Runningeagle

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SEAN BERNARD RUNNINGEAGLE, 

Petitioner-Appellant, No. 07-99026 v.  D.C. No.

CV-98-01903-PGR

CHARLES L. RYAN, Arizona Department of Corrections, OPINION Respondent-Appellee.  Appeal from the United States District Court for the District of Arizona Paul G. Rosenblatt, Senior District Judge, Presiding

Argued and Submitted February 10, 2011—Pasadena, California

Filed July 18, 2012

Before: Harry Pregerson, Kim McLane Wardlaw, and Carlos T. Bea, Circuit Judges.

Opinion by Judge Wardlaw; Partial Concurrence and Partial Dissent by Judge Pregerson COUNSEL

Jon M. Sands, Federal Public Defender, and Jennifer Y. Gar- cia and Ashley J. McDonald, Assistant Federal Public Defenders, Phoenix, Arizona, for petitioner-appellant Sean Bernard Runningeagle.

Terry Goddard, Attorney General; Kent Cattani, Chief Coun- sel, Capital Litigation Section; and Jon G. Anderson, Assis- tant Attorney General, Phoenix, Arizona, for respondents- appellees Charles L. Ryan et al. 8238 RUNNINGEAGLE v. RYAN

OPINION

WARDLAW, Circuit Judge:

Sean…

Opinion by Judge WARDLAW; Partial Concurrence and Partial Dissent by Judge PREGERSON.

OPINION

Sean Bernard Runningeagle and his cousin Corey Tilden were convicted of murdering Herbert and Jacqueline Williams after they pursued the Williamses into their home in the early morning of December 6, 1987. The state trial court imposed a sentence of death upon Runningeagle, but not upon Tilden. Runningeagle’s direct and collateral appeals were rejected by the state courts. Runningeagle now appeals the district court’s denial of his federal petition for a writ of habeas corpus. We affirm the district court’s decision to deny the petition.

I.

We take the facts as recited by the Arizona Supreme Court in its 1993 opinion, State v. Runningeagle, 176 Ariz. 59 , 859 P.2d 169 (1993), affirming Runningeagle’s conviction and sentence and denying Runningeagle’s petition for post-conviction relief:

Runningeagle, 859 P.2d at 171-72 .

After a five-week trial, Runningeagle and Tilden were convicted on July 27, 1988. Runningeagle was found guilty of two counts of first degree murder, two counts of theft, and one count each of first degree burglary, second degree burglary, and third degree…

concurring in part and dissenting in part:

In the early morning hours of December 6,1987, in Phoenix, Arizona, two teenagers committed a horrible and senseless crime. Petitioner Sean Bernard Runningeagle and his codefendant, Corey Tilden, burglarized the home of Herbert and Jacqueline Williams. Herbert and Jacqueline Williams were present at the time of the burglary, and, in the course of the burglary, one of these two teenagers stabbed and killed the Williamses.

Runningeagle and Tilden were tried together in Maricopa County Superior Court. Both were convicted of two counts of first degree murder. At the sentencing hearing, the trial judge sentenced Tilden to life imprisonment but sentenced Runningeagle to death. 1 The judge’s decision to spare Tilden’s life was based primarily on the judge’s view that it was Runningeagle who stabbed the victims. What the trial judge did not have before her, and indeed no court has ever had before it, are the statements Tilden made about his role in the murders to his cellmate, Manuel Melendez. Prosecutors and police spoke with Melendez five times in the weeks leading up to Runningeagle’s trial, but *783 never provided Melendez’s potentially…