F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

J O S E P H W E L D O N S M I T H ,

Petitioner-Appellant

,

v

.

R E N E E B A K

E R , W arden; A A R

O N D. F O R D , * Attorney

General of the State of Nevada, Respondents-Appellees. N o. 14-99003

D.C. No. 2:07-cv-00318- J CM-CW H

OPI NI ON

A ppeal from the United States District Court for the District of Nevada J ames C. Mahan, District J udg e, Presiding

Arg ued and Submitted J uly 11, 2019 Seattle, W a shing ton

F iled May

21, 2020

B efore: N. Randy

Smith, Mary

H. Murg uia, and Morg an Christen, Circuit J udg es.

Opinion by

J u d g e Christen; Concurrence by

J udg e N.R. Smith

* A aro n D. Fo rd is su

b stitu ted f o r h is p red ecesso r, A d am P au l L ax alt, as Nev ad a A tto rn ey

Gen eral, p u rsu an t to Fed . R. A p p . P . 4 3(c)(2 ).S M I T H V

. B A K E R 2

SUMMARY * *

Habeas Corpus/Death P e nalty

The panel affirmed the d istrict court’s judg ment dismissing J oseph W eldon Smith’s habeas corp u s p etition challeng ing his Nevada convictions for three murders and o ne

a t tempted murder, and his death sentence for one of th e murders.

The district court issued a certificate of appealability for Smi t h ’ s arg ument that the p rocedural default of his ineffective-of-assistance-of-counsel claim should be e x cused pursuant to Martinez v. Ryan , 566 U.S. 1 (2012). The panel held that Smith d id not show that he was prejudic e d by the lack of an evidentiary hearing

, and that the district c ourt did
not abuse its d iscretion by dismissing the M a r t i n e z claim without h olding one. A pply ing Martinez and S t r i c kland v

. W ashington

, 466 U.S. 668 (1984), the panel held that Smith satisfied his burden of d emonstrating a substantial arg ument that the performance o f his second penalty -phase counsel was deficient for failing to investig ate mental health mitig ation evidence, but that Smith d id n ot show that he was p rejudiced by counsel’s deficient performance.

The panel certified for a

ppeal Smith’s claim that the death verdict v i o l ated Stromberg v. California

, 283 U .S. 359 (1931). T he panel held that Smith demonstrated Stromberg

error because it was im p o s s i b l e to tell whether the jury unanimously found mutilation, which was the sole basis to

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.S M I T H V

. B A K E R 3

support the death verdict after the Nevad a S u p reme Court invalidated the trial c ourt’s de p r a v i t y

- of-mind jury instruction. T he panel c o ncluded that the error was harmless because the invalid instruction did not have a substantial a nd injurious effect on the jury ’s verdict.

The panel declined to certi f y Smith’s remaining uncertified claims.

Concurring

, J udg e N.R. Smith w ould affirm the d ismissal of Smith’s ineffective-assistance-of-counsel claim a s procedurally barre d o n a different g round—that counsel’s performance during the second penalty -phase hearing w as not deficient, and that the claim is therefore insubstantial.

COUNSEL

Robert F itz g erald ( arg ued), David Anthony

, Heather F raley

, and B rad D. L evenson, A ssistant F e deral Public Defenders; Rene L

. Valladares, F ederal Public Defender; Office of the F ederal Public Defender, L as Veg as, Nevada, for PetitionerAppellant.

J effrey Morg an Conner (arg u ed), Deputy

Assistant Attorney General; Victor-Hug o Schulz e I I
, Senior Deputy Attorney General; Heidi Parry

Stern, Chief Deputy

Attorney General; Office of the Attorney General, L as V eg as, N evada; for Respondents-Appellees.S M I T H V

. B A K E R 4

OP INION

CHRI STEN, Circuit J udg e:

I n 1992, a Ne v a d a jury convicted J oseph W eldon Smith of three counts of fir s t d e gr ee murder w ith use of a deadly
weapon for beating and strang ling his wife, J udith Smith, a nd his step-daug hters, W endy J ean Cox and Kristy Cox

. The

women w ere k illed in a h ome the S m i t h s were renting in Henderson, Nevad a

. The jury also c onvicted Smith o f attempting to murder F rank Allen wi t h use of a deadly
weapon. Allen owned the home the Cox family was renting

. F or W endy ’s and K

rist y ’ s m u rders, Smith was sentenced to death. F or J u dith’s murder, he was sentenced to life in prison without the possibility

of parole.

Smith a p pealed his convictions and sentences. The Nevada Supreme Court affirmed the convictions, but it vacated the death sentences a n d remanded for a new penalty hearing

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

. After a second penalty heari n g, Smith was ag ain sentenced to death for W endy ’s and K risty ’s murd e r s

. On appeal, the Nevada Supreme Court vacated the death sentence for Kristy ’s murder and instead im p osed a sentence of life without the possi b ility of parole, but it affirmed the death penalty for W endy ’s murder. See S mith v. Sta te , 953 P.2d 264 (Nev. 1998) ( S

m ith II )

.

Smith filed a pro per habeas petition in state district court, which w as denied, and the Nevada Supreme C o u r t affirmed that ruling in an unpublished order. Smith the n f i l e d a pro per habeas petition in fed e r a l d i strict court. That court

a p pointed counsel for Smith and stay ed the fede ra l proceeding s so Smith c ould return to state court to ex ha ustS M I T H V

. B A K E R 5

certain claims. The state district c o urt denied Smith’s second
state habeas petition on procedural default g rounds, a nd the Nevada Supreme Court affirmed that decision. S m ith then returned to federal court, where the State’s motion to dismiss

was g ranted in part and denied i n p art. The federal district
court later d enied the remainder of Smith’s petition but issued

a c ertificate o f appealability for his arg ument that the procedural defau l t of his ineffective assistance of counsel (I AC) claim should be ex cused pursuant to Martinez v. Ryan
, 566 U.S. 1 ( 2 0 1 2 )

. Smith appeals the denial of his federal habeas petition.

W e affirm the district court’s judg ment dismiss i ng Smith’s I AC c l a im as p rocedurally barred. Althoug h we conclude that his c ounsel’s performance at the second penalty

- phase hearing was defi c ient, Smith has not shown that he was prejudiced by his counsel’s performance. Smith’s I AC claim therefore remains p rocedura l l y defaulted, a nd cannot serve as a basis for federal habeas relief.

Smith also asserts n ine uncertified claims on appeal. W e may issue a certificate o f a ppealabi l i t y when a p etitioner shows “that reasonable jur i s t s could d ebate whether

. . . the petition should have been re s o l v ed in a different manner o r t h a t the issues presented were ‘adequate to deserv e encourag ement to proc e ed f urther.’” Miller-El v. Cockrell

, 537 U.S. 322, 336 (2003) ( quoting Slack v. McDa n iel

, 529 U.S. 473, 484 (2000)). W e c ertify Smith’s eig h th c laim, which alleg e s v i o lation 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 S tromberg error was harmless. The remaining uncertified claims do not raise substantial questions of law. W e decline
to certify them because we are not persuaded that “reasonableS M I T H V

. B A K E R 6

jurists w ould find t h e district court’s assessment o f the constitutional claims debatable or w rong .” M iller-El

, 537 U.S. at 338 ( q u o t i ng Slack

, 529 U.S. at 484). W e therefore affirm the district court’s o rder dismissing Smith’s federal habeas petition.

I. F actual Background

The facts relating to the murders and to Smith’s first trial and penalty -phase hearing w ere recount e d b y 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: O n S a t u r d a y, O c t o b e r 6
, 1 9 9 0
, a t approx imately 2:29 a.m., he was dispatched to t he F ountains, a g ated community i n Henderson. W h i l e on his w ay , Hull was flag g ed down by a man who subsequently identified h i m self as F rank Allen. Allen appeared frantic and Hull o bserve d blood on his shirt and b lood running down the left side of his head. Allen told Hull that Smith h ad attacked him with a hammer or a hatchet.

After arriving at the Smiths’ home, located at 2205 Versailles Court i n side the g ated community

, Hull and two other officers observed a larg e broken window ly ing on the front porch o u tside the house. Allen h ad

ex p lained t o the officers that he h ad left throug h that window. The officers entered the premises and, d

uring a search of a be droom, observed what appeared to be a fig ure beneathS M I T H V

. B A K E R 7

a blanket. A f

ter lifting the b lanket, they discovered a d ead body

, subsequently identified as twelve-y

ear-old K risty C o x

. I n

an adjacent bedroom they d iscovered a second b o d y , also d ead a

n d covered w ith a blanket

, later identified as twenty -y ear-old W endy Cox

. Un der a blanket in the master bed, the officers found a third vic t i m , Kristy a nd W e ndy ’s mother and Smith’s wife, J udith.

The officers a lso located some note s w ritten by Smith. The first, f

o u n d inside a briefcase in the upstairs den, and dated October 5, 1990, read:

A triple murder was committed h ere this morning

. M y w i fe, J udith Smith and my two stepdaug h ters, W endy Cox and Kristy Cox
, were assassinated. I know w ho did it. I know w h o s ent them. I had been warned that this would happen if I did not pay a larg e sum of money to c ertain
p eople. I have been owing it for a l o n g time and simply co u l d not come up with it. And I didn’t believe the threat. I don’t need any help f

r om the polic e in this
matter. I will take care of it my self. They will have to kill me, too. W hen and if y ou find me, I ’m sure I will be d ead, but that’s okay

. I already killed one of the murderers. A n d I a m g oing to g et the others and the man who I know sent them. There wer e t h ree in all. You willS M I T H V

. B A K E R 8

pr o b a bly find my b ody within a day o r

two.

Thank y ou, J oe Smith.

P

. S .: I thoug ht I had g o tten away wh e n

we moved h ere, but it d idn’t work. W h en

we m o v e d

, we were being watched. I f I

am successful in my task at h a nd, I will turn my self into (sic) the police.

The second letter stated, “F rank [ Allen]

, look in the locked room upstairs for y our packag e

. The k ey is o n the we t bar. J o e.” Dr. Giles Sheldon Green, Chief Medical Ex aminer for Cl a r k County
, testified that he performed the autopsies on the bodies of t h e three victims. Green s t a t ed that all three victims died f rom asphy x ia due to manu a l s trang ulation. He also o pined that the p a t t er n o f injuries found

on the three victims could have b een inflicted with a c arpenter’s h ammer. O n K risty

, Green observed three blunt lacerations to the scalp and a lot of b lood in K ri s t y ’s hair, some bruising and a scratch on h e r n eck, a nd substa n tial hemorrhag ing as a result of the trauma to her scalp.

On W e ndy

, Green observed sever a l “quite
rag g ed, irreg ular, dee p l acerations of the forehead,” and a t least six or seven wounds o f the f ace. There were a total of thirty -two head lacerations, some of which were patterned injuries of pairs of penetrating wounds of theS M I T H V

. B A K E R 9

scalp t issue. O n the left side of Wendy ’s head, a larg e laceration inside the ear almost

c u t the outer ear in two. Green foun d

numerous scratches and abrasions on the f ront of Wendy ’s neck, as well a s d e fensive wounds, such as a f

r actured fing er, bruises on the bac k s o f her hands and a f ing er with the skin over th e knuckle knocked away

. Green found a reas in which the v arious h ead impacts h ad created depressed fractures of the outer

a n d inner surfaces of the skull. There was also a g reat deal of hemorrhag ing and damag e to the soft tissues of W endy ’s neck.

On J udith, Green found lacerations of the forehead and above h er rig ht ey ebrow, abr asions and scratches on the front of her neck a nd a cluster o f at least five lacer ations of the scalp, mainly on the rig h t s i d e of the back of the head. I t was G reen’s opinion that the five lacerations were inflicted after death.

Allen t e s t i fied as follows: He met Smith in September 1990, when Smith c ame to Allen’s home located at 2205 Versailles Court, inside the F ountains, wishing to purchase that home. Although Allen first indicated that the house

was not for sale, aft e r Smith ag reed to pay $50,000 over the a

p p raised value of $650,000, Allen a g reed to sell h i m the house. Allen subsequently g a v e Smith the key s to the house, b u t retained o ne of the b edrooms for his use when h e c a me to L as Veg as on weekends, until the s a le was final. SmithS M I T H V

. B A K E R 10

informed Allen that he was in a rush to move into the house because he wanted t o make preparations for h is step-daug hter, W endy ’ s, wedding in November.

On September 21, 1990, Smith ga v e A llen a personal check for $35,000 as a g ood faith d e posit. Approx imately six day s later, the bank notified Allen that the ch e c k had been

r eturned because Smith had closed hi s account. Smith assured Allen that he would mail him a certified check immediately

. Two day s later, h aving not received a check, Allen indicated to Smith that he would be coming to L as Veg as o n Friday

, October 5, 1990, a nd would pick up the check then.

On F riday morning

, Allen received a call f rom Smith who stated, “I thoug ht y ou we r e coming up he r e t h is morning .” Allen told Smith that he would b e coming later in the day

. Smith stat e d t h a t he and his wife were go i n g to California to shop f or f urniture tha t day

, so they arrang ed for S m ith to leave two checks, the $35,000 deposit c heck and a $3,338.80 check for the October m o r tg ag e pay ment, behind the wet bar in the hou s e, along with Allen’s mail.

Allen arrived at the h o u se between 1:00 a.m. and 1:30 a.m. on Satur d a y , O ctober 6, 1990, and noticed that the security sy stem was o f f. He went behind the wet bar to r e t r i e ve his mail and found the n o t e from Smith tellingS M I T H V

. B A K E R 11

him to look in the locked room u pstairs for the packag e. Allen w ent to that room an d

, not finding any checks, went into the g ame room. Althoug h the lig ht w as not o n in the g ame room, the a r e a was illuminated by a larg e chandelier in the hallway

.

I n the g ame room, Allen saw Smith crouched in the closet. Sm i t h t h en jumped out a nd beg an to pound Allen in the head with an ob j ect, which Allen a ssumed was a hammer. Allen asked Smith what he was t r y i n g to do, but Smith did not say any

thing

. Realiz ing that Smith was try ing to k i l l h im, Allen said, “You’re not g oing to g et a w ay with this,” a

nd pushed Smith b a c kward and ran down the stairway with Smith pursuing him. Allen tried
t o f i g ure out the best way to g et out of t h e house, and after realiz ing that h e had locked himself in, ran straig ht throug h the full-leng th, l eaded-g lass front door. He then g ot into hi s

car and drove to the g uard shack a t the
entrance to the development a n d asked the
g uard to call the police.

E r i c L au, the security g uard then on duty a t the g uard-g at e d entrance to the F ountains,
te s t ified that at approx imately 2:30 a.m. on Saturday

, October 6, 1990, Allen ran up to the side of the g u ard hous e and pounded on the window. Allen ’ s shirt was c overed with blood and he said, “He’s after me! He’s af ter me!” L au immediately called fo r help a ndS M I T H V

. B A K E R 12

then saw Smith’s L incoln automobile ex it the F ountains, with Smith behind the wheel.

Yo landa Cook, J udith’s daug hter-in-law, testified that on the morning of F riday

, October 5, 1990, at 8 : 0 0 a

. m ., she called the Smiths’ house to see if someone could take her son to school. She spoke with Smith, who told h er that he had to g o to a meeting and that J udith, W endy and Kristy had g one shopping for W endy ’s wedding

. B etween 9:00 a .m. a nd 3:30 p.m., Yolanda called the S miths’ house
t hree more times, and each time Smith tol d her that J udith and her daug hters were away

.

Yolanda further te s tified that on Saturday

, October 6, 19 90, at approx imately 5:00 a.m., Smith called her and told he r o f the three murders. He told her that A llen came into the house a n d bludg eoned them to death. Smith requested that she tell all of J udith’s other children a nd then go to the h ouse and g e t the letters out of his briefcase ex plaining wha t happened. H e then told her that he was g oing to kill himself and hung up the phone.

W illiam L awrence Cook, one o f J udith’s sons, testified that Smith h ad ex pressed concern a nd irritation o v e r f

inancial oblig ations such a s W e ndy ’s p ending weddin g and the new house. Wil l i a m testified that Smith would often refer to himself as the “L one W olf” a nd
say , “I g otta g et o utta here.” Sometimes Smith would say that he j u s t wanted to g oS M I T H V

. B A K E R 13

away a n d live on a

n island somewhere “around no kind of family or nothing like that.” William a lso remembered Smith telling him that “the w orse thing to f___ up a man

was to have a fam i l y .” Smith made these

s t a t e m e n t s d u r i n g a c o l l e c t i o n o f conversations over a period of y ears.

Smith took the stand on his own behal f a nd testified as follows: I n 1 986 h e encountered financial difficulties and ag reed to accept a drug dealing o pportunity in L os Ang eles with

an o rg aniz ation. That same y ear, Smith moved to L as V e g as and continued w orking for the orga n iz ation. At some point, the
org aniz ation falsely accused Smith of stealing cocaine and told Smith that he n o w owed the
org aniz ation a b ig debt. Smith quit wor k ing for the org aniz ation and in 1989 Gino, a man from the org a

niz a t ion, found Smith a nd reminded him of the debt, say ing that “ i t h ad
to b e paid or else they we r e g o ing to g ive [ him] a fate worse than death.”

He resumed w orking f

or the o rg aniz ation, a

nd also beg an to look for a new house in a g ated community

. He found the house a t the F ountains a

nd arrang ed pay

ment t erms with Allen, which included g i v ing Allen eleven kilog rams of c o caine in ex chang e for the equity in t h e house. The eleven kilog r ams

were part of a t wenty kilog ram shipment

w h ich Smith had r e c e i v e d f r o m t h e org aniz ation and had decided to k e ep forS M I T H V

. B A K E R 14

himself. Sm i t h g ave Allen ten kilog rams o f cocaine, worth approx imately $ 200
, 0 00, on the same day that h e g ave Allen the $35,000 check. He cl a i med that Allen knew that the check was no g ood a

nd served o nly to make the transaction seem legi timate, and said he would not deposit it.

On Thursday

, October 4, 1990, Smith left the additional kilog ram of cocaine owed Allen in Allen’s bathroom sink, upstairs where Allen stay ed when he w as in t o w n for weekends. That same day

, Smith told the org aniz atio n that he had sold twe nty kilog r ams of cocaine and was keeping the money because he was “tired of working

for peanuts.”

B e tween 2:00 a.m. and 3:00 a.m. on the morning of F r iday

, October 5, w hile he was in bed with J udith, he was awakened by a tap on his toe. He then saw three men standing over his b ed, one of whom picked up a h a mmer Smith had been u sing the p revious nig ht a nd beg an slapping it in his hand and a sking Smith where the “stuff” w as. Another man, who h ad

a sawed-off shotg un, forced Smith to g o into the g ame room and made h im lay down a nd
st a y there. Smith subsequently discovered that his family

had been killed.

On F riday , after the murders, h e remembered receiving three phone calls from Yolanda. He stated that “I brushed her off like I had other
t hing s to do, a meeting I had to attend

. . . IS M I T H V

. B A K E R 15

really needed some time to sort this out. T h e re was too many loose e nds that I didn ’ t have answers to.” Smith stated that he did not g o to the police because he would have to tell the m about the d

rug s a n d because it looked like h e committed the crime a nd he knew they

wo u l d p u t him in jail. H e stated that he was also try ing to fig ure out i f Allen mig ht have been involved in the murders and mig ht have
p r o v ided the killers with k ey s to the house. He c alled Al l e n that F riday morning to see if he c ould find out from Allen’s voice if Allen

was involved in the murders. A fter the phone call, he decided that Allen was not involved.

At approx imately 4:00 p.m. o n F riday , Smith took some sleeping pills and lay down on the
g ame room floor by the c loset. Early Saturday morning

, he awoke to the sounds o f

someone coming into the g ame room. He thoug ht that the killers had r eturned and beg an swing ing the hammer at a man. He did n o t know it w as Allen because it w as d ark a nd Allen did not say any

thing during the attack.

Six months after the murders, Smith was arrested in California. When he was arrested, evidence was seiz e d w hich indicated that he was attempting to chang e his identity . Smith

was charg ed w ith three counts of murder withS M I T H V

. B A K E R 16

u s e of a deadly weapon a n d one coun t o f
atte m p ted murder with use of a deadly
weapon.

Id. at 650–53.

II. P rocedural History

A. Trial and Direct Appeal

A Nevada jury convicted Smith o f three counts of murder and one count of attempted murder. Smith I
, 881 P.2d at 653. The State alleg ed a sing le statutory ag g ravator, that the murders invo l v e d “torture [
, depravity of mind] o r the mutilation of the victim.” N ev. Rev. Stat. § 200.033(8). The jury imposed the death pena lty for Kristy ’ s and W endy ’s murders, life without possibility of parole for J udith’s murder, and a twenty -y ear term for the attempted murder o f F rank Allen, enhanced by a n additional twenty -y ear term for

use of a deadly weapon. S mith I
, 881 P

. 2 d at 653–54

. On d i r e ct appeal, the Nevada Supreme Court vacated the t w o death sentences a

nd ordered a n ew penalty hearing because it deemed I n struction 10, w h i c h instructed the jury on “depravity of mind,” u nconstitutionally vagu e. The court reasoned that this I nstruction failed to p roperly channel the jury ’s discretion. See id. a t 654–56.

At the sec o n d p e n alty hearing

, the State ag ain alleg ed a sing le ag g r avator p ursuant to N ev. Rev. Stat. § 200.033(8) and the c ourt ag ain used J ury I nstruction 10. B ut t h e court also added I n struction 11 to further define “depra v i ty o f mind.” Smith’s counse l moved to dismiss the ag g ravating circumstances as to Krist y , a rg uing there was insufficient evidence o f torture, mutilation, o r depravity of mind. SmithS M I T H V

. B A K E R 17

II
, 953 P.2d at 2 65. The trial court g ranted the motion in part, ruling t here was insufficient evidence of torture a nd mutilation. The court allowed the jury to consider depravity

o f m ind a s to Kristy ’s murder, but the jury considered a l l three theories of the ag g ravator for W endy ’s murder. Id. The special verdict form shows that the second j u ry f ound depravity of mind wi t h respect to Kristy ’s murder, a nd deprav i t y o f mind and mutilation w ith respect to W endy ’s murder. Id. T he second jury reimposed the death p e n a l t y

. Id.

Smith appealed, and the Nevada S u p r eme Court ag ain vacated the d eath sentence for Kristy ’s murder. Id. at 265, 267. The court r

uled that t h e instructions f or depravity -ofmind still failed to properly channel t h e j u r y ’s discretion in connection with the c harg es stemmin g from Kristy ’s death. Id. at 267. The court imposed a life sen t e nce without the possibility of parole for Kristy ’ s murder. Id. As to W endy ’s murder, the c ourt upheld the death sentence, concluding that
t h e j u r y i n s t r u c t i o n s c o n c e r n i n g m u t i l a t i o n w e r e constitutionally sound, and that there was sufficient evidence from w hich a r easonable jury could find mutilation bey ond a reasonable doubt. Id. at 267–68.

B. State P ost-Conviction Review P roceedings

Smith filed a pro pe r s t a t e habeas petition in Aug ust 1998. Several attorney s were se q u e n tially appointed to represent him—Gary Go w e n, David Schieck, Karen Connolly

, Cristina Hinds, a nd Christopher Oram—during the first post-conviction proceeding s. An amended petition a nd
two supplements were fi l e d o n Smith’s behalf. The state district court denied Smith’s post-conviction petition in 2005,S M I T H V

. B A K E R 18

and the Nevada Supreme Court a ff i r m ed that decision in 2006.

I n 2007, Smith filed a pro p er habeas petition pursuant to 28 U.S.C. § 2254 in federal c ourt. An attorney appointed to

r epresent Smith filed an a mended petition several months later. The federal district court stay e d the p r o c e e d ing s so Smith could return to state c ourt to ex haust additional claims. B ack in s t a t e court, Smith’s amended habeas petition was denied, and the Nevada Supreme Court affirmed that decision in 2010.

Smith t h e n r esumed pursuit of his federal claims. The district cou r t d enied his habeas petition in March 2014, but subsequently g ranted a Certificate o f Appealability for Claim 4 (ineffective assistance b y penalty -phase counsel for failing
to investig ate and present mitig atio n e vidence of Smith’s mental health). Smith timely filed a notice of appeal.

III. Standard of

Review

W e review de novo the district court’s order d en y ing Smith’s federal habeas petition. Rodney v. Filson

, 916 F .3d 1254, 1258 (9th Cir. 2019). Pursuant to the Antiterrorism a nd Effective Death Penalty Act of 1996 (AEDPA), we may g rant habeas relief on a claim a djudicated on the merits in state court o nly if the s tate court decision “was c ontrary to, o r in v o l ved an unreasonable application of, clearly e stablished F ederal l a w , a s determined by the Supreme Court of the United States
, ” o r if the decision “was based on an unreasonable determination of the facts in lig h t o f the evidence presented in the State court proceeding .” 28 U .S.C. § 2254(d)(1), (2). “[ A] ny federally r eviewable c laims that

were not adjudicated on the merits in state court are reviewedS M I T H V

. B A K E R 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 p etition asserts th a t his second penalty

- phase law y e r s w ere ineffective for failing to investig at e , develop, or present mitig ation evidence during the second penalty phase. Smith ex hausted this claim in state court, but the N evada Supreme C o u rt concluded that it h ad been procedurally defaulted. The claim was first presented in Smith’s second habeas petition and the state supreme court ruled it w as untimely pursuant to Nev. Rev. Stat. § 34.726(1), and successive pursuant to N e v

. Rev. Stat. § 34.810(2). Smith’s federal petition arg ued that the procedural d efault o f this claim should be ex cused pursuant to the test set f orth in Martinez , 566 U.S. at 10–17.

Martinez allows the procedural default of a claim to b e

ex c u sed under specific circumstances

. Id. at 17. To show

cause f or ex cusing a procedural def a u lt, Martinez requires
t h a t a petitioner show that the state sy stem in which h e initially broug ht his I A C claim r equired that the claim be raise d in initial-review collateral proceeding s, and that the
state did not permit the petitioner to raise the claim on direct appeal. R unningeagle

, 825 F .3 d a t 9 7 3. A petitioner must further show t h at the attorney who represented him in state post-conviction proceeding s p erformed deficient l y a nd thereby p rejudiced his case u nder the standard set o u t in S t r i c k l a n d v

. W

a s h i n g t o n , 4 6 6 U. S

. 6 6 8 ( 1 9 8 4 )

. Runningeagle , 825 F .3d at 973.S M I T H V

. B A K E R 20

I n support of his fe d e r a l petition, Smith arg ued that his lawy ers a t t h e first state post-conviction review proceeding

were ineffective because they failed to raise a n I A C-by -trialcounsel claim. Smith hig hlig h ted numerous facts available to trial counsel that he co n s i d er e d to be evidence of mental illness and arg u ed that h is p enalty -phase counsel should have raised evidence of mental illness in mitig ation. Among other thing s, Smith contended that his counsel should have a rg u ed that he eng ag e d in numerous fraudulent real estate deals over the y ears leading up to the murd e r s , t h at he had an outburst during his g u ilt phase testimo n y w h e re he threw newspaper articles at the jury

, and that he had insisted on testify ing at the trial even thoug h his e x planation of the circumstances surrounding the murders was obviously implausible.

Smith’s counsel retained t w o mental health ex perts a nd submitted their declarations in support of his federal petition. One e x pert o pined that Smith ex hibited a “delusional disorder of the g randiose ty

pe” since early a dul t h o o d

. This ex pert opined that individuals with delusional di sorder “cannot
escape their delusions or acting on t h e d e lusions,” and that the letter Smith left at the crime scene indicat i n g that intruders murdered his wife and step-daug hters was evidence of this, as was Sm i t h ’ s p ersistence in relating his version o f
events to the jury despi t e his intellig ence and despite the pate n t u n b elievability of his story

. The o ther e x pert’s declaration ag reed that Smith suffers from g ran diose delusions, and observed, “Smith s u ffers from c linically sig nificant psy chiatric difficulties

. . . far predat[ ing ] the above described crimes for which he has been convicted a nd sentenced[ ,] and [ ] these psy chiatric difficulties have had a nd continue to have a sig nificant impact o n M r

. S m i th’s ability
t o function in important areas of his life.” This e x p er t

ex p lained that Smith’s behavior “reflect[ s] mental h e a l thS M I T H V

. B A K E R 21

p roblems and distorted thinking ,” and that when the ex per t met wit h Smith, he “evidence[ d] specific paranoid a nd
g randiose delusions.” Smith submitted to psy chometric testing for a p re-g

uilt p has e c o mpetency interview in 1992, and that evaluation was f

iled in support of his federal h abeas petition. The competency assessment concluded that Smith

was competent to stand trial a n d that Smith did not s u f f e r from any acute or Ax is I mental disorders, althoug h it noted that he suffered from a mix ed p er s o nality disorder a nd display ed antisocial behavior, g randiosity

, and histrionic features during

the competency

interview.

The federal d istrict court considered this evidence a nd discussed it in an order c oncluding that Smi t h ’s I AC claim

was procedurally ba r r e d by N ev. Rev. Stat. § 34.726, Nevada’s timeliness rule, because Smith did n ot ass e r t t h is claim until he returned to state court to file his e x haustion petition. The district court also determined that Smith failed
to show that habeas c ounsel provided ineff e ctive assistance for purposes of satisfy ing the cause and prejudice components of Mart i n e

z 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 arg ues that the record establishes cause and prejudice to ex c use the pro c e d u r al default of this I AC claim, and further arg ues that the district court erred b y failing to g rant an evidentiary hearing before deny ing it. “A claim is procedurally d e f

aulted if it was rejected by the state
courts based on ‘independent’ a n d ‘adequate’ state procedural
g rounds.” R odney

, 916 F .3d a t 1 2 5 9 (citing Coleman v

. Thompson

, 501 U.S. 722, 729–32 ( 1 991)). B e cause the Nevada Supreme Court r e jected Claim F our as u ntimely a ndS M I T H V

. B A K E R 22

successive p ursuant to state law, we may not review it unless Smith demonstrates ca use to ex cuse the default and actual prejudice resulting from a violation of f ede r a l l a w. See id

. Specifically , Smith must show:

(1) the claim o f “ineffective assistance of trial counsel” was a “substantial” claim; (2) the “cause” consisted of there being “no counsel”

or only “ineffective” c ounsel during the
state collatera l review proceeding ; (3) the
state c o llateral r eview p roceeding was the “initial” review proceeding in re spect to t h e “ i n e f

f e ct i v e

- a s s i stance-of-trial- c o u n s el claim”; and (4) state law requ i r e s that an “ineffective assistance of trial counsel [ claim]

. . . be raised in an initial-review collateral proceeding

.

T r e vino v. Thaler

, 5 69 U.S. 413, 423 (2013) (emphasis omitted) (quoting M

artinez , 566 U.S. at 12–22).

W e first address Smith’s contention that he was e ntitled
to an evidentiary hearing

. See Tapia v. Roe
, 1 8 9 F .3d 1052, 1058 (9th Cir. 1999 ) ( reviewing a district court’s refusal to hold an evidentia r y h earing for abuse of discretion). Smith
must a lleg e a co l o r a b le c laim for relief on his I AC claim in order to obtain a remand for an e videntiary hearing

. W est v. Ry a n , 6 0 8 F .3d 477, 485 (9th Cir. 2010). The district court allowed Smith to submit the mental health declarations his lawy ers obtained in 2007 and the c ourt ex plicitly considered this ex tra-record evidence i n its order dismissing Smith’s Martinez claim. 1

1 Cf. Cu l len v. Pin h o lster , 5 6 3 U.S. 1 7 0 , 1 8 1

– 8 2 (2 0 1 1 ).S M I T H V

. B A K E R 23

Smith fails to de m o n s trate what additional f actual development would b e possible at an evidentiary hearing

. He
arg ues that his ex perts would b e allowed to further e x plain their opinions at a hearing , but they would also be subject to

cross ex amination. Neither of his e x perts had an opportunity
to conduct testing and only o ne of them interviewed S m i t h

. I f an evidentiary h earing were held, the State would be permitted to cross-ex amine Smith’s ex perts and introduce

ex p ert testim o n y of its own. According ly

, we conclude that Smith has not shown that he was prejudiced b y the lack of an evidentiary hearing

, and the district court did n o t a b u se its discretion by dismissing the Martinez claim without holding

one.

Turning to Martinez Step One, Smith must demonstrate th at his “underly

ing ineffective-assistance-of-trial-counsel claim is a substantial o ne, w hich is to say that the prisoner
must demonstrate that the claim has some merit.” Martinez
, 566 U.S. a t 14. Smith a

rg ues that the claim his penalty -phase lawy ers were ineffective is “substantial” because trial counsel failed to investig ate or present info rmation reg arding his history of mental illness. Smith a s s e rts that his lawy ers’ penalty

- phase investig a tion c onsisted solely of interviewing

a few family members o n the day they were scheduled to testify a nd presenting brief testimony reg arding Smith’s g ood character. He contends that no effort was taken to investig ate mental health issues, and that testimony from mental health

ex p erts would have ex plained h i s actions. B ecause no alternate def

e nse theory was ag g ressively pursued, Smith
arg ues that the failure to p r ovide a ny ex planation for the crimes g ave the jury

no reason to impose a life sentence.

The State responds that introducing Smith’s e x perts’ declarations at the penalty phase w ould have been tantamountS M I T H V

. B A K E R 24

t o ineffective assistance of counsel because it would hav e painted Smith as a con man and torpedoed his defense. I n the State’s view, the 1992 competency assessment was “both broad and deep.” I t w as also the only evaluation t h at included psy chometric testing

. T h e State acknowledg es the competency assessment showed elevated scales for a ntisocial behavior a

nd g randiosity with manic tendencies, but stresses that t h e competency assessment concluded Smith e x hibited

no acute or Ax is I mental disor d e rs a nd had no serious
cog nitive or affective p sy cholog ical disorder. I n short

, the State a rg ues that Smith was not prejudiced b y the failure to present other mental health evidence.

The stan d a rd for showing a claim is “substantial” is comparable to the standard for g ranting a certificate o f appealability pursuant to 28 U.S.C. § 2253(c)(2); a p etitioner “need show only that ‘jurists o f r eason could di sag ree with the district court’s resolution o f his constitutiona l c laims

. . . .’” Runningeagle , 825 F .3d at 983 n.14 (quoting MillerEl

, 537 U.S. at 327). Proving the meri ts of an I AC claim requires showing that: (1) “counsel’s re p r e sentation fell below an o b

jective standard of reasonable n e s s

. . . under prevailing professional norms”; and (2) “there is a reasonable probability that, b u t f

or counsel’s unprofessional e rrors, the result of the proceeding would have b een different.” Rodney

, 916 F .3d a t 1260 (quoting Strickland

, 466 U.S. at 6 88, 694).

1. Strickland P r ong One

W ith respect to the f

irst S trickland prong , def

i ci ent performance is performance that falls “below an ob j e ct ive
sta n d a r d of r e asonableness” and is outside of “the rang e o f competence demanded of attorney s in criminal cases.” Strickland

, 466 U .S. at 687–88 (quoting McMann v

.S M I T H V

. B A K E R 25

Richardson

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

measure of counsel’s p e r f ormance is determined by looking
at the “reasonableness under prevailing professional norms.” Id. a t 688. Professional no r ms are measured at the time o f counsel’s actions rather t h an by reference to modern norms. See Cullen v. Pinholster

, 563 U.S. 170, 196 (2011). This
assessment is made “from counsel’s perspective a t the time,”

so as “to eliminate the distorting e ffects of hindsig ht.” Strickland

, 466 U.S. at 689

. We “ defer to a lawy er’s strateg ic trial choices, [ but] those choic e s m u st have been made a fter counsel [ ] conducted r easonable investig ations or [ made] a reasonable decision that ma[ de] p articular investig ations
unnecessary .” Summerlin v. Schriro

, 4 27 F .3d 6 2 3, 630 (9th Cir. 2005) (quoting Strickland , 466 U.S. at 691).

During the April 1996 secon d penalty hearing

, counsel based Smith’s sentencing arg umen t on character evidence
very similar to the evidence presented at the first trial, and did
not arrang e or request a mental health eva luation of Smith. Smith’s first-chair counsel at the sec o n d penalty hearing

, Donald York Evans, a c k n owledg ed in a 2007 declaration filed with Smith’s federal habeas p etition that Smith was “an interesting case, psy cholog ically ,” and that when he first met Smith, Evans “wanted to do a complete psy cholog ical 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 g et any thing [ he] could use from an evaluation any

way .” Evans “suspected [ Smith] had schiz oid tendencies and a hig h I Q but that was just [ his] g u ess and [Smith] wouldn’t partici p a t e in an evaluation.” State habeas counsel’s 20 0 2 interview of second-chair counsel, Peter L aPorta, was consist ent. A sked whether “there [was]

a ny thing e lse that [ counsel f elt] should have been done for [ Smith’s] second penalty phase” L a Porta responded, “[ Y] es,S M I T H V

. B A K E R 26

to put it succinctly

. I was very uncomfo r t a b l e w ith the backg round i n f

ormation that [ had been] developed o n the family a n d t he family history

, military history

, educational history , any

psy cholog ical history .”

W e ag ree with Smith that the performance of his second penalty

- phase couns el w a s d eficient. T his is not a case in which counsel chose not to pursue mental health mi tig ation evidence because there were other defense theories to p ursue; indeed, the presentation made on Smith’s behalf at the second penalty phase was ex ceptionally sparse. The transcript reflects only about twenty -five pag es of testimony from three family members and three family f riends who testified about Smith’s char acter and his relationship with h is family

, even thoug h r ed flag s r eg arding Smith’s mental health were raised in the pre-trial competency assessment and by his behavior before and during trial. I t was incumben t u p o n counsel to investig ate Smith’s mental health even thoug h Smith denied mental illness. The record shows that S m ith’s lawy ers did
not conduct an investig a tion to ascerta i n t h e ex tent of any possible mental impairment, or to determine whether mental he alth could have been raised as a mitig ating factor at sentencing

. Counsel concluded that a n y psy cholog ical
assessment performed without Smith’s cooperation would be of little or n o v a l u e, but one o f the two ex pert d eclarations filed on Smith’s b e h alf in 2007 was prepared solely based on t h e ex pert’s review of the record. I f nothing el s e , a comparable report could have b een prepared at the time o f the sentencing without Smith’s participation. The a p p licable American B ar Association (AB A) g uidelines made clear that “[ t] he investig ation for p reparation of the sen t e n c ing phase

. . . should comprise efforts to discover a ll reasonably available mitig ating evidence.” AB A Guidelines 11.4 .1(C) (1989). The AB A g uidelines further specified that counselS M I T H V

. B A K E R 27

should c o l l ect a medical h istory ( including “mental a nd phy sical illness”) and investig a te a defendant’s social history in preparation f

or the penalty phase. Id. 11.4.1(2)(C). On the record before us, we do n o t h es itate to conclude that the failure to in v e s t ig a te Smith’s mental health history contravened the AB A g uidelines.

W e have said that “ strateg ic choices made after less than complete investig ation are reasonable precisely to the ex tent that reasonable prof

e s s i o n a l j u d g m e n t s s u

p port the limitations

on investig ation.” W

iggins v. Smith

, 539 U .S. 510, 521 (2003) (quoting Strickland

, 466 U.S. at 690–91). Smith’s counsel had g ood reason to be concerned about Smith’s mental state y et they acknowledg ed that they did not try to obtain a psy chiatr i c report, a p parently because Smith objected. W e do not minimiz e the d i f fi c ulty presented b y Smith’s failure to cooperate, b ut Smith had no o t h e r v iable defense a nd his inability to recog niz e that a nd submit to a mental health evaluatio n m ay well have been another indicator of a mental health disorder. The fai lure to pursue mental health mitig a tion evidence “ ig n o red pertinent avenues for investig a tion of which [ c ouns el] should have been aware.” Porter v. McCollum

, 558 U.S. 30, 40 (2009) ( per cur i a m). The r ecord d oes not demonstrate that counse l ’ s f ailure to investig ate was strateg ic. No alternate mitig ation evidence o r arg ument was proffere d t o the jury

, despite w hat appears to be ag reement among S mith’s a ttorney s that he may have suffered f r om some sort of mental illness. See Evans v

. Lewis
, 855 F .2d 631, 637 (9th Cir. 1988) (“Counsel’s failure
to investig a te [ a p etitioner’s] mental condition[

, despite prior notice

, ] c a n not be construed as a trial tactic.”); see also Hendricks v. Calderon

, 7 0 F .3d 1032, 1043 (9th Cir. 1 9 9 5 ) (“[ W ] here counsel is on notice that his client may be mentally impaired, c ounsel’s failure to investig ate his clien t’s mentalS M I T H V

. B A K E R 28

condition as a mi t ig a ting factor in a penalty phase hearing

, without a su p porting strateg ic r eason, constitutes deficient performance.”).

Our concurring colleag ue conclud e s that Smith’s

c o u nsel’s performance was n ot d eficient, cautioning that

cou n s e l ’s performance must not be judg ed with h indsig ht. Concurrence at 46–47. We do not doubt this rule, b ut in our vi e w i t i s the c oncurrence that misapplies it. B y conflating Strickland ’s p rong s one and two, the concurring o pin i on decides that it w a s p ermissible to f org o a psy cholog ical evaluation because, without Smith’s cooperation, his lawy ers g uessed that a p sy cholog ical assessment would be of “ no value.” Concurrence at 49–51. T here is no question that Smith’s failure to cooperate with a psy cholog ical evaluation would have hindered any effort to m u s t er p ersuasive mitig ating e vidence f

or the second penalt y phase, but this

comes into play at Strickland step t w o , w h en we consider whether counsel’s defic ient performance resulted in prejudice. At step o ne, we c onsider whether Smith’s lawy ers’ performance fell below a n o bjectively r e asonable standard, and that question is larg ely a f unction o f the choices that were available to counsel. Here, we consider the questions raised by Smith’s p re-trial competency evaluation and b y counsel’s

o w n observations o f Smith’s behavior; Smith’s p ersistent failure to recog niz e the implausibility of his trial testimo n y ; his concerning trial conduct; and the fact tha t there was almost nothing else to offer in defense o f the death p enalty

. On this record, it was unreasonable to forg o a psy cholog ical evaluation merely because Smith had confidence in his o wn mental h ealth and c ounsel assumed a n assessment w o uld be of little value. I ndeed, it is easy to imag ine that a defendant’s insistence that he is not ill may be a sy mptom of mental illness. The out-of-circuit cases the concurring opinion citesS M I T H V

. B A K E R 29

are not to the contr a r y

. See, e.g

. , Coleman v. Mitchell

, 244 F

. 3d 5 33, 544–46 ( 6th Cir. 2001) (disting uishing cases in which the failure to investig ate and present mitig ating evidence con s t i t

u t e d i n e f f e c t i v e a s s i s t ance, because defendant served as co-counsel and instructed counsel to pursue an alternate strateg y

); Johnston v. Singletary

, 162 F .3d 6 3 0, 642 (11 th Cir. 1998) (per curiam) (concluding that counsel’s decision to forgo psy chiatric testimony was strateg ic where defendant r efused to cooperate and his medical records contained substantial data reg arding his criminal history ).

W e conclude that Smith satisfied his burden o f demon strating a “substantial” arg ument that his second penalty

- phase counsel’s performance was deficient.

2. Strickland

P r ong Tw o

The second Strickland prong requires that Smith show “a reasonable probability that, but for c ounsel’s unprofessional
errors, the result of t h e p roceeding would have been different.” Strickland

, 466 U.S. at 6 94. The State arg ues that even if Smith had presented evidence to the jury showing he suffered from g randiose delusions as a result of his mix ed personality disorder, this mitig a tion evide nce would have paled in comparison to h is vicious attack on his w ife a nd step-daug hters. The Supreme Court h as cautioned that this ty pe of e vidence “is [ ] by no means clearly mitig ating

, as the jury mig ht have concluded that [ the defendant] w as simply bey ond rehabilitation.” Cullen , 563 U.S. at 201. Moreover, in this c ase, testimony f

rom a mental health ex p e r t would have opened the door to r ebuttal from a State ex pert witness. See id. I n lig ht of the ex t raordinarily brutal nature of the murders, Smith has not sh o w n t h at reasonable jurists wouldS M I T H V

. B A K E R 30

debate whether the result of Smith’s proceeding would have been different if mitig ation evidence had been pursued.

Our conclusion on this po i n t i s heavily influenced b y S mith’s failure to submit to a psy chiatric evaluation at t h e time of the penalty p hase, and by the fact that only limited evaluations could have been prepare d without Smith’s cooperation. W ithout the a b i l i ty to conduct psy chometric testing and p repare detailed in-depth personal interviews with Smith, any ex p ert’s opinion would have been compromised and necessarily

vulnerable to cross ex a mination.

T o support his federal petition, Smith relies on t h e opinions o f Dr. Paula L undberg -L ove and Dr. Richard Dudley t o a rg ue that counsel failed to investig ate, develop, and present mitig ating mental h ealth evidence. These ex perts connected Smith’s “delusional thinking ” with his long history of g et-rich-quick schemes and fraudul e nt dealing s. F o r

ex a mple, Dr. L undberg -L ove attributed Smit h ’s ex tensive history of f

r audulent schemes to his delus i o n s and “inflated

sense of self-worth.” She also jux taposed Smith’s numerous fraudulent schemes, rang ing from r eal e state deals to g emstone trading to check fraud, with h is incredulous protestations of innocence and claims that he had been set up at e v e ry turn. Dr. L

undberg -L ove n oted that despite Smith’s obviously precarious financial situation, he n e g o tiated a contract for the home in which the murders took p l ace. Among her conclusions, Dr. L undberg -L ove determined that Smith had “ persistent f

alse beliefs” relating to these schemes, and that he had “ex clusive i n s i ght or interpretation[ s] of the facts that w ill free him from his predicament.” Dr. L u ndberg

L ove concluded that Smith’ s schemes and plans, in lig ht o f the clear facts that h e “ n e v e r h ad sufficient resources toS M I T H V

. B A K E R 31

ex e c ute” them, “support[ ] the diag n osis of delusion al disorder.”

Dr. Dudley

, who ex amined Smith in prison, r e a c h ed similar c onclusions. Dr. Dudley ex plained that, when he met Smith, “it was clear that he is e x tremely brig ht,” but he “evidenced both a level of paranoid thinking and g r andiosity that compromised h is

. . . decision-making capabilities a nd judg m e n t.” He determined that Smith’s “g randiosity ” included “pu r s u i n g big real estate deals while he had no assets, a nd he apparently d id not succeed in any leg itimate deals.” L ike Dr. L u ndberg -L ove, Dr. Dudley connected Smith’s g r andiose thinking to his decision to move his family into a mansion “despite the fact that h is checking account h ad been closed for too many ov e r drafts, and despite him not having a ny means to pay the pending m o r t ga g e debt ag ainst the house.”

Contrary to Smith’s protestations that the info rmation related to h is mental health has “long [ been] recog n iz e d a s mitig ating ,” this evidence is not “clearly mitig atin g. ” F irst, thoug h it demonstrates Smith’s g r andiosity

, it focuses

ex tensively o n Smith’s u nlawful schemes. Fo r ex ample, in

one fraud de t ai led in Dr. L undberg -L ove’s report, Smith of f e r e d h a ndy man and remodeling services for a fee to homeowners, then d isappeared a fter receiving money f or the services. When confronted, Smith represented t o t he homeowners t h a t “the freig ht lines stole the cabinets he ordered, and he [ had to] travel[ ] to try to obtain the cabinets.” Ultimatel y , Smith never returned to finish the remodel, a nd the homeowners lost the mon e y they entrusted to Smith. I n another scheme, Smith and his brother, Harold, “ fronted
money to h o m e owners in foreclosure,” and, in return,

“ r e q uired that the homeowners provide

. . . their dee d a sS M I T H V

. B A K E R 32

security .” Smith and his brother then pocke t e d t h e homeowners’ mortg ag e pay ments, never applied the
pay ments to the mortg ag e, and sold the property t o t h ird parties. Dr. L undberg -L ove’s and Dr. Dudley ’s rep orts detailed other schemes i n which Smith attempted to obtain loans on real property w i t h f org ed deeds, attempted to sell property with forg ed deeds, and a ttempted to trade “valuable” amethy sts (which were of little value) for real e state in Tex as. Thus, while there is a chance the evidence “ may have served
to evoke s y

m p a t h y f or Smith or cast his culpability f o r the murders in a different lig h t,” there is an equal chance the jury would have d ecided that this evidence confirmed that Smith

was a h abitu a l f

raudster who “was simply bey ond rehabilitation.” Cullen , 563 U.S. at 201.

The e x perts focused on Smith’s delusional protestations of innocence, but these statements were n o t “ clearly mitig ating ” because they underscored that Smith was willing
to r elate u tterly implausible tales, as he did before the jury at trial. F or ex a mple, Dr. L undberg -L ove attested, “I n this case Mr. Smith’s note indicated several intru ders murdered his wife and stepchildren a

nd that he killed one of the intruders. The only b o dies found w e r e those of his wife a nd stepchildren. As unbelievable a s this recitation appeared, Mr. Smith per sisted in relating these facts to the jury

. . . . His delusional disorder compelled him to g o forward as he did in his testimony

, even thoug h p a r t of his story w as contradicted by r e ality .” W e cannot conclude there is a reasonable probability that the ex pert declarations, prepared with little o r

no c ooperation from Smith, and without the b e ne f i t o f thoroug h testing and an opportunity for full e valuation, would have chang ed the outcome of Smith’s penalty phase. See id. at 202.S M I T H V

. B A K E R 33

Smith a l s o arg u es that counsel spent only a few minutes preparing h i s m i tig ation witnesses prior to their testimony

. Bu t S m ith g losses over the fact that Evans traveled to L o s Ang eles prior to trial an d a t t e mpted to meet with Smith’s brother. Smith’s b r other d i d n ot appear at the meeting a nd l a ter refused to meet with Evans. Additionally

, Smith’s brother, mother, a n d father “were scheduled to testify at the penalty hearing

, b ut on the day of their scheduled testimony

, ” th e y d i d not appear. After a number of “frantic calls to the family

, they appeared at c ourt the nex t morning .” As a r esult, Evans “did not g et to meet with [ Smith’s] mom and dad until just before they testified.” F inally

, Smith fails to identify any additional mitig ation evidence that could or would have been provided by family members if a d ditional time had been invested. B ecause Smi t h d i d not meet his burden at Strickland Ste p T w o , the district court d id not err by ruling that Smith’s ineffective assistan c e o f counsel claim was procedurally

defaulted.

B. Claim Eight—

Strom berg

Error

Smith’s § 2 254 petition arg ues that because the Nevada Supreme Court invalidated the trial court’s depravity o f mind instructions in Smith I and Smith II

, Smith II ’s affirmance of
t he death penalty for W endy ’s murder was contrary to the clearly established federal law set forth in S tromberg v

. California

, 283 U.S. 3 59 (1 9 3 1 )

. Stromberg held that a verdict is subject to challeng e if a jury

, pres e n t e d with alternative theor i es of g uilt, may h ave r elied on an unconstitutional theory to reach its v e rdict. Id. at 367–68. Smi t h arg ues that it is unclear whether twelve jurors unanimously found “mutilation” to support the statutory ag g r avator because some of them may h ave relied sole l y onS M I T H V

. B A K E R 34

the invalid depravity -of-mind theory

. I f so, Smith a rg u es, his death sentence contravenes Stromberg

.

The State arg ued in federal court that Smith’s Stromberg claim w as procedurally defaulted. T h e district court disag reed, but it denied this claim on its merits. The district
court concluded that a ny error in t he depravity jury instruction was harmle s s b ecause there was “strong indication” the jury unanimo u s l y ag r eed on the mutilation theory

. O n appeal to our court, the State abandoned its procedural default arg ument. The State conceded this w aiver in its arg ument before our court, so we address the merits of Smith’s Stromberg claim. S ee United States v. P ridgette

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

To be elig ible for the death p e n alty

, N evada law r equired Smith’s second penalty -phase jury to find at least o ne ag g r avating circumstance that was not o u tweig hed by any mitig ating c ircumstances. Nev. Rev. St a t

. § 1 75.554. The sing le ag g ravating circumstance alleg ed in Smith’s case was that “the murder involved torture, d e p r a v i t y of mind or the mutilation of the victim.” See Nev. Rev. Stat. § 200.033(8). The trial court instructed the f irst penalty

jury that depravity of mind required:

an inherent deficiency of moral s e n se a nd rectitude. I t cons i s ts o f evil, corrupt a nd perverted intent which is devoid of reg ard for human dig nity and which is indifferent to human life. I t is a state of mind outrag e ously

, wantonly vile, horrible or inhuman.

I n Smith I

, the Nevada Su p re me Court concluded that this depravity instruction was unconstitutionally vag ue. 881 P.2dS M I T H V

. B A K E R 35

at 655–56. The court ex plained that its opinion in Robins v. State
, 7 9 8 P.2d 558 (Nev. 1990) had addressed the constitutionality of the v ery same depravit y

- o f-mind instruction, a

nd found it deficient. Robins relied on Godfrey

v. Georgia
, 446 U.S. 420 (1980) to r ule that the depravity instruction r equired “torture, mutilation or other serious a nd depraved phy sical abuse bey ond the act of killing itself, as a qualify ing requirement to an a g g ravating circumstance based in part u pon d epravity of mind.” Robins

, 798 P.2 d 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 g iven in Smith’s first penalty hearing was u nconstitu t i o nally v ag ue because “ the jury was not instructed that depravity of mind
must include torture, mutilation or other serious and depraved phy sical a

buse bey ond the act o f killing itself.” 881 P.2d
at 6 55

. Smith I also a cknowledg e d a u n animity problem was presented by the possibility that some of Smith’s jurors may have relied on the infirm instruction t o impose the death penalty

. Id

. B ecause the special verdict form did not require that the jury separately c onsider d e p r a vity

, or torture, o r mutilation; the court obse rv e d

, “ the jury in the instant case found in the d i sjunctive torture, depravity of mind, or mutilation and did not specify which of the three it found. I t therefore mig ht well h ave based its finding of the ag g ravating circumstance on de p r avity of mind.” Id

. The court f urther observed that because the jury found no other a g g ravating circumstances

, i t could not “reweig h the ag g ravating a

nd mitig ating evidence” to d e termine whether this error was harmless. I

d at 6 56

. T h e c o u rt vacated the two death
sentences and remanded for a second penalty -phase hearing

. Id

.S M I T H V

. B A K E R 36

The second jury was instructed:

You are instructed that the following f actors

are circumstances by wh i c h Murder of the F irst Deg ree may

be ag g ravated:

The murder involved t o r t ure, depravity o f mind or the mutilation of the victim.

The State is alleg ing depravity of mind in the murder of Kristy

Cox [ the twelve-y ear-old]

.

The State is alleg ing torture or depravity o f mind or mutilation i n the murder of W endy Cox [ the twenty -y ear-old]

.

The trial court g ave the second jury the same de p ra v i ty -ofmind instruction that Smith I had declared unconstitutionally
vag ue, I nstruction 10, and added I nstruction 11 to f urther define depravity of mind. I nstruction 11 premised depravity of mind on the undefined phrase, “serious and depraved phy sical abuse”:

I n order to find either torture or mutilation of

a v i ctim y ou must find that there was torture or mutilation bey ond the act of killing itself.

I n o rder to find depra v ity of mind y ou must find serious and d

e praved p hysical abuse bey o nd the act of killing itself.

The court separately d ef i n ed “torture” and “mutilate” in I nstructions 9 a

nd 12, but it did not further define the “serious and depraved phy sical abuse” required for depravity of mind.S M I T H V

. B A K E R 37

The trial court instructed the second jury : “y ou must be unanimous in y ou r f i n ding as to the ag g ravating circumstance,” but it did not instruct the jury that it had to be

un an i mous as to the u nderly ing theory supporting the
ag g r avating circumstance (torture, mutilation, or depravity o f mind). During defense counsel’s closing arg ument, the trial
court interrupted co u n s el to stress that there was only o ne statutory ag g rav a ting circumstance alleg ed, and that it h ad three subparts:

to t h e ex tent that Mr. Evans is say ing that there may be some confusion as to w h e t h e r there is one ag g ravating circumstance or more than one, he’s absolutely correct; there is only

one a g g ravating circumstance that is alleg ed by the State in this case, and that is composed of the subparts mutilation, torture or depravity of mind. I ’m g oing to correct what is a fairly b road instruction, which is I nstructio n Number 7, to specifically say , “The State has alleg ed that a

n ag g ravating circu m s tance is present in this c ase,” so there can be no doubt that it is one ag g ravating circumstance wit h three subparts. One o f t h ose subparts is

r e lated to one of the victims or is alleg ed b y the State with reference to one of the victims, all three of t h e s ubparts are alleg ed with reference to the other victim; but it is only o ne total ag g ravating circumstance.

Smith II , 953 P.2d at 266 n.4. I n its closing

, the prosecution
arg ued to the second jury that “if

. . . y ou are satisfied bey ond

a reasonable doubt that an a g g ravatin g f a c t or e x ists, a

nd it doesn’t have to be all of the parts of the circumstance, it canS M I T H V

. B A K E R 38

be one, in the case of Kristy

, or one or two or three in the case of W endy [ .] ” The second jury found “ depravity of mind” a s to Kristy ’s murder, and “depravity of mind” and “mutilation” for W endy ’s murder, and it reimposed the death penalty for both murders.

Smith c halleng ed I nstructions 10 and 11 on direct appeal from the second sentencing h earing

, and Smith I I invalidated the depravity instructions ag ain. The Nevada Supreme Court observed “[ s] ince R obins , this court has upheld sentences of death based o n

depravity of mind only w here there has been

ev i d e n c e o f mutilation or o f torture.” Id. at 266. T he court

ex p lained that to the ex tent “ Smith I may have created some confusion on the issue, depravity of mind, as an ag g ravator, may only be relied u pon where evidence of torture o r mutilation ex ists.” Id. at 2 6 6 n

. 3

. Smith II held that “jury instruction [ 11] is a d eparture f r o m w hat this c ourt has previously

determined is constitutionally acceptable,” i.e., it did not conform to the standard the Nev a d a S u preme Court adopted in Robins

. Id. at 267.

B e cause the second jury had “no g uidance” as to what constituted “serious and depra v ed phy sical abuse,” Smith II concluded “the jury instruction on depravity of mind failed to properly channel the jury ’s discretion in connection with the char ge s [ ] stemming from Kristy ’ s death. An ag g ravating circumstance based on d epravity of mind must include torture

or m u tilation bey ond the act of killing itself.” Id. a t 267 ( c i t ations omitted). F or K risty ’s murder, depravity of m i n d

was the State’s sole theory supporting a d e a t h

- elig ible
ag g r avator. Acco r ding ly

, the Nevada Supreme Court reversed the death sentence imposed for Kristy ’s murder a nd i m p o s ed a sentence of life imprisonment without the possibility

of parole. Id.S M I T H V

. B A K E R 39

This ruling left the ag g ravating circumstance in W endy ’s murder as the sole support for the d eath penalty

. The second jury checked box es nex t to “depravity of mind” a nd “mutilation” for W endy ’ s m u rder, and the Nevada Supreme Court affirmed the death penalty based on the jury ’s finding of mutilation in W endy ’s case. The court concluded that the instructions for mu t i l a tion w ere constitutionally sound a nd that s u ff i cient evidence supported the finding

, bey ond a reasonable doubt, that W endy ’ s murder involved mutilation. Id. at 267

– 6 8

. T he court did not address whether there was indication that the jury unanimously d ecided upon mutilation.

C. Strom berg Error

Smith arg ues that t h e Nevada Supreme Court’s decision
to u phold the death verdict for W endy ’s murder was contrary t o clearly established f

ederal law b ecause it was impossi b l e to tell whether the jury unanimously found mutilation. Nev. R e v

. Stat. § 200.033(8). T he State responds that the d e p r avity instruction was constitutionally sound under f e d e r a l law, and that the rule the Nevada Supreme Court set forth in Robins is a state law requirement th at is immaterial to relief under § 2254(d).

A c o n v iction is subject to challeng e where a jury was instructed on a lterna t i v e theories of g u ilt and it may have relied on an invalid one. Hedgpeth v. Pulido

, 555 U.S. 57, 58 (2008) (per curiam) (citing Stromberg v. California

, 2 83 U.S. 359 (1931)). I n Hedgpeth

, the Supreme Court observed that Y a tes v. United States
, 354 U.S. 298 (1957) ex tended Stromberg ’s rule to convictions b ased on multiple theories o f
g uilt where it is shown that one o f the prosecution’s theories

was not unconstitutio n al b u t was leg ally flawed. See Hedgpeth

, 555 U.S. at 60. Such is the case here. I n Smith II
,S M I T H V

. B A K E R 40

the Nevada Supreme Court invalidated the depravity -of-mind instructions used at Smith’s secon d p e n a lty hearing

, and we do not second-g

uess that determination. Smith II
, 953 P.2d at 267; see Estelle v. McGuire
, 502 U.S. 62, 68 (1991) (observing “it is not the p rovince of a f ederal habeas court to

r e e x a m i n e s t a t e

- c o u r t d e t e r m i n a t i o n s o n s t a t e

- l a w questions”). The State’s arg ument that the depravity -of-mind instructions comported wi t h federal law amounts to disag reement with the deg ree of s p e cificity the Nevada Supreme Court requires f or it s s t a tutory ag g ravator. The St a t e fails to ex plain why we would q uestion the Nevada Supreme Court’s state law requirement.

The jury was not instructed that it must ag ree on which o f the three underly i n g theories supported the statutory ag g r avator, o r that, per Robins

, it must find evidence o f mutilation or torture to find d epravity of mind. W e can see

no other c lues in the record—such as jury polling —indicating whether the jury unanimously ag reed on mutilation. F rom the jury ’s check marks nex t to “ depravity ” a n d “mutilation” on the special verdict form pertaining t o W endy ’s murder, it is impossible to tell whether the ju r y s p l i t their v otes b etween the invalid d epravity theo r y and the valid mutilation theory

. W e therefore conclude that Smith demonstrated Stromberg

error. See Hedgpeth

, 555 U.S. at 58.

I n Valerio v. Crawfo r d

, a n en banc panel of our court reviewed a jury ’s d eath verdict premised on two statutory

a g g ravators, one u nconstitu t i o n a l l y v a gu e a n d o n e permissible. 306 F

. 3d 742, 7 5 9 (9 t h Cir. 2002) (en banc). Our en banc court ruled that “[ a] state appellate c ourt cannot ‘affirm a [ trial] court without a thoroug h analy sis of the role

an invalid ag g ravating factor play e d i n t he sentencing process.’” Id. (quoting Stringer v. Black , 503 U.S. 222, 230S M I T H V

. B A K E R 41

(1992)). The court announced three avenues by which a state appellate co u r t c a n eng ag e in close appellate scrutiny of an invalid ag g ravator and affirm imposition of the death penalty

. Id

. F irst, a state appellate court m a y affirm by finding the

error h armless under the standard set forth in Chapman v

. California

, 386 U.S. 1 8 (1967). Valerio

, 306 F .3d at 756. T o do s o , the state appellate court must conclude, bey ond a reasonable doubt, that t h e same result would have been obtained without rely ing on the invalid ag g ravator. Id. Here, the State conceded at oral arg ument before our c o u r t , t hat Smith II did not eng a ge i n a Chapman harmless error analy sis.

Valerio ’s s e c o nd method for affirming a death verdict where a jury may h a v e r e lied on an invalid ag g ravator instruction is to re-weigh the a g g r avating and mitig ating evidence pursuant to Clemons v. Miss i s sippi
, 494 U .S. 738 (1990). Valerio , 306 F .3d at 757. Clemons described that a state appellate court may

set aside an invalid ag g ravator and re-weigh the r emaining ag g ravating and mitig ating f actors to determine whether an invalid instruc t i o n was harmless. Id. B ut it is clear the Smith II court d id n ot r e -weig h ag g ravating and mitig ating evidence because Nev. Rev. Stat. § 200.033(8)

was the sing le ag g ravating circums t a n ce alleg ed in Smith’s

case.

Valerio ’s third proffered method is a W alton analy sis, see W alton v. A r i

zona , 497 U.S. 639 (1990), in which a state appellate court “act[ s] a s a primary factfinder” by apply ing a corrected instruction to the evidence and determining de novo whether the state’s evidence satisfied the ag g ravator. Val e rio
, 306 F .3d at 757. This o ption was also unavailable in Smith’s

c a s e because, as we ex plained in Valerio

, a state appellateS M I T H V

. B A K E R 42

court may not undert a k e a W alton analy sis if the penalty

phase factfinder was a jury

. Id . at 758.

The Nevada Supreme Court failed to undertake any o f the options ex p lained in Valerio

, so there is n o question that it did
not eng ag e in close appellate scrutiny o f the invalid depravity instructions u sed at Smith’s second penalty hearing

. I nstead, the state court relied o n its conclusion that the evidence was sufficient to support the mutilation theory

. Smith II
, 953 P.2d
at 2 67–68. B ut as the court r ec o gn i z ed in Smith I
, 881 P.2d
at 6 55, sufficiency of the evidence is not the is s u e ; S mith’s
arg ument is that the jury

may not have been unanimous.

Valerio held t hat the resulting Stromberg error is not structural, so we do not assume prejudice. Rather, we assess the effect of the invalid d e p r avity instructions and resulting Stromberg e rror u nder the harmless e rror standard set forth in Brecht v. Abrahamson

, 507 U.S. 619 ( 1993). See Hedgpeth

, 555 U.S. at 61–62 (concluding that a Br e c h t harmless error analy sis is a

ppropriate where the jury was i n structed on alternative theories of g uilt 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 “g rave doubt” about whether “the actual inst r u c t ion had a ‘subs t antial and injurious e f fect or influence’ o n the jury ’s verdict, in comparison to what t h e verdict w ould have been if the narrowed instruction had been g iven.” Valerio

, 306 F .3d at 7 6 2 ; see also Hedgpeth

, 555 U.S. at 58. As the Nevada Supreme Court stated in Smith II
, the na rrowed construction of depravity o f m i nd based on Nev. Rev. Stat. § 200.033(8) “requir[ es] t o rt ure, mutilation or other serious and d epraved phy s i cal abuse bey ond the act of killing itself,

as a q ualify ing requirem ent to an ag g ravating circumstanceS M I T H V

. B A K E R 43

b a s e d in part upon depravity of mind.” Smith II
, 953 P.2 d
at 266 (quot i n g R o b ins
, 7 98 P.2d at 570). W e therefore
compare the resul t obtained with I nstructions 10 and 11
ag ainst “what the verdi c t w ould h ave been if the [ R obins ] instruction had been g iven.” Valerio , 306 F .3d at 762.

The jux taposition of the evidence pertaining to Kristy ’s murder and the evidence pertaining to W endy ’s murder leads

us to conclude that the invalid instruction did n o t h a v e a substantial and injurious e ffect o n the jury ’s verdict. The second jury heard the medical ex a miner’s testimony a bout the

ex tent of b oth of the murdered step-daug hters’ wounds. The medical ex aminer ex plained that Kristy

, ag e twelve, suffered four wounds— t h ree to the h ead, and one to the neck—and that there w as a lacer a t i o n o n h er fing er. T he medical

ex a miner then moved on to W endy ’s much more substantial injuries, a

nd told the jury that W e ndy suffered thirty -two blunt-force wounds to her head (including sku l l fractures), and that the ex tensive w ounds Wendy suffered demonstrated that she f

oug ht for her life. T he ex a m i n e r testified that W e ndy ’s w ounds appeared to have been inflicted with t h e claw end of a hammer, and that her left ear was n e arly cut in
two. Th e e x aminer found prominent abrasions on W endy ’s neck, and that she had defensive wounds on her h a n d s. Despite these brutal injuries, th e a ct ual cause of W endy ’s death was strang ulation. The me d ical e x aminer opined that Smith l i k e l y u sed hammer blows to subdue his victims a nd then strang led them to death. 2

2 On ap p eal, th e State arg u ed t h ere w as “ o v erw

h elm in g ev id en ce” of

m u tilatio n b ecau se Wen d y w as attack ed w ith th e claw en d o f a h am m er. T h e State o v erlo o k s th at th e j u ry w as in stru cted th at, u n d er Nev ad a law

, m u tilate “ m ean s to cu t of

f o r p erm an en tly d estro y a lim b o r essen tial p art

o f th e b o dy o r to cu t o f

f o r alter rad ically so as t o m a k e i m p e rf ect,” an dS M I T H V

. B A K E R 44

The numerous blunt-force woun d s t h a t f r a ctured W endy ’s skull, coupled with the medical ex a miner’s testimony that a larg e laceration inside her ear almost cut her outer ear in two, do n ot leave u s with g r a v e doubt about whether the jury

w o u l d have unanimously found mutilation. Photos a nd t h e medical e x aminer’s testimony g raphically illustrated that the wounds Wendy suffered radically altered essential p a rts o f her body

, and we are confident the invalid instruction did not have a substantial and injurious effect on the jury ’ s verdict.

V. Conclusion

S m ith persuasively a

rg u e d that the performance of his second penalty -phase counsel was d e f icient for failing to investig ate mental health mitig ation evidence, but he h as 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

. W e d e c line to g rant a Certificate of Appealability for any of the other c laims Smith briefed, and affirm the district court’s judg ment.

AF F IRMED.

th at “ to f i n d

. . . m u t i l a t i o n o f a v ictim y o u m u s t f in d t h at t h ere w as

. . . m u t i l a t i o n b ey o n d th e act o f k illin g itself .” In o th er w o rd s , it w as th e

ex ten t o f W en d y ’ s in

j u ries th at d eterm in ed w

h eth er m u t ilatio n ap p lied

, n o t th e m ean s u sed to in

j u re h er.S M I T H V

. B A K E R 45

N.R. SMI TH, Circuit J udg e , concurring :

The district court’s order d ismissing J osep h S m ith’s federal habeas petition should be affirmed. The majority g ot it rig ht in: ( 1) finding t h a t Smith failed to show he was prejudiced by the lack o f an evidentiary hearing

, a nd concluding that the district court did not abuse its discretion by dismissing his M

artin ez 1 claim w ithout holding an evidentiary hearing ; (2) cer t ify ing Smith’s eig hth c laim, which alleg es a violation o f the rule set out in Strombe r g v

. California

, 283 U.S. 359 (1931), and concluding that the Stromberg error in Smith’s jury instruction was harmless; a nd (3) declining to certify Smith’s remaining uncertified claims.

The district c ourt’s judg ment dismissing Sm i t h’s ineffective assistance of counsel (“I A C”) claim a s procedurally barred should also b e a ffirmed. However, I arrive at that conclusion via a diff erent route than the majority

. Unlike the majority

, I believ e Smith’s counsel’s performance during the second penalty -phase hearing w as not deficient u nder the first prong of St r i c k land v. W a shington

, 466 U.S. 668 (1984), a nd the r e fo r e find his I A C claim insubstantial. I write separately to address this point.

To establish cause a

nd prejudice to e x cuse the procedural default of h i s I A C claim, Smith must show, inter a lia

, that: “(1) the claim of ‘ineffective assistance of trial counsel’ was a ‘substantial’ claim; [ and] (2) the ‘cause’ consisted of there being ‘no c o u n s e l ’ or only ‘ineffective’ counsel during the
state collateral review proceeding .” Trevi n o v. Thaler

, 569 U.S. 413, 423 ( 2013) ( quoting Marti n e z , 566 U.S. at 13–18).

1 Ma rtin ez v. Rya n , 5 6 6 U.S. 1 (2 01 2 ).S M I T H V

. B A K E R 46

W i t h r e spect to Martinez Step One, Smith must “demonstrate that the underly ing ineffective-assistance-oftrial-counsel c laim i s a substantial one, which is to say that the p r isoner must demonstrate that the claim h as some merit.” Martinez
, 5 66 U.S. at 14. To establish the merits of an I AC claim, “[ t] h e Strickland standard r equires a showing of both deficient p erformance and prejudice.” R odney v. Filson

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

, 466 U.S. at 687).

A.

D eficient performance under Strickland is performance
t h at falls “below an objective standard of reasonableness

. ” 466 U.S. at 688. “I n any c ase presenting an ineffectiv e n ess claim, the p erformance inquiry m ust be whether counsel’s assista n c e was reasonable considering all the circumstances

. ” Id. (emphasis added). Althoug h “ [ p] revailing n o rm s o f practice as reflected in A merican B ar Association standards”
may serve as “g uides to determining w hat is rea sonable,

. . . they are o nly g uides.” Id. This is so, because no standards o r set of rules “can satisfactorily take acc o u n t o f the variety o f circumstances faced b y d e fense counsel o r the rang e o f leg itimate decisions reg ardi n g how b est to represent a criminal defendant.” Id. at 688–89.

Our “scrutiny of cou n s e l’s performance must be hig hly deferential,” because “[ i] t is all too tempting for a defendant
to second-g

uess counsel’s assistanc e a fter

. . . [ an] adverse sentence, and it is all too easy for a cou rt, ex amining counsel’s d efense after i t h as proved unsuccessful, to conclude that a particular act o r omission of counsel was unreasonable.” Id. at 689

. T h us, “[ a] fair assessment o f attorney performance req u i res that every effort be made toS M I T H V

. B A K E R 47

eliminate the distorting effects of hindsig ht, to reconstruct the circums t a nces of counsel’s challeng ed conduct, and to evaluate the conduct from c o u nsel’s perspective at the time.” Id. B ecause of the difficulty in c onducting this evaluation, we “must indulg e a strong p r e sumption that counsel’s conduct falls with i n t he wide rang e of reasonable professional assistance.” Id. ; s ee Cullen v. P inholster

, 563 U.S. 170, 196 (2011) (noting that “ Strickland specifically commands that a court ‘must indulg e [ the] strong presumption’ tha t counsel

‘ made all sig nificant decisions in the ex ercise of reaso n a b l e professional judg ment’” (alter a t i on in orig inal) (quoting Strickland , 466 U.S. at 689–90)).

Smith argu e s , and the majority a g rees, that Smith’s counsel’s performance during the second penalty -phase he ar i n g was deficient, because counsel failed to investig ate Smith’s mental health and retain an ex pert to opine thereon. Opinion at 26–29. I disag ree.

The majority correctly notes that c o unsel’s argu m e n t at the April 1996 penalty hearing was pr e d i cated o n character evidence similar to that presented at the first trial, and counsel did not arrang e or request a mental health evaluati o n o f Smith. Id. at 25. However, t he reason no mental health

ev al uation was arrang ed or requested is because Smith refused to c ooperate with, or su b m i t t o , any mental health evaluation. I ndeed, Donald York Evans, Smith’s first-chair counsel at the second penalty hearing , stated:

W h en I first was a

ppointed to represent J oe, I wanted to do a c omplete psy cholog ical workup on him. I discussed the idea with J oe, and he refused t o submit to any testing

. He insisted he was not cra z y

. J o e would haveS M I T H V

. B A K E R 48

none of it, and so I did not press the issue. There was no value in getting a m ental health expert if Joe was not going to p articipate. I wasn’t confide n t that I would g et any thing I

c o u ld use from an evaluation any way

. I suspected he had schiz oid tendenci e s and a hig h I Q but that was just my g uess a n d h e wouldn’t participate in an evaluation

.

I n Strickland

, the Supreme Court recog niz ed that “ [ t ] h e reasonableness o f c o unsel’s actions may be determined or substantially influenced by the d efendant’s own statements or actions

. Counsel’s actions are usua l ly based, quite properly

, on informed strateg ic choices made by the defendant and on information supplied b y t h e defendant.” 4 6 6 U.S. at 691 (emphasis added).

I n Campbell v. Kincheloe

, w e applied the above-stated principle in a habeas action broug ht by an i n mate convicted of three counts of ag g ravated murder and sentenced to death. 829 F .2d 1453, 1456–57, 1463 (9th Cir. 1987). T h ere, the defendant arg ued that his attorney s’ perform ance was deficient, because they “f a i l [ ed] to interview his family a nd childhood friends, classmates, a n d teachers.” Id. at 1463. However, the defendant had “specifi c a lly r equested his attorney s 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 dete rmined or substantially influenced by the defendant’s o wn statements or actions,” Strickland

, 466 U.S. at 691, we held that trial c o u n s e l s ’ performance was not deficient, because they abided b y t h e defendant’s wishes and the defen d a n t ’s wishes were

c o n sistent with “the professional judg ment of his attorney s that such interviews were unnecessary and w ould not haveS M I T H V

. B A K E R 49

m a d e a n y difference in the c o n tex t of the case.” Campbell

, 829 F .2d at 1463–64.

Re ly ing on the p rinciple discussed in Strickland a nd Cam p b e ll

, other c ourts h ave d eclined to find counsel’s performance deficient where a defendant refuses to c ooperate with a certain l i n e of investig ation a nd subsequently alleg e s

error based on the attorney ’s incomplete investig a tion into the frustrated li n e of inquiry

. See, e.g. , Coleman v. Mitchell

, 2 4 4 F

. 3d 533, 545–56 (6th Cir. 2001) (finding counse l ’s performance not deficient where, inter alia

, th e defendant “did not cooperate with counsel

. . . and refused to submit to further psy cholog ical or psy c h iatric testing ”); Owens v

. Guida

, 549 F .3d 399, 405–06, 411–12 (6th Cir. 2 008) (finding counsel’s performa n c e not deficient where “[ c] ounsel could have reasoned that additional investig ation would be of little use because [ the defendant’s] own actions [ (e.g

., r efusing to cooperate with mental health ex a m i n e r s)] shut off a venues for mitig ation”); John s t o n v. Singletary

, 162 F .3d 630, 642 (11th Cir. 1998) (per cu r i a m ) (finding counsels’ performance n ot deficient where, “despite his lawy ers’ e fforts to have [ the d ef endant] evaluated by a

. . . mental health ex pert[
, the d efendan t ] wa s steadfast in his resistance to meeting with this ex pert”); Thom p s on v

. W ainwright

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

. 1 9 8 6 ) (recogniz ing that a de fendant “ c annot blame the lack o f additional psy chiatric ex aminations o n incompetent counsel” where the defendant refused to “cooperate” w ith the previous
psy chiatrist).

The r e a sonableness of Smith’s penalty -phase counsel’s decision not to retain a mental health e x pert is “substantially influenced by [ Smith’s] own statement s [ and] actions.”S M I T H V

. B A K E R 50

Strickland

, 466 U .S. at 691. 2 Evans discussed the possibility of obtaining a psy cholog ical evalu a t i o n of Smith, but Smith refused to submit t o a ny such ex amination and adamantly insisted that he had no m e ntal health issues. Smith’s actions—i.e., his refusal to cooperate with, and submit to, any mental health e valuation —provided “ counsel reason to believe that p ursuing [ a mental health] investig ation[ ] would be f ruitless,” because any e x pert report prepared without Smith’s participation would, in counsel’s own wor d s , be o f little or “no value.” S

e e S trickland

, 466 U.S. at 691; see also Johnston , 162 F .3d at 642 (“[ W ]hen the strateg y an attorney mig ht o therwise pursue is virtually foreclosed by his c lient’s unwilling ness to facilitate that strateg ic option, it is d ifficult for [ a] court, in a c o llater al p r o ceeding

, to characteriz e a s ‘unreasonable’ counsel’s decision to abandon that otherwise preferable strateg y .”). Smith c annot n ow c o m plain that his counsel acted unreasonably by fai l ing to investig ate a nd present mental health evidence at his sentencing when it was

2 T h e m aj o rity arg u es th at I co n f late S trickla n d ’ s p ro n g s o n e an d t w o , b u t I co n sid er Sm ith ’ s “ o w n statem en ts [an d] a c t i o n s” in d eterm in in g

w h eth er Sm ith ’ s co u n sel’ s p erf o rm a n c e w as d ef

icien t. S t rickla n d

, 4 6 6 U.S

. a t 6 9 1

. In d eed

, th e m aj o rity co n ten d s th at, “ [a]t step o n e, w e

co n sid er w

h eth er Sm ith ’ s law

y ers’ p erf o rm an ce f ell b elo w an ob

j ectiv ely

reaso n ab le stan d ard

, an d th at q u estio n is larg ely a f u n ctio n o f th e ch o ices th at w ere av ailab le to co u n s el.” Op in io n at 2 8

.

Co n trary to th e m aj ority ’ s ar g u m e n t , th at is p recisely w h at I h av e d o n e h ere. Pu t sim

p ly

, Sm i th ’ s ref

u s al to co o perate w i th

, an d su b m it to , an y m en tal h ealth ev alu atio n p resen ted co u n sel w ith tw o ch o ices. C o u n sel

co u ld eith er retain a m en t al h ealth ex p ert to p rep are an ev alu atio n b ased

en tirely on th e reco rd

—w h ich co u n s el reco g n ized w o u ld b e o f little o r n o

v alu e—o r, co n sid erin g Sm ith ’ s ref u sal, co u n sel co u ld reaso n ab ly ch o ose

n o t to retain a m en tal h ealth ex pert to ren der a “ co m p ro m ised ” o p in io n th at w o u ld “ n ece ssarily [b e] v u ln erab le to cro s s ex am i n atio n .” Op in io n at 3 0

.S M I T H V

. B A K E R 51

Smith’s o wn actions that effe c t ively rendered any such evidence of “no value.” S ee Strickland

, 466 U

. S

. at 691; Johnston , 162 F .3d at 642.

B o t h S m i t h a

nd the majority a

rg ue that an ex p ert could have prepared a report without Smith’s participation based solely on the ex pert’s review of the record—a report similar
to that p repared by Dr. L u n db e rg -L ove in 2 007. B ut, a s discussed, Smith’s c o unsel recog niz ed that a report prepared without Smith’s participation and b ased solely on a r eview o f the record would be of “no value.” T h e majority a p p a r ently reaches the same conclusion, stating that “any e x pert’s opinion [ prepared without Smith’s cooperation] would have been com

p r o mised and necessarily v ulnerable to cross examination .” Opinion at 30 (emphasis added). Thus, counsel

ex e r cised reasonable professional judg ment in declining to retain an e x pert to render a compromised opinion that would have b een of little or no value. See Owens
, 5 4 9 F. 3 d a t 412 (finding counsel’s performance not de f i c ient where “[ c] ounsel could have reasoned that additional investig ation would be of little use because [ the defendant’s] own actions [ (e.g

., r efusing to cooperate wi t h m e ntal health ex a miners)] shut off a venues for mitig a t i o n”); cf. Jeffries v. Blodgett

, 5 F .3d 1180, 1198 (9th Cir. 1993) (recogniz ing that where “a defendant preempts his a t t orney ’s strateg y ” with his or her actions or statements , “no claim for ineffectiveness can be made” ( q u o t i ng Mitchell v

. Kemp
, 7 62 F .2d 886, 889 (11th Cir. 1985))).

Moreover, even assuming Smith would have participated in an evaluation, counsel was not “confident that [ he] would
g et any thing [ he] coul d use f

rom [ the] evaluation.” This judg ment is reasonable in lig ht of th e 1992 competency report, which was based on a t w o

- d ay evaluation of SmithS M I T H V

. B A K E R 52

and several psy chometric tests a nd found t h a t , despite a potent i a l mix ed personality disorder, Smith was “an intellig ent indiv i d ual without any serious cog nitive o r affective psy

cholog ical disorder[ s] ” and ex h ibited no “acute

or Ax is I mental disorders.” T he report concluded that Smith

was competent to stand trial and “competent at the time o f the alleg ed offense.”

Smith and the majority also r e ly on certain A merican B ar Associat i o n (“AB A”) standards to show counsel acted unreasonably

. Those standards r equire counsel to investig ate “all reasonably available mitig ati n g evidence,” AB A Guidelines 11.4.1(C) (1989), including any evidence of a defendant’s menta l i llness, see id. at 11.4.1(D)(2)(C). However, althoug h t h e AB A standards may “g uide[ ] ” the inquiry into whether Smith ’ s c ounsel’s performance was

r e a s onable, “ they are only guides .” Strickland

, 466 U.S. at 688 (emphasis added). As noted a bove, “[ t] he reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements o r actions .” Id.
at 691 (emphasis added). That is precisely wh a t h a ppened here. Smith’s actions “substantially influenced” the reasonableness of his counsel’s decision n o t t o conduct a

more in-depth investig ation into S mith’s mental health a nd mitig ated a

ny g uidance g leaned from the AB A standards. See id. ; see a lso Jeffries

, 5 F .3d at 1197–98 (finding counsel’s performance not deficient where counsel a cquie s c e d in the defendant’s decision “not to present any witnesses in mitig ation,” which contravened AB A standards).

Considering “all of the circumstances” and indu lg ing “a strong presumption that co u n s e l ’s c onduct falls within the

w i d e rang e of reasonable professional a ssistance,” Strickland

, 466 U.S. at 689, 691, Smith’s second penalty -phase counsel’sS M I T H V

. B A K E R 53

judg ment not to e ng ag e an ex pert to opine on Smith’s mental health is reasonable in lig ht of Smith’s refusal to c ooperate

w i t h any mental health ex pert. See Owens
, 549 F .3d at 4 0 6
, 411–12 (finding counsel ’ s p e r formance not deficient where “[ c] ounsel could have r easoned that additional investig ation would be of little u se because [the defendant’s] own actions [ (e.g

., r efusing to cooperate with mental healt h e x a miners)] shut off avenues f

or mitig a t ion”); Johnston

, 162 F

. 3d 642 (finding counsel’s performance n ot deficient where, “despite his lawy ers’ efforts to have [ the d efendant] evaluated by a

. . . mental health ex pert[
, the d efendant] was stead f a s t i n his resistance to meeting

with this ex pert”).

Therefore, Smith’s I AC claim is insubstantial, because it lacks merit. See Martinez
, 5 6 6 U .S. at 14. B ecause Smith
cannot establish cause and prejudice to ex cuse his procedural default under Martinez
, the district court did not err in holding that Smith’s I AC claim was procedurally defaulted.

B.

B e cause Smith’s second penalty -phase counsel ’s
per f o r m ance w as not deficient, I would not reach the prejudice prong of Strickland

. However, assumi ng that counsel’s performance wa s d e ficient ( as does the majority), Smith f ailed t o show “a reasonable probability that, but for

c o u nsel’s unprofessional errors, the result of the p roceedi n g would have been different.” Strickland , 466 U.S. at 694.