United States v. 2010-03-08 | 07-35808 | RHOADES V. PASKETT | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 PAUL EZRA RHOADES,
Petitioner-Appellant,
No. 07-35808v.
D.C. No.JEFF HENRY, of the Idaho State  CV-97-00170-S-EJLPrison;* LAWRENCE WASDEN,
Attorney General of the State of OPINION
Idaho,**
Respondents-Appellees. 
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Argued and Submitted
February 3, 2010—Seattle, Washington
Filed March 8, 2010
Before: Pamela Ann Rymer, Ronald M. Gould and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Rymer
*Jeff Henry is substituted for his predecessor, Dave Paskett, of the
Idaho State Prison. Fed. R. App. P. 43(c)(2).
**Lawrence Wasden is substituted for his predecessor, Alan Lance,
Attorney General of the State of Idaho. Fed. R. App. P. 43(c)(2).
3595

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COUNSEL
Oliver W. Loewy, Federal Defender Services of Idaho, Mos-
cow, Idaho, for the petitioner-appellant.
L. LaMont Anderson, Deputy Attorney General, Boise, Idaho,
for the respondent-appellees.
OPINION
RYMER, Circuit Judge:
Paul Ezra Rhoades appeals the district court’s denial of his
petition for writ of habeas corpus. He was convicted follow-
ing entry of a conditional Alford plea1 for the 1987 second-
degree murder and robbery of Nolan Haddon.2 He received
two indeterminate life sentences. The Idaho Supreme Court
1Alford v. North Carolina, 400 U.S. 25 (1970) (recognizing that a plea
may be accepted for which there is a factual basis even though the defen-
dant asserts his innocence).
2Rhoades was separately convicted for the shooting deaths of Stacy Bal-
dwin and Susan Michelbacher, both of whom were killed with the same
gun that killed Haddon during the same three-week period in February and
March of 1987. Rhoades was sentenced to death both for killing and for
kidnapping Baldwin, see State v. Rhoades (Baldwin), 820 P.2d 665 (Idaho
1991), and Michelbacher, see State v. Rhoades (Michelbacher), 822 P.2d
960 (Idaho 1991). Appeals from denial of federal habeas relief in both
cases are also before us; we resolve them in separate opinions. Rhoades
v. Henry (Baldwin), No. 07-99022, slip op. (9th Cir. March 8, 2010);
Rhoades v. Henry (Michelbacher), No. 07-99023, slip op. (9th Cir. March
8, 2010).
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upheld his conviction, sentence, and denial of post-conviction
relief. See State v. Rhoades (Haddon), 809 P.2d 455 (Idaho
1991). We affirm the district court’s judgment.
I
Nolan Haddon worked the night shift at Buck’s conve-
nience store in Idaho Falls, Idaho on March 16, 1987. The
next morning, Buck’s owner found Haddon lying on the floor
in a pool of blood. He had been shot five times. He was still
alive at the time, but unconscious. He died at the hospital. An
inventory of the store showed that some BIC lighters, Marl-
boro cigarettes, and $116 in cash were missing.
The police suspected Rhoades of a string of burglaries,
including one at Lavaunda’s Lingerie, and obtained a warrant
to arrest Rhoades for that burglary on March 23, 1987. They
learned that he was in Nevada when, on March 24, a Nevada
state trooper responded to an accident involving a green Ford
that was reported stolen by Rhoades’s mother, Pauline
Rhoades. The next evening, two Nevada law enforcement
officers arrested Rhoades inside a Wells Casino. They hand-
cuffed him, placed him across the trunk of the police car, and
advised him of his Miranda rights.3
Idaho officials were contacted and went to the Casino. As
the Idaho team approached, Rhoades stated “I did it” without
being questioned by anyone. Officer Victor Rodriguez, from
Idaho, again advised Rhoades of his Miranda rights. Rhoades
was asked if he understood those rights, and said something
to the effect of “I do, yes.” Detective Dennis Shaw, also from
Idaho, searched Rhoades, and found two packages of Marl-
boro cigarettes and five BIC lighters similar to those taken
from the store. Shaw also found a ten dollar bill, a one dollar
3Miranda v. Arizona, 384 U.S. 436 (1966) (requiring that the police
inform a person that he has a right to remain silent and the right to an
attorney before custodial interrogation).
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bill, and a one-hundred dollar bill. He told Rhoades he had
found three dollars, to which Rhoades responded: “It better be
$111.” Rhoades was then taken to the Wells Highway Patrol
substation for booking.
At the station, Shaw remarked that he wished he had
arrested Rhoades on an earlier occasion, and that he would
probably have saved the last victim’s life. Rhoades raised his
head and said, “I did it.”
II
The state filed an amended complaint charging Rhoades
with Haddon’s first degree murder and the robbery at Buck’s
convenience store.4 Rhoades filed a motion to suppress all
statements he made while in custody. Evidence was taken at
the preliminary hearing, and the trial court conducted an evi-
dentiary hearing on the motion to suppress. The court found
that Rhoades’s first “I did it” statement at the arrest scene was
admissible because the statement was spontaneous. It found
that Shaw’s remark at the station was the functional equiva-
lent of interrogation, but that Rhoades had been advised of his
Miranda rights and had not invoked them. The court also
found that Rhoades’s second “I did it” statement at the station
was voluntary because he appeared to understand and com-
prehend the situation.
Rhoades later filed another motion to exclude the “I did it”
statements based on the officers’ failure to tape record them,
failure to record the statements in their police reports in a
timely fashion, and failure of some of the officers present to
hear the statements. Additionally, he argued that the state-
ments were unreliable. The court declined to exclude either
statement, noting that it had the benefit of testimony from the
Michelbacher portion of the case. It found that the first state-
4The Haddon and Michelbacher murders were originally charged
together, but the court severed them for trial.
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ment was a spontaneous declaration and the second resulted
from a casual comment; failure to record the statement, it
held, went to weight rather than admissibility.
The state and Rhoades worked out a written plea agreement
by which Rhoades would enter an Alford plea to second
degree murder and robbery; he maintained his innocence but
conceded that a conviction may be had on the charge of first
degree murder; and he preserved the right to appeal denial of
his motions. Pursuant to the plea, Rhoades was sentenced to
indeterminate life for second degree murder and indetermi-
nate life for robbery, to be served concurrently. On appeal, the
Idaho Supreme Court held that the first “I did it” statement
was admissible as a spontaneous statement whether it
occurred before or after Rhoades was read his Miranda rights.
809 P.2d at 462. The Supreme Court also concluded that the
second statement at the station was admissible. Although
there was evidence that Rhoades was heavily influenced by
narcotics at the time of his arrest, the court observed that
Shaw testified he engaged Rhoades in conversation to test his
alertness and found that Rhoades had sufficient capacity to
understand what was going on around him. Id. at 463. The
supreme court determined that Rhoades had been instructed
upon and understood his rights, and there was insufficient evi-
dence that he asserted his right to remain silent. Id. at 462-63.
Rhoades filed his petition for a writ of habeas corpus in
federal district court on April 23, 1997. Therefore, it is subject
to the provisions of the Antiterrorism and Effective Death
Penalty Act (AEDPA) which became effective April 24, 1996.5
Woodford v. Visciotti, 537 U.S. 19, 21 (2002) (per curiam).
5Under AEDPA, a writ of habeas corpus may not be granted unless the
state court’s decision “(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 in the State court proceeding.” 28 U.S.C.
§ 2254(d)(1)-(2); Wiggins v. Smith, 539 U.S. 510, 520 (2003).
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After other claims were dismissed on procedural grounds, the
state moved for summary judgment on Rhoades’s claims that
the “I did it” statements were obtained in violation of
Miranda, and that the trial judge was biased. In response,
Rhoades sought to file Shaw’s deposition testimony (taken in
federal proceedings in the Baldwin case) and his police report,
or to expand the record with excerpts which would have
shown that en route from the casino to the station, Shaw and
Rhoades engaged in a conversation during which Rhoades
said “I don’t want to talk about it.” The district court granted
summary judgment for the state and denied Rhoades’s motion
to expand the record. However, it made alternative findings
that Rhoades’s statement en route was not an unequivocal
invocation of the right to stop all discussion, and that he
impliedly waived his rights by choosing to reply to Shaw’s
comment. Finally, the court found that Rhoades presented no
evidence to show the sentencing judge was biased. It denied
the petition, as well as Rhoades’s motion to alter and amend
the judgment.
Rhoades has timely appealed the issue on which the district
court granted a certificate of appealability (COA) — his claim
that the “I did it” statements were obtained in violation of his
Miranda rights, together with the denial of his motion to
expand the record — and argues three others in his opening
brief for which he did not receive a COA.6
6Circuit Rule 22-1(e) requires petitioners to brief certified and uncerti-
fied issues separately, under headings that distinguish them. Rhoades has
not done this. We may decline on this account to address his uncertified
issues. Advisory Note, Circuit Rule 22-1. As it happens in this case, there
is only one certified issue which means that the uncertified issues stand
out rather clearly. This time we will not dismiss them. Accordingly, we
will consider whether the issues raised are fairly debatable among reason-
able jurists such that a COA should issue. See Slack v. McDaniel, 529 U.S.
473, 484 (2000).
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III
Rhoades maintains that the district court erred in denying
for lack of diligence leave to supplement the record with facts
showing that the police continued custodial interrogation after
he invoked his right to silence en route from the casino to the
station. He claims that this was through no fault of his own,
as he first learned of a statement that he made to Shaw when
Shaw’s deposition was taken in 1996 in the federal habeas
proceedings in the Baldwin case. During the deposition Shaw
produced a report he had written sometime after the arrest, in
which he relates:
On the way to the police station I continued to talk
with [Rhoades]. He was very uncomfortable as he
was so large and the car did not give him much
room. I told him I was disappointed in him and he
had lied to me about the burglary. I had tried to
believe him and give him a chance but he had lied
and conned me. I said we need to talk about it now
so that you can get it off your chest. He said, “Aw
bullshit, I don’t want to talk about it.[ ] Get these
fuckin cuffs off me.”
At his deposition, Shaw explained that he was talking about
the Lavaunda’s Lingerie burglary in the car because he
wanted to start chronologically and that’s where his warrant
was. He assumed that when Rhoades said he didn’t want to
talk about it, it was because he was cramped. Once inside the
station, Shaw removed the handcuffs and proceeded to talk.
Rhoades’s counsel were also deposed during the federal
proceeding. Stephen Hart was the primary attorney on discov-
ery and suppression issues. At one point Hart said that he
couldn’t recall reading Shaw’s police report, but he also could
not say it wasn’t provided to him; at another point, he said “I
don’t have a specific recollection as to when I saw this
report.” John Radin, another of Rhoades’s attorneys, testified
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that he had seen Shaw’s report pretrial. Both Hart and Radin
stated in subsequently filed affidavits that the failure to offer
the “I don’t want to talk about it” statement was most likely
the result of voluminous reports and contrary representations
by Shaw and Rodriguez.
The district court denied Rhoades’s motion to expand the
record because it found a lack of diligence in developing the
factual basis in state court. It noted that Rhoades was pro-
vided a hearing on his motion to suppress before the Michelb-
acher trial during which counsel examined and cross-
examined the police officers, and that he pursued post-
conviction relief in both the Michelbacher and Baldwin mat-
ters. Also, the court concluded that the state courts reasonably
found that Rhoades was aware of the factual circumstances of
his own arrest. Further, the district court found that Rhoades
failed to show that counsel lacked access to the Shaw infor-
mation before the Michelbacher trial. Although it found that
Rhoades did not pursue opportunities to present additional
facts in support of his claim in state court, the court went on
to find that even if the record were expanded, the “I don’t
want to talk about it” statement was an ambiguous or equivo-
cal reference to Rhoades’s right to silence with respect to
questioning about the unrelated Lavaunda’s Lingerie bur-
glary. Thus, Rhoades’s “I don’t want to talk about it” state-
ment did not pertain to the murders, so even if he asserted his
right to silence with respect to interrogation about the bur-
glary of Lavaunda’s Lingerie, it would not affect the validity
of his waiver in relation to the “I did it” statement in response
to Shaw’s comment about the murders.
Rhoades maintains that his counsel did not have the infor-
mation all along, as the district court thought, rather, the pros-
ecution concealed it. He points out that at the preliminary
hearing, the prosecutor elicited testimony from Shaw about
the “I did it” statement at the scene of the arrest but not at the
station. He notes that Shaw forgot to record the second state-
ment in his report, from which Rhoades infers that Shaw
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viewed the interrogation in the car and at the station as one
continuous event and thus also forgot to include the “I don’t
want to talk about it” statement which could negate the force
of the second “I did it” statement. Further, Rhoades empha-
sizes that his counsel made clear to the prosecutor at a discov-
ery conference held on April 23, 1987, that the defense
wanted each statement made by their client.7 In sum, Rhoades
submits, it is hard to imagine a lawyer who would miss the
essential nature of either statement, therefore his counsel must
not have seen the report. He believes the district court mis-
construed counsels’ deposition testimony as indicating they
had seen it, given that Hart (who was the primary attorney on
discovery and suppression issues) testified that if he had had
Shaw’s report, he would have used it.
[1] AEDPA constrains when the district court may hold an
evidentiary hearing or expand the record pursuant to Rule 7
of the Rules Governing § 2254 cases if a state prisoner seek-
ing federal habeas relief has failed to develop the factual
record that supports a claim in state court. Holland v. Jackson,
542 U.S. 649, 652-53 (2004) (per curiam); Cooper-Smith v.
Palmateer, 397 F.3d 1236, 1241 (9th Cir. 2005). Section
7The conference was recorded and reflects the following exchange:
[Defense counsel]: [In addition to Officer Burgess’ recorded
interrogation of Rhoades] [a]re there any other written or oral
statements made by Mr. Rhoades?
[Prosecuting Attorney]: To my knowledge there are not, other
than those that may be recounted in Detective Shaw’s report of
statements that Rhoades made to him in the course of their con-
tact in Nevada. but those are recounted in the police report that
you have received already.
Like I say, as far as a transcript of recorded statement, that that
[sic] I have referred to is all that I am aware of. There may be one
or two words that are referred to by Detective Shaw in his report,
and you’ll have to glean those from the report. But as far as a
separate statement, there is none.
Discovery Hrg. Tr. at 5 (April 23, 1987).
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2254(e)(2) only allows new evidence to be considered in the
federal proceeding if, among other requirements, the factual
predicate “could not have been previously discovered through
the exercise of due diligence.”8 “[A] failure to develop the
factual basis of a claim is not established unless there is lack
of diligence, or some greater fault, attributable to the prisoner
or the prisoner’s counsel.” Williams v. Taylor, 529 U.S. 420,
432 (2000). As we have held, a petitioner who “knew of the
existence of [ ] information” at the time of his state court pro-
ceedings, but did not present it until federal habeas proceed-
ings, “failed to develop the factual basis for his claim
diligently.” Cooper-Smith, 397 F.3d at 1241.
It is unclear whether our review of a district court decision
not to expand the record is for abuse of discretion or de novo.
Id. at 1241 n.12. Either way, resolution of this issue follows
from Cooper-Smith. There the petitioner sought to buttress his
claim of ineffective assistance of counsel by an affidavit of
his doctor regarding what the doctor would have testified to
at trial had he been called. Id. at 1241. Cooper-Smith knew of
the information at the time of state court proceedings, yet
failed to present it. As a result, we held that he failed to
8Section 2254(e)(2) provides in full:
If the applicant has failed to develop the factual basis of a claim
in State court proceedings, the court shall not hold an evidentiary
hearing on the claim unless the applicant shows that —
(A) the claim relies on —
(i) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable; or
(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for con-
stitutional error, no reasonable factfinder would have found
the applicant guilty of the underlying offense.
28 U.S.C. § 2254(e)(2).
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develop the factual basis for his claim diligently, and there-
fore could not meet the requirements of § 2254(e)(2). Id.
Accordingly, we concluded that the district court properly
declined to expand the record under Rule 7.
[2] We reach the same conclusion here, for the same rea-
son. The deposition testimony and affidavits of both counsel
support the district court’s finding that Rhoades failed to
show this counsel lacked the information contained in the
Shaw report. In addition, Rhoades was a participant in the
conversation and made the statement himself. As the state
courts and the district court found, he was aware of what was
going on around him when he was arrested.9 And the
exchange between his counsel and the prosecutor at the pre-
trial discovery conference, upon which Rhoades relies to
show that he asked for his statements, in fact shows that the
prosecutor thought the Shaw report had been turned over. The
prosecutor confirmed there were no statements “other than
those that may be recounted in Detective Shaw’s report of
statements that Rhoades made to him in the course of their
contact in Nevada. But those are recounted in the police
report that you have received already.” Either counsel had the
report, as the prosecutor believed, or they were alerted to it by
this discussion such that they could have followed up if
indeed they didn’t have it.
[3] For these reasons, we agree with the district court that
Rhoades did not diligently develop the factual predicate for
this claim in state court. Consequently, he failed to satisfy the
9Rhoades’s argument in reply that he had no memory of invoking his
right to silence is without basis in the record. In any event, the Idaho
Supreme Court acknowledged evidence showing that Rhoades was under
the influence of drugs, but found that he understood what was going on
around him at the time of his arrest. Rhoades (Haddon), 809 P.2d at 463.
As we explain in our opinion in the Baldwin case, this finding is supported
by evidence that Rhoades reacted alertly during his exchange with Shaw
at the arrest scene. See Rhoades (Baldwin), slip op. at 3530-31.
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core requirement of § 2254(e)(2). As a result, the district court
did not err in failing to expand the record.
IV
Rhoades next challenges the district court’s alternative rul-
ing on the merits that his “I don’t want to talk about it” state-
ment did invoke his Miranda rights with respect to the “I did
it” statement at the station. He argues that the ruling should
not have been made without an evidentiary hearing, and in
any event, was wrong. However, we do not address this issue
given our conclusion that the district court did not err in
declining to expand the record. In light of the district court’s
principal and dispositive ruling, its alternative ruling is just
alternative. There is no need for us to reach it.
V
[4] Rhoades’s remaining issues are uncertified for appeal.
An appeal may not be taken unless the district judge or we
issue a certificate of appealability. 28 U.S.C. § 2253(c)(1). A
COA may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” Id.
§ 2253(c)(2). This requires Rhoades to establish that “reason-
able jurists could debate whether . . . the petition should have
been resolved in a different manner or that the issues pres-
ented were ‘adequate to deserve encouragement to proceed
further.’ ” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quot-
ing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). We
are to resolve doubts about the propriety of a COA in the peti-
tioner’s favor. Jennings v. Woodford, 290 F.3d 1006, 1010
(9th Cir. 2002).
A
Sentencing in the Haddon case occurred three weeks after
sentencing in the Michelbacher case. The same judge presided
over both matters. In the course of sentencing Rhoades for the
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Michelbacher murder, the judge found that Rhoades was
“morally vacant and totally devoid of conscience,” had a pro-
pensity to commit murder, constituted a continuing threat to
society, and had committed an offense that was “extremely
wicked and vile, shockingly evil, and designed to inflict a
high degree of physical and mental pain with utter indiffer-
ence to and with the apparent enjoyment of the suffering.”
Rhoades claims that the judge was biased in the Haddon case
for having made these findings in the Michelbacher case. The
judge himself stated that the findings he made in the Michelb-
acher case were limited to those facts relating to the Michelb-
acher case, and would have nothing to do with the Haddon
portion of the case. In denying Rhoades’s motion to disqual-
ify, the judge also noted that he had no bias or prejudice
toward Rhoades that was either personal or in a judicial
capacity. The Idaho Supreme Court concluded that no due
process violation occurred, 809 P.2d at 465, and so did the
district court.
[5] Due process requires that trials be conducted free of
actual bias as well as the appearance of bias. In re Murchison,
349 U.S. 133, 136 (1955). There is a strong presumption that
a judge is not biased or prejudiced, Bracy v. Gramley, 520
U.S. 899, 909 (1997), and the Supreme Court made clear in
Liteky v. United States that “[i]t has long been regarded as
normal or proper for a judge to sit . . . in successive trials
involving the same defendant.” 510 U.S. 540, 551 (1994). In
that connection, the Court observed that a “judge who pre-
sides at a trial may, upon completion of the evidence, be
exceedingly ill disposed towards the defendant, who has been
shown to be a thoroughly reprehensible person.” Id. at 550-
51. “But the judge is not thereby recusable for bias or preju-
dice, since his knowledge and the opinion it produced were
properly and necessarily acquired in the course of the pro-
ceedings . . . .” Id. at 551. Thus, judicial rulings alone are
almost never sufficient to support a request for recusal. Id. at
555; see also Poland v. Stewart, 117 F.3d 1094, 1103 (9th
Cir. 1997).
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[6] The propriety of the Idaho Supreme Court’s determina-
tion in light of Liteky is not reasonably debatable. The record
supports the trial judge’s own assessment. And as the district
court concluded, Rhoades points to no evidence that the judge
was unable to preside over his case in a fair and impartial
manner.
[7] Accordingly, we decline to issue a certificate of
appealability.
B
[8] AEDPA has a one-year statute of limitations, see 28
U.S.C. § 2244(d), unless claims are “tied to a common core
of operative facts” in the original pleading and thus relate
back under Fed. R. Civ. P. 15(c) to the initial filing, Mayle v.
Felix, 545 U.S. 644, 664 (2005), or the claims are based upon
newly discovered evidence, in which case the one-year period
begins to run from “the date on which the factual predicate of
the claim or claims presented could have been discovered
through the exercise of due diligence,” 28 U.S.C.
§ 2244(d)(1)(D). As direct review in this case was completed
in 1991, Rhoades had a grace period of one year from April
24, 1996, AEDPA’s effective date, within which to submit an
application for habeas relief.
[9] Rhoades’s original filing was timely, but in 2005 he
sought leave to amend his petition to raise three claims that
he contended were newly discovered. These new claims arose
out of alleged misconduct of the prosecutors in the Michelb-
acher case based on testing done by the FBI laboratory before
the Michelbacher trial. Rhoades retained an expert in 2005
who interpreted the FBI results to exclude him as a contribu-
tor of the semen removed from the victim in that case. The
district court found that none of the claims relate back, which
is plainly correct. Rhoades’s original claims involved police
questioning at the time of his arrest, jailhouse informant testi-
mony, and judicial bias.
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[10] The court denied leave as untimely, because Rhoades
admittedly had the FBI report since the late 1980s and failed
to exercise due diligence to develop the factual predicate of
the claim. As the district court correctly concluded, Rhoades
could have run the FBI report by another expert, and tried to
uncover the factual predicate for these claims, long before he
did. In the face of this record, Rhoades’s suggestion that the
state’s misconduct camouflaged the factual basis of his claim
is clearly unavailing. Banks v. Dretke, 540 U.S. 668 (2004),
upon which he relies, is inapposite as there, the prosecution
never disclosed that one of its key witnesses was an infor-
mant, whereas here, the prosecution did not conceal the FBI
report. See id. at 675-77.
[11] We see nothing debatable about the district court’s
ruling that warrants certification. The claim unquestionably
fails.
C
[12] Finally, Rhoades asserts that the district court erred in
holding that three of his grounds for relief were barred by the
Teague retroactivity doctrine. In Teague v. Lane, 489 U.S.
288 (1989), the Court held that a federal court may not apply
a new constitutional rule on collateral review of a state court
judgment, subject to exceptions that are inapplicable here. Id.
at 310. A “new rule” is one that “breaks new ground or
imposes a new obligation” on the state, or was not “dictated
by precedent existing at the time the defendant’s conviction
became final.” Id. at 301. A result is “dictated” when “no
other interpretation was reasonable.” Lambrix v. Singletary,
520 U.S. 518, 538 (1997).
[13] In the district court, Rhoades moved to exclude his “I
did it” statements and the testimony of jailhouse informants,
and to recuse the trial judge, on the footing that evidence in
his capital proceedings must meet a heightened reliability
threshhold before being admitted. The district court ruled that
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applying a “heightened standard of reliability” to these guilt-
phase issues would be Teague-barred. It did so because such
a rule was not dictated by precedent at the time Rhoades’s
convictions became final in 1991.
[14] Rhoades argues to the contrary by citing to the long
line of Supreme Court cases that apply enhanced standards of
reliability to capital sentencing procedures. See, e.g., Cald-
well v. Mississippi, 472 U.S. 320, 340 (1985) (noting the
Eighth Amendment’s heightened “need for reliability in the
determination that death is the appropriate punishment in a
specific case”); California v. Ramos, 463 U.S. 992, 998-99
(1983) (recognizing “the qualitative difference of death from
all other punishments requires a correspondingly greater
degree of scrutiny of the capital sentencing determination”);
Herrera v. Collins, 506 U.S. 390, 405 (1993) (noting “the
Eighth Amendment requires increased reliability of the pro-
cess by which capital punishment may be imposed”). How-
ever, Rhoades was urging the district court to apply a
heightened standard to guilt phase issues. Rhoades offers rea-
sons why this should be so, but no precedent that dictates it.
Accordingly, to adopt his proposed rule would inarguably be
to apply a new rule. Reasonable jurists would not debate that
this would offend Teague. Therefore, we decline to issue a
COA.
AFFIRMED.
3613 RHOADES v. HENRY (Haddon)

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