, because in the absence of an appellate challenge the
court reviewed only whether the jury had abused its discretion in deciding that each murder
was especially cruel, not whether there was sufficient evidence of cruelty under Snelling,
225 Ariz. 182, 236 P.3d 409. (Id.)
The PCR court rejected this claim, finding:
Appellate counsel has no constitutional duty to raise every non-frivolous
issue requested by appellant. Jones v. Barnes, 463 U.S. 745, 751 (1983).
The Court finds that such a challenge would not have changed the outcome
of the appeal. First, as noted above, the Supreme Court specifically found
that the evidence in the record supported the jury’s finding of cruelty.
Morris, 215 Ariz. at ¶79. Second, the decision in State v. Snelling, 225 Ariz.
182, 188, 36 P.3d 409, 415 (2010), would not have changed this conclusion.
In Snelling, the Court found the record contained no evidence to support a
finding of cruelty. In so holding, the Court also compared the facts in this
case with Snelling:
Cf. State v. Morris, 215 Ariz. 324, 341 ¶79, 160 P.3d 203, 220
(2007) (finding cruelty when the state presented evidence of a
struggle in addition to expert testimony that strangulation
victims remain conscious and experience pain for some time).
Snelling, 225 Ariz. at ¶36.
(ROA 354 at 5.) Morris thereafter presented his IAAC claim to the Arizona Supreme
Court, which denied it without comment. (PR 7 at 21–22, PR 27.)
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Morris alleges the decision on direct appeal was an unreasonable determination of
clearly established federal law and based on an unreasonable determination of the facts, as
discussed supra in Claim Twelve, and that the PCR court’s deference to this decision was
therefore unreasonable. As discussed in Claim Twelve, however, any claim asserting
insufficiency of the evidence of the (F)(6) aggravating factor would have failed on the
merits. Because the underlying claim lacks merit, trial counsel was not ineffective for
failing to raise it. See Juan H., 408 F.3d at 1273; Green, 160 F.3d at 1037; James, 24 F.3d
at 27.
The Arizona Supreme Court’s decision denying relief on this claim was not contrary
to nor an unreasonable application of clearly established federal law, nor was it based on
an unreasonable determination of the facts. Claim Twenty-Two (A) is denied.
Claim Twenty-Two (D)
Morris alleges counsel failed to challenge the trial court’s instruction that incorrectly
informed the jury that Morris could be sentenced to life with the possibility of parole.
(Doc. 21 at 311.) This IAAC claim is unexhausted. (See ROA 307 at 3–56.)
In denying Morris’s request for a stay, the Court found Claims 3(B)(1) and 22(D)
technically exhausted through procedural default. (See Doc. 84 at 12, 18.) Specifically,
the Court found that “[i]f Morris were to return to state court and attempt to exhaust these
ineffective assistance claims, the claims would be found waived under Rule 32.2(a)
because they do not fall within an exception to preclusion.” (Doc. 84 at 12.) The Court
incorporates that decision here. Morris argues, however, that he is excused from the
exhaustion requirement because there is an absence of effective state corrective process.
(Doc. 34 at 222.) Raising this IAAC claim before the Supreme Court decided Lynch, he
alleges, would have been futile. (Id.)
The Court need not determine the procedural status of this claim because, for
reasons expressed in addressing the merits of Claim Three (B)(1), it is plainly meritless.
Cf. 28 U.S.C. § 2254(b)(2) (“ An application for a writ of habeas corpus may be denied on
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the merits, notwithstanding the failure of the applicant to exhaust the remedies available in
the courts of the State.”); see Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (“We do not
mean to suggest that the procedural-bar issue must invariably be resolved first; only that it
ordinarily should be.”). “Procedural bar issues are not infrequently more complex than the
merits issues . . . , so it may well make sense in some instances to proceed to the merits if
the result will be the same.” Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002).
Given the controlling Arizona law at the time of Morris’s appeal (see discussion in
Claim Three (B)(1)), reasonable appellate counsel could have concluded that Morris was
in fact parole or release eligible and there were no grounds for an appeal. See Turner, 281
F.3d at 872 (“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.”); 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.”). Claim
Twenty-Two (D) is denied.
Q. Constitutional Challenges to Arizona’s Death Penalty Scheme
Morris raises a number of challenges to his death sentence, Arizona’s death penalty
scheme, and capital punishment in general. Morris exhausted these claims in his Opening
Brief. (See DA at 59–66). The Arizona Supreme Court’s rejection of the claims, see
Morris, 215 Ariz. at 341–43, 160 P.3d at 220–22, was neither contrary to nor an
unreasonable application of clearly established federal law.53 Additionally, these claims
are all meritless.
53 Morris alleges several of these claims were raised in his direct appeal but not
adjudicated by the Arizona Supreme Court because they were summarily dismissed, and
that the limitations imposed on relief imposed by 28 U.S.C. § 2254(d) therefore do not
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Claim Twenty-One
Morris alleges Arizona’s capital sentencing scheme is unconstitutional because it
does not require the jury to find that the aggravating factors outweighed mitigating
circumstances beyond a reasonable doubt, and the trial court’s flawed instruction violated
Morris’s rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Doc. 21 at
285.) Respondents assert that the claim Morris raised on direct appeal (that Arizona’s
statute is unconstitutional) differs from the claim he is now raising in his habeas petition
(that instructional error occurred in his trial), and that this latter claim is unexhausted and
procedurally defaulted. While technically correct, this argument puts too fine a point on
Morris’s general assertion that the trial court instructed the jury in accordance with A.R.S.
§ 13-703(E) and that the jury instructions, like the statute, relieved the prosecutor of his
burden of proving beyond a reasonable doubt that the mitigation was not sufficiently
substantial to call for leniency, and relieved the jury of having to determine beyond a
reasonable doubt that death was the appropriate punishment.
Procedural status notwithstanding, the claim is meritless. The Supreme Court has
held that a capital sentencer “need not be instructed how to weigh any particular fact in the
capital sentencing decision.” Tuilaepa, 512 U.S. at 979–80; see Kansas v. Marsh, 548 U.S.
at 175 (“In aggregate, our precedents confer upon defendants the right to present sentencers
with information relevant to the sentencing decision and oblige sentencers to consider that
information in determining the appropriate sentence. The thrust of our mitigation
jurisprudence ends here.”); Franklin v. Lynaugh, 487 U.S. 164, 179 (1988) (“[W]e have
apply to the Court’s review of the claim. This is factually and legally incorrect. The court
addressed each claim, noted Morris conceded that the Court had previously rejected the
arguments, noted the cases in which it had previously denied each claim, and then affirmed
Morris’s conviction and sentences. See Morris, 215 Ariz. at 341–43, 160 P.3d at 220–22.
Additionally, a state court is presumed to have adjudicated a federal claim on the merits,
even if it gives no explanation for its decision. See Richter, 562 U.S. at 98–99; Johnson,
568 U.S. at 293.
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never held that a specific method for balancing mitigating and aggravating factors in a
capital sentencing proceeding is constitutionally required.”).
The cases cited by Morris, Ring, 536 U.S. 584, Apprendi v. New Jersey, 530 U.S.
466 (2000), and Hurst v. Florida, 577 U.S. 92 (2016), do not alter this analysis. First,
contrary to Morris’s argument (Doc. 21 at 301), Hurst does “not apply retroactively on
collateral review.” McKinney v. Arizona, 589 U.S. 139, 145 (2020); see Ybarra v. Filson,
869 F.3d 1016, 1032–33 (9th Cir. 2017).54 And even if Hurst did apply retroactively,
Morris would not be entitled to relief.
In Hurst the Court held that Florida’s capital sentencing scheme, in which a jury
rendered an advisory verdict while the judge made the ultimate factual determinations
necessary to sentence a defendant to death, violated Ring, 536 U.S. 584. Hurst, 577 U.S.
at 98, 102–03. The Court held that this procedure was invalid because it “does not require
the jury to make the critical findings necessary to impose the death penalty.” Id. The Court
did not hold that a jury is required to find beyond a reasonable doubt that the aggravating
factors outweigh the mitigating circumstances. See United States v. Tsarnaev, 968 F.3d
24, 88–89 (1st Cir. 2020) (Hurst “made no holding regarding [the] determination . . . that
the mitigators do not outweigh the aggravators”), reversed on other grounds, 595 U.S. 302
(2022).
In McKinney, 589 U.S. at 144, the Court reiterated that while “a jury must find the
aggravating circumstance that makes the defendant death eligible . . . , in a capital
sentencing proceeding just as in an ordinary sentencing proceeding, a jury (as opposed to
54 Morris cited Ybarra in his petition as a “but see” citation, without an explanatory
parenthetical, after the bald assertion that Hurst “applies retroactively on collateral
review.” (Doc. 21 at 288.) He failed to acknowledge that Ybarra directly held that “Hurst
does not apply retroactively to cases on collateral review.” 869 F.3d at 1032. Morris is
permitted to argue the case is wrong, or perhaps not binding, but it was disingenuous not
to acknowledge through use of a contra signal or an explanatory parenthetical that the
holding in Ybarra directly contradicted his position.
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a judge) is not constitutionally required to weigh the aggravating and mitigating
circumstances or to make the ultimate sentencing decision within the relevant sentencing
range.” Thus, “Ring and Hurst did not require jury weighing of aggravating and mitigating
circumstances.” Id. at 708. If jury weighing is not constitutionally required, there cannot
be a constitutionally-required standard for that weighing. Claim Twenty-One is denied.
Claim Twenty-Eight
Morris alleges Arizona’s capital-sentencing scheme limits the jury’s full
consideration of mitigation evidence by requiring that mitigating circumstances be proved
by a preponderance of the evidence, in violation of the Eighth and Fourteenth Amendments
to the United States Constitution. (Doc. 21 at 326–28.) This claim also lacks merit. In
Walton, the Supreme Court rejected the argument that “Arizona’s allocation of the burdens
of proof in a capital sentencing proceeding violates the Constitution.” 497 U.S. at 651.
Claim Twenty-Eight is denied.
Claim Twenty-Nine
Morris alleges that, because he was not indicted for a capital crime, and the
aggravating circumstances were not included in the indictment, he was not provided
sufficient notice of the alleged aggravating circumstances, nor was there a finding of
probable cause as required by the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Doc.
21 at 328–30.) Morris raised this claim on direct appeal (DA 29 at 59–60), and the Arizona
Supreme Court rejected it on the merits, citing McKaney v. Foreman, 209 Ariz. 268, 273,
100 P.3d 18, 23 (2004). The Arizona Supreme Court’s decision was not contrary to nor an
unreasonable application of clearly established federal law, nor was it based on an
unreasonable determination of the facts.
The Supreme Court has held that facts constituting the elements of an offense must
be charged in a federal indictment. See Jones v. United States, 526 U.S. 227, 251–52
(1999). But the Fifth Amendment Due Process Clause does not incorporate the same
requirement into state criminal prosecutions. See Branzburg v. Hayes, 408 U.S. 665, 688
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n.25 (1972) (“[I]ndictment by grand jury is not part of the due process of law guaranteed
to state criminal defendants by the Fourteenth Amendment.”) (citing Hurtado v. California,
110 U.S. 516, 538 (1884)); see also Gautt v. Lewis, 489 F.3d 993, 1003 n.10 (9th Cir.
2007). Because states are not required by the Constitution to empanel grand juries for
purposes of indictment, they are not required to specify aggravating factors in a grand jury
indictment.
Morris contends that Ring II, 536 U.S. at 609, and Apprendi, 530 U.S. at 477,
support his position. (Doc. 21 at 329–30.) But the Supreme Court did not address the issue
in either case, let alone hold that aggravating factors must be included in an indictment and
subjected to a probable cause determination. See Ring II, 536 U.S. at 597 n.4 (“[The
Fourteenth Amendment] has not been construed to include the Fifth Amendment right to
‘presentment or indictment of a Grand Jury.’”) (quoting Apprendi, 530 U.S. at 477 n.3);
see e.g., Goff v. State, 14 So.3d 625, 665 (Miss. 2009) (“We have held that Apprendi and
Ring address issues wholly distinct from the present one, and in fact do not address
indictments at all.).
The Arizona Supreme Court has expressly rejected the argument that Ring requires
that aggravating factors be alleged in an indictment and supported by probable cause.
McKaney, 209 Ariz. at 270, 100 P.3d at 20. Morris cites no clearly-established federal law
to the contrary, or otherwise calling McKaney’s reasoning into question. Claim Twenty-
Nine is denied.
Claim Thirty
Morris asserts the (F)(6) aggravating factor of “especially cruel, heinous, or
depraved,” as well as the jury instructions on the factor, are unconstitutionally vague and
violate the Eighth and Fourteenth Amendments. (Doc. 21 at 330–34.) Respondents
contend that Morris exhausted only the statutory challenge in his direct appeal, and never
argued that the jury instructions were unconstitutionally vague. (Doc. 27 at 209.)
Notwithstanding this claim’s procedural status, it is meritless.
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The United States Supreme Court and the Ninth Circuit have upheld Arizona’s death
penalty statute against allegations that particular aggravating factors, including the (F)(6)
factor, do not adequately narrow the sentencer’s discretion. See Jeffers, 497 U.S. at 774–
77; Walton, 497 U.S. at 652–56. In Walton the Supreme Court held that the “especially
heinous, cruel or depraved” aggravating circumstance was facially vague but the vagueness
was remedied by the Arizona Supreme Court’s clarification of the factor’s meaning. 497
U.S. at 654; see also Smith, 823 F.3d at 1294–95.
Morris argues that Walton no longer controls after Arizona switched to jury
sentencing in capital cases. (Doc. 21 at 332.) This is unpersuasive. “There is no clearly
established federal law holding that jury instructions based on the Arizona Supreme
Court’s narrowing construction are inadequate.” Dixon, 2016 WL 1045355, at *45.
As discussed in Claim Six (B)(2) above, the jury was specifically instructed on the
factors that could be used to establish the (F)(6) circumstance. (See RT 7/12/05 at 84–87.)
The trial court instructed the jury in detail as to what would support a finding that the
murders were “especially heinous, cruel or depraved” and gave substance to the terms
“cruel” and “heinous or depraved,” including instructing the jury that for a murder to be
“especially heinous, cruel, or depraved,” it must be “above the norm of other first degree
murders” (see id.), in accordance with Arizona case law narrowing and defining those
terms. See Cromwell, 211 Ariz. at 189, 119 P.3d at 456; Anderson, 210 Ariz. at 352, 111
P.3d at 394. Morris cites no clearly-established federal law holding that the phrase “above
the norm of other first degree murders” must be separately defined, and that phrase is not
facially vague. (See Doc. 21 at 333–34.) The instruction was therefore sufficient to narrow
and define the factor for the jurors. See Donald, 575 U.S. at 317 (“Because none of our
cases confront ‘the specific question presented by this case,’ the state court’s decision could
not be ‘contrary to’ any holding from this Court.”).
Additionally, “irrespective of whether invalidation of the jury instructions in
Walton, Jeffers, and Richmond is ‘the logical next step’ after Ring, the Court ‘ha[s] not yet
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taken that step and there are reasonable arguments on both sides—which is all [Arizona]
needs to prevail in this AEDPA case.’” Smith, 823 F.3d at 1295 (quoting White, 572 U.S.
at 426). Claim Thirty is denied.
Claim Thirty-One
Morris alleges that admission of inflammatory and irrelevant victim-impact
evidence resulted in a fundamental violation of his Eighth and Fourteenth Amendment
rights, and to the extent A.R.S. §§ 13-752(R) and 13-4426(A) authorized such statements,
they are unconstitutional. (Doc. 21 at 335–39.) Morris raised this claim, in part, on direct
appeal.
In his Opening Brief, Morris alleged the admission of victim-impact evidence at the
penalty phase of the trial violated his Fifth, Sixth, Eighth, and Fourteenth Amendment
rights. (DA 29 at 61.) The Arizona Supreme Court’s decision denying relief on this claim,
see Morris, 215 Ariz. at 342, 160 P.3d at 221, was not contrary to nor an unreasonable
application of clearly established federal law, nor was it based on an unreasonable
determination of the facts. As discussed in Claim Three (C) above, the Eighth Amendment
erects no per se bar to the admission of victim impact evidence in the penalty phase of a
capital trial. See Payne, 501 U.S. at 827 (“[I]f the State chooses to permit the admission
of victim impact evidence and prosecutorial argument on that subject, the Eighth
Amendment erects no per se bar.”).
Morris’s allegation that A.R.S. §§ 13-752(R) and 13-4426(A), either on their face
or as applied, are “unconstitutionally broad” and inject irrelevant emotional sympathies
into the trial, thereby undermining the jury’s ability to fairly listen to and consider
mitigation evidence in violation of the Eighth Amendment (see Doc. 21 at 335–39), is
unexhausted and procedurally defaulted. Morris’s contention that the default is excused
by the ineffective assistance of appellate counsel combined with the ineffective assistance
of PCR counsel (Doc. 34 at 238) is unavailing. See Davila, 582 U.S. at 536.
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Moreover, for the reasons discussed in Claim Three (C), given the trial court’s
instructions, which jurors are presumed to have followed, Greer v. Miller, 483 U.S. 756,
766 n.8 (1987), even if the victim-impact evidence had been erroneously admitted, the error
was harmless. See Lockett, 711 F.3d at 1239–40 (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, 639 F.3d
at 997, 999 (admission of unconstitutional victim-impact statements “vividly and
emotionally” describing the crimes was harmless error where jury was properly
instructed); Bernard, 299 F.3d at 481 (“[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.”). Claim Thirty-One is denied.
Claim Thirty-Two
Morris alleges his jury was not instructed to consider mercy or sympathy as a
mitigating circumstance in violation of his Sixth, Eighth, and Fourteenth Amendment
rights. The trial court instructed the jury that mitigating circumstances are circumstances
“which in fairness and mercy may be considered as extenuating or reducing the degree of
the defendant’s culpability and the punishment to be imposed” (RT 07/14/05 at 3), and that
the jurors “are free to assign whatever value you deem appropriate to each and all of the
various factors you are permitted to consider.” (Id. at 8.) The court also instructed the
jurors that they were not to be governed or influenced by “mere sentiment, passion, or
prejudice.” (Id. at 9.)
Morris asserts that by failing to include mercy or sympathy as a mitigating factor
the jury should consider, the instructions violated Lockett and Eddings by preventing the
jury from considering all relevant mitigating evidence. (Doc. 27 at 232.) The Arizona
Supreme Court rejected the claim on the merits, citing its prior decision in State v. Carreon,
210 Ariz. 54, 70–71, 107 P.3d 900, 916–17 (2005). Morris, 215 Ariz. at 342, 160 P.3d at
221. In Carreon, the court found that “[t]he Constitution does not require . . . that a jury
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‘be able to dispense mercy on the basis of a sympathetic response to the defendant.’” 210
Ariz. at 70, 107 P.3d at 916 (quoting Johnson v. Texas, 509 U.S. 350, 371 (1993) and citing
Brown, 479 U.S. at 541–43). The court’s decision was neither contrary to nor an
unreasonable application of clearly established federal law.
In Saffle v. Parks, the Supreme Court held that an instruction directing the jury to
avoid any influence of sympathy when imposing a sentence did not violate Lockett and
Eddings by barring relevant mitigating evidence from being presented and considered
during a capital proceeding. 494 U.S. 484, 492–93 (1990). The Court explained that “[i]t
is no doubt constitutionally permissible, if not constitutionally required . . . for the State to
insist that ‘the individualized assessment of the appropriateness of the death penalty [be] a
moral inquiry into the culpability of the defendant, and not an emotional response to the
mitigating evidence.’” Id. (quoting Brown, 479 U.S. at 545). In Brown, 479 U.S. at 540,
and Victor, 511 U.S. at 13, the Court upheld instructions directing jurors “not to be swayed
by mere sentiment, sympathy, passion, prejudice, public opinion or [public] feeling.”
These instructions are similar to those given in Morris’s case.
The trial court properly defined mitigating circumstances, without placing any limits
on the jury’s assessment of the evidence. See Kansas v. Marsh, 548 U.S. 163, 175 (2006)
(“[O]ur precedents confer upon defendants the right to present sentencers with information
relevant to the sentencing decision and oblige sentencers to consider that information in
determining the appropriate sentence. The thrust of our mitigation jurisprudence ends
here.”). As this Court explained in Claim Three (B)(3) above, the jury instructions
permitted jurors to “accord mercy if they deem it appropriate, and withhold mercy if they
do not, which is what [the Supreme Court’s] case law is designed to achieve.” Carr, 577
U.S. at 119. Claim Thirty-Two is denied.
Claim Thirty-Three
Morris alleges capital punishment is categorically cruel and unusual, in violation of
the Eighth and Fourteenth Amendments. (Doc. 21 at 341–44.) The Arizona Supreme
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Court’s decision denying relief on this claim, see Morris, 215 Ariz. at 342, 160 P.3d at 221,
was not contrary to nor an unreasonable application of clearly established federal law, nor
was it based on an unreasonable determination of the facts.
Although Morris asserts, based on statistical research, that the death penalty is cruel
because it is unreliable and arbitrarily imposed, as well as unusual in the nationwide
scarcity of its application, (Doc. 21 at 342–43), there is no clearly established federal law
supporting this claim. See Gregg v. Georgia, 428 U.S. 153, 187 (1976). Claim Thirty-
Three is denied.
Claim Thirty-Four
Morris alleges the death penalty violates his rights under the Eighth and Fourteenth
Amendments because it is irrationally and arbitrarily imposed and serves no penological
purpose that is not adequately addressed by life imprisonment. (Doc. 21 at 344–46.) The
Arizona Supreme Court’s decision denying relief on this claim, see Morris, 215 Ariz. at
342, 160 P.3d at 221, was not contrary to nor an unreasonable application of clearly
established federal law, nor was it based on an unreasonable determination of the facts.
See Walton, 497 U.S. at 655–56; Smith v. Stewart, 140 F.3d 1263, 1272 (9th Cir. 1998); see
also Andriano v. Shinn, No. CV-16-01159-PHX-SRB, 2021 WL 184546, at *81 (D. Ariz.
Jan. 19, 2021); Roseberry v. Ryan, No. 15-CV-1507-PHX-NVW, 2019 WL 3556932 at
*37 (D. Ariz. August 5, 2019). Morris “simply fails to provide any clearly established
authority in support of his contention.” Roybal v. Davis, 148 F.Supp.3d 958, 1111 (S.D.
Cal. 2015). Claim Thirty-Four is denied.
Claim Thirty-Five
Morris alleges Arizona’s capital-sentencing scheme violates the Eighth and
Fourteenth Amendments because it affords the prosecutor unbridled discretion to seek the
death penalty. (Doc. 21 at 217–18.) The Arizona Supreme Court’s decision denying relief
on this claim, see Morris, 215 Ariz. at 342–43, 160 P.3d at 221–22, was not contrary to nor
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an unreasonable application of clearly established federal law, nor was it based on an
unreasonable determination of the facts.
The Supreme Court has held that prosecutors have wide discretion in making the
decision whether to seek the death penalty. See McCleskey, 481 U.S. at 296– 97; Gregg,
428 U.S. at 199 (holding that pre-sentencing decisions by actors in the criminal justice
system that may remove an accused from consideration for the death penalty are not
unconstitutional). In Smith, 140 F.3d at 1272, the Ninth Circuit rejected the argument that
Arizona’s death penalty statute is constitutionally infirm because “the prosecutor can
decide whether to seek the death penalty.” Although Morris attempts to distinguish Smith,
arguing the Arizona death-penalty statute in effect at the time Smith was decided has since
been expanded, he does not explain how this alters the court’s decision. Claim Thirty-Five
is denied.
Claim Thirty-Six
Morris alleges Arizona’s capital-sentencing scheme discriminates against indigent
young male defendants in violation of the Eighth and Fourteenth Amendments. (Doc. 21
at 347–48.) The Arizona Supreme Court’s decision denying relief on this claim, see
Morris, 215 Ariz. at 343, 160 P.3d at 222, was not contrary to nor an unreasonable
application of clearly established federal law, nor was it based on an unreasonable
determination of the facts.
Clearly established federal law holds that “a defendant who alleges an equal
protection violation has the burden of proving ‘the existence of purposeful discrimination’”
and must demonstrate that the purposeful discrimination “had a discriminatory effect” on
him. McCleskey, 481 U.S. at 292 (quoting Whitus v. Georgia, 385 U.S. 545, 550 (1967)).
Morris “must prove that the decisionmakers in his case acted with discriminatory purpose.”
Id.
Morris does not attempt to meet this burden. He offers no evidence specific to his
case that would support an inference that his sex, age, or economic status played a part in
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his prosecution or sentence. See Richmond v. Lewis, 948 F.2d 1473, 1490–91 (1990),
vacated on other grounds, 986 F.2d 1583 (9th Cir. 1993) (holding statistical evidence that
Arizona’s death penalty is discriminatorily imposed based on race, sex, and socioeconomic
background is insufficient to prove that decision-makers in petitioner’s case acted with
discriminatory purpose); see also McCleskey, 481 U.S. at 292–93 (use of statistics, without
regard to the facts of the particular case, insufficient to prove purposeful discrimination in
imposition of death penalty). Claim Thirty-Six is denied.
Claim Thirty-Seven
Morris alleges Arizona’s capital sentencing scheme violates the Fifth, Eighth, and
Fourteenth Amendments because it denies capital defendants the benefit of proportionality
review of their sentences. (Doc. 21 at 348–49.) The Arizona Supreme Court’s decision
denying relief on this claim, see Morris, 215 Ariz. at 343, 160 P.3d at 222, was not contrary
to nor an unreasonable application of clearly established federal law, nor was it based on
an unreasonable determination of the facts.
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, 395 F.3d at 1018–19. 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
Thirty-Seven is denied.
Claim Thirty-Eight
Morris alleges Arizona’s death penalty scheme is unconstitutional because it does
not sufficiently channel the sentencing jury’s discretion to impose death, in violation of the
Eighth and Fourteenth Amendments. (Doc. 21 at 350–54.) Specifically, he argues that the
scheme includes so many aggravating circumstances that virtually every defendant
convicted of first-degree murder is eligible for death and fails to set forth objective
standards to guide the jury in weighing the aggravating circumstances against the
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mitigating circumstances. (Id.) The Arizona Supreme Court’s decision denying relief on
this claim, see Morris, 215 Ariz. at 343, 160 P.3d at 222, was not contrary to or an
unreasonable application of clearly established federal law, nor was it based on an
unreasonable determination of the facts.
Arizona’s death penalty scheme allows only certain statutorily-defined aggravating
factors to be considered in determining eligibility for the death penalty. “The presence of
aggravating circumstances serves the purpose of limiting the class of death-eligible
defendants, and the Eighth Amendment does not require that these aggravating
circumstances be further refined or weighed by [the sentencer].” Blystone, 494 U.S. at
306–07. The Supreme Court and the Ninth Circuit have upheld Arizona’s death penalty
statute against allegations that its aggravating factors do not adequately narrow the
sentencer’s discretion. See Jeffers, 497 U.S. at 774–77; Walton, 497 U.S. at 649–56;
Woratzeck v. Stewart, 97 F.3d 329, 335 (9th Cir. 1996). Claim Thirty-Eight is denied.
Claim Thirty-Nine
Morris asserts that execution by lethal injection is cruel and unusual punishment
under the Eighth and Fourteenth Amendments. (Doc. 21 at 354–61.) The Arizona
Supreme Court’s decision denying relief on this claim, see Morris, 215 Ariz. at 343, 160
P.3d at 222, was not contrary to or an unreasonable application of clearly established
federal law, nor was it based on an unreasonable determination of the facts. The Supreme
Court “has never invalidated a State’s chosen procedure for carrying out a sentence of death
as the infliction of cruel and unusual punishment.” Baze v. Rees, 553 U.S. 35 (2008). Nor
has the Supreme Court or the Ninth Circuit held that Arizona’s lethal injection protocols
violate the Eighth Amendment. See Dickens v. Brewer, 631 F.3d 1139 (9th Cir. 2011).
Morris’s allegations in his habeas petition focus on Arizona’s lethal injection
protocols and history of executions. (Doc. 21 at 355–61.) Those protocols are no longer
in place. (Id. at 361) (citing Stipulated Settlement Agreement at 1, Wood v. Ryan, No.
2:14-cv-01447-NVW (D. Ariz. filed Dec. 19, 2016), ECF No. 152; Stipulated Settlement
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Agreement at 4, Wood v. Ryan, No. 2:14-cv-01447-NVW (D. Ariz. filed June 21, 2017);
Cf. Guardian News & Media LLC v. Ryan, No. CV-14-02363-PHX-GMS, 2017 WL
4180324, at *2 (D. Ariz. Sept. 21, 2017) (noting current execution protocol, set forth in
Department Order 710, provides that ADC will use either pentobarbital or sodium
pentothal as the execution drug). Morris may challenge the relevant protocol in a separate
civil rights action under 42 U.S.C. § 1983. See Hill v. McDonough, 547 U.S. 573, 579–80
(2006) (recognizing that a challenge to the State’ s execution method may be brought in a
§ 1983 action); Nance v. Ward, 597 U.S. 159, 169 (2022). Claim Thirty-Nine is denied.
Claim Forty
Morris asserts that Arizona’s capital sentencing scheme violates the Eighth and
Fourteenth Amendments because it requires a death sentence whenever one aggravating
circumstance and no mitigating circumstances are found with respect to an eligible
defendant. (Doc. 362–63.) The Arizona Supreme Court’s denial of this claim, see Morris,
215 Ariz. at 343, 160 P.3d at 222, was not contrary to or an unreasonable application of
clearly established federal law, nor was it based on an unreasonable determination of the
facts. The Supreme Court has rejected the contention that Arizona’ s death penalty statute
is impermissibly mandatory. See Walton, 497 U.S. at 651–52; Marsh, 548 U.S. at 173–74.
Claim Forty is denied.
R. Miscellaneous Claims
Morris’s remaining claims were not presented in state court.
Claim Forty-One
Morris alleges that Due Process requires this Court to re-evaluate his death sentence
in light of the significant changes to his person and circumstances in the twelve and a half
years since he was sentenced. (Doc. 21 at 363–66.) Morris contends this claim was not
ripe for review until now. Notwithstanding the procedural status of the claim, Morris is
not entitled to habeas relief on this claim.
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Morris cites State v. Watson, 129 Ariz. 60, 62, 628 P.2d 943, 945 (1981), and State
v. Richmond, 180 Ariz. 573, 580–81, 886 P.2d 1329, 1336–37 (1994), in support. (Doc. 25
at 199.) In these cases, the Arizona Supreme Court, in its independent review of death
sentences, found the defendants’ changed character to be significantly mitigating by
looking to evidence in the trial court record. Unlike the state supreme court on direct
appeal, a federal habeas court does not perform an independent review of a state
petitioner’s death sentence.
Morris fails to identify any Supreme Court case supporting his contention that due
process requires this Court to “re-evaluate” his death sentence based on his alleged
“successful[] incarcerat[ion]” or “low risk of violence” in prison. (Doc. 21 at 363–66.)
“[H]abeas review is available to check violations of federal laws when the error qualifies
as a ‘fundamental defect which inherently results in a complete miscarriage of justice [or]
an omission inconsistent with the rudimentary demands of fair procedure.’” Reed v.
Farley, 512 U.S. 339, 348 (1994) (quoting Hill v. United States, 368 U.S. 424, 428 (1962))
“Undoing a final state-court judgment” through habeas “is an extraordinary remedy,
reserved for only extreme malfunctions in the state criminal justice system.” Brown, 596
U.S. at 133 (quoting Chapman, 386 U.S. at 633–634) (cleaned up). Habeas relief can only
be granted on claims that a prisoner “is in custody in violation of the Constitution or laws
or treaties of the United States.” 28 U.S.C. § 2254(a). Morris does not allege in Claim
Forty-One that his sentence was obtained in violation of the United States Constitution or
“on the basis of some transgression of federal law binding on the state courts.” Middleton
v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456, U.S. 107, 119
(1982)). Claim Forty-One is denied.
Claim Forty-Four
Morris alleges he will be denied a fair clemency process in violation of the Eighth
and Fourteenth Amendments. (Doc. 21 at 254–56.) This claim is not cognizable on federal
habeas review. See 28 U.S.C. § 2254(a). Morris’s challenge to state clemency procedures
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and proceedings is not an attack on his detention and thus does not constitute a proper
ground for relief. See Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989) (per curiam);
see also Woratzeck v. Stewart, 118 F.3d 648, 653 (9th Cir. 1997) (per curiam) (explaining
that clemency claims are not cognizable under federal habeas law). Contrary to Morris’s
assertion (Doc. 34 at 255–56), the Supreme Court’s decision in Ohio Adult Parole
Authority v. Woodard, 523 U.S. 272 (1998), does not establish this clemency claim is
cognizable in habeas proceedings. Claim Forty-Four is denied.
Claim Forty-Five
Morris alleges it would violate his right to be free from cruel and unusual
punishment for the State of Arizona to execute him after he has spent over twelve years on
its death row. (Doc. 21 at 375–79.) This claim is meritless. “The Supreme Court has
never held that execution after a long tenure on death row is cruel and unusual punishment.”
Allen v. Ornoski, 435 F.3d 946, 958 (9th Cir. 2006); see Lackey v. Texas, 514 U.S. 1045
(1995) (mem.) (Stevens, J. & Breyer, J., discussing denial of certiorari and noting the claim
has not been addressed); Thompson v. McNeil , 556 U.S. 1114 (2009) (mem.) (Stevens, J.
& Breyer, J., dissenting from denial of certiorari; Thomas, J., concurring, discussing
Lackey issue); see also Knight v. Florida, 528 U.S. 990 (1999) (Thomas, J., concurring in
denial of certiorari); Smith v. Mahoney, 611 F.3d 978, 998 (9th Cir. 2010) (rejecting Lackey
claim as Teague-barred). Circuit courts have consistently held that prolonged incarceration
under a sentence of death does not violate the Eighth Amendment. See, e.g., Roger Murray,
882 F.3d at 798 (citing McKenzie v. Day, 57 F.3d 1493, 1493– 94 (9th Cir. 1995) (en
banc)).
Claim Forty-Six
Morris alleges the imposition of the death penalty on a person with organic brain
damage violates the Eighth and Fourteenth Amendments. (Doc. 21 at 379–84.) He
concedes this claim is unexhausted. His attempt to invoke Martinez to excuse the default
(see Doc. 34 at 20–22, 258) fails because this claim does not allege trial counsel’s
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ineffectiveness. Martinez (Ernesto), 926 F.3d at 1225; Pizzuto, 783 F.3d at 1177; Hunton,
732 F.3d at 1126–27. Claim Forty-Six is procedurally defaulted and barred from federal
review.
Claim Forty-Eight
Morris alleges that, pursuant to the Fifth, Sixth, Eighth, and Fourteenth
Amendments, he was entitled to the constitutionally effective assistance of counsel during
his state post-conviction proceedings. (Doc. 21 at 386–96.) He asserts this claim was not
raised in state court because there is no available state court corrective process. (Id. at
386.)
To the extent Morris alleges PCR counsel’s ineffectiveness as a freestanding claim,
the claim is not cognizable in federal habeas. See 28 U.S.C. § 2254(i) (“The ineffectiveness
or incompetence of counsel during Federal or State collateral postconviction proceedings
shall not be a ground for relief in a proceeding arising under section 2254.”) Additionally,
the Supreme Court “has repeatedly reaffirmed that there is no constitutional right to counsel
in state postconviction proceedings,” so there can be no cause of action for ineffective
assistance of post-conviction counsel. Ramirez, 596 U.S. at 386; Coleman, 501 U.S. at
752; Pennsylvania v. Finley, 481 U.S. 551, 553 (1987).
To the extent Morris alleges PCR counsel’s ineffectiveness as grounds for excusing
the procedural default of his unexhausted claims, the Court has addressed these allegations
directly in each of the claims where he specifically made this argument.
Claim Forty-Nine
Morris alleges his conviction and sentence must be vacated due to the cumulative
prejudicial effect of the errors in this case. (Doc. 21 at 396–98.) He did not raise this claim
in state court and, as discussed in Section III.B., the combined effect of PCR and appellate
counsel’s alleged ineffectiveness cannot excuse this claim. The claim is also meritless.
The United States Supreme Court has not specifically recognized the doctrine of
cumulative error as an independent basis for habeas relief. See Lorraine, 291 F.3d at 447
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(“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 at 1132 n.3 (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”); Hooks v. Workman, 689 F.3d 1148, 1194 n.24 (10th Cir. 2012) (“We
note that there is a split in the circuits on whether the need to conduct a cumulative-error
analysis is clearly established federal law under § 2254(d)(1).”).
The Ninth Circuit has held that in some cases, although no single trial error is
sufficiently prejudicial to warrant reversal, the cumulative effect of several errors may
nonetheless prejudice a defendant to such a degree that his conviction must be overturned.
See Mancuso, 292 F.3d at 957. Cumulative prejudice exists only where the aggregation of
errors undermines confidence in the verdict. Parle v. Runnels, 505 F.3d 922, 928 (9th Cir.
2007).
The Court has not identified any constitutional errors arising during Morris’s trial.
“If there are no errors, there is no need to consider their cumulative effect.” McGill, 16
F.4th at 685; see Boyde v. Brown, 404 F.3d 1159, 1176 (9th Cir. 2005); Morris v. Sec’y
Dep’t of Corr., 677 F.3d at 1132 & n.3. Claim Forty-Nine is denied.
IV. EVIDENTIARY DEVELOPMENT
Morris requests evidentiary development with respect to Claims One (A)–(C), One
(E), Two, Three (A)–(B), Four (A)–(B), Four (D), Five (B), Six (A), Nine, Thirteen, Fifteen
(B), Forty-One and Forty-Eight. (Doc. 43.) He also seeks discovery to support a showing
of cause and prejudice under Martinez to excuse the default of Claims One (D), Three (B),
Three (C), Four (A), Four (B), Four (D), Five (B), Five (D), Six (B), Nine, Ten, Thirteen,
Seventeen, Eighteen, Nineteen, Twenty, Twenty-Two (D)–(J), Twenty-Three, Twenty-
Four, Twenty-Five, Twenty-Six, Twenty-Seven, Forty-Two, Forty-Three, Forty-Six,
Forty-Seven, and Forty-Nine. (See Doc. 21, passim.) He seeks discovery, an evidentiary
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hearing, and an expansion of the record. See Rules 6, 7, and 8 of the Rules Governing
§ 2254 Cases, 28 U.S.C. foll. § 2254.
A. Claims Adjudicated on the Merits in State Court
Claims One (in part), Two, Three (A), and Six (A) were raised and denied on the
merits in state court. This Court’s review under § 2254(d) is confined to the record that
was before the state court that adjudicated the claim. Twyford, 596 U.S. at 819; Pinholster,
563 U.S. at 181; see also Gulbrandson, 738 F.3d at 993 & n.6. Having determined that the
state courts’ denials of these claims did not satisfy AEDPA’s deferential standard of
review, 28 U.S.C. § 2254(d), the Court is precluded from considering new evidence in
support of them. Stokley v. Ryan, 659 F.3d 802, 809 (9th Cir. 2011) (citing Pinholster, 563
U.S. at. 185); see Ellison v. Thornell, 721 F.Supp.3d 820, 895 (D. Ariz. 2024). Relying on
his unsuccessful efforts to seek an evidentiary hearing on several claims in state court,
Morris asserts “it is impossible to conclude that [he] was not diligent in developing his
claims in the state courts.” (Doc. 43 at 18.) But Morris’s diligence is irrelevant to the
request for evidentiary development unless, as discussed above, he first overcomes the
limitations of § 2254(d). See generally, Pinholster, 563 U.S. at 181. Because Marris has
not done so, there is no reason to hold an evidentiary hearing or expand the record and no
good cause exists to authorize discovery. See 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.”).
B. Procedurally Defaulted Claims
The remaining claims for which Morris seeks evidentiary development were not
presented in state court. Relying on Martinez, 566 U.S. at 14, Morris argues that
postconviction counsel’s failure to develop the record is not attributable to the petitioner.
(Doc. 43 at 23.) He also asserts that “the diligence requirement in § 2254(e)(2) does not
apply to Martinez issues” and therefore evidentiary development is available “to help
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demonstrate cause and prejudice to overcome the default of several claims.” (Id. at 23.)
As discussed above, however, Ramirez forecloses these arguments.
In Ramirez, the Supreme Court “considered two specific issues concerning the
proper construction of § 2254(e)(2).” McLaughlin v. Oliver, 95 F.4th 1239, 1248 (9th Cir.),
cert. denied, 145 S. Ct. 598 (2024). First, the Court “addressed what counts as a ‘fail[ure]
to develop the factual basis of a claim in State court,’ so as to trigger the application of
§ 2254(e)(2)’s restrictions.” Id. The Court held that a petitioner “fails” to develop the state
court record within the meaning of § 2254(e)(2) when he or his state post-conviction
counsel is “at fault for the undeveloped record in state court.” 5 96 U.S. at 382 (cleaned
up). The Court explained that:
[A] prisoner bears the risk in federal habeas for all attorney errors made in
the course of the representation, unless counsel provides constitutionally
ineffective assistance. And, because there is no constitutional right to
counsel in state postconviction proceedings, a prisoner ordinarily must bear
responsibility for all attorney errors during those proceedings. Among those
errors, a state prisoner is responsible for counsel’s negligent failure to
develop the state postconviction record.
Id. 382–83 (cleaned up).
The Court also “reaffirmed that the [§ 2254(d)(2)’s] restrictions also apply ‘when a
prisoner seeks relief based on new evidence without an evidentiary hearing.’” McLaughlin,
95 F.4th at 1248 (quoting Ramirez, 596 U.S. at 389). Therefore, even if a federal habeas
court “admits or reviews new evidence” for some other purpose, such as determining
whether the Martinez exception applies, the court “may not consider that evidence on the
merits of a negligent prisoner’s defaulted claim unless the exceptions in § 2254(e)(2) are
satisfied.” Id. (quoting Ramirez, 596 U.S. at 389).
Morris has not satisfied the requirements of 2254(e)(2). He has not shown that the
claims for which he seeks evidentiary development rely on (1) a new and previously
unavailable rule of constitutional law made retroactively applicable by the Supreme Court,
or (2) “a factual predicate that could not have been previously discovered through the
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exercise of due diligence.” 28 U.S.C. §§ 2254(e)(2)(A)(i), (ii). With the exception of the
new evidence supporting Claims One (as it relates to the prosecutor’s “pattern and practice
of misconduct”), and Forty-One,55 the evidence Morris seeks to develop existed at the time
of the state court proceedings, so there is no new factual predicate under § 2254(e)(2). See
Lee, 108 F.4th at 1161–62; Speer, 2023 WL 2503733, at *88 (“The claims for which he
seeks evidentiary development do not . . . rely on a factual predicate that could not have
been discovered previously through due diligence.”). The evidence Morris seeks to
develop, consisting largely of additional information from his defense team and from
family members, existed at the time of the state court proceedings, so there is no new
factual predicate under § 2254(e)(2). Morris is not entitled to evidentiary development.56
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
55 As discussed above, evidence of prosecutorial misconduct occurring after
Morris’s trial or in other cases is irrelevant to the Court’s resolution of Claim One.
Additionally, the Court resolved Claim Forty-One as a purely legal question, requiring no
further evidentiary development. See Beardslee, 358 F.3d at 585; see Hendricks, 974 F.2d
at 1103.
56 The Court notes that Morris, in his request for evidentiary development, seeks a
subpoena duces tecum to his first PCR counsel, Nicole Farnum, for her complete attorney
file. (Doc. 43 at 55.) For the reasons explained above, the Court denies Morris’s request
for further evidentiary development of his claims, including the requested subpoena. To
the extent Morris contends the Arizona Rules of Criminal Procedure and the ABA
Guidelines mandate Farnum release her complete file, this Court previously ordered
counsel, prior to the case management conference, to obtain and complete review of
Morris’s prior counsel’s files, and noted that the Court would not assist directly in obtaining
these materials “[a]bsent a motion detailing significant delays, problems or obstacles
encountered in obtaining” these files. (Doc. 5 at 2.) At no time during habeas counsel’s
representation of Morris did his counsel file a separate motion requesting these files.
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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).
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, 529 U.S. at
484 (quoting Barefoot, 463 U.S. at 893 & n.4). 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
13, alleging Morris’s right to due process was violated when the jury was incorrectly
instructed that if given a life sentence, he could be eligible for parole. (See Doc. 84)
(denying Claim 13).
CONCLUSION
The Court has considered Morris’s claims and determined that none establish that
he is entitled to habeas relief.
IT IS ORDERED:
1. Morris’s Petition for Writ of Habeas Corpus (Doc. 21) is denied. The Clerk of
Court shall enter judgment accordingly.
2. Morris’s request for evidentiary development (Doc. 43) is denied.
3. A certificate of appealability with respect to Claim 13 is granted.
4. The Clerk of Court shall forward a courtesy copy of this Order to the Clerk of
the Arizona Supreme Court, 1501 W. Washington, Phoenix, AZ 85007-3329.
Dated this 8th day of December, 2025.
Case 2:17-cv-00926-DGC Document 95 Filed 12/08/25 Page 253 of 253