Towery v. Schriro

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ROBERT CHARLES TOWERY,  No. 08-99022
Petitioner-Appellant, D.C. No.
v. 2:03-CV-00826-
DORA B. SCHRIRO, MHM
Respondent-Appellee. ORDER
AMENDING
 OPINION AND
DENYING
PETITION FOR
REHEARING AND
PETITION FOR
REHEARING EN
BANC AND
AMENDED
 OPINION

Appeal from the United States District Court
for the District of Arizona
Mary H. Murguia, District Judge, Presiding

Argued and Submitted
February 4, 2010—Pasadena, California

Filed September 22, 2010
Amended December 21, 2010

Before: Mary M. Schroeder, Raymond C. Fisher
and N. Randy Smith, Circuit Judges.

Opinion by Judge Fisher

20299
 TOWERY v. SCHRIRO 20303
COUNSEL

Daniel D. Maynard, Maynard, Cronin, Erickson, Curran &
Sparks, PLC, Phoenix, Arizona, for the petitioner-appellant.

Terry Goddard, Attorney General, Kent E. Cattani, Chief
Counsel, and Jon G. Anderson (argued), Assistant Attorney
General, Phoenix, Arizona, for the respondent-appellee.

ORDER

The opinion filed on September 22, 2010, slip op. 16067,
and appearing at 2010 WL 3665202, is AMENDED and the
amended opinion is filed concurrently with this Order.

With these amendments, the panel has voted to deny
Appellant’s petition for rehearing and petition for rehearing
en banc. The full court has been advised of the petition for
rehearing en banc and no judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.
Appellant’s petition for panel rehearing and petition for
rehearing en banc, filed October 6, 2010, are DENIED.

No further petitions for rehearing will be permitted.

OPINION

FISHER, Circuit Judge:

Robert Towery was convicted of first-degree murder,
armed robbery, first-degree burglary, kidnapping, theft and
attempted theft. He was sentenced to death. Towery’s habeas
petition raises numerous issues, but the district court certified
only one for appeal. We have jurisdiction under 28 U.S.C.
§ 2253(a) and affirm the district court’s denial of habeas cor-
20304 TOWERY v. SCHRIRO
pus on the certified claim. As discussed in Part II below, we
grant a certificate of appealability (COA) as to two other
claims, but hold that they also do not entitle Towery to habeas
relief.

I. Certified Issue: Prosecutorial Misconduct

The issue that the district court certified concerns whether
the prosecutor’s use of witness testimony for inconsistent pur-
poses constitutes misconduct that warrants reversal. In the
murder trial, the witness testified he overheard Towery refer
to a struggle with a victim who was an “old man.” In a previ-
ous trial in a different case, however, the same prosecutor had
elicited this testimony to prove that Towery committed an
unrelated robbery, not the murder at issue here. The Arizona
Supreme Court concluded that, even assuming the prosecutor
changed his mind in good faith as to which crime the over-
heard statement referred to, he committed misconduct by fail-
ing at least to alert the court that the first conviction was
based on problematic evidence. Without specifically address-
ing whether this misconduct constituted a due process viola-
tion, the Arizona Supreme Court held that any error was
harmless beyond a reasonable doubt. We hold that this harm-
less error determination was objectively reasonable, and
therefore habeas relief is not warranted.

A. Factual Background

Robert Towery lived with Randy Barker and John
Meacham in Scottsdale, Arizona, and shared his bedroom
with his girlfriend and her young daughter. As the Arizona
Supreme Court recognized, the case against Towery relied
largely on the testimony of Barker, who testified in exchange
for a reduced charge of second-degree murder. See State v.
Towery, 920 P.2d 290, 296-97 (Ariz. 1996). Unless otherwise
indicated, the following facts are based on Barker’s account.

On September 4, 1991, Barker and Towery agreed to rob
Mark Jones, whom Towery had previously met, at Jones’
 TOWERY v. SCHRIRO 20305
house. That evening, the two of them drove in Barker’s car to
a Denny’s Restaurant and from there took a taxi to be dropped
off in Jones’ neighborhood. They knocked on Jones’ door,
and Towery asked if they could use his telephone because
their vehicle had broken down. Towery said, “Do you remem-
ber me? I’m from R and D Automotive.”

After the two were let in, Barker pretended to make a tele-
phone call, while Towery pulled a gun out of his briefcase.
Towery told Jones that they were robbing him, both men put
gloves on and Barker handcuffed Jones. Over the course of
about two hours, Barker kept watch on Jones while Towery
collected about $1,200 in cash and loaded Jones’ car with
jewelry, electronics and other items.

Towery and Barker then led Jones to the master bedroom
at gunpoint, asking him whether he expected anyone soon.
Towery asked Jones whether he preferred to be tied up or to
be injected with a drug that would put him to sleep. Jones
chose the latter option and was laid face down on the bed.
Towery then tried several times to inject Jones with a large
veterinary syringe that Barker believed contained battery acid.

Believing Jones was pretending to have fallen asleep, Tow-
ery created a noose using a set of tie wraps from his briefcase
and began to strangle him. Jones did not struggle, but made
choking and gagging sounds. After removing the noose, Tow-
ery determined that Jones was not yet dead, made another
noose and repeated his previous action. Towery and Barker
then drove Jones’ car to the Denny’s to get Barker’s car,
unloaded the goods at their house and abandoned Jones’ car
in the parking lot of an apartment complex. A security guard
at the complex saw the men and later identified Towery in a
photo lineup. Jones’ body was discovered the next morning.

Towery testified and offered an alibi. He said he dropped
Barker off at the Denny’s and saw him get picked up by
someone else. Towery then drove Barker’s car to meet Tina
20306 TOWERY v. SCHRIRO
Collins at an adult book shop. Towery drove with Collins to
another parking lot, where they talked for about two hours.
Afterward, not finding Barker at their planned meeting spot,
Towery drove home. Barker arrived at the house with Jones’
car and property, and Towery helped him unload the goods
and dispose of the car. Towery also claimed that he bought
the stolen items that the police found in his possession from
Barker.

Collins’ videotaped deposition was admitted to corroborate
Towery’s story. She said they had first met a couple of weeks
earlier and arranged to meet on September 4. She did not talk
with Towery again until February 9, when she visited the
prison at the suggestion of a friend of hers who happened to
be visiting Towery’s cellmate. In his closing argument, the
prosecutor suggested that Collins had never met Towery prior
to the prison visit and fabricated her testimony to bolster his
alibi.

B. Procedural History

Towery and Barker were charged with first-degree murder,
armed robbery, first-degree burglary, kidnapping, theft and
attempted theft. After their trials were severed, the jury con-
victed Towery on all counts, and he was sentenced to death.

During the trial, Towery’s roommate John Meacham testi-
fied that on the morning after a large amount of property had
appeared in their house, he heard Towery say he was “having
a hard time with an old man so he had — he had a hard time
tying him up, so he had to knock him down.” Earlier, in
March 1992, six months after the murder and five months
before the murder trial, Towery was tried and convicted of an
unrelated armed robbery in a separate case, but prosecuted by
the same county attorney, John Ditsworth. In the robbery trial,
Ditsworth had elicited Meacham’s testimony that he heard
Towery say, “I tried to get this old man to do what I wanted
him to do, but he wouldn’t do it.” The parties agree that
 TOWERY v. SCHRIRO 20307
Meacham’s testimony in both trials referred to the same over-
heard statement. The same judge presided over both trials, but
Towery had different defense lawyers.

On automatic appeal, the Arizona Supreme Court affirmed
the murder conviction and death sentence. See Towery, 920
P.2d at 312. On the issue of Meacham’s testimony, the court
first ruled that judicial estoppel did not apply to bar the state
from taking inconsistent positions, because Meacham’s testi-
mony was a minor part of the robbery case. See id. at 306.
The court then considered whether the prosecutor had com-
mitted misconduct, noting Ditsworth’s explanation that he
came to the conclusion after the first trial that the overheard
statement was more likely made in reference to the murder.
See id. at 306 & n.15. The court reasoned that even assuming
the prosecutor had changed his mind in good faith, he com-
mitted misconduct by failing to give the court in the first case
any notice that testimony had wrongly been admitted. See id.
at 306.

The court decided, however, that under state law any error
would be harmless if it could “conclude beyond a reasonable
doubt that [the error] did not contribute to or affect the ver-
dict.” Id. at 307 (citing State v. Bible, 858 P.2d 1152, 1191,
1203 (Ariz. 1993)). The court noted that Towery’s lawyer on
cross-examination had elicited Meacham’s testimony that he
thought the overheard statement referred to a prior incident
and not the murder of Jones. The court concluded that “[a]ny
impeachment defense counsel would have obtained from hav-
ing known of the testimony in the prior trial was effectively
achieved,” and thus “the prosecutor’s misconduct did not
affect the verdict.” Id.

Towery filed a petition for post-conviction relief and a
motion to disqualify Judge Hendrix, who had presided over
both of his trials. Another judge denied the disqualification
motion, rejecting Towery’s claims of bias. Judge Hendrix
denied the petition, which raised due process, false evidence,
20308 TOWERY v. SCHRIRO
Confrontation Clause, ineffective assistance of counsel and
other claims. A different judge, Judge Keppel, denied Tow-
ery’s motion for rehearing of the petition. The Arizona
Supreme Court denied review except with regard to one issue
that has now been resolved and is not relevant to this appeal.
See State v. Towery, 64 P.3d 828, 830 (Ariz. 2003) (holding
that the federal constitutional right to have a jury decide
whether aggravating circumstances exist in capital cases does
not apply retroactively).

In 2003, Towery filed a petition for a writ of habeas corpus
in the federal district court for the district of Arizona, raising
eight claims. On the prosecutorial misconduct issue, the court
concluded that Towery had not shown that the prosecutor
knowingly presented false testimony or failed to disclose
exculpatory information. It also agreed with the Arizona
Supreme Court that Towery suffered no prejudice. After
denying all other grounds for relief, the court granted a COA
on the prosecutorial misconduct issue only. See 28 U.S.C.
§ 2253(c).

C. Standard of Review

A district court’s decision to deny a petition for a writ of
habeas corpus is reviewed de novo. Moses v. Payne, 555 F.3d
742, 750 (9th Cir. 2009). Because Towery filed his habeas
petition after April 24, 1996, our review is governed by the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). Id. at 750-51. Under AEDPA, a federal court may
grant relief only if the underlying state court decision “was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States,” or “was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2).

D. Discussion

On habeas review of a prosecutorial misconduct claim, we
may grant relief only if the misconduct rises to the level of a
 TOWERY v. SCHRIRO 20309
due process violation — not merely because we might disap-
prove of the prosecutor’s behavior. See Sechrest v. Ignacio,
549 F.3d 789, 807 (9th Cir. 2008). Although formally pres-
ented as a single question, the prosecutorial misconduct issue
actually encompasses several different due process claims
drawing on distinct lines of precedent. First, Towery argues
that the prosecutor put on false evidence in violation of Napue
v. Illinois, 360 U.S. 264 (1959). Second, he argues that the
prosecutor failed to disclose exculpatory evidence in violation
of Brady v. Maryland, 373 U.S. 83 (1963). Finally, Towery
relies on more general cases discussing when prosecutorial
misconduct violates due process.

The Arizona Supreme Court concluded that there was pro-
secutorial misconduct, but did not specifically find a due pro-
cess violation or otherwise analyze the issue within any of the
above frameworks. It instead resolved the case on the basis of
harmless error. See Towery, 920 P.2d at 307. We begin our
analysis there to give proper deference to the Arizona
Supreme Court and hold that Towery’s claim can be rejected
on the harmless error ground alone. Nevertheless, we shall
also consider whether Towery has established a due process
violation warranting habeas relief under any of the prosecu-
torial misconduct frameworks recognized by the Supreme
Court, and we conclude that he has not.

1. Harmless Error

[1] A constitutional violation arising from prosecutorial
misconduct does not warrant habeas relief if the error is harm-
less. See Sandoval v. Calderon, 241 F.3d 765, 778 (9th Cir.
2000). When a state court has found a constitutional error to
be harmless beyond a reasonable doubt, a federal court may
not grant habeas relief unless the state court’s determination
is objectively unreasonable. See Mitchell v. Esparza, 540 U.S.
12, 17-18 (2003) (per curiam); Cooper v. Brown, 510 F.3d
870, 921 (9th Cir. 2007). Here, the Arizona Supreme Court
did not specifically address whether Towery’s federal due
20310 TOWERY v. SCHRIRO
process rights were violated, but found beyond a reasonable
doubt that the prosecutor’s misconduct did not contribute to
the verdict. It thereby performed the same harmless error
analysis it was required to do for a constitutional violation
under Chapman v. California, 386 U.S. 18, 24 (1967), and its
conclusion warrants our deference. See Early v. Packer, 537
U.S. 3, 8 (2002) (per curiam) (explaining that deference is
proper “so long as neither the reasoning nor the result of the
state-court decision contradicts” Supreme Court precedent).

The Arizona Supreme Court reasoned that if Towery’s law-
yer had been aware of Meacham’s prior testimony in the rob-
bery trial, the trial court would nevertheless have permitted
the evidence to be introduced — subject to impeachment
based on its prior inconsistent use. See Towery, 920 P.2d at
307. The court then noted the cross-examination that actually
did take place:

Q. Do you know for sure that [Towery was] talking
about Mr. Jones [the victim]?

A. I thought [Towery was] talking about when [he]
got busted before.

Q. So, in fact, you didn’t think [Towery was] talking
about Mr. Jones?

A. No, sir, I didn’t.

Id. On redirect, the prosecutor attempted to rehabilitate the
witness, but his attempt was limited to showing that Meacham
was uncertain either way about what Towery was referring to:

Q. Okay. The conversation that you overheard, was
it before or after all of this property came into the
house?

A. I believe it was after.
 TOWERY v. SCHRIRO 20311
Q. And you don’t really know what the conversation
that you heard pertains to, do you?

A. No, sir.

Id. Because these exchanges undercut the value Meacham’s
testimony had to the prosecution’s case, the Arizona Supreme
Court concluded that “[a]ny impeachment defense counsel
would have obtained from having known of the testimony in
the prior trial was effectively achieved.” Id.

[2] This conclusion was objectively reasonable. We agree
that the cross-examination of Meacham created significant
doubt about whether the overheard statements had anything to
do with the murder of Jones. If Towery’s lawyer had known
about Meacham’s testimony in the robbery trial, any further
impeachment based on this prior inconsistent use would have
been largely cumulative. See Williams v. Woodford, 384 F.3d
567, 599 (9th Cir. 2004) (holding the defendant suffered no
prejudice from the suppression of cumulative impeachment
evidence because the witness at issue would not have been
cast in a significantly worse light).

We are also unpersuaded by Towery’s argument that
Meacham’s testimony was crucial to the prosecution’s case.
Towery notes the relative lack of physical evidence and the
state’s heavy reliance on Barker’s testimony, and he suggests
Meacham’s testimony provided the primary source of corrob-
oration. It is true that the prosecutor relied on Meacham’s tes-
timony in his closing argument. Towery’s counsel rebutted
this argument in his closing, however, highlighting both
Meacham’s hearing disability and his expressed uncertainty
about what the statement referred to.

[3] Moreover, even granting that Meacham’s testimony
was important enough for the prosecutor to mention, we still
must view that evidence in the context of the case as a whole.
The prosecutor asserted from the outset of his closing that his
20312 TOWERY v. SCHRIRO
case rested on Barker’s testimony. After extensively summa-
rizing Barker’s testimony, the prosecutor offered several
sources of corroboration. Some of these, such as the stolen
items found in Towery’s room and the security guard’s identi-
fication of Towery as one of the people he saw dropping off
Jones’ car, were technically consistent with Towery’s alibi, as
he admitted to purchasing items from Barker and being
involved in the disposal of Jones’ car. However, the prosecu-
tor’s strongest source of corroboration was the testimony of
Monique Rousseau, who was Barker’s girlfriend at the time
of the incident. She testified that she heard Towery remark
upon seeing gay pornographic photographs found among the
stolen items, “[Jones] deserved it. The guy’s a pervert.”1 She
also testified that Towery took the lead in evenly dividing the
stolen money between himself and Barker, and that Barker
was in a state of shock, corroborating his testimony that he
was unprepared for and horrified by Towery’s murder of
Jones.

[4] Even though Rousseau was not an ideal witness, given
her arguable bias as Barker’s girlfriend at the time and her
acknowledged drug use, her detailed testimony of the eve-
ning’s events had substantially more corroborative value than
Meacham’s equivocal testimony. In sum, the Arizona
Supreme Court’s harmless error determination was objec-
tively reasonable.

Because we must deny habeas relief if the error is harmless,
we would affirm the district court on this ground alone. How-
ever, given the stakes involved, we think it is important to
analyze the issues thoroughly. We shall therefore separately
address Towery’s claims of error under the clearly established
due process frameworks governing prosecutorial misconduct.
1
Towery admitted to having made this statement, but indicated that he
was referring to what Barker had done to Jones.
 TOWERY v. SCHRIRO 20313
2. Napue Violation

[5] The knowing use of false evidence by the state, or the
failure to correct false evidence, may violate due process. See
Napue, 360 U.S. at 269. To establish a Napue claim, a peti-
tioner must show that “(1) the testimony (or evidence) was
actually false, (2) the prosecution knew or should have known
that the testimony was actually false, and (3) . . . the false tes-
timony was material.” United States v. Zuno-Arce, 339 F.3d
886, 889 (9th Cir. 2003) (citing Napue, 360 U.S. at 269-71).

[6] We hold that Towery’s argument fails at the second
Napue prong and thus do not decide whether it would also fail
at the first. The state argues there was no false evidence,
because Meacham testified accurately about what he had
heard and then acknowledged on cross-examination that he
thought the statement referred to a different incident. In
response, Towery argues that Meacham’s testimony “as used
in the murder trial” was false. In other words, the testimony,
even if technically accurate about what Towery had said, was
elicited in a manner that would mislead the jury about what
Towery actually meant. There is some support for Towery’s
view that accurate testimony could be delivered in a suffi-
ciently misleading context to make the evidence false for
Napue purposes. Compare United States v. Vozzella, 124 F.3d
389, 390 (2d Cir. 1997) (recognizing that Napue applied to
“the use of evidence that was in part false and otherwise so
misleading as to amount to falsity”), and United States v.
Barham, 595 F.2d 231, 240-41 (5th Cir. 1979) (holding evi-
dence was false when witnesses testified they had not been
offered leniency by “any of the attorneys” or “anybody in the
Northern District of Alabama,” but had in fact received prom-
ises from other authorities), with Byrd v. Collins, 209 F.3d
486, 517 (6th Cir. 2000) (noting that “in order to establish a
claim of prosecutorial misconduct or denial of due process,
. . . the defendant must show that the statement in question
was ‘indisputably false,’ rather than merely misleading.”
20314 TOWERY v. SCHRIRO
(quoting United States v. Lochmondy, 890 F.2d 817, 823 (6th
Cir. 1989))).

[7] We do not decide whether the use of Meacham’s testi-
mony was sufficiently misleading to satisfy the first Napue
prong, because to satisfy its second prong Towery would in
any event still have to show that the state knowingly created
a false impression. In Barham, 595 F.2d at 239, for example,
the prosecution knew its witnesses had received leniency
promises and were answering questions in a very specific
manner to create the misleading impression that they had not.
Here, by contrast, the prosecutor did not have knowledge of
any such underlying facts. Towery argues that Ditsworth
knew Meacham believed the statement referred to the robbery
incident. But because Towery’s statement was actually
ambiguous, Meacham’s subjective belief about what Towery
was referring to is irrelevant. Ditsworth could not have know-
ingly created a false impression unless he knew what Towery
himself meant, and Towery does not argue that Ditsworth had
any such knowledge. We therefore hold that Towery’s Napue
claim fails at the second prong.

3. Brady Violation

[8] Under Brady, “suppression by the prosecution of evi-
dence favorable to an accused upon request violates due pro-
cess where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the
prosecution.” 373 U.S. at 87. For a Brady claim to succeed,
“[1] [t]he evidence at issue must be favorable to the accused,
either because it is exculpatory, or because it is impeaching;
[2] that evidence must have been suppressed by the State,
either willfully or inadvertently; and [3] prejudice must have
ensued.” Banks v. Dretke, 540 U.S. 668, 691 (2004) (quoting
Strickler v. Greene, 527 U.S. 263, 281-82 (1999)) (internal
quotation marks omitted).

[9] Towery argues that the state failed to disclose it had
already relied on Meacham’s testimony for a different pur-
 TOWERY v. SCHRIRO 20315
pose in the previous unrelated robbery case. The state argues
that the prosecutor fulfilled his disclosure obligation by
informing defense counsel that Meacham had testified in the
prior trial. As the Supreme Court made clear in Banks, the
prosecution’s obligation under Brady includes the disclosure
of potential impeachment evidence, and the use of
Meacham’s testimony for a different purpose would certainly
have been a helpful impeachment device. Therefore, the ques-
tion is whether the prosecutor was obligated to do more than
he did to make the defense aware of Meacham’s prior testi-
mony and the manner in which it was used.

The Arizona Supreme Court held that he was. The court’s
finding of prosecutorial misconduct encompassed the determi-
nation that it was “improper for the State to fail to first notify
defense counsel and the court of its intent to use the evidence
in this manner.” Towery, 920 P.2d at 306. Under the unique
circumstances of this case, where the prosecutor knowingly
put Meacham’s testimony to inconsistent use in two separate
trials for two separate crimes, the court concluded that the
prosecutor had an obligation to do more than just reveal that
Meacham had testified in both trials. See id. at 306-07.

[10] Presuming that the Arizona Supreme Court’s conclu-
sions are correct, and therefore steps one and two of Brady are
met here, Towery’s argument nonetheless fails at step three
because he cannot show prejudice. As we discussed above,
and as the Arizona Supreme Court explained, had the prose-
cutor notified Towery and the court of the nature of
Meacham’s prior testimony, the testimony would likely still
have been permitted. See id. at 307. Defense counsel presum-
ably would have impeached Meacham with his testimony in
the prior robbery trial, raising doubts about whether the
admission related to the murder or the robbery. See id. As it
turned out, even though he did not have access to the robbery
trial transcript, Towery’s counsel still managed to do this on
cross-examination — he “elicited testimony indicating
Meacham either believed Defendant admitted some crime
20316 TOWERY v. SCHRIRO
other than the charged murder or was not sure what Defendant
was admitting.” Id. Because the defense was able to undercut
the value of Meacham’s testimony to the prosecution, the
court concluded that “[a]ny impeachment defense counsel
would have obtained from having known of the testimony in
the prior trial was effectively achieved.” Id. Accordingly, the
court determined “beyond a reasonable doubt that the prose-
cutor’s misconduct did not affect the verdict.” Id. We have
concluded this finding was objectively reasonable, as dis-
cussed above, so Towery cannot show the prejudice necessary
to sustain his Brady claim.

4. General Prosecutorial Misconduct

Finally, we note the more general line of authority regard-
ing prosecutorial misconduct and due process. These cases do
not address particular forms of misconduct, but instead estab-
lish the test for whether some generic misconduct rises to the
level of a due process violation. “The relevant question is
whether the prosecutors’ [misconduct] ‘so infected the trial
with unfairness as to make the resulting conviction a denial of
due process.’ ” Darden v. Wainwright, 477 U.S. 168, 181
(1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637,
643 (1974)). The Arizona Supreme Court found that there was
misconduct even if it was unintentional. Towery, 920 P.2d at
306. Assuming that is so, we need only decide whether the
prosecutor’s misconduct so tainted the trial as to violate due
process.

In section I.D.1, supra, we have held that the Arizona
Supreme Court’s harmless error determination was objec-
tively reasonable. For the same reasons, we also hold that the
court’s analysis was correct and that it applies here. Because
we agree that “beyond a reasonable doubt . . . the prosecutor’s
misconduct did not affect the verdict,” Towery, 920 P.2d at
307, we conclude the trial was not significantly “infected”
with unfairness. Any misconduct by Ditsworth therefore did
not violate due process under the Darden/Donnelly standard.
 TOWERY v. SCHRIRO 20317
***

[11] Because the Arizona Supreme Court’s harmless error
determination was objectively reasonable, we hold that Tow-
ery is not entitled to habeas relief based on Ditsworth’s pro-
secutorial misconduct. We further hold that any prosecutorial
misconduct that did take place did not constitute a violation
of due process cognizable in a federal habeas petition gov-
erned by AEDPA.

II. Uncertified Issues

Towery raises several additional claims that were not certi-
fied for appeal either by the district court or this court. Under
Ninth Circuit Rule 22-1(e), uncertified issues raised on appeal
“will be construed as a motion to expand the COA and will
be addressed by the merits panel to such extent as it deems
appropriate.” We grant Towery’s motion to expand the COA
as to the two claims discussed below, and deny it as to all
other claims.

A. Standard of Review for a Certificate of
Appealability

A COA should issue if a habeas prisoner can show “that
reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a differ-
ent manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. McDan-
iel, 529 U.S. 473, 484 (2000) (internal quotation marks and
citation omitted); accord Lambright v. Stewart, 220 F.3d
1022, 1025 (9th Cir. 2000). A claim “can be debatable even
though every jurist of reason might agree, after the COA has
been granted and the case has received full consideration, that
petitioner will not prevail.” Miller-El v. Cockrell, 537 U.S.
322, 338 (2003).
20318 TOWERY v. SCHRIRO
B. Judicial Bias at the Murder Trial

We grant Towery’s motion to expand the COA on this
claim because we conclude that jurists of reason might debate
whether it has been procedurally defaulted. See Slack, 529
U.S. at 484. Nonetheless, we hold that an independent and
adequate state default rule applies and federal habeas review
is barred.

1. Background

The presiding judge at Towery’s murder trial, Judge Hen-
drix, had previously presided over Towery’s trial and convic-
tion for armed robbery. Towery argues that because of this,
Judge Hendrix was biased against him at his murder trial and
his resulting conviction violates the Due Process Clause. He
points to several adverse rulings and statements Judge Hen-
drix made during the murder trial that he contends show she
based some of her rulings on facts she learned outside of that
proceeding.

Two different Arizona state courts addressed the judicial
bias claim in reasoned decisions. First, Judge Hendrix rejected
the claim on the merits in denying Towery’s petition for post-
conviction relief.2 Second, Judge Keppel addressed it in Tow-
ery’s motion for rehearing of the petition for post-conviction
relief. Judge Keppel both rejected the claim on the merits and
found that it was “precluded under [Arizona Rule of Criminal
Procedure] 32.2(a)(3) because it was not raised on direct
appeal.” The Arizona Supreme Court summarily denied Tow-
2
On the same day that he filed his motion for post-conviction relief,
Towery moved to disqualify Judge Hendrix from presiding over his post-
conviction relief proceedings, alleging bias. Although his motion to dis-
qualify was factually related to the claim that his underlying conviction
was unconstitutional because of Judge Hendrix’s bias, it was legally dis-
tinct. Therefore, that the motion to disqualify was addressed and rejected
on the merits has no bearing on whether the due process claim we consider
here was exhausted or procedurally defaulted.
 TOWERY v. SCHRIRO 20319
ery’s single petition for further review of both decisions on
this claim.

The district court rejected the judicial bias claim in Tow-
ery’s federal habeas petition, concluding that Judge Keppel’s
was the last reasoned state court judgment addressing the
claim, see Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991), and
that federal habeas review of the claim was barred because
Judge Keppel explicitly found a procedural default under state
law. See 28 U.S.C. § 2254(d).

2. Analysis

Towery makes a colorable argument that he has success-
fully exhausted his judicial bias claim before the state courts
because (1) Judge Hendrix addressed it on the merits, without
applying a state default rule; (2) that decision was never
vacated or set aside; and (3) Towery also sought further
review before the Arizona Supreme Court. According to Tow-
ery, we should ignore Judge Keppel’s decision for purposes
of federal habeas review because he denied rehearing and left
Judge Hendrix’s decision in place, even though he did so in
a reasoned decision addressing the underlying claims, and
Judge Hendrix’s decision did not rely on procedural default.
Of course, when state courts overlook a procedural default
and decide the merits of a federal claim, federal review is not
precluded. See Panther v. Hames, 991 F.2d 576, 580 (9th Cir.
1993) (per curiam).

[12] Towery’s position is ultimately unpersuasive. We
cannot ignore Judge Keppel’s decision explaining his denial
of Towery’s motion for rehearing. When it is evident from a
state court’s decision that the court has actually considered a
claim, we will not ignore the decision just because it is techni-
cally framed as a denial of rehearing or further review. Cf.
Bonner v. Carey, 425 F.3d 1145, 1147, 1148 n.13 (9th Cir.
2005) (according AEDPA deference to a California state
20320 TOWERY v. SCHRIRO
court’s reasoned denial of a “request for rehearing” of a state
habeas petition).

[13] Because Judge Keppel found that relief for the judi-
cial bias claim was barred under an independent and adequate
state procedural default rule, it follows that federal habeas
relief is also barred. See 28 U.S.C. § 2254(d).3 Therefore,
although we grant Towery’s motion to expand the COA
because jurists of reason might debate whether his claim was
procedurally defaulted, see Slack, 529 U.S. at 484, we con-
clude that it was defaulted and deny Towery’s habeas petition
as to this claim.

C. Ineffective Assistance of Counsel: Failure to
Challenge Syringe Testimony

We grant Towery’s motion to expand the COA on this
claim because we conclude that it is adequate to deserve
encouragement to proceed further. Id. Nonetheless, we ulti-
mately reject the claim because, even according Towery’s
arguments the weight they are due, he has failed to establish
that the state court’s rejection of this claim was “contrary to,
or involved an unreasonable application of, clearly established
Federal law . . . or was based on an unreasonable determina-
tion of the facts in light of the evidence presented.” 28 U.S.C.
§ 2254(d).

1. Background

Barker testified at trial that Towery was the murderer and
that, before strangling Jones, Towery had repeatedly and
unsuccessfully attempted to inject him with battery acid,
using an abnormally large syringe. The County Medical
Examiner’s testimony also suggested that someone had made
3
This result is unaffected by the fact that Judge Keppel also addressed
the merits of the claim. See Harris v. Reed, 489 U.S. 255, 264 n.10 (1989);
Comer v. Schriro, 480 F.3d 960, 964 n.6 (9th Cir. 2007).
 TOWERY v. SCHRIRO 20321
multiple, “not too skillful” attempts to inject the murder vic-
tim with an unknown substance. Towery contends his counsel
rendered ineffective assistance by failing to introduce evi-
dence that Towery was a skilled intravenous drug user who
would not have been so clumsy and would have had access
to regular-sized syringes. In Towery’s view, this would have
impeached the credibility of Barker’s testimony and bolstered
Towery’s alibi, suggesting that Towery was not the murderer.

Towery raised this ineffective assistance claim before the
state court in his petition for post-conviction relief. The state
court denied the claim, finding that “[a]sking the defendant
about his proficiency with a syringe would have been more
prejudicial than probative” because “[it] would have unequiv-
ocally established defendant as an I.V. drug user” and “telling
the jury about defendant’s I.V. drug use is more prejudicial
than probative.” Therefore, according to the state court, Tow-
ery could not establish prejudice under Strickland v. Washing-
ton, 466 U.S. 668 (1984), because there was “no
demonstrable reality that if trial counsel had [challenged the
syringe testimony] the outcome of the trial would have been
different.” The court also noted that “[n]o affidavit ha[d] been
provided to substantiate the element that the prevailing pro-
fessional norms were not met.” Towery raised the same
claims in his petition for review by the Arizona Supreme
Court, which summarily denied review. The district court
upheld the state court’s decision under AEDPA as a reason-
able application of federal law, reaching similar conclusions.

2. Analysis

Both the state post-conviction relief court and the habeas
district court understated the impeachment value of evidence
showing Towery’s skill in intravenous drug use and over-
stated the likely prejudice from admitting intravenous drug
use to the jury.
20322 TOWERY v. SCHRIRO
Regarding impeachment value, the state court opined that
Towery “would not have been able to state that ‘if I had been
the one trying to stab the victim with a syringe, I could have
done it with greater proficiency.’ ” The supposed import of
this finding is not entirely clear, but the court apparently
believed that he could not have benefitted from attacking the
plausibility of Barker’s testimony ascribing to Towery the
clumsy, brutal way the murder was carried out.4 This reason-
ing is flawed. To the contrary, casting Barker’s testimony as
implausible would certainly have bolstered Towery’s claim
that Barker was lying about who committed the murder, and
that the murderer likely was Barker himself, not Towery.5

Similarly, the habeas district court concluded that evidence
establishing Towery’s skill with needles would have been of
limited value because “the jury could readily have concluded
that there is a difference in the care and skilled [sic] applied
when injecting oneself for the purpose of getting high as
opposed to injecting another person with the purpose of kill-
ing him.” This is true, but a jury could reasonably have
reached a contrary conclusion. Considering how important
4
The relevant discussion in the state court’s opinion reads in its entirety:
Asking the defendant about his proficiency with a syringe would
have been more prejudicial than probative. It would have
unequivocally established defendant as an I.V. drug user. The
defendant would not have been able to state that “if I had been
the one trying to stab the victim with a syringe, I could have done
it with greater proficiency.”
The Court has been unable to find the testimony in the tran-
script that identifies the syringe used on the defendant as an “ani-
mal” syringe as opposed to a large syringe. Again, telling the jury
about defendant’s I.V. drug use is more prejudicial than proba-
tive.
5
For the same reason, the state’s contention that this evidence would
have been “inconsistent with, or at least irrelevant to” Towery’s alibi
defense is wholly unpersuasive. It certainly supports Towery’s alibi to
argue that the actions of whoever was present that night were not consis-
tent with how Towery himself would have acted had he been there.
 TOWERY v. SCHRIRO 20323
Barker’s testimony was to Towery’s conviction, the mere fact
that an opportunity to impeach might have failed does not
necessarily establish that it was reasonable for Towery’s
counsel not to attempt it.

With regard to likely prejudice, Towery’s drug use was
already before the jury, a fact neither the state court nor the
district court recognized. Among several references to his cli-
ent’s drug use, Towery’s counsel explained in his opening
statement that it was “not in dispute” that Towery “was using
crystal, or speed, or whatever you want to call it” during the
time of the murder. He also specifically elicited testimony
from Barker that Towery was using methamphetamine, and
that Barker and Towery had jointly purchased approximately
$400 of methamphetamine immediately after the crime.
Although we have not found in the record specific testimony
about intravenous drug use, one might reasonably doubt
whether the additional prejudicial impact of admitting intrave-
nous drug use would clearly outweigh the evidence’s value to
Towery’s defense.

In light of these considerations, we conclude that this issue
is adequate to deserve encouragement to proceed further and
therefore grant in part Towery’s motion to expand the COA.
See Slack, 529 U.S. at 484. But that does not end the matter.
We must still determine if relief is warranted. We conclude
that it is not.

[14] Strickland v. Washington and its progeny set a high
bar for a criminal defendant to establish that counsel’s perfor-
mance was deficient. See Strickland, 466 U.S. at 689 (“[A]
court must indulge a strong presumption that counsel’s con-
duct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presump-
tion that, under the circumstances, the challenged action
might be considered sound trial strategy.” (internal quotation
marks and citation omitted)); accord Matylinsky v. Budge,
577 F.3d 1083, 1090-91 (9th Cir. 2009). Although both the
20324 TOWERY v. SCHRIRO
state post-conviction relief court and the district court under-
stated the potential net value of the syringe evidence Towery
claims his trial counsel should have introduced, it is true that
additional evidence about Towery’s intravenous drug use
might have had some prejudicial impact. Indeed, Towery’s
trial attorney might have deliberately avoided any reference to
Towery’s intravenous drug use for fear of leading the jury to
consider it more likely that Towery was the murderer given
his use of and access to hypodermic needles, notwithstanding
the evidence that the murder involved an abnormally large
needle and multiple, unskilled punctures. Under these circum-
stances, declining to introduce evidence of Towery’s skill
with and access to syringes probably did not fall outside “the
wide range of reasonable professional assistance.” Strickland,
466 U.S. at 689.

More to the point, even if Towery could establish deficient
performance, the state court’s explicit holding that there was
no prejudice under Strickland’s second prong was not “objec-
tively unreasonable.” See Lockyer v.Andrade, 538 U.S. 63, 75
(2003). To establish prejudice, “[t]he 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.” Strickland, 466 U.S. at 694. Although the evi-
dence about the syringe use was horrific and likely had a
strong impact on the jury as well as the sentencing judge, the
prejudice analysis must take into account that it was undis-
puted that the murder was actually accomplished in this
clumsy, horrific manner. Towery’s alibi defense disputed the
identity of the murderer, not the nature of the crime. In this
context, establishing Strickland prejudice would require Tow-
ery to show that if he had argued to the jurors that he was a
skilled intravenous drug injector, there is a reasonable proba-
bility that they would have disbelieved Barker’s testimony
that Towery was the murderer.

[15] Although the state court’s analysis was brief, we can-
not say that its conclusion that Towery failed to make this
 TOWERY v. SCHRIRO 20325
showing was objectively unreasonable. Even if evidence of
Towery’s skill with syringes would not have added to the
opprobrium flowing from evidence of his drug use already
before the jury, it nonetheless might have led the jury to con-
sider it more likely that Towery was the murderer given his
use of and access to hypodermic needles, instead of less likely
on the theory that a skilled drug user probably would not have
used a big needle and miss veins. More importantly, consider-
able other evidence linked Towery to the murder, including
Jones’ gold dental crown and car keys found in Towery’s
briefcase, other stolen items found in Towery’s bedroom,
Towery’s fingerprint found on the housing of the compact
disc player that had been removed from Jones’ car and Bark-
er’s girlfriend’s testimony that Barker and Towery split the
stolen money evenly and that Towery showed her photo-
graphs taken from the victim’s home and said “the guy
deserved it.”6 On this record, it was not objectively unreason-
able for the state court to conclude that “there is no demon-
strable reality that if trial counsel had [introduced this kind of
evidence] the outcome of the trial would have been different.”

In sum, we hold that this claim was adequate to deserve
encouragement to proceed further, see Slack, 529 U.S. at 484,
and therefore grant the motion to expand the COA to include
it, but we conclude that federal habeas relief is barred under
AEDPA. Although the post-conviction relief court’s discus-
sion was brief and not entirely persuasive, it applied the cor-
rect standard and reached a result that was not “objectively
unreasonable.” Lockyer, 538 U.S. at 75.

III. Conclusion

The district court’s denial of habeas corpus is
AFFIRMED.
6
As noted previously, some of this evidence was also technically consis-
tent with Towery’s alibi. See section I.D.1, supra.