FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH RUDOLPH WOOD, III,
Petitioner-Appellant, No. 08-99003
v. D.C. No.
CHARLES L. RYAN, interim 4:98-CV-00053-
Director, Arizona Department of JMR
Corrections, OPINION
Respondent-Appellee.
Appeal from the United States District Court
for the District of Arizona
John M. Roll, District Judge, Presiding
Argued and Submitted
November 18, 2011—San Francisco, California
Filed September 10, 2012
Before: Sidney R. Thomas, Ronald M. Gould, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Thomas
10815
WOOD v. RYAN 10819
COUNSEL
Julie S. Hall (argued), Law Offices of Julie S. Hall, Oracle,
Arizona; and Kevin C. Lerch, Law Office of Kevin C. Lerch,
Tucson, Arizona, for petitioner-appellant Joseph Rudolph
Wood, III.
Terry Goddard, Attorney General; Kent Cattani (argued),
Chief Counsel, Capital Litigation Section; and Amy Pigna-
tella Cain, Assistant Attorney General, Tucson, Arizona, for
respondents-appellees Charles L. Ryan et al.
OPINION
THOMAS, Circuit Judge:
Joseph R. Wood III, an Arizona state prisoner, appeals the
district court’s denial of his habeas corpus petition challeng-
ing his state convictions for murder and aggravated assault
and the imposition of the death penalty. We have jurisdiction
under 28 U.S.C. § 2253, and we affirm.
I
Petitioner Joseph Wood shot and killed his estranged girl-
friend, Debra Dietz, and her father, Eugene Dietz, on August
10820 WOOD v. RYAN
7, 1989 at a Tucson automotive paint and body shop owned
and operated by the Dietz family. The Arizona Supreme Court
described the facts as follows:
Since 1984, Defendant and Debra had maintained
a tumultuous relationship increasingly marred by
Defendant’s abusive and violent behavior. Eugene
generally disapproved of this relationship but did not
actively interfere. In fact, the Dietz family often
included Defendant in dinners and other activities.
Several times, however, Eugene refused to let
Defendant visit Debra during business hours while
she was working at the shop. Defendant disliked
Eugene and told him he would “get him back” and
that Eugene would “be sorry.”
Debra had rented an apartment that she shared
with Defendant. Because Defendant was seldom
employed, Debra supported him financially. Defen-
dant nevertheless assaulted Debra periodically.
[FN1]. She finally tried to end the relationship after
a fight during the 1989 July 4th weekend. She left
her apartment and moved in with her parents, saying
“I don’t want any more of this.” After Debra left,
Defendant ransacked and vandalized the apartment.
She obtained an order of protection against Defen-
dant on July 8, 1989. In the following weeks, how-
ever, Defendant repeatedly tried to contact Debra at
the shop, her parents’ home, and her apartment.
[FN2].
FN1. Debra was often bruised and some-
times wore sunglasses to hide blackened
eyes. A neighbor who heard “thuds and
banging” within Debra’s apartment cal-
led police on June 30, 1989, after finding
Debra outside and “hysterical.” The
WOOD v. RYAN 10821
responding officer saw cuts and bruises
on Debra.
FN2. Defendant left ten messages on
Debra’s apartment answering machine on
the night of Friday, August 4, 1989.
Some contained threats of harm, such as:
“Debbie, I’m sorry I have to do this. I
hope someday somebody will understand
when we’re not around no more. I do
love you babe. I’m going to take you
with me.”
Debra and Eugene drove together to work at the
shop early on Monday morning, August 7, 1989.
Defendant phoned the shop three times that morning.
Debra hung up on him once, and Eugene hung up on
him twice. Defendant called again and asked another
employee if Debra and Eugene were at the shop. The
employee said that they had temporarily left but
would return soon. Debra and Eugene came back at
8:30 a.m. and began working in different areas of the
shop. Six other employees were also present that
morning.
At 8:50 a.m., a Tucson Police officer saw Defen-
dant driving in a suspicious manner near the shop.
The officer slowed her patrol car and made eye con-
tact with Defendant as he left his truck and entered
the shop. Eugene was on the telephone in an area
where three other employees were working. Defen-
dant waited for Eugene to hang up, drew a revolver,
and approached to within four feet of him. The other
employees shouted for Defendant to put the gun
away. Without saying a word, Defendant fatally shot
Eugene once in the chest and then smiled. When the
police officer saw this from her patrol car she imme-
diately called for more officers. Defendant left the
10822 WOOD v. RYAN
shop, but quickly returned and again pointed his
revolver at the now supine Eugene. Donald Dietz, an
employee and Eugene’s seventy-year-old brother,
struggled with Defendant, who then ran to the area
where Debra had been working.
Debra had apparently heard an employee shout
that her father had been shot and was trying to tele-
phone for help when Defendant grabbed her around
the neck from behind and placed his revolver
directly against her chest. Debra struggled and
screamed, “No, Joe, don’t!” Another employee heard
Defendant say, “I told you I was going to do it, I
have to kill you.” Defendant then called Debra a
“bitch” and shot her twice in the chest.
Several police officers were already on the scene
when Defendant left the shop after shooting Debra.
Two officers ordered him to put his hands up. Defen-
dant complied and dropped his weapon, but then
grabbed it and began raising it toward the officers.
After again ordering Defendant to raise his hands,
the officers shot Defendant several times.
State v. Wood, 881 P.2d 1158, 1165-66 (Ariz. 1994). Wood
was arrested and indicted on two counts of first degree murder
and two counts of aggravated assault against the police offi-
cers who subdued him. Id. at 1166.
At trial, Wood conceded his role in the killings, but argued
that they were impulsive acts that were not premeditated. Id.
After a five-day trial, the jury found Wood guilty on all
counts. Id. at 1169. Following an aggravation and mitigation
hearing, the trial court sentenced Wood to imprisonment for
the assaults and to death for each murder. Id. at 1165.
In 1994, the Arizona Supreme Court affirmed Wood’s con-
victions and sentences. Id. The court also independently
WOOD v. RYAN 10823
reviewed the evidence of aggravating and mitigating circum-
stances and determined that the trial court correctly concluded
that the aggravating circumstances outweighed the mitigating
circumstances, thereby supporting the imposition of the death
penalty. Id. The United States Supreme Court denied certio-
rari, Wood v. Arizona, 515 U.S. 1147 (1995), and Wood’s
petition for rehearing, Wood v. Arizona, 515 U.S. 1180
(1995).
In 1996, Wood filed a state petition for post-conviction
review (PCR). The state post-conviction court and the Ari-
zona Supreme Court denied relief. In 2002, Wood filed a sec-
ond PCR petition. The state post-conviction court and
Arizona Supreme Court again denied relief.
In 1998, Wood filed a Petition for Writ of Habeas Corpus
in federal district court, followed by the filing of an Amended
Petition later that year. In 2006, the district court issued an
order on the procedural status of Wood’s claims, finding cer-
tain claims properly exhausted and ordering merits briefing on
those claims and dismissing others as procedurally barred.
Order Re: Procedural Status of Claims, Wood v. Schriro, No.
CV-98-053-TUC-JMR (D. Ariz. Mar. 21, 2006), ECF No. 63.
In 2007, the district court denied Wood’s remaining habeas
claims on the merits. Wood v. Schriro, No. CV-98-053-TUC-
JMR, 2007 WL 3124451, at *46 (D. Ariz. Oct. 24, 2007).
We review the district court’s denial of Wood’s habeas
petition de novo and its findings of fact for clear error. Stanley
v. Schriro, 598 F.3d 612, 617 (9th Cir. 2010). We review the
denial of Wood’s request for an evidentiary hearing for an
abuse of discretion. Id. Wood filed his habeas petition after
April 24, 1996, thus the Antiterrorism and Effective Death
Penalty Act (“AEDPA”) applies. Woodford v. Garceau, 538
U.S. 202, 204-07 (2003). To obtain relief under AEDPA,
Wood must show that the state court’s decision (1) “was con-
trary to” clearly established federal law as determined by the
Supreme Court, (2) “involved an unreasonable application of”
10824 WOOD v. RYAN
such law, or (3) “was based on an unreasonable determination
of the facts” in light of the record before the state court. Har-
rington v. Richter, ___ U.S. ___, 131 S. Ct. 770, 785 (2011)
(quoting 28 U.S.C. § 2254(d)).
II
The district court correctly determined that Wood was not
entitled to habeas relief on his claims that the prosecutor com-
mitted prejudicial misconduct in violation of his rights to due
process and a fair trial. The district court denied five claims
on the merits and concluded that four claims were procedur-
ally barred.
A
The district court was correct in its denial of Wood’s pro-
secutorial misconduct claims on the merits. Wood argues that
the prosecutor committed prejudicial misconduct by: (1)
cross-examining a psychologist about whether another doctor
had considered hypnotizing or administering amobarbital to
Wood; (2) eliciting testimony about a prior arrest, his employ-
ment history, and his personal relationships with previous
girlfriends and with Ms. Dietz; (3) cross-examining a psy-
chologist about Wood’s mental state; (4) cross-examining a
lay witness about Wood’s mental state; and (5) committing
cumulative error.
A prosecutor’s actions constitute misconduct if they “so
infected the trial with unfairness as to make the resulting con-
viction a denial of due process.” Darden v. Wainwright, 477
U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo,
416 U.S. 637, 643 (1974)). The “appropriate standard of
review for such a claim on writ of habeas corpus is ‘the nar-
row one of due process, and not the broad exercise of supervi-
sory power.’ ” Id. (quoting Donnelly, 416 U.S. at 642). On
habeas review, constitutional errors of the “trial type,” includ-
ing prosecutorial misconduct, warrant relief only if they “had
WOOD v. RYAN 10825
substantial and injurious effect or influence in determining the
jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637-38
(1993) (internal quotation marks omitted).
1
[1] The district court properly denied Wood’s claim that
the prosecutor committed misconduct by asking Dr. Allender,
a psychologist called as an expert witness by the defense,
whether he had considered hypnotizing or administering amo-
barbital to Wood. Wood, 2007 WL 3124451, at *6-8. On
direct examination, Wood’s counsel asked Dr. Allender ques-
tions about Wood’s alleged inability to remember the shoot-
ings. On cross-examination, the prosecutor probed Dr.
Allender’s understanding of Wood’s alleged memory loss.
Wood alleges the prosecutor committed misconduct by asking
the following line of questions:
Q: Didn’t Dr. Morris [another psychologist who
examined Wood] suggest that hypnosis or amobarbi-
tal might be ideal to discover whether [Wood] was
malingering?
A: He suggested that those might be techniques.
Q: With hypnosis, you place them under hypnosis in
order to find out what the truth of the matter was?
A: What the theory would be is if it is an uncon-
scious process, that you can probably do hypnosis or
use the sodium amobarbital to get past the conscious
defense or unconscious defense mechanisms.
Q: So you didn’t, did you attempt, did you request
a hypnosis evaluation?
A: I didn’t because I didn’t, I’m not as convinced
about those techniques as Dr. Morris is.
10826 WOOD v. RYAN
Q: Amobarbital, is that a truth serum?
A: That is what they call it, that is what people have
called it along the way.
[2] The Arizona Supreme Court denied this claim on direct
review. Wood, 881 P.2d at 1172-73. In doing so, the Arizona
Supreme Court reasonably applied clearly established law.
Although Wood argues that the evidence obtained by hypno-
sis or sodium amobarbital would have been scientifically
unreliable, the Arizona Supreme Court acknowledged that
“courts generally exclude testimony induced or ‘refreshed’ by
drugs or hypnosis” but determined that the prosecutor’s ques-
tions about amobarbital and hypnosis in Wood’s case were
“within the wide latitude permitted on cross-examination”
because they were “not intended to impugn [Wood] but to test
the basis and credibility of Dr. Allender’s opinions concern-
ing whether [Wood] was faking his asserted memory loss at
the time of the murders.” Id. at 1172-73.
Wood also contends that Dr. Allender appeared unqualified
because he did not consider this potential evidence, but the
record belies this assertion. Dr. Allender testified that he did
not perform hypnosis or administer amobarbital because he
was not convinced about the reliability of these tests. By
questioning the reliability of the tests, Dr. Allender demon-
strated his credibility as an expert by showing that a compe-
tent psychologist questions the use of methods and practices
that do not provide credible results. The prosecutor’s ques-
tions did not “so infect[ ] the trial with unfairness as to make
the resulting conviction a denial of due process.” Darden, 477
U.S. at 181.
2
[3] The district court also correctly denied Wood’s claims
that the prosecutor committed misconduct by eliciting testi-
mony about Wood’s prior arrest, employment history, per-
WOOD v. RYAN 10827
sonal relationships with previous girlfriends, and self-centered
relationship with Ms. Dietz. Wood, 2007 WL 3124451, at *8-
11. The Arizona Supreme Court addressed the prior arrest and
employment history claims. Wood, 881 P.2d at 1170-72.
However, it did not address the claims about Wood’s prior
relationships with other girlfriends or his allegedly self-
centered relationship with Ms. Dietz, so we must review these
two claims de novo. See Stanley v. Cullen, 633 F.3d 852, 860
(9th Cir. 2011).
The Arizona Supreme Court reasonably determined that the
prosecutor’s passing reference to Wood’s prior arrest on
cross-examination did not violate Wood’s right to due pro-
cess. On direct examination, Dr. Allender testified that he
reviewed police reports from the Tucson and Las Vegas
police departments. The prosecutor then followed up on
cross-examination by asking questions about these reports:
Q: Directing your attention, you said you had some
Las Vegas reports?
A: Yes.
Q: You had police reports from 1979?
A: I believe I did. I would have to flip through and
look for it if you want me to.
[The Court]: Maybe if you ask —
Q: Do you recall in 1979 an incident when [Wood]
was arrested for some criminal activity?
A: I think I found a report from ‘79 from Las Vegas.
[4] The Arizona Supreme Court determined that this line
of questioning did not deprive Wood of a fair trial because
“the prosecutor simply asked Dr. Allender to elaborate on the
10828 WOOD v. RYAN
reports he first mentioned on direct examination. The jury
never learned the details of the conduct underlying Defen-
dant’s Las Vegas arrest.” Wood, 881 P.2d at 1172. The court
concluded that “[b]ecause Dr. Allender relied on the reports
in forming his opinion of Defendant, the prosecutor’s cross-
examination was proper.” Id. This brief mention of Wood’s
prior misdemeanor did not deprive him of a fair trial. The
prosecutor referred to the misdemeanor only in passing during
the examination and he did not mention it in his closing argu-
ment.
The trial court had granted a motion in limine excluding the
introduction of this prior misdemeanor into evidence, and the
Arizona Supreme Court determined that Wood would have
been entitled to a limiting instruction that references to the
police reports were admissible only to show the basis of Dr.
Allender’s opinions had he objected. Id. at 1172. But to the
extent Wood argues this merits reversal, “it is not the prov-
ince of a federal habeas court to reexamine state-court deter-
minations on state-law questions.” Estelle v. McGuire, 502
U.S. 62, 67-68 (1991).
[5] The prosecutor’s references to Wood’s employment
history, prior relationships, and self-centered relationship with
Ms. Dietz also do not rise to the level of a due process viola-
tion. The Arizona Supreme Court properly concluded that the
challenged testimony regarding Wood’s employment history
was merely “perfunctory and undetailed” such that “its admis-
sion d[id] not rise to the level of fundamental error.” Wood,
881 P.2d at 1170. Similarly, the prosecutor’s questions that
elicited Wood’s former girlfriend’s testimony that Wood was
unfaithful and Margaret Dietz’s testimony that Wood was
selfish in his relationship with Debra Dietz were also perfunc-
tory and undetailed and they did not violate Wood’s due pro-
cess rights.
3
[6] The prosecutor did not commit prejudicial misconduct
by cross-examining Dr. Allender about Wood’s mental state.
WOOD v. RYAN 10829
Wood alleges that the prosecutor committed misconduct by
improperly raising the issue of Wood’s mental state at the
time of the incident in the following line of questions:
Q. Let me ask you, sir, I don’t know, you are talking
about impulsivity here today. Of the defendant. You
said the defendant has a trait of acting impulsively?
A. [Dr. Allender] That’s my belief, yes.
Q. Under the facts of this case as you understand
them, sir, how would a person who was not impul-
sive have committed this offense?
A. Had it been thought through and premeditated,
then I would say it was not impulsive. I see impul-
sivity as acting without forethought.
Q. Well, how would a non-impulsive person have
committed this offense?
A. I think they would have planned it out.
Q. So what you are saying is that this wasn’t planned
out, from what you know about the facts of this case
it wasn’t planned?
A. It is hard for me to say whether it is planned.
Well, I think Mr. Wood behaved in a general
sequence but given his lack of recall for the specific
offense, it is hard for me to know whether this was
planned out or not.
[7] The district court correctly concluded that this line of
cross-examination did not warrant the grant of habeas relief.
Even if the prosecutor’s questions arguably touched on
Wood’s state of mind at the time of the crimes, Dr. Allender’s
answers did not. He merely testified that he was not certain
10830 WOOD v. RYAN
if Wood had planned the shootings. This testimony did not
conflict with Wood’s impulsivity theory and did not deprive
Wood of a fair trial.
4
[8] The prosecutor did not commit prejudicial misconduct
by cross-examining Mona Donovan, a mutual friend of Wood
and Ms. Dietz, about Wood’s mental state. On direct exami-
nation, Donovan testified that Wood sometimes acted impul-
sively. On cross-examination, the prosecutor asked Donovan
about her pre-trial statement that Wood’s anger increased as
a situation worsened. Wood argues that the prosecutor com-
mitted misconduct by asking the following questions about an
incident at Ms. Dietz’s apartment:
Q: When [Wood] trashed the apartment, he trashed
the apartment to get some of his possessions and
avenge his anger? I was reading the question
[defense counsel] asked you on page 11, do you
know why he broke in? Answer, to get some of his
possessions, to avenge some of his anger by break-
ing possessions of [Ms. Dietz’s]. Do you recall that?
A: Yes.
Q: In fact I think there was a telephonic interview
that you gave to a legal assistant in my office on the
9th of October, do you recall when you were asked
why he did that, indicating that he probably, he was
probably very angry and did it out of spite?
A: I don’t recall the telephone conversation.
Q: Does that sound like something you would say?
A: I really don’t know, I don’t remember.
WOOD v. RYAN 10831
Q: Would you agree with that statement?
A: That he would do it out of spite?
The Court: Let’s quit asking this witness, the witness
why this defendant did or didn’t know why he did
something, there’s no way she could know it.
Q: You indicated did you not that he avenged some
of his anger by breaking and destroying some pos-
sessions of [Ms. Dietz’s]?
A: Yes.
The Court: Did you hear what I just said, quit asking
her about his mental state. Quit asking her about his
mental state.
Q: Well, when you say the word avenge, what do
you mean by the word avenge? Do you mean to get
revenge?
A: Yeah, I guess so.
Wood contends the prosecutor committed misconduct by
asking Ms. Donovan to speculate about Wood’s mental state
after the trial judge ruled that the question was improper.
Because the Arizona Supreme Court did not address this
claim on the merits, we review it de novo. Stanley, 633 F.3d
at 860.
[9] The district court correctly concluded that the question-
ing did not violate Wood’s right to a fair trial. Although the
prosecutor should have dropped this line of questioning after
the trial judge admonished him once, the improper follow-up
question about Wood’s mental state during an event unrelated
to the killings was not so prejudicial that it rendered the trial
fundamentally unfair. The fact that Wood had vandalized Ms.
10832 WOOD v. RYAN
Dietz’s apartment had already been established. Additionally,
the information elicited by the prosecutor was consistent with
the defense theory that Wood was impulsive and had anger-
control problems. Donovan’s testimony regarding Wood’s
motives in vandalizing the apartment was only tangentially
related to the issue of Wood’s state of mind at the time of the
shootings.
5
[10] Finally, the cumulative impact of each of the incidents
of alleged prosecutorial misconduct did not violate Wood’s
right to a fair trial. Even when separately alleged incidents of
prosecutorial misconduct do not independently rise to the
level of reversible error, “[t]he cumulative effect of multiple
errors can violate due process.” United States v. Nobari, 574
F.3d 1065, 1082 (9th Cir. 2009) (internal quotation marks
omitted). However, Wood’s allegations of prosecutorial mis-
conduct do not rise to the level of a due process violation even
when considered in the aggregate.
B
Wood raises additional prosecutorial misconduct claims
that the district court dismissed as procedurally defaulted.
Wood claims that the prosecutor committed prejudicial mis-
conduct by: (1) eliciting evidence that Wood was incarcerated
while awaiting trial; (2) eliciting false testimony regarding the
position of the bullets in the gun’s cylinder; (3) impugning
defense counsel’s motives; and (4) eliciting inflammatory vic-
tim impact evidence. We affirm the district court’s dismissal
of these claims because they were not fairly presented to the
state courts.
To fairly present a claim in state court, a petitioner must
describe the operative facts supporting that claim. Davis v.
Silva, 511 F.3d 1005, 1009 (9th Cir. 2008); see also Anderson
v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S.
WOOD v. RYAN 10833
270, 275-78 (1971). Wood concedes that the specific facts
underlying these claims were not presented on direct appeal,
but he argues that they merely constitute additional particular
instances of prosecutorial misconduct that do not fundamen-
tally alter the claim raised on direct appeal. However, a gen-
eral allegation that a prosecutor engaged in pervasive
misconduct is not sufficient to alert a state court to separate
specific instances of purported misconduct. See Picard, 404
U.S. at 275-78.
In the alternative, Wood argues that the first and last of
these claims — that the prosecutor committed misconduct by
eliciting evidence that Wood was incarcerated while awaiting
trial and eliciting inflammatory victim impact evidence —
were not defaulted because they were incorporated by refer-
ence to his state PCR petition in his petition for review.
The district court properly determined that these claims
were not fairly presented to the Arizona Supreme Court. As
the Supreme Court has explained:
[O]rdinarily, a state prisoner does not “fairly pre-
sent” a claim to a state court if that court must read
beyond a petition or a brief (or a similar document)
that does not alert it to the presence of a federal
claim in order to find material, such as the lower
court opinion in the case, that does so.
Baldwin v. Reese, 541 U.S. 27, 32 (2004).
Additionally, “a habeas petitioner who has failed to meet
the State’s procedural requirements for presenting his federal
claims has deprived the state courts of an opportunity to
address those claims in the first instance.” Coleman v. Thomp-
son, 501 U.S. 722, 732 (1991).
[11] Arizona law requires that a petitioner present the
issues and material facts supporting a claim in a petition for
10834 WOOD v. RYAN
review and prohibits raising an issue through incorporation of
any document by reference, except for appendices. Ariz. R.
Crim. P. 32.9(c)(1)(iv). Wood failed to comply with these
requirements and thereby failed to fairly present these claims
to the Arizona Supreme Court.
Finally, Wood argues that even if his false testimony claim
is procedurally defaulted, the district court erred by not reach-
ing the merits of this claim because failure to do so would
cause a fundamental miscarriage of justice. To establish a
“fundamental miscarriage of justice,” Wood must show that
“a constitutional violation has probably resulted in the convic-
tion of one who is actually innocent.” Schlup v. Delo, 513
U.S. 298, 327 (1995) (internal quotation marks omitted). He
must demonstrate that “it is more likely than not that no rea-
sonable juror would have convicted him in the light of the
new evidence.” Id. As a result, the Supreme Court has noted
that this exception “would remain ‘rare’ and would only be
applied in the ‘extraordinary case.’ ” Id. at 321.
[12] Wood does not meet this burden because considerable
evidence of his premeditation was introduced at trial. The
morning of the crime, Wood called the shop to determine
whether Debra and Eugene Dietz were there and, although he
regularly carried a gun with him, he brought more ammuni-
tion to the shop than was his habit. Wood, 881 P.2d at 1169.
He waited to shoot Eugene until after Eugene had hung up the
telephone, actively searched for Ms. Dietz, and held her
before shooting her, stating, “I told you I was going to do it,
I have to kill you.” Id. Evidence was also introduced detailing
Wood’s history of violence against Ms. Dietz, as were taped
messages in which Wood threatened her life. Id. at 1165 nn.1-
2. Given this evidence against Wood, it is not more likely
than not that no reasonable juror would have found him guilty
of premeditated murder beyond a reasonable doubt.
III
The district court correctly determined that Wood was not
entitled to habeas relief on his claims that he was denied
WOOD v. RYAN 10835
effective assistance of counsel at trial, sentencing, and on
appeal.
To establish ineffective assistance of counsel, a petitioner
must show that counsel’s performance was deficient and that
he was prejudiced by the deficiency. Strickland v. Washing-
ton, 466 U.S. 668, 687-88 (1984). Deficient performance is
established when “counsel’s representation fell below an
objective standard of reasonableness.” Id. at 688. In determin-
ing deficiency, “a court must indulge a strong presumption
that counsel’s conduct falls within the wide range of reason-
able professional assistance; that is, the defendant must over-
come the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.”
Id. at 689 (internal quotation marks omitted). To establish
prejudice, Wood must show “a reasonable probability that,
but for counsel’s unprofessional errors, the result of the pro-
ceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the out-
come.” Id. at 694. Under AEDPA review, “[t]he pivotal ques-
tion is whether the state court’s application of the Strickland
standard was unreasonable. This is different from asking
whether defense counsel’s performance fell below Strick-
land’s standard.” Richter, 131 S. Ct. at 785.
Ineffective assistance of counsel at sentencing claims are
also assessed according to the Strickland standard. 466 U.S.
at 695. The test for prejudice at sentencing in a capital case
is whether “there is a reasonable probability that, absent the
errors, the sentencer . . . would have concluded that the bal-
ance of aggravating and mitigating circumstances did not war-
rant death.” Id. AEDPA’s “objectively unreasonable”
standard also applies to ineffective assistance of counsel at
sentencing claims that are considered and denied by a state
PCR court. See Bell v. Cone, 535 U.S. 685, 698-99 (2002).
A
The district court correctly dismissed Wood’s claims that
his trial counsel’s performance was constitutionally ineffec-
10836 WOOD v. RYAN
tive. He contends that his trial counsel performed deficiently
by inadequately investigating and preparing his mental health
defense and failing to object to alleged instances of prosecu-
torial misconduct.
1
[13] Wood’s counsel’s investigation and preparation of
Wood’s mental health defense was not constitutionally inef-
fective. At trial, Wood conceded his role in the killings but
argued that they were not premeditated because he had acted
impulsively. Wood, 881 P.2d at 1166. Wood alleges that his
counsel rendered ineffective assistance in asserting an impul-
sivity defense by failing to provide Dr. Allender with suffi-
cient background material to testify effectively about his
mental health at trial. The record indicates that counsel ade-
quately prepared Dr. Allender for his testimony. At counsel’s
request, Dr. Allender thoroughly examined Wood over the
course of two days. During these examinations, Dr. Allender
administered several psychological tests and discussed
Wood’s drug and alcohol abuse, hospitalization history —
including his history of head injuries — and the incident
itself. Dr. Allender also reviewed psychological evaluations
by Dr. Boyer, Dr. Morris, and Dr. Morenz, the three other
mental health experts who also examined Wood. Each of
these evaluations discussed Wood’s personal history of alco-
hol abuse, his suicide attempts, and his head injuries. Given
this background preparation, Dr. Allender was prepared to
testify about Wood’s mental state.
Furthermore, Wood has not demonstrated prejudice. Coun-
sel presented an impulsivity defense and Wood has not dem-
onstrated a reasonable probability that a different or more
comprehensive presentation of that defense would have
resulted in a different verdict, especially in the face of the
overwhelming evidence of premeditation. See Williams v.
Calderon, 52 F.3d 1465, 1470 (9th Cir. 1995). Thus, the PCR
WOOD v. RYAN 10837
court did not unreasonably apply Strickland when it rejected
this claim.
2
[14] The district court properly rejected Wood’s claims
that his trial counsel was constitutionally ineffective for fail-
ing to object to the alleged incidents of prosecutorial miscon-
duct. The PCR court did not unreasonably apply Strickland in
determining that Wood failed to demonstrate prejudice. Many
of counsel’s decisions not to object at trial were consistent
with his presentation of an impulsivity defense. For example,
evidence elicited by the prosecutor concerning instances of
Wood’s erratic behavior was consistent with the strategy of
offering Wood’s impulsive personality as a defense to the ele-
ment of premeditation. See Wood, 881 P.2d at 1170. Addi-
tionally, the jury’s finding of premeditation was supported by
strong evidence at trial. See Wood, 881 P.2d at 1169. In light
of this evidence, Wood has not demonstrated a reasonable
probability that the result of the trial would have been differ-
ent had defense counsel objected to the alleged instances of
prosecutorial misconduct.
B
[15] The district court also properly dismissed as procedur-
ally defaulted Wood’s claim that his trial counsel was consti-
tutionally ineffective for failing to impeach three witnesses.
Wood claims that his trial counsel rendered ineffective assis-
tance by failing to impeach Anita Sueme, Eric Thompson, and
Donald Dietz for allegedly giving prior statements inconsis-
tent with their trial testimony. We affirm the district court’s
dismissal of this claim because it was not fairly presented to
the state courts.
To fairly present a claim in state court, a petitioner must
describe the operative facts supporting that claim. Davis, 511
F.3d at 1009; see also Anderson, 459 U.S. at 6; Picard, 404
10838 WOOD v. RYAN
U.S. at 275-78. Wood concedes that he did not raise these par-
ticular claims on direct appeal, but as with some of his claims
of prosecutorial misconduct, see supra Section II.B, he argues
that they merely constitute additional particular instances of
ineffective assistance of counsel that do not fundamentally
alter the claim raised on direct appeal. However, as with the
claims of prosecutorial conduct discussed previously, a gen-
eral allegation of ineffective assistance of counsel is not suffi-
cient to alert a state court to separate specific instances of
ineffective assistance. See Picard, 404 U.S. at 275-78.
C
The district court did not err in denying Wood’s claim that
his counsel failed to effectively assist him at sentencing. Spe-
cifically, Wood contends that his counsel failed to prepare and
present evidence of his diminished capacity, failed to prepare
him for his pre-sentence interview, and failed to assert his
military service as a mitigating factor.
1
Wood argues that his counsel failed to properly marshal
evidence of Wood’s personality changes following head inju-
ries and his social background, including his alcoholism and
mental illness. However, information regarding each of these
issues was put before the trial court. Evidence of Wood’s
reported head injuries was presented through Dr. Allender’s
testimony during the guilt stage of the trial. Dr. Allender testi-
fied that Wood’s head injuries did not cause a significant
behavioral change. Wood’s head injuries were also discussed
in the other mental health experts’ Rule 11 reports.
[16] Counsel was not ineffective for failing to present
additional evidence and argument at sentencing about Wood’s
head injuries because it had already been presented at trial.
See Bell, 535 U.S. at 699-700. Additional evidence of Wood’s
social background, including his history of substance abuse,
WOOD v. RYAN 10839
was also presented at sentencing by Dr. Breslow, a psychiatric
chemical dependency expert. Dr. Breslow reviewed Wood’s
medical and military records, statements from trial witnesses,
and the mental-health evaluations prepared by Dr. Morris, Dr.
Morenz, and Dr. Allender. He testified that Wood suffers
from alcohol, stimulant, amphetamine, and cocaine dependen-
cies. He explained that Wood’s substance abuse had a pro-
found effect on Wood’s personality by impairing his
judgment, making him more impulsive, and likely impacting
his behavior at the time of the killings. Thus, counsel devel-
oped and presented this mitigating evidence in detail and the
PCR court reasonably rejected Wood’s claim.
[17] Wood also argues that his counsel never requested or
acquired an in depth neurological evaluation. However, the
PCR court found that Wood’s counsel requested a brain map-
ping test, on Dr. Breslow’s recommendation, although that
request was denied by the trial court. Counsel attempted to
acquire the recommended evaluation and his failure to obtain
it does not render his performance constitutionally ineffective.
2
[18] The district court properly concluded that the PCR
court reasonably denied Wood’s ineffective assistance of
counsel claim that his counsel failed to prepare him for his
pre-sentence interview. Wood argues that he was not ade-
quately prepared because he did not express remorse for his
actions in his interview with the probation officer. But Wood
included expressions of remorse in a letter delivered by coun-
sel to the sentencing judge. The record also indicates that the
court did not consider Wood’s lack of remorse in the presen-
tence report as a factor in his sentence. Therefore, Wood does
not demonstrate prejudice from counsel’s performance
because he “has failed to show that the information relative to
remorse contained in the pre-sentence report had any effect on
the sentencing court’s decision to impose the death penalty.”
Clark v. Ricketts, 958 F.2d 851, 857-58 (9th Cir. 1991).
10840 WOOD v. RYAN
3
[19] The district court properly concluded that the PCR
court reasonably denied Wood’s ineffective assistance of
counsel claim on the ground that his counsel did not explicitly
present his military service as a mitigating factor in sentenc-
ing. Counsel presented Wood’s military records for consider-
ation by the trial court and the sentencing judge is presumed
to have known and applied the law correctly, which meant
giving consideration to this mitigating evidence.
4
The district court did not err in concluding that the PCR
court reasonably denied Wood’s claim that the cumulative
effect of trial counsel’s deficiencies entitles him to a new trial
and sentencing proceeding. “Separate errors by counsel at
trial and at sentencing should be analyzed together to see
whether their cumulative effect deprived the defendant of his
right to effective assistance.” Sanders v. Ryder, 342 F.3d 991,
1001 (9th Cir. 2003) (citations omitted). Wood’s assertion of
cumulative error fails because his individual claims of his
counsel’s errors at trial and sentencing are not supportable,
and they do not entitle him to relief even when aggregated.
D
The district court correctly denied Wood’s claim that he
was denied effective assistance of counsel because one of his
appellate attorneys had an alleged conflict of interest, but did
not withdraw from representation. Wood did not raise this
particular ineffective assistance claim on direct appeal or in
his PCR proceedings, so the district court dismissed it as
unexhausted and procedurally defaulted.
IV
[20] The district court properly denied Wood’s claim that
the state trial court erred by denying Wood’s request for fund-
WOOD v. RYAN 10841
ing to obtain a neurometric brain mapping test. The district
court dismissed this claim as procedurally defaulted because
Wood did not fairly present it to the state courts. Wood con-
tends that he properly exhausted this claim by presenting it to
the Arizona Supreme Court on direct appeal and by present-
ing it in post-conviction proceedings. He also contends that
the Arizona Supreme Court necessarily considered this claim
during its independent sentencing review.
Wood did not exhaust his claim on direct review. Wood
discussed the denial of the funding request only in his descrip-
tion of the trial court’s proceedings; he did not argue that the
denial of the funding request violated his constitutional rights.
This passing reference was not sufficient to fairly alert the
Arizona Supreme Court to this claim. See Castillo v. McFad-
den, 399 F.3d 993, 1002-03 (9th Cir. 2004).
Wood also did not properly exhaust this claim in post-
conviction proceedings. Although Wood raised this claim in
the PCR petition, he did not include it in his petition for
review to the Arizona Supreme Court. Wood argues that he
incorporated his PCR petition by reference into his petition
for review before the Arizona Supreme Court. Again, as dis-
cussed in Part II.B of this opinion, this incorporation by refer-
ence was not a sufficient method of fairly presenting this
claim to the Arizona Supreme Court. See Baldwin, 541 U.S.
at 32.
The Arizona Supreme Court’s independent sentencing
review did not serve to exhaust this claim. In capital cases, the
Arizona Supreme Court independently reviews the facts that
established the aggravating and mitigating factors in order to
justify the sentence imposed. Correll v. Ryan, 539 F.3d 938,
951 (9th Cir. 2008). However, this independent review does
not necessarily exhaust all claims of constitutional error. See
Moormann v. Schriro, 426 F.3d 1044, 1057-58 (9th Cir.
2005). We agree with the district court that the Arizona
Supreme Court would not necessarily consider whether the
10842 WOOD v. RYAN
trial court’s denial of a funding request limited Wood’s ability
to present mitigating evidence.
V
[21] Finally, the district court did not abuse its discretion
by denying Wood’s request for an evidentiary hearing, evi-
dentiary development, and expansion of the record. During
PCR proceedings, Wood requested, but did not receive, an
evidentiary hearing on his ineffective assistance of counsel
claims. The district court concluded that Wood may have dili-
gently attempted to develop the factual basis for his claims,
but the district court still denied these requests under 28
U.S.C. § 2254(e)(2) after determining that Wood had not
alleged the existence of disputed facts which, if true, would
entitle him to relief.
Wood contends that he was prejudiced by counsel’s defi-
cient handling of mental health evidence at the guilt and sen-
tencing stages of trial. However, the record details counsel’s
performance, including his effort to investigate, prepare, and
present a guilt-stage defense based on Wood’s character trait
of impulsivity. Therefore, Wood is not entitled to an evidenti-
ary hearing because his ineffective assistance of counsel
claims can be “resolved by reference to the state court
record.” Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir.
1998) (citations omitted). Furthermore, Wood is not entitled
to an evidentiary hearing or additional discovery in federal
court because this ineffective assistance of counsel claim is
governed by 28 U.S.C. § 2254(d)(1), as it was adjudicated on
the merits in the PCR proceedings. Review of such claims “is
limited to the record that was before the state court that adju-
dicated the claim on the merits.” Cullen v. Pinholster, ___
U.S. ___, 131 S. Ct. 1388, 1398 (2011).
WOOD v. RYAN 10843
VI
[22] For these reasons, we therefore affirm the district
court’s denial of Wood’s habeas petition and request for an
evidentiary hearing.
AFFIRMED.