Michael Ray Hogan v. Jeremy Bean

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL RAY HOGAN, No. 18-99004

Petitioner-Appellant, D.C. No.

2:97-cv-00927-

v. JCM-PAL

JEREMY BEAN; ATTORNEY

GENERAL FOR THE STATE OF OPINION

NEVADA,

Respondents-Appellees.

Appeal from the United States District Court

for the District of Nevada

James C. Mahan, District Judge, Presiding

Argued and Submitted February 17, 2023

San Francisco, California

Filed June 4, 2025

Before: Marsha S. Berzon, Jay S. Bybee, and Consuelo M.

Callahan, Circuit Judges.

Opinion by Judge Bybee;

Partial Concurrence and Partial Dissent by Judge Callahan

2 HOGAN V. BEAN

SUMMARY*

Habeas Corpus / Death Penalty

The panel affirmed in part and reversed in part the

district court’s denial of death row inmate Michael Hogan’s

petition for a writ of habeas corpus, and remanded in part, in

an appeal in which Hogan challenged the district court’s

denial of relief on two certified issues and moved to expand

the certificate of appealability (COA) on five issues.

The case predates the effective date of the Antiterrorism

and Effective Death Penalty Act of 1996.

In the first certified claim (Claim 2(H)), Hogan alleged

ineffective assistance of counsel (IAC) based on trial

counsel’s failure to adequately investigate the legality and

underlying facts of his 1971 Iowa manslaughter conviction,

which Nevada used as an aggravating circumstance in his

penalty proceeding. Affirming the district court’s resolution

of this claim, the panel held that trial counsel’s decision to

focus on the Nevada challenge rather than a potential out-of-

jurisdiction challenge in the court of origin was a reasonable

strategic decision, and that Hogan cannot demonstrate

ineffective assistance for counsel’s failure to challenge the

Iowa conviction as a crime-of-violence aggravator under

Nevada law.

In the second certified claim, Hogan asserts that the

procedural default of his trial-court IAC claims (Claims

2(A)-(G) and (I)-(O)) should be excused under Martinez v.

*

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

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

HOGAN V. BEAN 3

Ryan, 56 U.S. 1 (2012). The panel disagreed with both of

the district court’s reasons for concluding that Hogan failed

to establish “cause” under Martinez. The panel disagreed

that Martinez categorically does not apply when the

procedural default is based on a state timeliness rule rather

than a state prohibition on successive petitions. The panel

also disagreed that Hogan’s failure to raise the trial IAC

claims in his second petition means that any ineffectiveness

of his initial-review post-conviction relief (PCR) counsel

cannot constitute “cause” for the procedural default. The

panel held that the district court erred in reading “cause” to

demand a showing, akin to the proximate cause required

applied in the realm of torts, of a causal connection between

one default and the state court’s refusal later to hear

successive petitions. Here, the failure of Hogan’s first PCR

counsel to raise the relevant trial IAC claims impeded

Hogan’s efforts to comply with Nevada’s procedural rule

that all postconviction claims must be brought in the first

PCR petition. That failure also impeded Hogan’s ability to

file a timely petition raising the trial IAC claims. The panel

thus concluded that Martinez relief may be available to

Hogan and that Claims 2(A)-(G) and (I)-(O) should be

remanded to the district court for further proceedings. The

panel set forth guidance for how the district court should

proceed on remand to determine whether it is appropriate to

reach the merits of those claims.

The panel granted Hogan’s motion to expand the COA

as to one issue: whether the district court erred in dismissing

as procedurally defaulted his challenges to the aggravating

circumstances (Claims 5(A) and (B)). The panel held that

Claims 5(A) and (B) were properly exhausted. The panel

also held that because Nevada’s procedural rules were not

consistently applied as of 1990, and so could not constitute

4 HOGAN V. BEAN

an adequate state ground, any procedural default in

1993 does not bar this court’s review of the

merits. Addressing the merits, the panel (1) held that

Hogan’s direct challenge to the Iowa conviction is not

cognizable; (2) could discern no evidence that the Nevada

Supreme Court’s analysis—in rejecting Hogan’s argument

that he did not knowingly create a great risk of death to more

than one person, as required under NRS § 200.033(3)—

sought to avoid federal review; and (3) rejected Hogan’s

challenge to this aggravating circumstance as

unconstitutionally vague.

The panel declined to expand the COA to cover four

other issues.

Judge Callahan concurred in part and dissented in

part. She dissented from the opinion’s assertion that

Hogan’s failure to allege ineffective assistance of trial

counsel until his third state PCR petition may be excused

under Martinez. She wrote that the narrow exception set

forth in Martinez only excuses a procedural default based on

the alleged IAC of post-conviction counsel in a defendant’s

initial state PCR proceeding. The Martinez exception to the

general rule that a prisoner does not have a constitutional

right to counsel in state postconviction proceedings does not

cover Hogan’s case—or any case—where trial counsel IAC

is not raised until a third or subsequent state PCR

proceeding.

HOGAN V. BEAN 5

COUNSEL

Robert Fitzgerald and Brad D. Levenson, Assistant Federal

Public Defenders; Rene L. Valladares, Federal Public

Defender; Federal Public Defender for the District of

Nevada, Las Vegas, Nevada; for Petitioner-Appellant.

Matthew S. Johnson (argued), Deputy Attorney General,

Nevada Office of the Attorney General, Carson City,

Nevada; Erica Berrett and Michael Bongard, Deputy

Attorneys General; Jessica E. Perlick, Senior Deputy

Attorney General; Aaron D. Ford, Attorney General; Nevada

Office of the Attorney General, Las Vegas, Nevada; for

Respondents-Appellees.

OPINION

BYBEE, Circuit Judge:

Michael Hogan, an inmate incarcerated on death row in

Nevada, appeals the denial of his petition for a writ of habeas

corpus. He challenges the district court’s denial of habeas

relief on two certified issues and moves to expand the

certificate of appealability (“COA”) on four issues. We

grant the motion to expand the COA as to one issue. We

affirm the district court’s judgment in part, and reverse and

remand in part.1

1

Hogan has filed two requests for judicial notice. ECF No. 18, 76. We

grant the request as to the March 21, 1985, memorandum regarding Dr.

Green, ECF No. 18 at 540, as well as the filings in Johnson v.

Mississippi, 486 U.S. 578 (1988), ECF No. 75. We deny the remaining

6 HOGAN V. BEAN

I. FACTUAL AND PROCEDURAL BACKGROUND

The facts and proceedings of this case span almost forty

years—more than fifty years when we consider Hogan’s

challenges to the aggravating circumstances that resulted in

a Nevada jury imposing the death penalty. See Appendix A

(providing a procedural timeline). Hogan’s direct appeal in

the case was completed in 1987. Hogan v. State, 732 P.2d

422 (Nev. 1987) (per curiam) (Hogan I), cert. denied, 484

U.S. 872 (1987). Since that time, Hogan has filed four

separate petitions for postconviction relief in Nevada (state

postconviction petitions) between 1987 and 2008, four

amended petitions for habeas corpus in U.S. District Court

in Nevada (federal habeas petitions) between 1989 and 2012,

and a petition for postconviction relief in Iowa, an appeal to

the Iowa Supreme Court, followed by a petition to the U.S.

District Court in Iowa, and an appeal to the Eighth Circuit.

See Appendix B (providing a list of claims raised by Hogan

in various petitions). We outline the facts and proceedings

below and add detail to those facts as necessary to explain

our analysis.

A. Guilt and Penalty Proceedings for the Murder of Heidi

Hinkley

In May 1985, a jury convicted Hogan of first-degree

murder for the killing of his girlfriend, Heidi Hinkley, and

the attempted murder of Hinkley’s teenage daughter, Shelley

Brown. Hogan I, 732 P.2d at 423.

requests given our disposition. Santa Monica Food Not Bombs v. City

of Santa Monica, 450 F.3d 1022, 1025 n.2 (9th Cir. 2006) (declining to

take judicial notice where the documents were “not relevant to the

resolution of th[e] appeal”).

HOGAN V. BEAN 7

In November 1984, Hogan and Hinkley traveled from

Nevada to California to attend a social event with the

Deutsch American Society of Southern Nevada. They

argued on the drive down and throughout the event. Helga

Schneider, who traveled with them, testified that the

morning after the event, Hinkley showed Schneider bruises

on her legs and told Schneider that Hogan had inflicted them.

On the way back to Las Vegas, Hinkley and Hogan

continued to argue. Hinkley told Hogan that their

relationship was over. Multiple witnesses overheard Hogan

repeatedly threaten to kill Hinkley when the couple returned

home.

On November 18, 1984, Hogan and Hinkley returned to

their home around 10:00 p.m. Some neighbors then came

over to drink alcohol and use cocaine and marijuana.

Around 3:00 a.m., Hinkley woke up her daughter, Brown.

Brown described Hinkley as “crying” and “shaking all

over.” Hinkley told Brown that Hogan had just threatened

to kill her. Hinkley and Brown fled to their friend Elaine

Lundmark’s house, scared and crying. Hinkley told

Lundmark that Hogan had pulled out a gun and said he was

going to kill her.

The next morning, November 19, 1984, at about 5:00

a.m., Hinkley and Brown returned home, went into Brown’s

bedroom together, and locked the door. Later that afternoon,

Hogan knocked on Brown’s bedroom door asking to speak

with Hinkley. The three of them went into the living room,

but once Hinkley told Hogan that he had to leave, Brown

retreated to the bathroom. Brown then heard a gunshot and

heard Hinkley tell her to run.

Before Brown could leave, Hogan appeared at the

bathroom door with a gun and shot her three times, striking

8 HOGAN V. BEAN

her in the hand, arm, and chest. As Brown called the police,

Hogan shot her again. He yanked the phone out of the wall

socket and then fired a final shot at close range, striking

Brown in the head. When Brown thought she heard Hogan

getting into his car, she ran outside for help. Officers arrived

and arrested Hogan before he could drive away.

At trial, the defense argued that Hogan was guilty of

second-degree murder of Hinkley, as opposed to first-degree

murder as charged, because he did not premeditate or

deliberate before committing the crimes. Hogan testified in

his own defense. Hogan said that he did not remember

shooting Hinkley or Brown, and he denied ever threatening

Hinkley. Hogan relayed that his arguments with Hinkley

were caused by her attempts to make him jealous of other

men. He drank alcohol on their return trip from California,

continued to drink when their friends came over, and used

cocaine with them. He remembered knocking on Brown’s

door later in the afternoon to look for Hinkley. He also

remembered Hinkley telling him that she had wanted to take

another man home with her, and he remembered lying on the

ground being arrested.

The jury found Hogan guilty of the first-degree murder

of Hinkley and the attempted murder of Brown.

At the penalty phase of Hogan’s trial, the State sought

the death penalty, alleging two aggravating circumstances.

First, the State alleged that Hogan was previously convicted

of a felony involving violence to the person of another under

NRS § 200.033(2). In support of this aggravating

circumstance, the State proffered evidence that in 1971,

Hogan pleaded guilty to and was convicted of manslaughter

in Iowa. Second, the State alleged that Hogan had

“knowingly created a great risk of death to more than one

HOGAN V. BEAN 9

person by means of a . . . course of action which would

normally be hazardous to the lives of more than one person”

under NRS § 200.033(3). During these proceedings, Hogan

was represented by George Franzen and Marcus Cooper

from the Clark County Public Defender’s Office. Counsel

challenged both aggravators and repeatedly sought

continuances to, in particular, investigate the circumstances

of the Iowa conviction.

The jury found the aggravating circumstances, could not

find mitigating circumstances, and returned a verdict for

death. In 1987, Hogan appealed his conviction and sentence

to the Nevada Supreme Court, which affirmed, and the

Supreme Court denied review. Hogan I, 732 P.2d 422

(1987), cert. denied, 484 U.S. 872 (1987). In its decision,

the Nevada Supreme Court observed:

This was a premediated murder with no clear

motive, followed by a brutal attempt to kill

the only apparent witness to the crime. This

is the second time Hogan has killed a woman

with whom he was involved, and we are

cognizant of the fact that Hogan’s repeated

shooting of Ms. Hinkley’s daughter ended

with a shot to the head of a helpless girl after

a pause for observation.

Id. at 425.

B. Hogan’s Four State Postconviction Petitions and First

Three Amended Federal Petitions for a Writ of Habeas

Corpus

In November 1987, Hogan filed pro se his first state

postconviction petition. See NRS § 177. Hogan raised four

10 HOGAN V. BEAN

claims, including that he had been denied effective

assistance of trial and appellate counsel, and flagged the use

of his Iowa conviction at the penalty phase. He was

appointed counsel, Christopher Maglaras, Jr., who filed an

eight-page memorandum of points and authorities, alleging

ineffective assistance of counsel (“IAC”) based on trial

counsel’s inadequate investigation of the Iowa conviction,

his trial counsel’s assertions that he was unprepared to

proceed to trial, and the delay in obtaining a psychiatric

report until after trial began. The memorandum also

requested an evidentiary hearing. The Nevada district court

dismissed the petition because it “consisted of bare or naked

claims for relief unsupported by any specific factual basis

which would entitle [Hogan] to relief.” The state court

further found that at Hogan’s trial “the Court observed, and

the record of these proceedings reflects, a high degree of

preparation by defense counsel,” and that the defense was

“vigorous and capable” and “did not fall below an objective

standard of professional reasonableness.”

At Hogan’s instruction, Maglaras filed a motion to

withdraw as counsel in April 1988, because Hogan wanted

to raise Maglaras’s own ineffectiveness in the post-

conviction proceedings. Maglaras’s motion to withdraw

was denied. In July 1988, Hogan filed an opening brief in

the Nevada Supreme Court, raising the same issues

surrounding trial counsel’s failure to investigate Hogan’s

Iowa conviction and failure to obtain the psychiatric report

until after trial began. The Nevada Supreme Court

dismissed, based on the “conclusory nature” of claims in the

petition. Order Dismissing Appeal, Hogan v. State, 809 P.2d

607 (Table), No. 18994, at *1 (Nev. Dec. 21, 1988) (Hogan

II). The court concluded that the district court had not erred

in refusing to conduct an evidentiary hearing. Citing

HOGAN V. BEAN 11

Strickland v. Washington, 466 U.S. 558 (1984), the Nevada

Supreme Court concluded that Hogan had “received

effective assistance at his trial and in his direct appeal.”

Hogan II, No. 18994, at *1.

In January 1989, Hogan filed a pro se petition for a writ

of habeas corpus with the United States District Court for the

District of Nevada, and was appointed new counsel. The

Federal Public Defender’s Office was briefly appointed, but

was later replaced by private counsel, Annette Quintana and

William Smith. With Quintana and Smith as counsel, Hogan

filed first and second amended petitions in federal court.

Because Hogan’s habeas petition contained exhausted and

unexhausted claims, in September 1990, the federal district

court granted Hogan a stay of proceedings so that he could

return to state court to exhaust all of his claims.

Hogan then filed a second state postconviction petition

in Nevada in November 1990. See NRS § 34.360 et seq.

Hogan raised four grounds: (1) ineffective assistance of trial

counsel for failure to ascertain whether Hogan’s Iowa

conviction was invalid; (2) ineffective assistance of trial

counsel for failing to attack the Iowa conviction in an Iowa

postconviction proceeding; (3) ineffective assistance of trial

counsel for failure to investigate and ascertain whether

Hogan’s conduct involved an act of intentional violence or

threat of violence; and (4) actual innocence of the

aggravating circumstance proscribed in NRS § 200.033(2).

The state district court dismissed the petition on the grounds

of procedural default and law of the case. The Nevada

Supreme Court affirmed, concluding that Hogan’s petition

did not meet the “exceptional provisions” for overcoming

the procedural bar of NRS § 34.810 on successive petitions.

Hogan v. Warden, Ely State Prison, 860 P.2d 710, 715 (Nev.

1993) (Hogan III), on motion for reh’g, 916 P.2d 805 (Nev.

12 HOGAN V. BEAN

1996) (Hogan IV), cert. denied, 519 U.S. 944 (1996). The

Court reviewed both aggravating circumstances on the

merits, as it had on direct review, and concluded that Hogan

could not avoid the procedural bar by claiming actual

innocence of the aggravating circumstances. Id. at 715–16.

The Nevada Supreme Court affirmed the district court’s

judgment that Hogan’s second state postconviction petition

“constituted an abuse of the writ.” Id. at 716. And the Court

also reiterated that it “previously determined, and it is now

the law of the case, that Hogan’s trial and appellate counsel

were clearly effective” under Strickland. Id.12

In 1997, the U.S. District Court for the District of

Nevada reopened Hogan’s federal habeas proceedings. Four

years later, in 2001, now represented by new counsel, Glynn

Cartledge and Richard Cornell, Hogan filed a third amended

federal habeas petition. In this amended petition, Hogan

raised twenty-seven claims, including eleven new claims of

ineffective assistance of trial counsel and one claim of

ineffective assistance of appellate counsel.3 The court again

2

The final disposition of Hogan’s second state postconviction petition

was complicated by internecine warfare on the Nevada Supreme Court

on an issue that had little to do with Hogan. The Nevada Supreme Court

was embroiled in a titanic struggle over alleged improprieties by a justice

on the court. See Whitehead v. Comm’n on Jud. Discipline, 873 P.2d

946 (Nev. 1994). Shortly after the Court decided Hogan III, 860 P.2d

710, newly appointed counsel for Hogan filed a petition for rehearing to

ask the justice to disqualify himself. The proceedings resulted in Hogan

IV, 916 P.2d 805, and a denied petition for certiorari, 519 U.S. 944

(1996). Hogan IV did not address the merits of any of Hogan’s habeas

claims.

3

Hogan’s claims of trial IAC included Ground 3 (failing to pursue

forensic evidence of the murder weapon); Ground 9 (presenting harmful

expert testimony); Ground 10 (failure to object to hearsay testimony);

HOGAN V. BEAN 13

stayed the proceedings in December 2003 so that Hogan

could exhaust his new claims in state court.

With a stay in place, in February 2004, Hogan filed his

third state postconviction petition, raising claims identical to

those in his third amended federal habeas petition. In August

2004, the state court conducted an evidentiary hearing on the

single issue of Hogan’s claim of trial IAC for presenting

harmful expert testimony from Dr. O’Gorman, a

psychiatrist. The court denied the petition in November

2005. Hogan appealed, and the Nevada Supreme Court

affirmed, concluding that Hogan’s petition was successive

under NRS § 34.810 and untimely under NRS § 34.726, and

that he had not shown good cause and prejudice. Order of

Affirmance, Hogan v. State, 178 P.3d 764 (Table), No.

46293, at *1B6 (Nev. Nov. 15, 2006) (Hogan V).

In 2008, Cartledge and Cornell withdrew as counsel, and

the Federal Public Defender’s Office was appointed for the

second time. Hogan requested another stay of federal

proceedings in order to present yet more claims to the

Nevada courts.

Ground 11 (constructive IAC for court’s failure to grant counsel’s

motion for continuance); Ground 12 (constructive IAC for court’s failure

to grant counsel’s motion for substitution of counsel); Ground 13A

(failure to object to jury instructions concerning premeditation and

deliberation); Ground 14 (use of “great risk of death” aggravator);

Ground 18 (failure to mention executive clemency); Ground 21 (failure

to present potential mitigation defense); Ground 24 (failure to challenge

Iowa plea as knowing and voluntary); and Ground 26 (failure to present

all relevant evidence, including 28 sub-claims). Ground 27 alleged

ineffective assistance of appellate counsel, including 26 subclaims. The

majority of these subclaims addressed failure to raise specific claims

before the Nevada Supreme Court.

14 HOGAN V. BEAN

In September 2008, Hogan filed his fourth and final state

postconviction petition. This fourth state petition raised

thirty-eight claims, many with subclaims, including fourteen

ineffective assistance of trial counsel subclaims. The

Nevada district court dismissed in 2009, and the Nevada

Supreme Court affirmed in 2012, again ruling the petition

was successive and untimely. Order of Affirmance, Hogan

v. State, No. 54011, 2012 WL 204641, at *1 (Nev. Jan. 20,

2012) (Hogan VI);

C. Hogan’s Fourth Amended Federal Habeas Petition

Following the Nevada Supreme Court’s decision in

Hogan VI, Hogan filed a motion to lift the stay, and the U.S.

District Court for the District of Nevada reopened federal

proceedings. In October 2012, Hogan filed his fourth and

final amended federal habeas petition. In his operative

petition, Hogan alleged twenty-seven claims, many with

extensive subclaims, including fifteen ineffective assistance

of trial counsel subclaims. The claims were substantively

similar to the claims raised in Hogan’s fourth state

postconviction petition but were numbered and categorized

in slightly different ways.

In March 2014, the federal district court dismissed the

bulk of Hogan’s claims as procedurally defaulted under NRS

§ 34.726, which generally bars claims filed later than one

year after a conviction becomes final under state law.

However, the district court found that four claims—Claims

2(H), 10, 11(C) and (D), and 26—were not procedurally

defaulted. Four years later, in March 2018, the district court

ruled on the merits of the four remaining claims.

First, in Claim 2(H), Hogan asserted that his trial counsel

was ineffective for failing to challenge the validity of his

Iowa conviction for manslaughter. That conviction served

HOGAN V. BEAN 15

as an aggravating factor supporting Hogan’s capital

conviction. Although the district court initially granted

Hogan’s motion for an evidentiary hearing on Claim 2(H),

the district court ultimately denied Hogan’s petition without

holding the hearing. The district court held that Hogan had

not shown his counsel performed below the “prevailing

professional norms” under Strickland for failing to

adequately challenge the Iowa guilty plea as invalid under

Iowa law. The district court also held that Hogan had not

shown he suffered prejudice for his counsel’s failure to

challenge the use of his Iowa conviction as a felony

involving violence, thus qualifying as an aggravating

circumstance under NRS § 200.033(2). Second, in Claim

10, Hogan alleged that the trial court violated his

confrontation rights because it allowed the jury to consider

hearsay testimony from murder victim Hinkley and Dr.

Green, the Nevada coroner, who had undergone heart

surgery. The district court found that the out-of-court

statements were admissible, and that even if there was a

Confrontation Clause violation, Hogan failed to show it

affected the outcome of his trial. Third, in Claim 11, Hogan

alleged that various instructional errors violated Hogan’s

constitutional rights because they misinformed jurors,

minimized the State’s burden of proof, and did not protect

against arbitrary and capricious infliction of the death

penalty. The court considered two instructions: Hogan first

alleged in Claim 11(C) that an anti-sympathy instruction

negated the constitutional mandate that all mitigating

evidence be considered. And in Claim 11(D) Hogan

challenged the trial court’s refusal to provide an instruction

regarding the lack of general deterrent effect of capital

punishment on future crime. The district court found that

because the Nevada Supreme Court rejected Hogan’s claims

16 HOGAN V. BEAN

and there was no persuasive authority to the contrary, Claims

11(C) and (D) were without merit. Fourth, in Claim 26,

Hogan alleged that he was entitled to habeas relief based on

the cumulative effect of the constitutional violations alleged

in his fourth amended habeas petition. The district court

denied this claim on the merits, finding that Hogan failed to

demonstrate that multiple constitutional errors prejudiced

the outcome of his state criminal proceeding. Accordingly,

the district court denied Hogan’s fourth amended federal

habeas petition. Hogan filed a motion to alter or amend the

judgment, and the district court denied it. This appeal

followed.

II. SCOPE AND STANDARD OF REVIEW

A. Scope of Our Review

Hogan has briefed six issues, only two of which were

certified for appeal by the district court: (1) “[w]hether

petitioner’s constitutional right to effective assistance of

counsel was violated because trial counsel failed to

adequately investigate the legality and underlying factual

circumstances of [Hogan’s] Iowa manslaughter conviction

that the State used as an aggravating circumstance”

(Claim 2(H)); and (2) “[w]hether the procedural default of

Hogan’s ineffective assistance of trial counsel claims [Claim

2] should be excused under Martinez v. Ryan, 56 U.S. 1

(2012).” We address his certified claims in Part III.

We may not review Hogan’s uncertified claims unless

we grant a certificate of appealability. 28 U.S.C.

§ 2253(c)(1)(A) (“Unless a . . . judge issues a certificate of

appealability, an appeal may not be taken to the court of

appeals from . . . the final order in a habeas corpus

proceeding . . . .”). We will treat Hogan’s briefing of his

uncertified issues as an application for a COA. Fed. R. App.

HOGAN V. BEAN 17

P. 22(b)(1)B(2); Ninth Cir. R. 22B1(e); Slack v. McDaniel,

529 U.S. 473, 483 (2000); McGill v. Shinn, 16 F.4th 666, 678

(9th Cir. 2021). Section 2253(c)(2) provides that we may

issue a COA “only if the applicant has made a substantial

showing of the denial of a constitutional right.” Section

2253(c) applies whether the habeas petition was filed before

or after the effective date of the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”). Slack, 529 U.S. at

478. Hogan’s uncertified issues are: (1) whether Hogan has

procedurally defaulted his challenge to the constitutionality

of the two aggravating factors supporting his death sentence

(Claims 5(A) and (B)); (2) whether the trial court violated

Hogan’s confrontation right (Claim 10); (3) whether jury

instructional errors prevented the jury from crediting

mitigation evidence and providing Hogan with an

individualized sentencing determination (Claims 11(C) and

(D)); and (4) whether Hogan’s lethal injection claim is

procedurally defaulted (Claim 25). For reasons we will

explain in Part IV, we deny a COA as to Hogan’s Claims 10,

11(C) and (D), and 25. We grant a COA as to Claims 5(A)

and (B), although we affirm on the merits.

B. Standard of Review

We have jurisdiction under 28 U.S.C. § 2253. We

review the district court’s denial of a habeas petition de novo

and its factual findings for clear error. Robinson v. Schriro,

595 F.3d 1086, 1099 (9th Cir. 2010). We also review de

novo the district court’s conclusion that a claim is

procedurally defaulted. Cooper v. Neven, 641 F.3d 322, 326

(9th Cir. 2011). “We may affirm the district court’s decision

on any ground supported by the record, even if it differs from

the district court’s rationale.” Lambert v. Blodgett, 393 F.3d

943, 965 (9th Cir. 2004).

18 HOGAN V. BEAN

This case predates AEDPA’s effective date. Under pre-

AEDPA law, we review a state court’s determination of

questions of federal law and mixed questions of law and fact

de novo. Summerlin v. Schriro, 427 F.3d 623, 628 (9th Cir.

2005). With respect to matters of Nevada law, the “‘state

courts are the ultimate expositors of state law,’ and we are

bound by the state’s construction except when it appears that

its interpretation is an obvious subterfuge to evade the

consideration of a federal issue.” Peltier v. Wright, 15 F.3d

860, 862 (9th Cir. 1994) (quoting Mullaney v. Wilbur, 421

U.S. 684, 691 (1975)). We “accord a presumption of

correctness to state-court findings of fact” unless “the state-

court finding of fact is not fairly supported by the record” or

comes within one of seven factors provided in the pre-

AEDPA version of 28 U.S.C. § 2254(d).4 Sumner v. Mata,

4

28 U.S.C. § 2254(d) (1991) formerly provided:

(d) In any proceeding instituted in a Federal court by

an application for a writ of habeas corpus by a person

in custody pursuant to the judgment of a State court, a

determination after a hearing on the merits of a factual

issue, made by a State court of competent jurisdiction

in a proceeding to which the applicant for the writ and

the State or an officer or agent thereof were parties,

evidenced by a written finding, written opinion, or

other reliable and adequate written indicia, shall be

presumed to be correct, unless the applicant shall

establish or it shall otherwise appear, or the respondent

shall admit—

(1) that the merits of the factual dispute were not

resolved in the State court hearing;

(2) that the factfinding procedure employed by the

State court was not adequate to afford a full and fair

hearing;

HOGAN V. BEAN 19

(3) that the material facts were not adequately

developed at the State court hearing;

(4) that the State court lacked jurisdiction of the

subject matter or over the person of the applicant in

the State court proceeding;

(5) that the applicant was an indigent and the State

court, in deprivation of his constitutional right,

failed to appoint counsel to represent him in the

State court proceeding;

(6) that the applicant did not receive a full, fair, and

adequate hearing in the State court proceeding; or

(7) that the applicant was otherwise denied due

process of law in the State court proceeding;

(8) or unless that part of the record of the State court

proceeding in which the determination of such

factual issue was made, pertinent to a determination

of the sufficiency of the evidence to support such

factual determination, is produced as provided for

hereinafter, and the Federal court on a consideration

of such part of the record as a whole concludes that

such factual determination is not fairly supported by

the record:

And in an evidentiary hearing in the proceeding in the

Federal court, when due proof of such factual

determination has been made, unless the existence of

one or more of the circumstances respectively set forth

in paragraphs numbered (1) to (7), inclusive, is shown

by the applicant, otherwise appears, or is admitted by

the respondent, or unless the court concludes pursuant

to the provisions of paragraph numbered (8) that the

record in the State court proceeding, considered as a

whole, does not fairly support such factual

determination, the burden shall rest upon the applicant

to establish by convincing evidence that the factual

determination by the State court was erroneous.

20 HOGAN V. BEAN

455 U.S. 591, 592 (1982) (per curiam) (internal quotation

marks and citation omitted); see Burton v. Davis, 816 F.3d

1132, 1140 (9th Cir. 2016).

III. CERTIFIED ISSUES

A. Certified Claim 1: Did Trial Counsel in the Nevada

Proceedings Provide Ineffective Assistance by Failing to

Adequately Investigate and Challenge Hogan’s 1971

Iowa Manslaughter Conviction (Claim 2(H))?

Hogan alleges that his trial counsel provided ineffective

assistance by failing to adequately investigate the legality

and underlying facts of his 1971 Iowa manslaughter

conviction. Nevada used Hogan’s Iowa conviction as an

aggravating circumstance in his penalty proceeding.

1. Iowa proceedings

The underlying facts of Hogan’s manslaughter

conviction concern the death of Savilla Kubicek, Hogan’s

former girlfriend. In 1970, Hogan and Kubicek had an

argument in the parking lot of a bar. A witness described a

physical altercation, in which Hogan choked Kubicek and

slammed her head into the side of his car. Kubicek crumpled

to the ground and appeared unconscious. Hogan picked her

up and put her in the car. Once Kubichek regained

consciousness, Hogan got back into the car and drove away.

Later that evening, Hogan was seen driving with

Kubicek in the passenger seat. Witnesses saw the passenger

door of the car open and Kubicek’s body fall out and roll to

the shoulder of the road; Hogan did not stop driving.

Kubicek was still breathing after the fall, and witnesses

called an ambulance, but she died as a result of the injuries

sustained that night. It was never clear whether Kubicek

jumped or was pushed from the car. Hogan was initially

HOGAN V. BEAN 21

charged with murder, but pleaded guilty to a reduced charge

of manslaughter and was sentenced to eight years in state

prison. He filed no appeals or postconviction petitions and

was released in 1972 and completed probation in 1974.

2. Nevada proceedings

One week before Hogan’s Nevada trial was scheduled to

begin on February 19, 1985, the State filed a formal notice

seeking the death penalty. As one of its two alleged

aggravating circumstances, the State identified the Iowa

conviction to support its contention that Hogan was “a

person who . . . has been convicted of . . . [a] felony

involving the use or threat of violence to the person of

another.” NRS § 200.033(2).

The day after the State filed its notice, Hogan’s attorney,

George Franzen of the Clark County Public Defender’s

Office, moved to continue the trial. The court granted the

motion and rescheduled the trial for the end of April 1985.

During these two months, Marcus Cooper, also from the

Clark County Public Defender’s Office, replaced Franzen as

lead counsel. Cooper had previously participated in one

capital case and, in his own words, had received “no training

in [capital] cases.” Cooper moved for a second and third

continuance, which pushed the trial date to May 6, 1985.

The last motion to continue, filed April 29, 1985, specifically

mentioned that counsel was “in the process of trying to

contact and interview defense witnesses in the State of Iowa”

to challenge the aggravating circumstance regarding a prior

conviction.

A week before Hogan’s trial was set to begin, Cooper

filed a fourth motion to continue. Cooper informed the court

he had been working with the public defender’s office in

Iowa, and that he needed more time for the investigation.

22 HOGAN V. BEAN

Cooper requested two months to defend against the prior

felony aggravator. The court granted two days.

On the eve of trial, Hogan’s counsel renewed his motion

to continue, asserting he was unprepared for trial and that

“effective representation” required him to conduct a

“thorough investigation of [Hogan’s] prior conviction.”

Hogan’s counsel explained “[t]hat the Clark County Public

Defender’s Office ha[d] neither the time [n]or resources to

independently investigate [the Iowa] conviction,” and he

was relying “solely” on the Black Hawk County Public

Defender’s Office in Iowa to investigate the prior crime.

Hogan’s counsel also informed the court that he had been

“extremely ill” for three weeks of the two months he had

been on the case. The court denied the motion and

proceeded to empanel a jury.

Hogan was convicted in May 1985. Hogan’s counsel

moved to continue the penalty hearing, but the court denied

the motion. The day before the penalty hearing, Hogan’s

counsel moved to strike the prior-violent-felony aggravating

circumstance, alleging that Hogan’s Iowa plea was

constitutionally defective because it was not entered

“voluntarily and understandingly,” in violation of the U.S.

Constitution. See Boykin v. Alabama, 395 U.S. 238, 244

(1969). Accordingly, it could not be admitted in Nevada

courts. See NRS § 175.552(3) (“No evidence which was

secured in violation of the Constitution of the United States

or the Constitution of the State of Nevada may be

introduced.”); Ridings v. State, 669 P.2d 718, 719 (Nev.

1983), overruled on other grounds by Bryant v. State, 721

P.2d 364, 368 n.3 (Nev. 1986); Standen v. State, 657 P.2d

1159, 1160–62 (Nev. 1983); Scott v. State, 630 P.2d 257, 258

(Nev. 1981). The trial court found that Hogan’s Iowa plea

HOGAN V. BEAN 23

was not constitutionally defective and denied the motion to

strike. The jury returned a verdict for death.

3. Postconviction proceedings

In March 1989, during the pendency of Hogan’s first

federal habeas proceeding, Hogan filed a petition in Iowa

district court challenging his Iowa conviction on the ground

that he had not voluntarily pleaded guilty because the Iowa

trial court had failed to inquire whether there was adequate

basis for the charge. See State v. Finney, 834 N.W.2d 46,

55–56 (Iowa 2013) (explaining the standard); State v. Sisco,

169 N.W.2d 542, 545–48 (Iowa 1969) (adopting the

standard). The State of Iowa indicated that it would stipulate

that Hogan’s manslaughter plea violated Iowa law. Still, the

Iowa court denied Hogan’s challenge as untimely because

Hogan failed to file it prior to the statutory deadline of June

30, 1987. The Iowa Supreme Court affirmed. Hogan v.

State, 454 N.W.2d 360 (Iowa 1990); see Iowa Code

§ 663A.3. Hogan’s efforts to challenge the conviction in

both the United States District Court for the Northern

District of Iowa and the United States Court of Appeals for

the Eighth Circuit also failed. See Hogan v. Iowa, 952 F.2d

224 (8th Cir. 1991) (per curiam).

After challenging his Iowa conviction in the Iowa state

and federal courts, Hogan then raised his challenges to the

Iowa conviction again in Nevada state court. The Nevada

Supreme Court reviewed the proceedings in the Iowa courts

and concluded that the Iowa Supreme Court had “found no

factual basis for relieving Hogan of his felony conviction for

manslaughter and there is no basis for presuming that the

Iowa court ignored constitutional grounds for granting such

relief.” Hogan III, 860 P.2d at 713. The Court also reviewed

the extensive colloquy between Hogan and the Iowa trial

24 HOGAN V. BEAN

judge in 1971 and rejected Hogan’s argument that

“irrespective of the constitutionality of his Iowa conviction,

there was no evidentiary basis for finding that his crime

involved the use or threat of violence on [Kubicek].” Id.

(quoting the plea colloquy); see also id. at 713 n.1 (citing

Hogan I, 732 P.2d at 424 n.1) (noting that the Nevada

Supreme Court had previously reviewed the transcript of the

Iowa plea colloquy and was satisfied that Hogan had

knowingly waived his trial rights). In addition, the Nevada

Supreme Court reiterated that “[w]e have previously

determined, and it is now the law of the case, that Hogan’s

trial and appellate counsel were clearly effective and that the

criteria for relief established by Strickland v. Washington

. . . have not been satisfied.” Id. at 716.

Hogan now argues that he received ineffective assistance

of trial counsel regarding his Iowa conviction. He offers two

reasons. First, Hogan argues that Nevada trial counsel were

ineffective because they failed to file a timely collateral

attack in Iowa challenging the validity of his prior Iowa

guilty plea. Specifically, Hogan argues that the guilty plea

violated Iowa law, and therefore his Nevada trial counsel

failed to adequately investigate and timely challenge the

Iowa conviction, and seek post-conviction relief in the Iowa

courts. Second, aside from challenging the Iowa conviction

itself, Hogan argues that Nevada trial counsel were

ineffective because they failed to challenge the

circumstances underlying his manslaughter conviction to

show that the state had not proven that his Iowa conviction

was, in fact, a crime of violence. In 1971, when he pled

guilty, the Iowa criminal statutes did not distinguish between

voluntary and involuntary manslaughter. See State v.

Shimon, 182 N.W.2d 113, 114 (Iowa 1970). Hogan argues

that, as a result, his conviction did not qualify for the crime-

HOGAN V. BEAN 25

of-violence aggravating circumstance under Nevada law.

We will address each claim separately.

a. Failure to collaterally attack Hogan’s Iowa

conviction in Iowa

The district court assumed that Hogan was prejudiced by

his trial counsel’s failings because there was a “reasonable

probability” the Iowa conviction would have been vacated if

Hogan had timely challenged it. The district court also

recognized “a reasonable probability that the lone remaining

aggravating circumstance . . . would not have been weighty

enough, standing alone, for the jury to impose the death

penalty.” Ultimately, however, the district court denied the

trial IAC claim, concluding that Hogan’s trial counsel’s

performance was not deficient because “this court is unable

to conclude that Hogan’s counsel were obligated by

prevailing norms at the time to . . . collaterally attack the

Iowa conviction in the Iowa courts.”

To demonstrate ineffective assistance of trial counsel,

Hogan must demonstrate that Nevada counsel performed

deficiently and that this deficiency prejudiced him.

Strickland, 466 U.S. at 687. An attorney’s “performance is

deficient if, considering all the circumstances, it ‘fell below

an objective standard of reasonableness . . . under prevailing

professional norms.’” Jones v. Ryan, 52 F.4th 1104, 1116

(9th Cir. 2022) (quoting Strickland, 466 U.S. at 688)

(alteration in original). We begin with “a strong

presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.” Strickland,

466 U.S. at 689. This objective approach requires us “to

affirmatively entertain the range of possible ‘reasons

[Hogan’s] counsel may have had for proceeding as [they]

did.’” Leavitt v. Arave, 646 F.3d 605, 609 (9th Cir. 2011)

26 HOGAN V. BEAN

(emphasis in original) (quoting Cullen v. Pinholster, 563

U.S. 170, 196 (2011)).

To determine whether performance was constitutionally

deficient, we look to “prevailing professional norms” at the

time of trial. Padilla v. Kentucky, 559 U.S. 356, 366 (2010).

“That standard is necessarily a general one,” but guidance

manuals, restatements of professional standards, and ABA

guidelines are useful to establish these norms, provided that

they were in effect at the time of counsel’s representation.

Bobby v. Van Hook, 558 U.S. 4, 7 (2009). We do not get to

second-guess counsel based on guidelines that did not exist

“when the representation took place.” Id.; see also id. at 7–

9 (disapproving reliance on ABA capital case guidelines

published after the trial). Moreover, such norms are “‘only

guides’ to what reasonableness means, not its definition,” id.

at 8 (quoting Strickland, 466 U.S. at 688); such guidelines

are not “inexorable commands,” id.

Hogan points to several publications, an affidavit, and

two letters as evidence that his counsel was obligated to

pursue collateral relief in Iowa courts for his 1971

conviction. Several of these sources did not exist at the time

of Hogan’s 1985 trial.5 We decline to give them any weight

in our analysis. See id. at 8 (“Judging counsel’s conduct in

5

For example, the California Public Defender Association Death Penalty

Defense Manual is from 1986. The ABA Postconviction Death Penalty

Project Manual is dated 1988. The National Legal Aid Defender

Association Capital Standards were approved for adoption in 1987, and

the NLADA manual was not published until 1988. See NLADA

Standards for the Appointment and Performance of Counsel in Death

Penalty Cases (1988), https://www.nlada.org/defender-standards/death-

penalty. The NLADA manual itself states that “national standards on

the assignment and performance of counsel in capital cases did not exist

prior to these Standards.” Id.

HOGAN V. BEAN 27

the 1980’s on the basis of these 2003 Guidelines . . . was

error.”). Hogan has identified three sources that cover the

correct time period: (1) a 1984 article in The Champion, a

publication of the National Association of Criminal Defense

Lawyers; (2) a Declaration of Martin Wiener, a Nevada

criminal defense attorney; and (3) two letters from Paul

Shinkle, the attorney who represented Hogan before the

Iowa Supreme Court.

As relevant to Hogan’s appeal, The Champion article

states that multiple avenues exist to challenge evidence of a

prior conviction. “[A] prior conviction may be subject to

exclusion because defendant was not represented by counsel

and did not waive that right, because the prior conviction

was the product of an involuntary guilty plea, or because

counsel in the previous case rendered ineffective assistance.”

Gail R. Weinheim & Michael G. Millman, Legal Issues

Unique to the Penalty Trial, The Champion, Mar. 1984, at

33, 35 (citations and footnote omitted). It further comments

that “[s]tate law may provide additional reasons for

excluding this evidence,” including challenging a prior

conviction for lack of counsel, involuntary guilty plea, or

ineffective assistance of counsel. Id. The article does not

explain how counsel should raise or present such challenges.

The 2016 declaration from Martin Wiener describes

what Wiener perceived to be the norms in 1985, based on his

consultation with many of the sources described above.

Wiener is a Nevada attorney, formerly with the Clark County

Public Defender’s Office and the Federal Public Defender’s

Office for the District of Nevada, who had served as counsel

in capital cases during the period Hogan was tried.

According to Wiener, “competent counsel [in 1985] would

have done whatever they could to challenge the

unconstitutional Iowa prior conviction.” Specifically, he

28 HOGAN V. BEAN

wrote that “[t]he most efficient and apparent way of

challenging the Iowa conviction would have been to have

Mr. Hogan file a pro se petition in Iowa, in which he asked

the state court there to vacate the unconstitutional

conviction.” Wiener also argued that Hogan’s counsel

should have requested a continuance earlier. Wiener

emphasized that “[e]ffective practitioners would have

known in 1985 to challenge a patently unconstitutional

conviction in the court of origin.” For the proposition that

practitioners at the time challenged convictions “in the court

of origin,” Weiner relied on Johnson v. Mississippi, 486 U.S.

578 (1988), which was decided after Hogan’s trial. He

further opined that “it would have cost counsel nothing to

assist Hogan in filing a pro se petition [in Iowa],” and the

filing of such a petition would have provided additional

grounds for seeking a continuance in Nevada. Wiener also

relied on guidelines published after Hogan’s trial.

Paul Shinkle was Hogan’s appointed counsel for his

postconviction relief petition in Iowa. In letters to Nevada

counsel in 1989 and 1990, Shinkle stated that Iowa lawyers

would have known that Hogan’s 1971 plea was

constitutionally defective and that any challenge to his 1971

conviction had to be brought before the 1987 deadline.

Shinkle stated that he was “concerned” about the lack of

contact between Nevada and Iowa counsel. He concluded

that Hogan’s Nevada counsel was “ineffective in failing to

contact an Iowa attorney” regarding Hogan’s guilty plea.

Although Hogan does not cite to them, we have

previously consulted the ABA Standards for Criminal

Justice to determine whether counsel performed deficiently.

See Heishman v. Ayers, 621 F.3d 1030, 1037 (2010);

Summerlin, 427 F.3d at 629–30 (collecting cases). The 1980

version of the ABA standards, effective at the time of

HOGAN V. BEAN 29

Hogan’s trial, stated that counsel had a duty “to conduct a

prompt investigation of the circumstances of the case” and

“explore all avenues leading to facts relevant to the

merits . . . and the penalty.” ABA Standards for Criminal

Justice 4-4.1 (2d ed. 1980).

From our review of these materials in the record and the

applicable guidelines, we cannot discern that Nevada trial

counsel performed deficiently. Many of the sources Hogan

relies on simply specify that counsel must make timely

challenges without specifying what form those challenges to

a prior conviction must take. Both The Champion article and

the 1980 ABA Guidelines offer only the most general of

admonitions; neither makes any mention of an obligation of

counsel to undertake a collateral attack on a prior conviction

in another jurisdiction. A general charge to “explore all

avenues” cannot form the basis for evaluating counsel’s

performance. These catch-all, gold-standard descriptions

with sweeping statements cannot show that counsel’s

specific choices were deficient.6

6

In addition, we agree with the district court that reliance on Johnson v.

Mississippi is misplaced. The Supreme Court in Johnson recited that

“[a]fter his Mississippi conviction, . . . [Johnson’s] attorneys

successfully prosecuted a postconviction proceeding in New York in

which they persuaded the Monroe County Court that petitioner had been

unconstitutionally deprived of his right to appeal.” 486 U.S. at 582. In

a subsequent appeal, his conviction was reversed. The Supreme Court

held that Mississippi could not rely on the vacated conviction as an

aggravating circumstance in his death sentence. Id. at 586. The Court’s

decision does not disclose who represented Johnson or the circumstances

under which the New York petition was filed. Johnson was well

represented, but Johnson falls far short of establishing a normative

standard for judging the effective assistance of counsel. See Premo v.

Moore, 562 U.S. 115, 122 (2011) (“[T]he question is whether an

30 HOGAN V. BEAN

Nor do the Wiener and Shinkle declarations demonstrate

that counsel was ineffective for failing to help Hogan

collaterally challenge his conviction in Iowa. Wiener

suggests, for example, that counsel could have satisfied

minimum standards by helping Hogan file a pro se petition

in Iowa, and Shinkle stated that an Iowa lawyer would have

known that a challenge to the 1971 conviction had to be filed

by 1987. But in fact, any challenge at the time of trial in

1985 to the 1971 conviction was unlikely to have succeeded

in Iowa. At that point Hogan’s Iowa conviction was fifteen

years old; Hogan had failed to bring any challenge during

that time. In July 1984, a three-year statute of limitations on

postconviction challenges in Iowa became effective. See

Iowa Code § 663A.3 (1985). Hogan’s 1971 Iowa conviction

fell far outside that three-year limitations period. Although

in 1986 the Iowa Supreme Court established an equitable

exception allowing “all potential postconviction applicants

whose convictions became final prior to July 1, 1984” until

June 1987 to file their applications for postconviction relief,

see Brewer v. Iowa Dist. Ct. for Pottawattamie Cnty., 395

N.W.2d 841, 844 (Iowa 1986), at the time of Hogan’s trial

in May 1985, a reasonable attorney would have thought the

claim was time-barred. As the Iowa Supreme Court

observed in its decision affirming dismissal of Hogan’s 1989

post-Nevada-conviction petition:

Simply put, it is an “obvious fact of life that

most criminal convictions do in fact entail

adverse collateral consequences.” Hogan’s

inability to accurately predict future events,

and adjust his behavior accordingly, is not the

attorney’s representation amounted to incompetence . . . not whether it

deviated from best practices or most common custom.”).

HOGAN V. BEAN 31

sort of factual circumstances reasonably

triggering [an exception to the period for

filing an application for relief].

Hogan, 454 N.W.2d at 361 (quoting Sibron v. New York, 392

U.S. 40, 55 (1968)).

We acknowledge that Hogan’s trial counsel faced

significant challenges. Hogan’s trial counsel described in

depositions that the Clark County Public Defender’s Office

was chronically underfunded, and the public defenders had

no capital-specific training. Nevertheless, Hogan’s counsel

sought multiple avenues to obtain additional help. Although,

“due to cost constraints,” Hogan’s trial counsel was “not

permitted to send an investigator to Iowa,” Hogan’s counsel

did make some contacts in Iowa and did challenge the

validity of the Iowa conviction, albeit not in Iowa. Cooper

filed file a fourth motion to continue the start of the trial so

he could pursue his Iowa investigation, but the court granted

only a two-day extension. Trial counsel tried to reach

Hogan’s attorney in Iowa, but he had either died, or his files

were not retrievable. Trial counsel also contacted the Black

Hawk County Public Defender’s Office to obtain records

and other assistance for Hogan. The Black Hawk County

Public Defender’s Office turned over Hogan’s court files,

including a transcript of Hogan’s plea colloquy.

Using these materials, Hogan’s counsel vigorously

pursued a strategy of challenging the State’s use of the Iowa

conviction in his Nevada proceedings, filing a motion to

strike the State’s use of the Iowa conviction. Instead of using

its resources to challenge his Iowa conviction in Iowa,

counsel focused on persuading the Nevada court that

Hogan’s Iowa conviction was constitutionally infirm under

Nevada law and could not be used. See NRS § 175.552.

32 HOGAN V. BEAN

Counsel pointed out that Hogan was initially charged with

open murder in Iowa, a charge that did not differentiate

between murder in the first or second degree. The charge

was reduced to manslaughter, and Hogan accepted the

State’s offer to plead to the lesser charge. Counsel argued

that “[t]he elements of the offense of manslaughter, in

whatever form were never explained to Mr. Hogan,” and, as

a result, he had not pleaded guilty “voluntarily and

understandingly.” See Scott, 630 P.2d at 258 (quoting

Boykin, 395 U.S. at 244).

Given these efforts, the relevant question is whether a

competent lawyer in 1985 would have challenged the Iowa

conviction despite the apparent time bar and even though the

Nevada challenge had considerable merit. Strickland makes

clear that counsel must make “reasonable decision[s].” 466

U.S. at 690–91. Those decisions must reflect the on-the-

ground reality of litigation and not an idealized, unattainable

model. See Bobby, 558 U.S. at 11. In sum, “[c]ounsel was

entitled to formulate a strategy that was reasonable at the

time and to balance limited resources in accord with

effective trial tactics and strategies.” Harrington v. Richter,

562 U.S. 86, 107 (2011).

Counsel’s motion to strike the prior conviction fits easily

within the Harrington v. Richter standard and within the

broad guidelines discussed in The Champion article. That

motion directly challenged Hogan’s plea colloquy as

involuntary under Nevada’s own requirements. Nevada law

prohibits the use of any “evidence which was secured in

violation of the Constitution of the United States or the

constitution of the State of Nevada.” NRS § 175.552(3).

And Hogan’s counsel briefed the trial court on decisions of

the Nevada Supreme Court in which it had reversed

HOGAN V. BEAN 33

convictions where the defendant had pleaded guilty without

having been advised of the nature of the crime and the plea.

See, e.g., DuBose v. State, 682 P.2d 195 (Nev. 1984);

Ridings, 669 P.2d at 719; Standen, 657 P.2d at 1160–62.

Counsel further pointed out that the Nevada Supreme Court

had excluded evidence of prior convictions where the pleas

were involuntarily given. See, e.g., Scott, 630 P.2d at 258.

Moreover, challenging the conviction in Nevada under

Nevada law rather than in Iowa had advantages for Hogan.

Hogan had pleaded to a reduced charge of manslaughter in

Iowa. A successful challenge to that conviction might have

exposed Hogan to a retrial and the possibility of a more

severe sentence. The Wiener and Shinkle opinions as to

what a competent lawyer would have done do not take

account of that consideration or, for that matter, of the

timeliness problem in Iowa at the time of trial, or the possible

merit of the competing strategy of challenging the Iowa

conviction in Nevada under Nevada law.

In sum, trial counsel’s decision to focus on the Nevada

challenge rather than a potential out-of-jurisdiction

challenge in the court of origin was a reasonable strategic

decision, particularly given the constraints of time and

resources. See Harrington, 562 U.S. at 107; Strickland, 466

U.S. at 690–91. Because this decision reflects “the exercise

of reasonable professional judgment,” Strickland, 466 U.S.

at 690, Hogan has not rebutted the presumption that trial

counsel’s performance was reasonable. We conclude that

Hogan did not receive ineffective assistance of counsel

because counsel did not challenge his prior conviction in

Iowa.

34 HOGAN V. BEAN

b. Failure to collaterally attack Hogan’s Iowa

conviction as a crime of violence.

Hogan also cannot demonstrate IAC for counsel’s failure

to challenge the Iowa conviction as a crime of violence under

NRS § 200.033(2). At the time of Hogan’s Iowa conviction,

Iowa did not distinguish between voluntary and involuntary

manslaughter. Iowa Code § 690.10 (1971); see State v.

Shimon, 182 N.W.2d 113, 114 (Iowa 1970). Hogan

maintains that because he pleaded guilty to “manslaughter,”

counsel should have argued that this conviction did not

constitute a crime of violence under Nevada law. Hogan

also asserts that if counsel had challenged this aggravating

circumstance, the trial court would not have allowed the

State to present it to the jury. In response, the State asserts

that, regardless of whether trial counsel was competent in not

making the crime of violence argument, Hogan cannot

demonstrate prejudice.

Wiener’s declaration proposes that competent counsel

“would have researched Iowa’s definition of manslaughter”

to see whether it met the violent felony criteria for purposes

of Nevada’s aggravating circumstances. Similarly, The

Champion article mentions that state law may limit the use

of prior convictions for violent offenses. Weinheim &

Millman, Legal Issues, supra, at 35 (citations and footnote

omitted). In such cases, “counsel should consider requesting

that the prosecution demonstrate the existence of those

elements outside the jury’s presence.” Id.

Hogan cannot succeed on this IAC claim because he

cannot demonstrate prejudice from counsel’s failure to

challenge the crime-of-violence aggravator. To demonstrate

prejudice, Hogan must show “a reasonable probability that,

absent the errors, the sentencer—including an appellate

HOGAN V. BEAN 35

court, to the extent it independently reweighs the evidence—

would have concluded that the balance of aggravating and

mitigating circumstances did not warrant death.” Strickland,

466 U.S. at 695. “A reasonable probability is one ‘sufficient

to undermine confidence in the outcome,’ but is ‘less than

the preponderance more-likely-than-not standard.’”

Lambright v. Schriro, 490 F.3d 1103, 1121 (9th Cir. 2007)

(quoting Summerlin, 427 F.3d at 640, 643) (internal

quotation marks and citation omitted). “However, [a]

reasonable probability means a substantial, not just

conceivable, likelihood of a different result.” Jones, 52

F.4th at 1116 (quotations and citations omitted) (alteration

in original).

We conclude that any such challenge from Hogan was

destined to fail. At the time of Hogan’s trial, Nevada courts

considered any evidence in the record to determine whether

a prior conviction constituted a crime of violence. See

Dennis v. State, 116 Nev. 1075, 1082 (2000) (considering

police reports, judgments of conviction, and testimony of

victims); Parker v. State, 109 Nev. 383, 393 (1993)

(considering judgment of conviction and testimony of

victims and probation officer). See also Redeker v. Eighth

Judicial Dist. Court, 127 P.3d 520, 525–26 (Nev. 2006).7

There was ample evidence in the Iowa record demonstrating

that the facts underlying Hogan’s manslaughter conviction

were violent. There were two autopsy reports, which

reached slightly different conclusions, neither of them

favorable to Hogan. The first autopsy report described

7

In 2006, the Nevada Supreme Court addressed for the first time the

scope of evidence that may properly be considered in the crime of

violence inquiry, and limited the court’s consideration to “the statutory

definition, charging document, written plea agreement, transcript of plea

colloquy, and any explicit factual finding by the trial judge.” Id. at 525.

36 HOGAN V. BEAN

Kubicek’s substantial injuries—she suffered a “[c]erebral

edema,” “[f]ocal cerebral contusions,” and “multiple skull

fractures,” with “[s]kull fracture” being the probable cause

of her death—without specifying whether the fracture

resulted from Hogan slamming Kubicek’s head into the car’s

frame or from her fall from the moving vehicle. The second

autopsy report found that the skull fracture was likely caused

by Hogan slamming her head against the frame of the car.

Hogan himself had admitted before the Iowa court that he

struck Kubicek’s head against the car. Multiple witnesses

saw Hogan hit Kubicek’s head against the car and, later,

drive without stopping after she fell from the moving

vehicle. Others described Hogan’s abuse of Kubicek before

he struck her head on the car, including choking her while

she screamed for help during their argument. In his Iowa

plea, Hogan admitted through his counsel that he “struck

[Kubicek’s] head against the car, and on [counsel’s]

advice . . . entered a plea of guilty [to manslaughter].”

Hogan III, 860 P.2d at 713–14 (quoting the colloquy at

Hogan’s plea hearing). Hogan’s admission of these facts

would have given the jury ample reason to find that Hogan’s

manslaughter conviction was for a crime of violence under

Nevada law, regardless of whether Iowa’s statute in the

abstract fulfilled this requirement. Therefore, Hogan was

not prejudiced by counsel’s failure to challenge the crime-

of-violence aggravator.

We conclude that Hogan did not receive ineffective

assistance of trial counsel, and we affirm the district court’s

resolution of Claim 2(H).

HOGAN V. BEAN 37

B. Certified Claim 2: Does Martinez Excuse Hogan’s

Procedurally Defaulted Trial IAC Claims (Claims 2(A)–

(G) and (I)–(O))?

We next address Hogan’s several claims of trial-court

IAC, which were procedurally defaulted in state court. We

first explain the cause-and-prejudice inquiry under Martinez.

We then apply those rules to Hogan’s case, elaborating as to

why Hogan may benefit from the Martinez exception. We

conclude by providing additional guidance to the district

court on remand.

1. Procedural default and the Martinez exception

Hogan has alleged several procedurally defaulted trial-

court IAC claims (Claims 2(A)–(G), (I)–(O)). They are

procedurally defaulted because he did not raise them in his

first state post-conviction relief (“PCR”) petition. Nor did

he raise them in his second state PCR petition. When he

raised the relevant claims in his third state PCR petition, the

state courts rejected them on procedural grounds as both

successive and untimely. In most instances, such procedural

default would foreclose federal habeas relief; a state court’s

invocation of its own procedural rules bars federal relief so

long as “(1) ‘a state court [has] declined to address a

prisoner’s federal claims because the prisoner had failed to

meet a state procedural requirement,’ and (2) ‘the state

judgment rests on independent and adequate state procedural

grounds.’” Walker v. Martin, 562 U.S. 307, 316 (2011)

(alteration in original) (quoting Coleman v. Thompson, 501

U.S. 722, 729–30 (1991)).

Federal habeas petitioners can overcome procedural

default by demonstrating cause and prejudice. See Smith v.

Baldwin, 510 F.3d 1127, 1146–47 (9th Cir. 2007) (en banc).

Establishing cause requires a petitioner to show some

38 HOGAN V. BEAN

external impediment to compliance with state procedure.

See Coleman, 501 U.S. at 753 (holding that a petitioner must

show “some objective factor external to the defense impeded

counsel’s efforts to comply with the State’s procedural rule.”

(quoting Murray v. Carrier, 477 U.S. 478, 488 (1986))). For

example, a petitioner may establish cause by showing that

government officials withheld material information. See id.

“Prejudice” requires the petitioner to 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)).

Usually, attorney error cannot establish cause to

overcome procedural default. This rule derives from first

principles of agency law. “Attorney ignorance or

inadvertence is not ‘cause’ because the attorney is the

petitioner’s agent when acting, or failing to act, in

furtherance of the litigation, and the petition must ‘bear the

risk of attorney error.’” Coleman, 501 U.S. at 753 (citation

omitted). Attorney error may, however, constitute cause if

the attorney’s failures constitute ineffective assistance of

counsel under the Sixth Amendment. See id. at 753–54

(“Attorney error that constitutes ineffective assistance of

counsel is cause, however.”). As the Supreme Court

explained in Murray, “if the procedural default is the result

of ineffective assistance of counsel, the Sixth Amendment

itself requires that responsibility for the default be imputed

to the State.” 477 U.S. at 488. This determination turns not

on “the gravity of the attorney’s error” but on whether “it

constitutes a violation of petitioner’s right to counsel, so that

the error must be seen as an external factor.” Coleman, 501

U.S. at 754.

HOGAN V. BEAN 39

Because there is no constitutional right to counsel in state

PCR proceedings, however, even egregious attorney error in

seeking state postconviction relief usually cannot constitute

cause. See Davila v. Davis, 582 U.S. 521, 524 (2017)

(“Because a prisoner does not have a constitutional right to

counsel in state postconviction proceedings, ineffective

assistance in those proceedings does not qualify as cause to

excuse a procedural default.”). There can be no Sixth

Amendment deprivation of the right to effective assistance

of counsel in proceedings for which the constitution does not

require counsel.

In Martinez v. Ryan, 566 U.S. 1 (2012), however, the

Supreme Court carved out a limited exception to the rule that

ineffective assistance of state PCR counsel cannot constitute

cause. In Arizona, a person alleging ineffective assistance

of trial counsel may not bring an IAC claim on direct review;

instead, a defendant must bring a trial IAC claim for the first

time in state PCR. See id. at 4. There are sound reasons for

a state to adopt such a rule.8 “Ineffective-assistance claims

often depend on evidence outside the trial record,” so

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

as effective as other proceedings for developing the factual

basis for the claim.” Id. at 13. “[B]ut this decision is not

without consequences for the State’s ability to assert a

procedural default in later proceedings.” Id.

Martinez held that where state law requires trial IAC

claims to be brought in state PCR in the first instance, “a

procedural default will not bar a federal habeas court” from

reviewing a trial IAC claim “if, in the initial-review

collateral proceeding, . . . counsel in that proceeding was

8

Nevada has done so. See Rodney v. Filson, 916 F.3d 1254, 1260 (9th

Cir. 2019).

40 HOGAN V. BEAN

ineffective.” Id. at 17; see also Shinn v. Ramirez, 596 U.S.

366, 371 (2022) (“[I]neffective assistance of postconviction

counsel is ‘cause’ to forgive procedural default of an

ineffective-assistance-of-trial-counsel claim, but only if the

State required the prisoner to raise that claim for the first

time during state postconviction proceedings.”). This

exception applies to “a single claim—ineffective assistance

of trial counsel—in a single context—where the State

effectively requires a defendant to bring that claim in state

postconviction proceedings” in the first instance. Davila,

582 U.S. at 524–25. Put differently, when a state relegates

trial-court IAC claims to state PCR proceedings, a claim of

ineffective state PCR counsel is akin to a claim of ineffective

direct-appeal counsel.

The Martinez exception is narrow. See Shinn, 596 U.S.

at 387 (“Martinez was ‘unusually explicit about the

narrowness of [the] decision’” and “foreclosed any

extension of its holding beyond the ‘narrow exception’ to

procedural default at issue in that case.” (citation omitted)).

Martinez’s “chief concern” was “to ensure that meritorious

claims of trial error receive review by at least one state or

federal court.” Davila, 582 U.S. at 532; see id. (“Martinez

was concerned that a claim of trial error—specifically,

ineffective assistance of trial counsel—might escape review

in a State that required prisoners to bring the claim for the

first time in state postconviction proceedings . . . .”).

Beyond this narrow exception, “attorney error where there is

no right to counsel,” such as in other state PCR proceedings,

“remains insufficient to show cause.” Shinn, 596 U.S. at

380.

HOGAN V. BEAN 41

In sum, a petitioner must satisfy four requirements to

benefit from the Martinez exception:

(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 [or

effectively requires] that an “ineffective

assistance of trial counsel [claim] . . . be

raised in an initial-review collateral

proceeding.”

Trevino v. Thaler, 569 U.S. 413, 423 (2013) (emphasis

omitted) (second and third alterations in original) (quoting

Martinez, 566 U.S. at 13–14, 15–18).

2. The Martinez exception applied to Hogan

The district court concluded that Hogan failed to

establish “cause” under Martinez for two reasons. First, the

district court observed that in Martinez, the procedural

default was based on state rules “barring successive

petitions,” while Hogan’s defaults “are based on the time

limitation imposed by [Nevada law].” Second, the district

court found that Hogan not only failed to raise the trial IAC

claims in his first PCR petition but also in his second PCR

petition, long after “the attorney who represented Hogan in

his first state habeas action” had concluded his

representation. Because Nevada’s timeliness bar did not go

into effect until January 1, 1993, see Pellegrini v. State, 34

42 HOGAN V. BEAN

P.3d 519, 525 (Nev. 2001), the district court reasoned that

Hogan would not have been procedurally barred for

timeliness reasons from raising his trial IAC claims in his

second petition. The district court thus decided that “there

is an insufficient causal connection between the alleged

ineffective assistance of Hogan’s first post-conviction

counsel and the procedural default at issue in this case,” and

that “[i]neffective assistance of counsel in Hogan’s first state

habeas action does not function as cause for the procedural

default of claims raised in Hogan’s third and fourth state

habeas actions.” We disagree with the district court on both

points.

First, we disagree that Martinez categorically does not

apply when the procedural default is based on a state

timeliness rule rather than a state prohibition on successive

petitions. Martinez articulated the standard for “cause” to

excuse a procedural default; it did not limit the types of

procedural default that initial-review IAC may excuse. See

Martinez, 566 U.S. at 18 (“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.” (emphasis added)). Limiting

the Martinez exception to cases in which the default was the

result of a second-or-successive bar would vitiate Martinez’s

purpose. Martinez’s equitable rule helps “ensure that

meritorious claims of trial error receive review by at least

one state or federal court.” Davila, 582 U.S. at 532.

Whether the result of a successive-petition bar or a

timeliness rule, a procedurally defaulted trial-court IAC will

otherwise “escape review in a State that require[s] prisoners

HOGAN V. BEAN 43

to bring their claim for the first time in state postconviction

proceedings.” Id. It is true that Martinez involved a

successive-petition prohibition, but the consequence of the

default there is no different from a case in which a lawyer

who waits too long to raise the trial IAC claim: “no state

court will ever review” the trial IAC claim. Id.

Nor do the cases limiting Martinez suggest that the type

of procedural default matters. To the contrary, the limits on

Martinez turn on the substance of the underlying claim for

habeas relief, such as when the petitioner alleges ineffective

assistance of appellate counsel. See Davila, 582 U.S. at 534

(“The Court in Martinez also was responding to an equitable

consideration that is unique to claims of ineffective

assistance of trial counsel and accordingly inapplicable to

claims of ineffective assistance of appellate counsel.”); see

id. at 535 (“Extending Martinez to defaulted claims of

ineffective assistance of appellate counsel would be

especially troublesome because those claims could serve as

the gateway to federal review of a host of trial errors, while

Martinez covers only one trial error (ineffective assistance

of trial counsel).”).

Second, we disagree with the district court that Hogan’s

failure to raise the trial IAC claims in his second petition

means that any ineffectiveness of his initial-review PCR

counsel cannot constitute “cause” for the procedural default.

As a threshold matter, the district court erred in reading

Martinez’s “cause” requirement to mean proximate

causation. “Cause” as it is used in Martinez refers not to tort

causation, but to “good cause,” as in, “[a] legally sufficient

reason” for “why a request should be granted.” Black’s Law

Dictionary (12th ed. 2024); see Martinez, 566 U.S. at 17

(describing a finding of “cause” as “allow[ing] a federal

court to consider the merits of a claim that otherwise would

44 HOGAN V. BEAN

have been procedurally defaulted”). In determining whether

a habeas petitioner has shown cause sufficient to overcome

a procedural default, we have repeatedly held that “cause”

refers to “a legitimate excuse for the default.” Magby v.

Wawrzaszek, 741 F.2d 240, 244 (9th Cir. 1984); Guillory v.

Allen, 38 F.4th 849, 858 (9th Cir. 2022); Thomas v. Lewis,

945 F.2d 1119, 1123 (9th Cir. 1991). The district court erred

in reading “cause” to demand a showing, akin to the

proximate cause requirement applied in the realm of torts, of

a causal connection between one default and the state court’s

refusal later to hear successive petitions.

To be sure, there must be some logical connection

between the postconviction IAC and the procedural default

to satisfy Martinez. To constitute “cause,” the

postconviction IAC must have “impeded or obstructed”

Hogan from “complying with the State’s established

procedures.” Martinez, 566 U.S. at 13 (2012); see also

Coleman v. Thompson, 501 U.S. 722, 753 (1991) (“[T]he

existence of cause for a procedural default must ordinarily

turn on whether the prisoner can show that some objective

factor external to the defense impeded counsel's efforts to

comply with the State's procedural rule.” (citation omitted)).

But the requirement that postconviction counsel’s IAC

impeded or obstructed a petitioner’s compliance with the

state’s procedural rules is not coextensive with the type of

causation requirement urged by the dissent and the district

court.

Here, the failure of Hogan’s first PCR counsel to raise

the relevant trial IAC claims impeded Hogan’s efforts to

comply with Nevada’s procedural rule that all

postconviction claims must be brought in the first PCR

petition. See NRS § 34.810(2); see also Hogan VI, 2012 WL

204641, at *1. That failure also impeded Hogan’s ability to

HOGAN V. BEAN 45

file a timely petition raising the trial IAC claims. Even if

Hogan’s second lawyer had raised the relevant trial IAC

claims in his second PCR petition, his claims would still be

procedurally defaulted under Nevada law. As we have

pointed out, Nevada does ordinarily preclude the filing of

second or successive petitions. So, had the trial IAC claims

been raised in Hogan’s second petition, they could have been

timely but second or successive and therefore procedurally

barred. This understanding of how Nevada law would have

operated in this instance is confirmed by the fact that when

the claims were raised in the third and fourth state petitions,

they were precluded as both successive and time barred.

And importantly, Nevada does not recognize the Martinez

exception under state law, so Hogan’s second PCR counsel

could not have excused the procedural default by arguing

that Hogan’s first PCR counsel was ineffective.9 See Brown

v. McDaniel, 331 P.3d 867, 869 (Nev. 2014) (“We conclude

that Martinez does not alter our prior decisions that a

petitioner has no constitutional right to post-conviction

counsel and that post-conviction counsel’s performance

does not constitute good cause to excuse . . . procedural

bars . . . .”); id. at 872 (“[I]neffective assistance of post-

conviction counsel does not establish cause for a habeas

petitioner’s procedural default . . . .”); Hogan VI, 2012 WL

204641, at *2 (holding that “an allegation of post-conviction

counsel’s ineffectiveness is not sufficient cause for filing

another petition,” so “Hogan [had] failed to demonstrate that

9

Our ruling turns on the particulars of Nevada law. We do not reach the

issue of whether the same result would follow if, for example, state law

recognized the Martinez exception in state PCR proceedings.

46 HOGAN V. BEAN

counsel’s ineffectiveness could excuse the untimely

petition”).10 9F

Although in the end we disagree with the district court,

we note that there are a number of procedural perplexities in

this case that make the availability of the Martinez gateway

difficult to ascertain. For one, traditionally, when a prisoner

presents a mixed habeas petition containing both exhausted

and unexhausted claims, the federal court will “stay and

abey”—that is, it will stay and hold in abeyance federal

habeas proceedings while the petitioner exhausts in state

court the remaining claims presented in the petition. When

the state court has disposed of the unexhausted claims, the

federal court may then resume proceedings and consider the

habeas petition in its entirety.

But the district court gave Hogan much more leeway

than in the typical habeas case, permitting serial substantive

amendments to Hogan’s federal habeas petition over the

course of more than two decades. In 1990, the district court

stayed proceedings on Hogan’s second amended federal

petition to allow him to exhaust his claims in state court.

Once the Nevada Supreme Court concluded its proceedings

in 1996, in the ordinary course, the district court should have

reopened the federal proceedings and ruled on Hogan’s

habeas petition. Instead, for reasons that are not apparent to

us on this record, the district court permitted new habeas

10

As this analysis shows, the dissent’s focus on the second PCR petition

as the relevant one for Martinez purposes, see Dissenting Op. at 92–93,

96–99, is incorrect. By not raising the trial IAC claims in the first PCR

petition, Hogan’s PCR counsel was precluded under Nevada law from

raising them in any later petition, absent an applicable exception. See

NRS § 34.810. It is that preclusion that is relevant for Martinez purposes,

not whether the lawyer who filed the second PCR petition should have

attempted to raise the procedurally defaulted trial IAC claims.

HOGAN V. BEAN 47

counsel to file third and fourth amended petitions to raise

fourteen new trial IAC claims; his third amended petition

was filed in 2001 and his fourth was filed in 2012—twenty-

three years after he filed his first amended federal petition.

Had the district court ruled promptly on Hogan’s second

amended federal petition and dismissed it, his third and

fourth petitions would be subject to the federal requirements

for filing a second or successive application and might well

have been dismissed under pre-AEDPA rules as an abuse of

the writ. See McCleskey, 499 U.S. at 479–89 (discussing the

abuse-of-the-writ doctrine); 28 U.S.C. § 2244(b) (current

rule); see also Delo v. Stokes, 495 U.S. 320, 321–22 (1990)

(vacating a stay of execution “because respondent’s fourth

federal habeas petition clearly constitutes an abuse of the

writ”). But Hogan’s 2001 and 2012 filings were accepted by

the district court not as new petitions, but amended petitions,

and “an amended petition, filed after the initial one but

before judgment, is not second or successive . . . . [but a]

further iteration[] of the first habeas application.”

Banister v. Davis, 590 U.S. 504, 512 (2020) (citations and

footnote omitted); see Slack, 529 U.S. at 486; Woods v.

Carey, 525 F.3d 886, 888–89 (9th Cir. 2008).

Generally, a party may amend its pleading once as a

matter of course. Fed. R. Civ. P. 15(a)(1). After that, it is

“only with the opposing party’s written consent or the

court’s leave,” and such leave should be “freely give[n] . . .

when justice so requires.” Fed. R. Civ. P. 15(a)(2); see 28

U.S.C. § 2242. Such amendments “relate[] back to the date

of the original pleading.” Fed. R. Civ. P. 15(c)(1). The

record does not disclose whether the state granted written

consent to Hogan to file his amended petitions or whether

the district court granted leave. If it was the latter, we do not

know what principles of equity or pre-AEDPA habeas

48 HOGAN V. BEAN

practice would have permitted the proceeding to be held

open for new counsel to file amendments eleven and twenty-

two years after Hogan filed his second amended petition.

See Rhines v. Weber, 544 U.S. 269, 271 (2005) (“[S]tay and

abeyance [of federal habeas petitions] should be available

only in limited circumstances.”); Blake v. Baker, 745 F.3d

977, 982 (9th Cir. 2014) (enumerating the required showing

under Rhines as (1) “good cause” for failing to exhaust

claims earlier; (2) “the unexhausted claims are potentially

meritorious”; and (3) lack of “intentional[] dilatory litigation

tactics” (quoting 544 U.S. at 278)). Nevertheless, if the state

had grounds for protesting the third and fourth amended

petitions, it has not raised such arguments to us, so any such

arguments are forfeited for purposes of this appeal.11 Under

Banister, the amended petitions relate back to the original

habeas petition, filed in 1989.

This unique procedural history assures us that our

holding today will not expand Martinez beyond its carefully

circumscribed limits.12

11

We note that some of the practices we find puzzling in this case would

likely not be permitted under AEDPA. AEDPA imposes a one-year

limitation on filing federal habeas petitions. See 28 U.S.C. § 2244(d)(1).

Any amendments filed after that time must relate to a “common core of

operative facts.” Mayle v. Felix, 545 U.S. 644, 664 (2005); see Walden

v. Shinn, 990 F.3d 1183, 1202–03 (9th Cir. 2021) (affirming denial of

leave to amend a habeas petition to add IAC claims where the claims

were untimely and turned on facts unique to each claim). This case was,

of course, filed before AEDPA became effective.

12

We are sympathetic to the dissent’s concerns. But the dissent fails to

mention Banister and how that case affects this case’s unique procedural

history. It is no surprise then that the dissent believes we are “extending

Martinez to possibly allow federal courts to consider claims of trial

HOGAN V. BEAN 49

3. Guidance on remand

The State has agreed with Hogan that if Martinez is

potentially available to him the district court is in the best

position to evaluate his claims. We have concluded that

Hogan has demonstrated that Martinez relief may be

available to him, and we agree with Hogan and the State that

Claims 2(A)–(G) and (I)–(O) should be remanded to the

district court for further proceedings consistent with this

opinion.

We here set forth some guidance for the district court on

remand. Martinez has given us a particularly complex set of

rules to apply, because it requires us to inquire into the

ineffective assistance of postconviction counsel for failing to

raise the ineffective assistance of trial counsel. It is a double

inquiry. On remand, the district court must first decide

whether Hogan’s first PCR counsel was constitutionally

ineffective for failing to raise the relevant trial-court IAC

claims. If it answers in the affirmative, it must then decide

whether Hogan’s trial counsel was unconstitutionally

ineffective. We have summarized Martinez’s holding as

follows:

Under Martinez, [the petitioner] must prove

both “cause” and “prejudice.” To

demonstrate “cause,” [the petitioner] must

show that “appointed counsel in the initial-

review collateral proceeding, where the claim

should have been raised, was ineffective

under the standards of Strickland v.

counsel IAC that were not raised in either the first or second state PCR

petition[.]” Dissenting Op. at 98. We are confident that our holding in

this pre-AEDPA case does not expand Martinez.

50 HOGAN V. BEAN

Washington.” Strickland in turn requires a

petitioner establish both (1) counsel’s

deficient performance and (2) prejudice. To

demonstrate prejudice under Strickland, the

petitioner “must show that there is a

reasonable probability that, but for counsel’s

unprofessional errors, the result of the

proceeding would have been different.” . . .

To establish “prejudice” under Martinez, the

underlying trial counsel IAC claim must also

be “a substantial one, which is to say . . . that

the claim has some merit.”

Michaels v. Davis, 51 F.4th 904, 930–31 (9th Cir. 2022) (per

curiam) (citations omitted).

To find “cause,” the district court must determine

whether Hogan’s first postconviction counsel, Maglaras,

was ineffective for failing to raise the ineffective assistance

of trial counsel. Judging the ineffective assistance of

postconviction counsel is subject to Strickland’s two-part

test: (1) deficient performance resulting in (2) prejudice.

See Smith v. Robbins, 528 U.S. 259, 285–86 (2000). If the

district court determines that postconviction counsel was

deficient, it then must assess Strickland prejudice. As a

practical matter, there will be “considerable overlap”

between the merits of the postconviction IAC claim and the

merits of the trial IAC claim. See Djerf v. Ryan, 931 F.3d

870, 880 (9th Cir. 2019). As we noted in Dickinson v. Shinn:

[T]he Martinez “cause” and “prejudice”

analyses overlap with each other because the

determination whether there is a “reasonable

probability that the result of the post-

HOGAN V. BEAN 51

conviction proceedings would have been

different” had post-conviction counsel raised

an issue is “necessarily connected to the

strength of the argument that trial counsel’s

assistance was ineffective.”

2 F.4th 851, 858 n.3 (9th Cir. 2021) (quoting Clabourne, 745

F.3d at 377); see also Atwood v. Ryan, 870 F.3d 1033, 1060

(9th. Cir. 2017) (“[A]ny deficient performance by state

habeas counsel would not have been prejudicial, because

there would not be a reasonable probability that the result of

the post-conviction proceedings would have been different

if the meritless claim had been raised.”). Therefore, to

determine whether the Martinez gateway allows federal

habeas review of a trial IAC claim, a federal court may have

to make some inquiry into the merits of the defaulted trial

IAC claim, as well as the performance of postconviction

counsel.

The standards for judging the performance of

postconviction counsel are not as well developed as the

standards for assessing the performance of trial counsel. The

ABA’s Death Penalty Guidelines set forth very general

standards for postconviction counsel without distinguishing

between counsel’s duties in the court of first review and an

appellate court; they also do not distinguish between post-

conviction-relief (PCR) or habeas counsel. See ABA,

Guidelines for the Appointment and Performance of Defense

Counsel in Death Penalty Cases 10.15.1(A) (rev. ed., ABA

2018) (referring to “[c]ounsel representing a capital client at

any point after conviction”). Those Guidelines state that

“[p]ost-conviction counsel should seek to litigate all issues,

whether or not previously presented, that are arguably

meritorious under the standards applicable to high quality

52 HOGAN V. BEAN

capital defense representation.” Id. 10.15.1(C); see also id.

10.15.1(E)(3) (postconviction counsel should “keep under

continuing review the desirability of modifying prior

counsel’s theory of the case in light of subsequent

developments”). The “arguably meritorious” standard

means that the claim is “not frivolous,” Anders v. California,

386 U.S. 738, 744 (1967), but it does not constitute the

standard for judging what issues are deserving of appellate

or postconviction review for purposes of determining the

effective assistance of counsel. Lee v. Thornell, 104 F.4th

120 (9th Cir. 2024) (“A violation of the ABA Guidelines

does not necessarily equate to a constitutional violation.”).

This principle has particular relevance when the issue

concerns the ineffective assistance of counsel, because the

Strickland test begins with the “strong presumption that that

counsel’s conduct falls within the wide range of reasonable

professional assistance.” Strickland, 466 U.S. at 689

(quotation marks and citation omitted). “There are countless

ways to provide effective assistance in any given case.” Id.

Accordingly, postconviction counsel must be afforded room

to judge what errors of trial counsel—who must also be

given the same “strong presumption” of professional

judgment—will be most persuasive in postconviction

review. This standard applies at two levels in the context of

Martinez, because a Martinez claim requires a district court

to determine that appellate or postconviction counsel was so

deficient in his investigation of the grounds for

postconviction review that he missed the deficient

performance of trial counsel.

If the district court determines that Hogan’s

postconviction counsel performed deficiently under

Strickland, the district court must still determine whether the

deficient performance—the failure to raise the IAC of trial

HOGAN V. BEAN 53

counsel—was prejudicial to Hogan’s petition for

postconviction relief. That requires a determination that

there is a “reasonable probability that the result of the post-

conviction proceedings would have been different.”

Clabourne, 745 F.3d at 377. If there is no ineffective

assistance of postconviction counsel, then there is no

“cause” under Martinez, and the analysis ends.

If the district court finds cause under Martinez, then the

district court must consider whether there is “prejudice”

under Coleman. That requires the district court to determine

whether Hogan’s underlying trial IAC claims are substantial.

We have said that the showing required to establish a

“substantial” trial IAC claim “is comparable to the standard

for granting a certificate of appealability pursuant to 28

U.S.C. § 2253(c)(2); a petitioner ‘need show only that jurists

of reason could disagree with the district court’s resolution

of his constitutional claims.’” Smith v. Baker, 983 F.3d 383,

396 (9th Cir. 2020) (quoting Runningeagle v. Ryan, 825 F.3d

970, 983 n.14 (9th Cir. 2016) (internal quotation marks and

citation omitted)); see Michaels, 51 F.4th at 930 (“[A]

conclusion on the merits of an ineffective assistance of trial

counsel claim under Strickland holds a petitioner to a higher

burden than required in the Martinez procedural default

context . . . .”).11F

On remand, the district court should proceed in this

manner to determine whether it is appropriate to reach the

merits of the trial counsel IAC claims, Claims 2(A)-(G) and

(I)-(O).

IV. UNCERTIFIED ISSUES

Hogan also argues that we should expand the certificate

of appealability to include five uncertified issues. Ninth Cir.

R. 22-1(e). To expand the COA, Hogan must demonstrate a

54 HOGAN V. BEAN

“substantial showing of the denial of a constitutional right.”

Hiivala v. Wood, 195 F.3d 1098, 1104 (9th Cir. 1999)

(quoting 28 U.S.C. § 2253(c)(2)). In other words, he must

show that “the issues are debatable among jurists of reason;

that a court could resolve the issues [in a different manner];

or that the questions are adequate to deserve encouragement

to proceed further.” Mendez v. Knowles, 556 F.3d 757, 770–

71 (9th Cir. 2009) (alteration in original) (citation omitted).

For the reasons explained below, we will grant a COA with

respect to Uncertified Claim 1 (Claims 5(A) and (B)) but

deny a COA as to Uncertified Claim 2 (Claim 10),

Uncertified Claim 3 (Claims 11(C) and (D)), Uncertified

Claim 4 (Claim 25), and Uncertified Claim 5 (Claim 26).

A. Uncertified Claim 1: Did the District Court Err in

Dismissing Hogan’s Challenge to the Aggravating

Circumstances (Claims 5(A) and (B)) as Procedurally

Defaulted?

At the penalty phase of Hogan’s capital trial, the jury

found two aggravating circumstances: (1) Hogan was

previously convicted of a felony involving the use or threat

of violence, NRS § 200.033(2); and (2) Hogan knowingly

created a great risk of death to more than one person, id.

§ 200.033(3). In support of the first aggravator, the State

relied on Hogan’s Iowa conviction for manslaughter. In

support of the second aggravator, the State relied on Hogan’s

attack on Brown after he had shot Hinkley. Hogan

challenged both aggravators at trial; again on direct appeal,

Hogan I, 732 P.2d at 423B24; and in his second, third, and

fourth state postconviction petitions, Hogan III, 860 P.2d at

714–15; Hogan V, 178 P.3d 764 (Table); Hogan VI, 2012

WL 204641, at *4–5.

HOGAN V. BEAN 55

In Claim 5 of Hogan’s fourth amended habeas petition,

which is the operative petition for our purposes, he divided

his claim into three subclaims related to the aggravators. In

Claim 5(A), Hogan argued his death sentence must be set

aside because his prior conviction was invalid. In Claim

5(B), Hogan asserted that the aggravating circumstance

alleging that he knowingly created a great risk of death to

more than one person was unsupported by the evidence and

was unconstitutionally vague. In Claim 5(C), Hogan alleged

that, in light of the two invalid aggravating circumstances,

he is actually innocent of the death penalty.

The district court analyzed Claim 5 as “a single, unified

claim that [Hogan] is actually innocent of the death penalty,”

and concluded the claim was procedurally defaulted because

it was not raised until Hogan’s third state postconviction

petition. On appeal, Hogan argues that these three subclaims

are discrete, and that by construing the claim as one, the

district court overlooked Hogan’s procedural actual

innocence claim that would help him overcome procedural

default.1213 To demonstrate that he is actually innocent of the

death penalty, Hogan “must show by clear and convincing

evidence that, but for a constitutional error, no reasonable

juror would have found the petitioner eligible for the death

penalty under the applicable state law.” Sawyer v. Whitley,

505 U.S. 333, 336 (1992).

From reviewing the vast record before us, it is clear that

Hogan has not consistently argued that these claims are

distinct. Although Hogan has not been consistent, we

nevertheless conclude that Hogan plausibly alleged three

13

Hogan does not appeal the dismissal of Claim 5(C) (substantive actual

innocence).

56 HOGAN V. BEAN

discrete claims within Claim 5.13F14 The arguments

challenging each aggravator are legally and factually

distinct. In Claim 5(A), Hogan challenged the crime-of-

violence aggravator, which refers to his Iowa conviction. He

argued that his Iowa conviction was invalid; that evidence of

violence was not presented to the jury; and that the

aggravating circumstance was unconstitutionally vague

because Nevada law did not define “violent felony.” Hogan

also argued that he received ineffective assistance because

his trial counsel failed to investigate and challenge his Iowa

conviction. In Claim 5(B), Hogan challenged his great-risk-

of-death aggravator, which turns on his attempt to murder

Hinkley’s teenage daughter and the most important witness

to the murder, Shelley Brown. Hogan argued that this

aggravator did not factually apply to him, that it was

unconstitutionally vague, and that it resulted in an unreliable

sentence. The Nevada Supreme Court treated each of these

claims as distinct claims on direct review, and on his second,

third, and fourth state postconviction petitions. Hogan I, 732

P.2d at 423–24 (addressing the crime-of-violence

aggravator); id. at 424 (addressing the great-risk-of-death

aggravator); Hogan III, 860 P.2d at 712–14 (addressing the

crime-of-violence aggravator); id. at 714–15 (addressing the

great-risk-of-death aggravator); Hogan V, 178 P.3d 764

(Table), at *3 (addressing the crime-of-violence aggravator);

id. at *4 (addressing the great-risk-of-death aggravator);

14

For example, in Hogan’s opposition to Nevada’s motion to dismiss,

Hogan initially referred to Claim 5 as a single claim. But later in the

opposition, Hogan asserted that he “presented the entirety of Claim 5(A)

on direct appeal” and that AClaim 5(B) was considered and rejected on

the merits by the Nevada Supreme Court.” Hogan later asserted that

Claim 5 represents three separate claims in his motion to alter or amend

the judgment.

HOGAN V. BEAN 57

Hogan VI, 2012 WL204641, at *5 (addressing the crime-of-

violence aggravator); id. at *4 (addressing the great-risk-of-

death aggravator). In the operative petition, Claim 5(C) was

a single paragraph, stating that because the aggravating

circumstances were invalid, Hogan was actually innocent of

the death penalty and he had shown good cause and

prejudice. The Nevada Supreme Court rejected a similar

argument on postconviction review. See Hogan III, 860 P.2d

at 715–16 (concluding that Hogan had not shown good cause

and prejudice under NRS § 34.810(3)); see also Hogan V,

178 P.3d 764 (Table), at *3. Hogan asserted in his

conclusion that imposing the death sentence based on these

invalid aggravators would violate due process or the Eighth

Amendment.

Reasonable jurists could disagree whether Claims 5(A)

and (B) were procedurally defaulted because they were not

raised as one claim until the third state postconviction

petition. We therefore grant Hogan’s motion to expand the

COA to include this issue. We now turn to the district

court’s treatment of Claims 5(A) and (B).

1. Did Hogan exhaust Claims 5(A) and (B)?

Federal habeas review requires that each claim be

exhausted. In other words, “[e]xhaustion requires that a

petitioner fairly present his federal claims to the highest state

court available.” Walden, 990 F.3d at 1196 (quoting Davis

v. Silva, 511 F.3d 1005, 1008 (9th Cir. 2008)).

Hogan raised Claim 5(A) and Claim 5(B) in his direct

appeal, and again in his state postconviction petitions. The

Nevada Supreme Court therefore had a full opportunity to

resolve Hogan’s claims. See, e.g., Hogan I, 732 P.2d at 423–

24; Hogan III, 860 P.2d at 712–15. It concluded that Claim

5(A) failed because “there was substantial evidence to

58 HOGAN V. BEAN

support the finding by the jury that the State had proved the

existence of this aggravating circumstance beyond a

reasonable doubt.” Hogan III, 860 P.2d. at 714. It also

rejected Claim 5(B):

Under the “course of action” aspect of NRS

[§] 200.033(3), the statute is satisfied if the

perpetrator knowingly creates a great risk of

death to more than one person by embarking

upon a course of conduct that would normally

be hazardous to the lives of more than one

person. Obviously, one who intends to

commit multiple murders within a closely

related time and place engages in a course of

conduct inherently hazardous to the life of

more than one person. As we held in the

opinion generated from Hogan’s direct

appeal, there was no error in finding that

Hogan had engaged in criminal conduct

falling within the purview of the aggravating

circumstance defined by NRS [§] 200.033(3).

Id. at 715. In addition, the Nevada Supreme Court cited

Supreme Court caselaw to resolve Hogan’s claim that his

guilty plea in Iowa was defective, both on direct appeal,

Hogan I, 732 P.2d at 423–24 (citing Henderson v. Morgan,

426 U.S. 637, 647 (1976)), and in its consideration of his

second petition for postconviction relief, Hogan III, 860

P.2d at 713 & n.1 (citing Boykin v. Alabama, 395 U.S. 238

(1969)). Because it upheld both aggravating circumstances,

the Nevada Supreme Court also rejected Hogan’s contention

that “he is therefore actually ‘innocent’ of committing a

capital crime.” Id. at 712. Thus, the Nevada Supreme Court

“actually considered and decided” Hogan’s federal rights

HOGAN V. BEAN 59

regarding Claims 5(A) and 5(B), Sandgathe v. Maass, 314

F.3d 371, 377 (9th Cir. 2002) (quoting Orr v. Orr, 440 U.S.

268, 274–75 (1978)), and these claims were properly

exhausted.

2. Does procedural default preclude federal review of

Claims 5(A) and (B)?

Claims 5(A) and (B) were declared procedurally

defaulted by the Nevada Supreme Court. The court

dismissed Hogan’s second postconviction petition as

procedurally barred and an “abuse of the writ.” Hogan III,

860 P.2d at 716. It also concluded that Hogan “failed to

demonstrate a basis for habeas relief under the exceptional

provisions of NRS [§] 34.810.” Id. at 715. As part of the

analysis for “exceptional provisions” under NRS § 34.810,

the Nevada Supreme Court considered whether Hogan was

“actually innocent” of the death penalty. Id. It concluded

that “Hogan has simply failed to meet his burden of proving

‘by clear and convincing evidence that but for a

constitutional error, no reasonable juror would have found

the petitioner eligible for the death penalty under the

applicable state law.’” Id. at 716 (quoting Sawyer, 505 U.S.

at 336).

The Nevada Supreme Court’s declaration that Hogan’s

claims were procedurally defaulted does not necessarily

preclude our review on the merits. Federal courts are

prohibited from reviewing a claim subject to a state

procedural default only if the state-court grounds are

independent of federal law and adequate to support the

judgment. Robinson v. Ignacio, 360 F.3d 1044, 1051 (9th

Cir. 2004). “[W]e merely assume that there are no such

grounds when it is not clear from the opinion itself that the

state court relied upon an adequate and independent state

60 HOGAN V. BEAN

ground and when it fairly appears that the state court rested

its decision primarily on federal law.” Michigan v. Long,

463 U.S. 1032, 1042 (1983).

Hogan argues that he can overcome any procedural

default of Claims 5(A) and (B) because the 1993 opinion was

ambiguous in its reasoning regarding the dismissal of

Hogan’s petition and because the Nevada procedural rule

was inadequate.14F15 We need not decide whether the Nevada

Supreme Court’s decision was ambiguous, however,

because we have previously held that, for the period in

question here, the Nevada procedural rules were inadequate.

For a state-law procedural rule to be adequate, “[the] rule

must be clear, consistently applied, and well-established at

the time of petitioner’s purported default.” Bargas v. Burns,

179 F.3d 1207, 1211 (9th Cir. 1999) (quoting Wells v.

Maass, 28 F.3d 1005, 1010 (9th Cir. 1994)). In Valerio v.

Crawford, we held, sitting en banc, that as of 1990 when

Hogan filed his second state petition, “there was no clear,

consistently applied, and well-established rule in capital

cases that prevented the Nevada Supreme Court from

addressing constitutional claims on the ground that those

claims had not been presented in earlier proceedings.” 306

F.3d 742, 778 (9th Cir. 2002) (en banc) (internal quotation

marks omitted). We concluded that, at that time, the Nevada

Supreme Court “exercised a general discretionary power to

address” defaulted constitutional claims and so Nevada’s

successive-petition bar was “not adequate to bar federal

review in capital cases.” Id.; see also Sechrest v. Ignacio,

549 F.3d 789, 803 (9th Cir. 2008) (“NRS 34.810 is

15

Although he challenged it below, Hogan does not challenge the

independence of Nevada’s procedural rules on appeal.

HOGAN V. BEAN 61

inadequate to bar federal habeas review of the claims

deemed procedurally defaulted . . . .”).

5Here, Hogan’s alleged procedural default of Claims 5(A)

and (B) was recognized by the Nevada Supreme Court in

1993. See Hogan III, 860 P.2d at 712. Because we held in

Valerio that Nevada’s procedural rules were not consistently

applied as of 1990 and so could not constitute an adequate

state ground, we conclude that any procedural default by the

time of Hogan III in 1993 does not bar our review on the

merits.16

3. Is Hogan entitled to relief?

We finally reach the merits of Hogan’s challenge to the

two aggravating circumstances.

a. Conviction for a previous crime of violence

NRS § 200.033(2)(b) provides that any conviction of a

“felony involving the use or threat of violence to the person

of another” qualifies as an aggravating circumstance for

first-degree murder. Hogan argues that this aggravator does

not apply to him because the Iowa conviction was invalid.

16

More recently, the Supreme Court has held that procedural rules that

the state court may vary in its discretion can still be “firmly established”

and “regularly followed.” See, e.g., Johnson v. Lee, 578 U.S. 605, 606–

09 (2016) (per curiam) (holding that California’s bar on claims raised for

the first time on collateral review was adequate, despite the fact that state

courts could exercise discretion to reach the merits despite the default);

Walker v. Martin, 562 U.S. 307, 316–21 (2011) (holding that

California’s timeliness requirement qualified as an adequate state ground

for the same reasons). We have not had cause to consider the adequacy

of Nevada’s successive petition bar in light of these holdings and do not

do so now.

62 HOGAN V. BEAN

Hogan’s direct challenge to the Iowa conviction is not

cognizable. The Supreme Court has held “that once a state

conviction is no longer open to direct or collateral attack in

its own right because the defendant failed to pursue those

remedies while they were available (or because the

defendant did so unsuccessfully), the conviction may be

regarded as conclusively valid.” Lackawanna Cnty. Dist.

Att’y v. Coss, 532 U.S. 394, 403 (2001); see also West, 652

F.3d at 1081 (applying Lackawanna to capital cases).

Although Lackawanna recognized several exceptions to this

rule—such as “where there was a failure to appoint counsel

in violation of the Sixth Amendment”—none are applicable

here. 532 U.S. at 404–06. So we have no authority to

reexamine the underlying Iowa conviction which provided

the basis for the crime-of-violence aggravator.

b. Knowingly creating a great risk of death to more

than one person

Hogan argues that he did not knowingly create a great

risk of death to more than one person, and that this

aggravator was unconstitutionally vague. We reject both

arguments.

NRS § 200.033(3) provides an aggravating circumstance

to first-degree murder where “[t]he murder was committed

by a person who knowingly created a great risk of death to

more than one person by means of a weapon, device or

course of action which would normally be hazardous to the

lives of more than one person.” Hogan argues that the

shootings of Hinkley and Brown were “discrete seriatim

act[s], which endangered only one person at a time.” The

Nevada Supreme Court addressed this issue on direct appeal:

HOGAN V. BEAN 63

While there is a divergence of authority on

this question, we believe that the statute

includes a “course of action” consisting of

two intentional shootings closely related in

time and place, particularly where the second

attack may have been motivated by a desire

to escape detection in the original

shooting. . . . Thus, there was no error.

Hogan I, 732 P.2d at 424 (citations omitted).

Hogan argues that the Nevada Supreme Court ignored

Jimenez v. State, 775 P.2d 694 (Nev. 1989), in its

consideration of his postconviction petition. We have no

basis for reviewing the Nevada Supreme Court’s

determination of state law. Peltier, 15 F.3d at 862. The only

basis for reviewing a state’s construction of its own law is

when the construction is “an obvious subterfuge to evade the

consideration of a federal issue.” Id. (citing Mullaney, 421

U.S. at 691); see Creech v. Richardson, 59 F.4th 372, 389–

90 (9th Cir. 2023). There is no obvious subterfuge in the

Nevada Supreme Court’s treatment of Jimenez. Jimenez

involved a stabbing, not a shooting, and a perpetrator who

used two different weapons. 775 P.2d. at 697. The court

found that the characteristics of the murder weapon

counseled against the imposition of the great-risk

aggravator:

The first aggravating circumstance found by

the jury was that the stabbing of these two

victims with two different knives constituted

the aggravated circumstance on the part of

Jimenez of knowingly creating a great risk of

death to more than one person by means of a

64 HOGAN V. BEAN

weapon, device or course of action which

would normally be hazardous to the lives of

more than one person. This aggravating

circumstance contemplates the use of a

weapon or device that, by its nature or the

circumstances of its use, “would normally be

hazardous to the lives of more than one

person.” NRS [§] 200.033(3). Stabbing two

persons with two different knives, even if

Jimenez did both stabbings, does not make

either knife a weapon or device that is

normally dangerous to a multiplicity of

persons. Finally, even if, conceivably, a

knife could be used under circumstances that

would endanger the lives of more than one

person in a single course of action, such was

not the case here. Jimenez, if acting alone,

would have had to stab one victim and then

turn his attention to stabbing another. Under

such a scenario, even a rock could have been

used to kill both victims and thus improperly

claimed to constitute a basis for an

aggravating circumstance under NRS [§]

200.033(3).

Id. at 697–98 (emphasis omitted in part and added in part).

Jimenez distinguished two other Nevada Supreme Court

cases with facts much closer to Hogan’s. In Moran v. State,

734 P.2d 712 (Nev. 1987), the Nevada Supreme Court

concluded that firing a gun at the victim with another person

nearby satisfied the requirements of NRS § 200.033(3). Id.

at 715; see Jimenez, 775 P.2d at 697. And in Nevius v. State,

699 P.2d 1053 (Nev. 1985), the Nevada Supreme Court

HOGAN V. BEAN 65

upheld the great-risk aggravator for a defendant who

attempted to shoot the victim while the victim’s wife was in

the same room. Id. at 243; see Jimenez, 775 P.3d at 698.

The Nevada Supreme Court discussed Moran in its decision

on Hogan’s postconviction petition and concluded that

“Moran alone would validate the finding of the NRS

[§] 200.033(3) aggravator in the instant case where Hogan

knew, as he fired his gun at his murder victim, that the

victim’s teenage daughter was in close proximity to the

crime scene.” Hogan III, 860 P.2d at 714. We can discern

no evidence that the Nevada Supreme Court’s analysis

sought to avoid federal review.

We also reject Hogan’s challenge to this aggravating

circumstance as unconstitutionally vague. When a statute is

challenged as vague without implicating the First

Amendment, “we do not consider whether the statute is

unconstitutional on its face.” United States v. Purdy, 264

F.3d 809, 811 (9th Cir. 2001). Rather, “our concern is

whether the [statute] is impermissibly vague in the

circumstances of this case.” Id. (alteration in original)

(emphasis omitted) (quoting United States v. Ocegueda, 564

F.2d 1363, 1365 (9th Cir. 1977)).

Nothing in NRS § 200.033(3) as applied to Hogan is

vague. The statute clearly covers a person who shoots and

kills one person while others are present, and then attempts

to silence a potential witness using the same weapon in the

same manner. Such actions “would normally be hazardous

to the lives of more than one person,” Hogan III, 860 P.2d at

715, and fall squarely within the statutory definition. Thus,

Hogan was properly on notice that this statutory aggravating

circumstance could apply to him. We agree with the Nevada

Supreme Court that Hogan’s vagueness challenge “is

meritless.” Hogan I, 732 P.2d at 424 n.3.

66 HOGAN V. BEAN

B. Uncertified Claim 2: Did the District Court Err in

Dismissing Hogan’s Sixth Amendment Right to

Confrontation Claim (Claim 10)?

Hogan asks us to issue a COA on his claim that the trial

court’s admission of several out-of-court statements violated

his Sixth Amendment right to confront his accusers. We will

address each challenged statement in turn.

At the time of Hogan’s trial, the standard for

Confrontation Clause questions was Ohio v. Roberts, 448

U.S. 56 (1980), which was later abrogated by Crawford v.

Washington, 541 U.S. 36, 68 (2004). Crawford held that

“[w]here testimonial evidence is at issue, . . . the Sixth

Amendment demands what the common law required:

unavailability and a prior opportunity for

cross-examination.” Id. However, Crawford was not made

retroactive on collateral review. Whorton v. Bockting, 549

U.S. 406, 417 (2007) (“Because Crawford announced a ‘new

rule’ and because it is clear and undisputed that the rule is

procedural and not substantive, that rule cannot be applied

in this collateral attack on respondent’s conviction unless it

is a ‘watershed rul[e] of criminal procedure’ . . . .” (internal

citations omitted)). We therefore apply Roberts as the

standard here.

Roberts held that out-of-court statements are admissible

if (1) the declarant is unavailable and (2) the statements bear

adequate indicia of reliability. The Court explained:

[T]he Sixth Amendment establishes a rule of

necessity. In the usual case (including cases

where prior cross-examination has occurred),

the prosecution must either produce, or

demonstrate the unavailability of, the

HOGAN V. BEAN 67

declarant whose statement it wishes to use

against the defendant.

The second aspect operates once a witness is

shown to be unavailable. Reflecting its

underlying purpose to augment accuracy in

the factfinding process by ensuring the

defendant an effective means to test adverse

evidence, the Clause countenances only

hearsay marked with such trustworthiness

that “there is no material departure from the

reason of the general rule.”

Roberts, 448 U.S. at 65 (citations omitted) (quoting Snyder

v. Massachusetts, 291 U.S. 97, 107 (1934)).

Hogan argues that hearsay statements admitted from

Hinkley failed to meet this standard because they are not

excited utterances. Additionally, he argues that the

statements admitted from Dr. Green are inadmissible

because the government failed to show that Dr. Green was

unavailable.

Hogan did not present the Confrontation Clause

arguments as to Hinkley to the Nevada Supreme Court

(although he did argue that the statements were inadmissible

hearsay), so those claims are unexhausted. See Rose v.

Lundy, 455 U.S. 509, 515–16 (1982). Nevertheless, we

address Hogan’s claim on the merits, because it fails all the

same. Cf. 28 U.S.C. § 2254(b)(2) (“An application for a writ

of habeas corpus may be denied on the merits,

notwithstanding the failure of the applicant to exhaust the

remedies available in the courts of the State.”). Hogan did

present the Confrontation Clause argument as to Dr. Green’s

68 HOGAN V. BEAN

prior testimony, so we review under the pre-AEDPA de novo

standard.

1. Hinkley’s statement to her daughter, Shelley Brown

First, Hogan challenges Hinkley’s statement to her

daughter the night of the murder. Brown testified that

Hinkley woke her up around 3:00 a.m. on November 19,

1984, and stated that “[Hogan] just threatened to kill me.”

Prior to Brown’s statement, the court noted that hearsay

objections made to the anticipated statements in earlier

motions were overruled. Hogan’s counsel again objected

when Brown was asked to describe a phone call Hinkley

made. The prosecutor withdrew the question, and the court

never ruled on that objection.

On direct appeal, the Supreme Court ruled that this

statement was admissible under NRS § 51.095, Nevada’s

“excited utterance” exception to the hearsay rule. Hogan I,

732 P.2d at 423. The district court, applying AEDPA, found

Nevada’s determination objectively reasonable and denied

Hogan’s claim on that basis. Upon reconsideration, the

Court applied pre-AEDPA standards, but found that a less

deferential review of the state court’s decision did not

change its conclusion.

The Nevada Supreme Court found that this statement

occurred “just after” Hogan threatened Hinkley. Hogan I,

732 P.2d at 423. We owe significant deference to the state

court’s factfinding. See Summerlin, 427 F.3d at 629. This

statement bears sufficient indicia of reliability because the

excited utterance exception is “a firmly rooted hearsay

exception.” Roberts, 448 U.S. at 66; see also Fed. R. Evid.

803(2); White v. Illinois, 502 U.S. 346, 355 (1992)

(spontaneous declarations are firmly rooted hearsay

exceptions “that provide substantial guarantees of their

HOGAN V. BEAN 69

trustworthiness.”). We conclude that Hogan has not made a

substantial showing of the denial of his Confrontation Clause

rights. 28 U.S.C. § 2253(c)(2); see Slack, 529 U.S. at 484.

2. Hinkley’s statement to Elaine Lundmark

Second, Hogan challenges Hinkley’s statement to

Hinkley’s friend and neighbor, Elaine Lundmark.

Lundmark testified that Hinkley said “that Michael [Hogan]

had pulled a gun out, and that she had woken [her daughter]

up from sleep and brought her to [Lundmark’s] house for

safety” and also “that he had pulled a gun on her and said

that he was going to kill her.” Hogan’s counsel objected on

the grounds of “hearsay and confrontation.”117 The State

proffered the statements as excited utterances, and the court

overruled the objection.

As with Brown’s statement, the Nevada Supreme Court

ruled that this statement was admissible under Nevada’s

“excited utterance” exception to the hearsay rule. See NRS

§ 51.095; Hogan I, 732 P.2d at 423. And the district court

found no error.

Hogan now argues that the delay between the threat and

Hinkley’s statement to Lundmark undermines the argument

that Hinkley’s statement was an excited utterance.

According to the record, Hinkley had an hour to reflect or

discuss the threat before she spoke to Lundmark, and she

made the statement approximately an hour after Hinkley told

Shelley of Hogan’s threat. Lundmark said at the time

17

The quoted language is from Lundmark’s testimony before the jury on

May 14, 1985. The cited objection was apparently made outside the

presence of the jury on May 13, during Lundmark’s testimony at an

evidentiary hearing conducted on a motion to suppress a seized gun.

70 HOGAN V. BEAN

Hinkley made this statement, Hinkley and Shelley were

“very upset, crying, [and] shaking.”

Traditionally, a spontaneous statement is reliable

because it is given “without the opportunity to reflect on the

consequences of one’s exclamation.” Winzer v. Hall, 494

F.3d 1192, 1198 (9th Cir. 2007) (quoting White, 502 U.S. at

356). Because the one-hour pause gave Hinkley the chance

to talk to Brown and an “opportunity to reflect,” White, 502

U.S. at 356, we are willing to assume that this statement is

not an excited utterance. But our assumption does not

change anything because any error from this statement’s

admission was harmless. Hogan cannot show that he was

prejudiced by Hinkley’s statement to Lundmark because

there was substantial evidence in the record of premeditation

and deliberation. Two additional witnesses, Schneider and

Green, testified that they heard Hogan threaten to kill

Hinkley during the California trip. Both witnesses testified

that they heard similar threats from Hogan more than once.

Brown testified that the night of the murder, Hogan

threatened to break down her door if Brown did not open it.

Later that night, Brown heard Hinkley tell Hogan that he

would have to move out of the house. Within a few minutes,

Brown heard a gunshot and Hinkley yelled at Brown to run.

Then Hogan shot Brown several times, with the same gun he

used to kill Hinkley. The uncontested evidence clearly

shows that Hogan premeditated the attack on Hinkley and

Brown. Because any hearsay testimony is cumulative to

threats reported by other witnesses, any error from its

admission was harmless. Brecht v. Abrahamson, 507 U.S.

619, 637 (1993).

HOGAN V. BEAN 71

3. Dr. Giles Sheldon Green’s preliminary hearing

testimony

Third, Hogan argues that Dr. Green’s preliminary

hearing testimony regarding Hinkley’s autopsy should not

have been admitted at trial. Hogan also argues that Nevada

failed to prove that Dr. Green was unavailable or that his

prior testimony was reliable.

Dr. Green was the medical examiner who performed

Hinkley’s autopsy. Dr. Green was unavailable to testify at

trial due to emergency quadruple bypass heart surgery. At

trial, over Hogan’s counsel’s objection, the court allowed

Dr. Green’s preliminary hearing testimony to be read into

the record. The district court found that, because Hogan’s

counsel cross-examined Dr. Green at the preliminary

hearing, Dr. Green’s prior testimony bore sufficient “indicia

of reliability” to be properly admitted under Ohio v. Roberts,

448 U.S. 56, 73 (1980). Moreover, the district court found

that the Confrontation Clause did not require the trial court

to postpone the trial to ensure the availability of Dr. Green.

Lastly, the court noted that, even assuming there was a

Confrontation Clause violation, any error was harmless

given the overwhelming evidence of Hogan’s guilt.

We find no Confrontation Clause error here. Dr. Green

was clearly unavailable. Under Barber v. Page, the

prosecution can demonstrate that a witness is unavailable if

it made a good-faith effort to obtain his presence at trial. 390

U.S. 719, 724–25 (1968). Here, all parties conceded that Dr.

Green could not testify at trial because he had undergone

emergency quadruple bypass heart surgery. The

prosecutor’s office “maintained continuous weekly contact”

with the medical examiner’s office and confirmed that the

earliest Dr. Green could be available to testify was late July

72 HOGAN V. BEAN

1985. These efforts to secure Dr. Green’s live testimony and

to establish his unavailability were reasonable. See Roberts,

448 U.S. at 74. The prosecution therefore made a “good-

faith effort” to reach Dr. Green and met its burden to

establish that Dr. Green was unavailable. Barber, 390 U.S.

at 724–25.

Dr. Green’s statements also have sufficient indicia of

reliability. Under Dres v. Campoy, 784 F.2d 996, 1001 (9th

Cir. 1986), prior testimony is reliable if the defendant had

the opportunity to cross-examine the witness at a prior

hearing. See also Mancusi v. Stubbs, 408 U.S. 204, 216

(1972). Here, Hogan not only had the opportunity to cross-

examine him at the preliminary hearing—Hogan did in fact

cross-examine him. Indeed, Hogan’s counsel asked Dr.

Green specific questions regarding potential causes for

Hinkley’s bruises at the preliminary hearing. Thus, Dr.

Green’s testimony was not admitted in error.

We deny Hogan’s request to expand the COA to include

these claims because he has failed make “a substantial

showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c).

C. Uncertified Claim 3: Did the District Court Err in

Dismissing Hogan’s Instructional Error Claims (Claims

11(C) and (D))?

Hogan’s third uncertified claim relates to jury

instructional errors at the penalty phase of trial. Hogan

claims that the two jury instructions—one given and one

omitted—rendered his sentencing proceeding

constitutionally deficient. succeed in challenging these jury

instructions, Hogan must show that the “error ‘had

substantial and injurious effect or influence in determining

HOGAN V. BEAN 73

the jury’s verdict.’” Brecht, 507 U.S. at 623 (quoting

Kotteakos v. United States, 328 U.S. 750, 776 (1946)).

1. Anti-sympathy instruction

Before jury deliberation at the sentencing proceeding,

the trial court instructed the jury as follows:

A verdict may never be influenced by

sympathy, prejudice or public opinion. Your

decision should be the product of sincere

judgment and sound discretion in accordance

with these rules of law.

Hogan’s counsel objected and proposed an alternative

instruction that enumerated twelve mitigating circumstances

that the jury could consider. Hogan argues the anti-

sympathy instruction precluded the jury from considering

mitigating circumstances, such as mental disorders and

family relationships that might naturally stir sympathetic

feelings from the jury.

In addition to the anti-sympathy instruction, the jury also

heard the following instruction on mitigating circumstances:

Murder of the First Degree may be mitigated

by any of the following circumstances, even

though the mitigating circumstance is not

sufficient to constitute a defense or reduce the

degree of the crime:

(1) The murder was committed while the

defendant was under the influence of

extreme mental or emotional disturbance.

74 HOGAN V. BEAN

(2) Any other mitigating circumstance.

Hogan argues that this mitigating circumstance instruction

was vague and contradictory to the anti-sympathy

instruction, which left the jurors confused about the role of

mitigating circumstances.

Hogan raised this same claim on direct appeal, and the

Nevada Supreme Court rejected the claim. Hogan I, 732

P.2d at 424–25. Below, the district court initially applied

AEDPA and held it must defer to the state court’s

determination, given there is no clearly established federal

law holding an anti-sympathy instruction violates a

defendant’s constitutional rights. On reconsideration, the

district court applied pre-AEDPA standards but still found

no convincing legal authority for granting habeas relief

based on the anti-sympathy instruction.

We cannot discern how the anti-sympathy instruction, or

the anti-sympathy instruction in combination with the

mitigating circumstances instruction, could have had an

“injurious effect” on the verdict. The trial court’s instruction

to disregard sympathy also could have prevented the jury

from considering sympathy for the victim or the victim’s

family. See id. at 425 (“[S]uch an instruction is not without

benefit to a defendant since it precludes a jury from selecting

a penalty provoked by sympathy for victims or their

survivors.”). In this way, excluding sympathy from the

jury’s consideration may have benefitted Hogan. Further,

the Supreme Court has concluded that an anti-sympathy

instruction does not violate the Eighth and Fourteenth

Amendment principle prohibiting the State from barring

relevant mitigating evidence during the penalty phase. See

Saffle v. Parks, 494 U.S. 484, 489–91 (1990). And the Court

has rejected the argument that an anti-sympathy instruction

HOGAN V. BEAN 75

may cause a rational juror to disregard mitigating evidence.

California v. Brown, 479 U.S. 538, 542–43 (1987), holding

modified by Boyde v. California, 494 U.S. 370 (1990). We

find no error in the district court’s analysis regarding the

anti-sympathy instruction.

2. Deterrence instruction

During the jury instruction conference, Hogan’s counsel

proposed the following instruction:

You are instructed there exists no reputable

scientific evidence that capital punishment

acts as a general deterrent to crime. You must

decide what is a just punishment for Michael

Hogan without regard as to how his

punishment might affect the crime rate or the

number of homicides committed by others,

for to consider this would amount to

improper speculation.

The trial court declined to provide this instruction to the jury.

Hogan appealed this denial, and the Nevada Supreme Court

affirmed the trial court’s decision because the deterrence

instruction “was not warranted under any authority.” Hogan

I, 732 P.2d at 424. The district court held that the state

court’s decision was not contrary to clearly established

federal law and found the claim “without merit.” Upon

reconsideration, the district court applied pre-AEDPA

standards, but its conclusion remained unchanged.

An omission of the defense’s preferred instruction is

“less likely to be prejudicial than a misstatement of the law.”

Henderson v. Kibbe, 431 U.S. 145, 155 (1977). The

proposed deterrence instruction did not state an element of

76 HOGAN V. BEAN

Hogan’s crime, and Hogan’s sole legal authority for the

proposition is Justice Breyer’s concurring opinion in Ring v.

Arizona stating that “[s]tudies of deterrence are, at most,

inconclusive.” 536 U.S. 584, 615 (2002) (Breyer, J.,

concurring). An instruction speculating about the effects of

the death penalty on others was not required to ensure that

Hogan received a fair trial.

We decline to expand the COA on this issue.

D. Uncertified Claim 4: Did the District Court Err in

Dismissing Hogan’s Lethal Injection Claim (Claim 25)?

Finally, we review uncertified Claim 25 of Hogan’s

fourth amended federal petition, in which he alleges that

Nevada’s lethal injection procedures violate the Eighth

Amendment. Hogan argues that Nevada’s use of midazolam

and cisatracurium will cause him to suffer a “tortur[ous] and

“lingering death.” See Baze v. Rees, 553 U.S. 35, 49 (2008)

(quoting In re Kemmler, 136 U.S. 436, 447 (1890)). The

Nevada Supreme Court dismissed this claim as untimely and

successive. Hogan VI, 2012 WL 204641, at *2. The district

court ruled the claim was procedurally barred because

Hogan failed to present the claim in state court until his

fourth state PCR petition.

Hogan argues that because challenges to the lethal

injection protocol are not cognizable in Nevada state habeas

actions, McConnell v. State, 212 P.3d 307, 309–11 (Nev.

2009) (en banc) (per curiam), the procedural default doctrine

should not apply, and he asks for a remand back to district

court for an evidentiary hearing regarding the lethal injection

protocol.

When method-of-execution claims become ripe is an

open question in our circuit. See Beardslee v. Woodford, 395

HOGAN V. BEAN 77

F.3d 1064, 1069 n.6 (9th Cir. 2005) (per curiam) (“To date,

we have not resolved the question of when challenges to

execution methods are ripe.”). We have previously held that

such claims become ripe “when the method [of execution] is

chosen,” Pizzuto v. Tewalt, 997 F.3d 893, 897, 899, 902 n.9

(9th Cir. 2021), but we have also said that a method of

execution challenge is not ripe when the state has no protocol

that can be implemented at the time of the challenge, Floyd

v. Filson, 949 F.3d 1128, 1152 (9th Cir. 2020). We have not

yet addressed how alternate methods of execution may affect

ripeness.

In this case, the protocol Hogan disputes was replaced in

2021 by a new cocktail of lethal drugs. Compare Nev. Dep’t

of Corr. v. Eighth Jud. Dist. Court, Nos. 74679, 74722, 2018

WL 2272873, at *2 (Nev. May 10, 2018) (NDOC 2018

protocol specifying the use of diazepam, fentanyl, and

cisatracurium), with “Acquisition and Preparation of Drugs

for Lethal Injection,” Nevada Department of Corrections,

Execution Manual, EM-103 (specifying the use of

(1) fentanyl or alfenanil, (2) ketamine, (3) potassium

chloride or potassium acetate, and the option to add

(4) cisatracurium). Under the new protocol, “Nevada

presently has no execution protocol that it could apply.”

Floyd, 949 F.3d at 1152 (emphasis added). Nevada has no

usable ketamine, and drug manufacturers have blocked

Nevada from purchasing additional midazolam. See id.

(citation omitted). Moreover, Nevada has not issued an

execution warrant, so it is premature for us to speculate on

any future developments. Thus, we find that Hogan’s drug-

specific lethal-injection challenge is not yet ripe, and this

claim is not justiciable.

We therefore decline to expand the COA to address

Hogan’s method-of-execution claims.

78 HOGAN V. BEAN

E. Uncertified Claim 5: Did the District Court Err in

Dismissing Hogan’s Cumulative Errors Claim (Claim

26)?

Hogan has requested that we expand the COA to

consider cumulative error. For the reasons stated above,

there are no potential errors that could accumulate.

Therefore, we deny the request to expand the COA on this

issue.

V. CONCLUSION

For the foregoing reasons, we reverse the district court’s

decision as to Claims 2(A)–(G) and (I)–(O) and remand for

further proceedings consistent with this opinion. We grant

the motion to expand the Certificate of Appealability as to

Claims 5(A) and (B), but affirm the district court’s judgment

on the merits. We affirm on all other claims.

AFFIRMED in part and REVERSED and

REMANDED in part.

HOGAN V. BEAN 79

APPENDIX A

Timeline

Jan. 1971: Hogan pleads guilty to manslaughter in Iowa.

May 1985: Hogan’s convicted of the murder of Heidi

Hinkley in Nevada.

Oct. 1987: U.S. Supreme Court denies certiorari review

of Hogan’s conviction and sentence after

direct review in the Nevada Supreme Court.

Hogan I, 732 P.2d 422 (1987), cert. denied,

484 U.S. 872 (1987).

Nov. 1987: Hogan files pro se his first state habeas

petition (“state PCR”) in Nevada.

Dec. 1988: Nevada Supreme Court dismisses Hogan’s

appeal of the district court’s denial of his first

state PCR. Hogan II, 809 P.2d 607 (Table),

No. 18994 (Nev. Dec. 21, 1988) (order

dismissing appeal); Excerpts of Record 133–

34.

Jan. 1989: Hogan files a pro se habeas petition in the

U.S. District Court in Nevada.

Apr. 1989: Now represented by Quintana, Hogan files a

first amended federal habeas petition.

Mar. 1990: Hogan, still represented by Quintana, files his

second amended federal habeas petition.

Sept. 1990: U.S. District Court of Nevada stays federal

proceedings to allow Hogan to exhaust new

claims in state court.

Nov. 1990: Hogan files his second state PCR petition in

Nevada.

80 HOGAN V. BEAN

Sept. 1993: Nevada Supreme Court denies Hogan’s

appeal of the district court’s dismissal of his

second state PCR as successive. The Nevada

Supreme Court denies rehearing, and the U.S.

Supreme Court denies certiorari. Hogan III,

860 P.2d 710, 715–16, on motion for

rehearing, Hogan IV, 916 P.2d 805 (1996),

cert denied, 519 U.S. 944 (1996).

Aug. 1997: U.S. District Court for Nevada reopens

federal habeas proceedings.

Mar. 2001: Hogan, now represented by Cartledge and

Cornell, files a third amended federal habeas

petition in U.S. District Court of Nevada.

Dec. 2003: U.S. District Court of Nevada stays federal

proceedings so Hogan can exhaust new

claims in state court.

Feb. 2004: Hogan files his third state PCR petition in

Nevada.

Nov. 2006: Nevada Supreme Court denies Hogan’s

appeal of the lower court’s denial of his third

state PCR petition as successive and

untimely. Hogan V, 178 P.3d 764 (Table),

No. 46293 (Nov. 15, 2006) (order of

affirmance); Excerpts of Record 96–102.

Feb. 2008: Federal Public Defender’s office is appointed

to represent Hogan.

Aug. 2004: U.S. District Court for Nevada grants stay for

Hogan to present unexhausted claims in state

court.

Sept. 2008: Hogan files his fourth state habeas petition in

HOGAN V. BEAN 81

Nevada

Jan. 2012: The Nevada Supreme Court denies Hogan’s

appeal of the lower court’s denial of his

fourth state habeas petition as successive and

untimely. Hogan VI, No. 54011, 2012 WL

204641 (Nev. Jan. 20, 2012)

Oct. 2012: Hogan files a fourth amended federal habeas

petition.

Mar. 2014: Government files a motion to dismiss. Court

dismisses all claims as procedurally defaulted

except Claims 2(H), 10, 11(C) and (D), and

26.

Sept. 2015: District Court granted motion for an

evidentiary hearing re: 2(H).

Mar. 2018: District Court denies all remaining claims

without holding the evidentiary hearing.

82 HOGAN V. BEAN

APPENDIX B

Claim, as numerated on First Presented to the

Hogan’s operative, fourth Nevada State Court

amended federal petition

Claim 1(A): 3rd state petition

Use of “Premeditation”

instruction

Claim 1(B): 3rd state petition

Use of “Implied Malice”

instruction

Claim 1(C): 3rd state petition

Use of “Malice Aforethought”

instruction

Claim 2(A): 3rd state petition

Ineffective assistance of trial

counsel for failing to

investigate and present

mitigating evidence during the

penalty proceedings

Claim 2(B): 3rd state petition

Ineffective assistance of trial

counsel for failing to obtain

adequate expert assistance

during guilt and penalty

proceedings

Claim 2(C): 3rd state petition

Ineffective assistance of trial

counsel for failing to

adequately question witnesses

during the penalty proceedings

HOGAN V. BEAN 83

Claim 2(D): 3rd state petition

Ineffective assistance of trial

counsel for presenting a

deficient closing argument

during the penalty phase

Claim 2(E): 3rd state petition

Ineffective assistance of trial

counsel for failing to conduct

an adequate guilt phase

investigation

Claim 2(F): 3rd state petition

Ineffective assistance of trial

counsel for presenting known

harmful expert testimony

during the guilt phase

Claim 2(G): 3rd state petition

Ineffective assistance of trial

counsel for failing to develop a

social history and provide that

information to guilt phase

experts

Claim 2(H): 1st state petition

Ineffective assistance of trial

counsel for inadequately

investigating the Iowa

conviction to challenge

aggravating factor

Claim 2(I): 3rd state petition

Constructive denial of trial

counsel when court denied

counsel’s request for

continuance

84 HOGAN V. BEAN

Claim 2(J): 3rd state petition

Constructive denial of trial

counsel because of trial

counsel’s headaches, conflict of

evidence, and investigator’s

cocaine addiction

Claim 2(K): 3rd state petition

Constructive denial of trial

counsel because of the lack of

resources and training at the

Clark County Public Defender.

Claim 2(L): 4th state petition

Ineffective assistance of trial

counsel for reemphasizing

prejudicial evidence during cross

examination of a witness

Claim 2(M): 4th state petition

Ineffective assistance of trial

counsel for failing to request a

mistrial or removal of a tainted

alternate juror

Claim 2(N): 3rd state petition

Ineffective assistance of trial

counsel for failing to object to

jury instructions described in

Claim 1 and Claim 11

Claim 2(O): 3rd state petition

Ineffective assistance of trial

counsel for failing to advance

mental state defense and

request voluntary manslaughter

instruction

HOGAN V. BEAN 85

Claim 3: 3rd state petition

Deprivation of constitutionally

adequate expert assistance

Claim 4: 3rd state petition

Actual innocence of first-

degree and attempted murder

because of Hogan’s mental

state

Claim 5(A): Direct Appeal

Prior Violent Felony Agg. Cir.

Claim 5(B): Direct Appeal

Great Risk of Death Agg. Cir.

Claim 5(C): 3rd state petition

actual innocence because of

above aggravating

circumstances

Claim 6: 4th state petition

Lack of special verdict form on

mitigating circumstances

Claim 7(A): Direct Appeal

Constitutionally inadequate voir

dire because the jury was not

“life-qualified”

Claim 7(B): Direct Appeal

Inclusion of biased juror who

would automatically vote for

the death penalty

Claim 7(C): Direct Appeal

Inclusion of biased juror who

would not consider mitigation

evidence

86 HOGAN V. BEAN

Claim 7(D): Direct Appeal

Ineffective assistance of trial

counsel during voir dire

Claim 8: 3rd state petition

Denial of substitution of

counsel prior to trial

Claim 9: 3rd state petition

Denial of motion to continue

trial

Claim 10(A): Direct Appeal

Introduction of inadmissible

hearsay from lay witnesses

Claim 10(B): Direct

Introduction of inadmissible Appeal

hearsay from Dr. Green

Claim 11(A): 3rd state petition

Use of “Equal and Exact

Justice” instruction

Claim 11(B): 3rd state petition

Use of “Reasonable Doubt”

instruction in guilt and penalty

phases

Claim 11(C): Direct Appeal

Use of “Anti-Sympathy”

instruction

Claim 11(D): Direct Appeal

“Deterrence” instruction not

given

Claim 11(E): 3rd state petition

“Clemency” instruction not

given

HOGAN V. BEAN 87

Claim 12(A): 3rd state petition

Jury was not required to

unanimously find aggravating

circumstances

Claim 12(B): 3rd state petition

Jury was not required to

unanimously find mitigating

circumstances

Claim 13: 2nd state petition

Jury was not instructed it must

find elements of death penalty

beyond a reasonable doubt

Claim 14(A): Direct Appeal

Prosecutorial misconduct

during closing arguments in

guilt and penalty phase

Claim 14(B): Direct Appeal

Prosecutorial misconduct

during witness examination in

penalty phase

Claim 15: Direct Appeal

Introduction of inadmissible,

undercharged prior bad acts

into evidence

Claim 16: 3rd state petition

Refusal to allow evidence of

drug abuse and intoxication as

mitigating circumstance

Claim 17: 3rd state petition

Introduction of victim impact

evidence

88 HOGAN V. BEAN

Claim 18: 1st state petition

Creation of prejudicial

atmosphere by victim groups

Claim 19: 3rd state petition

Lack of public proceedings

Claim 20: 1st state petition

Ineffective assistance of

appellate counsel

Claim 21: 4th state petition

Nevada Supreme Court’s

failure to conduct fair and

impartial appellate review

Claim 22: 4th state petition

Lack of due process because

Nevada judges’ tenure is not

dependent on elections rather

than on good behavior

Claim 23(A): 2nd state petition

Nevada’s statutory scheme

does not narrow the death

penalty class

Claim 23(B): 2nd state petition

Nevada’s case law does not

narrow the death penalty class

Claim 23(C): 2nd state petition

Harmless error analysis to

juries’ consideration of invalid

aggravating factors

Claim 23(D): 2nd state petition

Expansion of aggravating

factors renders Nevada’s death

penalty scheme arbitrary

HOGAN V. BEAN 89

Claim 24: 3rd state petition

Death penalty is cruel and

unusual

Claim 25(A): 4th state petition

Death by lethal injection is

cruel and unusual

Claim 25(B): 4th state petition

Nevada’s execution protocol is

cruel and unusual

Claim 26: 4th state petition

Cumulative error, see all other

claims

Claim 27: 3rd state petition

Ineffective assistance of state

post-conviction counsel

90 HOGAN V. BEAN

CALLAHAN, Circuit Judge, concurring in part1 and

dissenting in part:

Because the opinion is contrary to the controlling

Supreme Court opinions, I dissent from its misguided

assertion that Hogan’s failure to allege ineffective assistance

of trial counsel until his third state post-conviction relief

(“PCR”) petition may be excused under Martinez v. Ryan,

566 U.S. 1 (2012). Martinez created a narrow exception to

the general rule that there is “no right to counsel in a state

collateral proceedings.” Coleman v. Thompson, 501 U.S.

722, 755 (1991). Based on “the importance of the right to

the effective assistance of trial counsel,” Davila v. Davis,

582 U.S. 521, 531 (2017), Martinez allows, under certain

narrow circumstances, a defendant to raise a claim of trial

counsel ineffective assistance of counsel (“IAC”) in a second

state PCR petition when it was not raised in the initial PCR

petition due to the IAC of counsel in that proceeding. But

here, Hogan did not raise trial counsel IAC in his second

PCR petition. Rather, the issue was not raised until he filed

subsequent post-conviction petitions in 2004 and 2008.

1

I concur in the affirmance of the denial of Hogan’s claim that his trial

counsel provided ineffective assistance of counsel by failing to

adequately investigate and challenge his 1971 Iowa manslaughter

conviction (Claim 2(H)). I also concur in the affirmance of the denial of

a Certificate of Appealability on Hogan’s claims that (1) the trial court

violated his confrontation right (Claim 10); (2) jury instructions

prevented the jury from crediting mitigation evidence and providing

Hogan with an individualized sentencing determination (Claims 11(C)

and (D)); and (3) Nevada’s lethal injection procedures violate the Eight

Amendment (Claim 25). In addition, although I might not have granted

a Certificate of Appealability on Hogan’s challenges to the aggravating

circumstances (Claims 5(A) and (B)), I agree with the denial of relief on

those challenges.

HOGAN V. BEAN 91

Accordingly, the “cause” for procedural default was not IAC

of counsel in Hogan’s 1987 first PCR petition, but the failure

to raise trial counsel IAC in his second PCR petition.

Because the Martinez exception does not cover Hogan’s

case, or any case, where trial counsel IAC is not raised until

a third or subsequent state PCR petition, I respectfully

dissent.

A

Initially the majority tracks the controlling law. It

recognizes that there is no constitutional right to counsel in

state post-conviction proceedings, Op. at 39, but that the

Supreme Court in Martinez and Davila held that “when a

state relegates trial-counsel IAC claims to state PCR

proceedings, a claim of ineffective state PCR counsel is akin

to a claim of ineffective direct-appeal counsel.” Op. at 39.

It recognizes that the exception is “narrow” and that

“‘attorney error where there is no right to counsel,’ such as

in other state PCR proceedings, ‘remains insufficient to

show cause.’” Op. at 39-40 (quoting Shinn v. Ramirez, 596

U.S. 366, 380 (2022)). It even recognizes that for the

Martinez exception to apply, the state collateral review

proceeding must be the initial review proceeding in respect

to the IAC of trial counsel claim. Op. at 41 (citing Trevino

v. Thaler, 569 U.S. 413, 423 (2013)).

But the majority goes off the track and fails to follow the

authorities it cites when it disagrees with the district court

determination “that Hogan’s failure to raise the trial IAC

claims in his second petition means that any ineffectiveness

of his initial review PCR counsel cannot constitute ‘cause’

for the procedural default.” Op. at 42. The district court was

right and properly applied Supreme Court precedent. No

discussion of the meaning of “cause,” Op. at 42-45, or the

92 HOGAN V. BEAN

“procedural perplexities in this case,” Op. at 46, or extensive

guidance on remand, Op. at 49-53, can overcome the fact

that Hogan in failing to raise a claim of trial counsel IAC in

his second PCR petition (having failed to raise the claim of

trial counsel IAC in his initial PCR petition) no longer

qualifies for the Martinez exception to excuse his procedural

default.

B

The majority seeks to excuse Hogan’s failure to raise

trial counsel IAC in his second PCR on the ground that the

Nevada “does not recognize the Martinez exception under

state law.” Op. at 45 (citing Brown v. McDaniel, 331 P.3d

867, 869 (Nev. 2014)). The majority suggests that because

trial counsel IAC was not raised in the first state PCR

petition, Hogan was “precluded” from raising trial counsel

IAC in a second PCR petition and thus counsel on his second

PCR petition could not have been ineffective in not doing so.

Op. at 46 n.10.

I disagree. First, Brown does not establish an absolute

bar. Yes, the Nevada Supreme Court declined to accept the

“equitable exception” noted in Martinez. 331 P3d at 870-71

(“The Supreme Court, however, expressly declined in

Martinez to decide whether a federal constitutional right to

counsel exists in post-conviction proceedings and instead

emphasized that its ruling was equitable in nature rather than

constitutional.”) . But it concluded that Brown’s “petition

was barred as untimely and successive and that he did not

demonstrate good cause and prejudice to overcome the

procedural bars.” Id. at 875 (emphasis added). It further

held that Brown had not shown a “fundamental miscarriage

of justice.” Id. Moreover, despite Brown, the Nevada

Supreme Court continues to consider claims of IAC of trial

HOGAN V. BEAN 93

counsel on a first PCR petition when raised in successive

PCR petitions. See Taylor v. Warden NDOC, 548 P.3d 776

(Table) (Nev. 2024) (noting “even were we to reconsider

Brown, Taylor would not be entitled to relief”).

Indeed, the Nevada Supreme Court considered Hogan’s

subsequent PCR petitions alleging trial counsel IAC. Hogan

raised trial counsel IAC in a third PCR petition in 2004, and

a fourth PCR petition in 2008. In its order denying Hogan’s

fourth PCR petition, the Nevada Supreme Court considered

his claim of trial counsel IAC and concluded “that Hogan

failed to demonstrate good cause to excuse the procedural

bars.” Hogan v. State, 128 Nev. 903. 381 P.3d 621 (Table),

2012 WL 204641 at *2 (Nev. 2012). It further noted that

Hogan had not shown “a fundamental miscarriage of

justice.” Id. at *3. Accordingly, the failure to raise trial

counsel IAC in the second PCR petition cannot be excused

as being barred by Brown and cannot somehow justify the

extension of the Martinez exception to cover trial counsel

IAC claims asserted in Hogan’s third and fourth state PCR

petitions.

Hogan has not shown that if he had raised his trial

counsel IAC claim in his second PCR petition, the Nevada

courts would not have considered the claim. But even if

Hogan had been truly barred from raising trial counsel IAC

in a second PCR, he still would have had to assert trial

counsel IAC in his second state PCR petition in order to

qualify for the Martinez exception. Martinez is an equitable

exception to the procedural default bar. The filing of a

second state PCR petition shows that petitioner offered the

state courts an opportunity to address the underlying

constitutional issue. The fact that the state courts denied

relief or declined to consider the alleged constitutional issue

is essentially the predicate for seeking relief in a federal

94 HOGAN V. BEAN

court. See Coleman, 501 U.S at 731 (“a state prisoner’s

federal habeas petition should be dismissed if the prisoner

has not exhausted available state remedies as to any of his

federal claims.”).

C

The conclusion that Hogan no longer qualifies for the

Martinez exception is compelled by Supreme Court

precedent. In Martinez, the Court explained its creation of

an exception for establishing cause to excuse procedural

default:

Coleman v. Thompson, supra, left open, and

the Court of Appeals in this case addressed, a

question of constitutional law: whether a

prisoner has a right to effective counsel in

collateral proceedings which provide the first

occasion to raise a claim of ineffective

assistance at trial. These proceedings can be

called, for purposes of this opinion, “initial-

review collateral proceedings.” Coleman had

suggested, though without holding, that the

Constitution may require States to provide

counsel in initial-review collateral

proceedings because “in [these] cases . . .

s

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