Williams v. Ryan

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ARYON WILLIAMS,  No. 07-99013
Petitioner-Appellant,
v.  D.C. No.
CV-97-01239-PGR
CHARLES L. RYAN,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the District of Arizona
Paul G. Rosenblatt, District Judge, Presiding

Argued and Submitted
November 5, 2009—Pasadena, California

Filed October 26, 2010

Before: Mary M. Schroeder, Marsha S. Berzon and
Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Schroeder;
Partial Concurrence and Partial Dissent by Judge Ikuta

17725
17730 WILLIAMS v. RYAN
COUNSEL

Julie Hall, Oracle, Arizona, for petitioner-appellant Aryon
Williams.

Jeffrey A. Zick, Phoenix, Arizona, for respondent-appellee
Charles L. Ryan.

OPINION

SCHROEDER, Circuit Judge:

Aryon Williams was convicted in Arizona state court in
1992 and sentenced to death for the first degree murder of his
former girlfriend Rita DeLao, and for the later robbery and
attempted murder of Norma Soto. The Arizona appellate
courts upheld his convictions and sentence. See State v. Wil-
liams, 904 P.2d 437 (Ariz. 1995). In this habeas proceeding,
the most significant issues concern a claim of concealment of
partially exculpatory evidence in violation of Brady v. Mary-
land, 373 U.S. 83 (1963), and the failure of the state court to
consider mitigating evidence at sentencing in violation of
Lockett v. Ohio, 438 U.S. 586 (1978) and Eddings v. Okla-
homa, 455 U.S. 104 (1982).

The evidence at trial included the testimony of Michelle
Deloney, Williams’ then girlfriend, that Williams had con-
fessed to her he murdered DeLao. The murder occurred in a
relatively remote area of Pinal County, Arizona and there
were no eyewitnesses and little physical evidence. On the rob-
bery/attempted murder charge, the victim, Norma Soto, testi-
fied at trial and identified Williams as her attacker.

Two years after the convictions were affirmed on appeal,
an Assistant Attorney General for Arizona turned over to Wil-
liams’ attorney a packet of jailhouse letters written before trial
 WILLIAMS v. RYAN 17731
that suggested that Williams was not the actual murderer.
These letters suggested that Williams had paid another man,
Patrick Fields, to do the job. The jailhouse letters led Wil-
liams to two witnesses who said they had seen Fields dispos-
ing bloody clothing in a park a morning around the time of the
murder. Fields turned out to have a history of assaulting
women.

By the time Williams became aware of this evidence, these
federal habeas proceedings had been instituted. The district
court stayed the proceedings so that Williams could, in state
court, exhaust a Brady claim arising from the jailhouse letters.
The state court, however, refused to grant a request for a first
extension of time to prepare a postconviction petition. Wil-
liams was, therefore, unable to exhaust state remedies. When
he returned to federal court, the district court rejected the
State’s position that the Brady claim was procedurally barred,
but denied the claim on the merits. Like the district court we
consider this claim without regard to the deferential strictures
of the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). We agree with the district court that it is not
appropriate to view the claim as procedurally barred because
Williams did not have an opportunity to raise it in state court.
The district court granted a certificate of appealability
(“COA”) and we have determined that this claim warrants an
evidentiary hearing.

The district court also granted a COA for the claim that the
trial court violated Williams’ due process rights by failing to
provide funds for a mental health expert at sentencing to
establish drug dependence as a mitigating factor. Like the dis-
trict court, we agree that the state court’s rejection of this
claim was not contrary to or an unreasonable application of
Supreme Court precedent.

Of the numerous claims that had not been certified, but that
have been briefed pursuant to our rules, we find one to be
meritorious. Williams offered his addiction to crack cocaine
17732 WILLIAMS v. RYAN
as a mitigating factor at sentencing. The Arizona Supreme
Court refused to consider this as a mitigating factor under
applicable Arizona law because Williams did not show he
was under the influence of drugs at the time of the murder.
Because Williams’ challenge to this determination raises a
substantial constitutional issue, 28 U.S.C. § 2253(c)(2), we
certify the issue and decide it. As we have done in other cases
emanating from Arizona courts in the same period, we find
that the state court erred by its refusal to consider all mitigat-
ing evidence. See Eddings, 455 U.S. at 114-15; Lockett, 438
U.S. at 604-05; Lambright v. Schriro, 490 F.3d 1103, 1114-15
(9th Cir. 2007).

FACTUAL AND PROCEDURAL BACKGROUND

The underlying facts of this case are set out in detail in the
Arizona Supreme Court’s opinion on direct appeal. State v.
Williams, 904 P.2d 437 (Ariz. 1995). We summarize them
here.

On Saturday, January 27, 1990, Williams and DeLao made
plans to spend the night together at Williams’ apartment in
Casa Grande. When DeLao called, though, Williams told her
not to come over since his girlfriend Deloney was still at his
apartment. DeLao came over nonetheless and had an argu-
ment with Williams outside the building. DeLao pulled a gun
on Williams, but Williams was able to disarm her. Williams
briefly returned to his apartment, then left it, and did not
return until the following morning.

On Sunday morning, a hunter discovered DeLao’s body on
a dirt road about twenty minutes from Williams’ apartment.
DeLao had been shot three times and her body had suffered
a number of gruesome injuries. She had been beaten, and tire
tracks across her stomach indicated that she had been run over
by an automobile. Bullets recovered at the scene were consis-
tent with the gun Williams had taken from DeLao shortly
before her death.
 WILLIAMS v. RYAN 17733
Deloney testified that Williams confessed to her on Mon-
day that he was with several friends who killed DeLao.
According to Deloney, Williams said he had only kicked
DeLao, and that his friends had killed her. Williams denied
ever confessing involvement in DeLao’s death. Also on Mon-
day, Williams drove Deloney to the place where DeLao’s car
had been abandoned, less than a mile from his apartment in
Casa Grande. As Williams approached the car, a police offi-
cer processing the car stopped them, and Williams told the
officer he thought it was DeLao’s car.

Deloney testified that, two weeks after the murder, Wil-
liams told her that he had killed DeLao, admitting that he shot
her, hit her with an iron, and ran over her repeatedly with his
car. Williams told Deloney that if she ever told anyone, he
would kill her.

Five weeks after the murder, Norma Soto, a Circle-K con-
venience store clerk, was shot several times during a robbery
of the store. Soto survived and identified Williams as her
attacker, testifying that he shot her after telling her to stop
spreading the story that he had killed DeLao. Police soon
arrested Williams for both the murder of DeLao and the rob-
bery/attempted murder of Soto.

An Arizona jury, in a consolidated trial, convicted Williams
in 1992 of the murder of DeLao, armed robbery, and the
attempted murder of Soto. At trial, Deloney was the State’s
principal witness on the murder charge. She testified about
Williams’ confessions. The State also presented evidence that,
prior to the murder, Williams had burned DeLao’s car, shot
at her apartment, and slashed her tires. Soto testified and iden-
tified Williams as the man who robbed the store and shot her.
Williams testified in his own defense and denied any involve-
ment in either criminal episode. Williams did not have a crim-
inal record, although the State introduced evidence that he had
abused crack cocaine and become physically abusive to
17734 WILLIAMS v. RYAN
Deloney. On the stand, Williams denied using drugs on the
day of the murder.

At sentencing, Williams sought to have the state provide a
mental health expert to explore whether his drug usage had
affected his mental state when he killed DeLao. The trial
court denied this motion, and the Arizona Supreme Court
upheld the decision without discussion. See 904 P.2d at 450
(“Defendant also asserts . . . that the trial court’s denial of
funds for an expert violated his right to due process and equal
protection under the law. Under the facts of this case, we
reject these claims as well.”).

Williams also offered his addiction to crack as a mitigating
circumstance at sentencing. The trial court refused to consider
Williams’ drug use in mitigation. The Arizona Supreme Court
agreed, holding that “[w]ithout a showing of some impair-
ment at the time of the offense, drug use cannot be a mitigat-
ing circumstance of any kind.” Id. at 453.

After filing two unsuccessful state postconviction petitions
in which he raised the sentencing claims of erroneous denial
of a mental health expert and the refusal to consider his addic-
tion as a mitigating factor, Williams instituted federal habeas
proceedings. In 1997, while his federal petition was pending,
an Assistant Attorney General for Arizona turned over to
defense counsel a series of letters, and stated they were dis-
covered “by a secretary during an annual house cleaning at
the [Pinal] County Attorney’s Office.” The State said the let-
ters had “no evidentiary value.”

The letters purported to have been written from jail in
1991, prior to Williams’ trial, by a woman named Beverly
Sweat, to Detective Tom Solis, the lead investigator in the
DeLao murder. In the letters, Sweat expressed the desire to
provide information she had about a murder, in return for an
early release from jail. Solis has denied ever having seen
 WILLIAMS v. RYAN 17735
these letters, but has not testified or given a statement under
oath to this effect.

The letters contained information Sweat allegedly obtained
from a fellow inmate, Yolanda McKaney, that Williams had
paid Patrick Fields to kill Rita DeLao and that McKaney had
seen a bloodied Fields on one morning around the time of the
murder. One letter stated that Sweat was going to have
Yolanda McKaney “tell [her] the story about Rita and Patrick
Fields.” The letter also noted that “Aaron” (apparently a refer-
ence to petitioner Aryon Williams) was “going to get” two
people: Fields and Milton Barnett. According to this letter,
McKaney told Sweat that the day of the DeLao murder, in
Casa Grande, she saw Fields who was “all bloody” and who
stated that “Aaron” had paid him a thousand dollars to kill
DeLao. According to Sweat, Fields told McKaney that he had
cut DeLao’s eyes out and run over her with a moped. Sweat
also stated that she knew “Aaron is guilty of some part of it,”
and in the subsequent letters, promised that she could obtain
additional information, if she obtained an early release.

Counsel for Williams conducted an investigation on the
basis of the Sweat letters and in 1999 obtained declarations
from three people mentioned in the letters: McKaney, Barnett,
and Fields. McKaney’s declaration stated that around the time
of the DeLao murder, she saw Fields in a park in the small
town of Casa Grande, Arizona, less than a mile from where
police discovered DeLao’s abandoned car the morning after
the murder. She saw a bloodied Fields throw a bloody shirt
into a dumpster and burn it. Barnett stated that about this
same time, and a few blocks from where McKaney saw
Fields, he saw a shirtless Fields throw something into a dump-
ster. Barnett said that, while sharing a cigarette with Fields,
he noticed blood on Fields’ clothing. Barnett asked Fields
about this blood, and Fields fled. Barnett said he learned of
DeLao’s murder the next day. Fields’ declaration stated he
was in county jail at the time of the DeLao murder, but the
State later conceded that Fields was not in custody at that
17736 WILLIAMS v. RYAN
time. In the district court Williams produced evidence that
Fields had a history of sexual assaults against women. Wil-
liams has admitted that he knows Sweat, McKaney, Barnett,
and Fields.

In 2002, the district court placed the federal proceedings in
abeyance to allow Williams to exhaust a Brady claim based
upon the Sweat letters and the subsequent investigation. The
Arizona courts never considered the merits of this claim, how-
ever, because the Superior Court denied Williams an exten-
sion of time to file his state petition, finding that Williams had
failed to show good cause under Arizona Rule of Criminal
Procedure 32.4(c). The Arizona Supreme Court then summa-
rily denied review.

Back in federal court, Williams moved for “Discovery,
Expansion of the Record and [an] Evidentiary Hearing” on
the Brady claim. The State opposed on the ground that this
claim was procedurally barred.

The district court refused to treat the Brady claim as proce-
durally barred, holding in effect that the state courts had pre-
vented exhaustion without following any well established rule
that would have rendered the petition untimely. The district
court noted that the State had failed to cite any case denying
a first request for an extension of time in a capital case. To
the contrary, Williams cited a number of examples where the
state courts had granted such requests. Thus, the district court
found that Rule 32.4(c) was not “firmly established and regu-
larly followed.” See Ford v. Georgia, 498 U.S. 411, 423-24
(1991).

The district court also granted Williams additional discov-
ery related to the investigation of the Sweat letters. The court
declined to order an in-court hearing, finding it appropriate to
consider documentation and review written evidence, rather
than hear witnesses. The court said that it did so because of
 WILLIAMS v. RYAN 17737
what it determined to be the “narrow focus” of the Brady
claim.

After completion of discovery and briefing, the district
court denied the Brady claim on the merits, holding that Wil-
liams was not prejudiced because the letters did not contain
any material information. The court noted that none of Wil-
liams’ new information directly impeached or undercut the
evidence presented at trial—evidence the jury found sufficient
to convict. Rather, the district court found the letters provided
further evidence that Williams was culpable by suggesting he
had paid Fields to kill DeLao. The court also pointed to incon-
sistencies in the various declarations, noting that the fact the
information originated in a jailhouse undermined its credibil-
ity.

The district court issued a COA on the Brady claim and the
claim that Williams was entitled to a mental health expert at
sentencing. We additionally certify the claim that addiction
should have been considered a mitigating factor at sentencing.

ANALYSIS

I. The Brady Claim

[1] First, we address as a threshold matter the State’s
renewed contention that Williams’ Brady claim is procedur-
ally barred, even though Williams was prevented from raising
it because the state trial court denied him a first extension of
time. In this court, as in the district court, the State has not
cited to a single other instance of an Arizona court denying
a first extension of time to file a habeas petition in a capital
case. The State, therefore, has not shown the denial was pur-
suant to a well established rule against first extensions in capi-
tal cases. Procedural default must be based on the application
of a well established rule. See Ford, 498 U.S. at 423-24.

[2] Because this claim was denied in state court on an
inadequate procedural ground, there was thus no failure on the
17738 WILLIAMS v. RYAN
part of Williams. We agree with the district court that Rule
32.4(c) was arbitrarily applied in this case. As the district
court concluded “every first request for an extension of time
in a capital case” had been granted previously in Arizona
courts.

[3] As a result of the state court’s arbitrary application of
its rules, there is no state court decision to which this court
can defer. The deference AEDPA requires for state court
determinations, therefore, does not apply and our review of
this claim is de novo. See Pirtle v. Morgan, 313 F.3d 1160,
1167 (9th Cir. 2002).

[4] A state commits a Brady violation where 1) the evi-
dence in question is favorable to the accused, 2) the state
“wilfully or inadvertently” suppressed the information, and 3)
the suppression prejudiced the defendant. See Strickler v.
Greene, 527 U.S. 263, 281-82 (1999). Prejudice exists where
the state suppresses “material” information; evidence is mate-
rial if had it been disclosed “there is a reasonable probability
. . . the result of the proceeding would have been different.”
Kyles v. Whitley, 514 U.S. 419, 433 (1995) (citation omitted).

The Brady materials here consist of the packet of Sweat let-
ters that turned up in the District Attorney’s office years after
trial, and led counsel to obtain the declarations of McKaney,
Barnett, and Fields. See Paradis v. Arave, 240 F.3d 1169,
1178-79 (9th Cir. 2001) (noting that Brady material consists
of admissible evidence or inadmissible evidence that could
have been used to impeach a government witness). The Sweat
letters thus suggested there were witnesses who, around the
time of DeLao’s murder, saw a bloodied Patrick Fields dis-
posing of bloody clothing into dumpsters about a half a mile
from where police found DeLao’s abandoned car. When
defense counsel followed up on these leads after the letters
were disclosed, she obtained declarations from the witnesses
identified in the letters substantially reiterating this informa-
tion. The Sweat letters further suggested that there might be
 WILLIAMS v. RYAN 17739
a witness who could testify that Williams did not commit the
murder himself, but paid Fields to do it.

Williams contends that this information is sufficient to jus-
tify habeas relief. The State contends, however, with some
validity, that the new evidence does not undermine Deloney’s
testimony that Williams confessed his involvement in the
murder to her. Nor does it, according to the State, have any
impact on the evidence that Williams was the last known per-
son to be with DeLao, and that they had an argument when
DeLao threatened Williams with the firearm that was used in
her murder. The Sweat letters are also consistent with Wil-
liams’ first confession to Deloney that he had only kicked
DeLao, and that someone else killed her. See 904 P.2d at 441.
The State also points out that prior to the murder, Williams
had burned DeLao’s car and shot at her house; the Sweat let-
ters do not conflict with that evidence either.

Insofar as the letters suggest Williams was involved in the
murder in a different capacity than as the actual killer, the
State contends the letters suggest only an alternate theory of
equal culpability, and we have held such evidence undermines
a Brady claim where the new evidence fails to show the
defendant was “less guilty.” See Morris v. Ylst, 447 F.3d 735,
740-41 (9th Cir. 2006) (finding no Brady violation where new
information “did not say Petitioner was not guilty, or that he
was any less guilty” and did not suggest another party
“struck” the victim).

[5] Here, we must part company with the State’s position,
because new evidence suggesting an alternate perpetrator is
“classic Brady material.” Boyette v. Lefevre, 246 F.3d 76, 91
(2d Cir. 2001); see United States v. Jernigan, 492 F.3d 1050,
1056-57 (9th Cir. 2007) (en banc) (“Withholding knowledge
of a second suspect conflicts with the Supreme Court’s direc-
tive that the criminal trial, as distinct from the prosecutor’s
private deliberations, be preserved as the chosen forum for
ascertaining the truth about criminal accusations.”) (internal
17740 WILLIAMS v. RYAN
quotation marks, citation, and brackets omitted). Not only are
the Sweat letters inconsistent with the State’s theory at trial—
that Williams was the only individual responsible for DeLao’s
murder—but they also point to an alternative suspect who
may himself have been responsible for the brutal crime.

The two witnesses mentioned in the letters, McKaney and
Barnett, provided declarations that pointed only to Fields.
There is also reason to believe the declarations from Barnett
and McKaney are more reliable than the Sweat letters. Sweat
prepared the letters in hopes of obtaining an early release
from jail, and thus had every motivation to tell the police what
she thought they wanted to hear. Barnett and McKaney, in
contrast, had no apparent motivation to sign a false declara-
tion implicating Fields. Williams has also provided a plausi-
ble explanation that the statement in the Sweat letters that he
was “going to get” Fields was unrelated to the murder. Wil-
liams believed Fields was responsible for the violent assault
of one of his longtime friends.

Fields is at least a plausible alternative suspect: he had a
history of violence against women and lied about being in jail
at the time of the murder. McKaney and Barnett both saw
Fields disposing of bloody clothing around the time of the
murder and a short walk away from where police discovered
DeLao’s abandoned car. Williams, Fields, Barnett, and
McKaney all knew one another and lived in the same small
town. Juror affidavits suggest that at least one juror reluc-
tantly voted to convict on the basis on the evidentiary record.
There was also little physical evidence connecting Williams
to the crime. This lends materiality to new evidence that
someone else was involved—and possibly solely responsible.
See Jernigan, 492 F.3d at 1054 (considering the strength of
the prosecutor’s case in weighing the materiality of sup-
pressed evidence); Gantt v. Roe, 389 F.3d 908, 913 (9th Cir.
2004) (holding that newly discovered information is material
when it undermines a conviction based upon little physical
evidence).
 WILLIAMS v. RYAN 17741
[6] The Sweat letters thus provided the government with
information concerning a possible alternative suspect that, if
disclosed to the defense, would have allowed Williams to
decide whether to put McKaney and Barnett on the stand to
testify. We have recognized the principle that the government
may not, consistent with Brady, suppress information that
another person committed the crime for which the defendant
is on trial. See Jernigan, 492 F.3d at 1056-57.

The Sweat letters also provided the names of two potential
witnesses that could have testified to events that undercut the
prosecution’s theory that Williams was the lone assailant.
Rather than focusing on the information in the letters, and the
potential materiality of the witnesses’ testimony that might
implicate another perpetrator, the district court prematurely
deemed these two witnesses presumptively not credible on the
basis of inconsistencies in their declarations. Yet, the two dec-
larations were executed in 1999, nine years after the murder.
Given this fact, some inconsistencies do not necessarily make
their stories wholly incredible. More important, “[w]hen ana-
lyzing a Brady claim, we do not reweigh evidence [or] assess
the credibility of witnesses [to] decide whether the suppressed
evidence establishes the guilt of a third party beyond a reason-
able doubt or exonerates petitioner.” Scott v. Mullin, 303 F.3d
1222, 1232 (10th Cir. 2002) (internal quotation marks, cita-
tion, and brackets omitted). The critical question is whether
the suppressed Brady material could have provided material
evidence that may have changed the result. The district court
concluded on the basis of written statements alone that Bar-
nett and McKaney were inherently unbelievable witnesses.
The court did so without holding an in-court evidentiary hear-
ing in order to determine whether they would have been able
to provide material evidence that may have changed the result
of Williams’ trial. This was error. We follow our opinion in
Earp v. Ornoski, 431 F.3d 1158, 1169-70 (9th Cir. 2005).

In Earp, also a death penalty case, we stressed that credibil-
ity should be assessed on the basis of an in-court hearing
17742 WILLIAMS v. RYAN
where the judge can see and hear the witnesses. See id. There,
as here, the district court had resolved a habeas claim on the
basis of written declarations and we held that to be error. See
id. We stated that “[b]ecause the veracity of the witnesses
who signed the affidavits on which Earp based his claim was
at issue, the claim could not be adjudicated without an eviden-
tiary hearing on this disputed issue of material fact.” Id. at
1170.

[7] We are similarly unable to determine on this limited
record, whether there is a “reasonable probability” of a differ-
ent result at trial had this information been available. See
Kyles, 514 U.S. at 433. Although there are many questionable
aspects in the statements and their sources, this is a capital
case in which courts’ responsibility to ensure that due process
was afforded the defendant is critical in order to prevent the
execution of an individual in the face of evidence that might
show him innocent of the crime of conviction. See Burger v.
Kemp, 483 U.S. 776, 785 (1987) (“Our duty to search for con-
stitutional error with painstaking care is never more exacting
than it is in a capital case.”). The district court abused its dis-
cretion in determining these issues on the basis of the docu-
mentary evidence alone. This case is not one of the “rare
instances” where “credibility may be determined without an
evidentiary hearing.” See Earp, 431 F.3d at 1169-70.

The dissent states that Williams is not entitled to an in-
court evidentiary hearing on his Brady claim because he “ac-
tively opposed one” in the district court. (Dissenting Op. at
17762.) This is not an accurate description of the record. Wil-
liams expressly moved for an evidentiary hearing on his
Brady claim, and the district court found he had satisfied
AEDPA’s strict requirements for obtaining one. See 28 U.S.C.
§ 2254(e)(2). The State then argued that the district court
should summarily deny the claim without holding an evidenti-
ary hearing because Williams had not shown that he was
unaware of the information about Fields in the Sweat letters
and the letters were not credible. Alternatively, the State
 WILLIAMS v. RYAN 17743
requested an evidentiary hearing so that it could conduct dis-
covery and develop evidence related to Williams’ and Wil-
liams’ counsel’s knowledge of Field’s alleged participation in
the murder, and cross-examine Sweat, McKaney, and Barnett
to investigate the inconsistencies between the letters and the
declarations. At that point, Williams opposed the State’s
attempt to use an evidentiary hearing to conduct investigatory
discovery when the court had previously granted the State a
five-month extension to investigate these matters, and it had
failed to do so. We do not view this course of events as active
opposition to an in-court evidentiary hearing, and disagree
with the dissent’s conclusion that Williams invited error by
“express[ly] disavow[ing]” an in-court hearing.

We also disagree with the dissent’s conclusion that the
Sweat letters could not have been material to the guilt phase
of Williams’ trial because the letters were not exculpatory.
(Dissenting Op. at 17758-59.) As the dissent recognizes, the
standard for materiality is whether “there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been differ-
ent.” Kyles, 514 U.S. at 433 (citation omitted). The dissent
contends that because Sweat claimed in her letters that Wil-
liams had paid Fields to kill DeLao, and under Arizona law
a person could be convicted of first-degree murder if he hired
someone else to commit a homicide, the Sweat letters could
not have provided evidence that would have exculpated Wil-
liams from culpability for DeLao’s murder. But if the account
of events provided by McKaney and Barnett in their declara-
tions is accurate, it is not altogether clear that Williams was
involved in DeLao’s murder at all. For that reason, an in-court
evidentiary hearing was needed so that the district court could
assess the credibility of these witnesses and determine
whether there was a reasonable probability the result at the
guilt phase of Williams’ trial would have been different had
the State disclosed the Sweat letters in a timely fashion.

The dissent faults us for considering the McKaney and Bar-
nett declarations in our analysis of whether the Sweat letters
17744 WILLIAMS v. RYAN
are material. (Dissenting Op. at 17764.) This contention, how-
ever, is premised on the faulty assumption that the prosecu-
tion could not have known that the information in the Sweat
letters was material. Clearly, a reasonable prosecutor would
have known that the Sweat letters, which identified two new
witnesses and an alternative suspect, could lead to evidence
material to Williams’ culpability for the murder of DeLao.
The declarations confirm that is so, by indicating that the wit-
nesses were available and possessed material information
which may have exculpated Williams. The Supreme Court
has explained that a prosecutor who has any doubt about the
materiality of a piece of evidence favorable to the defendant
should disclose the evidence. Kyles, 514 U.S. at 439 (“[A]
prosecutor anxious about tacking too close to the wind will
disclose a favorable piece of evidence.”); United States v.
Agurs, 427 U.S. 97, 108 (1976) (“[T]he prudent prosecutor
will resolve doubtful questions in favor of disclosure.”). It is
therefore appropriate to consider the declarations of McKaney
and Barnett, and any testimony they may provide at an evi-
dentiary hearing on remand, to determine whether the State’s
suppression of the Sweat letters violated Williams’ due pro-
cess rights under Brady.

[8] We hold the district court erred by not further develop-
ing the factual record of the Brady claim. It would be
improper to dismiss the possibility that Williams was denied
access to information tending to implicate the guilt of another
in the perpetration of this heinous crime. We thus remand this
Brady claim in order for the district court to decide, on the
basis of an appropriate record, whether there were witnesses
who could have provided material evidence favorable to Wil-
liams at trial. After hearing any available testimony from
McKaney, Barnett, Fields, Solis, and Sweat, the district court
will be in a better position to assess whether this newly dis-
covered evidence undermines the jury’s verdict, and whether
the government violated the Brady principle in failing to
inform Williams about it before trial.
 WILLIAMS v. RYAN 17745
II. Williams’ Request for a Mental Health Expert to
Present Mitigating Evidence

Williams next contends the state court unreasonably
applied Ake v. Oklahoma, 470 U.S. 68 (1985), when it denied
him psychiatric assistance at sentencing to present mitigating
evidence related to his crack cocaine usage. Because Williams
failed to make our required threshold showing that his mental
state was in issue, we reject this claim.

[9] The Supreme Court in Ake held that due process
requires the state to provide an indigent defendant funds for
psychiatric assistance when he makes a preliminary showing
that his mental state was a significant factor at the time of the
offense. 470 U.S. at 83. The Arizona Supreme Court did not
explain its reasoning in rejecting Williams’ Ake claim. We
therefore independently review the record, but only, as
required by AEDPA, may grant relief if the state court unrea-
sonably applied controlling federal law as determined by the
Supreme Court. See Pirtle, 313 F.3d at 1167.

The district court denied the Ake claim in this case on two
bases. First, the district court noted that other circuits have
interpreted Ake to require a state to provide a defendant expert
psychiatric assistance at sentencing only where the state also
planned to rely on psychiatric testimony. See Mason v. Mitch-
ell, 320 F.3d 604, 616 (6th Cir. 2003). Yet, we have never
read Ake so narrowly. See Hoffman v. Arave, 455 F.3d 926,
934 (9th Cir. 2006) (“[In Ake], the Supreme Court held that
where an indigent defendant can demonstrate that his mental
capacity is likely to be a ‘significant issue’ at trial or capital
sentencing, he has an absolute right to be provided with psy-
chiatric and psychological expert assistance.”), vacated in
part on other grounds, 552 U.S. 117 (2008); Ronald Williams
v. Stewart, 441 F.3d 1030, 1049 (9th Cir. 2006) (per curiam);
Smith v. McCormick, 914 F.2d 1153, 1157 (9th Cir. 1990).

The district court also ruled that Williams had himself
failed to make a sufficient threshold showing that his mental
17746 WILLIAMS v. RYAN
state was at issue at the time of the murder, because there was
so little in the record to indicate, that due to drug use, Wil-
liams’ mental state was impaired. The district court granted a
COA. We affirm on the latter ground.

[10] Before triggering Ake’s due process right to psychiat-
ric assistance, a defendant must “demonstrate[ ] to the trial
judge that his sanity at the time of the offense is to be a signif-
icant factor.” Ake, 470 U.S. at 83. The defendant in Ake made
this threshold showing for the trial phase by relying on an
insanity defense. Id. at 86. In addition, he had exhibited “bi-
zarre” behavior at arraignment, and established that he
required heavy medication to control his illness. Id. A compe-
tency examination revealed his illness had begun years ear-
lier. Id. At sentencing the prosecution sought to prove, as an
aggravating factor, that the defendant posed a future danger.
Id. The defendant then placed his mental state at issue at sen-
tencing by relying upon the trial testimony of a psychiatrist
that because of mental illness he posed a future danger. Id. He
requested the court to appoint an expert to assist at the capital
sentencing phase and the Supreme Court ultimately agreed he
was entitled to one. Id. at 86-87.

[11] Williams’ initial showing, in contrast, was weak. His
defense at trial was not insanity or diminished capacity, but
that he did not do it. He contends he put his mental state at
issue at sentencing through Michelle Deloney’s trial testi-
mony that he used crack the day before the murder, and
through other testimony that a violent change in character
coincided with his starting to use drugs. Applying the required
level of deference, we find that it was not “objectively unrea-
sonable” for the state courts to determine this was an insuffi-
cient threshold showing. Lockyer v. Andrade, 538 U.S. 63, 75
(2003); 28 U.S.C. § 2254(d)(1), (2). Even with Deloney’s tes-
timony, there was little evidence that Williams’ drug use had
in fact affected the crime. For example, there was no evidence
of bizarre behavior exhibited by Williams at the time of the
offense. See Ronald Williams, 441 F.3d at 1048-50 (holding
 WILLIAMS v. RYAN 17747
that a defendant who did not rely on an insanity defense, had
been found competent, and failed to exhibit “bizarre” or “psy-
chotic” behavior failed to put his mental state at issue); see
also James v. Gibson, 211 F.3d 543, 554 & n.5 (10th Cir.
2000) (holding that the defendant had not made a sufficient
showing that his mental state was at issue at the time of a
murder even though there was evidence that at one point he
had suffered from a mental disorder). Petitioner thus made no
showing that drugs impaired his mental state “at the time of
the offense.” See Ake, 470 U.S. at 83.

[12] The dissent incorrectly suggests that whether a defen-
dant has placed his mental state at issue is irrelevant at sen-
tencing. (Dissenting Op. at 17765-66.) The Court in Ake made
clear that a defendant must show that his mental state was a
“significant factor” at both the guilt and penalty phases. See
id. at 83-84.

[13] We thus affirm the district court’s denial of Williams’
Ake claim. The trial court was not required to appoint a men-
tal health expert at sentencing because the defendant did not
make any showing that his mental state at the time of the mur-
der was at issue by virtue of drug use.

III. Drug Use as a Mitigating Circumstance

[14] Williams also asked the sentencing court to treat his
drug use as a mitigating factor. The trial court refused and he
contends the Arizona Supreme Court improperly required a
direct causal nexus between his drug use and the murder
before it would afford the drug use any mitigating weight at
sentencing. This claim has merit, because the Supreme Court
has repeatedly held no such nexus is required in capital cases.
See, e.g., Tennard v. Dretke, 542 U.S. 274, 284-87 (2004).

[15] Although Williams had denied drug use during the
guilt phase of the trial, he presented drug use as a mitigating
factor at sentencing through the testimony of Deloney and a
17748 WILLIAMS v. RYAN
friend, Raymundo Mendez. Deloney testified that Williams
was a nonviolent person up until the time he started to abuse
crack. She stated that once he started to abuse drugs he
became progressively more violent. Mendez testified that he
had known Williams most of his life. He said Williams ini-
tially had a reputation as a quiet and peaceful person. He also
testified that about the time Williams became known as a drug
user, that he became violent and started carrying guns with
him. Williams did not testify at his sentencing hearing.

The state trial court ruled that Williams failed to establish
his drug use as a mitigating factor because it found “there was
no evidence, including considering [Williams’] own testi-
mony, to indicate that cocaine usage by [Williams] was a fac-
tor in the perpetration of the murder.” The Arizona Supreme
Court affirmed this ruling on direct appeal. The court stated
that, under Arizona law, “[w]ithout a showing of some
impairment at the time of the offense, drug use cannot be a
mitigating circumstance of any kind.” 904 P.2d at 453. The
court thus refused to consider this mitigating circumstance
because Williams “offered no evidence showing that he was
intoxicated when he murdered [DeLao].” Id.

The district court considered and rejected this claim on the
merits, holding the state court was not required to consider
Williams’ drug use as a mitigating circumstance. The district
court declined to issue a COA, but the issue, at the very least,
is one upon which reasonable jurists could disagree. See
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). We therefore
certify this issue and consider its merits.

[16] We may reverse only if the Arizona Supreme Court’s
decision was contrary to clearly established federal law. See
28 U.S.C. § 2254(d)(1). The federal law is clear that a sen-
tencing court must consider all mitigating evidence. The deci-
sion of the Arizona Supreme Court that drug use could not be
considered as a mitigating factor “of any kind,” is contrary to
the Supreme Court’s consistent decisions in capital cases
 WILLIAMS v. RYAN 17749
beginning more than a decade before Williams’ trial. See
Smith v. Texas, 543 U.S. 37, 45 (2004); Tennard, 542 U.S. at
284-87; Eddings, 455 U.S. at 114-15; Lockett, 438 U.S. at
604-60.

The Lockett plurality in 1978 struck down an Ohio statute
that allowed courts to consider only specified mitigating fac-
tors. 438 U.S. at 597, 609-11. The Court held that “in all but
the rarest kind of capital case, [the sentencer should] not be
precluded from considering, as a mitigating factor, any aspect
of a defendant’s character or record and any of the circum-
stances of the offense that the defendant proffers as a basis for
a sentence less than death.” Id. at 604.

A court majority in Eddings extended Lockett and held that
an Oklahoma court violated the Constitution when it refused
to consider evidence of a defendant’s abusive childhood. 455
U.S. at 113. The Court stated that a trial court “may determine
the weight to be given relevant mitigating evidence [but that
it] may not give it no weight by excluding such evidence from
[its] consideration.” 455 U.S. at 114-15.

In Tennard, the Court rejected a Fifth Circuit test that
barred the consideration of mitigating evidence unless “the
criminal act was attributable to this severe permanent condi-
tion.” 542 U.S. at 283. The Court held that “a State cannot bar
the consideration of . . . evidence if the sentencer could rea-
sonably find that it warrants a sentence less than death.” Id.
at 285 (internal quotation marks and citation omitted).

In Smith the Court explicitly rejected a Texas court’s
refusal to consider mitigating evidence unless there was a
“nexus” between the mitigating circumstance and the murder.
543 U.S. at 45. The Court found that such a “nexus test” was
a “a test [it had] never countenanced and now . . . unequivo-
cally rejected.” Id. Tennard and Smith are retroactively appli-
cable. See Schad v. Ryan, 602 F.3d 1022, 1045 (9th Cir. 2010)
(per curiam) (“Tennard and Smith are retroactively applicable
17750 WILLIAMS v. RYAN
to the Arizona Supreme Court’s . . . decision in this case.”);
see also Styers v. Schriro, 547 F.3d 1026, 1035-36 (9th Cir.
2008) (applying Smith retroactively).

[17] At the time of Williams’ trial, Arizona courts recog-
nized a nexus test similar to those rejected in Tennard and
Smith. See, e.g., State v. Djerf, 959 P.2d 1274, 1289 (Ariz.
1998) (“The trial court considered the evidence but found it
irrelevant and declined to give it weight because proof was
lacking that [the defendant’s] family background had any
effect on the crimes.”). This court has repeatedly ordered
habeas petitioners resentenced when the death penalty rested
upon Arizona courts’ use of this unconstitutional test. See,
e.g., Lambright, 490 F.3d at 1114-15; Styers, 547 F.3d at
1035-36.

[18] The Arizona Supreme Court made the same error in
this case and we must reach the same result. By holding that
“drug use cannot be a mitigating circumstance of any kind”
unless Williams demonstrated “some impairment at the time
of the offense,” the Arizona Supreme Court imposed a
“nexus” requirement contrary to Eddings, Lockett, Tennard,
and Smith. The Arizona courts had discretion as to the weight
to be given Williams’ drug addiction, but erred by refusing to
consider it at all unless he proved it was a factor in the crime.
We thus vacate the death sentence, reverse, and remand for
issuance of a writ of habeas corpus. “Further sentencing by
the state court shall be conducted in conformance with appli-
cable law.” Lambright, 490 F.3d at 1128.

IV. Williams’ Remaining Claims

Williams’ brief to this court raised a number of issues the
district court declined to certify. The district court found these
issues procedurally barred and did not consider them on the
merits. We have reviewed the district court’s decision and
reviewed the record and decline to certify any additional
issues.
 WILLIAMS v. RYAN 17751
CONCLUSION

We vacate the judgment of the district court denying the
petition and remand for an in-court evidentiary hearing on the
petitioner’s Brady claim challenging the conviction. We also
remand with instructions to grant the petition on petitioner’s
claim of denial of due process at sentencing for failure to con-
sider all mitigating circumstances. We otherwise affirm the
denial of relief.

AFFIRMED in part, VACATED in part, and
REMANDED.

IKUTA, Circuit Judge, dissenting in part and concurring in
part:

I respectfully dissent from the majority’s disposition of
petitioner Aryon Williams’s claim based on Brady v. Mary-
land, 373 U.S. 83 (1963). While I concur in the result reached
by the majority on Williams’s other two claims, I write sepa-
rately to express my disagreement with the majority’s reason-
ing.

I

I agree with the majority that Williams’s Brady claim is not
procedurally barred and that we may consider its merits. I dis-
agree, however, with the majority’s decision to remand to the
district court for an in-court evidentiary hearing. Instead, I
would hold that the prosecution’s suppression of the letters
written by Beverly Sweat rose to the level of a Brady viola-
tion with respect to the penalty phase of Williams’s capital
case, but not with respect to the guilt phase. Accordingly, I
would uphold the district court’s denial of the habeas writ as
to Williams’s conviction, but grant the writ as to his sentence.
17752 WILLIAMS v. RYAN
A

Five years after Williams was convicted and sentenced to
death for the murder of Rita DeLao, the prosecution turned
over to the defense a series of jailhouse letters offering to pro-
vide information about the DeLao murder in exchange for
early release from jail. The letters had been received by the
government six years earlier, before Williams’s trial had
begun, and were written by a woman named Beverly Sweat.
They were addressed to Detective Tom Solis, the lead investi-
gator in DeLao’s murder.

In the letters, Sweat identified two individuals with infor-
mation about DeLao’s murder, Yolanda McKaney, a fellow
jailmate of Sweat, and Milton Barnett. The letters also identi-
fied an additional perpetrator in the commission of the mur-
der, Patrick Fields, and an alternate theory of the crime,
namely that Williams had paid Fields to commit the murder
on his behalf. Relevant here, the letters stated:

Try questioning Milton Barnett Jr. [Yolanda
McKaney] mention his name too so may he knows
something last WED, we went to the yard and me
and Yolanda [McKaney] was talking to [Williams]
an he said there was two people he was going to get
one from Eloy—>Patrick Fields one from Casa
Grande Milton Barnette [Williams] kept asking
question about Milton so check it out.

...

I went ahead an talk to Yolanda [McKaney] an she
told me the what happen the night Rita [DeLao]
good killed, she said she was walking down trekelle
Road in Casa Grande an ran into Patrick [Fields] he
was all bloody an she ask him why was he all bloody
an he told her he had just killed Rita [DeLao] an
[Williams] had paid him 1000 for doing it he had a
 WILLIAMS v. RYAN 17753
knife on him, an said he used it to cut her eyes out
also used a mopad to run over her an her an Patrick
burned up the cloths he had on an the went an spent
the money which took about two or three days. I
think you should talk to her about this I know [Wil-
liams] is guilty of some part of it but I wish you
would get me out of here befor you bring it to sur-
face . . . .

Patrick Fields was a mentally unstable person who, at the time
of DeLao’s murder, had an extensive criminal history with
charges including burglary, aggravated assault, and sexual
assault. Fields was also responsible for a series of attacks
against women in the months after DeLao’s murder, in the
same area where DeLao was killed.

Based on the government’s withholding of these letters,
Williams attempted to raise a Brady claim in a state post-
conviction petition. The state post-conviction court did not
reach the merits of this claim, however, because it held that
the claim was procedurally barred. Williams had asked for an
extension of time to file the petition under Arizona Rule of
Criminal Procedure 32.4(c)(1), which permits the state court
to grant a defendant a sixty-day extension in which to file a
successive post-conviction petition “[o]n a showing of good
cause.” The state court determined that there was no good
cause for the extension and, as such, denied Williams’s
request.

Presenting the Brady issue to the district court, Williams
moved for an evidentiary hearing to explore the scope of the
prosecutor’s potential wrongdoing. The district court granted
the request, but determined that, “[i]n light of the narrow
focus” of the Brady claim and “because [Williams’s] motion
d[id] not . . . indicate why particular evidence requires oral
presentation,” it would conduct the hearing “through receipt
of written evidence” rather than through live testimony. The
government contested this ruling, arguing that an in-court
17754 WILLIAMS v. RYAN
hearing was necessary to permit cross-examination of Wil-
liams’s witnesses. Williams responded that an in-court hear-
ing was not warranted because the government had been
given sufficient time to investigate the claim through discov-
ery. The district court ultimately declined the government’s
request to conduct the hearing in person.

Reviewing the Brady issue on the merits, the district court
focused its analysis on the declarations of McKaney and Bar-
nett, which Williams’s counsel had collected in the course of
an investigation into the Brady issue after the government’s
disclosure of the Sweat letters, years after Williams’s convic-
tion and sentencing. McKaney’s declaration reported that she
had witnessed Fields burning a bloody shirt in an alley dump-
ster around the time of DeLao’s death. Similarly, Barnett’s
declaration reported that he had seen Fields, covered in blood,
dispose of something in an alley dumpster the day before he
heard DeLao had been killed.

Ultimately, the district court concluded that the information
regarding Patrick Fields was not material under Brady
because it neither impeached Michelle Deloney’s testimony
that Williams had confessed to the crime nor “exculpate[d]
[Williams]; rather it affirm[ed Williams’s] involvement in the
murder.” The district court noted that McKaney and Barnett
would be subject to “adversarial testing” in the event of a new
trial because their declarations were inconsistent, both with
each other and with the Sweat letters. In addition, the district
court observed that the Sweat letters erroneously described
the manner in which DeLao was killed, and that the credibil-
ity of Sweat and McKaney was subject to question because of
the nature of their jailhouse discussions. Based on its holding
that Williams had failed to satisfy Brady’s materiality prong,
the district court denied habeas relief.

B

As explained by the majority, the state court’s denial of
Williams’s request for an extension under Arizona Rule of
 WILLIAMS v. RYAN 17755
Criminal Procedure 32.4(c)(1), which had the effect of barring
consideration of Williams’s claim on procedural grounds, was
not a “firmly established and regularly followed state prac-
tice” in the capital context, Ford v. Georgia, 498 U.S. 411,
423-24 (1991) (internal quotation marks omitted), and there-
fore the state court’s ruling was inadequate to bar habeas
relief. Because Williams’s claim was not “adjudicated on the
merits,” 28 U.S.C. § 2254(d)(1), there is “no state court deci-
sion on this issue to which to accord deference,” and I agree
with the majority that our review of this claim is de novo. See
Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002)
(“[W]hen it is clear that a state court has not reached the mer-
its of a properly raised issue, we must review it de novo.”).

“[W]hen the State withholds from a criminal defendant evi-
dence that is material to his guilt or punishment, it violates his
right to due process of law in violation of the Fourteenth
Amendment.” Cone v. Bell, 129 S. Ct. 1769, 1782 (2009). As
the majority states, “[t]here are three components of a true
Brady violation: The evidence at issue must be favorable to
the accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the
State, either willfully or inadvertently; and prejudice must
have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82
(1999). Stated otherwise, a Brady violation results when the
prosecution suppresses evidence that is “material,” that is,
when “there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding
would have been different.” Id. at 280. Under this standard,
reversal of a conviction or sentence is required upon a “show-
ing that the favorable evidence could reasonably be taken to
put the whole case in such a different light as to undermine
confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419,
435 (1995). Here, there is no dispute that the government sup-
pressed the Sweat letters; therefore, the court’s inquiry is con-
fined to whether the suppressed letters are favorable to
Williams and whether their suppression was prejudicial to the
result of his proceeding.
17756 WILLIAMS v. RYAN
Williams articulates a number of reasons why the Sweat
letters are material. The letters identify by name an additional
suspect in DeLao’s murder and two individuals with informa-
tion about the crime. The perpetrator identified in the letters,
Fields, was mentally ill and had an extensive criminal history.
According to the letters, Fields confessed to McKaney that he
committed the murder, and this confession occurred on the
night the murder occurred, while Fields was still covered in
blood.

Williams argues that, because he was convicted and sen-
tenced on the basis of circumstantial evidence, there is a rea-
sonable probability that the result of the proceeding would
have been different had the letters been disclosed. First, Wil-
liams contends that disclosure of the letters would have
enabled him to point to another person who committed the
crime, thereby supporting his claim of innocence. Williams
asserts that, had he known about Barnett and McKaney, he
would have been able to call them to the stand and they would
have testified regarding their knowledge of Fields’s participa-
tion in the crime. Williams claims he also could have intro-
duced evidence that Fields was a likely suspect, based on his
mental instability and history of committing criminal acts in
the area.

Second, Williams theorizes that disclosure of the letters and
the police’s failure to follow up with Sweat, McKaney, and
Barnett would have furthered his trial theory that the police
were negligent in their investigation of the crime. Like the
defendant in Kyles, Williams argues that the information in
the letters would have permitted “the defense [to] examine[ ]
the police to good effect on their knowledge of [Fields’s]
statements and so have attacked the reliability of the investi-
gation in failing even to consider [Fields’s] possible guilt.”
514 U.S. at 446.

Last, Williams contends that he could have used the infor-
mation in the letters to impeach Michelle Deloney’s testimony
 WILLIAMS v. RYAN 17757
that Williams confessed to committing the crime, because the
version of events described by Deloney differed from that
depicted in the letters.

Our recent en banc decision United States v. Jernigan sup-
ports Williams’s argument that the information regarding Pat-
rick Fields as an additional perpetrator was material to
Williams’s defense. 492 F.3d 1050 (9th Cir. 2007) (en banc).
Jernigan also dealt with a situation where the prosecutor
withheld information regarding another possible perpetrator
of the crime for which the defendant was on trial. See id. at
1051. There, the defendant was charged with bank robbery
based primarily on her physical likeness to eyewitnesses’
descriptions of the robber. Id. The prosecutor withheld evi-
dence of an alternative suspect fitting the same physical
description who had been arrested for robbing nearby banks
after the defendant was already in custody. Id. at 1054-55. In
reviewing whether the suppression of the existence of the
alternative suspect constituted a Brady violation, we deter-
mined that the information was material and therefore that the
defendant’s habeas writ should be granted. Id. at 1057.

Our holding in Jernigan was based on the principle that
“[w]ithholding knowledge of a second suspect conflicts with
the Supreme Court’s directive that ‘the criminal trial, as dis-
tinct from the prosecutor’s private deliberations, be preserved
as the chosen forum for ascertaining the truth about criminal
accusations.’ ” Id. at 1056-57 (brackets omitted) (quoting
Kyles, 514 U.S. at 440). Jernigan indicates that credible infor-
mation about a second suspect to a crime is generally material
and therefore should be disclosed to the defendant.

Like the suppressed evidence in Jernigan, the Sweat letters
provide information that credibly indicates the existence of a
second suspect. The letters give a detailed description of spe-
cific, named individuals, at least one of whom was known to
the informant, all of whom were part of the same community
in a small town. At least one of the individuals identified in
17758 WILLIAMS v. RYAN
the letters, Yolanda McKaney, allegedly interacted with Pat-
rick Fields near the time of the murder and reported that he
was covered in blood and confessed to the crime. Moreover,
the prosecutor would have known at the time of receiving
these letters that Fields was a plausible suspect, based on
then-recent incidents in which Fields had attacked other
women in the area. Under Jernigan, these circumstances
weigh in favor of the letters’ materiality.

For Williams to prevail on this claim, however, he must
also prove that the letters are “favorable” to him, Strickler,
527 U.S. at 281, either because they are exculpatory or
because they have impeachment value. See id. at 281-82. On
this point, Williams’s case and Jernigan diverge. Unlike the
suppressed evidence in Jernigan, the Sweat letters do not
exculpate Williams by proposing an alternative suspect to the
DeLao murder; rather, they identify Fields as an additional
suspect or accomplice to the crime. At most, the letters state
that Williams paid Fields to commit the act, and they
expressly maintain that “[Williams] is guilty of some part of
it.”

That the letters identify an accomplice rather than an alter-
native suspect is dispositive of Williams’s claim that the let-
ters are material as to his conviction. Our case law advises
that suppressed evidence is not exculpatory (and a Brady
claim will fail) if the evidence merely suggests that another
person is “equally guilty” as the defendant, or if it fails to
show that “the [defendant is] not guilty, or that he [is] any less
guilty.” Morris v. Ylst, 447 F.3d 735, 740 (9th Cir. 2006). In
Arizona, a person may be guilty of first degree murder
whether he hires someone to commit the act or commits it
himself, see Ariz. Rev. Stat. § 13-1105 (1989); e.g., State v.
Carlson, 48 P.3d 1180 (Ariz. 2002). Thus, while the informa-
tion in the Sweat letters might have changed the prosecutor’s
theory of the case at trial, it would not have made Williams
any “less guilty” of first degree murder. Accordingly, the non-
 WILLIAMS v. RYAN 17759
disclosure of the letters cannot constitute a Brady violation
with respect to the jury’s finding of guilt on the murder charge.1

The majority points out that the Sweat letters could be
exculpatory as to Williams’s guilt “if the account of events
provided by McKaney and Barnett in their declarations is
accurate.” Maj. Op. at 17743. I disagree. As discussed below,
information that comes to light years after trial and sentencing
cannot alter the materiality of potential Brady information
because the Brady analysis must be made from the perspec-
tive of the prosecutor at the time of non-disclosure. The Sweat
letters, not the McKaney and Barnett declarations (which
were never in the prosecutor’s files), are the potential Brady
material. The Sweat letters are not exculpatory as to Wil-
liams’s culpability for the crime, and McKaney and Barnett’s
post hoc declarations cannot retroactively make them so.

This does not end the inquiry, however. The Supreme
Court has made clear that suppressed evidence which is not
material to the defendant’s guilt may still be material to the
defendant’s sentence. See Cone, 129 S. Ct. at 1786. Indeed,
such was the case in Brady, in which the prosecutor sup-
pressed an accomplice’s confession to the crime for which the
defendant was convicted and sentenced to death. Brady v.
State, 174 A.2d 167, 168 (Md. 1961). The state court deter-
mined that nothing in the accomplice’s confession would have
reduced the defendant’s offense to a lesser crime than murder
in the first degree, and hence the suppression was not material
to the defendant’s guilt. Id. at 172. However, the suppression
was material to the defendant’s sentence, and therefore the
state court ordered a new trial on the question of punishment
1
Nor could the letters be used to impeach Deloney’s credibility. See Str-
ickler, 527 U.S. at 281-82 (suppressed information is favorable to the
accused when it is exculpatory or has impeachment value). Deloney testi-
fied that Williams confessed to her that he committed the crime. The let-
ters do not bear any relation to Deloney’s statements that Williams
confessed, nor do they call into question Deloney’s veracity as a witness.
17760 WILLIAMS v. RYAN
only. Id.; see also Cone, 129 S. Ct. at 1786 (holding that sup-
pressed evidence was not material to the defendant’s guilt but
was material to his sentence). The Supreme Court affirmed.
Brady, 373 U.S. at 91.

In this case, as in Brady, the distinction between the value
of suppressed evidence as to guilt and as to punishment is sig-
nificant. While the Sweat letters are not exculpatory with
respect to Williams’s culpability for the crime, they are excul-
patory with respect to his role in the physical act of murder,
and thus raise a “reasonable probability” that, had they been
disclosed, Williams would not have been sentenced to death.
See Cone, 129 S. Ct. at 1783.

The state court sentenced Williams to death based on the
presence of two statutory aggravating factors: (1) Williams
was previously convicted of a felony involving the use or
threat of violence (the armed robbery and attempted murder
of Norma Soto), see Ariz. Rev. Stat. § 13-703(F)(2) (1989);
and (2) Williams murdered DeLao in an especially heinous
and depraved manner, see Ariz. Rev. Stat. § 13-703(F)(6)
(1989).2 State v. Williams, 904 P.2d 437, 452 (Ariz. 1995).
The state supreme court upheld application of this latter factor
because the murder involved gratuitous violence “in excess of
that necessary to kill,” and because DeLao was helpless dur-
ing the attack. Id.

In Arizona, the “heinous and depraved portion of the (F)(6)
aggravator focuses on the defendant’s state of mind at the
time of the crime[ ] . . . as evidenced through [the defen-
dant’s] actions.” State v. Carlson, 48 P.3d 1180, 1193 (Ariz.
2
The state court found no statutory mitigating factors, but found as non-
statutory mitigation that Williams had no criminal record prior to the mur-
der and that defendant had in the past displayed good conduct and
character. Concluding that the mitigating evidence was insufficient to
invoke leniency, the state court sentenced Williams to death. Williams,
904 P.3d at 444.
 WILLIAMS v. RYAN 17761
2002) (internal citation omitted); see also State v. Gretzler,
659 P.2d 1, 10 (Ariz. 1983) (holding that “heinous and
depraved go to the mental state and attitude of the perpetrator
as reflected in his words and actions”). The state court’s rul-
ing that “[Williams] committed the murder in an especially
heinous or depraved manner,” Williams, 904 P.2d at 452, was
based on the assumption that Williams physically committed
the crime (and hence the gratuitous violence of the slaying
and helplessness of the victim could be attributed to his
actions). The Sweat letters suggest, however, that Fields, and
not Williams, committed the actual killing. There is nothing
in the letters to indicate that Williams was even present when
the murder occurred.

If the Sweat letters had been disclosed, Williams could
have argued that he did not commit the crime in a heinous and
depraved manner, because he did not physically murder
DeLao and was not even a witness to the act. Thus, as pertains
to sentencing, the letters contain exculpatory information that
could have reduced the likelihood that Williams would be
sentenced to death. The government’s failure to disclose the
letters was also prejudicial: without the aggravating factor of
heinousness and depravity, the only basis for sentencing Wil-
liams to death would have been his prior violent felony con-
viction, and there is a reasonable probability that the trial
court would not have applied the death penalty on that basis
alone. Thus, by suggesting that Fields and not Williams com-
mitted the physical act of murder, the letters “could reason-
ably be taken to put the whole [sentencing proceeding] in
such a different light as to undermine confidence in the [pen-
alty applied].” Kyles, 514 U.S. at 435. As such, it was a viola-
tion of Brady for the prosecutor to withhold the letters from
Williams for sentencing purposes.

C

I respectfully dissent from the majority’s decision to
remand this case for an in-court evidentiary hearing. The
17762 WILLIAMS v. RYAN
majority errs in its decision to remand, both because Williams
has waived any right to such a hearing, and because Brady
does not allow a court to evaluate the materiality of sup-
pressed evidence through the lens of information and testi-
mony gathered years after trial.

First, the majority fails to acknowledge that Williams has
waived his right to an in-court evidentiary hearing on this
claim. Williams’s appellate brief makes only passing mention
of the in-court hearing issue without any analysis or legal
authority. The rule in this circuit is that “we review only
issues which are argued specifically and distinctly in a party’s
opening brief.” Greenwood v. F.A.A., 28 F.3d 971, 977 (9th
Cir. 1994). “We will not manufacture arguments for an appel-
lant.” Id. Williams’s single observation that the district court
should have conducted an in-person evidentiary hearing, with-
out supporting reasoning, is insufficient to raise this issue on
appeal. See Hilao v. Estate of Marcos, 103 F.3d 767, 778 n.4
(9th Cir. 1996).

To the extent this issue is even before us, Williams is
barred from arguing for an in-person evidentiary hearing. Not
only did Williams fail to move the district court for an in-
person hearing, he actively opposed one. Indeed, the reason
given by the district court for holding a paper hearing rather
than an in-court one was that Williams’s motion for a hearing
did “not identify specific evidence to be developed at an evi-
dentiary hearing, or indicate why particular evidence requires
oral presentation.” Later, when the government requested that
the hearing be conducted in-person, Williams objected, argu-
ing that an in-person hearing was unwarranted because “[t]he
State of Arizona has had over fifteen years since they received
the letters to investigate these issues, and . . . five additional
months provided by [the district court] specifically for” the
purpose of exploring inconsistencies in the McKaney and
Barnett declarations. Given Williams’s express disavowal of
an in-court hearing, the district court’s decision not to hold
the hearing in-person was at most invited error, and certainly
 WILLIAMS v. RYAN 17763
not a basis for remand here. See Marx v. Loral Corp., 87 F.3d
1049, 1056 (9th Cir. 1996) (stating that appellants “should be
barred from asserting [a] theory on appeal” that directly con-
tradicts their position in the district court); Deland v. Old
Republic Life Ins. Co., 758 F.2d 1331, 1336 (9th Cir. 1985)
(stating that a litigant “may not on review complain of issues
. . . where the objection is inconsistent with the position taken
below” (internal quotation marks omitted)).

The majority’s reasoning on this point misses the mark.
While the majority explains Williams’s motivation for oppos-
ing the State’s motion (because in Williams’s view, the State
should have already completed its investigation of these mat-
ters), the majority does not make clear how this additional
information negates the fact that Williams expressly opposed
an in-court evidentiary hearing. See Maj. Op. at 17742-43.
Rather, the majority acknowledges that the State moved for an
in-court evidentiary hearing, and that Williams opposed it.
Maj. Op. at 17742-43.

Second, an in-person evidentiary hearing would serve no
purpose in this context. A reviewing court’s evaluation of
whether the suppression of a particular piece of evidence vio-
lated the prosecutor’s duties under Brady is based on the char-
acter of the information known to the prosecutor at the
relevant time, that is, before trial, during the course of trial,
and during sentencing. See United States v. Agurs, 427 U.S.
97, 107 (1976) (“[I]n advance of trial, and perhaps during the
course of a trial as well, the prosecutor must decide what, if
anything, he should voluntarily submit to defense counsel.”);
Villasana v. Wilhoit, 368 F.3d 976, 979 (8th Cir. 2004)
(“[T]he prosecutor’s absolute duty to disclose under Brady is
limited to evidence a reasonable prosecutor would perceive at
the time as being material and favorable to the defense.”
(emphasis added)). Information that comes to light after trial
and sentencing cannot alter the materiality of potential Brady
information from the only perspective that matters: the per-
spective of the prosecutor at the time of non-disclosure. See
17764 WILLIAMS v. RYAN
Agurs, 427 U.S. at 108 (stating that, though there is a “signifi-
cant practical difference between the pretrial decision of the
prosecutor and the post-trial decision of the judge” in deter-
mining what evidence must be disclosed, “[l]ogically the
same standard [for evaluating the evidence] must apply at
both times”). While it is true that Brady holds the prosecutor
responsible for determining whether some seemingly insignif-
icant piece of information may become material in the course
of trial, the prosecutor has never been held responsible for
foreseeing that such information could turn out to be material
in the context of evidence developed years after trial. See
Kyles, 514 U.S. at 437 (stating that, under Brady, “the prose-
cution, which alone can know what is undisclosed, must be
assigned the consequent responsibility to gauge the likely net
effect of all such evidence and make disclosure when the
point of ‘reasonable probability’ is reached”). In light of this
principle, neither the McKaney and Barnett declarations nor
any further testimony at an in-court hearing can shed addi-
tional light on the question whether the prosecutor should
have known that the Sweat letters were material as to Wil-
liams’s guilt.

Rather than accepting this point, the majority attempts to
smuggle post hoc evidence (such as the McKaney and Barnett
declarations and an evidentiary hearing) into the Brady deter-
mination for an obvious reason: the Sweat letters themselves
are not exculpatory as to Williams’s guilt. Nor could a reason-
able prosecutor have known that the Sweat letters might lead
to exculpatory evidence, because contrary to the majority’s
suggestion, see Maj. Op. at 17743-44, the declarations contra-
dict the Sweat letters as to the crucial issue of Williams’s cul-
pability for the crime. Prosecutors have no obligation under
Brady to weigh whether the evidence in their files might
somehow lead to future contradictory evidence in determining
whether to disclose. To hold otherwise would be tantamount
to requiring prosecutors to disclose everything in their case
files, which Brady does not do. See United States v. Bagley,
473 U.S. 667, 675 (1985) (stating that a prosecutor is not
 WILLIAMS v. RYAN 17765
required under Brady to “deliver his entire file to defense
counsel”). Because the Sweat letters themselves are not mate-
rial to the guilt phase, and because post-hoc evidence will not
make them so, there is no reason to require the district court
to hold an evidentiary hearing.

For the same reason, the majority’s reliance on Earp v.
Ornoski, 431 F.3d 1158 (9th Cir. 2005), for the proposition
that credibility must typically be assessed through live testi-
mony, Maj. Op. at 17741-42, is misplaced. It may be that,
where credibility is properly at issue, “an in court hearing
where the judge can see and hear the witnesses” is appropri-
ate. Maj. Op. at 17741-42 (citing Earp, 431 F.3d at 1169-70).
But because no credibility question arises in Williams’s
claim, there is no basis to hold such a hearing here.

Accordingly, the majority errs both in providing a form of
relief to which Williams is not entitled, and in requiring the
district court to consider the materiality of the Sweat letters in
the context of after-acquired evidence that was not known and
could not have been known to the government at the time of
trial. The majority’s new formulation of the prosecutor’s
Brady obligation represents a dangerous expansion, one
which is contrary to the Supreme Court’s balanced approach.

II

Although I concur in the result reached by the majority on
Williams’s other two claims, namely his claim under AEDPA
that the state court unreasonably applied Ake v. Oklahoma,
470 U.S. 68 (1985), and his claim under AEDPA that the state
court should not have required a causal nexus between his
drug use and crime of conviction at sentencing, I disagree
with the majority’s analysis, for the reasons described below.

A

Williams argues that the state court unreasonably applied
Ake, 470 U.S. 68, when it denied him psychiatric assistance
17766 WILLIAMS v. RYAN
at sentencing to present mitigating evidence related to his
crack cocaine usage. The state supreme court reached this
claim, but did not explain its reasoning in rejecting it. I agree
with the majority that when the state court denies relief on the
merits but provides no rationale for its decision, we “perform
an ‘independent review of the record’ to ascertain whether the
state court decision was objectively unreasonable.” Himes v.
Thompson, 336 F.3d 848, 853 (9th Cir. 2003) (quoting Del-
gado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000)). In this situ-
ation, AEDPA deference still applies; “[t]hat is, although we
independently review the record, we still defer to the state
court’s ultimate decision.” Pirtle, 313 F.3d at 1167. “Indepen-
dent review of the record is not de novo review of the consti-
tutional issue, but rather, the only method by which we can
determine whether a silent state court decision is objectively
unreasonable.” Himes, 336 F.3d at 853.

In setting forth the standard for when a criminal defendant
is entitled to a psychiatric expert provided by the state, Ake
distinguishes between the trial and sentencing phases of the
defendant’s criminal proceedings. See 470 U.S. at 83. At trial,
“when a defendant demonstrates to the trial judge that his san-
ity at the time of the offense is to be a significant factor at
trial,” Ake holds that “the State must, at a minimum, assure
the defendant access to a competent psychiatrist who will
conduct an appropriate examination and assist in evaluation,
preparation, and presentation of the defense.” Id. Psychiatric
assistance in this context is limited by its terms to the defen-
dant’s trial and trial preparation, and does not extend to the
defendant’s sentencing proceedings. See id.

With respect to the defendant’s due process entitlement to
a psychiatric expert at sentencing, Ake provides a separate
test. Under Ake, entitlement to a psychiatric expert at sentenc-
ing is limited to defendants charged with capital crimes. See
id. (“We have repeatedly recognized the defendant’s compel-
ling interest in fair adjudication at the sentencing phase of a
capital case.”). “[I]n the context of a capital sentencing pro-
 WILLIAMS v. RYAN 17767
ceeding,” Ake holds that a defendant is entitled to a mental
health expert only “when the State presents psychiatric evi-
dence of the defendant’s future dangerousness.” Id. at 84. The
defendant may use the psychiatric expert in this situation to
“rebut the State’s evidence of his future dangerousness.” Id.

The majority fails to even acknowledge that Ake provided
distinct tests for the trial phase and penalty phase of a defen-
dant’s case. Instead, the majority applies Ake’s test for the
trial phase to Williams’s claim that he was deprived of a psy-
chiatric expert at sentencing. Maj. Op. at 17746 (interpreting
Ake as requiring the government to provide a psychiatric
expert to a defendant, both at trial and capital sentencing,
when the defendant can make the threshold showing that “his
sanity at the time of the offense is to be a significant factor”
(internal quotation mark omitted)); cf. Tuggle v. Netherland,
516 U.S. 10, 12 (1995) (“[W]e held in Ake[ ], that when a
prosecutor presents psychiatric evidence of an indigent defen-
dant’s future dangerousness in a capital sentencing proceed-
ing, due process requires that the State provide the defendant
with the assistance of an independent psychiatrist”); Simmons
v. South Carolina, 512 U.S. 154, 165 (1994) (interpreting Ake
as holding that a defendant is entitled to a psychiatric expert
at capital sentencing proceedings “where the State presents
psychiatric evidence of a defendant’s future dangerousness”).
The majority’s interpretation of Ake, in my view, is erroneous.

Because Williams argues that he was denied a psychiatric
expert only at sentencing, the state court’s rejection of Wil-
liams’s Ake claim could be contrary to or an unreasonable
application of Ake only if the government presented psychiat-
ric evidence of Williams’s future dangerousness in his capital
sentencing proceedings. 470 U.S. at 86 (holding that the
defendant was entitled to a psychiatric expert at sentencing
because his “future dangerousness was a significant factor at
the sentencing phase”). Here, the government did not. Apply-
ing the required level of AEDPA deference, it was therefore
not objectively unreasonable for the state court to deny this
17768 WILLIAMS v. RYAN
claim. See § 2254(d)(1); Lockyer v. Andrade, 538 U.S. 63, 75
(2003).

B

The state court refused to treat Williams’s drug use as a
mitigating factor in deciding his sentence. Williams contends
that the state court’s refusal was based on a requirement that
his drug use have a direct causal nexus to his crime of convic-
tion, and that this causal requirement was contrary to or an
unreasonable application of Supreme Court precedent. See,
e.g., Eddings v. Oklahoma, 455 U.S. 104, 114-15 (1982).
Because the state supreme court adjudicated this claim on its
merits in a reasoned decision, the deferential AEDPA stan-
dard applies. See Himes, 336 F.3d at 852-53. Therefore, under
§ 2254(d)(1), we can reverse the state court’s decision only if
it “was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the
Supreme Court of the United States.”

As described in the majority opinion, at the time of Wil-
liams’s trial, Arizona courts refused to consider mitigating
evidence unless that evidence had a nexus to the crime for
which the defendant was being sentenced. See, e.g., State v.
Djerf, 959 P.2d 1274, 1289 (Ariz. 1998). Following this rule,
the state sentencing court declined to consider Williams’s
drug use as a mitigating factor because it determined that,
“[w]ithout a showing of some impairment at the time of the
offense, drug use cannot be a mitigating circumstance of any
kind.” Williams, 904 P.2d at 453.

I agree with the majority that this decision by the state
court was contrary to the clearly established Supreme Court
holdings in Lockett v. Ohio, 438 U.S. 586 (1978) (plurality),
and Eddings, 455 U.S. 104, both of which prohibit courts
from categorically excluding mitigating evidence from its
consideration in capital sentencing proceedings. See Eddings,
455 U.S. at 114-15 (“[The sentencing court] may determine
 WILLIAMS v. RYAN 17769
the weight to be given relevant mitigating evidence. But [the
court] may not give it no weight by excluding such evidence
from [its] consideration.”); Lockett, 438 U.S. at 604 (“[I]n all
but the rarest kind of capital case, [the sentencing court
should] not be precluded from considering, as a mitigating
factor, any aspect of the defendant’s character or record and
any of the circumstances of the offense that the defendant
proffers as a basis for a sentence less than death.” (emphasis
and footnote omitted)).

I write separately, however, because I disagree with the
majority’s reliance on Tennard v. Dretke, 542 U.S. 274,
284-87 (2004), and Smith v. Texas, 543 U.S. 37, 45 (2004),
as “clearly established Federal law” relevant to analyzing the
state court’s decision under AEDPA. The Supreme Court has
made clear that “ ‘clearly established Federal law’ under
[AEDPA] is the governing legal principle or principles set
forth by the Supreme Court at the time the state court renders
its decision.” Lockyer, 538 U.S. at 71-72 (emphasis added);
see also Murdoch v. Castro, 609 F.3d 983, 990 (9th Cir.
2010) (en banc) (“The Supreme Court has restricted ‘clearly
established Federal law’ under § 2254(d)(1) to ‘the holdings,
as opposed to the dicta, of [the Supreme] Court’s decisions as
of the time of the relevant state-court decision.’ ” (internal
quotation marks omitted) (emphasis added) (quoting Carey v.
Musladin, 549 U.S. 70, 74 (2006)). As such, a federal court
reviewing a state court’s decision under AEDPA must con-
sider only those Supreme Court precedents that were available
to the state court at the time it conducted its review. See Wil-
liams v. Taylor, 529 U.S. 362, 390, 412 (2000). We cannot
fault the state court for failing to apply a precedent that did
not come into existence until after its consideration of a peti-
tioner’s case. See id.

Here, the state supreme court rendered its decision on Sep-
tember 26, 1995. Williams, 904 P.2d 437. Therefore, at the
time of its decision, the state supreme court had the benefit of
the Supreme Court’s holdings in Lockett, 438 U.S. 586, and
17770 WILLIAMS v. RYAN
Eddings, 455 U.S. 104, which were issued in 1978 and 1982,
respectively. Those cases constitute “clearly established Fed-
eral law” under AEDPA. See § 2254(d)(1); Lockyer, 538 U.S.
at 71-72. By contrast, the state supreme court did not have the
benefit of Smith, 543 U.S. 37, and Tennard, 542 U.S. 274,
both of which were decided in 2004, almost a decade after the
state court reviewed Williams’s claim. Smith and Tennard are
therefore not “clearly established Federal law,” and the state
court’s decision cannot be judged against the principles
announced in those cases. See Murdoch, 609 F.3d at 990.

The majority’s reasoning that “Tennard and Smith are
retroactively applicable” to Williams’s claim, Maj. Op. at
17749, is beside the point. The issue is whether those cases
are “clearly established” Supreme Court precedents under
AEDPA, § 2254(d)(1); whether they announced retroactively
applicable principles poses an entirely different question,
which is not raised here, cf. Schad v. Ryan, 606 F.3d 1022,
1045 (9th Cir. 2010). See Williams, 529 U.S. at 412 (explain-
ing that whether a Supreme Court precedent is retroactively
applicable to a defendant’s claim poses a different question
than whether the precedent is “clearly established” for
AEDPA purposes). Smith and Tennard are relevant, at most,
because they reiterate the rule announced in Eddings and
Lockett. See Styers v. Schriro, 547 F.3d 1026, 1035 (9th Cir.
2008) (per curiam) (citing Smith for the principle articulated
in Eddings). But beyond this limited applicability, Smith and
Tennard are not and cannot themselves be considered “clearly
established Federal law” for purposes of this court’s analysis
of Williams’s claim.

III

The majority erroneously remands to the district court for
an in-court evidentiary hearing on matters not relevant to
deciding Williams’s Brady claim. Not only is an in-court evi-
dentiary hearing not warranted here, but it is a form of relief
that Williams did not properly request before this court, and
 WILLIAMS v. RYAN 17771
expressly disavowed before the district court. In my view, the
government’s failure to disclose to the defense credible infor-
mation concerning an alternative perpetrator to the murder
constituted a Brady violation with respect to Williams’s sen-
tence, and Williams’s writ should be granted as to his punish-
ment. I therefore respectfully dissent from the majority’s
treatment of Williams’s Brady claim. Except for the issues
identified above, I join my colleagues’ decision as to the
remainder of Williams’s claims.