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-

CHARLES RYAN, NVW

Respondent-Appellee.

 OPINION

Appeal from the United States District Court

for the District of Arizona

Neil V. Wake, District Judge, Presiding

Argued and Submitted

February 10, 2011—Pasadena, California

Filed August 3, 2012

Before: Stephen Reinhardt, Johnnie B. Rawlinson, and

N. Randy Smith, Circuit Judges.

Opinion by Judge N.R. Smith;

Dissent by Judge Reinhardt

8599

DICKENS v. RYAN 8603

COUNSEL

Jon M. Sands, Federal Public Defender, Phoenix, Arizona, for

petitioner-appellant Gregory Dickens.

John Pressley Todd, Assistant Attorney General, Capital Liti-

gation Section, Phoenix, Arizona, for respondent-appellee

Dora B. Schriro.

OPINION

N.R. SMITH, Circuit Judge:

Gregory Scott Dickens, an Arizona state prisoner, appeals

the district court’s denial of his 28 U.S.C. § 2254 habeas cor-

pus petition. Dickens was sentenced to death on each of two

counts of felony murder for the 1991 killings of Bryan and

Laura Bernstein. In this petition, Dickens challenges his capi-

tal sentences, arguing that (1) the Arizona Supreme Court’s

application of Enmund v. Florida, 458 U.S. 782 (1982), and

Tison v. Arizona, 481 U.S. 137 (1987), was unreasonable; (2)

8604 DICKENS v. RYAN

the Arizona Supreme Court based its decision on an unreason-

able determination of the facts; and (3) his trial counsel ren-

dered ineffective assistance by failing to investigate and

present certain mitigating evidence during sentencing.1

Regarding Dickens’s first two arguments, we must affirm,

because (1) the Arizona Supreme Court’s application of

Enmund and Tison to the facts of this case was not objectively

unreasonable and (2) the Arizona Supreme Court did not base

its decision on a clearly erroneous determination of the facts.

As for Dickens’s third argument, although we agree that

Dickens defaulted on his ineffective assistance of counsel

claim by failing to fairly present the claim to the Arizona

courts, we vacate and remand to allow the district court to

reassess whether Dickens has established cause and prejudice

for the procedural default under Martinez v. Ryan, 132 S. Ct.

1309 (2012).

Background2

In January 1990, while working as a counselor at the Oak

Grove Institute in Temecula, California, Dickens became

acquainted with then fourteen-year-old Travis Amaral. Ama-

ral lived at Oak Grove, which is a placement center for violent

juveniles. Dickens worked with Amaral and learned that he

was a “high risk” patient with a “violent and explosive tem-

per.” Dickens also learned that Amaral battered a nurse and

frequently bragged about carrying guns and being involved in

several murders. Dickens quit working at Oak Grove in

March 1990 but maintained his friendship with Amaral.

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 rebut-

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

DICKENS v. RYAN 8605

In early September 1991, a few days after Dickens moved

to Yuma, Arizona, Amaral contacted Dickens and explained

that he was running away from home. Hearing this news,

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

Amaral arrived in Yuma on September 8, 1991. He spent the

next several days with Dickens near the Colorado River.

While recreating on the river, Dickens showed Amaral a .38-

caliber revolver he had recently acquired. At some point dur-

ing their time together, Amaral attempted to intimidate Dick-

ens by pointing the loaded revolver at Dickens’s head.

Dickens paid for Amaral’s food and transportation during

his visit to Yuma. However, after a couple of days, Dickens

was running low on cash. Therefore, on September 10, 1991,

while eating dinner at a Hardee’s restaurant in Yuma, Dickens

and Amaral discussed “ways to get more money.” Dickens

suggested they plan a robbery. They flipped a coin to decide

who would conduct the first robbery, and Amaral won. Dick-

ens gave Amaral a choice of several locations to commit the

robbery, including a convenience store and a highway rest

stop. Amaral chose the rest stop, because it was “out of the

way,” less busy, and “easier.”

After leaving the restaurant, Dickens and Amaral drove to

a rest area on eastbound Interstate 8, east of Yuma. Dickens

removed his .38-caliber revolver from the glove compartment

and placed it on the seat of the vehicle. While waiting for the

appropriate circumstances to conduct the robbery, an argu-

ment ensued between the two. During the argument, Amaral

again pointed the revolver at Dickens’s head to intimidate

him. After waiting and watching at the rest area for approxi-

mately three hours, Dickens and Amaral saw Bryan and Laura

Bernstein3 drive into the parallel westbound rest area across

3

Bryan and Laura were both 22 years old. Married for three years and

graduates of Cornell University, they were traveling through Arizona en

route to UCLA where they both received fellowships to undertake gradu-

ate work.

8606 DICKENS v. RYAN

the interstate. Dickens nodded his head and either handed

Amaral the handgun or watched him remove it from the seat.

They agreed that, after Amaral robbed the Bernsteins, Amaral

would run down the westbound ramp of the rest area where

Dickens would pick him up.

Sitting in his truck on the opposite side of the highway,

Dickens watched Amaral as he crossed the interstate and

approached the Bernsteins. When he reached the Bernsteins,

Amaral asked if they had the time. Laura responded, “9:17

[p.m.].” Amaral then pointed the gun at Bryan and demanded

his wallet, which Bryan surrendered. Amaral then asked

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

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, then

shot Laura point blank 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 re-

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

head.

After seeing that Amaral had robbed and shot the Bern-

steins, Dickens drove across the median and through the rest

area. No evidence suggests Dickens stopped to aid the Bern-

steins, called for emergency medical assistance, or otherwise

notified the authorities. Dickens picked Amaral up on the

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

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

Dickens. After searching the wallet and returning it to Ama-

ral, Dickens explained 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 wal-

let. 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.

DICKENS v. RYAN 8607

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, suffering from a gun-

shot wound to the head, was semiconscious, thrashing around,

and moaning in pain. Bryan told the deputy that he had been

threatened with a gun, attacked, and thought he was 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. That evening, Dickens rented a room at a

Motel 6, where he and Amaral spent the night. Early the next

morning, Dickens and Amaral parted company. Dickens

drove to Carlsbad, California, and Amaral went back to his

mother’s house.

They met up again in March 1992. At that time, Amaral

moved in with Dickens for one to two weeks in a San Diego,

California apartment. Amaral’s mother, finding that Amaral

had left her home, reported Amaral as a runaway and gave

Dickens’s address to the 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.4 During an interview concerning the alleged

abuse, Amaral told officers that he and Dickens had been

involved in a double homicide in Yuma.

In April 1992, after further investigation, Dickens was

indicted for two counts of premeditated first-degree murder,

two counts of felony first-degree murder, one count of con-

spiracy to commit first-degree murder, one count of conspir-

acy to commit armed robbery, and two counts of armed

robbery. After a trial, he was acquitted of premeditated mur-

der and conspiracy to commit murder but convicted of the fel-

ony murders and armed robberies of Bryan and Laura

4

This information was not provided to the jury.

8608 DICKENS v. RYAN

Bernstein, as well as conspiracy to commit armed robbery.

Finding no mitigating factors sufficient to call for leniency,

the district court sentenced Dickens to death on the felony

murder counts.5 The court further ordered that, if the sen-

tences were ever reduced, the sentences would be served con-

secutively. The court also sentenced Dickens to fourteen

years’ imprisonment on the conspiracy and armed robbery

convictions, to be served consecutively to the death sentences.

Dickens applied for post-conviction relief from the trial

court, which the trial court denied. Dickens then appealed his

conviction and sentence to the Arizona Supreme Court. That

court affirmed, noting that overwhelming evidence supported

the conviction and capital sentences and emphasizing that

“this is not a case of lingering doubt.” 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,

which the district court denied. We review de novo the district

court’s order denying the petition. Estrada v. Scribner, 512

F.3d 1227, 1235 (9th Cir. 2008). Because the relevant state

court determination for a habeas petition is the last reasoned

state court decision, our review focuses on the Arizona

Supreme Court’s decision. See Delgadillo v. Woodford, 527

F.3d 919, 925 (9th Cir. 2008) (citing Ylst v. Nunnemaker, 501

U.S. 797, 804-06 (1991)).

5

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 8609

I. The Arizona Supreme Court’s application of

Enmund/Tison to the facts of this case was not objec-

tively unreasonable

Dickens argues the Arizona Supreme Court’s application of

federal law regarding capital sentences for felony-murder

defendants was unreasonable and therefore warrants habeas

relief. He specifically contends that his contribution to the

murders of Bryan and Laura Bernstein was insufficient to

warrant the death penalty. To obtain relief under the Antiter-

rorism and Effective Death Penalty Act of 1996 (“AEDPA”),

Pub. L. No. 104-132, 110 Stat. 1214, Dickens must show that

the Arizona Supreme Court’s decision (1) was “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.” Har-

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

(quoting 28 U.S.C. § 2254) (internal quotation marks omit-

ted).

“A decision is ‘contrary to’ federal law when the state court

applies a rule of law different from that set forth in the hold-

ings of Supreme Court precedent or when the state court

makes a contrary determination on ‘materially indistinguish-

able’ facts.” Earp v. Ornoski, 431 F.3d 1158, 1182 (9th Cir.

2005) (quoting Williams v. Taylor, 529 U.S. 362, 405-06

(2000)). “[T]o determine whether a state court failed to apply

‘clearly established Federal law’ . . . we must distinguish

between situations where a legal principle established by a

Supreme Court decision clearly extends to a new factual con-

text . . . and where it does not . . . .” Moses v. Payne, 555 F.3d

742, 753 (9th Cir. 2009). When Supreme Court “cases give no

clear answer to the question presented, . . . it cannot be said

that the state court unreasonably applied clearly established

Federal law.” Wright v. Van Patten, 552 U.S. 120, 126 (2008)

(internal quotation marks and citations omitted). “[A] federal

habeas court may not issue the writ simply because that court

8610 DICKENS v. RYAN

concludes in its independent judgment that the relevant state-

court decision applied clearly established federal law errone-

ously or incorrectly.” Lockyer v. Andrade, 538 U.S. 63, 75-76

(2003) (internal quotation marks and citation omitted).

“Rather, that application must be objectively unreasonable.”

Id. at 76.

[1] The applicable rules in this case come from Enmund,

458 U.S. 782, and Tison, 481 U.S. 137, which were both

decided prior to Dickens’s 1993 conviction. In Enmund, the

Supreme Court reversed the death sentence of a defendant

convicted under Florida’s felony-murder rule. 458 U.S. at

798. Enmund drove the getaway car in an armed robbery of

a dwelling. His accomplices murdered an elderly couple who

resisted the robbery. Id. at 784-86. The Court determined that

Enmund “did not commit the homicide, was not present when

the killing took place, and did not participate in a plot or

scheme to murder.” Id. at 795. Therefore, the Court concluded

that putting Enmund to death, “to avenge two killings that he

did not commit and had no intention of committing or caus-

ing,” would not achieve the deterrent or retributive goals of

the death penalty and was therefore unconstitutional. Id. at

800-01.6

[2] Tison created an exception to Enmund for felony-

murder defendants whose “[1] major participation in the fel-

ony committed, [2] combined with reckless indifference to

human life, is sufficient to satisfy the Enmund culpability

requirement.” 481 U.S. at 158. The defendants in Tison

6

The Enmund Court, “citing the weight of legislative and community

opinion, found a broad societal consensus, with which it agreed, that the

death penalty was disproportional to the crime of robbery-felony murder

‘in these circumstances.’ ” Tison, 481 U.S. at 147 (emphasis added) (quot-

ing Enmund, 458 U.S. at 788). However, the Court acknowledged that

“[i]t would be very different if the likelihood of a killing in the course of

a robbery were so substantial that one should share the blame for the kill-

ing if he somehow participated in the felony.’ ” Enmund, 458 U.S. at 799

(emphasis added).

DICKENS v. RYAN 8611

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. Id.

at 139-41. The Court distinguished Enmund, explaining that

the defendant in that case “did not actively participate in the

events leading to death (by, for example, as in the present

case, helping abduct the victims) and was not present at the

murder site.” Id. at 145. By contrast, the Tison defendants

were major participants in the felony committed because: (1)

they “actively participated in the events leading to the death

by, inter alia, providing the murder weapons and helping

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

[and] did nothing to interfere with the murders”; (3) they

“ma[de] no effort to assist the victims before, during, or after

the shooting”; (4) “after the murders [they] continued on the

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

force” during the commission of their crimes. Id. at 145,

151-52. Therefore, the Tison Court concluded the defendants’

participation was sufficient to warrant capital punishment. Id.

at 158.7

A. Major participation

[3] The Arizona Supreme Court determined that Dickens

was a major participant in the murder of Bryan and Laura

Bernstein, because: (1) “[t]he robberies were premeditated,

planned, and agreed on by [Dickens] and Amaral”; (2)

“[Dickens] furnished Amaral with the weapon used in the

murders or knew Amaral had the weapon with him for the

robberies”; (3) “[Dickens] drove Amaral to the scene; (4)

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

(5) “[Dickens] picked up Amaral after the crime”; and (5)

7

The Court remanded for further proceedings to determine whether the

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

at 158.

8612 DICKENS v. RYAN

“[Dickens] witnessed the destruction of evidence, and failed

to report the crimes.” Dickens, 926 P.2d at 490. The Arizona

court’s application of federal law was not objectively unrea-

sonable, because Dickens’s conduct nearly matches that of the

Tison defendants. Dickens was actively involved in every

aspect of the deadly crime—planning the robbery, staking out

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

handgun,8 watching the murders, aiding Amaral’s escape,

destroying evidence, and helping Amaral evade capture.

Dickens was clearly a major participant in the crime.

[4] Nonetheless, Dickens argues his conduct was more

akin to the defendant in Enmund than to the defendants in

Tison. Most notably, he argues that Enmund and Tison require

a defendant’s immediate physical presence at the murder

scene to qualify for the death penalty. 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 one of sev-

eral factors relevant to the “major participation” prong of the

Tison analysis. 481 U.S. at 158. In addition to their presence

at the murder scene, the defendants in Tison were “actively

involved in every element” of the crime because, among other

things, they (1) helped plan the underlying crimes (kidnaping

and robbery), (2) provided the murder weapons, (3) made no

effort to assist the victims after the shooting, (4) helped the

perpetrators flee, and (5) continued in the criminal venture

after the murders were committed. Id. at 145, 151-52, 158.

The Tison Court never stated that one factor was more impor-

tant than another factor; it simply concluded that the defen-

8

The dissent argues that the Arizona Supreme Court did not determine

that Dickens armed Amaral. The Arizona Supreme Court noted only that

Dickens either furnished the weapon or knew Amaral had the weapon in

its “Death eligibility” discussion. Dickens, 926 P.2d at 490. However, in

a different section under the same “Sentencing Issues” section, the Ari-

zona Supreme Court stated that Dickens “was admittedly intimately famil-

iar with Amaral’s violent temper and impulsiveness, yet he provided

Amaral with a gun . . . .” Id. at 492.

DICKENS v. RYAN 8613

dants’ actions collectively demonstrate a “high level of

participation . . . [that] implicates them in the resulting

deaths.” Id. at 158.

By sharp contrast, “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

. . . .” Enmund, 458 U.S. at 786. There was no evidence that

Enmund provided the murder weapons, knew of the shooters’

violent propensities, planned the underlying crime, or contin-

ued to assist the perpetrators after they murdered their vic-

tims. His only participation was that of getaway driver. Id. at

786 n.2.

Here, the facts support the Arizona Supreme Court’s deter-

mination that Dickens’s participation was similar to that of

the defendants in Tison, rather than the defendant in Enmund.

“Far from merely sitting in a car away from the actual scene

of the murders,” Tison, 481 U.S. at 158, Dickens planned the

underlying armed robbery, provided the murder weapon or

knew Amaral had the weapon, watched Amaral shoot the vic-

tims, made no effort to assist the victims after the shooting,

helped Amaral flee the scene, assisted in the destruction of

evidence, continued in the criminal venture after the murders

were committed, and failed to report the murders to the

authorities. These facts, taken together, demonstrate a “high

level of participation . . . [that] implicates [Dickens] in the

resulting deaths.” Tison, 481 U.S. at 158. Dickens was no

doubt a “major participant.”

Additionally, even if Tison and Enmund could be read to

incorporate a mandatory “presence” requirement, it seems that

the Arizona Supreme Court suggested that Dickens met that

requirement. The Supreme Court has never defined the word

“presence” as it pertains to the major participation in a capital

crime. The Arizona Supreme Court had as its guide only the

two contrasting examples of presence in Enmund and Tison.

8614 DICKENS v. RYAN

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 the defendant

“was not present when the killing took place.” 458 U.S. at

795. In Tison, where the defendants stood by as four people

were gunned down, the Court determined the defendants were

sufficiently “present” at the murder site. 481 U.S. at 145. It

is not clear how close the Tison defendants stood to the vic-

tims when they were murdered, but we can fairly assume they

were close enough to watch the crime as it happened.9

Here, Dickens testified at trial that he watched each part of

the Bernsteins’ murders as they unfolded. After planning the

armed robbery, staking out the rest area for several hours in

search of potential victims, and selecting the Bernsteins as

they parked on the opposite side of the highway, Dickens (1)

watched Amaral leave the truck with a loaded .38-caliber

handgun, knowing Amaral was going to rob the Bernsteins at

gunpoint; (2) watched Amaral walk across the highway; (3)

observed Amaral moving the Bernsteins around the front of

their car in the path of the illuminated headlamps; and (4) saw

flashes as Amaral shot the victims in the head. Dickens then

drove through the rest stop to pick Amaral up, and (to use his

words) verify “everything had been taken care of” (i.e., verify

the victims had been shot). Given the language of the

Supreme Court in Tison, Dickens was present at this murder.

In any event, because Supreme Court “cases give no clear

answer to the question” of mandatory or minimum presence

9

There was apparently some dispute as to the Tison defendants’ involve-

ment in and proximity to the murders: “Ricky claimed to have a somewhat

better view than Raymond did of the actual killing. Otherwise, the [Ari-

zona] 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 sufficiently “present” at the murder scene. Id. at

141, 144-45, 157 (emphasis added).

DICKENS v. RYAN 8615

at the murder scene, “it cannot be said that the state court

unreasonably applied clearly established Federal law.”

Wright, 552 U.S. at 126 (internal quotation marks, alterations,

and citations omitted). Therefore, the Arizona Supreme

Court’s determination that Dickens was a major participant in

the murders did not rest on an objectively unreasonable appli-

cation of Supreme Court precedent. Lockyer, 538 U.S. at 76.

B. Reckless indifference to human life

[5] 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 require-

ment 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 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.” Indeed it is

for this very reason that the common law and mod-

ern criminal codes alike have classified behavior

such as occurred in this case along with intentional

murders.

Id. at 157 (citations omitted). The Court held that “reckless

disregard for human life implicit in knowingly engaging in

criminal activities known to carry a grave risk of death repre-

sents a highly culpable mental state” sufficient to warrant cap-

ital punishment “when that conduct causes its natural, though

also not inevitable, lethal result.” Id. at 157-58 (emphasis

added). The Court further noted that a defendant’s major par-

8616 DICKENS v. RYAN

ticipation in a dangerous felony “often provide[s] significant

support” for a finding of reckless indifference. Id. at 158 n.12.

Applying Tison, the Arizona Supreme Court concluded that

Dickens acted with a reckless indifference to human life

because, (1) in addition to the factors demonstrating his major

contribution to the crimes, Dickens (2) armed Amaral with the

.38-caliber revolver, (3) knowing that “Amaral had a violent

and explosive temper,” and (4) “failed to render aid” to the

Bernsteins. Dickens, 926 P.2d at 490.10 Given these facts, the

Arizona Supreme Court’s conclusion that Dickens exhibited

a reckless indifference to human life was not objectively

unreasonable.

Dickens argues this conclusion was unreasonable, because

armed robbery is not a crime “known to carry a grave risk of

death.” However, Dickens failed to cite any 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

were known to carry a grave risk of death and caused their

“natural, though also not inevitable, lethal result.” Tison, 481

U.S. at 157.

[6] Like the armed robbery in Tison, this was no ordinary

heist. The facts support the Arizona Supreme Court’s determi-

nation 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 “vio-

10

As the Tison Court noted, although the “major participation” and

“reckless indifference to human life” requirements are stated separately,

“they often overlap.” 481 U.S. at 158 n.12. The Arizona Supreme Court

thus considered the factors demonstrating major participation as signifi-

cant support for a finding of reckless indifference to human life.

DICKENS v. RYAN 8617

lent and explosive temper.” Dickens, 926 P.2d at 490. He

knew that Amaral had beaten up a nurse at Oak Grove and

had a long history of carrying guns. Amaral twice attempted

to intimidate Dickens—once at the river and once immedi-

ately before the robbery—by pointing the loaded .38-caliber

revolver at Dickens’s head. Amaral also bragged about being

involved in other murders. Even with this knowledge, Dick-

ens proceeded with the robbery. He either furnished Amaral

with his .38-caliber revolver, or knew Amaral had the gun,

and directed Amaral 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 peti-

tioner convicted of capital murder as an accomplice because

he displayed reckless indifference to human life by driving

two armed co-conspirators from victim to victim to commit

armed robbery, which is a criminal activity “known to carry

a grave risk of death”).

Further, after watching the shootings, Dickens, like the

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

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

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

that the Tison brothers’ participation in the crime was any-

thing 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.

[7] In light of these facts, we cannot say that the Arizona

Supreme Court’s determination that Dickens exhibited a reck-

less indifference to human life rested on an objectively unrea-

sonable application of Enmund and Tison.

8618 DICKENS v. RYAN

II. The Arizona Supreme Court’s decision was not based

on an unreasonable determination of the facts in light

of the evidence presented at trial

Dickens argues that the Arizona court’s Enmund/Tison

analysis was based on an unreasonable determination of the

facts, because (1) Amaral was not a credible witness; and (2)

there was no evidence that (a) Dickens knew Amaral intended

to rob or kill the Bernsteins, (b) Dickens knew of Amaral’s

violent propensities, or (c) Dickens knew one of the victims

might still be alive when he and Amaral left the rest area.

Dickens “may obtain relief only by showing the [Arizona

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)).

[8] Dickens recites testimony and evidence presented at

trial showing inconsistent statements from Amaral, contradic-

tory testimony from Amaral’s fellow prisoners, and the jury’s

ultimate rejection of Amaral’s testimony about an alleged

walkie-talkie conversation between Dickens and Amaral at

the murder scene.11 Aside from casting doubt on Amaral’s

credibility—a factor which the state court and jury no doubt

considered at trial12—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 Dickens had

no part in the crimes. We agree with the Arizona Supreme

Court that we must “defer to the jury and the [trial] judge

11

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.

12

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

or conspiracy to commit murder, in part, because it did not believe Ama-

ral’s testimony that Dickens ordered him to kill the Bernsteins over a two-

way radio.

DICKENS v. RYAN 8619

regarding 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 wit-

nesses’ credibility . . . .” (internal quotation marks omitted)).

Absent 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 credi-

bility.

[9] As to Dickens’s specific factual challenges, sufficient

evidence presented at trial supported the Arizona Supreme

Court’s findings to make those findings reasonable. Dickens

first argues that no evidence in the record supports the Ari-

zona courts’ determination that he knew about or helped plan

the robbery. However, 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. Moreover, Dickens

himself testified that he knew about the robbery. Dickens

admitted at trial and to police investigators that he and Amaral

staked out the rest area on the west side of the highway, he

saw the victims when they pulled into the rest area, he

watched Amaral take the revolver as he walked away from the

vehicle, and he watched Amaral shoot the victims across the

highway. Most significantly, Dickens also admitted that (1) he

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

those people” when Amaral left the truck, and (2) Amaral told

him he was going to rob the Bernsteins. In light of this evi-

dence, the Arizona Supreme Court’s determination that Dick-

ens knew about and agreed to the robbery was not

unreasonable.

Second, Dickens argues the evidence in the record does not

support the Arizona courts’ determination that he knew about

Amaral’s violent propensities. This is plainly incorrect. Dick-

ens originally met Amaral at the Oak Grove Institute for vio-

lent juveniles. Dickens learned, while working at Oak Grove,

that Amaral was a “high risk” patient, had battered a nurse,

8620 DICKENS v. RYAN

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 occa-

sions before the September 1991 murders. Lastly, Amaral

twice pointed the loaded .38-caliber revolver at Dickens’s

head to intimidate him. 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 unreason-

able.

[10] Finally, Dickens argues that no evidence in the record

supports the Arizona courts’ determination that Dickens

“failed to render aid knowing that one victim might not be

dead.” This finding relates to the Arizona Supreme Court’s

determination that Dickens exhibited a reckless indifference

to human life, but it was not a dispositive factor in that deter-

mination. 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

deciding factors were the defendants’ (1) knowledge that vic-

tims had been shot and (2) 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. There is no evidence that Dickens attempted

to aid the Bernsteins, summoned medical assistance, or other-

wise notified the authorities. Instead, he helped Amaral flee

the scene, destroy evidence, and evade capture. 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).13

13

Some evidence in the record also supports this factual determination.

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

DICKENS v. RYAN 8621

III. Dickens defaulted on his ineffective assistance of

counsel claim by failing to fairly present the claim to

the Arizona courts, but he may have shown 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. The district court determined that this

argument was procedurally defaulted, because it was not

exhausted in state court. “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) (citing 28 U.S.C.

§ 2254(b); 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 . . . must include refer-

ence 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).

A. Fair presentation in state court

[11] Constitutional claims must be “fairly presented” in

state court to provide those courts an opportunity to act on

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

curiam). “It would be contrary to [the] purpose [of Section

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

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

stein was still alive and “thrashing” around in pain. At a minimum, Dick-

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

what the deputy sheriff encountered at the rest area, it is likely that Bryan

exhibited signs of life and/or was thrashing around in pain when Dickens

drove through the rest area. Nonetheless, we need not determine whether

the Arizona courts’ determination was reasonable, because this finding is

not critical to the Enmund/Tison analysis.

8622 DICKENS v. RYAN

2254(b)] 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.” Cullen v. Pinholster, 563 U.S. ___, 131

S. Ct. 1388, 1399 (2011). Therefore, a claim has not been

fairly presented in state court if new factual allegations (1)

“fundamentally alter the legal claim already considered by the

state courts,” Vasquez v. Hillery, 474 U.S. 254, 260 (1986);

Beaty v. Stewart, 303 F.3d 975, 989-90 (9th Cir. 2002), or (2)

“place the case in a significantly different and stronger evi-

dentiary posture than it was when the state courts considered

it,” Aiken v. Spalding, 841 F.2d 881, 883 (9th Cir. 1988);

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 evidenti-

ary basis for [his] right-to-counsel and voluntariness argu-

ments, thereby presenting the very type of evidence which the

state should consider in the first instance.” 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

serious allegations concerning comments by the

prosecutor alleged to have been made to defense

counsel sometime during 1986. Those representa-

tions, if proven, might have presented in a different

light the factual issues concerning the motivation of

the prosecutor in exercising his peremptory chal-

lenges. The alleged remarks, however, . . . have not

been presented to the state courts, either on appeal or

during post-conviction proceedings. In habeas pro-

DICKENS v. RYAN 8623

ceedings, 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. . . .

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 thereaf-

ter, under the appropriate procedural strictures, may

the matter be addressed in federal court.

Id. (emphasis added) (internal citations omitted).14

In this case, Dickens argued to the Arizona trial court that

his sentencing counsel provided ineffective assistance. Dick-

ens claimed, among other things, that sentencing counsel did

14

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

Fourth, Fifth, Sixth, and Tenth 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 evi-

dentiary 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 ineffec-

tive assistance of counsel claim into one that was ‘significantly different

and more substantial’ ” (citation omitted)); Wise v. Warden, Md. Peniten-

tiary, 839 F.2d 1030, 1033 (4th Cir. 1988) (“The exhaustion doctrine is

not satisfied where a federal habeas petitioner presents evidence which

was not presented to the state court and which places his case ‘in a signifi-

cantly different and stronger evidentiary posture than it was when the state

courts considered it.’ ” (citation omitted)); Sampson v. Love, 782 F.2d 53,

57-58 (6th Cir. 1986) (dismissing habeas petition for failure to exhaust

when stronger evidence presented in the federal hearing showed that jurors

actually knew about petitioner’s previous sentence); Brown v. Estelle, 701

F.2d 494, 495 (5th Cir. 1983) (“Where a federal habeas petitioner presents

. . . evidence not before the state courts such as to place the case in a sig-

nificantly 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.”).

8624 DICKENS v. RYAN

not direct the work of the court-appointed psychologist, Dr.

Todd A. Roy, and did not adequately investigate Dickens’s

background. In preparation for his testimony, sentencing

counsel provided Dr. Roy with several boxes of material doc-

umenting Dickens’s history. Dr. Roy later “adduced informa-

tion from [Dickens] relative to a possible medical or mental

condition.” However, Dickens alleged that sentencing counsel

(1) “conducted no investigation whatsoever into the possibil-

ity [Dickens] was suffering from any medical or mental

impairment,” and (2) failed to direct Dr. Roy to any particular

mitigating evidence. The trial court rejected this claim on the

merits, finding that sentencing counsel’s performance was not

constitutionally deficient and that Dickens “failed to demon-

strate 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 Dick-

ens’s Strickland claim on appeal.

[12] In federal court, Dickens changed his claim to include

extensive factual allegations suggesting Dickens suffered

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

damage. Dickens argues that sentencing counsel’s failure to

uncover and present these specific mitigating conditions

amounted to constitutionally deficient performance under

Strickland v. Washington, 466 U. S. 668 (1984). This new

evidence creates a mitigation case that bears little resem-

blance 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, averring only generally that sentencing

counsel did not effectively evaluate whether Dickens “suffer-

[ed] from any medical or mental impairment.” 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 ineffective assistance of counsel claim. Therefore,

DICKENS v. RYAN 8625

the district court correctly determined that Dickens’s newly-

enhanced Strickland claim is procedurally barred.

Dickens argues the district court erred, because he estab-

lished a sufficient factual basis to exhaust his claim in state

court according to the Ninth Circuit’s holdings in Weaver v.

Thompson, 197 F.3d 359 (9th Cir. 1999), Pinholster v. Ayers,

590 F.3d 651 (9th Cir. 2009) (en banc), reversed on other

grounds, Cullen, 131 S. Ct. at 1398, and Lopez v. Schriro, 491

F.3d 1029 (9th Cir. 2007). His reliance on these cases is mis-

placed. In Weaver, we rejected the argument that a habeas

petitioner failed to exhaust his claim in state court, because he

modified the factual basis for his bailiff misconduct claim on

appeal. 197 F.3d at 364-65. As we explained, “Weaver’s

inability to fully explore what transpired during that incident

[between the bailiff and the jury] stemmed from the state

courts’ refusal to grant him an evidentiary hearing on the mat-

ter, rather than from any failure of diligence on his part.” Id.

at 364. We noted further that the petitioner “pressed this same

claim” before the state and federal courts: the bailiff made an

inappropriate comment that coerced the jury into rendering a

premature decision, which violated Weaver’s due process and

equal protection rights. Id. The only change in Weaver’s

claim was the precise wording of the bailiff’s comment,

which was clarified at the evidentiary hearing. Id.

In Pinholster, we determined that a habeas petitioner’s

ineffective assistance of sentencing counsel claim was suffi-

ciently exhausted, because: (1) he “exercised diligence in pur-

suing an evidentiary hearing in state court regarding his

mitigation ineffective assistance claim”; and (2) “both the fed-

eral and the state habeas petitions detail many substantially

identical facts, including . . . Pinholster’s home life as a child,

and Pinholster’s educational, medical, social, psychological,

and family background.” 590 F.3d at 668-69 (emphasis

added). We further noted that, “[a]lthough Pinholster substi-

tuted experts during the proceedings who ultimately devel-

oped different mental impairment theories, these experts

8626 DICKENS v. RYAN

nonetheless relied on the same background facts that Pinhol-

ster presented to the state court.” Id. at 669 (emphasis added).

Finally, in Lopez, we held that a capital habeas petitioner

exhausted his Strickland claim in state court, because he

asserted sufficient evidence of the mitigating conditions to the

state court. 491 F.3d at 1041. Lopez argued in federal court

that his post-conviction counsel failed to uncover and present

evidence of organic brain damage, dysfunctional childhood,

and alcohol abuse. Id. at 1040-41. We concluded that this

argument was properly exhausted, because “the state court

record contain[ed] some evidence of a dysfunctional child-

hood and alcoholism.” Id. at 1041. However, we did not allow

Lopez to supplement the record with additional evidence of

prejudice on his ineffective assistance of sentencing counsel

claim. Id. at n.8 (“We note that Lopez apparently wishes to

supplement the record in federal court with additional evi-

dence . . . that was not presented to the state courts. On

remand, the district court will therefore need to determine

whether Lopez . . . is entitled to supplement the record . . . .”

(citing 28 U.S.C. § 2254(e)(2)). Thus, Lopez did not deter-

mine whether a habeas petitioner can add evidence to his

claim on federal appeal that would render the claim unex-

hausted.

This case is distinguishable from Weaver, Pinholster, and

Lopez. Dickens’s factual allegations in federal court do not (1)

amount to a minor change in the semantics of already-

presented evidence, see Weaver, 197 F.3d at 364-65; (2) pre-

sent “substantially identical facts” to those alleged in state

court, see Pinholster, 590 F.3d at 668-69; or (3) build upon

the same background evidence presented in state court, see

Lopez, 491 F.3d at 1041. Dickens never discussed his moth-

er’s alcohol consumption during pregnancy or any specific

circumstances that would have caused organic brain damage

in state court. He also does not dispute that he never specifi-

cally raised FAS or organic brain damage as mitigating fac-

tors in state court. Thus, Dickens’s new factual allegations do

DICKENS v. RYAN 8627

not build upon specific factual allegations made in state court.

This case is similar to Smith v. Quarterman, in which the

Fifth Circuit determined that a petitioner’s inclusion of new

and more specific evidence “regarding [his] childhood and the

effects of his substance abuse . . . constitute[s] ‘material addi-

tional evidentiary support’ ” for his Strickland claim. 515

F.3d 392, 402 (5th Cir. 2008) (holding that petitioner’s claim

was procedurally barred).

[13] In sum, Dickens’s Strickland claim is procedurally

barred, because the new evidence of prejudice was not fairly

presented to the state courts. This new evidence substantially

improves the evidentiary posture of Dickens’s claim in federal

court. See Peterson, 319 F.3d at 1156 (“When a prisoner has

deprived the state courts of a fair opportunity to pass on his

claim and state procedural rules bar him from returning to

state court, he has procedurally defaulted and is ineligible for

federal habeas relief unless he can show ‘cause and preju-

dice.’ ” (citation omitted)).

B. Cause and prejudice

Dickens argues that, even if his claim is unexhausted, the

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

counsel—in failing to raise the FAS and organic brain dam-

age claims to the Arizona Supreme Court—constitutes cause

to overcome the default. See Coleman, 501 U.S. at 749-50

(“Under Sykes and its progeny, an adequate and independent

finding of procedural default will bar federal habeas review of

the federal claim, unless the habeas petitioner can show

‘cause’ for the default and ‘prejudice attributable thereto’

. . . .” (citations and internal quotation marks omitted)). To

establish cause for a procedural default, “a petitioner must

demonstrate that the default is due to an external objective

factor that cannot fairly be attributed to him.” Smith v. Bald-

win, 510 F.3d 1127, 1146 (9th Cir. 2007) (en banc) (internal

quotation marks omitted)). “Attorney ignorance or inadver-

tence is not cause, but attorney error rising to the level of an

8628 DICKENS v. RYAN

independent constitutional violation (in the form of ineffec-

tive assistance of counsel) does constitute cause.” Moormann

v. Schriro, 426 F.3d 1044, 1058 (9th Cir. 2005) (citing Cole-

man, 501 U.S. at 753-54).

The district court held that Dickens’s ineffective-

assistance-of-PCR-counsel claim may not constitute cause to

excuse the procedural default of his newly-enhanced

ineffective-assistance-of-sentencing-counsel claim. The dis-

trict court supported its holding by noting that ineffective

assistance of PCR counsel cannot rise to the level of an inde-

pendent constitutional violation sufficient to constitute cause,

because there is no constitutional right to counsel in state PCR

proceedings. The district court’s conclusion was correct under

the then-existing, clear circuit law. See, e.g., Smith, 510 F.3d

at 1146-47 (“[B]ecause ‘there is no constitutional right to an

attorney in state post-conviction proceedings,’ attorney inef-

fectiveness ‘in the post-conviction process is not considered

cause for the purpose[ ] of excusing the procedural default at

that state.” (internal quotation marks, alterations, and citations

omitted)); Manning v. Foster, 224 F.3d 1129, 1133 (9th Cir.

2000) (“[T]here is no constitutional right to an attorney in

state post-conviction proceedings. Therefore, any ineffective-

ness of [the defendant’s] attorney in the post-conviction pro-

cess is not considered cause for the purposes of excusing the

procedural default at that stage.” (citation omitted)). As an

additional ground for denying Dickens’s claim for cause, the

district court cited Murray v. Carrier, 477 U.S. 478, 489

(1986), and held that Dickens was required to (but did not)

present his claim of ineffective assistance of PCR counsel to

the state courts as an independent claim in order for it to be

used to establish cause.

[14] However, in Martinez v. Ryan, the Supreme Court

found “it . . . necessary to modify the unqualified statement

in Coleman that an attorney’s ignorance or inadvertence in a

postconviction proceeding does not qualify as cause to excuse

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

DICKENS v. RYAN 8629

creates a narrow exception to Coleman: “Inadequate assis-

tance of counsel at initial-review collateral proceedings may

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

of ineffective assistance at trial.”15 Id. “Where, under state

law, claims of ineffective assistance of trial counsel must be

raised in an initial-review collateral proceeding, a procedural

default will not bar a federal habeas court from hearing a sub-

stantial 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. The Supreme

Court expressly held this to be a narrow equitable ruling and

not a constitutional ruling. Id. at 1318-20. For a prisoner to

meet this equitable rule establishing cause for a procedural

default in a scenario applicable to this case, the prisoner must

demonstrate that “counsel in the initial-review collateral pro-

ceeding, where the claim should have been raised, was inef-

fective under the standards of Strickland . . . .” Id. at 1318. In

addition, “[t]o overcome the default, a 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.

at 1318-19 (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)

(describing standards for issuing certificates of appeala-

bility)).

[15] Here, Dickens argues that ineffective assistance of his

PCR counsel caused the procedural default and Arizona

requires ineffective-assistance-of-sentencing-counsel claims

to be raised in a defendant’s first collateral proceeding—i.e.,

an initial-review collateral proceeding. Therefore, the newly

announced rule in Martinez may provide a path for Dickens

to establish cause for the procedural default of his newly-

enhanced claim of ineffective assistance of sentencing coun-

sel, if he can show that the claim is substantial and that his

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.

8630 DICKENS v. RYAN

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. 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.”).

Appellees present various arguments why Martinez does

not apply to Dickens’s situation. We decline to address all but

one of these arguments based on our remand to the district

court to decide the applicability and impact of Martinez.

Appellees argue 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. Without

the benefit of Martinez, the district court held that Dickens

could not assert his claim of ineffective assistance of counsel

as cause without first presenting it (i.e., an independent claim)

to the state courts. Although the district court had reasonable

grounds for its conclusion, see Edwards v. Carpenter, 529

U.S. 446, 451-54 (2000); Murray, 477 U.S. at 489, reading

the case law supporting such a conclusion with Martinez now

indicates that no such requirement exists in the narrow cir-

cumstances when Martinez applies.

[16] Martinez’s equitable rather than constitutional ruling

and its own factual background lead us to conclude that an

ineffective assistance of PCR counsel claim used to establish

cause for a procedural default of a claim for ineffective assis-

tance of sentencing counsel need not be exhausted itself. It is

true that “ineffective assistance adequate to establish cause for

the procedural default of some other constitutional claim is

itself an independent constitutional claim.” Edwards, 529 U.S.

at 451 (alterations in original). Further, it is true that “the

DICKENS v. RYAN 8631

exhaustion doctrine . . . generally requires that a claim of inef-

fective assistance be presented to the state courts as an inde-

pendent claim before it may be used to establish cause for a

procedural default.” Murray, 477 U.S. at 488-89 (citation

omitted). However, it appears that the first time the petitioner

in Martinez argued ineffective assistance of PCR counsel was

in his federal habeas petition. See Martinez v. Ryan, 132 S. Ct.

at 1314; Martinez v. Schriro, 623 F.3d 731, 734 (9th Cir.

2010), rev’d by Martinez v. Ryan, 132 S. Ct. 1309. Notwith-

standing, the Supreme Court did not find the claim barred for

not being presented to the state courts. Therefore, there seems

to be no requirement that the claim of ineffective assistance

of PCR counsel as cause for a ineffective-assistance-of-

sentencing-counsel claim be presented to the state courts.

[17] Furthermore, as Dickens points out, “[t]he question

whether there is cause for a procedural default does not pose

any occasion for applying the exhaustion doctrine when the

federal habeas court can adjudicate the question of cause—a

question of federal law—without deciding an independent and

unexhausted constitutional claim on the merits.” Murray, 477

U.S. at 489. Martinez describes the claim of ineffective assis-

tance of PCR counsel (in an initial-review collateral proceed-

ing) as cause for the procedural default of a claim for

ineffective assistance of sentencing counsel as a “narrow

exception” to Coleman, 501 U.S. 722, and as an equitable rul-

ing, not a constitutional ruling. Martinez, 132 S. Ct. at 1315,

1318-1319. In Martinez, the Supreme Court notes that it did

not make a constitutional ruling, and “[a] constitutional ruling

would provide defendants a freestanding constitutional claim

. . . .” Id. at 1319. In other words, Martinez did not create a

constitutional right to effective assistance of counsel in PCR

proceedings. Thus, the claim of ineffective assistance of PCR

counsel used to establish cause in the narrow circumstances

outlined in Martinez is an equitable claim and not a constitu-

tional claim, see Coleman, 501 U.S. at 755 (“[T]here is no

right to counsel in state collateral proceedings.”), and there-

8632 DICKENS v. RYAN

fore, the claim for cause need not be exhausted as suggested

in Murray.

Even if the exhaustion requirement were to apply, a federal

habeas petition may be granted even though a claim is not

exhausted if “there is an absence of available State corrective

process . . . .” 28 U.S.C. § 2254(b)(1)(B)(i); see Teague v.

Lane, 489 U.S. 288, 297-98 (1989) (petitioner failed to raise

a claim at trial or direct appeal, which effectively prevented

petitioner from raising the claim in collateral proceedings,

resulting in the claim being deemed exhausted); Duckworth v.

Serrano, 454 U.S. 1, 3 (1981) (“An exception is made [to the

exhaustion requirement] only if there is no opportunity to

obtain redress in state court or if the corrective process is so

clearly deficient as to render futile any effort to obtain

relief.”). Here, a claim of ineffective assistance of PCR coun-

sel does not fit under any of the grounds for relief in PCR pro-

ceedings listed in Arizona Rule of Criminal Procedure 32.1.

As such, Dickens cannot claim ineffective assistance of PCR

counsel in a second PCR petition in Arizona, creating no

opportunity to obtain redress. Thus, the claim of ineffective

assistance of PCR counsel in an initial review collateral pro-

ceeding does not itself need to be exhausted when raised as

cause for the procedural default of an ineffective-assistance-

of-sentencing-counsel claim.

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.

DICKENS v. RYAN 8633

REINHARDT, Circuit Judge, dissenting:

The majority opinion allows the State of Arizona to execute

Dickens essentially for being the getaway driver in the armed

robbery that resulted in the death of the Bernsteins. Yet

Supreme Court case law is clear that imposition of the death

penalty on one “who does not himself kill, attempt to kill, or

intend that a killing take place or that lethal force will be

employed” is excessive punishment under the Eighth Amend-

ment. Enmund v. Florida, 458 U.S.782, 797 (1982). It is not

disputed that Dickens did not kill, attempt to kill, or intend

that the Bernsteins be killed. Under Enmund, his death sen-

tence is therefore unconstitutional.

The majority attempts to escape the clear holding of

Enmund by arguing that Dickens falls under the narrow

exception created in Tison v. Arizona, in which the Supreme

Court held that “major participation in the felony committed,

combined with reckless indifference to human life, is suffi-

cient to satisfy the Enmund culpability requirement” and justi-

fies the imposition of a death sentence on a defendant

convicted of felony-murder. 481 U.S. 137, 158 (1987). Dick-

ens, however, was neither a major participant in the commis-

sion of the robbery of the Bernsteins, nor was he recklessly

indifferent to human life. In fact, nothing material distin-

guishes Dickens from Enmund, or any other individual who

helped plan an armed robbery but whose principal role in the

commission of the offense is that of a getaway driver. It is

well established under Supreme Court law that the imposition

of the death penalty on such a defendant is unconstitutional.

The majority reaches the opposite conclusion, however, as the

result of misconstruing the record, engaging in improper fact-

finding, and relying on unreasonable findings of facts, facts

that were not determined by the Arizona Supreme Court; even

more important, the majority misconceives the clear import of

the two controlling Supreme Court cases, albeit undoubtedly

all in good faith.

8634 DICKENS v. RYAN

Because the decision of the Arizona Supreme Court finding

that Dickens was death eligible for the murder of the Bern-

steins under Enmund and Tison “involved an unreasonable

application of[ ] clearly established Federal law, as deter-

mined by the Supreme Court of the United States,” and “was

based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding,” 28

U.S.C. § 2254(d), I conclude that we are compelled to reverse

the district court’s denial of habeas and to grant the writ.

I. Enmund/Tison

The majority, as did the Arizona Supreme Court, correctly

identified the two controlling Supreme Court cases: Enmund

and Tison. In Enmund, the Supreme Court held that it was

unconstitutional to execute the defendant, who was the get-

away driver for an armed robbery of a dwelling, for “two kill-

ings that he did not commit and had no intention of

committing or causing,” namely, the murders of the victims

of the robbery by his accomplices. Enmund, 458 U.S. at 801.

The court determined that such a punishment for felony-

murder would meet neither the deterrent nor retributive goals

of the death penalty. Id. at 798-801. Five years later in Tison,

the Supreme Court carved out a narrow exception to Enmund.

Tison did not overrule Enmund, but rather clarified it by creat-

ing an explicit exception; the Court said that “major participa-

tion in the felony committed, combined with reckless

indifference to human life, is sufficient to satisfy the Enmund

culpability requirement.” Tison, 481 U.S. at 158.

More recently, in Kennedy v. Louisiana, the Supreme Court

described the holdings in Enmund and Tison as follows:

[I]n Enmund v. Florida, 458 U.S. 782 (1982), the

Court overturned the capital sentence of a defendant

who aided and abetted a robbery during which a

murder was committed but did not himself kill,

attempt to kill, or intend that a killing would take

DICKENS v. RYAN 8635

place. On the other hand, in Tison v. Arizona, 481

U.S. 137 (1987), the Court allowed the defendants’

death sentences to stand where they did not them-

selves kill the victims but their involvement in the

events leading up to the murders was active, reck-

lessly indifferent, and substantial.

554 U.S. 407, 421 (2008) (emphasis added).

With this legal framework in mind, I analyze the findings

of the Arizona Supreme Court (and the separate findings of

the majority) in support of their separate conclusions that

Dickens satisfied the two requirements for imposition of the

death penalty: (1) that he was a major participant in the rob-

bery of the Bernsteins; and (2) that he acted with reckless

indifference to human life.

II. Major Participant

The Arizona Supreme Court found that Dickens was a

major participant in the robbery because:

The robberies were premeditated, planned, and

agreed on by [Dickens] and Amaral; [Dickens] fur-

nished Amaral with the weapon used in the murders

or knew Amaral had the weapon with him for the

robberies; [Dickens] 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) (in banc)

(emphasis added). These findings rest on the role Dickens

played in the plan or agreement to commit a robbery and on

his role as a driver who witnessed but did not actively partici-

pate in the events leading up to the murders. This does noth-

ing to distinguish Dickens from other getaway drivers, and

8636 DICKENS v. RYAN

does not show that his participation in the events leading up

to the murder of the Bernsteins was “active” and “substan-

tial.” See Kennedy, 554 U.S. at 421.

First, the finding that the robbery was “premeditated,

planned and agreed on” by Dickens and Amaral, Dickens, 926

P.2d at 490, does little to meaningfully distinguish Dickens

from any other getaway driver who ordinarily plays a part in

the planning of the armed robbery and then drives the car that

contains the individuals who actually commit the robbery.

The only getaway driver who would not play such a role

would be the unwitting or coerced one, such as a driver who

is hired to act as a chauffeur for the robbers or one who is

blackmailed into doing so. If participating in the planning and

serving the ordinary role of the member of the group who

drives the car were sufficient to meet the Enmund and Tison

requirements, then almost any participant in a felony would

be a major participant. After all, most members of a group

committing a robbery will ordinarily participate in the plan-

ning of the crime, even if they go on to perform only a minor

role in the commission of the crime, such as acting as a look-

out or getaway driver.

Second, the Arizona Supreme Court relied on the fact that

Dickens “either furnished Amaral with the weapon used in

the murders or knew Amaral had the weapon with him for the

robberies.” Id. at 490 (emphasis added). It so described the

facts in the death eligibility section of its opinion, surely a

critical section in which petitioner and the federal courts are

both entitled to expect accuracy and on which both are

unquestionably entitled to rely. What the Arizona Supreme

Court’s statement means is that while Dickens may have fur-

nished Amaral with a gun, what is certain is that he knew that

Amaral had a gun. A getaway driver or other participant in an

armed robbery (again, except for an unwitting or coerced one)

knows that at least one of his accomplices is armed. Knowl-

edge of the fact that someone is armed does not, however,

make the possessor of that knowledge a major participant.

DICKENS v. RYAN 8637

Moreover, possessing that knowledge is a passive rather than

an active act. There is nothing inherent in knowing that an

accomplice is armed that raises the level of participation to

that of a major participant. This finding by the Arizona

Supreme Court is essentially that Dickens was a knowing par-

ticipant, but that is not the correct standard; Tison is a narrow

exception that requires major participation, not mere knowl-

edge.1

Third, the Arizona Supreme Court found that Dickens

“drove Amaral to the scene, waited while Amaral committed

the robberies, [and] picked up Amaral after the crime.” Id. at

490. The majority attempts to recast these findings so as to

make them more inculpatory to Dickens, by describing those

actions as “aiding Amaral’s escape,” “helping Amaral evade

capture,” and “help[ing] Amaral flee the scene.” Maj. Op. at

8612, 8613. But these are the very functions of participating

in a robbery as a getaway driver. These findings, even as

recast by the majority, do nothing to distinguish Dickens’

actions from those of other getaway drivers. Enmund, who the

Supreme Court found could not be sentenced to death, was

1

The majority makes inconsistent representations regarding whether

Dickens furnished Amaral with a weapon. At times it states that Dickens

was responsible for “arming Amaral with a handgun.” Maj. Op. at 8612,

8616. At other times, however, the majority recognizes that Dickens either

provided the handgun or knew Amaral had the handgun, as was stated by

the Arizona Supreme Court in the death eligibility section of its opinion.

Maj. Op. at 8612, 8617. The reason for its inconsistency is apparent. The

Arizona Supreme Court itself makes an inconsistent statement that led to

the majority’s own inconsistencies. It is, however, the Arizona Supreme

Court’s former statement, not the latter, that should control our analysis.

This is, after all, a death penalty case. To base our decision (even partially)

to uphold the execution of a petitioner who did not actively participate in

a murder on one of two inconsistent statements by a state court, simply

because that one supports the death penalty and the other does not falls far

short of fulfilling our obligations to the law and the Constitution. The Ari-

zona Supreme Court expressly did not make a finding one way or the

other as to whether Dickens furnished Amaral with a weapon, and it is not

for this court to do so.

8638 DICKENS v. RYAN

“in the car by the side of the road at the time of the killings,

waiting to help the robbers escape.” Enmund, 458 U.S. at 788

(emphasis added).

Finally, the court found that Dickens “witnessed the

destruction of evidence” and “failed to report the crime.”

Dickens, 926 P.2d at 490. These findings are of a passive,

rather than active, nature and do not establish that Dickens

was a major participant in the underlying robbery. Nor do

these findings do anything to distinguish Dickens from other

getaway drivers, who may well help dispose of incriminating

evidence and do what they can to cover up and prevent others

from knowing of their own involvement in the crime.2

In sum, in finding that Dickens was a major participant, the

court essentially found that he acted as the getaway driver for

Amaral, and that he did nothing to stop the robbery before or

after it was committed. But, the same could be said about

Enmund or any other getaway driver, and the Supreme Court

has clearly held that the death penalty is unconstitutional in

these circumstances. Moreover, the same could be said about

almost any participant in a felony-murder, major or minor.

The facts simply do not support a finding that Dickens played

2

The majority again attempts to recast the findings of the Arizona

Supreme Court, writing that Dickens participated in “destroying evidence”

or “assisted in the destruction of evidence,” Maj. Op. at 8612, 8613, rather

than merely “witnessed the destruction of evidence.” The Arizona

Supreme Court never made any finding that Dickens was in any way

involved in the destruction of evidence in this case. In describing the facts

in the light most favorable to the prosecution, the Arizona Supreme Court

wrote: “Amaral removed cash, traveler’s checks, and one credit card from

Bryan’s wallet, then burned the wallet and its remaining contents.” Dick-

ens, 926 P.2d at 475 (emphasis added). This recitation of facts, notably,

was “[a]ccording to Amaral’s testimony at trial,” id. at 474, so even under

that version of events, it was Amaral, not Dickens, who destroyed the evi-

dence. In any event, even if Dickens had been a participant, rather than a

mere witness, in the destruction of evidence, this does nothing to distin-

guish him from the typical getaway driver, as explained above.

DICKENS v. RYAN 8639

an active and substantial role in the robbery that resulted in

the death of the Bernsteins.

There is no basis for comparing Dickens, who helped plan

a robbery, knew his accomplice was armed, and drove the get-

away car, with the Tison brothers, the exception to the

Enmund rule on which the majority seeks to rely. The Tison

brothers “brought an arsenal of lethal weapons into the Ari-

zona State Prison which [they] then handed over to two con-

victed murderers,” helped them escape from prison,

“participated fully in the kidnaping and robbery” by flagging

down the car on the road, robbing the family, driving the fam-

ily into the desert, and holding them at gunpoint. Tison, 481

U.S. at 139-41, 151-52 (emphasis added). They knew that

Gary Tison, their father, was “thinking about” killing the fam-

ily, and “saw Greenawalt and their father brutally murder

their four captives with repeated blasts from their shotguns.”

Id. at 140-41 (emphasis added). The Tison brothers played an

active and substantial role in the commission of the crimes (as

opposed to its planning), and were therefore major partici-

pants; Dickens, whose role was limited to that of getaway

driver, was not. This is a crucial and dispositive distinction.

The findings by the Arizona Supreme Court in Dickens under-

mine the Enmund and Tison standard that only major partici-

pants in the commission of the crime may be eligible for the

death penalty, and is therefore an unreasonable application of

clearly established Supreme Court law. The lack of any true

distinguishing characteristics between Dickens and the typical

getaway driver renders the analysis by the Arizona Supreme

Court an unreasonable application of Enmund and Tison.

The majority, no doubt recognizing that the Arizona

Supreme Court findings in support of the major participant

determination describe nothing more than the typical getaway

driver, adds additional findings to support its conclusion that

Dickens was a major participant. The majority holds that

Dickens was a major participant in the robbery of the Bern-

steins because, in addition to the findings by the Arizona

8640 DICKENS v. RYAN

Supreme Court (sometimes as recast by the majority), he

“stak[ed] out the crime scene,” “target[ed] the victims,”

“watched Amaral shoot the victims,” and “continued in the

criminal venture after the murders were committed.” Maj. Op.

at 8612, 8613-14. Nowhere in its decision does the Arizona

Supreme Court take into account these findings in its major

participant determination.

Even considering these additional findings, however, the

majority does not get far. Three of its additional findings, that

Dickens staked out the crime scene, targeted the Bernsteins,

and continued in the criminal venture, do little to distinguish

Dickens from other getaway drivers who may, for example,

scout the neighborhood and identify the mom and pop store

to be robbed. Staking out the rest stop area and targeting the

Bernsteins for the robbery go only to Dickens’ role in plan-

ning the robbery, not to any active participation in its com-

mission. And every getaway driver, in some sense, continues

in the criminal venture by driving the car away from the scene

of the robbery. Doing so is the essence of being a getaway

driver. But Dickens did not continue in the criminal venture

in the way the Tison brothers did, by continuing to aid

escaped murderers and participating in a crime spree, “ending

in a gun battle with the police in the final showdown.” See

Tison, 481 U.S. at 151. Dickens drove the car away from the

rest stop, and parted ways with Amaral two days later. In fact,

Dickens refused to help Amaral use the credit card he had

stolen from the Bernsteins. Despite its attempt to conjure up

more support, the majority cannot distinguish Dickens from a

typical getaway driver, and thus cannot establish that Dickens

was a major participant in the underlying crime.

The fourth finding by the majority, that Dickens “watched

Amaral shoot the victims,” is not only one that the Arizona

Supreme Court did not take into account in its major partici-

pation determination; it is a finding that the Arizona Supreme

Court did not make at all.3 But rather than “take the facts as

3

The trial court, in its death eligibility determination, made a finding

that Dickens “witnessed the shootings.” It is well established, however,

DICKENS v. RYAN 8641

the Arizona Supreme Court has given them to us,” Tison, 481

U.S. at 151, the majority decides to engage in de novo fact-

finding, and unreasonable factfinding at that, as the finding

that Dickens watched the murders is unsupported by the

record. Before addressing why the finding is unreasonable,

however, it is important to consider why the majority feels

compelled to make this finding in the first place. Dickens cor-

rectly argues that his case is analogous to Enmund, and there-

fore his death sentence is unconstitutional, because he “was

not present when the killing took place.” See Enmund, 458

U.S. at 795. Like Enmund, he was parked in a car some dis-

tance from the scene of the murder, acting as the getaway

driver. See id at 784, 788. The detectives who examined the

crime scene and the surrounding area calculated that it took

2 minutes and 29 seconds to walk from where Dickens was

parked to where the murders took place.4

that “[i]n conducting review of a state court decision, we look to the last

reasoned state-court decision.” Lopez v. Ryan, 630 F.3d 1198, 1202 (9th

Cir. 2011) (internal quotation marks and citation omitted). We must there-

fore look only to the Arizona Supreme Court decision, which did not make

this finding. Further, even if we were to consider the trial court decision,

the trial court did not make the broad finding the majority makes here that

Dickens actually “witnessed Amaral shoot the victims,” in the sense that

the majority implies. Dickens did, as explained below, witness the shoot-

ings in that he heard the gunshot and saw a muzzle flash. But he did not,

and the record is clear on this, actually see Amaral shooting the Bernsteins

in the head.

4

The Federal Highway Administration, which establishes the speed for

stop lights at crosswalks, sets the standard crossing time at 3.5 feet per

second for pedestrian crosswalks. See U.S. Department of Transportation,

Federal Highway Administration, Manual on Uniform Traffic Control

Devices (2009), Ch. 4N, In-Roadway Lights, http://mutcd.fhwa.dot.gov/

pdfs/2009/part4.pdf (Dec. 2009). The detectives who measured the dis-

tance in this case said they were walking “at a normal walking pace.”

Assuming a walking speed above that set by the Federal Highway Admin-

istration, at 4 feet per second, the average person walks 596 feet, or 199

yards, in 2 minutes and 29 seconds. Enmund was 200 yards away from the

scene of the murders, Enmund, 458 U.S. at 784, and the Supreme Court

held that he was not present at the scene. Id. at 795. Neither, therefore,

was Dickens.

8642 DICKENS v. RYAN

The majority attempts to refute Dickens’ presence argu-

ment in two ways. First, the majority holds that “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.” Maj. Op. at 8612. To anyone who has

read Enmund and Tison, however, there can be no question

that the Supreme Court established that presence is a critical

aspect in the analysis for death eligibility. In both Enmund

and Tison, the Supreme Court stressed on several occasions

that Enmund, who was found not death eligible, had not been

present at the time of the killings. See Enmund, 458 U.S. at

795 (noting that “the defendant . . . was not present when the

killing took place”); Tison, 481 U.S. at 149 (“At one pole was

Enmund himself: the minor actor in an armed robbery, not on

the scene, who neither intended to kill nor was found to have

had any culpable mental state.”) (emphasis added); id. at 158

(noting that Enmund was “sitting in a car away from the

actual scene of the murders”). In surveying states’ practices

on imposing death sentences on those convicted of felony-

murder, the Supreme Court in Enmund found that only 16 out

of 739 death row inmates in the entire United States were not

physically present at the scene of the crime, and only 3 of

those inmates (including Enmund) were not physically pres-

ent and had not “hired or solicited someone else to kill the

victim or participated in a scheme designed to kill the victim.”

Enmund, 458 U.S. at 795; see also Tison, 481 U.S. at 148

(“The Court [in Enmund] found . . . that only 3 of 739 death

row inmates had been sentenced to death absent an intent to

kill, physical presence, or direct participation in the fatal

assault . . . .”) (emphasis added).

In Tison, the Supreme Court repeatedly stressed the impor-

tance of presence. It noted the finding in Enmund that only 3

death row inmates in the entire United States were neither

present at the scene nor involved in a scheme to murder. Id.

at 148. Moreover, the Supreme Court found a consensus

among state courts that certain aggravated felony-murders

merited the death penalty, as an exception to Enmund. Id. at

DICKENS v. RYAN 8643

154-55. In describing each of those cases, the Supreme Court

specifically noted that the defendants were present at the

scenes of the murders, contemplated killing, or used lethal

force. Id. Moreover, in distinguishing the Tison brothers from

Enmund, and justifying the death penalty for the former while

not for the latter, the Supreme Court stated:

Far from merely sitting in a car away from the actual

scene of the murders acting as the getaway driver to

a robbery, each [Tison brother] was actively

involved in every element of the kidnaping-robbery

and was physically present during the entire

sequence of criminal activity culminating in the mur-

der of the Lyons family and the subsequent flight.

Id. at 158 (emphasis added). Even if presence is not a “man-

datory prerequisite” to death eligibility, Maj. Op. at 8612, it

is certainly a critical aspect of the inquiry under Enmund and

Tison.

Second, perhaps acknowledging the weakness of its argu-

ment that presence is not a critical factor, the majority goes

on to hold that “even if Tison and Enmund could be read to

incorporate a mandatory ‘presence’ requirement, it seems that

the Arizona Supreme Court suggested that Dickens met that

requirement” because, the majority says, Dickens “watched

each part of the Bernsteins’ murders as they unfolded.” Maj.

Op. at 8613-14. According to the majority, “Dickens testified

at trial that he. . . (1) watched Amaral leave the truck with a

loaded .38-caliber handgun, knowing Amaral was going to

rob the Bernsteins at gunpoint; (2) watched Amaral walk

across the highway; (3) observed Amaral moving the Bern-

steins around the front of their car in the path of the illumi-

nated headlamps; and (4) saw flashes as Amaral shot the

victims in the head.” Maj. Op. at 8614-15.

The majority overstates the evidence in the record. Dickens

testified that after Amaral left his truck, he “lost sight . . .

8644 DICKENS v. RYAN

when he came up to the edge of the interstate” and then

“heard one shot and one muzzle flash.” Dickens further testi-

fied that he saw a “shadow as they went in front of the lights,”

like “a flicker of light.” The prosecution read into the record

the following statement by Dickens:

I remember seeing, I think I seen, I guess it was

three, three times I seen somebody pass in front of

the lights. I seen the first person, then the second

person, and then a few steps behind I seen Travis

walk behind or in front of the light.

Moreover, Officer Johnson (the first officer on the scene) tes-

tified that it was difficult to see from where Dickens was

parked across the highway to the other rest area where Amaral

murdered the Bernsteins, in part because there was no lighting

in either rest area. In fact, absent the car headlights, it was

“pitch black.” Amaral also testified at trial that he did not see

the moon on the night of the murders,5 and that there were no

street lights that shone into the rest area. This evidence does

not support a finding that Dickens actually “watched each part

of the Bernsteins’ murders as they unfolded.” Maj. Op. at

8614. Certainly not, as the majority suggests, in the same way

that the Tison brothers watched the victims in that case being

murdered. Dickens saw flickers of light, shadows, heard a

gunshot, and saw a muzzle flash. The Tison brothers, in con-

trast, were at the scene of daylight murders and “they saw

Greenawalt and their father brutally murder their four captives

with repeated blasts from their shotguns.” Tison, 481 U.S. at

141 (emphasis added). In any event, under no fair reading of

the evidence can it be said that because Dickens could see

part of the shooting of the Bernsteins he was present at the

scene of the murders. To the contrary, he like Enmund was

sitting in a parked car, approximately the same distance away

from the scene as Enmund.

5

The sun set at 6:52 P.M. that night, and the murders occurred around

9:17 P.M.

DICKENS v. RYAN 8645

The majority adds that Dickens was present at the scene of

the murders because he “drove through the rest stop to pick

Amaral up, and (to use his words)6 verify “everything had

been taken care of” (i.e., verify the victims had been shot).”

Maj. Op. at 8614. In reaching this finding, the majority goes

beyond overstating the evidence; it completely misconstrues

it or adds to it. No state court ever found as a fact that Dick-

ens drove through the rest area. The “facts and procedural his-

tory” section of the Arizona Supreme Court decision put the

facts in the light most favorable to the state. Dickens, 926

P.2d at 474-75. The court began that section with the state-

ment “[a]ccording to Amaral’s testimony at trial.” Id. at 474.

It did not, however, adopt some of those statements. For

example, the court included “facts,” such as the use of the

walkie-talkie and other parts of Amaral’s “testimony” that it

deliberately did not rely on in its discussion of death eligibil-

ity under Enmund and Tison, and that the prosecution itself

disavowed during the state proceedings as well as before this

court. And yet, even in that “facts and procedural history”

section, the Arizona Supreme Court made no mention of

Dickens driving through the rest area. Rather, the court said

that “[w]hile Amaral was with the Bernsteins, [Dickens]

drove across the median to the westbound lanes, where he

picked up Amaral.” Id. at 475 (emphasis added). Its major

participant and reckless indifference discussion under

Enmund and Tison also did not mention anything about Dick-

ens driving through the rest area.7

Only one statement by the Arizona Supreme Court could

possibly be interpreted as support for a finding (had one been

made) that Dickens drove through the rest area, namely, that

Dickens “failed to render aid even though he knew one victim

6

By “his words” the majority means what Amaral testified to at trial

about a conversation that he “believe[d]” he had with Dickens. I discuss

the unreasonable reliance on this testimony infra at pages 8646-47.

7

Incidentally, neither did the state trial court decision make any mention

of Dickens driving through the rest stop.

8646 DICKENS v. RYAN

might not be dead.” Id. at 490. If we overlook the fact that the

Arizona Supreme Court did not specify any factual basis for

this finding, and presume that it was making an inferential

finding that Dickens drove through the rest stop and as a

result of doing so knew that one victim might not be dead,

then that finding clearly constitutes an unreasonable finding

of fact, as it is unsupported by the evidence in the record.

Amaral never stated in his testimony that he saw Dickens

drive through the rest area or that Dickens did so. Amaral tes-

tified 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 [from the interstate] into

the lane going out of the rest stop.” Even after prompting as

to whether he saw Dickens drive through the rest stop, Ama-

ral said he did not remember Dickens driving through the rest

stop. At trial, he further 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.”

(emphasis added). Dickens, of course, also denied driving

through the rest stop.

The only allegation that Amaral made with respect to this

point, on which the majority could conceivably be thought to

rely to support its own finding, see Maj. Op. at 8620-21 n.13,

was a belated half-sentence reference by Amaral to a conver-

sation that Amaral said he had with Dickens sometime after

the murders in which he “believe[d]” Dickens said that he

went through the rest stop. Neither the Arizona Supreme

Court nor the trial court ever mentioned that purported con-

versation. Neither court deemed the belated statement credible

or worthy of mention. In the end, this half-sentence, the only

possible “evidence” regarding Dickens driving through the

rest stop, is mentioned only by the majority here but not by

any state court. Moreover, that “evidence” is contrary to what

Amaral himself observed, and contrary to what Amaral testi-

fied to regarding the lack of time for Dickens to drive through

the rest stop before picking him up on the side of the road.

Reliance on the isolated half-sentence about what Amaral

DICKENS v. RYAN 8647

“believe[d]” Dickens had said to support a finding (itself non-

existent) that Dickens drove through the rest stop would in

any event have been “based on an unreasonable determination

of the facts in light of the evidence presented in the State

court proceeding.” 28 U.S.C. § 2254(d). In short, there is no

basis for any finding that Dickens drove through the rest stop

and even more important no finding was made by any state

court.

***

In sum, the Arizona Supreme Court found that Dickens

planned a robbery with Amaral, knew Amaral was armed,

acted as the getaway driver, and witnessed the destruction of

evidence. That, according to the court, made him a major par-

ticipant in the robbery of the Bernsteins. It is evident under

Enmund and Tison, however, that these findings are far from

sufficient. In reaching a contrary result, the Arizona Supreme

Court engages in an unreasonable application of Enmund and

Tison. The record is clear: Dickens, like Enmund, acted as a

getaway driver, and “was not present when the killing took

place.” Enmund, 458 U.S. at 795. Instead, like Enmund, Dick-

ens was “sitting in a car away from the actual scene of the

murders.” Tison, 481 U.S. at 158. Dickens’ participation in

the commission of the crime can be described in the same

way the Supreme Court described the participation of the

defendant in Enmund: he was a “minor actor in an armed rob-

bery, not on the scene, who neither intended to kill nor was

found to have had any culpable mental state.” Id. at 149.

Although Dickens helped plan the robbery, like Enmund, he

was not a major participant in the commission of the crime

itself. “Putting [him] to death to avenge two killings that he

did not commit and had no intention of committing or causing

does not measurably contribute to the retributive end of ensur-

ing that the criminal gets his just deserts.” Enmund, 458 U.S.

at 801. Nor does it serve any deterrent purpose. Id. at 798-99.

The Arizona Supreme Court decision to the contrary “in-

volved an unreasonable application of[ ] clearly established

8648 DICKENS v. RYAN

Federal law, as determined by the Supreme Court of the

United States.” See 28 U.S.C. § 2254(d).

In short, Dickens clearly does not meet the major partici-

pant requirement necessary for a determination of death eligi-

bility under Enmund/Tison. The Arizona Supreme Court’s

contrary ruling is an unreasonable application of established

Supreme Court law.

III. Reckless Indifference

Even if Dickens were a major participant in the underlying

robbery, the evidence does not support a finding that he satis-

fied the second requisite element necessary to make him death

eligible: reckless indifference to human life. In Tison, the

Supreme Court established a standard for reckless indiffer-

ence to the value of human life that was not quite intent to

kill, but was more than mere foreseeability: reckless indiffer-

ence means “knowingly engaging in criminal activities known

to carry a grave risk of death.” Tison, 481 U.S. at 157. The

Supreme Court gave some examples of those who exhibit

“reckless indifference to the value of human life”: individuals

it described as “among the most dangerous and inhumane of

all” murderers. Id. They include “the person who tortures

another not caring whether the victim lives or dies, or the rob-

ber who shoots someone in the course of the robbery, utterly

indifferent to the fact that the desire to rob may have the unin-

tended consequence of killing the victim.” Id. Dickens, the

getaway driver in a robbery, clearly is not “among the most

dangerous or inhumane of all” murderers.

Here, the Arizona Supreme Court found that Dickens acted

with reckless indifference to human life because, in addition

to the fact that he was a major participant, he “had consider-

able experience with the justice system through his other fel-

ony convictions, was aware that Amaral had a violent and

explosive temper, and failed to render aid knowing that one

victim might not be dead.” Dickens, 926 P.2d at 490. The

DICKENS v. RYAN 8649

majority concludes that, given these facts as determined by

the Arizona Supreme Court, the “conclusion that Dickens

exhibited a reckless indifference to human life was not objec-

tively unreasonable.” Maj. Op. at 8616. Here, too, the major-

ity is clearly wrong. The Arizona Supreme Court conclusion

constitutes an unreasonable application of established

Supreme Court law and is based on an unreasonable determi-

nation of the facts.

The majority first erroneously rejects the argument that

armed robbery is not a crime known to carry a great risk of

death, as the Supreme Court required for a finding of reckless

indifference. See Tison, 481 U.S. at 157. In Tison, the

Supreme Court noted that there are some crimes for which

“any major participant necessarily exhibits reckless indiffer-

ence to the value of human life.” Id. at 158 n.12. The Supreme

Court expressly did not include armed robbery in that class of

crimes, however. Instead, it remanded for the state courts to

determine whether the Tison brothers, convicted of armed

robbery and kidnapping, had acted with reckless indifference.

Id. at 156-58. In Enmund, moreover, the Supreme Court held

that its analysis of whether Enmund acted with a sufficiently

culpable mental state would be very different “if the likeli-

hood of a killing in the course of a robbery were so substantial

that one should share the blame for the killing if he somehow

participated in the felony.” Enmund, 458 U.S. at 799. The

Supreme Court held that the kind of crime that Enmund (and

Dickens) committed — armed robbery — was not one in

which “death so frequently occurs.” Id. at 799-800. It cited

the Uniform Crime Report to note that “only about 0.43% of

robberies in the United States in 1980 resulted in homicide.”

Id. at 800 n.24. Looking at that same data source, in 2010, the

last year for which full statistics are available, there were

367,832 robberies, and 780 murders in connections with rob-

beries.8 Thus, the number of murders in connection with rob-

8

See Uniform Crime Report, 2010, Crime in the United States, tbl. 1,

http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/crime-in-the-

8650 DICKENS v. RYAN

beries as a percentage of total robberies has actually been cut

in half since Enmund was decided, from 0.43% to 0.21%. In

holding that “Dickens failed to cite any U.S. Supreme Court

precedent, and we know of none, clearly establishing” the

principle that armed robbery is not the type of crime “known

to carry a grave risk of death,” Maj. Op. at 8616, the majority

simply fails to honor the analysis in Tison and Enmund. The

clear import of those cases is that mere participation in an

armed robbery is not enough to establish that a defendant

acted with reckless indifference to human life.

Still, the question remains whether under the facts of this

case, as determined by the Arizona Supreme Court, a finding

that Dickens acted with reckless indifference to human life is

reasonable. The answer is, without doubt, no. First, the Ari-

zona Supreme Court found that Dickens had “considerable

experience with the justice system through his other felony

convictions.” Dickens, 926 P.2d at 490. Notably, the majority

fails to discuss how this fact supports a finding of acting with

reckless indifference. It was wise to do so, because convic-

tions for forgery and lewd and lascivious acts with a child

under 14 years of age, the crimes for which Dickens had been

convicted, do nothing to establish that he “knowingly engag-

[ed] in criminal activities known to carry a grave risk of

death.” Tison, 481 U.S. at 157.

Second, the Arizona Supreme Court found that Dickens

was “aware that Amaral had a violent and explosive temper.”

Dickens, 926 P.2d at 490. The majority relies heavily on this

“fact” in its reckless indifference analysis, ultimately conclud-

ing that “Dickens ‘could have foreseen that lethal force might

be used’ in the course of the robbery.” Maj. Op. at 8617

(quoting Tison, 481 U.S. at 151-52). The Supreme Court held

u.s.-2010/tables/10tbl01.xls (last visited Jan. 11, 2012); Expanded Homi-

cide Data, tbl. 12, http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/

2010/crime-in-the-u.s.-2010/tables/10shrtbl12.xls (last visited Jan. 11,

2012).

DICKENS v. RYAN 8651

in Tison, however, that foreseeability could not be the test for

reckless indifference. In fact, the Supreme Court noted that

“[p]articipants in violent felonies like armed robberies can

frequently anticipate that lethal force might be used in accom-

plishing the underlying felony.” Tison, 481 U.S. at 150-51

(emphasis added) (internal quotation marks, alterations and

ellipses omitted). “Enmund himself may well have so antici-

pated.” Id. at 151. “[T]he possibility of bloodshed is inherent

in the commission of any violent felony and this possibility

is generally foreseeable and foreseen.” Id. If foreseeability

were the test for death penalty eligibility, then that test would

be reduced to “little more than a restatement of the felony-

murder rule itself.” Id. Thus, the holding by the majority that

Dickens could foresee the use of lethal force is insufficient

and cannot support the proposition for which it is advanced.

Finally, the Arizona Supreme Court found that Dickens

“failed to render aid even though he knew one victim might

not be dead.” Dickens, 926 P.2d at 490. First, for the reasons

stated in the previous section of this dissent, if the Arizona

Supreme Court was making an inferential finding sub silentio

that Dickens drove through the rest stop and as a result of

doing so affirmatively knew that one victim might not be

dead, then the evidence in the record simply does not support

such a finding. Of course, if Dickens did not drive through the

rest area, then there is no factual basis whatsoever in the

record to support a finding that he knew that one victim might

be alive. Without any facts to support a finding, and the only

facts in the record being to the contrary, the finding that Dick-

ens knew that one victim might still be alive and that he was

recklessly indifferent in failing to stop and render aid is

“based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding.” 28

U.S.C. § 2254(d).9

9

Apparently recognizing that the finding by the Arizona Supreme Court

that Dickens knew Bryan Bernstein might still be alive is indefensible, the

8652 DICKENS v. RYAN

Next, as the state in effect conceded at oral argument, the

simple failure to go through the rest stop and check the vic-

tims to make sure they were not alive would not constitute

reckless indifference. Otherwise, any getaway driver would

be recklessly indifferent if he fulfilled his role and drove away

from the scene of the crime without first checking to deter-

mine whether all possible victims of a shooting in the course

of a robbery were dead. It is clear that getaway drivers are not

per se death eligible because Enmund was not death eligible,

and the Tison Court repeatedly made clear that the death eligi-

bility rules are not merely restatements of the felony-murder

rule. Tison, 481 U.S. at 151.

There is simply no factual support whatsoever for any find-

ing that Dickens drove through the rest area to see that both

victims were dead and then drove on, leaving a still living vic-

tim, knowing that the victim might still be alive. Nor, of

course, according to the record, was there any other reason

Dickens might have driven through the rest stop while helping

Amaral make his escape. And even if we overlooked all the

contrary facts and nevertheless concluded that Dickens did

drive through the rest stop in order to see that the victims

majority instead holds that “the Arizona Supreme Court did not ‘base’ its

decision” on that finding and that it was “not a dispositive factor in th[e]

determination” that Dickens was recklessly indifferent. Maj. Op. at

8620-21 (emphasis added). It does so by deciding, without explanation,

that the critical factor was not that Dickens knew that one victim might be

alive, but rather that he “watched Amaral shoot the Bernsteins, but

decided to aid Amaral over the Bernsteins.” Maj. Op. at 8620. The major-

ity is clearly wrong. The Arizona Supreme Court did not find that Dickens

was recklessly indifferent because he “failed to render aid” to the Bern-

steins and instead aided Amaral. See Dickens, 926 P.2d at 490. In fact, the

Arizona Supreme Court did not mention Dickens’ decision to aid Amaral

at all in its reckless indifference discussion. Instead, the Arizona Supreme

Court made an explicit finding, albeit an unreasonable one, that Dickens

failed to aid the Bernsteins knowing that one victim might be alive. See

id. It clearly relied on that finding to determine beyond a reasonable doubt

that Dickens acted with reckless indifference to human life.

DICKENS v. RYAN 8653

were dead, then it is illogical, irrational and unreasonable to

say that he knew one victim might be alive and drove on,

leaving the victim in a seriously wounded state. If Dickens

took the time to drive through the rest stop right after the mur-

ders to make certain both victims were dead, and he thought

that one of the victims was still living, in that unlikely

instance, he most certainly would have done something to

ensure that the living victim failed to survive rather than driv-

ing on satisfied with the knowledge that one victim might still

be alive. Thus, even considering the state’s whole range of

factually unsupported possibilities, the only reasonable con-

clusion is that Dickens drove off without entering the rest stop

area or without knowing the fate of the victims or at most

drove off believing that both were dead, not that one victim

might still be alive. Accordingly, the wholly factually unsup-

ported rest stop drive through theory cannot support the con-

clusion that Dickens’ conduct demonstrated reckless

indifference to human life.10

In addition to the findings by the Arizona Supreme Court

in connection with the reckless indifference determination, the

majority improperly relies on the findings of the state trial

court to support its conclusion that Dickens acted with reck-

less indifference to human life, including findings that Amaral

had beaten up a nurse, had a long history of carrying guns,

twice threatened Dickens by pointing the gun at his head, and

bragged about being involved in other murders. Maj. Op. at

8616-17. Nowhere does the Arizona Supreme Court refer to

10

There is no other suggestion in the record that Dickens somehow

became aware of the physical condition of either of the Bernsteins. Nor do

I read the Arizona Supreme Court decision as holding that a getaway

driver who does not abandon his assignment to help the perpetrator or per-

petrators of a robbery flee the scene so that he may determine the physical

state of the victim or victims of a shooting that occurs during an armed

robbery, and provide medical aid when desirable to the victims, has dem-

onstrated reckless indifference to human life such that he has become one

of the “most dangerous and inhumane of all” murderers. Such would be

a remarkable ruling indeed.

8654 DICKENS v. RYAN

any of these findings, including in its reckless indifference

determination. And, as I noted above, it is well established

that “we look to the last reasoned state-court decision.” Lopez,

630 F.3d at 1202 (internal quotation marks and citation omit-

ted). Even if the Arizona Supreme Court had adopted those

findings, they would not support the conclusion that Dickens

knew that there was “a grave risk of death” or that the “natu-

ral” result of the robbery would be the death of the Bernsteins.

Tison, 481 U.S. at 157-58 (emphasis added). Anger control

problems in no way indicate that an individual will engage in

murder. Nor does having beaten someone up on one occasion

suggest that the individual will commit a murder. Carrying a

gun, which is a Second Amendment right, also cannot legally

lead to a finding that the individual is likely to murder some-

one; if it could, half or even more of the people in some of

our states would qualify as likely murderers. While the trial

court noted that Amaral had bragged to Dickens about com-

mitting other murders, it did not find that Dickens believed

this statement, and it is clear that, as Dickens testified, he

didn’t. In fact, as Dickens testified, when Amaral was first

brought to Oak Grove Dickens was told that Amaral was a

“chronic liar” with some “wild stories.” The trial court also

noted that Amaral had scared Dickens by pointing a gun at

him “a day or two prior to the murders.” (emphasis added).

Pointing a gun and not shooting someone is a far cry from

being a likely murderer. Even if these additional facts did sug-

gest that Dickens could anticipate or foresee the possibility of

violence, they do not suggest that Dickens knowingly

engaged in criminal activity known to carry a grave risk of

death. As noted above, the Supreme Court has rejected fore-

seeability as the test for reckless indifference because such

test would amount to “little more than a restatement of the

felony-murder rule itself.” Tison, 481 U.S. at 151.

***

In sum, the Arizona Supreme Court found that Dickens

acted with reckless indifference to human life because he was

DICKENS v. RYAN 8655

a major participant in the robbery of the Bernsteins, had prior

felony convictions for forgery and lewd and lascivious acts

with a child under 14 years of age, knew that Amaral had a

violent and explosive temper, and “failed to render aid know-

ing that one victim might not be dead.” Dickens, 926 P.2d at

490. These findings, as I have explained above, “involved an

unreasonable application of[ ] clearly established Federal law,

as determined by the Supreme Court of the United States” in

Enmund and Tison, and are “based on an unreasonable deter-

mination of the facts in light of the evidence presented in the

State court proceeding,” 28 U.S.C. § 2254(d).

The Supreme Court made clear in Tison that the reckless

indifference standard helps to “definitively distinguish[ ] the

most culpable and dangerous of murderers.” Id. at 157. Dick-

ens is certainly neither. Even given the gruesome facts in

Tison, the Supreme Court did not find that the brothers had

been recklessly indifferent. Rather, it sent the case back to the

state courts to make that determination, and the Tison brothers

ultimately received life sentences. Dickens did not act with

the “highly culpable mental state” required to establish death

eligibility under Enmund and Tison, see id at 157-58, and cer-

tainly not because the individual with whom he planned the

armed robbery was a young man who he knew had an anger

problem.

IV. Conclusion

For the reasons set out above, the Arizona Supreme Court

determination that Dickens was a major participant in the rob-

bery of the Bernsteins and acted with reckless indifference to

human life “involved an unreasonable application” of the

Supreme Court decisions in Enmund and Tison, and “was

based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding.” 28

U.S.C. § 2254(d). Dickens was the getaway driver to an

armed robbery, did not play an “active” and “substantial” role

in the commission of the underlying crime, see Kennedy, 554

8656 DICKENS v. RYAN

U.S. at 421, and was not present at the scene when Amaral

shot the Bernsteins. Nor did Dickens “knowingly engag[e] in

criminal activities known to carry a grave risk of death” sim-

ply because he was a participant in an armed robbery. Tison,

481 U.S. at 157. The majority reaches the contrary result only

by misconstruing the record and engaging in improper and

unreasonable factfinding. It is clear, however, that Dickens is

not one of the “most culpable and dangerous of murderers”

such that he should be put to death by the State of Arizona.

Because the Arizona Supreme Court’s decision that Dick-

ens was a major participant in the armed robbery and that he

acted with reckless indifference constitutes an unreasonable

application of established Supreme Court law and is based on

an unreasonable determination of the facts in the record, I dis-

sent from the denial of the writ.11

11

Because I would grant habeas relief on the Enmund and Tison claim,

I would not reach any of the other issues the majority decides in the opin-

ion or in the accompanying memorandum disposition that relate to the

imposition of the death penalty.