Roger Murray v. Dora Schriro , 882 F.3d 778 ( 2014 )


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  •                 FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    ROGER W. MURRAY,                          No. 08-99013
    Petitioner-Appellant,
    D.C. No.
    v.                   2:03-CV-00775-DGC
    DORA SCHRIRO, Warden,
    Respondent-Appellee.               OPINION
    Appeal from the United States District Court
    for the District of Arizona
    David G. Campbell, District Judge, Presiding
    Argued and Submitted
    September 13, 2012—Las Vegas, Nevada
    Filed March 17, 2014
    Before: Johnnie B. Rawlinson, Jay S. Bybee,
    and Sandra S. Ikuta, Circuit Judges.
    Opinion by Judge Rawlinson
    2                      MURRAY V. SCHRIRO
    SUMMARY*
    Habeas Corpus/Death Penalty
    The panel affirmed the denial of a 
    28 U.S.C. § 2254
    habeas corpus petition challenging a conviction and capital
    sentence for murder.
    The panel affirmed the denial of relief as to petitioner’s
    change of venue motion, including petitioner’s contention
    that there is a heightened obligation to change venue in
    capital cases, because the state court’s decision—that the
    substantial media coverage of this “sensational, small-town
    murder” was not constitutionally prejudicial—was not
    contrary to or an unreasonable application of Supreme Court
    precedent.
    The panel affirmed the denial of relief as to petitioner’s
    claim under Batson v. Kentucky, 
    476 U.S. 79
     (1986), because
    the state court’s decision that the prosecutor’s race-neutral
    explanations for exercising peremptory challenges against
    two Hispanic potential jurors was not contrary or an
    unreasonable application of Batson.
    The panel also affirmed the denial of relief as to
    petitioner’s claim that he was denied due process based on a
    belated request for access to the sanitized crime scene.
    The panel affirmed the denial of relief as to petitioner’s
    request for jury instructions on voluntary intoxication
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    MURRAY V. SCHRIRO                        3
    instruction and second degree murder, for lack of supporting
    evidence, because the state court’s decision was consistent
    with Supreme Court precedent.
    The panel held that the state court’s rejection of
    petitioner’s claim that the trial court erroneously applied a
    causal nexus test to evidence that petitioner’s dysfunctional
    childhood could not be considered as an independent
    mitigating factor was not contrary to or an unreasonable
    application of Supreme Court precedent. The panel explained
    that the record reflects that the sentencing court
    “meticulously” weighed the mitigating and aggravating
    factors and employed the causal nexus test as a permissible
    means of weighing the entirety of the mitigating evidence
    prior to imposing sentence, and any error did not prejudice
    petitioner.
    Finally, the panel held that the state court’s denial of
    relief on petitioner’s claims of ineffective assistance of
    counsel was not contrary to or an unreasonable application of
    Strickland v. Washington, 
    466 U.S. 668
     (1984), and did not
    warrant a remand under Martinez v. Ryan, 
    132 S. Ct. 1309
    (2012). Petitioner claimed that he was denied his right to
    counsel due to an irreconcilable conflict, and that counsel was
    ineffective by sleeping during the trial and by failing to
    interview a critical witness who would have supported the
    defense theory that petitioner happened to be in the area
    where the murders were committed but did not commit them.
    4                      MURRAY V. SCHRIRO
    COUNSEL
    John E. Charland, The Charland Law Firm, Phoenix, Arizona,
    for Petitioner-Appellant.
    Terry Goddard, Attorney General, Kent E. Cattani, Chief
    Counsel, Jeffrey A. Zick (argued), Assistant Attorney
    General, Capital Litigation Section, Phoenix, Arizona, for
    Respondent-Appellee.
    OPINION
    RAWLINSON, Circuit Judge:
    Petitioner-Appellant Roger Murray (Roger) appeals the
    district court’s denial of his petition for habeas corpus
    challenging the death sentence imposed following his
    convictions for murder and armed robbery.
    I. BACKGROUND1
    Dean Morrison (Morrison), age 65, and Jacqueline
    Appelhans (Appelhans), age 60, operated a store and
    restaurant in Grasshopper Junction, a rural area outside
    Kingman, Arizona. See State v. Murray, 
    906 P.2d 542
    , 553
    (Ariz. 1995). On May 14, 1991, between 8:30 and 9:00 a.m.,
    an acquaintance discovered the bodies of Morrison and
    Appelhans lying face down, in their bathrobes, after being
    shot multiple times in the head. See 
    id.
     at 553–54.
    1
    The facts are taken from the opinion of the Supreme Court of Arizona.
    See State v. Murray, 
    906 P.2d 542
     (Ariz. 1995) (in banc).
    MURRAY V. SCHRIRO                        5
    At the crime scene, a revolver was found on the couch
    and a .22 caliber semiautomatic rifle was leaning against the
    wall. See 
    id. at 554
    . Near the bodies were various .22 and
    .38 caliber bullets, as well as shotgun pellets. See 
    id.
     Two
    weeks after the crime, Morrison’s sister found a .25 caliber
    bullet in the pantry. See 
    id.
    In the living room, drawers were pulled out and the
    contents scattered. See 
    id.
     The bedrooms and kitchen were
    also ransacked. See 
    id.
     A .303 rifle was on a bed and $172
    was on a desk chair. See 
    id.
     Morrison’s wallet containing
    $800 was undisturbed in his pants pocket. See 
    id.
     The
    drawer from the cash register in the store had been removed,
    and the gas register was left on. See 
    id.
     Morrison’s glasses,
    a flashlight, and a set of keys were found on the patio of the
    store. See 
    id.
     In addition, three live .38 caliber bullets were
    found near the gas pumps. See 
    id.
    Detective Lent of the Mohave County Sheriff’s
    Department and another officer found and noted four sets of
    footprints, other than those of the investigating officers and
    the acquaintance who discovered the bodies. See 
    id.
     Two
    sets of footprints belonged to the victims, a third set was
    made by tennis shoes, and the fourth set by western boots.
    See 
    id.
     A different set of three footprints were made by the
    tennis shoes, the western boots, and Morrison’s slippers. See
    
    id.
     Morrison’s footprints indicated resistance by him. See 
    id.
    At the time of their arrest, Roger was wearing tennis shoes
    and Robert was wearing western boots, both of which were
    consistent with the footprints analyzed at the crime scene.
    See 
    id.
     at 553–54.
    Morrison’s autopsy revealed that he had suffered a
    shotgun blast that shattered his skull. See 
    id.
     He also
    6                   MURRAY V. SCHRIRO
    suffered two gunshot wounds from a large caliber pistol. See
    
    id.
     at 554–55. A .38 caliber bullet was recovered from the
    back of his neck and large caliber buckshot was removed
    from his head. See 
    id. at 555
    . Found next to Morrison was a
    fired .38 caliber bullet. See 
    id.
     Morrison had lacerations and
    abrasions on his face, elbow, forearm, knee, and thigh. See
    
    id.
     The autopsy revealed that these injuries occurred at
    approximately the same time as the gunshot wounds. See 
    id.
    Appelhans was shot with at least three different guns. See
    
    id.
     A shotgun blast shattered her head. See 
    id.
     Two .38
    caliber slugs were removed from her skull. See 
    id.
     She also
    suffered .22 caliber wounds that entered at the back of the
    neck and exited her face. See 
    id.
     Aspiration hemorrhaging
    in her lungs indicated a lapse of time between the initial
    gunshot and death. See 
    id.
     The shotgun blast was definitely
    lethal, and the .38 caliber bullets were also a possible cause
    of death. See 
    id.
    Before the bodies were discovered, police officers found
    one of Morrison’s tow trucks abandoned on Interstate 40
    westbound near Kingman, Arizona. See 
    id. at 553
    . Roger
    and Robert were arrested on unrelated charges on Interstate
    40 eastbound near Holbrook, Arizona. See 
    id.
     The brothers
    were driving a Ford sedan with Alabama license plates. See
    
    id. at 554
    . When an officer attempted to stop the vehicle, the
    brothers fled, driving in excess of eighty-five miles per hour.
    See 
    id.
     During their flight, the brothers breached a manned
    and armed roadblock. See 
    id.
     The brothers stopped only
    after their vehicle ran off the road into a wash that impeded
    further progress. See 
    id.
     Robert, the driver, threw a .38
    revolver containing four bullets from the car. See 
    id.
     Roger
    discarded a loaded .25 semiautomatic pistol. See 
    id.
    MURRAY V. SCHRIRO                         7
    Additionally, Robert had two spent shotgun shell casings in
    his pants pocket. See 
    id.
    A loaded twelve gauge sawed-off shotgun and shotgun
    shells were discovered inside the car. See 
    id.
     A checkered
    cushion cover that matched the cushion on Morrison’s couch
    contained rolled coins stamped “Dean’s Enterprises,
    Grasshopper Junction, Kingman, Arizona, 86401.” 
    Id.
     A
    blue pillow case contained approximately $1400 in coin rolls
    and $3300 in cash. See 
    id.
     Gloves and a hotel receipt were
    also in the vehicle. See 
    id.
     Records from the hotel indicated
    that the brothers had listed a Ford sedan, the description of
    which matched the vehicle they were driving at the time of
    their arrest, on the hotel registration card. See 
    id.
     Officers
    retrieved from the sedan an atlas with circles around the
    locations of two rural establishments, the Oasis and
    Grasshopper Junction, which were not otherwise indicated on
    the map. See 
    id.
    Keys found in Robert’s pants pocket were later identified
    as the keys to a pickup truck on Morrison’s property. See 
    id.
    A scanner and connecting knob in the sedan fit an empty
    bracket in the abandoned tow truck. See 
    id.
     It was
    determined that the casings found at the crime scene and in
    Robert’s pocket were fired from the guns possessed by Roger
    and Robert. See 
    id. at 555
    .
    Human blood and tissue were found on Robert’s shirt, on
    Roger’s pants, and on the cushion cover. See 
    id.
     The blood
    on Roger’s pants could have come from either victim or from
    Robert, but not from Roger. See 
    id.
     The blood on Robert’s
    shirt was consistent with that of either victim, but not with the
    blood of Roger or Robert. See 
    id.
     The blood on the cushion
    cover could have come from Appelhans, but not from
    8                          MURRAY V. SCHRIRO
    Morrison or the Murrays. See 
    id.
     No DNA tests were
    conducted. See 
    id.
    The brothers were indicted for the first degree murders of
    Morrison and Appelhans and for the armed robbery of
    Morrison. See 
    id.
     A jury convicted them of all charges. See
    
    id.
     The first degree murder verdicts were unanimous for both
    premeditated murder and felony murder. See 
    id.
     After
    separate sentencing hearings, the trial court found that the
    state had proven three aggravating circumstances as to each
    defendant: the murders were committed for pecuniary gain,
    as defined in A.R.S. § 13-703(F)(5);2 the murders were
    especially heinous, cruel or depraved, as provided in § 13-
    703(F)(6);3 and the defendants committed multiple
    2
    A.R.S. § 13-703(F)(5) (1992) provided:
    Aggravating circumstances to be considered shall be
    the following:
    ...
    (5) The defendant committed the offense as
    consideration for the receipt, or in expectation of the
    receipt, of anything of pecuniary value.
    3
    A.R.S. § 13-703(F)(6) (1992) provided:
    Aggravating circumstances to be considered shall be
    the following:
    ...
    (6) The defendant committed the offense in an
    especially heinous, cruel or depraved manner.
    MURRAY V. SCHRIRO                        9
    homicides, as described in § 13-703(F)(8).4 See id. Finding
    the mitigation evidence insufficient to outweigh the
    aggravating circumstances, the trial court denied leniency for
    both defendants and imposed a sentence of death. See id.
    The Arizona Supreme Court affirmed the convictions and
    sentences. See id.
    A. Direct Appeal - Robert and Roger
    On October 26, 1995, the Arizona Supreme Court
    affirmed the convictions and sentences. See id. at 553. On
    direct appeal, the brothers raised five issues: (1) jury
    selection; (2) pretrial motions; (3) evidentiary issues;
    (4) motion for acquittal; and (5) special verdict form. See id.
    at 555–65. Roger raised five additional trial issues: (1) jury
    sequestration; (2) jury instructions; (3) request for mistrial;
    (4) prosecutorial misconduct; and (5) visitation of the crime
    scene. See id. at 565–69. In addition, Roger raised three
    sentencing issues: (1) objective standards and prosecutorial
    discretion; (2) independent review; and (3) aggravating
    factors. See id. at 569–71. Roger also raised issues related to
    the following statutory mitigation factors: (1) capacity to
    appreciate wrongfulness of conduct or conform conduct to
    requirements of the law, (2) relatively minor participation;
    4
    A.R.S. § 13-703(F)(8) (1992) provided:
    Aggravating circumstances to be considered shall be
    the following:
    ...
    (8) The defendant has been convicted of one or more
    other homicides, as defined in § 13-1101, which were
    committed during the commission of the offense.
    10                   MURRAY V. SCHRIRO
    (3) age; (4) duress; and (5) no reasonable foreseeability that
    his conduct would create a grave risk of death. See id. at
    573–77.
    The Arizona Supreme Court also addressed the following
    nonstatutory mitigation factors that Roger raised during trial:
    (6) dysfunctional childhood and family relations; (7) medical
    treatment; (8) remorse; (9) drug and alcohol use; and
    (10) mental health. See id. at 577–78. For the first time on
    direct appeal Roger urged as mitigation factors:
    (11) education; (12) residual or lingering doubt; (13) felony
    murder instruction; and (14) cooperation. See id. at 578.
    1. Jury Selection
    The original master jury list used was composed of a one-
    and-a-half-year-old driver’s license list in violation of
    Arizona law. See id. at 555. Just days before trial was
    scheduled to begin, the trial court ordered that a new jury list
    be created using both the old driver’s license list and a list of
    registered voters. See id. The jury commissioner advised the
    trial court that the new list would generate adequate potential
    jurors by the date of trial, even though the deadline to respond
    was beyond the date trial was scheduled to begin. See id.
    Robert and Roger argued that (1) the truncated time to
    respond to the jury questionnaire resulted in fewer potential
    jurors from more remote portions of the county; and (2) the
    one-and-a-half-year-old driver’s license list resulted in fewer
    young prospective jurors. See id. Robert and Roger
    contended that these infirmities denied them a jury of their
    peers because they hailed from a small, rural area in Alabama
    and were young at the time of trial. See id. at 555–56. The
    Arizona Supreme Court concluded that Robert and Roger
    failed to establish the lack of a fair and impartial jury or
    MURRAY V. SCHRIRO                   11
    prejudice. See id. The brothers failed to show that they were
    denied the right to have jurors selected from a fair cross-
    section of the community, or systematic exclusion of any
    discrete segment of the community. See id. at 556. The court
    noted that “failure to follow statutory procedures is harmless,
    absent some separate showing of prejudice or discrimination
    . . . .” Id.
    The brothers also contended that the jury commissioner’s
    use of standardless exclusions violated their constitutional
    rights. See id. However, the Arizona Supreme Court
    determined that the jury commissioner, within her discretion,
    excused and notified potential jurors in accordance with state
    law. See id. at 557. The court concluded that the brothers
    were not denied their right to a jury drawn from a fair
    cross–section of the community, because the criteria used
    were neutral and did not “constitute systematic exclusion.”
    Id. (citation omitted).
    Finally, Robert and Roger asserted a Batson5 violation
    when the prosecution used peremptory challenges to dismiss
    the only two Hispanic potential jurors. See id. at 557-58.
    The Arizona Supreme Court rejected the Batson challenge,
    concluding that the trial court’s acceptance of the
    prosecutor’s race-neutral explanation for striking the
    Hispanic jurors was not an abuse of discretion. See id.
    5
    Batson v. Kentucky, 
    476 U.S. 79
     (1986).
    12                   MURRAY V. SCHRIRO
    2. Pretrial Motions
    a. Severance
    The Arizona Supreme Court concluded that the trial court
    did not abuse its discretion in declining to sever the brothers’
    cases. See id. at 558. The court noted that “joint trials, are
    the rule rather than the exception . . . .” Id. (citation omitted).
    The court also pointed out that the crimes were so intertwined
    that it would have been virtually impossible to sever the
    evidence, because the evidence implicated the brothers
    equally. See id. The jury questionnaire screened out
    prospective jurors who would have trouble segmenting the
    evidence, and the trial court instructed the jury to consider the
    evidence separately against each defendant. Under these
    circumstances, the Arizona Supreme Court found no
    prejudice. See id.
    b. Change of Venue
    The Arizona Supreme Court determined that Robert and
    Roger failed to prove presumed or actual prejudice based on
    the denial of their request for a change of venue due to
    pretrial publicity. See id. at 559. The Court emphasized that
    the brothers failed to show any pretrial publicity that was so
    outrageous that the trial was “utterly corrupted.” Id. (citation
    omitted). Any security measures were largely effectuated
    when jurors were unlikely to be present. See id. Only
    prospective jurors who pledged to decide the case solely on
    the evidence were empaneled, and empaneled jurors were
    repeatedly admonished to avoid media coverage. See id.
    After reviewing this record, the Arizona Supreme Court
    affirmed the trial court’s denial of the requested venue
    change. See id.
    MURRAY V. SCHRIRO                        13
    c. Hybrid Representation
    After noting that there is no right to hybrid representation
    (some combination of self-representation and counsel), the
    Arizona Supreme Court held that the trial court acted within
    its discretion when it denied the brothers’ requests for hybrid
    representation in the absence of irreconcilable conflict or
    incompetent counsel. See id. at 560.
    d. Library Access
    Citing Bounds v. Smith, 
    430 U.S. 817
     (1977), the Arizona
    Supreme Court held that because the brothers were provided
    with counsel throughout the proceedings, their constitutional
    right to access the court was afforded, regardless of whether
    they were able to personally access legal materials. See id. at
    561.
    3. Evidentiary Issues
    The brothers challenged the admissibility of crime scene
    photographs and footprint comparisons, and argued that the
    court improperly prevented them from impeaching a witness.
    See id. at 561–64. The Arizona Supreme Court determined
    that the challenged photographs were relevant to the case and
    were not unduly inflammatory. See id. at 561–62. The court
    also rejected the challenge to footprint comparisons made by
    a detective, holding that the trial court did not abuse its
    discretion in qualifying the detective as an expert where the
    detective had extensive tracking experience in criminal
    investigations and had previously been qualified as an expert
    in state and federal court. See id. at 562–63. Any issue of
    proper methodology “went to the weight rather than
    admissibility.” Id. at 563 (citation omitted).
    14                  MURRAY V. SCHRIRO
    Finally, the brothers contended that the trial court
    impermissibly precluded impeachment of the detective who
    testified regarding the footprint evidence. See id. at 563–64.
    During cross-examination, the detective admitted that he had
    previously lied under oath. See id. at 563. After hearing
    argument in chambers, the trial court determined that the
    relevant extrinsic evidence of the detective’s truthfulness (or
    lack thereof) was minimally probative, but far outweighed by
    its prejudicial and confusing nature. See id. The trial court
    was of the view that admission of the extrinsic evidence to
    impeach the detective would essentially result in the trial of
    a collateral matter. See id. at 563–64. The Arizona Supreme
    Court concluded that the trial court did not abuse its
    discretion in applying the Arizona Rules of Evidence. See id.
    at 564.
    4. Motion for Acquittal
    Robert and Roger moved for acquittal, arguing that there
    was not substantial evidence to support a conviction. See id.
    at 564. The Arizona Supreme Court concluded that there was
    substantial evidence supporting the robbery and felony
    murder convictions, including signs of a struggle, to establish
    that the defendants used force to rob the victims. See id. The
    court also clarified that the prosecution did not need to
    establish that Roger killed or intended to kill to prove felony
    murder under Arizona law. See id. at 564-65. Rather, the
    prosecution need only establish that a principal or accomplice
    attempted to commit or committed a robbery and a person
    was killed during the commission of and in furtherance of the
    robbery. See id. at 565.
    Further, the court affirmed the existence of substantial
    evidence supporting the convictions for first-degree murder,
    MURRAY V. SCHRIRO                               15
    namely evidence establishing that Robert and Roger were
    present at the crime scene and participated in the crimes,
    including evidence from the crime scene found on the
    brothers and the execution-style murders. See id.
    Finally, the Arizona Supreme Court held that the trial
    court issued a special verdict that was in the record, as
    required by law, although not specifically titled “Special
    Verdict.” Id.
    B. Direct Appeal - (Trial Issues)
    1. Jury Sequestration
    Although the trial court denied Roger’s motion to
    sequester the jury, the jury was repeatedly admonished to
    avoid media coverage. See id. at 566. Roger failed to assert
    or establish that the jurors failed to follow the trial court’s
    admonitions. See id. The Arizona Supreme Court concluded
    that the trial court did not abuse its discretion when it denied
    the sequestration request. See id.
    2. Willits Jury Instruction6
    The Arizona Supreme Court concluded that the evidence
    Roger asserted that the state failed to preserve, such as the
    types of shoes worn by others at the crime scene and fast-
    food remnants, would not have tended to exonerate him. See
    6
    State v. Willits, 
    393 P.2d 274
    , 276, 279 (Ariz. 1964) (in banc), requires
    a jury instruction when the state destroys material evidence that would
    allow the jury to infer that the facts implicated by the material evidence
    are against the state’s interest.
    16                  MURRAY V. SCHRIRO
    
    id.
     Therefore, the trial court acted within its discretion when
    it denied the requested Willits instruction. See id.
    3. Intoxication Instruction
    Roger asserted that he was entitled to an intoxication
    instruction, because on the night of the murders, he and
    Robert had been drinking at a local bar. See id. However, the
    manager of the bar testified that the brothers were “handling
    themselves very well.” Id. In view of the trial court’s finding
    that there was no evidence that alcohol consumption affected
    the brothers’ “ability to think, function, or form intent,” the
    Arizona Supreme Court concluded that Roger failed to meet
    his burden of showing that consumption of alcohol negated
    an element of the crime. Id. at 566–67 (citations omitted).
    4. Second-Degree Murder/Lesser Included Offense
    Instruction
    The Arizona Supreme Court explained that an instruction
    on second-degree murder would pertain, if at all, only to the
    premeditated murder count and only if supported by the
    evidence. See id. at 567. Due to the substantial evidence of
    premeditation in the record, the Arizona Supreme Court
    agreed with the trial court that an instruction on second-
    degree murder was contraindicated because the jury could
    have only rationally drawn the inference that Robert and
    Roger premeditated the murders. See id.
    5. Request for a Mistrial
    Roger’s request for a mistrial stemmed from witness
    statements referring directly or indirectly to his in-custody
    status. See id. at 567. The Arizona Supreme Court concluded
    MURRAY V. SCHRIRO                      17
    that the jurors were already aware that the brothers had been
    arrested and were in custody at some point prior to trial. The
    court ruled that such knowledge was not prejudicial and did
    not deprive the brothers of their right to a presumption of
    innocence. See id. at 568.
    6. Prosecutorial Misconduct
    Roger alleged the following instances of misconduct:
    (1) A detective’s joking about the Federal
    Bureau of Investigations [FBI] while
    testifying. The objection to the FBI comment
    was sustained based on irrelevance and the
    jury was instructed to disregard it.
    (2) Discussion by officers in the courthouse
    library that defendants were using the “fecal
    defense”-throwing up anything and hoping
    something sticks. The trial court thoroughly
    probed this issue and concluded that there had
    been no discussion of the evidence and that
    the jurors were unlikely to have heard the
    discussion.
    (3) The prosecutor’s alleged joking with a
    witness in front of the jury about whether a
    bartender at the Temple Bar had gone fishing
    in Mexico. Defendant waived this issue for
    failure to object at trial. See State v. White,
    
    564 P.2d 888
    , 892 (Ariz. 1977).
    (4) The prosecutor’s joking with someone
    while on a cigarette break about being
    18                  MURRAY V. SCHRIRO
    subpoenaed, while two jurors stood nearby.
    The prosecutor himself brought the incident to
    the court’s attention; neither defendant
    objected [n]or moved for a mistrial in the trial
    court. Thus, defendant waived this issue.
    (5) In closing argument, the prosecutor’s
    referring to defendants as “the boys from
    Alabama.” Defendant waived this issue by
    failing to object at trial. See State v. Hankins,
    
    686 P.2d 740
    , 747 (Ariz. 1984).
    (6) The prosecutor’s stating that a .25 caliber
    bullet found on the premises had been fired by
    one of the brothers. The argument was
    permissible because a ballistics expert found
    that the bullet matched the pistol Roger threw
    from the car.
    (7) Reference in closing argument by the state
    to defendants feeling a “sick excitement” in
    committing the murders. The trial court
    cautioned the prosecutor and the prosecutor
    made no more such references.
    
    Id.
    The Arizona Supreme Court determined that the
    prosecutor’s conduct did not negatively influence the trial
    because Roger failed to establish that the prosecutor’s actions
    affected the jury’s verdict in any way. See 
    id.
    MURRAY V. SCHRIRO                        19
    7. Visitation of the Crime Scene
    The Arizona Supreme Court determined that the trial
    court did not abuse its discretion by denying Roger’s request
    to revisit the crime scene. See id. at 569. On the fourth day
    of trial, more than a year after the crime was committed,
    Roger filed a motion to revisit the crime scene. See id. (citing
    Ariz. R. Crim. P. 15.1(e)). The trial court denied the motion
    because Roger had failed to show a substantial need for the
    second inspection. See id. Roger’s attorney had previously
    examined the crime scene with investigators, and the attorney
    and investigators were still available. Additionally, the crime
    scene had been cleaned. See id.
    C. Direct Appeal - (Sentencing Issues)
    1. Objective Standards and Prosecutorial Discretion
    The Arizona Supreme Court noted that Roger’s
    arguments regarding the alleged lack of objective standards
    for imposing the death penalty and the broad discretion
    afforded the prosecution in seeking the death penalty had
    been rejected in previous cases. See id. (citing State v.
    Salazar, 
    844 P.2d 566
    , 578 (Ariz. 1992) (in banc); State v.
    Correll, 
    715 P.2d 721
    , 737 (Ariz. 1986) (in banc); State v.
    Harding, 
    670 P.2d 383
    , 397 (Ariz. 1983) (in banc)).
    2. Independent Review
    The Arizona Supreme Court explained that it conducts an
    independent review of death sentences for error, determines
    whether the aggravating circumstances were proven beyond
    a reasonable doubt, considers mitigating circumstances, and
    weighs the aggravating factors and the mitigating
    20                 MURRAY V. SCHRIRO
    circumstances anew to decide whether leniency is warranted.
    See id.
    3. Aggravating Factors
    Roger challenged all three of the following aggravating
    factors found by the trial court:
    A. Defendant committed the offense as
    consideration for the receipt, or in expectation
    of the receipt, of anything of pecuniary value.
    A.R.S. § 13-703 (F)(5).
    B. Defendant committed the offense in an
    especially heinous, cruel, or depraved manner.
    A.R.S. § 13-703 (F)(6).
    C. Defendant has been convicted of one or
    more other homicides which were committed
    during the commission of the offense. A.R.S.
    § 13-703 (F)(8).
    Id.
    The Arizona Supreme Court concluded that there was
    substantial evidence to establish that Roger committed the
    crime for pecuniary gain, i.e., that there was financial
    motivation. See id. Among other evidence, a number of
    items, including cash were taken. See id. at 569–70. The
    record also supported a finding that the crimes were
    especially heinous, cruel, or depraved. See id. at 570. The
    victims were kidnapped at gunpoint, were taken by surprise,
    and were aware of their imminent demise. See id. The signs
    of struggle and fear, e.g., Appelhans clutching Morrison’s
    MURRAY V. SCHRIRO                      21
    arm, established mental anguish as well as pain and suffering.
    See id. Finally, the elderly, helpless victims were subjected
    to gratuitous violence and the murders were senseless. See id.
    at 571.
    4. Multiple Murders
    Citing its precedent, the Arizona Supreme Court rejected
    Roger’s argument that double jeopardy foreclosed application
    of the multiple homicide aggravating factor where the
    murders were part of the same criminal offense. See id.
    (citing State v. Glenway, 
    823 P.2d 22
    , 34–35 (Ariz. 1991) (in
    banc)).
    5. Mitigating Circumstances
    The Arizona Supreme Court reviewed and addressed the
    following mitigating circumstances presented by Roger:
    a. Capacity to Appreciate Wrongfulness of
    Conduct or Conform Conduct to
    Requirements of the Law
    After discussing Roger’s juvenile problems, head injuries,
    hyperactivity, and substance abuse, the Arizona Supreme
    Court determined that Roger failed to establish that these
    factors, either individually or in combination, affected his
    capacity to appreciate the wrongfulness of his conduct or to
    confirm his conduct to the requirements of the law. See 
    id.
     at
    573–76.
    22                  MURRAY V. SCHRIRO
    b. Relatively Minor Participation
    Roger asserted that Robert’s jailhouse letters to him, in
    which Robert admitted participating in the killing of
    Morrison and Appelhans, exculpated him. Roger also
    referenced the lack of evidence establishing that he fired any
    of the guns. See id. at 576. The Arizona Supreme Court
    disagreed, referencing evidence at trial implicating both
    Robert and Roger, including footprint evidence, the fact that
    both defendants were armed when captured, and the fact that
    the victims suffered numerous bullet wounds from different
    weapons. See id. Additionally, the Court noted that Robert’s
    jailhouse letters did not “indicate the role Roger did or did not
    play.” Id. The Court determined that Roger failed to prove
    by a preponderance of the evidence that his role in the crimes
    was minor. See id.
    c. Age - (Twenty Years Old)
    The Arizona Supreme Court rejected Roger’s reliance on
    his relative youth as a mitigating factor. The Court reasoned
    that Roger’s intelligence, previous criminal history,
    experience with law enforcement, the extent of his
    involvement with the crimes, and the deliberate nature of the
    murders militated against concluding that the commission of
    the crimes was due to a lack of maturity. See id. at 576–77.
    In sum, Roger failed to prove “how his age impaired his
    judgment in committing the crimes.” Id. at 577 (citation
    omitted).
    MURRAY V. SCHRIRO                        23
    d. Duress
    The Arizona Supreme Court concluded that Roger was
    not under duress from Robert and had failed to show that his
    desire to please his brother rose to the level of duress. See id.
    e. No Reasonable Foreseeability that Conduct
    Would Create a Grave Risk of Death
    According to the Arizona Supreme Court, Roger’s
    asserted immaturity, dependent personality, and idolizing of
    his brother, even if true, would not negate the foreseeability
    that use of guns to commit a robbery would create a grave
    risk of death. See id.
    f. Dysfunctional      Childhood      and     Family
    Relations
    Although Roger established that his childhood was
    dysfunctional, the Arizona Supreme Court concluded that “[a]
    difficult family background alone is not a mitigating
    circumstance.” Id. (citation omitted). The court held that
    “[f]amily background is a mitigating circumstance only if a
    defendant can show that something in that background had an
    effect or impact on his behavior that was beyond the
    defendant’s control.” Id. (citation omitted). In sum, the court
    concluded that the fact of Roger’s dysfunctional childhood
    was not a mitigating circumstance because “he fail[ed] to
    show how [his] background impacted his behavior at
    Grasshopper Junction.” Id.
    24                  MURRAY V. SCHRIRO
    g. Medical Problems
    The Arizona Supreme Court found “nothing mitigating in
    connection with [Roger’s] claimed alleged medical problems
    as a child.” Id. at 578.
    h. Remorse
    The Arizona Supreme Court concluded that Roger failed
    to establish that he was remorseful, noting specifically
    Roger’s letter to the trial judge, written just prior to the
    aggravation/mitigation hearings, that denied responsibility for
    the crimes. See id.
    i. Drug and Alcohol Use
    The Arizona Supreme Court found that Roger’s alcohol
    and drug use were not mitigating because the substance abuse
    was self-reported and largely uncorroborated, and because the
    physical activity at the crime was inconsistent with sensory
    impairment. See id.
    j. Mental Health
    The Arizona Supreme Court determined that Roger’s
    mental health issues, including hyperactivity and potentially
    other mental disorders, were entitled to “some nonstatutory
    mitigating weight.” Id. However, the court concluded that
    Roger “fail[ed] to prove that he suffer[ed] from brain
    damage.” Id.
    MURRAY V. SCHRIRO                        25
    k. Education
    The Arizona Supreme Court rejected Roger’s argument
    that because he became a paralegal despite having dropped
    out of high school, he was able to “reside within our society
    and abide by the rules . . .” Id. The Court noted that Roger’s
    accomplishments did not prevent commission of the heinous
    crimes against Morrison and Appelhans. See id.
    l. Residual or Lingering Doubt
    The Arizona Supreme Court concluded that there was no
    lingering doubt regarding Roger’s actual participation in the
    crime. Id.
    m. Felony Murder Instruction
    The Arizona Supreme Court explained that a felony
    murder instruction “can only be mitigating where there is
    some doubt regarding defendant’s specific intent to kill. . . .”
    Id. (citation omitted). Because there was a premeditation
    finding, Roger’s specific intent was not in doubt. See id.
    n. Cooperation
    Roger complained that the trial court failed to take his
    cooperation into consideration. See id. Roger relied on the
    fact that he refrained from shooting the police officer who
    apprehended him. See id. The Arizona Supreme Court held
    that refraining from killing one more person cannot possibly
    demonstrate cooperation as a mitigating factor. See id.
    26                  MURRAY V. SCHRIRO
    6. Weighing Aggravation and Mitigation
    The Arizona Supreme Court described the “very detailed
    special verdicts” completed by the trial court and concluded
    that the record reflected careful consideration of all the
    evidence and careful weighing of the mitigating and
    aggravating factors. See id. at 579.
    7. State’s Rebuttal Evidence
    Roger contended that the trial court improperly allowed
    the admission of evidence supporting the aggravating factors
    after the defense had rested its mitigation case. See id.
    However, the Arizona Supreme Court concluded that the state
    was entitled to call witnesses to rebut the mitigation evidence
    presented by Roger. See id. Regardless, the Arizona
    Supreme Court determined that the trial court had carefully
    reviewed the mitigating evidence, and “[t]here [wa]s no
    suggestion in the record that the [trial] judge considered the
    rebuttal evidence in connection with anything but mitigation.
    Id.
    D. Post-Conviction Proceedings
    Following his unsuccessful direct appeal, Roger filed a
    petition for post-conviction relief (PCR). Roger asserted that
    he had a genuine and irreconcilable conflict with his trial
    counsel and the trial court’s refusal to appoint new trial
    counsel was an abuse of discretion that effectively denied
    Roger’s right to counsel. Roger also advanced ineffective
    assistance of counsel (IAC) claims alleging: (1) trial
    counsel’s sleeping during substantial portions of the trial;
    (2) trial counsel’s failure to present the testimony of Jack
    Potts, M.D. at the mitigation hearing; (3) trial counsel’s
    MURRAY V. SCHRIRO                             27
    failure to obtain neurological or neuropsychological
    evaluations of Roger prior to sentencing; (4) trial counsel’s
    failure to call an exculpatory witness; (5) trial counsel’s
    ignorance of rehabilitation as a mitigating factor; (6) trial
    counsel’s failure to properly pursue a discovery violation by
    the prosecution; (7) trial counsel’s failure to properly
    discredit the detective who provided footprint testimony; and
    (8) trial counsel’s calling of witnesses who were prejudicial
    to the defense. Roger’s remaining claims challenged the trial
    court’s construction of nonstatutory mitigating evidence and
    the constitutionality of Arizona’s death penalty system.
    Following a hearing pursuant to Rule 32 of the Arizona
    Rules of Criminal Procedure, the PCR court set an
    evidentiary hearing for the claims asserting ineffective
    assistance of counsel for sleeping and for failing to obtain a
    neurological or neuropsychological examination. The
    balance of the claims were deemed precluded or were
    summarily rejected.
    The PCR court appointed a psychologist and
    neuropsychologist to evaluate Roger prior to the evidentiary
    hearing. Following the evidentiary hearing, the PCR court
    denied relief on the IAC claim asserting that counsel slept
    throughout major portions of the trial.7
    The Arizona Supreme Court summarily denied Roger’s
    subsequent petition for review, except as to Roger’s claim
    7
    After being examined by the court appointed psychologists, Roger
    notified the PCR court that he did not intend to rely on those experts.
    Subsequently, the State filed a motion to dismiss Roger’s IAC claim for
    trial counsel’s failure to obtain a neurological or neuropsychological
    examination, which the PCR court granted.
    28                   MURRAY V. SCHRIRO
    that he was entitled to a jury determination of the aggravating
    factors. Review of that claim was consolidated with the
    claims of other similarly situated inmates, and relief was
    denied. See State v. Towery, 
    64 P.3d 828
     (Ariz. 2003) (en
    banc). Roger filed a petition for writ of certiorari to the
    United States Supreme Court, which he later withdrew.
    Roger then filed a habeas petition in the federal district court.
    E. Federal Habeas Petition
    The fifty-six claims in Roger’s federal habeas petition
    largely mirrored those raised in Roger’s direct appeal. See
    Murray, 
    906 P.2d at
    553–78.
    Roger voluntarily withdrew the following nine claims as
    duplicative:
    •   Claim 43 (trial court’s failure to file a written special
    verdict);
    •   Claim 47 (IAC - failure to obtain neurological and
    neuropsychological evaluation);
    •   Claim 49 (IAC - failure to follow-up on objection to
    disclosure violations);
    •   Claim 50 (IAC - failure to discredit footprint expert);
    •   Claim 51 (IAC - called witnesses prejudicial to
    defense);
    •   Claim 52 (denial of sentencing jury);
    •   Claim 54 (arbitrary imposition of the death penalty);
    MURRAY V. SCHRIRO                        29
    •   Claim 55 (cruel and unusual punishment); and
    •   Claim 56 (nondeterrence of execution).
    The district court dismissed the following claims as
    procedurally barred:
    •   Claim 8 (footprint evidence);
    •   Claim 9 (impeachment of footprint expert);
    •   Claim 20 (viability of aggravating factors);
    •   Claim 21 (application of aggravating factors);
    •   Claim 23 (lack of funding for additional experts);
    •   Claim 24 (unconstitutionality of death penalty);
    •   Claim 25 (unconstitutionality of death penalty);
    •   Claim 26 (unfair balancing of aggravating and
    mitigating factors);
    •   Claim 27 (vagueness of heinous, cruel or depraved
    aggravating factor);
    •   Claim 28 (lack of meaningful review of sentence);
    •   Claim 29 (limitation on nonstatutory mitigation
    evidence);
    •   Claim 30 (IAC -failure to impeach footprint expert);
    30                   MURRAY V. SCHRIRO
    •   Claim 31 (IAC - failure to move for severance);
    •   Claim 32 (IAC - failure to secure experts);
    •   Claim 33 (IAC - failure to              prepare     for
    Aggravation/Mitigation Hearing);
    •   Claim 35 (violation of rights under International
    Law);
    •   Claim 36 (physical and psychological torture during
    execution);
    •   Claim 39 (improper consideration of evidence
    regarding aggravating factors);
    •   Claim 44 (irreconcilable conflict with attorney);
    •   Claim 46 (IAC - failure to call mental health expert);
    and
    •   Claim 53 (failure to channel sentencing discretion).
    District Court Discussion of Claims on the Merits
    Claim 1 - Change of Venue
    The district court determined that the Arizona Supreme
    Court’s decision denying relief was not contrary to or an
    unreasonable application of Supreme Court precedent, nor
    was it based on an unreasonable determination of the facts.
    The district court referenced the two types of prejudice
    resulting from pretrial publicity-presumed prejudice and
    actual prejudice. Because Roger did not argue actual
    MURRAY V. SCHRIRO                       31
    prejudice, the district court focused on presumed prejudice,
    albeit noting that the Arizona Supreme Court’s decision
    rejecting actual prejudice was not contrary to or an
    unreasonable application of Supreme Court precedent. The
    district court acknowledged that presumed prejudice is
    established when pretrial publicity utterly corrupts the trial
    atmosphere or incites a public passion that makes a fair trial
    unlikely.
    While the district court recognized that this case garnered
    significant media attention, it determined that the nature of
    the press coverage was not unduly pervasive or inflammatory.
    Rather, the media reports were factual recitations of the crime
    and the ensuing criminal proceedings. The district court
    therefore concluded that the Arizona Supreme Court did not
    unreasonably apply clearly established federal law in
    rejecting Roger’s claim of presumed prejudice, and that the
    state court’s decision was not based on an unreasonable
    determination of the facts.
    Claim 2 - Jury Sequestration
    The district court noted that because there is no
    constitutional right to jury sequestration, to obtain habeas
    relief, Roger was required to show that he was prejudiced by
    the failure to sequester the jury.
    The occurrences referenced by Roger to support his claim
    of prejudice included the security measures in effect during
    trial, negative comments made by police officers outside the
    courtroom, a conversation involving the prosecutor that may
    have been overheard by two jurors, and the attendance at trial
    of a juror’s spouse. The district court relied on the evidence
    presented to the state trial court that no jurors were exposed
    32                  MURRAY V. SCHRIRO
    to the officers’ comments, that the jurors were admonished to
    disregard any comments by the prosecutor during the break,
    and that the juror and his spouse did not discuss the case.
    Because the state court’s determination that Roger failed to
    establish prejudice withstood AEDPA review, the district
    court denied habeas relief on this claim.
    Claim 3 - Severance
    The state court’s conclusion that Roger failed to establish
    prejudice from the joint trial, the district court held, was not
    based on an unreasonable application of clearly established
    federal law or an unreasonable determination of the facts.
    There was no indication that the defenses were antagonistic
    or mutually exclusive. Neither brother testified and no
    inculpatory statements were introduced. The nature and
    effect of the overwhelming evidence, which was admissible
    against both brothers, would not have changed if the trial
    were severed. The district court thus concluded that this
    claim was without merit, and denied relief.
    Claim 4 - Jury Selection Process
    The district court rejected this claim because Roger failed
    to demonstrate that young people or persons living in rural
    areas are distinctive groups as is required to establish
    underrepresentation or exclusion of a cognizable group from
    the jury selection process. The Arizona Supreme Court had
    rejected this claim on the basis of Duren v. Missouri,
    
    439 U.S. 357
     (1979). Because Roger could not show that
    either Duren or any other clearly established Supreme Court
    authority recognized young people or people living in rural
    areas as distinctive groups for fair-cross section purposes, the
    MURRAY V. SCHRIRO                                33
    district court concluded that the state court had not
    unreasonably applied clearly established federal law.8
    Claim 5 - Fair Cross-Section/Equal Protection
    The district court determined that, as with Claim 4, the
    Arizona Supreme Court did not unreasonably apply United
    States Supreme Court precedent by concluding that Roger
    failed to establish that a distinctive group was improperly
    excluded from the jury pool.
    Claim 6 - Batson
    The state court’s determination that the prosecutor’s
    reasons for striking each of the challenged jurors were race-
    neutral, the district court concluded, was valid under AEDPA.
    One juror was excused due to the state’s criminal
    investigation of her relatives and the other juror was excused
    because the prosecutor knew the juror socially and was
    concerned that he might be too willing to agree to avoid
    discord. The district court determined that the Arizona
    Supreme Court neither unreasonably applied Batson nor
    based its decision on an unreasonable determination of the
    facts in the record.
    8
    In Duren, the United States Supreme Court held that a defendant in a
    criminal case has a Sixth Amendment right to a jury pool that constitutes
    a fair cross-section of the community. See Duren, 
    439 U.S. at
    359–60.
    This constitutional right is violated only if a distinctive group is excluded
    from jury service. See 
    id. at 364
    .
    34                  MURRAY V. SCHRIRO
    Claim 7 - Revisiting the Crime Scene
    The district court determined that Roger did not establish
    prejudice due to the trial court’s denial of his request to
    revisit the crime scene more than a year after the crime was
    committed and after the crime scene had been cleaned. The
    district court concluded that Roger failed to show that the
    evidence sought was material or that the verdict would have
    been different, particularly in view of the overwhelming
    evidence of guilt. The district court denied relief on this
    claim, affirming the state court’s determination under
    AEDPA.
    Claim 10 - Hybrid Representation
    The district court concluded that the Arizona Supreme
    Court’s decision denying Roger’s hybrid representation claim
    was not contrary to or an unreasonable application of
    Supreme Court precedent. Roger did not assert that the state
    court’s ruling violated his constitutional rights in any
    particular fashion. Additionally, the district court observed
    that Roger failed to cite any clearly established law
    supporting his claim of entitlement to hybrid representation.
    The district court denied relief on this claim.
    Claim 11 - Gruesome Photographs
    The district court found that Roger was not prejudiced by
    the photographs of the victims and of the crime scene that
    were admitted into evidence. The court reasoned that even if
    the pictures were improperly admitted, the error was not
    prejudicial and did not rise to the level of a due process
    violation because the evidence against Roger was
    overwhelming. The district court denied relief, concluding
    MURRAY V. SCHRIRO                       35
    that the state court’s determination was neither contrary to,
    nor an unreasonable application of, clearly established federal
    law.
    Claim 12 - Prosecutorial Misconduct
    The district court determined that a detective’s joking
    about the FBI while testifying, when viewed in the context of
    the entire proceedings, “was innocuous and could have had
    no effect on the fairness of the trial,” particularly since the
    jury was instructed to disregard the offending comments. The
    district court also determined that the prosecutor’s statement
    during closing argument tying the .25 caliber shell found at
    the crime scene to Roger was a permissible inference that the
    prosecutor was allowed to draw based on the evidence.
    Regarding the prosecutor’s reference to the brothers as the
    “boys from Alabama” during closing argument, the district
    court determined that the “prosecutor’s use of this rhetorical
    device did not carry the connotations [Roger] ascribe[d] to it
    and did not deprive him of a fair trial.”
    Finally, the district court determined that the comments
    made by the prosecution “that the defendants experienced a
    ‘sick excitement’ and ‘some sick crazy high’” as they
    committed the crimes did not result in a due process
    violation. The trial court neutralized any inappropriateness
    by instructing the jury not to be influenced by passion or
    prejudice, and that statements of counsel are not evidence.
    The district court denied relief because it determined that the
    Arizona Supreme Court did not unreasonably apply clearly
    established federal law holding that inappropriate remarks
    must infect the trial with unfairness to warrant reversal.
    36                  MURRAY V. SCHRIRO
    Claim 13 - Reference to In-Custody Status
    Roger objected and moved for a mistrial after reference
    was made to blood being drawn from Roger by a “nurse in
    jail.” Another reference was made to the fact that Roger’s
    clothing was taken while he was in custody. The trial court
    sustained the objection to the testimony regarding blood
    being drawn and struck the answer. Roger’s motion for a
    mistrial was denied.
    The district court agreed with the state court that these
    isolated references to Roger’s in-custody status did not
    warrant a mistrial. The district court concluded that relief
    was not warranted under Estelle v. Williams, 
    424 U.S. 501
    (1976), and Roger cited no Supreme Court case supporting
    the proposition that the mere mention of the fact that a
    defendant is in custody constitutes a due process violation.
    Accordingly, the district court denied relief on this claim
    under AEDPA.
    Claim 14 - Sufficiency of Evidence
    Roger challenged the sufficiency of evidence supporting
    his armed robbery and felony murder convictions. The
    district court found that the state court did not unreasonably
    apply clearly established federal law, Jackson v. Virginia,
    
    443 U.S. 307
     (1979), in concluding that a rational factfinder
    could determine from the evidence that Roger committed
    armed robbery and that the deaths of the victims occurred
    during the course of or in furtherance of the armed robbery.
    Nor was the state court’s conclusion an unreasonable
    determination of the facts, given the use of several weapons,
    evidence of a struggle, and the fact that property was taken.
    The district court, therefore, denied relief on this claim.
    MURRAY V. SCHRIRO                         37
    Claim 15 - Jury Instruction Addressing the State’s
    Failure to Preserve Evidence
    Roger alleged that the trial court violated his rights by
    failing to give a jury instruction regarding the state’s failure
    to preserve evidence. The district court opined that Roger
    had failed to establish that the officers who conducted the
    investigation acted in bad faith with respect to gathering,
    preserving, and analyzing the evidence. The witnesses for the
    state all gave credible explanations for the methods used to
    gather and preserve evidence, showing at most negligence on
    the part of investigators. More importantly, Roger failed to
    establish that the exculpatory nature of any unpreserved
    evidence was apparent before it was destroyed, or that the
    evidence was material. Because the state court did not
    unreasonably apply clearly established federal law in
    rejecting this claim, see California v. Trombetta, 
    467 U.S. 479
    , 488 (1984), the district court denied relief under
    AEDPA.
    Claim 16 - Intoxication Instruction
    The district court determined that Roger was not denied
    a fair trial when the trial court declined to give an intoxication
    instruction to the jury. The trial court found, and the Arizona
    Supreme Court affirmed, that Roger was drinking at a bar
    prior to the murders, but that there was no evidence that he
    was in fact intoxicated. Reviewing the state court decision
    under AEDPA, the district court presumed that finding to be
    correct and concluded that Roger had not overcome that
    presumption of correctness with clear and convincing
    evidence. The district court thus denied this claim.
    38                    MURRAY V. SCHRIRO
    Claim 17 - Lesser Included Offense Instruction
    The district court found that the state court properly
    applied Supreme Court precedent, Hopper v. Evans, 
    456 U.S. 605
    , 611 (1982), in concluding that there was insufficient
    evidence in the record to persuade a rational factfinder that
    Roger committed second degree murder rather than first
    degree murder, thereby necessitating a lesser included offense
    jury instruction. The district court also noted that the
    evidence of premeditation was overwhelming.
    Claim 18 - Unconstitutionality of Arizona’s Felony
    Murder Statute
    The district court determined that there is no clearly
    established federal law holding that a felony murder statute
    must include lesser offenses. Citing Hopkins v. Reeves,
    
    524 U.S. 88
    , 96–97 (1998), the district court determined that
    Supreme Court precedent was to the contrary.9 The district
    court denied this claim.
    Claim 19 - Unconstitutionality of Sentence Imposition by
    Judge Under State Law
    The district court denied this claim as foreclosed by
    Schriro v. Summerlin, 
    542 U.S. 348
    , 358 (2004), which held
    that the Supreme Court’s decision in Ring v. Arizona,
    9
    In Hopkins, the United States Supreme Court held that there is no
    requirement to give an instruction for second degree murder when the
    defendant is charged with capital felony murder, unless second degree
    murder is a lesser included offense of felony murder under state law.
    
    524 U.S. at
    94–97.
    MURRAY V. SCHRIRO                       39
    
    536 U.S. 584
     (2002), requiring jury sentencing in capital
    cases, was not retroactive.
    Claim 22 - Double Jeopardy
    Roger took the position that applying the aggravator for
    multiple victims subjected him to double jeopardy. The
    district court explained that Roger was not being punished
    twice for the same crime. Rather, there were two crimes, two
    convictions, and two sentences. Citing Poland v. Arizona,
    
    476 U.S. 147
    , 156 (1986), and Lowenfield v. Phelps, 
    484 U.S. 231
    , 244–46 (1988), the district court clarified that statutory
    aggravating factors are not offenses for double jeopardy
    purposes, but are used to guide the jury in determining an
    appropriate sentence in capital cases. The district court
    concluded that the Arizona Supreme Court’s decision on this
    issue was not contrary to or an unreasonable application of
    clearly established federal law on double jeopardy.
    Claim 34 – Lack of Legitimate Penological Purpose
    Served by Delayed Execution
    The district court denied this claim as a matter of law
    because the United States Supreme Court has not determined
    that a lengthy incarceration prior to execution constitutes
    cruel or unusual punishment. The district court also observed
    that several circuit courts, including the Ninth Circuit, have
    held that prolonged incarceration prior to execution does not
    violate the Eighth Amendment. See, e.g., McKenzie v. Day,
    
    57 F.3d 1493
    , 1493–94 (9th Cir. 1995) (en banc).
    40                  MURRAY V. SCHRIRO
    Claim 37 – Incompetence at Time of Execution
    Roger asserted that he would be incompetent at the
    anticipated time of execution. The district court dismissed
    this claim without prejudice as premature, with consent of the
    parties.
    Claim 38 - Access to the Law Library
    The district court found that the Arizona Supreme Court
    did not unreasonably apply clearly established federal law
    when it decided that Roger was provided adequate assistance
    from persons trained in the law, satisfying his constitutional
    right of access to the courts. The district court ruled that the
    state court’s ruling was consistent with Bounds, 
    430 U.S. at 828
    , which held that constitutional access to the courts is
    satisfied by access to a law library or adequate assistance
    from a person trained in the law.
    Claims 40/41 - Statutory and NonStatutory Mitigation
    Evidence Outweighing Aggravating Factors
    The district court dismissed the portion of these claims
    asserting violations of the Fifth, Sixth, and Seventh
    Amendments as procedurally barred. The district court also
    denied relief on the portion of Roger’s claim asserting under
    the Eighth and Fourteenth Amendments, that the sentencing
    court failed to properly weigh aggravating and mitigating
    factors. The district court determined that this was an
    asserted error of state law, and thus no federal habeas relief
    was available. See Estelle v. McGuire, 
    502 U.S. 62
    , 67–68
    (1991).
    MURRAY V. SCHRIRO                         41
    Claim 42 - Unconstitutional Breadth of Prosecution’s
    Discretion to Seek the Death Penalty
    The district court denied this claim because no clearly
    established Supreme Court precedent requires that a state
    provide specific standards instructing a sentencing court or
    jury regarding how to weigh aggravating and mitigating
    evidence. See Ortiz v. Stewart, 
    149 F.3d 923
    , 944 (9th Cir.
    1998) (citing Zant v. Stephens, 
    462 U.S. 862
    , 880 (1983) for
    the proposition that the United States Constitution requires
    only that a state provide procedures to guide the sentencer’s
    discretion generally). In addition, the district court noted that
    we rejected this very argument in Smith v. Stewart, 
    140 F.3d 1263
    , 1272 (9th Cir. 1998).
    Claim 45 - Ineffective Assistance of Counsel - (sleeping
    through significant portions of the trial)
    The district court determined, in light of the evidence
    presented in the state court proceedings, that the state court
    did not rely on an unreasonable determination of facts in
    rejecting Roger’s allegation that his counsel slept throughout
    a significant portion of the trial and thus was constitutionally
    ineffective. Only Roger testified that he actually observed his
    lawyer sleeping, and multiple other witnesses testified that
    they did not see the lawyer asleep and that he was active and
    zealously involved in Roger’s defense. Additionally, the
    district court noted testimony from Roger’s lawyer and from
    co-counsel that Roger did not complain about his lawyer
    falling asleep in court.
    The district court also rejected Roger’s argument that he
    did not receive a fair hearing because the trial court judge was
    a key witness and also the presiding judge for the PCR
    42                   MURRAY V. SCHRIRO
    proceedings. The district court relied on Gerlaugh v. Stewart,
    
    129 F.3d 1027
    , 1036 (9th Cir. 1997), where we held that a
    trial court judge may also preside over post-conviction
    proceedings. The district court denied this claim.
    Claim 48 - Ineffective Assistance of Counsel - (failure to
    present exculpatory witness)
    The PCR court concluded that Robert’s counsel was not
    ineffective when attempting to locate the alleged exculpatory
    witness. The district court determined that even if Roger’s
    counsel was ineffective in failing to present that same
    witness, the outcome of the trial would have been the same.
    The proposed exculpatory testimony that the victim was seen
    with three other men on the night of the murder would not
    have overcome the insurmountable inculpatory evidence.
    Because Roger could not establish prejudice in any event, the
    state court’s determination was not contrary to clearly
    established federal law, see Strickland v. Washington,
    
    466 U.S. 668
    , 687–88 (1984).
    The district court declined to issue a Certificate of
    Appealability (COA) after denying Roger’s petition. Roger
    subsequently filed a timely appeal, and we issued a COA for
    the following claims:
    •   Claim 1 - denial of requested change of venue;
    •   Claim 5 - denial of fair cross-section in the jury
    venire;
    •   Claim 6 - Batson violation;
    MURRAY V. SCHRIRO                       43
    •   Claim 7 - denial of request to inspect the crime
    scene;
    •   Claim 16 - omission of voluntary intoxication
    instruction;
    •   Claim 17 -      denial of a lesser included offense
    instruction;
    •   Claim 26 - failure to consider mitigating evidence;
    •   Claim 44 - denial of request to replace counsel due to
    irreconcilable conflict;
    •   Claim 45 - ineffective assistance of counsel (IAC)
    due to counsel’s inattentiveness; and
    •   Claim 48 - IAC due to counsel’s failure to present
    exculpatory witness.
    II. STANDARDS OF REVIEW
    We review de novo a district court’s denial of a habeas
    petition. See Fairbank v. Ayers, 
    650 F.3d 1243
    , 1250 (9th
    Cir. 2011), as amended.
    Because Roger filed his petition for a writ of habeas
    corpus after April 24, 1996, the Antiterrorism and Effective
    Death Penalty Act (AEDPA) applies. See Valerio v.
    Crawford, 
    306 F.3d 742
    , 763 (9th Cir. 2002) (en banc).
    Under AEPDA, we are barred from granting relief unless the
    state court decision: “(1) was contrary to clearly established
    federal law as determined by the Supreme Court, (2) involved
    an unreasonable application of such law, or (3) . . . was based
    44                  MURRAY V. SCHRIRO
    on an unreasonable determination of the facts in light of the
    record before the state court.” Fairbank, 
    650 F.3d at 1251
    (citation and internal quotation marks omitted).
    A state court’s decision is contrary to clearly established
    federal law if its decision contradicts the governing law
    articulated by the Supreme Court or reaches a result different
    than that reached by the Supreme Court on materially
    indistinguishable facts. See Terry Williams v. Taylor,
    
    529 U.S. 362
    , 405–06 (2000). A state court’s decision is an
    unreasonable application of clearly established federal law
    when the state court identifies the correct legal rule, but
    applies it to a new set of facts in a way that is objectively
    unreasonable. See 
    id. at 407
    .
    “Clearly established federal law means the governing
    legal principle or principles set forth by the Supreme Court at
    the time the state court renders its decision.” Xiong v. Felker,
    
    681 F.3d 1067
    , 1073 (9th Cir. 2012) (citation omitted).
    Although “circuit court precedent may be persuasive in
    determining what law is clearly established and whether a
    state court applied that law unreasonably[,]” Stanley v.
    Cullen, 
    633 F.3d 852
    , 859 (9th Cir. 2011) (citation omitted),
    our determination of clearly-established law under AEDPA
    must ultimately rest on a Supreme Court holding, not on dicta
    that we have interpreted in circuit decisions. See Carey v.
    Musladin, 
    549 U.S. 70
    , 74, 77 (2006); see also Wright v. Van
    Patten, 
    552 U.S. 120
    , 125–26 (2008) (reiterating that a
    Supreme Court case must have “squarely address[ed]” a
    certain issue and given a “clear answer” regarding the
    applicable legal rule to create “clearly established federal law
    for AEDPA purposes”).
    MURRAY V. SCHRIRO                        45
    Under AEDPA, we review the “last reasoned decision”
    from the state court, which means that when the final state
    court decision contains no reasoning, we may look to the last
    decision from the state court that provides a reasoned
    explanation of the issue. See Shackleford v. Hubbard,
    
    234 F.3d 1072
    , 1079 n.2 (9th Cir. 2000). In circumstances
    where no decision from the state court articulates its
    underlying reasoning, “the habeas petitioner’s burden still
    must be met by showing there was no reasonable basis for the
    state court to deny relief. . . .” Harrington v. Richter, 
    131 S. Ct. 770
    , 784 (2011); see also Johnson v. Williams, 
    133 S. Ct. 1088
    , 1096 (2013). In determining whether a petition has met
    this burden, we “must determine what arguments or theories
    supported or . . . could have supported [ ] the state court’s
    decision;” and then assess “whether it is possible fairminded
    jurists could disagree that those arguments or theories are
    inconsistent with the holding in a prior decision of [the
    Supreme Court]. . . .” Richter, 
    131 S. Ct. at 786
     (citation
    omitted). Accordingly, “when the state court does not supply
    reasoning for its decision, we are instructed to engage in an
    independent review of the record and ascertain whether the
    state court’s decision was objectively unreasonable.” Walker
    v. Martel, 
    709 F.3d 925
    , 939 (9th Cir. 2013) (citation and
    internal quotation marks omitted).” “Crucially, this is not a
    de novo review of the constitutional question. Rather, even
    a strong case for relief does not mean the state court’s
    contrary conclusion was unreasonable.” 
    Id.
     (citations and
    internal quotation marks omitted).
    Finally, so long as we are reviewing a petitioner’s claim
    under AEDPA, our review is limited to the facts before the
    state court and the petitioner is not entitled to an evidentiary
    hearing in federal court. See Cullen v. Pinholster, 
    131 S. Ct. 1388
    , 1398 (2011).
    46                  MURRAY V. SCHRIRO
    III.      DISCUSSION—Issues Raised in Federal Appeal
    A. Claim One - Denial of Requested Change of Venue
    Roger argues that the denial of his change of venue
    motion violated his due process right to a fair trial. He
    contends that there was a barrage of pretrial publicity that was
    false and prejudicial. He also asserts that there is a
    heightened obligation to change venue in capital cases.
    The Sixth Amendment guarantees a defendant’s right to
    trial before an impartial jury. See Skilling v. United States,
    
    130 S. Ct. 2896
    , 2912–13 (2010). When an impartial jury
    cannot be empaneled due to pretrial publicity, a change of
    venue at the request of the defendant is appropriate to prevent
    violation of the defendant’s due process right to a fair trial.
    See 
    id. at 2913
    .
    To support a change of venue request, the defendant must
    establish either presumed or actual prejudice. See 
    id. at 2907
    .
    The Supreme Court has explained that a court may presume
    prejudice only when the “trial atmosphere [is] utterly
    corrupted by press coverage,” Dobbert v. Florida, 
    432 U.S. 282
    , 303 (1977) (citing Murphy v. Florida, 
    421 U.S. 794
    , 798
    (1975)), or when “a wave of public passion . . . ma[kes] a fair
    trial unlikely by the jury . . .” Patton v. Yount, 
    467 U.S. 1025
    ,
    1040 (1984) (internal quotation marks omitted). Juror
    exposure to news reports of a crime–even “pervasive, adverse
    publicity”–is not enough alone to trigger a presumption of
    prejudice to the defendant’s due process rights. Skilling,
    
    130 S. Ct. at 2916
     (describing the “vivid, unforgettable” and
    “blatantly prejudicial” information at issue in the handful of
    cases in which the Supreme Court has presumed prejudice as
    a result of pretrial publicity) (citing Rideau v. Louisiana,
    MURRAY V. SCHRIRO                         47
    
    323 U.S. 723
     (1963); Estes v. Texas, 
    381 U.S. 532
     (1965);
    Sheppard v. Maxwell, 
    384 U.S. 333
     (1966)). Rather, a
    presumption of prejudice “attends only the extreme case.” Id.
    at 2915.
    In the alternative, a defendant may establish the existence
    of actual prejudice if, during voir dire, potential jurors who
    have been exposed to pretrial publicity express bias or
    hostility toward the defendant that cannot be cast aside. Id.
    at 2918 & n.20 (citing Mu’Min v. Virginia, 
    500 U.S. 415
    , 427
    (1991)). The reviewing court must give deference to the trial
    court’s assessment of the impartiality of potential jurors,
    since that assessment “is ordinarily influenced by a host of
    facts impossible to fully capture in the record . . .” Skilling,
    
    130 S. Ct. at 2918
    ; see also Mu’Min, 
    500 U.S. at 427
    . (“The
    judge of that court sits in the locale where the publicity is said
    to have had its effect and brings to his evaluation of any such
    claim his own perception of the depth and extent of news
    stories that might influence a juror. . . .”).
    The last reasoned state court decision addressing the
    pretrial publicity issue was the Supreme Court of Arizona
    opinion. See Murray, 
    906 P.2d at 559
    . The state supreme
    court held that Roger failed to demonstrate media attention so
    extreme that prejudice could be presumed. See 
    id.
     Roger
    introduced several newspaper articles and presented two
    witnesses, a news director and the defense investigator, to
    establish presumed prejudice. The newspaper articles were
    primarily factual descriptions of the crime and the court
    proceedings. Roger highlights two newspaper articles and a
    photograph to support his argument. The articles’ captions
    were “Two Alabama Brothers Are Arraigned for Brutal
    Slayings” and “Murray Brothers Are Suspects in Crime
    Spree.” The referenced photograph depicted Robert and
    48                  MURRAY V. SCHRIRO
    Roger standing near a transport van. The text below the
    photograph stated that at least eight law enforcement officers
    escorted the brothers, and that two armed officers were
    stationed on nearby rooftops.
    The witnesses testified that people in the area were aware
    through news reports of the brothers and of the crimes
    committed, and that some members of the community had
    expressed the view that the brothers were guilty. After
    considering the evidence presented, the state court concluded
    that Roger failed to specify “what pretrial publicity was so
    outrageous,” as to create an atmosphere that was “utterly
    corrupted.” Murray, 
    906 P.2d at 559
     (citation omitted)
    (emphasis in the original). Nor was the court convinced that
    the security measures implemented for trial “creat[ed] a
    contaminated atmosphere,” warranting a presumption of
    prejudice. 
    Id.
     Finally, the court found that no actual
    prejudice was shown. Although some of the prospective
    jurors were aware of the crime generally, potential juror bias
    was probed extensively in the jury questionnaire and during
    voir dire. See 
    id.
     Any prospective juror who failed to
    convince the court that he could be objective despite the
    pretrial publicity was not allowed to remain on the jury panel.
    See 
    id.
     Once seated, jurors were repeatedly admonished to
    avoid media coverage of the trial proceedings. See 
    id.
     After
    reviewing this record, the Arizona Supreme Court affirmed
    the trial court’s denial of the requested venue change. See 
    id.
    Roger relies on Coleman v. Kemp, 
    778 F.2d 1487
     (11th
    Cir. 1985) and Daniels v. Woodford, 
    428 F.3d 1181
     (9th Cir.
    2005) to support his argument that the state court’s decision
    was unreasonable. As the Supreme Court has made clear,
    however, simply because a state court decision is inconsistent
    with circuit precedent does not mean that it is an
    MURRAY V. SCHRIRO                         49
    unreasonable application of clearly established federal law
    “as determined by the Supreme Court.” Richter, 
    131 S. Ct. at 784
     (quoting 
    28 U.S.C. § 2254
    ); see also Marshall v.
    Rodgers, 
    133 S. Ct. 1446
    , 1450–51 (2013). Thus, our circuit
    precedent is only relevant to the extent that, “in accordance
    with [our] usual law-of-the circuit procedures, . . . [we] ha[ve]
    already held that the particular point in issue is clearly
    established by Supreme Court precedent . . .” Marshall,
    
    133 S. Ct. at 1450
     (citations omitted). “[We] may not
    canvass circuit decisions to determine whether a particular
    rule of law is so widely accepted among the Federal Circuits
    that it would, if presented to th[e] [Supreme] Court be
    accepted as correct. . . .” 
    Id. at 1451
     (citations omitted).
    Therefore, Roger’s argument that his case is similar to the
    presumed prejudice determinations in Coleman and Daniels,
    see Coleman, 778 F.2d at 1537–38, Daniels, 
    428 F.3d at 1211
    , is inapposite to our analysis on habeas review.
    Our precedent does, however, require that we “conduct an
    independent review of news reports about the case.” Daniels,
    
    428 F.3d at 1210
     (citation omitted). An independent review
    of the record reveals that Roger presented a number of
    newspaper articles to the state court. The bulk of the pretrial
    articles were published months prior to trial. And it is
    important to note that not all of these articles are from
    Mohave County, or are even about Roger. Some of the
    articles, particularly the editorials, were about the death
    penalty in general. It appears that this is because, around the
    time of Roger’s trial, Arizona was preparing to execute a man
    for the first time since 1963. This situation created interest,
    leading people to question whether the death penalty should
    be supported by society in general. In fact, some of the
    editorials actually questioned whether the death penalty is
    appropriate. One editorial stated that killers should be put six
    50                   MURRAY V. SCHRIRO
    feet under, but the statement was a general one, not directed
    toward Roger, neither assuming his guilt, nor calling for his
    punishment. Only two editorials actually referenced Roger.
    One referred to “the Murray brothers” being represented by
    Frank Dickey. The editorial continued by criticizing Mr.
    Dickey’s personal views concerning the death penalty. The
    other was a letter to the editor praising the judicial system for
    denying the defense motion to suppress evidence obtained
    after a license plate check by an Arizona DPS officer resulted
    in the Murrays’ apprehension. The letter was anything but
    inflammatory toward Roger, again not even referring to him
    by name, but as one of the Murray brothers.
    The vast majority of the articles submitted by Roger
    reported only facts, relaying information regarding what
    happened at trial on particular days. One article, that ran long
    before trial, mentioned that the victims were shot “execution
    style” and that an elderly woman had also been attacked by
    the brothers in Alabama. The problem with relying on this
    article is that it ran in an Alabama newspaper, thousands of
    miles from the trial venue. An article describing the brothers
    as suspects in a crime spree did run in the Kingman, Arizona,
    newspaper over a year before the trial. The article detailed
    allegations of a robbery and assault against an elderly woman
    in Alabama. Finally, as mentioned by Roger, a newspaper
    ran an article about the venue hearing, including a picture of
    the brothers being escorted to the jail and a description of
    armed officers “perched on rooftops” overlooking them.
    Roger also proffered evidence of radio publicity. David
    Hawkins, the news and sports director for various local radio
    stations, testified that the radio stations’ transmission areas
    covered the bulk of the residents in Mohave County.
    Mr. Hawkins brought to court copies of the vast majority of
    MURRAY V. SCHRIRO                        51
    the stories that had been broadcast on the radio. He testified
    that the community was “upset with what happened to the
    victims in this case, and they are curious about the outcome
    of this particular–not this particular proceeding, but the whole
    of this case.” Mr. Hawkins further testified that he had heard
    some expressed opinions that the defendants were guilty,
    although he had only spoken to a “couple dozen” members of
    the community–mostly people in legal circles, reporters and
    social acquaintances.
    Of the fifty-seven stories Mr. Hawkins brought to court,
    some mentioned that the brothers were connected to a
    robbery/assault in Alabama, that they might be linked to
    murders in California and New Mexico, and that the murders
    were committed “execution style.” Overall, however, the
    radio news reports were brief and factual in nature.
    Finally, John Freeman, a defense investigator, testified
    that he had spoken to a number of people about the case who
    thought the brothers were guilty and should “get a quick
    trial.”
    We conclude that the Arizona Supreme Court’s
    determination that prejudice could not be presumed was not
    contrary to or an unreasonable application of Supreme Court
    precedent, and while it does not impact our AEDPA inquiry,
    we note that the ruling was consistent with Coleman and
    Daniels as well.
    The publicity surrounding Roger’s trial fell far short of
    the “utterly corrupted” trial environment that existed in
    Rideau, Estes, and Sheppard, the three cases the Supreme
    Court described in Skilling as establishing the threshold for
    presumed prejudice due to pretrial publicity. Skilling, 130 S.
    52                  MURRAY V. SCHRIRO
    Ct. at 2913–14. In Rideau, the defendant’s confession was
    broadcast on television three times, and two-thirds of the
    local community saw or heard the broadcast. See 373 U.S. at
    724–26. In Estes, there was extensive media presence in the
    courtroom, including microphones, television cameras, and
    photographers; these facts combined with the live telecast and
    rebroadcast of a pre-trial hearing, led the Court to conclude
    that such intrusion was inherently prejudicial. See 
    381 U.S. at
    550–51. Finally, in Sheppard, news articles emphasized
    that the defendant’s extramarital affairs were a motive for the
    crime, characterized the defendant as a liar, and described
    incriminating evidence and discrepancies in defendant’s
    statements. See 
    384 U.S. at
    340–41. Likewise, in both
    Coleman and Daniels, an onslaught of inflammatory publicity
    resulted in a denial of due process. See Coleman, 778 F.2d at
    1538–39; see also Daniels, 
    428 F.3d at 1212
    . For example,
    in Coleman, we emphasized comments on the evidence from
    law enforcement officials, derogatory descriptions of the
    defendants, remarks from potential defense attorneys seeking
    to avoid appointment, and editorials expressing the
    appropriateness of the death penalty. See Coleman, 778 F.2d
    at 1539–40.
    By contrast, news coverage of the crimes committed by
    the Murray brothers was almost invariably fact–based. There
    was no inflammatory barrage of information that would be
    inadmissible at trial. Rather, the news reports focused on
    relaying mainly evidence presented at trial. These news
    reports do not come anywhere close to the kind of “vivid,
    unforgettable” and “blatantly prejudicial” atmosphere that
    occurred in Rideau, Estes, and Sheppard. Skilling, 
    130 S. Ct. at
    2916–17.
    MURRAY V. SCHRIRO                        53
    Roger seeks to avoid this conclusion by arguing that the
    legal standard for prejudice is somehow lower in capital
    cases, contending that there is a “heightened obligation to be
    particularly serious to the need for change of venue for capital
    cases.” But Supreme Court precedent provides no support for
    this proposition. In Dobbert, to illustrate, the Court expressly
    applied Murphy in upholding the petitioner’s death sentence.
    See Dobbert, 
    432 U.S. at 302
    . The Court has not since
    departed from that standard.
    Roger also notes that Murphy sets forth a “totality of the
    circumstances” test for whether media coverage has “utterly
    corrupted” the trial, and that the Arizona Supreme Court
    therefore erred in holding that Roger fell short of the standard
    because he “failed to show what pretrial publicity was so
    outrageous.” That is, Roger believes that he was subjected to
    too high a bar, in that he should not have been required to cite
    specific instances of outrageous publicity. But the Arizona
    Supreme Court cited and considered the evidence that Roger
    advanced, and simply found that because none of the
    evidence was individually problematic, it would be
    impossible to conclude that the totality of circumstances had
    “utterly corrupted” the trial as described in Murphy. Murray,
    
    906 P.2d at 559
    . This conclusion was not contrary to or an
    unreasonable application of clearly established federal law, as
    summarized most recently in Skilling.
    In addition, we conclude that the Arizona Supreme
    Court’s determination that no actual prejudice was shown was
    not contrary to or an unreasonable application of Supreme
    Court precedent. See Mu’ Min, 
    500 U.S. at
    429–30.
    Although some of the prospective jurors were aware of the
    crime generally, potential juror bias was probed extensively
    in the jury questionnaire and during voir dire. See Murray,
    54                  MURRAY V. SCHRIRO
    
    906 P.2d at 559
    . Any prospective juror who failed to
    convince the court that he could be objective despite the
    pretrial publicity was not allowed to remain on the jury panel.
    See 
    id.
     Once seated, jurors were repeatedly admonished to
    avoid media coverage of the trial proceedings. See 
    id.
     After
    reviewing this record, the Arizona Supreme Court affirmed
    the trial court’s denial of the requested venue change. See 
    id.
    Our independent review of the voir dire record reveals
    that of the seventy-seven potential jurors, only one indicated
    that she had previously formed an opinion regarding the case.
    That potential juror stated: “Being people were arrested, I
    automatically thought guilty.” That same juror indicated that
    it would be difficult for her to overcome her opinion of guilt
    based upon the arrest of an individual. That juror was
    excused by the trial judge, and only two other potential jurors
    mentioned that they had opinions about the circumstances of
    the crime. The one potential juror’s opinion concerned the
    horrible nature of the crime, not the guilt or innocence of
    Roger, while the other potential juror’s opinion was regarding
    how a crime like this could happen, not the guilt or innocence
    of Roger. Both indicated that they could set aside their
    opinions and be fair and impartial. The record indicates that
    no other potential juror had extensive knowledge of the case;
    indeed, some even stated that they had never heard of the
    case. We therefore conclude that the Arizona Supreme
    Court’s determination that Roger did not establish either
    presumed or actual prejudice was neither contrary to nor an
    unreasonable application of Supreme Court precedent.
    MURRAY V. SCHRIRO                              55
    B. Claim Five - Denial of Fair Cross-Section of the
    Community in the Jury Venire.
    Roger contends that the jury commissioner purposely
    excluded jurors who stated that it was contrary to their
    Christian beliefs to sit in judgment of others. According to
    Roger, this purposeful exclusion violated his rights under the
    Sixth Amendment (the Fair Cross-Section Doctrine) and the
    Equal Protection Clause of the Fourteenth Amendment.10
    On direct appeal, Roger argued that the Sixth and
    Fourteenth Amendments had been violated because the jury
    list was composed of an out-of-date driver’s license list and
    did not include voter registration lists. Moreover, Roger
    asserted that even after the jury list was corrected, because
    the deadline for returning jury questionnaires was after the
    date the jury would be picked, potential jurors from rural
    areas were likely to be underrepresented. Finally, Roger
    argued that because the state notified jurors to present
    themselves for service by telephone, its procedures
    systematically excluded individuals who could not afford
    telephones. Roger contended that these failures resulted in
    the exclusion of young people, poor people, and those hailing
    from rural areas, thereby depriving the brothers of a jury of
    their peers who were most likely to “understand” them, since
    the brothers were young, poor, and from rural Alabama.
    The Arizona Supreme Court thoroughly dealt with the
    issues raised by Roger on direct appeal, holding that under
    Duren and relevant precedent of its own, Roger failed to
    10
    The district court found that Roger did not raise the Fifth and Eighth
    Amendment aspects of this claim in state court, rendering those aspects of
    the claim procedurally barred. We agree.
    56                   MURRAY V. SCHRIRO
    show that young, poor, or rural people were a “distinctive”
    group for fair cross-section purposes. Murray, 
    906 P.2d at
    556–57. Roger has again raised a fair cross-section claim
    before us, but for good reason, makes no argument
    challenging the decision actually rendered by the Arizona
    Supreme Court. On federal habeas review, Roger now raises
    only the exclusion of Christians as the basis for his Sixth
    Amendment fair cross-section argument and Fourteenth
    Amendment equal protection argument. Although Roger
    made fair cross-section and equal protection arguments
    before the Arizona Supreme Court, he did not mention the
    exclusion of Christians as a basis for these claims. Before us,
    the claim asserting exclusion of Christians is brand new.
    We are unable to grant federal habeas relief when a
    petitioner has failed to exhaust his claim in state court. See
    
    28 U.S.C. § 2254
    (b)(1)(A). The exhaustion requirement
    affords state courts the “opportunity to pass upon and correct
    alleged violations of its prisoners’ federal rights. . . .” Picard
    v. Connor, 
    404 U.S. 270
    , 275 (1971) (citation and internal
    quotation marks omitted); see also Baldwin v. Reese,
    
    541 U.S. 27
    , 29 (2004). To satisfy the exhaustion
    requirement, a petitioner “must ‘fairly present’ his claim in
    each appropriate state court (including a state supreme court
    with powers of discretionary review . . .”), Baldwin, 
    541 U.S. at 29
     (citations omitted). The purpose of the fair presentation
    doctrine “is to prevent unnecessary conflict between courts
    equally bound to guard and protect rights secured by the
    Constitution.” Picard, 
    404 U.S. at 275
     (citation and internal
    quotation marks omitted). However, “[t]he rule would serve
    no purpose if it could be satisfied by raising one claim in the
    state courts and another in the federal courts.” 
    Id. at 276
    .
    “Only if the state courts have had the first opportunity to hear
    the claim sought to be vindicated in a federal habeas
    MURRAY V. SCHRIRO                        57
    proceeding does it make sense to speak of the exhaustion of
    state remedies. Accordingly, [the Supreme Court] ha[s]
    required a state prisoner to present the state courts with the
    same claim he urges upon the federal courts.” 
    Id.
     (citations
    omitted) (emphasis added).
    Here, Roger never provided the Arizona Supreme Court
    with the opportunity to determine whether the exclusion of
    Christians violated his Sixth or Fourteenth Amendment
    rights. Like the state court in Picard, the Arizona Supreme
    Court had no “opportunity to apply controlling legal
    principles to the facts bearing upon (his) constitutional
    claim.” 
    Id. at 277
     (citation omitted). As in Picard, we cannot
    fault the Arizona Supreme Court for “failing also to consider
    sua sponte” whether the exclusion of Christians might have
    violated Roger’s constitutional rights. 
    Id.
     Roger’s argument
    before the Arizona Supreme Court contained no mention of
    Christians being excluded from the jury pool. Thus, we
    cannot say that Roger’s current fair cross-section/equal
    protection claim predicated on the exclusion of Christians is
    the “substantial equivalent” of his claim before the state court
    targeting the exclusion of young people, poor people, and
    those from rural areas. 
    Id. at 278
    . This claim, then, is
    unexhausted and procedurally defaulted. See Ariz. R. Crim.
    P. 32.2(a); see also Poland v. Stewart, 
    169 F.3d 573
    , 578 (9th
    Cir. 1999).
    Even if this claim were not unexhausted and procedurally
    defaulted, it is without merit. See 
    28 U.S.C. § 2254
    (b)(2)
    (providing that “[a]n application for a writ of habeas corpus
    may be denied on the merits, notwithstanding the failure of
    the applicant to exhaust the remedies available in the courts
    of the State”); see also Bell v. Cone, 
    543 U.S. 447
    , 451 & n.3
    (2005) (applying § 2254(b)(2) to reach on the merits a
    58                  MURRAY V. SCHRIRO
    petitioner’s unexhausted but meritless claim). The only
    evidence in the record regarding the exclusion of Christians
    is the following colloquy:
    [Prosecutor]: And do you [jury commissioner]
    excuse anybody because they state any
    particular religious denomination?
    [Jury Commissioner]: Only one group, and I
    wish–I don’t remember.          Seventh Day
    Adventists or Jehova’s [sic] Witnesses have
    stated on their questionnaire and sent copies,
    I mean a page out of their Bible that it is
    against their religious beliefs to sit in
    judgment of anyone. And only if they request
    it.
    To establish the lack of a fair cross-section of the
    community, a defendant must demonstrate that: (1) the group
    alleged to be excluded is a distinctive one in the community;
    (2) representation of this group in the jury venires is not fair
    and reasonable in relation to the number of such persons in
    the community; and (3) this underrepresentation is due to
    systematic exclusion of the group in the jury-selection
    process. See Berghuis v. Smith, 
    130 S. Ct. 1382
    , 1392 (2010)
    (citing Duren, 
    439 U.S. at 364
    ).
    An equal protection violation arises if a jury selection
    process resulted in a substantial underrepresentation of an
    identifiable group. See Castaneda v. Partida, 
    430 U.S. 482
    ,
    494 (1977). First, there must be identification of a group that
    is recognizable, distinctive, and singled out for different
    treatment under the laws as written or applied. See 
    id.
    Second, there must be a showing that the distinctive class was
    MURRAY V. SCHRIRO                        59
    proportionately underrepresented over a significant period of
    time. See 
    id.
     Finally, there must be evidence that the juror
    selection process was susceptible to abuse or was not neutral.
    See 
    id.
     Only after this prima facie showing is made must the
    state defend its jury selection process. See 
    id.
    Roger does not identify any Supreme Court precedent that
    would require the state to interrogate the individuals who
    revealed that it was against their religious beliefs to serve on
    a jury, and would require the jurors to re-confirm their ability
    to set aside their beliefs and apply the governing law. To the
    extent Roger advances a claim of error in rejecting this
    argument, the claim is meritless.
    As for the Sixth Amendment claim, Roger has failed to
    show any systematic exclusion of a distinct group. In fact,
    Roger has not shown that any Christians were excluded.
    Moreover, the jury commissioner testified that members of
    specific religious denominations are excluded only if they
    request exclusion based on their particular religious beliefs.
    This practice does not constitute systematic exclusion.
    Likewise, Roger’s equal protection claim fails because the
    jury commissioner did not disclose that any specific religious
    denomination, or Christians, are singled out for disparate
    treatment. The evidence only supports the conclusion that
    individuals are excluded if exclusion is specifically requested
    due to religious beliefs. By no stretch of the imagination does
    this meager evidence satisfy the required showings of
    systematic exclusion and disparate treatment. Thus, even if
    Roger’s claim were not procedurally defaulted, we would
    conclude that the Arizona Supreme Court’s decision denying
    Roger’s fair cross-section/equal protection claim was not
    contrary to or an unreasonable application of Supreme Court
    precedent.
    60                  MURRAY V. SCHRIRO
    C. Claim Six - Batson Violation
    Roger contends that the state violated Batson when it
    dismissed the only two Hispanic potential jurors from the jury
    venire.
    For the reasons set forth in Robert Murray v. Schriro, No.
    08-99008, Slip. Op. pp. 27–42 (9th Cir. March 17, 2014), we
    affirm the district court’s denial of Roger’s Batson claim.
    D. Claim Seven - Denial of Request to Inspect the
    Crime Scene
    Citing United States v. Valenzuela-Bernal, 
    458 U.S. 858
    (1982), Roger argues that the trial court denied him due
    process by denying his new investigator access to the crime
    scene for inspection. Additionally, Roger asserts that the
    Supreme Court of Arizona’s ruling “is not entitled to any
    deference,” because it did not address his federal
    constitutional claims and relied only on state law. Roger’s
    arguments are unpersuasive.
    The last reasoned decision addressing the inspection due
    process claim is the decision of the Supreme Court of Arizona
    denying relief. The state court found that Roger failed to
    support the purported necessity of viewing the crime scene
    for a second time. See Murray, 
    906 P.2d at 569
    .
    The United States Supreme Court has instructed that
    evidence sought by a defendant must be material. See United
    States v. Bagley, 
    473 U.S. 667
    , 682 (1985). Merely showing
    that access to evidence was denied does not establish a
    constitutional violation. See Valenzuela-Bernal, 
    458 U.S. at 867
    . The defendant must make a plausible argument that the
    MURRAY V. SCHRIRO                        61
    evidence sought is “both material and favorable to his
    defense,” 
    id.,
     and not “merely cumulative” to other evidence.
    
    Id. at 873
     (footnote reference omitted). Evidence is material
    in the constitutional sense if there is a “reasonable likelihood”
    that it “could have affected the judgment of the trier of fact”
    if it had been made available to the defense. 
    Id. at 874
    .
    Roger’s lead counsel and his investigator inspected the
    crime scene shortly after the crime was committed and
    approximately a year prior to his trial. See Murray, 
    906 P.2d at 569
    . Co-counsel from the same public defender’s office
    and an additional investigator were subsequently assigned to
    Roger’s defense team. See 
    id.
     However, neither the new
    attorney nor the new investigator visited the crime scene prior
    to trial. See 
    id.
     During trial, defense counsel requested an
    opportunity to revisit the crime scene. See 
    id.
     The trial court
    denied the request. See 
    id.
     The Arizona Supreme Court
    affirmed the trial court’s finding that Roger failed to establish
    the need for a second inspection. See 
    id.
    The state court decision was not contrary to Valenzuela-
    Bernal. In Valenzuela-Bernal the Court explained that a
    defendant only has a right to evidence that is “relevant and
    material” to his defense. Valenzuela-Bernal, 
    458 U.S. at 867
    .
    Roger failed to show how inspection of the crime scene a
    year later, and after the scene had been cleaned, see Murray,
    
    906 P.2d at 569
    , would uncover evidence that was “relevant
    and material” to his defense. Valenzuela-Bernal, 
    458 U.S. at 867
    . The Arizona Supreme Court’s decision was not contrary
    to or an unreasonable application of Supreme Court
    precedent. See 
    id. at 874
     (holding that there was no
    constitutional violation in similar circumstances).
    62                  MURRAY V. SCHRIRO
    Roger also contends that because the Arizona Supreme
    Court did not address his federal due process claim, no
    AEDPA deference is warranted on this issue. However, as
    stated, even if the state court does not analyze a claim, we
    nevertheless review the state court decision with deference to
    the state court’s denial of relief. See Johnson, 
    133 S. Ct. at 1094
    ; see also Cunningham v. Wong, 
    704 F.3d 1143
    , 1153
    (9th Cir. 2013). In the same vein, if a state court does not
    explicitly state the reason for denying a claim, we presume
    that the state court adjudicated the claim on its merits. See
    Richter, 
    131 S. Ct. at
    784–85. Although this presumption
    “may be overcome when there is reason to think some other
    explanation for the state court’s decision is more likely,” 
    id. at 785
    , Roger does not suggest any such reason. When a state
    court determines a federal claim without discussing federal
    precedent, AEPDA deference to the state court’s decision
    remains, and it is still “the habeas petitioner’s burden” to
    show “there was no reasonable basis for the state court to
    deny relief. . . .” 
    Id. at 784
    .
    Although the Arizona Supreme Court did not explicitly
    address Roger’s federal constitutional claim, it provided
    adequate reasoning based on state law to affirm the trial
    court’s ruling denying Roger’s motion to revisit the crime
    scene. See Murray, 
    906 P.2d at 569
    . Notably, in his brief to
    the Arizona Supreme Court, Roger cited Valenzuela-Bernal,
    a case he characterized as incorporating “constitutionally
    guaranteed access to evidence.” See Johnson, 
    133 S. Ct. at 1099
     (referring to the defendant’s brief to determine that the
    federal claim was addressed). Moreover, in denying Roger’s
    claim, the Arizona Supreme Court cited Arizona Rule of
    Criminal Procedure 15.1(e), which governs the circumstances
    under which a trial court may grant additional disclosure
    requests by the defendant. See Murray, 
    906 P.2d at 569
    . As
    MURRAY V. SCHRIRO                        63
    in Johnson, it is “difficult to imagine” the Arizona Supreme
    Court “announcing an interpretation of” Rule 15.1(e) “that it
    believed to be less protective than” the Fourteenth
    Amendment, “as any such interpretation would provide no
    guidance to state trial judges bound to follow both state and
    federal law.” Johnson, 133 S. Ct. at 1098. And, as we have
    already explained, it is apparent that “neither the reasoning
    nor the result of the state-court decision contradicts” the
    Supreme Court’s rule in Valenzuela-Bernal. Early v. Packer,
    
    537 U.S. 3
    , 8 (2002). Thus, the Arizona Supreme Court
    addressed Roger’s Sixth Amendment claim when it denied
    relief on Roger’s challenge to the denial of the requested
    inspection, and its determination was not contrary to or an
    unreasonable application of clearly established federal law.
    See Johnson, 
    133 S. Ct. at 1099
    .
    E. Claim Sixteen - Omission                 of   Voluntary
    Intoxication Instruction
    Citing Dunckhurst v. Deeds, 
    859 F.2d 110
     (9th Cir. 1988),
    Roger contends that failure of the trial court to give a
    voluntary intoxication instruction, violated his due process
    right to a fair trial. Both defendants requested an intoxication
    instruction, which the trial court denied, reasoning that the
    defendants “ha[d not] made out any credible evidence on
    intoxication.”
    Roger’s reliance on Dunckhurst is misplaced. Dunckhurst
    is a pre-AEDPA case relying on our precedent developed
    during direct appeal of criminal convictions. See 
    859 F.2d at
    114 (citing United States v. Lesina, 
    833 F.2d 156
     (9th Cir.
    1987)). Once again, our circuit precedent is only relevant to
    the extent that “in accordance with [our] usual law-of-the-
    circuit procedures, . . . [we] ha[ve] already held that the
    64                       MURRAY V. SCHRIRO
    particular point in issue is clearly established by Supreme
    Court precedent . . .” Marshall, 
    133 S. Ct. at 1450
     (citations
    omitted). Dunckhurst does not purport to determine that a
    particular rule is clearly established federal law under
    Supreme Court precedent. Consequently, Dunckhurst is
    inapposite to our analysis on federal habeas review.
    The Arizona Supreme Court provided the last reasoned
    decision for this claim, affirming the trial court’s conclusion
    that Roger had failed to establish that the alcohol he allegedly
    consumed affected his “ability to think, function, or form
    intent.” Murray, 
    906 P.2d at 566
    . The Arizona Supreme
    Court explained, that under A.R.S. § 13-50311 (1992), a
    voluntary intoxication instruction “should be given only when
    the record supports such an instruction . . . .” Id. at 566–67
    (citation omitted). A mere showing of alcohol consumption
    alone is inadequate to require giving an intoxication
    instruction. See id. at 567. The defendant must also establish
    that the effect of the alcohol negated an element of the crime.
    See id. The court determined that Roger had failed to meet
    this burden. See id.
    11
    A.R.S. § 13-503 (1992) provided:
    No act committed by a person while in a state of
    voluntary intoxication is less criminal by reason of his
    having been in such condition, but when the actual
    existence of the culpable mental state of intentionally or
    with the intent to is a necessary element to constitute
    any particular species or degree of offense, the jury
    may take into consideration the fact that the accused
    was intoxicated at the time in determining the culpable
    mental state with which he committed the act.
    MURRAY V. SCHRIRO                          65
    Due process does not require the jury to be instructed
    regarding the defendant’s intoxication at the time of the
    crime. See Montana v. Egelhoff, 
    518 U.S. 37
    , 51, 56 (1996).
    But, where a state has decided that a party is entitled to an
    intoxication instruction, a failure to so instruct the jury is
    reviewed to determine if the error has “so infected the entire
    trial that the resulting conviction violates due process. . . .”
    Estelle, 
    502 U.S. at 72
     (citations omitted). As the Arizona
    Supreme Court noted in its decision on direct appeal, “[a]
    party is entitled to an instruction on any theory reasonably
    supported by evidence. An intoxication instruction should be
    given only when the record supports such an instruction.”
    State v. LaGrand, 
    733 P.2d 1066
    , 1070 (Ariz. 1987) (citations
    omitted); see also Murray, 
    906 P.2d at
    566–67. Roger faces
    a particularly heavy burden in seeking to establish a due
    process violation because a jury instruction was omitted
    rather than erroneously given. “An omission, or an
    incomplete instruction, is less likely to be prejudicial than a
    misstatement of the law. . . .” Henderson v. Kibbe, 
    431 U.S. 145
    , 155 (1977).
    As the Arizona Supreme Court noted, Roger did present
    evidence that he had been drinking on the night of the crime.
    See 
    906 P.2d at 566
    . Roger’s counsel stated that “[t]he jury,
    from the evidence before it, could perhaps determine that the
    defendants over the period of time they had been drinking,
    did become intoxicated. . . .” The prosecutor responded that
    “the State doesn’t believe there’s any evidence of
    intoxication. The only direct testimony on that was a person
    at the bar . . . that said they did not appear to be intoxicated or
    under the influence. . . .” Based on this evidence, the trial
    court–and the Arizona Supreme Court–found that:
    66                   MURRAY V. SCHRIRO
    [Murray had not] made out any credible
    evidence on intoxication. The fact that the
    defendants were drinking isn’t–there’s no
    testimony as to what effect that had on their
    ability to think or their abilities to function or
    to form the intent involved, and I will not give
    an instruction on intoxication.
    Roger has only argued that the trial court did not consider
    certain facts in making its determination that he had failed to
    show that he was intoxicated. Raw speculation aside, Roger
    presents no evidence that tends to call into question the trial
    court’s factual determination that Roger had not proven that
    his drinking on the night of the crime–the only evidence that
    could be established–had a substantial effect on him such that
    he lacked the requisite intent. Based on our review of the
    record, we agree that the evidence did not support Roger’s
    voluntary intoxication defense. Therefore, the Arizona
    Supreme Court’s denial of Roger’s claim that the trial court’s
    omission of the intoxication instruction constituted a due
    process violation was not contrary to or an unreasonable
    application of federal law as established by the Supreme
    Court. See Estelle, 
    502 U.S. at 72
    ; see also Mathews v.
    United States, 
    485 U.S. 58
    , 63 (1988) (explaining that a
    defendant is only entitled to an instruction on a defense
    theory supported by the evidence).
    F. Claim Seventeen - Denial of a Lesser Included
    Offense Instruction
    Roger argues that the trial court denied him due process
    when it denied the defendants’ request to instruct the jury on
    second degree murder as a lesser included offense. Relatedly,
    Roger also asserts that the trial court’s decision contravened
    MURRAY V. SCHRIRO                           67
    Enmund v. Florida, 
    458 U.S. 782
     (1982) and Tison v.
    Arizona, 
    481 U.S. 137
     (1987), by imposing the death penalty
    when Roger did not intend to take a life or intend that lethal
    force be used.
    The last reasoned decision addressing this issue is the
    Arizona Supreme Court’s denial of relief, explaining that a
    lesser included offense instruction is warranted only if
    supported by the evidence. See Murray, 
    906 P.2d at 567
    .
    The court reasoned that an instruction on second degree
    murder would only apply to premeditated murder, but not to
    felony murder, which was the crime of conviction. See 
    id.
     In
    addition, the crime of second degree murder is characterized
    by evidence of lack of premeditation and deliberation. See 
    id.
    The Arizona Supreme Court adopted the trial court’s
    determination—considering that the victims were forced to
    lie on the carpet and were shot in the back of the head with
    different weapons, the only rational inference was that the
    murders were deliberate and premeditated, thereby precluding
    a verdict of second degree murder.12 See 
    id.
    12
    A.R.S. § 1104 (1992) provided in pertinent part:
    A. A person commits second degree murder if without
    premeditation:
    1. Such person intentionally causes the death of another
    person; or
    2. Knowing that his conduct will cause death or serious
    physical injury, such person causes the death of another
    person; or
    3. Under circumstances manifesting extreme
    indifference to human life, such person recklessly
    engages in conduct which creates a grave risk of death
    68                    MURRAY V. SCHRIRO
    “[D]ue process requires that a lesser included offense
    instruction be given only when the evidence warrants such an
    instruction. . . .” Hopper v. Evans, 
    456 U.S. 605
    , 611 (1982)
    (citing Beck v. Alabama, 
    447 U.S. 625
     (1980)).
    The element the Court in Beck found
    essential to a fair trial was not simply a lesser
    included offense instruction in the abstract,
    but the enhanced rationality and reliability the
    existence of the instruction introduced into the
    jury’s deliberations. Where no lesser included
    offense exists, a lesser included offense
    instruction detracts from, rather than
    enhances, the rationality of the process. Beck
    does not require that result. Spaziano v.
    Florida, 
    468 U.S. 447
    , 455 (1984).
    In Arizona, “[t]o determine whether there is sufficient
    evidence to require the giving of a lesser included offense
    instruction, the test is whether the jury could rationally fail to
    find the distinguished element of the greater offense. . . .”
    State v. Krone, 
    897 P.2d 621
    , 625 (Ariz. 1995) (in banc)
    (quoting State v. Detrick, 
    873 P.2d 1302
    , 1305 (Ariz. 1994)
    (internal quotation marks omitted)). The Arizona rule
    comports with the federal rule and therefore does not offend
    constitutional standards. See Hopper, 
    456 U.S. at 612
     (“The
    federal rule is that a lesser included offense instruction should
    be given if the evidence would permit a jury rationally to find
    a defendant guilty of the lesser offense and acquit him of the
    greater.”) (citation, alteration, and internal quotation marks
    omitted). Thus, the Arizona Supreme Court’s reliance on this
    and thereby causes the death of another person.
    MURRAY V. SCHRIRO                              69
    rule was not contrary to or an unreasonable application of
    clearly established federal law.13
    Moreover, at trial, the judge directly asked what evidence
    supported an instruction that the offense could have been
    something other than first-degree murder. Roger’s counsel
    could not point to any actual evidence suggesting anything
    other than premeditation. Rather, counsel responded that “we
    cannot look into the jury’s mind and determine whether or not
    they are going to find premeditation or not. . . .” In turn, the
    prosecutor stated:
    Here what we have are repeated gunshots
    on a helpless couple laying on the floor.
    Somebody is guilty of premeditated murder.
    The defendants can argue it’s not them
    certainly, but the way the victims died can
    only be premeditated. There’s no way that
    you can look at that set of facts and say that is
    not premeditated, looking at the analysis
    under Lamb.
    Based on the record, the trial court ruled:
    Well, if based on the physical evidence, I
    don’t see how it can be anything other than
    first degree murder. It may not be the
    13
    Roger also argues that “[i]f the jury had been given the intoxication
    instruction and they had found [his] intoxication negated the specific
    intent necessary for a conviction of first degree premeditated murder, then
    the jury could have found [him] guilty of second degree murder. . . .” As
    we stated above, the record did not support an intoxication instruction, so
    this argument is unavailing; the evidence also did not warrant a second-
    degree murder instruction based on intoxication.
    70                  MURRAY V. SCHRIRO
    defendants, that’s for the jury to decide. The
    whole defense is based on other things other
    than the actual death of the victims. It’s either
    first degree murder or it’s nothing. And in
    essence, I agree with the State. So, I will not
    give second degree murder as a lesser.
    The Arizona Supreme Court agreed: “Defendants had the
    victims lie on the carpet of their living room and proceeded
    to shoot each of them with different weapons in the back of
    the head. The only inference that a jury rationally could have
    drawn was that defendants premeditated.” Murray, 
    906 P.2d at 567
     (citation omitted).
    Roger argues that the Arizona Supreme Court’s decision
    is contrary to Enmund and Tison. In Enmund, the defendant
    participated in a robbery that ultimately resulted in murder,
    although the defendant did not murder anyone or intend for
    anyone to be killed. See 458 U.S. at 798. The United States
    Supreme Court noted that “the Florida Supreme Court held
    that the record supported no more than the inference that
    Enmund was the person in the car by the side of the road at
    the time of the killings, waiting to help the robbers
    escape. . . .” Id. at 788. There was no evidence in Enmund
    that the defendant actively participated in the murders or was
    present when the victims were murdered. See id. Based
    solely on those facts, the Supreme Court held that the
    imposition of a death sentence upon a defendant who did not
    kill or intend to kill the victims violated the Eighth
    Amendment. See id. at 801. But on the other hand, as the
    Supreme Court clarified several years later, “major
    participation in the felony committed, combined with reckless
    indifference to human life, is sufficient to satisfy the Enmund
    culpability requirement” for when the death penalty may be
    MURRAY V. SCHRIRO                      71
    imposed. Tison, 
    481 U.S. at
    151–52, 158 (so holding where
    two brothers brought “an arsenal of lethal weapons” into an
    Arizona prison with the intent to arm convicted murderers
    and help them escape, “participated fully in the kidnapping
    and robbery and watched the killing”).
    Unlike the facts in Enmund, and similar to those in Tison,
    the Arizona Supreme Court found that the physical evidence
    substantiated Roger’s involvement as an active participant.
    See Murray, 
    906 P.2d at 567
    . When apprehended, Roger had
    blood on his clothes which was not his, but which could have
    come from either victim. See 
    id. at 555
    . Roger also
    discarded a loaded .25 caliber gun immediately prior to his
    arrest, which was consistent with the fired .25 caliber shell
    found at the crime scene. Roger’s footprints were left at the
    crime scene, see 
    id. at 554
    , and the brothers possessed items
    stolen from Grasshopper Junction, including rolled coins
    stamped with the name and location of the store, and a
    cushion cover from the couch that contained blood and tissue
    from Applehans. See 
    id. at 554-55
    . This and additional
    evidence tending to show that Roger intended to take life, or
    intended that lethal force be used, support much more than a
    mere inference that Roger was just a person in a car waiting
    to help the actual robbers escape. Therefore, the Arizona
    Supreme Court’s ruling that this record did not warrant a
    lesser included offense instruction was not contrary to or an
    unreasonable application of Supreme Court precedent.
    G. Claim Twenty-Six - Failure to Appropriately
    Consider Mitigating Evidence
    Roger argues that the trial court erroneously determined
    that his dysfunctional childhood could not be considered as
    an independent mitigation factor. Specifically, Roger asserts
    72                 MURRAY V. SCHRIRO
    that the state court misapplied Eddings v. Oklahoma,
    
    455 U.S. 104
    , 115 (1982), and its progeny by requiring a
    nexus between the mitigation evidence and commission of the
    crimes. Stated differently, Roger contends that the Arizona
    court required Roger to demonstrate that the childhood
    experiences offered in mitigation contributed to his
    commission of the crimes.
    The state counters that Roger did not raise this issue
    before the state court, and as a result, it is procedurally
    barred. However, Roger raised this issue in his direct appeal
    when he argued that the trial court failed to objectively
    consider his mitigation evidence. The Arizona Supreme
    Court rejected Roger’s claim, finding that the sentencing
    court reviewed all of the mitigating evidence, but deemed it
    insufficient to outweigh the aggravating factors. See Murray,
    
    906 P.2d at
    578–79. Roger now renews his argument that the
    Arizona Supreme Court unconstitutionally applied the causal
    nexus test. Roger relies on the portion of the Arizona
    Supreme Court’s decision addressing the trial court’s finding
    that Roger’s childhood was dysfunctional, and concluding
    that “he fail[ed] to show how this background impacted his
    behavior at Grasshopper Junction.” Murray, 
    906 P.2d at 577
    .
    Citing Styers v. Schriro, 
    547 F.3d 1026
     (9th Cir. 2008),
    Roger contends that the Arizona Supreme Court’s analysis of
    the trial court’s weighing is contrary to United States
    Supreme Court authority from Smith v. Texas, 
    543 U.S. 37
    (2004), and related cases.
    Under clearly established Supreme Court authority, a state
    court may not treat mitigating evidence of a defendant’s
    character or background “as irrelevant or nonmitigating as a
    matter of law” simply because it does not have a causal
    MURRAY V. SCHRIRO                        73
    connection to the crime. Towery v. Ryan, 
    673 F.3d 933
    , 946
    (9th Cir. 2012) (per curiam); see also Penry v. Lynaugh,
    
    492 U.S. 302
    , 318 (1989) (citing Eddings, 
    455 U.S. at
    114
    and holding that a state cannot, “consistent with the Eighth
    and Fourteenth Amendments, prevent the sentencer from
    considering and giving effect to evidence relevant to the
    defendant’s background or character or to the circumstances
    of the offense that mitigate against imposing the death
    penalty”), abrogated on other grounds by Atkins v. Virginia,
    
    536 U.S. 304
     (2002). On the other hand, the sentencer may
    consider “causal nexus . . . as a factor in determining the
    weight or significance of mitigating evidence. . . .” Lopez v.
    Ryan, 
    630 F.3d 1198
    , 1204 (9th Cir. 2011) (citing Eddings,
    
    455 U.S. at
    114–15) (footnote reference omitted).
    In determining whether the state court used a causal nexus
    analysis as an impermissible screening mechanism or as a
    permissible weighing tool, we must presume the latter
    “[a]bsent a clear indication in the record” that the state court
    “violated Eddings’s constitutional mandates.” Schad v. Ryan,
    
    671 F.3d 708
    , 724 (9th Cir. 2011), as amended (citing Bell,
    
    543 U.S. at 455
    ); see also Poyson v. Ryan, No. 10-99005,
    __F.3d__, 
    2013 WL 5943403
    , at *11 (9th Cir. Nov. 7, 2013),
    as amended (denying relief on a causal nexus claim when
    ambiguity existed regarding “whether the [state] court
    considered the absence of a causal nexus as a permissible
    weighing mechanism . . ., or as an unconstitutional screening
    mechanism”). This presumption applies not only when we
    are drawing inferences from a state court’s silence, but also
    when we are interpreting a state court’s ambiguous statement.
    See Woodford v. Viscotti, 
    537 U.S. 19
    , 22–24 (2002). The
    cases Murray relies on, Smith and Styers, are consistent with
    these principles. The Supreme Court in Smith rejected the
    causal nexus requirement between a petitioner’s mitigation
    74                  MURRAY V. SCHRIRO
    factors and the crime. See Smith, 
    543 U.S. at 45
     (focusing on
    whether the factfinder “consider[ed] and g[a]ve effect to a
    defendant’s mitigation evidence in imposing sentence”)
    (citations, alterations and internal quotation marks omitted).
    In Styers, we similarly held that the state court’s application
    of the causal nexus test to mitigating evidence was “contrary
    to the constitutional requirement that all relevant mitigating
    evidence be considered by the sentencing body. . . .” Styers,
    
    547 F.3d at
    1035 (citing Smith, 
    543 U.S. at 45
    ).
    After closely reviewing the record, the Arizona Supreme
    Court found that the trial court considered all of the
    mitigating evidence and explained in painstaking detail in
    special verdicts why the mitigating evidence did not outweigh
    the aggravating factors. See Murray, 
    906 P.2d at
    571–79
    (discussing the mitigation evidence). Roger’s claim that the
    trial court failed to properly weigh his mitigating evidence is
    not supported by the record. See 
    id.
     The Arizona Supreme
    Court, in reviewing the trial court’s weighing of mitigating
    and aggravating factors, discussed in detail Roger’s claim that
    he was a troubled youth, citing information regarding his
    confinement in a juvenile detention center. See 
    id. at 574
    .
    The court acknowledged that a counselor at the detention
    center identified Roger’s need of help to manage his anger
    and emotional issues. See 
    id.
     The court noted that a
    sociologist testified during his sentencing hearing that
    Roger’s problems as a youth stemmed from neglect at home
    and by government officials. See 
    id.
     However, the court also
    discussed that the sociologist testified that Roger knew killing
    was wrong. See 
    id.
     Additionally, the court noted that Roger
    suffered from head injuries and was diagnosed with attention
    deficit/hyperactivity disorder. See 
    id.
     at 574–75. Further, the
    court discussed Roger’s use of alcohol and illicit drugs. See
    
    id.
     at 575–76. Nevertheless, the court concluded that
    MURRAY V. SCHRIRO                        75
    although his dysfunctional childhood, head injuries,
    hyperactivity, and alcohol/drug use were mitigating factors,
    these factors had negligible mitigating force because Roger
    did not show how they affected his behavior on the night of
    the murders. See 
    id. at 577
    .
    Taken in the full context of the Arizona Supreme Court’s
    exhaustive analysis, there is no “clear indication in the
    record,” Schad, 
    671 F.3d at 724
    , that its statement that Roger
    “fail[ed] to show how this [family] background impacted his
    behavior at Grasshopper Junction,” Murray, 
    906 P.2d at 577
    ,
    amounted to an impermissible screening mechanism under
    Eddings.” See Lopez, 
    630 F.3d at 1204
     (emphasizing that
    “we must look to what the record actually says” and that
    where “the state court made clear that it considered all the
    mitigating evidence and found it wanting,” we cannot “infer
    unconstitutional reasoning”).
    Even if we assume the Arizona Supreme Court did
    commit causal nexus error with respect to Roger’s troubled
    childhood, the error was harmless and we would still deny his
    claim for relief. See Stokley v. Ryan, 
    705 F.3d 401
    , 404 (9th
    Cir. 2012) (quoting Brecht v. Abrahamson, 
    507 U.S. 619
    , 623
    (1993)) (explaining that a non-structural error requires
    reversal only if it “had substantial and injurious effect or
    influence in determining the . . . verdict”). Under Stokley,
    where the appellate court reviews all of the mitigating and
    aggravating factors individually, and confirms the trial
    court’s determination that there are no grounds substantial
    enough to warrant leniency, the appellate court’s Eddings
    error with respect to a relatively minor mitigating factor does
    not create a “reasonable likelihood that, but for a failure to
    fully consider [that factor], the [state] courts would have
    come to a different conclusion. . . .” 705 F.3d at 405 (citation
    76                  MURRAY V. SCHRIRO
    omitted). Thus, in Stokley we concluded that the Arizona
    Supreme Court’s Eddings error, if any, with respect to family
    history or good behavior while imprisoned, was harmless.
    See id. Here, as in Stokley, after “review[ing] and
    discuss[ing] each of the aggravating and mitigating factors
    individually,” id. at 404, the Arizona Supreme Court agreed
    with the trial court that Roger’s mitigation evidence was
    minimal “at best” and that there was certainly “no mitigating
    evidence sufficiently substantial to call for leniency. . . .”
    Murray, 
    906 P.2d at 579
    . Therefore, any Eddings error with
    respect to the effect of Roger’s troubled childhood does not
    raise a reasonable likelihood that fuller consideration of that
    relatively minor factor would have led the Arizona courts to
    reach a different conclusion. In other words, Roger “cannot
    demonstrate actual prejudice because he has not shown that
    the error, if any, had a substantial and injurious impact on the
    verdict. . . .” Stokley, 705 F.3d at 404.
    In sum, the Arizona Supreme Court’s decision was not
    contrary to or an unreasonable application of Supreme Court
    precedent, because the record reflects that the sentencing
    court, as the factfinder, employed the causal nexus test as a
    permissible means of weighing the entirety of Murray’s
    mitigation evidence prior to imposing his sentence. See Bell,
    
    543 U.S. at 455
    . Even if there were a causal nexus error
    under Eddings, Roger cannot establish prejudice and we must
    deny his claim for relief in any event. See Stokley, 705 F.3d
    at 404 (citing Brecht, 
    507 U.S. at 623
    ).
    H. Claim Forty-Four - Denial of Request to Replace
    Counsel Due to Irreconcilable Conflict
    Roger asserts that his Sixth Amendment right to counsel
    was violated because of an irreconcilable conflict with his
    MURRAY V. SCHRIRO                        77
    counsel. Roger argues that his claim is not procedurally
    barred, because he raised the issue to the Arizona Supreme
    Court and in his PCR petition. The state counters that this
    issue is procedurally barred as determined in the PCR court’s
    decision dated January 10, 2000. We need not resolve this
    procedural point, because to the extent Roger argues that his
    claim may be resurrected under Martinez, habeas relief is not
    warranted. Roger might be entitled to a remand under
    Martinez if he could establish that his PCR counsel was
    ineffective for failing to raise the irreconcilable conflict
    asserted by Roger, and that the underlying IAC claim is
    “substantial.” Sexton v. Cozner, 
    679 F.3d 1150
    , 1157 (9th
    Cir. 2012), as amended. We examine the record to determine
    whether Roger has made the required showing of
    ineffectiveness of PCR counsel. See 
    id.
     To do so, Roger
    must establish that his trial counsel’s performance was
    deficient and that he was prejudiced as a result. See id.; see
    also Strickland, 
    466 U.S. at 687
     (articulating standard for
    ineffective assistance of counsel claim). To demonstrate that
    the performance by PCR counsel was deficient, Roger
    must show that counsel’s failure to raise the underlying IAC
    claim did not “fall[ ] within the wide range of reasonable
    professional assistance” and “overcome the presumption that,
    under the circumstances, the challenged action might be
    considered sound trial strategy. . . .” Strickland, 
    466 U.S. at 689
     (citation and internal quotation marks omitted).
    Prejudice is shown by evidence of a “reasonable probability
    that, but for counsel’s unprofessional errors, the result of the
    proceeding would have been different. A reasonable
    probability is a probability sufficient to undermine confidence
    in the outcome.” 
    Id. at 694
    . Here, Roger would have to
    establish that the outcome of his PCR proceedings would
    have been different.
    78                  MURRAY V. SCHRIRO
    If there is a failure of proof on either prong, habeas relief
    is not warranted. See Gentry v. Sinclair, 
    705 F.3d 884
    , 899
    (9th Cir. 2013), as amended. A defendant’s disagreement
    with trial counsel’s strategy does not constitute deficient
    performance on the part of trial counsel. See Strickland,
    
    466 U.S. at
    689–91; see also Raley v. Ylst, 
    470 F.3d 792
    , 799
    (9th Cir. 2006).           Additionally, to demonstrate an
    irreconcilable conflict, Roger must establish that there was a
    complete breakdown of communication that substantially
    interfered with the attorney-client relationship. See United
    States v. Mendez–Sanchez, 
    563 F.3d 935
    , 943 (9th Cir. 2009).
    At the hearing held in response to Roger’s request to
    terminate his attorneys, Roger confirmed his wish to end his
    relationship with his attorneys due to a conflict of interest.
    Roger’s trial counsel explained to the court that there was an
    irreconcilable difference of opinion regarding the strategy for
    the penalty phase proceedings. The trial court ultimately
    granted Roger’s motion to represent himself and allowed an
    attorney from the public defender’s office to remain as
    advisory counsel. One week later, Roger filed a motion
    requesting appointed counsel. Counsel from the public
    defender’s office informed the trial court that an ethical
    conflict remained due to the office’s representation of Roger
    and another client with an adverse interest who was to testify
    in response to a prospective witness for Robert’s case.
    Counsel also reminded the court about the conflict between
    counsel and Roger regarding strategy for the penalty phase.
    Counsel suggested to the court that another attorney represent
    Roger. The court reviewed the suggestion and reappointed
    counsel from the public defender’s office, with Roger
    agreeing. The conflict presented to the trial court by Roger
    concerned strategy for the penalty phase. This issue
    implicates attorney strategy rather than irreconcilable
    MURRAY V. SCHRIRO                               79
    conflict. Thus, Roger failed to establish that his claim of
    irreconcilable conflict was of sufficient merit to substantiate
    a claim of ineffective assistance of counsel.14 See Sexton,
    679 F.3d at 1156–57 (explaining that a defendant cannot
    establish that counsel’s performance fell below an objective
    standard of reasonableness when the only disagreement
    concerned strategy); cf. Daniels v. Woodford, 
    428 F.3d 1181
    ,
    1199–1200 (9th Cir. 2005) (recognizing an irreconcilable
    conflict where there was a complete lack of communication
    between attorney and client).
    Roger failed to establish that the conflict between his
    counsel and him was indeed irreconcilable. See Mendez-
    Sanchez, 
    563 F.3d at 943
     (noting that defendant’s relationship
    with counsel did not rise to the level of irreconcilable conflict
    when the conflict was generated from defendant’s general
    unreasonableness).         Therefore, the PCR counsel’s
    performance was not deficient. Because Roger did not
    establish that his conflict with counsel was irreconcilable, his
    ineffective assistance of counsel claim lacks sufficient merit
    to warrant a Martinez remand.15 See Sexton, 679 F.3d at
    14
    The Arizona Supreme Court interpreted this issue as a request for
    hybrid representation and ruled that the trial court did not abuse its
    discretion when it denied Roger’s request. See Murray, 
    906 P.2d at
    560–61. Although its conclusion was couched in the context of hybrid
    representation, the Arizona Supreme Court addressed Roger’s assertion of
    irreconcilable differences and affirmed the trial court’s reappointment of
    counsel from the public defender’s office. See 
    id.
    15
    In the alternative, Roger contends that the district court erred in not
    addressing his motion to amend his petition to include this claim. Roger
    relies on the Second Circuit’s decision in Littlejohn v. Artuz, 
    271 F.3d 360
    (2d Cir. 2001). However, Littlejohn is not binding precedent in this
    circuit. More importantly, any failure to address Roger’s request for leave
    to amend was harmless in view of the lack of merit to his claim. See
    80                     MURRAY V. SCHRIRO
    1156–57 (noting that an IAC claim must be substantial to
    warrant a Martinez remand and that disagreement regarding
    strategy does not constitute ineffectiveness of counsel); but
    see Detrich v. Ryan, 
    740 F.3d 1237
    , 1248 (9th Cir. 2013) (W.
    Fletcher, J., plurality) (explaining that in most cases,
    Martinez motions should be remanded to the district court for
    a decision in the first instance).
    I. Claim Forty-Five - Ineffective Assistance of Trial
    Counsel Due to Counsel’s Inattentiveness
    Roger contends that he was denied the effective assistance
    of counsel, because his counsel slept during substantial
    portions of his trial. Roger further asserts that his evidentiary
    hearing regarding this issue violated due process, because the
    judge presiding at his trial was also the presiding judge at his
    PCR hearing.
    The Sixth Amendment guarantees the accused the “right
    to the effective assistance of counsel.” United States v.
    Cronic, 
    466 U.S. 648
    , 655–56 (1984). The Supreme Court
    “has concluded that the assistance of counsel is among those
    ‘constitutional rights so basic to a fair trial that their
    infraction can never be treated as harmless error.’” Holloway
    v. Arkansas, 
    435 U.S. 475
    , 489 (1978) (citing Chapman v.
    California, 
    386 U.S. 18
    , 23 (1967)). Moreover, “when a
    defendant is deprived of the presence and assistance of his
    attorney, either throughout the prosecution or during a critical
    stage in, at least, the prosecution of a capital offense, reversal
    is automatic.” 
    Id.
     (citations omitted). We have held that
    when counsel sleeps through a substantial portion of a trial,
    Bonin v. Calderon, 
    59 F.3d 815
    , 845 (9th Cir. 1995) (noting that denial of
    leave to amend is appropriate if amendment would be futile).
    MURRAY V. SCHRIRO                         81
    his client has been deprived of effective legal assistance,
    resulting in inherent prejudice. See Javor v. United States,
    
    724 F.2d 831
    , 833–34 (9th Cir. 1984). Roger relies solely on
    our decision in Javor to support his claim. Nevertheless,
    Roger’s reliance on Javor is misplaced. Javor is a pre-
    AEDPA case that was crafting a rule from existing Supreme
    Court precedent. See 
    id.
     We reiterate that our circuit
    precedent is only relevant to the extent that, “in accordance
    with [our] usual law-of-the circuit procedures, . . . [we] ha[ve]
    already held that the particular point in issue is clearly
    established by Supreme Court precedent . . . .” Marshall,
    
    133 S. Ct. at 1450
     (citations omitted). As such, Javor is
    inapposite to our analysis on federal habeas review.
    The last reasoned state court decision addressing this
    claim was the PCR court’s order dated March 21, 2002.
    After a two-day hearing including witness testimony, the
    PCR court concluded that Roger’s counsel did not actually
    sleep during the trial. Robert’s trial counsel testified that
    Roger’s trial counsel had a reputation for “dozing off” in
    court. She stated that she personally observed Roger’s
    counsel “in a posture that look[ed] like he’s asleep.”
    However, she admitted that she was not sure at times whether
    he was dozing or just listening with his eyes closed. Robert’s
    counsel did not contemporaneously inform the trial court of
    her observations.
    A former juror testified that she vaguely remembered
    Roger’s lawyer nodding off during the trial. During cross-
    examination, she conceded that Roger’s counsel did not close
    his eyes for long periods of time, and that she would have
    informed a bailiff if Roger’s counsel had been asleep for
    significant portions of the trial.
    82                  MURRAY V. SCHRIRO
    Roger’s appellate counsel testified that Roger specifically
    told her that his trial counsel appeared to doze during trial.
    She also mentioned that she did not raise the issue of Roger’s
    trial counsel sleeping, because it was not part of the record on
    direct appeal.
    Roger’s trial counsel testified that he remembered Roger
    complaining about him sleeping during jail visits, but not
    during trial. He did not remember sleeping during the trial.
    The PCR court directly questioned Roger’s trial counsel,
    asking explicitly whether he slept during the trial. In reply,
    Roger’s counsel stated: “Your Honor, quite frankly, I can’t
    say. I wouldn’t be the one to really know that. I don’t think
    I did, but there is a possibility I did. But it would have been
    basically just a few seconds more than anything else. A cat
    nap type thing.” He did not admit to sleeping. The PCR
    court then recalled on the record that Roger’s trial counsel
    appeared generally to be “fired up” during the cases he had
    tried before the judge. Trial counsel agreed that he indeed
    was typically “fired up” for his cases and that he had “tried to
    give [Roger’s trial] more because of the importance of it.”
    Roger testified that he observed his trial counsel asleep
    first at the jail and then almost daily during trial. During the
    testimony of Detective Lent, the footprint expert, Roger
    observed his trial counsel asleep for four to five minutes.
    Roger also observed his trial counsel sleeping during the
    medical examiner’s testimony. Roger remembered his trial
    counsel sleeping through other witnesses as well. Roger
    recalled that he informed his other trial counsel and his
    appellate counsel about his observations. Roger did not
    inform the trial court about his observations.
    MURRAY V. SCHRIRO                        83
    During cross-examination, the state reviewed the trial
    transcript with Roger, specifically emphasizing witness
    testimony where Roger had testified that his counsel was
    asleep. The state consistently established that Roger’s trial
    counsel was engaged during the witness testimony that Roger
    previously associated with his counsel’s sleeping. Roger
    admitted during cross-examination that he did not specify in
    his affidavit precisely when his trial counsel was sleeping.
    The prosecutor testified that Roger’s trial counsel
    appeared engaged and active during trial. The prosecutor
    observed Roger’s trial counsel listening with his eyes closed.
    According to the prosecutor, Roger’s trial counsel had a habit
    of closing his eyes when he was thinking, and he would nod
    occasionally, but when a response was required he would
    seamlessly open his eyes and respond appropriately,
    appearing to be completely engaged.
    Neither the bailiff nor the investigator remembered
    Roger’s trial counsel sleeping during the trial. The same was
    true for co-counsel. Co-counsel did not observe Roger
    kicking his trial counsel or trial counsel falling asleep during
    trial. Neither did co-counsel recall Roger speaking to him
    about trial counsel falling asleep during trial.
    After oral argument and after reviewing briefs from both
    counsel, the PCR court entered a minute order denying relief.
    The PCR court acknowledged that Robert’s trial counsel and
    a former juror testified to observing Roger’s trial counsel
    sleeping during portions of the trial. However, the PCR court
    noted that other witnesses and the trial transcript undermined
    this testimony. The PCR court found that the trial transcript
    reflected that Roger’s trial counsel was “actively engaged in
    the trial.” The PCR court credited the testimony of trial
    84                  MURRAY V. SCHRIRO
    counsel that he did not recall sleeping during the trial. In
    addition, the PCR court found the testimony of the
    prosecutor, the investigator, and the bailiff more credible.
    Each of these three witnesses denied ever seeing Roger’s trial
    counsel asleep during the trial. The PCR court was also
    persuaded by co-counsel’s testimony that Roger never
    complained to co-counsel about trial counsel sleeping.
    We cannot conclude that the PCR court’s rejection of
    Roger’s claim was based on an unreasonable determination
    of the facts. See 
    28 U.S.C. § 2254
    (d)(2). Indeed, the record
    of the trial proceedings confirms the reasonableness of the
    PCR court’s finding that Roger’s counsel was not asleep
    during the trial. Most telling was the state’s demonstration
    from the transcripts that counsel was actively questioning
    witnesses and objecting to testimony at times when Roger
    accused counsel of being asleep. See Hibbler v. Benedetti,
    
    693 F.3d 1140
    , 1148–50 (9th Cir. 2012) (concluding, after
    reviewing the evidence presented in state court, that the state
    court’s determination was not unreasonable). Because
    Roger’s Strickland claim hinges on the fact that his counsel
    slept through substantial portions of trial, which the record
    does not support, we conclude that the state court did not
    unreasonably apply clearly established Supreme Court
    precedent. We affirm the district court’s denial of relief on
    this claim.
    The Arizona Supreme Court’s rejection of Roger’s claim
    that he was denied a full and fair hearing also was not
    contrary to, or an unreasonable application of clearly
    established Supreme Court precedent. We have stated that
    “[i]t has long been regarded as normal and proper for a judge
    to sit in the same case upon its remand, and to sit in
    successive trials involving the same defendant. . . .”
    MURRAY V. SCHRIRO                         85
    Gerlaugh v. Stewart, 
    129 F.3d 1027
    , 1036 (9th Cir. 1997)
    (quoting Liteky v. United States, 
    510 U.S. 540
    , 551 (1994)).
    There must be more than “the false assumption that trial
    judges are not capable of doing what the law requires” to
    justify the requirement that a different judge hear subsequent
    proceedings. 
    Id.
     The Supreme Court has also recognized that
    “knowledge (and the resulting attitudes) that a judge properly
    acquired in an earlier proceeding [is] not . . .
    ‘extrajudicial’. . . . [T]rial rulings have a judicial expression
    rather than a judicial source. They may well be based upon
    extrajudicial knowledge or motives. . . .” Liteky, 
    510 U.S. at 545
     (citations omitted) (emphases in the original).
    The judge who presides at a trial may, upon
    completion of the evidence, be exceedingly ill
    disposed towards the defendant, who has been
    shown to be a thoroughly reprehensible
    person. But the judge is not thereby recusable
    for bias or prejudice, since his knowledge and
    the opinion it produced were properly and
    necessarily acquired in the course of the
    proceedings, and are indeed sometimes (as in
    a bench trial) necessary to completion of the
    judge’s task. As Judge Jerome Frank pithily
    put it:     “Impartiality is not gullibility.
    Disinterestedness does not mean child-like
    innocence. If the judge did not form
    judgments of the actors in those court-house
    dramas called trials, he could never render
    decisions.” Also not subject to deprecatory
    characterization as “bias” or “prejudice” are
    opinions held by judges as a result of what
    they learned in earlier proceedings. It has
    long been regarded as normal and proper for
    86                  MURRAY V. SCHRIRO
    a judge to sit in the same case upon its
    remand, and to sit in successive trials
    involving the same defendant.
    
    Id.
     at 550–51 (citations omitted).
    Roger has not identified any Supreme Court case holding
    that a defendant is deprived of due process when the trial
    judge presides over post-conviction proceedings. Rather, the
    opposite is true. See id.; see also Cook v. Ryan, 
    688 F.3d 598
    , 612 (9th Cir. 2012) (noting that the trial judge was
    “ideally situated” to make an assessment of the facts when
    resolving post-conviction issues) (quoting Schriro v.
    Landrigan, 
    550 U.S. 465
    , 476 (2007)). The distinction is
    plain. As a fact witness, the judge would be seeking to
    persuade the finder of fact to a certain view of the evidence.
    As the presiding jurist, the judge is the factfinder, with
    absolutely no incentive to shade the facts one way or the
    other. See, e.g., Fed. R. Evid. 605 (providing that the
    presiding judge may not testify as a witness in the trial over
    which he presides); see also United States v. Berber-Tinoco,
    
    510 F.3d 1083
    , 1091 (9th Cir. 2007) (holding that a trial court
    judge is not a competent witness to factual matters in a case
    over which he presides). No similar conundrum exists when
    the trial judge presides over post-conviction proceedings. In
    the post-conviction proceedings, the judge functions as a
    reviewer of the trial proceedings rather than as a chronicler of
    the facts. As the Supreme Court has explained, the trial
    judge’s unique knowledge of the trial court proceedings
    renders him “ideally situated” to review the trial court
    proceedings. Landrigan, 
    550 U.S. at 476
    . Roger’s due
    process rights were honored in full. Serving as an adjudicator
    rather than as a witness, the PCR court determined that
    Roger’s claim lacked merit.
    MURRAY V. SCHRIRO                        87
    In this case, the only evidence that Roger puts forward is
    that the judge stated: “I guess I have to tell you I remember
    some things about this trial very well . . . and I–I never saw
    [Roger’s trial counsel] asleep.” Roger relies upon this
    statement to demonstrate that the trial judge “was a key and
    biased witness who did not testify but ruled on the motions
    while his own observations were not subject to cross-
    examination.” It is important to consider the trial judge’s full
    comments:
    Well, I guess–I guess I have to tell you I
    remember some things about this trial very
    well. And one was that [Roger’s trial
    counsel] was very aggressive, very emphatic
    and–but of course you know–and I–I never
    saw him asleep. But, you know, I guess I’ll
    let you have an opportunity to show me that
    he was sleeping during substantial portions of
    the trial because we have the Affidavits that
    say he was. But I have to tell you, I’m
    skeptical about that because I remember how
    aggressive he was–aggressively he argued
    when we were off the record, and even when
    we were on the record, the objections in the
    case.
    So, I guess I’ll set that–that one I think
    probably should be set for an evidentiary
    hearing, because you know, it’s–it’s certainly
    not something that was on the record and
    certainly not something that I noticed. So
    number four we’ll set for evidentiary hearing.
    88                  MURRAY V. SCHRIRO
    Read in the context of the judge’s full statement, Roger’s
    claim is unfounded. The judge stated that his recollection
    was that Roger’s trial counsel was very aggressive and
    involved and that he had no memory of Roger’s trial counsel
    sleeping. Rather than merely denying the claim based upon
    his own recollection, however, the judge elected to hold an
    evidentiary hearing because “we have the Affidavits that he
    was [sleeping].” This situation is no different from a
    situation where a judge retains unexpressed recollections of
    trial matters and presides over an ensuing evidentiary hearing.
    In that vein, the judge’s articulated skepticism does not
    provide a basis for Roger’s claim of judicial bias because the
    judge’s “knowledge and the opinion it produced were
    properly and necessarily acquired in the course of the
    proceedings. . .” Liteky, 
    510 U.S. at 551
    . Therefore, the
    Arizona Supreme Court’s rejection of Roger’s Sixth
    Amendment claim of judicial bias was not contrary to or an
    unreasonable application of clearly established Supreme
    Court precedent.
    Finally, Roger asserts that he is entitled to an evidentiary
    hearing to develop this claim. However, because we review
    Roger’s claim under § 2254(d) rather than de novo, Supreme
    Court precedent bars him from receiving an evidentiary
    hearing. See Pinholster, 
    131 S.Ct. at 1398
     (directing that
    habeas claims under AEDPA be resolved on the record before
    the state court).
    J. Claim Forty-Eight - Ineffective Assistance of Trial
    Counsel Based on Counsel’s Failure to Present an
    Exculpatory Witness
    Roger contends that his counsel was ineffective because
    he “never bothered to interview [a] critical witness. . . .”
    MURRAY V. SCHRIRO                        89
    According to Roger, the witness, John Anthony (Anthony)
    was located by Robert’s attorney’s investigator approximately
    one week before trial. Roger complains that despite the
    discovery of this critical witness, his trial counsel failed to
    interview the witness, depose him, call him to testify, or
    request a continuance. Roger asserts that his trial counsel had
    “no strategic reason for not calling [the witness] directly.”
    Failure to call this witness, Roger argues, resulted in the
    absence of evidence tending to implicate others and
    suggesting that he was not present at the scene of the crime.
    Roger maintains that any reasonable attorney would have
    called this witness.
    The state PCR court’s denial of this claim did not provide
    a reasoned explanation. See Richter, 
    131 S. Ct. at 784
    (recognizing that AEDPA “does not require that there be an
    opinion from the state court explaining the state court’s
    reasoning. . . .”) (citations omitted). We can, however, look
    through to the evidentiary hearing and oral argument during
    which the PCR judge articulated the reasons for his later
    summary reiteration of his previous decision denying
    Robert’s identical claim. In this situation, “‘whe[re] the state
    court does not supply reasoning for its decision,’ we are
    instructed to engage in an ‘independent review of the record’
    and ascertain whether the state court’s decision was
    ‘objectively unreasonable.’” Walker, 709 F.3d at 939
    (quoting Delgado v. Lewis, 
    223 F.3d 976
    , 982 (9th Cir.
    2000)). “Crucially, this is not a de novo review of the
    constitutional question. Rather, ‘even a strong case for relief
    does not mean the state court’s contrary conclusion was
    unreasonable.’” 
    Id.
     (citations omitted).
    Through an evidentiary hearing on Robert’s identical
    claim, the PCR court learned that Anthony, the allegedly
    90                      MURRAY V. SCHRIRO
    exculpatory witness, purportedly witnessed a blue car parked
    outside the Grasshopper Junction store on the same night as
    the murders.        Anthony informed the prosecution’s
    investigator that he thought he saw the victim Morrison with
    three men, none of whom resembled Robert.16 Anthony’s
    testimony would have supported the defense’s theory of the
    case, that Roger and Robert happened to be at Grasshopper
    Junction, but did not commit the murders. Robert’s trial
    counsel informed the court that neither she nor her
    investigator were able to contact Anthony, which is why he
    was never called as a witness. Although her investigator
    discovered that Anthony was in a Veterans Administration
    treatment center in California, the investigator was never able
    to make contact with Anthony.
    The PCR court found that Robert’s trial counsel had
    investigated the exculpatory witness to the best of her ability.
    The PCR judge stated: “We don’t have any proof that the
    witness would have said what’s in the report. We still
    haven’t found the witness.” The PCR judge recalled that, as
    trial judge, he would not have granted a continuance for
    further investigation, and had to believe that both Robert’s
    trial counsel and Roger’s trial counsel were still trying to find
    Anthony through the end of the case. The PCR court found
    that Robert’s counsel was not deficient in her performance,
    and that even if she were deficient, the outcome of the trial
    would not have changed.
    At the oral argument of Roger’s identical claim, the PCR
    judge indicated that he had already heard and considered
    evidence from Robert regarding this exact claim, resulting in
    denial of Robert’s claim. The judge explained that he denied
    16
    This is the same exculpatory witness to whom Roger refers.
    MURRAY V. SCHRIRO                       91
    Robert’s identical claim because the evidence had established
    that the witness was unavailable–he could not be located.
    And, even if he had been located just prior to trial, counsel
    could not have “gotten him [to court] as a witness.” This
    evidence before the state court “was sufficient to resolve the
    factual question” whether Roger’s counsel performed
    deficiently, and thus the PCR court’s failure to hold an
    evidentiary hearing on the issue did not “render its fact-
    finding process unreasonable,” Hibbler, 693 F.3d at 1147.
    Because Roger did not demonstrate that his trial counsel had
    performed deficiently, the PCR court’s rejection of Roger’s
    claim was not contrary to established Supreme Court
    precedent. See Strickland, 
    466 U.S. at 687
    .
    Before us, Roger argues that the trial judge erred by not
    holding a separate evidentiary hearing before resolving his
    identical claim. However, Roger failed to adduce any
    evidence raising a question regarding the actual availability
    of the witness, or regarding a lack of diligence by his counsel
    in attempting to locate the witness. Roger merely stated:
    [My] position is that any reasonably effective
    criminal defense lawyer would have seen that
    he was a crucial witness at trial, would have
    located him, would have found him, would
    have subpoenaed him, would have had him in
    court and would have had him testify. [Trial
    counsel] didn’t do any of those things, period.
    Absolutely no evidence was presented to the PCR court
    to substantiate Roger’s assertions. Only speculation was
    offered. Specifically, Roger asked for funds so he could:
    92                  MURRAY V. SCHRIRO
    find Mr. Anthony nine years after the fact so
    [he could] present Mr. Anthony to [the PCR
    court] so that [the PCR court could] live and
    in color hear Mr. Anthony, hear his testimony,
    evaluate his credibility, and then make a
    determination whether if called by an
    effective counsel Mr. Anthony could have
    made a difference.
    After considering Roger’s speculative proffer, the PCR
    judge had no reason to hold another evidentiary hearing,
    especially in view of the PCR judge’s recognition that
    “there’s absolutely no proof at all that [Anthony] was
    available for the trial.”
    Critical to the PCR judge’s decision was the fact that
    “even if [Roger’s counsel] was incompetent, it would not
    have made a difference as far as the verdict was concerned.
    So it would not have made a difference. . . .” Thus, it fairly
    appears that the judge found the evidence of guilt so
    overwhelming that any testimony Anthony could have given
    would not have resulted in a different verdict. In other words,
    Roger could not establish Strickland prejudice. Ultimately,
    after evaluating the evidence presented during Robert’s
    evidentiary hearing and Roger’s failure to proffer any further
    relevant evidence, the PCR court summarily denied Roger’s
    claim of ineffective assistance of counsel.
    The district court denied Roger’s request for an
    evidentiary hearing, and agreed with the factual findings
    made by the state court. The district court correctly denied a
    federal evidentiary hearing because federal habeas review is
    limited to the record before the state court. See Pinholster,
    
    131 S. Ct. at
    1398–1400. Viewing that record, the district
    MURRAY V. SCHRIRO                        93
    court explained that to grant habeas relief, the reviewer would
    have to find that the jury would have believed the defense’s
    theory that Robert and Roger burglarized the victims’ store
    and home after finding the victims already dead. In support
    of this theory, Roger relied on Anthony’s statement regarding
    the three men he observed at the store who did not resemble
    Robert and Roger and who drove a different car; a statement
    from Angela Anthony that she heard a man threaten one of
    the victims the day prior to the murders; and proffered
    testimony from an unidentified witness that Robert and Roger
    were elsewhere when the three men were spotted at the store.
    Roger relies most heavily on the statement of John Anthony
    as the basis for his IAC claim.
    The state court determined that Roger’s counsel was not
    ineffective in this respect, and the state court’s determination
    was not contrary to, or an unreasonable application of,
    Strickland or other Supreme Court precedent. To establish
    ineffective assistance of counsel the petitioner must hurdle an
    extremely high bar. See Richter, 
    131 S. Ct. at 788
    .
    Strickland provides the legal standard for assessing a claim of
    ineffective assistance of counsel on habeas review. See
    466 U.S. at 685–87.
    First, the defendant must show that counsel’s
    performance was deficient. This requires
    showing that counsel made errors so serious
    that counsel was not functioning as the
    “counsel” guaranteed the defendant by the
    Sixth Amendment. Second, the defendant
    must show that the deficient performance
    prejudiced the defense. This requires showing
    that counsel’s errors were so serious as to
    deprive the defendant of a fair trial, a trial
    94                  MURRAY V. SCHRIRO
    whose result is reliable. Unless a defendant
    makes both showings, it cannot be said that
    the conviction or death sentence resulted from
    a breakdown in the adversary process that
    renders the result unreliable.
    Id. at 687.
    To meet the first prong “the defendant must show that
    counsel’s representation fell below an objective standard of
    reasonableness.” Id. at 688. This inquiry is “highly
    deferential.” Id. at 689; see also Richter, 
    131 S. Ct. at 788
    .
    When Strickland’s standards are coupled with the provisions
    of AEDPA, review is “doubly deferential.” Richter, 
    131 S. Ct. at 788
    . “[C]ounsel has a duty to make reasonable
    investigations or to make a reasonable decision that makes
    particular investigations unnecessary. . . .” Strickland,
    
    466 U.S. at 691
    . Reasonableness is viewed as of the time of
    the conduct and against the background of the facts of the
    case. See Rompilla v. Beard, 
    545 U.S. 374
    , 381 (2005). The
    duty to investigate does not require “defense lawyers to scour
    the globe on the off chance something will turn up;
    reasonably diligent counsel may draw a line when they have
    good reason to think further investigation would be a
    waste. . . .” 
    Id. at 383
     (citations omitted).
    The second prong requires the defendant to “show that
    there is a reasonable probability that, but for counsel’s
    unprofessional errors, the result of the proceeding would have
    been different. A reasonable probability is a probability
    sufficient to undermine confidence in the outcome.”
    Strickland, 466 U.S. at 694. The question for a reviewing
    court applying Strickland together with the § 2254(d) overlay
    is whether there is a “reasonable argument that counsel
    MURRAY V. SCHRIRO                        95
    satisfied Strickland’s deferential standard,” such that the state
    court’s rejection of the IAC claim was not an unreasonable
    application of Strickland. Richter, 
    131 S. Ct. at 788
    . Relief
    is warranted only if no reasonable jurist could disagree that
    the state court erred. See Pinholster, 
    131 S. Ct. at 1402
    .
    Even on de novo review, Roger’s IAC claim falters on
    both prongs of the Strickland standard. Counsel was not
    deficient, and Roger suffered no Strickland prejudice. As
    discussed, the PCR court held an evidentiary hearing before
    resolving Robert’s IAC claim predicated on his counsel’s
    failure to produce John Anthony as a witness. The record
    reflects that the exculpatory witness was not available and
    that Robert’s counsel made a reasonable effort to locate and
    present the witness. Counsel’s performance was not deficient
    in view of her reasonable investigatory efforts. See Rompilla,
    
    545 U.S. at
    382–83. We also agree with the district court that
    the overwhelming evidence of guilt forecloses any credible
    argument that the outcome of the trial would have been
    affected by the proffered exculpatory evidence. To acquit
    Robert and Roger, the jury would have had to believe that the
    brothers found the victims already dead and got the victims
    blood on their clothes while burglarizing the store and the
    residence. This scenario, by the way, was totally inconsistent
    with the facts that the male victim’s wallet containing $800
    was left undisturbed in his pants pocket, and that $172 was
    found on a chair. The implausibility of the proffered
    exculpatory version of events and the strength of the
    inculpatory evidence both bolster the state court’s finding
    under the doubly deferential AEDPA review applicable to
    IAC claims. See Richter, 
    131 S. Ct. at
    787–88. Because even
    under de novo review the state court’s denial of Roger’s IAC
    claim that parroted Robert’s claim was not contrary to or an
    96                  MURRAY V. SCHRIRO
    unreasonable application of Strickland, Roger’s claim fails.
    See 
    id.
    IV.    SUMMARY
    We agree with the district court’s conclusion that Roger
    was not entitled to habeas relief on any of the certified claims
    because the state court’s rejection of these claims was not
    contrary to or an unreasonable application of AEDPA. Even
    though this sensational, small-town murder understandably
    generated substantial media coverage, the state court’s
    decision that the coverage was not constitutionally prejudicial
    was not contrary to or an unreasonable application of
    Supreme Court precedent. Similarly, the state court’s
    rejection of Roger’s challenge to the jury venire was not
    contrary to or an unreasonable application of Supreme Court
    precedent. Acceptance of the prosecutor’s race-neutral
    explanations for the exercise of his peremptory challenges
    was not contrary to or an unreasonable application of Batson.
    Because the Supreme Court has eschewed claims predicated
    on the unavailability of immaterial evidence, the state court’s
    denial of Roger’s belated request to inspect a sanitized crime
    scene was also not contrary to, or an unreasonable application
    of, Supreme Court precedent.
    The evidence in the record did not support Roger’s
    request for jury instructions on voluntary intoxication and
    second degree murder. The state court’s denial of relief was
    consistent with Supreme Court precedent.
    As the Arizona Supreme Court detailed, the sentencing
    court meticulously weighed the mitigating circumstances
    against the aggravating factors before imposing a death
    MURRAY V. SCHRIRO                      97
    sentence. Its determination was not contrary to or an
    unreasonable application of Supreme Court precedent.
    The Arizona Supreme Court’s decisions denying relief on
    the claims of ineffective assistance of counsel were not
    contrary to or an unreasonable application of Strickland,
    particularly in view of the double deference applicable to
    AEDPA claims of ineffective assistance of counsel. The
    district court correctly resolved the claims on the evidence
    presented to the state courts. No cognizable Martinez claim
    was asserted. We affirm the denial of habeas relief as to all
    certified claims.
    AFFIRMED.