Pete Rogovich v. Charles L. Ryan ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETE CARL ROGOVICH,  No. 08-99015
Petitioner-Appellant, D.C. No.
v.  2:00-CV-01896-
CHARLES L. RYAN, ROS
Respondent-Appellee.
 OPINION
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, Chief District Judge, Presiding
Argued and Submitted
April 18, 2012—San Francisco, California
Filed September 18, 2012
Before: Mary M. Schroeder, Diarmuid F. O’Scannlain, and
Susan P. Graber, Circuit Judges.
Opinion by Judge Schroeder
11453
ROGOVICH v. RYAN 11455
COUNSEL
Sarah Stone, Arizona Federal Public Defender, Phoenix, Ari-
zona, for the petitioner-appellant.
Julie Done, Assistant Attorney General, Phoenix, Arizona, for
the respondent-appellee.
OPINION
SCHROEDER, Circuit Judge:
Pete Carl Rogovich was convicted by an Arizona jury and
sentenced to death for a 1992 killing spree in a Phoenix trailer
11456 ROGOVICH v. RYAN
park. His only defense at trial was insanity. He appeals the
district court’s denial of habeas relief on three principal
claims, each of which we have certified for appeal. First, he
claims that the state trial court should not have permitted his
counsel to present an insanity defense without first establish-
ing on the record Rogovich’s consent to the defense. Second,
he claims that his counsel on direct appeal was ineffective in
failing to challenge the use of Arizona’s aggravating sentenc-
ing factor for a homicide involving multiple victims. Third, he
claims that his counsel on direct appeal was ineffective in fail-
ing to challenge the prosecutor’s closing arguments. Review-
ing de novo, Robinson v. Schriro, 595 F.3d 1086, 1099 (9th
Cir. 2010), we affirm the district court’s denial of habeas
relief.
The Arizona Supreme Court denied Rogovich’s first claim
on direct appeal. See State v. Rogovich, 932 P.2d 794 (Ariz.
1997). After the state courts denied post-conviction relief
(“PCR”) on his other claims, Rogovich filed this petition for
habeas corpus in federal district court. Under the Antiterro-
rism and Effective Death Penalty Act (“AEDPA”) of 1996, a
federal habeas petitioner whose claim has been adjudicated on
the merits in state court must establish that the state court’s
adjudication was unreasonable. For such claims, AEDPA per-
mits relief only when the adjudication:
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of,
clearly established Federal law, as determined
by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented at the State court pro-
ceeding.
28 U.S.C. § 2254(d).
ROGOVICH v. RYAN 11457
Rogovich cannot meet this heavy burden under AEDPA.
On his first claim, there is no clearly established federal law
requiring the defendant to consent on the record to an insanity
defense. On his second claim, the state PCR court reasonably
concluded Rogovich’s appellate counsel was not ineffective
for failing to challenge the multiple-victim aggravating factor.
Rogovich identifies nothing that counsel could have argued to
challenge the factor, and the state supreme court indepen-
dently reviewed the factor’s applicability. Rogovich thus
could not establish prejudice. On his third claim, the state
PCR court reasonably concluded that appellate counsel was
not ineffective for failing to challenge the prosecutor’s closing
statements. There was no prosecutorial misconduct that could
have been challenged successfully under federal or state law.
Rogovich contends that the district court improperly denied
evidentiary hearings and expansion of the record on the three
claims that we have certified for appeal. As the state courts
adjudicated each of those three claims on the merits, the dis-
trict court properly denied the request. See Cullen v. Pinhol-
ster, 131 S. Ct. 1388, 1398 (2011); Schad v. Ryan, 671 F.3d
708, 722 (9th Cir. 2011) (per curiam), petition for cert. filed,
___ U.S.L.W. ___ (U.S. July 27, 2012) (No. 12-5534).
Rogovich seeks a certificate of appealability on an uncerti-
fied claim, alleging that the state violated his due process
rights by failing to collect biological evidence at the time of
his arrest, when police captured him with beer in his vehicle.
He asserts that the biological evidence might have established
he was intoxicated at that time, which was hours after the kill-
ings. We deny the certificate of appealability because
Rogovich has not made “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2).
FACTUAL BACKGROUND
The facts of Rogovich’s crimes are undisputed. The Ari-
zona Supreme Court described them well in its opinion:
11458 ROGOVICH v. RYAN
On Sunday, March 15, 1992, at 8:30 a.m., a main-
tenance man saw Rogovich park his car in the lot of
his central Phoenix apartment complex. On the way
to his apartment, Rogovich spoke to the maintenance
man, telling him he was upset with his girlfriend and
was going to get even with her. Rogovich then went
to his second-floor apartment.
At about 8:45 a.m., a customer entered a Super
Stop Market located near Rogovich’s apartment and
found the body of the clerk, Tekleberhan Manna, a
24-year-old Ethiopian immigrant. Manna sustained a
fatal gunshot wound to his right eye, fired from
within two feet, causing instantaneous death. No
money or merchandise had been taken from the
store.
Around 1:00 p.m. the same day, Rogovich left his
apartment with a gun in his hand and began ran-
domly firing. At that time, Tony Madrid and Pamela
Rodgers were leaving the apartment complex by car.
One of Rogovich’s shots hit a rear tire. Madrid
thought the car was backfiring, and when he and
Rodgers momentarily got out of the car to inspect,
Rogovich fired at them but missed. Rogovich then
ran to the south side of the complex and jumped the
fence separating the apartment complex from the
neighboring trailer park.
In the trailer park, Rogovich went on what can
only be described as a homicidal rampage, leaving
three victims in his wake. In the laundry room, 62-
year-old Phyllis Mancuso was shot once through her
right cheek and neck and died within minutes. In her
driveway, 48-year-old Rebecca Carreon was shot
once in the back and died from loss of blood within
a few minutes. Finally, in her trailer 83-year-old
ROGOVICH v. RYAN 11459
Marie Pendergast was shot twice in the abdomen and
also died from blood loss.
Rogovich was last seen running into an open field
adjacent to the trailer park. Some time later, he
appeared at a restaurant parking lot where disc
jockey Kelly Urich was doing promotional work for
Y-95, a Phoenix radio station. Rogovich took the
distinctive Y-95 van from Urich at gunpoint and
drove off.
Rogovich was next seen at a convenience store in
Goodyear. Inside the store, he grabbed a couple of
12-packs of beer from the cooler and approached the
counter. At the counter, he put down his gun and
demanded in a quiet voice, “Give me some money.”
The cashier handed him about $45. Rogovich took
the money, casually walked out to the Y-95 van, and
drove off.
At about 5:00 p.m. Goodyear police, responding
to a call concerning the convenience store robbery,
spotted the Y-95 van and pursued. Although
Rogovich led them on a lengthy chase at speeds
ranging from 50 to over 100 miles per hour, police
were finally able to stop him at a roadblock.
In interviews with the police, Rogovich admitted
to committing all of the various offenses, including
the murder of Tekleberhan Manna. He stated, “I did
it. I know it was wrong. I know I’ll burn in hell.”
When asked if he was sorry, Rogovich replied, “Of
course, I’m sorry. It was wrong. I know it, but I just
snapped. I was so angry. I just couldn’t stop. I was
full of anger.” Rogovich told a detective that the
death of his stepfather in 1986 and the recent
breakup with his girlfriend really bothered him.
11460 ROGOVICH v. RYAN
On March 26, 1992, the State charged Rogovich
with four counts of first-degree murder, two counts
of aggravated assault, two counts of armed robbery,
and one count of unlawful flight from a law enforce-
ment vehicle. The State also filed a notice of intent
to seek the death penalty.
Rogovich, 932 P.2d at 796-97 (heading omitted).
Rogovich was tried before a jury on all the charges in 1994.
He presented a defense of insanity. His court-appointed coun-
sel made the decision to present that defense a full year before
trial, after a number of evaluations of Rogovich’s competency
to stand trial. When the state first raised the issue of
Rogovich’s mental health and competency, Rogovich’s coun-
sel sought a competency evaluation under Arizona Rule of
Criminal Procedure 11. The court initially denied a full com-
petency evaluation, but defense counsel then obtained an
independent psychiatric evaluation from Dr. Paul Bindelglas,
who concluded Rogovich suffered from psychosis and para-
noia, and was incompetent to stand trial. With Rogovich pres-
ent at the competency hearing, his counsel told the court that
he had been “unable to communicate” with Rogovich, and
had not yet decided whether to present an insanity defense.
The court ordered a full evaluation of Rogovich’s competency
to stand trial, stating that if counsel decided to present an
insanity defense the court would also permit the doctors to
evaluate Rogovich for his mental state at the time of the
crimes.
The competency reports included the evaluations of two
doctors, Bindelglas and Michael Bayless. On the basis of the
reports the trial court ruled, in January 1993, that Rogovich
was competent to stand trial.
In March 1993, at a motions hearing, Rogovich was present
when his counsel stated that there was a possibility of an
insanity defense. Rogovich’s counsel confirmed, in April
ROGOVICH v. RYAN 11461
1993, that he might present an insanity defense. Rogovich
was also present when his counsel discussed the insanity
defense at two subsequent pretrial hearings. Rogovich never,
during any of these appearances, voiced any misgivings or
objections to the intended defense. The court then appointed
experts who examined Rogovich for his mental state at the
time of the crimes.
Trial proceedings began with voir dire conducted on May
10-11, 1994. Rogovich waived his presence at voir dire
through his counsel, who told the court that the waiver “prob-
ably will make the process more effective.” Counsel informed
prospective jurors that Rogovich had admitted to the crimes
and that the defense would be insanity.
Trial began on May 12, 1994, and lasted seven days.
Rogovich was present throughout. During opening statements,
defense counsel did not deny or disguise Rogovich’s commis-
sion of the killings and other crimes. Defense counsel con-
firmed that Rogovich committed “four shootings, that he did
the two aggravated assaults, that he did the two robberies, and
that he fled from the police.” The state’s case-in-chief pre-
sented eyewitness testimony from all of the crime scenes:
Rogovich’s apartment complex, the trailer park, the radio sta-
tion’s van, and the convenience stores. Witnesses testified
they saw Rogovich with a gun at the crime scenes. Police wit-
nesses also testified concerning Rogovich’s arrest and subse-
quent admission while in custody that he had committed all
the crimes. The trial court denied the defense motion for judg-
ment of acquittal.
The burden then shifted to Rogovich to establish insanity
by clear and convincing evidence. See Ariz. Rev. Stat. § 13-
502(A) (1983). Rogovich presented testimony from two men-
tal health experts: Dr. Bindelglas, who had examined him
both for competence and later for his mental state, and Dr.
Marc Walter, a clinical neuropsychologist who had also eval-
uated Rogovich’s mental state at the time the crimes were
11462 ROGOVICH v. RYAN
committed. On the basis of his meetings with Rogovich, Bin-
delglas testified the defendant suffered from paranoid schizo-
phrenia, with symptoms including hallucinations, delusions,
and paranoia. In the later meetings with Bindelglas, Rogovich
still had no recollection of the crimes, and tried to rationalize
them as a function of drug abuse, even suggesting that a ciga-
rette he had smoked the night before the killings might have
been laced with phencyclidine (PCP). Walter testified that
Rogovich’s results on clinical tests, such as the Minnesota
Multiphasic Personality Inventory, were consistent with a
diagnosis of paranoid schizophrenia. Walter also expressed
the opinion that Rogovich did not know right from wrong at
the time of the offenses.
To rebut Rogovich’s insanity defense, the state presented
testimony from two other mental health professionals who
had evaluated Rogovich. Dr. Alexander Don, a psychiatrist,
testified that Rogovich had a prior history of substance abuse
and hallucinations. Although he diagnosed Rogovich as hav-
ing a personality disorder with “schizoid, paranoid, and void
like characteristics,” Don testified that he concluded
Rogovich was malingering because he had been relatively
high functioning before the murders. The state’s other expert
was Dr. Bayless, the psychologist who had prepared one of
the two reports for Rogovich’s Rule 11 competency evalua-
tion. Bayless concluded that Rogovich suffered from no
organic psychosis and that his behavior at the time of the
crimes could have resulted from PCP intoxication.
The prosecutor’s closing argument with respect to the
insanity defense is the basis for one of the claims of ineffec-
tive assistance of appellate counsel. The argument empha-
sized the difference between a verdict of “guilty,” which the
state sought, and a verdict of “Not guilty by reason of insani-
ty,” which the defense sought. The prosecutor said: “not
guilty by reason of insanity is still not guilty. That’s what it
means, not guilty.” He later told the jury: “They are asking
ROGOVICH v. RYAN 11463
you to find this man not guilty by reason of insanity. That’s
not guilty for taking away four of our citizens.”
Defense counsel objected on the ground that the argument
was misleading and sought a curative instruction that a “not
guilty by reason of insanity” verdict would not set Rogovich
free. The court overruled the objection and denied the curative
instruction, concluding that the prosecutor had accurately
commented on the defense’s burden of proof.
The jury deliberated for five hours before returning a guilty
verdict for each of the four murders and for the other charges.
The penalty phase of Rogovich’s trial was delayed for
nearly a year because of renewed concerns about Rogovich’s
competence. Defense counsel sought a new Rule 11 evalua-
tion, contending that Rogovich’s mental state had worsened
and that he was unable to assist counsel in preparing for the
penalty phase. The court ordered another evaluation. After
several doctors had evaluated Rogovich’s mental condition,
the court concluded that he was competent to proceed to the
penalty phase.
The court held a bench trial on the penalty phase, pursuant
to Arizona law at the time. See Ariz. Rev. Stat. § 13-703(B)
(West 1995). The prosecution sought the death penalty. Ari-
zona law required the prosecution to provide notice of the
aggravating factors it intended to prove and the evidence sup-
porting those factors. Ariz. R. Crim. P. 15.1(g) (1994). The
state sought to prove three statutory aggravators. See Ariz.
Rev. Stat. § 13-703(F)(1), (2), (8) (West 1995).
One of those aggravators, the (F)(8) factor, is the basis for
one of Rogovich’s federal habeas claims. The predicate for
that aggravator is multiple related killings. The state had to
prove Rogovich had “been convicted of one or more other
homicides . . . committed during” the offense for which the
state was seeking the death penalty. § 13-703(F)(8). The Ari-
11464 ROGOVICH v. RYAN
zona Supreme Court has explained that, for the (F)(8) factor
to apply, there must be “temporal, spatial, and motivational
relationships” among the predicate homicides. State v. Lavers,
814 P.2d 333, 350 (Ariz. 1991) (internal quotation marks
omitted). The prosecutor said that the state would establish
these relationships among the three predicate trailer-park kill-
ings by showing that Rogovich committed those killings
together.
As an additional aggravator for the three trailer-park kill-
ings, the state sought to prove that Rogovich had “been con-
victed of another offense in the United States for which under
Arizona law a sentence of life imprisonment or death was
imposable.” § 13-703(F)(1). The prosecution said that it
would establish the (F)(1) aggravator by showing that, by the
time of sentencing, Rogovich had been convicted of the con-
venience store killing. As a final aggravator, the state sought
to prove that for all four killings that Rogovich had been “pre-
viously convicted of a felony in the United States involving
the use or threat of violence on another person,” § 13-
703(F)(2), by showing Rogovich’s convictions for armed rob-
bery and aggravated assault were felonies involving the use or
threat of violence.
The prosecution then explained how the facts proved to the
jury during the guilt phase established each aggravator. It did
not put on new evidence independent of the underlying facts
proved at trial. The trial court took judicial notice of the facts
proved at trial and found the state had established all three
aggravating factors for the trailer-park homicides.
The defense then presented its mitigation evidence, all of
which was admitted. The defense stressed the role that mental
illness played in Rogovich’s inability at the time of the mur-
ders to conform his conduct to the law. Two mental health
experts, Dr. Charles Shaw and Dr. Michael Buck, testified
about his long history of both substance abuse and mental ill-
ness. Shaw, a clinical addiction specialist, described
ROGOVICH v. RYAN 11465
Rogovich’s dependency on alcohol and stimulant drugs, as
well as his history of hallucinations and delusions. Shaw
expressed the opinion that drug abuse “would aggravate the
pre-existing mental illness symptoms.”
Rogovich’s mitigation case also emphasized his troubled
childhood. Buck, a clinical psychologist, described
Rogovich’s “dysfunctional family,” in which “from a devel-
opmental standpoint he didn’t have many breaks.” Buck had
met with Rogovich and had reviewed his medical and family
histories. He opined that Rogovich displayed signs of clinical
depression as a young child, resulting from physical and emo-
tional conflict between his father and mother. Rogovich’s
mother remarried, but fought often with Rogovich’s stepfa-
ther. The stepfather used and manufactured methamphet-
amine. Buck testified that the mother physically abused
Rogovich. In this environment, Rogovich began drinking
around age 13, and began using other drugs in high school.
Buck explained that when Rogovich began hearing voices in
early adolescence, he learned “that if he would drink beer he
could stop the voices.” Rogovich’s substance abuse and men-
tal health issues exacerbated each other. Buck concluded that
Rogovich’s early mental health issues went unnoticed and
untreated, and “[h]e fell through the cracks.”
The defense also presented testimony from a private inves-
tigator who examined Rogovich’s home life during childhood.
Mary Durand, a mitigation specialist, stated that Rogovich’s
father fought often with the mother and was emotionally
unavailable to his son. Although Rogovich could remember
little from early childhood, he had witnessed physical abuse
and had experienced it. Durand also described Rogovich’s
stepfather as a physically violent drug abuser who was even-
tually killed in an apparent drug-related murder. As a result
of the stepfather’s abuse, Rogovich became increasingly “hy-
pervigilant” and paranoid, developing trust issues and becom-
ing “more withdrawn, more lonely, more depressed,” and
more dependent on drugs. Durand also testified about positive
11466 ROGOVICH v. RYAN
aspects of Rogovich’s adult life. She discussed his attempts to
get treatment for his drug and alcohol addictions and
described his ability to hold down a job successfully as an
automobile painter.
Rogovich’s mother addressed the court briefly. She too
described Rogovich’s painful childhood. She said she had
tried to raise him as best she could, but she acknowledged she
had “picked some awful husbands.” Both of her two ex-
husbands had abused Rogovich mentally and physically. She
stated that she had attempted to obtain mental health treat-
ment for Rogovich when he was a young child, but that the
doctors just told her to stop worrying.
The court found that Rogovich had established six mitigat-
ing factors, including the statutory mitigator for a substantial
impairment in his inability to conform his conduct to law. See
§ 13-703(G)(1). The other, non-statutory mitigators included,
in the court’s terms: “Dysfunctional Home Life, Difficult
Early Years”; “Lack of Serious Prior Record”; “Good
Employment History”; “Good Behavior While Incarcerated”;
and “Admission of Guilt/Feeling of Remorse.”
The court imposed the death sentence for the three trailer-
park homicides, determining that the aggravating circum-
stances outweighed the mitigating circumstances as to those
killings. It imposed a life sentence for the convenience store
killing, because it found that the state had not proved the
(F)(1) and (F)(8) factors. The trial court imposed consecutive
ten-year sentences for the two aggravated assault convictions,
plus consecutive fifteen-year sentences for the two armed rob-
bery convictions. Rogovich’s federal habeas petition chal-
lenges only the death sentences for the trailer-park homicides.
Rogovich timely appealed to the Arizona Supreme Court.
Because his trial counsel had been appointed for the trial only,
the court appointed new counsel for the appeal, James Kem-
per of the Maricopa County Public Defender. Kemper argued
ROGOVICH v. RYAN 11467
that Rogovich was denied due process because he should have
been required to consent to the insanity defense. Appellate
counsel also raised challenges related to the expert testimony
and jury instructions at the guilt phase, but did not challenge
Rogovich’s death sentences.
The Arizona Supreme Court affirmed Rogovich’s convic-
tion and sentences. See Rogovich, 932 P.2d at 802. In addition
to rejecting his state law evidentiary and instructional chal-
lenges, id. at 797-99, the court considered and rejected the
insanity defense claim that Rogovich now raises in his federal
habeas petition. The Arizona Supreme Court concluded that
counsel’s decision to present the insanity defense did not
waive any of Rogovich’s constitutional rights and, therefore,
did not require “affirmative, recorded agreement” to present-
ing the defense. Id. at 799. It relied on its recent decision in
State v. Hurles, 914 P.2d 1291 (Ariz. 1996), where it had
reached a similar conclusion, and for which Kemper had also
been appellate counsel. The court also noted that Rogovich
had many opportunities to raise concerns about the choice of
the insanity defense, and reasoned that Rogovich did not
object even though he was “present at all critical moments.”
Rogovich, 932 P.2d at 799.
Although Kemper did not challenge Rogovich’s death sen-
tences on direct appeal, the Arizona Supreme Court con-
ducted what it termed an “independent review of the
aggravating and mitigating factors,” as was then its practice
in capital cases. Id. at 799-802; see Ariz. Rev. Stat. § 13-
701.01(A) (West 1994). In the portion of its analysis that is
relevant to the claims here, the court affirmed the trial court’s
finding that the state had proved the (F)(8) aggravating factor
for the trailer-park killings. The state supreme court con-
cluded that Rogovich’s trailer-park killings shared the
required temporal, spatial, and motivational relationships
because they were all part of his “continuing course of crimi-
nal conduct.” Rogovich, 932 P.2d at 801 (internal quotation
marks omitted). It affirmed the death sentences.
11468 ROGOVICH v. RYAN
Rogovich subsequently filed a timely notice for state post-
conviction relief and received court-appointed PCR counsel.
Rogovich’s petition presented a number of arguments, two of
which are relevant to his federal habeas petition. The PCR
petition argued, inter alia, that appellate counsel rendered con-
stitutionally ineffective assistance by failing to challenge the
trial court’s finding that the state proved the (F)(8) multiple-
homicides aggravating factor. The PCR petition also claimed
appellate counsel rendered ineffective assistance by failing to
challenge the prosecutor’s closing statements concerning the
“not guilty by reason of insanity” verdict.
The trial court considered and rejected on the merits
Rogovich’s PCR claims of ineffective assistance. Counsel
filed a petition for discretionary review with the Arizona
Supreme Court, which denied the petition.
Rogovich filed his federal habeas petition on October 5,
2000, represented by the federal public defender. Proceedings
were stayed until after the United States Supreme Court deter-
mined the nonretroactivity of its decision in Ring v. Arizona,
536 U.S. 584 (2002), requiring a jury, not a judge, to impose
the death penalty. See Schriro v. Summerlin, 542 U.S. 348,
353 (2004).
The district court denied habeas relief in 2008 on all of
Rogovich’s claims. With respect to the claims before us, the
district court first held that the Arizona Supreme Court’s rul-
ing that Rogovich did not have to consent expressly to an
insanity defense was neither contrary to nor an unreasonable
application of clearly established federal law. The district
court also ruled that the state PCR court did not unreasonably
apply Strickland v. Washington, 466 U.S. 668 (1984), in
rejecting the claim of ineffective assistance for not challeng-
ing the (F)(8) factor. It reasoned that counsel was not defi-
cient and that there was no prejudice because, although
counsel failed to challenge the factor, the Arizona Supreme
Court “independently reviewed the record and concluded that
ROGOVICH v. RYAN 11469
the (F)(8) aggravating circumstance had been established.”
On the claim of ineffective assistance for failing to challenge
the prosecutor’s closing statements, the district court ruled
that the prosecutor’s closing remarks properly addressed
Rogovich’s burden of proof and did not suggest that an insan-
ity verdict would result in Rogovich’s release.
Rogovich timely appealed. We granted a certificate of
appealability for the two ineffective assistance claims, as well
as for the claim that express consent was required for the
insanity defense.
DISCUSSION
Whether Due Process Required Express Consent to the
Insanity Defense
Rogovich challenges on appeal the Arizona Supreme
Court’s decision that his express consent to the insanity
defense was not required, contending the decision was con-
trary to, or an unreasonable application of, clearly established
federal law. See § 2254(d)(1). He argues that a defendant
must consent to the insanity defense because, like a guilty
plea, it results in a waiver of important constitutional rights,
such as the presumption of innocence and the state’s burden
to prove that the defendant committed the crimes. He con-
tends that the invocation of the insanity defense in his case
was tantamount to a guilty plea because his defense counsel
conceded that he had committed the crimes.
[1] The Arizona Supreme Court rejected Rogovich’s argu-
ment that the insanity defense is like a guilty plea, because it
had just considered and rejected the same argument. The Ari-
zona Supreme Court held in Hurles that an insanity defense
neither “ ‘vitiates the presumption of innocence [n]or negates
the state’s burden of proof.’ ” Rogovich, 932 P.2d at 799
(quoting Hurles, 914 P.2d at 1295). The court pointed out that
Rogovich could not contend that he did not know the defense
11470 ROGOVICH v. RYAN
would be presented, because he sat through pretrial hearings
addressing the insanity defense, as well as trial, and never
indicated any objection. The Arizona Supreme Court thus
concluded there was no need for “affirmative, recorded agree-
ment” to the defense. Id.
[2] At the time the Arizona Supreme Court rendered its
decision in February 1997, there was no clearly established
federal law requiring the defendant’s express consent to the
insanity defense. There is none today. To support his position,
given the restrictions of AEDPA, Rogovich must rely on
Supreme Court decisions in other contexts—decisions requir-
ing courts to inquire before the defendant waives significant
constitutional protections like the right to trial and the right to
counsel. See Godinez v. Moran, 509 U.S. 389, 396, 400
(1993) (requiring knowing and voluntary consent to waive
trial and right to counsel); Indiana v. Edwards, 554 U.S. 164,
174-78 (2008) (waiver of counsel for conducting trial pro se).
Rogovich did not waive those rights, however. He had a trial
and was represented by counsel.
He also points to cases involving the defendant’s compe-
tence to stand trial, which required some on the record inquiry
into competence. See Dusky v. United States, 362 U.S. 402,
402 (1960) (per curiam). Dusky holds a that defendant is com-
petent to stand trial if he has a rational and factual “under-
standing of the proceedings” and can communicate with
counsel “with a reasonable degree of rational understanding.”
Id. Rogovich had a full and fair evaluation of his competence
to stand trial under Arizona’s Rule 11, and he does not chal-
lenge the trial court’s ruling. Rogovich also relies on
Edwards. Edwards recognized that a defendant who is com-
petent for trial may nonetheless be incompetent to represent
himself at trial, see 554 U.S. at 172, 174, but Rogovich did
not seek to represent himself. Moreover, Edwards was not
even on the books at the time of the state court’s decision.
Only Supreme Court law established at the time of the state
court’s decision can be a basis for habeas relief under
ROGOVICH v. RYAN 11471
AEDPA. See Greene v. Fisher, 132 S. Ct. 38, 44 (2011).
Accordingly, neither Dusky nor Edwards supports Rogovich’s
claim.
Rogovich has a secondary challenge relating to the insanity
defense. This is a claim that the Arizona Supreme Court got
the facts wrong and that its decision was therefore “based on
an unreasonable determination of the facts” within the mean-
ing of 28 U.S.C. § 2254(d)(2). The state supreme court’s
opinion contained an ambiguous sentence. While stressing
that Rogovich knew that his counsel would rely on an insanity
defense, the court stated that Rogovich did not ever object to
the defense even though he was present at “all critical
moments.” Rogovich, 932 P.2d at 799. The use of the phrase
“critical moments” may have been unfortunate, because the
Supreme Court has used the word “critical” in a different con-
text: it has said a defendant has a right to be present at all crit-
ical stages of trial, a category that includes voir dire. Gomez
v. United States, 490 U.S. 858, 873 (1989). Rogovich was not
present at voir dire because his counsel, understandably,
waived his presence during jury selection. He now contends
that the Arizona Supreme Court unreasonably found that he
was present.
Rogovich’s argument is premised on a misunderstanding.
The state court made no factual finding that Rogovich was
present at voir dire. Rather, it explained that Rogovich had
failed to object at any time before or at trial when counsel
addressed the insanity defense. The state court described
those occasions as “critical” because they were instances
when Rogovich was present, heard his counsel referring to the
defense, and could have raised any concerns he may have had.
The court did not find Rogovich was present during all “criti-
cal stages” of trial within the meaning of Gomez. The state
court’s decision thus did not rest on an unreasonable factual
determination.
[3] Because the state court’s decision was neither contrary
to, nor an unreasonable application of, clearly established fed-
11472 ROGOVICH v. RYAN
eral law, or based on an unreasonable application of the facts,
the district court properly denied relief on Rogovich’s claim
that he was denied due process with respect to the insanity
defense.
The Ineffective Assistance of Counsel Claims
Rogovich claims that appellate counsel rendered prejudi-
cially deficient assistance in two ways. He contends, first, that
appellate counsel rendered ineffective assistance by failing to
challenge the prosecutor’s closing statements telling the jury
the verdict of “not guilty by reason of insanity” was a verdict
of “not guilty.” He also contends appellate counsel errone-
ously failed to challenge the (F)(8) aggravating factor for
multiple homicides.
The state PCR court denied each ineffective-assistance
claim on the merits, and the Arizona Supreme Court denied
review. We thus consider the state PCR court’s decision as
the last reasoned opinion. See Ylst v. Nunnemaker, 501 U.S.
797, 805 (1991). That court denied relief because Rogovich
failed to establish either prong of Strickland.
The Supreme Court has said that our review of a state
court’s adjudication of a Strickland claim is “doubly” deferen-
tial. Harrington v. Richter, 131 S. Ct. 770, 788 (2011). We
ask “whether there is any reasonable argument” that counsel
was effective. Id. We need not look at both deficiency and
prejudice if the habeas petitioner cannot establish one or the
other. LaGrand v. Stewart, 133 F.3d 1253, 1270 (9th Cir.
1998).
Ineffectiveness Concerning Closing Arguments
Rogovich contends that constitutionally effective appellate
counsel would have challenged comments the prosecutor
made during closing arguments regarding the insanity
defense. He contends that the prosecutor misled the jury by
ROGOVICH v. RYAN 11473
implying Rogovich would be released if found not guilty by
reason of insanity. The prosecutor stated:
They have to prove [insanity] by clear and convinc-
ing evidence. Not guilty by reason of insanity is still
not guilty. That’s what it means, not guilty . . . .
They are asking you to find this man not guilty by
reason of insanity. That’s not guilty for taking away
four of our citizens.
(emphasis added).
The trial court overruled defense counsel’s objection and
denied a curative instruction, reasoning that, in context, the
statements referred to the defense’s burden of proof on the
insanity defense and were not improper. Rogovich claims that
his appellate counsel was ineffective in not appealing that rul-
ing.
Rogovich presented this Strickland claim to the state PCR
court, which rejected it, concluding that Rogovich established
neither prejudice nor deficient performance of appellate coun-
sel. The federal district court held that the state PCR court’s
decision was not unreasonable.
No other conclusion would have been tenable in light of
Arizona law at the time. In State v. Cornell, 878 P.2d 1352
(Ariz. 1994), the prosecutor asked a defense expert witness:
“even though you assumed that he shot [a victim], shot her
father and did whatever else he did by way of aiming the gun
around, he should walk out of the courtroom today a free
man?” Id. at 1364. The defendant objected on direct appeal
that the prosecutor’s argument warranted reversal because it
improperly stated the defendant would be set free if the jury
found him not guilty by reason of insanity. The state supreme
court rejected that contention, reasoning the prosecutor’s
hypothetical question was “essentially true” because the
11474 ROGOVICH v. RYAN
defendant could have proven “he was no longer mentally ill
or dangerous and would have been entitled to release within
a short period of time.” Id. at 1365. The court refused to
reverse the conviction.
[4] Appellate counsel in this case did not perform defi-
ciently by declining to challenge the prosecutor’s statements.
The state court had already rejected in Cornell a much
stronger claim in which the prosecutor in fact implied that the
defendant would be released. In light of Cornell, Rogovich’s
appellate counsel reasonably could have concluded that the
argument was without merit. Counsel is not required to raise
an “untenable issue” on appeal. Turner v. Calderon, 281 F.3d
851, 872 (9th Cir. 2002); see Miller v. Keeney, 882 F.2d 1428,
1434 (9th Cir. 1989).
[5] Rogovich cannot show prejudice for the same reason.
See Miller, 882 F.2d at 1434. As the court had already
rejected a stronger claim, there is no reasonable probability
that, had appellate counsel raised the argument, the court
would have granted relief.
Ineffectiveness Concerning Sentencing
Rogovich also contends that constitutionally effective
appellate counsel would have challenged the death sentence
by arguing that the state trial court improperly used the (F)(8)
aggravator. Rogovich contended to the PCR court, and in fed-
eral court, that appellate counsel should have argued that the
state had not proved a common motivational relationship
among the three trailer park-killings, as required under (F)(8).
The state PCR court correctly concluded that Rogovich
could not establish prejudice. There was no probability that,
had appellate counsel challenged the (F)(8) factor, the Ari-
zona Supreme Court would have reversed Rogovich’s death
sentence.
ROGOVICH v. RYAN 11475
[6] State law required the Arizona Supreme Court to “inde-
pendently review the trial court’s findings of aggravation and
mitigation and the propriety of the death sentence.” Ariz. Rev.
Stat. § 13-703.01(A) (West 1994). In its independent review,
the state supreme court considered whether the state had
proven the (F)(8) aggravator. It concluded the state had estab-
lished that Rogovich’s three trailer-park killings shared com-
mon temporal, spatial, and motivational relationships. All
three killings were part of what the court termed Rogovich’s
“continuous course of conduct”: a shooting spree with a com-
mon motivational force connecting three otherwise unrelated
killings that occurred close together in time and space. See
State v. Dann, 79 P.3d 58, 60 (Ariz. 2003) (reaffirming that
the state can establish the (F)(8) aggravator where the killings
occurred during a “short, uninterrupted span of time”).
[7] Accordingly, there could have been no prejudice from
counsel’s failure to raise the issue because the state supreme
court considered on the merits whether the prosecution had
satisfied the standards for the (F)(8) aggravator, and con-
cluded on its own that a motivational relationship existed.
Rogovich provides no basis for concluding that had appellate
counsel challenged the (F)(8) aggravator himself, he could
have convinced the state court to reach the opposite conclu-
sion. We have previously held this independent review has
prevented a habeas petitioner from establishing prejudice
under Strickland for counsel’s alleged failure to challenge the
death penalty. See Gerlaugh v. Stewart, 129 F.3d 1027, 1045
(9th Cir. 1997).
[8] In sum, the state PCR court reasonably concluded
Rogovich’s appellate counsel did not render ineffective assis-
tance. That court’s adjudication of Rogovich’s ineffective
assistance claims was thus neither contrary to nor an unrea-
sonable application of Strickland.
11476 ROGOVICH v. RYAN
CONCLUSION
The district court’s judgment in favor of the Respondent
and denying Rogovich’s federal habeas petition is
AFFIRMED.