Detrich v. Ryan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DAVID SCOTT DETRICH, No. 08-99001
Petitioner-Appellant,
D.C. No.
v. 4:03-cv-00229-
DCB
CHARLES L. RYAN, Director of
Arizona Department of Corrections,
Respondent-Appellee. OPINION

Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding

Argued and Submitted En Banc
December 10, 2012—Pasadena, California

Filed September 3, 2013

Before: Alex Kozinski, Chief Judge, Harry Pregerson,
Stephen Reinhardt, Susan P. Graber, William A. Fletcher,
Ronald M. Gould, Carlos T. Bea, Mary H. Murguia,
Morgan Christen, Jacqueline H. Nguyen, and Paul J.
Watford, Circuit Judges.

Opinion by Judge W. Fletcher;
Concurrence by Judge Nguyen;
Concurrence by Judge Watford;
Dissent by Judge Graber
2 DETRICH V. RYAN

SUMMARY*

Habeas Corpus / Death Penalty

The en banc court granted a motion to remand this appeal
for the district court to rule on a motion, made under
Martinez v. Ryan, 132 S. Ct. 1309 (2012), by a petitioner
challenging his conviction and capital sentence for murder
and kidnapping.

After the district court determined that petitioner’s claims
of ineffective assistance of trial counsel at sentencing were
procedurally defaulted, the Supreme Court changed the law
with Martinez and Trevino v. Thaler, 133 S. Ct. 1911 (2013),
by creating an exception to the “cause” and “prejudice” rule
for excusing the state-court procedural default of claims
raised in a federal habeas corpus petition. The majority
remanded for the district court to rule on petitioner’s
Martinez motion, which claimed that post-conviction
counsel’s ineffective assistance excused the procedural
default of his trial ineffective assistance claims. The majority
did not address petitioner’s non-defaulted claims, and
retained jurisdiction over any subsequent appeal.

Part II of the plurality opinion (Judge W. Fletcher, joined
by Judges Pregerson, Reinhardt, and Christen), explained that
there are four requirements to overcome a procedural default:
1) that the ineffective assistance claim be “substantial,” 2)
that the “cause” consisted of there being “no counsel” or only
“ineffective” counsel during the state collateral review

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 DETRICH V. RYAN 3

proceeding, 3) that the state collateral review proceeding was
the “initial” review proceeding as to the ineffective assistance
claim, and 4) that state law requires such a claim to be raised
in an initial-review collateral proceeding, or that the state
procedural framework makes it highly unlikely in a typical
case that a defendant will have a meaningful opportunity to
raise an ineffective assistance claim on direct appeal.

Judge Nguyen concurred in the result. She wrote
separately to explain why she disagrees that Martinez
modifies the prejudice showings required to establish
ineffective assistance under Strickland v. Washington,
466 U.S. 668 (1984), and to overcome a procedural default
under Coleman v. Thompson, 501 U.S. 722 (1991).

Judge Watford concurred in the judgment, and saw no
need to say anything more than that the motion to remand is
granted.

Judge Graber, joined by Chief Judge Kozinski and Judges
Gould, Bea, and Murguia, dissented. Judge Graber would
deny the motion to remand and decide the sentencing
ineffective assistance claims now.
4 DETRICH V. RYAN

COUNSEL

Amy Sara Armstrong, and Jennifer Susan Bedier (argued),
Arizona Capital Representation Project, Tucson, Arizona, for
Petitioner-Appellant.

Kent Ernest Cattani (argued), and Laura Chiasson, Office of
the Arizona Attorney General, Tucson, Arizona, for
Respondent-Appellee.

OPINION

W. FLETCHER, Circuit Judge:

Judges Pregerson and Reinhardt concur in the entirety of
the following opinion. Judge Christen concurs in Part II and
in the result. Judges Nguyen and Watford concur in the result.

David Scott Detrich appeals from the district court’s
denial of his habeas petition. An Arizona judge sentenced
Detrich to death after a jury convicted him of murder,
kidnapping, and sexual abuse. The district court held that
several of Detrich’s claims of ineffective assistance of
counsel (“IAC”) by his trial counsel were procedurally
defaulted because he had failed to raise them during his state
post-conviction relief (“PCR”) proceedings. Applying then-
governing law, the district court rejected Detrich’s argument
that ineffective assistance of his PCR counsel could excuse
his procedural default.

While Detrich’s appeal from the district court decision
was pending in this court, the Supreme Court decided
Martinez v. Ryan, 132 S. Ct. 1309 (2012). The Court held in
 DETRICH V. RYAN 5

Martinez that a state PCR counsel’s ineffective assistance in
failing to raise trial-counsel IAC claims can excuse a
procedural default. Detrich moved for a remand to the
district court to allow that court to rule on his Martinez
motion in the first instance.

We grant the motion and remand to the district court.

I. Background

Detrich was charged with first-degree murder,
kidnapping, and sexual assault in connection with the killing
of Elizabeth Souter. State v. Detrich (Detrich I), 873 P.2d
1302, 1304 (Ariz. 1994). Alan Charlton, who participated in
the events that culminated in Souter’s murder, pled guilty to
kidnapping. He then testified against Detrich in exchange for
a ten-and-a-half-year sentence.

Detrich’s first trial ended in a mistrial after a prosecution
witness testified that Detrich had invoked his rights under the
Fifth Amendment during the investigation. Id. The Arizona
Supreme Court reversed the conviction in Detrich’s second
trial because of a defective jury instruction. Id. at 1306.

After a third trial, the jury convicted Detrich of
kidnapping and first-degree murder. State v. Detrich (Detrich
II), 932 P.2d 1328, 1331 (Ariz. 1997). The jurors could not
agree on a basis to support the first-degree murder conviction.
Nine jurors found Detrich guilty of premeditated murder.
Three jurors found him guilty of only felony murder. That is,
it appears that only nine jurors were convinced that Detrich,
rather than Charlton, was the actual killer. The trial judge
concluded beyond a reasonable doubt that Detrich was the
killer. Based on that conclusion, he sentenced Detrich to
6 DETRICH V. RYAN

death for the murder and to twenty-one years in prison for the
kidnapping. Id. The Arizona Supreme Court affirmed
Detrich’s convictions and sentence. Id.

With the assistance of new counsel, Detrich filed a PCR
petition in Pima County Superior Court. Detrich alleged in
his PCR petition that counsel at his third trial had been
ineffective for failing to (1) present mitigating evidence
during sentencing; (2) present an expert witness to rebut the
aggravating factors presented by the state; (3) retain an expert
witness to examine certain pieces of forensic evidence at trial;
(4) present live testimony from exculpatory witness William
Shell instead of relying on Shell’s recorded testimony from
a prior trial; (5) object to testimony that Charlton’s plea
agreement required that he testify truthfully; and (6) preserve
other constitutional challenges for appeal. The superior court
rejected Detrich’s claims on the merits, holding that “neither
prong of the Strickland v. Washington[, 466 U.S. 668
(1984),] test has been met as to any claims of ineffective
assistance of counsel.” The Arizona Supreme Court denied
review, leaving the superior court’s four-page order as the
only reasoned state-court PCR decision.

Detrich then filed a habeas petition in federal district
court. The petition alleged some of the claims that had been
rejected in the state PCR proceeding, including the trial-
counsel IAC claims for failure to present mitigating evidence
and failure to present an expert witness to rebut the state’s
aggravation case. The petition also raised trial-counsel IAC
claims that had not been presented in the state PCR
proceedings.

Before the district court ruled, Detrich filed a second PCR
petition in the superior court. In this petition, Detrich raised
 DETRICH V. RYAN 7

many of the trial-counsel IAC claims he had alleged for the
first time in his federal petition. The superior court held that
these new claims were procedurally barred under Arizona
Rule of Criminal Procedure 32.2(b) because they could have
been raised in Detrich’s first PCR petition.

The district court then ruled that Detrich’s new trial-
counsel IAC claims were procedurally defaulted for purposes
of federal habeas review. The court rejected Detrich’s
argument that the ineffectiveness of his first PCR counsel
excused his procedural default, noting that there was no
constitutional right to counsel in PCR proceedings.

The district court rejected all of Detrich’s non-defaulted
claims on the merits. After an evidentiary hearing, the
district court held that Detrich’s counsel had performed
deficiently by failing to investigate and present mitigating
evidence at sentencing, contrary to the holding of the state
PCR court. Detrich v. Schriro, No. CV-03-229-TUC-DCB,
2007 WL 4024551, at *3–10 (D. Ariz. Nov. 15, 2007). The
district court concluded, however, that Detrich had failed to
show prejudice resulting from that deficient performance as
required under Strickland. Detrich, 2007 WL 4024551, at
*10–24.

A three-judge panel of this court reversed, vacating
Detrich’s death sentence. Detrich v. Ryan, 619 F.3d 1038
(9th Cir. 2010). The panel agreed with the district court that
the Arizona PCR court had unreasonably applied Strickland
when it concluded that Detrich’s sentencing counsel had not
performed deficiently. Id. at 1052–57. However, it disagreed
with the district court on the prejudice prong of Strickland,
holding that the PCR court’s conclusion that Detrich was not
prejudiced by trial counsel’s failure to investigate and present
8 DETRICH V. RYAN

mitigating evidence was based on an unreasonable
determination of the facts. Id. at 1057–69.

The Supreme Court vacated our decision and remanded
in light of its decision in Cullen v. Pinholster, 131 S. Ct. 1388
(2011). Ryan v. Detrich, 131 S. Ct. 2449 (2011) (mem.). On
remand, the three-judge panel again reversed the district court
and vacated the death sentence. Detrich v. Ryan, 677 F.3d
958 (9th Cir. 2012). After the panel issued its second
opinion, Detrich moved to remand under Martinez. We
granted rehearing en banc. 696 F.3d 1265 (9th Cir. 2012).
Detrich’s Martinez motion is now before our en banc panel.

II. Martinez v. Ryan and Trevino v. Thaler

The district court properly concluded under then-
governing law that Detrich’s trial-counsel IAC claims raised
for the first time in his federal habeas petition had been
procedurally defaulted, and that it therefore could not hear
them. A federal court sitting in habeas ordinarily cannot hear
a petitioner’s procedurally defaulted federal claims absent a
showing of cause and prejudice, or a showing that failing to
review the claim will result in a fundamental “miscarriage of
justice.” Wainwright v. Sykes, 433 U.S. 72, 88, 90–91 (1977)
(applying the rule in the context of failure to make
contemporaneous objection); Coleman v. Thompson, 501 U.S.
722, 750 (1991) (making “explicit” that Wainwright and its
progeny apply 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”). In
Coleman, the Court held that ineffective assistance of counsel
in a state PCR proceeding cannot constitute cause to excuse
a procedural default because there is no constitutional right to
an attorney in state PCR proceedings. 501 U.S. at 752–53.
 DETRICH V. RYAN 9

Applying Coleman, the district court correctly held, based on
the law as it then stood, that the ineffectiveness of Detrich’s
state PCR counsel in failing to raise trial-counsel IAC claims
could not constitute cause.

While the district court’s decision was on appeal, the
Supreme Court changed the law. See Martinez, 132 S. Ct. at
1315. The Court held in Martinez that “[i]nadequate
assistance of counsel at initial-review collateral proceedings
may establish cause for a prisoner’s procedural default of a
claim of ineffective assistance at trial.” Id. The Court
addressed the situation in Arizona, where a prisoner is
forbidden to raise a trial-counsel IAC claim on direct review.
Such a claim may be brought only in state PCR proceedings.
Id. The Court wrote that in such cases, “the collateral
proceeding is in many ways the equivalent of a prisoner’s
direct appeal as to the ineffective-assistance claim.” Id. at
1317. The Court recognized that “if counsel’s errors in an
initial-review collateral proceeding do not establish cause to
excuse the procedural default in a federal habeas proceeding,
no court will review the prisoner’s claims.” Id. at 1316.

The Court therefore held,

Where, under state law, claims of ineffective
assistance of trial counsel must be raised in an
initial-review collateral proceeding, a
procedural default will not bar a federal
habeas court from hearing a substantial claim
of ineffective assistance at trial if, in the
initial-review collateral proceeding, there was
no counsel or counsel in that proceeding was
ineffective.
10 DETRICH V. RYAN

Id. at 1320. The Court did not reach the question of whether
there is a constitutional right to effective assistance of counsel
during a state PCR proceeding. Id. at 1319–20. Rather, the
Court established an equitable rule that IAC during initial-
review PCR proceedings may constitute “cause” to excuse a
state-court procedural default. Id.

In Trevino v. Thaler, 133 S. Ct. 1911 (2013), the Court
reaffirmed and slightly expanded the Martinez rule. The
question in Trevino was whether the Martinez rule applies in
states, such as Texas, where an appellate counsel is legally
permitted to assert a claim of trial-counsel IAC on direct
review, but where it is “highly unlikely” as a practical matter
that appellate counsel will have a “meaningful opportunity”
to do so. Id. at 1921. The Court noted that Texas, unlike
Arizona, “appears at first glance to permit . . . the defendant
initially to raise a claim of ineffective assistance of trial
counsel on direct appeal.” Id. at 1915. But “in actual
operation,” the “structure and design of the Texas system . . .
make it ‘virtually impossible’ for an ineffective assistance
claim to be presented on direct review.” Id. (quoting
Robinson v. State, 16 S.W.3d 808, 810–11 (Tex. Crim. App.
2000)). The Court therefore found “no significant difference
between this case and Martinez.” Id. at 1921. The Court
concluded that “where, as here, [the] state procedural
framework, by reason of its design and operation, makes it
highly unlikely in a typical case that a defendant will have a
meaningful opportunity to raise a claim of ineffective
assistance of trial counsel on direct appeal, our holding in
Martinez applies.” Id.

This is the first occasion for an en banc panel of our court
to deal with what we will call, for ease of reference, a
Martinez motion. For the guidance of the district court on
 DETRICH V. RYAN 11

remand, we take the opportunity to explicate three aspects of
the Court’s decisions in Martinez and Trevino.

A. “Cause” under Martinez and Trevino

In Martinez and Trevino, the Court created an exception
to the normally applicable “cause” and “prejudice” rule for
excusing state-court procedural default on federal habeas.
Under the usual rule, “‘cause’ . . . must be something
external to the petitioner, something that cannot fairly be
attributed to him.” Coleman, 501 U.S. at 753. State PCR
counsel’s “ignorance or inadvertence” cannot constitute
“cause” under this rule. Id. PCR counsel acts as “the
petitioner’s agent . . . , and the petitioner must ‘bear the risk
of attorney error’” because there is no constitutional right to
counsel in state PCR proceedings. Id. at 753–54 (quoting
Murray v. Carrier, 477 U.S. 478, 488 (1986)). To show
“prejudice” under the usual rule, the “habeas petitioner must
show ‘not merely that the errors at . . . trial created a
possibility of prejudice, but that they worked to his actual and
substantial disadvantage, infecting his entire trial with error
of constitutional dimensions.’” Murray, 477 U.S. at 494
(quoting United States v. Frady, 456 U.S. 152, 170 (1982)
(omission and emphasis in original).

The strict “cause” and “prejudice” rule, first articulated by
the Court in 1977 in Wainwright v. Sykes, replaced the more
lenient “deliberate bypass” rule that had been established in
Fay v. Noia, 372 U.S. 391, 438–39 (1963). The Court in
Wainwright justified the strictness of the new rule as
necessary to prevent competent defense counsel from
“sandbagging” the prosecution at trial. 433 U.S. at 89. The
Court explained that the rule discouraged “‘sandbagging’ on
the part of defense lawyers, who may take their chances on a
12 DETRICH V. RYAN

verdict of not guilty in a state trial court with the intent to
raise their constitutional claims in a federal habeas court if
their initial gamble does not pay off.” Id. Sandbagging
might consist, for example, of competent defense counsel
deliberately failing to make a constitutional objection to
testimony of a key prosecution witness, with the result that
neither the court nor the prosecutor takes corrective action
during the trial. Then, in the event that the defendant is
convicted, defense counsel could raise for the first time on
federal habeas the constitutional objection he deliberately
failed to make during trial, with the result that the conviction
would be set aside.

The concern that gave rise to the strict “cause” and
“prejudice” rule is not at issue in a Martinez motion. There
is no concern about competent defense counsel who might
“sandbag” at trial. The premise of Martinez is incompetent
counsel. Indeed, the premise is two incompetent counsel —
trial counsel and state PCR counsel. This quite different
circumstance is reflected in the Court’s more lenient rule in
Martinez for excusing procedural default. The Court justified
the rule by emphasizing the importance of the right to
effective assistance of trial counsel, which the Court called “a
bedrock principle in our justice system.” Martinez, 132 S. Ct.
at 1317. “[T]he limited nature of the qualification to
Coleman adopted here reflects the importance of the right to
the effective assistance of trial counsel and Arizona’s
decision to bar defendants from raising ineffective-assistance
claims on direct appeal.” Id. at 1320.

Under the new Martinez rule, a procedural default by state
PCR counsel in failing to raise trial-counsel IAC is excused
if there is “cause” for the default. The Court wrote in
Trevino, summarizing its holding in Martinez:
 DETRICH V. RYAN 13

We consequently read Coleman as containing
an exception, allowing a federal habeas court
to find “cause,” thereby excusing a
defendant’s procedural default, where (1) the
claim of “ineffective assistance of trial
counsel” was a “substantial” claim; (2) the
“cause” consisted of there being “no counsel”
or only “ineffective” counsel during the
state collateral review proceeding; (3) the
state collateral review proceeding was
the “initial” review proceeding in respect to
the “ineffective-assistance-of-trial-counsel
claim”; and (4) state law requires that an
“ineffective assistance of trial counsel [claim]
. . . be raised in an initial-review collateral
proceeding.” Martinez, [132 S. Ct. at
1318–19, 1320–21].

Trevino, 133 S. Ct. at 1918. The Court thus clarified that
these are the only four requirements to overcome a procedural
default under Martinez.

Of the four requirements for “cause,” we need not pause
over the third or fourth. The third is self explanatory. The
fourth was modified in Trevino, as explained above. The first
and second requirements, however, merit attention.

The first requirement, that the prisoner show a
“substantial” underlying trial-counsel IAC claim, may be seen
as the Martinez equivalent of the “prejudice” requirement
under the ordinary “cause” and “prejudice” rule from
Wainwright. The second requirement, that there have been
“‘no counsel’ or only ‘ineffective’ counsel,” may be seen as
14 DETRICH V. RYAN

the Martinez equivalent of the “cause” requirement of the rule
from Wainwright.

With respect to the first requirement, that there be a
“substantial” claim, the Court wrote that a prisoner must

demonstrate that the underlying ineffective-
assistance-of-trial-counsel claim is a
substantial one, which is to say that the
prisoner must demonstrate that the claim has
some merit. Cf. Miller-El v. Cockrell,
537 U.S. 322 . . . (2003) (describing standards
for certificates of appealability to issue).

Martinez, 132 S. Ct. at 1318–19. Under the standard for
issuing a certificate of appealability, which the Court
incorporated in its definition of substantiality, “a petitioner
must show that reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented
were adequate to deserve encouragement to proceed further.”
Miller-El, 537 U.S. at 336 (internal quotation marks and
alterations omitted). Stated otherwise, a claim is
“insubstantial” if “it does not have any merit or . . . is wholly
without factual support.” Martinez, 132 S. Ct. at 1319.

The second requirement, that there have been “no
counsel” or “ineffective” counsel, does not demand a
showing of prejudice beyond that demanded under the first
requirement. The Court described the two cases to which the
second requirement applies:

The first is where the state courts did not
appoint counsel in the initial-review collateral
 DETRICH V. RYAN 15

proceeding for a claim of ineffective
assistance at trial. The second is where
appointed counsel in the initial-review
collateral proceeding, where the claim should
have been raised, was ineffective under the
standards of Strickland v. Washington.

Id. at 1318. In the first of the two posited cases, the second
requirement is satisfied simply by showing that the prisoner
was not represented by counsel during state PCR
proceedings. There is no need to show “prejudice” resulting
from the failure of the pro se prisoner during the state PCR
proceeding to raise a claim of trial-counsel IAC, over and
above the need to satisfy the first Martinez requirement that
the underlying trial-court IAC claim be “substantial.” In the
second of the two posited cases, the Court did not specify the
manner in which Strickland should be applied. We conclude,
for the narrow purpose of satisfying the second Martinez
requirement to establish “cause,” that a prisoner need show
only that his PCR counsel performed in a deficient manner.
A prisoner need not show actual prejudice resulting from his
PCR counsel’s deficient performance, over and above his
required showing that the trial-counsel IAC claim be
“substantial” under the first Martinez requirement.

This reading of the requirements in the second-posited
case, where the prisoner had PCR counsel, is necessary to
harmonize the second Martinez requirement with the rest of
the Martinez framework. If a prisoner who had PCR counsel
were required to show prejudice, in the ordinary Strickland
sense, resulting from his PCR counsel’s deficient
performance in order to satisfy the second Martinez
requirement, the prisoner would have to show, as a condition
for excusing his procedural default of a claim, that he would
16 DETRICH V. RYAN

succeed on the merits of that same claim. But if a prisoner
were required to show that the defaulted trial-counsel IAC
claims fully satisfied Strickland in order to satisfy the second
Martinez requirement, this would render superfluous the first
Martinez requirement of showing that the underlying
Strickland claims were “substantial” — that is, that they
merely had “some merit.” See Martinez, 132 S. Ct. at
1318–19.

Our conclusion is reinforced by Justice Breyer’s recent
statement in Gallow v. Cooper, No. 12-7516, 570 U.S. ___
(2013) (statement “respecting the denial of the petition for
writ of certiorari”). Justice Breyer, the author of Trevino,
indicated in Gallow that once a finding of “cause” under
Martinez has been made, a federal habeas court may proceed
to the merits of the trial-counsel IAC claim under Strickland.
He wrote, “The ineffective assistance of state habeas counsel
might provide cause to excuse the default of the claim,
thereby allowing the federal habeas court to consider the full
contours of Gallow’s ineffective-assistance claim.” Id., No.
12-7516, slip op. at 2. That is, cause and prejudice under
Strickland are determined separately from, and after, a
determination of “cause” under Martinez.

We therefore read the Court’s reference to Strickland in
the second-posited case of the second requirement (where the
prisoner had PCR counsel) to mean the same thing as in the
first-posited case (where the prisoner was pro se in PCR
proceedings). That is, in both of the posited cases, no
showing of prejudice from PCR counsel’s deficient
performance is required, over and above a showing that PCR
counsel defaulted a “substantial” claim of trial-counsel IAC,
in order to establish “cause” for the procedural default.
 DETRICH V. RYAN 17

B. Discovery and Evidentiary Hearing

Martinez does not apply to claims that were not
procedurally defaulted, but were, rather, adjudicated on the
merits in state court. For procedurally defaulted claims, to
which Martinez is applicable, the district court should allow
discovery and hold an evidentiary hearing where appropriate
to determine whether there was “cause” under Martinez for
the state-court procedural default and to determine, if the
default is excused, whether there has been trial-counsel IAC.
The Court recognized in Martinez that determining whether
there has been IAC often requires factual development in a
collateral proceeding. The Court emphasized that IAC claims
can require “investigative work” and development of an
“evidentiary basis” that “often turns on evidence outside the
trial record.” Martinez, 132 S. Ct. at 1317; cf. id. at 1318
(explaining that some states require delaying trial-counsel
IAC claims until post-conviction proceedings because
“[d]irect appeals, without evidentiary hearings, may not be as
effective as other proceedings for developing the factual basis
for the claim.”). For example, to determine whether an
attorney’s performance was deficient, it is often necessary to
ask the attorney to state the strategic or tactical reasons for his
or her actions. To determine prejudice, it is often necessary
to authorize discovery and conduct an evidentiary hearing to
assess the effect of the attorney’s deficient performance.

The Supreme Court held in Cullen v. Pinholster,
131 S. Ct. 1388 (2011), that a federal habeas court is
ordinarily confined to the evidentiary record made in state
court. However, Pinholster does not prevent a district court
from holding an evidentiary hearing in a Martinez case.
Pinholster applies when a “claim” has been “‘adjudicated on
the merits in State court proceedings.’” Id. at 1398 (quoting
18 DETRICH V. RYAN

28 U.S.C. § 2254(d)). But Pinholster’s predicates are absent
in the context of a procedurally defaulted claim in a Martinez
case in which a habeas petitioner seeks to excuse his default.
First, “cause” to excuse a procedural default under Martinez
is not a “claim.” A finding of IAC by the PCR counsel under
Martinez is only an “equitable” ruling that there is “cause”
excusing the state-court procedural default. Martinez,
132 S. Ct. at 1319–20. Second, in a Martinez case, neither
the underlying IAC claim nor the question of PCR-counsel
ineffectiveness has been adjudicated on the merits in a state-
court proceeding.

Martinez would be a dead letter if a prisoner’s only
opportunity to develop the factual record of his state PCR
counsel’s ineffectiveness had been in state PCR proceedings,
where the same ineffective counsel represented him. See
Strickland, 466 U.S. at 694 (noting the unfairness of applying
the restrictive “newly discovered evidence standard” where
ineffective assistance of counsel was the reason the evidence
was not discovered earlier). The same is true of the factual
record of his trial-counsel’s ineffectiveness. In deciding
whether to excuse the state-court procedural default, the
district court thus should, in appropriate circumstances, allow
the development of evidence relevant to answering the linked
Martinez questions of whether there was deficient
performance by PCR counsel and whether the underlying
trial-counsel IAC claims are substantial.

If the district court holds an evidentiary hearing before
ruling on the Martinez motion, evidence received at that
hearing is not subject to the usual habeas restrictions on
newly developed evidence. Evidentiary hearings to develop
the factual basis of a “claim” are ordinarily governed by
28 U.S.C. § 2254(e)(2). But as we have already noted, a
 DETRICH V. RYAN 19

prisoner making a Martinez motion is not asserting a “claim”
for relief but instead is seeking, on an equitable basis, to
excuse a procedural default. See Martinez, 132 S. Ct. at
1319–20; cf. id. at 1320 (finding that § 2254(i) does not apply
to a Martinez motion because “cause” to overcome a
procedural default “is not synonymous with a ‘ground for
relief’”). Indeed, even with respect to the underlying trial-
counsel IAC “claim,” given that the reason for the hearing is
the alleged ineffectiveness of both trial and PCR counsel, it
makes little sense to apply § 2254(e)(2). The Court made the
nature of the problem clear in Strickland:

Even when the specified attorney error results
in the omission of certain evidence, the newly
discovered evidence standard is not an apt
source from which to draw a prejudice
standard for ineffectiveness claims. The high
standard for newly discovered evidence
claims presupposes that all the essential
elements of a presumptively accurate and fair
proceeding were present in the proceeding
whose result is challenged. An ineffective
assistance claim asserts the absence of one of
the critical assurances that the result of the
proceeding is reliable, so finality concerns are
somewhat weaker and the appropriate
standard should be somewhat lower.

466 U.S. at 694.

C. New Trial-Counsel IAC Claims

The fact that some trial-counsel IAC claims may have
been properly raised by the allegedly ineffective state PCR
20 DETRICH V. RYAN

counsel does not prevent a prisoner from making a Martinez
motion with respect to trial-counsel claims that were not
raised by that counsel. Nothing in Martinez suggests that a
finding of “cause” excuses procedural default only when state
PCR counsel raised no claims of trial-counsel IAC
whatsoever. Rather, Martinez authorizes a finding of “cause”
excusing procedural default of any substantial trial-counsel
IAC claim that was not raised by an ineffective PCR counsel,
even if some trial-counsel IAC claims were raised.

The Court wrote in Martinez:

Where . . . the initial-review collateral
proceeding is the first designated proceeding
for a prisoner to raise a claim of ineffective
assistance at trial, the collateral proceeding is
in many ways the equivalent of a prisoner’s
direct appeal as to the ineffective-assistance
claim. . . .

As Coleman recognized, an attorney’s errors
during an appeal on direct review may
provide cause to excuse a procedural default;
for if the attorney appointed by the State to
pursue the direct appeal is ineffective, the
prisoner has been denied fair process and the
opportunity to comply with the State’s
procedures and obtain an adjudication on the
merits of his claims.

Id. at 1317. The concerns expressed by the Court apply
equally to all claims of trial-counsel IAC. As the Court
recognized, an ineffective PCR counsel’s failure to raise a
valid claim of trial-counsel IAC is a denial of fair procedure.
 DETRICH V. RYAN 21

It is no less a denial of fair procedure if the ineffective PCR
counsel happened to raise other, less viable, claims of trial-
counsel IAC.

We therefore read Martinez to allow new claims of trial-
counsel IAC, asserted for the first time on federal habeas,
even if state PCR counsel properly raised other claims of
trial-counsel IAC. The Court implicitly confirmed this
reading in Trevino, where it held that Martinez applied to
Trevino’s procedurally defaulted trial-counsel IAC claims
even though Trevino’s state PCR counsel had presented other
trial-counsel IAC claims during the initial-review collateral
proceeding. See Trevino, 133 S. Ct. at 1915–16.

III. Remand to the District Court

We remand to the district court under Martinez to
determine, in the first instance, whether there is “cause” to
excuse state PCR counsel’s procedural default. If the district
court finds that there was “cause,” it should then address on
the merits the substantial trial-counsel IAC claims that it
previously held procedurally defaulted under pre-Martinez
law. As to these claims, the two-step cause and prejudice test
of Strickland applies. Depending on its ruling on the merits
of these new trial-counsel IAC claims, the district court may
have occasion to revisit its earlier conclusion in this case that
the deficient performance of trial counsel did not cause
prejudice within the meaning of Strickland.

A standard practice, in habeas and non-habeas cases alike,
is to remand to the district court for a decision in the first
instance without requiring any special justification for so
doing. In cases where there is little doubt about the correct
answer, we will sometimes decide an issue in the first
22 DETRICH V. RYAN

instance rather than remand to the district court. But our
general assumption is that we operate more effectively as a
reviewing court than as a court of first instance. We see no
reason why a remand to the district court in a Martinez case
should be treated differently from a remand in other cases.
Indeed, we have remanded Martinez motions for initial
decision by the district court on prior occasions, including in
Martinez itself. See, e.g., Martinez v. Ryan, 680 F.3d 1160
(9th Cir. 2012).

The dissenters in this case believe that Detrich’s Martinez
motion has so little merit that we can confidently decide it
ourselves, with little risk that we will misunderstand the trial-
court record or that we will mistakenly conclude that
evidentiary development will not alter our view of the case.
When we remand to the district court for a decision in the
first instance, we usually do not provide a preliminary
analysis of the relevant evidence or law. We simply leave it
to the district judge to decide the remanded matter. Here,
however, we feel compelled to respond to the dissent’s
conclusion that Detrich’s defaulted claims of trial-counsel
IAC in this capital case are so obviously meritless that we can
safely decide his motion. We therefore describe the state trial
record and provide an analysis of why we believe that
Detrich’s new trial-counsel IAC claims are sufficiently
plausible that we should remand to the district court to decide
in the first instance whether they are “substantial” within the
meaning of Martinez.

The central question is whether any of Detrich’s newly
presented trial-counsel IAC claims prejudiced him at
sentencing. Even if, based on new evidence, the jury were
unwilling to find beyond a reasonable doubt that Detrich was
the actual killer, it would almost certainly convict him of
 DETRICH V. RYAN 23

felony murder. Under the circumstances of this case, a
felony-murder conviction would likely still make Detrich
death-eligible. However, the trial judge did not sentence
Detrich to death for felony murder. Instead, the judge
sentenced Detrich to death based on his own conclusion,
beyond a reasonable doubt, that Detrich rather than Charlton
killed Souter. Thus, in practical effect, Detrich’s trial-counsel
IAC claims are primarily directed to his sentence rather than
his conviction. The question is whether, if the evidence that
Charlton was the actual killer were stronger — and the
evidence against Detrich therefore weaker — Detrich would
nonetheless have been sentenced to death.

To evaluate substantiality under Martinez, it is necessary
to assess the evidence at trial. If the evidence that Detrich
killed Souter were overwhelming and unassailable, as the
dissent contends, then any deficient performance by Detrich’s
counsel in failing to present additional evidence would be
very unlikely to have altered the sentencing judge’s
conclusion beyond a reasonable doubt that Detrich was the
killer. In that event, we could safely conclude that Detrich
has no real chance of showing that his new trial-counsel IAC
claims are “substantial.” But if the trial evidence were close,
then it would not take too much new exculpatory evidence to
call into question the trial judge’s sentencing decision.

We need look no further than the jury verdict to get a
general sense of the strength of the evidence. Three out of
the twelve jurors refused to convict Detrich of premeditated
murder. They were willing to convict Detrich of only felony
murder. The dissent contends that these three jurors could
have concluded that Detrich was the actual killer, but that he
lacked the premeditation necessary for a first-degree murder
conviction. See Dissent at 65–66 n.7. However, neither the
24 DETRICH V. RYAN

prosecution nor Detrich advocated such a theory at trial. In
fact, the prosecution strenuously argued against finding either
second-degree murder or manslaughter, stating during closing
argument that “[t]here is no way . . . that one can argue it is
not premeditated.” None of the witnesses supported a theory
of non-premeditated killing either, so there is little reason to
believe that the jurors adopted this view of events.

A description of the evidence at trial shows why the jurors
may have been hesitant to find that Detrich killed Souter. We
first describe the evidence. We then discuss four of Detrich’s
trial-counsel IAC claims that may be “substantial” under
Martinez.

A. Evidence at Trial

Alan Charlton and David Detrich, two white men, were
driving in Charlton’s car one evening after drinking heavily.
They picked up a black woman, Elizabeth Souter. They
drove with Souter to a bar where Souter knew to get drugs.
They then drove to Souter’s house. In the house were
Souter’s two adult daughters and an adult white woman. The
drugs were bad, and Detrich threatened Souter with a small
knife because they were bad. Detrich and Charlton then
drove away from the house with Souter. Souter’s body was
discovered in the desert two days later. She had been stabbed
numerous times. The critical question in the case was who
killed Souter — Detrich or Charlton.

The following evidence was presented at trial. We
describe the evidence that Detrich killed Souter, including all
of the evidence described by the dissent. Unlike the dissent,
we also describe the evidence that Charlton killed her.
 DETRICH V. RYAN 25

1. Events Inside the House

Three adult women were in Souter’s house when she
came home with Detrich and Charlton — Gwen and Caprice
Souter, Souter’s daughters; and Tammy Winsett, a white
woman. Gwen had a baby and never came out of the
bedroom. She never saw Detrich or Charlton.

Caprice and Winsett testified that they, Souter, and the
two men were together in the living room. They testified that
Detrich became angry when he and Souter discovered that the
drugs were bad. They testified that Souter took off her dress
and lay down on a mattress on the floor. Winsett testified
that Detrich then lay down next to Souter and told her that she
would have to have sex with him because the drugs were bad.
Caprice and Winsett testified that Detrich held a small knife
to Souter’s throat. No one testified that Detrich in fact had
sex with Souter on the mattress.

Winsett testified that she sat on the couch in the living
room with Charlton. She testified that Charlton told her he
had previously killed someone. Winsett added: “He told me
if I lied to him, if I stabbed him in the back, or he said if I
fucked him over, he would kill me, too.”

Gwen Souter, who was in the bedroom and who never
saw Detrich or Charlton, testified that she heard Detrich say,
“I will kill you.” She identified Detrich as the speaker based
solely on the sound of his voice, after hearing Charlton speak
in court months later. (Detrich did not testify.) Neither
Caprice nor Winsett, who were in the living room with
Detrich and the victim, testified that they heard Detrich say
“I will kill you.” The only witness in the room who testified
26 DETRICH V. RYAN

that she heard a man say he would kill someone was Winsett,
who testified that Charlton had said he would kill her.

2. Events Outside the House

Souter was taken outside and put into Charlton’s car. It
is not clear who forced her into the car. Winsett was the only
one of the three women who testified about events outside.
She had left the house to call the police and was half a block
away. It was late at night, and there were no street lights.
Winsett testified that there was some moonlight. “[I]t was
kind of dark but you could see a little bit.” Winsett could not
determine who forced Souter into the car. She testified, “I
saw them. I don’t know who put her in the car or what. They
were all on the passenger side and then they put her in the
car.”

Charlton testified that Detrich forced Souter into the car
at knife-point. But Winsett never testified that she saw a
knife. It is unlikely that Detrich would have used the knife he
had held while still in the house. After the murder, a small
knife was found in the living room. That knife was almost
certainly the knife Detrich had held to Souter’s throat when
he lay next to her on the mattress.

An expert testified that Charlton’s fingerprints were found
on the inside of the driver’s side window while Detrich’s
prints were found on the exterior of the car on the front
passenger-side fender. There was no testimony regarding
when these prints were left, whether in the days leading up to
the murder, on the night of the murder itself, or sometime
thereafter.
 DETRICH V. RYAN 27

3. Charlton’s Testimony Regarding Events in the Car

Charlton testified that he drove the car away from
Souter’s house, with Detrich in the middle of the front seat
and Souter in the front seat next to the passenger-side door.
Charlton did not explain how Detrich ended up sitting in the
middle if Detrich had forced Souter into the car from the
passenger side. He also did not explain why they would have
allowed Souter, a kidnapping victim, to sit by the passenger-
side door where she could escape by simply opening the door.

Charlton testified that while driving he looked over and
saw that Detrich was “on top of” Souter, “humping her.”
Charlton stated that he “couldn’t tell” whether or not Detrich
was having actual intercourse. In a previous trial, Charlton
had testified that he saw Detrich “raping” Souter. He had
stated multiple times at that trial that he saw actual
intercourse occurring. Both of these accounts differed from
Charlton’s initial statement to police, which was introduced
in the final trial. In that statement, Charlton said that he
could not tell whether Detrich was having either oral or
vaginal sex with Souter because he was “paying attention to
the road.” When confronted with this inconsistency, Charlton
testified that he had “remembered some things” since the time
of his initial statement. The state’s expert pathologist
testified that he had found no physical evidence of sexual
assault.

Charlton testified that he looked over later and saw that
Souter’s throat had been slit. He testified that Detrich hit
Souter and asked her several times who had provided the bad
drugs; Souter “just gurgled something” in response. Charlton
testified that Detrich then “asked me if I wanted a shot of it,
it is dead but it is warm.” Charlton testified that he declined,
28 DETRICH V. RYAN

and that they then drove to the desert where Detrich deposited
Souter’s body.

As the dissent notes, some of the forensic evidence
regarding the manner of death was consistent with Charlton’s
account. For example, the state’s pathologist testified that
Souter received forty cutting or stabbing wounds as well as
additional blunt-force injuries. Charlton’s knowledge of the
manner of death indicates that he was present at Souter’s
murder, but it does nothing to establish whether he or Detrich
killed her.

4. Knives Found on Detrich and Charlton

The police found a knife on Detrich when he was
arrested. Charlton testified that the knife was his, and that he
had not given it to Detrich. Charlton claimed that the knife
must have fallen out of his pocket and that Detrich must have
picked it up.

Charlton testified that the knife found on Detrich was the
only knife he saw Detrich holding on the night of the murder.
He testified that he later saw the knife covered in blood. The
prosecutor suggested at the outset of the trial that Detrich
killed Souter with this knife. In its narrative of the evidence,
the Arizona Supreme Court also suggested that Detrich killed
Souter with this knife. See Detrich II, 932 P.2d at 1332;
Dissent at 56–57.

The knife found on Detrich was not the murder weapon.
The state’s expert who performed the autopsy testified that
Souter’s wounds were 0.9 centimeters wide on the skin’s
surface. The blade of the knife found on Detrich was 1.7
centimeters wide. The expert testified that Detrich’s knife
 DETRICH V. RYAN 29

could not have caused Souter’s stab wounds because it was
much too wide.

The police found a knife on Charlton when they arrested
him. The knife was engraved with the letters “FTW,” which
stood for “Fuck The World.” Charlton testified that this knife
was in his pocket on the night of the murder. The state’s
expert testified that this knife was more consistent with
Souter’s wounds than the knife found on Detrich.

5. Testimony of Phillip Shell

Phillip Shell testified that Charlton confessed to him in
jail that he had stabbed Souter. Shell testified that Charlton
had bragged to him about having lied in court, and that he had
bragged about getting Detrich the death penalty.

According to Shell, Charlton told him that after leaving
Souter’s house he parked the car behind a bar. Detrich started
kissing Souter in the front seat. Charlton grew angry that
Detrich was kissing a black woman, especially after she had
short-changed him on the drugs. Charlton pulled out a knife
and stabbed Souter. Souter “went crazy,” and Charlton cut
her throat. After killing Souter, Charlton climbed into the
back seat and passed out.

Some of the evidence at trial corroborated Shell’s story.
Charlton testified that they were driving when Detrich killed
Souter; that they then drove to where Detrich left Souter’s
body; and that they then drove straight to his friend William
Carbonell’s house. The entire trip described by Charlton at
trial would have taken about forty-five minutes. But
according to other evidence at trial, several hours elapsed
between the time they left Souter’s home and the time they
30 DETRICH V. RYAN

arrived at Carbonell’s house. Charlton never explained how
they spent the rest of the time. Shell explained that Charlton
told him that he spent this time sleeping in the back seat of
the car. Charlton also never explained why the police found
a pair of bloodstained jeans in the back seat. The stains were
consistent with Charlton having wiped his hands on the jeans
before going to sleep in the back seat.

Unlike other jailhouse snitches, Shell testified against the
interest of the prosecution. He received no benefit from
testifying. In fact, he was kept in custody after he was
acquitted in his own case in order to testify in Detrich’s.
Charlton admitted that he had spoken to Shell in jail, and that
he had never had any fights or disagreements with him.

6. Testimony of William Carbonell

William Carbonell worked with Charlton at Ocotillo
Motors in Benson, Arizona. Carbonell and Charlton were
friends. Carbonell had sold Charlton the car that Charlton
drove on the night of the murder. A day after the murder,
Carbonell drove Charlton to work from Tucson to Benson, a
distance of about 45 miles.

Detrich also worked at Ocotillo Motors. Showing his
degree of friendship with Detrich, Carbonell testified that
Detrich had worked at Ocotillo Motors for six months, and
that the two of them had gone drinking together on multiple
occasions. However, the owner of Ocotillo Motors testified
that Detrich had been an employee for only a month.

Carbonell testified at trial that Charlton and Detrich
arrived at his house the morning after the murder. He
testified that Detrich was covered in blood. He testified that
 DETRICH V. RYAN 31

Charlton had blood on only his right side. Carbonell had
initially told police that Detrich and Charlton were both
covered with blood without specifying that Charlton had
blood on only one side. His earlier statement to police was
introduced at trial. The prosecutor used Carbonell’s trial
testimony to emphasize his theory of the case — that
Charlton had been driving while Detrich killed Souter, which
accounted for Charlton having blood on only his right side.
The evolution of Carbonell’s story was obviously helpful to
the prosecution. The prosecutor who elicited Carbonell’s
testimony was later disbarred for suborning perjury in another
capital case. See In re Peasley, 90 P.3d 764 (Ariz. 2004) (en
banc).

Carbonell testified that Detrich confessed to him on the
morning after the murder that he had stabbed Souter.
Carbonell’s testimony that Detrich had confessed to him was
critical to the state’s case. As we discuss below, however,
Carbonell had earlier made an inconsistent statement to
investigators. Detrich’s attorney failed to introduce that
statement into evidence.

7. Scratches on Charlton

There were scratches or cuts on Charlton’s arm at his
arrest. Charlton never explained where they came from.
There were also wounds on Souter’s hands. The state’s
expert testified that Souter’s wounds were consistent with
“defensive injuries” from trying to fight off an attacker.
There were no scratches or cuts on Detrich.
32 DETRICH V. RYAN

8. Charlton’s Racism

Two witnesses testified that Charlton was prejudiced
against black people. First, Phillip Shell testified that
Charlton referred to Souter as “that black bitch” and referred
to Detrich as a “nigger lover.”

Second, Charlton’s wife, Deborah Charlton, testified that
Charlton did not like black people “at all” and referred to
them as “mud ducks.” Deborah’s testimony was undermined
by the fact that she and Charlton were in the midst of an
acrimonious divorce. Deborah’s testimony was further
undermined by a support letter she had written to the court
some time earlier, during Charlton’s sentencing for his
participation in the kidnapping and death of Souter. In that
letter, she made no mention of any racism.

9. Other Evidence of Charlton’s Violent Tendencies

Charlton testified at trial that he wore Grim Reaper
earrings — the “sign of death” — on the night of the murder.
He testified that he was very upset at the time because his
marriage had fallen apart and his wife had given their kids up
for adoption without his knowledge. He testified, “I didn’t
care if I lived or died.”

Deborah Charlton testified that Charlton had an
“obsession” with Bruce Lee. She testified that he “would go
to an import store and constantly look at the swords” and
other martial arts paraphernalia. The police found a third
knife Charlton owned at his house when they arrested him: a
“[d]ouble-edged hunting knife.” Deborah testified that
Charlton sometimes carried this knife in a sheath down his
 DETRICH V. RYAN 33

leg. She also testified that Charlton threatened to kill her
with it the night she left him.

B. New Trial-Counsel IAC Claims

The dissent rejects several of Detrich’s trial-counsel IAC
claims for reasons unrelated to their substance. First, the
dissent points out that some of Detrich’s trial-counsel IAC
claims were adjudicated on the merits by the first state PCR
court and were thus never procedurally defaulted. We agree
with the dissent that Martinez does not apply to such claims,
and that the following three claims were adjudicated on the
merits: (1) trial counsel failed to bring witness Shell to court
to testify; (2) trial counsel failed to rehabilitate jurors
regarding death-penalty qualification; and (3) trial counsel
failed to object to prosecutorial vouching during cross-
examination of Charlton. However, we do not agree with the
dissent as to one claim. Detrich claims that three pieces of
evidence should have been subjected to further testing. We
agree with the district court that this claim was not
adjudicated but was, rather, procedurally defaulted.

Second, the dissent would hold that two of Detrich’s trial-
counsel IAC claims were waived for purposes of Martinez
because he did not raise them with sufficient specificity in his
motion to remand to the district court. Those claims are: (1)
trial counsel failed to interview two key witnesses, Darci and
Donald Bell; and (2) trial counsel failed to cross-examine
William Carbonell by introducing a prior inconsistent
statement. We do not agree with the dissent that these claims
are waived. Detrich moved in this court for a remand to the
district court for a determination of “cause” under Martinez
after supplemental briefing in that court. His motion did not
ask us to make the initial decision whether there was “cause.”
34 DETRICH V. RYAN

Detrich’s then-pending appeal before our en banc court
involved other issues. None of the briefs or excerpts of
record had been prepared with Martinez in mind. Indeed,
they could not have been, since the Court decided Martinez
after briefing on appeal was complete. Because Detrich
moved in our court for a remand and not for a ruling under
Martinez, and because he was subject to our relatively
stringent page limits for a motion to this court, he explicitly
stated that he was providing only a “summary” of his
underlying trial-counsel IAC claims. He referred us to his
amended habeas petition for a fuller description of those
claims.

To the extent the dissent would reach the merits of
Detrich’s contention that he can show “cause” under
Martinez, it would hold that none of the procedurally
defaulted trial-counsel IAC claims is “substantial.” Unlike
the dissent, we do not decide whether Detrich’s procedurally
defaulted trial-counsel IAC claims are “substantial.” We
remand for the district court to decide that question in the first
instance.

However, we feel compelled, given the dissent, to show
that some of Detrich’s trial-counsel IAC claims are
sufficiently plausible to warrant remanding to the district
court. The following four procedurally defaulted claims
support our decision to remand to the district court for a
decision under Martinez in the first instance.

1. Failure to Interview Darci and Donald Bell

Detrich alleges that his trial counsel was ineffective for
failing to interview Detrich’s sister and brother-in-law, Darci
and Donald Bell. Neither Darci nor Donald testified at trial.
 DETRICH V. RYAN 35

In an affidavit presented to the district court, Darci states that
she saw Detrich the morning after the murder. She states that
she washed Detrich’s bib overalls and that they had no blood
on them. She states, further, that the police officers
investigating the crime were extremely aggressive, searching
her house with guns drawn and without a warrant. Finally,
she states that the officer who interviewed her “stopped the
tape a few times to tell me what I was supposed to say.”
Donald describes similar police conduct in his affidavit.
According to Darci and Donald, Detrich’s attorneys never
contacted them.

Detrich’s trial counsel was on notice in numerous ways
that the Bells had useful information. Darci states that she
“left many messages” for Detrich’s attorney, but he never
responded. Darci reports that Detrich gave his attorney her
contact information as well. Charlton testified in one of the
earlier trials that Detrich had asked him for a ride to Darci’s
house the morning after the murder. Charlton testified that
Detrich said Darci “was going to wash his clothes for him.”
Charlton’s testimony indicated that there was blood on
Detrich’s clothes that needed to be washed off. It also made
clear that Darci could have been a key witness.

Trial counsel’s failure to contact Darci and call her as a
witness may have prejudiced Detrich in several ways. First,
Darci’s eyewitness statements that there was no blood on
Detrich’s clothes would have directly rebutted Charlton and
Carbonell’s accounts. Darci did not see Detrich immediately
after the murder, but she saw him later the same morning,
after he left Carbonell’s house. Detrich did not return home
in the interim, and there is no evidence that he washed his
clothes before arriving at Darci’s. To the contrary, Charlton
36 DETRICH V. RYAN

testified that Detrich asked Charlton to take him to Darci’s
house specifically so that she could wash his clothes for him.

Darci states unambiguously that she washed Detrich’s
clothes, including his “bib overalls,” and that they did not
have blood on them. Charlton testified that Detrich was
wearing bib overalls the night of the murder and that they
were “saturated” with blood. Detrich was wearing the
overalls when he arrived at Carbonell’s house allegedly
covered in blood, as Carbonell recounted to investigators:

Q: What were they wearing, do you recall?

[Carbonell]: [Detrich] had a set of bib overalls
on that he had on the day before, and
[Charlton], he just had a regular pair of Levis
and a shirt on, I think. And, they was both all
covered with blood.

(Emphasis added.) Darci’s testimony would have directly
rebutted Charlton and Carbonell’s accounts that the same
overalls were saturated with blood. The dissent speculates,
somewhat oddly and entirely without evidence, that Detrich
might have been carrying multiple pairs of “bib overalls.”

Second, Darci’s testimony that the police instructed her
to lie would have suggested that other witnesses were not
testifying truthfully. For example, her testimony would have
raised additional doubts about why Carbonell’s story about
the blood on Charlton had improved at trial. Finally, Darci
stated in her affidavit that Charlton’s earring was “an Aryan
Nation symbol.” As we discuss next, testimony about
Charlton’s connection to the Aryan Nation (or Brotherhood)
 DETRICH V. RYAN 37

would have strengthened the evidence of Charlton’s motive
for the killing.

2. Failure to Investigate and Introduce Evidence Against
Charlton

Detrich alleges that his trial counsel was ineffective for
failing to interview or investigate Charlton and for failing to
introduce evidence of Charlton’s connections to the Aryan
Brotherhood. Detrich’s trial counsel never tried to interview
Charlton before trial. He also failed to investigate Charlton’s
connections to the Aryan Brotherhood, a violent white
supremacist organization. James Williams, defense counsel’s
investigator, stated in a post-trial affidavit:

I was not asked by defense counsel to pursue
or conduct interviews of witnesses pertaining
to the issue of [Charlton’s] involvement with
the Aryan Brotherhood; I believe this was
important since [Charlton] was known to be
involved with the Aryan Brotherhood, and
have a hatred of African-Americans, whereas
Mr. Detrich did not have such a hatred; the
victim in this matter was African-American.

Deborah Charlton told investigator Williams before trial
that her husband was involved with the Aryan Brotherhood
while in jail. Charlton had been in jail for three years at the
time. There were numerous people in the jail who might have
known about Charlton’s Aryan Brotherhood affiliations.
Further, Charlton might also have discussed with other
inmates his involvement in Souter’s murder. Williams stated
in a post-trial interview that this was common in his
experience, noting that “they can’t keep their mouths shut for
38 DETRICH V. RYAN

a month over in Pima County jail so after three years they’re
all bragging there.” Phillip Shell testified that this was
precisely what Charlton had done in confessing to him.

Williams suggested to defense counsel that he go to the
jail, request Charlton’s records, and interview officers and
Charlton’s former cell mates. Williams thought it was “really
critical” to perform this investigation. Defense counsel
rejected Williams’ suggestion.

Defense counsel’s failure to develop and introduce
evidence of Charlton’s Aryan Brotherhood connection, as
well as additional evidence of his racism, may have
prejudiced Detrich. Even though Charlton’s trial testimony
was impeached in some respects, the jury would have found
it difficult to accept that he was the actual killer without a
coherent explanation for why he would have killed Souter.

Charlton’s racist attitudes were his alleged motivation for
killing Souter, but evidence at trial of Charlton’s racism was
weak. Only two witnesses testified to his racism: Phillip
Shell and Deborah Charlton. Deborah had credibility
problems since she and Charlton were in the midst of a
contentious divorce. The prosecutor also impeached Deborah
with her prior letter to the court, in which she had described
Charlton in entirely positive and non-racist terms.

In closing arguments, the prosecutor specifically
commented on the weakness of the evidence of Charlton’s
racism:

[Defense counsel] suggested . . . Alan
Charlton doesn’t like blacks and had a pet
 DETRICH V. RYAN 39

name for them. That came from but one
witness, Mr. Charlton’s soon-to-be ex-wife.

Number one, I would submit to you that the
Defendant doesn’t have any burden in this
case. He doesn’t have to call a witness. He
doesn’t have to do anything. But what he
does have is the subpoena power. I can
assure you that if any of that were true, that
Charlton didn’t like blacks and has a grudge
against them that would somehow or another
explain what happened here, you would have
seen a line of witnesses come up to the witness
stand. They weren’t called because it simply
isn’t true. You had a chance to hear the
testimony of the soon-to-be ex-wife of Alan
Charlton and she simply lied. Exactly why, I
don’t know, and I don’t — you can use your
common sense as well.

(Emphasis added.) Additional evidence of Charlton’s racism
would have foreclosed the prosecutor’s argument. The
prosecutor may also have committed misconduct — to which
defense counsel did not object — by giving his personal
assurance that there were no other witnesses to testify to
Charlton’s racist beliefs and by stating his opinion that a
defense witness had lied. See United States v. Necoechea,
986 F.2d 1273 (9th Cir. 1993) (prosecutorial misconduct to
comment on facts not in evidence); United States v. Garcia-
Guizar, 160 F.3d 511 (9th Cir. 1998) (prosecutor
impermissibly vouched by calling defendant a “liar”).

There was no evidence whatsoever introduced at trial
about Charlton’s connections to the Aryan Brotherhood. The
40 DETRICH V. RYAN

Aryan Brotherhood is a powerful white supremacist group
responsible for a number of race-based murders. Even if the
jury believed that Charlton did not like black people, it would
have been qualitatively different to know that he was
involved in the Aryan Brotherhood, whose members commit
racially motivated murders.

3. Failure to Conduct Forensic Testing

Detrich alleges that his counsel was ineffective for failing
to conduct independent forensic testing of three pieces of
evidence: human hairs found on Souter, the knives alleged to
be possible murder weapons, and a needle found at Souter’s
house. In his first PCR petition, Detrich alleged that his trial
counsel was ineffective for failing adequately to test “the
physical evidence.” He specifically named certain pieces of
evidence, including the front-seat covers of Charlton’s car, a
jacket recovered with the seat covers, and the jeans found in
the back seat. He did not mention the hairs found on Souter,
the knives alleged as murder weapons, or the needle. The
PCR court denied the evidentiary-testing claim raised in that
court, specifically discussing the seat covers, the car, and the
victim’s fingernail. The district court found that the forensic-
testing claim had been properly raised before the first state
PCR court as to the pieces of evidence listed in the PCR
petition. But it held that the claim had been procedurally
defaulted in state court as to the hairs, the knives, and the
needle.

The dissent contends that the district court erred in its
determination that the trial-counsel IAC claim as to these
three pieces of evidence was defaulted. We disagree.
Detrich’s non-specific reference to all of “the physical
evidence” in his first PCR petition did not sufficiently present
 DETRICH V. RYAN 41

the claim to the state court as to each piece of evidence.
Indeed, we have little doubt that, in a non-Martinez setting,
the dissenters would agree that such a catch-all reference did
not exhaust the specific claims later asserted, any more than
a PCR petition asserting trial-counsel IAC for violations of
“all amendments to the U.S. Constitution” would exhaust all
possible constitutional challenges.

On the merits, it is easy to see how testing of this
evidence could have been useful. For example, the state had
begun to test the hairs found on Souter. But the state’s
analyst had insufficient time to complete her testing. As a
result, the analyst could not identify who had left the hairs.
The analyst specifically admits in her affidavit that the step
she skipped might have allowed her to identify the source of
the hairs. If it turns out that Charlton’s hairs were found on
the victim, it would provide additional evidence that he killed
Souter while she struggled against him. Similarly, any
additional evidence that the knife found on Charlton was the
murder weapon would create further doubt that Detrich was
the killer.

The dissent contends that any new forensic evidence
implicating Charlton could not have made a difference
because the existing evidence at trial was so strong. We have
already noted that three jurors do not appear to have believed
that Detrich actually killed Souter. Those jurors convicted
him of only felony murder.

More specifically, the dissent contends that the forensic
evidence at trial corroborated the evidence against Detrich.
The dissent points to the incomplete test results of the hairs
found on the victim, as well as to the testing of fingernails
and the “examinations for fingerprints, blood, and semen in
42 DETRICH V. RYAN

the car.” Dissent at 73. We take in turn the four pieces of
evidence upon which the dissent relies. None of this
evidence demonstrated that Detrich, as opposed to Charlton,
was the killer. If anything, it pointed to Charlton as the actual
killer.

First, one of Souter’s fingernails was found in the car.
Souter may well have lost the nail while trying to fight off her
attacker with her hands. This would be consistent with the
state pathologist’s testimony that Souter had “defensive
injuries.” But the only physical evidence that either Charlton
or Detrich had engaged in a struggle was the scratches on
Charlton’s arms.

Second, Charlton’s fingerprints were found on the
driver’s side of the car. This proved little since Charlton
owned the car. It was uncontested that he had been the driver
on the night of the murder. Detrich’s fingerprints were found
only on the front passenger-side fender.

Third, blood was found on the front-seat covers, including
the seat cover on the driver’s side of the car, and on the jeans
in the back seat. The blood suggested strongly that Souter
had been killed inside the car, but it did not answer the
question of who killed her. The bloody seat cover on the
driver’s side of the car, as well as the jeans in the back seat,
were consistent with Charlton having killed Souter.

Fourth, there was no semen found, in the car or
elsewhere. The state’s pathologist specifically testified that
he found no semen during the autopsy. Not only did the
pathologist testify that he found no semen, he also testified
that he had found no physical evidence of sexual assault. The
pathologist’s testimony cast doubt on Charlton’s claims about
 DETRICH V. RYAN 43

Detrich “humping” or “raping” Souter in the car. It also
reinforced Shell’s testimony that Charlton had killed Souter
when Detrich was only kissing her.

4. Failure to Cross-Examine William Carbonell

Detrich alleges that defense counsel failed to cross-
examine Carbonell with a prior inconsistent statement.
Carbonell testified at trial that Detrich had confessed to him
that he had killed Souter:

Q: Tell the jury what it was [Detrich] told you
the second time.

[Carbonell]: [Detrich] told me he killed a girl.

...

Q: Did he say how he killed her?

A: With a knife.

Q: Did he say he cut her throat?

A: Yes, sir.

This testimony was devastating to Detrich. It was also
inconsistent with what Carbonell had stated in a pre-trial
interview with investigators.

Carbonell had stated in his pre-trial interview that Detrich
had not told him that he had killed Souter. Carbonell had
stated that he had merely “surmised” that Detrich had been
44 DETRICH V. RYAN

the killer. He had stated that Charlton told him that Detrich
had killed Souter:

[Carbonell]: [Detrich] didn’t say that he
killed the girl. But, he said [Charlton] was
driving the car. So, I guess — I just sum —
surmised that — that —

Q: Yeah.

A: — he had — he had been the one that cut
the girl. ‘Cause [Charlton] told me later on[]
that he did cut the girl up.

(Emphasis added.) Carbonell’s prior statement thus
specifically contradicted his repeated trial testimony that
Detrich had confessed to killing Souter.

The jury never heard Carbonell’s prior statement because
Detrich’s trial counsel failed to introduce it. Carbonell’s
testimony about Detrich’s confession was one of the most
damaging pieces of evidence at trial. In sentencing Detrich
to death, the trial judge specifically cited Detrich’s alleged
confession to Carbonell that he had “‘[k]illed some chick for
getting bad drugs.’” Carbonell’s prior statement would have
directly contradicted his own testimony. Without this
testimony, the state’s only direct evidence of guilt came from
Charlton, who had an obvious motive to lie and whose story
was contradicted by other evidence in the record.

The dissent writes that Carbonell’s prior statement was
that Detrich had told him that “Charlton was driving at the
time” Souter was killed. Dissent at 68. If this were true,
Detrich’s reported statement would have implied that he had
 DETRICH V. RYAN 45

killed Souter. But Carbonell did not say that. In his prior
statement, Carbonell said only that Detrich had told him that
Charlton “was driving” the car. It was uncontested that
Charlton was driving the car on the night of the murder.
Carbonell never stated that Detrich had told him that Souter
had been killed while Charlton was driving.

The dissent also asserts that any difference between
Carbonell’s testimony and his prior statement was
“negligible.” Dissent at 68. We disagree. Carbonell testified
at trial that a few hours after the murder, Detrich told him that
he had killed Souter by slitting her throat with a knife. In his
prior statement, Carbonell stated that Detrich “didn’t say that
he killed the girl.” Carbonell stated that he had merely
“surmised” that Detrich was the killer based in part on what
Charlton told him. No reasonable trier of fact could find the
difference between these statements to be “negligible.”

Conclusion

We grant Detrich’s motion to remand for the district court
to rule, in the first instance, on his Martinez motion. We do
not reach Detrich’s non-defaulted sentencing-phase IAC
claims. We cannot properly evaluate those claims at this time
because Detrich’s Martinez motion raises additional claims
that his trial counsel’s ineffectiveness prejudiced him at
sentencing. It would be premature to evaluate prejudice from
his non-defaulted claims before we know what additional
prejudice might have resulted from the defaulted ones. We
will reach the non-defaulted claims, if appropriate, after the
district court has decided Detrich’s Martinez motion and any
trial-counsel IAC claims for which Detrich’s state-court
procedural default is excused.
46 DETRICH V. RYAN

The en banc panel will retain jurisdiction over any
subsequent appeal.

VACATED IN PART and REMANDED.

NGUYEN, J., concurring in the result:

I agree with the plurality that Detrich is entitled to a
remand under Martinez v. Ryan, 132 S. Ct. 1309, 182 L. Ed.
2d 272 (2012). I write separately to explain why I disagree
that Martinez modifies the prejudice showings required to
establish ineffective assistance of counsel under Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984), and to overcome a procedural default under Coleman
v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 115 L. Ed. 2d
640 (1991).

There is understandable confusion over how to analyze
“prejudice” in this case given that it involves distinct types of
prejudice for which the Supreme Court has articulated
separate tests. In evaluating the merits of whether trial or
post-conviction counsel rendered constitutionally ineffective
assistance, we follow the standard set forth in Strickland.
This requires a convicted defendant to show both “that
counsel’s performance was deficient” and “that the deficient
performance prejudiced the defense.” Strickland, 466 U.S. at
687. The Strickland prejudice showing is met when “there is
a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different.” Id. at 694.
 DETRICH V. RYAN 47

When the ineffective-assistance-of-counsel claim is
procedurally defaulted, however, we do not necessarily reach
its merits. First, the habeas petitioner must “demonstrate
cause for the default and actual prejudice as a result of the
alleged violation of federal law.”1 Coleman, 501 U.S. at 750.
With respect to “cause,” Coleman held that counsel’s
ineffective assistance constitutes cause to overcome a
procedural default but only where effective assistance is
constitutionally required—i.e., not in post-conviction
proceedings, where there is generally no right to an attorney.
Id. at 754. The prejudice prong requires the petitioner to
establish “not merely that the errors at trial created a
possibility of prejudice, but that they worked to his actual and
substantial disadvantage, infecting his entire trial with error
of constitutional dimensions.” Murray v. Carrier, 477 U.S.
478, 494, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986) (quoting
United States v. Frady, 456 U.S. 152, 170, 102 S. Ct. 1584,
71 L. Ed. 2d 816 (1982)) (internal quotation marks and
ellipsis omitted). “A finding of cause and prejudice does not
entitle the prisoner to habeas relief. It merely allows a federal
court to consider the merits of a claim that otherwise would
have been procedurally defaulted.” Martinez, 132 S. Ct. at
1320.

The Supreme Court left no doubt that Coleman’s cause-
and-prejudice standard applies “[i]n all cases in which a state
prisoner has defaulted his federal claims in state court
pursuant to an independent and adequate state procedural

1
Coleman also recognizes a second way to overcome a procedural
default without showing cause and prejudice—by “demonstrat[ing] that
failure to consider the claims will result in a fundamental miscarriage of
justice.” 501 U.S. at 750. The fundamental-miscarriage-of-justice
exception is not at issue here.
48 DETRICH V. RYAN

rule.” Coleman, 501 U.S. at 750 (emphasis added). Martinez
does not address—let alone modify—the standard’s prejudice
prong. See Martinez, 132 S. Ct. at 1321 (“[T]he Court of
Appeals did not determine whether Martinez’s attorney in his
first collateral proceeding was ineffective or whether his
claim of ineffective assistance of trial counsel is substantial.
And the court did not address the question of prejudice.
These issues remain open for a decision on remand.”); see
also Trevino v. Thaler, 133 S. Ct. 1911, 1917, 185 L. Ed. 2d
1044 (2013) (describing “the issue directly before the Court”
in Martinez as “whether Martinez had shown ‘cause’ to
excuse his state procedural failing”).

Rather, the Supreme Court created a “narrow exception”
to “modify the unqualified statement in Coleman that an
attorney’s ignorance or inadvertence in a postconviction
proceeding does not qualify as cause to excuse a procedural
default.” Martinez, 132 S. Ct. at 1315 (emphasis added).
Post-conviction counsel’s ineffective assistance meets the
cause prong where, among other things, the claim that post-
conviction counsel should have raised but did not—i.e., that
trial counsel rendered ineffective assistance—“is a substantial
one, which is to say that . . . the claim has some merit.” Id. at
1318. I agree with the plurality that this is, in a sense, a
measure of prejudice, and that it is not a demanding standard.
It weeds out a claim of ineffective assistance only if “it does
not have any merit or . . . is wholly without factual support.”
Id. at 1319.

I disagree with the plurality, however, that prejudice can
be presumed. See Plurality op. at 15 (“[A] prisoner need
show only that his PCR counsel performed in a deficient
manner.”). The plurality conflates the situation where a
petitioner has no postconviction counsel with one where there
 DETRICH V. RYAN 49

was postconviction counsel but counsel was ineffective. See
Plurality op. at 14–16. But Strickland warns against
presuming prejudice except where there is “[a]ctual or
constructive denial of the assistance of counsel altogether,”
“state interference with counsel’s assistance,” or “when
counsel is burdened by an actual conflict of interest.”
Strickland, 466 U.S. at 692. In all other cases, a prejudice
showing is necessary. Id. at 693. Thus, a substantial
Strickland claim normally entails a substantial showing of
both deficient performance and prejudice.

I also disagree with the dissent to the extent it wrongly
reads Martinez as modifying Coleman’s prejudice prong. See
Dissent at 58 (“Under Martinez, a court may excuse the
procedural default of an IAC claim in cases like this one if the
petitioner establishes both (1) cause, by showing either that
no counsel was appointed in the initial-review collateral
proceeding or that the appointed post-conviction counsel was
ineffective under [Strickland]; and (2) prejudice, by showing
that the underlying claim of trial counsel’s ineffectiveness is
‘substantial,’ meaning that it has ‘some merit.’”).

The reason Martinez imposes a substantiality requirement
to show cause for the procedural default is straightforward.
If the asserted claim of ineffective assistance by trial counsel
is patently meritless, post-conviction counsel’s failure to raise
it was reasonable and therefore not a ground to excuse the
petitioner from bringing the claim before the state courts in a
procedurally proper manner. Only if the claim is substantial
and Martinez’s other cause requirements are met must the
federal court perform Coleman’s more searching prejudice
inquiry.
50 DETRICH V. RYAN

Although the Coleman and Strickland prejudice standards
are articulated differently, precedents from this court and the
Supreme Court suggest that they are one and the same. See,
e.g., Robinson v. Ignacio, 360 F.3d 1044, 1054 (9th Cir.
2004) (“When conducting a ‘prejudice’ analysis in the
context of [overcoming a procedural default], this court
applies the standard outlined in [Strickland].”); see also Roe
v. Flores-Ortega, 528 U.S. 470, 484, 120 S. Ct. 1029, 145 L.
Ed. 2d 985 (2000) (“[W]e follow the pattern established in
Strickland . . . requiring a showing of actual prejudice (i.e.,
that, but for counsel’s errors, the defendant might have
prevailed) . . . .”).

Consequently, when the cause to excuse a procedural
default is counsel’s constitutionally ineffective assistance, I
agree with the dissent inasmuch as it would require the usual
Strickland prejudice showing to overcome the procedural
default, see Dissent at 59 n.3, though not with its contention
that a “substantial” Strickland claim is relevant to Coleman’s
prejudice inquiry. It is important to distinguish between
Martinez’s substantiality requirement, which focuses on
whether the claim of error by trial counsel is substantial, and
the Strickland/Coleman prejudice requirement in the Martinez
context, which focuses on whether there is a reasonable
probability that the result would have been different if post-
conviction counsel had highlighted trial counsel’s deficient
performance. There is, of course, considerable overlap
between the two. Cf. Moormann v. Ryan, 628 F.3d 1102,
1106–07 (9th Cir. 2010) (“[T]o determine whether appellate
counsel’s failure to raise [ineffective-assistance-of-trial-
counsel] claims was objectively unreasonable and prejudicial,
we must first assess the merits of the underlying claims that
trial counsel provided constitutionally deficient
representation.”).
 DETRICH V. RYAN 51

While I agree in certain respects with the dissent’s view
on how the Martinez analysis should proceed, ultimately I
agree with the plurality and Judge Watford that the district
court is best situated to apply Martinez in the first instance.

WATFORD, Circuit Judge, concurring in the judgment:

I agree with the majority that we should grant petitioner’s
motion to remand the case to the district court, so that the
district court can determine in the first instance whether
petitioner’s procedural default may be excused under
Martinez v. Ryan, 132 S. Ct. 1309 (2012). As the dueling
opinions in this case confirm, assessing whether petitioner’s
ineffective assistance of counsel claims have “some merit”
under Martinez, id. at 1318, requires a highly fact- and
record-intensive analysis. Allowing the district court to
undertake that analysis first is generally the more prudent
course. A remand in such circumstances does not merely
conserve judicial resources, although that is a particularly
important consideration when, as here, we are convened as an
en banc court. It also helps to improve the quality of our
review process by providing an initial determination that may
narrow the bounds of disagreement, and that at a minimum
enables the parties to articulate their positions more
effectively based on a common point of departure. Since this
is a court of review, “not first view,” Holland v. Florida,
130 S. Ct. 2549, 2565 (2010) (internal quotation marks
omitted), I see no need at this point for us to say anything
more than that petitioner’s motion to remand is granted.
52 DETRICH V. RYAN

GRABER, Circuit Judge, with whom KOZINSKI, Chief
Judge, and GOULD, BEA, and MURGUIA, Circuit Judges,
join, dissenting:

I respectfully dissent.

This case presents one question arising under 28 U.S.C.
§ 2254(d)(1): whether the Arizona courts unreasonably
denied Petitioner’s claim that he received ineffective
assistance of counsel (“IAC”) at sentencing. Petitioner’s
motion presents us with a different legal question: whether
the Supreme Court’s recent decision in Martinez v. Ryan,
132 S. Ct. 1309 (2012), allows Petitioner to overcome his
procedural default as to certain claims of IAC concerning the
guilt phase of his trial. The majority decides neither, leaving
the sentencing issue for another day and punting the Martinez
question to the district court. In my view, a remand without
a ruling fosters undue delay. Some of Petitioner’s IAC
claims were waived; as to others, which the state court
decided on the merits, Martinez is irrelevant; and the
remainder do not meet either the “cause” or the “prejudice”
prong of Martinez. I would, therefore, deny the motion to
remand and decide the sentencing IAC claim now.

A. Petitioner’s Martinez Motion

1. The Evidence at Trial

The majority provides a thorough recitation of the
evidence at trial that favored one side: Petitioner. But it
glosses over, dismisses, or ignores substantial evidence on the
other side—evidence that the jury and the sentencing court
found sufficient to establish beyond a reasonable doubt both
Petitioner’s guilt and his eligibility for a capital sentence.
 DETRICH V. RYAN 53

That evidence includes substantial testimonial and
forensic evidence that Petitioner was the killer. Witnesses
testified that Petitioner held a knife to the victim’s throat, that
he demanded that she have sex with him, that he threatened
to kill her, that he forced her into the passenger side of a car,
that he entered the car on the passenger side, and that
Charlton drove the car away. Charlton testified that
Petitioner forced the victim into the car at knife-point, that
Charlton drove the car while Petitioner and the victim were
in the passenger seat and that, at some point, he saw
Petitioner “humping” her. He also testified that, when he
looked over later, the victim’s throat had been slit; in
response to several questions, she made only a “gurgling”
noise. Charlton further testified that Petitioner asked if
Charlton wanted “a shot at it” after the victim was dead and
that Petitioner deposited the body in the desert.

In addition to those witnesses, a pathologist testified that
the victim received at least 40 cutting and stabbing wounds,
as well as numerous blunt-force injuries, which were
consistent with Charlton’s testimony. Another expert
testified that Charlton’s fingerprints were found on the
interior of the driver’s side window of his car, whereas
Petitioner’s prints were found on the passenger side of the
car. And William Carbonell, a co-worker and acquaintance
of Petitioner and Charlton, testified that the two men arrived
at his house covered in blood, that Charlton had blood only
on his right side but Petitioner had blood all over himself, that
Petitioner confessed to killing a woman in a manner that was
consistent with Charlton’s testimony, and that Charlton
related to him an account of what had happened that was
similar to Charlton’s testimony at trial. The majority avoids
the significance of this testimonial evidence, the forensic
evidence that corroborated it and, most importantly, the state
54 DETRICH V. RYAN

court’s determination that the evidence proved, beyond a
reasonable doubt, that Petitioner was the killer.

The trial evidence and the facts of this case were fairly
summarized by the Arizona Supreme Court, as follows:

[Petitioner] and Alan Charlton worked
together at the Ocotillo Motors wrecking yard
in Benson, Arizona. On November 4, 1989, a
Saturday afternoon, [Petitioner] and Charlton
left work and headed to a local bar. Charlton
estimated that he and [Petitioner] each
consumed between twelve and twenty-four
cans of beer. Two hours after they started
drinking, the men drove to Tucson.

Upon arriving in Tucson, [Petitioner] and
Charlton visited several more bars and
consumed more beer. At some point during
the evening, [Petitioner] suggested that they
“pick up” somebody. When the two men saw
the victim, Elizabeth Souter, walking along
the Palo Verde bridge, they stopped the car
and Souter climbed in. [Petitioner] asked her
to help them obtain some cocaine. She agreed
and directed the two men to a “roadhouse”
where [Petitioner] and Souter purchased the
cocaine.

The two men and Souter then drove to
Souter’s home, where [Petitioner] attempted
to “cook a spoon,” which entailed dissolving
the cocaine in a spoon so that it could be
injected. [Petitioner] soon became angry
 DETRICH V. RYAN 55

because the syringe would not pick up the
cocaine. [Petitioner] began “screaming and
hollering that the needle wasn’t any good, or
the cocaine wasn’t any good.” [Petitioner]
told Souter that she was going to pay for the
bad drugs by having sex with him—“He told
her they could go in the room or do it right
there, or they would do it his way, and she did
not want to do it his way.” Three witnesses,
Charlton, Tami Winsett, and Caprice Souter
(the victim’s daughter), confirmed that
[Petitioner] was holding a knife against
Souter’s throat. Additionally, [Petitioner]
threatened, “You must not believe me, I will
kill you.”

[Petitioner] then told Souter, “Come on
bitch, we are going for a ride.” Souter,
Charlton, and [Petitioner] climbed into
Charlton’s car. Charlton drove, [Petitioner]
sat in the middle, and Souter sat up against the
passenger door. [Petitioner] ordered Charlton
to drive out of town. Charlton testified that,
while stopped at a red light, he looked at
[Petitioner] and saw that [Petitioner] was
“humping” Souter and asking her how she
liked it. Moments later, Charlton again
looked and saw that Souter’s throat was slit.
Charlton indicated that [Petitioner] then hit
her and asked her who “she got the shit off
of.” Souter was unable to answer clearly; she
just gurgled something. [Petitioner] then hit
her with his elbow and asked again who she
got the drugs from. She gurgled again in
56 DETRICH V. RYAN

answer. [Petitioner] then asked, “Did you say
Mike?” Souter gurgled a third and final time,
and Charlton heard no more sounds from her.
Although Charlton claims he never saw
[Petitioner] actually stab Souter, Charlton was
himself poked in the arm with the knife three
or four times. The pathologist established that
Souter was stabbed forty times.

At this point, [Petitioner] asked Charlton,
“It’s dead but it’s warm. Do you want a shot
at it?” Charlton declined. They drove to a
remote area approximately fifteen minutes
(seven to nine miles) from Souter’s home.
Charlton pulled the car over at [Petitioner’s]
request, and [Petitioner] dragged Souter’s
body into the desert.

After dumping the body, Charlton and
[Petitioner] drove to their friend William
Carbonell’s house in Tucson. Carbonell
testified that the two men showed up at his
house at 4:00 a.m. [Petitioner] was covered
with blood, but Charlton had blood only on
his right side. Approximately an hour later,
[Petitioner] confessed to Carbonell that he had
killed a girl by slitting her throat. [Petitioner]
explained that he grabbed the girl at her house
and forced her into Charlton’s car at knife
point, where [Petitioner] killed her.
[Petitioner] further explained that he killed
Souter because the drugs she had purchased
were bad.
 DETRICH V. RYAN 57

After several days, Carbonell called in an
anonymous tip to the police, who were able to
trace the call to Carbonell. After questioning
Carbonell, the police went to Ocotillo Motors
and arrested Charlton, who confessed his
involvement in the crime. [Petitioner] was
arrested in New Mexico several days later in
possession of a folding knife. Charlton
identified the knife as his; however, he
explained that it often fell out of his pants.
Charlton confirmed that [Petitioner] possessed
the knife the night of the murder. Charlton
also noticed that [Petitioner] had the knife the
morning after the murder and that it was
covered with blood.

[Co-defendant Charlton pleaded guilty to
a single count of kidnapping and testified
against Petitioner. He was sentenced to ten
and one-half years in prison.]

State v. Detrich (Detrich II), 932 P.2d 1328, 1331–32 (Ariz.
1997) (footnote omitted).1

1
To the extent that Petitioner now seeks to contradict the state court’s
factual determinations, he bears a heavy burden of proof. See 28 U.S.C.
§ 2254(e)(1) (providing that the state court’s factual determinations “shall
be presumed to be correct” unless the petitioner rebuts that presumption
“by clear and convincing evidence”). Indeed, he does not contend on
appeal that the quoted findings are erroneous; as noted, he raises only a
sentencing claim about mitigation.
58 DETRICH V. RYAN

2. Application of Martinez

Under Martinez, a court may excuse the procedural
default of an IAC claim in cases like this one if the petitioner
establishes both (1) cause, by showing either that no counsel
was appointed in the initial-review collateral proceeding or
that the appointed post-conviction counsel was ineffective
under Strickland v. Washington, 466 U.S. 686 (1984); and (2)
prejudice, by showing that the underlying claim of trial
counsel’s ineffectiveness is “substantial,” meaning that it has
“some merit.” Martinez, 132 S. Ct. at 1318–19; see also
Trevino v. Thaler, 133 S. Ct. 1911, 1918 (2013) (noting that
Martinez may apply to a procedurally defaulted trial-phase
IAC claim if “the claim . . . was a ‘substantial’ claim [and]
the ‘cause’ consisted of there being ‘no counsel’ or only
‘ineffective’ counsel during the state collateral review
proceeding” (quoting Martinez, 132 S. Ct. at 1320)).2 A
meritorious Strickland claim requires a showing of both

2
This exception applies only if, “under state law, claims of ineffective
assistance of trial counsel must be raised in an initial-review collateral
proceeding,” Martinez, 132 S. Ct. at 1320, or if the state’s procedural
system “does not offer most defendants a meaningful opportunity” to
present such claims on direct appeal, Trevino, 133 S. Ct. at 1921. In
Martinez, the Supreme Court made clear that Arizona’s procedural rules
fall within the first of those categories.
 DETRICH V. RYAN 59

deficient performance and prejudice. 466 U.S. at 687.3 The
majority and I agree on that much.

I strongly disagree, though, with the majority’s assertion
that any “standard practice” warrants a remand to the district
court for application of those purely legal principles to the
record that is already before us. Maj. op. at 21. We
frequently decide legal issues that an intervening decision of
the Supreme Court has cast in a different light, at least when
“all of the facts relevant to our analysis are fully set forth in
the record.” Phelps v. Alameida, 569 F.3d 1120, 1135 (9th

3
The Martinez framework results in a potential overlap of analysis
because the merits of the underlying guilt-phase IAC claim are relevant to
both prongs. Thus, if the claim is not “substantial” under the second
prong, it is difficult to see how post-conviction counsel’s failure to raise
it could be prejudicial under the Strickland analysis required by the first
prong. This overlap becomes more prominent where, as here, there is
post-conviction counsel but counsel is alleged to be ineffective.

The majority’s answer to this overlap is to hold that a petitioner “need
not show actual prejudice resulting from his PCR counsel’s deficient
performance, over and above his required showing that the trial-counsel
IAC claim be ‘substantial’ under the first Martinez requirement.” Maj. op.
at 15. But the Supreme Court has never suggested that the prejudice
prong of Strickland has a unique meaning in the context of the second
Martinez requirement. The majority relies, oddly, on Justice Breyer’s
non-precedential statement respecting the denial of certiorari in Gallow v.
Cooper, 133 S. Ct. 2730 (2013). Only two justices joined that statement,
so it is not a binding legal authority. And, on its own terms, the statement
is irrelevant. Gallow concerned egregious ineffectiveness by trial counsel;
Justice Breyer merely observed that a failure to present admissible
evidence on such a claim arguably establishes cause because it might have
resulted in the procedural default of that claim—that is, in prejudice. And
Justice Breyer asserted only that the Fifth Circuit might have erred by
refusing to consider evidence on that Martinez claim on account of Cullen
v. Pinholster, 131 S. Ct. 1388 (2011). That issue is distinct from any
presented here.
60 DETRICH V. RYAN

Cir. 2009). Indeed, we have done so when applying Martinez
before. See Miles v. Ryan, 713 F.3d 477, 494–95 (9th Cir.
2013) (applying Martinez, which was decided during the
appeal, to a capital habeas petitioner’s claims).4 Here, the
issue—whether Petitioner’s claims are procedurally
defaulted—is a legal one, see Cooper v. Neven, 641 F.3d 322,
326 (9th Cir.) (noting de novo review of procedural default
determination), cert. denied, 132 S. Ct. 558 (2011), albeit one
that requires our reconsideration after Martinez. There is no
reason not to decide the issue unless further evidentiary
development is necessary. It is not.

Judicial economy and the Antiterrorism and Effective
Death Penalty Act of 1996’s (“AEDPA’s”) policy of reducing
delay in habeas proceedings also favor reaching a decision
now. See Woodford v. Garceau, 538 U.S. 202, 206 (2003)
(“Congress enacted AEDPA to reduce delays in the execution
of state and federal criminal sentences, particularly in capital
cases.” (citing Williams v. Taylor, 529 U.S. 362, 386
(2000))). We have many capital cases currently on appeal in
which the petitioners have filed motions under Martinez. In
the interest of avoiding needless delay, we should first assess

4
We have done the same thing in an array of other contexts. See, e.g.,
Hedlund v. Educ. Res. Inst. Inc., 718 F.3d 848, 853–54 (9th Cir. 2013)
(“Because this court is in as good a position as the district court [to do so],
it independently reviews the bankruptcy court’s decision.” (internal
quotation marks omitted)); United States v. Song Ja Cha, 597 F.3d 995,
1006–07 (9th Cir. 2010) (denying the government’s request for a remand
to allow the district court to apply new Supreme Court precedent to purely
“legal determinations” regarding whether a police seizure warranted
evidentiary suppression); Blanchard v. Morton Sch. Dist., 509 F.3d 934,
938 (9th Cir. 2007) (affirming a judgment that had been incorrect at the
time decided, because an intervening Supreme Court decision provided an
alternate ground to affirm).
 DETRICH V. RYAN 61

whether Martinez applies, before mechanically remanding
such cases.

Furthermore, in this case, the majority’s over-broad
remand will extend that delay beyond what is either necessary
or equitable. The majority sees potential merit in four claims
but, as I will discuss below, two of those claims were not
explicitly raised in Petitioner’s motion. On remand, is the
district court to consider those waived claims, and others like
them? And what about the claims that are properly before us
but that even the majority seems not to view as potentially
meritorious?

3. Petitioner’s Martinez Claims

Petitioner’s motion for remand raises ten claims of guilt-
phase IAC: (1) failure to interview and call some witnesses;
(2) failure to investigate co-defendant Alan Charlton
adequately; (3) failure to interview Phillip Shell, to call him
to testify at trial, or to have his testimony from Petitioner’s
first trial read to the jury; (4) failure to participate actively in
voir dire; (5) failure to have the peremptory strike process
recorded; (6) failure to rehabilitate jurors regarding issues
about the death penalty; (7) failure to conduct independent
forensic testing or consult an independent pathologist; (8)
failure to present Petitioner’s misidentification defense
effectively; (9) failure to object to prosecutorial vouching;
and (10) cumulative error.5

5
The motion also states, in a footnote, that it “incorporates by reference”
all additional trial-counsel IAC claims that are contained in its amended
habeas petition and traverse before the district court. There are dozens of
such claims. This bare, passing reference is inadequate to bring an issue
properly before us. See United States v. Kama, 394 F.3d 1236, 1238 (9th
62 DETRICH V. RYAN

The majority remands the case with respect to all claims
that Petitioner has raised. It does so on account of four
claims that it views as potentially meritorious. There are
three errors in the majority’s approach. First, two of the
claims that it cites were not specifically raised in Petitioner’s
motion and are, therefore, not properly before us. Second,
one of those claims, as well as three other claims that the
majority does not discuss, were decided on the merits in state
court and therefore are not subject to the Martinez exception
to procedural default. Finally, even assuming that all the
claims that Petitioner raises could be considered under
Martinez, none of them is “substantial,” and a remand is
therefore a futile gesture. I will explain each of those
problems in more detail.

a. Some of Petitioner’s Claims Are Waived

Petitioner’s IAC claims arising from trial counsel’s
alleged failure to interview and call as witnesses Darci and
Donald Bell, and counsel’s alleged failure to interview and
cross-examine William Carbonell with a prior inconsistent
statement, were waived. Issues that are not “specifically and
distinctly” argued in an opening brief are waived. United
States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005). Neither
Carbonell nor the Bells are mentioned in Petitioner’s brief in
support of his motion.6 The majority emphasizes that

Cir. 2005) (“Generally, an issue is waived when the appellant does not
specifically and distinctly argue the issue in his or her opening brief.”).
6
The claim regarding the Bells does appear in Petitioner’s reply brief,
but issues raised for the first time in a reply brief are also waived. United
States v. Anekwu, 695 F.3d 967, 985 (9th Cir. 2012), cert. denied, 133 S.
Ct. 2379 (2013). The claim related to Carbonell appears nowhere in
 DETRICH V. RYAN 63

Petitioner has moved for us to remand his claims to the
district court, not to determine the substantiality of those
claims ourselves. But, with respect to his lawyer’s alleged
failure to investigate the Bells and to interview and to cross-
examine Carbonell, Petitioner has not properly asked even for
a remand.

I would not reach, even in part, issues that Petitioner
simply has not raised properly for our consideration. The
majority appears to view the Bell and Carbonell claims as
having been raised by Petitioner’s footnoted “incorporation
by reference” of filings in the district court. As I have
explained, that passing reference to 59 pages of argument
relating to a scattershot of dozens of claims is not a
“specific[] and distinct[]” argument in support of any specific
claim. Kama, 394 F.3d at 1238. The majority excuses
Petitioner’s waiver because it views the motion’s vague
“summary” of Petitioner’s claims as sufficient for these
purposes. I do not agree. The substantial delay and expense
of a new round of litigation on remand warrant a specific and
substantial showing that at least one Martinez claim requires
further fact-finding.

b. Some of Petitioner’s Claims Were Decided on
the Merits

Second, Petitioner seeks to revive claims that he raised in
his first petition for post-conviction relief (“PCR”) and that
the state courts decided on the merits. Of Petitioner’s
Martinez claims that are not waived, four appeared in his first
PCR petition. Those are counsel’s alleged failure to (1)

Petitioner’s briefs in support of the remand motion—it appears only in
Petitioner’s amended habeas petition.
64 DETRICH V. RYAN

obtain independent forensic testing or an independent
pathologist, (2) bring witness Shell to court to testify, (3)
rehabilitate jurors regarding death-penalty qualification, and
(4) object to alleged prosecutorial vouching. Those claims
were all rejected on the merits in the Pima County Superior
Court’s decision on the first PCR petition. The holding of
Martinez—that procedural default of a guilt-phase IAC claim
can be excused if it was due to PCR counsel’s
ineffectiveness—has no application when the claim was not
defaulted. Rather, claims that the state courts decided on the
merits must be analyzed under the deferential framework of
28 U.S.C. § 2254(d) and the evidentiary bar set forth in
Cullen v. Pinholster, 131 S. Ct. 1388, 1400 (2011).

c. None of Petitioner’s Claims Is Substantial

Even if those barriers to considering some claims are
ignored, none of Petitioner’s underlying guilt-phase IAC
claims is substantial, so Martinez cannot excuse their default.
Few, if any, of the alleged trial-counsel errors fell “below an
objective standard of reasonableness,” the standard for
deficient performance. Strickland. 466 U.S. at 687–88. And
none of them establishes prejudice, which requires that “[t]he
defendant . . . show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694; see also
Lopez v. Ryan, 678 F.3d 1131, 1139 (9th Cir.) (concluding
that a claim was not substantial under Martinez where the
petitioner could not show a reasonable probability of
prejudice under Strickland), cert. denied, 133 S. Ct. 55
(2012).

Before reviewing the substantiality of each individual
claim, I note that all of Petitioner’s claims must be viewed in
 DETRICH V. RYAN 65

light of three over-arching points. First, I have reviewed the
record and found no indication that Petitioner’s PCR counsel
was ineffective. Counsel conducted some independent
investigation (obtaining, for example, a detailed
psychological report that is central to the sentencing issue in
this appeal) and requested funds for further investigation.
The PCR petition raised many of the claims that Petitioner
continues to assert as meritorious today. Thus, I doubt that
Petitioner can satisfy the first prong of the Martinez analysis.

Next, with respect to the second prong, the record shows
that Petitioner’s trial counsel did a good job of trying this
case but that the evidence at trial prevented him from
obtaining a different result. For example, counsel developed
and presented to the jury a coherent and plausible theory of
defense, actively cross-examined the prosecution’s witnesses,
and gave a forceful opening statement and closing argument.
Indeed, Petitioner’s counsel effectively presented to the judge
and jury much of the evidence that the majority cites in
support of the view that Petitioner’s co-defendant may have
been the killer. The majority’s fresh assessment of that
evidence accordingly says little about whether Petitioner’s
trial counsel was deficient. Which brings me to my third
point.

The evidence of Petitioner’s guilt as the killer—detailed
above—was powerful. The jury’s verdict and the sentencing
court’s determinations appear to reflect their reasonable
assessments of the evidence at trial, not any ineffectiveness
on the part of counsel.7 Petitioner accordingly faces a

7
The majority asserts that the jury’s split verdict is strong evidence that
“only nine jurors were convinced that Detrich, rather than Charlton, was
the actual killer.” Maj. op. at 5. That assertion is speculative. The three
66 DETRICH V. RYAN

difficult task in showing that his underlying IAC claims have
merit under the prejudice prong of the Strickland analysis.

Claim 1: Failure to Investigate Witnesses Adequately

Petitioner first claims that his counsel’s preparation for
trial was inadequate because counsel “failed to locate or
interview critical eyewitnesses.” The remand motion
describes which witnesses Petitioner’s counsel should have
called as “eyewitnesses at the crime scene,” “witnesses who
knew the victim and had observed her the evening of the
crime,” and “the investigating police officers.”

With respect to the victim’s daughters (who were in the
victim’s home when Petitioner threatened and sexually
abused her), Winsett (who was also there), Carbonell (the
person who saw Petitioner covered in blood and to whom
Petitioner confessed), and three police detectives, little or no
prejudice resulted from counsel’s failure to interview them
because those witnesses testified at trial and were effectively
cross-examined by defense counsel.8 Petitioner fails to

jurors who voted for felony murder, rather than premeditated murder, did
not necessarily find that Charlton was the killer. Their votes could reflect
a conclusion that Petitioner killed the victim in the course of kidnapping
her, but that the prosecution failed to prove premeditation. The prosecutor
in fact told the jury, in closing, that it could convict Petitioner of felony
murder on this alternative theory. Thus, the three jurors’ votes are
ambiguous. In the face of this ambiguity, the split verdict is not evidence,
strong or otherwise, about which alternative persuaded the three jurors.
8
Moreover, under Arizona law, the children of a murder victim may
refuse to be interviewed or deposed by the defendant, Ariz. Const. art. II,
§ 2.1(A)(5); Ariz. Rev. Stat. § 13-4401(19), so counsel’s decision not to
interview the victim’s daughters is unsurprising and certainly not
deficient.
 DETRICH V. RYAN 67

explain how further investigation of those witnesses would
have improved his defense or to identify other specific
witnesses that counsel should have interviewed. Although
Petitioner’s amended habeas petition named 21 other
potential witnesses, any claim arising from those witnesses is,
as I have explained, waived.

Because the majority gives special consideration to two
of the waived claims, I will address why those claims, even
if they had been raised properly, would not warrant a remand
under Martinez. The first such claim is the alleged failure to
interview and call as witnesses Darci and Donald Bell. With
respect to those witnesses, Petitioner does not establish
prejudice. Darci Bell is Petitioner’s sister, so the jury would
have considered her (and her husband’s) testimony in light of
that obvious bias. And Petitioner has not demonstrated that
the Bells’ testimony, even if the jury credited it, would have
made the other trial witnesses’ accounts less probable. In a
declaration dated December 13, 2004, some 15 years after the
events in question, Darci stated that Charlton dropped
Petitioner off at her house on the morning after the crime and
that Petitioner’s bib overalls were not covered in blood that
morning. That account does not contradict Charlton’s and
Carbonell’s testimony that Petitioner was covered in blood at
an earlier time. Darci does not claim to have seen Petitioner
during the same time frame when the events to which
Charlton and Carbonell testified occurred, nor does she state
that Petitioner owned only a single pair of overalls.

The majority also focuses on another waived claim that
relates to counsel’s investigation of witnesses: the alleged
failure, during cross-examination, to probe two alleged
inconsistencies in Carbonell’s account of the crime. This
claim also lacks merit. The first alleged inconsistency is that
68 DETRICH V. RYAN

Carbonell initially testified that both Petitioner and Charlton
were “covered with blood” when they arrived at Carbonell’s
house but later testified that Petitioner had more blood on him
than Charlton did. Those statements are consistent and, in
any event, Petitioner’s counsel confronted Carbonell with the
prior statement at trial.

Second, Petitioner asserts that Carbonell testified that
Petitioner “told me he killed [the victim]” but that he had
earlier stated only that he had “surmised” that Petitioner
personally killed the victim from Petitioner’s statement that
Charlton was driving at the time. The majority emphasizes
that Carbonell inferred Petitioner’s conduct in part from what
Charlton said, but Carbonell also referred to Petitioner’s own
statements. Carbonell’s statement was, “[Detrich] didn’t say
that he killed the girl. But, he said [Charlton] was driving the
car. So, I . . . surmised that . . . he had been the one that cut
the girl. ‘Cause [Charlton] told me later on[] that he did cut
the girl up.” (Emphasis added.) Any inconsistency between
that statement and Carbonell’s testimony at trial is negligible
because the earlier statement clearly shows that Carbonell
inferred Petitioner’s conduct, at least in part, from what
Petitioner said. It was objectively reasonable for Petitioner’s
counsel to avoid further discussion of this apparent
confession during the cross-examination of Carbonell.

Claim 2: Failure to Investigate Charlton Adequately

Petitioner’s second claim is that his lawyer failed to
investigate co-defendant Charlton—specifically, to uncover
his racism. The majority views this claim as potentially
“substantial.”
 DETRICH V. RYAN 69

At trial, Petitioner’s counsel vigorously sought to
demonstrate that Charlton’s account of the murder was a lie.
To that end, the lawyer noted (among other factors)
Charlton’s motive to assist the government under his
favorable plea agreement, inconsistencies in his accounts of
the night of the crime, his decision to alter his personal
appearance after the incident, and his motives to kill the
victim himself. Those theoretical motives included
Charlton’s obsession with martial arts and violence and, as
relevant here, his racism; because the victim was black,
Charlton, as a racist white man, had a motive to kill her that
Petitioner did not necessarily have.9 Two witnesses—
Deborah Charlton (Charlton’s wife) and Phillip Shell
(Charlton’s cellmate in jail)—testified to Charlton’s racism.
Deborah Charlton testified that her husband “didn’t like
[black people] at all,” that “[h]e called them mud ducks,” that
“he made his opinion known real well,” and that he was
violent, obsessed with knives, and “partial to” martial arts.
Shell, whose testimony from Petitioner’s first trial was read
to the jury, testified that Charlton called Petitioner a “Nigger
lover,” referred to the victim as “‘[t]hat black bitch,’ things
like that,” and that he told Shell that he, not Petitioner, killed
the victim because he became angry when he saw Petitioner
kissing a black woman.

Given that counsel introduced ample evidence of
Charlton’s racism and that it was only one piece of a much

9
Interestingly, in the first PCR proceeding, Petitioner’s PCR counsel
acknowledged that trial counsel had pursued several avenues designed to
show that Charlton was lying, including evidence that Charlton and
Petitioner were together the entire evening of the murder, that the knife
Charlton identified as the murder weapon could not have killed the victim,
that Charlton had previously lived near the site where the victim’s body
was found, and that Charlton hated blacks, while Petitioner did not.
70 DETRICH V. RYAN

larger strategy to impeach Charlton’s testimony, neither
deficient performance nor prejudice can be attributed to
counsel’s failure to produce more such evidence.

Claim 3: Failure to Interview Shell

Petitioner’s next claim is that his lawyer was ineffective
for “fail[ing] to interview, call as a witness, or introduce the
prior testimony of Phillip Shell.”10 As I have explained, the
claim that counsel should have called Shell as a live witness
was explicitly considered on the merits by the state court after
Petitioner raised it during the initial-review collateral
proceeding. Martinez is therefore inapposite.11

Even if it were subject to Martinez, Petitioner’s claim that
counsel was ineffective in failing to call Shell as a live
witness is factually misleading and lacks merit. Shell was
detained as a material witness, and he testified in the first trial
in which Petitioner was convicted. The record shows that
defense counsel for Petitioner’s later trial (the allegedly
ineffective lawyer) hired an investigator to locate Shell, who
was out of state, spoke with him repeatedly, and attempted to
call him as a witness. When doing so proved impracticable,
defense counsel instead introduced Shell’s prior sworn

10
The allegation, as one part of this claim, that Petitioner’s trial counsel
failed to introduce Shell’s prior testimony at all is plainly contradicted by
the trial record: Shell’s prior testimony was read to the jury at trial.
11
Although the state court transcript referred to the witness as “William
Schell,” the record leaves no doubt that the ruling on the merits concerned
Phillip Shell and that this reference was just a mistake. The mistake may
have come about because a Mr. Williams read Shell’s testimony at the
final trial.
 DETRICH V. RYAN 71

testimony, which was read to the jury. That decision did not
constitute deficient performance.

Claims 4, 5, and 6: Alleged Errors During Voir Dire

Petitioner raises three claims related to his lawyer’s
performance during voir dire. He alleges that his lawyer was
ineffective for failing to “conduct adequate voir dire,”
“request recording of the peremptory strike process,” and
“rehabilitate jurors regarding issues about the death penalty.”

As I have explained, the state courts have decided
Petitioner’s “failure to rehabilitate” claim on the merits, and
it therefore is not subject to Martinez. The remaining two of
these claims are largely contradicted by the record. Defense
counsel participated actively in voir dire, particularly in
relation to jurors’ potential biases regarding the death
sentence. He submitted a jury questionnaire that included
questions on racial bias and jurors’ views on the death
penalty, objected to “death qualification” questions,
acknowledged the “rehabilitation” of a prospective juror,
raised questions for the court to ask particular jurors, and
moved to excuse several prospective jurors for cause.
Moreover, a record showing each lawyer’s use of peremptory
strikes was kept. Without any explanation as to how or why
trial counsel should have requested additional records,
Petitioner’s “recording” claim fails to show deficient
performance or prejudice.12

12
More generally, Petitioner alleges no substantive error during voir dire
or any jury bias that may have prejudiced his trial. For example, he does
not assert that a Batson challenge should have been raised, and the failure
to object during voir dire does not establish a Strickland claim without a
showing of prejudice. See Carrera v. Ayers, 699 F.3d 1104, 1107 (9th
72 DETRICH V. RYAN

Claim 7: Failure to Conduct Forensic Testing

Petitioner’s seventh claim is that his lawyer should have
conducted independent forensic testing on evidence collected
from the scenes of the crime (the victim’s home and
Charlton’s car).

The majority assumes that Petitioner’s claim here is
distinct from the forensic testing claim that, as noted above,
the state court decided on the merits. Here, Petitioner asserts
that his counsel was ineffective for failing to obtain
independent forensic testing of evidence that includes hairs,
a knife, and a needle. The district court treated that claim as
procedurally defaulted because it viewed Petitioner’s claim
before the state court as limited to forensic testing of blood
and blood pattern evidence. But, before the state court,
Petitioner argued that his counsel was deficient for failing to
“obtain all reports and review all physical evidence.”
(Emphases added.) He argued that available blood pattern
evidence contradicted Charlton’s testimony and that, for that
reason, counsel should have investigated “the physical
evidence” more. (Emphasis added.) He acknowledged that
he could not, at the PCR stage and without further funding,
identify specifically what other forensic evidence would have
benefitted his case, but his claim as to what counsel should

Cir. 2012) (en banc) (rejecting a claim of ineffective counsel arising from
a lawyer’s decision not to object during voir dire, where the petitioner
made no showing that the underlying Wheeler claim had some merit), cert.
denied, 133 S. Ct. 2039 (2013). At most, he merely alleges, implicitly,
that counsel should have worked harder and obtained a more sympathetic
jury. That is not a substantial Strickland claim. See Hovey v. Ayers,
458 F.3d 892, 910 (9th Cir. 2006) (rejecting claim of deficient
performance premised on counsel’s general failure to participate actively
in voir dire).
 DETRICH V. RYAN 73

have investigated extended to all forensic evidence. The state
court’s denial of Petitioner’s claim for failure to investigate
“the forensic evidence at trial” was not limited to one type of
evidence, and its ruling on the merits renders Martinez
inapplicable here.

Assuming, though, that Petitioner’s claims are “new” for
these purposes, they nevertheless lack merit because
Petitioner cannot show prejudice. The state did conduct
forensic tests of hairs and fingernails (as well as examinations
for fingerprints, blood, and semen in the car). To the extent
that those tests reached conclusive results, they provided
evidence that corroborated the percipient witnesses’
testimony against Petitioner.13 Billing records show that
Petitioner’s counsel interviewed the state’s forensic
pathologist, Dr. Thomas Henry, and forensic examiner, Dr.
Deborah Friedman; the decision not to hire an independent
investigator resulted neither from ignorance nor from a
failure to inquire into its necessity. Petitioner’s counsel
effectively cross-examined Dr. Henry at trial. Furthermore,
the state’s forensic evidence did not stand alone. It
complemented extensive testimonial evidence: that Petitioner
entered the car on the passenger side while Charlton drove,
that he killed the victim himself, that he was covered in blood
after the crime, and that he confessed to the murder shortly
afterward. Petitioner therefore cannot make a substantial

13
The majority makes the far-fetched assertion that the absence of
semen in the car “reinforces” Shell’s testimony that Petitioner kissed the
victim and that Charlton killed her. That is not a logical inference.
Evidence of semen was in no way necessary to the prosecution’s theory
of the case. Nor is the absence of semen affirmative evidence of kissing
or of any other relevant fact. This category of forensic evidence is
therefore equally consistent with both accounts of the crime.
74 DETRICH V. RYAN

showing of either deficient performance or prejudice with
respect to that forensic evidence.

Neither does Petitioner show deficiency or prejudice with
respect to the alleged murder weapon and the needle found at
the victim’s home. At trial, Petitioner’s counsel developed a
theory that the evidence could not prove that a particular
knife (there were several available to Petitioner) was the
murder weapon. Again, the lawyer made a reasonable
judgment that the opinion of the state’s pathologist was
sufficient to support that theory. The jury either found that it
could identify the knife or concluded that identifying which
of the available knives Petitioner actually used was not
important. As to the needle, Petitioner argued before the state
courts that forensic analysis of the needle used for shooting
cocaine “would have revealed inconsistencies in the
testimonies.” But he does not explain what those
inconsistences would have been or how counsel’s failure to
reveal them caused prejudice to Petitioner.

Claim 8: Error Relating to Misidentification Defense

Petitioner’s eighth claim is that his trial lawyer
undermined his own misidentification defense by introducing
contrary evidence. This allegation is so vague—Petitioner
does not specify what evidence was allegedly introduced in
error—that it cannot present a substantial Strickland claim.

Claim 9: Failure to Object to Prosecutorial Vouching

Petitioner’s ninth claim is that his lawyer failed to object
to prosecutorial vouching in support of Charlton’s testimony.
In his second petition for post-conviction review, Petitioner
asserted that the state vouched for Charlton by reviewing his
 DETRICH V. RYAN 75

testimony during closing argument. That type of reference
during argument is not vouching. See United States v.
Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993) (holding that
vouching consists of “assurances of the witness’s veracity, or
suggesting that information not presented to the jury supports
the witness’s testimony”). The decision of Petitioner’s
counsel not to challenge the statements at issue therefore was
not objectively unreasonable.

Claim 10: Cumulative Error

Petitioner’s final claim is that the foregoing errors,
cumulatively, amounted to ineffectiveness. Most of
Petitioner’s claims rely on misleading characterizations of the
factual record that, even if true, would not establish
significant prejudice. Taken cumulatively, they still are not
substantial.

4. Conclusion

In conclusion, some of Petitioner’s Martinez claims are
not properly before us because Petitioner did not separately
identify them in his motion, and some are not properly
Martinez claims because they were not procedurally
defaulted. None of the claims at issue presents a potentially
successful Strickland claim. For that reason, the claims are
not “substantial,” and Martinez does not excuse their default.
In Martinez, the Supreme Court described its new rule as a
“narrow exception” to the principle, set forth in Coleman v.
Thompson, 501 U.S. 722 (1991), that a lawyer’s ignorance or
inadvertence in a post-conviction proceeding does not qualify
as “cause” to excuse a procedural default. Martinez, 132 S.
Ct. at 1315. That narrow exception is not intended to permit
relitigation of guilt-phase proceedings on unsupported or
76 DETRICH V. RYAN

legally frivolous grounds. Because Petitioner’s newly raised
claims either are not properly raised or lack merit, or both, I
would deny the remand motion.

B. Claim of Ineffective Assistance of Counsel at
Sentencing

I also disagree with the majority’s decision not to decide
the sentencing issue now. That issue was decided below and
has been briefed and argued on appeal, twice—once to the
three-judge panel and next to the en banc court. Nothing
remains for us to do but decide it. To be sure,
notwithstanding my view of their lack of merit, the district
court could in theory grant relief on Petitioner’s guilt-phase
IAC claims on remand. But if it does not, Petitioner’s appeal
on the sentencing issue will return to us and require a
decision. It will be the same issue, with the same relevant
facts, when it returns, so we should decide it while we are
familiar with it and avoid the redundant proceedings that will
likely be required later. Even if the district court were to
grant relief on Petitioner’s guilt-phase claims, we will have
lost nothing but a few pages of text in making a decision. For
the following reasons, I would affirm the district court’s
denial of habeas relief on this claim.

1. Facts Relevant to Sentencing Claim

At sentencing, the prosecution sought the death penalty.
It argued that the evidence produced at trial showed that the
crime was “especially cruel, heinous, or depraved,” an
aggravating circumstance under then section 13-703(F)(6) of
the Arizona Revised Statutes. Petitioner submitted a
sentencing memorandum proposing five mitigating
circumstances relating to Petitioner’s personal background,
 DETRICH V. RYAN 77

his criminal history, his remorse, his capacity to appreciate
the wrongfulness of his conduct at the time of the crime, and
the relative sentence received by Charlton. He also submitted
a letter from his sister that described his background of
childhood abuse and problems with drugs and alcohol.

The trial court held a two-day aggravation/mitigation
hearing. Petitioner’s lawyer argued (1) that Petitioner was
not death-eligible under Tison v. Arizona, 481 U.S. 137
(1987), because he did not personally commit the murder; (2)
that the crime was not especially cruel, heinous, or depraved;
and (3) that the mitigating circumstances warranted leniency.

The evidence before the court at the hearing included a
1985 report by psychologist Dr. Larry Zimmerman, a 1985
clinical evaluation approved by psychiatrist Dr. George Penn,
and a 1991 report by psychologist Dr. Catherine Boyer.
Together, these studies revealed a long history of childhood
abuse, alcoholism, and physical and emotional trauma. They
noted that Petitioner suffered from emotional problems
related to abuse at the hands of his stepmother and discussed
his anger toward parental figures. The 1985 reports noted
that Petitioner engaged in “severe” drug and alcohol abuse in
his past, and the 1991 report explained its effect on his
behavior, observing that “if [Petitioner] is drinking and
someone makes him angry, he begins to escalate in his anger
[and he] feels that he has approached a trigger point.” The
later report recognized a connection between Petitioner’s
alcoholism and his potential for violence, citing an incident
in which Petitioner, while drunk, threatened to kill his wife.

The sentencing court also reviewed several letters from
Petitioner’s sister, in which she described Petitioner’s
childhood and lifelong alcohol abuse. The letters explained
78 DETRICH V. RYAN

that Petitioner’s stepmother abused him physically and
verbally, that his stepfather encouraged Petitioner to engage
in bouts of heavy drinking beginning by age thirteen or
younger, and that Petitioner struggled with alcoholism
throughout his life.

After reviewing those documents, and relying on the
evidence and testimony at trial, the sentencing court found
that Petitioner personally committed the murder. As
aggravating factors, the court found that the murder was
especially cruel because the victim was conscious throughout
much of the crime, endured extreme physical pain, and
suffered extreme mental distress. The court ruled that the
murder was heinous and depraved because Petitioner relished
the murder and inflicted gratuitous violence well beyond that
needed to cause death and because the victim was helpless,
and the crime was senseless. The court found that there were
five mitigating circumstances: Petitioner’s capacity to
appreciate the wrongfulness of his conduct or to conform his
conduct to the requirements of law was significantly impaired
by alcohol and drugs at the time of the crime; Petitioner
comes from a background of physical and mental abuse;
Petitioner felt some remorse for the murder; Petitioner did not
have prior convictions for crimes of violence; and Petitioner
had a longstanding history of alcohol and drug abuse. After
weighing these mitigating factors against the aggravating
circumstance, the court imposed a sentence of death for the
murder and twenty-one years in prison for the kidnapping.

Petitioner sought post-conviction relief in state court,
alleging (as relevant here) ineffective assistance of counsel at
sentencing. Petitioner’s claims of ineffectiveness at
sentencing included an allegation that his lawyer did not
adequately investigate and present mitigation evidence.
 DETRICH V. RYAN 79

Petitioner hired a neuropsychological expert, Dr. Robert
Briggs, who produced a report on Petitioner’s background
and mental health. Petitioner’s family members supplied
statements concerning details of Petitioner’s background,
which included severe childhood abuse (being chained up,
pushed down stairs, held under water in the bathtub, and
encouraged to drink alcohol and use drugs as a pre-teen) and
life-long problems with alcohol and drugs. The state post-
conviction court held that Petitioner failed to establish
ineffective assistance under Strickland v. Washington,
466 U.S. 668, 687 (1984), because he showed neither
deficient performance nor prejudice. The court reasoned that
“Dr. Briggs’ report was not significantly different from the
[1991] report considered” at the sentencing hearing and that
“additional evidence of Petitioner’s dysfunctional childhood
would have been merely cumulative and was not ‘newly
discovered.’” For that reason, the court concluded that there
was no “reasonable probability” that, had Petitioner’s counsel
uncovered and presented additional evidence regarding
Petitioner’s background, doing so would have resulted in a
different sentence. The Arizona Supreme Court denied
review.

2. Standard of Review

We review de novo a district court’s denial of habeas
corpus relief. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th
Cir. 2004). We review a district court’s factual findings for
clear error. Brown v. Ornoski, 503 F.3d 1006, 1010 (9th Cir.
2007).

Our review of the underlying state court decisions is
governed by AEDPA. Brown, 503 F.3d at 1010. Under
AEDPA, we must defer to a state court’s decision with
80 DETRICH V. RYAN

respect to any claim that was adjudicated on the merits unless
the adjudication of the claim:

(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). Our review “is limited to the record that
was before the state court that adjudicated the claim on the
merits.” Pinholster, 131 S. Ct. at 1398, 1400 n.7.

Where, as here, the factual determinations of the state
court are not in dispute, the state court’s decisions as to
whether those facts amount to deficient performance or
prejudice under the Strickland standard are applications of
federal law that we review under § 2254(d)(1). See
Pinholster, 131 S. Ct. at 1411 (applying § 2254(d)(1)’s
“unreasonable application of [Supreme Court] precedent”
standard to a state court’s determinations on both deficiency
and prejudice). Under § 2254(d)(1), a state court’s decision
involves an “unreasonable application”of clearly established
federal law if it “identifies the correct governing legal
principle from [the Supreme Court’s] decisions but
unreasonably applies that principle to the facts of the
prisoner’s case.” Holland v. Jackson, 542 U.S. 649, 652
(2004) (per curiam) (internal quotation marks omitted).
 DETRICH V. RYAN 81

Our review of a state court’s denial of a claim of
ineffective assistance of counsel is “doubly deferential,” in
that the petitioner must show that it was unreasonable for the
state court to conclude both that he had not overcome the
strong presumption of competence and that he had failed to
undermine confidence in the outcome of the state court
proceeding. Pinholster, 131 S. Ct. at 1403 (internal quotation
marks omitted). We apply this deferential standard to review
the state court’s last reasoned decision. Ylst v. Nunnemaker,
501 U.S. 797, 803–04 (1991).

3. Discussion

I would not reach the deficient-performance prong of the
Strickland analysis because Petitioner cannot establish that
his sentencing counsel’s alleged error resulted in prejudice.
In assessing prejudice with respect to a capital sentence, our
inquiry is “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.” Strickland, 466 U.S. at 695. We
“reweigh the evidence in aggravation against the totality of
available mitigating evidence.” Wiggins v. Smith, 539 U.S.
510, 534 (2003).

The Arizona Supreme Court found one aggravating
circumstance: that the crime was “especially heinous, cruel,
or depraved” within the meaning of section 13-703(F)(6) of
the Arizona Revised Statutes.14 Detrich II, 932 P.2d at

14
Under applicable Arizona case law, the (F)(6) statutory factor is
assessed by examining “the entire murder transaction and not simply the
final act that killed the victim.” State v. Lavers, 814 P.2d 333, 350 (Ariz.
1991). A murder is “cruel” for these purposes if the victim consciously
82 DETRICH V. RYAN

1338–39. The court concluded that the murder was especially
“cruel” because the victim consciously suffered both mentally
and physically before she was killed. It found that she
suffered mentally when Petitioner held a knife to her neck,
threatened to kill her, and dragged her to Charlton’s car. Id.
at 1339. It noted that, physically, the victim suffered a slit
throat and forty knife injuries to her face, hands, chest, neck,
abdomen, and thigh. Id. at 1338–39. She also suffered blunt
force trauma injuries, including bruises on her nose, jaw, and
scalp, and scraping and tearing of the lining of her mouth. Id.
Evidence suggesting that she was conscious during some of
the attack included testimony that she “looked terrified” as
Petitioner forced her into the car, that the wounds on her
hands were consistent with “defensive-type injuries one
would sustain while trying to fend off an attacker,” and that
she responded to questions with a gurgling noise after her
throat was slit. Id. at 1338–39. The state court further found
that the crime was especially “heinous” and “depraved”
because of the gratuitous violence beyond that necessary to
cause death; because Petitioner relished in the murder, asking
Charlton if he “want[ed] a shot” at the dead body; because the
killing was senseless; and because the victim was helpless.
Id. at 1339.

suffered physical pain or mental distress. State v. Jimenez, 799 P.2d 785,
795 (Ariz. 1990). It is “heinous” or “depraved” if the defendant’s words
and acts show a state of mind that was “hatefully or shockingly evil” or
“marked by debasement, corruption, perversion or deterioration,”
respectively. State v. Fulminante, 778 P.2d 602, 621 (Ariz 1989) (internal
quotation marks omitted). Factors relevant to the latter inquiry include
“(1) whether defendant relished the murder; (2) whether defendant
inflicted gratuitous violence beyond that necessary to kill; (3) whether the
defendant mutilated the victim’s body; (4) whether the crime was
senseless; and (5) whether the victim was helpless.” State v. Lopez,
857 P.2d 1261, 1266 (Ariz. 1993).
 DETRICH V. RYAN 83

The state court’s conclusion, from that evidence, that the
crime was especially cruel, heinous, and depraved, id. at
1339, is entitled to significant weight. Nothing before the
state post-conviction court alters the significance of these
facts or the state court’s conclusion that they constituted an
aggravating circumstance under section 13-703(F)(6).

As for mitigation, the sentencing court found that most of
the mitigating circumstances that Petitioner asserted were
present.15 As a statutory mitigating factor, the court found
that Petitioner’s intoxication at the time of the crime impaired
his capacity to appreciate the wrongfulness of his conduct or
conform it to the law. As non-statutory mitigating factors,
the sentencing court found that Petitioner felt some remorse
for the murder, lacked a history of violent crime, and came
from a background of mental and physical abuse. The
Arizona Supreme Court gave full consideration to these
mitigating factors and concluded that, “when balanced against
the circumstances constituting the sole aggravating factor, the
mitigating evidence is insufficient to warrant leniency.”
Detrich II, 932 P.2d at 1340.

The mitigation evidence on which the state court rested
that conclusion included substantial evidence of Petitioner’s
problems with drugs and alcohol and his background of
mental and physical abuse. Specifically, Petitioner’s sister
had submitted several letters in which she described the
physical and mental abuse that Petitioner experienced at the

15
Although the court did not consider Petitioner’s co-defendant’s
sentence of ten years, the disparity of sentences could not be a mitigating
factor under Arizona law because the co-defendant’s sentence resulted
from a plea agreement. Detrich II, 932 P.2d at 1339–40 (citing State v.
Stokley, 898 P.2d 454, 472 (Ariz. 1995)).
84 DETRICH V. RYAN

hands of his stepmother, as well as his history of heavy
drinking beginning by age thirteen or younger. The
sentencing court also considered three expert reports that
discussed the foregoing background and Petitioner’s
psychological state as an adult. Although both of the 1985
reports note that Petitioner suffered from certain emotional
characteristics—such as impulsivity, immaturity, poor
judgment, and low tolerance for frustration—both reports
stated that Petitioner did not suffer from a thought disorder or
from delusional thinking. The 1991 report confirms these
conclusions, noting that Petitioner did not exhibit any
symptoms of a major mental disorder or any other significant
psychiatric disturbance and that his thought processes were
logical and coherent.

In post-conviction review, Petitioner argued that
additional mitigation evidence regarding his traumatic
childhood and its effects on his mental health might have
resulted in a different sentence. But the additional evidence
regarding Petitioner’s mental health that he offered during
post-conviction review—the Briggs report—is not
significantly different from the reports that were already
before the sentencing court. Like the other examiners, Dr.
Briggs reviewed Petitioner’s history of childhood abuse and
dependence on alcohol and drugs and noted that Petitioner
experienced impulsivity and other emotional problems. Also
like the previous evaluators, Dr. Briggs uncovered no pattern
of cognitive dysfunction and determined that Petitioner’s
neurological functioning was within the normal range. Dr.
Briggs acknowledged that Petitioner appeared to suffer some
overall impairment of function, likely due to “an interaction
between his emotional state and his mild neuropsychological
deficits.” In the end, though, the Briggs report’s
characterization of Petitioner’s childhood, substance abuse
 DETRICH V. RYAN 85

problems, and mental state is similar to the psychological and
psychiatric reports that the sentencing court considered.

Petitioner also presented additional letters from his family
detailing his abusive childhood and history of substance
abuse but, like the Briggs report, the letters essentially
duplicate material that the sentencing court had. Both the
letters from Petitioner’s family and the mental health
evaluations that were available to the sentencing court
detailed the same types of abuse and neglect that appear in
the new letters. Because that evidence is cumulative with
what the sentencing court considered, it does not establish a
reasonable probability that a better investigation and
presentation of Petitioner’s background would have resulted
in a different sentence. See Miles, 713 F.3d at 494–95
(finding that the addition, during post-conviction proceedings,
of cumulative mitigating evidence relating to social history
was insufficient to demonstrate ineffectiveness).

4. Conclusion

In sum, the state post-conviction court reasonably held
that there was no reasonable probability that, even if
Petitioner’s counsel had more fully investigated and
presented the available mitigation evidence, Petitioner would
have received a different sentence. Because the Arizona
Supreme Court reasonably held that Petitioner suffered no
prejudice within the meaning of Strickland, Petitioner’s claim
for habeas relief should be denied.