F OR P UBLICATION



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

D W A Y N E A N T H O N Y W O O D S , Petitioner-Appellant

,

v.

S T E P H E N S I N C L A I R , R espondent-Appellee

. No. 09-99003

D.C. No. 2:05-CV-00319-L RS

OPI NI ON

On Remand F rom The United States Supreme Court

F iled Aug ust 25, 2014

B efore: Richard A. Paez , Richard C. Tallman, and Milan D. Smith, J r., Circuit J udg es.

Opinion by

J u d g e Paez ; Partial Concurrence and Partial Dissent by J udg e TallmanW O O D S V

. S I N C L A I R 2

SUMMARY *

Habeas Corpus/Death P e nalty

On remand from the United States Supreme Court, the panel affirmed in part and vacated in part the district court’s denial of a 2 8 U.S.C. § 2254 habeas corp u s p e t i tion challeng ing a conviction and capital sentence for two c ounts of ag g ravated murder in the first de g r e e and one count o f

a ttempted murder in the first deg ree, and remanded for t h e district court to consider in the f irst instance whether the petitioner can show cause and prejudice u nder Martinez v

. Ryan
, 132 S. Ct. 1309 (2012), ex cusing p rocedural default on certain claims of ineffective assistance of counsel.

The panel held that the state court did not unreasonably deny petitioner’s claim under F aretta v. California

, 422 U.S. 806 (1975), because h e had not made an unequivocal request for self-representation.

The panel held that the state court did not unreasonabl y deny petitioner’s claim that he was denied his Confrontation Clause rig hts when the trial court admitted into evidence the deceased victim’s statem e n t s to the police because they fell within the medical d iag nosis ex ception to the hearsay rule. The panel held t h a t the state court unreasonably a pplied W hite v

. Illinois

, 502 U.S. 346 (1992), by determining some of the victim’s statements were ex cited utterances, but that the error was harmless because those statements were cumulative.

* T h is su m m ary co n stitu

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

co u rt staf

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

th e read er.W O O D S V

. S I N C L A I R 3

The panel held that the state court’s decision was neither contrary to nor an unreasonable application o f Brady v

. Maryland

, 373 U.S. 8 3 (1963), and did not involve an unreasonable factual d e t e rmination w hen the state court denied petitioner’s contention that the prosecution should have disclosed the crime l a b ’ s DNA testing review process (including peer review a nd destruction of erroneous draft reports) because that evidence was not ex culpatory

.

The panel rejected a s procedurally bar red petitioner’s claim of a B rady violation in the state’s failure to disclose the full details of the spillag e of one of petitioner’s blood samples at the crime lab.

The p anel affirmed the deni a l of several o f petitioner’s claims of ineffective a ssistance o f counsel on the merits and/or for lack of prejudice.

The p anel ag reed w ith the parties and t h e district court t h at two of petitioner’s ineffective-assistance claims
reg arding DNA evidence were p rocedurally defa u lted. The panel remanded to the district c o urt so that it may determine in the first instance w hether these claims are substantial a nd whether post-conviction-relief cou n sel was ineffective for failing to raise t h e m , thereby ex cusing

, under Martinez
, the procedural default.

Th e p a nel vacated the district court’s ruling that the petitioner’s c laim that he r e c e ived ineffective assistance when his trial c ounsel f

ailed to impeach witness Venus Shaver was procedurally barred, and remanded so that the d i s t ri c t court may c onsider in the firs t i n s t ance w hether the petitioner can show cause and prejudice under Martinez

.W O O D S V

. S I N C L A I R 4

The panel affirmed the denial of relief on the petitioner’s claim of cumulative deficiency

. Concurring in part and dissenting in part, J udg e Tallman
wrote that because n one o f the p etitioner’s new claims would lead a reasonable juror to conclude that the petitioner did not

com m it 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

Suz anne L ee Elliott, L aw Office s o f Suz anne L ee Elliott, Seattle, W ashing ton, and David B . Z uckerman, L aw Offices of David B

. Z uckerman, Seattle, W ashing ton, for PetitionerAppellant.

J ohn J o seph Samson, Assistant Attorney General

, Oly mpia, W a shing ton, for Respondent-Appellee.

OP INION

PAEZ , Circuit J udg e:

I n 1997, a W ashing ton jury found Dway ne A. W oo d s g uilty of two c ounts of ag g ravated murder in the first deg ree,

one count of attempted murder in the first d eg ree, and o ne count of attempting to elude a police vehicle. A fter two day s of deliberation, the jury sentence d W o o ds to death. The W a shing ton State Supreme Court upheld his conviction and sentence, S

tate v

. W oods

, 23 P.3d 1046 ( W ash. 2001), a nd denied his petition for post-conviction relief, In re W oods

,W O O D S V

. S I N C L A I R 5

114 P.3d 607 (W ash. 2005). W oods then filed a petition for

a writ of ha b e a s corpus in federal district court, which was denied. Woods appeals from the denial of habea s r e l i e f, contending that (1) he w as denied h is Six th Amendment rig ht
to r epresent himself, (2) the state court’s admission of c ertain evidence violated the Con f r o n tation Clause, (3) the State withheld material, ex culpatory evidence in violation of Brady

v. Maryland

, 373 U.S. 83 ( 1963), and ( 4) h i s t r i a l counsel’s representation was ineffective. 1 W e have jurisdiction under 28 U.S.C. § 1291.

I n a previous opinion filed on Au gu s t 10, 2011, we affirmed the d istrict court’s order d e n y ing W oods’s h abeas

c o r p us petition. W

oods v. S inclair

, 655 F .3d 886, 891 (9 t h Cir. 2011). On March 26, 2012, the Supreme Court g ranted W o ods’s p etition for certiorari, va c a t e d our o pinion, a nd remanded the case for further co n s i d eration in lig ht o f Martinez v. Ryan
, 566 U.S. —, 132 S. C t

. 1309 (2012). I n May 2012, we ordered the parties to file supplemental briefs addressing the impact of Martinez and Sexton v. C o z n e r , 679 F .3d 1150, 1153 (9th Cir. 2 012) on this case. T hat same month, a petit i o n f

or r e h earing en banc was g ranted 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 Wo od s also alleg es th at th e State v io lated h is d u e p ro cess rig h ts w h en it m isled th e c o u rt an d d ef en se as to th e p ro g ress o f a DNA test d u rin g

sev eral h earin g s

. T h i s c l a i m , claim 6 .1 in W o o ds’ s f ed eral h ab eas p etitio n , w as n o t in clu d ed in th e C ertif icate o f A

p p ealab ilit y ( “ COA ”). A lth o u g h th e p r o secu tio n f ailed to act w ith p ro p er d ilig en ce in th e

co m pletio n o f th e DNA testin g , w e ag ree w ith th e State th at th ere w as n o p rej u d ice f

ro m an y f ailu re to n o tif

y W oo d s o f th e reaso n s f or th e d e l a y

. B ecau se w e co n clu d e th at th e claim lack s m erit, w e d eclin e to g ran t a COA

.W O O D S V

. S I N C L A I R 6

court in Detrich filed its opinion on September 3, 2 013. 740 F .3d 1 237, 1262 ( 9th Cir. 2013) (en b anc). W e ordered further supplemental briefing on the impact of Detrich

. The parties’ supplemental briefs were f iled on Septemb e r 2 7, 2013. With the ex c e p tion of the claims a ffected by Martinez
, we a g ain affirm the dis t r i c t court’s r uling s on the remaining claims for all t h e r easons set forth in our orig inal opinion. W e vacate the district court’s ruling as to the claims affected by Martinez and remand for further proceeding s in l i gh t o f that case.

I. THE CRIME 2

On F rida y , A pril 26, 1 996, Telisha Shaver w as housesitting at her aun t’s trailer home in Spokane Valley

, W a shing ton. Telisha 3 planned to spend the n ig h t at her boy friend’s h ome, but had ag reed to let her sister, Venus, a nd Venus’s friend, J ade Moore, spend the nig ht at the trailer. Venus and J ade arrived a t the trailer a t a p p r o x imately 1:45

a .m. on Saturday morning

. The women drank alcohol a nd socializ ed. At some point, Venus and J ade decided to contact Dway ne W o ods, whom V enus had p reviously dated. After the wom e n p a ge d W oods, he eventually joined them at the trailer. B y that time, approx imately 4:20 a.m., J a de was asleep.

2 T h is f actu al b ack g ro u n d is t a k e n l arg ely f ro m th e W ash in g to n State Su p rem e Co u rt’ s o p in io n af

f irm in g W o o d s’ s co n v ictio n an d s e n t en ce. S ee W o o d s , 2 3 P .3 d at 1 0 5 3– 5 9

.

3 I n th is o p i n io n w e f

req u en tly ref

er t o T elish a an d Ven u s Sh a v e r b y th eir f irst n am es f

o r th e sak e o f clarity

. W e also ref er to J ad e Mo o re b y h er f i rst n am e to av o id co n f

u sio n w i th h er f ath er, B arry

Mo o re.W O O D S V

. S I N C L A I R 7

W h ile at the trailer, W oods s e rved himself alcohol a nd talked with Venus. According to Venus’s testimony

, Woods

was upset that J ade w as a sleep and urg e d Venus to wake her
up. Venus tried to wake J ad e u p , but J ade did not respond. At this, W oods became irate a nd, according to Venus, shoved her onto the couch and attempted t o unbutton h er pants. Venus said that she initially e scaped W oods’s g rasp, but that he manag ed to g rab her ag ain and then slammed her head a nd neck ag ainst a door. Venus testified that she has no memory of what transpired from th at point forward ex cept for intermittent f

lashes of memory in which she recalls strug g ling with W o ods.

At approx imately 7:30 a.m., W oods forced J ade to wake
up at knife point. H e t o o k her to another one of the bedrooms, where Venus lay unconscious and severely beaten. W o ods forced J ade to help him loot the trailer and to g ive him her A TM card and personal identificat i o n number. He then raped J ade orally

and vag inally

. During the attack on J ade, Telisha re t u r n e d to the trailer
to retrieve some personal e ffects. W o o d s s eiz ed a nd bound her

. J ade, who was lay ing on the floor and feig ning unconsciousness, later stated that she heard a baseball bat hit Telisha’s head. J a d e said that she was then hit in the head with the bat, knocked u n c o n s c ious, and had no memory o f what happened after that point.

W h en Telisha failed to return h ome that morning

, her mother, Sherry Shaver, decided to g o to the trailer t o check

on her. She arrived at app r o x imately 10:25 a .m. and f ound the door locked. Peering throug h a window in the trailer, she

saw a man

— w hom she later identified as W oods—ex iting from the other side of the trailer. She pounded o n the lockedW O O D S V

. S I N C L A I R 8

trailer door, and J ade, naked and bea t e n , e ventually opened the door. Sherry

Shaver called 911.

Emerg ency personnel ar ri v e d at the trailer and took the vic t ims to the hospital. W hile en route to the hospital, J ade told a paramedic about the events of the prior evening

. At the hospital, she als o told her father, the emerg ency room phy sician, and a nurse about what had transpired. Of the three victims, only Venus su r v i v e d. T elisha died without

ever r e g aining consciousness. Despite initially responding to medical treatment, J ade died the following day

. Shortly after Sherry Shaver r eported seeing W o ods leave the trailer, h e was seen at t w o local businesses close to the crime scene. At one of those busi n es s es, W oods convinced another patron to drive him to d o w n t o wn Spokane. W ithin close prox imity to where W o ods was dropped off, a series o f cash machine withdrawals occurred wi t h the use of J ade’s ATM card.

At approx imately 12:30 p .m. that s a m e day

, W o o ds ran into his brother-in-law, L ouis Th o m p s on, at a g rocery store in the downtown area. Thompson g ave W oods a r ide t o t he home of W o ods’s friend, J ohn n y K n i g ht. Knig ht and his friend, Mary Knapp, testified that w hen W oods came to their home, he offered to sell them some jewelry and to buy one o f Knig ht’s automobiles.

W o ods spe n t the nig ht at Eliz abeth Gerber’s apartment. The following mo rning

, Gerber asked W oods to leave the apartment. At trial, she testified that W o ods became ag itated and said h e was “ a wanted man” and she was “putting him on the streets.”W O O D S V

. S I N C L A I R 9

L ater that day

, Knig h t heard a television b r o a d cast that

a u t h o rities were searching for W o ods. I n response, Knigh t called the police and agr eed to lead them to W oods. W ith Knig ht’s cooperation, sherif f’s deputies followed Knig ht a s h e went to pick up W o o ds. After Knig ht picked W oods u p , the deputies pulled the car over. Knig ht g ot out, but Woods jumped into the driver’s seat and sped away

. The deputies eventually caug ht, arrested, and interrog ated him.

W o ods to ld the interviewing detectives that he fled because h e h a d a number o f “outstanding traffic violations” and some “ traffic warrants.” At the time of his arrest, Woods had no outstanding traffic v iolations. W oods denied any responsibili t y f

or the crimes and claimed he had not been in
contact with Venus for a b o u t a week. He further denied knowing a woman n amed J ade. He als o told detectives that he had not been in Spokane V alley for about a month, that he had never visited a trailer home, and that there was no log ical

ex p lanation of why his f

ing erprints would have been found in the trailer.

II. P RE-TRIAL P ROCEEDING S

W o ods was charg e d with two counts of ag g ravate d f i rst deg ree murder, one count of attem p ted first d e g ree murder, and in the alternative, one count of first deg ree assault. 4 At his arraig n ment on May 30, 1 996, W oods pleaded n ot g uilty
to t h e charg e s and waived his rig h t to b e tried within six ty day s of his a rr aig n ment, but not later than November 12, 1996. The trial was set for October 21, 1996.

4 T h e State later am en d ed th e in f o rm atio n to in clu d e a ch arg e o f elu d in g p o lice.W O O D S V

. S I N C L A I R 10

I n the m e a n t ime, the prosecution p rocessed the phy sical evidence in the case. Doctors had completed “rape kits” for all three victims, including taking a swab from the vag ina o f each victim. The rape kits were sent to the W ashing ton State Patrol Crime L aboratory (or “W SPCL ”) in Spokane. At the Spokane lab, W illiam Morig e x amined the swabs in search o f
sperm cells that mig ht contain the D N A o f the murder suspect. M o ri g found no sperm on the swab taken from Venus Shaver, but found usable samples f rom the swabs taken from Telisha Shaver and J ade Moore. The prosecution also obtained a vial of W oods’s blood to use in D N A t ests. That sample was sent to the Spokane lab as well. The W SPCL i n Spokane did not have the required DNA testing equipment, s o M orig ’ s responsibilities were limited to preparing DNA sampl e s f rom the rape kits and W o ods’s b lood that could be submitted to other labs f or DNA t e s t i n g and analy sis.

On Aug ust 23, 1996, Woods’s d efense counsel moved for

a continuance of the trial date b ased on the fact that they h ad
not rec e ived the DNA test r esults and that they needed additional time to produce mitig a tion evi d en ce. Althoug h W o ods objected to this motion, defe nse counsel arg ued that unless a c ontinuance w as g ranted, W oods would be unable to receive a fa ir trial. The trial c ourt ultimately g r anted the motion and reset the trial date for March 17, 1997.

On O c t o ber 1 6, 1996, the prosecutor informed the court that the DNA e vidence had not y et been sent for testing

. The prosecutor represented that the results from the testing would be received by J anu ar y 1, 1997. Consequently

, the court ordered that the D NA test results b e disclosed to the defense b y J anuary 1, 1997. The prosecutor also informed the court that the vial of W o ods’s blood had been mistakenly froz enW O O D S V

. S I N C L A I R 11

and had cracked. T h e prosecution therefore needed a new blood s a m ple for testing purposes. W oods objected to providing a n ew sample a nd renewed h is objection to h aving the trial commence afte r t h e orig inal date of October 21, 1996. The court overruled both objections.

B y J anuary 2, 1997, the W SPCL had returned only one o f
two DN A t es t r esults. That test, performed by a private
company , showed that W oods was not the source of semen found in T e l i sha’s body

. At a hearing on J anuary 13, 1997, the prosecutor informed the trial court that the testing of the
sperm sample taken from J ade Moore was not complete. W SPCL performed that testing at its more advanced Seattle laboratory because it required a complex testing procedur e. The prosecutor informed the court that the test would not be complete until the middle of F ebruary 1997. Defense counsel moved to ex clude admission of the DNA evidence as a result of the delay

, to dismiss the c ase becaus e o f prosecutorial mismanag ement, and to continue the case in order to have time to adequately prepare f or trial in lig ht o f t h e d e lay in DNA testing

. The trial court denied the f irst two motions but
g ranted the last and continued the trial t o May 19, 1997. B efore trial, W SPCL returned the results of the DNA testing performed in Seattle, which showed that the DNA taken from W o ods’s second blood sample matched the D NA taken from the sperm recovered from J ade Moore.

III. G UILT P HASE P ROCEEDING S

At trial, V enus and Sherry Shaver identified W oods as the assailant. The jury also heard J ade’s statemen t s , i ncluding her identification of W oods, via the testimony of a paramedic,
nurse, and doctor w ho treated J ade and the testimony of her father, B arry

Moore, who spoke to J ade after the attack. Dr.W O O D S V

. S I N C L A I R 12

J ohn B rown, a forensic scientist at W SPCL ’s S e a ttle laboratory

, testified that the sperm recover ed from J ade contained W oods’s DNA. A fing e rprint ex pert testified that W o ods’s f

ing erprints were on a bottle and a telephone f ound in the trailer. The jury also learned that W oods’s coat and shirt were found at the trailer and saw pag ing and t e l ephone

rec o rds demonstrating that W oods’s p ag er had been called from the trailer several times during the early hours of April 27, 1996.

The defense the o r y was that W oods could not have murdere d Telisha and J a de or assaulted Venus b ecause he

was dining a t a bar in downtown Spokane at the time the crimes occur

r ed. To support this alibi defense, the defense presented testimony from an ex pert on ey e wi tness mi s identification and from a bartender w ho testified that he saw W oods at a downtown bar on the evening in question.

The jury found W oods g u ilty of two counts of ag g ravated murder, one count o f attempted murder, and one co u n t o f attempting to elude police officers.

IV. P ENALTY P HASE P ROCEEDING S

W o ods in s tructed his attorney s not to p r e sent any mitig ating e vidence a t the penalty phase o f t h e trial. Concerned a

bout W ood s’s mental state, defense counsel requested a continuance of the penalty phase in o rder to have W o ods’s mental capacity assessed. The trial court d enied the motion and order e d t h e trial to commence that a fternoon. The prosecution offered the t e stimony of Sherry Shaver a nd B arry Moore, presented photog raphs of Telisha and J ade, a nd entered into evidence cer t i f i e d judg ments of W oods’s prior convictions.W O O D S V

. S I N C L A I R 13

Pursuant to W oods’s instructions, d efense counsel d id not present a n y mitig ating evidence. Woods did, however, invoke his rig ht t o a llocution a nd made the following statement to the jury :

W e ll, ladies a

nd g entlemen, y o u heard f rom [ the prosecutor] and so y o u know that he’s asking that y ou impose the d eath p e n al ty

. I j u s t want to say that I have no objection. Also, I just want to remind y ou t h a t a few weeks back during individual voir dire each o f
y ou was asked if y ou could, in f act, impose the death penalty

. I believe a t that time e ach of y o u said y o u could impose the death penalty providing there’s not sufficient mitig ating circumstances.

So I am here to tell y ou there’s a bsolutely
none, n ot one. So I as k that each of y ou g o back a n d r eturn a vote to impose the death penalty . Thank y ou.

After d eliberating for two day s, the jury f ound that there were insufficient mitig ating circumstances to merit lenienc y

. W o ods was sentenced to death.

V . STATE AND F EDERAL P OST-CONVICTION

P R OCEEDING S

The W ashing ton Supreme Court a f firmed the convictions and se n t e n ce on direct appeal. S ee W oods

, 23 P.3d at 1079. The Supreme Court denied certior ari. See W oods v

. W ashingto n , 5 3 4 U.S. 964 (2001). W oods then filed a personal restraint petition (“ P R P ” ) in the W ashing tonW O O D S V

. S I N C L A I R 14

Supreme Court. Woods raised eig hteen cla ims for relief, including an ineffective assistance of c ounsel (“I AC”) c laim,

a Brady c laim, a claim that the jury had been i m p r o p erly prohibited from viewing certain evidence, and a claim that newly discove r ed evidence required a new trial. The W a shing ton Supreme Court d enied W oods’s petition. See I n re W o ods , 114 P.3d at 611.

W o ods nex t filed a federal habeas petition. The State’s

answer raised a number of procedural-bar defenses, including

a claim that W oods h ad not pro p erly ex hausted his claims. The district court bifurcated the b riefing t o f irst determine whether any o f W o o ds’s claims w ere p rocedurally barred. On the b asis of this f

ir s t r o u n d o f briefing

, the district court concluded that some p o r t i ons of W oods’s I AC claims a nd Brady c laims were procedur a l l y barred. The court then considered W o ods’s remaining clai m s o n the merits, a nd ultimately

dismissed the petition in its entirety

.

W o ods file d a timely notice of appeal and moved for a COA on all o f his claims. The district court g ranted a limited COA, the scope of which we address below.

VI. STANDARD OF REVIEW

W e review de novo a district court’s d enial of a prisoner’s petition for habeas relief. B rown v. Ornoski

, 503 F

. 3d 1006, 1010 (9th Cir. 2007). The district court’s finding s of fact a re reviewed for clear error. Id.

B e c a u s e Woods filed his federal h abeas petition a fter 1996, the Anti-Terrorism and Effective Death Penalty Act o f 1996 (“AEDPA”) g overns this action. See id. The AEDPA requires federal courts to defer to the last reasoned state courtW O O D S V

. S I N C L A I R 15

decision. Id. A f

e d er a l court may g rant a state prisoner’s habeas petition with respect to a claim that w as “adjudicated

on the merits in S t ate court proceeding s” o nly if the adjudication “( 1) resulted in a decision that was contrary to,

or involved an unreasonable application of, c l e a r ly established F ederal law, as determined by the Supreme Court of the United States; or (2) resulted in a deci s i o n t hat was based on an unreasonable determination of the facts in lig ht of the evidence presented in t h e S tate court proceeding

. ” 28 U.S.C. § 2254(d).

A state court d e c ision is “cont ra r y t o ” federal law if it

a pplies a rule that contradicts the g overning law set f o r t h i n Supreme Court cases o r if it “confronts a set of f acts that a re materially indisting uishable from a d e c ision of [ the Supreme] Court and nevertheless arrives at a r es ult different from [ Supreme Court] precedent.” W illiam s v. Taylor

, 5 29 U.S. 362, 405–06 (2000). A state court de c i sion involves an “unreasonable application” o f federal law if “the state court identifies the c orrect g overning leg al rule from [ the Supreme] Court’s cases b ut u nreasonably applies i t to the facts of the particular state prisoner’s case” or if i t “e ither unreasonably

ex t ends a leg al principle from [ the Supreme Court’s] precedent to a new contex t w here it should not a pply o r unreasonably refuses to e x tend that principle to a new c ontex t where it should apply .” Id. at 407.

I n a ssessing under section 2 2 54( d ) (1 ) whether the state court’s leg al conclusion w as contrary to or an unreasonable application of f

e d er a l law, our “review

. . . is limited to the record t hat was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster

, 131 S. Ct. 1388, 1 3 9 8 ( 2011). W e consider c ircuit precedent for the limited
p urpose of assessing what constitutes “clearly establish e d ”W O O D S V

. S I N C L A I R 16

S u preme Court law and whether the state court applied tha t law unreason a b ly

. Clark v

. Murphy

, 331 F .3d 1062, 1069 (9th Cir. 2003), overr u led o n other grounds by Lockyer v

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

V II. SELF

- R EP R ESENTATION

W o ods contends that he made an u nequivocal request to represent h im s e l f a n d that the trial court was thus oblig ed under Faretta v. California

, 422 U.S. 806 (1975), to conduct

a colloquy to determine whether h is request was v o l u ntary , knowing

, and intellig ent. The c ourt’s f ailure to do so, Woods
arg ues, violated his Six th Amendment r ig ht to s e lfrepresentation. On direct appeal, the W ashing ton State Supreme Court concluded that W o ods had failed to make an unequivocal r equest. See W oods

, 23 P .3d at 1061–62. The district court ag reed, and we affirm.

Under Faretta
, a criminal defendant may invoke the rig ht of self-representation b y making an unequivocal request, a nd knowing ly and intellig ently waiving the r i gh t to counsel. Faretta
, 422 U.S. at 835. Here, d uring pre-trial proceeding s, W o ods twice informed the court that he opposed any continuance o f the trial date. F i r s t , on Aug ust 16, 1996, W o ods informed the court that h e opposed any e x tension o f time for the prosecution to f ile its n o tice of special sentencing proceeding 5 or any further continuance of his t r i a l d ate. On

5 Un d er W ash in g to n l aw , w h en a crim in al d efe n d an t is elig ib le f o r th e d eath p en alty

, th e State i s req u i red to f ile a n o tice o f sp ecial sen ten cin g p ro ceed in g w ith i n t h i rty d ay s af ter th e d ef

en dan t’ s arraig n m en t. W ash

. Rev

. Co d e § 1 0 .9 5.0 4 0 (2 ). If th at n o tice is n o t tim ely f iled

, th e State m ay

n o t seek t h e d eath p en alty

. Id

. § 1 0 .9 5 .0 4 0 (3 ). O n d irect ap p eal, Wo o d s arg u ed t h at th e State h ad f

ailed to co m

ply w ith t h is req u irem en t, an d th at h e w as th eref

o re en titled t o a n ew trial. S ee W o o d s , 2 3 P .3 d at 1 0 6 2

– 6 3

.W O O D S V

. S I N C L A I R 17

Aug ust 23, 1996, W o ods a g ain ex pressed hi s o p position 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:

[ D EF ENSE COUNSEL ]: I think the onl y effective date we can ask for rig h t now is the 5th of May

of ‘97.

W O ODS: Your H onor, y o u kno w, I will be—I will be p repared to proceed with—with this matter here without counsel come October 21st.

THE COURT: A ll rig ht. You understand y ou have the rig ht to do that.

W O ODS: Yes.

THE COURT: Counsel, have y ou discussed this with y our client?

[ DEF E NSE C O UNSEL ] : No. W e have not discu s s e d t hat point at all. I t’s a surprise to

me.

T h e W ash in g t o n Su

prem e Co u rt rej ected th at arg u m en t , am o n g o th ers, in

a 5

- 1 o pin io n

. Id

. at 1 0 6 3

. J u s tice San d ers’ s d issen t, h o w ev er, co n clu ded
t h a t t h e S tate h ad in d eed erred an d t h at s u ch erro r req u ired th e co u rt to

v acate W o o d s’ s d eath sen ten ce. Id

. at 10 7 9

– 8 1 (San d ers, J
., d issen tin g ). W o o d s d id n o t raise th is state law issu e in h is f ed eral h ab eas p etitio n

.W O O D S V

. S I N C L A I R 18

W O ODS: I ’ve—I ’ve already consented to

one continuance

, Your Honor. And they —they h a v e done n othing but g rossly misuse that time there. And I feel if—if they

was g ranted a second contin u ance, it—it

w o u l d be treated in the same manner, Your Honor.

THE COURT: All rig ht. Thank y ou.

Shortly afterward, the p rosecutor stated that “the defendant is indicating he want s t o p r o c eed p ro se.” The trial judg e replied: “He didn’t indicate that. He indicated he was able to do that.” Nobody made a n y further r eferences to W o ods’s request to proceed pro se throug ho ut the remainder of the hearing

.

On A u gu s t 29, 1996, one of W oods’s attorney s acknowledg ed in a written submission to the court that he was

aware of W oods’s d e sire for a “prompt reso l ution” of the

case. On Aug ust 30, 1996, W oods’s d efense team rene wed their request f

or a continuance. A t a hearing o n the motion, the judg e stated: “I ’ ve heard Mr. W oods’s point of view a nd I take it, it is unchang ed. I s that c orrect? ” W o ods responded, “Yeah.” The trial judg e nonethel es s g r anted the motion to continue the trial to March 17, 1997.

I n concluding that W oods’s re q u est was e quivocal, the W a shing ton St a te Supreme Court analog iz e d his r equest to that made by the defendant in State v. Luvene
, 903 P.2d 960 (W ash. 1995). There, frustrated by his attorney ’s request for

a continuance, the defendant addressed the court directly a nd stated:W O O D S V

. S I N C L A I R 19

I ’ve b een here since J u ly

. . . . Y ou know, I don’t wanna sit here a n y l o ng er. I t’s me that has to deal with this. I f I ’m prepared to g o for
my self, 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 w anna g o to trial, wh y c a n ’ t I g o to trial on the d ate they have
set for my life? I ’m prepa r e d

. I ’m not even p r e pared about that. I wanna g o to trial, si r

. . . .

I don’t wanna ex tend my

time. This is out of
my leag ue f or doing that. I do not want to g o. I f he’s not ready to r e present me, then forg et that. B ut I want to g o to trial on this date.

Id

. at 966. I n Luvene
, the W ashing ton Su p r e me Court concluded that these statements, taken in the contex t of the record as a whole, could b e seen only a s a n “ e x pression o f frustration by [ the defendant] with the delay in g oing to trial and not as an unequivocal assertion of h i s r ig ht to selfrepresentation.” Id.

Noting the similarities b etween the statements in Luvene and W oods’s statement, the Washing ton State S upreme Court held:

W o o ds’s statement c annot be v iewed as an unequivocal statement of his desire to proceed
to trial pro se. His statement, like that which

we ex amined i n Luvene
, merely revealed the d efendant’s d ispleasure with h is counsels’ request to continue the trial for a l eng thy period of time. W oods, like the defendant inW O O D S V

. S I N C L A I R 20

L u v ene , was undoubtedly frustrated by the delay

, and his statement to the trial cou r t appears to have been an ex p r ession of those feeling s.

. . .

W e are satisfied that telling a trial judg e h e “will be prepared to proceed w ithout counsel” is qualitative l y different than telling a judg e t h a t one wishes to proceed pro se. W oods’s
comment was in the f

ormer categ ory and was not an e x pression of an unequivocal desire to

re p resent himself. W e conclude, therefore, that he was not denied his constitutional rig ht
to proceed pro se and i s not entitled to a new trial on that basis.

W oods

, 23 P.3d at 1062.

W e c onclude that the W a shing ton Supreme C o u rt’s determination that W o ods’s pre-trial stat e m ent, a s quoted above, w as “not an ex p ression of an unequi vocal desire to represent himself,” id.

, was n ot “an unr e a sonable determination of the facts,” 28 U .S.C. § 225 4 ( d ) ( 2 )

. Cf. United States v. Kienenberger , 13 F .3d 1354, 1356 (9th Cir. 1994) (ex pressly

considering as a question of fact whether a defendant made an unequivocal Faretta request). A lthoug h it is not apparent what factual basis the W ashing ton Supreme Court relied on to conclude that W oods was merely

ex p ressing “frust r a t i o n,” we cannot say , in lig ht o f the state trial court r e cord, that the court’s holding was unreasonable. Shortly after W oods state d t h a t he was prepared to proceed without co u n s e l, the trial court ex p ressly disag reed with theW O O D S V

. S I N C L A I R 21

prosecutor’s statement that W oods was a sking to proceed pro se, stating t hat “[ W oods] d idn’t indicate that [ he w anted to proceed pro se]

. H e i n d i c ated h e was able to do that.” W o ods had the o pportunity to c o r rect or clarify the court’s understanding if it w as incorrect. Yet neither W oods nor his counsel reasserted the request to proceed pro se ag ain during the hearing or any future hearing s. 6 I n lig ht of this ex chang e , we cannot con c l u de that the state court’s f actual determination was unreasonable. Woods is therefore not entitled to relief under this claim.

VIII. CONF RONTATION CLAUSE

W o ods nex t arg ues that a dmission o f J ade Moore’s outof-court statements at trial violated his r ig hts under the Confrontation Clause. The Six th Amendment provides that, “[ i] n all criminal p rosecutions, the accused shall enjoy the

r ig ht

. . . to be confronted with the witnesses ag ainst 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 viol a t e the Confrontation Clause if the s tatement possessed “adequate indicia o f reliability .” 448 U. S

. 5 6
, 6 5–66 ( 1980), abrogated by Crawford v. W

ashington

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

6 W o o d s claim s th at at th e n ex t h earin g h e reasserted h is rig h t t o p ro ceed
p ro se. A t th at h earin g , i n d i scu ssin g w h eth er or n o t to g ran t a

co n tin u an ce, t h e trial co u rt stated

, “ I’ v e h eard Mr. W o o d s’ p o in t of v iew

an d I tak e it, i t is u n ch an g ed

. Is th at co rrect? ” W o o d s rep lied

, “Y e a h

. ” W e can n o t reaso n ab ly discern f ro m W oo d s’ s rep ly a req u est to p ro ceed
p ro se.

7 W o o ds’ s co n v ictio n b ecam e f in al b ef o re th e Su p rem e Co u rt issu ed its

o p in io n in Cra wfo rd

, s o w e ap p ly th e clearly estab lish ed pre- Cra wfo rd Su p rem e Co u rt law

. S

ee W ho rto n v. Bo cktin g , 5 4 9 U.S. 4 0 6
, 42 1 (2 0 0 7)W O O D S V

. S I N C L A I R 22

is sufficiently r e l i a b le if it falls “ within a firmly rooted hearsay ex c eption” or bears “particulariz ed g uarantees o f trustworthiness.” I

d. at 66. The Supreme Court subsequently
recog niz ed that “spontaneous declarations”—the same ty pes of statements referred to a s “ e x cited utterances” under W a shing ton ’ s hearsay laws—constitute a “firmly rooted” hearsay ex ception. W

hite v. Illinois

, 502 U.S. 3 4 6
, 3 55 n.8 (1992). L ikewise, the Court r ecog niz ed that statements made
to phy sicians i n t h e course of diag nosis also fall within a “firmly rooted” ex ception. Id.

Here, over W oods’s objection, the trial court allowed five witnesses to testify about statements that J ade made after the attack and before her death. Deputy Doug las L awson of the Spokane County Sheriff’s D epartment, who responded to the

scene of the crime, testified at trial that he asked J ade whether she knew w ho attacked h er and that she responded it was “a
gu y named Dway

ne.” Carol Rag land-Stone, a paramedic

w h o a c companied J ade to the hospital, testified at trial that: (1) w hen she asked J ade what had happened to h e r, J ade told her that she had been hit with a bas e b a ll bat; (2) when she asked J ade who hit her, J ade responded that it w a s a man

nam ed Dway

ne; and (3) when a sked whether she was

sex ually assaulted, J ade said y es. J ade’s father, B arry Moore, testified that when he went to vi s it J ade in the emerg ency room, she g ave him a detailed account of the incident. B arry Moore repeated this a ccount to the jury

. Dr. Edminster, w ho

was wo r k ing at the h ospital where J ade was admitted, testified that he asked J ade a number of ques tions as part o f

a routine rape ex amination p rocedure. Dr. Edminster g ave

( h o l d in g th at th e n ew Cra wfo rd ru le is ap p licab le o n ly to cases th at a r e still o n d irect rev i ew an d d o es n o t ap p ly retro activ ely to cases on co llateral

rev iew ).W O O D S V

. S I N C L A I R 23

detailed testimony about J ade’s answe r s to these questions. F inally

, Dianne B ethel, a reg ister ed nurse who assisted Dr. Edminster in the administration of the rape ex amination, also testified as to J ade’s answers to the rape ex amination questions.

To determine whether Woods’s Confrontation Clause rig hts were violated, we must resolve whether J ade’s
statements to these witnesses fell wi t h in either the “firmly rooted” ex cited utterance or medical diag nosis ex c eptions to the hearsay rule. W e address the five w itnesses’s statements in turn.

F irst, W oods arg ues that some of J a de’s statements to Dr. Edminster and nurse B e thel w ere n ot e licited for purposes o f di a gn o s i s a

nd treatment a

n d therefore do not fall within the medical diag nosis ex c eption to t h e hearsay rule. Under W hite

, in o rder for a statement to fall w i t h i n the medical diag nosis e x ception, it must h ave been “made in the course o f procuring medical services, where the d eclarant knows that

a false statement may c a

use misdiag no s i s or mistreatment.” Id. at 356.

The Washing ton Supreme Court held tha t J ade Moore’s
statements to Dr. Edminster and B et h e l were admissible under this ex ception because they w ere pertinent to later
treatment for post traumatic stress disorder. B ecause this conclusion i s at least plausible and because the Supreme Court has y e t to address whether such statements relevant only to later psy cholog ical treatment fa l l w ithin the medical diag no s i s ex ception to the hearsay rule, we cannot conclude that the W as h i n g ton Supreme Court’s determination was clearly unreasonable.W O O D S V

. S I N C L A I R 24

W o ods nex t arg ues that J a de’s statements to B arry Moore and to paramedic Rag land-Stone should not have been admitted into evidence under the ex cited utterance ex ception. I n W h ite
, the Court ex plained that statements that have “been offered in a moment of ex citement—without the opportunity
to reflect o n the consequ en c e s of one’s e x clamation” fall within the ex cited utterance ex ception. Id

. I f, on the other hand, a statement is made after the declarant h a s had an opportunity

to reflect or discuss the matter with others, it no l o ng er qualifies f

or the ex cited u tterance ex ception. W i n z e r

v. Hall

, 494 F .3d 1192, 1198 (9th Cir. 2007) (i n t e rpreting W hite ).

According to the W ashing ton Supreme Court, “it was not

m a nifestly unreasonable for the trial court to admit J a d e ’s
statements to Rag land-Stone an d her father as ex cited utterances.” W

oods

, 2 3 P.3d at 1069. As to J ade’s statements to Rag land-Stone, the court noted:

[ T] he record reflects that the statements to Rag l and-Stone were made, in a spontaneous
manner, on the heel s o f a clearly startling
event.

. . . Also, it is clear that w hen J ade was making the statements to Rag land-Stone, J ade

was under the stress c aused b y the underlying assault. According to R ag land-Stone, when J ade was first moved into t h e a mbulance, Rag land-Stone said s h e was “whimpering

, like cry ing almost” and was “ v ery emotional,
very distraug h t, c lear l y u pset and in a lot o f pain.”

Id. at 1068. W e must accept the state court’s factual finding s

u nless objectively unreasonable. 28 U.S.C. § 2254(d) ( 2 ) ;W O O D S V

. S I N C L A I R 25

D a v i s v. W

oodford

, 3 84 F .3d 628, 638 (9th Cir. 2004 ). B ecause there was no evidence to the contrar y , t h e state court’s conclusion that the statements were m a d e “in a spontaneous manner, on the heels of a clearly startling event,”

was not o bjectively unreasonable. W o ods

, 23 P.3d at 1068. Given those circumstances, J ade’s statements to Rag landStone met the W

hite requir em e n t for a

n ex cited utterance: they w ere o ffered “ in a moment of e x citement—without the opportunity to reflect on the consequences of [ h e r]

ex c lamation.” W

hite

, 502 U.S

. a t 356. The state court’s conclus i o n w as therefore n ot o bjectively unreasonable. F o r the same reasons, we conclude that the state court was not objectively unreasonable in holding that J ade’s statements to Deputy L awson fell within W hite ’s requirements.

J ade’s statements to B arry M o o r e , h o w e v e r, d o not fall within the ex cited u tterance ex ception a s formulated b y W hite because they were n ot made before J a d e had an opportunity
to reflect. Rather, these statements were made after J ade h ad already been transported to the hospit a l and after she h ad already recounted the events to Rag land-Stone

, E d minster and B ethel. F urthermore, in recounting t h e events to her father, J ade said that she h a d go n e to b ed early despite the fact that she h a d been up u ntil past 3 a.m., and she also failed
to recount that s h e had been drinking p rior to the attack o r that she had soug h t to buy d rug s fro m W oods. W

oods

, 23 P.3d at 1068. Those misrepresentations sug g est that J ade had the opportunity to r eflect o n the c onsequen ce s o f her
statements. F urthermore, u n l i k e i ts finding s about J ade’s
statements to R a g land-Moore, the W ashing ton Supreme Court’s opinion contain s no similar finding s as to the spontaneity of J ade’s statements to B arry Moore. W e therefore conclude that the state c ou rt ’s determination that J ade’s statements to her f

ather were “ex cited utterances” wasW O O D S V

. S I N C L A I R 26

an unreasonable appl i c ation o f W h ite
, clearly e stablished federal law. According ly

, admission o f J ade’s statements to B arry Moore constituted a violation o f W oods’s rig hts under the Confrontation Clause.

V i o l a t i o n of the Confrontation Clause, however, is s u b j e c t t o h armless-error analy sis. Delaware v. Van Arsdall

, 475 U.S. 6 73, 684 (1986). I f t he error did not result in “actual preju d i ce,” W oods is not entitled to habeas relief. Brecht v. Abrahamson

, 507 U.S. 619, 63 7 ( 1 9 9 3). Here, J ade’s statemen ts to her father w ere, for the most part, cumulative of the statements she g ave to Edmin s t er, B ethel and Rag land-Stone. J ade’s prior statements all included the details of the cr i m e a n d identification of W o o ds as the perpetrator. F urtherm o re, J ade’s prior statements were cumulative of the testimony by Venu s , who also identified W o ods a s the attacker. Thus, W oods canno t e s t ablish prejudice as a result of the Confrontation Clause vi o l a t ion, and he is not entitled to habeas relief on this issue.

IX. DUE P ROCESS CLAIM — WITHHOLDING

MATERIAL EVIDENCE

W o ods arg ues t h a t the prosecution withheld material,

ex c u lpatory evide n c e i n violation of B rady v. Maryland

. Specifically

, W oods a

r g ues in two Brady sub-claims 8 that the prosecution withheld e v idence c oncerning : (1) W SPCL ’s
g eneral policy of destroy ing “draft” reports, as evidenced by Dr. J ohn B r own’s conduct in State v. Barfield

, No. 48147-9-I
, 2003 W L 22121058 (W a sh. Ct. A pp. Sept. 15, 2003), and (2)

8 T h e fi r s t s u b -c laim is set ou t in claim 5.1 in W o o d s’ s f ed eral h ab eas p etitio n

. T h e seco n d su

b

- claim is set o u

t i n claim 5 .2 in W o o ds’ s f ed eral h ab eas p etitio n

.W O O D S V

. S I N C L A I R 27

the full details of h o w the W SPCL mishandled the phy sical evidence in his case, including spillag e of W oods’s first blood sample. On the first B r a d y sub-claim, the district court denied W oods’s r equest for an evidentiary hearing and denied habeas r elief. The district court ruled that the second subclaim w as procedurally defaulted

. W e address each subclaim in turn.

A. The State’s f

ailure to disclose WSP CL’s general practices

W o ods arg ues that the prosecutio n h ad knowledg e o f W SPCL ’s DNA testing a

nd review protocol, which included discarding “draft” reports, and was therefore required under Brady to disclose the lab’s review p rocess. W oods bases this contention on Dr. B r own’s conduct d etailed in S tate v

. Barfield

, 2 003 W L 22121058. 9 I n Barfield

, Dr. B r own tested the DNA from a semen sample retrieve d f r o m a rape victim and compared the r esults to a W SPCL database that included defendant B arfield’s DNA. Id

. at *1. He d i d not identify a match, and created a draft r eport reflecting t h a t result. Id

. B rown’s supervisor, Donald MacL ar e n, independently analy z ed the test results a n d

, a fter reviewing B rown’s draft report, noticed that B rown had made an erro r

. Id. After MacL aren broug ht the error to his attention, B rown discarded the erroneous draft report and prepa r e d a new report reflecting the correct analy sis, which indicated the DNA from th e semen sample matched B arfield’s DNA profile in the W SPCL database. Id. I n a pr e t r i a l i nterview with defense counsel, B rown i n i tially denied ex cluding B arfield in an earlier report, but later admitted that he had p e r fo rmed the

9 Dr. B ro w

n an a l y z e d D N A i n t

h e Ba r field case in 1 9 9 7
, b u t af ter h e

an aly zed th e DNA ev i d en ce an d testif i ed in W o o d s’ s case.W O O D S V

. S I N C L A I R 28

first round of analy sis incorrectly and had discarded the initial erroneous draft report. Id

. D r. B rown testified at B a rfield’s rape trial that he had lied to defense counsel because he was embarrassed about making an obvious error. Id

. at *2.

I n a d e claration submitt e d to the W ashing ton Supreme Court in W oods’s PRP p r o ceeding

, MacL aren, who also reviewed Dr. B rown’s analy sis in W oods’s case, sta t e d t hat the review process followed in B a r f ield —including peer review a nd d iscarding e rroneous draft reports—was standard procedure at W SPCL

. MacL aren decla r e d

, however, that “out of the thousands of autorads this lab has developed there have b e e n less than ten instances where a resiz ing was necessitated by

the review process.”

W o ods arg ues that had he known about W SPCL ’s practices at the time of trial, h e wo u l d have used the information to impeach D r. B r own and to chall e ng e the prosecution’s DNA evidence by questioni n g the quality o f W SPCL ’s internal review process. W oods contends that Dr. B rown’s misconduc t i n the Barfield case revealed a long standing p ractice of h iding the re sults of ex culpatory
tests and that there were indicia in this case that draft reports may have been d estroy ed. Specifically

, W oods points o ut t h a t W SPCL assured the prosecution that testing would be completed by J anuary 1, 1997, but it was not completed until F ebruary 20, 1997. W oods arg ues that it is re a s o nable 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 e x culpatory

, or because it is impeaching ; [ 2] that evidence [ was] suppressed by the State, either willfully o rW O O D S V

. S I N C L A I R 29

inadvertently ; and [ 3] prejudice

. . . ensued.” Strickler v

. Greene
, 527 U.S. 263, 2 81–82 ( 1999); see Brady

, 373 U.S. at 87. To establish p rejudice, a d efendant must demonstrate that “there is a reasonable p robability that the result o f the trial would have been different if the suppressed [ evidence ] h ad been d isclosed to the d e f en s e

. ” Strickler

, 527 U.S. at 289 (internal quotation m a rks omitted). “ A ‘reasonable probabil i t y ’ is a p robability sufficient to undermine confidence in the o u tcome.” U nited States v. Bagley

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

The d uty imposed by Brady ex tends to e v i d e nce in the
g overnment’s possessi o n n ot known to the prosecutor, but applies only

to “favorable evidence rising to a material level of importance.” Kyles v. W hitley

, 514 U.S. 419, 438 (1995). Moreover, the prosecutor’s d uty to disclos e u n d er Brady is limited to e vidence a reasonable prosecut o r would perceive
at the time as being material and favorable to the defense. Id. at 436–37.

The state supreme court concluded that W SPCL ’s g eneral practice of peer review and destruct i o n of erroneous draft reports was not e x culpatory material in W o o d s ’ s c ase, a nd that the prosecution did not have a duty to disclose the lab’s
g eneral practices and procedures. T h i s conclusion was not contrary to nor an unreasonable a pplication of Brady under 28 U.S.C. § 2254(d)(1). The b are fact that the lab subjected DNA test result s to peer review and discarded draft reports when p eer review turned up an error d oes not ten d t o s h o w that an e rror occurred in W o o d s ’ s c a se. W e recog niz e that destruction o f a draft report that e x cluded a d e fe n d a n t as a match with a suspect’s D N A would likely violate Brady in lig ht of the report’s imp ea c h ment value. Althoug h W SPCL
may have followed such a practice in those rare insta n c e sW O O D S V

. S I N C L A I R 30

when its peer review process revealed an erroneous analy sis, there is nothing to sug g est that the state s u p p re s sed an

erroneous draft report in W oods’s c ase. Mo r e over, Dr. B r o w n ’ s misconduct in Barfield occurred months a fter W o ods’s trial concluded, s o t h e prosecution did not possess any information a

bout B rown’s actions in Barfield that could have impeached him at W oods’s trial.

Even if evidence of WSPCL ’s g eneral practices were not

ex c u lpatory

, W o o ds arg ues that it would be reasonable to infer f r o m D r. B rown’s conduct in Barfield and the delay in obtaining DNA test results in his case that W SPCL conducted
tests in his case that were never r eported to the defense. W o ods contends the state s u preme court wrong fully denied him an evidentiary h earing to develop this claim. W e construe his a

rg ument as a c laim that the state court’s factfinding process was flawed and was therefore a n unreasonable determination of the facts under 28 U .S.C. § 2254(d)(2). A state court’s fact-finding pro c es s is unreasonable under § 2254(d)(2) o n ly when we are “satisfied that any appellate court to w hom the d e f e c t is pointed out

wo u l d b e unreasonable in holding that the state court’s factfinding process was adequate.” T a y l o r v. Maddox

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

Here, there was n o defect in the state sup r em e court’s factfinding process. A lthoug h it mig ht h ave been p rudent to provide W o ods with the opportuni t y t o develop the facts

u n d e rly ing this aspect of his Brady claim, the state cour t ’s decision to d eny him a hearing was based on its consideration of the declarations of Dr. B r own and MacClaren that were filed with the W ashing ton Supreme Court. Althoug h neither declaration ex pressly denied the ex istence of an erroneous draft r e p o r t in W o ods’s case, there is nothing in thoseW O O D S V

. S I N C L A I R 31

declarations o r any

where else in the r ecord to sug g est that such a report ex isted. I t was not u n r e a s o n able f or the W a shing ton Supreme Court to deny W o ods’s re q u e s t for a hearing w hen all he c o u ld o f fer was speculation that an evidentiary h e aring mig ht p roduce testimony or other evidence inconsistent with Dr. B r own and MacClaren’s declarations.

W e further conclude that the W ashing ton Supreme Court did not make an unreasonable determination of the facts under § 2254(d)(2) when it found that there was no showing Dr. B rown destroy ed evidence in this c a s e. The only evidence before the state court was that MacClaren reviewed Dr. B rown’s test results a nd ag reed with them. W e ag r ee with the W ashing ton Supreme Court that “the record does not show that Dr. B rown intenti o n a l ly destroy ed ex culpatory evidence and then lied a

bout it.” In re W

oods

, 1 1 4 P

. 3 d at 622.

B e cause the state supreme c ourt’s ruling was ne i t her 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. 1 0

10 Wo od s also req u ested an ev id en tiary h earin g in th e d i s t r i c t co u rt to d ev elo p h i s claim

. B ecau se o u r rev iew o f a claim ad

j u d icated o n th e

m e r i ts b y th e state co u rt u n d er 2 8 U.S.C. § 2 2 54 (d )(1 ) is lim ited to th e

reco rd b ef

ore th e state co u rt u n d er Pin h olster

, 1 3 1 S. Ct. at 1 3 9 8
, w e see

n o n eed t o af

f ord W o o d s an o p p ortu n ity to d ev elo p ev id en ce in su pp o rt of h is arg u m en t th at th e state su

p rem e co u rt u n reaso n ab ly ap p lied Bra d y

. T o th e ex ten t th at W o o d s attack s t h e state co u rt’ s f actf in d in g , w e h av e h eld th at w h ere th ere is n o d ef

ect in th e state co u rt’ s f

actf in d i n g p r o cess, as h ere, “ t h e state co u rt’ s f

i n d in g s are d ressed in a p resu m p tio n of

co rrectn ess, w

h i ch th en h elp s steel th em ag ain st an y ch allen g e b ased on

. . . ev i d en ce p resen ted f

o r th e f irst tim e in f

ed eral co u rt.” S

ee Ta ylo r , 3 6 6W O O D S V

. S I N C L A I R 32

B. F ailure to disclose details of the spillage of

Woods’s f irst blood sam ple

W o ods a lleg es that the State failed to disclose th e f u l l d e tails of the spillag e of his f irst blood sample at W SPC L ’s laboratory in Spokane. W oods c laims that this evidence would have shown that there w as a sig nificant risk that the
rape k it swab taken from J ade Moore was contaminated when W o ods’s blood sample leaked, thus leading to a false positive D NA match. The district court f ound that W oods d id n o t fairly present this sub-claim to the W ashing ton Supreme Cour t a n d ruled that the sub-claim was procedurally barred. W e ag r ee. 1 1

F.3 d at 1 0 0 0

. W o o d s alleg es n o f acts to su p p o rt h is claim b ey o n d th e

su sp icio n th at th e p ro secu tio n ’ s d elay in o b tain in g an d rep ortin g D NA test

resu lts in d i cates t h e d estru ctio n an d n o n

- disclo su re o f ex cu lp ato ry

ev id en ce. “ B are alleg atio n [s],” “ sp ecu latio n ,” an d “ w ish f u l su g g estio n s ” d o n ot en title a p etitio n er to an ev id en tiary h earin g

. Mo rris v. Ca l ifo rn ia
, 9 6 6 F.2 d 4 48
, 4 5 5

– 5 6 (9 th Cir. 1 9 91 ). We th ere fo r e af f i rm th e d istrict

co u rt’ s d en ial o f

an ev id en tiary

h earin g

.

11 Wo o d s an d t

h e S t a t e d isag ree as to w h eth er th e COA in clu d es th e earlier p ro ced u ral ru lin g s related to each claim o r, rath er, is lim ited o n ly
to th e claim s as co n sid ered b y th e co u rt in its f in al o rd er. W o od s a r g u e s th at th e d istrict co u rt’ s g ran t o f a COA relates n o t o n ly to th e m erits o f th e claim s b u t also to th e p ro ced u ral ru lin g s asso ciated w ith each claim

. T h e State, o n th e o th er h an d, arg u es th at t h e COA d oes n o t co v er th e p ro ced u ral ru lin g s an d t

h eref o re d o e s n ot allo w u s to rev iew w h eth er W o o d s’ s seco n d Bra d

y su b

- claim w as p ro p erly ex h au sted

. In h is Mem o ran d u m in S u

p p o rt o f Mo tio n f

o r Certif icate o f A p p ealab ility f

iled

w ith th e d i strict co u rt, W o o d s ex p ressly req u ested th at th e COA in clu d e th e d istr i c t co u rt’ s p ro ced u ral ru lin g s. S ee W o o d s v. S in cla ir
, No

. CV- 05

- 0 3 1 9- L RS (E.D. W ash

. Dec. 2 9
, 2 0 0 8 )

. In lig h t o f th ese circu m s tan ces an d th e m in im al sh o w in g t h at is req u ired f

o r a COA to issu e, see L o

pez v. S ch riro
, 4 9 1 F.3 d 1 0 2 9
, 1 03 9 (9 th Cir. 2 0 0 7 ) (statin g th at ap p ellan t n eed o n ly sh o w t h at reaso n ab le j u ris t s w o u l d f in d th eW O O D S V

. S I N C L A I R 33

State prisoners seeking a wri t o f habeas corpus from a federal court must first ex haust their remedies in state court. 28 U.S.C. § 2254(b)(1)(A). A petitioner has ex hausted his federal c laims when he has fully and fairly presented them to the state courts. O’Sullivan v

. Boerckel

, 526 U.S. 8 38, 8 4 4–45 (1999) (“Section 2254(c) requires only that state prisoners g ive state courts a fair opportunity t o a c t on their claims.”). “[ F ] o r p u r

poses of ex hausting state remedies, a claim for relief in habeas corpus must include reference to a specific federal constitutional g uarantee, as well a s a statement o f the facts that e ntitle the petitioner to relief.” Gray v. Netherland

, 5 18 U.S. 15 2
, 1 6 2

– 63 ( 1996); see also Davis v. Silva

, 511 F .3d 1005, 1 009 (9th Cir. 2008). A claim that has n o t been fairly presented may also be deemed technic ally e x hausted if the petitioner has defaulted on the claim in state court and no long er has a remedy in that court. Coleman v. Thompson

, 501 U.S. 722, 732 (1991). Althoug h, due to the state court default, a f edera l c o u r t may be procedurally b arred from reviewing such a claim. Id. at 750.

Here, W oods presented the state supreme court with both the operative f

acts and leg al theory o f his sub-claim that the State withheld eviden ce o f W SPCL ’s g eneral testing a nd review p rotocols, b u t he did not present facts relating to the breakag e of t h e vial c ontaining his first blood sample at the Spokane lab. W oods ar g u es that, a lthoug h his PRP never

ex p ress l y r a i sed a claim about the spillag e of his blood sample and the potential for contamination of other evidence,

d istrict c o u rt’ s assessm en t of th e co n stitu t io n al claim s d eb atab le or

w ro n g ), w e ag ree w ith W oo d s th at t h e COA sh o u ld b e co n stru ed to

en co m p ass related pro ced u ral ru lin g s. T h eref o re, w e co n clu d e t ha t t h e COA in clu d es th e q u estio n o f w h eth er W o o d s ex h au sted h is s eco n d Bra d y

su b

- claim , an d w e p ro ceed to co n sid er it.W O O D S V

. S I N C L A I R 34

h i s state court Brady c laim alleg ing the non-disclosure o f W SPCL ’s practice of discarding e rroneous draft reports was sufficient to raise the issue of the prosecu t i on’s failure to disclose the mishandling o f all the evidence related to DNA testing

. I n his amended PRP, W o ods unequivocally sta t e d that hi s Brady claim related to h ow W SPCL ’ s g eneral practices related t o his case. W oods noted in his PRP that “couns el moved to take depositions of Dr. B rown, W illiam Morig

, and Donald MacL aren, a ll o f the W ashing t o n State P a trol Crime L ab, to determine the specific p ractices in t h i s

case .” (emphasis added). W oods sug g ests this lang uag e was sufficient to put the state supreme court on notice o f the

secon d Brady sub-claim he raised in his federal h abeas petition.

No w here in the PRP’s Brady section, however, does W o ods mention the spillag e of the first blood sample. A side from h is request to depose Morig

, W oods’s only reference in the PRP to the forensic work at W SPCL ’s Spokane facility stated that Morig received the r ape kit swabs, p r e p a r ed samples f

rom the sw abs, and sent the samples to other laboratories to be tested. T h e B r a d y claim presented in the PRP focuses entirely on the a ctions of Dr. B r own, b o th in the B arfield c ase and in Woods’s case. Yet Dr. B r o w n h a d nothing to d o w ith the storag e, spillag e, and breakag e of the vial c ontaining W oods ’s first blood sample. I n fact, Woods does n o t alleg e that Dr. B rown even knew that a spillag e occurred. As discussed above, Dr. B rown’s cond u ct in the Barfield case does not create a presumption that W SPCL
, a s

an org aniz a tion, sy stematically suppressed ex culpatory
mat e r i a l. W e thus fail to see h ow the B rady claim in W o ods’s PRP, which spoke only to Dr. B rown’s procedures f o r testing and analy sis in the Seattle lab, g a ve the state supreme court a full and f air o pportunity to act on anW O O D S V

. S I N C L A I R 35

alleg ation that t h e p r osecution w ithheld evidence related to the spill a ge o f a blood sample at W SPCL ’s Spokane laboratory

. According ly

, w e c onclude that W oods failed to p r e sent the facts underly ing his second Brady sub-clai m t o t h e W ashing ton Supreme Court, and we affirm the distr i ct court’s ruling that th e s u b-claim reg arding the spillag e o f W oods’s blood sample is technically ex h austed b u t procedurally

barred.

W o ods contends that the d istrict c ourt nonetheless should have en t e rtained his sub-claim because he established cause for t h e procedural default and p rejudice resulting f rom his failure to ex haust state remedies. See B a nks v. Dretke

, 540 U .S. 668, 690–91 (2004) (holding that pe t itioner would be enti t l e d to an evidentiary h earing in federal c ourt if he could show cause for his failu re to develop the facts in
state-court p roceeding s and actual prejudice res u l t ing from that failure). F or a B rady claim, cause and prejudice “‘parallel two of the three c o mponents of t h e a l l eg ed Brady

v i o l ation itself.’” Id

. at 691 (quoting S trickler

, 527 U.S. a t 282). A p etitioner 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

s u p p r e ssed e vidence is material for Brady purposes. Id

. Here, W oods arg ues that he failed to develop the facts of this sub-claim b ecause the State n ever disclosed the full details o f the spillag e of his first b lood sample. W e ag ree with the district court that this is insufficient to show t h at t he prosecution’s alleg ed suppression of evidence c aused W o ods’s failure to develop his sub-claim in state court.

Notably

, the prosecution disclosed before trial that the vial containing W oods’s first b lood sample had cracked andW O O D S V

. S I N C L A I R 36

leaked at the Spokane lab. That disclosu r e p u t W oods on notice that other evidence may have b e en contaminated. W o ods does not a lleg e what further ex culpatory f a c ts the prosecution possessed but failed to disclose. Mor e o v e r, althoug h W oods soug ht authoriz ation from the W ashing ton Supreme Court to conduct certain d i s covery , neither his discovery requests nor his request for an evidentiary hearing specifically

related to the spillag e of the blood sample or the possible c ontamination of ot h e r evidence. His failure to develop the factual basis of h is claim, therefore, cannot properly be att r i b u t able to the prosecution’s failure to disclose r elevant evidence. W e thus a ffirm the d istrict court’s dismissal of this sub-claim as procedurally defaulted. 1 2

12 W oo d s also seek s an ev id e n t i a r y h earin g o n th e m erits o f th is subclaim an d on th e issu e o f cau se an d p rej u d i c e as an ex cu se f o r h is
p ro ced u ral d ef

au lt. Un d er th e A EDP A , 2 8 U.S.C. § 2 2 5 4 (e)(2 ):

[i]f th e ap p lican t h as f

ailed to dev elo p th e f

actu al b asis

o f a claim i n State co u rt p ro ceed i n g s, th e co u rt sh all n o t h o ld an ev id en tiary h earin g o n th e claim u n less th e ap plican t sh o w s th at-

(A ) th e claim

relies o n

-
(i) a n ew ru le o f co n stitu tio n al law

, m ad e retro activ e t o cases on co llateral rev iew b y th e S u p r e m e C o u r t , t h a t wa s p r e v i o u s l y

u n av ailab le; o r

(ii) a f actu al p red icate th at co u ld n o t h av e b e en p rev io u sly d isco v ered th ro u g h th e

ex ercise o f

d u e d ilig en ce; an d

(B ) th e f

acts u n derly in g th e clai m w o u l d b e

su f f icien t to estab lish b y clear an d co n v in cin g

ev id en ce th at b u t f

o r co n stitu

tio n al erro r, n oW O O D S V

. S I N C L A I R 37

X. INEF F ECTIVE ASSISTANCE OF COUNSEL

W o ods arg ues that h e was denied his Six th A mendment rig ht to effective assistance of counsel on the basis o f a number o f deficiencies i n h i s defense team’s performance. The district court conclu d e d that seven of these I AC subclaims had been properly ex hausted before the state co u rts and therefore considered them o n the merits: (1) counsel’s heavy workload; (2) counsel’s lack of ex perience a nd training ; ( 3 ) c ounsel’s failure to properly impeach witness J o h n ny Knig h t; (4) counsel’s f ailure to investig ate a

nd present W oods’s diminished capacity defense; (5) counsel’s failure to investig ate and present W oods’s voluntary intox ication defense; (6) counsel’s failure to ensure that the DNA autoradiog rams went int o the jury deliberation room; and (7) c ounsel’s failure to object to the use of W oods’s alias, “Michael A. Smith,” duringthe trial.

The district court also concluded that a number of the I AC sub-claims were procedurally barred, including : (1) counsel’s failure to address Venus’s recovered memories; (2) counsel’s failure to adequately cross-ex amine V enus on h er prior false

reaso n ab le f

actf in d er w o u ld h a v e f

o u n d th e ap plican t g u ilty o f th e u n d erly in g o f f en se.W o o d s

can n o t m eet th i s h ig h stan dard

. W o o d s f ails to alleg e w h at f acts relev an t to h is Bra d

y claim o r to th e issu e o f cau se an d p rej u dice w i ll b e u n co v ered b y an ev id en tiary h earin g asid e f ro m th e su sp icio n th at th e p ro secu tio n m ig h t h av e b een h id in g i n f o rm atio n relatin g to DNA co n t am in atio n

. W e ag ree w ith t

h e d istrict co u rt th at th ese sp ecu lativ e alleg atio n s d o n o t m eet th e req u ired sh o w in g u n der § 2 2 5 4(e)(2 ), an d w e af f irm th e d istrict co u rt’ s d en i al o f an ev id en tiary

h earin g

.W O O D S V

. S I N C L A I R 38

alleg ation that W oods had raped her; (3) counsel’s failure to call a DNA ex pert to contest the D N A e v idence; a nd (4) counsel’s failure to investig ate a dequat e l y the potential DNA contamination caused by the broken vial of W o ods’s blood.

B o th p arties ag ree that the Supreme C o u r t ’ s decision in Strickland v

. W

ashington

, 466 U.S. 668 (1984), con s t i t utes “clearly established federal la w ” p roviding the proper framework for assessing Woods’s I AC cl a i m s

. U nder the AEDPA, the primary is s u e is whether the state court adjudication of the S

trickland claims was ob jectively reasonable. Schriro v

. Landrigan

, 550 U.S. 4 65, 473 (2007). To prevail on an I AC claim u nder S t rickland

, a p etitioner
must show (1) “that counsel’s performance was deficient,” and (2) “that the deficien t performance prejudiced the defense.” Strickland

, 466 U.S. at 6 87. I n evaluating I AC claims, “our c ases require that

. . . [ we] use a ‘ doubly deferential’ standard of review that g ives both the state court and the defense attorney the benefit of th e d o u bt.” Burt v

. Titlow

, 134 S. Ct. 10, 13 (2013) (quo t i n g Pinholster

, 1 31 S. Ct. at 1403).

As to the first prong , a p etitioner must prove that counsel’s performance was so deficient that it “fell below an objective standard of r easonableness.” Strickland

, 466 U.S.
at 688. The Supreme Court has instructed lowe r c o u r t s to “indulg e a strong presumption t h a t c ounsel’s conduct f alls within the w i de rang e of r easonable professional assistance

. . . .” Id. a t 6 8 9

. A s t o the second p r ong , petitioner “must show that there is a reasonable probability that, b u t f o r counsel’s unprofessional errors, the r esult of the proceeding s would h ave been different

. ” Id. at 694. F inally

, even if W o ods can satisfy both of those prong s, the AEDPA requiresW O O D S V

. S I N C L A I R 39

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

are objectively u nreasonable b efor e g r anting habeas relief. See Landrigan , 550 U.S. at 473.

W e f irst revi e w those claims that the district court addressed o n the merits

, and then consider those the district
court concluded were technically ex hausted but procedurally barred.

A. Counsel’s inexperience and caseload

W o ods arg ues that, because his t wo primary defense attorney s fa c e d u n m an a ge a b l e c a s e l o a d s and were inex perienced in capital litig ation, their p e r f o rmance was deficient. The district court r e jected that arg ument, and so do

we.

W o ods points o ut several troubling a s pects of his counsel’s ex perience and c aseload. F or ex ample, n either o f W o ods’s attorney s had e ver tried a capital case before. One of W oods’s attorney s was the lead attorney on f our other

mu r d e r cases during the time he was representing W oods, while the o ther was responsible f or t h r e e other ag g ravated murder cases. I n fact, just weeks b efore trial, W o ods’s d e fense attorney requested an ex tended c ontinuance

, ex p l a ining that he had never prepared for a case of this
mag nitude before and that he did not feel c omfortable beg inning the trial. T he court denied this request. D e spite these alleg ed deficiencies, these circumstances do not, in a nd of themselves, amount to a S trickland violation. R a t h e r, W o ods must point to specific acts or omissions that may have

res u l t ed from counsel’s inex perience and other professional

o b lig ations. See Strickland

, 466 U.S. at 690. Thus, W oods is not entitled to relief on this sub-claim alone.W O O D S V

. S I N C L A I R 40

B. Dim inished capacity def ense

W o ods c laims that his attorney s should have investig ated and pursued a diminished c a p ac i ty defense. The state supreme court concluded:

[ I ] t was reason able for [ Woods’s] counsel to p u r s u e t he a libi d e f e n s e r a t h e r t h a n d i m i n i s h e d c a p a c i t y b e c a u s e W o o d s continuously denied his involvem e n t in the crimes. To p ursue th e diminished capacity defense wo u l d have required W oods to essentially a d mit that he committed the murders, a position entirely inconsistent with his content i o n that he did not commit the murders.

In re W o ods , 114 P.3d at 618.

T h e district c ourt ag reed, a d ding that W oods’s staunch insistence on his innocence made it reasonable for counsel to “cho[ o ] se t o pursue a defense of alibi and mistaken identification rather than a defense of diminished capacity

, the latter of whic h h ad a hig h probability of failure.” Order D e ny ing Petition, Supplement, and Revised Petition for a W r it of Habe a s Corpus at 4 4, W oods v. Sinclair

, No. 2:05-cv-00319-L RS (E.D. W ash. F eb. 5, 2009), ECF No. 185 [ h e r einafter D ist. Ct. Order]

. The W ashing ton Supreme Court and the district court also ag r eed that, even if counsel’s performance had b e e n d e ficient, the f ailure to present a diminished c apacity defense was h armless in lig h t of the strong evidence of Woods’s premeditation. S e e Dist. Ct. Or d e r , supra at 44–45; In re W oods

, 114 P.3d a t 618–19. W oods arg ues that the state court’s determination on t h i sW O O D S V

. S I N C L A I R 41

issue was objectively u nreasonable and that he is e ntitled to

a n ex pansion of the record a nd an evidentiary hearing

. W e need not address whether W oods’s c ounsel’s performance

was deficient because w e c o nclude he cannot demonstrate prejudice and is therefore not e ntitled to habeas relief on this sub-claim.

To be entitled to habeas relief, W oods must demonstrate that the W a shing ton Supreme Court u nreasonably concluded that counsel’s performance did n ot pre j u d i c e him. The W a shing ton Supreme Court held that, “[ e] ven if W oods’
attorne y s failed to investig ate the d iminished capacity defense, it is harmless e rror because there is strong evidence of premeditation by W oods.” W oods

, 1 14 P.3d at 618–19. Under the second pr ong of Strickland

, to demonstrate prejudice, W o ods must show that it i s r e a sonably probable that the outcome o f his trial would have been different h ad counsel conducted a reasonable investig ation into his diminished capacity defense. 466 U.S. at 694. “A reasonable probability does not mean that w e must d e t e r m i ne that the jury more likely than not would have r e t urned a verdict for something beside [ sic] first deg ree murde r , b u t o nly that [ defendant] has shown ‘a probability sufficient to undermine confidence in the outcome.’” Jenning s v. W oodford

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

, 466 U.S. a t 6 94). Thus, W o o d s m u s t demonstrate that it was

o bjectively unreasonable for the state court to conclude th at hi s counsel’s deficient performance did not affect, o r otherwise undermine confidence in, the outcome o f his trial.

E v en a s s u m i n g t h a t W o o d s ’ s c o u n s e l we r e constitutionally deficient in their performance, the state court’s determination that this deficiency was not prejudicial

was objectively reasonable. According to W oods, his counselW O O D S V

. S I N C L A I R 42

should have conducted further investig ation into a diminis h ed capacity defense. Yet, a s the state supreme c ourt noted, even if c ounsel had unearthed sig nificant evidence o f W o ods’s diminished capacity

, “[ t ] o pursue the diminished capacity defense would have required W oods to essentially admit that he committed the murders, a possibility entirely inconsistent with his contention that he did not commit the murders.” I n

re W oods

, 114 P.3d at 618. W oods failed t o p r esent the W a shing ton Suprem e Court w ith any evidence (or e ven a declaratio n ) that he w ould have been willing to abandon his alibi defense if presented wit h a n alternative d iminished capacity defense. W e t h u s c annot say that the state court’s d e t e r m i n a t i o n o n t h i s s u b

- c l a i m w a s o b j e c t i v e l y unreasonable.

C. Voluntary intoxication def ense

W o ods faults counsel for not adequately investig a ting a nd presenting a v oluntary intox ication defense. Althoug h r elated
to a diminished capacity defense, voluntar y i ntox ication constitutes a separate cog niz able d efense under W ashing ton law. See State v. H

ackett

, 827 P.2d 1 013, 1016 n.3 (W a sh. Ct. App

. 1 9 9 2) (per c u riam) (holding that the voluntary intox ication defense applies to intox ication by drug s as w ell

as alcohol, and that a diminished capacity instruction was not broad enoug h to cover voluntary intox ication falling short o f mental illness or disorder).

Althoug h this ty

pe of alleg ed d eficiency may prejudice a defendant, see Seidel v. Merkle

, 146 F .3d 750, 757 (9 t h C ir. 1998) (finding prejudice where counsel completely failed to investig ate his client’s m e n tal health d espite abundant sig ns in the record that his client suffere d f r o m mental illness); Jennings
, 290 F .3d at 1019 (finding prejudice where counselW O O D S V

. S I N C L A I R 43

failed to investi ga t e and present mental health defenses a nd

n o t i n g that the jury deliberated for two full day s despi t e overwhelming evidence a g a inst the defendant), here we a re not convinced that the s t a t e court’s determination to the contrary was objectively un r ea s o nable. W oods failed to submit any evidence that, had his defense counsel presented him w ith the option to pur s u e t h i s d efense, he would have
ag reed t o i t

. I n fact, the evidence before the state trial court demonstra ted that Woods was insistent upon his innocence and that, in a l l probability

, he would have rejected any defense requiring him to admit g uilt. I n sum, whether or not W o ods’s counsel’s performance wa s constitutionally deficient, t he W ashing ton Supreme Court’s determination that this failure did not prejudice W oods was not objectively unreasonable. W oods is therefore n ot entitled to relief on this sub-claim.

D. Cross-exam ination of w itness Johnny K night

W o ods alleg es that c ounsel did n ot properly crossex a mine J ohnny Knig ht about (1) his p r i or theft conviction and (2) his statements to p olice that increasing ly incriminated W o ods over time. W e address those arg uments in turn.

J o h n ny Knig ht, one o f the State’s key witnesses, falsely denied any prior theft convictio n d u ring direct and crossex a mination. W oods a r g u es that his counsel was constitutionally deficient in failing to impeac h K nig ht’s testimony with a copy of the theft conviction re c o r d

. I n rejecting this arg u ment, the W ashing ton Supreme Court held:

[ T] he failur e to obtain the certified copy o f judg ment and conviction does no t establish deficiency

. W e say that because questioningW O O D S V

. S I N C L A I R 44

from the prosecution and defense established that all par t i e s w ere aware that Knig ht had a t h eft c onviction. I n fact during questioning, Knig ht volunte ered information about other convictio n s as w ell. Thus, it is clear that the jury was aware they w ere l istening to a

w itness with multiple convictions. I n effect

, Knig ht impeached himself.

In re W oods

, 114 P.3d at 619 (internal footnote omitted). This characteriz ation of the record is not quit e a c cu rate. Rather, Knig ht d enied having a theft convictio n a n d

, a fter W oods’s attorney objected, admitted that he had b e e n convicted o f a “ drug transaction.” After a brief colloquy with counsel, the trial judg e stated in open court: “[ Knig h t is] subject to recall o r y ou can just p ut in the evidence about the conviction.” W oods’s counsel then moved on to o ther lines of questioning without asking any further questions about the theft conviction o r introducing any evidence pertaining to it.

W h ether or not the failure to introduce the certified copy of Knig ht’s prior judg ment and conviction was deficient, we

are convinced that the state suprem e c o u rt’s determination that W o ods was not prejudiced by that failure w a s not objectively unreasonable. The jury w as inde e d m ade a ware that Knig ht had been convicted of a crime. W oods arg ues that Kn i g ht’s admission of his d rug conviction is irrelevant becaus e a conviction for a “ d rug transaction” is not comparable to a theft conviction because drug crimes a re not crimes of dishon e s t y u nder W ashing ton law. See State v

. Hardy

, 9 46 P.2d 1175, 1178 (W ash. 1997). W hile we ag r ee that a drug conviction may no t b e a s valuable for i mpeachment purposes a s a theft conviction, we canno t s a y that the counsel’s failure to el i c it Knig ht’s admission to aW O O D S V

. S I N C L A I R 45

theft conviction was sufficiently prejudicial to render the state supreme court’s determination objectively unreasonable.

Nor is W oods entitled to relief o n the basis of his counsel’s failure to c onf

r o n t K n ig ht with evidence that his
statements to police chang ed sign i fi cantly after he was charg ed w ith three f

el o n i e s

. O n April 28, 1996, the police questioned Knig ht a

nd reported: “J ohnny K nig ht denied having knowledg e of the assaults or intention of any assaults that [ W oods] may have been involved in.” On May 7, 1996, Knig ht was re-interviewed by the p olice and a ga i n said nothing about W oods confessing to the assaults.

On F ebruary 13, 1997, however, Knig ht was arrested for drug and firearm crimes for which he could face sig nif icant prison time. A week later, police interviewed Knig ht in jail, and he alleg ed for the first time that on the da y after the murders, W oods confessed that he had kil l ed the women. During this interview, Knig ht also told po l i ce that when he

m e t up with W oods a fter the murders, W oods had women’s jewelry

, cash, and some credit cards whi c h h ad been taken from the victims. Additionally

, Kni g h t claimed that Woods said he needed “to g et out of Spokane.”

B y the time of W oods’s trial, K nig ht had been convicted of several felonies stemming f rom his arrest a nd had been sentenced to 10 y ears in prison. The jury at W oods’s trial did
not learn of Knig ht’s conviction and sentence. W oods arg ues that counsel’s failure to make the jury aware of Knig ht’s
arrest as a possible reason for the chang e in Knig ht ’s story constituted a Strickland

violation.

The Washing ton Supreme Court never ad d r e s s e d this subissue in its d ecision, nor did W oods’s personal restr a i ntW O O D S V

. S I N C L A I R 46

petition raise it. N onetheless, the district court concluded that this claim had b een properly e x haust e d because the new factual alleg ations did not fundamentally alter the leg al claim already considered by the state c o urt. 1 3 The district court thus considered this issue on the merits, as do we. I rrespective o f whether W o ods’s c ounsel w a s d eficient in failing to raise Knig ht’s arrest at trial, that failure did not prejudice W oods. Ample evidence was presented to the jury that Knig h t w as an untrustworthy

witness: he had admitted to a drug conviction and to receiving a reward for information leading to W oods, and defense counsel impeached Knig h t o n the stand for having misrepresented the amoun t h e received as a reward. According ly

, there is not a “reasonable probability tha t

. . . the result of the proceeding would h ave been different” h ad Knig ht b een further impeached with his F ebruary 1997 arrest and r elated co n v ictions. Strickland

, 466 U.S. at 694. Thus, W o ods is not entitled to habeas relief on this claim.

E. Woods’s alias

W o ods contends that his trial counsel’s failure to object
to the use o f W o ods’s alias, “Michael A. Smi t h,” was constitutionally d eficient and p r e judicial. T he W ashing ton Supreme Court, however, determined that the u se of the alias

was p roper under state law as “relevant and material to prove

or disprove an y of the issues in the case.” 114 P.3d at 619 (citing S t a t e v. Elmore

, 985 P.2d 2 89, 310 (W a sh. 1 999); State v. Cartwright

, 456 P.2d 3 40, 342 (W ash. 1969)). Specifically

, the W ashing ton Supreme Court determined that,

1 3 T h e d istrict co u rt den ied W o o ds’ s req u est to in tro d u ce n ew ev id en ce

su p p o rtin g th is claim

. In h is su p p lem en tal b rief

, W o o d s co n ced es t

h at th is

ru lin g w as co rrect in lig h t of th e Su p rem e Co u rt’ s d ecisio n in Pin h o lster

. 1 3 1 S. Ct. at 1 3 9 8

.W O O D S V

. S I N C L A I R 47

b e c a u se the identity o f the perpetrator was at issue, beca u s e W o ods was bo o k ed a t the jail under the name “Michael A

. Smith,” and because two of the f ing erprints that were f

ound
at the crime scene were identified as belong ing to “Michael Smith,” the use of the alias was appropriate to identify Woods

as the perpetrator. Id. That determination of stat e law is binding on this cou r t

. B r a d shaw v. Richey

, 546 U.S. 74, 76 (2005). Thus, even assuming W oods’s attorney was deficient fo r n o t objecting to the use of his alias, we cannot conclude that it was prejudicial; even had d efense counse l m a d e the objection, it would have been properly overruled. W oods is therefore not entitled to habeas relief on this claim.

F . The State’s DNA evidence

W o ods arg ues that his trial c o u nsel f a i l ed to effectively challeng e the State’s DNA evidenc e

. Specifically

, Woods alleg es that his counsel were ineffective in the following three

w a y s : (1 ) they failed to present a defense ex pert to interpret the results of the DNA tests; (2) they fai l e d to ex plore the issue of DNA contamination; and (3) they failed to ensure that the jury could ex a mine the autoradiog rams (“autorads”).

The district court did not reach the merits of c laims (1) and (2) (collectively the “DN A–I AC” claims) because it concluded that these claims had not been pres e n t ed t o the W a shing ton Supreme Court a n d w e re therefore technically

ex h austed, but procedurally defaulted. See W ash. Rev. Code § 1 0 .73.090; see also Coleman

, 501 U.S. at 732, 735 n.1. 1 4

14 A s d iscu ssed ab o v e, th e d i strict co u rt d i d n o t sp ecif y w h eth er th e COA en co m

p assed p r o c ed u ral i ssu es related to W o o d s’ s IA C claim or

o n ly t h o se p arts o f t h e c l aim th at th e d istrict co u rt determ in ed w ere

ex h au sted an d

, th eref

o re, co n sid ered o n th e m erits in its f in al j u d g m en t.W O O D S V

. S I N C L A I R 48

W ith respect to i s s u e (3) above, the court held that because the trial court correctly refused to send the autor ad s t o the deliberation room for consideration, W oods could not prevail

on his I AC claim related to the a u torads. W e consider first W o ods’s DNA–I AC claims and then ad d r e s s the merits o f W o ods’s autorad claim.

1 . DNA–IAC Claim s

T he State arg ues that the factual and leg al alleg ati o n s underly ing W o ods’s DNA–I AC c laims w ere never presented
to t h e state supreme court, the state court never ruled on the claim s , a nd the claims are now procedurally defaulted. W o ods initially arg ued that he f airly p resented these c laims in state court a

nd therefor e t he district c ourt erred in concluding that these w ere procedurally de f aulted. I n his supplemental briefing

, post-rema n d

, W oods now concludes that these claims w ere procedurally d e f aulted. I n o u r p r i o r opinion, we did not resolve this issue. I nstead, we concluded that even if these claims had been properly ex hausted, Woods could not show that he was entitled to habeas relief. We n ow conclude that the claims were n ot fairly presented in the state court. I t is undisputed t h a t the first specific reference to defense counsel’s failure t o e x plore the possibility of DNA

c o n tamination and present the testimony of a defense DNA

ex p ert was in W oods’s federal habeas petition. W e therefore
ag ree with the parties and the district c ourt that these c laims were procedurally

defaulted.

A s n o ted in f

oo tn o te 1 1
, w e co n stru e th e COA to en co m p ass b o th th e sp ecif ic en u m erated claim s an d an y related p ro ced u ral issu es. T h eref o re,

w e co n sid er w

h eth er th e DNA

– IA C claim s w ere p ro p e r l y e x h au sted in
state co u rt.W O O D S V

. S I N C L A I R 49

W o ods arg ues, nonetheless, that even if these claims are procedurally d efaulted, the d efault should be ex c used because it w a s due to ineffective repre sentation by his state postconviction counsel. I n Martinez
, the Supreme Court h eld that, in some circumstances, ineffective representation b y post-conviction c ounsel may provide a basis for ex cusing a procedural default. 132 S

. Ct. at 1320. “[ T] o establish ‘cause ’ to o vercome procedural d efault under Martinez
, a petit i o n er must show: (1) the underly ing ineffective assistance o f trial counsel claim is ‘ substantial’; (2) the petitioner was not represented or had ineffective counsel during t h e [ post-conviction relief (“PCR”)] proceeding ; ( 3) the state PCR proceeding was the initial re v i e w proceeding ; a

nd (4) state law required (or forced as a practical matter) the petitioner to bring the c laim in the initial r eview collateral proceeding .” Dickens v. Ryan
, 740 F .3d 1302, 1319 ( 9 t h Cir. 2014) (citing Trevino v. Thaler

, ––– U.S. –––, 1 3 3 S. Ct. 1911, 1918 (2013)).

W e b eg in by addressing the latter two Martin e z requirements. W oods arg ues that these two requirements a re satisfied because W oods’s DNA-I A C claims were not raised

on direct appeal and, a s a pra c t i c a l matter, could not have been raised on direct appeal because they rely on ex tra-record evidence (e.g

. a d eclaration from a DNA ex pert, Dr. D onald E. Riley ) and W ashing ton law does not p ermit consideration of “matters outside the trial record” on direct appeal. State v

. McFarland

, 127 W ash. 2d 3 22, 3 3 5
, 899 P.2d 1251, 1257 (1995). I n the State’s supplemental b rief addre s s i n g the sig nificance of Martinez
, the State essentially a rg u e d that the

ex c e ption recog niz e d in Martinez was limited to cases where
state la w categorically prohibits a d efendant from raising I AC claims on direct appeal, and that Martinez does not a pply where state law only pro hibits a defendant from r ely ing onW O O D S V

. S I N C L A I R 50

ex tra-record evidence to support I AC claims raised on direct appeal. W e reject this a

r g u ment. After the State’s brief was filed, the Supreme Court held in Trevino that, althoug h Tex a s law did not ex pressly require I AC claims to be rai s ed on collateral review, Martin e z s till applied because Tex as law limited claims on direct review to the trial r ecord, thus mak ing 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 W ashing ton rule, by limiting th e e vidence on direct a ppeal to the record,

see McFarland

, 899 P.2d a t 125 7
, poses the same practical barr i e r t o r a ising I AC claims as the Tex as rule at issue in Trevino

. 1 5 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 arg ues that the defaulted I AC claims are meritl e s s and that Woods therefore c annot show PCR counsel p rovided ineffective assistance of counsel by f ailing to rai s e t h e m in the state court. The dissent similarly arg ues t h at W oods’s claims a re meritless and that we should t h e refore reject W o ods’s Martinez arg uments. However, g iven the na t u r e o f the I AC claims, we believe that the substantiality and ineffectiveness issues should be addressed in the f irst instance by the district
court. As J udg e W atford observed in Detrich

, d etermining whether t h e se requirements a r e satisfied g enerally “requires

a hig hly fact- a n d r ecord-intensive analy sis.” 740 F .3d at

15 T h e State also a rg u ed t h at its p o sitio n is su

p p o rted b y th e Eig h th Circu it’ s d ecisio n in Da n sb y v. No rris
, 68 2 F.3 d 7 1 1
, 7 2 9 (8 th Cir. 2 0 1 2 ). D a n s b y h as sin ce b een v acated an d rem an d ed to th e Eig h th Circu it fo r f u rth er co n sid eratio n in lig h t of Trevin o

. S ee Da n sb y v. Ho b b s , 1 3 3 S

. Ct. 2 7 6 7 (2 0 1 3 ).W O O D S V

. S I N C L A I R 51

1 2 6 2 (W atford, J
., concurring ). Here, evaluating t h e substantiality of the new I AC clai m s r equires consideration of the State’s DNA evidence and the r eliability and propriety of the inferences the State’s ex pert drew from it, as well a s the l i kelihood that the DNA e vidence was contaminated. E v en the State acknowledg es that “[ t] he new claims

. . . involve multifaceted alleg a tions of a scientific nature, concerning counsel’s investig ations into the DNA evidence, the State’s handling of the DNA evidence, and an e x pert’s review of the DNA evidence.” Moreover, W oods arg ues that,

on remand, he should be a f forded an evidentiary hearing a nd

an opportunity to ex pand the re cord. W ith an appropriate

s h o wi ng , he may p u rsue such remedies in the district court. See Dickens

, 740 F .3d at 1321; Detrich

, 740 F .3d at 1246–47 (four-judg e plurality opinion). Allowing the district court to consider these issues in the f i rst instance and to potentially conduct an evidentiary hearing w ill g reatly aid this cour t’s review. Detrich

, 740 F .3d at 1262 (W atford, J
., concurring ). W e therefore remand to the district cou r t s o that it may determine in the first instance whether W oods’s DNA-IAC claims are substa n t i a l and whether PCR counsel was ineffective for failing to raise them. Id

. at 1254 (four-judg e plurality opinion); see also Dickens , 740 F .3d at 1320. 1 6

16 W e leav e f

o r th e d istrict co u

rt t o reso lv e w

h eth er an ev i den tiary h earin g sh o u ld b e h eld in co n n ectio n w ith W oo d s’ s Ma rtin ez claim s. T o th e ex ten t t

h at th e S t a t e a r g u es th at Pin ho lster an d § 22 5 4(e)(2 ) categ o rically bar Wo o ds f ro m o b tain in g su ch a h earin g o r f ro m presen tin g

ex tra- reco rd ev id en ce to estab lish cau se an d prej u d ice f o r th e p ro ced u ral d ef au lt, w e rej ect th is a r g u m en t. S ee Dicken s , 7 4 0 F.3 d at 1 3 20

– 22 ; Detrich , 7 40 F.3 d at 1 2 4 7

.W O O D S V

. S I N C L A I R 52

2. The autoradiogram s

W o ods arg ues that his c o u nsel’s failure to ensure that the D N A autorads 1 7 went into the jury room amounted t o a Strickland violation. At trial, the a utorads were used to h elp illustrate Dr

. B rown’s testimony reg arding DNA. In re W oods

, 114 P.3d at 621. The jurors were informed that the autorads were fo r d e m o n strative 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. I d

. Neither the prosecution nor defense counsel objected to this ruling

. Id.

The W ashing ton Supreme C o u r t held that, “when an

ex h ibit is used for illustrative purposes only and the jurors a re instructed that the ex h ibit is not evidence, than [ s i c] the

ex h ibit should not g o to the jury room.” Id. at 622 (cit i n g State v. Lord

, 822 P.2d 177, 194 (W ash. 1991)). Thus, the

c ourt held that the trial court correctly refused to s e n d t h e autorads to the deliberation room for c onsideration. Id. at 428. We a

re bound t o defer to that interpretation o f W a shing ton state law. See Bradshaw

, 546 U.S. at 7 6

. I n lig ht of that ruling

, W o ods cannot show prejudice resulting from his counsel’s failure to object to the t r i a l court’s

ex c lusion of the autorads from th e j u r y deliberation room. Even if defense counsel had o bjected, the o bj e ction would have been properly o verruled u n der W ashing ton law. Woods is therefore not entitled to habeas relief on this claim.

17 A n au to rad io g ram

is “ a p h o to g rap h ic reco rd in g o f th e p ositio n s o n a fi lm w h ere rad io activ e d ecay o f iso to p es h as o ccu rred .” Co m

m i t t e e o n DNA T ech n o l o g y in Fo ren sic Scien ce et al., DNA T ech n o lo g y in Fo ren sic Scien ce 1 6 7 (1 9 9 2 ).W O O D S V

. S I N C L A I R 53

G . Venus Shaver’s testim ony

I n his federal habeas petition, Woods asser t ed that he received ineffective as s i s t a nce of counsel when his trial counsel failed to address Venus Shaver’s “ recovery ” o f h er memory of the attack and failed to cross-ex amine her adequately on her prior false claim that W oods raped her. The district court concluded that because W oods had failed
to fairly p resent these claims to the state court, they were procedurally barred. W e ag re e t h a t these claims were not fairly presented to the state court.

I n h i s opening brief, W oods a dmits that he did n o t specifically address in h i s P RP his counsel’s failure to impeach Venus Shaver e f fectively

. I n fact, W o ods’s W a shing ton Supreme Court PRP makes no mention of either Venus Shaver or her “recovered” memo ri es

. H e a rg u es, however, that because these new arg uments do not f u n d amentally alter his claim that trial c ounsel were ineffective and unprepared to impeach witnesses, he fully a nd fairly presented them to the state court.

Althoug h W oods a lleg e d t h e specific Six th A mendment
g uarantee recog niz ed b y Strickland

, his state court petition did not make a

ny reference to his counsel’s failure to impeach Venus Shaver. The most a nalog ous claim is W o ods’s alleg ation that hi s c ounsel failed to impeach J ohnny Knig ht properly

. That claim simply did not provide a s u f f icient factual basis f

o r t he state supreme court to have a fair opportunity to apply contr o lling leg al principles to the facts relating to the claim. Thus, Woods’s claim relating to Venus Shaver was n ot fairly presented a n d may be procedura lly defaulted.W O O D S V

. S I N C L A I R 54

W o ods contends, however, that he has established cause and prejudice ex cusing his p rocedural default on this issue. I n particular, he contends that his failure to raise this iss u e b e f o re the state supreme court was a result of ineffec t i v e assistance of h is post-c o n v i c tion counsel. W e vacate the district court’s ruling a n d remand this claim to the district
court so that it ma y c onsider in the f irst instance whether W o ods can show cause and prejudice under Martinez.

H. Cum ulative Def

iciencies

W o ods arg ued in his PRP that the cumulative i m p a c t o f his counsel’s deficiencies prejudiced his defense a nd requires reversal of his conviction. W e have previou s l y r e cog niz ed that “prejudice may result f rom the cumulative impact o f multiple deficiencies.” Cooper v. Fitzharris

, 586 F .2d 1325, 1333 ( 9th Cir. 1978). “[ A] lthoug h individual errors may not rise to the level of a c o nstitutiona l v i o l ation, a collection o f

errors mig ht violate a defendant’s cons titutional rig h ts.” Davis
, 384 F .3d a t 654 (citing Harris v. W ood

, 64 F .3d 1432, 1438 (9th Cir. 1995)). Althoug h W oods’s trial counsel mig ht
not have provided a model defense, counsel’s “missteps a nd misjudg ments did not r ender [ W oods] ’s tria l fundamentally unfair.” Id

. W e therefore affirm t h e denial of relief on W o ods’s claim of cumulative deficiency

. 1 8

18 T h i s h o ld in g is su

b j ect t o t h e cav eat th at, sh o u ld t h e d i strict co u rt

u ltim ately co n clu d e th at W o o d s’ s p ro ced u ral d ef au lt o f h is D NA

- IA C an d Ven u s Sh av er- related IA C claim s w as e x c u s ab le an d th at trial co u n sel’ s assistan ce w as i n ef

f ectiv e w ith resp ect t o th ese su b j ects, th e district co u rt

m ay reev alu ate w

h eth er th e cu

m u lativ e im

p act o f co u n sel’ s d ef

icien cies
req u ires rev ersal.W O O D S V

. S I N C L A I R 55

XI. CONCLUSION

F or the foreg oing reasons, we affirm in part and vacate in part the district court ’s denial of W oods’s petition. W e remand f or the district court to consid e r i n the first instance whether W oods can show cause and prejudice under Martinez

.

AF F IRMED in part, V ACATED in part, a nd REMANDED.W O O D S V

. S I N C L A I R 56

TAL L MAN, Circuit J udg e, concurring in part a nd dissenting in part:

The Supreme Court g ave Dway n e W oods an inch

. T he

m ajority g ives him a mile. W hen the Court remanded t h i s

c a s e to the same p anel that affirmed W oods’s sentence in 2011, it g ave W oods the o pportunity to arg ue that h is four procedurally defaulted claims deserved a federal au d i ence. B ut none of these new claims c a s t a n y doubt on W o ods’s

m a n i f est g u ilt for the brutal murders of J ade Moore a n d Telisha Shaver o n April 2 7, 19 9 6

. F ortunately

, the third vict i m of h is senseless violence, V enus Shaver, survived to testify a g ainst him at trial. And even W oods 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 “g o back and return a vo t e t o i m p ose the death penalty .”

Be c a use none of W oods’s new claims would lea d a reasonable juror to conclude that W oods did not murder J ade Moore and Telisha Shaver, or atte m p t t o murder Venus Shaver, no c ourt can provide W oods the relief h e seeks. The majority ’s remand ser v e s only one purpose: unnecessary delay

. I respectfully dissent from Sections X.F

. 1, X.G, a nd footnote 18 of the majority opinion.

I

On remand from the Supreme C o u r t , we must n ow consider w h e t

her W oods’s four procedurally defaulted c laims
meet the narrow requirements of Martinez v. Ryan
, 132 S. Ct. 1309 ( 2012). W oods alleg es that his trial counsel provided ineffective assistance by failing to: (1) call an ex pert witness
to refute V enus Shaver’s claim t h a t she had recoveredW O O D S V

. S I N C L A I R 57

memories of the attacks; ( 2) cross-ex amin e Venus about a false rape alleg ation ag ainst Woods; (3) call a defense ex pert to interpret the resul t s o f the State’s DNA evidence; a nd (4) ex plore the possibility of D NA contamination. W oods
arg ues that the ineffectiveness of h is post-conviction counsel (“PCR counsel”) ex cuses 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.

B u t W oods is entitled to a remand under Martinez o nly if he can show that: (1) PCR counsel was ineffective under S t r i ckland v. W

ashington

, 466 U.S. 668 (1984), for n o t raising a claim of ineffective-assistance-of- t rial-counsel ( “ I AC”), and (2) “the underly ing ineffective-assistance-o f

trial-counsel c laim is a substantial o ne, which is to say that

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

The Supreme Court h as said that to succeed on a Strickland I A C claim, W oods must show not o n l y that his trial c ounsel was deficient but also that t h is deficient performance caused p rejudice. S tric k l and

, 466 U.S. at 694. Even if W oods proves that h is trial c o u n s el was m anifestly ineffective, W o ods cannot prevail unless he shows prejudice—“a reasonable pro b a bility that, but for counsel’s unprofessional errors, the result of the proceeding would have been d i f ferent.” Id. B ecause W oods challeng es o nly his conviction ( and not his death sentence), h e must demonstrate that his new claims would cause at least one reasonable juror
to find him “not g uilty ” of the murders of J ade M o o re a nd Telisha Shaver, o r t h e attempted murder of Venus Shaver. This is simply not possible in the face of the incriminating evidence ag ainst him.W O O D S V

. S I N C L A I R 58

None of W oods’s new claims can refute the streng th o f the inculpat o ry evidence conclusively demonstrating his
g uilt: (1) Sherry Shaver’s identification of W oods as the man she saw fleeing the crime scene on the morning of the murders; (2) J ade Moore’s statements to a treating paramedic,
nurse, and phy sician, b e f ore she succumbed to h er injuries, that “ a man n amed Dway

n e” hit her “with a baseball bat” a nd “sex ually assaulted” her, and J ade’s statements to her father that her attacker was “Dway ne,” “a g uy that Venus had been
g oing o ut with”; (3) ex pert t es t i m ony that W oods’s latent fing erprints w ere found on a bottle and on a telephone in the trailer; (4) the fact that W oods’s coat and shirt were found at t h e c r ime scene; and (5) pag ing and telephone r e cords demonstrating that W oods’s pag er had been called from the trailer a f ew hours before the murders. N or do W oods’s new claims refute the fact that, immediately after the m u r ders, W o ods was seen at two businesses near the crime scene, a nd

was then dropped o ff in downtown Spokane near a number o f ATMs w here J ade Moore’s s t o l en ATM card was used to make withdrawals. F inally

, the n ew claims do n o t challeng e W o ods’s statements to a friend that he was “a wanted man,”

or that W oods led police on a car c hase as they attempted to apprehend him, permitting the jury to infer his consciousness of g uilt.

T h e s t r e n gt h o f t h e ev i d e n c e a ga i n s t W o o d s w a s overwhelming

. As a result, there is no way W oods c an show that, but for counsel’s errors, a r easonable juror w o uld have found tha t W oods did not murder J ade Moore and T e lisha Shaver or attempt to murder Venus Shaver. W hile it may be “standard practice” for us “to remand to the district court for

a decisi o n in the first instance without requiring a ny special justification for so doing ,” we need not do so “where there is l i t t le doubt about the c orrect answer.” Detrich v. R ya n ,W O O D S V

. S I N C L A I R 59

740 F .3d 1237, 1248 (9 t h Cir. 2013) (four-judg e p lurality opinion). The majority does not tell us what the district court should d o o n remand in t he face of this record other than reiterate this obvious conclusion. B ecause W o o ds cannot possibly show prejudice under Strickland

, his new claims a re

n o t “ s u bstantial,” and a remand to the district court is unwarranted even under Mar t i n e z

. 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 ).

I I

Even if I thoug ht it necessary to review the performance of W oods’s trial counsel, I would r each the same conclusion: W o ods is not entitled to a r emand. None of W oods’s newly alleg ed I AC claims demonstrate that W o o d s’s counsel’s perf ormance “fell below an objective standard o f reasonableness.” Strickland

, 466 U.S. at 687–88. Nor would
any of W o ods’s specific claims have b e e n reasonably likely
to chang e the outcome o f his trial. B ecause W o o d s ’ s new claims have no merit, they are not substantial under Martinez

.

A

W o ods first a l l e g es that Venus Shaver “ had complete amnesia of the events o f April 27, 1996.” Dr. D emakas, a neurosurg eon who treated V enus, testified that when he was first e x amining Venus in the emerg e ncy room, she “ d i d n ot recall what happened” and “was amnesic from the accident.” At that time, Venus was sti ll suffering from the immediate side effects of blunt he a d t rauma a n d a larg e skull fracture. W o ods arg ues that, by the time o f trial, Venus had recovered

“ c onsiderable memory of the events,” and he contends t h atW O O D S V

. S I N C L A I R 60

his counsel was ineffective for failing t o call a neuropsy cholog ist who would have t e stified that such
memory recovery is impossible. B u t W oods’s new claim is much ado about nothing

.

W h ile Dr. D emakas did testify that Venus was “amnesic,” he also stated that, while i t would not be “uncommon” for Venus to recover memories, these memories mig ht be out-oforder or influenced by sug g estive stimuli. Thus, throug h Dr. Demakas’s testimony

, the jury heard th a t Venus did not immediately recall the events of that evening

, and that any recovered memories could be suspect. A dditional testimony on this point would have been larg ely cumulative.

Also, Venus’s memory problems were discussed a t leng th during the trial by Venus herself. Venus recalled i n g reat detail bring ing W oods to her hous e , W o o ds g rowing ang ry , W o ods sex ually assaulting her, W oods sla m m ing her head into a d oor, a

nd her repeated attempts to g et W oods to leave. After that, however, h er memory went blank. The “last thing [ she] saw” w as “[ W o ods] coming up to [ he r ]

. ” I n response to counsel’s q

uestion of “what happens then? ” Venus said she “[ didn’t] remember

. . . pr o b a b l y c uz [ sic] I g ot hit.” She repeatedly recog niz ed that her memory of th e r emainder o f the eveningwas practically non-ex istent. B ut the jury could easily fill in the rest of the story from all available evidence, including the recovery f

rom the crime scene of an aluminum baseball b at stained by human bl o o d a n d the larg e skull fracture in Venus’s head consistent with being hit by a blunt instrument.

Althoug h V enus could not recall the events of the rest o f the evening

, ex cept for a few “flashes of memories,” defense counsel e x pressly sug g es t e d to the jury what the source o fW O O D S V

. S I N C L A I R 61

Venus’s recovered memories really were: newspaper articles, television accounts, and family statements. Defense counsel
g ot Venus to admit on cross-ex amination that: (1) she h ad read a leng thy news ar t i c l e a bout the case w h ile in the hospital e ven thoug h she knew she wasn’t supposed to; (2) she had watched television a ccounts of the attac k ; ( 3 ) a television account featured a picture of W oods; ( 4) she spoke with her family a t t he hospital about what happened to her; and (5) Dr. Demakas told her that she would have “flashes o f memories” about the attacks.

W o ods alleg es that h is counsel should h a v e c alled an

e x p e r t t o testify on the issue of recalled memory

. B ut the

ex p ert’s proposed t estimony w ould have been cumulative. Given that counsel had introduced ample evidence of Venus’s
memory problems, counsel’s failure to introduce ex pert testimony on this point w as not deficient under S t r i c k land

. The jury heard all of the impeachment throug h competent

cross-ex amination but obviously believed t h e ey ewitness victim who was present when W o ods commi t ted his atrocious crimes. No r emand is appropriate on this insubstantial c laim. See Sexton v. C o z n e r , 679 F .3d 1150, 1157–58 (9th Cir. 2012).

B

W o ods nex t arg ues that c ounsel should have a g g ressively challeng ed Venus reg arding a statement she alleg edly made accusing W oods of rape. B ut W oods fails to show t hat his counsel’s d ecision not to cross-ex amine Venus was deficient. As the victim of this savag e attack, Venus was an ex tremely
sy mpathetic w itness. A rg uably

, Woods’s c ounsel acted wisely by not pursuing this point on cross-ex aminati o n to avoid further a lienating the jury

. T h i s strateg ic decision, b yW O O D S V

. S I N C L A I R 62

understandably wary defense c ounsel, is essentially insulated from S trickland reversal. Id. at 1 156; S trickland

, 466 U .S. at 689. F or that reason, W oods’s counsel was not deficient.

C

Nex t, W oods challeng es his counsel’s failure to c all an

ex p ert to interpret the results of a DNA test implicating W o ods. At trial, the State’ s D NA e x pert, Dr. J ohn B rown, testified that the male DNA recovered f rom the c r i m e scene matched W oods’s DNA at f o ur of six loci. D r. B rown conclud e d that, at the other two loci, the results were inconclusive, althoug h they did not e x clude W oods as the donor. W oods arg ues that, if called to testify

, Dr. D o na ld Riley would have ex plained that the results at five of the six loci were inconclusive, meaning that W oods’s DNA conclusively matched the DNA recovered at the crime scene at o n ly one locus. B ut even if W oods’s counsel was deficient for failing to rig orously challeng e the DNA evidence with the assistance of a qualified DNA ex pert, W oods would h ave, at best, only neutraliz ed this e vidence, a narrow sliver of the State’s overwhelming case ag ainst him. Even wit h o u t the DNA, a jury

would still find W oods g uilty as charg ed.

D

F inally

, W oods claims that h is counsel was ineffective for failing to arg ue that a blood spill in the crime lab mig ht have led to W oods’s blood sample being comming led with vag inal swabs taken from J a de Moore. At trial, St a te crime lab forensic scientist W illiam Morig ex plained that W o ods’s blood vial spilled in an area o f the lab where hair ex amination took p lace. Morig testified that once the spill was d iscovered, the sample was immed i a t e l y destroy ed. On cross-W O O D S V

. S I N C L A I R 63

ex a mination, W oods’s counsel re-confirmed the spill. Thus,

on two separate occasions, the jur y h e ard that a spill took place in the lab. Trial counsel was not ineffe ct i v e f o r declining to i n t

r o d u c e a d ditional cumulative testimony on this point. B ecause the claim is not “substantial” under Martinez
, there is no need to remand.

I I I

I n support o f their decision to remand, my colleag u es n ote that “[ a] llowing the d istrict c ourt t o consider these issues in the first instance a

nd t o p o tentially conduct an evidentiary hearing will g reatly aid this court’s review.” Opinion a t 51. They c ite to Detrich

, where we chose to r emand the Martinez question to the district court to allow it to decide th e m e rits first. B u t e ven Detrich recog niz e d that if the evidence o f
g uilt was “overwhelming and unassail a b l e ,” then “we could safely conclude that [ the petitioner] h as no r e a l c h ance o f show i n g that his new trial-counsel I AC claims a re ‘substantial.’” Detrich

, 740 F .3d at 1249. Su ch is the case here. B ecause W oods’s g uilt is manifest, we can declare on the current record that his clai m s are not substantial. See Sexton
, 6 7 9 F .3d a t 1 1 58 ( c o ncluding that r emand to the district c ourt w as improper under Martinez because Sex ton’s claim was not “substantial”); Murray v. Schr iro
, 746 F .3d 418, 4 58 (9th Cir. 2014) ( concluding that M urray ’s ineffective-assistance-of-trial-counsel claim lac k e d s u f f i c ient merit to warrant a Martinez remand).

Moreover, Detric h is disting uishable. I n D etrich

, the “central question” was “ whether any of Detrich’s newly presented trial-counsel I A C claims prejudiced him at sentencing .” 740 F .3d at 1249 (empha s i s in orig inal). B ecause Detrich’s jury was split on whether D etrich wasW O O D S V

. S I N C L A I R 64

g uilty of first-deg ree murder or felony murder, the prejudice inquiry hing ed on whether, if evid e n c e that D etrich was the actual killer w as weaker, Detrich would nonethe less have been sentenced to death. Id. This was a close question—“if the trial evidence were close, then it w ould not take too much

n e w ex culpatory evidence to call into question the trial jud ge ’ s sentencing decision.” Id. Here, W oods’s h abeas claims a r e directed only to h is conviction
, not his sentence. (W oods did not present any mitig ating evidence; instead, he invited the jury to impose the death sentence.) T h u s , t he relevant prejudice inquiry is not whether W oods’s new c laims
may have affected the sentence imposed, but whether the new claims cast doubt on W oods’s g uilt. They do not.

The majority also notes that “evaluating the substantiality of the n ew I A C claims requires consideration of the State’s DNA evidence and the reliability and propriety of the inferences the State’s ex pert drew from i t , a s well as the likelihood that the DNA evidence was c ontaminated.” Opinion at 51. B ut the majority focuses o n counsel’s deficient performance and turns a blind e y e 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; L o

p ez , 678 F

. 3 d at 1 139. E ven if Woods convinces us that his trial counsel was g laring ly ineffective, he cannot possibly show that any reasonable juror would have found him not g uilty

.

I V

I n lig h t of the overwhelming evidence ag ainst him, no court can g rant W o ods the relief he seeks. T he majority ig nores this fore go ne conclusion, favoring endless litig ation instead. The only

purpose this remand will serve is to delayW O O D S V

. S I N C L A I R 65

for y ears the seventeen-y

e a r-old judg ment properly obtained
ag ainst a murderer wh o a s ked the jury to impose the death
sentence upon him f

o r 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 W oods’s o ther claims for h abeas relief.