FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DARREL ESTON LEE, 

Petitioner-Appellant, 

 v. 

RYAN THORNELL, 

Respondent-Appellee.

No. 10-99022 

D.C. No. 2:04-cv00039-JJT

OPINION

Appeal from the United States District Court

for the District of Arizona

John J. Tuchi, District Judge, Presiding

Argued and Submitted September 19, 2023

San Francisco, California

Filed July 24, 2024

Before: William A. Fletcher, Eric D. Miller, and Lawrence 

VanDyke, Circuit Judges.

Opinion by Judge Miller
2 LEE V. THORNELL

SUMMARY*

Habeas Corpus / Death Penalty

The panel affirmed the district court’s denial of Darrell 

Lee’s federal habeas petition in which Lee—an Arizona 

prisoner sentenced to death following his conviction for 

murder and other offenses—contended that his trial counsel 

was ineffective in allowing him to testify falsely and in 

failing to present mitigating evidence. 

In support of his claims, Lee sought to introduce 

evidence that he did not present in state court. 

Under the Antiterrorism and Effective Death Penalty Act 

of 1996 (AEDPA), if an applicant for federal habeas relief 

“has failed to develop the factual basis of a claim in State 

court proceedings, the court shall not hold an evidentiary 

hearing on the claim unless the applicant” can show (A) that 

the claim relies either on a new rule of constitutional law 

made retroactive by the Supreme Court or on “a factual 

predicate that could not have been previously discovered 

through the exercise of due diligence” and (B) that “the facts 

underlying the claim would be sufficient to establish by clear 

and convincing evidence that but for constitutional error, no 

reasonable factfinder would have found the applicant 

guilty.” 28 U.S.C. § 2254(e). A habeas petitioner has “failed 

to develop the factual basis of a claim,” within the meaning 

of section 2254(e), only if “there is lack of diligence, or some 

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

been prepared by court staff for the convenience of the reader.
LEE V. THORNELL 3

greater fault, attributable to the prisoner or the prisoner’s 

counsel.” 

In Shinn v. Ramirez, 596 U.S. 366 (2022), the Supreme 

Court clarified that although Martinez v. Ryan, 566 U.S. 1 

(2012), allows postconviction counsel’s ineffectiveness to 

excuse the procedural default of certain claims of ineffective 

assistance of trial counsel, it does not permit a habeas 

petitioner to avoid the requirements of section 2254(e) when 

presenting new evidence on the merits of such claims; if 

section 2254(e) applies and the prisoner cannot satisfy its 

stringent requirements, a federal court may not hold an 

evidentiary hearing—or otherwise consider new evidence—

to assess cause and prejudice under Martinez. 

The panel held that the state court reasonably rejected 

Lee’s claim that his trial counsel, Stephen Politi, was 

ineffective because he allowed Lee to testify to an alibi that 

Politi knew to be false. The factual premise of that argument 

is flawed because the record does not show that Politi knew 

the alibi to be false. At a minimum, the state court’s rejection 

of Lee’s assertion that he “confessed to the crime of murder 

to Mr. Politi” was not an unreasonable determination of the 

facts in light of the evidence presented in the state court 

proceeding. In any event, even if Lee had told Politi that he 

was at the crime scene, it would have been reasonable for 

Politi to discount that statement given Lee’s conflicting 

stories. Under section 2254(e)(2), the district court properly 

refused to consider a transcript of an interview of Lee’s 

father that Lee first presented in federal court. The transcript 

is not a factual predicate that could not have been previously 

discovered through the exercise of due diligence, and does 

not establish by clear and convincing evidence that but for 

any constitutional error, no reasonable factfinder would have 

found Lee guilty. Even if Lee could show Politi’s conduct 
4 LEE V. THORNELL

fell below an objective standard of reasonableness, he cannot 

show that he was prejudiced by it. 

Regarding Lee’s claim that Politi was ineffective in 

failing to investigate and present mitigating evidence to the 

sentencing court, the panel addressed the threshold issue 

whether to consider additional evidence that Lee presented 

for the first time in federal court. Following the Supreme 

Court’s decision in Ramirez, Lee argued that section 2254(e) 

does not bar an evidentiary hearing in federal court because 

postconviction counsel was diligent and did not fail to 

develop the evidentiary record in state court. Assuming 

without deciding that Lee did not forfeit this argument, or 

alternatively, that this court may excuse his forfeiture, the 

panel concluded that the argument fails on the merits. 

Because Lee failed to develop the factual basis of his claim 

in state court proceedings, he would be entitled to an 

evidentiary hearing only if he qualified for section 

2254(e)(2)’s exceptions. The panel concluded that Lee does 

not. Lee’s claim does not rely on “a new rule of 

constitutional law.” Nor does it rely on “a factual predicate 

that could not have been previously discovered through the 

exercise of due diligence.” To the contrary, the evidence that 

Lee proffered to the district court is evidence that could have 

been discovered by his state postconviction counsel or his 

state investigator. 

Without an evidentiary hearing, the panel’s review was 

limited to the record presented to the state court. Based on 

that record presented to the state court, the panel held that 

the state court’s rejection of Lee’s claim that Politi was 

ineffective in failing to investigate and present mitigating 

evidence to the sentencing court was not objectively 

unreasonable. The panel’s review of the record found no 

“powerful” mitigating evidence that was unexplored. The 
LEE V. THORNELL 5

panel also did not find that Politi was deficient in his 

presentation of mitigating or evidence, and concluded that 

Lee could not show prejudice in any event.

COUNSEL

Timothy M. Gabrielsen (argued), Assistant Federal Public 

Defender; Jon M. Sands, Federal Public Defender, District 

of Arizona, Federal Public Defender's Office, Tucson, 

Arizona; Stephen E. Eberhardt, Law Offices of Stephen E. 

Eberhardt, Tinley Park, Illinois; for Petitioner-Appellant.

Laura P. Chiasson (argued), Assistant Attorney General, 

Capital Litigation Section; Lacy Stover Gard, Chief 

Counsel; Jeffrey L. Sparks, Deputy Solicitor General, 

Section Chief of Capital Litigation; Mark Brnovich, Former 

Attorney General; Kristin K. Mayes, Attorney General; 

Office of the Arizona Attorney General, Tucson, Arizona; 

Jim Nielsen, Assistant Attorney General, Office of the 

Arizona Attorney General, Phoenix, Arizona; for 

Respondent-Appellee.

OPINION

MILLER, Circuit Judge:

Darrel Eston Lee, an Arizona prisoner under sentence of 

death, appeals the district court’s denial of his petition for a 

writ of habeas corpus. He contends that his trial counsel was 

ineffective in allowing him to testify falsely and in failing to 

investigate and present mitigating evidence. In support of his 
6 LEE V. THORNELL

claims, Lee sought to introduce evidence that he did not 

present in state court. But with limited exceptions, a federal 

court may not hold an evidentiary hearing when a habeas 

petitioner has failed to develop the factual basis for his 

claims in state court. The district court therefore correctly 

declined to consider Lee’s new evidence and, based on the 

state-court record, correctly concluded that the state court’s 

rejection of his claims was reasonable. We affirm.

I

On December 5, 1991, Lee and a companion, Karen 

Thompson, approached John Calvin Anderson in Phoenix

and asked him for a ride. Once in the car, Lee pretended to 

be armed and forced Anderson to drive to an ATM, where

Lee and Thompson took Anderson’s wallet and used his card

to get money for drugs. They then drove toward Tucson. As 

Anderson pleaded for his life, Lee and Thompson bound his

hands and feet and left him in a ditch on the side of the road.

Thompson had second thoughts about leaving Anderson, so

she and Lee returned and placed him in the trunk of the car. 

They drove back to Phoenix and then toward California, all 

the while with Anderson in the trunk. 

Lee and Thompson ultimately decided to kill Anderson. 

Lee decided that they should asphyxiate Anderson with car 

exhaust by placing one end of a hose in the tailpipe and the 

other in the trunk. But the attempt failed when Anderson 

pushed open the trunk and let out the fumes. As Lee and 

Thomspon argued about what to do next, Anderson escaped 

from the trunk and began to flee. Lee chased Anderson and 

wrestled with him, and Thompson brought Lee a belt with 

which to strangle Anderson. When the belt broke, Lee told

Thompson to get a rock. As Lee continued to wrestle with

Anderson, Thompson struck Anderson on the head with the
LEE V. THORNELL 7

rock, killing him. Lee and Thompson put Anderson’s body 

in the trunk and drove to Tucson to buy a shovel, which they 

used to bury Anderson in a shallow grave outside the city.

An Arizona grand jury indicted Lee and Thompson on 

one count each of first-degree murder, kidnapping, theft, 

armed robbery, and credit-card theft. Thompson pleaded 

guilty to first-degree murder and armed robbery and agreed 

to testify against Lee. The State offered Lee a plea agreement 

under which the State would not pursue the death penalty. 

Lee first accepted the offer, then rejected it and proceeded to 

trial. At trial, Thompson testified that Lee was with her and 

assisted with Anderson’s kidnapping and murder. Lee, 

however, testified that he was not present at the scene of the 

murder and was not with Thompson at the time.

The jury found Lee guilty on all counts. At the time of 

Lee’s trial, Arizona law required the trial judge to make 

findings relevant to capital punishment and to determine the 

appropriate sentence. See Ring v. Arizona, 536 U.S. 584, 609

(2002) (holding that the Sixth Amendment requires that a 

jury determine the existence of facts making a defendant 

eligible for capital punishment); Schriro v. Summerlin, 542 

U.S. 348, 358 (2004) (holding that Ring does not apply 

retroactively to cases already final on direct review). The 

judge therefore held an aggravation-mitigation hearing.

Before the hearing, the defense requested that Dr. 

Leonardo García-Buñuel, a forensic psychiatrist, examine 

Lee. Dr. García-Buñuel did so and prepared a written report. 

At the hearing, the prosecution presented no witnesses and

relied on the evidence presented at trial. The defense also 

presented no witnesses, but it introduced Dr. GarcíaBuñuel’s report, copies of Lee’s high-school records, and a 

letter from Lee’s mother in which she asked that his life be 
8 LEE V. THORNELL

spared. The judge sentenced Lee to death. On direct appeal, 

the Arizona Supreme Court affirmed. State v. Lee, 917 P.2d 

692, 703 (Ariz. 1996).

Lee pursued state postconviction relief. As relevant here, 

he argued that his trial counsel, Stephen Politi, had provided 

ineffective assistance in two different ways: first, by

allowing him to present an alibi defense, and, second, by

failing to investigate and present mitigating evidence at 

sentencing. The state postconviction relief court held a fourday evidentiary hearing. Lee presented testimony from

several witnesses, including Politi, Lee’s appellate counsel, 

the prosecutor, the prosecution’s lead detective, Lee’s

mother, a mitigation specialist, an expert on ineffective 

assistance of counsel, and two psychiatric experts. 

Lee asserted that Politi had acted unethically—and 

therefore performed deficiently—by presenting an alibi that 

Politi knew to be false. Although Lee did not testify at the 

postconviction relief hearing, he submitted an affidavit in 

which he alleged that “[d]uring one of our first in-depth 

meetings, early on in the case, I told Mr. Politi about my 

involvement in this case.” Lee claimed that he was 

prejudiced by Politi’s conduct because the false alibi caused 

the sentencing judge to discount his remorse as a mitigating 

factor. 

For his part, Politi testified that when the prosecution 

offered a plea agreement, he had “advised [Lee] very 

strongly to take the deal” because it “was the best that I could 

do for him.” To persuade Lee to accept the offer, Politi said,

he had enlisted the support of his supervisor, Michael Burke, 

as well as Lee’s parents. Lee accepted the deal but then 

changed his mind, opting to go to trial and pursue an alibi 

defense. Politi and Burke both testified that Lee hoped such 
LEE V. THORNELL 9

a defense would end with a full acquittal. As Politi 

explained, “the only acceptable result as far as [Lee] was 

concerned was that . . . he would go to trial, be found not 

guilty on all counts, and then walk away.” Politi also 

suggested that Lee had not confessed to him.

The state postconviction court denied relief. As to the 

claim based on the alibi, the court stated that it could not

“conclude that Mr. Lee confessed the crime of murder to Mr. 

Politi or that Mr. Politi acted unethically.” The court also 

determined that even if Politi had acted unethically, there 

was no prejudice to Lee because “Lee’s remorse was argued 

to the judge at sentencing and the judge actually found that 

as mitigating.” The court further concluded that Politi had 

not provided ineffective assistance at the aggravationmitigation hearing. The court explained that Politi “did 

search for mitigation,” including by talking to Lee about his 

background, talking to Lee’s family, reviewing Lee’s 

medical and school records, and hiring a doctor to examine 

Lee. The court noted that Lee had identified no other 

evidence “that Politi could have presented.” Ultimately, the 

court concluded, the lack of mitigating evidence “was due 

more to the fact that there was none, rather than to Politi’s 

lassitude or incompetence.” The Arizona Supreme Court 

summarily denied review.

Lee then petitioned for a writ of habeas corpus in federal 

court. The district court denied the petition. To support his

claim based on the alibi, Lee proffered a 1992 transcript of 

the prosecutor’s interview of his father, in which the 

prosecutor recalled Lee’s telling him that he was at the crime 

scene. The district court declined to consider the transcript

because Lee failed to present it in state court, “despite the 

fact that it was in the defense file and available to [him].”

After a review of the state-court record, the district court 
10 LEE V. THORNELL

concluded that the state court’s “findings [were] not 

unreasonable.” The district court noted that it was unclear 

whether Lee told Politi that he was present during the crime, 

and that even if he had, “it would have been reasonable for 

counsel to discount this assertion given [Lee’s] conflicting 

stories.” The court also observed that Lee’s “own expert 

testified that counsel’s obligations with respect to a client 

whom an attorney suspects is not truthful are not always 

clear; thus it was not outside the wide range of professional 

assistance for Politi to continue his representation after [Lee]

insisted on pursuing an alibi defense.”

Lee sought an evidentiary hearing and expansion of the 

record to support his claim that Politi should have gathered 

additional mitigating evidence. Specifically, he sought to 

introduce declarations from various family members, socialhistory records, prison records from an earlier period of 

incarceration, medical records, and a declaration from his 

trial investigator.

Under the Antiterrorism and Effective Death Penalty Act 

of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, if 

an applicant for federal habeas relief “has failed to develop 

the factual basis of a claim in State court proceedings, the 

court shall not hold an evidentiary hearing on the claim 

unlessthe applicant” can show (A) that the claim relies either 

on a new rule of constitutional law made retroactive by the 

Supreme Court or on “a factual predicate that could not have 

been previously discovered through the exercise of due 

diligence” and (B) that “the facts underlying the claim would 

be sufficient to establish by clear and convincing evidence 

that but for constitutional error, no reasonable factfinder 

would have found the applicant guilty.” 28 U.S.C. § 2254(e). 

Because the word “failed” suggests “some omission, fault, 

or negligence on the part of the person who has failed to do 
LEE V. THORNELL 11

something,” a habeas petitioner has “failed to develop the 

factual basis of a claim,” within the meaning of section 

2254(e), only if “there is lack of diligence, or some greater 

fault, attributable to the prisoner or the prisoner’s counsel.” 

Williams v. Taylor, 529 U.S. 420, 431–32 (2000).

Applying that standard, the district court found that 

Lee’s counsel in the state postconviction proceedings, 

Matthew Newman, had not acted diligently. The court 

explained that “omissions by counsel are in fact attributable 

to a habeas petitioner” and that Newman “was on notice 

regarding the evidence [Lee] now seeks to introduce,” so 

“his failure to introduce such evidence in state court triggers 

§ 2254(e).” See Williams, 529 U.S. at 432, 437–40. The 

district court therefore denied an evidentiary hearing.

Reviewing the record presented to the state 

postconviction relief court, the district court concluded that 

the state court reasonably determined that Politi was not 

deficient in his presentation of mitigating evidence. The 

district court noted that Politi had submitted a memorandum 

arguing against the State’s alleged aggravators and 

identifying mitigating circumstances and that he had 

presented an expert report, school records, and a letter from 

Lee’s mother. Because Lee’s social history was laid out in a 

presentence report prepared by the court’s probation 

department, the district court concluded that Politi’s decision 

not to present lay social-history witnesses was reasonable.

The district court also noted that Lee conceded that he was 

unable to show prejudice from Politi’s allegedly deficient 

performance.

Lee appealed. While the appeal was pending, the 

Supreme Court decided Martinez v. Ryan, 566 U.S. 1 (2012), 

which altered the rules governing procedural default. Claims 
12 LEE V. THORNELL

asserted in federal habeas proceedings are procedurally 

defaulted—and federal habeas relief is generally 

unavailable—“when a state court declined to address a 

prisoner’s federal claims because the prisoner had failed to 

meet a state procedural requirement.” Coleman v. 

Thompson, 501 U.S. 722, 729–30 (1991); see also 

Wainwright v. Sykes, 433 U.S. 72, 81, 87 (1977). Federal 

courts may consider the merits of procedurally defaulted 

claims only if the petitioner “can demonstrate cause for the 

default and actual prejudice as a result of the alleged 

violation of federal law, or demonstrate that failure to 

consider the claims will result in a fundamental miscarriage 

of justice.” Coleman, 501 U.S. at 750. Because there is no 

constitutional right to counsel in postconviction 

proceedings, ineffective assistance of counsel in those

proceedings does not establish cause for the procedural 

default of a claim. Id. at 752–53. In Martinez, however, the 

Supreme Court announced a narrow exception to the general 

rule: If a State requires that a claim of ineffective assistance 

of trial counsel be raised in a collateral-review proceeding 

rather than on direct appeal, procedural default will not bar 

federal habeas relief “if, in the initial-review collateral 

proceeding, there was no counsel or counsel in that 

proceeding was ineffective.” 566 U.S. at 17.

In the wake of Martinez, we decided Detrich v. Ryan, 

holding that “[f]or procedurally defaulted claims” of 

ineffective assistance of trial counsel “to which Martinez is 

applicable, the district court should allow discovery and hold 

an evidentiary hearing where appropriate to determine 

whether there was ‘cause’ under Martinez for the state-court 

procedural default and to determine, if the default is excused, 

whether” trial counsel in fact provided ineffective assistance. 

740 F.3d 1237, 1246 (9th Cir. 2013) (en banc). We 
LEE V. THORNELL 13

acknowledged that “a federal habeas court is ordinarily 

confined to the evidentiary record made in state court.” Id.

at 1247 (citing Cullen v. Pinholster, 563 U.S. 170 (2011)). 

But we concluded that that rule “does not prevent a district 

court from holding an evidentiary hearing in a Martinez

case.” Detrich, 740 F.3d at 1247.

Then, in Dickens v. Ryan, we held that section 2254(e)

“does not bar a hearing before the district court to allow a 

petitioner to show ‘cause’ under Martinez.” 740 F.3d 1302, 

1321 (9th Cir. 2014) (en banc). We reasoned that “[a] federal 

court’s determination of whether a habeas petitioner has 

demonstrated cause and prejudice (so as to bring his case 

within Martinez’s judicially created exception to the 

judicially created procedural bar) is not the same as a hearing 

on a constitutional claim for habeas relief.” Id. We therefore 

concluded that “a petitioner, claiming that [postconviction 

relief] counsel’s ineffective assistance constituted ‘cause,’ 

may present evidence to demonstrate this point,” as well as 

“to demonstrate that there is ‘prejudice,’ that is that 

petitioner’s claim is ‘substantial’ under Martinez.” Id.

In response to those decisions, we remanded this case for 

the district court to reconsider Lee’s claims. The district 

court again denied relief, and Lee again appealed. After the 

appeal was fully briefed, new case law again intervened 

when the Supreme Court decided Shinn v. Ramirez, 596 U.S. 

366 (2022). In that case, the Court clarified that although 

Martinez allows postconviction counsel’s ineffectiveness to 

excuse the procedural default of certain claims of ineffective 

assistance of trial counsel, it does not permit a habeas 

petitioner to avoid the requirements of section 2254(e) when 

presenting new evidence on the merits of such claims. 

Ramirez, 596 U.S. at 371. Rejecting the reasoning of our 

post-Martinez decisions, the Ramirez Court held that if 
14 LEE V. THORNELL

section 2254(e) applies and “the prisoner cannot satisfy its 

‘stringent requirements,’ a federal court may not hold an 

evidentiary hearing—or otherwise consider new evidence—

to assess cause and prejudice under Martinez.” Id. at 389

(citation omitted) (quoting Williams, 529 U.S. at 433). At 

Lee’s request, we ordered the parties to file new briefs 

addressing Ramirez.

II

Both of the claims before us are based on the alleged 

ineffective assistance of trial counsel. In Strickland v. 

Washington, the Supreme Court prescribed a two-part test 

for evaluating such claims. 466 U.S. 668 (1984). First, “the 

defendant must show that counsel’s representation fell 

below an objective standard of reasonableness.” Id. at 688. 

Our evaluation of counsel’s performance “must be highly 

deferential,” to “eliminate the distorting effects of 

hindsight.” Id. at 689; see also Bell v. Cone, 535 U.S. 685, 

702 (2002). We must “indulge a strong presumption that 

counsel’s conduct falls within the wide range of reasonable 

professional assistance.” Strickland, 466 U.S. at 689.

Second, a defendant must show that counsel’s deficiency 

was prejudicial, meaning that “there is a reasonable 

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

result of the proceeding would have been different.” Id. at 

694.

“‘Surmounting Strickland’s high bar is never an easy 

task,’” and “[e]ven under de novo review, the standard for 

judging counsel’s representation is a most deferential one.” 

Harrington v. Richter, 562 U.S. 86, 105 (2011) (quoting 

Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). It is 

especially difficult in habeas proceedings because AEDPA

provides that when a claim has been “adjudicated on the 
LEE V. THORNELL 15

merits in State court,” a federal court may grant relief only 

if the state court’s decision “was contrary to, or involved an 

unreasonable application of, clearly established Federal law, 

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

“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). Under that standard, 

obtaining relief requires a petitioner to “show far more than 

that the state court’s decision was ‘merely wrong’ or ‘even 

clear error.’” Shinn v. Kayer, 592 U.S. 111, 118 (2020) (per 

curiam) (quoting Virginia v. LeBlanc, 582 U.S. 91, 94 (2017) 

(per curiam)). Instead, the petitioner must show “that the 

state court’s decision [was] so obviously wrong that its error 

lies ‘beyond any possibility for fairminded disagreement.’” 

Id. (quoting Richter, 562 U.S. at 103); see also Gibbs v. 

Covello, 996 F.3d 596, 603 (9th Cir. 2021).

When both the Strickland and the AEDPA standards

“apply in tandem,” Richter, 562 U.S. at 105, our review 

becomes “doubly deferential,” Knowles v. Mirzayance, 556 

U.S. 111, 123 (2009); see also Yarborough v. Gentry, 540 

U.S. 1, 6 (2003) (per curiam). In particular, we “must guard 

against the danger of equating unreasonableness under 

Strickland with unreasonableness under § 2254(d).” Richter, 

562 U.S. at 105. To evaluate deficiency in a case governed 

by AEDPA, we ask “whether there is any reasonable 

argument that counsel satisfied Strickland’s deferential 

standard.” Id. And even if we determine that counsel 

performed deficiently, we cannot say the defendant was 

prejudiced unless the state court’s contrary view would be 

erroneous “beyond any possibility for fairminded 

disagreement.” Id. at 103.
16 LEE V. THORNELL

Applying those principles, we review the district court’s 

decision de novo. Oliver v. Davis, 25 F.4th 1228, 1233 (9th 

Cir. 2022).

III

A

We begin by considering Lee’s claim that Politi was 

ineffective because he allowed Lee to testify to an alibi that 

Politi knew to be false. The state postconviction review court 

rejected that claim, and Lee has not shown that its decision 

was unreasonable.

Although the parties refer to Lee’s testimony as an “alibi 

defense,” Lee offered an alibi only in the most limited sense. 

At trial, Lee said that he was not with Thompson at the time 

of the murder, but he revealed where he was only in the 

vaguest of terms. Although one could infer from his account 

of the day of the murder that he claimed to be at a trailer park 

in Phoenix where he and Thompson had originally met, he 

did not elaborate on his whereabouts. Thus, Lee’s present 

objection to Politi’s decision to let him present an alibi 

defense is really an objection to Politi’s decision to let him 

deny involvement in Anderson’s murder.

It was Lee, not Politi, who was opposed to accepting a 

plea agreement or presenting any defense other than one 

denying all involvement. Politi explained that he and Burke 

did everything they could to convince Lee to accept the plea 

agreement, or failing that, to present a diminished-capacity 

defense. Lee refused. Politi testified that at one point Lee 

stated that “he would rather have the gas chamber” than 

accept any plea agreement. Lee does not argue that his 

choice was uninformed or challenge the adequacy of Politi’s 
LEE V. THORNELL 17

efforts to ensure that he understood the consequences of his 

decision.

Because a defendant does “not surrender control entirely 

to counsel,” Politi could not have admitted Lee’s guilt over 

his objections without violating Lee’s Sixth Amendment

rights. McCoy v. Louisiana, 584 U.S. 414, 421 (2018).

Rather, “a defendant has the right to insist that counsel 

refrain from admitting guilt, even when . . . confessing guilt 

offers the defendant the best chance to avoid the death 

penalty.” Id. at 417; see also Strickland, 466 U.S. at 691 

(“The reasonableness of counsel’s actions may be 

determined or substantially influenced by the defendant’s 

own statements or actions.”). Similarly, Lee errs in

suggesting that Politi should somehow have prevented him

from taking the stand. A defendant has a constitutional right 

to testify, and the choice of whether to exercise that right

belongs to the defendant, not to counsel. See Rock v. 

Arkansas, 483 U.S. 44, 53 (1987); Jones v. Barnes, 463 U.S. 

745, 751 (1983).

The thrust of Lee’s argument is that Politi behaved 

unethically in allowing Lee to testify that he was not 

involved in the murder because Lee had confessed his 

involvement to Politi, and therefore Politi knew that Lee’s 

testimony was false. The factual premise of that argument is 

flawed because the record does not show that Politi knew the 

alibi to be false. At a minimum, the state court’s rejection of 

Lee’s assertion that he “confessed the crime of murder to Mr. 

Politi” was not an “unreasonable determination of the facts 

in light of the evidence presented in the State court 

proceeding.” 28 U.S.C. § 2254(d)(2). Significantly, Politi 

attempted to track down individuals who could corroborate 

Lee’s story, and he directed investigators to pursue alibi-
18 LEE V. THORNELL

related leads that Lee provided—actions that would have 

made no sense had Politi known that the alibi was false.

Lee points to a set of notes from the prosecution’s 

investigator describing a plea-negotiation meeting attended 

by Politi, Lee, and the prosecutor. The notes stated that Lee 

“claims Anderson was murdered by [Thompson] but admits 

he was present.” But the investigator testified that he was not 

present during the meeting, and the prosecutor testified that 

he had no specific recollection of the meeting. Politi himself 

testified that he did not remember what Lee said at the

meeting.

Lee also points to an entry in Politi’s trial diary in which

Politi wrote that he “told [Lee] of my conversation with his 

father this afternoon and the inevitable ethical dilemma I 

face as regards to the alibi defense” and that he “[d]iscussed 

[the] problem with Mike Burke, and the likely necessity of 

filing a motion to withdraw based upon an irreconcilable 

conflict of interest.” Politi testified, however, that he could 

not recall what prompted him to write that entry. And Burke 

testified that Lee never confessed his involvement in the 

crime to him, and that the “ethical dilemma” described in the 

diary may have referred to information provided by Lee’s 

father that led Politi to question Lee’s alibi. Nothing in the 

notes or the diary entry proves that Lee confessed.

In any event, as the district court noted, even if Lee had, 

at some point before trial, told Politi that he was at the crime 

scene, it would have been reasonable for Politi to discount 

that statement “given [Lee]’s conflicting stories.” At most, 

Politi had reason to doubt the veracity of Lee’s denial of 

involvement in the murder. As Lee’s own expert explained, 

“it’s a very difficult question for a defense attorney to really 

ascertain when . . . the [client] is actually lying.” Of course, 
LEE V. THORNELL 19

an attorney should attempt to dissuade a client from 

committing perjury, and if the client “informs counsel that 

he will perjure himself on the stand,” it is appropriate for the 

attorney to withdraw from the representation. Nix v. 

Whiteside, 475 U.S. 157, 166, 170–71 (1986). But Lee has 

identified no rule that would have required Politi’s 

withdrawal in the circumstances of this case. Rather, as the 

commentary to the Arizona Rules of Professional Conduct 

explained at the time, the duty of “an advocate for a 

criminally accused” to disclose potentially perjurious 

testimony “has been intensely debated,” and “[w]hile it is 

agreed that the lawyer should seek to persuade the client to 

refrain from perjurious testimony, there has been dispute 

concerning the lawyer’s duty when that persuasion fails.” 

Ariz. R. Prof. Conduct 3.3 cmt. (1992). It follows that, as the 

district court reasoned, “it was not outside the wide range of 

professional assistance for Politi to continue his 

representation” despite Lee’s insistence on denying 

involvement in the murder. And at a minimum, the state 

court’s conclusion to that effect was not an unreasonable 

application of Strickland. 28 U.S.C. § 2254(d)(1).

Before the district court, Lee claimed that a 1992 

transcript of an interview of Lee’s father by the prosecutor 

proved that Lee had confessed his participation in the murder 

during plea negotiations at which Politi was present. That

claim suffers from the same flaw we have already discussed: 

Even if Lee did confess, Politi might reasonably have 

believed Lee’s statements denying involvement and 

disbelieved his confession. More importantly, Lee first 

presented the evidence in federal court, even though it was 

in the defense file and available to Lee during state court 

proceedings. The transcript is therefore not “a factual 

predicate that could not have been previously discovered 
20 LEE V. THORNELL

through the exercise of due diligence.” 28 U.S.C. 

§ 2254(e)(2)(A)(ii). Nor does it “establish by clear and 

convincing evidence that but for the constitutional error, no 

reasonable factfinder would have found [Lee] guilty of the 

underlying offense.” Id. § 2254(e)(2)(B). Because the 

requirements of section 2254(e) are not met, “a federal court 

cannot . . . consider [the] evidence on the merits.” Ramirez, 

596 U.S. at 389. The district court therefore properly refused 

to consider the transcript.

Finally, even if Lee could show that Politi’s conduct “fell 

below an objective standard of reasonableness,” Strickland, 

466 U.S. at 688, he cannot show that he was prejudiced by 

it. Lee contends that he suffered prejudice at sentencing 

because his trial testimony impaired his ability to 

demonstrate remorse, which would have been a basis for 

mitigation. But Lee did plead remorse to the sentencing 

court, and that court found it to be mitigating. To the extent 

the sentencing court declined to give greater weight to

evidence of Lee’s remorse, it explained that it did so because 

Lee’s “first reported demonstration of remorse [came] long 

after the killing.” No change in trial strategy could have 

altered that fact. Notably, the expressions of remorse that 

Lee now cites as examples of his contrition all came after

sentencing. The state postconviction relief court therefore 

reasonably determined that Lee did not establish “a 

reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been 

different.” Strickland, 466 U.S. at 694.

B

We now turn to Lee’s claim that Politi was ineffective in 

failing to investigate and present mitigating evidence to the 

sentencing court. In evaluating that claim, a threshold issue
LEE V. THORNELL 21

is whether to consider additional evidence that Lee presented 

for the first time in federal court. As we have already 

explained, section 2254(e) provides that with limited 

exceptions, “[i]f the applicant has failed to develop the 

factual basis of a claim in State court proceedings, the court 

shall not hold an evidentiary hearing on the claim.” 28 

U.S.C. § 2254(e)(2). 

Before the district court, Lee argued that Newman, his 

postconviction counsel, “was ineffective in not investigating 

and presenting the mitigating evidence which existed,” and 

that the State had “appointed incompetent counsel to 

represent him at his postconviction proceedings.” 

Advancing that argument was a reasonable strategy under 

our decisions in Detrich and Dickens because the 

ineffectiveness of postconviction counsel would have been a 

basis for obtaining an evidentiary hearing to develop Lee’s 

underlying claims of ineffective assistance of trial counsel.

Under Ramirez, however, it is now clear that the 

ineffectiveness of postconviction counsel does not allow a 

petitioner to escape the requirements of section 2254(e). See

596 U.S. at 371. So, before this court, Lee has done an aboutface. He now argues that Newman was diligent, that he did 

not “fail[]” to develop the evidentiary record in state court, 

and that section 2254(e) thus does not bar an evidentiary 

hearing in federal court. The State argues that this new 

argument is forfeited. We assume without deciding that Lee 

did not forfeit the argument, or, alternatively, that we may 

excuse his forfeiture. We conclude that the argument fails on 

the merits.

In the state postconviction proceedings, Newman sought 

and was granted an evidentiary hearing. But the evidence he 

presented at that hearing was limited by the failure of his
22 LEE V. THORNELL

mitigation specialist, Mary Durand, to conduct an effective 

investigation. In an effort to show diligence, Lee points out 

that Newman requested continuances of the hearing and the 

appointment of an additional investigator. When Newman’s

motion to continue the hearing was denied, he asked the 

Arizona Supreme Court for special action to grant the 

continuance, which it did. And after the postconviction relief 

court refused to appoint another investigator to help Durand,

Newman sought reconsideration of that ruling.

By themselves, however, those actions are not sufficient 

to demonstrate diligence. In denying reconsideration of the 

order denying an additional investigator, the court explained

that Newman had “supplie[d] no more specifics than he did 

in the original motion—who, where, when, how much it will 

cost the state, how it is relevant.” Diligence would have 

entailed providing the information necessary to verify the 

need for an additional investigator. See Dowthitt v. Johnson, 

230 F.3d 733, 758 (5th Cir. 2000) (explaining that “[m]ere

requests for evidentiary hearings will not suffice” to 

demonstrate diligence when a petitioner fails to present 

affidavits he could easily have obtained).

For her part, Durand ultimately failed to complete her 

mitigation investigation before the postconviction 

evidentiary hearing. It is true that Durand was seriously ill 

and had many other cases to manage. But what matters is 

that Durand failed to complete her work, despite the 18-

month period during which she investigated and attempted

to gather evidence for the hearing. As a result, the defense 

postconviction psychiatrist, Dr. Barry Morenz, never 

received Durand’s social history of Lee. And Newman 

himself acknowledged that Dr. Morenz needed Lee’s social 

history to “complete his final meeting and evaluation.” All
LEE V. THORNELL 23

that Durand ultimately sent to Dr. Morenz were inscrutable

handwritten notes.

Lee insists that Durand’s lack of diligence “in no way 

detract[ed] from” Newman’s diligence. But even if Durand 

acted diligently and was prevented from completing her 

investigation by medical problems beyond her control, 

Newman had a duty to supervise her and take corrective 

action in response to her failures. Newman acknowledged 

this on the first day of the evidentiary hearing before the 

postconviction relief court, when he stated that the failure to 

investigate was “my fault. I accept responsibility, too. I 

should have stayed on top of Mary Durand better, and I 

didn’t.” In a declaration filed in the subsequent federal 

habeas proceedings, Newman admitted that he later became 

aware of the mitigating evidence that Lee’s federal habeas 

counsel went on to develop. That evidence, he explained, 

was “precisely the type of evidence I hoped to acquire with 

Ms. Durand’s assistance. At a minimum, I owed Mr. Lee a 

duty to perform an investigation that would have uncovered 

that evidence.” And he again (correctly) took responsibility 

for Durand’s failures. He also stated that he had promised 

Dr. Morenz a social history, “but I never delivered on that 

promise.”

“Attorney error that does not violate the Constitution”—

including attorney error in postconviction proceedings, 

where there is no constitutional right to counsel—“is 

attributed to the prisoner under ‘well-settled principles of 

agency law.’” Davila v. Davis, 582 U.S. 521, 528 (2017)

(quoting Coleman, 501 U.S. at 754); see also Coleman, 501 

U.S. at 753–54 (explaining that an attorney’s lack of 

diligence is attributable to a petitioner because the “attorney 

is the petitioner’s agent when acting, or failing to act, in 

furtherance of the litigation” and that the petitioner therefore 
24 LEE V. THORNELL

“‘bear[s] the risk of attorney error’” (quoting Murray v. 

Carrier, 477 U.S. 478, 488 (1986))). Newman was 

responsible for Durand’s failures, so her errors were his 

errors. Thus, Newman’s failure to properly oversee Durand 

is attributable to Lee.

We draw the same conclusion as the district court: Lee 

was not diligent in developing the factual basis of his claim

before the state court. Because Lee “failed to develop the 

factual basis of [his] claim in State court proceedings,” he 

would be entitled to an evidentiary hearing only if he 

qualified for section 2254(e)(2)’s exceptions. 28 U.S.C. 

§ 2254(e)(2). He does not. His claim does not rely on “a new 

rule of constitutional law.” Id. § 2254(e)(2)(A)(i). Nor does 

it rely on “a factual predicate that could not have been 

previously discovered through the exercise of due 

diligence.” Id. § 2254(e)(2)(A)(ii). To the contrary, the 

evidence that Lee proffered to the district court is evidence 

that could have been discovered by his state counsel or his 

state investigator.

Without an evidentiary hearing, we are limited to the 

record presented to the state court. Based on that record, the 

state court’s rejection of Lee’s Strickland claim was not

objectively unreasonable. 

The state court found that Politi conducted a reasonable 

mitigation investigation and that the scope of his

investigation was appropriate. The record developed at the 

postconviction relief hearing supports that finding. Politi 

ensured that Lee’s mental health was evaluated, that an 

investigator was appointed, that information was gathered 

from family members, and that social history records were 

collected. Politi also obtained Lee’s school, medical, and 

incarceration records. He even searched for any history of 
LEE V. THORNELL 25

Lee’s exposure to toxic chemicals. It is true that there were 

additional family members, friends, and acquaintances 

whom Politi could have interviewed, but Lee did not 

establish at the postconviction hearing that those interviews

would have uncovered new information. Indeed, “there 

comes a point at which evidence from more distant relatives 

can reasonably be expected to be only cumulative.” Bobby 

v. Van Hook, 558 U.S. 4, 11 (2009) (per curiam). We thus 

agree with the district court that “[t]his is not a case in which 

the defendant’s attorneys failed to act while potentially 

powerful mitigating evidence stared them in the face.” Id.

Rather, the “decision not to seek more” mitigating evidence 

was a decision that was “well within the range of 

professionally reasonable judgments.” Id. at 11–12 (quoting 

Strickland, 466 U.S. at 699). Our own review of the record 

reveals no “powerful” mitigating evidence that Politi left

unexplored. Wiggins v. Smith, 539 U.S. 510, 534 (2003). 

We also do not find that Politi was deficient in his 

presentation of mitigating evidence. Politi did, after all, 

submit a memorandum arguing against the State’s alleged 

aggravators, and he presented an expert medical report, 

school records, and a letter from Lee’s mother. The 

presentence report also set forth Lee’s social history and 

highlighted many relevant aspects of Lee’s life, such as his 

educational, employment, and health histories. It was thus

reasonable to not call lay social-history witnesses. And at the 

postconviction relief hearing, Politi explained his tactical 

decision not to call Lee’s parents (who had frequently and 

unhelpfully intervened in Politi’s investigation by insisting

that he interview witnesses from the trailer park), or Dr. 

García-Buñuel (who had himself told Politi that it would be 

unwise to call him). These are precisely the kinds of 

decisions that fall within the wide range of acceptable 
26 LEE V. THORNELL

conduct for counsel. See, e.g., Strickland, 466 U.S. at 689;

Cox v. Del Papa, 542 F.3d 669, 683–84 (9th Cir. 2008).

Nor could Lee show prejudice in any event. The 

prejudice analysis “requires an evaluation of the strength of 

all the evidence and a comparison of the weight of 

aggravating and mitigating factors.” Thornell v. Jones, 144 

S. Ct. 1302, 1314 (2024). But the postconviction relief court 

explained that Lee showed the court no additional evidence

that “Politi could have presented.” Ultimately, the court 

concluded, the absence of additional mitigating evidence 

“was due more to the fact that there was none, rather than to 

Politi’s lassitude or incompetence.” That conclusion was 

objectively reasonable.

AFFIRMED.