Hooper v. Shinn
| Citation | 985 F.3d 594 |
| Decision Date | 08 January 2021 |
| Docket Number | No. 08-99024,08-99024 |
| Parties | Murray HOOPER, Petitioner-Appellant, v. David SHINN, Warden, Respondent-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Thomas J. Phalen (argued), Phoenix, Arizona; Jon M. Sands, Federal Public Defender; Dale A. Baich, Assistant Federal Public Defender; Office of the Federal Public Defender, Phoenix, Arizona; for Petitioner-Appellant.
Jeffrey L. Sparks (argued), Jon G. Anderson, and John Pressley Todd, Assistant Attorneys General; Kent Cattani, Chief Counsel, Capital Litigation Section/Criminal Appeals Section; Office of the Attorney General, Phoenix, Arizona; for Respondent-Appellee.
Before: Jacqueline H. Nguyen, Mark J. Bennett, and Ryan D. Nelson, Circuit Judges.
In this murder-for-hire case, an Arizona jury convicted Murray Hooper on all counts, including two counts of first-degree murder. The trial court sentenced Hooper to death. On New Year's Eve 1980, while Pat Redmond, his wife Marilyn Redmond, and Marilyn's mother Helen Phelps (who was visiting) were home preparing for a festive dinner, Hooper, William Bracy, and Ed McCall forced their way into the home at gunpoint. Hooper and his coconspirators demanded jewelry, money, and guns. They herded their victims into the master bedroom and forced them to lie face down on the bed. Redmond, Marilyn, and Phelps were then bound and gagged. One or all the intruders shot each victim in the head, and one of the intruders slashed Redmond's throat. Redmond and Phelps died, but Marilyn survived.
Hooper appeals the district court's denial of his petition for a writ of habeas corpus. He raises three certified issues: (1) whether the prosecution's nondisclosure and delayed disclosures of evidence violated his due process rights under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ; (2) whether the district court erred in denying him leave to amend his petition to add a claim that his death sentence violates the Eighth and Fourteenth Amendments because his sentence was based, in part, on now-invalid convictions; and (3) whether Martinez v. Ryan , 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), excuses the procedural default of his claim that his trial counsel rendered ineffective assistance at sentencing. Hooper also raises two uncertified issues: (1) whether he was unconstitutionally shackled at trial; and (2) whether the unconstitutional shackling caused him to involuntarily waive his right to be present at voir dire because it forced him to choose between two constitutional rights.
We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm the district court's denial of habeas relief.
Robert Cruz, head of a Chicago crime organization, hired Hooper, Bracy, and McCall to kill Redmond.1 Redmond and Ron Lukezic co-owned Graphic Dimensions, a successful Phoenix printing business. In the summer of 1980, Cruz and Arthur Ross (Lukezic's brother-in-law) offered Graphic Dimensions several lucrative printing contracts with Las Vegas hotels, but Redmond rejected the offers. Cruz was unhappy and wanted Redmond killed to get Redmond's interest in the business. His plan was to eventually take over the entire business by having Lukezic killed.
In September 1980, Cruz offered Arnold Merrill $10,000 to kill Redmond, but Merrill refused. In early December 1980, Hooper and Bracy, who lived in Chicago, flew from Chicago to Phoenix, and Cruz and Merrill picked them up at the airport. Over the next several days, Merrill drove Hooper and Bracy to various locations. On one occasion, Merrill took the men to see Cruz, and Merrill saw Cruz give a stack of $100 bills to Bracy, who gave some to Hooper. That same day Merrill drove the men to the Gun Trader, a gun store owned by Merrill's brother, Raymond Kleinfeld. Hooper picked out a large knife, paid for by Cruz, and Kleinfeld gave Bracy a package containing three guns.
At some point, Merrill, Hooper, and Bracy spotted Redmond leaving a bar and followed him as he drove away from the bar. During the chase, Hooper held his gun out of the window to shoot Redmond. Merrill sped up and turned into a parking lot to prevent Hooper from shooting Redmond. After this aborted attempt, Hooper and Bracy moved out of Merrill's home and into the apartment of Valinda Lee Harper and Nina Marie Louie, two women Merrill had introduced to Hooper and Bracy. At some point during their trip, Merrill also introduced Hooper and Bracy to McCall. Hooper and Bracy eventually returned to Chicago.
Hooper and Bracy came back to Phoenix on December 30, 1980. That day, at Cruz's direction, Merrill and George Campagnoni drove by Redmond's home and Graphic Dimensions to verify the addresses. The next morning, McCall dropped off Hooper and Bracy at Merrill's home, and Merrill gave Bracy a piece of paper with directions to Redmond's home and Graphic Dimensions. Later that morning, McCall came back for Hooper and Bracy, and the three left Merrill's home. Dean Bauer (Cruz's employee) then came to Merrill's home and dropped off two airplane tickets from Phoenix to Chicago for "Sam Johnson" and "Tony Jones."
That same day, Louie arrived at her apartment around noon. McCall, Hooper, and Bracy were already there. Bracy asked Louie "what time it got dark" and said that they had "some business to take care of." All three men were armed with guns. Louie had to work that night, and Harper borrowed McCall's car to drive Louie to work. Before Harper and Louie left the apartment around 5:45 p.m., McCall told Harper that she needed to come back quickly because "they had a very important appointment."
Later that night, Hooper, Bracy, and McCall went to Redmond's home and killed Redmond and Phelps and attempted to kill Marilyn. After the murders, they went to Merrill's home. Around midnight, Campagnoni drove Hooper and Bracy from Merrill's home to the Phoenix airport with the airline tickets for "Sam Johnson" and "Tony Jones."
The day after the murders, McCall went to Harper's and Louie's apartment and told them how the murders had been committed, including describing his role and Hooper's role in committing them. He told them that it was a "contract ... hit, not [a] robbery" and that Hooper had cut Redmond's throat and shot Marilyn. McCall later detailed the crimes to Merrill and told him that he was expecting $10,000 from Chicago.
On New Year's Eve 1980, Officer Louis Martinez responded to a call that there were two or possibly three dead bodies at the address of the Redmond home. When Officer Martinez arrived, he questioned Marilyn who was conscious but "had a very detached look on her face." Marilyn told him, "Three black men came in and robbed us." She initially reported to Officer Thomas Varela, who also questioned her at the scene, that the intruders were all black. But Officer Varela asked if she was sure, and Marilyn then told him that two of the intruders were black and one was white. Later that same night at the hospital, Marilyn reported to Officer Jesus Perez that one of the intruders was white and the other two were black. She also reported that one of the black males was wearing a tan leather jacket with dark pants. Around 9 p.m., about two hours after the murders, three black men—Ronald Bradford, Michael Bradford, and Novell Ward (collectively, the "Bradfords and Ward")—were arrested on traffic, weapons, and drug charges. Ronald Bradford was very slender and had a wart on his forehead above his nose. Ward was wearing a brown vinyl or leather jacket with a fleece collar at the time of his arrest.
Around 10:05 p.m., while the Bradfords and Ward were in custody, the Maricopa County Sheriff's Office received an anonymous call that a black man named "Slim" with a wart on his nose was involved in the Redmond murders. The caller said that Slim was currently at the corner of 13th and Washington Streets. The police interviewed, photographed, and fingerprinted the Bradfords and Ward, and the police ultimately ruled them out as suspects in the Redmond crimes.
On January 1, 1981, Harper called the police and implicated Hooper, Bracy, and McCall in the murders. During her interview, Harper said that she was with Bracy in Phoenix on New Year's Eve.
On January 4, 1981, officers executed a search warrant on McCall's home and vehicle. They found Long's Drugstore receipts inside his vehicle, showing that three pairs of surgical gloves and adhesive tape had been purchased the same day as the murders. They also found two plastic gloves in a garbage bag at McCall's home.
A fingerprint analyst lifted fingerprints from McCall's vehicle and the Redmond home. The analyst was unable to match any to Hooper, Bracy, McCall, or the Bradfords and Ward.
The State's criminalist analyzed the bullets removed from the victims and found at the crime scene and determined that they were .38 caliber bullets, and that all had been fired from the same gun. The bullets could have been fired from a Colt Trooper .357 magnum.
Fifty-three days after the murders, Marilyn flew to Chicago to view lineups of Hooper and Bracy. After viewing the first lineup, which included Bracy, Marilyn reserved judgment. After viewing the second lineup with Hooper, Marilyn positively identified Hooper. Marilyn then asked to see the first lineup again, and she identified Bracy.
Hooper and Bracy were tried together. Each was charged with conspiracy to commit first-degree murder (Count One), two counts of first-degree murder (Counts Two and Three), one count of attempted first-degree murder (Count Four), three counts of kidnapping (Counts Five to Seven), three counts of armed robbery (Counts Eight to Ten), and one count of first-degree burglary (Count Eleven). Their trial started on October 20, 1982. The jury convicted Hooper and Bracy on all counts on December 24, 1982.
Hooper's and Bracy's primary...
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