OPINION
Riсhard Dale Stokley was sentenced to death for the murder of two thirteen-year-old girls. Stokley challenges that sentence under 28 U.S.C. § 2254, arguing that he should receive an evidentiary hearing to develop the claim that his trial counsel provided ineffective assistance at sentencing by failing adequately to investigate and present evidence that Stokley suffered from organic brain damage at the time of the murders. Although trial counsel’s actions may seem imperfect in hindsight, counsel undertook an extensive investigation into Stokley’s mental health, arranged for him to be evaluated by a neuropsychologist, and presented testimony from a psychologist and a neurologist. Under the demanding standard of
Strickland v. Washington,
Background
On July 7, 1991, Stokley was in Elfrida, Arizona, working as a stuntman in Independence Day celebrations. According to Stokley, he asked Randy Brazeal to drive him to a location where Stokley could bathe. On the way there, they picked up Mandy and Mary, two thirteen-year-old girls Brazeal had met earlier that evening. Stokley and Brazeal raped, beat, and strangled the girls and dumped their bodies down an abandoned mine shaft.
The next day, Brazeal turned himself in to the police, and Stokley was arrested in a nearby town. Stokley confessed his involvement in the crimes, admitting that he raped one of the girls, choked her to dеath, and stabbed both victims with his knife. Brazeal pled guilty to second-degree murder and was sentenced to twenty years in prison. Stokley proceeded to trial. A jury convicted him of two counts of first degree murder, one count of sexual conduct with a minor, and two counts of kidnaping.
The state sought the death penalty. At sentencing, Stokley’s trial counsel endeavored to establish numerous mitigating factors. Among other things, counsel presented evidence that Stokley had a difficult childhood, that he was plagued with a history of substance abuse, that he was intoxicated at the time of the crimes, and that he had the ability to be rehabilitated. Counsel also placed considerable weight on the argument that Stokley’s “capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law,” Ariz.Rev.Stat. § 13-751(G)(1), was impaired by both a personality disorder and head injuries.
*805 Counsel relied on two medical experts to establish that Stokley did not have the capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law at the time of the crime. Dr. Michael Mayron, a neurologist, testified that Stokley “suffered multiple head injuries throughout his life,” including a blow to the frontal area of his brain with a car jack and an incident in which he suffered “a left parietal compound depressed skull fracture with left parietal lobe contusion” after being hit with a beer mug. Mayron believed that these injuries caused moderate or severe brain damage and weakened Stokley’s ability to control his impulses and emotions.
Dr. Larry Morris, a psychologist, testified that in his opinion Stokley “experience[s] difficulties with impulse control and poor judgment” and “tends not to study consequences well but responds impulsively instead.” More specifically, Morris diagnosed Stokley with borderline personality disorder and explained that the impulsivity associated with that condition, especially as exacerbated by stress and alcohol, “make[s] it difficult for [Stokley] to conform his behavior to ... th[e] law.”
In addition, counsel sent Stokley to Dr. John Barbour, who administered at least one neuropsychological test. Barbour’s test supplemented a report prepared by Dr. Huntley Hoffman, who evaluated Stokley shortly before the murders. Hoffman found that Stokley “has ‘superior’ intelligence” and that he did not have brain damage but might suffer from a “mild to moderate deficit” in “short and long term left brain memory.”
Under Arizona’s procedure at the time, the sentencing judge determined the applicable aggravating and mitigating factors. The judge found three aggravating factors — the victims were minors; Stokley committed multiple homicides; and Stokley committed the crimes in an especially heinous, cruel, or depraved manner. The judge determined that no factors substantially weighed in favor of mitigation and that even if all of the mitigating circumstances existed, “balanced against the aggravating circumstances found to еxist, they would not be sufficiently substantial to call for leniency.” Regarding Stokley’s claim of mental incapacity, the court concluded that Stokley’s “capacity to appreciate the wrongfulness of his conduct was not significantly impaired” at the time of the crime. In the sentencing court’s view, “[h]aving suffered head injuries and having difficulty with impulse control shed[ ] little light on [Stokley’s] conduct in this case,” because the evidence “does not show that [Stokley] acted impulsively, only criminally, with evil motive.” The court sentenced Stokley to death.
The Arizona Supreme Court affirmed the death sentence on direct appeal. The court reviewed Stokley’s history of head injuries, the mental health evidence, and the testimony of Mayron and Morris аnd recognized that, in appropriate circumstances, “[h]ead injuries that lead to behavioral disorders may be considered ... mitigating.”
State v. Stokley,
Stokley’s state post-conviction petitions argued, among other things, that trial counsel provided ineffective representation by failing to argue “Stokley’s alleged mental incapacity as mitigation for sentencing purposes.” The state post-conviction relief (“PCR”) court rejected this claim on three grounds. It held that the claim was “precluded ... because the Arizona Supreme Court rejected the factual basis of[the] claim on direct appeal.” The PCR court also denied the claim “for lack of sufficient argument” and as “meritless for lack of a showing of prejudice.” On appeal, the state supreme court summarily denied relief.
Stokley then filed a § 2254 petition in the district court, raising a melange of claims. In an initial ruling, the district court held that many of these claims were either procedurally barred or obviously without merit. It concluded, however, that four claims were both “properly exhausted and appropriate for review on the merits following supplemental briefing.” Stokley conceded that three of these four arguments could not survive review under the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Stokley’s remaining argument was that his trial сounsel “failed to adequately investigate [Stokley’s] mental state at the time of the crime and thereby failed to present compelling mitigation evidence at sentencing.” Stokley sought an evidentiary hearing on this claim.
Stokley introduced the declarations of four medical experts in support of his request for a hearing. A supplemental declaration from Morris said that “additional neuropsychological testing” was needed to pinpoint Stokley’s brain injuries and their behavioral effects, and that he “recommended to Mr. Stokley’s lawyers that [organic deficits] be investigated and that consideration be given to having Mr. Stokley tested by a neuropsychologist.” Mayron also provided a new declaration, which stated that he “d[id] not recall” being “consulted by Mr. Stokley’s attorneys between the time of [his] examination of Mr. Stokley and the [sentencing hearing], and [that] if [counsel] had contacted [Mayron, he] would have recommended that Mr. Stokley be examined by a qualified neuropsychologist.” The other two declarations used neuropsychological testing to diagnose Stokley with organic damage to both his frontal and parietal lobes, asserted that the previously undiscovered frontal lobe injury had severe behavioral effects, and concluded that because of his brain damage, Stokley was not in control of his actions at the time of his crimes.
After considering these declarations, the district court denied Stokley’s request for an evidentiary hearing. The district court declined to decide whether an evidentiary hearing was precluded by 28 U.S.C. § 2254(e)(2), which bars a hearing “[i]f the applicant has failed to develop the factual basis of a claim in State court proceedings” and the claim relies on neither “a new rule of constitutional law” nor “a factual predicate that could not have been previously discovered through the exercise of due diligence.”
See Stokley v. Ryan,
No. CV-98-332,
Regarding the ineffectiveness prong of
Strickland v. Washington,
Following oral argument in this appeal, the Supreme Court decided
Cullen v. Pin-holster,
— U.S.-,
We need not determine whether Pinholster bars the consideration of Stokley’s new evidence, because the result is the same in either case. If Pinholster applies, it directly bars Stokley from receiving the only relief he seeks — a hearing to present new evidence in federal court. And if Stokley is correct that Pinholster does not apply because his federal ineffective assistance claim was never presented to the state courts, relief still evades him. Even assuming both that Stokley can show cause and prejudice for his failure to present the claim to the state courts and that he has satisfied the diligence requirement of § 2254(e)(2), Stokley has not presented a colorable claim of ineffective assistance of counsel. The net result is that Stokley is not entitled to an evidentiary hearing even if we may consider the evidence presented for the first time to the district court.
Analysis
I. The Rule in Pinholster
AEDPA provides that a federal habeas application may be “granted with respect to any claim that was adjudicated on the merits in State court proceedings” if the adjudication of that claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). In
Pinholster,
the Supreme Court held that § 2254(d)(1) “requires an examination of the state-court decision at the time it was made” and on
*808
the same record.
See
Pinkolster also held that this bar on new evidence is coterminous with the scope of § 2254(d). If a petitioner presents a claim that was not adjudicated on the merits by the state courts, federal review is not necessarily limited to the state record. See id. at 1401. Such is the case, for instance, when a petitioner presents a new and different claim in federal court. See id. at 1401 n. 10. In that situation, “the discretion of federal habeas courts to consider new evidence,” id. at 1401, is instead cabined by the requirement in § 2254(e)(2) that the petitioner must have attempted “to develop the factual basis of [the] claim in State court.”
The Court in
Pinkolster
left at least two questions unresolved. The Court expressly reserved the issue of “where to draw the line between new claims and claims adjudicated on the merits” by the state courts.
Pinkolster,
These unresolved issues are potentially pertinent to our resolution of this case. In his opening brief, Stokley assumed that his ineffective assistance claim had been fairly presented to the state court even though “[n]one of the facts presented in support of the claim were presented in state court.” Indeed, in the district court, Stokley affirmatively argued that his claim was exhausted, and the state agreed. Stokley also posited that he satisfied the requirements of § 2254(e)(2) and therefore should be permitted to supplement the record.
After
Pinkolster,
we requested supplemental briefing. Not surprisingly, Stokley shifted his position and now argues that his federal petition presented a new claim that had nоt yet been adjudicated, such that he remains entitled to an evidentiary hearing. Stokley relies on
pr^-Pinkolster
cases in which we provided a framework for assessing whether a claim is unexhausted because new evidence fundamentally altered the factual underpinnings of the claim.
See, e.g., Beaty v. Stewart,
We decline to reach this issue or to decide the antecedent question of whether
Pinkolster
impliedly overruled our line of cases interpreting the “fundamentally altered” standard. We do so because Stokley is not entitled to relief if
Pinkolster
applies, and he is similarly not entitled to relief even if we construe his federal claim as unexhausted such that we may consider the supplemental evidence he offered to the district court.
1
In addition, although
*809
evidentiary hearings were rare even before
Pinholster,
the circuits had been essentially uniform in holding that in the appropriate case new evidence from such a hearing could be considered in determining whether a claim could survive review under § 2254(d).
See Pinholster,
II. Ip Pinholster Applies: Review Restricted to the State Record
In this section, we assume that Stokley’s state petition exhausted thе sentencing-phase ineffective assistance claim in his federal petition, because the essence of the claim — that counsel provided ineffective assistance at sentencing by failing adequately to investigate and argue Stokley’s mental health as a mitigating factor— remains the same.
Pinholster
therefore applies, with two consequences. Our review is confined to the record before the state courts.
Pinholster,
III. If Pinholster Does Not Apply: Review op All the Evidence
We now proceed on the alternate assumption that Pinholster does not bar Stokley from presenting new evidence because Stokley’s federal ineffective assistance of counsel claim was never presented to the state courts. Even considering the new evidence, we conclude that Stokley has not presented a colorable claim of ineffective assistance of counsel. Because this conclusion bars Stokley from receiving an evidentiary hearing, we only briefly acknowledge — and do not decide — the predicate hurdles Stokley would need to overcome for us to consider his claim, namely whether he could show cause and prejudice for his failure to exhaust and whether he satisfied the diligence requirement of § 2254(e)(2).
A. Further Procedural Matters
When a petitioner fails to present a federal claim to the state courts, the claim is unexhausted, and the petitioner must generally return to state court.
See, e.g., Quezada v. Scribner,
Because Stokley’s claim would be procedurally barred, he would satisfy “the technical requirements for exhaustion; there are no state remedies any longer ‘available’ to him.”
Coleman,
Stokley argues that the actions of the state and his post-conviction counsel allow him to surmount both of these barriers, and we recognize that, at a minimum, Stokley was placed in an untenable and unenviable situation during the state post-conviction proceedings. Harriette Levitt, Stokley’s appointed counsel, filed a cursory PCR petition with the state courts. After Stokley filed complaints against Levitt, Levitt withdrew from the case, and Stokley secured the representation of Carla Ryan, who sought to file a more extensive petition on Stokley’s behalf. At the state’s urging, however, thе PCR court reconsidered its order allowing Levitt to withdraw and reappointed her to represent Stokley for the remainder of the post-conviction proceedings. Shortly after her reappointment, Levitt filed a brief arguing that all of the issues raised by Ryan lacked merit. Upon further reflection and at the express invitation of the state supreme court, Levitt reconsidered in part and filed a supplemental petition including the claim of ineffective assistance of counsel at sentencing initially advanced by Ryan. The supplemental petition was as vague as Levitt’s initial petition, and it failed to comply with Arizona Rule of Criminal Procedure 32.5, which requires petitioners to submit “[a]ffidavits, records, or other evidence сurrently available to the defendant” in support of claims to post-conviction relief.
We also recognize, however, that there is “no constitutional right to an attorney in state post-conviction proceedings.”
Coleman,
B. The Strickland Standard
Proceeding on those assumptions, we review Stokley’s request for a hearing. We may overturn the district court’s “ultimate denial of an evidentiary hearing” only if that denial constituted an abuse of discretion.
Earp v. Ornoski,
To receive an evidentiary hearing, Stokley must show that he has “a colorable claim of ineffective assistance.”
Fairbank v. Ayers,
Because Stokley’s claim is premised on the alleged ineffective assistance of counsel, he must satisfy the two-pronged test in
Strickland.
Specifically, Stokley must present a colorable claim “that (1) ‘counsel’s representation fell below an objective standard of reasonableness’ and (2) there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ”
West,
C. Ineffective Assistance
In assеssing counsel’s performance, we “must apply a strong presumption that counsel’s representation was within the wide range of reasonable professional assistance.”
Harrington,
Stokley’s trial counsel undertook an extensive investigation into mitigating factors before sentencing. Most significant to this appeal, counsel secured two medical opinions regarding Stokley’s mental health. Morris examined Stokley at counsel’s request and diagnosed him with borderline personality disorder. That disorder, Morris told the sentencing court, means that Stokley has “difficulties with impulse control and poor judgment.” Morris characterized these difficulties as “severe” and stated that Stokley’s borderline personality disorder would lead to “impulsivity” and “outbursts” of anger. He also expressly tied Stokley’s impulse control problems to Arizona’s mitigation statute by testifying that Stokley was impaired in his “capacity to appreciate the wrongfulness of his conduct ... at the time of the[crime].”
Mayron’s neurological examination, meanwhile, demonstrated that Stokley’s brain was “moderately to severely impaired” as a result of numerous head injuries. Mayron diagnosed Stokley with “a permanent mild right hemiparesis 6 and hemisensory deficit” as well as “permanent post-concussion syndrome memory impairment and disturbance [characterized by] increased difficulty with impulse control.” As this diagnosis suggests, Mayron opined that “[h]ead injuries of [the] severity [of Stokley’s] are invariably related to” problems with “concentration, attention span ..., memory, personality disturbance, mood disturbance, irritability, depression, [and] impulse control disturbance.” Stokley’s “ability to make good judgments,” his “[e]motional control,” and his “ability to plan ahead and to reflect” are all impaired.
Counsеl also knew that at least two neuropsychological tests had been performed on Stokley at the time of sentencing. Barbour administered one such test at counsel’s behest. Hoffman’s report based on his pre-crime examination of Stokley, meanwhile, found that Stokley’s performance on a neuropsychological test “d[id] not indicate [organic] brain damage.”
This record compels the conclusion that counsel generally undertook “active and capable advocacy” on Stokley’s behalf.
Harrington,
Stokley nevertheless claims that, despite counsel’s emphasis on his mental health, counsel was required to order an entire battery of neuropsychological tests. We reject this argument. Counsel had no reason to believe that step would be necessary. After examining Stokley, Morris did suggest that Stokley be seen by either a neurologist or a neuropsychologist, and counsel took that advice by sending Stokley to Mayron, a neurologist. Mayron later provided the mirror-image observation that analysis of “[bjehavioral changes” occurs “by referral to a psychologist or a neuropsychologist.” Although that piece of advice was tendered at the sentencing hearing, counsel had already followed it, too, by having Morris, a psycholоgist, examine Stokley. In short, neither of the experts counsel hired unequivocally stated that Stokley should be examined by a neuropsychologist — and counsel was under no obligation to seek neuropsychological testing in the absence of any such recommendation.
See Babbitt v. Calderon,
In fact, it is not even clear that further neuropsychological testing would have been to Stokley’s advantage. Hoffman’s report said that a previous neuropsychological examination revealed no brain damage. 8 Counsel was therefоre in a position reasonably to conclude that additional neuropsychological testing could undermine Stokley’s case rather than aid it.
Stokley also argues that, without neuropsychological testing, counsel was unable to demonstrate the link between Stokley’s brain injuries and his behavior at the time of the offense. But Mayron’s report and testimony at sentencing expressly linked the two; Mayron stated that impulsivity “invariably” followed from the sort of brain injury that he diagnosed. Thus, although Stokley cites our decision in Caro v. Wood-ford, 280 F.3d 1247, 1258 (9th Cir.2002), for the proposition that evidence that “ex-plaints] the effects [of] physiological defects” on a petitioner’s behavior is crucial, counsel put precisely that kind of evidence before the sentencing сourt. 9 For that *814 reason, and because counsel could have reasonably believed that additional neuropsychological testing was neither necessary nor advantageous, we hold that counsel’s failure to seek süch testing did not constitute ineffective assistance.
Stokley’s contention that counsel acted ineffectively by failing to follow up with Mayron is similarly unpersuasive. Mayron now claims that, had he been consulted by counsel after his examination of Stokley and before the sentencing hearing, he “would have recommended that Mr. Stokley be examined by a qualified neuropsychologist.” This statement contradicts Mayron’s testimony at sentencing that either a psychologist
or
a neuropsychologist would suffice. More importantly, Mayron does not allege that he actually made this recommendation to counsel, and previous neuropsychological testing of Stokley led to a report that undermined Stokley’s case by finding no organic brain damage. We are in no position to say that counsel’s failure affirmatively to seek out Mayron’s advice amounted to constitutionally ineffective assistance.
See, e.g., Murtishaw v. Woodford,
In sum, “[t]his is not a case in which the defendant’s attorneys failed to act while potentially powerful mitigating evidence stared them in the face.”
Bobby v. Van Hook,
— U.S.-,
Conclusion
Regardless of whether Pinholster bars consideration of Stokley’s new evidence, Stokley is not entitled to habeas relief. If Pinholster applies, it precludes the only relief Stokley seeks, and even if we may consider the evidence Stokley introduced in the district court, Stokley has failed to present a colorable claim of ineffective assistance of counsel. We accordingly AFFIRM the district court’s denial of relief. 10
Notes
. There is also a third possibility — that
Pin-holster
does not apply because one or both of the PCR court's enunciated procedural holdings constitutes an adequate and independent state bar to relief.
See, e.g., Harris v. Reed,
.
Coleman
also includes an exception for situations in which “failure to consider [defaulted] claims will result in a fundamental miscarriage of justice.”
. Stokley does not argue that his claim rests on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court” or that the evidence he presented to the federal court could not have been discovered during his state proceedings. See 28 U.S.C. § 2254(e)(2)(A)(i)-(ii).
. We note that a case pending before the Supreme Court raises issues regarding cause and рrejudice claims arising from the actions of post-conviction counsel.
See Maples
v.
Thomas,
— U.S. -,
. We also note that the PCR court held that Stokley’s ineffective assistance claim "is meritless for lack of a showing of prejudice.”
. "Hemiparesis” is a medical term used to refer to reduced muscular strength on one side of the body and is frequently associated with damage to the portion of the brain charged with controlling that part of the body.
. While Morris did concede that he was "unable to evaluate” Stokley’s state of mind at *813 the time of the crime, this concession stemmed from Stokley's own statements, not from any failing on counsel’s part.
. Stokley argues that Hoffman misinterpreted the results of the neuropsychological test he administered and that those results were actually, under newer standards, positive for brain damage. But at least one of the experts hired by trial counsel reviewed the Hoffman report without noting any irregularity in Hoffman's conclusions. Hoffman's alleged error thus does not provide a basis for impugning counsel's effectiveness.
See, e.g., Sims v. Brown,
. We note that this passage occurs in
Caro’s
discussion of the
prejudice
prong of
Strickland.
Our
ineffectiveness
holding in
Caro
was premised on counsel's failures "to seek out an expert to assess the damage done by [the] poisoning of Caro's brain,” to provide “mental health experts with information needed to develop an accurate profile of the defendant's mental health,” and to present testimony that
*814
the petitioner was abused as a child constituted ineffective assistance.
See
. We decline Stokley’s request to expand the certificate of appealability to encompass the claim that counsel ineffectively presented a mental state defense at trial. Stokley acknowledges that this precise claim was not included in his state petition. He nonetheless argues that the district court erred by finding the clаim to be unexhausted because it is substantively identical to his sentencing-phase ineffective assistance claim. We cannot agree. Stokley contends in his sentencing-phase claim that counsel should have presented evidence to demonstrate that brain dam
*815
age prevented him from controlling his impulses at the time of the crime. Under Arizona law, however, that type of evidence is inadmissible at trial: “An expert witness may not testify specifically as to whether a defendant was or was not acting reflectively at the time of a killing.”
State v. Christensen,