Towery

Robert Towery was convicted of first-degree murder, armed robbery, first-degree burglary, kidnapping, theft and attempted theft. He was sentenced to death. Towery’s habeas petition raises *1240 numerous issues, but the district court certified only one for appeal. We have jurisdiction under 28 U.S.C. § 2253 (a) and affirm the district court’s denial of habeas corpus on the certified claim. As discussed in Part II below, we grant a certificate of appealability (COA) as to two other claims, but hold that they also do not entitle Towery to habeas relief.

I. Certified Issue: Prosecutorial Misconduct

The issue that the district court certified concerns whether the prosecutor’s use of witness testimony for inconsistent purposes constitutes misconduct that warrants reversal. In the murder trial, the witness testified he overheard Towery refer to a struggle with a victim who was an “old man.” In a previous trial in a different case, however, the same prosecutor had elicited this testimony to prove that Towery committed an unrelated robbery, not the murder at issue here. The Arizona Supreme Court concluded that, even assuming the prosecutor changed his mind in good faith as to…