FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD KENNETH DJERF,

Petitioner-Appellant,

v.

CHARLES L. RYAN,

Respondent-Appellee.

No. 08-99027

D.C. No.

2:02-cv-00358-JAT

OPINION

Appeal from the United States District Court

for the District of Arizona

James A. Teilborg, District Judge, Presiding

Argued and Submitted March 26, 2019

San Francisco, California

Filed July 24, 2019

Before: M. Margaret McKeown, Ronald M. Gould,

and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge McKeown
2 DJERF V. RYAN

SUMMARY*

Habeas Corpus / Death Penalty

The panel affirmed the district court’s dismissal of an 

Arizona state prisoner’s 28 U.S.C. § 2254 habeas corpus 

petition challenging his conviction by guilty plea for four 

counts of first-degree murder and his capital sentence.

Following a period of appointed representation, 

petitioner waived counsel and represented himself. He 

entered guilty pleas, and counsel resumed representation for 

sentencing. 

The panel held that counsel did not provide 

constitutionally ineffective pre-trial assistance by failing 

adequately to communicate with petitioner or visit him in 

jail, or to diligently interview witnesses, review discovery, 

and examine evidence. The panel concluded that, under any 

standard of review, counsel’s conduct was not objectively 

unreasonable. Accordingly, petitioner’s claims of 

involuntary waiver of counsel and invalid guilty pleas, 

premised on ineffective pre-trial assistance, failed. Further, 

petitioner’s procedural default of the ineffective assistance 

claims was not excused.

The panel affirmed the district court’s denial of 

petitioner’s claim that counsel provided ineffective 

assistance during sentencing by failing to investigate, 

develop, and present additional mitigation evidence related 

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

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

to his family background and mental health. The panel 

concluded that the state post-conviction court did not 

unreasonably apply Supreme Court precedent in holding that 

there was no ineffective assistance of counsel during 

sentencing, and the district court did not abuse its discretion 

in denying petitioner’s request for an evidentiary hearing on 

that claim.

Finally, any error in the Arizona court’s impermissibly 

ignoring mitigating evidence of petitioner’s family 

background because it lacked a causal nexus to his crimes 

was harmless.

COUNSEL

Therese Michelle Day (argued) and Michael L. Burke,

Assistant Federal Public Defenders; Jon M. Sands, Federal 

Public Defender; Office of the Federal Public Defender,

Phoenix, Arizona; for Petitioner-Appellant.

Ginger Jarvis (argued), Assistant Attorney General; Lacey 

Stover Gard, Chief Counsel; Mark Brnovich, Attorney 

General; Office of the Attorney General, Phoenix, Arizona;

for Respondent-Appellee.
4 DJERF V. RYAN

OPINION

McKEOWN, Circuit Judge:

Richard K. Djerf killed the mother, father, brother, and 

sister of a former friend to avenge a petty theft. He was 

promptly arrested and charged with numerous crimes. After 

a year and a half of appointed representation, he waived 

counsel and represented himself. Djerf pleaded guilty to 

four counts of first-degree murder, and counsel resumed 

representation for sentencing. The trial judge imposed a 

capital sentence for each of the murder convictions. The 

Arizona Supreme Court did the same on de novo review. 

Arizona courts denied Djerf’s requests for post-conviction 

relief, and the district court dismissed his federal habeas 

petition. We affirm.

FACTUAL BACKGROUND1

Djerf and Albert Luna, Jr. were friends from their job at 

the local supermarket, but in early 1993 Albert stole several 

electronics and a firearm from Djerf’s apartment. Djerf 

reported the incident and his suspicions about Albert’s 

involvement to the police, who took no action. Djerf sought 

revenge several months later. Late one morning, Djerf 

arrived at the Luna family home with a handgun, knife, latex 

gloves, handcuffs, and fuse cord, using a vase with fake 

flowers as a ruse to gain entry. Albert’s mother and fiveyear-old brother were home; Djerf bound them and asked the 

mother whether she or her young son should die first and 

whether she knew Albert’s whereabouts. Djerf briefly 

 1 The following account of Djerf’s crimes was set forth by the 

Arizona Supreme Court on direct review. See State v. Djerf, 959 P.2d 

1274, 1279–80 (Ariz. 1998) (en banc).
DJERF V. RYAN 5

untied the mother, forcing her to load electronics and other 

valuables from the home into the family car.

Several hours later, Albert’s eighteen-year-old sister 

came home. Djerf bound and gagged her, cut off her clothes, 

and raped her before repeatedly stabbing her in the chest and 

head and slitting her throat. Djerf then told Albert’s mother 

what he had done to her daughter.

Shortly after, Albert’s father came home. Djerf 

handcuffed him and forced him to crawl on all fours and lay 

face down on his bed. Djerf struck him in the head several 

times with a baseball bat, removed his handcuffs, bound his 

hands with tape, and left him for dead. Djerf told the mother 

that he had killed her husband.

Djerf then attempted, but failed, to snap the boy’s neck 

and to electrocute him with a stripped electrical wire. The 

father, who had survived the earlier beating, charged and 

stabbed Djerf with a pocketknife. During the ensuing 

struggle, Djerf stabbed the father and then fatally shot him 

six times in front of the mother and boy. Djerf asked the 

mother whether she wanted to watch the boy die, or for him 

to watch her die, before shooting both in the head. He 

covered the bodies and the house with gasoline, turned on 

two stove burners, and placed cardboard and a rag on the 

stove, before fleeing the house in the family’s car. The 

cardboard and rag never ignited. When Albert returned to 

the house, he discovered the gruesome scene and notified the 

police.

Over the next several days, Djerf described the murders 

to his girlfriend and two other friends. Djerf was arrested 

shortly after.
6 DJERF V. RYAN

PROCEDURAL BACKGROUND

A grand jury charged Djerf with four counts of firstdegree murder, as well as first-degree burglary, kidnapping, 

sexual assault, aggravated assault, attempted arson, theft, 

and unlawful use of a prohibited weapon. Michael Vaughn 

and Alan Simpson were appointed as counsel, and they 

represented Djerf at numerous hearings over the next year 

and a half. In February 1995, Djerf wrote to the trial judge 

to express his displeasure with the frequency of counsels’ 

communication, their responsiveness, and their efforts to 

keep him apprised of trial strategy. Djerf requested that 

Vaughn and Simpson be withdrawn as counsel and asked to 

represent himself.

At a hearing several days later, the judge questioned 

Djerf at length to ensure he understood the disadvantages of 

self-representation and the severity of the potential penalties 

he faced. Counsel expressed their belief that Djerf was 

competent, but strongly advised against self-representation. 

The judge reiterated this advice, but nonetheless concluded 

Djerf knowingly, intelligently, and voluntarily waived his 

right to counsel, accepted the waiver of counsel, and 

appointed Vaughn and Simpson in an advisory capacity.

A few weeks later, the State requested an evaluation of 

Djerf’s competence. In a prescreening report, Dr. Jack Potts 

concluded that Djerf understood the nature of the charges 

and possible penalties, the pending proceedings, his 

constitutional rights, and the necessary waiver of those rights 

if he entered a guilty plea. According to the report, Djerf 

understood he faced a “far greater burden” if he represented 

himself, but believed he had “very little to lose” given that 

the case against him was so strong. The report concluded 

that Djerf was competent to represent himself and that 
DJERF V. RYAN 7

further evaluation of his competency was unnecessary. The 

trial judge agreed.

Several months later, Djerf sent a letter to the prosecutor 

offering to accept the maximum non-capital sentences on all 

charges in exchange for an agreement not to pursue the death 

penalty, though he admitted he had little negotiating 

leverage. The prosecutor declined, affirming the State’s 

intention to pursue death sentences on the murder charges. 

The prosecutor offered to dismiss all other charges if Djerf 

would plead guilty to the murder charges “with no 

agreements as to sentence.” Djerf consulted with Vaughn 

and decided to accept the offer. During the change of plea 

hearing, the judge conducted a thorough canvass and 

accepted Djerf’s guilty pleas.

Several weeks later, in September 1995, Djerf asked to 

remove Vaughn and Simpson as advisory counsel in light of 

their purported lack of attention and failure to communicate, 

and to appoint “effective” and “experienced” counsel for 

sentencing. Djerf stated that he “would prefer that counsel 

represent me for sentencing, but . . . I have pretty much lost 

trust in Mr. Vaughn and Mr. Simpson.” The trial judge 

denied the motion, noting the substantial work counsel had 

performed on Djerf’s case and their considerable experience 

in serious criminal cases. The judge concluded that

“appoint[ing] some new attorney now at this stage would . . . 

not be in the interest of justice” because it would cause 

further delay and Djerf might have the same complaints 

about different lawyers.

Djerf ultimately withdrew his waiver of counsel, and the 

court reappointed Vaughn and Simpson. The State 

presented its aggravation case over the course of five days in 

October 1995.
8 DJERF V. RYAN

After obtaining several continuances, Simpson presented 

Djerf’s mitigation case in February 1996.2 A jail guard 

testified to Djerf’s conduct in detention, referencing several 

minor disciplinary infractions but indicating he was not an 

especially problematic inmate. Arthur Hanratty, a courtappointed investigator, testified about Djerf’s upbringing, 

based on interviews with Djerf’s parents and sister and a 

review of background records, school documents, and other 

materials. Counsel also introduced a recorded interview 

with Djerf corroborating much of Hanratty’s testimony. The 

court then granted continuances for counsel’s ongoing 

development of potential mental health expert evidence. 

Counsel ultimately opted not to present any such evidence.

In late spring 1996, counsel filed a presentence 

memorandum, and the mitigation hearing resumed, with 

another jail guard testifying to Djerf’s respectful behavior 

and duties as a jail trustee serving meals. At the final 

sentencing hearing several weeks later, Djerf declined 

multiple offers to address the court before a sentence was 

rendered. The judge concluded that the State had proven 

three statutory aggravating factors for each murder and a 

fourth for the murder of the five-year-old boy. See Ariz. 

Rev. Stat. § 13-703(F)(5), (6), (8), (9) (1996). According to 

the judge, Djerf failed to prove any statutory or non-statutory 

mitigating factors: he “failed to show his difficult family 

background is a mitigating circumstance” because “[t]here 

is no evidence that any alleged difficult family background 

had any effect on the defendant’s behavior during these 

killings that was beyond the defendant’s control.” The judge 

 2 Vaughn was unable to attend the hearing because he “had to attend 

to matters in another court.”
DJERF V. RYAN 9

entered capital sentences for each of the four murder 

convictions.

In May 1998, the Arizona Supreme Court affirmed the 

convictions and, on de novo review, imposed the same 

capital sentences. Djerf, 959 P.2d at 1281–90. The court 

decided that Djerf’s pre-trial waiver of counsel was valid and 

that the trial judge did not abuse his discretion by declining 

to conduct a competency hearing. Id. at 1281–84. The court 

also concluded that three aggravating factors had been 

proven for all four of the murders, a fourth aggravating 

factor applied to the murder of the boy, and Djerf failed to 

prove any mitigating factors. Id. at 1286–90. According to 

the Arizona Supreme Court, Djerf’s difficult family 

background was not mitigating because such evidence “is 

not relevant unless the defendant can establish that his 

family experience is linked to his criminal behavior.” Id. at 

1289 (citing State v. Ross, 886 P.2d 1354, 1363 (Ariz. 

1994)). The U.S. Supreme Court denied Djerf’s petition for 

writ of certiorari. Djerf v. Arizona, 525 U.S. 1024 (1998) 

(mem.).

In February 2000, the Arizona Supreme Court appointed 

Jamie McAlister as counsel for Djerf’s state post-conviction 

proceedings. A year and a half later, a different trial judge 

dismissed Djerf’s petition for post-conviction relief. In early 

2002, the Arizona Supreme Court summarily denied a 

petition for review.

Djerf then filed a federal habeas petition in district court. 

See 28 U.S.C. § 2254. In September 2004, Djerf requested 

discovery and an evidentiary hearing. A year later, the 

district court denied Djerf’s request and dismissed several 

claims as either procedurally barred or non-cognizable. In 

September 2008, the district court denied the remaining 

claims, but granted a certificate of appealability for two of 
10 DJERF V. RYAN

them: (i) whether Djerf’s pre-trial waiver of counsel was 

involuntary because he was forced to decide between selfrepresentation and incompetent counsel, and (ii) whether 

Simpson and Vaughn provided ineffective assistance of 

counsel during sentencing by failing to investigate and 

present further mitigation evidence related to Djerf’s family 

background and mental health. Djerf appealed.

In March 2009, Djerf filed another petition for postconviction relief in state court claiming his guilty pleas were 

not knowing, intelligent, or voluntary and that McAlister 

provided ineffective assistance during the initial postconviction proceedings. The state court rejected the first 

claim as precluded because it was denied by the Arizona 

Supreme Court on direct appeal. The court then dismissed 

the second claim on the grounds that Djerf did not have a 

constitutional right to counsel in post-conviction 

proceedings. A few months later, the Arizona Supreme 

Court summarily dismissed the petition.

In 2012, the U.S. Supreme Court decided Martinez v. 

Ryan, which held that “[i]nadequate assistance of counsel at 

initial-review collateral proceedings may establish cause for 

a prisoner’s procedural default of a claim of ineffective 

assistance at trial.” 566 U.S. 1, 9 (2012). We granted Djerf’s 

motion for a partial remand to permit him to pursue several 

claims, including whether McAlister’s allegedly inadequate 

representation excused Djerf’s failure to exhaust certain 

claims in the initial state post-conviction proceedings.

In April 2017, the district court denied all remaining 

claims, holding that Djerf did not establish cause and 

prejudice to set aside the procedural default of his pre-trial 

ineffective assistance claim. On appeal to this court, Djerf 

argued that the Arizona courts impermissibly ignored his 

family background mitigation evidence by employing an 
DJERF V. RYAN 11

unconstitutional “causal nexus” test. See generally Eddings 

v. Oklahoma, 455 U.S. 104 (1982). We expanded the 

certificate of appealability to include the causal nexus claim 

and the claims denied by the district court on partial remand.

JURISDICTION AND STANDARDS OF REVIEW

We have jurisdiction under 28 U.S.C. §§ 1291 and 

2253(a). We review de novo the district court’s denial of a 

writ of habeas corpus and for clear error its findings of fact. 

Stanley v. Schriro, 598 F.3d 612, 617 (9th Cir. 2010). 

Because Djerf’s federal habeas petition was filed after April 

24, 1996, he must satisfy the standards set forth in the 

Antiterrorism and Effective Death Penalty Act (“AEDPA”). 

Under AEDPA, we may not grant relief unless a state court’s 

ruling “was contrary to . . . clearly established Federal law[] 

as determined by the Supreme Court,” “involved an 

unreasonable application of” such law, or “was based on an 

unreasonable determination of the facts in light of the 

evidence presented in the State court proceeding.” 28 U.S.C. 

§ 2254(d). In conducting this review, we look to the last 

reasoned state court decision for each claim. White v. Ryan, 

895 F.3d 641, 665 (9th Cir. 2018).

ANALYSIS

Djerf contends that Simpson and Vaughn provided 

ineffective assistance during their pre-trial representation. 

He acknowledges that he failed to raise, and therefore 

procedurally defaulted, this claim in the initial state postconviction proceedings. However, he argues that Martinez

excuses the procedural default, because McAlister’s 

ineffective assistance during post-conviction proceedings 

was the reason he failed to raise the claim. Djerf advances 

two other claims premised on Simpson and Vaughn’s 

purportedly deficient pre-trial representation: his waiver of 
12 DJERF V. RYAN

counsel was involuntary because he was forced to decide 

between ineffective counsel and self-representation, and his 

guilty pleas were invalid because the trial judge failed to 

disclose that he was forfeiting his right to proceed with 

competent counsel. Because the record does not establish 

that Simpson and Vaughn’s pre-trial representation was 

constitutionally deficient, the procedural default is not 

excused, and the waiver of counsel and guilty pleas claims 

fail.

Djerf advances two other claims on appeal. He contends 

that Simpson and Vaughn provided ineffective assistance 

during sentencing by failing to investigate and present 

further evidence of his difficult family background and 

mental health issues. Affording the necessary deference to 

the state court’s denial of this claim under AEDPA, we 

affirm. Finally, Djerf contends that the Arizona courts 

impermissibly ignored mitigating evidence of his family 

background because it lacked a causal nexus to his crimes. 

We conclude any such error was harmless.

I. Claims Premised on Ineffective Pre-Trial 

Representation

As noted, several of Djerf’s claims are premised on 

ineffective pre-trial assistance by Vaughn and Simpson. 

Specifically, Djerf contends that they failed to adequately 

communicate with or visit him in jail, or to diligently 

interview witnesses, review discovery, and examine 

evidence. The record belies these complaints. Jail visitor 

logs and Djerf’s own correspondence demonstrate that 

counsel visited him in the months preceding his request for 

self-representation and communicated with him regularly 

over the telephone and at court. The record likewise 

establishes that counsel performed significant work during 

this time: they interviewed more than fifty witnesses, with 
DJERF V. RYAN 13

some interviews lasting several days; they initiated 

negotiations for a plea deal; they filed various motions on 

Djerf’s behalf and attended regular hearings; they prepared 

for parallel, consolidated proceedings involving use and 

treatment of DNA evidence; and they spent nearly an entire 

day reviewing the physical evidence in police custody. 

During his waiver of counsel hearing, and again in a hearing 

at the onset of sentencing proceedings, Djerf acknowledged 

that Vaughn and Simpson had done considerable work on 

his behalf during their months of representation. The record 

demonstrates that brief continuances sought by counsel were 

reasonably necessary to permit the continued preparation for 

trial and accommodate health issues and other case 

responsibilities, not, as Djerf asserts, because counsel had 

failed to start any serious work on his case.

We see no indication that Simpson and Vaughn’s 

“representation fell below an objective standard of 

reasonableness.” Strickland v. Washington, 466 U.S. 668, 

688 (1984). They satisfied their “duty to make reasonable 

investigations” by interviewing dozens of witnesses and 

seeking out and reviewing evidence. Id. at 691. The record 

rebuts Djerf’s conclusory allegations that counsel “did 

nothing at all to prepare a defense.” Crandell v. Bunnell, 

25 F.3d 754, 755 (9th Cir. 1994) (per curiam). At no point 

was there a “complete breakdown in communication,” 

Daniels v. Woodford, 428 F.3d 1181, 1201 (9th Cir. 2005), 

nor did counsel ever fail to “consult with the defendant on 

important decisions [or] to keep the defendant informed of 

important developments in the course of the prosecution.” 

Strickland, 466 U.S. at 688. Again, despite Djerf’s 

suggestions to the contrary, the record does not reveal any 

significant periods of time during which counsel failed to 

communicate with or respond to him. See Crandell, 25 F.3d 

at 755 (suggesting that complete silence for the first two 
14 DJERF V. RYAN

months of representation raised questions about competence 

of counsel). Under any standard of review, Simpson and 

Vaughn’s conduct was not objectively unreasonable.

Because the record fails to establish that Vaughn and 

Simpson provided constitutionally inadequate pre-trial 

assistance, it also fails to establish that Djerf was forced to 

choose between self-representation and incompetent 

counsel. As a result, his claim that his waiver of counsel was 

involuntary fails. So does his related argument that the trial

judge erred by failing to further investigate his motivation 

for removing counsel and therefore discover the purportedly 

ineffective representation.3 Djerf’s challenge to the validity 

of his guilty pleas also fails—the record does not establish 

that counsel were incompetent, so Djerf did not forfeit any 

right to proceed with competent counsel. No clearly 

established Supreme Court precedent entitles Djerf to relief 

on his waiver of counsel and guilty plea claims, and the 

Arizona courts reasonably applied the facts in the record to 

deny them.

For the same reasons, we conclude that the procedural 

default of the underlying ineffective assistance claim is not 

excused. To excuse a procedural default, a habeas petitioner 

must establish both “cause” and “prejudice.” Coleman v. 

Thompson, 501 U.S. 722, 750 (1991). Typically, ineffective 

 3 Djerf also argues that his waiver of counsel and request for selfrepresentation in February 1995 should have been construed as a request 

to substitute counsel and that the trial court erred by failing to do so. This 

argument is not consistent with the record; Djerf several times expressly 

stated his desire to represent himself, despite strong discouragement 

from the judge and counsel. At no point prior to or during the February 

1995 hearing did Djerf intimate a desire for other counsel. In view of 

this record, the Arizona Supreme Court’s denial of this claim was not an 

unreasonable application of Supreme Court precedent. See Djerf, 

959 P.2d at 1283–84.
DJERF V. RYAN 15

assistance of post-conviction counsel cannot excuse a 

procedural default. See Martinez, 566 U.S. at 9, 13–14. 

However, Martinez created a narrow exception in Arizona 

and other states that bar ineffective assistance claims on 

direct appeal; in those states, the initial collateral 

proceedings are the first opportunity to bring such claims. 

Id. The Supreme Court subsequently expanded this 

exception, holding that where a “state procedural 

framework, by reason of its design and operation, makes it 

highly unlikely in a typical case that a defendant will have a 

meaningful opportunity to raise a claim of ineffective 

assistance of trial counsel on direct appeal, our holding in 

Martinez applies.” Trevino v. Thaler, 569 U.S. 413, 429 

(2013). To satisfy “cause” in this context, Djerf must show 

that McAlister was ineffective under Strickland—that is, 

McAlister’s post-conviction representation was deficient 

because she failed to bring the pre-trial ineffective assistance 

claim, and there is a “reasonable probability” that, had the 

claim been raised, “the result of the post-conviction 

proceedings would have been different.” Clabourne v. 

Ryan, 745 F.3d 362, 377 (9th Cir. 2014), overruled on other 

grounds by McKinney v. Ryan, 813 F.3d 798, 819 (9th Cir. 

2015) (en banc). To satisfy “prejudice,” Djerf must show 

that the underlying claim is “substantial”—that is, that it has 

“some merit.” Id. There is considerable overlap between 

these requirements, since each considers the strength and 

validity of the underlying ineffective assistance claim. See 

id.

Even if we were to assume that Djerf’s pre-trial 

ineffective assistance claim was substantial (which would be 

a stretch in light of the record and the service performed by 

counsel), there is no reasonable probability that advancing 

that claim during initial post-conviction proceedings would 

have altered the result. See Rodney v. Filson, 916 F.3d 1254, 
16 DJERF V. RYAN

1260 (9th Cir. 2019) (clarifying that a petitioner represented 

by counsel in post-conviction proceedings must satisfy both 

Strickland prongs). Djerf’s post-hoc criticisms of counsel’s 

pace of preparation were contradicted by his statements at 

the time, as well as those of the prosecutor and trial judge. 

The record shows regular visits and communication between 

counsel and Djerf, and Djerf has not identified any authority, 

existing then or now, suggesting that the frequency and 

nature of communication was constitutionally infirm. Even 

if Djerf had been able to show that the representation was 

constitutionally deficient, he would have struggled to show 

that the purported deficiencies resulted in sufficient 

prejudice to warrant overturning his four murder 

convictions. We cannot excuse the procedural default of this 

claim under these circumstances.

II. Ineffective Representation During Sentencing

We next turn to Djerf’s claim that Simpson and Vaughn 

rendered ineffective assistance during sentencing by failing 

to further investigate, develop, and present additional 

mitigation evidence related to his family background and 

mental health. The trial judge’s post-conviction denial of 

this claim was the last reasoned state court decision, so we 

review that ruling under AEDPA. See Hibbler v. Benedetti, 

693 F.3d 1140, 1146 (9th Cir. 2012). In the district court, 

Djerf requested an evidentiary hearing in connection with 

this claim. As explained below, the state post-conviction 

court did not unreasonably apply Supreme Court precedent 

in holding there was no ineffective assistance of counsel 

during sentencing and the district court did not err in denying 

Djerf’s request to expand the record.
DJERF V. RYAN 17

A. Family Background

Djerf’s argument that counsel provided ineffective 

assistance by failing to obtain more background records and 

conduct more interviews was rejected by the post-conviction 

judge because Djerf failed to present any supporting 

evidence, and instead merely “speculate[d] that if his 

childhood was investigated, some mitigating evidence might 

have been discovered.” We review the post-conviction 

judge’s determination under AEDPA and determine it was 

not an unreasonable application of Supreme Court 

precedent.

Throughout the entirety of his state post-conviction and 

federal habeas proceedings, Djerf has failed to identify any 

evidence related to his childhood that counsel should have, 

but did not, uncover. Crucially, Djerf did not point the postconviction judge to any evidence sentencing counsel failed 

to present that was meaningfully different from what was 

introduced at mitigation. It was Djerf’s burden to establish 

a reasonable probability that the result of the proceedings 

would have been different but for counsel’s purported errors. 

Strickland, 466 U.S. at 694. Strickland prejudice is not 

established by mere speculation that witness testimony 

“might have given information helpful to” the defense. 

Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001). 

Under the significant deference required by AEDPA, the 

post-conviction judge’s denial of this claim was neither an 

unreasonable application of clearly established law nor an 

unreasonable determination of the facts in light of the 

evidence in the record at that time.

B. Mental Health

Djerf’s argument that counsel provided ineffective 

assistance by failing to investigate and develop additional 
18 DJERF V. RYAN

mental health mitigating evidence was rejected by the postconviction judge for a similar reason: Djerf merely relied on 

expert reports prepared prior to sentencing to speculate that 

“there might be other mitigating information that should 

have been presented.” Under AEDPA, the state court’s 

ruling that Djerf did not suffer ineffective assistance of 

counsel due to the alleged failure to develop additional 

mental health mitigating evidence was not an unreasonable 

application of Supreme Court precedent.

In his initial post-conviction proceedings, Djerf’s 

appointed mental health expert conducted extensive 

neurological testing. However, Djerf did not introduce any 

reports or other evidence from this expert in support of his 

petition. Instead, he submitted Dr. Potts’s prescreening 

report from April 1995 and reports prepared by Dr. 

McMahon, Dr. Walter, and Dr. Duane prior to sentencing.

In the winter of 1995–96, Dr. McMahon conducted 

several hours of psychological testing and prepared a report, 

noting that Djerf’s results were suggestive of “learning 

disabilities and/or some diffuse neuropsychological 

dysfunction.” He recommended further evaluation. Dr. 

Walter then completed neuropsychological testing; he 

reported that Djerf performed “relatively well in [a] number 

of areas,” though there were indications that he might have 

a “focal cerebral deficit in the right temporal area.” To better 

understand the possible “right temporal disturbance,” Dr. 

Walter recommended further neuropsychiatric evaluation to 

seek out possible “abnormal electrical activity.” Dr. Duane 

then conducted an electro-encephalogram and advanced 

brain-mapping. Dr. Duane summarized Djerf’s 

developmental history, noting that as an infant, Djerf “fell 

over and hit his head with a large knot” and reportedly fell 

often in the subsequent years. Dr. Duane concluded that the 
DJERF V. RYAN 19

test results were consistent with a personality disorder, not 

brain dysfunction. Dr. McMahon compiled the results of all 

these findings and conclusions into a final report. Dr. 

McMahon intimated that the test results are consistent with 

an antisocial personality disorder, not a delusional disorder 

or schizophrenia. Dr. McMahon acknowledged that Djerf 

likely has “some learning disabilities that . . . affect his 

ability to organize a situation and make effective decisions,” 

but concluded “there is an absence of a sufficiently severe 

mental defect that it would have precluded his appreciating 

the wrongfulness of his acts, or resulted in an inability to 

conform his behavior to the requirement of the law.” 

Counsel received each report, and, several days after 

receiving Dr. McMahon’s final report, notified the court they 

would not be submitting any expert mental health evidence 

in mitigation.

The post-conviction judge considered and rejected 

Djerf’s argument that sentencing counsel provided 

ineffective assistance because they failed to adequately 

investigate and develop evidence of “a serious brain-related 

injury” that Djerf experienced as a child.4 At least two of 

 4 Djerf argues that AEDPA deference does not apply here because 

the post-conviction judge made a factual error. Indeed, the judge 

incorrectly stated that the reports prepared by Dr. McMahon, Dr. Walter, 

and Dr. Duane had been “considered by the court prior to sentencing.” 

Counsel did not submit the reports to the court. However, this minor 

error does not unlock de novo review. See 28 U.S.C. § 2254(d). The 

judge rejected this claim because Djerf failed to show there was helpful 

mental evidence that sentencing counsel could have, but failed to, 

develop. Djerf’s speculation that such evidence might have existed was 

insufficient. Whether the sentencing court reviewed certain reports prior 

to sentencing had no bearing on this holding. De novo review is 

authorized when a “decision . . . was based on an unreasonable 

determination of the facts,” not every time an order or opinion includes 

an incorrect factual finding. 28 U.S.C. § 2254(d) (emphasis added).
20 DJERF V. RYAN

the experts who evaluated Djerf prior to sentencing were 

aware of his alleged childhood head injury. Djerf does not 

specify what further information counsel should have but 

failed to uncover and provide to the experts to assist in their 

evaluations: Djerf’s mother admitted she did not seek 

medical attention for her son, and no other family member 

recalled the injury or any side effects. The McMahon, 

Walter, and Duane reports could reasonably be read to rule 

out schizophrenia or any other comparably mitigating 

disorder. Djerf asked the post-conviction judge to deduce 

from these reports that unidentified background evidence 

would have changed the diagnosis or that other experts, 

equipped with such information, might have diagnosed him 

with schizophrenia. It was not unreasonable for the judge to 

decline the invitation to make this speculative leap. That 

Djerf later found experts who might nominally disagree with 

the earlier findings, see infra p.23–24, does not render the 

state court’s ruling unreasonable, as no evidence establishing 

a diagnosis helpful to the defense was in the state postconviction record. See Murray v. Schriro, 745 F.3d 984, 

1000 (9th Cir. 2014) (AEPDA review limited to evidence in 

state court record). Any argument that sentencing counsel 

erred by failing to present reports or testimony from Dr. 

McMahon, Dr. Walter, or Dr. Duane during mitigation is 

equally unavailing. “When counsel focuses on some issues 

to the exclusion of others, there is a strong presumption that 

[they] did so for tactical reasons . . . .” Yarborough v. 

Gentry, 540 U.S. 1, 8 (2003) (per curiam). Given that many 

aspects of their reports were harmful to Djerf’s mitigation 

case, that presumption remains unrebutted here. For all of 

these reasons, we hold that the post-conviction judge 
DJERF V. RYAN 21

reasonably applied Strickland in concluding that sentencing 

counsel did not provide ineffective assistance.5

We need not reach the second prong of Strickland, but if 

we did, we would conclude that the sentencing counsel’s 

failure to investigate, develop, and present additional mental 

health evidence was not prejudicial. Again, it is not clear 

what evidence counsel would have uncovered had they more 

vigorously investigated the purported head injury, or that the 

discovery of such evidence would have resulted in expert 

evidence supporting a schizophrenia diagnosis. Such 

speculation rarely creates a “reasonable probability” that a 

different result would have occurred absent the purportedly 

deficient representation. Strickland, 466 U.S. at 694. The 

prejudice inquiry also requires consideration of the State’s 

aggravation case, which was remarkably strong: at least 

three aggravating factors applied for each victim, including 

undisputed, vivid details of gruesome physical, sexual, and 

emotional abuse preceding the killings. The post-conviction 

judge reasonably concluded that any deficient performance 

by sentencing counsel was harmless under Strickland.

 5 Djerf claims that the post-conviction judge never reached the 

question of deficient performance and instead ruled only on prejudice. 

Accordingly, he insists we review Strickland performance de novo. See 

Porter v. McCollum, 558 U.S. 30, 39 (2009) (per curiam). We disagree; 

read fairly, the judge’s ruling addresses both prongs of the analysis. But 

even if we agreed with Djerf’s take on the ruling, we would reach the 

same ultimate conclusion under de novo review. Counsel conducted a 

“thorough investigation of law and facts relevant to [Djerf’s] plausible 

options” for mitigation, and we must therefore afford significant 

deference to their tactical decisions. Hernandez v. Chappell, 923 F.3d 

544, 550 (9th Cir. 2019) (quoting Strickland, 466 U.S. at 690). Their 

investigation of possible mental health mitigation evidence was not 

unreasonable under prevailing professional norms. Strickland, 466 U.S. 

at 688.
22 DJERF V. RYAN

C. Evidentiary Hearing

In the district court, Djerf requested an evidentiary 

hearing in connection with his ineffective assistance of 

sentencing counsel claim, and he now seeks a remand to 

permit expansion of the record and reconsideration of this 

claim. The district court denied the request because Djerf 

had not been diligent in developing the proffered factual 

basis in state court. For the following reasons, we affirm.

Under Cullen v. Pinholster, when a claim is subject to 

AEDPA review, a district court is limited to the record that 

was before the state court that adjudicated the claim on the 

merits. 563 U.S. 170, 185 (2011). The entirety of the 

ineffective sentencing counsel claim is subject to AEDPA 

deference, so no evidentiary expansion is permitted. Even if 

we granted a remand, Pinholster would prohibit the 

introduction of new evidence.

However, Pinholster was issued several years after Djerf 

requested and the district court denied an evidentiary 

hearing. Lacking Pinholster’s guidance, the district court 

considered whether Djerf satisfied the exception for 

evidentiary expansion under 28 U.S.C. § 2254(e)(2)(A)(ii), 

which requires that “a factual predicate that could not have 

been previously discovered through the exercise of due 

diligence.” See Dickens v. Ryan, 740 F.3d 1302, 1321 (9th 

Cir. 2014) (en banc) (expansion of the record is “severely 

restrict[ed]” when lack of diligence prevented factual 

development in post-conviction proceedings). Pinholster

clarified that this statutory exception applies only to claims 

reviewed de novo; evidentiary expansion is prohibited for a 

claim subject to AEDPA review, regardless of diligence. 

563 U.S. at 185–86.
DJERF V. RYAN 23

Even if we assume, as the district court did, that Djerf’s 

claim was covered by § 2254(e)(A)(2)—because we 

reviewed the ineffective assistance of sentencing counsel 

claim de novo—we conclude that the district court did not 

abuse its discretion by declining to expand the record. See 

West v. Ryan, 608 F.3d 477, 484 (9th Cir. 2010) (reviewing 

decision to expand record for abuse of discretion).

As a threshold matter, Djerf’s request for an evidentiary 

hearing in the initial post-conviction proceedings was not 

sufficient to demonstrate diligence. Cf. Baja v. Ducharme, 

187 F.3d 1075, 1078–79 (9th Cir. 1999); see also Dowthitt 

v. Johnson, 230 F.3d 733, 758 (5th Cir. 2000) (“Mere 

requests for evidentiary hearings will not suffice; the 

petitioner must be diligent in pursuing the factual 

development of his claim.”). Moreover, Djerf fails to 

identify any new evidence that he presented to the state court 

in support of that request or any proffer he made to 

demonstrate why an evidentiary hearing at that time would 

have been worthwhile.

In the district court, Djerf sought a hearing to present 

testimony from his sister, his mother, Simpson, and 

Hanratty. A short declaration from his sister offered a few 

new, minor details about Djerf’s upbringing—e.g., their 

father spanked him as a child—but otherwise only 

corroborated the family background evidence originally 

presented in mitigation. Djerf fails to explain how the 

testimony from the other witnesses would vary meaningfully 

from the family background evidence presented in 

mitigation, or why such evidence could not have been 

procured through the exercise of diligence during the initial 

post-conviction proceedings.

Djerf also seeks to present testimony from new medical 

experts who will testify in support of his theory that he 
24 DJERF V. RYAN

suffered from schizophrenia at the time of his crimes. Djerf 

and post-conviction counsel knew that brain dysfunction and 

schizophrenia had been investigated by sentencing counsel 

and several experts. Yet, despite having an appointed expert 

in the post-conviction proceedings, Djerf did not present any 

new medical, psychological, or neurological evidence at that 

time. Djerf fails to explain why the factual basis for this 

claim would have evaded discovery if he and his postconviction counsel had been diligent. In sum, Djerf did little 

to show that an evidentiary hearing was warranted as to his 

family background or mental health, and the district court 

did not abuse its discretion by refusing to hold one.

III. Causal Nexus

Finally, we turn to Djerf’s claim that the Arizona courts 

impermissibly refused to consider mitigating evidence of his 

difficult family background because it lacked a causal 

connection to his crimes. We focus on the Arizona Supreme 

Court’s de novo review of Djerf’s sentence and consider the 

trial judge’s rulings only to the extent that they were 

“adopted or substantially incorporated” by the higher court. 

McKinney, 813 F.3d at 819. We have addressed many causal 

nexus appeals in recent years and need not repeat the history 

and nuance of this doctrine, which is extensively detailed in 

other decisions. See, e.g., id. at 811–24. In short, the 

Supreme Court has clearly established that a sentencing 

court must consider all mitigating evidence; state law may 

not, for example, impose a threshold requirement that a 

defendant demonstrate a causal connection to the offense. 

See Smith v. Texas, 543 U.S. 37, 43–49 (2004) (per curiam); 

Tennard v. Dretke, 542 U.S. 274, 283–88 (2004); Penry v. 

Lynaugh, 492 U.S. 302, 319–28 (1989), abrogated on other 

grounds by Atkins v. Virginia, 536 U.S. 304 (2002); Eddings, 

455 U.S. at 110–17; Lockett v. Ohio, 438 U.S. 586, 597–609 
DJERF V. RYAN 25

(1978). Of course, the sentencing court is free to assign little 

weight to mitigating evidence, but such evidence may not be 

stripped of all weight as a matter of law. See Harris v. 

Alabama, 513 U.S. 504, 512 (1995). However, relief is only 

available when a causal nexus error was prejudicial—that is, 

when it was not harmless. McKinney, 813 F.3d at 821–22. 

We assume, without deciding, that the Arizona Supreme 

Court committed a causal nexus error here and move directly 

to the harmlessness inquiry.

The question is whether the Arizona Supreme Court’s 

refusal to consider Djerf’s family background evidence “had 

substantial and injurious effect or influence in determining” 

his sentence. Id. at 822 (quoting Brecht v. Abrahamson, 

507 U.S. 619, 623 (1993)). We review aggravating factors 

proven by the State and other mitigating evidence presented 

to the sentencing court, then we ask whether consideration 

of the improperly ignored evidence “would have had a 

substantial impact on a capital sentencer who was permitted 

to evaluate and give appropriate weight to it.” Id. at 823. 

We conclude here it would not—any error was harmless.

The State established three aggravating factors for each 

of the victims: Djerf committed each murder expecting 

receipt of something of pecuniary value; the murders were 

committed “in an especially heinous, cruel or depraved 

manner”; and the murders were committed in tandem. Ariz. 

Rev. Stat. § 13-703(F)(5), (6), (8) (1996). Because one of 

the victims was under eighteen, the State established another 

aggravating factor for his murder. Id. § 13-703(F)(9). Each 

of these factors is significant, but the undisputed facts 

substantiating the “heinous, cruel, or depraved” finding are 

especially powerful: with clear premeditation and 

preparation, Djerf imposed appalling psychological and 

physical suffering upon four strangers from a single family 
26 DJERF V. RYAN

before killing them in cold blood. The State’s aggravation 

case stands out as one of, if not the, strongest we have 

reviewed in recent years.

On the other hand, Djerf’s mitigation case was, as he 

admits on appeal, quite meager. Djerf was twenty-three 

years old at the time of the crimes, did not resist arrest, was 

mostly well-behaved for the duration of his post-arrest 

detention, and purported to accept responsibility and feel 

remorse for his conduct. The trial judge concluded that 

Djerf’s relative youth was not a mitigating factor because 

there was no indication that he lacked substantial judgment 

or an ability to appreciate the consequences of his actions. 

Djerf’s compliance with arresting officers was likewise not 

mitigating because, by that time, his friends were 

cooperating with the police and he had no other option. 

Subsequent statements by Djerf blaming Albert Luna for the 

crime and indicating that he could envision himself killing 

again undermined his purported acceptance of responsibility 

and remorse. So did the tactical justifications for his guilty 

plea. The trial judge found that Djerf had adjusted to 

confinement since his arrest, but several disciplinary 

infractions kept that factor from warranting leniency. The 

trial judge also concluded that Djerf did not suffer from any 

psychological disorders, noting that he expressly disclaimed 

any such problems. None of these considerations warranted 

leniency.

On direct appeal, Djerf challenged the court’s findings 

regarding age, remorse, and acceptance of responsibility. 

Djerf, 959 P.2d at 1288–90. The Arizona Supreme Court 

largely reiterated the trial judge’s reasoning and reached the 

same conclusions, finding that these considerations did not 

warrant leniency. Id.
DJERF V. RYAN 27

That brings us to the evidence of a difficult family 

background—evidence that we assume the Arizona courts 

improperly ignored. Djerf’s mother experienced some 

complications during pregnancy and childbirth. She recalled 

her son falling on his head as a toddler, though Djerf’s father 

does not recall any injuries. Neither parent was especially 

affectionate or doting with their son, and they divorced when 

he was approximately six years old; Djerf maintained 

relationships and alternately lived with each parent in the 

subsequent years. Both parents raised their voice on 

occasion, and the mother’s new husband once pushed Djerf 

up against a wall. However, there is no evidence that Djerf 

experienced physical or emotional abuse throughout his 

childhood. His mother recalled him rarely interacting with 

friends, while his father thought he had “normal” 

relationships until high school. At that point, his father 

thought Djerf became “more of a loner,” although he 

regularly spent time with friends. Djerf’s mother and sister 

insisted that Djerf’s father drank heavily, though Djerf did 

not recall ever seeing him intoxicated. His sister also 

remembered their father as “loving” and a “good provider.” 

She recalled a time from their childhood when Djerf 

handcuffed her, but she did not recall anything else notable 

about the incident. Djerf dropped out of high school, but 

later obtained his diploma.

We have previously found a causal nexus error to be 

harmless when there is “overwhelming” evidence of 

aggravating circumstances and proffered mitigation 

evidence is “limited” or “relatively minor.” Murray v. 

Schriro, 882 F.3d 778, 815–16 (9th Cir. 2018); Apelt v. 

Ryan, 878 F.3d 800, 840 (9th Cir. 2017); Greenway v. Ryan, 

866 F.3d 1094, 1100 (9th Cir. 2017) (per curiam). That is 

precisely the case here. This is not an instance where 

improperly ignored mitigation evidence addressed 
28 DJERF V. RYAN

“sustained, severe childhood abuse” “beyond the 

comprehension and understanding of most people.” 

McKinney, 813 F.3d at 823. In Poyson v. Ryan, there was 

evidence of repeated physical and emotional childhood 

abuse, sexual assault, coerced alcohol and drug use, 

developmental delays, the sudden death of a close parental 

figure, and severe head injuries resulting in headaches and 

loss of consciousness. 879 F.3d 875, 892–93 (9th Cir. 2018). 

Despite significant aggravating factors, we concluded that 

exclusion of this “particularly compelling” mitigation 

evidence was prejudicial because it may have persuaded the 

sentencing court to impose a non-capital sentence. Id. The 

mitigating evidence here is categorically less compelling, 

and the aggravating circumstances are more severe.

This is also not a situation where the evidence was 

objectively “important” and “interlinked” with other 

theories of mitigation, such that improperly excluding that 

evidence deprived all other mitigation evidence of 

persuasive force. See Spreitz v. Ryan, 916 F.3d 1262, 1279–

80 (9th Cir. 2019). We do not mean to suggest that Djerf 

experienced an idyllic childhood. Rather, there was no 

evidence of severe abuse, trauma, or other troubling 

experiences that might warrant leniency in light of 

overwhelming aggravating circumstances. We have no 

choice but to conclude that any causal nexus error committed 

by the Arizona Supreme Court was harmless.

CONCLUSION

The record fails to establish that Djerf’s pre-trial counsel 

were incompetent or provided constitutionally deficient 

representation. This conclusion defeats Djerf’s challenges 

to his waiver of counsel and guilty pleas, as both claims are 

premised on constitutionally inadequate representation. 

Because there is not a reasonable probability that state post-
DJERF V. RYAN 29

conviction proceedings would have turned out differently if 

Djerf had advanced a pre-trial ineffective assistance of 

counsel claim, we cannot excuse the procedural default of 

that claim. The state court reasonably concluded that 

sentencing counsel was not ineffective, and the district court 

did not abuse its discretion by denying Djerf’s request for an 

evidentiary hearing on that claim. Finally, we conclude any 

causal nexus error during Djerf’s sentencing was harmless.

AFFIRMED.6

 6 After oral argument, the Supreme Court granted certiorari in 

McKinney v. Arizona, No. 18-1109, 2019 WL 936074 (June 10, 2019), 

to address the appropriate procedures for resentencing after a capital 

sentence is vacated in light of a prejudicial Eddings error. Djerf moved 

to stay these proceedings pending resolution of that case. Dkt. 119. 

Because no resentencing is warranted here, the motion is DENIED.