Greenway v. Schriro

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RICHARD HARLEY GREENWAY,  No. 07-99021
Petitioner-Appellant,
v.  D.C. No.
CV-98-00025-RRC
DORA B. SCHRIRO,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding

Argued and Submitted
January 13, 2010—San Francisco, California

Filed July 28, 2011

Before: Mary M. Schroeder, Johnnie B. Rawlinson, and
Carlos T. Bea, Circuit Judges.

Opinion by Judge Schroeder

9699
 GREENWAY v. SCHRIRO 9703

COUNSEL

Therese M. Day, Assistant Federal Public Defender, Phoenix,
Arizona, for petitioner/appellant Richard Harley Greenway.

Jeffrey Alan Zick, Assistant Attorney General, Phoenix, Ari-
zona, for respondent-appellee Dora B. Schriro.

OPINION

SCHROEDER, Circuit Judge:

Petitioner, Richard Harley Greenway, was convicted and
sentenced to death in 1989 for the 1988 murders of Lili
Champagne and her daughter, Mindy Peters. After the Ari-
zona state courts denied Greenway’s post-conviction petition
for relief, he filed a petition for federal habeas relief under 28
U.S.C. § 2254, which the district court denied. On appeal,
Greenway is seeking relief on a number of different claims,
but we affirm the denial of all except those relating to ineffec-
tive assistance of counsel at trial and on direct appeal.
9704 GREENWAY v. SCHRIRO
Greenway’s most colorful claim is that the trial judge
should have been disqualified from hearing the case because
the trial judge himself once briefly worked with the man who
had been the husband of victims Lili Champagne and the
father of Mindy Peters. The evidence Greenway presented
shows, at best, however, that the judge may have had a brief
working relationship eighteen years before the trial, with the
man who had, by the time of trial, been dead more than eleven
years. We agree with the district court that there was no show-
ing of any impropriety or appearance of impropriety.

We affirm the denial of the claims of ineffective assistance
of counsel at sentencing because we conclude they lack merit.
We agree with the district court that the state courts ade-
quately considered all mitigating evidence in sentencing
Greenway to death, and therefore affirm denial of that claim
as lacking merit as well.

The record with respect to the claims of ineffective assis-
tance at trial and on appeal is procedurally complex, but we
conclude those claims are not procedurally barred and remand
for the district court to consider their merits. After the state
trial court denied Greenway’s initial post-conviction petition,
the Supreme Court of Arizona declined to accept jurisdiction
of Greenway’s Petition for Special Action to consider those
claims, but it did so without prejudice to Greenway’s filing a
motion with the trial court for reconsideration. Greenway then
went back to the trial court to file the motion and to amend
his initial post-conviction petition to include additional claims
of ineffective assistance of counsel at trial and on direct
appeal. The trial court, however, denied the motion and
declined to consider these additional claims on the ground
that they had been offered too late and were barred by waiver.
The district court held this was an adequate and independent
state ground justifying dismissal of the claims. The relevant
state rule, Rule 32.2(a)(3) of the Arizona Rules of Criminal
Procedure, however, provides for waiver of claims not raised
in “previous collateral proceedings.” Since Greenway was
 GREENWAY v. SCHRIRO 9705
still pursuing his first post-conviction petition when, in accor-
dance with the suggestion of the state supreme court, he
sought to amend his first petition, there was no “previous col-
lateral proceeding.” Hence, there was no adequate and inde-
pendent state ground supporting the trial court’s refusal to
hear the claims of ineffective assistance at trial and on direct
appeal. We therefore remand only those claims for consider-
ation by the district court.

I. FACTS AND PROCEDURAL BACKGROUND

A. The Crimes

The facts surrounding the cold-blooded murders of Lili
Champagne and Mindy Peters are contained in the Arizona
Supreme Court’s opinion. State v. Greenway, 823 P.2d 22
(Ariz. 1991). We summarize them here.

On March 28, 1988, Pima County Sheriffs found a burned
1983 Porsche, which officials determined belonged to Frank
and Lili Champagne. A deputy went to inform the Cham-
pagnes at their home and discovered the bodies of Lili Cham-
pagne and her daughter, Mindy Peters. Lili had been shot
once behind the knee and once between the eyes. Mindy had
been shot twice, once in the jaw and once behind the ear. Id.
at 25.

Following a news bulletin asking for information regarding
the victims or the Porsche, Greenway’s sister notified homi-
cide detectives that Greenway knew something about the inci-
dent. After detectives picked up Greenway at his sister’s
house, Greenway told detectives that he had met a man named
“Red” at a 7-Eleven convenience store, and that Red had
given both Greenway and his co-defendant, Chris Lincoln, a
ride in a white Porsche. Id. at 25-26.

The detectives then took Greenway and Lincoln to the
police station for questioning. Greenway and Lincoln were
9706 GREENWAY v. SCHRIRO
questioned separately. Lincoln confessed to stealing and burn-
ing the Porsche, and he implicated Greenway. During further
questioning, Lincoln confessed to participating in the killings
and again implicated Greenway. Greenway and Lincoln were
then both arrested and charged with several counts, including
the murders of Lili and Mindy.

Greenway was placed in a cell with Anthony Schmanski.
Schmanski, according to his trial testimony, asked Greenway
why Greenway was in jail, and Greenway answered, “Well,
I just blew two people away” because “they had seen [my]
face.” Id. at 26. Further investigation revealed that Greenway
had attempted to sell the victims’ car stereo to Brian Mize,
Greenway’s co-worker. According to Mize’s trial testimony,
Greenway told Mize that Greenway went to the victims’
house and after taking “some stuff” from the house, Green-
way sent his co-defendant out and then shot the victims.
Greenway told Mize that, after he shot the older lady, “her
body rolled over and blood gushed out of her head.” Id.

There was also evidence that Greenway knew the victims.
He met Mindy late in 1987 at a local Jack-in-the-Box fast
food restaurant, and met Lili soon after, when Greenway went
to Lili’s house to return Mindy’s wallet. Id.

B. Trial and Sentencing Proceedings

Greenway was charged with two counts of first degree
murder, one count of first degree burglary, one count of
armed robbery, one count of theft by control, and one count
of arson. Prior to trial, the trial court ordered a mental exami-
nation of Greenway. Dr. Ronald David, a psychiatrist, inter-
viewed Greenway about his past history, his family
background, drug use, the circumstances surrounding the
crimes, and asked Greenway questions in order to ascertain
his mental status. Dr. David also asked Dr. Harry Saslow, a
psychologist, to conduct a psychological evaluation of Green-
way.
 GREENWAY v. SCHRIRO 9707
Greenway’s trial began on March 14, 1989, and Judge Wil-
liam Scholl presided. The guilt phase lasted only three days,
and the jury returned a guilty verdict on all counts on March
17, 1989. In accordance with Arizona law at the time, the trial
judge made the life or death sentencing decision after an
aggravation-mitigation hearing. In this case, that hearing took
place on May 24, 1989, and extended over a two-day period.

The defense originally wanted to call Dr. David to testify
at the sentencing hearing, because he was familiar with
Greenway’s mental deficiencies, social problems, and misera-
ble family background. Dr. David, however, was also familiar
with Greenway’s admissions about how he committed the
crimes, so the trial court ruled that if Dr. David were called,
he could be cross-examined on Greenway’s incriminating
statements. The defense therefore chose not to call Dr. David,
and instead made a proffer that Dr. David would have testi-
fied that Greenway’s I.Q. was low, that he had an immature
personality, that he was not a psychopath or sociopath, and
that he could be rehabilitated. The defense actually called the
other medical expert who had examined Greenway, Dr. Sas-
low, to testify along with the defense investigator and lay wit-
nesses, including Greenway’s mother, half-sister, brother-in-
law, former co-worker, and childhood friend.

On June 15, 1989, Judge Scholl found one mitigating fac-
tor, Greenway’s age, which was nineteen at the time of the
crimes, and three statutory aggravating factors: (1) the mur-
ders were committed for pecuniary gain; (2) the murders were
committed in a cruel, heinous, or depraved manner; and (3)
the defendant had been convicted of another homicide, which
was committed during the commission of each homicide
offense. Greenway, 823 P.2d at 30-34.

The judge sentenced Greenway to death on the two first
degree murder counts. On direct appeal to the Arizona
Supreme Court, Greenway challenged his convictions, the
constitutionality of Arizona’s death penalty statute, and his
9708 GREENWAY v. SCHRIRO
capital sentence. Greenway could not bring any claims of
ineffective assistance of counsel on direct appeal, because in
Arizona, “ineffective assistance of counsel claims should be
raised in post-conviction relief proceedings pursuant to rule
32, Arizona Rules of Criminal Procedure.” Lambright v.
Stewart, 241 F.3d 1201, 1203-04 (9th Cir. 2001).

On December 3, 1991, the Arizona Supreme Court
affirmed Greenway’s convictions and sentence. Greenway,
823 P.2d at 40. With respect to the death penalty, it concluded
that the Arizona death penalty statute was constitutional and
the death sentence was imposed in a fair and impartial man-
ner. After an independent review, it found that a death sen-
tence was an appropriate punishment. Id. at 35-38.

C. Post-conviction Proceedings

Greenway filed his pro se preliminary petition for post-
conviction relief under Rule 32 of the Arizona Rules of Crim-
inal Procedure (“Rule 32 petition”) in state court in August
1992. Judge Scholl appointed counsel and ordered counsel to
file an amended petition by February 1, 1993. Counsel then
filed a short, untimely petition raising only one issue of inef-
fective assistance of counsel at sentencing, and Greenway
asked for a change of counsel that his attorney did not oppose.
No further pleadings or proof were entered by counsel pend-
ing the change of counsel ruling. The trial judge, however, in
January 1994, summarily denied the post-conviction petition
in a minute order, without ruling on the request for change of
counsel. The trial court subsequently granted Greenway’s
motion to proceed in propria persona and allowed him to file
a motion for reconsideration.

In April 1994, Greenway, with new counsel, moved to
vacate the denial of the inadequate post-conviction petition,
but the trial court denied that motion as well. Greenway then
filed a petition for special action with the Arizona Supreme
Court. Although the Arizona Supreme Court declined to
 GREENWAY v. SCHRIRO 9709
accept jurisdiction of Greenway’s petition, it stated that it did
so without prejudice to Greenway’s filing a motion with the
trial court for reconsideration of the denial of post-conviction
relief.

Before Greenway filed a motion for reconsideration, his
counsel learned through a juror that Judge Scholl, during the
trial, had told a juror that when the judge was working for law
enforcement, he had a colleague who had earlier been married
to Lili Champagne and had fathered Mindy Peters. In Decem-
ber 1994, Greenway filed a motion to disqualify Judge Scholl,
but in January 1996, the motion was denied as moot because
Judge Scholl was no longer on the bench.

The case was reassigned to a different judge in January
1996. Greenway then filed the motion with the trial court
seeking reconsideration of its denial of his post-conviction
petition. The motion also sought leave to amend the initial
petition to add additional facts to support his claims of inef-
fective assistance of counsel at sentencing, additional claims
of ineffective assistance of counsel at other stages of the liti-
gation, including at trial and on direct appeal, and a claim of
judicial bias. The new state court judge found Greenway’s
claims of ineffective assistance of counsel at sentencing pre-
cluded by Arizona Rule of Criminal Procedure 32.2(a)(2)
because they had already been raised and denied on the mer-
its. The judge also concluded that Greenway’s additional
claims of ineffective assistance of counsel at other stages of
the litigation were waived under Rule 32.2(a)(3) because they
had not been raised when the initial post-conviction petition
was filed. The court denied the judicial bias claim as moot in
light of the state supreme court’s independent review of the
sentence.

Greenway again petitioned the Arizona Supreme Court to
order the trial court to consider the amended petition. On
October 22, 1997, the supreme court entered an order purport-
ing to decline review of the state trial court’s denial of the
9710 GREENWAY v. SCHRIRO
motion for reconsideration, but also granting the request for
leave to amend the post-conviction petition. After sparring
between the parties, however, in which each interpreted the
order differently, the Arizona Supreme Court, on January 6,
1998, vacated the portion of that order granting the request for
leave to amend the petition. The court then amended its order
to deny the requested relief in its entirety.

This habeas petition in federal district court followed in
1998. In September 2007, after a number of interim rulings,
the district court eventually denied the petition. During much
of the intervening period, proceedings were stayed while the
district court awaited exhaustion of claims relating to the con-
stitutionality of Greenway’s death sentence. See Ring v. Ari-
zona, 536 U.S. 584 (2002) (holding unconstitutional the
Arizona statute allowing a trial judge, sitting without a jury,
to impose the death penalty). In addition, during the interim
period, the Court decided Atkins v. Virginia, 536 U.S. 304
(2002), which held that executions of mentally retarded crimi-
nals violate the Eighth Amendment. Greenway therefore filed
a successive post-conviction petition in state court alleging
that he was entitled to a new sentencing under Ring and that
he was mentally retarded.

The United States Supreme Court in 2004 ruled that Ring
did not apply retroactively. Schriro v. Summerlin, 542 U.S.
348 (2004). With respect to the Atkins claim, Greenway’s
expert eventually concluded in the state proceedings that
Greenway did not meet the criteria for mental retardation,
thus paving the way for the district court to consider the
remaining claims.

In its denial of Greenway’s habeas petition, the district
court dismissed as procedurally barred the claims that he
received ineffective assistance of counsel during trial and on
direct appeal. It held that the state court’s ruling that the
claims were waived was an adequate and independent state
ground supporting denial. It also dismissed, as barred, the
 GREENWAY v. SCHRIRO 9711
claim that counsel failed to investigate and present mitigating
evidence during the sentencing hearings. The district court
dismissed on the merits Greenway’s ineffective assistance of
counsel claims relating to psychological evidence, and, also
on the merits, dismissed Greenway’s judicial bias claim.
Finally, the district court found that the Arizona state courts
properly considered all the mitigating evidence that was pre-
sented during the sentencing phase.

Greenway timely appealed the district court’s denial of his
habeas relief petition. On appeal, Greenway asserts that the
district court erred by not reaching the merits of his claims of
ineffective assistance of counsel at trial and on direct appeal
because he contends the procedural rule that the state court
relied upon is not an independent or adequate bar to federal
review. Greenway also challenges the district court’s ruling
that his claim of ineffective assistance of counsel relating to
mitigating evidence was barred. As for his claim of ineffec-
tive assistance of counsel relating to psychological evidence,
Greenway contends the district court erred on the merits and
that his counsel’s performance was deficient. Lastly, Green-
way posits that the district court erred by denying Greenway
an evidentiary hearing on his judicial bias claim and by find-
ing that the state courts properly considered and gave effect
to mitigating evidence in sentencing Greenway to death.

II. DISCUSSION

A. AEDPA Applicability

Because Greenway filed his petition for writ of habeas cor-
pus after April 24, 1996, the Antiterrorism and Effective
Death Penalty Act (“AEDPA”) applies. Lindh v. Murphy, 521
U.S. 320, 327 (1997). Under AEDPA, we may disturb the
state court’s rulings only if they were “contrary to” or “in-
volved an unreasonable application of” clearly established
federal law as determined by the United States Supreme
Court. 28 U.S.C. § 2254(d)(1). On appeal, however, we
9712 GREENWAY v. SCHRIRO
review de novo the district court’s denial of a petition for
habeas corpus relief. See Scott v. Schriro, 567 F.3d 573, 580
(9th Cir. 2009).

B. Ineffective Assistance of Counsel During Trial and
on Direct Appeal

The district court concluded that all of Greenway’s claims
of ineffective assistance of counsel, both at trial and on direct
appeal, were procedurally barred by Arizona Criminal Proce-
dure Rule 32.2(a)(3), which the district court found was con-
sistently and regularly followed in Arizona and therefore
constituted an independent and adequate ground upon which
a procedural default may be found.

[1] Federal courts “will not review a question of federal
law decided by a state court if the decision of that court rests
on a state law ground that is independent of the federal ques-
tion and adequate to support the judgment.” See Coleman v.
Thompson, 501 U.S. 722, 729 (1991). To constitute an inde-
pendent and adequate state procedural ground creating a pro-
cedural bar to consideration of claims in the federal court, a
state rule must be clear, consistently applied, and well-
established at the time of a petitioner’s purported default. See
Scott, 567 F.3d at 580.

The general Arizona rule governing all procedural bars is
Rule 32.2, which provides:

a. Preclusion. A petitioner will not be given relief
under this rule based upon any ground:

(1) Still raisable on direct appeal under
Rule 31 or on post-trial motion under Rule
24;

(2) Finally adjudicated on the merits on
appeal or in any previous collateral pro-
ceeding;
 GREENWAY v. SCHRIRO 9713
(3) Knowingly, voluntarily and intelligently
not raised at trial, on appeal, or in any pre-
vious collateral proceeding.

Ariz. R. Crim. P. 32.2 (pre-1992) (emphasis added).1

[2] The state trial court and the district court relied upon
Rule 32.2(a)(3), which bars claims not raised in previous
post-conviction proceedings. The state trial court denied
Greenway’s attempts to reopen and amend the initial Rule 32
petition to include these ineffective assistance claims on the
ground that the claims should have been brought in that peti-
tion when it was originally filed. Yet, Rule 32.2(a)(3) does
not provide that petitions as originally filed cannot be
amended. Indeed, Arizona has a procedural rule, Rule 32.6(d),
which permits amendment of a Rule 32 Petition even if the
petition has already been dismissed. See Scott, 567 F.3d at
577. Rule 32.2(a)(3) expressly bars only claims not brought
in a “previous collateral proceeding.” In this case, Greenway
was trying to amend his first petition, and there had been no
earlier petition or collateral proceeding. We therefore con-
clude there was no “previous collateral proceeding” in which
these claims should have been brought, because Greenway’s
first petition for post-conviction relief remained in state court
proceedings while he sought to include additional claims of
ineffective assistance of counsel.

We trace the procedural history of this case to illustrate that
Petitioner did what he could, and, indeed, what the state
supreme court effectively told him to do, in order to litigate
the claims in the first petition. Greenway, with new counsel,
1
Arizona clarified that “the 1992 amendments to Rule 32 apply to ‘all
post-conviction relief petitions filed on and after September 30, 1992.’ ”
State v. Rodriguez, 903 P.2d 639, 640 (Ariz. Ct. App. 1995) (quoting
Supreme Court Order, 171 Ariz. XLIV (Sept. 24, 1992)). Because Green-
way’s initial post-conviction petition was filed on August 28, 1992, the
amendment to Rule 32.2 does not affect his petition.
9714 GREENWAY v. SCHRIRO
first moved to vacate the trial court’s denial of his original
Rule 32 petition, and to obtain leave from the trial court to
amend that petition. When that motion was denied, Greenway
filed a Petition for Special Action with the Arizona Supreme
Court, asking that court to order the trial court to allow the fil-
ing of an amended petition. The Arizona Supreme Court
declined jurisdiction of the Special Action, but did so without
prejudice to Greenway’s seeking reconsideration of the denial
of the post-conviction petition before the state trial court, pre-
sumably in order to amend it. The state supreme court thus
appeared to authorize Greenway to seek relief in the trial
court by amending his first and only Rule 32 petition.

Greenway did go back to the trial court to seek reconsidera-
tion and leave to amend his first petition to include, among
other claims, claims of ineffective assistance of counsel at
trial and on direct appeal. Greenway argued that the counsel
who filed his initial post-conviction petition was ineffective
because she missed one deadline after another, conducted no
investigation to see if other meritorious claims could be
raised, never met with Greenway to discuss his case, and even
directed a non-attorney investigator to write the entire post-
conviction petition, to which counsel then made no additions
or modifications.

[3] As we recently recognized in Scott, Arizona Rules spe-
cifically allow the filing of an amended petition upon a show-
ing of good cause, even after the trial court has already
dismissed that petition. 567 F.3d at 577 (citing Arizona Rule
of Criminal Procedure 32.6(d)). In this case, however, instead
of determining whether Greenway had good cause to amend
his petition, the state trial court, citing Rule 32.2(a)(3), denied
those claims as procedurally barred because they had not been
raised earlier. The state trial court thus failed to recognize the
availability of the state procedural rule allowing the filing of
an amended petition upon a showing of good cause. Since
Arizona has a procedure for amending post-conviction relief
petitions, the dismissal of claims as barred under a different
 GREENWAY v. SCHRIRO 9715
rule, Rule 32.2(a)(3), cannot constitute an independent and
adequate state ground barring the district court’s consider-
ation of these claims.

Our opinion in Scott is instructive and controlling in key
respects. In Scott, the original post-conviction petition for
relief from Scott’s conviction and capital sentence raised a
single issue of ineffective assistance at sentencing. Scott, 567
F.3d at 578. While this petition was pending, Scott, like
Greenway, sought to replace his post-conviction counsel. The
trial court summarily denied the petition for post-conviction
relief in a minute order, without a hearing with respect to the
request for new counsel, just as the trial court did in this case.
See id.

Scott then filed a motion to represent himself and the court
appointed new counsel. With new counsel, Scott, like Green-
way, then filed motions to vacate the denial of the post-
conviction petition and for leave to file an amended petition,
arguing that his previous counsel had been ineffective. See id.
at 578-79. The state court denied the motions. In an order
remarkably similar to the trial court’s ruling on the ineffec-
tiveness claims sought to be added in this case, the court said
it had “no authority” under Arizona Rule of Criminal Proce-
dure 32.6(d) to allow the filing of an amended petition
because the motion to amend was filed after the original peti-
tion had been denied. Id. at 579. Scott then filed a petition for
review with the Arizona Supreme Court, which was summa-
rily denied. See id.

The federal district court then dismissed Scott’s subsequent
federal habeas petition, just as the district court dismissed
Greenway’s claims, because it found that the state court’s
denial of post-conviction relief was based on an adequate and
independent rule of state procedure. See id.

On appeal to this court, however, we reversed and
remanded for a determination on the merits, holding that Rule
9716 GREENWAY v. SCHRIRO
32.6(d) was not an adequate bar to federal review because the
rule was not clear, well-established, nor consistently applied
in Arizona. Id. at 581-82. We reviewed its history and con-
cluded it had never been consistently applied to bar post-
dismissal amendments to Rule 32 petitions. At least one Ari-
zona appellate court had interpreted Rule 32.6(d) to allow the
filing of an amended petition upon a showing of good cause,
even if the trial court had already dismissed the original peti-
tion. Id. at 581 (citing State v. Rodriguez, 903 P.2d 639, 641
(Ariz. Ct. App. 1995)). Indeed, we found that the Arizona
Supreme Court had subsequently followed Rodriguez and
issued orders allowing defendants upon a showing of good
cause to file amended or supplemental petitions even after
their first petitions had been denied. Scott, 567 F.3d at 581
n.7. We therefore concluded that reliance on Rule 32.6(d) was
not an independent and adequate state ground that barred
Scott’s claims.

In this case, as in Scott, the state court held that the new
claims were brought too late without considering whether
there was good cause to amend the petition. Here, the state
court relied on Rule 32.2(a)(3) to bar Greenway’s claims, a
provision that, on its face, applies only where there has been
a prior post-conviction proceeding. There was no such prior
post-conviction proceeding in Greenway’s case, for Green-
way, like Scott, was trying to amend his first petition after it
had been dismissed. The state supreme court itself effectively
told Greenway to return to the trial court to seek amendment
of his first petition when it declined to accept jurisdiction of
his special action. Therefore, Rule 32.2(a)(3)’s bar of claims
not raised in an earlier petition cannot constitute an adequate
and independent ground sufficient to support a finding of pro-
cedural default, and particularly in light of Rule 32.6(d)’s pro-
vision allowing for amendments to Rule 32 petitions. See also
Lambright v. Stewart, 241 F.3d 1201, 1203-06 (9th Cir. 2001)
(holding Rule 32.2(a)(3) does not bar federal habeas review
of claims not raised in direct appeal in light of another Ari-
 GREENWAY v. SCHRIRO 9717
zona rule prohibiting claims from being raised on direct
appeal when they rely on evidence outside the record).

The State cites a number of cases in which we recognized
reliance on Rule 32.2(a)(3) to have been an independent and
adequate state ground for the state courts’ dismissal of claims.
Yet none of those cases involved an attempt to amend a first
Rule 32 petition. In those cases, the petitioner had filed an
earlier Rule 32 post-conviction petition that had been conclu-
sively ruled upon and become final. Thus those petitioners
were trying to bring new claims before the state court in a
successive petition. In Ortiz v. Stewart, 149 F.3d 923, 930
(9th Cir. 1998), for example, we held that additional claims
raised for the first time in petitioner’s third post-conviction
petition were procedurally defaulted. In Martinez-Villareal v.
Lewis, 80 F.3d 1301, 1304-06 (9th Cir. 1996), we determined
that claims were barred because they were raised in second
and third post-conviction petitions.

[4] The State cites no case in which we concluded Rule
32.2(a)(3) to be an independent and adequate state ground
barring claims sought to be raised in state court through
amendment of a first petition. Arizona has not consistently
recognized any such bar, and its rules permit amendment. The
district court erred in holding that Rule 32.2(a)(3) was an
independent and adequate state ground that bars the consider-
ation of Greenway’s claims of ineffective assistance of coun-
sel at the guilt phase of trial and on direct appeal.

[5] Greenway’s claims of ineffective assistance of counsel
during trial and on direct appeal of the state court proceedings
are therefore remanded to the district court for consideration
on the merits. On remand, the district court should consider
those claims de novo because there is no state court determi-
nation on the merits to which the district court can defer.
Scott, 567 F.3d at 584-85 (stating that when “a state court has
not reached the merits of a properly raised issue, we must
review it de novo” (quotation marks and citation omitted)).
9718 GREENWAY v. SCHRIRO
C. Ineffective Assistance at Sentencing

Greenway’s claims with respect to ineffective assistance at
sentencing raise two principal issues: whether counsel ade-
quately investigated and presented mitigating evidence, and
whether counsel was ineffective in declining to call Dr. David
to testify, and relying instead upon the testimony of Dr. Sas-
low. Because we conclude these claims lack merit, we affirm
the district court’s dismissal of them.

1. Failure to investigate and present mitigating
evidence

Greenway argues that his trial counsel was ineffective at
sentencing because he failed to investigate and present miti-
gating evidence. His federal habeas petition alleged that his
counsel rendered ineffective assistance by failing to investi-
gate Greenway and his family background, including abuse,
medical history, drug usage, chaotic upbringing, and learning
disabilities.

[6] The district court dismissed this claim for failure to
exhaust, holding that it was never fairly presented to the state
court. Under AEDPA, a federal habeas petitioner must
exhaust his claims in state court before coming to federal
court. 28 U.S.C. § 2254(b)(1). A petitioner satisfies the
exhaustion requirement by “fully and fairly presenting each
claim to the highest state court.” Scott, 567 F.3d at 582. Full
and fair presentation requires the petitioner to provide the fac-
tual and legal basis for the claim to the state court. Id.

The district court concluded that this claim was never fairly
presented to the state court because Greenway did not include
the operative facts alleged in the habeas petition in his origi-
nal state post-conviction relief petition. What the district court
did not adequately take into account, however, was that
Greenway’s motion to amend his first post-conviction petition
included these facts. That motion, filed after the state supreme
 GREENWAY v. SCHRIRO 9719
court denied his petition for Special Action without prejudice
to filing such a motion, sought to add allegations that included
the following mitigating circumstances:

emotional abuse[,] physical abuse[,] possibility of
sexual abuse[,] effects of drug usage on Petitioner[,]
effects of strict religious upbringing (Jehovah’s wit-
ness)[,] chaotic childhood[,] why Petitioner was on
his own as a teenager[,] why Petitioner lived with his
sister rather than his parents[,] learning disabilities[,]
sibling rivalries[,] why Petitioner ran away at 14[,]
non-violent history[,] effects of living in a draining
ditch as a teenager[,] lack of paternal affection[,]
psychological abuse by family members and
friends[,] potential character disorders not diagnosed
and therefore not treated[,] parental history . . . .

The state trial court declined to consider these additional
facts on the ground that it had already considered and dis-
missed, on the merits, Greenway’s claim of ineffective assis-
tance as to mitigation. In his petition for review to the Arizona
Supreme Court, Greenway included in the Appendix a copy
of the amended post-conviction relief petition he sought to
file in the state trial court and requested the supreme court to
allow the claims raised in the amended petition to proceed in
the lower court. The supreme court denied his request.

[7] We have held that this is enough to satisfy the fair pre-
sentation requirement. In Scott, petitioner asked the Arizona
Supreme Court to allow the claims in his amended post-
conviction relief petition to proceed in the lower court and
attached the amended petition, which included the operative
facts and law, in the Appendix. 567 F.3d at 582. We held that
petitioner exhausted those claims because the claims were
fairly presented to the Arizona Supreme Court. Id. at 583.
Here, Greenway’s claim of ineffective assistance of counsel
relating to mitigation evidence was fairly presented to the Ari-
zona Supreme Court because Greenway provided the factual
9720 GREENWAY v. SCHRIRO
and legal basis for the claim in his amended post-conviction
relief petition. The Arizona Supreme Court knew exactly
which claim Greenway sought to present and chose to decline
review of it. As we recognized in Scott, “[a]ll exhaustion
requires is that the state courts have the opportunity to remedy
an error, not that they actually took advantage of the opportu-
nity.” Id. Accordingly, we hold that Greenway fairly pres-
ented his ineffective assistance of counsel claim relating to
mitigating evidence and the district court therefore erred in
holding the claim unexhausted. See also Cone v. Bell, 129 S.
Ct. 1769 (2009) (“When a state court refuses to readjudicate
a claim on the ground that it has been previously determined,
the court’s decision does not indicate that the claim has been
procedurally defaulted. To the contrary, it provides strong evi-
dence that the claim has already been given full consideration
by the state courts and thus is ripe for federal adjudication.”).

[8] We may nevertheless affirm the district court on any
ground supported by the record. Holley v. Yarborough, 568
F.3d 1091, 1098 (9th Cir. 2009). We therefore look at the
merits of the claim, and we determine it should have been
denied on the merits.

Under Supreme Court precedent, to prevail on a claim of
ineffective assistance of counsel, Greenway must show that
counsel’s performance was deficient and that the deficiency
prejudiced the defense. Strickland v. Washington, 466 U.S.
668, 687-88 (1984). The inquiry under Strickland is highly
deferential, and “every effort [must] be made to eliminate the
distorting effects of hindsight, to reconstruct the circum-
stances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.” Id. at 689.

[9] Greenway claims that his trial counsel failed to investi-
gate for mitigating evidence, including: emotional, physical,
and possibly sexual abuse; drug use; living in a drainage
ditch; strict religious upbringing; chaotic childhood; sibling
rivalries; lack of paternal affection; learning disabilities; and
 GREENWAY v. SCHRIRO 9721
potential psychological disorders. All of the matters that
Greenway now claims were not investigated were, in fact,
brought out at the aggravation-mitigation hearings. There, his
trial counsel presented a total of eight witnesses, including his
mother, half-sister, childhood friend, and Dr. Saslow. Green-
way contends that the sentencing court did not hear testimony
that Greenway was raised in a very strict environment by his
father who was “an ardent Jehovah’s witness” and who beat
Greenway with a belt and later with his fists. Greenway’s
mother, however, testified that she and her husband were
Jehovah’s witnesses and that they made Greenway go to
church. Additionally, his mother and his half-sister testified
that Greenway’s father beat him with a belt and later with his
fists.

Greenway’s mother also testified that Greenway did not
graduate from the seventh grade, he had problems in school,
and he had learning disabilities. She acknowledged that she
criticized Greenway, and that Greenway’s older brother ridi-
culed Greenway. She recalled an occasion when Greenway’s
father and brother bought him baby food when he was 12. She
also testified that Greenway ran away from home and was liv-
ing in a drainage ditch, and that Greenway’s older brother was
his father’s favorite. Greenway’s half-sister testified that her
parents abused her and Greenway, but treated his older
brother “[l]ike he could do no wrong.” She also testified that
Greenway did poorly in school and that he could not read.
Greenway’s childhood friend testified that Greenway and his
brother did not get along well, and that Greenway told him
that he received corporal punishment from his father. We
therefore conclude that Greenway’s counsel adequately inves-
tigated and presented mitigating evidence relating to his fam-
ily background.

Greenway also claims that his counsel was ineffective for
failing to investigate and develop on information obtained by
the psychiatrist, Dr. David, which Greenway alleges revealed
“tantalizing indications” of mental health issues, physical and
9722 GREENWAY v. SCHRIRO
mental abuse, and past drug abuse. Greenway, however, has
never explained how such indications would have led to spe-
cific and material evidence. Indeed, Dr. David himself noted
in his interview worksheet that with regard to Greenway’s
“Mental Status Examination,” Greenway “related well to the
interviewer and spoke quietly with relatively good verbal
skills throughout the interview . . . . Although he was obvi-
ously anxious, it did not seem overwhelming or to interfere
with his behavior or thought processes.” Furthermore, Green-
way was “oriented,” “had a good recent and remote memory,”
and “[t]here was no evidence of a gross psychotic thought dis-
order, but he did have difficulties [explaining] both on prov-
erbs and similarities.”

To satisfy any remaining doubts, Dr. David asked a psy-
chologist, Dr. Saslow, to conduct a psychological evaluation
of Greenway, because Dr. David “felt that there may be some
question with respect to [Greenway’s] intellectual functioning
and for the possibility of the presence of a learning disabili-
ty.” Dr. Saslow subsequently interviewed Greenway on two
separate occasions, and conducted four psychological and
intelligence tests on him.

At the aggravation-mitigation hearing, Dr. Saslow testified
that Greenway’s I.Q. was a 72, which he characterized as bor-
derline functioning. Dr. Saslow stated that although the tests
he performed did not indicate any sign of sociopathology, he
described Greenway’s mental functioning as akin to that of an
11- or 12-year-old, which made him more prone to impulsive-
ness than someone who was mentally older. On cross-
examination, Dr. Saslow acknowledged that he was not sug-
gesting that Greenway suffered from any organic brain dam-
age or that he was incapable of making judgments. Dr.
Saslow’s testimony thus developed the nature of Greenway’s
limitations.

In addition to presenting witnesses, defense counsel also
prepared two sentencing memoranda arguing that Greenway’s
 GREENWAY v. SCHRIRO 9723
age and immaturity constituted statutory mitigating factors.
His counsel further argued that Greenway’s mental retarda-
tion, learning disability, remorse, prior good deeds, good
behavior while in custody, lack of significant criminal history,
lack of violent propensity, and potential for rehabilitation con-
stituted additional mitigating factors. Counsel pointed out that
Greenway was not raised in a supportive environment, noting
that his mother mistook his learning disability for laziness and
that his father and brother “constantly belittled and criticized”
him.

[10] The record shows that Greenway’s counsel investi-
gated and presented mitigating evidence at the state sentenc-
ing proceedings. His performance was not deficient.
Accordingly, we conclude that the state court’s denial of this
claim was not an objectively unreasonable application of Str-
ickland. We therefore affirm the district court’s denial of this
claim.

2. Failure to Call Dr. David to Testify

The district court denied on the merits Greenway’s claim
that his counsel was ineffective for failing to call Dr. David
to testify. We agree that counsel’s performance was not inef-
fective. Greenway’s counsel initially intended to call Dr.
David to testify at the sentencing hearing, and counsel asked
the trial court to exclude incriminating statements Greenway
made to Dr. David about the murders. When the trial court
declined to limit the cross-examination of Dr. David, defense
counsel decided not to call him.

[11] This was a reasonable strategic decision. In his inter-
view with Dr. David, Greenway told Dr. David that he and his
co-defendant were discussing committing a burglary in the
weeks leading up to the murders because they were out of
work and needed money. Greenway admitted that he shot the
victims in the head, execution-style. He also described the
murders as “a big adventure,” and that he “felt like he was the
9724 GREENWAY v. SCHRIRO
master.” Had Dr. David testified, the state would have cross-
examined him about these inculpatory statements, and such
testimony would have been highly prejudicial to the defense.
Our precedent has repeatedly recognized similar decisions as
being a reasonable strategy. See Wong v. Belmontes, 130 S.
Ct. 383, 386 (2009) (“[I]t is necessary to consider all the rele-
vant evidence that the jury would have had before it if [defen-
dant] had pursued the different path—not just the mitigation
evidence [defendant] could have presented, but also the . . .
murder evidence that almost certainly would have come in
with it.”) (emphasis in original); Bonin v. Calderon, 59 F.3d
815, 834 (9th Cir. 1995) (stating that it was reasonable for
defense counsel to forego expert testimony because “it would
have opened the door to precisely the type of cross-
examination that [defendant] sought to avoid by refusing to
call psychiatric experts”).

[12] Moreover, Dr. David’s testimony would not have
added much to Greenway’s case. Defense counsel proffered
that, “[Dr. David] would testify that in his opinion . . . [Green-
way had] a low I.Q., that [Greenway] had developed an
immature personality, [but that] Mr. Greenway [did] not fit
within any kind of characterlogical [sic] disorder . . . such as
a psychopath or sociopath.” He went on to say that Dr. David
would agree with Dr. Saslow that Greenway was functioning
at an 11- or 12-year-old level, and would testify that Green-
way could be rehabilitated. Thus, much of Dr. David’s poten-
tial testimony would have been cumulative of the testimony
provided by Dr. Saslow, while the drawbacks of calling Dr.
David were substantial. Defense counsel was therefore not
ineffective by his strategic decision not to call Dr. David. See
also Raley v. Ylst, 470 F.3d 792, 801 (9th Cir. 2006) (holding
that a strategic choice not to call an expert will not constitute
ineffective assistance of counsel if that choice was reasonable
under the circumstances).

3. Failure to prepare Dr. Saslow

Greenway contends that his trial counsel was ineffective by
failing adequately to prepare Dr. Saslow because counsel had
 GREENWAY v. SCHRIRO 9725
not done enough background investigation. Greenway claims
“counsel did not have sufficient background information to
provide Dr. Saslow before he testified.”

[13] Yet Greenway does not allege what specific facts or
information counsel should have provided to Dr. Saslow. Dr.
Saslow’s testimony related principally to his own testing and
interviews of Greenway. Dr. Saslow testified that he was
given the information garnered by the defense investigation
concerning Greenway’s background, but he testified that his
conclusions concerning Greenway’s mental status and mental
functioning were predicated primarily on the psychological
tests he performed. Greenway has never alleged, much less
demonstrated, what more counsel should have known or dis-
covered. Greenway’s cursory and vague claim cannot support
habeas relief. See James v. Borg, 24 F.3d 20, 26 (9th Cir.
1994) (“Conclusory allegations which are not supported by a
statement of specific facts do not warrant habeas relief.”).

[14] For the reasons stated, we conclude that the state court
was not objectively unreasonable in denying Greenway’s
claims that his counsel was ineffective for failing to investi-
gate and present mitigating evidence, for failing to call Dr.
David to testify at the sentencing hearing, and for failing
properly to prepare Dr. Saslow. We therefore affirm the dis-
trict court’s denial of those claims.

D. Judicial Bias

The claim of judicial bias came to light in December 1994
when counsel for Greenway learned from an alternate juror
that the trial judge, Judge Scholl, had mentioned his prior
working relationship with Vince Peters, Lili’s late husband
and Mindy’s father. As a result of this new information,
Greenway filed a motion for a change of judge and requested
discovery in order to further investigate Judge Scholl’s ties to
the victims. The new state court judge granted Greenway’s
discovery motion and ordered the Tucson Police Department
9726 GREENWAY v. SCHRIRO
(“TPD”) to provide Greenway with records about Judge
Scholl and Vince Peters.

The TPD record demonstrates that Scholl was employed by
Tucson Police Department from July 1970 until September
1971. He was on military leave from October 1970 until
March 1971. Vince Peters was employed by TPD from April
1968 until July 1978. The TPD record does not indicate
whether or not Judge Scholl and Vince Peters worked
together. However, the TPD discovery response states that the
time period that they “could have worked together would be
limited to the period from March 22, 1971 when Judge Scholl
return[ed] from military leave, to May 24, 1971, when Vince
Peters transferred to Narcotics.”

At a status conference in August 1996, Greenway’s attor-
ney stated that she spoke with Judge Scholl and Judge Scholl
admitted that he knew Vince Peters but he did not have any
recollection of Lili. Greenway’s attorney also claimed that she
was in the process of contacting Kurt Jackson, a colleague of
both Judge Scholl and Peters. Although the attorney was
unable to reach Jackson, her investigator spoke with Jack-
son’s mother, who told the investigator that Judge Scholl and
Peters were close. The attorney, however, did not present an
affidavit from Jackson’s mother.

In September 1996, the state court dismissed the judicial
bias claim, stating that although there was some indication
that “Judge Scholl may have had some type of relationship
with Vince Peters,” the issue was moot because the Arizona
Supreme Court conducted an independent review of the sen-
tencing and approved the capital sentence.

The state court thus applied a harmless error analysis to dis-
miss the claim. This was incorrect because when a defen-
dant’s right to have his case tried by an impartial judge is
compromised, there is structural error that requires automatic
reversal. See Tumey v. Ohio, 273 U.S. 510, 535 (1927) (reject-
 GREENWAY v. SCHRIRO 9727
ing the argument that the judge’s failure to recuse himself was
harmless in light of defendant’s clear guilt because “[n]o mat-
ter what the evidence was against him, he had the right to
have an impartial judge”); see also Chapman v. California,
386 U.S. 18, 23 (1967) (recognizing the right to an impartial
judge as among those “constitutional rights so basic to a fair
trial that their infraction can never be treated as harmless
error”).

Because the state court’s harmless error analysis was con-
trary to clearly established Supreme Court precedent, this
Court must review Greenway’s judicial bias claim de novo.
See Panetti v. Quarterman, 551 U.S. 930, 953 (2007) (holding
that when the state court’s decision is contrary to, or involved
an unreasonable application of clearly established federal law,
a “federal court must then resolve the claim without the defer-
ence AEDPA otherwise requires”); see also Frantz v. Hazey,
533 F.3d 724, 735 (9th Cir. 2008) (en banc) (stating that if
there is 2254(d)(1) error, “we must decide the habeas petition
by considering de novo the constitutional issues raised”).

Greenway raised the judicial bias claim in his federal
habeas petition in 1998, four years after the underlying facts
came to light. During the intervening years, no additional
facts have been unearthed to illustrate the nature of the rela-
tionship or the possible effect it may have had upon the trial.
In support of this claim, Greenway relies only on the TPD
record and the affidavit from the alternate juror. In the affida-
vit, the juror declared that the judge had called him to his
office and told him about having known the husband of one
of the victims. The juror stated: “After being selected as the
alternate juror, the trial judge called me into his office. During
our conversation, the judge told me that he used to be a police
officer. He also told me that when he was a police officer, his
partner was the ex-husband of one of the victims in the Rich-
ard Greenway case.”

The district court denied this claim on the merits, and with-
out an evidentiary hearing, because the facts described could
9728 GREENWAY v. SCHRIRO
not establish bias. The court accurately stated that the evi-
dence presented by Greenway shows, at best, “that for a brief
period of time (two to three months at most), eighteen years
prior to trial, Judge Scholl and Vince Peters may have worked
or even partnered together as police officers. In addition, by
the time of trial, Vince Peters had been deceased for eleven
years. Petitioner can point to no evidence indicating that
Judge Scholl had a personal relationship or even acquaintance
with either Lili Champagne or Mindy Peters.” The district
court concluded that this evidence was insufficient to raise a
colorable claim of judicial bias, and we agree.

[15] A showing of judicial bias requires facts sufficient to
create actual impropriety or an appearance of impropriety.
Crater v. Galaza, 491 F.3d 1119, 1131 (9th Cir. 2007).
Although Greenway argues that the district court should have
held an evidentiary hearing before ruling on the merits of his
judicial bias claim, he was not entitled to an evidentiary hear-
ing unless he alleged facts which, if proven, would entitle him
to relief. Gonzalez v. Pliler, 341 F.3d 897, 903 (9th Cir.
2003). He has not done so.

[16] Greenway does not contend there was any actual bias
on the part of the trial judge, but only an appearance of bias
on the basis of having known Peters. The Supreme Court has
recognized only a few circumstances in which an appearance
of bias necessitates recusal to ensure due process of law. The
landmark case is Tumey v. Ohio, 273 U.S. 510, 523 (1927).
There, the Supreme Court held that the judge should have
recused himself because the judge had a direct, substantial
pecuniary interest in the outcome of the case, because the
judge received money from each conviction. The court in In
re Murchison, 349 U.S. 133, 137 (1955), recognized an
appearance of impropriety when the judge acted as both the
grand jury and the trier of the accused. The Court stressed the
improper appearance of the trial judge being “part of the accu-
satory process.” Id. In Mayberry v. Pennsylvania, 400 U.S.
455, 465-66 (1971), the Court held that where the defendant
 GREENWAY v. SCHRIRO 9729
had rudely insulted the trial judge, a different judge should
preside over the contempt proceeding. The trial judge had
become embroiled in “a running, bitter controversy” with the
defendant, creating an appearance of impropriety when the
same judge ruled on whether the defendant had been guilty of
contempt.

More recently, in a case where one party was a large donor
to the judge’s election campaign, the Court ruled there had
been a denial of due process. The Court held recusal was
required when “the probability of actual bias on the part of the
judge or decisionmaker is too high to be constitutionally toler-
able.” Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct.
2252, 2257 (2009) (quoting Withrow v. Larkin, 421 U.S. 35,
47 (1975) (internal quotation marks omitted)).

[17] All these cases involved some direct, personal rela-
tionship of the judge to the case, or with one of the parties,
before the judge. That was not the situation here. Greenway’s
claim does not suggest any possible connection of the trial
judge to his case that approaches the prior involvement of the
judges in Tumey, Murchison, Mayberry, or Caperton. Here,
Greenway has never presented any additional evidence, other
than the TPD record and the alternate juror’s affidavit, to sup-
port his bias claim. It continues to rest only upon a relation-
ship that existed eighteen years before trial, lasted, at most, a
few months, and was with a person who died more than
eleven years before the trial. We agree with the district court
that the record lacks support for a claim of judicial bias. The
judge had no interest in, or relationship to, Greenway or the
victims; at most, there was but a brief tangential employment
relationship with a member of the victims’ family. We there-
fore conclude that the district court did not abuse its discretion
in denying Greenway’s request for an evidentiary hearing,
and we affirm the dismissal of this claim.

E. State Courts’ Consideration of Mitigating Factors

Greenway’s final claim is that the state trial court and Ari-
zona Supreme Court failed to consider mitigating factors
9730 GREENWAY v. SCHRIRO
because they were following the then commonly applied test
in Arizona requiring a nexus between mitigating factors and
the crime. See Schad v. Ryan, 606 F.3d 1022, 1045-46 (9th
Cir. 2010), vacated on other grounds, 131 S. Ct. 2092 (2011).
In Schad we cited State v. Djerf, 959 P.2d 1274 (Ariz. 1998),
as illustrating the Arizona nexus test, and concluded that such
a test was found to be inconsistent with later constitutional
analysis by the Supreme Court in Tennard v. Dretke, 542 U.S.
274 (2004), and Smith v. Texas, 543 U.S. 37 (2004), which
required consideration of all mitigating factors. Schad, 606
F.3d at 1045-47.

[18] The record in this case, however, does not indicate
that either the state trial court or the Arizona Supreme Court
applied such a nexus test. In sentencing Greenway to death,
the trial court stated that it had “considered all other mitigat-
ing factors, those presented at the aggravating-mitigating
hearing, and also those which have been submitted to the
Court in the sentencing memorandum and any other matters
of record,” and concluded that “evidence of brutality . . . far
outweighs his chronological, emotional and mental age,” and
that “there are no other mitigating factors sufficiently substan-
tial to call for leniency.” The Arizona Supreme Court’s opin-
ion indicates that it also considered all of the mitigating
factors and did not find them sufficient to outweigh the aggra-
vating circumstances. Greenway, 823 P.2d at 35-38 (review-
ing all the mitigating factors, including Greenway’s age and
low I.Q., and finding that they were “not sufficient to out-
weigh the three aggravating factors”).

[19] We have recently rejected a similar argument under
similar circumstances. See Schad, 606 F.3d at 1046 (“[T]here
is no indication that the state courts applied a nexus test . . . .”
). Accordingly, we must conclude that under the standards
applicable to our habeas review, the Arizona state court deci-
sion is neither contrary to clearly established Supreme Court
precedent, nor an unreasonable application of the law. See 28
U.S.C. § 2254(d)(1).
 GREENWAY v. SCHRIRO 9731
III. CONCLUSION

The dismissal of Greenway’s claims of ineffectiveness with
respect to the trial and on direct appeal is VACATED and the
claims are REMANDED to the district court for consider-
ation on the merits because we hold they are not procedurally
barred. The district court’s judgment dismissing the petition
is AFFIRMED in all other respects.

AFFIRMED in part, VACATED and REMANDED in
part.