FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD DALE STOKLEY, No. 09-99004
Petitioner-Appellant,
v. D.C. No.
4:98-CV-00332-FRZ
CHARLES L. RYAN,
OPINION
Respondent-Appellee.
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, Senior District Judge, Presiding
Argued and Submitted
March 18, 2011—San Francisco, California
Filed September 26, 2011
Before: M. Margaret McKeown, Richard A. Paez, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge McKeown
18379
18382 STOKLEY v. RYAN
COUNSEL
Amy Krauss, Law Office of Amy B. Krauss, Tucson, Ari-
zona; Cary Sandman (argued), Waterfall, Economidis, Cald-
well, Hanshaw & Villmana, P.C., Tucson, Arizona; Jon M.
Sands, Federal Public Defender’s Office, Phoenix, Arizona,
for the petitioner-appellant.
Thomas C. Horne, Arizona State Attorney General; Jonathan
Bass (argued), Assistant Attorney General Criminal
Appeals/Capital Litigation Division, for the respondent-
appellee.
OPINION
McKEOWN, Circuit Judge:
Richard Dale Stokley was sentenced to death for the mur-
der of two thirteen-year-old girls. Stokley challenges that sen-
tence under 28 U.S.C. § 2254, arguing that he should receive
an evidentiary hearing to develop the claim that his trial coun-
sel provided ineffective assistance at sentencing by failing
adequately to investigate and present evidence that Stokley
suffered from organic brain damage at the time of the mur-
ders. Although trial counsel’s actions may seem imperfect in
hindsight, counsel undertook an extensive investigation into
Stokley’s mental health, arranged for him to be evaluated by
STOKLEY v. RYAN 18383
a neuropsychologist, and presented testimony from a psychol-
ogist and a neurologist. Under the demanding standard of Str-
ickland v. Washington, 466 U.S. 668 (1984), Stokley has not
presented a colorable claim that counsel’s actions were consti-
tutionally ineffective. We affirm the district court’s denial of
an evidentiary hearing.
BACKGROUND
On July 7, 1991, Stokley was in Elfrida, Arizona, working
as a stuntman in Independence Day celebrations. According
to Stokley, he asked Randy Brazeal to drive him to a location
where Stokley could bathe. On the way there, they picked up
Mandy and Mary, two thirteen-year-old girls Brazeal had met
earlier that evening. Stokley and Brazeal raped, beat, and
strangled the girls and dumped their bodies down an aban-
doned mine shaft.
The next day, Brazeal turned himself in to the police, and
Stokley was arrested in a nearby town. Stokley confessed his
involvement in the crimes, admitting that he raped one of the
girls, choked her to death, and stabbed both victims with his
knife. Brazeal pled guilty to second-degree murder and was
sentenced to twenty years in prison. Stokley proceeded to
trial. A jury convicted him of two counts of first degree mur-
der, one count of sexual conduct with a minor, and two counts
of kidnaping.
The state sought the death penalty. At sentencing, Stokley’s
trial counsel endeavored to establish numerous mitigating fac-
tors. Among other things, counsel presented evidence that
Stokley had a difficult childhood, that he was plagued with a
history of substance abuse, that he was intoxicated at the time
of the crimes, and that he had the ability to be rehabilitated.
Counsel also placed considerable weight on the argument that
Stokley’s “capacity to appreciate the wrongfulness of his con-
duct or to conform his conduct to the requirements of law,”
18384 STOKLEY v. RYAN
Ariz. Rev. Stat. § 13-751(G)(1), was impaired by both a per-
sonality disorder and head injuries.
Counsel relied on two medical experts to establish that
Stokley did not have the capacity to appreciate the wrongful-
ness of his conduct or to conform his conduct to the require-
ments of the law at the time of the crime. Dr. Michael
Mayron, a neurologist, testified that Stokley “suffered multi-
ple head injuries throughout his life,” including a blow to the
frontal area of his brain with a car jack and an incident in
which he suffered “a left parietal compound depressed skull
fracture with left parietal lobe contusion” after being hit with
a beer mug. Mayron believed that these injuries caused mod-
erate or severe brain damage and weakened Stokley’s ability
to control his impulses and emotions.
Dr. Larry Morris, a psychologist, testified that in his opin-
ion Stokley “experience[s] difficulties with impulse control
and poor judgment” and “tends not to study consequences
well but responds impulsively instead.” More specifically,
Morris diagnosed Stokley with borderline personality disorder
and explained that the impulsivity associated with that condi-
tion, especially as exacerbated by stress and alcohol, “make[s]
it difficult for [Stokley] to conform his behavior to . . . th[e]
law.”
In addition, counsel sent Stokley to Dr. John Barbour, who
administered at least one neuropsychological test. Barbour’s
test supplemented a report prepared by Dr. Huntley Hoffman,
who evaluated Stokley shortly before the murders. Hoffman
found that Stokley “has ‘superior’ intelligence” and that he
did not have brain damage but might suffer from a “mild to
moderate deficit” in “short and long term left brain memory.”
Under Arizona’s procedure at the time, the sentencing
judge determined the applicable aggravating and mitigating
factors. The judge found three aggravating factors—the vic-
tims were minors; Stokley committed multiple homicides; and
STOKLEY v. RYAN 18385
Stokley committed the crimes in an especially heinous, cruel,
or depraved manner. The judge determined that no factors
substantially weighed in favor of mitigation and that even if
all of the mitigating circumstances existed, “balanced against
the aggravating circumstances found to exist, they would not
be sufficiently substantial to call for leniency.” Regarding
Stokley’s claim of mental incapacity, the court concluded that
Stokley’s “capacity to appreciate the wrongfulness of his con-
duct was not significantly impaired” at the time of the crime.
In the sentencing court’s view, “[h]aving suffered head inju-
ries and having difficulty with impulse control shed[ ] little
light on [Stokley’s] conduct in this case,” because the evi-
dence “does not show that [Stokley] acted impulsively, only
criminally, with evil motive.” The court sentenced Stokley to
death.
The Arizona Supreme Court affirmed the death sentence on
direct appeal. The court reviewed Stokley’s history of head
injuries, the mental health evidence, and the testimony of
Mayron and Morris and recognized that, in appropriate cir-
cumstances, “[h]ead injuries that lead to behavioral disorders
may be considered . . . mitigating.” State v. Stokley, 898 P.2d
454, 470 (Ariz. 1995) (“Stokley I”). Although the court gave
“more mitigating weight to this element than did the trial
court,” it concluded that any “mitigating weight” from Stok-
ley’s incapacities “is substantially offset by the fact that
[Stokley] . . . has above average intelligence” and by facts
which show that Stokley “made a conscious and knowing
decision to murder the victims and was fully aware of the
wrongfulness of his actions,” “did not exhibit impulsive
behavior in the commission of his crimes,” and was able “to
control his actions” at the time. Id. at 470-71 (quotation marks
omitted). In reaching these conclusions, the court noted that
Stokley discussed killing Mandy and Mary with Brazeal
before the murders occurred and that he attempted to cover up
the crimes. See id. To support its finding of non-
impulsiveness, the court also expressly relied on Stokley’s
“comment to the interrogating [police] officer, ‘I . . . choked
18386 STOKLEY v. RYAN
’em . . . There was one foot moving though I knew they was
brain dead but I was getting scared. . . . And they just
wouldn’t quit. It was terrible.’ ” Id. at 470.
Stokley’s state post-conviction petitions argued, among
other things, that trial counsel provided ineffective representa-
tion by failing to argue “Stokley’s alleged mental incapacity
as mitigation for sentencing purposes.” The state post-
conviction relief (“PCR”) court rejected this claim on three
grounds. It held that the claim was “precluded . . . because the
Arizona Supreme Court rejected the factual basis of [the]
claim on direct appeal.” The PCR court also denied the claim
“for lack of sufficient argument” and as “meritless for lack of
a showing of prejudice.” On appeal, the state supreme court
summarily denied relief.
Stokley then filed a § 2254 petition in the district court,
raising a melange of claims. In an initial ruling, the district
court held that many of these claims were either procedurally
barred or obviously without merit. It concluded, however, that
four claims were both “properly exhausted and appropriate for
review on the merits following supplemental briefing.” Stok-
ley conceded that three of these four arguments could not sur-
vive review under the Antiterrorism and Effective Death
Penalty Act (“AEDPA”). Stokley’s remaining argument was
that his trial counsel “failed to adequately investigate [Stok-
ley’s] mental state at the time of the crime and thereby failed
to present compelling mitigation evidence at sentencing.”
Stokley sought an evidentiary hearing on this claim.
Stokley introduced the declarations of four medical experts
in support of his request for a hearing. A supplemental decla-
ration from Morris said that “additional neuropsychological
testing” was needed to pinpoint Stokley’s brain injuries and
their behavioral effects, and that he “recommended to Mr.
Stokley’s lawyers that [organic deficits] be investigated and
that consideration be given to having Mr. Stokley tested by a
neuropsychologist.” Mayron also provided a new declaration,
STOKLEY v. RYAN 18387
which stated that he “d[id] not recall” being “consulted by
Mr. Stokley’s attorneys between the time of [his] examination
of Mr. Stokley and the [sentencing hearing], and [that] if
[counsel] had contacted [Mayron, he] would have recom-
mended that Mr. Stokley be examined by a qualified neuro-
psychologist.” The other two declarations used neuro-
psychological testing to diagnose Stokley with organic dam-
age to both his frontal and parietal lobes, asserted that the pre-
viously undiscovered frontal lobe injury had severe
behavioral effects, and concluded that because of his brain
damage, Stokley was not in control of his actions at the time
of his crimes.
After considering these declarations, the district court
denied Stokley’s request for an evidentiary hearing. The dis-
trict court declined to decide whether an evidentiary hearing
was precluded by 28 U.S.C. § 2254(e)(2), which bars a hear-
ing “[i]f the applicant has failed to develop the factual basis
of a claim in State court proceedings” and the claim relies on
neither “a new rule of constitutional law” nor “a factual predi-
cate that could not have been previously discovered through
the exercise of due diligence.” See Stokley v. Ryan, No. CV-
98-332, 2009 WL 728492, at *22 (D. Ariz. Mar. 17, 2009)
(“Stokley II”). Instead, after thorough and careful review of
Stokley’s petition, the district court held that Stokley had not
presented a colorable claim of ineffective assistance of coun-
sel. See id. at *22-*30.
Regarding the ineffectiveness prong of Strickland v. Wash-
ington, 466 U.S. 668 (1984), the district court found “that
[trial] counsel undertook a reasonable investigation into
[Stokley’s] social, medical, and mental health history,” in part
by securing the opinions of Mayron and Morris and the test
administered by Barbour. Stokley II, 2009 WL 728492, at
*25. The district court rejected Stokley’s specific claim that
neuropsychological testing was necessary to an adequate pre-
sentation of mitigating evidence because “neither Dr. Morris
nor Dr. Mayron affirmatively recommended to counsel that
18388 STOKLEY v. RYAN
[Stokley] be examined only by a neuropsychologist.” Id. at
*26. The court therefore held that trial counsel “adequately
investigated [Stokley’s] mental state” and properly “used the
experts . . . to argue that [Stokley] was impulsive and that his
ability to conform his conduct to the requirements of law was
substantially impaired.” Id. at *27. The district court also held
that Stokley could not prove prejudice from any ineffective-
ness on the part of trial counsel. See id. at *28-*30. It did,
however, issue a certificate of appealability regarding Stok-
ley’s claim of ineffective assistance at sentencing, see id. at
*30-*31, and Stokley appealed.
[1] Following oral argument in this appeal, the Supreme
Court decided Cullen v. Pinholster, ___ U.S. ___, 131 S. Ct.
1388 (2011). The Court held that, when a petitioner seeks
habeas relief under 28 U.S.C. § 2254(d)(1), federal courts are
restricted to the state court record when deciding claims pre-
viously adjudicated on the merits by the state courts. In sup-
plemental briefing, the state argues that Pinholster applies to
preclude consideration of the declarations Stokley supplied
for the first time in federal court. Stokley, by contrast, now
contends that his federal claim of ineffective assistance at sen-
tencing is fundamentally new and different from the ineffec-
tive assistance claim presented to the state courts in his
supplemental petition. If accepted, Stokley’s argument would
mean that Pinholster does not apply to his federal claim.
[2] We need not determine whether Pinholster bars the
consideration of Stokley’s new evidence, because the result is
the same in either case. If Pinholster applies, it directly bars
Stokley from receiving the only relief he seeks—a hearing to
present new evidence in federal court. And if Stokley is cor-
rect that Pinholster does not apply because his federal ineffec-
tive assistance claim was never presented to the state courts,
relief still evades him. Even assuming both that Stokley can
show cause and prejudice for his failure to present the claim
to the state courts and that he has satisfied the diligence
requirement of § 2254(e)(2), Stokley has not presented a col-
STOKLEY v. RYAN 18389
orable claim of ineffective assistance of counsel. The net
result is that Stokley is not entitled to an evidentiary hearing
even if we may consider the evidence presented for the first
time to the district court.
ANALYSIS
I. THE RULE IN PINHOLSTER
AEDPA provides that a federal habeas application may be
“granted with respect to any claim that was adjudicated on the
merits in State court proceedings” if the adjudication of that
claim “resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1). In Pinholster, the Supreme
Court held that § 2254(d)(1) “requires an examination of the
state-court decision at the time it was made” and on the same
record. See 131 S. Ct. at 1398. As the Court explained, “[i]t
would be strange to ask federal courts to analyze whether a
state court’s adjudication resulted in a decision that unreason-
ably applied federal law to facts not before the state court.”
Id. at 1399.
Pinholster also held that this bar on new evidence is coter-
minous with the scope of § 2254(d). If a petitioner presents a
claim that was not adjudicated on the merits by the state
courts, federal review is not necessarily limited to the state
record. See id. at 1401. Such is the case, for instance, when
a petitioner presents a new and different claim in federal
court. See id. at 1401 n.10. In that situation, “the discretion of
federal habeas courts to consider new evidence,” id. at 1401,
is instead cabined by the requirement in § 2254(e)(2) that the
petitioner must have attempted “to develop the factual basis
of [the] claim in State court.”
The Court in Pinholster left at least two questions unre-
solved. The Court expressly reserved the issue of “where to
18390 STOKLEY v. RYAN
draw the line between new claims and claims adjudicated on
the merits” by the state courts. Pinholster, 131 S. Ct. at 1401
n.10. Put another way, Pinholster leaves open the question of
how to distinguish between a claim that was exhausted in
state court and a claim that is transformed by new evidence
into a different and novel contention presented for the first
time in federal court. The Court in Pinholster also had no
occasion to speak to the role that new evidence plays in fed-
eral habeas proceedings on those rare occasions when an evi-
dentiary hearing is proper.
These unresolved issues are potentially pertinent to our res-
olution of this case. In his opening brief, Stokley assumed that
his ineffective assistance claim had been fairly presented to
the state court even though “[n]one of the facts presented in
support of the claim were presented in state court.” Indeed, in
the district court, Stokley affirmatively argued that his claim
was exhausted, and the state agreed. Stokley also posited that
he satisfied the requirements of § 2254(e)(2) and therefore
should be permitted to supplement the record.
After Pinholster, we requested supplemental briefing. Not
surprisingly, Stokley shifted his position and now argues that
his federal petition presented a new claim that had not yet
been adjudicated, such that he remains entitled to an evidenti-
ary hearing. Stokley relies on pre-Pinholster cases in which
we provided a framework for assessing whether a claim is
unexhausted because new evidence fundamentally altered the
factual underpinnings of the claim. See, e.g., Beaty v. Stewart,
303 F.3d 975, 989-90 (9th Cir. 2002); Weaver v. Thompson,
197 F.3d 359, 364 (9th Cir. 1999) (citing Vasquez v. Hillery,
474 U.S. 254, 260 (1986)). Stokley argues that, under this
framework, the ineffective assistance claim in his federal peti-
tion is fundamentally different from the claim he presented to
the state courts.
We decline to reach this issue or to decide the antecedent
question of whether Pinholster impliedly overruled our line of
STOKLEY v. RYAN 18391
cases interpreting the “fundamentally altered” standard. We
do so because Stokley is not entitled to relief if Pinholster
applies, and he is similarly not entitled to relief even if we
construe his federal claim as unexhausted such that we may
consider the supplemental evidence he offered to the district
court.1 In addition, although evidentiary hearings were rare
even before Pinholster, the circuits had been essentially uni-
form in holding that in the appropriate case new evidence
from such a hearing could be considered in determining
whether a claim could survive review under § 2254(d). See
Pinholster, 131 S. Ct. at 1417 (Sotomayor, J., dissenting). It
was against this backdrop that Stokley filed his habeas peti-
tion and litigated it in the district court. Recognizing that Pin-
holster dramatically changed the aperture for consideration of
new evidence, and further recognizing that this is a capital
case, we believe it prudent to consider alternative avenues for
resolution.
II. IF PINHOLSTER APPLIES: REVIEW RESTRICTED TO THE
STATE RECORD
In this section, we assume that Stokley’s state petition
exhausted the sentencing-phase ineffective assistance claim in
his federal petition, because the essence of the claim—that
counsel provided ineffective assistance at sentencing by fail-
ing adequately to investigate and argue Stokley’s mental
1
There is also a third possibility—that Pinholster does not apply
because one or both of the PCR court’s enunciated procedural holdings
constitutes an adequate and independent state bar to relief. See, e.g., Har-
ris v. Reed, 489 U.S. 255, 264 n.10 (1989) (“[T]he adequate and indepen-
dent state ground doctrine requires the federal court to honor a state
[procedural] holding that is a sufficient basis for the state court’s judg-
ment, even when the state court also relies on federal law.”). Because nei-
ther party made this argument on appeal, we assume without deciding that
the state courts adjudicated Stokley’s ineffective assistance claim on the
merits. See, e.g., Ocampo v. Vail, ___ F.3d ___, 2011 WL 2275798, at *7
n.11 (9th Cir. June 9, 2011) (declining to consider a potential procedural
default not raised by the state).
18392 STOKLEY v. RYAN
health as a mitigating factor—remains the same. Pinholster
therefore applies, with two consequences. Our review is con-
fined to the record before the state courts. Pinholster, 131 S.
Ct. at 1398. As the Court bluntly put it, “evidence introduced
in federal court has no bearing on § 2254(d)(1) review.” Id.
at 1400. Pinholster’s limitation on the consideration of Stok-
ley’s new evidence—the proffered testimony of the neuropsy-
chologist and other medical experts—in federal habeas
proceedings also forecloses the possibility of a federal eviden-
tiary hearing, the only relief Stokley currently seeks. If appli-
cable, Pinholster therefore requires us to affirm the denial of
Stokley’s petition.
III. IF PINHOLSTER DOES NOT APPLY: REVIEW OF ALL THE
EVIDENCE
[3] We now proceed on the alternate assumption that Pin-
holster does not bar Stokley from presenting new evidence
because Stokley’s federal ineffective assistance of counsel
claim was never presented to the state courts. Even consider-
ing the new evidence, we conclude that Stokley has not pre-
sented a colorable claim of ineffective assistance of counsel.
Because this conclusion bars Stokley from receiving an evi-
dentiary hearing, we only briefly acknowledge—and do not
decide—the predicate hurdles Stokley would need to over-
come for us to consider his claim, namely whether he could
show cause and prejudice for his failure to exhaust and
whether he satisfied the diligence requirement of
§ 2254(e)(2).
A. FURTHER PROCEDURAL MATTERS
When a petitioner fails to present a federal claim to the
state courts, the claim is unexhausted, and the petitioner must
generally return to state court. See, e.g., Quezada v. Scribner,
611 F.3d 1165, 1168 (9th Cir. 2010) (published order). But
“[a] claim is procedurally defaulted ‘if the petitioner failed to
exhaust state remedies and the court to which the petitioner
STOKLEY v. RYAN 18393
would be required to present his claims in order to meet the
exhaustion requirement would now find the claims procedur-
ally barred.’ ” Beaty, 303 F.3d at 987 (quoting Coleman v.
Thompson, 501 U.S. 722, 735 n.1 (1991)). In this case,
assuming that the federal version of Stokley’s ineffective
assistance claim was never presented to the state courts, those
courts would find the claim procedurally barred because Stok-
ley failed to raise it “in [a] previous collateral proceeding.”
Ariz. R. Crim. P. 32.2(a)(3); see also Stewart v. Smith, 536
U.S. 856, 859-61 (2002) (holding that Rule 32.2(a)(3) pro-
vides an independent and adequate state procedural bar);
Stewart v. Smith, 46 P.3d 1067, 1071 (Ariz. 2002) (“The
ground of ineffective assistance of counsel cannot be raised
repeatedly.”).
Because Stokley’s claim would be procedurally barred, he
would satisfy “the technical requirements for exhaustion;
there are no state remedies any longer ‘available’ to him.”
Coleman, 501 U.S. at 732 (citations omitted). Federal habeas
review of the claim, however, is precluded “unless [Stokley]
can demonstrate cause for the default and actual prejudice as
a result of the alleged violation of federal law.” Id. at 750.2
Since Stokley seeks an evidentiary hearing, he must also dem-
onstrate that he diligently attempted to develop the factual
basis of his claim in state court. See 28 U.S.C. § 2254(e)(2);
Williams v. Taylor, 529 U.S. 420, 436-37 (2000).3
Stokley argues that the actions of the state and his post-
conviction counsel allow him to surmount both of these barri-
2
Coleman also includes an exception for situations in which “failure to
consider [defaulted] claims will result in a fundamental miscarriage of jus-
tice.” 501 U.S. at 750. Stokley does not contend that this exception
applies.
3
Stokley does not argue that his claim rests on “a new rule of constitu-
tional law, made retroactive to cases on collateral review by the Supreme
Court” or that the evidence he presented to the federal court could not
have been discovered during his state proceedings. See 28 U.S.C.
§ 2254(e)(2)(A)(i)-(ii).
18394 STOKLEY v. RYAN
ers, and we recognize that, at a minimum, Stokley was placed
in an untenable and unenviable situation during the state post-
conviction proceedings. Harriette Levitt, Stokley’s appointed
counsel, filed a cursory PCR petition with the state courts.
After Stokley filed complaints against Levitt, Levitt withdrew
from the case, and Stokley secured the representation of Carla
Ryan, who sought to file a more extensive petition on Stok-
ley’s behalf. At the state’s urging, however, the PCR court
reconsidered its order allowing Levitt to withdraw and reap-
pointed her to represent Stokley for the remainder of the post-
conviction proceedings. Shortly after her reappointment,
Levitt filed a brief arguing that all of the issues raised by
Ryan lacked merit. Upon further reflection and at the express
invitation of the state supreme court, Levitt reconsidered in
part and filed a supplemental petition including the claim of
ineffective assistance of counsel at sentencing initially
advanced by Ryan. The supplemental petition was as vague
as Levitt’s initial petition, and it failed to comply with Ari-
zona Rule of Criminal Procedure 32.5, which requires peti-
tioners to submit “[a]ffidavits, records, or other evidence
currently available to the defendant” in support of claims to
post-conviction relief.
[4] We also recognize, however, that there is “no constitu-
tional right to an attorney in state post-conviction proceed-
ings.” Coleman, 501 U.S. at 752. Thus, in order to have any
hope of meeting the cause and prejudice standard, Stokley
must show that the actions taken by Levitt and the state “rose
to the level of an external objective factor causing the proce-
dural default.” Smith v. Baldwin, 510 F.3d 1127, 1147 (9th
Cir. 2007) (en banc). This is a standard met in only excep-
tional cases: “[A]ny attorney error in post-conviction proceed-
ings is generally attributable to the petitioner himself.” Id.
Nevertheless, because Stokley presented a potentially color-
able argument that he meets this standard, we assume without
deciding that Stokley can show cause and prejudice for his
failure to present his claim to the state courts.4 We similarly
4
We note that a case pending before the Supreme Court raises issues
regarding cause and prejudice claims arising from the actions of post-
STOKLEY v. RYAN 18395
assume that the diligence requirement in § 2254(e)(2) does
not prevent Stokley from receiving an evidentiary hearing.
See West v. Ryan, 608 F.3d 477, 485 (9th Cir. 2010) (making
the same assumption); see also Williams, 529 U.S. at 444
(suggesting that the standard for satisfying § 2254(e)(2) is
similar to the standard necessary to establish cause and preju-
dice).
B. THE STRICKLAND STANDARD
Proceeding on those assumptions, we review Stokley’s
request for a hearing. We may overturn the district court’s
“ultimate denial of an evidentiary hearing” only if that denial
constituted an abuse of discretion. Earp v. Ornoski, 431 F.3d
1158, 1166 (9th Cir. 2005).
[5] To receive an evidentiary hearing, Stokley must show
that he has “a colorable claim of ineffective assistance.” Fair-
bank v. Ayers, ___ F.3d ___, 2011 WL 3487027, at *6 (9th
Cir. Aug. 10, 2011) (internal quotation marks omitted). Stok-
ley must, in other words, demonstrate that “a hearing could
enable [him] to prove . . . factual allegations” that, “if true,
would entitle [him] to federal habeas relief.” Id. (quoting
Schriro v. Landrigan, 550 U.S. 465, 474 (2007)).
[6] Because Stokley’s claim is premised on the alleged
ineffective assistance of counsel, he must satisfy the two-
pronged test in Strickland. Specifically, Stokley must present
a colorable claim “that (1) ‘counsel’s representation fell
below an objective standard of reasonableness’ and (2) there
is a ‘reasonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have been
different.’ ” West, 608 F.3d at 485-86 (quoting Strickland,
conviction counsel. See Maples v. Thomas, 131 S. Ct. 1718 (2011) (order
granting certiorari). Since we do not address the substance of similar
claims, we see no need to await the Supreme Court’s decision.
18396 STOKLEY v. RYAN
466 U.S. at 687-88). “ ‘Surmounting [this] high bar is never
an easy task.’ ” Harrington v. Richter, ___ U.S. ___, ___, 131
S. Ct. 770, 788 (2011) (quoting Padilla v. Kentucky, 599 U.S.
___, ___, 130 S. Ct. 1473, 1485 (2010)). Stokley cannot over-
come the first hurdle—that “counsel’s representation fell
below an objective standard of reasonableness.”5 Strickland,
466 U.S. at 687-88.
C. INEFFECTIVE ASSISTANCE
In assessing counsel’s performance, we “must apply a
strong presumption that counsel’s representation was within
the wide range of reasonable professional assistance.” Har-
rington, 131 S. Ct. at 787 (internal quotation marks omitted).
We take “every effort to eliminate the distorting effects of
hindsight,” Earp, 431 F.3d at 1174 (internal quotation marks
omitted), “give the attorneys the benefit of the doubt,” and
“entertain the range of possible reasons . . . counsel may have
had for proceeding as they did,” Pinholster, 131 S. Ct. at 1407
(internal quotation marks and alteration omitted). Thus,
“[e]ven under de novo review,” the standard we apply “is a
most deferential one.” Harrington, 131 S. Ct. at 788. “The
question is whether [counsel’s] representation amounted to
incompetence under prevailing professional norms, not
whether it deviated from best practices or most common cus-
tom.” Id. (internal quotation marks omitted).
[7] Stokley’s trial counsel undertook an extensive investi-
gation into mitigating factors before sentencing. Most signifi-
cant to this appeal, counsel secured two medical opinions
regarding Stokley’s mental health. Morris examined Stokley
at counsel’s request and diagnosed him with borderline per-
sonality disorder. That disorder, Morris told the sentencing
court, means that Stokley has “difficulties with impulse con-
trol and poor judgment.” Morris characterized these difficul-
5
We also note that the PCR court held that Stokley’s ineffective assis-
tance claim “is meritless for lack of a showing of prejudice.”
STOKLEY v. RYAN 18397
ties as “severe” and stated that Stokley’s borderline
personality disorder would lead to “impulsivity” and “out-
bursts” of anger. He also expressly tied Stokley’s impulse
control problems to Arizona’s mitigation statute by testifying
that Stokley was impaired in his “capacity to appreciate the
wrongfulness of his conduct . . . at the time of the [crime].”
[8] Mayron’s neurological examination, meanwhile, dem-
onstrated that Stokley’s brain was “moderately to severely
impaired” as a result of numerous head injuries. Mayron diag-
nosed Stokley with “a permanent mild right hemiparesis6 and
hemisensory deficit” as well as “permanent post-concussion
syndrome memory impairment and disturbance [characterized
by] increased difficulty with impulse control.” As this diagno-
sis suggests, Mayron opined that “[h]ead injuries of [the]
severity [of Stokley’s] are invariably related to” problems
with “concentration, attention span . . . , memory, personality
disturbance, mood disturbance, irritability, depression, [and]
impulse control disturbance.” Stokley’s “ability to make good
judgments,” his “[e]motional control,” and his “ability to plan
ahead and to reflect” are all impaired.
[9] Counsel also knew that at least two neuropsychological
tests had been performed on Stokley at the time of sentencing.
Barbour administered one such test at counsel’s behest. Hoff-
man’s report based on his pre-crime examination of Stokley,
meanwhile, found that Stokley’s performance on a neuropsy-
chological test “d[id] not indicate [organic] brain damage.”
[10] This record compels the conclusion that counsel gen-
erally undertook “active and capable advocacy” on Stokley’s
behalf. Harrington, 131 S. Ct. at 791. In particular, both Mor-
ris and Mayron testified at sentencing in ways that directly
supported Stokley’s case in mitigation. Under Ariz. Rev. Stat.
6
“Hemiparesis” is a medical term used to refer to reduced muscular
strength on one side of the body and is frequently associated with damage
to the portion of the brain charged with controlling that part of the body.
18398 STOKLEY v. RYAN
§ 13-751(G)(1), a defendant demonstrates the existence of a
mitigating circumstance if he proves that his “capacity to
appreciate the wrongfulness of his conduct or to conform his
conduct to the requirements of law was significantly
impaired” at the time of the offense. Morris expressly testified
that this mitigating factor was satisfied and told the sentenc-
ing court that Stokley had “severe” problems with impulse con-
trol.7 Mayron said that Stokley had “moderate to severe” brain
damage and linked Stokley’s impulsivity to that damage. In
short, counsel oversaw the investigation of Stokley’s mental
health from psychological, neurological, and neuropsy-
chological perspectives and elicited testimony that both
explicitly and implicitly concluded that Stokley’s mental
health satisfied the relevant mitigating factor.
[11] Stokley nevertheless claims that, despite counsel’s
emphasis on his mental health, counsel was required to order
an entire battery of neuropsychological tests. We reject this
argument. Counsel had no reason to believe that step would
be necessary. After examining Stokley, Morris did suggest
that Stokley be seen by either a neurologist or a neuropsy-
chologist, and counsel took that advice by sending Stokley to
Mayron, a neurologist. Mayron later provided the mirror-
image observation that analysis of “[b]ehavioral changes”
occurs “by referral to a psychologist or a neuropsychologist.”
Although that piece of advice was tendered at the sentencing
hearing, counsel had already followed it, too, by having Mor-
ris, a psychologist, examine Stokley. In short, neither of the
experts counsel hired unequivocally stated that Stokley should
be examined by a neuropsychologist—and counsel was under
no obligation to seek neuropsychological testing in the
absence of any such recommendation. See Babbitt v. Calde-
ron, 151 F.3d 1170, 1174 (9th Cir. 1998) (“[C]ounsel did
retain medical experts whom he thought well-qualified. The
7
While Morris did concede that he was “unable to evaluate” Stokley’s
state of mind at the time of the crime, this concession stemmed from Stok-
ley’s own statements, not from any failing on counsel’s part.
STOKLEY v. RYAN 18399
experts he had retained did not state that they required the ser-
vices of . . . additional experts. There was no need for counsel
to seek them out independently.”).
[12] In fact, it is not even clear that further neuropsy-
chological testing would have been to Stokley’s advantage.
Hoffman’s report said that a previous neuropsychological
examination revealed no brain damage.8 Counsel was there-
fore in a position reasonably to conclude that additional
neuropsychological testing could undermine Stokley’s case
rather than aid it.
Stokley also argues that, without neuropsychological test-
ing, counsel was unable to demonstrate the link between Stok-
ley’s brain injuries and his behavior at the time of the offense.
But Mayron’s report and testimony at sentencing expressly
linked the two; Mayron stated that impulsivity “invariably”
followed from the sort of brain injury that he diagnosed. Thus,
although Stokley cites our decision in Caro v. Woodford, 280
F.3d 1247, 1258 (9th Cir. 2002), for the proposition that evi-
dence that “explain[s] the effects [of] physiological defects”
on a petitioner’s behavior is crucial, counsel put precisely that
kind of evidence before the sentencing court.9 For that reason,
8
Stokley argues that Hoffman misinterpreted the results of the neurop-
sychological test he administered and that those results were actually,
under newer standards, positive for brain damage. But at least one of the
experts hired by trial counsel reviewed the Hoffman report without noting
any irregularity in Hoffman’s conclusions. Hoffman’s alleged error thus
does not provide a basis for impugning counsel’s effectiveness. See, e.g.,
Sims v. Brown, 425 F.3d 560, 585-86 (9th Cir. 2005) (“[A]ttorneys are
entitled to rely on the opinions of mental health experts, and to impose a
duty on them to investigate independently of a request for information
from an expert would defeat the whole aim of having experts participate
in the investigation.” (internal quotation marks omitted)).
9
We note that this passage occurs in Caro’s discussion of the prejudice
prong of Strickland. Our ineffectiveness holding in Caro was premised on
counsel’s failures “to seek out an expert to assess the damage done by
[the] poisoning of Caro’s brain,” to provide “mental health experts with
information needed to develop an accurate profile of the defendant’s men-
tal health,” and to present testimony that the petitioner was abused as a
child constituted ineffective assistance. See 280 F.3d at 1254-55. Stokley’s
trial counsel committed none of these failings.
18400 STOKLEY v. RYAN
and because counsel could have reasonably believed that
additional neuropsychological testing was neither necessary
nor advantageous, we hold that counsel’s failure to seek such
testing did not constitute ineffective assistance.
Stokley’s contention that counsel acted ineffectively by
failing to follow up with Mayron is similarly unpersuasive.
Mayron now claims that, had he been consulted by counsel
after his examination of Stokley and before the sentencing
hearing, he “would have recommended that Mr. Stokley be
examined by a qualified neuropsychologist.” This statement
contradicts Mayron’s testimony at sentencing that either a
psychologist or a neuropsychologist would suffice. More
importantly, Mayron does not allege that he actually made
this recommendation to counsel, and previous neuropsy-
chological testing of Stokley led to a report that undermined
Stokley’s case by finding no organic brain damage. We are in
no position to say that counsel’s failure affirmatively to seek
out Mayron’s advice amounted to constitutionally ineffective
assistance. See, e.g., Murtishaw v. Woodford, 255 F.3d 926,
946 (9th Cir. 2001) (“[C]ounsel’s actions are not deficient just
because, through ‘the fabled twenty-twenty vision of hind-
sight,’ a better course of action becomes apparent.”) (quoting
Campbell v. Wood, 18 F.3d 662, 673 (9th Cir. 1994) (en
banc)); Babbitt, 151 F.3d at 1174 (rejecting ineffective assis-
tance “arguments predicated upon showing what defense
counsel could have presented, rather than upon whether coun-
sel’s actions were reasonable”).
[13] In sum, “[t]his is not a case in which the defendant’s
attorneys failed to act while potentially powerful mitigating
evidence stared them in the face.” Bobby v. Van Hook, ___
U.S. ___, ___, 130 S. Ct. 13, 19 (2009). “It is instead a case,
like Strickland itself, in which defense counsel’s ‘decision not
to seek more’ mitigating evidence from the defendant’s back-
ground ‘than was already in hand’ fell ‘well within the range
of professionally reasonable judgments.’ ” Id. (quoting Strick-
land, 466 U.S. at 699). Even more importantly, it is a case
STOKLEY v. RYAN 18401
where counsel pursued the brain damage and mental health
strategy. Stokley accordingly has not presented a colorable
claim of ineffective assistance of counsel.
CONCLUSION
Regardless of whether Pinholster bars consideration of
Stokley’s new evidence, Stokley is not entitled to habeas
relief. If Pinholster applies, it precludes the only relief Stok-
ley seeks, and even if we may consider the evidence Stokley
introduced in the district court, Stokley has failed to present
a colorable claim of ineffective assistance of counsel. We
accordingly AFFIRM the district court’s denial of relief.10
10
We decline Stokley’s request to expand the certificate of appealability
to encompass the claim that counsel ineffectively presented a mental state
defense at trial. Stokley acknowledges that this precise claim was not
included in his state petition. He nonetheless argues that the district court
erred by finding the claim to be unexhausted because it is substantively
identical to his sentencing-phase ineffective assistance claim. We cannot
agree. Stokley contends in his sentencing-phase claim that counsel should
have presented evidence to demonstrate that brain damage prevented him
from controlling his impulses at the time of the crime. Under Arizona law,
however, that type of evidence is inadmissible at trial: “An expert witness
may not testify specifically as to whether a defendant was or was not act-
ing reflectively at the time of a killing.” State v. Christensen, 628 P.2d
580, 583-84 (Ariz. 1981). The evidence to be weighed when determining
whether a different result would have obtained at trial but for counsel’s
ineffectiveness is very different from the evidence to be weighed when
determining whether a different sentence would have resulted but for
counsel’s ineffectiveness. We accordingly conclude that the two claims
are undebatably distinct. See Lopez v. Schriro, 491 F.3d 1029, 1039-40
(9th Cir. 2007).