Richard Greenway v. Charles Ryan , 856 F.3d 676 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD HARLEY GREENWAY, No. 14-15309
Petitioner-Appellant,
D.C. No.
v. 4:98-cv-00025-RCC
CHARLES L. RYAN, Director of
Arizona Department of OPINION
Corrections,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, Chief District Judge, Presiding
Argued and Submitted October 28, 2015
Deferred January 25, 2016
Resubmitted March 27, 2017
San Francisco, California
Filed May 11, 2017
Before: Mary M. Schroeder, Johnnie B. Rawlinson,
and Carlos T. Bea, Circuit Judges.
Opinion by Judge Schroeder;
Concurrence by Judge Bea
2 GREENWAY V. RYAN
SUMMARY*
Habeas Corpus/Death Penalty
The panel affirmed the district court’s judgment on
remand denying Arizona state prisoner Richard Greenway’s
habeas corpus petition challenging his conviction and death
sentence.
The panel wrote that because the determination does not
affect the scope of the issues before it in this appeal, it need
not consider Greenway’s argument that the district court erred
in determining that some claims were outside the scope of
this court’s remand.
The panel held that neither of Greenway’s certified claims
of ineffective assistance of counsel has merit. As to his claim
that trial counsel failed to present an overall defense theory,
the panel held that ineffectiveness has not been shown. As to
his claim that trial counsel should have explored the
possibility of a mental incapacity defense of impulsivity in
order to negate premeditation, the panel concluded that this
Christensen defense would have been counterproductive.
The panel also deemed meritless Greenway’s claim – as
to which the panel asked for supplemental briefing – that trial
counsel was ineffective during voir dire in failing to discover
that a juror had been the victim of a violent crime that would
have disqualified that juror.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GREENWAY V. RYAN 3
The panel denied a certificate of appealability as to all
other claims.
Concurring, Judge Bea would find that much of
Greenway’s ineffective-assistance claim based on trial
counsel’s failure to challenge and remove a juror was not
fairly – or at all – presented in any state court proceeding and
is therefore procedurally barred.
COUNSEL
Robin C. Konrad (argued) and Therese M. Day, Assistant
Federal Public Defenders; Jon M. Sands, Federal Public
Defender; Office of the Federal Public Defender, Phoenix,
Arizona; for Petitioner-Appellant.
Jeffrey Sparks (argued) and Laura P. Chiasson, Assistant
Attorneys General; Jeffrey A. Zick and Lacey Stover Gard,
Chief Counsel; Mark Brnovich, Attorney General; Office of
the Attorney General, Tucson, Arizona; for Respondent-
Appellee.
4 GREENWAY V. RYAN
OPINION
SCHROEDER, Circuit Judge:
Richard Greenway is an Arizona state prisoner. A jury
convicted him of the brutal 1988 murders of a mother and her
teenage daughter during a burglary in Tucson, Arizona. He
was tried and convicted of burglary, armed robbery, theft by
control, arson of an unoccupied structure, as well as two
counts of murder in the first degree, and sentenced to death in
1989. Following his appeal and state court post-conviction
proceedings, the district court denied his 28 U.S.C. § 2254petition.
We heard his first federal appeal in 2011. Greenway v.
Schriro, 653 F.3d 790 (9th Cir. 2011). Our decision affirmed
the district court’s denial of Greenway’s claims of ineffective
assistance at sentencing, but remanded for the district court to
consider on the merits the claims of ineffective assistance at
trial and on direct appeal. Id. at 793. The district court has
now done so and has denied them. Greenway seeks review
in this appeal.
The district court spent a good deal of time attempting to
determine what claims were within the scope of our remand,
because Greenway made additional contentions. Although
the district court found that many of the claims were not
within the scope of the remand, it concluded that an
intervening Supreme Court decision required consideration of
some of the ineffectiveness claims in any event. See
Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012). We do not
need to consider Greenway’s argument that the district court
erred in determining that some claims were outside the scope
GREENWAY V. RYAN 5
of our remand, however, since the determination does not
affect the scope of the issues before us in this appeal.
The district court granted a certificate of appealability
regarding two claims of ineffectiveness. Both relate to trial
counsel’s alleged failure to present defenses. Neither has
merit.
Greenway claims trial counsel failed adequately to
present an overall defense theory. Defense counsel at trial
argued that the evidence showed only that Greenway was
involved in destroying the stolen property after the murders
had occurred. This theory was consistent with the physical
evidence. No viable alternative theory appears in the record,
and Greenway does not suggest one. Ineffectiveness has not
been shown.
The district court also certified the issue of whether trial
counsel should have explored the possibility of a mental
incapacity defense of impulsivity, as recognized in Arizona,
in order to negate premeditation. See State v. Christensen,
628 P.2d 580, 583–84 (Ariz. 1981). We conclude the
suggested defense would have been counterproductive, as it
would have placed Greenway as a principal in the murders,
and would likely not have overcome the strong evidence of
premeditation in any event.
This court additionally asked for supplemental briefing on
Greenway’s claim that trial counsel was ineffective during
voir dire in failing to discover that a juror had been the victim
of a violent crime that would have disqualified that juror. We
conclude that this claim is also without merit. We deny a
certificate of appealability as to all other claims.
6 GREENWAY V. RYAN
BACKGROUND
The facts relating to the nature of the crime and the
procedural history are set forth fully in our prior opinion. See
Greenway, 653 F.3d at 794. We summarize here briefly.
Police found the bodies of Lili Champagne and her
daughter, Mindy Peters, in their home; each had been shot
twice. Evidence suggested that the two had been killed in the
course of a robbery. Following a news bulletin asking for
information regarding the victims, Greenway’s sister notified
homicide detectives that Greenway knew something about the
incident. Detectives picked up Greenway and his co-
defendant, Chris Lincoln, for questioning. Lincoln confessed
to participating in the killings and implicated Greenway.
Greenway and Lincoln were then both arrested and charged
with several counts, including murder.
Before trial, Greenway was placed in a cell with Anthony
Schmanski. Schmanski, according to his trial testimony,
asked Greenway why he was in jail, and Greenway answered,
“Well, I just blew two people away” because “they had seen
[my] face.” Further investigation revealed Greenway had
attempted to sell the victims’ car stereo to Brian Mize,
Greenway’s co-worker. According to Mize’s trial testimony,
Greenway told Mize that he went to the victims’ house and,
after taking “some stuff,” shot the victims. Greenway also
told Mize that, after he shot the older lady, “her body rolled
over and blood gushed out of her head.” See State v.
Greenway, 823 P.2d 22, 26 (Ariz. 1991).
There was also evidence that Greenway knew the victims.
He had been to a party with Mindy in late 1987. Greenway
GREENWAY V. RYAN 7
met Lili shortly thereafter when Greenway went to their
house to return Mindy’s wallet.
Prior to trial, Greenway’s trial counsel had submitted
proposed voir dire questions to the court, including: “Have
any of you ever been the victim of a crime or testified in a
criminal case?” and “Has anyone on the panel ever been the
victim of a sex related crime?” During voir dire, the trial
court did not ask these questions as proposed. Instead, the
trial court asked: “Have any of you ever been a witness in a
criminal case? Ever come to Court and testified in a criminal
case?” The court also asked whether any juror had “ever
been a witness to a criminal act where the police came out
and they took your statement.” Juror Virginia Coker
remained silent, indicating negative responses to the
questions. The next day, Coker approached the bench and
disclosed to the judge that she had called the police regarding
a domestic violence incident, but she did not disclose any
other occasion when she had been a witness or given a
statement to the police. Before the conclusion of voir dire,
the court asked the attorneys whether there were any specific
questions that they thought the court should ask. Greenway’s
counsel did not ask for his questions as originally proposed.
Juror Coker was empaneled on Greenway’s jury.
Greenway’s trial lasted only three days, and the jury
returned a guilty verdict on all counts the following day. In
accordance with Arizona law at the time, the trial judge made
the life or death sentencing decision after an aggravation-
mitigation hearing. The judge sentenced Greenway to death.
In 1994, five years after trial, Coker signed an affidavit
stating that, in addition to the domestic violence incident, she
had been the victim of a violent crime—a home invasion and
8 GREENWAY V. RYAN
sexual assault—seven years prior to serving on Greenway’s
jury. She also said that she had testified against her attacker
at his trial.
DISCUSSION
Because Greenway filed his petition for a writ of habeas
corpus after April 24, 1996, the Antiterrorism and Effective
Death Penalty Act (“AEDPA”) applies. Lindh v. Murphy,
521 U.S. 320, 327 (1997). Under AEDPA, we may disturb a
state court’s rulings only if they were “contrary to” or
“involved an unreasonable application of” clearly established
federal law as determined by the United States Supreme
Court. 28 U.S.C. § 2254(d)(1). In this case, the state court
did not rule on the merits of the claims. See Greenway,
653 F.3d at 800. The district court therefore correctly
considered the claims de novo. On appeal, we review de
novo the district court’s denial of Greenway’s habeas
petition. See Lopez v. Schriro, 491 F.3d 1029, 1036 (9th Cir.
2007).
To prevail on a claim of ineffective assistance of counsel,
Greenway must show that counsel’s performance was both
inadequate and that the inadequate performance prejudiced
the defense. Strickland v. Washington, 466 U.S. 668, 687–88
(1984). The inquiry under Strickland is “highly deferential,”
and “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.” Id. at 689.
GREENWAY V. RYAN 9
A. Ineffectiveness During Voir Dire
Greenway did not raise an ineffective assistance claim
relating to juror Coker in his state court post-conviction
proceedings or in his original federal habeas petition. He did
raise it before the district court on remand and we requested
briefing on the merits in this appeal. Although the claim is
unexhausted, we summarily discuss the merits.
The issue we must determine is whether counsel was
ineffective during voir dire in not bringing forth the prior
history of juror Coker. The answer must be in the negative.
Counsel was not clairvoyant and had no reason to believe the
prospective juror was withholding information. It is true that
counsel requested the court to ask questions that, if the juror
had decided to answer, might have put everyone on notice
that the prospective juror had been a victim of a violent crime
in her home. The judge did not ask the questions in precisely
the requested form, however, and the juror answered the
questions as posed by the judge. She revealed a domestic
violence incident, but not her own sexual assault during a
home invasion. Counsel had no reason to believe that there
was anything more to disclose beyond the domestic violence
incident she had described, nor are we persuaded that had
Coker been asked the question as requested, she would have
disclosed the sexual assault, and thereby been disqualified.
Greenway’s claim is therefore far too speculative for a
court to conclude that counsel was ineffective during voir
dire. Accordingly, after reviewing the requested
supplemental briefing from the parties, we find no basis for
disturbing the district court’s dismissal of the claim.
10 GREENWAY V. RYAN
B. Ineffectiveness with Respect to the Investigation and
Defense Theory
The state trial was brief, with high stakes, and in both
state court and this court, Greenway faults counsel for failing
to conduct a deeper and broader investigation, to present
additional witnesses, and to present a cohesive defense
theory. Yet, there is not now, nor has there ever been any
suggestion of what that further investigation could have
yielded in terms of evidence that would have changed the
result of the trial.
The only available witness Greenway now argues should
have been called was Schmanski’s landlady who, he
contends, would have testified that Schmanski was an
untrustworthy drunk. The jury, however, knew that
Schmanski was an alcoholic. In closing argument, the
prosecutor conceded, “Mr. Schmanski has a drinking problem
[and] is an alcoholic.” Defense counsel, in closing argument,
emphasized that Schmanski was not only an alcoholic, but
also was receiving psychological treatment and wanted to cut
a deal. In short, Schmanski’s landlady would have added
little to what the jury already knew. Even if the jury had
heard from Schmanski’s landlady, that Schmanski was a
drunk whose word could not be trusted, there is no reasonable
probability of a different result at trial.
There was another potential witness, named Darrin Saige,
who could not be located at the time of trial. Greenway now
raises the possibility that Saige might have provided
testimony to suggest that Greenway had only helped to
destroy the evidence and was not at the scene of the murders.
The problem is that we have no affidavit from Saige, or
anyone else, to that effect.
GREENWAY V. RYAN 11
The only indication in the record that Saige may have had
any relevant information is in the form of notes from an
investigator. The notes do not suggest that Saige could have
provided material, admissible, exculpatory evidence. The
notes indicate that Lincoln told Saige three different versions
of the events in this case. In two versions, Lincoln implicated
Greenway in the burglary and murders. In one version,
Lincoln said that Greenway only helped to dispose of the
property. According to Greenway, trial counsel should have
called Saige to testify as to this third version of events, which
Saige would have asserted was the truthful version. We are
asked to assume that the jury would have credited the
exculpatory version, rather than the other versions, which
inculpated Greenway. There is no basis for such an
assumption. Because Saige’s testimony could have been
more harmful than helpful, counsel was not ineffective in
failing to locate Saige or present his testimony at trial.
In light of the prosecution’s case, Greenway’s counsel
was not deficient in his presentation of the defense theory.
The prosecutor presented evidence tying Greenway to the
crimes: Greenway had tried to sell the stolen stereo
equipment to his co-worker; Greenway’s fingerprints were on
the door of the stolen Porsche and the stock of the murder
weapon; and police found the keys to the Porsche in
Greenway’s trailer. The prosecutor established that
Greenway knew the victims and where they lived, and had
been seen driving the victims’ Porsche. The prosecutor also
presented two witnesses, Schmanski and Mize, who testified
that Greenway had admitted to committing the murders.
At trial, Greenway’s counsel argued that the evidence did
not put Greenway at the scene of the murders. During
opening statements, defense counsel emphasized to the jury
12 GREENWAY V. RYAN
that Greenway’s fingerprint simply showed “that at some
point in time Mr. Greenway may have handled that rifle.” In
closing argument, defense counsel emphasized that the
evidence showed only that Greenway participated in
disposing of the stolen property. Counsel further pointed out
during closing that although Greenway’s fingerprints were
found on the stock of the gun, they were not found on the
trigger. In addition, Greenway’s fingerprints were not found
at the murder scene. Defense counsel also attempted to
discredit the testimony of the prosecution’s witnesses by
attacking their credibility. The theory of defense that counsel
presented at trial was reasonable, given the evidence
implicating Greenway in the crimes. Greenway’s ineffective
assistance of counsel claim with respect to the theory of
defense therefore lacks merit.
C. Ineffectiveness in Failing to Pursue a Christensen
Defense
Greenway argues defense counsel should have mounted
a defense that Greenway was incapable of premeditation. In
Arizona, a defendant charged with first-degree murder may
seek to negate premeditation by presenting evidence of his
impulsive and reflexive, rather than reflective, nature, from
which the jury may infer that the defendant acted in
accordance with his nature at the time of the crime.
Christensen, 628 P.2d at 583 (“The establishment of the
character trait of acting without reflection tends to establish
that appellant acted impulsively. From such a fact, the jury
could have concluded that he did not premeditate the
homicide.”). We recognized the defense in Vickers v.
Ricketts, 798 F.2d 369 (9th Cir. 1986), where we said, “The
Arizona Supreme Court has held that the tendency to act on
GREENWAY V. RYAN 13
impulse is probative of an absence of premeditation.” Id. at
373.
In this case, however, a Christensen defense would have
been counterproductive. Had counsel argued that Greenway
acted impulsively, counsel would have placed Greenway at
the scene of the crimes and negated the defense that he had
not participated in the murders, a defense consistent with the
physical evidence.
Moreover, evidence of an impulsive character trait is
relevant only to rebut the showing of premeditation required
for first-degree murder. A Christensen defense therefore
would have had no effect on the charge of felony murder,
which does not require premeditation, and is also punishable
by death in Arizona. See Tison v. Arizona, 481 U.S. 137, 154
(1987); State v. Woratzeck, 657 P.2d 865, 868 (Ariz. 1982).
A Christensen defense had little likelihood of success in
any event, since the evidence of premeditation was
substantial. The evidence showed planning and reflection.
The murder weapon required manual reloading of each bullet.
The two victims were each shot twice. One was shot in the
forehead through a pillow. There was no sign of a struggle at
the crime scene. The shell casings were removed from the
home. Greenway’s co-worker testified that Greenway
admitted he wore surgical gloves during the crimes. A
Christensen defense would not likely have overcome such
strong evidence of premeditation. For all these reasons,
Greenway’s claim that counsel was ineffective in failing to
pursue a Christensen defense lacks merit.
14 GREENWAY V. RYAN
CONCLUSION
The district court did not err in denying Greenway’s
claims of ineffective assistance of counsel.
The judgment of the district court is AFFIRMED.
BEA, Circuit Judge, concurring:
I concur in full in Judge Schroeder’s opinion.
Nevertheless, I write separately because I would find that
much of Greenway’s ineffective assistance of counsel claim
based on trial counsel’s failure to challenge and remove a
biased juror was not fairly—or at all—presented in any state
court proceeding, and is therefore procedurally barred by
Greenway’s failure to exhaust his state court remedies.
Furthermore, that waiver is not excused under the very
narrow exception recognized in Martinez v. Ryan, 132 S. Ct.
1309, 1320 (2012) (holding that a defendant’s failure to raise
a claim of ineffectiveness as to trial counsel in state court
post-conviction proceedings may be excused where the
defendant’s counsel in the “initial-review collateral
proceedings” was himself ineffective). Our review, as a
federal habeas court, is therefore limited to those arguments
that were properly presented to the Arizona Superior Court.
As detailed in the Court’s opinion, Greenway was
sentenced to death after a jury found him guilty of murder,
burglary, armed robbery, theft by control, and arson. See
State v. Greenway, 823 P.2d 22, 26 (Ariz. 1991). On direct
appeal, Greenway challenged the judge’s imposition of the
death penalty and alleged a number of counts of ineffective
GREENWAY V. RYAN 15
assistance of counsel (“IAC”) during the sentencing
proceedings. These claims were all rejected on their merits.
Id. at 40.
Greenway later discovered that one of the members of his
jury, Virginia Coker (“Juror Coker”), had been the victim of
a home break-in and sexual assault by knife point in the early
1980s. See State v. Hauss, 142 Ariz. 159, 160, 160–61, 166
(Ct. App. 1984). In fact, Juror Coker had testified against her
assailant at his trial. Juror Coker failed to disclose this
information during voir dire in Greenway’s case, despite clear
questions from the trial court judge as to whether any venire
member had ever “been a witness” or “come to Court and
testified in a criminal case?” In 1994, approximately five
years after Greenway’s trial, Juror Coker signed an affidavit
admitting that she had failed to disclose her status as the
victim of a violent crime during voir dire (the “Affidavit”).1
In August 1992, Greenway commenced collateral
proceedings for post-conviction relief in Arizona Superior
Court. These proceedings continued into 1996,2 yet at no
1
Though the record is not entirely clear, it appears that it was
Greenway’s counsel who discovered this information and obtained the
Affidavit from Coker in December 1994, meaning that Greenway had
access to, and was aware of, the Affidavit as of December 1994. See
infra, n.2.
2
We previously summarized the timeline of Greenway’s post-
conviction proceedings as follows:
Greenway filed his pro se preliminary petition for post-
conviction relief under Rule 32 of the Arizona Rules of
Criminal Procedure (“Rule 32 petition”) in state court
in August 1992. Judge Scholl appointed counsel and
ordered counsel to file an amended petition by February
16 GREENWAY V. RYAN
point did Greenway raise a claim of IAC based on Coker’s
falsities in his petition for post-conviction relief. Sometime
after filing his initial petition, Greenway acquired new
counsel, Carla Ryan (“Ryan”). In August 1996, Ryan filed an
Addendum to Greenway’s petition for post-conviction relief
(the “Addendum”) to state the factual bases for Greenway’s
new claims of IAC at trial and on direct appeal. The
Addendum lists, largely in bullet-point form, the dozens of
ways in which trial and direct appeal counsel were allegedly
ineffective. Both before and at the time she filed the
Addendum, Ryan had access to Coker’s 1994 Affidavit, yet
Ryan failed to raise any IAC claim related to Juror Coker or
juror bias in the Addendum.3
1, 1993. Counsel then filed a short, untimely petition
raising only one issue of ineffective assistance of
counsel at sentencing, and Greenway asked for a
change of counsel that his attorney did not oppose. No
further pleadings or proof were entered by counsel
pending the change of counsel ruling. The trial judge,
however, in January 1994, summarily denied the post-
conviction petition in a minute order, without ruling on
the request for change of counsel. The trial court
subsequently granted Greenway's motion to proceed in
propria persona and allowed him to file a motion for
reconsideration. . . . [¶]
The case was reassigned to a different judge in January
1996. Greenway then filed the motion with the trial
court seeking reconsideration of its denial of his post-
conviction petition. . . . [and] leave to amend . . . .”
Greenway v. Schriro, 653 F.3d 790, 795–96 (9th Cir. 2011).
3
Though the precise timeline is not entirely clear from the record,
Greenway admitted in the district court proceedings on remand from our
2011 disposition that he was aware of the Affidavit well before Ryan filed
GREENWAY V. RYAN 17
The Arizona Superior Court summarily dismissed all the
claims in Greenway’s Addendum as procedurally barred
under Arizona Rules of Criminal Procedure, Rule 32.2(a)(3).4
Greenway petitioned for federal habeas relief, and the district
court held that the state court’s dismissal of Greenway’s
petition for post-conviction relief pursuant to Rule 32.2(a)(3)
constituted an independent and adequate state ground
sufficient to support a finding of procedural default. We
reversed. We reasoned, first, that Rule 32.2(a)(3) applied
only when there had been a “prior post-conviction
proceeding.” Greenway v. Schriro, 653 F.3d 790, 800 (9th
Cir. 2011) (emphasis added). In Greenway’s case, there had
been “no such prior post-conviction proceeding” because
Greenway had been “trying to amend his first petition” for
post-conviction relief when the state court judge summarily
dismissed his claims. Id. Because Rule 32.2(a)(3) did not
even apply, it was not an “independent and adequate” state
court ground barring our review. Id. Second, we reasoned
that, under Arizona Rules of Criminal Procedure, Rule
32.6(d), a defendant may amend a post-conviction petition for
relief for “good cause.” Yet, notwithstanding this provision,
the Addendum. See Brief of Petitioner at 19 & n.24, Greenway v. Ryan,
2013 WL 6196293 (D. Ariz. Nov. 27, 2013) (No. CV-98-25-TUC-RCC),
ECF No. 169 (“Juror Coker had been the victim of rape and sexual
assault. . . . This information was discovered during Greenway’s post-
conviction proceedings when he was represented by the Arizona Capital
Representation Project. Greenway’s successor counsel, Carla Ryan, who
ultimately filed a request to amend his post-conviction petition . . . never
included this information or a separate juror misconduct claim in the
record.”).
4
Rule 32.2(a)(3) provides, “A defendant shall be precluded from
[post-conviction] relief under this rule based upon any ground . . . . [t]hat
has been waived at trial, on appeal, or in any previous collateral
proceeding.” Ariz. R. Crim. P. 32.2(a)(3)).
18 GREENWAY V. RYAN
the state court judge had failed to consider whether good
cause existed in Greenway’s case.5 Id. at 799. Thus, Rule
32.6(d) also did not bar our review of Greenway’s petition.
Id. (citing to our prior decision in Scott v. Schriro, 567 F.3d
573 (9th Cir. 2009), where we held that “Rule 32.6(d) was not
an adequate bar to federal review because the rule was not
clear, well-established, nor consistently applied in Arizona”).
Having concluded that the claims in Greenway’s Addendum
were not barred, we remanded this case to the district court
with instructions to review de novo the merits of those claims.
Thus, our prior mandate limited the district court’s review
(and, correspondingly, our own review on appeal) to those
claims stated in the Addendum.
Our review is likewise limited by the exhaustion-of-state-
remedies doctrine, See, e.g., Weaver v. Thompson, 197 F.3d
359, 364 (9th Cir. 1999) (A petitioner is barred from raising
for the first time in federal habeas proceedings arguments that
do not arise out of the “same [factual] incident” as the claims
presented to the state court or which “fundamentally alter the
legal claim already considered by the state courts.” (internal
quotation marks omitted)). In Dickens v. Ryan, 740 F.3d
1302 (9th Cir. 2014) (en banc), for example, we held that
even a related, but more specific claim might be barred in
federal collateral proceedings if it significantly strengthened
the evidentiary posture of the petitioner’s state-court claim
and thus fundamentally altered it. Id. at 1318. In Dickens,
the petitioner had made only general allegations in the state
court proceedings that “sentencing counsel did not effectively
evaluate whether Dickens ‘suffer[ed] from any medical or
5
Rule 32.6(d) provides, “After the filing of a post-conviction relief
petition, no amendments shall be permitted except by leave of court upon
a showing of good cause.” Ariz. R. Crim. P. 32.6(d).
GREENWAY V. RYAN 19
mental impairment.’” Id. at 1319. Then, for the first time on
federal habeas review, Dickens offered evidence of “specific
conditions” (Fetal Alcohol Syndrome and organic brain
damage) in support of his IAC claim. Id. We concluded that
Dicken’s “newly enhanced Strickland claim [was]
procedurally barred” because the new factual predicate
“substantially improved” the evidentiary posture of Dickens’
IAC claim. Id.So here, Greenway’s current claim that trial counsel was
ineffective in failing to take certain steps to prevent a biased
juror (Juror Coker) from being empaneled was never “fairly
presented” to the state court. Picard v. Connor, 404 U.S.
270, 275 (1971) (“We emphasize that the federal claim must
be fairly presented to the state courts.”). Greenway’s state-
court Addendum contains no mention of Juror Coker, of juror
bias, or of counsel’s failure to ask specific questions during
voir dire. In fact, the only statement in the Addendum related
to Greenway’s current juror bias claim is that trial counsel’s
failure to use a juror questionnaire was “questionable.” But
the Addendum states no basis as to why that failure was
“questionable,” much less that such failure rose to the level
of ineffective assistance of counsel. Additionally, Greenway
offers no excuse for his failure to present a juror bias claim in
state court. Indeed, Greenway admits that he was aware of
Juror Coker’s December 1994 Affidavit nearly two years
before Ryan filed the August 1996 Addendum. Still, he did
not argue that the missing questionnaire rendered counsel’s
performance ineffective because it could have asked whether
any venire member had been the victim of a violent or sex-
related crime. Under Dickens, I would find that Greenway’s
cursory criticism in his Addendum of the method of voir dire
does not preserve Greenway’s factually distinct and far more
20 GREENWAY V. RYAN
specific claim that a biased juror was seated because trial
counsel failed to ask the right substantive questions.
Nor may we overlook this default under Martinez, which
permits a federal habeas court to excuse a defendant’s failure
to exhaust state court remedies in initial post-conviction
review proceedings if counsel in those collateral proceedings
was ineffective under Strickland v. Washington, 466 U.S. 668(1984). Martinez v. Ryan, 132 S. Ct. 1309, 1318 (2012).
Here, Martinez would apply only if Greenway can
demonstrate that Ryan, his initial post-conviction review
counsel, acted ineffectively in failing to raise an IAC claim as
to trial counsel on the juror bias issue. Greenway did not
even attempt to make this showing in his 99-page opening
brief, which contained only the most cursory reference to
Martinez. Indeed, Greenway specifically argued the
opposite: that “Ryan fairly presented Greenway’s IAC claim
and gave the state court an opportunity to decide the federal
claim.” See United States v. Kama, 394 F.3d 1236, 1238 (9th
Cir. 2005) (“[A]n issue is waived when the appellant does not
specifically and distinctly argue the issue in his or her
opening brief.”).
But even assuming Greenway has not waived his
Martinez argument by failing to make it, I would find that
Martinez’ “narrow exception” does not apply here. To
prevail on a claim of IAC, Greenway would have to show that
Ryan’s performance (1) fell below objective standards of
reasonableness “outside the wide range of professionally
competent assistance,” and (2) prejudiced him by creating “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding could have been
different.” Strickland v. Washington, 466 U.S. 668, 690, 694
(1984). Importantly, Greenway is not alleging a direct
GREENWAY V. RYAN 21
violation of his due process or Sixth Amendment right to an
impartial jury. Rather, he is alleging that trial counsel’s
failure to take certain steps that, arguendo, would have
revealed Juror Coker’s bias (thereby preventing a
constitutional violation) rendered trial counsel’s
representation ineffective. For the reasons described in Judge
Schroeder’s opinion, however, this claim is predicated on
multiple layers of speculation. A reasonable attorney in
Ryan’s position could therefore have concluded that it lacked
merit; thus Ryan was not ineffective in failing to raise it.
Thus, Martinez does not apply to excuse Greenway’s failure
to exhaust his state-court remedies.
In sum, I would find that Greenway has waived any claim
of juror bias based on trial counsel’s failure to ask certain
questions that allegedly would have prevented Juror Coker
from being seated on Greenway’s jury.