FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL JOE MURDAUGH,

Petitioner-Appellant,

v.

CHARLES L. RYAN,

Respondent-Appellee.

No. 10-99020

D.C. No.

2:09-CV-00831-FJM

OPINION

Appeal from the United States District Court

for the District of Arizona

Frederick J. Martone, District Judge, Presiding

Argued and Submitted

February 13, 2013—San Francisco, California

Filed July 26, 2013

Before: Dorothy W. Nelson, Stephen Reinhardt,

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

Opinion by Judge Nelson
2 MURDAUGH V. RYAN

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

*

been prepared by court staff for the convenience of the reader.

SUMMARY

*

Habeas Corpus/Death Penalty

The panel reversed in part and affirmed in part the district

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

challenging a conviction and capital sentence for murder.

The panel reversed the district court’s denial of relief as

to petitioner Murdaugh’s claim of error under Ring v.

Arizona, 536 U.S. 584 (2002), which requires a jury

determination of the presence or absence of aggravating

factors supporting the death penalty. After acknowledging

that Ring error is subject to the harmless error test, the panel

concluded that the Ring error had a substantial and injurious

effect or influence on the trial court’s failure to find the

mitigating factor regarding Murdaugh’s capacity to

appreciate the wrongfulness of his conduct or conform it to

the requirements of law, and thus on the trial court’s

imposition of a death sentence. The panel explained that, had

the state supreme court considered all of the evidence, it

would have been impossible to conclude that no rational jury

could have found this factor. Having granted relief as to this

claim, the panel reserved judgment on Murdaugh’s claims

about his competence to waive the presentation of mitigating

evidence at sentencing.

The panel otherwise affirmed the district court’s decision.

The panel next held that the state court did not violate

Murdaugh’s constitutional rights by applying an
MURDAUGH V. RYAN 3

unconstitutional causal nexus test to mitigating evidence of

his drug use and delusions. The panel also held that

Murdaugh was not denied his right to conflict-free

representation when the prosecutor presented mitigating

evidence at the behest of the trial court after Murdaugh

declined to present such evidence, because the prosecutor did

not represent Murdaugh. The panel also denied relief as to

Murdaugh’s challenges to his guilty plea.

COUNSEL

Paula K. Harms (argued) and Therese M. Day, Federal Public

Defender’s Office, Phoenix, Arizona, for PetitionerAppellant.

Jeffrey A. Zick (argued), Arizona Attorney General’s Office,

Phoenix, Arizona, for Respondent-Appellee.

OPINION

NELSON, Senior Circuit Judge:

Petitioner Michael Joe Murdaugh appeals the denial of his

federal habeas petition, which challenges his murder

conviction and death sentence. Murdaugh claims that the

district court erred in denying claims brought pursuant to

Ring v. Arizona, 536 U.S. 584 (2002), and Tennard v. Dretke,

542 U.S. 274 (2004), as well as claims raising other errors by

the state court and the ineffective assistance of counsel.

Murdaugh also argues that the district court erred in deeming

various claims procedurally defaulted. We grant relief on
4 MURDAUGH V. RYAN

 These facts are drawn from the Arizona Supreme Court’s summary of 1

the evidence supporting Murdaugh’s convictions, which are “presumed to

be correct,” unless Murdaugh rebuts that presumption by “clear and

convincing evidence.” 28 U.S.C. § 2254(e)(1). Murdaugh does not

challenge any of these facts in his petition.

Murdaugh’s Ring claim and reserve judgment on Murdaugh’s

claims about his competence to waive the presentation of

mitigating evidence. We otherwise affirm the district court.

I. Background

1. The Murders of David Reynolds and Douglas Eggert

On June 26, 1995, Murdaugh’s girlfriend, Rebecca Rohrs,

met David Reynolds at a gas station. She told him she was

1

looking for a job, and they exchanged phone numbers. The

conversation took a sordid turn when Reynolds offered to pay

Rohrs to perform oral sex. Rohrs declined, returned home,

and described the encounter to Murdaugh. Murdaugh

decided “to teach Reynolds a lesson,” and told Rohrs to invite

him over. Murdaugh then left with his friend Jesse Dezarn to

buy methamphetamine, instructing Rohrs to page them as

soon as Reynolds arrived.

When they learned that Reynolds had arrived, Murdaugh

and Dezarn quickly returned to the house, brandishing

firearms. While Murdaugh confronted Reynolds, Rohrs and

her friend Betty Gross looted Reynolds’s plumbing van

outside. Murdaugh eventually came out of the house and

reprimanded them for not wearing gloves and leaving

fingerprints on everything. He exclaimed, “Do you know

what I am going to have to do now?”
MURDAUGH V. RYAN 5

Later that night, Murdaugh took Reynolds to his garage

and ordered him into the trunk of his car. Murdaugh, Dezarn,

Gross, and Rohrs all returned to the garage throughout the

night to use methamphetamine.

In the early hours of the next morning, Murdaugh and

Dezarn decided to abandon Reynolds’s van near a cemetery.

While stopping for gas on the way back to the house, they ran

into an acquaintance, Ron Jesse. They asked Jesse for drugs,

and he returned to the house with them. Dezarn and Jesse

then left the house to buy more methamphetamine. Upon

their return, Murdaugh, Dezarn, and Jesse began using

methamphetamine in the garage. At around 8:30 AM, Gross

and Rohrsjoined them, and the group continued taking drugs.

While they were all in the garage, Murdaugh opened the

trunk of his car to show Jesse that he was holding Reynolds

inside. At this point, Reynolds asked to use the bathroom.

Murdaugh led Reynolds to a corner of the garage to urinate,

and while Reynolds’s back was turned, Murdaugh struck him

on the head with a meat tenderizer. Reynolds fell to the

ground, and Murdaugh picked up a metal jackhammer spike

and continued to hit him in the face and head. Three major

crushing blows to Reynolds’s skull killed him. Murdaugh

then instructed Gross and Rohrs to sprinkle horse manure

over the body and the surrounding blood.

At some point after the murder, Jesse attempted to leave

Murdaugh’s property but could not because the gate was

locked. Murdaugh approached Jesse and threatened him,

saying that if he told anyone what happened, Murdaugh

would “kill [Jesse] last and peel the skin off his children.”
6 MURDAUGH V. RYAN

That evening, Murdaugh and Dezarn loaded Reynolds’s

body into Murdaugh’s horse trailer. Murdaugh told Rohrs to

clean up the blood in the garage and then left to go camping.

At the campsite, Murdaugh dismembered Reynolds’s body in

an effort to prevent identification of the remains. He cut off

Reynolds’s head and hands, sliced offReynolds’sfinger pads,

and pulled out Reynolds’s teeth. As he was driving to a

separate site to bury the body, he threw the teeth and finger

pads from the window of his truck. He then buried the head

and hands in one shallow grave and the torso in another.

Over the next several days, the police began investigating

Reynolds’s disappearance. The police found Reynolds’s van,

obtained copies of Reynolds’s cell phone records, and then

contacted Rohrs. The police also interviewed Jesse, who told

them he had witnessed Reynolds’s murder. The police

obtained a search warrant for Murdaugh’s home and garage

and found the scene exactly as Murdaugh had left it. The

Maricopa County Sheriff’s Office put out an alert notifying

law enforcement agencies that they were looking for

Murdaugh.

Investigators ultimately tracked down Murdaugh after he

checked himself into an emergency room for a knife wound

he sustained while cleaning one of his horses’s hooves. After

waiving his Miranda rights, Murdaugh confessed to the

murder and told the detectives where to find Reynolds’s

body. Because Reynolds’s murder was similar to the

previous murder of a victim named Douglas Eggert, the

police asked Murdaugh if he had ever done anything like this

before. Murdaugh then admitted to killing Eggert by beating

him to death with a meat tenderizer.
MURDAUGH V. RYAN 7

2. Conviction

An Arizona grand jury charged Murdaugh with first

degree murder, kidnapping, aggravated robbery, and

aggravated assault in connection with Reynolds’s death. It

also charged Murdaugh with the first-degree murder and

kidnapping of Eggert. The state appointed Jess Lorona to

represent Murdaugh.

In November 1998, the trial court ordered a competency

screening of Murdaugh. Dr. Jack Potts, a forensic

psychologist, noted that Murdaugh held some fringe beliefs

but expressed a desire to plead guilty to avoid putting his

family and those of the victims through a trial. Dr. Potts

concluded that Murdaugh was aware of the charges against

him and understood both his constitutional rights and the

consequences of pleading guilty.

The court then appointed Drs. Scialli and Sindelar to

assess Murdaugh’s competence. Both found Murdaugh

competent to plead guilty. The parties stipulated that the

court could determine Murdaugh’s competency on the basis

of these reports. The trial court then found Murdaugh

competent.

Around this time, Murdaugh repeatedly requested a skull

x-ray because he believed that a tracking device had been

implanted in his head. The deputy district attorney, Mark

Barry, asked the court to order the skull x-ray. He argued that

the x-ray would reassure Murdaugh that no tracking device

existed and that it would “alleviate any potential coercive

allegations raised at any future plea proceedings.” The trial

court granted the request.
8 MURDAUGH V. RYAN

In May 1999, the trial court ordered a competency

screening to reevaluate Murdaugh. Dr. Potts submitted a

screening evaluation of Murdaugh in September 1999, in

which he described Murdaugh as “continuing to experience

paranoid beliefs and delusions secondary to his past

amphetamine abuse.” Dr. Potts recounted that Murdaugh had

requested a skull x-ray but had received a CT scan instead.

The scan did not show an implant, but Murdaugh believed the

results were doctored and requested an MRI. Dr. Potts

concluded that Murdaugh “is an intelligent man who is

simply expressing a very strong desire based on a clearly

false belief. He is capable of weighing various options.” Dr.

Potts opined that Murdaugh “fully appreciates the necessary

waiver of his rights by entering a plea of guilty,” and “fully

understands the consequences of entering the plea.”

Murdaugh pled guilty to both indictments in January of

2000. The plea agreement provided that the state would not

seek the death penalty for Eggert’s murder, but that the

conviction for that crime could still constitute an aggravating

factor in sentencing Murdaugh for Reynolds’s murder.

3. Sentencing

Over the course of the next year, the defense team

prepared a mitigation case by retaining a psychiatrist and an

addictionologist, seeking the release of Murdaugh’s Rolodex

from the state to contact character witnesses, and having the

mitigation specialist prepare a mitigation report. The trial

court ordered Murdaugh’s mitigation experts, Dr. Demming

and Dr. Shaw, and Lisa Christianson, to submit their reports

to the state by August 24, 2001.
MURDAUGH V. RYAN 9

On August 27, 2001, Lorona notified the state that

Murdaugh would not allow him to file with the court, or

provide to the prosecution, any of the mitigation materials the

defense had prepared. The state moved to compel and sought

sanctions against Lorona.

The trial court held a hearing on September 7, 2001.

Lorona told the court that Murdaugh feared that his life was

in danger and believed that staying in the Arizona

Department of Corrections would effectively be a death

sentence whether or not he was sentenced to death. Lorona

had asked the state to agree to an interstate compact to allow

Murdaugh to serve his time outside Arizona, but the state

refused. The court clarified that it did not have the authority

to tell the Department of Corrections where to place an

inmate.

Because he could not serve a life sentence outside of

Arizona, Murdaugh instructed his counsel that he did not

want to put on any mitigation case at all. The court informed

Murdaugh that if he did not present mitigation, the court

would seek mitigating evidence from any source legitimately

available to the court and would put the burden on the state to

provide mitigating evidence.

Three weeks later, the court held another hearing about

Murdaugh’s objection to the presentation of mitigating

evidence. Lorona explained that though he thought

Murdaugh was competent to waive mitigating evidence, the

court was required to determine the competency issue before

proceeding. The court considered whether it could compel

either side to present mitigating evidence and asked for

evidence regarding Murdaugh’s competence.
10 MURDAUGH V. RYAN

The DA offered the testimony of the state’s expert, Dr.

Lang. Dr. Lang had experience conducting competency

evaluations but did not do one in this case. She testified that

during the time she spent with Murdaugh, she did not observe

any indications that the petitioner was unable to understand

the nature of the proceedings against him or that he was

incompetent. Dr. Lang also testified that Murdaugh was able

to state the charges against him, seemed to understand her

questions, and appeared coherent, and that she had no reason

to disagree with the prior competency determinations made

before Murdaugh pled guilty. Lorona asked the court to take

judicial notice of the earlier reports submitted by Drs. Scialli,

Sindelar, and Potts regarding Murdaugh’s competence to

plead guilty. The court did so.

The court found Murdaugh competent to assist counsel,

to understand the nature of the proceedings, and to waive his

right to present mitigating evidence. The court went on to

conclude that the petitioner had a Fifth Amendment right “not

to testify directly or indirectly through other means.” The

court ruled that it would not compel the defense to present

mitigation but that it would compel the state to do so.

The state then proceeded to present mitigating evidence.

The state first moved to admit the materials Dr. Deming used

in preparing his report, as well as a preliminary draft of Dr.

Deming’s report and a 1978 medical records evaluation of

Murdaugh. Defense counsel objected, arguing that any

information beyond what was contained in the Rule 11

competency reports was private. The trial court sustained the

objection and declined to consider these materials, finding

that to do so would moot Murdaugh’s waiver of mitigation.
MURDAUGH V. RYAN 11

The state next called Dr. Lang to offer mitigating

evidence. Dr. Lang testified that she had diagnosed

Murdaugh with polysubstance dependence based on his

history of drug abuse and with antisocial personality disorder

based on his history of aggressive and violent behavior,

disrespect for society, involvement in illegal activity, and

personality testing. Dr. Lang also testified that she did not

believe Murdaugh was paranoid or delusional at the time of

the offense, that neither his capacity to appreciate the

wrongfulness of his conduct nor to conform his conduct to the

requirements of law were significantly impaired at the time

of the offense, and that his cognitive functioning was

unimpaired.

More than halfway through this testimony, Lorona asked,

“Is there some mitigation here somewhere?” The court noted

its concern that the state was using the presentation of

mitigating evidence as a pretense to introduce additional

aggravating evidence. The court then proceeded to question

Dr. Lang directly about Murdaugh’s drug use leading up to

Reynolds’s murder and how it affected Murdaugh’s mental

state. Dr. Lang testified that the psychological impact of

methamphetamine ingestion varies but can include euphoria,

a feeling of power, increased energy, and decreased need to

sleep or eat; it also may aggravate aggression and paranoia.

Defense counsel declined to cross-examine Dr. Lang.

Despite Murdaugh’s decision to waive mitigation, Lorona

filed a six-page sentencing memorandum that was limited to

the evidence that had been filed with the court. It did not

refer to any of the mitigation reports. Counsel argued that

Murdaugh’s convictions for Eggert’s death could establish
12 MURDAUGH V. RYAN

 At the time of Murdaugh’s sentencing, Arizona law required a

2

sentencing judge to find one or more of fourteen enumerated aggravating

circumstances before a capital defendant could be eligible for the death

penalty. See Ariz. Rev. Stat. § 13-703(E). The four aggravating

circumstances relevant to this appeal are:

(F)(1). The defendant has been convicted of another

offense in the United States for which under Arizona

law a sentence of life imprisonment or death was

imposable.

(F)(2). The defendant has been or was previously

convicted of a serious offense, whether preparatory or

completed. Convictions for serious offenses committed

on the same occasion as the homicide, or not committed

on the same occasion but consolidated for trial with the

homicide, shall be treated as a serious offense under

this paragraph.

(F)(5). The defendant committed the offense as

consideration for the receipt, or in expectation of the

receipt, of anything of pecuniary value.

(F)(6). The defendant committed the offense in an

especially heinous, cruel or depraved manner.

See id. § 13-703(F).

either of two aggravating factors : that Eggert’s murder was

2

a crime for which Murdaugh could be sentenced to life

imprisonment or the death penalty, (F)(1), or that Eggert’s

murder was a prior violent felony, (F)(2). Ariz. Rev. Stat.

§§ 13-703(F)(1), (F)(2) (2001). Counsel argued, though, that

in accordance with the terms of the plea agreement, Eggert’s

murder could not establish both factors. Counsel also argued

that the state had not established aggravating factor (F)(5),

pecuniary gain. Finally, counsel argued that the state had not

proved beyond a reasonable doubt factor (F)(6) or that the
MURDAUGH V. RYAN 13

 Arizona law at the time required a sentencing judge to consider five 3

“statutory” mitigating circumstances:

(G)(1). The defendant’s capacity to appreciate the

wrongfulness of his conduct or to conform his conduct

to the requirements of law was significantly impaired,

but not so impaired as to constitute a defense to

prosecution.

(G)(2). The defendant was under unusual and

substantial duress, although not such as to constitute a

defense to prosecution.

(G)(3). The defendant was legally accountable for the

conduct of another under the provisions of § 13-303,

but his participation was relatively minor, although not

so minor as to constitute a defense to prosecution.

(G)(4). The defendant could not reasonably have

foreseen that his conduct in the course of the

commission of the offense for which the defendant was

convicted would cause, or would create a grave risk of

causing, death to another person.

(G)(5). The defendant’s age.

Ariz. Rev. Stat. § 13-703(G). It also required the judge to consider any

other “nonstatutory” mitigating circumstances that were “relevant in

determining whether to impose a sentence less than death.” Id.

offense was committed in an especially heinous, cruel, or

depraved manner. With respect to statutory mitigating

circumstances, counsel asserted that Murdaugh’s 3

methamphetamine use rendered him unable to appreciate the

wrongfulness of his conduct or to conform his conduct to the

requirements of the law, but not so much as to constitute a

defense. Counsel pointed to testimony offered at presentence
14 MURDAUGH V. RYAN

hearings that Murdaugh was under the influence of

methamphetamine at the time of the killing.

The trial court sentenced Murdaugh to death. The court

found Reynolds’s murder was especially cruel, heinous or

depraved under Arizona Revised Statute § 13-703(F)(6), and

found Eggert’s murder to be an aggravating circumstance

under Arizona Revised Statute § 13-703(F)(1). The court

considered the five statutory mitigating factors. Id. §§ 13-

703(G)(1)–(5). The court found that there was some evidence

to support factor (G)(1), that the defendant’s capacity to

appreciate the wrongfulness of his conduct or conform his

conduct to the requirements of the law was significantly

impaired. This evidence included the four reports prepared

for Murdaugh’s competency determinations before he pled

guilty, his paranoid thoughts, and his long history of chronic

drug abuse. The court also considered the testimony of

Dr. Lang, but “only to the extent her testimony offered

mitigating evidence.” The court ultimately concluded that the

evidence did not establish the (G)(1) mitigating factor.

The court next found eight non-statutory mitigating

factors: (1) Murdaugh was under the influence of drugs at the

time of the crime; (2) he was a chronic drug abuser; (3) he

has a personality disorder; (4) he experiences paranoid

thoughts; (5) the combination of these four circumstances

may have impacted his mental abilities; (6) he cooperated

with law enforcement; (7) he lacked a prior criminal record;

and (8) he admitted guilt and expressed concern toward the

families of his victims. The court afforded these factors little

weight and the aggravating factors great weight. The court

concluded that the nonstatutory factors were insufficient to

warrant leniency.
MURDAUGH V. RYAN 15

4. Direct Appeal

The Arizona Supreme Court upheld Murdaugh’s

convictions and death sentence on direct appeal. State v.

Murdaugh, 97 P.3d 844 (Ariz. 2004) (en banc). The court

addressed four issues. First, it held that the delay in

Murdaugh’s case did not constitute cruel and unusual

punishment. Id. at 851. Second, it held that reasonable

evidence supported the trial court’s finding that Murdaugh

was competent to plead guilty. Id. at 852. Third, the court

rejected Murdaugh’s argument that his guilty plea was not

knowingly made because he was not told he had a Sixth

Amendment right to have a jury determine his sentence. Id.

at 853–54. The court held that such a right did not exist at the

time Murdaugh pled guilty. Id. at 853. Additionally, the

court found nothing in the record that indicated that

Murdaugh’s decision to plead guilty was influenced by

whether a judge or a jury would decide if he deserved to be

sentenced to death. Id. at 854.

Finally, the court addressed Murdaugh’s Ring claim that

he was improperly sentenced by a judge rather than a jury.

Id. at 854–62. The court began by reiterating that Ring error

is procedural error subject to harmless error review, not

structural error as Murdaugh argued. Id. at 854–55.

Reviewing Murdaugh’s sentence for harmless error, the court

found that the (F)(1) aggravating factor fell outside the Ring

rule and that the state had proven the (F)(6) aggravating

factor beyond a reasonable doubt. Id. at 855–58.

Considering the mitigating evidence adduced during the

penalty phase, including Murdaugh’s sentencing

memorandum, Dr. Lang’s testimony during the sentencing

hearing, the facts as recounted by the trial court, evidence that

Murdaugh took steps to avoid detection, and the competency
16 MURDAUGH V. RYAN

reports produced before the plea agreement, the court held

that no reasonable jury could find that the evidence was

“sufficiently substantial” to call for leniency. Id. at 859–60.

The court further held that because no mental health

professional found a causal nexus between Murdaugh’s

paranoid thoughts and delusions and the murders, no

reasonable jury would have weighed these factors any

differently than did the trial judge. Id. at 860. Finally, the

court noted that the record did not support any mitigating

circumstance not considered by the trial court. Id. at 861–62.

Justice Berch dissented on the Ring issue. Id. at 862–64.

She argued that a jury could have found the evidence of

Murdaugh’s mental impairment from chronic drug abuse

more important than the judge did in deciding the (F)(6)

aggravating factor. Id. at 863–64. She also pointed out that

the majority acknowledged that “some evidence support[ed]

a finding of the statutory mitigating factor [of drug

impairment] under [Ariz. Rev. Stat.] § 13-703(G)(1)” making

it plausible that a reasonable jury could have found that the

factor existed. Id. at 864. Finally, she noted that the

aggravating factors here were similar to those in State v.

Pandeli, 65 P.3d 950 (Ariz. 2003), a case in which the court

remanded for resentencing. Id.

5. Post-Conviction Review

Murdaugh raised twelve claims in his petition for postconviction review, and the Arizona state court denied relief.

Concerning his claim that the competency determination was

inadequate, the court found that there was no need for the trial

court to conduct a further competency determination, as the

record was devoid of any evidence suggesting that
MURDAUGH V. RYAN 17

Murdaugh’s decision to plead guilty was not based on his

desire to spare the victim’s family and his family from trial.

The court held that Murdaugh’s second claim for invalid

waiver of mitigation was precluded because he failed to raise

the claim on appeal. The court further found that Murdaugh

was aware of the mitigation evidence that could be presented

but nevertheless decided not to present it. The court also

noted that the trial court “considered and found mitigation”

despite Murdaugh’s waiver.

The court found Murdaugh’s third claim for mental

competence was precluded.

The court dismissed Murdaugh’s fourth claim that his

guilty plea and decision to waive mitigation were involuntary

because they were the products of false promises and threats,

finding that the trial court carefully questioned Murdaugh

during his plea colloquy and that Murdaugh told the trial

court there were no other promises made to him.

The court set an evidentiary hearing to determine the

merits of Murdaugh’s sixth claim for ineffective assistance of

trial counsel. The court rejected Murdaugh’s claims about

inadequate public financing of histrial and appellate counsel,

finding that there was no legal basis to determine that the

Office of Court Appointed Counsel’s authorized pay scale

was inadequate.

The court held the trial court’s order that the prosecutor

present mitigation evidence did not create a conflict of

interest, and additionally that this claim was precluded.
18 MURDAUGH V. RYAN

Concerning Murdaugh’s claim that the sentencing court

used an unconstitutional nexus text, the court held that the

court used the lack of a causal nexus to weigh the evidence,

rather than to screen it out. The court pointed out that the

trial court did in fact find Murdaugh’s mental state and

methamphetamine addiction at the time of the crime to be

mitigating circumstances, and gave them little weight.

The court summarily dismissed Murdaugh’s claim that

the Arizona Supreme Court erroneously determined that the

Ring violation was subject to harmless error analysis, and his

claim that his appellate counsel was ineffective for failing to

raise the issue of whether a Ring violation is subject to

harmless error analysis and for failing to raise whether there

was a proper determination that the Ring violation was

harmless error.

The court also dismissed Murdaugh’s claim that lethal

injection is cruel and unusual punishment.

6. State Court Evidentiary Hearing

The post-conviction court held an evidentiary hearing to

determine the merits of Murdaugh’s alleged fifteen instances

of ineffective assistance of trial counsel. Murdaugh claimed

his counsel knew or should have known that he was not

competent to waive mitigation and that counsel breached his

duty to investigate Murdaugh’s competency further. The

court reviewed all of the doctors’ reports that trial counsel

had before Murdaugh waived mitigation and found that

nothing in the record, or in the evidence presented during the

evidentiary hearing, showed that Murdaugh’s competence at

the time he waived mitigation had deteriorated from the time

he was deemed competent at his change of plea. Moreover,
MURDAUGH V. RYAN 19

no evidence had been presented to undermine the trial court’s

finding of competence. The court also concluded that

Murdaugh failed to show prejudice both because a competent

defendant has the right to ignore the intelligent advice of his

counsel, and because the mitigating evidence, if presented,

would not have overcome the aggravating evidence. The

court declined to consider trial counsel’s performance.

The Arizona Supreme Court denied Murdaugh’s petition

for review of the denial of post-conviction relief.

7. District Court Decision

Murdaugh filed a federal habeas petition, which the

district court denied in full. The court also denied

Murdaugh’s motions for evidentiary development. The court

found that many of the claims were record-based and did not

require evidentiary development. For those that were not

record-based, the court found that Murdaugh had not shown

good cause for discovery or had failed to identify contested

facts bearing on the merits of his petition. The court also

denied an evidentiary hearing. The court granted a certificate

of appealability with respect to eight claims. We expanded

the certificate of appealability to include four additional

claims briefed by Murdaugh on appeal.

II. Standard of Review

We review the denial of habeas relief de novo, Doody v.

Ryan, 649 F.3d 986, 1001 (9th Cir. 2011) (en banc), and the

district court’s findings of fact for clear error, Brown v.

Ornoski, 503 F.3d 1006, 1010 (9th Cir. 2007). We review the

denial of an evidentiary hearing for abuse of discretion.

Stanley v. Schriro, 598 F.3d 612, 617 (9th Cir. 2010).
20 MURDAUGH V. RYAN

The Antiterrorism and Effective Death Penalty Act

(“AEDPA”) governs Murdaugh’s petition because he filed it

after the statute went into effect. See Lindh v. Murphy,

521 U.S. 320, 336–37 (1997). AEPDA circumscribes a

federal court’s power to grant habeas relief to a state prisoner.

See Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). “A

state court’s determination that a claim lacks merit precludes

federal habeas relief so long as ‘fairminded jurists could

disagree’ on the correctness of the state court’s decision.”

Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (quoting

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). When

a state court has adjudicated a claim on the merits, we may

grant relief only if the state court’s resolution of that claim

“(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented

in the State court proceeding.” 28 U.S.C. § 2254(d).

Clearly established federal law “refers to the holdings, as

opposed to the dicta, of th[e Supreme] Court’s decisions as of

the time of the relevant state-court decision.” Williams v.

Taylor, 529 U.S. 362, 412 (2000). A state court decision can

involve an unreasonable application of Supreme Court

precedent in one of two ways: “[I]f the state court identifies

the correct governing legal rule from [the Supreme] Court’s

cases but unreasonably applies it to the facts of the particular

state prisoner’s case,” or “if the state court either

unreasonably extends a legal principle from [Supreme Court]

precedent to a new context where it should not apply or

unreasonably refuses to extend that principle to a new context

where it should apply.” Id. at 407. “Stated simply, a federal

habeas court making the ‘unreasonable application’ inquiry
MURDAUGH V. RYAN 21

should ask whether the state court’s application of clearly

established federal law was objectively unreasonable.” Id. at

409. In considering whether the state court unreasonably

applied clearly established federal law, review is limited to

the factual record that was before the state court that

adjudicated the claim on the merits. Pinholster, 131 S. Ct. at

1398.

In determining whether a state court made an

unreasonable determination of the facts, “it is not enough that

we would reverse in similar circumstances if this were an

appeal from a district court decision. Rather, we must be

convinced that an appellate panel, applying the normal

standards of appellate review, could not reasonably conclude

that the finding is supported by the record.” Taylor v.

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

III. Discussion

1. Ring Claim

In Ring v. Arizona (Ring II), 536 U.S. 584, 588–89

(2002), the Supreme Court held that a defendant is entitled to

a jury determination of “the presence or absence of the

aggravating factors required byArizona law for imposition of

the death penalty.” This holding followed from the Court’s

decision in Apprendi v. New Jersey, 530 U.S. 466, 490

(2000), that a criminal defendant has a Sixth Amendment

right to have a jury determine “any fact that increases the

penalty for a crime beyond the prescribed statutory

maximum.” In response to Ring II, Arizona amended its

capital sentencing scheme. See State v. Ring (Ring III),

65 P.3d 915, 926 (Ariz. 2003) (en banc) (describing Senate

Bill 1001). The new procedure allowed the jury to find and
22 MURDAUGH V. RYAN

 State v. Lamar, 115 P.3d 611 (Ariz. 2005); State v. Moody, 94 P.3d 4

1119 (Ariz. 2004); State v. Dann, 79 P.3d 58 (Ariz. 2003); State v.

Montano, 77 P.3d 1246 (Ariz. 2003); State v. Nordstrom, 77 P.3d 40

(Ariz. 2003); State v. Rutledge, 76 P.3d 443 (Ariz. 2003); State v.

Prasertphong, 76 P.3d 438 (Ariz. 2003); State v. Ring, 76 P.3d 421 (Ariz.

2003); State v. Cropper, 76 P.3d 424 (Ariz. 2003); State v. Prince, 75 P.3d

114 (Ariz. 2003); State v. Jones, 72 P.3d 1264 (Ariz. 2003); State v.

Phillips, 67 P.3d 1228 (Ariz. 2003); State v. Finch, 68 P.3d 123 (Ariz.

2003); State v. Tucker, 68 P.3d 110 (Ariz. 2003); State v. Lehr, 67 P.3d

703 (Ariz. 2003); State v. Harrod, 65 P.3d 948 (Ariz. 2003); State v.

Pandeli, 65 P.3d 950 (Ariz. 2003); State v. Hoskins, 65 P.3d 953 (Ariz.

2003); State v. Canez, 74 P.3d 932 (Ariz. 2003).

consider the effect of aggravating and mitigating

circumstances and to decide whether the defendant should be

sentenced to death. Ariz. Rev. Stat. § 13-703.01(D) (2002).

On remand from the Supreme Court, the Arizona

Supreme Court considered the impact of Ring II on all capital

cases then pending on direct appeal. Ring III, 65 P.3d at 925.

The court held that failing to submit capital aggravating

factors to a jury did not require reversing the sentence if the

error was harmless. Id. at 933–36. In reviewing Ring error

for harmlessness, the court concluded that it was required to

consider whether reversible Ring error occurred with respect

to both the aggravating and mitigating circumstances. See id.

at 942–43. In separate opinions, the court then individually

reviewed for Ring error the death sentences of twenty-one

defendants. In nineteen of these cases, the court found Ring

error was not harmless and remanded for resentencing.4

Here, obviously, the court did not.
MURDAUGH V. RYAN 23

 The question presented in Ring II was: “whether [the] aggravating 5

factor may be found by the judge . . . or whether the Sixth Amendment’s

jury trial guarantee . . . requires that the aggravating factor determination

be entrusted to the jury.” 536 U.S. at 597.

A) Scope of the Right

We must first determine the scope of the right articulated

in Ring II. The state argues that our review for Ring error is

limited by the express wording of Ring II, 536 U.S. at

588–89, which addressed only “the aggravating factors

required by Arizona law for imposition of the death penalty.”5

A narrow reading of Ring II would extend the Sixth

Amendment right no further than its express holding by

concluding that a defendant only has a right to have a jury

determine aggravating factors.

We are not convinced that Ring II should be read so

narrowly. Echoing Apprendi, the Ring II Court held that a

jury must find any fact upon which the “increase of a

defendant’s authorized punishment [is] contingent.” Ring II,

536 U.S. at 602 (citing Apprendi, 530 U.S. at 482–83). The

Court stressed that “the inquiry is one not of form, but of

effect.” Id. (quoting Apprendi, 530 U.S. at 494) (internal

quotation marks omitted). Because the penalty of death was

contingent on the presence or absence of aggravating factors

under Arizona law, the Court held that Apprendi required a

jury to find them. Id. at 609.

But the existence of an aggravating factor was not the

only death-qualifying element of Arizona’s superseded

capital sentencing statute. In Ring II, the Supreme Court

described several determinations that had to occur under

Arizona law before a defendant became death-eligible,
24 MURDAUGH V. RYAN

 Unless otherwise noted, subsequent citations to Arizona statutes refer 6

to those statutes as they existed in 2001.

including the judge’s determination that “there are no

mitigating circumstances sufficiently substantial to call for

leniency.” Id. at 593 (quoting Ariz. Rev. Stat. § 13-703(F)

(2001)). Arizona’s sentencing scheme required a judge “to 6

determine if there are any mitigating circumstances” and

“weigh them against the aggravators and decide by ‘special

verdict’ whether a death sentence is appropriate.” State v.

Ring (Ring I), 25 P.3d 1139, 1151 (Ariz. 2001) (citations

omitted). The statute required “more than the presence of one

or more statutorily defined aggravating factors to impose the

death penalty.” Ring III, 65 P.3d at 946. It also mandated

that “a trier of fact . . . determine whether mitigating

circumstances call[ed] for leniency.” Id.

Under the superseded law, a defendant’s eligibility for a

death sentence was effectively contingent on the judge’s

findings regarding both aggravating and mitigating

circumstances. The “ultimate element” qualifying the

defendant for death was “at least one aggravating

circumstance not outweighed by one or more mitigating

factors.” Ring III, 65 P.3d at 935 (citing Ariz. Rev. Stat.

§ 13-703(E)); see also Ring II, 536 U.S. at 593. A judge’s

determination that no mitigating circumstances existed

therefore also served to establish a fact that qualified a

defendant for the death sentence. Applying the rationale of

Apprendi and Ring II, the existence or absence of a mitigating

circumstance was thus a finding of fact upon which the

“increase of a defendant’s authorized punishment [was]

contingent.” Ring II, 536 U.S. at 602.
MURDAUGH V. RYAN 25

This reasoning makes sense given the nature of

factfinding at the death-sentencing stage. A finding that

certain facts establish an aggravating factor often necessarily

implies that the same facts do not establish a mitigating

factor. In this appeal, for instance, Murdaugh argues his

dismemberment of Reynolds’s body demonstrates his

paranoia and delusions, and therefore helps establish a

mitigating circumstance. The state argues, conversely, that

the mutilation establishes that the murder was depraved. In

finding that dismemberment supported the (F)(6) aggravating

factor, then, the trial judge also implicitly found that this

evidence did not establish any mitigating factors. The

intertwined nature of the inquiry means that a factfinder’s

analysis of aggravating factors in isolation is conceptually

untenable.

A jury’s findings concerning aggravating factors are also

necessarily intertwined with its findings about mitigating

circumstances because of the process for hearing evidence at

the sentencing stage. A jury does not hear the aggravating

evidence in a void. Rather, a defendant presents mitigating

evidence, following the state’s presentation of aggravating

evidence, in an attempt to establish some basis for leniency.

See Ariz. Rev. State. §§ 13-752(E)–(G) (2012). It would be

impossible for a jury to consider only the aggravating

evidence in determining whether the aggravating factors were

met without also implicitly considering contravening

mitigating evidence. A jury that has listened to extensive

mitigating evidence about the defendant’s good character, for

instance, may be much less likely to find the defendant acted

heinously or cruelly in committing the offense. The right to
26 MURDAUGH V. RYAN

In practical effect, Ring II created a right to have the jury determine all 7

the facts on which a sentence of death depended, both aggravating and

mitigating, since capital sentencing statutes assigned this function to one

factfinder. See Ring III, 65 P.3d at 943. The capital sentencing statutes

in all states with the death penalty, with the sole exception of Nebraska,

now require juries to consider mitigating evidence, determine the

existence or absence of mitigating circumstances, and decide whether

death is the appropriate sentence. See Ala. Stat. § 13A-5-46(e); Ark. Code

§§ 5-4-602 (3)–(5), 603(a); Ariz. Rev. Stat. § 13-752; Cal. Penal Code

§ 190.3; Colo. Rev. Stat. § 18-1.3-1201(2)(a); Del. Code tit. 11,

§ 4209(c)(3); Fla. Stat. § 921.141(2); Ga. Code §§ 17-10-30(b), 31(a);

Idaho Code § 19-2515(3)(b); Ind. Code § 35-50-2-9(l); Kan. Stat. § 21-

6617(e); Ky. Rev. Stat. § 532.025(1)(b), (3); La. Code Crim. Proc. art.

905.3; Md. Crim. Law § 2-303(i)(1); Miss. Code § 99-19-101(3); Mo.

Rev. Stat. §§ 565.030.4, 565.032; Nev. Rev. Stat. § 175.554; N.H. Rev.

Stat. § 630:5(IV); N.C. Gen. Stat. § 15A-2000(b); N.Y. Crim. Proc.

§ 400.27; Ohio Rev. Code § 2929.03(D)(2); Okla. Stat., tit. 21, § 701.11;

Or. Rev. Stat. § 163.150; 42 Pa. Cons. Stat. § 9711; S.C. Code § 16-3-20;

S.D. Codified Laws § 23A-27A-3; Tenn. Code § 39-13-204; Tex. Code

Crim. Proc. art. 37.071; Utah Code § 76-3-207; Va. Code § 19.2-264.4;

Wash. Rev. Code § 10.95.060; Wyo. Stat. § 6-2-102. Although Montana

has not revised its capital sentencing scheme since Ring II, see Mont.

Code 46-18-301, the state also has not sentenced any defendant to

death since 1996. See Death Penalty Information Center, Death

Sentences in the United States from 1977 By State and By Year,

http://www.deathpenaltyinfo.org/death-sentences-united-states-1977-2008

(last visited April 18, 2013).

 The jury plays a similar role in the federal capital sentencing statute.

See 18 U.S.C. § 3594. Even in those states where the ultimate jury

recommendation of death remains nonbinding, the jury retains the role of

first factfinder. See Ala. Stat. § 13A-5-46(e); Del. Code tit. 11,

§ 4209(c)(3); Fla. Stat. § 921.141(2); Ga. Code §§ 17-10-30(b), 31(a); Ky.

Rev. Stat. § 532.025(1)(b), (3).

have a jury determine aggravating factors is therefore also a

de facto right to have a jury determine mitigating facts.7
MURDAUGH V. RYAN 27

 A narrow reading of Ring II is particularly problematic for an appellate 8

court reviewing a Ring error for harmlessness. In many cases, the

question of whether the judge’s role in finding aggravating factors

prejudiced the verdict will depend on the extant mitigating circumstances.

Consider a judge who found two aggravating factors when a jury would

have found only one. If there are no mitigating circumstances to

counterbalance the unblemished aggravator, the error is inconsequential—

but if there are substantial mitigating circumstances, the error might make

all the difference. See State v. Lehr, 67 P.3d 703, 705 (Ariz. 2003).

As the Supreme Court has stressed repeatedly, how a fact

is labeled is irrelevant to the Apprendi analysis. See Ring II,

536 U.S. at 602; Apprendi, 530 U.S. at 494. It is the effect of

a fact that dictates whether a jury must determine it.

Apprendi, 530 U.S. at 494; see also Alleyne v. United States,

133 S. Ct. 2151, 2155 (2013) (reiterating that any fact that has

the effect of increasing the penalty for a crime must be

submitted to the jury). Because the existence or absence of

mitigating circumstances directly affected whether Murdaugh

was death eligible under Arizona law, he had a right to have

a jury decide those facts.8

B) Standard of Review

We next address Murdaugh’s argument that, contrary to

the holding of the Arizona Supreme Court, Ring error is

structural and should not be subject to harmless error review.

In Ring II, the Supreme Court did not reach the question

of whether the Ring error there was harmless, noting that

“this Court ordinarily leaves it to lower courts to pass on the

harmlessness of error in the first instance.” 536 U.S. at 609

n.7 (citing Neder v. United States, 527 U.S. 1, 25 (1999)).

The Court reiterated that it had left open the question of

whether the error in Ring II was harmless in Mitchell v.
28 MURDAUGH V. RYAN

Esparza, 540 U.S. 12, 17 (2003). The Court emphasized that

where it has not set forth a standard of review for a

constitutional error and the Court’s precedent “is, at best,

ambiguous,” a federal court may not overrule a state court’s

decision to apply harmless error review. Id.

In Ring III, the Arizona Supreme Court definitively

answered this question, applying the harmless error standard

set forth in Neder. 65 P.3d at 935–36. As part of this review,

the court asked whether it could conclude, “beyond a

reasonable doubt, that no rational trier of fact would

determine that the mitigating circumstances were sufficiently

substantial to call for leniency.” Id. at 946. If, in future Ring

error cases, the court could not answer this question in the

affirmative, it would remand the case for resentencing by a

jury. Id. The state challenged the Arizona Supreme Court’s

application of the harmless error test, arguing that this

application of harmless error review, which included review

of the mitigating factors for harmless error, was beyond the

scope of the constitutional error articulated in Ring II. See

Nordstrom, 77 P.3d at 46 n.5. The Arizona Supreme Court

rejected this argument, and the Supreme Court denied

certiorari. See Pandeli, 540 U.S. 962 (2003). Thus, it is now

well-settled that Ring error is subject to the harmless error

test articulated in Ring III, and we may not reconsider the

issue here.

C) Harmless Error Review

Harmless error analysis requires federal courts to

determine “whether the error ‘had substantial and injurious

effect or influence in determining the jury’s verdict.’” Brecht

v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos

v. United States, 328 U.S. 750, 776 (1946)). We “apply the
MURDAUGH V. RYAN 29

Brecht test without regard for the state court’s harmlessness

determination.” Pulido v. Chrones, 629 F.3d 1007, 1012 (9th

Cir. 2010) (citing Fry v. Pliler, 551 U.S. 112, 121–22

(2007)). The Brecht standard has been described as follows:

[I]f one cannot say, with fair assurance, after

pondering all that happened without stripping

the erroneous action from the whole, that the

judgment was not substantially swayed by the

error, it is impossible to conclude that

substantial rights were not affected. The

inquiry cannot be merely whether there was

enough to support the result, apart from the

phase affected by the error. It is rather, even

so, whether the error itself had substantial

influence.

Merolillo v. Yates, 663 F.3d 444, 454 (9th Cir. 2011) (quoting

Kotteakos, 328 U.S. at 765). “Where the record is so evenly

balanced that a judge ‘feels himself in virtual equipoise as to

the harmlessness of the error’ and has ‘grave doubt about

whether an error affected a jury [substantially and

injuriously], the judge must treat the error as if it did so.’” Id.

(quoting O’Neal v. McAninch, 513 U.S. 432, 435, 437–38

(1995)) (alteration in original) (internal quotations omitted).

Of course, here, the underlying error is the absence of a jury

itself. Accordingly, the Brecht inquiry is whether the absence

of a jury as factfinder at the penalty stage “substantially and

injuriously” affected or influenced the outcome. In other

words, we ask whether a rational jury could have found that

the facts called for leniency. In order to determine whether

Murdaugh has met the Brecht standard, we review the

aggravating and mitigating factors.
30 MURDAUGH V. RYAN

 Recall that the (F)(1) aggravating factor is established when a 9

defendant “has been convicted of another offense in the United States for

which under Arizona law a sentence of life imprisonment or death was

imposable.” Ariz. Rev. Stat. § 13-703. The (F)(6) aggravating factor is

established if the murder was committed in an “especially cruel, heinous

or depraved manner.” Id.

a) Aggravating factors

The Arizona Supreme Court held that the (F)(1)

aggravating factor fell outside the Ring rule and concluded

that the government had proven the (F)(6) aggravating factor

beyond a reasonable doubt. Murdaugh does not challenge 9

the court’s determination as to the (F)(1) aggravating factor.

With respect to the (F)(6) factor, he argues that the Arizona

Supreme Court’s conclusion that any rational jury would have

found the aggravating factor “hinged upon Murdaugh’s

mutilation of the body after the crime,” which the court

further found “needed to be motivated by debasement.”

Since he mutilated the body to avoid detection, Murdaugh

contends a rational jury might not have found the F(6) factor.

But the court did not “hinge” its determination that the

state had proven the (F)(6) factor on Murdaugh’s mutilation

of the body alone. Murdaugh, 97 P.3d at 856. The court

correctly noted that the (F)(6) aggravating factor would have

been established if the state had proven only one of the

heinous, cruel, or depraved elements. Id. And, although the

court concluded that “mutilation by itself will establish the

elements of heinousness or depravity,” id. at 858, the court

nonetheless found that three other factors also supported a

finding that the act was “heinous or depraved.” According to

the court, the state established beyond a reasonable doubt that
MURDAUGH V. RYAN 31

(1) Murdaugh relished the murder, (2) the murder was

senseless, and (3) the victim was helpless. Id. at 856.

Murdaugh is also incorrect in asserting that the Arizona

Supreme Court found the mutilation “needed to be motivated

by debasement.” To the contrary, the court described how

Murdaugh mutilated the body to prevent identification and

cited State v. James, 685 P.2d 1293, 1299 (Ariz. 1984), for

the proposition that “[t]he mode of disposing of the body

itself demonstrates a certain callousness and depravity and

disregard for the victim’s family who might never have

learned of the fate of [the victim].” Id. at 857. Thus,

regardless of Murdaugh’s ultimate purpose in mutilating the

body, the court concluded the mutilation demonstrated

depravity for purposes of finding the (F)(6) factor. Id.

Although Murdaugh is correct that “heinous and

depraved” refers to the mental state of the defendant, it is the

defendant’s “words and actions” which demonstrate this

mental state. See State v. Gretzler, 659 P.2d 1, 10 (Ariz.

1983) (en banc). The Arizona Supreme Court has repeatedly

held that needlessly mutilating a body is the kind of action

that shows depravity, regardless of the mutilator’s purpose.

See State v. Spencer, 859 P.2d 146, 154 (Ariz. 1993); James,

685 P.2d at 1299. We conclude that no rational jury could

have found that the evidence failed to establish the (F)(6)

factor.

b) Mitigating factors

Murdaugh next argues that a rational jury could have

found that his evidence established the (G)(1) mitigating

factor and consequently imposed a sentence of life, not death.

We agree. For the reasons discussed below, we hold that the
32 MURDAUGH V. RYAN

Ring error had a “substantial and injurious effect or

influence” on the trial court’s failure to find the (G)(1)

mitigating factor and thus the trial court’s imposition of a

death sentence.

The (G)(1) factor exists if the “defendant’s capacity to

appreciate the wrongfulness of his conduct or to conform his

conduct to the requirements of the law was significantly

impaired but not so impaired as to constitute a defense to

prosecution.” Ariz. Rev. Stat. § 13-703(G)(1). Drug

impairment can be a mitigating circumstance under the (G)(1)

factor, but only if the defendant can show a connection

between the drug use and the offense. See State v. Sansing,

77 P.3d 30, 37 (Ariz. 2003). Typically, testimony by an

expert witness can establish this causal nexus. Id. The claim

of drug impairment is undermined, though, if the evidence

shows “the defendant took steps to avoid prosecution shortly

after the murder, or when it appears that intoxication did not

overwhelm the defendant’s ability to control his physical

behavior.” Id. (quoting State v. Rienhardt, 951 P.2d 454,

466–67 (Ariz. 1997) (en banc)).

Even though Murdaugh did not present a mitigation case,

the trial court considered the Rule 11 competency reports and

Dr. Lang’s testimony in determining whether the (G)(1)

mitigating factor was established. This evidence included Dr.

Potts’s conclusion that “[t]he use of methamphetamine quite

likely greatly contributed to the alleged offenses having

occurred,” as well as Dr. Sindelar’s summary of Murdaugh’s

“long history of multiple substance abuse, including

intravenous injection of methamphetamine.” Based on this

record, the trial court found that Murdaugh (1) evinced

paranoid thoughts, including his paranoid belief that the CIA

had placed a tracking device in his head; (2) had a long
MURDAUGH V. RYAN 33

history of chronic drug abuse, which may have been a cause

of his paranoid delusions; (3) was ingesting drugs and was

under the influence of drugs when he murdered Reynolds;

and (4) possibly suffered from a personality disorder

amplified by methamphetamine abuse. In considering the

totality of the circumstances, the trial court also found that

Murdaugh arranged for Reynolds to be lured to his home,

imprisoned him for an extended period of time, elaborately

dismembered his body, and then was able to find medical

care for himself when he injured his leg. The trial court

concluded that “[t]he industry and thought, manifested over

an extended period of time, which went into the murder of

David Reynolds belies a finding that the Defendant was

significantly impaired.” On this basis, the trial court held that

the record did not establish by a preponderance of the

evidence that Murdaugh’s capacity to appreciate the

wrongfulness of his conduct or to conform his conduct to the

requirements of the law was significantly impaired, and thus

that the evidence did not establish the (G)(1) mitigating

factor.

While it is certainly possible that a reasonable jury could

have agreed with the trial judge and found that the facts

surrounding the murder undermined the evidence of drug

impairment in the Rule 11 reports, it is also entirely possible

that a rational trier of fact could have drawn the opposite

conclusion and found Murdaugh’s actions did not evince a

sober mind. See, e.g., Nordstrom, 77 P.3d at 46. This is

particularly true in light of the low burden of proof for

finding a statutory mitigating factor: a nonunanimous jury

need only find the mitigating factor supported by a

preponderance of the evidence. See Ariz. Rev. Stat.

§ 13-703(C). For instance, a reasonable jury might not have

found that Murdaugh’s actions to cover up the murder
34 MURDAUGH V. RYAN

demonstrated any kind of sober sophistication. Instead of

cleaning up the crime scene, Murdaugh asked Rohrs and

Gross to sprinkle horse manure over Reynolds’s body and on

the surrounding blood, and then left the body there for the

remainder of the day. It was not until that evening—probably

at least eight to ten hours after the crime—that Murdaugh

dismembered the body. Thus, a reasonable jury might not

have found Murdaugh’s attempt to thwart identification of the

body to be inconsistent with a finding that Murdaugh was

“significantly, but only partially, impaired” at the time of the

offense. Gretzler, 659 P.2d at 17. That a rational jury might

have found that the evidence established the (G)(1) mitigating

factor is sufficient to establish prejudice under Brecht.

The Arizona Supreme Court’s determination that any

error was harmless casts no doubt on our conclusion, because

that court clearly failed to consider evidence in the

record—evidence that the trial court did consider in

determining whether the (G)(1) mitigating factor was

established. In reviewing the trial court’s finding on the

(G)(1) factor for harmless error, the Arizona Supreme Court

stated that it considered the reasoning of the trial court, the

testimony of Dr. Lang and “uncontroverted evidence in the

record . . . that Murdaugh took steps to avoid detection.”

Murdaugh, 97 P.3d at 860. The court found that because

Murdaugh did not present any mitigation, he did not present

“any expert testimony to establish that his ability to control

his behavior or appreciate the wrongfulness of his conduct

was significantly impaired.” Id. (emphasis added). Thus,

“[b]ecause of the complete lack of evidence of a causal

connection between Murdaugh’s drug use and the murder,”

the court concluded “beyond a reasonable doubt that no

rational jury would have found that Murdaugh established the
MURDAUGH V. RYAN 35

(G)(1) mitigating circumstance.” Id. at 860 (emphasis

added).

Murdaugh correctly argues that the Arizona Supreme

Court failed to consider the Rule 11 competency reports,

which included expert testimony establishing a direct causal

link between Murdaugh’s drug use and the murder. Under

then-existing Arizona case law, the Rule 11 reports were the

kind of evidence that could have established drug impairment

for purposes of the (G)(1) factor. See Gretzler, 659 P.2d at

16–17 (concluding the evidence supported trial judge’s

finding of the (G)(1) factor when the defendant “used drugs

continuously for a period of over nine years” and “medical

testimony [showed] that this continuous use of drugs likely

impaired defendant’s volitional capabilities”). Moreover, in

applying harmless error analysis in other Ring error cases, the

Arizona Supreme Court has found reversible error as to the

(G)(1) factor based solely on the contradicted testimony of

one expert. See Pandeli, 65 P.3d at 953; see also Nordstrom,

77 P.3d at 46 (finding Ring error where defendant presented

evidence from one expert on the possible connection between

defendant’s alcohol and substance abuse and the murders

even though the evidence “was not particularly compelling”).

Thus, under the Arizona Supreme Court’s own cases, we

cannot see how the Arizona Supreme Court could have

reasonably concluded that no rational jury could find the

evidence here supported drug impairment by a preponderance

of the evidence. Had the Arizona Supreme Court considered

all the evidence in conducting its harmless error review, it

would have been impossible to conclude that no rational jury

could have found the (G)(1) factor.

We conclude that the absence of a jury at the sentencing

stage had a “substantial and injurious effect or influence” on
36 MURDAUGH V. RYAN

 Though not part of our prejudice analysis here, we note that of the 10

nineteen Ring cases remanded for resentencing by a jury, eleven have

resulted in a sentence other than death. See Justin F. Marceau, Arizona’s

Ring Cycle, 44 Ariz. St. L.J. 1061, 1077 (2012).

Murdaugh’s sentence of death. Brecht, 507 U.S. at 637

(internal quotation marks and citations omitted). Although a

jury would have found the (F)(6) aggravating factor beyond

a reasonable doubt, some evidence supported the (G)(1)

mitigating factor. The expert reports, though not drafted for

the purpose of mitigation, provided some details about

Murdaugh’s chronic drug use, which a jury might have found

established drug impairment. Because a jury could have

found that a preponderance of the evidence supported the

(G)(1) mitigating factor, and voted for leniency on that basis,

the Ring error was prejudicial. We must grant the habeas

petition.10

2. Unconstitutional Nexus Test Claim

Murdaugh next argues that, in reviewing his sentence for

harmless error, the Arizona Supreme Court applied an

unconstitutional causal nexus test to mitigating evidence of

his drug use and delusions.

Because the state post-conviction court did not address

this claim, we review de novo whether the Arizona Supreme

Court applied an unconstitutional test. In his petition for

post-conviction relief, Murdaugh argued that both the

sentencing court and the Arizona Supreme Court applied an

unconstitutional nexus test. The state post-conviction court

did consider and reject Murdaugh’s claim with respect to the

sentencing court, a decision Murdaugh does not appeal. The

state post-conviction court said nothing, however, regarding
MURDAUGH V. RYAN 37

Murdaugh’s claim about the Arizona Supreme Court. Given

that this claim had arguable merit, and in light of the state

post-conviction court’s otherwise careful consideration and

evaluation of every other claim in Murdaugh’s petition, “the

evidence leads very clearly to the conclusion that a federal

claim was inadvertently overlooked in state court,” thus

permitting de novo review. Johnson v. Williams, 133 S. Ct.

1088, 1097 (2013).

A state court violates a capital defendant’s Eighth and

Fourteenth Amendment rights to an individualized sentencing

when it excludes or refuses to consider in mitigation evidence

that lacks a causal nexus to the crime. See Smith v. Texas,

543 U.S. 37, 45 (2004) (per curiam); Tennard v. Dretke,

542 U.S. 274, 282–88 (2004). A court may, however,

consider the failure to establish a causal connection between

the mitigating factors and the crime “in assessing the quality

and strength of the mitigation evidence.” Towery v. Ryan,

673 F.3d 933, 945 (9th Cir. 2012) (quoting Schad v. Ryan,

671 F.3d 708, 723 (9th Cir. 2011) (per curiam)).

Murdaugh argues that an unlawful nexus test was

manifest in the Arizona Supreme Court’s explanation of why

a rational jury would not have weighed the nonstatutory

mitigating circumstances differently than the sentencing court

did:

The trial court first found that the evidence

proffered in support of the (G)(1) mitigating

circumstance also supported a finding of

[eight] non-statutory mitigating circumstances

. . . . The reports prepared by Drs. Sindelar,

Potts, and Scialli do reveal that Murdaugh

experienced certain paranoid thoughts and
38 MURDAUGH V. RYAN

 As we discussed in our analysis of Murdaugh’s Ring claim, supra 11

Section III(1)(C)(b), the court did neglect to consider relevant expert

evidence in its discussion of the (G)(1) statutory mitigating factor. But

nothing in the court’s opinion suggests that omission was the result of

applying a nexus test.

delusions that were likely exacerbated by his

history of chronic methamphetamine use. But

because no mental health professional found

a causal nexus between these conditions and

the murders, we find beyond a reasonable

doubt that no rational jury would have

weighed these factors any differently than did

the trial judge.

Murdaugh, 97 P.3d at 860 (citations omitted).

The court’s discussion makes clear that it did not refuse

to consider evidence that was not causally connected to the

crime. See Eddings v. Oklahoma, 455 U.S. 104, 113–14

(1982). After observing that the sentencing court found

eight nonstatutory mitigating circumstances—including

impairment from chronic and concurrent drug abuse, a

personality disorder, and paranoid thoughts—the court

explained that its task was to “determine whether a jury could

have weighed these mitigating factors differently than did the

trial judge,” who “did not give [them] much weight.”

Murdaugh, 97 P.3d at 860. The Arizona Supreme Court took

no issue with the trial court’s finding that the Sindelar, Potts,

and Scialli reports did in fact establish various nonstatutory

mitigating circumstances. Rather, the court took the fact

11

that no expert had drawn a causal link between those

circumstances and Murdaugh’s crime as compelling evidence
MURDAUGH V. RYAN 39

that a rational jury would have afforded them little weight, as

the trial court did.

Because the court only raised the issue of a causal nexus

to “determine the weight” that a hypothetical jury would have

“given relevant mitigating evidence,” the Court did not

violate Murdaugh’s constitutional rights. Eddings, 455 U.S.

at 115.

3. Conflict of Interest Claim

Murdaugh argues that the prosecutor’s presentation of

mitigation evidence at the behest of the trial court violated his

Sixth and Fourteenth Amendment right to conflict-free

representation. Murdaugh argues that the prosecutor acted

simultaneously as counsel for the prosecution and the defense

when he presented a mitigation case on Murdaugh’s behalf.

A) Procedural Default

Murdaugh did not raise this claim in his direct appeal to

the Arizona Supreme Court. The post-conviction review

court subsequently held that the claim was precluded under

Arizona Rule of Criminal Procedure 32.2(a)(3), which

forecloses post-conviction relief on claims that are waived “at

trial, on appeal, or in any previous collateral proceeding.”

Murdaugh’s claim is not procedurally defaulted because

he did not violate a state procedural rule. Arizona courts treat

conflict of interest claims as a species of ineffective

assistance of counsel claims. See, e.g., State v. Jenkins,

715 P.2d 716, 718–19 (Ariz. 1986) (en banc). And Arizona

law only permits defendants to bring ineffective assistance of

counsel claims in Rule 32 post-conviction review
40 MURDAUGH V. RYAN

proceedings. See, e.g., State ex rel. Thomas v. Rayes,

153 P.3d 1040, 1044 (Ariz. 2007) (en banc). Hence,

Murdaugh’s failure to raise this claim on direct appeal does

not bar federal review. See Lee v. Kemna, 534 U.S. 362, 376

(2002).

B) Analysis

A defendant’s Sixth Amendment right to effective

assistance of counsel “includes the entitlement to

representation that is free from conflicts of interest.” United

States v. Wells, 394 F.3d 725, 733 (9th Cir. 2005). To

establish a violation of this right, a defendant “must

demonstrate that an actual conflict of interest adversely

affected his lawyer’s performance.” Id. (quoting Cuyler v.

Sullivan, 446 U.S. 335, 348 (1980)).

Murdaugh cannot show that his counsel had a conflict of

interest. Murdaugh’s attorney did not present any evidence

in mitigation, because Murdaugh did not let him. The

prosecutor was not transmuted into defense counsel when, at

the trial judge’s request, he presented a mitigation case on

Murdaugh’s behalf, any more than a prosecutor becomes a

defense attorney when he undertakes other acts favorable to

the defendant’s interests, such as disclosing material evidence

or advocating a downward sentencing departure.

Arizona law does not require the prosecution to confine

its presentation to matters inimical to the defendant: “At the

penalty phase of the sentencing proceeding . . . the

prosecution or the defendant may present any information

that is relevant to any of the mitigating circumstances

included in subsection G of this section . . . .” Ariz. Rev.

Stat. 13-703(C). In presenting a case in mitigation, then,
MURDAUGH V. RYAN 41

Murdaugh’s prosecutor was not even acting outside his

remit—much less acting as de jure defense counsel.

Because the prosecutor never represented Murdaugh, the

prosecutor’s presentation of the mitigation case did not

violate Murduagh’s right to conflict-free representation.

Murdaugh’s derivative claims that his trial and appellate

counsel were ineffective for failing to raise the conflict of

interest claim are equally meritless. See Boag v. Raines,

769 F.2d 1341, 1344 (9th Cir. 1985).

4. Claims Concerning Murdaugh’s Guilty Pleas

Murdaugh contends that his guilty pleas were not

knowing, intelligent, and voluntary because (1) counsel was

ineffective in representing Murdaugh leading up to and

during his guilty plea, and (2) the Ring II decision

undermined the voluntariness of Murdaugh’s guilty pleas.

Neither of these claims has merit.

First, the record does not support Murdaugh’s contention

that counsel was deficient. Murdaugh argues counsel was

ineffective because (1) counsel failed to provide “background

information” to the evaluating doctors in preparation for the

Rule 11 evaluation; (2) he had “excessively limited access”

to his counsel; (3) trial counsel failed to explain the

advantages, disadvantages, and potential consequences of the

plea agreement and instead sent the fact investigator to

discuss the terms of the plea with Murdaugh; and (4) counsel

promised Murdaugh an x-ray to prove there was no tracking

chip in Murdaugh’s head in order to convince Murdaugh to

plead guilty. The record does not show, however, that any

deficiencies in counsel’s performance were “so serious that

counsel was not functioning as the ‘counsel’ guaranteed the
42 MURDAUGH V. RYAN

defendant by the Sixth Amendment.” Strickland v.

Washington, 466 U.S. 668, 687 (1984).

Second, the Arizona Supreme Court did not unreasonably

apply the law or the facts in denying Murdaugh’s claim that

the Ring II decision undermined the voluntariness of his

guilty pleas. Nothing in the record indicates that Murdaugh’s

decision to plead guilty was influenced by whether a judge or

a jury would decide his sentence. And while it is true that the

Supreme Court held that the “new rule” of Ring applied to

criminal cases still pending on direct review, see Schriro v.

Summerlin, 542 U.S. 348, 351 (2004), the mere fact that a

new rule may affect a defendant’s trial rights does not

necessarily undermine the voluntariness of the defendant’s

plea, see Brady v. United States, 397 U.S. 742, 756–57

(1970). Accordingly, the Arizona Supreme Court’s denial of

Murdaugh’s claim was not unreasonable.

5. Competence Claims

Murdaugh also raises various claims concerning his

competence to waive the presentation of mitigating evidence.

Specifically, Murdaugh contends that he was incompetent to

waive mitigation, that the trial court made an inadequate

determination of his competence to waive mitigation, that

trial counsel erred in handling the mitigation waiver, and that

appellate counsel failed to raise all of the claims related to

this issue on direct appeal. Having granted relief on Claim 1,

we reserve any decision on these competence issues.

IV. Conclusion

Because we reverse the denial of relief on Murdaugh’s

Ring claim, we need not reach the claims concerning
MURDAUGH V. RYAN 43

Murdaugh’s competence to waive the presentation of

mitigating evidence. We otherwise affirm the district court

and remand with instructions to grant the petition unless the

state conducts a new sentencing hearing within a reasonable

period of time. Cf. Jennings v. Woodford, 290 F.3d 1006,

1020 (9th Cir. 2002).

REVERSED in part, AFFIRMED in part, and

REMANDED.