Rhoades v. Henry

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PAUL EZRA RHOADES,  No. 07-99022
Petitioner-Appellant, D.C. No.
v. CV-93-00155-S-EJL
JEFF HENRY, of the IMSI,  ORDER
Department of Corrections State of AMENDING
Idaho* OPINION AND
Respondent-Appellee. AMENDED
 OPINION

Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding

Argued and Submitted
February 3, 2010—Seattle, Washington

Filed March 8, 2010
Amended February 8, 2011

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).

2303
2310 RHOADES v. HENRY (Baldwin)

COUNSEL

Oliver W. Loewy, Federal Defender Services of Idaho, Mos-
cow, Idaho, for the petitioner-appellant.

L. LaMont Anderson, Deputy Attorney General, Boise, Idaho,
for the respondent-appellee.

ORDER

The opinion filed March 8, 2010, and appearing at 596 F.3d
1170, 1181, is amended as follows: Delete the last two full
paragraphs of Section A, page 1181.

The petition for rehearing and petition for rehearing en
banc are DENIED. No further petitions will be entertained.

OPINION

RYMER, Circuit Judge:

An Idaho jury found Paul Ezra Rhoades guilty of the 1987
first degree murder, first degree kidnapping, and robbery of
Stacy Baldwin.1 The trial court sentenced him to death for
1
Rhoades was separately convicted for the shooting deaths of Susan
Michelbacher and Nolan Haddon, both of whom were killed with the same
gun that killed Baldwin during the same three-week period in February
and March of 1987. He was sentenced to death on his convictions for first
degree murder, and first degree kidnapping, of Michelbacher, see State v.
Rhoades (Michelbacher), 822 P.2d 960 (Idaho 1991), and received two
 RHOADES v. HENRY (Baldwin) 2311
both the murder and the kidnapping, and to a fixed term of
life in prison for robbery. The Idaho Supreme Court upheld
his conviction, sentence, and denial of post-conviction relief,
State v. Rhoades (Baldwin), 820 P.2d 665 (Idaho 1991)
(Rhoades I), and the federal district court denied his petition
for a writ of habeas corpus. Rhoades appeals, and we affirm.

I

Rhoades had been loitering around convenience stores in
the Blackfoot and Idaho Falls area, including the Red Mini
Barn in Blackfoot. Stacy Baldwin worked at the Red Mini
Barn and began her night shift around 9:45 p.m. on February
27, 1987. Some time before 11:00 p.m., Carrie Baier and two
other girls rented videos at the Mini Barn from Stephanie
Cooper, Baldwin’s co-worker. Cooper’s shift ended at 11:00
p.m, which left Baldwin alone.

When Baier returned around midnight, she noticed a man
leave the store, get into a pickup truck (it turned out to be one
used by the Rhoades family), and drive recklessly toward her.
Baier saw a passenger next to the driver, but neither she nor
her friends could identify the driver or the passenger. Baier
went into the Mini Barn but could not find Baldwin, though
Baldwin’s coat was still there and her car was outside. The
last recorded transaction at the store was at 12:15 a.m. $249
was missing from the cash register.

Rhoades and another male had coffee at Stan’s Bar and
Restaurant, near the Mini Barn, sometime between 1:30 a.m.
and 2:00 a.m. on February 28.

indeterminate life sentences for the Haddon murder after entering a condi-
tional guilty plea, see State v. Rhoades (Haddon), 809 P.2d 455 (Idaho
1991). Appeals from denial of federal habeas relief in both cases are also
before us; we resolve them in separate opinions. Rhoades v. Henry
(Michelbacher), No. 07-99023, slip op. (9th Cir. March 8, 2010); Rhoades
v. Henry (Haddon), No. 07-35808, slip op. (9th Cir. March 8, 2010).
2312 RHOADES v. HENRY (Baldwin)
Baldwin’s body was found later that morning near some
garbage dumpsters on an isolated road leading to an archery
range. She had been shot three times. According to a patholo-
gist, Baldwin died from a gunshot wound to the back and
chest, but may have lived for an hour or so after the fatal shot
was fired.

On March 22 or 23, Rhoades’s mother reported her green
Ford LTD had been stolen. Rhoades was seen driving a simi-
lar looking LTD on March 22, and on March 24, truckers saw
the LTD parked on a highway median in Northern Nevada.
They also saw a person matching Rhoades’s description lean
out of the car, fumble with a dark brown item, and run off into
the sagebrush. A Nevada trooper responding to the scene
found a .38 caliber gun on the ground near the open door of
the car, and a holster about forty-five feet away. Ballistics
testing would show that this weapon had fired the bullets that
killed Baldwin.

Rhoades turned up about 11:00 in the morning of March 25
at a ranch a mile and a half from where the LTD was found.
Later that day, he got a ride from the ranch to Wells, Nevada,
where he was dropped off at the 4 Way Casino around 9:00
p.m. Nevada law enforcement officers arrested Rhoades while
he was playing blackjack. They handcuffed him, set him over
the trunk of the police car, and read him his Miranda rights.2

Meanwhile, Idaho authorities were alerted to a Rhoades
connection when the LTD was discovered. They had previ-
ously obtained a warrant for Rhoades’s arrest for burglary of
Lavaunda’s Lingerie, and arrived at the 4 Way Casino shortly
after Rhoades was arrested. As the Idaho officers — one of
whom Rhoades knew from home — approached, Rhoades
said: “I did it.” Rhoades was advised of his Miranda rights by
an officer from Idaho, Victor Rodriguez, and searched by
another Idaho officer, Dennis Shaw. Rhoades had a digital
2
Miranda v. Arizona, 384 U.S. 436, 467-72 (1966).
 RHOADES v. HENRY (Baldwin) 2313
wrist watch in his pocket, which he claimed to have found in
a “barrow pit.” It was just like the one Baldwin was wearing
the night she was killed.

During the booking process at the Wells Highway Patrol
Station, Shaw remarked something to the effect: “If I had
arrested you earlier, Stacy Baldwin may be alive today.”
Rhoades replied: “I did it.” Shaw then said, “The girl in
Blackfoot,” and Rhoades again replied, “I did it.”3

Forensic analysis would show that footprints found in the
snow near Baldwin’s body were consistent with the size and
pattern of Rhoades’s boots, and that Rhoades’s hair was con-
sistent with a hair on Baldwin’s blouse. Rhoades also admit-
ted to a cellmate that he kidnapped Baldwin, took her to an
archery range intending to rape her but was unable to do so
because she was hysterical, and shot her twice in the back.

II

Based on this evidence, the jury found Rhoades guilty of
murder in the first degree, kidnapping in the first degree, and
robbery. The state court held an aggravation and mitigation
hearing, after which it sentenced Rhoades to death on the con-
viction for first degree murder and the conviction for first
degree kidnapping. Rhoades filed a direct appeal and sought
post-conviction relief, which the trial court denied after hold-
ing evidentiary hearings. Once that denial was appealed, the
Idaho Supreme Court consolidated both appeals in accord
with its procedure for capital cases. It affirmed Rhoades’s
convictions, death sentences, and denial of post-conviction
3
Shaw actually referred to all three murders, along the lines: “If I had
arrested you earlier, three people would be alive” followed by “The girl
in Blackfoot, and the two people in Idaho Falls.” However, to avoid preju-
dice, the parties stipulated that at trial Shaw would refer only to Baldwin
and “the girl in Blackfoot.” For ease, we collapse the two “I did it” state-
ments at the station into one, and refer to the two collectively as the sec-
ond “I did it” statement.
2314 RHOADES v. HENRY (Baldwin)
relief on September 12, 1991. The United States Supreme
Court declined to issue a writ of certiorari.

Rhoades filed a Statement of Issues in federal court on
April 29, 1993, and a Petition for Writ of Habeas Corpus on
November 30, 1993. The Antiterrorism and Effective Death
Penalty Act (AEDPA), which became effective April 24,
1996, is not applicable except to procedural requirements for
seeking review. Sims v. Brown, 425 F.3d 560, 562 (9th Cir.
2005).

As one would expect, there were several amendments to the
petition and numerous rulings by the district court.4 Among
decisions pertinent to this appeal, the district court denied
Rhoades’s request for an evidentiary hearing on claims that
the state withheld exculpatory evidence, that Rhoades’s
Miranda rights were violated, and that appellate counsel ren-
dered ineffective assistance. Ultimately the district court
denied all of Rhoades’s claims, as well as his motion to alter
and amend the Memorandum Decision and Judgment pursu-
ant to Federal Rule of Civil Procedure 59.

Rhoades has timely appealed those grounds on which he
received a certificate of appealability.

III

We review de novo the district court’s decision to grant or
deny a petition for writ of habeas corpus. Martinez-Villareal
v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996). We also review
de novo the district court’s decision to dismiss a habeas peti-
tion for procedural default or for failure to exhaust. Vang v.
4
While federal proceedings were pending, Rhoades filed two successive
post-conviction petitions in state court November 4, 1996, which were
denied by the trial court. The Idaho Supreme Court dismissed appeals
from both judgments. State v. Rhoades, No. 29180/29212, slip op. (Idaho
Dec. 12, 2005).
 RHOADES v. HENRY (Baldwin) 2315
Nevada, 329 F.3d 1069, 1072 (9th Cir. 2003). Similarly,
“[i]neffective assistance of counsel claims are mixed ques-
tions of law and fact which we review de novo.” Beardslee v.
Woodford, 358 F.3d 560, 569 (9th Cir. 2004).

“To the extent it is necessary to review findings of fact
made in the district court, the clearly erroneous standard
applies.” Silva v. Woodford, 279 F.3d 825, 835 (9th Cir.
2002). This clear error review is “significantly deferential,”
and our court “must accept the district court’s factual findings
absent a ‘definite and firm conviction that a mistake has been
committed.’ ” Id. (citation omitted). Further, “[a]lthough less
deference to state court factual findings is required under the
pre-AEDPA law which governs this case, such factual find-
ings are nonetheless entitled to a presumption of correctness
unless they are ‘not fairly supported by the record.’ ” Id. (cita-
tions omitted).

“A district court denial of an evidentiary hearing is
reviewed for abuse of discretion.” Beardslee, 358 F.3d at 573.

IV

Rhoades argues that exclusion of testimony regarding
Keven Buchholz’s confessions to the Baldwin murder denied
him due process.5 Buchholz was arrested at his parents’ home
on March 14, 1987, after his father called the police to report
a fight. At the jail, Buchholz, while quite drunk, told the offi-
cer on duty that evening, Larry Christian, that he had shot the
5
Rhoades failed to pursue this claim in his first post-conviction petition,
therefore the Idaho Supreme Court treated it as waived. Rhoades v. State,
17 P.3d 243, 247 (Rhoades II) (Baldwin) (Idaho 2000). By the same token,
the state failed to assert procedural default in district court. We decline sua
sponte to consider this issue.
Rhoades further argues that the court’s ruling was erroneous under the
Idaho Rules of Evidence. However, evidentiary rulings based on state law
cannot form an independent basis for habeas relief. Estelle v. McGuire,
502 U.S. 62, 67-68 (1991).
2316 RHOADES v. HENRY (Baldwin)
girl from the Mini Barn twice in the back. Christian reported
the conversation to his supervisor, then returned. Buchholz
repeated that he shot the girl from the Mini Barn twice in the
back, had shot several times around the body, and had emp-
tied the gun. Rhoades tried, unsuccessfully, to subpoena
Buchholz for trial. He then sought to call Christian to testify
to what Buchholz told him.

Buchholz recanted the confession once sober, explaining
that he was with his family the night of the murder. Family
members confirmed this. In addition, Buchholz’s fingerprints,
hair sample, and shoe prints were taken; none matched any-
thing connected to the crime.6 The police could not link Buch-
holz to the murder weapon, and determined that information
in his confession could have come from public sources or gos-
sip in the community.

The state moved to exclude Christian’s testimony. Rhoades
presented an offer of proof indicating that Christian would
testify that Buchholz told him he shot the girl twice in the
back; shot at her several times; stole a green pickup in Poca-
tello which he left at Fort Hall; and the gun was either a .38
caliber or a 9mm. The proffer also indicated that shell casings
from both sizes were found at the scene. The trial court pre-
cluded Christian from testifying because it found that Buch-
holz’s confession lacked sufficient corroboration to be
trustworthy, thus Christian’s testimony about what Buchholz
told him would be hearsay under Rule 804(b)(3) of the Idaho
Rules of Evidence.7
6
Buchholz also took a polygraph examination, but that test is irrelevant
because polygraph results are inadmissible under Idaho law absent a stipu-
lation. State v. Fain, 774 P.2d 252, 256-57 (Idaho 1989).
7
Under Idaho Rules of Evidence 804(b)(3), an unavailable declarant’s
statement against interest “tending to expose the declarant to criminal lia-
bility and offered to exculpate the accused is not admissible unless corrob-
orating circumstances clearly indicate the trustworthiness of the
statement.”
 RHOADES v. HENRY (Baldwin) 2317
Christian and Buchholz both testified at a post-conviction
evidentiary hearing. The evidence showed that Buchholz was
out of control at his parents’ home, his father called the
police, and he was arrested for battery and resisting arrest. He
was placed in a holding tank, and asked to talk to Christian.
Christian described Buchholz as “well out of it, as far as being
drunk,” crying, upset, fighting, and “trying to give him a rea-
son to lock him up.” Christian also explained that it was gen-
erally known that a green Ford pickup was found near Fort
Hall, and the police knew that Stacy had been shot in the
back. Buchholz agreed that he was drunk, and had gotten into
a fight with his parents. Officer Love (whom he knew)
responded to his father’s call and took him to jail; Love ran
through a list of things they could book him for, to which
Buchhoz replied “You might as well book me for murder,
too.” Buchholz explained that he was under the influence,
upset with the officer and his parents, and had made the state-
ment to get attention because he thought they were piling on
unfair charges. Buchholz also testified that he was at the hos-
pital when Stacy’s body was brought in because his daughter
had appendicitis.

[1] The district court concluded that Buchholz’s statement
lacked “persuasive assurances of trustworthiness” as he was
intoxicated when he confessed and recanted when he was
sober, his alibi checked out, and there was no other evidence
linking him to the crime. See Chambers v. Mississippi, 410
U.S. 284, 300-01 (1973). We agree.

[2] Rhoades relies heavily on Chambers, where a third
party confessed on four separate occasions before recanting,
and the Court found that a hearsay rule could not be applied
to prohibit introduction of those confessions without offend-
ing due process. He points out that Buchholz also confessed
several times — once to the arresting officer and twice to
Christian. The circumstances are different, however, as Buch-
holz’s confessions occurred during a single, continuous tirade.
The fact that he said the same thing three times in one out-
2318 RHOADES v. HENRY (Baldwin)
burst does not make his otherwise untrustworthy statement
trustworthy. The circumstances surrounding the Buchholz
confession are likewise different from those in cases such as
Green v. Georgia, 442 U.S. 95 (1979), where the proffered
statement was reliable enough to have been used against
Green’s codefendant in a related trial; Rock v. Arkansas, 483
U.S. 44 (1987), where the Court held that a per se rule against
hypnotically-refreshed testimony ran afoul of due process
when, as was true there, it had the effect of excluding testi-
mony that was supported by corroborating evidence; Crane v.
Kentucky, 476 U.S. 683 (1986), where the issue was voluntar-
iness and credibility; Holmes v. South Carolina, 547 U.S. 319
(2006), where the Court rejected as arbitrary a rule that made
admissibility turn on the strength of only the prosecution’s
evidence; and Washington v. Texas, 388 U.S. 14 (1967),
which involved direct (rather than hearsay) testimony by prin-
cipals, accomplices or accessories to the crime and where the
Court held that the evidence could not be excluded based on
a priori categories that presume an entire class of witnesses to
be unworthy of belief.8

[3] Rhoades also posits a different result were we to apply
the balancing test of Miller v. Stagner, 757 F.2d 988, 994-95
(9th Cir. 1985).9 Whether or not the test is applicable in the
circumstances of this case, applying it would not change the
8
Rhoades’s reliance on our decisions in Thomas v. Hubbard, 273 F.3d
1164, 1177 (9th Cir. 2002) (as amended), and United States v. Crosby, 75
F.3d 1343, 1347 (9th Cir. 1996), is misplaced for the similar reason that
neither involved hearsay testimony.
9
As restated in Alcala v. Woodford, 334 F.3d 862, 877 (9th Cir. 2003)
(nonnumerical alteration in original):
In weighing the importance of evidence offered by a defendant
against the state’s interest in exclusion, the court should consider
[1] the probative value of the evidence on the central issue; [2]
its reliability; [3] whether it is capable of evaluation by the trier
of fact; [4] whether it is the sole evidence on the issue or merely
cumulative; and [5] whether it constitutes a major part of the
attempted defense. A court must also consider [6] the purpose of
the [evidentiary] rule; [7] its importance; [8] how well the rule
implements its purpose; and [9] how well the purpose applies to
the case at hand. The court must give due weight to the substan-
tial state interest in preserving orderly trials, in judicial effi-
ciency, and in excluding unreliable or prejudicial evidence.
 RHOADES v. HENRY (Baldwin) 2319
outcome. Of course a confession may have great probative
value, but it also may not, and if not — as here — it may be
excluded. Holmes, 547 U.S. at 326. With nothing to back up
Buchholz’s confession, it was unreliable. The jury would have
had no opportunity to evaluate Buchholz’s credibility and
demeanor; Christian’s testimony would have been the only
testimony on the issue. Christian’s recitation could not realis-
tically have been a major part of Rhoades’s defense given the
circumstances in which Buchholz’s statements were made, his
recantation and alibi, and the dearth of independent evidence
tying Buchholz to the crime. Further, an evidentiary rule such
as Idaho Rule of Evidence 804(b)(3) serves the important role
of excluding testimony that lacks significant indicia of reli-
ability. See United States v. Fowlie, 24 F.3d 1059, 1069 (9th
Cir. 1994) (holding that application of Federal Rule of Evi-
dence 804(b)(3), which is virtually identical to the Idaho
Rule, does not violate due process). Exclusion of Christian’s
testimony advances this purpose.

[4] Accordingly, we conclude that Rhoades’s due process
rights were not violated by precluding Christian from testify-
ing about what Buchholz told him.

V

[5] It follows that Rhoades cannot prevail on the related
argument that his counsel was ineffective for failing to con-
duct an adequate investigation into Buchholz’s confession, or
failing to argue on appeal that due process mandated its
admission. Simply put, neither would have gone anywhere.
See Strickland v. Washington, 466 U.S. 668, 687 (1984)
(holding that petitioner must show prejudice as well as defi-
cient performance). Rhoades suggests that counsel could have
discovered there were shell casings on the ground consistent
with Buchholz’s confession, and that details related by Buch-
holz were accurate but not yet public, for example, that Bal-
dwin had been shot twice in the back. However, whether there
were shell casings on the ground, or Buchholz correctly
2320 RHOADES v. HENRY (Baldwin)
described some elements of the crime, doesn’t matter without
evidence linking Buchholz to Baldwin, to the scene, or to the
murder weapon. Rhoades also suggests that counsel would
have found out the lie detector results, but whether Buchholz
did (or did not) pass the lie detector test would have made no
difference because it wasn’t admissible, anyway. And given
no due process violation, as we have explained, there is no
reason to suppose that state appellate counsel making the
same arguments that Rhoades now makes would have been
successful in changing the outcome.

[6] Rhoades offers no support for his further argument that
the district court should have held an evidentiary hearing on
the issue. We review denial of an evidentiary hearing for
abuse of discretion, Beardslee v. Woodford, 358 F.3d 560,
573 (9th Cir. 2004), and see none.

VI

[7] Rhoades asserts three supposed Brady10 violations:
First, the state’s failure to disclose that he invoked his right
to silence en route from the 4 Way Casino to the Wells High-
way Patrol Station, which he maintains had the effect of mak-
ing it appear that the second “I did it” statement waived his
right. Second, the prosecution’s failure to disclose all the
police reports regarding Buchholz’s confession, which would
have shown that he confessed multiple times, thereby making
testimony about it admissible. And third, the state’s failure to
disclose a recorded statement of Loretta Wallace (one of the
three girls near the Mini Barn at midnight) whose description
of the pickup truck more closely matched the one Buchholz
10
Brady v. Maryland, 373 U.S. 83, 87 (1963) (imposing duty on the
prosecution to disclose material evidence favorable to an accused). Three
requirements must be met to prove a Brady violation: “The evidence at
issue must be favorable to the accused, either because it is exculpatory, or
because it is impeaching; that evidence must have been suppressed by the
State, either willfully or inadvertently; and prejudice must have ensued.”
Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
 RHOADES v. HENRY (Baldwin) 2321
claimed to have driven than the one that Rhoades sometimes
drove. He also maintains that the district court should not
have denied an evidentiary hearing on the first two issues.

A

The Idaho Supreme Court implicitly found that Rhoades
impliedly waived his right to silence by choosing to say “I did
it” in response to Shaw’s comment at the station that the vic-
tim would be alive had Rhoades been arrested earlier.
Rhoades submits this couldn’t have happened if he, and the
Idaho courts, had been aware of a report by Detective Shaw
reflecting that Rhoades invoked his right to silence on the way
to the station. He maintains that the report only came to light
in connection with Shaw’s deposition taken in 1996.

In the report, Shaw states:

On the way to the police station I continued to talk
with [Rhoades]. He was very uncomfortable as he
was so large and the car did not give him much
room. I told him I was disappointed in him and he
had lied to me about the burglary. I had tried to
believe him and give him a chance but he had lied
and conned me. I said we need to talk about it now
so that you can get it off your chest. He said, “Aw
bullshit, I don’t want to talk about it.[ ] Get these
fuckin cuffs off me.”

At his deposition, Shaw explained that he was talking about
the Lavaunda’s Lingerie burglary in the car because he
wanted to start chronologically and that’s where his warrant
was. Shaw assumed that when Rhoades said he didn’t want to
talk about it, it was because Rhoades was cramped. Once
inside the station, Shaw removed the handcuffs and proceeded
to talk.
2322 RHOADES v. HENRY (Baldwin)
Rhoades contrasts this account with Shaw’s testimony at
the July 15, 1987 preliminary hearing, where he said that the
only significant thing that happened en route from the casino
to the station was that Rhoades, who is a large man, was
uncomfortable and complained about being handcuffed in the
car. Rhoades also points out that it was several months before
the second “I did it” statement was put into any report, and
then not by Shaw. From this, Rhoades postulates that Shaw
viewed the interrogation in the car and at the station as a sin-
gle, continuous event, and forgot all of it.11

The district court found that Rhoades failed to show that his
trial counsel, David Parmenter, was unaware of the informa-
tion in the report. Parmenter testified at his deposition that he
believed he had seen the Shaw report and was familiar with
some of the information in it, though he later submitted a dec-
laration indicating that he did not recall that the state ever pro-
vided the report. Rhoades challenges this finding only on the
footing that it should not have been made without an evidenti-
ary hearing, but the district court had discretion to rule on the
record as it was given no evidence that counsel did not have
information that was in the report — whether or not he had
the report itself. See Swan v. Peterson, 6 F.3d 1373, 1384 (9th
Cir. 1993) (holding that a petitioner is “entitled to an evidenti-
ary hearing only if [he] alleged facts that, if proved, would
entitle [him] to relief.”).
11
In passing, Rhoades suggests he diligently pursued facts showing that
he had invoked his right to silence, a point he does not develop and we
accordingly do not address; and he urges us not to ignore the fact that the
prosecution failed to mention an en route invocation in the Michelbacher
and Haddon cases as well. As the Idaho courts treated these cases sepa-
rately, so do we. But if we were to move past the record in this case, the
prosecutor in fact called Rhoades’s counsel’s attention to the Shaw report
at a discovery conference in the Haddon case. See Rhoades (Haddon), slip
op. at 3608-09.
 RHOADES v. HENRY (Baldwin) 2323
B

Again focusing on Buchholz’s confession, Rhoades com-
plains that the prosecutor failed to disclose that Buchholz con-
fessed three times, not just once, and to officers working for
different agencies. Blackfoot Chief of Police J. J. Love, who
arrested Buchholz, made a report indicating that Buchholz
told him he “was the one who killed the girl at the Mini Barn.
Why don’t you pin it on me. I did it.” Christian, the officer
who talked to Buchholz at the jail, filled out a report indicat-
ing that Buchholz told him he had fired several shots and hit
the girl from the Mini Barn twice in the back with a .38 or a
9mm. Detective Newbold, of the Blackfoot Police Depart-
ment, to whom Christian told what had happened, prepared a
report that mentions Christian’s written report and summa-
rizes it in detail. The Newbold report was turned over, though
neither the Love nor Christian reports was.

[8] As his trial proffer reveals, Rhoades undisputedly knew
that Buchholz confessed to Christian that he shot the girl from
the Mini Barn. Counsel conceded as much in his post-
conviction testimony. His trial proffer also refers to Chris-
tian’s “more detailed report,” so he knew about it as well. All
Rhoades apparently didn’t have at trial was Officer Love’s
report, but it added no detail not apparent from the Newbold
summary or available from Christian. Without question,
Rhoades had all the “salient facts regarding the existence of
the [evidence] that he claims [was] withheld.” Raley, 444 F.3d
at 804. Accordingly, the information was not suppressed.

As we have explained, that Buchholz said more or less the
same thing to Love on the way to jail as he said to Christian
at the jail, all while quite inebriated, isn’t material. The
defense was armed with a confession, who confessed, to
whom and about what. In addition, the trial court in post-
conviction proceedings found that Buchholz was credible in
his account of why he confessed and why he recanted, and
that Rhoades was not prejudiced by non-disclosure of any
2324 RHOADES v. HENRY (Baldwin)
material related to the confession. The Idaho Supreme Court
likewise did not believe the outcome of trial would have been
different had the defense received the other police reports.
Both determinations are well-supported in the record.

The district court did not abuse its discretion in ruling with-
out an evidentiary hearing. Rhoades fails to suggest why the
state post-conviction hearing was inadequate; or why the
Idaho Supreme Court’s determination that the undisclosed
reports were sufficiently summarized in Newbold’s report to
put counsel on alert, and that the reports were not material,
was incorrect.

C

[9] Rhoades further claims that the state failed to turn over
a recorded statement by Loretta Wallace during which, while
in and out of hypnosis, she described a man leaving the Mini
Barn whose characteristics did not match Rhoades. It was part
of a videotape of the “Baldwin Crime Scene” that had a ten
minute gap before the Wallace statement. The claim fails
because the videotape was, in fact, disclosed. Counsel just
didn’t find Wallace’s statement. Rhoades points to no author-
ity requiring the prosecution to single out a particular segment
of a videotape, and we decline to impose one.12

D

[10] Finally, the district court found that, considering the
suppressed evidence collectively, there was no prejudice. See
Kyles v. Whitley, 514 U.S. 419, 434 (1995) (instructing courts
to determine whether, had evidence been disclosed, there is a
12
See United States v. Mulderig, 120 F.3d 534, 541 (5th Cir. 1997) (not-
ing “that ‘there is no authority for the proposition that the government’s
Brady obligations require it to point the defense to specific documents
with[in] a larger mass of material that it has already turned over’ ” (quot-
ing United States v. Mmahat, 106 F.3d 89, 94 (5th Cir. 1997))).
 RHOADES v. HENRY (Baldwin) 2325
reasonable probability of a different outcome by reviewing
impact of withheld evidence collectively, rather than item by
item). As the court pointed out, evidence at trial showed that
the murder weapon was found just outside the LTD that
Rhoades was driving and bullets like those used in the murder
were inside it. A witness had seen Rhoades with a similar
handgun after Baldwin was killed, and Rhoades had bought
.38 caliber ammunition like that found in the abandoned car.
A pickup he often drove was seen driving away from the Mini
Barn when Baldwin disappeared. Footprints around where
Baldwin was found were consistent with Rhoades’s large-
sized boots, as was a hair found on Baldwin’s shirt. Rhoades
had a watch like Baldwin’s in his pocket when he was
arrested. He told Shaw “I did it,” and admitted to Holm that
he kidnapped Baldwin and tried to rape her, told her to pray,
and shot her several times, hitting her twice in the back. In the
court’s view, nothing about this picture would have changed
had the defense received the other reports (or found Buchholz
and he had testified), and had information about Wallace been
presented: the circumstances that made Buchholz’s confession
unreliable would have come out; and Wallace’s statement,
even if admissible, would have been cumulative because a
description similar to hers was already before the jury through
Detective Newbold and cross-examination of Carrie Baier.

[11] We conclude as well that non-disclosure of the “miss-
ing” information about Buchholz and Wallace does not under-
mine confidence in the outcome of the trial. See Kyles, 514
U.S. at 434 (reiterating that a reasonable probability of a dif-
ferent result is shown “when the government’s evidentiary
suppression ‘undermines confidence in the outcome of the
trial.’ ” (quoting United States v. Bagley, 473 U.S. 667, 678
(1985))). Information about the “I don’t want to talk about it”
statement was not suppressed; Rhoades made the statement
himself, and failed to show it was unknown to counsel. The
strong evidence of guilt would not have been materially
altered by Wallace’s statement or the Love report. Accord-
2326 RHOADES v. HENRY (Baldwin)
ingly, there is no Brady violation in any of the respects
claimed.

VII

Rhoades argues that the trial court violated his Fifth, Sixth,
Eighth, and Fourteenth Amendment rights by admitting his
second “I did it” statement, and that the district court abused
its discretion in denying him an evidentiary hearing on the
issue. Alternatively, he submits that he should prevail on the
merits.

[12] The Idaho Supreme Court characterized Shaw’s
remark about the victim being alive if he had arrested
Rhoades earlier as the functional equivalent of interrogation.
Nevertheless, it concluded that Rhoades’s second “I did it”
statement was admissible because Rhoades had been advised
of his rights, had indicated that he understood them, and had
not invoked his right to silence. Rhoades I (Baldwin), 820
P.2d at 675. (Rhoades’s “I don’t want to talk about it” state-
ment, made en route to the station, was not before the Idaho
courts.) The district court found the supreme court’s determi-
nation was supported by the record that was before it, pre-
sumed this finding to be correct, and found that Rhoades had
presented no evidence rebutting the factual finding. The dis-
trict court further noted that the second “I did it” statement
came relatively soon after Rhoades was arrested and Miranda
warnings were administered. Additionally, in the district
court’s view, Rhoades’s “I did it” response was not the prod-
uct of coercive interrogation so much as it was uttered during
a brief exchange while booking was in process when Shaw
made an offhand comment. Thus, the court concluded,
Rhoades waived his Miranda rights by saying “I did it.”

To avoid this conclusion, Rhoades sought to present evi-
dence that was not developed in state court: his “I don’t want
to talk about it statement.” The district court found that
Rhoades had been given full and fair opportunities to develop
 RHOADES v. HENRY (Baldwin) 2327
facts having to do with this statement in state court, and had
not shown cause and prejudice for failing to do so. In this it
did not err, for reasons we have explained: Rhoades made the
statement himself, therefore “possessed” it, and did not show
that his counsel was unaware of it. Regardless, the district
court concluded that, even if the new evidence were consid-
ered, Rhoades would still not be entitled to relief. The court
reasoned that the discussion in the car involved an unrelated
burglary, not the murder of Stacy Baldwin, and when
Rhoades said he “didn’t want to talk about it, get these hand-
cuffs off” it was in the context of complaining about the
cramped conditions in the car. At most, in the district court’s
view, this amounted to an ambiguous or equivocal statement
regarding Rhoades’s right to silence. As such, the court held,
Rhoades’s statement was analogous to the ambiguous refer-
ence to assistance of counsel that the Supreme Court held in
Davis v. United States, 512 U.S. 452 (1994), was insufficient
to invoke that particular right or to shut down police question-
ing. Id. at 458.

[13] Rhoades maintains that once the district court
assumed that the record had been expanded to include the “I
don’t want to talk about it” statement, it should have pro-
ceeded to determine whether an evidentiary hearing was
required under Townsend v. Sain, 372 U.S. 293 (1963).13 Had
it done so, Rhoades contends that he would have met three of
the Townsend factors — (4), (5), and (6) — and the court
13
An evidentiary hearing in federal habeas proceedings is required (1)
where the merits of a factual dispute were not resolved in state hearings;
(2) the state factual determination was not fairly supported by the record;
(3) the state’s fact-finding procedure was not adequate to afford a full and
fair hearing; (4) there is a substantial allegation of newly discovered evi-
dence; (5) material facts were not adequately developed at the state court
hearing, for which there is no cause or prejudice; or (6) for any reason it
appears that the state trier of fact did not afford the applicant a full and
fair hearing on the facts. Townsend, 372 U.S. at 312-13; Keeney v.
Tamayo-Reyes, 504 U.S. 1, 8-11 (1992) (modifying Townsend’s fifth fac-
tor).
2328 RHOADES v. HENRY (Baldwin)
would have been able to make credibility determinations as
well as develop additional facts. However, as the district court
found and we have discussed, evidence of the “I don’t want
to talk about it” statement is not newly discovered as Rhoades
made the statement himself and his counsel was aware of
information in the Shaw report. This undercuts each of the
factors upon which Rhoades relies. The evidence could rea-
sonably have been presented to the state trier of fact. Id. at
317. Although Rhoades argues that he tried to obtain all of his
statements but the state withheld his en route invocation of the
right to silence, evidence adduced in post-conviction proceed-
ings supports a contrary conclusion. Keeney, 504 U.S. at 8-11
(holding that cause must be shown). Finally, Rhoades does
not suggest any respect in which the state trier of fact
deprived him of a full and fair hearing. Accordingly, Rhoades
was not entitled to an evidentiary hearing under Townsend.

Even if the district court’s ruling on the merits were not
premature, as Rhoades maintains it was, he takes issue with
the court’s analysis. He argues that clear and convincing evi-
dence rebutted the presumption of correctness accorded to the
Idaho Supreme Court’s determination that he understood what
was going on around him. We disagree. While Idaho officers
present at Rhoades’s arrest testified that he was high,
appeared to be under the influence of drugs, and was impaired
at that time, Shaw also testified that Rhoades knew to the dol-
lar how much money he had. This supports the supreme
court’s finding.

Further, Rhoades faults the district court for dividing
Shaw’s interrogation into distinct parts, treating the burglary
separately from the murder. He suggests that instead, the ref-
erences to burglary and murder were connected by the sheer
number of police officers who showed up, which could indi-
cate that more was afoot than just an ordinary burglary, and
by Shaw’s comment at the station, which linked the two. In
the same vein, Rhoades suggests that it would be fair to
assume he knew the subject of Shaw’s questioning en route
 RHOADES v. HENRY (Baldwin) 2329
to the station was really homicide so his invocation of the
right to silence applied to both. No basis appears in the record
to suppose this, however. Shaw was executing an arrest war-
rant for burglary; he referred in the car only to a burglary
about which he and Rhoades had talked in the past, not to
murder; and his comment at the station introduced the murder,
a different topic, for the first time.

Finally, even if the conversation in the car were limited to
the burglary, Rhoades contests the district court’s conclusion
that his Miranda rights were “scrupulously honored” under
Michigan v. Mosley, 423 U.S. 96 (1975), because Shaw never
cut off questioning. See id. at 104. We disagree. Mosley did
not establish a rule of either perpetual duration or of global
reach. As the Court explained, the person being questioned
“can control the time at which questioning occurs, the sub-
jects discussed, and the duration of the interrogation.” Id.
Thus, a person in custody “may waive his right to remain
silent selectively, waiving it with regard to some, but fewer
than all, topics of discussion.” United States v. Garcia-Cruz,
978 F.2d 537, 541-42 (9th Cir. 1992) (rejecting petitioner’s
argument that when he said “I do dictate the gang. And, and,
and, and I’m not, that’s all I can say,” he invoked his right to
silence, construing it instead as a selective revocation of a
prior waiver). Rhoades’s statement in context was at best
ambiguous, indicating that he did not want to talk about the
burglary and wanted the handcuffs off. Shaw stopped asking
Rhoades about the burglary while Rhoades was handcuffed
and cramped in the car. The “I did it” statement came after the
handcuffs were removed and while Rhoades was being
booked at the station, in response to a different point about the
murder. In these circumstances no Mosley error occurred.

[14] We conclude that admitting the second “I did it” state-
ment was not constitutional error.

VIII

[15] Rhoades contends that the trial court gave three
instructions — Nos. 16, 17, and 27 — that are constitutionally
2330 RHOADES v. HENRY (Baldwin)
infirm because they had the effect of lowering the state’s bur-
den of proving every element of the offense beyond a reason-
able doubt. If so, there would be Winship and Cage error, and
the Due Process Clause of the Fourteenth Amendment would
be offended. In re Winship, 397 U.S. 358, 364 (1970); Cage
v. Louisiana, 498 U.S. 39, 39 (1990).

[16] We must decide whether “there is a reasonable likeli-
hood that the jury has applied the challenged instruction in a
way that prevents the consideration of constitutionally rele-
vant evidence.” Morris v. Woodford, 273 F.3d 826, 833 (9th
Cir. 2001). The question is not whether the jury could have
done so, but whether there is a reasonable likelihood it did.
Victor v. Nebraska, 511 U.S. 1, 6 (1994). And we are not to
engage in a “technical parsing” of the language; instead, we
should think of the instructions as the jury would — “with a
commonsense understanding of the instructions in the light of
all that has taken place at trial.” Johnson v. Texas, 509 U.S.
350, 367 (1993) (internal quotations omitted).

[17] Instruction 1614 uses two phrases — “moral evidence”
and “moral certainty” — which to Rhoades both diminishes
the importance of the reasonable doubt standard and offends
Cage. In Cage, the Court addressed an instruction that defined
reasonable doubt in part as “It must be such doubt as would
14
Instruction 16 stated:
A defendant in a criminal action is presumed to be innocent until
the contrary is proved and in case of a reasonable doubt whether
his guilt is satisfactorily shown, he is entitled to an acquittal. This
presumption places upon the State the burden of proving him
guilty beyond a reasonable doubt.
Reasonable doubt is defined as follows. It is not a mere possible
doubt because everything relating to human affairs and depend-
ing on moral evidence is open to some possible or imaginary
doubt. It is that state of the case which after the entire comparison
and consideration of all of the evidence leaves the minds of the
jurors in that condition that they cannot say they have an abiding
conviction to a moral certainty of the truth of the charge.
 RHOADES v. HENRY (Baldwin) 2331
give rise to a grave uncertainty, . . .” and “[A reasonable
doubt] is an actual substantial doubt.” The instruction then
stated: “What is required is not an absolute or mathematical
certainty, but a moral certainty.” The Court held that the
words “substantial” and “grave” connote a higher degree of
doubt than required under the reasonable doubt standard and
that, when considered with a reference to “moral certainty”
rather than evidentiary certainty, could allow a finding of guilt
below that required by the due process clause.15 After Cage,
however, the Court in Victor directly addressed, and upheld,
the constitutionality of a reasonable doubt instruction that had
both phrases and was virtually identical to Instruction 16.
Victor, 511 U.S. at 16-17. We also considered an instruction
identical to the one given here (thus also to the instruction
given in Victor) in another Idaho capital case, Leavitt v.
Arave, 383 F.3d 809 (9th Cir. 2004), and found nothing con-
stitutionally problematic. Id. at 822.

[18] As in Victor, Instruction 16 was accompanied by
instructions that admonished jurors they could only base a
decision on evidence presented in the case, and that they must
have an “abiding conviction” of the truth of the charge. As the
Court explained in Victor, this correctly states the burden of
proof without reference to moral certainty. 511 U.S. at 14-15.
Rhoades suggests that the jury could have taken the “moral
certainty” language to refer to the ethics or morality of the
charged offense, but we do not believe that, reading the
instructions as a whole, it is reasonably likely the jury did
understand the instruction this way. Accordingly, we con-
clude that Instruction 16, in light of the remaining instruc-
tions, passes constitutional muster.

[19] Instruction 17 indicates that the burden of proof is not
15
The Court subsequently clarified that the proper inquiry is not whether
the instruction “could have” been applied in an unconstitutional manner,
but whether there is a reasonable likelihood that the jury did so apply it.
See Victor, 511 U.S. at 6.
2332 RHOADES v. HENRY (Baldwin)
intended to aid anyone who is in fact guilty to escape.16 In
Rhoades’s view, this essentially guts the presumption of inno-
cence and requirement of proof beyond a reasonable doubt,
allowing jurors who did not believe he was legally guilty —
that is, guilty beyond a reasonable doubt — to vote to convict
because they may have thought he was actually guilty. The
state counters that Rhoades’s challenge is Teague-barred
because the Supreme Court has never addressed an instruction
such as Instruction 17, nor is there a consensus among other
courts that any such instruction is unconstitutional. See
Teague v. Lane, 489 U.S. 288 (1989).

We start with Teague. See Caspari v. Bohlen, 510 U.S. 383,
389 (1994) (holding that if the state argues that the petitioner
seeks the benefit of a new rule of constitutional law, the court
must apply Teague before considering the merits). Teague
generally precludes retroactive application of a new rule on
collateral review.17 “[A] case announces a new rule when it
breaks new ground or imposes a new obligation on the States
or the Federal Government. To put it differently, a case
announces a new rule if the result was not dictated by prece-
dent existing at the time the defendant’s conviction became
final.” Teague, 489 U.S. at 301 (citations omitted). The state
relies on Leavitt, where we examined an instruction identical
to Instruction 17 and concluded that a decision invaliding the
instruction for Cage error would be barred by Teague because
Cage, which did announce a new rule, came down after
16
Instruction 17 stated:
The rule of law which clothes every person accused of a crime
with the presumption of innocence and imposes upon the state the
burden of proving his guilt beyond a reasonable doubt is not
intended to aid anyone who is in fact guilty to escape but is a
humane provision of the law intended so far as human agencies
can to guard against the danger of an innocent person being
unjustly punished.
17
There are two exceptions, one for new rules that place conduct beyond
the power of the government to proscribe, the other for watershed rules of
criminal procedure. Neither is implicated here.
 RHOADES v. HENRY (Baldwin) 2333
Leavitt’s conviction was final. The state recognizes that
Rhoades’s conviction became final after the decision in Cage
was rendered, but argues that the same principle nevertheless
applies because there was still no consensus that the instruc-
tion was constitutionally erroneous. We think otherwise, for
it would run afoul of Cage if it were reasonably likely that the
jury interpreted the instructions to allow a verdict on a stan-
dard less than required by the due process clause. Therefore,
the rule would not be retroactively applied.

[20] As we explained in Leavitt, the instruction itself is
disfavored. See 383 F.3d at 819-21. We disapproved it on
direct appeal in Reynolds v. United States, 238 F.2d 460, 463
(9th Cir. 1956), though not on constitutional grounds, as have
other courts. See Leavitt, 383 F.3d at 819-21 (discussing
cases); see also Shaw v. United States, 244 F.2d 930, 938 (9th
Cir. 1957) (disapproving instruction but holding that we are
not bound to reverse in every case where it is given). And we
disapprove it again now. The vice in such an instruction is
that a jury could believe it doesn’t need to apply the presump-
tion of innocence or hold the government to its burden of
proving the defendant’s guilt beyond a reasonable doubt if it
thinks the defendant did it. However, this does not answer the
question before us, which is whether it is reasonably likely
that Instruction 17, in the context of the instructions overall,
actually caused the jury to misapply the presumption of inno-
cence or the state’s burden of proof. We conclude that it did
not.

[21] The trial court gave other instructions that properly
defined the presumption of innocence, the burden of proof,
and the jury’s obligation to honor both. For example, the jury
was told, more than once, that: Rhoades was presumed to be
innocent unless and until he was proven guilty beyond a rea-
sonable doubt; the state had the burden to prove every mate-
rial allegation for each crime charged beyond a reasonable
doubt, and the jury must be satisfied beyond a reasonable
doubt that Rhoades is guilty of each offense; and its decision
2334 RHOADES v. HENRY (Baldwin)
must be based solely on the evidence presented in court, not
on any other consideration. We conclude that read together,
the instructions overall resolved any ambiguity in Instruction
17, thereby leaving no reasonable probability the jury did not
understand they must apply the presumption of innocence and
the reasonable doubt standard to Rhoades’s case.18

[22] Rhoades asserts that Instruction 2719 implicates Win-
ship, but fails to develop any argument why it does. It doesn’t,
as we held in Leavitt. 383 F.3d at 822 (explaining that “the
prosecution need not prove every fact in the case beyond a
reasonable doubt so long as it proves every element beyond
a reasonable doubt”).

IX

Rhoades asserts that trial counsel was ineffective in allow-
ing a ballistics expert to disclose his reports to the prosecu-
tion. The defense first retained Richard Fox, who would have
testified about the unreliability of ballistics evidence generally
but was equivocal on whether the bullet from Baldwin’s body
matched the gun linked to Rhoades. Parmenter then consulted
Ned Stuart to do a second comparison. Stuart concluded the
bullet was fired from the gun associated with Rhoades, and
sent his findings to Parmenter and to the prosecution. After
the prosecution’s expert testified at trial, the prosecutor indi-
18
The Second Circuit reached a similar conclusion in DelValle v. Arm-
strong, 306 F.3d 1197 (2d Cir. 2002), where a petitioner challenged a sim-
ilar instruction and “[t]he trial court repeatedly emphasized throughout its
jury instructions that appellant was entitled to a presumption of innocence
and that the state bore the burden of proving each element of the crime
beyond a reasonable doubt.” Id. at 1201.
19
Instruction 27 stated:
It is not necessary that all the facts and circumstances surround-
ing the testimony and evidence that is given on behalf of the State
shall be established beyond a reasonable doubt. All that is neces-
sary is that all the facts and circumstances in evidence, together,
shall establish the defendant’s guilt beyond a reasonable doubt.
 RHOADES v. HENRY (Baldwin) 2335
cated that he would present Stuart’s findings in rebuttal if Fox
were called. Parmenter did not call Fox.

[23] The district court found that Rhoades could not estab-
lish prejudice because Fox’s testimony would not have pro-
vided anything more than incremental assistance to the
defense and much of the information that would have been
presented through Fox was in evidence anyway. We agree.
Parmenter admitted to the trial court that Fox’s testimony
would not have contradicted the government expert’s. Par-
menter also testified at his deposition that Fox’s theories were
out of the mainstream and likely to be unhelpful. And coun-
sel’s cross-examination of the prosecution’s expert brought
out the weaknesses in ballistics testing as Fox’s testimony
would have done, so the same ground was covered.

Rhoades’s corresponding claim that he should have been
given an evidentiary hearing is unsupported by argument. We
will not find an abuse of discretion in these circumstances.

X

Rhoades claims that counsel was ineffective in failing to
investigate, develop, and present mental state issues.20
Although Rhoades asserts that Parmenter was ineffective in
handling mental state issues at trial as well as at sentencing,
he develops no argument with respect to the guilt phase.
Accordingly, we take it that Rhoades means to argue that at
no time during the proceeding did counsel perform adequately
20
Having previously dismissed Rhoades’s claims of ineffective assis-
tance of trial counsel for procedural default, the court reversed course in
light of our decision in Hoffman v. Arave, 236 F.3d 523 (9th Cir. 2001),
holding that Idaho’s forty-two day limit for seeking post-conviction relief
during which no new counsel was appointed frustrated the right to raise
claims of ineffective assistance in state court. Id. at 530-36. It allowed
Rhoades to develop the factual basis of his claim, and to file a proffer in
support. Having considered the proffer, the court found no evidentiary
hearing required and denied relief on the merits.
2336 RHOADES v. HENRY (Baldwin)
with respect to mental health issues pertinent to sentencing.
Otherwise, we deem any guilt-phase claim to be abandoned.
See Jones v. Wood, 207 F.3d 557, 562 n.2 (9th Cir. 2000).
Relatedly, we must consider whether the district court abused
its discretion in denying an evidentiary hearing on this claim.

A

Parmenter’s deposition was taken in May 1996 in the fed-
eral habeas proceedings. It shows that before trial, Parmenter
spoke with a psychiatrist retained by Rhoades’s attorneys in
the Michelbacher and Haddon cases, and found out the results
of this doctor’s testing did not support an insanity plea. Based
on this, his own knowledge of Rhoades, and his experience
working with people at a mental hospital, Parmenter did not
pursue further psychological testing. In preparation for sen-
tencing, he talked to a lot of family members, several
acquaintances, and to Rhoades’s former employer. He spent
twenty to twenty-five hours on it. Parmenter submitted a pre-
sentence report prepared by Daryl Gardner of Idaho Protec-
tive Specialists that included a statement from Rhoades
professing his innocence; Rhoades’s explanation for some
prior arrests; and a brief description of his family, education,
and relationships. In general, it highlighted Rhoades’s posi-
tive characteristics, in particular with females. It also
addressed Rhoades’s childhood polio, how he was discrimi-
nated against due to his family’s reputation, and his drug and
alcohol use.

The state submitted a presentence report as well. It outlined
Rhoades’s criminal record, family information, interests and
activities, education, and employment. Like Rhoades’s, the
state’s report noted that he had polio as a child, that he some-
times had to fight just because his name was Rhoades, that he
was not aggressive toward people or animals, that he often
babysat his nieces and nephews, and that he was a skilled
sheetrocker. Unlike Rhoades’s report, the state’s noted that
Rhoades had applied to the Army and Marine Corps but had
 RHOADES v. HENRY (Baldwin) 2337
been turned down due to polio. In addition, it included a sec-
tion on Rhoades’s health, reciting that Rhoades denied having
any mental or emotional problems, has a balance problem as
a result of his polio, and had used (and abused) drugs of all
kinds for nineteen years. Finally, the state’s report indicated
that collateral contacts and family members described
Rhoades’s youth and early adulthood as “comparatively nor-
mal.”

At the sentencing hearing, the state called no witnesses and
Parmenter called twelve (Rhoades’s mother, father, two sis-
ters, two paternal aunts, and two paternal uncles; two friends;
and two jail officials). Some noted Rhoades’s childhood polio
and foot surgeries, and how he was left poorly coordinated.
Four mentioned his drinking, though they also indicated he
was a less troublesome drunk than other members of his fam-
ily. Several witnesses discussed how Rhoades was a good
worker, and the jailors testified that he was well-behaved.

Parmenter’s closing argument reiterated Rhoades’s redeem-
ing qualities and good character traits, noted that he hasn’t
had the easiest life, and expressed his own view that it was
relatively tough growing up as a Rhoades. The state empha-
sized the circumstances of Baldwin’s kidnapping and murder,
and Rhoades’s recent murder and kidnapping convictions.

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
2338 RHOADES v. HENRY (Baldwin)
finds, beyond a reasonable doubt, at least one of five statutory
aggravating circumstances. See id. §§ 18-4504, 4505.

The trial judge found five aggravating circumstances on the
murder conviction beyond a reasonable doubt: (1) Rhoades
was previously convicted by jury of the kidnapping and first
degree murder of Susan Michelbacher, and pled guilty to the
second degree murder of Nolan Haddon. Id. § 19-2515(g)(1).
(2) The murder was especially heinous, atrocious or cruel,
manifesting exceptional depravity, in that Rhoades cased the
convenience store where Baldwin worked, snatched her from
her place of employment, drove her to a secluded spot,
attempted to attack her, and shot at her several times, finally
hitting her as she was on her knees with her back towards him
trying to escape. Id. § 19-2515(g)(5). (3) Rhoades exhibited
utter disregard for human life; he shot at the victim several
times, finally striking her in the back, and also left Baldwin
alive to die in the cold one to one and a half hours later. Id.
§ 19-2515(g)(6). (4) Rhoades was guilty of murder in the first
degree in perpetration or attempt to perpetrate rape, and/or
robbery and/or kidnapping, planned to do these things, and in
addition, used a firearm. Id. § 19-2515(g)(7). (5) Rhoades has
exhibited a propensity to commit murder which will constitute
a continuing threat to society; the Baldwin case is one of three
similar type killings in which he had his victims subdued at
gunpoint, and had no reason to be emotionally involved. Id.
§ 19-2515(g)(8).

With respect to the kidnapping conviction, the court found
three aggravating circumstances beyond a reasonable doubt:
(1) Baldwin would never willingly allow anyone to molest her
or take her any place against her will; taking her to a secluded
place, and the subsequent attack and shooting, which caused
her to lay wounded for over an hour before she died, consti-
tutes torture and grievous physical injury. Idaho Code § 18-
4505(6)(a). (2) Rhoades knowingly created a great risk of
death to Baldwin. Id. § 18-4505(6)(b). (3) Rhoades did not
know the victim; considering her sensibilities, the abduction
 RHOADES v. HENRY (Baldwin) 2339
was especially heinous, atrocious and cruel, and manifested
exceptional depravity. Id. § 18-4505(6)(d).

The trial judge acknowledged mitigating circumstances
including age, background, gentleness, and drug use, as well
as the others that were argued, and found the historical facts
in accord with the presentence reports. The court observed
(among other things) that, although his family and friends say
Rhoades is easy going and gentle, he did intend to rob, kid-
nap, and kill Baldwin and his gentleness did not carry over to
the persons he abducted and later killed. It concluded that the
mitigating circumstances “do not outweigh the gravity of the
statutory aggravating circumstances.” Responding to
Rhoades’s post-conviction argument that the court had collec-
tively weighed the mitigating circumstances against all aggra-
vating circumstances, the trial judge clarified that he weighed
the mitigating circumstances collectively against each aggra-
vating circumstance. Thus, the fact that Rhoades was previ-
ously convicted of another murder outweighed the mitigating
circumstances.

In addition to taking Parmenter’s deposition in the federal
habeas proceeding, Rhoades submitted a 1000-page proffer
that included declarations from Craig Beaver, Ph.D., a
neuropsychologist, Pablo Stewart, M.D., a psychiatrist and
neurologist, two police officers, members of Rhoades’s fam-
ily and friends; medical records for Rhoades and his family;
criminal records for his father and other family members; his
elementary school transcript; and a family tree depicting drug
and alcohol abuse, suicide, intelligence, mental health, and
criminal convictions.

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
2340 RHOADES v. HENRY (Baldwin)
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;21 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
21
No factual allegations with respect to either incestuous relationship in
which Rhoades participated, one with his sister (as recently as a few days
before his Nevada arrest) and another with an aunt after his uncle commit-
ted suicide, are made in the Third Amended Petition. We note that
Rhoades had asked for a similar allegation in his petition in the Michelb-
acher case to be deleted. In any event, it is unlikely that this would have
helped his mitigation case. See Idaho Code § 18-6602 (1988) (defining
incest and providing punishment for up to ten years imprisonment).
 RHOADES v. HENRY (Baldwin) 2341
major mental illness and neuropsychological impairment;
multiple members of Rhoades’s family have been institution-
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 DS-
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 faults Parmenter for painting him as a fully aware
and alert person in control of his faculties who chose to do
what he was accused of doing. In Rhoades’s view, this was
the result of counsel’s failure to conduct or complete an inves-
tigation, whereas a proper investigation would have uncov-
ered mitigating evidence about his growing up in a family
context of physical and emotional violence, alcohol, drugs,
and sexual abnormality of the sort exemplified in the factual
proffer that he made to the district court. The district court
concluded that even if the factual allegations in the proffer
were true, Rhoades failed to establish a Sixth Amendment
claim under Strickland. While the court believed that Rhoades
had alleged sufficient facts to show at least a colorable claim
that counsel’s investigation fell below an objective standard
of reasonableness for a capital case in the late 1980s, it held
there was no reasonable probability that had counsel con-
2342 RHOADES v. HENRY (Baldwin)
ducted the type of mitigation investigation Rhoades believes
he should, the outcome of the sentencing hearing would have
been different. In the court’s opinion, the aggravating circum-
stances were too strong, and the new mitigating evidence
added too little, to create a reasonable probability of a differ-
ent outcome.

[24] “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)
(internal quotation marks and brackets omitted), it is unneces-
sary to determine whether Parmenter’s performance was defi-
cient, 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.”). We fol-
low this course.

To demonstrate actual prejudice under Strickland, a “ ‘de-
fendant must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the pro-
ceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the out-
come.’ ” Wiggins v. Smith, 539 U.S. 510, 534 (2003) (quoting
Strickland, 466 U.S. at 694). “To assess that probability, we
consider the totality of the available mitigation evidence —
both that adduced at trial, and the evidence adduced in the
habeas proceeding — and reweigh it against the evidence 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 “in-
effective 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).
 RHOADES v. HENRY (Baldwin) 2343
[25] We agree with the district court’s analysis. The aggra-
vating circumstances that include two other murders are
extremely strong. While the new evidence shows a more com-
plete picture of Rhoades’s immediate and extended family
and their abusive, often criminal, and alcoholic lives, even so,
as the court found, there is no persuasive evidence that
Rhoades himself was abused as a child, abandoned, placed in
the state’s custody, or otherwise institutionalized. Also as the
court found, despite the passage of twenty years, the expert
declarations do not conclusively fill in the blanks about
Rhoades’s mental or emotional state.

Beaver opined only that alcoholism and suicides in
Rhoades’s family “very likely” play a genetic role in his men-
tal health; that he “was genetically loaded for substance
abuse”; and that his chronic use of methamphetamine “may
well” have damaged his brain. Stewart’s working assessment
is similarly indeterminate. For example, he stated that
Rhoades’s family history places him “at substantial risk” of
developing his own mental health problems, and that he
“may” have been born with some mental deficiencies. The
mitigating value of Stewart’s most concrete assessment, that
Rhoades “does suffer” from Postraumatic Stress Disorder
(PTSD), is lessened because his diagnosis admittedly does not
satisfy the requirements of DSM-IV for this condition. Cf.
Comer v. Schriro, 463 F.3d 934, 944 (9th Cir. 2006) (con-
cluding the district court did not clearly err in determining the
petitioner did not have PTSD in light of an expert’s inability
to apply the DSM-IV criteria accurately). There also is no
suggestion that Rhoades kidnapped, tried to rape, or murdered
Baldwin while in any kind of a PTSD-induced disassociative
state.

[26] Speculation about potential brain dysfunctions or dis-
orders “is not sufficient to establish prejudice.” Bible v. Ryan,
571 F.3d 860, 871 (9th Cir. 2009); see also Raley, 470 F.3d
at 802-03 (finding no prejudice in part because none of the
petitioner’s experts “conclusively opined that [he] had a men-
2344 RHOADES v. HENRY (Baldwin)
tal defect”); Smith v. Mitchell, 348 F.3d 177, 201-02 (6th Cir.
2003) (finding no prejudice, and that new mitigating evidence
of organic brain damage was “not compelling” as the petition-
er’s expert concluded there was only a “likelihood of neuro-
logical impairment”). In the main, both the Beaver and
Stewart reports are speculative. They talk in terms of condi-
tions that Rhoades “likely” has or “may” have. By contrast,
expert opinions in cases where prejudice has been found iden-
tified injuries or conditions that the petitioner actually has.22
Rhoades is certainly correct that a formal diagnosis is not nec-
essary before an opinion may be considered, but this is not an
issue in this case because the district court considered both
reports, as do we. There is a difference between rejecting a
proffered opinion, and concluding that it is not weighty
enough to change the outcome. Rhoades is also correct that
the quantity and quality of mitigation information in his
experts’ reports exceeds what was uncovered and presented
by trial counsel. But this, too, misses the mark. As the
Supreme Court recently reminded us, the determinative com-
parison is between “the totality of the available mitigation”
and “the evidence in aggravation.” Porter, 130 S. Ct. at 453-
54.
22
See, e.g., Rompilla v. Beard, 545 U.S. 374, 392 (2005) (post-
conviction experts found petitioner “ ‘suffers from organic brain damage,
an extreme mental disturbance significantly impairing several of his cog-
nitive functions’ ”); Wiggins, 539 U.S. at 518 (“’[D]etailed social service
records [ ] recorded . . . [petitioner’s] borderline retardation.’ ”); Williams
v. Taylor, 529 U.S. 362, 370 (2000) (post-conviction testimony showed
petitioner “was ‘borderline mentally retarded,’ had suffered repeated head
injuries, and might have mental impairments organic in origin”); Lam-
bright v. Schriro, 490 F.3d 1103, 1111-12 (9th Cir. 2007) (post-conviction
experts agreed petitioner “suffers from a depressive disorder and from
polysubstance dependency” and petitioner’s expert concluded he “suffers
from a personality disorder with antisocial, borderline, and inadequate fea-
tures”); Stankewitz v. Woodford, 365 F.3d 706, 718 (9th Cir. 2004) (three
post-conviction experts agreed petitioner “is brain-damaged” and one
expert concluded he “is borderline retarded” and “suffers from significant
brain dysfunction”).
 RHOADES v. HENRY (Baldwin) 2345
[27] The sentencing court was aware of, but not persuaded
by, several mitigating circumstances that are prominently fea-
tured in the proffer. It learned about Rhoades’s drug and alco-
hol abuse from a variety of sources. The court also knew
about Rhoades’s childhood health problems, including polio
and foot surgeries, and the social and physical difficulties they
caused. It was informed that Rhoades had limited education
and was turned down by the armed forces. It was apprised of
Rhoades’s redeeming qualities by family and friends, who
described him as a gentle, caring, and likable person until he
started abusing drugs. The judge expressly recognized these
positive traits, but concluded that they did not carry over to
the persons Rhoades abducted and later killed. Thus, much of
the newly adduced evidence is cumulative, and “adding it to
what was already there would have made little difference.”
Belmontes, 130 S. Ct. at 387.

Even the more complete picture portrayed in the proffer of
Rhoades’s dysfunctional family with its alcoholism, abuse,
aberrant sexual behavior, and criminal conduct does not
depict a life history of Rhoades himself that is nightmarish as
it was for the petitioners in cases such as Rompilla, Wiggins,
and Williams where newly produced evidence in mitigation
has carried the day. In Rompilla, the additional mitigation evi-
dence showed that the petitioner was beaten by his father with
his hands, fists, leather straps, belts and sticks, was subjected
to yelling and verbal abuse, was locked by his father “in a
small wire mesh dog pen that was filthy and excrement
filled”; was isolated as a child without contact with other chil-
dren; and suffered from organic brain damage that signifi-
cantly impaired several of his cognitive functions. 545 U.S. at
391-92. The aggravating evidence was a murder committed
during another felony and by torture, and a prior conviction
for rape, burglary, and theft. In Wiggins, the petitioner experi-
enced severe privation and abuse in his first six years of life,
and physical torment, sexual molestation, and repeated rape
thereafter in foster care. The aggravating evidence consisted
solely of his crime, drowning a 77-year old woman in a bath-
2346 RHOADES v. HENRY (Baldwin)
tub and ransacking her apartment. In Williams, new evidence
showed the petitioner had been severely and repeatedly beaten
by his father, had been committed to the custody of the social
services bureau, had no schooling beyond sixth grade, and
was borderline mentally retarded. The aggravating evidence
included a previous conviction for armed robbery, burglary,
and grand larceny before the murder for which he received the
death penalty, and after it two auto thefts and violent assaults
on elderly victims as well as an arson in jail.23 By comparison,
Rhoades’s newly proffered evidence does not show that he
was subjected to physical or verbal abuse as a child, or that
he was abandoned or mistreated, placed within the state’s cus-
tody, or institutionalized. While it is not necessary for abuse
to have been aimed at Rhoades in order to be mitigating, that
there is no evidence it was makes his case less compelling in
light of the strength of the aggravating circumstances than the
Rompilla, Wiggins, and Williams line of cases.

[28] The aggravating circumstances — a conviction for
kidnapping, first degree murder, rape, and the infamous crime
against nature (Michelbacher), and a conviction for second
degree murder (Haddon), in addition to how Rhoades took
Stacy Baldwin from work against her will, drove her to a
secluded spot, tried to rape her, shot her in the back, and left
her to die — are extraordinarily powerful. The new evidence
in mitigation is tenuous. On balance, we conclude that
23
Cf. Porter, 130 S. Ct. at 448-51 (counsel failed to present evidence the
petitioner was his violent father’s favorite target, had once been shot at by
his father who beat him when the shot missed, had heroic military service,
and suffered from brain damage that could manifest in violent, impulsive
behavior; he had been convicted of another violent felony committed dur-
ing a burglary and the same course of events that resulted in the murder
for which he received the death penalty); Pinholster v. Ayers, 590 F.3d
651, 674-79 (9th Cir. 2009) (en banc) (the jury did not hear that petitioner
suffered vicious and repeated physical abuse from his step-father and
grandmother; had suffered organic, pre-frontal lobe brain damage; and
was placed in a home for emotionally disturbed boys then in a state mental
hospital).
 RHOADES v. HENRY (Baldwin) 2347
Rhoades’s newly proffered facts, taking them as true, add too
little, and the aggravating circumstances are too strong, to
make it reasonably probable that the sentencing decision
would have been different but for counsel’s performance.

[29] Consequently, Rhoades cannot satisfy the prejudice
prong of Strickland, so his claim of ineffective assistance of
counsel for failure to investigate and present mental state
issues at sentencing fails.

C

Rhoades asserts that he was entitled to an evidentiary hear-
ing on this claim, but provides no argument in support. We
take it he has none to make. Rhoades had an opportunity to
develop a factual record and submitted a substantial proffer
that the district court accepted. It found that even if the factual
proffer were credible and proved, Rhoades could not establish
prejudice. As explained, we agree. Rhoades points to no addi-
tional evidence that would be presented if an evidentiary hear-
ing were held. In short, no abuse of discretion appears.

XI

We must decide whether imposing the death penalty for
first-degree kidnapping, when the perpetrator kills the victim,
violates the Eighth Amendment.

[30] Rhoades maintains that because Idaho’s kidnapping
death penalty statute does not require the taking of a life,
imposing a capital sentence is grossly disproportionate to the
offense and is invalid under the Eighth Amendment and
Coker v. Georgia, 433 U.S. 584 (1977), Eberheart v. Georgia,
433 U.S. 917 (1977), and Enmund v. Florida, 458 U.S. 782
(1982).24 In Coker, the Supreme Court held that a death sen-
24
Death is not an element of first degree kidnapping in Idaho, Idaho
Code § 18-4502. The death penalty may be imposed if the sentencing
court finds at least one of several aggravating factors, none of which
requires death. Id. § 18-4504(1); 18-4505(6).
2348 RHOADES v. HENRY (Baldwin)
tence is disproportionate punishment with respect to rape of
an adult woman, noting that the rapist, as such, does not take
human life. 433 U.S. at 598. The same day, the Court applied
Coker to kidnapping and rape of an adult woman. See Eberh-
eart, 433 U.S. at 917. The Court again applied Coker in
Enmund to invalidate imposition of the death penalty for aid-
ing and abetting a felony that results in death when the defen-
dant himself does not kill, attempt to kill, or intend that killing
take place. Enmund, 458 U.S. at 801. See also Kennedy v.
Louisiana, 128 S. Ct. 2641, 2646 (2008) (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”).

[31] The district court held that neither Coker, Eberheart,
nor Enmund bars imposition of the death penalty for Bal-
dwin’s kidnapping because the kidnapping did, in fact, result
in death. Rhoades points out that the trial court did not con-
sider Baldwin’s death to be an aggravating circumstance in
imposing the death penalty, but the trial court did find that
Rhoades intended to shoot and kill Baldwin when he kid-
napped her, and that he did shoot her and she died. This dis-
tinguishes Rhoades from Coker, Eberheart, and Enmund, who
neither intended to kill their victims nor killed them. As Ken-
nedy indicates with reference to these cases, the Court “has
held that the death penalty can be disproportionate to the
crime itself where the crime did not result, or was not
intended to result, in death of the victim.” 128 S. Ct. at 2650.
Here, Rhoades intended for Baldwin to die when he kid-
napped her, and he in fact took her life. When the kidnapper
intends murder and in fact commits murder, the moral distinc-
tion between a “murderer” and a “robber,” “rapist,” or “kid-
napper” that underlies the rationale in Coker, Eberheart, and
Enmund dissolves. In these circumstances one is not left with
an “abiding conviction” that the death penalty is excessive.
Coker, 433 U.S. at 598.

Rhoades also claims that the death sentence for kidnapping
involved “double-counting” the fact of Baldwin’s murder
 RHOADES v. HENRY (Baldwin) 2349
contrary to Idaho law. However, state-law issues are not cog-
nizable on federal habeas review. See Estelle v. McGuire, 502
U.S. 62, 67-68 (1991). Therefore, we decline to consider it.

XII

Rhoades asserts that the three statutory aggravating circum-
stances for kidnapping violate the Eighth Amendment
because they permit imposition of death for a crime less than
murder where the victim is an adult. He makes no argument
in support. To the extent he challenges the aggravators for
allowing the death penalty for less than murder, we have
explained why it was not unconstitutionally imposed as to
Rhoades. Whether Idaho’s first degree kidnapping scheme is
constitutional in some other case where death does not result
is not before us. Beyond this, we decline to suppose what
Rhoades has in mind.

XIII

[32] Rhoades next submits that the evidence was constitu-
tionally insufficient to prove the kidnapping aggravators. So
long as any single aggravator is supported, constitutional
infirmities as to the remaining ones are harmless. See Pizzuto
v. Arave, 280 F.3d 949, 970-71 (9th Cir. 2002).

[33] We start with the circumstance in Idaho Code § 18-
4505(6)(a), “torture, maiming or the intentional infliction of
grievous mental or physical injury.” Rhoades suggests there
is no evidence showing intentional infliction of extreme and
prolonged pain, which is the definition of torture. Regardless,
there is ample evidence to support the finding with respect to
intentional infliction of grievous mental or physical injury.
Rhoades shot Baldwin three times and fired other shots at her
while she was lying on the ground; Baldwin had sand under
her fingernails and scattered scapes; and she may have lin-
gered, wounded, for an hour or so. At the archery range,
Rhoades told Baldwin “Pray, you fucking cunt.” Rhoades also
2350 RHOADES v. HENRY (Baldwin)
argues that the abduction itself was not aggravated; he points
out that there was no sign of a struggle inside the store, and
that the trip to the site where the body was found would take
about four minutes. But Holm testified that Rhoades told him
that Baldwin was screaming and hysterical in the truck. Fur-
ther, Rhoades contends that the shooting cannot be used to
establish the physical injury component 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, a rational fact-finder
could find intentional infliction of grievous mental or physical
harm based on Baldwin’s suffering before she died. To the
extent Rhoades also makes a variation of his “double-
counting” argument that turns on Idaho law, we do not reach
it; to the extent he makes some other argument, he offers no
authority in support. Finally, Rhoades attacks the credibility
of witnesses such as Holm and the pathologist whose testi-
mony supports the trial court’s determination. But assessing
the credibility of witnesses and weighing the evidence is for
the trier of fact who, we presume, resolved both in favor of
finding the aggravator.

[34] After viewing the evidence in the light most favorable
to the prosecution, we conclude that any rational trier of fact
could have found aggravating factor (a) beyond a reasonable
doubt. Lewis v. Jeffers, 497 U.S. 764, 781 (1990) (applying
the Jackson v. Virginia, 443 U.S. 307 (1979), standard to fed-
eral habeas review of a state court’s finding of statutory
aggravating factors). Given sufficiency of the evidence on this
aggravator, we have no need to consider the others.

XIV

[35] Rhoades asserts that his appellate counsel rendered
ineffective assistance by failing to raise the unconstitutional-
ity of the death penalty for kidnapping, and correspondingly
that the district court should have held an evidentiary hearing
on this claim. The only argument in support is that otherwise,
 RHOADES v. HENRY (Baldwin) 2351
his death sentence for first degree kidnapping would have
been reversed. Absent anything called to our attention about
what counsel thought or how Idaho would likely have
responded to such an argument, we cannot but conclude that
counsel’s performance was neither deficient nor prejudicial.
See Knowles v. Mirzayance, 129 S. Ct. 1411, 1414 (2009)
(holding that counsel’s failure to assert a defense that was “al-
most certain to lose” did not violate “any ‘prevailing profes-
sional norms’ of which the Court is aware”).

XV

Victim impact statements were submitted as part of the pre-
sentence investigation report to the trial court. Baldwin’s hus-
band, for example, stated that “he wants the maximum
sentence given to the man who killed Stacy”; that he believes
in the death sentence; and that he didn’t want Rhoades to do
this to anyone else. Her mother-in-law related that the family
favors a death sentence. Her mother stated that she hoped
Rhoades “burns in hell for what he did to Stacy.” She added
that she was glad Stacy fought him, and that she approves of
capital punishment. Rhoades contends that consideration of
such statements offends his Eighth Amendment rights under
Booth v. Maryland, 482 U.S. 496 (1987). In Booth, the
Supreme Court held that the Eighth Amendment precludes (1)
a description of the personal characteristics of the victim or
emotional trauma suffered by the victim’s family, and (2) a
formal presentation of the family’s opinions of the crime. Id.
at 504-05, 508-09. Booth was overruled in part by Payne v.
Tennessee, 501 U.S. 808 (1991), where the Court receded
from a per se rule rejecting admissibility of the first type of
evidence. Id. at 827. Both the Idaho Supreme Court and the
district court held that any Booth error in this case was harm-
less.

[36] The family statements that Rhoades finds objection-
able seem to us to fall more into the second — or still pre-
cluded — category than into the first. However, Booth’s
2352 RHOADES v. HENRY (Baldwin)
concern that victim impact statements “can serve no other
purpose than to inflame the jury and divert it from deciding
the case on the relevant evidence concerning the crime and
the defendant,” 482 U.S. at 508, is not the same when, as
here, a judge does the sentencing. We assume that the trial
judge applied the law — Booth, at the time25 — and consid-
ered only evidence that he knew was admissible. See Landri-
gan v. Stewart, 272 F.3d 1221, 1230 (9th Cir. 2001); Smith v.
Stewart, 140 F.3d 1263, 1272 (9th Cir. 1998) (rejecting a sim-
ilar argument as the judge can “separate the wheat from the
chaff”). Thus, there was no error.

XVI

[37] Rhoades’s last challenge is to Idaho Code § 19-2719,
which imposes a forty-two day time limit for the filing of
post-conviction proceedings in capital cases whereas non-
capital defendants have five years within which to pursue
post-conviction relief. He submits this violates his right to due
process and equal protection, but without explication. We
resolved this otherwise in Hoffman v. Arave, 236 F.3d 523
(9th Cir. 2001), where we affirmed as to all challenges to
Idaho Code § 19-2719 except to the extent it applied to inef-
fective assistance claims when no new counsel had been
appointed.

AFFIRMED.

25
Booth came down June 15, 1987. Rhoades was sentenced May 13,
1988.