Cary Williams v. Timothy Filson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CARY WALLACE WILLIAMS, No. 13-99002
Petitioner-Appellant,
D.C. No.
v. 2:98-cv-00056-
PMP-VCF
TIMOTHY FILSON, Warden; ADAM
PAUL LAXALT, Attorney General,
Respondents-Appellees.

Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding

CARY WALLACE WILLIAMS, No. 17-15768
Petitioner-Appellant,
D.C. No.
v. 2:98-cv-00056-
APG-VCF
TIMOTHY FILSON, Warden; ADAM
PAUL LAXALT, Attorney General,
Respondents-Appellees.

Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
2 WILLIAMS V. FILSON

CARY WALLACE WILLIAMS, No. 17-71510
Petitioner,

v. OPINION

TIMOTHY FILSON, Warden; ADAM
PAUL LAXALT, Attorney General of
the State of Nevada,
Respondents.

Application to File Second or Successive Petition
Under 28 U.S.C. § 2254

Argued and Submitted September 20, 2017
San Francisco, California

Filed November 9, 2018

Before: Marsha S. Berzon, Paul J. Watford,
and John B. Owens, Circuit Judges.

Opinion by Judge Watford
 WILLIAMS V. FILSON 3

SUMMARY*

Habeas Corpus / Death Penalty

The panel affirmed in part and reversed in part the district
court’s denial of Cary Williams’ first federal habeas corpus
petition challenging his Nevada murder conviction and death
sentence, and remanded for an evidentiary hearing on one of
Williams’ penalty-phase ineffective assistance of counsel
claims; affirmed the district court’s denial of his motion for
relief under Fed. R. Civ. P. 60(b); and denied Williams’
application to file a second or successive federal habeas
petition.

The panel held that Williams is entitled to equitable
tolling between the date of the one-year AEDPA deadline for
filing a federal habeas petition and the date he filed his
amended federal petition, and that all of the claims asserted
in the amended petition are therefore timely. Because
Williams is entitled to equitable tolling even if the claims
asserted in the original and amended opinions do not share a
common core of operative facts, the panel did not need to
decide whether the district court’s application of the relation-
back standard from Mayle v. Felix, 545 U.S. 644 (2005), is
correct. The panel remanded for further proceedings as to the
claims the district court dismissed based solely on the
assumed untimeliness of the amended petition.

Applying AEDPA deference, the panel held that the
district court did not abuse its discretion in denying an

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 WILLIAMS V. FILSON

evidentiary hearing on Williams’ claim that his trial counsel
failed to discover and present evidence that he suffers from
brain damage. Reviewing de novo, the panel held that the
district court did abuse its discretion in denying a hearing on
Williams’ claim that trial counsel unreasonably failed to
investigate and present substantial mitigating evidence
regarding his abusive and traumatic childhood.

The panel held that the district court did not err by
denying Williams’ request for an evidentiary hearing on his
claims that trial counsel rendered ineffective assistance
during the guilt phase by failing to prepare an adequate
defense and during the penalty phase by failing to retain a
medical expert who could rebut the state’s evidence that the
murder involved torture. The panel held that the district court
properly held that it could not consider documentary evidence
as to the merits of those claims because Williams did not
submit that evidence to the state courts in the manner
required under state law. The panel rejected Williams’
separate argument that he is entitled to have the documentary
evidence considered under the rule subsequently established
in Martinez v. Ryan, 566 U.S. 1 (2012). The panel concluded
that the evidence contained in the declarations at issue does
not place these claims in a significantly different and stronger
posture such that they must be deemed “new” claims not
previously presented to state courts.

The panel held that Williams’ constitutional challenges to
Nevada’s “avoid lawful arrest” aggravating circumstance,
Nev. Rev. Stat. § 200.033(5) (1981), lacked merit, even
reviewing the merits de novo. The panel rejected Williams’
contention that the aggravated circumstance is facially invalid
under the Eighth Amendment because it is too vague and
because it fails to adequately narrow the class of death-
 WILLIAMS V. FILSON 5

eligible defendants. The panel also rejected Williams’
contention that, as applied to him, the aggravating
circumstance violates the Ex Post Facto Clause and the
Fourteenth Amendment’s Due Process Clause because he
lacked adequate notice at the time he committed the offense
that § 200.033(5) could be applied to the facts of his crime.

The panel held that Nev. Rev. Stat. § 34.726, which
imposes a general one-year deadline for the filing of petitions
for post-conviction relief, is an independent and adequate
state procedural bar to federal review. The panel therefore
affirmed the district court’s dismissal of several of Williams’
claims as procedurally defaulted under that statute. Because
all of the claims asserted in Williams’ amended petition are
timely under AEDPA, the panel reversed the district court’s
dismissal of five ineffective-assistance claims and remanded
for the district court to determine in the first instance whether
Williams’ procedural default on those claims is excused
under Martinez.

The panel assumed without deciding that Williams’
motion under Rule 60(b) was not a disguised second or
successive petition. The panel wrote that Williams is not
entitled to relief because even if Hurst v. Florida, 136 S. Ct.
616 (2016), established the new rule Williams urges, that rule
would not apply retroactively in cases on collateral review.
The panel wrote that Williams is also not entitled to relief
because his Rule 60(b) motion rests on the incorrect premise
that the Nevada Supreme Court did not apply a beyond-a-
reasonable-doubt standard when it reweighed whether
aggravating factors outweighed a mitigating circumstance.

The panel denied Williams’ application to file a second or
successive petition based on Hurst.
6 WILLIAMS V. FILSON

COUNSEL

Michael Pescetta (argued), Randolph M. Fiedler, and Albert
Sieber, Assistant Federal Public Defenders; Rene L.
Valladares, Federal Public Defender; Office of the Federal
Public Defender, Las Vegas, Nevada; for Petitioner-
Appellant.

Victor-Hugo Schulze II (argued), Senior Attorney General;
Adam Paul Laxalt, Attorney General; Office of the Attorney
General, Las Vegas, Nevada; for Respondents-Appellees.

OPINION

WATFORD, Circuit Judge:

Cary Williams was sentenced to death for the murder of
Katherine Carlson in 1983. This is the appeal from the
district court’s denial of his first federal petition for a writ of
habeas corpus. In the main appeal, we address the three
issues on which the district court granted a certificate of
appealability, as well as two uncertified issues that Williams
raised in his opening brief. We affirm in part, reverse in part,
and remand for an evidentiary hearing on one of Williams’
penalty-phase ineffective assistance of counsel claims.

Williams has also filed a separate appeal from the district
court’s denial of his motion for relief under Rule 60(b) of the
Federal Rules of Civil Procedure. We affirm the denial of
Williams’ Rule 60(b) motion.
 WILLIAMS V. FILSON 7

I. Background

A. Conviction and Sentence

Many of the basic facts surrounding the murder of Ms.
Carlson are no longer subject to reasonable dispute. Williams
pleaded guilty to her murder during the guilt phase of the
trial, and during the penalty phase he took the stand and
described in detail how he committed the offense.

Williams grew up in the Los Angeles area but moved to
Reno, Nevada, in February 1982, when he was 18 years old,
both to escape the violence prevalent in his inner-city
neighborhood and to pursue his interest in becoming a
professional boxer. He moved in with his boxing coach, who
lived in a residential community called Horizon Hills.
Williams held a job as a maintenance worker in Horizon
Hills, a position he used to burglarize several homes in the
community while the owners were away during the day.

In June 1982, Ms. Carlson and her husband were a young
couple living in Horizon Hills a few houses down the street
from where Williams lived. Ms. Carlson worked as a nurse,
her husband as a firefighter. Ms. Carlson was eight months
pregnant at the time, expecting the couple’s first child.

On the night of June 27, 1982, Williams decided to
burglarize the Carlsons’ home. He thought they had left town
on vacation, as the camper he had seen them packing earlier
in the day was no longer parked outside their home. But Ms.
Carlson was home alone, asleep in her bedroom.

When Williams broke into the Carlsons’ home that night,
he saw a woman’s purse on the kitchen counter, which led
8 WILLIAMS V. FILSON

him to take a large butcher knife from a drawer in the kitchen.
He then walked through the house, room to room, looking for
things to steal. When he reached the master bedroom, he
turned on the lights and startled Ms. Carlson. She recognized
Williams and said, “Oh, my God, you’re the kid from down
the street.” According to Williams, Ms. Carlson then lunged
toward a bedside dresser, and a struggle between them ensued
as he tried to prevent her from reaching into one of the
drawers. Williams admitted stabbing Ms. Carlson to death
during the course of that struggle with the butcher knife he
had taken from the kitchen. An autopsy revealed that Ms.
Carlson suffered 38 stab wounds in all, three of which were
fatal. Her unborn child died due to lack of oxygen after Ms.
Carlson’s death.

After killing Ms. Carlson, Williams took money, jewelry,
a camera, and a .22 caliber pistol from her home.

The next day, Williams fled to Los Angeles by bus.
Within a week, police in Reno had obtained a warrant for
Williams’ arrest, tipped off by Williams’ efforts to pawn
some of the jewelry he stole from the Carlsons’ home.
Williams learned of the warrant, surrendered to authorities in
Los Angeles, and was eventually extradited to Reno. When
questioned by the police in Reno, Williams confessed to the
burglary and to having murdered Ms. Carlson during the
course of the burglary.

In August 1982, the State of Nevada charged Williams
with one count of murder for the death of Ms. Carlson, one
count of manslaughter for the death of her unborn child, and
one count of burglary. The case received widespread
publicity throughout Washoe County, where Reno is located.
The State sought the death penalty.
 WILLIAMS V. FILSON 9

Trial commenced in December 1982. On the first day of
jury selection, Williams pleaded guilty to the burglary charge.
A week later, after a jury had been empaneled and testimony
had begun, Williams pleaded guilty to the murder and
manslaughter charges as well. Under Nevada law at the time,
Williams’ guilty plea to capital murder meant that the penalty
phase of his trial would be held before a three-judge
sentencing panel rather than a jury. Williams’ trial counsel
believed she had a better chance of persuading judges rather
than jurors to spare Williams’ life, given the intense public
hostility to Williams in Washoe County at the time.

The penalty-phase hearing took place over three days in
January 1983. The State portrayed Williams as a depraved
individual whose criminal conduct escalated from a series of
home burglaries to “the most brutal, the most sadistic and
most merciless murder ever in the history of Washoe
County.” The State also focused attention on Williams’
victims, introducing a photograph of a visibly pregnant Ms.
Carlson two weeks before she was killed. Mr. Carlson
offered detailed and emotional testimony about discovering
his wife’s body after the murder. The State concluded by
calling a forensic pathologist who testified that there was “no
question this woman was tortured before she was murdered.”

Williams’ mitigation case centered on the testimony of
friends and relatives who described his redeeming qualities,
although several of the family members who testified seemed
to be unaware of his guilty plea or the details of the crime.
The maternal figures in Williams’ life described him as a
caring and dutiful child, and his younger sisters explained
how he had always cared for them. In addition to this
character evidence, Williams’ trial counsel pointed to
hardships in Williams’ life, including the death of his mother,
10 WILLIAMS V. FILSON

his being bounced around different homes and schools, and
his growing up in the dangerous environment of South-
Central Los Angeles. Williams also testified, recounting his
version of events and expressing remorse for what had
happened.

At the conclusion of the hearing, the three-judge panel
sentenced Williams to death. The panel found four statutory
aggravating circumstances: (1) the murder was committed
during the commission of a burglary; (2) the murder was
committed during the course of a robbery with the use of a
deadly weapon; (3) the murder was committed to avoid or
prevent Williams’ lawful arrest for the burglary; and (4) the
murder involved torture and depravity of mind. The panel
found one statutory mitigating circumstance: the fact that
Williams was only 19 at the time of the offense. The panel
concluded that the aggravating circumstances outweighed the
mitigating circumstances and that death was the appropriate
punishment.

B. Direct Appeal and State Post-Conviction Review

This case has a lengthy history in state court, spanning
almost 25 years. In addition to pursuing a direct appeal,
Williams filed a total of six petitions seeking post-conviction
relief in state court, the last of which the Nevada Supreme
Court denied in 2007. We provide only a brief overview of
those proceedings here.

Williams filed a direct appeal with the Nevada Supreme
Court shortly after he was sentenced to death in 1983. While
his direct appeal was pending, he filed his first state petition
for post-conviction relief, in which he alleged that his trial
counsel had rendered ineffective assistance in violation of the
 WILLIAMS V. FILSON 11

Sixth Amendment. The Nevada Supreme Court held
Williams’ direct appeal in abeyance while he litigated his
petition for post-conviction relief. The state trial court held
an evidentiary hearing on Williams’ ineffective assistance of
counsel claim in 1984, but ultimately denied relief. Williams
appealed that ruling to the Nevada Supreme Court. In 1987,
the Nevada Supreme Court affirmed Williams’ convictions
and sentence on direct appeal, and affirmed the denial of his
first petition for post-conviction relief. Williams v. State,
737 P.2d 508 (Nev. 1987).

A succession of five additional petitions for post-
conviction relief followed. The Nevada Supreme Court
affirmed the denial of Williams’ second and third petitions in
1988, holding that the claims raised were either procedurally
barred or barred by the law-of-the-case doctrine. In 1990, the
Nevada Supreme Court affirmed the denial of Williams’
fourth petition, again on procedural bar grounds. The state
trial court held an evidentiary hearing on Williams’ fifth
petition in 1995, but found none of the claims meritorious.
The Nevada Supreme Court upheld that ruling in 1997, again
relying on law-of-the-case and successiveness bars.

In 2003, Williams filed his sixth and final state petition
for post-conviction relief, which the Nevada Supreme Court
denied in 2006 on the basis of state-law timeliness and
successiveness bars. See Nev. Rev. Stat. §§ 34.726,
34.810(2). As to one of Williams’ claims, however, the court
held that good cause excused Williams’ procedural defaults.
Specifically, the court concluded that two of the four
aggravating circumstances found by the sentencing
panel—that the murder was committed during the
commission of a burglary and during the course of a
robbery—were rendered invalid under recently decided
12 WILLIAMS V. FILSON

Nevada Supreme Court authority, thus justifying Williams’
late presentation of the claim. But the court held that
Williams could not show prejudice because, even after
striking the two invalid aggravators, the remaining
aggravators outweighed the lone statutory mitigating
circumstance beyond a reasonable doubt. In 2007, the
Nevada Supreme Court denied Williams’ request for en banc
reconsideration of that ruling, with two justices dissenting.

C. Federal Habeas Corpus Proceedings

In January 1998, Williams initiated this action by filing a
pro se petition for a writ of habeas corpus in federal court.
The district court accepted the petition for filing in April
1998, following a delay in Williams’ payment of the filing
fee. Although a lawyer helped Williams prepare his pro se
petition, everyone understood that this petition would need to
be amended after Williams had been appointed federal habeas
counsel. Unlike most federal habeas petitioners, as a state
prisoner facing a sentence of death, Williams was statutorily
entitled to the appointment of counsel to represent him in his
federal habeas proceedings. See 18 U.S.C. § 3599(a)(2)
(formerly codified at 21 U.S.C. § 848(q)(4)(B)).

On April 17, 1998, the district court appointed counsel
from the Federal Public Defender’s Office to represent
Williams. Shortly thereafter, the court issued the first in a
series of scheduling orders governing discovery and the filing
of an amended petition, pursuant to what practitioners in the
District of Nevada refer to as the “George Memo.”

The George Memo established standardized procedures
for handling federal habeas corpus proceedings involving
state prisoners sentenced to death. First promulgated in 1992
 WILLIAMS V. FILSON 13

under the direction of then-Chief District Judge Lloyd
George, the George Memo divides capital habeas proceedings
into five discrete stages and provides sample orders that can
be issued at each stage. For example, upon the filing of the
initial petition, the George Memo calls for the district court
to appoint counsel and schedule an initial status conference.
At the initial conference, the district court sets a schedule
affording federal habeas counsel adequate time (typically six
months) to review the record and conduct all necessary
discovery. At the same time, the court sets a deadline for the
filing of an amended federal petition containing all claims
that the petitioner seeks to litigate, both exhausted and
unexhausted. Under the procedures outlined in the George
Memo, the federal petition will be held in abeyance, if
necessary, to allow the petitioner to complete the exhaustion
process in state court. Once the petitioner fully exhausts all
of the claims to be litigated, the federal habeas proceedings
will then be reopened to allow resolution of the claims on the
merits. The stated goal of these standardized procedures is to
reduce the delay and inefficiency caused when federal habeas
petitioners bounce back and forth between state and federal
court as they attempt to exhaust available state remedies.

The district court in this case followed the standardized
procedures spelled out in the George Memo. After
appointing counsel in mid-April 1998, the court set the initial
status conference for August 28, 1998. At the conclusion of
that hearing, the court issued a scheduling order granting
Williams’ counsel six months to review the record and
complete all discovery. The court set a deadline of May 14,
1999, for the filing of Williams’ amended petition, although
the parties recognized that the deadline might need to be
extended depending on how long it took the parties to resolve
any discovery-related issues.
14 WILLIAMS V. FILSON

As it turned out, discovery-related issues did arise, and at
Williams’ request the district court twice extended the
deadline for filing the amended petition. The State did not
oppose either extension. Williams filed his amended federal
petition on September 17, 1999, within the deadline
ultimately set by the court. He then filed a second amended
petition in May 2002, within the deadline stipulated by the
parties.

In May 2003, the district court granted Williams’ request
to hold his federal habeas proceedings in abeyance while he
litigated his sixth and final petition for state post-conviction
relief, the last step necessary to complete the exhaustion
process. After the Nevada Supreme Court affirmed the denial
of that petition in 2007, the district court granted Williams’
request to reopen his federal habeas proceedings, as
contemplated under the George Memo.

Williams filed a third amended federal habeas petition,
the operative petition in this case, in October 2007. Williams
raised 38 claims for relief and requested an evidentiary
hearing. In a series of orders entered between 2009 and 2012,
the district court denied Williams’ request for an evidentiary
hearing and eventually denied relief on all claims. The court
held that some of the claims were barred by the federal statute
of limitations, 28 U.S.C. § 2244(d), and that Williams was
not entitled to equitable tolling of the federal filing deadline.
The court concluded that many of Williams’ remaining
claims were procedurally defaulted because the Nevada
Supreme Court had determined that they were barred by the
statute of limitations set by state law, under Nevada Revised
Statutes § 34.726. As to the handful of claims that survived,
the district court denied relief on the merits.
 WILLIAMS V. FILSON 15

The district court granted a certificate of appealability as
to the issues we address below in sections II.A, II.C, and II.D.
As noted above, Williams raised a number of uncertified
issues in his opening brief, which under Ninth Circuit Rule
22.1(e), we treat as a request to expand the certificate of
appealability. We asked the State to respond to several of the
uncertified issues, and we now grant a certificate of
appealability as to the issues addressed in sections II.B and
II.E below.

II. Discussion

A. Equitable Tolling

The Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA) sets a one-year statute of limitations for filing
a federal petition for a writ of habeas corpus. 28 U.S.C.
§ 2244(d). It is undisputed in this case that the one-year
deadline for Williams ran until August 29, 1998. Thus, his
initial pro se federal petition, accepted for filing on April 15,
1998, was unquestionably timely. His amended petition, filed
on September 17, 1999, raised a significant number of new
claims not asserted in the original petition. That is not
surprising, given that the amended petition was prepared by
counsel with expertise in federal habeas proceedings after the
district court had afforded them time to conduct discovery
and review the voluminous record. The issue is whether the
new claims asserted in the amended petition may be
considered on the merits even though the petition containing
them was filed after AEDPA’s August 29, 1998, filing
deadline.

The claims asserted in the September 1999 amended
petition may be considered if they “relate back” to claims
16 WILLIAMS V. FILSON

asserted in the original petition filed in April 1998. That is
because Federal Rule of Civil Procedure 15(c), which applies
in federal habeas proceedings, provides in relevant part as
follows:

(c) Relation Back of Amendments.

(1) When an Amendment Relates Back.
An amendment to a pleading relates back to
the date of the original pleading when:

* * *

(B) the amendment asserts a claim or
defense that arose out of the conduct,
transaction, or occurrence set out—or
attempted to be set out—in the original
pleading[.]

Fed. R. Civ. P. 15(c)(1)(B).

The district court held that some of the claims asserted in
Williams’ amended petition do not relate back to the claims
included in his original petition, thus rendering them
untimely, even though all of the claims arise out of the same
conviction and sentence. In so holding, the court applied the
standard for relation back announced in Mayle v. Felix,
545 U.S. 644 (2005), a case decided more than five years
after Williams filed his amended petition. In that case, the
Supreme Court held that a claim asserted in an amended
habeas petition relates back to the original petition only if
“the original and amended petitions state claims that are tied
to a common core of operative facts.” Id. at 664. In so
holding, the Court rejected the broader reading of Rule 15(c)
 WILLIAMS V. FILSON 17

that our court had adopted. See Felix v. Mayle, 379 F.3d 612
(9th Cir. 2004), rev’d, 545 U.S. 644 (2005). We had viewed
the relevant “transaction” or “occurrence” in federal habeas
proceedings as the petitioner’s trial and conviction, such that
claims asserted in an amended petition would relate back so
long as they arose out of the same trial and conviction
challenged in the original petition. See id. at 615.

We need not decide whether the district court’s
application of the relation-back standard from the Supreme
Court’s decision in Mayle is correct. For we conclude that,
even if the claims asserted in the original and amended
petitions do not share a common core of operative facts,
Williams is entitled to equitable tolling for the period
between August 29, 1998, and September 17, 1999. All of
the claims asserted in the September 1999 amended petition
are therefore timely under AEDPA.

To be entitled to equitable tolling, a habeas petitioner
must demonstrate two things: “(1) that he has been pursuing
his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing.”
Holland v. Florida, 560 U.S. 631, 649 (2010) (internal
quotation marks omitted). The State does not contest that
Williams diligently pursued his rights between August 29,
1998, and September 17, 1999. Throughout that period, his
counsel diligently reviewed the record, conducted discovery,
and prepared an amended petition asserting all potential
claims on Williams’ behalf, both exhausted and unexhausted,
as the district court’s scheduling orders directed. See section
I.C above. Williams’ counsel filed the amended petition
within the deadline set by the court after obtaining the court’s
approval of two extension requests, neither of which the State
opposed. So the only issue here is whether Williams has
18 WILLIAMS V. FILSON

shown an extraordinary circumstance that prevented timely
filing.

One way a petitioner can demonstrate an extraordinary
circumstance is by showing that he relied on controlling
circuit precedent to file what he thought would be a timely
federal petition, only to see the circuit precedent subsequently
overruled, thereby rendering his petition untimely. See Nedds
v. Calderon, 678 F.3d 777, 781 (9th Cir. 2012); Harris v.
Carter, 515 F.3d 1051, 1056–57 (9th Cir. 2008). We do not
have quite that situation here. There was no controlling
circuit precedent in the 1998–1999 time frame that
interpreted the meaning of the terms “transaction” and
“occurrence” in Rule 15(c) as applied to federal habeas
proceedings. Our court did not address that issue until we
decided Felix v. Mayle in 2004, years after Williams filed his
amended petition. From August 1998 to September 1999, the
law in our circuit remained unsettled on how broadly (or
narrowly) Rule 15(c)’s relation-back standard should be
construed to apply in federal habeas proceedings.

In Harris, we left open whether equitable tolling may be
granted when a petitioner relies on the unsettled state of the
law (rather than on controlling circuit precedent) in deciding
when to file his petition. 515 F.3d at 1057 n.8; see also
Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013 (9th Cir.
2009) (same). But the Tenth Circuit has squarely addressed
that question, in a decision whose reasoning we find
persuasive here.

In York v. Galetka, 314 F.3d 522 (10th Cir. 2003), the
court confronted a set of circumstances similar to those
present in this case. The petitioner in York relied on the
unsettled state of the law regarding whether AEDPA’s one-
 WILLIAMS V. FILSON 19

year filing deadline would be tolled during the period in
which an earlier federal habeas petition remained pending.
York filed his third federal habeas petition on the assumption
that such tolling would be available. His third petition was
timely with that period of tolling taken into account but
untimely without it. When York filed his third petition in
March 2000, the Tenth Circuit had not yet resolved the issue.
It did so roughly a year later, when it held in Petrick v.
Martin, 236 F.3d 624 (10th Cir. 2001), that AEDPA’s tolling
provision authorized statutory tolling for both state and
federal petitions during the period in which they remained
pending. Shortly thereafter, however, the Supreme Court
held in Duncan v. Walker, 533 U.S. 167 (2001), that the
tolling provision applied only to pending state petitions,
thereby rendering York’s third petition untimely.

The Tenth Circuit concluded that in these circumstances
York was entitled to equitable tolling. The court
acknowledged that York could not have relied on controlling
circuit precedent in deciding when to file his third petition,
since the favorable ruling in Petrick had not yet been issued.
York, 314 F.3d at 528. The court held that equitable tolling
was nonetheless appropriate because “the law in this circuit
was unsettled on the issue”; the statute in question was
ambiguous as to the availability of tolling for pending federal
petitions; and the Supreme Court did not resolve that
ambiguity adversely to York until after he had filed his third
petition. Id.; see also Griffin v. Rogers, 399 F.3d 626, 637
(6th Cir. 2005) (“unstable and unsettled” state of the law
supported equitable tolling).

The facts in Williams’ case are similar to those in York,
although, as we shall explain, the circumstances here favoring
equitable tolling go beyond those present in York. Williams
20 WILLIAMS V. FILSON

relied on the unsettled state of the law when he assumed that
the claims asserted in his amended petition would relate back
to the claims asserted in his original April 1998 petition.
Rule 15(c) was undoubtedly ambiguous on this point: As
applied to federal habeas proceedings, the terms “transaction”
and “occurrence” could readily be understood to mean the
petitioner’s trial and conviction, as evidenced by the fact that
two circuits (ours and the Seventh) later interpreted the terms
in that way, as did the two dissenting Justices in Mayle. See
Mayle, 545 U.S. at 670–74 (Souter, J., dissenting, joined by
Stevens, J.); Felix, 379 F.3d at 615; Ellzey v. United States,
324 F.3d 521, 525–26 (7th Cir. 2003). The Supreme Court
did not resolve the ambiguity in how Rule 15(c) should be
interpreted until after Williams had filed his amended
petition, at which point it was too late for him to cure any
timeliness issues that arose as a result.

To be entitled to equitable tolling, Williams’ reliance on
the unsettled state of the law must have been reasonable
during the time period in question. Cf. Lawrence v. Florida,
549 U.S. 327, 336 (2007) (petitioner was not entitled to
equitable tolling where every circuit to address an issue,
including petitioner’s home circuit, had resolved the issue
adversely to him). We think Williams’ reliance was
eminently reasonable, for at least two reasons.

First, in surveying the law as it stood at the end of August
1998, when AEDPA’s one-year filing deadline passed,
Williams’ counsel had no reason to suspect that Rule 15(c)
would pose an obstacle to consideration of newly added
claims in an amended petition. Ninth Circuit law interpreting
Rule 15(c) in the context of ordinary civil actions had
construed the relation-back standard broadly, permitting
relation back of newly added claims arising out of the same
 WILLIAMS V. FILSON 21

transaction or occurrence even if “the new claims are based
on a different legal theory of which there was no warning in
the original pleading.” Felix, 379 F.3d at 615. Because Rule
15(c)’s reference to “transaction” or “occurrence” could
plausibly be read in the federal habeas context to refer to the
petitioner’s conviction and trial, habeas practitioners
reasonably assumed that newly added claims would relate
back to the original petition so long as the claims arose out of
the same trial and conviction challenged in the original
petition. No circuit court in the country had interpreted Rule
15(c) to the contrary as of August 1998; the first decision
imposing a more restrictive reading of Rule 15(c) did not
come until February 1999. See United States v. Craycraft,
167 F.3d 451, 456–57 (8th Cir. 1999). The dearth of
precedent may explain why the leading habeas treatise at the
time offered no discussion at all about Rule 15(c)’s relation-
back standard, either in its section discussing AEDPA’s
recently added statute of limitations or in the section
discussing amendment of the petition. See 1 James S.
Liebman & Randy Hertz, Federal Habeas Corpus Practice
and Procedure §§ 5.1b, 17.2 (3d ed. 1998).

Second, Williams’ lawyers were not alone in assuming
that newly added claims in an amended petition would relate
back to the original petition; the district court shared that
assumption. Indeed, the series of scheduling orders entered
by the court is otherwise hard to explain. When the court
appointed counsel for Williams in April 1998, only four-and-
a-half months remained before AEDPA’s one-year limitations
period expired. But the court did not schedule the first status
conference until August 28, 1998, literally the day before the
one-year deadline passed, at which point Williams’ lawyers
were still digesting the 47 boxes of materials they had
gathered and, in addition, attempting to formulate a discovery
22 WILLIAMS V. FILSON

plan to obtain the remaining materials they needed to review.
The court granted counsel six additional months, as
contemplated under the George Memo, to complete their
review of the record and to conduct needed discovery. The
court set an initial May 1999 deadline—well beyond the
expiration of AEDPA’s one-year statute of limitations—for
the filing of a comprehensive amended petition asserting all
potential claims, both exhausted and unexhausted. Setting
that schedule made little sense if counsel would then be
precluded from adding new claims unless the claims
happened to share a common core of operative facts with
claims Williams had asserted in his original pro se petition.

The State also assumed that any newly added claims
would relate back. Only that understanding explains why the
State waited eight years after receiving the amended petition
before moving to dismiss any of the claims on the ground that
they did not relate back to the original petition under Rule
15(c).

In sum, it was not until the Supreme Court decided Mayle
in 2005 that anyone involved in this case suggested that the
newly added claims might not relate back and could therefore
be deemed untimely. Until then, the George Memo was
followed, and it assumed that allowing amendment to add
new claims was a valid way of efficiently structuring habeas
proceedings in capital cases.

We hold that Williams is entitled to equitable tolling for
the period from August 29, 1998, to September 17, 1999, and
accordingly reverse the district court’s contrary ruling.
Ultimately, the district court dismissed just a handful of
Williams’ claims based solely on the assumed untimeliness
of his September 1999 amended petition: Claims 1(C), 1(D),
 WILLIAMS V. FILSON 23

1(E), 1(H), 1(I), 1(J), 9, and 14. We remand for further
proceedings as to each of those claims.1

B. Claims 1(A) and 1(F)

We turn now to two related claims alleging ineffective
assistance by Williams’ trial counsel, Shelly O’Neill. In
Claim 1(A), Williams alleges that O’Neill unreasonably
failed to discover and present evidence that Williams suffers
from brain damage. In Claim 1(F), Williams alleges that
O’Neill unreasonably failed to investigate and present
substantial mitigating evidence regarding his abusive and
traumatic childhood. Williams argues that this evidence
might have dissuaded the three-judge panel from sentencing
him to death, and that the district court erred in denying him
relief on these claims without granting his request for an
evidentiary hearing.

Although these claims are substantively related, they
come before us with different procedural backgrounds. Our
analysis is informed by the standard of review applicable to
each. We conclude that the district court did not abuse its
discretion in denying an evidentiary hearing as to Claim 1(A).
Although we conclude that O’Neill was deficient in failing to
uncover evidence of Williams’ brain damage, we defer to the
Nevada Supreme Court’s conclusion that this evidence on its
own does not create a reasonable probability that the outcome
of Williams’ sentencing hearing would have been different.

1
As explained in section II.E below, Claims 1(D), 1(E), 1(H), 1(I),
and 1(J) were procedurally defaulted under state law. Thus, the district
court’s first order of business as to these claims, which allege ineffective
assistance of trial counsel, will be to determine whether the default is
excused under the rule established in Martinez v. Ryan, 566 U.S. 1 (2012).
24 WILLIAMS V. FILSON

As to Claim 1(F), however, we agree with Williams that the
district court abused its discretion in denying an evidentiary
hearing. We remand for the district court to hold an
evidentiary hearing so that it may properly assess whether the
evidence of Williams’ childhood abuse and trauma—in
combination with the brain damage evidence that was not on
its own sufficient—gives rise to a reasonable probability that
the outcome of Williams’ sentencing hearing would have
been different.

1. Claim 1(A)

Williams presented the substance of Claim 1(A) in his
sixth and final state petition for post-conviction relief in
2003. The claim was substantiated by expert reports prepared
in 1999 by Dr. David Schmidt, a clinical neuropsychologist,
and Dr. Dennis DePry, a psychiatrist. Dr. Schmidt diagnosed
Williams with neuropsychological impairment, traumatic
brain injury, and polysubstance abuse. He reported that
Williams’ brain damage likely hampered his “ability to
anticipate the long term consequences of his actions” and
made him “more likely to act-out in a criminal manner.” Dr.
DePry concurred in these diagnoses, and added that Williams
suffered from mixed personality disorder with dependent and
schizoid traits.

The Nevada Supreme Court held that Williams had
procedurally defaulted this claim, citing state-law timeliness
and successiveness bars. See Nev. Rev. Stat. §§ 34.726,
34.810(2). Although it rejected the claim on procedural
grounds, the court’s order denying Williams’ request for en
banc reconsideration arguably reached the merits, as it
addressed the ineffective assistance issue in considering
whether Williams failed to show cause and prejudice
 WILLIAMS V. FILSON 25

sufficient to overcome the procedural bars. With respect to
prejudice at the guilt phase, the court reasoned that the
doctors’ reports “did not suggest that Williams was
incompetent, insane, or lacked the capacity to understand his
actions.” With respect to the penalty phase, the court was
“not persuaded that even assuming trial counsel had
discovered and presented the brain damage evidence . . . in
mitigation that it had a reasonable probability of altering the
outcome of the penalty hearing.”2

The State argues that the Nevada Supreme Court’s
decision constitutes an adjudication on the merits of Claim
1(A) and thus warrants AEDPA deference under 28 U.S.C.
§ 2254(d). The State contends that the court “accepted as true
Williams’ proffered reports” and engaged in the analysis
required under Strickland v. Washington, 466 U.S. 668
(1984). The district court agreed, concluding that, “[e]ven
though the court was considering the claim as part of its
procedural default analysis, the ruling constitutes an
adjudication on the merits for the purposes of § 2254(d).”

Although we have doubts about whether the Nevada
Supreme Court reached the merits of Williams’ claim, we
recognize that the court did apply the functional equivalent of
Strickland’s prejudice standard in conducting its cause-and-
prejudice analysis. See Early v. Packer, 537 U.S. 3, 8 (2002)
(per curiam) (explaining that AEDPA deference may be due
even when the state court did not cite the federal standard).

2
Two justices dissented from the denial of Williams’ en banc request.
They would have remanded to the state trial court for a “full evidentiary
hearing concerning the extent of any actual physical brain damage and its
impact on Williams’s eligibility for the death penalty,” particularly
because two of the four aggravating factors had been stricken.
26 WILLIAMS V. FILSON

Because Williams does not dispute that the Nevada Supreme
Court’s decision amounted to a merits determination, we join
the parties in assuming that the Nevada Supreme Court
reached the merits of the Strickland issue and that the
limitations of § 2254(d) therefore apply. Accepting those
limitations, we cannot conclude that the district court abused
its discretion in denying an evidentiary hearing on Claim
1(A).

Under § 2254(d), our review “is limited to the record that
was before the state court that adjudicated the claim on the
merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). And
we must defer to the state court’s rejection of Claim 1(A)
unless it “was contrary to, or involved an unreasonable
application of, clearly established Federal law,” or “was
based on an unreasonable determination of the facts in light
of the evidence presented” in state court. 28 U.S.C.
§ 2254(d). Strickland supplies the clearly established federal
law for ineffective assistance of counsel claims. Under
Strickland, Williams must demonstrate that his counsel’s
performance was constitutionally deficient and that the
deficient performance prejudiced him. 466 U.S. at 687. To
establish deficient performance, Williams must show that his
counsel’s performance “fell below an objective standard of
reasonableness.” Id. at 688. To establish prejudice, Williams
must “show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694.

We may grant Williams habeas relief only if we find that
the Nevada Supreme Court’s application of Strickland was
“objectively unreasonable.” Woods v. Sinclair, 764 F.3d
1109, 1132 (9th Cir. 2014). In making this determination, we
bear in mind that the “standards created by Strickland and
 WILLIAMS V. FILSON 27

§ 2254(d) are both highly deferential, and when the two apply
in tandem, review is doubly so.” Harrington v. Richter,
562 U.S. 86, 105 (2011) (internal quotation marks and
citations omitted). We note, however, that while the Nevada
Supreme Court effectively applied Strickland’s prejudice
standard, it made no determination as to whether O’Neill’s
failure to have Williams examined by a competent
neuropsychologist amounts to deficient performance. We
therefore review this element of Williams’ claim de novo.
See Porter v. McCollum, 558 U.S. 30, 39 (2009) (per curiam).

As to the guilt phase of the trial, the Nevada Supreme
Court’s denial of relief was not objectively unreasonable.
Even assuming that O’Neill’s performance was deficient, the
Nevada Supreme Court’s determination that Williams was
not prejudiced as a result is entitled to deference. The
evidence demonstrating Williams’ guilt was substantial, and
it was not unreasonable for the state court to conclude that the
evidence contained in the doctors’ reports would have been
insufficient to support a credible insanity defense or to prove
that Williams’ guilty plea was invalid. See Bemore v.
Chappell, 788 F.3d 1151, 1169–70 (9th Cir. 2015).

The question is much closer with respect to the penalty
phase. “At the penalty phase, counsel’s duty to follow up on
indicia of mental impairment is quite different from—and
much broader and less contingent than—the more confined
guilt-phase responsibility.” Id. at 1171. Trial counsel must
therefore inquire into any mental impairments her client may
have and “consult with appropriate medical experts.” Id.
(internal quotation marks omitted).

O’Neill’s failure to make adequate inquiry in this case
cannot be excused, given our insistence “that all relevant
28 WILLIAMS V. FILSON

mitigating information be unearthed for consideration at the
capital sentencing phase” and that counsel “pursue relevant
leads.” Id. (internal quotation marks omitted). Competent
counsel would have obtained records containing conspicuous
red flags indicating that evaluation by a competent medical or
mental health professional was warranted. Most prominently,
Williams’ juvenile court records indicate that in 1977 his
probation officer “requested psychological testing in
connection with assessment of possible organicity or brain
damage.” That testing revealed that there was “definitely
some type of perceptual-motor inability or restrictiveness.”
In addition, Williams’ juvenile and medical records document
his consistent substance abuse during critical years for brain
development. They reveal that he began sniffing glue as
early as age 14, became increasingly dependent on alcohol
during adolescence, and experimented with PCP. A fulsome
investigation would also have revealed that Williams suffered
multiple head injuries, including one from a car collision that
left him unconscious for a period of 15 minutes and for which
he never received medical treatment. Reviewing this aspect
of the claim de novo, we conclude that O’Neill’s failure to
have Williams evaluated by a competent medical or mental
health professional constituted deficient performance. See
Caro v. Woodford, 280 F.3d 1247, 1254–56 (9th Cir. 2002);
Hendricks v. Calderon, 70 F.3d 1032, 1043 (9th Cir. 1995).

The Nevada Supreme Court determined that Williams
was not prejudiced by O’Neill’s deficient performance. Our
review of that determination is limited by the restrictions of
§ 2254(d), and we conclude that the state court did not
unreasonably apply Strickland’s prejudice standard. The
doctors’ reports suggest that, relative to the brain-damaged
population, Williams’ impairment was not particularly
severe: His score on a battery of tests placed his overall
 WILLIAMS V. FILSON 29

neuropsychological functioning in the “mildly impaired
range” as compared to the general population. Weighed
against Williams’ crime, it was not unreasonable for the
Nevada Supreme Court to conclude that this evidence did not,
on its own, give rise to a reasonable probability that the
outcome of the sentencing hearing would have been different.

2. Claim 1(F)

We turn now to Claim 1(F), Williams’ ineffective
assistance of counsel claim predicated on O’Neill’s failure to
investigate and present compelling mitigating evidence
regarding Williams’ childhood. Williams presented the
substance of this claim in his amended 1993 state petition for
post-conviction relief. In support of the claim, he submitted
15 declarations from relatives and friends attesting to a
childhood rife with neglect and abuse. After holding an
evidentiary hearing, the state trial court denied relief in 1996,
reasoning that it was “bound by the doctrine of the law of the
case” because the Nevada Supreme Court had already
considered and denied Williams’ ineffective assistance claims
in 1987. See Williams, 737 P.2d at 510. For good measure,
the court also explained that O’Neill had in fact “investigated
Mr. Williams’ difficult childhood and his youth,” and that the
claim “would be dismissed on those grounds as well.” In
1997, the Nevada Supreme Court affirmed only on the first
ground, concluding “that the lower court properly dismissed
Williams’ petition based upon the doctrine of the law of the
case.”

The Nevada Supreme Court’s reliance on the law-of-the-
case doctrine amounted to a finding that Williams had
procedurally defaulted Claim 1(F) by violating the state-law
bar on successive petitions. See Nev. Rev. Stat. § 34.810(2).
30 WILLIAMS V. FILSON

However, the State has conceded that at the time it was
invoked, Nevada’s successiveness bar was not consistently
applied and is therefore not an adequate state ground to
preclude federal review. Accordingly, the State concedes that
federal review of Claim 1(F) is de novo.

The question before us is whether the district court abused
its discretion in denying relief on the claim without granting
Williams’ request for an evidentiary hearing. Williams is
entitled to an evidentiary hearing if he can (1) “show that he
has not failed to develop the factual basis of the claim in the
state courts”; (2) meet one of the factors identified by the
Supreme Court in Townsend v. Sain, 372 U.S. 293 (1963),
overruled on other grounds by Kenney v. Tamayo-Reyes,
504 U.S. 1 (1992); and (3) “make colorable allegations that,
if proved at an evidentiary hearing, would entitle him to
habeas relief.” Insyxiengmay v. Morgan, 403 F.3d 657, 670
(9th Cir. 2005).

The first condition is easily met. Williams presented the
evidence underlying Claim 1(F) in his 1993 state petition and
at the state evidentiary hearing in 1995. Because he did not
fail to develop the factual basis of the claim in state court,
28 U.S.C. § 2254(e)(2) poses no bar to a federal evidentiary
hearing.

As to the second condition, Williams must show at least
one of the following:

(1) the merits of the factual dispute were not
resolved in the state hearing; (2) the state
factual determination is not fairly supported
by the record as a whole; (3) the fact-finding
procedure employed by the state court was not
 WILLIAMS V. FILSON 31

adequate to afford a full and fair hearing;
(4) there is a substantial allegation of newly
discovered evidence; (5) the material facts
were not adequately developed at the state-
court hearing; or (6) for any reason it appears
that the state trier of fact did not afford the
habeas applicant a full and fair fact hearing.

Townsend, 372 U.S. at 313. At least one factor applies here:
The merits of the factual dispute were not resolved in state
court (Townsend factor 1) because the claim was rejected by
the Nevada Supreme Court on procedural grounds. And to
the extent the state trial court considered the merits of the
claim, that court’s determination was not “fairly supported by
the record as a whole” (Townsend factor 2). The state trial
court held that the claim was “directly contradicted” by the
fact that O’Neill “spoke to numerous members of Mr.
Williams’ family and friends” and had “investigated Mr.
Williams’ difficult childhood and his youth.” But the court
made no reference to the content of the 15 declarations,
which, as discussed below, differs greatly from what O’Neill
elicited in her investigation.

Having satisfied the first two conditions, Williams is
entitled to an evidentiary hearing as long as he advances
“colorable allegations that, if proved at an evidentiary
hearing, would entitle him to habeas relief.” Insyxiengmay,
403 F.3d at 670; see also Quezada v. Scribner, 611 F.3d
1165, 1166–67 (9th Cir. 2010) (order). The Supreme Court
has held that a failure to investigate and present mitigating
evidence of childhood abuse and trauma may constitute
ineffective assistance of counsel. Sears v. Upton, 561 U.S.
945, 948, 956 (2010) (per curiam); Wiggins v. Smith,
539 U.S. 510, 524 (2003). To determine whether that is the
32 WILLIAMS V. FILSON

case here, we turn again to Strickland. Reviewing the matter
de novo, we conclude that Williams has alleged a colorable
claim that O’Neill rendered deficient performance and that
Williams suffered prejudice as a result.

a. Deficient Performance

We begin with Strickland’s deficient performance prong.
It is instructive to consult “[r]estatements of professional
standards” that “describe the professional norms prevailing
when the representation took place.” Bobby v. Van Hook,
558 U.S. 4, 7 (2009) (per curiam). The ABA Standards for
Criminal Justice applicable at the time of Williams’ trial
explained that defense counsel has “a substantial and
important role to perform in raising mitigating factors,” and
that “[i]nformation concerning the defendant’s background,
education, employment record, mental and emotional
stability, family relationships, and the like, will be relevant.”
ABA Standards for Criminal Justice 4-4.1, p. 4-55 (2d ed.
1980). We have explained that “the investigation should
include inquiries into social background and evidence of
family abuse.” Summerlin v. Schriro, 427 F.3d 623, 630 (9th
Cir. 2005) (en banc). Counsel’s obligation “to cast a wide net
for all relevant mitigating evidence” is at its height during the
penalty phase of a capital case. Frierson v. Woodford,
463 F.3d 982, 989 (9th Cir. 2006). Assessed against these
standards, Williams has alleged a colorable claim that
O’Neill’s failure to uncover evidence of Williams’ childhood
abuse and trauma constitutes deficient performance.

“[T]he presence of certain elements in a capital
defendant’s background, such as a family history of
alcoholism, abuse, and emotional problems, triggers a duty to
conduct further inquiry before choosing to cease
 WILLIAMS V. FILSON 33

investigating.” Earp v. Ornoski, 431 F.3d 1158, 1175–76
(9th Cir. 2005) (citing Wiggins, 539 U.S. at 525). O’Neill
failed to take even the first steps of an adequate investigation,
which in this case would have revealed warning signs
regarding each of those elements in Williams’ background.
She failed to obtain Williams’ juvenile records, which would
have revealed that Williams’ behavioral issues arose after his
mother died when he was nine. She failed to obtain his
medical records, which would have revealed that Williams
dealt with the “emotional turmoil” in his life by resorting to
drug use that negatively affected his “mental stability.” And
she failed to obtain Williams’ school records, which would
have revealed that his performance deteriorated throughout
adolescence.

As discussed at length below, the declarations submitted
in support of Claim 1(F) confirm that each of the red flags
identified in Earp was present in Williams’ background, and
were in fact such prominent features of his childhood that
anything beyond a cursory investigation would have
uncovered them. And indeed, the declarations indicate that
the little investigation O’Neill did do was, in fact, cursory at
best.

O’Neill’s investigation consisted of one three-day trip to
Los Angeles, during which she met with a number of
Williams’ relatives and, according to one account, “talked to
each person for ten to fifteen minutes.” Williams’ sister April
reported that “I had barely begun to tell her [about] my
brother, when it was all over.” Williams’ sister Cynthia
reported that O’Neill asked her only “a little bit about how we
grew up.” Had O’Neill engaged more deeply, April and
Cynthia could have described in detail the abuse that they and
Williams endured throughout their childhoods. It is no
34 WILLIAMS V. FILSON

excuse that they and other family members were not
immediately more forthcoming in their brief interviews with
O’Neill. “Trial counsel has an affirmative duty not to simply
accept the facts as they might be presented at first blush, but
rather to ‘unearth[] for consideration’ at the sentencing phase
‘all relevant mitigation information.’” Doe v. Ayers, 782 F.3d
425, 437 (9th Cir. 2015) (quoting Wallace v. Stewart,
184 F.3d 1112, 1117 (9th Cir. 1999)).

O’Neill failed not only to elicit relevant information, but
also to prepare the family members and friends who testified
at the sentencing hearing. Williams’ sister April explained
that O’Neill did not even mention when they met in Los
Angeles that she would be asked to testify at the sentencing
hearing, much less go over the kinds of questions she would
be asked. This lack of preparation is apparent in the
transcript of Williams’ sentencing hearing, which is replete
with indications that O’Neill failed to inform her most
important witnesses of the questions she planned to ask them.
Williams’ sister Cynthia, for instance, insisted on the stand
that Williams had not committed the murder, despite his
guilty plea. When asked if Williams should be allowed to
live even if he had committed the murder, Cynthia replied:
“No. If he did it, no, he shouldn’t.” Williams’ aunt, Inez
Kelly, another critical witness, also insisted on Williams’
innocence, and revealed that she had never been informed of
the salient details of the crime. We have made clear that “the
failure to prepare a witness adequately can render a penalty
phase presentation deficient.” Hamilton v. Ayers, 583 F.3d
1100, 1121 (9th Cir. 2009).

Having lapsed in her investigatory and preparatory duties,
O’Neill was left to base her mitigation case primarily on
Williams’ redeeming qualities. The district court concluded
 WILLIAMS V. FILSON 35

that “O’Neill arrived at this strategy after conducting a
reasonable investigation into Williams’s family and social
background.” We cannot agree. While it is “strongly
presumed” that counsel “made all significant decisions in the
exercise of reasonable professional judgment,” Strickland,
466 U.S. at 690, we cannot credit O’Neill’s decision to
present the mitigation case she did as a strategic choice
because “counsel cannot be said to have made a tactical
decision without first procuring the information necessary to
make such a decision.” Reynoso v. Giurbino, 462 F.3d 1099,
1112 (9th Cir. 2006); see also Correll v. Ryan, 539 F.3d 938,
949 (9th Cir. 2008) (“An uninformed strategy is not a
reasoned strategy. It is, in fact, no strategy at all.”).

Moreover, no competent counsel would have made an
informed choice to present the “good guy” mitigation case
that O’Neill presented, when far more compelling mitigating
evidence (discussed in the next section) was available. The
judges on the sentencing panel heard that Williams “loved
church” and was “always helping people.” They heard that
he made sure his younger sisters had lunch money for school,
and that he helped out in his great-uncle’s shop. This defense
was obviously insufficient to mitigate what the prosecutor
called “the most brutal, the most sadistic and most merciless
murder ever in the history of Washoe County.” See Bemore,
788 F.3d at 1172 (“[A] good character defense was unlikely
to be persuasive to a jury that had just decided that
[defendant] had carried out a grizzly murder, including
torturing the victim . . . .”). O’Neill herself even told the
judges that “[n]early everyone I talk to wants Cary Williams
to die,” and that “if [she] thought that killing Cary Williams
would bring Katherine Carlson and her baby back,” she felt
“that would be a fair exchange.” In his closing argument at
sentencing, the prosecutor summed up O’Neill’s presentation:
36 WILLIAMS V. FILSON

“So where, then, are the mitigating factors? They simply do
not exist in this case.”

b. Prejudice

We turn now to Strickland’s prejudice prong. To
establish prejudice, Williams must show that there is “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. Comparing the
mitigation case that O’Neill presented to the case that an
adequate investigation would have yielded, we conclude that
Williams has alleged a colorable claim that he was prejudiced
by O’Neill’s deficient performance.

O’Neill’s mitigation case portrayed Williams as a
thoughtful and dutiful child who grew up with the support of
a loving family, despite being “bounced around a little bit”
between homes and schools. In light of Williams’ proffered
evidence, we now know that an adequate investigation would
have revealed an upbringing marred by violence and
upheaval, and a family life rife with abuse and neglect.

The declarations of friends and relatives reveal a life
plagued by violence at home beginning when Williams was
five years old. It was then that his mother married Tommy
Enge, who frequently beat her in front of the children—once
so badly that she miscarried. When Williams stepped in to
try to protect his mother, the violence was directed at him.
Williams’ sister remembers one occasion on which Mr. Enge
beat an eight-year-old Williams “like he was hitting a man.”
Williams and his mother and sisters endured constant abuse
for nearly three years, until Williams’ mother separated from
Mr. Enge.
 WILLIAMS V. FILSON 37

But any respite was short-lived. The following year,
Williams’ mother became bedridden with cancer. Williams
acted as her caretaker and agonized over her daily
deterioration until she died, when Williams was nine. The
sentencing judges heard that Williams “missed” his mother,
but not that he was so distraught at her funeral that he nearly
dragged her casket off its platform, or that his teachers began
to recognize behavioral problems around this time.

Following their mother’s death, Williams and his sisters
were passed between relatives who fought over the Social
Security benefits that followed them. The sentencing judges
heard that Williams was “shuffl[ed] from one caring relative
to another,” each of whom “loved him very much.” They did
not hear that Williams experienced constant abuse and
neglect in each household.

Williams and his sisters first moved in with their mother’s
cousin, Inez Kelly. Ms. Kelly largely confined the children
to the house and hoarded food so that they did not have
enough to eat. Williams was forced to assume adult
responsibilities, acting as a parent to his younger sisters and
learning to drive at age nine so that he could take over the
wheel when Ms. Kelly became too drunk to drive. When the
children failed to live up to Ms. Kelly’s exacting standards,
she would punish them by locking them in a dark closet for
hours or, more often, whip them with an extension cord with
frayed wires at the end. These beatings left the children
bruised and bloody. One whipping sent Williams’ sister to
the emergency room, but Williams consistently got the worst
of it. Ms. Kelly’s husband, Roosevelt Kelly, also frequently
beat Williams. On one occasion, Mr. Kelly “had [12-year-old
Williams] down on the ground and was whipping him as hard
as he could, like he was hitting a punching bag.” Mr. Kelly
38 WILLIAMS V. FILSON

also battered Ms. Kelly and sexually abused Williams’
sisters, which Williams was helpless to prevent. Unable to
endure this abuse, Williams ran away at age 13.

Williams then lived for a brief time with his aunt Jean
Williams. The sentencing judges were told that Williams
“didn’t get along with” Aunt Jean’s husband, Lawrence Enge
(Tommy Enge’s younger brother). They were not told that
Williams’ problem with Mr. Enge was his frequent abuse of
Williams’ aunt, grandmother, and sister, or that Mr. Enge was
later convicted of child abuse.

Williams and his sisters next moved in with their aunt
Katheryn Carter and her husband Larry Joe Carter. Neglected
and again denied food, the only attention the children
received in this house was unwanted. The Carters beat
Williams and his sisters for a range of small infractions. And
Williams was again left helpless to prevent the sexual abuse
of his sisters, this time at the hands of Mr. Carter, who also
allegedly raped and impregnated his own daughter. Williams
and his sisters eventually returned to live with Aunt Jean and
Lawrence Enge, who continued to sexually abuse one of
Williams’ sisters. In the midst of this rampant sexual abuse,
Ms. Kelly had two of Williams’ sisters fitted with intrauterine
devices without their knowledge, which have left them able
to give birth only through caesarean section.

As Williams entered his teenage years, this family turmoil
was increasingly matched by violence outside the home.
O’Neill told the sentencing judges that Williams grew up in
a “rough neighborhood” where “white people would fear to
go,” but she failed to convey the level of violence he
experienced. Between ages 14 and 16, Williams witnessed
the shooting deaths of at least three of his friends. At age 16
 WILLIAMS V. FILSON 39

or 17, he was surrounded by teenagers who placed a sawed-
off shotgun in his mouth, only to be saved by a passing police
car. He returned home from that incident to find his family
already mourning his death. Williams estimates that he was
shot at over 100 times, and he was struck on two occasions.
At age 18, shortly before he moved to Reno, Williams
underwent three separate operations to dislodge a bullet from
his chest.

Unable to cope with his reality at home and on the streets,
Williams turned to substance abuse at a young age. He was
an alcoholic by age 13, and required medical treatment for
sniffing glue three weeks after his 14th birthday. He
eventually turned to harder drugs like PCP, and his behavior
became increasingly self-destructive. At 16, Williams
attempted to commit suicide by overdosing on sleeping pills.
At 18, distraught over the recent deaths of his grandmother
and favorite uncle, Williams drove Aunt Jean’s car into
oncoming traffic in a busy intersection, resulting in a
collision that totaled his aunt’s car and left him with a severe
head injury.

We cannot agree with the district court that “much of the
social history set forth in support of this claim was, indeed,
presented to the three-judge panel.” The judges heard
virtually nothing that would have helped them understand the
full extent of the abuse and trauma Williams had endured
during his formative years, the role those experiences played
in shaping the person he became, and why he might therefore
be deserving of mercy. O’Neill only faintly hinted at the
adversity Williams faced during childhood, leading the
prosecutor to describe her half-hearted “bad background”
case as “almost laughable.”
40 WILLIAMS V. FILSON

Had Williams’ counsel been effective, the sentencing
judges would have learned that Williams had precisely “the
kind of troubled history [the Supreme Court] ha[s] declared
relevant to assessing a defendant’s moral culpability.”
Wiggins, 539 U.S. at 535. They would have learned that
Williams endured relentless violence throughout his
childhood and adolescence, and they would have gained
insight into his inability to cope with that trauma through
testimony describing his increasingly self-destructive
behavior. “This evidence may not have made [him] any more
likable to the [judges], but it might have helped the [judges]
understand [him], and his horrendous acts . . . .” Sears,
561 U.S. at 951.

The district court speculated that attempting to present the
social history described above, “with witnesses giving
conflicting testimony and being subject to cross-examination,
would have painted a murky and confusing picture of
Williams’s childhood.” This is precisely the kind of
speculation in which the district court should not have
engaged without the benefit of an evidentiary hearing, during
which the court could actually assess how credible and
compelling the testimony would have been. The mitigating
evidence submitted in support of Claim 1(F) is sufficient to
support the conclusion that Williams has a colorable claim
that he was prejudiced by O’Neill’s deficient performance.
Thus, the district court abused its discretion in denying an
evidentiary hearing as to Claim 1(F). See Stankewitz v.
Woodford, 365 F.3d 706, 725 (9th Cir. 2004).

While the mitigating evidence underlying Claim 1(F) is
sufficient on its own to support this conclusion, it is proper in
our prejudice analysis to consider the impact this evidence
would have had in combination with the evidence of brain
 WILLIAMS V. FILSON 41

damage underlying Claim 1(A). Claims 1(A) and 1(F) allege
related aspects of O’Neill’s ineffective assistance in preparing
Williams’ mitigation case. The claims are formally separate,
however, because they were presented and handled piecemeal
in the state courts. We are bound by the standard of review
attached to each claim, and accordingly defer to the Nevada
Supreme Court’s conclusion that the brain damage evidence
underlying Claim 1(A) is insufficient on its own to raise a
reasonable probability that the outcome of Williams’
sentencing hearing would have been different. However, that
evidence cannot simply be ignored when assessing prejudice
as to Claim 1(F).

It is beyond debate that evidence of brain damage can be
powerful mitigating evidence. See Sears, 561 U.S. at 956;
Porter, 558 U.S. at 36, 41. Although perhaps insufficient to
have altered the outcome on its own, this evidence surely
would have had some incremental impact on the sentencing
decision. That incremental impact must be factored into the
prejudice analysis with respect to Claim 1(F). We have long
recognized that the cumulative effect of multiple errors may
prejudice a defendant even if no single error in isolation is
sufficient to establish prejudice. See United States v.
Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996). Of course, we
cannot consider the cumulative effect of non-errors. Fuller
v. Roe, 182 F.3d 699, 704 (9th Cir. 1999) (per curiam),
overruled on other grounds by Slack v. McDaniel, 529 U.S.
473 (2000). But the Nevada Supreme Court did not address
whether O’Neill’s failure to uncover evidence of Williams’
brain damage was constitutionally deficient, and reviewing
that aspect of the claim de novo, we have determined that it
was. That failure was part and parcel of O’Neill’s deficient
performance in preparing Williams’ mitigation case, and so
it is properly within the scope of our prejudice inquiry. See
42 WILLIAMS V. FILSON

Bemore, 788 F.3d at 1176; Sanders v. Ryder, 342 F.3d 991,
1001 (9th Cir. 2003); Silva v. Woodford, 279 F.3d 825, 834
(9th Cir. 2002).

We have long recognized not only that “prejudice
resulting from ineffective assistance of counsel must be
‘considered collectively, not item by item,’” but also that
“[t]his is particularly true when . . . the different pieces of
mitigating evidence fit together into an internally coherent
and compelling narrative whole.” Doe, 782 F.3d at 460 n.62
(quoting Kyles v. Whitley, 514 U.S. 419, 436 (1995)).
Evidence of brain damage and childhood abuse often operate
in tandem and together “amount[] to classic mitigating
circumstances.” Correll, 539 F.3d at 944; see also Earp,
431 F.3d at 1179. That certainly could have been the case
here, where the neglected evidence would have been mutually
corroborative and reinforcing. The beatings Williams
endured may help explain his brain damage (Dr. Schmidt
explained that the brain damage was likely caused in part by
“blows to his head during his developmental years”), and the
history of abuse sheds light on his psychological development
(Dr. DePry emphasized the significance of Williams’
“turbulent, chaotic and abusive upbringing as it relates to his
behavior and personality”).

Considering the impact that the evidence of brain damage
and childhood abuse might have had in tandem, we have no
trouble concluding that Williams has presented a colorable
claim that he was prejudiced by O’Neill’s deficient
performance in preparing the mitigation case. We therefore
hold that the district court abused its discretion in denying an
evidentiary hearing on Claim 1(F) and remand for such a
hearing. Once the evidence underlying that claim has been
further developed, the district court will be in a position to
 WILLIAMS V. FILSON 43

determine whether Williams is entitled to relief. In assessing
whether there is a reasonable probability that Williams would
have received a different sentence, the district court should
consider “the totality of the available mitigation evidence,”
including the evidence of brain damage, and “reweigh[] it
against the evidence in aggravation,” bearing in mind that two
of the four aggravating factors considered at Williams’
sentencing have since been stricken. Williams v. Taylor,
529 U.S. 362, 397–98 (2000).3

C. Claims 1(B) and 1(G)

We turn next to Williams’ contention that the district
court erred by denying his request for an evidentiary hearing
on two additional ineffective assistance of counsel claims. In
Claim 1(B), Williams alleges that O’Neill rendered
ineffective assistance during the guilt phase by failing to
prepare an adequate defense. In Claim 1(G), Williams
contends that O’Neill rendered ineffective assistance during
the penalty phase by failing to retain a medical expert who
could rebut the State’s evidence that Ms. Carlson’s murder
involved torture.

Williams makes two related arguments that apply equally
to both claims. First, he argues that the district court’s refusal
to hold an evidentiary hearing was predicated on the court’s
erroneous determination that it could not consider certain

3
Claim 1(H) alleges another related deficiency in O’Neill’s penalty-
phase representation: her failure to obtain Williams’ juvenile records. If
after further proceedings on that claim, see supra section II.A, the district
court concludes that this failure amounts to deficient performance, then
any prejudice flowing from it should figure in the court’s cumulative
prejudice analysis as well.
44 WILLIAMS V. FILSON

documentary evidence (declarations, memos, and reports)
submitted in support of his claims. Second, he argues that,
even if the district court’s initial ruling was correct under the
law as it then stood, he is entitled to have the documentary
evidence considered under the rule subsequently established
in Martinez v. Ryan, 566 U.S. 1 (2012).

Williams’ first argument is without merit. The district
court properly held that it could not consider the documentary
evidence in question as to the merits of the ineffective
assistance issues because Williams did not submit that
evidence to the state courts in the manner required under state
law.

Williams raised the substance of Claims 1(B) and 1(G) in
state petitions for post-conviction relief filed in 1984 and
1992, respectively. The state trial court held evidentiary
hearings on both claims and denied relief, rulings that the
Nevada Supreme Court affirmed. Williams did not submit
any of the documentary evidence at issue here in connection
with those earlier petitions. He first presented the evidence
to the state courts in his sixth petition for post-conviction
relief filed in 2003. The Nevada Supreme Court held that
Williams’ 2003 petition was untimely under state law and
therefore refused to consider the new evidence at all.

The district court correctly held that it could not consider
the new evidence Williams submitted to the state courts for
the first time in 2003. As the district court recognized,
28 U.S.C. § 2254(e)(2) barred it from conducting an
evidentiary hearing to supplement the state court record on
Claims 1(B) and 1(G). Section 2254(e)(2) states that if a
petitioner “has failed to develop the factual basis of a claim
in State court proceedings, the court shall not hold an
 WILLIAMS V. FILSON 45

evidentiary hearing on the claim,” with certain statutory
exceptions not relevant here. Section 2254(e)(2) bars an
evidentiary hearing in federal court if the failure to develop
the factual basis of a claim in state court is attributable to a
“lack of diligence or some other fault” on the petitioner’s
part. Williams v. Taylor, 529 U.S. 420, 434 (2000).

Here, Williams was not diligent in developing the factual
basis for Claims 1(B) and 1(G) in state post-conviction
proceedings. All of the information contained in the
documentary evidence at issue (which we discuss in greater
detail below) could have been presented in Williams’ first
petition for state post-conviction relief in 1984, had his
counsel been diligent in discovering it. Indeed, the state
courts refused to consider the new evidence when Williams
first presented it in 2003 precisely because his post-
conviction petition was untimely under state law. Thus,
§ 2254(e)(2) required the district court to deny Williams’
request for an evidentiary hearing.

Williams’ second argument is predicated on the Supreme
Court’s decision in Martinez, which was decided after the
district court’s initial ruling denying relief on Claims 1(B)
and 1(G). Martinez carved out a narrow exception to the rule
established in Coleman v. Thompson, 501 U.S. 722 (1991),
which held that an attorney’s failure to raise a claim at the
proper time under state law does not provide “cause”
excusing the resulting procedural default. Id. at 757.
Martinez created a different rule for ineffective assistance of
trial counsel claims that, under state law, must be raised in
“an initial-review collateral proceeding.” 566 U.S. at 17.
With respect to such claims, the Court held that “a procedural
default will not bar a federal habeas court from hearing a
substantial claim of ineffective assistance at trial if, in the
46 WILLIAMS V. FILSON

initial-review collateral proceeding, there was no counsel or
counsel in that proceeding was ineffective.” Id.

Williams relies on Martinez to make the following
argument. He contends that under Nevada law, ineffective
assistance of trial counsel claims must be brought in “an
initial-review collateral proceeding.” He further argues that
the new declarations the district court refused to consider
were of such significance that they effectively transformed
his ineffective assistance of trial counsel claims into “new”
claims never presented to the state courts. Those new claims
were therefore procedurally defaulted, he says, but the default
is excused under Martinez because his counsel in the first
post-conviction review proceeding was ineffective for failing
to properly raise the claims at that time. The district court is
free, Williams concludes, to consider the new claims now,
supported by the documentary evidence that the state courts
refused to consider in 2003.

Williams’ argument relies on our court’s decision in
Dickens v. Ryan, 740 F.3d 1302 (9th Cir. 2014) (en banc).
There, we held that § 2254(e)(2) does not bar a federal habeas
court from considering new evidence supporting a claim of
ineffective assistance of trial counsel if the new evidence
either “fundamentally alter[s] the legal claim already
considered by the state courts or place[s] the case in a
significantly different and stronger evidentiary posture than
it was when the state courts considered it.” Id. at 1318
(internal quotation marks and citations omitted). In either of
those scenarios, the new evidence transforms the claim into
a new claim that the state courts never had an opportunity to
adjudicate on the merits. The claim is therefore unexhausted
and, if it can no longer be raised in state court, procedurally
defaulted as well. It is at that point subject to analysis under
 WILLIAMS V. FILSON 47

Martinez to determine if the default can be excused. Id. at
1318–19.

The threshold question, then, is whether the new evidence
contained in the declarations at issue places Claims 1(B) and
1(G) in “a significantly different and stronger evidentiary
posture,” such that under Dickens they must be deemed
“new” claims not previously presented to the state courts.
We conclude that the declarations do not have that effect.

We address Claim 1(B) first, which alleges that O’Neill
rendered ineffective assistance by failing to prepare an
adequate defense during the guilt phase. When he presented
this claim to the state courts in 1984, Williams grounded it
mainly on allegations that O’Neill was inexperienced and
overworked, and thus ill-equipped to handle a case of this
magnitude on her own. Williams alleged that O’Neill was
just a few years out of law school and had only recently
joined the public defender’s office. She had little trial
experience, had no experience representing a defendant in a
felony case on her own, and had never tried a capital case.
And while Nevada law permitted the appointment of two
public defenders to represent a capital defendant, O’Neill did
not request the assistance of co-counsel. Williams further
alleged that O’Neill was overworked and distracted because
the public defender’s office refused to give her a lighter
workload throughout his case. Because O’Neill suffered
from a lack of support and experience, Williams argued, she
was unable to conduct the research and investigation
necessary to prepare an adequate guilt-phase defense.

The new evidence Williams submitted to the district court
in support of this claim does not fundamentally alter the
nature of the claim or place it in a significantly different and
48 WILLIAMS V. FILSON

stronger evidentiary posture. See id. at 1318. For example,
Williams produced a declaration from an investigator in the
public defender’s office who worked with O’Neill at the time
she represented Williams. He states that O’Neill became
overwhelmed shortly after undertaking the representation,
and that she never requested his assistance even though he
was the investigator assigned to Williams’ case. This
declaration merely expands on Williams’ initial allegation
that O’Neill was inexperienced and declined to use all of the
resources at her disposal. As an additional item of new
evidence, Williams produced a memo from a supervisor in
the public defender’s office, sent during the period of
Williams’ representation, stating that due to a staff shortage
in the office O’Neill could not “switch[]” her cases with other
attorneys. This memo substantiates but does not alter the
substance of Williams’ earlier allegation in 1984 that the
public defender’s office refused to give O’Neill a lighter
workload to allow her to focus more intently on his case. The
remaining documents Williams has produced are of a similar
order. None of the new evidence Williams submitted in
support of Claim 1(B) had the effect of transforming it into a
“new” claim distinct from the claim he had earlier presented
to the state courts.

We reach the same conclusion with respect to Claim 1(G).
In that claim, Williams alleges that O’Neill rendered
ineffective assistance during the penalty phase by failing to
obtain a medical expert to rebut the State’s evidence of the
aggravating circumstance of torture. Williams first alleged
the substance of this claim in state court in 1992. The claim
relates to the penalty-phase testimony of a pathologist called
by the State, Dr. Roger Ritzlin, who testified that Ms. Carlson
suffered several different types of knife wounds during the
attack: three potentially fatal wounds to the chest; a number
 WILLIAMS V. FILSON 49

of defensive wounds on Ms. Carlson’s hands and arms; and
a third type of wound that Dr. Ritzlin described as “punctate”
wounds—small, superficial cuts where the skin had been
punctured, consistent with the victim having been poked with
a knife. Dr. Ritzlin concluded that these superficial puncture
wounds were non-fatal and non-defensive in nature. On that
basis, he concluded that Ms. Carlson had been tortured before
being killed.

In his 1992 petition, Williams alleged that reasonably
competent trial counsel would have consulted with
independent medical experts and thereby obtained evidence
refuting Dr. Ritzlin’s testimony that the superficial puncture
wounds were the product of torture. Had an independent
expert been consulted, Williams alleged, the expert would
have testified that the superficial injuries Dr. Ritzlin
identified were defensive wounds inflicted during the course
of a struggle, rather than wounds inflicted to torture the
victim. In particular, Williams alleged that an independent
expert would have provided the following opinions:

• The “superficial” or “torture” wounds
identified by Dr. Ritzlin are consistent
with wounds inflicted during a struggle.

• The blood splatter patterns in the bedroom
and the condition of [the] crime scene and
the nature and frequency of defense
wounds on the victim demonstrate that the
killing occurred during a tremendous
struggle and is inconsistent with a torture
theory.
50 WILLIAMS V. FILSON

• The lack of non-stabbing injuries to the
victim and the location of the so-called
torture wounds—in the areas of the
heart—are inconsistent with Dr. Ritzlin’s
torture theory.

The new evidence at issue here is a letter report prepared
by Dr. Donald Reay, a forensic pathologist who reviewed
(among other things) the autopsy report, autopsy
photographs, and crime scene photographs, as well as the
testimony of Dr. Ritzlin. Dr. Reay opined that there was
nothing to suggest that the superficial puncture wounds
identified by Dr. Ritzlin were the product of torture. Instead,
he concluded that the scattered wounds were defensive in
character, likely suffered during the struggle that occurred
before the fatal wounds were inflicted. Williams first
presented Dr. Reay’s report to the state courts in 2003 in
connection with his sixth state petition for post-conviction
relief. As noted earlier, the state courts refused to consider
the evidence on the ground that Williams’ petition was
untimely.

In our view, Dr. Reay’s report does not place Claim 1(G)
in a “significantly different and stronger evidentiary posture”
than the claim was in when Williams first presented it to the
state courts in 1992. Dr. Reay’s report, which is less than two
pages long, adds little to the detailed allegations Williams set
forth in his 1992 petition. Consistent with Williams’ earlier
allegations, the report concludes that the injuries Dr. Ritzlin
identified were likely defensive wounds inflicted during a
struggle. Indeed, Dr. Reay’s conclusion is based on the same
factors that Williams identified in his 1992 petition, including
the superficial and scattered nature of the wounds and the
absence of any non-stabbing wounds on the victim’s body.
 WILLIAMS V. FILSON 51

To be sure, Dr. Reay’s report supports Williams’ previous
assertions about the conclusions that a medical expert would
have reached, had one been consulted. But the two-page
report merely corroborates the detailed allegations set forth in
Williams’ 1992 petition and thus does not transform Claim
1(G) into a new and unexhausted claim. See Sivak v.
Hardison, 658 F.3d 898, 908 (9th Cir. 2011).

Accordingly, we affirm the district court’s denial of an
evidentiary hearing on Claims 1(B) and 1(G).

D. Claim 16

In Claim 16, Williams challenges the constitutional
validity of the “avoid lawful arrest” aggravating
circumstance, one of the four aggravators originally found by
the three-judge sentencing panel. At the time of Williams’
trial, that aggravating circumstance required the State to
prove that “[t]he murder was committed for the purpose of
avoiding or preventing a lawful arrest or effecting an escape
from custody.” Nev. Rev. Stat. § 200.033(5) (1981). The
State’s theory in this case was that Williams murdered Ms.
Carlson to avoid and prevent his lawful arrest for the burglary
of the Carlsons’ home. The sentencing judges found
sufficient evidence to support that theory. Williams argues
that Nevada’s avoid-lawful-arrest aggravating circumstance
is facially invalid under the Eighth Amendment both because
it is too vague and because it fails to adequately narrow the
class of death-eligible defendants. He further argues that, as
applied to him, the aggravating circumstance violates the Ex
Post Facto Clause and the Fourteenth Amendment’s Due
Process Clause because he lacked adequate notice at the time
he committed the offense that § 200.033(5) could be applied
52 WILLIAMS V. FILSON

to the facts of his crime. We do not find these contentions
meritorious, even reviewing the merits of Claim 16 de novo.4

We turn first to Williams’ Eighth Amendment arguments.
He contends that, read most sensibly, § 200.033(5) should be
understood to apply only when the defendant’s arrest is truly
imminent, as when a defendant murders a police officer
attempting to take the defendant into custody. The parties
agree that the Nevada Supreme Court has rejected that
reading of the aggravator. See Evans v. State, 926 P.2d 265,
280 (Nev. 1996); Cavanaugh v. State, 729 P.2d 481, 486
(Nev. 1986). In Williams’ view, rather than adopt his
sensible construction of § 200.033(5), the Nevada Supreme
Court has instead read it to apply whenever a defendant
murders the victim to prevent her from serving as a witness
who could later identify the defendant. The problem with
that reading, Williams asserts, is that the aggravating
circumstance would apply in virtually every murder case,
since the victim of the murder could always be a witness if
allowed to live. Read that broadly, the aggravating
circumstance would likely violate the Eighth Amendment, for
the Supreme Court has held that aggravating circumstances
must “genuinely narrow the class of persons eligible for the
death penalty.” Romano v. Oklahoma, 512 U.S. 1, 7 (1994)
(internal quotation marks omitted). Stated differently, an
aggravating circumstance “may not apply to every defendant
convicted of murder; it must apply only to a subclass of

4
Like the district court, we review the arguments raised in Claim 16
de novo because the Nevada Supreme Court never issued a ruling on the
merits of the claim. That is because Williams likely procedurally
defaulted the claim by not raising it on direct appeal, or even in his first
state petition for post-conviction relief. However, the State never asserted
procedural default as a defense to this claim in the district court and has
not asserted it as a defense on appeal.
 WILLIAMS V. FILSON 53

defendants convicted of murder.” Tuilaepa v. California,
512 U.S. 967, 972 (1994).

The Nevada Supreme Court, however, has construed
§ 200.033(5) more narrowly than Williams suggests. We
have found no case in which the court adopted the broad,
constitutionally problematic reading that Williams posits.
Instead, the Nevada Supreme Court has upheld application of
the aggravating circumstance only when the State has proved
that the defendant committed murder for the purpose of
preventing the victim from serving as a witness to some
antecedent crime (separate from the murder) that the
defendant committed. See, e.g., Jeremias v. State, 412 P.3d
43, 55 (Nev. 2018); Blake v. State, 121 P.3d 567, 577 (Nev.
2005); Domingues v. State, 917 P.2d 1364, 1375–77 (Nev.
1996); Cavanaugh, 729 P.2d at 486. That is the same
limiting construction other States have adopted for their own,
similarly worded avoid-lawful-arrest aggravators. See, e.g.,
Thompson v. State, 648 So. 2d 692, 695 (Fla. 1994) (per
curiam); People v. Davis, 794 P.2d 159, 187 n.22 (Colo.
1990), overruled on other grounds by People v. Miller,
113 P.3d 743 (Colo. 2005). We agree with the Eighth and
Tenth Circuits that such a limiting construction adequately
narrows the class of defendants rendered eligible for the death
penalty. See Davis v. Executive Director of the Department
of Corrections, 100 F.3d 750, 769 (10th Cir. 1996);
Wainwright v. Lockhart, 80 F.3d 1226, 1231 (8th Cir. 1996).

Williams next contends that the Nevada Supreme Court
has inconsistently applied this limiting construction, such that
the avoid-lawful-arrest aggravator is unconstitutionally
vague. According to Williams, the Nevada Supreme Court
has upheld application of the circumstance in some cases
involving a defendant who murdered the victim after
54 WILLIAMS V. FILSON

committing an antecedent crime, but has arbitrarily rejected
application of the circumstance in other cases with the same
facts. We do not read the cases as exhibiting this kind of
arbitrariness in application. What they demonstrate is that the
Nevada Supreme Court requires the State to produce evidence
from which the factfinder can reasonably infer that the
defendant committed the murder for the purpose of
eliminating the victim as a witness for an antecedent crime.
Where such proof exists, the court has upheld application of
the aggravating circumstance. See, e.g., Randolph v. State,
36 P.3d 424, 437 (Nev. 2001); Cavanaugh, 729 P.2d at 486.
And where the court viewed such proof as lacking, it has
rejected application of the circumstance. See, e.g., Witter v.
State, 921 P.2d 886, 900 (Nev. 1996), overruled on other
grounds by Byford v. State, 994 P.2d 700 (Nev. 2000);
Jimenez v. State, 775 P.2d 694, 698 (Nev. 1989). None of
these factbound decisions renders the avoid-lawful-arrest
aggravating circumstance unconstitutionally vague.

Williams makes one final argument that warrants
discussion. He notes that, at the time he committed his
offense, the Nevada Supreme Court had not yet held that
§ 200.033(5) could be applied in a case like his, involving the
murder of a witness, as opposed to someone actually involved
in effectuating the defendant’s arrest. The court first upheld
application of the aggravating circumstance in a case
involving the murder of a witness more than four years after
Williams’ offense, in Cavanaugh v. State, 729 P.2d 481 (Nev.
1986). Williams argues that he lacked fair notice that the
avoid-lawful-arrest aggravator could be applied to the facts of
his case, and that any attempt to uphold application of the
aggravator based on the Nevada Supreme Court’s subsequent
interpretation of it would violate the Ex Post Facto Clause.
 WILLIAMS V. FILSON 55

Judicial interpretation of a criminal statute may not be
applied retroactively if the court’s decision is “unexpected
and indefensible by reference to the law which had been
expressed prior to the conduct in issue.” Bouie v. City of
Columbia, 378 U.S. 347, 354 (1964). We cannot say that the
Nevada Supreme Court’s interpretation of § 200.033(5)
constitutes an “unexpected and indefensible” break with prior
Nevada law. Williams has identified no pre-Cavanaugh
authority from Nevada courts that is inconsistent with the rule
Cavanaugh adopted, and we have found none. Indeed,
Cavanaugh’s interpretation of § 200.033(5) accords with a
1978 decision from the Florida Supreme Court interpreting a
nearly identical statute, which indicates that the interpretation
adopted by the Nevada Supreme Court in Cavanaugh reflects
a reading of the provision’s text that could reasonably have
been expected. See Riley v. State, 366 So. 2d 19, 22 (Fla.
1978).

E. Adequacy of Nevada’s Timeliness Bar

The district court held that many of Williams’ claims are
procedurally defaulted under Nevada Revised Statutes
§ 34.726. That provision imposes a general one-year
deadline for the filing of petitions for post-conviction relief.
As noted above, Williams filed his sixth and final state
petition for post-conviction relief in March 2003 to exhaust
certain of his federal claims. The Nevada Supreme Court
declined to consider most of the claims raised in the 2003
petition on the ground that they were untimely under
§ 34.726. In the district court, the State moved to dismiss the
vast majority of Williams’ claims, contending that § 34.726
is an independent and adequate state procedural rule that bars
federal habeas review. The district court granted the State’s
motion to dismiss as to many of the claims raised in
56 WILLIAMS V. FILSON

Williams’ third amended federal habeas petition. Williams
contends that § 34.726 is neither adequate to support the
judgment nor independent of federal law and therefore cannot
preclude federal review.

Under the procedural bar doctrine, a state court’s
application of a procedural rule can preclude federal habeas
review only if the rule is independent of federal law and
adequate to support the judgment. Coleman, 501 U.S. at
729–30. To be adequate, the rule must be “firmly established
and regularly followed” at the time of the purported default.
Beard v. Kindler, 558 U.S. 53, 60 (2009) (quoting Lee v.
Kemna, 534 U.S. 362, 376 (2002)). The State bears the initial
burden of pleading the existence of a state procedural ground.
Bennett v. Mueller, 322 F.3d 573, 585–86 (9th Cir. 2003). If
a state procedural ground exists, the burden then shifts to the
petitioner, who must assert “specific factual allegations that
demonstrate the inadequacy of the state procedure, including
citation to authority demonstrating inconsistent application of
the rule.” Id. at 586. If the petitioner carries his burden, the
burden shifts back to the State, which must show that the
procedural rule “has been regularly and consistently applied
in habeas actions.” Id.

The State has satisfied its initial burden by pleading the
existence of a procedural rule—§ 34.726—that, if applicable,
is adequate to support the state court’s judgment. In its order
affirming the denial of Williams’ final state habeas petition,
the Nevada Supreme Court held that the petition was
untimely because it was filed 16 years after the resolution of
Williams’ direct appeal. The court determined that Williams
could not show good cause to excuse his procedural default.
 WILLIAMS V. FILSON 57

Under Bennett, Williams bears the burden of “asserting
specific factual allegations that demonstrate the inadequacy
of the state procedure.” Id. In an attempt to meet this burden,
Williams contends that the rule was not clearly established or
consistently applied at the time of his default. He also argues
that his claims are not defaulted because the Nevada Supreme
Court addressed them on the merits, and its decision was thus
dependent on federal law.

To determine whether § 34.726 is a procedural bar to
federal review, we must examine how the rule was applied
“at the time the claim should have been raised.” Fields v.
Calderon, 125 F.3d 757, 760 (9th Cir. 1997) (quoting
Calderon v. U.S. District Court, 103 F.3d 72, 75 (9th Cir.
1996)). This date, known as the “trigger date,” id., is not as
simple to pin down here as in some of our prior cases. That
is because the one-year time bar imposed by § 34.726 did not
take effect until January 1, 1993. By that time, Williams had
already filed five state post-conviction petitions. So the only
petition that could have been rendered untimely by § 34.726
is his sixth and final petition, which he did not file until 2003.

In 2001, the Nevada Supreme Court held for the first time
that § 34.726 applies to petitioners who had already filed a
petition for post-conviction relief prior to § 34.726’s effective
date. In Pellegrini v. State, 34 P.3d 519 (Nev. 2001),
abrogated on other grounds by Rippo v. State, 423 P.3d 1084,
1097 n.12 (Nev. 2018), the court held that petitioners seeking
to file timely successive petitions had one year from
§ 34.726’s effective date in which to do so. Id. at 529. Under
Pellegrini’s holding, then, Williams had until January 1,
1994, to file his sixth and final state court petition.
58 WILLIAMS V. FILSON

Williams argues that it was not possible for him to
comply with the 1994 deadline announced in Pellegrini
because that case was not decided until 2001, long after the
deadline had passed. This argument would have greater force
if Williams had moved swiftly to comply with Pellegrini.
But he did not. Pellegrini was decided on November 15,
2001, and Williams did not file his sixth state court petition
until March 6, 2003, more than 15 months later. The district
court held that Williams’ default occurred from January 1,
1994, the date by which Williams was required to file his
successive petition, through March 6, 2003, the date he filed
his last state court petition. But even if we were to restart the
clock from the date that Pellegrini was decided, Williams’
delay was more than the applicable one-year limit, and so
constituted post-Pellegrini default. See Bennett, 322 F.3d at
579 (holding that petitioner’s substantial delay after the
California Supreme Court announced a new procedural rule
constituted a period of “continuous” default).

Williams identifies a number of cases in an attempt to
establish that § 34.726 has been inconsistently applied. We
note at the outset that two of the cases, Rippo v. State,
146 P.3d 279 (Nev. 2006), and Middleton v. Warden, 98 P.3d
694 (Nev. 2004), were decided after either default date and so
are not relevant to our analysis. See Fields, 125 F.3d at 761
(explaining that the trigger date is the date the default
occurred, not the date the rule was applied by the state court).
We note also that, if we were to restart the clock from the
date that Pellegrini was decided, all but one of the cases
Williams cites would fall outside the relevant time period.

In any event, the cases decided within either relevant time
period do little to help Williams. In Bejarano v. Warden,
929 P.2d 922 (Nev. 1996), the Nevada Supreme Court
 WILLIAMS V. FILSON 59

dismissed a successive post-conviction petition after applying
a different procedural rule, not the timeliness bar of § 34.726.
The court added in a footnote that it had considered a claim
that the petitioner’s counsel was ineffective and “determined
that [the claim] is without merit.” Id. at 926 n.2. But this
isolated and passing reference does not demonstrate that the
particular state procedural rule here at issue was inadequate.
See Moran v. McDaniel, 80 F.3d 1261, 1269 (9th Cir. 1996)
(explaining that a “brief reference to the record does not
establish that the Nevada Supreme Court inconsistently
applies that state’s procedural bar rule”). Indeed, as the
Nevada Supreme Court later explained, the Bejarano court’s
reference to the “merits” of the petitioner’s claim was not a
decision on the merits; rather, the court was clarifying that the
petitioner had failed to show prejudice sufficient to overcome
procedural bars. See State v. Eighth Judicial District Court
ex rel. County of Clark, 112 P.3d 1070, 1079 (Nev. 2005)
(County of Clark).

Williams’ reliance on Hill v. State, 953 P.2d 1077 (Nev.
1998), is equally unavailing. In Hill, the Nevada Supreme
Court reached the merits of an ineffective assistance of
counsel claim without discussing procedural bars. Although
the ineffective assistance claim was raised more than one year
after Hill’s conviction, the Nevada Supreme Court stated that
Hill’s petition was, in fact, timely filed. Id. at 1081. The
Nevada Supreme Court later clarified in Pellegrini that Hill’s
petition was timely under § 34.726 because the court
construed the petition as a timely re-filed or renewed first
petition. Pellegrini, 34 P.3d at 535.

Next, Williams cites Ford v. Warden, 901 P.2d 123 (Nev.
1995). However, we have previously held that Ford is “not
60 WILLIAMS V. FILSON

relevant” to the question whether § 34.726 has been applied
inconsistently. See Moran, 80 F.3d at 1270.

Nor does Williams’ citation of unpublished authority
undermine the adequacy of § 34.726. In Farmer v. State, No.
29120, Order Dismissing Appeal (Nev. Nov. 20, 1997), the
Nevada Supreme Court did not discuss § 34.726 because it
denied a post-conviction petition on a different procedural
ground. No. 2:98-cv-00056, Dkt. No. 136-5, at 47.
Similarly, in Nevius v. Warden, Nos. 29027, 29028, Order
Dismissing Appeal and Denying Petition for Writ of Habeas
Corpus (Nev. Oct. 9, 1996), the Nevada Supreme Court
explained that it was disposing of the petitioner’s claims on
other procedural grounds, and that its discussion of the merits
was “strictly for the purpose of demonstrating that [Nevius]
cannot overcome his procedural defaults by a showing of
actual prejudice.” A reference to the merits of a petition for
purposes of determining whether prejudice can excuse a
procedural bar does not constitute a decision on the merits
inconsistent with the application of a procedural bar. See
Moran, 80 F.3d at 1269. Finally, in Feazell v. State, No.
37789, Order Affirming in Part and Vacating in Part (Nev.
Nov. 14, 2002), the only case cited by Williams that was
decided within a year of Pellegrini, the Nevada Supreme
Court vacated the petitioner’s capital sentence and remanded
for resentencing without referencing the timeliness bar under
§ 34.726. No. 2:98-cv-00056, Dkt. No. 136-5, at 52–60. But
the Nevada Supreme Court later explained that there was
good cause to excuse Feazell’s late filing. See County of
Clark, 112 P.3d at 1080.

Even if the cited authority could be deemed sufficient to
satisfy Williams’ burden under Bennett, the State has carried
its “ultimate burden” of showing that the state rule “has been
 WILLIAMS V. FILSON 61

regularly and consistently applied” throughout both relevant
time periods. Bennett, 322 F.3d at 586. At most, the cases
Williams identifies show that the Nevada Supreme Court has
occasionally exercised its discretion to consider the merits of
untimely petitions. But “a discretionary rule can be ‘firmly
established’ and ‘regularly followed’—even if the appropriate
exercise of discretion may permit consideration of a federal
claim in some cases but not others.” Beard, 558 U.S. at
60–61. For its part, the State has identified a number of
cases, both pre- and post-Pellegrini, demonstrating that the
Nevada Supreme Court has regularly applied § 34.726 to bar
untimely petitions. These decisions show that the Nevada
Supreme Court has applied the timeliness rule “in the vast
majority” of cases to which the rule applies. Scott v. Schriro,
567 F.3d 573, 580 (9th Cir. 2009) (per curiam) (internal
quotation marks omitted).

Because Nevada Revised Statutes § 34.726 is an
independent and adequate state procedural bar to federal
review, we affirm the district court’s order dismissing the
following claims: 3, 5–7, 10–13, 15, and 17–38.

The district court also initially dismissed several of
Williams’ ineffective assistance of counsel claims—Claims
1(D), 1(E), 1(H), 1(I), and 1(J)—on the basis that they, too,
were procedurally defaulted under § 34.726. After the
Supreme Court issued its decision in Martinez, the district
court recognized that Williams might be able to show cause
for this default if he could establish ineffective assistance of
post-conviction counsel. However, the district court
concluded that these defaulted ineffective assistance of
counsel claims were also time-barred under AEDPA’s one-
year statute of limitations, and so it declined to conduct a
Martinez analysis. As explained above in section II.A,
62 WILLIAMS V. FILSON

Williams is entitled to equitable tolling of AEDPA’s statute
of limitations, so all of the claims asserted in his September
1999 amended petition are timely under AEDPA. We
therefore reverse the dismissal of Claims 1(D), 1(E), 1(H),
1(I), and 1(J) and remand for the district court to determine in
the first instance whether Williams’ procedural default is
excused under Martinez.

F. Rule 60(b) Motion

After the district court entered final judgment in 2012,
Williams filed a motion under Federal Rule of Civil
Procedure 60(b) raising a new argument based on Hurst v.
Florida, 136 S. Ct. 616 (2016). According to Williams,
Hurst established a new rule in capital sentencing
proceedings requiring the factfinder to determine that the
aggravating circumstances outweigh the mitigating
circumstances beyond a reasonable doubt. In his Rule 60(b)
motion, he argued that this new rule entitles him to relief
because the Nevada Supreme Court did not apply the beyond-
a-reasonable-doubt standard when it conducted its reweighing
analysis in 2006 and 2007. The district court denied
Williams’ motion on the ground that it was a disguised
second or successive federal habeas petition. Our court
subsequently granted Williams a certificate of appealability
on that issue.

Williams challenges the district court’s denial of his Rule
60(b) motion in Case No. 17-15768. As a backup, he has also
filed an application for leave to file a second or successive
petition under 28 U.S.C. § 2244(b)(3) in Case No. 17-71510.

We find it unnecessary to decide whether Williams’ Rule
60(b) motion was a disguised second or successive petition.
 WILLIAMS V. FILSON 63

To expedite resolution of these proceedings, we will assume
without deciding that it was not, and that the district court
was therefore permitted to rule on the motion. See Jones v.
Ryan, 733 F.3d 825, 838 (9th Cir. 2013). On the merits,
however, it is clear under Ybarra v. Filson, 869 F.3d 1016
(9th Cir. 2017), that Williams is not entitled to relief. In
Ybarra, we held that even if Hurst established the new rule
Williams urges, that rule would not apply retroactively in
cases like this one on collateral review. Id. at 1033.
Moreover, Williams is not entitled to relief for the additional
reason that his Rule 60(b) motion rests on an incorrect factual
premise. When the Nevada Supreme Court conducted its
reweighing analysis, it expressly applied the beyond-a-
reasonable-doubt standard: “After reweighing here, we
conclude beyond a reasonable doubt that absent the erroneous
aggravators the sentencing panel would have found Williams
death eligible and imposed a sentence of death.”

We affirm the district court’s denial of Williams’ Rule
60(b) motion. We deny his application to file a second or
successive petition under 28 U.S.C. § 2244(b)(3).

III. Conclusion

In Case No. 13-99002, we AFFIRM in part, REVERSE
in part, and REMAND for further proceedings. In
particular, we conclude that the district court erred by
denying Williams equitable tolling, which requires us to
reverse the court’s dismissal of Claims 1(C), 1(D), 1(E),
1(H), 1(I), 1(J), 9, and 14 and remand for further proceedings
as to those claims. We reverse the district court’s denial of
Williams’ request for an evidentiary hearing on Claim 1(F)
and remand for the district court to conduct an evidentiary
hearing as to that claim. We affirm the district court’s denial
64 WILLIAMS V. FILSON

of Williams’ third amended habeas petition in all other
respects.

In Case No. 17-15768, we AFFIRM the district court’s
denial of Williams’ motion under Federal Rule of Civil
Procedure 60(b).

In Case No. 17-71510, we DENY Williams’ application
to file a second or successive federal habeas petition.

The parties shall bear their own costs on appeal.