547 F.3d 1026 (9th Cir. 2008), 07-99003, Styers v. Schriro

Docket Nº:07-99003.
Citation:547 F.3d 1026
Party Name:James Lynn STYERS, Petitioner-Appellant, v. Dora B. SCHRIRO, Arizona Department of Corrections, Respondent-Appellee.
Case Date:October 23, 2008
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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547 F.3d 1026 (9th Cir. 2008)

James Lynn STYERS, Petitioner-Appellant,


Dora B. SCHRIRO, Arizona Department of Corrections, Respondent-Appellee.

No. 07-99003.

United States Court of Appeals, Ninth Circuit.

October 23, 2008

Argued and Submitted Aug. 20, 2008.

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Cary Sandman of Waterfall Economidis, Caldwell, Hanshaw & Villamana, Amy Beth Krauss, Tucson, AZ, for the petitioner-appellant.

Terry Goddard, Attorney General, and Jeffrey A. Zick, Kent Cattani and J.D. Nielsen, Assistant Attorney General of the State of Arizona, Phoenix, AZ, for the respondent-appellee.

Appeal from the United States District Court for the District of Arizona; Earl H. Carroll, District Judge, Presiding. D.C. No. CV-98-02244-PHX-EHC.

Before: ALEX KOZINSKI, Chief Judge, JEROME FARRIS and CARLOS T. BEA, Circuit Judges.


James Lynn Styers, an Arizona state prisoner, appeals the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition, challenging his conviction and death sentence for conspiracy, first degree murder, and kidnaping. We affirm the

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district court on all counts, except Styers' claim that the Arizona Supreme Court failed to fulfill its obligations under Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990).


In early December 1989, Styers shot and killed the four-year-old son of Debra Milke, the woman with whom he and his daughter shared an apartment.1 A jury subsequently convicted him of first degree murder, conspiracy to commit first degree murder, child abuse and kidnaping. With respect to the murder count, the trial court found three statutory aggravating factors and no mitigating factors sufficiently substantial to call for leniency, and imposed the death penalty.

After exhausting his direct appeals 2 and state collateral review, Styers petitioned for a writ of habeas corpus in federal court, raising a number of constitutional claims regarding his trial and sentencing proceedings. The district court denied his petition, but granted a certificate of appealability as to Styers' claim that he received ineffective assistance of counsel. We expanded the certificate of appealability to include also Styers' claims that the Arizona Supreme Court failed adequately to narrow a facially vague aggravating factor applied in his case, and failed to fulfill its constitutional obligation, under Clemons, to reweigh all aggravating and mitigating factors after striking one of the aggravating factors.


The district court had jurisdiction over Styers' habeas petition under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. § 1291.

Styers filed his § 2254 petition after the effective date of the Anti-Terrorism and Effective Death Penalty Act (“ AEDPA" ). Habeas relief is therefore available only if the state court ruling “ resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or “ was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).


I. Ineffective Assistance of Counsel

Styers contends that he received ineffective assistance of trial counsel based on counsel's failure to move to strike the jury panel on the grounds of prejudicial pre-trial publicity.3

A. Pre-Trial Publicity

The body of Christopher Milke was found by police in the evening of Sunday, December 3, 1989. The following day, the Arizona Republic, a Phoenix area newspaper, reported on its front page that Milke, Styers, and Roger Scott were arrested and charged with first degree murder. The paper further reported that Milke was not

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present when the boy was killed, but conspired with “ the other suspects to have her son killed." The following day, another article appeared on the front page of the paper speculating as to the possible motives for the killing, including life insurance proceeds and possible abuse. However, the article also reported that the medical examiner who performed the autopsy found no indication of either physical or sexual abuse. The article ultimately indicated that the chief motive appeared to be that Milke and Styers felt the boy was too much trouble, but noted that Styers' three-year-old daughter, who also lived at the apartment, was not harmed. By the third day, the newspaper reported the substance of Scott's statement to police, which included his assertion that he was to receive $250 from Styers for his help and that he drove Styers and Christopher to the general vicinity of the crime scene, after which Styers walked Christopher to a nearby wash 4 and shot him three times. Subsequent articles also reported on the funeral proceedings and reactions by community members to the killing. One article printed several written statements of fourth grade school children; while most focused on their sorrow for Christopher, several children also stated that death was the appropriate punishment for the killers. A total of twenty-five articles about the crime were published in the month of December.

However, in the next seven months (January 1st, 1990 through September 10, 1990), only five more articles regarding the crime were published.

Debra Milke was the first of the three defendants to proceed to trial; her trial began on September 11, 1990. Over the next month, twenty-six articles on Milke's trial were published. While the majority of these articles focus on the contents of Milke's confession, a few contain references to Styers as the alleged triggerman and someone who plotted the murder with Milke. The jury returned a guilty verdict in Milke's case on Friday, October 12, 1990.

Jury selection for Styers' trial began three days later on October 15, 1990.

B. Voir Dire Proceedings

The voir dire was conducted entirely by the trial judge. The first group of prospective jurors called for questioning consisted of a venire of thirty-six. After notifying the panel of the charges against Styers, the trial judge asked if anyone had “ seen, heard, or read anything about the case." The trial judge observed that “ [v]irtually everybody" raised his or her hand. The trial judge then asked whether any of the prospective jurors had formed any opinion as to the “ guilt or innocence" of the defendant. Those who raised their hands in response to this question were then questioned individually, and asked whether they would be able to set aside their opinion. Any juror who indicated in the negative was struck by the trial judge. As jurors were excused, new prospective jurors were rotated into the mix from a separate pool consisting of forty-four. Of these, thirty-nine stated that they had heard of the case, and eighteen admitted to having formed opinions they could not set aside. All eighteen were excused.

Of the final twelve jurors who rendered the verdict, six came from the group of thirty-six who had “ virtually" all heard of the case, while the other six came from the group of forty-four. Of these latter six, only one had not heard of the case. However, none of the twelve jurors stated that

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he or she had formed an opinion about this case-either qualified or unqualified.

C. Ineffective Assistance of Counsel

To establish ineffective assistance of counsel, Styers must show that defense counsel's performance was objectively deficient and resulted in prejudice. See Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir.2007) (en banc) (citing Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Thus, Styers must not only demonstrate that defense counsel's failure to move to strike the jury panel was out of “ the wide range of professionally competent assistance," see Strickland, 466 U.S. at 690, 104 S.Ct. 2052, but also that, had counsel so moved, there is reasonable probability that the motion would have been granted.5 Id. at 695, 104 S.Ct. 2052; Kimmelman v. Morrison, 477 U.S. 365, 383-91, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). As such, “ [t]he governing legal standard plays a critical role in defining the question to be asked in assessing prejudice for counsel's errors." Strickland, 466 U.S. at 695, 104 S.Ct. 2052.

In reviewing challenges to jury panels based on pre-trial publicity, the Arizona courts apply the same criteria as that employed by the United States Supreme Court. Thus, a defendant challenging a jury panel exposed to pre-trial publicity must show that the publicity likely resulted in the denial of a trial by fair and impartial jurors. See State v. Greenawalt, 128 Ariz. 150, 163, 624 P.2d 828, 841 (1981) (“ [O]ur inquiry is whether the publicity, extensive or otherwise, was prejudicial to the point of having the probable effect of precluding a trial by fair and impartial jurors." ); Dobbert v. Florida, 432 U.S. 282, 302-03, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977) (examining the impact of press coverage on juror's impartiality); Murphy v. Florida, 421 U.S. 794, 799-801, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975) (same).

In establishing his claim, a defendant may not merely rely on the fact that the prospective jurors were exposed to pre-trial publicity, but must also establish that “ the jurors [had] formed preconceived notions concerning the defendant's...

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