Walden v. Shinn

• Citation: 990 F.3d 1183
• Decision Date: 12 March 2021
• Docket Number: No. 08-99012,08-99012
• Parties: Robert Lee WALDEN, Petitioner-Appellant, v. David SHINN, Director, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

990 F.3d 1183

Robert Lee WALDEN, Petitioner-Appellant,

v.David SHINN, Director, Respondent-Appellee.

No. 08-99012

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 15, 2020 San Francisco, California

Filed March 12, 2021

Stan S. Molever (argued), Leticia Marquez and Kori Lorick, Assistant Federal Public Defenders; Jon M. Sands, Federal Public Defender; Office of the Federal Public Defender, Tucson, Arizona; for Petitioner-Appellant.

Lacey Stover Gard (argued), Chief Counsel, Capital Litigation Section; Mark Brnovich, Attorney General, Office of the Attorney General, Tucson, Arizona; for Respondent-Appellee.

Before: Sidney R. Thomas, Chief Judge, and Jay S. Bybee and Sandra S. Ikuta, Circuit Judges.

THOMAS, Chief Judge:

Robert Lee Walden was convicted of rape and murder by an Arizona jury and was sentenced to death by the presiding state court judge. Walden appeals the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review the district court's denial of habeas relief de novo, see Dixon v. Ryan , 932 F.3d 789, 795 (9th Cir. 2019), and we affirm.

I

The factual and procedural history of this case spans nearly three decades.¹ A summary of the history relevant to resolving the five claims before us follows.

A

The morning of May 4, 1991, at an apartment complex in Tucson, Arizona, Walden forced Vicki Blanar into an empty community laundry room at knife point; there, he forcibly removed her clothing, fondled her breasts, and raped her while holding his knife against her neck. See Walden , 905 P.2d at 982. During and after the assault, he repeatedly threatened to kill her. See id.

Not long after raping Blanar and at a nearby apartment complex during the afternoon of May 15, Walden—uniformed in a red shirt and blue pants—tricked Kristina Velasco into allowing him into her apartment, where she lived alone, by claiming he was there to perform maintenance work. See id. ; see also id. at 984–85 (noting that the Blanar and Velasco attacks "were in the same general area"). Once inside, he attacked her, and a struggle followed. See id. at 982. Walden attempted, but failed, to wrap both a telephone and hair dryer cord around Velasco's neck. See id. He repeatedly threatened to kill Velasco if she screamed or continued to resist. See id. (noting that Walden told Velasco, "I'm going to kill you. I can do it," when she tried to escape). After dragging Velasco to her bedroom, Walden used a telephone cord to tie her arms behind her back. See id. He then blindfolded and gagged her, fondled her breasts, pulled off her shoes and jeans, digitally penetrated her, and had forcible intercourse with her. See id. Afterward, he ran an object down her back, said it was a knife, and threatened to kill her if she reported the rape. See id. at 982–83.

About a month later, on June 13 between 1:30 and 2:30 p.m., Walden raped and killed Miguela Burhans in her bedroom. See id. at 983. Burhans was home alone in an apartment building "next to the one where Velasco ... was assaulted," Walden v. Schriro (Walden II ), No. CV 99-559-TUC-RCC, 2008 WL 2026217, at *2 (D. Ariz. May 9, 2008), and "in the same general area" as the Blanar attack. Walden , 905 P.2d at 985. Upon arriving home, Burhans's husband found his wife's body "face down" on their bedroom floor "in a pool of blood, unclothed from the waist down." Id. at 983. A knife sheath and blood stains were on the bed next to Burhans's body, and scattered throughout the bedroom were fragments of a broken clay table lamp that had previously sat intact on the Burhans's nightstand.

Burhans "died from a combination of strangulation and two deep cuts to her throat that severed her carotid artery." Id. at 997. The stab wounds were not instantaneously fatal. Id. (noting that Burhans "would have been conscious for several minutes" after the stabbing). Blood "splattered around the room[ ] indicat[ed] that [Burhans] was moving about the room while injured." Id. The "electrical cord used to strangle her"—from the broken lamp—"was still around her neck," and her "hand was still intertwined in it, demonstrating that she had been conscious when Walden wrapped it around her neck and was struggling to loosen it." Id.

Compelling evidence led to Walden's arrest on June 27, 1991, and subsequent indictment on July 5 for all three attacks: During the spring and summer of 1991, Walden wore a red shirt and blue pants as his daily work uniform to conduct termite and pest control services in homes and apartments around Tucson. Id. at 982. Walden also lived "within blocks" of where Velasco and Burhans were assaulted. Id. at 985. Most significantly, fingerprint evidence tied Walden to both the Velasco and Burhans crime scenes, while identification evidence pointed to Walden as the perpetrator of all three attacks. Id. at 983, 985–86. Several weeks after their respective assaults, Blanar and Velasco each selected Walden's photo out of the same six-person lineup. Not quite a month after the murder, Elaine Jordan, who had visited another resident at Burhans's complex on June 13, identified Walden as one of two men whom she had seen at the complex around the time of the murder; she told law enforcement that this man was wearing what she thought was a maintenance uniform and carrying some sort of equipment that had a thin tube attached to it. See id. at 983, 985–86.

B

After being indicted on 14 counts, including one first-degree murder count, Walden made and lost two pre-trial motions that are at issue here.

First, Walden moved to sever the counts by victim under state law. He argued that the three attacks were too dissimilar to satisfy the standards for joinder under Arizona Rule of Criminal Procedure ("Rule") 13.3(a)(2) (permitting joinder where the offenses were "based on the same conduct" or "otherwise connected together in their commission") and Rule 13.3(a)(3) (permitting joinder where the offenses were "alleged to have been a part of a common scheme or plan") and that he was, thus, entitled to severance as of right under Rule 13.4(b).² He further argued that severance was "necessary to promote a fair determination" of his guilt or innocence under Rule 13.4(a). The trial court denied severance, but instructed the jury to "decide each charge on the evidence and law applicable to it uninfluenced by [its] decision as to the other charges."

Second, Walden moved to suppress the identifications made by Blanar, Velasco, and Jordan, arguing that the police procedures used to obtain them were unduly suggestive and would prejudice any subsequent in-court identifications, in violation of due process. Walden faulted law enforcement for using a photo array that included individuals whose features differed materially from the victim's descriptions of Walden. Walden further contended that the police tainted the victims’ identifications by informing them that their assailant had been arrested after each had selected Walden's photo and by providing Velasco with an article about Walden's arrest for other sexual assaults and a homicide. Walden also sought to undermine Jordan's identification on the ground that she picked his photo only after having an off-the-record conversation with a detective.

After an evidentiary hearing, the trial court also denied this motion. The court concluded that the lineup photos were "responsibly chosen"; that it was "abundantly clear" that the victims’ identifications did not result from "any police activity," but were "instead the product of their painfully clear recollections of their experiences"; and that the police did not use "unlawful means" to obtain Jordan's identification. However, the court instructed the jury that it could not consider any in-court identification of Walden unless it determined "beyond a reasonable doubt" that the identification "was based upon the witness’ independent recollection of the defendant and that it was not derived from suggestive circumstances in the courtroom or any previous pretrial identification."

C

During Walden's trial in July 1992, the jury heard nine days of testimony. The State's evidence as to all three sets of counts was strong. Blanar and Velasco each confirmed her out-of-court identification of Walden and denied having any doubt that Walden raped her. See Walden , 905 P.2d at 985. In support of the Burhans's charges, Jordan identified Walden, likewise without "any doubt," as the maintenance man that she saw carrying blowing or spraying equipment at Burhans's complex around the time of the murder. Walden's boss and a coworker confirmed that Walden's company truck was outfitted with pest control equipment resembling the equipment that Jordan had described. The State also introduced expert fingerprint evidence that Walden's right ring finger matched a fingerprint lifted from one of the shoes that Velasco's attacker had pulled off her foot before raping her, and that a second print lifted from the same shoe matched Walden's right middle finger. The State introduced further expert fingerprint evidence that a print that police lifted from the nightstand in Burhans's bedroom matched Walden's left thumb.

Finally, in support of the Burhans counts, Dr. John Howard, the forensic pathologist who visited the crime scene and conducted the autopsy, testified at length regarding the extent of Burhans's injuries and the cause of her death: the "combined effects" of strangulation and two deep cuts to her throat by a sharp instrument, such as a knife, that severed her carotid artery. Dr. Howard explained these injuries with the aid of 19 crime scene and autopsy photos. As relevant to this appeal, Walden objected to the admission of these photos on undue prejudice grounds, given that he repeatedly offered to stipulate to Burhans's injuries and the cause of her death to avoid their admission. See id. at 989. The trial court nevertheless admitted some of the photos,...