Gregory Dickens v. Charles L. Ryan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GREGORY DICKENS, No. 08-99017

Petitioner-Appellant,

D.C. No.

v. CV-01-757-

PHX-NVW

CHARLES RYAN,

Respondent-Appellee. OPINION

Appeal from the United States District Court

for the District of Arizona

Neil V. Wake, District Judge, Presiding

Argued and Submitted En Banc

June 24, 2013—Seattle, Washington

Filed January 23, 2014

Before: Alex Kozinski, Chief Judge, and Harry Pregerson,

Kim McLane Wardlaw, Marsha S. Berzon, Jay S. Bybee,

Consuelo M. Callahan, Sandra S. Ikuta, N. Randy Smith,

Mary H. Murguia, Morgan Christen and Paul J. Watford,

Circuit Judges.

N.R. Smith, Circuit Judge, delivered the opinion of the

Court, which is joined in full by Judges Ikuta and Watford.

Chief Judge Kozinski, Judge Bybee, and Judge Callahan

join Parts I and II. Judges Pregerson, Wardlaw, Berzon,

Murguia, and Christen join Part III.

2 DICKENS V. RYAN

Opinion by Judge N.R. Smith;

Partial Concurrence by Chief Judge Kozinski;

Concurrence by Judge Watford;

Partial Concurrence and Partial Dissent by Judge Callahan;

Partial Concurrence and Partial Dissent by Judge Christen

SUMMARY*

Habeas Corpus/Death Penalty

The en banc court affirmed in part and vacated in part the

district court’s denial of a 28 U.S.C. § 2254 habeas corpus

petition challenging a conviction and capital sentence for

felony murder and conspiracy to commit armed robbery.

In Parts I and II of the opinion, the en banc court held

that, applying Enmund v. Florida, 458 U.S. 782 (1982), and

Tison v. Arizona, 481 U.S. 137 (1987), the Arizona Supreme

Court did not unreasonably conclude that petitioner Dickens

was eligible for the death sentence because he was a major

participant in the victims’ robbery/murder and acted with

reckless indifference to human life. The majority also agreed

that the state court’s decision was not based on an

unreasonable determination of fact.

In Part III of the opinion, the en banc court held that

Dickens’s claim of ineffective assistance of counsel was

procedurally defaulted and should be remanded to allow the

district court to evaluate whether Dickens can show cause and

*

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

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

DICKENS V. RYAN 3

prejudice under the Supreme Court’s intervening decision in

Martinez v. Ryan, 132 S. Ct. 1309 (2012). The majority also

provided guidance to the district court by explaining that:

(1) Cullen v. Pinholster, 131 S. Ct. 1388 (2011), does not bar

the federal district court from considering the procedurally

barred ineffective assistance claim because it was not

previously adjudicated on the merits by the state courts;

(2) Dickens’s other, previously adjudicated ineffective

assistance claims did not foreclose the procedurally barred

claim; and (3) 28 U.S.C. § 2254(e)(2) does not bar an

evidentiary hearing on remand for Dickens to show cause and

prejudice to overcome the procedural bar.

Chief Judge Kozinski, joined by Judges Bybee and

Callahan, concurred in Parts I and II. He wrote separately

because he believes the Arizona Supreme Court’s application

of Enmund and Tison was not just reasonable, but entirely

correct.

Judge Watford concurred, except to the extent that the

majority suggested that the state court correctly applied Tison

and Enmund to the facts of Dickens’s case. He agreed that

the state court’s application of those precedents was not

unreasonable, but under an independent evaluation of those

cases he would have held that the Eighth Amendment bars

Dickens’s execution.

Judge Callahan, joined by Chief Judge Kozinski and

Judge Bybee, concurred in Parts I and II of the majority

opinion and dissented from Part III. She explained that there

are three strikes against Dickens and he should be out of

court: (1) Dickens is not eligible for the narrow exception to

the exhaustion requirement under Martinez because the state

court rejected his claim on the merits; (2) Dickens’s specific

4 DICKENS V. RYAN

allegations of organic brain damage and Fetal Alcohol

Syndrome do not amount to a new claim of ineffective

assistance regarding mitigating evidence; and (3) a review of

counsel’s performance on the merits would result in the

conclusion that counsel adequately presented mitigating

evidence and any failings were not prejudicial.

Judge Christen, joined by Judges Pregerson, Wardlaw,

Berzon and Murguia, dissented from Parts I and II of the

majority opinion and concurred in Part III. She dissented

because imposing the death penalty in this case is an

unreasonable application of clearly established law as

articulated in Enmund and Tison, and at least two

unreasonable findings of fact were critical to the state court’s

decision. She would grant relief and decline to reach

Dickens’s Martinez argument. Because the majority did

reach the Martinez issue, Judge Christen joined in the

judgment to vacate the district court’s ruling and remand for

consideration of the issue in light of Martinez.

COUNSEL

Robin C. Konrad (briefed and argued) and Dale A. Baich,

Assistant Federal Public Defenders, Federal Public

Defender’s Office, Phoenix, Arizona, for Petitioner-

Appellant.

John P. Todd, Assistant Attorney General, Capital Litigation

Section, Arizona Attorney General’s Office, Phoenix,

Arizona, for Respondent-Appellee.

DICKENS V. RYAN 5

OPINION

N.R. SMITH, Circuit Judge:

Arizona state prisoner Gregory Scott Dickens appeals the

district court’s denial of his 28 U.S.C. § 2254 habeas corpus

petition. We affirm the district court’s conclusion that (1) the

Arizona Supreme Court did not unreasonably apply Enmund

v. Florida, 458 U.S. 782 (1982), and Tison v. Arizona,

481 U.S. 137 (1987), to the facts of this case and (2) the

Arizona Supreme Court did not base its decision on an

unreasonable determination of the facts. See

28 U.S.C. § 2254(d). However, we reverse the district court’s

denial of one of Dickens’s ineffective assistance of counsel

claims.1 While we agree that Dickens defaulted on this claim

by failing to fairly present the claim to the Arizona courts, we

remand to allow the district court to reassess whether Dickens

can establish cause and prejudice to excuse the procedural

default under Martinez v. Ryan, 132 S. Ct. 1309 (2012).

FACTS2

In January 1990, Dickens became acquainted with then

fourteen-year-old Travis Amaral. Dickens met Amaral while

working as a counselor at Oak Grove Institute in Temecula,

California. Oak Grove is a placement center for violent

1

Dickens raises other uncertified issues on appeal, which we address in

a separate Memorandum Disposition filed concurrently with this Opinion.

2

These facts are drawn substantially from the Arizona Supreme Court’s

opinion in State v. Dickens, 926 P.2d 468, 474–75 (Ariz. 1996) (in banc).

We presume the correctness of the Arizona court’s findings unless

rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

6 DICKENS V. RYAN

juveniles where Amaral lived at the time. While working

with Amaral, Dickens learned that he was a “high risk”

patient with a “violent and explosive temper.” Dickens also

discovered that Amaral battered a nurse and frequently

bragged about carrying guns and being involved in several

murders. In March 1990, Dickens quit working at Oak

Grove, but continued his friendship with Amaral.

In early September 1991, Dickens moved to Yuma,

Arizona. A few days after his move, Amaral contacted

Dickens and explained that he was running away from home.

Dickens purchased a bus ticket for Amaral to travel to Yuma.

Amaral arrived in Yuma on September 8, 1991. The two then

spent the next several days recreating near the Colorado

River. Dickens showed Amaral a .38-caliber revolver he had

recently acquired and, at some point during their time

together, Amaral attempted to intimidate Dickens by pointing

the revolver at Dickens’s head.

Dickens paid for Amaral’s food and transportation during

his visit to Yuma. But Dickens was running low on cash. On

September 10, 1991, Dickens and Amaral discussed “ways to

get more money,” while eating dinner at a Hardee’s

restaurant. Dickens suggested they plan a robbery. They

flipped a coin to decide who would conduct the first robbery.

Amaral won. Dickens then gave Amaral a choice of several

locations to commit the robbery. His options included a

convenience store and a highway rest stop. Amaral selected

the rest stop since it was “out of the way,” less busy, and

“easier.”

Dickens and Amaral left the restaurant and drove to a rest

area on the eastbound side of Interstate 8, east of Yuma.

Dickens removed his .38-caliber revolver from the glove

DICKENS V. RYAN 7

compartment and placed it on a seat in the vehicle. At some

point while waiting at the rest stop, Amaral again pointed the

revolver at Dickens’s head to intimidate him. After waiting

at the rest area for approximately three hours, Dickens and

Amaral saw Bryan and Laura Bernstein enter the rest area for

westbound traffic on the opposite side of the freeway.3

Dickens nodded his head and either handed Amaral the

handgun or watched him remove it from the seat. They

agreed that, once Amaral robbed the Bernsteins, he would run

down the westbound ramp of the rest area where Dickens

would pick him up.

Dickens watched from his truck on the opposite side of

the highway as Amaral crossed the interstate, approached the

3

Bryan and Laura were both 22 years old. They had been married for

three years and graduated from Cornell University. When they were

murdered, they were traveling through Arizona en route to UCLA where

they both received fellowships to undertake graduate work.

The jury heard evidence that the Bernsteins were not the first car to

enter the rest area during the three hours that Dickens and Amaral waited

for victims. Amaral testified that between four and six other cars entered

and exited the rest area before the Bernsteins arrived. At some point, a car

full of six people entered. Dickens asked Amaral whether Amaral thought

he could “pull off” the robbery of those people or whether Amaral wanted

to wait for “something easier.” Amaral responded that they should wait,

because six people were “too many for the amount of bullets [they] had.”

While we mention this testimony, we omit it from our statement of facts,

and do not rely on it in our Enmund/Tison analysis below, because the

Arizona Supreme Court did not rely on this testimony in its discussion of

the evidence supporting the Enmund/Tison findings. See Dickens,

926 P.2d at 490–91.

8 DICKENS V. RYAN

Bernsteins, and asked if they had the time.4 Laura responded,

“9:17 [p.m.].” Amaral then pointed the gun at Bryan and

demanded his wallet. Once Bryan surrendered his wallet,

Amaral asked Laura for her wallet, but she did not have one.

Amaral then ordered the Bernsteins to walk past their car and

turn around. From the opposite side of the highway, Dickens

observed Amaral moving the Bernsteins across the beams of

light from their headlamps. Amaral asked if they were ready

to die and then shot Laura in the head. Dickens saw the

bright flash of the gun as Amaral shot Laura. Laura fell to the

ground and Bryan crouched down over her. Amaral then

recocked the revolver, pointed it at Bryan, and shot him in the

head.

After observing the robbery and shootings, Dickens drove

across the median and through the rest area. No evidence

4

The Arizona Supreme Court noted that “Amaral also testified that he

carried a two-way walkie-talkie that [Dickens] had given him, and

[Dickens] had one with him in his truck.” 926 P.2d at 474. And that

“Speaking through the walkie-talkie, [Dickens] then told Amaral, ‘No

witnesses.’ Amaral asked, ‘What?’ [Dickens] replied, ‘You know what

I mean, no witnesses.’ Amaral responded, ‘What do you mean by no

witness? If I kill them, there are no witnesses; If I leave them here, there

are witnesses.’ [Dickens] replied, ‘No witnesses.’” Id. The district court

also relied on this factual summary. However, Dickens presented

evidence at trial showing that Amaral’s statements were inconsistent and

that his testimony was contradicted by his fellow prisoners. Ultimately,

the Assistant Attorney General conceded before the Arizona Supreme

Court that “the one part the jurors and trial court didn’t believe, was the

talk about the walkie-talkie” and that the Arizona Supreme Court

“shouldn't believe, the walkie-talkie testimony.” Thus, we omit from our

factual summary any reference to the alleged walkie-talkie conversation.

However, the jury’s disbelief of the walkie-talkie testimony does not show

that the Arizona Supreme Court’s decision was unreasonable, because the

court did not rely on this testimony in its discussion of the evidence

supporting the Enmund/Tison findings. See Dickens, 926 P.2d at 490–91.

DICKENS V. RYAN 9

suggests Dickens stopped to aid the Bernsteins, called for

emergency medical assistance, or otherwise notified the

authorities. Dickens then picked up Amaral on the

westbound side of the highway and asked, “Do you have the

wallet?” Amaral replied that he did and handed the wallet to

Dickens. Dickens searched the wallet and returned it to

Amaral. Dickens explained to Amaral that he had driven

through the rest area to make sure “everything was taken care

of.” They then drove to the home of Dickens’s brother where

Amaral removed cash, traveler’s checks, and one credit card

from Bryan’s wallet. Dickens and Amaral burned the wallet

and its remaining contents. They split the cash, Amaral

pocketed the credit card and they later destroyed the

traveler’s checks.

At approximately 9:40 p.m., a deputy sheriff drove into

the rest area and found the Bernsteins lying on the ground in

front of their vehicle. Laura was dead. Bryan was

semiconscious, thrashing around, and moaning in pain.

Bryan told the deputy that he had been threatened with a gun,

attacked, and thought he had been shot. Bryan died shortly

thereafter.

On September 11, the morning following the murders,

Amaral unsuccessfully attempted to use Bryan’s credit card

at a local K-Mart. Dickens and Amaral spent that night at a

Motel 6 where Dickens had rented a room. Early the next

morning, Dickens drove to Carlsbad, California, and Amaral

went back to his mother’s house.

Dickens and Amaral met up again in March 1992, and

Amaral stayed with Dickens for one or two weeks in a San

Diego, California apartment. Amaral’s mother reported

Amaral as a runaway and gave Dickens’s address to the

10 DICKENS V. RYAN

police. The police conducted an investigation into sex abuse

charges against Dickens. San Diego police officers

eventually arrested Dickens on charges of sexually abusing

Amaral (and other boys) and assault with a deadly weapon.5

During an interview concerning the alleged abuse, Amaral

told officers that he and Dickens had been involved in the

double homicide in Yuma.

PROCEDURAL HISTORY

In April 1992, Dickens was indicted for two counts of

premeditated first-degree murder, two counts of felony

first-degree murder, one count of conspiracy to commit

first-degree murder, one count of conspiracy to commit

armed robbery, and two counts of armed robbery. After a

trial, he was acquitted of premeditated murder and conspiracy

to commit murder. However, he was convicted of the felony

murders and armed robberies of Bryan and Laura Bernstein

and conspiracy to commit armed robbery. The sentencing

court found no mitigating factors and thus sentenced Dickens

to death on the felony murder counts.6 The sentencing judge

ordered that, if the sentences were ever reduced, then they

should be served consecutively. The court also sentenced

Dickens to fourteen years’ imprisonment on the conspiracy

and armed robbery convictions, to be served consecutively to

the death sentences.

5

This information was not provided to the jury.

6

The district court sentenced Dickens to death prior to the Supreme

Court’s decision in Ring v. Arizona, 536 U.S. 584 (2002), that juries

(rather than courts) must determine the presence or absence of aggravating

factors meriting imposition of the death penalty. The procedural rule

announced in Ring “does not apply retroactively to cases already final on

direct review.” Schriro v. Summerlin, 542 U.S. 348, 358 (2004).

DICKENS V. RYAN 11

Dickens applied for post-conviction relief from the trial

court but was denied. Dickens then appealed his conviction

and sentence to the Arizona Supreme Court. That court

affirmed the trial court’s denial, noting that “[t]his is not a

case of lingering doubt” and that overwhelming evidence

supported the conviction and capital sentences. State v.

Dickens, 926 P.2d 468, 493 (Ariz. 1996) (in banc).

Dickens subsequently filed a petition for writ of habeas

corpus under 28 U.S.C. § 2254 with the U.S. District Court

for the District of Arizona. In the federal habeas proceeding,

Dickens changed his ineffective assistance of counsel

(“IAC”) claim to include extensive factual allegations that he

suffered from Fetal Alcohol Syndrome (“FAS”) and organic

brain damage. The district court concluded that Dickens’s

new claim was procedurally barred and, with regard to his

other arguments, denied his petition. Dickens appealed the

district court’s decision to this court.

A divided panel of our court affirmed the district court’s

denial of Dickens’s Enmund/Tison claim. However, all three

judges agreed that the district court’s conclusion that Dickens

procedurally defaulted his IAC claim should be vacated and

remanded to allow the district court to reassess the claim in

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

132 S. Ct. 1309 (2012). Both parties petitioned for this Court

to rehear the case en banc, and a majority of non-recused

active judges voted to rehear the case.

STANDARD OF REVIEW

We review de novo the district court’s order denying the

petition. Estrada v. Scribner, 512 F.3d 1227, 1235 (9th Cir.

2008).

12 DICKENS V. RYAN

The Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”) applies to this court’s review of Dickens’s

claims. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The

threshold a defendant must overcome to obtain relief under

AEDPA is high. Specifically, to obtain relief under AEDPA

Dickens must show that the Arizona Supreme Court’s

decision was either (1) “contrary to” clearly established

federal law as determined by the Supreme Court,

(2) “involved an unreasonable application of such law,” or (3)

“was based on an unreasonable determination of the facts in

light of the record before the state court.” Harrington v.

Richter, ___ U.S. ___, 131 S. Ct. 770, 785 (2011) (quoting

28 U.S.C. § 2254) (internal quotation marks omitted).

Because the relevant state court determination for a

habeas petition is the last reasoned state court decision, we

review the Arizona Supreme Court’s decision denying

Dickens relief. See Delgadillo v. Woodford, 527 F.3d 919,

925 (9th Cir. 2008) (citing Ylst v. Nunnemaker, 501 U.S. 797,

804–06 (1991)). “State-court decisions are measured against

[the Supreme Court’s] precedents as of ‘the time the state

court renders its decision.’” Cullen v. Pinholster, 131 S. Ct.

1388, 1399 (2011) (quoting Lockyer v. Andrade, 538 U.S. 63,

71–72 (2003)). “[A] federal habeas court may not issue the

writ simply because that court concludes in its independent

judgment that the relevant state-court decision applied clearly

established federal law erroneously or incorrectly.” Lockyer,

538 U.S. at 75–76 (internal quotation marks and citation

omitted). “Rather, that application must be objectively

unreasonable.” Id. at 76 (emphasis added).

DICKENS V. RYAN 13

DISCUSSION

Dickens argues that the Arizona Supreme Court

unreasonably applied Enmund/Tison when it upheld

Dickens’s death sentence.7 Dickens also argues that the

Arizona Supreme Court based its decision on an unreasonable

determination of the facts. Finally, Dickens claims that his

counsel was ineffective at sentencing, because counsel failed

to adequately investigate and present certain mitigating

evidence.

We reject Dickens’s first two arguments and affirm the

district court’s denial of Dickens’s Enmund/Tison claim.

However, we reverse the district court’s conclusion that

Dickens failed to show cause to overcome his procedural

default and remand so that the district court can determine

whether Dickens can show cause and prejudice under

Martinez.

7

“A decision can be ‘contrary to’ federal law in one of two ways: if it

‘applies a rule that contradicts the governing law set forth in [Supreme

Court] cases,’ or if it ‘confronts a set of facts that are materially

indistinguishable from a decision of [the Supreme Court] and nevertheless

arrives at a result different from [that] precedent.’” Brown v. Horell,

644 F.3d 969, 978 (9th Cir. 2011) (quoting Williams v. Taylor, 529 U.S.

362, 405–06 (2000)). In contrast, “a decision is an ‘unreasonable

application’ of clearly established federal law” in cases where the state

court identified “the correct legal principle from [the Supreme Court’s]

decisions but unreasonably applies that principle to the facts of the

prisoner’s case.” Cunningham v. Wong, 704 F.3d 1143, 1153 (9th Cir.

2013) (internal quotation marks omitted). Here, the Arizona Supreme

Court recognized Enmund and Tison as the relevant precedent, so only the

“unreasonable application” prong of § 2254(d)(1) is at issue.

14 DICKENS V. RYAN

I. The Arizona Supreme Court did not unreasonably

apply Enmund/Tison.

The Arizona Supreme Court correctly identified Enmund

and Tison as the clearly established federal law governing

Dickens’s claim. In Enmund, the Supreme Court reversed the

death sentence of a defendant convicted under Florida’s

felony-murder rule. 458 U.S. at 798. In Tison, the Supreme

Court affirmed the death sentences of two defendants

convicted under Arizona’s felony-murder rule. 481 U.S.

137.8 In distinguishing between the two cases, the Tison

Court articulated a two prong standard to determine whether

a felony murder defendant is death eligible. For a death

sentence to be constitutional under the Eighth Amendment,

the state must show the defendant’s “[1] major participation

in the felony committed, [2] combined with reckless

indifference to human life.” 481 U.S. at 158. For the reasons

stated below, the Arizona Supreme Court did not

unreasonably conclude that Dickens was a major participant

in the Bernsteins’ robbery/murder and acted with reckless

indifference to human life.

A. Major participation

Dickens claims that his participation in the crimes was

insufficient to warrant a death sentence, like the defendant in

Enmund. Enmund was the driver of the getaway car in an

armed robbery in which his accomplices murdered an elderly

couple who resisted the robbery. 458 U.S. at 784–86. The

Court determined that Enmund “did not commit the

8

The Court remanded for further proceedings to determine whether the

defendants acted with reckless disregard for human life. Tison, 481 U.S.

at 158.

DICKENS V. RYAN 15

homicide, was not present when the killing took place, and

did not participate in a plot or scheme to murder.” Id. at 795.

The Court noted that “the only evidence of the degree of

[Enmund’s] participation [was] the jury’s likely inference that

he was the person in the car by the side of the road near the

scene of the crimes[,] . . . waiting to help the robbers escape

. . . .” Id. at 786 (internal quotation marks omitted). There

was no evidence that Enmund provided the murder weapons,

knew of the shooters’ violent propensities, planned the

underlying crime, or continued to assist the perpetrators after

they murdered their victims. Enmund’s only participation

was that of getaway driver. Id. at 786 n.2.

By contrast in Tison, the defendants helped their father

and his cellmate—both convicted murderers—escape from

prison, armed them with shotguns, helped flag down and

kidnap a family on an isolated road, drove the family to a

remote site, and then stood by as their father and his cellmate

murdered the four family members. 481 U.S. at 139–41. The

Court concluded that the Tison brothers’ major participation

in the crimes distinguished them from Enmund. Id. at

151–52. The Court noted that the Tison defendants:

(1) “actively participated in the events leading to the death

by, inter alia, providing the murder weapons and helping

abduct the victims”; (2) were “present at the murder site,

[and] did nothing to interfere with the murders”; (3) “ma[de]

no effort to assist the victims before, during, or after the

shooting”; (4) “after the murders . . . continued on the joint

venture”; and (5) “could anticipate the use of lethal force”

during the commission of their crimes. Id. at 145, 151

(internal quotation marks omitted).

In this case, the Arizona court’s application of federal law

was not objectively unreasonable. Indeed, Dickens

16 DICKENS V. RYAN

participated in the crimes to nearly the same extent as the

Tison defendants. As in Tison, Dickens participated in the

events leading up to the death, because he “suggested they

plan a robbery,” “[t]he robberies were premeditated, planned,

and agreed on by [Dickens] and Amaral,” and “[Dickens]

drove Amaral to the scene.” Dickens, 926 P.2d at 474, 490.

Dickens was present at the murder site and did not interfere

with the murders since Dickens “wait[ed] and watch[ed] for

approximately three hours” for the victims to arrive and then

“[Dickens] waited while Amaral committed the robberies.”

Id. at 474, 490. Dickens made no effort to assist the victims

but rather “picked up Amaral” after the crime “then drove to

the home of [his] brother.” Id. at 475. Dickens continued the

joint venture when he “witnessed the destruction of evidence,

and failed to report the crimes.” Id. at 490. And finally,

Dickens could have anticipated that Amaral would use lethal

force since “[Dickens] furnished Amaral with the weapon

used in the murders or knew Amaral had the weapon with

him for the robberies.” Id. In short, Dickens was actively

involved in every aspect of the deadly crime—suggesting

they undertake the robbery, planning the robbery, staking out

the crime scene, selecting the victims, arming Amaral with a

handgun,9 watching the murders, aiding Amaral’s escape,

9

The Arizona Supreme Court’s decision is (arguably) vague as to

whether Dickens armed Amaral. The Arizona Supreme Court, in its

“Death eligibility” discussion, noted only that Dickens either furnished the

weapon or knew Amaral had the weapon. Dickens, 926 P.2d at 490.

However, it is irrelevant whether Dickens actually handed Amaral the gun

in the moments before the Bernsteins’ robbery and murder. Dickens does

not dispute that he owned the gun and showed it to Amaral prior to the

crimes. As such, Dickens “furnished” the gun by owning it, showing it to

Amaral, and either giving it to him or knowingly allowing him to use it for

the crimes.

DICKENS V. RYAN 17

destroying evidence, and helping Amaral evade capture.

Dickens was clearly a major participant in the crime.

Nonetheless, Dickens insists his conduct was more akin

to the defendant in Enmund than to the defendants in Tison.

While we disagree for the reasons stated above, more

importantly, Dickens’s argument overlooks the deference we

owe the Arizona Supreme Court’s decision under AEDPA.

At the very least, reasonable minds could differ as to whether

Dickens’s participation level is closer to the defendant in

Enmund than the defendants in Tison. See Richter, 131 S. Ct.

at 786. Tison does not illuminate the precise line where a

defendant’s conduct becomes “major participation.” Thus,

even assuming that Dickens’s conduct falls into a “grey area”

between Enmund and Tison, we must defer to the Arizona

Supreme Court’s conclusion. See Wright v. Van Patten,

552 U.S. 120, 126 (2008) (per curiam) (“Because [Supreme

Court precedent] give[s] no clear answer to the question

presented . . . it cannot be said that the state court

unreasonably applied clearly established Federal law.”

(internal quotation marks and alterations omitted)).

One of Dickens’s arguments in particular illustrates

AEDPA’s effect on his claim. Dickens argues that Enmund

and Tison require a defendant’s immediate physical presence

at the murder scene to qualify for the death penalty. Dickens

bases this argument on an arguable distinction between this

case and Tison: the Tison brothers were apparently in closer

proximity to the killings than Dickens. See 481 U.S. at 141,

144–45. However, nowhere in Enmund or Tison does the

Supreme Court clearly establish that “presence” at a murder

scene is a mandatory prerequisite for the death penalty.

Instead, physical presence is merely one of several factors

relevant to the “major participation” prong of the Tison

18 DICKENS V. RYAN

analysis. Id. at 158. The Tison court never stated that one

factor was more important than another factor. Rather, it

simply concluded that the defendants’ actions collectively

demonstrate a “high level of participation . . . [that]

implicates them in the resulting deaths.” Id.

Here, the Arizona Supreme Court considered Dickens’s

“presence” at the murder scene along with the other relevant

factors. See Dickens, 926 P.2d at 490. Its failure to give the

presence factor any particular weight relative to any other

factor demonstrating Dickens’s “high level of participation”

in the crimes did not violate clearly established federal law.

Thus, we cannot say that the Arizona Supreme Court’s

decision was objectively unreasonable, regardless of whether

Tison is distinguishable from Dickens’s case on the

“presence” factor.

Furthermore, even if “presence” were the dispositive

factor in the “major participant” analysis, Dickens would face

an additional AEDPA hurdle. The Supreme Court has never

defined “presence” as it pertains to major participation in a

capital crime. As a result, the Arizona Supreme Court had

only the two contrasting examples of presence in Enmund and

Tison to guide its reasoning. In Enmund, where the defendant

sat in a car outside the home where two victims were shot to

death and neither heard nor observed the murders, the Court

concluded that the defendant “was not present when the

killing took place.” 458 U.S. at 795. However, in Tison,

where the defendants stood by as four people were gunned

down, the Court determined the defendants were “present” at

DICKENS V. RYAN 19

the murder site. 481 U.S. at 145.10 The lack of any Supreme

Court precedent defining “presence” requires us to give the

Arizona Supreme Court some “leeway” in making its

determination. See Richter, 131 S. Ct. at 786.

Here, the Arizona Supreme Court suggested that

Dickens’s presence at the murder scene—combined with his

other actions leading up to and following the

crimes—qualified him as a major participant. See Dickens,

926 P.2d at 490. The record demonstrates that this was not an

unreasonable conclusion. Dickens testified at trial that he

watched, as the Tison brothers presumably did, each part of

the Bernsteins’ murders as they unfolded. Dickens saw the

Bernsteins pull into the rest stop. After selecting the

Bernsteins as the victims, Dickens nodded his head and

watched Amaral walk across the highway with a loaded

.38-caliber handgun, knowing Amaral was going to rob the

Bernsteins at gunpoint. He was close enough to see Amaral

moving the Bernsteins around the front of their car in the path

of the illuminated headlamps and to see flashes as Amaral

shot the victims in the head. Then, rather than merely acting

as the getaway driver, Dickens drove through the rest stop to,

in his words, verify that “everything was taken care of” and

pick up Amaral. Thus, the Arizona Supreme Court did not

10

There was apparently some dispute as to the Tison defendants’

involvement in, and proximity to, the murders: “Ricky claimed to have a

somewhat better view than Raymond did of the actual killing. Otherwise,

the [Arizona] court noted, Ricky Tison’s participation was substantially

the same as Raymond’s.” 481 U.S. at 145. The defendants may have

actually walked away from the murder scene to fetch a water jug for the

victims “when [they] started hearing the shots.” Id. at 141. However,

because both defendants “watched Gary Tison and Greenawalt fire in the

direction of the victims,” they were “present” at the murder scene. Id. at

141, 144–45, 157 (emphasis added).

20 DICKENS V. RYAN

unreasonably conclude that Dickens was a major participant

in the Bernsteins’ robbery and murder.11

B. Reckless indifference to human life

The second prong of the Tison analysis requires the

felony-murder defendant to exhibit “reckless indifference to

human life” sufficient to satisfy Enmund’s culpability

requirement for capital punishment. 481 U.S. at 158. The

Tison Court observed that

some nonintentional murderers may be among

the most dangerous and inhumane of all—the

person who tortures another not caring

whether the victim lives or dies, or the robber

who shoots someone in the course of the

robbery, utterly indifferent to the fact that the

11

At the en banc oral argument, Dickens argued that, because Enmund

was found not present at the scene of the murders when he was 200 yards

away, and Dickens was approximately 199 yards from the murders,

Dickens could not have been present at the scene. However, this

argument is not supported by the record. We know that Dickens got much

closer: While the crime was still ongoing—and while at least one of the

victims was still alive—Dickens “drove across the median to the

westbound lanes, where he picked up Amaral.” Dickens, 926 P.2d at 475.

Unlike Enmund, who sat “waiting to help the robbers escape,” Enmund,

458 U.S. at 788, Dickens drove toward the scene, not to aid the victims,

but “to aid those whom he had placed in the position to kill.” Tison,

481 U.S. at 152. It is unclear from the record exactly how close Dickens

was, but it was certainly much less than 200 yards.

In any event, the Supreme Court has never defined a set distance

between the defendant and the murders to constitute presence.

Determining whether a defendant was present based solely on how many

yards the defendant was from the crime ignores important contextual

factors.

DICKENS V. RYAN 21

desire to rob may have the unintended

consequence of killing the victim as well as

taking the victim’s property. This reckless

indifference to the value of human life may be

every bit as shocking to the moral sense as an

“intent to kill.”

Id. at 157. The Tison court further held that “the reckless

disregard for human life implicit in knowingly engaging in

criminal activities known to carry a grave risk of death

represents a highly culpable mental state” sufficient to

warrant capital punishment “when that conduct causes its

natural, though also not inevitable, lethal result.” Id. at

157–58 (emphasis added).

Applying Tison, the Arizona Supreme Court concluded

that Dickens acted with a reckless indifference to human life,

because, in addition to the factors demonstrating his major

contribution to the crimes, Dickens armed Amaral with the

.38-caliber revolver, knowing that “Amaral had a violent and

explosive temper,” and “failed to render aid” to the

Bernsteins. Dickens, 926 P.2d at 490. Given these facts, the

Arizona Supreme Court concluded that Dickens exhibited a

reckless indifference to human life.

Dickens argues that this conclusion was unreasonable,

because armed robbery is not a crime “known to carry a grave

risk of death.” However, Dickens cites no U.S. Supreme

Court precedent, and we know of none, clearly establishing

this principle. Moreover, even if the garden variety armed

robbery were not known to carry a grave risk of death, the

question here is whether the circumstances of Dickens’s

crime carried a grave risk of death and caused their “natural,

22 DICKENS V. RYAN

though also not inevitable, lethal result.” Tison, 481 U.S. at

158.

The facts support the Arizona Supreme Court’s

determination that Dickens knew there was a grave risk of

death in sending an explosive adolescent with a history of

violence to commit armed robbery. From his experience

working at the Oak Grove Institute (a treatment center for

violent juveniles), Dickens knew that Amaral was a high risk

patient with a “violent and explosive temper.” Dickens,

926 P.2d at 490. He knew that Amaral had battered a nurse

at Oak Grove and had a long history of carrying guns. He

knew that Amaral was reckless in his handling of guns since

Amaral twice attempted to intimidate Dickens—once at the

river and once immediately before the robbery—by pointing

the loaded .38-caliber revolver at Dickens’s head. He knew

that Amaral had bragged about being involved in other

murders. Yet even with this knowledge, Dickens proceeded

with the robbery. He either furnished Amaral with his

.38-caliber revolver or knew Amaral had the gun, and stood

by while Amaral left with the gun to rob the Bernsteins on the

opposite side of the highway. Like the defendants in Tison,

who armed two convicted murderers and helped plan and

orchestrate the armed robbery, Dickens “could have foreseen

that lethal force might be used” in the course of the robbery.

481 U.S. at 151–52; accord Foster v. Quarterman, 466 F.3d

359, 370–71 (5th Cir. 2006) (denying habeas relief to a death

row petitioner because he displayed reckless indifference to

human life by driving two armed co-conspirators from victim

to victim to commit armed robbery, a criminal activity

“known to carry a grave risk of death”).

Furthermore, after watching the shootings, Dickens, like

the defendants in Tison, chose to “aid [Amaral,] whom he had

DICKENS V. RYAN 23

placed in the position to kill rather than [aid] their victims.”

Tison, 481 U.S. at 152; see id. (“These facts not only indicate

that the Tison brothers’ participation in the crime was

anything but minor; they also would clearly support a finding

that they both subjectively appreciated that their acts were

likely to result in the taking of innocent life.”). Dickens

helped Amaral flee the scene of the murder, destroy evidence,

and evade capture. In light of these facts, we cannot say that

the Arizona Supreme Court’s determination that Dickens

exhibited a reckless indifference to human life rested on an

objectively unreasonable application of Enmund and Tison.

II. The Arizona Supreme Court’s decision was not

based on an unreasonable determination of fact.

To avoid the bar against granting habeas relief imposed

by § 2254(d)(2), a defendant must show the state court’s

conclusion “to be ‘an unreasonable determination of the facts

in light of the evidence presented in the State court

proceeding.’” Miller-El v. Dretke, 545 U.S. 231, 240 (2005)

(quoting 28 U.S.C. § 2254(d)(2)). A trial court’s findings are

presumed sound unless the defendant rebuts the “presumption

of correctness by clear and convincing evidence.” 28 U.S.C.

§ 2254(e)(1).

Dickens argues that he is entitled to relief because the

Arizona court’s Enmund/Tison analysis was based on an

unreasonable determination of the facts. More specifically,

Dickens argues that the state court unreasonably determined

that: (1) Amaral was a sufficiently credible witness;

(2) Dickens knew Amaral intended to rob or kill the

Bernsteins; (3) Dickens knew of Amaral’s violent

propensities; and (4) Dickens knew one of the Bernsteins

might still be alive when he left the rest area.

24 DICKENS V. RYAN

We reject Dickens’s claim arising from Amaral’s alleged

lack of credibility. To support this claim, Dickens alleges

that Amaral made inconsistent statements, Amaral’s fellow

prisoners gave contradictory testimony, and the jury rejected

Amaral’s testimony about an alleged walkie-talkie

conversation between Dickens and Amaral at the murder

scene.12 Aside from casting doubt on Amaral’s credibility—a

factor which the state court and jury no doubt considered at

trial13—these general allegations do little more than attempt

to relitigate the jury’s factual findings and credit Dickens’s

testimony (over that of Amaral) that he had no part in the

crimes. Because we must “defer to the jury and the [trial]

judge regarding Amaral’s credibility” unless there is

persuasive evidence that any particular determination of fact

was unreasonable, Dickens cannot prevail under § 2254(d)(2)

by raising a general challenge to Amaral’s credibility.

Dickens, 926 P.2d at 490; see United States v. Johnson,

229 F.3d 891, 894 (9th Cir. 2000) (“[W]e are powerless to

question a jury’s assessment of witnesses’ credibility . . . .”

(internal quotation marks omitted)).

We also reject Dickens’s claims arising from the alleged

insufficiency of evidence at trial. Ample evidence supported

the conclusion that Dickens knew that Amaral intended to rob

12

Amaral’s testimony regarding the walkie-talkie conversation (in which

Dickens allegedly instructed Amaral not to leave any witnesses) is

irrelevant because neither the trial court nor the Arizona Supreme Court

relied on this testimony in their discussion of the evidence supporting the

Enmund/Tison findings. See Dickens, 926 P.2d at 490–91.

13

For example, the jury did not convict Dickens of premeditated murder

or conspiracy to commit murder, indicating it likely did not believe

Amaral’s testimony that Dickens ordered him to kill the Bernsteins over

a two-way radio.

DICKENS V. RYAN 25

the Bernsteins. Dickens himself testified that he knew about

the robbery. Most significantly, he admitted that he “figured

[Amaral] was going to . . . go over there and rob those

people,” and that Amaral told him he was going to rob the

Bernsteins. Moreover, Amaral testified at length about their

common scheme to commit armed robbery. Dickens has not

explained why the Arizona courts’ reliance on this particular

testimony from Amaral was unreasonable. In light of this

evidence, the Arizona Supreme Court’s determination that

Dickens knew about and agreed to the robbery was not

unreasonable.

Similarly, the record supports the Arizona courts’

determination that Dickens knew about Amaral’s violent

propensities. Dickens originally met Amaral at the Oak

Grove Institute for violent juveniles. Dickens learned, while

working at Oak Grove, that Amaral was a “high risk” patient,

had battered a nurse, and frequently bragged about carrying

guns and committing violent crimes, including murder. He

further testified that he had personally seen Amaral carrying

guns on several occasions before the September 1991

murders. Lastly, Amaral pointed a .38-caliber revolver at

Dickens’s head on two separate occasions to intimidate him.

One occasion was just prior to the robbery. In light of

Dickens’s own admissions, we cannot say the Arizona

Supreme Court’s determination that Dickens knew of

Amaral’s violent nature was unreasonable.

Finally, the facts support the Arizona courts’

determination that Dickens “failed to render aid knowing that

one victim might not be dead” and thus exhibited reckless

indifference to human life. Dickens, 926 P.2d at 490.

However, it was not necessary to the Arizona court’s reckless

indifference finding that Dickens knew that “one victim

26 DICKENS V. RYAN

might not be dead.” In Tison, the U.S. Supreme Court

concluded that the defendants exhibited reckless indifference,

in part, because they “watched the killing” and then “chose to

aid those whom [they] had placed in the position to kill rather

than their victims.” 481 U.S. at 152. Nothing suggests the

defendants in Tison knew anyone had survived. Rather, the

relevant factors were the defendants’ knowledge that victims

had been shot and their decision to aid the shooters over the

victims.

Dickens, like the Tison defendants, watched Amaral shoot

the Bernsteins, but decided to aid Amaral over the Bernsteins

by picking him up and driving him to his brother’s home.

There is no evidence that Dickens attempted to aid the

Bernsteins, summon medical assistance, or otherwise notify

the authorities. Instead, he helped Amaral. Because

Dickens’s uncontested knowledge of the Bernsteins’

shooting, rather than Bryan’s survival, is the critical factor in

the Enmund/Tison reckless indifference analysis, the Arizona

Supreme Court did not “base” its decision on an unreasonable

determination of the facts. See 28 U.S.C. § 2254(d)(2).14

14

Evidence in the record also supports this factual determination. For

example, Amaral testified that Dickens drove through the rest stop to

verify that “everything had been taken care of.” Officers testified that,

when they arrived at the rest stop shortly after the shooting, Bryan

Bernstein was still alive and “thrashing” around in pain. At a minimum,

Dickens failed to provide aid when one victim was, in fact, still alive.

DICKENS V. RYAN 27

III. Dickens defaulted on his IAC claim by failing

to fairly present the claim to the Arizona

courts, but he may be able to show “cause”

under Martinez v. Ryan.

Dickens lastly petitions this court for habeas relief on the

basis of his counsel’s ineffective assistance during

sentencing. Dickens argues his counsel failed to conduct a

thorough investigation of Dickens’s background and prepare

the defense expert with the necessary tools to present

compelling mitigation evidence. Dickens claims that trial

counsel should have obtained and introduced additional

mitigating evidence, including evidence that Dickens suffered

from organic brain damage and FAS.

“A federal court may not grant habeas relief to a state

prisoner unless he has properly exhausted his remedies in

state court.” Peterson v. Lampert, 319 F.3d 1153, 1155 (9th

Cir. 2003) (en banc) (citing 28 U.S.C. § 2254(b)); see also

Coleman v. Thompson, 501 U.S. 722, 731 (1991)). To

demonstrate that he exhausted his federal habeas corpus claim

in state court, Dickens’s claim presented in state court “must

include reference to a specific federal constitutional

guarantee, as well as a statement of the facts that entitle [him]

to relief.” Gray v. Netherland, 518 U.S. 152, 162–63 (1996).

An unexhausted claim will be procedurally defaulted, if state

procedural rules would now bar the petitioner from bringing

the claim in state court. See Beaty v. Stewart, 303 F.3d 975,

987 (9th Cir. 2002).

Here, we conclude that Dickens’s claim is procedurally

defaulted, because he never presented it to the state courts

and would now be barred from doing so. However, remand

28 DICKENS V. RYAN

is appropriate to allow the district court to evaluate whether

Dickens can show cause and prejudice under Martinez.

A. Background

Dickens argued to the Arizona trial court that his

sentencing counsel provided ineffective assistance. Dickens

claimed, among other things, that sentencing counsel did not

direct the work of the court-appointed psychologist and did

not adequately investigate Dickens’s background. The trial

court rejected this claim on the merits, finding that sentencing

counsel’s performance was not constitutionally deficient and

that Dickens “failed to demonstrate that he was prejudiced by

any performance of defense counsel.” Considering the same

arguments raised to the trial court, the Arizona Supreme

Court summarily denied Dickens’s Strickland claim on

appeal.

In federal court, Dickens changed his claim to include

extensive factual allegations suggesting Dickens suffered

from FAS and organic brain damage. Dickens argued that

sentencing counsel’s failure to uncover and present these

specific mitigating conditions amounted to constitutionally

deficient performance. The state argued that Dickens

procedurally defaulted any claim based on these new

allegations by failing to present the allegations and evidence

to the state court.

The district court agreed with the state’s procedural

default argument. The district court noted that “[f]actual

allegations that were not presented to the state court may

render a claim unexhausted if the allegations ‘fundamentally

alter’” the claim presented to the state court. See Vasquez v.

Hillery, 474 U.S. 254, 260 (1986). The district court also

DICKENS V. RYAN 29

observed that “[n]ew evidence fundamentally alters a claim

if it places the claim in a significantly different and stronger

evidentiary posture than it had in state court.” Aiken v.

Spalding, 841 F.2d 881, 883, 884 n.3 (9th Cir. 1988). The

district court concluded that Dickens’s new allegations and

proffered evidence fundamentally altered his previously

exhausted IAC claim, rendering it “partially unexhausted and

procedurally defaulted.”

The district court also rejected Dickens’s argument that

ineffective assistance of his post-conviction relief (“PCR”)

counsel constituted “cause” to overcome the procedural

default. The district court reasoned that Dickens had no

constitutional right to effective PCR counsel, making it

insufficient to show cause under Coleman v. Thompson,

501 U.S. 722 (1991). Thus, the district court declined to

reach the merits of Dickens’s “new” IAC claim and denied

Dickens’s request for an evidentiary hearing.

Dickens challenged the district court’s conclusion

concerning exhaustion and cause before the three judge panel

of this court. The state maintained its position that Dickens

failed to exhaust the “new” IAC claim, rendering it

procedurally defaulted. However, after this case was

submitted, the Supreme Court decided Martinez. In

Martinez, the Court modified “the unqualified statement in

Coleman that an attorney’s ignorance or inadvertence in a

postconviction proceeding does not qualify as cause to excuse

a procedural default.” 132 S. Ct. 1309, 1315 (2012).

Martinez created a narrow exception to Coleman whereby

“[i]nadequate assistance of counsel at initial-review collateral

30 DICKENS V. RYAN

proceedings may establish cause for a prisoner’s procedural

default of a claim of ineffective assistance at trial.”15 Id.

The panel ordered the parties to address the effect of

Martinez on Dickens’s “new” IAC claim. The panel rejected

the state’s various arguments that Martinez does not apply to

Dickens’s claim. The panel unanimously decided to remand

the case to the district court to consider whether Dickens

could show cause to overcome his procedural default. For the

reasons stated below, we too conclude that remand is

appropriate under Martinez.

B. Although Dickens procedurally defaulted his

“new” IAC claim, Dickens may be able to show

cause and prejudice under Martinez.

1. Fair presentation in state court

As an initial matter, we agree with the district court that

Dickens failed to exhaust his “new” IAC claim. To exhaust

a constitutional claim, the claim must be “fairly present[ed]”

in state court to provide the state courts an opportunity to act

on them. Duncan v. Henry, 513 U.S. 364, 365 (1995) (per

curiam). A claim has not been fairly presented in state court

if new factual allegations either “fundamentally alter the legal

claim already considered by the state courts,” Vasquez,

474 U.S. at 260; Beaty, 303 F.3d at 989–90, or “place the case

in a significantly different and stronger evidentiary posture

than it was when the state courts considered it.” Aiken,

15

Martinez defines an initial-review collateral proceedings as “collateral

proceedings which provide the first occasion to raise a claim of ineffective

assistance at trial.” Martinez, 132 S. Ct. at 1315.

DICKENS V. RYAN 31

841 F.2d at 883; accord Nevius v. Sumner, 852 F.2d 463, 470

(9th Cir. 1988).

In Aiken, the habeas petitioner presented new evidence

consisting of a decibel sound test performed by an expert

which strengthened his claim that the interrogating officers

heard him request counsel. 841 F.2d at 883. The court held

that his right to counsel claim was unexhausted, because the

new decibel evidence “substantially improve[d] the

evidentiary basis for [his] right-to-counsel and voluntariness

arguments, thereby presenting the very type of evidence

which the state should consider in the first instance.”16 Id.

Similarly, in Nevius, this Court held that a habeas

petitioner failed to exhaust his Batson claim in state court

where he attempted to introduce new and substantial

supporting evidence on appeal. 852 F.2d at 469–70. At oral

argument and in his appellate briefs, Nevius made allegations

concerning comments the prosecutor allegedly made to

defense counsel. The comments, “if proven, might have

presented in a different light the factual issues concerning the

motivation of the prosecutor in exercising his peremptory

challenges.” Id. at 470. However, because the alleged

16

Our holdings in Aiken and Nevius are consistent with case law in other

circuits. See, e.g., Smith v. Quarterman, 515 F.3d 392, 402 (5th Cir.

2008) (dismissing habeas petition for failure to exhaust because new

evidence “regarding [petitioner]’s childhood and the effects of his

substance abuse . . . constitute ‘material additional evidentiary support

[presented] to the federal court that was not presented to the state court’”

(citation omitted)); Demarest v. Price, 130 F.3d 922, 938–39 (10th Cir.

1997) (finding failure to exhaust because “new evidence submitted to the

district court by [the petitioner] transformed his ineffective assistance of

counsel claim into one that was ‘significantly different and more

substantial’” (citation omitted)).

32 DICKENS V. RYAN

remarks were not previously presented in a state court, this

court found that the claims were unexhausted and not

addressable in federal court.

We conclude that the new allegations and evidence

Dickens presented to the federal district court fundamentally

altered Dickens’s previously exhausted IAC claim. Indeed,

the new evidence creates a mitigation case that bears little

resemblance to the naked Strickland claim raised before the

state courts. There, Dickens did not identify any specific

conditions that sentencing counsel’s allegedly deficient

performance failed to uncover. He only generally alleged that

sentencing counsel did not effectively evaluate whether

Dickens “suffer[ed] from any medical or mental impairment.”

This new evidence of specific conditions (like FAS and

organic brain damage) clearly places Dickens’s Strickland

claim in a “significantly different” and “substantially

improved” evidentiary posture. See Nevius, 852 F.2d at 470;

Aiken, 841 F.2d at 883. As such, the Arizona courts did not

have a fair opportunity to evaluate Dickens’s altered IAC

claim. Therefore, the district court correctly determined that

Dickens’s newly enhanced Strickland claim is procedurally

barred.

2. Cause and Prejudice under Martinez

Martinez announced an exception to the longstanding

Coleman rule that ineffective assistance of PCR counsel

cannot establish cause to overcome procedural default.

132 S. Ct. at 1315. The Supreme Court held:

Where, under state law, claims of ineffective

assistance of trial counsel must be raised in an

initial-review collateral proceeding, a

DICKENS V. RYAN 33

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.

Id. at 1320. As such, to establish “cause” to overcome

procedural default under Martinez, a petitioner must show:

(1) the underlying ineffective assistance of trial counsel claim

is “substantial”; (2) the petitioner was not represented or had

ineffective counsel during the PCR proceeding; (3) the state

PCR proceeding was the initial review proceeding; and

(4) state law required (or forced as a practical matter) the

petitioner to bring the claim in the initial review collateral

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

Here, there is no dispute with respect to elements (3) and

(4), because Arizona does not permit a petitioner to bring an

IAC claim on direct appeal. Martinez, 132 S. Ct. at 1313,

1320. Arizona law requires a petitioner to bring such a claim

in a collateral review proceeding. Id. The district court,

applying the law as it stood at that time, correctly held that

Dickens could not establish cause for his procedural default

based on the alleged ineffectiveness of his PCR counsel.

However, Martinez may provide a path for Dickens to

demonstrate cause, if he can show the first two Martinez

elements: (1) the claim is substantial and (2) that his PCR

counsel was ineffective under Strickland. Thus, we vacate

the district court’s ruling regarding whether cause existed to

overcome the procedural default of Dickens’s newly-

enhanced claim of ineffective assistance of sentencing

counsel. We remand for the district court to consider the

issue anew in light of Martinez. See Strategic Diversity, Inc.

34 DICKENS V. RYAN

v. Alchemix Corp., 666 F.3d 1197, 1206 (9th Cir. 2012)

(“Because the district court did not have the benefit of recent

Supreme Court authority, we vacate the ruling on these

grounds and remand.”).

The state presents various arguments to convince us that

Dickens is not entitled to remand under Martinez and that our

conclusion would contravene Cullen v. Pinholster, 131 S. Ct.

1388 (2011), which the Supreme Court decided during the

pendency of this appeal. We decline to address many of these

arguments based on our remand regarding the applicability

and impact of Martinez. However, we provide guidance to

the district court on the following points: (a) Pinholster’s

potential effect on Dickens’s “new” IAC claim; (b) the effect

of Dickens’s other IAC claims on the “new” claim; and (c)

whether § 2254(e)(2) bars Dickens’s request for an

evidentiary hearing on remand.

a. Pinholster

We reject any argument that Pinholster bars the federal

district court’s ability to consider Dickens’s “new” IAC

claim. The state argues that the district court cannot consider

new allegations or evidence proffered for the first time to the

district court. In Pinholster, the Supreme Court made clear

that a federal habeas court may not consider evidence of a

claim that was not presented to the state court. 131 S. Ct. at

1398. However, this prohibition applies only to claims

previously “adjudicated on the merits in State court

proceedings.” Id. at 1401; see also 28 U.S.C. § 2254(d).

Pinholster does not bar Dickens from presenting evidence

of his “new” IAC claim, because the claim was not

“adjudicated on the merits” by the Arizona courts. While the

DICKENS V. RYAN 35

Arizona courts did previously adjudicate a similar IAC claim,

the new allegations and evidence “fundamentally altered” that

claim, as discussed above. See, e.g., Aiken, 841 F.2d at 883.

Pinholster says nothing about whether a court may consider

a “new” claim, based on “new” evidence not previously

presented to the state courts. See 131 S. Ct. at 1401 n.10.

Indeed, the Pinholster court expressly declined to “decide

where to draw the line between new claims and claims

adjudicated on the merits.” Id. Thus, Pinholster does not

affect earlier cases like Vasquez, Aiken, and Nevius, or a

federal habeas court’s ability to consider new evidence where

the petitioner successfully shows cause to overcome the

procedural default.

b. Dickens’s “Other” IAC Claims

We reject the similar argument that Dickens’s other IAC

claims, which were previously “adjudicated on the merits” by

the Arizona Courts, foreclose the new IAC claim. Martinez

allows a petitioner to argue “cause” based on PCR counsel’s

ineffectiveness for counsel’s failure to raise a substantial trial

counsel IAC claim. 132 S. Ct. at 1318–19. Martinez

contains no language limiting this “equitable exception”

simply because a petitioner brought other IAC claims that

were exhausted. See id. Because courts evaluate procedural

default on a claim-by-claim basis, it follows that Martinez

would allow a petitioner to show cause, irrespective of the

presence of other, separate claims.

c. Dickens’s Request for an Evidentiary

Hearing

We also reject the state’s argument that, even if Martinez

applies to the standard for Dickens to show cause,

36 DICKENS V. RYAN

§ 2254(e)(2) will bar Dickens from introducing the new

evidence to the district court. Petitioners seeking habeas

relief cannot obtain an evidentiary hearing on their claims

unless they comply with § 2254(e)(2). Section 2254(e)(2)

severely restricts a petitioner’s ability to obtain a hearing on

a claim for relief where the petitioner “failed to develop the

factual basis of a claim in State court proceedings” due to “a

lack of diligence, or some greater fault, attributable to the

prisoner or the prisoner’s counsel.” See Lopez v. Ryan,

630 F.3d 1198, 1206 (9th Cir. 2011). A petitioner’s

attorney’s “fault” is generally attributed to the petitioner for

purposes of § 2254(e)(2)’s diligence requirement. See

Williams v. Taylor, 529 U.S. 420, 437–40 (2000).

Section 2254(e)(2), however, does not bar a hearing

before the district court to allow a petitioner to show “cause”

under Martinez. When a petitioner seeks to show “cause”

based on ineffective assistance of PCR counsel, he is not

asserting a “claim” for relief as that term is used in

§ 2254(e)(2); indeed, such a claim of ineffective assistance of

PCR counsel is not a constitutional claim. See Martinez,

132 S. Ct. at 1319–20. Instead, the petitioner seeks, on an

equitable basis, to excuse a procedural default. See id. A

federal court’s determination of whether a habeas petitioner

has demonstrated cause and prejudice (so as to bring his case

within Martinez’s judicially created exception to the

judicially created procedural bar) is not the same as a hearing

on a constitutional claim for habeas relief. See Coleman,

501 U.S. at 750 (recognizing the “cause and prejudice”

exception to procedural default); Woodford v. Ngo, 548 U.S.

81, 91 (2006) (“[H]abeas law includes the judge-made

doctrine of procedural default”); Dretke v. Haley, 541 U.S.

386, 394 (2004) (describing the “various exceptions to the

procedural default doctrine” as “judge-made rules”).

DICKENS V. RYAN 37

Therefore, a petitioner, claiming that PCR counsel’s

ineffective assistance constituted “cause,” may present

evidence to demonstrate this point. The petitioner is also

entitled to present evidence to demonstrate that there is

“prejudice,” that is that petitioner’s claim is “substantial”

under Martinez. Therefore, a district court may take evidence

to the extent necessary to determine whether the petitioner’s

claim of ineffective assistance of trial counsel is substantial

under Martinez.

The facts and procedural posture of Dickens’s case

illustrate this point. Dickens had a new claim of ineffective

assistance of counsel. Because the claim was new, it was

procedurally defaulted (thus technically exhausted).

However, if Dickens can show cause and prejudice to excuse

a procedural default, AEDPA no longer applies and a federal

court may hear this new claim de novo. Pirtle v. Morgan,

313 F.3d 1160 (9th Cir. 2002). Martinez may provide a

means to show “cause” to overcome the default and reach the

merits of the new claim. Because § 2254(e)(2) by its terms

does not prevent consideration of the substantive evidence of

the claim to the extent necessary to determine if Dickens has

successfully proven “cause,” Dickens will have a fair

opportunity to show cause and prejudice so as to overcome

the procedural bar of the otherwise defaulted claim. See

Martinez, 132 S. Ct. at 1317.17 Thus, § 2254(e)(2) does not

17

The state argues that Martinez does not apply, because the assertion

of ineffective assistance of PCR counsel as cause must itself be exhausted

or it is procedurally barred. It is true that “the exhaustion doctrine . . .

generally requires that a claim of ineffective assistance be presented to the

state courts as an independent claim before it may be used to establish

cause for a procedural default.” Murray v. Carrier, 477 U.S. 478, 488–89

(1986) (citation omitted). However, the case law in light of Martinez now

indicates that there is no requirement that a petitioner assert an ineffective

38 DICKENS V. RYAN

bar a cause and prejudice hearing on Dickens’s claim of PCR

counsel’s ineffectiveness, which requires a showing that

Dickens’s underlying trial-counsel IAC claim is substantial.

CONCLUSION

For the foregoing reasons, the judgment of the district

court denying Dickens’s petition for writ of habeas corpus is

AFFIRMED in part, VACATED in part, and

REMANDED.

The parties shall bear their own costs.

Chief Judge KOZINSKI, with whom Judges BYBEE and

CALLAHAN join, concurring in part:

I agree with the majority that the Arizona Supreme Court

didn’t unreasonably apply the relevant Eighth Amendment

precedent—Enmund v. Florida, 458 U.S. 782 (1982), and

Tison v. Arizona, 481 U.S. 137 (1987)—in affirming

Dickens’s death sentence. See Maj. Op. Parts I & II. I write

assistance of PCR counsel claim as cause in state court in order to

demonstrate cause in federal court. In Martinez, the first time the

petitioner argued ineffective assistance of PCR counsel was in his federal

habeas petition. See Martinez, 132 S. Ct. at 1314; Martinez v. Schriro,

623 F.3d 731, 734 (9th Cir. 2010), rev’d by Martinez, 132 S. Ct. 1309.

The Supreme Court did not find the claim barred for not being presented

to the state courts. Therefore, where Martinez applies, there seems to be

no requirement that the claim of ineffective assistance of PCR counsel as

cause for an ineffective-assistance-of-sentencing-counsel claim be

presented to the state courts.

DICKENS V. RYAN 39

separately because I believe the Arizona Supreme Court’s

application of Enmund and Tison was more than just

reasonable—it was entirely correct.

In Enmund, the Supreme Court overturned a getaway

driver’s death sentence because there was no evidence that he

killed, attempted to kill or intended the death of the victim.

Enmund, 458 U.S. at 796–98. As best the record showed,

Enmund was a schmo hired to drive the getaway car for a

robbery gone wrong; there was no evidence that he planned

or otherwise participated in the crime. Id. at 786. Five years

later, Tison held that two brothers who played major roles in

a violent jailbreak and kidnaping could be sentenced to death,

even though the brothers didn’t intend or expect that anyone

would be killed. Tison, 481 U.S. at 158. The Court held that

a major participant in a deadly crime may be sentenced to

death if he acted with reckless indifference to human life. Id.

Enmund and Tison lay out a simple rule: A felony-

murderer may be death-eligible if he kills intentionally or acts

with reckless indifference. If sentenced under a recklessness

theory, he must also have been a major participant in the

felony that resulted in the victim’s death. Id. The Arizona

Supreme Court found that Dickens didn’t intend to kill but

that he was both recklessly indifferent to human life and a

major participant in the underlying felony. State v. Dickens,

926 P.2d 468, 490 (Ariz. 1996). As I see it, the Arizona

Supreme Court followed Tison to the letter in affirming

Dickens’s death sentence.

Yet five of my esteemed colleagues find this result to be

not just wrong but unreasonable. See Christen Dissent. For

them, Tison is but a “narrow exception to the Enmund rule”

that only those who kill or intend to kill can be sentenced to

40 DICKENS V. RYAN

death. Id. at 78. Dickens doesn’t fit into this narrow

exception, my colleagues believe, because his crime was

more like that of Earl Enmund (who, like Dickens, drove the

getaway car) than the Tison brothers. Id. at 74; see also id. at

88. Because Enmund set aside a getaway driver’s death

sentence, my colleagues find it unreasonable to reach a

different result in our case. Id. at 77–78 (“The Arizona

Supreme Court’s decision to affirm the death penalty in

Dickens’s case contravenes clearly established law set out in

Enmund.”).

But the dissenters’ fact-specific reading of Enmund and

Tison is incorrect: To the extent Enmund suggested that only

intentional murderers may be sentenced to death, Tison

overruled it. More specifically, Tison made clear that

getaway drivers can be sentenced to death; they just can’t be

sentenced to death if all they do is to serve as getaway

drivers. As the Tison Court put it, Enmund prohibits

“imposition of the death penalty for felony murder

simpliciter,” 481 U.S. at 147, but this doesn’t mean a showing

of intent to kill is required in every case; the Eighth

Amendment may also be satisfied by showing reckless

indifference to human life. Id. at 157 (“A narrow focus on

the question of whether or not a given defendant ‘intended to

kill,’ . . . is a highly unsatisfactory means of definitively

distinguishing the most culpable and dangerous of

murderers.”). To conclude that Dickens can’t be sentenced

to death because his conduct more “closely resembles the

actions of Earl Enmund” than the Tison brothers, Christen

Dissent at 74, misses the point of Tison: The State made no

showing that Enmund was reckless because it (mistakenly)

thought he could be sentenced to death on a strict liability

felony-murder theory. Enmund, 458 U.S. at 786.

DICKENS V. RYAN 41

The evidence shows that Dickens easily satisfies Tison’s

culpability requirements: He planned an armed robbery,

convinced an unstable and violent teenager to carry it out,

watched the crime transpire, picked up his confederate after

the shootings, fled the scene and destroyed evidence. State v.

Dickens, 926 P.2d at 474–75; see also Maj. Op. at 5–10.

More than just technically establishing Dickens’s death-

eligibility, the harrowing facts proved at trial fit squarely

within Tison’s rationale: Such reckless murderers are

“among the most dangerous and inhumane of all,” and their

indifference to human life is “every bit as shocking to the

moral sense as an ‘intent to kill.’” Tison, 481 U.S. at 157. I

therefore agree with the Arizona Supreme Court that

Dickens’s death sentence was appropriate under Tison.

Nonetheless, eleven thoughtful, conscientious judges

came to (at least) three disparate conclusions on this issue.

See Christen Dissent at 75–89 (state court was unreasonable);

Watford Concurrence (state court was incorrect but

reasonable); Maj. Op. at 14–26 (state court wasn’t

unreasonable); Kozinski Concurrence (state court was

correct). The fact that decades after Tison we still have such

sharp disagreement about what it means suggests that

Enmund is a hazard to navigation and should be overruled.

We can’t do this, but the Supreme Court can and should.

WATFORD, Circuit Judge, concurring:

I join the majority’s opinion, except to the extent that it

suggests the Arizona Supreme Court correctly applied Tison

v. Arizona, 481 U.S. 137 (1987), and Enmund v. Florida,

458 U.S. 782 (1982), to the facts of Dickens’ case. I agree

42 DICKENS V. RYAN

with the majority that the Arizona Supreme Court’s

application of those precedents wasn’t “unreasonable” under

28 U.S.C. § 2254(d)(1). As construed by the United States

Supreme Court, § 2254(d)(1) allows us to grant relief only

“where there is no possibility fairminded jurists could

disagree that the state court’s decision conflicts with [the]

Court’s precedents.” Harrington v. Richter, 131 S. Ct. 770,

786 (2011). I view that standard as functionally equivalent to

the standard developed under Teague v. Lane, 489 U.S. 288

(1989); it will seldom (if ever) be satisfied unless the

petitioner shows that the Supreme Court’s cases “dictate the

result” urged by the petitioner. Saffle v. Parks, 494 U.S. 484,

490 (1990). As the majority explains, neither Tison nor

Enmund dictates the result in Dickens’ case. His case falls in

the gap between those two precedents, and fairminded jurists

could expand either Enmund’s general rule or Tison’s

exception to encompass Dickens’ conduct.

In these circumstances, the Supreme Court has held that

we must give “deference” to the Arizona Supreme Court’s

interpretation of Tison and Enmund, even if we believe the

state court’s interpretation is erroneous. Lockyer v. Andrade,

538 U.S. 63, 75 (2003). Had we been permitted instead to

grant relief based on our own “independent evaluation” of

those precedents, Wright v. West, 505 U.S. 277, 305 (1992)

(O’Connor, J., concurring in the judgment), I would have

held that the Eighth Amendment bars Dickens’ execution.

DICKENS V. RYAN 43

CALLAHAN, Circuit Judge, joined by KOZINSKI, Chief

Judge, and BYBEE, Circuit Judge, concurring and dissenting:

I concur in parts I and II of the majority opinion’s

discussion. However, I respectfully dissent from part III of

its discussion. The majority fails to recognize that there are

three strikes against Dickens and he should be out of court.

Strike one: Dickens is not eligible for the narrow exception to

the exhaustion requirement that the Supreme Court

recognized in Martinez v. Ryan, 132 S. Ct. 1309 (2012),

because he raised his claim of ineffective assistance of

counsel (“IAC”) in state court and the claim was rejected on

its merits. Strike two: Dickens’s allegations that he suffers

from organic brain damage and Fetal Alcohol Syndrome

(“FAS”) do not amount to a new claim and do not

fundamentally alter the IAC claim that he advanced in state

court and which the state court reasonably rejected. Strike

three: were we to review the performance of sentencing

counsel on its merits, we would have to conclude that counsel

adequately presented mitigating evidence and that even if

there were some failings, they were not prejudicial. We

should affirm the district court’s denial of Dickens’s habeas

petition.

I

The majority opinion fails to appreciate that the

differences in procedural posture between this case and

Martinez renders the Martinez exception inapplicable.

a. The judicial proceedings in Martinez.

While his direct appeal was still pending, Martinez began

a state collateral proceeding. Martinez, 132 S. Ct. at 1314.

44 DICKENS V. RYAN

“Despite initiating this proceeding, [his appointed habeas]

counsel made no claim trial counsel was ineffective and later

filed a statement asserting she could find no colorable claims

at all.” Id. The state trial court gave Martinez notice that he

could file a pro se petition in support of postconviction relief.

Id. Martinez did not respond, and the state trial court

“dismissed the action for postconviction relief, in effect

affirming counsel’s determination that Martinez had no

meritorious claims.” Id. The Arizona Court of Appeals

affirmed Martinez’s conviction, and the Arizona Supreme

Court denied review. Id.

“About a year and a half later, Martinez, now represented

by new counsel, filed a second notice of postconviction relief

in the Arizona trial court.” Id. The Supreme Court

explained:

Martinez claimed his trial counsel had been

ineffective for failing to challenge the

prosecution’s evidence. He argued, for

example, that his trial counsel should have

objected to the expert testimony explaining

the victim’s recantations or should have called

an expert witness in rebuttal. Martinez also

faulted trial counsel for not pursuing an

exculpatory explanation for the DNA on the

nightgown. Martinez’s petition was

dismissed, in part in reliance on an Arizona

Rule barring relief on a claim that could have

been raised in a previous collateral

proceeding. Martinez, the theory went,

should have asserted the claims of ineffective

assistance of trial counsel in his first notice

for postconviction relief. The Arizona Court

DICKENS V. RYAN 45

of Appeals agreed. It denied Martinez relief

because he failed to raise his claims in the

first collateral proceeding. The Arizona

Supreme Court declined to review Martinez’s

appeal.

132 S. Ct. at 1314 (citations omitted).

Martinez then filed a habeas petition in the District Court

for the District of Arizona. That court “denied the petition,

ruling that Arizona’s preclusion rule was an adequate and

independent state-law ground to bar federal review.” Id. at

1315. We affirmed, relying “on general statements in

Coleman that, absent a right to counsel in a collateral

proceeding, an attorney’s errors in the proceeding do not

establish cause for a procedural default.” Id. The Supreme

Court granted certiorari and issued its opinion in Martinez.

b. The judicial proceedings in Dickens’s case.

The procedural posture for Dickens is different. On direct

appeal, the Arizona Supreme Court affirmed his conviction

and sentence. State v. Dickens, 926 P.2d 468 (Ariz. 1996).

In August 1999, Dickens filed an action for postconviction

relief (“PCR”) in the state trial court. In October 2000, the

trial court issued a 33-page order denying relief. Most of the

order addressed the nine allegations of IAC by trial and

appellate counsel, which included a claim that Dickens “was

denied the effective assistance of counsel in the penalty

stage.” Dickens presented a mitigation specialist who testified

that, in her opinion, defense counsel’s preparation for the

mitigation and sentencing phase was inadequate and

unreliable. The trial court disagreed, writing:

46 DICKENS V. RYAN

The record reflects that defense counsel

effectively elicited the testimony of mental

health experts, family members and support

witnesses who were well qualified and

credible. Defense counsel presented

numerous mitigating factors at the sentencing

hearing. The performance of defense counsel

is not to be judged by the outcome. Of course

a person, exercising hindsight, can urge that

more should have been done, however, under

the circumstances at the time, defense

counsel’s assistance to Petitioner both in trial

and during the penalty phase was

professional, reasonable and effective. Most

certainly, it did not fall to the level of

ineffective assistance of counsel as set forth in

Strickland. Further, Petitioner has failed to

demonstrate that he was prejudiced by any

performance of defense counsel.

Concluding on this claim, it is noted that it

was the defendant/Petitioner’s conduct, state

of mind and participation in these crimes that

led to the jury verdicts and the sentence

imposed. It was not any inadequacy upon the

part of either trial counsel or appellate

counsel.

Dickens filed a petition for review with the Arizona Supreme

Court, which the court summarily denied.

Dickens then filed a habeas petition in the District Court

for Arizona. On July 14, 2008, the district court denied the

petition in a 145-page decision. Among the claims the court

DICKENS V. RYAN 47

considered and denied was Dickens’s claim of IAC by trial

counsel (Claim 19). The district court carefully considered

the performances of both trial counsel and PCR counsel and

concluded that trial counsel’s performance at sentencing was

neither deficient nor prejudicial.

c. Analysis.

A comparison of the cases’ procedural postures reveals

why the Martinez exception is not available to Dickens. In

Martinez, (1) Martinez’s claim of trial counsel IAC was not

raised in his first state PCR petition; (2) it was raised in a

second state PCR petition which the state court held to be

procedurally barred; and (3) the second state PCR petition

presented evidence of IAC by trial counsel. In contrast:

(a) Dickens’s claim of trial counsel IAC was raised and

denied on its merits by the state court in his first PCR

petition; (b) Dickens never raised the claim of PCR counsel’s

alleged IAC in a state court; and (c) Dickens’s assertion that

trial counsel should have investigated whether he suffered

from FAS and organic brain damage was raised for the first

time in his federal habeas petition and has never been

presented to a state court.

These differences disqualify Dickens from the Martinez

exception on two grounds. First, unlike Martinez, whose trial

counsel IAC claim was held to be procedurally defaulted by

the state courts, Dickens did raise his claims of IAC by trial

counsel in his first state PCR petition, and the claim was

rejected on its merits. Second, unlike Martinez, Dickens has

not sought to raise his “new” claim of trial counsel IAC in

48 DICKENS V. RYAN

any second or successive state PCR petition.1 Because

Dickens’s claim was not deemed procedurally barred by the

Arizona state courts, he does not need, and cannot qualify for,

the Martinez exception to the general rule that on a habeas

petition a federal court will not consider an issue that was not

raised in state court.

The requirement that a state prisoner first raise his claims

in state court was emphasized by the Supreme Court in

Cullen v. Pinholster, 131 S. Ct. 1388 (2011). The Court held

that “review under § 2254(d)(1) is limited to the record that

was before the state court that adjudicated the claim on the

merits,” and stressed that this ruling was “compelled by the

broader context of the statute as a whole, which demonstrates

Congress’ intent to channel prisoners’ claims first to the state

courts.” 131 S. Ct. at 1398–99 (internal quotation marks

omitted). The Court specifically noted that “[i]t would be

contrary to that purpose to allow a petitioner to overcome an

adverse state-court decision with new evidence introduced in

a federal habeas court and reviewed by that court in the first

instance effectively de novo.” Id. at 1399.

The remand in Martinez did not violate the law or spirit

of Pinholster because Martinez had presented his claim of

trial counsel ineffectiveness to a state court in his second PCR

petition (that the state court had held was procedurally

defaulted). See Martinez, 132 S. Ct. at 1314. Moreover, his

1

The majority asserts that “the first time [Martinez] argued ineffective

assistance of PCR counsel was in his federal habeas petition.” Maj. at 38

n.17. However, at a minimum, the alleged IAC of PCR counsel was

implicit in Martinez’s second state habeas petition. Certainly the factual

basis for seeking an exception to the procedural bar was presented to the

state court. See Martinez, 132 S. Ct. at 1314.

DICKENS V. RYAN 49

initial PCR counsel’s ineffectiveness was apparent from the

state court record, as she had filed a statement asserting that

she could find no colorable claim to raise in the PCR petition

that she had filed for Martinez. Id. Thus, when Martinez was

remanded, the district court could determine on the record

presented to the state courts whether Martinez’s first PCR

counsel had been ineffective, and whether his claim of trial

IAC was substantial. Id. at 1321. In contrast, although

Dickens raised his mental health as a mitigating factor, there

is nothing in the state court record supporting Dickens’s “new

claims” of organic brain damage and FAS.

Thus, under Pinholster, the federal courts may not

consider Dickens’s unexhausted IAC claim.2 This does not

necessarily mean that Dickens is without a course of action.

Dickens may still file a successive PCR petition in the state

court alleging IAC by trial counsel and initial PCR counsel.

If the state courts were to deny Dickens relief on the ground

that the claim was procedurally defaulted, then he could file

a federal habeas petition and argue for the application of the

Martinez exception.3 This process ensures that state courts

2

To the extent that Dickens contends that his trial counsel IAC claim

was exhausted (as he initially did), the district court had jurisdiction to

consider it. However, the district court’s careful consideration of the IAC

claim persuasively shows that Dickens cannot prevail under the AEDPA

standard. As set forth in section III, infra, I agree that Dickens has not

shown that trial counsel’s performance met either the performance or the

prejudicial prong of the standard for IAC set forth in Strickland v.

Washington, 466 U.S. 668 (1984).

3

Of course, Dickens might be required to explain why he did not file his

successive petition earlier. One response might be that until the Supreme

Court decided Martinez, he was barred by Coleman v. Thompson,

501 U.S. 722 (1991), from obtaining relief based on PCR counsel’s

ineffectiveness.

50 DICKENS V. RYAN

get the first crack at new claims while preserving the

defendant’s ability to file a federal habeas petition if relief is

denied.

This procedure was followed in Trevino v. Thaler, 133 S.

Ct. 1911 (2013), in which the Supreme Court expanded

Martinez to apply to states which permit defendants to raise

IAC in direct appeals but prefer that they do so in PCR

petitions. Id. at 1915. In Trevino, the federal habeas petition

“claimed for the first time that Trevino had not received

constitutionally effective counsel during the penalty phase of

his trial.” Id. The district court then “stayed proceedings to

permit Trevino to raise this claim in state court.” Id. at 1916.

Trevino did so, but the Texas court concluded that because he

“had not raised this claim during his initial postconviction

proceedings, he had procedurally defaulted the claim.” Id.

Trevino returned to the federal court which denied relief

leading ultimately to the Supreme Court’s opinion. Thus, in

both Martinez and Trevino, state courts determined, prior to

the federal courts’ rulings on the federal petitions, that the

defendants’ IAC claims were procedurally barred.

In contrast, the majority opinion, by allowing a state

defendant to raise a “new” IAC claim for the first time in his

federal petition, not only assumes that the state court would

find the claim to be procedurally barred,4 but also creates an

4

The parties have informed us through letters submitted pursuant to

Federal Rule of Appellate Procedure 28(j) that there are now decisions by

superior courts in Arizona and by the Court of Appeals of Arizona,

Division 2, holding that Martinez does not change Arizona law. While

these may reflect Arizona law as it is, they are not binding on the Arizona

Supreme Court and, of course, the state courts have not had an opportunity

to fully consider the Supreme Court’s recent opinion in Trevino.

Furthermore, a review of the cases cited by the parties suggests that courts

DICKENS V. RYAN 51

incentive for the defendant not to raise an IAC claim in his

state PCR petition if he thinks the federal courts will be more

receptive to his claim. Why wouldn’t a defendant hold back

or forego developing one claim in his first postconviction

petition in the hope that he may earn another round of

postconviction proceedings by raising it for the first time in

his federal habeas petition? The majority’s approach

encourages state defendants to concoct “new” IAC claims

that are nothing more than fleshed-out versions of their old

claims supplemented with “new” evidence. This cannot have

been the Supreme Court’s intention, nor is it an unintended

but inherent consequence of the Supreme Court’s opinions in

Martinez and Pinholster. To the contrary, Pinholster requires

that a defendant first raise his claim of trial counsel IAC in

state court, and Martinez provides that when defendant does

this, the state court’s determination that the successive PCR

petition is procedurally barred will not prevent federal court

review when the failure to raise trial counsel IAC in the initial

PCR petition was due to PCR counsel’s IAC. Thus, Martinez

is, and should be construed as, only “a narrow exception” to

the preclusion rule.5 See Martinez, 132 S. Ct. at 1315.

may have determined that there was no merit to the particular petitioners’

Martinez claims, rather than ruling that an otherwise meritorious claim of

trial counsel IAC would not be considered. Of course, the Arizona courts

may determine whether as a matter of state law they will modify their

preclusion rule in light of Martinez and Trevino. However, we should not

presume that they will forego considering an otherwise meritorious claim

of trial counsel IAC that postconviction counsel failed to raise in favor of

having the claim considered by a federal court in the first instance.

5

I have no quarrel with the statement in the plurality opinion in Detrich

that the Martinez exception may apply where PCR counsel raised some

issues of trial counsel IAC, but not the new substantial claim of trial

counsel IAC that he seeks to raise for the first time in his federal habeas

petition. See Detrich v. Ryan, ___ F.3d ___, 2013 WL 4712729, *8–10

52 DICKENS V. RYAN

Dickens raised his claim of trial counsel IAC in state court

and it was rejected on the merits. He does not qualify for the

Martinez exception.

II

Even if the Martinez exception were applicable to

Dickens’s case, I would affirm the district court’s denial of

the writ because the record shows that Dickens has not raised

a new claim.

We all agree that Dickens did not present his allegations

of organic brain damage and FAS to the state courts. The

majority, however, then leaps to the conclusion that Dickens

therefore has “defaulted on his IAC claim.” This conclusion

overlooks the facts that Dickens did raise claims of IAC at the

sentencing stage based on his alleged mental health issues,

and that the state court rejected those claims on the merits.

(9th Cir. 2013) (en banc). Here, as set forth infra, Dickens has not raised

a new substantial claim of trial counsel IAC separate from the claims

rejected on their merits by the state courts. However, where such an

assertion is made, because there has been no state court determination that

the new claim is procedurally barred, the district court should adhere to

the procedure followed in Trevino, and stay proceedings to permit the

petitioner to attempt to raise the new claim in state court. See Trevino,

133 S. Ct. at 1916.

In our case, Arizona has represented that it would be futile for

Dickens to present his current IAC claim to the Arizona courts. Thus,

Arizona may well have waived any argument that Dickens’s current IAC

claim is not procedurally barred. See Trest v. Cain, 522 U.S. 87, 89

(1997); Lynce v. Mathis, 519 U.S. 433, 436–37 n.4 (1997); Gray v.

Netherland, 518 U.S. 152, 165–66 (1996). This possibility is not

dispositive, however, because as explained in Sections II and III of this

dissent, Dickens’s claim is neither new nor meritorious.

DICKENS V. RYAN 53

Moreover, under our case law, Dickens’s new allegations do

not constitute a new claim. Thus, because Dickens’s claim of

trial counsel IAC was raised and rejected on the merits in his

state PCR petition, the Martinez exception is not available to

Dickens.

In his PCR petition in the state superior

court, Dickens alleged that he had received

IAC at the sentencing stage. PCR counsel

called as a witness a mitigation specialist who

testified that defense counsel’s preparation for

the mitigation and sentencing phase was

inadequate and unreliable. The district court

in its decision noted that Dr. Roy, the clinical

psychologist who assisted Dickens’s counsel,

testified that defense counsel gave him

everything he needed to start an investigation

and did not place any limits on his work. The

district court further noted that trial counsel

had been aware of the significance of the

sentencing stage of trial, had secured the

cooperation of Dickens and his family, had

access to school and medical records, and had

considered numerous possibilities of

neurological impairment, but that trial counsel

had concluded that “neurological testing did

not establish an organic basis.” The district

court further rejected arguments that defense

counsel’s performance was below prevailing

professional norms, noting that counsel had

54 DICKENS V. RYAN

properly informed Dr. Roy and reasonably

relied on his advice.6

Dickens’s present claim of trial counsel IAC simply adds

additional factual allegations to his initial claim of trial

counsel IAC. In state court, Dickens argued that counsel’s

preparation was inadequate. He continues to so argue, but

now offers the additional allegation that, had counsel

conducted an adequate investigation, he would have learned

that Dickens suffered from organic brain damage and FAS.

But additional factual allegations do not state a new

claim. In Weaver, we “acknowledge[d] that the precise

factual predicate for Weaver’s claim changed after the district

court conducted its evidentiary hearing,” but concluded that

“new factual allegations do not render a claim unexhausted

unless they ‘fundamentally alter the legal claim already

considered by the state courts.’” Weaver v. Thompson,

197 F.3d 359, 364 (9th Cir. 1999) (quoting Chacon v. Wood,

36 F.3d 1459, 1468 (9th Cir. 1994). Similarly, here, although

“the precise factual predicate” of Dickens’s IAC claim

changed to specifically allege that he suffers from organic

brain damage and FAS, his legal claim of IAC remains the

same: counsel was ineffective because he failed to adequately

6

The district court stated:

Petitioner’s complaint that counsel did not provide

enough information or guidance to Dr. Roy is not

supported by the record. It is evident that counsel,

recognizing the significance of the penalty stage of

trial, investigated Petitioner’s background and

presented the relevant information to Dr. Roy and

offered it to the trial court in his sentencing

memorandum and through expert and lay testimony.

DICKENS V. RYAN 55

investigate Dickens’s mental health. There would be no end

to litigation if every new allegation as to what counsel would

have found had he properly investigated a defendant’s

background constituted a “new” claim.7

Moreover, the record shows that Dr. Roy did consider

brain damage, and his report noted that Dickens’s mother

consumed wine at least three times per week while she was

pregnant with Dickens. The record reflects that Dickens has

not raised a new claim.

7

This concern is illustrated by our recent decision in Schad v. Ryan,

732 F.3d 963 (9th Cir. 2013). There we rejected petitioner’s contention

that he was presenting a “new” issue of trial counsel IAC. We noted:

Schad’s principal contention is that the district court

erred because he is presenting a different ineffective

assistance claim than that presented in state court. He

is now contending that the federal claim of counsel

ineffectiveness with respect to the effect of childhood

abuse is somehow distinct from the earlier claim of

ineffectiveness in failing to investigate the childhood

abuse itself. The two cannot be so easily separated,

however, because the relevant mitigating factor in

sentencing was always the effect of the childhood abuse

on his adult mental state.

Id. at 966. Similarly, Dickens’s “new” assertion is based on what he now

contends trial counsel would have learned if he had adequately

investigated his mental health, but Dickens’s underlying claim, which was

rejected by the state courts, was and is that trial counsel failed to

adequately investigate his mental health.

56 DICKENS V. RYAN

Because Dickens has not raised a new claim, we must

view his IAC claim through the AEDPA lens.8 This means

that for relief on his federal habeas petition, Dickens must

show that the state court’s denial of claim of IAC was an

unreasonable application of clearly established Federal law,

or an unreasonable determination of the facts. 28 U.S.C.

§ 2254(d); see Harrington v. Richter, 131 S. Ct. 770, 785

(2011). As further demonstrated in the following section, the

state court’s denial of Dickens’s claim of trial counsel IAC is

neither an unreasonable application of Federal law nor an

unreasonable determination of the facts.

The majority, however, relies on two pre-AEDPA cases,

Aiken v. Spalding, 841 F.2d 881 (9th Cir. 1988), and Nevius

v. Sumner, 852 F.2d 463 (1988), to argue that Dickens has

fundamentally altered his legal claim of IAC. This argument

is not persuasive. In Aiken, the petitioner sought to present

for the first time in his federal habeas petition “decibel-level”

evidence to support his claim that he had requested counsel

during his interrogation. Id. at 883. We held that this was the

“very type of evidence which the state should consider in the

8

Indeed, in his opening brief, filed before the Supreme Court’s opinion

in Martinez, Dickens argued that he:

alleged that his trial counsel failed to conduct the

necessary background mitigation investigation and

therefore did not adequately prepare defense expert, Dr.

Roy. This was the same claim that he raised in his

federal habeas proceedings with the exception of

additional factual support for the claim – namely that

Dickens suffers from FAS and organic brain damage.

In his brief, Dickens argues that because he exhausted his remedies in

state court, “the district court was required to consider the additional facts

in support of his claim.”

DICKENS V. RYAN 57

first instance,” and accordingly directed the district court to

dismiss the habeas petition without prejudice for failure to

exhaust state remedies. Id. at 883–84. Like the decibel-level

evidence in Aiken, the evidence that Dickens suffers from

organic brain damage and FAS is “the very type of evidence

which the state should consider in the first instance.’” Id. at

883.

In Nevius, the defendant sought to challenge the

prosecutor’s seven peremptory challenges, excluding

minorities from the jury. 852 F.2d at 466. At oral argument

in the district court on his habeas petition, Nevius’s counsel

made serious allegations concerning alleged comments by the

prosecutor to the defense counsel that were made after the

trial. Id. at 469–70. We recognized that these

representations, “if proven, might have presented in a

different light the factual issues concerning the motivation of

the prosecutor in exercising his peremptory challenges.” Id.

at 470. Nonetheless, we declined to consider the remarks,

noting:

The alleged remarks, however, are not part of

any record in this case. They have not been

presented to the state courts, either on appeal

or during post-conviction proceedings. In

habeas proceedings, the federal courts are not

free to entertain new evidence that places the

claim in a significantly different posture,

when that evidence was never presented to the

state courts.

Id. We concluded that “[if] there is evidence that should be

presented to the state courts, then the attempt must first be

made to present it there and to make a record. Only

58 DICKENS V. RYAN

thereafter, under the appropriate procedural strictures may the

matter be addressed in federal court.” Id. (footnote omitted).

The majority asserts that because we held in Aiken and

Nevius that the new evidence should have been presented to

the state courts, the new evidence must have stated a new or

altered claim. But this is mixing apples and oranges. A state

prisoner seeking federal habeas relief must present all new

evidence to the state courts, regardless of whether the new

evidence supports his existing claim, places the claim in a

different light, or creates a new claim. See Aiken, 841 F.2d at

883. Whether or not Nevius’s allegations created a new

claim, he had to present the facts to the state courts.

Similarly, even if Aiken’s decibel-level evidence only

improved “the evidentiary basis for Aiken’s right-to-counsel

and voluntariness arguments,” Aiken, 841 F.2d at 883, and

did not state a new claim or fundamentally alter the nature of

his claims, the evidence had to be submitted to the state

courts in the first instance. Thus, neither Aiken nor Nevius

provides much guidance on what constitutes a “new” claim.9

Instead, we should apply our more recent standard set forth

in Weaver: “new factual allegations do not render a claim

unexhausted unless they ‘fundamentally alter the legal claim

already considered by the state courts.’” 197 F.3d at 364

(quoting Chacon, 36 F.3d at 1468).

Furthermore, the majority seeks to use Aiken and Nevius

for the exact opposite purpose for which they were decided.

Aiken and Nevius, although pre-AEDPA cases, sought to

9

In addition, we have questioned the continuing validity of cases such

as Aiken and Nevius following the issuance of the Supreme Court’s

opinion in Pinholster. See Stokley v. Ryan, 659 F.3d 802, 808 (9th Cir.

2011).

DICKENS V. RYAN 59

reinforce the standard that newly discovered evidence had to

be presented in the first instance in the state courts.10 Aiken,

841 F.2d at 883. Here, the majority seeks to characterize

Dickens’s new allegations as fundamentally altering his

previously exhausted IAC claim precisely to excuse his

failure to present those allegations to the state courts and to

allow him to present them for the first time in the federal

district court.

This is contrary to the spirit of Aiken and Nevius, and

most importantly, contrary to AEDPA. Title 28 U.S.C.

§ 2254(e)(2) limits when a federal court may hold an

evidentiary hearing on a state prisoner’s federal habeas

petition.11 The majority’s holding circumvents AEDPA by

10

In Aiken, we reiterated the Fifth Circuit’s statement in Dispensa v.

Lynaugh, 826 F.2d 375, 377 (5th Cir. 1987), that:

[Where] a federal habeas petitioner presents newly

discovered evidence or other evidence not before the

state courts such as to place the case in a significantly

different and stronger evidentiary posture than it was

when the state courts considered it, the state courts

must be given an opportunity to consider the evidence.

Aiken, 841 F.2d at 883 (alteration in original).

11

28 U.S.C. § 2254(e)(2) reads:

If the applicant has failed to develop the factual basis of

a claim in State court proceedings, the court shall not

hold an evidentiary hearing on the claim unless the

applicant shows that--

(A) the claim relies on--

(i) a new rule of constitutional law, made retroactive to

60 DICKENS V. RYAN

providing a state prisoner an evidentiary hearing without

inquiring into whether the new claim could or should have

been previously raised. See § 2254(e)(2)(A)(ii). Instead, the

prisoner need only convince a federal court that his claim of

IAC on the part of his PCR counsel is new. He, apparently,

is then entitled to an evidentiary hearing, at least to determine

whether his PCR counsel was actually ineffective and

whether his claim of trial counsel IAC is substantial.

Majority at p. 33. This creates another unnecessary,

expensive, and improper layer to federal court review of state

sentences.

Although I agree with the majority that the “Arizona

courts did not have a fair opportunity to evaluate Dickens’s

altered IAC claim,” Majority at p. 32, it does not follow that

Dickens’s new allegations constitute a new claim subject to

the application of the Martinez exception. Rather, because

Dickens’s new factual allegations do not fundamentally alter

his legal claim of sentencing counsel IAC, which was rejected

by the Arizona courts on its merits, federal court review is

subject to and limited by AEDPA. In sum, Dickens has not

raised a new legal claim.

cases on collateral review by the Supreme Court, that

was previously unavailable; or

(ii) a factual predicate that could not have been

previously discovered through the exercise of due

diligence; and

(B) the facts underlying the claim would be sufficient

to establish by clear and convincing evidence that but

for constitutional error, no reasonable factfinder would

have found the applicant guilty of the underlying

offense.

DICKENS V. RYAN 61

III

Finally, even if I thought that the Martinez exception

applied to this case and that Dickens had raised a new claim,

I would still affirm the district court’s denial of the writ

because the record compels a determination that Dickens

cannot show “cause” and “prejudice” required for relief for

IAC under Strickland, 466 U.S. at 687–96.

In Martinez, the Supreme Court held that a prisoner may

establish default on an IAC claim “where appointed counsel

in the initial-review collateral proceeding, where the claim

should have been raised, was ineffective under the standards

of Strickland.” 132 S. Ct. at 1318. In addition, the prisoner

“must also demonstrate that the underlying ineffective-

assistance-of-trial-counsel claim is a substantial one, which

is to say that the prisoner must demonstrate that the claim has

some merit.” Id.

The record compels the conclusion that Dickens was not

denied effective assistance of sentencing counsel in regard to

his “new” claims of organic brain damage and FAS.12 The

12

Dickens argues that his PCR counsel were ineffective because they

allegedly focused on claims of judicial bias instead of “investigating and

presenting meritorious issues. Dickens complains that counsel “put on no

lay or expert witness to show what evidence would have been presented

had trial counsel properly investigated mitigation and adequately prepared

Dr. Roy for sentencing.” The district court disagreed with Dickens, noting

that in the PCR proceeding, counsel argued that sentencing counsel “did

not adequately prepare Dr. Roy or investigate Petitioner’s background for

mitigating information, particularly with respect to mental impairment.”

Although the record appears to support the district court’s perspective, we

need not evaluate the performance of PCR counsel when sentencing

counsel’s performance was adequate. See Martinez, 132 S. Ct. at 1318

(“[A] prisoner must also demonstrate that the underlying ineffective-

62 DICKENS V. RYAN

district court carefully reviewed the record of Dickens’s

sentencing and concluded that counsel was competent. I

agree. Moreover, there is nothing in the record to suggest

that sentencing counsel knew or should have known that

Dickens possibly suffered from organic brain damage and

FAS. Thus, even if Dickens’s allegations are taken at face

value, the record will not support a finding of “some merit”

in his claims.

The district court’s determinations are not binding but are

illustrative. It noted:

The [trial] court held a five-day sentencing

hearing during which defense counsel called

seven witnesses on Petitioner’s behalf. After

the hearing counsel submitted a 76-page

sentencing memorandum. Counsel listed

n u merous nonstatut ory m i t i gat i ng

circumstances, including Petitioner’s

diagnosis of borderline personality disorder

with narcissistic features; a “troubled

childhood” that featured “substantial sexual

abuse and molestation, which gravely affected

[his] development”; and his failure to receive

necessary mental health treatment.

In order to counter the aggravating factors advanced by the

State, trial counsel “emphasize[d] Petitioner’s allegedly

nonviolent nature and passive role in the murders.” Counsel

enlisted the assistance of Dr. Roy, a clinical psychologist who

assistance-of-trial-counsel claim is a substantial one.”). If trial counsel’s

performance was adequate, the petitioner cannot have been prejudiced by

PCR’s counsel’s alleged failure to challenge trial counsel’s performance.

DICKENS V. RYAN 63

evaluated Dickens and prepared a 59-page report. Dr. Roy’s

report “contained 27 pages of background information,

detailing Petitioner’s childhood, education, medical and

psychological history, employment background and legal

history.” Dr. Roy interviewed Dickens’s parents and his

mentor. Dr. Roy’s report included information on Dickens’s

“reports of sexual abuse, head injuries, and the fact that

Petitioner’s mother drank alcohol while she was pregnant

with Petitioner.”

Dr. Roy’s report recommended neurological

examinations, including EEG and MRI exams. However, at

an October 1993 hearing, counsel, after consulting with Dr.

Roy, informed the court that in light of a CT scan, he no

longer had reason to be concerned with Dickens’s cerebral

function.

Dr. Roy spent over 15 hours interviewing and testing

Dickens. He then testified extensively at the sentencing

hearing. The district court explained:

[Dr. Roy] diagnosed Petitioner with major

depression, severe; mixed personality, with

borderline narcissistic features; and suspected

mild traumatic brain injury. Dr. Roy

described the antecedent of Petitioner’s

depression as his “near annihilation on a

regular basis during his childhood.” Dr. Roy

testified that Petitioner was physically and

sexually abused by his brother, abuse which

was corroborated by Petitioner and his

mother. This experience affected Petitioner’s

ego development and prevented normal

psychosocial development. Petitioner’s

64 DICKENS V. RYAN

“primary experience of the world was being

victimized,” and the resulting stress caused

Petitioner to regress to a fixated state. Dr.

Roy further testified that Petitioner was

sexually abused by a “trusted family friend” at

age six or seven; by “another adult in a

position of authority,” a teacher at age 12, 13,

or 14; and by a law enforcement official.

These experiences “impinge[d] his identity.”

However, according to Dr. Roy, despite these

experiences Petitioner did not develop

aggression. Rather, he dealt with his inner

conflicts – “attempted to undo the trauma to

him” – by helping youthful offenders.

Unfortunately, Petitioner lacked “emotional

ability” and experienced a “loss of ego

boundary” which caused him to engage in

sexual activities with underage males.

Nonetheless, Dr. Roy determined that

Petitioner did not meet the criteria for having

violent propensities and his sexual activities

with juveniles did not constitute violence.

According to Dr. Roy, Petitioner was able to

develop “observational capacity” and show

empathy for children who had been abused.

However, in attempting to “eliminate his

conflicts” and “find appropriate discharge,”

Petitioner acted out his abuse, repeating the

cycle and identifying with both victim and the

aggressor. Dr. Roy testified that Petitioner’s

emotional age when having sex with juvenile

males was 14–16.

DICKENS V. RYAN 65

Dr. Roy testified in support of various mitigating factors.

He asserted that Dickens: (a) had the potential for

rehabilitation; (b) possessed a “borderline character structure”

but not an antisocial personality disorder; (c) had no history

of violence; (d) was not a danger to others (except possibly

teenage boys); (e) had close family ties; and (f) was

considered “a valued and diligent employee and a high

achiever.” Dr. Roy “also testified that Petitioner’s traumatic

childhood was a mitigating circumstance, as was his failure

to receive needed psychological care.”

Dr. Roy noted that Dickens’s slow processing time on

some tests, history of head trauma, emotional confusion,

concentration problems, and headaches raised the possibility

that Dickens suffered from brain damage. Dr. Roy, however,

noted “that a CT Scan and EEG were administered and the

results were ‘clear’” and that some of the tests he had

administered “did not support a finding of organicity.”13

Nonetheless, Dr. Roy did not think Dickens was malingering.

Moreover, Dr. Roy testified that Dickens had lacked the

intent to kill the Bernsteins.14

Sentencing counsel also called Dickens’s older brother

who testified that Dickens was frequently beaten by his older

brothers and was very remorseful for the victims of the

13

The district court further determined that sentencing counsel “did not

ignore or overlook evidence of possible brain damage,” because although

Dr. Roy noted that Dickens showed symptoms of neurological

impairment, “neurological testing did not establish an organic basis.”

14

Dr. Roy also testified in detail about Amaral, who was Dickens’s

partner in crime and actually shot the victims. He thought that Amaral

had a psychopathic personality and had controlled and manipulated

Dickens.

66 DICKENS V. RYAN

shooting. Counsel also called Michael O’Connor, a sheriff’s

sergeant from San Diego, who testified that when Dickens

was referred to the Juvenile Intervention Diversion Program

following a drug offense, he had worked well with the kids

for five years. In addition, counsel called a psychologist who

had examined Amaral and Dickens’s mother. Counsel also

called a family friend, who testified that Dickens “loved his

mother, enjoyed helping out adults and was always busy with

chores.”

In support of its conclusion that “counsel’s performance

at sentencing was neither deficient nor prejudicial,” the

district court found that sentencing counsel had been aware

of the significance of the sentencing stage of the trial. The

court found no factual basis for the allegation that counsel

had failed to provide Dr. Roy with sufficient information or

guidance. It also found no basis for questioning counsel’s

decision to retain and rely on Dr. Roy, “an experienced

clinical psychologist who had testified regarding mitigation

on previous occasions.” The court observed that even if “Dr.

Roy was not prepared to testify, or if his testimony was not

persuasive, it was not the fault of defense counsel.”

Having determined that sentencing counsel had performed

adequately, the district court buttressed its denial of relief by

also finding that Dickens could not meet the second prong of

Strickland – that is, he could not show prejudice. The district

court’s conclusion was based on the scope and depth of the

mitigating case presented, as well as distinguishing trial

counsel’s performance from the performances addressed in

DICKENS V. RYAN 67

recent decisions of the Supreme Court.15 The court

determined that unlike the situations presented in those cases,

Dickens’s “claim of prejudice arising from counsel’s

investigation into mitigating circumstances and handling of

Dr. Roy is not supported by the record.” The district court

opined: “[w]hether or not counsel should have provided Dr.

Roy with additional information or direction, given the

evidence that was presented in mitigation there was not a

reasonable probability of a different sentence if counsel had

taken a different approach to his mitigation case or more

thoroughly prepared Dr. Roy as a witness.” The court also

commented that Dickens “failed to identify a significant

disparity between the evidence that could have been

presented at sentencing and the evidence that counsel did

present.”

Finally, the district court observed that Dickens was not

prejudiced by counsel’s performance at sentencing because

“the same judge presided over both Petitioner’s trial and

15

The district court distinguished the cases of Rompilla v. Beard,

545 U.S. 374 (2005), Wiggins v. Smith, 539 U.S. 510 (2003), and Williams

v. Taylor, 529 U.S. 362 (2000), based on the amount of mitigating

evidence that counsel failed to present at sentencing. See Rompilla,

545 U.S. at 391–93 (counsel failed to present evidence of alcoholic and

violent parents, extreme poverty, isolation, and reduced cognitive

capabilities); Wiggins, 539 U.S. at 535 (counsel failed to present evidence

of abusive alcoholic mother, physical and sexual abuse in foster care, and

diminished mental capabilities); Williams, 529 U.S. at 395–96 (counsel

failed to present evidence of parents’ imprisonment for criminal neglect,

abusive foster home, reduced mental capabilities, and commendations

given to defendant for positive behavior). In all three cases, the Supreme

Court held that if the jury had access to this information during the trial,

there was a reasonable probability that a different sentence might have

resulted. See Rompilla, 545 U.S. at 392; Wiggins, 539 U.S. at 536;

Williams, 529 U.S. at 398.

68 DICKENS V. RYAN

sentencing and the litigation of his ineffective assistance

claims during the PCR proceedings.” The district court

suggested that the standard should be whether there is a

reasonable possibility that further mitigating evidence would

have changed the trial judge’s position.16 The district court

concluded the state trial judge “assessed Petitioner’s

ineffective assistance claim after presiding over trial and

sentencing, applied Strickland to reject Petitioner’s allegation

of prejudice, and noted that imposition of the death sentence

was not a close call.”

As noted, the district court’s conclusions are not binding

on us, but its description of the sentencing hearing and

defense counsel’s efforts are accurate. Dickens’s proffer of

contrary evidence does not rise to the low threshold of “some

merit.” Martinez, 132 S. Ct. at 1318. Dickens asserts that his

sentencing counsel had little experience with capital cases,

did not conduct “assessment interviews” of family and friends

to discover background information, and was not aware of

mitigation specialists. Dickens objects that rather than

conduct a complete mitigation investigation, sentencing

counsel handed documents over to Dr. Roy “and left the

entire presentation of the mitigation case in Dr. Roy’s hands.

Dickens further alleges that a box of general information was

missing from the boxes of information given to Dr. Roy and

that Dr. Roy had no experience presenting mitigating

evidence in capital trials.

16

The district court cited Smith v. Stewart, 140 F.3d 1263, 1270 (9th Cir.

1998) (“We are asked to imagine what the effect might have been upon a

sentencing judge, who was following the law, especially one who had

heard the testimony at trial. Mitigating evidence might well have one

effect on the sentencing judge, without having the same effect on a

different judicial officer.”)

DICKENS V. RYAN 69

Addressing his claimed FAS and brain damage, Dickens

now argues that even though Dr. Roy’s report noted that

Dickens’s mother drank alcohol three times a week while she

was pregnant with Dickens, counsel “failed to retain an expert

to discuss the effects that alcohol had on his client in utero.”

He also argues that Dr. Roy’s report indicated the possibility

of organic brain damage that led to the further testing by a Dr.

Weiss, but that Dr. Weiss was more concerned with a back

injury Dickens sustained after the crime occurred, and his

report failed to consider Dr. Roy’s concern with limited brain

functioning. Dickens claims that sentencing counsel “failed

to equip Dr. Weiss with the tools necessary to properly make

a determination regarding testing.”

These observations do not provide a sound basis for an

IAC claim. Dickens was tried and sentenced twenty years

ago in 1993. Counsel’s performance must be evaluated on

the basis of the standard of representation as it then existed.17

17

In Strickland, the Supreme Court stated:

Judicial scrutiny of counsel’s performance must be

highly deferential. It is all too tempting for a defendant

to second-guess counsel’s assistance after conviction or

adverse sentence, and it is all too easy for a court,

examining counsel’s defense after it has proved

unsuccessful, to conclude that a particular act or

omission of counsel was unreasonable. Cf. Engle v.

Isaac, 456 U.S. 107, 133–34 (1982). A fair assessment

of attorney performance requires that every effort be

made to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel’s challenged

conduct, and to evaluate the conduct from counsel’s

perspective at the time.

466 U.S. at 689.

70 DICKENS V. RYAN

See Strickland, 466 U.S. at 689. Moreover, as we recently

reiterated in Cox v. Ayers, 613 F.3d 883 (9th Cir. 2010),

“[t]he burden is on Petitioner to ‘identify the acts or

omissions of counsel that are alleged not to have been the

result of reasonable professional judgment.’” Id. at 893

(quoting Strickland, 466 U.S. at 690). Here, taking Dickens’s

allegations at face value, his “new” claim of IAC lacks merit.

He argues that counsel did not retain an expert to discuss the

effects that alcohol had on his client in utero, but there is little

to suggest that counsel should have been aware of this

possibility. At most, it is possible that Dr. Roy might have

been able to learn of this possibility, but there is nothing to

suggest that he actually knew of the possibility or deliberately

failed to inform counsel.18 Similarly, counsel reasonably

relied on his experts to assess the possibility of Dickens’s

brain damage. Again, it is possible, as Dickens now argues,

that his experts failed to properly test and diagnose his brain

18

In his 2002 declaration, Dr. Thomas Thompson, a psychologist

retained by Dickens, alleges that “[a]lcohol exposure in utero is and was

known to have a major teratogenic impact on the central nervous system

(brain) of the developing fetus in 1992. He then lists a number of

academic articles that discussed fetal alcohol syndrome that were available

in 1992. However, when addressing the specifics of this case, Dr.

Thompson writes:

The amount of alcohol Joan Dickens consumed during

her pregnancy with Greg constitutes an amount

sufficient to produce Fetal Alcohol Syndrome as

defined by the Institute of Medicine Report of 1996.

See Fetal Alcohol Syndrome: Diagnosis, Epidemology,

Prevention, and Treatment 74–79 (Kathleen Stratton,

Cynthia Howe, and Frederick Battablia eds., Institute of

Medicine, 1996).

This suggests that the test for FAS was not established or widely

disseminated until 1996, three years after Dickens was sentenced.

DICKENS V. RYAN 71

damage, but sentencing counsel can hardly be faulted for not

perceiving this.19

Furthermore, the alleged failure to detect two possible

mental concerns must be considered in the context of all the

psychological and mental mitigating factors that sentencing

counsel and Dr. Roy did develop. As noted, Dr. Roy

diagnosed Dickens “with major depression, severe; mixed

personality, with borderline narcissistic features; and

suspected mild traumatic brain injury.” Dr. Roy testified to

Dickens’s beating by his brothers, his sexual abuse as a child,

his history of head traumas, and even that his mother drank

when she was pregnant with Dickens. Considering the

totality of the evidence, the only reasonable conclusion is that

sentencing counsel performed adequately, at least insofar as

he failed to discover Dickens’s alleged organic brain damage

and FAS.

The totality of the evidence also compels the conclusion

that even if sentencing counsel’s performance somehow fell

below the mark, Dickens was not prejudiced. In sentencing

Dickens, the trial judge found at least two aggravating

factors. The court found no statutory mitigating factors, and

Dickens does not argue that his present claim of brain damage

and FAS would constitute a statutory mitigating factor. The

trial court noted that Dickens had urged a list of 31 non-

statutory mitigating circumstances. It agreed with a number

19

On appeal, Dickens has not offered any evidence that counters the

district court’s determination that he “failed to identify a significant

disparity between the evidence that could have been presented at

sentencing and the evidence that counsel did present.” Whatever Dr.

Roy’s shortcomings in failing to diagnose Dickens with organic brain

damage and FAS, there is nothing in the record to suggest that trial

counsel knew or should have known of these alleged failings.

72 DICKENS V. RYAN

of these. It found that Dickens “had a troubled childhood,

that his family was somewhat dysfunctional, that he has

always had a loving and caring mother and he now has a

supportive family.” The court further found that Dickens

exhibited “some sympathy or remorse,” but that his “capacity

to appreciate the wrongfulness of his conduct at the time of

planning and execution of these offenses or to conform his

conduct at that time to the requirements of law was not

significantly impaired.” It is extremely unlikely that

presenting further evidence concerning Dickens’s brain

damage or FAS would have resulted in a different sentence.20

In sum, in contrast to the factual records in cases where

we have found IAC based on trial counsel’s failure to

adequately investigate or present a defendant’s mental

condition,21 a review of Dickens’s sentencing hearing (as well

20

A report prepared by Dr. Thomas Thompson indicates that FAS may

retard appropriate adult developmental maturity, result in poor judgment

and decision making, and in Dickens “resulted in neuropsychological

deficits that impaired his ability to overcome difficulties associated with

a chaotic social-emotional learning environment present in the family

home.” This is not an assertion that Dickens was not capable of

appreciating the wrongfulness of his conduct. Moreover, in the context of

Dickens’s involvement with Amaral and the murder, further medical

explanations for Dickens’s behavior were not likely to have changed the

sentencing judge’s mind.

21

See, e.g., Silva v. Woodford, 279 F.3d 825, 864 (9th Cir. 2002)

(counsel’s performance deficient where counsel “conducted no

investigation whatsoever into Silva’s past and also failed to even

minimally assist in the preparation of possible mental defenses”); Bean v.

Calderon, 163 F.3d 1073, 1078 (9th Cir. 1998) (counsel “engaged in no

preparation” and “conducted no investigation of penalty-phase issues”);

Clabourne v. Lewis, 64 F.3d 1373, 1384 (9th Cir. 1995) (counsel “did not

call any witnesses, introduce any evidence of [defendant’s] history of

mental illness, or argue any mitigating circumstance besides [defendant’s]

DICKENS V. RYAN 73

as his state postconviction proceedings) shows that trial

counsel reasonably presented mitigating evidence concerning

Dickens’s mental condition. Furthermore, it is unlikely that

the state judge, who sentenced Dickens and presided over his

postconviction proceeding, would have been swayed by the

“new” evidence (developed well after his sentencing) that

Dickens might have suffered from organic brain damage and

FAS. Accordingly, even if I could conclude that Dickens was

procedurally eligible for the Martinez exception, and even if

I could conclude that he is asserting a “new” claim that

justifies him raising assertions for the first time in a federal

habeas petition, I would still affirm the denial of Dickens’s

habeas petition because this record compels a determination

that his sentencing counsel’s performance was not

inadequate.

For the reasons set forth in parts I and II of the majority

opinion’s discussion, Dickens’s Enmund/Tison claim is

properly rejected. However, Dickens’s request for relief

pursuant to the Supreme Court’s opinion in Martinez should

also be rejected because he is not eligible for relief under

Martinez, he has not proffered a “new” claim, and there is no

merit to his proffered claim. The district court’s denial of his

federal habeas petition should be affirmed. Accordingly, I

respectfully dissent from majority’s remand of this case to the

district court.

mental condition at the time of the offense”); Wallace v. Stewart, 184 F.3d

1112, 1114 (9th Cir. 1999) (counsel failed to discover and provide to their

mental health experts various test results and information about

defendant’s incredibly dysfunctional family background).

74 DICKENS V. RYAN

CHRISTEN, Circuit Judge, with whom Judges

PREGERSON, WARDLAW, BERZON, and MURGUIA

join, dissenting in Parts I and II, concurring in Part III:

The majority makes a persuasive case in support of an

uncontested issue: that the record supported the jury’s

decision to convict Gregory Dickens of robbery, conspiracy

to commit robbery, and felony murder. But the question we

must decide is whether the record and the law justify the

Arizona Supreme Court’s decision to affirm the imposition of

the death penalty. Because imposing the death penalty in this

case is an unreasonable application of clearly established law

as articulated by the United States Supreme Court in Enmund

v. Florida, 458 U.S. 782 (1982), and Tison v. Arizona,

481 U.S. 137 (1987), and because at least two unreasonable

findings of fact were critical to the Arizona court’s decision,

I respectfully dissent from the majority’s opinion.

Imposing the death penalty on Gregory Dickens, the

getaway driver in an armed robbery “who neither took life,

attempted to take life, nor intended to take life,” violates the

Eighth and Fourteenth Amendments and is an unreasonable

application of clearly established federal law. See Enmund,

458 U.S. at 787, 801. Dickens’s participation in his crime so

closely resembles the actions of Earl Enmund in Enmund v.

Florida, where the Supreme Court held that the death penalty

could not be constitutionally imposed, that it cannot be

meaningfully distinguished. Dickens’s culpability falls far

short of the narrow exception to Enmund, created by Tison v.

Arizona, for individuals whose conduct constitutes “major

participation” in the felony offense and reckless indifference

to human life. 481 U.S. at 158. The petition should be

granted.

DICKENS V. RYAN 75

I. Unreasonable Application of Enmund/Tison

A. Major Participation

In Enmund v. Florida, the Supreme Court held that the

death penalty was unconstitutional as applied to a petitioner

convicted of felony murder under facts strikingly similar to

Dickens’s case. 458 U.S. at 788–801. Earl Enmund was a

getaway driver in an armed robbery. Id. at 788. While he

was waiting in a car nearby, his accomplices killed two

robbery victims at the back door of their home. Id. at 784,

788.

In its review of the Florida court’s death eligibility

determination, the Court made clear that it had “no doubt that

robbery is a serious crime deserving serious punishment,” but

it observed that robbery “is not, however, a crime ‘so

grievous an affront to humanity that the only adequate

response may be the penalty of death.’” Id. at 797 (citing

Gregg v. Georgia, 428 U.S. 153, 184 (1976)). The Court

further prefaced its opinion with the observation that the

question before it was not whether the death penalty is a

disproportionate punishment for murder generally, “but rather

the validity of capital punishment for Enmund’s own

conduct.” Id. at 798. The Court stressed that the focus of

inquiry must be on Enmund’s culpability rather than the

culpability of the accomplices who committed the actual

murder, “for we insist on ‘individualized consideration as a

constitutional requirement in imposing the death sentence.’”

Id. (quoting Lockett v. Ohio, 438 U.S. 586, 605 (1978)). The

Supreme Court has been consistent in instructing that death

sentences for accomplices who do not kill or intend that a

killing take place are reserved for offenders who manifest the

highest levels of culpability. See, e.g., Tison, 481 U.S. at 157

76 DICKENS V. RYAN

(identifying offenders who rank among “the most culpable

and dangerous of murderers”); Kennedy v. Louisiana,

554 U.S. 407, 420 (2008) (stating that capital punishment

must be limited to offenders with “extreme culpability”

(internal quotation omitted)).

Enmund was by no means an innocent bystander; his

involvement was that of an accomplice to a planned, armed

robbery. Enmund, 458 U.S. at 797. The Supreme Court

cabined its opinion to an evaluation of the appropriateness of

the death penalty in a situation where a defendant was not one

of the triggermen, but was a constructive aider and abettor

waiting to help his robber accomplices escape. Id. at 786 n.2,

788. Apart from his status as a getaway driver, the Court did

not need to reach many of the facts in Enmund because the

Florida Supreme Court did not rely on them. But it is clear

that Enmund was a part of the planned criminal enterprise —

he was, after all, the getaway driver waiting to help his

accomplices escape at the time the murders took place.

Indeed, in order to be convicted of aiding and abetting under

Florida law at the time, Enmund had to be found to be

constructively present, “pursuant to a previous

understanding,” and situated so as to abet or encourage the

actual perpetrator in committing the felony or in escaping

after its commission. Enmund v. State, 399 So.2d 1362, 1370

(Fla. 1981), rev’d, 458 U.S. 782 (1982).

Ultimately, the Court reasoned that because Enmund “did

not kill or intend to kill,” the imposition of the death penalty

was impermissible. 458 U.S. at 798, 801. In reaching this

decision, the Court observed that at the time of its opinion it

was “not aware of a single person convicted of felony murder

over the past quarter century who did not kill or attempt to

DICKENS V. RYAN 77

kill, and did not intend the death of the victim, who has been

executed.” Id. at 796.

Dickens’s participation in the robbery that resulted in the

murders of Laura and Bryan Bernstein is strikingly similar.

If there is such a thing as a generic description for a getaway

driver, Dickens’s involvement fits the bill: he helped plan the

robberies in advance, he either “furnished Amaral with the

weapon used in the murders or knew Amaral had the weapon

with him for the robberies; [he] drove Amaral to the scene,

waited while Amaral committed the robberies, picked up

Amaral after the crime, witnessed the destruction of evidence,

and failed to report the crimes.” State v. Dickens, 926 P.2d

468, 490 (Ariz. 1996). The death penalty cannot be

constitutionally applied in Dickens’s case because, as in

Enmund, Dickens was a getaway driver for a planned

robbery, he “did not commit the homicide, was not present

when the killing took place, and did not participate in a plot

or scheme to murder.” Enmund, 458 U.S. at 795. Dickens

was removed from the immediate scene of the murder, just as

Enmund was. See id. at 786.

A writ of habeas corpus is appropriate if the adjudication

of a claim “resulted in a decision that . . . involved an

unreasonable application of . . . clearly established Federal

law, as determined by the Supreme Court of the United

States.” 28 U.S.C. § 2254(d)(1). “[A] state-court decision

. . . involves an unreasonable application of [Supreme Court]

precedent if the state court either unreasonably extends a

legal principle from our precedent to a new context where it

should not apply or unreasonably refuses to extend that

principle to a new context where it should apply.” Williams

v. Taylor, 529 U.S. 362, 407 (2000) (emphasis added). The

Arizona Supreme Court’s decision to affirm the death penalty

78 DICKENS V. RYAN

in Dickens’s case contravenes clearly established law set out

in Enmund.

The imposition of the death penalty in this case cannot be

justified under the narrow exception to the Enmund rule

established in Tison v. Arizona. 481 U.S. at 158. On the

contrary, Tison’s sharply contrasting facts only underscore

that the death penalty should not be imposed here. The

exception established in Tison permits the imposition of the

death penalty for petitioners who neither intended to kill their

victims nor inflicted the fatal wounds, but it is only available

where there has been a finding that a petitioner’s “degree of

participation in the crimes was major rather than minor, and

the record would support a finding of the culpable mental

state of reckless indifference to human life.” Id. at 151.

It cannot be credibly argued that Dickens’s culpability

approaches that of the Tison brothers, who helped their father

— a convicted murderer — and their father’s cellmate —

another convicted murderer — escape from prison. Murder

was not just a hypothetical result of the Tison brothers’ plan;

they knew their father had murdered a prison guard during a

previous prison escape. Id. Armed with an ice chest full of

guns, the Tison brothers were major participants in a crime

spree that progressed from a jailbreak to robbery, kidnaping,

and the murder of four members of an innocent family. Id. at

139–42. The Supreme Court concluded that the Tison

brothers’ participation would “clearly support a finding that

they both subjectively appreciated that their acts were likely

to result in the taking of innocent life.” Id. at 152 (emphasis

added).

The Tison brothers’ active participation continued after

they helped the two murderers escape from prison. When the

DICKENS V. RYAN 79

getaway car they were using had a flat tire and they needed a

different vehicle, id. at 140, 152, one of the Tison brothers

“performed the crucial role of flagging down a passing car

occupied by an innocent family whose fate was then entrusted

to the known killers he had previously armed.” Id. at 151.

The brothers robbed the family, participated in driving the

family into the desert, and guarded the victims at gunpoint.

Id. at 140, 151. They knew that their father was “thinking

about” killing the family, but there is no hint that the brothers

made any attempt to intervene. See id. Instead, the record

showed that the brothers were standing close by when they

“saw [their father’s cell mate] and their father brutally murder

their four captives with repeated blasts from their shotguns.”

Id. at 140–41. One brother “later said that during the escape

he would have been willing personally to kill in a ‘very close

life or death situation’ and that he recognized that after the

escape there was a possibility of killings.” Id. at 144.

Regarding the Tison brothers’ degree of participation, the

Court wrote: “Far from merely sitting in a car away from the

actual scene of the murders acting as the getaway driver to a

robbery, each petitioner was actively involved in every

element of the kidnaping-robbery and was physically present

during the entire sequence of criminal activity culminating in

the murder of the Lyons family and the subsequent flight.”

Id. at 158.

Dickens, by contrast, was “sitting in a car away from the

actual scene of the murders acting as the getaway driver to a

robbery.” Id. The robbery took place at night, in a rest area

on the opposite side of a divided highway from where

Dickens waited in a getaway car. Dickens, 926 P.2d at

474–75. Though the majority paints a picture in which

Dickens watched “each part” of the murders, the record only

80 DICKENS V. RYAN

shows that, from where he waited on the far side of the

highway, Dickens could see a flicker of light as Amaral and

the victims passed in front of the headlights on the

Bernsteins’ car.

B. Reckless Indifference

Under the exception articulated in Tison, even major

participation in a felony offense is insufficient unless it is

combined with a finding of “reckless indifference to human

life.”1 481 U.S. at 158. This requirement presents an

independent constitutional barrier to imposing the death

penalty in Dickens’s case because support for the Arizona

court’s finding of reckless indifference to human life is

considerably weaker here than it was in Tison.

Tison recognized that the common law and modern

criminal codes classify behavior that constitutes “reckless

indifference to human life” with intentional murder. Id. at

157. Today, the Model Penal Code continues to observe this

important classification. MODEL PENAL CODE § 210.2(1).

Tison does nothing to undermine the long-standing

reservation of the death penalty for only the most serious

offenders. Under Tison, it is the reckless disregard for human

life implicit in “knowingly engaging in criminal activities

known to carry a grave risk of death” that represents the

highly culpable mental state that may be considered in death

1

Notably, though the Tison brothers provided an “arsenal of lethal

weapons” to two convicted murders, were “prepared to kill in furtherance

of the prison break,” and had heard their father say he was “thinking

about” killing an innocent family they had helped rob and kidnap, the

United States Supreme Court did not make a finding of reckless

indifference to human life. Tison, 481 U.S. at 151. Instead, the Court

remanded the question to the Arizona court to make that determination.

DICKENS V. RYAN 81

eligibility determinations. 481 U.S. at 157–58 (emphasis

added).

In its analysis of the reckless indifference part of the

Tison exception, the Arizona Supreme Court adopted the trial

court’s findings regarding Dickens’s major participation,

discussed above.2 Dickens, 926 P.2d at 490. The Arizona

court also considered three other factors: “that Defendant [1]

had considerable experience with the justice system through

his other felony convictions, [2] was aware that Amaral had

a violent and explosive temper, and [3] failed to render aid

knowing that one victim might not be dead.” Id. None of

these factors warrants the imposition of the death penalty in

this case.

First, the Arizona court referred to Dickens’s

“considerable experience with the justice system through his

other felony convictions” when it decided that Dickens acted

with reckless indifference to human life. Id. But Dickens’s

prior convictions were for forgery and lewd and lascivious

acts with a minor; deplorable crimes, but not crimes that

demonstrate a reckless indifference to human life.

The Arizona Supreme Court also considered that Dickens

knew Amaral had a violent and explosive temper. The

majority also cites this factor, arguing that Dickens “could

have foreseen that lethal force might be used,” and suggesting

that this is a marked difference between Dickens’s case and

Enmund. Maj. Op. at 22, 25. But by relying on the

foreseeability of this robbery going awry, the Arizona court

2

The Tison court noted that a finding of reckless indifference might be

supported by the same facts that support a finding of major participation.

481 U.S. at 158 n.12.

82 DICKENS V. RYAN

and the majority stray from the boundaries imposed by the

Supreme Court. If the “reckless indifference” part of the

Tison test could be satisfied merely by showing that it was

foreseeable an armed robbery could turn deadly, the Tison

exception would swallow the Enmund rule. As the Supreme

Court expressly acknowledged in Tison:

[p]articipants in violent felonies like armed

robberies can frequently ‘anticipat[e] that

lethal force . . . might be used . . . in

accomplishing the underlying felony.’

Enmund himself may well have so

anticipated. Indeed, the possibility of

bloodshed is inherent in the commission of

any violent felony and this possibility is

generally foreseeable and foreseen . . . .”

481 U.S. at 151 (internal citation omitted).

In Tison, the Supreme Court rejected Arizona’s less

rigorous standard that permitted application of the death

penalty for murder accomplices who could “anticipate[] that

lethal force would or might be used or that life would or

might be taken in accomplishing the underlying felony.” Id.

at 150–51. Because virtually any armed robbery carries the

risk that lethal consequences could result, the majority errs by

treating forseeability as a proxy for the more demanding

“reckless indifference” standard required by the Court. Id.

Finally, the Arizona court concluded that the reckless

indifference part of the Tison exception was satisfied because

Dickens “failed to render aid knowing that one victim might

not be dead.” 926 P.2d at 490. The record simply does not

support this finding of fact. At best, Amaral initially gave

equivocal testimony at trial regarding whether Dickens drove

DICKENS V. RYAN 83

through the rest area after Amaral committed the murders, but

he corrected his own testimony and clarified that he could not

recall whether this occurred.3 Even after prompting, Amaral

testified, “I still don’t remember him coming in as I’m going

out. There was not enough time span where he left the other

side to get across when I was running.” Transcript of Record

at 199, State v. Dickens, (Ariz. Super. Ct. 1993) (No. 18454).

The only other witness, Dickens himself, flatly denied that he

drove into the rest area. Id. at 162. Because the Arizona

Supreme Court, and the majority, place significant emphasis

on speculation that Dickens knew one of the victims might

have survived, it is important to recognize that the jury did

not hear conflicting testimony on this point. The finding that

Dickens failed to render aid to a surviving victim was not the

result of the jury hearing two versions of events and simply

choosing to believe one witness instead of the other. To be

sure, Amaral was a shockingly inconsistent witness — even

debuting an entirely new account of the events for the first

time at trial that involved Dickens actually giving him

directions via never-previously-mentioned walkie-talkies.4

But there is no support for the Arizona court’s unreasonable

3

During trial Amaral testified: “I do believe from a conversation we had

later on, he did say he was going through the rest stop to make sure

nobody was moving or everything was taken care of.” Transcript of

Record at 16, State v. Dickens, (Ariz. Super. Ct. 1993) (No. 18454). But

on cross examination Amaral clarified that he could not remember

whether Dickens drove through the rest stop: “The only thing I can

remember is he came and picked me up, I don’t know if he was leaving

the interstate as far as leaving the rest stop or coming into the lane going

out of the rest stop.” Id. at 88.

4

Amaral agreed to testify against Dickens to avoid receiving the death

penalty himself, and he gave several pre-trial statements. Dickens,

926 P.2d at 478.

84 DICKENS V. RYAN

finding that Dickens drove through the rest area and failed to

render aid to a surviving victim.

The majority recognizes, as it must, that Amaral’s

“walkie-talkie scenario” cannot reasonably be relied upon.

Maj. Op. at 8 n.4. Amaral had made no mention of the

“walkie-talkie scenario” in any of his pre-trial statements and

no physical evidence supported this theory. Conveniently,

Amaral’s new version of the robbery involved the claim that

Dickens and Amaral were using walkie-talkies and that

Dickens directed Amaral to leave “no witnesses.” But in his

argument before the Arizona Supreme Court, even the

Arizona Assistant Attorney General conceded that neither the

jury nor the trial court believed Amaral’s walkie-talkie story.5

He argued that the Arizona Supreme Court “shouldn’t

believe[] the walkie-talkie testimony” either. The Assistant

Attorney General surmised, “maybe [Amaral] decide[d] to

add a little something extra to his testimony to try and make

it more damning to [Dickens].” Transcript of Oral Argument,

State v. Dickens, 926 P.2d 468 (Ariz. Jan. 18, 1996) (No. 93-

0543). The Assistant Attorney General added, “there is no

question here, the plan was to rob. The plan was not to kill.”

Id.

Disregarding the evidence in the record and the position

of the Arizona Assistant Attorney General, the “Facts and

Procedural History” section of the Arizona court’s opinion

5

There can be little doubt the jury did not buy the last minute flourish

Amaral added to his testimony; they acquitted Dickens of premeditated

murder and conspiracy to commit murder. The majority acknowledges as

much: “[T]he jury did not convict Dickens of premeditated murder or

conspiracy to commit murder, indicating it likely did not believe Amaral’s

testimony that Dickens ordered him to kill the Bernsteins over a two-way

radio.” Maj. Op. at 24 n.13.

DICKENS V. RYAN 85

includes that court’s independent factual finding that

“speaking through the walkie-talkie, Defendant then told

Amaral, ‘No witnesses.’” Dickens, 926 P.2d at 474. And the

section of the Arizona court’s opinion that specifically

considered the imposition of the death penalty builds on this

mistake, citing Dickens’s “fail[ure] to render aid knowing

that one victim might not be dead.” Id. at 490. The only way

Dickens would have known that Bryan Bernstein had

survived is if he had driven through the rest area, and there is

no competent evidence that this occurred.

A petition for writ of habeas corpus may be granted where

it is shown that the decision was based on an unreasonable

determination of the facts in light of the evidence presented

in the state court proceedings. 28 U.S.C. § 2254(d)(2). Here,

evidence from the trial court proceedings does not support the

Arizona Supreme Court’s independent finding that Dickens

gave directions to Amaral over a walkie-talkie, or its finding

that Dickens failed to render aid.

In light of the evidence presented in the state court

proceeding, how is it that the majority reaches the conclusion

that Dickens, a getaway driver, fits into the narrow exception

carved out by Tison? What facts permit Dickens’s actions to

be deemed comparable to the extraordinarily more culpable

criminal conduct of the Tison brothers? The majority

answers these questions by relying on at least two critical,

unsupported, and unreasonable findings of fact. In other

words, the majority makes the same mistakes made by the

Arizona court.

First, the majority states: “Dickens drove through the rest

stop to, in his words, verify that ‘everything was taken care

of’ and pick up Amaral.” Maj. Op. at 19 (emphasis added).

86 DICKENS V. RYAN

But these were not Dickens’s words; they were Amaral’s

words, and, as already explained, Amaral corrected his own

testimony on cross examination by clarifying that, “The only

thing I can remember is he came and picked me up, I don’t

know if he was leaving the interstate as far as leaving the rest

stop or coming into the lane going out of the rest stop.”

Transcript of Record at 88, State v. Dickens, (Ariz. Super. Ct.

1993) (No. 18454). Without evidence that Dickens drove

through the rest area, the only hint of support for the finding

that Dickens “failed to render aid knowing that one of the

victims might not be dead” is the thoroughly discredited

walkie-talkie testimony that neither the trial court nor the jury

believed.

Second, likely because the Tison court considered the

Tison brothers’ proximity to the murders in that case, the

majority attempts to place Dickens in close proximity to the

murders. The majority asserts that Dickens “watched from

his truck” and could see “each part of the Bernsteins’ murders

as they unfolded.” Maj. Op. at 7, 19. But the record

contradicts the notion that Dickens could see the murders.

The Arizona Supreme Court’s opinion certainly does not

support the majority’s assertion; it only notes that it was

9:17 p.m., that Dickens was waiting in the eastbound rest

area, that he saw the Bernsteins’ car drive into the westbound

rest area across the highway, and that Dickens later “saw a

muzzle flash and heard two shots.” 926 P.2d at 474–75. The

trial court record actually refutes the majority’s finding.

Officer Johnson (the first officer on the scene), speaking from

his previous experience being at the subject rest areas at

night, testified that the rest areas have no lighting, and that,

looking from one rest area to the other, at best only

silhouettes can be seen. Dickens testified consistently. He

said he watched Amaral “disappear[] out of my sight just

DICKENS V. RYAN 87

about the side of the freeway” and that he could only see

“shadows” or “flashes of light as if someone passed in front

of the headlights.” The evidence does not support the

majority’s statement that Dickens watched “each part of the

Bernsteins’ murders as they unfolded.” Maj. Op. at 19.

What the record does support is that Dickens did what

getaway drivers do. Like Enmund, he planned or acquiesced

in plans to commit an armed robbery, drove a dangerous

accomplice to the crime scene, waited for the robbery to

occur, drove his accomplice away from the crime scene,

witnessed or directed the destruction of evidence, and failed

to report the crimes.6

The Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA) applies to this case and the majority correctly

notes that the threshold to obtain relief is heightened due to

its application. But in my view relief should be granted in

this case because the Arizona Supreme Court’s decision

involved an unreasonable application of clearly established

federal law as determined by the United States Supreme

Court, and because it was based on an unreasonable

determination of the facts in light of the record before the

state court. Harrington v. Richter, ___ U.S. ___, 131 S. Ct.

770, 785 (2011) (quoting 28 U.S.C. § 2254). The majority

6

In a further attempt to distinguish Dickens’s case from Enmund, the

majority argues that Dickens participated in the destruction of evidence

and either provided a weapon to Amaral, or knew that Amaral had one.

Maj. Op. at 16. The Supreme Court did not reach these facts, but the

record does show that Enmund and Dickens have these actions in

common. There was testimony in Enmund’s case that he directed his

common-law wife to get rid of the guns used in the murders, see 399 So.

2d at 1366, and Enmund likely supplied at least one of the weapons used

in the crime. Id.

88 DICKENS V. RYAN

argues that relief cannot be granted because the facts of

Dickens’s case fall somewhere between the facts in Edmund

and the facts in Tison. That will always be true when a

decision runs afoul of the rule that a state court unreasonably

applies clearly established federal law when it fails to extend

a clearly established legal principle to a new context in a way

that is objectively unreasonable. Williams, 529 U.S. at 407.

Read together, Enmund and Tison reaffirm that the death

penalty is to be reserved for the very most culpable offenders.

Where the facts do not show that a defendant killed,

attempted to kill, or intended to kill, the Constitution requires

a showing of major participation in criminal activities known

to carry a grave risk of death and reckless disregard for

human life. Allowing the death penalty to be imposed on a

getaway driver in a planned armed robbery — even a getaway

driver who later witnessed the destruction of evidence — is

an unreasonable application of clearly established federal law.

The Arizona Supreme Court’s decision also rests upon

objectively unreasonable findings of fact. The trial court’s

special verdict makes no mention of walkie-talkies or the “no

witnesses” comment. The finding in the Arizona Supreme

Court’s death eligibility determination — that Dickens “failed

to render aid knowing that one victim might not be dead” —

was made by the Arizona trial court, but it was utterly

unsupported. As explained, there was no competent evidence

that Dickens drove through the rest area, and, therefore, no

bas

This text is long and has been trimmed here. Open the source document for the complete record.