FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL EZRA RHOADES, No. 07-99023
Petitioner-Appellant,
D.C. No.
v.
JEFF HENRY, of the IMSI, CV-93-00156-S-EJL
District of Idaho,
Department of Corrections State of Boise
Idaho,*
OPINION
Respondent-Appellee.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Submission Deferred March 8, 2010
Resubmitted July 15, 2010
Seattle, Washington
Filed July 15, 2010
Before: Pamela Ann Rymer, Ronald M. Gould and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Rymer
*Jeff Henry is substituted for his predecessor, Arvon J. Arave, Depart-
ment of Corrections State of Idaho. Fed. R. App. P. 43(c)(2).
10255
10258 RHOADES v. HENRY
COUNSEL
Oliver W. Loewy, Federal Defender Services of Idaho, Mos-
cow, Idaho; Dennis A. Benjamin, Nevin, Benjamin, McKay
& Bartlett, Boise, Idaho, for the petitioner-appellant.
L. LaMont Anderson, Deputy Attorney General, Boise, Idaho,
for the respondent-appellee.
OPINION
RYMER, Circuit Judge:
Paul Ezra Rhoades was convicted by an Idaho jury of the
1987 first degree murder, first degree kidnapping, robbery,
rape, and infamous crime against nature of Susan Michel-
bacher. The trial court sentenced him to death on his convic-
tions for first degree murder and first degree kidnapping; and
the Idaho Supreme Court upheld his conviction, sentence, and
denial of post-conviction relief. State v. Rhoades (Michel-
bacher), 822 P.2d 960 (Idaho 1991). The district court denied
his petition for habeas corpus. Rhoades appealed, and we pre-
viously affirmed denial of relief on the conviction, Rhoades
v. Henry (Michelbacher), 598 F.3d 495 (9th Cir. 2010). How-
ever, because a post-conviction petition asking the Idaho
Supreme Court to apply Ring v. Arizona, 536 U.S. 584
(2002), retroactively was then pending before the Idaho
Supreme Court, we deferred submission on penalty phase
issues. That court has now ruled, upholding the sentence.
Rhoades v. State, ___ P.3d ___, 2010 WL 937272 (Idaho
Mar. 17, 2010), reh’g denied (June 4, 2010). Accordingly, we
now turn to the issues on which Rhoades seeks to overturn the
district court’s judgment that his sentence was not constitu-
tionally infirm. We see no error, and affirm.
I
The facts are set out in the Michelbacher opinion, but in
brief, Michelbacher was a teacher who left for school around
RHOADES v. HENRY 10259
6:30 in the morning of March 19, 1987, to make lesson plans
for a substitute and to return home because she wasn’t feeling
well. She made it to school, but not home. Around 7:30 a.m.
a van that looked like Michelbacher’s, with Rhoades as a pas-
senger, nearly collided with Valerie Stapf in a parking lot. It
backed off and went toward the First Interstate Bank where
Michelbacher cashed a check for $1000 at the drive-in win-
dow when it opened at 8:30 a.m. A few minutes later she
cashed another $1000 check at another branch. Around 10:00
a.m. Susan Browning, who lived less than a mile from where
Michelbacher’s body was found, saw Michelbacher’s van
enter her driveway then back out. She identified Rhoades as
the driver. Others saw Rhoades in the van later in the day.
Michelbacher’s body was found on March 21 in a remote,
rural area. She had been raped, shot nine times — once while
standing and the rest while lying down — and her attacker
had ejaculated into her mouth when she was either almost
dead or already dead. Rhoades could not be excluded as the
semen donor, or as the source of head and pubic hair retrieved
from her body. Rhoades was seen with a large amount of cash
after Michelbacher’s death, and he went to Nevada to gamble.
A Ford LTD stolen from Rhoades’s mother was spotted on
the median of a highway not far from Wells, Nevada. A .38
caliber revolver was found lying on the ground outside the
driver’s door; it was the gun used to fire the bullets that killed
Michelbacher. Rhoades was tracked to the 4 Way Casino and
arrested. When one of the Idaho police officers at the scene
remarked that if he had arrested Rhoades earlier, maybe the
victim would be alive, Rhoades responded “I did it.”
After the jury found Rhoades guilty on all counts, the trial
court held a sentencing hearing. It concluded that the mitigat-
ing factors did not outweigh any of the statutory aggravating
circumstances that it found. Accordingly, the judge sentenced
Rhoades to death for first degree murder and for first degree
10260 RHOADES v. HENRY
kidnapping. It imposed fixed life prison sentences for the
remaining crimes.
The Idaho Supreme Court upheld his sentence and denial
of post-conviction relief. State v. Rhoades (Michelbacher),
822 P.2d 960 (Idaho 1991). Rhoades filed for habeas relief in
federal court before the effective date of the Antiterrorism and
Effective Death Penalty Act (AEDPA), so this petition is gov-
erned by pre-AEDPA law.
While his federal petition was pending, Rhoades filed sev-
eral successive petitions in state court. One claimed that he
was entitled to jury sentencing based on Ring v. Arizona, 536
U.S. 584 (2002). Following dismissal by the Idaho Supreme
Court based on Schriro v. Summerlin, 542 U.S. 348 (2004),
Rhoades petitioned for a writ of certiorari to the United States
Supreme Court. The petition was granted and the case
remanded for further consideration in light of Danforth v.
Minnesota, 552 U.S. 264 (2008), which indicated that states
may decide to apply Ring retroactively to state post-
conviction proceedings. We deferred ruling on penalty phase
issues until this issue was resolved. On March 17, 2010, the
Idaho Supreme Court “adopt[ed] Teague [v. Lane, 489 U.S.
288 (1989)], conclude[d] that Ring is not retroactive under
Idaho law and affirm[ed] the district courts’ denial of
[Rhoades’s] requests for relief.” Rhoades v. State, 2010 WL
937272 at *11. Accordingly, we now address Rhoades’s
claims with respect to his sentence.
II
Rhoades claims that his trial counsel rendered ineffective
assistance in failing to investigate, develop, and present men-
tal state issues, in particular, with respect to obtaining assis-
tance of mental health experts, seeking meaningful mitigation
investigation assistance, and otherwise familiarizing them-
selves with Rhoades’s background. For example, he argues,
counsel furnished no social history to the expert they did
RHOADES v. HENRY 10261
have, they were either unaware of incest within Rhoades’s
family or did not think it was important, and they didn’t have
specific information about Rhoades’s drug use and didn’t
believe it was germane. In addition, he submits that the dis-
trict court abused its discretion in denying him an evidentiary
hearing on the issue.
A
The trial court appointed Stephen Hart and John Radin to
represent Rhoades. Radin’s partner, Russell Webb, also
worked on the case. Webb and Radin were primarily responsi-
ble for handling mental health issues.
Webb’s 2007 declaration indicates that he hired Dr. Ken-
neth Ash before trial to look into a potential insanity defense.
Counsel had very little social history information about
Rhoades to give Ash, but did furnish police reports, informa-
tion from Rhoades’s school transcript, and their investigator’s
initial report. Dr. Ash examined Rhoades, and concluded
there was no basis for an insanity defense.
Radin was deposed in 1996 in the federal proceeding. He
indicated that counsel contacted Ash in part because they
were aware of Rhoades’s drug use, and Ash had some special-
ity in this field. He said the family was aware of Rhoades’s
drug use, but not the extent of it. Counsel did not focus on
drug use at trial or sentencing as they did not think it would
help their actual innocence defense. In Radin’s view, the
focus didn’t shift between the guilt phase and sentencing
because they continued to maintain innocence. They made a
tactical decision that Ash could hurt more than help given
counsel’s wish to preserve legal issues about the state’s repeal
of an insanity defense. However, they hired an investigator to
prepare a presentence report. Radin learned about allegations
of incest between Rhoades and his sister through their investi-
gator’s presentence report; Rhoades never mentioned it him-
10262 RHOADES v. HENRY
self. He didn’t dwell on it at sentencing because Rhoades’s
family was in the courtroom.
Hart also was deposed in 1996. As he was in charge of
learning about Rhoades’s background, he spent a lot of time
talking to family members and had some contact with neigh-
bors. Hart stated that given twenty-twenty hindsight, he might
approach the problem of psychological testing, drug use, and
abnormal rearing differently today than at the time.1 On the
one hand, he said this wasn’t a conscious decision because
they didn’t perceive those things as being mitigating; on the
other hand, he stated they had made a conscious decision not
to get into mental issues because they were following the
same case approach (actual innocence) throughout.
Counsel had a presentence report prepared that included a
statement from Rhoades professing his innocence; a list of his
prior arrests and how they were resolved, along with
Rhoades’s explanation for some of them; a brief description
of family history, education, employment, and relationships;
and an evaluation. It highlighted Rhoades’s positive character
traits, in particular his non-aggressive nature and trustworthi-
ness with females. It addressed his childhood polio and how
he had been discriminated against due to his family’s reputa-
tion. The report mentioned Rhoades’s use of alcohol and
drugs.
The state also submitted a presentence report describing
Rhoades’s criminal record, family information, interests and
activities, education, and employment. It covered his child-
hood polio and indicated that he sometimes had to fight
1
We note that “it is all too easy” for counsel or a court “to conclude that
a particular act or omission of counsel was unreasonable in the harsh light
of hindsight.” Bell v. Cone, 535 U.S. 685, 702 (2002). That is why the
Court has repeatedly cautioned that courts must indulge a “strong pre-
sumption” that counsel’s conduct falls within the wide range of reasonable
professional assistance. Id.; see Strickland v. Washington, 466 U.S. 668,
689 (1984).
RHOADES v. HENRY 10263
because his name was Rhoades, he was not aggressive toward
people or animals, he often babysat his nieces and nephews,
and he was a skilled sheetrocker. The state’s report also noted
that Rhoades had applied to the Army and Marine Corps but
had been turned down due to polio. In addition, it included a
section on Rhoades’s health, reciting that he denied having
any mental or emotional problems, has a balance problem as
a result of polio, and had used and abused drugs of all kinds
for 19 years. The presentence officer expressed his opinion
that a psychological evaluation was warranted. Finally, the
state’s report indicated that collateral contacts and family
members described Rhoades’s youth and early adulthood as
“comparatively normal.”
Before the sentencing hearing, the trial judge followed up
on the state presentence officer’s recommendation by asking
whether Rhoades objected to psychological testing. Webb
strongly opposed it, noting counsels’ concern that there was
another trial coming up, and that whatever was done in this
sentencing would potentially affect that matter. When the
judge nevertheless arranged for a local expert to evaluate
Rhoades, Webb again expressed strong opposition. This time
he mentioned the possible interaction with Idaho’s repeal of
the insanity defense, and the Fifth Amendment implications
given the unusual time frame of another murder trial in the
offing. The court backed off.
At the sentencing hearing, the state called no witnesses and
Rhoades called twenty (his mother, father, two sisters,
brother, sister-in-law, two aunts, three uncles, one cousin, and
eight jail officials). Several noted the difficulty of Rhoades’s
childhood polio and foot surgeries, and how he was left
poorly coordinated. Many claimed he could not be guilty of
the crimes charged. Rhoades’s mother said she knew Rhoades
had used drugs and maybe had sold them; his brother testified
that he knew Rhoades was on drugs. A few witnesses dis-
cussed how Rhoades was a good worker, and the jailors testi-
fied that he was a well-behaved and helpful inmate.
10264 RHOADES v. HENRY
Radin’s closing argument outlined why the state had failed
to prove the aggravating factors beyond a reasonable doubt,
and talked about Rhoades’s gentle nature and trustworthiness
with women; his lack of prior felonies and minor record; lin-
gering doubts as to guilt; difficulties resulting from polio and
surgeries; his family’s poverty; his lack of education; his
capacity for rehabilitation and potential to be a model pris-
oner; his redeeming qualities; and evidence that Rhoades fell
into a pattern of drug and alcohol abuse.
Under Idaho law at the time of Rhoades’s sentencing, when
a person is convicted of first degree murder the judge deter-
mines whether at least one of ten statutory aggravating cir-
cumstances has been established beyond a reasonable doubt.
See Idaho Code § 18-4004 (1988); id. § 19-2515. If at least
one circumstance is found, the court “shall sentence the
defendant to death unless the court finds that mitigating cir-
cumstances which may be presented outweigh the gravity of
any aggravating circumstance found and make imposition of
death unjust.” Id. § 19-2515(c). The same mitigation inquiry
is made in the case of first degree kidnapping if the judge
finds, beyond a reasonable doubt, at least one of five statutory
aggravating circumstances. See id. §§ 18-4504, 4505.
The sentencing judge made extensive findings. Among
other things, he found that Rhoades had a limited education
but was relatively intelligent; his family life was normal,
though he was subject to abuse or rejection in other settings
because he was a member of the Rhoades family and had
residual effects from polio, which he substantially overcame;
he was a skilled sheetrocker with a good employment history;
he used alcohol and drugs to excess; he had been a coopera-
tive prisoner; he had no prior significant record; and he was
a trusted babysitter and was trusted by women who knew him.
On the aggravating side, the judge found that Rhoades’s
crimes were extremely wicked, shockingly evil, and designed
to inflict a high degree of physical and mental pain with utter
RHOADES v. HENRY 10265
indifference to Michelbacher’s suffering. As the judge
explained:
Defendant repeatedly and brutally shot Mrs. Michel-
bacher as she struggled to escape. The shooting
required defendant to reload his six shot .38 caliber
revolver at least once. Defendant then senselessly
and needlessly stood over his victim and shot her as
he walked beside her while she laid on the ground.
Then, after having shot his victim eight times, turned
her over and shot her in the middle of her chest at
close range. Thereafter, as she lay dying, he some-
how mounted, straddled or laid himself on the face,
shoulders and chest of his victim, inserting his penis
into her mouth, and ejaculated.
After that, the judge observed, Rhoades appeared normal,
paid bills, entertained himself, and gambled with the spoils of
his crime.
The court found three aggravating factors on the murder
conviction beyond a reasonable doubt: (1) The murder was
especially heinous, atrocious or cruel, manifesting exceptional
depravity, in that Rhoades repeatedly shot Michelbacher as
she struggled to escape, requiring him to reload his revolver,
then senselessly stood over his victim and shot her as she lay
on the ground, then after having shot Michelbacher eight
times, turned her over and shot her in the middle of her chest
at close range, and thereafter, inserted his penis into her
mouth and ejaculated. He left her to die. While she was alive
Rhoades raped her. Idaho Code § 19-2515(g)(5). (2) Michel-
bacher’s murder was by the infliction of numerous gun shot
wounds, including the final shot to the middle of her chest,
accompanied with the specific intent to cause death. It was
murder of the first degree. Id. § 19-2521(g)(7). (3) The cir-
cumstances of the Michelbacher murder and related crimes
10266 RHOADES v. HENRY
show a propensity to commit murder which will probably
constitute a continuing threat to society. Id. § 19-2515(g)(8).2
With respect to the kidnapping conviction, the court found
three aggravating circumstances beyond a reasonable doubt:
(1) Rhoades’s conduct from 7:30 a.m. on March 19 when he
kidnapped Michelbacher until her death later that same day,
including subjecting the victim to rape and related sexual
abuse, shows the intentional infliction of grievous mental and
physical injury. Idaho Code § 18-4505(6)(a). (2) By kidnap-
ping the victim and conducting himself as he did, Rhoades
knowingly created a great risk of death which ultimately
occurred under tragic circumstances. Id. § 18-4505(6)(b). (3)
The kidnapping and associated actions could only have terror-
ized, and caused severe mental anguish and horror to Michel-
bacher during the last hours of her life. She was not released
unharmed. Thus, the kidnapping was especially heinous, atro-
cious, cruel and manifested exceptional depravity. Id. § 18-
4505(6)(d). The trial court found each aggravating circum-
stance, standing alone, would be sufficient to impose the
death penalty, i.e., after weighing all the facts and circum-
stances, the mitigating factors did not outweigh the gravity of
any one of them.
In the district court Rhoades submitted a 1000-page factual
proffer that contained declarations from Craig Beaver, Ph.D.,
a neuropsychologist, Pablo Stewart, M.D., a psychiatrist and
neurologist, Rhoades’s Bingham County attorney, two police
officers, various members of his family and several friends;
medical records for Rhoades and his family; criminal records
for his father and other members of the family; his elementary
school transcript; and a family tree depicting drug and alcohol
abuse, suicide, intelligence, mental health, and criminal con-
victions.
2
The court also indicated that the crime exhibits utter disregard for
human life, which satisfies factor (g)(6), but made no formal finding to
avoid possible overlapping of statutory aggravating factors.
RHOADES v. HENRY 10267
Dr. Beaver’s declaration, which synthesized the other dec-
larations as well as the records in Rhoades’s proffer, indicates
that Rhoades’s father was intellectually deficient, physically
abused, and suicidal before marrying his mother; there was
extensive alcoholism and drug addiction in Rhoades’s imme-
diate and extended family; reportedly Rhoades’s parents beat
up at least some of their children and there was physical and
emotional abuse between his father and mother; Rhoades’s
sister was sexually abused by cousins and an uncle, and there
were reports of “unhealthy sexual behaviors” among
Rhoades’s sisters and extended family; one of Rhoades’s sis-
ters told another sister that she had been sexually active with
Rhoades for years, and Rhoades entered into a sexual relation-
ship with his aunt after his uncle committed suicide; and his
family had an extensive criminal history. Beaver further
stated that “[t]he alcoholism and suicides seen in the past gen-
erations of [Rhoades’s] family very likely play a genetic role
in the emotional and mental health of [Rhoades] and his sib-
lings.” His report concluded that Rhoades’s family context
deprived him of normal development; his own medical prob-
lems further limited his potential as a human being; it was not
surprising that he had chemical dependency issues and knew
little about normal sexual and interpersonal relationships; his
drug addiction was overdetermined; he was genetically loaded
for substance abuse; his chronic use of methamphetamine
“may well have damaged his brain in areas critical to impulse
control and the ability to think clearly in high pressured situa-
tions”; and “further neurophysychological testing has always
been necessary to fully and adequately assess Paul Rhoades.”
Based on Beaver’s declaration and other items in the prof-
fer, Dr. Stewart provided a “working assessment regarding
psychiatric findings.” He wrote that Rhoades was at signifi-
cant risk of developing a substance abuse disorder from an
early age; Rhoades inherited the diseases of alcoholism and
drug abuse; he was born into a family that suffered from
major mental illness and neuropsychological impairment;
multiple members of Rhoades’s family have been institution-
10268 RHOADES v. HENRY
alized, have been determined to have sub-average intelli-
gence, and have committed suicide — which puts Rhoades “at
substantial risk of developing his own mental health prob-
lems, including mood disorders, cognitive dysfunction, sub-
stance abuse, and suicidality”; Rhoades “may have been born
with some mental deficiencies”; he was placed in special edu-
cation classes in school; Rhoades’s family is overwhelmingly
positive for mental illness, which “places him at severe risk
for developing his own mental health conditions”; and
Rhoades’s history, including polio, is “extremely suggestive
of his suffering from post Traumatic Stress Disorder that had
a childhood onset” even though the requirements of the DSM-
IV are not satisfied in all aspects. Stewart’s “working assess-
ment” listed diagnoses of Posttraumatic Stress Disorder, Cog-
nitive Disorder NOS, Substance Induced Mood Disorder, and
Substance Induced Psychotic Disorder, without further elabo-
ration.
B
Rhoades contends that his counsel was constitutionally
ineffective for having failed to uncover the mitigating evi-
dence exemplified in his proffer. The district court found that
Rhoades could not establish deficient performance in light of
counsels’ concerns about the extent to which their expert
would help or hurt and the possibility of developing adverse
information that could have been used in Rhoades’s pending
murder cases. It also concluded that Rhoades could not estab-
lish prejudice because the aggravated nature of these crimes
was too strong, and new mitigating evidence added too little,
to create a reasonable probability of a different outcome.
[1] “To prevail on this claim, [Rhoades] must meet both
the deficient performance and prejudice prongs of Strick-
land.” Wong v. Belmontes, 130 S. Ct. 383, 384 (2009) (per
curiam). Accordingly, if Rhoades cannot meet “the highly
demanding and heavy burden of establishing actual preju-
dice,” Allen v. Woodford, 395 F.3d 979, 1000 (9th Cir. 2005)
RHOADES v. HENRY 10269
(internal quotation marks and brackets omitted), it is unneces-
sary to determine whether Rhoades’s counsel’s performance
was deficient, see Strickland, 466 U.S. at 697 (“If it is easier
to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice . . . that course should be followed.”).
This is the course that we follow.
[2] To demonstrate actual prejudice under Strickland, a
“ ‘defendant must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probabil-
ity is a probability sufficient to undermine confidence in the
outcome.’ ” Wiggins v. Smith, 539 U.S. 510, 534 (2003)
(quoting Strickland, 466 U.S. at 694). “To assess that proba-
bility, we consider the totality of the available mitigation evi-
dence — both that adduced at trial, and the evidence adduced
in the habeas proceeding — and reweigh it against the evi-
dence in aggravation.” Porter v. McCollum, 130 S. Ct. 447,
453-54 (2009) (per curiam) (internal quotation marks and
brackets omitted). Finally, “[i]n evaluating prejudice,”
Rhoades’s “ineffective assistance claims based on a duty to
investigate must be considered in light of the strength of the
government’s case.” Rios v. Rocha, 299 F.3d 796, 808-09 (9th
Cir. 2002) (internal quotation marks omitted).
[3] We agree with the district court’s analysis. The crimes
were especially cruel, as the trial court found and for the rea-
sons it gave. The state court was also aware of mitigating cir-
cumstances that were individual to Rhoades. For sure, they
were not as detailed or extensive as in the proffer, but the dif-
ference between what Rhoades’s counsel investigated and
presented, and what they could have investigated and pre-
sented, is not so pronounced that the new evidence would
have outweighed any one of the aggravating circumstances.
As the district court noted, even the proffer has no persuasive
evidence that Rhoades was himself physically or violently
abused as a child, abandoned, placed within the state’s cus-
tody, or otherwise institutionalized. Further, as the court
10270 RHOADES v. HENRY
found, despite the passage of twenty years, the defense
experts do not conclusively fill in the blanks about Rhoades’s
mental or emotional state. We considered the same proffer
and expert submissions in the Baldwin case, and conclude that
they have no greater effect here for the same reasons we
explained there. See Rhoades v. Henry (Baldwin), 596 F.3d
1170, 1191-95 (9th Cir. 2010). Accordingly, Rhoades cannot
satisfy the prejudice prong of Strickland. Therefore, his claim
of ineffective assistance of counsel based on the failure to
investigate and present mental state issues fails.
C
Rhoades’s assertion that he was entitled to an evidentiary
hearing is unsupported by argument. Not only does this waive
the issue, but Rhoades points to no additional evidence that
would be presented if one were held. We will not find an
abuse of discretion in these circumstances.
III
[4] The trial court imposed the death sentence for the
crime of first degree kidnapping in addition to the death sen-
tence imposed for first degree murder. Neither the circum-
stances found by the sentencing judge, nor any listed in the
Idaho statute, requires death.
[5] As a result, Rhoades contends his sentence on the kid-
napping count is unconstitutional for several related reasons.
First, it violates the Eighth Amendment because it is grossly
disproportionate to the offense under Coker v. Georgia, 433
U.S. 584 (1977) (so holding with respect to rape of an adult
woman), and Enmund v. Florida, 458 U.S. 782 (1982) (so
holding with respect to aiding and abetting a felony that
results in death where the defendant did not himself kill,
attempt to kill, or intend that killing take place). He points out
that death was not an element of the crime, or an aggravating
circumstance, and asserts that the trial court did not consider
RHOADES v. HENRY 10271
Michelbacher’s death to be an aggravating circumstance in
imposing the death sentence. Also, Rhoades complains that
the sentencing judge double counted the fact of death, con-
trary to Idaho law. We considered, and rejected, the same
arguments in the Baldwin case, which we follow in this case.
Rhoades (Baldwin), 596 F.3d at 1195-96. In short, violations
of state law are not cognizable on federal habeas review.
Death did occur here, unlike Coker, Eberheart v. Georgia,
433 U.S. 917 (1977), and Enmund. The trial court’s summa-
tion left no doubt that Rhoades intended to take Michel-
bacher’s life and took it in an especially atrocious way. See
Kennedy v. Louisiana, 128 S. Ct. 2641, 2646 (2009) (holding
that the Constitution bars imposition of the death penalty for
the rape of a child “where the crime did not result, and was
not intended to result, in death of the victim”).
[6] Further, Rhoades submits that he was unlawfully sen-
tenced to death where the victim was an adult and the aggra-
vating circumstances allow for death to be imposed for as
little as a “mental injury” or the mere “risk” of harm. He also
contends that the statutory aggravators found by the trial court
do not sufficiently narrow the class of individuals eligible for
the death penalty because they permit the imposition of death
for a crime less than murder. This retreads his basic Coker
argument, and fails for the reasons set out in Rhoades (Bal-
dwin). 596 F.3d at 1196. Beyond this, Rhoades simply under-
states the statute, which requires “grievous” mental or
physical injury, Idaho Code § 18-4505(6)(a), and a knowingly
created “great” risk of “death,” id. § 18-4505(6)(b). In any
event, the trial court here did not find an unadorned “mental
injury” or just a “risk” of harm, but found that Rhoades’s con-
duct subjected Michelbacher to grievous mental injury and to
a great risk of death that in fact ensued. Thus, we have no
occasion to be concerned with some other application that
might be to a non-grievous mental injury or to a non-great
risk of death.
[7] Finally, Rhoades maintains that the aggravating cir-
cumstances relied on by the sentencing court were unsup-
10272 RHOADES v. HENRY
ported by the evidence. So long as any single aggravator is
supported, constitutional infirmities as to remaining ones are
harmless. See Pizzuto v. Arave, 280 F.3d 949, 970-71 (9th Cir.
2002). Accordingly, we start with factor (a), and determine
whether any rational trier of fact could have found that
Rhoades subjected Michelbacher to torture or the intentional
infliction of grievous mental or physical injury. See Lewis v.
Jeffers, 497 U.S. 764, 781 (1990) (applying the Jackson v.
Virginia, 443 U.S. 307 (1979) standard to federal habeas
review of a state court’s finding of statutory aggravating fac-
tors).
[8] As Rhoades sees it, there is no evidence that Michelb-
acher suffered grievous mental injury while she was in the
van, nor may the rape or shooting be used to establish the
grievous physical injury component of the aggravator because
the killing itself would be the basis of a felony-murder charge
that, in turn, could be the basis for a death sentence if the
defendant had a specific intent to kill. However, in our view,
a rational trier of fact could find that Rhoades intentionally
inflicted grievous mental or physical harm. Michelbacher was
a random kidnapping victim. She had abrasions on her mouth
and chin caused by sliding across pavement or something like
it. Rhoades raped Michelbacher and then shot at her. The first
shot probably went into her left femur, fracturing it. After she
was lying down Rhoades shot her eight more times. Rhoades
also repeats his argument that Idaho law does not allow
double-counting, but we do not reach this question because it
is a matter of state law.
[9] After viewing the evidence in the light most favorable
to the prosecution, we conclude that any rational fact-finder
could have found aggravating factor (a) beyond a reasonable
doubt. Given sufficiency of the evidence on this aggravator,
we have no need to consider the others.
IV
Section 19-2719(3) of the Idaho Code requires a capital
defendant to raise all known legal or factual challenges to his
RHOADES v. HENRY 10273
conviction or sentence in one application for post-conviction
relief within forty-two days of sentencing. Rhoades submits
that these requirements violate his rights to equal protection
and due process. However, we resolved this issue in Hoffman
v. Arave, 236 F.3d 523 (9th Cir. 2001) (affirming as to all
challenges to Idaho Code § 19-2719 except to the extent it
applied to ineffective assistance claims when no new counsel
had yet been appointed).
V
[10] One issue remains that is not certified for appeal.3 In
it, Rhoades claims that victim impact statements of the sort
made in this case by Michelbacher’s husband — expressing
his desire to see justice is done — are unconstitutional under
Booth v. Maryland, 482 U.S. 496 (1987). Assuming that rea-
sonable jurists would find the point debatable, see Slack v.
McDaniel, 529 U.S. 473, 484 (2000), and that a COA should
issue, we reach the same conclusion on the merits here as in
the Baldwin case. Rhoades (Baldwin), 596 F.3d at 1197-98.
In short, Albert Michelbacher’s statement essentially
expresses an opinion of the crime, which implicates the prong
of Booth that survived Payne v. Tennessee, 501 U.S. 808, 830
n.2 (1991). However, sentencing in this case was to the court,
not to a jury, and we presume that the judge knew and applied
the law. As a result, there is no Booth error.
DENIAL OF RELIEF AS TO SENTENCE AFFIRMED.
3
An appeal may not be taken unless the district judge or we issue a Cer-
tificate of Appealability (COA). 28 U.S.C. § 2253(c)(1). A COA may
issue “only if the applicant has made a substantial showing of the denial
of a constitutional right.” Id. § 2253(c)(2).