Williams v. Stewart

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RONALD TURNEY WILLIAMS,  No. 01-99015
Petitioner-Appellant,
D.C. No.
v.
TERRY L. STEWART, Director of  CV 95-01687-RCB
ORDER AND
Arizona Department of
AMENDED
Corrections,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the District of Arizona
Robert C. Broomfield, District Judge, Presiding

Argued and Submitted
November 17, 2005—San Francisco, California

Filed March 28, 2006
Amended April 18, 2006

Before: Mary M. Schroeder, Chief Judge,
Pamela Ann Rymer and Ronald M. Gould, Circuit Judges.

Per Curiam Opinion

4279
 WILLIAMS v. STEWART 4285

COUNSEL

Julie S. Hall, Tucson, Arizona, and Denise I. Young, Tucson,
Arizona, for petitioner-appellant Ronald Turney Williams.

Terry Goddard, Attorney General, Phoenix Arizona, Kent E.
Cattani, Chief Counsel, Capital Litigation Section, Phoenix,
Arizona, and John Pressley Todd, Assistant Attorney General,
Phoenix, Arizona, for respondents-appellees Terry L. Stewart,
et al.

ORDER

The opinion filed on March 28, 2006, is AMENDED by
deleting the last sentence of the first paragraph and replacing
it with the following sentence: “We affirm the district court’s
denial of habeas relief.”
4286 WILLIAMS v. STEWART
OPINION

PER CURIAM:

Ronald Turney Williams appeals from the denial of his 28
U.S.C. § 2254 petition. A jury convicted him on February 10,
1984, of first degree murder and armed burglary in the first
degree for breaking into a home, burglarizing it, and shooting
and killing someone who saw him, John Bunchek. Williams
was sentenced to death on the murder conviction and to an
aggravated term of fourteen years for the burglary conviction.
The Arizona Supreme Court affirmed, State v. Williams, 166
Ariz. 132 (1987), cert. denied, Williams v. Arizona, 500 U.S.
929 (1991), reh’g denied, Williams v. Arizona, 501 U.S. 1265
(1991), and denied his petition for post-conviction relief. We
affirm the district court’s denial of habeas relief.

I

John Bunchek, an elderly Scottsdale resident, was shot and
killed on March 12, 1981. A white male who had been seen
wandering around the neighborhood just before the shooting
knocked on the Bunchek’s door and asked Sylvia Bunchek
whether her next-door neighbors were home. Mrs. Bunchek
told him that they were not. Mrs. Bunchek saw the stranger
walk toward the neighbors’ (the Tancoses’) house. She
expressed concern to her husband when he arrived a few min-
utes later. He went to investigate. When he failed to return,
Mrs. Bunchek went to the Tancos house where she found her
husband lying face down in a pool of blood, having been shot
in the chest. John Bunchek ultimately died from the wound.

In addition to Mrs. Bunchek, five other witnesses saw the
stranger in the neighborhood that day. Brenda Wood and Wil-
liam Koranda had talked with him face-to-face; Alan and
Elizabeth Tautkus saw him for about five seconds as they
drove by in their car. Wood and the Tautkuses provided the
police with a description from which a composite sketch was
 WILLIAMS v. STEWART 4287
prepared. This sketch was televised and published in local
newspapers on March 13. It was seen by one of Williams’s
roommates, Lynn Walsh. Williams rented a house that was
about three minutes from the Tuatkus home with Walsh,
James McClaskey and Cheryl Le Duc. Walsh told McClaskey
and Le Duc that the drawing looked like “Randy.” “Randolph
Cooper” and “Randy Despain” were names that Williams tes-
tified he used while he was in Arizona. The roommates
looked at the drawing and made the composite face look thin-
ner and more bearded. McClaskey then called Silent Witness
and reported their suspicions that Williams was the suspect.

Meanwhile, without telling anyone, Williams “threw his
stuff in the trunk of the car” and took off from Scottsdale the
day of the murder. He was arrested after a shoot-out with FBI
agents in New York City on June 8, 1981.

An Arizona grand jury indicted Williams and, following an
extradition hearing, Williams was arraigned on April 3, 1983.
Counsel was appointed for him, but Williams elected to repre-
sent himself at the guilt phase with the assistance of advisory
counsel.

The evidence at trial showed that none of the items taken
from the Tancos residence during the burglary was found in
Williams’s possession. However, the Mauser .380 semiauto-
matic pistol that Williams used in the New York shoot-out
was the same gun that fired the bullet which killed Bunchek.
Williams had bought this gun in Mechanicsville, Virginia, in
1980. Also, a footprint on the door of the Tancos house
matched the tread marks of a type of athletic shoe that Wil-
liams had owned when he was in Scottsdale. In addition, Mrs.
Tautkus identified Williams as the person she saw on March
12, although Wood and Koranda both testified that Williams
was not the man they had seen in the neighborhood.

After Williams was shot and apprehended in New York, a
nurse asked the FBI agent accompanying Williams to the hos-
4288 WILLIAMS v. STEWART
pital what Williams had done. The agent indicated that “he
killed a bunch of people down south.” When Williams mum-
bled “no, no, no,” and the agent said “What about the old man
in Scottsdale,” Williams replied either “If [I] hadn’t been
framed in the first place, it never would have happened,” or
“None of this would have happened if I hadn’t been framed
in the first place.” Williams’s reference to being framed was
to a prior murder conviction in West Virginia.1

Williams subsequently also admitted to burglarizing the
home of Marjorie Larson in Virginia in December 1980. Like
the door to the Tancos residence, the Larson front door was
opened by bodily force. Both were daytime burglaries during
which small items were stolen. As Williams was leaving the
Larson house, he saw Larson standing in a neighbor’s drive-
way and shot at (but did not hit) her. The gun used to fire at
Larson was the same gun that was used in the Bunchek mur-
der and that Williams used in the shoot-out with the FBI. Wil-
liams left Virginia after the Larson burglary although he was
engaged to be married at the time.

Williams testified on his own behalf. His defense was that
McClaskey and McClaskey’s friend, “Bobby,” had borrowed
his gun and committed the crime. However, LeDuc and
Walsh testified that McClaskey looked and dressed differently
from the man seen in the neighborhood that day. Neither
knew of any friend of McClaskey whose name was “Bobby.”
Williams also testified that he left Scottsdale to avoid being
investigated for escaping from jail in 1979, committing the
burglary in Virginia, and having no identification. Williams
admitted that he lied under oath (at the extradition hearing)
about aliases he had used, people he knew, and his presence
in Arizona at the time Bunchek was killed.
1
Williams claims that an informant falsely testified that Williams con-
fessed to a 1975 murder for which he was given a life sentence. Williams
escaped from the prison where he was serving that sentence. A guard was
killed during that escape, for which Williams was convicted of felony
murder.
 WILLIAMS v. STEWART 4289
The jury returned a guilty verdict on the first degree murder
and burglary counts on February 10, 1984. The trial court
denied Williams’s motion for a new trial. In keeping with
practice at the time, the sentencing phase was tried to the
court pursuant to A.R.S. § 13-703 (Supp. 1986). At Wil-
liams’s request, the court ordered two independent psycholog-
ical evaluations. Both mental health experts concluded that he
had no psychotic condition. Also at Williams’s request, his
advisory counsel was appointed as counsel for purposes of the
sentencing phase on April 11, 1984. Williams presented
numerous witnesses and letters in mitigation to show that he
was subjected to a difficult childhood, that he is a religious
person, that he had been a good parolee, that he had been
helpful to other inmates while incarcerated, and that the cir-
cumstances surrounding his prior convictions warrant mitiga-
tion, including the fact that a key witness in the first murder
recanted and that his second conviction was based only on his
participation in a prison escape rather than in the actual kill-
ing. The trial court considered evidence bearing on nineteen
allegedly mitigating factors during the six-day proceeding,
and concluded that they were insufficient to mitigate Wil-
liams’s life of crime. On April 23, 1984 the court found no
mitigating circumstances and found aggravating that Williams
had two prior convictions for which life imprisonment could
be imposed, and that Williams murdered Bunchek for pecuni-
ary gain. Id. § 13-703(F)(1), (5). It therefore sentenced Wil-
liams to death. Id. § 13-703(E). The Arizona Supreme Court
agreed with the trial court’s finding that the allegedly mitigat-
ing circumstances were insufficient to warrant leniency.

Extensive post-sentencing proceedings occurred. The state
supreme court affirmed the conviction and sentence on direct
appeal, and denied several motions for reconsideration. In
January 1992, Williams filed a preliminary state petition for
post-conviction relief, subsequently supplemented with addi-
tional claims. The trial court dismissed the petition on January
26, 1994, and the Arizona Supreme Court denied review on
April 25, 1995. The supreme court issued a death warrant
4290 WILLIAMS v. STEWART
scheduling the execution for September 1995. Williams filed
a federal petition for writ of habeas corpus on August 15,
1995, later amended to raise thirty-five claims for relief. The
district court determined that several of the claims were pro-
cedurally barred, and denied the remaining claims on the mer-
its in an exhaustive memorandum of decision and order filed
January 5, 2001.

Williams sought, and received, a Certificate of Appeala-
bility on twenty claims.2

II

Williams first argues that Elizabeth Tautkus’s testimony
identifying Williams as the person she saw the day of the
crime was the result of an unconstitutionally suggestive pre-
trial identification procedure. He submits that the error of
admitting it cannot be harmless, as the district court held,
where eyewitness testimony such as Mrs. Tautkus’s is the
only evidence placing a defendant at the scene of the crime.

Williams contacted the Tautkuses (who had been unable to
identify him in a photographic array) to obtain a statement
from them, as he had from Wood and Koranda, that Williams
was not the person they saw. The Tautkuses were not cooper-
2
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
does not apply to the merits of Williams’s appeal because his federal peti-
tion was filed before AEDPA’s effective date, Lindh v. Murphy, 521 U.S.
320, 327 (1997), but it does apply to the procedures for seeking review.
We review de novo a district court’s denial of a habeas petition filed
under 28 U.S.C. § 2254. Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir.
2003). A district court’s factual findings are reviewed for clear error.
Alcala v. Woodford, 334 F.3d 862, 868 (9th Cir. 2003). In pre-AEDPA
cases such as this, we review legal questions and mixed questions of law
and fact de novo. Mayfield v. Woodford, 270 F.3d 915, 922 (9th Cir. 2001)
(en banc). State court findings of fact are presumed correct to the extent
they are “fairly supported by the record.” 28 U.S.C. § 2254(d) (1994);
Mayfield, 270 F.3d at 922.
 WILLIAMS v. STEWART 4291
ative, so Williams subpoenaed them for a deposition on
August 28, 1983. Although Williams’s advisory counsel,
Richard Mesh, was present, Williams took the deposition
himself. The court denied his request to be relieved of mana-
cles and prison attire. Mrs. Tautkus found his appearance “a
little disturbing,” but testified at trial that it did not influence
her identification. The Tautkuses and Mesh got into some-
thing of a shouting match before the deposition began, caus-
ing the prosecutor to intervene. He told the witnesses that they
were there to help determine the accuracy of the information
in the police report and to see if they could identify Williams
as being the fellow they had seen on the day that Bunchek had
been shot; he added that he did not know personally whether
Williams had done the shooting and that he wanted the Taut-
kuses to testify truthfully to what they knew. Once the deposi-
tion began, Williams pressed Mrs. Tautkus to state whether he
was the person she saw walking on Malcomb Drive on March
12. She responded affirmatively when Williams took his
glasses off.

[1] The Arizona Supreme Court recognized that Mrs. Taut-
kus’s identification of Williams was under “extremely sug-
gestive circumstances,” but concluded that it did not offend
due process because it was Williams who procured the identi-
fication under suggestive circumstances. 166 Ariz. at 137. We
agree. Although the state had not indicated that it would call
the Tautkuses, Williams compelled Mrs. Tautkus to attend a
deposition where it was obvious that he was the only suspect.
He chose to conduct the deposition himself rather than have
advisory counsel do so. While the manacles and prison garb
were involuntary, they were reasonable in light of security
concerns and added only marginally to the suggestiveness cre-
ated by Williams’s voluntary presence and self-identification
as the defendant. Overall, we cannot say that the confronta-
tion was so “impermissibly or unduly suggestive under the
totality of the circumstances” that Williams was denied due
process. Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir. 1995)
(holding that the defendant’s voluntary presence at a suppres-
4292 WILLIAMS v. STEWART
sion hearing where identification was made was suggestive,
but not the sort of “unnecessary” or “impermissible” sugges-
tion that violates due process); see Neil v. Biggers, 409 U.S.
188, 196 (1972); Stovall v. Denno, 388 U.S. 293, 301-02
(1967).

In any event, as the district court found, even if the trial
court did violate Williams’s due process rights by admitting
the pretrial identification, the error was harmless. Mrs. Taut-
kus’s testimony did not have substantial and injurious effect
or influence in determining the verdict under Brecht v.
Abrahamson, 507 U.S. 619, 623 (1993). Cross-examination
brought out the weakness of her identification, the suggestive-
ness of the circumstances under which it was made, the few
seconds she had to see the suspect to begin with, the fact that
she had been unable to pick Williams out of the photo array,
and the two and a half years that had elapsed between her five
second encounter on March 12 and the deposition at which
she identified Williams. In addition, two other witnesses with
a better opportunity than Mrs. Tautkus to see the suspect testi-
fied that Williams was not the person they saw in the neigh-
borhood. Finally, strong circumstantial evidence connected
Williams to the scene — he rented a house a few minutes
away and a shoe print matching a pair of shoes he owned was
found on the Tancoses’ front door — and to the murder, given
that his gun killed John Bunchek and that Williams fled
immediately thereafter.

Williams’s alternative request for an evidentiary hearing is
unsupported and fails as well.

III

Williams faults admission of the statement he made in
response to the FBI agent’s question about the old man in
Scottsdale. Williams was read his Miranda rights just after he
was shot. Miranda v. Arizona, 384 U.S. 436 (1966). Either in
the ambulance or at the hospital, a nurse asked an FBI agent
 WILLIAMS v. STEWART 4293
“what did this guy do.” The agent responded that “he killed
a bunch of people down south.” Williams mumbled “no, no,
no.” The agent then asked, “What about the guy, the old man
down south?” (or “the old man in Scottsdale”). Williams then
said: “If I hadn’t been framed, that wouldn’t have happened
in the first place,” or “None of this would have happened if
I hadn’t been framed in the first place.” After a voluntariness
hearing, the trial court credited the agent’s testimony about
timing and determined that Williams’s statement was know-
ingly, intelligently, and voluntarily made after he was advised
of his Miranda rights and before he said that he wanted a law-
yer. The prosecution did not introduce the statement in its
case-in-chief, but Williams did. He now argues that his
silence in the interim between being administered the
Miranda warning, and making the statement, indicates that he
invoked his rights and didn’t waive them.3

[2] The district court agreed with the trial court’s findings
that Williams interjected himself into the conversation
between the nurse and FBI agent, that this interjection led to
the agent’s question, and that Williams voluntarily answered
it. So do we. See United States v. Andaverde, 64 F.3d 1305,
1313 (9th Cir. 1995) (implying waiver where a defendant did
not invoke his rights, then initiated a conversation, and later
did invoke his rights). Regardless, Williams’s statement
would have been admissible for the purpose the prosecution
sought to use it — to impeach Williams when he took the
stand. Oregon v. Elstad, 470 U.S. 298, 307 (1985). Accord-
ingly, Williams is not entitled to habeas relief on this account.

IV

Williams complains that the “other acts” evidence admitted
by the trial court was impermissible character evidence that
was prejudicial. It consisted of testimony concerning the Lar-
3
The only certified issue is whether Williams waived his Miranda
rights.
4294 WILLIAMS v. STEWART
son burglary that Williams committed in Virginia on Decem-
ber 2, 1980; the shoot-out between Williams and the FBI in
New York; Williams’s use of an alias, James Byrd, to buy the
Mauser .380 caliber automatic on October 16, 1980, to obtain
a Virginia driver’s license in that name, and to procure insur-
ance policies; and Williams’s opulent lifestyle, without appar-
ent means of support, when he was engaged to Diane Bowery.
“A habeas petitioner bears a heavy burden in showing a due
process violation based on an evidentiary decision,” Boyde v.
Brown, 404 F.3d 1159, 1172 (9th Cir. 2005), and Williams
has failed to carry it.

[3] The opulent lifestyle testimony presents no due process
problem because the trial court sustained Williams’s objection
and admonished the jury to disregard it. See United States v.
McCormac, 309 F.3d 623, 626 (9th Cir. 2002) (noting that
“juries are presumed to heed cautionary instructions”). Nor
does the evidence that Williams used a false name implicate
due process because it was necessary to tie Williams to the
gun that killed Bunchek; this could not be done if the person
named on the driver’s license used to purchase the gun had
really been Byrd instead of Williams. See Windham v. Merkle,
163 F.3d 1092, 1103 (9th Cir. 1998) (observing that admis-
sion of “other acts” evidence will violate due process only
when there are no permissible inferences the jury may draw
from it). Williams also conceded that he lied under oath and
used different aliases while in Scottsdale, so evidence of
another alias cannot have been unduly prejudicial.

[4] Evidence of the Larson burglary bears on the identity of
Bunchek’s killer. That the same gun belonging to Williams
was used to shoot at Larson and to kill Bunchek is a signature
element that links Williams to both burglaries. See, e.g.,
United States v. Higgs, 353 F.3d 281, 311-12 (4th Cir. 2003)
(holding that evidence of a nightclub shooting two months
prior to a murder was admissible identity evidence where the
caliber of the bullets fired at the nightclub was the same as the
caliber of the bullets fired in the murder). There are other sim-
 WILLIAMS v. STEWART 4295
ilarities as well: Both were daytime burglaries, in both the
doors were knocked open by bodily force, in both only small
items were taken, and in both the burglar directed a gunshot
at a witness. Williams left town immediately after both bur-
glaries. See, e.g., United States v. Quinn, 18 F.3d 1461, 1466
(9th Cir. 1994) (finding sufficient distinctiveness where two
bank robberies occurred close together in time and location,
were “takeover” robberies, and were committed by a person
of similar size and dress brandishing a similar weapon). The
jury was instructed not to consider evidence of other crimes
or acts as proof of the character of the defendant in order to
show that he acted in conformity therewith, but to consider it
only as evidence of proof of intent or identity. This properly
limited the jury’s consideration of the “other acts” and obvi-
ates Williams’s concern that his “other acts” were impermissi-
ble character evidence.

[5] Finally, evidence about the shoot-out was probative of
Williams’s identity as Bunchek’s killer because he still had
(and used) the Mauser .380 after the Bunchek murder. The
events surrounding Williams’s arrest also provided relevant
context for the statement that he made in route to, or at, the
hospital. Williams argues that he should have been allowed to
stipulate to possession of the gun, but due process does not
require as much. Old Chief v. United States, 519 U.S. 172,
186-87 (1997) (holding that “the prosecution is entitled to
prove its case by evidence of its own choice, or, more exactly,
. . . a criminal defendant may not stipulate or admit his way
out of the full evidentiary force of the case as the Government
chooses to present it.”).

Williams’s alternative request for an evidentiary hearing is
unsupported and no basis appears for granting it.

V

Williams asserts that the prosecutor engaged in misconduct
by submitting false evidence to the grand jury; tainting the
4296 WILLIAMS v. STEWART
Tautkus identification testimony by telling her that she was
only there to identify Williams as the person she saw in her
neighborhood; and concealing the location of McClaskey,
who was a critical defense witness. Williams refers to other
incidents as well, including abusive language and tampering
with evidence, that the district court properly found had not
been fairly presented to the Arizona Supreme Court. See Rose
v. Lundy, 455 U.S. 509, 510 (1982) (requiring exhaustion);
Castille v. Peoples, 489 U.S. 346, 351 (1989) (explaining that
to exhaust, a petitioner must “fairly present” claims to the
state’s highest court). The only allusion to these incidents
came in Williams’s supplemental motion for reconsideration
of the supreme court’s decision affirming his conviction and
sentence, and even so, only in the form of a record citation for
one of the incidents in connection with claims of ineffective
assistance of counsel. This is insufficient to present the issue
fairly and to preserve it for habeas review. Rose v. Palmateer,
395 F.3d 1108, 1110-11 (9th Cir. 2005) (holding that a peti-
tioner does not fairly present a Fifth Amendment claim to the
state courts when it is merely discussed as one of several
issues handled ineffectively by counsel).

Williams’s suborning perjury argument turns on an
exchange between the prosecutor and Detective Bingham.4 In
4
The colloquy was:
Q Did your department make any investigation at the residence
of Randy Cooper to recover any items or any types of evi-
dence?
A Yes. We recovered, through a search warrant, several items
from the room that he occupied. We also recovered, from
Mr. McClaski, in the garbage can, a shoe box which con-
tained some silverware, some other items. And the shoe box
was an NCC Tiger shoe box.
Q Did you, during the course of your investigation, attempt to
identify to some extent the type of shoe that made the imprint
on the door?
 WILLIAMS v. STEWART 4297
Williams’s view, Bingham falsely testified that Williams’s
fingerprints had been found at the crime scene and that the
footprint on the door of the Tancos residence matched his
shoes. The district court found that Bingham did not testify
falsely, and we agree. While the prosecutor’s query about
“that residence” could have been clearer, in context it is clear
enough that the line of questioning had to do with Randy
Cooper’s residence. The point was that Williams was “Randy
Cooper,” and thus that the NCC Tiger shoe box was Wil-
liams’s, not “Cooper’s,” because Williams’s fingerprints
showed that it was he, not someone named Cooper, who lived
at the residence. Nor was Bingham’s testimony about the shoe
print false, as it simply conveys the detective’s conclusion
that the type of shoe that made the imprint on the Tancos door
was an NCC Tiger running shoe, and that this was the type

A Yes, I did.
Q And what type of shoe made that imprint?
A An NCC Tiger running shoe.
Q Did you determine whether or not the subject at that point
wore or used the NCC Tiger running shoe?
A Yes. Those — that particular pair of shoes were purchased
by Mr. McClaski for a person that he called Randy Cooper.
Q Were there any fingerprints that came from that residence?
A Yes.
Q And had they been identified?
A Yes, they have.
Q By whom?
A By the F.B.I.
Q And what name have they been attached?
A Ronald Turney Williams.
Q And has Mr. Cooper been identified through fingerprints and
other means as a Ronald Turney Williams?
A Yes, he has.
4298 WILLIAMS v. STEWART
of shoe that McClaskey bought for “Randy Cooper.”
Bingham did not testify, as Williams suggests, that Williams
made the footprint. Regardless, any constitutional error in the
grand jury proceedings is harmless because Williams was ulti-
mately convicted of the offenses charged. United States v.
Mechanik, 475 U.S. 66, 70 (1986).

[6] During the “shouting match” that occurred after Mrs.
Tautkus arrived for her deposition, the prosecutor tried to
calm things down and in the process, remarked that “all we
were trying to do . . . was to determine the accuracy of the
information that was in the police report and whether or not
they could identify [Williams] as being the fellow who they
had seen in the neighborhood on the day that Mr. Bunchek
had been shot.” He added that he did not personally know
whether Williams was the person who did the shooting and
that Mrs. Tautkus should not prejudge the question. In the cir-
cumstances, we cannot see how this amounted to coaching
that “so infected the trial with unfairness as to make the
resulting conviction a denial of due process.” Donnelly v.
DeCristoforo, 416 U.S. 637, 643 (1974) (articulating standard
for prosecutorial misconduct).

The Arizona Supreme Court found that the prosecutor
tracked McClaskey down in Sonora, Texas, had a telephone
number for one of his neighbors, and turned this information
over to defense investigators before April 1983. Defense
investigators were able to contact the neighbor but apparently
not McClaskey. McClaskey told state investigators in this
time frame that he was going to California for surgery, and
evidently left Texas in May. The state did not immediately
disclose this to Williams, but did so at some point. The
supreme court found that Williams knew as much about
McClaskey’s whereabouts as the state, which “did not fail to
disclose relevant information to the defense.” 166 Ariz. at
142. This finding is entitled to a presumption of correctness
that Williams has not overcome. At most the evidence Wil-
liams relies upon shows that the state had kept in touch with
 WILLIAMS v. STEWART 4299
McClaskey when he was in Texas; there is no indication that
Williams made any effort to find out where McClaskey was
after his investigators were told that McClaskey was in
Sonora, or that the prosecution somehow “concealed” him.

Williams’s offers no reason why he should have an eviden-
tiary hearing on this issue, and we decline his request for
remand.

VI

Williams also claims judicial misconduct on account of the
trial judge’s display of bias and hostility. Williams cites the
judge’s requiring him to stay near counsel table during the
trial and threatening that he would be shot if he strayed;
requiring Williams to obtain permission from the guards
before getting a drink of water; and advising the guards to be
wary. The district court held that only the allegation of bias
because of the order to stay near counsel table was exhausted.
As to that claim, the court found that the trial judge went out
of his way to treat both parties evenhandedly, and that his
determination that Williams should stay near the counsel table
was based on legitimate security concerns. We agree.

[7] The trial judge ordered both Williams and the prosecu-
tor to remain at counsel table during trial so that it would not
appear that either side was being treated differently. Requir-
ing Williams to stay put was an entirely sensible precaution
given Williams’s history of escaping from custody and of vio-
lent encounters with law enforcement agents. He had been
charged by the West Virginia State Penitentiary with one
attempted escape from that facility, and later Williams in fact
escaped with fourteen other prisoners during the course of
which a police officer was killed. Williams was convicted of
first-degree felony murder for that episode. He also escaped
from the Peterson Place Hospital in West Virginia. And Wil-
liams had engaged in several outbursts, including physical
confrontations with deputies, during pretrial hearings. In these
4300 WILLIAMS v. STEWART
circumstances, reasonable security measures, as well as warn-
ings about non-compliance, were at once prudent and not
indicative of bias. See Liteky v. United States, 510 U.S. 540,
556 (1994) (noting that “[a] judge’s ordinary efforts at court-
room administration — even a stern and short-tempered
judge’s ordinary efforts at courtroom administration —
remain immune [from charges of bias]”). None of the judge’s
comments to which Williams now objects was made in the
presence of the jury. Further, the facts in this case are com-
pletely different from those in Walker v. Lockhart, 763 F.2d
942 (8th Cir. 1985), upon which Williams relies. There, the
judge instructed a deputy who was to escort the defendant to
church that if the defendant “made a move to shoot him down,
because he [the judge] didn’t want him brought back to him
because he intended to burn the S.O.B. anyway.” Id. at 946.
The judge here did not come close to displaying this kind of
raw judicial bias.

Williams concedes that he did not raise additional facts
showing bias or hostility in state court, but contends that addi-
tional instances should not be procedurally defaulted because
they supplement, rather than change, the basic claim that judi-
cial bias permeated the proceedings. However, he fails to
point to any conduct that arguably reveals an opinion derived
from an extrajudicial source, or “such a high degree of favor-
itism or antagonism as to make fair judgment impossible.”
Liteky, 510 U.S. at 555. Accordingly, even if claims other
than the requirement to stay at counsel’s table were
exhausted, they are of the same order of magnitude and are
thus subsumed within the conclusion that Williams’s right to
trial before an impartial judge was not offended.

VII

Williams maintains that the voir dire procedures used to
select jurors were unconstitutionally restrictive in scope and
substance for a number of reasons. The trial court conducted
voir dire, and we are not persuaded that it did so in a manner
 WILLIAMS v. STEWART 4301
that deprived Williams of an impartial jury. See Mu’Min v.
Virginia, 500 U.S. 415, 427 (1991) (recognizing that state
courts are afforded wide latitude in how they conduct voir
dire); Morgan v. Illinois, 504 U.S. 719, 729 (1992) (requiring
voir dire to be adequate enough to identify unqualified jurors).

In sum: The court’s failure to ask more than one follow-up
question of a prospective juror who had heard about the case
and remembered what she heard cannot have prejudiced Wil-
liams because the only facts that the juror remembered were
that Mrs. Bunchek was home and Mr. Bunchek went next
door. Nor does Williams suggest how he could be prejudiced
by the court’s asking only one member of the venire, rather
than all of them, whether he or she would only consider the
defendant’s guilt or innocence and not his possible punish-
ment; if anything, the question cuts against, rather than in
favor of, the defense. Williams claims that the court should
have excused one juror for cause who stated that she may
have been biased toward Williams because she was once bur-
glarized, but Williams did not make a cause challenge, and
the juror ultimately was not seated. The same applies to
another prospective juror whose father had been shot by his
brother; the judge asked whether this would carry over into
the trial and the juror responded negatively. Williams did not
request follow-up before passing the panel for cause, and he
used a peremptory challenge to remove this venireman. Like-
wise, Williams did not challenge a prospective juror who had
a good friend who was an FBI or customs agent but said that
she would not treat FBI agents’ testimony differently as a
result of this relationship. The trial judge also inquired
whether prospective jurors could set aside sympathy for the
victim’s wife if she testified, despite the fact that she was
deceased, but Williams does not explain how this was harmful
given that people may, or may not, testify for any number of
reasons. Finally, Williams did not try to show the trial court
(or us) how refusing to provide the venire with his question-
naire made any difference. As his advisory counsel acknowl-
edged, most of its 150-200 form questions were duplicative of
4302 WILLIAMS v. STEWART
the court’s voir dire, and Williams did not request specific,
further questions of particular jurors before accepting the
panel.

VIII

Prior to trial, Williams asked the trial court for funds to
secure the attendance of various out-of-state witnesses. After
a hearing, the court determined that a number of them were
not material. Williams correctly notes that he had a right to
submit relevant testimony, Chambers v. Mississippi, 410 U.S.
284, 302 (1973), and to compel the attendance of witnesses in
his defense, Washington v. Texas, 388 U.S. 14, 18 (1967);
A.R.S. § 13-4093, but he has not made a plausible showing of
how the testimony of absent witnesses would have been mate-
rial and favorable to his defense. United States v. Valenzuela-
Bernal, 458 U.S. 858, 867 (1982) (adopting this requirement
for purposes of the compulsory process clause); A.R.S. § 13-
4093 (making funds available for material witnesses). Wil-
liams now claims that Frank Passarella, Dr. DeRossi, Leonard
Joy, Luther Cook and Jerry Likens were material because they
would have testified to the circumstances surrounding the
inculpatory statement that he made to the FBI, and that Bill
Mason would have made a difference by helping to show that
McClaskey was the killer. The district court agreed with the
trial court on the lack of materiality, as do we.

Passarella was Williams’s former attorney whom he prof-
fered to testify that FBI agents questioned him before contact-
ing counsel. Testimony to this effect would not have been
relevant, however, as the trial court found that Williams did
not request a lawyer prior to making the statement. As we
have explained, that finding is presumptively correct.

Dr. DeRossi was the Chief Surgeon in charge of the trauma
team that treated Williams following his arrest by the FBI, but
Williams’s investigator testified that DeRossi did not himself
treat Williams or know anything about his condition or opera-
 WILLIAMS v. STEWART 4303
tion except for information reflected in hospital records. Oth-
ers who did observe Williams at the time of his statement and
were knowledgeable about his treatment did testify, so Wil-
liams could not have been prejudiced by DeRossi’s absence.

Joy was an Assistant Public Defender who represented Wil-
liams during his arraignment at the hospital. According to
Williams, Joy would have testified that FBI agents were both-
ering Williams, that Williams told the FBI “to quit,” and that
he had tubes down his throat, IVs in his arm, stitches four or
five places, and was in shock. However, the trial court found
that Joy did not see Williams until 5:00 p.m. As he was not
percipient to Williams’s condition when the inculpatory state-
ment was made around 2:30 p.m, Joy’s only knowledge
would have come from Williams and was hearsay. There also
was no evidence that Joy would have testified to Williams’s
condition. Assuming that he would have, however, anything
Joy observed about the shape that Williams was in after sur-
gery has little bearing on his condition when he made the
statement.

Cook was a West Virginia police officer to whom Likens
admitted that he lied when he testified at Williams’s 1975
homicide trial that Williams had admitted killing the victim.
Williams proffered both witnesses to show that his statement
— “None of this would have happened if I hadn’t been
framed in the first place” — was not a confession but related
instead to the 1975 West Virginia murder conviction for
which Williams claims he was framed. At most, these wit-
nesses could have explained how Williams was framed; they
could not have explained what Williams meant by what he
said. What his statement meant was the only consequential
issue. Whether Williams was framed sheds no light on
whether Williams meant by “none of this would have hap-
pened” that he would not have been incarcerated, wouldn’t
have escaped, wouldn’t have been in Scottsdale, and wouldn’t
have been living with McClasky such that McClasky could
take Williams’s gun and use it with Bobby to commit the bur-
4304 WILLIAMS v. STEWART
glary and kill Bunchek — as he posits — or whether he meant
that he wouldn’t have been arrested in New York City after
precipitately leaving Scottsdale after burgling the Tancos resi-
dence and shooting Bunchek. Nor would the testimony of
Cook or Likens have related to the circumstances surrounding
what Williams told the FBI. Therefore, their proffered testi-
mony was neither relevant nor material.

Lastly, Mason was a Texas prosecutor who would have tes-
tified that there was an outstanding arrest warrant for
McClaskey for stealing a trailer. However, the fact that
McClaskey may have stolen a trailer does not make it more
likely that he, instead of Williams, killed Bunchek.

No basis appears for remanding for an evidentiary hearing,
as Williams alternatively requests.

IX

[8] Williams contends that he was denied competent assis-
tance of counsel when his appointed counsel failed to chal-
lenge false grand jury testimony and to provide the time,
money, and assistance needed to represent him. As a result,
Williams asserts that he was forced to undertake his own rep-
resentation. We have already explained that there was no false
grand jury testimony, so by definition counsel was not defi-
cient and Williams was not prejudiced by any failure to object
to Detective Bingham’s testimony. In any event, this could
not have influenced Williams’s decision to proceed pro se
because it wasn’t known at the time. Apart from this, a thor-
ough review of the record leaves no doubt that Williams’s
decision to invoke his Faretta rights and to represent himself
was knowing, intelligent, unequivocal and voluntary. Faretta
v. California, 422 U.S. 806, 834 (1975).

Williams was arraigned on April 3, 1983. Deputy Public
Defender Dennis Freeman was appointed to represent him.
On April 4, Freeman filed a motion for Williams requesting
 WILLIAMS v. STEWART 4305
that Williams be allowed to proceed pro se. At the hearing,
Williams had no particular reason for wanting to have Free-
man taken off the case, but explained that prison conditions
prevented him from being able to interact meaningfully with
Freeman or any other attorney. The trial court determined that
the conditions of Williams’s confinement did not unreason-
ably interfere with his ability to consult with counsel. Wil-
liams renewed his motion on April 18, 1983. He told the court
that he and Freeman had reached an impasse in their relation-
ship, that Freeman had never tried a capital case, and that
Freeman had said he was overloaded and that the public
defender’s office was short attorneys, investigators and secre-
taries. In these circumstances Williams was of the opinion
that the Maricopa County Public Defender’s Office could not
give him adequate representation. Before the court could rule,
Richard Mesh, an experienced public defender, stepped in to
replace Freeman. In turn, Mesh was relieved a week later, on
April 25, 1983, when Williams asked the court to reconsider
his request to proceed pro se. At the hearing, Williams stated
that he had given the matter a good deal of consideration. Fac-
tors he mentioned were the budget problems of the Public
Defender’s Office, the charges and the sentences, the physical
conditions at the jail, and “a number of other things.” Wil-
liams expressed no displeasure with Mesh and offered to
work with him in the capacity of advisory counsel. He indi-
cated to the court that he had represented himself in two pre-
vious cases, one of which went to trial. The trial court
engaged in an extensive colloquy during which Williams
demonstrated that he had “picked up quite a bit in [his] court-
room experiences,” indicated that he understood the nature of
the charges and the sentences that he faced as well as the pit-
falls of representing himself and the ground rules by which
trial would be conducted, and averred that he wanted “to han-
dle this case personally, manage and conduct this defense on
[his] own.” After receiving Williams’s written waiver of
counsel, and finding that Williams knowingly, intelligently
and voluntarily gave up his right to counsel, the court acceded
to Williams’s request to represent himself but appointed Mesh
4306 WILLIAMS v. STEWART
as advisory counsel.5 Williams represented himself through-
out the guilt phase with Mesh as advisory counsel until Mesh
was hospitalized; when it became obvious that Mesh could
not continue, he was replaced as advisory counsel by another
public defender, Robert S. Briney, who was familiar with the
case.

All arguments that Williams now makes about counsel’s
ineffective performance have to do with Mesh’s assistance
after Williams invoked his Faretta rights and Mesh became
advisory counsel. For example, Williams maintains that Mesh
was not able to devote more than eight hours a week to his
case, was too overburdened to make phone calls, told him that
the work was more than he had ever encountered, did not
promptly process the motions that Williams wanted him to
type, refused to type a list of voir dire questions, and failed
to prepare some diagrams. These alleged deficiencies were
brought to the trial court’s attention in connection with Wil-
liams’s request for the appointment of additional advisory
counsel. Even so, Williams acknowledged, “There’s no prob-
lem with Mr. Mesh. He’s done — as far as I’m concerned,
he’s doing a terrific job with the amount of time that he has
available.” The trial court observed that Mesh was one of Ari-
zona’s most able lawyers, and the district court found no indi-
cation that Mesh was not conducting Williams’s defense in a
capable manner or that there was irreconcilable conflict.

It is well settled that we “indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.” Strickland v. Washington, 466 U.S.
668, 689 (1984). Williams does not show any respect in
which Mesh’s performance was unprofessional during the
week that he served as counsel before Williams chose to rep-
resent himself, nor any respect in which their relationship was
conflicted. His waiver could not, therefore, have been influ-
5
The court asked Williams again on June 14, 1983, whether he still
wanted to represent himself, and he said that he did.
 WILLIAMS v. STEWART 4307
enced, let alone coerced, by ineffective assistance of counsel.
See Crandell v. Bunnell, 144 F.3d 1213, 1216 (9th Cir. 1998),
overruled in part on other grounds, Schell v. Witek, 218 F.3d
1017, 1025 (9th Cir. 2000) (stating the rule that a defendant
cannot be forced to choose between an incompetent counsel
and no counsel, or to proceed when he has an irreconcilable
conflict with appointed counsel).6

X

Williams maintains that he was denied expert mental health
assistance that was needed to prepare a defense. Prior to trial,
he filed two motions seeking the appointment of a psychia-
trist. See Rule 11, Ariz.R.Crim.P., 17 A.R.S. In his Motion for
Psychiatric Examination of Incarcerated Defendant filed on
July 15, 1983, Williams requested a psychiatric examination
to determine whether he was “mentally liable and responsible
on March 12, 1981.” The motion was unsupported and the
trial court denied it because Williams had failed to produce
any evidence of a mental problem. The court also noted that
Williams was not advancing an insanity defense at that time.

On October 20, 1983 Williams filed a motion to Have
Defendant’s Mental Condition Examined that sought appoint-
ment of two mental health experts to determine whether he
suffered from a mental disease or defect on March 12, 1981,
or currently. This motion was supported by reports of court-
ordered psychiatric examinations in 1964 and 1970. There
were three 1964 reports. The first diagnosed him as having
“sociopathic personality disturbance, anti-social reaction.”
The second offered a tentative diagnosis of “psychoneurotic
6
Williams makes no free-standing claim ineffectiveness assistance of
counsel, nor could he. Having failed to show that his decision to represent
himself was involuntary, Williams cannot claim that he was denied the
effective assistance of counsel at trial. See Faretta, 422 U.S. at 834, n.46
(stating that “a defendant who elects to represent himself cannot thereafter
complain that the quality of his own defense amounted to a denial of
‘effective assistance of counsel”).
4308 WILLIAMS v. STEWART
disorder, depressive reaction” and “schizophrenic reaction,
catatonic type.” The third 1964 report found that testing bore
out a diagnosis of “chronic undifferentiated schizophrenia”
that was “incipient, but progressing.” The 1970 report diag-
nosed Williams as having “antisocial personality.” Hallucina-
tions were denied. The reports indicated that Williams was
bright intellectually with a high IQ, and Williams advised the
court that he had no treatment since these examinations. At
the hearing, advisory counsel indicated that Williams does
“wave in, wave out”; that when things were going well for
Williams he was a joy to have as a client but when things
were not going well, he was as difficult a client as any; and
that Williams wanted to bring to the court’s attention “that,
for all he knows, he may have been under some kind of psy-
chiatric disorder at the time of his alleged involvement with
Mr. Bunchek that might be of a defensive nature to him that
he’s not the proper person to evaluate it.” The trial court
denied the motion as it found nothing in the reports to show
that Williams was incompetent or insane.

The Arizona Supreme Court agreed with the trial court’s find-
ings.7 It concluded that neither Arizona Rule 11, nor the due
process clause, nor Ake v. Oklahoma, 470 U.S. 68 (1985),
supported Williams’s position that a psychiatrist must be
7
As the court explained:
The nature of the crime, Williams’s conduct at trial, and prior
psychiatric examinations all suggest that Williams was sane at
the time of the offense and competent to stand trial. Although
Bunchek’s death was tragic and vicious, it did not occur under
unusual circumstances or in an unusual way; nothing about the
killing suggests that the murderer was insane. It is similarly
impossible to draw any inference of mental instability from Wil-
liams’s conduct at trial. Williams insisted on his right to represent
himself and in doing so he demonstrated remarkable ability.
Finally, Williams’s prior psychiatric examinations suggest only
that he is prone to engage in antisocial conduct. His subsequent
record indicates that this diagnosis was optimistic.
166 Ariz. at 139.
 WILLIAMS v. STEWART 4309
appointed whenever a criminal defendant states that he is con-
templating an insanity defense. Rather, the court held that
some threshold showing that the appointment is reasonably
necessary is required, and Williams had made none.

The district court found that Williams failed to establish
that his sanity was likely to be a significant factor in his
defense. It also emphasized that the defense Williams
advanced at trial was that McClaskey and Bobby had commit-
ted the burglary and murder.

[9] Ake, which was decided after Williams was convicted
but before the Arizona Supreme Court resolved his direct
appeal, held that “when a defendant has made a preliminary
showing that his sanity at the time of the offense is likely to
be a significant factor at trial, the Constitution requires that a
State provide access to a psychiatrist’s assistance on this issue
if the defendant cannot otherwise afford one.” 470 U.S. at 74,
83. Of course, Williams cannot be expected to have foreseen
and thus to have made the showing contemplated by Ake,8 but
nothing in the record suggests that Williams’s mental health
could have been a substantial factor in his defense at trial.
Unlike for Ake, insanity was not Williams’s sole defense:
Williams’s behavior was not bizarre, and psychiatrists who
examined Williams after the guilt phase did not find that he
was incompetent, delusional, or psychotic. Id. at 86 (explain-
ing by reference to these points why it was clear from the
record that Ake’s mental state at the time of the offense was
a substantial factor in his defense). In these circumstances we
cannot say that psychiatric assistance would have been of
probable value. Id. at 82; cf. Gretzler v. Stewart, 112 F.3d
992, 1000 (9th Cir. 1997) (noting that even if Ake applied,
providing further assistance was not constitutionally required
8
Under Rules 11.2 and 11.3, Williams had to show that “reasonable
grounds for an examination exist.” Under Arizona law, evidence sufficed
for an examination if it created a doubt in the court’s mind about compe-
tency or sanity. Williams, 166 Ariz. at 139
4310 WILLIAMS v. STEWART
given testimony of two psychiatrists that the defendant’s san-
ity was not an issue). Williams’s mental condition was simply
not “seriously in question.” Ake, 470 U.S. at 70. Accordingly,
his due process rights were not violated.

Williams asks for a remand for an evidentiary hearing, but
suggests no basis upon which an evidentiary hearing should
be granted.

XI

[10] Finally with respect to the guilt phase, Williams con-
tends that the evidence was insufficient to support a convic-
tion. The district court found otherwise based on evidence
showing that: Williams possessed the gun that was used to kill
Bunchek before and after the murder; the shoe print found on
the door to the Tancos residence was consistent with a pair of
shoes worn by Williams; his roommates identified the suspect
in a composite sketch as Williams; Williams left Scottsdale
the day of the murder; Williams appeared to confess to Bun-
chek’s murder; the burglary Williams committed in Annan-
dale, Virginia further indicated that Williams was the Tancos
burglar; and the jury could reasonably disbelieve Williams as
he admitted that he lied under oath. Williams’s quarrel with
the district court’s analysis is essentially with the weight of
this evidence, but our review of the record also leaves us sat-
isfied that, viewing the evidence in the light most favorable
to the prosecution, a rational trier of fact could have found the
essential elements of the crimes beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979).

XII

We turn to the issues raised by Williams concerning his
sentencing phase. The state trial court imposed the death pen-
alty after it concluded that there were no mitigating circum-
stances and that there were two aggravating circumstances:
that Williams had two prior convictions for which life in
 WILLIAMS v. STEWART 4311
prison could be imposed and that the murder of Bunchek was
for pecuniary gain.

Williams presents several challenges relating to the prepa-
ration of two psychological evaluations and the presentence
report. As to the psychological evaluations, Williams argues
that he was denied an independent psychological evaluation
in violation of Ake, and that he was not given a Miranda
warning before meeting with two court-appointed mental
health experts. As to the presentence report, Williams argues
that he was not given a Miranda warning prior to meeting
with the probation officer. We address these contentions in
turn.

[11] Where the mental health of an accused person is genu-
inely in issue, due process requires the opportunity to have an
independent mental health expert to assist the defense. Ake v.
Oklahoma, 470 U.S. 68, 74 (1985). In Smith v. McCormick,
914 F.2d 1153 (9th Cir. 1990), we held that the Ake right to
an independent mental health expert applies not just at trial,
but also at the sentencing phase. Id. at 1157. However, for an
independent mental health expert to be constitutionally
required, the defendant must place his or her mental state at
issue. See id. We considered in Part X of this opinion, and
rejected, Petitioner’s Ake claim in the guilt phase proceedings,
because Williams did not make a threshold showing that his
mental state was in question. At the sentencing phase, Wil-
liams introduced no evidence, apart from the evidence previ-
ously introduced during the guilt phase, that suggested his
mental state was at issue. Because Williams’s Ake claim
regarding sentencing rests upon the same evidence as his
claim regarding guilt, and because we held that same evidence
was insufficient to establish a threshold showing that his men-
tal state would be at issue, we now hold also that he did not
make a threshold showing that his mental state would be at
issue during sentencing. Further, our additional review of the
record leads us to conclude that Williams’s mental health
could not have been a substantial factor during the sentencing
4312 WILLIAMS v. STEWART
phase. Vickers v. Stewart, 144 F.3d 613, 615 (9th Cir. 1998).
In sum, we conclude that Williams did not show that he
placed his mental health sufficiently at issue at sentencing to
require an independent mental health expert.

We next address Williams’s contention that constitutional
error occurred when he was not given Miranda warnings
before being examined by two court appointed mental health
experts. When Petitioner requested separate funds for a psy-
chological evaluation, the trial court informed Williams of
Rule 26.5, which provides:

At any time before sentence is pronounced, the court
may order the defendant to undergo mental health
examination or diagnostic evaluation. Reports under
this section shall be due at the same time as the pre-
sentence report unless the court orders otherwise.

Rule 26.5, Ariz.Rule.Crim.P., 17 A.R.S. The trial court said
that it would order a psychological evaluation under Rule
26.5, if that was what Williams was requesting. Williams ini-
tially replied that he was not requesting an examination under
Rule 26.5 but, after conferring with advisory counsel, Wil-
liams accepted the trial court’s offer of an examination under
that rule. The trial court then ordered two evaluations, one by
an expert that Williams recommended and one by an expert
the state chose. The trial court also ordered that the reports by
the two doctors be submitted to Williams, to the state, and to
the court.

[12] Both experts interviewed Williams, and thereafter sub-
mitted their reports as instructed by the trial court. It is estab-
lished that Williams was not given a Miranda warning before
either interview, and Williams claims this was reversible error
under Estelle v. Smith, 451 U.S. 454 (1981). In Smith, the
Court held that “[a] criminal defendant, who neither initiates
a psychiatric evaluation nor attempts to introduce any psychi-
atric evidence, may not be compelled to respond to a psychia-
 WILLIAMS v. STEWART 4313
trist if his statements can be used against him at a capital
sentencing proceeding.” Id. at 468. The Court clarified the
scope of Smith in Buchanan v. Kentucky, 483 U.S. 402
(1987), holding:

[I]f a defendant requests such an evaluation or pre-
sents psychiatric evidence, then, at the very least, the
prosecution may rebut this presentation with evi-
dence from the reports of the examination that the
defendant requested. The defendant would have no
Fifth Amendment privilege against the introduction
of this psychiatric testimony by the prosecution.

Id. at 422-23. Here, Williams requested an independent psy-
chological evaluation, and eventually accepted the trial
court’s offer of a Rule 26.5 examination. Because Williams
requested a psychological evaluation, and thereafter agreed to
participate in a Rule 26.5 examination, we hold that the Fifth
Amendment did not require that Williams be given Miranda
warnings before he was examined by the mental health
experts.

[13] Williams also argues that he should have been given
a Miranda warning before being interviewed by the probation
officer who prepared the presentence report. We have previ-
ously held in Hoffman v. Arave, 236 F.3d 523 (9th Cir. 2001),
that the Fifth Amendment privilege applies during presen-
tence interviews. Id. at 538. But in Hoffman we held that there
was no Fifth Amendment violation because Hoffman was
informed of his right to remain silent prior to the presentence
interview. Id. By contrast, Williams was not informed of a
right to remain silent before his presentence interview.
Accordingly, the presentence interview of Williams was con-
ducted in violation of the Fifth Amendment.9
9
The state argues that Hoffman is a new rule which, under Teague v.
Lane, 489 U.S. 288 (1989), cannot be applied retroactively. However, we
expressly rejected that argument in Hoffman. See 236 F.3d at 537-38. This
4314 WILLIAMS v. STEWART
Having concluded that the presentence interview violated
Williams’s Fifth Amendment privilege against self incrimina-
tion, we next consider whether that was harmless error under
Brecht v. Abrahamson, 507 U.S. 619 (1993). See Pizzutto v.
Arave, 280 F.3d 949, 970 (2002) (applying harmless error
analysis to a Fifth Amendment violation for using “uncoun-
seled, non-Mirandized statements” against a capital defen-
dant). Applying the standard of Brecht, we must decide
whether the error “had substantial and injurious effect or
influence” on the proceedings. 507 U.S. at 623 (quoting Kot-
teakos v. United States, 328 U.S. 750, 776 (1946)).

[14] We conclude that the introduction of the presentence
report was harmless error. In arguing to the contrary, Wil-
liams contends that the report relied on his statements in
which he had downplayed a troubled family background. He
also points to statements in the report that suggest that he was
callous and indifferent to the harm caused to others by his
past criminal activity. However, the presentence report also
stated that Williams reasserted his innocence during the pre-
sentence interview, claimed that he had never harmed any-
body during his prior criminal activities, and asserted that he
had previously attempted to save the life of a drowning child.
Reviewing his statements given in the presentence interview
as a whole, and assessing their possible impact on the trial
court, we cannot conclude that the introduction of the presen-
tence report before the sentencing judge “had substantial and
injurious effect or influence” on the sentencing proceedings.
The admission of the PSR was also harmless because there
was no testimony in the PSR that was not presented previ-
ously by other sources.

panel cannot revisit precedential decisions made by other panels of this
court, except in the limited case where intervening higher authority
negates a prior circuit precedent. See, e.g., Miller v. Gammie, 335 F.3d
889, 893 (9th Cir. 2003) (en banc). Accordingly, we reject the state’s
Teague argument.
 WILLIAMS v. STEWART 4315
We also conclude that there is no proper basis for Wil-
liams’s request for an evidentiary hearing on these issues.

XIII

Williams maintains that the trial court misused Williams’s
assertion of innocence against him when it denied his request
to investigate potential mitigating evidence, and when it
found that there was no possibility that Williams would be
rehabilitated.

Williams first argues that the trial court held Williams’s
assertion of innocence against him when it denied Williams
the funds necessary to investigate and present mitigating evi-
dence. Although Williams presents this argument in broad
and extravagant terms, the only evidence in the record to
which he cites in support of this claim, and the only specific
claim addressed by the district court, concerns a request for
genetic testing.

[15] Williams requested that the trial court provide defense
funds to test for an XYY chromosome abnormality, which
might have shown that Williams was genetically predisposed
to violent behavior. Williams’s claim turns on an exchange
with the trial court, in which the court sought to understand
how evidence of a chromosome abnormality would be mitigat-
ing.10 Although the trial court was skeptical how Williams
(Text continued on page 4317)

10
The colloquy was:
Q I’m concerned, Mr. Williams, because you are telling me that
you want this examination to show propensity for violence
because of a chromosome defect, and it’s you talking. You
are representing yourself, and I cannot view what you do as
anything but yourself. The only relevance to this would be if
you are admitting that you did these things and you are now
telling me that you have a chromosome abnormality. It is
your position under oath that you did not do this in which
case this couldn’t be mitigating because if you have a violent
4316 WILLIAMS v. STEWART
personality it would be absolutely irrelevant since it’s your
claim that you did not do this at all.
A I’m not admitting anything. The jury came in with a verdict
saying I am guilty. By virtue of their verdict I am allowed to
bring before this court any and all mitigating circumstances.
That’s the jury’s verdict that you are accepting. If I say I am
not guilty, can I go home?
...
Q Tell me which side of your face you are talking out of. Are
you saying you did this and have a violent, aggressive behav-
ior and can prove it, and you want the state to provide funds
for a doctor to prove that? Or are you saying Ronald Turney
Williams, you, did not do it?
A Whether or not I am guilty, I am asking that this court con-
sider that fact of the chromosome deficiency as a mitigating
circumstance and appoint the expert in that field to make a
determination as to whether or not that is true.
Q All right. If you say Doctor Hecht is going to testify that you
have this XYY chromosome abnormality, and you are, there-
fore, predisposed to violent behavior, that that is a mitigating
circumstance. Is that your argument?
A I would like to be tested on it. If I am found to have it, then
I may very well use it.
...
Q Have you ever raised this issue in any other case?
I know you’ve submitted psychological reports dating back
to when you were 18, I believe. None of these give any indi-
cation of a genetic difficulty at all, or any mental inadequa-
cies.
A I have no idea whether or not I have any chromosome defects
or abnormalities either, but I would like to have this particu-
lar doctor do a check and see if I do. If I do, then, of course,
I would like to use it.
Q Well, in the absence of any clue that this is not purely fish-
ing, I will deny this motion.
If you will recall in the Rule 11 matter I followed the same
 WILLIAMS v. STEWART 4317
could proclaim his innocence and simultaneously argue that
whatever crimes he had committed were on account of a
genetic abnormality, the trial court did not deny funds for the
testing because Williams maintained he was innocent. Rather,
Williams offered no evidence suggesting that testing was war-
ranted, and admitted that he had “no idea” whether he had a
chromosome abnormality. We conclude that the trial court did
not use Williams’s assertion of innocence against him in this
respect.

Williams also argues that the trial court held his assertion
of innocence against him when the trial court found that there
was no possibility of rehabilitation. Williams does not cite to
the record to support this claim, and the state argues that the
trial court found that Williams could not be rehabilitated
based on his long and violent criminal history. But even if the
trial court did consider Williams’s assertion of innocence
when it found that Williams could not be rehabilitated, this
was not error. See Gollaher v. United States, 419 F.2d 520,
530 (9th Cir. 1969) (“It is almost axiomatic that the first step
toward rehabilitation of an offender is the offender’s recogni-
tion that he was at fault.”). We hold that the state trial court
in sentencing did not offend the Fifth Amendment by penaliz-
ing Williams for asserting his innocence.

XIV

When detailing potential aggravating circumstances at the
presentence hearing, the prosecutor cited the Larson burglary
in Virginia and Williams’s use of a gun when he was arrested
in New York by the FBI. Williams argues that because he had
not been convicted in connection with these incidents, the trial
court should not have considered them to be aggravating cir-
cumstances. See A.R.S. § 13-703(E) (Supp. 1986) (enumerat-
ing specific aggravating circumstances). Williams has cited

pattern. There had to be some evidence justifying your claim
that you were not competent to stand trial.
4318 WILLIAMS v. STEWART
no authority, and we have found none, stating that the trial
court could not consider other potential aggravating circum-
stances. Further, considering prior unadjudicated criminal
conduct is permissible under Arizona law under some circum-
stances. See State v. Rossi, 830 P.2d 797, 800 (Ariz. 1992)
(“While defendant had no felony convictions, he had been
arrested for theft, forgery, drug offenses and possession of a
firearm, facts that a court may legitimately consider when
lack of a conviction record is advanced as a mitigating fac-
tor.”).

[16] We need not decide whether A.R.S. § 13-703(E) pro-
vides an exhaustive list of aggravating circumstances that a
court may consider. The district court found, and we agree,
that the trial court did not consider the unadjudicated offenses
when determining the existence of aggravating circumstances.
The record indicates that the prosecution sought to character-
ize the prior unadjudicated acts as aggravating circumstances,
but not that the trial court considered them to be aggravating
circumstances. Here, the trial court stated that it found only
two aggravating factors: that Williams was convicted of two
prior offenses for which life imprisonment could have been a
penalty under Arizona law, and that the murder of John Bun-
chek was for pecuniary gain. “[I]n the absence of any evi-
dence to the contrary, we must assume that the trial judge
properly applied the law and considered only the evidence he
knew to be admissible.” Gretzler v. Stewart, 112 F.3d 992,
1009 (9th Cir. 1997). In light of this presumption, and in
absence of evidence that the trial court considered Williams’s
prior unadjudicated acts when determining aggravating cir-
cumstances, we affirm the district court’s rejection of this
claim.

XV

Williams claims that he was unconstitutionally denied the
appointment of a mitigation investigator. Williams had the
assistance of James Vance, an investigator who assisted the
 WILLIAMS v. STEWART 4319
defense during the trial phase and who conducted a mitigation
investigation during the sentencing phase. Williams argues
that he was denied the resources to allow Vance to conduct
an adequate investigation, and that Williams should have been
appointed an additional private investigator.

There is no doubt that in appropriate circumstances a court
must provide investigative help to ensure that an accused has
received the effective assistance of counsel. We have previ-
ously held that “the effective assistance of counsel guarantee
of the Due Process Clause requires, when necessary, the
allowance of investigative expenses or appointment of inves-
tigative assistance for indigent defendants in order to insure
effective preparation of their defense by their attorneys.”
Mason v. Arizona, 504 F.2d 1345, 1351 (9th Cir. 1974). For
the appointment of an investigator to become constitutionally
necessary, the defendant must show that the services of the
investigator are required. Smith v. Enomoto, 615 F.2d 1251,
1252 (9th Cir. 1980) (“The present rule is that an indigent
defendant has a constitutional right to investigative services,
but that such right comes into existence only when some need
is demonstrated by the defendant.”) (citation omitted); see
also Caldwell v. Mississippi, 472 U.S. 320, 323 n.1 (1985)
(“Given that petitioner offered little more than undeveloped
assertions that the requested assistance would be beneficial,
we find no deprivation of due process in the trial judge’s deci-
sion [to deny funds for various investigators].”).

[17] The district court here found that Williams did not
make the requisite showing of need for an additional mitiga-
tion investigator. On February 29, 1984, the trial court stated
that it would grant Williams’s request for funds if Williams
made “some good faith showing . . . that there might be some
benefit somewhere to the defense.” Williams requested an
additional investigator in a motion submitted on March 6,
1984, but gave no argument in support of that motion. And at
no other time did Williams introduce evidence or argument in
support of his request for an additional investigator. Because
4320 WILLIAMS v. STEWART
we conclude that Williams did not meet his burden of making
a threshold showing that an additional investigator would be
helpful, we hold that the trial court’s denial of Williams’s
request for that other investigator was not constitutional error.

We similarly reject Williams’s claim that it was constitu-
tional error for the state trial court to deny Williams’s request
to fund a trip by Vance to West Virginia. The only informa-
tion Williams submitted to the trial court regarding this
request was a list of many people who lived in the area of
West Virginia, where Williams was raised. Williams did not
give any information other than possible witness names and
that they would be helpful. Because Williams offered nothing
more than “undeveloped assertions that the requested assis-
tance would be beneficial,” we cannot say there was constitu-
tional error in denying the request for travel. Under the
Supreme Court’s standards for scope of potentially mitigating
evidence, almost any statement by any person who knew Wil-
liams might have been admissible on the issue of mitigation,
subject to normal evidentiary rules restricting cumulative tes-
timony. Lockett v. Ohio, 438 U.S. 586, 604 (1978) (“[T]he
Eighth and Fourteenth Amendments require that the sen-
tencer, in all but the rarest kind of capital case, not be pre-
cluded from considering, as a mitigating factor, any aspect of
a defendant’s character or record and any of the circum-
stances of the offense that the defendant proffers as a basis for
a sentence less than death.”). But this does not mean that the
state had an obligation to fund investigation into the back-
ground and knowledge of every person whom Williams had
ever known who might comment about their experience with
him, when Williams did not make a threshold showing that
such an investigation would be helpful.

XVI

Williams argues that the trial court unconstitutionally
denied his right to have certain witnesses appear at the presen-
tence hearing, either by denying his request to fund their
 WILLIAMS v. STEWART 4321
travel or by the trial court’s denial of a continuance. Williams
provided a list of 150 potential mitigation witnesses to Vance,
and said that more names would be forthcoming. However, in
his Supplemental Motion for Reconsideration to the Arizona
Supreme Court, Williams argued that the trial court’s denial
of funds was unconstitutional regarding six witnesses: Robert
Blakely, Beverly Dawson, Ronald Heath, Sadie Williams,
Susan Brozek, and Rosemary Price. The district court con-
fined its analysis to these six witnesses, and that was correct
because the federal courts have jurisdiction in this habeas
context to consider only claims that were exhausted in the
state court. The district court assumed that all six were mate-
rial witnesses, but held that the failure to compel the wit-
nesses to attend did not have a substantial and injurious effect
on the sentence, and therefore that the error was harmless.

[18] “[T]he Compulsory Process Clause guarantees a crimi-
nal defendant the right to present relevant and material wit-
nesses in his defense . . . .” Alcala v. Woodford, 334 F.3d 862,
879 (9th Cir. 2003); see Chambers v. Mississippi, 410 U.S.
284, 302 (1973); Washington v. Texas, 388 U.S. 14, 17-19
(1967). A material witness is “[a] witness who can testify
about matters having some logical connection with the conse-
quential facts, esp. if few others, if any, know about those
matters.” Black’s Law Dictionary (8th ed. 2004). Although
we have not previously recognized the right to compel mate-
rial witnesses to testify in a presentence hearing, the Eighth
and Fourteenth Amendments entitle a defendant to present
relevant mitigating evidence at sentencing. See Eddings v.
Oklahoma, 455 U.S. 104, 112 (1982). Accordingly, the failure
to compel material witnesses to appear at a sentencing hearing
in a capital case can be a constitutional violation. However,
violations of the right to compulsory process are subject to
harmless error review. See United States v. Winn, 767 F.2d
527, 531 (9th Cir. 1985).

On this appeal, Williams discusses five witnesses: Robert
Blakely, Beverly Dawson, Ronald Heath, Sadie Williams, and
4322 WILLIAMS v. STEWART
Rosemary Price. He does not discuss Susan Brozek in his
opening or reply brief, and therefore has abandoned his claim
concerning this witness. Accordingly, we discuss only the
other five witnesses.

Robert Blakely was a former parole officer who supervised
Williams from 1965 until 1968. Blakely would have testified
that Williams “is intelligent, courteous, cooperative, kind, and
liked by everyone in the area.” Further, he would have testi-
fied that Williams did so well in prison that Blakely helped
Williams get early parole, that Williams was an “ideal paro-
lee,” and that he was a helpful person. The trial court found
Blakely to be a material witness, but denied Williams’s
request for a continuance to allow Blakely, who was unavail-
able for the hearing, to appear. The trial court accepted that
Blakely “would testify during the time he knew Mr. Williams
that he was a positive force of [sic] his fellow prisoners.”

Beverly Dawson was Petitioner’s ex-wife, and Williams
proffered to the trial court that she would have testified that
they cared very much for each other, and that Williams’s cur-
rent problems may have been the result of problems they had
during their marriage. Dawson was unavailable for the hear-
ing, and the trial court denied Petitioner’s request for a contin-
uance, but accepted that “she would say that their marriage
was so bad that it may have affected him 20 years later.”

Ronald Heath was a guard at the Moundsville Prison where
Williams was incarcerated. Williams proffered that Heath
would testify that Williams had a “strong character” and was
a positive influence in the prison.

Williams proffered the following from Vance regarding the
information Sadie Williams would provide:

Sadie Williams is the defendant’s mother. I spoke
with her on numerous occasions. Mrs. Williams
advised me that Ronald has never caused problems
 WILLIAMS v. STEWART 4323
in West Virginia, and that she believed that he grew
up as an ordinary boy and that he had a lot of love
in his heart and would have, on numerous occasions,
pick up stray dogs and cats and provide homes until
they could be placed. Ron was a regular church goer
and was known to help the older ladies across the
railroad tracks to the church and she further stated
that Mr. Williams on numerous occasions would
give children money and that he also would buy
clothes for children that could not afford them.

Rosemary Price was a juror at one of Williams’s earlier
murder trials. Williams stated that Price was a friend of his,
with whom he regularly corresponded and conversed with by
phone. Williams proffered that Price would have testified that
Williams counseled her during her divorce and helped her
cope.

[19] With the exception of Blakely, the trial court found
that Williams failed to make a threshold showing that the tes-
timony of the witnesses would aid the defense. The trial
court’s finding is fairly supported by the record. See Mayfield
v. Woodford, 270 F.3d 915, 922 (9th Cir. 2001). None of the
witnesses had substantial contact with Williams in the 10
years leading up to the trial, and it is not clear what their live
testimony would have added to aid the defense in its case of
mitigation. Even if the trial court erred by viewing the wit-
nesses, apart from Blakely, as not material, that error was
harmless. The trial court considered the proffered testimony
of each witness in determining whether there was mitigating
evidence.11 And Williams has offered no evidence, such as
affidavits of the witnesses, tending to show that their live tes-
timony would have differed from the proffered testimony.
11
The state trial court explained that “[t]he Court has considered all
aspects of the defendant’s character, propensities, record . . . and all evi-
dence offered by the defendant or the State which is relevant in determin-
ing whether to impose a sentence less than death.”
4324 WILLIAMS v. STEWART
Therefore, we hold that even if the denial of funds to allow
Heath, Mrs. Williams, and Price to testify in person was a
denial of Williams’s right to compulsory process, any error
was harmless.

Our analysis differs regarding Blakely and Dawson. The
trial court found Blakely to be a material witness, and
approved Petitioner’s request to fund Blakely’s travel. The
trial court did not find that Dawson was a material witness.
However, both Blakely and Dawson were unavailable during
the presentence hearing, and the trial court denied Williams’s
request for a continuance. “Generally, a decision to grant or
deny a continuance is reviewed for an abuse of discretion.”
United States v. Studley, 783 F.2d 934, 938 (9th Cir. 1986).
Where a constitutional right is at issue, “a court must balance
several factors to determine if the denial was ‘fair and reason-
able.’ ” Id. (quoting United States v. Leavitt, 608 F.2d 1290,
1293 (9th Cir. 1979) (per curiam)). These factors include,
inter alia, whether previous continuances have been granted;
whether the parties, the court, or counsel would be inconve-
nienced; whether there are legitimate reasons for the delay;
whether the denial would prejudice the defendant; and
whether the delay is the defendant’s fault. Id.

[20] Applying those factors, we determine that there was no
abuse of discretion by the state trial court in its decision not
to grant a continuance to facilitate the appearance of Blakely
and Dawson at the sentencing hearing. Williams repeatedly
sought to delay the hearing by requesting continuances, draw-
ing out hearings, and delaying in tendering his list of potential
mitigation witnesses. And the trial court granted Williams a
continuance for a month to allow him time to find mitigation
witnesses on a previous occasion. Further, Williams has not
demonstrated that he suffered prejudice as a result of the fail-
ure to grant the continuance. The trial court accepted the prof-
fered testimony concerning Blakely and Dawson, and there is
no indication that their live testimony would have differed
 WILLIAMS v. STEWART 4325
from the proffered testimony. Accordingly, we deny Wil-
liams’s request for relief on this ground.

XVII

Williams argues that the trial court refused to consider rele-
vant mitigating evidence. Specifically, he argues that the trial
court refused to consider his troubled family history, that it
refused to consider his claim that he was innocent of the prior
murders for which he was convicted, and that it ignored “a
variety of reasons that [Williams] should not die.”

We have recognized a distinction between a failure to con-
sider relevant evidence and a conclusion that such evidence
was not mitigating. In a capital case, a sentencing judge can-
not refuse to consider any relevant mitigating evidence.
Eddings v. Oklahoma, 455 U.S. 104, 113-14 (1982) (“Just as
the State may not by statute preclude the sentencer from con-
sidering any mitigating factor, neither may the sentencer
refuse to consider, as a matter of law, any relevant mitigating
evidence.”). Further, the sentencing court may not confine its
analysis to mitigating factors listed in the state sentencing
statute. Hitchcock v. Dugger, 481 U.S. 393, 398-99 (1987).

Although a sentencing court may not refuse to consider any
relevant mitigating evidence, “a sentencer is free to assess
how much weight to assign to such evidence.” Ortiz v. Stew-
art, 149 F.3d 923, 943 (9th Cir. 1998); see also Eddings, 455
U.S. at 114-115 (“The sentencer . . . may determine the
weight to be given relevant mitigating evidence. But they may
not give it no weight by excluding such evidence from their
consideration.”). Once mitigating evidence is allowed in, a
finding that there are “no mitigating circumstances” does not
violate the Constitution. Ortiz, 149 F.3d at 943. Further, the
trial court is not required to “itemize and discuss every piece
of evidence offered in mitigation.” Jeffers v. Lewis, 38 F.3d
411, 418 (9th Cir. 1994) (en banc). But it must be clear to the
reviewing court that the sentencing court considered all rele-
4326 WILLIAMS v. STEWART
vant mitigating evidence that was offered. Id. “It is sufficient
that a sentencing court state that it found no mitigating cir-
cumstances that outweigh the aggravating circumstances.”
Poland v. Stewart, 117 F.3d 1094, 1101 (9th Cir. 1997).

Williams claims that the trial court did not consider the rel-
evant mitigating evidence. But the record indicates otherwise.
Regarding Williams’s troubled family history, the trial court
stated:

The Court has considered evidence of defendant’s
family history, including the testimony that his father
was an alcoholic who verbally abused and rejected
the defendant, and that the defendant’s grandfather
and uncle encouraged him at an early stage of his life
to engage in criminal conduct. The Court finds that
none of this is a mitigating factor or calls for
leniency in the present case; and that defendant has,
without additional influence of his family, continued
a life of crime, fully aware of the unlawfulness of his
conduct, and fully capable both mentally and physi-
cally of conforming his conduct to the requirements
of the law at all times, including the times relevant
to the offenses of which he has been convicted in
this case.

To us, this passage indicates that the sentencing trial court
considered all of the mitigation evidence that was presented
concerning Williams’s abusive family background, and none-
theless found Williams’s mitigation case to be wanting.

Regarding Williams’s claim that he was innocent of the
prior two convictions, the trial court accepted Williams’s
proffer that the key witness against him in his first trial had
recanted, and that he was convicted of felony murder for his
second offense because he was not the triggerman. Frank Pas-
sarella, Petitioner’s attorney during his first murder trial, testi-
fied at the presentence hearing about the lack of evidence
 WILLIAMS v. STEWART 4327
linking Williams to that murder. Terry Britt, one of Petition-
er’s attorneys during his felony murder trial, also testified at
the sentencing hearing in this case, stating that there was no
evidence that Williams was the triggerman during that crime.
The state trial court stated generally that the court considered
all aspects of the defendant’s character, propensities, and
record, and the circumstances of the Bunchek murder, and
that it considered all evidence offered by the defendant or
state relevant to the sentencing determination. The trial court
in sentencing was not required to discuss every piece of evi-
dence. While admitting evidence of Williams’s conviction of
the prior offenses for which he was subject to life imprison-
ment, the trial court in the sentencing hearing permitted Wil-
liams to present evidence that he was innocent of the prior
offense of murder, and that he was not the triggerman in con-
nection with his prior offense of felony murder. The trial
court in sentencing concluded that the evidence was not miti-
gating in context balanced against Williams’s life of serious
and deadly crimes.

[21] Finally, Williams claims that the trial court ignored “a
variety of reasons that [Williams] should not die.” If this is an
argument that the trial court did not make particularized find-
ings as to each of Williams’s proffered mitigating circum-
stances, then that argument is foreclosed by Jeffers. See 38
F.3d at 418. If this is an argument that the trial court did not
consider other evidence offered in mitigation, then the prem-
ise is incorrect because the trial court considered all evidence
Williams offered in support of mitigation. In sum, the trial
court considered relevant mitigating evidence, weighed it
against aggravating circumstances, and concluded that mitiga-
tion was not warranted. The state trial court’s process of
deciding that death was a condign punishment for Williams
did not violate the Eighth or Fourteenth Amendments, and
Williams is not entitled to relief on this claim.

XVIII

[22] In 2002 the U.S. Supreme Court held that “[b]ecause
Arizona’s enumerated aggravating factors operate as ‘the
4328 WILLIAMS v. STEWART
functional equivalent of an element of a greater offense,’ the
Sixth Amendment requires that they be found by a jury.” Ring
v. Arizona, 536 U.S. 584, 609 (2002) (quoting Apprendi v.
New Jersey, 530 U.S. 466, 494 n.19 (2000)). Williams argues
that Ring should apply retroactively. However, that argument
is foreclosed by Schriro v. Summerlin, 542 U.S. 348 (2004),
which held that “Ring announced a new procedural rule that
does not apply retroactively to cases already final on direct
review.” Id. at 358.

Williams attempts to avoid Summerlin by relying on Adam-
son v. Ricketts, 865 F.2d 1011 (9th Cir. 1988) (en banc).
There, we held that the Arizona statutory scheme for impos-
ing the death penalty violated the Sixth Amendment because
aggravating circumstances were found by a judge, rather than
by a jury. Id. at 1023-29. Adamson was the law when Wil-
liams’s appeal was before the Arizona Supreme Court. How-
ever, while Williams’s appeal was pending before the U.S.
Supreme Court, that Court decided Walton v. Arizona, 497
U.S. 639 (1990), which effectively overruled Adamson. Id. at
647; see Richmond v. Lewis, 921 F.2d 933 (9th Cir. 1990)
(“The Supreme Court granted certiorari in Walton specifically
because of this circuit’s en banc holding in Adamson, and
Walton reached the opposite conclusion regarding the Arizona
statute’s constitutionality.”) (footnote omitted). Walton was
the law before Williams’s appeal became final on direct
review, which includes review in the U.S. Supreme Court,
and Adamson is therefore unavailing.

XIX

Williams contends that the psychiatrist and psychologist
who conducted mental health evaluations pursuant to Rule
26.5 were incompetent. He argues that each of them should
have conducted an extensive social and medical history, that
they should have conducted unspecified physical and neuro-
logical tests, and that the tests they did perform were incom-
plete and incompetently conducted. The district court held
 WILLIAMS v. STEWART 4329
that Williams did not show that the two court-appointed
experts were incompetent, that he failed to identify which
tests should have been conducted, and that his blanket asser-
tions that the tests were incomplete were insufficient to sup-
port the charge.

[23] Petitioner points to no evidence generated at trial, sen-
tencing, or during the more than twenty years since then,
showing that the two experts were incompetent. Williams
offers no affidavits from medical experts supporting that the
two experts were incompetent, gives no list of the tests that
in his view should have been conducted or what those tests
may have shown, and offers no evidence showing that the
tests that the experts conducted were incomplete. Because the
record does not contain evidence from Petitioner indicating
that the prior medical experts were incompetent, the district
court correctly held that this claim does not require relief.

Petitioner’s request for an evidentiary hearing on this claim
is unsupported, and is denied.

XX

[24] Next, Williams argues that Arizona’s treatment of
pecuniary gain as an aggravating circumstance is facially
unconstitutional because it does not “genuinely narrow the
class of persons eligible for the death penalty” and does not
“reasonably justify the imposition of a more severe sentence
on the defendant compared to others found guilty of murder.”
Zant v. Stephens, 462 U.S. 862, 877 (1983). However, we
rejected that argument in Woratzeck v. Stewart, 97 F.3d 329
(9th Cir. 1996), where we observed:

It is not true that everyone convicted of robbery
felony-murder is automatically death eligible. The
State needs to prove at sentencing that the killing
was done with the expectation of pecuniary gain.
Even if it is true that under many circumstances a
4330 WILLIAMS v. STEWART
person who kills in the course of a robbery is moti-
vated to do so for pecuniary reason, that is not neces-
sarily so. A defendant is free to argue that the killing
was motivated by reasons unrelated to pecuniary
gain.

Id. at 334-335 (citation omitted). We concluded that the Ari-
zona statute “sufficiently channels the sentencer’s discretion
and does not result in unconstitutionally disproportionate
imposition of the death penalty when applied to felony-
murder defendants.” Id. at 335. Applying this prior precedent,
we reject Williams’s argument that the pecuniary gain aggra-
vating factor is facially unconstitutional.

[25] In the alternative, Williams argues that the evidence
was insufficient to establish that he killed Bunchek for pecu-
niary gain. As we noted above with regard to the guilt phase,
we examine “whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond
a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979). The state trial court found that Bunchek was killed
because he discovered a burglary in progress, and that pecuni-
ary gain was a motivating circumstance. A rational trier of
fact could have found beyond a reasonable doubt that Wil-
liams killed Bunchek for pecuniary gain, and hence the evi-
dence was sufficient.

XXI

Williams argues that the Arizona death penalty statute is
unconstitutional as applied to him because his sentence is
arbitrary and capricious. He argues that the “trial and appel-
late courts agreed Petitioner proved his innocence of the prior
two convictions,” and therefore that the trial court unconstitu-
tionally considered the prior convictions aggravating factors.

[26] We reject this argument, which mischaracterizes the
record. The state trial and appellate courts did not agree that
 WILLIAMS v. STEWART 4331
Williams proved his innocence of the prior convictions.
Rather, the state trial court accepted Williams’s proffer that
the key witness in his first murder trial recanted, and that his
second conviction was for felony murder, not premeditated
murder. This testimony, even when credited, is not the equiv-
alent of a finding that Williams was innocent of the prior
offenses. Further, the trial court considered Williams’s claim
of innocence of the prior offenses in the context of mitigation.
After weighing the evidence the state trial court found that
Williams did not establish mitigation. Petitioner’s claim that
the trial court found him innocent of the prior offenses is not
correct, and as a result his claim that the death penalty is
unconstitutional as applied to him fails.

Williams also argues that the death penalty is unconstitu-
tional here because “there is significant doubt whether Peti-
tioner committed this crime.” Although the case against
Williams was based on circumstantial evidence, we held
above that the evidence—including Williams’s gun, footprint
and flight—was sufficient to support his conviction, and that
his trial was not constitutionally defective. Williams has not
offered any new evidence to cast doubt on his conviction for
the murder of John Bunchek. Williams’s assertion that there
is doubt about whether he committed this crime is foreclosed
by the jury’s determination of his guilt beyond a reasonable
doubt, and our determination that there was sufficient evi-
dence for the jury to so conclude.

Petitioner’s alternative request for an evidentiary hearing is
unsupported, and once more we determine that there was no
basis for requiring a hearing.

XXII

The district court found that Williams’s claim that execu-
tion by lethal injection violates the Eighth Amendment was
procedurally defaulted. Williams concedes that this claim was
not presented to the Arizona courts. However, Williams
4332 WILLIAMS v. STEWART
argues that he could not have raised the claim in his state pro-
ceedings because the facts supporting the claim had not yet
been discovered.

Williams’s claim is based on the 1995 affidavit of a pathol-
ogist, Dr. Karen Griest, who reviewed an autopsy report of
James Clark, who was executed in 1993 by lethal injection.
Dr. Griest states that in Arizona lethal injection is adminis-
tered in a way that causes extreme suffering and torture. Wil-
liams also relies upon a statement from Dr. Brunner. Dr.
Brunner concluded that Clark and John Brewer, who was exe-
cuted by lethal injection in 1993, likely experienced suffering
and torture.

[27] We may not reach the merits of procedurally defaulted
claims, that is, claims “in which the petitioner failed to follow
applicable state procedural rules in raising the claims . . . .”
Sawyer v. Whitley, 505 U.S. 333, 338 (1992). Under Arizona
law, a claim is procedurally defaulted if it is not raised in
compliance with Arizona Rule of Criminal Procedure 32. Ari-
zona v. Carriger, 692 P.2d 991, 995 (Ariz. 1984) (“Failure to
comply with Rule 32 procedure will result in a finding that
petitioner waived his right to present a Rule 32 petition.”).
Rule 32.1(e) allows a petitioner to seek post-conviction relief
if:

Newly discovered material facts probably exist and
such facts probably would have changed the verdict
or sentence. Newly discovered material facts exist if:

(1) The newly discovered material facts were dis-
covered after the trial.

(2) The defendant exercised due diligence in secur-
ing the newly discovered material facts.

(3) The newly discovered material facts are not
merely cumulative or used solely for impeachment,
 WILLIAMS v. STEWART 4333
unless the impeachment evidence substantially
undermines testimony which was of critical signifi-
cance at trial such that the evidence probably would
have changed the verdict or sentence.

Rule 32.1(e), Ariz.R.Crim.P., 17 A.R.S.

The first factor of the Rule 32.1 test is not in dispute. The
facts Williams relies upon were discovered by him in 1995,
long after his trial and presentence hearing. However, the dis-
trict court held that Williams did not satisfy the second factor
of the Rule 32.1 test, concluding that Williams did not exer-
cise due diligence in obtaining the evidence. Although Wil-
liams alleged that he did not discover the evidence, in the
form of the statements of Drs. Griest and Brunner, until 1995,
the district court found that Williams provided no reasons
why he could not have discovered these facts before filing his
supplemental petition for post-conviction relief to the Arizona
courts, which he filed on January 26, 1994.

[28] We agree with the district court. Williams does not
explain why he did not seek evidence between the time when
Arizona introduced lethal injection as a mode of execution in
late 1992 and when Williams filed in 1994 his supplemental
petition for post-conviction relief in the Arizona courts.

Williams requests an evidentiary hearing, but points to no
evidence in the record that is contested, and so we deny this
request.

XXIII

We reject Williams’s challenges to the district court’s
denial of Williams’s Amended Petition for Writ of Habeas
Corpus.

AFFIRMED.