Robert Walden v. David Shinn

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT LEE WALDEN, No. 08-99012

Petitioner-Appellant,

D.C. No.

v. 4:99-CV-00559-RCC

DAVID SHINN, Director,

Respondent-Appellee. OPINION

Appeal from the United States District Court

for the District of Arizona

Raner C. Collins, District Judge, Presiding

Argued and Submitted December 15, 2020

San Francisco, California

Filed March 12, 2021

Before: Sidney R. Thomas, Chief Judge, and Jay S. Bybee

and Sandra S. Ikuta, Circuit Judges.

Opinion by Chief Judge Thomas

2 WALDEN V. SHINN

SUMMARY*

Habeas Corpus / Death Penalty

The panel affirmed the district court’s denial of Robert

Lee Walden’s habeas corpus petition challenging his Arizona

state conviction for rape and murder and his death sentence.

The panel held that the district court properly declined to

grant habeas relief as to Walden’s claim based on the trial

court’s denial of his motion to sever the counts by victim,

where Walden failed, in his first petition for post-conviction

relief or his habeas petition, to assign any federal

constitutional error to the Arizona Supreme Court’s

alternative dispositive ruling that evidence concerning each

attack would have been admissible in separate trials on each

attack.

The panel held that the district court properly declined to

grant habeas relief as to Walden’s claim based on the trial

court’s admission of eyewitness identifications. The panel

held that the state court’s rejection of Walden’s due process

challenge to the photographic lineup used was consistent with

clearly established federal law and rested on factual findings

that were objectively reasonable. The panel held that the

state court did not rule contrary to, nor unreasonably apply,

clearly established federal law when it determined that the

police did not taint two victims’ identifications by informing

each victim, after she had chosen Walden’s photo, that the

police had a man in custody, or by providing one victim with

*

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

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

WALDEN V. SHINN 3

an article concerning Walden’s arrest for another assault and

a homicide. The panel also held that the Arizona Supreme

Court reasonably declined to infer improper police influence

from the fact that one witness selected Walden’s photo during

an off-the-record conversation with a detective after she had

tentatively identified another individual as resembling one of

two men she had seen at one victim’s apartment complex.

Because the Arizona Supreme Court reasonably determined

that the three identifications were not the product of

impermissibly suggestive police procedures, there was no

need for the panel to assess the reliability of each

identification under the totality of the circumstances. The

panel rejected Walden’s challenge to one victim’s

identification insofar as it rested on a factual basis that

Walden failed to present to the Arizona Supreme Court.

The panel held that McKinney v. Ryan, 813 F.3d 798 (9th

Cir. 2015) (en banc), has no impact on the claim in Walden’s

habeas petition that because the state trial court had prepared

a special verdict before the submission of evidence, that court

failed to properly consider his proffered mitigation evidence

at sentencing. The panel wrote that because Walden did not

in that claim identify causal nexus error by the Arizona

Supreme Court, which conducted an independent review of

Walden’s mitigation evidence, Walden’s belated claims of

causal nexus error are not cognizable on appeal.

The panel held that the district court properly denied

Walden leave to amend his habeas petition to add five

previously-withdrawn ineffective-assistance-of-counsel

claims on the grounds that those claims are untimely and do

not relate back to his timely-filed claims and that Walden

unduly delayed seeking leave to amend. The panel also held

that Walden is not entitled to equitable tolling.

4 WALDEN V. SHINN

The panel held that the district court properly concluded

that the trial court’s admission of 19 purportedly “gruesome”

crime scene and autopsy photos does not entitle Walden to

habeas relief because the state court’s decision did not

involve an objectively unreasonable application of clearly

established Supreme Court precedent or an objectively

unreasonable determination of the facts.

COUNSEL

Stan S. Molever (argued), Leticia Marquez and Kori Lorick,

Assistant Federal Public Defenders; Jon M. Sands, Federal

Public Defender; Office of the Federal Public Defender,

Tucson, Arizona; for Petitioner-Appellant.

Lacey Stover Gard (argued), Chief Counsel, Capital

Litigation Section; Mark Brnovich, Attorney General, Office

of the Attorney General, Tucson, Arizona; for Respondent-

Appellee.

OPINION

THOMAS, Chief Judge:

Robert Lee Walden was convicted of rape and murder by

an Arizona jury and was sentenced to death by the presiding

state court judge. Walden appeals the district court’s denial

of his petition for a writ of habeas corpus under 28 U.S.C.

§ 2254. We have jurisdiction under 28 U.S.C. §§ 1291 and

2253. We review the district court’s denial of habeas relief

de novo, see Dixon v. Ryan, 932 F.3d 789, 795 (9th Cir.

2019), and we affirm.

WALDEN V. SHINN 5

I

The factual and procedural history of this case spans

nearly three decades.1 A summary of the history relevant to

resolving the five claims before us follows.

A

The morning of May 4, 1991, at an apartment complex in

Tucson, Arizona, Walden forced Vicki Blanar into an empty

community laundry room at knife point; there, he forcibly

removed her clothing, fondled her breasts, and raped her

while holding his knife against her neck. See Walden, 905

P.2d at 982. During and after the assault, he repeatedly

threatened to kill her. See id.

Not long after raping Blanar and at a nearby apartment

complex during the afternoon of May 15, Walden—

uniformed in a red shirt and blue pants—tricked Kristina

Velasco into allowing him into her apartment, where she

lived alone, by claiming he was there to perform maintenance

work. See id.; see also id. at 984–85 (noting that the Blanar

and Velasco attacks “were in the same general area”). Once

inside, he attacked her, and a struggle followed. See id. at

982. Walden attempted, but failed, to wrap both a telephone

and hair dryer cord around Velasco’s neck. See id. He

repeatedly threatened to kill Velasco if she screamed or

continued to resist. See id. (noting that Walden told Velasco,

“I’m going to kill you. I can do it,” when she tried to escape).

1

The facts of Walden’s crimes are detailed in the Arizona Supreme

Court’s opinion affirming Walden’s convictions and sentence on direct

appeal. See State v. Walden (Walden), 905 P.2d 974, 982–83 (Ariz. 1995).

6 WALDEN V. SHINN

After dragging Velasco to her bedroom, Walden used a

telephone cord to tie her arms behind her back. See id. He

then blindfolded and gagged her, fondled her breasts, pulled

off her shoes and jeans, digitally penetrated her, and had

forcible intercourse with her. See id. Afterward, he ran an

object down her back, said it was a knife, and threatened to

kill her if she reported the rape. See id. at 982–83.

About a month later, on June 13 between 1:30 and

2:30 p.m., Walden raped and killed Miguela Burhans in her

bedroom. See id. at 983. Burhans was home alone in an

apartment building “next to the one where Velasco . . . was

assaulted,” Walden v. Schriro (Walden II), No. CV 99-559-

TUC-RCC, 2008 WL 2026217, at *2 (D. Ariz. May 9, 2008),

and “in the same general area” as the Blanar attack. Walden,

905 P.2d at 985. Upon arriving home, Burhans’s husband

found his wife’s body “face down” on their bedroom floor “in

a pool of blood, unclothed from the waist down.” Id. at 983.

A knife sheath and blood stains were on the bed next to

Burhans’s body, and scattered throughout the bedroom were

fragments of a broken clay table lamp that had previously sat

intact on the Burhans’s nightstand.

Burhans “died from a combination of strangulation and

two deep cuts to her throat that severed her carotid artery.”

Id. at 997. The stab wounds were not instantaneously fatal.

Id. (noting that Burhans “would have been conscious for

several minutes” after the stabbing). Blood “splattered

around the room[] indicat[ed] that [Burhans] was moving

about the room while injured.” Id. The “electrical cord used

to strangle her”—from the broken lamp—“was still around

her neck,” and her “hand was still intertwined in it,

demonstrating that she had been conscious when Walden

WALDEN V. SHINN 7

wrapped it around her neck and was struggling to loosen it.”

Id.

Compelling evidence led to Walden’s arrest on June 27,

1991, and subsequent indictment on July 5 for all three

attacks: During the spring and summer of 1991, Walden

wore a red shirt and blue pants as his daily work uniform to

conduct termite and pest control services in homes and

apartments around Tucson. Id. at 982. Walden also lived

“within blocks” of where Velasco and Burhans were

assaulted. Id. at 985. Most significantly, fingerprint evidence

tied Walden to both the Velasco and Burhans crime scenes,

while identification evidence pointed to Walden as the

perpetrator of all three attacks. Id. at 983, 985–86. Several

weeks after their respective assaults, Blanar and Velasco each

selected Walden’s photo out of the same six-person lineup.

Not quite a month after the murder, Elaine Jordan, who had

visited another resident at Burhans’s complex on June 13,

identified Walden as one of two men whom she had seen at

the complex around the time of the murder; she told law

enforcement that this man was wearing what she thought was

a maintenance uniform and carrying some sort of equipment

that had a thin tube attached to it. See id. at 983, 985–86.

B

After being indicted on 14 counts, including one first-

degree murder count, Walden made and lost two pre-trial

motions that are at issue here.

First, Walden moved to sever the counts by victim under

state law. He argued that the three attacks were too dissimilar

to satisfy the standards for joinder under Arizona Rule of

Criminal Procedure (“Rule”) 13.3(a)(2) (permitting joinder

8 WALDEN V. SHINN

where the offenses were “based on the same conduct” or

“otherwise connected together in their commission”) and

Rule 13.3(a)(3) (permitting joinder where the offenses were

“alleged to have been a part of a common scheme or plan”)

and that he was, thus, entitled to severance as of right under

Rule 13.4(b).2 He further argued that severance was

“necessary to promote a fair determination” of his guilt or

innocence under Rule 13.4(a). The trial court denied

severance, but instructed the jury to “decide each charge on

the evidence and law applicable to it uninfluenced by [its]

decision as to the other charges.”

Second, Walden moved to suppress the identifications

made by Blanar, Velasco, and Jordan, arguing that the police

procedures used to obtain them were unduly suggestive and

would prejudice any subsequent in-court identifications, in

violation of due process. Walden faulted law enforcement for

using a photo array that included individuals whose features

differed materially from the victim’s descriptions of Walden.

Walden further contended that the police tainted the victims’

identifications by informing them that their assailant had been

arrested after each had selected Walden’s photo and by

providing Velasco with an article about Walden’s arrest for

other sexual assaults and a homicide. Walden also sought to

undermine Jordan’s identification on the ground that she

picked his photo only after having an off-the-record

conversation with a detective.

After an evidentiary hearing, the trial court also denied

this motion. The court concluded that the lineup photos were

2

Under Rule 13.4(b), a defendant was “entitled as of right to sever

offenses joined only by virtue of Rule 13.3(a)(1),” which permitted joinder

of offenses that were “of the same or similar character.”

WALDEN V. SHINN 9

“responsibly chosen”; that it was “abundantly clear” that the

victims’ identifications did not result from “any police

activity,” but were “instead the product of their painfully

clear recollections of their experiences”; and that the police

did not use “unlawful means” to obtain Jordan’s

identification. However, the court instructed the jury that it

could not consider any in-court identification of Walden

unless it determined “beyond a reasonable doubt” that the

identification “was based upon the witness’ independent

recollection of the defendant and that it was not derived from

suggestive circumstances in the courtroom or any previous

pretrial identification.”

C

During Walden’s trial in July 1992, the jury heard nine

days of testimony. The State’s evidence as to all three sets of

counts was strong. Blanar and Velasco each confirmed her

out-of-court identification of Walden and denied having any

doubt that Walden raped her. See Walden, 905 P.2d at 985.

In support of the Burhans’s charges, Jordan identified

Walden, likewise without “any doubt,” as the maintenance

man that she saw carrying blowing or spraying equipment at

Burhans’s complex around the time of the murder. Walden’s

boss and a coworker confirmed that Walden’s company truck

was outfitted with pest control equipment resembling the

equipment that Jordan had described. The State also

introduced expert fingerprint evidence that Walden’s right

ring finger matched a fingerprint lifted from one of the shoes

that Velasco’s attacker had pulled off her foot before raping

her, and that a second print lifted from the same shoe matched

Walden’s right middle finger. The State introduced further

expert fingerprint evidence that a print that police lifted from

10 WALDEN V. SHINN

the nightstand in Burhans’s bedroom matched Walden’s left

thumb.

Finally, in support of the Burhans counts, Dr. John

Howard, the forensic pathologist who visited the crime scene

and conducted the autopsy, testified at length regarding the

extent of Burhans’s injuries and the cause of her death: the

“combined effects” of strangulation and two deep cuts to her

throat by a sharp instrument, such as a knife, that severed her

carotid artery. Dr. Howard explained these injuries with the

aid of 19 crime scene and autopsy photos. As relevant to this

appeal, Walden objected to the admission of these photos on

undue prejudice grounds, given that he repeatedly offered to

stipulate to Burhans’s injuries and the cause of her death to

avoid their admission. See id. at 989. The trial court

nevertheless admitted some of the photos, reasoning that they

were “[c]learly relevant” and that their “utility with regard to

contested issues outweigh[ed] any tendency to create

prejudice.” However, the trial court also excluded 52 photos,

including—by the defense’s admission—“the most

gruesome” ones.

Walden’s counsel called seven witnesses to advance a

couple defense theories, including that Walden had an alibi as

to each set of counts, and that Blanar, Velasco, and Jordan

must have misidentified him. In connection with the latter

theory, Walden called an expert who testified regarding the

fallibility of human perception and memory. In closing, the

defense also asserted that the State’s fingerprint experts were

mistaken.

The afternoon following the conclusion of closing

arguments, the jury returned guilty verdicts on all 14 counts,

WALDEN V. SHINN 11

finding Walden guilty of felony, but not premeditated,

murder. See id. at 983.

D

At sentencing, the court found three aggravating factors:

Walden (i) “had been convicted of another offense for which

life imprisonment was imposable”; (ii) “had been convicted

of a felony involving the use or threat of violence”; and (iii)

murdered Burhans “in an especially cruel, heinous, or

depraved manner.” Id. As to the third factor, the court relied

on Dr. Howard’s testimony and “the fact the victim’s blood

was splattered around the room” to conclude that there was a

protracted struggle between Walden and Burhans, during

which he rendered her helpless; inflicted “gratuitous

violence” on her body; and caused her substantial physical

and mental suffering during the “several minutes of

consciousness” that she would have experienced after Walden

strangled and stabbed her.

After considering the defense’s mitigation evidence, the

court concluded that the evidence Walden “offer[ed] in

mitigation concerning his abusive and neglectful childhood,

being a model prisoner, his age, and his unhappy life

experiences [were] not sufficiently substantial to call for

leniency,” and sentenced Walden to death. Id. at 999.

E

In a reasoned opinion, the Arizona Supreme Court

affirmed Walden’s convictions and sentences. Id. at 982. As

is relevant here, Walden raised, but did not prevail on, the

following issues in his direct appeal: (i) the denial of

severance deprived him of a fundamentally fair trial on the

12 WALDEN V. SHINN

Burhans counts; (ii) the admission of the Blanar, Velasco, and

Jordan identifications, which were both unreliable and the

product of unduly suggestive police procedures, further

violated his due process rights; (iii) the admitted crime scene

and autopsy photos further violated his due process rights

because they were neither relevant to any contested issue at

trial, nor “necessary” to illustrate the medical examiner’s

testimony, so their only effect was to “inflame the jury”; and

(iv) the trial court’s failure to properly consider Walden’s

proffered mitigation, including his father’s criminal history,

“which may well have caused [his] conduct,” “because of a

previously formed decision to impose the death penalty,”

violated Eddings v. Oklahoma, 455 U.S. 104 (1982).3 See

Walden, 905 P.2d at 984–86, 989–90, 998–99.

In affirming Walden’s death sentence, the Arizona

Supreme Court conducted an independent review of

Walden’s mitigation evidence. Id. at 999. The court

concluded that Walden’s “difficult family background” was

“not a mitigating circumstance” because Walden did “not

explain how this had anything at all to do with the rapes and

the murder.” Id. (citing State v. Wallace, 773 P.2d 983, 986

(Ariz. 1989), for the rule that “[a] difficult family background

is a relevant mitigating circumstance if a defendant can show

that something in that background had an effect or impact on

his behavior that was beyond the defendant’s control”).

3

Eddings holds that a sentencer may “not be precluded from

considering, as a mitigating factor, any aspect of a defendant’s character

or record and any of the circumstances of the offense that the defendant

proffers as a basis for a sentence less than death.” Id. at 110 (quoting

Lockett v. Ohio, 438 U.S. 568, 604 (1978)).

WALDEN V. SHINN 13

F

On April 15, 1996, Walden’s convictions and sentences

became final when the United States Supreme Court denied

his petition for certiorari. See Walden v. Arizona, 517 U.S.

1146 (1996) (Mem.). Fifteen days later, Walden filed his first

notice for post-conviction relief (“PCR”) in state court.

Overlapping and long-running state PCR and federal habeas

proceedings followed.

1

After Walden filed his first state PCR petition, raising

arguments that are not at issue here, Walden filed a first

amended PCR petition which sought relief based solely on

the denial of severance. Relying on an intervening change in

Arizona law concerning the proper interpretation of Arizona’s

joinder and severance rules, Walden argued that the Arizona

Supreme Court erred in relying on a test, since overruled as

a matter of state law, to uphold the denial of severance in his

case. He further contended that: (1) the high court erred

under state evidentiary law in holding, in the alternative, that

the denial of severance did not prejudice him because the

evidence concerning each victim would have been cross-

admissible in separate trials on each set of counts, see

Walden, 905 P.2d at 985 (“In any event, even if severed, each

of the sexual assaults would have been admissible in the

separate trials.”); (2) Walden’s appellate counsel did not

adequately brief the severance issue; and (3) joinder

prejudiced Walden on appeal because it “forced” appellate

counsel to “devote a significant portion of his brief to argue

issues on the non-capital offenses.”

14 WALDEN V. SHINN

The PCR court dismissed the amended petition. It

concluded, inter alia, that the Arizona Supreme Court’s

alternative cross-admissibility ruling was correct as a matter

of state law because the other crimes evidence would have

been admissible on the questions of “mistaken identity and

alibi.” The Arizona Supreme Court denied review in October

1999.

2

In November 1999, Walden initiated federal habeas

proceedings in the United States District Court for the District

of Arizona by filing a pro se petition. The court appointed

the Federal Public Defenders as counsel, and issued two

orders directing that the amended petition “include all known

claims of constitutional error or deprivation.”

Walden filed his amended habeas petition (the

“operative” or “original” petition) on August 16, 2000. That

petition raised dozens of claims. Nine remain at issue in the

instant appeal. As on direct appeal in state court, Walden

asserted constitutional violations arising from the trial court’s

(i) denial of severance; (ii) admission of the Blanar, Velasco,

and Jordan identifications; (iii) admission of “gruesome”

crime scene and autopsy photos that were “neither relevant to

a disputed issue at trial regarding the cause of death, sequence

of events, premeditation or any other theory of the case” nor

“necessary to illustrate medical testimony regarding the

victim’s injuries”; and (iv) purported failure to consider all of

Walden’s proffered mitigation (“Claim 31”). In connection

with the severance claim, Walden’s amended habeas petition,

unlike his amended PCR petition, did not assign error to the

Arizona Supreme Court’s alternative basis for upholding the

WALDEN V. SHINN 15

denial of severance—the evidence would have been cross-

admissible in separate trials under state law.

In the amended petition, Walden also presented, for the

first time, five ineffective assistance of counsel (“IAC”)

claims. He alleged that trial counsel was ineffective in (v)

opening the door to the admission of Velasco’s 911 call

reporting the rape and for failing to object to that call’s

admission on prejudice grounds, and (vi) opening the door to

the admission of the 911 call that Burhans’s husband placed

after discovering her dead body and for failing to object to

that call’s admission on prejudice grounds. Walden further

alleged that sentencing counsel was ineffective for failing to

(vii) show the causal connection between the mitigation

presented and Walden’s crimes; (viii) object to, move for a

continuance based on, or show the causal connection

between his father’s criminal history and his crimes; and

(ix) thoroughly investigate and present mitigation evidence.

On October 16, 2000, Walden filed a court-ordered

statement of exhaustion, identifying “when and where each

ground of relief raised in the amended habeas petition was

presented in the state courts.” That same day, Walden,

without seeking the court’s leave, withdrew, inter alia, the

five IAC claims enumerated above from his petition. His

withdrawal notice explained that he was presenting those

claims in state court. Consistent with that representation, his

federal habeas counsel simultaneously filed a second PCR

notice in state court listing the withdrawn claims.

3

Back in state court, Walden, represented by new PCR

counsel, did not file his second PCR petition presenting the

16 WALDEN V. SHINN

withdrawn IAC claims until January 29, 2002.4 The PCR

court dismissed that petition in July 2002, concluding that

(i) Walden’s newly-presented mitigation evidence did not

“show by clear and convincing evidence that no reasonable

judge would have sentenced him to death”; and (ii) Walden’s

IAC claims were “precluded” because they should have

been raised in his first PCR proceeding under Arizona

Rule of Criminal Procedure 32.2(a)(3). Walden sought

reconsideration of the first, but not the second, conclusion,

and the PCR court denied his motion. On April 21, 2004, the

Arizona Supreme Court denied review.

4

Three months after the state PCR proceedings on his

withdrawn IAC claims concluded and nearly four years after

he had withdrawn those claims from his habeas petition,

Walden moved for leave to amend his habeas petition to

reintroduce those claims. In March 2005, the district court

denied his motion, holding both that amendment would be

futile and that Walden had unduly delayed seeking

amendment. With respect to futility, the court explained that

Walden procedurally defaulted his IAC claims because he did

not raise them in his initial state PCR proceedings and that

PCR counsel’s IAC could not excuse the default under then-

prevailing Supreme Court precedent. See Coleman v.

Thompson, 501 U.S. 722, 755 (1991). As to undue delay, the

court disagreed with Walden’s representation that he had no

choice but to withdraw his unexhausted IAC claims. The

court reasoned that the claims “were not truly ‘unexhausted,’”

4

Walden filed a proposed oversized petition on November 5, 2001,

with a motion to expand the page limit from 40 pages to 108 pages. The

PCR court denied the motion in December 2001.

WALDEN V. SHINN 17

but rather “‘technically exhausted’ [and] procedurally

defaulted”; therefore, Walden should have left the claims in

the petition and briefed whether he could “overcome any

alleged default of the Withdrawn Claims.” Instead of

“comply[ing] with th[e] [c]ourt’s order to include all of his

known claims in his Amended Petition,” Walden, “without

leave of the [c]ourt,” “withdr[ew] the claims and file[d] a

successive [PCR] petition.” Four years later, he sought “to

add them again in the same procedural posture as when they

were withdrawn—procedurally defaulted.” Based on this

history, the court found that Walden “made a tactical decision

to circumvent the process established by the rules and th[e]

[c]ourt,” establishing undue delay.

After the parties briefed the merits of the exhausted

claims, the district court denied relief. See Walden II, 2008

WL 2026217, at *44. The court rejected, as relevant here,

Walden’s challenges to: (i) the denial of severance; (ii) the

admission of the Blanar, Velasco, and Jordan identifications;

(iii) the admission of the crime scene and autopsy photos; and

(iv) the trial court’s purported failure to consider Walden’s

mitigation evidence at sentencing. See id. at *4–12, 19–21,

37–39.

5

While Walden’s appeal from the district court’s denial of

habeas relief was pending in this Court, the Supreme Court

decided Martinez v. Ryan, 566 U.S. 1 (2012), which

“qualifie[d] Coleman” by holding that PCR counsel’s IAC “at

initial-review collateral proceedings may establish cause for

a prisoner’s procedural default of a claim of ineffective

assistance at trial.” Id. at 9. Several months later, Walden

moved this Court for a limited remand to permit the district

18 WALDEN V. SHINN

court to reconsider his IAC claims in light of Martinez. A

motions panel granted the limited remand as to the five IAC

claims at issue here.

Subsequently, a two-judge panel of this Court, at the

district court’s request, expanded the limited remand to

include consideration of whether Walden’s petition was

affected by McKinney v. Ryan, 813 F.3d 798, 809 (9th Cir.

2015) (en banc) (holding that the Arizona Supreme Court

applied an unconstitutional “causal nexus” test to non-

statutory mitigation evidence by refusing to consider, “as a

matter of state law,” such evidence unless it was causally

connected to the defendant’s crime).

6

During the remand proceedings, Walden sought to excuse

the procedural default of his five IAC claims under Martinez,

but the State countered that there was no need to run the

Martinez analysis because those claims were untimely under

AEDPA’s one-year statute of limitations, see 28 U.S.C.

§ 2244(d)(1), and did not satisfy Federal Rule of Civil

Procedure (“Rule”) 15(c)’s relation-back standard for

amending outside the limitations period. In reply, Walden

argued that the proposed claims did relate back to certain

claims in his operative petition and, alternatively, that

applying Rule 15(c) to deny federal review of his claims

would be “inequitable” under Martinez.

Reconsidering its 2005 denial of leave to amend, the

district court agreed with the State that amendment remained

futile. The court explained that Walden’s proposed IAC

claims were untimely under AEDPA and that Walden could

not avoid the time bar because he did not invoke “any

WALDEN V. SHINN 19

grounds for equitable tolling,” and his proposed claims did

not relate back to any of his timely claims. The court also

reaffirmed its prior finding “regarding [Walden’s] tactical

decision to circumvent th[e] [c]ourt’s process” by

withdrawing his IAC claims, “resulting in undue delay.”

In the same order, the court further rejected Walden’s

argument that McKinney compels relief on Claim 31 of his

operative petition. The court observed that Claim 31 did not

allege that the trial court or the Arizona Supreme Court

refused to consider Walden’s proffered mitigation under the

causal nexus test at issue in McKinney. Thus, the causal

nexus claim presented for the first time in Walden’s

supplemental briefing on remand was untimely.

7

In its two orders denying habeas relief, the district court

granted a certificate of appealability with respect to the denial

of severance (“Claim 1”), see Walden II, 2008 WL 2026217,

at *44; the challenged identifications (“Claim 2”), see id.; and

the resolution of Claim 31 regarding the trial court’s

consideration of mitigation evidence (“Claim 3” on appeal).

We expanded the certificate to include two additional issues:

whether the district court erred in denying relief on the five

IAC claims remanded for reconsideration in light of Martinez

(“Claim 4”), and on the claim concerning the crime scene and

autopsy photos (“Claim 5”).

II

Walden’s habeas petition is subject to review under the

Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”). See Murray v. Schriro, 745 F.3d 984, 996

20 WALDEN V. SHINN

(9th Cir. 2014). AEDPA limits “the availability of federal

habeas relief” for “claims previously ‘adjudicated on the

merits’ in state-court proceedings.’” Harrington v. Richter,

562 U.S. 86, 92 (2011). A habeas petitioner cannot secure

relief on such claims unless the state court’s adjudication:

(1) resulted in a decision that was contrary to,

or involved an unreasonable application of,

clearly established Federal law, as determined

by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in

light of the evidence presented in the State

court proceeding.

28 U.S.C. § 2254(d).

Under § 2254(d), a state prisoner “must show that the

state court’s ruling on the claim being presented in federal

court was so lacking in justification that there was an error

well understood and comprehended in existing law beyond

any possibility for fairminded disagreement.” Harrington,

562 U.S. at 103. “[C]learly established federal law,” within

the meaning of § 2254(d)(1), is “limited to Supreme Court

authority that ‘squarely addresses’ the claim at issue and

provides a ‘clear answer.’” Yun Hseng Liao v. Junious, 817

F.3d 678, 689 (9th Cir. 2016) (quoting Wright v. Van Patten,

552 U.S. 120, 125–26 (2008) (per curiam)). And “an

unreasonable application of federal law is different from an

incorrect application of federal law.” Harrington, 562 U.S.

at 101 (citation omitted). Similarly, under § 2254(d)(2), a

state court’s factual determination is “not unreasonable

merely because the federal habeas court would have reached

WALDEN V. SHINN 21

a different conclusion.” Wood v. Allen, 558 U.S. 290, 301

(2010). Section 2254(d)(2) requires federal courts to “accord

the state trial court substantial deference.” Brumfield v. Cain,

576 U.S. 305, 314 (2015). “A state court’s factual findings

are unreasonable if ‘reasonable minds reviewing the record’

could not agree with them.” Ayala v. Chappell, 829 F.3d

1081, 1094 (9th Cir. 2016) (quoting Brumfield, 576 U.S. at

314).

Last, AEDPA prohibits federal courts from granting

habeas relief on claims for which the petitioner has not

“exhausted the remedies available in the courts of the State.”

28 U.S.C. § 2254(b)(1)(A). “Exhaustion requires that a

petitioner fairly present his federal claims to the highest state

court available.” Davis v. Silva, 511 F.3d 1005, 1008 (9th

Cir. 2008) (cleaned up). In turn, “[f]air presentation requires

that the petitioner describe in the state proceedings both the

operative facts and the federal legal theory on which his claim

is based so that the state courts have a fair opportunity to

apply controlling legal principles to the facts bearing upon his

constitutional claim.” Id. at 1009 (quotation marks omitted);

accord Robinson v. Schriro, 595 F.3d 1086, 1101 (9th Cir.

2010) (exhaustion requires “present[ing] both the factual and

legal basis for the claim”).

III

Applying these principles, we agree with the district court

that Walden is not entitled to habeas relief on any of his

claims.

22 WALDEN V. SHINN

A

The district court properly declined to grant habeas relief

as to Claim 1, which was based on the trial court’s denial of

severance. See Walden II, 2008 WL 2026217, at *4–5.

Given the Arizona Supreme Court’s alternative ruling that

evidence concerning each attack would have been admissible

in separate trials on each attack, see Walden, 905 P.2d at 985,

and Walden’s failure to assign any federal constitutional error

to that dispositive ruling in his first PCR petition or his

habeas petition, we affirm the denial of habeas relief as to

Claim 1.

1

As a preliminary matter, we have made clear that the

Supreme Court’s observation in United States v. Lane, 474

U.S. 438, 446 n.8 (1986), that “misjoinder would rise to the

level of a constitutional violation only if it results in prejudice

so great as to deny a defendant his Fifth Amendment right to

a fair trial” is dicta and does not “establish a constitutional

standard binding on the states.” Collins v. Runnels, 603 F.3d

1127, 1131 (9th Cir. 2010). The State accordingly argues that

Walden’s claim for habeas relief is barred by the absence of

clearly established federal law. Walden, in turn, asserts that

AEDPA is inapplicable because the state courts failed to

address the federal constitutional standard when denying his

joinder claim. We decline to resolve this dispute, as even

under the standards we have developed for analyzing joinder

challenges, Walden is not entitled to relief.

“We may grant habeas relief on a joinder challenge only

if the joinder resulted in an unfair trial.” Davis v. Woodford,

384 F.3d 628, 638 (9th Cir. 2004) (quotation marks omitted).

WALDEN V. SHINN 23

“The requisite level of prejudice is reached only if the

impermissible joinder had a substantial and injurious effect or

influence in determining the jury’s verdict.” Id. (quotation

marks omitted). In evaluating the prejudice due to joinder (if

any), we “focus[] particularly on cross-admissibility of

evidence,” id.—that is, whether evidence of an offense would

be admissible in a separate trial on another offense, and vice

versa. A finding of “cross-admissibility dispels the

prejudicial impact of joining all counts in the same trial” for

the simple reason that “[t]he jury would have heard the

evidence in any event.” Sandoval v. Calderon, 241 F.3d 765,

772 (9th Cir. 2000); see also Davis, 384 F.3d at 638–39

(denying habeas relief on a joinder challenge where, inter

alia, the evidence in support of both non-capital and capital

charges was “cross-admissible on the issues of identity and

intent”).

2

On direct appeal, the Arizona Supreme Court held that the

trial court did not abuse its discretion in declining to sever the

counts by victim because there were sufficient similarities

among the three attacks to permit joinder under the relevant

state rules of criminal procedure. Walden, 905 P.2d at

984–85 (citing Ariz. R. Crim. Proc. 13.3(a)(3), 13.4(b)). The

court held, in the alternative, that “even if severed, each of the

sexual assaults would have been admissible in the separate

trials.” Id. at 985 (citing State v. Day, 715 P.2d 743, 747

(Ariz. 1986) (“Since evidence of [other assaults] would have

been admissible at separate trials, had they been granted,

severance would not have ameliorated any prejudice faced by

the appellant. Therefore, the trial court did not err by

refusing to grant severance.”)). The alternative cross-

admissibility holding forecloses Walden’s argument that

24 WALDEN V. SHINN

joinder rendered his trial fundamentally unfair. See Sandoval,

241 F.3d at 772.

Bean v. Calderon, 163 F.3d 1073 (9th Cir. 1998), is not

to the contrary. In Bean, we concluded that the joinder of two

murder cases, one of which was stronger than the other,

deprived the petitioner of a fair trial on the weaker case. Id.

at 1083. Unlike this case, however, the California Supreme

Court in Bean concluded that the evidence at issue was not

cross-admissible. Id. Thus, Bean is clearly distinguishable.

3

Whether the Arizona Supreme Court’s cross-admissibility

ruling was contrary to or involved an unreasonable

application of clearly established federal law is not before us.

Walden never assigned any federal error to that ruling in his

first state PCR proceedings. Nor did he so much as mention

the cross-admissibility ruling in either his habeas petition, or

his opening merits brief in support of his petition. It was not

until his reply brief that Walden contested the cross-

admissibility determination, and he did so under only state

law.

Because Walden did not challenge the cross-admissibility

ruling on federal grounds in his state PCR proceedings, we

must refrain from reviewing that issue. See 28 U.S.C.

§ 2254(b)(1)(A); Duncan v. Henry, 513 U.S. 365, 366 (1995)

(per curiam) (“If a habeas petitioner wishes to claim that an

evidentiary ruling . . . denied him the due process of law

guaranteed by the Fourteenth Amendment, he must say so . . .

in state court.”); see also 28 U.S.C. § 2254(b)(3) (“A State

shall not be deemed to have waived the exhaustion

requirement or be estopped from reliance upon the

WALDEN V. SHINN 25

requirement unless the State, through counsel, expressly

waives the requirement.”). Further, Walden forfeited any

such challenge by omitting it from his habeas petition. See

Robinson v. Kramer, 588 F.3d 1212, 1217 (9th Cir. 2009)

(“Habeas claims that are not raised before the district court in

the petition are not cognizable on appeal.” (quoting

Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir.

1994)); Rhoades v. Henry, 598 F.3d 495, 501 (9th Cir. 2010)

(holding that because the petitioner failed to raise a Brady

claim in his amended petition, “the claim is waived”).5

B

The district court also properly declined to grant habeas

relief as to claim 2, which was based on the trial court’s

admission of the Blanar, Velasco, and Jordan identifications.

See Walden II, 2008 WL 2026217, at *5–12. Contrary to

Walden’s arguments on appeal, the state court’s rejection of

this claim was not contrary to, or an unreasonable application

of, clearly established federal law, nor did it rest on an

unreasonable determination of the facts.

5

Although Walden challenged the cross-admissibility determination

on state law grounds in his first amended PCR petition, the district court

properly declined to review that ruling. See Walden II, 2008 WL

2026217, at *5. Because “it is not the province of a federal habeas court

to reexamine state-court determinations on state-law questions,” Estelle

v. McGuire, 502 U.S. 62, 67–68 (1991), we likewise decline to consider

whether the state court erred as a matter of state law in concluding that the

evidence regarding each victim would have been cross-admissible in three

separate trials. See Park v. California, 202 F.3d 1146, 1149 (9th Cir.

2000) (declining to reach a habeas petitioner’s contention that “under

California law, the crimes should not have been consolidated [where]

evidence relevant to one set of counts would not have been admissible at

a separate trial on the other set of counts” because “a violation of state law

standing alone is not cognizable in federal court on habeas”).

26 WALDEN V. SHINN

1

Under clearly established federal law (now and at the time

that the Arizona Supreme Court rendered its decision), a due

process challenge to eyewitness identifications is subject to

a two-step inquiry: First, a court must decide “whether the

police used an unnecessarily suggestive identification

procedure.” Perry v. New Hampshire, 565 U.S. 228, 235

(2012). Second, if there was “improper police conduct,” the

court must then decide whether such police conduct “created

a substantial likelihood of misidentification.” Id. at 239

(cleaned up). “Reliability of the eyewitness identification is

the linchpin of [this] evaluation.” Id. (cleaned up); see also

Neil v. Biggers, 409 U.S. 188, 198–199 (1972) (explaining

that “unnecessary suggestiveness alone” does not “require[]

the exclusion of evidence”); Manson v. Brathwaite, 432 U.S.

98, 106 (1977) (“The admission of testimony concerning a

suggestive and unnecessary identification procedure does not

violate due process so long as the identification possesses

sufficient aspects of reliability.”).

The first step focuses on police conduct. See Perry, 565

U.S. at 232. If the police did not “arrange[] suggestive

circumstances leading the witness to identify a particular

person as the perpetrator,” the inquiry ends. Id.; see also

United States v. Bagley, 772 F.2d 482, 492 (9th Cir. 1985)

(“If we find that a challenged procedure is not impermissibly

suggestive, our inquiry into the due process claim ends.”).

The Supreme Court has identified some of the ways in

which an identification procedure may be unduly suggestive.

For example, a police-designed lineup that features

individuals “grossly dissimilar in appearance to the suspect”

is improperly suggestive. Perry, 565 U.S. at 243 (quoting

WALDEN V. SHINN 27

United States v. Wade, 388 U.S. 218, 233 (1967)); see also

Bagley, 772 F.2d at 493 (explaining that such lineups

“emphasize the focus upon a single individual,” thereby

“increas[ing] the danger of misidentification” (citing

Simmons v. United States, 390 U.S. 377, 382–83 (1968))).

The corollary to this principle, as we have explained, is

that “[m]ere variations in appearance among persons or

photographs presented to a witness do not automatically

invalidate a pretrial identification.” United States v.

Robertson, 606 F.2d 853, 857 (9th Cir. 1979); see also United

States v. Love, 746 F.2d 477, 479 (9th Cir. 1984) (per curiam)

(holding that a photographic lineup procedure was not

impermissibly suggestive where “all of the photographs were

reasonably similar in appearance to Love”). Certain police

commentary before and during an identification procedure

may also amount to “improper suggestion,” such as when the

police tell the witness “that they have caught the culprit after

which the defendant is brought before the witness alone or is

viewed in jail” or when the police “point[] out” the suspect

“before or during a lineup.” Perry, 565 U.S. at 243 (quoting

Wade, 388 U.S. at 233).

2

The state court’s rejection of Walden’s due process

challenge to the photographic lineup used with Blanar,

Velasco, and Jordan was consistent with the foregoing

principles and rested on factual findings that were objectively

reasonable.6

6

Under Johnson v. Williams, 568 U.S. 289, 298–99 (2013), we

presume that the state court adjudicated Walden’s federal challenge to the

identification procedures on the merits. Even though the state court did

28 WALDEN V. SHINN

First, the Arizona Supreme Court identified the correct

legal standard governing the suggestiveness of photographic

lineups: “The law only requires that line-ups depict

individuals who basically resemble one another such that the

suspect’s photograph does not stand out.” Walden, 905 P.2d

at 985 (cleaned up); compare id. with Perry, 565 U.S. at 243

(explaining that “[i]mproper suggestion” occurs when lineups

feature individuals “grossly dissimilar in appearance to the

suspect” (quoting Wade, 388 U.S. at 233) (emphasis added)).

Next, the Arizona Supreme Court concluded that Walden’s

photo (number 5) did not stand out because, as a factual

matter, “those shown resembled one another. All were

similar in age, build, hair color, and hair length,” and “[t]he

fact that two had blue eyes and different complexions [wa]s

inconsequential.” Walden, 905 P.2d at 985.

The record shows that it was not objectively unreasonable

for the Arizona Supreme Court to conclude that the photos

generally resemble one another and the lineup was not

suggestive. Id.; see also Love, 746 F.2d at 479 (rejecting, on

direct appeal, Love’s suggestive identification challenge to a

photo lineup where “all of the photo[s] were reasonably

similar in appearance to Love” (emphasis added)). To the

extent there are differences between Walden and the other

not expressly cite federal precedent in rejecting that challenge, see

Walden, 905 P.2d at 985–86, Walden cannot rebut this presumption

because Arizona’s two-step test for determining whether such procedures

are impermissibly suggestive “mirrors” the constitutional analysis. Day,

715 P.2d at 748; see also Walden, 905 P.2d at 985 (citing Day, 715 P.2d

at 748); Kipp v. Davis, 971 F.3d 939, 950 (9th Cir. 2020) (explaining that

the Johnson presumption is appropriate where “the line of state precedent

could be viewed to fully incorporate a related federal constitutional

right”).

WALDEN V. SHINN 29

five men pictured in the lineup, they are too subtle to amount

to improper suggestion. See Robertson, 606 F.2d at 857.

At least five of the six men are obviously white (numbers

2, 3, 4, 5, and 6); at least four of the six men appear to be in

the same age range (numbers 1, 3, 5, and 6); and at least four

of the six men appear to have similar skin and hair coloring

as well as hair length and type (numbers 3, 4, 5, and 6).

Given the lack of “gross[] dissimilar[ity]” in the photo array,

Perry, 565 U.S. at 243, we cannot agree that the Arizona

Supreme Court unreasonably rejected Walden’s argument

that the police “arranged [the array] as to make” Walden’s

identification “virtually inevitable.” Cf. Foster v. California,

394 U.S. 440, 443 (1969); see also United States v. Beck, 418

F.3d 1008, 1012 (9th Cir. 2005) (rejecting, on direct review,

a claim that the composition of a photospread was improperly

suggestive where “all six of the pictures [we]re of Caucasian

males in the same age range, with similar skin, eye, and hair

coloring”; “[f]our of the six photos show[ed] men with

similar length hair, with two having somewhat shorter hair”;

and five of the photographed men were “clean-shaven”).

3

The state court did not rule contrary to, nor unreasonably

apply, clearly established federal law when it determined that

the police did not taint Blanar’s and Velasco’s identifications

by informing each victim, after she had chosen Walden’s

photo, that the police had a man in custody, or by providing

Velasco with an article concerning Walden’s arrest for

another assault and a homicide. See Walden, 905 P.2d at 985

(“We have . . . consistently held that when the identification

procedure is not suggestive in the first place, such subsequent

30 WALDEN V. SHINN

comments do not taint the initially fair procedure.” (citation

omitted)).

The record supports this conclusion. Before Blanar

viewed the lineup, the officer administering the lineup told

her that she did not have to identify anyone. After Blanar

selected Walden’s photo and repeatedly said, “That’s him,”

the officer told Blanar that the man who assaulted her was in

custody. However, the officer did not tell Blanar she had

picked the “right guy.” Likewise, before Velasco viewed the

photo array, the officer administering the lineup reminded her

that there was no need to identify anyone, and it was just as

important to free innocent persons of suspicion. After

Velasco selected Walden’s photo, the officer told her that

“he” was in jail, but did not tell Velasco that she had picked

the “right guy.” The officer gave Velasco an article about

Walden’s arrest for other crimes, but it did not include a

picture of him, see id., and the officer did not inform Velasco

that police had matched a fingerprint on a shoe that she had

been wearing during the assault to Walden.

On this record, the state court reasonably concluded that

the police’s post-identification remarks and conduct did not

constitute “improper suggestion.” Perry, 565 U.S. at 243

(explaining that “improper suggestion” occurs where the

police tell the witness “that they have caught the culprit after

which the defendant is brought before the witness alone or is

viewed in jail” or when the police “point[] out” the suspect

“before or during a lineup” (quoting Wade, 388 U.S. at 233)

(emphasis added)); cf. also United States v. Bowman, 215

F.3d 951, 966 (9th Cir. 2000) (rejecting, on direct appeal,

suggestive identification claim where “[t]he witnesses were

told that they need not make an identification if they were not

confident”); Love, 746 F.2d at 479 (rejecting, on direct

WALDEN V. SHINN 31

appeal, suggestive identification claim where “each time [the

witness] was shown a lineup, she was told that the robber

might or might not be included and that she should not feel

compelled to make an identification”).

4

The Arizona Supreme Court reasonably declined to infer

improper police influence from the fact that Jordan selected

Walden’s photo during a two-minute off-the-record

conversation with a detective after she had tentatively

identified another individual as resembling one of two men

she had seen at Burhans’s complex on June 13. See Walden,

905 P.2d at 985 (reaching this conclusion after “listening to

the tape” of the conversation between Jordan and the

detective and “reviewing the transcript of the [evidentiary]

hearing”).

The Arizona Supreme Court’s summary of the

circumstances surrounding Jordan’s identification finds

ample support in the record and reflects that nothing

untoward occurred between police and Jordan, contrary to

Walden’s speculation, see Walden II, 2008 WL 2026217,

at *11 (“[Walden’s] argument about Jordan’s pretrial

identification boils down to this statement: ‘It is simply too

difficult to accept, in terms of due process, that Ms. Jordan

could go from not recognizing Mr. Walden at all prior to the

tape being turned off to being able to make a positive

identification of him after the tape resumed.’” (citation

omitted)):

[Jordan] saw two men [on June 13] at the

[Burhans’s] apartment complex. One stood

out because he had been acting strangely, and

32 WALDEN V. SHINN

she made a mental note of it. When she heard

about the murder, she called the police. After

viewing the photographic line-up (the same

one shown to [Blanar] and [Velasco]),

[Jordan] indicated that the person in the

number two position, which was not Walden,

“looked very similar to the person [she] saw.”

She said that his eyes and complexion were

similar but that his nose was different.

Believing they were finished, the officer

turned the tape off. [Jordan], still looking at

the photographs, then indicated that although

some of the pictures looked similar to the man

who had acted strangely, she had definitely

seen the man pictured in the number five

position, which was Walden. She stated that

he had looked like a maintenance person or

was “doing something in the yard” of the

complex. She also stated that Walden had

some type of equipment with him.

The officer immediately turned the tape

recorder back on. She explained on tape what

had just happened, and [Jordan] confirmed it.

At the [suppression] hearing, both [Jordan]

and the officer verified that the tape

accurately reflected what had occurred

off-tape. Walden did not offer any evidence to

rebut their testimony. Nor did he elicit on

cross-examination anything that would

contradict this explanation of the off-tape

conversation.

Id. at 985–86.

WALDEN V. SHINN 33

The Arizona Supreme Court’s conclusion that Jordan “did

not take part in a suggestive identification procedure” was not

unreasonable on this record. Id. at 986.

5

Because the Arizona Supreme Court reasonably

determined that the three identifications at issue were not the

product of impermissibly suggestive police procedures, there

was no need for the court to assess the reliability of each

identification under the totality of the circumstances. See

Perry, 565 U.S. at 248 (“[T]he Due Process Clause does not

require a preliminary judicial inquiry into the reliability of an

eyewitness identification when the identification was not

procured under unnecessarily suggestive circumstances

arranged by law enforcement.”); see also Bagley, 772 F.2d at

492; Love, 746 F.2d at 478. To the extent Walden argues

otherwise, he is mistaken.

6

Finally, we reject Walden’s challenge to the Velasco

identification insofar as it rests on a factual basis that he

failed to present to the Arizona Supreme Court. See 28

U.S.C. § 2254(b)(1)(A); Robinson, 595 F.3d at 1101

(exhaustion requires “present[ing] both the factual and legal

basis for the claim to the state court”). Because Walden did

not give the state court a “fair opportunity” to consider this

factual basis for his challenge to the Velasco identification,

we lack jurisdiction to consider whether those facts establish

a constitutional violation. See Davis, 511 F.3d at 1008–09.

34 WALDEN V. SHINN

C

As to Claim 3, the district court properly concluded that

McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015) (en banc),

has no impact on Claim 31 of Walden’s habeas petition. In

Claim 31, Walden argued that the state trial court failed to

properly consider the mitigating evidence, given that the

court had prepared a special verdict before the submission of

evidence. Because Walden did not identify any causal nexus

error by the Arizona Supreme Court in Claim 31, his belated

claims of causal nexus error are not cognizable on appeal.

D

As to Claim 4, the district court properly denied Walden

leave to amend his habeas petition to add five previously-

withdrawn IAC claims on the grounds that those claims are

untimely and do not relate back to his timely-filed claims and

that Walden unduly delayed seeking leave to amend. We

deny Walden’s request, made for the first time on appeal, for

equitable tolling.

1

Under Rule 15 of the Federal Rules of Civil Procedure,7

the civil rule governing amended pleadings, an amendment

made after the statute of limitations has run “relates back to

the date of the original pleading,” thereby avoiding AEDPA’s

time bar, when “the amendment asserts a claim . . . that arose

7

“Habeas Corpus Rule 11 permits application of the Federal Rules

of Civil Procedure in habeas cases to the extent that the civil rules are not

inconsistent with any statutory provisions or the habeas rules.” Mayle v.

Felix, 545 U.S. 644, 654 (2005) (cleaned up).

WALDEN V. SHINN 35

out of the conduct, transaction, or occurrence set out—or

attempted to be set out—in the original pleading.” Rule

15(c)(1)(B). Walden sought leave to amend his petition to

include the five IAC claims at issue here several years after

the deadline for filing his habeas petition had passed. See

Walden v. Arizona, 517 U.S. 1146 (1996) (Mem.) (denying

certiorari). Thus, the district court properly focused its

timeliness analysis on whether any of the proposed IAC

claims relate back to the timely-filed claims under Rule 15(c).

To satisfy Rule 15(c)’s relation-back standard, the

proposed claims and the “original” claims must be “tied to a

common core of operative facts.” Hebner v. McGrath, 543

F.3d 1133, 1138 (9th Cir. 2008) (quoting Mayle, 545 U.S. at

664). “An amended habeas petition ‘does not relate back

(and thereby escape AEDPA’s one-year time limit) when it

asserts a new ground for relief supported by facts that differ

in both time and type from those the original pleading set

forth.’” Id. (quoting Mayle, 545 U.S. at 650). In other words,

“relation back requires a single course or pattern of

conduct—not factually and temporally unrelated conduct

arising out of the same underlying proceeding.” Ross v.

Williams, 950 F.3d 1160, 1171 (9th Cir. 2020) (en banc).

After carefully comparing the proposed IAC claims to the

timely claims on which Walden relies to support relation

back, we agree with the district court that they lack a

“common core of operative facts.” Hebner, 543 F.3d at 1138.

As the district court observed with respect to these claims,

“not only are the actors different, the alleged error different,

and the time [each] claim arose different, the core operative

facts are almost entirely unique to each claim.” Thus, the

“barrier to relation back” here “is the difference between [the

claims’] respective factual predicates.” Alfaro v. Johnson,

36 WALDEN V. SHINN

862 F.3d 1176, 1184 (9th Cir. 2017); see also Schneider v.

McDaniel, 674 F.3d 1144, 1151 (9th Cir. 2012).

Thus, without the need to discuss the claims in detail, we

agree with the district court that the new claims do not satisfy

the requirements of Rule 15(c).

2

We also deny Walden’s belated request for equitable

tolling—made for the first time on appeal. Because Walden

did not raise this issue before the district court, we review it

for plain error. United States v. Olano, 507 U.S. 725, 734

(1993). In order to find plain error, we must determine that

(1) there was “error”; (2) it was “plain”; and (3) the error

affected “substantial rights.” Id. at 732–35.

Although the AEDPA statute of limitations is subject to

equitable tolling, in order to be entitled to equitable tolling, a

petitioner must show “(1) that he has been pursuing his rights

diligently, and (2) that some extraordinary circumstance

stood in his way and prevented timely filing.” Smith v. Davis,

953 F.3d 582, 588 (9th Cir. 2020) (en banc) (cleaned up).

Here, the district court’s independent finding, in denying the

motion to file an amended petition, that Walden did not

exercise due diligence in pursuing the amended claims is

amply supported by the record. Absent due diligence,

Walden is not entitled to equitable tolling, and the district

court did not commit plain error.

As we have noted, Walden filed his initial federal habeas

petition in November 1999. After the district court requested

a statement concerning exhaustion, he filed an amended

petition on August 16, 2000, which included the IAC claims.

WALDEN V. SHINN 37

In October 16, 2000, he withdrew the IAC claims. Three

months after the state courts deemed those claims

procedurally barred because he had not previously raised

them in state court, and four years after he had withdrawn

them from the federal proceedings, he sought amendment to

re-assert them in federal court. The district court noted that,

instead of complying with the court’s order and attempting to

establish cause and prejudice to excuse the procedural

defaults, Walden voluntarily withdrew the claims without

leave of court. In sum, following his conviction in 1992,

Walden did not assert the IAC claims in state court. He first

asserted them in federal court eight years later, then withdrew

them, then attempted to reassert them four years later. The

record supports the district court’s conclusion that Walden

had not exercised due diligence, and there was no plain error

in not applying the doctrine of equitable tolling.

Walden further contends, for the first time in

supplemental briefing filed shortly before oral argument in

this case, that he is entitled to equitable tolling under

Williams v. Filson, 908 F.3d 546 (9th Cir. 2018), which was

decided after the district court order. However, Williams is

inapplicable here. In Williams, we held that the district court

had erred in denying equitable tolling where the petitioner,

who filed his amended habeas petition nearly one year after

the AEDPA deadline, reasonably “assumed that the claims

asserted in his amended petition” would relate back to his

original petition based on the then-unsettled state of the law

regarding the relation-back standard in habeas cases. Id. at

559–61. However, unlike the situation in Williams, based on

a survey of the law as it stood in October 2000—when

Walden withdrew his IAC claims—there was not a

reasonable expectation that the district court would later

38 WALDEN V. SHINN

deem those claims related to the remaining claims under Rule

15(c).

As we noted in Williams, federal circuit courts—albeit not

the Ninth—first began “imposing a more restrictive reading

of Rule 15(c)” in February 1999, id. at 560—before Walden

withdrew the five IAC claims. See United States v.

Craycraft, 167 F.3d 451, 457 (8th Cir. Feb. 3, 1999); see also

United States v. Duffus, 174 F.3d 333, 337 (3d Cir. Apr. 20,

1999); United States v. Pittman, 209 F.3d 314, 317–18 (4th

Cir. Mar. 24, 2000); Davenport v. United States, 217 F.3d

1341, 1344–46 (11th Cir. July 13, 2000). Given a rapidly-

emerging circuit-level consensus that “transaction” or

“occurrence” in Rule 15(c) did not broadly refer to a

petitioner’s conviction and trial, Walden’s counsel, unlike

Williams’s, had ample “reason to suspect that Rule 15(c)

would pose an obstacle to consideration of newly added

claims in an amended petition.” Williams, 908 F.3d at 560.

Further, in Williams, unlike the situation here, the State did

not contest Williams’ diligence in pursuing his rights in the

year between the end of the limitations period and the filing

of his amended petition. See id. at 558. Finally, unlike the

situation in Williams, the district court here did not authorize,

nor did the State consent to amendment outside the

limitations period. To the contrary, the district court here

ordered Walden to file, by a deadline well within the

limitations period, an amended petition asserting “all known

claims of constitutional error or deprivation.”

In sum, Walden’s IAC claims are time-barred because

they do not relate back to any timely-filed claims and he is

not entitled to equitable tolling.

WALDEN V. SHINN 39

E

As to Claim 5, the district court properly concluded that

the trial court’s admission of 19 purportedly “gruesome”

crime scene and autopsy photos does not entitle Walden to

habeas relief because the state court’s decision did not

involve an objectively unreasonable application of clearly

established Supreme Court precedent or an objectively

unreasonable determination of the facts. See Walden II, 2008

WL 2026217, at *19–21.

1

Walden’s argument is foreclosed by Holley v.

Yarborough, in which we held that there was, at that time, no

clearly established federal law providing that the “admission

of irrelevant or overtly prejudicial evidence constitutes a due

process violation sufficient to warrant issuance of the writ.”

568 F.3d 1091, 1101 (9th Cir. 2009) (rejecting challenge to

the admission of sexually explicit materials seized from

Holley’s bedroom during his trial for, inter alia, child

molestation). That remains true.

2

Further, the Arizona Supreme Court reasonably reached

the following conclusions: (i) The photos were relevant to the

disputed issue of premeditation as well as “helpful to

illustrate” Dr. Howard’s “long and detailed” testimony

regarding Burhans’s injuries; and (ii) they were not unduly

prejudicial because “only three show[ed] [Burhans’s] body at

the crime scene, and only one of those actually show[ed]

[her] wounds,” while the autopsy photos showed her body

after it “had been washed” and were mostly “close-ups of her

40 WALDEN V. SHINN

various wounds.” Walden, 905 P.2d at 989. As the district

court observed in denying relief on this claim, see Walden II,

2008 WL 2026217, at *19–21, these conclusions find ample

support in the record. In addition, the record reflects that the

trial court exercised considerable care in shielding the jury

from unnecessary exposure to excessively gruesome photos

by excluding a subset of photos from admission into

evidence.

Walden contends that he offered to stipulate to the

victim’s injuries, so that the introduction of the evidence was

unnecessary. However, “nothing in the Due Process Clause

of the Fourteenth Amendment requires the State to refrain

from introducing relevant evidence simply because the

defense chooses not to contest the point.” McGuire, 502 U.S.

at 70. He further argues that the photographs were

inadmissible under Arizona state law; however, we cannot

grant federal habeas relief founded on an alleged non-

constitutional state evidentiary error. See Romano v.

Oklahoma, 512 U.S. 1, 10 (1994) (“That the evidence may

have been irrelevant as a matter of state law . . . does not

render its admission federal constitutional error.”); McGuire,

502 U.S. at 67 (“[F]ederal habeas corpus relief does not lie

for errors of state law.” (citation omitted)). In sum, we affirm

the district court’s denial of habeas relief in connection with

Claim 5.8

8

On appeal, Walden now argues that consideration of the challenged

photos during the sentencing phase violated his due process rights

(separate and apart from his challenge to their admission at trial). Walden

did not present this claim to the Arizona Supreme Court or in his operative

habeas petition. See Walden, 905 P.2d at 989; Walden II, 2008 WL

2026217, at *19–21. Therefore, we hold that this claim is both

unexhausted and waived. See Davis, 511 F.3d at 1008–09; Robinson, 588

F.3d at 1217.

WALDEN V. SHINN 41

IV

For the foregoing reasons, we affirm the district court’s

well reasoned denial of Walden’s petition for a writ of habeas

corpus.

AFFIRMED.