F OR P UBLICATION



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

S E A N B E R N A R D R U N N I N G E A G L E , Petitioner-Appellant

,

v.

C H A R L E S L

. R Y

A N , Director, Ariz ona Department of Corrections, R espondent-Appellee

. No. 07-99026

D.C. No. CV-98-01903-PGR

OPI NI ON

A ppeal from the United States District Court for the District of Ariz o na Paul G. Rosenblatt, Senior District J udg e, Presiding

Arg ued and Submitted F ebruary 10, 2016 Pasadena, California

F iled J une 10, 2016

B efore: Harry

Preg erson, Kim McL ane W a rdlaw, and Carlos T. B ea, Circuit J udg es.

Opinion by

J udg e W ardlawR U N N I N G E A G L E V

. R Y

A N 2

SUMMARY *

Habeas Corpus / Death P enalty

The panel affirmed the d istrict court’s denial, on limited remand, of claims of ineffective assistance of counsel broug ht in a habeas corpus petition in a capital case.

The d istrict court origi n a l ly denied the ineffective assistance c laims as procedurally bar r ed

. On appeal, the panel affirmed the distri ct court’s d enial of the h abeas petition but stay e d the court of appeals’ mandate and ordered

a limited remand to allow the district court to reconsider its prior ruling s in lig ht of Martinez v. Ryan
, 132 S. Ct. 1309 (2012), which announced a new equi t ab l e rule allowing a petitioner to show cause for the procedural default of c ertain ineffective assistance c laims. On limited remand, the district
court c oncluded that the p etitioner d id not show cause under Martinez , and thus did not ex cuse the procedural default.

To show cause u nder Ma rtinez
, a petitioner must demonstrate that the state sy stem in which he initially broug ht his ineffective assistanc e c l a ims required that they be raised in initial-review c ollateral p roceeding s, and did not permit the petitioner to raise them on direct appeal. He must also show that the attor n ey who represented him in post-conviction review procee d i n g s performed d e f iciently and thereby prejudiced his case u nder the standards of Strickland v

. W ashington

.

* T h is su m m ary co n stitu

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

co u rt staf

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

th e read er.R U N N I N G E A G L E V

. R Y

A N 3

The panel held that the district court erred in concluding
t h a t M artinez was inapplicable because, at the time of t h e petitioner’s direct ap p e al, Ariz ona allowed d efendants to bring ineffective assistance claims on direct appeal. The panel c oncluded that in f a ct , during the relevant period, Ariz ona did r equire petitioners to b ring ineffective assistance claims in initial-review collateral proceeding s, not ex pressly

, but by v i rt u e of the operation o f its procedural sy stem. Nonetheless, the petitioner f a i l e d to show that his postconviction r eview counsel performed deficiently and to his prejudice.

The panel affirmed the district court’s judg ment and order, and i t s c o ntinued denial o f the habeas petition. The panel lifted the stay of the mandate and ordered that it would issue in the reg ular course.

COUNSEL

J ennifer Y. G arcia (arg ued )

, Assistant F e deral Public Defender; J on M. Sands, F ederal Public Defender; A riz o na F ederal Public Defender’s Office, Phoenix

, Ariz o na, for Petitioner-Appellant.

J on G. Anderson ( a rg ued), Assistant Attorney General, Ca p ital L itig a tion Section; L acey Stover G a rd, Chief Counsel; Mark B rnovich, Attorney General; A riz o na A t t o rn e y G e n e r al ’ s O f fi ce , P h o e n i x , A r i z o n a , f o r Respondent-Appellee.R U N N I N G E A G L E V

. R Y

A N 4

OP INION

W A RDL AW , Circuit J udg e:

I n 1988, pe t i tioner Sean B ernard Running e ag le was convicted of two counts o f f i r s t deg ree murder in A riz o na sta t e c o u r t

. H e was sentenced to death in 1989, and the Ariz on a S upreme Court affirmed his conviction, sentence, and the denial of his state p etition for post-conviction relief. State v

. Runningeagle (

Runningeagle I)

, 859 P.2d 169 (Ariz

. 1993). Running eag le then petitioned for a fede r a l writ o f habeas corpus, which the district court denied. I n 2012, while Running eag le’s appeal of that de c ision was pending before
us, the Supreme Court decided M artinez v. Ryan
, 132 S. Ct. 1309 (2012). Martinez announced a n ew equi table rule that allows a petitioner to show c a use for the p rocedural default o f certain ineffective assistance of counsel (“I AC”) claims. W e affirmed the d istrict court’s denial o f R u n n i ng eag le’s petition, but also stay ed the mandate and ordered a limited remand to allow the district court to reconsider its prio r r u ling s that several o f Running eag le’s I A C c laims were procedurally defaulted in lig ht of Martin e z

. Runningeagle v

. Ryan ( Runningeagle II)

, 686 F .3d 758 (9th Cir. 2012). On remand, the district court conclude d t h a t Running eag le did not show

cause under M

artinez
, a nd thus did not ex cuse the procedural default of the I

AC claims. Running eag le appeals.

T o show cause under M artinez
, a petitioner mu s t demonstrate, inter alia

, that the state sy stem in which he initially broug ht his I AC claims requi re d t h at they b e raised in initial-review collateral p roceeding s, and did not permit the petitioner to raise them on d irect appeal. He must also show that the attorney who rep r esented him in post-conviction review (“PCR”) proce eding s performed d eficiently a ndR U N N I N G E A G L E V

. R Y

A N 5

thereby prejudiced his case under the standards of S trickland v. W ashington

, 466 U.S. 668 (1984).

W e hold that the district c ourt erred in c oncludin g t h at Martinez wa s i n a p plicable because, at the time o f Running eag le’s direct appeal, Ariz ona allowed defendants to bring I AC claims on direct appeal. To the contrary : during the relevant period, Ariz ona a ctually d id require petitioners
to b r i n g I AC claims in initial-review collateral proceeding s, not ex pressly

, but by virtue of the operation of its procedural
sy stem. See Trevino v. Thaler

, 133 S. Ct. 1911, 1915 (2013). The p roceeding s in this v ery case demonstrate the operation of Ariz o na’s requirement. Howev e r , R unning eag le fails to show that his PCR counsel performed deficien t l y a nd to his prejudice. His I AC claims therefo r e r e main in procedural default, and do not serve as a basis f or fed e r al h a

beas relief. W e affirm the district court’s denial of the petition.

I. F actual Background

W e ag ain 1 take the facts as recited by the A riz o na Supreme Court in its 1993 opinion:

I n the e a r l y morning o f D ecember 6, 1987, Running eag le, [ his cousin Corey ] Tilden, a nd their two friends Orva a nd Milford Antone,

were driving around Phoenix

. Running eag le wanted parts f

o r his c a r, so t he foursome stopped a t the D avis h o use, which had a c ar parked outside. Running eag le, Tilden a nd Orva g ot o ut o f the car, w hile Milford

1 Ru n n in g ea g le II

, 6 8 6 F .3 d at 7 6 3

– 6 4 (q u o ti n g R u n n in g ea g le I
, 8 5 9 P .2 d at 1 7 1

– 7 2 ); see a l so id

. at 7 6 3 n .1

.R U N N I N G E A G L E V

. R Y

A N 6

remained pas s e d out drunk in the back seat. Runn i n ge ag le u sed his larg e hunting knife to

remove two carburetors fr o m the Davis car. Orva put them and an air scoop in the trunk o f R u nning eag le’s car. Tilden and Running ea g l e also stole a floor jack and tool box

. Orva took a bicy cle from the open g arag e.

Herbert and J acqueline William s , an elderly couple, lived nex t door to the Davises. Mr. W i l l i a m s came out of his h ouse and told the
y oung men to leave or he w ould call the police. Orva returned to the car, but Running eag le and Tilden approached Mr. W illiams. Running eag le conceal e d his knife by his side. Til d e n carried a larg e , black flashlig ht. Running eag le t h e n beg an to tease and scare Mr. W illiams with the k n i fe. Mr. W illiams retreated a nd told Running eag le to put the knife a

w ay

. Mrs. W illiams then came out of the house and y elled at th e m

. Tilden confronted Mrs. W illiams, a r gued with her,

a n d then hit her o n the side of the head w i t h the f l a s hlig ht. Mr. W illiams told them to leave his wife alone, a

n d helped her back into the house. Running e ag le b r oke throug h the W illiams’ door with a tire iron, an d h e a nd Tilden barg ed in.

The noise awakened a n eig hbor, w h o heard Mrs. W i l liams cry

ing and the w ords “bring h i m i n ” spoken by a tall, y oung man he saw standing in the W illiams c arport. The neig hbor called “ 911
, ” but by the time theR U N N I N G E A G L E V

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polic e arrived, Mr. and Mrs. W illiams were dead. Mr. W illiams suffered several head injuries and five stab wounds, three of which

were fatal. Mrs. Will i a m s also suffered several head injuries, o ne of which fractu red her skull and w as possibly fatal, in addition to four stab wounds, three of which were fatal.

The police searched the W illiams home. The drawer in which Mrs. W illiams st ored her jew elry was open and some jewelry was missing

. T hey found an empty purse, blood drops and two bloody shoe p r int patterns. They discovered Running eag le’s palm print on the clothes dry er nex t to the bodies.

Running eag le discussed the c rimes on several occasions before h is arrest. He told his
g irlfriend that he had been in a fig ht with two people and h a d h i t them “full-force.” He showed her his car trunk full of the stolen property

. He showed the h ood sc o o p a nd

c arburetors to another friend. Tilden, too , spoke about the crimes and infor m ed Running eag le that an account of the burg lary

was on the radio and that “they g ot t h ere an hour after we left.”

W h en the defendants were a r rested, the police found, among other thing s, the Davis air
scoop with Running eag l e’s prints on it, two carburetors, the tool box

, Mrs. W illiam s’ wallet a nd c olleg e p in, a larg e black flashlig ht with Tilden’s prints o n i t, and the DavisR U N N I N G E A G L E V

. R Y

A N 8

b icy c le with Running eag le’s prints on the wheel rim. A Phoenix Police Department criminalist matched Runningeag le’s shoes with the bloody shoe p r ints found at the W illiams house, and also found that an inked print of Tilden’s shoes made a pattern similar to other shoe prints at the house.

Running eag le, Tilden, and Orva Antone were indicted on two counts of first deg ree murder, and one c ount each of f

irst deg ree burg lary o f

a residence, second d e gr e e burg lary of a residence, third deg ree burg lary of a car, theft of property valued b etween $50 0 and $1000, and theft o f p r operty valued between $250

an d $ 5 00. O rva A ntone pleaded g uilty to burg lary a

nd testified for the state at the joint trial.

After a five-week trial, Running eag le a nd Tilden were convicted on J uly 27, 1988. Running eag le was f

ound g uilty of two counts

o f first deg ree murder, two counts of theft

, and one count each o f firs t deg ree burg lary

, second deg ree burg lary

, and third degr e e burg la r y

. Tilden was convicted of the same charg es ex cept for third deg ree burg lary

. Runningeagle I

, 859 P.2d at 171–72.R U N N I N G E A G L E V

. R Y

A N 9

II. P rocedural Background

A. Sentencing and Special Verdict

B a l t a za r I n i g uez was appointed to represent Running ea g l e at trial and sentencing

. I nig uez g athered a total of 1 5 letters f r o m Running eag le’s family members and acquaintances

, which he submitted as mitig ation evidence. I nig uez also presented the direct testimony o f several witnesses on Running eag le’s behalf at evidentiary hearing s, and he

ex a mined or cross-ex amined sev e r al of Tilden’s witnesses, who were Running eag le’s family members or acquaintances, at these hearing s. 2

Ariz ona probation offi c e rs prepared two presentence reports ( “PSRs”) concerning Running e ag le, which contained information about his f

amily and social backg round, criminal history

, health, and use of alcohol and illic it substances. T h e s e r e p o r t s q u o t e d I n i gu e z , w h o v o u ch e d f o r Running eag le’s g ood character, stated that the murders were fueled by alcohol, and recommended lenie n c y

. I t does not appear from the record that I nig uez g athered o u tside information for the p r o b ation officers or disputed the
accuracy of the PSRs.

I nig uez successfully petitioned the court under A riz o na Rule of Criminal Pro c e dure 26.5 f or two mental health

2 A t th e f irst o f th ese h earin g s, Ru

n n in g eag le so u g h t th e ap p o in tm en t of

n ew co u n sel, an d stated th at In ig u ez w as “ in ef f ectiv e an d i n ef

f icien t.” In ig u ez m ov ed to w i th d raw , citin g th e “ b arrier” b etw een h im self an d h is clien t, an d R

u n n i n g eag le’ s lack o f co o peratio n

. T h e co u rt d en ie d th ese req u ests, an d stated t

h at Ru n n in g eag le w o u ld “ h av e an o p p o rtu n i ty to raise all o f th ese alleg atio n s b y

w ay o f P etitio n f or P ost- Co n v ictio n

Relief .”R U N N I N G E A G L E V

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A N 10

ex a minations of Running eag le. These ex aminations were conducted by Doctors M.B

. B ay less a n d F rancis A. Enos. Dr. Bay less diag nosed Running eag le with antisocial p ersonal i t y disorder, and Dr. Enos found that his behavioral p a ttern was “sociopathic rather than n e u r o tic or psy chotic.” B ecause I nig uez had requested these ex aminations under Rule 26.5—ag ainst the advice of Tilden’s a t t o r n ey , Roland J

. Steinle I I I
, who had recommended requesting c ourt funds for private ex aminations 3 —I nigu ez ’s attempts to ex clude Dr. B ay less’s and Dr. Enos’s reports were u nsuccessful, and he was required to file them with the court.

B e fore the final sentencing hearing

, I nig uez submitted an eig ht-pag e sentencing memorandum. I nig uez arg ued that Running eag le should be spared the death penalty

, and should instead receive two concurr e n t life sentences. I nig uez contended that Running eag le’s mind was impaired b y alcoholic “jung le juice” at the time of the murders; there was insufficient evidence that Running eag le, rather t h a n Tilden,

co m mitted the murders; and the murders were out o f character. I nig uez also soug ht to rebut the a n t icipated
ag g r avating factors relied u pon b y t h e s tate. He a

rg u ed the killing s were not “cruel, heinous and depraved,” there was no evidence of an ex pectation of pecuniary g ain, and they should
not be considered two separate killing s because both occurred

3 A rizo n a R

u le of C rim i n al P ro ced u re 2 6 .5 p ro v id ed

, “ A t an y tim e b ef o re sen ten ce is p ro n o u n ced

, t h e co u rt m ay o rd er th e d ef e n d an t to

u n d erg o m en tal h ealth e x am in atio n o r d iag n o s tic ev alu atio n

. Rep o rts

u n d er th is sectio n sh all b e d u e at th e sam e tim e as th e p re- sen ten ce rep o rt

u n less th e co u rt o rd ers oth erw ise.” A cco rd in g to Stein le, A rizo n a co u rts

co n stru ed th is ru le to g en erally req u ire d isclo su re o f r e p o rts f

o r u se at

s en ten cin g

. T h u s, if a Ru le 2 6 .5 rep o rt co n tain ed n eg ativ e in f o rm at i o n , th ere w as n o w ay to p rev en t th e sen ten cin g j u d g e f ro m co n sid erin g th at in f o rm atio n

.R U N N I N G E A G L E V

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within a “very short period of time,” that is, that each murder

was committed during the commission of the other. F inally

, I nig uez claimed three mitig ating factors we r e present: Running eag le was y oung , intox icated, and “ under unusual o r substantial duress.” I nig uez did not present n ew evidence in support of the memorandum, and relied instead on the PSRs and trial testimony

and evidence.

Running eag le and Tilden were jointly sentenced at a F ebruary 3, 1989 hearing

. The court issued a special verdict, from which it read at the hearing

, sentencing Running eag le to death and Tilden to two consecut i ve terms of life imprisonment

. I n imposing Running eag le’s sentence, the
court fou n d that the state had proved three statutory ag g r avating circumstances: that the murders were committed with the ex pectation of pe c u n i ar y g ain; that they were “especi a l l y cruel, heinous a nd depraved”; and that Running eag le was convicted of one or mor e homicides during the commission of the offense. See Ari z

. R e v. Stat. § 13- 703(F )(5), (6), (8) (1988). Upon cons i d e r ing the evidence submitted b y I nig uez , the court found that the only mitig ating circumstance for the murder counts was Running eag le’s a g e , “one d ay short of 19,” which w a s n ot sufficient to c all for leniency

. 4 The court f

ound that the testimony and letters from Running eag le’s f

amily and friends did not compel mitig ation. The court stated that Running eag le had not shown a ny feeling for family or friends, that he was concerned only w ith “himself a

nd his own appetites,” a

n d that the psy cholog ical reports indicated that he did not “have the ty pes of feeling s o r emotions that people usually have for family or f r i e nds.”

4 T h e co u rt f

o u n d t h at Ru n n i n g eag le’ s bu rg lary an d th ef t co u n t s, b u t n o t th e m u rd er co u n ts, w ere m itig ated b y a “ [h ]isto ry o f f am ily p ro b lem s alth o u g h n o t o v erly

sev ere.”R U N N I N G E A G L E V

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Althoug h the court quoted at leng th from t h e B ay less a nd Enos r eports at the sentencing hearing

, a nd a lso considered a psy cholog ical report prepared by Doctor Rog er M. Martig for prior J uveni le Court proceeding s, the court stated that it did
not c onsider these as ag g ravating circumstances, but neit her did it find that they

weig hed in favor of mitig ation.

I n sparing Tilden death, the court found “sig nificant a nd considerable differences” between him and Running eag le. The court found that the state had not p r o v e d bey ond a reasonable doubt that Tilden participated in the murders with the ex p e ctation of pecuniary g ain, thoug h the other two ag g r avating factors were present. The c o urt noted that T ilden had a d ifficult childhood, but it did not ex pressly g ive w eig ht
t o this circumstance. I t found that psy cholog ical e vi d e n c e th at Tilden suffered f

rom a p ersonality disorder was n ot, in itself, a mitig ating circumstance. The c o u r t found hig hly sig nificant the g reat weig h t of the evidence sug g est i n g t hat Running eag le, and not Tilden, had personally inflicted the fatal stab wounds. The court concluded that Ti l d en h ad followed his charismatic, older, more intellig ent cousin o n the nig ht of the murders, and that Ti l d e n , unlike Running eag le, had a c onscience and was capable of rehabilitation. The court stated, however, that “ these comparisons were not used in
ag g r avation of defendant Running eag le’s sentence.”

B. PCR and Appellate Proceedings

F ollowing sentencing

, Running eag le commenced PCR proceeding s pro s e b y f iling a form petition for postconviction relief and a petition for writ of coram nobis. The

c o ram nobis petition alleg ed that I nig uez had failed t o perform an a dequate i n v estig ation, mount an effective defense, or object to inadmissible evidence and prosecutorialR U N N I N G E A G L E V

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misconduct. On March 23, 1990, J ohn M. Anti e a u was appointed to r e p resent Running eag le in the PCR and appellate proceeding s. 5 The Ariz ona Supreme Court stay ed Running eag le’s direct a p peal pending determination of his PCR petition. The same j u d ge who had presided over trial and sentencing also presided o v e r the initial PCR proceeding s.

Over the g overnment’s objection, the PCR court g ranted Antieau’s mo t ion for the appointment of an investig ator, Mary Durand, and a mental h e al t h e x pert, D octor Otto B endheim. Antieau f

iled a supplemental petition challeng ing Running eag le’s senten ce on eleven g rounds, including two I AC claims for failure to move to sever Running eag le’s trial from Tilden’s, and for a deficient closing arg ument. Antieau also filed a second supplemental petition in which he challeng ed Dr. B a

y less’s a nd D r. Enos’s d i a gnoses o f antisocial personality disorder, and r e q uested $1500 in additional f

unds so a new doctor, B endheim, could interview Running eag le in prison.

On April 23, 1991, the PCR court summarily d i s m i s sed Running eag le’s petitions. I t f o und that, in his initial pro se petition, Running eag le had not raised a “‘colorable c laim’

. . . of ineffective a ssistance of trial counsel,” and that even if his complaints w e r e valid, the e vidence ag ainst him was overwhelming

, and the result w ould not have been different. The c ourt found that the claim s ra i sed in the supplemental petitions filed by Antieau were “still raisable o n direct appeal.” I t denied the re q u e st for additional funding for Dr. B endheim to prepare a report, which the court viewed as “ not

5 A n tieau w as ap p o i n t ed af t er Ru n n in g eag le su ccessf

u lly so u g h t th e

rem o v al o f

an o th er ap p o in ted P CR an d ap p ellate co u n sel.R U N N I N G E A G L E V

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appropriate in the co n tex t of post-conviction relief proceeding s.” I

n addressing this issue, the court opined that Running eag le appeared t o “take[ ] one aspect o f the Court’s sentencing as if it we re t h e o nly basis f or the Court’s determination of the appr o p riate and lawful sentence.” The court denied a motion for rehearing filed by Antieau.

Antieau petitioned the A riz ona Supreme Court for r eview of the PCR c ourt’s denial of relief. This p eti t i o n w a s consolidated with Running eag l e’s direct appeal, which was also filed b y Antieau. O n April 20, 1993, th e A riz o na Supreme Court affirmed Running eag le’s c o nviction a nd
sentence and the denial of his PCR petition. I t reasoned that, “[ b] ecaus e R u nning eag le f ailed to show that counsel’s conduct was deficient

, t he trial court properly dismissed his petition for post-conviction relief.”

C. Subsequent Proceedings

After the United States Supreme Court denied c e r t i orari and the A riz ona Supreme Court issued i t s mandate, Running eag le i n i tiated p ro se a second PCR proceeding

, which was ultimately d ismissed beca u s e he failed to timely file a p etition. Running eag le n ex t f i led a federal h abeas petition, which was dismissed without prejudice to allow him
to ex haust additional claims in state court.

Running eag le then initiated a third PCR proceeding in the Ariz ona Superior Court: this was the state proc eeding in which the c laims raised o n this appeal were f o u nd procedurally d efaulted. I n a 2 24-pag e petition filed by a new attorney , Running e a g le claimed, inter alia

, that I nig uez h ad performed deficiently by failing to (i) investig ate and present key mitig ation evidence; (ii) obtain a competent a ndR U N N I N G E A G L E V

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independent mental status e x amination; (i i i ) develop a nd advance a theory that Tilden actually committed the homicides; and (i v ) r e q uest the appointment of a second attorney

. On October 21, 1996, the Superior Court dismissed Run n ing eag le’s c laims a

nd the petition. I t held that, even if the mitig ation-evidence claims w ere “ colorable,” they were p r ocedurally defaulted u nder Ariz ona Rule of Crimina l Procedure 3 2 .2(a)(3), and the inculpation and second-counsel claims were in default a

n d

, alternatively

, not colorable. 6 The Ariz ona Supr e me Court denied Running eag le’s petition for review of these ruling s.

O n A p r il 15, 1999, Running eag le filed the amended federal habeas petition n o w b efore us. He raised, a mong others, claims that I nig uez was ineffective because he failed
to retain, use, and competently p repare in d ependent mental health e x perts, or investig ate and present mitig ating evidence
at sentencing ( “mitig ation-evidence I A C c laim”), inculpate Tilden (“inculpation I AC c laim”), and request a second counsel (“second-counsel I AC claim”). On F ebruary 6
, 2004

6 Ru n n in g eag le also claim ed th at A n tieau w as co n stitu tio n ally in ef f ectiv e o n ap p eal an d in PCR p ro ceed in g s. T h e Ar i z o n a Su p erio r Co u rt f o u n d th is claim p reclu d ed

, an d altern ativ ely dism i s s e d i t o n th e

m erits. W e rej ect, h o w ev er, th e g o v e r n m e n t ’ s s u g g estio n th at th is altern ativ e m erits ru lin g i s en tit l ed to A EDP A d ef eren ce. Ru

n n in g eag le d o es n o t on th is ap p eal seek t o r e litig ate a “ claim ” reg ard in g P CR

co u n sel’ s p erf

orm an ce o n w

h i ch basis h is h ab eas p etitio n co u l d b e

“ g ran ted ” (n o r co u ld h e u n d er cu rren t Su p rem e Co u rt p reced en t). S ee 2 8 U.S.C. § 2 2 5 4 (d ); Ha r rin g to n v. Rich ter , 5 6 2 U

. S

. 8 6
, 9 8 (2 0 1 1 ). Rath er, h e seek s t o sh o w cau s e f o r th e pro ced u ral d ef

au l t o f u n d erly in g trial- lev el IA C claim s on th e basis o f P CR co u n sel’ s alleg ed ly d ef icien t p erf o rm an ce. T h e Su

p erio r Co u rt’ s ru lin g can n ot p o ssib ly b e c o n stru ed
to ad d ress th is issu e, a s t h e e q u i tab le ru l e of Ma rtin ez h ad n ot y et b een

an n o u n ced in 1 9 9 6

.R U N N I N G E A G L E V

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A N 16

and March 10, 200 6, the district court issued interim orders finding each of these claims procedurally defaulted.

The district court denied Running eag le’s remaining cla i m s o n t he merits, a n d we g ranted his request for a certificate of appealability as to several o f these claims. The S u p r e m e Court decided Martinez on March 20, 2012. O n J uly 18, 2 012, we filed our opinion a ffirming the d istrict court’s r u l ing s on the merits o f the claims presented on appeal. A lso o n J u ly 1 8, 2 01 2
, we g r anted Running eag le’s motion for rema n d to the district court “for the limited
purpose of reconsidering its procedural default holding s on Running eag le’s ineffective a ssistan ce of counsel c laims

. . . in lig ht o f Martinez v. Ryan .” 7 On limited remand, the district
court ex panded the r ecord and d enied Running eag le’s request for a further evidentiary hearing

. On October 2, 2 0 1 4
, the district court entered an order holding that Running eag le h ad
not shown cause under Martinez for the procedural default o f
t h e m i t i g a t i o n-evidence, inculpation, and secon d

- c o u n s e l I A C claims, leaving them in default.

III. Standard of

Review

W e review de novo the district court’s dismissal of a habeas petition and its procedura l d efault determinations. Sexton v. Cozner
, 6 7 9 F .3d 1150, 1153 (9th Cir. 2012). Running eag le filed his amended federal petition after the

7 B y g ran tin g th is m o tio n , w e rej ected th e g o v ern m en t’ s arg u m en t th at Ru n n in g eag le h ad ab an d on ed an y req u est f o r relief b ased o n i n ef

f ectiv e assistan ce o f P CR co u n sel. W e s i m i larly rej ect th e g o v ern m en t’ s

su g g estio n th at w e reco n sid er th is ru lin g

. Cf. Ba l l v

. R o d g ers , 4 92 F.3 d 1 0 9 4 , 1 1 0 2 (9 th

Cir. 2 0 0 7) (d iscu ssin g th e “ ex cep tio n to th e w aiv er ru le

. . . f o r in terv en i n g ch an g es in th e law ”) (ellip sis in o rig in al) (citatio n

o m itted ); 9 t

h Cir. R. 2 7

- 1 0 (a)(3 ).R U N N I N G E A G L E V

. R Y

A N 17

effective date of the Antiterrorism and E f f ec tive Dealth Penalty Act o f 1996 (AEDPA). R unningeagle II
, 6 86 F .3d at 766. T herefore, any claim that was adjudicated on the merits i n state court is reviewed under the “hig hly defer e n t i al standards” of AEDPA. Davis v

. A yala

, 1 35 S. Ct. 2187, 2198 (2015); see 28 U.S.C. § 2254(d). Any f ederally reviewable claim that was not adjudicated on the merits in state court is reviewed de novo. See C o n e v

. Bell

, 556 U.S. 449, 472 (2009).

IV. Discussion

A. The Legal Framework of Martinez

.

F ederal c ourts g enerally cannot g r a n t h abeas relief for a claim defaulted in state court “pursuant to an independent a nd adequate state procedural rule

. . . unless the prisoner can demonstrate cause for the default and actual p r e j u d i ce as a result of the a lleg ed violation of federal law. ” C o l e man v

. Thompson

, 501 U.S. 722, 750 (1991). 8 Th e constitutionally ineffective p erformance of counsel, which is “imputed to the State,” may provide cause, but t here is no g eneral constitutional rig ht to a

n attorney in PCR proceeding s. Id. at 752–54. The Supreme Court in Coleman left unanswered the question of whether a

nd under what circumstances there may be a constit u tional rig h t to c o unsel where “state collateral review is the first place a prisoner can present a challeng e to his conviction.” Id. at 755.

8 Pro ced u ral def

au lt m ay also b e ex cu sed w h ere “ f ailu re to co n sid er th e claim [] w ill resu l t i n a f

u n d am en tal m iscarriag e o f j u stice.” C o lema n , 5 0 1 U .S. at 7 5 0

. R

u n n in g eag le d o es n o t arg u e th at th is ex cep tio n ap p lies.R U N N I N G E A G L E V

. R Y

A N 18

W ithout a

nswering that question, the Martinez Court h eld that cause may be e st ablished for a prisoner’s procedural default of a claim of ineffective a ssistance at t r i al b y “[ i] nadequate assistance o f counsel at initial-review collateral proceeding s,” i.e., “collateral proceeding s which provide the first occasion to raise a cl a i m of ineffective assistance of at trial.” 132 S. Ct. at 1315. Martinez stated that this “narrow

ex c e ption” to Coleman was an “equitable” o n e , n ecessary because:

W h en an attorney e rrs in in i t ial-review collateral proceeding s, it is likely that no state court at any lev e l will hear the prisoner’s claim.

. . . A nd if counsel’s er r o r s in an initial-review collateral proce eding d o not

es tablish cause to ex cuse the procedural d e fault in a federal h a

b eas proceeding

, n o court will review the prisoner’s claims.

. . . .

W ithout the help of an adequate attorney , a prisoner will have . . . difficulties vindicating

a substantial ineffect ive-assistance-of-trialc o u n s e l c l a i m

. C l ai m s o f i n e f f e c t i v e assistance at trial o ften require investig a tive work and an underst anding of trial strateg y

. W h en the issue cannot be raise d o n direct review, moreover, a pr i s o ner asserting an inef f e c t i v e

- a s s i s t a

n c e

- o f

- t r i a l

- c o u n s e l claim in

an initial-review collateral proceeding cannot rely on a court opinion or the prior work of an attorney addressing that c laim. To present a claim of ineffective a s s i s t ance at trial inR U N N I N G E A G L E V

. R Y

A N 19

accordance with the State’s procedures, then, a prisoner likely

needs an effective attorney

.

Id. at 1 315–18 (citations omitted). I n Trevino v. Tha l e r , 1 3 3 S

. Ct. 1911 (2013), the Supreme Court summariz ed t h e four-part test announced in Martinez :

C o leman [ contains] an ex c eption, allowing a federal h a b eas court to find “cause,” thereby

ex c using a defendant’s procedural default, where (1) the claim of “ineffective assistance of trial c o unsel” w as a “substantial” claim; (2) the “cause” consisted o f there be i n g “ no counsel” or only “ineffective” counsel during the state c ollateral review proceeding ; (3) the
state co llateral r e v iew proceeding was the “initial” review proceeding in respe c t to t h e “ i n e f

f e ct i v e

- a s s i s t a nce-of-trial-cou n s el claim”; and (4) s t a t e law requires that an “ineffective assistance of trial counsel [ claim]

. . . be raised in an initial-review collateral proceeding .”

Id. a t 1918 (secon d and third alterations in orig inal) (citing Martinez , 132 S. Ct. at 1318–19, 1320–21).

The g overnment does not dispute that the third Martinez requirement is s a tisfied: Running eag le seeks to show cause based o n A n t ieau’s supposedly deficient representation during his initial PCR p roceeding

. W e address the remaining requirements in turn.R U N N I N G E A G L E V

. R Y

A N 20

B. Arizona Law Required Prisoners to Raise I AC Claims in Initial-Review Collateral Proceedings Duri n g the Relevant Time Period.

W e consider at the outset what Ariz ona law required to

a ssert an I AC claim at the time Running eag le broug h t his appeal and f

irst petition f

or post-conviction relief. This is an appropriate place to beg in, because however deficient o r prejudicial the performance of trial or PCR counsel, cause may be shown under Martinez o nly if, “ u n d e r s tate law, claims of ineffective a ssistance of trial c o unsel must be raised in a n i n i t ial-review collateral proceeding .” 132 S. Ct. at 1320. The S u p reme Court ex plained in Trevino that this requirement c o u ld be satisfied where state law did not

ex p licitly require petitioners to assert I AC claims in i n i t i a lreview c ollateral proceeding s, but “ [ t] he structure and desig n of the [ state] sy stem in actual operation . .

. make it v irtually impossible f

or an ineffective assistance claim to be presented on direct review.” 133 S. Ct. at 1915 (citation omitted).

The dis t r i c t court held that, at the time Running e ag le broug ht h is appeal and first petition for post-conviction relief, Ariz ona law provided for direct appellate review of I AC claims. T he district court found that Running eag le, throug h Antieau, in fact raised I AC claims in the PCR proceeding

, “and then consolidated those claims with the o t h e r issues raised o n ap peal.” I t concluded that this consolidation procedure was the functional equivalent of “ providing direct appellate review of ineffectiveness claims.” A ccording ly

, the di strict court held that the procedural default o f Running eag le’s claims could not be ex cused u nder Martinez

.

Ariz ona did not ex pressly require I AC claims to be raised in collateral p roceeding s until 2002, when t h e A riz o naR U N N I N G E A G L E V

. R Y

A N 21

S u p r e m e Court decided State v

. Spreitz
, 39 P.3d 525 ( Ariz

. 2002). 9 Running eag le filed his s u p p l emental PCR petition and appeal in 1990 and 1991, respectively

, b efore Spreitz b e c a me law. However, at this time, the “structure a n d desig n” of Ariz ona law a s set f orth by the Ariz ona Su p r eme Court made the meaning ful presentation of an I AC claim on direct review “virtually impossible.” S ee Trevino
, 133 S. Ct. at 1915 (citation omitted).

I n State v. Valdez

, 770 P.2d 313 (Ariz

. 1989), the A riz o na Supreme Court strong ly urg e d d efendants to raise I AC c laims in petitions b roug ht under A riz ona Rule of Criminal Procedure 32, which g overns PCR proceeding s. Id. at 319. The Court stated that it was “reluctant” to decide I AC c laims without the benefit of an evidentiary record that could not be de v e l o p e d in d irect a

ppellate proceeding s. Id. at 318. The Court set f

orth its recommended procedure : “[ a] s a g eneral matter,” a defendant who seeks to raise an I AC claim during the pendency of his direct appeal “ sho u l d f i l e the proper petition under Rule 32

. . . in the trial court and seek an order from the appellate court suspending the a p p e al.” I d. at 319. The trial court could then make an e viden t i a r y r ecord a nd issue its ruling

, and after t h a t , the defendant could move for

c o n solidation of the post-conviction p roceeding s and t h e direct ap p ea l

. 1 0 Id. The Ariz ona court sy stem followed the

9 M artin ez , w h ich w as also bro u g h t b y a p etitio n er in th e cu s to d y o f th e State of A rizo n a, cited S

p reitz f or th e p ro p o sitio n th at “ A r i z o n a l a w

. . . d id n o t p erm it [Martin ez’ s ap p ellate co u n sel] to arg u e o n direct ap p eal th at trial co u n sel w as in ef

f ectiv e.” Ma rtin ez , 1 32 S. Ct. at 1 3 14

.

10 In Kro n e v. H

o th a m , 89 0 P.2 d 1 14 9 (A riz. 1 9 9 5 ), w h ich w as d ecid ed af ter Ru n n in g eag le f

iled h i s f irst PCR p etitio n an d ap peal, th e A rizo n a Su p rem e Co u rt retreated fr om th e Va ld ez p ro ced u re o f stay in g ap p eals
p en d in g th e reso lu tio n o f Ru le 3 2 p ro ceed in g s

. Kro n e stated th at th isR U N N I N G E A G L E V

. R Y

A N 22

Valdez procedure when it decided Running eag le’s claims: Antieau raised I AC claims in a Rule 32 proceeding

, a nd t he Ariz ona Supreme Court stay e d his direct appeal pending that proceeding

, and then consolidated them for appellate review.

I n State v. Carver
, 771 P.2d 1382 (Ariz

. 1989), which was decided shortly after Valdez

, the Ari zona Supreme Court held: “W e will not reverse a conviction o n i neffective assistance of counsel g rounds on direct appeal a b s e n t a separate evidentiary h earing concerning counsel’s actions o r inactions. O nly where we may c learly determine from the

re c o rd that the ineffective assistance claim is meritless will

we elect to c onsider the issue on direct appeal.” Id. at 1390. 1 1

Valdez and Carver r endered it all but futile for an A riz o na criminal defendant to raise a n I AC claim on direct a ppeal. 1 2 At best, he would be required to raise it ag ain by Rule 32 petition. At worst, the claim would be d e e m e d clearly meritless and denied without any further development of the record. As in Trevino
, there is no p ri n c i p l ed reason why

p ro ced u re h ad “ p ro v ed u n w o rk ab le an d resu l t e d i n lo n g d elay s,” an d th er e a ft er w o u ld b e f o llo w ed o n ly i n “ th e m o st ex cep tio n al circu m s tan ces.” Id

. at 1 1 5 1

– 52

.

11 Ca rver ’ s h o ld in g w as reiterated in S ta te v. Atwo o d

, 8 32 P.2 d 5 93
, 6 1 6 (A riz. 1 9 9 2 ), w

h ich w as d ecid ed af

ter Ru n n in g eag le b ro u g h t h is ap p eal

an d f i rst p etitio n f

o r p ost- co n v icti o n r elief

, an d b ef o re th e A rizo n a Su p rem e Co u rt af

f irm ed R u n n in g eag le’ s co n v ictio n an d sen ten ce an d th e d en ial o f h is P CR p etitio n

.

12 W e ex p ress n o o p in io n as to w h eth er, b ef

o re Va ld ez an d Ca rver w ere d ecid ed

, A

rizo n a law ef

f ectiv ely req u ired p etitio n ers to b rin g IA C claim s i n in itial- rev iew co llateral pro ceed in g s. Cf. La mb rig ht v. S t ew a r t , 2 4 1 F.3 d 1 2 0 1
, 1 20 3 (9 th Cir. 2 0 0 1) (statin g th at, as o f 1 9 8 4
, n o A rizo n a case req u ired IA C claim s to b e b ro u g h t o n d irect ap p eal).R U N N I N G E A G L E V

. R Y

A N 23

federal law should “ d eny

defendants the benefit of Martinez solely becau se of the e x istence of a theoretically available procedure, namely direct appellate review,” wh ich is “difficult, a n d i n the ty

pical case all but impossible, to use successfully

, a n d w hich [Ariz ona] courts so strong ly discourag e defendants from using .” 133 S. Ct. at 1920.

The district court found that Tre v i no did not a pply because the Valdez procedure o f stay ing the direct appeal a nd consolidating it with the Rule 32 proc e ed i n g in effect provided “direct appellate review of ineffectiveness claims.” However, this consolidation was merely ministe r i a l

. Under Valdez

, d irect appeals and Rule 32 petitions remained on separate tracks, thoug h they u ltimately converg ed at the same station. Crucially

, that converg e nce would occur afte r PCR counsel had raised the issues f or review a nd developed the evidentiary record before the PCR co u r t. The A riz o na appellate court would concurrently review the direct appeal and the den i a l o f t h e PCR petition, as it did in this case, but this is not the same a s reviewing the p etition in the first instance. See Runningeagle I
, 8 59 P.2d a t 1 7 1

. Martinez makes clear that an appeal f r om a n initial-review collateral proceeding is distinct from the initial-re v i e w collateral proceeding itself; the equitable ex c use applies only to the latter. 132 S. Ct. at 1320.

Consolidation did not a lter the re s u lt that, b y “structure and desig n,” the Ariz ona sy stem in actual operation made it “‘virtually impossible’ for an inef f e ctive assistance claim to be presented on direct review.” Trevino
, 133 S. Ct. at 1915 (citat i o n o mitted). The Ariz ona sy stem therefore posed the
g rave r isk wi t h which Martinez is concerned: that PCR

c o u n s e l w ould fail to r aise or develop substantial trial-leve l I AC claims, and, because PCR counsel’s performance is notR U N N I N G E A G L E V

. R Y

A N 24

constitutionally reviewable, any deficiency in this reg ar d

w o u l d r esult in “no court

. . . review[ ing ] the prisoner ’s claims.” Martinez
, 132 S. Ct. at 1 316. The equitable rules o f Martinez and Trevino prevent this inequitable result.

Thus, during the period Running eag le was litig a ting his direct appeal and Rule 32 petition, Ariz ona law in effect required the assertion of I AC claims in the initia l

- r eview collateral p r oceeding

. The district c ourt erred in holding otherwise.

C. Runningeagle Fails to Demonstrat e the Prejudicial Default of a Substantial IAC Claim in PCR Proceedings.

W h ere, as h ere, the state c r iminal justice sy stem satisfies the characteri s t i c s required b y Martinez
, the petitioner must make two related showing s about the streng th of his particular I

AC claim to ex cuse its default.

F irst, the I AC claim must be “a substantial one, which is
to say that the prisoner must demonst r a te that the c laim has

some merit.” Martinez
, 132 S. Ct. at 1318. Thus, there must be a substantial showing of a “reasonable probability that, but for c ounsel’s unprofessional errors, the result of the proceeding would have been different.” See S t r i ckland v

. W ashington

, 466 U .S. 668, 6 94 ( 1984)

. “ A reasonable probability is a probability sufficient to underm i n e c o n fidence in the outcome.” I

d. “W hen a defendant challeng es a death
sentence such as the one at issue in this case, the question is whether there is a r e a sonabl e probability that, a bsent the
errors, the sentencer

. . . would have concluded that the balance of ag g ravating and mitig ating circumstances did not warrant death.” Id. at 695.R U N N I N G E A G L E V

. R Y

A N 25

Second, a petitioner must sho w that “appointed counsel in the initi a l

- r e view collateral proceeding

, where the claim should have been raised, was ineffective under the standards of Strickland v

. W

a shington .” Martinez
, 132 S. Ct. a t 1318. Construing Martinez
, we hav e h eld that, to fulfill this requirement, a petitioner must show not onl y that PCR counsel performed deficiently

, but also that th i s p rejudiced the petitioner, i.e., that “ there was a re asonable probability that, absent the deficient performance, the result of the postconviction proceeding s would have been different.” P izzuto

v. Ramirez
, 783 F .3d 1171, 1178 (9th Cir. 2015) (quoting Clabourne v. Ryan
, 745 F .3d 362, 3 67 (9th Cir.), proceedings suspended and mandate stayed (Apr. 2, 2014), a nd overruled

on other grounds b

y McKinney v. Ryan
, 813 F .3d 798, 818 (9th Cir. 2015) (en banc)). Althoug h the prejudice at issue is that in PCR proceeding s, this is a recursi v e standard. I t requires the r eview i n g court to a ssess trial counsel’s as w ell

as PCR counsel’s performance. This is because, for us to find

a r easonable probability that PCR counsel preju d i c e d a petitioner b y failing to raise a trial-level I AC claim, we must also find a reasonable probability t h a t t he trial-level I AC claim would have succeeded had it been raised. 1 3

13 Ru n n in g eag le criticizes t h e Cla b o u rn e an d Pizzu to f ram ew o rk f

or assessin g prej u d ice, w

h ich h e co n t en ds is in co n sisten t w ith Ma rtin ez an d

o u r en b an c o pin io n in D i c k e n s v. Rya n , 7 40 F .3 d 1 30 2 (9 th Cir. 2 0 1 4 ). He arg u es th at th is f

ram ew ork is “ im

p ossib le- to

- m eet,” in th at it req u i res

a p etitio n er to “ p ro v e t

h e m erits o f h is in ef

f ectiv e assistan ce claim b ef ore

an y ev id en tiary d ev elo p m e nt o f t h e def au lted

, u n d ecid ed claim j u st to clear t h e cau se- an d

- p rej u d i ce h u rd le t o ex cu se th e c l aim ’ s p ro ced u ral d ef au lt.” S ee Detrich v. Rya n , 7 4 0 F .3 d 1 2 3 7
, 1 2 4 5

– 4 6 (9 t h Cir. 2 0 1 3 ) (en b an c) (p lu rality o p in io n ) (statin g th at a pr i s o n er “ n eed n o t sh o w actu al
p rej u d ice resu ltin g f

ro m h is PCR co u n sel’ s d ef icien t p erf

o rm an c e , ov er

an d ab o v e h is req u ired s h o w in g th at th e trial- co u n sel IA C claim [is]

‘ su b s tan tial’ u n d er th e f

irst M a rtin ez req u irem en t”).R U N N I N G E A G L E V

. R Y

A N 26

None of Running eag le’s procedurally defau l t e d I AC claims satisfies both the substantia lity and deficient performance criteria. Therefor e , t h e p r ocedural d efault o f these claims is unex cused.

1. The Mitig ation-Evidence I AC Claim

W e assume, fo r d i scussion p u rposes only

, that the mitig ation-evidence I AC claim, Running eag le’s strong e st claim, is a “ substantial” one, and therefore that there is “some merit” t o t h e contention that I nig uez performed deficiently and to Running eag le’s prejudice at sentencing

. 1 4

W e declin e t o r e v i sit th e C la b o u r n e / Pizzu to stan d ard

. A ssu

m in g

“ s u b stan tial” claim s an d d ef i c i en t p erf

o rm an ce o f P C R co u

n sel, Ru n n in g eag le co u ld n o t u ltim ately o btain relief ev en u n d er h is p ref

erred
stan d ard

. O n ce d ef

au lt w as ex cu sed

, h e w o u ld still n eed to p rev ail o n th e

m erits o f th e claim itself

, w h ich h e is u n ab le to d o on an y of h is th ree claim s. Ru

n n in g eag le h a s h a d th e op p o rtu n ity to f u lly d ev elo p i n th e d istrict co u rt th e ev i d e n t i a ry b asis f o r h is pro ced u

rally d ef au lted IA C claim s

. Un d er th ese circu m s tan ces, th ere is n o m ean in g f u l dif f eren ce b etw een f in d in g a clai m in d ef

au l t an d rev iv in g it b u

t d en y in g i t o n its

m erits. T h ere w as n o reaso n ab le p ro b ab ility th at P CR p ro ceed i n g s w ou ld h av e reach ed a d if

f eren t resu lt i f P CR co u n sel h a d r aised th e d ef au lted cl a i m

. T h u s, w ere w e to f in d cau se f

o r def au lt u n d er th e Detrich
p lu rality ’ s p ro p o s ed stan d ard

, w e w o u ld still d en y th e rev iv ed claim o n its

m e r i t s, b ecau se th ere w as n o reaso n ab le p ro b ab ility th at trial an d

sen ten cin g p ro ceed i n g s w o u l d h av e h ad a d if f eren t resu lt if trial co u n sel h ad p erf o rm ed ef f ectiv ely

.

14 Ma r tin e z s ug g ests, v i a a “ C f .” citatio n t o Miller-El v. Co ckrell

, 5 3 7 U.S. 3 2 2 (2 0 0 3 ), th at th e s u bstan tiality stan dard is co m p arab le to th e stan d ard f

o r a certif

icate o f ap p ealab ility to is s u e un d er 2 8 U.S.C. § 2 2 5 3 (c)(2 )

. Ma rtin ez , 1 3 2 S. Ct. at 1 3 1 8– 1 9. Un d er th is p erm issiv e stan d ard

, a p etitio n er n eed sh o w o n ly th at “ j u rists o f reaso n co u ld d isag ree

w i t h t h e d istrict co u rt’ s reso lu tio n o f h i s co n stitu tio n al claim s o r th at j u rists co u ld co n clu d e t h e i ssu es presen ted are ad eq u ate to d eserv e

en co u rag em en t

to p ro ceed f

u rth er.” Miller-El , 5 3 7 U.S. at 3 27

.R U N N I N G E A G L E V

. R Y

A N 27

a. Antieau’s Performance W as Not Deficient.

Under Martinez ’s recursive framework, the nex t step is to evaluate PCR c o unsel’s performance a nd its effect. Running eag le c o ntends that PCR counsel, Antieau, was ineffective for failing to investig ate the failure to investig ate by his predecessor, trial counsel I nig uez

.

There is little record evidence

, o n e way or the other, bearing on whether Antieau’s performance in PCR proceeding s w as reasonable “under prevailing professional norms.” S

trickland

, 466 U.S. a t 6 8 8

. F irst, Durand, the investig ator appointed to assist Antieau in the PCR
p r o c e e d i n g s , d e c l a r e d i n 2 0 1 3 t h a t An t i e a u w a s “overwhelmed by the case,” was “not alway s prepared,” a nd “did not perform adequately or appropriately ” ; that Durand “suspected that he h ad poly -substance abuse issues, including

a problem with alcohol”; and that she did not r e c all “ doing
any investig ative work o n either the tr ial or sentencing portions of Running eag le’s c ase.” This equivocal declaration, sig ned more than 20 y ears after the fact, does not establish ineffective performance. Durand declared that she did not r emember performing investig a tive work, not that she did not perform it. One of Antieau’s contemporaneous filing s in the PCR proceeding s, which stated that Du rand h a d “ not
y et completed her work,” undercuts her recollection.

Second, Running e ag le f aults Antieau for failing to provide D r. B endheim, the mental health ex pert appointed in PCR proceeding s, with materials outside the trial record. B ut i t is not necessarily ineffective to tailor one’s investig a t i o n s to limitations of time a

nd money , see id. a t 6 8 1
, and, g iven Dr. B e ndheim’s preliminar y i mpression that the appropriate diag nosis for Running eag le could have been the same as thatR U N N I N G E A G L E V

. R Y

A N 28

of his co-defenda

n t , w ho received a life sentence, Running eag le does not show that Antieau’s pursuit of this lead and forbearance of others was a prejudicial strate gi c choice at the time.

Third, Running eag le sug g e sts that, h ad Anti e a u framed his request f

or addi t ional f

unding for Dr. B endheim differently

, he likely would have received i t

. T h is is both
specu lative, and smacks of the judg ment in hindsig ht f o r b i d d en b y Strickland

, id. at 680. Moreo v e r, Running eag le’s p r o g nostication of what likely would have occurred is contradicted by the PCR court’s st atement that “Petitioner

. . . has taken o ne a spect o f the Court’s sentencing

as if it were the only basis fo r the Court’s determination o f the appropriate and lawful sentence.”

F inally

, Running e ag le o bserves that the bulk of the c laims A ntieau raised in his supplemental PCR petition were dismissed for being raisable on direct a p peal. This, too, smacks o f hindsig ht, and does not spea k t o w hether capable PCR c ounsel would h ave ex pected this outcome o r whet h e r it w as ty pical of Ariz ona PCR proceeding s a t the relevant time.

Given the “ hig hly deferential” stan d a r d under w hich we evaluate Antieau’s performance, and the paucity of evidence
t h a t A n t i e a u performed d eficiently

— which Runni n g e a g l e h a d

a full opportunity to develop in district court foll o w i n g our limited remand—Running eag le fails to overcome the “strong presumption that c o u nsel’s conduct falls within the wideR U N N I N G E A G L E V

. R Y

A N 29

r a ng e of reasonable professional assistance.” 1 5 Id. at 6 8 9 ( c i t ation omitted). Running eag le therefore cannot s h o w c a u s e to ex cuse the default o f the mitig ation-evidence I AC claim under Martinez

. See Martinez , 132 S. Ct. at 1318.

b. Antieau’s Failure to Raise t h e MitigationEvidence IAC Claim i n PCR Proceedings W as Not Prejudicial

.

Even if we were to conclude that Antieau’s alleg ed failure
to investig a te a

nd present the mitig ation-evidence I AC claim in PCR proceeding s was deficient

, this claim would

n e v ertheless f

ail f or lack of a showing of p rejudice. Similarly

, to pretermit a leng thy and ultima t ely f ruitless discussion of what I nig uez d i d and did not d o during his representation of Running e ag le

, others’ observations a nd recollections of I nig uez , and a pp r o p r iate sentencing strateg ies

15 It is n o t n ecessary h ere t o d elin eate p recisel y w h at PCR co u n sel’ s d u ties ar e , a nd h o w th ey are sim ilar to o r d if f eren t f ro m th o se o f trial or ap p ellate co u n s el. Ma r tin ez co n t em p lates th at ef

f ectiv e P CR co u n sel m ay in v estig ate “ ev id en ce o u tsid e th e trial reco rd ” to d eterm in e w h eth er a triallev el IA C claim

m ay b e raised , 1 3 2 S. Ct. at 1 3 18 , b u t Ma rtin ez is silen t

as to th e sco p e o f th e d u t y to in v estig ate in P CR p ro ceed in g s. T h e ef f ectiv en ess of P CR co u n sel i s ev alu a t ed “ u n d er th e stan dard s of S trickla n d ,” id

., b u t b e fo re Ma rtin ez th ere w as n o o ccasio n t o ap p ly S trickla n d ’ s co n stitu

tio n al stan d ard in th e P CR settin g , w h ere th ere is n o estab lish ed co n s titu tio n al rig h t to co u n sel. Strickla n d is cry stal- clear, h o w ev er, th at ef

f ectiv e p erf

orm an ce is m easu red n o t

b y ref eren ce to an y

“ s et o f d eta i l e d r u les,” b u t rath er b y assessin g “ th e reaso n ab len ess of

co u n sel’ s ch allen g ed co n d u ct o n t h e f acts o f t h e p articu lar case, v iew ed

as of th e tim e of co u n sel’ s co n d u ct.” 4 6 6 U.S. at 6 8 8

– 9 0. Ev en if w e accep t Ru n n i ng e ag le’ s co n t en tio n th at P CR co u n sel h as a bro ad d u ty to in v estig ate an d p reserv e p oten t ially m erito r io u s trial- lev el IA C claim s, Ru n n in g eag le sim

p l y d o es n o t carry h is b u rd en to sh o w th at A n tieau

“ m ad e erro rs so serio u s th at [h e] w as n o t f u n ctio n in g as

. . . ‘ co u n sel.’ ” Id

. at 6 8 7

.R U N N I N G E A G L E V

. R Y

A N 30

and sources of stand a rds of care, we assume arguendo that I nig uez ’ s investig ation a nd presenta t i o n o f mitig ation evidence was defi c i e n t for p urposes o f Strickland

. See Strickland

, 4 66 U.S. at 697 (“The o bject of an ineffectiveness claim is not to g rade counsel’s performance. I f it is easier to dispose o f an ineffectiveness claim on the g round of l a c k o f sufficient prejudice . . . that course should be followed.”).

Running eag le contends that I ni guez prejudiced his defense during the penalty phase b y failing to investig a t e o r present key mitig ation evidenc e

. Running eag le identifies several areas of his life that he arg u es I nig uez left

unex p lored: his difficult early childhood; his social a nd educational histo ry ; his medical backg round; his use o f alcohol; the effect of h is Native A merican heritag e on his behavior and demeanor; and mental h e a l th evidence that he claims invalidates the diag nosis of antisocial personality disorder and may support a diag nosis of P o s t-Traumatic Stress Disorder (“PTSD”). Running eag le also faults I nig uez for mishandling the request of ex p ert reports under Rule 26.5, and failing to provide Doctors B ay less and Enos and t he probation officers with the evidence I nig uez alleg edly would have uncovered had he adequately investig ated these areas.

i. Much of Running e a gl e’s Newly Offered Evidence I s Cumulative.

I nig uez e x amined o r cross-ex amined a number o f Running eag le’s family members and a cq uaintances at evidentiary hearing s, and solicited 15 letters on his behalf. This testimony and evidenc e detailed Running eag le’s childhood c ircumstances, including his mother’s alcoholism, his social and educational history , and his medical problems

as a child. The PSRs also described Running eag le’s troubledR U N N I N G E A G L E V

. R Y

A N 31

family backg round, criminal history

, peripatetic education and social circumstances, and history of childhood illness a nd injury

. 1 6 The sentencing court c onsidered these materials when it decided which sentence to impose.

The per t i nent new evidence that Running eag le offers includes the declarations of family members, classmates, ex

g irlfriends, and the parents of one ex -g irlfriend; and medical, educational, and juvenile records. This evidence does not

ma t e r ially e x pand upon what was already before the sentencing c ourt. F or instance, it is troubling to learn that, a s

a child, Running eag le lived in a squalid house, surrounded b y adults with substance a b u s e problems, who offered little nurturing ; that he frequently observed violence among family members; and that he was sometimes so hung ry , h e would eat Vitamin C tablets. B ut this information does not a l t e r t h e

s e ntencing profile that was b efore the court. This inclu d e d the letters, live testimony

, a nd PSR that described “a g reat d eal of dy sfunction in the family ,” a house with “very l i t t l e furniture and household provisions,” in which t h e r e was frequently “n o f

o o d

, ” a n d c i rcumstances that led Ru n n i ng eag le’s probation officer to b e “tempted o n more

16 Ru n n in g eag le co n ten d s th e P SRs w ere “ larg ely erro n eo u s an d in co m p lete.” He tak es p articu lar issu e w ith th e statem en t in th e earlier of th e tw o rep o rts th at “ [w ]ith t h e ex cep tio n o f d rin k in g p ro blem s o n th e p art

o f b o th h is m o t

h er an d s tep f

ath er, th e def

en d an t ex p erien ced n o sig n if ican t d if f icu lties d u rin g h is y o u th .” Ho w ev er, t h e seco n d P SR co n trad icted th e f irst, an d p ro v i d ed sev eral ex a m p l e s o f Ru

n n in g eag le’ s ch ild h o o d
stru g g les. T h e s eco n d P SR stated th at Ru n n i n g eag le h i m self d en ied h av in g “ an y d y sf

u n ctio n in h is f

am i ly ,” an d th at th e n ew an d tro u b lin g in f o rm atio n , w

h ich w as “ co n trary to t h e d ef en d an t’ s statem en t,” cam e f ro m h is j u v en ile p ro b atio n of f icer. Cf. S trickla n d

, 4 6 6 U .S. a t 6 9 1 (“ [W ]h at in v estig a tio n d ecisio n s are reaso n ab le d ep en d s critically on ”

“ i n f o rm atio n su p p lied b y th e d ef en d an t.”).R U N N I N G E A G L E V

. R Y

A N 32

than one occasion to contact Child Protec t i v e Services.” Additional d e t a i l s a

b o u t R u n n i n g e a g l e ’ s c hildhood sicknesses and injuries, or the v ouching s o f more remote acquaintances, l i kewise w ould not h ave affected the balance of mitig a t i n g ag ainst ag g r avating circumstances. See Strickland

, 466 U.S.
at 695; see also Bobby v. V an Hook

, 558 U.S

. 4
, 11–12 (2009).

Running eag le also arg u es that I nig uez did not properly investig ate or present mitig atio n e v i dence reg arding his use of alcohol. However, the court was a ware that Running e ag le was intox icated at the time of the murders. The presentence

r e p orts and Dr. Enos’s report each made reference t o Running eag le’s problems with a lco h o l. F urther, I nig uez ’s sentencing memorandum arg ued that Running eag le’s a lcohol

us e was a basis for leniency

, and referred to trial evidence that, on the nig ht o f the murders

, R u nning eag le had been “drinking a powerful intox icating liquor called J u n gl e J uice which is supposedly a mix ture of Everclear and f r u i t juices. There is also evidence that defendant w a s d r i nking beer a s well.” Once a g ain, the new evidence Running eag le offers a s to this issue is cumulative, and d o e s n o t create a reasonable probability that the sentencer would have differently balanced
ag g r avating and mitig ating c i rcumstances. Strickland

, 466 U.S. at 695.

ii. The New Mental Health and Cultural Evidence I s Equivocal.

The only new evidence offered by Running eag le that does
not merely e laborat e u p o n what w as already in the record

c o ncerns his mental health a nd the effect o f his Nat i v e American cultural backg ro u n d on his manner of ex p ressing himself. This evidence consists of (1) a 13 -p a r a g raphR U N N I N G E A G L E V

. R Y

A N 33

declaration of psy c h olog ist Katherine DiFrancesca, dated A u gust 20, 1 996; ( 2) a 44-pag e report prepared by forens i c psy cholog ist Charles Harris H eller, d ated J uly 17, 2006; a nd (3) a two-pag e, unsworn letter from psy chiatric consul t a n t Pablo Stewart to Running e ag le’s ha b e a s counsel, dated J anuary 22, 2013. As t h e d i strict court correctly concluded, this evidence is “equivocal” at best, and is in s u ff icient to demonstrate Strickland

prejudice.

Dr. DiF rancesca’s affidavi t w as based on two personal meeting s with Running eag le, th e Enos, B ay less, and Martig reports, juvenile and medical r e c ords, and social history information. Dr. DiF rancesca o pined that Running eag le was

an alcoholic, suffered from “psy cholog ical and mental disorders r esulting fr o m his a lcoholism,” and had a conscience, and that the diag nosis of antisocial personality disorder was likely incorrect. S h e f u rther opined that Running eag le did not show his e motions publicly , including
at h is court proceeding s, because he was raised within Native American culture, but that he felt “ g enuine remorse a nd shame” for the killing s. Dr. DiF rancesca g ave no affirmative diag nosis.

Dr. Heller’s report w as based upon a forens ic ex amination of Running eag le, h i s r ev iew of a variety of records, and his

ex p ertise in Native Am e r i can mental health a nd culture, which he developed while providing mental heal t h services
to the Cherokee Nation of Oklahoma. Dr. Heller o pined that Running eag le h ad “severe a lcoholism,” as well as “indicators of post-traumatic stress which are unique to h is childhood a s

a N at i v e American child in Phoenix and

. . . multiple traumatic ex p eriences.” Dr. Heller sug g ested that Dr. B ay less and D r. E n o s had wrong ly diag n osed Running eag le with antisocial personality disor der, because c linicians mostR U N N I N G E A G L E V

. R Y

A N 34

familiar with Caucasian p atients tend to misdiag nose Native America n s and fail to perceive sy mptoms of stress a

nd

anx iety

. However, Dr. Heller found that Running eag le “does
not meet full criteria for PTSD,” althoug h he criticiz e d these “classical” criteria as they applied w ithin the chronically stressful enviro n m ent encountered by many Native Americans. Dr. Heller o pi n e d t h at “the likely reason why [ Running eag le] fails to meet full diag n o stic criteria for PTSD is becaus e h e tends to minimiz e his sy mptoms in order to adhere to his false sense of s e l f. ” Dr. Heller diag n osed Running eag le with “an anx iety disorder not otherwise specified with PTSD features.”

Dr. Stewart wrote that he interviewed Running eag le for five hours, a

nd had reviewed “a va ri et y of social history documents including trial cour t proceeding s, witness declara t i o n s, medical-mental health-school records, custodial records and the psy

cholog ical evaluation of D r. Heller dated J uly 17, 2 006.” He o pined “to a r e a sonable deg ree of medical certainty [ ] that Mr. Running eag le currentl y suffers from Posttraumatic Stress Disorder and tha t he suffered from this condition at the time of the offe n s e s fo r which he has been sentenced to death.” D r

. Stewart also speculated that Running eag le may have suffered from Autistic Spectrum Disorder, Major Depressive D isorder, and Substance-Related Disorder at the time of the killing s, but that further evaluation was needed as to these conditions. 1 7

Running ea g le arg ues that, had I n ig uez provided capable mental health professionals with compl e t e r e c o r ds, along with

17 A lth o u g h S tew art’ s letter ref erred to an im

m i n en t d iag n o s tic v isit w i th Ru n n in g eag le sch ed u led f

o r Feb ru ary 4
, 2 0 13
, as o f Octo b er 2
, 2 0 1 4
, th e d istrict co u rt h ad n o t receiv ed an y ev id en ce o f

f u rth er tests.R U N N I N G E A G L E V

. R Y

A N 35

s upporting ex p ert analy sis of his Native American cultura l

ex p ression, the e x perts w ould have produced r e p o r ts that looked more like the newly submitted materials than the Enos and B ay less reports, which Running eag le contends should

never h ave been presente d to the sentencing court. These
arg uments are not persuasive.

F irst, the sentencing court stated ex p ressly that, althoug h it did n ot tr eat the B ay less and Enos r eports as sufficient mitig ating evidence, it also d id not “use[ ] the information o r t h e c o n c l u s i o n s i n t h e s e r e p o r t s a s a g g r a v a t i n g circumstances.” T h us, had I nig uez successfully ex cluded these report s , Running eag le’s balance of mitig a ting a nd
ag g r avating circu m stances would have remained the same, according to the sentencing judg e.

Second, while the court remarked at the sentencing hearing a nd in its special v erdict that Running eag le h a d not shown empathy for the victims, and display e d little emotion for his family and friends, this was n o t t h e basis for its
sentence. On the day of the sentenci n g h e aring

, the court ob served that Running eag le had “ex pressed some feeling s towards his family o r friends, ” b u t this did not chang e its conclusions. The c ourt focused not on Runninge a g le’s apparent lack of a ffect, but on the thrill he apparently derived from committing the c r imes, including the murders. Doctors DiF rancesca and Heller e x plained why p eople ra i s ed within

a Native American c ulture mig h t suppress neg ative emotions, downplay fami l y c o n flict, or poke fun at themselves, but there was no evidence that t h e laug h ter, joy

, and boasting following the murders w as a shared form of cultural

ex p ression i n r e s p onse to heinous acts rather than anR U N N I N G E A G L E V

. R Y

A N 36

ex p ression personal to Running eag le. 1 8 T hus, it is speculative
to sug g est that ex pert testimony abo ut Native American culture would have altered Running eag le’s sentence.

F inally

, even if there was some set of steps I nig uez should have taken that would h a v e led his mental health ex perts to produce reports more like Doctors DiF rancesca’s, He l l e r ’ s, and Stewart’s

— a s p e c u l a t i v e a n d h i ndsig ht-plag u ed assumption—these r eports are not of material mi t i ga ting weig ht. Dr. DiF r ancesca g ave no a ffirmative diag nosis. Dr. Heller used qualify ing lang uag e , and concluded that Running eag le did not meet the full diag nostic criteria for P TSD. D r. Stewart, who projected the g reatest certainty in his diag nosis, produced it more than 20 y ears after the crimes

were committed, and provided n o su p p o r ting analy sis. Our precedent asks us to e x amine w h e t h er “ the difference between the evidence that c ould have been presented and that which actually was presented is suff i c ient to ‘undermine confidence in the outcome’ of the proc ee d i n g .” Duncan v

. Ornoski

, 5 2 8 F.3d 1222, 1240 (9th Cir. 2008) (quoting Strickland

, 466 U.S. a t 694). Ru n ning eag le fails to demonstrate Strickland p rejudice und e r t his standard. See Leavitt v. Arave
, 646 F .3d 605, 614 (9th Cir. 2011) (“Such [ diag nostic] o pinions, which couch results in tentative la n g uag e, are simply not e n oug h to show prejudice.”); Rhoades v. H

e n r y , 6 38 F .3d 1027, 1050 (9th Cir. 2 011) (“Speculation about p otential brain dy sfunctions or disorders ‘is not sufficient to establish prejudice.’”) (citation omitted); cf. id. (“The mitig ating value o f [Dr. Pablo] Stewart’s most

18 T h e sen ten cin g co u rt n o ted th at T i ld en , w h o m Ru n n in g eag le co n ced es

cam e f ro m an “ alm o st id en tical b ack g ro u n d [],” d id n o t d isp lay th e sam e p o sitiv e “ d eg ree o f relish in g ” as Ru n n in g eag le, an d sh o w ed rem o rse an d

em o t io n

.R U N N I N G E A G L E V

. R Y

A N 37

concrete a ssessment, t h at Rhoades ‘does suffer’ from P o s t-traumatic Stress Disorder (PTSD), is lessened becau s e his diag nosis admittedly does n ot satisfy the requirements o f DSM–I V for this condition.”).

There is n o “ r e asonable p robability ” that, had I nig uez presented the n ew evidence, separately or colle c t ively

, “the
senten c er

. . . would have concluded that the balance o f
ag g r avati ng and mitig a ting circumstances d id not warrant death.” S

trickland

, 466 U.S. at 695. T h erefore, even assuming deficient performance by Antieau and I n ig uez , Running eag le cannot show c ause for the defau l t o f the mitig ation-evidence I AC claim. M artinez
, 132 S. Ct. at 1318; Pizzuto , 783 F .3d at 1178.

2. The I nculpation I AC Claim

At trial, “Running eag le’s defense rested on the theory that the state failed to meet its burden of proof.” Runningeagle II
, 686 F .3d at 777. Running eag le c ontend s that this strateg y

was objectively unr e a sonable, a nd I nig uez should have
arg ued at trial and sentencing that T i lden was the one w ho killed the W illiamses, and that he w a s the “leader” of the
g roup o n the nig ht of the murders. Runningeag le fails to show that this was a substantial I AC c l a im, much less that Antieau perf

ormed deficiently o r prejudicially by f ailing to raise it in PCR proceeding s.

No record o r e x tra-record evidence supports the theory that Tilden p ersonally killed either victim. Althoug h it is true that the g overnment’s c a s e ag ainst Running eag le relied primarily on circumstantial e v idence, the evidence that Running eag le—not Tilden—stabbed the W illiamses to deathR U N N I N G E A G L E V

. R Y

A N 38

was overwhelming

. 1 9 Running eag le’s the o ry that T ilden could have b een the killer is b a s e d o n Orva Antone’s testimony that he witnessed Tilden striking Mrs. W illiams in
t he head with a flashlig h t, and the testimony of a med i c al

e x pert, D r. Georg e B olduc, on cross-ex amination that t h e s e

“ b lunt force injuries of the head could have been of a f a t al nature.” However, Dr. B olduc consistently testified that Mrs. W illiams’s death was caused by a perforated heart, liver, a nd aorta, d ue to stab wounds throug h the chest and abdomen. I n

c o ntex t, Dr. B olduc’s d escription of the blunt force inj u r i e s

as p otentially “fatal” meant that they could have caused death but for the intervening stab wounds, not that the head trauma could have been the actual cause of death.

19 A s w e su

m m arized th is ev id en ce p rev i o u s ly :

[T ]h e p o lice f

o u n d R u n n in g eag le’ s p alm p rin t o n th e clo th es d ry er n ex t to th e v i ctim s ’ b o d ies an d m atch ed Ru n n in g eag le’ s sh o es w ith th e b l o o d y sh o e p rin ts f o u n d
at th e h o u se. R

u n n i n g eag le d iscu ssed th e crim es

sev eral tim es b ef

o re h i s arrest an d to ld h is
g irlf rien d —w h o testif i ed at t r i a l

, an d to w

h o m h e sh ow ed h is car tru n k f

u ll o f th e p ro p erty sto len f ro m th e W i lliam ses—th a t “ h e h ad b een in a f ig h t w ith tw o p eo p le an d h ad h it th em ‘ f u l l- f o rce.’ ” Wh en th e p o l i ce arrested Ru

n n in g ea g l e, th ey f

ou n d th e W illiam ses’
sto len p ro p erty

. T h e ev id en ce is ev en stro n g er in lig h t

o f A n t o n e’ s testim o n y th at Ru n n in g eag le tau n ted an d th reaten ed th e W illiam s e s w ith h i s k n if e, w av ed th e k n if e at th em as th ey retreated

, an d th en b ro k e t h ro u g h th e W illiam ses’ d o o r w ith a t ire iro n af ter th e W i lliam ses tried to g et aw ay

.

Ru n n in g ea g le II

, 6 8 6 F.3 d at 7 7 0 (citatio n s o m itted ); se e a l s o Ru n n in g ea g le I

, 8 5 9 P .2 d at 1 7 4 (“ T h e trial co u rt

. . . f o u n d Ru n n in g eag le in f act k illed th e v ictim s, an d w e ag ree.”).R U N N I N G E A G L E V

. R Y

A N 39

Running eag le sug g ests t hat I nig uez could have sway ed
t h e judg e or jury by uncovering and presenting evidence o f Tilden’s “violent past.” However, this evidence would have been inadmissible at tr ial under Ariz o na Rule of Evidence 404(a), which prohibits the introduction o f propensity evidence to prove that an i n d i vidual acted “in conformity therewith on a pa r ticular occasion.” 2 0 Even if this evidence could have been presented at sentencing

, there is no showing that it could have possibly l e d R unning eag le, to whom the evidence o v e r w helming ly pointed as the killer, to receive a reduced sentence. As we previ o u s l y concluded, “the trial court’s detailed Speci al Verdict makes clear that the likely result of further inculpation of Tilden w as a death sentence for Tilde n a n d n ot a life sentence for Running eag le.” Runningeagle II

, 686 F .3d at 771–72.

B e cause Running eag le fails to sh ow that the inculpation I AC claim w as a “substantial” o ne of “so m e merit,” the
p r o c e d u ral d e fault of this claim is not ex cused under Martinez . 132 S. Ct. at 1318.

3. The Second-Counsel I AC Claim

R u n n i n g e a g l e a r g u e s t h a t In i g u e z p r o v i d e d constitutionally deficient representation by failing to request the appointment of second counsel. Once ag ain, Running eag le does not show that this is a subs t a n t i al I AC claim for purposes of Martinez

.

2 0 A rizo n a Ru le o f Ev id en ce 40 4 w as am en d ed ef f ectiv e No v em

be r 1
, 1 9 8 8
, af ter trial a n d b ef

o re sen ten cin g

. T h e q u o ted lan g u ag e ap p ears in th e co d if icatio n in ef f ect at each tim e.R U N N I N G E A G L E V

. R Y

A N 40

Running eag le relies on the 1989 AB A Guidelines, which stated that “[ i] n cases where the death penalty is soug ht, two qualified a ttorney s should be a ssig ned to represent the defendant.” H owever, the Supreme Court has stressed t h a t, while AB A Guidelines may be “evidence of w hat reasonably dilig ent attorney s would do,” they do not define cou n sel’s federal constitutio nal duty to “make objectively reasonable choice s

. ” Van Hook

, 558 U.S. at 8–9 (citation omitted). F urth er , the Supreme Court h as cautioned ag ainst the inference of per se rules of reasonableness from professional standards “so detailed that they would interfere w ith the

c o nstitutionally protected independence of counsel a n d restrict the wide latitude counsel must h ave in making tactical decisions.” I

d. at 8 n.1 ( citation omitted). The 1989 Guidelines are not , s t a n ding alone, enoug h to r aise a substantial I AC c laim. Rather, “[ t] rial counsel c annot be said
to be constitutionally ineffectiv e [ s olely ] for deciding not to bring in co-counsel,” and, to raise a substantial c laim, Running eag le must present evidence of “ s o m e reason

. . . wh y the first lawy er is unable to provide adequate representation.” Allen v. W oodford

, 3 9 5 F .3d 979, 998 (9th Cir. 2005) (alterations in orig inal) (citation omitted).

Running eag le observes that T ilden’s counsel, Steinle, an

ex p erienced capital defense lawy er, obtained second counsel
to assist him. Running eag le a ls o p r e s e nts a September 27, 1988 le t t e r from local counsel to I nig uez offering to assist with the sentencing hearing

. This letter states tha t I nig uez had not returned counsel’s earlier call. F inally

, Newman, the investig a t o r who interviewed I nig uez in 1994, declared that I nig uez stated that he felt “overwhelmed” by Running eag le’s

case.R U N N I N G E A G L E V

. R Y

A N 41

Ru n n i ng eag le makes no freestanding showing o f prejudice caused by any deficient performanc e , and so he cannot show that Inig uez performed deficiently by failing to request the appointmen t of second counsel. 2 1 B ecause R u n n i n g e a g l e ’s second-counsel I AC claim is insubstantial, h e fails to show cause to ex cuse its default under Martinez

.

D. The District Court D id N o t A buse Its Discretion by Denying R unningeagle’s Request fo r an Evidentiary Hearing

.

The district court g ranted Runninge a g le’s motion to

ex p and the record with a number o f t h e ex hibits described above. However, it deni e d R u n ning eag le’s request f or an evidentiary hearing at w hich he soug ht to p resent live testimony from Tilden’s counsel, Drs. Stewart and Heller, trial defense investig ator Gloria Castillo, mitig ation fact witnesses, and ex perts in mitig ation and capital def ense. On this appeal, Running eag le contends that, if Martinez cause is
not shown o u t r ig ht, he is entitled to further f actual development in district court.

2 1 A l th o u g h w e h av e assu m ed th at Ru n n in g eag le’ s m itig atio n

- ev id en ce IA C claim is “ su

b stan tial,” th ere i s n o d em o n strated n ex u s b etw een In ig u e z ’s p erf

o rm an ce d u rin g t

h e p en alty p h ase an d h is lack o f co

co u n sel. Ev en if su ch a n ex u s ex isted

, R u n n in g eag le w o u ld b e u n ab l e to sh o w cau se f

o r th e d ef au lt o f th e seco n d

- co u n sel IA C claim

. A s w e h av e d iscu ssed

, A n tieau ’ s f

ailu re to raise t

h e m itig atio n

- ev id en ce IA C claim in P CR p ro ceed in g s w as n o t p rej u d icial. L ik ew ise, Ru n n in g eag l e c a n n o t sh o w th at A n tieau ’ s f

ailu re to raise th e s eco n d

- co u n sel IA C claim w as p rej u d icial, w

h ere th e su

p p o sed p rej u d ice cau sed b y t h e u n d erly in g alleg ed ly d ef

icien t p erf

o rm an ce—f

ailu re to i n v estig ate an d p ro p erly
p resen t m itig atio n ev id en ce—is id en tica l

. W e rej ect Ru n n in g eag le’ s

cu m u l ativ e erro r a r g u

m en t, w h ich w o u l d req u ire u s to accu m u l ate a

n u m b er o f trial- lev el I AC claim s th at w e h av e f o u n d in su

b stan tial or

u n su ccessf

u l o n th e m erits in th i s an d o u r p rio r o p in io n

.R U N N I N G E A G L E V

. R Y

A N 42

W e revi e w for an abuse of discretion a district court’s determination that a petitioner is not entitled to a n evidentiary hearing

. 2 2 Hurles v

. Ryan
, 752 F

. 3 d 768, 777 (9th Cir.), cert. denied

, 135 S. Ct. 710 (2014). W here d ocumentary evidence
pro v i d e s a sufficient basis to decide a petition, the court is

w i t hin its discretion to deny a full hearing

. Phill i p s v. Ornoski

, 6 73 F .3d 1168, 1179 (9th Cir. 2012). “ I n deciding whether to g rant an evidentiary hearing

, a federal court must consider whether such a hearing could enable an applicant to prove the p etition’s factual alleg ations, w hich, if true, would entitle the applicant to fe d eral habeas relief.” Schriro v

. Landrigan , 550 U.S. 465, 474 (2007).

W e conclu d e that the d istrict c o urt did not abuse its discretion in deny i n g an evidentiary hearing

. “[ O] ral testimony and cross-ex amination were not necessary because the documentary evidence submitte d fully p resented the relevant facts.” W

illiams v. W

o odfor d

, 3 8 4 F

. 3d 567, 591 (9th Cir. 2004). The ex p anded record included the declarations of witnesses who would testify at a live hearing

, and Running eag le ma d e n o showing that their testimony would differ materially from t h e ir declarations. The credibility

of these witnesses was not at issue, and could not have rendered their testimony sufficient to show cause under Martinez

.

22 B ecau se R

un n i n g e a g l e so u g h t to p resen t ev id en ce to su p p o rt a sh o w in g o f Ma rtin ez cau s e rath er th an to su p p o r t d irectly a claim raised in state co u rt, w e d o n o t rev iew h is req u est f o r an ev id en tiary h e a rin g

u n d er th e d em an d in g st an d ard o f 2 8 U.S.C. § 2 2 5 4 (e)(2 ). S ee Dicken s , 7 4 0 F.3 d at 1 32 1

.R U N N I N G E A G L E V

. R Y

A N 43

V. Conclusion

Running eag le has no t shown cause for the procedural default of his I A C claims, nor has he shown that f u r t h er district court proceeding s are warranted. W e therefore affirm the district c ourt’s judg ment and order, and its con t i n u e d denial of Running eag le’s habeas petition. As the M a r t inez claims are h ereb y resolved, we lift the stay of the mandate imposed b y o u r J u l y 18, 2012 order. I t may issue in the
reg ular course.

AF F IRMED.