Michael Apelt v. Charles Ryan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL APELT, Nos. 15-99013

Petitioner-Appellee/ 15-99015

Cross-Appellant,

D.C. No.

v. 2:98-cv-00882-ROS

CHARLES L. RYAN,

Respondent-Appellant/ OPINION

Cross-Appellee.

Appeal from the United States District Court

for the District of Arizona

Roslyn O. Silver, District Judge, Presiding

Argued and Submitted August 9, 2017

Pasadena, California

Filed December 28, 2017

Before: Jerome Farris, Consuelo M. Callahan,

and John B. Owens, Circuit Judges.

Opinion by Judge Callahan

2 APELT V. RYAN

SUMMARY*

Habeas Corpus / Death Penalty

The panel vacated the district court’s judgment granting

a writ of habeas corpus on Michael Apelt’s claim of

ineffective assistance of counsel (IAC) at sentencing, and

affirmed the district court’s denial of relief on Apelt’s other

claims, in the state of Arizona’s appeal and Apelt’s cross

appeal arising from his habeas corpus petition challenging his

conviction and death sentence for first-degree murder.

The panel held that while the state court’s alternate ruling

on the merits of the IAC claims does not allow a federal court

to ignore the state court’s finding of procedural default, it also

does not bar a federal court from considering whether there

is cause and prejudice excusing the default under Martinez v.

Ryan, 566 U.S. 1 (2012), and Coleman v. Thompson, 501

U.S. 722 (1991). The panel held that counsel’s performance

on Apelt’s first post-conviction petition was sufficiently

deficient to provide cause for Apelt’s default. The panel

agreed with the district court that Apelt was denied effective

assistance of counsel at sentencing, but concluded that the

state courts’ determination that counsel’s deficient

performance at sentencing was not prejudicial was not

unreasonable. The panel therefore vacated the district court’s

grant of the writ.

Regarding Apelt’s certified claims, the panel held (1) that

Apelt has not shown that the state court’s denial of funding to

*

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

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

APELT V. RYAN 3

investigate mitigation violated his constitutional rights; and

(2) that Apelt has not met his burden of showing that the state

court’s denial of his mental-disability claim under Atkins v.

Virginia, 536 U.S. 304 (2002), is an unreasonable

determination of the facts in light of the evidence presented.

The panel certified for appeal Apelt’s claims (1) that the

Arizona Supreme Court applied an unconstitutional causal

connection requirement to his mitigation evidence; and (2)

that counsel was ineffective at trial and sentencing for failing

to challenge Apelt’s competency. The panel concluded that

both claims are not persuasive.

COUNSEL

Kristina B. Reeves (argued), Assistant Attorney General,

Capital Litigation Section; Lacey Stover Gard, Chief

Counsel; Mark Brnovich, Attorney General; Office of the

Attorney General, Phoenix, Arizona; for Respondent-

Appellant/Cross-Appellee.

Emily Katherine Skinner (argued), Arizona Capital

Representation Project, Tucson, Arizona; Dana Carpenter,

Phoenix, Arizona; for Petitioner-Appellee/Cross-Appellant.

4 APELT V. RYAN

OPINION

CALLAHAN, Circuit Judge:

In December 1988, Michael Apelt (“Apelt”) and his

brother, Rudi, murdered Apelt’s wife of less than two months

in order to collect on her life insurance policy. The brothers

were tried separately, convicted of first degree murder, and

given death sentences. Having obtained no relief in the

Arizona courts, Apelt filed a habeas petition in the United

States District Court for the District of Arizona. After a stay

of proceedings to allow Apelt to advance a claim in the state

courts based on the Supreme Court’s decision in Atkins v.

Virginia, 536 U.S. 304 (2002), the district court granted the

writ on one issue, ineffective assistance of counsel (“IAC”)

at sentencing, and denied relief on all of Apelt’s other claims.

In No. 15-99013, the state of Arizona appeals,

challenging the district court’s jurisdiction to reach the merits

of Apelt’s IAC claim, as well as its grant of the writ. In No.

15-99015, Apelt appeals two claims certified by the district

court: the denial in state court of funding to investigate

mitigating evidence, and the determination that Apelt had

failed to show that he was intellectually disabled under

Atkins. In addition, Apelt raises two issues that were not

certified by the district court: whether the Arizona Supreme

Court applied an unconstitutional causal nexus requirement

in reviewing Apelt’s sentence; and whether trial counsel was

ineffective in failing to challenge Apelt’s competency to be

tried and sentenced.

Apelt’s habeas petition is subject to review under the

Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), 28 U.S.C. § 2254(d). See Mann v. Ryan,

APELT V. RYAN 5

828 F.3d 1143, 1151 (9th Cir. 2016) (en banc). We first

determine that federal court review was not procedurally

barred. We then vacate the district court’s grant of relief

because we cannot find the Arizona Supreme Court’s

determination that Apelt’s counsel’s deficient performance at

sentencing was not prejudicial to be clearly unreasonable.

See Davis v. Ayala, 135 S. Ct. 2187, 2199 (2015); Cullen v.

Pinholster, 563 U.S. 170, 189 (2011). We affirm the district

court’s denial of relief on Apelt’s claims of inadequate

funding to investigate mitigating evidence, and mental

disability pursuant to Atkins, 536 U.S. 304. We grant the

certificate of appealability for Apelt’s claims of an

application of an unconstitutional causal nexus standard by

the Arizona Supreme Court and for ineffective assistance of

counsel in failing to challenge Apelt’s competency to stand

trial, and we deny those claims on the merits.

I.

A. The Facts

Michael Apelt, the youngest of seven siblings, was born

in August 1963 in Germany. He came to the United States in

the late summer of 1988. The underlying facts leading to

Apelt’s conviction were fairly and fully set forth in the

Arizona Supreme Court’s opinion, State v. Apelt, 176 Ariz.

349, 861 P.2d 634 (Ariz. 1993), as follows:

In August 1988, the defendant, his brother

Rudi Apelt, Rudi’s wife Susanne, and

Michael’s ex-girlfriend Anke Dorn, all

German citizens, traveled to San Diego,

California. The defendant and his brother met

two women in a nightclub. Cheryl Rubenstein

6 APELT V. RYAN

and Trudy Waters lived in Phoenix and were

in San Diego to cater a party for Cheryl’s

brother. They spent the evening chatting with

the Apelts. Because Michael’s English was

not very good and Rudi’s was worse,

communication was difficult until they found

an interpreter among the other patrons of the

bar. The Apelts first claimed to be wind

surfing board manufacturers, then Mercedes

importers. Rudi denied being married.

Before leaving, the women gave the Apelts

their addresses and phone numbers.

Approximately two weeks later the Apelts

flew to Phoenix. Cheryl picked them up at the

airport and took them to a hotel in Mesa.

They soon moved to a nearby Motel 6, but

pretended to be staying at the Holiday Inn, a

more expensive hotel nearby. After a couple

of weeks, they flew back to San Diego, picked

up Anke Dorn and returned to Phoenix.

Susanne, Rudi’s wife, returned to Germany.

Over the next month the brothers met and

“conned” a series of women, spinning tales of

wealth and intrigue. The immediate goal of at

least some of their ruses was to get money and

other assistance. They were looking for a

woman to marry Michael.

On October 6, the Apelts met Annette Clay at

Bobby McGee’s, a bar and restaurant. Rudi

claimed to be an international banker.

Annette gave him her phone number, and

APELT V. RYAN 7

Rudi called her on Saturday. She met the

Apelts at Bobby McGee’s that evening, and

introduced them to her friends, Cindy and

Kathy Monkman. Michael immediately

focused on Cindy and spent the evening

dancing and talking with her. He said several

times “you’re the woman I want to marry”

and “me you marry.” He and Rudi claimed to

be computer and banking experts.

During the next week Annette and Cindy saw

the Apelts several times. When Cindy noticed

that after the Apelts visited her apartment she

was missing over $100 in cash, she and

Annette began to get suspicious. They

questioned whether the Apelts were actually

staying at the Holiday Inn and, by calling

several hotels in the area, discovered that the

Apelts were registered at the Motel 6.

When confronted with this information, the

Apelts insisted that there was some mistake.

That evening, after dropping the Apelts at the

Holiday Inn, the women located their room at

the Motel 6 and discovered Anke Dorn.

The next day, the Apelts were furious and

claimed that the women’s snooping destroyed

their “high security clearance” and cost them

their jobs and their work visas. They

explained that Anke was a family friend

whose husband was in the hospital. The

women were apologetic and suggested various

ways they could help the Apelts get their jobs

8 APELT V. RYAN

back or find new jobs, but the Apelts refused

these suggestions. Finally, in frustration,

Annette exclaimed “what do you want us to

do, marry you?” The Apelts replied, “yes.”

Rudi moved into Annette’s apartment and

Michael moved into Cindy’s. Annette

discussed with Rudi the possibility of a sham

marriage so that he could work in the United

States, but Rudi insisted that he loved her and

that if they married it would be forever. He

also insisted that they keep the marriage

secret. Rudi had been staying with Annette

less than a week when Annette discovered

that the story regarding Anke was a lie.

Annette asked Rudi to leave and did not see

him again. Rudi and Anke moved into a

motel. Thereafter, Michael told Annette

several times that Rudi had returned to

Germany. Cindy also believed that Rudi and

Anke had left the country.

On October 28, 1988, Cindy and Michael

were married in Las Vegas. They did not tell

anyone about the marriage. On November 7,

at Michael’s suggestion, they consulted Doug

Ramsey about a million dollar life insurance

policy. Cindy believed Michael was wealthy

and that purchasing large insurance policies

was a customary investment practice for

couples in Germany. Ramsey informed them

that they could not get such a large policy but

that they might qualify for a $400,000 policy.

APELT V. RYAN 9

They filled out an application, and Cindy

wrote a check for the first month’s premium.

Around this time, and continuing up to the

time of the murder, the Apelts and Anke

began a series of shopping sprees. They

looked at expensive Piaget and Rolex

watches, at one time contracting to buy three

for a total price of approximately $130,000.

They looked at expensive boats and cars,

arranging to buy two Jaguars for $144,000

and two Toyota Supras for about $66,000.

Their pattern was to fill out a purchase

contract, make a nominal down-payment with

assurances that they would pay cash upon

receiving money from sources in Germany,

and then never return. They drove to the

stores and car dealers in Cindy’s Volkswagen.

During one of the first shopping trips, Michael

told Anke that if Cindy died an unnatural

death, he would be rich. By this time they

were without funds. Michael paid most of

Rudi’s and Anke’s expenses with Cindy’s

money, even though Cindy’s income from her

two part-time jobs was very modest. She

withdrew over $4,000 from an account from

October through December 1988.

On November 25, Ramsey informed Michael

and Cindy that they could only get a $100,000

life insurance policy. They executed a change

form and, on November 30, applied for a

$300,000 policy from another company.

10 APELT V. RYAN

Early in December, Rudi and Anke reserved

a rental car for December 9, specifically

requesting one with a large trunk. Around

this time, Ramsey informed Cindy that the

second insurance company would not approve

their application for a $300,000 policy until it

had more background and financial

information. Cindy provided the needed

information, and Ramsey resubmitted the

application. In the interim, Rudi cancelled the

car reservation.

On December 22, 1988, Ramsey informed

Cindy and Michael that the $300,000 policy

was approved and would be effective after

Cindy gave him a check for the premium. He

also delivered the $100,000 policy.

On the morning of December 23, Cindy and

Michael took the Volkswagen in for some

repairs and rented a Subaru. Cindy was busy

getting ready to leave the next day for Illinois

with her sister Kathy. She made plans to meet

her friend Annette for dinner at 8:00 p.m. to

exchange gifts. She also planned to bring

along Maria, a young woman she had been

counseling.

The Apelts also were busy. Michael took

Rudi and Anke to a rental agency where they

rented the car with the large trunk that they

had originally reserved for December 9. Late

in the afternoon, Michael returned to Rudi’s

and Anke’s motel room. Michael told them

APELT V. RYAN 11

that they could have a “lot of money” if he

killed Cindy. They agreed to kill Cindy that

evening. They made plans to meet in front of

a German restaurant and proceed from there

to the desert, where Cindy would be killed.

Michael stated that he would bring Cindy and

make sure she could not see where they were

going.

Cindy spoke with her father on the phone and

then had a telephone conversation with Maria

from 6:50 p.m. to 7:00 p.m. confirming that

she and Michael would pick her up at

7:45 p.m. Maria heard Michael arriving in the

background.

Anke and Rudi drove their rented car to the

German restaurant at around 7:00 p.m. and

waited. Michael drove by in the Subaru

approximately 15 minutes later, but Anke did

not see Cindy in the car. Anke and Rudi

followed Michael on Main street toward a

desert area where they had earlier practiced

shooting a crossbow. Rudi turned off the road

when he reached this location, but Michael

continued on. Rudi drove around in the desert

for a while before spotting Michael’s car. He

drove toward it, stopped some distance away,

and got out of the car after ordering Anke to

remain. He returned to the car after about five

minutes and both he and Michael drove to the

motel where Anke and Rudi were staying.

The brothers showered and changed clothes.

12 APELT V. RYAN

The Apelts and Anke met at Bobby McGee’s

at 10:30 p.m. and asked for a table for four.

After waiting a while, ostensibly for

Michael’s wife, they ordered dinner. Michael

and Rudi discussed their alibi. They had

several drinks after dinner in the lounge area

and then went to another nightclub. Michael

arrived home at around 2:00 a.m. on

December 24th after leaving Rudi and Anke

at their motel.

There were many calls on the answering

machine from Annette, Kathy, and Maria, all

of whom were worried because Cindy failed

to show up for dinner or call Kathy as

planned. Annette called again and spoke with

Michael, who told her that Cindy left the

house at around 7:00 p.m. after receiving a

phone call from an angry man. He claimed

that she said she had to meet someone and

would meet Michael at Bobby McGee’s at

10:00 p.m. Annette came over to the

apartment and called the police. She noticed

that Cindy’s purse was still in the apartment.

A police officer came and spoke with Michael

and Annette. Michael told his story to the

officer.

Cindy’s body was found in the early afternoon

of December 24th. She had been stabbed

once in the lower chest and four times in the

back. Her throat had been slashed so deeply

that her head was nearly severed from her

body. There were a tremendous number of

APELT V. RYAN 13

bruises on her face and body. Police found a

length of nylon cord and a blood soaked beach

towel near her.

There were many tire tracks in the area,

although only two were clear enough to be of

use. These were consistent with the tires on

the car driven by Anke and Rudi. There was

also a fairly good shoe impression near the

body and a partial shoe print on the victim’s

face as though the murderer had kicked or

stepped on her head. These were later found

to be consistent with a particular style of

Reebok tennis shoes.

Anke and Rudi were interviewed later that

day and corroborated Michael’s story. They

claimed they saw Cindy leaving the apartment

at 7:00 p.m. as they were arriving, at which

time she promised to meet them later at

Bobby McGee’s. When questioned, Michael

denied owning tennis shoes.

Late on the evening of December 25, Rudi

and Anke accompanied Michael as he drove

the rented Subaru around the Salt River

bottom. He drove erratically, making hard

turns and slamming on the brakes in an effort

to change the tread of the tires so they could

not be linked to the murder scene. Two of the

tires had to be replaced after the car was

returned to the rental agency because they had

flat spots caused by his driving.

14 APELT V. RYAN

Michael borrowed some money, using the

insurance policy as collateral, and the

threesome flew to Illinois for Cindy’s funeral

on December 31st. Although Michael cried at

the funeral, Kathy saw him laughing and

being jovial as he drove away after the

service. That evening, Michael told Anke that

Cindy had signed her own death warrant when

she signed the insurance papers, but he

regretted killing her.

The Apelts and Anke returned to Phoenix on

January 2nd. The next morning they flew to

Los Angeles and paid a homeless man $20 to

record the following message over the phone

and onto Cindy’s answering machine:

Hear what I have to talk. I

have cut through the throat of

your wife and I stabbed and

more frequently in the

stomach in the back with a

knife. If I don’t get my stuff,

your girlfriend is next and then

your brother and last it is you.

Do it now, if not, you see what

happens. My eyes are

everywhere.

They then returned to Phoenix. Michael

contacted Detective Davis, a police officer

who spoke fluent German, and asked him to

translate the message. Detective Davis

listened to the message over the phone and

APELT V. RYAN 15

instructed the Apelts to bring the tape to the

police station the next day.

The police had discovered the insurance

policy and identified Michael as a possible

suspect in Cindy’s murder. The bogus taped

threat confirmed their suspicions and, fearing

that Anke or the Apelts might leave the

country, the police arranged to have a

surveillance team watch them on the night of

January 5. Eleven officers were deployed

around the apartment complex at 5:30 p.m.

Shortly after 8:30 p.m. one of the officers

knocked on the Apelt’s [sic] door to make

sure they were home. When Michael

answered the door, the officer asked for a

fictitious person and was told he had the

wrong apartment. Immediately after this, Rudi

and Michael called the police and reported

that three tall black men had just appeared at

their door and threatened them. The

surveillance team was contacted, and they

confirmed that this had not occurred.

Detective Davis told the Apelts and Anke to

come to the police station the next day to

make composite sketches of their assailants.

Accordingly, on January 6th, Anke and the

Apelts went to the police station. The police

spoke with Michael and Rudi individually and

played along with them by preparing artist’s

sketches. After leaving Anke in the lobby for

a couple of hours, the police began

interrogating her. They urged her to tell the

16 APELT V. RYAN

truth. They threatened her with prosecution,

promised her immunity in exchange for her

confession, and showed her photographs of

Cindy’s body in an appeal to her conscience.

Anke confessed and the Apelts were arrested.

On January 9th, the police searched Cindy’s

apartment pursuant to a warrant. They seized

a number of items, including the Apelts’

shoes, the crossbow, and business cards that

led the police to some of the jewelry stores

and car dealerships that the Apelts visited on

their shopping sprees. They also seized two

rolls of film that contained pictures of

Michael wearing tennis shoes with tread

matching the footprint and impression left at

the murder scene.

While the brothers were in jail, Anke wrote to

Rudi several times. These letters, which

contained various incriminating statements

reflecting Anke’s version of the events

surrounding the murder, were seized pursuant

to two search warrants.

Michael sent Rudi a note in German that,

translated, stated in part:

I have a guy who is getting out

in two-four days and then

we’ll be free in one to two

weeks. It won’t matter if the

police have anything or not.

We’re in jail and won't be able

APELT V. RYAN 17

to have done that, so don’t do

anything, okay! Because

when a woman is dead, the

same thing will have

happened, we’ll be free and

I’ll have the money because

the police won’t be able to do

anything.

The note was intercepted by a fellow inmate

and turned over to the police. After the police

interviewed this inmate, they obtained and

executed a search warrant of Michael’s,

Rudi’s, and adjoining cells. Police seized

other communications between the brothers,

several of which were introduced at trial.

Michael and Rudi were tried separately. Anke

was granted immunity from prosecution in

exchange for her testimony at both trials.

861 P.2d at 638–42.

B. The Trial and Sentencing

Apelt was charged with first degree murder and

conspiracy to commit first degree murder, and attorney

Michael Villarreal was appointed to represent Apelt. Apelt

was tried in April 1990, testified in his own defense, and was

convicted of both murder and conspiracy to commit murder.

Apelt, 861 P.2d 634.

A presentence hearing was set for August 7, 1990. On

June 8, Villarreal filed a motion for travel funds for him to go

18 APELT V. RYAN

to Germany to investigate possible mitigating evidence. He

told the court:

Basically, Your Honor, what I need to do - -

and I think the Court is aware my partner

went to Germany at our expense last year, as

far as travel, not the hours worked, and the

reason for that trip was to contact - - basically,

we are building up a character defense, and I

was looking into some areas of my client

having been in some type of psychological

institution early in his life. We gathered - -

we learned other information. We did not get

any information we used at trial as far as good

character witnesses or any rule - - we didn’t

file any Rule 11 hearing nor anything of that

sort based on what we learned over there at

that time.

However, Your Honor, I think it’s important

and necessary that we travel at this time, that

I travel this time to Germany to locate and

contact witnesses there. Mr. Apelt has had his

entire life in Germany except for the year and

a half now that we know he was here in the

United States, and there is also the issue of

that psychological hospitalization that he

under went, and I want to explore that area.

Also, Your Honor, there are some other

matters that came to light in his past regarding

a difficult child birth, things of this sort that I

need to check into, and I would ask

permission to travel to Germany. I believe the

airfare right now, going only on what I see in

APELT V. RYAN 19

the newspaper, Your Honor, is somewhere

around $800.00 round trip to Dusseldorf. I

think that’s out of Los Angeles, I’m not sure.

I also filed a companion motion for an

interpreter. My partner, who went on that

trip, found herself at a great disadvantage

traveling in Germany. She, like myself, does

not understand a word of German, and we

thought family members would be able to

interpret for us. It just didn’t work out. Their

English wasn’t good enough. Other people

who they thought might be able to help,

friends and whatnot who would be able to

help with interpreting weren’t available. I

understand they have their own lives to lead,

have their own jobs and whatnot. So if I do

go, Your Honor, I am going to need an

interpreter. I need someone so there is no

problem, no delay and I can understand and I

can make myself understood to the people I

am talking to. I am going on that $50.00

based on what our interpreter believes she

believes is the going rate over there. I don’t

know what it is, Your Honor.

The prosecutor interjected that perhaps it would be more

efficient and economical to hire an investigator in Germany.

Villarreal responded:

I do have leads on what I’m looking for, Your

Honor. I’m not just going over there on a

fishing expedition. I have also gone through

the consulate here. I have learned through the

20 APELT V. RYAN

consulate in Los Angeles that they are not

going to be much help in this case. The

German government’s position in these

matters, and as I understand from the

consulate and a Mr. Fisher I have spoken to in

Los Angeles, they let the German citizen go

through the entire process, all the way through

to the ending of appeals, actually serving of

the sentence or in this case if my client were

to receive the death penalty, the possibility of

the impending death penalty. At that point the

German government would take a position.

They do have apparently a very strong anti-

death penalty position in their country,

because they don’t have the death penalty in

their country and they don’t like it when other

countries impose the death penalty on their

citizens, but my understanding is they keep

their hands off and they let the other country

take care of the crime and punishment, and

then only at that point they take the position

whether or not they will assist in anyway or

whatever help the German government feels

it needs to make. So I’ve gotten no help from

the German government. I was hoping at the

beginning of this case that they would be

more cooperative. I believe Ms. Hughes

mentioned a year or so ago when she went to

Germany she didn’t get a whole lot of

cooperation other than the police department

was a little cooperative to some degree, but

that was about it.

APELT V. RYAN 21

The trial judge commented that “this has been a very

expensive case to this point in time, and I am concerned about

when it is the defendant has the right to have all these things

furnished to him at no cost.” The judge noted that the costs

had already exceeded $200,000.00. The court gave Villarreal

a week to submit a statement, “a verification as to those items

that you feel that your trip to Germany is a necessity for.”

Villarreal did not submit such a statement. Instead, at the

August 7, 1990 hearing, he sought a continuance and again

argued that he needed to undertake an investigation in

Germany.1 Arizona objected to a further continuance,

arguing that the court had “indulged every whim of this

defendant and his counsel in allowing him to present an

adequate defense and fully investigate this case.” The

prosecutor further noted that Villarreal had provided some

documents that he acquired through a German lawyer and

through Amnesty International. Villarreal denied that either

the attorney or Amnesty International had been of any help.2

1

Citing a booklet by the Prisoners Defense Committee, and published

by Washington and Lee School of Law, Villarreal listed the types of

documentary evidence that he wanted to investigate (i.e., birth records,

school records, mental health records), as well as the types of people he

wanted to interview (i.e., relatives, teachers, employers).

2

Villarreal stated:

[T]he attorney from Germany never contacted me.

What he sent I never knew until it came to the

newspaper, evidently the Phoenix Gazette, and then

somehow it got to the prosecutor and who then sent it

to me. That’s how I got those records. Amnesty

International did not do anything in this case, except

they were contacted by Mrs. Schmitt [Apelt’s mother]

at the last minute regarding the instructions I had given

22 APELT V. RYAN

The trial court denied Villarreal’s motion to continue, and

proceeded with the presentencing hearing. The prosecutor

indicated that she would rely on the testimony presented

during the course of the trial and asserted three aggravating

circumstances: (1) Apelt committed the crime for pecuniary

gain; (2) the crime was heinous, cruel and depraved; and (3)

Apelt procured the assistance of another by promise of

payment.

The court then asked Villarreal for whatever evidence he

would proffer in mitigation. He offered eight exhibits that he

had received the day before through fax and overnight mail.3

her on the phone. They corrected her confusion. What

they did is give her advice as to what to look for. She

found the records. All they did was type the printed

letters that had been sent to me. They typed them so it

would be easy for me to read them or my interpreter to

read the German, and then they faxed one set of

records. They sent through overnight mail - - they sent

it all to New York. One set they sent by overnight

mail, the other set they faxed. They had no part in

investigating this case or having anything to do with the

case.

3

The district court described these documents as follows:

1. A letter from Apelt’s brother disputing that Apelt

could have been involved in the murder;

2. A letter from one of Apelt’s friends stating Apelt

had been a “good and honest friend”;

3. A letter from Apelt’s uncle stating he had known

Apelt since childhood and Apelt had been raised to

“become [a] good human being[]”;

4. A letter from Apelt’s mother stating in part, “Even

APELT V. RYAN 23

After receiving the exhibits, which had just been translated

into English the night before, the court took a recess to allow

the prosecutor to review the documents.

After the recess, the prosecution called Detective Ronald

Davis as a rebuttal witness. Davis spoke German, had been

involved in the investigation of Cindy’s murder, and had

traveled to Germany to investigate Apelt. He testified that he

spent an entire day with the Dusseldorf police who did not

show him Apelt’s criminal record, but read the record to

Davis.

Villarreal objected to Davis’ testimony as unsubstantiated

hearsay. The prosecutor responded that the letters submitted

by Villarreal were in the nature of character references and

Arizona was entitled to rebut them. The judge initially was

dubious of Arizona’s position, but was persuaded by

though my sons had contact with the law, they were

never capable of such violence. I can just say as their

mother, that they grew up normally.”;

5. A letter from Apelt’s sister stating “my brothers are

and were no angels but it takes a lot to commit such a

brutal crime” and “I do not believe that my brothers are

able to commit such a mine [sic] and brutal crime.”;

6. A letter from a doctor stating Apelt “was treated for

various illnesses” between August 1984 and July 1988;

7. A letter from a past employer stating Apelt’s

behavior from September 1984 to February 1987 was

“unobjectionable”; and

8. A certificate from the German military stating Apelt

had served from 1982 to 1983.

24 APELT V. RYAN

Arizona’s argument that the testimony was relevant to

whether the life sentence for conspiracy should run

consecutively or concurrently with the death penalty.

Davis then testified that Apelt had a felony conviction and

that Apelt’s former wife told him that Apelt had “been

involved in some sort of attack involving a knife with a

homosexual partner.” Davis reported that the former wife

also stated that Apelt was quite capable of committing murder

for money, and had asked her to donate one of her kidneys in

order for him to get money.

In her summation, the prosecutor, after noting the three

aggravating factors, argued that there were no mitigating

factors. She argued:

There are none of the factors that are so

frequently offered to avoid the death penalty,

such as poor childhood. This defendant

himself told the probation officer that he had

a normal childhood. There is no evidence of

any mental disease or defect such that might

mitigate his crime and call for leniency. In

fact, the medical records that were submitted

to the Court, albeit they are probable records

by people not qualified to give it, but his

family doctor seems to indicate that there was

no sign of any mental disease or defect.

In response, Villarreal first questioned whether there was

really evidence of intent for financial gain or that the crime

was particularly cruel, heinous, and depraved. He then

offered the following arguments in mitigation: (1) Apelt was

only 25 years old at the time of the crime; (2) there is

APELT V. RYAN 25

remorse; (3) he cooperated in the pre-sentence report; (4)

Apelt has recently found Christ; (5) there is a lack of a prior

record of any serious crime; (6) Apelt has an honorable

military discharge; (7) Apelt displayed good behavior at trial;

(8) Germany has a strong position against the death penalty;

and (9) some of the victims favored a life sentence.4

Villarreal also mentioned some of the areas of mitigation that

he had not been able to pursue, such as Apelt’s capacity to

appreciate wrongfulness of conduct, reports of

“hospitalization in a clinic, some type of psychiatric clinic,

emotional disturbance clinic of some sort in Germany,” and

possible low intelligence and lack of education. But, because

he could not travel to Germany, he was not able to obtain

such information.

On April 13, 1990, the trial judge imposed the death

sentence. Villarreal continued to represent Apelt on his direct

appeal.

C. Initial Post-Conviction Proceedings

Rudi was tried the week after Apelt and was sentenced

and convicted of first degree murder. On May 28, 1991,

Villarreal filed a post-conviction petition on behalf of Apelt.

The petition was based on the testimony of a Dr. DiMaio in

Rudi’s trial. The petition asserted:

The Testimony of Dr. DiMaio was clearly that

the murderer of Cynthia Apelt was right

4

Although Cindy’s parents asked the court to impose the death

penalty, two of Cindy’s close friends stated that they did not want the

death penalty, but wanted Apelt put away in prison where he can never get

out.

26 APELT V. RYAN

handed. Michael Apelt is left handed. The

testimony of Dr. DiMaio would have added

credibility to Michael Apelt’s testimony that

he did not kill his wife. It would also have

impeached the testimony of Anke Dorn that

Michael Apelt killed his wife.

The Superior Court of Pinal County denied the petition on

May 28, 1991. The Arizona Supreme Court then

consolidated the denial of the first post-conviction petition

with Apelt’s direct appeal.

The Arizona Supreme Court affirmed Apelt’s conviction

and sentence, rejecting a host of arguments advanced by

Villarreal. Apelt, 861 P.2d 634. Of greatest concern in this

federal habeas proceeding is the court’s treatment of Apelt’s

challenges to his sentence. The court characterized the first

challenge as whether “the trial court err[ed] by refusing to

fund a trip to Germany so defense counsel could look for

mitigating evidence.” Id. at 642. The court determined that

there was no error because a defendant must demonstrate how

the requested assistance would be beneficial and why it is

necessary for a fair trial, and Apelt had failed to make such a

showing. Id. at 651. The court noted that Villarreal failed to

file a statement showing why the proposed trip to Germany

was necessary, and that the adequacy of a showing is left to

the discretion of the trial judge. Id. The court commented

that counsel did not explain why psychological

hospitalization might be mitigating, or “why a difficult

APELT V. RYAN 27

childhood and lack of education would be mitigating.”5 Id. It

concluded that because Apelt “failed to show that helpful

evidence was available in Germany,” he had no right to

funding under the statute or the due process clause of the

Fourteenth Amendment. Id. at 652.

The Arizona Supreme Court addressed two questions

concerning the appropriateness of the death sentence: (1) did

the court err in finding three aggravating factors; and (2) did

the court err in “finding that there were no mitigating factors

sufficient to outweigh the aggravating factors.” Id. at 642.

The court found that there was more than sufficient evidence

to support each of the three aggravating elements. Id. at

652–53. It also found that the trial court had considered the

“mitigating” factors proffered by counsel and had not

imposed an impermissibly high burden or failed to weigh the

factors properly. Id. at 653. It independently reviewed the

5

The Arizona Supreme Court noted:

Defendant’s claims that he had a difficult childhood and

little education conflicted with his statements in the

presentence report that his childhood was fairly normal

and that he had the equivalent of a high school

education. Likewise, we cannot conclude that the

absence of records of the alleged psychological

hospitalization prejudiced defendant. He did not even

consult a psychiatrist to testify regarding his probable

psychological condition at the time of the murder.

Instead, he submitted a letter from a doctor in Germany

who stated that he had treated defendant for various

illnesses during the four years prior to the murder and

observed no psychological problems during that time.

Apelt, 861 P.2d at 651–52.

28 APELT V. RYAN

record and found three aggravating and no mitigating factors.6

Id. at 654.

As to the post-conviction petition, the court rejected

Apelt’s request for an evidentiary hearing, finding that Dr.

DiMaio’s testimony would not have changed the outcome of

the trial because it made no difference whether Apelt or Rudi

wielded the murder weapon. Id.

D. Apelt’s Second Post-Conviction Proceedings

On December 4, 1995, Apelt, now represented by new

counsel, filed an “amended petition for post-conviction

relief” in the Superior Court for the County of Pina (the

amended petition is generally referred to as the “PCR”). The

PCR raised ten issues, including assertions that Apelt was

denied effective assistance of counsel during the penalty

phase of his case, on direct appeal, and on his first post-

conviction petition. Many of the assertions were based on

newly discovered materials. The federal district court

described the materials as follows:

6

The court stated:

We have independently reviewed the record and agree

that the defendant failed to prove any mitigating factors

sufficient to call for leniency. He has failed to advance

any credible argument as to why some factors should be

considered mitigating at all. We note that it was in the

defendant’s own best interest to cooperate with the pre-

sentence report writer and behave well at trial.

Apelt, 861 P.2d at 653.

APELT V. RYAN 29

In support of these claims regarding

Villareal’s performance, PCR counsel pointed

out Villareal had been aware Apelt had been

hospitalized in Germany but Villareal “failed

to gather the records and background

information necessary for a thorough and

complete mental health evaluation.” Villareal

had also “failed to investigate, develop, and

present substantial mental health evidence”;

failed “to identify, locate and investigate

potential mitigation witnesses”; and “failed to

properly develop or present adequately expert

testimony.” PCR counsel further claimed

Villareal had failed to present evidence that

Apelt “came from a family background of

gross poverty, alcoholism and violence which

included emotional, physical and sexual

abuse”; that Apelt “has a history of mental

illness and has received psychiatric/

psychotherapeutic treatment in Germany”;

that Apelt “was in special education as a

child,” “suffered from a nervous disorder,”

and had attempted suicide “and that Apelt was

mentally, physically, and sexually abused by

older men throughout his childhood and

mentally disturbed while in school.”

These claims by PCR counsel were supported

by “a plethora of documents from Germany

obtained by . . . counsel through

correspondence.” The documents submitted

by PCR counsel included “a report on the

situation of the Apelt family,” prepared by the

Dusseldorf Industrial Welfare Organization.

30 APELT V. RYAN

The report was based on information provided

by Apelt’s mother and social worker who had

worked with the family when Apelt was a

child. The documents also included an

affidavit from Apelt’s mother. The report and

affidavit recounted what follows.

Apelt’s father was an abusive alcoholic who

beat his wife and children, including Apelt,

with an iron rod. Apelt’s father sexually

abused his wife and attempted to engage in

sexual misconduct against his daughters. As

a child, Apelt was sexually molested by older

men on two occasions. The first time was

when Apelt was seven. He was taken from

his yard and driven to a house where he was

forced to have intercourse. The second time

was when Apelt was thirteen. Apelt had been

walking home from school when he and a

friend were tricked into going into a cellar

where a man holding a knife forced Apelt to

have intercourse. The incidents left Apelt

“mentally disturbed.”

Apelt’s family was very poor while he was

growing up. The family of nine lived in a

five-bedroom apartment and his father did not

work on a regular basis. The family survived

on government support and his mother’s

earnings as a cleaning lady. The children

were forced to go to work at age fourteen. All

of the Apelt children “immediately after

reaching emancipation, left home in order to

APELT V. RYAN 31

escape the abusive, sexually abusive and

violent situations.”

Beyond the report from governmental agency

and affidavit from Apelt’s mother, PCR

counsel also submitted a medical report from

the Psychosomatic Clinic in Dusseldorf where

Apelt received in-patient treatment. That

medical report was from 1986 and it described

Apelt as suffering from “shortness of breath,

vertigo, and pain in the left arm.” The report

indicated that Apelt may have suffered

medical complications during his birth. The

report recounted that Apelt had attended

special education because he spoke with a

lisp.

Attached to the PCR was an affidavit from attorney

Villarreal.7 He stated that: (a) he “did not hire an investigator

in Germany to investigate any mitigation”; (b) he “did not file

a supplementary statement at the court’s request following

the denial of funds by the court for the trip to Germany”; (c)

“[a]ny lack of investigation or preparation during the penalty

phase of this case was not a tactical or strategic decision”; (d)

“Mr. Apelt did not take an active role in the development of

mitigation”; and (e) he “did not withhold any objections,

claims or defenses in order to gain a tactical or strategic

advantage.”

On January 23, 1996, Apelt filed a supplement to the PCR

asserting that he was entitled to an evidentiary hearing (a)

7

Apelt’s first attorney spells his last name “Villarreal,” but it is

sometimes spelled “Villareal” in the record.

32 APELT V. RYAN

pursuant to Ake v. Oklahoma, 470 U.S. 68 (1985), concerning

his constitutional right to state-funded expert assistance, and

(b) on whether his trial counsel was ineffective in failing to

thoroughly investigate material aspects of his case.

Arizona filed a comprehensive response to the PCR,

setting forth a detailed account of Apelt’s actions leading up

to the murder. It then argued that most of Apelt’s claims,

including his IAC claims, are precluded under Arizona Rule

of Criminal Procedure 32.2, which, in essence, provides that

a defendant may not raise an issue that was not raised but

could have been raised “at trial, on appeal, or in any previous

collateral proceeding. The response also asserted that

although Apelt’s claim of IAC by appellate counsel was not

precluded, Apelt had not alleged any specific misdeeds that

would overcome the deference due to counsel. The response

also denied that Apelt had alleged any colorable claim of

newly discovered material evidence.8 The evidence

concerning Apelt’s background could not be newly

discovered because it was within Apelt’s personal knowledge

and was not diligently presented. Arizona further argued that

Apelt cannot tie the evidence “to his cold-blooded

commission of the murder, and none is ‘positive’ character

mitigation—at most it seeks some sort of pity or sympathy,

which [Apelt] is not entitled to have considered in

mitigation.” The response also argued that there is no

8

Arizona argued that evidence that Anke Dorn lied in her testimony

was basically irrelevant because while she may have sugar coated her

involvement, the evidence overwhelmingly corroborates Apelt’s

involvement, and, in any event, Anke was in Germany and not available

to testify. As to Apelt’s claim that he wore a size 16 shoe and the shoe

print at the scene was a smaller size, Arizona argued that this issue was

fully litigated at the trial and Apelt had offered no newly, discovered

evidence.

APELT V. RYAN 33

possibility that the alleged newly discovered evidence would

have changed Apelt’s sentence because Apelt exaggerates

what is actually in the documents.

Arizona also argued in the alternative that Apelt’s claims

of IAC were meritless. Arizona asserted that, under

Strickland, there is a strong presumption that counsel

exercised reasonable professional judgment. Focusing on

counsel’s performance at sentencing, Arizona first noted that

Villarreal asked for funds to go to Germany but did not file a

verified statement as requested by the trial court. The State

argued that Villarreal did all he could, given the lack of any

mitigation in Apelt’s background. It argued that Apelt and

his attorneys “have had more than 5 years to cherry-pick

through [Apelt’s] past and dredge up mitigation, yet have

failed to present anything that would arguably warrant a

sentence less than death.”

On September 4, 1996, the Arizona Superior Court for

Pinal County denied Apelt’s PCR. It held that most of the

claims were precluded under Arizona’s Rules of Criminal

Procedure either because they had been adjudicated on direct

appeal or because they were not raised at trial, on appeal, or

in Apelt’s first post-conviction petition. This included most

of Apelt’s IAC contentions, except his claim of IAC in his

first post-conviction petition, which the court held was not

cognizable in the proceeding. Two of the court’s final three

paragraphs are particularly relevant. The court held:

The following claim is meritless because

Petitioner fails to make a showing that

counsel acted below objective standards of

reasonableness in deciding what claims to

raise on appeal and Petitioner fails to make a

34 APELT V. RYAN

showing that the Arizona Supreme Court’s

decision would have been any different:

Claim 10 (ineffective assistance of counsel on

direct appeal).

...

Alternatively, the Court finds that Petitioner’s

claim of ineffective assistance of counsel at

trial and sentencing fails to allege colorable

claims because Petitioner fails to make a

sufficient preliminary showing that counsel’s

performance fell below objective standards of

reasonableness, and fails to make a

preliminary showing that, in light of the

allegations, there exists a reasonable

probability that the result of the trial or

sentencing hearing would have been different.

Apelt filed a petition for review to the Arizona Supreme

Court, which summarily denied review on April 23, 1998.

E. Initial Proceedings in the District Court for

Arizona

Apelt filed his federal habeas petition in the United States

District Court for the District of Arizona in May 1998.

However, before the district court could resolve the petition,

the Supreme Court decided Atkins, 536 U.S. 304, holding that

the Eighth Amendment prohibits the execution of

APELT V. RYAN 35

intellectually disabled persons.9 Based on the possibility that

Atkins applied to Apelt, the district court stayed Apelt’s

sentencing-related claims to permit him to return to state

court and exhaust his Atkins claim. In the meantime, the

district court considered and denied Apelt’s conviction-

related claims.

F. The Atkins Proceedings in State Court

The superior court conducted an evidentiary hearing

regarding the Atkins claims by both Apelt and his brother,

Rudi, in April and May 2007. The superior court applied

A.R.S. § 13-753(K)(3), which, at that time, defined

intellectual disability as “a condition based on a mental

deficit that involves significant subaverage general

intellectual functioning, existing concurrently with significant

impairment in adaptive behavior, where onset of the

foregoing conditions occurred before the defendant reached

the age of eighteen.” The superior court found that Apelt met

none of the criteria:

based on the three IQ scores and the accepted

“margin of error for the tests administered,”

the Court is confronted with the following

ranges: 88 (German school), 56 to 66 (Ruff),

32 to 62 (or 50 to 80) (Kury). Based upon the

lack of evidence to support the marked

decrease in IQ score, and the experts’

opinions that the defendant was malingering,

9

When Atkins was decided, the term “mental retardation” was used

to describe what is now called “intellectual disability.” See Hall v.

Florida, 134 S. Ct. 1986, 1990 (2014) (“Previous opinions of this Court

have employed the term ‘mental retardation.’”).

36 APELT V. RYAN

the Court finds that the defendant has failed to

establish by even a preponderance of the

evidence that he suffers from significant

subaverage intellectual functioning.

As to the second criterion, adaptive behavior, the court

rejected the assessment of Apelt’s expert, Dr. Ruff, as

focused more on Apelt’s maladaptive behavior rather than his

ability to perform daily tasks. Reviewing Apelt’s adulthood,

the court noted that Apelt “has consistently displayed the

ability to engage in independent and self-directed thinking,

planning and conduct.” The court commented that Apelt had

“worked at various jobs, at least one for an extended time,

served in the military and was honorably discharged, married,

and lived independently.” It further observed that Apelt had

traveled to the United States and Mexico, and had learned

English “sufficiently to communicate and interact

appropriately with others, negotiated purchases of vehicles

and apartment leases, understood foreign currency exchange

rates, and obtained employment.” The court concluded that

Apelt “ha[d] not proved by even a preponderance of the

evidence that throughout his childhood and adult life he has

suffered from significant impairment in adaptive behavior in

meeting the standards of personal independence and social

responsibility expected of a person of his age and cultural

group.”

Finally, the superior court concluded that Apelt had failed

to prove by even a preponderance of the evidence the onset of

subaverage intelligence prior to reaching the age of eighteen.

In contrast, the superior court found that Rudi was

intellectually disabled and vacated his death sentence. Rudi’s

IQ was lower than Apelt’s IQ with test results ranging from

APELT V. RYAN 37

49 to 61. The court also found that Rudi exhibited

developmental disabilities from an early age, had been

“unable to attain gainful employment or function on his

own,” had been dismissed from military service after serving

for less than a year, had never lived alone, and depended on

Apelt to take care of him.

G. The District Court’s September 1, 2015 Order

Following the superior court’s denial of Apelt’s petition

for post-conviction relief based on Atkins, Apelt was allowed

to amend his federal habeas petition to raise an Atkins claim.

On September 1, 2015, the district court issued its order

granting Apelt relief on one issue and otherwise rejecting his

claims. The district court addressed the issues relevant to this

appeal in the following order.

1. Procedural Status of Claims

The district court recognized that a state prisoner must

exhaust his remedies in state court before filing a federal

habeas petition, and that, when a claim is procedurally

defaulted under state law, a federal court usually cannot reach

the merits of the claim. It reasoned that before 2012, a

procedural default would be excused only if the petitioner

demonstrated both cause and prejudice, but that Martinez v.

Ryan, 566 U.S. 1 (2012), set forth a new standard. Citing our

opinion in Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012),

the district court held that now a petitioner may overcome a

procedural default “by demonstrating two things: (1) ‘counsel

in the initial-review collateral proceeding, where the claim

should have been raised, was ineffective under the standards

of Strickland . . .’ and (2) ‘the underlying ineffective-

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

38 APELT V. RYAN

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

some merit.’”

Apelt asserted that his claims for IAC at sentencing

(Claim 12), for failure to challenge his competency to stand

trial (Claim 1-B), and for failure to challenge his competency

at sentencing (Claim 1-D), are excused under Martinez by

Villarreal’s ineffective performance on his first post-

conviction petition. Arizona made a two-fold response. It

argued that these claims were procedurally defaulted, but it

also argued that if the court were to find Martinez applicable,

the court would have to consider that the state court also

denied the claims on their merits. Accordingly, if the court

reached the merits, it should give deference to the state

court’s ruling and not review the IAC claims de novo. The

district court agreed that it had to “accept that the two claims

were resolved by the state court on their merits and review

their rejection under the deferential standard applicable to

Apelt’s other claims.”10

2. Claim 12 – IAC at Sentencing

The district court recognized that Apelt’s IAC claim was

governed by AEDPA and thus relief was only available if the

state court’s decision was an unreasonable application of

clearly established Federal law or an unreasonable

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

court acknowledged that relief was precluded as long as

“‘fairminded jurists could disagree’ on the correctness of the

state court’s decision,” Harrington v. Richter, 562 U.S. 86,

101 (2011), and that review was “limited to the record that

10

Apelt’s claim of incompetency at sentencing was not presented to

the state court.

APELT V. RYAN 39

was before the state court that adjudicated the claim on its

merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

Accordingly, the record could be expanded only once a

petitioner showed that there was no reasonable basis for the

state court denial of relief.

As Apelt alleged that Villarreal was ineffective because

he failed to present classic mitigating evidence about his

background and mental health, the district court stated that it

had to determine “whether there is any reasonable argument

that Villareal’s performance at sentencing met the well-

established constitutional minimum for effective assistance

of counsel.”

The district court recognized that, under AEDPA, the

Strickland standard was “doubly deferential.” Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009). Quoting Richter,

562 U.S. at 105, the district court stated that “the question is

not whether [Villarreal’s] actions were reasonable. The

question is whether there is any reasonable argument that

[Villarreal] satisfied Strickland’s deferential standard.” The

court further held that only the evidence presented to the state

court would be considered.11

Turning to the substantive law, the district court stated

that, in a capital case, counsel has an obligation to conduct a

thorough investigation of the defendant’s background.

11

The district court held that, pursuant to Johnson v. Williams,

568 U.S. 289, 297 n.1 (2013), it could consider evidence presented to the

Arizona Supreme Court, even though that court summarily denied review.

But it further commented that the “evidence presented only to the Arizona

Supreme Court is of little weight,” and, thus, “the result would be the

same even if the Court were to ignore that evidence.”

40 APELT V. RYAN

Williams v. Taylor, 529 U.S. 362, 396 (2000). The court

commented that although the exact contours of the obligation

will vary, counsel “should obtain readily available

documentary evidence such as school, employment, and

medical records, and obtain information about the defendant’s

character and background” (Robinson v. Schriro, 595 F.3d

1086, 1108–09 (9th Cir. 2010)); should make “inquiries into

social background and evidence of family abuse” (Summerlin

v. Schriro, 427 F.3d 623, 630 (9th Cir. 2005)); and should

review such evidence of mental impairment as might be

found in mental health records (Lambright v. Schriro,

490 F.3d 1103, 1117 (9th Cir. 2007) (per curiam)). The court

further noted that while an investigation typically begins with

the defendant’s interview, it cannot end there unless the

“defendant has given counsel reason to believe that pursuing

certain investigations would be fruitless or even harmful.”

Robinson, 595 F.3d at 1109 (quoting Strickland, 466 U.S. at

691).

The district court concluded:

Villareal clearly did not meet these

responsibilities. Based on the state court

record, Villareal did not collect records from

social service agencies, welfare agencies,

doctors, hospitals, or employers. Villareal did

not interview potential mitigation witnesses,

including Apelt’s family members, or consult

with any mental health experts. Villareal did

not obtain Apelt’s readily-available mental

health records from the Pinal County jail

which described Apelt receiving various

medications as well as Apelt’s placement on

suicide watch. And Villareal did not present

APELT V. RYAN 41

a single witness at the sentencing hearing.

This was deficient performance.

The district court explained that, in reaching its

conclusion, it had taken into consideration Villarreal’s

statement that Apelt did not actively participate in the

sentencing phase of trial. It found, however, that Apelt’s lack

of cooperation did not eliminate Villarreal’s duty to

investigate. See Hamilton v. Ayers, 583 F.3d 1100, 1118 (9th

Cir. 2009); and Landrigan v. Schriro, 441 F.3d 638 (9th Cir.

2006) (en banc), rev’d, 550 U.S. 465 (2007).

The court acknowledged that Villarreal’s investigation

was hampered by the need to obtain funding to travel to

Germany, but concluded that his performance was

nevertheless legally deficient. He failed to provide additional

information to the trial court, as invited by the court, and

offered no explanation for his failure. The court further noted

that “[i]t is telling that PCR counsel obtained voluminous

material regarding mitigation without traveling to Germany.”

The district court also rejected Arizona’s suggestion that

Villarreal’s conduct may have been strategic. It cited

Wiggins v. Smith, 539 U.S. 510, 527 (2003), and noted that,

because Villarreal “intended to seek information about

Apelt’s mental health, including his hospitalization in

Germany, . . . he knew it was material evidence and,

inexplicably, failed to pursue it.” The court added that

Villarreal “failed to present evidence of Apelt’s childhood

poverty and abuse—humanizing information that would have

been within the parameters of good character evidence,” and

that Villarreal admitted that there was “no strategic basis for

his failure to investigate or present more relevant mitigating

42 APELT V. RYAN

evidence.” The district court concluded that “[n]o fairminded

jurist could conclude Villareal’s performance was sufficient.”

The court also found that the deficient performance was

prejudicial: there was a reasonable probability that the result

of the proceeding would have been different absent

Villarreal’s deficient performance. See Strickland, 466 U.S.

at 694. Villarreal’s “case in mitigation contained no evidence

of Apelt’s alleged poverty, no evidence of childhood physical

abuse, no evidence of repeated childhood sexual abuse, and

no meaningful evidence of mental health problems.” Indeed,

the prosecutor stressed that Apelt had a normal childhood,

and Villarreal submitted a statement from Apelt’s mother that

he had had a normal childhood. The court concluded that

“the sentencing court was presented with a picture of Apelt’s

background that bore ‘no relation’ to the picture presented by

PCR counsel with apparently reliable evidence,” and the

“magnitude of the difference between the mitigating evidence

that was presented at sentencing and the evidence that could

have been presented through competent investigation is

sufficient to undermine confidence in the outcome.”

Arizona filed a motion for reconsideration, arguing that

(1) the court committed manifest error by applying Martinez

to excuse the procedural default of Claim 12, and (2) the

court “erred in its assessment of Strickland’s prejudice prong

by failing to reweigh the totality of the mitigating evidence

against the aggravating factors.” The district court rejected

the second argument, holding that it had taken “into account

the aggravating factors as well as the totality of the mitigating

evidence.” The court explained its rejection of the first

argument as follows:

APELT V. RYAN 43

the Court did not apply Martinez to excuse the

default but instead reviewed the state court’s

alternative merits ruling. The Court noted

Martinez, but only in the context of

reassessing its earlier determination that

Claim 12 was procedurally defaulted and

barred from federal review. The Court

concluded, citing Clabourne v. Ryan,

745 F.3d 362, 382 (9th Cir. 2014), that the

state court’s alternative merits ruling was

subject to review under § 2254(d).

In a footnote, the district court further noted that in Martinez,

“the Arizona Attorney General’s Office argued on remand

that the presence of an alternative merits ruling meant that

alternative ruling had to be reviewed under a deferential

standard.”

3. Claims 1-B & 1-D (Mental Competence at Trial and

Sentencing)

Apelt asserted that he was “severely mentally ill and

grossly overmedicated” when he was tried and that Villarreal

was ineffective in failing to challenge his competence. The

district court rejected this contention, noting that “co-counsel

traveled to Germany, in part to investigate Apelt’s placement

in a psychological institution” and did not find any evidence

to support a motion to determine competency. Moreover,

“the record does not support a finding that Apelt lacked a

rational and factual understanding of the proceedings or the

ability to consult with counsel.” Apelt was actively involved

in his defense and the trial proceedings. In addition, his trial

testimony revealed no traces of incompetence.

44 APELT V. RYAN

Furthermore, the district court determined that the fact

that Apelt was on medication did not mean that he was unable

to consult with his lawyer and understand the proceedings.

See United States v. Shan Wei Yu, 484 F.3d 979, 985 (8th Cir.

2007). Also, the facts that he had been placed on suicide

watch and had a history of mental health problems did not

show that he was incompetent to stand trial. The court stated:

“Apelt has failed to identify an instance in which he behaved

irrationally, appeared not to understand the proceedings, or

did not communicate effectively with Villarreal.” The district

court concluded that Apelt had not met his burden of showing

IAC in Villarreal’s failure to doubt his competency.

4. Claim 11 (Denial of Funds to Travel to Germany)

The district court reviewed the proceedings in the state

courts and concluded that the denial of Villarreal’s request for

funds to travel to Germany was not unreasonable. Despite

being given an opportunity to supplement his request,

Villarreal never offered any specific information to support

his request. Thus, he did not make a “threshold showing”

that the additional funds would be helpful. Williams v.

Stewart, 441 F.3d 1030, 1054 (9th Cir. 2006) (per curiam).

The court held that “[b]ecause Villareal offered only

‘undeveloped assertions’ in support of his request for funds

to travel to Germany,” the Arizona Supreme Court did not

unreasonably apply Caldwell v. Mississippi, 472 U.S. 320,

323 n.1 (1985), in denying this claim.

5. Claim 17 (failure to consider certain mitigating

evidence)

Apelt argued that the Arizona Supreme Court erred by

excluding from its consideration certain mitigating evidence

APELT V. RYAN 45

in violation of Tennard v. Dretke, 542 U.S. 274 (2004). The

district court rejected this claim, finding that both the Arizona

trial court and the Arizona Supreme Court considered all of

Apelt’s proffered mitigating factors.12

6. Claim 26 (intellectually disabled under Atkins)

The district court first noted that under Arizona law Apelt

bore the burden of proving intellectual disability by clear and

convincing evidence (A.R.S. § 13-753(G)), and that under

AEDPA, Apelt had to show that the state court’s decision was

an unreasonable application of Atkins or was based on an

unreasonable determination of the facts. Apelt focused on the

state court’s analysis of the evidence presented in the Atkins

proceedings, objecting to the determinations that he had

failed to show he had a subaverage intellect and had not

shown significant deficits in adaptive behavior.

Although Apelt’s experts, Dr. Kury and Dr. Ruff,

concluded that Apelt suffered from “Mild Mental

12

The district court commented:

Apelt focuses on the court’s statement that Apelt

“failed to advance any credible argument as to why

some factors should be considered mitigating at all.”

Apelt, 861 P.2d at 653–54. But that statement did not

refer to the entirety of Apelt’s mitigation evidence but

rather to Apelt’s argument that certain circumstances—

namely his cooperation with the presentence

investigation, the plea bargain offered to Rudi, and

Dorn’s immunity—were in fact mitigating at all. Id.

Again, there is no constitutional requirement that the

sentencer assign proffered mitigating evidence any

particular weight. See Harris [v. Alabama, 513 U.S.

504, 512 (1995)].

46 APELT V. RYAN

Retardation,” and was intellectually disabled, the district

court noted that Apelt had been tested as a child and found to

have an overall IQ of 88. While the experts were skeptical

about this test result, the district court noted that “the only

specific challenge they offered was that Apelt would not have

been placed in a special education school if his IQ had been

that high.” The court found this “unpersuasive as a criticism

of the test because no one contests that Apelt’s IQ was

measured at 88 and, notwithstanding that result, he was in

fact placed in a special education school.”

Perhaps more important to the district court was the

evidence of malingering: that Apelt sought to appear on the

tests to be less intelligent than he is. Kury and Ruff

administered eight separate IQ tests of Apelt and averaged

them to arrive at a full-scale IQ score of 65, but the district

court shared the state court’s concern that these scores were

the result of Apelt’s malingering. The district court noted

that Kury had detected “slight malingering” and that Ruff

acknowledged it was possible Apelt malingered on some

tests. Although Kury and Ruff doubted that the indications

of malingering were strong enough to change their overall

evaluations, they could not exclude the possibility that Apelt

malingered or that all the testing data was reliable. The

district court concluded that the state court had not clearly

erred “by taking into account evidence of malingering in

considering whether Apelt met his burden of establishing

subaverage intelligence.”

Although Apelt’s experts opined that he suffered from

significant deficits in adaptive behavior, particularly

social/interpersonal skills, financial responsibility, functional

academics, and work, Dr. Moran, Arizona’s expert, thought

“Apelt’s conduct was actually indicative of anti-social

APELT V. RYAN 47

personality disorder.” The district court found that the state

court was entitled to assess the relative credibility of the

experts and that its decision to credit one qualified expert

over the others was not enough to merit relief. The district

court concluded that the state court did not clearly err when

it found Apelt had failed to prove he met the adaptive

behavior prong of intellectual disability and that the state

court’s ruling on the Atkins issue was not based on an

unreasonable determination of facts.

7. Claim 27 (standard for proving intellectual disability)

Finally, the district court rejected Apelt’s argument that

Arizona had violated his right to due process and freedom

from cruel and unusual punishment set forth in Cooper v.

Oklahoma, 517 U.S. 348 (1996), by requiring that he prove

his intellectual disability. It noted that the Supreme Court in

Atkins expressly permitted states to establish their own

procedures for determining intellectual disability, and, thus,

“there is no clearly established federal law setting a burden of

proof in Atkins cases or extending Cooper to claims of

intellectual disability.”

The September 1, 2015 order concluded with the issuance

of a certificate of appealability on two issues: denial of funds

to travel to Germany, and the Atkins claim. The court also

asked the parties to file supplemental briefs on whether an

evidentiary hearing was necessary on IAC at sentencing.

H. The District Court’s December 1, 2015 Order

No party thought that an evidentiary hearing was

necessary, but Arizona filed a motion for reconsideration,

which the district court denied. In doing so, the court

48 APELT V. RYAN

expanded on its reasons for granting relief. The court noted

that Villarreal’s initial presentation of mitigation omitted

evidence directly contradicting the assertion that Apelt’s

childhood was normal. However, PCR counsel presented

evidence “of extreme poverty, physical abuse, developmental

delays, and mental health problems,” and these allegations of

prejudice were strengthened by the record developed in the

Claim 12 proceedings. The district court noted that: (1)

Apelt’s father was cruel to his children and beat them; (2) the

father sexually abused his children; (3) Apelt suffered

extreme stress as a result of his father’s abuse; (4) Apelt’s

childhood development was delayed and he had difficulty

maintaining his hygiene and dressing appropriately; (5) Apelt

attended a special school for learning disabled and mentally

retarded children and left school when he reached ninth

grade; (6) he had difficultly maintaining employment, even

in unskilled labor; (7) Apelt was discharged from compulsory

military service for “mental inadequacy”; and (8) Apelt was

sent to a psychiatric institution after a suicide attempt. The

district court reasoned:

None of this evidence was presented at

sentencing. As a result, the court was given a

picture of Apelt’s background that bore “no

relation” to the picture that could have been

presented if sentencing counsel had performed

competently. Rompilla v. Beard, 545 U.S.

374, 392–93 (2005). In circumstances like

this, where such “classic” mitigation has been

omitted, courts have consistently found

ineffective assistance of counsel. Hamilton v.

Ayers, 583 F.3d 1100, 1131 (9th Cir. 2009).

APELT V. RYAN 49

The district court also rejected Arizona’s assertion that

the three aggravating factors outweighed the totality of the

mitigating evidence. It cited Correll v. Ryan, 539 F.3d 938,

951–52 (9th Cir. 2008), as holding that to establish prejudice

under Strickland it is not necessary to show that the newly

discovered mitigation evidence “would necessarily overcome

the aggravating circumstances.” It noted that, although three

aggravating factors were found, “under Arizona law the

pecuniary gain and procuring factors are not both entitled to

‘full weight.’” In addition, the court observed that the Ninth

Circuit in Stankewitz v. Woodford, 365 F.3d 706, 717–18 (9th

Cir. 2004), recognized that the Supreme Court had made clear

that the failure to present mitigating evidence could be

prejudicial even when the defendant’s actions were egregious.

The order concluded with the reiteration that “Villareal’s

representation at sentencing was inadequate and prejudiced

Apelt,” and that, had he “performed a competent mitigation

investigation, there is a reasonable probability that Apelt

would not have been sentenced to death.”

II.

The district court’s grant or denial of habeas relief is

reviewed de novo. Moses v. Payne, 555 F.3d 742, 750 (9th

Cir. 2009).

A. The state court’s finding of procedural default

must be considered, but does not preclude federal

judicial review.

As a threshold issue, Arizona asserts that the district court

was barred from reaching the merits of Apelt’s IAC claims

because these claims were procedurally barred under Arizona

law, and Apelt cannot excuse his default under Martinez, 566

50 APELT V. RYAN

U.S. 1. It appears that the district court may have

misinterpreted our decision in Clabourne, 745 F.3d 362,

overruled on other grounds by McKinney v. Ryan, 813 F.3d

798, 818 (9th Cir. 2015) (en banc). Nonetheless, reviewing

the district court’s comprehensive consideration of Apelt’s

petition, we conclude that the district court implicitly

determined that Apelt met the cause and prejudice standard

set forth in Coleman v. Thompson, 501 U.S. 722 (1991), and

thus could address the merits of Apelt’s IAC claims.

1. We review the state court’s procedural default ruling

on its merits.

The district court’s treatment of Martinez is not a model

of clarity. Leading up to its consideration of Apelt’s claims

on their merits, the district court wrote:

The Ninth Circuit [in Clabourne] held that

even assuming Martinez could excuse the

procedural issue, the alternative merits ruling

must still receive the normal deference

applicable to state court rulings. . . .

Given the holding in Clabourne, the fact the

state court found Claims 1-B and 12

procedurally improper does not mean that the

Court can ignore the alternative merits ruling.

Instead, the Court must accept that the two

claims were resolved by the state court on

their merits and review their rejection under

the deferential standard applicable to Apelt’s

other claims.

APELT V. RYAN 51

The district court then addressed Apelt’s claims under the

standard set forth in AEDPA, 28 U.S.C. § 2254(d). However,

it did not explicitly address Arizona’s assertion that Apelt’s

IAC claim was procedurally barred.13

Nonetheless, the clear import of the district court’s

language is that it was abiding by our direction in Clabourne

to review the state court’s merits decision under AEDPA’s

deferential standard. Following Martinez, if a state court had

determined that a constitutional issue was procedurally

defaulted, and the federal habeas court subsequently

determined that the procedural default was excused, then the

federal court would apply a de novo standard of review as

there was no state court determination on the merits to which

the federal court could defer. Our opinion in Clabourne

clarified that when a state court “double-barrels” its

decision—holding that a claim was procedurally barred and

denying the claim on its merits—both its procedural default

ruling and its merits ruling are entitled to deferential review

by federal courts, as intended by AEDPA.

Accordingly, the district court’s orders should not be

construed as holding that, because the state court reached the

merits of Apelt’s claim, the federal court can ignore the

procedural default. In Zapata v. Vasquez, 788 F.3d 1106,

1111 (9th Cir. 2015), we reiterated that, where a state court

expressly invokes a procedural bar, the claim is defaulted,

even though the state court goes on to discuss the merits of

13

In its December 1, 2015 order, the district court denied that it had

overlooked Arizona’s claim of procedural default, but had rejected it

because Arizona had “not clearly explained how this Court could have

committed error by following the sequence explicitly set forth by the

Ninth Circuit in Clabourne.”

52 APELT V. RYAN

the claim. See also Harris v. Reed, 489 U.S. 255, 264 n.10

(1989).

Here, the state trial court clearly held that the IAC claims

were precluded under Arizona law before determining that

Apelt had failed to show that counsel’s performance fell

below objective standards of reasonableness and failed to

show that there was a reasonable probability that the result of

sentencing would have been different. Accordingly, we first

consider whether Apelt’s IAC claim is procedurally barred.

Martinez is properly understood as building on Coleman.

Coleman set forth the requirement that, in order to obtain

federal habeas relief, a state prisoner must establish cause to

excuse a procedural default in state court, as well as

prejudice. 501 U.S. at 730–31. Martinez embraced the

causation requirement, but held that a prisoner could establish

causation by showing two things: (1) where he had counsel in

the initial collateral review proceeding, that the attorney was

ineffective under the standards of Strickland; and (2) “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.” Martinez,

566 U.S. at 14. Indeed, the Supreme Court explained that,

“[w]hen faced with the question whether there is cause for an

apparent default, a State may answer that the ineffective-

assistance-of-trial-counsel claim is insubstantial, . . . or that

the attorney in the initial-review collateral proceeding did not

perform below constitutional standards.” Id. at 15–16.14

14

In Davila v. Davis, 137 S. Ct. 2058 (2017), the Supreme Court

reaffirmed that Martinez is best understood as qualifying Coleman. Id. at

2065. Davila sought to extend Martinez to a claim of ineffective

assistance of appellate counsel on direct appeal where his “postconviction

APELT V. RYAN 53

Under Coleman and Martinez, the district court’s

determinations—both that it could reach the merits of Apelt’s

IAC claims and its evaluation of the merits of Apelt’s IAC

claims—turn on three inquiries: (1) whether Villarreal, as

Apelt’s counsel on his first PCR, was ineffective under

Strickland; (2) whether Villarreal’s performance as counsel

at sentencing was ineffective under Strickland; and (3)

whether Apelt was prejudiced by Villarreal’s performances.

2. Arizona’s contentions that Martinez and Coleman are

inapplicable are not persuasive.

Arizona advances two arguments for holding that the

district court could not reach the merits of Apelt’s IAC

claims. Arizona first argues that the purpose behind the

exception recognized in Coleman and Martinez is a concern

that no court will consider a state defendant’s constitutional

claim of trial counsel IAC. It thus reasons that, because the

trial court reached the merits of Apelt’s IAC claims, there is

no need for the exception because one court did consider

Apelt’s contentions on their merits.

Although Arizona cites selected language from Martinez,

we do not find its argument persuasive. Its proposed “one

counsel provides ineffective assistance by failing to raise that claim.” Id.

Justice Thomas, writing for the majority, stressed the differences between

trial error, where the defendant has a constitutional right to counsel, and

appellate error, where there is no right to counsel. Id. at 2067. Here,

Apelt’s claim to a Martinez exception is based on ineffectiveness at the

trial stage, and thus is not directly affected by Davila. Davila does not

appear to change the requirement that, in order to successfully invoke the

exception to procedural default, the defendant must show that his post-

conviction counsel, in failing to address trial counsel’s ineffectiveness,

was himself ineffective under the standards of Strickland.

54 APELT V. RYAN

and done” approach, rather than narrowing federal habeas

review, would bar federal review of constitutional issues. It

contends that the fact that one state court had addressed the

constitutional issues on the merits, blocks federal habeas

review, regardless of the reasonableness of the state court’s

decision. However, even if the fact that one state court had

considered the constitutional claim were sufficient to

distinguish Martinez, a petitioner, such as Apelt, would still

be eligible to meet the cause and prejudice standard set forth

in Coleman. There, the Court stated:

In all cases in which a state prisoner has

defaulted his federal claims in state court

pursuant to an independent and adequate state

procedural rule, federal habeas review of the

claims is barred unless the prisoner can

demonstrate cause for the default and actual

prejudice as a result of the alleged violation of

federal law, or demonstrate that failure to

consider the claims will result in a

fundamental miscarriage of justice.

501 U.S. at 750. Thus, even if Apelt’s proceedings do not

come within the coverage of Martinez, the procedural default

might still be excused under Coleman.

Second, Arizona asserts that because the state court

denied Apelt’s PCR on the merits, Apelt cannot show that the

failure to raise IAC claims in the first post-conviction petition

was prejudicial. In other words, because the state court

rejected the IAC claims on their merits in the PCR, it follows

that there was no prejudice from the failure to raise the claims

in the first post-conviction petition, and, thus, Apelt is not

entitled to federal habeas review under Martinez.

APELT V. RYAN 55

Again, Arizona’s argument seeks to place Apelt’s

constitutional claim beyond even deferential review by a

federal court. Certainly, the state court’s decision on the PCR

is relevant to a determination of whether the failure to raise

IAC claims in the first post-conviction petition was

prejudicial. But that determination is not in itself a complete

bar to federal habeas review—particularly where, as here, the

state court’s merits ruling on the PCR is a conclusory

alternate ruling.

In sum, while the state court’s alternate ruling on the

merits of the IAC claims does not allow a federal court to

ignore the procedural default ruling, it also does not bar a

federal court from applying Martinez and Coleman.

3. Villarreal was ineffective as counsel on the post-

conviction petition.

In support of his assertion that Villarreal was ineffective

as post-conviction counsel, Apelt asserts: (1) Villarreal was

conflicted from raising his own ineffectiveness at sentencing;

(2) Villarreal squandered Apelt’s opportunity for a thorough,

well-investigated post-conviction petition when he

prematurely filed a post-conviction petition; (3) Villarreal

failed to comply with well-established professional norms

that in 1989 required that counsel, in a capital case, be

familiar with all state and federal post-judgment options,

discuss them with his client, and conduct thorough

investigations into all meritorious issues, particularly claims

56 APELT V. RYAN

of IAC; and (4) the failure to investigate was not, and could

not have been, the product of strategy.15

Arizona responds that Apelt’s conflict-of-interest

argument is foreclosed by Ortiz v. Stewart, 149 F.3d 923 (9th

Cir. 1998), and Bonin v. Calderon, 77 F.3d 1155 (9th Cir.

1996). However, these cases were decided before Martinez

and were premised on the lack of a constitutional right to

counsel in a habeas proceeding.16 At that time, a post-

conviction lawyer’s negligence did not qualify as cause

because the lawyer was considered the prisoner’s agent. See

Lopez v. Ryan, 678 F.3d 1131, 1133 (9th Cir. 2012) (noting

that Coleman “held that a PCR lawyer’s negligence does not

qualify as cause, because the lawyer is the prisoner’s agent”).

Martinez, however, recognized that “inadequate assistance of

counsel at initial-review collateral proceedings may establish

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

ineffective assistance of counsel.” Lopez, 678 F.3d at 1133

(quoting Martinez, 566 U.S. at 9). Accordingly, Martinez

overruled the premise of the rulings in Stewart and Bonin,

giving life to conflict-of-interest assertions.

15

The district court, although finding that Villarreal had been

ineffective, did not separately consider his performance as post-conviction

counsel.

16

In Stewart, we held that the argument that an attorney “was

prevented from raising his own ineffectiveness due to a clear conflict of

interest” had been rejected in Nevius v. Sumner, 105 F.3d 453, 460 (9th

Cir. 1996). Stewart, 149 F.3d at 933. In Nevius, we commented that the

conflict of interest argument was “not without force,” but was foreclosed

because Bonin, 77 F.3d at 1159, had held that “[t]here was no

constitutional right of counsel in such habeas proceedings even if they

presented the first opportunity to raise the ineffectiveness claim.” Nevius,

105 F.3d at 460.

APELT V. RYAN 57

We glean guidance from our opinion in United States v.

Del Muro, 87 F.3d 1078 (9th Cir. 2008). There, we

commented:

When Del Muro’s allegedly incompetent trial

attorney was compelled to produce new

evidence and examine witnesses to prove his

services to the defendant were ineffective, he

was burdened with a strong disincentive to

engage in vigorous argument and

examination, or to communicate candidly with

his client. The conflict was not only actual,

but likely to affect counsel’s performance.

87 F.3d at 1080.

A similar situation may exist where a defendant is

represented on appeal by his trial attorney. The attorney may

be torn between his duty to represent his client and a desire to

defend the reasonableness of his performance at trial. Here,

it is possible that Villarreal’s prompt filing of a post-

conviction petition, based on the specialist’s testimony in

Rudi’s trial, was partially fueled by a desire to avoid litigating

his performance at sentencing.

Arizona also argues that the court should defer to

Villarreal’s decision to file a post-conviction petition while

the direct appeal was pending and, that, even if doing so was

“unusual,” this does not necessarily make it ineffective.

Although other counsel could have chosen other routes,

Arizona maintains that Villarreal’s choice fell well within the

wide range of professional competence.

58 APELT V. RYAN

On the record in this case, it is very difficult to justify

Villarreal’s decision. His client had been found guilty of a

horrendous murder and given the death penalty. Rather than

take the time to investigate the case, as required by the

applicable professional norms, he forfeited all other

arguments that could be raised in a post-conviction petition,

including IAC, to argue that Dr. DiMaio’s testimony, in

Rudi’s trial, that Cindy’s murderer was right handed,

exonerated Apelt, who is left handed. This was not

objectively reasonable. There was overwhelming evidence

that Apelt and Rudi committed the crime together, regardless

of which one actually killed Cindy. Moreover, even if the

argument had some potential for reducing Apelt’s sentence,

there was no need or reason to rush filing the post-conviction

petition before all the other possible issues had been

researched. In sum, the record supports a determination that

Apelt’s challenge to Villarreal’s performance as post-

conviction counsel is “substantial.” Martinez, 566 U.S. at 14;

see also Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)

(holding that for a certificate of appealability to issue, a

petitioner must show that reasonable jurists could debate

whether the issue should have been resolved in a different

manner or that the claim was “adequate to deserve

encouragement”) (citation omitted).

B. Villarreal was ineffective at sentencing.

Having determined that Villareal’s performance on

Apelt’s first post-conviction petition was sufficiently

deficient as to provide cause for Apelt’s default, see

Coleman, 501 U.S. at 750, we consider whether Villarreal’s

performance as counsel at sentencing was ineffective under

Strickland, 466 U.S. 668.

APELT V. RYAN 59

Arizona objects to the district court’s determination of

IAC asserting that the state courts’ rejection of these claims

were neither contrary to, nor an unreasonable application of,

clearly established federal law. In particular, Arizona argues

that: (a) the alleged failure to adduce mitigating evidence is

the same ilk as the errors in Strickland, Darden v.

Wainwright, 477 U.S. 168 (1986), and Burger v. Kenmp,

483 U.S. 776 (1987); (b) clearly established federal law refers

only to Supreme Court holdings; and (c) the district court did

not explain why the state court’s decision was contrary to

Strickland.

Some of Arizona’s arguments, however, are slightly off

point because the essence of the district court’s determination

was factual. Habeas relief was granted not for a failure to

follow clearly established federal law, 28 U.S.C.

§ 2254(d)(1), but because, applying clearly established

federal law, the determination that Villarreal was not

ineffective under the standard of Strickland was “an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(2).

Nonetheless, Darden and Burger inform our decision in

this matter. In Darden, IAC was only one of Darden’s

claims. He argued that his trial attorneys “did not delve

sufficiently into his background, and as a result were

unprepared to present mitigating evidence at the sentencing

hearing.” 477 U.S. at 184. In rejecting Darden’s claim, the

Supreme Court noted that defense counsel had “engaged in

extensive preparation prior to trial, in a manner that included

preparation for sentencing.” Id. Counsel expended hundreds

of hours on Darden’s behalf, including “investigating

petitioner’s alibi, and driving petitioner around the scene of

60 APELT V. RYAN

events to establish each point of his story,” and “obtain[ing]

a psychiatric report on petitioner, with an eye toward using it

in mitigation during sentencing.” Id. at 185.

The Court further noted that there were several reasons

why counsel could have reasonably chosen to rely on a

simple plea for mercy. Id. at 186. “Any attempt to portray

petitioner as a nonviolent man would have opened the door

for the State to rebut with evidence of petitioner’s prior

convictions.” Id. “In addition, if defense counsel had

attempted to offer testimony that petitioner was incapable of

committing the crimes at issue here, the State could have

responded with a psychiatric report that indicated that

petitioner ‘very well could have committed the crime.’” Id.

“[I]f defense counsel had attempted to put on evidence that

petitioner was a family man, they would have been faced with

his admission at trial that, although still married, he was

spending the weekend furlough with a girlfriend.” Id.

Accordingly, the Court concluded that counsel’s decision,

after consulting with Darden, not to use the psychiatric

testimony was reasonable.

In Burger, IAC was a secondary issue.17 Burger’s

attorney had “offered no mitigating evidence at all.”

483 U.S. at 788. However, the Supreme Court reviewed the

counsel’s extensive investigation that led to the decision not

to present mitigating evidence. Id. at 789–91. The Court also

noted that counsel had considered calling Burger’s mother

and a lawyer who had acted as Burger’s big brother, but

17

The first issue was whether “the appointment of two partners to

represent coindictees in their respective trials creates a possible conflict

of interest that could prejudice either or both clients.” Burger, 483 U.S.

at 783.

APELT V. RYAN 61

concluded that “it was surely not unreasonable for [counsel]

to have concluded that cross-examination might well have

revealed matters of historical fact that would have harmed his

client’s chances for a life sentence.” Id. at 792. It further

commented that “petitioner’s present counsel—even with the

benefit of hindsight—has submitted no affidavit from that

lawyer establishing that he would have offered substantial

mitigating evidence if he had testified.” Id. at 793. In sum,

the Court, although troubled by counsel’s actions, concluded

that Burger had not shown that his actions “were outside the

wide range of professionally competent assistance.” Id. at

795 (citation omitted).

Counsels’ efforts in Darden and Burger stand in contrast

to Villarreal’s minimal efforts to investigate Apelt’s

background. It is particularly noteworthy that defense

counsel in those cases procured psychiatric reports on the

defendants even though they ultimately decided not to present

the reports at sentencing.

Arizona also argues that the state court properly rejected

Villarreal’s request for funds to travel to Germany and that

Villarreal adequately investigated mitigation evidence.

Arizona notes that Villarreal’s co-counsel traveled to

Germany in hope of obtaining evidence of Apelt’s difficult

childhood, and that Villarreal contacted the German consulate

and Amnesty International.

These arguments are not persuasive as they ignore the

troubling information that Villarreal had and misstate some

of the facts. The very fact that Villarreal’s co-counsel

traveled to Germany and sought information as to Apelt’s

“difficult childhood” suggests that Villarreal recognized the

potential importance of such information. Moreover, co-

62 APELT V. RYAN

counsel’s failure to procure the background information was

not because it didn’t exist, but because Apelt’s family

members didn’t speak English. Also, counsel knew, or

should have known, that Apelt, while in jail, was prescribed

a number of medications, was placed on suicide watch for

five days, and was admitted to the Psychiatric Unit on at least

one occasion. This information appears to be the type that

would prompt counsel to obtain a psychiatric report on the

defendant, as counsel did in Darden and Burger.

Furthermore, the record refutes Arizona’s suggestions that

Villarreal utilized Amnesty International and that the German

consulate was of assistance.

Moreover, Villarreal stated that his failure to investigate

mitigation evidence was not a strategic choice, and that Apelt

did not take an active part in the development of mitigating

evidence. Indeed, it is difficult to imagine any rational basis

for not investigating Apelt’s mental health and childhood.

Apelt was facing the death penalty for committing a

horrendous, cold-blooded murder. The documents that

counsel had received the night before sentencing that

allegedly attested to Apelt’s good character were unlikely to

have any impact on the judge.18 Furthermore, these

documents were more than offset by the testimony of

Detective Davis, who spoke German, had traveled to

Germany, and testified to Apelt’s criminal activity and poor

character in Germany. The record shows that Villarreal was

unprepared to respond to Detective Davis’s testimony.

18

Apelt was sentenced by a judge under the Arizona system that the

Supreme Court later declared unconstitutional. See Ring v. Arizona,

536 U.S. 584, 609 (2002). However, the Supreme Court subsequently

held that Ring does not apply retroactively. See Schriro v. Summerlin,

542 U.S. 348, 358 (2004).

APELT V. RYAN 63

We do not have the benefit of the state courts’ reasons for

rejecting Apelt’s IAC claim on his PCR. The state trial court

offered only the conclusive statement that Apelt had failed

“to make a sufficient preliminary showing that counsel’s

performance fell below objective standards of

reasonableness.” The Arizona Supreme Court summarily

denied Apelt’s petition for review.

Nonetheless, as required by Richter, 562 U.S. at 102, we

consider “what arguments or theories supported or, as here,

could have supported, the state court’s decision,” and “ask

whether it is possible fairminded jurists could disagree that

those arguments or theories are inconsistent with the holding

in a prior decision of this Court.”

Here, we determine that this record compels a finding that

Villarreal’s performance at the capital hearing sentence “fell

below an objective standard of reasonableness,” even in 1989.

Id. at 104 (quoting Strickland, 466 U.S. at 688). There can be

no doubt that counsel was required to review a defendant’s

background in preparation for sentencing. Indeed, the record

shows that Villarreal knew this but failed to take the steps

necessary to do so. After all, Apelt had spent his whole life

in Germany until he came to the United States some six

months before committing the murder. The trial court’s

reluctance to fund Villarreal’s requested travel to Germany

simply does not excuse Villarreal’s failure to make the

supplemental showing requested by the trial court, nor does

it excuse his failure to consider other means of investigating

Apelt’s mental health and background. He did not seek a

psychiatric evaluation of Apelt despite the nature of the

crime, Apelt’s treatment while incarcerated before trial, and

other indicia of possible psychiatric issues. Accordingly, we

64 APELT V. RYAN

agree with the district court that “[n]o fairminded jurist could

conclude Villareal’s performance was sufficient.”

C. The state courts’ determination that counsel’s

inadequate representation of Apelt at sentencing

was not prejudicial is not unreasonable.

While we agree with the district court that Villarreal’s

performance at sentencing was inadequate, we cannot find, as

required by the Supreme Court, that the state courts’ finding

of no prejudice was “objectively unreasonable.” Woodford

v. Visciotti, 537 U.S. 19, 27 (2002).

The Supreme Court stated in Richter:

With respect to prejudice, a challenger must

demonstrate “a reasonable probability that,

but for counsel’s unprofessional errors, the

result of the proceeding would have been

different. A reasonable probability is a

probability sufficient to undermine confidence

in the outcome.” [Strickland, 466 U.S.] at

694. It is not enough “to show that the errors

had some conceivable effect on the outcome

of the proceeding.” Id., at 693. Counsel’s

errors must be “so serious as to deprive the

defendant of a fair trial, a trial whose result is

reliable.” Id., at 687.

562 U.S. at 104 (parallel cites omitted). The Court explained:

In assessing prejudice under Strickland, the

question is not whether a court can be certain

counsel’s performance had no effect on the

APELT V. RYAN 65

outcome or whether it is possible a reasonable

doubt might have been established if counsel

acted differently. See Wong v. Belmontes,

558 U.S. 15, 27 (2009) (per curiam);

Strickland, 466 U.S. at 693. Instead,

Strickland asks whether it is “reasonably

likely” the result would have been different.

Id., at 696. This does not require a showing

that counsel’s actions “more likely than not

altered the outcome,” but the difference

between Strickland’s prejudice standard and a

more-probable-than-not standard is slight and

matters “only in the rarest case.” Id., at 693,

697. The likelihood of a different result must

be substantial, not just conceivable. Id., at

693.

562 U.S. at 111–12 (parallel cites omitted).

Critically, in a federal habeas petition where the petitioner

is challenging counsel’s performance, the question “‘is not

whether a federal court believes the state court’s

determination’ under the Strickland standard ‘was incorrect

but whether that determination was unreasonable—a

substantially higher threshold.’” Knowles v. Mirzayance,

556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan,

550 U.S. 465, 473 (2007)). Thus, our review of the state

court decision is “doubly deferential.” Pinholster, 563 U.S.

at 190 (quoting Knowles, 556 U.S. at 123). Accordingly,

“[w]hen § 2254(d) applies, the question is not whether

counsel’s actions were reasonable. The question is whether

there is any reasonable argument that counsel satisfied

Strickland’s deferential standard.” Richter, 562 U.S. at 105.

66 APELT V. RYAN

In addition, the Supreme Court directs that even “[w]here

a state court’s decision is unaccompanied by an explanation,

the habeas petitioner’s burden still must be met by showing

there was no reasonable basis for the state court to deny

relief.” Id. at 98.

In Andrews v. Davis, 866 F.3d 994 (9th Cir. 2017), we

read Supreme Court precedent as establishing three steps for

applying Strickland to determine whether counsel’s deficient

performance prejudiced the defendant at the penalty phase of

a state capital case. Id. at 1020. First, the court evaluates and

weighs the totality of the available mitigating evidence;

second, it evaluates and weighs “the aggravating evidence

and any rebuttal evidence that could have been adduced by

the government had the mitigating evidence been

introduced”; and third, it reweighs “the evidence in

aggravation against the totality of available mitigating

evidence . . . to determine ‘whether there is a reasonable

probability that, absent the errors, the sentencer . . . would

have concluded that the balance of aggravating and mitigating

circumstances did not warrant death.” Id. (quoting

Strickland, 466 U.S. at 695). In Andrews, we reversed the

district court’s grant of a writ because we found that the

California Supreme Court’s determination that the denial of

effective counsel was not prejudicial was not an unreasonable

application of Strickland. Id. at 1033. We reach a similar

conclusion in this case.

Apelt clears the first hurdle as the proffered mitigating

evidence paints a very different picture of Apelt’s background

and character than was presented at sentencing. Apelt

probably clears the second hurdle, mostly because there is

little evidence in the record as to what rebuttal evidence

Arizona might have produced in response to the mitigating

APELT V. RYAN 67

evidence proffered in the PCR.19 However, Apelt fails to

clear the third hurdle: he has not shown that, after reweighing

the aggravating and mitigating evidence, there is a reasonable

probability that, absent the errors, the sentencer would have

concluded that the balance of aggravating and mitigating

circumstances did not warrant death. Therefore he has not

shown that the state courts’ determination of no prejudice is

so unreasonable that no reasonable jurist could agree with it.

Apelt cites cases such as Williams, 529 U.S. 362, Wiggins

v. Smith, 539 U.S. 510 (2003), and Stankewitz, 365 F.3d 706,

as showing that neither the brutality of the underlying murder,

nor the defendant’s prior criminal acts, excuse counsel’s

failure to investigate the defendant’s background. Apelt’s

argument is fair, but overlooks a critical distinction. In all

three of those cases, the murders were not planned: rather

than being premeditated, the murders were the result of other

motives, such as robbery and kidnaping.

Here, Cindy’s murder was premeditated and calculated.

The record shows that from the time Apelt entered the United

States around Labor Day 1988, he lied to and manipulated

others, and borrowed and stole money from women. He was

intent on marrying a woman for her money. In less then a

month he proposed to three different women. He convinced

Cindy to secretly marry him in Las Vegas by leading her to

believe that he was wealthy. A little over a week after the

marriage, Apelt visited an insurance broker seeking to take

out a million dollar insurance policy on Cindy’s life. As

borne out by subsequent events, Apelt’s unwavering intent

19

However, there are indications in the record, such as Detective

Davis’s testimony at trial, of evidence that would contradict the evidence

Apelt proffered in support of his PCR.

68 APELT V. RYAN

was to murder the woman he had convinced to marry him in

order to collect on the insurance policy.

When the insurance broker indicated that they could not

obtain a million dollar policy, Apelt and Cindy filled out an

application for a $400,000 policy. When the company did not

accept the application for a $400,000 policy, Apelt agreed to

take out two policies, one for $100,000 and another for

$300,000. All of these applications were paid for by Cindy.

In early December, Apelt told Anke that Cindy had a lot

of insurance and that if she died an unnatural death, he would

be rich. At about the same time, Anke and Rudi reserved a

rental car with a good-sized trunk, but cancelled the

reservation a couple of days later. On December 22, the

insurance agent told Apelt and Cindy that the two insurance

policies were in effect.20 The next day Rudi and Anke

returned to the car rental agency and rented the car with a

large trunk. Apelt told Rudi and Anke that they would have

lots of money if they would “go out and kill Cindy.” That

night Apelt drove Cindy out into the desert and he and Rudi

murdered her.

Apelt acted as if he had no involvement in Cindy’s

murder. He pretended to wait for her for a late dinner at a

restaurant, penned a fake note to Cindy to that effect, and

cried in the presence of a police officer when Cindy’s sister

reported that Cindy was missing. After Cindy’s body was

discovered, Apelt continued to deny any knowledge of her

20

There is evidence in the record that Cindy was insistent that her

father review the insurance policy and the insurance agent explained to

Cindy and Apelt that Cindy had 10 days to talk the matter over with her

father and rescind the insurance policies if she wanted to.

APELT V. RYAN 69

death. He went to the insurance agent seeking assistance to

obtain money so that he could attend Cindy’s funeral in

Illinois, and eventually obtained a $2,000 loan, using the life

insurance policy as collateral. Apelt flew to Illinois, attended

the funeral, and broke down in tears when he tried to speak at

the funeral.

Meanwhile, Apelt continued to scheme in order to get

away with murder. When, on December 28, he returned the

rental car in which he had driven Cindy into the desert, the

two front tires had multiple flat spots caused by aggressive

harsh driving, thereby making it difficult to trace any tire

pattern. On January 3, Apelt flew to Los Angeles and paid a

homeless person to leave a message on Cindy’s answering

machine. At trial, Apelt maintained his innocence and from

jail attempted to get a note to Rudi instructing him on an

alibi.

Although he had opportunities to abandon his scheme,

Apelt relentlessly pursued his scheme to murder the woman

he professed to love and had married, and he involved his

brother, Rudi, and Anke in the murder and the cover-up.

Nothing in the record indicates that any explanation for why

Apelt became a monster would have changed the sentence.

This conclusion is all the more reasonable as none of the

proffered mitigating evidence excuses Apelt’s callousness,

nor does it reduce Apelt’s responsibility for planning and

carrying out the murder. Indeed, presenting Apelt’s

upbringing and activities in Germany to explain how Apelt

became a calculating killer arguably could weigh in favor

rather than against the death penalty. See Pinholster,

563 U.S. at 201 (noting that the “new evidence relating to

Pinholster’s family—their more serious substance abuse,

70 APELT V. RYAN

mental illness, and criminal problems . . . —is also by no

means clearly mitigating, as the jury might have concluded

that Pinholster was simply beyond rehabilitation”).

In sum, even assuming that we might have looked more

favorably on Apelt’s PCR than the state trial court, we cannot

conclude that there is no reasonable argument that Apelt was

not prejudiced. The evidence of Apelt’s depravity is

overwhelming. At the age of 25, Apelt concocted and carried

out a calculated plan to marry Cindy, to have her pay for her

own life insurance, and then, as soon as the insurance

premium was paid, to viciously and cruelly murder her.

Furthermore, he persuaded his younger, intellectually-

challenged brother to participate in the scheme and the actual

murder. We cannot say that it would be unreasonable to

conclude that further evidence as to how Apelt became such

a monster would have had no effect on his sentence.

Accordingly, we vacate the district court’s grant of the writ.

D. Apelt has not shown that the state court’s denial of

funding to investigate mitigation violated his

constitutional rights.

Apelt asserts that the trial court “eliminated any

opportunity for an individualized sentencing and a

presentation of mitigation” when it denied counsel funds for

travel to Germany. He argues that this violated his rights

under the Eighth and Fourteenth Amendments to

individualized sentencing. See Ake v. Oklahoma, 470 U.S.

68, 77 (1985) (noting that “a criminal trial is fundamentally

unfair if the State proceeds against an indigent defendant

without making certain that he has access to the raw materials

integral to the building of an effective defense”). Apelt

claims that the Arizona Supreme Court’s determination that

APELT V. RYAN 71

he had not made an adequate showing of need “was both an

unreasonable application of and contrary to clearly

established federal law.”

We agree with the district court that, because Villarreal

had offered only “undeveloped assertions” in support of his

request for funds, the Arizona Supreme Court’s denial of

relief was not unreasonable. In Caldwell v. Mississippi,

472 U.S. 320 (1985), the Supreme Court commented that,

because the petitioner in that case offered little more than

“undeveloped assertions that the requested assistance would

be beneficial,” the denial of requests for a ballistics expert

was not a denial of due process. Id. at 323 n.1. In Williams

v. Stewart, 441 F.3d 1030 (9th Cir. 2006), we stated that the

then “present rule is that an indigent defendant has a

constitutional right to investigative services, but that such

right comes into existence only when some need is

demonstrated by the defendant.” Id. at 1053–54 (quoting

Smith v. Enomoto, 615 F.2d 1251, 1252 (9th Cir. 1980)).

In light of this federal law, the Arizona Supreme Court’s

denial of relief was not unreasonable. The court cited

Caldwell and found that Apelt’s assertion of “prior

psychiatric hospitalization, his difficult childhood, and his

low education level,” were insufficient to compel funding.21

21

The court commented:

[Apelt] did not explain why the hospitalization might be

mitigating, and he refused the court’s invitation to make

a more detailed showing.

In support of his motion for continuance, defendant

again failed to explain what evidence was available in

Germany and how it would assist him. He did not offer

72 APELT V. RYAN

Apelt, 861 P.2d at 651–52. Perhaps, as Apelt asserts, today

reasonable jurists would be compelled to conclude that the

investigation of a capital defendant’s background and mental

history is so fundamental to the presentation of an adequate

defense that there is no need to demonstrate or explain why

it might be relevant.22 However, based on the existing federal

law in 1989, the Arizona Supreme Court’s decision—which

was based on a record that by and large refuted the need for

the proposed investigation—was not so outlandish that no

reasonable jurists could agree with it. The district court’s

denial of relief on Apelt’s challenge to the state courts’s

any reason why a difficult childhood and lack of

education would be mitigating.

...

Not only did defendant fail to demonstrate reasonable

necessity, but on appeal he fails to show how he was

prejudiced. Defendant’s claims that he had a difficult

childhood and little education conflicted with his

statements in the presentence report that his childhood

was fairly normal and that he had the equivalent of a

high school education.

Apelt, 861 P.2d at 651–52.

22

This argument finds some support in the Supreme Court’s recent

decision in McWilliams v. Dunn, 137 S. Ct. 1790 (2017). In Justice

Breyer’s opinion for five justices, the Court granted federal habeas relief

on the ground that “Ake clearly established that a defendant must receive

the assistance of a mental health expert who is sufficiently available to the

defense and independent from the prosecution to effectively ‘assist in

evaluation, preparation, and presentation of the defense.’” Id. at

1799–1800 (quoting Ake, 470 U.S. at 83). However, this opinion does not

help Apelt as the Arizona Supreme Court’s decision is evaluated on clear

federal law as it existed in 1989.

APELT V. RYAN 73

denial of funding to investigate mitigating evidence is

affirmed.

E. Apelt has not shown that he is entitled to relief

under Atkins.

1. Apelt’s Contentions

Apelt bases his argument on the Supreme Court’s

opinions in Atkins and Hall v. Florida, 134 S. Ct. 1986

(2014), that “the Eighth Amendment bars the execution of

people who are intellectually disabled according to current

medical standards.” He accepts that the applicable Arizona

statute, A.R.S. § 13-753(K)(3), defines intellectual disability

as requiring a showing of (a) significant subaverage general

intellectual functioning, (b) concurrent significant impairment

in adaptive behavior, and (c) onset before the defendant

reached the age of 18.

Apelt argues that the evidence shows that he “suffers

significantly subaverage intellectual functioning.” Dr. Ruff

conducted a neuropsychological examination of Apelt in

2000 and determined he had a full-scale IQ of 61, and Dr.

Kury conducted his own examination in 2004 and found

Apelt’s full-scale IQ to be 65. Apelt argues the only

“evidence” that he had a higher IQ was the reported result of

a test given Apelt in Germany when he was nine years old,

which is unreliable because there is no evidence as to how it

was administered.

Apelt also challenges the state court’s determination that

he was “malingering” and that accordingly the results of the

tests administered in 2000 and 2004 are not accurate. Apelt

argues that neither Dr. Ruff nor Dr. Kury opined that he was

74 APELT V. RYAN

malingering during the test. Rather, they testified that, even

if Apelt had attempted to malinger, their conclusions

remained sound.

Addressing the second prong of the intellectual disability

test, Apelt argues that Drs. Ruff and Kury agreed that he

suffers significant impairments in adaptive behavior, and that

the state court disregarded this testimony in concluding that

Apelt was “able to meet society’s expectations of him.” He

argues the state court improperly relied on the Arizona

Supreme Court’s opinion in State v. Grell, 135 P.3d 696

(Ariz. 2006), insofar as that case “permits the state court to

disregard evidence of adaptive behavior deficits.” Apelt

argues that he demonstrated numerous deficits in adaptive

behavior including the areas of “memory and orientation,

managing money, home and transportation, health and safety,

social adjustment, [and] functional academics.” He asserts

that all three experts agreed he suffers major deficits in his

adaptive behavior.

In addition, Apelt challenges the state court’s reliance on

his past employment, military discharge, and marriage. He

asserts that he was only able to obtain unskilled work and

never held a job for very long, his military discharge was due

to “mental inadequacy,” and his marriage lasted for only two

years during which time his wife abused him mentally and

physically. Apelt notes that he never lived on his own.

During his stay in the United States, he lived in a motel,

where he was not required to prepare meals or perform

housekeeping duties, or with Cindy upon whom he relied to

help him obtain identification and the paperwork necessary to

get a job at Olive Garden.

APELT V. RYAN 75

Apelt objects that the state court “improperly relied on the

facts of the crime to support its conclusion that Mr. Apelt

does not have the requisite adaptive behavior deficits to

qualify for a diagnosis of intellectual disability.” He argues

that the American Association on Intellectual and

Development Disabilities does not permit the use of criminal

behavior to assess adaptive behavior deficits. Moreover, he

criticizes the state court for emphasizing his strengths

because it is well-recognized that intellectually disabled

people can possess strengths along with weaknesses. He

similarly asserts that the state court “erred by placing too

much emphasis on Mr. Apelt’s adaptive behavior as an adult

and post-incarceration.”

Finally, addressing the third prong of the test, Apelt notes

that every expert “agreed the 88 score [on the test he took

when he was a child] was erroneous and/or lacked the

necessary foundation for professional consideration in the

intellectual disability evaluation.” Thus, left with two

reliable IQ scores of 61 and 65, the only reasonable inference

is that Apelt’s limitation arose before he was 18, as reflected

in his childhood behavior and assignment to a special school.

2. Apelt has not met his burden of showing that the state

court’s denial of his Atkins claim is an unreasonable

determination of the facts in light of the evidence

presented.

To prevail on his Atkins claim, Apelt must meet all three

prongs of the test for intellectual disability.23 State v.

23

Arizona’s arguments that we should not reach the merits of Apelt’s

Atkins claim are not persuasive. We find that Apelt did adequately raise

this claim in the district court, and that Apelt is not challenging the three-

76 APELT V. RYAN

Boyston, 231 Ariz. 539, 543, 298 P.3d 887, 891 (2013). His

experts tested Apelt and determined that his IQ was 61 or 65.

The only evidence that he had a higher IQ was the result of a

test administered in Germany when he was nine on which he

scored an 88. But there is no evidence as to the reliability of

the German test, and even Arizona’s expert, Dr. Moran,

questioned the accuracy of this test. Furthermore, the

placement of Apelt into an elementary school for

intellectually disabled and learning disabled children is at

least some evidence that the German school administrators

recognized that Apelt was intellectually disabled, despite the

88 score. Accordingly, the totality of the evidence would

support the conclusion that Apelt had a “subaverage general

intellectual functioning” before he reached the age of 18.

However, Apelt’s Atkins claim fails because the record

fairly supports the state courts’ determination that Apelt does

not suffer from significant deficits in adaptive behavior.

While Apelt focuses on his experts’ findings that he suffered

major deficits in his adaptive behavior, Arizona’s expert, Dr.

prong test set forth in A.R.S. § 13-753(K)(3). Rather, he focuses on the

application of the test to the facts in his case.

Arizona also suggests that there is some tension between 28 U.S.C.

§ 2254(d)(2) and § 2254(e)(1), with subsection (d)(2) requiring the

petitioner to demonstrate “an unreasonable determination of the facts,”

while subsection (e)(1) requires the petitioner to rebut “the presumption

of correctness by clear and convincing evidence.” However, we need not

address this tension. We agree with Arizona that, as was the situation in

Murray v. Schriro, 745 F.3d 984, 1001 (9th Cir. 2014), the difference

between the two standards of review is not determinative. Indeed, it is

difficult to imagine a case in which a court would find that a state court

decision was “an unreasonable determination of the facts,” but that the

petitioner had not rebutted the “presumption of correctness by clear and

convincing evidence.”

APELT V. RYAN 77

Moran, disagreed, and the state court could credit one expert

over another. More importantly, Apelt does not really

address the strongest evidence of his adaptive behavior: the

record of his activities in the United States. The state court

commented:

[Apelt] traveled to the United States and

Mexico, learned to speak English sufficiently

to communicate and interact appropriately

with others, negotiated purchases of vehicles

and apartment leases, understood foreign

currency exchange rates, and obtained

employment. After persuading the victim to

marry him, he convinced her to buy a life

insurance policy as part of his scheme to

murder her for the proceeds. Knowing he

would eventually be questioned by the police

about his wife’s disappearance, he devised an

explanation that she left the apartment that

evening after receiving a telephone call,

telling him she would meet him later at a

restaurant, and established an alibi consistent

with this story. He maintained this story

consistently despite persistent police

interrogation and again more than a year later

at his trial.

Indeed, Apelt’s activities in the United States reflect

ingenuity, cleverness, and an ability to manipulate others.

Accordingly, we cannot find that the state court’s

determination was not supported by substantial evidence or

is unreasonable. The district court’s denial of relief on

Apelt’s Atkins claim is affirmed.

78 APELT V. RYAN

F. Uncertified Issues

As allowed by Ninth Circuit Local Rule 22-1(e), Apelt’s

brief raised two uncertified claims for relief: (1) the Arizona

Supreme Court applied an unconstitutional causal connection

requirement to his mitigation evidence; and (2) counsel was

ineffective at trial and sentencing for failing to challenge

Apelt’s competency. Pursuant to Ninth Circuit Local Rule

22-1(f), we asked Arizona to respond to the uncertified

issues. Arizona did, and we hereby certify the issues for

appeal, and deny Apelt’s claims on their merits. See Buck v.

Davis, 137 S. Ct. 759, 773 (2017).

1. Apelt’s claim that the Arizona Supreme Court applied

an unconstitutional causal nexus requirement is not

persuasive.

Apelt asserts that, when reviewing his conviction and

sentence, the Arizona Supreme Court applied an

unconstitutional causal nexus requirement by: (a) stating that

he “has failed to advance any credible argument as to why

some factors should be considered mitigating at all”; (b)

discounting the history of psychiatric hospitalization because

he “did not explain why hospitalization might be mitigating”;

and (c) rejecting his challenge to the lack of mitigation

funding because he “did not offer any reason why a difficult

childhood and lack of education would be mitigating.” Apelt,

861 P.2d at 651, 653–54. Apelt argues that since Lockett v.

Ohio, 438 U.S. 586 (1978), the Supreme Court has defined

mitigation as anything about a defendant’s character or record

that the defendant proffers as a basis for a sentence less than

death, and that in McKinney v. Ryan, 813 F.3d 798, 819 (9th

Cir. 2015) (en banc), we held that the Arizona Supreme Court

had acted contrary to Lockett and Eddings v. Oklahoma, 455

APELT V. RYAN 79

U.S. 104 (1982), in imposing a causal nexus requirement

when it independently reviewed death sentences.

Specifically, Apelt argues that, although the Arizona

Supreme Court did not cite State v. Ross, 886 P.2d 1354

(Ariz. 1994)—which the Ninth Circuit disapproved of in

McKinney—it did cite State v. Wallace, 773 P.2d 983, 986

(Ariz. 1989), when it rejected his denial of resources claim.24

Ross was not decided until after the Arizona Supreme Court

issued its opinion in Apelt, but Wallace, which also used an

unconstitutional causal nexus requirement, was decided four

years prior to Apelt. Apelt contends that the reference to

Wallace coupled with the Arizona Supreme Court’s

conclusion that it found “no mitigating factors” demonstrates

that the court followed the practice condemned in McKinney

of disregarding certain mitigating factors. Finally, Apelt

argues that even if the Arizona Supreme Court’s rejection of

his mitigation is not based on a lack of causal nexus, it

remains unconstitutional under Eddings and Lockett because

the United States Supreme Court has held that a defendant’s

good behavior is mitigating.

24

Apelt cites the following paragraph from the Arizona Supreme

Court’s opinion:

In support of his motion for continuance, defendant

again failed to explain what evidence was available in

Germany and how it would assist him. He did not offer

any reason why a difficult childhood and lack of

education would be mitigating. See State v. Wallace,

160 Ariz. 424, 427, 773 P.2d 983, 986 (1989) (difficult

family background not a mitigating factor absent a

showing that it had something to do with the murder),

cert. denied, 494 U.S. 1047 (1990).

Apelt, 861 P.2d at 651 (parallel citations omitted).

80 APELT V. RYAN

The district court, which addressed the causal nexus claim

before we issued our en banc opinion in McKinney, denied

Apelt relief. The district court found Apelt’s claim to be

unsupported by the record. The district court noted that the

trial court had expressly stated that it had considered all of

Apelt’s proffered mitigation, and suggested that the trial

court’s statement was “virtually dispositive of Apelt’s claim.”

See Parker v. Dugger, 498 U.S. 308, 314–15 (1991). The

district court continued:

As for the Arizona Supreme Court, its

independent review did not exclude Apelt’s

mitigating evidence from consideration.

Apelt focuses on the court’s statement that

Apelt “failed to advance any credible

argument as to why some factors should be

considered mitigating at all.” Apelt, 861 P.2d

at 653–54. But that statement did not refer to

the entirety of Apelt’s mitigation evidence but

rather to Apelt’s argument that certain

circumstances—namely his cooperation with

the presentence investigation, the plea bargain

offered to Rudi, and Dorn’s immunity—were

in fact mitigating at all. Id. Again, there is no

constitutional requirement that the sentencer

assign proffered mitigating evidence any

particular weight. See Harris [v. Alabama],

513 U.S. [504,] 512 [(1995)].

In McKinney, we explained:

Based on (1) the factual conclusion by the

sentencing judge, which the Arizona Supreme

Court accepted, that McKinney’s PTSD did

APELT V. RYAN 81

not “in any way affect[ ] his conduct in this

case,” (2) the Arizona Supreme Court’s

additional factual conclusion that, if anything,

McKinney’s PTSD would have influenced

him not to commit the crimes, and (3) the

Arizona Supreme Court’s recital of the causal

nexus test for nonstatutory mitigation and its

pin citation to the precise page in Ross where

it had previously articulated that test, we

conclude that the Arizona Supreme Court

held, as a matter of law, that McKinney’s

PTSD was not a nonstatutory mitigating

factor, and that it therefore gave it no weight.

This holding was contrary to Eddings.

813 F.3d at 821. In addition, we held that an Eddings error

was not structural error, and, therefore, McKinney had to

show prejudice. Id. at 821–22.

In Apelt’s case, the Arizona Supreme Court denied his

claim, stating:

We have independently reviewed the record

and agree that the defendant failed to prove

any mitigating factors sufficient to call for

leniency. He has failed to advance any

credible argument as to why some factors

should be considered mitigating at all. We

note that it was in the defendant’s own best

interest to cooperate with the pre-sentence

report writer and behave well at trial. We

further note that, although the state considered

offering Rudi a plea bargain, it did not do so

and Rudi was in fact tried, convicted, and

82 APELT V. RYAN

sentenced to death. Given the necessity of

Anke’s testimony and her lesser involvement

in the conspiracy and murder, her more

lenient treatment is not a mitigating factor.

See State v. Schurz, 176 Ariz. 465, 575,

859 P.2d 156, 167 (1993).25

861 P.2d at 653.

None of the critical factors in McKinney are present in

this case. In particular: (1) the trial court did not state a

factual conclusion that any of Apelt’s proffered mitigation

failed to affect his conduct; (2) the Arizona Supreme Court

did not state a factual conclusion that any of Apelt’s proffered

mitigation would have influenced him not to commit the

crime; and (3) the Arizona Supreme Court did not cite Ross

or Wallace when reviewing Apelt’s mitigation evidence.

Moreover, Apelt’s claim that the Arizona courts applied

an unconstitutional causal nexus requirement is subject to

AEDPA, and, accordingly, the state court’s legal and factual

determinations are entitled to deference. Apelt has not shown

that the Arizona courts failed to follow established federal

law because it appears that the Arizona Supreme Court did

consider all the proffered mitigation evidence. We review

state court decisions on the basis of established federal law as

of the time of the state court’s decision. See Greene v.

25

The pin citation to Schurz is to a statement that the Arizona

Supreme Court “has on occasion considered as a mitigating factor the

disparity between the sentence of a defendant sentenced to death and a

codefendant or accomplice sentenced to some term of imprisonment.

Upon review of the cases, however, it is clear that it is not mere disparity

between the two sentences that is significant, but, rather, unexplained

disparity.” Schurz, 859 P.2d at 167.

APELT V. RYAN 83

Fisher, 565 U.S. 34, 38 (2011). Apelt also has not shown that

the Arizona Supreme Court’s determination is an

unreasonable determination of the facts. Even if the Arizona

Supreme Court’s opinion could be construed as implicitly

applying a causal nexus standard—which we doubt—Apelt

has not shown that reasonable jurists could not conclude

otherwise. See Richter, 562 U.S. at 101 (holding that federal

habeas relief is precluded so long as fairminded jurists could

disagree on the correctness of the state court decision).

Finally, even if Apelt had a stronger argument that the

Arizona Supreme Court applied an unconstitutional causal

nexus requirement, he has failed to make the requisite

showing of prejudice required for federal habeas relief. The

Supreme Court in Eddings, 455 U.S. at 114–15, held that

although the states could not exclude mitigating evidence

from consideration, they were entitled to determine the

weight to be given mitigating evidence. See also Greenway

v. Ryan, 866 F.3d 1094, 1100 (9th Cir. 2017) (per curiam)

(stating “even if we were to determine that the state court did

apply the causal-nexus test in violation of Eddings, there

could have been no prejudice because the aggravating factors

overwhelmingly outweighed all the evidence that Greenway

asserted as mitigating”). In light of the overwhelming

evidence supporting the aggravating factors, a reasonable

jurist could conclude that whatever weight was afforded the

limited proffered mitigation evidence, it would not be

sufficient to call for leniency.26 Apelt has not shown that he

26

As noted by the Arizona Supreme Court, at the time of its opinion,

Apelt had proffered only limited mitigating evidence:

[Apelt] offered his age [25] as a statutory mitigating

factor and the following non-statutory mitigating

84 APELT V. RYAN

is entitled to relief on his claim that the Arizona Supreme

Court applied an unconstitutional causal nexus requirement,

and the district court’s denial of relief on this claim is

affirmed.

2. Apelt’s contention that trial counsel was ineffective

because he failed to challenge Apelt’s competency to

be tried and sentenced is not persuasive.

Apelt correctly notes that the constitution prohibits the

trial of an intellectually disabled person, see Cooper v.

Oklahoma, 517 U.S. 348, 356 (1996), and that to be

competent to stand trial, a person must be able to consult with

counsel with a reasonable degree of rational understanding.

See Dusky v. United States, 362 U.S. 402, 402–03 (1960) (per

curiam). Apelt further asserts that counsel is obligated to

challenge his client’s competency when there is reason to

believe that the client may be incompetent, and that Arizona

Rule of Criminal Procedure 11 provides a mechanism to seek

a competency evaluation.

factors: (1) his remorse as evidenced by his statement

to Anke after Cindy’s funeral that he regretted killing

Cindy; (2) his cooperation with the presentence report

writer; (3) his new-found religious faith; (4) his lack of

a record of serious crime; (5) his honorable discharge

from the army; (6) his good behavior at trial; (7) the

request by Annette and Kathy contained in the pre-

sentence report that he not be sentenced to death; (8)

the fact that Germany does not have the death penalty;

and (9) the fact that Anke was given immunity and

Rudi Apelt was offered a plea bargain.

Apelt, 861 P.2d at 653.

APELT V. RYAN 85

Apelt contends that his counsel’s performance fell below

the required standard under Strickland because Villarreal

failed “to investigate or litigate Mr. Apelt’s competency to

stand trial, despite the wealth of evidence demonstrating Mr.

Apelt suffered from a serious psychiatric disorder, was

suicidal prior to trial, and was being administered

medications known to have a dramatic effect on a patient’s

ability to interact with counsel and understand the

proceedings.” Apelt points out that Dr. Fisher testified that

the drugs Apelt was given during his pre-trial incarceration

were “generally considered to possess significant central

nervous system (CNS) depressant effects.” Apelt argues that

because Villarreal knew, or should have known, of Apelt’s

over-medication, hospitalization, and placement under suicide

watch while awaiting trial, he was ineffective in failing to

investigate Apelt’s competency to be tried and sentenced.

Apelt further asserts that Villarreal had no strategy for not

investigating Apelt’s competence, and thus his performance

fell below the minimum professional standard set forth in

Strickland.

These claims of IAC are subject to AEDPA’s standard of

review.27 The district court found that “the record contains no

support for the proposition that Apelt was not competent to

stand trial.” It notes that Villarreal did not neglect to consider

Apelt’s competence. Rather, co-counsel traveled to Germany

27

Arizona argues that Apelt’s allegation that he was not competent to

be sentenced, as contrasted to his claim that he was not competent to be

tried, was not presented to the state courts, and accordingly, the federal

courts are procedurally barred from considering the allegation. The

district court, however, noted that Arizona had conceded that the claims

shared the same factual nexus and considered the claims together. As a

matter of judicial efficiency, we choose to consider the claims together

and to deny them.

86 APELT V. RYAN

before the trial but failed to find evidence that would support

a motion to determine competency. Also, Apelt was actively

involved in his defense and the trial proceedings. It appears

that Apelt’s behavior at trial and his testimony gave no cause

for Villarreal to doubt his competence.28

In denying Apelt’s claim of lack of competence to stand

trial, the district court recognized that Apelt had been

prescribed powerful drugs prior to and during his trial, but

held that this fact in itself did not render him incompetent and

that there was no evidence “that the drugs did in fact affect

his competence.” See Shan Wei Yu, 484 F.3d at 985. The

district court similarly found that Apelt’s placement on

suicide watch and his history of mental health problems were

not sufficient to show he was incompetent, particularly as he

“failed to identify an instance in which he behaved

irrationally, appeared not to understand the proceedings, or

did not communicate effectively with Villarreal.”

Apelt’s claims turn not on whether he was, in fact,

competent, but whether Villarreal was ineffective under the

Strickland standard in failing to question Apelt’s competence.

In a federal habeas proceeding, a state court ruling on IAC is

entitled to double deference. Pinholster, 563 U.S. at 189.

28

The district court commented that Apelt: (a) “filed a pro per motion

to change counsel” and complained that counsel failed to adequately

communicate with him; (b) “authored jailhouse notes to his brother which

indicated Apelt was keenly aware of the factual details of his case,

including the evidence against him, and was rationally communicating

with counsel about his defense”; (c) “notified Villarreal that certain jurors

had observed him being escorted from the courtroom wearing shackles”;

and (d) testified at length and in detail about his travels, the events leading

to his marriage, and the purchase of the life insurance policy as an

investment for their children.

APELT V. RYAN 87

Our review of the record fails to disclose any incident or

exchange that would have put Villarreal on notice that he

should question Apelt’s competency to stand trial. Even if

Villarreal should have, but failed to, pay attention to Apelt’s

medication and treatment while incarcerated pending trial,

this would not necessarily have raised questions of

competency in light of Apelt’s active and coherent

involvement in the proceedings. Because we find that Apelt

has not shown that the state courts unreasonably denied his

claim of incompetence to stand trial, we affirm the district

court’s denial of relief on Apelt’s claims that he was

incompetent to stand trial or be sentenced.

IV.

It has been 29 years since Apelt murdered his wife of less

than two months. We have carefully reviewed the briefs and

records in this case and conclude that Apelt’s federal habeas

petition should be denied. We reject Arizona’s arguments

that we lack jurisdiction to consider Apelt’s claim of

ineffective assistance of counsel at sentencing, and we agree

with the district court that Apelt was denied effective

assistance of counsel at sentencing. However, we find that

Apelt has failed to show that the state courts’ determination

that counsel’s deficient performance was not prejudicial was

unreasonable: there are reasonable arguments that the

proffered additional mitigating evidence would not have

changed Apelt’s sentence. Accordingly, the district court’s

grant of the petition is vacated.

We reject all of Apelt’s challenges to his conviction and

sentence. He has not shown that, under the extant federal law

at the time, the Arizona courts violated his constitutional

rights by denying counsel funding to investigate mitigating

88 APELT V. RYAN

evidence. See Caldwell, 472 U.S. at 323 n.1; Williams,

441 F.3d at 1054. He has not shown that he is entitled to

relief under Atkins because the record fairly supports the state

courts’ determination that he does not suffer from significant

deficits in adaptive behavior. We have reviewed the Arizona

Supreme Court’s opinion pursuant to our en banc opinion in

McKinney, 813 F.3d 798, and conclude that the court did not

impose an unconstitutional causal nexus requirement when it

affirmed Apelt’s capital sentence. Finally, we conclude that

Apelt has not shown that his counsel was ineffective in failing

to question his competence to stand trial and be sentenced.

The district court’s grant of the writ is vacated and

Apelt’s federal habeas petition is denied.