FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SEAN BERNARD RUNNINGEAGLE,

Petitioner-Appellant,

v.

CHARLES L. RYAN, Director,

Arizona Department of

Corrections,

Respondent-Appellee.

No. 07-99026

D.C. No.

CV-98-01903-PGR

OPINION

Appeal from the United States District Court

for the District of Arizona

Paul G. Rosenblatt, Senior District Judge, Presiding

Argued and Submitted February 10, 2016

Pasadena, California

Filed June 10, 2016

Before: Harry Pregerson, Kim McLane Wardlaw,

and Carlos T. Bea, Circuit Judges.

Opinion by Judge Wardlaw
2 RUNNINGEAGLE V. RYAN

SUMMARY*

Habeas Corpus / Death Penalty

The panel affirmed the district court’s denial, on limited

remand, of claims of ineffective assistance of counsel brought

in a habeas corpus petition in a capital case.

The district court originally denied the ineffective

assistance claims as procedurally barred. On appeal, the

panel affirmed the district court’s denial of the habeas

petition but stayed the court of appeals’ mandate and ordered

a limited remand to allow the district court to reconsider its

prior rulings in light of Martinez v. Ryan, 132 S. Ct. 1309

(2012), which announced a new equitable rule allowing a

petitioner to show cause for the procedural default of certain

ineffective assistance claims. On limited remand, the district

court concluded that the petitioner did not show cause under

Martinez, and thus did not excuse the procedural default.

To show cause under Martinez, a petitioner must

demonstrate that the state system in which he initially brought

his ineffective assistance claims required that they be raised

in initial-review collateral proceedings, and did not permit the

petitioner to raise them on direct appeal. He must also show

that the attorney who represented him in post-conviction

review proceedings performed deficiently and thereby

prejudiced his case under the standards of Strickland v.

Washington.

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

been prepared by court staff for the convenience of the reader.
RUNNINGEAGLE V. RYAN 3

The panel held that the district court erred in concluding

that Martinez was inapplicable because, at the time of the

petitioner’s direct appeal, Arizona allowed defendants to

bring ineffective assistance claims on direct appeal. The

panel concluded that in fact, during the relevant period,

Arizona did require petitioners to bring ineffective assistance

claims in initial-review collateral proceedings, not expressly,

but by virtue of the operation of its procedural system. 

Nonetheless, the petitioner failed to show that his postconviction review counsel performed deficiently and to his

prejudice.

The panel affirmed the district court’s judgment and

order, and its continued denial of the habeas petition. The

panel lifted the stay of the mandate and ordered that it would

issue in the regular course.

COUNSEL

Jennifer Y. Garcia (argued), Assistant Federal Public

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

Federal Public Defender’s Office, Phoenix, Arizona, for

Petitioner-Appellant.

Jon G. Anderson (argued), Assistant Attorney General,

Capital Litigation Section; Lacey Stover Gard, Chief

Counsel; Mark Brnovich, Attorney General; Arizona

Attorney General’s Office, Phoenix, Arizona, for

Respondent-Appellee.
4 RUNNINGEAGLE V. RYAN

OPINION

WARDLAW, Circuit Judge:

In 1988, petitioner Sean Bernard Runningeagle was

convicted of two counts of first degree murder in Arizona

state court. He was sentenced to death in 1989, and the

Arizona Supreme Court affirmed his conviction, sentence,

and the denial of his state petition for post-conviction relief. 

State v. Runningeagle (Runningeagle I), 859 P.2d 169 (Ariz.

1993). Runningeagle then petitioned for a federal writ of

habeas corpus, which the district court denied. In 2012, while

Runningeagle’s appeal of that decision was pending before

us, the Supreme Court decided Martinez v. Ryan, 132 S. Ct.

1309 (2012). Martinez announced a new equitable rule that

allows a petitioner to show cause for the procedural default of

certain ineffective assistance of counsel (“IAC”) claims. We

affirmed the district court’s denial ofRunningeagle’s petition,

but also stayed the mandate and ordered a limited remand to

allow the district court to reconsider its prior rulings that

several of Runningeagle’s IAC claims were procedurally

defaulted in light of Martinez. Runningeagle v. Ryan

(Runningeagle II), 686 F.3d 758 (9th Cir. 2012). On remand,

the district court concluded that Runningeagle did not show

cause under Martinez, and thus did not excuse the procedural

default of the IAC claims. Runningeagle appeals.

To show cause under Martinez, a petitioner must

demonstrate, inter alia, that the state system in which he

initially brought his IAC claims required that they be raised

in initial-review collateral proceedings, and did not permit the

petitioner to raise them on direct appeal. He must also show

that the attorney who represented him in post-conviction

review (“PCR”) proceedings performed deficiently and
RUNNINGEAGLE V. RYAN 5

thereby prejudiced his case under the standards of Strickland

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

We hold that the district court erred in concluding that

Martinez was inapplicable because, at the time of

Runningeagle’s direct appeal, Arizona allowed defendants to

bring IAC claims on direct appeal. To the contrary: during

the relevant period, Arizona actually did require petitioners

to bring IAC claims in initial-review collateral proceedings,

not expressly, but by virtue of the operation of its procedural

system. See Trevino v. Thaler, 133 S. Ct. 1911, 1915 (2013). 

The proceedings in this very case demonstrate the operation

of Arizona’s requirement. However, Runningeagle fails to

show that his PCR counsel performed deficiently and to his

prejudice. His IAC claims therefore remain in procedural

default, and do not serve as a basis for federal habeas relief. 

We affirm the district court’s denial of the petition.

I. Factual Background

We again1take the facts as recited by the Arizona

Supreme Court in its 1993 opinion:

In the early morning of December 6, 1987,

Runningeagle, [his cousin Corey] Tilden, and

their two friends Orva and Milford Antone,

were driving around Phoenix. Runningeagle

wanted parts for his car, so the foursome

stopped at the Davis house, which had a car

parked outside. Runningeagle, Tilden and

Orva got out of the car, while Milford

1 Runningeagle II, 686 F.3d at 763–64 (quoting Runningeagle I,

859 P.2d at 171–72); see also id. at 763 n.1.
6 RUNNINGEAGLE V. RYAN

remained passed out drunk in the back seat. 

Runningeagle used his large hunting knife to

remove two carburetors from the Davis car. 

Orva put them and an air scoop in the trunk of

Runningeagle’s car. Tilden and Runningeagle

also stole a floor jack and tool box. Orva took

a bicycle from the open garage.

Herbert and Jacqueline Williams, an elderly

couple, lived next door to the Davises. Mr.

Williams came out of his house and told the

young men to leave or he would call the

police. Orva returned to the car, but

Runningeagle and Tilden approached Mr.

Williams. Runningeagle concealed his knife

by his side. Tilden carried a large, black

flashlight. Runningeagle then began to tease

and scare Mr. Williams with the knife. Mr.

Williams retreated and told Runningeagle to

put the knife away. Mrs. Williams then came

out of the house and yelled at them. Tilden

confronted Mrs. Williams, argued with her,

and then hit her on the side of the head with

the flashlight. Mr. Williams told them to

leave his wife alone, and helped her back into

the house. Runningeagle broke through the

Williams’ door with a tire iron, and he and

Tilden barged in.

The noise awakened a neighbor, who heard

Mrs. Williams crying and the words “bring

him in” spoken by a tall, young man he saw

standing in the Williams carport. The

neighbor called “911,” but by the time the
RUNNINGEAGLE V. RYAN 7

police arrived, Mr. and Mrs. Williams were

dead. Mr. Williams suffered several head

injuries and five stab wounds, three of which

were fatal. Mrs. Williams also suffered

several head injuries, one of which fractured

her skull and was possibly fatal, in addition to

four stab wounds, three of which were fatal.

The police searched the Williams home. The

drawer in which Mrs. Williams stored her

jewelry was open and some jewelry was

missing. They found an empty purse, blood

drops and two bloody shoe print patterns. 

They discovered Runningeagle’s palm print

on the clothes dryer next to the bodies.

Runningeagle discussed the crimes on several

occasions before his arrest. He told his

girlfriend that he had been in a fight with two

people and had hit them “full-force.” He

showed her his car trunk full of the stolen

property. He showed the hood scoop and

carburetors to another friend. Tilden, too,

spoke about the crimes and informed

Runningeagle that an account of the burglary

was on the radio and that “they got there an

hour after we left.”

When the defendants were arrested, the police

found, among other things, the Davis air

scoop with Runningeagle’s prints on it, two

carburetors, the tool box, Mrs. Williams’

wallet and college pin, a large black flashlight

with Tilden’s prints on it, and the Davis
8 RUNNINGEAGLE V. RYAN

bicycle with Runningeagle’s prints on the

wheel rim. A Phoenix Police Department

criminalist matched Runningeagle’s shoes

with the bloody shoe prints found at the

Williams house, and also found that an inked

print of Tilden’s shoes made a pattern similar

to other shoe prints at the house.

Runningeagle, Tilden, and Orva Antone were

indicted on two counts of first degree murder,

and one count each of first degree burglary of

a residence, second degree burglary of a

residence, third degree burglary of a car, theft

of property valued between $500 and $1000,

and theft of property valued between $250

and $500. Orva Antone pleaded guilty to

burglary and testified for the state at the joint

trial.

After a five-week trial, Runningeagle and

Tilden were convicted on July 27, 1988. 

Runningeagle was found guilty of two counts

of first degree murder, two counts of theft,

and one count each of first degree burglary,

second degree burglary, and third degree

burglary. Tilden was convicted of the same

charges except for third degree burglary.

Runningeagle I, 859 P.2d at 171–72.
RUNNINGEAGLE V. RYAN 9

II. Procedural Background

A. Sentencing and Special Verdict

BaltazarIniguez was appointed to represent Runningeagle

at trial and sentencing. Iniguez gathered a total of 15 letters

from Runningeagle’s family members and acquaintances,

which he submitted as mitigation evidence. Iniguez also

presented the direct testimony of several witnesses on

Runningeagle’s behalf at evidentiary hearings, and he

examined or cross-examined several of Tilden’s witnesses,

who were Runningeagle’s family members or acquaintances,

at these hearings.2

Arizona probation officers prepared two presentence

reports (“PSRs”) concerning Runningeagle, which contained

information about his family and social background, criminal

history, health, and use of alcohol and illicit substances. 

These reports quoted Iniguez, who vouched for

Runningeagle’s good character, stated that the murders were

fueled by alcohol, and recommended leniency. It does not

appear from the record that Iniguez gathered outside

information for the probation officers or disputed the

accuracy of the PSRs.

Iniguez successfully petitioned the court under Arizona

Rule of Criminal Procedure 26.5 for two mental health

2 At the first of these hearings, Runningeagle sought the appointment of

new counsel, and stated that Iniguez was “ineffective and inefficient.” 

Iniguez moved to withdraw, citing the “barrier” between himself and his

client, and Runningeagle’s lack of cooperation. The court denied these

requests, and stated that Runningeagle would “have an opportunity to raise

all of these allegations by way of Petition for Post-Conviction Relief.”
10 RUNNINGEAGLE V. RYAN

examinations of Runningeagle. These examinations were

conducted byDoctors M.B. Bayless and Francis A. Enos. Dr.

Bayless diagnosed Runningeagle with antisocial personality

disorder, and Dr. Enos found that his behavioral pattern was

“sociopathic rather than neurotic or psychotic.” Because

Iniguez had requested these examinations under Rule

26.5—against the advice of Tilden’s attorney, Roland J.

Steinle III, who had recommended requesting court funds for

private examinations3—Iniguez’s attempts to exclude Dr.

Bayless’s and Dr. Enos’s reports were unsuccessful, and he

was required to file them with the court.

Before the final sentencing hearing, Iniguez submitted an

eight-page sentencing memorandum. Iniguez argued that

Runningeagle should be spared the death penalty, and should

instead receive two concurrent life sentences. Iniguez

contended that Runningeagle’s mind was impaired by

alcoholic “jungle juice” at the time of the murders; there was

insufficient evidence that Runningeagle, rather than Tilden,

committed the murders; and the murders were out of

character. Iniguez also sought to rebut the anticipated

aggravating factors relied upon by the state. He argued the

killings were not “cruel, heinous and depraved,” there was no

evidence of an expectation of pecuniary gain, and they should

not be considered two separate killings because both occurred

3 Arizona Rule of Criminal Procedure 26.5 provided, “At any time

before sentence is pronounced, the court may order the defendant to

undergo mental health examination or diagnostic evaluation. Reports

under this section shall be due at the same time as the pre-sentence report

unless the court orders otherwise.” According to Steinle, Arizona courts

construed this rule to generally require disclosure of reports for use at

sentencing. Thus, if a Rule 26.5 report contained negative information,

there was no way to prevent the sentencing judge from considering that

information.
RUNNINGEAGLE V. RYAN 11

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

was committed during the commission of the other. Finally,

Iniguez claimed three mitigating factors were present:

Runningeagle was young, intoxicated, and “under unusual or

substantial duress.” Iniguez did not present new evidence in

support of the memorandum, and relied instead on the PSRs

and trial testimony and evidence.

Runningeagle and Tilden were jointly sentenced at a

February 3, 1989 hearing. The court issued a special verdict,

from which it read at the hearing, sentencingRunningeagle to

death and Tilden to two consecutive terms of life

imprisonment. In imposing Runningeagle’s sentence, the

court found that the state had proved three statutory

aggravating circumstances: that the murders were committed

with the expectation of pecuniary gain; that they were

“especially cruel, heinous and depraved”; and that

Runningeagle was convicted of one or more homicides during

the commission of the offense. See Ariz. Rev. Stat. § 13-

703(F)(5), (6), (8) (1988). Upon considering the evidence

submitted by Iniguez, the court found that the only mitigating

circumstance for the murder counts was Runningeagle’s age,

“one day short of 19,” which was not sufficient to call for

leniency.

4 The court found that the testimony and letters from

Runningeagle’s familyand friends did not compel mitigation. 

The court stated that Runningeagle had not shown any feeling

for family or friends, that he was concerned only with

“himself and his own appetites,” and that the psychological

reports indicated that he did not “have the types of feelings or

emotions that people usually have for family or friends.” 

4 The court found that Runningeagle’s burglary and theft counts, but not

the murder counts, were mitigated by a “[h]istory of family problems

although not overly severe.”
12 RUNNINGEAGLE V. RYAN

Although the court quoted at length from the Bayless and

Enos reports at the sentencing hearing, and also considered a

psychological report prepared by Doctor Roger M. Martig for

prior Juvenile Court proceedings, the court stated that it did

not consider these as aggravating circumstances, but neither

did it find that they weighed in favor of mitigation.

In sparing Tilden death, the court found “significant and

considerable differences” between him and Runningeagle. 

The court found that the state had not proved beyond a

reasonable doubt that Tilden participated in the murders with

the expectation of pecuniary gain, though the other two

aggravating factors were present. The court noted that Tilden

had a difficult childhood, but it did not expressly give weight

to this circumstance. It found that psychological evidence

that Tilden suffered from a personality disorder was not, in

itself, a mitigating circumstance. The court found highly

significant the great weight of the evidence suggesting that

Runningeagle, and not Tilden, had personally inflicted the

fatal stab wounds. The court concluded that Tilden had

followed his charismatic, older, more intelligent cousin on the

night of the murders, and that Tilden, unlike Runningeagle,

had a conscience and was capable of rehabilitation. The court

stated, however, that “these comparisons were not used in

aggravation of defendant Runningeagle’s sentence.”

B. PCR and Appellate Proceedings

Following sentencing, Runningeagle commenced PCR

proceedings pro se by filing a form petition for postconviction relief and a petition for writ of coram nobis. The

coram nobis petition alleged that Iniguez had failed to

perform an adequate investigation, mount an effective

defense, or object to inadmissible evidence and prosecutorial
RUNNINGEAGLE V. RYAN 13

misconduct. On March 23, 1990, John M. Antieau was

appointed to represent Runningeagle in the PCR and appellate

proceedings.5 The Arizona Supreme Court stayed

Runningeagle’s direct appeal pending determination of his

PCR petition. The same judge who had presided over trial

and sentencing also presided over the initial PCR

proceedings.

Over the government’s objection, the PCR court granted

Antieau’s motion for the appointment of an investigator,

Mary Durand, and a mental health expert, Doctor Otto

Bendheim. Antieau filed a supplemental petition challenging

Runningeagle’s sentence on eleven grounds, including two

IAC claims for failure to move to sever Runningeagle’s trial

from Tilden’s, and for a deficient closing argument. Antieau

also filed a second supplemental petition in which he

challenged Dr. Bayless’s and Dr. Enos’s diagnoses of

antisocial personality disorder, and requested $1500 in

additional funds so a new doctor, Bendheim, could interview

Runningeagle in prison.

On April 23, 1991, the PCR court summarily dismissed

Runningeagle’s petitions. It found that, in his initial pro se

petition, Runningeagle had not raised a “‘colorable claim’ . . .

of ineffective assistance of trial counsel,” and that even if his

complaints were valid, the evidence against him was

overwhelming, and the result would not have been different. 

The court found that the claims raised in the supplemental

petitions filed by Antieau were “still raisable on direct

appeal.” It denied the request for additional funding for Dr.

Bendheim to prepare a report, which the court viewed as “not

5 Antieau was appointed after Runningeagle successfully sought the

removal of another appointed PCR and appellate counsel.
14 RUNNINGEAGLE V. RYAN

appropriate in the context of post-conviction relief

proceedings.” In addressing this issue, the court opined that

Runningeagle appeared to “take[]one aspect of the Court’s

sentencing as if it were the only basis for the Court’s

determination of the appropriate and lawful sentence.” The

court denied a motion for rehearing filed by Antieau.

Antieau petitioned the Arizona Supreme Court for review

of the PCR court’s denial of relief. This petition was

consolidated with Runningeagle’s direct appeal, which was

also filed by Antieau. On April 20, 1993, the Arizona

Supreme Court affirmed Runningeagle’s conviction and

sentence and the denial of his PCR petition. It reasoned that,

“[b]ecause Runningeagle failed to show that counsel’s

conduct was deficient, the trial court properly dismissed his

petition for post-conviction relief.”

C. Subsequent Proceedings

After the United States Supreme Court denied certiorari

and the Arizona Supreme Court issued its mandate,

Runningeagle initiated pro se a second PCR proceeding,

which was ultimately dismissed because he failed to timely

file a petition. Runningeagle next filed a federal habeas

petition, which was dismissed without prejudice to allow him

to exhaust additional claims in state court.

Runningeagle then initiated a third PCR proceeding in the

Arizona Superior Court: this was the state proceeding in

which the claims raised on this appeal were found

procedurally defaulted. In a 224-page petition filed by a new

attorney, Runningeagle claimed, inter alia, that Iniguez had

performed deficiently by failing to (i) investigate and present

key mitigation evidence; (ii) obtain a competent and
RUNNINGEAGLE V. RYAN 15

independent mental status examination; (iii) develop and

advance a theory that Tilden actually committed the

homicides; and (iv) request the appointment of a second

attorney. On October 21, 1996, the Superior Court dismissed

Runningeagle’s claims and the petition. It held that, even if

the mitigation-evidence claims were “colorable,” they were

procedurally defaulted under Arizona Rule of Criminal

Procedure 32.2(a)(3), and the inculpation and second-counsel

claims were in default and, alternatively, not colorable.6 The

Arizona Supreme Court denied Runningeagle’s petition for

review of these rulings.

On April 15, 1999, Runningeagle filed the amended

federal habeas petition now before us. He raised, among

others, claims that Iniguez was ineffective because he failed

to retain, use, and competently prepare independent mental

health experts, or investigate and present mitigating evidence

at sentencing (“mitigation-evidence IAC claim”), inculpate

Tilden (“inculpation IAC claim”), and request a second

counsel (“second-counsel IAC claim”). On February 6, 2004

6 Runningeagle also claimed that Antieau was constitutionally

ineffective on appeal and in PCR proceedings. The Arizona Superior

Court found this claim precluded, and alternatively dismissed it on the

merits. We reject, however, the government’s suggestion that this

alternative merits ruling is entitled to AEDPA deference. Runningeagle

does not on this appeal seek to relitigate a “claim” regarding PCR

counsel’s performance on which basis his habeas petition could be

“granted” (nor could he under current Supreme Court precedent). See

28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 98 (2011). 

Rather, he seeks to show cause for the procedural default of underlying

trial-level IAC claims on the basis of PCR counsel’s allegedly deficient

performance. The Superior Court’s ruling cannot possibly be construed

to address this issue, as the equitable rule of Martinez had not yet been

announced in 1996.
16 RUNNINGEAGLE V. RYAN

and March 10, 2006, the district court issued interim orders

finding each of these claims procedurally defaulted.

The district court denied Runningeagle’s remaining

claims on the merits, and we granted his request for a

certificate of appealability as to several of these claims. The

Supreme Court decided Martinez on March 20, 2012. On

July 18, 2012, we filed our opinion affirming the district

court’s rulings on the merits of the claims presented on

appeal. Also on July 18, 2012, we granted Runningeagle’s

motion for remand to the district court “for the limited

purpose of reconsidering its procedural default holdings on

Runningeagle’s ineffective assistance of counsel claims . . .

in light of Martinez v. Ryan.”7 On limited remand, the district

court expanded the record and denied Runningeagle’s request

for a further evidentiary hearing. On October 2, 2014, the

district court entered an order holding that Runningeagle had

not shown cause under Martinez for the procedural default of

themitigation-evidence, inculpation, and second-counselIAC

claims, leaving them in default.

III. Standard of Review

We review de novo the district court’s dismissal of a

habeas petition and its procedural default determinations. 

Sexton v. Cozner, 679 F.3d 1150, 1153 (9th Cir. 2012). 

Runningeagle filed his amended federal petition after the

7 By granting this motion, we rejected the government’s argument that

Runningeagle had abandoned any request for relief based on ineffective

assistance of PCR counsel. We similarly reject the government’s

suggestion that we reconsider this ruling. Cf. Ball v. Rodgers, 492 F.3d

1094, 1102 (9th Cir. 2007) (discussing the “exception to the waiver rule

. . . for intervening changes in the law”) (ellipsis in original) (citation

omitted); 9th Cir. R. 27-10(a)(3).
RUNNINGEAGLE V. RYAN 17

effective date of the Antiterrorism and Effective Dealth

Penalty Act of 1996 (AEDPA). Runningeagle II, 686 F.3d at

766. Therefore, any claim that was adjudicated on the merits

in state court is reviewed under the “highly deferential

standards” of AEDPA. Davis v. Ayala, 135 S. Ct. 2187, 2198

(2015); see 28 U.S.C. § 2254(d). Any federally reviewable

claim that was not adjudicated on the merits in state court is

reviewed de novo. See Cone v. Bell, 556 U.S. 449, 472

(2009).

IV. Discussion

A. The Legal Framework of Martinez.

Federal courts generally cannot grant habeas relief for a

claim defaulted in state court “pursuant to an independent and

adequate state procedural rule . . . unless the prisoner can

demonstrate cause for the default and actual prejudice as a

result of the alleged violation of federal law.” Coleman v.

Thompson, 501 U.S. 722, 750 (1991).8 The constitutionally

ineffective performance of counsel, which is “imputed to the

State,” may provide cause, but there is no general

constitutional right to an attorney in PCR proceedings. Id. at

752–54. The Supreme Court in Coleman left unanswered the

question of whether and under what circumstances there may

be a constitutional right to counsel where “state collateral

review is the first place a prisoner can present a challenge to

his conviction.” Id. at 755.

8 Procedural default may also be excused where “failure to consider the

claim[] will result in a fundamental miscarriage of justice.” Coleman,

501 U.S. at 750. Runningeagle does not argue that this exception applies.
18 RUNNINGEAGLE V. RYAN

Without answering that question, the Martinez Court held

that cause may be established for a prisoner’s procedural

default of a claim of ineffective assistance at trial by

“[i]nadequate assistance of counsel at initial-review collateral

proceedings,” i.e., “collateral proceedings which provide the

first occasion to raise a claim of ineffective assistance of at

trial.” 132 S. Ct. at 1315. Martinez stated that this “narrow

exception” to Coleman was an “equitable” one, necessary

because:

When an attorney errs in initial-review

collateral proceedings, it is likely that no state

court at any level will hear the prisoner’s

claim. . . . And if counsel’s errors in an

initial-review collateral proceeding do not

establish cause to excuse the procedural

default in a federal habeas proceeding, no

court will review the prisoner’s claims.

. . . .

Without the help of an adequate attorney, a

prisoner will have . . . difficulties vindicating

a substantial ineffective-assistance-of-trialcounsel claim. Claims of ineffective

assistance at trial often require investigative

work and an understanding of trial strategy. 

When the issue cannot be raised on direct

review, moreover, a prisoner asserting an

ineffective-assistance-of-trial-counsel claim in

an initial-review collateral proceeding cannot

rely on a court opinion or the prior work of an

attorney addressing that claim. To present a

claim of ineffective assistance at trial in
RUNNINGEAGLE V. RYAN 19

accordance with the State’s procedures, then,

a prisoner likely needs an effective attorney.

Id. at 1315–18 (citations omitted). In Trevino v. Thaler,

133 S. Ct. 1911 (2013), the Supreme Court summarized the

four-part test announced in Martinez:

Coleman [contains] an exception, allowing a

federal habeas court to find “cause,” thereby

excusing a defendant’s procedural default,

where (1) the claim of “ineffective assistance

of trial counsel” was a “substantial” claim;

(2) the “cause” consisted of there being “no

counsel” or only “ineffective” counsel during

the state collateral review proceeding; (3) the

state collateral review proceeding was the

“initial” review proceeding in respect to

the “ineffective-assistance-of-trial-counsel

claim”; and (4) state law requires that an

“ineffective assistance of trial counsel [claim]

. . . be raised in an initial-review collateral

proceeding.” 

Id. at 1918 (second and third alterations in original) (citing

Martinez, 132 S. Ct. at 1318–19, 1320–21).

The government does not dispute that the third Martinez

requirement is satisfied: Runningeagle seeks to show cause

based on Antieau’s supposedly deficient representation

during his initial PCR proceeding. We address the remaining

requirements in turn.
20 RUNNINGEAGLE V. RYAN

B. Arizona Law Required Prisoners to Raise IAC Claims in

Initial-Review Collateral Proceedings During the

Relevant Time Period.

We consider at the outset what Arizona law required to

assert an IAC claim at the time Runningeagle brought his

appeal and first petition for post-conviction relief. This is an

appropriate place to begin, because however deficient or

prejudicial the performance of trial or PCR counsel, cause

may be shown under Martinez only if, “under state law,

claims of ineffective assistance of trial counsel must be raised

in an initial-review collateral proceeding.” 132 S. Ct. at

1320. The Supreme Court explained in Trevino that this

requirement could be satisfied where state law did not

explicitly require petitioners to assert IAC claims in initialreview collateral proceedings, but “[t]he structure and design

of the [state] system in actual operation . . . make it virtually

impossible for an ineffective assistance claim to be presented

on direct review.” 133 S. Ct. at 1915 (citation omitted).

The district court held that, at the time Runningeagle

brought his appeal and first petition for post-conviction relief,

Arizona law provided for direct appellate review of IAC

claims. The district court found that Runningeagle, through

Antieau, in fact raised IAC claims in the PCR proceeding,

“and then consolidated those claims with the other issues

raised on appeal.” It concluded that this consolidation

procedure was the functional equivalent of “providing direct

appellate review of ineffectiveness claims.” Accordingly, the

district court held that the procedural default of

Runningeagle’s claims could not be excused under Martinez.

Arizona did not expressly require IAC claims to be raised

in collateral proceedings until 2002, when the Arizona
RUNNINGEAGLE V. RYAN 21

Supreme Court decided State v. Spreitz, 39 P.3d 525 (Ariz.

2002).9 Runningeagle filed his supplemental PCR petition

and appeal in 1990 and 1991, respectively, before Spreitz

became law. However, at this time, the “structure and

design” of Arizona law as set forth by the Arizona Supreme

Court made the meaningful presentation of an IAC claim on

direct review “virtually impossible.” See Trevino, 133 S. Ct.

at 1915 (citation omitted).

In State v. Valdez, 770 P.2d 313 (Ariz. 1989), the Arizona

Supreme Court strongly urged defendants to raise IAC claims

in petitions brought under Arizona Rule of Criminal

Procedure 32, which governs PCR proceedings. Id. at 319. 

The Court stated that it was “reluctant” to decide IAC claims

without the benefit of an evidentiary record that could not be

developed in direct appellate proceedings. Id. at 318. The

Court set forth its recommended procedure: “[a]s a general

matter,” a defendant who seeks to raise an IAC claim during

the pendency of his direct appeal “should file the proper

petition under Rule 32 . . . in the trial court and seek an order

from the appellate court suspending the appeal.” Id. at 319. 

The trial court could then make an evidentiary record and

issue its ruling, and after that, the defendant could move for

consolidation of the post-conviction proceedings and the

direct appeal.

10

Id. The Arizona court system followed the

9 Martinez, which was also brought by a petitioner in the custody of the

State of Arizona, cited Spreitz for the proposition that “Arizona law . . .

did not permit [Martinez’s appellate counsel] to argue on direct appeal that

trial counsel was ineffective.” Martinez, 132 S. Ct. at 1314.

10 In Krone v. Hotham, 890 P.2d 1149 (Ariz. 1995), which was decided

after Runningeagle filed his first PCR petition and appeal, the Arizona

Supreme Court retreated from the Valdez procedure of staying appeals

pending the resolution of Rule 32 proceedings. Krone stated that this
22 RUNNINGEAGLE V. RYAN

Valdez procedure when it decided Runningeagle’s claims: 

Antieau raised IAC claims in a Rule 32 proceeding, and the

Arizona Supreme Court stayed his direct appeal pending that

proceeding, and then consolidated them for appellate review.

In State v. Carver, 771 P.2d 1382 (Ariz. 1989), which was

decided shortly after Valdez, the Arizona Supreme Court

held: “We will not reverse a conviction on ineffective

assistance of counsel grounds on direct appeal absent a

separate evidentiary hearing concerning counsel’s actions or

inactions. Only where we may clearly determine from the

record that the ineffective assistance claim is meritless will

we elect to consider the issue on direct appeal.” Id. at 1390.11

Valdez and Carverrendered it all but futile for an Arizona

criminal defendant to raise an IAC claim on direct appeal.12

At best, he would be required to raise it again by Rule 32

petition. At worst, the claim would be deemed clearly

meritless and denied without any further development of the

record. As in Trevino, there is no principled reason why

procedure had “proved unworkable and resulted in long delays,” and

thereafter would be followed only in “the most exceptional

circumstances.” Id. at 1151–52.

11 Carver’s holding was reiterated in State v. Atwood, 832 P.2d 593, 616

(Ariz. 1992), which was decided after Runningeagle brought his appeal

and first petition for post-conviction relief, and before the Arizona

Supreme Court affirmed Runningeagle’s conviction and sentence and the

denial of his PCR petition.

12 We express no opinion as to whether, before Valdez and Carver were

decided, Arizona law effectively required petitioners to bring IAC claims

in initial-review collateral proceedings. Cf. Lambright v. Stewart,

241 F.3d 1201, 1203 (9th Cir. 2001) (stating that, as of 1984, no Arizona

case required IAC claims to be brought on direct appeal).
RUNNINGEAGLE V. RYAN 23

federal law should “deny defendants the benefit of Martinez

solely because of the existence of a theoretically available

procedure, namely direct appellate review,” which is

“difficult, and in the typical case all but impossible, to use

successfully, and which [Arizona] courts so strongly

discourage defendants from using.” 133 S. Ct. at 1920.

The district court found that Trevino did not apply

because the Valdez procedure of staying the direct appeal and

consolidating it with the Rule 32 proceeding in effect

provided “direct appellate review of ineffectiveness claims.” 

However, this consolidation was merely ministerial. Under

Valdez, direct appeals and Rule 32 petitions remained on

separate tracks, though they ultimately converged at the same

station. Crucially, that convergence would occur after PCR

counsel had raised the issues for review and developed the

evidentiary record before the PCR court. The Arizona

appellate court would concurrently review the direct appeal

and the denial of the PCR petition, as it did in this case, but

this is not the same as reviewing the petition in the first

instance. See Runningeagle I, 859 P.2d at 171. Martinez

makes clear that an appeal from an initial-review collateral

proceeding is distinct from the initial-review collateral

proceeding itself; the equitable excuse applies only to the

latter. 132 S. Ct. at 1320.

Consolidation did not alter the result that, by “structure

and design,” the Arizona system in actual operation made it

“‘virtually impossible’ for an ineffective assistance claim to

be presented on direct review.” Trevino, 133 S. Ct. at 1915

(citation omitted). The Arizona system therefore posed the

grave risk with which Martinez is concerned: that PCR

counsel would fail to raise or develop substantial trial-level

IAC claims, and, because PCR counsel’s performance is not
24 RUNNINGEAGLE V. RYAN

constitutionally reviewable, any deficiency in this regard

would result in “no court . . . review[ing] the prisoner’s

claims.” Martinez, 132 S. Ct. at 1316. The equitable rules of

Martinez and Trevino prevent this inequitable result.

Thus, during the period Runningeagle was litigating his

direct appeal and Rule 32 petition, Arizona law in effect

required the assertion of IAC claims in the initial-review

collateral proceeding. The district court erred in holding

otherwise.

C. Runningeagle Fails to Demonstrate the Prejudicial

Default of a Substantial IAC Claim in PCR Proceedings.

Where, as here, the state criminal justice system satisfies

the characteristics required by Martinez, the petitioner must

make two related showings about the strength of his

particular IAC claim to excuse its default.

First, the IAC claim must be “a substantial one, which is

to say that the prisoner must demonstrate that the claim has

some merit.” Martinez, 132 S. Ct. at 1318. Thus, there must

be a substantial showing of a “reasonable probability that, but

for counsel’s unprofessional errors, the result of the

proceeding would have been different.” See Strickland v.

Washington, 466 U.S. 668, 694 (1984). “A reasonable

probabilityis a probabilitysufficient to undermine confidence

in the outcome.” Id. “When a defendant challenges a death

sentence such as the one at issue in this case, the question is

whether there is a reasonable probability that, absent the

errors, the sentencer . . . would have concluded that the

balance of aggravating and mitigating circumstances did not

warrant death.” Id. at 695.
RUNNINGEAGLE V. RYAN 25

Second, a petitioner must show that “appointed counsel

in the initial-review collateral proceeding, where the claim

should have been raised, was ineffective under the standards

of Strickland v. Washington.” Martinez, 132 S. Ct. at 1318. 

Construing Martinez, we have held that, to fulfill this

requirement, a petitioner must show not only that PCR

counsel performed deficiently, but also that this prejudiced

the petitioner, i.e., that “there was a reasonable probability

that, absent the deficient performance, the result of the postconviction proceedings would have been different.” Pizzuto

v. Ramirez, 783 F.3d 1171, 1178 (9th Cir. 2015) (quoting

Clabourne v. Ryan, 745 F.3d 362, 367 (9th Cir.), proceedings

suspended and mandate stayed (Apr. 2, 2014), and overruled

on other grounds by McKinney v. Ryan, 813 F.3d 798, 818

(9th Cir. 2015) (en banc)). Although the prejudice at issue is

that in PCR proceedings, this is a recursive standard. It

requires the reviewing court to assess trial counsel’s as well

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

a reasonable probability that PCR counsel prejudiced a

petitioner by failing to raise a trial-level IAC claim, we must

also find a reasonable probability that the trial-level IAC

claim would have succeeded had it been raised.13

13 Runningeagle criticizes the Clabourne and Pizzuto framework for

assessing prejudice, which he contends is inconsistent with Martinez and

our en banc opinion in Dickens v. Ryan, 740 F.3d 1302 (9th Cir. 2014). 

He argues that this framework is “impossible-to-meet,” in that it requires

a petitioner to “prove the merits of his ineffective assistance claim before

any evidentiary development of the defaulted, undecided claim just to

clear the cause-and-prejudice hurdle to excuse the claim’s procedural

default.” See Detrich v. Ryan, 740 F.3d 1237, 1245–46 (9thCir. 2013) (en

banc) (plurality opinion) (stating that a prisoner “need not show actual

prejudice resulting from his PCR counsel’s deficient performance, over

and above his required showing that the trial-counsel IAC claim [is]

‘substantial’ under the first Martinez requirement”).
26 RUNNINGEAGLE V. RYAN

None of Runningeagle’s procedurally defaulted IAC

claims satisfies both the substantiality and deficient

performance criteria. Therefore, the procedural default of

these claims is unexcused.

1. The Mitigation-Evidence IAC Claim

We assume, for discussion purposes only, that the

mitigation-evidence IAC claim, Runningeagle’s strongest

claim, is a “substantial” one, and therefore that there is “some

merit” to the contention that Iniguez performed deficiently

and to Runningeagle’s prejudice at sentencing.

14

We decline to revisit the Clabourne/Pizzuto standard. Assuming

“substantial” claims and deficient performance of PCR counsel,

Runningeagle could not ultimately obtain relief even under his preferred

standard. Once default was excused, he would still need to prevail on the

merits of the claim itself, which he is unable to do on any of his three

claims. Runningeagle has had the opportunity to fully develop in the

district court the evidentiary basis for his procedurally defaulted IAC

claims. Under these circumstances, there is no meaningful difference

between finding a claim in default and reviving it but denying it on its

merits. There was no reasonable probability that PCR proceedings would

have reached a different result if PCR counsel had raised the defaulted

claim. Thus, were we to find cause for default under the Detrich

plurality’s proposed standard, we would still deny the revived claim on its

merits, because there was no reasonable probability that trial and

sentencing proceedings would have had a different result if trial counsel

had performed effectively.

14 Martinez suggests, via a “Cf.” citation to Miller-El v. Cockrell,

537 U.S. 322 (2003), that the substantiality standard is comparable to the

standard for a certificate of appealability to issue under 28 U.S.C.

§ 2253(c)(2). Martinez, 132 S. Ct. at 1318–19. Under this permissive

standard, a petitioner need show only that “jurists ofreason could disagree

with the district court’s resolution of his constitutional claims or that

jurists could conclude the issues presented are adequate to deserve

encouragement to proceed further.” Miller-El, 537 U.S. at 327.
RUNNINGEAGLE V. RYAN 27

a. Antieau’s Performance Was Not Deficient.

Under Martinez’s recursive framework, the next step is to

evaluate PCR counsel’s performance and its effect. 

Runningeagle contends that PCR counsel, Antieau, was

ineffective for failing to investigate the failure to investigate

by his predecessor, trial counsel Iniguez.

There is little record evidence, one way or the other,

bearing on whether Antieau’s performance in PCR

proceedings was reasonable “under prevailing professional

norms.” Strickland, 466 U.S. at 688. First, Durand, the

investigator appointed to assist Antieau in the PCR

proceedings, declared in 2013 that Antieau was

“overwhelmed by the case,” was “not always prepared,” and

“did not perform adequately or appropriately”; that Durand

“suspected that he had poly-substance abuse issues, including

a problem with alcohol”; and that she did not recall “doing

any investigative work on either the trial or sentencing

portions of Runningeagle’s case.” This equivocal

declaration, signed more than 20 years after the fact, does not

establish ineffective performance. Durand declared that she

did not remember performing investigative work, not that she

did not perform it. One of Antieau’s contemporaneous filings

in the PCR proceedings, which stated that Durand had “not

yet completed her work,” undercuts her recollection.

Second, Runningeagle faults Antieau for failing to

provide Dr. Bendheim, the mental health expert appointed in

PCR proceedings, with materials outside the trial record. But

it is not necessarily ineffective to tailor one’s investigations

to limitations of time and money, see id. at 681, and, given

Dr. Bendheim’s preliminary impression that the appropriate

diagnosis for Runningeagle could have been the same as that
28 RUNNINGEAGLE V. RYAN

of his co-defendant, who received a life sentence,

Runningeagle does not show that Antieau’s pursuit of this

lead and forbearance of others was a prejudicial strategic

choice at the time.

Third, Runningeagle suggests that, had Antieau framed

his request for additional funding for Dr. Bendheim

differently, he likely would have received it. This is both

speculative, and smacks of the judgment in hindsight

forbidden by Strickland, id. at 680. Moreover,

Runningeagle’s prognostication of what likely would have

occurred is contradicted by the PCR court’s statement that

“Petitioner . . . has taken one aspect of the Court’s sentencing

as if it were the only basis for the Court’s determination of

the appropriate and lawful sentence.”

Finally, Runningeagle observes that the bulk of the claims

Antieau raised in his supplemental PCR petition were

dismissed for being raisable on direct appeal. This, too,

smacks of hindsight, and does not speak to whether capable

PCR counsel would have expected this outcome or whether

it was typical of Arizona PCR proceedings at the relevant

time.

Given the “highly deferential” standard under which we

evaluate Antieau’s performance, and the paucity of evidence

thatAntieau performed deficiently—which Runningeagle had

a full opportunity to develop in district court following our

limited remand—Runningeagle fails to overcome the “strong

presumption that counsel’s conduct falls within the wide
RUNNINGEAGLE V. RYAN 29

range of reasonable professional assistance.”15Id. at 689

(citation omitted). Runningeagle therefore cannot showcause

to excuse the default of the mitigation-evidence IAC claim

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

b. Antieau’s Failure to Raise the MitigationEvidence IAC Claim in PCR Proceedings Was

Not Prejudicial.

Even if we were to conclude that Antieau’s alleged failure

to investigate and present the mitigation-evidence IAC claim

in PCR proceedings was deficient, this claim would

nevertheless fail for lack of a showing of prejudice.

Similarly, to pretermit a lengthy and ultimately fruitless

discussion of what Iniguez did and did not do during his

representation of Runningeagle, others’ observations and

recollections of Iniguez, and appropriate sentencing strategies

15 It is not necessary here to delineate precisely what PCR counsel’s

duties are, and how they are similar to or different from those of trial or

appellate counsel. Martinez contemplates that effective PCR counsel may

investigate “evidence outside the trial record” to determine whether a triallevel IAC claim may be raised, 132 S. Ct. at 1318, but Martinez is silent

as to the scope of the duty to investigate in PCR proceedings. The

effectiveness of PCR counsel is evaluated “under the standards of

Strickland,” id., but before Martinez there was no occasion to apply

Strickland’s constitutional standard in the PCR setting, where there is no

established constitutional right to counsel. Strickland is crystal-clear,

however, that effective performance is measured not by reference to any

“set of detailed rules,” but rather by assessing “the reasonableness of

counsel’s challenged conduct on the facts of the particular case, viewed

as of the time of counsel’s conduct.” 466 U.S. at 688–90. Even if we

accept Runningeagle’s contention that PCR counsel has a broad duty to

investigate and preserve potentially meritorious trial-level IAC claims,

Runningeagle simply does not carry his burden to show that Antieau

“made errors so serious that [he] was not functioning as . . . ‘counsel.’” 

Id. at 687.
30 RUNNINGEAGLE V. RYAN

and sources of standards of care, we assume arguendo that

Iniguez’s investigation and presentation of mitigation

evidence was deficient for purposes of Strickland. See

Strickland, 466 U.S. at 697 (“The object of an ineffectiveness

claim is not to grade counsel’s performance. If it is easier to

dispose of an ineffectiveness claim on the ground of lack of

sufficient prejudice . . . that course should be followed.”).

Runningeagle contends that Iniguez prejudiced his

defense during the penalty phase by failing to investigate or

present key mitigation evidence. Runningeagle identifies

several areas of his life that he argues Iniguez left

unexplored: his difficult early childhood; his social and

educational history; his medical background; his use of

alcohol; the effect of his Native American heritage on his

behavior and demeanor; and mental health evidence that he

claims invalidates the diagnosis of antisocial personality

disorder and may support a diagnosis of Post-Traumatic

Stress Disorder (“PTSD”). Runningeagle also faults Iniguez

for mishandling the request of expert reports under Rule 26.5,

and failing to provide Doctors Bayless and Enos and the

probation officers with the evidence Iniguez allegedly would

have uncovered had he adequately investigated these areas.

i. Much of Runningeagle’s Newly Offered

Evidence Is Cumulative.

Iniguez examined or cross-examined a number of

Runningeagle’s family members and acquaintances at

evidentiary hearings, and solicited 15 letters on his behalf. 

This testimony and evidence detailed Runningeagle’s

childhood circumstances, including his mother’s alcoholism,

his social and educational history, and his medical problems

as a child. The PSRs also described Runningeagle’s troubled
RUNNINGEAGLE V. RYAN 31

family background, criminal history, peripatetic education

and social circumstances, and history of childhood illness and

injury.

16 The sentencing court considered these materials

when it decided which sentence to impose.

The pertinent new evidence that Runningeagle offers

includes the declarations of family members, classmates, exgirlfriends, and the parents of one ex-girlfriend; and medical,

educational, and juvenile records. This evidence does not

materially expand upon what was already before the

sentencing court. For instance, it is troubling to learn that, as

a child, Runningeagle lived in a squalid house, surrounded by

adults with substance abuse problems, who offered little

nurturing; that he frequently observed violence among family

members; and that he was sometimes so hungry, he would eat

Vitamin C tablets. But this information does not alter the

sentencing profile that was before the court. This included

the letters, live testimony, and PSR that described “a great

deal of dysfunction in the family,” a house with “very little

furniture and household provisions,” in which there was

frequently “no food,” and circumstances that led

Runningeagle’s probation officer to be “tempted on more

16 Runningeagle contends the PSRs were “largely erroneous and

incomplete.” He takes particular issue with the statement in the earlier of

the two reports that “[w]ith the exception of drinking problems on the part

of both his mother and stepfather, the defendant experienced no significant

difficulties during his youth.” However, the second PSR contradicted the

first, and provided several examples of Runningeagle’s childhood

struggles. The second PSR stated that Runningeagle himself denied

having “any dysfunction in his family,” and that the new and troubling

information, which was “contrary to the defendant’s statement,” came

from his juvenile probation officer. Cf. Strickland, 466 U.S. at 691

(“[W]hat investigation decisions are reasonable depends critically on”

“information supplied by the defendant.”).
32 RUNNINGEAGLE V. RYAN

than one occasion to contact Child Protective Services.” 

Additional details aboutRunningeagle’s childhood sicknesses

and injuries, or the vouchings of more remote acquaintances,

likewise would not have affected the balance of mitigating

against aggravating circumstances. See Strickland, 466 U.S.

at 695; see also Bobby v. Van Hook, 558 U.S. 4, 11–12

(2009).

Runningeagle also argues that Iniguez did not properly

investigate or present mitigation evidence regarding his use

of alcohol. However, the court was aware that Runningeagle

was intoxicated at the time of the murders. The presentence

reports and Dr. Enos’s report each made reference to

Runningeagle’s problems with alcohol. Further, Iniguez’s

sentencingmemorandum argued that Runningeagle’s alcohol

use was a basis for leniency, and referred to trial evidence

that, on the night of the murders, Runningeagle had been

“drinking a powerful intoxicating liquor called Jungle Juice

which is supposedly a mixture of Everclear and fruit juices. 

There is also evidence that defendant was drinking beer as

well.” Once again, the new evidence Runningeagle offers as

to this issue is cumulative, and does not create a reasonable

probability that the sentencer would have differentlybalanced

aggravating and mitigating circumstances. Strickland,

466 U.S. at 695.

ii. The New Mental Health and Cultural

Evidence Is Equivocal.

The only new evidence offered byRunningeagle that does

not merely elaborate upon what was already in the record

concerns his mental health and the effect of his Native

American cultural background on his manner of expressing

himself. This evidence consists of (1) a 13-paragraph
RUNNINGEAGLE V. RYAN 33

declaration of psychologist Katherine DiFrancesca, dated

August 20, 1996; (2) a 44-page report prepared by forensic

psychologist Charles Harris Heller, dated July 17, 2006; and

(3) a two-page, unsworn letter from psychiatric consultant

Pablo Stewart to Runningeagle’s habeas counsel, dated

January 22, 2013. As the district court correctly concluded,

this evidence is “equivocal” at best, and is insufficient to

demonstrate Strickland prejudice.

Dr. DiFrancesca’s affidavit was based on two personal

meetings with Runningeagle, the Enos, Bayless, and Martig

reports, juvenile and medical records, and social history

information. Dr. DiFrancesca opined that Runningeagle was

an alcoholic, suffered from “psychological and mental

disorders resulting from his alcoholism,” and had a

conscience, and that the diagnosis of antisocial personality

disorder was likely incorrect. She further opined that

Runningeagle did not show his emotions publicly, including

at his court proceedings, because he was raised within Native

American culture, but that he felt “genuine remorse and

shame” for the killings. Dr. DiFrancesca gave no affirmative

diagnosis.

Dr. Heller’s report was based upon a forensic examination

of Runningeagle, his review of a variety of records, and his

expertise in Native American mental health and culture,

which he developed while providing mental health services

to the Cherokee Nation of Oklahoma. Dr. Heller opined that

Runningeagle had “severe alcoholism,” as well as “indicators

of post-traumatic stress which are unique to his childhood as

a Native American child in Phoenix and . . . multiple

traumatic experiences.” Dr. Heller suggested that Dr. Bayless

and Dr. Enos had wrongly diagnosed Runningeagle with

antisocial personality disorder, because clinicians most
34 RUNNINGEAGLE V. RYAN

familiar with Caucasian patients tend to misdiagnose Native

Americans and fail to perceive symptoms of stress and

anxiety. However, Dr. Heller found that Runningeagle “does

not meet full criteria for PTSD,” although he criticized these

“classical” criteria as they applied within the chronically

stressful environment encountered by many Native

Americans. Dr. Heller opined that “the likely reason why

[Runningeagle] fails to meet full diagnostic criteria for PTSD

is because he tends to minimize his symptoms in order to

adhere to his false sense of self.” Dr. Heller diagnosed

Runningeagle with “an anxiety disorder not otherwise

specified with PTSD features.”

Dr. Stewart wrote that he interviewed Runningeagle for

five hours, and had reviewed “a variety of social history

documents including trial court proceedings, witness

declarations, medical-mental health-school records, custodial

records and the psychological evaluation of Dr. Heller dated

July 17, 2006.” He opined “to a reasonable degree of medical

certainty[] that Mr. Runningeagle currently suffers from

Posttraumatic Stress Disorder and that he suffered from this

condition at the time of the offenses for which he has been

sentenced to death.” Dr. Stewart also speculated that

Runningeagle may have suffered from Autistic Spectrum

Disorder, Major Depressive Disorder, and Substance-Related

Disorder at the time of the killings, but that further evaluation

was needed as to these conditions.17

Runningeagle argues that, had Iniguez provided capable

mental health professionals with complete records, alongwith

17 Although Stewart’s letter referred to an imminent diagnostic visit with

Runningeagle scheduled for February 4, 2013, as of October 2, 2014, the

district court had not received any evidence of further tests.
RUNNINGEAGLE V. RYAN 35

supporting expert analysis of his Native American cultural

expression, the experts would have produced reports that

looked more like the newly submitted materials than the Enos

and Bayless reports, which Runningeagle contends should

never have been presented to the sentencing court. These

arguments are not persuasive.

First, the sentencing court stated expressly that, although

it did not treat the Bayless and Enos reports as sufficient

mitigating evidence, it also did not “use[] the information or

the conclusions in these reports as aggravating

circumstances.” Thus, had Iniguez successfully excluded

these reports, Runningeagle’s balance of mitigating and

aggravating circumstances would have remained the same,

according to the sentencing judge.

Second, while the court remarked at the sentencing

hearing and in its special verdict that Runningeagle had not

shown empathy for the victims, and displayed little emotion

for his family and friends, this was not the basis for its

sentence. On the day of the sentencing hearing, the court

observed that Runningeagle had “expressed some feelings

towards his family or friends,” but this did not change its

conclusions. The court focused not on Runningeagle’s

apparent lack of affect, but on the thrill he apparently derived

from committing the crimes, including the murders. Doctors

DiFrancesca and Heller explained why people raised within

a Native American culture might suppress negative emotions,

downplay family conflict, or poke fun at themselves, but

there was no evidence that the laughter, joy, and boasting

following the murders was a shared form of cultural

expression in response to heinous acts rather than an
36 RUNNINGEAGLE V. RYAN

expression personal to Runningeagle.18 Thus, it is speculative

to suggest that expert testimony about Native American

culture would have altered Runningeagle’s sentence.

Finally, even if there was some set of steps Iniguez should

have taken that would have led his mental health experts to

produce reports more like Doctors DiFrancesca’s, Heller’s,

and Stewart’s—a speculative and hindsight-plagued

assumption—these reports are not of material mitigating

weight. Dr. DiFrancesca gave no affirmative diagnosis. Dr.

Heller used qualifying language, and concluded that

Runningeagle did not meet the full diagnostic criteria for

PTSD. Dr. Stewart, who projected the greatest certainty in

his diagnosis, produced it more than 20 years after the crimes

were committed, and provided no supporting analysis. Our

precedent asks us to examine whether “the difference

between the evidence that could have been presented and that

which actually was presented is sufficient to ‘undermine

confidence in the outcome’ of the proceeding.” Duncan v.

Ornoski, 528 F.3d 1222, 1240 (9th Cir. 2008) (quoting

Strickland, 466 U.S. at 694). Runningeagle fails to

demonstrate Strickland prejudice under this standard. See

Leavitt v. Arave, 646 F.3d 605, 614 (9th Cir. 2011) (“Such

[diagnostic] opinions, which couch results in tentative

language, are simply not enough to show prejudice.”);

Rhoades v. Henry, 638 F.3d 1027, 1050 (9th Cir. 2011)

(“Speculation about potential brain dysfunctions or disorders

‘is not sufficient to establish prejudice.’”) (citation omitted);

cf. id. (“The mitigating value of [Dr. Pablo] Stewart’s most

18 The sentencing court noted that Tilden, whom Runningeagle concedes

came from an “almost identical background[],” did not display the same

positive “degree of relishing” as Runningeagle, and showed remorse and

emotion.
RUNNINGEAGLE V. RYAN 37

concrete assessment, that Rhoades ‘does suffer’ from

Post-traumatic Stress Disorder (PTSD), is lessened because

his diagnosis admittedly does not satisfy the requirements of

DSM–IV for this condition.”).

There is no “reasonable probability” that, had Iniguez

presented the new evidence, separately or collectively, “the

sentencer . . . would have concluded that the balance of

aggravating and mitigating circumstances did not warrant

death.” Strickland, 466 U.S. at 695. Therefore, even

assuming deficient performance by Antieau and Iniguez,

Runningeagle cannot show cause for the default of the

mitigation-evidence IAC claim. Martinez, 132 S. Ct. at 1318;

Pizzuto, 783 F.3d at 1178.

2. The Inculpation IAC Claim

At trial, “Runningeagle’s defense rested on the theory that

the state failed to meet its burden of proof.” Runningeagle II,

686 F.3d at 777. Runningeagle contends that this strategy

was objectively unreasonable, and Iniguez should have

argued at trial and sentencing that Tilden was the one who

killed the Williamses, and that he was the “leader” of the

group on the night of the murders. Runningeagle fails to

show that this was a substantial IAC claim, much less that

Antieau performed deficiently or prejudicially by failing to

raise it in PCR proceedings.

No record or extra-record evidence supports the theory

that Tilden personally killed either victim. Although it is true

that the government’s case against Runningeagle relied

primarily on circumstantial evidence, the evidence that

Runningeagle—not Tilden—stabbed the Williamses to death
38 RUNNINGEAGLE V. RYAN

was overwhelming.

19 Runningeagle’s theory that Tilden

could have been the killer is based on Orva Antone’s

testimony that he witnessed Tilden striking Mrs. Williams in

the head with a flashlight, and the testimony of a medical

expert, Dr. George Bolduc, on cross-examination that these

“blunt force injuries of the head could have been of a fatal

nature.” However, Dr. Bolduc consistently testified that Mrs.

Williams’s death was caused by a perforated heart, liver, and

aorta, due to stab wounds through the chest and abdomen. In

context, Dr. Bolduc’s description of the blunt force injuries

as potentially “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 As we summarized this evidence previously:

[T]he police found Runningeagle’s palm print on the

clothes dryer next to the victims’ bodies and matched

Runningeagle’s shoes with the bloody shoe prints found

at the house. Runningeagle discussed the crimes

several times before his arrest and told his

girlfriend—who testified at trial, and to whom he

showed his car trunk full of the property stolen from the

Williamses—that “he had been in a fight with two

people and had hit them ‘full-force.’” When the police

arrested Runningeagle, they found the Williamses’

stolen property. The evidence is even stronger in light

of Antone’s testimony that Runningeagle taunted and

threatened the Williamses with his knife, waved the

knife at them as they retreated, and then broke through

the Williamses’ door with a tire iron after the

Williamses tried to get away.

Runningeagle II, 686 F.3d at 770 (citations omitted); see also

Runningeagle I, 859 P.2d at 174 (“The trial court . . . found Runningeagle

in fact killed the victims, and we agree.”).
RUNNINGEAGLE V. RYAN 39

Runningeagle suggests that Iniguez could have swayed

the judge or jury by uncovering and presenting evidence of

Tilden’s “violent past.” However, this evidence would have

been inadmissible at trial under Arizona Rule of Evidence

404(a), which prohibits the introduction of propensity

evidence to prove that an individual acted “in conformity

therewith on a particular occasion.”20 Even if this evidence

could have been presented at sentencing, there is no showing

that it could have possibly led Runningeagle, to whom the

evidence overwhelmingly pointed as the killer, to receive a

reduced sentence. As we previously concluded, “the trial

court’s detailed Special Verdict makes clear that the likely

result of further inculpation of Tilden was a death sentence

for Tilden and not a life sentence for Runningeagle.” 

Runningeagle II, 686 F.3d at 771–72.

Because Runningeagle fails to show that the inculpation

IAC claim was a “substantial” one of “some merit,” the

procedural default of this claim is not excused under

Martinez. 132 S. Ct. at 1318.

3. The Second-Counsel IAC Claim

Runningeagle argues that Iniguez provided

constitutionally deficient representation by failing to request

the appointment of second counsel. Once again,

Runningeagle does not show that this is a substantial IAC

claim for purposes of Martinez.

20 Arizona Rule of Evidence 404 was amended effective November 1,

1988, after trial and before sentencing. The quoted language appears in

the codification in effect at each time.
40 RUNNINGEAGLE V. RYAN

Runningeagle relies on the 1989 ABA Guidelines, which

stated that “[i]n cases where the death penalty is sought, two

qualified attorneys should be assigned to represent the

defendant.” However, the Supreme Court has stressed that,

while ABA Guidelines may be “evidence of what reasonably

diligent attorneys would do,” they do not define counsel’s

federal constitutional duty to “make objectively reasonable

choices.” Van Hook, 558 U.S. at 8–9 (citation omitted). 

Further, the Supreme Court has cautioned against the

inference of per se rules of reasonableness from professional

standards “so detailed that they would interfere with the

constitutionally protected independence of counsel and

restrict the wide latitude counsel must have in making tactical

decisions.” Id. at 8 n.1 (citation omitted). The 1989

Guidelines are not, standing alone, enough to raise a

substantial IAC claim. Rather, “[t]rial counsel cannot be said

to be constitutionally ineffective [solely] for deciding not to

bring in co-counsel,” and, to raise a substantial claim,

Runningeagle must present evidence of “some reason . . .

why the first lawyer is unable to provide adequate

representation.” Allen v. Woodford, 395 F.3d 979, 998 (9th

Cir. 2005) (alterations in original) (citation omitted).

Runningeagle observes that Tilden’s counsel, Steinle, an

experienced capital defense lawyer, obtained second counsel

to assist him. Runningeagle also presents a September 27,

1988 letter from local counsel to Iniguez offering to assist

with the sentencing hearing. This letter states that Iniguez

had not returned counsel’s earlier call. Finally, Newman, the

investigator who interviewed Iniguez in 1994, declared that

Iniguez stated that he felt “overwhelmed” by Runningeagle’s

case.
RUNNINGEAGLE V. RYAN 41

Runningeagle makes no freestanding showing of

prejudice caused by any deficient performance, and so he

cannot show that Iniguez performed deficiently by failing to

request the appointment of second counsel.21 Because

Runningeagle’s second-counsel IAC claim is insubstantial, he

fails to show cause to excuse its default under Martinez.

D. The District Court Did Not Abuse Its Discretion by

Denying Runningeagle’s Request for an Evidentiary

Hearing.

The district court granted Runningeagle’s motion to

expand the record with a number of the exhibits described

above. However, it denied Runningeagle’s request for an

evidentiary hearing at which he sought to present live

testimony from Tilden’s counsel, Drs. Stewart and Heller,

trial defense investigator Gloria Castillo, mitigation fact

witnesses, and experts in mitigation and capital defense. On

this appeal, Runningeagle contends that, if Martinez cause is

not shown outright, he is entitled to further factual

development in district court.

21 Although we have assumed that Runningeagle’s mitigation-evidence

IAC claim is “substantial,” there is no demonstrated nexus between

Iniguez’s performance during the penalty phase and his lack of cocounsel. Even if such a nexus existed, Runningeagle would be unable to

show cause for the default of the second-counsel IAC claim. As we have

discussed, Antieau’s failure to raise the mitigation-evidence IAC claim in

PCR proceedings was not prejudicial. Likewise, Runningeagle cannot

show that Antieau’s failure to raise the second-counsel IAC claim was

prejudicial, where the supposed prejudice caused by the underlying

allegedly deficient performance—failure to investigate and properly

present mitigation evidence—is identical. We reject Runningeagle’s

cumulative error argument, which would require us to accumulate a

number of trial-level IAC claims that we have found insubstantial or

unsuccessful on the merits in this and our prior opinion.
42 RUNNINGEAGLE V. RYAN

We review for an abuse of discretion a district court’s

determination that a petitioner is not entitled to an evidentiary

hearing.

22 Hurles v. Ryan, 752 F.3d 768, 777 (9th Cir.), cert.

denied, 135 S. Ct. 710 (2014). Where documentary evidence

provides a sufficient basis to decide a petition, the court is

within its discretion to deny a full hearing. Phillips v.

Ornoski, 673 F.3d 1168, 1179 (9th Cir. 2012). “In deciding

whether to grant an evidentiary hearing, a federal court must

consider whether such a hearing could enable an applicant to

prove the petition’s factual allegations, which, if true, would

entitle the applicant to federal habeas relief.” Schriro v.

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

We conclude that the district court did not abuse its

discretion in denying an evidentiary hearing. “[O]ral

testimony and cross-examination were not necessary because

the documentary evidence submitted fully presented the

relevant facts.” Williams v. Woodford, 384 F.3d 567, 591

(9th Cir. 2004). The expanded record included the

declarations of witnesses who would testify at a live hearing,

and Runningeagle made no showing that their testimony

would differ materially from their declarations. The

credibility of these witnesses was not at issue, and could not

have rendered their testimony sufficient to show cause under

Martinez.

22 Because Runningeagle sought to present evidence to support a

showing of Martinez cause rather than to support directly a claim raised

in state court, we do not review his request for an evidentiary hearing

under the demanding standard of 28 U.S.C. § 2254(e)(2). See Dickens,

740 F.3d at 1321.
RUNNINGEAGLE V. RYAN 43

V. Conclusion

Runningeagle has not shown cause for the procedural

default of his IAC claims, nor has he shown that further

district court proceedings are warranted. We therefore affirm

the district court’s judgment and order, and its continued

denial of Runningeagle’s habeas petition. As the Martinez

claims are hereby resolved, we lift the stay of the mandate

imposed by our July 18, 2012 order. It may issue in the

regular course.

AFFIRMED.