FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSEPH WELDON SMITH,

Petitioner-Appellant,

v.

RENEE BAKER, Warden; AARON D.

FORD,

*

 Attorney General of the State

of Nevada,

Respondents-Appellees.

No. 14-99003

D.C. No.

2:07-cv-00318-

JCM-CWH

OPINION

Appeal from the United States District Court

for the District of Nevada

James C. Mahan, District Judge, Presiding

Argued and Submitted July 11, 2019

Seattle, Washington

Filed May 21, 2020

Before: N. Randy Smith, Mary H. Murguia, and

Morgan Christen, Circuit Judges.

Opinion by Judge Christen;

Concurrence by Judge N.R. Smith

* Aaron D. Ford is substituted for his predecessor, AdamPaul Laxalt,

as Nevada Attorney General, pursuant to Fed. R. App. P. 43(c)(2).
2 SMITH V. BAKER

SUMMARY**

Habeas Corpus/Death Penalty

The panel affirmed the district court’s judgment

dismissing Joseph Weldon Smith’s habeas corpus petition

challenging his Nevada convictions for three murders and one

attempted murder, and his death sentence for one of the

murders.

The district court issued a certificate of appealability for

Smith’s argument that the procedural default of his

ineffective-of-assistance-of-counsel claim should be excused

pursuant to Martinez v. Ryan, 566 U.S. 1 (2012). The panel

held that Smith did not show that he was prejudiced by the

lack of an evidentiary hearing, and that the district court did

not abuse its discretion by dismissing the Martinez claim

without holding one. Applying Martinez and Strickland v.

Washington, 466 U.S. 668 (1984), the panel held that Smith

satisfied his burden of demonstrating a substantial argument

that the performance of his second penalty-phase counsel was

deficient for failing to investigate mental health mitigation

evidence, but that Smith did not show that he was prejudiced

by counsel’s deficient performance.

The panel certified for appeal Smith’s claim that the death

verdict violated Stromberg v. California, 283 U.S. 359

(1931). The panel held that Smith demonstrated Stromberg

error because it was impossible to tell whether the jury

unanimously found mutilation, which was the sole basis to

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
SMITH V. BAKER 3

support the death verdict after the Nevada Supreme Court

invalidated the trial court’s depravity-of-mind jury

instruction. The panel concluded that the error was harmless

because the invalid instruction did not have a substantial and

injurious effect on the jury’s verdict.

The panel declined to certify Smith’s remaining

uncertified claims.

Concurring, Judge N.R. Smith would affirm the dismissal

of Smith’s ineffective-assistance-of-counsel claim as

procedurally barred on a different ground—that counsel’s

performance during the second penalty-phase hearingwas not

deficient, and that the claim is therefore insubstantial.

COUNSEL

Robert Fitzgerald (argued), David Anthony, Heather Fraley,

and Brad D. Levenson, Assistant Federal Public Defenders;

Rene L. Valladares, Federal Public Defender; Office of the

Federal Public Defender, Las Vegas, Nevada, for PetitionerAppellant.

Jeffrey Morgan Conner (argued), Deputy Assistant Attorney

General; Victor-Hugo Schulze II, Senior Deputy Attorney

General; Heidi Parry Stern, Chief Deputy Attorney General;

Office of the Attorney General, Las Vegas, Nevada; for

Respondents-Appellees.
4 SMITH V. BAKER

OPINION

CHRISTEN, Circuit Judge:

In 1992, a Nevada jury convicted Joseph Weldon Smith

of three counts of first degree murder with use of a deadly

weapon for beating and strangling his wife, Judith Smith, and

his step-daughters, Wendy Jean Cox and Kristy Cox. The

women were killed in a home the Smiths were renting in

Henderson, Nevada. The jury also convicted Smith of

attempting to murder Frank Allen with use of a deadly

weapon. Allen owned the home the Cox family was renting. 

For Wendy’s and Kristy’s murders, Smith was sentenced to

death. For Judith’s murder, he was sentenced to life in prison

without the possibility of parole.

Smith appealed his convictions and sentences. The

Nevada Supreme Court affirmed the convictions, but it

vacated the death sentences and remanded for a new penalty

hearing. See Smith v. State, 881 P.2d 649 (Nev. 1994) (Smith

I). After a second penalty hearing, Smith was again

sentenced to death for Wendy’s and Kristy’s murders. On

appeal, the Nevada Supreme Court vacated the death sentence

for Kristy’s murder and instead imposed a sentence of life

without the possibility of parole, but it affirmed the death

penalty for Wendy’s murder. See Smith v. State, 953 P.2d

264 (Nev. 1998) (Smith II).

Smith filed a pro per habeas petition in state district court,

which was denied, and the Nevada Supreme Court affirmed

that ruling in an unpublished order. Smith then filed a pro

per habeas petition in federal district court. That court

appointed counsel for Smith and stayed the federal

proceedings so Smith could return to state court to exhaust
SMITH V. BAKER 5

certain claims. The state district court denied Smith’s second

state habeas petition on procedural default grounds, and the

Nevada Supreme Court affirmed that decision. Smith then

returned to federal court, where the State’s motion to dismiss

was granted in part and denied in part. The federal district

court later denied the remainder of Smith’s petition but issued

a certificate of appealability for his argument that the

procedural default of his ineffective assistance of counsel

(IAC) claim should be excused pursuant to Martinez v. Ryan,

566 U.S. 1 (2012). Smith appeals the denial of his federal

habeas petition.

We affirm the district court’s judgment dismissing

Smith’s IAC claim as procedurally barred. Although we

conclude that his counsel’s performance at the second

penalty-phase hearing was deficient, Smith has not shown

that he was prejudiced by his counsel’s performance. Smith’s

IAC claim therefore remains procedurally defaulted, and

cannot serve as a basis for federal habeas relief.

Smith also asserts nine uncertified claims on appeal. We

may issue a certificate of appealability when a petitioner

shows “that reasonable jurists could debate whether . . . the

petition should have been resolved in a different manner or

that the issues presented were ‘adequate to deserve

encouragement to proceed further.’” Miller-El v. Cockrell,

537 U.S. 322, 336 (2003) (quoting Slack v. McDaniel,

529 U.S. 473, 484 (2000)). We certify Smith’s eighth claim,

which alleges violation of the rule set out in Stromberg v.

California, 283 U.S. 359 (1931), but we ultimately conclude

that this claim does not entitle Smith to habeas relief because

the Stromberg error was harmless. The remaining uncertified

claims do not raise substantial questions of law. We decline

to certify them because we are not persuaded that “reasonable
6 SMITH V. BAKER

jurists would find the district court’s assessment of the

constitutional claims debatable or wrong.” Miller-El,

537 U.S. at 338 (quoting Slack, 529 U.S. at 484). We

therefore affirm the district court’s order dismissing Smith’s

federal habeas petition.

I. Factual Background

The facts relating to the murders and to Smith’s first trial

and penalty-phase hearing were recounted by the Nevada

Supreme Court in Smith I, as follows:

During the trial Michael Hull, a police officer

for the City of Henderson, testified as follows: 

On Saturday, October 6, 1990, at

approximately 2:29 a.m., he was dispatched to

the Fountains, a gated community in

Henderson. While on his way, Hull was

flagged down by a man who subsequently

identified himself as Frank Allen. Allen

appeared frantic and Hull observed blood on

his shirt and blood running down the left side

of his head. Allen told Hull that Smith had

attacked him with a hammer or a hatchet.

After arriving at the Smiths’ home, located at

2205 Versailles Court inside the gated

community, Hull and two other officers

observed a large broken window lying on the

front porch outside the house. Allen had

explained to the officers that he had left

through that window. The officers entered the

premises and, during a search of a bedroom,

observed what appeared to be a figure beneath
SMITH V. BAKER 7

a blanket. After lifting the blanket, they

discovered a dead body, subsequently

identified as twelve-year-old Kristy Cox. In

an adjacent bedroom they discovered a second

body, also dead and covered with a blanket,

later identified as twenty-year-old Wendy

Cox. Under a blanket in the master bed, the

officers found a third victim, Kristy and

Wendy’s mother and Smith’s wife, Judith.

The officers also located some notes written

by Smith. The first, found inside a briefcase

in the upstairs den, and dated October 5, 1990,

read:

A triple murder was committed here this

morning. My wife, Judith Smith and my

two stepdaughters, WendyCox and Kristy

Cox, were assassinated. I know who did

it. I know who sent them. I had been

warned that this would happen if I did not

pay a large sum of money to certain

people. I have been owing it for a long

time and simply could not come up with

it. And I didn’t believe the threat. I don’t

need any help from the police in this

matter. I will take care of it myself. They

will have to kill me, too. When and if you

find me, I’m sure I will be dead, but that’s

okay. I already killed one of the

murderers. And I am going to get the

others and the man who I know sent them. 

There were three in all. You will
8 SMITH V. BAKER

probably find my body within a day or

two.

Thank you, Joe Smith.

P.S.: I thought I had gotten away when

we moved here, but it didn’t work. When

we moved, we were being watched. If I

am successful in my task at hand, I will

turn myself into (sic) the police.

The second letter stated, “Frank [Allen], look

in the locked room upstairs for your package. 

The key is on the wet bar. Joe.” Dr. Giles

Sheldon Green, Chief Medical Examiner for

Clark County, testified that he performed the

autopsies on the bodies of the three victims. 

Green stated that all three victims died from

asphyxia due to manual strangulation. He

also opined that the pattern of injuries found

on the three victims could have been inflicted

with a carpenter’s hammer. On Kristy, Green

observed three blunt lacerations to the scalp

and a lot of blood in Kristy’s hair, some

bruising and a scratch on her neck, and

substantial hemorrhaging as a result of the

trauma to her scalp.

On Wendy, Green observed several “quite

ragged, irregular, deep lacerations of the

forehead,” and at least six or seven wounds of

the face. There were a total of thirty-two head

lacerations, some of which were patterned

injuries of pairs of penetrating wounds of the
SMITH V. BAKER 9

scalp tissue. On the left side of Wendy’s

head, a large laceration inside the ear almost

cut the outer ear in two. Green found

numerous scratches and abrasions on the front

of Wendy’s neck, as well as defensive

wounds, such as a fractured finger, bruises on

the backs of her hands and a finger with the

skin over the knuckle knocked away. Green

found areas in which the various head impacts

had created depressed fractures of the outer

and inner surfaces of the skull. There was

also a great deal of hemorrhaging and damage

to the soft tissues of Wendy’s neck.

On Judith, Green found lacerations of the

forehead and above her right eyebrow,

abrasions and scratches on the front of her

neck and a cluster of at least five lacerations

of the scalp, mainly on the right side of the

back of the head. It was Green’s opinion that

the five lacerations were inflicted after death.

Allen testified as follows: He met Smith in

September 1990, when Smith came to Allen’s

home located at 2205 Versailles Court, inside

the Fountains, wishing to purchase that home. 

Although Allen first indicated that the house

was not for sale, after Smith agreed to pay

$50,000 over the appraised value of $650,000,

Allen agreed to sell him the house. Allen

subsequently gave Smith the keys to the

house, but retained one of the bedrooms for

his use when he came to Las Vegas on

weekends, until the sale was final. Smith
10 SMITH V. BAKER

informed Allen that he was in a rush to move

into the house because he wanted to make

preparations for his step-daughter, Wendy’s,

wedding in November.

On September 21, 1990, Smith gave Allen a

personal check for $35,000 as a good faith

deposit. Approximately six days later, the

bank notified Allen that the check had been

returned because Smith had closed his

account. Smith assured Allen that he would

mail him a certified check immediately. Two

days later, having not received a check, Allen

indicated to Smith that he would be coming to

Las Vegas on Friday, October 5, 1990, and

would pick up the check then.

On Fridaymorning, Allen received a call from

Smith who stated, “I thought you were

coming up here this morning.” Allen told

Smith that he would be coming later in the

day. Smith stated that he and his wife were

going to California to shop for furniture that

day, so they arranged for Smith to leave two

checks, the $35,000 deposit check and a

$3,338.80 check for the October mortgage

payment, behind the wet bar in the house,

along with Allen’s mail.

Allen arrived at the house between 1:00 a.m.

and 1:30 a.m. on Saturday, October 6, 1990,

and noticed that the security system was off. 

He went behind the wet bar to retrieve his

mail and found the note from Smith telling
SMITH V. BAKER 11

him to look in the locked room upstairs for the

package. Allen went to that room and, not

finding any checks, went into the game room. 

Although the light was not on in the game

room, the area was illuminated by a large

chandelier in the hallway.

In the game room, Allen saw Smith crouched

in the closet. Smith then jumped out and

began to pound Allen in the head with an

object, which Allen assumed was a hammer. 

Allen asked Smith what he was trying to do,

but Smith did not say anything. Realizing that

Smith was trying to kill him, Allen said,

“You’re not going to get away with this,” and

pushed Smith backward and ran down the

stairwaywith Smith pursuing him. Allen tried

to figure out the best way to get out of the

house, and after realizing that he had locked

himself in, ran straight through the full-length,

leaded-glass front door. He then got into his

car and drove to the guard shack at the

entrance to the development and asked the

guard to call the police.

Eric Lau, the security guard then on duty at

the guard-gated entrance to the Fountains,

testified that at approximately 2:30 a.m. on

Saturday, October 6, 1990, Allen ran up to the

side of the guard house and pounded on the

window. Allen’s shirt was covered with

blood and he said, “He’s after me! He’s after

me!” Lau immediately called for help and
12 SMITH V. BAKER

then saw Smith’s Lincoln automobile exit the

Fountains, with Smith behind the wheel.

Yolanda Cook, Judith’s daughter-in-law,

testified that on the morning of Friday,

October 5, 1990, at 8:00 a.m., she called the

Smiths’ house to see if someone could take

her son to school. She spoke with Smith, who

told her that he had to go to a meeting and that

Judith, Wendy and Kristy had gone shopping

for Wendy’s wedding. Between 9:00 a.m. and

3:30 p.m., Yolanda called the Smiths’ house

three more times, and each time Smith told

her that Judith and her daughters were away.

Yolanda further testified that on Saturday,

October 6, 1990, at approximately 5:00 a.m.,

Smith called her and told her of the three

murders. He told her that Allen came into the

house and bludgeoned them to death. Smith

requested that she tell all of Judith’s other

children and then go to the house and get the

letters out of his briefcase explaining what

happened. He then told her that he was going

to kill himself and hung up the phone.

William Lawrence Cook, one ofJudith’s sons,

testified that Smith had expressed concern and

irritation over financial obligations such as

Wendy’s pending wedding and the new

house. William testified that Smith would

often refer to himself as the “Lone Wolf” and

say, “I gotta get outta here.” Sometimes

Smith would say that he just wanted to go
SMITH V. BAKER 13

away and live on an island somewhere

“around no kind of family or nothing like

that.” William also remembered Smith telling

him that “the worse thing to f___ up a man

was to have a family.” Smith made these

statements during a collection of

conversations over a period of years.

Smith took the stand on his own behalf and

testified as follows: In 1986 he encountered

financial difficulties and agreed to accept a

drug dealing opportunity in Los Angeles with

an organization. That same year, Smith

moved to Las Vegas and continued working

for the organization. At some point, the

organization falsely accused Smith of stealing

cocaine and told Smith that he now owed the

organization a big debt. Smith quit working

for the organization and in 1989 Gino, a man

from the organization, found Smith and

reminded him of the debt, saying that “it had

to be paid or else they were going to give

[him] a fate worse than death.”

He resumed working for the organization, and

also began to look for a new house in a gated

community. He found the house at the

Fountains and arranged payment terms with

Allen, which included giving Allen eleven

kilograms of cocaine in exchange for the

equity in the house. The eleven kilograms

were part of a twenty kilogram shipment

which Smith had received from the

organization and had decided to keep for
14 SMITH V. BAKER

himself. Smith gave Allen ten kilograms of

cocaine, worth approximately $200,000, on

the same day that he gave Allen the $35,000

check. He claimed that Allen knew that the

check was no good and served only to make

the transaction seem legitimate, and said he

would not deposit it.

On Thursday, October 4, 1990, Smith left the

additional kilogram of cocaine owed Allen in

Allen’s bathroom sink, upstairs where Allen

stayed when he was in town for weekends. 

That same day, Smith told the organization

that he had sold twenty kilograms of cocaine

and was keeping the money because he was

“tired of working for peanuts.”

Between 2:00 a.m. and 3:00 a.m. on the

morning of Friday, October 5, while he was in

bed with Judith, he was awakened by a tap on

his toe. He then saw three men standing over

his bed, one of whom picked up a hammer

Smith had been using the previous night and

began slapping it in his hand and asking Smith

where the “stuff” was. Another man, who had

a sawed-off shotgun, forced Smith to go into

the game room and made him lay down and

stay there. Smith subsequently discovered

that his family had been killed.

On Friday, after the murders, he remembered

receiving three phone calls from Yolanda. He

stated that “I brushed her off like I had other

things to do, a meeting I had to attend . . . I
SMITH V. BAKER 15

really needed some time to sort this out.

There was too many loose ends that I didn’t

have answers to.” Smith stated that he did not

go to the police because he would have to tell

them about the drugs and because it looked

like he committed the crime and he knew they

would put him in jail. He stated that he was

also trying to figure out if Allen might have

been involved in the murders and might have

provided the killers with keys to the house.

He called Allen that Friday morning to see if

he could find out from Allen’s voice if Allen

was involved in the murders. After the phone

call, he decided that Allen was not involved.

At approximately 4:00 p.m. on Friday, Smith

took some sleeping pills and lay down on the

game room floor by the closet. Early

Saturday morning, he awoke to the sounds of

someone coming into the game room. He

thought that the killers had returned and began

swinging the hammer at a man. He did not

know it was Allen because it was dark and

Allen did not say anything during the attack.

Six months after the murders, Smith was

arrested in California. When he was arrested,

evidence was seized which indicated that he

was attempting to change his identity. Smith

was charged with three counts of murder with
16 SMITH V. BAKER

use of a deadly weapon and one count of

attempted murder with use of a deadly

weapon.

Id. at 650–53.

II. Procedural History

A. Trial and Direct Appeal

A Nevada jury convicted Smith of three counts of murder

and one count of attempted murder. Smith I, 881 P.2d at 653. 

The State alleged a single statutory aggravator, that the

murders involved “torture [, depravity of mind] or the

mutilation of the victim.” Nev. Rev. Stat. § 200.033(8). The

jury imposed the death penalty for Kristy’s and Wendy’s

murders, life without possibility of parole for Judith’s

murder, and a twenty-year term for the attempted murder of

Frank Allen, enhanced by an additional twenty-year term for

use of a deadly weapon. Smith I, 881 P.2d at 653–54. On

direct appeal, the Nevada Supreme Court vacated the two

death sentences and ordered a new penalty hearing because it

deemed Instruction 10, which instructed the jury on

“depravity of mind,” unconstitutionally vague. The court

reasoned that this Instruction failed to properly channel the

jury’s discretion. See id. at 654–56.

At the second penalty hearing, the State again alleged a

single aggravator pursuant to Nev. Rev. Stat. § 200.033(8)

and the court again used Jury Instruction 10. But the court

also added Instruction 11 to further define “depravity of

mind.” Smith’s counsel moved to dismiss the aggravating

circumstances as to Kristy, arguing there was insufficient

evidence of torture, mutilation, or depravity of mind. Smith
SMITH V. BAKER 17

II, 953 P.2d at 265. The trial court granted the motion in part,

ruling there was insufficient evidence of torture and

mutilation. The court allowed the jury to consider depravity

of mind as to Kristy’s murder, but the jury considered all

three theories of the aggravator for Wendy’s murder. Id. The

special verdict form shows that the second jury found

depravity of mind with respect to Kristy’s murder, and

depravity of mind and mutilation with respect to Wendy’s

murder. Id. The second jury reimposed the death penalty. 

Id.

Smith appealed, and the Nevada Supreme Court again

vacated the death sentence for Kristy’s murder. Id. at 265,

267. The court ruled that the instructions for depravity-ofmind still failed to properly channel the jury’s discretion in

connection with the charges stemming from Kristy’s death. 

Id. at 267. The court imposed a life sentence without the

possibility of parole for Kristy’s murder. Id. As to Wendy’s

murder, the court upheld the death sentence, concluding that

the jury instructions concerning mutilation were

constitutionally sound, and that there was sufficient evidence

from which a reasonable jury could find mutilation beyond a

reasonable doubt. Id. at 267–68.

B. State Post-Conviction Review Proceedings

Smith filed a pro per state habeas petition in August

1998. Several attorneys were sequentially appointed to

represent him—Gary Gowen, David Schieck, Karen

Connolly, Cristina Hinds, and Christopher Oram—during the

first post-conviction proceedings. An amended petition and

two supplements were filed on Smith’s behalf. The state

district court denied Smith’s post-conviction petition in 2005,
18 SMITH V. BAKER

and the Nevada Supreme Court affirmed that decision in

2006.

In 2007, Smith filed a pro per habeas petition pursuant to

28 U.S.C. § 2254 in federal court. An attorney appointed to

represent Smith filed an amended petition several months

later. The federal district court stayed the proceedings so

Smith could return to state court to exhaust additional claims. 

Back in state court, Smith’s amended habeas petition was

denied, and the Nevada Supreme Court affirmed that decision

in 2010.

Smith then resumed pursuit of his federal claims. The

district court denied his habeas petition in March 2014, but

subsequently granted a Certificate of Appealability for Claim

4 (ineffective assistance by penalty-phase counsel for failing

to investigate and present mitigation evidence of Smith’s

mental health). Smith timely filed a notice of appeal.

III. Standard of Review

We review de novo the district court’s order denying

Smith’s federal habeas petition. Rodney v. Filson, 916 F.3d

1254, 1258 (9th Cir. 2019). Pursuant to the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA), we may grant

habeas relief on a claim adjudicated on the merits in state

court only if the state court decision “was contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the

United States,” or if the decision “was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(1), (2). “[A]ny federally reviewable claims that

were not adjudicated on the merits in state court are reviewed
SMITH V. BAKER 19

de novo.” Rodney, 916 F.3d at 1258 (citing Runningeagle v.

Ryan, 825 F.3d 970, 978 (9th Cir. 2016)).

IV. Discussion

A. Claim 4—Martinez

Smith’s federal habeas petition asserts that his second

penalty-phase lawyers were ineffective for failing to

investigate, develop, or present mitigation evidence during

the second penalty phase. Smith exhausted this claim in state

court, but the Nevada Supreme Court concluded that it had

been procedurally defaulted. The claim was first presented in

Smith’s second habeas petition and the state supreme court

ruled it was untimely pursuant to Nev. Rev. Stat. § 34.726(1),

and successive pursuant to Nev. Rev. Stat. § 34.810(2). 

Smith’s federal petition argued that the procedural default of

this claim should be excused pursuant to the test set forth in

Martinez, 566 U.S. at 10–17.

Martinez allows the procedural default of a claim to be

excused under specific circumstances. Id. at 17. To show

cause for excusing a procedural default, Martinez requires

that a petitioner show that the state system in which he

initially brought his IAC claim required that the claim be

raised in initial-review collateral proceedings, and that the

state did not permit the petitioner to raise the claim on direct

appeal. Runningeagle, 825 F.3d at 973. A petitioner must

further show that the attorney who represented him in state

post-conviction proceedings performed deficiently and

thereby prejudiced his case under the standard set out in

Strickland v. Washington, 466 U.S. 668 (1984). 

Runningeagle, 825 F.3d at 973.
20 SMITH V. BAKER

In support of his federal petition, Smith argued that his

lawyers at the first state post-conviction review proceeding

were ineffective because they failed to raise an IAC-by-trialcounsel claim. Smith highlighted numerous facts available to

trial counsel that he considered to be evidence of mental

illness and argued that his penalty-phase counsel should have

raised evidence of mental illness in mitigation. Among other

things, Smith contended that his counsel should have argued

that he engaged in numerous fraudulent real estate deals over

the years leading up to the murders, that he had an outburst

during his guilt phase testimony where he threw newspaper

articles at the jury, and that he had insisted on testifying at the

trial even though his explanation of the circumstances

surrounding the murders was obviously implausible.

Smith’s counsel retained two mental health experts and

submitted their declarations in support of his federal petition. 

One expert opined that Smith exhibited a “delusional disorder

of the grandiose type” since early adulthood. This expert

opined that individuals with delusional disorder “cannot

escape their delusions or acting on the delusions,” and that

the letter Smith left at the crime scene indicating that

intruders murdered his wife and step-daughters was evidence

of this, as was Smith’s persistence in relating his version of

events to the jury despite his intelligence and despite the

patent unbelievability of his story. The other expert’s

declaration agreed that Smith suffers from grandiose

delusions, and observed, “Smith suffers from clinically

significant psychiatric difficulties . . . far predat[ing] the

above described crimes for which he has been convicted and

sentenced[,] and [] these psychiatric difficulties have had and

continue to have a significant impact on Mr. Smith’s ability

to function in important areas of his life.” This expert

explained that Smith’s behavior “reflect[s] mental health
SMITH V. BAKER 21

problems and distorted thinking,” and that when the expert

met with Smith, he “evidence[d] specific paranoid and

grandiose delusions.” Smith submitted to psychometric

testing for a pre-guilt phase competency interview in 1992,

and that evaluation was filed in support of his federal habeas

petition. The competency assessment concluded that Smith

was competent to stand trial and that Smith did not suffer

from any acute or Axis I mental disorders, although it noted

that he suffered from a mixed personality disorder and

displayed antisocial behavior, grandiosity, and histrionic

features during the competency interview.

The federal district court considered this evidence and

discussed it in an order concluding that Smith’s IAC claim

was procedurally barred by Nev. Rev. Stat. § 34.726,

Nevada’s timeliness rule, because Smith did not assert this

claim until he returned to state court to file his exhaustion

petition. The district court also determined that Smith failed

to show that habeas counsel provided ineffective assistance

for purposes of satisfying the cause and prejudice components

of Martinez because, even considering the new evidence

relating to Smith’s mental health, Smith did not show a

reasonable probability that there would have been a more

favorable outcome at the penalty phase of his trial.

On appeal, Smith argues that the record establishes cause

and prejudice to excuse the procedural default of this IAC

claim, and further argues that the district court erred by

failing to grant an evidentiary hearing before denying it. “A

claim is procedurally defaulted if it was rejected by the state

courts based on ‘independent’ and ‘adequate’ state procedural

grounds.” Rodney, 916 F.3d at 1259 (citing Coleman v.

Thompson, 501 U.S. 722, 729–32 (1991)). Because the

Nevada Supreme Court rejected Claim Four as untimely and
22 SMITH V. BAKER

successive pursuant to state law, we may not review it unless

Smith demonstrates cause to excuse the default and actual

prejudice resulting from a violation of federal law. See id. 

Specifically, Smith must show:

(1) the claim of “ineffective assistance of trial

counsel” was a “substantial” claim; (2) the

“cause” consisted of there being “no counsel”

or only “ineffective” counsel during the

state collateral review proceeding; (3) the

state collateral review proceeding was

the “initial” review proceeding in respect to

the “ineffective-assistance-of-trial-counsel

claim”; and (4) state law requires that an

“ineffective assistance of trial counsel [claim]

. . . be raised in an initial-review collateral

proceeding.

Trevino v. Thaler, 569 U.S. 413, 423 (2013) (emphasis

omitted) (quoting Martinez, 566 U.S. at 12–22).

We first address Smith’s contention that he was entitled

to an evidentiary hearing. See Tapia v. Roe, 189 F.3d 1052,

1058 (9th Cir. 1999) (reviewing a district court’s refusal to

hold an evidentiary hearing for abuse of discretion). Smith

must allege a colorable claim for relief on his IAC claim in

order to obtain a remand for an evidentiary hearing. West v.

Ryan, 608 F.3d 477, 485 (9th Cir. 2010). The district court

allowed Smith to submit the mental health declarations his

lawyers obtained in 2007 and the court explicitly considered

this extra-record evidence in its order dismissing Smith’s

Martinez claim.1

1 Cf. Cullen v. Pinholster, 563 U.S. 170, 181–82 (2011).
SMITH V. BAKER 23

Smith fails to demonstrate what additional factual

development would be possible at an evidentiary hearing. He

argues that his experts would be allowed to further explain

their opinions at a hearing, but they would also be subject to

cross examination. Neither of his experts had an opportunity

to conduct testing and only one of them interviewed Smith. 

If an evidentiary hearing were held, the State would be

permitted to cross-examine Smith’s experts and introduce

expert testimony of its own. Accordingly, we conclude that

Smith has not shown that he was prejudiced by the lack of an

evidentiary hearing, and the district court did not abuse its

discretion by dismissing the Martinez claim without holding

one.

Turning to Martinez Step One, Smith must demonstrate

that his “underlying ineffective-assistance-of-trial-counsel

claim is a substantial one, which is to say that the prisoner

must demonstrate that the claim has some merit.” Martinez,

566 U.S. at 14. Smith argues that the claim his penalty-phase

lawyers were ineffective is “substantial” because trial counsel

failed to investigate or present information regarding his

history of mental illness. Smith asserts that his lawyers’

penalty-phase investigation consisted solely of interviewing

a few family members on the day they were scheduled to

testify and presenting brief testimony regarding Smith’s good

character. He contends that no effort was taken to investigate

mental health issues, and that testimony from mental health

experts would have explained his actions. Because no

alternate defense theory was aggressively pursued, Smith

argues that the failure to provide any explanation for the

crimes gave the jury no reason to impose a life sentence.

The State responds that introducing Smith’s experts’

declarations at the penalty phase would have been tantamount
24 SMITH V. BAKER

to ineffective assistance of counsel because it would have

painted Smith as a con man and torpedoed his defense. In the

State’s view, the 1992 competency assessment was “both

broad and deep.” It was also the only evaluation that

included psychometric testing. The State acknowledges the

competency assessment showed elevated scales for antisocial

behavior and grandiosity with manic tendencies, but stresses

that the competency assessment concluded Smith exhibited

no acute or Axis I mental disorders and had no serious

cognitive or affective psychological disorder. In short, the

State argues that Smith was not prejudiced by the failure to

present other mental health evidence.

The standard for showing a claim is “substantial” is

comparable to the standard for granting a certificate of

appealability pursuant to 28 U.S.C. § 2253(c)(2); a petitioner

“need show only that ‘jurists of reason could disagree with

the district court’s resolution of his constitutional claims

. . . .’” Runningeagle, 825 F.3d at 983 n.14 (quoting MillerEl, 537 U.S. at 327). Proving the merits of an IAC claim

requires showing that: (1) “counsel’s representation fell

below an objective standard of reasonableness . . . under

prevailing professional norms”; and (2) “there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Rodney,

916 F.3d at 1260 (quoting Strickland, 466 U.S. at 688, 694).

1. Strickland Prong One

With respect to the first Strickland prong, deficient

performance is performance that falls “below an objective

standard of reasonableness” and is outside of “the range of

competence demanded of attorneys in criminal cases.” 

Strickland, 466 U.S. at 687–88 (quoting McMann v.
SMITH V. BAKER 25

Richardson, 397 U.S. 759, 771 (1970)). The objective

measure of counsel’s performance is determined by looking

at the “reasonableness under prevailing professional norms.” 

Id. at 688. Professional norms are measured at the time of

counsel’s actions rather than by reference to modern norms. 

See Cullen v. Pinholster, 563 U.S. 170, 196 (2011). This

assessment is made “from counsel’s perspective at the time,”

so as “to eliminate the distorting effects of hindsight.” 

Strickland, 466 U.S. at 689. We “defer to a lawyer’s strategic

trial choices, [but] those choices must have been made after

counsel [ ] conducted reasonable investigations or [made] a

reasonable decision that ma[de] particular investigations

unnecessary.” Summerlin v. Schriro, 427 F.3d 623, 630 (9th

Cir. 2005) (quoting Strickland, 466 U.S. at 691).

During the April 1996 second penalty hearing, counsel

based Smith’s sentencing argument on character evidence

very similar to the evidence presented at the first trial, and did

not arrange or request a mental health evaluation of Smith. 

Smith’s first-chair counsel at the second penalty hearing,

Donald York Evans, acknowledged in a 2007 declaration

filed with Smith’s federal habeas petition that Smith was “an

interesting case, psychologically,” and that when he first met

Smith, Evans “wanted to do a complete psychological workup on him.” Evans admitted that he “did not press the issue”

because Smith declined to submit to testing and Evans

“wasn’t confident that [he] would get anything [he] could use

from an evaluation anyway.” Evans “suspected [Smith] had

schizoid tendencies and a high IQ but that was just [his] guess

and [Smith] wouldn’t participate in an evaluation.” State

habeas counsel’s 2002 interview of second-chair counsel,

Peter LaPorta, was consistent. Asked whether “there [was]

anything else that [counsel felt] should have been done for

[Smith’s] second penalty phase” LaPorta responded, “[Y]es,
26 SMITH V. BAKER

to put it succinctly. I was very uncomfortable with the

background information that [had been] developed on the

family and the family history, military history, educational

history, any psychological history.”

We agree with Smith that the performance of his second

penalty-phase counsel was deficient. This is not a case in

which counsel chose not to pursue mental health mitigation

evidence because there were other defense theories to pursue;

indeed, the presentation made on Smith’s behalf at the second

penalty phase was exceptionally sparse. The transcript

reflects only about twenty-five pages of testimony from three

family members and three family friends who testified about

Smith’s character and his relationship with his family, even

though red flags regarding Smith’s mental health were raised

in the pre-trial competency assessment and by his behavior

before and during trial. It was incumbent upon counsel to

investigate Smith’s mental health even though Smith denied

mental illness. The record shows that Smith’s lawyers did

not conduct an investigation to ascertain the extent of any

possible mental impairment, or to determine whether mental

health could have been raised as a mitigating factor at

sentencing. Counsel concluded that any psychological

assessment performed without Smith’s cooperation would be

of little or no value, but one of the two expert declarations

filed on Smith’s behalf in 2007 was prepared solely based on

the expert’s review of the record. If nothing else, a

comparable report could have been prepared at the time of the

sentencing without Smith’s participation. The applicable

American Bar Association (ABA) guidelines made clear that

“[t]he investigation for preparation of the sentencing phase

. . . should comprise efforts to discover all reasonably

available mitigating evidence.” ABA Guidelines 11.4.1(C)

(1989). The ABA guidelines further specified that counsel
SMITH V. BAKER 27

should collect a medical history (including “mental and

physical illness”) and investigate a defendant’s social history

in preparation for the penalty phase. Id. 11.4.1(2)(C). On the

record before us, we do not hesitate to conclude that the

failure to investigate Smith’s mental health history

contravened the ABA guidelines.

We have said that “strategic choices made after less than

complete investigation are reasonable precisely to the extent

that reasonable professionaljudgmentssupport the limitations

on investigation.” Wiggins v. Smith, 539 U.S. 510, 521

(2003) (quoting Strickland, 466 U.S. at 690–91). Smith’s

counsel had good reason to be concerned about Smith’s

mental state yet they acknowledged that they did not try to

obtain a psychiatric report, apparently because Smith

objected. We do not minimize the difficulty presented by

Smith’s failure to cooperate, but Smith had no other viable

defense and his inability to recognize that and submit to a

mental health evaluation may well have been another

indicator of a mental health disorder. The failure to pursue

mental health mitigation evidence “ignored pertinent avenues

for investigation of which [counsel]should have been aware.”

Porter v. McCollum, 558 U.S. 30, 40 (2009) (per curiam). 

The record does not demonstrate that counsel’s failure to

investigate was strategic. No alternate mitigation evidence or

argument was proffered to the jury, despite what appears to

be agreement among Smith’s attorneys that he may have

suffered from some sort of mental illness. See Evans v.

Lewis, 855 F.2d 631, 637 (9th Cir. 1988) (“Counsel’s failure

to investigate [a petitioner’s] mental condition[, despite prior

notice,] cannot be construed as a trial tactic.”); see also

Hendricks v. Calderon, 70 F.3d 1032, 1043 (9th Cir. 1995)

(“[W]here counsel is on notice that his client may be mentally

impaired, counsel’s failure to investigate his client’s mental
28 SMITH V. BAKER

condition as a mitigating factor in a penalty phase hearing,

without a supporting strategic reason, constitutes deficient

performance.”).

Our concurring colleague concludes that Smith’s

counsel’s performance was not deficient, cautioning that

counsel’s performance must not be judged with hindsight. 

Concurrence at 46–47. We do not doubt this rule, but in our

view it is the concurrence that misapplies it. By conflating

Strickland’s prongs one and two, the concurring opinion

decides that it was permissible to forgo a psychological

evaluation because, without Smith’s cooperation, his lawyers

guessed that a psychological assessment would be of “no

value.” Concurrence at 49–51. There is no question that

Smith’s failure to cooperate with a psychological evaluation

would have hindered any effort to muster persuasive

mitigating evidence for the second penalty phase, but this

comes into play at Strickland step two, when we consider

whether counsel’s deficient performance resulted in

prejudice. At step one, we consider whether Smith’s lawyers’

performance fell below an objectively reasonable standard,

and that question is largely a function of the choices that were

available to counsel. Here, we consider the questions raised

by Smith’s pre-trial competency evaluation and by counsel’s

own observations of Smith’s behavior; Smith’s persistent

failure to recognize the implausibility of his trial testimony;

his concerning trial conduct; and the fact that there was

almost nothing else to offer in defense of the death penalty. 

On this record, it was unreasonable to forgo a psychological

evaluation merely because Smith had confidence in his own

mental health and counsel assumed an assessment would be

of little value. Indeed, it is easy to imagine that a defendant’s

insistence that he is not ill may be a symptom of mental

illness. The out-of-circuit cases the concurring opinion cites
SMITH V. BAKER 29

are not to the contrary. See, e.g., Coleman v. Mitchell,

244 F.3d 533, 544–46 (6th Cir. 2001) (distinguishing cases in

which the failure to investigate and present mitigating

evidence constituted ineffective assistance, because defendant

served as co-counsel and instructed counsel to pursue an

alternate strategy); Johnston v. Singletary, 162 F.3d 630, 642

(11th Cir. 1998) (per curiam) (concluding that counsel’s

decision to forgo psychiatric testimony was strategic where

defendant refused to cooperate and his medical records

contained substantial data regarding his criminal history).

We conclude that Smith satisfied his burden of

demonstrating a “substantial” argument that his second

penalty-phase counsel’s performance was deficient.

2. Strickland Prong Two

The second Strickland prong requires that Smith show “a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694. The State argues that

even if Smith had presented evidence to the jury showing he

suffered from grandiose delusions as a result of his mixed

personality disorder, this mitigation evidence would have

paled in comparison to his vicious attack on his wife and

step-daughters. The Supreme Court has cautioned that this

type of evidence “is [] by no means clearly mitigating, as the

jury might have concluded that [the defendant] was simply

beyond rehabilitation.” Cullen, 563 U.S. at 201. Moreover,

in this case, testimony from a mental health expert would

have opened the door to rebuttal from a State expert witness. 

See id. In light of the extraordinarily brutal nature of the

murders, Smith has not shown that reasonable jurists would
30 SMITH V. BAKER

debate whether the result of Smith’s proceeding would have

been different if mitigation evidence had been pursued.

Our conclusion on this point is heavily influenced by

Smith’s failure to submit to a psychiatric evaluation at the

time of the penalty phase, and by the fact that only limited

evaluations could have been prepared without Smith’s

cooperation. Without the ability to conduct psychometric

testing and prepare detailed in-depth personal interviews with

Smith, any expert’s opinion would have been compromised

and necessarily vulnerable to cross examination.

To support his federal petition, Smith relies on the

opinions of Dr. Paula Lundberg-Love and Dr. Richard

Dudley to argue that counsel failed to investigate, develop,

and present mitigating mental health evidence. These experts

connected Smith’s “delusional thinking” with his long history

of get-rich-quick schemes and fraudulent dealings. For

example, Dr. Lundberg-Love attributed Smith’s extensive

history of fraudulent schemes to his delusions and “inflated

sense of self-worth.” She also juxtaposed Smith’s numerous

fraudulent schemes, ranging from real estate deals to

gemstone trading to check fraud, with his incredulous

protestations of innocence and claims that he had been set up

at every turn. Dr. Lundberg-Love noted that despite Smith’s

obviously precarious financial situation, he negotiated a

contract for the home in which the murders took place. 

Among her conclusions, Dr. Lundberg-Love determined that

Smith had “persistent false beliefs” relating to these schemes,

and that he had “exclusive insight or interpretation[s] of the

facts that will free him from his predicament.” Dr. LundbergLove concluded that Smith’s schemes and plans, in light of

the clear facts that he “never had sufficient resources to
SMITH V. BAKER 31

execute” them, “support[] the diagnosis of delusional

disorder.”

Dr. Dudley, who examined Smith in prison, reached

similar conclusions. Dr. Dudley explained that, when he met

Smith, “it was clear that he is extremely bright,” but he

“evidenced both a level of paranoid thinking and grandiosity

that compromised his . . . decision-making capabilities and

judgment.” He determined that Smith’s “grandiosity”

included “pursuing big real estate deals while he had no

assets, and he apparently did not succeed in any legitimate

deals.” Like Dr. Lundberg-Love, Dr. Dudley connected

Smith’s grandiose thinking to his decision to move his family

into a mansion “despite the fact that his checking account had

been closed for too many overdrafts, and despite him not

having any means to pay the pending mortgage debt against

the house.” 

Contrary to Smith’s protestations that the information

related to his mental health has “long [been] recognized as

mitigating,” this evidence is not “clearly mitigating.” First,

though it demonstrates Smith’s grandiosity, it focuses

extensively on Smith’s unlawful schemes. For example, in

one fraud detailed in Dr. Lundberg-Love’s report, Smith

offered handyman and remodeling services for a fee to

homeowners, then disappeared after receiving money for the

services. When confronted, Smith represented to the

homeowners that “the freight lines stole the cabinets he

ordered, and he [had to] travel[] to try to obtain the cabinets.” 

Ultimately, Smith never returned to finish the remodel, and

the homeowners lost the money they entrusted to Smith. In

another scheme, Smith and his brother, Harold, “fronted

money to homeowners in foreclosure,” and, in return,

“required that the homeowners provide . . . their deed as
32 SMITH V. BAKER

security.” Smith and his brother then pocketed the

homeowners’ mortgage payments, never applied the

payments to the mortgage, and sold the property to third

parties. Dr. Lundberg-Love’s and Dr. Dudley’s reports

detailed other schemes in which Smith attempted to obtain

loans on real property with forged deeds, attempted to sell

propertywith forged deeds, and attempted to trade “valuable”

amethysts (which were of little value) for real estate in Texas.

Thus, while there is a chance the evidence “may have served

to evoke sympathy for Smith or cast his culpability for the

murders in a different light,” there is an equal chance the jury

would have decided that this evidence confirmed that Smith

was a habitual fraudster who “was simply beyond

rehabilitation.” Cullen, 563 U.S. at 201.

The experts focused on Smith’s delusional protestations

of innocence, but these statements were not “clearly

mitigating” because they underscored that Smith was willing

to relate utterly implausible tales, as he did before the jury at

trial. For example, Dr. Lundberg-Love attested, “In this case

Mr. Smith’s note indicated several intruders murdered his

wife and stepchildren and that he killed one of the intruders. 

The only bodies found were those of his wife and stepchildren. As unbelievable as this recitation appeared, Mr.

Smith persisted in relating these facts to the jury. . . . His

delusional disorder compelled him to go forward as he did in

his testimony, even though part of his story was contradicted

by reality.” We cannot conclude there is a reasonable

probability that the expert declarations, prepared with little or

no cooperation from Smith, and without the benefit of

thorough testing and an opportunity for full evaluation, would

have changed the outcome of Smith’s penalty phase. See id.

at 202.
SMITH V. BAKER 33

Smith also argues that counsel spent only a few minutes

preparing his mitigation witnesses prior to their testimony. 

But Smith glosses over the fact that Evans traveled to Los

Angeles prior to trial and attempted to meet with Smith’s

brother. Smith’s brother did not appear at the meeting and

later refused to meet with Evans. Additionally, Smith’s

brother, mother, and father “were scheduled to testify at the

penalty hearing, but on the day of their scheduled testimony,”

they did not appear. After a number of “frantic calls to the

family, they appeared at court the next morning.” As a result,

Evans “did not get to meet with [Smith’s] mom and dad until

just before they testified.” Finally, Smith fails to identify any

additional mitigation evidence that could or would have been

provided by family members if additional time had been

invested. Because Smith did not meet his burden at

Strickland Step Two, the district court did not err by ruling

that Smith’s ineffective assistance of counsel claim was

procedurally defaulted.

B. Claim Eight—Stromberg Error

Smith’s § 2254 petition argues that because the Nevada

Supreme Court invalidated the trial court’s depravity of mind

instructions in Smith I and Smith II, Smith II’s affirmance of

the death penalty for Wendy’s murder was contrary to the

clearly established federal law set forth in Stromberg v.

California, 283 U.S. 359 (1931). Stromberg held that a

verdict is subject to challenge if a jury, presented with

alternative theories of guilt, may have relied on an

unconstitutional theory to reach its verdict. Id. at 367–68. 

Smith argues that it is unclear whether twelve jurors

unanimously found “mutilation” to support the statutory

aggravator because some of them may have relied solely on
34 SMITH V. BAKER

the invalid depravity-of-mind theory. If so, Smith argues, his

death sentence contravenes Stromberg.

The State argued in federal court that Smith’s Stromberg

claim was procedurally defaulted. The district court

disagreed, but it denied this claim on its merits. The district

court concluded that any error in the depravity jury

instruction was harmless because there was “strong

indication” the jury unanimously agreed on the mutilation

theory. On appeal to our court, the State abandoned its

procedural default argument. The State conceded this waiver

in its argument before our court, so we address the merits of

Smith’s Stromberg claim. See United States v. Pridgette,

831 F.3d 1253, 1259 (9th Cir. 2016).

To be eligible for the death penalty, Nevada law required

Smith’s second penalty-phase jury to find at least one

aggravating circumstance that was not outweighed by any

mitigating circumstances. Nev. Rev. Stat. § 175.554. The

single aggravating circumstance alleged in Smith’s case was

that “the murder involved torture, depravity of mind or the

mutilation of the victim.” See Nev. Rev. Stat. § 200.033(8). 

The trial court instructed the first penalty jury that depravity

of mind required:

an inherent deficiency of moral sense and

rectitude. It consists of evil, corrupt and

perverted intent which is devoid of regard for

human dignity and which is indifferent to

human life. It is a state of mind outrageously,

wantonly vile, horrible or inhuman.

In Smith I, the Nevada Supreme Court concluded that this

depravity instruction was unconstitutionally vague. 881 P.2d
SMITH V. BAKER 35

at 655–56. The court explained that its opinion in Robins v.

State, 798 P.2d 558 (Nev. 1990) had addressed the

constitutionality of the very same depravity-of-mind

instruction, and found it deficient. Robins relied on Godfrey

v. Georgia, 446 U.S. 420 (1980) to rule that the depravity

instruction required “torture, mutilation or other serious and

depraved physical abuse beyond the act of killing itself, as a

qualifying requirement to an aggravating circumstance based

in part upon depravity of mind.” Robins, 798 P.2d at 629. 

The Nevada Supreme Court reiterated the same requirement

in Libby v. State, 859 P.2d 1050, 1058 (Nev. 1993).

Smith I concluded that the depravity instruction given in

Smith’s first penalty hearing was unconstitutionally vague

because “the jury was not instructed that depravity of mind

must include torture, mutilation or other serious and depraved

physical abuse beyond the act of killing itself.” 881 P.2d

at 655. Smith I also acknowledged a unanimity problem was

presented by the possibility that some of Smith’s jurors may

have relied on the infirm instruction to impose the death

penalty. Id. Because the special verdict form did not require

that the jury separately consider depravity, or torture, or

mutilation; the court observed, “the jury in the instant case

found in the disjunctive torture, depravity of mind, or

mutilation and did not specify which of the three it found. It

therefore might well have based its finding of the aggravating

circumstance on depravity of mind.” Id. The court further

observed that because the jury found no other aggravating

circumstances, it could not “reweigh the aggravating and

mitigating evidence” to determine whether this error was

harmless. Id at 656. The court vacated the two death

sentences and remanded for a second penalty-phase hearing. 

Id.
36 SMITH V. BAKER

The second jury was instructed:

You are instructed that the following factors

are circumstances by which Murder of the

First Degree may be aggravated:

The murder involved torture, depravity of

mind or the mutilation of the victim.

The State is alleging depravity of mind in the

murder of Kristy Cox [the twelve-year-old].

The State is alleging torture or depravity of

mind or mutilation in the murder of Wendy

Cox [the twenty-year-old].

The trial court gave the second jury the same depravity-ofmind instruction that Smith I had declared unconstitutionally

vague, Instruction 10, and added Instruction 11 to further

define depravity of mind. Instruction 11 premised depravity

of mind on the undefined phrase, “serious and depraved

physical abuse”:

In order to find either torture or mutilation of

a victim you must find that there was torture

or mutilation beyond the act of killing itself.

In order to find depravity of mind you must

find serious and depraved physical abuse

beyond the act of killing itself.

The court separately defined “torture” and “mutilate” in

Instructions 9 and 12, but it did not further define the “serious

and depraved physical abuse” required for depravity of mind.
SMITH V. BAKER 37

The trial court instructed the second jury: “you must be

unanimous in your finding as to the aggravating

circumstance,” but it did not instruct the jury that it had to be

unanimous as to the underlying theory supporting the

aggravating circumstance (torture, mutilation, or depravity of

mind). During defense counsel’s closing argument, the trial

court interrupted counsel to stress that there was only one

statutory aggravating circumstance alleged, and that it had

three subparts:

to the extent that Mr. Evans is saying that

there may be some confusion as to whether

there is one aggravating circumstance or more

than one, he’s absolutely correct; there is only

one aggravating circumstance that is alleged

by the State in this case, and that is composed

of the subparts mutilation, torture or depravity

of mind. I’m going to correct what is a fairly

broad instruction, which is Instruction

Number 7, to specifically say, “The State has

alleged that an aggravating circumstance is

present in this case,” so there can be no doubt

that it is one aggravating circumstance with

three subparts. One of those subparts is

related to one of the victims or is alleged by

the State with reference to one of the victims,

all three of the subparts are alleged with

reference to the other victim; but it is only one

total aggravating circumstance.

Smith II, 953 P.2d at 266 n.4. In its closing, the prosecution

argued to the second jury that “if . . . you are satisfied beyond

a reasonable doubt that an aggravating factor exists, and it

doesn’t have to be all of the parts of the circumstance, it can
38 SMITH V. BAKER

be one, in the case of Kristy, or one or two or three in the case

of Wendy[.]” The second jury found “depravity of mind” as

to Kristy’s murder, and “depravity of mind” and “mutilation”

for Wendy’s murder, and it reimposed the death penalty for

both murders.

Smith challenged Instructions 10 and 11 on direct appeal

from the second sentencing hearing, and Smith II invalidated

the depravity instructions again. The Nevada Supreme Court

observed “[s]ince Robins, this court has upheld sentences of

death based on depravity of mind only where there has been

evidence of mutilation or of torture.” Id. at 266. The court

explained that to the extent “Smith I may have created some

confusion on the issue, depravity of mind, as an aggravator,

may only be relied upon where evidence of torture or

mutilation exists.” Id. at 266 n.3. Smith II held that “jury

instruction [11] is a departure from what this court has

previously determined is constitutionally acceptable,” i.e., it

did not conform to the standard the Nevada Supreme Court

adopted in Robins. Id. at 267.

Because the second jury had “no guidance” as to what

constituted “serious and depraved physical abuse,” Smith II

concluded “the jury instruction on depravity of mind failed to

properly channel the jury’s discretion in connection with the

charges [] stemming from Kristy’s death. An aggravating

circumstance based on depravityof mind must include torture

or mutilation beyond the act of killing itself.” Id. at 267

(citations omitted). For Kristy’s murder, depravity of mind

was the State’s sole theory supporting a death-eligible

aggravator. Accordingly, the Nevada Supreme Court

reversed the death sentence imposed for Kristy’s murder and

imposed a sentence of life imprisonment without the

possibility of parole. Id.
SMITH V. BAKER 39

This ruling left the aggravating circumstance in Wendy’s

murder as the sole support for the death penalty. The second

jury checked boxes next to “depravity of mind” and

“mutilation” for Wendy’s murder, and the Nevada Supreme

Court affirmed the death penalty based on the jury’s finding

of mutilation in Wendy’s case. The court concluded that the

instructions for mutilation were constitutionally sound and

that sufficient evidence supported the finding, beyond a

reasonable doubt, that Wendy’s murder involved mutilation. 

Id. at 267–68. The court did not address whether there was

indication that the jury unanimously decided upon mutilation.

C. Stromberg Error

Smith argues that the Nevada Supreme Court’s decision

to uphold the death verdict for Wendy’s murder was contrary

to clearly established federal law because it was impossible

to tell whether the jury unanimously found mutilation. Nev.

Rev. Stat. § 200.033(8). The State responds that the

depravityinstruction was constitutionally sound underfederal

law, and that the rule the Nevada Supreme Court set forth in

Robins is a state law requirement that is immaterial to relief

under § 2254(d).

A conviction is subject to challenge where a jury was

instructed on alternative theories of guilt and it may have

relied on an invalid one. Hedgpeth v. Pulido, 555 U.S. 57, 58

(2008) (per curiam) (citing Stromberg v. California, 283 U.S.

359 (1931)). In Hedgpeth, the Supreme Court observed that

Yates v. United States, 354 U.S. 298 (1957) extended

Stromberg’s rule to convictions based on multiple theories of

guilt where it is shown that one of the prosecution’s theories

was not unconstitutional but was legally flawed. See

Hedgpeth, 555 U.S. at 60. Such is the case here. In Smith II,
40 SMITH V. BAKER

the Nevada Supreme Court invalidated the depravity-of-mind

instructions used at Smith’s second penalty hearing, and we

do not second-guess that determination. Smith II, 953 P.2d at

267; see Estelle v. McGuire, 502 U.S. 62, 68 (1991)

(observing “it is not the province of a federal habeas court to

reexamine state-court determinations on state-law

questions”). The State’s argument that the depravity-of-mind

instructions comported with federal law amounts to

disagreement with the degree of specificity the Nevada

Supreme Court requires for its statutory aggravator. The

State fails to explain why we would question the Nevada

Supreme Court’s state law requirement.

The jury was not instructed that it must agree on which of

the three underlying theories supported the statutory

aggravator, or that, per Robins, it must find evidence of

mutilation or torture to find depravity of mind. We can see

no other clues in the record—such as jury polling—indicating

whether the juryunanimously agreed on mutilation. From the

jury’s check marks next to “depravity” and “mutilation” on

the special verdict form pertaining to Wendy’s murder, it is

impossible to tell whether the jury split their votes between

the invalid depravity theory and the valid mutilation theory. 

We therefore conclude that Smith demonstrated Stromberg

error. See Hedgpeth, 555 U.S. at 58.

In Valerio v. Crawford, an en banc panel of our court

reviewed a jury’s death verdict premised on two statutory

aggravators, one unconstitutionally vague and one

permissible. 306 F.3d 742, 759 (9th Cir. 2002) (en banc). 

Our en banc court ruled that “[a] state appellate court cannot

‘affirm a [trial] court without a thorough analysis of the role

an invalid aggravating factor played in the sentencing

process.’” Id. (quoting Stringer v. Black, 503 U.S. 222, 230
SMITH V. BAKER 41

(1992)). The court announced three avenues by which a state

appellate court can engage in close appellate scrutiny of an

invalid aggravator and affirm imposition of the death penalty. 

Id. First, a state appellate court may affirm by finding the

error harmless under the standard set forth in Chapman v.

California, 386 U.S. 18 (1967). Valerio, 306 F.3d at 756. To

do so, the state appellate court must conclude, beyond a

reasonable doubt, that the same result would have been

obtained without relying on the invalid aggravator. Id. Here,

the State conceded at oral argument before our court, that

Smith II did not engage in a Chapman harmless error

analysis.

Valerio’s second method for affirming a death verdict

where a jury may have relied on an invalid aggravator

instruction is to re-weigh the aggravating and mitigating

evidence pursuant to Clemons v. Mississippi, 494 U.S. 738

(1990). Valerio, 306 F.3d at 757. Clemons described that a

state appellate court may set aside an invalid aggravator and

re-weigh the remaining aggravating and mitigating factors to

determine whether an invalid instruction was harmless. Id.

But it is clear the Smith II court did not re-weigh aggravating

and mitigating evidence because Nev. Rev. Stat. § 200.033(8)

was the single aggravating circumstance alleged in Smith’s

case.

Valerio’s third proffered method is a Walton analysis, see

Walton v. Arizona, 497 U.S. 639 (1990), in which a state

appellate court “act[s] as a primary factfinder” by applying a

corrected instruction to the evidence and determining de novo

whether the state’s evidence satisfied the aggravator. Valerio,

306 F.3d at 757. This option was also unavailable in Smith’s

case because, as we explained in Valerio, a state appellate
42 SMITH V. BAKER

court may not undertake a Walton analysis if the penaltyphase factfinder was a jury. Id. at 758.

The Nevada Supreme Court failed to undertake any of the

options explained in Valerio, so there is no question that it did

not engage in close appellate scrutiny of the invalid depravity

instructions used at Smith’s second penalty hearing. Instead,

the state court relied on its conclusion that the evidence was

sufficient to support the mutilation theory. Smith II, 953 P.2d

at 267–68. But as the court recognized in Smith I, 881 P.2d

at 655, sufficiency of the evidence is not the issue; Smith’s

argument is that the jury may not have been unanimous.

Valerio held that the resulting Stromberg error is not

structural, so we do not assume prejudice. Rather, we assess

the effect of the invalid depravity instructions and resulting

Stromberg error under the harmless error standard set forth in

Brecht v. Abrahamson, 507 U.S. 619 (1993). See Hedgpeth,

555 U.S. at 61–62 (concluding that a Brecht harmless error

analysis is appropriate where the jury was instructed on

alternative theories of guilt and may have relied on an invalid

one); Valerio, 306 F.3d at 760–61.

Brecht’s harmlessness test asks whether we are left with

“grave doubt” about whether “the actual instruction had a

‘substantial and injurious effect or influence’ on the jury’s

verdict, in comparison to what the verdict would have been

if the narrowed instruction had been given.” Valerio,

306 F.3d at 762; see also Hedgpeth, 555 U.S. at 58. As the

Nevada Supreme Court stated in Smith II, the narrowed

construction of depravity of mind based on Nev. Rev. Stat.

§ 200.033(8) “requir[es] torture, mutilation or other serious

and depraved physical abuse beyond the act of killing itself,

as a qualifying requirement to an aggravating circumstance
SMITH V. BAKER 43

based in part upon depravity of mind.” Smith II, 953 P.2d

at 266 (quoting Robins, 798 P.2d at 570). We therefore

compare the result obtained with Instructions 10 and 11

against “what the verdict would have been if the [Robins]

instruction had been given.” Valerio, 306 F.3d at 762.

The juxtaposition of the evidence pertaining to Kristy’s

murder and the evidence pertaining to Wendy’s murder leads

us to conclude that the invalid instruction did not have a

substantial and injurious effect on the jury’s verdict. The

second jury heard the medical examiner’s testimonyabout the

extent of both of the murdered step-daughters’ wounds. The

medical examiner explained that Kristy, age twelve, suffered

four wounds—three to the head, and one to the neck—and

that there was a laceration on her finger. The medical

examiner then moved on to Wendy’s much more substantial

injuries, and told the jury that Wendy suffered thirty-two

blunt-force wounds to her head (including skull fractures),

and that the extensive wounds Wendy suffered demonstrated

that she fought for her life. The examiner testified that

Wendy’s wounds appeared to have been inflicted with the

claw end of a hammer, and that her left ear was nearly cut in

two. The examiner found prominent abrasions on Wendy’s

neck, and that she had defensive wounds on her hands. 

Despite these brutal injuries, the actual cause of Wendy’s

death was strangulation. The medical examiner opined that

Smith likely used hammer blows to subdue his victims and

then strangled them to death.2

2 On appeal, the State argued there was “overwhelming evidence” of

mutilation because Wendy was attacked with the claw end of a hammer. 

The State overlooks that the jury was instructed that, under Nevada law,

mutilate “means to cut off or permanently destroy a limb or essential part

of the body or to cut off or alter radically so as to make imperfect,” and
44 SMITH V. BAKER

The numerous blunt-force woundsthatfractured Wendy’s

skull, coupled with the medical examiner’s testimony that a

large laceration inside her ear almost cut her outer ear in two,

do not leave us with grave doubt about whether the jury

would have unanimously found mutilation. Photos and the

medical examiner’s testimony graphically illustrated that the

wounds Wendy suffered radically altered essential parts of

her body, and we are confident the invalid instruction did not

have a substantial and injurious effect on the jury’s verdict.

V. Conclusion

Smith persuasively argued that the performance of his

second penalty-phase counsel was deficient for failing to

investigate mental health mitigation evidence, but he has not

shown that he was prejudiced. This claim was defaulted. 

Separately, we conclude that the Stromberg error in Smith’s

jury instructions was harmless under Brecht. We decline to

grant a Certificate of Appealability for any of the other claims

Smith briefed, and affirm the district court’s judgment.

AFFIRMED.

that “to find . . . mutilation of a victim you must find that there was . . .

mutilation beyond the act of killing itself.” In other words, it was the

extent ofWendy’s injuries that determined whether mutilation applied, not

the means used to injure her.
SMITH V. BAKER 45

N.R. SMITH, Circuit Judge, concurring:

The district court’s order dismissing Joseph Smith’s

federal habeas petition should be affirmed. The majority got

it right in: (1) finding that Smith failed to show he was

prejudiced by the lack of an evidentiary hearing, and

concluding that the district court did not abuse its discretion

by dismissing his Martinez1claim without holding an

evidentiary hearing; (2) certifying Smith’s eighth claim,

which alleges a violation of the rule set out in Stromberg v.

California, 283 U.S. 359 (1931), and concluding that the

Stromberg error in Smith’s jury instruction was harmless; and

(3) declining to certify Smith’s remaining uncertified claims.

The district court’s judgment dismissing Smith’s

ineffective assistance of counsel (“IAC”) claim as

procedurally barred should also be affirmed. However, I

arrive at that conclusion via a different route than the

majority. Unlike the majority, I believe Smith’s counsel’s

performance during the second penalty-phase hearingwas not

deficient under the first prong of Strickland v. Washington,

466 U.S. 668 (1984), and therefore find his IAC claim

insubstantial. I write separately to address this point.

To establish cause and prejudice to excuse the procedural

default of his IAC claim, Smith must show, inter alia, that:

“(1) the claim of ‘ineffective assistance of trial counsel’ was

a ‘substantial’ claim; [and] (2) the ‘cause’ consisted of there

being ‘no counsel’ or only ‘ineffective’ counsel during the

state collateral review proceeding.” Trevino v. Thaler,

569 U.S. 413, 423 (2013) (quoting Martinez, 566 U.S.

at 13–18).

1 Martinez v. Ryan, 566 U.S. 1 (2012).
46 SMITH V. BAKER

With respect to Martinez Step One, Smith must

“demonstrate that the underlying ineffective-assistance-oftrial-counsel claim is a substantial one, which is to say that

the prisoner must demonstrate that the claim has some merit.”

Martinez, 566 U.S. at 14. To establish the merits of an IAC

claim, “[t]he Strickland standard requires a showing of both

deficient performance and prejudice.” Rodney v. Filson,

916 F.3d 1254, 1260 (9th Cir. 2019) (citing Strickland,

466 U.S. at 687).

A.

Deficient performance under Strickland is performance

that falls “below an objective standard of reasonableness.”

466 U.S. at 688. “In any case presenting an ineffectiveness

claim, the performance inquiry must be whether counsel’s

assistance was reasonable considering all the circumstances.”

Id. (emphasis added). Although “[p]revailing norms of

practice as reflected in American Bar Association standards”

may serve as “guides to determining what is reasonable, . . .

they are only guides.” Id. This is so, because no standards or

set of rules “can satisfactorily take account of the variety of

circumstances faced by defense counsel or the range of

legitimate decisions regarding how best to represent a

criminal defendant.” Id. at 688–89.

Our “scrutiny of counsel’s performance must be highly

deferential,” because “[i]t is all too tempting for a defendant

to second-guess counsel’s assistance after . . . [an] adverse

sentence, and it is all too easy for a court, examining

counsel’s defense after it has proved unsuccessful, to

conclude that a particular act or omission of counsel was

unreasonable.” Id. at 689. Thus, “[a] fair assessment of

attorney performance requires that every effort be made to
SMITH V. BAKER 47

eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to

evaluate the conduct from counsel’s perspective at the time.”

Id. Because of the difficulty in conducting this evaluation, we

“must indulge a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional

assistance.” Id.; see Cullen v. Pinholster, 563 U.S. 170, 196

(2011) (noting that “Strickland specifically commands that a

court ‘must indulge [the] strong presumption’ that counsel

‘made all significant decisions in the exercise of reasonable

professional judgment’” (alteration in original) (quoting

Strickland, 466 U.S. at 689–90)).

Smith argues, and the majority agrees, that Smith’s

counsel’s performance during the second penalty-phase

hearing was deficient, because counsel failed to investigate

Smith’s mental health and retain an expert to opine thereon.

Opinion at 26–29. I disagree.

The majority correctly notes that counsel’s argument at

the April 1996 penalty hearing was predicated on character

evidence similar to that presented at the first trial, and counsel

did not arrange or request a mental health evaluation of

Smith. Id. at 25. However, the reason no mental health

evaluation was arranged or requested is because Smith

refused to cooperate with, or submit to, any mental health

evaluation. Indeed, Donald York Evans, Smith’s first-chair

counsel at the second penalty hearing, stated:

When I first was appointed to represent Joe, I

wanted to do a complete psychological workup on him. I discussed the idea with Joe, and

he refused to submit to any testing. He

insisted he was not crazy. Joe would have
48 SMITH V. BAKER

none of it, and so I did not press the issue.

There was no value in getting a mental health

expert if Joe was not going to participate. I

wasn’t confident that I would get anything I

could use from an evaluation anyway. I

suspected he had schizoid tendencies and a

high IQ but that was just my guess and he

wouldn’t participate in an evaluation.

In Strickland, the Supreme Court recognized that “[t]he

reasonableness of counsel’s actions may be determined or

substantially influenced by the defendant’s own statements or

actions. Counsel’s actions are usually based, quite properly,

on informed strategic choices made by the defendant and on

information supplied by the defendant.” 466 U.S. at 691

(emphasis added).

In Campbell v. Kincheloe, we applied the above-stated

principle in a habeas action brought by an inmate convicted

of three counts of aggravated murder and sentenced to death.

829 F.2d 1453, 1456–57, 1463 (9th Cir. 1987). There, the

defendant argued that his attorneys’ performance was

deficient, because they “fail[ed] to interview his family and

childhood friends, classmates, and teachers.” Id. at 1463.

However, the defendant had “specifically requested his

attorneys not to contact members of his family.” Id. Drawing

on the Supreme Court’s statement that “[t]he reasonableness

of counsel’s actions may be determined or substantially

influenced by the defendant’s own statements or actions,”

Strickland, 466 U.S. at 691, we held that trial counsels’

performance was not deficient, because they abided by the

defendant’s wishes and the defendant’s wishes were

consistent with “the professional judgment of his attorneys

that such interviews were unnecessary and would not have
SMITH V. BAKER 49

made any difference in the context of the case.” Campbell,

829 F.2d at 1463–64.

Relying on the principle discussed in Strickland and

Campbell, other courts have declined to find counsel’s

performance deficient where a defendant refuses to cooperate

with a certain line of investigation and subsequently alleges

error based on the attorney’s incomplete investigation into the

frustrated line of inquiry. See, e.g., Coleman v. Mitchell,

244 F.3d 533, 545–56 (6th Cir. 2001) (finding counsel’s

performance not deficient where, inter alia, the defendant

“did not cooperate with counsel . . . and refused to submit to

further psychological or psychiatric testing”); Owens v.

Guida, 549 F.3d 399, 405–06, 411–12 (6th Cir. 2008)

(finding counsel’s performance not deficient where

“[c]ounsel could have reasoned that additional investigation

would be of little use because [the defendant’s] own actions

[(e.g., refusing to cooperate with mental health examiners)]

shut off avenues for mitigation”); Johnston v. Singletary,

162 F.3d 630, 642 (11th Cir. 1998) (per curiam) (finding

counsels’ performance not deficient where, “despite his

lawyers’ efforts to have [the defendant] evaluated by a . . .

mental health expert[, the defendant] was steadfast in his

resistance to meeting with this expert”); Thompson v.

Wainwright, 784 F.2d 1103, 1106 (11th Cir. 1986)

(recognizing that a defendant “cannot blame the lack of

additional psychiatric examinations on incompetent counsel”

where the defendant refused to “cooperate” with the previous

psychiatrist).

The reasonableness of Smith’s penalty-phase counsel’s

decision not to retain a mental health expert is “substantially

influenced by [Smith’s] own statements [and] actions.”
50 SMITH V. BAKER

Strickland, 466 U.S. at 691.2 Evans discussed the possibility

of obtaining a psychological evaluation of Smith, but Smith

refused to submit to any such examination and adamantly

insisted that he had no mental health issues. Smith’s

actions—i.e., his refusal to cooperate with, and submit to, any

mental health evaluation—provided “counsel reason to

believe that pursuing [a mental health] investigation[ ] would

be fruitless,” because any expert report prepared without

Smith’s participation would, in counsel’s own words, be of

little or “no value.” See Strickland, 466 U.S. at 691; see also

Johnston, 162 F.3d at 642 (“[W]hen the strategy an attorney

might otherwise pursue is virtually foreclosed by his client’s

unwillingness to facilitate that strategic option, it is difficult

for [a] court, in a collateral proceeding, to characterize as

‘unreasonable’ counsel’s decision to abandon that otherwise

preferable strategy.”). Smith cannot now complain that his

counsel acted unreasonably by failing to investigate and

present mental health evidence at his sentencing when it was

2 The majority argues that I conflate Strickland’s prongs one and two,

but I consider Smith’s “own statements [and] actions” in determining

whether Smith’s counsel’s performance was deficient. Strickland,

466 U.S. at 691. Indeed, the majority contends that, “[a]t step one, we

consider whether Smith’s lawyers’ performance fell below an objectively

reasonable standard, and that question is largely a function of the choices

that were available to counsel.” Opinion at 28.

Contrary to the majority’s argument, that is precisely what I have

done here. Put simply, Smith’s refusal to cooperate with, and submit to,

anymental health evaluation presented counsel with two choices. Counsel

could either retain a mental health expert to prepare an evaluation based

entirely on the record—which counsel recognized would be of little or no

value—or, considering Smith’s refusal, counsel could reasonably choose

not to retain a mental health expert to render a “compromised” opinion

that would “necessarily [be] vulnerable to cross examination.” Opinion

at 30.
SMITH V. BAKER 51

Smith’s own actions that effectively rendered any such

evidence of “no value.” See Strickland, 466 U.S. at 691;

Johnston, 162 F.3d at 642.

Both Smith and the majority argue that an expert could

have prepared a report without Smith’s participation based

solely on the expert’s review of the record—a report similar

to that prepared by Dr. Lundberg-Love in 2007. But, as

discussed, Smith’s counsel recognized that a report prepared

without Smith’s participation and based solely on a review of

the record would be of “no value.” The majority apparently

reaches the same conclusion, stating that “any expert’s

opinion [prepared without Smith’s cooperation] would have

been compromised and necessarily vulnerable to cross

examination.” Opinion at 30 (emphasis added). Thus, counsel

exercised reasonable professional judgment in declining to

retain an expert to render a compromised opinion that would

have been of little or no value. See Owens, 549 F.3d at 412

(finding counsel’s performance not deficient where

“[c]ounsel could have reasoned that additional investigation

would be of little use because [the defendant’s] own actions

[(e.g., refusing to cooperate with mental health examiners)]

shut off avenues for mitigation”); cf. Jeffries v. Blodgett,

5 F.3d 1180, 1198 (9th Cir. 1993) (recognizing that where “a

defendant preempts his attorney’s strategy” with his or her

actions or statements, “no claim for ineffectiveness can be

made” (quoting Mitchell v. Kemp, 762 F.2d 886, 889 (11th

Cir. 1985))).

Moreover, even assuming Smith would have participated

in an evaluation, counsel was not “confident that [he] would

get anything [he] could use from [the] evaluation.” This

judgment is reasonable in light of the 1992 competency

report, which was based on a two-day evaluation of Smith
52 SMITH V. BAKER

and several psychometric tests and found that, despite a

potential mixed personality disorder, Smith was “an

intelligent individual without any serious cognitive or

affective psychological disorder[s]” and exhibited no “acute

or Axis I mental disorders.” The report concluded that Smith

was competent to stand trial and “competent at the time of the

alleged offense.”

Smith and the majority also rely on certain American Bar

Association (“ABA”) standards to show counsel acted

unreasonably. Those standards require counsel to investigate

“all reasonably available mitigating evidence,” ABA

Guidelines 11.4.1(C) (1989), including any evidence of a

defendant’s mental illness, see id. at 11.4.1(D)(2)(C).

However, although the ABA standards may “guide[]” the

inquiry into whether Smith’s counsel’s performance was

reasonable, “they are only guides.” Strickland, 466 U.S. at

688 (emphasis added). As noted above, “[t]he reasonableness

of counsel’s actions may be determined or substantially

influenced by the defendant’s own statements or actions.” Id.

at 691 (emphasis added). That is precisely what happened

here. Smith’s actions “substantially influenced” the

reasonableness of his counsel’s decision not to conduct a

more in-depth investigation into Smith’s mental health and

mitigated any guidance gleaned from the ABA standards. See

id.; see also Jeffries, 5 F.3d at 1197–98 (finding counsel’s

performance not deficient where counsel acquiesced in the

defendant’s decision “not to present any witnesses in

mitigation,” which contravened ABA standards).

Considering “all of the circumstances” and indulging “a

strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance,” Strickland,

466 U.S. at 689, 691, Smith’s second penalty-phase counsel’s
SMITH V. BAKER 53

judgment not to engage an expert to opine on Smith’s mental

health is reasonable in light of Smith’s refusal to cooperate

with any mental health expert. See Owens, 549 F.3d at 406,

411–12 (finding counsel’s performance not deficient where

“[c]ounsel could have reasoned that additional investigation

would be of little use because [the defendant’s] own actions

[(e.g., refusing to cooperate with mental health examiners)]

shut off avenues for mitigation”); Johnston, 162 F.3d 642

(finding counsel’s performance not deficient where, “despite

his lawyers’ efforts to have [the defendant] evaluated by a . . .

mental health expert[, the defendant] was steadfast in his

resistance to meeting with this expert”).

Therefore, Smith’s IAC claim is insubstantial, because it

lacks merit. See Martinez, 566 U.S. at 14. Because Smith

cannot establish cause and prejudice to excuse his procedural

default under Martinez, the district court did not err in

holding that Smith’s IAC claim was procedurally defaulted.

B.

Because Smith’s second penalty-phase counsel’s

performance was not deficient, I would not reach the

prejudice prong of Strickland. However, assuming that

counsel’s performance was deficient (as does the majority),

Smith failed to show “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694.