Detrich v. Ryan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID SCOTT DETRICH, No. 08-99001

Petitioner-Appellant,

D.C. No.

v. 4:03-cv-00229-

DCB

CHARLES L. RYAN, Director of

Arizona Department of Corrections,

Respondent-Appellee. OPINION

Appeal from the United States District Court

for the District of Arizona

David C. Bury, District Judge, Presiding

Argued and Submitted En Banc

December 10, 2012—Pasadena, California

Filed September 3, 2013

Before: Alex Kozinski, Chief Judge, Harry Pregerson,

Stephen Reinhardt, Susan P. Graber, William A. Fletcher,

Ronald M. Gould, Carlos T. Bea, Mary H. Murguia,

Morgan Christen, Jacqueline H. Nguyen, and Paul J.

Watford, Circuit Judges.

Opinion by Judge W. Fletcher;

Concurrence by Judge Nguyen;

Concurrence by Judge Watford;

Dissent by Judge Graber

2 DETRICH V. RYAN

SUMMARY*

Habeas Corpus / Death Penalty

The en banc court granted a motion to remand this appeal

for the district court to rule on a motion, made under

Martinez v. Ryan, 132 S. Ct. 1309 (2012), by a petitioner

challenging his conviction and capital sentence for murder

and kidnapping.

After the district court determined that petitioner’s claims

of ineffective assistance of trial counsel at sentencing were

procedurally defaulted, the Supreme Court changed the law

with Martinez and Trevino v. Thaler, 133 S. Ct. 1911 (2013),

by creating an exception to the “cause” and “prejudice” rule

for excusing the state-court procedural default of claims

raised in a federal habeas corpus petition. The majority

remanded for the district court to rule on petitioner’s

Martinez motion, which claimed that post-conviction

counsel’s ineffective assistance excused the procedural

default of his trial ineffective assistance claims. The majority

did not address petitioner’s non-defaulted claims, and

retained jurisdiction over any subsequent appeal.

Part II of the plurality opinion (Judge W. Fletcher, joined

by Judges Pregerson, Reinhardt, and Christen), explained that

there are four requirements to overcome a procedural default:

1) that the ineffective assistance claim be “substantial,” 2)

that the “cause” consisted of there being “no counsel” or only

“ineffective” counsel during the state collateral review

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

DETRICH V. RYAN 3

proceeding, 3) that the state collateral review proceeding was

the “initial” review proceeding as to the ineffective assistance

claim, and 4) that state law requires such a claim to be raised

in an initial-review collateral proceeding, or that the state

procedural framework makes it highly unlikely in a typical

case that a defendant will have a meaningful opportunity to

raise an ineffective assistance claim on direct appeal.

Judge Nguyen concurred in the result. She wrote

separately to explain why she disagrees that Martinez

modifies the prejudice showings required to establish

ineffective assistance under Strickland v. Washington,

466 U.S. 668 (1984), and to overcome a procedural default

under Coleman v. Thompson, 501 U.S. 722 (1991).

Judge Watford concurred in the judgment, and saw no

need to say anything more than that the motion to remand is

granted.

Judge Graber, joined by Chief Judge Kozinski and Judges

Gould, Bea, and Murguia, dissented. Judge Graber would

deny the motion to remand and decide the sentencing

ineffective assistance claims now.

4 DETRICH V. RYAN

COUNSEL

Amy Sara Armstrong, and Jennifer Susan Bedier (argued),

Arizona Capital Representation Project, Tucson, Arizona, for

Petitioner-Appellant.

Kent Ernest Cattani (argued), and Laura Chiasson, Office of

the Arizona Attorney General, Tucson, Arizona, for

Respondent-Appellee.

OPINION

W. FLETCHER, Circuit Judge:

Judges Pregerson and Reinhardt concur in the entirety of

the following opinion. Judge Christen concurs in Part II and

in the result. Judges Nguyen and Watford concur in the result.

David Scott Detrich appeals from the district court’s

denial of his habeas petition. An Arizona judge sentenced

Detrich to death after a jury convicted him of murder,

kidnapping, and sexual abuse. The district court held that

several of Detrich’s claims of ineffective assistance of

counsel (“IAC”) by his trial counsel were procedurally

defaulted because he had failed to raise them during his state

post-conviction relief (“PCR”) proceedings. Applying then-

governing law, the district court rejected Detrich’s argument

that ineffective assistance of his PCR counsel could excuse

his procedural default.

While Detrich’s appeal from the district court decision

was pending in this court, the Supreme Court decided

Martinez v. Ryan, 132 S. Ct. 1309 (2012). The Court held in

DETRICH V. RYAN 5

Martinez that a state PCR counsel’s ineffective assistance in

failing to raise trial-counsel IAC claims can excuse a

procedural default. Detrich moved for a remand to the

district court to allow that court to rule on his Martinez

motion in the first instance.

We grant the motion and remand to the district court.

I. Background

Detrich was charged with first-degree murder,

kidnapping, and sexual assault in connection with the killing

of Elizabeth Souter. State v. Detrich (Detrich I), 873 P.2d

1302, 1304 (Ariz. 1994). Alan Charlton, who participated in

the events that culminated in Souter’s murder, pled guilty to

kidnapping. He then testified against Detrich in exchange for

a ten-and-a-half-year sentence.

Detrich’s first trial ended in a mistrial after a prosecution

witness testified that Detrich had invoked his rights under the

Fifth Amendment during the investigation. Id. The Arizona

Supreme Court reversed the conviction in Detrich’s second

trial because of a defective jury instruction. Id. at 1306.

After a third trial, the jury convicted Detrich of

kidnapping and first-degree murder. State v. Detrich (Detrich

II), 932 P.2d 1328, 1331 (Ariz. 1997). The jurors could not

agree on a basis to support the first-degree murder conviction.

Nine jurors found Detrich guilty of premeditated murder.

Three jurors found him guilty of only felony murder. That is,

it appears that only nine jurors were convinced that Detrich,

rather than Charlton, was the actual killer. The trial judge

concluded beyond a reasonable doubt that Detrich was the

killer. Based on that conclusion, he sentenced Detrich to

6 DETRICH V. RYAN

death for the murder and to twenty-one years in prison for the

kidnapping. Id. The Arizona Supreme Court affirmed

Detrich’s convictions and sentence. Id.

With the assistance of new counsel, Detrich filed a PCR

petition in Pima County Superior Court. Detrich alleged in

his PCR petition that counsel at his third trial had been

ineffective for failing to (1) present mitigating evidence

during sentencing; (2) present an expert witness to rebut the

aggravating factors presented by the state; (3) retain an expert

witness to examine certain pieces of forensic evidence at trial;

(4) present live testimony from exculpatory witness William

Shell instead of relying on Shell’s recorded testimony from

a prior trial; (5) object to testimony that Charlton’s plea

agreement required that he testify truthfully; and (6) preserve

other constitutional challenges for appeal. The superior court

rejected Detrich’s claims on the merits, holding that “neither

prong of the Strickland v. Washington[, 466 U.S. 668

(1984),] test has been met as to any claims of ineffective

assistance of counsel.” The Arizona Supreme Court denied

review, leaving the superior court’s four-page order as the

only reasoned state-court PCR decision.

Detrich then filed a habeas petition in federal district

court. The petition alleged some of the claims that had been

rejected in the state PCR proceeding, including the trial-

counsel IAC claims for failure to present mitigating evidence

and failure to present an expert witness to rebut the state’s

aggravation case. The petition also raised trial-counsel IAC

claims that had not been presented in the state PCR

proceedings.

Before the district court ruled, Detrich filed a second PCR

petition in the superior court. In this petition, Detrich raised

DETRICH V. RYAN 7

many of the trial-counsel IAC claims he had alleged for the

first time in his federal petition. The superior court held that

these new claims were procedurally barred under Arizona

Rule of Criminal Procedure 32.2(b) because they could have

been raised in Detrich’s first PCR petition.

The district court then ruled that Detrich’s new trial-

counsel IAC claims were procedurally defaulted for purposes

of federal habeas review. The court rejected Detrich’s

argument that the ineffectiveness of his first PCR counsel

excused his procedural default, noting that there was no

constitutional right to counsel in PCR proceedings.

The district court rejected all of Detrich’s non-defaulted

claims on the merits. After an evidentiary hearing, the

district court held that Detrich’s counsel had performed

deficiently by failing to investigate and present mitigating

evidence at sentencing, contrary to the holding of the state

PCR court. Detrich v. Schriro, No. CV-03-229-TUC-DCB,

2007 WL 4024551, at *3–10 (D. Ariz. Nov. 15, 2007). The

district court concluded, however, that Detrich had failed to

show prejudice resulting from that deficient performance as

required under Strickland. Detrich, 2007 WL 4024551, at

*10–24.

A three-judge panel of this court reversed, vacating

Detrich’s death sentence. Detrich v. Ryan, 619 F.3d 1038

(9th Cir. 2010). The panel agreed with the district court that

the Arizona PCR court had unreasonably applied Strickland

when it concluded that Detrich’s sentencing counsel had not

performed deficiently. Id. at 1052–57. However, it disagreed

with the district court on the prejudice prong of Strickland,

holding that the PCR court’s conclusion that Detrich was not

prejudiced by trial counsel’s failure to investigate and present

8 DETRICH V. RYAN

mitigating evidence was based on an unreasonable

determination of the facts. Id. at 1057–69.

The Supreme Court vacated our decision and remanded

in light of its decision in Cullen v. Pinholster, 131 S. Ct. 1388

(2011). Ryan v. Detrich, 131 S. Ct. 2449 (2011) (mem.). On

remand, the three-judge panel again reversed the district court

and vacated the death sentence. Detrich v. Ryan, 677 F.3d

958 (9th Cir. 2012). After the panel issued its second

opinion, Detrich moved to remand under Martinez. We

granted rehearing en banc. 696 F.3d 1265 (9th Cir. 2012).

Detrich’s Martinez motion is now before our en banc panel.

II. Martinez v. Ryan and Trevino v. Thaler

The district court properly concluded under then-

governing law that Detrich’s trial-counsel IAC claims raised

for the first time in his federal habeas petition had been

procedurally defaulted, and that it therefore could not hear

them. A federal court sitting in habeas ordinarily cannot hear

a petitioner’s procedurally defaulted federal claims absent a

showing of cause and prejudice, or a showing that failing to

review the claim will result in a fundamental “miscarriage of

justice.” Wainwright v. Sykes, 433 U.S. 72, 88, 90–91 (1977)

(applying the rule in the context of failure to make

contemporaneous objection); Coleman v. Thompson, 501 U.S.

722, 750 (1991) (making “explicit” that Wainwright and its

progeny apply in “all cases in which a state prisoner has

defaulted his federal claims in state court pursuant to an

independent and adequate state procedural rule”). In

Coleman, the Court held that ineffective assistance of counsel

in a state PCR proceeding cannot constitute cause to excuse

a procedural default because there is no constitutional right to

an attorney in state PCR proceedings. 501 U.S. at 752–53.

DETRICH V. RYAN 9

Applying Coleman, the district court correctly held, based on

the law as it then stood, that the ineffectiveness of Detrich’s

state PCR counsel in failing to raise trial-counsel IAC claims

could not constitute cause.

While the district court’s decision was on appeal, the

Supreme Court changed the law. See Martinez, 132 S. Ct. at

1315. The Court held in Martinez that “[i]nadequate

assistance of counsel at initial-review collateral proceedings

may establish cause for a prisoner’s procedural default of a

claim of ineffective assistance at trial.” Id. The Court

addressed the situation in Arizona, where a prisoner is

forbidden to raise a trial-counsel IAC claim on direct review.

Such a claim may be brought only in state PCR proceedings.

Id. The Court wrote that in such cases, “the collateral

proceeding is in many ways the equivalent of a prisoner’s

direct appeal as to the ineffective-assistance claim.” Id. at

1317. The Court recognized that “if counsel’s errors in an

initial-review collateral proceeding do not establish cause to

excuse the procedural default in a federal habeas proceeding,

no court will review the prisoner’s claims.” Id. at 1316.

The Court therefore held,

Where, under state law, claims of ineffective

assistance of trial counsel must be raised in an

initial-review collateral proceeding, a

procedural default will not bar a federal

habeas court from hearing a substantial claim

of ineffective assistance at trial if, in the

initial-review collateral proceeding, there was

no counsel or counsel in that proceeding was

ineffective.

10 DETRICH V. RYAN

Id. at 1320. The Court did not reach the question of whether

there is a constitutional right to effective assistance of counsel

during a state PCR proceeding. Id. at 1319–20. Rather, the

Court established an equitable rule that IAC during initial-

review PCR proceedings may constitute “cause” to excuse a

state-court procedural default. Id.

In Trevino v. Thaler, 133 S. Ct. 1911 (2013), the Court

reaffirmed and slightly expanded the Martinez rule. The

question in Trevino was whether the Martinez rule applies in

states, such as Texas, where an appellate counsel is legally

permitted to assert a claim of trial-counsel IAC on direct

review, but where it is “highly unlikely” as a practical matter

that appellate counsel will have a “meaningful opportunity”

to do so. Id. at 1921. The Court noted that Texas, unlike

Arizona, “appears at first glance to permit . . . the defendant

initially to raise a claim of ineffective assistance of trial

counsel on direct appeal.” Id. at 1915. But “in actual

operation,” the “structure and design of the Texas system . . .

make it ‘virtually impossible’ for an ineffective assistance

claim to be presented on direct review.” Id. (quoting

Robinson v. State, 16 S.W.3d 808, 810–11 (Tex. Crim. App.

2000)). The Court therefore found “no significant difference

between this case and Martinez.” Id. at 1921. The Court

concluded that “where, as here, [the] state procedural

framework, by reason of its design and operation, makes it

highly unlikely in a typical case that a defendant will have a

meaningful opportunity to raise a claim of ineffective

assistance of trial counsel on direct appeal, our holding in

Martinez applies.” Id.

This is the first occasion for an en banc panel of our court

to deal with what we will call, for ease of reference, a

Martinez motion. For the guidance of the district court on

DETRICH V. RYAN 11

remand, we take the opportunity to explicate three aspects of

the Court’s decisions in Martinez and Trevino.

A. “Cause” under Martinez and Trevino

In Martinez and Trevino, the Court created an exception

to the normally applicable “cause” and “prejudice” rule for

excusing state-court procedural default on federal habeas.

Under the usual rule, “‘cause’ . . . must be something

external to the petitioner, something that cannot fairly be

attributed to him.” Coleman, 501 U.S. at 753. State PCR

counsel’s “ignorance or inadvertence” cannot constitute

“cause” under this rule. Id. PCR counsel acts as “the

petitioner’s agent . . . , and the petitioner must ‘bear the risk

of attorney error’” because there is no constitutional right to

counsel in state PCR proceedings. Id. at 753–54 (quoting

Murray v. Carrier, 477 U.S. 478, 488 (1986)). To show

“prejudice” under the usual rule, the “habeas petitioner must

show ‘not merely that the errors at . . . trial created a

possibility of prejudice, but that they worked to his actual and

substantial disadvantage, infecting his entire trial with error

of constitutional dimensions.’” Murray, 477 U.S. at 494

(quoting United States v. Frady, 456 U.S. 152, 170 (1982)

(omission and emphasis in original).

The strict “cause” and “prejudice” rule, first articulated by

the Court in 1977 in Wainwright v. Sykes, replaced the more

lenient “deliberate bypass” rule that had been established in

Fay v. Noia, 372 U.S. 391, 438–39 (1963). The Court in

Wainwright justified the strictness of the new rule as

necessary to prevent competent defense counsel from

“sandbagging” the prosecution at trial. 433 U.S. at 89. The

Court explained that the rule discouraged “‘sandbagging’ on

the part of defense lawyers, who may take their chances on a

12 DETRICH V. RYAN

verdict of not guilty in a state trial court with the intent to

raise their constitutional claims in a federal habeas court if

their initial gamble does not pay off.” Id. Sandbagging

might consist, for example, of competent defense counsel

deliberately failing to make a constitutional objection to

testimony of a key prosecution witness, with the result that

neither the court nor the prosecutor takes corrective action

during the trial. Then, in the event that the defendant is

convicted, defense counsel could raise for the first time on

federal habeas the constitutional objection he deliberately

failed to make during trial, with the result that the conviction

would be set aside.

The concern that gave rise to the strict “cause” and

“prejudice” rule is not at issue in a Martinez motion. There

is no concern about competent defense counsel who might

“sandbag” at trial. The premise of Martinez is incompetent

counsel. Indeed, the premise is two incompetent counsel —

trial counsel and state PCR counsel. This quite different

circumstance is reflected in the Court’s more lenient rule in

Martinez for excusing procedural default. The Court justified

the rule by emphasizing the importance of the right to

effective assistance of trial counsel, which the Court called “a

bedrock principle in our justice system.” Martinez, 132 S. Ct.

at 1317. “[T]he limited nature of the qualification to

Coleman adopted here reflects the importance of the right to

the effective assistance of trial counsel and Arizona’s

decision to bar defendants from raising ineffective-assistance

claims on direct appeal.” Id. at 1320.

Under the new Martinez rule, a procedural default by state

PCR counsel in failing to raise trial-counsel IAC is excused

if there is “cause” for the default. The Court wrote in

Trevino, summarizing its holding in Martinez:

DETRICH V. RYAN 13

We consequently read Coleman as containing

an exception, allowing a federal habeas court

to find “cause,” thereby excusing a

defendant’s procedural default, where (1) the

claim of “ineffective assistance of trial

counsel” was a “substantial” claim; (2) the

“cause” consisted of there being “no counsel”

or only “ineffective” counsel during the

state collateral review proceeding; (3) the

state collateral review proceeding was

the “initial” review proceeding in respect to

the “ineffective-assistance-of-trial-counsel

claim”; and (4) state law requires that an

“ineffective assistance of trial counsel [claim]

. . . be raised in an initial-review collateral

proceeding.” Martinez, [132 S. Ct. at

1318–19, 1320–21].

Trevino, 133 S. Ct. at 1918. The Court thus clarified that

these are the only four requirements to overcome a procedural

default under Martinez.

Of the four requirements for “cause,” we need not pause

over the third or fourth. The third is self explanatory. The

fourth was modified in Trevino, as explained above. The first

and second requirements, however, merit attention.

The first requirement, that the prisoner show a

“substantial” underlying trial-counsel IAC claim, may be seen

as the Martinez equivalent of the “prejudice” requirement

under the ordinary “cause” and “prejudice” rule from

Wainwright. The second requirement, that there have been

“‘no counsel’ or only ‘ineffective’ counsel,” may be seen as

14 DETRICH V. RYAN

the Martinez equivalent of the “cause” requirement of the rule

from Wainwright.

With respect to the first requirement, that there be a

“substantial” claim, the Court wrote that a prisoner must

demonstrate that the underlying ineffective-

assistance-of-trial-counsel claim is a

substantial one, which is to say that the

prisoner must demonstrate that the claim has

some merit. Cf. Miller-El v. Cockrell,

537 U.S. 322 . . . (2003) (describing standards

for certificates of appealability to issue).

Martinez, 132 S. Ct. at 1318–19. Under the standard for

issuing a certificate of appealability, which the Court

incorporated in its definition of substantiality, “a petitioner

must show that reasonable jurists could debate whether (or,

for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented

were adequate to deserve encouragement to proceed further.”

Miller-El, 537 U.S. at 336 (internal quotation marks and

alterations omitted). Stated otherwise, a claim is

“insubstantial” if “it does not have any merit or . . . is wholly

without factual support.” Martinez, 132 S. Ct. at 1319.

The second requirement, that there have been “no

counsel” or “ineffective” counsel, does not demand a

showing of prejudice beyond that demanded under the first

requirement. The Court described the two cases to which the

second requirement applies:

The first is where the state courts did not

appoint counsel in the initial-review collateral

DETRICH V. RYAN 15

proceeding for a claim of ineffective

assistance at trial. The second is where

appointed counsel in the initial-review

collateral proceeding, where the claim should

have been raised, was ineffective under the

standards of Strickland v. Washington.

Id. at 1318. In the first of the two posited cases, the second

requirement is satisfied simply by showing that the prisoner

was not represented by counsel during state PCR

proceedings. There is no need to show “prejudice” resulting

from the failure of the pro se prisoner during the state PCR

proceeding to raise a claim of trial-counsel IAC, over and

above the need to satisfy the first Martinez requirement that

the underlying trial-court IAC claim be “substantial.” In the

second of the two posited cases, the Court did not specify the

manner in which Strickland should be applied. We conclude,

for the narrow purpose of satisfying the second Martinez

requirement to establish “cause,” that a prisoner need show

only that his PCR counsel performed in a deficient manner.

A prisoner need not show actual prejudice resulting from his

PCR counsel’s deficient performance, over and above his

required showing that the trial-counsel IAC claim be

“substantial” under the first Martinez requirement.

This reading of the requirements in the second-posited

case, where the prisoner had PCR counsel, is necessary to

harmonize the second Martinez requirement with the rest of

the Martinez framework. If a prisoner who had PCR counsel

were required to show prejudice, in the ordinary Strickland

sense, resulting from his PCR counsel’s deficient

performance in order to satisfy the second Martinez

requirement, the prisoner would have to show, as a condition

for excusing his procedural default of a claim, that he would

16 DETRICH V. RYAN

succeed on the merits of that same claim. But if a prisoner

were required to show that the defaulted trial-counsel IAC

claims fully satisfied Strickland in order to satisfy the second

Martinez requirement, this would render superfluous the first

Martinez requirement of showing that the underlying

Strickland claims were “substantial” — that is, that they

merely had “some merit.” See Martinez, 132 S. Ct. at

1318–19.

Our conclusion is reinforced by Justice Breyer’s recent

statement in Gallow v. Cooper, No. 12-7516, 570 U.S. ___

(2013) (statement “respecting the denial of the petition for

writ of certiorari”). Justice Breyer, the author of Trevino,

indicated in Gallow that once a finding of “cause” under

Martinez has been made, a federal habeas court may proceed

to the merits of the trial-counsel IAC claim under Strickland.

He wrote, “The ineffective assistance of state habeas counsel

might provide cause to excuse the default of the claim,

thereby allowing the federal habeas court to consider the full

contours of Gallow’s ineffective-assistance claim.” Id., No.

12-7516, slip op. at 2. That is, cause and prejudice under

Strickland are determined separately from, and after, a

determination of “cause” under Martinez.

We therefore read the Court’s reference to Strickland in

the second-posited case of the second requirement (where the

prisoner had PCR counsel) to mean the same thing as in the

first-posited case (where the prisoner was pro se in PCR

proceedings). That is, in both of the posited cases, no

showing of prejudice from PCR counsel’s deficient

performance is required, over and above a showing that PCR

counsel defaulted a “substantial” claim of trial-counsel IAC,

in order to establish “cause” for the procedural default.

DETRICH V. RYAN 17

B. Discovery and Evidentiary Hearing

Martinez does not apply to claims that were not

procedurally defaulted, but were, rather, adjudicated on the

merits in state court. For procedurally defaulted claims, to

which Martinez is applicable, the district court should allow

discovery and hold an evidentiary hearing where appropriate

to determine whether there was “cause” under Martinez for

the state-court procedural default and to determine, if the

default is excused, whether there has been trial-counsel IAC.

The Court recognized in Martinez that determining whether

there has been IAC often requires factual development in a

collateral proceeding. The Court emphasized that IAC claims

can require “investigative work” and development of an

“evidentiary basis” that “often turns on evidence outside the

trial record.” Martinez, 132 S. Ct. at 1317; cf. id. at 1318

(explaining that some states require delaying trial-counsel

IAC claims until post-conviction proceedings because

“[d]irect appeals, without evidentiary hearings, may not be as

effective as other proceedings for developing the factual basis

for the claim.”). For example, to determine whether an

attorney’s performance was deficient, it is often necessary to

ask the attorney to state the strategic or tactical reasons for his

or her actions. To determine prejudice, it is often necessary

to authorize discovery and conduct an evidentiary hearing to

assess the effect of the attorney’s deficient performance.

The Supreme Court held in Cullen v. Pinholster,

131 S. Ct. 1388 (2011), that a federal habeas court is

ordinarily confined to the evidentiary record made in state

court. However, Pinholster does not prevent a district court

from holding an evidentiary hearing in a Martinez case.

Pinholster applies when a “claim” has been “‘adjudicated on

the merits in State court proceedings.’” Id. at 1398 (quoting

18 DETRICH V. RYAN

28 U.S.C. § 2254(d)). But Pinholster’s predicates are absent

in the context of a procedurally defaulted claim in a Martinez

case in which a habeas petitioner seeks to excuse his default.

First, “cause” to excuse a procedural default under Martinez

is not a “claim.” A finding of IAC by the PCR counsel under

Martinez is only an “equitable” ruling that there is “cause”

excusing the state-court procedural default. Martinez,

132 S. Ct. at 1319–20. Second, in a Martinez case, neither

the underlying IAC claim nor the question of PCR-counsel

ineffectiveness has been adjudicated on the merits in a state-

court proceeding.

Martinez would be a dead letter if a prisoner’s only

opportunity to develop the factual record of his state PCR

counsel’s ineffectiveness had been in state PCR proceedings,

where the same ineffective counsel represented him. See

Strickland, 466 U.S. at 694 (noting the unfairness of applying

the restrictive “newly discovered evidence standard” where

ineffective assistance of counsel was the reason the evidence

was not discovered earlier). The same is true of the factual

record of his trial-counsel’s ineffectiveness. In deciding

whether to excuse the state-court procedural default, the

district court thus should, in appropriate circumstances, allow

the development of evidence relevant to answering the linked

Martinez questions of whether there was deficient

performance by PCR counsel and whether the underlying

trial-counsel IAC claims are substantial.

If the district court holds an evidentiary hearing before

ruling on the Martinez motion, evidence received at that

hearing is not subject to the usual habeas restrictions on

newly developed evidence. Evidentiary hearings to develop

the factual basis of a “claim” are ordinarily governed by

28 U.S.C. § 2254(e)(2). But as we have already noted, a

DETRICH V. RYAN 19

prisoner making a Martinez motion is not asserting a “claim”

for relief but instead is seeking, on an equitable basis, to

excuse a procedural default. See Martinez, 132 S. Ct. at

1319–20; cf. id. at 1320 (finding that § 2254(i) does not apply

to a Martinez motion because “cause” to overcome a

procedural default “is not synonymous with a ‘ground for

relief’”). Indeed, even with respect to the underlying trial-

counsel IAC “claim,” given that the reason for the hearing is

the alleged ineffectiveness of both trial and PCR counsel, it

makes little sense to apply § 2254(e)(2). The Court made the

nature of the problem clear in Strickland:

Even when the specified attorney error results

in the omission of certain evidence, the newly

discovered evidence standard is not an apt

source from which to draw a prejudice

standard for ineffectiveness claims. The high

standard for newly discovered evidence

claims presupposes that all the essential

elements of a presumptively accurate and fair

proceeding were present in the proceeding

whose result is challenged. An ineffective

assistance claim asserts the absence of one of

the critical assurances that the result of the

proceeding is reliable, so finality concerns are

somewhat weaker and the appropriate

standard should be somewhat lower.

466 U.S. at 694.

C. New Trial-Counsel IAC Claims

The fact that some trial-counsel IAC claims may have

been properly raised by the allegedly ineffective state PCR

20 DETRICH V. RYAN

counsel does not prevent a prisoner from making a Martinez

motion with respect to trial-counsel claims that were not

raised by that counsel. Nothing in Martinez suggests that a

finding of “cause” excuses procedural default only when state

PCR counsel raised no claims of trial-counsel IAC

whatsoever. Rather, Martinez authorizes a finding of “cause”

excusing procedural default of any substantial trial-counsel

IAC claim that was not raised by an ineffective PCR counsel,

even if some trial-counsel IAC claims were raised.

The Court wrote in Martinez:

Where . . . the initial-review collateral

proceeding is the first designated proceeding

for a prisoner to raise a claim of ineffective

assistance at trial, the collateral proceeding is

in many ways the equivalent of a prisoner’s

direct appeal as to the ineffective-assistance

claim. . . .

As Coleman recognized, an attorney’s errors

during an appeal on direct review may

provide cause to excuse a procedural default;

for if the attorney appointed by the State to

pursue the direct appeal is ineffective, the

prisoner has been denied fair process and the

opportunity to comply with the State’s

procedures and obtain an adjudication on the

merits of his claims.

Id. at 1317. The concerns expressed by the Court apply

equally to all claims of trial-counsel IAC. As the Court

recognized, an ineffective PCR counsel’s failure to raise a

valid claim of trial-counsel IAC is a denial of fair procedure.

DETRICH V. RYAN 21

It is no less a denial of fair procedure if the ineffective PCR

counsel happened to raise other, less viable, claims of trial-

counsel IAC.

We therefore read Martinez to allow new claims of trial-

counsel IAC, asserted for the first time on federal habeas,

even if state PCR counsel properly raised other claims of

trial-counsel IAC. The Court implicitly confirmed this

reading in Trevino, where it held that Martinez applied to

Trevino’s procedurally defaulted trial-counsel IAC claims

even though Trevino’s state PCR counsel had presented other

trial-counsel IAC claims during the initial-review collateral

proceeding. See Trevino, 133 S. Ct. at 1915–16.

III. Remand to the District Court

We remand to the district court under Martinez to

determine, in the first instance, whether there is “cause” to

excuse state PCR counsel’s procedural default. If the district

court finds that there was “cause,” it should then address on

the merits the substantial trial-counsel IAC claims that it

previously held procedurally defaulted under pre-Martinez

law. As to these claims, the two-step cause and prejudice test

of Strickland applies. Depending on its ruling on the merits

of these new trial-counsel IAC claims, the district court may

have occasion to revisit its earlier conclusion in this case that

the deficient performance of trial counsel did not cause

prejudice within the meaning of Strickland.

A standard practice, in habeas and non-habeas cases alike,

is to remand to the district court for a decision in the first

instance without requiring any special justification for so

doing. In cases where there is little doubt about the correct

answer, we will sometimes decide an issue in the first

22 DETRICH V. RYAN

instance rather than remand to the district court. But our

general assumption is that we operate more effectively as a

reviewing court than as a court of first instance. We see no

reason why a remand to the district court in a Martinez case

should be treated differently from a remand in other cases.

Indeed, we have remanded Martinez motions for initial

decision by the district court on prior occasions, including in

Martinez itself. See, e.g., Martinez v. Ryan, 680 F.3d 1160

(9th Cir. 2012).

The dissenters in this case believe that Detrich’s Martinez

motion has so little merit that we can confidently decide it

ourselves, with little risk that we will misunderstand the trial-

court record or that we will mistakenly conclude that

evidentiary development will not alter our view of the case.

When we remand to the district court for a decision in the

first instance, we usually do not provide a preliminary

analysis of the relevant evidence or law. We simply leave it

to the district judge to decide the remanded matter. Here,

however, we feel compelled to respond to the dissent’s

conclusion that Detrich’s defaulted claims of trial-counsel

IAC in this capital case are so obviously meritless that we can

safely decide his motion. We therefore describe the state trial

record and provide an analysis of why we believe that

Detrich’s new trial-counsel IAC claims are sufficiently

plausible that we should remand to the district court to decide

in the first instance whether they are “substantial” within the

meaning of Martinez.

The central question is whether any of Detrich’s newly

presented trial-counsel IAC claims prejudiced him at

sentencing. Even if, based on new evidence, the jury were

unwilling to find beyond a reasonable doubt that Detrich was

the actual killer, it would almost certainly convict him of

DETRICH V. RYAN 23

felony murder. Under the circumstances of this case, a

felony-murder conviction would likely still make Detrich

death-eligible. However, the trial judge did not sentence

Detrich to death for felony murder. Instead, the judge

sentenced Detrich to death based on his own conclusion,

beyond a reasonable doubt, that Detrich rather than Charlton

killed Souter. Thus, in practical effect, Detrich’s trial-counsel

IAC claims are primarily directed to his sentence rather than

his conviction. The question is whether, if the evidence that

Charlton was the actual killer were stronger — and the

evidence against Detrich therefore weaker — Detrich would

nonetheless have been sentenced to death.

To evaluate substantiality under Martinez, it is necessary

to assess the evidence at trial. If the evidence that Detrich

killed Souter were overwhelming and unassailable, as the

dissent contends, then any deficient performance by Detrich’s

counsel in failing to present additional evidence would be

very unlikely to have altered the sentencing judge’s

conclusion beyond a reasonable doubt that Detrich was the

killer. In that event, we could safely conclude that Detrich

has no real chance of showing that his new trial-counsel IAC

claims are “substantial.” But if the trial evidence were close,

then it would not take too much new exculpatory evidence to

call into question the trial judge’s sentencing decision.

We need look no further than the jury verdict to get a

general sense of the strength of the evidence. Three out of

the twelve jurors refused to convict Detrich of premeditated

murder. They were willing to convict Detrich of only felony

murder. The dissent contends that these three jurors could

have concluded that Detrich was the actual killer, but that he

lacked the premeditation necessary for a first-degree murder

conviction. See Dissent at 65–66 n.7. However, neither the

24 DETRICH V. RYAN

prosecution nor Detrich advocated such a theory at trial. In

fact, the prosecution strenuously argued against finding either

second-degree murder or manslaughter, stating during closing

argument that “[t]here is no way . . . that one can argue it is

not premeditated.” None of the witnesses supported a theory

of non-premeditated killing either, so there is little reason to

believe that the jurors adopted this view of events.

A description of the evidence at trial shows why the jurors

may have been hesitant to find that Detrich killed Souter. We

first describe the evidence. We then discuss four of Detrich’s

trial-counsel IAC claims that may be “substantial” under

Martinez.

A. Evidence at Trial

Alan Charlton and David Detrich, two white men, were

driving in Charlton’s car one evening after drinking heavily.

They picked up a black woman, Elizabeth Souter. They

drove with Souter to a bar where Souter knew to get drugs.

They then drove to Souter’s house. In the house were

Souter’s two adult daughters and an adult white woman. The

drugs were bad, and Detrich threatened Souter with a small

knife because they were bad. Detrich and Charlton then

drove away from the house with Souter. Souter’s body was

discovered in the desert two days later. She had been stabbed

numerous times. The critical question in the case was who

killed Souter — Detrich or Charlton.

The following evidence was presented at trial. We

describe the evidence that Detrich killed Souter, including all

of the evidence described by the dissent. Unlike the dissent,

we also describe the evidence that Charlton killed her.

DETRICH V. RYAN 25

1. Events Inside the House

Three adult women were in Souter’s house when she

came home with Detrich and Charlton — Gwen and Caprice

Souter, Souter’s daughters; and Tammy Winsett, a white

woman. Gwen had a baby and never came out of the

bedroom. She never saw Detrich or Charlton.

Caprice and Winsett testified that they, Souter, and the

two men were together in the living room. They testified that

Detrich became angry when he and Souter discovered that the

drugs were bad. They testified that Souter took off her dress

and lay down on a mattress on the floor. Winsett testified

that Detrich then lay down next to Souter and told her that she

would have to have sex with him because the drugs were bad.

Caprice and Winsett testified that Detrich held a small knife

to Souter’s throat. No one testified that Detrich in fact had

sex with Souter on the mattress.

Winsett testified that she sat on the couch in the living

room with Charlton. She testified that Charlton told her he

had previously killed someone. Winsett added: “He told me

if I lied to him, if I stabbed him in the back, or he said if I

fucked him over, he would kill me, too.”

Gwen Souter, who was in the bedroom and who never

saw Detrich or Charlton, testified that she heard Detrich say,

“I will kill you.” She identified Detrich as the speaker based

solely on the sound of his voice, after hearing Charlton speak

in court months later. (Detrich did not testify.) Neither

Caprice nor Winsett, who were in the living room with

Detrich and the victim, testified that they heard Detrich say

“I will kill you.” The only witness in the room who testified

26 DETRICH V. RYAN

that she heard a man say he would kill someone was Winsett,

who testified that Charlton had said he would kill her.

2. Events Outside the House

Souter was taken outside and put into Charlton’s car. It

is not clear who forced her into the car. Winsett was the only

one of the three women who testified about events outside.

She had left the house to call the police and was half a block

away. It was late at night, and there were no street lights.

Winsett testified that there was some moonlight. “[I]t was

kind of dark but you could see a little bit.” Winsett could not

determine who forced Souter into the car. She testified, “I

saw them. I don’t know who put her in the car or what. They

were all on the passenger side and then they put her in the

car.”

Charlton testified that Detrich forced Souter into the car

at knife-point. But Winsett never testified that she saw a

knife. It is unlikely that Detrich would have used the knife he

had held while still in the house. After the murder, a small

knife was found in the living room. That knife was almost

certainly the knife Detrich had held to Souter’s throat when

he lay next to her on the mattress.

An expert testified that Charlton’s fingerprints were found

on the inside of the driver’s side window while Detrich’s

prints were found on the exterior of the car on the front

passenger-side fender. There was no testimony regarding

when these prints were left, whether in the days leading up to

the murder, on the night of the murder itself, or sometime

thereafter.

DETRICH V. RYAN 27

3. Charlton’s Testimony Regarding Events in the Car

Charlton testified that he drove the car away from

Souter’s house, with Detrich in the middle of the front seat

and Souter in the front seat next to the passenger-side door.

Charlton did not explain how Detrich ended up sitting in the

middle if Detrich had forced Souter into the car from the

passenger side. He also did not explain why they would have

allowed Souter, a kidnapping victim, to sit by the passenger-

side door where she could escape by simply opening the door.

Charlton testified that while driving he looked over and

saw that Detrich was “on top of” Souter, “humping her.”

Charlton stated that he “couldn’t tell” whether or not Detrich

was having actual intercourse. In a previous trial, Charlton

had testified that he saw Detrich “raping” Souter. He had

stated multiple times at that trial that he saw actual

intercourse occurring. Both of these accounts differed from

Charlton’s initial statement to police, which was introduced

in the final trial. In that statement, Charlton said that he

could not tell whether Detrich was having either oral or

vaginal sex with Souter because he was “paying attention to

the road.” When confronted with this inconsistency, Charlton

testified that he had “remembered some things” since the time

of his initial statement. The state’s expert pathologist

testified that he had found no physical evidence of sexual

assault.

Charlton testified that he looked over later and saw that

Souter’s throat had been slit. He testified that Detrich hit

Souter and asked her several times who had provided the bad

drugs; Souter “just gurgled something” in response. Charlton

testified that Detrich then “asked me if I wanted a shot of it,

it is dead but it is warm.” Charlton testified that he declined,

28 DETRICH V. RYAN

and that they then drove to the desert where Detrich deposited

Souter’s body.

As the dissent notes, some of the forensic evidence

regarding the manner of death was consistent with Charlton’s

account. For example, the state’s pathologist testified that

Souter received forty cutting or stabbing wounds as well as

additional blunt-force injuries. Charlton’s knowledge of the

manner of death indicates that he was present at Souter’s

murder, but it does nothing to establish whether he or Detrich

killed her.

4. Knives Found on Detrich and Charlton

The police found a knife on Detrich when he was

arrested. Charlton testified that the knife was his, and that he

had not given it to Detrich. Charlton claimed that the knife

must have fallen out of his pocket and that Detrich must have

picked it up.

Charlton testified that the knife found on Detrich was the

only knife he saw Detrich holding on the night of the murder.

He testified that he later saw the knife covered in blood. The

prosecutor suggested at the outset of the trial that Detrich

killed Souter with this knife. In its narrative of the evidence,

the Arizona Supreme Court also suggested that Detrich killed

Souter with this knife. See Detrich II, 932 P.2d at 1332;

Dissent at 56–57.

The knife found on Detrich was not the murder weapon.

The state’s expert who performed the autopsy testified that

Souter’s wounds were 0.9 centimeters wide on the skin’s

surface. The blade of the knife found on Detrich was 1.7

centimeters wide. The expert testified that Detrich’s knife

DETRICH V. RYAN 29

could not have caused Souter’s stab wounds because it was

much too wide.

The police found a knife on Charlton when they arrested

him. The knife was engraved with the letters “FTW,” which

stood for “Fuck The World.” Charlton testified that this knife

was in his pocket on the night of the murder. The state’s

expert testified that this knife was more consistent with

Souter’s wounds than the knife found on Detrich.

5. Testimony of Phillip Shell

Phillip Shell testified that Charlton confessed to him in

jail that he had stabbed Souter. Shell testified that Charlton

had bragged to him about having lied in court, and that he had

bragged about getting Detrich the death penalty.

According to Shell, Charlton told him that after leaving

Souter’s house he parked the car behind a bar. Detrich started

kissing Souter in the front seat. Charlton grew angry that

Detrich was kissing a black woman, especially after she had

short-changed him on the drugs. Charlton pulled out a knife

and stabbed Souter. Souter “went crazy,” and Charlton cut

her throat. After killing Souter, Charlton climbed into the

back seat and passed out.

Some of the evidence at trial corroborated Shell’s story.

Charlton testified that they were driving when Detrich killed

Souter; that they then drove to where Detrich left Souter’s

body; and that they then drove straight to his friend William

Carbonell’s house. The entire trip described by Charlton at

trial would have taken about forty-five minutes. But

according to other evidence at trial, several hours elapsed

between the time they left Souter’s home and the time they

30 DETRICH V. RYAN

arrived at Carbonell’s house. Charlton never explained how

they spent the rest of the time. Shell explained that Charlton

told him that he spent this time sleeping in the back seat of

the car. Charlton also never explained why the police found

a pair of bloodstained jeans in the back seat. The stains were

consistent with Charlton having wiped his hands on the jeans

before going to sleep in the back seat.

Unlike other jailhouse snitches, Shell testified against the

interest of the prosecution. He received no benefit from

testifying. In fact, he was kept in custody after he was

acquitted in his own case in order to testify in Detrich’s.

Charlton admitted that he had spoken to Shell in jail, and that

he had never had any fights or disagreements with him.

6. Testimony of William Carbonell

William Carbonell worked with Charlton at Ocotillo

Motors in Benson, Arizona. Carbonell and Charlton were

friends. Carbonell had sold Charlton the car that Charlton

drove on the night of the murder. A day after the murder,

Carbonell drove Charlton to work from Tucson to Benson, a

distance of about 45 miles.

Detrich also worked at Ocotillo Motors. Showing his

degree of friendship with Detrich, Carbonell testified that

Detrich had worked at Ocotillo Motors for six months, and

that the two of them had gone drinking together on multiple

occasions. However, the owner of Ocotillo Motors testified

that Detrich had been an employee for only a month.

Carbonell testified at trial that Charlton and Detrich

arrived at his house the morning after the murder. He

testified that Detrich was covered in blood. He testified that

DETRICH V. RYAN 31

Charlton had blood on only his right side. Carbonell had

initially told police that Detrich and Charlton were both

covered with blood without specifying that Charlton had

blood on only one side. His earlier statement to police was

introduced at trial. The prosecutor used Carbonell’s trial

testimony to emphasize his theory of the case — that

Charlton had been driving while Detrich killed Souter, which

accounted for Charlton having blood on only his right side.

The evolution of Carbonell’s story was obviously helpful to

the prosecution. The prosecutor who elicited Carbonell’s

testimony was later disbarred for suborning perjury in another

capital case. See In re Peasley, 90 P.3d 764 (Ariz. 2004) (en

banc).

Carbonell testified that Detrich confessed to him on the

morning after the murder that he had stabbed Souter.

Carbonell’s testimony that Detrich had confessed to him was

critical to the state’s case. As we discuss below, however,

Carbonell had earlier made an inconsistent statement to

investigators. Detrich’s attorney failed to introduce that

statement into evidence.

7. Scratches on Charlton

There were scratches or cuts on Charlton’s arm at his

arrest. Charlton never explained where they came from.

There were also wounds on Souter’s hands. The state’s

expert testified that Souter’s wounds were consistent with

“defensive injuries” from trying to fight off an attacker.

There were no scratches or cuts on Detrich.

32 DETRICH V. RYAN

8. Charlton’s Racism

Two witnesses testified that Charlton was prejudiced

against black people. First, Phillip Shell testified that

Charlton referred to Souter as “that black bitch” and referred

to Detrich as a “nigger lover.”

Second, Charlton’s wife, Deborah Charlton, testified that

Charlton did not like black people “at all” and referred to

them as “mud ducks.” Deborah’s testimony was undermined

by the fact that she and Charlton were in the midst of an

acrimonious divorce. Deborah’s testimony was further

undermined by a support letter she had written to the court

some time earlier, during Charlton’s sentencing for his

participation in the kidnapping and death of Souter. In that

letter, she made no mention of any racism.

9. Other Evidence of Charlton’s Violent Tendencies

Charlton testified at trial that he wore Grim Reaper

earrings — the “sign of death” — on the night of the murder.

He testified that he was very upset at the time because his

marriage had fallen apart and his wife had given their kids up

for adoption without his knowledge. He testified, “I didn’t

care if I lived or died.”

Deborah Charlton testified that Charlton had an

“obsession” with Bruce Lee. She testified that he “would go

to an import store and constantly look at the swords” and

other martial arts paraphernalia. The police found a third

knife Charlton owned at his house when they arrested him: a

“[d]ouble-edged hunting knife.” Deborah testified that

Charlton sometimes carried this knife in a sheath down his

DETRICH V. RYAN 33

leg. She also testified that Charlton threatened to kill her

with it the night she left him.

B. New Trial-Counsel IAC Claims

The dissent rejects several of Detrich’s trial-counsel IAC

claims for reasons unrelated to their substance. First, the

dissent points out that some of Detrich’s trial-counsel IAC

claims were adjudicated on the merits by the first state PCR

court and were thus never procedurally defaulted. We agree

with the dissent that Martinez does not apply to such claims,

and that the following three claims were adjudicated on the

merits: (1) trial counsel failed to bring witness Shell to court

to testify; (2) trial counsel failed to rehabilitate jurors

regarding death-penalty qualification; and (3) trial counsel

failed to object to prosecutorial vouching during cross-

examination of Charlton. However, we do not agree with the

dissent as to one claim. Detrich claims that three pieces of

evidence should have been subjected to further testing. We

agree with the district court that this claim was not

adjudicated but was, rather, procedurally defaulted.

Second, the dissent would hold that two of Detrich’s trial-

counsel IAC claims were waived for purposes of Martinez

because he did not raise them with sufficient specificity in his

motion to remand to the district court. Those claims are: (1)

trial counsel failed to interview two key witnesses, Darci and

Donald Bell; and (2) trial counsel failed to cross-examine

William Carbonell by introducing a prior inconsistent

statement. We do not agree with the dissent that these claims

are waived. Detrich moved in this court for a remand to the

district court for a determination of “cause” under Martinez

after supplemental briefing in that court. His motion did not

ask us to make the initial decision whether there was “cause.”

34 DETRICH V. RYAN

Detrich’s then-pending appeal before our en banc court

involved other issues. None of the briefs or excerpts of

record had been prepared with Martinez in mind. Indeed,

they could not have been, since the Court decided Martinez

after briefing on appeal was complete. Because Detrich

moved in our court for a remand and not for a ruling under

Martinez, and because he was subject to our relatively

stringent page limits for a motion to this court, he explicitly

stated that he was providing only a “summary” of his

underlying trial-counsel IAC claims. He referred us to his

amended habeas petition for a fuller description of those

claims.

To the extent the dissent would reach the merits of

Detrich’s contention that he can show “cause” under

Martinez, it would hold that none of the procedurally

defaulted trial-counsel IAC claims is “substantial.” Unlike

the dissent, we do not decide whether Detrich’s procedurally

defaulted trial-counsel IAC claims are “substantial.” We

remand for the district court to decide that question in the first

instance.

However, we feel compelled, given the dissent, to show

that some of Detrich’s trial-counsel IAC claims are

sufficiently plausible to warrant remanding to the district

court. The following four procedurally defaulted claims

support our decision to remand to the district court for a

decision under Martinez in the first instance.

1. Failure to Interview Darci and Donald Bell

Detrich alleges that his trial counsel was ineffective for

failing to interview Detrich’s sister and brother-in-law, Darci

and Donald Bell. Neither Darci nor Donald testified at trial.

DETRICH V. RYAN 35

In an affidavit presented to the district court, Darci states that

she saw Detrich the morning after the murder. She states that

she washed Detrich’s bib overalls and that they had no blood

on them. She states, further, that the police officers

investigating the crime were extremely aggressive, searching

her house with guns drawn and without a warrant. Finally,

she states that the officer who interviewed her “stopped the

tape a few times to tell me what I was supposed to say.”

Donald describes similar police conduct in his affidavit.

According to Darci and Donald, Detrich’s attorneys never

contacted them.

Detrich’s trial counsel was on notice in numerous ways

that the Bells had useful information. Darci states that she

“left many messages” for Detrich’s attorney, but he never

responded. Darci reports that Detrich gave his attorney her

contact information as well. Charlton testified in one of the

earlier trials that Detrich had asked him for a ride to Darci’s

house the morning after the murder. Charlton testified that

Detrich said Darci “was going to wash his clothes for him.”

Charlton’s testimony indicated that there was blood on

Detrich’s clothes that needed to be washed off. It also made

clear that Darci could have been a key witness.

Trial counsel’s failure to contact Darci and call her as a

witness may have prejudiced Detrich in several ways. First,

Darci’s eyewitness statements that there was no blood on

Detrich’s clothes would have directly rebutted Charlton and

Carbonell’s accounts. Darci did not see Detrich immediately

after the murder, but she saw him later the same morning,

after he left Carbonell’s house. Detrich did not return home

in the interim, and there is no evidence that he washed his

clothes before arriving at Darci’s. To the contrary, Charlton

36 DETRICH V. RYAN

testified that Detrich asked Charlton to take him to Darci’s

house specifically so that she could wash his clothes for him.

Darci states unambiguously that she washed Detrich’s

clothes, including his “bib overalls,” and that they did not

have blood on them. Charlton testified that Detrich was

wearing bib overalls the night of the murder and that they

were “saturated” with blood. Detrich was wearing the

overalls when he arrived at Carbonell’s house allegedly

covered in blood, as Carbonell recounted to investigators:

Q: What were they wearing, do you recall?

[Carbonell]: [Detrich] had a set of bib overalls

on that he had on the day before, and

[Charlton], he just had a regular pair of Levis

and a shirt on, I think. And, they was both all

covered with blood.

(Emphasis added.) Darci’s testimony would have directly

rebutted Charlton and Carbonell’s accounts that the same

overalls were saturated with blood. The dissent speculates,

somewhat oddly and entirely without evidence, that Detrich

might have been carrying multiple pairs of “bib overalls.”

Second, Darci’s testimony that the police instructed her

to lie would have suggested that other witnesses were not

testifying truthfully. For example, her testimony would have

raised additional doubts about why Carbonell’s story about

the blood on Charlton had improved at trial. Finally, Darci

stated in her affidavit that Charlton’s earring was “an Aryan

Nation symbol.” As we discuss next, testimony about

Charlton’s connection to the Aryan Nation (or Brotherhood)

DETRICH V. RYAN 37

would have strengthened the evidence of Charlton’s motive

for the killing.

2. Failure to Investigate and Introduce Evidence Against

Charlton

Detrich alleges that his trial counsel was ineffective for

failing to interview or investigate Charlton and for failing to

introduce evidence of Charlton’s connections to the Aryan

Brotherhood. Detrich’s trial counsel never tried to interview

Charlton before trial. He also failed to investigate Charlton’s

connections to the Aryan Brotherhood, a violent white

supremacist organization. James Williams, defense counsel’s

investigator, stated in a post-trial affidavit:

I was not asked by defense counsel to pursue

or conduct interviews of witnesses pertaining

to the issue of [Charlton’s] involvement with

the Aryan Brotherhood; I believe this was

important since [Charlton] was known to be

involved with the Aryan Brotherhood, and

have a hatred of African-Americans, whereas

Mr. Detrich did not have such a hatred; the

victim in this matter was African-American.

Deborah Charlton told investigator Williams before trial

that her husband was involved with the Aryan Brotherhood

while in jail. Charlton had been in jail for three years at the

time. There were numerous people in the jail who might have

known about Charlton’s Aryan Brotherhood affiliations.

Further, Charlton might also have discussed with other

inmates his involvement in Souter’s murder. Williams stated

in a post-trial interview that this was common in his

experience, noting that “they can’t keep their mouths shut for

38 DETRICH V. RYAN

a month over in Pima County jail so after three years they’re

all bragging there.” Phillip Shell testified that this was

precisely what Charlton had done in confessing to him.

Williams suggested to defense counsel that he go to the

jail, request Charlton’s records, and interview officers and

Charlton’s former cell mates. Williams thought it was “really

critical” to perform this investigation. Defense counsel

rejected Williams’ suggestion.

Defense counsel’s failure to develop and introduce

evidence of Charlton’s Aryan Brotherhood connection, as

well as additional evidence of his racism, may have

prejudiced Detrich. Even though Charlton’s trial testimony

was impeached in some respects, the jury would have found

it difficult to accept that he was the actual killer without a

coherent explanation for why he would have killed Souter.

Charlton’s racist attitudes were his alleged motivation for

killing Souter, but evidence at trial of Charlton’s racism was

weak. Only two witnesses testified to his racism: Phillip

Shell and Deborah Charlton. Deborah had credibility

problems since she and Charlton were in the midst of a

contentious divorce. The prosecutor also impeached Deborah

with her prior letter to the court, in which she had described

Charlton in entirely positive and non-racist terms.

In closing arguments, the prosecutor specifically

commented on the weakness of the evidence of Charlton’s

racism:

[Defense counsel] suggested . . . Alan

Charlton doesn’t like blacks and had a pet

DETRICH V. RYAN 39

name for them. That came from but one

witness, Mr. Charlton’s soon-to-be ex-wife.

Number one, I would submit to you that the

Defendant doesn’t have any burden in this

case. He doesn’t have to call a witness. He

doesn’t have to do anything. But what he

does have is the subpoena power. I can

assure you that if any of that were true, that

Charlton didn’t like blacks and has a grudge

against them that would somehow or another

explain what happened here, you would have

seen a line of witnesses come up to the witness

stand. They weren’t called because it simply

isn’t true. You had a chance to hear the

testimony of the soon-to-be ex-wife of Alan

Charlton and she simply lied. Exactly why, I

don’t know, and I don’t — you can use your

common sense as well.

(Emphasis added.) Additional evidence of Charlton’s racism

would have foreclosed the prosecutor’s argument. The

prosecutor may also have committed misconduct — to which

defense counsel did not object — by giving his personal

assurance that there were no other witnesses to testify to

Charlton’s racist beliefs and by stating his opinion that a

defense witness had lied. See United States v. Necoechea,

986 F.2d 1273 (9th Cir. 1993) (prosecutorial misconduct to

comment on facts not in evidence); United States v. Garcia-

Guizar, 160 F.3d 511 (9th Cir. 1998) (prosecutor

impermissibly vouched by calling defendant a “liar”).

There was no evidence whatsoever introduced at trial

about Charlton’s connections to the Aryan Brotherhood. The

40 DETRICH V. RYAN

Aryan Brotherhood is a powerful white supremacist group

responsible for a number of race-based murders. Even if the

jury believed that Charlton did not like black people, it would

have been qualitatively different to know that he was

involved in the Aryan Brotherhood, whose members commit

racially motivated murders.

3. Failure to Conduct Forensic Testing

Detrich alleges that his counsel was ineffective for failing

to conduct independent forensic testing of three pieces of

evidence: human hairs found on Souter, the knives alleged to

be possible murder weapons, and a needle found at Souter’s

house. In his first PCR petition, Detrich alleged that his trial

counsel was ineffective for failing adequately to test “the

physical evidence.” He specifically named certain pieces of

evidence, including the front-seat covers of Charlton’s car, a

jacket recovered with the seat covers, and the jeans found in

the back seat. He did not mention the hairs found on Souter,

the knives alleged as murder weapons, or the needle. The

PCR court denied the evidentiary-testing claim raised in that

court, specifically discussing the seat covers, the car, and the

victim’s fingernail. The district court found that the forensic-

testing claim had been properly raised before the first state

PCR court as to the pieces of evidence listed in the PCR

petition. But it held that the claim had been procedurally

defaulted in state court as to the hairs, the knives, and the

needle.

The dissent contends that the district court erred in its

determination that the trial-counsel IAC claim as to these

three pieces of evidence was defaulted. We disagree.

Detrich’s non-specific reference to all of “the physical

evidence” in his first PCR petition did not sufficiently present

DETRICH V. RYAN 41

the claim to the state court as to each piece of evidence.

Indeed, we have little doubt that, in a non-Martinez setting,

the dissenters would agree that such a catch-all reference did

not exhaust the specific claims later asserted, any more than

a PCR petition asserting trial-counsel IAC for violations of

“all amendments to the U.S. Constitution” would exhaust all

possible constitutional challenges.

On the merits, it is easy to see how testing of this

evidence could have been useful. For example, the state had

begun to test the hairs found on Souter. But the state’s

analyst had insufficient time to complete her testing. As a

result, the analyst could not identify who had left the hairs.

The analyst specifically admits in her affidavit that the step

she skipped might have allowed her to identify the source of

the hairs. If it turns out that Charlton’s hairs were found on

the victim, it would provide additional evidence that he killed

Souter while she struggled against him. Similarly, any

additional evidence that the knife found on Charlton was the

murder weapon would create further doubt that Detrich was

the killer.

The dissent contends that any new forensic evidence

implicating Charlton could not have made a difference

because the existing evidence at trial was so strong. We have

already noted that three jurors do not appear to have believed

that Detrich actually killed Souter. Those jurors convicted

him of only felony murder.

More specifically, the dissent contends that the forensic

evidence at trial corroborated the evidence against Detrich.

The dissent points to the incomplete test results of the hairs

found on the victim, as well as to the testing of fingernails

and the “examinations for fingerprints, blood, and semen in

42 DETRICH V. RYAN

the car.” Dissent at 73. We take in turn the four pieces of

evidence upon which the dissent relies. None of this

evidence demonstrated that Detrich, as opposed to Charlton,

was the killer. If anything, it pointed to Charlton as the actual

killer.

First, one of Souter’s fingernails was found in the car.

Souter may well have lost the nail while trying to fight off her

attacker with her hands. This would be consistent with the

state pathologist’s testimony that Souter had “defensive

injuries.” But the only physical evidence that either Charlton

or Detrich had engaged in a struggle was the scratches on

Charlton’s arms.

Second, Charlton’s fingerprints were found on the

driver’s side of the car. This proved little since Charlton

owned the car. It was uncontested that he had been the driver

on the night of the murder. Detrich’s fingerprints were found

only on the front passenger-side fender.

Third, blood was found on the front-seat covers, including

the seat cover on the driver’s side of the car, and on the jeans

in the back seat. The blood suggested strongly that Souter

had been killed inside the car, but it did not answer the

question of who killed her. The bloody seat cover on the

driver’s side of the car, as well as the jeans in the back seat,

were consistent with Charlton having killed Souter.

Fourth, there was no semen found, in the car or

elsewhere. The state’s pathologist specifically testified that

he found no semen during the autopsy. Not only did the

pathologist testify that he found no semen, he also testified

that he had found no physical evidence of sexual assault. The

pathologist’s testimony cast doubt on Charlton’s claims about

DETRICH V. RYAN 43

Detrich “humping” or “raping” Souter in the car. It also

reinforced Shell’s testimony that Charlton had killed Souter

when Detrich was only kissing her.

4. Failure to Cross-Examine William Carbonell

Detrich alleges that defense counsel failed to cross-

examine Carbonell with a prior inconsistent statement.

Carbonell testified at trial that Detrich had confessed to him

that he had killed Souter:

Q: Tell the jury what it was [Detrich] told you

the second time.

[Carbonell]: [Detrich] told me he killed a girl.

...

Q: Did he say how he killed her?

A: With a knife.

Q: Did he say he cut her throat?

A: Yes, sir.

This testimony was devastating to Detrich. It was also

inconsistent with what Carbonell had stated in a pre-trial

interview with investigators.

Carbonell had stated in his pre-trial interview that Detrich

had not told him that he had killed Souter. Carbonell had

stated that he had merely “surmised” that Detrich had been

44 DETRICH V. RYAN

the killer. He had stated that Charlton told him that Detrich

had killed Souter:

[Carbonell]: [Detrich] didn’t say that he

killed the girl. But, he said [Charlton] was

driving the car. So, I guess — I just sum —

surmised that — that —

Q: Yeah.

A: — he had — he had been the one that cut

the girl. ‘Cause [Charlton] told me later on[]

that he did cut the girl up.

(Emphasis added.) Carbonell’s prior statement thus

specifically contradicted his repeated trial testimony that

Detrich had confessed to killing Souter.

The jury never heard Carbonell’s prior statement because

Detrich’s trial counsel failed to introduce it. Carbonell’s

testimony about Detrich’s confession was one of the most

damaging pieces of evidence at trial. In sentencing Detrich

to death, the trial judge specifically cited Detrich’s alleged

confession to Carbonell that he had “‘[k]illed some chick for

getting bad drugs.’” Carbonell’s prior statement would have

directly contradicted his own testimony. Without this

testimony, the state’s only direct evidence of guilt came from

Charlton, who had an obvious motive to lie and whose story

was contradicted by other evidence in the record.

The dissent writes that Carbonell’s prior statement was

that Detrich had told him that “Charlton was driving at the

time” Souter was killed. Dissent at 68. If this were true,

Detrich’s reported statement would have implied that he had

DETRICH V. RYAN 45

killed Souter. But Carbonell did not say that. In his prior

statement, Carbonell said only that Detrich had told him that

Charlton “was driving” the car. It was uncontested that

Charlton was driving the car on the night of the murder.

Carbonell never stated that Detrich had told him that Souter

had been killed while Charlton was driving.

The dissent also asserts that any difference between

Carbonell’s testimony and his prior statement was

“negligible.” Dissent at 68. We disagree. Carbonell testified

at trial that a few hours after the murder, Detrich told him that

he had killed Souter by slitting her throat with a knife. In his

prior statement, Carbonell stated that Detrich “didn’t say that

he killed the girl.” Carbonell stated that he had merely

“surmised” that Detrich was the killer based in part on what

Charlton told him. No reasonable trier of fact could find the

difference between these statements to be “negligible.”

Conclusion

We grant Detrich’s motion to remand for the district court

to rule, in the first instance, on his Martinez motion. We do

not reach Detrich’s non-defaulted sentencing-phase IAC

claims. We cannot properly evaluate those claims at this time

because Detrich’s Martinez motion raises additional claims

that his trial counsel’s ineffectiveness prejudiced him at

sentencing. It would be premature to evaluate prejudice from

his non-defaulted claims before we know what additional

prejudice might have resulted from the defaulted ones. We

will reach the non-defaulted claims, if appropriate, after the

district court has decided Detrich’s Martinez motion and any

trial-counsel IAC claims for which Detrich’s state-court

procedural default is excused.

46 DETRICH V. RYAN

The en banc panel will retain jurisdiction over any

subsequent appeal.

VACATED IN PART and REMANDED.

NGUYEN, J., concurring in the result:

I agree with the plurality that Detrich is entitled to a

remand under Martinez v. Ryan, 132 S. Ct. 1309, 182 L. Ed.

2d 272 (2012). I write separately to explain why I disagree

that Martinez modifies the prejudice showings required to

establish ineffective assistance of counsel under Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984), and to overcome a procedural default under Coleman

v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 115 L. Ed. 2d

640 (1991).

There is understandable confusion over how to analyze

“prejudice” in this case given that it involves distinct types of

prejudice for which the Supreme Court has articulated

separate tests. In evaluating the merits of whether trial or

post-conviction counsel rendered constitutionally ineffective

assistance, we follow the standard set forth in Strickland.

This requires a convicted defendant to show both “that

counsel’s performance was deficient” and “that the deficient

performance prejudiced the defense.” Strickland, 466 U.S. at

687. The Strickland prejudice showing is met when “there is

a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been

different.” Id. at 694.

DETRICH V. RYAN 47

When the ineffective-assistance-of-counsel claim is

procedurally defaulted, however, we do not necessarily reach

its merits. First, the habeas petitioner must “demonstrate

cause for the default and actual prejudice as a result of the

alleged violation of federal law.”1 Coleman, 501 U.S. at 750.

With respect to “cause,” Coleman held that counsel’s

ineffective assistance constitutes cause to overcome a

procedural default but only where effective assistance is

constitutionally required—i.e., not in post-conviction

proceedings, where there is generally no right to an attorney.

Id. at 754. The prejudice prong requires the petitioner to

establish “not merely that the errors at trial created a

possibility of prejudice, but that they worked to his actual and

substantial disadvantage, infecting his entire trial with error

of constitutional dimensions.” Murray v. Carrier, 477 U.S.

478, 494, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986) (quoting

United States v. Frady, 456 U.S. 152, 170, 102 S. Ct. 1584,

71 L. Ed. 2d 816 (1982)) (internal quotation marks and

ellipsis omitted). “A finding of cause and prejudice does not

entitle the prisoner to habeas relief. It merely allows a federal

court to consider the merits of a claim that otherwise would

have been procedurally defaulted.” Martinez, 132 S. Ct. at

1320.

The Supreme Court left no doubt that Coleman’s cause-

and-prejudice standard applies “[i]n all cases in which a state

prisoner has defaulted his federal claims in state court

pursuant to an independent and adequate state procedural

1

Coleman also recognizes a second way to overcome a procedural

default without showing cause and prejudice—by “demonstrat[ing] that

failure to consider the claims will result in a fundamental miscarriage of

justice.” 501 U.S. at 750. The fundamental-miscarriage-of-justice

exception is not at issue here.

48 DETRICH V. RYAN

rule.” Coleman, 501 U.S. at 750 (emphasis added). Martinez

does not address—let alone modify—the standard’s prejudice

prong. See Martinez, 132 S. Ct. at 1321 (“[T]he Court of

Appeals did not determine whether Martinez’s attorney in his

first collateral proceeding was ineffective or whether his

claim of ineffective assistance of trial counsel is substantial.

And the court did not address the question of prejudice.

These issues remain open for a decision on remand.”); see

also Trevino v. Thaler, 133 S. Ct. 1911, 1917, 185 L. Ed. 2d

1044 (2013) (describing “the issue directly before the Court”

in Martinez as “whether Martinez had shown ‘cause’ to

excuse his state procedural failing”).

Rather, the Supreme Court created a “narrow exception”

to “modify the unqualified statement in Coleman that an

attorney’s ignorance or inadvertence in a postconviction

proceeding does not qualify as cause to excuse a procedural

default.” Martinez, 132 S. Ct. at 1315 (emphasis added).

Post-conviction counsel’s ineffective assistance meets the

cause prong where, among other things, the claim that post-

conviction counsel should have raised but did not—i.e., that

trial counsel rendered ineffective assistance—“is a substantial

one, which is to say that . . . the claim has some merit.” Id. at

1318. I agree with the plurality that this is, in a sense, a

measure of prejudice, and that it is not a demanding standard.

It weeds out a claim of ineffective assistance only if “it does

not have any merit or . . . is wholly without factual support.”

Id. at 1319.

I disagree with the plurality, however, that prejudice can

be presumed. See Plurality op. at 15 (“[A] prisoner need

show only that his PCR counsel performed in a deficient

manner.”). The plurality conflates the situation where a

petitioner has no postconviction counsel with one where there

DETRICH V. RYAN 49

was postconviction counsel but counsel was ineffective. See

Plurality op. at 14–16. But Strickland warns against

presuming prejudice except where there is “[a]ctual or

constructive denial of the assistance of counsel altogether,”

“state interference with counsel’s assistance,” or “when

counsel is burdened by an actual conflict of interest.”

Strickland, 466 U.S. at 692. In all other cases, a prejudice

showing is necessary. Id. at 693. Thus, a substantial

Strickland claim normally entails a substantial showing of

both deficient performance and prejudice.

I also disagree with the dissent to the extent it wrongly

reads Martinez as modifying Coleman’s prejudice prong. See

Dissent at 58 (“Under Martinez, a court may excuse the

procedural default of an IAC claim in cases like this one if the

petitioner establishes both (1) cause, by showing either that

no counsel was appointed in the initial-review collateral

proceeding or that the appointed post-conviction counsel was

ineffective under [Strickland]; and (2) prejudice, by showing

that the underlying claim of trial counsel’s ineffectiveness is

‘substantial,’ meaning that it has ‘some merit.’”).

The reason Martinez imposes a substantiality requirement

to show cause for the procedural default is straightforward.

If the asserted claim of ineffective assistance by trial counsel

is patently meritless, post-conviction counsel’s failure to raise

it was reasonable and therefore not a ground to excuse the

petitioner from bringing the claim before the state courts in a

procedurally proper manner. Only if the claim is substantial

and Martinez’s other cause requirements are met must the

federal court perform Coleman’s more searching prejudice

inquiry.

50 DETRICH V. RYAN

Although the Coleman and Strickland prejudice standards

are articulated differently, precedents from this court and the

Supreme Court suggest that they are one and the same. See,

e.g., Robinson v. Ignacio, 360 F.3d 1044, 1054 (9th Cir.

2004) (“When conducting a ‘prejudice’ analysis in the

context of [overcoming a procedural default], this court

applies the standard outlined in [Strickland].”); see also Roe

v. Flores-Ortega, 528 U.S. 470, 484, 120 S. Ct. 1029, 145 L.

Ed. 2d 985 (2000) (“[W]e follow the pattern established in

Strickland . . . requiring a showing of actual prejudice (i.e.,

that, but for counsel’s errors, the defendant might have

prevailed) . . . .”).

Consequently, when the cause to excuse a procedural

default is counsel’s constitutionally ineffective assistance, I

agree with the dissent inasmuch as it would require the usual

Strickland prejudice showing to overcome the procedural

default, see Dissent at 59 n.3, though not with its contention

that a “substantial” Strickland claim is relevant to Coleman’s

prejudice inquiry. It is important to distinguish between

Martinez’s substantiality requirement, which focuses on

whether the claim of error by trial counsel is substantial, and

the Strickland/Coleman prejudice requirement in the Martinez

context, which focuses on whether there is a reasonable

probability that the result would have been different if post-

conviction counsel had highlighted trial counsel’s deficient

performance. There is, of course, considerable overlap

between the two. Cf. Moormann v. Ryan, 628 F.3d 1102,

1106–07 (9th Cir. 2010) (“[T]o determine whether appellate

counsel’s failure to raise [ineffective-assistance-of-trial-

counsel] claims was objectively unreasonable and prejudicial,

we must first assess the merits of the underlying claims that

trial counsel provided constitutionally deficient

representation.”).

DETRICH V. RYAN 51

While I agree in certain respects with the dissent’s view

on how the Martinez analysis should proceed, ultimately I

agree with the plurality and Judge Watford that the district

court is best situated to apply Martinez in the first instance.

WATFORD, Circuit Judge, concurring in the judgment:

I agree with the majority that we should grant petitioner’s

motion to remand the case to the district court, so that the

district court can determine in the first instance whether

petitioner’s procedural default may be excused under

Martinez v. Ryan, 132 S. Ct. 1309 (2012). As the dueling

opinions in this case confirm, assessing whether petitioner’s

ineffective assistance of counsel claims have “some merit”

under Martinez, id. at 1318, requires a highly fact- and

record-intensive analysis. Allowing the district court to

undertake that analysis first is generally the more prudent

course. A remand in such circumstances does not merely

conserve judicial resources, although that is a particularly

important consideration when, as here, we are convened as an

en banc court. It also helps to improve the quality of our

review process by providing an initial determination that may

narrow the bounds of disagreement, and that at a minimum

enables the parties to articulate their positions more

effectively based on a common point of departure. Since this

is a court of review, “not first view,” Holland v. Florida,

130 S. Ct. 2549, 2565 (2010) (internal quotation marks

omitted), I see no need at this point for us to say anything

more than that petitioner’s motion to remand is granted.

52 DETRICH V. RYAN

GRABER, Circuit Judge, with whom KOZINSKI, Chief

Judge, and GOULD, BEA, and MURGUIA, Circuit Judges,

join, dissenting:

I respectfully dissent.

This case presents one question arising under 28 U.S.C.

§ 2254(d)(1): whether the Arizona courts unreasonably

denied Petitioner’s claim that he received ineffective

assistance of counsel (“IAC”) at sentencing. Petitioner’s

motion presents us with a different legal question: whether

the Supreme Court’s recent decision in Martinez v. Ryan,

132 S. Ct. 1309 (2012), allows Petitioner to overcome his

procedural default as to certain claims of IAC concerning the

guilt phase of his trial. The majority decides neither, leaving

the sentencing issue for another day and punting the Martinez

question to the district court. In my view, a remand without

a ruling fosters undue delay. Some of Petitioner’s IAC

claims were waived; as to others, which the state court

decided on the merits, Martinez is irrelevant; and the

remainder do not meet either the “cause” or the “prejudice”

prong of Martinez. I would, therefore, deny the motion to

remand and decide the sentencing IAC claim now.

A. Petitioner’s Martinez Motion

1. The Evidence at Trial

The majority provides a thorough recitation of the

evidence at trial that favored one side: Petitioner. But it

glosses over, dismisses, or ignores substantial evidence on the

other side—evidence that the jury and the sentencing court

found sufficient to establish beyond a reasonable doubt both

Petitioner’s guilt and his eligibility for a capital sentence.

DETRICH V. RYAN 53

That evidence includes substantial testimonial and

forensic evidence that Petitioner was the killer. Witnesses

testified that Petitioner held a knife to the victim’s throat, that

he demanded that she have sex with him, that he threatened

to kill her, that he forced her into the passenger side of a car,

that he entered the car on the passenger side, and that

Charlton drove the car away. Charlton testified that

Petitioner forced the victim into the car at knife-point, that

Charlton drove the car while Petitioner and the victim were

in the passenger seat and that, at some point, he saw

Petitioner “humping” her. He also testified that, when he

looked over later, the victim’s throat had been slit; in

response to several questions, she made only a “gurgling”

noise. Charlton further testified that Petitioner asked if

Charlton wanted “a shot at it” after the victim was dead and

that Petitioner deposited the body in the desert.

In addition to those witnesses, a pathologist testified that

the victim received at least 40 cutting and stabbing wounds,

as well as numerous blunt-force injuries, which were

consistent with Charlton’s testimony. Another expert

testified that Charlton’s fingerprints were found on the

interior of the driver’s side window of his car, whereas

Petitioner’s prints were found on the passenger side of the

car. And William Carbonell, a co-worker and acquaintance

of Petitioner and Charlton, testified that the two men arrived

at his house covered in blood, that Charlton had blood only

on his right side but Petitioner had blood all over himself, that

Petitioner confessed to killing a woman in a manner that was

consistent with Charlton’s testimony, and that Charlton

related to him an account of what had happened that was

similar to Charlton’s testimony at trial. The majority avoids

the significance of this testimonial evidence, the forensic

evidence that corroborated it and, most importantly, the state

54 DETRICH V. RYAN

court’s determination that the evidence proved, beyond a

reasonable doubt, that Petitioner was the killer.

The trial evidence and the facts of this case were fairly

summarized by the Arizona Supreme Court, as follows:

[Petitioner] and Alan Charlton worked

together at the Ocotillo Motors wrecking yard

in Benson, Arizona. On November 4, 1989, a

Saturday afternoon, [Petitioner] and Charlton

left work and headed to a local bar. Charlton

estimated that he and [Petitioner] each

consumed between twelve and twenty-four

cans of beer. Two hours after they started

drinking, the men drove to Tucson.

Upon arriving in Tucson, [Petitioner] and

Charlton visited several more bars and

consumed more beer. At some point during

the evening, [Petitioner] suggested that they

“pick up” somebody. When the two men saw

the victim, Elizabeth Souter, walking along

the Palo Verde bridge, they stopped the car

and Souter climbed in. [Petitioner] asked her

to help them obtain some cocaine. She agreed

and directed the two men to a “roadhouse”

where [Petitioner] and Souter purchased the

cocaine.

The two men and Souter then drove to

Souter’s home, where [Petitioner] attempted

to “cook a spoon,” which entailed dissolving

the cocaine in a spoon so that it could be

injected. [Petitioner] soon became angry

DETRICH V. RYAN 55

because the syringe would not pick up the

cocaine. [Petitioner] began “screaming and

hollering that the needle wasn’t any good, or

the cocaine wasn’t any good.” [Petitioner]

told Souter that she was going to pay for the

bad drugs by having sex with him—“He told

her they could go in the room or do it right

there, or they would do it his way, and she did

not want to do it his way.” Three witnesses,

Charlton, Tami Winsett, and Caprice Souter

(the victim’s daughter), confirmed that

[Petitioner] was holding a knife against

Souter’s throat. Additionally, [Petitioner]

threatened, “You must not believe me, I will

kill you.”

[Petitioner] then told Souter, “Come on

bitch, we are going for a ride.” Souter,

Charlton, and [Petitioner] climbed into

Charlton’s car. Charlton drove, [Petitioner]

sat in the middle, and Souter sat up against the

passenger door. [Petitioner] ordered Charlton

to drive out of town. Charlton testified that,

while stopped at a red light, he looked at

[Petitioner] and saw that [Petitioner] was

“humping” Souter and asking her how she

liked it. Moments later, Charlton again

looked and saw that Souter’s throat was slit.

Charlton indicated that [Petitioner] then hit

her and asked her who “she got the shit off

of.” Souter was unable to answer clearly; she

just gurgled something. [Petitioner] then hit

her with his elbow and asked again who she

got the drugs from. She gurgled again in

56 DETRICH V. RYAN

answer. [Petitioner] then asked, “Did you say

Mike?” Souter gurgled a third and final time,

and Charlton heard no more sounds from her.

Although Charlton claims he never saw

[Petitioner] actually stab Souter, Charlton was

himself poked in the arm with the knife three

or four times. The pathologist established that

Souter was stabbed forty times.

At this point, [Petitioner] asked Charlton,

“It’s dead but it’s warm. Do you want a shot

at it?” Charlton declined. They drove to a

remote area approximately fifteen minutes

(seven to nine miles) from Souter’s home.

Charlton pulled the car over at [Petitioner’s]

request, and [Petitioner] dragged Souter’s

body into the desert.

After dumping the body, Charlton and

[Petitioner] drove to their friend William

Carbonell’s house in Tucson. Carbonell

testified that the two men showed up at his

house at 4:00 a.m. [Petitioner] was covered

with blood, but Charlton had blood only on

his right side. Approximately an hour later,

[Petitioner] confessed to Carbonell that he had

killed a girl by slitting her throat. [Petitioner]

explained that he grabbed the girl at her house

and forced her into Charlton’s car at knife

point, where [Petitioner] killed her.

[Petitioner] further explained that he killed

Souter because the drugs she had purchased

were bad.

DETRICH V. RYAN 57

After several days, Carbonell called in an

anonymous tip to the police, who were able to

trace the call to Carbonell. After questioning

Carbonell, the police went to Ocotillo Motors

and arrested Charlton, who confessed his

involvement in the crime. [Petitioner] was

arrested in New Mexico several days later in

possession of a folding knife. Charlton

identified the knife as his; however, he

explained that it often fell out of his pants.

Charlton confirmed that [Petitioner] possessed

the knife the night of the murder. Charlton

also noticed that [Petitioner] had the knife the

morning after the murder and that it was

covered with blood.

[Co-defendant Charlton pleaded guilty to

a single count of kidnapping and testified

against Petitioner. He was sentenced to ten

and one-half years in prison.]

State v. Detrich (Detrich II), 932 P.2d 1328, 1331–32 (Ariz.

1997) (footnote omitted).1

1

To the extent that Petitioner now seeks to contradict the state court’s

factual determinations, he bears a heavy burden of proof. See 28 U.S.C.

§ 2254(e)(1) (providing that the state court’s factual determinations “shall

be presumed to be correct” unless the petitioner rebuts that presumption

“by clear and convincing evidence”). Indeed, he does not contend on

appeal that the quoted findings are erroneous; as noted, he raises only a

sentencing claim about mitigation.

58 DETRICH V. RYAN

2. Application of Martinez

Under Martinez, a court may excuse the procedural

default of an IAC claim in cases like this one if the petitioner

establishes both (1) cause, by showing either that no counsel

was appointed in the initial-review collateral proceeding or

that the appointed post-conviction counsel was ineffective

under Strickland v. Washington, 466 U.S. 686 (1984); and (2)

prejudice, by showing that the underlying claim of trial

counsel’s ineffectiveness is “substantial,” meaning that it has

“some merit.” Martinez, 132 S. Ct. at 1318–19; see also

Trevino v. Thaler, 133 S. Ct. 1911, 1918 (2013) (noting that

Martinez may apply to a procedurally defaulted trial-phase

IAC claim if “the claim . . . was a ‘substantial’ claim [and]

the ‘cause’ consisted of there being ‘no counsel’ or only

‘ineffective’ counsel during the state collateral review

proceeding” (quoting Martinez, 132 S. Ct. at 1320)).2 A

meritorious Strickland claim requires a showing of both

2

This exception applies only if, “under state law, claims of ineffective

assistance of trial counsel must be raised in an initial-review collateral

proceeding,” Martinez, 132 S. Ct. at 1320, or if the state’s procedural

system “does not offer most defendants a meaningful opportunity” to

present such claims on direct appeal, Trevino, 133 S. Ct. at 1921. In

Martinez, the Supreme Court made clear that Arizona’s procedural rules

fall within the first of those categories.

DETRICH V. RYAN 59

deficient performance and prejudice. 466 U.S. at 687.3 The

majority and I agree on that much.

I strongly disagree, though, with the majority’s assertion

that any “standard practice” warrants a remand to the district

court for application of those purely legal principles to the

record that is already before us. Maj. op. at 21. We

frequently decide legal issues that an intervening decision of

the Supreme Court has cast in a different light, at least when

“all of the facts relevant to our analysis are fully set forth in

the record.” Phelps v. Alameida, 569 F.3d 1120, 1135 (9th

3

The Martinez framework results in a potential overlap of analysis

because the merits of the underlying guilt-phase IAC claim are relevant to

both prongs. Thus, if the claim is not “substantial” under the second

prong, it is difficult to see how post-conviction counsel’s failure to raise

it could be prejudicial under the Strickland analysis required by the first

prong. This overlap becomes more prominent where, as here, there is

post-conviction counsel but counsel is alleged to be ineffective.

The majority’s answer to this overlap is to hold that a petitioner “need

not show actual prejudice resulting from his PCR counsel’s deficient

performance, over and above his required showing that the trial-counsel

IAC claim be ‘substantial’ under the first Martinez requirement.” Maj. op.

at 15. But the Supreme Court has never suggested that the prejudice

prong of Strickland has a unique meaning in the context of the second

Martinez requirement. The majority relies, oddly, on Justice Breyer’s

non-precedential statement respecting the denial of certiorari in Gallow v.

Cooper, 133 S. Ct. 2730 (2013). Only two justices joined that statement,

so it is not a binding legal authority. And, on its own terms, the statement

is irrelevant. Gallow concerned egregious ineffectiveness by trial counsel;

Justice Breyer merely observed that a failure to present admissible

evidence on such a claim arguably establishes cause because it might have

resulted in the procedural default of that claim—that is, in prejudice. And

Justice Breyer asserted only that the Fifth Circuit might have erred by

refusing to consider evidence on that Martinez claim on account of Cullen

v. Pinholster, 131 S. Ct. 1388 (2011). That issue is distinct from any

presented here.

60 DETRICH V. RYAN

Cir. 2009). Indeed, we have done so when applying Martinez

before. See Miles v. Ryan, 713 F.3d 477, 494–95 (9th Cir.

2013) (applying Martinez, which was decided during the

appeal, to a capital habeas petitioner’s claims).4 Here, the

issue—whether Petitioner’s claims are procedurally

defaulted—is a legal one, see Cooper v. Neven, 641 F.3d 322,

326 (9th Cir.) (noting de novo review of procedural default

determination), cert. denied, 132 S. Ct. 558 (2011), albeit one

that requires our reconsideration after Martinez. There is no

reason not to decide the issue unless further evidentiary

development is necessary. It is not.

Judicial economy and the Antiterrorism and Effective

Death Penalty Act of 1996’s (“AEDPA’s”) policy of reducing

delay in habeas proceedings also favor reaching a decision

now. See Woodford v. Garceau, 538 U.S. 202, 206 (2003)

(“Congress enacted AEDPA to reduce delays in the execution

of state and federal criminal sentences, particularly in capital

cases.” (citing Williams v. Taylor, 529 U.S. 362, 386

(2000))). We have many capital cases currently on appeal in

which the petitioners have filed motions under Martinez. In

the interest of avoiding needless delay, we should first assess

4

We have done the same thing in an array of other contexts. See, e.g.,

Hedlund v. Educ. Res. Inst. Inc., 718 F.3d 848, 853–54 (9th Cir. 2013)

(“Because this court is in as good a position as the district court [to do so],

it independently reviews the bankruptcy court’s decision.” (internal

quotation marks omitted)); United States v. Song Ja Cha, 597 F.3d 995,

1006–07 (9th Cir. 2010) (denying the government’s request for a remand

to allow the district court to apply new Supreme Court precedent to purely

“legal determinations” regarding whether a police seizure warranted

evidentiary suppression); Blanchard v. Morton Sch. Dist., 509 F.3d 934,

938 (9th Cir. 2007) (affirming a judgment that had been incorrect at the

time decided, because an intervening Supreme Court decision provided an

alternate ground to affirm).

DETRICH V. RYAN 61

whether Martinez applies, before mechanically remanding

such cases.

Furthermore, in this case, the majority’s over-broad

remand will extend that delay beyond what is either necessary

or equitable. The majority sees potential merit in four claims

but, as I will discuss below, two of those claims were not

explicitly raised in Petitioner’s motion. On remand, is the

district court to consider those waived claims, and others like

them? And what about the claims that are properly before us

but that even the majority seems not to view as potentially

meritorious?

3. Petitioner’s Martinez Claims

Petitioner’s motion for remand raises ten claims of guilt-

phase IAC: (1) failure to interview and call some witnesses;

(2) failure to investigate co-defendant Alan Charlton

adequately; (3) failure to interview Phillip Shell, to call him

to testify at trial, or to have his testimony from Petitioner’s

first trial read to the jury; (4) failure to participate actively in

voir dire; (5) failure to have the peremptory strike process

recorded; (6) failure to rehabilitate jurors regarding issues

about the death penalty; (7) failure to conduct independent

forensic testing or consult an independent pathologist; (8)

failure to present Petitioner’s misidentification defense

effectively; (9) failure to object to prosecutorial vouching;

and (10) cumulative error.5

5

The motion also states, in a footnote, that it “incorporates by reference”

all additional trial-counsel IAC claims that are contained in its amended

habeas petition and traverse before the district court. There are dozens of

such claims. This bare, passing reference is inadequate to bring an issue

properly before us. See United States v. Kama, 394 F.3d 1236, 1238 (9th

62 DETRICH V. RYAN

The majority remands the case with respect to all claims

that Petitioner has raised. It does so on account of four

claims that it views as potentially meritorious. There are

three errors in the majority’s approach. First, two of the

claims that it cites were not specifically raised in Petitioner’s

motion and are, therefore, not properly before us. Second,

one of those claims, as well as three other claims that the

majority does not discuss, were decided on the merits in state

court and therefore are not subject to the Martinez exception

to procedural default. Finally, even assuming that all the

claims that Petitioner raises could be considered under

Martinez, none of them is “substantial,” and a remand is

therefore a futile gesture. I will explain each of those

problems in more detail.

a. Some of Petitioner’s Claims Are Waived

Petitioner’s IAC claims arising from trial counsel’s

alleged failure to interview and call as witnesses Darci and

Donald Bell, and counsel’s alleged failure to interview and

cross-examine William Carbonell with a prior inconsistent

statement, were waived. Issues that are not “specifically and

distinctly” argued in an opening brief are waived. United

States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005). Neither

Carbonell nor the Bells are mentioned in Petitioner’s brief in

support of his motion.6 The majority emphasizes that

Cir. 2005) (“Generally, an issue is waived when the appellant does not

specifically and distinctly argue the issue in his or her opening brief.”).

6

The claim regarding the Bells does appear in Petitioner’s reply brief,

but issues raised for the first time in a reply brief are also waived. United

States v. Anekwu, 695 F.3d 967, 985 (9th Cir. 2012), cert. denied, 133 S.

Ct. 2379 (2013). The claim related to Carbonell appears nowhere in

DETRICH V. RYAN 63

Petitioner has moved for us to remand his claims to the

district court, not to determine the substantiality of those

claims ourselves. But, with respect to his lawyer’s alleged

failure to investigate the Bells and to interview and to cross-

examine Carbonell, Petitioner has not properly asked even for

a remand.

I would not reach, even in part, issues that Petitioner

simply has not raised properly for our consideration. The

majority appears to view the Bell and Carbonell claims as

having been raised by Petitioner’s footnoted “incorporation

by reference” of filings in the district court. As I have

explained, that passing reference to 59 pages of argument

relating to a scattershot of dozens of claims is not a

“specific[] and distinct[]” argument in support of any specific

claim. Kama, 394 F.3d at 1238. The majority excuses

Petitioner’s waiver because it views the motion’s vague

“summary” of Petitioner’s claims as sufficient for these

purposes. I do not agree. The substantial delay and expense

of a new round of litigation on remand warrant a specific and

substantial showing that at least one Martinez claim requires

further fact-finding.

b. Some of Petitioner’s Claims Were Decided on

the Merits

Second, Petitioner seeks to revive claims that he raised in

his first petition for post-conviction relief (“PCR”) and that

the state courts decided on the merits. Of Petitioner’s

Martinez claims that are not waived, four appeared in his first

PCR petition. Those are counsel’s alleged failure to (1)

Petitioner’s briefs in support of the remand motion—it appears only in

Petitioner’s amended habeas petition.

64 DETRICH V. RYAN

obtain independent forensic testing or an independent

pathologist, (2) bring witness Shell to court to testify, (3)

rehabilitate jurors regarding death-penalty qualification, and

(4) object to alleged prosecutorial vouching. Those claims

were all rejected on the merits in the Pima County Superior

Court’s decision on the first PCR petition. The holding of

Martinez—that procedural default of a guilt-phase IAC claim

can be excused if it was due to PCR counsel’s

ineffectiveness—has no application when the claim was not

defaulted. Rather, claims that the state courts decided on the

merits must be analyzed under the deferential framework of

28 U.S.C. § 2254(d) and the evidentiary bar set forth in

Cullen v. Pinholster, 131 S. Ct. 1388, 1400 (2011).

c. None of Petitioner’s Claims Is Substantial

Even if those barriers to considering some claims are

ignored, none of Petitioner’s underlying guilt-phase IAC

claims is substantial, so Martinez cannot excuse their default.

Few, if any, of the alleged trial-counsel errors fell “below an

objective standard of reasonableness,” the standard for

deficient performance. Strickland. 466 U.S. at 687–88. And

none of them establishes prejudice, which requires that “[t]he

defendant . . . show that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694; see also

Lopez v. Ryan, 678 F.3d 1131, 1139 (9th Cir.) (concluding

that a claim was not substantial under Martinez where the

petitioner could not show a reasonable probability of

prejudice under Strickland), cert. denied, 133 S. Ct. 55

(2012).

Before reviewing the substantiality of each individual

claim, I note that all of Petitioner’s claims must be viewed in

DETRICH V. RYAN 65

light of three over-arching points. First, I have reviewed the

record and found no indication that Petitioner’s PCR counsel

was ineffective. Counsel conducted some independent

investigation (obtaining, for example, a detailed

psychological report that is central to the sentencing issue in

this appeal) and requested funds for further investigation.

The PCR petition raised many of the claims that Petitioner

continues to assert as meritorious today. Thus, I doubt that

Petitioner can satisfy the first prong of the Martinez analysis.

Next, with respect to the second prong, the record shows

that Petitioner’s trial counsel did a good job of trying this

case but that the evidence at trial prevented him from

obtaining a different result. For example, counsel developed

and presented to the jury a coherent and plausible theory of

defense, actively cross-examined the prosecution’s witnesses,

and gave a forceful opening statement and closing argument.

Indeed, Petitioner’s counsel effectively presented to the judge

and jury much of the evidence that the majority cites in

support of the view that Petitioner’s co-defendant may have

been the killer. The majority’s fresh assessment of that

evidence accordingly says little about whether Petitioner’s

trial counsel was deficient. Which brings me to my third

point.

The evidence of Petitioner’s guilt as the killer—detailed

above—was powerful. The jury’s verdict and the sentencing

court’s determinations appear to reflect their reasonable

assessments of the evidence at trial, not any ineffectiveness

on the part of counsel.7 Petitioner accordingly faces a

7

The majority asserts that the jury’s split verdict is strong evidence that

“only nine jurors were convinced that Detrich, rather than Charlton, was

the actual killer.” Maj. op. at 5. That assertion is speculative. The three

66 DETRICH V. RYAN

difficult task in showing that his underlying IAC claims have

merit under the prejudice prong of the Strickland analysis.

Claim 1: Failure to Investigate Witnesses Adequately

Petitioner first claims that his counsel’s preparation for

trial was inadequate because counsel “failed to locate or

interview critical eyewitnesses.” The remand motion

describes which witnesses Petitioner’s counsel should have

called as “eyewitnesses at the crime scene,” “witnesses who

knew the victim and had observed her the evening of the

crime,” and “the investigating police officers.”

With respect to the victim’s daughters (who were in the

victim’s home when Petitioner threatened and sexually

abused her), Winsett (who was also there), Carbonell (the

person who saw Petitioner covered in blood and to whom

Petitioner confessed), and three police detectives, little or no

prejudice resulted from counsel’s failure to interview them

because those witnesses testified at trial and were effectively

cross-examined by defense counsel.8 Petitioner fails to

jurors who voted for felony murder, rather than premeditated murder, did

not necessarily find that Charlton was the killer. Their votes could reflect

a conclusion that Petitioner killed the victim in the course of kidnapping

her, but that the prosecution failed to prove premeditation. The prosecutor

in fact told the jury, in closing, that it could convict Petitioner of felony

murder on this alternative theory. Thus, the three jurors’ votes are

ambiguous. In the face of this ambiguity, the split verdict is not evidence,

strong or otherwise, about which alternative persuaded the three jurors.

8

Moreover, under Arizona law, the children of a murder victim may

refuse to be interviewed or deposed by the defendant, Ariz. Const. art. II,

§ 2.1(A)(5); Ariz. Rev. Stat. § 13-4401(19), so counsel’s decision not to

interview the victim’s daughters is unsurprising and certainly not

deficient.

DETRICH V. RYAN 67

explain how further investigation of those witnesses would

have improved his defense or to identify other specific

witnesses that counsel should have interviewed. Although

Petitioner’s amended habeas petition named 21 other

potential witnesses, any claim arising from those witnesses is,

as I have explained, waived.

Because the majority gives special consideration to two

of the waived claims, I will address why those claims, even

if they had been raised properly, would not warrant a remand

under Martinez. The first such claim is the alleged failure to

interview and call as witnesses Darci and Donald Bell. With

respect to those witnesses, Petitioner does not establish

prejudice. Darci Bell is Petitioner’s sister, so the jury would

have considered her (and her husband’s) testimony in light of

that obvious bias. And Petitioner has not demonstrated that

the Bells’ testimony, even if the jury credited it, would have

made the other trial witnesses’ accounts less probable. In a

declaration dated December 13, 2004, some 15 years after the

events in question, Darci stated that Charlton dropped

Petitioner off at her house on the morning after the crime and

that Petitioner’s bib overalls were not covered in blood that

morning. That account does not contradict Charlton’s and

Carbonell’s testimony that Petitioner was covered in blood at

an earlier time. Darci does not claim to have seen Petitioner

during the same time frame when the events to which

Charlton and Carbonell testified occurred, nor does she state

that Petitioner owned only a single pair of overalls.

The majority also focuses on another waived claim that

relates to counsel’s investigation of witnesses: the alleged

failure, during cross-examination, to probe two alleged

inconsistencies in Carbonell’s account of the crime. This

claim also lacks merit. The first alleged inconsistency is that

68 DETRICH V. RYAN

Carbonell initially testified that both Petitioner and Charlton

were “covered with blood” when they arrived at Carbonell’s

house but later testified that Petitioner had more blood on him

than Charlton did. Those statements are consistent and, in

any event, Petitioner’s counsel confronted Carbonell with the

prior statement at trial.

Second, Petitioner asserts that Carbonell testified that

Petitioner “told me he killed [the victim]” but that he had

earlier stated only that he had “surmised” that Petitioner

personally killed the victim from Petitioner’s statement that

Charlton was driving at the time. The majority emphasizes

that Carbonell inferred Petitioner’s conduct in part from what

Charlton said, but Carbonell also referred to Petitioner’s own

statements. Carbonell’s statement was, “[Detrich] didn’t say

that he killed the girl. But, he said [Charlton] was driving the

car. So, I . . . surmised that . . . he had been the one that cut

the girl. ‘Cause [Charlton] told me later on[] that he did cut

the girl up.” (Emphasis added.) Any inconsistency between

that statement and Carbonell’s testimony at trial is negligible

because the earlier statement clearly shows that Carbonell

inferred Petitioner’s conduct, at least in part, from what

Petitioner said. It was objectively reasonable for Petitioner’s

counsel to avoid further discussion of this apparent

confession during the cross-examination of Carbonell.

Claim 2: Failure to Investigate Charlton Adequately

Petitioner’s second claim is that his lawyer failed to

investigate co-defendant Charlton—specifically, to uncover

his racism. The majority views this claim as potentially

“substantial.”

DETRICH V. RYAN 69

At trial, Petitioner’s counsel vigorously sought to

demonstrate that Charlton’s account of the murder was a lie.

To that end, the lawyer noted (among other factors)

Charlton’s motive to assist the government under his

favorable plea agreement, inconsistencies in his accounts of

the night of the crime, his decision to alter his personal

appearance after the incident, and his motives to kill the

victim himself. Those theoretical motives included

Charlton’s obsession with martial arts and violence and, as

relevant here, his racism; because the victim was black,

Charlton, as a racist white man, had a motive to kill her that

Petitioner did not necessarily have.9 Two witnesses—

Deborah Charlton (Charlton’s wife) and Phillip Shell

(Charlton’s cellmate in jail)—testified to Charlton’s racism.

Deborah Charlton testified that her husband “didn’t like

[black people] at all,” that “[h]e called them mud ducks,” that

“he made his opinion known real well,” and that he was

violent, obsessed with knives, and “partial to” martial arts.

Shell, whose testimony from Petitioner’s first trial was read

to the jury, testified that Charlton called Petitioner a “Nigger

lover,” referred to the victim as “‘[t]hat black bitch,’ things

like that,” and that he told Shell that he, not Petitioner, killed

the victim because he became angry when he saw Petitioner

kissing a black woman.

Given that counsel introduced ample evidence of

Charlton’s racism and that it was only one piece of a much

9

Interestingly, in the first PCR proceeding, Petitioner’s PCR counsel

acknowledged that trial counsel had pursued several avenues designed to

show that Charlton was lying, including evidence that Charlton and

Petitioner were together the entire evening of the murder, that the knife

Charlton identified as the murder weapon could not have killed the victim,

that Charlton had previously lived near the site where the victim’s body

was found, and that Charlton hated blacks, while Petitioner did not.

70 DETRICH V. RYAN

larger strategy to impeach Charlton’s testimony, neither

deficient performance nor prejudice can be attributed to

counsel’s failure to produce more such evidence.

Claim 3: Failure to Interview Shell

Petitioner’s next claim is that his lawyer was ineffective

for “fail[ing] to interview, call as a witness, or introduce the

prior testimony of Phillip Shell.”10 As I have explained, the

claim that counsel should have called Shell as a live witness

was explicitly considered on the merits by the state court after

Petitioner raised it during the initial-review collateral

proceeding. Martinez is therefore inapposite.11

Even if it were subject to Martinez, Petitioner’s claim that

counsel was ineffective in failing to call Shell as a live

witness is factually misleading and lacks merit. Shell was

detained as a material witness, and he testified in the first trial

in which Petitioner was convicted. The record shows that

defense counsel for Petitioner’s later trial (the allegedly

ineffective lawyer) hired an investigator to locate Shell, who

was out of state, spoke with him repeatedly, and attempted to

call him as a witness. When doing so proved impracticable,

defense counsel instead introduced Shell’s prior sworn

10

The allegation, as one part of this claim, that Petitioner’s trial counsel

failed to introduce Shell’s prior testimony at all is plainly contradicted by

the trial record: Shell’s prior testimony was read to the jury at trial.

11

Although the state court transcript referred to the witness as “William

Schell,” the record leaves no doubt that the ruling on the merits concerned

Phillip Shell and that this reference was just a mistake. The mistake may

have come about because a Mr. Williams read Shell’s testimony at the

final trial.

DETRICH V. RYAN 71

testimony, which was read to the jury. That decision did not

constitute deficient performance.

Claims 4, 5, and 6: Alleged Errors During Voir Dire

Petitioner raises three claims related to his lawyer’s

performance during voir dire. He alleges that his lawyer was

ineffective for failing to “conduct adequate voir dire,”

“request recording of the peremptory strike process,” and

“rehabilitate jurors regarding issues about the death penalty.”

As I have explained, the state courts have decided

Petitioner’s “failure to rehabilitate” claim on the merits, and

it therefore is not subject to Martinez. The remaining two of

these claims are largely contradicted by the record. Defense

counsel participated actively in voir dire, particularly in

relation to jurors’ potential biases regarding the death

sentence. He submitted a jury questionnaire that included

questions on racial bias and jurors’ views on the death

penalty, objected to “death qualification” questions,

acknowledged the “rehabilitation” of a prospective juror,

raised questions for the court to ask particular jurors, and

moved to excuse several prospective jurors for cause.

Moreover, a record showing each lawyer’s use of peremptory

strikes was kept. Without any explanation as to how or why

trial counsel should have requested additional records,

Petitioner’s “recording” claim fails to show deficient

performance or prejudice.12

12

More generally, Petitioner alleges no substantive error during voir dire

or any jury bias that may have prejudiced his trial. For example, he does

not assert that a Batson challenge should have been raised, and the failure

to object during voir dire does not establish a Strickland claim without a

showing of prejudice. See Carrera v. Ayers, 699 F.3d 1104, 1107 (9th

72 DETRICH V. RYAN

Claim 7: Failure to Conduct Forensic Testing

Petitioner’s seventh claim is that his lawyer should have

conducted independent forensic testing on evidence collected

from the scenes of the crime (the victim’s home and

Charlton’s car).

The majority assumes that Petitioner’s claim here is

distinct from the forensic testing claim that, as noted above,

the state court decided on the merits. Here, Petitioner asserts

that his counsel was ineffective for failing to obtain

independent forensic testing of evidence that includes hairs,

a knife, and a needle. The district court treated that claim as

procedurally defaulted because it viewed Petitioner’s claim

before the state court as limited to forensic testing of blood

and blood pattern evidence. But, before the state court,

Petitioner argued that his counsel was deficient for failing to

“obtain all reports and review all physical evidence.”

(Emphases added.) He argued that available blood pattern

evidence contradicted Charlton’s testimony and that, for that

reason, counsel should have investigated “the physical

evidence” more. (Emphasis added.) He acknowledged that

he could not, at the PCR stage and without further funding,

identify specifically what other forensic evidence would have

benefitted his case, but his claim as to what counsel should

Cir. 2012) (en banc) (rejecting a claim of ineffective counsel arising from

a lawyer’s decision not to object during voir dire, where the petitioner

made no showing that the underlying Wheeler claim had some merit), cert.

denied, 133 S. Ct. 2039 (2013). At most, he merely alleges, implicitly,

that counsel should have worked harder and obtained a more sympathetic

jury. That is not a substantial Strickland claim. See Hovey v. Ayers,

458 F.3d 892, 910 (9th Cir. 2006) (rejecting claim of deficient

performance premised on counsel’s general failure to participate actively

in voir dire).

DETRICH V. RYAN 73

have investigated extended to all forensic evidence. The state

court’s denial of Petitioner’s claim for failure to investigate

“the forensic evidence at trial” was not limited to one type of

evidence, and its ruling on the merits renders Martinez

inapplicable here.

Assuming, though, that Petitioner’s claims are “new” for

these purposes, they nevertheless lack merit because

Petitioner cannot show prejudice. The state did conduct

forensic tests of hairs and fingernails (as well as examinations

for fingerprints, blood, and semen in the car). To the extent

that those tests reached conclusive results, they provided

evidence that corroborated the percipient witnesses’

testimony against Petitioner.13 Billing records show that

Petitioner’s counsel interviewed the state’s forensic

pathologist, Dr. Thomas Henry, and forensic examiner, Dr.

Deborah Friedman; the decision not to hire an independent

investigator resulted neither from ignorance nor from a

failure to inquire into its necessity. Petitioner’s counsel

effectively cross-examined Dr. Henry at trial. Furthermore,

the state’s forensic evidence did not stand alone. It

complemented extensive testimonial evidence: that Petitioner

entered the car on the passenger side while Charlton drove,

that he killed the victim himself, that he was covered in blood

after the crime, and that he confessed to the murder shortly

afterward. Petitioner therefore cannot make a substantial

13

The majority makes the far-fetched assertion that the absence of

semen in the car “reinforces” Shell’s testimony that Petitioner kissed the

victim and that Charlton killed her. That is not a logical inference.

Evidence of semen was in no way necessary to the prosecution’s theory

of the case. Nor is the absence of semen affirmative evidence of kissing

or of any other relevant fact. This category of forensic evidence is

therefore equally consistent with both accounts of the crime.

74 DETRICH V. RYAN

showing of either deficient performance or prejudice with

respect to that forensic evidence.

Neither does Petitioner show deficiency or prejudice with

respect to the alleged murder weapon and the needle found at

the victim’s home. At trial, Petitioner’s counsel developed a

theory that the evidence could not prove that a particular

knife (there were several available to Petitioner) was the

murder weapon. Again, the lawyer made a reasonable

judgment that the opinion of the state’s pathologist was

sufficient to support that theory. The jury either found that it

could identify the knife or concluded that identifying which

of the available knives Petitioner actually used was not

important. As to the needle, Petitioner argued before the state

courts that forensic analysis of the needle used for shooting

cocaine “would have revealed inconsistencies in the

testimonies.” But he does not explain what those

inconsistences would have been or how counsel’s failure to

reveal them caused prejudice to Petitioner.

Claim 8: Error Relating to Misidentification Defense

Petitioner’s eighth claim is that his trial lawyer

undermined his own misidentification defense by introducing

contrary evidence. This allegation is so vague—Petitioner

does not specify what evidence was allegedly introduced in

error—that it cannot present a substantial Strickland claim.

Claim 9: Failure to Object to Prosecutorial Vouching

Petitioner’s ninth claim is that his lawyer failed to object

to prosecutorial vouching in support of Charlton’s testimony.

In his second petition for post-conviction review, Petitioner

asserted that the state vouched for Charlton by reviewing his

DETRICH V. RYAN 75

testimony during closing argument. That type of reference

during argument is not vouching. See United States v.

Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993) (holding that

vouching consists of “assurances of the witness’s veracity, or

suggesting that information not presented to the jury supports

the witness’s testimony”). The decision of Petitioner’s

counsel not to challenge the statements at issue therefore was

not objectively unreasonable.

Claim 10: Cumulative Error

Petitioner’s final claim is that the foregoing errors,

cumulatively, amounted to ineffectiveness. Most of

Petitioner’s claims rely on misleading characterizations of the

factual record that, even if true, would not establish

significant prejudice. Taken cumulatively, they still are not

substantial.

4. Conclusion

In conclusion, some of Petitioner’s Martinez claims are

not properly before us because Petitioner did not separately

identify them in his motion, and some are not properly

Martinez claims because they were not procedurally

defaulted. None of the claims at issue presents a potentially

successful Strickland claim. For that reason, the claims are

not “substantial,” and Martinez does not excuse their default.

In Martinez, the Supreme Court described its new rule as a

“narrow exception” to the principle, set forth in Coleman v.

Thompson, 501 U.S. 722 (1991), that a lawyer’s ignorance or

inadvertence in a post-conviction proceeding does not qualify

as “cause” to excuse a procedural default. Martinez, 132 S.

Ct. at 1315. That narrow exception is not intended to permit

relitigation of guilt-phase proceedings on unsupported or

76 DETRICH V. RYAN

legally frivolous grounds. Because Petitioner’s newly raised

claims either are not properly raised or lack merit, or both, I

would deny the remand motion.

B. Claim of Ineffective Assistance of Counsel at

Sentencing

I also disagree with the majority’s decision not to decide

the sentencing issue now. That issue was decided below and

has been briefed and argued on appeal, twice—once to the

three-judge panel and next to the en banc court. Nothing

remains for us to do but decide it. To be sure,

notwithstanding my view of their lack of merit, the district

court could in theory grant relief on Petitioner’s guilt-phase

IAC claims on remand. But if it does not, Petitioner’s appeal

on the sentencing issue will return to us and require a

decision. It will be the same issue, with the same relevant

facts, when it returns, so we should decide it while we are

familiar with it and avoid the redundant proceedings that will

likely be required later. Even if the district court were to

grant relief on Petitioner’s guilt-phase claims, we will have

lost nothing but a few pages of text in making a decision. For

the following reasons, I would affirm the district court’s

denial of habeas relief on this claim.

1. Facts Relevant to Sentencing Claim

At sentencing, the prosecution sought the death penalty.

It argued that the evidence produced at trial showed that the

crime was “especially cruel, heinous, or depraved,” an

aggravating circumstance under then section 13-703(F)(6) of

the Arizona Revised Statutes. Petitioner submitted a

sentencing memorandum proposing five mitigating

circumstances relating to Petitioner’s personal background,

DETRICH V. RYAN 77

his criminal history, his remorse, his capacity to appreciate

the wrongfulness of his conduct at the time of the crime, and

the relative sentence received by Charlton. He also submitted

a letter from his sister that described his background of

childhood abuse and problems with drugs and alcohol.

The trial court held a two-day aggravation/mitigation

hearing. Petitioner’s lawyer argued (1) that Petitioner was

not death-eligible under Tison v. Arizona, 481 U.S. 137

(1987), because he did not personally commit the murder; (2)

that the crime was not especially cruel, heinous, or depraved;

and (3) that the mitigating circumstances warranted leniency.

The evidence before the court at the hearing included a

1985 report by psychologist Dr. Larry Zimmerman, a 1985

clinical evaluation approved by psychiatrist Dr. George Penn,

and a 1991 report by psychologist Dr. Catherine Boyer.

Together, these studies revealed a long history of childhood

abuse, alcoholism, and physical and emotional trauma. They

noted that Petitioner suffered from emotional problems

related to abuse at the hands of his stepmother and discussed

his anger toward parental figures. The 1985 reports noted

that Petitioner engaged in “severe” drug and alcohol abuse in

his past, and the 1991 report explained its effect on his

behavior, observing that “if [Petitioner] is drinking and

someone makes him angry, he begins to escalate in his anger

[and he] feels that he has approached a trigger point.” The

later report recognized a connection between Petitioner’s

alcoholism and his potential for violence, citing an incident

in which Petitioner, while drunk, threatened to kill his wife.

The sentencing court also reviewed several letters from

Petitioner’s sister, in which she described Petitioner’s

childhood and lifelong alcohol abuse. The letters explained

78 DETRICH V. RYAN

that Petitioner’s stepmother abused him physically and

verbally, that his stepfather encouraged Petitioner to engage

in bouts of heavy drinking beginning by age thirteen or

younger, and that Petitioner struggled with alcoholism

throughout his life.

After reviewing those documents, and relying on the

evidence and testimony at trial, the sentencing court found

that Petitioner personally committed the murder. As

aggravating factors, the court found that the murder was

especially cruel because the victim was conscious throughout

much of the crime, endured extreme physical pain, and

suffered extreme mental distress. The court ruled that the

murder was heinous and depraved because Petitioner relished

the murder and inflicted gratuitous violence well beyond that

needed to cause death and because the victim was helpless,

and the crime was senseless. The court found that there were

five mitigating circumstances: Petitioner’s capacity to

appreciate the wrongfulness of his conduct or to conform his

conduct to the requirements of law was significantly impaired

by alcohol and drugs at the time of the crime; Petitioner

comes from a background of physical and mental abuse;

Petitioner felt some remorse for the murder; Petitioner did not

have prior convictions for crimes of violence; and Petitioner

had a longstanding history of alcohol and drug abuse. After

weighing these mitigating factors against the aggravating

circumstance, the court imposed a sentence of death for the

murder and twenty-one years in prison for the kidnapping.

Petitioner sought post-conviction relief in state court,

alleging (as relevant here) ineffective assistance of counsel at

sentencing. Petitioner’s claims of ineffectiveness at

sentencing included an allegation that his lawyer did not

adequately investigate and present mitigation evidence.

DETRICH V. RYAN 79

Petitioner hired a neuropsychological expert, Dr. Robert

Briggs, who produced a report on Petitioner’s background

and mental health. Petitioner’s family members supplied

statements concerning details of Petitioner’s background,

which included severe childhood abuse (being chained up,

pushed down stairs, held under water in the bathtub, and

encouraged to drink alcohol and use drugs as a pre-teen) and

life-long problems with alcohol and drugs. The state post-

conviction court held that Petitioner failed to establish

ineffective assistance under Strickland v. Washington,

466 U.S. 668, 687 (1984), because he showed neither

deficient performance nor prejudice. The court reasoned that

“Dr. Briggs’ report was not significantly different from the

[1991] report considered” at the sentencing hearing and that

“additional evidence of Petitioner’s dysfunctional childhood

would have been merely cumulative and was not ‘newly

discovered.’” For that reason, the court concluded that there

was no “reasonable probability” that, had Petitioner’s counsel

uncovered and presented additional evidence regarding

Petitioner’s background, doing so would have resulted in a

different sentence. The Arizona Supreme Court denied

review.

2. Standard of Review

We review de novo a district court’s denial of habeas

corpus relief. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th

Cir. 2004). We review a district court’s factual findings for

clear error. Brown v. Ornoski, 503 F.3d 1006, 1010 (9th Cir.

2007).

Our review of the underlying state court decisions is

governed by AEDPA. Brown, 503 F.3d at 1010. Under

AEDPA, we must defer to a state court’s decision with

80 DETRICH V. RYAN

respect to any claim that was adjudicated on the merits unless

the adjudication of the claim:

(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). Our review “is limited to the record that

was before the state court that adjudicated the claim on the

merits.” Pinholster, 131 S. Ct. at 1398, 1400 n.7.

Where, as here, the factual determinations of the state

court are not in dispute, the state court’s decisions as to

whether those facts amount to deficient performance or

prejudice under the Strickland standard are applications of

federal law that we review under § 2254(d)(1). See

Pinholster, 131 S. Ct. at 1411 (applying § 2254(d)(1)’s

“unreasonable application of [Supreme Court] precedent”

standard to a state court’s determinations on both deficiency

and prejudice). Under § 2254(d)(1), a state court’s decision

involves an “unreasonable application”of clearly established

federal law if it “identifies the correct governing legal

principle from [the Supreme Court’s] decisions but

unreasonably applies that principle to the facts of the

prisoner’s case.” Holland v. Jackson, 542 U.S. 649, 652

(2004) (per curiam) (internal quotation marks omitted).

DETRICH V. RYAN 81

Our review of a state court’s denial of a claim of

ineffective assistance of counsel is “doubly deferential,” in

that the petitioner must show that it was unreasonable for the

state court to conclude both that he had not overcome the

strong presumption of competence and that he had failed to

undermine confidence in the outcome of the state court

proceeding. Pinholster, 131 S. Ct. at 1403 (internal quotation

marks omitted). We apply this deferential standard to review

the state court’s last reasoned decision. Ylst v. Nunnemaker,

501 U.S. 797, 803–04 (1991).

3. Discussion

I would not reach the deficient-performance prong of the

Strickland analysis because Petitioner cannot establish that

his sentencing counsel’s alleged error resulted in prejudice.

In assessing prejudice with respect to a capital sentence, our

inquiry is “whether there is a reasonable probability that,

absent the errors, the sentencer . . . would have concluded that

the balance of aggravating and mitigating circumstances did

not warrant death.” Strickland, 466 U.S. at 695. We

“reweigh the evidence in aggravation against the totality of

available mitigating evidence.” Wiggins v. Smith, 539 U.S.

510, 534 (2003).

The Arizona Supreme Court found one aggravating

circumstance: that the crime was “especially heinous, cruel,

or depraved” within the meaning of section 13-703(F)(6) of

the Arizona Revised Statutes.14 Detrich II, 932 P.2d at

14

Under applicable Arizona case law, the (F)(6) statutory factor is

assessed by examining “the entire murder transaction and not simply the

final act that killed the victim.” State v. Lavers, 814 P.2d 333, 350 (Ariz.

1991). A murder is “cruel” for these purposes if the victim consciously

82 DETRICH V. RYAN

1338–39. The court concluded that the murder was especially

“cruel” because the victim consciously suffered both mentally

and physically before she was killed. It found that she

suffered mentally when Petitioner held a knife to her neck,

threatened to kill her, and dragged her to Charlton’s car. Id.

at 1339. It noted that, physically, the victim suffered a slit

throat and forty knife injuries to her face, hands, chest, neck,

abdomen, and thigh. Id. at 1338–39. She also suffered blunt

force trauma injuries, including bruises on her nose, jaw, and

scalp, and scraping and tearing of the lining of her mouth. Id.

Evidence suggesting that she was conscious during some of

the attack included testimony that she “looked terrified” as

Petitioner forced her into the car, that the wounds on her

hands were consistent with “defensive-type injuries one

would sustain while trying to fend off an attacker,” and that

she responded to questions with a gurgling noise after her

throat was slit. Id. at 1338–39. The state court further found

that the crime was especially “heinous” and “depraved”

because of the gratuitous violence beyond that necessary to

cause death; because Petitioner relished in the murder, asking

Charlton if he “want[ed] a shot” at the dead body; because the

killing was senseless; and because the victim was helpless.

Id. at 1339.

suffered physical pain or mental distress. State v. Jimenez, 799 P.2d 785,

795 (Ariz. 1990). It is “heinous” or “depraved” if the defendant’s words

and acts show a state of mind that was “hatefully or shockingly evil” or

“marked by debasement, corruption, perversion or deterioration,”

respectively. State v. Fulminante, 778 P.2d 602, 621 (Ariz 1989) (internal

quotation marks omitted). Factors relevant to the latter inquiry include

“(1) whether defendant relished the murder; (2) whether defendant

inflicted gratuitous violence beyond that necessary to kill; (3) whether the

defendant mutilated the victim’s body; (4) whether the crime was

senseless; and (5) whether the victim was helpless.” State v. Lopez,

857 P.2d 1261, 1266 (Ariz. 1993).

DETRICH V. RYAN 83

The state court’s conclusion, from that evidence, that the

crime was especially cruel, heinous, and depraved, id. at

1339, is entitled to significant weight. Nothing before the

state post-conviction court alters the significance of these

facts or the state court’s conclusion that they constituted an

aggravating circumstance under section 13-703(F)(6).

As for mitigation, the sentencing court found that most of

the mitigating circumstances that Petitioner asserted were

present.15 As a statutory mitigating factor, the court found

that Petitioner’s intoxication at the time of the crime impaired

his capacity to appreciate the wrongfulness of his conduct or

conform it to the law. As non-statutory mitigating factors,

the sentencing court found that Petitioner felt some remorse

for the murder, lacked a history of violent crime, and came

from a background of mental and physical abuse. The

Arizona Supreme Court gave full consideration to these

mitigating factors and concluded that, “when balanced against

the circumstances constituting the sole aggravating factor, the

mitigating evidence is insufficient to warrant leniency.”

Detrich II, 932 P.2d at 1340.

The mitigation evidence on which the state court rested

that conclusion included substantial evidence of Petitioner’s

problems with drugs and alcohol and his background of

mental and physical abuse. Specifically, Petitioner’s sister

had submitted several letters in which she described the

physical and mental abuse that Petitioner experienced at the

15

Although the court did not consider Petitioner’s co-defendant’s

sentence of ten years, the disparity of sentences could not be a mitigating

factor under Arizona law because the co-defendant’s sentence resulted

from a plea agreement. Detrich II, 932 P.2d at 1339–40 (citing State v.

Stokley, 898 P.2d 454, 472 (Ariz. 1995)).

84 DETRICH V. RYAN

hands of his stepmother, as well as his history of heavy

drinking beginning by age thirteen or younger. The

sentencing court also considered three expert reports that

discussed the foregoing background and Petitioner’s

psychological state as an adult. Although both of the 1985

reports note that Petitioner suffered from certain emotional

characteristics—such as impulsivity, immaturity, poor

judgment, and low tolerance for frustration—both reports

stated that Petitioner did not suffer from a thought disorder or

from delusional thinking. The 1991 report confirms these

conclusions, noting that Petitioner did not exhibit any

symptoms of a major mental disorder or any other significant

psychiatric disturbance and that his thought processes were

logical and coherent.

In post-conviction review, Petitioner argued that

additional mitigation evidence regarding his traumatic

childhood and its effects on his mental health might have

resulted in a different sentence. But the additional evidence

regarding Petitioner’s mental health that he offered during

post-conviction review—the Briggs report—is not

significantly different from the reports that were already

before the sentencing court. Like the other examiners, Dr.

Briggs reviewed Petitioner’s history of childhood abuse and

dependence on alcohol and drugs and noted that Petitioner

experienced impulsivity and other emotional problems. Also

like the previous evaluators, Dr. Briggs uncovered no pattern

of cognitive dysfunction and determined that Petitioner’s

neurological functioning was within the normal range. Dr.

Briggs acknowledged that Petitioner appeared to suffer some

overall impairment of function, likely due to “an interaction

between his emotional state and his mild neuropsychological

deficits.” In the end, though, the Briggs report’s

characterization of Petitioner’s childhood, substance abuse

DETRICH V. RYAN 85

problems, and mental state is similar to the psychological and

psychiatric reports that the sentencing court considered.

Petitioner also presented additional letters from his family

detailing his abusive childhood and history of substance

abuse but, like the Briggs report, the letters essentially

duplicate material that the sentencing court had. Both the

letters from Petitioner’s family and the mental health

evaluations that were available to the sentencing court

detailed the same types of abuse and neglect that appear in

the new letters. Because that evidence is cumulative with

what the sentencing court considered, it does not establish a

reasonable probability that a better investigation and

presentation of Petitioner’s background would have resulted

in a different sentence. See Miles, 713 F.3d at 494–95

(finding that the addition, during post-conviction proceedings,

of cumulative mitigating evidence relating to social history

was insufficient to demonstrate ineffectiveness).

4. Conclusion

In sum, the state post-conviction court reasonably held

that there was no reasonable probability that, even if

Petitioner’s counsel had more fully investigated and

presented the available mitigation evidence, Petitioner would

have received a different sentence. Because the Arizona

Supreme Court reasonably held that Petitioner suffered no

prejudice within the meaning of Strickland, Petitioner’s claim

for habeas relief should be denied.