Murray v. Schriro

Citation745 F.3d 984
Decision Date17 March 2014
Docket NumberNo. 08–99008.,08–99008.
PartiesRobert Wayne MURRAY, Petitioner–Appellant, v. Dora SCHRIRO, Warden, Respondent–Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

745 F.3d 984

Robert Wayne MURRAY, Petitioner–Appellant,
Dora SCHRIRO, Warden, Respondent–Appellee.

No. 08–99008.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted Sept. 13, 2012.
Filed March 17, 2014.

[745 F.3d 991]

Jennifer Y. Garcia (argued), Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender; and Jaleh Najafi, Assistant Federal Public Defender, Phoenix, AZ, for Petitioner–Appellant.

Jeffrey A. Zick (argued), Assistant Attorney General; Terry Goddard, Attorney General; and Kent Cattani, Chief Counsel, Arizona Attorney General's Office, Phoenix, AZ, for Respondents–Appellees.

Appeal from the United States District Court for the District of Arizona, David G. Campbell, District Judge, Presiding. D.C. No. 2:99–CV–01812–DGC.


BYBEE, Circuit Judge:

Robert Wayne Murray (“Murray”) was convicted in Arizona of two counts of first-degree murder and sentenced to death. The Arizona Supreme Court affirmed his conviction, and the United States Supreme Court denied Murray's petition for certiorari. Arizona courts denied Murray's request for post-conviction relief. In this habeas suit brought under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104–132, 110 Stat. 1214, we address three issues: (1) whether the Arizona state court's denial of Murray's Batson motion was “contrary to, or involved an unreasonable application of, clearly established Federal law” or was “based on an unreasonable determination of the facts,” 28 U.S.C. § 2254(d); (2) whether the state court's denial of Murray's ineffective assistance of counsel claim was “contrary to, or involved an unreasonable application of, clearly established Federal law” or was “based on an unreasonable determination of the facts,” id.; and (3) whether Murray “made a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), when the district court denied his “Motion for Leave to File a Second Amended Motion for Writ of Habeas Corpus,” and if so, whether the district court abused its discretion in denying the motion. The district court for the

[745 F.3d 992]

District of Arizona denied Murray's petition for writ of habeas corpus.

We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.

A. Facts
1. Background

Murray's responsibility for the murders is not questioned. On May 14, 1991, LaVern Raduenz stopped at Grasshopper Junction, located near Kingman, Arizona, for coffee. Raduenz was an acquaintance of Dean Morrison and Jacqueline Appelhans, who lived at Grasshopper Junction and ran the store/restaurant situated there. Approaching the restaurant, Raduenz noticed that there was money lying on the ground outside, the restaurant door was open, and the cash register was displaced from its usual position. Raduenz then walked over to Morrison's house and discovered that the door to the house was also open, revealing Morrison's and Appelhans's bodies, clad in bathrobes, lying face down in the living room. Morrison had been shot twice with a .38 caliber pistol, in the neck and temple, and his skull had been shattered by a shotgun blast at close range. Appelhans had been shot at least twice in the back of the neck with a .22 caliber weapon and two .38 caliber slugs were removed from her skull.

Morrison's house had been ransacked. Drawers were open, items littered about, and a cushion cover was missing from the couch. In the store, the cash-register drawer had been removed and a roll of coins and loose change were strewn about the kitchen floor and throughout the courtyard. Although all of the facts pointed to robbery as the underlying motivation, $172 was found lying on a desk chair and Morrison's wallet, containing $800, was undisturbed in his pants' pocket. In the store, packs of Marlboro cigarettes were left in paper bags and the gasoline register was on. Outside on the store's patio were Morrison's glasses, a flashlight, and a set of keys. Law enforcement officers also discovered guns, bullets, and shell casings at the crime scene.

A Mohave County Sheriff's Department detective analyzed the tracks—footprints—at the crime scene. Besides those created by Raduenz and law enforcement officers, the detective identified four sets of tracks. Two sets of tracks were attributed to the victims, while the other two were determined to have been made by a pair of tennis shoes and a pair of western-style boots. Photographs of the tracks were taken, and some sketches made. Moreover, the detective determined that the tracks indicated that Morrison had resisted his attacker. Near some of the tracks attributed to Morrison and his assailant, law enforcement officers also found tire tracks attributed to a Grasshopper Junction tow truck, owned by Morrison, that was nowhere to be found at the crime scene.

Elsewhere, on the same morning, an Arizona Department of Public Safety officer happened upon a white 1988 Ford Tempo sedan bearing Alabama license plates. The officer's suspicions were aroused by the vehicle's behavior, leading the officer to run an inquiry on the vehicle's license plate number. The officer learned that the vehicle and its two occupants, Murray and his brother Roger Wayne Murray, were wanted in Alabama, suspected of having been involved in an assault and robbery and potentially armed and dangerous. As the officer attempted to pull over the vehicle, a high-speed chase ensued. The vehicle eventually left the highway, running a manned and armed

[745 F.3d 993]

roadblock, and only stopping when it left the road and came to an impassable wash.

The driver, Murray, threw from the vehicle a .38 caliber revolver containing four live bullets. A subsequent search of Murray's person yielded two spent shotgun shells and keys that were later determined to fit a 1991 Chevrolet pickup located on Morrison's property. His passenger, Roger Wayne Murray, threw a loaded .25 caliber semi-automatic pistol from the vehicle. The shell casings found at the crime scene and the casings recovered from Murray's pocket were determined to have been fired by the guns found in the Murray brothers' possession. The men were wearing tennis shoes and boots consistent with the tracks identified at Grasshopper Junction.

A subsequent vehicle inventory uncovered: a loaded twelve-gauge shotgun and live shells; a checkered couch cushion, matching the pattern of the couch in Morrison's house, and containing rolled coins stamped “Dean Enterprises, Grasshopper Junction, Kingman, Arizona, 86401”; a blue pillowcase containing approximately $1400 in rolled coins and $3300 in cash; gloves; a receipt from the Holiday House Motel in Kingman, Arizona, dated May 12, 1991 (the Murray brothers had listed a 1988 Ford on the hotel registration card and had checked out on May 13, 1991); and a road atlas with the locations of two rural shops circled, including Grasshopper Junction. A scanner and connecting knob, fitting the empty bracket of the Grasshopper Junction tow truck that had left the tire tracks found at the crime scene—which was later discovered abandoned on westbound I–40—were also found in the vehicle.

Human blood and tissue was found on the Murray brothers' clothing, as well as on the cushion cover recovered from their vehicle. Blood tests indicated that the blood on Roger Wayne Murray's pants could have come from the victims or Murray; the blood on Murray's shirt could have come from the victims, but not from Roger Wayne Murray; and the blood on the cushion could have come from Appelhans, but not Morrison or either of the Murray brothers.

2. Jury Selection and Trial

The Murrays were arrested and indicted in Mohave County, Arizona, for the first-degree murders of Morrison and Appelhans, and the armed robbery of Morrison. During jury selection, after the trial court excused potential jurors for cause, only two Hispanic venire members remained: potential jurors Pethers and Alvardo. The prosecutor then used peremptory challenges to dismiss the two remaining Hispanic potential jurors. Murray's trial counsel objected to the prosecutor's use of the peremptory challenges and requested that the trial court conduct an inquiry under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

In light of the objection, the trial judge asked the prosecutor to respond. Regarding potential juror Pethers, the following colloquy ensued:

PROSECUTOR: Your Honor, first, as to Ms. Pethers, I don't believe that she is a Hispanic. I don't recall seeing that on her jury questionnaire, and I don't recall if she appeared to talk Hispanic to me. So, I am not sure that that's a showing—

THE COURT: I don't have the questionnaire in front of me.

DEFENSE: The questionnaire did indicate that she's Hispanic, Your Honor. I believe her maiden name was Garcia, but her first name is Christina.

THE COURT: I remember she said her mother's name was Garcia.

[745 F.3d 994]

PROSECUTOR: Right. I am not sure that's Hispanic, Garcia, as opposed to Spanish, the amount I know about her mother from the prosecutor. I could be wrong, I don't know.

THE COURT: Well, of course, I can look at the questionnaires. I will have to take a recess to do that. But, let's assume for the time being that she is Hispanic and the defense is correct.

PROSECUTOR: Your Honor, the State recently did a major drug investigation of her mother and her mother's brother.... It's a very big case. Both of those defendants went to jail for a time. I'm not sure of the status of Mrs. Garcia. From what Mrs. Pethers said, the charge was dismissed. I believe there's been some sort of negotiated deal, but I am not positive about that. But, I know both those people were heavy into drugs. Both of the people around them were suspected of being in drugs. There's a forfeiture action proceeding against Garcia, Mallon. This being the daughter, I do not believe that she—I don't...

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