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

- cv

00039

- 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 Miller2 L EE V

. T HORNELL

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 “fail ed 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.L EE V

. T HORNELL 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

pre senting new evidence on the merits of such claims; if section 2254(e) applies and the prisoner cannot satisfy its stringent requirements, a federal court ma y 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 t he 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 bee n 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 transc ript 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 L ee guilty. Even if Lee could show Politi’s conduct4 L EE V

. T HORNELL

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 fe deral 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 cou rt. 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 st ate 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 f actual 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 o r 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 fail ing 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. TheL EE V

. T HORNELL 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 pr isoner under sentence of death, appeals the district court’s denial of his petition for a
writ of habeas corpus

. H e 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 his6 L EE V

. T HORNELL

claims , Lee sought to int roduce evidence that he did not present in state court. But w ith 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 tail pipe and the
other in the trunk. B ut t he attempt failed when Anderson pushed open the trunk and let out the fumes

. As Lee and Thomspon argue d 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 t he belt broke, Lee told Thompson to get a rock. A s Lee continued to wrestle with Anderson, Thompson struck Anderson o n the head with theL EE V

. T HORNELL 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.

A n 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 testif y 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 Garc í a

- Bu ñuel, a forensic psychiatrist, examine

Lee. Dr. Garc í a

- Buñuel did so and prepared a written report

. At the hearing, the prosecution presented no witnesses and
relied on the evidence presented at t rial. The defense also presented no witnesses, but it introduced Dr. Garc í a

Buñuel’s report, copies of Lee’s high

- school records, and a
letter from Lee’s mother in which she asked that his life be8 L EE V

. T HORNELL

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 four

day 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 deficientl y

— 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 w hen 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.” T o persuade Lee to accept the offer, Politi said

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

a s 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 suchL EE V

. T HORNELL 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 f urther concluded that Politi had not provided ineffective assistance at the aggravation

mitigation hearing . The court explain ed 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 mitigati ng 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 recall ed Lee ’s telling him that he was at the crime

scene. The district court declined to consider th e transcript
because Lee failed to present it in state court, “despite the fact that it was in the defense file and available to [ him ].”

A fter a review of the state

- court record, the district court10 L EE V

. T HORNELL

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 hav e been reasonable for counsel to discount this assertion given [Lee’s] conflicting
storie s.” 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, social

history 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
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). Because the word “failed” suggests “some omission, fault, or negligence on the part of the person who has failed to doL EE V

. T HORNELL 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, 43 1

– 3 2 (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

– 4 0. 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 mitigat ing evidence. The
district court noted that Politi had submitted a memorandum arguing against the State’s alleged aggravators and identifying mitigating circumstances and tha t 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 conclude d 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

. C laims12 L EE V

. T HORNELL

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). F ederal

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 o f a claim. Id. at 75 2

– 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). WeL EE V

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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

conc luded 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, w e remanded this case for
the district court to re consider Lee’s claims

. The district

court again denied relief

, and Lee again appealed

. After the appeal was fully briefed, n ew 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 C ourt held that if14 L EE V

. T HORNELL

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 theL EE V

. T HORNELL 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,

o btaining 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

, 59 2 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. 2 021).

When both the Strickland and the AEDPA standard s “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 b e erroneous “beyond any possibility for fairminded disagreement.” Id. at 103.16 L EE V

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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.

A lthough 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 , h e 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.

I t was Lee, not Politi, who was opposed to accepting a plea agreement or presenting any defense other than one denying all involvement . Politi e xplained 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’sL EE V

. T HORNELL 17

efforts to ensure that he understood the consequences of his
decision

.
B ecause 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.” I

d. 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 (198 7 ); 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. Th e factual premise of that argument is
flawed because the record does not show that Politi knew the
alibi to be false . A t a minimum, the state court’s rejection of

Lee ’s a ssertion 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 L EE V

. T HORNELL

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 attend ed by Politi, Lee, and the prosecutor . The notes stated that Lee “claims Anderson was murdered by [Thompson] but admits he was present.” But th e 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 th e 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 con fessed 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

. N othing in the notes or the diary entry prove s 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,L EE V

. T HORNELL 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).

B efore the district court, Lee claimed that a 1992 transcript of an interview of Lee’s father by the p rosecu tor

prove d 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 th e 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 discovered20 L EE V

. T HORNELL

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 [th e] evidence on the merits

. ” Ramirez

, 596 U.S. at 389. The district court therefore properly refused to consider the transcript.

Finally, e ven if Lee could show that Politi’s conduct “fell below an objective standard of reasonableness

, ” Strickland

, 466 U.S. at 6 88

, 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 weig ht 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. I n evaluating that claim , a threshold issueL EE V

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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 c laim.” 28 U.S.C. § 2254(e)(2).

B efore the district court , Lee a rgued 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 about

face. He now a rgues 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 ar gument

, 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 his22 L EE V

. T HORNELL

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 a n 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. A nd 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 d enying reconsideration of the order denying an additional investigator

, the court explain ed
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, 7 58 (5th Cir. 2000) ( explaining that “ [ m ] ere requests for evidentiary hearings will not suffice” to demonstrate diligence when a petitioner fail s 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 .” AllL EE V

. T HORNELL 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 subsequ ent 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.”

“ A ttorney error that does not violate the Constitutio n ”

— 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 75 3

– 5 4 (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 therefore24 L EE V

. T HORNELL

“ ‘ 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 qualif ied 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.

T he state court found that Politi conducted a reasonable mitigation investigation and that the scope o f his investigation was appropriate

. T he 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 ofL EE V

. T HORNELL 25

Lee’s exposure to toxic chemicals

. It is true that there were additional family members , friends, and acquaintances
who m 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

une xplored

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

We also do not find that Politi was deficient in his presentation of mitigati ng 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
education al , employment, and health histories

. I t 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.
Garc í a

- Bu ñ uel ( 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 acceptable26 L EE V

. T HORNELL

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 mitigati ng 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.