govinfo:USCOURTS-azd-2_21-cv-01529-7

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WO 
 
 
 
 
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF ARIZONA 
 
 
Fabio Evelio Gomez, 
 
Petitioner, 
 
v. 
 
Ryan Thornell, et al., 
 
Respondents. 
No. CV-21-01529-PHX-MTL 
 
ORDER 
 
DEATH PENALTY CASE 
 
 
The Court previously granted Respondents’ motion to bar Petitioner Fabio Evelio 
Gomez from contacting his trial jurors, absent leave of Court based on a showing of good 
cause. (Doc. 20 at 10.) Gomez now moves for leave , which Respondents oppose. (Docs. 
42 and 53.) The Court will deny this motion. 
I. BACKGROUND 
 Gomez is a black, Latino, man originally from the Dominican Republic . State v. 
Gomez (Gomez I), 123 P.3d 1131, 1133 (Ariz. 2005). Gomez moved to the United States 
and into an apartment in Chandler, Arizona, where he lived with his white girlfriend and 
baby. Id.; Doc. 42 at 2; R.T. 2/28/01 at 91 . They lived across “the landing” from Joan 
Morane, a white woman. Gomez I, 123 P.3d at 1133–34; Doc. 42 at 2; R.T. 2/28/01 at 91. 
In early December 1999, Morane was found dead in a nearby dumpster. Id. Gomez was 
charged with kidnapping, sexually assaulting, and murdering Morane. 
 In February 2001, a panel of prospective jurors was voir dired. The trial court 
excused prospective jurors who identified themselves, or family members, as victim s of 

 
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crime and who stated they were unable to impartially serve as a juror in Gomez’s case. 
(R.T. 2/28/01, vol. 1, at 63 –64, 77.) The court asked the remaining panel members the 
following questions: 
1. “Have any of you or any of your close personal friends or family 
members ever been discriminated against for any reason such as age, 
gender, race, religion, or something of that nature or felt they had been 
discriminated against for those reasons?” 
2. “The defendant in this case is a Spanish-speaking black man from the 
Dominican Republic. Will the race or heritage of the defen[dant] 
influence any of you in any way with regard to this case?” 
3. “The evidence may show that the defendant was living with a white 
woman and had a child with that person. Will this influence you in 
any way or keep you from being fair and impartial with regard to this 
case?” 
4. “Do any of you have any feelings one way or another about the 
defendant’s race or heritage or his relationship with the woman 
described that would keep you from being fair and impartial in this 
case?” 
5. “Is there anyone who would not be offended by a racial slur or a racial 
joke?” 
6. “Have any of you or any of your close personal friends or family 
members ever had a bad experience with someone who was black that 
you attribute to the person being black?” 
7. “Do any of you believe that black people are treated differently by the 
criminal justice system than those of other races?” 
(Id. at 90–91.) 
The only question to which some prospective jurors responded, yes, was question 
7. (Id. at 91 –94.) When further questioned by the court, they each denied that Gom ez’s 
race would influence them in deciding the case. ( Id. at 92 –94.) Defense counsel did not 
seek to ask any follow-up questions. 
The court then asked the panel members two more questions about race and 
ethnicity: 
1. “Do any of you feel that people of a particular race or ethnic 

 
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background, in this case black, are more likely or not to commit 
violent crimes?” (Id. at 94.) 
2. “Have any of you or any of your close personal friends or family 
members ever belonged to any organization or contributed to any 
group that advocates a pro white or separation of races position?” (Id.) 
No one responded affirmatively to these questions. (Id.) 
The court then asked the jury panel members about: 
• the “civic clubs or professional organizations or societies” in which 
they engaged or served as an officer; 
• the “magazines or periodicals” they “regularly subscribe[d] to or 
read”; 
• their hobbies and recreational activities; and 
• the radio stations to which they listened. 
(Id. at 97.) 
In response, one panel member, who later became the foreperson, responded that he 
listened to Rush Limbaugh’s radio show. ( Id. at 133, 135.) The court asked him whether 
there was “any reason” he thought he would be “unable to be fair and impartial ” in the 
case. (Id. at 135.) He answered, “no.” (Id.) Defense counsel did not seek to individually 
question the panel members or to ask follow up questions. The court granted defense 
counsel’s motion to strike two panel members, and the prosecutor’s motion to strike a panel 
member, for cause; a 12-person jury with three alternates w as empaneled. (Id. at 146–49; 
R.O.A. 86 at 2 –3.) The available record does not reflect the race or ethnicity of the 
empaneled jury, or of the excused panel members. But in post-trial filings, Gomez referred 
to being tried by an all-white jury. (See, e.g., R.O.A. 468 at 5.) Defense counsel did not 
challenge the racial composition of the jury or assert a Batson challenge as to those 
excused. 
At trial, the jury found Gomez guilty as charged. State v. Gomez (Gomez II), 293 
P.3d 495, 497 –98 (Ariz. 2012). Before the trial court could sentence Gomez, the United 
States Supreme Court held Arizona’s capital sentencing statute s unconstitutional where 

 
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Arizona law required that the court, rather than the jury, find any aggravating circumstance, 
making a defendant eligible for a death sentence. See Ring v. Arizona, 536 U.S. 584, 609 
(2002). 
 In 2003, following revision of Arizona’s capital sentencing statute s, Gomez was 
appointed new counsel and a new jury was empaneled for the purpose of determining 
whether the death penalty should be imposed. (R.O.A. 239 at 2; R.O.A. 297 at 1.) That jury 
sentenced Gomez to death for the murder. Gomez II, 293 P.3d at 498. On direct appeal, the 
Arizona Supreme Court reversed the death sentence because the jury may have seen Gomez 
in shackles.1 Gomez I, 123 P.3d at 1139–42. 
 In 2010, Gomez was again appointed new counsel . (See R.O.A. 750 at 1.) On 
September 2, 2010, the prosecutor asked the court whether counsel would be allowed to 
question panel members. (R.T. 9/2/10 at 7.) The court responded they would be allowed to 
question the panel members , who were going to report back in small groups, following 
initial questioning by the court. (Id.) Before the initial screening by the court, the prosecutor 
requested the trial court to ask panel members about “the race issue.” (R.T. 9/7/10 at 4.) 
 Before it began questioning panel members, the court informed the panel that 
Gomez was from the Dominican Republic. (Id. at 54–55.) It told the panel members that if 
they served as jurors, they could not base their verdict on Gomez’s race or national origin 
and asked them whether Gomez’s race or national origin would prevent any of them from 
being fair and impartial. (Id. at 55–56.) No panel member responded that it would. (Id. at 
56.) The court then had the panel members sworn , and they completed a juror 
questionnaire. (Id. at 60–61.) 
Over three days, the court questioned panel members, who had been divided into 
three groups . The court, as well as the parties, asked individual panel members about 
crimes, including ones involving home invasions or death, that had affected them, their 
families, or their friends. (R.T. 9/8/10 at 54 –55, 72–73; R.T. 9/9/10 at 31 –32, 43–44, 64–
 
1 The Arizona Supreme Court also reversed Gomez’s kidnapping sentence and remanded 
the case for resentencing. Gomez I , 123 P.3d at 1142. Gomez was resentenced for 
kidnapping, which the Arizona Supreme Court affirmed. Gomez II, 293 P.3d at 503. 

 
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65, 67, 74 –75, 77; R.T. 9/13/10 at 38 –39.) Of the prospective jurors who disclosed that 
such crimes had affected them, their family, or their friends, no one indicated that such 
crimes would prevent them from being fair and impartial , including after questioning by 
defense counsel and the prosecutor . (R.T. 9/8/10 at 55 ; R.T. 9/9/10 at 32, 43 –44, 69–74; 
R.T. 9/13/10 at 39 –40.) Thereafter, a resentencing jury was empaneled, at least one of 
whom was black. (R.T. 9/20/10 at 8, 16.) 
 Following the close of evidence, the court instructed the jury concerning the use of 
social media: 
During your deliberations you must not communicate with or 
provide any information to anyone by any means about this 
case. You may not use any electronic devices or media, 
including telephone, cell phones, smart phones, iPhones, 
Blackberry or computer, the internet, any internet service or 
any text or instant messaging service, any internet chat room, 
blog website, such as Facebook, MySpace, Linkedin, YouTube 
or Twitter to communicate with anyone any information about 
this case or to conduct any research about the case until I ’ve 
accepted your verdict. 
(R.T. 9/30/10, vol. 1, at 69.) The resentencing jury found the “especially cruel” aggravating 
circumstance later that day and sentenced Gomez to death. (R.T. 9/30/10, vol. 2, at 3.) See 
Gomez II, 293 P.3d at 498. On direct appeal, the Arizona Supreme Court affirmed. Gomez 
II, 293 P.3d at 503. 
In his initial petition for postconviction relief, Gomez sought discovery of 
mitigation evidence of his abusive childhood and brain damage. (R.O.A. 941 at 4 –7, 45–
46.) In his second amended petition, he did not seek discovery. ( See R.O.A. 966.) “[T]o 
avoid preclusion” under Cullen v. Pinholster, 563 U.S. 170, 181 (2011), Gomez cited his 
conviction by an all -white jury and his belief , without argument, that the “prosecution 
team” had been prejudiced against him based on his race. (R.O.A. 966 at 10.) The 
postconviction-review court summarily dismissed Gomez’s claims and denied relief, and 
the Arizona Supreme Court denied review . ( R.O.A.s 1003 and 1006 ; P.F.R. 30; A SC 
Minute Letter.) Thereafter, Gomez commenced this case. (Doc. 1.) 

 
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II. DISCOVERY IN HABEAS CORPUS CASES 
 Habeas petitioners are not entitled to discovery as a matter of course. Bracy v. 
Gramley, 520 U.S. 899, 904 (1997). But “[w]here specific allegations before the court 
show reason to believe that the petitioner may, if the facts are fully developed, be able to 
demonstrate that he is . . . entitled to relief, it is the duty of the court to provide the necessary 
facilities and procedures for an adequate inquiry.” Harris v. Nelson, 394 U.S. 286, 300 
(1969). Habeas Rule 6(a) codifies this duty and is meant to be “consistent” 
with Harris. Bracy, 520 U.S. at 909; Advisory Committee’s Note on Habeas Corpus Rule 
6, 28 U.S.C., p. 479. The rule reads: “A judge may, for good cause, authorize a party to 
conduct discovery under the Federal Rules of Civil Procedure and may limit the extent of 
discovery.” Rules Governing § 2254 Cases, Rule 6(a), foll. 28 U.S.C. § 2254. 
III. CLAIMS FOR WHICH GOMEZ SEEKS TO CONTACT JURORS 
In its February 2022 Order, the Court prohibited Gomez from contacting jurors 
without first obtaining leave of Court. Leave is available on a showing of good cause “that 
extraneous prejudicial information or outside influence was improperly brought to the 
jury’s attention, or . . . evidence of racial stereotypes or animus affecting a verdict or 
sentence.” (Doc. 20 at 10.) 
Gomez seeks leave to contact those summoned as prospective jurors at the guilt- 
and resentencing -phases of his criminal proceedings to support the following habeas 
claims: 
1. the State relied on “discriminatory” racial or national -origin criteria 
to strike prospective guilt - and resentencing -phase jurors, which 
infected those phases with racial or national-origin prejudice (Doc. 51 
at 19–38, Claims 2–4); 
2. group voir dire, absent individual questioning, violated due process 
and the right to a fair and impartial jury (id. at 81–83, Claim 8); and 
3. trial counsel rendered ineffective assistance by failing: to ask 
prospective guilt-phase jurors about possible racial or national-origin 
biases; to challenge the all -white composition of his guilt phase jury 
as not drawn from a fair -cross section of the community; and to 
question prospective resentencing -phase jurors about racial and 

 
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national-origin biases (id. at 38–52, 98–112, Claims 5 and 13). 
 A. Racial and National Origin Criteria to Strike Prospective Jurors 
 An accused has a Fourteenth Amendment, equal protection right against 
“[p]urposeful racial discrimination” in selecting his jury. Batson v. Kentucky, 476 U.S. 79, 
86 (1986). “The Constitution forbids striking even a single prospective j uror for a 
discriminatory purpose.” Flowers v. Mississippi, 139 S. Ct. 2228, 2244 (2019). In Batson, 
the United States Supreme Court required a three -step test to assess claims of such 
discrimination. 476 U.S. 79, (1986). First, the accused has the burden to make “a prima 
facie case ‘by showing that the totality of the relevant facts gives rise to an inference of 
discriminatory purpose.’” Johnson v. California , 545 U.S. 162, 168 (2005) (quoting 
Batson, 476 U.S. at 93–94). If he meets that burden, the burden shifts to the State “to offer 
“permissible race-neutral justifications for the strikes.” Id. (quoting Batson, 476 U.S. at 
94). Last, “[i]f a race -neutral explanation is tendered, the trial court must then 
decide . . . whether the opponent of the strike has proved purposeful racial discrimination.” 
Purkett v. Elem, 514 U.S. 765, 767 (1995) (per curiam). 
 The accused also has a Fourteenth Amendment, due process right to a fair trial. 
United States v. Agurs, 427 U.S. 97, 107 (1976); see also In re Murchison, 349 U.S. 133, 
136 (1955) (noting this “basic requirement of due process”). As part of that right, the 
accused has a right to “an impartial jury drawn from sources reflecting a fair cross section 
of the community.” Berghuis v. Smith, 559 U.S. 314, 319 (2010) (citing U.S. Const. amend. 
VI and XIV); see also McDonough Power Equip., Inc. v. Greenwood , 464 U.S. 548, 55 
(1984) (noting an “impartial trier of fact” is a “touchstone of a fair trial”). 
 B. Fair and Impartial Jury 
 “[V]oir dire can be . . . essential” to guard one’s right to an impartial jury. Wagner 
v. Shauers, 135 S. Ct. 521, 528 –29 (2014) (citing cases). To that end, a capital defendant 
“accused of an interracial crime is entitled to have prospective jurors informed” of the 
victim’s race and asked about “racial bias.” Turner v. Murray, 476 U.S. 28, 36–37 (1986). 
Such bias can violate an accused’s right to a fair trial. See Peña-Rodriguez v. Colorado, — 

 
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U.S. —, 137 S. Ct. 855, 871 (2017); see also United States v. Gonzalez , 214 F.3d 1109, 
1111 & 1114 (9th Cir. 2000) (citing Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir. 1998) 
(noting that “[t]he bias or prejudice of even a single juror” will cause an unfair trial). 
Three cognizable forms of juror bias have been recognized: 
1. “actual bias, which stems from a pre -set disposition not to decide an 
issue impartially,” United States v. Olsen , 704 F.3d 1172, 1189 (9th 
Cir. 2013) (internal quotation marks omitted); 
2. “implied (or presumptive) bias, which may exist in exceptional 
circumstances, where, for example, a prospective juror has a 
relationship to the crime itself or to someone involved in a trial, or has 
repeatedly lied about a material fact to get on the jury,” id.; and 
3. “so-called McDonough-style bias, which turns on the truthfulness of 
a juror’s responses on voir dire,” where an honest “‘response would 
have provided a valid basis for a challenge for cause,’” Fields v. 
Brown, 503 F.3d 755, 766 –67 (9th Cir. 2007) (quoting McDonough 
Power Equip., Inc., 464 U.S. at 554–56). 
 In terms of actual bias, “[t]o hold that the mere existence of any preconceived notion 
as to the guilt or innocence of an accused, without more, is sufficient to rebut the 
presumption of a prospective juror’s impartiality wo uld be to establish an impossible 
standard.” Irvin v. Dowd, 366 U.S. 717, 722–23 (1961). Rather, “if the juror can lay aside 
his impression or opinion and render a verdict based on the evidence presented in court,” 
that will suffice. Id.; United States v. Olsen, 704 F.3d 1172, 1191 (9th Cir. 2013) (quoting 
Irvin, 366 U.S. at 722 –23); see also See Peña -Rodriguez, — U.S. —, 137 S. Ct. at 871 
(finding admissible, testimony from jurors that another juror had expressed stereotypical, 
anti-Hispanic views about th e accused and his alibi witness); Gonzalez, 214 F.3d at 1111 
(holding that “the failure to excuse [a juror] for cause under either an express or implied 
bias theory requires reversal”); United States v. Ganias, 755 F.3d 125, 132 (2d Cir. 2014) 
(citing case s) (“A juror . . . who posts comments about the trial on Facebook, may, in 
certain circumstances, threaten a defendant’s Sixth Amendment right to an impartial jury,” 
finding that a juror who posted on Facebook, “Jury duty 2morrow. I may get 2 hang 
someone . . . can’t wait,” and “friended” another juror on Facebook did not violate that 

 
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right because the trial court found the juror’s testimony credible that he “deliberated 
impartially and in good faith.”), on rehearing en banc on other ground in 824 F.3d 199 
(9th Cir. 2016). “The presence of a bias ed juror cannot be harmless; the error requires a 
new trial without a showing of actual prejudice.” Dyer v. Calderon, 151 F.3d 970, 973 n.2 
(9th Cir. 1998). 
 C. Fair Cross Section of the Community 
 The accused must show the following to make a prima facia case that his jury was 
not selected from a fair cross section of the community: “(1) that the group alleged to be 
excluded is a ‘distinctive’ group in the community; (2) that the representation of this group 
in venires from which juries are selected is not fair and reasonable in relation to the number 
of such persons in the community; and (3) that this underrepresentation is due to systematic 
exclusion of the group in the jury-selection process.” Duren v. Missouri, 439 U.S. 357, 364 
(1979). “The first showing is, in most cases, easily made; the second and third are more 
likely to generate controversy.” Berghuis, 559 U.S. at 319. 
 D. Ineffective Assistance During Jury Selection 
 Under the Sixth Amendment, a defendant has the right to the effective assistance of 
trial counsel. McMann v. Richardson , 397 U.S. 759, 771 n.14 (1970) (citations omitted). 
To prove counsel’s ineffectiveness, petitioner must show that counsel performed 
deficiently, and that this deficiency prejudiced him. Strickland v. Washington, 466 U.S. 
668, 687–88, 691–92 (1984). Counsel performs deficiently when his representation falls 
“below an objective standard of reasonableness.” Id. at 687–88. To show unreasonableness, 
a petitioner “must overcome the presumption that, under the circumstances, the challenged 
action ‘might be considered sound trial strategy.’” Id. at 689 (quoting Michel v. Louisiana, 
350 U.S. 91, 101 (1955)). To establish prejudice, a petitioner must show “a reasonable 
probability that, but for counsel’s” deficient performance, the trial’s outcome would have 
differed. Id. at 694. A reasonable probability must “undermine[s] confidence in the 
outcome.” Id. 

 
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 Gomez contends that defense counsel rendered ineffect ive assistance by failing to 
ask prospective guilt -phase jurors about possible racial or national -origin biases; to 
challenge the all-white composition of his guilt phase jury as not drawn from a fair -cross 
section of the community; and to question prospec tive resentencing -phase jurors about 
racial and national -origin biases. (Doc. 51 at 38–52, 98–112.) Absent evidence of actual 
juror bias, a petitioner cannot establish prejudice for purposes of an ineffective assistance 
of counsel claim. See Denham v. Deeds, 954 F.2d 1501, 1505 (9th Cir. 1992) (declining to 
find ineffective assistance based on counsel’s failure to object to juror who had met victim 
where there was no evidence juror could not be impartial); Quang Minh Tran v. Cate, No. 
SA CV 12-1439-SJO (PLA), 2013 WL 3755968, at *8 (C.D. Cal. July 13, 2013) (holding 
that petitioner did not show prejudice by not revealing any “underlying juror misconduct,” 
finding “post-trial comment about punishment means that the juror failed to deliberate h is 
case impartially[] is too speculative and tenuous to warrant relief”). 
IV. Gomez Has Not Shown Good Cause to Contact Prospective or Empaneled 
Jurors 
 Gomez claims that the State evoked racial stereotypes and animus at the guilt phase. 
(Doc. 42 at 2–4.) First, he notes that his case “undeniabl[y]” had “racial dynamics” because 
he is a black, Latino man, who had a baby with his white girlfriend, and the victim was a 
white woman. (Id. at 2.) Gomez argues that to rebut his defense that he had consensual sex 
with the victim, the State offered evidence that the victim had opposed interracial dating 
and sex and that Gomez “grossed” her out. ( Id. 2–3, citing R.T. 3/5/01 at 144 –45; R.T. 
3/6/01 at 72–73; R.T. 3/21/01 at 51.) The State also offered evidence that a neighbor, who 
had never spoken to Gomez, thought Gomez looked “aggressive,” which Gomez claims 
enforced a negative stereotype about Black men. (Id., citing R.T. 3/6/01 at 102–03, 106.) 
 Gomez also argues that in its closing argument, the State portrayed him, as someone 
whose girlfriend had “cut him off” from sex, and “as lazy and sex -crazed or sex-starved,” 
reinforcing a stereotype that black “men are animalistic, sexually unrestrained, inherently 
criminal, and ultimately bent on rape.” ( Id. at 3, quoting Mikah K. Thompson, Bias on 

 
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Trial: Toward an Open Discussion of Racial Stereotypes in the Courtroom, 2018 Mich. St. 
L. Rev. 1243, 1250 (2018), citing N. Jeremi Duru, The Central Park Five, The Scottsboro 
Boys, and the Myth of the Bestial Black Man, 25 Cardo zo L. Rev. 1315, 1320 (2004)). 
Thus, Gomez claims a “racialized atmosphere” during the guilt phase. He argues that “juror 
interviews are the only way to ensure” that his juries were not racially or ethnically biased 
so as to have denied him a fair trial. (Doc. 42 at 3.) 
 Gomez points to statements during the guilt -phase that could have reinforce racial 
stereotypes and animus against black men but he fails to point to anything other than 
speculation that such statements adversely affected the impartiality o f the guilt-phase jury 
or its verdict. For example, he does not cite any statements from the State or witnesses that 
tied their descriptions of Gomez to his race. Nor does he claim that any juror, or prospective 
juror, raised any issue of racial bias or animus. See Peña-Rodriguez, — U.S. —, 137 S. Ct. 
at 871. As a result, his claim is speculative. See Calderon v. United States Dist. Ct. for the 
N. Dist. of California, 98 F.3d 1102, 1106 (9th Cir. 1996 )) (stating that courts should not 
allow a petitioner to “use federal discovery for fishing expeditions to investigate mere 
speculation”). 
 Further, the trial court questioned prospective jurors about whether they had racial 
or ethnic biases and none acknowledg ed such biases. The trial court also instructed the 
jurors to decide the facts solely from the evidence produced in court and not to “be 
influenced by sympathy or prejudice” nor consider the statements of counsel as “evidence 
or the law.” (R.T. 3/5/01, “trial,” at 19–20; R.T. 3/22/01 at 35–36.) The court also instructed 
jurors to presume Gomez innocent, unless the State adduced evidence to meet its burden 
of proving Gomez guilty “beyond a reasonable doubt.” (R.T. 3/5/01, “trial,” at 21; R.T. 
3/22/01 at 36–7.) Gomez has cited nothing to rebut the presumption that the jury followed 
these instructions. See Richardson v. Marsh, 481 U.S. 200, 211 (1987). Nor has he alleged 
that any juror either failed to disclose biases based on race or national origin or lied abou t 
their ability to impartially render a verdict based on the evidence. In short, Gomez fails to 
show good cause to contact his jurors based on alleged racial or ethnic bias or animus. 

 
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 Gomez also claims that his guilt-phase and resentencing juries were discriminatorily 
composed, or were not comprised of a fair cross -section of the community, and he seeks 
leave to contact them to ascertain the race of the jurors. (Doc. 42 at 4 –5.) But he does not 
cite, and the Court has not found, any authority that good cause for discovery is established 
solely to ascertain the jurors’ race or to challenge the prosecution’s preliminary strikes. See 
Fed. R. Evid. 606(b)(2) (permitting federal jurors to testify about exposure to “extraneous 
prejudicial information” and “outsi de influence,” as well as mistakes in “entering the 
verdict on the verdict form”); see Peña-Rodriguez, — U.S. —, 137 S. Ct. at 869 (evidence 
of a juror’s clear statements that indicates he or she relied on racial stereotypes or animus 
to convict a criminal defendant admissible); see also Cota v. Ryan , No. CV -16-03356-
PHX-DJH (D. Ariz. Aug. 9, 2017) (Doc. 24 at 4) (holding that “claim of ineffectiveness 
based on a failure to challenge the State’s preliminary strikes” does not “fall under any 
Rule 606(b) exception”). Because a jury’s makeup does not fall within the categories set 
forth in Rule 606(b)(2) or Peña-Rodriguez, Gomez’s desire to ascertain the races of jurors 
is not good cause to contact them. 
 Besides, Gomez’s request to contact jurors to ascertain their races is premature 
because the parties have not fully briefed his habeas claims asserting that his guilt -phase 
and resentencing juries were discriminatorily composed. Gomez has not amended his 
habeas petition, Respondents have not answered it, and Gomez has not replied to the 
answer. The parties’ briefs may resolve such claims on the state-court record alone. 
 Finally, Gomez claims that defense counsel at both the guilt -phase and at 
resentencing failed to sufficiently question prospective ju rors about their possible biases. 
(Doc. 42 at 5–8.) To support this claim, he asserts that many of the prospective jurors either 
were crime victims or had family members who were crime victims. ( Id. at 6.) He also 
argues that in light of his all -white, guilt-phase jury, and the racial backdrop of his case, 
his counsel should have individually questioned each guilt -phase and resentencing juror 
about possible racial or ethnic biases. (Id. at 4–6.) 
 In the absence of anything in the record that reflects racial or ethnic bias or animus 

 
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influenced any juror, Gomez fails to show good cause to contact the jurors. At the guilt -
phase, the trial court excused all prospective jurors who had identified themsel ves, or 
family members, as a victim of crime who indicated they would be unable to impartially 
serve as a juror in Gomez’s case. (R.T. 2/28/01, vol. 1, at 63 –64, 77.) The court also 
questioned prospective jurors about any possible racial or national-origin biases, and none 
of indicated they could not serve impartially. ( Id. at 90–94.) And Gomez fails to point to 
anything to rebut the presumption that the panel members answered truthfully. See United 
States v. Huguenin , 950 F.2d 23, 30 (1st Cir. 1991) (adopt ing that presumption); United 
States v. Masat, 896 F.2d 88, 95 (5th Cir. 1990) (same); United States v. Spine , 945 F.2d 
143, 148 (6th Cir. 1991) (same); see also Wainwright v. Witt , 469 U.S. 412, 428 (1985) 
(explaining that the issue, whether a juror is biased, turns on “determinations of demeanor 
and credibility that are peculiarly within a trial judge’s province”). 
 Gomez, however, claims that the foreperson at the guilt phase identified himself as 
a listener of Rush Limbaugh’s radio show, and cites Limba ugh’s proclivities to make 
racially, ethnically, socially, and politically provocative statements. (Doc. 42 at 6–7, citing 
articles on Limbaugh’s controversial nature; R.T. 2/28/01, vol. 1, at 133, 135.) The court 
asked him whether there was “any reason” he thought that would render him “unable to be 
fair and impartial in this case.” (R.T. 2/28/01, vol. 1, at 135.) The foreperson answered, no. 
(Id.) Neither party sought additional follow -up. (R.T. 2/28/01, vol. 1, at 133, 135.) And 
Gomez fails to p oint to anything to support that the foreperson listened to Limbaugh 
because of racial bias or animus rather than for other reasons or that listening to Limbaugh 
prevented the juror from fairly and impartially reaching a verdict based on the evidence. 
See Irvin, 366 U.S. at 722–23; Lewis, 325 F.Supp.3d at 335. 
 Gomez also states that the resentencing jury foreperson posted negative comments 
on Facebook about fellow venire members and had “liked” several law -enforcement 
groups, as well as a group supporting Arizona Senate Bill 1070 (S.B. 1070). 2 (Doc. 42 at 
 
2 See H.R. 2162, 49th Leg., 2d Reg. Sess. (2010) (noting that the Arizona legislature 
enacted S.B. 1070 to stop unlawful entry, presence, and economic activity by those 
“unlawfully present in the United States”). 

 
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7–8.)3 This, absent more, does not support that this juror was racially or ethnically biased 
or an inference that the juror was unable to follow jury instructions or to render a fair and 
impartial verdi ct based upon the admissible evidence. See Irvin , 366 U.S. at 722 –23; 
Lewis, 325 F.Supp.3d at 335. Gomez does not claim that this juror discussed the case or 
Gomez’s race or national origin , or that this juror cited either as reasons for his negative 
comments about other panel members. Nor does Gomez point to any social media posts 
that voice racially or ethnically prejudicial opinions. In short, the resentencing juror’s 
Facebook posts, without more, do not establish good cause for Gomez to contact his jurors. 
 In sum, Gomez has failed to show good cause, at this juncture, to contact jurors. 
Therefore, the Court will deny Gomez’s motion to contact jurors. 
 Accordingly, 
 IT IS ORDERED denying Gomez’s Motion for Leave to Contact State Court 
Jurors (Doc. 42).4 
 Dated this 24th day of April, 2023. 
 
 
 
3 Gomez did not provide this evidence to the Court. 
4 In its Order granting Gomez a third extension of time to amend his habeas petition, the 
Court noted that the ruling on his motion to contact jurors would include an adjusted 
briefing schedule. (Doc. 71 at 2.) Because the Court then stayed the briefing in this case 
(Doc. 77), the Court will not adjust the briefing schedule at this time. 

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