dissenting:
I respectfully dissent. The record in this case supports the district court’s determination that Fred Robinson’s claim challenging application of the cruelty prong of the “cruel, heinous and depraved” aggravating factors under Arizona’s death penalty statute is procedurally barred. Although a closer question is presented by application of the heinous/depraved prongs of the statutory aggravating factors, the Arizona state courts did not act arbitrarily and capriciously in applying the heinous/depraved prongs of the statutory aggravating factors when considering the facts underlying the murder of the elderly victim. See Styers v. Schriro, 547 F.3d 1026, 1033 (9th Cir.2008) (“A state court’s finding of an aggravating circumstance in a particular case — including a de novo finding by an appellate court that a particular offense is especially heinous or depraved — is arbitrary or capricious if and only if no reasonable sentencer could have so concluded.”) (citation, alterations, and internal quotation marks omitted). Finally, as recently reiterated by the United States Supreme Court, any failure by defense counsel to present additional mitigation evidence did not prejudice Robinson.
*1114As a preliminary matter, I note that even if the heinous/depraved prongs of the statutory aggravating factors were arbitrarily applied in determining the sentence to be imposed, Robinson’s procedural default of his claim involving the cruelty prong of the statutory aggravating factors would be sufficient to sustain imposition of the death penalty. See State v. Gretzler, 135 Ariz. 42, 659 P.2d 1, 10 (1983). Therefore, I first examine the question of procedural default of the claim involving application of the cruelty prong of the statutory aggravating factors.
To avoid application of the procedural bar to his claim challenging application of the cruelty prong of the statutory aggravating factors, Robinson was required to “present[ ] the factual and legal basis for his claim[ ] to the state courts ...” Moormann v. Schriro, 426 F.3d 1044, 1056 (9th Cir.2005) (emphasis added).
Before the Arizona Supreme Court, Robinson argued generally that “imposition of the death penalty was in violation of the statute and of the Constitution of the United States.” We have not deemed a conclusory argument such as this sufficient presentation of a claim to avoid a procedural bar. See Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir.2005) (“In this circuit, the petitioner must make the federal basis of the claim explicit either by specifying particular provisions of the federal Constitution or statutes, or by citing to federal case law.”). Indeed, Robinson’s specific argument regarding the cruelty prong of the statutory aggravating factors stated:
Cruelty involves the infliction of pain and distress on the victims. The State must show by evidence that the victims actually suffered physical or mental pain prior to the death. Cruelty is not shown if the evidence is inconclusive. The State produced no evidence to show that the victim actually suffered pain or distress to the extent necessary to make this finding. Mr. Hill testified that he was not aware of what actually occurred because he was knocked out, not shot. Mrs. Hill’s last words, as heard by Mr. Hill, concerned a desire that her feet be covered up, not a plea for mercy or an expression of fear that she was about to be killed. There is no concrete evidence to support the State’s theory that Mr. Hill was shot first but even if he was, Mrs. Hill was shot almost immediately thereafter without waiting a long time to be shot.
(Emphasis in the original) (citations omitted). The Arizona Supreme Court addressed the cruelty factor in the context presented by Robinson. See State v. Robinson, 165 Ariz. 51, 796 P.2d 853, 862-63 (1990).
However, in his amended habeas petition, Robinson completely shifted his argument regarding the cruelty prong. There, Robinson asserted:
In Robinson’s case, evidence arguably existed from which to conclude that Mrs. Hill suffered, thereby putting at issue the applicability of the ‘cruelty’ factor to the defendants ... Significantly, neither Judge Bradshaw nor the Arizona Supreme Court made any finding that Robinson either “intended” or “reasonably foresaw” that Mrs. Hill would suffer as a result of Robinson’s actions. The evidence presented at trial or sentencing was that Robinson was not in the house at the time of the murder. No evidence was introduced at trial and sentencing, excluding the hearsay statements from Washington that were later disallowed, that Robinson had any knowledge that a murder would even take place ...
(Citations omitted).1
*1115The majority characterizes the variant argument in the federal habeas petition as a more detailed theory than the one Robinson presented to the Arizona Supreme Court. See Majority Opinion, p. 1102. However, the theory presented in the federal habeas petition was markedly different than the theory presented before the Arizona state courts. In the Arizona state courts, Robinson argued that the cruelty prong of the statutory aggravating factors was inapplicable because there was no evidence that the victim actually suffered significant pain or distress. In his federal habeas petition, Robinson argued that the cruelty prong of the statutory aggravating factors was inapplicable because there was no evidence that Robinson intended or reasonably foresaw that the victim would suffer. In the state court, Robinson’s argument focused on the victim’s pain (or lack thereof). In the federal court, Robinson’s argument focused on his intent to cause the victim pain (or his lack of intent). It is more accurate to say that Robinson presented a different theory in federal court than to say that he presented a more detailed theory in federal court. More to the point, the different theory argued in federal court was never presented to the state courts and is now procedurally barred. See Moormann, 426 F.3d at 1056 (requiring presentation of the factual and legal bases of the petitioner’s claim to the state courts).
Robinson’s citation to Jeffers v. Ricketts, 832 F.2d 476 (9th Cir.1987), rev’d sub nom. Lewis v. Jeffers, 497 U.S. 764, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990), is singularly unpersuasive. In fact, Robinson’s citation to Jeffers underscores his emphasis in state court on the asserted lack of pain to the victim. Immediately after the citation to Jeffers, Robinson argued that: “An especially cruel murder involves the senseless or sadistic infliction of great pain. That is not present in this case and, therefore, the sentence must be supported by heinous and depraved ...” (Citation Omitted). Absolutely no mention was made of Robinson’s lack of intent to cause pain when discussing the cruelty prong of the statutory aggravating factors. More importantly, Robinson’s reference to the fact that he was not inside the residence was made in conjunction with his discussion of the heinous prong of the statutory aggravating factors, not as part of his challenge to application of the cruelty prong of the statutory aggravating factors. Fairly read, Robinson’s brief to the Arizona Supreme Court simply did not raise the issue he now argues, i.e., whether the evidence adequately established that Robinson had the intent to inflict pain upon the victim, or reasonably foresaw that the victim would suffer pain. For that reason, I would hold that Robinson’s challenge to the cruelty prong of the statutory aggravating factors is foreclosed.
Because the existence of facts supporting application of the cruelty prong of the statutory aggravating factors would be adequate to sustain the death sentence imposed, I would end my analysis of Robinson’s sentencing challenge with that conclusion. However, because my col*1116leagues in the majority have also concluded that the state court’s finding that the victim was killed in a heinous/depraved manner was arbitrary, I will comment briefly on that point.
I note initially that Robinson’s absence from the interior of the residence does not give him a pass on culpability for the murder of the elderly victim. See State v. Dickens, 187 Ariz. 1, 926 P.2d 468, 491-92 (1996) (in banc); see also State v. Nichols, 219 Ariz. 170, 195 P.3d 207, 213 (Ct.App. 2008). (“[Ejvidence that a defendant was not present at a crime scene is not, as a matter of law, directly contrary to or inconsistent with a guilty verdict.”) (citation omitted).
We should also keep in mind that “[f]ederal habeas review of a state court’s application of aggravating factors is limited to determining whether the state court’s finding was so arbitrary or capricious as to constitute an independent due process or Eighth Amendment violation.” Moormann, 426 F.3d at 1053 (9th Cir.2005) (citation and internal quotation marks omitted). “We examine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (citation and internal quotation marks omitted). When viewed through this prism rather than through the lens of a post-hoc factfinder, Robinson’s claim fails.
Although the Arizona case of State v. Carlson, 202 Ariz. 570, 48 P.3d 1180 (2002) (in banc) makes this a closer case on the merits, I remain of the view that the facts support application of the heinous/depraved prongs of the statutory aggravating factors, especially when one considers that the same court that decided Carlson rejected Robinson’s challenge to application of the heinous/depraved prongs of the statutory aggravating factors.
In Carlson, 48 P.3d at 1193, the Arizona Supreme Court held that “[tjhe heinous and depraved portion of the [statutory aggravating factors] focuses on the defendant’s state of mind at the time of the crime. However, the inquiry concentrates on the defendant’s mental state as evidenced through[his] actions ...” (citations omitted).
Robinson relies on his absence from inside the residence to defeat application of the heinous/depraved prongs of the statutory aggravating factors. However, the Arizona Supreme Court did not view Robinson’s absence as determinative when discussing the heinous/depraved prongs. See Robinson, 796 P.2d at 862. To the contrary, the Arizona Supreme Court noted that “Robinson provided the murder weapon and transported [the triggerman] to the home of his common-law wife’s parents. There is no evidence that [the triggerman] knew the [victims] or where they lived but for the guidance of Robinson.” Although Robinson did not commit the actual murder, the record reflects, and the Arizona Supreme Court found, that he definitely set the murder in motion. See id. at 864 (noting that “Robinson masterminded the trip”). Although one could disagree with that finding, it is much more difficult to argue that the finding is arbitrary. Indeed, to the extent Robinson challenges the Arizona Supreme Court’s interpretation of the meaning of the statutory aggravating factors, his challenge is unavailing. See id. at 863 (“As difficult as it may be to define depravity, the gangland-style action of forcing two elderly persons to lay face down on the floor, tying them up, then senselessly shooting them amounts to depraved conduct.”) (citation omitted); see also, Langford v. Day, 110 F.3d 1380, 1389 (9th Cir.1996) (“We accept a state court’s interpretation of state law, and alleged errors in the application of state law are *1117not cognizable in federal habeas corpus ... ”) (citations omitted).
The evidence that a year earlier Robinson and two cohorts had entered Susan’s sister’s home in search of Susan, Robinson’s common-law wife, is not so easily discounted. The two cohorts entered the house with guns and tied up Susan’s sister and Susan’s niece. Although no one was harmed, the record reflects that it was only the presence of Susan’s niece that prevented a murder from occurring.
Finally, the United States Supreme Court has decided two cases just this month that, in my view, foreclose a determination that Robinson was prejudiced by any failure of defense counsel to present additional mitigation evidence during the sentencing phase of the proceedings. In Bobby v. Van Hook, — U.S. -, 130 S.Ct. 13, 15, 175 L.Ed.2d 255 (2009), a preAEDPA case, see id. at 14, the Supreme Court considered whether Van Hook’s “attorneys were ineffective during the penalty phase because they did not adequately investigate and present mitigating evidence ...” See id. at 16. Applying Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court ruled that Van Hook suffered no prejudice because “the minor additional [mitigation] details the trial court did not hear would [not] have made any difference.” Van Hook, ■ — ■ U.S.-, 130 S.Ct. 13, 17, 175 L.Ed.2d 255.
Similarly, in Wong v. Belmontes, — U.S.-, 130 S.Ct. 383, — L.Ed.2d-(2009), the Supreme Court found a lack of prejudice where the petitioner accused his counsel of failing to “dig deeper” for additional mitigating evidence. See id. at 386.
In this case, the majority lists the following “classic mitigation evidence” that defense counsel, in the majority’s view should have discovered: “Robinson’s impoverished background; his unstable and often abusive upbringing; his multiple episodes of childhood sexual abuse; his low intelligence; his personality disorder; his non-violent nature; and his potential for rehabilitation.” See Majority Opinion, p. 1110-11. However, the Supreme Court’s rulings in Van Hook and Wong clarify that these asserted failings cannot support a claim under Strickland. Fortuitously, in this case, we do not have to try to determine whether the asserted deficiencies would have made a difference in the sentence imposed. In this case, we know the answer because the same judge who imposed the sentence of death presided over the postconviction review proceedings. After hearing all the mitigation evidence that Williams mustered after-the-fact, the sentencing judge declined to entertain the prospect of changing the previously imposed sentence.
At the postconviction review proceedings before the sentencing judge, Williams presented testimony from Juan Gonzales, a Corrections Officer at the Florence Correctional Institution. Officer Gonzales testified favorably regarding Robinson’s contact with his family and his lack of disciplinary problems. Officer Gonzales testified that Robinson had not displayed any violent tendencies, was “very easy to work with,” and got along well with the other inmates, and had been classified at the lowest level of security since his incarceration. Officer Gonzales informed the court that Robinson attended church “quite often.” According to Officer Gonzales, if Robinson were to be placed into the general population, “he would do well.”
Dr. Tod Roy, a psychologist, testified that, in addition to conducting a clinical interview with Robinson, he administered the Minnesota Multi-Phasic Personality Inventory test, intelligence testing, the Rorschach diagnostic test and the Thematic Apperception test. Dr. Roy also re*1118viewed Robinson’s school records and the psychiatric evaluation conducted by Dr. Eva McCullars.
In addition, Dr. Roy interviewed Robinson’s father. Dr. Roy opined that Robinson “had the potential to be rehabilitated”; that he had close family ties; that he had good behavior while imprisoned, noting that he “carrie[d] the lowest risk status that can be applied to anyone on death row”; and that Robinson was not dangerous or likely to re-offend.
Dr. Roy disclosed test results reflecting Robinson’s low level of intelligence and educational achievement, and testified at length about Robinson’s disadvantaged childhood, describing Robinson as “born into an impoverished environment of a rural nature ...” He relayed that Robinson lived in a segregated community and was once “pulled off a sidewalk by his aunt to allow a white woman to pass.”
By far the most traumatic event described by Dr. Roy was Robinson’s being sodomized by his mother’s boyfriend when he was a child. Dr. Roy also informed the court about the heartbreak Robinson experienced when Robinson’s father publicly repudiated Robinson’s mother and most of Robinson’s siblings during divorce proceedings. Finally, Dr. Roy testified that Robinson’s aunt sexually abused him for a period of time, and that he was subjected to beatings.
After hearing all this evidence, the post-conviction review judge, who was also the sentencing judge, determined that the evidence presented would not have affected the sentence imposed.
Specifically, the post-conviction court ruled:
Mr. Robinson has been examined and found to have no mental [sic] evidence of mental disease per Dr. McCullars and an Axis II suggestion of Borderline Personality Disorder by Dr. Roy. Nothing in the record supports a suggestion that this defendant was unaware of the activities at the Hill home on the evening of the crime and the court now rejects, and would have at sentencing hearings, rejected a suggestion of Borderline Personality Disorder. This court accepts as true that Mr. Robinson has an antisocial personality disorder and is poorly adjusted to living in society, but there is nothing in his makeup now, nor in the opinion of the experts was there anything at the time of the offenses, which lessened his ability to differentiate right from wrong or to conform his actions with the law ...
The court was aware that Robinson was a model prisoner, but remained unconvinced that his model behavior translated into a potential for rehabilitation or lack of future danger to society. The court held that “to the extent any[of the claimed mitigating factors] may be, or have been present[they] certainly are/were not sufficient to affect the sentence imposed.” The court explicitly discussed that although a lack of education was shown, no lack of intelligence was shown. Rather, the post-conviction court reviewed Robinson as “experienced, street smart and ... wise enough to plan carefully and act forcibly for his own well being.” The court reiterated its view that “[n]one of these matters are, or have been sufficient to mitigate [Robinson’s] sentence imposed.”
The state post-conviction court fully considered the mitigation evidence presented by Robinson. Its subsequent emphatic ruling that the mitigation evidence would not have affected the sentence imposed compels a conclusion of no prejudice under the rationale of Van Hook and Wong. For that reason and because Robinson’s challenge to the cruelty prong of the statutory *1119aggravating factors is procedurally barred, I respectfully dissent.
. Acceptance of Robinson’s argument could minimize the importance of exhaustion in the habeas context. A habeas petitioner could present one argument to the state courts, and, once that argument is rejected, the petitioner could strategically shift to a new argument in her or his federal habeas petition. This is reflected by Robinson's contradictory arguments before the state court ("The State produced no evidence to show that the victim actually suffered pain or distress to the extent necessary to make this finding.”) (emphasis in the original), and in his habeas petition ("In Robinson's case, evidence arguably existed from which to conclude that Mrs. Hill suffered ...").