Gregory Dickens v. Charles L. Ryan

1302 41,129 Nijhawan, (quoting

of.” DICKENS, 2294)). Gregory ac Petitioner- Aguilar-Turcios Whether engag images of minors tually possess did Appellant, conduct “makes no sexually explicit ing v. likewise, Id. at 2286. “And difference.” [possessing whether he ever admitted RYAN, Respondent-Appellee. Charles sexually ex engaging of minors images Id. We plicit is irrelevant.” conduct] No. 08-99017. Arti Aguilar-Turcios’s hold that

therefore Appeals, Court of United States qualify as an does not cle 92 conviction Circuit. Ninth felony under 8 U.S.C. aggravated 1101(a)(43)(I).11 En Argued and Submitted 24, 2013. IV. Banc June Aguilar-Turcios’s conclude We 23, 2014. Decided Jan. quali- does not Article 92 conviction UCMJ Therefore, felony. we fy aggravated anas case, and we jurisdiction over this

have and remand grant petition for review agency for the to the BIA with instructions against removal order to vacate the petitioner. and REMANDED.

GRANTED reopen after our decision of June 2002. Hav- no need for us to address whether 11. There is neither, ing Secretary avoid qual- done cannot Aguilar-Turcios's Article 134 conviction general principle application of the of res gov- aggravated felony ifies as an because judicata.”). ruling appeal ernment did not the IJ's could not serve as a basis for Article 134 Moreover, only appeal did ICE not not accept government must removal. The Board, government never issue to the but the litigation strategies, consequences of its argued to this court that we should consider See, e.g., any must defendant. Lezama-Garcia Article conviction or remand to the 134 Holder, (9th Cir.2011) v. 666 F.3d 535 for it to consider the issue until its Board (“The government contends that the IJ did By failing petition rehearing. second depar- decide whether an unintentional any argument in of its brief- raise this several actually place.... court, took It is well estab- ture gov- ing opportunities before this objection party that if a fails to raise an lished argument that we ernment waived its should judgment, he or she waives to an issue before the Board for it to determine remand to challenge appeal. right to the issue on Aguilar-Turcios’s 134 convic- whether Article challenge failed to the factual aggravated felony. [ICE] Because qualifies as an tion Lomeli, departure, (9th Lezama’s re- circumstances of Clem v. 566 F.3d (quoting Cir.2009) (holding argument not warranted.” Slaven v. mand is that an not ad- Co., (cit- Trading Transp. answering Am. 146 F.3d waived dressed in an brief is Gonzales, Gamboa-Cordenas, (9th Cir.1998))); ing United States Bravo-Pedroza (9th Cir.2007) ("The (9th Cir.2007) (where appellees F.3d F.3d answering argument appealed the in their government ... could have IJ’s fail to raise brief, it”))). "they have waived ... It could have moved to 1990 decision (briefed argued)

Robin C. Konrad Baich, and Dale A. Assistant Federal Pub- Defenders, lic Federal Public Defender’s Office, Phoenix, AZ, Petitioner-Appel- lant. Todd, Attorney

John P. Assistant Gen- eral, Section, Capital Litigation Arizona Office, AZ, Attorney Phoenix, General’s Respondent-Appellee. KOZINSKI, ALEX

Before: Chief Judge, PREGERSON, and HARRY KIM WARDLAW, McLANE MARSHA S. BERZON, BYBEE, JAY S. CONSUELO CALLAHAN, IKUTA, M. SANDRA S. N. SMITH, MURGUIA, RANDY MARY H. MORGAN CHRISTEN and PAUL J. WATFORD, Judges. Circuit SMITH, Judge, N.R. Circuit delivered Court, joined in opinion whiсh is by Judges full IKUTA and WATFORD. KOZINSKI, BYBEE, Judge Judge Chief join I Judge CALLAHAN Parts and PREGERSON, WARDLAW, Judges II. BERZON, MURGUIA, and CHRISTEN join Part III.

OPINION SMITH, Judge:

N.R. Circuit Gregory prisoner Arizona state Scott appeals the district court’s denial Dickens 1991, early Dickens September corpus § 2254 habeas 28 U.S.C. of his Yuma, days A few court’s moved to Arizona. affirm the district petition. We (1) move, Amaral contacted Dickens after his conclusion that En unreasonably apply running away explained not that he was Court did Florida, tick- 458 U.S. a bus purchased mund v. from home. Dickens (1982), and Tison L.Ed.2d 1140 to travel to Yuma. Amaral et for Amaral Arizona, September arrived in Yuma on (1987), the facts of this case days L.Ed.2d 127 spent the next several The two then Court did the Arizona River. Dick- recreating near the Colorado unreasonable deter- decision on an base its Amaral a .38-caliber revolver ens showed the facts. See 28 U.S.C. and, mination of recently acquired at some he had 2254(d). However, the dis we reverse together, their time Amaral point during Dickens’s inef of one of trict court’s denial by point- attempted to intimidate claims.1 of counsel fective assistance head. ing the revolver at Dickens’s that Dickens defaulted agree While we paid for Amaral’s food fairly present by failing claim to Yuma. transportation during his visit courts, we remand to claim to the Arizona on cash. On running But Dickens was low reassess whether allow the district court to 10, 1991, Amaral September Dickens and prejudice Dickens can establish cause “ways get money,” to more while discussed under procedural to excuse the default eating dinner at a Hardee’s restaurant. — U.S.-, Ryan, Martinez they plan robbery. a suggested Dickens (2012). 1309, 182L.Ed.2d 272 a who would They flipped coin decide robbery. first Amaral won. conduct the FACTS2 choice of gave Dickens then Amaral a sev- ac- January In Dickens became robbery. eral locations to commit the His fourteen-year-old then Tra- quainted with and a options included convenience store Amaral while vis Amaral. Dickens met highway stop. rest Amaral selected the at Grove Insti- working as a counselor Oak way,” stop rest since it was “out of the less Temecula, Oak Grove is tute California. busy, and “easier.” juveniles center for violent placement Dickens and Amaral left the restaurant Amaral lived at the time. where While Amaral, and to a area on the eastbound with Dickens learned drove rest working east of Yuma. Dickens “high patient risk” with a “violent side Interstate he was revolver from the explosive temper.” and Dickens also dis- removed .38-caliber glove compartment placed a nurse and and it on seat covered that Amaral battered carrying guns point in the vehicle. At some while wait- frequently bragged about pointed Amaral ing stop, again murders. at the rest being and involved several at head to intimi- working at Oak the revolver quit March Dickens Grove, waiting him. at the rest area friendship continued with date After but hours, approximately three Dickens Amaral. Dickens, P.2d 474-75 issues on 187 Ariz. 1. Dickens raises оther uncertified (in banc). separate Mem- appeal, presume which we address in a We the correct- concurrently Disposition filed with orandum findings unless ness of the Arizona court’s Opinion. convincing evidence. clear and rebutted 2254(e)(1). 28 U.S.C. substantially the 2. are drawn from These facts opinion in Court's State turn past walk their car and around. Bryan and Laura Bern- Amaral saw and highway, of the opposite From the side rest area for westbound enter stein moving Amaral freeway.3 Dickens observed side of the opposite traffic on the from light hand- Bernsteins across the beams of his head and either Dickens nodded if headlamps. they him their Amaral asked handgun or watched ed Amaral ready to die and then shot Laura in They agreed the seat. were remove it from Bernsteins, that, bright the head. Dickens saw the flash of once Amaral robbed gun as Amaral shot Laura. Laura fell ramp run down the westbound he would ground Bryan to the crouched down pick where Dickens would the rest area the re- over her. Amaral then recocked up. him volver, Bryan, him in pointed it and shot watched from his truck on the head. Amaral highway opposite side interstate, robbery approached observing After shoot- crossed the Bernsteins, they ings, if had the Dickens drove across the median and and asked [p.m.].” through sug- “9:17 the rest area. No evidence responded, time.4 Laura Bryan gests stopped to aid the Bern- pointed gun Amaral then steins, emergency called for medical assis- Bryan his wallet. Once surren- demanded tance, wallet, Amaral asked Laura for or otherwise notified authorities. dered his wallet, Amaral on picked up not have one. Dickens then her but she did asked, highway the Bernsteins to westbound side of the Amaral then ordered way given Bryan years walkie-talkie that had [Dickens] and Laura were both old. him, They years and had one with him in his [Dickens] had been married for three University. “Speaking graduated from Cornell When truck.” 926 P.2d at 474. And that murdered, walkie-talkie, traveling they they through were were then told [Dickens] asked, Amaral, they through Arizona en route to UCLAwhere Amaral 'No witnesses.’ fellowships gradu- replied, to undertake both received 'What?' 'You know what I [Dickens] mean, responded, ate work. no witnesses.’ Amaral you ‘What do no witness? If I kill mean jury heard evidence that the Bernsteins witnesses; them, If I leave them there are no area not the first car to enter the rest were here, replied, [Dickens] there are witnesses.' during the three hours ” court also ‘No witnesses.’ Id. The district Amaral testified Amaral waited for victims. However, summary. relied on this factual other cars entered that between four six showing presented at trial evidence and exited the rest area before the Bernsteins were inconsistent that Amaral's statements point, At a car full of six arrived. some testimony was contradicted and that his people wheth- entered. Dickens asked Amaral Ultimately, prisoners. the Assistant his fellow thought “pull he cоuld off” the er Amaral Attorney the Arizona General conceded before robbery people Amaral of those or whether jurors part the Supreme Court that "the one "something wait easier.” wanted to believe, the talk and trial court didn't was wait, they responded that should be- Amaral and that the Arizona about the walkie-talkie” many people were "too cause six believe, Supreme the walkie- Court "shouldn’t [they] had.” While we amount of bullets Thus, testimony.” we omit from our talkie testimony, we omit it from our mention this alleged summary any to the factual reference facts, rely in our of and do not on it statement However, walkie-talkie conversation. below, analysis because Enmund/Tison testimony jury’s disbelief of the walkie-talkie rely Supreme did not on this Arizona not show that the Arizona does testimony in its discussion of the evidence unreasonable, because Court’s decision was findings. supporting See the Enmund/Tison testimony rely in its court did on this Dickens, 926 P.2d at 490-91. supporting the En- discussion of the evidence Dickens, findings. P.2d Court noted that 4. The mund/Tison he carried a two- at 490-91. “Amaral also testified that replied go police eventually Amaral officers Dick- you “Do have the wallet?” arrested handed the wallet to Dick- that he did and on charges sexually abusing ens of Amaral (and the wallet and re- ens. Dickens searched boys) deadly other and assault with a explained it Amaral. Dickens turned weapon.5 During concerning an interview through driven Amaral that he had abuse, alleged Amaral told officers that “everything rest area to make sure was he and Dickens had been involved in the They then drove to the taken care of.” double homicide Yuma.

home of Dickens’s brother where Amaral cash, checks,

removed traveler’s and one PROCEDURAL HISTORY Bryan’s credit card from wallet. Dickens In April Dickens was indicted for and Amaral burned the wallet and its re- premeditated first-degree two counts of cash, maining They split the contents. murder, felony two of first-degree counts pocketed they Amaral the credit card and murder, conspiracy one count of to commit destroyed later the traveler’s checks. murder, first-degree count conspira- one approximately p.m., deputy At 9:40 cy robbery, to commit armed and two drove into the area sheriff rest and found trial, robbery. counts armed After a he lying ground the Bernsteins on the in front acquitted premeditated murder and Laura Bryan their vehicle. was dead. conspiracy to commit murder. semiconscious, around, thrashing he was convicted of felony murders moaning pain. Bryan told the deputy Bryan and armed robberies of and Laura that he gun, had been threatened with a conspiracy Bernstein and to commit armed attacked, thought he had been shot. robbery. The sentencing court found no Bryan shortly died thereafter. mitigating factors and thus sentenced September morning following On felony Dickens to death on the murder murders, unsuccessfully Amaral at- sentencing judge counts.6 The ordered tempted Bryan’s to use credit card at a that, reduced, if the sentences were ever local K-Mart. spent Dickens and Amaral they consecutively. then should be served night at a Motel 6 where Dickens had The court also sentenced Dickens to four- Early rented a room. the next morning, years’ imprisonment teen conspira- on the Carlsbad, California, Dickens drove to convictions, cy robbery and armed to be Amaral went back to his mother’s house. consecutively served to the death sen- Dickens and Amaral up again met tences. 1992, stayed March and Amaral with Dick- Dickens applied post-conviction ens for one or two in relief Diego, weeks a San from the trial apartment. California Amaral’s court but was denied. Dick- mother reported Amaral ens then runaway gave appealed his conviction and sen- police. Dickens’s address to the tence to po- Supreme the Arizona Court. denial, lice an investigation conducted into sex That court affirmed the trial court’s charges against abuse noting Dickens. San Die- is not a lingering “[t]his case of provided aggravating 5. This information was not to the ence or absence of factors merit- jury. ing imposition penalty. pro- of the death Ring cedural rule announced in "does not 6. The district court sentenced Dickens to apply retroactively already to cases final on prior Supreme death to the Court's decision Summerlin, direct review.” Schriro v. 542 Arizona, 584, Ring v. 536 U.S. 122 S.Ct. 348, 358, 2519, U.S. 124 S.Ct. 159 L.Ed.2d 2428, (2002), juries 153 L.Ed.2d 556 (2004). 442 (rather courts) pres- than must determine the

1309 that the Arizona Su evidence Dickens must show overwhelming and that doubt” (1) sen- capital conviction and either “con preme Court’s decision was supported 1, Dickens, 187 Ariz. 926 v. State tences. law as trary clearly to” established federal banc). (1996)(in 468, 493 P.2d (2) Court, “in Supreme determined of such application volved an unreasonable petition filed a subsequently Dickens (3) law,” or “was based on an unreasonable corpus under 28 U.S.C. of habeas writ for the District Court light § 2254 with of the facts in of the determination In the federal habeas Arizona. District of Harring the state court.” record before — changed his ineffec- proceeding, Richter, -, 131 S.Ct. ton v. U.S. (“IAC”) claim to of counsel tive assistance (2011) 770, 785, (quoting 178 L.Ed.2d 624 allegations factual include extensive 2254) (internal quotation 28 U.S.C. Syndrome Alcohol from Fetal he suffered omitted). marks (“FAS”) damage. The organic brain that Dickens’s new concluded district court Because the relevant state court and, barred with procedurally claim was petition for a is the determination habeas arguments, other denied regard to his decision, state court we re last reasoned the district appealed petition. Supreme decision view the Court’s to this court. court’s decision Delgadillo relief. See v. denying Dickens of our court affirmed panel A divided Cir.2008) (9th 919, Woodford, 527 F.3d En- of Dickens’s the district court’s denial Nunnemaker, 797, 501 U.S. (citing Ylst claim. all three mund/Tison 804-06, 2590, 115 L.Ed.2d 706 111 S.Ct. court’s con agreed that the district judges (1991)). are meas “State-court decisions procedurally that Dickens default clusion prece against Court’s] ured [the be vacated and his IAC claim should ed court ren dents as of ‘the time the district court to remanded to allow ” Pinholster, its decision.’ Cullen v. ders light reassess the claim — -, 1388, 1399, 179 U.S. 131 S.Ct. — v. Ryan, decision Martinez Court’s Lockyer v. (quoting L.Ed.2d 557 U.S.-, 182 L.Ed.2d 71-72, Andrade, (2012). parties petitioned Both for this (2003)). feder “[A] 155 L.Ed.2d banc, en and a to rehear the case may not issue the writ al habeas judges vot majority of non-recused active that court concludes its simply because ed to rehear the case. judgment the relevant independent OF REVIEW STANDARD clearly estab applied state-court decision erroneously law or incorrect lished federal novo the district review de We 75-76, ly.” Lockyer, 538 U.S. at denying petition. Estrada court’s order (internal citation quotation marks and (9th Scribner, 512 F.3d Cir. omitted). “Rather, must application 2008). Id. at objectively unreasonable.” Death The Antiterrorism and Effective added). (emphasis 1166 (“AEDPA”) applies to Penalty Act of 1996 of Dickens’s claims. this court’s review 320, 336, Murphy, 521 U.S.

See Lindh v. DISCUSSION (1997). 2059, 138 L.Ed.2d 481 Arizona Su- argues must The threshold a defendant overcome En- unreasonably applied preme Court high. AEDPA is relief under obtain upheld Dickens’s when it relief under AEDPA Specifically, to obtain mund%/Tison 1310 argues that prong

death sentence.7 Dickens also standard to determine whether a Supreme felony Court based its deci- murder defendant is eligible. death sion on an determination unreasonable of For a death sentence to be constitutional Finally, the facts. Dickens claims that his Eighth Amendment, under the the state sentencing, counsel was ineffective at be- major par- must show the defendant’s “[1] cause failed to adequately investi- ticipation in the felony committed, ^[2] com- gate present mitigating certain evi- bined with reckless indifference human dence. 158,107 life.” 481 U.S. at S.Ct. 1676. For below, the reasons stated the Arizona Su- reject arguments

We Dickens’s first two preme Court did not unreasonably con- affirm the district court’s denial of major clude that Dickens was a participant Dickens’s claim. Howev- Enmund/Tison robbery/murder the Bernsteins’ and act- er, we reverse the district court’s conclu- ed with reckless indifference to human life. sion that failed to show cause to procedural overcome his default and re- Major participation A. mand so that the district court can deter- Dickens claims that his participation mine whether Dickens can show cause and the crimes was insufficient to warrant prejudice under Martinez. sentence,

death like the defendant in En- Supreme I. The Arizona Court did mund. Enmund was the driver of the unreasonably apply En- getaway car in an robbery armed in which mund/Tison. accomplices elderly murdered an cou- ple robbery. who resisted the 458 U.S. at

The Arizona Supreme Court cor 784-86, 102 S.Ct. 3368. The Court deter- rectly identified Enmund and Tison as the mined that Enmund “did not clearly commit the established federal governing law homicide, Enmund, present was not when killing claim. the Su place, took participate and did not preme plot Court reversed death sentence Id. 795, or of a scheme to murder.” defendant convicted under 102 Florida’s felony-murder 798, S.Ct. rule. 3368. The Court noted that 458 U.S. at “the Tison, only S.Ct. 3368. In Supreme degree evidence Court [Enmund’s] participation affirmed the death jury’s likely [was] sentences of two defen infer- dants convicted under ence that he felony- person Arizona’s was the in the car 137, murder rule. 481 U.S. the side of the S.Ct. road near the scene of the 1676.8 In distinguishing crimes[,] between the two ... waiting help the robbers ” cases, the Tison Id. Court articulated a escape.... two 102 S.Ct. 3368 7. "A 'contrary decision can be to’ federal law unreasonably applies Court’s] decisions but ways: in one 'applies of two if it a rule that principle prisoner's to the facts of the governing contradicts law set forth in Cunningham Wong, case.” 704 F.3d cases,’ [Supreme Court] or if it 'confronts (9th Cir.2013) (internal quotation marks set of facts that materially indistinguish- are Here, omitted). the Arizona able from a decision of [the Court] recognized Enmund and Tison as the relevant and nevertheless arrives at a result different precedent, only applica- so the "unreasonable ” Horell, precedent.' from [that] Brown v. 2254(d)(1) prong tion” is at issue. (9th Cir.2011) (quoting F.3d 362, 405-06, Taylor, Williams proceed- The Court remanded for further (2000)). 146 L.Ed.2d 389 In con- ings to determine whether the defendants act- trast, "a applica- decision is an 'unreasonable disregard ed with reckless for human life. clearly tion’ of established law” federal Tison, 481 U.S. at 107 S.Ct. 1676. cases where the state court identified “the legal principle correct Supreme from [the omitted). (internal nearly There in crimes to marks ed the the same extent quotation Tison, provided the Tison As in no evidence Enmund as defendants. in weapons, participated leading the shooters’ Dickens the events murder knew of the death, underly- planned up “suggested the to the because he propensities, ‍​‌‌‌​​​‌‌​‌‌‌​‌​​​‌‌‌‌​‌‌‌​​​​​​​‌‌‌​‌​‌‌‌‌‌‌​​​‍violent crime, perpe- robbery,” the they plan or continued to assist robberies ing “[t]he they planned, agreed their victims. premeditated, after murdered were and trators Amaral,” only was that on and participation Enmund’s and [Dickens] “[Dick- Dickens, Id. at n. Amaral to getaway driver. drove the scene.” ens] present 3368. 926 P.2d at 490. Dickens was the murder site and not interfere at did Tison, the defendants By contrast since with the murders Dickens “wait[ed] father and his cellmate—both helped their approximately and three watch[ed] escape prison, from convicted murderers — hours” for the victims to arrive and then helped flag shotguns, armed them with Amaral waited while committed “[Dickens] kidnap family an isolated down Id. at the robberies.” 490. Dickens site, road, family the to a remote drove no made effort assist the victims but by as and his then stood their father “picked up rather Amaral” after the crime family the mem- cellmate murdered four “then drove to the home of brother.” [his] 139-41, at 107 S.Ct. 1676. bers. 481 U.S. joint Id. at 475. Dickens continued the concluded that the Tison brоth- The Court venture when he “witnessed the destruc- crimes dis- major participation the ers’ evidence, report tion of and failed to the them from Enmund. Id. at tinguished at finally, crimes.” Id. Dickens And 151-52, noted 107 S.Ct. 1676. The Court anticipated could have that Amaral would (1) “actively the Tison defendants: use lethal force since furnished “[Dickens] leading in the events participated weapon with the used in the mur- Amaral alia, by, providing inter the murder death Amaral weapon ders or knew had the with victims”; helping weapons abduct short, Dick- him for the robberies.” Id. (2) site, “present [and] the murder were actively every aspect ens was involved murders”; nothing to interfere did with deadly they un- suggesting (3) no effort to assist the victims “ma[de] crime — (4) robbery, planning robbery, dertake before, during, shooting”; or after the scene, selecting crime staking out the murders ... on the “after the continued victims, arming handgun,9 Amaral venture”; with anticipate joint “could murders, watching aiding Amaral’s es- force” commis- during the use of lethal evidence, 145, 151, destroying helping cape, their crimes. sion of Id. (internal quotation capture. Amaral evade Dickens was clear- marks omit- ted). ly major participant in the crime. Nonetheless, case, Dickens applica- court’s insists his conduct

In this Arizona to the En- objectively law more akin defendant tion of federal was not Indeed, than to the in Tison. participat- Dickens mund defendants unreasonable. gun moments Bernsteins’ Arizona Court’s decision is in the before the 9. The (arguably) vague robbery Dickens and murder. Dickens does not dis- to whether Court, gun it to pute Amaral. The that he owned and showed armed such, discussion, eligibility” prior noted to the As in its "Death Amaral crimes. it, showing weapon gun owning only that Dickens either furnished “furnished” Dickens, Amaral, weapon. giving and either it to him or knew Amaral had the or allowing knowingly it for the at 490. it is irrelevant him to use 926 P.2d actually handed Amaral the whether crimes. disagree for the reasons stated court never stated that one factor was While we above, Dickens’s importantly, argu- more important more than another factor. we owe the ment overlooks deference Rather, it simply concluded that the defen- decision under Supreme Court’s collectively dants’ actions demonstrate a least, very AEDPA. At the reasonable “high participation level of ... impli- [that] differ Dickens’s minds could as whether deaths.” Id. in resulting cates them the participation is closer to the defen- level Here, Supreme the Arizona con- Court dant in Enmund than the defendants in sidered mur- “presence” Dickens’s at the Richter, S.Ct. at 786. Ti- Tison. See along der scene with the other relevant son does not precise illuminate the line Dickens, factors. See 926 P.2d at 490. Its conduct becomes “ma- where defendant’s to give presence any failure factor Thus, jor participation.” assuming even particular weight any relative to other fac- “grey that Dickens’s conduct falls into a Tison, tor demonstrating Enmund “high level of areа” we between Supreme participation” must defer to the Arizona in the crimes did not violate Wright Court’s conclusion. v. Van Thus, clearly established federal law. we Patten, 120, 126, 552 U.S. say cannot Supreme the Arizona curiam) (“Be- (per 169 L.Ed.2d 583 objectively Court’s decision was unreason- [Supreme precedent] give[s] cause Court able, regardless of whether Tison is distin- question presented no clear answer to the guishable from Dickens’s case on the ... it cannot be said that the state court “presence” factor. unreasonably clearly applied established Furthermore, even if “presence” were (internal quotation Federal law.” marks dispositive “major factor in partici- omitted)). and alterations pant” analysis, Dickens would face an addi- arguments particu- One of Dickens’s in tional AEDPA hurdle. The lar effect illustrates AEDPA’s on his claim. Court has never “presence” defined as it that Enmund and Tison argues pertains major participation capital in a require a physical defendant’s immediate result, crime. As a the Arizona Supreme presence at the qualify murder scene to only Court had contrasting the two exam- for the penalty. death Dickens bases this Enmund and Tison ples presence argument arguable on an distinction be- Enmund, guide reasoning. its where tween this case and Tison: the Tison the defendant sat a car outside the apparently proxim- brothers were in closer home where two victims were shot ity to than Dickens. See killings death and neither heard nor observed the 141, 144-45, 107 S.Ct. 1676. How- murders, the Court concluded that the de- ever, Enmund or Tison does nowhere fendant present killing “was not when the clearly establish place.” took 458 U.S. at “presence” at a murder scene is a manda- Tison, where the de- tory prerequisite for penalty. the death Instead, people fendants stood as four physical presence were merely one of down, gunned several “major par- factors relevant to the Court determined the of the Tison ticipation” prong analysis. “present” defendants were at the murder Id. 107 S.Ct. 1676. The Tison site. 481 U.S. at 107 S.Ct. 1676.10 Otherwise, apparently dispute killing. 10. There was some as to did of the actual [Ari- in, noted, Ricky participation Tison defendants’ involvement zona] court Tison’s to, proximity “Ricky substantially Raymond’s." murders: claimed to the same as Raymond have a somewhat better view than 481 U.S. at 107 S.Ct. 1676. The defen- precedent verify “everything taken Court was care of’ any Supreme The lack of us to the defining requires give Thus, “presence” pick up Amaral. the Arizona in “leeway” some Supreme Court Supreme unreasonably Court not did con- Richter, See making its determination. major clude that a participant Dickens was 131 S.Ct. at 786. robbery in the Bernsteins’ murder.11

Here, sug- Court the Arizona at presence the mur- gested that Dickens’s B. indifference to Reckless human his ac- with other der scene—combined life following to and the leading up tions of the Tison prong analysis The second major partici- him as a qualified crimes— Dickens, requires felony-murder at the pant. 926 P.2d 490. The defendant to that this not an record demonstrates was exhibit to human “reckless indifference Dickens conclusion. testified unreasonable satisfy life” sufficient Enmund’s culpa to watched, as at trial that he the Tison bility requirement capital punishment. did, part each the brothers of presumably Tison 158, 107 at S.Ct. 1676. they murders as unfolded. Bernsteins’ Court observed that pull Dickens saw the Bernsteins into the some nonintentional murderers may be the stop. selecting rest After Bernsteins among dangerous most and inhu- victims, nodded as the Dickens his head person mane of all—the who tortures high- Amaral walk across the watched caring another not whether victim way handgun, with a loaded .38-caliber dies, lives or who or the robber shoots knowing going Amaral to was rob robbery, someone the course of the He gunpoint. Bernsteins at was close utterly to the fact that indifferent enough moving Amaral to see the Bern- may desire rob have the unintended of their in the steins around the front car consequence the victim killing as well headlamps illuminated path taking property. as the victim’s This see Amaral shot the victims in flashes as reckless to the value of hu- indifference Then, merely acting the head. rather than every man life as driver, may shocking bit the getaway Dickens drove to, words, through stop the moral sense as an “intent kill.” the rest actually away across may dants have walked from was still alive—Dickens “drove the me- lanes, jug picked a water the murder scene to fetch for the dian to the where he westbound Dickens, [they] hearing victims up “when started at 475. Amaral.” 926 P.2d Un- 141, However, Enmund, "waiting shots.” Id. at 107 S.Ct. 1676. help like who sat Gary Enmund, because "watched Tison both defendants escape,” U.S. robbers 458 at Greenawalt fire in direction of Dickens drove toward the victims,” they “present” at scene, victims, were the murder not to but "to aid those aid the 144-45, 157, S.Ct. scene. Id. at 107 placed position to whom he had in the kill.” added). (emphasis 1676 Tison, at 107 S.Ct. 1676. It is exactly how unclear the record close from- argument, 11. At oral the en banc Dickens was, certainly much but it was less that, argued because Enmund found not yards. than present of the murders when he at the scene event, any has never away, ap- yards was 200 and Dickens was murders, between the defendant defined set distance yards proximately from the presence. and the to constitute De- present murders have been at could not present termining whether a defendant argument sup- scene. solely many yards the based on how defen- ported by We know the record. that Dickens important ignores got dant was the crime While the crime was still from much closer: ongoing contextual while at least one of victims factors. —and Dickens, 1676. The explosive temper.” Id. at Tison P.2d court further held that “the reckless disre- 490. He knew that Amaral had battered human gard implicit knowingly life long history nurse Oak Grove and had a engaging in criminal activities known to carrying guns. He knew thаt Amaral carry grave represents risk of death handling guns was reckless since highly culpable mental state” sufficient to attempted Amaral twice to intimidate capital punishment warrant “when that Dickens—once at the river and once imme- natural, though conduct causes its also not diately robbery by pointing before the — inevitable, 157-58, lethal result.” Id. at the loaded .38-caliber revolver at Dick- added). (emphasis S.Ct. 1676 ens’s head. He knew that Amaral had bragged being about involved other Tison, Applying Supreme Arizona murders. Yet knowledge, even with this Court concluded Dickens acted with a proceeded Dickens robbery. with the He life, reckless indifference to human be- either furnished Amaral cause, with his .38-cali- in addition to the factors demon- ber revolver gun, or knew Amaral had the strating major contribution to the and stood while Amaral crimes, left with the Dickens armed Amaral with the gun to rob the opposite Bernsteins on the revolver, knowing .38-caliber that “Amaral side of highway. Like the defendants had a violent and explosive temper,” and Tison, who armed two mur- convicted “failed to render aid” to the Bernsteins. derers and Dickens, helped plan and orchestrate the 926 P.2d at 490. Given these robbery, armed Dickens facts, “could have fore- the Arizona Supreme Court conclud- seen that lethal might force be used” in ed that Dickens exhibited a reckless indif- the course of robbery. at U.S. ference to human life. 151-52, 1676; accord Foster v. argues Dickens that this conclusion was Quarterman, (5th 466 F.3d 370-71 unreasonable, robbery because armed Cir.2006) (denying habeas relief to a death carry not crime “known to grave risk petitioner row displayed because he reck- of death.” Dickens cites no U.S. less indifference to human by driving life Supreme precedent, and we know of two armed co-conspirators from victim to none, clearly establishing principle. this victim to robbery, commit armed a crimi- Moreover, if garden variety even nal activity carry “known to grave risk of robbery armed carry were not known to death”). grave death, risk of question here is whether the circumstances of Dickens’s Furthermore, after watching the shoot- crime a grave carried risk of death and ings, Dickens, Tison, like the defendants “natural, caused their though also not inev [Amaral,] chose to “aid whom he had itable, Tison, lethal result.” 481 U.S. at placed in position kill rather than 158, 107S.Ct. 1676. Tison, [aid] their victims.” support (“These Supreme 1676; facts Arizona see id. facts Court’s determination that only Dickens knew not indicate that the Tison brothers’ grave there was a risk of in sending death participation in the crime anything an explosive minor; history adolescent with a they clearly but also support would robbery. violence to commit armed finding From a they subjectively both ap- experience working at the preciated Oak Grove likely their acts were (a life.”). Institute treatment center for taking violent result of innocent juveniles), Diсkens knew that Amaral was Dickens helped Amaral flee the scene of a high patient risk murder, evidence, with a “violent and destroy and evade claim, facts, support alleges of these we cannot To capture. light statements, Amaral made inconsistent de- say Arizona Court’s that the prisoners gave Amaral’s fellow contradic- a reck- termination that exhibited tory testimony, jury rejected and the less to human life rested indifference testimony alleged Amaral’s about an walk- objectively application unreasonable ie-talkie conversation between Dickens and and Tison. Enmund at the murder

Amaral scene.12 Aside from casting credibility doubt on II. de- Amaral’s Court’s —a jury factor which the state court and an unrea- no cision was based on general doubt considered trial13 —these fact. sonable determination of do little allegations attempt more than against habe- granting To the bar avoid jury’s relitigate findings factual 2254(d)(2), §by a defen- imposed relief (over testimony credit Dickens’s that of conclu- dant must show state court’s Amaral) that he had no in the part crimes. sion “to be ‘an unreasonable determination jury Because we must “defer to the and pre- light of the evidence the facts judge regarding Amaral’s credi- [trial] ” proceeding.’ in the State court sented bility” unless there persuasive evidence Dretke, 231, 240, 125 Miller-El v. any particular that determination of fact (2005) (quot- 162 L.Ed.2d 196 S.Ct. unreasonable, prevail cannot was Dickens 2254(d)(2)). ing § A trial court’s 28 U.S.C. 2254(d)(2) raising general § by under presumed are sound unless findings credibility. to Dick- challenge Amaral’s of cor- “presumption defendant rebuts 490; ens, 926 P.2d see United States v. convincing rectness clear evidence.” (9th Johnson, Cir.2000) 229 F.3d 2254(e)(1). 28 U.S.C. (“[W]e jury’s powerless question are to argues that entitled to Dickens he is credibility....” assessment witnesses’ En- relief the Arizona court’s because (internal omitted)). quotation marks un- analysis was based on an mund/Tison reject We also Dickens’s claims facts. determination of the reasonable insufficiency from the arising alleged that the specifically, argues More Dickens sup trial. Ample evidence at evidence unreasonably that: state court determined ported the conclusion that Dickens knew (1) sufficiently Amaral was a credible wit- Amaral to rob the Bern- that intended (2) ness; intended Dickens knew Amaral steins. Dickens himself testified he (3) Bernsteins; to or kill the Dickens rob robbery. significant about the Most knew propensities; knew of Amaral’s violent “figured he admitted that he ly, [Amaral] knew one of the Bernsteins Dickens go to ... over there and rob going might the rest still be alive when he left Amaral told him people,” those he area. More going to rob the Bernsteins. arising over, their reject length claim Amaral testified at about We robbery. alleged credibility. scheme commit armed from Amaral’s lack of common testimony example, jury convict regarding 12. the walkie- 13. For did not Dick- Amaral’s (in alleged- premeditated conspiraсy talkie which Dickens conversation murder or ens of ly any wit- murder, Amaral not leave instructed likely indicating it did not commit nesses) the trial is irrelevant because neither testimony Dickens Amaral’s or- believe the Arizona Court relied court nor him to kill Bernsteins over two- dered testimony in their on this discussion way radio. supporting the find- evidence Enmund/Tison Dickens, ings. at 490-91. P.2d explained why the [they] placed position Dickens has not Arizona whom had in the particular courts’ reliance on this testimo- kill rather than their victims.” 481 U.S. at ny from Amaral was unreasonable. Nothing suggests evidence, light of this the Arizona Tison knew anyone defendants had sur- Rather, Court’s determination Dickens knew vived. the relevant factors were agreed robbery about and to the was not knowledge the defendants’ that victims unreasonable. had been shot and their decision to aid the shooters over victims.

Similarly, supports the record Dickens, defendants, Tison Arizona courts’ determination that like the Dickens propensities. Bernsteins, knew about Amaral’s violent watched Amaral shoot the but originally met Amaral at the Oak decided aid Amaral over the Bernsteins juveniles. Grove Institute violent him picking up driving him to his learned, working while at Oak brother’s home. There is no evidence Grove, “high that Amaral was a pa risk” Bernsteins, Dickens attempted to aid the tient, nurse, frequently had battered a assistance, summon medical or otherwise bragged carrying about guns and commit notify Instead, the authorities. helped he crimes, ting including violent murder. He Amaral. Because Dickens’s uncontested further testified that he had personally knowledge of shooting, the Bernsteins’ carrying guns seen Amaral on several oc Bryan’s survival, rather than is the critical September casions before the 1991 mur in factor reckless indif- Enmund/Tison Lastly, ders. Amaral pointed a .38-caliber analysis, ference Supreme the Arizona revolver at Dickens’s head on separate two Court did not “base” its decision on an to occasions intimidate him. One occasion unreasonable determination of the facts. just prior robbery. to the In light of 2254(d)(2).14 See 28 U.S.C. § admissions, Dickens’s own say we cannot Supreme Court’s determina III. Dickens defaulted on his IAC

tion that Dickens knew of Amaral’s violent by failing fairly present claim nature was unreasonable. courts, the claim to the Arizona may but he be able to show Finally, the support facts the Ari Ryan. “cause” under Martinez v. zona courts’ determination that Dickens “failed to render aid knowing that one lastly petitions Dickens this court for victim might not be dead” and thus exhib habeas relief on the basis of his counsel’s ited reckless indifference to human life. ineffective assistance during sentencing. Dickens, 926 P.2d at 490. argues was Dickens his counsel failed con- necessary not to the Arizona court’s reck thorough duct a investigation of Dickens’s less finding indifference that Dickens background knew prepare the defense ex- that might “one victim not be pert dead.” In with necessary to present tools Tison, the U.S. compelling Court concluded mitigation evidence. Dickens that the defendants exhibited in reckless claims that trial counsel should have ob- difference, part, in they because “watched tained and introduced mitigating additional the killing” evidence, and then “chose to aid those including evidence that Dickens supports Evidence in the record stop shortly also arrived at the rest after the shoot- example, factual ing, Bryan determination. For Amaral Bernstein was still alive and minimum, testified through that Dickens drove "thrashing” pain. rest around in At a stop verify “everything provide had been taken Dickens failed to aid when one victim that, was, fact, care they of.” Officers testified when in still alive.

1317 argu- damage Considering the same organic brain counsel.” suffered from court, to the ments raised trial Ari- FAS. summarily denied zona may grant “A court federal appeal. Dickens’s Strickland claim on unless he prisoner to a state habeas relief remedies has exhausted his properly court, changed In federal Lampert, 319 state Peterson court.” allega- include factual claim to extensive banc) (9th Cir.2003) (en 1153, F.3d 1155 suggesting Dickens suffered from tions 2254(b)); (citing see also Cole 28 U.S.C. organic damage. brain FAS 731, 722, 111 Thompson, man v. 501 U.S. sentencing counsel’s failure to argued (1991). To L.Ed.2d S.Ct. 640 present mitigat- specific uncover and these that he exhausted his federal demonstrate ing constitutionally conditions amounted to court, Dick claim state corpus habeas performance. argued The state deficient “must presented ens’s state court claim procedurally any defaulted that Dickens specific con include reference to federal allegations claim based these new a state guarantee, stitutional well as failing present allegations evi- facts that [him] ment of the entitle to the state court. dence Gray v. relief.” Netherlands court agreed The district with state’s 162-63, 135 L.Ed.2d procedural default The district argument. (1996). pro An unexhausted claim will be “[fjactual allegations court noted defaulted, if procedural cedurally presented may were not to the state rules now bar the from petitioner would allega- a claim unexhausted if the render the claim state court. See bringing ” ‘fundamentally pre- claim tions alter’ (9th Stewart, Beaty v. 303 F.3d Vasquez the state sented to court. See Cir.2002). 254, 260, Hillery, Here, claim we conclude (1986). The district court 88 L.Ed.2d defaulted, procedurally he never because also observed evidence funda- “[n]ew would presented it to the state courts and places if it mentally alters claim However, now from doing be barred so. significantly in a different and claim appropriate to allow the district remand is evidentiary it had in stronger posture than can court to evaluate whether Dickens Spalding, Aiken 841 F.2d state court.” prejudice show cause and under Martinez. (9th Cir.1988). 881, 883, n. district court concluded that new Background A. proffered evidеnce funda- allegations trial argued to the Arizona Dickens exhausted mentally previously altered sentencing provid- court that his claim, unex- rendering “partially it IAC Dickens ed ineffective assistance. procedurally defaulted.” hausted and claimed, among things, other that sen- rejected Dick- did not the work of The district court also tencing counsel direct assistance argument and did ineffective court-appointed psychologist ens’s (“PCR”) coun- post-conviction Dickens’s of his relief adequately investigate overcome the background. rejected The trial constituted “cause” to sel merits, court rea- procedural claim sentenc- default. The district finding on the Dickens constitutional consti- had no ing performance counsel’s was not soned counsel, making it Dickens to effective tutionally right deficient PCR to show cause under Coleman preju- “failed that he was insufficient to demonstrate 2546, 722, 111 S.Ct. Thompson, 501 U.S. by any performance diced of defense (1991). Thus,' Although 115 L.Ed.2d 640 procedurally district B. Dickens claim, defaulted court declined to -reach his “new” IAC the merits of Dick- may be able to show ens’s “new” claim and IAC denied Dick- prejudice cause and under Mar- request evidentiary ens’s for an hearing. tinez. challenged the district court’s presentation 1. Fair in state court concerning conclusion exhaustion and matter, As an initial agree we with judge panel cause before the three of this the district court that Dickens failed to position court. The state maintained its exhaust his “new” IAC claim. To exhaust that Dickens failed to exhaust the “new” claim, a constitutional the claim must be claim, rendering procedurally IAC de- “fairly presented]” in state court to pro faulted. after this case was sub- vide the state courts an opportunity to act mitted, Court decided Mar- on them. Henry, Duncan v. Martinez, tinez. In the Court modified 365, 130 L.Ed.2d 865 unqualified “the statement in Coleman curiam). (per A claim has fairly not been attorney’s that an ignorance or inadver- presented in state court if new factual postconviction tence in a proceeding does allegations “fundamentally either alter the not qualify as cause to a procedural excuse legal already claim considered the state — -, default.” courts,” 260, 106 Vasquez, 474 atU.S. (2012). 617; 182 L.Ed.2d 272 Martinez Beaty, 989-90, 303 F.3d at “place or created a exception narrow the case in a significantly Coleman different and stronger evidentiary whereby posture than it “[inadequate assistance of coun- when the state courts considered it.” Ai sel at proceedings initial-review collateral ken, 883; 841 F.2d at accord Nevius v. may establish a prisoner’s proce- cause for Sumner, (9th Cir.1988). 852 F.2d dural default of a claim of ineffective assis- tance at trial.”15 Aiken, Id. petitioner present- habeas ed new consisting evidence aof decibel panel parties ordered the to address performed sound test expert which the effect of Martinez on Dickens’s “new” strengthened his claim that the interrogat- panel rejected IAC claim. The the state’s ing officers heard him request counsel. arguments various that Martinez does not 841 F.2d at 883. The court held that his apply to panel Dickens’s claim. The unan- right unexhausted, counsel claim was imously decided to remand the case to the because the new decibel evidence “sub- district court to consider whether Dickens stantially improve[d] the evidentiary basis could show cause to proce- overcome his right-to-counsel for [his] and voluntariness dural default. For the reasons stated be- arguments, thereby presenting very low, we too conclude that remand appro- type of evidence which the state should priate under Martinez. in consider the first instance.”16 ‍​‌‌‌​​​‌‌​‌‌‌​‌​​​‌‌‌‌​‌‌‌​​​​​​​‌‌‌​‌​‌‌‌‌‌‌​​​‍Id. defines an initial-review collater- Martinez failure to exhaust because new evidence "re- 15. proceedings al proceedings as “collateral garding [petitioner]^ childhood and the ef- provide which the first occasion to raise a fects of his substance ... abuse constitute claim of ineffective assistance at trial.” Mar- evidentiary support 'material additional [pre- tinez, 132 S.Ct. at 1315. pre- sented] to federal court that was not ” (citation omitted)); sented to the state court’ holdings Our in Aiken and Nevius are con- 16. Price, (10th Demarest v. 130 F.3d 938-39 See, sistent with case law in other circuits. Cir.1997) (finding failure to exhaust because Quarterman, e.g., Smith v. 515 F.3d "new evidence submitted to the district court (5th Cir.2008) (dismissing petition habeas Nevius, procedurally held hanced Strickland claim is Similarly, in Court barred. failed to exhaust petitioner habeas that a court where he claim in state

his Batson Prejudice 2. Cause new to introduce and substan- attempted under Martinez supporting appeal. tial evidence argument and in at 469-70. At oral F.2d exception Martinez announced an briefs, allega- Nevius made appellate in longstanding to the Coleman rule that concerning the prosecutor comments tions effective assistance of PCR counsel cannot made to defense counsel. allegedly procedural cause to overcome de establish comments, might present- “if proven, have fault. 132 S.Ct. at 1315. The issues light ed in a different factual held: concerning prosecu- the motivation of the Where, law, under state claims of inef- peremptory chal- exercising tor fective assistance of trial counsel must Id. because

lenges.” raised an initial-review collateral previously were not alleged remarks a default will not proceeding, procedural court, this found presented in a state court hearing court bar a federal habeas from and not that the claims were unexhausted a substantial claim of ineffective assis- court. addressable federal if, in the tance at trial initial review proceeding, collateral there was no coun- allegations the new conclude that We proceeding sel or in that counsel presented to the fed- and evidence Dickens ineffective. fundamentally altered eral district such, at 1320. As to establish “cause” Id. claim. previously exhausted IAC procedural overcome default under Indeed, mitiga- the new creates a evidence (1) Martinez, petitioner must show: little tion case that bears resemblance trial underlying ineffective assistance of naked Strickland claim raised before (2) “substantial”; peti claim is counsel There, not courts. Dickens did the state not or had ineffec represented tioner was identify any specific conditions that sen- during proceeding; counsel the PCR tive tencing allegedly per- deficient counsel’s (3) ini proceeding the state PCR only gen- formance failed to uncover. He (4) law proceeding; tial review sentencing did erally alleged that matter) (or required practical forced as effectively whether Dickens not evaluate bring the in the petitioner claim any from medical or mental “suffer[ed] proceeding. review collateral Trevi initial specif- new evidence of impairment.” This — Thaler, U.S.-, no v. (like organic ic brain conditions FAS (2013). 1918, 185L.Ed.2d 1044 clearly damage) places Dickens’s Strick- “significantly different” Here, land claim dispute is no with re there evidentiary “substantially improved” (4), Ari to elements because spect Nevius, 470; posture. 852 F.2d at permit petitioner bring zona does Aiken, such, Martinez, As appeal. 841 F.2d at 883. an IAC claim on direct opportu- courts did not have fair 1320. Arizona law re bring petitioner Dickens’s altered IAC such a claim nity quires evaluate Therefore, proceeding. district cor- Id. claim. a collateral review court, as it stood newly applying en- law rectly determined that Dickens’s district ” more petitioner] 'significantly substantial' by his ineffective different [the transformed omitted)). (citation claim into one that was assistance time, correctly at that held that Dickens fered for the first time to the district procedural Pinholster, could not establish cause for his court. Supreme Court alleged default based on the ineffective- made clear that a federal habeas court However, ness of his may PCR counsel. Mar- not consider evidence of a claim that may provide path tinez presented Dickens to was not to the state court. 131 cause, demonstrate .if he can show However, the first S.Ct. at prohibition this (1) two Martinez elements: the claim is applies only to claims previously “adjudi- substantial and that his PCR counsel cated on the merits State court proceed- Thus, 1401; under Strickland. ings.” ineffective Id. at see also 28 U.S.C. 2254(d). ruling § we vacate the district court’s re- garding whether cause existed to overcome Pinholster does not bar Dickens from procedural newly- default of Dickens’s presenting evidence of his “new” IAC enhanced claim of ineffective assistance of claim, because the claim “adjudi was not sentencing counsel. We remand for the cated on the merits” the Arizona courts. district court to consider the issue anew in While the Arizona courts did previously light of Strategic Martinez. See Diversi- adjudicate claim, a similar IAC the new ty, Inc. v. Corp., Alchemix 666 F.3d allegations and evidence “fundamentally (9th Cir.2012) (“Because the district claim, altered” that as discussed above. court did not have the benefit of recent See, Aiken, e.g., 841 F.2d at 883. Pinhol authority, we vacate the says ster nothing about whether a court remand.”). ruling grounds on these may claim, consider a “new” based oh presents

The state arguments various “new” previously evidence not presented convince us Dickens is not entitled to to the state courts. See 131 remand under Martinez Indeed, and that our con n. 10. the Pinholster court ex clusion would contravene Cullen pressly v. Pinhol declined to “decide where to draw — ster, , U.S. 179 the line between new claims and claims - — (2011), L.Ed.2d 557 adjudicated which the Thus, the merits.” Id. Pin- during Court decided pendency of this holster does not affect earlier cases like appeal. We Aiken, decline to address many Nevius, of Vasquez, or a federal arguments these based on our remand re ability habeas court’s to consider new evi garding applicability and impact of dence petitioner where the successfully Martinez. provide guidance we shows cause to procedural overcome the to the district court on the following default. (a)

points: potential Pinholster’s effect on (b) claim; b. Dickens’s “new” Dickens’s “Other” IAC the effect IAC Claims of Dickens’s other IAC claims on the reject We the similar argument (c) claim; 2254(e)(2) “new” and whether claims, Dickens’s other IAC which were bars request for an evidentiary previously “adjudicated on the merits” hearing on remand. Courts, the Arizona foreclose the new IAC claim. Martinez petitioner allows a to ar-

a. Pinholster gue “cause” based on PCR counsel’s inef- reject any argument We that Pinholster fectiveness for counsel’s failure to raise a bars the federal district ability court’s substantial trial counsel IAC claim. 132 consider Dickens’s “new” claim. IAC The S.Ct. at 1318-19. Martinez contains no argues that the district court language cannot limiting “equitable excep- consider new allegations prof- or evidence simply tion” petitioner because a brought

1321 (so bring as to prejudice that were exhausted. case within IAC claims other judicially proce- exception courts evaluate Martinez’s created to Because See id. bar) basis, judicially claim-by-claim procedural created is default on a dural a peti- hearing allow a not same as a on constitu that Martinez would follows cause, of tional claim for relief. irrespective to habeas See Cole tioner show man, other, 111 separate claims. 501 U.S. S.Ct. 2546 presence

(recognizing prejudice” “cause and ex Request for an c. Dickens’s default); ception рrocedural Woodford Evidentiary Hearing 81, 91, 126 2378, 165 Ngo, v. 548 S.Ct. (2006) (“[H]abeas law L.Ed.2d includes 368 that, argument reject We also state’s judge-made procedural doctrine of de applies if the standard Martinez even fault”); 386, 394, Dretke v. Haley, 541 U.S. 2254(e)(2) cause, § Dickens to show S.Ct. L.Ed.2d 659 introducing from the new will bar Dickens (describing exceptions the “various to the to the district court. Petitioners evidence procedural “judge- default doctrine” seeking habeas relief cannot obtain evi rules”). Therefore, petitioner, made a dentiary hearing on their claims unless claiming that PCR counsel’s ineffective as 2254(e)(2). § comply with Section they “cause,” may present sistance constituted 2254(e)(2) severely petitioner’s restricts a point. evidence to demonstrate this ability to a on a claim for hearing obtain petitioner present is also entitled to evi petitioner where “failed to relief devel “preju dence that there is to demonstrate the factual basis of a claim State op dice,” petitioner’s that is that claim is “sub proceedings” due to “a lack of dili Therefore, stantial” under Martinez. a fault, greater or some attributable gence, may district court take evidence to the prisoner’s or the prisoner to the counsel.” necessary to extent determine whether Lopez Ryan, F.3d See petitioner’s claim of ineffective assistance Cir.2011). (9th petitioner’s A attorney’s of trial under Mar substantial generally peti to the “fault” is attributed tinez. 2254(e)(2)’s § purposes tioner dili requirement.

gence Tay See Williams procedural posture facts lor, 437-40, point. Dick- case illustrate this (2000). 146 L.Ed.2d 435 assis- ens had a new claim of ineffective 2254(e)(2), however, tance of the claim was

Section does counsel. Because (thus new, it hearing procedurally a defaulted not bar before the district court exhausted). However, if Dick- petitioner technically a “cause” to allow show under prejudice ex- petitioner a seeks to ens can show cause and Martinez. When default, AEDPA no procedural cuse “cause” based ineffective assis show counsel, may longer he and a federal court asserting applies of PCR is not tance hear claim de novo. Pirtle v. “claim” for relief as term is used in this new (9th Cir.2002). 2254(e)(2); indeed, Morgan, F.3d 1160 § such a claim of inef may provide a means to show assistance of PCR counsel is not a Martinez fective Martinez, default and reach claim. See “cause” to overcome the constitutional Instead, claim. Because petitioner the merits of new 1319-20. 2254(e)(2) seeks, basis, prevent its terms does equitable on an to excuse evidence A federal consideration substantive procedural default. id. necessary of the claim to extent court’s determination habeas whether successfully has if Dickens has demonstrated cause and determine petitioner 1322 “cause,”

proven just Dickens will have a fair more than reasonаble —it was opportunity prejudice to show cause and so entirely correct. bar procedural as to overcome the of the Enmund, In Supreme Court over Martinez, claim. otherwise defaulted See a getaway turned death driver’s sentence 2254(e)(2) Thus, § 132 at 1317.17 S.Ct. because there was evidence that no he a prejudice hearing does not bar cause and killed, attempted to kill or intended the claim on Dickens’s counsel’s inef- PCR Enmund, death the victim. 458 U.S. at

fectiveness, requires showing a that which 796-98, 102 S.Ct. 3368. As best the record underlying Dickens’s trial-counsel IAC showed, Enmund was a schmo hired to claim is substantial. the getaway robbery drive car a gone wrong; there was no evidence that he CONCLUSION or planned participated otherwise in the reasons, foregoing judgment For the 786, Id. at crime. 102 S.Ct. 3368. Five court denying pe- district later, years Tison held that two brothers corpus tition for writ habeas major who in played jail roles a violent part, in AFFIRMED in VACATED and kidnaping break be could sentenced to part, and REMANDED. death, even though the brothers didn’t in parties shall bear own their costs. expect anyone tend or would be killed. Tison, 158, 481 U.S. at 107 S.Ct. 1676. KOZINSKI, Chief Judge with whom held major that a in participant Judges BYBEE join, and CALLAHAN deadly may crime be sentenced to death concurring part: if acted he with reckless indifference to I agree majority with that the Ari- life. human Id. Supreme zona unreasonably Court didn’t lay Enmund and Tison apply simple relevant out rule: Eighth Amendment felony-murderer A precedent Florida, may death-eligible be if 458 U.S. —Enmund 3368, kills intentionally 102 he or with S.Ct. 73 L.Ed.2d 1140 acts reckless (1982), Arizona, and Tison v. indifference. If sentenced under a reck- 481 theory, S.Ct. lessness L.Ed.2d 127 he must also have been a —in affirming major participant Dickens’s death felony sentence. See result- Maj. I Op. separately Parts & II. I ed in write the victim’s Id. death. The Arizona because I believe the Court found that Dickens didn’t Court’s application of and Tison Enmund intend to kill but that was both he reck- argues 17. The state does not Martinez state court in order to demonstrate cause apply, because the Martinez, of ineffective as assertion in federal court. the first time sistance of PCR counsel must as cause itself petitioner argued ineffective assistance of or procedurally exhausted it is barred. It peti PCR counsel was in his federal habeas is true "the gen ... exhaustion doctrine Martinez, 1314; tion. Mar erally requires that a claim of ineffective as Schriro, (9th 623 F.3d tinez Cir. presented sistance be to the state courts as an 2010), Martinez, rev’d S.Ct. 1309. The independent may claim before it be used to Supreme Court did not find claim barred procedural establish cause for default.” being presented for not state courts. Carrier, 478, 488-89, Murray v. Therefore, applies, where there Martinez (1986) (citation 91 L.Ed.2d 397 requirement to be seems no that the claim of omitted). light case law ineffective assistance of PCR counsel as cause now indicates that is no re there Martinez ineffective-assistance-of-sentencing- quirement petitioner аssert an ineffec presented counsel claim be to the state courts. tive of PCR assistance as cause claim culpable and distinguishing the most dan human life and ma- lessly to indifferent murderers.”). felony. To conclude that underlying gerous of participant in the jor Dickens, 468, 1, to 926 P.2d Dickens can’t be sentenced death be v. 187 Ariz. State (1996). cause his conduct it, “closely Arizona Su- more I see the resembles 490 As letter in Tison to the the actions of Earl Enmund” than the preme Court followed brothers, 1339, sentence. at affirming Dickens’s death Tison Christen Dissent of Tison: The State made point the misses my colleagues esteemed find Yet five showing no that Enmund was reckless be just wrong but unrea- this to be result (mistakenly) thought could cause it he be For See Christen Dissent. sonable. liability to on a felo sentenced death strict them, exception is a “narrow Tison but Enmund, ny-murder theory. 458 U.S. at kill only who Enmund the rule” those 786, 102 S.Ct. 3368. to death. to kill can be sentenced or intend into Id. at 1340. Dickens doesn’t fit this easily evidence shows that Dickens believe, exception, my colleagues narrow culpability requirements: satisfies Tison’s his crime was more like that of because robbery, planned an armed convinced He Dickens, (who, like drove Earl Enmund teenager to carry an unstable and violent car) than Tison brothers. getaway out, transpire, picked it watched crime id. at 1345. Because 1338; Id. at see also shootings, after up his confederate fled Enmund set aside getaway driver’s evidence. State destroyed the scene and sentence, it my colleagues find un- death Dickens, see 474-75; also P.2d at result reasonable reach different Maj. just at 1305-08. More than tech- Op. (“The Arizona Su- Id. at 1340 our case. eligi- nically establishing Dickens’s death affirm the death decision to preme Court’s bility, harrowing proved facts at trial penalty Dickens’s case contravenes Tison’s rationale: Such squarely fit within in En- set out clearly established law “among the reckless murderers are most mund.”). all,” their dangerous inhumane of fact-specific reading But the dissenters’ “every bit to human life is indifference of Enmund and Tison is incorrect: To the moral as an ‘intent shocking sense ” extent Enmund suggested only inten- Tison, 157, at 107 S.Ct. to kill.’ 481 U.S. may be sentenced to tional murderers Arizona agree 1676. I therefore with the Tison overruled it. death, More specifical- sen- Supreme Court that Dickens’s death ly, Tison made getaway clear that drivers under Tison. appropriate tence was death; can be sentenced to they just can’t Nonetheless, thoughtful, consci- eleven sentenced to death if all is they do least) (at judges came to three entious As the Tison getaway serve as drivers. disparate conclusions on issue. Enmund it, prohibits “imposi- put Court (state at Dissent 1339-46 Christen murder penalty felony tion of the death unreasonable); Watford Concurrence 147, simpliciter,” at 481 U.S. (state reasonable); court was incorrect but showing this doesn’t mean but (state Maj. court wasn’t case; Op. 1310-16 every kill required intent to unrеasonable); Kozinski Concurrence Eighth may also be satisfied Amendment correct). (state fact that court was by showing to human reckless indifference (“A after Tison we still have such life. Id. narrow decades it disagreement about what means sharp not a question focus of whether or that Enmund is a hazard to navi- kill,’ suggests ... is a ‘intended to given defendant can’t be overruled. We gation and should unsatisfactory definitively means of highly this, but can grant do stead to relief our based on own “independent prece- should. evaluation” of those West,

dents, Wright WATFORD, Judge, concurring: Circuit L.Ed.2d (O’Connor, J., concurring judgment), in the join majority’s opinion, except I I would have held that the Eighth Amend- suggests extent ment bars Dickens’ execution. correctly Supreme applied Court Tison v. Arizona, 137, 1676, 481 U.S. 107 S.Ct. 95 CALLAHAN, Judge, joined by Circuit (1987), 127 and

L.Ed.2d Enmund v. Flori KOZINSKI, BYBEE, Judge, Chief da, 782, 3368, 102 458 U.S. 73 Judge, concurring Circuit (1982), dissenting: L.Ed.2d 1140 the facts of Dick majority I with agree ens’ case. the parts majori I concur in II I and Supreme application the Arizona Court’s ty opinion’s I discussion. re precedents those wasn’t “unreasonable” spectfully dissent from part III of its dis 2254(d)(1). 28 under U.S.C. As con majority cussion. The recognize fails to Supreme strued the United States are against there three strikes Dick 2254(d)(1) Court, § grant allows us to re ens and he should out of court. Strike only lief “where there no possibility one: eligible Dickens is not narrow jurists fairminded could disagree that the exception requirement the exhaustion state court’s decision conflicts with [the] Supreme recognized Court in precedents.” Court’s v. Harrington Richt — U.S.-, Ryan, v. Martinez 132 S.Ct. — er, U.S.-, 770, 786, 131 S.Ct. 178 1309, (2012), L.Ed.2d because he (2011). L.Ed.2d 624 I view that standard his claim raised of ineffective assistance of functionally equivalent to the standard (“IAC”) counsel in state court and the Lane, Teague developed under v. rejected claim its merits. Strike 1060, 109 S.Ct. 103 L.Ed.2d 334 two: allegations Dickens’s he suffers (if (1989); ever) it will seldom be satisfied from organic damage brain Fetal Alco petitioner unless shows that the Su (“FAS”) Syndrome hol do not amount to a preme Court’s cases “dictate result” new claim and fundamentally do not alter urged petitioner. Parks, Raffle claim IAC that he in advanced 494 U.S. 110 S.Ct. court which reasonably the state court (1990). L.Ed.2d 415 majority As the ex rejected. Strike three: were towe review plains, neither nor Tison Enmund dictates performance of sentencing counsel on in result Dickens’ case. His case falls merits, its we would have to conclude that gap precedents, between those two presented counsel adequately mitigating jurists expand and fairminded could either evidence and that if even there were some general Enmund’s rule or Tison’s excep failings, they not prejudicial. were We encompass tion to Dickens’ conduct. should affirm the district court’s denial of circumstances, In these habeas petition. has give

Court held that we must “defer- ence” to the in- Court’s I Enmund, terpretation of Tison and even if we believe the interpretation majority state court’s opinion appreciate fails to Lockyer Andrade, is erroneous. posture 538 that in procedural the differences 63, 75, 155 L.Ed.2d between this case and Martinez renders (2003). we permitted Had been in- exception inapplicable. Martinez proceeding. The Arizona Su- in Mar- collateral judicial proceedings a. The preme declined to review Mar- tinez. appeal. tinez’s pending, appeal his direct still While (citations omitted). S.Ct. at 1314 proceed- collateral began a state Martinez Martinez, at 1314. “De- ing. petition then filed a habeas Martinez ap- proceeding, [his spite initiating District of Ari- the District Court no made claim pointed habeas] petition, zona. That court “denied the rul- later filed trial counsel was ineffective and preclusion was an ing Arizona’s rule no asserting she could find a statement independent adequate state-law at all.” Id. The state trial colorable claims ground to bar federal review.” Id. at that he could gave Martinez notice affirmed, relying general “on 1315. We postcon- pro petition support file a se that, right statements Coleman absent re- relief. Id. Martinez did not viction in a an proceeding, to counsel collateral trial court “dismissed spond, and the state attorney’s proceeding errors in the do not relief, for in ef- postconviction the action procedural cause for a default.” establish affirming fect counsel’s determination granted The certiorari Supreme Id. Court Id. Martinez had no meritorious claims.” opinion its in and issued Martinez. Appeals affirmed

The Arizona of Court conviction, judicial proceedings b. The in Dick- the Arizona Su- Martinez’s and case. ens’s denied review. Id. preme Court Martinez, procedural for Dickens is later, posture The year and a “About half counsel, appeal, On direct the Arizona by a different. now new filed represented affirmed his conviction and relief in the Court postconviction second notice of Dickens, Ariz. State v. sentence. Arizona trial court.” Id. The (1996). August In 926 P.2d explained: postconviction Dickens filed an action for trial had Martinez claimed his counsel (“PCR”) trial In relief in the state court. failing challenge for been ineffective the trial court issued 33- October argued, the evidence. He prosecution’s denying relief. Most of the page order example, for trial counsel should his the of allegations order addressed nine objected expert testimony have the counsel, by appellate which IAC trial and explaining victim’s recantations or the included a claim that Dickens “was denied expert should have called an witness in the the effective assistance of counsel also faulted trial rebuttal. Martinez a miti- stage.” presented penalty exculpatory pursuing counsel for not that, in her who testified gation specialist explanation night- for the DNA on for preparation defense counsel’s opinion, gown. petition was dis- Martinez’s sеntencing was mitigation phase and missed, in on an Arizona part reliance The inadequate and unreliable. trial court relief on a claim that could barring Rule disagreed, writing: in previous raised collateral have been went, Martinez, theory reflects that defense counsel proceeding. record effectively testimony elicited the men- have asserted the claims inef- should experts, family ‍​‌‌‌​​​‌‌​‌‌‌​‌​​​‌‌‌‌​‌‌‌​​​​​​​‌‌‌​‌​‌‌‌‌‌‌​​​‍tal health members of trial counsel in fective assistance quali- support who were well postconviction relief. witnesses first notice pre- Appeals agreed. fied and credible. Defense The Arizona Court of mitigating factors he sented numerous It Martinez relief because denied hearing. perform- sentencing to raise his claims in first failed (1) tinez, anee of defense counsel is not to be Martinez’s claim of trial counsel judged by the outcome. Of course a IAC was not raised in his first PCR state (2) person, exercising can hindsight, urge petition; it was raised state second done, that more have petition should been how- PCR which the state court held ever, barred; under procedurally circumstances the second time, defense counsel’s assistance Pe- petition state PCR presented evidence of (a) titioner both in trial and during pen- IAC trial counsel. contrast: alty phase professional, reasonable Dickens’s claim of trial counsel IAC was certainly, Most effective. did not raised and its denied on merits (b) fall to the level ineffective assistance state court in petition; his first PCR set forth counsel as in Strickland. Dickens never raised the claim of PCR Further, Petitioner has failed to demon- alleged court; in a counsel’s IAC (c) strate that he was prejudiced by any Dickens’s assertion that trial counsel performance of defense counsel. should have investigated whether he suf- fered from organic FAS and damage brain claim, Concluding on this it is noted that defendantyPetitioner’s raised time in first it was federal con- petition habeas and has duct, pre- never been participation state of mind and sented to a state court. these crimes that led to jury verdicts imposed. the sentence It was not These disqualify differences any inadequacy upon the part either from the exception Martinez two on trial appellate counsel or counsel. First, grounds. Martinez, unlike whose petition filed a with the review trial counsel IAC claim was held Court, Arizona Supreme which the court procedurally courts, by defaulted the state summarily denied. Dickens did raise by his claims of IAC trial in counsel his petition, first state PCR

Dickens then filed a petition habeas in rejected the claim was on its merits. Sec- the District Court for On July Arizona. ond, Martinez, unlike Dickens has not the district court peti- the denied sought to raise his “new” claim trial tion in a 145-page Among decision. the in any IAC second or successive claims the court considered denied petition.1 state PCR Becаuse Dickens’s was Dickens’s claim of by IAC trial coun- claim was not procedurally deemed (Claim barred 19). sel The district carefully court by courts, the Arizona state he not does considered performances the of both trial need, and qualify for, cannot the Martinez counsel and PCR counsel and concluded exception to general the rule that aon trial performance that counsel’s at sen- petition habeas a court federal will tencing was neither prejudi- nor deficient consider an issue that was not in raised cial.

state court. c. Analysis. requirement The a prisoner state A comparison of the procedural cases’ first raise his in claims state court was postures why reveals excep- emphasized by Martinez Court in Cul — tion is not available to Pinholster, Mar- Dickens. len v. U.S.-, 1. majority asserts implicit that "the first time was in Martinez’s second state habe- argued [Martinez] ineffective petition. assistance of Certainly the factual basis for peti- PCR counsel was in seeking his exception federal habeas procedural an bar Maj. tion.” n. 17. presented at a was to the state court. Mar- See minimum, alleged tinez, IAC of PCR counsel 132 S.Ct. at 1314. factor, (2011). is mitigating nothing a there The Court L.Ed.2d 557 2254(d)(1) under supporting held that “review state court record before to the record was limited organic “new damage claims” of brain adjudicated the claim court that FAS. merits,” ruling that this and stressed Thus, Pinholster, under federal by the broader context “compelled may unex- courts not consider Dickens’s whole, a which demonstrates the statute as hausted claim.2 This does not neces- IAC prisoners’ to channel Congress’ intent a sarily mean that Dickens is without the state courts.” 131 S.Ct. claims first to may still file a course action. Dickens (internal quotation marks omit- at 1398-99 petition the state court successive PCR ted). specifically noted that Court alleging counsel and initial IAC trial contrary purpose to that would be “[i]t If courts PCR counsel. the state were petitioner to overcome adverse allow deny ground in- Dickens relief on the decision with new evidence state-court defaulted, procedurally court and claim he troduced a federal habeas then court in the first instance reviewed petition could file federal habeas effectively novo.” Id. de argue for application of the Martinez exception.3 This process ensures did not violate The remand Martinez get state courts first crack at new spirit the law or of Pinholster because preserving claims while defendant’s his claim of trial presented Martinez had petition ability to file a federal habeas if state court in counsel ineffectiveness (that relief petition the state is denied. second PCR procedurally had default- held was in Trevino procedure This was followed ed). Martinez, 132 at 1314. — Thaler, -, U.S. Moreover, initial ineffec- PCR counsel’s (2013), in the Su 185 L.Ed.2d 1044 which from the apparent tiveness wаs state court apply preme expanded Martinez to record, as she had filed statement assert- permit to raise states which defendants to ing could find no colorable claim that she they in that appeals prefer IAC direct but in petition to raise the PCR that she had petitions. do in at 1915. In so PCR Id. Thus, filed Id. when Mar- for Martinez. Trevino, petition federal habeas the remanded, the district court tinez was that “claimed for the first time Trevino presented on the could determine record constitutionally had effective not received to state courts whether Martinez’s first the during penalty phase the of his counsel ineffective, had PCR counsel been “stayed then trial.” Id. The district court whether claim of trial IAC was sub- Trevino to contrast, proceedings permit to raise In al- stantial. Id. 1321. claim in court.” Id. at 1916. Trevi- his mental health as though Dickens raised 668, Washington, Strickland v. 2. the extent that Dickens contends that his To (as (1984). L.Ed.2d 674 S.Ct. trial counsel IAC claim exhausted he did), jurisdic- initially the had district court course, might required consider it. the district tion to 3. to Of explain why careful consideration of the IAC claim he not file his successive court’s did might pre- petition response persuasively shows that Dickens cannot One be that earlier. Martinez, As he Supreme under the AEDPA standard. set forth the Court decided vail until III, infra, agree Thompson, in section I that Dickens has was barred Coleman v. performance trial 115 L.Ed.2d 640 not shown counsel’s (1991), obtaining PCR performance prejudicial the relief based on met either the or from prong for set in counsel’s ineffectiveness. of the standard IAC forth so, may did the Texas court that he post- no but concluded earn another round of he “had not raised this claim proceedings because conviction by raising it the during postconviction proceed- his initial first in time his federal habeas petition? ings, procedurally he defaulted the had majority’s approach encourages state Id. claim.” Trevino returned to feder- defendants to concoct “new” IAC claims al court leading which denied relief ulti- nothing are than more fleshed-out mately to Supreme opinion. Court’s of versions their old claims supplemented Trevino, Thus, in both Martinez state with “new” evidence. This cannot have determined, prior courts to the federal intention, been the Court’s nor is rulings petitions, courts’ the federal consequence it an but unintended inherent pro- that the defendants’ IAC claims were of in Mar- opinions Court’s cedurally barred. tinez Pinholster. contrary, To the Pinholster requires that a defendant first contrast, majority opinion, by al- raise his claim trial of in state IAC lowing a state defendant raise “new” court, and Martinez provides that when IAC claim time in his first federal this, defendant does the state court’s de- petition, only not assumes that the state termination that peti- successive PCR procedur- would find the claim to be procedurally tion barred,4 will ally prevent but barred not also creates an incentive for the federal court review defendant not raise an when failure to IAC in petition claim his state if he raise trial in PCR thinks counsel IAC the initial PCR receptive petition the federal courts will be more due PCR counsel’s IAC. Why Thus, is, Martinez his claim. wouldn’t a defendant hold and should be con- as, forego back or in developing only one claim his strued “a exception” narrow to the Martinez, postconviction first rule.5 petition hope preclusion parties through 5. have quarrel informed us letters I have no with the statement plurality opinion pursuant Appel- submitted to Federal Detrich that the Rule Martinez exception may apply where PCR counsel 28(j) late Procedure that there now are deci- IAC, raised some issues of trial counsel but by superior sions courts Arizona and not new substantial claim trial counsel Arizona, Appeals Court of Division hold- IAC he seeks to raise for first time in ing change does Martinez petition. his federal habeas See Detrich v. may law. While these reflect Arizona law as 1237, 1247-50, Ryan, 740 F.3d WL is, they binding are not on the Arizona (9th Cir.2013) banc). (en *8-10 and, course, Supreme Court the state Here, infra, as set forth Dickens has not opportunity courts have not had an fully raised a new substantial claim of trial counsel opinion consider the Court's recent separate rejected IAC the claims on their from Furthermore, in Trevino. a review of the However, by merits the state courts. where parties suggests cases cited that courts made, such an assertion is because there has may have determined that there was no merit been no state court determination that the claims, particular petitioners’ Martinez barred, procedurally new claim is the district ruling rather than that an otherwise meritori- procedure court should adhere to the fol- ous claim trial of counsel IAC would not be Trevino, stay proceedings lowed and course, Of considered. the Arizona courts permit petitioner attempt to raise the may determine whether as a matter of state Trevino, new claim in state court. See they modify preclusion law will their rule in at 1916. light of and Trevino. we Martinez case, represented In our Arizona has that it presume they forego should not that will con- present for would futile Dickens to his sidering an otherwise meritorious claim of current Thus, IAC claim to the Arizona courts. postconviction trial IAC counsel that counsel may any well have waived ar- having failed to raise in favor of the claim gument that Dickens's current IAC claim is considered Cain, federal court in the first in- procedurally not barred. See Trest v. 87, 89, stance. 139 L.Ed.2d Roy, clinical who as- psychologist of trial raised his claim Dickens counsel, was Dickens’s testified that court sisted counsel IAC state quali- He not him he rejected gave everything the merits. does counsel on defense fy exception. investigation the Martinez an and did needed to start place any not limits on his work. The

II that trial district court further noted were exception if the signifi- Even Martinez counsel had been aware of the case, trial, I would affirm to Dickens’s applicable sentencing stage cance of the denial of the writ be- court’s the district of Dickens cooperation had secured the has shows that Dickens cause record had family, and his access to school raised a new claim. records, not medical and had considered possibilities neurological numerous pres- not all that Dickens did agree We impairment, but that trial counsel had damage brain allegations organic his ent “neurological testing concluded that did majori- courts. The and FAS to state organic not establish an basis.” however, ty, leaps then conclusion rejected argu- district court further has on therefore “defaulted that Dickens perform- counsel’s ments defense overlooks IAC claim.” This conclusion prevailing professional ance was below raise claims of the facts that Dickens did norms, proper- had noting on his sentencing stage based IAC at the Roy reasonably re- ly informed Dr. issues, that the health alleged mental lied on his advice.6 rejected claims on the state court those law, Moreover, our case merits. under present claim of trial counsel allegations do not constitute Dickens’s new allega- factual simply IAC adds additional Thus, a new claim. because Dickens’s his initial claim of trial counsel tions to IAC was raised and claim trial counsel court, argued In state IAC. rejected the merits in state PCR He inadequate. preparation counsel’s exception is not petition, the Martinez argue, offers the continues to so but now available to Dickens. that, counsel con- allegation additional had In the state su- petition his PCR investigation, he would adequate ducted court, alleged that he perior from have learned that Dickens suffered sentencing had received IAC damage organic and FAS. brain stage. PCR counsel called as witness not allegations But do mitigation additional factual specialist who testified Weaver, “ac- we for the new claim. preparation counsel’s defense pred- factual sentencing phase knowledge[d] precise in- mitigation and changed claim after The district icate Weaver’s adequate unreliable. evidentiary that Dr. district court conducted its in its decision noted Mathis, (1997); complaint Lynce Petitioner’s that counsel did guidance to provide enough information or n. 117 S.Ct. 137 L.Ed.2d 63 436-37 Netherland, supported by Roy It (1997); Dr. is not record. Gray v. counsel, sig- 165-66, recognizing is evident 135 L.Ed.2d 457 trial, stage penalty inves- nificance of the (1996). dispositive, possibility This is not background pre- tigated Petitioner's however, II in Sections explained because Roy relevant information Dr. sented the dissent, III this Dickens’s claim trial in his sen- and offered it to the nor meritorious. neither new through expert tencing memorandum lay testimony. 6. stated: The district court 1330

hearing,” but concluded that “new factual the AEDPA lens.8 This means that for allegations do not render claim unex- relief on his federal habeas petition, Dick they ‘fundamentally hausted unless alter ens must show that the state court’s denial already by claim legal considered appli of claim of IAC was an unreasonable ” Thompson, state courts.’ Weaver v. 197 clearly law, cation of established Federal (9th Cir.1999) (quoting F.3d 364 Cha or an unreasonable determination of the (9th Wood, con 36 F.3d Cir. 2254(d); facts. 28 U.S.C. Harring see 1994)). here, Similarly, although “the pre — Richter, -, ton v. U.S. predicate” cise factual of Dickens’s IAC (2011). 770, 785, 178 L.Ed.2d fur As changed specifically allege claim that he section, following ther demonstrated in the organic damage suffers from brain and court’s state denial of Dickens’s claim FAS, legal claim of his IAC remains the of trial counsel is neither an IAC unrea same: counsel was ineffective because he application sonable of Federal law nor adequately investigate failed to unreasonable determination of the facts. mental health. There would be no end to litigation every allegation if new toas what majority, however, on two relies counsel properly would have found had he cases, pre-AEDPA Spalding, Aiken v. investigated a background defendant’s con (9th Cir.1988), F.2d 881 and Nevius v. a “new” claim.7 stituted Summer, (1988), 852 F.2d argue

. Moreover, the record shows that Dr. Dickens has fundamentally altered his le Roy did consider brain damage, and his gal claim of IAC. This argument is not report noted that Dickens’s mother con- Aiken, persuasive. the petitioner per sumed wine least three times week sought present for the first time in his while pregnant she was with Dickens. federal petition habeas evi “decibel-level” The record reflects that Dickens has not to support dence his claim that he had raised a new claim. requested during counsel his interrogation.

Because Dickens Id. at We has raised a 883. held that new was the claim, we must view his IAC claim through “very type of evidence which the state health, 7. quately investigated This concern is illustrated our recent his mental but (9th claim, Ryan, in underlying reject- decision Schaci F.3d Dickens's which was courts, Cir.2013). rejected There we ed petitioner’s state was and is that trial adequately investigate failed to presenting contention that he was "new” mental health. issue of trial counsel IAC. We noted: principal Schad's contention is that the Indeed, dis- brief, opening 8. in his filed before trict presenting court erred because he is Martinez, opinion Court's in different ineffective assistance claim than argued that he: presented in state court. He is now alleged that his trial counsel failed to con- contending federal claim of counsel necessary background duct mitigation respect ineffectiveness with to the effect of investigation and therefore did not ade- childhood abuse is somehow distinct from quately prepare expert, Roy. defense Dr. failing the earlier claim of ineffectiveness This was the same claim that he raised investigate the childhood abuse itself. proceedings federal habeas with ex- easily separated, two cannot so how- ception support of additional factual for the ever, mitigating because the relevant factor namely that Dickens suffers from claim — FAS sentencing always the effect of the organic damage. brain brief, childhood abuse his adult mental state. argues In his that because he Similarly, Id. at court, Dickens’s "new” asser- exhausted his remedies in "the tion is based on what he now contends trial required district court was to consider counsel would support have learned if he had ade- additional facts claim.” his

1331 instance,” and ter be addressed in federal court.” Id. in first consider the should (footnote omitted). the district court accordingly directed preju petition without dismiss the habeas majority asserts that we because to exhaust state remedies. for failure dice held in Aiken and Nevius that the new Like the decibel-level evi Id. at 888-84. presented evidence should have been Aiken, in the evidence dence courts, state the new must the evidence organic damage brain suffers from have stated a new or altered claim. But very type of which is “the evidence FAS mixing apples oranges. A state in in the first the state should consider prisoner seeking federal habeas relief ” at stance.’ Id. 883. present all the must new evidence to state courts, regardless evi- of whether the new Nevius, sought to chal- the defendant In claim, places supports existing dence peremptory seven lenge prosecutor’s claim in or light, a different creates excluding from the challenges, minorities Aiken, at new claim. See 841 F.2d 883. argument At 852 F.2d at 466. oral jury. allegations or not creat- Whether Nevius’s petition, in on his habeas the district court claim, present he had to the facts ed new allegations serious Nevius’s counsel made Ai- Similarly, to the state courts. even if pros- comments concerning alleged only improved evidence ken’s decibel-level to the counsel that were ecutor defense evidentiary right-to- “the basis for Aiken’s the trial. Id. at 469-70. We made after arguments,” counsel and voluntariness Ai- representations, “if recognized that these ken, did not F.2d state in proven, might presented have a differ- fundamentally na- new claim or alter the concerning light ent the factual issues claims, of his had ture evidence prosecutor exercising motivation of the to the in the first submitted state courts challenges.” Id. at 470. peremptory Thus, Aiken nor Nevius instance. neither Nonetheless, we declined to consider the guidance on provides much what consti- remarks, noting: Instead, tutes a “new” claim.9 we should remarks, however, alleged are not set forth apply our more recent standard any They part of record this case. allegations “new factual Weaver: do presented have not been to the state they unless render claim unexhausted courts, post- appeal during either on or legal claim al- ‘fundamentally alter the pro- proceedings. conviction In habeas ” ready considered state courts.’ not free ceedings, the federal courts are Chacon, (quoting F.3d at 364 36 F.3d places new to entertain evidence 1468). significantly pos- claim in a different ture, pre- when that evidence was never Furthermore, majority to use seeks courts. sented to state opposite Aiken and Nevius for the exact they decided. Ai- purpose Id. there is evi- which were “[if] We concluded Nevius, presented although pre-AEDPA ken and dence that should be cases, courts, sought to reinforce the standard attempt then must first state newly had to be present be made and to make a discovered evidence it there thereafter, in the Only appro- presented in the first instance record. under the Aiken, Here, may F.2d at 883. priate procedural the mat- courts.10 strictures addition, Aiken, questioned we the Fifth Circuit’s we have the con- 10. In reiterated Dispensa Lynaugh, F.2d statement tinuing validity of cases such Aiken and (5th Cir.1987), that: following Nevius issuance petitioner pres- opinion Stokley habeas [Where] Court's in Pinholster. a federal (9th Cir.2011). or newly other Ryan, ents discovered evidence 659 F.3d majority the seeks to Dick- subject applica- characterize stitute new claim to the allegations fundamentally ens’s new al- Rather, tion the exception. Martinez tering previously exhausted IAC claim allegations because new factual Dickens’s precisely present to excuse his failure to do fundamentally not claim legal alter allegations those to state courts and to IAC, of sentencing counsel which was re- present allow him them jected by merits, first the Arizona courts on its time district court. federal federal court review is subject to and limit- by sum, ed In contrary This AEDPA. has spirit is to the Aiken Nevius, importantly, and most con- raised new legal claim. trary to AEDPA. Title 28 U.S.C. 2254(e)(2) § limits when a federal Ill

may hold an on a evidentiary hearing state prisoner’s petition.11 federal habeas Finally, even if I thought that Mar majority’s holding circumvents AEDPA by exception tinez applied to this case and providing a prisoner state an evidentiary claim, that Dickens had raised new I hearing inquiring without into whether the would still affirm the district court’s denial claim or previ- new could should have been of the writ because compels the record 2254(e)(2)(A)(ii). ously § raised. See In- determination that Dickens cannot show stead, the prisoner only need convince a “prejudice” required “cause” and for relief federal court that his claim of IAC on the 687-96, Strickland, under IAC 466 U.S. at He, part his PCR ap- counsel new. S.Ct. 2052. parently, is then to an evidentiary entitled hearing, at least determine whether his Martinez, In the Supreme Court held actually PCR counsel was ineffective and prisoner may that a establish on an default whether his claim of trial counsel IAC is appointed IAC claim “where Majority substantial. at p. 1319. This initial-review collateral proceeding, where creates unnecessary, expensive, another raised, the claim should have been layer and improper to federal court review ineffective under the standards of Strick- of state sentences. addition, land.” 132 at prisoner “must

Although agree I also demonstrate that majority with the underlying the “Arizona courts did not have a fair ineffective-assistance-of-trial- opportunity to evaluate counsel claim one, Dickens’s is a substantial altered which is claim,” Majority p. 1319, IAC to say it does not prisoner must demonstrate follow that new allegations con- that the claim has some merit.” Id. (i) law, evidence not before state courts such as a new rule constitutional made place significantly the case in a different retroactive to cases on. collateral review stronger evidentiary posture than it Court, previously that was un- it, was when the state courts considered available; or given opportunity courts must be an (ii) predicate a factual that could not have consider the evidence. previously through been discovered the ex- Aiken, (alteration original). F.2d diligence; ercise of due 2254(e)(2) 11. 28 U.S.C. (B) reads: underlying the facts the claim would be applicant If the develop failed has sufficient to establish clear and convinc- pro- factual of a basis claim in State court ing evidence that but for constitutional er- ceedings, the court shall not hold evi- ror, no reasonable factfinder would have dentiary hearing on the claim unless the applicant guilty underlying found the applicant shows that— offense. (A) the claim relies on— non- “emphasize[d] allegedly that Petitioner’s the conclusion compels record The passive mur- violent nature and role not denied effective assis- enlisted the assistance of regard ders.” Counsel sentencing counsel tance of Roy, psychologist a clinical who evalu- organic damage brain Dr. claims of his “new” carefully prepared 59-page and a re- court re- ated Dickens and FAS.12The district sentencing Roy’s report Dr. “contained port. of Dickens’s the record viewed information, background detailing competent. pages that counsel was and concluded education, Moreover, childhood, nothing the Petitioner’s medical I there agree. history, employment sentencing psychological counsel and suggest record background legal history.” Roy Dr. that Dickens and or should have known knew parents and his organic from brain dam- interviewed possibly suffered infor- Thus, Roy’s report alle- mentor. Dr. included even if Dickens’s age and FAS. value, “reports of face the record mation on Dickens’s sexual gations taken at are abuse, injuries, and the fact of “some merit” head support finding will not mother drank alcohol Petitioner’s while in his claims. pregnant with Petitioner.” she are district court’s determinations Roy’s report Dr. recommended neuro- illustrative. It noted: binding but are examinations, and logical including EEG five-day sen- held [trial] However, at an MRI exams. October tencing hearing during which defense counsel, consulting Dr. hearing, after with on Peti- counsel called seven witnesses light the court that in Roy, informed hearing After the coun- tioner’s behalf. scan, longer had reason to be he no CT sentencing 76-page sel submitted func- with Dickens’s cerebral concerned listed numerous memorandum. Counsel tion. circumstances, nonstatutory mitigating diagnosis of Petitioner’s bor-

including Roy spent Dr. over 15 hours interview- narcis- disorder with personality derline and Dickens. He then testified ing testing features; childhood” a “troubled hearing. sistic sentencing extensively at abuse that featured “substantial sexual explained: The district court molestation, gravely which affected ma- with Roy] diagnosed Petitioner [Dr. development”; and his failure [his] severe; personali- jor mixed depression, necessary mental health treat- receive features; ty, narcissistic with borderline ment. inju- mild brain suspected traumatic Roy ry. Dr. described the antecedent aggravating fac- order to counter the an- State, depression as his “near by trial counsel Petitioner’s advanced tors impairment." respect argues ticularly with to mental PCR counsel were his they allegedly support focused on Although appears because ineffective record "investigat- judicial bias claims of instead perspective, eval- we need not district court's ing presenting Dick- meritorious issues. performance of PCR counsel when uate the complains "put lay no or that counsel ens ade- sentencing performance was counsel’s expert to show what evidence would witness Martinez, ("[A] quate. prop- presented trial counsel have been had un- prisoner also demonstrate that the must adequately investigated mitigation erly derlying ineffective-assistance-of-trial-counsel prepared Roy sentencing." The dis- Dr. one.”). If coun- a substantial trial claim is Dickens, noting disagreed trict court with adequate, petition- performance was sel's argued proceeding, that in the PCR by PCR’s prejudiced been er cannot have adequately sentencing counsel "did not challenge trial alleged failure counsel’s Roy investigate Petitioner’s prepare Dr. or performance. counsel's information, par- background mitigating on a regular during nihilation basis with victim fying aggres- both and the Roy Dr. Roy childhood.” testified Peti- sor. Dr. testified that Petitioner’s physically sexually tioner was age having ju- emotional when sex with brother, abused abuse which was venile males was 14-16. corroborated Petitioner and his Roy Dr. in support testified of various experience

mother. This affected Peti- mitigating factors. He asserted that Dick- ego development prevented tiоner’s and (a) potential ens: had rehabilita- normal psychosocial development. Peti- (b) tion; possessed a “borderline character experience “primary tioner’s structure” but an personality antisocial victimized,” being world was and the disorder; (c) violence; history no had of resulting stress caused Petitioner to re- (d) danger (except was not a to others gress Roy to a fixated state. Dr. fur- (e) possibly boys); teenage had fami- close ther testified Petitioner was sexual- (f) ly ties; and was considered “a valued ly by family abused a “trusted friend” at diligent and employee high and a achiev- seven; age six or adult “another in a er.” Roy Dr. “also testified that Petition- position authority,” of teacher at age er’s traumatic childhood a mitigating 12, 13, 14; aby or and law enforcement circumstance, as was his failure to receive experiences official. These “impinge[d] psychological needed care.” However, identity.” his according to Roy Dr. noted that pro- Dickens’s slow Roy, despite Dr. experiences these Peti- cessing tests, time on history some of head tioner develop aggression. did not trauma, confusion, emotional concentration Rather, he dealt with inner his con- problems, and headaches raised the possi- “attempted to undo the trauma to flicts— bility that Dickens from suffered brain youthful helping offenders. him”— damage. however, Dr. Roy, noted “that a Unfortunately, Petitioner lacked “emo- CT Scan and EEG were and administered ability” experienced tional and a “loss of ” the results ‘clear’ were and that some of ego boundary” which caused him to en- administered tests he had “did not gage in sexual activities with underage support a finding organicity.”13 None- Nonetheless, males. Roy Dr. deter- theless, Roy Dr. did not think Dickens was mined that Petitioner did not meet the Moreover, malingering. Roy Dr. testified criteria having violent propensities that Dickens had lacked the kill intent to juveniles his sexual activities with the Bernsteins.14 did not constitute violence. According to Dr. Roy, Petitioner was able to devel- Sentencing counsel also called Dickens’s op capacity “observational and show older brother who testified empathy for children who had frequently been was by his beaten older broth- abused. in attempting to ers was very remorseful for vic- his “eliminate conflicts” “find appro- the shooting. tims of Counsel also called priate discharge,” O’Connor, Petitioner acted out Michael sergeant sheriffs abuse, repeating cycle and identi- from Diego, San who testified that when 13. The district court further Roy determined Dr. also testified detail about Amar- sentencing ignore al, counsel "did not or over- partner who was Dickens’s in crime and possible look damage," evidence of brain be- actually thought shot the victims. He although Roy cause Dr. noted that Dickens had psychopathic personality Amaral symptoms neurological showеd impair- manipulated had controlled and Dickens. ment, "neurological testing did not establish organic basis." scope on the In- court’s conclusion was based to the Juvenile was referred mitigating present- case depth following Program Diversion tervention ed, distinguishing well trial counsel’s as offense, he had worked well with drug performance performances from the ad- addition, In counsel years. five kids for the Supreme recent decisions of dressed had examined who psychologist called a that unlike Court.15 The court determined mother. Counsel Amaral and Dickens’s cases, presented in situations those friend, family who testified also called a arising from prejudice Dickens’s “claim of mother, enjoyed Dickens “loved investigation mitigating cir- counsel’s into busy always out adults and was helping handling Roy Dr. is not cumstances and chores.” with district supported by record.” The that “coun- of its conclusion support “[wjhether opined: or not nei- sentencing at was performance sel’s Roy Dr. with addi- provided should have the prejudicial,” nor district ther deficient direction, information the given tional or sentencing counsel had court found that in mitigation that was presented evidence of sen- significance the the aware of been a of a probability there was not reasonable The court found stage of the trial. tencing if counsel had taken a different sentence allegation the that for no factual basis mitigation case or approach different Roy Dr. with provide had failed to counsel Roy Dr. as a thoroughly prepared more guidance. or It also information sufficient also commented that witness.” The court questioning counsel’s found no basis identify significant Dickens “failed to rely Dr. “an Roy, on decision to retain and that disparity between the evidence could psychologist who had experienced clinical presented sentencing been at have regarding mitigation previous on testified present.” that counsel did evidence The court observed that even occasions.” Finally, district court that observed Roy testify, or prepared if “Dr. was not counsel’s prejudiced persuasive, it testimony if his was not at because “the performance sentencing fault defense counsel.” not the of judge over both Petitioner’s presided same sentencing Having determined sentencing litigation and the of trial and the dis- performed adequately, had during counsel his ineffective assistance claims its of relief trict court buttressed denial district court proceedings.” PCR finding could not meet should be also that Dickens the standard suggested is, possibility is a reasonable prong of he whether there the second Strickland —that would mitigating evidence prejudice. The district further could not show care, abuse in foster and diminish- distinguished the cases and sexual 15. The district court Williams, 374, Beard, capabilities); 529 at Rompilla ed mental of 545 U.S. 125 S.Ct. 395-96, (counsel 2456, (2005), failed tо Wiggins 120 S.Ct. 1495 162 360 L.Ed.2d 510, 2527, Smith, imprisonment present parents’ evidence of 156 539 U.S. home, (2003), neglect, re- Taylor, abusive foster and Williams v. criminal L.Ed.2d 471 1495, capabilities, and commenda- 146 L.Ed.2d duced mental 529 U.S. (2000), given positive behav- mitigating to defendant for the amount of tions based on cases, ior). Supreme Court In all three present at sen- evidence that counsel failed to 391-93, infor- jury had access Rompilla, held if tencing. See 545 U.S. at trial, (counsel during the was a reason- present mation there failed to evi- 125 S.Ct. 2456 parents, probability that different sentence ex- able of alcoholic and violent dence isolation, Rompilla, cogni- 545 U.S. might have resulted. poverty, and reduced treme 2456; Wiggins, U.S. at S.Ct. capabilities); Wiggins, tive Williams, 2527; (counsel U.S. at present failed to evi- 123 S.Ct. 2527 mother, physical 120 S.Ct. 1495. dence of abusive alcoholic changed trial judge’s position.16 though Roy’s report have Dr. Dick- noted that The district court trial concluded ens’s mother drank alcohol three times judge “assessed Petitioner’s ineffective as- while pregnant week she was with Dick- ens, presiding sistance claim after over trial “failed to retain an expert counsel sentencing, applied Strickland to re- discuss the effects that alcohol had on ject allegation prejudice, Petitioner’s argues client in útero.” He also that Dr. imposition of Roy’s and noted that report possibility death indicated organic damage sentence was not a close call.” brain that led to fur- Weiss, testing by ther a Dr. but that Dr. noted, As the district court’s conclusions Weiss was more with concerned a back us, binding are not but description its injury Dickens sustained after crime sentencing hearing and defense coun- occurred, report and his failed to consider sel’s efforts are accurate. Dickens’s prof- Roy’s Dr. concern with brain func- limited contrary fer evidence does not rise to tioning. Dickens claims sentencing the low threshold of “some merit.” Mar- equip “failed to Dr. with the Weiss tinez, 132 S.Ct. at 1318. Dickens asserts necessary tools properly make a deter- expe- that his had sentencing counsel little mination regarding testing.” cases, capital rience with did not conduct family “assessment interviews” of These provide observations do not Mends background to discover informa- sound basis for an IAC claim. Dickens tion, mitigation and was not aware spe- of twenty years was tried and ago sentenced objects cialists. Dickens that rather than performance in 1993. Counsel’s must be complete mitigation investiga- conduct a evaluated on the of basis the standard of tion, sentencing counsel handed documents representation as it then existed.17 See Roy over to Dr. “and left the entire pres- Strickland, 466 U.S. at 104 S.Ct. 2052. entation of the mitigation Roy’s case Dr. Moreover, recently as we reiterated in Cox hands. Dickens further alleges that a box (9th Ayers, Cir.2010), 613 F.3d 883 general of information missing was from is ‘identify “[t]he burden on Petitioner to of boxes information to given Roy Dr. the acts or omissions of counsel are that Roy experience ‍​‌‌‌​​​‌‌​‌‌‌​‌​​​‌‌‌‌​‌‌‌​​​​​​​‌‌‌​‌​‌‌‌‌‌‌​​​‍and that Dr. had pre- no alleged to have been the of result ” senting mitigating capital evidence in tri- professional judgment.’ reasonable Id. at als. Strickland, (quoting 466 U.S. at 2052). Addressing Here, his claimed FAS and brain taking damage, argues value, Dickens now allegations that even at face his “new” claim of Stewart, sentence, 16. The district court cited Smith v. easy verse and it too is all for a (9th Cir.1998) ("We court, 140 F.3d are examining counsel’s defense after imagine asked might to what the effect have unsuccessful, proved has to conclude that upon sentencing judge, been who fol- particular act or omission of counsel was law, lowing especially one who had heard Isaac, Engle unreasonable. Cf. testimony Mitigating at trial. evidence 107, 133-34, 71 L.Ed.2d might sentencing well have one effect (1982). attorney A fair of assessment judge, having without the same on a effect performance requires every that effort be officer.”) judicial different distorting made to eliminate the effects hindsight, to reconstruct the circumstances Strickland, 17. In Court stated: conduct, challenged of counsel’s and to scrutiny performance Judicial of counsel’s per- evaluate the conduct from counsel's highly must be It deferential. is all too spective at the time. tempting second-guess for a defendant to 466 U.S. at 104 S.Ct. 2052. counsel’s assistance after ad- conviction or evidence, totality only argues ering that counsel He IAC lacks merit. sentencing conclusion that discuss the reasonable expert to did not retain adequately, at in- performed in counsel least had on his client that alcohol effects útero, that he failed discover Dickens’s suggest is little sofar but there damage FAS. alleged organic of this brain have been aware counsel should most, possible that Dr. At it is possibility. com- totality of the evidence also to learn of this Roy might have been able sentencing if the conclusion that even pels nothing suggest but there is possibility, performance somehow fell below counsel’s or actually possibility that knew of he mark, prejudiced. Dickens was not deliberately inform counsel.18 failed to Dickens, the found sentencing judge trial reasonably his Similarly, relied on counsel aggravating least two factors. possibility Dick- experts assess the statutory mitigating no fac- court found possible, damage. Again, it is ens’s brain tors, argue that his and Dickens does not argues, experts that his as Dickens now damage present claim brain and FAS diagnose properly test failed statutory mitigating constitute a would sentencing counsel can damage, brain but factor. The trial court noted Dickens perceiving this.19 hardly be faulted for not miti- urged non-statutory had a list of 31 Furthermore, agreed de- circumstances. It alleged gating failure to with It number of these. found possible mental concerns must be tect two childhood, family psycho- “had a troubled in the context all considered he dysfunctiоnal, somewhat has logical mitigating and mental factors loving caring mother Roy always Dr. did had sentencing devel- family.” supportive he now has a noted, Roy diagnosed Dr. op. As severe; ex- The court further found that Dickens major depression, mixed “with remorse,” sympathy or but hibited “some personality, with borderline narcissistic features; “capacity appreciate to suspected mild traumatic that his and wrongfulness of his conduct at the time injury.” Roy Dr. testified to Dick- brain brothers, and execution of these offenses by planning his sexual beating ens’s his time child, history to conform his conduct that a his of head trau- or abuse as signifi- law requirements of was not mas, that his mother drank when the and even extremely unlikely It is cantly impaired.” with Dickens. Consid- pregnant she was eds., declaration, Institute of Medi- Frederick Battablia 18. In his 2002 Dr. Thomas cine, 1996). psychologist Thompson, retained Dick- a ens, alleges exposure in útero "[a]lcohol that suggests for FAS was not This that test major teratogenic a to have and known widely or disseminated until established (brain) impact system central nervous years after was sentenced. three Dickens developing in 1992. He then lists fetus a articles that discussed number of academic any appeal, has not offered 19. On Dickens syndrome that were available fetal alcohol de- the district court's evidence that counters addressing specif- when signif- identify a termination that he "failed to case, Thompson writes: ics of this Dr. disparity the evidence that icant between Joan Dickens con- The amount of alcohol sentencing presented and have been could Greg during pregnancy with sumed her present." did the evidence produce an amount sufficient constitutes failing shortcomings Roy’s Whatever Dr. Syndrome as defined Fetal Alcohol damage diagnose organic Dickens with brain Report of 1996. See Institute of Medicine FAS, nothing in the record to and there is Syndrome: Diagnosis, Epide- Fetal Alcohol or have suggest trial counsel knew should Prevention, mology, and Treatment 74-79 alleged failings. known of these Stratton, Howe, (Kathleen Cynthia and further evidence concern- For presenting the reasons set forth in I parts and ing damage discussion, Dickens’s brain or FAS II of majority opinion’s would have resulted a sentence.20 Dickens’s claim is properly different Enmund/Tison rejected. However, request Dickens’s for sum, in contrast to the factual rec- pursuant relief to the Supreme Court’s ords in cases we have found where IAC opinion reject- in Martinez should also based on trial counsel’s failure ade- ed because he is not eligible relief a quately investigate present or defen- Martinez, under proffered he has not condition,21 dant’s mental of Dick- review claim, “new” and there is no merit to his (as sentencing hearing ens’s well as his proffered claim. The district court’s deni- postconviction proceedings) shows al of petition his federal habeas should be presented reasonably trial counsel I Accordingly, affirmed. respectfully dis- mitigating concerning evidence sent from majority’s remand of this case to Furthermore, mental condition. is un- the district court. likely judge, that the state who sentenced presided postconvic- over CHRISTEN, Judge, Circuit with whom tion proceeding, swayed would have been PREGERSON, WARDLAW, Judges by the “new” (developed evidence well af- BERZON, and join, MURGUIA dissenting ter his sentencing) might that Dickens II, I concurring Parts in Part III: organic have damage suffered from brain if Accordingly, majority FAS. even I could con- persuasive makes a case in procedurally clude that eligi- support of an uncontested issue: ble exception, for the Martinez supported even if record jury’s decision to I could conclude that he is asserting Gregory convict robbery, Dickens of con- justifies “new” claim that raising spiracy him as- robbery, commit felony first sertions time in federal question murder. But the we must decide petition, habeas I would still affirm the is whether the record and law justify denial petition of Dickens’s habeas because Court’s decision to compels this record a determination that affirm imposition penalty. the death sentencing performance counsel’s imposing was Because the death penalty in this inadequate. case is application unreasonable report prepared by 20. A Thomp- Dr. Thomas ficient where counsel no "conducted investi- may appropri- son indicates that FAS retard gation past whatsoever into Silva’s and also developmental maturity, ate adult result in minimally failed even prepara- assist in the poor judgment making, and decision and in defenses”); possible tion of mental Bean v. neuropsychological Dickens "resulted in defi- Calderon, 1073, (9th. Cir.1998) 163 F.3d 1078 impaired ability cits that to overcome dif- (counsel "engaged preparation” in no ficulties associated with a chaotic social-emo- investigation "conducted no penalty-phase of learning present tional environment in the issues”); Lewis, 1373, Claboume v. F.3d 64 family home." is not This an assertion that (9th Cir.1995) (counsel any 1384 "did call not capable appreciating not of the witnesses, any introduce of [defen- evidence Moreover, wrongfulness of his conduct. illness, history argue any of mental dant's] or the context Dickens’s involvement with mitigating circumstance besides [defendant’s] murder, Amaral the further medical ex- offense”); mental condition at the time planations for Dickens’s behavior were not Stewart, 1112, (9th Wallace v. 184 F.3d 1114 likely changed sentencing judge’s have the Cir.1999) (counsel pro- failed to discover and mind. experts vide to their mental health various See, e.g., 825, Woodford, Silva v. test results information about 279 F.3d defendant's (9th Cir.2002) (counsel’s performance incredibly dysfunctional 846 family background). de-

1339 784, of their home. Id. at by the back door as articulated law clearly established 788,102 in En S.Ct. 3368. Court Supreme the United States mund, Florida, 782, 102 S.Ct. 458 U.S. v. In of the Florida court’s death its review (1982), and Tisоn v. 3368, 1140 73 L.Ed.2d determination, the Court made eligibility 1676, Arizona, 137, 107 95 U.S. S.Ct. 481 robbery had is clear that it “no doubt that (1987), at because least 127 L.Ed.2d deserving punish- crime serious a serious of fact were findings unreasonable two not, ment,’ robbery it that “is but observed decision, I Arizona court’s to the critical however, an grievous a crime ‘so affront majority’s from the respectfully dissent only adequate response humanity ” opinion. 797, may penalty of death.’ Id. at be the Gregory penalty the death

Imposing (citing Georgia, v. Gregg 102 S.Ct. 3368 Dickens, in an armed getaway driver 153, 184, 2909, 96 49 428 S.Ct. U.S. life, attempted took robbery “who neither (1976)). further L.Ed.2d 859 The Court life,” life, to take nor intended to take prefaced opinion its with the observation Eighth and Fourteenth violates it not question before was wheth- appli is unreasonable Amendments and penalty disproportionate er the death clearly federal law. established cation generally, for murder “but punishment 801, Enmund, 787, 102 458 U.S. validity capital punishment rather in his participation Dickens’s S.Ct. 3368. 798, Id. at for Enmund’s own conduct.” actions of closely so crime resembles 3368. The Court stressed S.Ct. Florida, in Enmund v. Earl Enmund must Enmund’s inquiry the focus of be on Supreme Court held where the culpability culpability than the rather constitutionally could be penalty death not accomplices committed actual who meaningfully imposed, that cannot murder, “for insist on ‘individualized we falls distinguished. culpability require- as a constitutional consideration ” to En exception far short of the narrow sentence.’ imposing ment death Arizona, mund, v. Tison created Ohio, 586, (quoting Id. Lockett U.S. “ma individuals whose conduct constitutes (1978)). 605, 2954, 57 L.Ed.2d 98 S.Ct. felony offense and jor participation” has been consistent life. indifference to human reckless ac- instructing that death sentences petition 1676. The kill intend that a complices who or do be granted. should for offend- place take are reserved killing highest levels of cul- ers who manifest the Application of En- I. Unreasonable See, Tison, 481 U.S. at pability. e.g., mund/Tison who (identifying offenders among culpable most and dan- rank “the Major Participation A. murderers”); Kennedy v. Loui- gerous of Florida, Enmund siana, penalty the death Court held (2008) (stating capital 171 L.Ed.2d 525 petitioner as to a applied unconstitutional be limited to offenders punishment must felony murder under facts of convicted (internal quota- culpability” with “extreme case. 458 strikingly similar to Dickens’s omitted)). tion 788-801, Earl at 102 S.Ct. 3368. U.S. an innocent was no means in an armed Enmund getaway Enmund driver was was that of 788, bystander; his involvement 102 3368. robbery. Id. at S.Ct. robbery. to armed nearby, accomplice planned, his he in a car waiting While Enmund, 797, at 102 S.Ct. 3368. 458 robbery victims at U.S. accomplices killed two 1340 opinion weapon Court cabined its to ders or knew Amaral had Supreme the with robberies; of appropriateness

an evaluation of the the him for the drove Amaral [he] scene, in Amaral penalty death a situation where a defen- to the waited while commit- robberies, triggermen, not the but the picked up dant was one of ted Amaral after crime, was a wait- constructivе aider abettor the witnessed the destruction of evidence, ing help accomplices escape. report to robber and failed to the crimes.” 2, 788, Dickens, Apart 1, Id. at n. S.Ct. 468, 786 102 3368. State 187 Ariz. 926 P.2d (1996). driver, getaway from status as a the penalty 490 The death cannot be Court not reach of many constitutionally applied did need to the in Dickens’s case because, Enmund, facts in Enmund because the Florida Su- as in Dickens was a preme rely did But getaway planned Court them. driver for a robbery, he homicide, is clear that was a of part Enmund not commit the “did was not was, planned enterprise criminal after present killing place, when the took —he all, getaway waiting help participate driver to his did not in a plot or scheme to Enmund, accomplices escape 795, at the time the mur- murder." 458 at U.S. 102 Indeed, place. ders took in to order be S.Ct. 3368. Dickens was removed from of aiding abetting murder, convicted under just the immediate scene of the time, at 786, Florida law the Enmund had be Enmund was. id. constructively present, “pursu- found to be ant previous understanding,” to a situ- writ corpus A of habeas appropriate if ated encourage so as abet or the actual adjudication of a claim in “resulted in perpetrator committing felony or in decision that ... involved an unreasonable commission. escaping after its Enmund v. ... application clearly of established Fed-

State, 1362, (Fla.1981), So.2d 399 1370 law, eral as determined rev’d, 3368, 102 S.Ct. 73 of the United States.” U.S.C. (1982). L.Ed.2d 1140 2254(d)(1). state-court decision ... “[A]

Ultimately, the Court reasoned that be involves an application unreasonable cause Enmund “did not kill or intend to [Supreme precedent if the Court] kill,” imposition penalty death unreasonably court either a legal extends 798, 801, impermissible. U.S. at principle precedent from our to a new decision, 3368. In reaching S.Ct. this context where apply it should not or un- Court observed that reasonably time its principle extend that refuses opinion it was “not single per aware to a new where apply.” context it should felony son convicted of murder over the v. Taylor, Williams past quarter century who did not kill or (empha- 146 L.Ed.2d 389 kill, attempt added). and did not intend sis The Arizona Court’s victim, death of the who has been execut decision to penalty affirm the death in 796, 102 ed.” Id. at S.Ct. 3368. clearly Dickens’s case contravenes estab- law lished set out Enmund. participation robbery Dickens’s resulted the murders of Laura and The imposition penalty death Bryan strikingly Bernstein is If justified similar. case cannot be under the there a thing generic is such as a descrip- narrow exception the Enmund rule es- driver, tion getaway Arizona, for a in- tablished in Tison 481 U.S. at volvement fits he helped plan the bill: contrary, S.Ct. 1676. On the Ti- in advance, robberies he either “furnished ’s sharply contrasting only son facts under- Amaral the weapon with used in the mur- that penalty score the death should not be desert, and the family into driving the established exception The here. imposed аt Id. gunpoint. at the victims of the imposition guarded the permits in Tison knew that 151, They who neither 1676. petitioners 107 S.Ct. penalty for death killing nor inflicted “thinking victims kill their about” was father intended their wounds, only available but that the the is no hint family, fatal but there the that a finding been a there has where intervene. any attempt made brothers in the participation of “degree petitioner’s Instead, record the showed id. minor, and than rather major was crimes by when standing close were brothers the finding of the a support would the record and mate] cell father’s they [their “saw indiffer- of reckless mental culpable four their brutally murder father their S.Ct. Id. at human life.” ence to from their repeated blasts captives with 1676. 140-41, 1676. 107 S.Ct. at shotguns.” Id. Dick- argued that credibly during It the cannot said that “later brother One the that of approaches culpability ens’s willing person have been would escape he their brothers, helped father —a who Tison or death ‘very close life in a ally to kill their father’s murderer —and convicted recognized after that he situation’ murderer— convicted cellmate—another of kill possibility a escape there was just was not Murder prison. from escape 144, 107S.Ct. 1676. Id. at ings.” Tison brothers’ of the result hypothetical a of degree brothers’ the Tison Regarding mur- their father had they knew plan; “Far from wrote: the Court participation, during previous a guard prison a dered away from car merely sitting a an ice with Armed escape. Id. prison acting as the murders of the scene were actual Tison brothers guns, the full of chest robbery, petition- each a spree driver getaway in a crime participants major every robbery, element involved jailbreak actively a was from er progressed physical- mem- of four the murder kidnaping-robbery kidnaping, of the 139-42, at Id. of family. sequence an innocent entire during the bers of ly present con- The 1676. the murder culminating in activity criminal partic- brothers’ Tison subsequent cluded Lyons family of the finding a support “clearly would ipation 158,107 S.Ct. 1676. at flight.” Id. appreciated subjectively both they a contrast, “sitting Dickens, by in the to result likely acts were that their of the scene actual away from the car 152, 107 at life.” Id. of innocent taking a driver to getaway as the acting murders added). (emphasis S.Ct. robbery place took The robbery.” Id. participation active brothers’ Tison of side opposite area on in a rest night, mur the two they helped after continued Dickens from where highway a divided geta When prison. escape from derers Dickens, 926 car. getaway in a waited flat using tire had they way car were majority Though at 474-75. P.2d vehicle, id. they needed different watched which picture paints broth the Tison 152, 107 one of murders, the record part” “each flagging role the crucial “performed ers on he waited that, where from only shows inno by an occupied car passing down could highway, far side entrusted fate was then family whose cent and the Amaral light а flicker see previously had killers he known headlights in front passed victims Id. at armed.” car. Bernsteins’ in the family, participated robbed brothers B. Reckless Indifference 926 P.2d at 490. The Arizona court also considered three other factors: “that De- Under the exception articulated Ti- fendant [1] had experience considerable son, major even participation in a felony justice with system through his other offense is insufficient unless it is combined convictions, felony [2] was aware that with a finding of “reckless indifference to had a Amaral violent explosive tem- human life.”1 481 U.S. at per, and [3] failed render knowing aid 1676. This requirement presents an inde- that one victim might not be dead.” Id. pendent constitutional barrier to imposing None of these factors warrants the imposi- the death penalty in Dickens’s case be- tion of the penalty death in this case. support cause Arizona court’s find- ing of reckless indifference to human life is First, the Arizona court referred to considerably than weaker here it was in Dickens’s experience “considerable with Tison. justice system through felony other convictions” when it decided that Dickens

Tison recognized that the common law acted with reckless indifference to human and modern criminal classify codes behav- life. Id. But prior Dickens’s convictions ior that constitutes “reckless indifference forgery were for and lewd and lascivious to human life” with intentional murder. minor; acts with a deplorable crimes, but Id. at Today, 1676. not crimes that demonstrate a reckless Model Penal Code continues to observe indifference to human life. important classification. Pe- Model 210.2(1). Tison nal Code nothing does Arizona Court also consid- to undermine the long-standing reserva- ered that Dickens knew Amaral had a tion of the penalty death only the most violent and explosive temper. majori- serious Tison, offenders. Under it is the ty also factor, cites this arguing that Dick- disregard reckless for human implicit life ens “could have foreseen that lethal force in “knowingly engaging in criminal activ- might used,” be and suggesting that this is ities known to carry grave risk of a marked difference between Dickens’s ” death that represents highly culpable case and Maj. Enmund. Op. at mental state may be considered 1315. But by relying on the foreseeability death eligibility determinations. 481 U.S. of this robbery going awry, the Arizona 157-58, 107 S.Ct. 1676 (emphasis add- court and majority stray from the ed). imposed boundaries by the Supreme In its analysis of the reckless indiffer- Court. If the “reckless part indifference” part ence of the Tison exception, Ari- of the Tison test could be merely satisfied zona Supreme Court adopted the trial showing that it was foreseeable an court’s findings regarding major robbery armed could deadly, turn the Ti- participation, Dickens, discussed above.2 exception son would swallow the Enmund Notably, though the Tison provided Instead, brothers 107 S.Ct. 1676. the Court remanded weapons” "arsenal of lethal question to two con- to the tо make that murders, victed "prepared were kill fur- determination. break,” therance of prison and had heard say their father "thinking he kill- about” 2. The Tison court finding noted that a ing an family they helped innocent had rob might reckless supported indifference kidnap, United States support same facts that finding major did finding not make a of reckless indiffer- participation. 481 U.S. at 158 n. Tison, ence to human life. S.Ct. 1676.

1343 murders, his own testimo- he corrected but expressly As the rule. not recall he could that and clarified ny in Tison: acknowledged after Even occurred.3 this whether like felonies in violent [participants testified, don’t “I still Amaral prompting, ‘antici- frequently can robberies armed going I’m out. coming him remember might ... be force lethal pate he where enough span time not was There underly- the accomplishing ... used I across when get the side left other may well Enmund himself felony.’ ing Record at Transcript of running.” was Indeed, possi- the anticipated. so have Dickens, (Ariz.Super.Ct.1993) State in the is inherent bloodshed bility of witness, Dick- 18454). only other (No. felony and any violent of commission himself, that he drove flatly denied ens generally foreseeable is possibility this Because Id. at 162. area. the rest into at 107 and foreseen....” Court, ma- and the Arizona the omitted). (internal citation specu- on emphasis place significant jority, rejected Tison, Supreme Court the the one of victims Dickens knew lation per- standard that rigorous less Arizona’s survived, important have it might for penalty the death of application mitted con- not hear jury did recognize that “antici- who could accomplices murder find- point. The testimony on this flicting might be or force would lethal pate[ ] to a aid failed to render Dickens ing that might be or taken life would or that used of the the result was not surviving victim felony.” underlying accomplishing of events two versions hearing jury Because 150-51, 1676. Id. at in- one witness choosing believe simply robbery carries virtually any armed sure, Amaral be other. To of the stead result, could consequences that lethal risk witness— shockingly inconsistent awas forseeability treating errs majority entirely new account debuting an even demanding “reck- the more proxy as a time at trial the first events for by the required -standard less indifference” di- actually giving him Dickens involved Id. Court. never-previously-mentioned via rections court concluded Arizona Finally, support is no But there walkie-talkies.4 part indifference that the reckless find- unreasonable court’s because satisfied was Tison exception rest through the that Dickens drove ing knowing that aid to render “failed Dickens surviving to a aid to render and failed area P.2d be dead.” might not victim one victim. sup- simply does record at 490. The must, that recognizes, as majority best, Amaral At finding of fact. this port cannot scenario” Amaral’s “walkie-talkie trial testimony at gave equivocal initially at Maj. Op. upon. reasonably be relied through drove Dickens whether regarding no mention had made n. 4. Amaral committed after Amaral rеst area leaving if he up, I don't know picked do believe me "I Amaral testified: During trial 3. on, stop or leaving the rest he did as far as had later the interstate we from conversation stop to rest through the going going rest out say coming lane he was into everything moving nobody or make sure stop.” Id. 88. Transcript of Record care of.” was taken (No. Dickens, (Ariz.Super.Ct.1993) State against testify agreed to 4. Amaral 18454). Amaral examination But cross himself, and penalty receiving the death avoid whether not remember he could clarified that Dickens, pre-trial statements. gave several he stop: "The the rest through drove P.2d at came is he thing I can remember only the “walkie-talkie scenario” in any of there is no competent evidence that this pre-trial physical statements and no evi- occurred. dence supported theory. Convenient- A petition for corpus may writ habeas ly, Amaral’s new version of the robbery granted where it is shown involved the claim that Dickens and Amar- decision was based on an unreasonable al were using walkie-talkies and that Dick- determination of the in light facts of the ens directed Amaral to leave “no wit- presented evidence in the pro- state court nesses.” But in argument his before the 2254(d)(2). ceedings. Here, U.S.C. Court, Arizona Supreme even the Arizona evidence from the trial court proceedings Attorney Assistant General conceded that does not support jury neither the nor the trial court be- Court’s independent finding that Dickens lieved Amaral’s story.5 walkie-talkie He gave directions to Amaral over a walkie- argued that the Arizona Supreme Court talkie, or finding its that Dickens failed to “shouldn’t believe[ ] the walkie-talkie testi- render aid.

mony” either. The Assistant Attorney In light of the presented evidence in the surmised, General “maybe [Amaral] de- state court proceeding, how is it that the cide^] add a little something extra to majority reaches the conclusion that Dick- testimony try and make it more ens, getaway driver, fits into the narrow damning to Transcript [Dickens].” of exception carved out Tison ? What Argument, Dickens, Oral State v. 187 Ariz. permit facts Dickens’s actions (No. 93-0548). 926 P.2d 468 The deemed comparable to the extraordinarily Attorney added, Assistant General “there culpable more criminal conduct of the Ti- question here, is no plan was to rob. son brothers? majority The plan answers The these was not to kill.” Id. questions by relying on at least two criti- Disregarding the evidence the record cal, unsupported, and unreasonable find- position and the of the Arizona Assistant ings words, of fact. In other the majority Attorney General, the “Facts and Proce- makes the same mistakes made History” dural section of the Arizona Arizona court. opinion court’s includes court’s inde- pendent factual finding that “speaking First, the majority states: “Dickens through walkie-talkie, Defendant then drove through to, stop the rest in his ” Amaral, told Dickens, ‘No words, witnesses.’ verify that ‘everything was taken P.2d at 474. And the section of the Ari- care of pick up Amaral.” Maj. Op. at zona court’s opinion specifically added). con- (emphasis But these were sidered the imposition of the death penalty words; not Dickens’s they were Amaral’s mistake, builds on this citing words, and, already as explained, Amaral “fail[ure] render knowing aid that one corrected his testimony own on cross ex- might victim not be dead.” Id. at 490. amination by that, clarifying “The only only way would have known thing I can remember is he came and Bryan Bernstein had survived is if picked he up, me I don’t know if he was had driven through area, the rest and leaving the interstate as far as leaving the 5. There can be jury little premeditated doubt did not conspiracy murder or to com- buy the last minute flourish Amaral added to murder, mit indicating likely did not believe testimony; they acquitted pre- Dickens of testimony Amaral’s that Dickens ordered him meditated murder conspiracy to commit to kill the two-way Bernsteins over a radio.” majority murder. acknowledges as Maj. Op. at 1315 n. 13. jury much: "[T]he did not convict Dickens of only see that he could freeway” and out going lane into the coming stop or rest if light some- “flashes of as or Record “shadows” Transcript of stop.” rest headlights.” in front of Dickens, passed one (Ariz.Super.Ct.1993) State majori- support the does not 18454). that Dick- The evidence evidence (No. Without watched “each area, only that Dickens ty’s statement through rest drove ens they Dick- murders finding that the Bernsteins’ part for the support hint Maj. that one at 1313. knowing Op. aid unfolded.” to render “failed ens not be dead” might victims is that support does the record What testi- discredited walkie-talkie thoroughly do. drivers getaway what Dickens did nor the the trial mony that neither Enmund, acquiesced or planned he Like jury believed. a robbery, drove an to commit armed plans the Tison court Second, likely because scene, the accomplice to crime dangerous proximity brothers’ Tison the considered occur, robbery to drove for the waited case, majority the in that murders the to scene, the away from crime accomplice proximi- in close Dickens place to attempts of the destruction or directed witnessed majority asserts The to the murders. ty the crimes.6 evidence, report and failed his truck” from “watched Dickens that Death and Effective Antiterrorism The the Bernsteins’ part of “each see could (AEDPA) applies of 1996 Penalty Act Op. at Maj. unfolded.” they as murders correctly notes majority the case and the contradicts the record 1313. But is relief to obtain threshold that the the murders. Dickens could see that notion inBut application. due to its heightened opinion cer- Court’s Supreme Arizona The in this granted be my relief should as- view majority’s the support tainly does not Supreme Court’s Arizona the case because p.m., sertion; that it was 9:17 only notes applica unreasonable involved an decision waiting the eastbound in that law federal clearly established tion of car Bernsteins’ area, he saw the that rest Supreme the States determined United across rest area westbound into drive the an it was based Court, and because a later “saw that Dickens highway, the in facts of the determination unreasonable shots.” and heard two flash muzzle court. the before state the record light of record The court 474-75. trial at P.2d — U.S.-, Richter, Harrington Of- majority’s finding. actually refutes L.Ed.2d 624 (the on the S.Ct. officer first Johnson ficer 2254). majority § 28 U.S.C. (quoting experi- scene), previous from speaking be granted be that relief cannot argues at subject rest areas being at ence case fall some Dickens’s facts of no cause the the rest areas have testified night, Enmund in the facts between where that, from one rest looking lighting, be always That will in Tison. the facts other, only silhouettes best area the rule afoul runs of a decision true when consistent- Dickens testified can be seen. unreasonably applies court “disap- that a Amaral he watched ly. He said it fails law when federal clearly established just about side my sight out of ] pear[ these actions have and Dickens Enmund distinguish attempt 6. In a further testimony Enmund's There was Enmund, argues that common. majority case from wife to his common-law directed case he evi- of in the destruction participated murders, see guns used in get weapon rid provided to Amar- dence either sup- likely and Enmund al, Maj. Op. at 399 So.2d one. Amaral had or knew that in the weapons used one plied at least did not reach Id. facts, crime. does show but the record these clearly to extend a legal princi- established active participation in murder and reckless ple to a way new in a context indifference to human life made them the Williams, epitomes of the objectively exception to unreasonable. the rule murder, those who do not attempt U.S. at to mur- S.Ct. 1495. Read togeth- der, or occur, intend that a er, murder should Enmund and Tison reaffirm that the spared penalty. death penalty death is to be reserved for the very culpable most offenders. Where the A getaway driver robbery, armed facts do killed, not show that a defendant Dickens is entitled to habeas relief because kill, attempted kill, or intended to adjudication Court’s requires showing Constitution major penalty death claim was an unrea- participation application criminal activities sonable clearly known to established carry law as grave risk articulated of death and reckless United States Supreme Court, 2254(d)(1), § disregard for 28 U.S.C. human life. Allowing the and because it rested on at death least two penalty imposed to be un- on a getaway reasonable determinations of fact in light driver in a planned armed robbery —even of the evidence presented in the state getaway driver later who witnessed the 2254(d)(2). proceeding, 28 U.S.C. destruction of evidence—is an unreason- able application of clearly established fed- II. The Martinez Issue eral law. argues Petitioner that post-conviction Court’s decision counsel was ineffective failing argue upon also rests objectively unreasonable the ineffectiveness of his sentencing coun findings of fact. The trial special court’s — sel. Before Martinez v. Ryan, U.S. verdict makes no mention of walkie-talkies -, 1309, 132 S.Ct. 182 L.Ed.2d 272 or the “no witnesses” comment. The find- (2012), that claim was barred. After con ing in the Arizona Supreme Court’s death ducting a lengthy, pr e-Martinez evidentia- eligibility determination —that Dickens ry hearing, the district court found that “failed to render knowing aid that one the additional allegations factual contained might victim not be by dead”—was made in the four volumes of exhibits filed with court, the Arizona trial but it utterly Dickens’s federal petition: habeas unsupported. As explained, there was no “materially strengthen the claim pre- competent evidence that Dickens drove sented to the state “pres- courts” and through area, and, the rest therefore, no ] this claim in a significantly differ- ente basis for the court’s speculation that Dick- ent stronger posture than it had in ens Bryan knew may Bernstein have sur- state court fundamentally alters the

vived the shooting. claim considered the state courts.” The Supreme that, Court has observed The district court unequivocal used lan- punishes death, “[w]hen the law it risks guage: footnote 9 of its December 2004 its own sudden brutality, descent into ruling states that the court “summarily transgressing the constitutional commit- rejects argument Petitioner’s that the ad- ment to decency and restraint.” Kennedy, ditional factual allegations in support of 420, 554 U.S. at 128 S.Ct. 2641. The ma- habeas Claim 19 fairly presented were jority’s read of Enmund is so narrow exhausted court rejects that the likely would Arizona Supreme forbid Court’s indepen- habeas relief to Earl dent review Enmund these allegations.” himself. exhausted majority finds Dickens’s actions comparable to those of Martinez Because permits petitioners brothers, the Tison yet the Tison brothers’ argue the post-conviction ineffectiveness of counsel, the district because ev- previously unconsidered that the

found the ineffective fundamentally alters idence case, I claim this of counsel assistance must majority that this case agree with initial court for to the district remanded pro- the claim that counsel consideration assistance. vided ineffective

III. Conclusion majori from dissent respectfully

I Florida, analysis of Enmund ty’s 73 L.Ed.2d 102 S.Ct. Arizona, and Tison (1987). L.Ed.2d 127 grant I explained, would For the reasons ar petitioner’s reach decline to relief and — U.S. Ryan, Martinez v. gument under -, 182 L.Ed.2d (2012). Nevertheless, majori because join I issue, the Martinez ty does reach the district court’s to vacate judgment its whether cause existed ruling regarding Dick default of procedural overcome of sen of ineffective assistance ens’s claim counsel, the dis and to remand ‍​‌‌‌​​​‌‌​‌‌‌​‌​​​‌‌‌‌​‌‌‌​​​​​​​‌‌‌​‌​‌‌‌‌‌‌​​​‍tencing light of to consider the issue in trict court Martinez. America,

UNITED STATES Plaintiff-Appellee, SHILL, Randy Lee Defendant- Appellant. No. 13-30008. Appeals, States Court United Ninth Circuit. Dec. and Submitted Argued 24, 2014. Filed Jan.

Case Details

Case Name: Gregory Dickens v. Charles L. Ryan

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 23, 2014

Citation: 740 F.3d 1302

Docket Number: 08-99017

Court Abbreviation: 9th Cir.