FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DWAYNE ANTHONY WOODS,

Petitioner-Appellant,

v.

STEPHEN SINCLAIR,

Respondent-Appellee.

No. 09-99003

D.C. No.

2:05-CV-00319-LRS

OPINION

On Remand From The United States Supreme Court

Filed August 25, 2014

Before: Richard A. Paez, Richard C. Tallman,

and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Paez;

Partial Concurrence and Partial Dissent by Judge Tallman
2 WOODS V. SINCLAIR

SUMMARY*

Habeas Corpus/Death Penalty

On remand from the United States Supreme Court, the

panel affirmed in part and vacated in part the district court’s

denial of a 28 U.S.C. § 2254 habeas corpus petition

challenging a conviction and capital sentence for two counts

of aggravated murder in the first degree and one count of

attempted murder in the first degree, and remanded for the

district court to consider in the first instance whether the

petitioner can show cause and prejudice under Martinez v.

Ryan, 132 S. Ct. 1309 (2012), excusing procedural default on

certain claims of ineffective assistance of counsel.

The panel held that the state court did not unreasonably

deny petitioner’s claim under Faretta v. California, 422 U.S.

806 (1975), because he had not made an unequivocal request

for self-representation.

The panel held that the state court did not unreasonably

deny petitioner’s claim that he was denied his Confrontation

Clause rights when the trial court admitted into evidence the

deceased victim’s statements to the police because they fell

within the medical diagnosis exception to the hearsay rule. 

The panel held that the state court unreasonably applied

White v. Illinois, 502 U.S. 346 (1992), by determining some

of the victim’s statements were excited utterances, but that

the error was harmless because those statements were

cumulative.

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

been prepared by court staff for the convenience of the reader.
WOODS V. SINCLAIR 3

The panel held that the state court’s decision was neither

contrary to nor an unreasonable application of Brady v.

Maryland, 373 U.S. 83 (1963), and did not involve an

unreasonable factual determination when the state court

denied petitioner’s contention that the prosecution should

have disclosed the crime lab’s DNA testing review process

(including peer review and destruction of erroneous draft

reports) because that evidence was not exculpatory.

The panel rejected as procedurally barred petitioner’s

claim of a Brady violation in the state’s failure to disclose the

full details of the spillage of one of petitioner’s blood samples

at the crime lab.

The panel affirmed the denial of several of petitioner’s

claims of ineffective assistance of counsel on the merits

and/or for lack of prejudice.

The panel agreed with the parties and the district court

that two of petitioner’s ineffective-assistance claims

regarding DNA evidence were procedurally defaulted. The

panel remanded to the district court so that it may determine

in the first instance whether these claims are substantial and

whether post-conviction-relief counsel was ineffective for

failing to raise them, thereby excusing, under Martinez, the

procedural default.

The panel vacated the district court’s ruling that the

petitioner’s claim that he received ineffective assistance when

his trial counsel failed to impeach witness Venus Shaver was

procedurally barred, and remanded so that the district court

may consider in the first instance whether the petitioner can

show cause and prejudice under Martinez. 
4 WOODS V. SINCLAIR

The panel affirmed the denial of relief on the petitioner’s

claim of cumulative deficiency.

Concurring in part and dissenting in part, Judge Tallman

wrote that because none of the petitioner’s new claims would

lead a reasonable juror to conclude that the petitioner did not

commit the murders or the attempted murder, no court can

provide the relief he seeks and the majority’s remand serves

only one purpose: unnecessary delay.

COUNSEL

Suzanne Lee Elliott, Law Offices of Suzanne Lee Elliott,

Seattle, Washington, and David B. Zuckerman, Law Offices

of David B. Zuckerman, Seattle, Washington, for PetitionerAppellant.

John Joseph Samson, Assistant Attorney General, Olympia,

Washington, for Respondent-Appellee.

OPINION

PAEZ, Circuit Judge:

In 1997, a Washington jury found Dwayne A. Woods

guilty of two counts of aggravated murder in the first degree,

one count of attempted murder in the first degree, and one

count of attempting to elude a police vehicle. After two days

of deliberation, the jury sentenced Woods to death. The

Washington State Supreme Court upheld his conviction and

sentence, State v. Woods, 23 P.3d 1046 (Wash. 2001), and

denied his petition for post-conviction relief, In re Woods,
WOODS V. SINCLAIR 5

114 P.3d 607 (Wash. 2005). Woods then filed a petition for

a writ of habeas corpus in federal district court, which was

denied. Woods appeals from the denial of habeas relief,

contending that (1) he was denied his Sixth Amendment right

to represent himself, (2) the state court’s admission of certain

evidence violated the Confrontation Clause, (3) the State

withheld material, exculpatoryevidence in violation of Brady

v. Maryland, 373 U.S. 83 (1963), and (4) his trial counsel’s

representation was ineffective.1 We have jurisdiction under

28 U.S.C. § 1291.

In a previous opinion filed on August 10, 2011, we

affirmed the district court’s order denying Woods’s habeas

corpus petition. Woods v. Sinclair, 655 F.3d 886, 891 (9th

Cir. 2011). On March 26, 2012, the Supreme Court granted

Woods’s petition for certiorari, vacated our opinion, and

remanded the case for further consideration in light of

Martinez v. Ryan, 566 U.S. —, 132 S. Ct. 1309 (2012). In

May 2012, we ordered the parties to file supplemental briefs

addressing the impact of Martinez and Sexton v. Cozner,

679 F.3d 1150, 1153 (9th Cir. 2012) on this case. That same

month, a petition for rehearing en banc was granted in

Detrich v. Ryan, 677 F.3d 958 (9th Cir. 2012). Detrich also

involved Martinez issues. The parties’ supplemental briefs

addressing Martinez and Sexton were filed before the en banc

1 Woods also alleges that the State violated his due process rights when

it misled the court and defense as to the progress of a DNA test during

several hearings. This claim, claim 6.1 in Woods’s federal habeas

petition, was not included in the Certificate of Appealability (“COA”). 

Although the prosecution failed to act with proper diligence in the

completion of the DNA testing, we agree with the State that there was no

prejudice from any failure to notify Woods of the reasons for the delay. 

Because we conclude that the claim lacks merit, we decline to grant a

COA.
6 WOODS V. SINCLAIR

court in Detrich filed its opinion on September 3, 2013. 740

F.3d 1237, 1262 (9th Cir. 2013) (en banc). We ordered

further supplemental briefing on the impact of Detrich. The

parties’ supplemental briefs were filed on September 27,

2013. With the exception of the claims affected by Martinez,

we again affirm the district court’s rulings on the remaining

claims for all the reasons set forth in our original opinion. 

We vacate the district court’s ruling as to the claims affected

by Martinez and remand for further proceedings in light of

that case.

I. THE CRIME2

On Friday, April 26, 1996, Telisha Shaver was housesitting at her aunt’s trailer home in Spokane Valley,

Washington. Telisha3planned to spend the night at her

boyfriend’s home, but had agreed to let her sister, Venus, and

Venus’s friend, Jade Moore, spend the night at the trailer. 

Venus and Jade arrived at the trailer at approximately 1:45

a.m. on Saturday morning. The women drank alcohol and

socialized. At some point, Venus and Jade decided to contact

Dwayne Woods, whom Venus had previously dated. After

the women paged Woods, he eventually joined them at the

trailer. By that time, approximately 4:20 a.m., Jade was

asleep.

2 This factual background is taken largely from the Washington State

Supreme Court’s opinion affirmingWoods’s conviction and sentence. See

Woods, 23 P.3d at 1053–59.

3

In this opinion we frequently refer to Telisha and Venus Shaver by

their first names for the sake of clarity. We also refer to Jade Moore by

her first name to avoid confusion with her father, Barry Moore.
WOODS V. SINCLAIR 7

While at the trailer, Woods served himself alcohol and

talked with Venus. According to Venus’s testimony, Woods

was upset that Jade was asleep and urged Venus to wake her

up. Venus tried to wake Jade up, but Jade did not respond. 

At this, Woods became irate and, according to Venus, shoved

her onto the couch and attempted to unbutton her pants. 

Venus said that she initially escaped Woods’s grasp, but that

he managed to grab her again and then slammed her head and

neck against a door. Venus testified that she has no memory

of what transpired from that point forward except for

intermittent flashes of memory in which she recalls struggling

with Woods.

At approximately 7:30 a.m., Woods forced Jade to wake

up at knife point. He took her to another one of the

bedrooms, where Venus lay unconscious and severelybeaten. 

Woods forced Jade to help him loot the trailer and to give him

her ATM card and personal identification number. He then

raped Jade orally and vaginally.

During the attack on Jade, Telisha returned to the trailer

to retrieve some personal effects. Woods seized and bound

her. Jade, who was laying on the floor and feigning

unconsciousness, later stated that she heard a baseball bat hit

Telisha’s head. Jade said that she was then hit in the head

with the bat, knocked unconscious, and had no memory of

what happened after that point.

When Telisha failed to return home that morning, her

mother, Sherry Shaver, decided to go to the trailer to check

on her. She arrived at approximately 10:25 a.m. and found

the door locked. Peering through a window in the trailer, she

saw a man—whom she later identified as Woods—exiting

from the other side of the trailer. She pounded on the locked
8 WOODS V. SINCLAIR

trailer door, and Jade, naked and beaten, eventually opened

the door. Sherry Shaver called 911.

Emergency personnel arrived at the trailer and took the

victims to the hospital. While en route to the hospital, Jade

told a paramedic about the events of the prior evening. At the

hospital, she also told her father, the emergency room

physician, and a nurse about what had transpired. Of the

three victims, only Venus survived. Telisha died without

ever regaining consciousness. Despite initially responding to

medical treatment, Jade died the following day.

Shortly after Sherry Shaver reported seeing Woods leave

the trailer, he was seen at two local businesses close to the

crime scene. At one of those businesses, Woods convinced

another patron to drive him to downtown Spokane. Within

close proximity to where Woods was dropped off, a series of

cash machine withdrawals occurred with the use of Jade’s

ATM card.

At approximately 12:30 p.m. that same day, Woods ran

into his brother-in-law, Louis Thompson, at a grocery store

in the downtown area. Thompson gave Woods a ride to the

home of Woods’s friend, Johnny Knight. Knight and his

friend, Mary Knapp, testified that when Woods came to their

home, he offered to sell them some jewelry and to buy one of

Knight’s automobiles.

Woods spent the night at Elizabeth Gerber’s apartment. 

The following morning, Gerber asked Woods to leave the

apartment. At trial, she testified that Woods became agitated

and said he was “a wanted man” and she was “putting him on

the streets.”
WOODS V. SINCLAIR 9

Later that day, Knight heard a television broadcast that

authorities were searching for Woods. In response, Knight

called the police and agreed to lead them to Woods. With

Knight’s cooperation, sheriff’s deputies followed Knight as

he went to pick up Woods. After Knight picked Woods up,

the deputies pulled the car over. Knight got out, but Woods

jumped into the driver’s seat and sped away. The deputies

eventually caught, arrested, and interrogated him.

Woods told the interviewing detectives that he fled

because he had a number of “outstanding traffic violations”

and some “traffic warrants.” At the time of his arrest, Woods

had no outstanding traffic violations. Woods denied any

responsibility for the crimes and claimed he had not been in

contact with Venus for about a week. He further denied

knowing a woman named Jade. He also told detectives that

he had not been in Spokane Valley for about a month, that he

had never visited a trailer home, and that there was no logical

explanation of why his fingerprints would have been found in

the trailer.

II. PRE-TRIAL PROCEEDINGS

Woods was charged with two counts of aggravated first

degree murder, one count of attempted first degree murder,

and in the alternative, one count of first degree assault.4 At

his arraignment on May 30, 1996, Woods pleaded not guilty

to the charges and waived his right to be tried within sixty

days of his arraignment, but not later than November 12,

1996. The trial was set for October 21, 1996.

4 The State later amended the information to include a charge of eluding

police.
10 WOODS V. SINCLAIR

In the meantime, the prosecution processed the physical

evidence in the case. Doctors had completed “rape kits” for

all three victims, including taking a swab from the vagina of

each victim. The rape kits were sent to the Washington State

Patrol Crime Laboratory (or “WSPCL”) in Spokane. At the

Spokane lab, William Morig examined the swabs in search of

sperm cells that might contain the DNA of the murder

suspect. Morig found no sperm on the swab taken from

Venus Shaver, but found usable samples from the swabs

taken from Telisha Shaver and Jade Moore. The prosecution

also obtained a vial of Woods’s blood to use in DNA tests. 

That sample was sent to the Spokane lab as well. The

WSPCL in Spokane did not have the required DNA testing

equipment, so Morig’s responsibilities were limited to

preparing DNA samples from the rape kits and Woods’s

blood that could be submitted to other labs for DNA testing

and analysis.

On August 23, 1996, Woods’s defense counsel moved for

a continuance of the trial date based on the fact that they had

not received the DNA test results and that they needed

additional time to produce mitigation evidence. Although

Woods objected to this motion, defense counsel argued that

unless a continuance was granted, Woods would be unable to

receive a fair trial. The trial court ultimately granted the

motion and reset the trial date for March 17, 1997.

On October 16, 1996, the prosecutor informed the court

that the DNA evidence had not yet been sent for testing. The

prosecutor represented that the results from the testing would

be received by January 1, 1997. Consequently, the court

ordered that the DNA test results be disclosed to the defense

by January 1, 1997. The prosecutor also informed the court

that the vial of Woods’s blood had been mistakenly frozen
WOODS V. SINCLAIR 11

and had cracked. The prosecution therefore needed a new

blood sample for testing purposes. Woods objected to

providing a new sample and renewed his objection to having

the trial commence after the original date of October 21,

1996. The court overruled both objections.

By January 2, 1997, the WSPCL had returned only one of

two DNA test results. That test, performed by a private

company, showed that Woods was not the source of semen

found in Telisha’s body. At a hearing on January 13, 1997,

the prosecutor informed the trial court that the testing of the

sperm sample taken from Jade Moore was not complete. 

WSPCL performed that testing at its more advanced Seattle

laboratory because it required a complex testing procedure. 

The prosecutor informed the court that the test would not be

complete until the middle of February 1997. Defense counsel

moved to exclude admission of the DNA evidence as a result

of the delay, to dismiss the case because of prosecutorial

mismanagement, and to continue the case in order to have

time to adequately prepare for trial in light of the delay in

DNA testing. The trial court denied the first two motions but

granted the last and continued the trial to May 19, 1997. 

Before trial, WSPCL returned the results of the DNA testing

performed in Seattle, which showed that the DNA taken from

Woods’s second blood sample matched the DNA taken from

the sperm recovered from Jade Moore.

III. GUILT PHASE PROCEEDINGS

At trial, Venus and SherryShaver identified Woods as the

assailant. The jury also heard Jade’s statements, including

her identification of Woods, via the testimony of a paramedic,

nurse, and doctor who treated Jade and the testimony of her

father, Barry Moore, who spoke to Jade after the attack. Dr.
12 WOODS V. SINCLAIR

John Brown, a forensic scientist at WSPCL’s Seattle

laboratory, testified that the sperm recovered from Jade

contained Woods’s DNA. A fingerprint expert testified that

Woods’s fingerprints were on a bottle and a telephone found

in the trailer. The jury also learned that Woods’s coat and

shirt were found at the trailer and saw paging and telephone

records demonstrating that Woods’s pager had been called

from the trailer several times during the early hours of April

27, 1996.

The defense theory was that Woods could not have

murdered Telisha and Jade or assaulted Venus because he

was dining at a bar in downtown Spokane at the time the

crimes occurred. To support this alibi defense, the defense

presented testimony from an expert on eyewitness

misidentification and from a bartender who testified that he

saw Woods at a downtown bar on the evening in question.

The jury found Woods guilty of two counts of aggravated

murder, one count of attempted murder, and one count of

attempting to elude police officers.

IV. PENALTY PHASE PROCEEDINGS

Woods instructed his attorneys not to present any

mitigating evidence at the penalty phase of the trial. 

Concerned about Woods’s mental state, defense counsel

requested a continuance of the penalty phase in order to have

Woods’s mental capacity assessed. The trial court denied the

motion and ordered the trial to commence that afternoon. 

The prosecution offered the testimony of Sherry Shaver and

BarryMoore, presented photographs of Telisha and Jade, and

entered into evidence certified judgments of Woods’s prior

convictions.
WOODS V. SINCLAIR 13

Pursuant to Woods’s instructions, defense counsel did not

present any mitigating evidence. Woods did, however,

invoke his right to allocution and made the following

statement to the jury:

Well, ladies and gentlemen, you heard from

[the prosecutor] and so you know that he’s

asking that you impose the death penalty. I

just want to say that I have no objection. 

Also, I just want to remind you that a few

weeks back during individual voir dire each of

you was asked if you could, in fact, impose

the death penalty. I believe at that time each

of you said you could impose the death

penalty providing there’s not sufficient

mitigating circumstances.

So I am here to tell you there’s absolutely

none, not one. So I ask that each of you go

back and return a vote to impose the death

penalty. Thank you.

After deliberating for two days, the jury found that there were

insufficient mitigating circumstances to merit leniency. 

Woods was sentenced to death.

V. STATE AND FEDERAL POST-CONVICTION

PROCEEDINGS

The Washington Supreme Court affirmed the convictions

and sentence on direct appeal. See Woods, 23 P.3d at 1079. 

The Supreme Court denied certiorari. See Woods v.

Washington, 534 U.S. 964 (2001). Woods then filed a

personal restraint petition (“PRP”) in the Washington
14 WOODS V. SINCLAIR

Supreme Court. Woods raised eighteen claims for relief,

including an ineffective assistance of counsel (“IAC”) claim,

a Brady claim, a claim that the jury had been improperly

prohibited from viewing certain evidence, and a claim that

newly discovered evidence required a new trial. The

Washington Supreme Court denied Woods’s petition. See In

re Woods, 114 P.3d at 611.

Woods next filed a federal habeas petition. The State’s

answer raised a number of procedural-bar defenses, including

a claim that Woods had not properly exhausted his claims. 

The district court bifurcated the briefing to first determine

whether any of Woods’s claims were procedurally barred. 

On the basis of this first round of briefing, the district court

concluded that some portions of Woods’s IAC claims and

Brady claims were procedurally barred. The court then

considered Woods’s remaining claims on the merits, and

ultimately dismissed the petition in its entirety.

Woods filed a timely notice of appeal and moved for a

COA on all of his claims. The district court granted a limited

COA, the scope of which we address below.

VI. STANDARD OF REVIEW

We review de novo a district court’s denial of a prisoner’s

petition for habeas relief. Brown v. Ornoski, 503 F.3d 1006,

1010 (9th Cir. 2007). The district court’s findings of fact are

reviewed for clear error. Id.

Because Woods filed his federal habeas petition after

1996, the Anti-Terrorism and Effective Death Penalty Act of

1996 (“AEDPA”) governs this action. See id. The AEDPA

requires federal courts to defer to the last reasoned state court
WOODS V. SINCLAIR 15

decision. Id. A federal court may grant a state prisoner’s

habeas petition with respect to a claim that was “adjudicated

on the merits in State court proceedings” only if the

adjudication “(1) resulted in a decision that was contrary to,

or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court

of the United States; or (2) resulted in a decision that was

based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding.” 

28 U.S.C. § 2254(d).

A state court decision is “contrary to” federal law if it

applies a rule that contradicts the governing law set forth in

Supreme Court cases or if it “confronts a set of facts that are

materially indistinguishable from a decision of [the Supreme]

Court and nevertheless arrives at a result different from

[Supreme Court] precedent.” Williams v. Taylor, 529 U.S.

362, 405–06 (2000). A state court decision involves an

“unreasonable application” of federal law if “the state court

identifies the correct governing legal rule from [the Supreme]

Court’s cases but unreasonably applies it to the facts of the

particular state prisoner’s case” or if it “either unreasonably

extends a legal principle from [the Supreme Court’s]

precedent to a new context where it should not apply or

unreasonablyrefuses to extend that principle to a new context

where it should apply.” Id. at 407.

In assessing under section 2254(d)(1) whether the state

court’s legal conclusion was contrary to or an unreasonable

application of federal law, our “review . . . is limited to the

record that was before the state court that adjudicated the

claim on the merits.” Cullen v. Pinholster, 131 S. Ct. 1388,

1398 (2011). We consider circuit precedent for the limited

purpose of assessing what constitutes “clearly established”
16 WOODS V. SINCLAIR

Supreme Court law and whether the state court applied that

law unreasonably. Clark v. Murphy, 331 F.3d 1062, 1069

(9th Cir. 2003), overruled on other grounds by Lockyer v.

Andrade, 538 U.S. 63 (2003).

VII. SELF-REPRESENTATION

Woods contends that he made an unequivocal request to

represent himself and that the trial court was thus obliged

under Faretta v. California, 422 U.S. 806 (1975), to conduct

a colloquy to determine whether his request was voluntary,

knowing, and intelligent. The court’s failure to do so, Woods

argues, violated his Sixth Amendment right to selfrepresentation. On direct appeal, the Washington State

Supreme Court concluded that Woods had failed to make an

unequivocal request. See Woods, 23 P.3d at 1061–62. The

district court agreed, and we affirm.

Under Faretta, a criminal defendant may invoke the right

of self-representation by making an unequivocal request, and

knowingly and intelligently waiving the right to counsel. 

Faretta, 422 U.S. at 835. Here, during pre-trial proceedings,

Woods twice informed the court that he opposed any

continuance of the trial date. First, on August 16, 1996,

Woods informed the court that he opposed any extension of

time for the prosecution to file its notice of special sentencing

proceeding5

or any further continuance of his trial date. On

5 Under Washington law, when a criminal defendant is eligible for the

death penalty, the State is required to file a notice of special sentencing

proceeding within thirty days after the defendant’s arraignment. Wash.

Rev. Code § 10.95.040(2). If that notice is not timely filed, the State may

not seek the death penalty. Id. § 10.95.040(3). On direct appeal, Woods

argued that the State had failed to comply with this requirement, and that

he was therefore entitled to a new trial. See Woods, 23 P.3d at 1062–63. 
WOODS V. SINCLAIR 17

August 23, 1996, Woods again expressed his opposition to

any further continuance when his defense counsel requested

that the trial date be pushed back to May 5, 1997, as a result

of the delay in processing the DNA evidence. The following

colloquy then took place:

[DEFENSE COUNSEL]: I think the only

effective date we can ask for right now is the

5th of May of ‘97.

WOODS: Your Honor, you know, I will

be—I will be prepared to proceed with—with

this matter here without counsel come

October 21st.

THE COURT: All right. You understand you

have the right to do that.

WOODS: Yes.

THE COURT: Counsel, have you discussed

this with your client?

[DEFENSE COUNSEL]: No. We have not

discussed that point at all. It’s a surprise to

me.

The Washington Supreme Court rejected that argument, among others, in

a 5-1 opinion. Id. at 1063. Justice Sanders’s dissent, however, concluded

that the State had indeed erred and that such error required the court to

vacate Woods’s death sentence. Id. at 1079–81 (Sanders, J., dissenting). 

Woods did not raise this state law issue in his federal habeas petition.
18 WOODS V. SINCLAIR

WOODS: I’ve—I’ve already consented to

one continuance, Your Honor. And

they—they have done nothing but grossly

misuse that time there. And I feel if—if they

was granted a second continuance, it—it

would be treated in the same manner, Your

Honor.

THE COURT: All right. Thank you.

Shortly afterward, the prosecutor stated that “the defendant is

indicating he wants to proceed pro se.” The trial judge

replied: “He didn’t indicate that. He indicated he was able to

do that.” Nobody made any further references to Woods’s

request to proceed pro se throughout the remainder of the

hearing.

On August 29, 1996, one of Woods’s attorneys

acknowledged in a written submission to the court that he was

aware of Woods’s desire for a “prompt resolution” of the

case. On August 30, 1996, Woods’s defense team renewed

their request for a continuance. At a hearing on the motion,

the judge stated: “I’ve heard Mr. Woods’s point of view and

I take it, it is unchanged. Is that correct?” Woods responded,

“Yeah.” The trial judge nonetheless granted the motion to

continue the trial to March 17, 1997.

In concluding that Woods’s request was equivocal, the

Washington State Supreme Court analogized his request to

that made by the defendant in State v. Luvene, 903 P.2d 960

(Wash. 1995). There, frustrated by his attorney’s request for

a continuance, the defendant addressed the court directly and

stated:
WOODS V. SINCLAIR 19

I’ve been here since July . . . . You know, I

don’t wanna sit here any longer. It’s me that

has to deal with this. If I’m prepared to go for

myself, then that’s me. You know, can’t

nobody tell me what I wanna do. They say I

did this, so why not—if I wanna go to trial,

why can’t I go to trial on the date they have

set for my life? I’m prepared. I’m not even

prepared about that. I wanna go to trial, sir

. . . .

I don’t wanna extend my time. This is out of

my league for doing that. I do not want to go. 

If he’s not ready to represent me, then forget

that. But I want to go to trial on this date.

Id. at 966. In Luvene, the Washington Supreme Court

concluded that these statements, taken in the context of the

record as a whole, could be seen only as an “expression of

frustration by [the defendant] with the delay in going to trial

and not as an unequivocal assertion of his right to selfrepresentation.” Id.

Noting the similarities between the statements in Luvene

and Woods’s statement, the Washington State Supreme Court

held:

Woods’s statement cannot be viewed as an

unequivocal statement of his desire to proceed

to trial pro se. His statement, like that which

we examined in Luvene, merely revealed the

defendant’s displeasure with his counsels’

request to continue the trial for a lengthy

period of time. Woods, like the defendant in
20 WOODS V. SINCLAIR

Luvene, was undoubtedly frustrated by the

delay, and his statement to the trial court

appears to have been an expression of those

feelings.

. . .

We are satisfied that telling a trial judge he

“will be prepared to proceed without counsel”

is qualitatively different than telling a judge

that one wishes to proceed pro se. Woods’s

comment was in the former category and was

not an expression of an unequivocal desire to

represent himself. We conclude, therefore,

that he was not denied his constitutional right

to proceed pro se and is not entitled to a new

trial on that basis.

Woods, 23 P.3d at 1062.

We conclude that the Washington Supreme Court’s

determination that Woods’s pre-trial statement, as quoted

above, was “not an expression of an unequivocal desire to

represent himself,” id., was not “an unreasonable

determination of the facts,” 28 U.S.C. § 2254(d)(2). Cf.

United States v. Kienenberger, 13 F.3d 1354, 1356 (9th Cir.

1994) (expressly considering as a question of fact whether a

defendant made an unequivocal Faretta request). Although

it is not apparent what factual basis the Washington Supreme

Court relied on to conclude that Woods was merely

expressing “frustration,” we cannot say, in light of the state

trial court record, that the court’s holding was unreasonable. 

Shortly after Woods stated that he was prepared to proceed

without counsel, the trial court expressly disagreed with the
WOODS V. SINCLAIR 21

prosecutor’s statement that Woods was asking to proceed pro

se, stating that “[Woods] didn’t indicate that [he wanted to

proceed pro se]. He indicated he was able to do that.” 

Woods had the opportunity to correct or clarify the court’s

understanding if it was incorrect. Yet neither Woods nor his

counsel reasserted the request to proceed pro se again during

the hearing or any future hearings.6

In light of this exchange,

we cannot conclude that the state court’s factual

determination was unreasonable. Woods is therefore not

entitled to relief under this claim.

VIII. CONFRONTATION CLAUSE

Woods next argues that admission of Jade Moore’s outof-court statements at trial violated his rights under the

Confrontation Clause. The Sixth Amendment provides that,

“[i]n all criminal prosecutions, the accused shall enjoy the

right . . . to be confronted with the witnesses against him.”

U.S. Const. amend. VI. Under Ohio v. Roberts, controlling

law at the time of Woods’s conviction, admission of an outof-court statement at trial did not violate the Confrontation

Clause if the statement possessed “adequate indicia of

reliability.” 448 U.S. 56, 65–66 (1980), abrogated by

Crawford v. Washington, 541 U.S. 36 (2004).7 A statement

6 Woods claims that at the next hearing he reasserted his right to proceed

pro se. At that hearing, in discussing whether or not to grant a

continuance, the trial court stated, “I’ve heard Mr. Woods’ point of view

and I take it, it is unchanged. Is that correct?” Woods replied, “Yeah.” 

We cannot reasonably discern from Woods’s reply a request to proceed

pro se.

7 Woods’s conviction became final before the Supreme Court issued its

opinion in Crawford, so we apply the clearly established pre-Crawford

Supreme Court law. See Whorton v. Bockting, 549 U.S. 406, 421 (2007)
22 WOODS V. SINCLAIR

is sufficiently reliable if it falls “within a firmly rooted

hearsay exception” or bears “particularized guarantees of

trustworthiness.” Id. at 66. The Supreme Court subsequently

recognized that “spontaneous declarations”—the same types

of statements referred to as “excited utterances” under

Washington’s hearsay laws—constitute a “firmly rooted”

hearsay exception. White v. Illinois, 502 U.S. 346, 355 n.8

(1992). Likewise, the Court recognized that statements made

to physicians in the course of diagnosis also fall within a

“firmly rooted” exception. Id.

Here, over Woods’s objection, the trial court allowed five

witnesses to testify about statements that Jade made after the

attack and before her death. Deputy Douglas Lawson of the

Spokane County Sheriff’s Department, who responded to the

scene of the crime, testified at trial that he asked Jade whether

she knew who attacked her and that she responded it was “a

guy named Dwayne.” Carol Ragland-Stone, a paramedic

who accompanied Jade to the hospital, testified at trial that:

(1) when she asked Jade what had happened to her, Jade told

her that she had been hit with a baseball bat; (2) when she

asked Jade who hit her, Jade responded that it was a man

named Dwayne; and (3) when asked whether she was

sexually assaulted, Jade said yes. Jade’s father, Barry Moore,

testified that when he went to visit Jade in the emergency

room, she gave him a detailed account of the incident. Barry

Moore repeated this account to the jury. Dr. Edminster, who

was working at the hospital where Jade was admitted,

testified that he asked Jade a number of questions as part of

a routine rape examination procedure. Dr. Edminster gave

(holding that the new Crawford rule is applicable only to cases that are

still on direct review and does not apply retroactively to cases on collateral

review).
WOODS V. SINCLAIR 23

detailed testimony about Jade’s answers to these questions. 

Finally, Dianne Bethel, a registered nurse who assisted Dr.

Edminster in the administration of the rape examination, also

testified as to Jade’s answers to the rape examination

questions.

To determine whether Woods’s Confrontation Clause

rights were violated, we must resolve whether Jade’s

statements to these witnesses fell within either the “firmly

rooted” excited utterance or medical diagnosis exceptions to

the hearsay rule. We address the five witnesses’s statements

in turn.

First, Woods argues that some of Jade’s statements to Dr.

Edminster and nurse Bethel were not elicited for purposes of

diagnosis and treatment and therefore do not fall within the

medical diagnosis exception to the hearsay rule. Under

White, in order for a statement to fall within the medical

diagnosis exception, it must have been “made in the course of

procuring medical services, where the declarant knows that

a false statement may cause misdiagnosis or mistreatment.” 

Id. at 356.

The Washington Supreme Court held that Jade Moore’s

statements to Dr. Edminster and Bethel were admissible

under this exception because they were pertinent to later

treatment for post traumatic stress disorder. Because this

conclusion is at least plausible and because the Supreme

Court has yet to address whether such statements relevant

only to later psychological treatment fall within the medical

diagnosis exception to the hearsay rule, we cannot conclude

that the Washington Supreme Court’s determination was

clearly unreasonable.
24 WOODS V. SINCLAIR

Woods next argues that Jade’s statements to Barry Moore

and to paramedic Ragland-Stone should not have been

admitted into evidence under the excited utterance exception. 

In White, the Court explained that statements that have “been

offered in a moment of excitement—without the opportunity

to reflect on the consequences of one’s exclamation” fall

within the excited utterance exception. Id. If, on the other

hand, a statement is made after the declarant has had an

opportunity to reflect or discuss the matter with others, it no

longer qualifies for the excited utterance exception. Winzer

v. Hall, 494 F.3d 1192, 1198 (9th Cir. 2007) (interpreting

White).

According to the Washington Supreme Court, “it was not

manifestly unreasonable for the trial court to admit Jade’s

statements to Ragland-Stone and her father as excited

utterances.” Woods, 23 P.3d at 1069. As to Jade’s statements

to Ragland-Stone, the court noted:

[T]he record reflects that the statements to

Ragland-Stone were made, in a spontaneous

manner, on the heels of a clearly startling

event. . . . Also, it is clear that when Jade was

making the statements to Ragland-Stone, Jade

was under the stress caused by the underlying

assault. According to Ragland-Stone, when

Jade was first moved into the ambulance,

Ragland-Stone said she was “whimpering,

like crying almost” and was “very emotional,

very distraught, clearly upset and in a lot of

pain.”

Id. at 1068. We must accept the state court’s factual findings

unless objectively unreasonable. 28 U.S.C. § 2254(d)(2);
WOODS V. SINCLAIR 25

Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004). 

Because there was no evidence to the contrary, the state

court’s conclusion that the statements were made “in a

spontaneous manner, on the heels of a clearlystartling event,”

was not objectively unreasonable. Woods, 23 P.3d at 1068. 

Given those circumstances, Jade’s statements to RaglandStone met the White requirement for an excited utterance:

they were offered “in a moment of excitement—without the

opportunity to reflect on the consequences of [her]

exclamation.” White, 502 U.S. at 356. The state court’s

conclusion was therefore not objectively unreasonable. For

the same reasons, we conclude that the state court was not

objectively unreasonable in holding that Jade’s statements to

Deputy Lawson fell within White’s requirements.

 Jade’s statements to Barry Moore, however, do not fall

within the excited utterance exception as formulated byWhite

because they were not made before Jade had an opportunity

to reflect. Rather, these statements were made after Jade had

already been transported to the hospital and after she had

already recounted the events to Ragland-Stone, Edminster

and Bethel. Furthermore, in recounting the events to her

father, Jade said that she had gone to bed early despite the

fact that she had been up until past 3 a.m., and she also failed

to recount that she had been drinking prior to the attack or

that she had sought to buy drugs from Woods. Woods,

23 P.3d at 1068. Those misrepresentations suggest that Jade

had the opportunity to reflect on the consequences of her

statements. Furthermore, unlike its findings about Jade’s

statements to Ragland-Moore, the Washington Supreme

Court’s opinion contains no similar findings as to the

spontaneity of Jade’s statements to Barry Moore. We

therefore conclude that the state court’s determination that

Jade’s statements to her father were “excited utterances” was
26 WOODS V. SINCLAIR

an unreasonable application of White, clearly established

federal law. Accordingly, admission of Jade’s statements to

Barry Moore constituted a violation of Woods’s rights under

the Confrontation Clause.

Violation of the Confrontation Clause, however, is subject

to harmless-error analysis. Delaware v. Van Arsdall,

475 U.S. 673, 684 (1986). If the error did not result in

“actual prejudice,” Woods is not entitled to habeas relief. 

Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). Here,

Jade’s statements to her father were, for the most part,

cumulative of the statements she gave to Edminster, Bethel

and Ragland-Stone. Jade’s prior statements all included the

details of the crime and identification of Woods as the

perpetrator. Furthermore, Jade’s prior statements were

cumulative of the testimony by Venus, who also identified

Woods as the attacker. Thus, Woods cannot establish

prejudice as a result of the Confrontation Clause violation,

and he is not entitled to habeas relief on this issue.

IX. DUE PROCESS CLAIM — WITHHOLDING

MATERIAL EVIDENCE

Woods argues that the prosecution withheld material,

exculpatory evidence in violation of Brady v. Maryland. 

Specifically, Woods argues in two Brady sub-claims8that the

prosecution withheld evidence concerning: (1) WSPCL’s

general policy of destroying “draft” reports, as evidenced by

Dr. John Brown’s conduct in State v. Barfield, No. 48147-9-I,

2003 WL 22121058 (Wash. Ct. App. Sept. 15, 2003), and (2)

8 The first sub-claim is set out in claim 5.1 in Woods’s federal habeas

petition. The second sub-claim is set out in claim 5.2 in Woods’s federal

habeas petition.
WOODS V. SINCLAIR 27

the full details of how the WSPCL mishandled the physical

evidence in his case, including spillage of Woods’s first blood

sample. On the first Brady sub-claim, the district court

denied Woods’s request for an evidentiaryhearing and denied

habeas relief. The district court ruled that the second subclaim was procedurally defaulted. We address each subclaim in turn.

A. The State’s failure to disclose WSPCL’s general

practices

Woods argues that the prosecution had knowledge of

WSPCL’s DNA testing and review protocol, which included

discarding “draft” reports, and was therefore required under

Brady to disclose the lab’s review process. Woods bases this

contention on Dr. Brown’s conduct detailed in State v.

Barfield, 2003 WL 22121058.9In Barfield, Dr. Brown tested

the DNA from a semen sample retrieved from a rape victim

and compared the results to a WSPCL database that included

defendant Barfield’s DNA. Id. at *1. He did not identify a

match, and created a draft report reflecting that result. Id. 

Brown’s supervisor, Donald MacLaren, independently

analyzed the test results and, after reviewing Brown’s draft

report, noticed that Brown had made an error. Id. After

MacLaren brought the error to his attention, Brown discarded

the erroneous draft report and prepared a new report

reflecting the correct analysis, which indicated the DNA from

the semen sample matched Barfield’s DNA profile in the

WSPCL database. Id. In a pretrial interview with defense

counsel, Brown initially denied excluding Barfield in an

earlier report, but later admitted that he had performed the

9 Dr. Brown analyzed DNA in the Barfield case in 1997, but after he

analyzed the DNA evidence and testified in Woods’s case.
28 WOODS V. SINCLAIR

first round of analysis incorrectlyand had discarded the initial

erroneous draft report. Id. Dr. Brown testified at Barfield’s

rape trial that he had lied to defense counsel because he was

embarrassed about making an obvious error. Id. at *2.

In a declaration submitted to the Washington Supreme

Court in Woods’s PRP proceeding, MacLaren, who also

reviewed Dr. Brown’s analysis in Woods’s case, stated that

the review process followed in Barfield—including peer

review and discarding erroneous draft reports—was standard

procedure at WSPCL. MacLaren declared, however, that

“out of the thousands of autorads this lab has developed there

have been less than ten instances where a resizing was

necessitated by the review process.”

Woods argues that had he known about WSPCL’s

practices at the time of trial, he would have used the

information to impeach Dr. Brown and to challenge the

prosecution’s DNA evidence by questioning the quality of

WSPCL’s internal review process. Woods contends that Dr.

Brown’s misconduct in the Barfield case revealed a

longstanding practice of hiding the results of exculpatory

tests and that there were indicia in this case that draft reports

may have been destroyed. Specifically, Woods points out

that WSPCL assured the prosecution that testing would be

completed by January 1, 1997, but it was not completed until

February 20, 1997. Woods argues that it is reasonable to

infer that the delay was due to one or more tests that were

never reported to the defense.

To prevail on a Brady claim, a defendant must prove that

“[1] The evidence at issue [is] favorable to the accused, either

because it is exculpatory, or because it is impeaching; [2] that

evidence [was] suppressed by the State, either willfully or
WOODS V. SINCLAIR 29

inadvertently; and [3] prejudice . . . ensued.” Strickler v.

Greene, 527 U.S. 263, 281–82 (1999); see Brady, 373 U.S. at

87. To establish prejudice, a defendant must demonstrate that

“there is a reasonable probability that the result of the trial

would have been different if the suppressed [evidence] had

been disclosed to the defense.” Strickler, 527 U.S. at 289

(internal quotation marks omitted). “A ‘reasonable

probability’ is a probability sufficient to undermine

confidence in the outcome.” United States v. Bagley,

473 U.S. 667, 682 (1985).

The duty imposed by Brady extends to evidence in the

government’s possession not known to the prosecutor, but

applies only to “favorable evidence rising to a material level

of importance.” Kyles v. Whitley, 514 U.S. 419, 438 (1995). 

Moreover, the prosecutor’s duty to disclose under Brady is

limited to evidence a reasonable prosecutor would perceive

at the time as being material and favorable to the defense. Id.

at 436–37.

The state supreme court concluded that WSPCL’s general

practice of peer review and destruction of erroneous draft

reports was not exculpatory material in Woods’s case, and

that the prosecution did not have a duty to disclose the lab’s

general practices and procedures. This conclusion was not

contrary to nor an unreasonable application of Brady under

28 U.S.C. § 2254(d)(1). The bare fact that the lab subjected

DNA test results to peer review and discarded draft reports

when peer review turned up an error does not tend to show

that an error occurred in Woods’s case. We recognize that

destruction of a draft report that excluded a defendant as a

match with a suspect’s DNA would likely violate Brady in

light of the report’s impeachment value. Although WSPCL

may have followed such a practice in those rare instances
30 WOODS V. SINCLAIR

when its peer review process revealed an erroneous analysis,

there is nothing to suggest that the state suppressed an

erroneous draft report in Woods’s case. Moreover, Dr.

Brown’s misconduct in Barfield occurred months after

Woods’s trial concluded, so the prosecution did not possess

any information about Brown’s actions in Barfield that could

have impeached him at Woods’s trial.

Even if evidence of WSPCL’s general practices were not

exculpatory, Woods argues that it would be reasonable to

infer from Dr. Brown’s conduct in Barfield and the delay in

obtaining DNA test results in his case that WSPCLconducted

tests in his case that were never reported to the defense. 

Woods contends the state supreme court wrongfully denied

him an evidentiary hearing to develop this claim. We

construe his argument as a claim that the state court’s

factfinding process was flawed and was therefore an

unreasonable determination of the facts under 28 U.S.C.

§ 2254(d)(2). A state court’s fact-finding process is

unreasonable under § 2254(d)(2) only when we are “satisfied

that any appellate court to whom the defect is pointed out

would be unreasonable in holding that the state court’s

factfinding process was adequate.” Taylor v. Maddox,

366 F.3d 992, 1000 (9th Cir. 2004).

Here, there was no defect in the state supreme court’s

factfinding process. Although it might have been prudent to

provide Woods with the opportunity to develop the facts

underlying this aspect of his Brady claim, the state court’s

decision to deny him a hearing was based on its consideration

of the declarations of Dr. Brown and MacClaren that were

filed with the Washington Supreme Court. Although neither

declaration expressly denied the existence of an erroneous

draft report in Woods’s case, there is nothing in those
WOODS V. SINCLAIR 31

declarations or anywhere else in the record to suggest that

such a report existed. It was not unreasonable for the

Washington Supreme Court to deny Woods’s request for a

hearing when all he could offer was speculation that an

evidentiary hearing might produce testimony or other

evidence inconsistent with Dr. Brown and MacClaren’s

declarations.

We further conclude that the Washington Supreme Court

did not make an unreasonable determination of the facts

under § 2254(d)(2) when it found that there was no showing

Dr. Brown destroyed evidence in this case. The only

evidence before the state court was that MacClaren reviewed

Dr. Brown’s test results and agreed with them. We agree

with the Washington Supreme Court that “the record does not

show that Dr. Brown intentionally destroyed exculpatory

evidence and then lied about it.” In re Woods, 114 P.3d at

622.

Because the state supreme court’s ruling was neither an

unreasonable application of federal law nor an unreasonable

determination of the facts, 28 U.S.C. § 2254(d)(1)–(2), we

affirm the district court’s denial of relief on this sub-claim.10

10 Woods also requested an evidentiary hearing in the district court to

develop his claim. Because our review of a claim adjudicated on the

merits by the state court under 28 U.S.C. § 2254(d)(1) is limited to the

record before the state court under Pinholster, 131 S. Ct. at 1398, we see

no need to afford Woods an opportunity to develop evidence in support of

his argument that the state supreme court unreasonably applied Brady. To

the extent that Woods attacks the state court’s factfinding, we have held

that where there is no defect in the state court’s factfinding process, as

here, “the state court’s findings are dressed in a presumption of

correctness, which then helps steel them against any challenge based on

. . . evidence presented for the first time in federal court.” See Taylor, 366
32 WOODS V. SINCLAIR

B. Failure to disclose details of the spillage of Woods’s

first blood sample

Woods alleges that the State failed to disclose the full

details of the spillage of his first blood sample at WSPCL’s

laboratory in Spokane. Woods claims that this evidence

would have shown that there was a significant risk that the

rape kit swab taken from Jade Moore was contaminated when

Woods’s blood sample leaked, thus leading to a false positive

DNA match. The district court found that Woods did not

fairly present this sub-claim to the Washington Supreme

Court and ruled that the sub-claim was procedurally barred. 

We agree.11

F.3d at 1000. Woods alleges no facts to support his claim beyond the

suspicion that the prosecution’s delay in obtaining and reporting DNA test

results indicates the destruction and non-disclosure of exculpatory

evidence. “Bare allegation[s],” “speculation,” and “wishful suggestions”

do not entitle a petitioner to an evidentiary hearing. Morris v. California,

966 F.2d 448, 455–56 (9th Cir. 1991). We therefore affirm the district

court’s denial of an evidentiary hearing.

11 Woods and the State disagree as to whether the COA includes the

earlier procedural rulings related to each claim or, rather, is limited only

to the claims as considered by the court in its final order. Woods argues

that the district court’s grant of a COA relates not only to the merits of the

claims but also to the procedural rulings associated with each claim. The

State, on the other hand, argues that the COA does not cover the

procedural rulings and therefore does not allow us to review whether

Woods’s second Brady sub-claim was properly exhausted. In his

Memorandum in Support of Motion for Certificate of Appealability filed

with the district court, Woods expressly requested that the COA include

the district court’s procedural rulings. See Woods v. Sinclair, No.

CV-05-0319-LRS (E.D. Wash. Dec. 29, 2008). In light of these

circumstances and the minimal showing that is required for a COA to

issue, see Lopez v. Schriro, 491 F.3d 1029, 1039 (9th Cir. 2007) (stating

that appellant need only show that reasonable jurists would find the
WOODS V. SINCLAIR 33

State prisoners seeking a writ of habeas corpus from a

federal court must first exhaust their remedies in state court. 

28 U.S.C. § 2254(b)(1)(A). A petitioner has exhausted his

federal claims when he has fully and fairly presented them to

the state courts. O’Sullivan v. Boerckel, 526 U.S. 838,

844–45 (1999) (“Section 2254(c) requires only that state

prisoners give state courts a fair opportunity to act on their

claims.”). “[F]or purposes of exhausting state remedies, a

claim for relief in habeas corpus must include reference to a

specific federal constitutional guarantee, as well as a

statement of the facts that entitle the petitioner to relief.” 

Gray v. Netherland, 518 U.S. 152, 162–63 (1996); see also

Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008). A claim

that has not been fairly presented may also be deemed

technically exhausted if the petitioner has defaulted on the

claim in state court and no longer has a remedy in that court. 

Coleman v. Thompson, 501 U.S. 722, 732 (1991). Although,

due to the state court default, a federal court may be

procedurally barred from reviewing such a claim. Id. at 750.

Here, Woods presented the state supreme court with both

the operative facts and legal theory of his sub-claim that the

State withheld evidence of WSPCL’s general testing and

review protocols, but he did not present facts relating to the

breakage of the vial containing his first blood sample at the

Spokane lab. Woods argues that, although his PRP never

expressly raised a claim about the spillage of his blood

sample and the potential for contamination of other evidence,

district court’s assessment of the constitutional claims debatable or

wrong), we agree with Woods that the COA should be construed to

encompass related procedural rulings. Therefore, we conclude that the

COAincludes the question of whether Woods exhausted his second Brady

sub-claim, and we proceed to consider it.
34 WOODS V. SINCLAIR

his state court Brady claim alleging the non-disclosure of

WSPCL’s practice of discarding erroneous draft reports was

sufficient to raise the issue of the prosecution’s failure to

disclose the mishandling of all the evidence related to DNA

testing. In his amended PRP, Woods unequivocally stated

that his Brady claim related to how WSPCL’s general

practices related to his case. Woods noted in his PRP that

“counsel moved to take depositions of Dr. Brown, William

Morig, and Donald MacLaren, all of the Washington State

Patrol Crime Lab, to determine the specific practices in this

case.” (emphasis added). Woods suggests this language was

sufficient to put the state supreme court on notice of the

second Brady sub-claim he raised in his federal habeas

petition.

Nowhere in the PRP’s Brady section, however, does

Woods mention the spillage of the first blood sample. Aside

from his request to depose Morig, Woods’s only reference in

the PRP to the forensic work at WSPCL’s Spokane facility

stated that Morig received the rape kit swabs, prepared

samples from the swabs, and sent the samples to other

laboratories to be tested. The Brady claim presented in the

PRP focuses entirely on the actions of Dr. Brown, both in the

Barfield case and in Woods’s case. Yet Dr. Brown had

nothing to do with the storage, spillage, and breakage of the

vial containing Woods’s first blood sample. In fact, Woods

does not allege that Dr. Brown even knew that a spillage

occurred. As discussed above, Dr. Brown’s conduct in the

Barfield case does not create a presumption that WSPCL, as

an organization, systematically suppressed exculpatory

material. We thus fail to see how the Brady claim in

Woods’s PRP, which spoke only to Dr. Brown’s procedures

for testing and analysis in the Seattle lab, gave the state

supreme court a full and fair opportunity to act on an
WOODS V. SINCLAIR 35

allegation that the prosecution withheld evidence related to

the spillage of a blood sample at WSPCL’s Spokane

laboratory. Accordingly, we conclude that Woods failed to

present the facts underlying his second Brady sub-claim to

the Washington Supreme Court, and we affirm the district

court’s ruling that the sub-claim regarding the spillage of

Woods’s blood sample is technically exhausted but

procedurally barred.

Woods contends that the district court nonetheless should

have entertained his sub-claim because he established cause

for the procedural default and prejudice resulting from his

failure to exhaust state remedies. See Banks v. Dretke,

540 U.S. 668, 690–91 (2004) (holding that petitioner would

be entitled to an evidentiary hearing in federal court if he

could show cause for his failure to develop the facts in

state-court proceedings and actual prejudice resulting from

that failure). For a Brady claim, cause and prejudice

“‘parallel two of the three components of the alleged Brady

violation itself.’” Id. at 691 (quoting Strickler, 527 U.S. at

282). A petitioner may establish cause by showing that the

prosecution’s suppression of evidence was the reason for the

petitioner’s failure to develop the factual basis of the claim in

state court. Id. Prejudice is established by showing that the

suppressed evidence is material for Brady purposes. Id. 

Here, Woods argues that he failed to develop the facts of this

sub-claim because the State never disclosed the full details of

the spillage of his first blood sample. We agree with the

district court that this is insufficient to show that the

prosecution’s alleged suppression of evidence caused

Woods’s failure to develop his sub-claim in state court.

Notably, the prosecution disclosed before trial that the

vial containing Woods’s first blood sample had cracked and
36 WOODS V. SINCLAIR

leaked at the Spokane lab. That disclosure put Woods on

notice that other evidence may have been contaminated. 

Woods does not allege what further exculpatory facts the

prosecution possessed but failed to disclose. Moreover,

although Woods sought authorization from the Washington

Supreme Court to conduct certain discovery, neither his

discovery requests nor his request for an evidentiary hearing

specifically related to the spillage of the blood sample or the

possible contamination of other evidence. His failure to

develop the factual basis of his claim, therefore, cannot

properly be attributable to the prosecution’s failure to

disclose relevant evidence. We thus affirm the district court’s

dismissal of this sub-claim as procedurally defaulted.12

12 Woods also seeks an evidentiary hearing on the merits of this subclaim and on the issue of cause and prejudice as an excuse for his

procedural default. Under the AEDPA, 28 U.S.C. § 2254(e)(2):

[i]f the applicant has failed to develop the factual basis

of a claim in State court proceedings, the court shall not

hold an evidentiary hearing on the claim unless the

applicant shows that-

(A) the claim relies on-

(i) a new rule of constitutional law, made

retroactive to cases on collateral review by the

Supreme Court, that was previously

unavailable; or

(ii) a factual predicate that could not have

been previously discovered through the

exercise of due diligence; and

(B) the facts underlying the claim would be

sufficient to establish by clear and convincing

evidence that but for constitutional error, no
WOODS V. SINCLAIR 37

X. INEFFECTIVE ASSISTANCE OF COUNSEL

Woods argues that he was denied his Sixth Amendment

right to effective assistance of counsel on the basis of a

number of deficiencies in his defense team’s performance. 

The district court concluded that seven of these IAC subclaims had been properly exhausted before the state courts

and therefore considered them on the merits: (1) counsel’s

heavy workload; (2) counsel’s lack of experience and

training; (3) counsel’s failure to properly impeach witness

Johnny Knight; (4) counsel’s failure to investigate and

present Woods’s diminished capacity defense; (5) counsel’s

failure to investigate and present Woods’s voluntary

intoxication defense; (6) counsel’s failure to ensure that the

DNA autoradiograms went into the jury deliberation room;

and (7) counsel’s failure to object to the use of Woods’s alias,

“Michael A. Smith,” during the trial.

The district court also concluded that a number of the IAC

sub-claims were procedurallybarred, including: (1) counsel’s

failure to address Venus’s recovered memories; (2) counsel’s

failure to adequately cross-examine Venus on her prior false

reasonable factfinder would have found the

applicant guilty of the underlying offense.Woods

cannot meet this high standard. Woods fails to

allege what facts relevant to his Brady claim or to

the issue of cause and prejudice will be uncovered

by an evidentiary hearing aside from the suspicion

that the prosecution might have been hiding

information relating to DNA contamination. We

agree with the district court that these speculative

allegations do not meet the required showing under

§ 2254(e)(2), and we affirm the district court’s

denial of an evidentiary hearing.
38 WOODS V. SINCLAIR

allegation that Woods had raped her; (3) counsel’s failure to

call a DNA expert to contest the DNA evidence; and

(4) counsel’s failure to investigate adequately the potential

DNA contamination caused by the broken vial of Woods’s

blood.

Both parties agree that the Supreme Court’s decision in

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

“clearly established federal law” providing the proper

framework for assessing Woods’s IAC claims. Under the

AEDPA, the primary issue is whether the state court

adjudication of the Strickland claims was objectively

reasonable. Schriro v. Landrigan, 550 U.S. 465, 473 (2007). 

To prevail on an IAC claim under Strickland, a petitioner

must show (1) “that counsel’s performance was deficient,”

and (2) “that the deficient performance prejudiced the

defense.” Strickland, 466 U.S. at 687. In evaluating IAC

claims, “our cases require that . . . [we] use a ‘doubly

deferential’ standard of review that gives both the state court

and the defense attorney the benefit of the doubt.” Burt v.

Titlow, 134 S. Ct. 10, 13 (2013) (quoting Pinholster, 131 S.

Ct. at 1403).

As to the first prong, a petitioner must prove that

counsel’s performance was so deficient that it “fell below an

objective standard of reasonableness.” Strickland, 466 U.S.

at 688. The Supreme Court has instructed lower courts to

“indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance

. . . .” Id. at 689. As to the second prong, petitioner “must

show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceedings

would have been different.” Id. at 694. Finally, even if

Woods can satisfy both of those prongs, the AEDPA requires
WOODS V. SINCLAIR 39

that a federal court find the state court’s contrary conclusions

are objectively unreasonable before granting habeas relief. 

See Landrigan, 550 U.S. at 473.

We first review those claims that the district court

addressed on the merits, and then consider those the district

court concluded were technically exhausted but procedurally

barred.

A. Counsel’s inexperience and caseload

Woods argues that, because his two primary defense

attorneys faced unmanageable caseloads and were

inexperienced in capital litigation, their performance was

deficient. The district court rejected that argument, and so do

we.

Woods points out several troubling aspects of his

counsel’s experience and caseload. For example, neither of

Woods’s attorneys had ever tried a capital case before. One

of Woods’s attorneys was the lead attorney on four other

murder cases during the time he was representing Woods,

while the other was responsible for three other aggravated

murder cases. In fact, just weeks before trial, Woods’s

defense attorney requested an extended continuance,

explaining that he had never prepared for a case of this

magnitude before and that he did not feel comfortable

beginning the trial. The court denied this request. Despite

these alleged deficiencies, these circumstances do not, in and

of themselves, amount to a Strickland violation. Rather,

Woods must point to specific acts or omissions that may have

resulted from counsel’s inexperience and other professional

obligations. See Strickland, 466 U.S. at 690. Thus, Woods

is not entitled to relief on this sub-claim alone.
40 WOODS V. SINCLAIR

B. Diminished capacity defense

Woods claims that his attorneys should have investigated

and pursued a diminished capacity defense. The state

supreme court concluded:

[I]t was reasonable for [Woods’s] counsel to

pursue the alibi defense rather than

diminished capacity because Woods

continuously denied his involvement in the

crimes. To pursue the diminished capacity

defense would have required Woods to

essentially admit that he committed the

murders, a position entirely inconsistent with

his contention that he did not commit the

murders.

In re Woods, 114 P.3d at 618.

The district court agreed, adding that Woods’s staunch

insistence on his innocence made it reasonable for counsel to

“cho[o]se to pursue a defense of alibi and mistaken

identification rather than a defense of diminished capacity,

the latter of which had a high probability of failure.” Order

Denying Petition, Supplement, and Revised Petition for a

Writ of Habeas Corpus at 44, Woods v. Sinclair, No.

2:05-cv-00319-LRS (E.D. Wash. Feb. 5, 2009), ECF No. 185

[hereinafter Dist. Ct. Order]. The Washington Supreme

Court and the district court also agreed that, even if counsel’s

performance had been deficient, the failure to present a

diminished capacity defense was harmless in light of the

strong evidence of Woods’s premeditation. See Dist. Ct.

Order, supra at 44–45; In re Woods, 114 P.3d at 618–19. 

Woods argues that the state court’s determination on this
WOODS V. SINCLAIR 41

issue was objectively unreasonable and that he is entitled to

an expansion of the record and an evidentiary hearing. We

need not address whether Woods’s counsel’s performance

was deficient because we conclude he cannot demonstrate

prejudice and is therefore not entitled to habeas relief on this

sub-claim.

To be entitled to habeas relief, Woods must demonstrate

that the Washington Supreme Court unreasonably concluded

that counsel’s performance did not prejudice him. The

Washington Supreme Court held that, “[e]ven if Woods’

attorneys failed to investigate the diminished capacity

defense, it is harmless error because there is strong evidence

of premeditation by Woods.” Woods, 114 P.3d at 618–19. 

Under the second prong of Strickland, to demonstrate

prejudice, Woods must show that it is reasonably probable

that the outcome of his trial would have been different had

counsel conducted a reasonable investigation into his

diminished capacity defense. 466 U.S. at 694. “A reasonable

probability does not mean that we must determine that the

jury more likely than not would have returned a verdict for

something beside [sic] first degree murder, but only that

[defendant] has shown ‘a probability sufficient to undermine

confidence in the outcome.’” Jennings v. Woodford,

290 F.3d 1006, 1016 (9th Cir. 2002) (quoting Strickland, 466

U.S. at 694). Thus, Woods must demonstrate that it was

objectively unreasonable for the state court to conclude that

his counsel’s deficient performance did not affect, or

otherwise undermine confidence in, the outcome of his trial.

Even assuming that Woods’s counsel were

constitutionally deficient in their performance, the state

court’s determination that this deficiency was not prejudicial

was objectively reasonable. According to Woods, his counsel
42 WOODS V. SINCLAIR

should have conducted further investigation into a diminished

capacity defense. Yet, as the state supreme court noted, even

if counsel had unearthed significant evidence of Woods’s

diminished capacity, “[t]o pursue the diminished capacity

defense would have required Woods to essentially admit that

he committed the murders, a possibility entirely inconsistent

with his contention that he did not commit the murders.” In

re Woods, 114 P.3d at 618. Woods failed to present the

Washington Supreme Court with any evidence (or even a

declaration) that he would have been willing to abandon his

alibi defense if presented with an alternative diminished

capacity defense. We thus cannot say that the state court’s

determination on this sub-claim was objectively

unreasonable.

C. Voluntary intoxication defense

Woods faults counsel for not adequatelyinvestigating and

presenting a voluntaryintoxication defense. Although related

to a diminished capacity defense, voluntary intoxication

constitutes a separate cognizable defense under Washington

law. See State v. Hackett, 827 P.2d 1013, 1016 n.3 (Wash.

Ct. App. 1992) (per curiam) (holding that the voluntary

intoxication defense applies to intoxication by drugs as well

as alcohol, and that a diminished capacity instruction was not

broad enough to cover voluntary intoxication falling short of

mental illness or disorder).

Although this type of alleged deficiency may prejudice a

defendant, see Seidel v. Merkle, 146 F.3d 750, 757 (9th Cir.

1998) (finding prejudice where counsel completely failed to

investigate his client’s mental health despite abundant signs

in the record that his client suffered from mental illness);

Jennings, 290 F.3d at 1019 (finding prejudice where counsel
WOODS V. SINCLAIR 43

failed to investigate and present mental health defenses and

noting that the jury deliberated for two full days despite

overwhelming evidence against the defendant), here we are

not convinced that the state court’s determination to the

contrary was objectively unreasonable. Woods failed to

submit any evidence that, had his defense counsel presented

him with the option to pursue this defense, he would have

agreed to it. In fact, the evidence before the state trial court

demonstrated that Woods was insistent upon his innocence

and that, in all probability, he would have rejected any

defense requiring him to admit guilt. In sum, whether or not

Woods’s counsel’s performance was constitutionally

deficient, the Washington Supreme Court’s determination

that this failure did not prejudice Woods was not objectively

unreasonable. Woods is therefore not entitled to relief on this

sub-claim.

D. Cross-examination of witness Johnny Knight

Woods alleges that counsel did not properly crossexamine Johnny Knight about (1) his prior theft conviction

and (2) his statements to police that increasingly incriminated

Woods over time. We address those arguments in turn.

Johnny Knight, one of the State’s key witnesses, falsely

denied any prior theft conviction during direct and crossexamination. Woods argues that his counsel was

constitutionally deficient in failing to impeach Knight’s

testimony with a copy of the theft conviction record. In

rejecting this argument, the Washington Supreme Court held:

[T]he failure to obtain the certified copy of

judgment and conviction does not establish

deficiency. We say that because questioning
44 WOODS V. SINCLAIR

from the prosecution and defense established

that all parties were aware that Knight had a

theft conviction. In fact during questioning,

Knight volunteered information about other

convictions as well. Thus, it is clear that the

jury was aware they were listening to a

witness with multiple convictions. In effect,

Knight impeached himself.

In re Woods, 114 P.3d at 619 (internal footnote omitted). 

This characterization of the record is not quite accurate. 

Rather, Knight denied having a theft conviction and, after

Woods’s attorney objected, admitted that he had been

convicted of a “drug transaction.” After a brief colloquy with

counsel, the trial judge stated in open court: “[Knight is]

subject to recall or you can just put in the evidence about the

conviction.” Woods’s counsel then moved on to other lines

of questioning without asking any further questions about the

theft conviction or introducing any evidence pertaining to it.

Whether or not the failure to introduce the certified copy

of Knight’s prior judgment and conviction was deficient, we

are convinced that the state supreme court’s determination

that Woods was not prejudiced by that failure was not

objectively unreasonable. The jury was indeed made aware

that Knight had been convicted of a crime. Woods argues

that Knight’s admission of his drug conviction is irrelevant

because a conviction for a “drug transaction” is not

comparable to a theft conviction because drug crimes are not

crimes of dishonesty under Washington law. See State v.

Hardy, 946 P.2d 1175, 1178 (Wash. 1997). While we agree

that a drug conviction may not be as valuable for

impeachment purposes as a theft conviction, we cannot say

that the counsel’s failure to elicit Knight’s admission to a
WOODS V. SINCLAIR 45

theft conviction was sufficientlyprejudicial to render the state

supreme court’s determination objectively unreasonable.

Nor is Woods entitled to relief on the basis of his

counsel’s failure to confront Knight with evidence that his

statements to police changed significantly after he was

charged with three felonies. On April 28, 1996, the police

questioned Knight and reported: “Johnny Knight denied

having knowledge of the assaults or intention of any assaults

that [Woods] may have been involved in.” On May 7, 1996,

Knight was re-interviewed by the police and again said

nothing about Woods confessing to the assaults.

On February 13, 1997, however, Knight was arrested for

drug and firearm crimes for which he could face significant

prison time. A week later, police interviewed Knight in jail,

and he alleged for the first time that on the day after the

murders, Woods confessed that he had killed the women. 

During this interview, Knight also told police that when he

met up with Woods after the murders, Woods had women’s

jewelry, cash, and some credit cards which had been taken

from the victims. Additionally, Knight claimed that Woods

said he needed “to get out of Spokane.”

By the time of Woods’s trial, Knight had been convicted

of several felonies stemming from his arrest and had been

sentenced to 10 years in prison. The jury at Woods’s trial did

not learn of Knight’s conviction and sentence. Woods argues

that counsel’s failure to make the jury aware of Knight’s

arrest as a possible reason for the change in Knight’s story

constituted a Strickland violation.

The Washington Supreme Court never addressed this subissue in its decision, nor did Woods’s personal restraint
46 WOODS V. SINCLAIR

petition raise it. Nonetheless, the district court concluded that

this claim had been properly exhausted because the new

factual allegations did not fundamentally alter the legal claim

already considered by the state court.13 The district court thus

considered this issue on the merits, as do we. Irrespective of

whether Woods’s counsel was deficient in failing to raise

Knight’s arrest at trial, that failure did not prejudice Woods.

Ample evidence was presented to the jury that Knight was an

untrustworthy witness: he had admitted to a drug conviction

and to receiving a reward for information leading to Woods,

and defense counsel impeached Knight on the stand for

having misrepresented the amount he received as a reward. 

Accordingly, there is not a “reasonable probability that . . .

the result of the proceeding would have been different” had

Knight been further impeached with his February 1997 arrest

and related convictions. Strickland, 466 U.S. at 694. Thus,

Woods is not entitled to habeas relief on this claim.

E. Woods’s alias

Woods contends that his trial counsel’s failure to object

to the use of Woods’s alias, “Michael A. Smith,” was

constitutionally deficient and prejudicial. The Washington

Supreme Court, however, determined that the use of the alias

was proper under state law as “relevant and material to prove

or disprove any of the issues in the case.” 114 P.3d at 619

(citing State v. Elmore, 985 P.2d 289, 310 (Wash. 1999);

State v. Cartwright, 456 P.2d 340, 342 (Wash. 1969)). 

Specifically, the Washington Supreme Court determined that,

13 The district court denied Woods’s request to introduce new evidence

supporting this claim. In his supplemental brief, Woods concedes that this

ruling was correct in light of the Supreme Court’s decision in Pinholster. 

131 S. Ct. at 1398.
WOODS V. SINCLAIR 47

because the identity of the perpetrator was at issue, because

Woods was booked at the jail under the name “Michael A.

Smith,” and because two of the fingerprints that were found

at the crime scene were identified as belonging to “Michael

Smith,” the use of the alias was appropriate to identifyWoods

as the perpetrator. Id. That determination of state law is

binding on this court. Bradshaw v. Richey, 546 U.S. 74, 76

(2005). Thus, even assuming Woods’s attorneywas deficient

for not objecting to the use of his alias, we cannot conclude

that it was prejudicial; even had defense counsel made the

objection, it would have been properly overruled. Woods is

therefore not entitled to habeas relief on this claim.

F. The State’s DNA evidence

Woods argues that his trial counsel failed to effectively

challenge the State’s DNA evidence. Specifically, Woods

alleges that his counsel were ineffective in the following three

ways: (1) they failed to present a defense expert to interpret

the results of the DNA tests; (2) they failed to explore the

issue of DNA contamination; and (3) they failed to ensure

that the jury could examine the autoradiograms (“autorads”).

The district court did not reach the merits of claims

(1) and (2) (collectively the “DNA–IAC” claims) because it

concluded that these claims had not been presented to the

Washington Supreme Court and were therefore technically

exhausted, but procedurally defaulted. See Wash. Rev. Code

§ 10.73.090; see also Coleman, 501 U.S. at 732, 735 n.1.14

14 As discussed above, the district court did not specify whether the

COA encompassed procedural issues related to Woods’s IAC claim or

only those parts of the claim that the district court determined were

exhausted and, therefore, considered on the merits in its final judgment. 
48 WOODS V. SINCLAIR

With respect to issue (3) above, the court held that because

the trial court correctly refused to send the autorads to the

deliberation room for consideration, Woods could not prevail

on his IAC claim related to the autorads. We consider first

Woods’s DNA–IAC claims and then address the merits of

Woods’s autorad claim.

1. DNA–IAC Claims

The State argues that the factual and legal allegations

underlying Woods’s DNA–IAC claims were never presented

to the state supreme court, the state court never ruled on the

claims, and the claims are now procedurally defaulted. 

Woods initially argued that he fairly presented these claims

in state court and therefore the district court erred in

concluding that these were procedurally defaulted. In his

supplemental briefing, post-remand, Woods now concludes

that these claims were procedurally defaulted. In our prior

opinion, we did not resolve this issue. Instead, we concluded

that even if these claims had been properly exhausted, Woods

could not show that he was entitled to habeas relief. We now

conclude that the claims were not fairly presented in the state

court. It is undisputed that the first specific reference to

defense counsel’s failure to explore the possibility of DNA

contamination and present the testimony of a defense DNA

expert was in Woods’s federal habeas petition. We therefore

agree with the parties and the district court that these claims

were procedurally defaulted.

As noted in footnote 11, we construe the COA to encompass both the

specific enumerated claims and any related procedural issues. Therefore,

we consider whether the DNA–IAC claims were properly exhausted in

state court.
WOODS V. SINCLAIR 49

Woods argues, nonetheless, that even if these claims are

procedurallydefaulted, the default should be excused because

it was due to ineffective representation by his state postconviction counsel. In Martinez, the Supreme Court held

that, in some circumstances, ineffective representation by

post-conviction counsel may provide a basis for excusing a

procedural default. 132 S. Ct. at 1320. “[T]o establish

‘cause’ to overcome procedural default under Martinez, a

petitioner must show: (1) the underlying ineffective

assistance of trial counsel claim is ‘substantial’; (2) the

petitioner was not represented or had ineffective counsel

during the [post-conviction relief (“PCR”)] proceeding;

(3) the state PCR proceeding was the initial review

proceeding; and (4) state law required (or forced as a practical

matter) the petitioner to bring the claim in the initial review

collateral proceeding.” Dickens v. Ryan, 740 F.3d 1302, 1319

(9th Cir. 2014) (citing Trevino v. Thaler, ––– U.S. –––, 133

S. Ct. 1911, 1918 (2013)).

We begin by addressing the latter two Martinez

requirements. Woods argues that these two requirements are

satisfied because Woods’s DNA-IAC claims were not raised

on direct appeal and, as a practical matter, could not have

been raised on direct appeal because they rely on extra-record

evidence (e.g. a declaration from a DNA expert, Dr. Donald

E. Riley) and Washington law does not permit consideration

of “matters outside the trial record” on direct appeal. State v.

McFarland, 127 Wash. 2d 322, 335, 899 P.2d 1251, 1257

(1995). In the State’s supplemental brief addressing the

significance of Martinez, the State essentially argued that the

exception recognized in Martinez was limited to cases where

state lawcategorically prohibits a defendant from raising IAC

claims on direct appeal, and that Martinez does not apply

where state law only prohibits a defendant from relying on
50 WOODS V. SINCLAIR

extra-record evidence to support IAC claims raised on direct

appeal. We reject this argument. After the State’s brief was

filed, the Supreme Court held in Trevino that, although Texas

law did not expressly require IAC claims to be raised on

collateral review, Martinez still applied because Texas law

limited claims on direct review to the trial record, thus

making it “virtually impossible for appellate counsel to

adequately present an ineffective assistance [of trial counsel]

claim on direct review.” 133 S. Ct. at 1918. The Washington

rule, by limiting the evidence on direct appeal to the record,

see McFarland, 899 P.2d at 1257, poses the same practical

barrier to raising IAC claims as the Texas rule at issue in

Trevino.

15

 Thus, the third and fourth Martinez requirements

are met.

As to the first two Martinez requirements —substantiality

and ineffective assistance of PCR counsel—the state argues

that the defaulted IAC claims are meritless and that Woods

therefore cannot show PCR counsel provided ineffective

assistance of counsel by failing to raise them in the state

court. The dissent similarly argues that Woods’s claims are

meritless and that we should therefore reject Woods’s

Martinez arguments. However, given the nature of the IAC

claims, we believe that the substantiality and ineffectiveness

issues should be addressed in the first instance by the district

court. As Judge Watford observed in Detrich, determining

whether these requirements are satisfied generally “requires

a highly fact- and record-intensive analysis.” 740 F.3d at

15 The State also argued that its position is supported by the Eighth

Circuit’s decision in Dansby v. Norris, 682 F.3d 711, 729 (8th Cir. 2012). 

Dansby has since been vacated and remanded to the Eighth Circuit for

further consideration in light of Trevino. See Dansby v. Hobbs, 133 S. Ct.

2767 (2013).
WOODS V. SINCLAIR 51

1262 (Watford, J., concurring). Here, evaluating the

substantiality of the new IAC claims requires consideration

of the State’s DNA evidence and the reliability and propriety

of the inferences the State’s expert drew from it, as well as

the likelihood that the DNA evidence was contaminated. 

Even the State acknowledges that “[t]he new claims . . .

involve multifaceted allegations of a scientific nature,

concerning counsel’s investigations into the DNA evidence,

the State’s handling of the DNA evidence, and an expert’s

review of the DNA evidence.” Moreover, Woods argues that,

on remand, he should be afforded an evidentiary hearing and

an opportunity to expand the record. With an appropriate

showing, he may pursue such remedies in the district court. 

See Dickens, 740 F.3d at 1321; Detrich, 740 F.3d at 1246–47

(four-judge plurality opinion). Allowing the district court to

consider these issues in the first instance and to potentially

conduct an evidentiary hearing will greatly aid this court’s

review. Detrich, 740 F.3d at 1262 (Watford, J., concurring). 

We therefore remand to the district court so that it may

determine in the first instance whether Woods’s DNA-IAC

claims are substantial and whether PCR counsel was

ineffective for failing to raise them. Id. at 1254 (four-judge

plurality opinion); see also Dickens, 740 F.3d at 1320.16

16 We leave for the district court to resolve whether an evidentiary

hearing should be held in connection with Woods’s Martinez claims. To

the extent that the State argues that Pinholster and § 2254(e)(2)

categorically bar Woods from obtaining such a hearing or frompresenting

extra-record evidence to establish cause and prejudice for the procedural

default, we reject this argument. See Dickens, 740 F.3d at 1320–22;

Detrich, 740 F.3d at 1247.
52 WOODS V. SINCLAIR

2. The autoradiograms

Woods argues that his counsel’s failure to ensure that the

DNA autorads17 went into the jury room amounted to a

Strickland violation. At trial, the autorads were used to help

illustrate Dr. Brown’s testimony regarding DNA. In re

Woods, 114 P.3d at 621. The jurors were informed that the

autorads were for demonstrative purposes only. Id. During

deliberations, the jury asked to see the autorads, but the trial

court denied the request on the basis that they were only used

for illustrative purposes. Id. Neither the prosecution nor

defense counsel objected to this ruling. Id.

The Washington Supreme Court held that, “when an

exhibit is used for illustrative purposes only and the jurors are

instructed that the exhibit is not evidence, than [sic] the

exhibit should not go to the jury room.” Id. at 622 (citing

State v. Lord, 822 P.2d 177, 194 (Wash. 1991)). Thus, the

court held that the trial court correctly refused to send the

autorads to the deliberation room for consideration. Id. at

428. We are bound to defer to that interpretation of

Washington state law. See Bradshaw, 546 U.S. at 76. In

light of that ruling, Woods cannot show prejudice resulting

from his counsel’s failure to object to the trial court’s

exclusion of the autorads from the jury deliberation room. 

Even if defense counsel had objected, the objection would

have been properly overruled under Washington law. Woods

is therefore not entitled to habeas relief on this claim.

 

17 An autoradiogram is “a photographic recording of the positions on a

film where radioactive decay of isotopes has occurred.” Committee on

DNA Technology in Forensic Science et al., DNA Technology in Forensic

Science 167 (1992).
WOODS V. SINCLAIR 53

G. Venus Shaver’s testimony

In his federal habeas petition, Woods asserted that he

received ineffective assistance of counsel when his trial

counsel failed to address Venus Shaver’s “recovery” of her

memory of the attack and failed to cross-examine her

adequately on her prior false claim that Woods raped her. 

The district court concluded that because Woods had failed

to fairly present these claims to the state court, they were

procedurally barred. We agree that these claims were not

fairly presented to the state court.

In his opening brief, Woods admits that he did not

specifically address in his PRP his counsel’s failure to

impeach Venus Shaver effectively. In fact, Woods’s

Washington Supreme Court PRP makes no mention of either

Venus Shaver or her “recovered” memories. He argues,

however, that because these new arguments do not

fundamentally alter his claim that trial counsel were

ineffective and unprepared to impeach witnesses, he fully and

fairly presented them to the state court.

Although Woods alleged the specific Sixth Amendment

guarantee recognized by Strickland, his state court petition

did not make any reference to his counsel’s failure to impeach

Venus Shaver. The most analogous claim is Woods’s

allegation that his counsel failed to impeach Johnny Knight

properly. That claim simply did not provide a sufficient

factual basis for the state supreme court to have a fair

opportunity to apply controlling legal principles to the facts

relating to the claim. Thus, Woods’s claim relating to Venus

Shaver was not fairly presented and may be procedurally

defaulted.
54 WOODS V. SINCLAIR

Woods contends, however, that he has established cause

and prejudice excusing his procedural default on this issue. 

In particular, he contends that his failure to raise this issue

before the state supreme court was a result of ineffective

assistance of his post-conviction counsel. We vacate the

district court’s ruling and remand this claim to the district

court so that it may consider in the first instance whether

Woods can show cause and prejudice under Martinez.

H. Cumulative Deficiencies

Woods argued in his PRP that the cumulative impact of

his counsel’s deficiencies prejudiced his defense and requires

reversal of his conviction. We have previously recognized

that “prejudice may result from the cumulative impact of

multiple deficiencies.” Cooper v. Fitzharris, 586 F.2d 1325,

1333 (9th Cir. 1978). “[A]lthough individual errors may not

rise to the level of a constitutional violation, a collection of

errors might violate a defendant’s constitutional rights.” 

Davis, 384 F.3d at 654 (citing Harris v. Wood, 64 F.3d 1432,

1438 (9th Cir. 1995)). Although Woods’s trial counsel might

not have provided a model defense, counsel’s “missteps and

misjudgments did not render [Woods]’s trial fundamentally

unfair.” Id. We therefore affirm the denial of relief on

Woods’s claim of cumulative deficiency.

18

18 This holding is subject to the caveat that, should the district court

ultimately conclude that Woods’s procedural default of his DNA-IAC and

Venus Shaver-related IAC claims was excusable and that trial counsel’s

assistance was ineffective with respect to these subjects, the district court

may reevaluate whether the cumulative impact of counsel’s deficiencies

requires reversal.
WOODS V. SINCLAIR 55

XI. CONCLUSION

For the foregoing reasons, we affirm in part and vacate in

part the district court’s denial of Woods’s petition. We

remand for the district court to consider in the first instance

whether Woods can show cause and prejudice under

Martinez.

AFFIRMED in part, VACATED in part, and

REMANDED.
56 WOODS V. SINCLAIR

TALLMAN, Circuit Judge, concurring in part and dissenting

in part:

The Supreme Court gave Dwayne Woods an inch. The

majority gives him a mile. When the Court remanded this

case to the same panel that affirmed Woods’s sentence in

2011, it gave Woods the opportunity to argue that his four

procedurally defaulted claims deserved a federal audience. 

But none of these new claims cast any doubt on Woods’s

manifest guilt for the brutal murders of Jade Moore and

Telisha Shaver on April 27, 1996. Fortunately, the third

victim of his senseless violence, Venus Shaver, survived to

testify against him at trial. And even Woods himself invited

his death sentence when, at the penalty phase of the trial, he

told the jury that he had “no objection” to a death sentence,

and asked them to “go back and return a vote to impose the

death penalty.”

Because none of Woods’s new claims would lead a

reasonable juror to conclude that Woods did not murder Jade

Moore and Telisha Shaver, or attempt to murder Venus

Shaver, no court can provide Woods the relief he seeks. The

majority’s remand serves only one purpose: unnecessary

delay. I respectfully dissent from Sections X.F.1, X.G, and

footnote 18 of the majority opinion.

I

On remand from the Supreme Court, we must now

consider whether Woods’s four procedurallydefaulted claims

meet the narrow requirements of Martinez v. Ryan, 132 S. Ct.

1309 (2012). Woods alleges that his trial counsel provided

ineffective assistance by failing to: (1) call an expert witness

to refute Venus Shaver’s claim that she had recovered
WOODS V. SINCLAIR 57

memories of the attacks; (2) cross-examine Venus about a

false rape allegation against Woods; (3) call a defense expert

to interpret the results of the State’s DNA evidence; and

(4) explore the possibility of DNA contamination. Woods

argues that the ineffectiveness of his post-conviction counsel

(“PCR counsel”) excuses the procedural default of these four

claims, and that had the jury heard more on these topics, there

is a substantial possibility he would have been acquitted.

But Woods is entitled to a remand under Martinez only if

he can show that: (1) PCR counsel was ineffective under

Strickland v. Washington, 466 U.S. 668 (1984), for not

raising a claim of ineffective-assistance-of-trial-counsel

(“IAC”), and (2) “the underlying ineffective-assistance-oftrial-counsel claim is a substantial one, which is to say that

. . . the claim has some merit.” Martinez, 132 S. Ct. at 1318.

The Supreme Court has said that to succeed on a

Strickland IAC claim, Woods must show not only that his

trial counsel was deficient but also that this deficient

performance caused prejudice. Strickland, 466 U.S. at 694. 

Even if Woods proves that his trial counsel was manifestly

ineffective, Woods cannot prevail unless he shows

prejudice—“a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceedingwould have

been different.” Id. Because Woods challenges only his

conviction (and not his death sentence), he must demonstrate

that his new claims would cause at least one reasonable juror

to find him “not guilty” of the murders of Jade Moore and

Telisha Shaver, or the attempted murder of Venus Shaver. 

This is simply not possible in the face of the incriminating

evidence against him.
58 WOODS V. SINCLAIR

None of Woods’s new claims can refute the strength of

the inculpatory evidence conclusively demonstrating his

guilt: (1) Sherry Shaver’s identification of Woods as the man

she saw fleeing the crime scene on the morning of the

murders; (2) Jade Moore’s statements to a treating paramedic,

nurse, and physician, before she succumbed to her injuries,

that “a man named Dwayne” hit her “with a baseball bat” and

“sexually assaulted” her, and Jade’s statements to her father

that her attacker was “Dwayne,” “a guy that Venus had been

going out with”; (3) expert testimony that Woods’s latent

fingerprints were found on a bottle and on a telephone in the

trailer; (4) the fact that Woods’s coat and shirt were found at

the crime scene; and (5) paging and telephone records

demonstrating that Woods’s pager had been called from the

trailer a few hours before the murders. Nor do Woods’s new

claims refute the fact that, immediately after the murders,

Woods was seen at two businesses near the crime scene, and

was then dropped off in downtown Spokane near a number of

ATMs where Jade Moore’s stolen ATM card was used to

make withdrawals. Finally, the new claims do not challenge

Woods’s statements to a friend that he was “a wanted man,”

or that Woods led police on a car chase as they attempted to

apprehend him, permitting the jury to infer his consciousness

of guilt.

The strength of the evidence against Woods was

overwhelming. As a result, there is no way Woods can show

that, but for counsel’s errors, a reasonable juror would have

found that Woods did not murder Jade Moore and Telisha

Shaver or attempt to murder Venus Shaver. While it may be

“standard practice” for us “to remand to the district court for

a decision in the first instance without requiring any special

justification for so doing,” we need not do so “where there is

little doubt about the correct answer.” Detrich v. Ryan,
WOODS V. SINCLAIR 59

740 F.3d 1237, 1248 (9th Cir. 2013) (four-judge plurality

opinion). The majority does not tell us what the district court

should do on remand in the face of this record other than

reiterate this obvious conclusion. Because Woods cannot

possibly show prejudice under Strickland, his new claims are

not “substantial,” and a remand to the district court is

unwarranted even under Martinez. See also Lopez v. Ryan,

678 F.3d 1131, 1139 (9th Cir. 2012) (concluding that a claim

was not substantial under Martinez where the petitioner could

not show prejudice under Strickland).

II

Even if I thought it necessary to review the performance

of Woods’s trial counsel, I would reach the same conclusion:

Woods is not entitled to a remand. None of Woods’s newly

alleged IAC claims demonstrate that Woods’s counsel’s

performance “fell below an objective standard of

reasonableness.” Strickland, 466 U.S. at 687–88. Nor would

any of Woods’s specific claims have been reasonably likely

to change the outcome of his trial. Because Woods’s new

claims have no merit, they are not substantial under Martinez.

A

Woods first alleges that Venus Shaver “had complete

amnesia of the events of April 27, 1996.” Dr. Demakas, a

neurosurgeon who treated Venus, testified that when he was

first examining Venus in the emergency room, she “did not

recall what happened” and “was amnesic from the accident.” 

At that time, Venus was still suffering from the immediate

side effects of blunt head trauma and a large skull fracture. 

Woods argues that, by the time of trial, Venus had recovered

“considerable memory of the events,” and he contends that
60 WOODS V. SINCLAIR

his counsel was ineffective for failing to call a

neuropsychologist who would have testified that such

memory recovery is impossible. But Woods’s new claim is

much ado about nothing.

While Dr. Demakas did testify that Venus was “amnesic,”

he also stated that, while it would not be “uncommon” for

Venus to recover memories, these memories might be out-oforder or influenced by suggestive stimuli. Thus, through Dr.

Demakas’s testimony, the jury heard that Venus did not

immediately recall the events of that evening, and that any

recovered memories could be suspect. Additional testimony

on this point would have been largely cumulative.

Also, Venus’s memoryproblems were discussed at length

during the trial by Venus herself. Venus recalled in great

detail bringing Woods to her house, Woods growing angry,

Woods sexually assaulting her, Woods slamming her head

into a door, and her repeated attempts to get Woods to leave. 

After that, however, her memory went blank. The “last thing

[she] saw” was “[Woods] coming up to [her].” In response

to counsel’s question of “what happens then?” Venus said she

“[didn’t] remember . . . probably cuz [sic] I got hit.” She

repeatedly recognized that her memory of the remainder of

the evening was practically non-existent. But the jury could

easily fill in the rest of the story from all available evidence,

including the recovery from the crime scene of an aluminum

baseball bat stained by human blood and the large skull

fracture in Venus’s head consistent with being hit by a blunt

instrument.

Although Venus could not recall the events of the rest of

the evening, except for a few “flashes of memories,” defense

counsel expressly suggested to the jury what the source of
WOODS V. SINCLAIR 61

Venus’s recovered memories reallywere: newspaper articles,

television accounts, and family statements. Defense counsel

got Venus to admit on cross-examination that: (1) she had

read a lengthy news article about the case while in the

hospital even though she knew she wasn’t supposed to;

(2) she had watched television accounts of the attack; (3) a

television account featured a picture of Woods; (4) she spoke

with her family at the hospital about what happened to her;

and (5) Dr. Demakas told her that she would have “flashes of

memories” about the attacks.

Woods alleges that his counsel should have called an

expert to testify on the issue of recalled memory. But the

expert’s proposed testimony would have been cumulative. 

Given that counsel had introduced ample evidence of Venus’s

memory problems, counsel’s failure to introduce expert

testimony on this point was not deficient under Strickland. 

The jury heard all of the impeachment through competent

cross-examination but obviously believed the eyewitness

victim who was present when Woods committed his atrocious

crimes. No remand is appropriate on this insubstantial claim. 

See Sexton v. Cozner, 679 F.3d 1150, 1157–58 (9th Cir.

2012).

B

Woods next argues that counsel should have aggressively

challenged Venus regarding a statement she allegedly made

accusing Woods of rape. But Woods fails to show that his

counsel’s decision not to cross-examine Venus was deficient. 

As the victim of this savage attack, Venus was an extremely

sympathetic witness. Arguably, Woods’s counsel acted

wisely by not pursuing this point on cross-examination to

avoid further alienating the jury. This strategic decision, by
62 WOODS V. SINCLAIR

understandably wary defense counsel, is essentially insulated

from Strickland reversal. Id. at 1156; Strickland, 466 U.S. at

689. For that reason, Woods’s counsel was not deficient.

C

Next, Woods challenges his counsel’s failure to call an

expert to interpret the results of a DNA test implicating

Woods. At trial, the State’s DNA expert, Dr. John Brown,

testified that the male DNA recovered from the crime scene

matched Woods’s DNA at four of six loci. Dr. Brown

concluded that, at the other two loci, the results were

inconclusive, although they did not exclude Woods as the

donor. Woods argues that, if called to testify, Dr. Donald

Riley would have explained that the results at five of the six

loci were inconclusive, meaning that Woods’s DNA

conclusively matched the DNA recovered at the crime scene

at only one locus. But even if Woods’s counsel was deficient

for failing to rigorously challenge the DNA evidence with the

assistance of a qualified DNA expert, Woods would have, at

best, only neutralized this evidence, a narrow sliver of the

State’s overwhelming case against him. Even without the

DNA, a jury would still find Woods guilty as charged.

D

Finally, Woods claims that his counsel was ineffective for

failing to argue that a blood spill in the crime lab might have

led to Woods’s blood sample being commingled with vaginal

swabs taken from Jade Moore. At trial, State crime lab

forensic scientist William Morig explained that Woods’s

blood vial spilled in an area of the lab where hair examination

took place. Morig testified that once the spill was discovered,

the sample was immediately destroyed. On cross-
WOODS V. SINCLAIR 63

examination, Woods’s counsel re-confirmed the spill. Thus,

on two separate occasions, the jury heard that a spill took

place in the lab. Trial counsel was not ineffective for

declining to introduce additional cumulative testimonyon this

point. Because the claim is not “substantial” under Martinez,

there is no need to remand.

III

In support of their decision to remand, my colleagues note

that “[a]llowing the district court to consider these issues in

the first instance and to potentially conduct an evidentiary

hearing will greatly aid this court’s review.” Opinion at 51. 

They cite to Detrich, where we chose to remand the Martinez

question to the district court to allow it to decide the merits

first. But even Detrich recognized that if the evidence of

guilt was “overwhelming and unassailable,” then “we could

safely conclude that [the petitioner] has no real chance of

showing that his new trial-counsel IAC claims are

‘substantial.’” Detrich, 740 F.3d at 1249. Such is the case

here. Because Woods’s guilt is manifest, we can declare on

the current record that his claims are not substantial. See

Sexton, 679 F.3d at 1158 (concluding that remand to the

district court was improper under Martinez because Sexton’s

claim was not “substantial”); Murray v. Schriro, 746 F.3d

418, 458 (9th Cir. 2014) (concluding that Murray’s

ineffective-assistance-of-trial-counsel claim lacked sufficient

merit to warrant a Martinez remand).

Moreover, Detrich is distinguishable. In Detrich, the

“central question” was “whether any of Detrich’s newly

presented trial-counsel IAC claims prejudiced him at

sentencing.” 740 F.3d at 1249 (emphasis in original). 

Because Detrich’s jury was split on whether Detrich was
64 WOODS V. SINCLAIR

guilty of first-degree murder or felony murder, the prejudice

inquiry hinged on whether, if evidence that Detrich was the

actual killer was weaker, Detrich would nonetheless have

been sentenced to death. Id. This was a close question—“if

the trial evidence were close, then it would not take too much

new exculpatory evidence to call into question the trial

judge’s sentencing decision.” Id. Here, Woods’s habeas

claims are directed only to his conviction, not his sentence. 

(Woods did not present any mitigating evidence; instead, he

invited the jury to impose the death sentence.) Thus, the

relevant prejudice inquiryis not whether Woods’s new claims

may have affected the sentence imposed, but whether the new

claims cast doubt on Woods’s guilt. They do not.

The majority also notes that “evaluating the substantiality

of the new IAC claims requires consideration of the State’s

DNA evidence and the reliability and propriety of the

inferences the State’s expert drew from it, as well as the

likelihood that the DNA evidence was contaminated.” 

Opinion at 51. But the majority focuses on counsel’s

deficient performance and turns a blind eye to the fact that,

even if Woods establishes counsel’s ineffectiveness, he must

still show prejudice under Strickland. See Strickland, 466

U.S. at 687; Lopez, 678 F.3d at 1139. Even if Woods

convinces us that his trial counsel was glaringly ineffective,

he cannot possibly show that anyreasonable juror would have

found him not guilty.

IV

In light of the overwhelming evidence against him, no

court can grant Woods the relief he seeks. The majority

ignores this foregone conclusion, favoring endless litigation

instead. The only purpose this remand will serve is to delay
WOODS V. SINCLAIR 65

for years the seventeen-year-old judgment properly obtained

against a murderer who asked the jury to impose the death

sentence upon him for what he had done. I respectfully

dissent from Sections X.F.1, X.G, and footnote 18 of the

majority opinion. I concur in the remaining sections

upholding the denial of Woods’s other claims for habeas

relief.