Kevin Miles v. Charles Ryan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

KEVIN ARTICE MILES, No. 10-99016
Petitioner-Appellant,
D.C. No.
v. 4:01-cv-00645-RCC

CHARLES L. RYAN , Director,
Arizona Department of ORDER AND
Corrections, AMENDED
Respondent-Appellee. OPINION

Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding

Argued and Submitted
February 16, 2012—San Francisco, California

Filed August 27, 2012
Amended March 25, 2013

Before: Susan P. Graber, Marsha S. Berzon, and
Richard C. Tallman, Circuit Judges.

Order;
Opinion by Judge Graber;
Partial Concurrence and Partial Dissent by Judge Berzon
2 MILES V . RYAN

SUMMARY*

Habeas Corpus/Death Penalty

The panel affirmed the district court’s denial of a 28
U.S.C. § 2254 habeas corpus petition challenging a capital
sentence for felony murder, dangerous kidnapping and
dangerous armed robbery in connection with a car-jacking.
The panel held that counsel did not provide ineffective
assistance during sentencing, despite petitioner Miles’s
claims that counsel should have focused on drug addiction as
a mitigating factor, inadequately prepared the defense expert
psychologist regarding Miles’s drug use and mental state, and
inadequately investigated Miles’s social history. The panel
concluded that counsel adopted a permissible sentencing
strategy supported by mitigation witnesses, and that
portraying Miles as a crazed drug addict with a sordid past
would have contradicted that chosen strategy. The panel
further concluded that, assuming that Martinez v. Ryan, 132
S. Ct. 1309 (2012), applied to a petitioner who had counsel in
his post-conviction relief proceeding and raised a trial
ineffective assistance claim at that time, Miles would not be
entitled to a remand for consideration of the above claims in
light of new evidence, unless he could establish ineffective
assistance of post-conviction counsel and that the trial
ineffective assistance claim is a substantial one. The panel
explained that the claim was not substantial merely because
current counsel has now uncovered new mitigating
information beyond that presented to the state court by post-
conviction relief counsel.

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

Judge Berzon concurred in part and dissented in part. She
agreed that Miles had not shown entitlement to relief based
on counsel’s alleged deficiencies in presenting addiction as a
mitigating factor and in preparing the expert to testify. She
did not agree with the conclusion that Miles is not entitled to
relief based on counsel’s deficient investigation of his
troubled background. Because that decision was contrary to
clearly established Federal law, she would review de novo
and conclude that Miles’s counsel was constitutionally
deficient and that Miles was prejudiced as a result.

COUNSEL

Sean Bruner, Law Office of Sean Bruner, Ltd., Tucson,
Arizona; and Timothy M. Gabrielsen, Assistant Federal
Public Defender, Tucson, Arizona, for Petitioner-Appellant.

Jonathan Bass, Assistant Attorney General, Criminal
Appeals/Capital Litigation Section, Tucson, Arizona, for
Respondent-Appellee.

ORDER

The opinion filed on August 27, 2012, slip op. 9797, and
appearing at 691 F.3d 1127, is amended as follows:

On slip opinion page 9827, replace lines 6 through 15
with the following:

Even though Petitioner has now uncovered,
during federal habeas proceedings, some new
information that was not presented to the state
4 MILES V . RYAN

courts during post-conviction review, that
evidence is insufficient to demonstrate that his
lawyer’s investigation during the state-court
proceedings was objectively unreasonable.
As detailed above, his counsel conducted an
extensive investigation during post-conviction
review, obtaining a psychologist to perform
further testing and hiring an investigator who
visited Petitioner’s home town and
interviewed many people who knew him and
his mother.

With this amendment, Judges Graber and Tallman have
voted to deny Petitioner-Appellant’s petition for rehearing
and petition for rehearing en banc. Judge Berzon has voted
to grant the petition for rehearing and petition for rehearing
en banc.

The full court was advised of the petition for rehearing en
banc. A judge of the court called for a vote on whether to
rehear the matter en banc. The majority of the nonrecused
active judges failed to vote in favor of en banc rehearing.

Petitioner-Appellant’s petition for rehearing and petition
for rehearing en banc are DENIED. No further petitions for
rehearing or for rehearing en banc shall be entertained.
 MILES V . RYAN 5

OPINION

GRABER, Circuit Judge:

Petitioner Kevin Artice Miles appeals the district court’s
denial of his habeas petition, brought pursuant to 28 U.S.C.
§ 2254. Petitioner challenges only his capital sentence; he
does not challenge his underlying felony murder conviction,
arising from his role in a car-jacking.1 Petitioner argues that
his counsel was ineffective at sentencing because she failed
to focus on Petitioner’s drug addiction (rather than on
intoxication), enlisted an unqualified expert, and failed to
investigate Petitioner’s social history thoroughly enough.

We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and
2253, and we affirm.

FACTUAL AND PROCEDURAL HISTORY

A. The Crime

On an afternoon late in 1992, Petitioner was standing on
a street corner in Tucson, Arizona, with Levi Jackson and
Ray Hernandez. Jackson was carrying a pistol that the three

1
Petitioner briefed several additional issues that the district court
declined to certify for appeal. Most of those issues relate to sentencing,
but one challenges the conviction. W e have examined all the uncertified
issues, and none meets the standard for granting a certificate of
appealability. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (stating
that a court should grant a certificate of appealability only when a habeas
petitioner has demonstrated “that reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have been resolved in
a different manner or that the issues presented were adequate to deserve
encouragement to proceed further” (internal quotation marks omitted)).
6 MILES V . RYAN

of them had just obtained together; he had told Petitioner and
Hernandez of his plan to commit a car-jacking. Specifically,
according to Petitioner’s post-arrest statement to the police,
Jackson had told them that he was “gonna get somebody’s
car, take ‘em off in the middle of the desert, and shoot ‘em.”
At the time, Jackson and Hernandez were both 16 years old.
Petitioner was 24 years old.

When Patricia Baeuerlen drove up and stopped at the
corner, Jackson approached her car and asked for “a light.”
When she turned to reach her cigarette lighter, Jackson
pointed the weapon at her and told her to move over. He
unlocked the car to allow Petitioner and Hernandez to enter
and sit in the rear. While Jackson drove the car out to the
desert, Hernandez held the pistol, but Petitioner also held it at
some point. They drove Baeuerlen out of the city, into the
desert, and stopped at a dirt road. There, Jackson told
Baeuerlen to get out of the car and take off her shoes and
jacket. She obeyed. After taunting and harassing Baeuerlen
for five to ten minutes, Jackson suddenly shot her in the
chest. Baeuerlen died as a result of the gunshot. According
to testimony presented at trial and sentencing, Jackson—not
Petitioner—shot Baeuerlen as he and Petitioner were walking
away from Baeuerlen and returning to the car. Throughout
the ordeal, starting with the drive to the desert, Baeuerlen was
pleading for her life.

After the shooting, Jackson, Petitioner, and Hernandez
drove away. According to Petitioner’s post-arrest statement,
he thought that Baeuerlen was still alive when they left her in
the desert. No one sought help for Baeuerlen. Later the same
day, Petitioner used Baeuerlen’s ATM card, and a PIN that he
had found in her belongings, to take money out of her bank
account. The next day, Petitioner drove Baeuerlen’s car to
 MILES V . RYAN 7

Phoenix, where he went shopping at malls, exchanged
Baeuerlen’s children’s Christmas presents for other goods,
and went drinking with old friends. Petitioner told those
friends about the murder, insisting that he did not pull the
trigger, but smiling and laughing as he related the events.

B. Arrest and Interrogation

In the early hours of the following morning, that is, the
second day after the murder, police arrested Petitioner in
Chandler, Arizona, following a high-speed chase in
Baeuerlen’s car. The police found Baeuerlen’s ATM card,
credit card, jewelry, and other personal items in his
possession. Later that morning, Tucson detectives began a
tape-recorded interrogation that lasted about five hours.
During the interrogation, Petitioner initially explained his
possession of the car by telling the detectives two different
stories, neither of which placed him at the scene of the
murder. But, after several hours of interrogation, Petitioner
admitted to his involvement in the murder. Specifically, he
admitted to knowing of Jackson’s plan to car-jack and shoot
someone, to participating in obtaining the pistol with Jackson
and Hernandez, to holding the weapon at some point during
the drive out to the desert, and to watching Jackson shoot
Baeuerlen.

C. Trial and Sentencing

Soon after Petitioner’s arrest, Barbara Sattler was
appointed as his counsel and represented him through trial
and sentencing. After a jury convicted Petitioner of first-
degree felony murder, dangerous kidnapping, and dangerous
8 MILES V . RYAN

armed robbery,2 the trial court reviewed a pre-sentence report
(“PSR”) and held a sentencing hearing.

The PSR states that the crime occurred at around 1:30
p.m. and that Petitioner reported having used crack cocaine
“four or five hours earlier” and not having slept the night
before. The PSR also contains statements from Petitioner that
he expected to get money from the car-jacking and that he
wanted to commit another robbery with the pistol. The PSR
repeats Petitioner’s assertions that he did not believe that
Jackson would kill Baeuerlen and that Petitioner thought that
Jackson would have killed him if he had tried to stop the
murder.

The social history section of the PSR contains the
following information. Petitioner was adopted at the age of
4 months. His adoptive mother was an alcoholic who
nevertheless maintained employment, eventually rising past
jobs as a waitress and cook to become a nursing home
administrator. Although Petitioner is black, his adoptive
mother was white, which caused some degree of social
problems; those problems grew worse when Petitioner and his
mother moved to a more affluent neighborhood. Petitioner
found a way to fit in by becoming a “class clown” and by
playing basketball. Indeed, despite poor grades, he graduated
from high school and won a basketball scholarship to a Bible
college, but he dropped out of college after only a week.
Petitioner later served in the Navy, where he was disciplined
for substance abuse and assault before receiving an other-

2
As noted, none of these convictions is at issue here.
 MILES V . RYAN 9

than-honorable discharge. He also married and had a child,
though he later grew apart from his wife and began using
drugs. His wife eventually left him, leading him to be evicted
from their apartment. A month later, his mother died, and his
drug habit grew worse.

At the sentencing hearing, Sattler called an expert, Dr.
Martin Levy, Ph.D., to discuss Petitioner’s drug use. Dr.
Levy is a clinical psychologist who had evaluated Petitioner
during a two-hour session. Dr. Levy testified that Petitioner
reported using crack cocaine the night before the car-jacking.
In particular, Dr. Levy testified that Petitioner’s “mental state
was compromised by intoxication . . . with cocaine.”
(Emphasis added.) Dr. Levy also testified that Petitioner’s
description of his mental state during the crime suggested a
state of “disassociat[ion],”3 which was consistent with
Petitioner’s reported drug use.

The prosecutor objected to Dr. Levy’s testimony on the
ground that it lacked foundation. The sentencing judge
agreed and determined that, because Dr. Levy had insufficient
knowledge of when and in what quantities Petitioner used
drugs, he could not testify with specificity as to Petitioner’s
level of impairment or judgment at the time of the crime.
Nevertheless, in Sattler’s closing argument, she reiterated her
position that Petitioner was “under the influence of drugs and
alcohol that day.”

3
Dr. Levy’s testimony and reports use the terms “disassociation” and
“dissociation” interchangeably. “Dissociation” is a “[s]eparation of
psychologic experiences and events that are normally related, leading to
a distortion of experience and of the meaning of personal and
interpersonal events.” Robert J. Campbell, M.D., Campbell’s Psychiatric
Dictionary 289 (9th ed. 2009).
10 MILES V . RYAN

Sattler focused only briefly on Petitioner’s social history
at sentencing. Two character witnesses testified about his
background and his nonviolent nature.4 Indeed, Sattler’s
closing arguments characterize him as a relatively normal
person—one who graduated from high school, who usually
maintained gainful employment, who served in the military
and completed most of his term of service, who married, and
who had a child—but who made some mistakes after his wife
left and his mother died.

Ultimately, the trial judge sentenced Petitioner to death by
lethal injection.5 In so doing, the trial judge cited three
aggravating factors:6 (1) that Petitioner had previous
convictions for three separate crimes of violence (armed
robberies), (2) that Petitioner committed the car-jacking in
pursuit of pecuniary gain, and (3) that the murder was

4
In addition, Sattler planned to call Petitioner’s estranged wife to testify
but did not do so because Petitioner had objected. Similarly, she planned
to call two other character and background witnesses, but they were
unavailable because of a medical emergency. At sentencing, Sattler made
a statement on the record to document those circumstances.

5
The conviction, sentencing, and appeal to the Arizona Supreme Court
all took place before the Supreme Court decided Ring v. Arizona, 536 U.S.
584 (2002), which requires a jury to determine all facts relating to
eligibility for capital punishment. Ring “does not apply retroactively to
cases already final on direct review.” Schriro v. Summerlin, 542 U.S. 348,
358 (2004).

6
The trial judge relied on an additional aggravating factor— that the
murder was committed in an especially heinous manner— but the Arizona
Supreme Court reversed on that point. See State v. Miles, 918 P.2d 1028,
1035–36 (Ariz. 1996).
 MILES V . RYAN 11

committed in an especially cruel manner.7 The trial court also
noted that the murder was senseless, in that it was
unnecessary to the escape of Petitioner and his accomplices.

In mitigation, the trial judge rejected most of the potential
mitigating factors. He rejected the contention that Petitioner
was only a minor participant in the crime. The trial judge
also rejected unforeseeability8 of the murder and Petitioner’s
age as mitigating factors. As to expressions of remorse, the
trial judge found them insincere and, in any event,
outweighed by the aggravating factors listed above:

The court finds that the defendant’s
expression of remorse was insufficient to
outweigh the aggravating circumstances of
this case. No remorse was evidenced when
the defendant went to Phoenix, after the
murder, in the car of Miss Baeuerlen, to party
with his friends. No remorse was evidenced
when the defendant was captured by the
Phoenix Police. No remorse was evidenced
when the defendant, a day after the murder,
was able [to] laugh when detailing the murder
. . . to a boyhood friend in Phoenix.

7
To support the cruelty finding, the trial judge found that Baeuerlen
“suffered prolonged mental anguish and uncertainty as to her fate,” as
demonstrated by Petitioner’s own account of her “crying, screaming in
terror, and begging for her life.”

8
The trial judge went on to note that Petitioner could not have been
surprised by the killing in view of his accomplice’s statement, before the
crime, that he was “gonna get somebody’s car, take ‘em off in the middle
of the desert, and shoot ‘em.”
12 MILES V . RYAN

The trial judge rejected the possibility of rehabilitation,
finding no evidence to support it. He went on to note that,
even if he were to find a possibility of rehabilitation, that
would not outweigh the aggravating factors. The trial judge
also found that Petitioner’s cooperation with the police was
purely self-interested and not sufficient “to establish a
mitigating circumstance or to outweigh the aggravating
circumstances.”

The trial judge did consider mitigation arising from the
nature of the murder conviction—felony murder, rather than
pre-meditated murder—but found it insufficient to outweigh
the aggravating factors. The trial judge also considered
Petitioner’s reputation for nonviolence but did not find it
sufficient to outweigh the aggravating factors, especially in
view of Petitioner’s recent commission of three armed
robberies.

Finally, of particular significance to this appeal, the trial
judge rejected any drug-related mitigation, stating:

The court finds that there is no credible
evidence that the defendant’s capacity was
impaired or that drugs or alcohol had impaired
the defendant’s thinking or actions at the time
of the crimes in question. . . . The testimony
offered by the defendant, from Doctor Levy,
Ph.D., as to impairment, was without adequate
foundation, and considered by the court to be
without value.
 MILES V . RYAN 13

D. Post-Conviction Relief Proceedings

On direct appeal, the Arizona Supreme Court affirmed the
conviction and capital sentence. State v. Miles, 918 P.2d
1028 (Ariz. 1996). Petitioner did not petition for certiorari to
the United States Supreme Court, but he did file a state court
petition for post-conviction relief (“PCR”) under Rule 32 of
the Arizona Rules of Criminal Procedure. The Arizona
Superior Court denied Petitioner’s PCR petition, rejecting his
ineffective assistance of counsel claims on the merits. With
respect to Sattler’s failure to focus on addiction, the state
court concluded both that Sattler’s performance was not
deficient and that Petitioner failed to demonstrate prejudice.
With respect to the other two claims in this case, the state
court concluded only that Sattler’s performance was not
deficient—it made no determination as to prejudice. The
Arizona Supreme Court denied the petition for review of the
PCR decision.

Before denying Petitioner’s PCR petition, the Arizona
Superior Court, however, ordered an evidentiary hearing. In
preparation for that hearing, Petitioner underwent more
extensive psychological testing. Dr. Joseph Geffen, Ph.D., a
clinical psychologist, prepared a report describing Petitioner
as using drugs to “self-medicat[e]” and as having resorted to
crime because of “his perceived need for drugs without which
he cannot cope.” Dr. Levy had described Petitioner’s drug
use similarly, as self-medication, in his pre-sentence
evaluation, but did not connect Petitioner’s motivation for his
crimes to a need to acquire drugs.

In preparation for the state hearing, Petitioner’s counsel
hired an investigator to probe further into his social history.
The investigator produced a detailed report, containing
14 MILES V . RYAN

information gleaned from interviews with many people who
knew Petitioner and his mother during his youth. The
additional history confirms that Petitioner’s mother was an
alcoholic and suggests that she may also have used heroin, or
at least socialized with those who did. The investigation
revealed that his mother worked as a prostitute and perhaps
ran her own whorehouse out of her home. When Petitioner
was approximately 11 years old, his mother began work at a
nursing home (and may have given up prostitution); there, she
rose to become an administrator, a position she held until
Petitioner’s last year of high school, when she was fired for
drinking on the job. Additionally, the report characterized
Petitioner’s hometown of Winslow, Arizona, as being
segregated, corrupt, and rife with prostitution, crime, drugs,
and gambling. The investigation confirmed that Petitioner
and his mother suffered at least some alienation due to their
mixed-race household.

The additional social history also suggests that
Petitioner’s mother was an “extremely protective mother”
who made him the center of her life. She was “infatuated”
with her son and “coddle[d]” him. She slept in the same bed
as Petitioner until he was 14 years old. She “read to him
constantly and sang to him when she fed him,” past an age
considered “normal” by a friend. The additional social
history reveals that, although Petitioner’s mother disciplined
him by spanking him with a hairbrush when he was 4 or 5
years old, she later discontinued the practice and did not
physically abuse him.9 She bought Petitioner “everything he

9
Petitioner now disputes this finding and recently filed an affidavit
stating that his mother routinely physically abused him when he was
between the ages of 4 and 14 years old by beating him with “belts,
extension cords, paddles, switches, and her fists.” Because this evidence
 MILES V . RYAN 15

wanted” and, when he developed buck teeth, for which other
children teased him, she arranged for him to get braces.

The additional social history report went on to discuss
Petitioner’s relationships with his community. He went to
church twice a week for Bible study until at least his junior
high school years, receiving a ride from a local bus ministry.
When he was in junior high school, his basketball coach
frequently drove him home from practices. He became good
friends with a local family, spending a great deal of time at
their home; indeed, they treated him like their own child.
Notably, he remained in contact with members of that family
well into adulthood—two of them were character witnesses
at his sentencing hearing. According to those two witnesses,
Petitioner stayed in touch with them after leaving Winslow
and visited them to introduce his wife. One of the witnesses
was a close friend when she and Petitioner were both living
in Tucson; she was present for the birth of his daughter.

The additional social history investigation also looked
into Petitioner’s high school years, during which he played on
the basketball team and earned a varsity letter in his senior
year, helping to win the state championship. He had a close-
knit group of five friends, and he was popular with girls.

E. Federal Habeas Proceedings

In late 2001, Petitioner filed this habeas corpus petition
pursuant to 28 U.S.C. § 2254. The district court granted

was not before the state court, however, we may not consider it. See
Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (holding that “review
under [28 U.S.C.] § 2254(d)(1) is limited to the record that was before the
state court that adjudicated the claim on the merits”).
16 MILES V . RYAN

Petitioner’s request for appointment of an investigator and a
doctor, and the court later granted requests for more funds for
mitigation specialists.

Under the district court’s order, Dr. Geffen, who had
examined Petitioner during the state post-conviction
proceedings, examined him again and prepared another
report. In his report, Dr. Geffen stated that, after learning
about “modern methods of evaluating mitigation factors in
death penalty cases,” years after his initial evaluation of
Petitioner, he thought that he “had not done as complete an
evaluation as possible.” Dr. Geffen further concluded: (1)
that Petitioner was “experiencing an altered state of mind at
the time of [Baeuerlen’s] murder;” (2) that, “[a]lthough
physically present, [Petitioner] was emotionally and mentally
‘not there’ in terms of his awareness and appreciation of
events around him, due to a dissociative state of mind, during
which the event appeared to him as unreal and disconnected
from him;” (3) that Petitioner’s “substance abuse at the time
was part of a lifelong adjustment problem which resulted in
a severe state of depression, and that the drugs served the
purpose of numbing his perceptions after some catastrophic
losses and personal failures, including the loss of his mother
and of his marriage and family and job, almost
simultaneously, rather than being an isolated recreational
act;” and (4) that Petitioner’s “altered mental state met the
criteria for statutory mitigation, since he was not capable of
conforming to the lawful requirements due to his impaired
mental state.”

Around the same time, Petitioner was also examined by
Dr. Wm. Michael Cochran, M.D. Dr. Cochran concluded
that, “at the time of his participation in the crime(s) on
December 7, 1992, [Petitioner] was using alcohol, crack
 MILES V . RYAN 17

cocaine and marijuana addictively” and that Petitioner’s
“participation in the robbery of [] Baeuerlen was primarily
motivated by his addictions, and their consequent monetary
obligations to satisfy the attendant ‘needs’ for continued
use.”10

In 2004, the district court granted, in part, Petitioner’s
motion for an evidentiary hearing by allowing depositions of
Sattler and Phyllis Howell (Sattler’s trial investigator). But
the district court ultimately determined that an evidentiary
hearing was “neither warranted nor required because
Petitioner ha[d] not alleged facts which, if proved, would
entitle him to relief.” The district court then denied
Petitioner’s petition, certifying only the issues discussed in
this opinion. Petitioner timely appealed, and we have
jurisdiction pursuant to 28 U.S.C. § 2253. After oral
argument and submission of the case, the Supreme Court
issued its decision in Martinez v. Ryan, 132 S. Ct. 1309
(2012), and we ordered supplemental briefing to address the
effect, if any, of Martinez on the certified issues in this case.

STANDARDS OF REVIEW

We review de novo a district court’s denial of habeas
corpus relief. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th
Cir. 2004).

Our review of the underlying state court decisions, on the
other hand, is more limited. Because Petitioner filed his
§ 2254 habeas petition after April 24, 1996, his petition is

10
After Pinholster, the AEDPA standard of review prevents us from
relying on Dr. Cochran’s report or Dr. Geffen’s last report because the
state court did not consider that evidence.
18 MILES V . RYAN

governed by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat.
1214. Lambert v. Blodgett, 393 F.3d 943, 965 (9th Cir.
2004). Under AEDPA, we must defer to a state court’s
decision with respect to any claim that was adjudicated on the
merits unless the adjudication of the claim:

(1) resulted in a decision that was contrary
to, or involved an unreasonable application of,
clearly established Federal law, as determined
by the Supreme Court of the United States; or

(2) resulted in a decision that was based
on an unreasonable determination of the facts
in light of the evidence presented in the State
court proceeding.

28 U.S.C. § 2254(d).

Under § 2254(d)(1), a state court’s decision involves an
“unreasonable application” of clearly established federal law
if it “identifies the correct governing legal principle from [the
Supreme Court’s] decisions but unreasonably applies that
principle to the facts of the prisoner’s case.” Holland v.
Jackson, 542 U.S. 649, 652 (2004) (per curiam) (internal
quotation marks omitted).

DISCUSSION

When applying AEDPA’s standards, we review the “last
reasoned decision” by a state court addressing the issue at
hand. Robinson, 360 F.3d at 1055 (internal quotation marks
omitted). Here, the last reasoned opinion addressing the
claims presently before us—whether counsel performed
 MILES V . RYAN 19

ineffectively at sentencing—is the Arizona Superior Court’s
Minute Entry, which denied Petitioner’s PCR petition.

Clearly established Supreme Court precedent provides a
framework for examining Sixth Amendment ineffective
assistance of counsel claims. See Strickland v. Washington,
466 U.S. 668 (1984). To establish ineffective assistance of
counsel under Strickland, a prisoner must demonstrate both:
(1) that counsel’s performance was deficient, and (2) that the
deficient performance prejudiced his defense. Id. at 688–93.
We may address these prongs in whichever order we deem
most efficient. Id. at 697.

The first prong of the Strickland test—deficient
performance—requires a showing that counsel’s performance
“fell below an objective standard of reasonableness,” id. at
688, or was “outside the wide range of professionally
competent assistance,” id. at 690. The test is “highly
deferential,” evaluating the challenged conduct from
counsel’s perspective at the time in issue. Id. at 689. This
inquiry should “begin with the premise that ‘under the
circumstances, the challenged action[s] might be considered
sound trial strategy.’” Cullen v. Pinholster, 131 S. Ct. 1388,
1404 (2011) (alteration in original) (quoting Strickland,
466 U.S. at 689), rev’g Pinholster v. Ayers, 590 F.3d 651 (9th
Cir. 2009) (en banc). Under this objective approach, we are
required “to affirmatively entertain” the range of possible
reasons counsel might have proceeded as he or she did. Id. at
1407.

The second prong of the Strickland test—prejudice
—requires the petitioner to demonstrate a “reasonable
probability that, but for counsel’s unprofessional errors, the
result of the [trial] would have been different.” 466 U.S. at
20 MILES V . RYAN

694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. Further, as with
any claim of constitutional error in a federal habeas case
applied to state prisoners, an additional, essentially
overlapping, harmless error standard applies: “whether the
constitutional error ‘had substantial and injurious effect or
influence in determining the [outcome].’” Ybarra v.
McDaniel, 656 F.3d 984, 995 (9th Cir. 2011) (quoting Brecht
v. Abrahamson, 507 U.S. 619, 637 (1993)), petition for cert.
filed, ___ U.S.L.W. ___ (U.S. May 29, 2012) (No. 11-10652).

The state court applied Strickland—the correct rule—in
analyzing Petitioner’s claims.11 On habeas review,
Petitioner’s claims amount to a contention that the state court
misapplied Strickland, so those claims fall squarely under
§ 2254(d)(1). See Knowles v. Mirzayance, 129 S. Ct. 1411,
1414–15 (2009) (evaluating an ineffective assistance of
counsel claim under § 2254(d)(1)); Cheney v. Washington,
614 F.3d 987, 990 (9th Cir. 2010) (same).

Our review of an ineffective assistance of counsel claim
under § 2254(d)(1) and Strickland is “doubly deferential.”
Knowles, 129 S. Ct. at 1420. The issue “is not whether [we]
believe[] the state court’s determination under the Strickland
standard was incorrect but whether that determination was
unreasonable—a substantially higher threshold.” Id. (internal
quotation marks omitted).

11
The state court identified the Strickland legal standard without citing
that particular case; rather, the state court cited only Arizona Supreme
Court decisions. But those state court decisions, in turn, explicitly cite and
adopt Strickland. See State v. Vickers, 885 P.2d 1086, 1090 (Ariz. 1994);
State v. Nash, 694 P.2d 222, 227 (Ariz. 1985).
 MILES V . RYAN 21

With that framework in mind, we evaluate Petitioner’s
claims.

A. Addiction as a Mitigating Factor

Petitioner first argues that, during sentencing, Sattler
unreasonably failed to focus on his drug addiction. We
disagree. Sattler’s decision to rely on Dr. Levy and to focus
on other mitigating factors, such as depression, rather than on
addiction, was a matter of strategy.12 Sattler’s arguments at
sentencing support our conclusion. Her chosen tack—
characterizing Petitioner as a relatively normal person who
was suffering from depression—evinces a desire to avoid
painting Petitioner as a drug addict. At the very least,
Sattler’s argument at sentencing raises the possibility that she
was motivated by such a strategy, which is all that Pinholster
requires. 131 S. Ct. at 1404–07. Because Sattler’s decision
not to focus on drug addiction appears to have been motivated
by reasonable strategic concerns, that decision is deserving of
great deference under Strickland and Pinholster. See Turner
v. Calderon, 281 F.3d 851, 876 (9th Cir. 2002) (“The choice
of what type of expert to use is one of trial strategy and
deserves ‘a heavy measure of deference.’” (quoting
Strickland’s statement regarding deference due to counsel’s
investigative decisions, 466 U.S. at 691)).

Petitioner also argues that Sattler’s representation was
deficient because her sentencing arguments discussed

12
Sattler’s deposition supports our conclusion, but after Pinholster, we
may not consider that evidence under the AEDPA standard of review.
131 S. Ct. at 1400 (“[E]vidence introduced in federal court has no bearing
on § 2254(d)(1) review.”). Accordingly, we do not rely on Sattler’s
deposition.
22 MILES V . RYAN

intoxication rather than addiction. Sattler’s decision to avoid
asserting that Petitioner suffered from an addiction, while
focusing instead on lingering intoxication from the use of
crack cocaine, could be seen as inconsistent with a strategy of
painting Petitioner as a normal person; if counsel thought that
drug use made Petitioner appear less deserving of sympathy,
one might think that she would have tried to avoid
mentioning drugs at all. But counsel’s strategy and decision
are reasonable when viewed from her perspective at the time
of trial, as Strickland requires us to do. Petitioner discussed
his crack cocaine use in his confession, and it was mentioned
in the PSR, so Sattler had to address it somehow.

Moreover, Petitioner was sentenced in 1993. As recently
as 1998, the Arizona Supreme Court was routinely rejecting
addiction as a mitigating factor unless the defendant could
show intoxication at the time of the crime. See, e.g., State v.
Greene, 967 P.2d 106, 117 (Ariz. 1998) (“To hold that a
motivation to kill fueled in part by a desire for drugs is
mitigating would be anomalous indeed.”); State v. Williams,
904 P.2d 437, 453 (Ariz. 1995) (“Without a showing of some
impairment at the time of the offense, drug use cannot be a
mitigating circumstance of any kind.” (citing State v. White,
815 P.2d 869, 882 (Ariz. 1991))); State v. Wood, 881 P.2d
1158, 1176 (Ariz. 1994) (“We further believe Defendant’s
impulsive personality and history of substance abuse merit
little, if any, independent consideration in mitigation. As
noted, Defendant was not under the influence of any
intoxicating substance at the time of the murders.” (emphasis
added) (citing State v. Bible, 858 P.2d 1152, 1209 (Ariz.
1993))). But see State v. Gallegos, 870 P.2d 1097, 1113–15
(Ariz. 1994) (finding error in trial court’s failure to consider
history of substance abuse as a nonstatutory mitigating
 MILES V . RYAN 23

factor). For that reason, too, counsel would have had to
emphasize intoxication.

It was only recently, in 2010, that we disapproved the
Arizona Supreme Court’s treatment of addiction, in a habeas
review of Williams, 904 P.2d 437. Williams v. Ryan,
623 F.3d 1258, 1270 (9th Cir. 2010). Given the state of
Arizona law at the time of trial, Sattler would have been
operating under the assumption that intoxication was the only
viable means of explaining Petitioner’s drug use to the
sentencing judge. And the evidence did not rule out some
sort of lingering intoxication—Dr. Levy discussed it in his
report.13 Seen from this perspective, Sattler’s strategy did not
fall outside the wide range of professional competence or
below an objective standard of reasonableness.14

Even if Sattler had been deficient in failing to focus on
addiction, we see no prejudice, the second prong of the

13
Dr. Levy’s report discusses Petitioner’s condition at the time of the
crime as “coming down” from crack cocaine use the previous night and
notes that Petitioner was dissociated from the events. At trial, Dr. Levy
testified that this state is common among drug users.

14
To be sure, in Williams, we wrote: “T he decision of the Arizona
Supreme Court that drug use could not be considered as a mitigating factor
‘of any kind,’ is contrary to the Supreme Court’s consistent decisions in
capital cases beginning more than a decade before Williams’ [1992]
trial.” 623 F.3d at 1270 (emphasis added). Nevertheless, as Petitioner’s
brief acknowledges, under Arizona law at the time of his trial, addiction
was not a recognized form of mitigation. Thus, although she could have
relied on existing United States Supreme Court decisions to challenge the
Arizona practice of ignoring the mitigating value of addiction, her strategy
merits deference under Strickland.
24 MILES V . RYAN

Strickland standard. In assessing prejudice, we consider the
mitigating effect of Petitioner’s drug addiction and how it
would have altered the balancing of aggravating and
mitigating factors discussed at sentencing. See Porter v.
McCollum, 130 S. Ct. 447, 453–54 (2009) (per curiam) (“To
assess th[e] probability [of a different sentence], we consider
the totality of the available mitigation evidence—both that
adduced at trial, and the evidence adduced in the habeas
proceeding—and reweigh it against the evidence in
aggravation.” (internal quotation marks omitted) (brackets
omitted)).

As noted above, Petitioner’s case involved significant
aggravating factors, none of which would be affected by
addiction. For many of the proposed mitigating factors
(remorse, rehabilitation, cooperation), the trial judge made
two findings—(1) that the evidence was insufficient to
establish the mitigating factor in the first place; and (2) that
even if the mitigating factor were established, it would be
insufficient to outweigh the aggravating factors. It is highly
unlikely that a finding of addiction as a mitigating factor
would have tipped the scales where none of the other
proposed mitigators did. Indeed, addiction could be
characterized as merely another element of social history,
which the sentencing judge considered and found insufficient
to outweigh the aggravators. As stated by the district court:

The sentencing judge considered Petitioner’s
life circumstances but found them insufficient
to warrant leniency. There is no reasonable
probability that focusing on Petitioner’s crack
cocaine addiction, as opposed to the reasons
that led to the addiction, would have changed
the sentencing outcome.
 MILES V . RYAN 25

Under AEDPA, the state court’s decision denying this
portion of Petitioner’s ineffective assistance claim must
stand. The state court did not apply Strickland unreasonably.
See Harrington v. Richter, 131 S. Ct. 770, 785 (2011) (“A
state court must be granted a deference and latitude that are
not in operation when the case involves review under the
Strickland standard itself.”); cf. id. at 789 (“Rare are the
situations in which the wide latitude counsel must have in
making tactical decisions will be limited to any one technique
or approach. It can be assumed that in some cases counsel
would be deemed ineffective for failing to consult or rely on
experts, but even that formulation is sufficiently general that
state courts would have wide latitude in applying it.” (internal
quotation marks omitted)).

“Surmounting Strickland’s high bar is never an easy
task.” Id. at 788 (internal quotation marks omitted). Because
Sattler’s decision not to focus on addiction as a mitigating
factor was strategic and because Petitioner was not prejudiced
as a result, he fails to meet the Strickland standard here.

B. Qualifications of Expert

Petitioner next argues that Sattler’s preparation of Dr.
Levy was deficient. The sentencing court did not allow Dr.
Levy to testify as to Petitioner’s drug use because of a lack of
foundation—Dr. Levy did not know how often Petitioner had
been using drugs, or in what quantities. He did not even
know if, or for how long, Petitioner had slept between the
time he ingested drugs and the time he committed the crime.

Although Sattler’s strategy—to focus on intoxication
rather than addiction—was reasonable, she may have failed
to implement it appropriately. But even if that failure
26 MILES V . RYAN

represents performance so deficient as to meet the standards
applicable when we review a Strickland claim under
AEDPA—a question we do not decide—Petitioner still fails
to demonstrate prejudice. On this point, the state court made
no determination on the merits, so we must review de novo.
See Porter, 130 S. Ct. at 452 (“Because the state court did not
decide whether Porter’s counsel was deficient, we review this
element of Porter’s Strickland claim de novo.”).
Significantly, the sentencing judge was aware of Petitioner’s
drug use—the PSR, which quoted some of Dr. Levy’s
opinions, contained information about Petitioner’s “coming
down” from crack cocaine used the night before the crime, as
well as a diagnosis that Petitioner was in a “disassociated”
state. The excluded testimony would have added very little
more.

Furthermore, as the district court noted, even if Dr. Levy
could have testified as to the effect of Petitioner’s drug use on
his mental state, that testimony would have been of limited
value in view of: (1) Petitioner’s “acknowledgment that he
was not under the influence of drugs or alcohol at the time of
the offense”; and (2) Dr. Levy’s other testimony that
“regardless of his drug abuse Petitioner knew the difference
between right and wrong and was capable of walking away
from the offense, thus negating any finding of significant
impairment under A.R.S. § 13-703(G)(1).”15 It is not
reasonably probable that Dr. Levy’s excluded testimony
would have influenced the sentencing judge because, even if
the judge had considered Petitioner’s drug use to be a form of
reduced, nonstatutory intoxication, the mitigating effect of
that condition would have been insufficient to outweigh the

15
Section 13-703 (1993) has since been renumbered as Arizona Revised
Statutes section 13-751 (2011).
 MILES V . RYAN 27

aggravating factors outlined and discussed above.
Consequently, Petitioner’s ineffective assistance of counsel
claim, regarding the qualifications of Dr. Levy, fails on the
prejudice prong of Strickland, reviewed de novo.

C. Investigation of Social History

Finally, Petitioner argues that Sattler’s performance was
deficient because she failed to investigate mitigating
circumstances thoroughly enough. Strickland itself involved
a claim of ineffective assistance for failure to investigate
mitigating circumstances. For that reason, Strickland is an
especially good starting point for analyzing Petitioner’s claim
that Sattler failed to investigate sufficiently his social history.
The Supreme Court outlined the standards governing
counsel’s duty to investigate as follows:

[S]trategic choices made after thorough
investigation of law and facts relevant to
plausible options are virtually
unchallengeable; and strategic choices made
after less than complete investigation are
reasonable precisely to the extent that
reasonable professional judgments support the
limitations on investigation. In other words,
counsel has a duty to make reasonable
investigations or to make a reasonable
decision that makes particular investigations
unnecessary. In any ineffectiveness case, a
particular decision not to investigate must be
directly assessed for reasonableness in all the
circumstances, applying a heavy measure of
deference to counsel’s judgments.
28 MILES V . RYAN

. . . And when a defendant has given
counsel reason to believe that pursuing certain
investigations would be fruitless or even
harmful, counsel’s failure to pursue those
investigations may not later be challenged as
unreasonable.

Strickland, 466 U.S. at 690-91 (emphasis added).

In Pinholster, the Supreme Court provided more
guidance, overturning an opinion in which we had drawn,
from other recent Supreme Court cases, a “constitutional duty
to investigate, and the principle that it is prima facie
ineffective assistance for counsel to abandon their
investigation of the petitioner’s background after having
acquired only rudimentary knowledge of his history from a
narrow set of sources.” 131 S. Ct. at 1406 (citation, internal
quotation marks, and brackets omitted). In the decision that
Pinholster reversed, we had explained that we “could not
‘lightly disregard’ a failure to introduce evidence of
‘excruciating life history’ or ‘nightmarish childhood.’” Id.
(quoting Pinholster, 590 F.3d at 684).

In reversing us, the Court in Pinholster explained
Strickland:

“No particular set of detailed rules for
counsel’s conduct can satisfactorily take
account of the variety of circumstances faced
by defense counsel or the range of legitimate
decisions . . . .” Strickland itself rejected the
notion that the same investigation will be
required in every case. It is “[r]are” that
 MILES V . RYAN 29

constitutionally competent representation will
require “any one technique or approach.”

Id. at 1406–07 (alteration in original) (citations omitted)
(quoting Strickland, 466 U.S. at 688–89, 691, and Richter,
131 S. Ct. at 788-89).

Here, Sattler’s actions are a reasonable implementation of
her strategy—made explicit in her closing arguments at
sentencing—to characterize Petitioner as a relatively normal
person who made serious mistakes after his wife left and his
mother died. Cf. Strickland, 466 U.S. at 672–74 (finding that
counsel’s strategy—claiming “no significant history of
criminal activity” and arguing that the defendant “should be
spared death . . . because [he] was fundamentally a good
person who had briefly gone badly wrong in extremely
stressful circumstances” arising from “his inability to support
his family”—was professionally reasonable, justifying a
failure to investigate and present background information that
might undermine those claims).

Sattler’s failure to investigate more thoroughly is
justified, then, by the irrelevance of additional social history
to her chosen strategy. As Pinholster recognized, choice of
a particular strategy can make “particular investigations
unnecessary.” 131 S. Ct. at 1407; see id. at 1407–08
(approving of the notion that “ ‘“humanizing” the defendant
. . . may be the wrong tactic in some cases because
experienced lawyers conclude that the [sentencing authority]
simply won’t buy it’” (quoting Pinholster, 590 F.3d at 692
(Kozinski, C.J., dissenting)).

Because Sattler’s actions reflect a deliberate choice of
reasonable strategy, they do not fall outside reasonable
30 MILES V . RYAN

professional norms. We see no deficient performance in
Sattler’s decision not to investigate Petitioner’s social history
further, and AEDPA deference applies. It is on this holding
that we part ways with the dissent. The dissent rests on the
premise that the Arizona Superior Court’s holding—that
Sattler’s approach to mitigation was not deficient—was
“contrary to” clearly established federal law and that, as a
result, we should review Petitioner’s ineffective assistance of
counsel claim de novo, not with AEDPA deference. That
argument is flawed because it overreads Rompilla v. Beard,
545 U.S. 374 (2005), and Wiggins v. Smith, 539 U.S. 510
(2003), in contravention of Pinholster’s clear instructions to
the contrary. See 131 S. Ct. at 1406–07 (“The Court of
Appeals erred in attributing strict rules to this Court’s recent
case law.” (citing Rompilla and Wiggins)). Indeed, the
dissent here appears to be making the same argument made
by the dissent in Pinholster, an argument that was necessarily
rejected by a majority of the Court. See id. at 1427
(Sotomayor, J., dissenting) (“In reaching this conclusion, the
majority commits the same Strickland error that we corrected,
applying § 2254(d)(1), in Wiggins: It holds a purportedly
‘tactical judgment’ to be reasonable without assessing ‘the
adequacy of the investigatio[n] supporting [that]
judgmen[t].’” (alterations in original) (quoting Wiggins,
539 U.S. at 521)).

Further, to the extent that the dissent finds support in
Porter, 130 S. Ct. 447, that case is distinguishable. Porter
held that the defendant “may have been fatalistic or
uncooperative, but that [did] not obviate the need for defense
counsel to conduct some sort of mitigation investigation.”
Porter, 130 S. Ct. at 453. In Porter, counsel failed to conduct
any investigation into the defendant’s background—he did
not interview any witnesses or request any records. Id. Here,
 MILES V . RYAN 31

as the Arizona Superior Court held, Petitioner’s failure to
disclose pertinent facts about his background “guaranteed that
[Sattler] would not and Dr. Levy certainly would not, conduct
further investigation into Petitioner’s background.” Sattler
did conduct a mitigation investigation—she engaged an
investigator who interviewed childhood friends of Petitioner,
attempted to call his wife to testify at the penalty phase (but
Petitioner refused to allow her to do so), and engaged Dr.
Levy. Porter, therefore, is inapplicable here.

But even if Sattler’s performance had been deficient,
Petitioner suffered no prejudice. As with Petitioner’s claim
regarding Sattler’s expert, the state court made no prejudice
finding on the failure to investigate claim, so we must review
prejudice de novo. That review is not subject to the
evidentiary limitations announced in Pinholster, though it is
subject to the limitations in § 2254(e)(2). See Pinholster,
131 S. Ct. at 1401 (“Section 2254(e)(2) continues to have
force where § 2254(d)(1) does not bar federal habeas
relief. . . . At a minimum, therefore, § 2254(e)(2) still
restricts the discretion of federal habeas courts to consider
new evidence when deciding claims that were not adjudicated
on the merits in state court.”). But even assuming that
§ 2254(e)(2) permits us to consider the new evidence that
Petitioner produced at the district court,16 we see no
prejudice.

16
Even under review de novo and § 2254(e)(2), however, we do not
consider the new evidence produced on appeal in connection with the
supplemental briefing on the Martinez issue discussed below. See United
States v. Waters, 627 F.3d 345, 355 n.3 (9th Cir. 2010) (“Facts not
presented to the district court are not part of the record on appeal.”
(internal quotation marks omitted)).
32 MILES V . RYAN

First, as discussed above, Petitioner received a capital
sentence primarily on account of three aggravating
factors—previous convictions for three armed robberies,
committing the car-jacking in pursuit of pecuniary gain, and
committing the murder in an especially cruel manner—and
the sentencing judge observed that the aggravators were
unlikely to be outweighed by anything less than substantial
mitigation. Petitioner’s additional social history is, as the
district court noted, largely cumulative of what was already
before the sentencing judge in the PSR, meaning that its
mitigating value would be marginal.

More significantly, the additional social history is
equivocal, and not as alarming as that of the defendants in
other failure-to-investigate cases. See, e.g., James v. Ryan,
679 F.3d 780 (9th Cir. 2012), petition for cert. filed,
81 U.S.L.W. 3047 (U.S. June 28, 2012) (No. 11A1119).
Petitioner’s mother was a prostitute during his early years,
though she turned to legitimate employment when he was
about 11 years old. He may have observed—but did not
experience—violence in connection with his mother’s
prostitution. But, however problematic were the
circumstances of Petitioner’s mother’s lifestyle, she did not
neglect him, and there was no evidence that he was ever
abused. To the contrary, Petitioner’s mother was clearly
quite devoted to him. Moreover, whatever other problems
existed in Petitioner’s hometown, he had a community of
friends and a support system there, with responsible adults
who took an interest in him. He developed healthy
relationships that continued into adulthood. Finally, by all
objective indications, he was socially well adjusted in high
school.
 MILES V . RYAN 33

Petitioner’s background was far more stable than, say, the
background of the defendant in James, in which we granted
habeas relief from a capital sentence.17 The defendant in that
case, James, grew up in a household with a father who shot
heroin in front of James and was a violent alcoholic who beat
James’ mother. James, 679 F.3d at 811. James grew up on
welfare and was both neglected and verbally abused by his
mother. Id. Later, his mother took up with another violent
alcoholic, but this one abused James as well as his mother.
Id. Growing up, James was frequently visited by an uncle
known to have sexually abused other children in his family.
Id. at 811–12. At one point, James’ mother tried to smother
him with a pillow but relented at the last moment. Id. at 812.
After living in various foster homes and an adoption center
for six to nine months, James was given up for adoption at
age 4. Id. He was eventually adopted by an older couple who
physically abused him when he misbehaved.18 Id. at 812–13.

Similarly, the Arizona Supreme Court reversed a death
sentence in State v. Trostle, 951 P.2d 869 (Ariz. 1997).
Unlike Petitioner here, Trostle had been neglected as a baby.

17
James is distinguishable on the deficiency-of-performance prong of
Strickland because, in James, the state did not dispute deficient
performance. 679 F.3d at 807. Also, the state court in James had denied
the ineffective assistance of counsel claim for procedural reasons, rather
than on the merits, meaning that AEDPA deference did not apply. Id. at
802.

18
The dissent asserts, “[C]ontrary to the majority’s account, James did
not ‘grow up’ in the abusive circumstances described. Instead, at age four,
James was adopted by parents who were strict but loving, and his life
circumstances from thence forward took a dramatic turn for the better.”
Dissent at 49. But James’ adoptive father was so “strict” that, “[o]n one
occasion, [he] whipped James so severely with a rope that he raised
bloody welts all over James’s back.” James, 679 F.3d at 813.
34 MILES V . RYAN

Child Protective Services received numerous reports about
him, starting with a report that he was found, at the age of 2
or 3 months old, sleeping in his own vomit while wearing a
soiled diaper. Id. at 884. “His grandmother beat him
regularly and once severely burned him with hot water for
wetting his pants. His grandfather was convicted of sexually
molesting him over a substantial period of time beginning at
age 11.” Id. After Trostle began acting out in sexually
inappropriate ways, juvenile authorities placed him in a
residential treatment and educational program when he was
14 years old. Id.

The newly uncovered portion of Petitioner’s social history
simply does not have significant mitigating value in view of
what was already available to the sentencing judge. Thus,
even if Sattler had been professionally deficient in failing to
investigate and present these additional facts, it is not
reasonably probable that the outcome of the
aggravation/mitigation balancing would have been different.
Indeed, the new evidence does little to dispel Petitioner’s
later social history, in which he acted as a functioning
member of society for a number of years, demonstrating a
capacity to overcome the hardships that had burdened his
youth.

Accordingly, the failure-to-investigate portion of
Petitioner’s ineffective assistance claims fails on the first
prong of Strickland, applying AEDPA deference. We note,
however, that Petitioner’s claim would fail on the first prong
even under de novo review. Further, as discussed above,
even if Petitioner could prevail on the first prong, thereby
 MILES V . RYAN 35

requiring us to review de novo on the second prong, he would
fail.19

D. Effect of Martinez

Martinez does not help Petitioner. He had the assistance
of counsel in his post-conviction relief proceeding, and
counsel raised a claim of ineffective assistance of trial
counsel. Assuming that Martinez applies in that situation, its
exception is available only if Petitioner can establish that his
post-conviction counsel was ineffective under the Strickland
standard and that the “underlying ineffective-assistance-of-
trial-counsel claim is a substantial one, which is to say that
. . . the claim has some merit.” 132 S. Ct. at 1318.

Here, it cannot be said that Petitioner’s post-conviction
counsel performed his duties so incompetently as to be
outside the “wide range of professionally competent
assistance.” Strickland, 466 U.S. at 690. Even though
Petitioner has now uncovered, during federal habeas
proceedings, some new information that was not presented to

19
Petitioner argues that the state court made an error of law in
suggesting that it denied this portion of his ineffective assistance of
counsel claims because his social history was not “new” evidence.
Because Petitioner did not raise this argument in the district court, he may
not raise it for the first time on appeal. See Scott v. Ross, 140 F.3d 1275,
1283 (9th Cir. 1998) (identifying a general rule of waiver for issues not
raised below, subject to a discretionary exception). Even if we allowed
Petitioner to raise this argument, he could gain nothing more than review
de novo under the Strickland standard, which is itself deferential. See
Frantz, 533 F.3d at 737 (holding that, when Ҥ 2254(d)(1) is satisfied,
then federal habeas courts must review the substantive constitutionality of
the state custody de novo”). As noted above, the failure to investigate
portion of Petitioner’s ineffective assistance of counsel claims would fail
even under review de novo.
36 MILES V . RYAN

the state courts during post-conviction review, that evidence
is insufficient to demonstrate that his lawyer’s investigation
during the state-court proceedings was objectively
unreasonable. As detailed above, his counsel conducted an
extensive investigation during post-conviction review,
obtaining a psychologist to perform further testing and hiring
an investigator who visited Petitioner’s home town and
interviewed many people who knew him and his mother.
Accordingly, Petitioner cannot demonstrate that his post-
conviction counsel was ineffective.

Furthermore, even with new evidence relating to his
social history and drug use, Petitioner cannot rescue the claim
that his sentencing counsel was ineffective. As we have
already discussed, sentencing counsel made a reasonable
choice, as a matter of strategy, not to focus on social history
and addiction, opting instead to paint Petitioner as a normal
person who made a grave mistake during a tumultuous period
in his life. Petitioner’s new evidence does not establish that
this choice was unreasonable.

In summary, even assuming that the Martinez exception
applies to Petitioner’s case, he cannot satisfy its requirements.

CONCLUSION

Petitioner’s counsel adopted a permissible sentencing
strategy to show: (1) that Petitioner was a nice young man
who went with bad companions because he was depressed,
who may have been intoxicated at the time of the crime, who
was remorseful, and who was worth saving through
rehabilitation; and (2) that he was just a very minor
participant in the crime who was surprised by the violent turn
of events. She presented mitigation witnesses to bolster this
 MILES V . RYAN 37

theory. To portray him as a crazed drug addict with a sordid
past would have contradicted the chosen strategy.
Petitioner’s arguments amount to little more than a contention
that his counsel should have adopted a different strategy.
Under Strickland, such arguments must fail, and Martinez
does not compel a different result.

AFFIRMED.

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

I agree with the majority that Miles has not shown that he
is entitled to relief under the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132,
110 Stat. 1214, on the basis of his counsel’s alleged
deficiencies in presenting addiction as a mitigating factor and
in preparing Dr. Levy to testify. I cannot agree, however,
with the majority’s conclusion that Miles is not entitled to
relief based on his counsel’s deficient investigation of his
troubled background. In rejecting this claim, the state court
applied Strickland in a way inconsistent with the holdings of
several Supreme Court cases. Its decision was therefore
“contrary to” clearly established Federal law, and we should
conduct de novo review. On de novo review, I would
conclude that Miles’s counsel was constitutionally deficient
and that Miles was prejudiced by this deficiency. On this
point, therefore, I dissent.
38 MILES V . RYAN

A. AEDPA

The Arizona Superior Court rejected Miles’s failure-to-
investigate claim on the ground that “a Defendant must bear
some responsibility to assist his or her attorney in preparing
a defense [and that] an attorney should be able to rely on
his/her client to bring pertinent facts to his/her attention.”1
Because this ground is “contrary to . . . clearly established
Federal law,” this claim should be reviewed de novo.
28 U.S.C. § 2254(d)(1); Frantz v. Hazey, 533 F.3d 724, 734
(9th Cir. 2008) (en banc).

Strickland v. Washington, 466 U.S. 668 (1984), the
seminal ineffective assistance of counsel case, explained that

[t]he reasonableness of counsel’s actions may
be determined or substantially influenced by
the defendant’s own statements or actions. . . .
In particular, what investigation decisions are
reasonable depends critically on such
information. . . . [W]hen a defendant has
given counsel reason to believe that pursuing
certain investigations would be fruitless or
even harmful, counsel’s failure to pursue
those investigations may not later be
challenged as unreasonable.

1
T he state court also held that Miles could not make a claim under
Arizona Rule of Criminal Procedure 32.1(e) because his evidence was not
“new.” Post-conviction Strickland claims in California are brought under
Rule 32.1(a), which allows post conviction relief when “[t]he conviction
or sentence was in violation of the Constitution.” Because the two
subsections provide separate grounds for relief, the state court’s discussion
of Rule 32.1(e) does not bear on its Strickland analysis, and so it is
irrelevant to this appeal.
 MILES V . RYAN 39

Id. at 691. What Strickland did not say is that a failure to
investigate claim can be dismissed out of hand whenever the
defendant had information about his past and failed to
provide it to his lawyer. Instead, Strickland stated only that
competent counsel can rely to some degree, with regard to the
scope of an investigation, on what the defendant does tell the
lawyer, not on what he does not.

After Strickland, the Supreme Court specifically held,
more than once, that an attorney’s duty to investigate a
defendant’s background in preparation for sentencing is not
circumscribed by the degree to which the defendant offers up
mitigating information about his past. In Porter v.
McCollum, for example, the court emphasized that whether
a defendant is “fatalistic or uncooperative . . . does not
obviate the need for defense counsel to conduct some sort of
mitigation investigation.” 588 U.S. —, 130 S. Ct. 447, 453
(2009). And in Rompilla v. Beard, the Court held counsel’s
mitigation investigation deficient despite the defendant’s
“minimal” contributions and refusal to discuss his
background. 545 U.S. 374, 381–82 (2005). In contrast, the
Court has explained, a defendant’s active obstruction of
counsel’s efforts to perform a mitigation investigation can
prevent him from showing prejudice under Strickland. See
Schriro v. Landrigan, 550 U.S. 465, 466 (2007). Except in
that circumstance, the Court has recognized, a competent
attorney would independently seek mitigation evidence rather
than rely on the defendant’s representations about his past.

Moreover, the ABA Guidelines in effect at the time of
Miles’s sentencing specified that “[t]he investigation for the
preparation of the sentencing phase should be conducted
regardless of any initial assertion by the client that mitigation
is not to be offered.” See ABA Guidelines for the
40 MILES V . RYAN

Appointment and Performance of Counsel in Death Penalty
Cases 11.4.1(C) (1989). “Prevailing norms of practice as
reflected in American Bar Association standards . . . are
guides to determining what is reasonable . . . .” Strickland,
466 U.S. at 688.

The state court did recite the general, two-prong
Strickland standard at the beginning of its opinion (under the
heading “standard of review”). But then, as evidenced by the
passages quoted above, the court did not apply that standard
in accord with clearly established Supreme Court precedents
when evaluating the substance of Miles’s claim as it related
to Sattler’s investigation of his background. Instead, it held
that there cannot be ineffective assistance of
counsel—indeed, the question cannot even be litigated—if
the defendant did not affirmatively inform his counsel at trial
of the information he now contends should have been
developed and used.

A similar sequence occurred in Lafler v. Cooper, in which
the state court articulated the correct standard established by
Strickland but then “fai[ed] to apply Strickland to assess the
ineffective-assistance-of-counsel claim respondent raised,”
meaning that “the state court’s adjudication was contrary to
clearly established federal law.” 132 S. Ct. 1376, 1390
(2012); see also Premo v. Moore, 131 S. Ct. 733, 743 (2011)
(citing Bell v. Cone, 535 U.S. 685, 694 (2002), for the
proposition that “[a] federal habeas court may issue the writ
under the ‘contrary to’ clause if the state court applies a rule
different from the governing law set forth in our cases . . . .”).
In sum, the Supreme Court has never imposed an affirmative
disclosure obligation on defendants and has recognized that
attorneys have an obligation to investigate mitigation
 MILES V . RYAN 41

evidence regardless of whether the defendant has provided
mitigating information to counsel.

The majority argues that it is wrong to “attribut[e] strict
rules to [the Supreme] Court’s recent case law.” Maj. Op. at
30 (quoting Cullen v. Pinholster, 131 S. Ct. 1388, 1406–07
(2011)). I agree entirely. My argument is not that we should
apply a bright-line rule when evaluating the performance of
counsel; my argument is that the Arizona Superior Court
erred by doing just that, treating the evaluation of Miles’s
Strickland claim as if it turned entirely on the fact that he
could have told his lawyer about his childhood but did not do
so. The Arizona Superior Court’s flat statement that “an
attorney should be able to rely on his/her client to bring
pertinent facts to his/her attention” is thus squarely
inconsistent with clearly established Supreme Court law.
Miles’s claim should therefore be reviewed de novo.

B. Ineffective Assistance of Counsel

In evaluating the merits of Miles’s ineffective assistance
of counsel claim, I begin by comparing with some clarity and
depth the facts about Miles’s background known to Sattler
before the sentencing hearing and the facts that came to light
during his state habeas proceedings.

The record paints a fairly clear picture of what Sattler
knew about Miles’s background before his sentencing.
Viewed next to what came out later, it wasn’t much. In a
detailed letter to Dr. Levy, Sattler wrote that Miles was
adopted when he was two months old, and that “all the
information I have received about [Miles’s adoptive mother]
indicates that she was very devoted to Kevin and worked very
hard to give him material things as well as a great deal of love
42 MILES V . RYAN

and affection.” Sattler notes that Miles moved to Winslow
with his adoptive mother when he was young and then
discusses his high school years, indicating that he was “well
liked,” “active in student activities,” and that “there was
never any incidence of violence in his school years that
anyone is aware of.” The information about Miles’s pre-high
school life takes up one paragraph in the letter.

After interviewing Miles, Dr. Levy wrote a letter to
Sattler in which he indicated that Miles’s adoptive mother
“was a single parent who held a variety of jobs from
professional to laborer,” and that her habit of frequently
changing jobs may have been due to alcoholism. Still, Dr.
Levy says, Miles’s “early years were described as good ones
and ‘pretty normal.’” The Presentence Report does not shed
any additional light on Miles’s childhood, repeating the
assertion that his mother was an alcoholic and that “she
cooked, waited tables, and worked at a convenience store,
before becoming a nursing home administrator.” The PSR
also notes that Miles had trouble fitting in because he was
black in a small Arizona town. This, then, was what Sattler
knew of Miles’s childhood: that he was adopted at a young
age and that his adoptive mother may have been an alcoholic,
but that she worked hard and provided him with an
upbringing that was “pretty normal.”

The investigations conducted after Miles was sentenced,
which resulted in a 33-page report prepared for his state
habeas proceedings, paint a very different picture, one rife
with drugs, prostitution, and violence. Miles’s adoptive
mother, Lois, was married to a pimp named Alfred Miles,
who ran a bar, restaurant, and hotel in Tulsa called El
Rancho. Miles’s birth mother was one of Alfred’s prostitutes,
and may have been a heroin addict. Both Lois and Miles’s
 MILES V . RYAN 43

birth mother lived in rooms at the El Rancho. Lois was
terrified of Alfred and often heard him beating Miles’s birth
mother mercilessly, possibly while she was pregnant with
Miles. Lois informally adopted Miles, and when he was two
she took him and fled to Arizona, settling in Winslow.

In Winslow, Lois met Jasper Renfro, who operated a bar
called the Prairie Moon, which had rooms in the back that
were rented to prostitutes for $2.00. Lois began working
there as a prostitute and bartender, and moved into a two-
bedroom house next door. Lois and Miles slept in one room,
and prostitutes turned tricks in the other. When Lois had a
customer, she would ask one of the other prostitutes to watch
Miles while she was occupied. Lois drank heavily, and
although her fellow prostitutes insisted that none of them
used drugs, a Winslow police officer who was interviewed
once found heroin at the house and recalled that the women
there were “all drug addicts.”

Kevin Hernandez, who was Miles’s age and grew up on
the same block, remembered looking over the fence that faced
the alley behind the Prairie Moon and seeing prostitutes
having sex. He also remembered hearing gunfire on
weekends. At one point during Lois and Miles’s time at the
house, “a girl named Charmaine shot an Indian at the house.
The police followed the blood trail to the front door and tore
the house apart looking for the gun.

When Miles was around 7, he and Lois moved to another
house a few blocks away from the Prairie Moon. A prostitute
named Connie, who lived with Lois and Miles next to the
Prairie Moon and was also a heroin addict, was shot and
killed about a year after Lois and Miles moved to their nearby
house. Lois was trying to turn her life around at this point,
44 MILES V . RYAN

and took a job as a cook, although she may have continued
working as a prostitute (her boss was a “known pimp,”
according to the investigator’s report, and she occasionally
left Miles alone at the restaurant). 1979, when Miles was
around 11, Lois got a job as a dietary aide at a convalescent
center. She worked there for seven years, rising to become
the administrator before being fired for drinking on the job
the same year Miles graduated from high school. Lois and
Miles slept in the same bed until he was 14.

1. Deficient Performance

The majority views Sattler’s decision not to further
investigate Miles’s background as reasonable in light of her
strategic decision to present Miles as a fundamentally normal
person who had a viable chance of being rehabilitated if
spared execution. While the Supreme Court has instructed us
to treat with deference the strategic decisions of counsel, see,
e.g., Pinholster, 131 S. Ct. at 1407–08, it is hard to see how
Sattler could have made a reasonable strategic choice not to
present the harrowing details of Miles’s childhood when she
knew virtually nothing about what that childhood was like.
Treating this strategic decision as determinative introduces an
element of circularity into the analysis: Sattler’s choice not to
learn about Miles’s childhood was reasonable because it was
part of her strategy, which she adopted because she knew
nothing about Miles’s childhood. As the Supreme Court has
observed, “counsel’s failure to uncover and present
voluminous mitigating evidence at sentencing [cannot] be
justified as a tactical decision . . . [where] counsel had not
‘fulfilled their obligation to conduct a thorough investigation
of the defendant’s background.’” Wiggins v. Smith, 539 U.S.
510, 523 (2003) (quoting Williams, 529 U.S. at 396). In other
words, a strategic choice is only reasonable to the extent that
 MILES V . RYAN 45

“the investigation supporting [that choice] . . . was itself
reasonable.” Wiggins, 539 U.S. at 523 (emphasis in
original). The relevant question, then, is whether Sattler’s
investigation “fell below an objective standard of
reasonableness. . . . under prevailing professional norms.”
Strickland, 466 U.S. at 688.

Sattler’s efforts to investigate Miles’s background fell
below prevailing professional norms. Sattler did work with
an investigator in preparation for trial, but that investigator
was not trained in investigating homicide cases or conducting
mitigation investigations. Sattler’s letters to the investigator
show that Sattler was focused on finding people in Tucson
who might know something about the crime, rather than on
finding information about Miles’s background.

Sattler did ask the investigator to interview four people
from Winslow. Of these, the investigator spoke to three high
school friends who knew nothing of Miles’s earlier
childhood. The investigator submitted the fruits of these
interviews to Sattler in two “interview reports,” each a single
page, and no formal background report was prepared. The
investigator never traveled to Winslow. When she was
deposed in connection with Miles’s federal habeas petition,2
the investigator had no recollection of Miles’s name or of her
work on the case, and, looking over the record, she expressed
surprise at how little information her investigation produced.
Although Sattler knew that Miles had been adopted at an
early age and that his mother was an alcoholic who had

2
Because AEDPA deference does not apply to the state court’s rejection
of Miles’s Strickland claim, Pinholster does not prevent consideration of
evidence that was before the district court under § 2254(e)(2). Pinholster,
131 S. Ct. at 1401.
46 MILES V . RYAN

trouble holding a job, she and her investigator did nothing to
find out about his pre-high school life.

In short, this was not a case in which counsel “‘did spend
considerable time and effort investigating avenues for
mitigation.’” Pinholster, 131 S. Ct. at 1404 (quoting
Pinholster v. Ayers, 590 F.3d 651, 701–02 (9th Cir. 2009)
(Kozinski, J., dissenting)). The ABA guidelines in effect at
the time made clear that “[t]he investigation for preparation
of the sentencing phase . . . should comprise efforts to
discover all reasonably available mitigating evidence.” ABA
Guidelines 11.4.1(C). Thus, under the prevailing professional
norms at the time of Miles’s sentencing, “counsel had an
‘obligation to conduct a thorough investigation of the
defendant’s backrgound.’” Porter, 130 S. Ct. at 452 (quoting
Williams v. Taylor, 529 U.S. 362, 396 (2000)).

Like the investigations in Porter and Wiggins, Sattler’s
work here fell well short of the thoroughness required in
capital cases. As in Porter, Sattler “ignored pertinent
avenues for investigation of which [she] should have been
aware,” 130 S. Ct. at 453, i.e., Miles’s life up until he entered
high school. As in Wiggins, Sattler “abandoned [her]
investigation of [Miles’s] background after having acquired
only rudimentary knowledge of his history from a narrow set
of sources.” 539 U.S. at 524. In Wiggins, those sources
included psychological tests, records from the Department of
Social Services documenting petitioner’s time in the foster
system, and a one page account of petitioner’s personal
history contained in the presentence report. The materials
available to Sattler were considerably more scant. She did
not ask Dr. Levy to conduct any psychological tests, and she
obtained no comparable government records concerning
Miles’s childhood.
 MILES V . RYAN 47

Even if Miles’s reticence about disclosing the details of
his childhood with Sattler is taken as a factor in the deficient
performance calculus (rather than the sole determinant, as the
state court held), that reticence does not countervail Sattler’s
failure to investigate. After all, Miles may not have even
remembered some of the circumstances of his early life, yet
“early childhood trauma, even if it is not consciously
remembered, may have ‘catastrophic and permanent effects
on those who . . . survive it.’” James v. Ryan, 679 F.3d 780,
815 (9th Cir. 2012) (quoting Hamilton v. Ayers, 583 F.3d
1100, 1132 (9th Cir. 2009)). Miles “may have been fatalistic
or uncooperative, but that does not obviate the need for
defense counsel to conduct some sort of mitigation
investigation.” Porter, 130 S. Ct. at 453 (emphasis in
original) (citing Rompilla, 545 U.S. at 381–82). Sattler’s
investigation into Miles’s background, particularly her failure
to learn any of the disturbing facts about his early childhood,
was not reasonably in line with prevailing professional
norms.

2. Prejudice

The majority characterizes the additional information
about Miles’s childhood that came to light after his
sentencing as “largely cumulative” of what was before the
sentencing judge, and concludes that even if Sattler’s
representation was not constitutionally deficient, there was no
“reasonable probability that, but for [Sattler’s] unprofessional
errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. I cannot agree.

It is worth remembering how little of Miles’s pre-high
school life was in the record when he was sentenced. The
48 MILES V . RYAN

PSR contains two paragraphs of social history, and has this to
say about Miles’s childhood:

The defendant reported his adoptive mother
was an alcoholic. She cooked, waited tables,
and worked at a convenience store, before
becoming a nursing home administrator. He
reported he was not accepted by everyone
because he was black, and his mother was
white. He also indicate[d] he experienced
‘culture shock’ when he and his mother
moved into a more affluent neighborhood and
attended a better school.

Dr. Levy’s report, which was also before the sentencing
judge, indicates that Miles’s mother was an alcoholic and that
racism was an issue for him, but notes that “his early years
were described as good ones and ‘pretty normal.’” These
brief summaries are, to put it mildly, a far cry from the
information that came to light later, which showed that both
Miles’s birth and adoptive mothers were prostitutes, that
Miles’s birth mother was a heroin addict and may have been
beaten by her pimp while she was pregnant with him, and that
Miles spent his early years living in a two bedroom brothel,
surrounded by prostitution, heroin use, alcohol abuse,
shootings, and even murder. To call this childhood anywhere
near “pretty normal” is strange indeed. The difference
between these two narratives is one of kind, not degree.

I also cannot accept the majority’s view that this
mitigation evidence is far milder than that in James v. Ryan,
679 F.3d 780. As in James, Miles survived a childhood rife
with violence, drug use, and crime. While there is no
indication that Miles was, like James, physically abused,
 MILES V . RYAN 49

James was not raised by prostitutes, nor was his childhood
home the scene of murders and shootings. For, contrary to
the majority’s account, James did not “grow up” in the
abusive circumstances described. Instead, at age four, James
was adopted by parents who were strict but loving, and his
life circumstances from thence forward took a dramatic turn
for the better. Id. at 812. Miles saw his situation improve
somewhat as he aged, but he and his mother didn’t move out
of the house next to the Prairie Moon until he was seven, and
his mother may have continued to work as a prostitute until
he was 11. They slept in the same bed until he was 14. My
point here is not to downplay the horrors faced by the young
James, but to suggest that he and Miles survived conditions
that were far more comparable than the majority lets on.

The relevant question, at any rate, is not whether Miles’s
story is better or worse than any of the sad tales that have
graced the pages of the Federal Reporter, but whether there
is a “reasonable probability” that he would not have been
sentenced to death had it been told. See Strickland, 466 U.S.
at 694. Notably, “it is not necessary for the habeas petitioner
to demonstrate that the newly presented mitigation evidence
would necessarily overcome the aggravating circumstances.”
Correll v. Ryan, 539 F.3d 938, 951–52 (9th Cir. 2008). What
is required “is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. In
analyzing whether the new mitigation evidence creates the
required “reasonable probability,” Strickland instructs us to
consider whether “the omitted evidence would have changed
the conclusion that the aggravating circumstances outweighed
the mitigating circumstances.” Id. at 700.

Applying this framework shows that Miles suffered
prejudice due to Sattler’s deficient performance. The
50 MILES V . RYAN

aggravating factors established at sentencing were not
overwhelming: The judge relied on four, one of which was
later overturned by the Arizona Supreme Court. The other
three were based on (1) Miles’s three armed robberies, (2) the
profit motive behind Miles’s participation in the crime, and
(3) the “especially cruel manner” in which the murder was
committed, a finding based on the fear suffered by Baeuerlen
during the twenty minute drive out to the desert. Against
these aggravating factors, the judge considered and rejected
a variety of statutory and non-statutory mitigating factors.
While the judge mentioned that he had received numerous
letters attesting to Miles’s previously non-violent nature, he
discounted the letters as irrelevant when considering the
violent felon before him. There was no mention of Miles’s
childhood.

Given the weakness of the aggravating factors and the
total absence of any mention of Miles’s childhood in the
judge’s sentencing, the additional mitigating evidence Sattler
could have uncovered is sufficient to “undermine confidence
in the outcome.” Strickland, 466 U.S. at 694. “[A] penalty
phase ineffective assistance claim depends on the magnitude
of the discrepancy between what counsel did investigate and
present and what counsel could have investigated and
presented.” Stankewitz v. Woodford, 365 F.3d 706, 716 (9th
Cir. 2004). Here, that discrepancy was substantial. As in
Williams, “the graphic description of [Miles’s] childhood . . .
might well have influenced the [judge’s] appraisal of his
moral culpability.” 529 U.S. at 398.3

3
Because I would reverse on the present record, I do not address
whether Martinez v. Ryan, 132 S. Ct. 1309 (2012), allows Miles to
introduce new facts at this stage.
 MILES V . RYAN 51

C. Conclusion

Reviewing Miles’s claim de novo, it is clear that Sattler’s
performance was deficient, and that Miles was prejudiced by
that deficiency. Sattler could not have reasonably chosen the
particular strategy she decided upon without first making a
reasonable investigation into Miles’s past, and the
significance of the missing information is sufficient to
undermine my confidence that Miles would nevertheless have
been sentenced to death. I therefore dissent.