FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARY WALLACE WILLIAMS,

Petitioner-Appellant,

v.

TIMOTHY FILSON, Warden; ADAM

PAUL LAXALT, Attorney General,

Respondents-Appellees.

No. 13-99002

D.C. No.

2:98-cv-00056-

PMP-VCF

Appeal from the United States District Court

for the District of Nevada

Philip M. Pro, District Judge, Presiding

CARY WALLACE WILLIAMS,

Petitioner-Appellant,

v.

TIMOTHY FILSON, Warden; ADAM

PAUL LAXALT, Attorney General,

Respondents-Appellees.

No. 17-15768

D.C. No.

2:98-cv-00056-

APG-VCF

Appeal from the United States District Court

for the District of Nevada

Andrew P. Gordon, District Judge, Presiding
2 WILLIAMS V. FILSON

CARY WALLACE WILLIAMS,

Petitioner,

v.

TIMOTHY FILSON, Warden; ADAM

PAUL LAXALT, Attorney General of

the State of Nevada,

Respondents.

No. 17-71510

OPINION

Application to File Second or Successive Petition

Under 28 U.S.C. § 2254

Argued and Submitted September 20, 2017

San Francisco, California

Filed November 9, 2018

Before: Marsha S. Berzon, Paul J. Watford,

and John B. Owens, Circuit Judges.

Opinion by Judge Watford
WILLIAMS V. FILSON 3

SUMMARY*

Habeas Corpus / Death Penalty

The panel affirmed in part and reversed in part the district

court’s denial of Cary Williams’ first federal habeas corpus

petition challenging his Nevada murder conviction and death

sentence, and remanded for an evidentiary hearing on one of

Williams’ penalty-phase ineffective assistance of counsel

claims; affirmed the district court’s denial of his motion for

relief under Fed. R. Civ. P. 60(b); and denied Williams’

application to file a second or successive federal habeas

petition.

The panel held that Williams is entitled to equitable

tolling between the date of the one-year AEDPA deadline for

filing a federal habeas petition and the date he filed his

amended federal petition, and that all of the claims asserted

in the amended petition are therefore timely. Because

Williams is entitled to equitable tolling even if the claims

asserted in the original and amended opinions do not share a

common core of operative facts, the panel did not need to

decide whether the district court’s application of the relationback standard from Mayle v. Felix, 545 U.S. 644 (2005), is

correct. The panel remanded for further proceedings as to the

claims the district court dismissed based solely on the

assumed untimeliness of the amended petition.

Applying AEDPA deference, the panel held that the

district court did not abuse its discretion in denying an

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

been prepared by court staff for the convenience of the reader.
4 WILLIAMS V. FILSON

evidentiary hearing on Williams’ claim that his trial counsel

failed to discover and present evidence that he suffers from

brain damage. Reviewing de novo, the panel held that the

district court did abuse its discretion in denying a hearing on

Williams’ claim that trial counsel unreasonably failed to

investigate and present substantial mitigating evidence

regarding his abusive and traumatic childhood.

The panel held that the district court did not err by

denying Williams’ request for an evidentiary hearing on his

claims that trial counsel rendered ineffective assistance

during the guilt phase by failing to prepare an adequate

defense and during the penalty phase by failing to retain a

medical expert who could rebut the state’s evidence that the

murder involved torture. The panel held that the district court

properlyheld that it could not consider documentaryevidence

as to the merits of those claims because Williams did not

submit that evidence to the state courts in the manner

required under state law. The panel rejected Williams’

separate argument that he is entitled to have the documentary

evidence considered under the rule subsequently established

in Martinez v. Ryan, 566 U.S. 1 (2012). The panel concluded

that the evidence contained in the declarations at issue does

not place these claims in a significantly different and stronger

posture such that they must be deemed “new” claims not

previously presented to state courts.

The panel held that Williams’ constitutional challenges to

Nevada’s “avoid lawful arrest” aggravating circumstance,

Nev. Rev. Stat. § 200.033(5) (1981), lacked merit, even

reviewing the merits de novo. The panel rejected Williams’

contention that the aggravated circumstance is faciallyinvalid

under the Eighth Amendment because it is too vague and

because it fails to adequately narrow the class of death-
WILLIAMS V. FILSON 5

eligible defendants. The panel also rejected Williams’

contention that, as applied to him, the aggravating

circumstance violates the Ex Post Facto Clause and the

Fourteenth Amendment’s Due Process Clause because he

lacked adequate notice at the time he committed the offense

that § 200.033(5) could be applied to the facts of his crime. 

The panel held that Nev. Rev. Stat. § 34.726, which

imposes a general one-year deadline for the filing of petitions

for post-conviction relief, is an independent and adequate

state procedural bar to federal review. The panel therefore

affirmed the district court’s dismissal of several of Williams’

claims as procedurally defaulted under that statute. Because

all of the claims asserted in Williams’ amended petition are

timely under AEDPA, the panel reversed the district court’s

dismissal of five ineffective-assistance claims and remanded

for the district court to determine in the first instance whether

Williams’ procedural default on those claims is excused

under Martinez.

The panel assumed without deciding that Williams’

motion under Rule 60(b) was not a disguised second or

successive petition. The panel wrote that Williams is not

entitled to relief because even if Hurst v. Florida, 136 S. Ct.

616 (2016), established the new rule Williams urges, that rule

would not apply retroactively in cases on collateral review. 

The panel wrote that Williams is also not entitled to relief

because his Rule 60(b) motion rests on the incorrect premise

that the Nevada Supreme Court did not apply a beyond-areasonable-doubt standard when it reweighed whether

aggravating factors outweighed a mitigating circumstance. 

The panel denied Williams’ application to file a second or

successive petition based on Hurst. 
6 WILLIAMS V. FILSON

COUNSEL

Michael Pescetta (argued), Randolph M. Fiedler, and Albert

Sieber, Assistant Federal Public Defenders; Rene L.

Valladares, Federal Public Defender; Office of the Federal

Public Defender, Las Vegas, Nevada; for PetitionerAppellant.

Victor-Hugo Schulze II (argued), Senior Attorney General;

Adam Paul Laxalt, Attorney General; Office of the Attorney

General, Las Vegas, Nevada; for Respondents-Appellees.

OPINION

WATFORD, Circuit Judge:

Cary Williams was sentenced to death for the murder of

Katherine Carlson in 1983. This is the appeal from the

district court’s denial of his first federal petition for a writ of

habeas corpus. In the main appeal, we address the three

issues on which the district court granted a certificate of

appealability, as well as two uncertified issues that Williams

raised in his opening brief. We affirm in part, reverse in part,

and remand for an evidentiary hearing on one of Williams’

penalty-phase ineffective assistance of counsel claims.

Williams has also filed a separate appeal from the district

court’s denial of his motion for relief under Rule 60(b) of the

Federal Rules of Civil Procedure. We affirm the denial of

Williams’ Rule 60(b) motion.
WILLIAMS V. FILSON 7

I. Background

A. Conviction and Sentence

Many of the basic facts surrounding the murder of Ms.

Carlson are no longer subject to reasonable dispute. Williams

pleaded guilty to her murder during the guilt phase of the

trial, and during the penalty phase he took the stand and

described in detail how he committed the offense.

Williams grew up in the Los Angeles area but moved to

Reno, Nevada, in February 1982, when he was 18 years old,

both to escape the violence prevalent in his inner-city

neighborhood and to pursue his interest in becoming a

professional boxer. He moved in with his boxing coach, who

lived in a residential community called Horizon Hills. 

Williams held a job as a maintenance worker in Horizon

Hills, a position he used to burglarize several homes in the

community while the owners were away during the day.

In June 1982, Ms. Carlson and her husband were a young

couple living in Horizon Hills a few houses down the street

from where Williams lived. Ms. Carlson worked as a nurse,

her husband as a firefighter. Ms. Carlson was eight months

pregnant at the time, expecting the couple’s first child.

On the night of June 27, 1982, Williams decided to

burglarize the Carlsons’ home. He thought they had left town

on vacation, as the camper he had seen them packing earlier

in the day was no longer parked outside their home. But Ms.

Carlson was home alone, asleep in her bedroom.

When Williams broke into the Carlsons’ home that night,

he saw a woman’s purse on the kitchen counter, which led
8 WILLIAMS V. FILSON

him to take a large butcher knife from a drawer in the kitchen. 

He then walked through the house, room to room, looking for

things to steal. When he reached the master bedroom, he

turned on the lights and startled Ms. Carlson. She recognized

Williams and said, “Oh, my God, you’re the kid from down

the street.” According to Williams, Ms. Carlson then lunged

toward a bedside dresser, and a struggle between them ensued

as he tried to prevent her from reaching into one of the

drawers. Williams admitted stabbing Ms. Carlson to death

during the course of that struggle with the butcher knife he

had taken from the kitchen. An autopsy revealed that Ms.

Carlson suffered 38 stab wounds in all, three of which were

fatal. Her unborn child died due to lack of oxygen after Ms.

Carlson’s death.

After killing Ms. Carlson, Williams took money, jewelry,

a camera, and a .22 caliber pistol from her home.

The next day, Williams fled to Los Angeles by bus. 

Within a week, police in Reno had obtained a warrant for

Williams’ arrest, tipped off by Williams’ efforts to pawn

some of the jewelry he stole from the Carlsons’ home. 

Williams learned of the warrant, surrendered to authorities in

Los Angeles, and was eventually extradited to Reno. When

questioned by the police in Reno, Williams confessed to the

burglary and to having murdered Ms. Carlson during the

course of the burglary.

In August 1982, the State of Nevada charged Williams

with one count of murder for the death of Ms. Carlson, one

count of manslaughter for the death of her unborn child, and

one count of burglary. The case received widespread

publicity throughout Washoe County, where Reno is located. 

The State sought the death penalty.
WILLIAMS V. FILSON 9

Trial commenced in December 1982. On the first day of

jury selection, Williams pleaded guilty to the burglarycharge. 

A week later, after a jury had been empaneled and testimony

had begun, Williams pleaded guilty to the murder and

manslaughter charges as well. Under Nevada law at the time,

Williams’ guilty plea to capital murder meant that the penalty

phase of his trial would be held before a three-judge

sentencing panel rather than a jury. Williams’ trial counsel

believed she had a better chance of persuading judges rather

than jurors to spare Williams’ life, given the intense public

hostility to Williams in Washoe County at the time.

The penalty-phase hearing took place over three days in

January 1983. The State portrayed Williams as a depraved

individual whose criminal conduct escalated from a series of

home burglaries to “the most brutal, the most sadistic and

most merciless murder ever in the history of Washoe

County.” The State also focused attention on Williams’

victims, introducing a photograph of a visibly pregnant Ms.

Carlson two weeks before she was killed. Mr. Carlson

offered detailed and emotional testimony about discovering

his wife’s body after the murder. The State concluded by

calling a forensic pathologist who testified that there was “no

question this woman was tortured before she was murdered.”

Williams’ mitigation case centered on the testimony of

friends and relatives who described his redeeming qualities,

although several of the familymembers who testified seemed

to be unaware of his guilty plea or the details of the crime. 

The maternal figures in Williams’ life described him as a

caring and dutiful child, and his younger sisters explained

how he had always cared for them. In addition to this

character evidence, Williams’ trial counsel pointed to

hardships in Williams’ life, including the death of his mother,
10 WILLIAMS V. FILSON

his being bounced around different homes and schools, and

his growing up in the dangerous environment of SouthCentral Los Angeles. Williams also testified, recounting his

version of events and expressing remorse for what had

happened.

At the conclusion of the hearing, the three-judge panel

sentenced Williams to death. The panel found four statutory

aggravating circumstances: (1) the murder was committed

during the commission of a burglary; (2) the murder was

committed during the course of a robbery with the use of a

deadly weapon; (3) the murder was committed to avoid or

prevent Williams’ lawful arrest for the burglary; and (4) the

murder involved torture and depravity of mind. The panel

found one statutory mitigating circumstance: the fact that

Williams was only 19 at the time of the offense. The panel

concluded that the aggravating circumstances outweighed the

mitigating circumstances and that death was the appropriate

punishment.

B. Direct Appeal and State Post-Conviction Review

This case has a lengthy history in state court, spanning

almost 25 years. In addition to pursuing a direct appeal,

Williams filed a total of six petitions seeking post-conviction

relief in state court, the last of which the Nevada Supreme

Court denied in 2007. We provide only a brief overview of

those proceedings here.

Williams filed a direct appeal with the Nevada Supreme

Court shortly after he was sentenced to death in 1983. While

his direct appeal was pending, he filed his first state petition

for post-conviction relief, in which he alleged that his trial

counsel had rendered ineffective assistance in violation of the
WILLIAMS V. FILSON 11

Sixth Amendment. The Nevada Supreme Court held

Williams’ direct appeal in abeyance while he litigated his

petition for post-conviction relief. The state trial court held

an evidentiary hearing on Williams’ ineffective assistance of

counsel claim in 1984, but ultimately denied relief. Williams

appealed that ruling to the Nevada Supreme Court. In 1987,

the Nevada Supreme Court affirmed Williams’ convictions

and sentence on direct appeal, and affirmed the denial of his

first petition for post-conviction relief. Williams v. State,

737 P.2d 508 (Nev. 1987).

A succession of five additional petitions for postconviction relief followed. The Nevada Supreme Court

affirmed the denial of Williams’ second and third petitions in

1988, holding that the claims raised were either procedurally

barred or barred by the law-of-the-case doctrine. In 1990, the

Nevada Supreme Court affirmed the denial of Williams’

fourth petition, again on procedural bar grounds. The state

trial court held an evidentiary hearing on Williams’ fifth

petition in 1995, but found none of the claims meritorious. 

The Nevada Supreme Court upheld that ruling in 1997, again

relying on law-of-the-case and successiveness bars.

In 2003, Williams filed his sixth and final state petition

for post-conviction relief, which the Nevada Supreme Court

denied in 2006 on the basis of state-law timeliness and

successiveness bars. See Nev. Rev. Stat. §§ 34.726,

34.810(2). As to one of Williams’ claims, however, the court

held that good cause excused Williams’ procedural defaults. 

Specifically, the court concluded that two of the four

aggravating circumstances found by the sentencing

panel—that the murder was committed during the

commission of a burglary and during the course of a

robbery—were rendered invalid under recently decided
12 WILLIAMS V. FILSON

Nevada Supreme Court authority, thus justifying Williams’

late presentation of the claim. But the court held that

Williams could not show prejudice because, even after

striking the two invalid aggravators, the remaining

aggravators outweighed the lone statutory mitigating

circumstance beyond a reasonable doubt. In 2007, the

Nevada Supreme Court denied Williams’ request for en banc

reconsideration of that ruling, with two justices dissenting.

C. Federal Habeas Corpus Proceedings

In January 1998, Williams initiated this action by filing a

pro se petition for a writ of habeas corpus in federal court. 

The district court accepted the petition for filing in April

1998, following a delay in Williams’ payment of the filing

fee. Although a lawyer helped Williams prepare his pro se

petition, everyone understood that this petition would need to

be amended after Williams had been appointed federal habeas

counsel. Unlike most federal habeas petitioners, as a state

prisoner facing a sentence of death, Williams was statutorily

entitled to the appointment of counsel to represent him in his

federal habeas proceedings. See 18 U.S.C. § 3599(a)(2)

(formerly codified at 21 U.S.C. § 848(q)(4)(B)).

On April 17, 1998, the district court appointed counsel

from the Federal Public Defender’s Office to represent

Williams. Shortly thereafter, the court issued the first in a

series of scheduling orders governing discovery and the filing

of an amended petition, pursuant to what practitioners in the

District of Nevada refer to as the “George Memo.”

The George Memo established standardized procedures

for handling federal habeas corpus proceedings involving

state prisoners sentenced to death. First promulgated in 1992
WILLIAMS V. FILSON 13

under the direction of then-Chief District Judge Lloyd

George, the GeorgeMemo divides capital habeas proceedings

into five discrete stages and provides sample orders that can

be issued at each stage. For example, upon the filing of the

initial petition, the George Memo calls for the district court

to appoint counsel and schedule an initial status conference. 

At the initial conference, the district court sets a schedule

affording federal habeas counsel adequate time (typically six

months) to review the record and conduct all necessary

discovery. At the same time, the court sets a deadline for the

filing of an amended federal petition containing all claims

that the petitioner seeks to litigate, both exhausted and

unexhausted. Under the procedures outlined in the George

Memo, the federal petition will be held in abeyance, if

necessary, to allow the petitioner to complete the exhaustion

process in state court. Once the petitioner fully exhausts all

of the claims to be litigated, the federal habeas proceedings

will then be reopened to allow resolution of the claims on the

merits. The stated goal of these standardized procedures is to

reduce the delay and inefficiency caused when federal habeas

petitioners bounce back and forth between state and federal

court as they attempt to exhaust available state remedies.

The district court in this case followed the standardized

procedures spelled out in the George Memo. After

appointing counsel in mid-April 1998, the court set the initial

status conference for August 28, 1998. At the conclusion of

that hearing, the court issued a scheduling order granting

Williams’ counsel six months to review the record and

complete all discovery. The court set a deadline of May 14,

1999, for the filing of Williams’ amended petition, although

the parties recognized that the deadline might need to be

extended depending on how long it took the parties to resolve

any discovery-related issues.
14 WILLIAMS V. FILSON

As it turned out, discovery-related issues did arise, and at

Williams’ request the district court twice extended the

deadline for filing the amended petition. The State did not

oppose either extension. Williams filed his amended federal

petition on September 17, 1999, within the deadline

ultimately set by the court. He then filed a second amended

petition in May 2002, within the deadline stipulated by the

parties.

In May 2003, the district court granted Williams’ request

to hold his federal habeas proceedings in abeyance while he

litigated his sixth and final petition for state post-conviction

relief, the last step necessary to complete the exhaustion

process. After the Nevada Supreme Court affirmed the denial

of that petition in 2007, the district court granted Williams’

request to reopen his federal habeas proceedings, as

contemplated under the George Memo.

Williams filed a third amended federal habeas petition,

the operative petition in this case, in October 2007. Williams

raised 38 claims for relief and requested an evidentiary

hearing. In a series of orders entered between 2009 and 2012,

the district court denied Williams’ request for an evidentiary

hearing and eventually denied relief on all claims. The court

held that some of the claims were barred by the federal statute

of limitations, 28 U.S.C. § 2244(d), and that Williams was

not entitled to equitable tolling of the federal filing deadline. 

The court concluded that many of Williams’ remaining

claims were procedurally defaulted because the Nevada

Supreme Court had determined that they were barred by the

statute of limitations set by state law, under Nevada Revised

Statutes § 34.726. As to the handful of claims that survived,

the district court denied relief on the merits.
WILLIAMS V. FILSON 15

The district court granted a certificate of appealability as

to the issues we address below in sections II.A, II.C, and II.D. 

As noted above, Williams raised a number of uncertified

issues in his opening brief, which under Ninth Circuit Rule

22.1(e), we treat as a request to expand the certificate of

appealability. We asked the State to respond to several of the

uncertified issues, and we now grant a certificate of

appealability as to the issues addressed in sections II.B and

II.E below.

II. Discussion

A. Equitable Tolling

The Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA) sets a one-year statute of limitations for filing

a federal petition for a writ of habeas corpus. 28 U.S.C.

§ 2244(d). It is undisputed in this case that the one-year

deadline for Williams ran until August 29, 1998. Thus, his

initial pro se federal petition, accepted for filing on April 15,

1998, was unquestionablytimely. His amended petition, filed

on September 17, 1999, raised a significant number of new

claims not asserted in the original petition. That is not

surprising, given that the amended petition was prepared by

counsel with expertise in federal habeas proceedings after the

district court had afforded them time to conduct discovery

and review the voluminous record. The issue is whether the

new claims asserted in the amended petition may be

considered on the merits even though the petition containing

them was filed after AEDPA’s August 29, 1998, filing

deadline.

The claims asserted in the September 1999 amended

petition may be considered if they “relate back” to claims
16 WILLIAMS V. FILSON

asserted in the original petition filed in April 1998. That is

because Federal Rule of Civil Procedure 15(c), which applies

in federal habeas proceedings, provides in relevant part as

follows:

(c) Relation Back of Amendments.

(1) When an Amendment Relates Back.

An amendment to a pleading relates back to

the date of the original pleading when:

* * *

(B) the amendment asserts a claim or

defense that arose out of the conduct,

transaction, or occurrence set out—or

attempted to be set out—in the original

pleading[.]

Fed. R. Civ. P. 15(c)(1)(B).

The district court held that some of the claims asserted in

Williams’ amended petition do not relate back to the claims

included in his original petition, thus rendering them

untimely, even though all of the claims arise out of the same

conviction and sentence. In so holding, the court applied the

standard for relation back announced in Mayle v. Felix,

545 U.S. 644 (2005), a case decided more than five years

after Williams filed his amended petition. In that case, the

Supreme Court held that a claim asserted in an amended

habeas petition relates back to the original petition only if

“the original and amended petitions state claims that are tied

to a common core of operative facts.” Id. at 664. In so

holding, the Court rejected the broader reading of Rule 15(c)
WILLIAMS V. FILSON 17

that our court had adopted. See Felix v. Mayle, 379 F.3d 612

(9th Cir. 2004), rev’d, 545 U.S. 644 (2005). We had viewed

the relevant “transaction” or “occurrence” in federal habeas

proceedings as the petitioner’s trial and conviction, such that

claims asserted in an amended petition would relate back so

long as they arose out of the same trial and conviction

challenged in the original petition. See id. at 615.

We need not decide whether the district court’s

application of the relation-back standard from the Supreme

Court’s decision in Mayle is correct. For we conclude that,

even if the claims asserted in the original and amended

petitions do not share a common core of operative facts,

Williams is entitled to equitable tolling for the period

between August 29, 1998, and September 17, 1999. All of

the claims asserted in the September 1999 amended petition

are therefore timely under AEDPA.

To be entitled to equitable tolling, a habeas petitioner

must demonstrate two things: “(1) that he has been pursuing

his rights diligently, and (2) that some extraordinary

circumstance stood in his way and prevented timely filing.” 

Holland v. Florida, 560 U.S. 631, 649 (2010) (internal

quotation marks omitted). The State does not contest that

Williams diligently pursued his rights between August 29,

1998, and September 17, 1999. Throughout that period, his

counsel diligently reviewed the record, conducted discovery,

and prepared an amended petition asserting all potential

claims on Williams’ behalf, both exhausted and unexhausted,

as the district court’s scheduling orders directed. See section

I.C above. Williams’ counsel filed the amended petition

within the deadline set by the court after obtaining the court’s

approval of two extension requests, neither of which the State

opposed. So the only issue here is whether Williams has
18 WILLIAMS V. FILSON

shown an extraordinary circumstance that prevented timely

filing.

One way a petitioner can demonstrate an extraordinary

circumstance is by showing that he relied on controlling

circuit precedent to file what he thought would be a timely

federal petition, only to see the circuit precedent subsequently

overruled, therebyrendering his petition untimely. See Nedds

v. Calderon, 678 F.3d 777, 781 (9th Cir. 2012); Harris v.

Carter, 515 F.3d 1051, 1056–57 (9th Cir. 2008). We do not

have quite that situation here. There was no controlling

circuit precedent in the 1998–1999 time frame that

interpreted the meaning of the terms “transaction” and

“occurrence” in Rule 15(c) as applied to federal habeas

proceedings. Our court did not address that issue until we

decided Felix v. Mayle in 2004, years after Williams filed his

amended petition. From August 1998 to September 1999, the

law in our circuit remained unsettled on how broadly (or

narrowly) Rule 15(c)’s relation-back standard should be

construed to apply in federal habeas proceedings.

In Harris, we left open whether equitable tolling may be

granted when a petitioner relies on the unsettled state of the

law (rather than on controlling circuit precedent) in deciding

when to file his petition. 515 F.3d at 1057 n.8; see also

Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013 (9th Cir.

2009) (same). But the Tenth Circuit has squarely addressed

that question, in a decision whose reasoning we find

persuasive here.

In York v. Galetka, 314 F.3d 522 (10th Cir. 2003), the

court confronted a set of circumstances similar to those

present in this case. The petitioner in York relied on the

unsettled state of the law regarding whether AEDPA’s one-
WILLIAMS V. FILSON 19

year filing deadline would be tolled during the period in

which an earlier federal habeas petition remained pending. 

York filed his third federal habeas petition on the assumption

that such tolling would be available. His third petition was

timely with that period of tolling taken into account but

untimely without it. When York filed his third petition in

March 2000, the Tenth Circuit had not yet resolved the issue. 

It did so roughly a year later, when it held in Petrick v.

Martin, 236 F.3d 624 (10th Cir. 2001), that AEDPA’s tolling

provision authorized statutory tolling for both state and

federal petitions during the period in which they remained

pending. Shortly thereafter, however, the Supreme Court

held in Duncan v. Walker, 533 U.S. 167 (2001), that the

tolling provision applied only to pending state petitions,

thereby rendering York’s third petition untimely.

The Tenth Circuit concluded that in these circumstances

York was entitled to equitable tolling. The court

acknowledged that York could not have relied on controlling

circuit precedent in deciding when to file his third petition,

since the favorable ruling in Petrick had not yet been issued. 

York, 314 F.3d at 528. The court held that equitable tolling

was nonetheless appropriate because “the law in this circuit

was unsettled on the issue”; the statute in question was

ambiguous as to the availability of tolling for pending federal

petitions; and the Supreme Court did not resolve that

ambiguity adversely to York until after he had filed his third

petition. Id.; see also Griffin v. Rogers, 399 F.3d 626, 637

(6th Cir. 2005) (“unstable and unsettled” state of the law

supported equitable tolling).

The facts in Williams’ case are similar to those in York,

although, as we shall explain, the circumstances here favoring

equitable tolling go beyond those present in York. Williams
20 WILLIAMS V. FILSON

relied on the unsettled state of the law when he assumed that

the claims asserted in his amended petition would relate back

to the claims asserted in his original April 1998 petition. 

Rule 15(c) was undoubtedly ambiguous on this point: As

applied to federal habeas proceedings, the terms “transaction”

and “occurrence” could readily be understood to mean the

petitioner’s trial and conviction, as evidenced by the fact that

two circuits (ours and the Seventh) later interpreted the terms

in that way, as did the two dissenting Justices in Mayle. See

Mayle, 545 U.S. at 670–74 (Souter, J., dissenting, joined by

Stevens, J.); Felix, 379 F.3d at 615; Ellzey v. United States,

324 F.3d 521, 525–26 (7th Cir. 2003). The Supreme Court

did not resolve the ambiguity in how Rule 15(c) should be

interpreted until after Williams had filed his amended

petition, at which point it was too late for him to cure any

timeliness issues that arose as a result.

To be entitled to equitable tolling, Williams’ reliance on

the unsettled state of the law must have been reasonable

during the time period in question. Cf. Lawrence v. Florida,

549 U.S. 327, 336 (2007) (petitioner was not entitled to

equitable tolling where every circuit to address an issue,

including petitioner’s home circuit, had resolved the issue

adversely to him). We think Williams’ reliance was

eminently reasonable, for at least two reasons.

First, in surveying the law as it stood at the end of August

1998, when AEDPA’s one-year filing deadline passed,

Williams’ counsel had no reason to suspect that Rule 15(c)

would pose an obstacle to consideration of newly added

claims in an amended petition. Ninth Circuit law interpreting

Rule 15(c) in the context of ordinary civil actions had

construed the relation-back standard broadly, permitting

relation back of newly added claims arising out of the same
WILLIAMS V. FILSON 21

transaction or occurrence even if “the new claims are based

on a different legal theory of which there was no warning in

the original pleading.” Felix, 379 F.3d at 615. Because Rule

15(c)’s reference to “transaction” or “occurrence” could

plausibly be read in the federal habeas context to refer to the

petitioner’s conviction and trial, habeas practitioners

reasonably assumed that newly added claims would relate

back to the original petition so long as the claims arose out of

the same trial and conviction challenged in the original

petition. No circuit court in the country had interpreted Rule

15(c) to the contrary as of August 1998; the first decision

imposing a more restrictive reading of Rule 15(c) did not

come until February 1999. See United States v. Craycraft,

167 F.3d 451, 456–57 (8th Cir. 1999). The dearth of

precedent may explain why the leading habeas treatise at the

time offered no discussion at all about Rule 15(c)’s relationback standard, either in its section discussing AEDPA’s

recently added statute of limitations or in the section

discussing amendment of the petition. See 1 James S.

Liebman & Randy Hertz, Federal Habeas Corpus Practice

and Procedure §§ 5.1b, 17.2 (3d ed. 1998).

Second, Williams’ lawyers were not alone in assuming

that newly added claims in an amended petition would relate

back to the original petition; the district court shared that

assumption. Indeed, the series of scheduling orders entered

by the court is otherwise hard to explain. When the court

appointed counsel for Williams in April 1998, only four-anda-half months remained beforeAEDPA’s one-yearlimitations

period expired. But the court did not schedule the first status

conference until August 28, 1998, literally the day before the

one-year deadline passed, at which point Williams’ lawyers

were still digesting the 47 boxes of materials they had

gathered and, in addition, attempting to formulate a discovery
22 WILLIAMS V. FILSON

plan to obtain the remaining materials they needed to review. 

The court granted counsel six additional months, as

contemplated under the George Memo, to complete their

review of the record and to conduct needed discovery. The

court set an initial May 1999 deadline—well beyond the

expiration of AEDPA’s one-year statute of limitations—for

the filing of a comprehensive amended petition asserting all

potential claims, both exhausted and unexhausted. Setting

that schedule made little sense if counsel would then be

precluded from adding new claims unless the claims

happened to share a common core of operative facts with

claims Williams had asserted in his original pro se petition.

The State also assumed that any newly added claims

would relate back. Only that understanding explains why the

State waited eight years after receiving the amended petition

before moving to dismiss any of the claims on the ground that

they did not relate back to the original petition under Rule

15(c).

In sum, it was not until the Supreme Court decided Mayle

in 2005 that anyone involved in this case suggested that the

newly added claims might not relate back and could therefore

be deemed untimely. Until then, the George Memo was

followed, and it assumed that allowing amendment to add

new claims was a valid way of efficiently structuring habeas

proceedings in capital cases.

We hold that Williams is entitled to equitable tolling for

the period from August 29, 1998, to September 17, 1999, and

accordingly reverse the district court’s contrary ruling. 

Ultimately, the district court dismissed just a handful of

Williams’ claims based solely on the assumed untimeliness

of his September 1999 amended petition: Claims 1(C), 1(D),
WILLIAMS V. FILSON 23

1(E), 1(H), 1(I), 1(J), 9, and 14. We remand for further

proceedings as to each of those claims.1

B. Claims 1(A) and 1(F)

We turn now to two related claims alleging ineffective

assistance by Williams’ trial counsel, Shelly O’Neill. In

Claim 1(A), Williams alleges that O’Neill unreasonably

failed to discover and present evidence that Williams suffers

from brain damage. In Claim 1(F), Williams alleges that

O’Neill unreasonably failed to investigate and present

substantial mitigating evidence regarding his abusive and

traumatic childhood. Williams argues that this evidence

might have dissuaded the three-judge panel from sentencing

him to death, and that the district court erred in denying him

relief on these claims without granting his request for an

evidentiary hearing.

Although these claims are substantively related, they

come before us with different procedural backgrounds. Our

analysis is informed by the standard of review applicable to

each. We conclude that the district court did not abuse its

discretion in denying an evidentiary hearing as to Claim 1(A). 

Although we conclude that O’Neill was deficient in failing to

uncover evidence of Williams’ brain damage, we defer to the

Nevada Supreme Court’s conclusion that this evidence on its

own does not create a reasonable probability that the outcome

of Williams’ sentencing hearing would have been different. 

1 As explained in section II.E below, Claims 1(D), 1(E), 1(H), 1(I),

and 1(J) were procedurally defaulted under state law. Thus, the district

court’s first order of business as to these claims, which allege ineffective

assistance of trial counsel, will be to determine whether the default is

excused under the rule established in Martinez v. Ryan, 566 U.S. 1 (2012).
24 WILLIAMS V. FILSON

As to Claim 1(F), however, we agree with Williams that the

district court abused its discretion in denying an evidentiary

hearing. We remand for the district court to hold an

evidentiary hearing so that it may properly assess whether the

evidence of Williams’ childhood abuse and trauma—in

combination with the brain damage evidence that was not on

its own sufficient—gives rise to a reasonable probability that

the outcome of Williams’ sentencing hearing would have

been different.

1. Claim 1(A)

Williams presented the substance of Claim 1(A) in his

sixth and final state petition for post-conviction relief in

2003. The claim was substantiated by expert reports prepared

in 1999 by Dr. David Schmidt, a clinical neuropsychologist,

and Dr. Dennis DePry, a psychiatrist. Dr. Schmidt diagnosed

Williams with neuropsychological impairment, traumatic

brain injury, and polysubstance abuse. He reported that

Williams’ brain damage likely hampered his “ability to

anticipate the long term consequences of his actions” and

made him “more likely to act-out in a criminal manner.” Dr.

DePry concurred in these diagnoses, and added that Williams

suffered from mixed personality disorder with dependent and

schizoid traits.

The Nevada Supreme Court held that Williams had

procedurally defaulted this claim, citing state-law timeliness

and successiveness bars. See Nev. Rev. Stat. §§ 34.726,

34.810(2). Although it rejected the claim on procedural

grounds, the court’s order denying Williams’ request for en

banc reconsideration arguably reached the merits, as it

addressed the ineffective assistance issue in considering

whether Williams failed to show cause and prejudice
WILLIAMS V. FILSON 25

sufficient to overcome the procedural bars. With respect to

prejudice at the guilt phase, the court reasoned that the

doctors’ reports “did not suggest that Williams was

incompetent, insane, or lacked the capacity to understand his

actions.” With respect to the penalty phase, the court was

“not persuaded that even assuming trial counsel had

discovered and presented the brain damage evidence . . . in

mitigation that it had a reasonable probability of altering the

outcome of the penalty hearing.”2

The State argues that the Nevada Supreme Court’s

decision constitutes an adjudication on the merits of Claim

1(A) and thus warrants AEDPA deference under 28 U.S.C.

§ 2254(d). The State contends that the court “accepted as true

Williams’ proffered reports” and engaged in the analysis

required under Strickland v. Washington, 466 U.S. 668

(1984). The district court agreed, concluding that, “[e]ven

though the court was considering the claim as part of its

procedural default analysis, the ruling constitutes an

adjudication on the merits for the purposes of § 2254(d).”

Although we have doubts about whether the Nevada

Supreme Court reached the merits of Williams’ claim, we

recognize that the court did apply the functional equivalent of

Strickland’s prejudice standard in conducting its cause-andprejudice analysis. See Early v. Packer, 537 U.S. 3, 8 (2002)

(per curiam) (explaining that AEDPA deference may be due

even when the state court did not cite the federal standard). 

2 Two justices dissented fromthe denial of Williams’ en banc request. 

They would have remanded to the state trial court for a “full evidentiary

hearing concerning the extent of any actual physical brain damage and its

impact on Williams’s eligibility for the death penalty,” particularly

because two of the four aggravating factors had been stricken.
26 WILLIAMS V. FILSON

Because Williams does not dispute that the Nevada Supreme

Court’s decision amounted to a merits determination, we join

the parties in assuming that the Nevada Supreme Court

reached the merits of the Strickland issue and that the

limitations of § 2254(d) therefore apply. Accepting those

limitations, we cannot conclude that the district court abused

its discretion in denying an evidentiary hearing on Claim

1(A).

Under § 2254(d), our review “is limited to the record that

was before the state court that adjudicated the claim on the

merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). And

we must defer to the state court’s rejection of Claim 1(A)

unless it “was contrary to, or involved an unreasonable

application of, clearly established Federal law,” or “was

based on an unreasonable determination of the facts in light

of the evidence presented” in state court. 28 U.S.C.

§ 2254(d). Strickland supplies the clearly established federal

law for ineffective assistance of counsel claims. Under

Strickland, Williams must demonstrate that his counsel’s

performance was constitutionally deficient and that the

deficient performance prejudiced him. 466 U.S. at 687. To

establish deficient performance, Williams must show that his

counsel’s performance “fell below an objective standard of

reasonableness.” Id. at 688. To establish prejudice, Williams

must “show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different.” Id. at 694.

We may grant Williams habeas relief only if we find that

the Nevada Supreme Court’s application of Strickland was

“objectively unreasonable.” Woods v. Sinclair, 764 F.3d

1109, 1132 (9th Cir. 2014). In making this determination, we

bear in mind that the “standards created by Strickland and
WILLIAMS V. FILSON 27

§ 2254(d) are both highly deferential, and when the two apply

in tandem, review is doubly so.” Harrington v. Richter,

562 U.S. 86, 105 (2011) (internal quotation marks and

citations omitted). We note, however, that while the Nevada

Supreme Court effectively applied Strickland’s prejudice

standard, it made no determination as to whether O’Neill’s

failure to have Williams examined by a competent

neuropsychologist amounts to deficient performance. We

therefore review this element of Williams’ claim de novo. 

See Porter v. McCollum, 558 U.S. 30, 39 (2009) (per curiam).

As to the guilt phase of the trial, the Nevada Supreme

Court’s denial of relief was not objectively unreasonable. 

Even assuming that O’Neill’s performance was deficient, the

Nevada Supreme Court’s determination that Williams was

not prejudiced as a result is entitled to deference. The

evidence demonstrating Williams’ guilt was substantial, and

it was not unreasonable for the state court to conclude that the

evidence contained in the doctors’ reports would have been

insufficient to support a credible insanity defense or to prove

that Williams’ guilty plea was invalid. See Bemore v.

Chappell, 788 F.3d 1151, 1169–70 (9th Cir. 2015).

The question is much closer with respect to the penalty

phase. “At the penalty phase, counsel’s duty to follow up on

indicia of mental impairment is quite different from—and

much broader and less contingent than—the more confined

guilt-phase responsibility.” Id. at 1171. Trial counsel must

therefore inquire into any mental impairments her client may

have and “consult with appropriate medical experts.” Id.

(internal quotation marks omitted).

O’Neill’s failure to make adequate inquiry in this case

cannot be excused, given our insistence “that all relevant
28 WILLIAMS V. FILSON

mitigating information be unearthed for consideration at the

capital sentencing phase” and that counsel “pursue relevant

leads.” Id. (internal quotation marks omitted). Competent

counsel would have obtained records containing conspicuous

red flags indicating that evaluation by a competent medical or

mental health professional was warranted. Most prominently,

Williams’ juvenile court records indicate that in 1977 his

probation officer “requested psychological testing in

connection with assessment of possible organicity or brain

damage.” That testing revealed that there was “definitely

some type of perceptual-motor inability or restrictiveness.” 

In addition, Williams’juvenile and medical records document

his consistent substance abuse during critical years for brain

development. They reveal that he began sniffing glue as

early as age 14, became increasingly dependent on alcohol

during adolescence, and experimented with PCP. A fulsome

investigation would also have revealed that Williams suffered

multiple head injuries, including one from a car collision that

left him unconscious for a period of 15 minutes and for which

he never received medical treatment. Reviewing this aspect

of the claim de novo, we conclude that O’Neill’s failure to

have Williams evaluated by a competent medical or mental

health professional constituted deficient performance. See

Caro v. Woodford, 280 F.3d 1247, 1254–56 (9th Cir. 2002);

Hendricks v. Calderon, 70 F.3d 1032, 1043 (9th Cir. 1995).

The Nevada Supreme Court determined that Williams

was not prejudiced by O’Neill’s deficient performance. Our

review of that determination is limited by the restrictions of

§ 2254(d), and we conclude that the state court did not

unreasonably apply Strickland’s prejudice standard. The

doctors’ reports suggest that, relative to the brain-damaged

population, Williams’ impairment was not particularly

severe: His score on a battery of tests placed his overall
WILLIAMS V. FILSON 29

neuropsychological functioning in the “mildly impaired

range” as compared to the general population. Weighed

against Williams’ crime, it was not unreasonable for the

Nevada Supreme Court to conclude that this evidence did not,

on its own, give rise to a reasonable probability that the

outcome of the sentencing hearing would have been different.

2. Claim 1(F)

We turn now to Claim 1(F), Williams’ ineffective

assistance of counsel claim predicated on O’Neill’s failure to

investigate and present compelling mitigating evidence

regarding Williams’ childhood. Williams presented the

substance of this claim in his amended 1993 state petition for

post-conviction relief. In support of the claim, he submitted

15 declarations from relatives and friends attesting to a

childhood rife with neglect and abuse. After holding an

evidentiary hearing, the state trial court denied relief in 1996,

reasoning that it was “bound by the doctrine of the law of the

case” because the Nevada Supreme Court had already

considered and denied Williams’ ineffective assistance claims

in 1987. See Williams, 737 P.2d at 510. For good measure,

the court also explained that O’Neill had in fact “investigated

Mr. Williams’ difficult childhood and his youth,” and that the

claim “would be dismissed on those grounds as well.” In

1997, the Nevada Supreme Court affirmed only on the first

ground, concluding “that the lower court properly dismissed

Williams’ petition based upon the doctrine of the law of the

case.”

The Nevada Supreme Court’s reliance on the law-of-thecase doctrine amounted to a finding that Williams had

procedurally defaulted Claim 1(F) by violating the state-law

bar on successive petitions. See Nev. Rev. Stat. § 34.810(2). 
30 WILLIAMS V. FILSON

However, the State has conceded that at the time it was

invoked, Nevada’s successiveness bar was not consistently

applied and is therefore not an adequate state ground to

preclude federal review. Accordingly, the State concedes that

federal review of Claim 1(F) is de novo.

The question before us is whether the district court abused

its discretion in denying relief on the claim without granting

Williams’ request for an evidentiary hearing. Williams is

entitled to an evidentiary hearing if he can (1) “show that he

has not failed to develop the factual basis of the claim in the

state courts”; (2) meet one of the factors identified by the

Supreme Court in Townsend v. Sain, 372 U.S. 293 (1963),

overruled on other grounds by Kenney v. Tamayo-Reyes,

504 U.S. 1 (1992); and (3) “make colorable allegations that,

if proved at an evidentiary hearing, would entitle him to

habeas relief.” Insyxiengmay v. Morgan, 403 F.3d 657, 670

(9th Cir. 2005).

The first condition is easily met. Williams presented the

evidence underlying Claim 1(F) in his 1993 state petition and

at the state evidentiary hearing in 1995. Because he did not

fail to develop the factual basis of the claim in state court,

28 U.S.C. § 2254(e)(2) poses no bar to a federal evidentiary

hearing.

As to the second condition, Williams must show at least

one of the following:

(1) the merits of the factual dispute were not

resolved in the state hearing; (2) the state

factual determination is not fairly supported

by the record as a whole; (3) the fact-finding

procedure employed by the state court was not
WILLIAMS V. FILSON 31

adequate to afford a full and fair hearing;

(4) there is a substantial allegation of newly

discovered evidence; (5) the material facts

were not adequately developed at the statecourt hearing; or (6) for any reason it appears

that the state trier of fact did not afford the

habeas applicant a full and fair fact hearing.

Townsend, 372 U.S. at 313. At least one factor applies here: 

The merits of the factual dispute were not resolved in state

court (Townsend factor 1) because the claim was rejected by

the Nevada Supreme Court on procedural grounds. And to

the extent the state trial court considered the merits of the

claim, that court’s determination was not “fairly supported by

the record as a whole” (Townsend factor 2). The state trial

court held that the claim was “directly contradicted” by the

fact that O’Neill “spoke to numerous members of Mr.

Williams’ family and friends” and had “investigated Mr.

Williams’ difficult childhood and his youth.” But the court

made no reference to the content of the 15 declarations,

which, as discussed below, differs greatly from what O’Neill

elicited in her investigation.

Having satisfied the first two conditions, Williams is

entitled to an evidentiary hearing as long as he advances

“colorable allegations that, if proved at an evidentiary

hearing, would entitle him to habeas relief.” Insyxiengmay,

403 F.3d at 670; see also Quezada v. Scribner, 611 F.3d

1165, 1166–67 (9th Cir. 2010) (order). The Supreme Court

has held that a failure to investigate and present mitigating

evidence of childhood abuse and trauma may constitute

ineffective assistance of counsel. Sears v. Upton, 561 U.S.

945, 948, 956 (2010) (per curiam); Wiggins v. Smith,

539 U.S. 510, 524 (2003). To determine whether that is the
32 WILLIAMS V. FILSON

case here, we turn again to Strickland. Reviewing the matter

de novo, we conclude that Williams has alleged a colorable

claim that O’Neill rendered deficient performance and that

Williams suffered prejudice as a result.

a. Deficient Performance

We begin with Strickland’s deficient performance prong. 

It is instructive to consult “[r]estatements of professional

standards” that “describe the professional norms prevailing

when the representation took place.” Bobby v. Van Hook,

558 U.S. 4, 7 (2009) (per curiam). The ABA Standards for

Criminal Justice applicable at the time of Williams’ trial

explained that defense counsel has “a substantial and

important role to perform in raising mitigating factors,” and

that “[i]nformation concerning the defendant’s background,

education, employment record, mental and emotional

stability, family relationships, and the like, will be relevant.” 

ABA Standards for Criminal Justice 4-4.1, p. 4-55 (2d ed.

1980). We have explained that “the investigation should

include inquiries into social background and evidence of

family abuse.” Summerlin v. Schriro, 427 F.3d 623, 630 (9th

Cir. 2005) (en banc). Counsel’s obligation “to cast a wide net

for all relevant mitigating evidence” is at its height during the

penalty phase of a capital case. Frierson v. Woodford,

463 F.3d 982, 989 (9th Cir. 2006). Assessed against these

standards, Williams has alleged a colorable claim that

O’Neill’s failure to uncover evidence of Williams’ childhood

abuse and trauma constitutes deficient performance.

“[T]he presence of certain elements in a capital

defendant’s background, such as a family history of

alcoholism, abuse, and emotional problems, triggers a duty to

conduct further inquiry before choosing to cease
WILLIAMS V. FILSON 33

investigating.” Earp v. Ornoski, 431 F.3d 1158, 1175–76

(9th Cir. 2005) (citing Wiggins, 539 U.S. at 525). O’Neill

failed to take even the first steps of an adequate investigation,

which in this case would have revealed warning signs

regarding each of those elements in Williams’ background. 

She failed to obtain Williams’ juvenile records, which would

have revealed that Williams’ behavioral issues arose after his

mother died when he was nine. She failed to obtain his

medical records, which would have revealed that Williams

dealt with the “emotional turmoil” in his life by resorting to

drug use that negatively affected his “mental stability.” And

she failed to obtain Williams’ school records, which would

have revealed that his performance deteriorated throughout

adolescence.

As discussed at length below, the declarations submitted

in support of Claim 1(F) confirm that each of the red flags

identified in Earp was present in Williams’ background, and

were in fact such prominent features of his childhood that

anything beyond a cursory investigation would have

uncovered them. And indeed, the declarations indicate that

the little investigation O’Neill did do was, in fact, cursory at

best.

O’Neill’s investigation consisted of one three-day trip to

Los Angeles, during which she met with a number of

Williams’ relatives and, according to one account, “talked to

each person for ten to fifteen minutes.” Williams’ sister April

reported that “I had barely begun to tell her [about] my

brother, when it was all over.” Williams’ sister Cynthia

reported that O’Neill asked her only “a little bit about how we

grew up.” Had O’Neill engaged more deeply, April and

Cynthia could have described in detail the abuse that they and

Williams endured throughout their childhoods. It is no
34 WILLIAMS V. FILSON

excuse that they and other family members were not

immediately more forthcoming in their brief interviews with

O’Neill. “Trial counsel has an affirmative duty not to simply

accept the facts as they might be presented at first blush, but

rather to ‘unearth[] for consideration’ at the sentencing phase

‘all relevant mitigation information.’” Doe v. Ayers, 782 F.3d

425, 437 (9th Cir. 2015) (quoting Wallace v. Stewart,

184 F.3d 1112, 1117 (9th Cir. 1999)).

O’Neill failed not only to elicit relevant information, but

also to prepare the family members and friends who testified

at the sentencing hearing. Williams’ sister April explained

that O’Neill did not even mention when they met in Los

Angeles that she would be asked to testify at the sentencing

hearing, much less go over the kinds of questions she would

be asked. This lack of preparation is apparent in the

transcript of Williams’ sentencing hearing, which is replete

with indications that O’Neill failed to inform her most

important witnesses of the questions she planned to ask them. 

Williams’ sister Cynthia, for instance, insisted on the stand

that Williams had not committed the murder, despite his

guilty plea. When asked if Williams should be allowed to

live even if he had committed the murder, Cynthia replied: 

“No. If he did it, no, he shouldn’t.” Williams’ aunt, Inez

Kelly, another critical witness, also insisted on Williams’

innocence, and revealed that she had never been informed of

the salient details of the crime. We have made clear that “the

failure to prepare a witness adequately can render a penalty

phase presentation deficient.” Hamilton v. Ayers, 583 F.3d

1100, 1121 (9th Cir. 2009).

Having lapsed in her investigatory and preparatoryduties,

O’Neill was left to base her mitigation case primarily on

Williams’ redeeming qualities. The district court concluded
WILLIAMS V. FILSON 35

that “O’Neill arrived at this strategy after conducting a

reasonable investigation into Williams’s family and social

background.” We cannot agree. While it is “strongly

presumed” that counsel “made all significant decisions in the

exercise of reasonable professional judgment,” Strickland,

466 U.S. at 690, we cannot credit O’Neill’s decision to

present the mitigation case she did as a strategic choice

because “counsel cannot be said to have made a tactical

decision without first procuring the information necessary to

make such a decision.” Reynoso v. Giurbino, 462 F.3d 1099,

1112 (9th Cir. 2006); see also Correll v. Ryan, 539 F.3d 938,

949 (9th Cir. 2008) (“An uninformed strategy is not a

reasoned strategy. It is, in fact, no strategy at all.”).

Moreover, no competent counsel would have made an

informed choice to present the “good guy” mitigation case

that O’Neill presented, when far more compelling mitigating

evidence (discussed in the next section) was available. The

judges on the sentencing panel heard that Williams “loved

church” and was “always helping people.” They heard that

he made sure his younger sisters had lunch money for school,

and that he helped out in his great-uncle’s shop. This defense

was obviously insufficient to mitigate what the prosecutor

called “the most brutal, the most sadistic and most merciless

murder ever in the history of Washoe County.” See Bemore,

788 F.3d at 1172 (“[A] good character defense was unlikely

to be persuasive to a jury that had just decided that

[defendant] had carried out a grizzly murder, including

torturing the victim . . . .”). O’Neill herself even told the

judges that “[n]early everyone I talk to wants Cary Williams

to die,” and that “if [she] thought that killing Cary Williams

would bring Katherine Carlson and her baby back,” she felt

“that would be a fair exchange.” In his closing argument at

sentencing, the prosecutor summed upO’Neill’s presentation: 
36 WILLIAMS V. FILSON

“So where, then, are the mitigating factors? They simply do

not exist in this case.”

b. Prejudice

We turn now to Strickland’s prejudice prong. To

establish prejudice, Williams must show that there is “a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been

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

mitigation case that O’Neill presented to the case that an

adequate investigation would have yielded, we conclude that

Williams has alleged a colorable claim that he was prejudiced

by O’Neill’s deficient performance.

O’Neill’s mitigation case portrayed Williams as a

thoughtful and dutiful child who grew up with the support of

a loving family, despite being “bounced around a little bit”

between homes and schools. In light of Williams’ proffered

evidence, we now know that an adequate investigation would

have revealed an upbringing marred by violence and

upheaval, and a family life rife with abuse and neglect.

The declarations of friends and relatives reveal a life

plagued by violence at home beginning when Williams was

five years old. It was then that his mother married Tommy

Enge, who frequently beat her in front of the children—once

so badly that she miscarried. When Williams stepped in to

try to protect his mother, the violence was directed at him. 

Williams’ sister remembers one occasion on which Mr. Enge

beat an eight-year-old Williams “like he was hitting a man.” 

Williams and his mother and sisters endured constant abuse

for nearly three years, until Williams’ mother separated from

Mr. Enge.
WILLIAMS V. FILSON 37

But any respite was short-lived. The following year,

Williams’ mother became bedridden with cancer. Williams

acted as her caretaker and agonized over her daily

deterioration until she died, when Williams was nine. The

sentencing judges heard that Williams “missed” his mother,

but not that he was so distraught at her funeral that he nearly

dragged her casket off its platform, or that his teachers began

to recognize behavioral problems around this time.

Following their mother’s death, Williams and his sisters

were passed between relatives who fought over the Social

Security benefits that followed them. The sentencing judges

heard that Williams was “shuffl[ed] from one caring relative

to another,” each of whom “loved him very much.” They did

not hear that Williams experienced constant abuse and

neglect in each household.

Williams and his sisters first moved in with their mother’s

cousin, Inez Kelly. Ms. Kelly largely confined the children

to the house and hoarded food so that they did not have

enough to eat. Williams was forced to assume adult

responsibilities, acting as a parent to his younger sisters and

learning to drive at age nine so that he could take over the

wheel when Ms. Kelly became too drunk to drive. When the

children failed to live up to Ms. Kelly’s exacting standards,

she would punish them by locking them in a dark closet for

hours or, more often, whip them with an extension cord with

frayed wires at the end. These beatings left the children

bruised and bloody. One whipping sent Williams’ sister to

the emergency room, but Williams consistently got the worst

of it. Ms. Kelly’s husband, Roosevelt Kelly, also frequently

beat Williams. On one occasion, Mr. Kelly “had [12-year-old

Williams] down on the ground and was whipping him as hard

as he could, like he was hitting a punching bag.” Mr. Kelly
38 WILLIAMS V. FILSON

also battered Ms. Kelly and sexually abused Williams’

sisters, which Williams was helpless to prevent. Unable to

endure this abuse, Williams ran away at age 13.

Williams then lived for a brief time with his aunt Jean

Williams. The sentencing judges were told that Williams

“didn’t get along with” Aunt Jean’s husband, Lawrence Enge

(Tommy Enge’s younger brother). They were not told that

Williams’ problem with Mr. Enge was his frequent abuse of

Williams’ aunt, grandmother, and sister, or that Mr. Enge was

later convicted of child abuse.

Williams and his sisters next moved in with their aunt

Katheryn Carter and her husband Larry Joe Carter. Neglected

and again denied food, the only attention the children

received in this house was unwanted. The Carters beat

Williams and his sisters for a range of small infractions. And

Williams was again left helpless to prevent the sexual abuse

of his sisters, this time at the hands of Mr. Carter, who also

allegedly raped and impregnated his own daughter. Williams

and his sisters eventually returned to live with Aunt Jean and

Lawrence Enge, who continued to sexually abuse one of

Williams’ sisters. In the midst of this rampant sexual abuse,

Ms. Kelly had two of Williams’ sisters fitted with intrauterine

devices without their knowledge, which have left them able

to give birth only through caesarean section.

As Williams entered his teenage years, this family turmoil

was increasingly matched by violence outside the home. 

O’Neill told the sentencing judges that Williams grew up in

a “rough neighborhood” where “white people would fear to

go,” but she failed to convey the level of violence he

experienced. Between ages 14 and 16, Williams witnessed

the shooting deaths of at least three of his friends. At age 16
WILLIAMS V. FILSON 39

or 17, he was surrounded by teenagers who placed a sawedoff shotgun in his mouth, only to be saved by a passing police

car. He returned home from that incident to find his family

already mourning his death. Williams estimates that he was

shot at over 100 times, and he was struck on two occasions. 

At age 18, shortly before he moved to Reno, Williams

underwent three separate operations to dislodge a bullet from

his chest.

Unable to cope with his reality at home and on the streets,

Williams turned to substance abuse at a young age. He was

an alcoholic by age 13, and required medical treatment for

sniffing glue three weeks after his 14th birthday. He

eventually turned to harder drugs like PCP, and his behavior

became increasingly self-destructive. At 16, Williams

attempted to commit suicide by overdosing on sleeping pills. 

At 18, distraught over the recent deaths of his grandmother

and favorite uncle, Williams drove Aunt Jean’s car into

oncoming traffic in a busy intersection, resulting in a

collision that totaled his aunt’s car and left him with a severe

head injury.

We cannot agree with the district court that “much of the

social history set forth in support of this claim was, indeed,

presented to the three-judge panel.” The judges heard

virtually nothing that would have helped them understand the

full extent of the abuse and trauma Williams had endured

during his formative years, the role those experiences played

in shaping the person he became, and why he might therefore

be deserving of mercy. O’Neill only faintly hinted at the

adversity Williams faced during childhood, leading the

prosecutor to describe her half-hearted “bad background”

case as “almost laughable.”
40 WILLIAMS V. FILSON

Had Williams’ counsel been effective, the sentencing

judges would have learned that Williams had precisely “the

kind of troubled history [the Supreme Court] ha[s] declared

relevant to assessing a defendant’s moral culpability.” 

Wiggins, 539 U.S. at 535. They would have learned that

Williams endured relentless violence throughout his

childhood and adolescence, and they would have gained

insight into his inability to cope with that trauma through

testimony describing his increasingly self-destructive

behavior. “This evidence may not have made [him] anymore

likable to the [judges], but it might have helped the [judges]

understand [him], and his horrendous acts . . . .” Sears,

561 U.S. at 951.

The district court speculated that attempting to present the

social history described above, “with witnesses giving

conflicting testimonyand being subject to cross-examination,

would have painted a murky and confusing picture of

Williams’s childhood.” This is precisely the kind of

speculation in which the district court should not have

engaged without the benefit of an evidentiary hearing, during

which the court could actually assess how credible and

compelling the testimony would have been. The mitigating

evidence submitted in support of Claim 1(F) is sufficient to

support the conclusion that Williams has a colorable claim

that he was prejudiced by O’Neill’s deficient performance. 

Thus, the district court abused its discretion in denying an

evidentiary hearing as to Claim 1(F). See Stankewitz v.

Woodford, 365 F.3d 706, 725 (9th Cir. 2004).

While the mitigating evidence underlying Claim 1(F) is

sufficient on its own to support this conclusion, it is proper in

our prejudice analysis to consider the impact this evidence

would have had in combination with the evidence of brain
WILLIAMS V. FILSON 41

damage underlying Claim 1(A). Claims 1(A) and 1(F) allege

related aspects of O’Neill’s ineffective assistance in preparing

Williams’ mitigation case. The claims are formally separate,

however, because theywere presented and handled piecemeal

in the state courts. We are bound by the standard of review

attached to each claim, and accordingly defer to the Nevada

Supreme Court’s conclusion that the brain damage evidence

underlying Claim 1(A) is insufficient on its own to raise a

reasonable probability that the outcome of Williams’

sentencing hearing would have been different. However, that

evidence cannot simply be ignored when assessing prejudice

as to Claim 1(F).

It is beyond debate that evidence of brain damage can be

powerful mitigating evidence. See Sears, 561 U.S. at 956;

Porter, 558 U.S. at 36, 41. Although perhaps insufficient to

have altered the outcome on its own, this evidence surely

would have had some incremental impact on the sentencing

decision. That incremental impact must be factored into the

prejudice analysis with respect to Claim 1(F). We have long

recognized that the cumulative effect of multiple errors may

prejudice a defendant even if no single error in isolation is

sufficient to establish prejudice. See United States v.

Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996). Of course, we

cannot consider the cumulative effect of non-errors. Fuller

v. Roe, 182 F.3d 699, 704 (9th Cir. 1999) (per curiam),

overruled on other grounds by Slack v. McDaniel, 529 U.S.

473 (2000). But the Nevada Supreme Court did not address

whether O’Neill’s failure to uncover evidence of Williams’

brain damage was constitutionally deficient, and reviewing

that aspect of the claim de novo, we have determined that it

was. That failure was part and parcel of O’Neill’s deficient

performance in preparing Williams’ mitigation case, and so

it is properly within the scope of our prejudice inquiry. See
42 WILLIAMS V. FILSON

Bemore, 788 F.3d at 1176; Sanders v. Ryder, 342 F.3d 991,

1001 (9th Cir. 2003); Silva v. Woodford, 279 F.3d 825, 834

(9th Cir. 2002).

We have long recognized not only that “prejudice

resulting from ineffective assistance of counsel must be

‘considered collectively, not item by item,’” but also that

“[t]his is particularly true when . . . the different pieces of

mitigating evidence fit together into an internally coherent

and compelling narrative whole.” Doe, 782 F.3d at 460 n.62

(quoting Kyles v. Whitley, 514 U.S. 419, 436 (1995)). 

Evidence of brain damage and childhood abuse often operate

in tandem and together “amount[] to classic mitigating

circumstances.” Correll, 539 F.3d at 944; see also Earp,

431 F.3d at 1179. That certainly could have been the case

here, where the neglected evidence would have been mutually

corroborative and reinforcing. The beatings Williams

endured may help explain his brain damage (Dr. Schmidt

explained that the brain damage was likely caused in part by

“blows to his head during his developmental years”), and the

history of abuse sheds light on his psychological development

(Dr. DePry emphasized the significance of Williams’

“turbulent, chaotic and abusive upbringing as it relates to his

behavior and personality”).

Considering the impact that the evidence of brain damage

and childhood abuse might have had in tandem, we have no

trouble concluding that Williams has presented a colorable

claim that he was prejudiced by O’Neill’s deficient

performance in preparing the mitigation case. We therefore

hold that the district court abused its discretion in denying an

evidentiary hearing on Claim 1(F) and remand for such a

hearing. Once the evidence underlying that claim has been

further developed, the district court will be in a position to
WILLIAMS V. FILSON 43

determine whether Williams is entitled to relief. In assessing

whether there is a reasonable probability that Williams would

have received a different sentence, the district court should

consider “the totality of the available mitigation evidence,”

including the evidence of brain damage, and “reweigh[] it

against the evidence in aggravation,” bearing in mind that two

of the four aggravating factors considered at Williams’

sentencing have since been stricken. Williams v. Taylor,

529 U.S. 362, 397–98 (2000).3

C. Claims 1(B) and 1(G)

We turn next to Williams’ contention that the district

court erred by denying his request for an evidentiary hearing

on two additional ineffective assistance of counsel claims. In

Claim 1(B), Williams alleges that O’Neill rendered

ineffective assistance during the guilt phase by failing to

prepare an adequate defense. In Claim 1(G), Williams

contends that O’Neill rendered ineffective assistance during

the penalty phase by failing to retain a medical expert who

could rebut the State’s evidence that Ms. Carlson’s murder

involved torture.

Williams makes two related arguments that apply equally

to both claims. First, he argues that the district court’s refusal

to hold an evidentiary hearing was predicated on the court’s

erroneous determination that it could not consider certain

3 Claim 1(H) alleges another related deficiency in O’Neill’s penaltyphase representation: her failure to obtain Williams’ juvenile records. If

after further proceedings on that claim, see supra section II.A, the district

court concludes that this failure amounts to deficient performance, then

any prejudice flowing from it should figure in the court’s cumulative

prejudice analysis as well.
44 WILLIAMS V. FILSON

documentary evidence (declarations, memos, and reports)

submitted in support of his claims. Second, he argues that,

even if the district court’s initial ruling was correct under the

law as it then stood, he is entitled to have the documentary

evidence considered under the rule subsequently established

in Martinez v. Ryan, 566 U.S. 1 (2012).

Williams’ first argument is without merit. The district

court properly held that it could not consider the documentary

evidence in question as to the merits of the ineffective

assistance issues because Williams did not submit that

evidence to the state courts in the manner required under state

law.

Williams raised the substance of Claims 1(B) and 1(G) in

state petitions for post-conviction relief filed in 1984 and

1992, respectively. The state trial court held evidentiary

hearings on both claims and denied relief, rulings that the

Nevada Supreme Court affirmed. Williams did not submit

any of the documentary evidence at issue here in connection

with those earlier petitions. He first presented the evidence

to the state courts in his sixth petition for post-conviction

relief filed in 2003. The Nevada Supreme Court held that

Williams’ 2003 petition was untimely under state law and

therefore refused to consider the new evidence at all.

The district court correctly held that it could not consider

the new evidence Williams submitted to the state courts for

the first time in 2003. As the district court recognized,

28 U.S.C. § 2254(e)(2) barred it from conducting an

evidentiary hearing to supplement the state court record on

Claims 1(B) and 1(G). Section 2254(e)(2) states that if a

petitioner “has failed to develop the factual basis of a claim

in State court proceedings, the court shall not hold an
WILLIAMS V. FILSON 45

evidentiary hearing on the claim,” with certain statutory

exceptions not relevant here. Section 2254(e)(2) bars an

evidentiary hearing in federal court if the failure to develop

the factual basis of a claim in state court is attributable to a

“lack of diligence or some other fault” on the petitioner’s

part. Williams v. Taylor, 529 U.S. 420, 434 (2000).

Here, Williams was not diligent in developing the factual

basis for Claims 1(B) and 1(G) in state post-conviction

proceedings. All of the information contained in the

documentary evidence at issue (which we discuss in greater

detail below) could have been presented in Williams’ first

petition for state post-conviction relief in 1984, had his

counsel been diligent in discovering it. Indeed, the state

courts refused to consider the new evidence when Williams

first presented it in 2003 precisely because his postconviction petition was untimely under state law. Thus,

§ 2254(e)(2) required the district court to deny Williams’

request for an evidentiary hearing.

Williams’ second argument is predicated on the Supreme

Court’s decision in Martinez, which was decided after the

district court’s initial ruling denying relief on Claims 1(B)

and 1(G). Martinez carved out a narrow exception to the rule

established in Coleman v. Thompson, 501 U.S. 722 (1991),

which held that an attorney’s failure to raise a claim at the

proper time under state law does not provide “cause”

excusing the resulting procedural default. Id. at 757. 

Martinez created a different rule for ineffective assistance of

trial counsel claims that, under state law, must be raised in

“an initial-review collateral proceeding.” 566 U.S. at 17. 

With respect to such claims, the Court held that “a procedural

default will not bar a federal habeas court from hearing a

substantial claim of ineffective assistance at trial if, in the
46 WILLIAMS V. FILSON

initial-review collateral proceeding, there was no counsel or

counsel in that proceeding was ineffective.” Id.

Williams relies on Martinez to make the following

argument. He contends that under Nevada law, ineffective

assistance of trial counsel claims must be brought in “an

initial-review collateral proceeding.” He further argues that

the new declarations the district court refused to consider

were of such significance that they effectively transformed

his ineffective assistance of trial counsel claims into “new”

claims never presented to the state courts. Those new claims

were therefore procedurally defaulted, he says, but the default

is excused under Martinez because his counsel in the first

post-conviction review proceeding was ineffective for failing

to properly raise the claims at that time. The district court is

free, Williams concludes, to consider the new claims now,

supported by the documentary evidence that the state courts

refused to consider in 2003.

Williams’ argument relies on our court’s decision in

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

There, we held that § 2254(e)(2) does not bar a federal habeas

court from considering new evidence supporting a claim of

ineffective assistance of trial counsel if the new evidence

either “fundamentally alter[s] the legal claim already

considered by the state courts or place[s] the case in a

significantly different and stronger evidentiary posture than

it was when the state courts considered it.” Id. at 1318

(internal quotation marks and citations omitted). In either of

those scenarios, the new evidence transforms the claim into

a new claim that the state courts never had an opportunity to

adjudicate on the merits. The claim is therefore unexhausted

and, if it can no longer be raised in state court, procedurally

defaulted as well. It is at that point subject to analysis under
WILLIAMS V. FILSON 47

Martinez to determine if the default can be excused. Id. at

1318–19.

The threshold question, then, is whether the new evidence

contained in the declarations at issue places Claims 1(B) and

1(G) in “a significantly different and stronger evidentiary

posture,” such that under Dickens they must be deemed

“new” claims not previously presented to the state courts. 

We conclude that the declarations do not have that effect.

We address Claim 1(B) first, which alleges that O’Neill

rendered ineffective assistance by failing to prepare an

adequate defense during the guilt phase. When he presented

this claim to the state courts in 1984, Williams grounded it

mainly on allegations that O’Neill was inexperienced and

overworked, and thus ill-equipped to handle a case of this

magnitude on her own. Williams alleged that O’Neill was

just a few years out of law school and had only recently

joined the public defender’s office. She had little trial

experience, had no experience representing a defendant in a

felony case on her own, and had never tried a capital case. 

And while Nevada law permitted the appointment of two

public defenders to represent a capital defendant, O’Neill did

not request the assistance of co-counsel. Williams further

alleged that O’Neill was overworked and distracted because

the public defender’s office refused to give her a lighter

workload throughout his case. Because O’Neill suffered

from a lack of support and experience, Williams argued, she

was unable to conduct the research and investigation

necessary to prepare an adequate guilt-phase defense.

The new evidence Williams submitted to the district court

in support of this claim does not fundamentally alter the

nature of the claim or place it in a significantly different and
48 WILLIAMS V. FILSON

stronger evidentiary posture. See id. at 1318. For example,

Williams produced a declaration from an investigator in the

public defender’s office who worked with O’Neill at the time

she represented Williams. He states that O’Neill became

overwhelmed shortly after undertaking the representation,

and that she never requested his assistance even though he

was the investigator assigned to Williams’ case. This

declaration merely expands on Williams’ initial allegation

that O’Neill was inexperienced and declined to use all of the

resources at her disposal. As an additional item of new

evidence, Williams produced a memo from a supervisor in

the public defender’s office, sent during the period of

Williams’ representation, stating that due to a staff shortage

in the office O’Neill could not “switch[]” her cases with other

attorneys. This memo substantiates but does not alter the

substance of Williams’ earlier allegation in 1984 that the

public defender’s office refused to give O’Neill a lighter

workload to allow her to focus more intently on his case. The

remaining documents Williams has produced are of a similar

order. None of the new evidence Williams submitted in

support of Claim 1(B) had the effect of transforming it into a

“new” claim distinct from the claim he had earlier presented

to the state courts.

We reach the same conclusion with respect to Claim 1(G). 

In that claim, Williams alleges that O’Neill rendered

ineffective assistance during the penalty phase by failing to

obtain a medical expert to rebut the State’s evidence of the

aggravating circumstance of torture. Williams first alleged

the substance of this claim in state court in 1992. The claim

relates to the penalty-phase testimony of a pathologist called

by the State, Dr. Roger Ritzlin, who testified that Ms. Carlson

suffered several different types of knife wounds during the

attack: three potentially fatal wounds to the chest; a number
WILLIAMS V. FILSON 49

of defensive wounds on Ms. Carlson’s hands and arms; and

a third type of wound that Dr. Ritzlin described as “punctate”

wounds—small, superficial cuts where the skin had been

punctured, consistent with the victim having been poked with

a knife. Dr. Ritzlin concluded that these superficial puncture

wounds were non-fatal and non-defensive in nature. On that

basis, he concluded that Ms. Carlson had been tortured before

being killed.

In his 1992 petition, Williams alleged that reasonably

competent trial counsel would have consulted with

independent medical experts and thereby obtained evidence

refuting Dr. Ritzlin’s testimony that the superficial puncture

wounds were the product of torture. Had an independent

expert been consulted, Williams alleged, the expert would

have testified that the superficial injuries Dr. Ritzlin

identified were defensive wounds inflicted during the course

of a struggle, rather than wounds inflicted to torture the

victim. In particular, Williams alleged that an independent

expert would have provided the following opinions:

• The “superficial” or “torture” wounds

identified by Dr. Ritzlin are consistent

with wounds inflicted during a struggle.

• The blood splatter patterns in the bedroom

and the condition of [the] crime scene and

the nature and frequency of defense

wounds on the victim demonstrate that the

killing occurred during a tremendous

struggle and is inconsistent with a torture

theory.
50 WILLIAMS V. FILSON

• The lack of non-stabbing injuries to the

victim and the location of the so-called

torture wounds—in the areas of the

heart—are inconsistent with Dr. Ritzlin’s

torture theory.

The new evidence at issue here is a letter report prepared

by Dr. Donald Reay, a forensic pathologist who reviewed

(among other things) the autopsy report, autopsy

photographs, and crime scene photographs, as well as the

testimony of Dr. Ritzlin. Dr. Reay opined that there was

nothing to suggest that the superficial puncture wounds

identified by Dr. Ritzlin were the product of torture. Instead,

he concluded that the scattered wounds were defensive in

character, likely suffered during the struggle that occurred

before the fatal wounds were inflicted. Williams first

presented Dr. Reay’s report to the state courts in 2003 in

connection with his sixth state petition for post-conviction

relief. As noted earlier, the state courts refused to consider

the evidence on the ground that Williams’ petition was

untimely.

In our view, Dr. Reay’s report does not place Claim 1(G)

in a “significantly different and stronger evidentiary posture”

than the claim was in when Williams first presented it to the

state courts in 1992. Dr. Reay’s report, which is less than two

pages long, adds little to the detailed allegations Williams set

forth in his 1992 petition. Consistent with Williams’ earlier

allegations, the report concludes that the injuries Dr. Ritzlin

identified were likely defensive wounds inflicted during a

struggle. Indeed, Dr. Reay’s conclusion is based on the same

factors that Williams identified in his 1992 petition, including

the superficial and scattered nature of the wounds and the

absence of any non-stabbing wounds on the victim’s body. 
WILLIAMS V. FILSON 51

To be sure, Dr. Reay’s report supports Williams’ previous

assertions about the conclusions that a medical expert would

have reached, had one been consulted. But the two-page

report merely corroborates the detailed allegations set forth in

Williams’ 1992 petition and thus does not transform Claim

1(G) into a new and unexhausted claim. See Sivak v.

Hardison, 658 F.3d 898, 908 (9th Cir. 2011).

Accordingly, we affirm the district court’s denial of an

evidentiary hearing on Claims 1(B) and 1(G).

D. Claim 16

In Claim 16, Williams challenges the constitutional

validity of the “avoid lawful arrest” aggravating

circumstance, one of the four aggravators originally found by

the three-judge sentencing panel. At the time of Williams’

trial, that aggravating circumstance required the State to

prove that “[t]he murder was committed for the purpose of

avoiding or preventing a lawful arrest or effecting an escape

from custody.” Nev. Rev. Stat. § 200.033(5) (1981). The

State’s theory in this case was that Williams murdered Ms.

Carlson to avoid and prevent his lawful arrest for the burglary

of the Carlsons’ home. The sentencing judges found

sufficient evidence to support that theory. Williams argues

that Nevada’s avoid-lawful-arrest aggravating circumstance

is facially invalid under the Eighth Amendment both because

it is too vague and because it fails to adequately narrow the

class of death-eligible defendants. He further argues that, as

applied to him, the aggravating circumstance violates the Ex

Post Facto Clause and the Fourteenth Amendment’s Due

Process Clause because he lacked adequate notice at the time

he committed the offense that § 200.033(5) could be applied
52 WILLIAMS V. FILSON

to the facts of his crime. We do not find these contentions

meritorious, even reviewing the merits of Claim 16 de novo.

4

We turn first to Williams’ Eighth Amendment arguments. 

He contends that, read most sensibly, § 200.033(5) should be

understood to apply only when the defendant’s arrest is truly

imminent, as when a defendant murders a police officer

attempting to take the defendant into custody. The parties

agree that the Nevada Supreme Court has rejected that

reading of the aggravator. See Evans v. State, 926 P.2d 265,

280 (Nev. 1996); Cavanaugh v. State, 729 P.2d 481, 486

(Nev. 1986). In Williams’ view, rather than adopt his

sensible construction of § 200.033(5), the Nevada Supreme

Court has instead read it to apply whenever a defendant

murders the victim to prevent her from serving as a witness

who could later identify the defendant. The problem with

that reading, Williams asserts, is that the aggravating

circumstance would apply in virtually every murder case,

since the victim of the murder could always be a witness if

allowed to live. Read that broadly, the aggravating

circumstance would likelyviolate the Eighth Amendment, for

the Supreme Court has held that aggravating circumstances

must “genuinely narrow the class of persons eligible for the

death penalty.” Romano v. Oklahoma, 512 U.S. 1, 7 (1994)

(internal quotation marks omitted). Stated differently, an

aggravating circumstance “may not apply to every defendant

convicted of murder; it must apply only to a subclass of

4 Like the district court, we review the arguments raised in Claim 16

de novo because the Nevada Supreme Court never issued a ruling on the

merits of the claim. That is because Williams likely procedurally

defaulted the claim by not raising it on direct appeal, or even in his first

state petition for post-conviction relief. However, the State never asserted

procedural default as a defense to this claim in the district court and has

not asserted it as a defense on appeal.
WILLIAMS V. FILSON 53

defendants convicted of murder.” Tuilaepa v. California,

512 U.S. 967, 972 (1994).

The Nevada Supreme Court, however, has construed

§ 200.033(5) more narrowly than Williams suggests. We

have found no case in which the court adopted the broad,

constitutionally problematic reading that Williams posits. 

Instead, the Nevada Supreme Court has upheld application of

the aggravating circumstance only when the State has proved

that the defendant committed murder for the purpose of

preventing the victim from serving as a witness to some

antecedent crime (separate from the murder) that the

defendant committed. See, e.g., Jeremias v. State, 412 P.3d

43, 55 (Nev. 2018); Blake v. State, 121 P.3d 567, 577 (Nev.

2005); Domingues v. State, 917 P.2d 1364, 1375–77 (Nev.

1996); Cavanaugh, 729 P.2d at 486. That is the same

limiting construction other States have adopted for their own,

similarly worded avoid-lawful-arrest aggravators. See, e.g.,

Thompson v. State, 648 So. 2d 692, 695 (Fla. 1994) (per

curiam); People v. Davis, 794 P.2d 159, 187 n.22 (Colo.

1990), overruled on other grounds by People v. Miller,

113 P.3d 743 (Colo. 2005). We agree with the Eighth and

Tenth Circuits that such a limiting construction adequately

narrows the class of defendants rendered eligible for the death

penalty. See Davis v. Executive Director of the Department

of Corrections, 100 F.3d 750, 769 (10th Cir. 1996);

Wainwright v. Lockhart, 80 F.3d 1226, 1231 (8th Cir. 1996).

Williams next contends that the Nevada Supreme Court

has inconsistentlyapplied this limiting construction, such that

the avoid-lawful-arrest aggravator is unconstitutionally

vague. According to Williams, the Nevada Supreme Court

has upheld application of the circumstance in some cases

involving a defendant who murdered the victim after
54 WILLIAMS V. FILSON

committing an antecedent crime, but has arbitrarily rejected

application of the circumstance in other cases with the same

facts. We do not read the cases as exhibiting this kind of

arbitrariness in application. What they demonstrate is that the

Nevada Supreme Court requires the State to produce evidence

from which the factfinder can reasonably infer that the

defendant committed the murder for the purpose of

eliminating the victim as a witness for an antecedent crime. 

Where such proof exists, the court has upheld application of

the aggravating circumstance. See, e.g., Randolph v. State,

36 P.3d 424, 437 (Nev. 2001); Cavanaugh, 729 P.2d at 486. 

And where the court viewed such proof as lacking, it has

rejected application of the circumstance. See, e.g., Witter v.

State, 921 P.2d 886, 900 (Nev. 1996), overruled on other

grounds by Byford v. State, 994 P.2d 700 (Nev. 2000);

Jimenez v. State, 775 P.2d 694, 698 (Nev. 1989). None of

these factbound decisions renders the avoid-lawful-arrest

aggravating circumstance unconstitutionally vague.

Williams makes one final argument that warrants

discussion. He notes that, at the time he committed his

offense, the Nevada Supreme Court had not yet held that

§ 200.033(5) could be applied in a case like his, involving the

murder of a witness, as opposed to someone actually involved

in effectuating the defendant’s arrest. The court first upheld

application of the aggravating circumstance in a case

involving the murder of a witness more than four years after

Williams’ offense, in Cavanaugh v. State, 729 P.2d 481 (Nev.

1986). Williams argues that he lacked fair notice that the

avoid-lawful-arrest aggravator could be applied to the facts of

his case, and that any attempt to uphold application of the

aggravator based on the Nevada Supreme Court’s subsequent

interpretation of it would violate the Ex Post Facto Clause.
WILLIAMS V. FILSON 55

Judicial interpretation of a criminal statute may not be

applied retroactively if the court’s decision is “unexpected

and indefensible by reference to the law which had been

expressed prior to the conduct in issue.” Bouie v. City of

Columbia, 378 U.S. 347, 354 (1964). We cannot say that the

Nevada Supreme Court’s interpretation of § 200.033(5)

constitutes an “unexpected and indefensible” break with prior

Nevada law. Williams has identified no pre-Cavanaugh

authority from Nevada courts that is inconsistent with the rule

Cavanaugh adopted, and we have found none. Indeed,

Cavanaugh’s interpretation of § 200.033(5) accords with a

1978 decision from the Florida Supreme Court interpreting a

nearlyidentical statute, which indicates that the interpretation

adopted by the Nevada Supreme Court in Cavanaugh reflects

a reading of the provision’s text that could reasonably have

been expected. See Riley v. State, 366 So. 2d 19, 22 (Fla.

1978).

E. Adequacy of Nevada’s Timeliness Bar

The district court held that many of Williams’ claims are

procedurally defaulted under Nevada Revised Statutes

§ 34.726. That provision imposes a general one-year

deadline for the filing of petitions for post-conviction relief. 

As noted above, Williams filed his sixth and final state

petition for post-conviction relief in March 2003 to exhaust

certain of his federal claims. The Nevada Supreme Court

declined to consider most of the claims raised in the 2003

petition on the ground that they were untimely under

§ 34.726. In the district court, the State moved to dismiss the

vast majority of Williams’ claims, contending that § 34.726

is an independent and adequate state procedural rule that bars

federal habeas review. The district court granted the State’s

motion to dismiss as to many of the claims raised in
56 WILLIAMS V. FILSON

Williams’ third amended federal habeas petition. Williams

contends that § 34.726 is neither adequate to support the

judgment nor independent of federal law and therefore cannot

preclude federal review.

Under the procedural bar doctrine, a state court’s

application of a procedural rule can preclude federal habeas

review only if the rule is independent of federal law and

adequate to support the judgment. Coleman, 501 U.S. at

729–30. To be adequate, the rule must be “firmly established

and regularly followed” at the time of the purported default. 

Beard v. Kindler, 558 U.S. 53, 60 (2009) (quoting Lee v.

Kemna, 534 U.S. 362, 376 (2002)). The State bears the initial

burden of pleading the existence of a state procedural ground. 

Bennett v. Mueller, 322 F.3d 573, 585–86 (9th Cir. 2003). If

a state procedural ground exists, the burden then shifts to the

petitioner, who must assert “specific factual allegations that

demonstrate the inadequacy of the state procedure, including

citation to authoritydemonstrating inconsistent application of

the rule.” Id. at 586. If the petitioner carries his burden, the

burden shifts back to the State, which must show that the

procedural rule “has been regularly and consistently applied

in habeas actions.” Id.

The State has satisfied its initial burden by pleading the

existence of a procedural rule—§ 34.726—that, if applicable,

is adequate to support the state court’s judgment. In its order

affirming the denial of Williams’ final state habeas petition,

the Nevada Supreme Court held that the petition was

untimely because it was filed 16 years after the resolution of

Williams’ direct appeal. The court determined that Williams

could not show good cause to excuse his procedural default.
WILLIAMS V. FILSON 57

Under Bennett, Williams bears the burden of “asserting

specific factual allegations that demonstrate the inadequacy

of the state procedure.” Id. In an attempt to meet this burden,

Williams contends that the rule was not clearly established or

consistently applied at the time of his default. He also argues

that his claims are not defaulted because the Nevada Supreme

Court addressed them on the merits, and its decision was thus

dependent on federal law.

To determine whether § 34.726 is a procedural bar to

federal review, we must examine how the rule was applied

“at the time the claim should have been raised.” Fields v.

Calderon, 125 F.3d 757, 760 (9th Cir. 1997) (quoting

Calderon v. U.S. District Court, 103 F.3d 72, 75 (9th Cir.

1996)). This date, known as the “trigger date,” id., is not as

simple to pin down here as in some of our prior cases. That

is because the one-year time bar imposed by § 34.726 did not

take effect until January 1, 1993. By that time, Williams had

already filed five state post-conviction petitions. So the only

petition that could have been rendered untimely by § 34.726

is his sixth and final petition, which he did not file until 2003.

In 2001, the Nevada Supreme Court held for the first time

that § 34.726 applies to petitioners who had already filed a

petition for post-conviction relief prior to § 34.726’s effective

date. In Pellegrini v. State, 34 P.3d 519 (Nev. 2001),

abrogated on other grounds by Rippo v. State, 423 P.3d 1084,

1097 n.12 (Nev. 2018), the court held that petitioners seeking

to file timely successive petitions had one year from

§ 34.726’s effective date in which to do so. Id. at 529. Under

Pellegrini’s holding, then, Williams had until January 1,

1994, to file his sixth and final state court petition.
58 WILLIAMS V. FILSON

Williams argues that it was not possible for him to

comply with the 1994 deadline announced in Pellegrini

because that case was not decided until 2001, long after the

deadline had passed. This argument would have greater force

if Williams had moved swiftly to comply with Pellegrini. 

But he did not. Pellegrini was decided on November 15,

2001, and Williams did not file his sixth state court petition

until March 6, 2003, more than 15 months later. The district

court held that Williams’ default occurred from January 1,

1994, the date by which Williams was required to file his

successive petition, through March 6, 2003, the date he filed

his last state court petition. But even if we were to restart the

clock from the date that Pellegrini was decided, Williams’

delay was more than the applicable one-year limit, and so

constituted post-Pellegrini default. See Bennett, 322 F.3d at

579 (holding that petitioner’s substantial delay after the

California Supreme Court announced a new procedural rule

constituted a period of “continuous” default).

Williams identifies a number of cases in an attempt to

establish that § 34.726 has been inconsistently applied. We

note at the outset that two of the cases, Rippo v. State,

146 P.3d 279 (Nev. 2006), and Middleton v. Warden, 98 P.3d

694 (Nev. 2004), were decided after either default date and so

are not relevant to our analysis. See Fields, 125 F.3d at 761

(explaining that the trigger date is the date the default

occurred, not the date the rule was applied by the state court). 

We note also that, if we were to restart the clock from the

date that Pellegrini was decided, all but one of the cases

Williams cites would fall outside the relevant time period.

In any event, the cases decided within either relevant time

period do little to help Williams. In Bejarano v. Warden,

929 P.2d 922 (Nev. 1996), the Nevada Supreme Court
WILLIAMS V. FILSON 59

dismissed a successive post-conviction petition after applying

a different procedural rule, not the timeliness bar of § 34.726. 

The court added in a footnote that it had considered a claim

that the petitioner’s counsel was ineffective and “determined

that [the claim] is without merit.” Id. at 926 n.2. But this

isolated and passing reference does not demonstrate that the

particular state procedural rule here at issue was inadequate. 

See Moran v. McDaniel, 80 F.3d 1261, 1269 (9th Cir. 1996)

(explaining that a “brief reference to the record does not

establish that the Nevada Supreme Court inconsistently

applies that state’s procedural bar rule”). Indeed, as the

Nevada Supreme Court later explained, the Bejarano court’s

reference to the “merits” of the petitioner’s claim was not a

decision on the merits; rather, the court was clarifying that the

petitioner had failed to show prejudice sufficient to overcome

procedural bars. See State v. Eighth Judicial District Court

ex rel. County of Clark, 112 P.3d 1070, 1079 (Nev. 2005)

(County of Clark).

Williams’ reliance on Hill v. State, 953 P.2d 1077 (Nev.

1998), is equally unavailing. In Hill, the Nevada Supreme

Court reached the merits of an ineffective assistance of

counsel claim without discussing procedural bars. Although

the ineffective assistance claim was raised more than one year

after Hill’s conviction, the Nevada Supreme Court stated that

Hill’s petition was, in fact, timely filed. Id. at 1081. The

Nevada Supreme Court later clarified in Pellegrini that Hill’s

petition was timely under § 34.726 because the court

construed the petition as a timely re-filed or renewed first

petition. Pellegrini, 34 P.3d at 535.

Next, Williams cites Ford v. Warden, 901 P.2d 123 (Nev.

1995). However, we have previously held that Ford is “not
60 WILLIAMS V. FILSON

relevant” to the question whether § 34.726 has been applied

inconsistently. See Moran, 80 F.3d at 1270.

Nor does Williams’ citation of unpublished authority

undermine the adequacy of § 34.726. In Farmer v. State, No.

29120, Order Dismissing Appeal (Nev. Nov. 20, 1997), the

Nevada Supreme Court did not discuss § 34.726 because it

denied a post-conviction petition on a different procedural

ground. No. 2:98-cv-00056, Dkt. No. 136-5, at 47. 

Similarly, in Nevius v. Warden, Nos. 29027, 29028, Order

Dismissing Appeal and Denying Petition for Writ of Habeas

Corpus (Nev. Oct. 9, 1996), the Nevada Supreme Court

explained that it was disposing of the petitioner’s claims on

other procedural grounds, and that its discussion of the merits

was “strictly for the purpose of demonstrating that [Nevius]

cannot overcome his procedural defaults by a showing of

actual prejudice.” A reference to the merits of a petition for

purposes of determining whether prejudice can excuse a

procedural bar does not constitute a decision on the merits

inconsistent with the application of a procedural bar. See

Moran, 80 F.3d at 1269. Finally, in Feazell v. State, No.

37789, Order Affirming in Part and Vacating in Part (Nev.

Nov. 14, 2002), the only case cited by Williams that was

decided within a year of Pellegrini, the Nevada Supreme

Court vacated the petitioner’s capital sentence and remanded

for resentencing without referencing the timeliness bar under

§ 34.726. No. 2:98-cv-00056, Dkt. No. 136-5, at 52–60. But

the Nevada Supreme Court later explained that there was

good cause to excuse Feazell’s late filing. See County of

Clark, 112 P.3d at 1080.

Even if the cited authority could be deemed sufficient to

satisfy Williams’ burden under Bennett, the State has carried

its “ultimate burden” of showing that the state rule “has been
WILLIAMS V. FILSON 61

regularly and consistently applied” throughout both relevant

time periods. Bennett, 322 F.3d at 586. At most, the cases

Williams identifies show that the Nevada Supreme Court has

occasionally exercised its discretion to consider the merits of

untimely petitions. But “a discretionary rule can be ‘firmly

established’ and ‘regularlyfollowed’—even if the appropriate

exercise of discretion may permit consideration of a federal

claim in some cases but not others.” Beard, 558 U.S. at

60–61. For its part, the State has identified a number of

cases, both pre- and post-Pellegrini, demonstrating that the

Nevada Supreme Court has regularly applied § 34.726 to bar

untimely petitions. These decisions show that the Nevada

Supreme Court has applied the timeliness rule “in the vast

majority” of cases to which the rule applies. Scott v. Schriro,

567 F.3d 573, 580 (9th Cir. 2009) (per curiam) (internal

quotation marks omitted).

Because Nevada Revised Statutes § 34.726 is an

independent and adequate state procedural bar to federal

review, we affirm the district court’s order dismissing the

following claims: 3, 5–7, 10–13, 15, and 17–38.

The district court also initially dismissed several of

Williams’ ineffective assistance of counsel claims—Claims

1(D), 1(E), 1(H), 1(I), and 1(J)—on the basis that they, too,

were procedurally defaulted under § 34.726. After the

Supreme Court issued its decision in Martinez, the district

court recognized that Williams might be able to show cause

for this default if he could establish ineffective assistance of

post-conviction counsel. However, the district court

concluded that these defaulted ineffective assistance of

counsel claims were also time-barred under AEDPA’s oneyear statute of limitations, and so it declined to conduct a

Martinez analysis. As explained above in section II.A,
62 WILLIAMS V. FILSON

Williams is entitled to equitable tolling of AEDPA’s statute

of limitations, so all of the claims asserted in his September

1999 amended petition are timely under AEDPA. We

therefore reverse the dismissal of Claims 1(D), 1(E), 1(H),

1(I), and 1(J) and remand for the district court to determine in

the first instance whether Williams’ procedural default is

excused under Martinez.

F. Rule 60(b) Motion

After the district court entered final judgment in 2012,

Williams filed a motion under Federal Rule of Civil

Procedure 60(b) raising a new argument based on Hurst v.

Florida, 136 S. Ct. 616 (2016). According to Williams,

Hurst established a new rule in capital sentencing

proceedings requiring the factfinder to determine that the

aggravating circumstances outweigh the mitigating

circumstances beyond a reasonable doubt. In his Rule 60(b)

motion, he argued that this new rule entitles him to relief

because the Nevada Supreme Court did not apply the beyonda-reasonable-doubt standard when it conducted itsreweighing

analysis in 2006 and 2007. The district court denied

Williams’ motion on the ground that it was a disguised

second or successive federal habeas petition. Our court

subsequently granted Williams a certificate of appealability

on that issue.

Williams challenges the district court’s denial of his Rule

60(b) motion in Case No. 17-15768. As a backup, he has also

filed an application for leave to file a second or successive

petition under 28 U.S.C. § 2244(b)(3) in Case No. 17-71510.

We find it unnecessary to decide whether Williams’ Rule

60(b) motion was a disguised second or successive petition. 
WILLIAMS V. FILSON 63

To expedite resolution of these proceedings, we will assume

without deciding that it was not, and that the district court

was therefore permitted to rule on the motion. See Jones v.

Ryan, 733 F.3d 825, 838 (9th Cir. 2013). On the merits,

however, it is clear under Ybarra v. Filson, 869 F.3d 1016

(9th Cir. 2017), that Williams is not entitled to relief. In

Ybarra, we held that even if Hurst established the new rule

Williams urges, that rule would not apply retroactively in

cases like this one on collateral review. Id. at 1033. 

Moreover, Williams is not entitled to relief for the additional

reason that his Rule 60(b) motion rests on an incorrect factual

premise. When the Nevada Supreme Court conducted its

reweighing analysis, it expressly applied the beyond-areasonable-doubt standard: “After reweighing here, we

conclude beyond a reasonable doubt that absent the erroneous

aggravators the sentencing panel would have found Williams

death eligible and imposed a sentence of death.”

We affirm the district court’s denial of Williams’ Rule

60(b) motion. We deny his application to file a second or

successive petition under 28 U.S.C. § 2244(b)(3).

III. Conclusion

In Case No. 13-99002, we AFFIRM in part, REVERSE

in part, and REMAND for further proceedings. In

particular, we conclude that the district court erred by

denying Williams equitable tolling, which requires us to

reverse the court’s dismissal of Claims 1(C), 1(D), 1(E),

1(H), 1(I), 1(J), 9, and 14 and remand for further proceedings

as to those claims. We reverse the district court’s denial of

Williams’ request for an evidentiary hearing on Claim 1(F)

and remand for the district court to conduct an evidentiary

hearing as to that claim. We affirm the district court’s denial
64 WILLIAMS V. FILSON

of Williams’ third amended habeas petition in all other

respects.

In Case No. 17-15768, we AFFIRM the district court’s

denial of Williams’ motion under Federal Rule of Civil

Procedure 60(b).

In Case No. 17-71510, we DENY Williams’ application

to file a second or successive federal habeas petition.

The parties shall bear their own costs on appeal.