Roseberry v. Ryan

• Decision Date: 02 August 2019
• Docket Number: No. CV-15-01507-PHX-NVW,CV-15-01507-PHX-NVW
• Parties: Homer Ray Roseberry, Petitioner, v. Charles L. Ryan, et al., Respondents.
• Court: U.S. District Court — District of Arizona

Homer Ray Roseberry, Petitioner, v. Charles L. Ryan, et al., Respondents.

No. CV-15-01507-PHX-NVW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

August 2, 2019

ORDER

DEATH PENALTY CASE

Table of Contents

I. BACKGROUND ............................................................................................ 1

II. AEDPA ........................................................................................................... 3

III. DISCUSSION ................................................................................................. 3

A. Claims 1 and 2 ....................................................................................... 4

1. Claim 1 ........................................................................................ 4

2. Claim 2 ........................................................................................ 7

B. Unexhausted, Defaulted Claims ........................................................... 8

C. Exhausted Claims ................................................................................. 9

1. Claim 11 ..................................................................................... 9

2. Claim 20 ..................................................................................... 11

3. Claim 24 (in part) ....................................................................... 12

a. Claim 24(A)(2) ................................................................... 12

b. Claim 24(A)(5) ................................................................... 13

c. Claim 24(G) ........................................................................ 14

d. Claim 24(H) ........................................................................ 16 e. Claim 24(N) ........................................................................ 17

D. Ineffective Assistance of Counsel Claims ........................................... 18

1. Claim 25: Ineffective assistance of trial counsel ....................... 19

a. Trial counsel repeated various prejudicial deficiencies throughout their representation .......................................... 21

b. Trial counsel performed deficiently and prejudicially in investigating, presenting, and litigating Roseberry's case before trial .......................................................................... 30

c. Trial counsel performed deficiently and prejudicially during jury selection ........................................................... 32

d. Trial counsel performed deficiently and prejudicially during the guilt/innocence phase of Roseberry's trial . 36

e. Trial counsel performed deficiently and prejudicially during the sentencing phases of Roseberry's trial ............. 42

3(a) Evidence presented at sentencing ........................... 43

3(b) New Evidence ......................................................... 45

3(c) Analysis ................................................................... 47

3(d) Conclusion .............................................................. 51

f. Conclusion .......................................................................... 53

2. Claim 26: Ineffective assistance of appellate counsel ............... 54

a. Causal-nexus and Enmund/Tison claims ............................ 55

b. Trial court errors ................................................................ 56

c. Failure to challenge Arizona's death penalty statute ......... 57

d. Failure with respect to the record and the case file ............ 58

e. Appellate counsel performed ineffectively throughout his representation ..................................................................... 58

3. Claim 28: ineffective assistance of PCR counsel ...................... 58

E. Claims Challenging Arizona's Death Penalty Statute ......................... 59

1. Claim 29 ..................................................................................... 59

2. Claim 30 ..................................................................................... 59

3. Claim 31 ..................................................................................... 59

4. Claim 32 ..................................................................................... 60

5. Claim 33 ..................................................................................... 60

6. Claim 34 ..................................................................................... 60

7. Claim 35 ..................................................................................... 61

8. Claim 36 ..................................................................................... 62

9. Claim 37 ..................................................................................... 6210. Claim 38 ..................................................................................... 63

11. Claim 39 ..................................................................................... 63

IV. CERTIFICATE OF APPELABILITY .......................................................... 63

V. CONCLUSION .............................................................................................. 64

Before the Court is the Petition for Writ of Habeas Corpus filed by Homer Roseberry, an Arizona death row inmate. (Doc. 32.) Respondents filed an answer to the petition and Roseberry filed a reply. (Docs. 45, 49.) For the reasons set forth below, and based on the Court's review of the briefings and the entire record herein, the petition is denied.

I. BACKGROUND

The Arizona Supreme Court, in State v. Roseberry, 210 Ariz. 360, 363, 111 P.3d 402, 405 (2005), summarized the facts underlying Roseberry's convictions and sentences as follows.

In 1997, Roseberry and his wife, Diane, met members of a marijuana-smuggling ring known as the Pembertons. In late 1998 and early 1999, Roseberry was paid by the Pembertons to transport marijuana in his motorhome from Arizona to Michigan.

In early October of 2000, Roseberry agreed to transport more than 1,000 pounds of marijuana. When Roseberry arrived in Phoenix to pick up the load, the Pembertons informed him that Fred Fottler would accompany him on the trip. Several large duffle bags of marijuana were then loaded into the motorhome.

On October 20, 2000, Roseberry set off from Phoenix. Pursuant to a scheme he devised with his friend Charles Dvoracek, Dvoracek traveled to Wickenburg, Arizona, where he was supposed to intercept and "steal" the motorhome and marijuana while Roseberry and Fottler were eating at a Denny's restaurant. In the early morning hours of October 21, 2000, Dvoracek parked his truck on the side of the road and waited for the motorhome to stop at Denny's. Instead of stopping at the restaurant, however, Roseberry drove back onto the highway and continued north toward his home in Nevada.

Dvoracek followed the motorhome, which Roseberry soon pulled over onto the shoulder of the road. As Dvoracek pulled in behind, he heard two pops. Roseberry stepped out of the motorhome and told Dvoracek that he had "shot the guy" the Pembertons had sent to accompany him on the drug run.

Roseberry shot Fottler in the back of the head. Fottler was still making gurglingnoises, so Roseberry returned to the motorhome and shot him again. Roseberry and Dvoracek then wrapped Fottler's body in a blanket and dumped it into a gully on the side of the road.

As Roseberry drove through Arizona, he threw his gun out the window of the motorhome. Roseberry and Dvoracek stopped in Kingman, Arizona, to remove other evidence of the crime. They took a blood-stained sheet from the motorhome and threw it over a fence. They also buried Fottler's wallet and moved one of the duffle bags of marijuana from the motorhome to Dvoracek's truck so Dvoracek could sell the drugs to raise money in case it became necessary to bail Roseberry out of jail.

They arrived at Roseberry's home in Henderson, Nevada, on October 21, 2000, and put the motorhome and drugs into storage. Later that day, Roseberry confided to his wife that he killed Fottler so he could steal the marijuana and sell it himself. Roseberry told her that his story was going to be that "some Mexicans" with guns were in the motorhome and had killed Fottler while Roseberry was out of the vehicle.

Diane Roseberry called her brother, Otis Bowman, and asked him to fly in from Indiana, which he did on October 22, 2000. Two drug dealers flew in with Bowman. They agreed to purchase about 300 pounds of marijuana, which Bowman later transported to Ohio in Roseberry's motorhome. Roseberry and Dvoracek split the money from the sale.

Fottler's body was soon discovered. Investigative leads from United States Customs agents led Yavapai County Deputy Sheriffs to Roseberry, whose motorhome the customs agents had observed while surveilling a Tucson stash house.

Roseberry was tried and convicted of first-degree murder and drug offenses. The jury then determined that the pecuniary gain aggravating factor, A.R.S. § 13-703(F)(5), had been proved. In the penalty phase, held six months later before the same jury, Roseberry presented mitigation evidence in support of five statutory and five non-statutory mitigating circumstances. The jury determined that the mitigation evidence was not sufficiently substantial to warrant leniency and returned a verdict of death for the murder. The court sentenced Roseberry to death.

On direct appeal, the Arizona Supreme Court affirmed the convictions and sentences. Roseberry, 210 Ariz. 360, 111 P.3d 402. Roseberry filed a petition for post-conviction relief ("PCR") in April 2012. The trial court denied the petition and the Arizona Supreme Court denied Roseberry's petition for review. State v. Roseberry (Roseberry II), 237 Ariz. 507, 353 P.3d 847 (2015).

On December 22, 2015, Roseberry filed a sealed petition for writ of habeas corpus in this Court. (Doc. 23.) He filed an unsealed petition on August 8, 2016. (Doc. 32.) On January 20, 2018, the Court denied in part and granted in part Roseberry's request for evidentiary development. (Doc. 70.)

II. AEDPA

...