Lopez v. Ryan

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SAMUEL VILLEGAS LOPEZ, 
Petitioner-Appellant, No. 08-99021
v. D.C. No.
CHARLES L. RYAN,* Director,  2:98-CV-00072-
Arizona Department of SMM
Corrections, OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, District Judge, Presiding

Argued and Submitted
August 11, 2010—San Francisco, California

Filed January 20, 2011

Before: Susan P. Graber, M. Margaret McKeown, and
Consuelo M. Callahan, Circuit Judges.

Opinion by Judge McKeown

*Charles L. Ryan is substituted for his predecessor Dora B. Schriro as
Director of the Arizona Department of Corrections. See Fed. R. App. P.
43(c)(2).

1167
 LOPEZ v. RYAN 1171

COUNSEL

Kelley J. Henry, Assistant Federal Public Defender, Capital
Habeas Unit, Nashville, Tennessee; Denise Irene Young, Tus-
con, Arizona, for the petitioner-appellant.

Susanne Bartlett Blomo, Assistant Attorney General, and
Kent Ernest Cattani, Chief Counsel, Capital Litigation Sec-
tion, Arizona Attorney General’s Office, Phoenix, Arizona,
for the respondent-appellee.
1172 LOPEZ v. RYAN
OPINION

McKEOWN, Circuit Judge:

We consider here a challenge to the denial of habeas relief
from a death sentence. Samuel Villegas Lopez, an Arizona
state prisoner, appeals the district court’s denial of his petition
for a writ of habeas corpus challenging his capital sentence
for first-degree murder. Lopez argues that, in violation of his
Eighth and Fourteenth Amendment rights, he was denied an
individualized sentencing determination because of then-
binding Arizona law requiring that mitigating evidence be
causally related to the crime; Lopez also argues that his attor-
ney at his resentencing rendered ineffective assistance of
counsel by failing to furnish his psychiatric expert with eye-
witness testimony and background information necessary to
an assessment of pathological intoxication, “a condition, quite
rare, in which an individual exhibits sudden and unpredictable
behavior very shortly after ingesting a very small amount of
alcohol.” State v. Lopez (“Lopez II”), 857 P.2d 1261, 1267
(Ariz. 1993). Finally, Lopez argues that, in violation of the
Fourteenth Amendment’s Due Process Clause, the govern-
ment suppressed exculpatory evidence regarding an unrelated
sexual assault arrest. See Brady v. Maryland, 373 U.S. 83, 87
(1963).

The record belies Lopez’s arguments. The sentencing court
expressly indicated that it considered all the mitigating evi-
dence at Lopez’s sentencing proceedings, and the Arizona
Supreme Court independently reviewed the record on appeal.
Id. at 1264-71. There is no basis to presume that the state
court imposed a causal nexus requirement sub silentio.
Although Arizona has a checkered past on this issue, the Ari-
zona courts did not uniformly impose a causation requirement
in capital sentencing cases during the time period in question.
The state court examined all the mitigating evidence and
found that it did not warrant leniency.
 LOPEZ v. RYAN 1173
Lopez’s ineffective assistance of counsel claim fails as
well. Even assuming the district court erred in addressing pro-
cedural default sua sponte, Lopez is independently barred
from seeking relief through his expanded allegations of inef-
fective assistance of counsel because he did not develop the
factual basis for this claim in state court. See 28 U.S.C.
§ 2254(e)(2). Although Lopez raised in state court his nar-
rower claim that counsel failed to provide his expert with eye-
witness testimony, he cannot show that counsel’s failure
caused him prejudice. The trial court found the murder espe-
cially heinous, cruel, or depraved, and underscored that he
had never seen a case “as bad as this one.” There is no “rea-
sonable probability” that the duplicative testimony cited by
Lopez would have changed the sentence.

Lopez’s Brady claim is also without merit. The information
in the undisclosed note was not “material” for Brady pur-
poses. The note included legal opinions, which are not cov-
ered by Brady in the first instance, and facts cumulative of
information available in previously released police reports.
Lopez also cannot demonstrate that had the note been prop-
erly disclosed, the result of the sentencing proceeding would
have been different. Consequently, under the deference owed
to the state court under the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110
Stat. 1214, we affirm the decision of the district court.

BACKGROUND

In 1987, Lopez was convicted of first-degree murder, two
counts of sexual assault, kidnapping, and burglary for the rape
and murder of a fifty-nine-year-old woman, Estefana Holmes.1
The trial court sentenced him to death on the basis of two
1
The facts of the crime, which are brutal, are summarized by the Ari-
zona Supreme Court at State v. Lopez, 786 P.2d 959, 961-62 (Ariz. 1990),
and Lopez II, 857 P.2d at 1263-64. Because this appeal does not turn on
these facts, we do not restate them here.
1174 LOPEZ v. RYAN
aggravating circumstances: a prior felony conviction “involv-
ing the use or threat of violence on another person,” Ariz.
Rev. Stat. § 13-703(F)(2) (1992), and the commission of an
especially heinous, cruel, or depraved murder, id. § 13-
703(F)(6) (1992); see also State v. Lopez (“Lopez I”), 786
P.2d 959, 962 (Ariz. 1990). The Arizona Supreme Court
affirmed the convictions, but held that Lopez’s prior convic-
tion for resisting arrest did not qualify as a felony offense
under Arizona Revised Statutes § 13-703(F)(2) (1992). The
court accordingly remanded for resentencing on the murder
count. Lopez I, 786 P.2d at 965, 967.

Lopez’s resentencing was held in 1990. The trial court
again sentenced Lopez to death, finding that the murder was
committed in an especially cruel, heinous, or depraved man-
ner and that no mitigating circumstances were sufficient to
warrant leniency. Lopez II, 857 P.2d at 1264. After an inde-
pendent review of the record, the Arizona Supreme Court
affirmed. Id. at 1271.

Lopez petitioned for post-conviction relief. The trial court
held that “no material issue of fact or law exist[ed] which
would be served by any further proceedings” and dismissed
the petition. With respect to Lopez’s claims of ineffective
assistance of counsel, the court found that Lopez failed to
show that his counsel’s “performance fell below prevailing
professional norms” and that there was no “reasonable proba-
bility that the result of the trial or sentencing procedures
would have been different [but for] counsel’s alleged ineffec-
tive assistance.” The Arizona Supreme Court summarily
denied Lopez’s petition for review.

Lopez then filed a petition for a writ of habeas corpus in
federal district court. The district court denied Lopez’s peti-
tion. In particular, the district court rejected claim 7 of
Lopez’s petition, which alleged that the trial judge failed to
consider mitigating evidence at sentencing due to Arizona law
impermissibly precluding consideration of such evidence
 LOPEZ v. RYAN 1175
absent a causal nexus to the crime. The district court also
found that portions of claim 1(C)—Lopez’s ineffective assis-
tance claim challenging counsel’s failure to prepare his psy-
chiatric expert at sentencing—substantially altered the claim
he had presented in his state post-conviction proceeding and
were therefore procedurally barred. The district court denied
the exhausted portion of claim 1(C) on the merits. The district
court also denied Lopez’s Brady claim as procedurally
defaulted because Lopez failed to present the issue in state
court. The district court held that even if the government’s
failure to disclose the information constituted cause to excuse
the procedural default, Lopez failed to establish that the note
was prejudicial.

ANALYSIS

Because Lopez filed his habeas petition in 1998, AEDPA
applies. We review de novo a district court’s denial of a
§ 2254 habeas corpus petition. Luna v. Cambra, 306 F.3d
954, 959, as amended, 311 F.3d 928 (9th Cir. 2002). In con-
ducting review of a state court decision, we “look to the last
reasoned state-court decision.” Van Lynn v. Farmon, 347 F.3d
735, 738 (9th Cir. 2003). Under AEDPA, courts may grant
habeas relief only if the state court’s decision was “contrary
to, or involved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court.” 28
U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 407-
09 (2000). This is a “highly deferential standard for evaluat-
ing state-court rulings,” Lindh v. Murphy, 521 U.S. 320, 333
n.7 (1997), which “demands that state-court decisions be
given the benefit of the doubt,” Woodford v. Visciotti, 537
U.S. 19, 24 (2002) (per curiam). In addition, a petitioner may
be entitled to relief if the state court’s factual determination
rested on an unreasonable evidentiary foundation. 28 U.S.C.
§ 2254(d)(2). However, state court findings of fact are pre-
sumed correct unless rebutted by clear and convincing evi-
dence. Id. § 2254(e)(1).
1176 LOPEZ v. RYAN
I. WHETHER LOPEZ WAS DENIED AN INDIVIDUALIZED
SENTENCING DETERMINATION (CLAIM 7)

We begin with Lopez’s claim that he was denied an indi-
vidualized sentencing determination because the state court
ignored relevant mitigating evidence. As a preliminary matter,
we note that the trial judge—at both Lopez’s original sentenc-
ing in 1987 and resentencing in 1990—expressly stated that
he considered all the mitigating evidence and found that it did
not warrant leniency. The Arizona Supreme Court also
affirmed the sentencing court’s analysis after an independent
review of the record. Lopez I, 786 P.2d at 966; Lopez II, 857
P.2d at 1264-68, 1270-71. Nonetheless, Lopez argues that, at
the time of his sentencing, Arizona law unconstitutionally
barred consideration of mitigating evidence that was not caus-
ally related to the crime. Because the state court presumably
adhered to this rule, Lopez argues, we should infer that it did
not consider all the mitigating evidence and thus denied him
an individualized sentencing in violation of his Eighth and
Fourteenth Amendment rights. See Lockett v. Ohio, 438 U.S.
586, 608 (1978) (holding that Eighth and Fourteenth Amend-
ments require the individualized consideration of all mitigat-
ing factors in capital cases); Tennard v. Dretke, 542 U.S. 274,
287 (2004) (same).

[1] Lopez’s claim is at odds with the law and the evidence.
As we explained in Schad v. Ryan, “[a]bsent a clear indication
in the record that the state court applied the wrong standard,
we cannot assume the courts violated . . . constitutional man-
dates.” 606 F.3d 1022, 1047 (9th Cir. 2010) (per curiam),
petition for cert. filed, 79 U.S.L.W. 3129 (U.S. Aug. 27,
2010) (No. 10-305). See also Bell v. Cone, 543 U.S. 447, 455
(2005) (per curiam) (explaining that “[f]ederal courts are not
free to presume that a state court did not comply with consti-
tutional dictates on the basis of nothing more than a lack of
citation”). Here, there is no indication that the state court
applied an impermissible requirement of a causal nexus
between mitigating evidence and the crime. Indeed, the state
 LOPEZ v. RYAN 1177
court said the opposite—i.e., that it considered all the mitigat-
ing evidence on an independent review of the record and
found that it did not warrant the exercise of leniency. As the
Arizona Supreme Court forcefully stated:

The trial judge in this case was not misled. . . . In his
concluding portion of the special verdict he reiter-
ated that “the prosecution and the defendant have
been permitted to rebut any information received at
the hearing, including information presented at the
trial, and were given fair opportunity to present
argument as to the adequacy of the information to
establish the existence . . . of any mitigating circum-
stances whether listed in A.R.S. § 13-703(G) or not.”
(emphasis added.)

Lopez II, 857 P.2d at 1270.

Contrary to Lopez’s argument, we have no reason to pre-
sume that a tacit causation rule underpinned the state court’s
decision. Our recent decision in Schad makes this clear. In
Schad, the petitioner similarly argued that, contrary to the
Supreme Court’s dictates in Lockett and Tennard, “the [Ari-
zona] state courts did not consider the evidence of his trou-
bled childhood because they unconstitutionally required a
‘nexus’ between his childhood abuse and his commission of
[the] murder.” 606 F.3d at 1045. Reviewing Arizona case law,
we explained that, “[b]efore Tennard was decided, Arizona
courts recognized a nexus test, similar to that rejected in Ten-
nard, to preclude consideration of evidence of childhood
abuse unless the abuse bore a causal connection to the crime
of conviction.” Id. at 1045-46. After Tennard, the Arizona
Supreme Court “clarified that the nexus test affects only the
weight of mitigating evidence, not its admissibility.” Id. at
1046 (citing State v. Newell, 132 P.3d 833, 849 (Ariz. 2006)).2
2
In his opening brief, Lopez argues that the Supreme Court’s decision
in Ring v. Arizona, 536 U.S. 584 (2002), marks the watershed in the Ari-
1178 LOPEZ v. RYAN
However, the fact that the Arizona courts clearly did, at times,
employ (or “recognize[ ]”) a causal nexus requirement does
not mean that they always did so. Indeed, in Schad itself, we
concluded that the Arizona courts did not apply a causation
requirement when considering the defendant’s mitigating evi-
dence even though he was sentenced to death before Tennard
was decided. Id. at 1046-47.

[2] Our review of the case law confirms Arizona’s unset-
tled past with respect to this issue. Some cases decided prior
to Tennard applied a causal nexus requirement in an imper-
missible manner.3 Other cases, however, properly looked to
causal nexus only as a factor in determining the weight or sig-
nificance of mitigating evidence.4 See Eddings v. Oklahoma,
455 U.S. 104, 114-15 (1982) (holding that “[t]he sentencer,
and the Court of Criminal Appeals on review, may determine
the weight to be given relevant mitigating evidence”). Indeed,
in several cases, the Arizona Supreme Court expressly took
mitigating evidence into consideration when reducing a death
sentence to life, regardless of any causal nexus to the crime.5

zona courts’ treatment of mitigating evidence. However, Ring has no bear-
ing on whether Arizona courts applied an impermissible causation
requirement in capital sentencing cases, and Lopez understandably backed
away from this position in his reply brief.
3
See, e.g., Styers v. Schriro, 547 F.3d 1026, 1035 (9th Cir. 2008) (per
curiam), cert. denied, 130 S. Ct. 379 (2009); State v. Hoskins, 14 P.3d 997,
1021-22 (Ariz. 2000); State v. Kayer, 984 P.2d 31, 46 (Ariz. 1999); State
v. Sharp, 973 P.2d 1171,1182 (Ariz. 1999); State v. Rienhardt, 951 P.2d
454, 466-67 (Ariz. 1997); State v. Murray, 906 P.2d 542, 573 (Ariz.
1995); State v. Walden, 905 P.2d 974, 999 (Ariz. 1995); State v. Ross, 886
P.2d 1354, 1363 (Ariz. 1994).
4
See, e.g., State v. Bocharski, 189 P.3d 403, 426 (Ariz. 2008); State v.
Pandeli, 161 P.3d 557, 575 (Ariz. 2007); State v. Newell, 132 P.3d 833,
849 (Ariz. 2006); State v. Djerf, 959 P.2d 1274, 1289 (Ariz. 1998); State
v. Mann, 934 P.2d 784, 795 (Ariz. 1997); State v. Towery, 920 P.2d 290,
310-11 (Ariz. 1996); State v. Medrano, 914 P.2d 225, 229 (Ariz. 1996).
5
See, e.g., State v. Trostle, 951 P.2d 869, 888 (Ariz. 1997) (reducing
sentence in light of various mitigating factors, including abusive child-
 LOPEZ v. RYAN 1179
[3] In light of this backdrop, which highlights a range of
treatment of the nexus issue, there is no reason to infer uncon-
stitutional reasoning from judicial silence. Rather, we must
look to what the record actually says. See Schad, 606 F.3d at
1046-47. Because the state court made clear that it considered
all the mitigating evidence and found it wanting, Lopez’s
claim fails.

II. INEFFECTIVE ASSISTANCE OF COUNSEL (CLAIM 1C)

A. SECTION 2254(e)(2)

We next turn to Lopez’s ineffective assistance claim. At his
resentencing in 1990, Lopez unsuccessfully sought to estab-
lish a mitigating factor of pathological intoxication based on
the evaluation of his psychiatric expert, Dr. Otto Bendheim.
Lopez attributes this failure to ineffective assistance of coun-
sel. In his petition for post-conviction relief (“PCR petition”),
Lopez specifically complained that counsel failed to provide
Dr. Bendheim with the pretrial statements and trial testimony
of Pauline Rodriguez and Yodilia Sabori describing his
behavior on the night of the murder. This omission constituted
ineffective assistance, Lopez argued, because Rodriguez and
Sabori’s statements were “stronger evidence of pathological
intoxication than any items previously submitted to Dr. Bend-
heim.” The trial court declined to hold an evidentiary hearing
and dismissed the petition. Lopez raised the same claim in his
petition for review in the Arizona Supreme Court, which also
ordered dismissal.

hood); State v. Rockwell, 775 P.2d 1069, 1079 (Ariz. 1989) (concluding
that “defendant’s character and background, together with his age at the
time of the murder and the unique circumstances of his conviction, cause
us to conclude that a sentence of death is inappropriate”); Bocharski, 189
P.3d at 426 (reducing sentence to life, in part, because of defendant’s diffi-
cult family background).
1180 LOPEZ v. RYAN
Lopez went on to broaden his ineffective assistance claim
in his amended federal habeas petition. Coupled with his
claim regarding the two witnesses, Lopez newly alleged that
counsel failed to furnish Dr. Bendheim with a broad range of
biographical data and family and social history that were nec-
essary for a proper diagnosis. This information included the
abandonment of Lopez’s family by his father, his family’s
extreme poverty, Lopez’s history of substance abuse and
exposure to toxic substances, and his low education level.
Lopez argued that an investigation into his personal history
was necessary for Dr. Bendheim to establish a base line for
his cognitive functioning, compare his functioning when
intoxicated with the base line, determine if intoxication exac-
erbated any underlying psychiatric problems, assess him for
any addictive disease, determine any neurologic deficits and
the effects of intoxication on such deficits, and evaluate any
other influences on his behavior or thought processes during
the murder.6

The state initially conceded that Lopez’s ineffective assis-
tance claim was “properly exhausted.” Nearly eight years
later, however, the state sought to retract its concession, con-
tending that Lopez’s ineffective assistance claim went “far
beyond” what was presented to the state court. The district
court agreed with the state and dismissed claim 1C as proce-
durally defaulted.

The parties strongly contest whether the state waived pro-
cedural default and whether the district court erred in reaching
this issue sua sponte. We need not and do not address this
issue, however, because we affirm the dismissal of Lopez’s
claim on an alternate ground. Even assuming that the district
6
Lopez denies that he broadened his claim in federal court. Rather, he
argues that he fairly presented his claim to state court by alleging that
counsel failed to provide Dr. Bendheim “all of the obviously relevant
information” that was “necessary . . . to render a complete diagnosis.” This
argument fails as it is clear specifically from the face of the PCR petition
that, by “relevant evidence,” Lopez meant the pretrial statements and trial
testimony of Rodriguez and Sabori.
 LOPEZ v. RYAN 1181
court should not have reached the issue of procedural default,
Lopez failed to present any of the evidence in support of his
expanded claim in state court. Thus, he is separately barred
from seeking relief under 28 U.S.C. § 2254(e)(2).

[4] Section 2254(e)(2) imposes a high bar on expanding
the record to include evidence that was not presented in state
court. The section provides:

If the applicant has failed to develop the factual basis
of a claim in State court proceedings, the court shall
not hold an evidentiary hearing on the claim unless
the applicant shows that—

(A) the claim relies on—

(i) a new rule of constitutional law, made
retroactive to cases on collateral review by
the Supreme Court, that was previously
unavailable; or

(ii) a factual predicate that could not
have been previously discovered through
the exercise of due diligence; and

(B) the facts underlying the claim would be
sufficient to establish by clear and convinc-
ing evidence that but for constitutional
error, no reasonable factfinder would have
found the applicant guilty of the underlying
offense.

28 U.S.C. § 2254(e)(2). These “same restrictions apply a for-
tiori when a prisoner seeks relief based on new evidence with-
out an evidentiary hearing.” Holland v. Jackson, 542 U.S.
649, 653 (2004) (per curiam); accord Cooper-Smith v. Pal-
mateer, 397 F.3d 1236, 1241 (9th Cir. 2005). The parties here
chiefly dispute whether the statute’s trigger—namely, the
1182 LOPEZ v. RYAN
petitioner’s “fail[ure] to develop the factual basis of a claim
in State court proceedings”—applies to Lopez.7

A petitioner “fail[s] to develop the factual basis of a claim
in State court proceedings” under the opening clause of
§ 2254(e)(2) where “there is lack of diligence, or some greater
fault, attributable to the prisoner or the prisoner’s counsel.”
Williams, 529 U.S. at 432. Diligence “depends upon whether
the prisoner made a reasonable attempt, in light of the infor-
mation available at the time, to investigate and pursue claims
in state court; it does not depend . . . upon whether those
efforts could have been successful.” Id. at 435.

[5] Lopez was not diligent in developing his claim. In his
post-conviction proceedings, Lopez did not allege that his
attorney at sentencing was ineffective in failing to investigate
Lopez’s personal history and to furnish Dr. Bendheim with
those facts, but rather complained only that counsel failed to
provide the doctor with the statements and testimony of
Rodriguez and Sabori. The problem, then, is not simply that
Lopez failed to develop the factual underpinnings of his claim
—Lopez failed to present this claim altogether.

[6] Although state law required Lopez to attach
“[a]ffidavits, records, or other evidence currently available to
[him] supporting the allegations” to his PCR petition, Ariz. R.
Crim. P. 32.5, Lopez submitted none of the contested evi-
dence regarding his childhood, mental health, or family and
social history. Rather, consistent with his narrow ineffective
assistance claim, the only evidence that Lopez attached to his
PCR petition relating to claim 1C consisted of the pretrial
interviews of Rodriguez and Sabori, and an affidavit of Dr.
Bendheim attesting that these “new materials [made his] ear-
lier diagnosis of pathological intoxication more probable than
7
Lopez argues that the state waived this argument by failing to raise it
in district court. However, in its merits brief to the district court, the state
expressly argued that Lopez did not satisfy § 2254(e)(2).
 LOPEZ v. RYAN 1183
previously expressed.” Notably, Lopez does not contend that
he lacked access to the information from his family members
regarding family history even though he could presumably
obtain it without court order and with minimal expense. See
Dowthitt v. Johnson, 230 F.3d 733, 758 (5th Cir. 2000) (hold-
ing that the petitioner was not diligent where he failed to pres-
ent affidavits from family members and did not show that
they could not be obtained absent an order for discovery or a
hearing). Because Lopez was not diligent in presenting the
new evidence at issue, no evidentiary hearing is required. Sec-
tion 2254(e)(2) applies.8 In addition, Lopez cannot meet the
requirements of § 2254(e)(2)(A)—that is, show that he makes
a claim based on a new, retroactively applicable rule of con-
stitutional law or “a factual predicate that could not have been
previously discovered through the exercise of due diligence.”
Thus, he is barred from seeking relief. See Cooper-Smith, 397
F.3d at 1241-42.

B. ORIGINAL INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM

[7] Because Lopez cannot rely on evidence that he failed
to present in state court, we will only determine whether
Lopez established his original ineffective assistance claim—
namely, his claim that counsel performed deficiently and prej-
udicially by failing to furnish Dr. Bendheim with the state-
ments and testimony of Rodriguez and Sabori. To prevail on
an ineffective assistance claim, Lopez must show that coun-
sel’s performance was objectively deficient and that the defi-
cient performance caused him prejudice. Strickland v.
Washington, 466 U.S. 668, 687 (1984); see also Williams, 529
8
Lopez’s claims that he was diligent in his state proceedings are
unavailing. Lopez argues that the new evidence at issue merely “supple-
ment[s] the facts supporting the claim [he] made in state court and would
have been uncovered had the state court granted an evidentiary hearing.”
But given the narrow nature of his ineffective assistance claim, the state
court was justified in finding that “no material issue of fact or law exists
which would be served by any further proceedings” and dismissing his
petition without a hearing.
1184 LOPEZ v. RYAN
U.S. at 391 (holding that Strickland is the “clearly estab-
lished” federal law governing habeas claims of ineffective-
ness of counsel under AEDPA). We “need not determine
whether counsel’s performance was deficient before examin-
ing the prejudice suffered by the defendant as a result of the
alleged deficiencies.” Rather, “[i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prej-
udice . . . , that course should be followed.” Strickland, 466
U.S. at 697.

To prepare his evaluation for the 1987 sentencing, Dr.
Bendheim interviewed Lopez and reviewed police reports
regarding the murder; prior charges and arrests; a statement
by Raymond Hernandez, Pauline Rodriguez’s husband; and
descriptions of the crime scene. On this basis, Dr. Bendheim
“hypothesi[zed]” that Lopez suffered from pathological intox-
ication, which he described as a condition that causes individ-
uals who consume small amounts of alcohol to react in an
“unexpected, unpredictable” manner that is “characterized
frequently by extreme violence.” In particular, Dr. Bendheim
noted a statement by Hernandez that Lopez was “mild and
meek” when sober but “very mean” when drunk, along with
information from defense counsel that other character wit-
nesses described similar behavior patterns on Lopez’s part.
Although Lopez told Dr. Bendheim that he was not intoxi-
cated on the night of the murder, the doctor did not believe
him because other evidence indicated to the contrary.

[8] At resentencing, Lopez’s new counsel provided Dr.
Bendheim with additional criminal records detailing other
incidents in which Lopez had engaged in criminal and violent
behavior—in particular, the pre-sentence investigation relat-
ing to his conviction for resisting arrest and a police report
regarding an alleged sexual assault in 1986. Dr. Bendheim
found that this new information corroborated his initial
assessment. Based on the totality of the evidence, the doctor
“speculate[d] that with a great preponderance of probability[,]
not certainty, but probability” that but for Lopez’s intoxica-
 LOPEZ v. RYAN 1185
tion on the night of the crime, “the murder would not have
occurred.” However, Dr. Bendheim underlined that he could
offer only a “tentative diagnosis” of pathological intoxication,
not a diagnosis with “medical certainty,” and that his diagno-
sis was “to a very large degree . . . speculative.” This uncer-
tainty was due to the fact that he was not present at the time
of the crime to observe Lopez’s behavior and that Lopez him-
self “could not confirm that he undergoes a significant per-
sonality change when intoxicated.”

[9] In rebuttal, the state presented the testimony of Dr.
Robert Dean, a psychiatrist and expert on alcoholism. Dr.
Dean never met Lopez and had experienced only one encoun-
ter with a person presumed to suffer from pathological intoxi-
cation during his residency. However, Dr. Dean had read
considerable amounts of material on the disorder and
reviewed the documents on which Dr. Bendheim relied in
order to assess Dr. Bendheim’s evaluation.

[10] Dr. Dean rejected Dr. Bendheim’s diagnosis. Dr.
Dean stated that pathological intoxication was uncommon,
and he was not aware of any cases in his twenty-five years of
psychiatric practice. He also noted that Lopez lacked the pre-
disposing conditions to the disorder, such as advanced age
and organic pathology in the brain. Focusing on a police
report describing Lopez’s behavior in the alleged sexual
assault of Cecilia Rodriguez,9 Dr. Dean concluded that Lopez
did not suffer a consistent, pathological response to minimal
quantities of alcohol and that he did not show a pathological
response to alcohol within the window of time that is typical
of the disorder. Dr. Dean also specifically reviewed the pre-
trial statements and trial testimony of Rodriguez and Sabori
and testified that those materials did not change his opinion.
9
Cecilia Rodriguez is a different person than Pauline Rodriguez, whom
we refer to throughout this opinion as “Rodriguez.”
1186 LOPEZ v. RYAN
At the resentencing, the judge found that Lopez failed to
show pathological intoxication as a mitigating factor. In the
court’s view, Dr. Bendheim’s testimony did not rise to any
level of medical certainty, but rather rested upon a ‘hypothe-
sis’ or ‘speculation.’ ” In addition, “[t]he state presented evi-
dence to rebut the ‘hypothesis’ and ‘speculation.’ ” Lopez
“failed to meet his burden of proof of establishing this miti-
gating factor by a preponderance of the evidence,” and thus
the “mitigating circumstance [did] not exist.” The Arizona
Supreme Court affirmed after an independent review of the
record. Lopez II, 857 P.2d at 1267-68.

In his post-conviction proceedings, Lopez argued that sen-
tencing counsel was ineffective for failing to furnish Dr.
Bendheim with the eyewitness statements and testimony of
Rodriguez and Sabori regarding Lopez’s behavior on the
night of the murder so that the doctor could make a more
definitive diagnosis. Sabori attested in particular that she met
Lopez in a neighborhood park on the night of the murder and
talked with him from around 8 p.m. to 11:15 p.m. Sabori then
went home to Rodriguez’s apartment, where she was staying.
About ten or fifteen minutes later, Lopez appeared at her front
door drunk. Lopez asked Sabori if she got high, and she told
him no. At that point, Lopez disappeared down an alley for
a few minutes; when he returned he was shaking, unsteady,
and belligerent. When Sabori tried to go into the house, Lopez
closed the door on her hand to prevent her from leaving. Ulti-
mately, with the help of Rodriguez, Sabori broke free and
went inside.

Rodriguez generally corroborated Sabori’s statement.
Rodriguez “believe[d] [Lopez] was on something” that night
and observed that “he wasn’t[,] you know[,] hi[m]self.”
Rodriguez stated that Lopez came to the house around three
times a week when he was drunk. When Lopez was sober, he
was “quiet” and “real nice,” but he would “get[ ] really heavy
on people” when drunk. The evening of the murder he was
belligerent and yelled obscenities at Rodriguez.
 LOPEZ v. RYAN 1187
In his new affidavit submitted with the PCR petition, Dr.
Bendheim stated that, in light of the statements of Rodriquez
and Sabori, he could “now make a more certain diagnosis of
pathological intoxication.” Nonetheless, the state court denied
Lopez’s ineffective assistance claim, finding that there was no
“reasonable probability that the result of the . . . sentencing
procedures would have been different because of [this]
alleged ineffective assistance.”

[11] The state court’s holding does not constitute an unrea-
sonable application of Strickland. Lopez cannot show a “rea-
sonable probability that, absent the errors [Lopez alleges], the
sentencer . . . would have concluded that the balance of aggra-
vating and mitigating circumstances did not warrant death.”
Strickland, 466 U.S. at 695. Here, the statements of Rodriguez
and Sabori were largely duplicative of other information pro-
vided to Dr. Bendheim. For example, one of the documents
given to Dr. Bendheim for the 1987 sentencing proceeding
was a police report containing Rodriguez’s statements that
Lopez was “drunk or high” several hours before the murder,
and that he tried to force his way into her apartment. Lopez’s
counsel also provided Dr. Bendheim with the statement from
Raymond Hernandez that Lopez was “very mean” when
drunk and “mild and meek” when sober, and Lopez’s counsel
told Dr. Bendheim of other witnesses who claimed that Lopez
became “like another person when he drinks.” Lopez’s coun-
sel at the 1990 resentencing similarly provided Dr. Bendheim
with further evidence of Lopez’s violent behavior when
drunk, which served to corroborate Dr. Bendheim’s opinion.
Dr. Bendheim underlined, through his testimony at sentenc-
ing, that his assessment of Lopez was only “tentative,” lacked
“medical certainty,” and was “to a very large degree . . . spec-
ulative.” It is true that Dr. Bendheim later testified that, had
he reviewed the additional testimony of Rodriguez and
Sabori, his original diagnosis would have been “more proba-
ble” and “more certain.” But we are not convinced that his
“more probable” diagnosis would have changed the outcome
of the sentencing proceeding. The new evidence would have
1188 LOPEZ v. RYAN
done little to refute Dr. Dean’s contrary assessment that
Lopez did not suffer from pathological intoxication. As Dr.
Dean pointed out, pathological intoxication is an extremely
rare condition, Lopez did not exhibit any of the predisposing
factors, and the evidence from his criminal file indicated that
he did not react pathologically to alcohol or show reactions
within the typical time-frame after drinking. After Dr. Dean
examined Rodriguez and Sabori’s statements, he found noth-
ing in them to alter his opinion, and those statements were
otherwise available in the record for the court’s consideration.

[12] Finally, the sentencing court made a strong finding as
to the especially heinous, cruel, or depraved nature of the
murder, remarking that in his years on the bench he had
“never seen [a first-degree murder case] as bad as this one,”
and the Arizona Supreme Court affirmed in similarly forceful
terms. See Lopez II, 857 P.2d at 1264-66.

[13] Ultimately, the absence of Rodriguez and Sabori’s
testimony from Dr. Bendheim’s assessment did not affect the
balance of the aggravating and mitigating factors. Lopez has
not shown a “reasonable possibility” that, but for counsel’s
alleged errors, the sentencer would have concluded that Lopez
did not deserve a death sentence. See Strickland, 466 U.S. at
695.

III. SUPPRESSION OF BRADY MATERIAL (CLAIM 10)

As a final matter, we address Lopez’s Brady claim with
respect to an unrelated sexual assault.10 Less than a week after
Holmes’ death, Lopez was arrested for the sexual assault of
Cecilia Rodriguez. See supra p. 1185. Although Lopez’s trial
counsel received police reports documenting the incident, the
government failed to provide Lopez with a handwritten note
10
On September 16, 2010, we granted Lopez a certificate of appeala-
bility with respect to this claim and directed the government to file a
responsive brief.
 LOPEZ v. RYAN 1189
that was later discovered in a police file. The note, whose
author is unknown, opines that there was an insufficient fac-
tual basis to support a conviction of Lopez for the assault and
that the victim was not credible. Specifically, the note states
that there were “no findings by a physician indicating sexual
assault”; that the victim’s claims “were not corroborated by
[the] physician’s report”; and that the victim had a previous
consensual sexual relationship with Lopez. Lopez was never
charged with a crime as a result of the incident. However, the
note was not made available to Lopez until his habeas claims
were pending in federal court, long after the state court pro-
ceedings.

[14] Lopez, who introduced evidence of the sexual assault
to corroborate his pathological intoxication mitigation
defense, now claims that the note, which undermines the sex-
ual assault allegation, would have been favorable to his
defense. He argues that the government’s failure to disclose
the note violated his constitutional due process rights under
Brady, 373 U.S. at 87. The district court concluded that
because Lopez failed to present the issue in state court and no
state remedy remained available, the claim was “technically
exhausted but procedurally defaulted,” but that Lopez had
shown no prejudice to overcome the default. Lopez argues on
appeal that there is cause and prejudice to excuse the proce-
dural default and that habeas relief must be granted. We con-
clude that there was no constitutional violation under Brady;
it likewise follows that Lopez is unable to establish prejudice
to excuse the procedural default.

[15] Under Brady, the prosecution must disclose exculpa-
tory evidence to a defendant if it is “material” either to guilt
or to punishment. 373 U.S. at 87. However, “[f]ailure to dis-
close information only constitutes a Brady violation if the
requested information is ‘material’ to the defense.” Sanchez v.
United States, 50 F.3d 1448, 1454 (9th Cir. 1995). Materiality
rests on “a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would
1190 LOPEZ v. RYAN
have been different.” United States v. Bagley, 473 U.S. 667,
682 (1985).

The handwritten note fails the materiality test in several
respects. To begin, the note offers no new factual evidence.
“Evidence that is merely cumulative is not material.” United
States v. Strifler, 851 F.2d 1197, 1202 (9th Cir. 1988). The
note included underlying facts regarding the alleged sexual
assault and legal opinions of the unknown author. The facts
laid out in the note were merely cumulative of the facts con-
tained in the police reports, which were available to Lopez
and submitted by Lopez’s counsel at the 1990 resentencing.
Accordingly, this information was not “material” for Brady
purposes. See Barker v. Fleming, 423 F.3d 1085, 1099 (9th
Cir. 2005) (new evidence that “very nearly replicated evi-
dence already admitted” into evidence is not “material” under
Brady); United States v. Vgeri, 51 F.3d 876, 880 (9th Cir.
1995) (same). To the extent the note included legal opinions,
we have previously held that “a prosecutor’s opinions and
mental impressions of the case are not discoverable under
Brady unless they contain underlying exculpatory facts.”
Morris v. Ylst, 447 F.3d 735, 742 (9th Cir. 2006). Applying
the same rationale here, we conclude that the legal opinions
contained in the note do not constitute Brady material
required to be provided to Lopez.

[16] Lopez also fails to demonstrate that the note was “ma-
terial” in that “had the [note] been disclosed, the result of the
proceeding would have been different.” Bagley, 473 U.S. at
682. Lopez argues that the note provided “important exculpa-
tory evidence which would have rebutted non-statutory aggra-
vating evidence relied upon by the prosecution and considered
by the trial court as outlined above.” However, Arizona does
not recognize non-statutory aggravating evidence, see Ariz.
Rev. Stat. § 13-703(F), and there is no indication that the trial
court considered such evidence at Lopez’s sentencing. As
Lopez acknowledges, the trial court found only one statutory
aggravating factor— that Holmes’ murder was committed in
 LOPEZ v. RYAN 1191
a cruel, heinous, or depraved manner. Lopez II, 857 P.2d at
1264. Lopez identifies no evidence indicating that the trial
court considered the unrelated sexual assault in finding this
aggravating factor.

Nor has Lopez, who relied on the existence of the alleged
assault to corroborate his mitigation defense, demonstrated
how this exculpatory evidence as to the unrelated assault
would have influenced the state court’s findings as to mitiga-
tion. Indeed, to the extent that the note would have influenced
the sentencing proceeding, it would have undermined Lopez’s
foundation of pathological intoxication.

[17] We conclude that the handwritten note is not “materi-
al” for Brady purposes. The facts contained in the note were
cumulative of information previously available in the police
reports and Lopez has not remotely shown that “had the evi-
dence been disclosed, the result of the proceeding would have
been different.” Bagley, 473 U.S. at 682. Accordingly, the
district court appropriately denied relief on Lopez’s Brady
claim.

AFFIRMED.