Murray Hooper v. David Shinn ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MURRAY HOOPER, No. 08-99024
Petitioner-Appellant,
D.C. No.
v. 2:98-CV-02164-SMM
DAVID SHINN, * Warden,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, District Judge, Presiding
Argued and Submitted September 16, 2020
San Francisco, California
Filed January 8, 2021
Before: Jacqueline H. Nguyen, Mark J. Bennett, and
Ryan D. Nelson, Circuit Judges.
Opinion by Judge Bennett
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), David
Shinn is substituted for his predecessor, Dora B. Schriro, as Warden.
2 HOOPER V. SHINN
SUMMARY **
Habeas Corpus / Death Penalty
The panel affirmed the district court’s denial of Murray
Hooper’s habeas corpus petition challenging his Arizona
state conviction and death sentence for multiple offenses
including two counts of first-degree murder.
The panel addressed three certified issues: (1) whether
the prosecution’s nondisclosure and delayed disclosures of
evidence violated Hooper’s due process rights under Brady
v. Maryland, 373 U.S. 83 (1963); (2) whether the district
court erred in denying Hooper leave to amend his petition to
add a claim that his death sentence violates the Eighth and
Fourteenth Amendments because his sentence was based, in
part, on now-invalid convictions; and (3) whether Martinez
v. Ryan, 566 U.S. 1 (2012), excuses the procedural default
of his claim that his trial counsel rendered ineffective
assistance at sentencing.
Analyzing Hooper’s Brady claims under the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), the panel held that:
• The Arizona Supreme Court did not unreasonably
apply clearly established law in concluding that
Hooper failed to show that disclosure of benefits that
the State and a county investigator provided to a
witness and his wife might have affected the outcome
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
HOOPER V. SHINN 3
of the trial; that the panel is therefore barred under 28
U.S.C. § 2254(d)(1) from reviewing Hooper’s claim
based on these benefits; and that the Arizona
Supreme Court’s determination that the benefits
were cumulative impeachment evidence was not an
unreasonable factual determination under
28 U.S.C. § 2254(d)(2).
• Because there was no clearly established law
governing Brady claims based on delayed
disclosures where the defense had the opportunity to
use the evidence at trial, AEDPA precludes review
of the Arizona Supreme Court’s decision on
Hooper’s claim regarding the delayed disclosure of
police reports.
• Because there was no clearly established law
concerning such delayed disclosures, Hooper’s
argument that the Arizona Supreme Court’s decision
on delayed disclosure of photos was an unreasonable
application of clearly established law likewise fails;
and assuming without deciding that the Arizona
Supreme Court’s decision on the photos was based
on an unreasonable factual determination, the
outcome on the Brady claims does not change
because the claims fail even on de novo review.
The panel wrote that even if it could review all of the
Brady claims de novo, they would fail because the delay in
producing the photos and police reports, and the failure to
disclose the benefits to the witness and his wife, were not
material, as they would not have put the whole case in such
a different light as to undermine confidence in the verdict.
4 HOOPER V. SHINN
The panel held that the district court properly denied
Hooper’s request for leave to amend his petition to include
claims that his death sentence violates the Eighth and
Fourteenth Amendments because any amendment would be
futile.
The panel held that Hooper—who did not raise in his
first state post-conviction petition his claim of ineffective
assistance of sentencing counsel—failed to establish cause
under Martinez to excuse the procedural default. The panel
held that because Hooper failed to show what additional
evidence he could have obtained from discovery or an
evidentiary hearing to support that he was prejudiced by trial
counsel’s performance, the district court did not abuse its
discretion in denying his requests for discovery and an
evidentiary hearing.
The panel declined to expand the certificate of
appealability to include two claims as to which it deemed the
district court’s decision not debatable among reasonable
jurists.
COUNSEL
Thomas J. Phalen (argued), Phoenix, Arizona; Jon M. Sands,
Federal Public Defender; Dale A. Baich, Assistant Federal
Public Defender; Office of the Federal Public Defender,
Phoenix, Arizona; for Petitioner-Appellant.
Jeffrey L. Sparks (argued), Jon G. Anderson, and John
Pressley Todd, Assistant Attorneys General; Kent Cattani,
Chief Counsel, Capital Litigation Section/Criminal Appeals
Section; Office of the Attorney General, Phoenix, Arizona;
for Respondent-Appellee.
HOOPER V. SHINN 5
OPINION
BENNETT, Circuit Judge:
In this murder-for-hire case, an Arizona jury convicted
Murray Hooper on all counts, including two counts of first-
degree murder. The trial court sentenced Hooper to death.
On New Year’s Eve 1980, while Pat Redmond, his wife
Marilyn Redmond, and Marilyn’s mother Helen Phelps
(who was visiting) were home preparing for a festive dinner,
Hooper, William Bracy, and Ed McCall forced their way
into the home at gunpoint. Hooper and his coconspirators
demanded jewelry, money, and guns. They herded their
victims into the master bedroom and forced them to lie face
down on the bed. Redmond, Marilyn, and Phelps were then
bound and gagged. One or all the intruders shot each victim
in the head, and one of the intruders slashed Redmond’s
throat. Redmond and Phelps died, but Marilyn survived.
Hooper appeals the district court’s denial of his petition
for a writ of habeas corpus. He raises three certified issues:
(1) whether the prosecution’s nondisclosure and delayed
disclosures of evidence violated his due process rights under
Brady v. Maryland, 373 U.S. 83 (1963); (2) whether the
district court erred in denying him leave to amend his
petition to add a claim that his death sentence violates the
Eighth and Fourteenth Amendments because his sentence
was based, in part, on now-invalid convictions; and
(3) whether Martinez v. Ryan, 566 U.S. 1 (2012), excuses the
procedural default of his claim that his trial counsel rendered
ineffective assistance at sentencing. Hooper also raises two
uncertified issues: (1) whether he was unconstitutionally
shackled at trial; and (2) whether the unconstitutional
shackling caused him to involuntarily waive his right to be
present at voir dire because it forced him to choose between
two constitutional rights.
6 HOOPER V. SHINN
We have jurisdiction under 28 U.S.C. §§ 1291 and 2253,
and we affirm the district court’s denial of habeas relief.
I. Facts and Procedural History
A. The Conspiracy and Murders
Robert Cruz, head of a Chicago crime organization, hired
Hooper, Bracy, and McCall to kill Redmond.1 Redmond and
Ron Lukezic co-owned Graphic Dimensions, a successful
Phoenix printing business. In the summer of 1980, Cruz and
Arthur Ross (Lukezic’s brother-in-law) offered Graphic
Dimensions several lucrative printing contracts with Las
Vegas hotels, but Redmond rejected the offers. Cruz was
unhappy and wanted Redmond killed to get Redmond’s
interest in the business. His plan was to eventually take over
the entire business by having Lukezic killed.
In September 1980, Cruz offered Arnold Merrill $10,000
to kill Redmond, but Merrill refused. In early December
1980, Hooper and Bracy, who lived in Chicago, flew from
Chicago to Phoenix, and Cruz and Merrill picked them up at
the airport. Over the next several days, Merrill drove Hooper
and Bracy to various locations. On one occasion, Merrill
took the men to see Cruz, and Merrill saw Cruz give a stack
of $100 bills to Bracy, who gave some to Hooper. That same
day Merrill drove the men to the Gun Trader, a gun store
owned by Merrill’s brother, Raymond Kleinfeld. Hooper
1
As discussed below, identification was a critical issue in the case.
Hooper and Bracy are black, and McCall is white. Hooper was thirty-
five when he committed the Redmond crimes. Bracy died of natural
causes in 2005, see Motion to Dismiss, Bracy v. Schriro, No. 95-cv-
02339 PHX-SSM (D. Ariz. Sept. 7, 2005), ECF No. 94, and McCall is
also deceased.
HOOPER V. SHINN 7
picked out a large knife, paid for by Cruz, and Kleinfeld gave
Bracy a package containing three guns.
At some point, Merrill, Hooper, and Bracy spotted
Redmond leaving a bar and followed him as he drove away
from the bar. During the chase, Hooper held his gun out of
the window to shoot Redmond. Merrill sped up and turned
into a parking lot to prevent Hooper from shooting
Redmond. After this aborted attempt, Hooper and Bracy
moved out of Merrill’s home and into the apartment of
Valinda Lee Harper and Nina Marie Louie, two women
Merrill had introduced to Hooper and Bracy. At some point
during their trip, Merrill also introduced Hooper and Bracy
to McCall. Hooper and Bracy eventually returned to
Chicago.
Hooper and Bracy came back to Phoenix on December
30, 1980. That day, at Cruz’s direction, Merrill and George
Campagnoni drove by Redmond’s home and Graphic
Dimensions to verify the addresses. The next morning,
McCall dropped off Hooper and Bracy at Merrill’s home,
and Merrill gave Bracy a piece of paper with directions to
Redmond’s home and Graphic Dimensions. Later that
morning, McCall came back for Hooper and Bracy, and the
three left Merrill’s home. Dean Bauer (Cruz’s employee)
then came to Merrill’s home and dropped off two airplane
tickets from Phoenix to Chicago for “Sam Johnson” and
“Tony Jones.”
That same day, Louie arrived at her apartment around
noon. McCall, Hooper, and Bracy were already there. Bracy
asked Louie “what time it got dark” and said that they had
“some business to take care of.” All three men were armed
with guns. Louie had to work that night, and Harper
borrowed McCall’s car to drive Louie to work. Before
Harper and Louie left the apartment around 5:45 p.m.,
8 HOOPER V. SHINN
McCall told Harper that she needed to come back quickly
because “they had a very important appointment.”
Later that night, Hooper, Bracy, and McCall went to
Redmond’s home and killed Redmond and Phelps and
attempted to kill Marilyn. After the murders, they went to
Merrill’s home. Around midnight, Campagnoni drove
Hooper and Bracy from Merrill’s home to the Phoenix
airport with the airline tickets for “Sam Johnson” and “Tony
Jones.”
The day after the murders, McCall went to Harper’s and
Louie’s apartment and told them how the murders had been
committed, including describing his role and Hooper’s role
in committing them. He told them that it was a “contract . . .
hit, not [a] robbery” and that Hooper had cut Redmond’s
throat and shot Marilyn. McCall later detailed the crimes to
Merrill and told him that he was expecting $10,000 from
Chicago.
B. The Police Investigation
On New Year’s Eve 1980, Officer Louis Martinez
responded to a call that there were two or possibly three dead
bodies at the address of the Redmond home. When Officer
Martinez arrived, he questioned Marilyn who was conscious
but “had a very detached look on her face.” Marilyn told
him, “Three black men came in and robbed us.” She initially
reported to Officer Thomas Varela, who also questioned her
at the scene, that the intruders were all black. But Officer
Varela asked if she was sure, and Marilyn then told him that
two of the intruders were black and one was white. Later
that same night at the hospital, Marilyn reported to Officer
Jesus Perez that one of the intruders was white and the other
two were black. She also reported that one of the black
males was wearing a tan leather jacket with dark pants.
HOOPER V. SHINN 9
Around 9 p.m., about two hours after the murders, three
black men—Ronald Bradford, Michael Bradford, and
Novell Ward (collectively, the “Bradfords and Ward”)—
were arrested on traffic, weapons, and drug charges. Ronald
Bradford was very slender and had a wart on his forehead
above his nose. Ward was wearing a brown vinyl or leather
jacket with a fleece collar at the time of his arrest.
Around 10:05 p.m., while the Bradfords and Ward were
in custody, the Maricopa County Sheriff’s Office received
an anonymous call that a black man named “Slim” with a
wart on his nose was involved in the Redmond murders. The
caller said that Slim was currently at the corner of 13th and
Washington Streets. The police interviewed, photographed,
and fingerprinted the Bradfords and Ward, and the police
ultimately ruled them out as suspects in the Redmond
crimes.
On January 1, 1981, Harper called the police and
implicated Hooper, Bracy, and McCall in the murders.
During her interview, Harper said that she was with Bracy in
Phoenix on New Year’s Eve.
On January 4, 1981, officers executed a search warrant
on McCall’s home and vehicle. They found Long’s
Drugstore receipts inside his vehicle, showing that three
pairs of surgical gloves and adhesive tape had been
purchased the same day as the murders. They also found two
plastic gloves in a garbage bag at McCall’s home.
A fingerprint analyst lifted fingerprints from McCall’s
vehicle and the Redmond home. The analyst was unable to
match any to Hooper, Bracy, McCall, or the Bradfords and
Ward.
The State’s criminalist analyzed the bullets removed
from the victims and found at the crime scene and
10 HOOPER V. SHINN
determined that they were .38 caliber bullets, and that all had
been fired from the same gun. The bullets could have been
fired from a Colt Trooper .357 magnum.
Fifty-three days after the murders, Marilyn flew to
Chicago to view lineups of Hooper and Bracy. After
viewing the first lineup, which included Bracy, Marilyn
reserved judgment. After viewing the second lineup with
Hooper, Marilyn positively identified Hooper. Marilyn then
asked to see the first lineup again, and she identified Bracy.
C. The Trial
Hooper and Bracy were tried together. Each was
charged with conspiracy to commit first-degree murder
(Count One), two counts of first-degree murder (Counts Two
and Three), one count of attempted first-degree murder
(Count Four), three counts of kidnapping (Counts Five to
Seven), three counts of armed robbery (Counts Eight to
Ten), and one count of first-degree burglary (Count Eleven).
Their trial started on October 20, 1982. The jury convicted
Hooper and Bracy on all counts on December 24, 1982.
1. Hooper’s Defense Theory
Hooper’s and Bracy’s primary defense theory was that
they were in Chicago at the time of the murders. They also
argued that the prosecution’s investigation was improper,
mainly because of the improper conduct of the State’s
investigator, Daniel Ryan. They further argued that the
police had wrongly eliminated the Bradfords and Ward as
suspects.
Hooper did not testify, but his counsel laid out Hooper’s
defense in his opening statement. Hooper and Bracy had
come to Arizona in early December 1980, but not to kill
HOOPER V. SHINN 11
Redmond. Cruz and Merrill wanted to take over the South
Phoenix drug business, and they brought Hooper and Bracy
to Arizona to persuade them to kill the top drug dealers in
South Phoenix. Hooper and Bracy refused the job. In an
attempt to change their minds, Merrill introduced them to
women (Harper and Louie) and took them to the Gun Trader,
on Cruz’s tab. Cruz also gave them money. But Hooper and
Bracy still refused the job and left Arizona.
Cruz, Merrill, Campagnoni, McCall, Harper, and Louie
then become “paranoid” that Hooper and Bracy would turn
on them by informing the South Phoenix drug dealers about
their takeover plans. This motivated the group to frame
Hooper and Bracy for the Redmond murders. The group
then had McCall pay two unnamed black men to go with him
to Redmond’s home while McCall committed the murders,
and one day later Harper falsely reported to the police that
McCall, Hooper, and Bracy had committed the murders.
2. The State’s Evidence
The prosecution presented overwhelming evidence of
Hooper’s guilt. The most important witness was Marilyn, as
she was the only one who saw the intruders in her home.
Marilyn identified Hooper, Bracy, and McCall as the
murderers. Her in-court identifications were certain, and she
did not waiver when the defense suggested she could be
mistaken. The jury also learned that Marilyn had picked
Hooper and Bracy out of lineups before trial.
Marilyn provided very specific details about her lengthy
encounter with the murderers. Marilyn explained that they
gave her directions and asked her several questions. She
looked at their faces each time they spoke to her. At one
point during the encounter, she was positioned “[e]lbow to
elbow” with Hooper and she looked at him. She described
12 HOOPER V. SHINN
the clothing that each murderer wore. Bracy was wearing a
tan leather jacket, dark slacks, and a dark shirt. Hooper was
wearing a darker brown sports or leather coat and dark
slacks. McCall was wearing a light tan suit.
Marilyn testified that the men forced their way into the
home at gunpoint. Bracy directed her to hold the family dog
and close the drapes, and she complied. The intruders
demanded jewelry and money and asked if there was a safe
or any guns in the home. She gave Bracy the jewelry she
was wearing, told them there was a gun in the nightstand,
and showed Hooper the guns in the hall closet. Redmond
gave them his watch and ring, and one of the intruders
grabbed Phelps’s wedding ring as she tried to hide it under a
pillow. All three victims were eventually told to lie on the
bed, and Hooper taped their hands behind their backs.
Hooper then gagged all three using socks. Marilyn heard
McCall say, “[W]e don’t need these two anymore,” and then
she heard two shots. That was the last thing she remembered
before waking up.
The defense tried to discredit Marilyn by pointing out
inconsistencies between her testimony and prior statements.
For example, Marilyn initially reported to some witnesses
that the intruders were all black and that two wore masks.
Marilyn testified that she did not recall making the prior
statements or that they were wrong or had been
misinterpreted. The defense also tried to cast doubt on
Marilyn’s lineup identifications by, among other things,
suggesting that the State’s investigator, Ryan, had shown her
pictures of Hooper and Bracy before the lineups. Marilyn
testified that did not happen.
The defense presented an expert on human perception
and memory who testified that people make more mistakes
when they try to identify a person of a different race and that
HOOPER V. SHINN 13
violent events are more poorly stored in people’s memories.
On cross-examination, however, the expert conceded that
she could not opine on whether Marilyn experienced any
cross-racial identification problems. And the prosecutor
elicited testimony showing that Marilyn was skilled at
recognizing faces. She testified that she had worked as a
sales receptionist for seven years and was like a “visual
Rolodex” for the company.
Louie was also an important witness. She testified that
she met Hooper and Bracy in early December 1980 in
Phoenix. She overheard Bracy say that “he had a big job to
do” for $50,000 and “it wasn’t going to be very pretty.”
Bracy told her that he and Hooper would return to Phoenix
on New Year’s Eve.
On New Year’s Eve, Louie saw Hooper, Bracy, and
McCall at her apartment. McCall was wearing a suit, Bracy
and Hooper were wearing slacks and dark shirts, and one of
them had a brown leather jacket. She testified that all three
were armed with guns, and Hooper had a large gun “similar
to a .357 magnum or a large-barrel .38.” Bracy asked her
what time it got dark and said that they had “some business
to take care of.” McCall let Harper use his car to drive Louie
to work that night. McCall told Harper that she needed to
come back quickly because “they had a very important
appointment.”
The next day, McCall came to Louie’s apartment and
discussed the Redmond crimes. While watching the news,
McCall corrected the newscaster by stating that Marilyn was
not shot in the face but in the back of the head, like the other
two; the victims were not tied up, but were taped; and only
Redmond’s throat had been slashed. He said that Hooper
was the one who had shot Marilyn and cut Redmond’s
14 HOOPER V. SHINN
throat. McCall stated that it was a “professional job” and a
“contract . . . hit, not [a] robbery,” and that they wore gloves.
The State presented evidence corroborating parts of
McCall’s statements to Louie. It offered the two Long’s
Drugstore receipts found in McCall’s vehicle, showing that
three pairs of gloves and tape had been purchased on the day
of the murders. A Long’s Drugstore employee testified that
two men, one black and one white, bought three pairs of
gloves and adhesive tape on the day of the murders.
Redmond’s neighbors reported that a vehicle matching the
description of McCall’s car had been near the Redmond
home around the time of the murders.
Other evidence also corroborated Louie’s testimony. An
officer testified that Harper had called the police the day
after the murders and implicated Hooper, Bracy, and McCall
in the Redmond murders. The jury also learned that in a later
police interview, Harper said that she was with Bracy in
Phoenix on New Year’s Eve. 2
Campagnoni testified that he saw Hooper and Bracy at
Merrill’s home on New Year’s Eve. He saw Merrill give
Bracy a piece of paper with directions to the Redmond home
and Graphic Dimensions. Campagnoni testified that after
Hooper and Bracy left, Bauer came to Merrill’s home and
dropped off airline tickets with the names “Sam Johnson”
and “Tony Jones.”
Campagnoni next saw Hooper, Bracy, and McCall later
that evening when they returned to Merrill’s home. The
three had jewelry, some of which looked very similar to a
ring and watch owned by Redmond. Campagnoni drove
2
Harper did not testify because she could not be found.
HOOPER V. SHINN 15
Hooper and Bracy to the airport that night around midnight.
Bracy had the airline tickets that Bauer had dropped off
earlier, and Bracy told Hooper that he would be “Tony
Jones” and Hooper would be “Sam Johnson.”
Merrill also testified. He described the origin of and
motive for the plan to kill Redmond, including that he had
refused Cruz’s offer to kill Redmond for $10,000. Merrill
provided many details about Hooper’s and Bracy’s first trip
to Arizona in early December 1980. He said that he and Cruz
picked up Hooper and Bracy from the Phoenix airport.
During early December: he saw Cruz give Bracy a stack of
money, which Bracy shared with Hooper; he took the men
to the Gun Trader where they picked up three guns and
Hooper picked out a knife, which was paid for by Cruz and
looked like the same knife found at the crime scene; Merrill,
Hooper, and Bracy followed Redmond from a bar called
Chester’s Lounge, Hooper pointed his gun out the car
window to shoot Redmond, but Merrill stopped Hooper from
firing by turning into a parking lot; and after the chase,
Hooper and Bracy moved from Merrill’s home into Harper’s
and Louie’s apartment.
Merrill testified that, on December 30, 1980, Cruz
instructed him to tell McCall to pick up Bracy and Hooper
from the Phoenix airport and to pick up a package from the
Gun Trader. That same day, at Cruz’s direction, Merrill and
Campagnoni verified the addresses for the Redmond home
and Graphic Dimensions. The next morning, McCall
dropped off Hooper and Bracy at Merrill’s home. McCall
came back later that morning and left with Hooper and
Bracy. Bauer came to Merrill’s home in the afternoon and
dropped off two American Airlines tickets from Phoenix to
Chicago.
16 HOOPER V. SHINN
Merrill testified that Hooper, Bracy, and McCall came to
his home around 8:30 p.m. on New Year’s Eve. They had
with them several items that might have come from the
Redmond home, including a watch, ring, and gun holster.
Several days later, McCall told Merrill that he, Hooper, and
Bracy had committed the Redmond crimes. McCall told
Merrill that he was expecting a payment of $10,000 from
Chicago for the murders.
Merrill was severely impeached. Most significantly, the
jury learned that he had received a deal from the State giving
him immunity for the Redmond crimes, including the first-
degree murders of Redmond and Phelps for which he could
have received the death penalty, as well as immunity for
unrelated crimes. 3 Thus, the jury knew Merrill had a very
strong personal stake in the case and motive to lie. The
defense also showed that Merrill had received special
treatment from the State and Ryan: Merrill was placed in a
more inmate-friendly, out-of-state prison as part of his deal;
Ryan did not immediately arrest him in New York even
though he was wanted for first-degree murder; Ryan allowed
him to travel unrestrained from New York to Arizona despite
being a wanted murderer; and Ryan took Merrill out of jail
for a conjugal visit.
The defense also cast significant doubt on Merrill’s
credibility by showing that Ryan had stopped his tape-
recorded interview with Merrill more than twenty times.
Neither Merrill nor Ryan could provide any plausible
explanations for the interruptions, and the defense
persuasively argued that Ryan must have paused the tapes to
coach Merrill on what to say. The defense gave the jury
3
As part of his plea deal, Merrill pleaded guilty to an unrelated
burglary and theft and received an eight-year sentence.
HOOPER V. SHINN 17
many other reasons to discredit Merrill’s testimony: he had
previously lied to the police in this case and had initially
helped cover up the crimes; he was part of a group that
committed burglaries and robberies, and he had sold stolen
property; he had hired someone to commit arson for Cruz;
he was a drug dealer and had a long history of abusing
prescription medications; and Merrill’s friend, Campagnoni,
testified that Merrill was a braggart, and even Merrill’s own
brother, Kleinfeld, testified that he was a “story teller, liar,
[and] bragger.”
The defense further impeached Merrill by highlighting
many inconsistencies between his testimony and his prior
statements. For example: Merrill testified that he did not
get together with Campagnoni to make up a story, but
Merrill had previously stated that he told Campagnoni to
deny to the police that any black individuals had been at his
home; Merrill testified that the bullets he threw away in a
canal could not have been the same type that killed
Redmond, but he previously testified that they could have
been; and he testified that he was not the leader of a criminal
group, which contradicted his prior testimony. Parts of
Merrill’s testimony also contradicted other evidence, giving
the jury even more reasons to disbelieve him. For example,
Kleinfeld testified that Merrill picked out the knife at the
Gun Trader, not Hooper, and Campagnoni testified that
Merrill gave Bracy .38 caliber ammunition on New Year’s
Eve, but Merrill denied giving any bullets to Hooper, Bracy,
or McCall.
The State’s case included evidence beyond the
testimonies of Marilyn, Louie, Campagnoni, and Merrill.
Several other witnesses testified about the motive for the
killings. Graphic Dimensions employees testified that they
had seen Cruz touring Graphic Dimensions around mid-
18 HOOPER V. SHINN
1980. William Michael Tompkins, a pilot whom Cruz had
hired on occasion, testified that during the summer of 1980
he overheard Cruz say that he wanted to take over a printing
business to launder money and that he was “going to have to
get rid of” the uncooperative business partner.
Tompkins also testified that, around December 28, 1980,
Cruz had asked him to rent a private plane because the same
two black men who had been in Phoenix in early December
were coming back to Phoenix and did not want to fly
commercial. Cruz, however, called Tompkins the next night
and told him to cancel the plane because the men had decided
to fly commercial. Bauer testified that on December 31,
1980, at Cruz’s direction, he purchased two one-way tickets
from Phoenix to Chicago on the red-eye flight that left at
2:00 a.m. Bauer testified that he delivered the tickets to
Merrill’s home at Cruz’s direction. The State’s evidence
included the two one-way tickets, and an airline
representative testified that the tickets had been used. This
corroborated that Hooper and Bracy were in Phoenix on
New Year’s Eve.
Telephone records further supported that Hooper and
Bracy were then in Phoenix, not Chicago. The records
showed that, on December 31, 1980, two phone calls were
made from Merrill’s home in Phoenix to Ann Harris’s home
in Chicago (Harris was the mother of Hooper’s then-
girlfriend). Other records showed that Bracy made calls
from his home in Chicago to Cruz’s home in Illinois and the
Gun Trader in the days before the murders. No calls were
made from Bracy’s home to Cruz’s Illinois home on the day
of the murders, but the calls from Bracy’s home to Cruz’s
Illinois home resumed immediately after. The State argued
that these telephone records showed that Bracy and Hooper
were in Phoenix on the day of the murders.
HOOPER V. SHINN 19
The jury learned about evidence from which it could
infer that Hooper possessed both the murder weapon and the
knife that was used to slash Redmond’s throat. The bullets
removed from the victims had been fired from the same
weapon, which could have been a Colt Trooper .357
magnum. Kleinfeld testified that he sold three guns to Cruz
in December 1980, including a .357 Colt Trooper and .22
Ruger, and that McCall had picked up those two guns at the
Gun Trader around December 30, 1980, the day before the
murders. Louie testified that on the day of the murders,
Hooper was with McCall and had a gun similar to a .357
magnum. Kleinfeld also testified that around early
December 1980, Merrill, Hooper, and Bracy had come to the
Gun Trader and left with a knife that was the same or very
similar to the knife found at the crime scene, which had been
used to cut Redmond’s throat.
3. Evidence Relating to the Bradfords and Ward
During the defense’s cross-examination of Detective
Ronald Quaife, the jury learned that three black men, the
Bradfords and Ward, had been arrested on the night of the
murders for traffic, weapon, and drug charges. Detective
Quaife described Ronald Bradford as slender and having a
wart above his nose. He stated that Ward had been wearing
a brown leather or vinyl jacket at the time of his arrest. He
also testified about the anonymous call made to the Sheriff’s
Office around 10:05 p.m. while the Bradfords and Ward
were in custody. Detective Quaife said the caller reported
that a black male matching the description of Ronald
Bradford had committed the Redmond crimes. He explained
that the Bradfords and Ward were ruled out as suspects based
on the temporal proximity between the murders and their
arrests.
20 HOOPER V. SHINN
During redirect of Detective Quaife, the prosecutor
asked about photos that had been taken of Ronald Bradford.
From this questioning, the defense realized that the
prosecution had withheld arrest photos of the Bradfords and
Ward. They then moved for a mistrial. The court denied the
mistrial motion but granted the defense’s motion to exclude
Detective Quaife’s testimony about the photos as improper
redirect exceeding the scope of cross-examination. The
court then instructed the jury to disregard any reference to
the photos.
The next day, the defense learned through Officer
Michael Midkiff’s testimony that the prosecution may have
failed to disclose all the police reports on the Bradfords and
Ward. Hooper moved for a mistrial based on this purported
failure, and the court conducted a brief hearing. Later that
day, the court resumed the hearing on the mistrial motion
based on the alleged undisclosed reports. During the
hearing, Bracy’s counsel informed the court that he would
be moving for some of the photos of the Bradfords and Ward
to be admitted. Presumably, the photos had been provided
to the defense by this time. The photos included color
photographs taken from different angles and showed what
they were wearing when arrested. The court ultimately
denied the mistrial motion. But as a remedy, it ordered that
the two detectives who had interviewed the Bradfords and
Ward be available to the defense for interviews. 4
About five days later, while the State was still presenting
its case, the prosecution provided the undisclosed reports on
4
We are unable to discern from the record whether the defense
interviewed these two detectives.
HOOPER V. SHINN 21
the Bradfords and Ward to the defense. 5 The defense was
provided the undisclosed photos of and reports on the
Bradfords and Ward at least three weeks before Hooper
presented his defense.
The State used the photos during Marilyn’s direct
examination. Though the photos had not yet been admitted,
the prosecutor showed Marilyn the photos of the Bradfords
and Ward, and she testified that she did not see these men on
New Year’s Eve.
The photos were later admitted through Hooper’s first
witness, Detective Quaife. During cross-examination, the
prosecutor successfully, and without objection, admitted the
photos. On redirect, the court granted Hooper’s request that
the photos be published to the jury.
Hooper also used the undisclosed reports in questioning
Detective Quaife. During Hooper’s direct examination, the
jury learned that Detective Quaife had been asked by the
prosecution during the trial to look for arrest records on the
Bradfords and Ward and that Detective Quaife had found
them. Detective Quaife testified that, based on these records,
he learned that the Bradfords and Ward had been arrested at
9 p.m. at a location about twenty minutes from the Redmond
home. The defense drew out other details based on the
reports, which called into doubt the reasons the police had
discounted the Bradfords and Ward as suspects for the
Redmond crimes.
5
Before trial, the prosecution had disclosed police reports that
mentioned some of the circumstances of the arrests of the Bradfords and
Ward as well as the anonymous call. The undisclosed reports revealed
more detail about the circumstances of the arrests.
22 HOOPER V. SHINN
The jury also learned more details about the anonymous
call through the prosecutor’s cross-examination of Detective
Quaife. The caller said that he had seen the newscast of the
homicides and that one of the persons involved was at 13th
Street and Washington. The caller said that the person
involved was a black male named “Slim” and that Slim had
a wart on the side of his nose.
4. Defense Evidence
The defense put on evidence showing that the State’s
investigator, Ryan, used improper investigatory tactics and
engaged in other improper conduct. For example, Kleinfeld
testified that Ryan had threatened to break his legs if he did
not tell him what he wanted to know. Wally Roberts, who
worked with Graphic Dimensions, testified that Ryan had
given him cash and told him not to cooperate with the
defense and to lie to the police. The jury also learned that
Ryan had provided false answers to Campagnoni’s
presentence report writer to help Campagnoni obtain a
lighter sentence.
Hooper and Bracy presented several alibi witnesses.
Hooper’s witnesses included Mary Jean and Michael
Wilson, two friends of Hooper’s brother, who testified that
they had seen and spoken with Hooper on the day of the
murders at a flea market in Chicago. Nelson Booker, another
friend of Hooper’s brother, testified that he had seen and
spoken with Hooper at a New Year’s Eve party at a Chicago
club.
5. Closing Arguments and Verdict
The prosecutor’s closing argument reviewed all the
evidence. The prosecutor discussed the evidence supporting
the motive for Redmond’s murder, including the various
HOOPER V. SHINN 23
witnesses who knew about the potential Las Vegas business
and Tompkins’s testimony that Cruz said one of the business
partners had to be eliminated. He highlighted Marilyn’s
testimony about the details of the crimes, her pretrial
identifications, and her confident in-court identifications of
Hooper and Bracy as the killers. The prosecutor also
discussed the testimonies of Merrill, Kleinfeld, Tompkins,
Bauer, Campagnoni, Louie, and the Long’s Drugstore
employee. He reminded the jury about the gloves and
receipts found in McCall’s home and vehicle, the plane
tickets bought by Bauer, and the telephone records.
Hooper’s counsel maintained during closing that Hooper
was in Chicago at the time of the murders. He argued that
the testimonies of Merrill, Campagnoni, Louie, and Marilyn
were unreliable. He pointed out that Merrill had to stick to
his story, which was a lie, because “[i]f he change[d] it now,
he [could] be tried for first degree murder and sent to death
row.” Hooper’s counsel also emphasized the information in
the undisclosed reports, arguing that the officers’ reasons for
discounting the Bradfords and Ward as suspects were not
believable and that there was more evidence connecting
them to the Redmond crimes than there was against Hooper.
Hooper’s counsel did not focus on the photos. The
prosecution, however, specifically asked the jury to compare
the photos to Marilyn’s descriptions of the intruders.
Bracy’s counsel did not mention the Bradfords or Ward in
his closing statement.
The jury deliberated for three days and found both
defendants guilty as charged on all eleven counts, including
the two first-degree murder counts.
24 HOOPER V. SHINN
D. Sentencing
Hooper’s prior convictions were relevant for sentencing
purposes, and on January 6, 1983, the court held a hearing as
to those convictions. Hooper’s trial counsel, Grant Woods,
was not present, and Allen Gerhardt, another public
defender, appeared instead. The State presented evidence
that Hooper had been convicted on September 23, 1981, in
Illinois, on three counts of first-degree murder, three counts
of armed robbery, and three counts of aggravated
kidnapping, and the court so found later during Hooper’s
sentencing.
Before the hearing on aggravating and mitigating
circumstances under Arizona’s death statute, A.R.S. § 13-
703 (1982), 6 the prosecutor notified Hooper’s counsel that
the State intended to call one Phoenix officer and two
Chicago officers to testify at the aggravation and mitigation
hearing. The prosecutor stated that the officers would testify
about these statements made by Hooper: “They (the people
in Phoenix) thought Bracy was high-class, and me a low-
class dog. But those people in Phoenix weren’t that sharp,
they gave me $10,000 for killing Redmond and his family
and I would have done it for a couple hundred dollars a
person”; “I can’t handle myself out of the pen, can’t even get
a driver’s license, most of the time I’m just drunk. I’m better
off dead or in the pen because if I got out again I would
6
All citations to A.R.S. § 13-703 refer to the version in effect in
1982.
HOOPER V. SHINN 25
probably just kill someone again”; and “I like to shoot
people, it doesn’t bother me a bit.” 7
On February 4, 1983, the court conducted the
aggravation and mitigation hearing. Gerhardt also
represented Hooper at this hearing. The parties received
copies of Hooper’s presentence report (“PSR”) on the day of
the hearing, and before the start of the hearing, the court
granted a recess to allow counsel to review the PSR. The
PSR showed that Hooper, born in 1945, had a long adult
criminal history, starting when he was eighteen. Hooper
started out with a disorderly conduct conviction in 1963 and
then progressed to robbery and armed robbery convictions.
In 1969, he was charged with murder but pleaded guilty to
manslaughter. In 1977, he was convicted of attempted
murder. As noted, Hooper was convicted in Illinois in 1981
of three counts of first-degree murder, three counts of armed
robbery, and three counts of aggravated kidnapping, for
crimes committed in November 1980.
The prosecutor asked the court to find the existence of
aggravators based on the evidence in the record and
Hooper’s 1981 Illinois convictions. The prosecutor did not
bring up the details of Hooper’s other criminal convictions
or his admissions, but the court was aware of this
information because it was in the PSR and in the
supplemental PSR. Hooper’s counsel presented no
evidence.
7
As far as we can tell from the record, the State did not present these
admissions at trial because it agreed not to use them after Hooper moved
for their suppression. These admissions were disclosed to the trial judge
in a supplemental presentence report after the aggravation and mitigation
hearing but before sentencing.
26 HOOPER V. SHINN
Woods and Gerhardt appeared at Hooper’s sentencing on
February 11, 1983. Woods pleaded for mercy, urging the
judge that he should not “order a murder” and that a death
sentence was unnecessary because Hooper had already been
sentenced to death by an Illinois state court.
The court sentenced Hooper to life imprisonment on
Count One, and multiple consecutive sentences of thirty-five
years for Counts Four through Eleven. As to Counts Two
and Three for the first-degree murders of Redmond and
Phelps, the court determined that the State had established
five of the seven statutory aggravating factors under
Arizona’s death statute:
(1) Hooper had a prior conviction for which a life
sentence or death was imposable under Arizona law.
See A.R.S. § 13-703(F)(1). The court found that
Hooper’s three first-degree murder 1981 convictions
in Illinois satisfied this factor.
(2) Hooper had a prior felony conviction involving the
use or threat of violence on another person. See
A.R.S. § 13-703(F)(2). The court found that
Hooper’s three armed robbery and three aggravated
kidnapping 1981 convictions in Illinois satisfied this
factor.
(3) Hooper knowingly created a grave risk of death to
people other than the victims in the instant offense.
See A.R.S. § 13-703(F)(3). The court found this
factor established by the fact that Marilyn had been
placed in a position of grave risk of death given the
manner in which the crimes had been committed.
(4) Hooper committed the offense in expectation of
receiving something of pecuniary value. See A.R.S.
HOOPER V. SHINN 27
§ 13-703(F)(5). The court found this factor
established by the fact that Hooper and his
coconspirators were to receive money, or did receive
money, for the contract killing of Redmond.
(5) Hooper committed the offenses in an especially
heinous, cruel, or depraved manner. See A.R.S.
§ 13-703(F)(6). The court found this factor
established given the manner in which the crimes had
been committed. Redmond was “shot twice in the
head at close range after having been bound and
gagged,” and, after the shots were fired, his “throat
was cut from ear to ear with a large butcher-type
knife.” Phelps was “bound, gagged, [laid] across the
bed and shot at close range with a high caliber
pistol,” and she “did not die from the first wound and
was shot a second time.”
The court noted that Hooper presented no mitigating
evidence and determined that Hooper had failed to establish
the existence of any of the statutory mitigating factors. The
court concluded, “Based upon the findings of those five
aggravating circumstances, and the fact that there are no
mitigating circumstances sufficiently substantial to call for
leniency; as to Counts II and III, it is ordered that [Hooper
is] sentenced to die . . . .” 8
8
At the time of Hooper’s sentencing, Arizona law required the trial
judge (rather than a jury) to determine the existence of aggravating
circumstances. See A.R.S. § 13-703(B). The Supreme Court later held
that this process is unconstitutional in Ring v. Arizona, 536 U.S. 584, 609
(2002). But Ring does not apply retroactively. Schriro v. Summerlin,
542 U.S. 348, 358 (2004).
28 HOOPER V. SHINN
E. Procedural History
1. Direct Appeal
On June 10, 1985, the Arizona Supreme Court affirmed
Hooper’s convictions and sentence. State v. Hooper, 703
P.2d 482 (Ariz. 1985) (en banc). We discuss the relevant
portions of the decision—those concerning the alleged
Brady violations and Hooper’s death sentence.
The Arizona Supreme Court analyzed five alleged Brady
violations. Id. at 494 (explaining that Hooper’s
constitutional arguments were addressed in the companion
decision in State v. Bracy, 703 P.2d 464 (Ariz. 1985) (en
banc), decided the same day). Three of those alleged
violations are at issue: (1) the delayed disclosure of the
photos of the Bradfords and Ward; (2) the delayed disclosure
of the police reports on the Bradfords and Ward; and
(3) undisclosed benefits that the State and Ryan provided to
Merrill and his wife. Bracy, 703 P.2d at 471.
As for the photos, the Arizona Supreme Court found that
defense counsel objected to their admission, and the trial
court excluded them and instructed the jury to disregard
them. Id. at 472. Given those facts, the Arizona Supreme
Court concluded that “either [the] photographs were not
exculpatory or defense counsel did not want them in
evidence for some other reason” and “defendant did not
suffer prejudice from the nondisclosure of this evidence.”
Id.
The Arizona Supreme Court found that the police reports
were disclosed “during trial and defendant made use of
[them].” Id. Given this, the court determined that there was
no Brady violation as to the police reports. Id.
HOOPER V. SHINN 29
The defense had been informed prior to trial of certain
benefits the State and Ryan provided to Merrill. Other such
benefits came to light only after trial. Id. at 471. These
undisclosed benefits were:
1) Prior to trial, Dan Ryan, county attorney
investigator, made car payments for Arnold
Merrill’s wife, Cathy Merrill, totaling over
$800.00 for which Ryan received only partial
reimbursement;
2) Mrs. Merrill also received approximately
$3,000 from the Maricopa County Attorney’s
Protected Witness Program; [and]
3) Arnold Merrill made approximately
twenty-two long distance phone calls from
the county attorney’s office, some of which
were with Dan Ryan’s knowledge, others of
which Merrill made while left unattended in
Ryan’s custody, and none of which he paid
for.
Id. For convenience, we refer to these benefits discovered
after trial as the “Merrill benefits.”
Applying Brady, the Arizona Supreme Court determined
that the Merrill benefits were favorable to Hooper and had
been suppressed. Id. at 472. In analyzing Brady
“materiality,” the court determined that the Merrill benefits
had been specifically requested by the defense. Id. Thus,
under United States v. Agurs, 427 U.S. 97 (1976), the
evidence fell within the category of undisclosed evidence
that had been specifically requested by the defense, and
materiality turned on “whether the suppressed evidence
30 HOOPER V. SHINN
might have affected the outcome of the trial.” Bracy,
703 P.2d at 472 (citing Agurs, 427 U.S. 97).
Applying that standard, the Arizona Supreme Court
found that the Merrill benefits were not material for two
reasons. First, the evidence was “merely cumulative” of the
“wealth of impeaching evidence against Arnold Merrill.” Id.
at 473. “Such evidence included Merrill’s plea bargain with
the state; his extensive drug use; his past participation in
arson, burglary, kidnapping, and robbery; his past lies to
police officers; and his private out-of-jail visit with his wife
while being incarcerated for first degree murder.” Id. Given
this “wealth of impeaching evidence,” the Arizona Supreme
Court reasoned that it did “not believe the disclosure of
benefits equaling several thousand dollars would have had
any effect upon the outcome of the trial.” Id.
Second, the court considered the Merrill benefits in light
of the other evidence produced at trial and determined that
the evidence would not have affected the outcome. Id. The
court noted that Marilyn gave “strong eyewitness testimony”
and that the Merrill benefits, which could have been used to
impeach Merrill and Ryan, “had no effect upon [Marilyn’s]
key testimony.” Id. Additionally, Merrill’s testimony was
“not pivotal,” as several other witnesses “showed
defendant’s presence in Phoenix in early and late December,
his connection to Robert Cruz, and his participation in
Cruz’s conspiracy to kill Pat Redmond.” Id.
The Arizona Supreme Court found no Brady violation:
“[W]e do not believe that three additional pieces of
impeaching information regarding Arnold Merrill might
have affected the jury’s belief in Mrs. Redmond and the
other evidence. Nor would it have had any effect on
whatever opinion the jury had of Merrill’s credibility.” Id.
HOOPER V. SHINN 31
Regarding Hooper’s death sentence, the court
independently reviewed the record and vacated one
aggravating circumstance found by the sentencing court—
that Hooper created a grave risk of death to Marilyn under
A.R.S. § 13-703(F)(3)—and upheld the remaining four
aggravating circumstances. Hooper, 703 P.2d at 494–95;
see also Bracy, 703 P.2d at 481. The Arizona Supreme
Court then determined that there were no mitigating
circumstances and concluded that Hooper’s death sentence
was proper. Hooper, 703 P.2d at 495.
2. State Habeas Petitions
From 1986 through 2017, Hooper filed five state post-
conviction petitions. The Arizona Supreme Court
summarily denied the first four petitions and, as of the time
Hooper filed his replacement opening brief in our court, the
fifth remained pending. We discuss his state petitions
relevant to this appeal.
Philip Seplow was appointed to represent Hooper in his
first state petition, filed in 1986. Seplow also represented
Hooper in his second state petition, filed in 1992. In this
second proceeding, Seplow alleged that he had been
ineffective for failing to raise an ineffective assistance of
counsel claim in Hooper’s first post-conviction proceeding
based on trial counsel’s (Woods) failure to present
mitigation evidence at sentencing. The post-conviction
court denied the second petition and determined that
Hooper’s ineffective assistance of sentencing counsel claim
was procedurally barred. The Arizona Supreme Court
summarily denied Hooper’s petition for review.
In his fourth petition, filed in 1999, Hooper argued that
his death sentence was unconstitutional because it was based
in part on his 1981 Illinois convictions, which were likely
32 HOOPER V. SHINN
invalid. On October 19, 2005, the post-conviction court
rejected this argument because, at the time, the Illinois
convictions remained valid. Alternatively, the post-
conviction court found that, even assuming the Illinois
convictions were invalid, Arizona law required a death
sentence because there were still two valid aggravating
circumstances and no mitigating circumstances.
Hooper petitioned the Arizona Supreme Court for
review, arguing that a death sentence based on invalid
convictions violates the Eighth Amendment. Though
Hooper’s petition mentioned the Fourteenth Amendment, he
did not raise a due process argument based on his Illinois
convictions. And when Hooper supplemented his petition
by providing the Arizona Supreme Court with a citation to
Brown v. Sanders, 546 U.S. 212 (2006), he still did not allege
a due process violation. On April 20, 2006, the Arizona
Supreme Court summarily denied his petition.
3. Federal Habeas Petition
In 1998, Hooper filed the federal habeas petition that led
to this appeal. His supplemental petition included a claim
that his death sentence violated the Eighth and Fourteenth
Amendments because it was based on the likely invalid
Illinois convictions. The district court found that this claim
was unexhausted, ordered Hooper to withdraw it, and
entered a stay pending exhaustion of the claim. After
waiting more than five years, the district court vacated the
stay but determined that Hooper could move for leave to
amend his habeas petition once he exhausted his claim in
state court.
In 2006, having purportedly exhausted that claim,
Hooper sought leave to amend his petition to add it. The
district court denied Hooper’s motion to amend, finding that
HOOPER V. SHINN 33
the claim was meritless and thus amendment would be futile.
The district court also denied Hooper’s claim that his trial
counsel had provided ineffective assistance at sentencing by
failing to investigate and present mitigation evidence. The
district court determined that the claim was procedurally
defaulted because Hooper had failed to present it in his first
state post-conviction petition.
The district court ultimately denied Hooper’s petition in
2008. In its order denying the petition, the district court
analyzed thirteen alleged Brady violations, including, as
relevant here, the delayed disclosures of the photos and
police reports and the nondisclosure of the Merrill benefits.
In analyzing the Arizona Supreme Court’s decision on the
Brady claims, the district court determined the clearly
established law for purposes of the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA) was Brady,
Agurs, and United States v. Bagley, 473 U.S. 667 (1985).
Applying that clearly established law, the district court
found that the Arizona Supreme Court’s denial of the Brady
claims based on the photos was not objectively unreasonable
because the photos were not admitted at trial. It also found
that the Arizona Supreme Court’s decision regarding the
police reports was not objectively unreasonable because
Hooper used the reports during trial. The district court
determined that the Arizona Supreme Court’s decision that
the Merrill benefits were immaterial was not contrary to or
an unreasonable application of Supreme Court precedent.
The district court granted a certificate of appealability on the
Brady claims, and Hooper timely appealed.
In 2012, Hooper moved to stay the appeal and remand
the case pursuant to Martinez v. Ryan, 566 U.S. 1 (2012).
He also requested a remand for the district court to
reconsider its denial of leave to amend. A motions panel of
34 HOOPER V. SHINN
this court granted both requests. In part, the panel believed
remand appropriate because, while his case was pending on
appeal, the United States District Court for the Northern
District of Illinois had granted habeas relief to Hooper and
vacated his 1981 Illinois convictions. 9
On remand, the district court again denied relief on the
two remanded issues. It denied the ineffective assistance of
sentencing counsel claim as procedurally barred, as Hooper
failed to demonstrate “cause” under Martinez to excuse the
procedural default. The court again denied Hooper’s request
to amend the petition to include the Eighth and Fourteenth
Amendment claim because it was meritless and therefore
any amendment would be futile. Finally, the district court
granted Hooper’s request to expand the record with the
materials attached to his supplemental briefs submitted on
remand, denied his requests for discovery and an evidentiary
9
In 2013, the Seventh Circuit vacated the Illinois district court’s
denial of Hooper’s habeas petition. Hooper v. Ryan, 729 F.3d 782, 787
(7th Cir. 2013). The court determined that the Illinois Supreme Court
had unreasonably applied Batson v. Kentucky, 476 U.S. 79 (1986).
729 F.3d at 787. The court remanded the case to the district court for an
evidentiary hearing and an independent Batson determination as to what
had occurred at the trial, thirty-two years before. Id.
On remand, the prosecution declined an evidentiary hearing, and so
the district court granted the writ and vacated the Illinois convictions and
life sentences (the Governor of Illinois had commuted all Illinois death
sentences, including Hooper’s). Final Judgment, Hooper v. Ryan, No.
10-CV-01809 (N.D. Ill. Dec. 16, 2013), ECF. No. 81; see also People ex
rel. Madigan v. Snyder, 804 N.E.2d 546, 550, 560 (Ill. 2004) (denying
writ of mandamus challenging then-Governor’s grant of blanket
clemency to over 160 inmates who had been sentenced to death). Illinois
has not retried Hooper.
HOOPER V. SHINN 35
hearing, and granted a certificate of appealability on both
remanded issues.
Hooper filed a timely amended notice of appeal.
II. STANDARD OF REVIEW
We review the district court’s denial of a habeas petition
de novo. Reis-Campos v. Biter, 832 F.3d 968, 973 (9th Cir.
2016). This case is governed by AEDPA. See Lambert v.
Blodgett, 393 F.3d 943, 965 (9th Cir. 2004). Thus, we may
not grant habeas relief with respect to any claim adjudicated
on the merits in state court unless the state court’s decision
was “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States,” 28 U.S.C.
§ 2254(d)(1), or “based on an unreasonable determination of
the facts in light of the evidence presented in the State court
proceeding,” id. § 2254(d)(2).
A state-court decision is contrary to Supreme Court
precedent if “the state court arrives at a conclusion opposite
to that reached by th[e Supreme] Court on a question of law”
or “the state court confronts facts that are materially
indistinguishable from a relevant Supreme Court precedent
and arrives at a result opposite to [the Supreme Court’s].”
Williams v. Taylor, 529 U.S. 362, 405 (2000). “A decision
involves an ‘unreasonable application’ of clearly established
federal law under § 2254(d)(1) if it ‘identifies the correct
governing legal principle . . . but unreasonably applies that
principle to the facts of the prisoner’s case.’” Vega v. Ryan,
757 F.3d 960, 965 (9th Cir. 2014) (per curiam) (alteration in
original) (quoting Williams, 529 U.S. at 413). “The
‘unreasonable application’ clause requires the state court
decision to be more than incorrect or erroneous. The state
court’s application of clearly established law must be
36 HOOPER V. SHINN
objectively unreasonable.” Lockyer v. Andrade, 538 U.S.
63, 75 (2003) (citation omitted).
“[C]learly established Federal law” under AEDPA
includes only the Court’s decisions as of the time of the
relevant state-court adjudication on the merits. See Greene
v. Fisher, 565 U.S. 34, 38 (2011). “If no Supreme Court
precedent creates clearly established federal law relating to
the legal issue the habeas petitioner raised in state court, the
state court’s decision cannot be contrary to or an
unreasonable application of clearly established federal law.”
Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004).
Moreover, “[w]hen a state court has applied clearly
established federal law to reasonably determined facts in the
process of adjudicating a claim on the merits, a federal
habeas court may not disturb the state court’s decision unless
its error lies ‘beyond any possibility for fairminded
disagreement.’” Shinn v. Kayer, 592 U.S. ----, 2020 WL
7327827, at *1 (2020) (per curiam) (quoting Harrington v.
Richter, 562 U.S. 86, 103 (2011)).
Under § 2254(d)(2), “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).
When a district court denies leave to amend based on a
determination that the proposed claim would be futile, we
review the determination of futility de novo. Murray v.
Schriro, 745 F.3d 984, 1015 (9th Cir. 2014). We also review
de novo a district court’s procedural default determinations.
Runningeagle v. Ryan, 825 F.3d 970, 978 (9th Cir. 2016).
HOOPER V. SHINN 37
III. DISCUSSION
We first address the three certified issues: (1) whether
nondisclosure of the Merrill benefits and delayed disclosures
of the photos and reports violated Hooper’s due process
rights under Brady 10; (2) whether the district court erred in
denying him leave to amend his petition to add a claim that
his death sentence violates the Eighth and Fourteenth
Amendments because his sentence was based in part on
invalid Illinois convictions; and (3) whether Martinez
excuses the procedural default of his ineffective assistance
of sentencing counsel claim. We then address the two
uncertified issues: (1) whether Hooper was
unconstitutionally shackled at trial; and (2) whether the
unconstitutional shackling caused him to involuntarily
waive his right to be present at voir dire because it forced
him to choose between two constitutional rights. We
construe Hooper’s briefing on these uncertified issues as a
request to expand the certificate of appealability (COA). See
Ninth Circuit Rule 22-1(e).
A. Brady Claims
The last state-court adjudication on the merits of
Hooper’s Brady claims is the Arizona Supreme Court’s
10
Although Hooper alleged thirteen Brady violations in the district
court, he discusses only the photos, police reports, and Merrill benefits
in his briefs. And he fails to present any argument that any alleged
nondisclosures, other than those three, were material under Brady. The
State argues in its answering brief that Hooper abandoned all of his
Brady claims other than the three he discusses in his opening brief, and
Hooper does not dispute this argument in his reply brief. Accordingly,
Hooper has preserved only the Brady claims as to the photos, police
reports, and Merrill benefits. See Petrocelli v. Angelone, 248 F.3d 877,
880 n.1 (9th Cir. 2001) (holding that a petitioner in a capital case
abandoned several claims for lack of argument supporting the claims).
38 HOOPER V. SHINN
decision on direct appeal. See Hooper, 703 P.2d at 494; see
also Bracy, 703 P.2d at 471–74. The decision was issued on
June 10, 1985, and thus clearly established law includes only
the Supreme Court decisions issued by that date. See
Greene, 565 U.S. at 38. Because Bagley, 473 U.S. 667, was
issued on July 2, 1985, it was not clearly established. 11 Thus,
the district court erred in relying on Bagley. 12
The clearly established law at the time of the Arizona
Supreme Court’s decision was Brady, 373 U.S. 83 (1963),
and Agurs, 427 U.S. 97 (1976). Brady established the three
elements of a due process violation based on the suppression
of evidence: (1) the evidence is favorable to the accused,
(2) the prosecution suppressed the evidence, and (3) the
evidence is “material.” 373 U.S. at 87. In Agurs, the Court
differentiated between three nondisclosure situations to
which Brady applies: (1) where the undisclosed evidence
shows “that the prosecution’s case includes perjured
testimony and that the prosecution knew, or should have
known, of the perjury,” 427 U.S. at 103, (2) where the
defense makes a specific request, and the prosecutor fails to
provide responsive evidence, id. at 104, and (3) where the
defense makes a general request or no request, and the
prosecutor suppresses favorable evidence, id. at 106–07.
11
The State appears to concede that Bagley was clearly established.
We reject this concession because parties cannot waive § 2254(d)’s
standard of review. Amado v. Gonzalez, 758 F.3d 1119, 1133 n.9 (9th
Cir. 2014) (“[The court has] the obligation to apply the correct [AEDPA]
standard, for the issue is non-waivable.”).
12
We note that the district court did not have the benefit of Greene
v. Fisher, 565 U.S. 34 (2011), when it identified the applicable clearly
established law.
HOOPER V. SHINN 39
Hooper’s claims fall within situation (2), “specific request”
cases.
Agurs established different materiality standards for
situations (1) and (3). Agurs did not set forth a materiality
standard for situation (2), but the Court did explain that
“material” means that “the suppressed evidence might have
affected the outcome of the trial.” Id. at 104. 13 Thus, even
though the Supreme Court had not announced a precise
materiality standard for “specific request” cases at the time
of the Arizona Supreme Court’s decision, Brady and Agurs
had established governing legal principles that apply in such
cases—a defendant must show that the evidence was
suppressed, favorable, and material, meaning the evidence
might have affected the outcome of the trial. See Brady,
373 U.S. at 87; Agurs, 427 U.S. at 104. These legal
principles are the applicable clearly established law for
AEDPA purposes here. See Lockyer, 538 U.S. at 71–72
(“‘[C]learly established Federal law’ under § 2254(d)(1) is
the governing legal principle or principles set forth by the
Supreme Court at the time the state court renders its
decision.”). 14
13
The Supreme Court later clarified in Bagley that Agurs did not
establish a materiality standard for “specific request” cases. Bagley,
473 U.S. at 681. Rather, the Court explained that its statement in Agurs
that “Brady indicates that implicit in the requirement of materiality is a
concern that the suppressed evidence might have affected the outcome
of the trial,” was merely an explanation of the “meaning of the term
‘materiality.’” Id. at 681 n.12 (citation omitted).
14
Hooper identifies no Supreme Court precedent in existence at the
time of the Arizona Supreme Court’s decision that established a more
favorable materiality standard for “specific request” cases than the
materiality principle in Agurs, nor are we aware of any. Thus, even if
we are somehow incorrect in our determination that there was clearly
40 HOOPER V. SHINN
1. AEDPA Analysis Regarding Merrill Benefits
The Arizona Supreme Court’s decision on the Brady
claim regarding the Merrill benefits was not an unreasonable
application of clearly established law under § 2254(d)(1).
The court identified the correct governing legal principles in
Brady and Agurs. See Bracy, 703 P.2d at 472. The Arizona
Supreme Court reviewed the trial evidence and determined
that Merrill’s testimony was “not pivotal.” 15 Id. at 473.
Rather, it determined that Marilyn’s testimony was crucial.
Id. The Arizona Supreme Court noted that her testimony
was “particularly strong,” and it found that evidence other
than Merrill’s testimony “showed defendant’s presence in
Phoenix in early and late December, his connection to
Robert Cruz, and his participation in Cruz’s conspiracy to
kill Pat Redmond.” Id. The court also determined that the
Merrill benefits would not have affected the jury’s view of
Merrill’s credibility because the “defense possessed and
used a wealth of impeaching evidence against” him. Id. The
court ultimately concluded that Hooper failed to meet
Agurs’s materiality standard, stating that “we do not believe
that three additional pieces of impeaching information
established federal law on this issue in June 1985, our error could inure
only to Hooper’s benefit; as without such clearly established federal law,
the Arizona Supreme Court could not have unreasonably applied it, and
Hooper would automatically lose on this issue under AEDPA. See
Brewer, 378 F.3d at 954 (affirming the denial of a habeas petition under
AEDPA for lack of clearly established Supreme Court precedent).
15
During his closing, the prosecutor mentioned Merrill’s testimony
in reviewing all of the evidence, but he did not highlight it. This supports
that Merrill’s testimony was not crucial. See Barker v. Fleming,
423 F.3d 1085, 1100 (9th Cir. 2005) (“A useful measurement of the
importance of [a witness] and the materiality of the withheld
impeachment evidence is the lack of emphasis the prosecutor placed on
his testimony.”).
HOOPER V. SHINN 41
regarding Arnold Merrill might have affected the jury’s
belief in Mrs. Redmond and the other evidence.” Id.The Arizona Supreme Court properly found that
Marilyn’s testimony was key. Marilyn was an eyewitness to
the crimes and was certain in her trial identifications of
Hooper and Bracy. She had also identified both in pretrial
lineups. As the court noted: “This evidence was particularly
strong because Mrs. Redmond had ample opportunity to
view all three men in her home.” Id. The court also properly
found that Merrill’s testimony was “merely corroborative
and not pivotal.” Id. As the court found, the State’s case
was supported by evidence well beyond Merrill’s testimony.
In addition to Marilyn’s testimony, the testimonies of Louie,
Campagnoni, Bauer, and Tompkins, along with the State’s
other evidence discussed above, all supported Hooper’s
guilt.
We find reasonable the Arizona Supreme Court’s
determination that the Merrill benefits would not have
affected the jury’s view of Merrill’s credibility. Merrill was
vigorously impeached. The jury knew that Merrill was a
known liar, self-interested criminal, and drug dealer and
user. The jury also knew that he had lied to the police and
had strong motives to lie, including to avoid a potential death
sentence.
Given the overwhelming evidence of Hooper’s guilt
presented at trial, and the improbability that the Merrill
benefits would have affected the jury’s view of Merrill, the
Arizona Supreme Court reasonably concluded that Hooper
failed to show that the Merrill benefits “might have affected
the outcome of the trial.” Agurs, 427 U.S. at 104. Thus, the
Arizona Supreme Court did not unreasonably apply clearly
established law, and we are barred from reviewing Hooper’s
claim based on the Merrill benefits under § 2254(d)(1).
42 HOOPER V. SHINN
Alternatively, Hooper argues that we can review his
claim on the Merrill benefits under § 2254(d)(2) because the
Arizona Supreme Court’s finding that the Merrill benefits
were cumulative impeachment evidence was an
unreasonable factual determination. 16 A finding that
evidence is cumulative is a factual determination subject to
§ 2254(d)(2). See Vega, 757 F.3d at 974 (“We further
conclude that the state court’s findings that Father Dan’s
testimony would have been cumulative and would have had
no effect on the verdict is an unreasonable determination of
the facts in light of the evidence presented in the state court
proceedings.”).
The Arizona Supreme Court’s determination that the
Merrill benefits were cumulative impeachment evidence
was not unreasonable. As discussed above, the defense
severely impeached Merrill. The evidence portrayed him as
a serial liar with strong incentives to fabricate his testimony
against Hooper and Bracy to avoid a potential death sentence
for his own involvement in the Redmond crimes and to
continue to receive favorable treatment from the State. The
undisclosed Merrill benefits would have shown that Merrill
received monetary benefits from the State and Ryan, making
it more likely that he was biased and motivated to lie. But
considering the impeachment evidence that was presented, it
was already firmly established that Merrill was biased and
motivated to lie. Thus, the Arizona Supreme Court’s
determination was reasonable.
16
Although Hooper failed to raise this argument in the district court,
we address it because the State responds to the argument and does not
assert waiver. See United States v. Doe, 53 F.3d 1081, 1082–83 (9th Cir.
1995) (reviewing the merits of a claim when the government failed to
assert waiver).
HOOPER V. SHINN 43
Our conclusion is supported by Ninth Circuit cases in
which we determined that undisclosed impeachment
evidence was cumulative under similar circumstances. For
example, in Gentry v. Sinclair, 705 F.3d 884 (9th Cir. 2013),
the prosecution suppressed evidence that the state had
intervened with the parole board to secure a witness’s parole.
Id. at 902–03. We held that this impeachment evidence
against the witness was cumulative because the witness had
been substantially impeached at trial through evidence of his
“many past crimes, including his conviction for perjury,”
and “his extensive history of using false names.” Id. at 903;
see also id. at 904; see also Barker v. Fleming, 423 F.3d
1085, 1096–97 (9th Cir. 2005) (holding that suppressed
convictions were cumulative impeachment evidence in light
of other evidence showing that the witness had a “penchant
for lying,” had been in and out of jail several times, and had
made a deal with the state on three other crimes).
In sum, AEDPA bars our review of Hooper’s Brady
claim as to the undisclosed Merrill benefits. But as
discussed below, even if we were to review Hooper’s Brady
claim on the Merrill benefits de novo, it would fail because
there is no reasonable probability that the trial outcome
would have been different had the evidence been disclosed.
2. AEDPA Analysis Regarding Police Reports
Hooper argues that we may review the Arizona Supreme
Court’s decision on the delayed disclosure of the police
reports related to the Bradfords and Ward because the
Arizona Supreme Court unreasonably applied clearly
established law under § 2254(d)(1). Hooper cites Brady and
Giglio v. United States, 405 U.S. 150 (1972), as the
applicable clearly established law. But those cases did not
clearly establish that a delayed disclosure is a Brady
44 HOOPER V. SHINN
violation where the defense had the opportunity to use the
evidence at trial. Nor has any Supreme Court case so held.
Because there was no clearly established law governing
Brady claims based on such delayed disclosures, the Arizona
Supreme Court’s decision “cannot be contrary to or an
unreasonable application of clearly established federal law.”
Brewer, 378 F.3d at 955. AEDPA therefore prevents us
from reviewing the Arizona Supreme Court’s decision on the
police reports.
3. AEDPA Analysis Regarding Photos
Like the police reports, the prosecution disclosed the
photos to Hooper during trial, and he used them at trial.
Thus, Hooper’s argument that the Arizona Supreme Court’s
decision on the photos was an unreasonable application of
clearly established law fails for the same reason his
argument on the police reports fails—there was no clearly
established law holding that a delayed disclosure is a Brady
violation where the defense had the opportunity to use the
evidence at trial.
Hooper also asserts, however, that we may review the
Arizona Supreme Court’s decision on the photos because its
decision was based on the unreasonable factual
determination that no photos had been admitted at trial. 17 In
analyzing the suppression of the photos, the Arizona
Supreme Court focused on the specific incident during trial
when defense counsel objected to Detective Quaife’s
testimony about the photos on redirect. See Bracy, 703 P.2d
17Hooper did not raise this argument in the district court. Even so,
we consider it because the State fails to assert waiver. See Doe, 53 F.3d
at 1082–83.
HOOPER V. SHINN 45
at 472. This incident occurred before the photos had been
admitted.
Because we are unable to determine from the record the
specific argument that was made to the Arizona Supreme
Court with respect to the photos, it is unclear whether the
court’s reasoning was based on an unreasonable factual
determination. We therefore assume, without deciding, that
the Arizona Supreme Court’s decision on the photos was
based on an unreasonable factual determination. This
assumption does not change the outcome on the Brady
claims because, as discussed below, Hooper’s claims fail
even on de novo review.
4. De Novo Review of Brady Claims
Hooper argues that we may review all of his Brady
claims de novo, and that he is entitled to relief under de novo
review. We disagree because we have concluded above that
AEDPA bars our review of the police reports and the Merrill
benefits. But as we next discuss, even assuming we could
review all of his Brady claims de novo, they would fail.
Hooper satisfies two of the three Brady elements—the
evidence was favorable and (at least partially) suppressed.
See 373 U.S. at 87. Thus, his Brady claims turn on the
prejudicial effect or materiality of the photos, police reports,
and Merrill benefits. 18
“[E]vidence is material only if there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
18
“[F]or Brady purposes, [‘prejudicial’ and ‘material’] have come
to have the same meaning.” Benn v. Lambert, 283 F.3d 1040, 1053 n.9
(9th Cir. 2002).
46 HOOPER V. SHINN
different. A ‘reasonable probability’ is a probability
sufficient to undermine confidence in the outcome.” Bagley,
473 U.S. at 682. We “must examine the trial record, evaluate
the withheld evidence in the context of the entire record, and
determine in light of that examination whether there is a
reasonable probability that, had the evidence been disclosed,
the result of the proceeding would have been different.”
Turner v. United States, 137 S. Ct. 1885, 1893 (2017)
(quotation marks, alterations, and citations omitted). A
Brady violation occurs when the undisclosed favorable
evidence “could reasonably be taken to put the whole case
in such a different light as to undermine confidence in the
verdict.” Kyles v. Whitley, 514 U.S. 419, 435 (1995).
“[M]ateriality of the withheld evidence [must] be
analyzed cumulatively . . . .” Barker, 423 F.3d at 1094. We
first examine the “force and nature of the withheld evidence
item by item,” and then “we consider the cumulative effect
of the suppressed evidence.” Id. at 1099. “Gauging the
collective impact of the withheld evidence requires us to step
back and consider the strength of the prosecution’s case
. . . .” Id.The prosecution provided Hooper with the photos and
police reports during its case-in-chief, about three weeks
before Hooper presented his defense. Hooper used the
evidence to show that the Bradfords and Ward should have
been treated as suspects in the Redmond crimes and that the
officers unreasonably discounted them as suspects. Hooper
claims that earlier disclosure of the photos would have
allowed him to (1) show the jury the similarities between the
brown jacket worn by Michael Bradford to the one worn by
the intruder as described by Marilyn and (2) emphasize the
similarities between Hooper and the Bradfords and Ward to
show that Marilyn had mistakenly identified Hooper. But
HOOPER V. SHINN 47
Hooper had the opportunity to use the photos for these
purposes. Hooper also asserts that earlier disclosure of the
photos and reports would have changed his defense theory
and opening statement, but he offers no specifics on how his
theory or opening statement would have changed. 19
Thus, Hooper either used the photos and reports or had a
meaningful opportunity to do so. And he fails to show how
earlier disclosure would have made this evidence more
useful to his defense. We discern no prejudice from the
delayed disclosure of the photos and reports. See United
States v. Gordon, 844 F.2d 1397, 1403 (9th Cir. 1988)
(holding no Brady violation because “defendants had
substantial opportunity to use the documents and to cure any
prejudice caused by the delayed disclosure”).
Turning to the Merrill benefits, Hooper could have used
this evidence to impeach Merrill. But the defense presented
overwhelming evidence discrediting Merrill and showing he
had personal motives to lie. The jury knew that Merrill was
a serial liar, a criminal, and had received significant benefits
from the State for his cooperation, including a deal that
ensured he would not be sentenced to death for the Redmond
murders and an out-of-jail visit so he could have sex with his
wife. Given the wealth of impeachment evidence that was
presented, the nondisclosure does not undermine confidence
in the verdict. At best, it is exceedingly unlikely that
additional evidence showing that Merrill and his wife
received money and other benefits from Ryan and the State
19
And, of course, as noted above, Marilyn testified that the men in
the photos were not the men who invaded her home, murdered her
husband and mother, and tried to murder her.
48 HOOPER V. SHINN
equaling several thousand dollars would have changed the
jury’s view of Merrill’s credibility.
To the extent the Merrill benefits might have suggested
that the State’s investigation was tainted because Ryan
engaged in improper conduct, this theory was presented to
the jury and supported by other, more compelling evidence.
The jury knew that Ryan had taken Merrill out of jail to have
sex with his wife, had stopped his tape-recorded interview
with Merrill more than twenty times for no apparent reason
other than to coach Merrill on what he should say, threatened
a witness with physical violence, directed a witness to lie to
the police and gave that witness money, and lied to a
probation officer to secure a reduced sentence for
Campagnoni. Thus, the jury had many reasons to question
the integrity of the State’s investigation based on Ryan’s
actions, and the Merrill benefits would have simply added
another reason to the already compelling evidence.
Having examined the withheld evidence individually, we
now consider its cumulative effect, which “requires us to
step back and consider the strength of the prosecution’s
case.” Barker, 423 F.3d at 1099.
Marilyn was the State’s key witness. Her in-court
identifications of Hooper and Bracy as the intruders were
certain and unwavering. She had years of work experience
in recognizing people by their physical features, and during
the encounter she had several opportunities to look at the
intruders’ faces. Her testimony was corroborated by
substantial evidence, other than Merrill’s testimony, which
showed that Hooper and Bracy were in Phoenix on New
Year’s Eve and involved in the Redmond crimes. This
evidence that Hooper and Bracy were both in Phoenix on
HOOPER V. SHINN 49
New Year’s Eve, and thus, that they had created fake alibis, 20
provided additional evidence of Hooper’s guilt. See United
States v. Dorsey, 677 F.3d 944, 950 (9th Cir. 2012) (“That
Dorsey tried to create a fake alibi was not merely ineffective,
but also stands high in the hierarchy of evidence tending to
show guilt.”).
It is at best unlikely that earlier disclosure of the photos
and reports, and disclosure of the Merrill benefits, would
have affected the jury’s view of the overwhelming evidence
supporting Hooper’s guilt. The photos and reports were
presented to the jury, and Hooper used them to challenge the
officers’ reasons for discounting the Bradfords and Ward as
suspects in the Redmond crimes and to argue that the men
should have been treated as suspects. Hooper fails to show
how the delayed disclosures had any effect on the evidence
supporting his guilt.
The Merrill benefits would have given the jury additional
reasons to disbelieve Merrill and to question the State’s
investigation. But Merrill was not a crucial witness.
Hooper’s guilt was supported by significant other evidence,
and further impeaching Merrill would not have affected
Marilyn’s key testimony or the testimonies of other
important witnesses. The defense presented extensive
evidence portraying Ryan as an unscrupulous investigator.
Hooper used the evidence to suggest that the State’s
investigation was tainted, including that Ryan had
improperly influenced Marilyn’s pretrial identifications of
Hooper and Bracy. The jury rejected that theory. It is at best
unlikely that additional evidence that Ryan and the State
gave benefits to Merrill and his wife would have affected the
20
The jury obviously did not believe the alibis.
50 HOOPER V. SHINN
jury’s view of Marilyn’s crucial testimony or the testimonies
of witnesses other than Merrill.
In sum, earlier disclosure of the photos and reports and
disclosure of the Merrill benefits would not have “put the
whole case in such a different light as to undermine
confidence in the verdict.” Kyles, 514 U.S. at 435. The State
had a strong case, even without Merrill’s testimony. The
jury knew about the photos and reports, Hooper used them
in his defense, and the jury rejected his arguments. The jury
knew that Merrill was a self-interested liar, and that Ryan
was an unscrupulous investigator. Thus, “[t]he difference
between the story . . . that the jury knew and that which
would have been presented with the withheld evidence is not
significant.” Barker, 423 F.3d at 1101. We are therefore
confident in the verdict and conclude that, even assuming
AEDPA does not bar our review of Hooper’s Brady claims,
the delay in producing the photos and police reports, and the
failure to disclose the Merrill benefits, were not material.
B. Motion for Leave to Amend—Eighth and Fourteenth
Amendment Claims
Hooper requested leave to amend his petition to include
a claim that his death sentence violates the Eighth and
Fourteenth Amendments because the sentence was based on
his invalid Illinois convictions. The district court denied his
request as futile. The district court reviewed the state post-
conviction court’s 2005 decision and found that its rejection
of Hooper’s claim was neither contrary to nor an
unreasonable application of clearly established law under
AEDPA. The post-conviction court rejected the claim
because, even assuming the Illinois convictions were
invalid, Hooper failed to show he would have probably
received a sentence less than death because there were still
two valid aggravating factors and no mitigating factors. The
HOOPER V. SHINN 51
district court determined that the post-conviction court had
properly reweighed the aggravating and mitigating factors or
conducted a harmless error analysis in accordance with
Supreme Court precedent. The district court concluded that
any amendment would be futile because Hooper failed to
overcome AEDPA deference as to his claim.
“The court should freely give leave [to amend] when
justice so requires.” Fed. R. Civ. P. 15(a)(2); see Bonin v.
Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (applying Rule
15(a) in a habeas case). “Futility of amendment can, by
itself, justify the denial of a motion for leave to amend.”
Bonin, 59 F.3d at 845. Amendment is futile if the claim
sought to be added is not viable on the merits. See Murray,
745 F.3d at 1015.
We agree with the district court that amendment would
be futile. We first consider Hooper’s claim that his Eighth
Amendment rights were violated because his death sentence
was based on his invalid Illinois convictions. We then
discuss Hooper’s Fourteenth Amendment due process
claim. 21
1. Eighth Amendment Claim
Under AEDPA, we review the post-conviction court’s
decision rejecting Hooper’s Eighth Amendment claim. See
id. at 1006 (looking through the Arizona Supreme Court’s
21
Although the district court failed to specifically address Hooper’s
Fourteenth Amendment claim, we exercise our discretion and consider
the claim because it is a purely legal question that can be decided on the
record developed below. See Quinn v. Robinson, 783 F.2d 776, 814 (9th
Cir. 1986) (“We have discretion to decide whether to address an issue
that the district court did not reach if the question is a purely legal one
and the record has been fully developed prior to appeal . . . .”).
52 HOOPER V. SHINN
decision to the last reasoned state-court decision). In doing
so, we apply the clearly established law that, when a death
sentence is based in part on an invalid aggravating
circumstance, an appellate court can uphold the sentence if
it either reweighs the aggravating and mitigating
circumstances or reviews the sentence for harmless error.
Clemons v. Mississippi, 494 U.S. 738, 741, 751–54 (1990).
Under Arizona’s death penalty statute, the court “shall
impose a sentence of death if the court finds one or more of
the aggravating circumstances enumerated in [the statute]
and that there are no mitigating circumstances sufficiently
substantial to call for leniency.” A.R.S. § 13-703(E).
“[U]nder A.R.S. § 13-703(E), the trial court must impose a
sentence of death if it finds the existence of one statutory
aggravating factor and does not find the existence of any
mitigating factor . . . . A death sentence is thus required
regardless of the trial court’s belief that a life sentence is
appropriate.” State v. Beaty, 762 P.2d 519, 533–34 (Ariz.
1988); see also State v. Jordan, 672 P.2d 169, 173 (Ariz.
1983) (en banc) (“Where one or more statutory aggravating
circumstance is found, and no mitigation exists, the statute
requires the death penalty.” (quoting State v. Gretzler,
659 P.2d 1, 13 (Ariz. 1983) (en banc))). This provision of
Arizona’s death penalty statute has been upheld as
constitutional by the Supreme Court. See Walton v. Arizona,
497 U.S. 639, 651–52 (1990) (plurality opinion) (evaluating
Arizona’s death penalty statute and reaffirming that if a
sentencer was not precluded from considering all relevant
mitigation, a “statute requiring the imposition of the death
penalty if aggravating circumstances were found to exist but
no mitigating circumstances were present” is constitutional),
overruled on other grounds by Ring v. Arizona, 536 U.S. 584(2002).
HOOPER V. SHINN 53
Hooper argues that the state court’s decision was
contrary to Supreme Court precedent because it
automatically affirmed his death sentence. We disagree.
The state court first determined that, even if Hooper’s
Illinois convictions were invalid, two aggravating
circumstances remained—he committed the offense in
expectation of receiving something of pecuniary value under
A.R.S. § 13-703(F)(5) and in an especially heinous, cruel, or
depraved manner under A.R.S. § 13-703(F)(6). The court
then found that there were no mitigating circumstances.
Because there were two aggravators and no mitigators, the
court determined that the sentencer would have been
required to impose a death sentence under Arizona law, and
thus Hooper failed to show that the invalidity of his Illinois
convictions would have changed his sentence.
The state court conducted a harmless error analysis in
accordance with Supreme Court precedent. See Clemons,
494 U.S. at 741, 751–54. It properly determined that any
error in including Hooper’s invalid convictions was
harmless because Arizona law requires a death sentence if
there is at least one aggravating circumstance and no
mitigating circumstances. See Jordan, 672 P.2d at 173.
Thus, Hooper fails to show that the state court’s decision was
contrary to clearly established law. 22
22
Hooper makes no claim that the state post-conviction court failed
to apply the “beyond a reasonable doubt” harmless error standard. See
Clemons, 494 U.S. at 753. Even if he had, he would have had to
overcome our rule that, “in AEDPA cases, we apply a presumption that
state courts know and follow the law and accordingly give state-court
decisions the benefit of the doubt.” Poyson v. Ryan, 879 F.3d 875, 889
(9th Cir. 2018) (quotation marks and citations omitted). More
importantly, as discussed below, even if Hooper could overcome
AEDPA, his claim would fail because he cannot show actual prejudice.
54 HOOPER V. SHINN
Hooper also argues that the post-conviction court’s
decision was based on an unreasonable factual determination
that there were no mitigating circumstances. We reject this
argument because the court’s factual determination was
reasonable. During the aggravation and mitigation hearing,
Hooper presented no evidence. During sentencing, the court
noted that “Hooper neither presented any evidence, nor had
a statement to make concerning mitigating factors or any
other fac[e]t of his presentation in court.” The Arizona
Supreme Court agreed that Hooper presented no mitigating
circumstances. Hooper, 703 P.2d at 495 (“The trial court
also considered all possible mitigating circumstances and
found none to exist. We agree.”). And Hooper identifies no
mitigating circumstances that the sentencing court or the
Arizona Supreme Court found. The state post-conviction
court’s factual determination was not unreasonable (and
indeed was compelled).
Moreover, even if Hooper could show that the state
court’s decision was contrary to clearly established law
because it automatically affirmed his sentence, his claim
would be unavailing because he fails to show actual
prejudice.
“[Federal] habeas petitioners are not entitled to habeas
relief based on trial error unless they can establish that it
resulted in actual prejudice.” Davis v. Ayala, 576 U.S. 257,
267 (2015) (quotation marks omitted) (quoting Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993)). “Under this test,
relief is proper only if the federal court has grave doubt about
whether a trial error of federal law had substantial and
injurious effect or influence in determining the jury’s
verdict.” Id. at 267–68 (quotation marks omitted) (quoting
O’Neal v. McAninch, 513 U.S. 432, 436 (1995)); see also
Beardslee v. Brown, 393 F.3d 1032, 1041–44 (9th Cir. 2004)
HOOPER V. SHINN 55
(applying Brecht’s harmless error test to an Eighth
Amendment error based on the improper consideration of
invalid aggravating factors).
Two valid aggravating circumstances remain after
excluding the two that were based on the invalid Illinois
convictions. 23 Hooper makes no claim that the invalid
convictions in any way tainted the two remaining
aggravators, nor could he. Under Arizona law, as long as
Hooper had at least one valid aggravator, he was eligible for
the death penalty. See A.R.S. § 13-703(E). Because the
state court found no mitigators, and we must defer to that
finding under AEDPA, Arizona law requires the imposition
of a death sentence. See Beaty, 762 P.2d at 533–34. Thus,
Hooper’s claim would fail because he suffered no prejudice
from the introduction of the invalid convictions.
Because Hooper’s Eighth Amendment claim is not
viable, the district court properly denied him leave to amend
his petition based on futility.
2. Fourteenth Amendment Claim
Hooper primarily argues that, under Brown v. Sanders,
546 U.S. 212 (2006), the introduction of the invalid Illinois
convictions during sentencing violated his due process rights
under the Fourteenth Amendment, mandating the reversal of
his death sentence. Thus, according to Hooper, the Arizona
Supreme Court’s summary dismissal of his due process
claim was contrary to or an unreasonable application of
23
Under A.R.S. § 13-703(F)(5), that Hooper “committed the
offense[s] as consideration for the receipt or in expectation of the receipt
of anything of pecuniary value,” Hooper, 703 P.2d at 494, and under
A.R.S. § 13-703(F)(6), that Hooper “committed the offense[s] in an
especially heinous, cruel, or depraved manner,” id. at 495.
56 HOOPER V. SHINN
Sanders. Hooper’s claim is not viable, but we first address
the parties’ dispute over whether Sanders was clearly
established for AEDPA purposes.
Sanders was decided after the post-conviction court’s
2005 decision but before the Arizona Supreme Court’s
summary dismissal. Therefore, whether Sanders was clearly
established depends on whether the Arizona Supreme
Court’s summary denial was the last state-court adjudication
on the merits. See Greene, 565 U.S. at 38–40 (holding that
clearly established law under AEDPA includes only
Supreme Court decisions announced after the last state-court
adjudication on the merits).
We need not decide whether Sanders was clearly
established because, even if it were, Hooper’s due process
claim is not viable. 24
Hooper argues that Sanders established a categorical rule
that irrelevant evidence introduced at sentencing is a due
24
We will assume for our discussion that Hooper exhausted his due
process claim and that it was adjudicated on the merits by the state court.
We note, however, that Hooper likely procedurally defaulted his due
process claim because he did not raise it in his petition for review to the
Arizona Supreme Court. See Ariz. R. Crim. P. 32.2(a)(3) (precluding
relief on the ground that a sentence was imposed in violation of the
Constitution when that ground has been “waived at trial or on appeal, or
in any previous post-conviction proceeding”); Murray, 745 F.3d at 1016
(“[T]he Supreme Court has recognized Arizona Rule of Criminal
Procedure 32.2(a)(3) as an independent and adequate state ground that
bars federal habeas review of constitutional claims.”). Hooper
supplemented his petition and provided a citation to Sanders, but he did
not allege a due process violation under Sanders. This was likely
insufficient to exhaust his due process claim. See Powell v. Lambert,
357 F.3d 871, 874 (9th Cir. 2004) (“A petitioner has exhausted his
federal claims when he has fully and fairly presented them to the state
courts.”). But the State has not asserted procedural default.
HOOPER V. SHINN 57
process violation that mandates reversal of a sentence, and
therefore, the state court’s failure to reverse his sentence was
contrary to or an unreasonable application of Sanders. We
disagree because Sanders did not establish any such rule.
Hooper’s argument is based on the following statement
in Sanders: “If the presence of the invalid sentencing factor
allowed the sentencer to consider evidence that would not
otherwise have been before it, due process would mandate
reversal without regard to the rule we apply here.” 546 U.S.
at 220–21. First, this statement is not the holding of Sanders
but was made in response to the dissent’s criticism of
Sanders’s holding. Id.Second, the Supreme Court held in Romano v.
Oklahoma, 512 U.S. 1 (1994), that, in capital sentencing
proceedings, the introduction of irrelevant and prejudicial
evidence violates the Due Process Clause of the Fourteenth
Amendment when admission of the evidence “so infected
the sentencing proceeding with unfairness as to render the
jury’s imposition of the death penalty a denial of due
process.” Id. at 12. Nothing in Sanders suggests that the
Court intended to overrule Romano’s test with a categorical
rule that irrelevant evidence introduced at sentencing is a due
process violation that mandates reversal of a sentence.
Finally, the Court confirmed in Kansas v. Carr, 577 U.S.
108 (2016), that Romano’s test continues to apply to alleged
due process violations based on improperly admitted
evidence at capital-sentencing proceedings: “The test
prescribed by Romano for a constitutional violation
attributable to evidence improperly admitted at a capital-
sentencing proceeding is whether the evidence ‘so infected
the sentencing proceeding with unfairness as to render the
jury’s imposition of the death penalty a denial of due
process.’” Id. at 123–24 (quoting Romano, 512 U.S. at 12).
58 HOOPER V. SHINN
In addition, Carr appears to reject the categorical rule urged
by Hooper: “The mere admission of evidence that might not
otherwise have been admitted . . . does not demand the
automatic vacatur of a death sentence.” Id. at 124.
Thus, even if Sanders was clearly established, it was not
the applicable clearly established law governing Hooper’s
due process claim. A state court’s failure to apply
inapplicable Supreme Court precedent cannot be contrary to
or an unreasonable application of clearly established law,
and therefore Hooper fails to overcome AEDPA deference
as to his due process claim. And Hooper presents no
argument that the state court’s decision was contrary to or an
unreasonable application of Romano. For these reasons, it
would be futile to allow Hooper to amend his petition to
include his due process claim. 25
C. Ineffective Assistance of Sentencing Counsel Claim
Hooper’s federal habeas petition claims that his
sentencing counsel, Woods, rendered ineffective assistance
by failing to investigate and present any mitigation evidence.
Hooper did not raise this claim in his first state post-
conviction petition, but he raised it in his second petition. In
denying his second petition, the post-conviction court found
25
We also reject Hooper’s reliance on Eighth Amendment law to
support his due process claim based on the erroneous admission of
evidence. See Carr, 577 U.S. at 123 (“Whatever the merits of
defendants’ procedural objections, we will not shoehorn them into the
Eighth Amendment’s prohibition of ‘cruel and unusual punishments.’
. . . [I]t is not the role of the Eighth Amendment to establish a special
‘federal code of evidence’ governing ‘the admissibility of evidence at
capital sentencing proceedings.’ Rather, it is the Due Process Clause that
wards off the introduction of ‘unduly prejudicial’ evidence that would
‘render the trial fundamentally unfair.’” (citations and brackets
omitted)).
HOOPER V. SHINN 59
that the claim was procedurally barred. The district court
also found that the claim was procedurally defaulted, and
that Hooper failed to show cause to excuse the procedural
default.
Hooper argues that the procedural default is excused
under Martinez because his post-conviction counsel,
Seplow, provided ineffective assistance by failing to raise
the claim in his first state post-conviction petition. He also
argues that the district court abused its discretion in denying
his requests for discovery and an evidentiary hearing.
1. Martinez Analysis
“A prisoner may obtain federal review of a defaulted
claim by showing cause for the default and prejudice from a
violation of federal law.” Martinez, 566 U.S. at 10. 26 Under
Martinez, “when a State requires a prisoner to raise an
ineffective-assistance-of-trial-counsel claim in a collateral
proceeding,” id. at 14, “a prisoner may establish ‘cause’ to
excuse the procedural default of a claim that the prisoner had
received ineffective assistance of counsel . . . during
sentencing proceedings by demonstrating that counsel in the
initial-review collateral proceeding was ineffective or there
was no counsel in such a proceeding,” Clabourne v. Ryan,
745 F.3d 362, 375 (9th Cir. 2014), overruled on other
grounds by McKinney v. Ryan, 813 F.3d 798, 819 (9th Cir.
2015) (en banc). 27 A prisoner establishes prejudice by
26
Procedural default may also be excused when a prisoner
“demonstrate[s] that failure to consider the claims will result in a
fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S.
722, 750 (1991). This exception is not at issue here.
27
Because the parties do not dispute that Martinez applies to
Hooper’s ineffective assistance of counsel claim, we assume without
60 HOOPER V. SHINN
demonstrating “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.” Martinez, 566 U.S. at 14.
The only issue before us is whether Hooper has
established “cause” to excuse the procedural default. 28
To establish “cause,” Hooper must show that his post-
conviction counsel was ineffective under Strickland v.
Washington, 466 U.S. 668 (1984). That is, Hooper must
show that post-conviction counsel’s performance was
deficient and that he was prejudiced by this deficient
performance, meaning that “there was a reasonable
probability that, absent the deficient performance, the result
of the post-conviction proceedings would have been
different.” Clabourne, 745 F.3d at 377. “[F]or us to find a
reasonable probability that [post-conviction] counsel
prejudiced a petitioner by failing to raise a trial-level
[ineffective assistance of counsel (IAC)] claim, we must also
find a reasonable probability that the trial-level IAC claim
would have succeeded had it been raised.” Runningeagle,
825 F.3d at 982. Stated differently, “[i]f the ineffective
assistance of trial counsel claim lacks merit, then the state
deciding that Arizona law at the time of Hooper’s appeal required him to
raise the claim in an initial-review collateral proceeding. But see
Runningeagle, 825 F.3d at 981 n.12 (expressing no opinion on whether
“Arizona law effectively required petitioners to bring [ineffective
assistance of counsel] claims in initial-review collateral proceedings”
before 1989).
28
The district found that the motions panel’s remand order
determined that Hooper had established prejudice. The State does not
challenge this finding. We therefore assume, without deciding, that
Hooper has satisfied the prejudice prong of the “cause and prejudice”
test.
HOOPER V. SHINN 61
habeas counsel would not have been deficient for failing to
raise it.” Atwood v. Ryan, 870 F.3d 1033, 1060 (9th Cir.
2017). 29
Thus, we first consider whether Woods was ineffective
under Strickland. Even assuming Woods performed
deficiently by failing to investigate and present mitigation
evidence (a question we need not and do not reach), 30 we
29
Hooper argues that to establish “cause,” he need show only that
post-conviction counsel rendered deficient performance, citing Detrich
v. Ryan, 740 F.3d 1237 (9th Cir. 2013) (en banc). See id. at 1245–46
(plurality opinion) (stating that to establish “cause,” “a prisoner need
show only that his PCR [post-conviction relief] counsel performed in a
deficient manner” and “need not show actual prejudice resulting from
his PCR counsel’s deficient performance, over and above his required
showing that the trial-counsel IAC claim be ‘substantial’ under the first
Martinez requirement”). We reject this argument because we have
consistently distinguished Detrich and reaffirmed the Clabourne
framework, which requires a petitioner who was represented by counsel
in the initial-review collateral proceeding to establish “cause” by
showing Strickland prejudice. See Rodney v. Filson, 916 F.3d 1254,
1260 & n.2 (9th Cir. 2019) (confirming that a petitioner represented by
post-conviction counsel must show Strickland prejudice and the Detrich
standard in the plurality opinion “applies [only] in cases in which the
petitioner was not represented by counsel in the initial-review collateral
proceeding”); see also Djerf v. Ryan, 931 F.3d 870, 880 (9th Cir. 2019)
(applying Clabourne and requiring the petitioner to show Strickland
prejudice to establish “cause”).
30
We do note some of the explanations Woods provided for his
performance in 1983, when questioned during a 1992 deposition taken
in connection with Bracy’s post-conviction proceeding:
It was clear to me there were no mitigating factors, and
almost every aggravating factor listed in the statute
was present.
62 HOOPER V. SHINN
find there is no “reasonable probability that, but for
[Woods’s alleged] unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S.
at 694. “In assessing prejudice, we reweigh the evidence in
aggravation against the totality of available mitigating
evidence.” Wiggins v. Smith, 539 U.S. 510, 534 (2003).
“The likelihood of a different result must be substantial, not
just conceivable.” Apelt v. Ryan, 878 F.3d 800, 832 (9th Cir.
2017) (quoting Richter, 562 U.S. at 112).
The mitigation evidence that Hooper now presents,
which he has had decades to collect, falls into two general
categories—evidence of his life history and evidence related
to his mental health. Hooper grew up in Chicago in a
segregated, impoverished neighborhood. He lived with his
mother, father, and four siblings. Both of his parents were
***
[M]y goal was to try to have him not get the death
sentence. And I believe my best chance would be to
try to construct an argument directed specifically at
that judge that maybe he might buy rather than put on
a completely ineffectual and unpersuasive mitigation
hearing just for the record, because it wouldn’t have
done any good. So that’s what I did.
***
I had a choice there. I could just try to protect the
record, or I could try to talk the judge out of the death
penalty. And I didn’t think I could do both. I could
aggravate the situation with the judge by coming up
with —There were no mitigating factors. That’s the
bottom line. There were none. I could try to make up
something or come up with some phony deal that he
would not buy, or I could lay it on the line on a
different level and see if I could persuade him.
HOOPER V. SHINN 63
employed. His mother worked in manufacturing for twenty
years and then worked at the post office for twenty-two
years. His father worked in the stockyards. Hooper’s
“family never had serious money problems.” His parents
provided the children with food and clothing, and the family
attended church every Sunday.
As a child, Hooper saw people being shot in the streets,
witnessed a person being beaten to death with a baseball bat,
and saw a man “stomped to death in the street.” He also saw
prostitutes and “stepped over drug addicts to get to school.”
Hooper’s sister stated that their parents “tried to shield” them
from the crime and drug use in their neighborhood.
Growing up, Hooper suffered physical injuries, was
beaten up by gangs, and had to fight to survive. At age
eleven, he was hit in the head by a ball while playing baseball
and knocked unconscious. At age twelve or thirteen, he was
knocked unconscious by blows from an ax handle during a
fight, and had his arm almost severed off by the ax blade.
Hooper was once beaten in the head with a baseball bat.
Hooper presents evidence that he was physically abused
by his father. His father whipped him and his siblings “over
their clothes and not on their bare skin” when they
misbehaved. His father whipped him with extension cords
at least two times a week. Hooper’s father drew a gun on
Hooper and his siblings at least two times, but Hooper’s
sister stated, “He was not going to shoot us.” There was no
physical abuse between Hooper’s parents, but they argued a
lot.
Hooper was never in a gang, but he hung out with older,
more violent juveniles. He first got into criminal trouble
when he was thirteen or fourteen years old for robbery and
vandalism. When his parents learned about his problems,
64 HOOPER V. SHINN
they “repeatedly sat him down and talked to him.” Hooper
was sent to various reformatories and juvenile detention
centers. He offers news articles supporting that incidents of
sexual assault and physical abuse occurred at two of the
institutions in which he had been confined. But Hooper does
not state if he was physically or sexually abused at those
institutions.
Hooper’s parents did not use drugs or abuse alcohol.
Hooper started drinking alcohol when he was seventeen, and
he reported that he consumed heavy amounts of alcohol “for
years” and stopped only when he was incarcerated in 1981.
Hooper has been institutionalized for most of his adult
life. While incarcerated as a young adult, he obtained his
GED and completed one year of college. In his twenties, he
spoke to youth about staying away from a life of crime.
Hooper has been a model prisoner and has not committed
any disciplinary infractions since his extradition to Arizona
in 2006. Hooper provides statements from several character
witnesses who described him as supportive, caring, and a
good person.
Turning to Hooper’s evidence related to his mental
health, he submits declarations from two mental health
professionals. In 2015, psychologist Dr. James Garbarino
declared that based on reports from Hooper’s siblings,
Hooper had been a sensitive child with a vulnerable
temperament. His upbringing in an “urban war zone”
resulted in his desensitization to violent acts. Hooper
experienced chronic trauma from the physical abuse he
suffered within his family and community and his exposure
to the traumatic environments in juvenile detention facilities.
He appeared to be emotionally disconnected from adverse
experiences and had difficulty regulating his emotions. Dr.
Garbarino noted that a family member stated that from an
HOOPER V. SHINN 65
early age Hooper had a “Jekyll/Hyde pattern,” as he had an
“‘explosive temper,’ and could shift from being ‘sweet’ to
expressing ‘rage.’” Dr. Garbarino concluded that Hooper’s
chronic trauma and “urban war zone” environment
contributed to his chronic antisocial and violent behavior.
Dr. Garbarino opined that Hooper was not beyond
rehabilitation based on positive reports from family, friends,
and prison staff.
Dr. Robert Heilbronner, a clinical neuropsychologist,
reviewed records and evaluated Hooper in 2011. He found
that Hooper demonstrated average IQ, average verbal
intellectual abilities, and borderline to low average
nonverbal performance abilities. Because he was unable to
administer a complete battery of neuropsychological tests,
Dr. Heilbronner was unable to explain the cause of the
discrepancy between the verbal intellectual abilities and
nonverbal performance abilities scores. Nevertheless, he
surmised that multiple head traumas and social-educational
deprivations as a child were likely contributors. He opined
that the discrepancy “more likely than not reflects an
abnormal pattern of intellectual functioning” and that “this
pattern of impairment was present in 1981.”
Later in 2015, Dr. Heilbronner completed his evaluation
of Hooper by administering the rest of the
neuropsychological tests. He was unable to determine with
any degree of neuropsychological certainty the causes of the
observed discrepancy. Dr. Heilbronner concluded that, had
Hooper been tested closer to the time of trial, it is more likely
66 HOOPER V. SHINN
than not that the results would have shown objective data of
brain impairment. 31
As for the aggravation evidence, the State established
two statutory aggravating circumstances: Hooper
(1) “committed the offense[s] as consideration for the
receipt, or in expectation of the receipt, of anything of
pecuniary value,” A.R.S. § 13-703(F)(5), and
(2) “committed the offense[s] in an especially heinous, cruel
or depraved manner,” A.R.S. § 13-703(F)(6). 32
The murder-for-hire aggravating circumstance carries
great weight. See State v. Harrod, 183 P.3d 519, 535 (Ariz.
2008) (en banc) (“[T]he pecuniary gain aggravating factor,
particularly in the case of a contract killing, is especially
strong. Accordingly, when a ‘hired hit’ has taken place, the
(F)(5) aggravator has substantial weight.” (citation
omitted)).
The Arizona Supreme Court found that these facts
established the existence of the “especially heinous, cruel or
depraved” aggravating circumstance: the victims were
herded at gunpoint, “forced to lie down on a bed, had their
31
In light of Dr. Heilbronner’s 2011 and 2015 evaluations, we deny
as moot Hooper’s 2010 motion requesting a confidential contact visit
between Dr. Heilbronner and Hooper to conduct a neuropsychological
examination.
32
Hooper argued below and appears to argue on appeal that our
prejudice analysis should exclude the two aggravating circumstances
based on the invalid Illinois convictions. We need not reach this issue
because, even assuming that we should exclude the two invalid
aggravating circumstances, Hooper fails to show that there is a
“reasonable probability that, but for [Woods’s alleged] unprofessional
errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
HOOPER V. SHINN 67
hands taped behind their backs, and were gagged with
socks”; “[e]xcept for the first victim, each of them had to
endure the ‘unimaginable terror’ of having their loved ones
shot to death within their hearing and then having to wait for
their own turn to come”; “Phelps did not die from the first
gunshot wound to her head, . . . she did not lose
consciousness as a result thereof, and . . . she most certainly
suffered pain from that wound”; the murderers inflicted
“gratuitous violence” or “needless mutilation” by slashing
Redmond’s throat after he had been shot twice through the
head; and “the murderers killed Mrs. Phelps, an elderly
houseguest of the Redmonds with no possible interest in
their business affairs.” Bracy, 703 P.2d at 481–82 (quoting
in part State v. McCall, 677 P.2d 920, 934 (Ariz. 1983) (en
banc)); see also Hooper, 703 P.2d at 495. The trial court
also observed that one of the murderers said “‘we don’t need
these two anymore[,’ which] shows the inhumane and
debase[d] motive possessed by [them].” Given these details
of the Redmond murders, the “especially heinous, cruel or
depraved” aggravating circumstance is also of substantial
weight.
In contrast, Hooper’s mitigation evidence is weak. The
evidence of his difficult upbringing is “by no means clearly
mitigating.” Cullen v. Pinholster, 563 U.S. 170, 201 (2011).
That Hooper engaged in violent crimes such as robbery
when he was thirteen, continued to engage in criminal
conduct despite having been sent to juvenile detention and
his parents’ attempts to intervene, and then continued a life
of crime throughout his adult life, could have caused a jury
to believe that he was beyond rehabilitation. See id. (“The
new evidence relating to Pinholster’s family—their more
serious substance abuse, mental illness, and criminal
problems—is also by no means clearly mitigating, as the jury
might have concluded that Pinholster was simply beyond
68 HOOPER V. SHINN
rehabilitation.” (citation omitted)). Additionally, that
Hooper was thirty-five years old when he committed the
Redmond murders further decreases the mitigating effect of
his childhood circumstances. See State v. Ellison, 140 P.3d
899, 927 (Ariz. 2006) (en banc) (“[Defendant’s] childhood
troubles deserve little value as a mitigator for the murders he
committed at age thirty-three.”).
Dr. Garbarino’s assessment is also not clearly mitigating.
Though he surmised that Hooper was not beyond
rehabilitation, he concluded that Hooper’s upbringing
“desensitized him to acting in a violent manner” and caused
him to develop a “war zone mentality.” This evidence could
have weighed against Hooper because it shows his
propensity for violence. See Apelt, 878 F.3d at 834
(“[P]resenting Apelt’s upbringing and activities in Germany
to explain how Apelt became a calculating killer arguably
could weigh in favor rather than against the death penalty.”).
The evidence of his alcohol use carries little or no weight
because there is no evidence that Hooper was influenced by
alcohol at the time of the Redmond murders. See Henry v.
Ryan, 720 F.3d 1073, 1090 (9th Cir. 2013) (“[S]tate courts
are free to consider the absence of a causal connection when
assessing the quality and strength of such evidence.”); cf.
A.R.S. § 13-703(G)(1) (recognizing as a statutory mitigating
circumstance: “The defendant’s capacity to appreciate the
wrongfulness of his conduct or to conform his conduct to the
requirements of law was significantly impaired”). Further,
Hooper’s heavy alcohol use might have weighed against
him. See Henry, 720 F.3d at 1090 n.11 (noting that a history
of alcoholism might be considered aggravating).
Hooper’s evidence of good character and prison
behavior is of minimal weight, especially given the strong
rebuttal evidence that the prosecutor could have highlighted
HOOPER V. SHINN 69
and introduced. See Harrod, 183 P.3d at 534–35
(commenting that mitigating evidence of good character
deserves less weight in a case involving a murder planned in
advance). Hooper had a long adult criminal history, which
started at age eighteen and progressed from disorderly
conduct to much more serious crimes of armed robbery and
attempted murder. In rebuttal, the prosecutor could have
presented the details of these crimes. The prosecutor could
have also emphasized Hooper’s damaging statements that he
would have killed Redmond and his family for “a couple
hundred dollars a person,” that he was “better off dead or in
the pen because if [he] got out again [he] would probably
just kill someone again,” and that he “like[s] to shoot people,
it doesn’t bother [him] a bit.” The supplemental PSR stated
that a Chicago police officer believed Hooper was a
“member of a prison gang/terrorist group called the Royal
Family for twelve or thirteen years.” Presumably, the State
could have presented details about this group and Hooper’s
connection to the group to further rebut his “good character”
and prison behavior evidence.
As for Dr. Heilbronner’s neuropsychological evaluation,
not only could it have opened the door for the prosecution to
retain an expert in rebuttal, see Pinholster, 563 U.S. at 201,
but also, Dr. Heilbronner’s conclusion is speculative. He
concluded that Hooper likely had some type of brain
impairment at the time of trial but provided no insight into
what that impairment could have been, how such an
impairment would have affected Hooper, or how it might
have been related to the crimes. This type of speculative
evidence is insufficient to establish prejudice. See Atwood,
870 F.3d at 1064 (noting that speculation that petitioner had
a brain dysfunction or disorder was not sufficient to establish
prejudice); Rhoades v. Henry, 638 F.3d 1027, 1050 (9th Cir.
2011) (“Speculation about potential brain dysfunctions or
70 HOOPER V. SHINN
disorders ‘is not sufficient to establish prejudice.’” (citation
omitted)).
Considering the two aggravating factors, both of which
carry significant weight, alongside Hooper’s insubstantial
mitigation evidence, there is no “reasonable probability that,
but for [sentencing] counsel’s [alleged] unprofessional
errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. Because Hooper’s
trial-level ineffective assistance of counsel claim lacks merit,
Hooper’s post-conviction counsel, Seplow, was not deficient
for failing to raise it, and Hooper cannot show that Seplow
was ineffective under Strickland. Accordingly, Hooper fails
to establish “cause” under Martinez, and his claim is
procedurally barred. 33
2. Denial of Discovery and Evidentiary Hearing
In the district court, Hooper requested discovery and an
evidentiary hearing to support his argument that the
procedural default of his ineffective assistance of counsel
claim is excused under Martinez. He also asked to expand
the record to include all the materials attached to his
supplemental briefs addressing the Martinez issue. The
court granted Hooper’s request to expand the record. The
33
Though our prejudice analysis construes Hooper’s mitigation
evidence in his favor, we note that his mitigation evidence on the level
of violence in his childhood neighborhoods and the extent of the physical
abuse by his father is not consistent. A family member stated that their
neighborhoods were not “overly violent.” Family members also stated
that the whippings by Hooper’s father occurred “[n]ot so often,” and that
Hooper and his siblings “received no punishments” from their parents.
The evidence of his history of alcohol use is also ambiguous. Hooper’s
friend, who knew Hooper in the mid-1970s, stated that Hooper did not
have an alcohol problem. Hooper’s PSR also stated that Hooper
“reportedly denies the abuse of alcohol and drugs.”
HOOPER V. SHINN 71
expanded record included declarations and interviews of
potential mitigation witnesses, including the declarations of
his medical experts. After reviewing the record, including
the newly added materials, the district court determined that
discovery and an evidentiary hearing were unnecessary.
“We review the district court’s denial of discovery and
an evidentiary hearing for abuse of discretion.” Smith v.
Mahoney, 611 F.3d 978, 997 (9th Cir. 2010).
Hooper claims that discovery and an evidentiary hearing
would resolve the factual disputes related to whether Woods
performed deficiently. This argument is unavailing given
our decision that, even assuming Woods performed
deficiently, Hooper cannot show “cause” for the procedural
default. He also makes the conclusory assertion that
“[e]xpert and lay witnesses could show the full extent of the
available mitigation case, and explain its significance” at an
evidentiary hearing. Hooper, however, does not identify
who those witnesses would be, and he makes no claim that
their testimony would differ materially from the mitigation
evidence that is already in the record.
Hooper also takes issue with the district court’s denial of
his request to depose the “major actors,” including Woods
and Seplow, based on Hooper’s failure to “allege specific,
relevant facts that might be found in the requested
depositions.” But Hooper does not explain how that
determination was an abuse of discretion. And in his
briefing to us he fails to allege any specific material facts
that would be obtained from the requested depositions and
makes no claim that any deposition testimony would be
materially different from the mitigation evidence in the
record. Indeed, as pointed out by the district court, the
record already contains the deposition of Woods and a
declaration by Seplow.
72 HOOPER V. SHINN
Because Hooper fails to show what additional evidence
he could have obtained from discovery or an evidentiary
hearing to support that he was prejudiced by Woods’s
performance, the district court did not abuse its discretion in
denying his requests for discovery and an evidentiary
hearing. See Henry, 720 F.3d at 1087 (affirming the denial
of an evidentiary hearing when petitioner failed to “point to
any additional evidence that could be properly pursued at an
evidentiary hearing to” support his claim); see also
Runningeagle, 825 F.3d at 990 (holding that the district court
did not abuse its discretion in denying an evidentiary hearing
when “[t]he expanded record included the declarations of
witnesses who would testify at a live hearing, and
Runningeagle made no showing that their testimony would
differ materially from their declarations”).
D. Request to Expand the COA
Hooper seeks to expand the COA to include two
uncertified claims: (1) the trial court’s decision to shackle
him was unconstitutional because it was not based on an
individualized determination or justified by an essential state
interest, and (2) the unconstitutional shackling caused him to
involuntarily waive his right to be present at voir dire
because he was forced to choose between two constitutional
rights—the right to appear before the jury free of restraints
and the right to be present at jury selection.
Under AEDPA, a COA may issue “only if the applicant
has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). In
determining whether Hooper has met this standard, “[w]e
look to the District Court’s application of AEDPA to
[Hooper’s] constitutional claims and ask whether that
resolution was debatable amongst jurists of reason.” Miller-
El v. Cockrell, 537 U.S. 322, 336 (2003).
HOOPER V. SHINN 73
The Arizona Supreme Court considered and rejected
Hooper’s uncertified claims on direct appeal. Hooper,
703 P.2d at 487–88. The Arizona Supreme Court found that
the trial court did not abuse its discretion in ordering Hooper
shackled given that he had been convicted of three murders
in Illinois and was under three death sentences for those
murders. Id. at 487. It also found that the restraints were not
visible to the jury. Id. Because Hooper had been properly
restrained, the court determined that “he was not denied his
right to be present when he voluntarily chose to be absent
during voir dire.” Id. at 487–88.
The district court deferred to the Arizona Supreme
Court’s finding that the jury did not see Hooper’s shackles.
The district court then determined that the Arizona Supreme
Court’s ruling on the unconstitutional shackling claim was
not contrary to or an unreasonable application of clearly
established law. It also rejected, under AEDPA, Hooper’s
claim that the alleged unconstitutional shackling order
caused him to waive his right to be present at voir dire.
When the Arizona Supreme Court adjudicated Hooper’s
unconstitutional shackling claim, there was no clearly
established law on “the specific procedural steps a trial court
must take prior to [visible] shackling, about the amount and
type of evidence needed to justify restraints, and about what
forms of prejudice might warrant a new trial.” Deck v.
Missouri, 544 U.S. 622, 629 (2005); see Crittenden v. Ayers,
624 F.3d 943, 970–72 (9th Cir. 2010) (interpreting Deck as
confirming that there was no clearly established law
regarding any required procedures before shackling a
defendant). Because there was no clearly established law
that required a trial court to make an individualized
determination before imposing shackles, no reasonable jurist
could disagree with the district court’s conclusion that the
74 HOOPER V. SHINN
Arizona Supreme Court’s decision was not contrary to or an
unreasonable application of clearly established law. See
Brewer, 378 F.3d at 955.
The district court properly deferred to the Arizona
Supreme Court’s determination that the jury did not see the
shackles, as that factual conclusion was not unreasonable.
There is no indication in the state court record that any juror
saw shackles on Hooper. Indeed, Hooper made no allegation
in his brief to the Arizona Supreme Court that the shackles
were visible, and his briefs here fail to point to any part of
the record that shows a juror saw his shackles. 34 Given the
lack of any evidence that the jury saw Hooper’s shackles, no
reasonable jurist could disagree with the district court’s
decision to defer to the Arizona Supreme Court’s factual
finding that the shackles were not visible. See Dixon v.
Ryan, 932 F.3d 789, 810–11 (9th Cir. 2019) (holding that the
state court’s factual conclusion that restraints were not
visible was reasonable because there was no evidence to the
contrary).
Hooper’s second uncertified claim that he was forced to
choose between two constitutional rights depends on a
determination that his shackling was unconstitutional. But
that claim necessarily fails because we must defer to the
Arizona Supreme Court’s decision that his shackling was
proper. We therefore conclude that no reasonable jurist
34
Hooper provides a 1992 affidavit signed by Bracy to support his
claims. We cannot consider this affidavit because it was not part of the
record on direct appeal. See Pinholster, 563 U.S. at 181–82. Even if we
were to consider the affidavit, it does not claim that any juror saw
Hooper’s shackles. Further, even if the affidavit could be construed as
raising the possibility that his shackles may have been visible at times,
the mere possibility that a juror saw his shackles would not render the
Arizona Supreme Court’s factual determination unreasonable.
HOOPER V. SHINN 75
could debate the district court’s rejection of Hooper’s second
uncertified claim.
We deny Hooper’s request to expand the COA.
IV. Conclusion
We affirm the district court’s denial of the writ of habeas
corpus. Hooper’s Brady claims are either barred by AEDPA
or fail on the merits under de novo review. The district court
properly denied Hooper’s request for leave to amend his
petition to include claims that his death sentence violates the
Eighth and Fourteenth Amendments because any
amendment would be futile. We also affirm the district
court’s conclusion that Hooper’s ineffective assistance of
sentencing counsel claim is procedurally defaulted, and that
Hooper fails to show cause under Martinez to excuse the
default. Finally, we decline to expand the COA.
AFFIRMED.