Murray v. Schriro, 021418 FED9, 08-99013

Docket Nº:08-99013
Opinion Judge:RAWLINSON, Circuit Judge:
Party Name:Roger W. Murray, Petitioner-Appellant, v. Dora Schriro, Warden, Respondent-Appellee.
Attorney:John E. Charland (argued), The Charland Law Firm, Phoenix, Arizona, for Petitioner-Appellant. Jeffrey A. Zick (argued) and Jacinda A. Lanum, Assistant Attorneys General, Capital Litigation Section; Lacey Stover Gard and Kent E. Cattani, Chief Counsel; Mark Brnovich, Attorney General; Office of th...
Judge Panel:Before: Johnnie B. Rawlinson, Jay S. Bybee, and Sandra S. Ikuta, Circuit Judges.
Case Date:February 14, 2018
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Roger W. Murray, Petitioner-Appellant,

v.

Dora Schriro, Warden, Respondent-Appellee.

No. 08-99013

United States Court of Appeals, Ninth Circuit

February 14, 2018

Argued and Submitted September 13, 2012 Las Vegas, Nevada

Appeal from the United States District Court for the District of Arizona David G. Campbell, District Judge, Presiding D.C. No. 2:03-CV-00775-DGC

John E. Charland (argued), The Charland Law Firm, Phoenix, Arizona, for Petitioner-Appellant.

Jeffrey A. Zick (argued) and Jacinda A. Lanum, Assistant Attorneys General, Capital Litigation Section; Lacey Stover Gard and Kent E. Cattani, Chief Counsel; Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; for Respondent-Appellee.

Before: Johnnie B. Rawlinson, Jay S. Bybee, and Sandra S. Ikuta, Circuit Judges.

ORDER AND AMENDED OPINION

SUMMARY[*]

Habeas Corpus/Death Penalty

The panel amended an opinion affirming the denial of a 28 U.S.C. § 2254 habeas corpus petition challenging a conviction and capital sentence for murder, denied a petition for rehearing, and denied on behalf of the court a petition for rehearing en banc.

In the amended opinion:

The panel affirmed the denial of relief as to petitioner's change of venue motion, including as to petitioner's contention that there is a heightened obligation to change venue in capital cases. The panel held that 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.

For the reasons set forth in Robert Murray v. Schriro, 745 F.3d 984 (9th Cir. 2014), the panel affirmed the denial of relief as to petitioner's claim under Batson v. Kentucky, 476 U.S. 79 (1986). The panel wrote that, in addition, it was not persuaded that the outcome of the Batson issue would change had comparisons been made between prospective jurors.

The panel 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 and second degree murder. The panel held that the evidence in the record did not support the request, and that the state court's denial of relief was consistent with Supreme Court precedent.

The panel affirmed the denial of relief as to petitioner's claim that the sentencing court misapplied Eddings v. Oklahoma, 455 U.S. 104 (1982), and its progeny by requiring a nexus between evidence of petitioner's dysfunctional childhood and his commission of the crimes. The panel held that any such causal nexus error was harmless.

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).

ORDER

The opinion in this case, published at 746 F.3d 418 (9th Cir. 2014), is hereby amended as follows:

1. 746 F.3d at 448, Claim Six - Batson Violation a. Change the Murray citation to <745 F.3d 984, 1006-10 (9th Cir. 2014)>.

b. Insert the following language at the end of the section: ="" away="" from="" their="" questionnaire="" answers="" indicating="" indecisiveness.="" third="" mentioned="" by="" b="" gave="" no="" indication="" indecisiveness="">.

2. 746 F.3d at 455, Claim Twenty-Six - Failure to Appropriately Consider Mitigating Evidence a. Second Paragraph, last line: Change to .

b. Fourth Paragraph:

i. Line 4 - Delete the citation to Towery v. Ryan, 673 F.3d 933, 946 (9th Cir. 2012) (per curiam).

ii. Delete the last sentence beginning with through the citation to Lopez v. Ryan, 630 F.3d 1198, 1204 (9th Cir. 2011), and the accompanying parenthetical.

3. 746 F.3d at 455-56: Delete the fifth paragraph on page 455, beginning with through the citation to Styers, 547 F.3d at 1035 and the accompanying parenthetical; the last paragraph of page 455, continuing to page 456, beginning with through ; and the following paragraph on page 456, beginning with through the citation to , and the accompanying parenthetical.

4. 746 F.3d at 457: Delete the final paragraph of the section, beginning with through the citation to , and the accompanying parenthetical.

5. 746 F.3d at 466, SUMMARY Replace the third paragraph of the section beginning with , through with the following language:

A copy of the Amended Opinion is attached.

With these amendments, the panel has voted to deny the Petition for Rehearing. The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing and petition for rehearing en banc, filed March 8, 2017, are DENIED.

No further petitions for rehearing may be filed.

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.

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 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. 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....

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