F OR P UBLICATION



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

C A R Y W A L L A C E W I L L I A M S , Petitioner-Appellant

,

v

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T I M O T H Y F I L S O N , W arden; A D A M P A U L L A X A L T , Attorney General, Respondents-Appellees. N o. 13-99002

D.C. No. 2:98-cv-00056- PMP-VCF

A ppeal from the United States District Court for the District of Nevada Philip M. Pro, District J udg e, Presiding

C A R Y W A L L A C E W I L L I A M S , Petitioner-Appellant

,

v

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T I M O T H Y F I L S O N , W arden; A D A M P A U L L A X A L T , Attorney General, Respondents-Appellees. N o. 17-15768

D.C. No. 2:98-cv-00056- APG-VCF

A ppeal from the United States District Court for the District of Nevada A ndrew P. Gordon, District J udg e, PresidingW I L L I A M S V

. F I L S O N

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C A R Y W A L L A C E W I L L I A M S ,

P etitioner
,

v

.

T I M O T H Y F I L S O N , W arden; A D A M P A U L L A X A L T , Attorney General of the State of Nevada, Respondents. N o. 17-71510

OPI NI ON

Application to F ile Second or Successive Petition

Under 28 U.S.C. § 2254

Arg u ed and Submitted September 20, 2017 San F rancisco, California

F iled November 9, 2018

B efore: Marsha S. B erz o n, Paul J . W atford, and J ohn B . Owens, Circuit J udg es.

Opinion by

J u dg e W atfordW I L L I A M S V

. F I L S O N 3

SUMMARY *

Habeas Corpus / Death P enalty

The panel affirmed in part and reversed in part the district court’s denial of Cary W illiams’ first federal h abeas co r p u s petition c halleng ing his Nevada murder conviction and death sentence, and remanded for an evidentiary hearing on one o f W illiams’ p enalty -phase ineffective assistance of counsel claims; affirmed t h e district court’s denial of h is motion for relief under F ed. R. Civ. P

. 60(b); a nd denied W illiams’ application to file a second or success i v e federal h abeas petition.

The panel held that W illiams is en t itled to equitable tolling between the date of the o ne-y ear AEDPA deadline for filing a federal habeas petition and the date h e f iled his amended federal petition, a nd that all of the claims asserted in the a m e n ded petition are therefore timely

. B ecause W illiams is entitled to e quitable tolling ev e n if the c laims asserted in the orig inal and amended opinions do not share a

common core of o perative facts, the panel did not need to decide whether the district court’s application of the relationback standard from M

ayle v. Felix

, 545 U

. S

. 6 44 ( 2005), is
correct. The panel remanded for further proceeding s as to the claims the d istrict court d ismisse d b a s ed solely on the assumed untimeliness of the amended petition.

Apply ing AEDPA d eference, the p anel held that the d i s t rict c ourt did n ot abuse its d iscretion in deny ing an

* T h is su m m ary co n stitu

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

co u rt staf

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

th e read er.W I L L I A M S V

. F I L S O N

4

evidentiary

hearing on W illiams’ claim that his trial counsel failed to di scover and present evidence that he suffers from brain damag e. Reviewi n g d e novo , the panel held that the district court did abuse its discretion in deny ing a hearing on W illiams’ c laim that tri a l c ounsel unreasonably failed to investig ate and present substant i al mitig ating evidence
reg arding his abusive and traumatic childhood.

The panel held th a t t h e d istrict c ourt d id not err b y deny ing Wi l l i a m s’ request for an e v identiary h earing on his claims that trial counsel r end e r e d ineffective assistance during the g uilt p h a s e by f ailing to prepare an adequate d e f e n s e and d

uring the penalty phase by failing to retain a medical ex pert who c ould rebut the state’s evidence that the murder involved torture. The panel held that the district court properly held that it could n o t consider documentary evidence

as to the merits of those claims bec a u se W illiams did not submit that evidence to the state courts in the manner required under state law. The panel rejec t ed W illiams’ separate arg ument that he is entitled to have the documentary evidence considered under the rule subsequently established in M artinez v. Ryan
, 566 U.S. 1 (2012). The p anel concluded that the e vidence containe d i n the declarations at issue does
not place these claims in a sig nificantly different and strong er posture such that they must be deem e d “new” claims not previously

presented to state courts.

The panel held that Williams’ constitutional challeng es to Nevada’s “avo i d lawful arrest” ag g ravating circumstance, Nev. Rev. Stat. § 200.033(5) (1981), lacked merit, even reviewing the merits de novo

. The panel rejected W illiams’ contention that the ag g ravated c ircumstance is facially i nvalid under the Eig h th Amendment because it is too vag ue a nd b e cause it fails to a dequately narrow the class of de at h

-W I L L I A M S V

. F I L S O N 5

elig ibl e d efendants. The panel also rejected W illiams’
conten t i on that, as applied to h im, the ag g ravating circumstance violates the Ex Post F acto Cla u s e and the F o u r t eenth Amendment’s Due Process Clause because he lacked adequate notice at the time he committed the offense that § 200.033(5) could b e applied to the facts of h is crime.

The panel held that Nev. Rev. Stat. § 34.726, which imposes a g eneral o ne-y ear deadline for the f iling of p e titions for post-conviction relief, is an independent and adequate
state procedural bar to fed e r a l review. The panel therefore affirmed the district court’s dismissal of several of W illiams’ claims as procedurally defaulted under that statute. B ecause all of the c l a i ms asserted in W illiams’ a mended petition a re timely under AEDPA, the panel reversed the d istrict co u rt’s dismissal of five ineffective-assistance claims and remanded for the district court to d etermine in the first instance whether W illiams’ p rocedural default on those c l a i ms is e x cused under Martinez

.

The panel assumed without deciding tha t W i lliams’ motion under Rule 60(b) was n o t a d isg uised second o r successive petition. The panel wro t e that W illiams is not entitled to relief because even if Hurst v. Florida , 136 S. Ct. 616 (2016), e stablished the new rule W illiams urg es, that rule would not ap p l y r e troactively in cases on collateral review. The p anel wrote that Williams is also not entitled to relief because h is Rule 60(b) motion rests on the incorrect premise that the Nevada Supreme Court d id not a p p l y a bey ond-areasonable-do u b t standard when it reweig hed whether
ag g r avating factors outweig hed a mitig a ting circumstance.

The panel denied W illiams’ application to file a second o r successive petition based on Hurst

.W I L L I A M S V

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COUNSEL

Michael Pescetta (arg

ued), Randolph M. F iedler, and Albert Sieber, Assistant F ederal Public De f enders; Rene L

. Valladares, F ederal Public D efender; Office of the F e d eral Public D e fender, L as Veg as, Nevada; for PetitionerAppellant.

Victor-Hug o Schulz e I I (arg u ed )

, Senior Attorney General; Adam Paul L a x alt, Attorney General; Office of the Attorney General, L as Veg as, Nevada; for Respondents-Appellees.

OP INION

W A TF ORD, Circuit J udg e:

Cary Williams was sentenced to d e a th for the mu r d e r o f Katherine Carlson in 1983. This is the appeal from the district court’s denial of his f irst federal petition for a writ o f habeas corpus. I n the main appeal, we address the t h r e e issues on which the d istrict court g rant e d a certificate o f appealability

, as well as two uncertified issues that W illiams raised in his opening brief. W e affirm in part, reverse in part, and remand for an evidentiary hearing on one of W il l i am s’ penalty

- phase ineffective assistance of counsel claims.

W illiams has also filed a separate appeal from the district court’s d enial o f his motion for relief under Rule 60(b) of the F ederal Rules of Civil Procedure. W e affirm the d enial o f W illiams’ Rule 60(b) motion

.W I L L I A M S V

. F I L S O N 7

I . B ackg round

A. Conviction and Sentence

Many of the basic facts surroundin g t h e murder of Ms. Carlson are no long er subject to reasonable dispute. W illiams pleaded g uilty to her murder during the g uilt phase of the trial, and d

uring the penal ty phase he took the stand a nd described in detail how he committed the offense.

W illiams g rew up in the L os Ang eles a r e a but moved to Reno, Nevada, in F ebruary 1982, when he was 18 y

ears old, both to e sca p e the violence prevalent in his inner-city neig hborhood and to pursue his interest in becoming a professional box er. He moved in with his box ing c oach, w ho lived in a residential c om m u nity c alled Horiz on H ills. W illiams held a job as a maintenance worker in Horiz on Hills, a p osition he used to b urg lariz e several home s in the community

while the owners were away during the day

.

I n J u ne 1982, Ms. Carlson and her husband were a y oung couple living in Horiz on Hills a f e w houses down the street from where W illiams lived. Ms. Carlson worked as a nurse, her h usband as a firefig hte r

. Ms. Carlson was eig ht months
preg n ant at the time, ex p e c ting the couple’s first child.

On the n i gh t of J u ne 27, 1 982, W illiams decided to burg lariz e the Carlsons’ home. He thoug ht they had left town

on vacation, as the camper he had seen them p acking earlier in the day w as no long e r parked outside their home. B ut Ms. Carlson was home alone, asleep in her bedroom.

W h en W illiams broke into the Carlsons’ home that nig ht, he saw a woman’s purse on th e k i t ch e n counter, w hich ledW I L L I A M S V

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him to take a larg e butcher k nife f rom a drawer in the kitchen. He then walked throug h the house, room to room, looking for thing s to steal. W hen he reached the master be d ro o m , he turned on the lig hts and startled Ms. Carlson. She recog niz ed W i l liams and said, “Oh, my God, y ou’re the kid f rom d o w n the street.” A ccording to W illiams, Ms. Carlson then lung ed toward a bedside dresser, and a strug g le b etween them ensued

as he tried to prevent her from reaching into one of the drawers. W illiams admitted s t a b b ing Ms. Carlson to death during the c ourse of that strug gl e w i t h the b utcher knife he had taken from the kitchen. A n au topsy revealed that Ms. Carl s o n s u f

f ered 38 stab wounds in all, three of which were fatal. Her unborn child died due to lack of ox y g en after Ms. Carlson’s death.

After k illing Ms. Carlson, W illiams took money , jewelry

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

The nex t d ay , W illiams f led to L os An ge l e s by bus. W ithin a week, police in Reno had obtained a w a r rant for W illiams’ a

rrest, tipped off b y Williams ’ e ff o rts to pawn

some of the jewelry he stole from the Carlsons’ h ome. W illiams learned of the warrant, surrendered to a uthorities in L os Ang e les, a

nd w as eventually ex tradited t o Reno. W h en questioned by the police in Reno, W illiams confessed to the burg lary and to having murdered Ms. Carlso n during the course of the burg lary

.

I n A ug ust 1982, t he State of Nevada charg ed W illiams with one count of murder for t h e d eath of Ms. Carlson, o ne count of manslaug hter for the death of her unborn child, a nd

o ne count of burg lary

. The case received widespre a d publicity throug hout W ashoe County
, where Reno is located. The State soug ht the death penalty

.W I L L I A M S V

. F I L S O N 9

Trial c ommenced in December 1982. On the first d ay o f jury selection, W illiams p leaded g u ilty to the burg lary charg e

. A w eek later, after a jury had been empaneled and testimony had beg un, W illiams pleaded g uilty to the murder a nd manslaug hter charg es as well. U nder Nevada law at the time, W illiams’ g uilty plea to capital murder meant that the penalty
p h a s e o f his trial would be held before a three-judge sentencin g p a n e l rather than a jury

. Williams’ trial counsel believed she had a better chance of persuading judg es rather than jurors to spare W illiams’ life, g iven the intense p u blic hostility to W illiams in W ashoe County at the time.

The penalty -phase hearing took place over three day s in J anuary 1 983. The State portray e d W illiams as a depraved individual whose criminal conduct escalated from a series o f home b urg laries to “the most brutal, the m o s t s a distic a nd
most merciless murder ever in the history of W as h oe County

. ” The State a lso f ocused atte n tion on W illiams’ victims, introducing a p hotog raph o f a visibly preg nant Ms. Carlson tw o w e eks before she was killed. Mr. Carlson offered detailed and emotional testimony about discovering his wife’s body after the murder. The St a t e c o n cluded b y calling a forensic patholog ist who testified that there was “ no question this woman was tortured before she was murdered.”

W illiams’ mitig ation case centered on the t estimony o f friends a n d relatives who d escribed his r edeeming qualities, althoug h several of the family members w ho testified seemed
to be unaware of his g uilty plea or the details of the crime. The maternal fig ures in W illiams’ life described h im as a caring a n d dutiful child, and his y oung er sisters ex p lained how he had alway s cared for them. I n addition to this character evidence, W illiams’ trial c o u n sel pointed to hardships in Williams’ life, including the death of his mother,W I L L I A M S V

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his being bounced ar o u n d different homes and schools, a nd his g ro wi n g up in the dang erous environment of SouthCentral L os A ng e les. W illiams also testified, recounting his version of events and ex p r e s s i ng remorse for what h ad happened.

At the conclusion of the hearing

, the t h ree-judg e panel sentenced W illiams to d eath. The panel found four statutory ag g r avating circumstances: (1) the murder was c o mmitted d uring the commission of a b urg lary ; (2) the murder w a s committed during the course of a robbery with t h e u s e of a deadly w eapon; (3) the murder was committed to avoid o r prevent W illiams’ lawful arrest for t h e b u rg lary ; a nd (4) the murder involved torture and depra v i t y of mind. The panel found one statutory mitig a ting circumstance : t he fact that W illiams was only 19 at the time of the offense. The panel concluded that the ag g ravating circumstances outweig hed the mitig ating circumstances a nd that death was t h e appropriate punishment.

B

. Direct Appeal and State Post-Conviction Review

This case has a leng thy history in state court, spa n n i n g almost 25 y ears. I n addition to p u r s u i n g a direct appeal, W illiams filed a total of six petitions seeking post-conviction relief in state c ourt, the last of w hich the Nevada Supreme Court denied in 2 007. W e provi de only a brief overview o f those proceeding s here.

W illiams filed a direct appeal with the Nevada Supreme Court shortly a fter he was sentenced to d eath in 1983. W hile his direct a

ppeal was pending , he filed his first state petition f o r p o s t-conviction r elief, in which he alleg ed that his tria l counsel had rendered ineffective assistance in v iolation of theW I L L I A M S V

. F I L S O N 11

S ix th Amendment. The Nevada Supreme Court h e l d W illiams’ direct appeal in a bey ance while he litig ated h i s petition for p ost-conviction relief. Th e state trial court h eld

an evidentiary hearing o n W illiams’ ineffective assistance o f counsel claim in 1984, but ultimately denied relief. W illiams appealed that ruling to the Nevada Supreme Court. I n 1987, the Nevada Supreme Court a f firmed W illiams’ convictions and sentence on direct appeal, and affirmed the denial of his first petition f

or post-conviction relief. W illiams v. State
, 737 P.2d 508 (Nev. 1987).

A succession of five additional pe t i t ions for postc o nviction relief followed. The N evada Supreme Court affirmed the denial of W illiams’ second and third petitions in 1988, holding that the claims raised were either procedurally barred or barred by the law-of-the-case doctrine. I n 1990, the Nevada Supreme Court affirmed the de n i a l of W illiams’ fourth petition, ag a in on procedural bar g rounds. T h e state trial court held an evidentiary hearing o n W i lliams’ f ifth petition in 1995, but found none of the c l aims meritorious. The Nevada Supreme Court upheld that ruling in 1997, ag ain rely ing on law-of-the-case and successiveness bars.

I n 2003, W illiams filed his six th a n d final state petition for post-conviction relief, which the Nevada Supreme Court denied in 2 006 on the basis of state-law timeliness a nd successiveness bars. See N ev. Rev. Stat. §§ 34.726, 34.810(2). As to one o f W illiams’ claims, however, the court held that g ood cause ex cused Williams’ procedural defaults. Specifically

, th e c o urt concluded that two of the four
ag g r avating c i rcumstances found by the sentencing panel—that the murder was committed during t he

c o mmission of a burg lary and during the course of a robbery —were rendere d i nvalid u nder recently decidedW I L L I A M S V

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Nevada Supreme Court authority

, thus justify ing W illiams’ late presentation of the claim. B ut the cou r t held that W illiams could n o t s how prejudice because, even a fter striking the two invalid ag g rava t o rs, the remaining
ag g r avators o utweig hed the lone statutory mitig ating circumstance bey o nd a reasonable d oubt. I n 2007, the Nevada Supreme Court denied W illiams’ request for en banc reconsideration of that ruling , with two justices dissenting

.

C. F ederal Habeas Corpus Proceeding s

I n J a nuary 1998, W illiams initiated this action by filing a pro se petition for a writ of habea s c o r pus in federal court. The d istrict c o u rt accepted the petition for filing in April 1998, f ollowing a d elay in W illiams’ pay men t of the filing fee. Althoug h a lawy er helped W illiams pr ep a re h is pro se petition, every

one understood that this petition would need to be amended after W illiams had been appointed federal h abeas counsel. Unlike most federal habeas petitioner s , as a state prisoner facing a sentence of death, Williams was statutorily entitled to the appointment of counsel to represent him in his fe d e ral habeas p roceeding s. See 1 8 U .S.C. § 3599(a)(2) (formerly codified at 21 U.S.C. § 848(q)(4)(B ) ).

On A pril 17, 1998
, t h e district court appointed counsel from the F ederal Public D efender’s Office t o r e present W illiams. Shortly thereafter, the court issued the f i r s t i n a series o f scheduling orders g o verning discovery and the filing of an amended petition, p ursuant to what practitioners in the District of Nevada refer to as the “Georg e Memo.”

The Georg e Memo established standardiz e d procedures for handling f

ederal habeas c orpus proceeding s involving
state prisoners sentenced to death. F irst promulg a ted in 1992W I L L I A M S V

. F I L S O N 13

under the direction of then-C h i e f D istrict J udg e L loy d G e org e, the Georg e Memo divides capital habeas proceedin g s into five discrete stag es and provides sample orders that can be issued at each stag e. F o r ex ample

, u pon the filing of the ini t i a l petition, the Georg e Memo calls for the district court to appoint counsel and schedule an initial status conference. At the initial c o nference, the district court sets a schedule affording federal habeas counsel adequate time (ty pically six months) to review the record an d conduct all necessary discovery

. A t the same time, the court sets a deadline for the filing o f a

n amended f

ederal petition containing all c laims that the petitioner seeks to li t i g ate, both ex hausted a nd

unex h a usted. Under the procedur e s o u t lined in the Georg e Memo, the federal p e t i t ion will be held in abey ance, if
necessary , to allow the petitioner to complete the e x haustion
process in state court. Once the petitioner f u lly ex hausts all of the c l a i m s to be litig ated, the federal habeas proceeding s will then be reopened to allow resolution of the claims on the merits. The stated g oal of these standardiz ed procedures is to reduce the delay and inefficiency caused when federal h abeas petitioners bounce back and forth be t w e e n state a nd federal court as they

attempt to ex haust available state remedies.

The district court in this case followed th e s tandardiz ed procedur e s spelled out in the G eorg e Memo. After appointing counsel in mid-April 1998, the court set the initial
status conference for Aug ust 28, 1998. A t the conclusion o f that hearing

, the court issued a s cheduling order g ranting W illiams’ counsel six months to review t h e record a nd complete all discovery

. The court set a deadline of May 14, 1999, for the filing of Williams’ amended petition, althoug h the parties r ecog niz ed that the deadline mig ht n eed t o be

ex tended depending o n how long it took the parties to resolve
any discovery

- related issues.W I L L I A M S V

. F I L S O N

14

As it turned out, discovery -related issues did arise, a nd at W illiams’ re quest the district court twice ex tended the deadlin e f

o r filing the amended petition. The State did not oppose either ex tension. W illiams filed his a mended federal petition on September 1 7, 1999, within the de ad l ine ultimately set by the court. H e then filed a second amended petition in May 200 2
, w i t h in the deadline stipulated by the parties.

I n May 2003, the district court g r anted W illiams’ request to hold h i s federal habeas proceeding s in abey ance while he litig ated his six th and final petition f or state post-conviction relief, the last step n ecessary to complete t h e e x h austion
process. After the Nevada Supreme Court affirmed the denial of that petition in 2007, the distric t c o urt g ranted W illiams’ request to reopen his federal h a b e as proceeding s, a s contemplated under the Georg e Memo.

W illiams filed a third amended federal hab e as petition, the operative petition in this case, in October 2007. W illiams raised 38 claims for relief and requested an evidentiary hearing

. I n a series of orders entered between 2009 a nd 2012, the district court denied W illiams’ request for an evidentiary hearing and eventually denied relief on a ll claims. T h e court held that some of the c laims w ere barred b y the federal statute of limitations, 28 U.S.C. § 2244 ( d )

, and that W illiams was not entitled to equitable tolling of the federal filing deadline. The co u rt concluded that many of W illiams’ remaining claims were p rocedurally defaulted bec a u se the Nevada Supreme Court had determined that they were barre d b y the
statute of limitations set by state law, under Nevada Revised Statutes § 3 4.726. As to the h andful of claims that survived, the district court denied relief on the merits.W I L L I A M S V

. F I L S O N 15

The district court g ranted a certificate of appealability as to the issues we address below in sections I I .A, I I .C, and I I .D. As noted above, W i l l i a ms raised a number of uncertified issues in his opening brief, w h i ch under Ninth Circuit Rule 22.1(e), we treat as a re q uest to ex pand the certificate o f appealability

. W e a sked the State to respond to several of the

u n c e r t ified issues, and we now g rant a certificate o f appealabi l i t y as to the issues addressed in sections I I .B a nd I I .E below.

I I . Discussion

A. Equitable Tolling

The A ntiterrorism and Effective Death Penalty Act o f 1996 ( AEDPA) sets a one-y ear statute of limitations for filing

a federal petition for a writ of habeas c o r p u s

. 28 U .S.C. § 2244(d). I t is undisputed in this case tha t t he o n e-y e ar deadline f or W illiams ran until Aug ust 29, 1 9 9 8

. T hus, his initial p ro se f

ederal p etition, accepted for filing on April 15, 1998, was unquestionably timely

. His a mended petition, filed

on September 17, 1999, raised a sig nifica n t n umber of new claims not asserted in the orig inal p etition. That is not surprising

, g iven that the amended petition was prepared b y counsel with ex pertise in federal habeas proceeding s after the district court h ad afforded them t i m e to conduct discovery and review the voluminous record. The issue is whether the

new claims a sserted in t he a mended petition may be considered on the merits even thoug h the petition c ontaining them was filed after AEDPA’s A u gust 2 9, 1998, filing deadline.

T he claims a sserted in the September 1999 amen d e d petition may be considered if they “relate back” to c laimsW I L L I A M S V

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asserted in the origi n a l p e tition filed in April 1998. That is because F ederal Rule of Civil Procedure 15(c), which applies in federal habeas proceeding s, provides in relevant part a s follows:

(c) Relation Back of

Am endm e nts.

(1) When an Am endm ent Relat e s Back

. A n a mendment to a pleading relates back to the date of the orig inal pleading when:

* * *

(B) the a men d ment asserts a claim o r defense that a

r ose out of the conduct, transaction, or o ccurrence set out—or att e mpted to b e set out—in the orig inal pleading [ .]

F ed. R. Civ. P. 15(c)(1)(B ).

The district court held that some of the claims a sserted in W illiams’ amended petition do not r elate back to the c laims included in his orig inal pet i t ion, thus rendering them untimely

, even thoug h a ll o f the claims a rise out of the same conviction and sentence. I n so holding

, the court applied the standard for relation back a n n o unced in M ayle v. Felix

, 545 U.S. 6 4 4 ( 2 0 05), a case decided more than five y ears after W illiams filed h is amended p etition. I n that case, the Supreme Court he l d t h a t a claim asserted in an amended habeas petition relates back to t h e o r ig inal petition o nly if “the orig inal and amended petitions state claims that a re tied
to a common core of operative facts.” Id. at 664. I n so holding

, the Court rejected the broader reading of Rule 15(c)W I L L I A M S V

. F I L S O N 17

that our court had adopted. See Felix v

. Mayle

, 379 F .3d 612 (9th Cir. 2004), rev’d

, 545 U.S. 644 (2005). W e had viewed the rel e v ant “transaction” or “occurrence” in federal h abeas proceeding s as the petitioner’s trial and c onviction, such that claims asserted in an amended petition would relate back so long as they arose out of the sa m e t r ial and conviction challeng ed in the orig inal petition. See id. at 615.

W e need not d ecide whe t h e r the district court’s application of the relation-back standard from t h e S u preme Court’s decision in Mayle i s correct. F or w e conclude that,

even if the c laims asserted in the orig inal and amended petitions do n ot shar e a c o mmon core of operative facts, W illiams is e ntitled to eq uitable tolling for the period between Aug ust 29, 1998, an d S e p t e mber 17, 1999. All o f the claims asserted in the September 1 999 amended petition are therefore timely

under AEDPA.

To be entitled to e quitable tolling

, a h ab e as p etitioner
must demonstrate two thing s: “(1) that he has been pursuing his righ t s d ilig ently

, a nd (2) that some ex traordinary circumstance stood in his way and prevented timely filing

. ” Holland v

. Florida

, 5 6 0 U

. S

. 631, 649 (2010) (internal quotation marks omitted). T he State does not contest that W illiams dilig ently pursued his rig hts b etwe e n A ug ust 29, 1998, a nd September 17, 1999. T h roug hout that period, his counsel d ilig ently r eviewed the r e c ord, conducted discovery

, and prepar e d an a mended petition asserting all potential claims on Williams’ behalf, both ex hausted and unex hausted,

as the district court’s scheduling orders directed. See section I .C above. W illiam s’ counsel filed the amended petition within the deadline set by the court after obtaining the court’s approval o f two ex tension r equests, neither of which the State opposed. So the o nly issue h e r e i s whether W illiams hasW I L L I A M S V

. F I L S O N

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shown a n ex traordina r y circumstance that prevented timely filing

.

One way a petitioner can d emonstrate an ex traordinary circumstance is by showing that he relied on controll i n g circuit precedent to f

i l e what he thoug h t would be a timely federal petition, only to see the circuit precedent subsequently overruled, thereby rendering his petition untimely

. See Nedds

v. Calderon

, 678 F .3d 777, 7 8 1 (9th Cir. 2012); Harris v

. Carter
, 515 F

. 3 d 1051, 1056–57 (9th Cir. 2008). W e do not have quite that situation here. There was no controlling circuit precedent in the 1998–19 9 9 time frame that interpreted the meaning of the terms “transaction” a nd “occurrence” in R u l e 15(c) as a pplied to federal h abeas
p r o c eeding s. Our court did not address that issue unt i l w e decided Felix v. Mayle in 2004, y ears after W illiams filed his amended petition. F rom Aug ust 1998 to September 1999, the law in our circuit remained unsettle d o n h o w broadly (or narrowly ) Rule 15(c)’s relation-back stand a rd should be construed to apply

in federal habeas proceeding s.

I n Harris
, we left open w hether equitable tolling may be
g ranted when a petitioner r e lies on the unsettled state of the law (rather than on controlling circuit precedent) in deciding when to f

ile his petition. 5 15 F. 3 d a t 1057 n.8; see also W aldron-Ramsey v. Pacholke

, 556 F .3d 1008, 1013 ( 9th Cir. 2009) (same). B ut the Tenth Circuit has squarely addressed that question, in a decision whose reasoning we find persuasive here.

I n Y ork v

. Galetka

, 314 F. 3 d 522 (10th Cir. 2003), the
court confronted a set of c ircumstances similar to those
p r e s en t in this case. The petitioner in Y ork relied on the unsettled state of the law reg arding whether AEDPA’s one-W I L L I A M S V

. F I L S O N 19

y ear filing d eadline w o uld be tolled during the period in which an earlier federal habeas petition remained p ending

. York filed his third federal habeas petition on the assumption that such tolling would be available. H i s t hird petition was timely w ith that period o f t o lling taken into account but untimely without it. W h en York filed his third petition in March 2000, the Tenth Circuit had not y e t resolved the issue. I t did so roug hly a y e ar later, when it held in Pe t r i c k v. Martin
, 236 F .3d 624 (10th Cir. 2001), that AEDPA’s tolling provision authoriz ed statutory tolling for both state a nd federal petitions during the period in which they remained pending

. Shortly t h ereafter, however, the Supreme Court held in D unc a n v. W

alker

, 533 U.S. 1 67 (2001), that the tolling provision applied only to p ending st a t e p etitions, thereby rendering

York’s third petition untimely

.

The Tenth Circuit concluded that in these circumstances York was e ntitled to e q uitable tolling

. The court acknowledg ed that York could not have relied on controlling circuit precedent in deciding when to file his third p e t ition, since the favorable ruling in Petrick had not y e t been issued. Y o rk

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

was n onetheless appropriate b e c a u se “the law in this circuit

w as unsettled on the issue”; the statute in question w a s ambig uous as to the availability of tolling for pending federal petitions; a n d the Supreme Court did not resolve that ambig uity adversely to York until after he had filed his third petition. Id. ; see also Griffin v. Rogers
, 399 F .3d 6 2 6, 637 (6th Cir. 2005) (“unstable an d unsettled” state of the law supported equitable tolling ).

The f acts in Williams’ case a

re similar to those in Y

o r k

, althoug h, as we shall ex plain, the circumstances here favoring equitable tolling g o bey ond those present in Y ork

. W illiamsW I L L I A M S V

. F I L S O N

20

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 h is o r ig inal A pril 1998 petition. Rule 15(c) was u n doubt e d l y ambig uous on this point: A s applied to federal habeas proceeding s, the terms “transaction”

a nd “occurrence” could readily be understood to mean the petitioner’s trial and conviction, as evidenced by the fact that
two c ircuits (ours a

n d the Seventh) later interpreted the terms in that way , a s did the two dissenting J ustices in Mayle

. See Mayle

, 545 U .S. at 670–74 (Soute r , J

. , d issenting

, joined b y Stevens, J

. ) ; F

e l i x , 379 F .3d at 615; Ellzey v. United States
, 324 F .3d 521, 525– 2 6 ( 7th Cir. 2003). The Supreme Court did not r esolve the ambig uity in how Rule 15(c) should be interpreted u n til after W illiams had filed his amended petitio n , a t which point it was too late for him to c ure any timeliness issues that arose as a result.

To be entitled to equitable tolling

, W illiams’ reliance on the unsettled state of the law must hav e been reasonable during the time period in question. Cf. Lawrence v. Florida

, 549 U.S. 327, 336 (2007) (petitioner was not e n t i t l e d to equitable tolling where every circui t to address an issue, including p etitioner’s home c i r c uit, had resolved the issue adversely to him). W e think W illiams ’ reliance was eminently reasonable, for at least two reasons.

F irst, in survey

ing the law a s it stood at the end of Aug ust 1998, when AEDPA’s one-y ear filing dea d l i n e passed, W illiams’ counsel had no reas o n t o s uspect that Rule 15(c) would pose an obstacle to consideration of newly added claims in an amended p e tition. Ninth Circuit law interpreting R u l e 1 5(c) in the c ontex t of ordinary civil actions h a d construed the relation-ba c k standard broadly

, permitting

r e lation back of n e w ly added claims arising out of the s a m eW I L L I A M S V

. F I L S O N 21

transaction or occurrence even if “ th e new claims are based

on a different leg al theory of which there was no warning in the orig inal pleading .” Felix

, 379 F .3d at 615. B ecause Rule 15(c)’s reference to “transaction” or “occurrence” c o uld plausibly be read in the federal habeas contex t to refer to the petitioner’s conviction and tria l

, habeas practitioners reasonably assumed that newly added claims would relate back to the orig inal petition so long as the claims arose out o f the same t r i a l and conviction challeng ed in the orig inal petition. No circuit court in the country had interpreted Rule 15(c) t o the contrary as of Aug ust 1998; the first decision imposing a more restrictive rea d ing of Rule 15(c) d id not

come until F e bruary 1999. See United States v

. C r a y craft

, 167 F .3d 4 5 1
, 456–57 (8th Cir. 1999). The dearth o f precedent may ex plain why the leading habeas treatise at the time offered no discussion at all about Rule 1 5(c)’s relationback standard, either in its sec t ion discussing AEDPA’s recently added statute of limitations or in the section discussing amendment of the petition. S ee 1 J ames S. L iebman & R a n d y Hertz
, F ederal Habeas Corpus Practice and Procedure §§ 5.1b, 17.2 (3d ed. 1998).

Second, W illiams’ lawy ers w ere not alone in assuming that newly added claims in an a mended petition w ould relate back to the o r ig inal petition; the d istrict court shared that assumption. I ndeed, the series of scheduling o rders entered by the court is otherwise hard t o e x plain. W hen the court appointed c ounsel for W illiams in April 1998, only four-anda-half months r emained before A E D P A ’ s o n e

- y e a r l i m i t ations period ex pired. B u t the court d id n ot schedule the first status conference until Aug ust 28, 1 998, literally the day before the
one-y ear d eadline passed, a t which point W illiams’ lawy ers

we r e s till dig esting the 4 7 b ox es o f materials they h ad
g athered and, in a ddition, attempting to formulate a discoveryW I L L I A M S V

. F I L S O N

22

plan to o btain the remaining materials they needed to review. The co u r t g ranted c ounsel six additional months, a s contemplated under the Georg e Memo, to complete their

r eview of the record and to c o n duct n e e ded discovery

. T h e

cou rt set an initial May 1999 deadline—well b e y ond the

ex p iration of A EDPA’s o ne

- y e ar statute of limitations—for the filing of a comprehensive amended petition as serting all potential claims, both ex hausted a n d unex h a

usted. S etting that sche d u l e m ade little sense if counsel would then be
pr e c l u d ed from adding new claims unless the c laims ha p p ened to share a common c ore of operative facts with claims W illiams had asserted in his orig inal pro se petition.

The State al s o as s umed that any newly added c laims would relate back. Only that understanding ex plains why the State w aited eight years a f ter receiving the amended petition before moving to dismiss any of the claims on the g round that they did not relate back to the orig inal petition un d e r Rule 15(c).

I n sum, it was not until the Supreme Court decided Mayle in 2005 that any one involved in t h i s c a s e sug g ested that the newly added c laims mig ht not relate back and could therefore be deemed u nti m e l y

. U ntil then, the Georg e Memo was followed, and it assumed that allowing amendment to a dd

new claims was a valid way of efficiently structuring h abeas proceeding s in capital cases.

W e hold that W illiams is entitled to equitable tolling for the p eriod from Aug ust 29, 1998, to September 17, 1999, a nd according ly r everse the district c ourt’s contrary r u l i ng

. Ultimately

, the district c o u r t dismissed just a h andful o f W illiams’ claims based solely on the assumed untimeliness of his September 1999 amended petition: Claims 1(C), 1(D),W I L L I A M S V

. F I L S O N 23

1(E), 1(H), 1(I ), 1( J ), 9, and 1 4

. W e remand for f urther proceeding s as to each of those claim s. 1

B

. Claims 1(A) and 1(F )

W e turn now to two related claims alleg ing ineffective assistance b y W illiams’ trial counsel, Shelly O’Nei l l

. I n Claim 1 (A), W illiams all e g e s that O’Neill unreasonably failed to discover and p resent evidence that W illiams suffers from brain damag e. I n Claim 1(F ), W illiams alleg es that O’Neill unreasonably failed to investig ate an d present substantial mitig ating evidence r e g arding his abusive a nd traumatic childhood. Williams arg ues that this evidence mig ht have dissuaded the three-judg e panel from sentencing him to death, and that the district court erred in deny ing him relief o n these claims w ithout g ranting hi s request for an evidentiary

hearing

.

A l thoug h these claims are substantively related, they come before us with d ifferent procedural backg rounds. Our analy sis is informed b y the standard o f r e view applicable to each. W e c onclude that the dist r i c t c o u rt did not abuse its discretion in deny ing an e videntiary hearing a s to Claim 1(A). Althoug h we conclude that O’Neill was deficient in failing to

uncover evidence o f W illiams’ brain damag e, we d efer to the Nevada Supreme Court’s conclusion that this evidence on its

own does not create a reasonable probability that the outcome of W illiams’ sentencing hearin g would have been different.

1 A s ex p lain ed in sectio n II.E b elo w , Claim s 1 (D), 1 (E), 1 (H), 1 (I),

an d 1 (J ) w ere p ro ced u rally d ef au l ted u n d er state la w

. T h u s, th e d istrict

co u rt’ s f irst o rd er o f b u sin ess as to th ese claim s, w h ich alleg e in ef

f ectiv e assistan ce o f trial c o u n s e l

, w ill b e t o d eterm in e w h eth er th e d ef

au lt is

ex cu sed u n d er th e ru le estab lish ed in Ma r tin ez v. Rya n , 5 6 6 U.S. 1 (2 0 1 2 ).W I L L I A M S V

. F I L S O N

24

As to Claim 1(F ), however, we ag ree with W illiams that the district c ourt abused its d isc re t i o n in deny ing an evidentiary hearing

. W e rem a n d fo r the district court to hold an evidentiary hearing so that it may properly assess whether the evidence of W illiams’ childhood abuse and trauma—in combination w ith the brain damag e evidence that was not on its own sufficient—g ives rise to a r easonable p r obability that the outcome of W illiams’ sentencing hearing would have been different.

1. Claim 1(A)

W i l l i a ms presented the substance o f Claim 1(A) in his six th and fi n al state petition for post-conviction relief in 2003. T he claim was substantiated by ex pert reports prepared in 1999 by

Dr. David Schmidt, a clinical neuropsy cholog ist, and Dr. Dennis DePry
, a psy c hiatrist. D r. Schmidt diag n osed W illiams with n europsy c holog ical impairm ent, traumatic brain injury

, and p oly substance abuse. He reported that W i l liams’ brain d a mag e likely hampered his “ability to anticipate the long term consequences of h i s a ctions” a nd made him “more likely to act-out in a criminal manner.” Dr. DePry concurred in these diag noses, and added that W illiams suffered from mix ed personality disorder with dependent a nd schiz oid traits.

The Nevada Supreme Court h eld that W illiams h ad procedurally defaulted this claim, citing state-law timeliness and successiv en es s b ars. See N ev. Rev. Stat. §§ 34.726, 34.810(2). Alth o u gh it rejected the claim o n procedural
g round s , the court’s o rder deny ing W illiams’ request for en banc reconsideration arg uably reached the merits, as it addressed the ineffective assistance issue in consid e r i n g whether W illia m s failed to show cause and prejudiceW I L L I A M S V

. F I L S O N 25

sufficient to overcome the procedural bars. W ith respect to prejudice a t the g uil t p h a se, the court reasoned that the doctors’ reports “did not sug g est that W illiams was incompetent, insane, or lacked the capacity to understand his actions.” With respect to the penalty p hase, the court was “not pe rsuaded that even assuming trial c ounsel h ad discovered and p res e n t e d t h e brain damag e evidence

. . . in mitig ation that it had a reasonable probability of alteringthe outcome of the penalty h e a ring .” 2

The State arg ue s t h a t the N evada Supreme Court’s deci s i on c onstitutes a

n adjudication on the merits o f Claim 1(A) a n d thus warrants A EDPA d eference under 28 U .S.C. § 2254(d). The State contends that the court “accepted as true W illiams’ proffered reports” and eng a g ed in the analy sis required under Strickland v

. W ashington

, 466 U.S. 668 (1984). The d istrict court ag reed, concluding that, “[ e] v en thoug h the court w as considering the c l a i m as part o f its procedural default analy sis, the ruling constit u t es an adjudication on the merits for the purposes of § 2254(d).”

Althoug h we have doubts about wh e t h er the Nevada Supreme Court reached the merits of Williams’ claim, we recog niz e that the court did apply the functional equivalent o f Strickland ’s prej u d i c e standard in conducting its cause-andprejudice analy sis. See Early v. Packer

, 537 U.S. 3, 8 (2002) (per curiam) (ex

plaining that AEDPA deference may be due

even w hen the state court did not cite the federal s t andard).

2 T w o j u stices d issen ted f

ro m th e d en ial o f W illiam s’ en b an c req u est. T h ey w o u ld h av e rem an d ed to t h e state trial co u

rt f o r a “ f u ll ev i den tiary h earin g co n cern i n g t

h e ex ten t o f an y actu al p h y sical b rain d am ag e an d its im p act o n W illiam s’s e l ig ib ility f or th e d eath p en alty ,” p articu larly b ecau se tw o o f

th e f o u r ag g rav atin g f

acto rs h ad b een strick en

.W I L L I A M S V

. F I L S O N

26

B ecause W illiams does not dispute that the Nevada Supreme Court’s decision amounted to a merits determination, we join the parties in a s s u m i ng that the Nevada Supreme Court reached the merits of the Strickland issue and that the limitations of § 2254(d) therefore apply

. Accepting t h ose limitations, we cannot conclude that the district court abused its discretion in deny ing a n evidentiary hearing on Claim 1(A).

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

was before the state court t h a t adjudicated the claim on the merits.” Cullen v. Pinholster

, 5 63 U.S. 170, 181 (2011). A nd

we must defer to the state c ourt’s rejection of Claim 1(A) unless it “was co n trary to, o r involved an unreasonable application of, clearly established F e d eral law,” or “was ba sed on an unreasonable determination of the facts in lig ht of the evidence presented” in state c o u r t. 28 U .S.C. § 2254(d). Strickland supplies the clearly established federal law for ineffective a ssistance of counsel claims. Under Strickland

, W illiams must demonstrate that h i s counsel’s performance was constitutionally deficient and that t h e deficient performance prejudiced h im. 466 U.S. at 687. T o establish deficient performance, Williams must show that his counsel’s performance “fell below a n objective standard o f reasonableness.” Id. a t 6 88. To e stablish prejudice, W illiams
must “ show that there is a reasonable p robability that, but for

c o u nsel’s unprofessional errors, the result of the p roceedi n g would have been different.” Id. at 694.

W e may g rant W illiams h abeas relief only if we find that the N evada Supreme C ourt’s application of Strickland was “objectively u nreasona

ble.” W oods v. Sinclair

, 764 F .3d 1109, 1132 (9th Cir. 2014). I n making this determination, we bear in mind that the “s t a n d a r ds created by Strickland a ndW I L L I A M S V

. F I L S O N 27

§ 2254(d) are both hig hly deferential, a nd when the two a

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

, 562 U.S. 86, 105 ( 2011) (internal quotation marks a nd citations omitted). W e note, however, that while the Nevada Supreme Court effectively applied S trickland ’s prejud ice standard, it made n o determination as to whether O’N e i ll’s failure to have W illiams ex amined by a competent neuropsy cholog ist amounts to deficient per f o r mance. W e therefore r eview this elemen t of W illiams’ c laim de n ovo

. See Porter v. McCollum

, 558 U.S. 3 0, 39 (2009) (per curiam).

A s t o the g uilt phase o f the trial, the Nevada Supre m e Court’s denial of relief was not objectively unreasonable. Even assuming that O’Neill’s performance was deficient, the Nevada Supreme Cour t ’s determination that W illiams was not prejudiced as a result is e ntit led to deference. The evidence demonstrating W illiams’ g uilt was substantial, a nd it was not unreasonable for the state court to conclude that the evidence contained in the doctors’ r epo r t s w ould have been insufficient to support a c redible insanity defense or to prove that W i lliams’ g uilty plea was invalid. See Bemore v

. Chappell

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

The question i s m u c h closer with respect to the penalty phase. “ At the penalty phase, counsel’s duty to follow u p on indi c i a of mental impairment is quite different from—and much broader and less c onti ng e nt than—the more confined
g uilt-phase r esponsibility .” Id

. at 1171. T r i al counsel must therefore inquire into any mental impairments her client may have and “consult with appropriate medical ex pert s.” Id. (internal quotation marks omitted).

O’ N e i l l’s failure to make adequate inquiry in this case cannot be e x cused, g iven our insistence “that all relevantW I L L I A M S V

. F I L S O N

28

mitig ating inform a tion be unearthed for consideration a t the capital sentencing phase” and that c o unsel “pursue relevant leads.” Id

. (internal quotatio n m a r k s omitted). Competent counsel would have obtained records containing c onspicuous red flag s indicating that evaluation by a competent medical o r mental health professional was warranted. Most prom i n e ntly

, W illiams’ juvenile court records indicate that in 1 9 7 7 h is probatio n o fficer “ r equested psy cholog ical testing in connection with assessment of possible org anicity o r brain damag e.” T hat testing revealed that there was “ d ef initely

some ty pe of perceptual-mot o r inability or restrictiveness.” I n addition, W illiams’ j u

v e n i l e a n d medical records document his consistent substance abuse during critical y e ars f or brain development. They reveal that he beg an sniffing g lue a s early a s a g e 14, became increasingl y dependent on a lcohol during adolescence, and ex perimented with PCP. A f ulsome investi g ation would also h ave revealed that W illiams suffered multiple head injuries, including one from a car collision that left him unconscious for a period of 1 5 minutes and for which he never r eceived medical treatment. Reviewing this aspect of the claim de novo , we conclude th a t O ’ N e i ll’s f a ilure to have Williams evaluated by a competent medical o r mental health professional c onstitute d d eficient performance. See Caro v. W

oodford

, 280 F .3d 1247, 1254–56 (9th Cir. 2002); Hendricks v. Calderon , 70 F .3d 1032, 1043 (9th Cir. 1995).

The N evada Supreme Court determined that W illiams

was not prejudiced by O’Neill’s deficient performance. Our review o f that determination is lim ited by the restrictions o f § 2254(d), and we conclude that the state co urt did not unreasonably apply S t r ickland ’s prejudice standard. The doctors’ reports sug g est that, relative to t he brain-damag ed population, Williams’ impairment was not p a rticularly

s e v e re: His score on a battery of tests placed his over a l lW I L L I A M S V

. F I L S O N 29

neuropsy cholog ical functionin g i n the “mildly impaired
rang e ” as compared to the g eneral p o p u lation. W eig h ed
ag ainst W illiams’ crime, it was not unreasonabl e for the Nevada Supreme Court to conclude that this evidence did not,

o n its own, g ive rise to a reasonable probability tha t t h e outcome of the sentencing hearing would have been different.

2. Claim 1(F )

W e turn now to Claim 1(F ), Williams’ ineffec t i v e assistance of c ounsel claim predicated on O’Neill’s failure to i nvestig ate and present compelling mitig ating eviden c e reg ar d i n g W illiams’ childhood. W illiams p resented the substance of this claim in his amended 1993 state petition for post-conviction r elief. I n support of the claim, he submitted 15 declarations from relatives and f r i e nds attesting to a childhood rife with neg lect and a b u s e

. 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 a

nd denied W illiams’ ineffect i v e a s s i s t a n c e c l a i m s in 1987. See W

illiams , 737 P.2d at 510. F or g ood measure, the court also e x p lained that O’Neill had in fact “investig ated Mr. W illiams’ difficult childhood a nd h is y outh,” and that the

c l a i m “w ould be dismissed on those g r ounds as well.” I n 1997, the Nevada Supreme Court affirmed only o n the first
g round, concluding “that the lower court properly dismissed W i l l iams’ petition based u p on the doctrine o f the law of the case.”

The Nevada Supreme Court’s reliance on the law-of-thecase doctrin e a mounted to a finding that W illiams h ad procedurally

defaulted Claim 1(F ) by violating the state-law bar on successive petitions. S ee Nev. Rev. Stat. § 34.810(2).W I L L I A M S V

. F I L S O N

30

However
, t h e State has c onceded that at the time it was invoked, Nevada’s suc cessiveness bar w as not consistently applied and is therefore not an adequate state gr ound to preclude federal review. According ly

, 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 deny ing relief on the claim without g ranting W illiams’ request for an evidentiary hearing

. W i lliams 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) mee t o n e o f the f actors identified by the Supreme Cour t i n Townsend v. Sain
, 372 U.S. 293 (1963), overruled o n other grounds by Kenney v. Tamayo-Reyes
, 504 U .S. 1 (1992); and (3) “make colorable alleg ations that, if proved at an evidentiary h e a ring, w o u ld entitle him to habeas r elief.” Insyxiengmay v. Morgan
, 403 F .3d 657, 670 (9th Cir. 2005).

The first condition is easily met. W illiams presented the evidence u nderlying Claim 1(F ) in his 1993 state petition a nd
at the state evidentiary hearing i n 1 9 9 5

. B ecause he did not fail to develop the factual b as i s o f 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, W illiams must show at least one of the following :

(1) the merits of the f

actual dispute were n o t resolved in the state hearing ; (2) the s t ate factual determination is not fairly suppor t ed b y the record as a whole; (3) the fact-findin g procedure e mploy ed by the state c ourt was notW I L L I A M S V

. F I L S O N 31

adequate to a f

f o rd a full and fair hearing ; (4) there is a substan t i a l alleg ation of newly discovered evidence; (5) th e material facts

were not adeq u ately developed at the statecourt h earing ; or (6) f

or any reason it appears that the state trier o f f

act did not afford the habeas applicant a full and fair fact hearing

.

Townsend

, 3 72 U.S. a t 313. At least one factor applies here: The merits of the f

actual dispute were not resolved in state court ( Townsend factor 1) because the c laim was rejected b y the Nev a d a S u p reme Court o n procedural g rounds. And to the ex tent the state trial court co n s idered the merits of the claim, that court’s determination was not “fairly supported b y the rec ord as a whole” ( Townsend factor 2). The state trial

co u rt held that the claim was “ d irectly contradicted” by the fact that O’Neill “spoke to numerous members of M r. W illiams’ family and friends” and had “investig ated Mr. W illiams’ difficult childhood and his y outh.” Bu t t h e court made no reference to the content of the 15 d e clarations, which, as discussed below, d iffers g reatly from w h at O’Neill elicited in her investig ation.

Having satisfied the first t wo co nditions, W illiams is entitled to an evidentiary hearing a s long a s h e advances “col orable alleg ations that, if proved at an evidentiary hearing, w ould entitle h im to h abeas r elief.” Insyxiengmay
, 403 F

. 3 d at 6 70; see also Q uezad a v. Scribner

, 6 11 F .3d 1165, 1 166–67 (9th Cir. 2010) ( order). The Supr e m e Court has held that a failure to investig ate a nd present mitig ating evidence of childhood a b use and trauma may constitute ineffective assistance of counsel. Sears v

. U p t on , 561 U.S. 945, 948, 956 (2010) (per curiam); W iggins v

. Smith

, 539 U .S. 510, 524 (2003). To determine whether that is theW I L L I A M S V

. F I L S O N

32

case here, we turn ag ain to Strickland

. Reviewing the matter de n o vo , w e c onclude that W illiams has alleg ed a c olorab l e

c l aim that O’Neill rendered deficient performance and t h at W illiams suffered prejudice a s a result.

a. Deficient Performance

W e beg in with Strickland ’s deficient performance p rong

. I t is instructive to consult “[ r ] esta t ements of professional standards” t hat “describe the p rofessional norms prevailing when the repres e n t a t i o n took place.” Bobby v. Van Hook

, 558 U.S. 4, 7 (2009) (per curia m )

. The AB A Standards for Criminal J ustice a

pplicable at the time of W illiams’ trial

ex p lained t h at defense counsel has “a substantial a nd important role to per fo r m in raising mitig ating factors,” a nd that “[ i] nformation c oncerning the defenda n t’s backg round, education, employ

ment record, mental and emotional stability

, family relationships, a n d the like, will be relevant.” AB A Standards for Criminal J u stice 4-4

. 1, p. 4-55 (2d ed. 1980). We h ave ex p lained that “the invest i ga t i o n should include inquiries into social backg round and e vidence o f family abuse.” Summerlin v. Schriro

, 427 F .3d 623, 6 30 (9th Cir. 2005) (en banc). Counsel’s oblig ation “to c ast a wide net for all relevant mitig ating evidence” is at its heig ht during the penalty phase of a capital case. Frierson v. W oodford

, 463 F .3d 982, 989 (9th Cir. 2006). Assessed ag ainst these standards, W illiams has alleg e d a colorable claim t hat O’Neill’s f

ailure to uncover evidence of W illiams’ childhood abuse and trauma constitutes deficient performance.

“[ T] he pres e n c e of certain elements in a capital defendant’s backg round, such as a famil y history o f alcoholism, abuse, a

nd emotional problems, trig g ers a d uty to conduct further inqu i r y b e f o r e c h o o s i n g to ceaseW I L L I A M S V

. F I L S O N 33

investig ating .” Earp v. Ornoski

, 431 F .3 d 1 1 5 8
, 1175–76 (9th Cir. 2005) (citing W iggins
, 5 3 9 U

. S

. at 525). O’Neill failed to take even the first steps of an adequate investig ation, which in this case would have revealed warning sig ns reg arding each of those e l em ents in W illiams’ backg round. She f ailed to obtain W illiams’ juvenile records, which would have revealed that Williams’ behavioral issues arose after his mother died when he was nine. She failed t o o b t a i n his medical r e c o rds, which would have revealed that W illiams dealt with the “emot i o n a l turmoil” in his life by resorting to drug use that neg atively a ffected his “mental stability .” A nd she failed to obtain W illiams’ school records, w h i c h would have revealed that his performance deteriorat e d t hroug hout adolescence.

As discussed at leng th below, the declarations submitted in support of Claim 1(F ) c onfirm that each of th e r e d fl ag s identified in Earp was present in W illiams’ backg round, a nd

were in fact such prominent f eatures of h i s childhood that

an y thing bey ond a cursory investig ation would have uncovered them. And indeed, the dec l a rations indicate that the little investig ation O’Neill did do was, in fact, cursory at best.

O’Neill’s investig ation consisted of one three-day trip to L os Ang eles, during which she met with a number o f W illiams’ relatives and, according to one account, “talked to each person for ten to fifteen minutes.” W illiams’ sister April reported that “I had barely beg un to tell her [ about] my brother, when it was all over.” W illiams’ sister Cy nthia reported that O’Neill a sked her only “a little b it about how we g rew up.” H a d O ’ Neill eng ag e d more deeply

, A pril a nd Cy nthia c ould have described in detail the abuse that they a nd W illiams endured throug hout their childhoods. I t is noW I L L I A M S V

. F I L S O N

34

ex c u se that they a n d other family members were not immediately more forthcoming in their brief interviews with O’Neill. “ Trial counsel h as an affirmative duty not to simply accept the facts as they

mig ht be presented at first blush, but rather to ‘unearth[ ] for consideration’ a t the sentencing phase ‘all relevant mitig ation information.’” Doe v. Ayers
, 7 82 F .3d 425, 437 ( 9th Cir. 2015) (quoting W allace v. S

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

O’Neill failed not o nly to e licit relevant information, but also to prepare the family members and friends who testified
at the sentencing hear i n g. W illiams’ sister April ex p lained that O ’Neill did not e ven mention when they met in L os Ang eles that s h e would be asked to testify at the sentencing hearing

, much less g o over the kinds o f questions she would be asked. This lack of p r e p aration is apparent in the
t r anscript of W illiams’ sentencing hearing

, which is repl e t e with indications that O’Neill failed t o i nform her most important w itnesses o f the questions she planned to ask them. W illiams’ sister Cy

nthia, for instance, insiste d on the stand that W illiams had not committed the murder, despite h i s g uilty plea. When asked if Williams shou l d b e a l lowed to live even if he had committed the m u rder, Cy nthia replied: “No. I f he did it, no, he shouldn’t.” Williams’ aunt, I nez Kelly

, another critical witness, also insisted on W illiams’ innocence, and revealed that she had never been informed o f the salient details of the crime. W e have made clear that “the fa i l ure to prepare a witness a dequately can render a penalty phase presen t a t i o n deficient.” Hamilton v. Ayers
, 5 83 F .3d 1100, 1121 (9th Cir. 2009).

Having lapsed in her investig a tory and preparatory duties, O’Neill was left to base h er mitig ation case primari l y o n W illiams’ redeeming qualities. The district court concludedW I L L I A M S V

. F I L S O N 35

that “O’Neill arrive d at this strateg y after conducting a

r e a sonable investig ation into W illiams’s family and soci al backg round.” W e c annot ag ree. W hile it is “strong ly presumed” that counsel “made all sig nificant decisions in the

ex e r cise of reasonable professional judg ment,” Strick l a n d

, 466 U.S. at 690, we cannot credi t O ’ Neill’s decision to present the mitig a tion case she did as a strateg ic choice because “counsel cannot be said to have ma d e a tactical decision without first procuring the information necessary to make such a decision.” Reynoso v. Giurbino

, 4 62 F

. 3 d 1099, 1112 ( 9th Cir. 2006); s ee also Correll v. Ryan
, 539 F .3d 938, 949 (9th Cir. 2008) (“An uninformed strateg y is not a reasoned strateg

y . I t is, in fact, no strateg y at all.”).

Moreover, no competent counsel wou l d have made an informed choice to present the “g oo d gu y ” mitig ation case that O’Neill presented, when far more compelling mitig ating evidence (discussed in the nex t section) was availab l e

. The judg es on the sentencing panel heard t h a t W i lliams “loved church” and w as “alway s helping people.” They heard that he made sure his y oung er sisters had lunch money for school, and that he helped out in his g reat-uncle’s shop. This defense

was obviously insufficient to mitiga t e what the p rosecutor called “the most brutal, the most sadistic and most merciless murder ever in the h istory of W ashoe County .” S ee Bemore
, 788 F .3d at 1172 (“[ A] g ood character d efense was unlikely
to be persuasive to a j u r y that h a d just decided that [ defendant] had carried out a g r i z z ly murder, including torturing the victim

. . . .”). O’ Ne i l l h e rself even told the judg es that “[ n] early e v ery o ne I talk to wants Cary W illiams
to die,” and that “if [ she] thoug ht that killing Cary W illiams would bring Katherine Carl s o n a n d her baby back,” she felt “that would be a fair ex chang e.” I n h i s closing arg ument at sentencing

, the prosecutor summe d u p O ’ N e i l l ’ s p r e sentation:W I L L I A M S V

. F I L S O N

36

“So where, then, are the mitig ating factors? They simply do
not ex ist in this case.”

b. Prejudice

W e turn now to S t r i c k land ’ s p rejudice prong

. T o establish prejudice, Williams must show that there is “a reasonable probability that, but for counsel’s unprofessional

error s , t h e result o f the proceeding would have been different.” Strickland

, 466 U.S. a t 694. Comparing the mitig ation case that O’Neill presented to the c a s e t hat an adequate investig ation would have y ielded, we conclude that W illiams has alleg e d a colorable c laim that he was p rejudiced by O’Neill’s deficient performance.

O’ N e ill’s mitig ation case portray ed W illiams a s a thoug htful and dutiful child who g r ew up with the support o f

a loving family

, despite being “bounced around a lit t l e b i t” between homes and schools. I n lig ht of W illiams’ proffered evidence, we now know that an adequate investig ation would have r evealed an u

pbring ing marred by violence a nd upheaval, and a family

life rife with abuse and neg lect.

The declarat i o n s o f friends and relatives reveal a life plag ued by violen c e at home b eg inning when W illiams was five y ears o ld. I t was then tha t h i s mother married Tommy Eng e, who f

requently b eat her in front of the children—once

so badly that she miscarried. W h e n Williams stepped in to try to protect his mother, the violence was directed at h i m

. W illiams’ sister remembers one occasion on which Mr. Eng e beat an eig ht-y ear-old W illiams “like he was hitting a man.” W illiams and h is mother an d s i sters endured constant abuse for nearly three y ears, u ntil W illiams’ mother separated from Mr. Eng e

.W I L L I A M S V

. F I L S O N 37

Bu t any respite was short-lived. T he following y e a r, W illiams’ mother became bedridden with cance r. W illiams acted as her caretaker and ag oniz ed over her da i l y d e terioration until she died, when W illiams was nine. T h e sentencing judg es heard that W illiams “missed” his mo t her, but not that he was so distraug ht at her funeral that he nearly drag g ed her c asket o ff its platform, or that his teachers b eg an to recog niz e behavioral problems around this time.

F ollowing their mother’s death, W illiams and his sisters

were p assed bet w e en r elatives who foug ht over the Social Security benefits that followed them. The sentencing judg e s heard that W illiams was “shuffl[ ed] from one caring relative
to a n other,” each of whom “loved him very much.” They did
not hear that W ill i am s e x perienced constant abuse a nd
neg lect in each household.

W illiams and his sisters first moved in with their mother’s cousin, I n e z Kelly

. Ms. Kelly larg ely confined t h e children
to the house and hoarded food so that they did n o t have

e n o u gh to e at. W illiams was forced to assume adu l t responsibilities, acting as a parent to h i s y oung er sisters a nd learning to drive at a g e n i n e s o that he could take over the wheel when Ms. Kelly became too drunk to drive. When the children fai l e d to live up to Ms. Kelly ’s ex acting standards, she would punish them by locking t h e m i n a dark closet for hours or, more often, whip them with a n ex tension cord with fray ed w ires at the end. Thes e b ea t i n g s left the children bruised and bloody

. One whip p i n g s e nt W illiams’ sister to the emerg ency room, but W illiams consistently g ot the worst of it. Ms. Kelly ’s husband, Roosevelt Kelly , also frequently beat W illiams. On one o ccasion, Mr. Kelly “had [12-y ear-old W illiams] d o wn on the g round and was whipping him as hard

as he c ould, like he was hitting a p u n c h i n g bag .” Mr. K ellyW I L L I A M S V

. F I L S O N

38

also b attered Ms. Kelly and sex ually abused W illiam s’ sisters, w hich W illiams was helple s s t o prevent. Unable to endure this abuse, W illiams ran away at ag e 13.

W illiams then lived for a b r i e f t i m e with his a unt J ean W i lliams. The sentencing judg es w ere told that Williams “didn’t g et a long with” Aunt J ean’s husband, L awrence Eng e (Tommy Eng e’s y oung er b rother). They were n ot told that W illiams’ problem with Mr. Eng e was his frequent abuse of W illiams’ aunt, g randmother, and sister, or that Mr. Eng e was later convicted of child abuse.

W illiams and his sisters nex t moved in with their a unt Kathery n Carter and her husband L arry J o e Carter. Neg lected and ag ain denied fo o d

, t h e o nly attention the children received in this house was u n w a n ted. The Carters beat W illiams and h is sisters for a rang e of small infractions. A nd W illiams was ag ain left helpless to prevent the sex ual abuse

o f his sisters, this time a t the hands of Mr. Carter, who also alleg edly raped and impreg nated his o wn daug hter. W illiams and his sisters eventually returned to live with Aunt J ean a nd L awrence Eng e, who continued to sex ually abuse o ne o f W illiams’ sisters. I n the midst of this rampant sex u al abuse, Ms. Kelly had two of W illiams’ sisters fitted with intrauterine devices w ithout their knowledg e, w h ich have left them able to g ive birth only

throug h caesarean section.

As W illiams entered his teenag e y ears, this f amily turmoil

was incre asing ly matched b y violence outside the h ome. O’Neill t o l d the sentencing judg es that Williams g rew up in

a “roug h neig hborho od” where “white people would fear to g o,” b ut she failed to convey the level of violence he

ex p erienced. B etween ag e s 1 4 and 16, W illiams witnessed the shooting deaths of at least three of his friends. A t ag e 16W I L L I A M S V

. F I L S O N 39

or 17, he was surrou n d e d by teenag ers w ho placed a sawedoff shotg un in his mouth, only to be saved by a passing police

car. H e r e t u rned h ome from that incident to find his family already mourning his death. W illiams estimates that he was shot at o ver 100 times, a n d h e was struck on two occasions. At ag e 1 8, shortly befor e he moved to Reno, W illiams underwent three separate operations to dislodg e a bullet from his chest.

Unable to cope with his reality a t home and on the streets, W illiams turned to substance abuse at a y oung a ge

. He was

an alcoholic by a g e 13, and required medical t r e a t m e n t for sniff ing g lue three weeks after h is 14th birthday

. He eventually turned to harder drug s like PCP, a nd his behavior became increasing ly self-destructive. At 16, W illiams attempted to commit suicide by o verdosing on sleeping pills. At 18, distraug ht over the recent d eaths of his g randmother and favorite uncle, W illiams drove Au n t J ea n’s car into oncoming traffic in a busy intersection, resulting in a collision that totaled h is aunt’s car and left him w ith a severe head injury

.

W e cannot ag ree with the d istrict court that “much of the social history set f

o rt h in support of this claim was, indeed, presented to the three-judg e panel. ” The judg e s heard virtually nothing that would h ave helped them understand the full ex t e n t of the abuse and trauma W illiams had endured during his formative y ears, the role those ex periences play ed in shaping the p erson he b ecame, and why he mig h t therefore be deserving o f mercy

. O’Ne i l l only faintly h inted at the adversity W illiams faced during childhood, leading the prosecutor to describe her half-hearted “bad backg round” case as “almost laug

hable.”W I L L I A M S V

. F I L S O N

40

Had W illiams’ counsel b e en effective, the sentencing judg es would have learned that W illiams had precisely “the kind of troubled history [ the S u p r e me Court] ha[ s] declared relevant to a ssessing a d e fendant’s moral c ulpability

. ” W iggins
, 539 U.S. at 535. They w ould have learned that W illiam s endured relentless violence throug h out his

c h i l d hood and adolescence, and they would have g aine d insig ht into his inability to cope with that trauma throug h testimony describing his increa sing ly self-destructive behavior. “This evidence may n ot have made [ him] any more likable to the [

judg e s] , but it mig ht have helped the [ judg es] understand [ him]

, and his horrendous acts

. . . . ” S ears , 561 U.S. at 951.

The district court speculated that attempting to present the social h istory described a b o v e, “with witnesses g iving conflicting testimony and b e ing subject to cross-ex amination, would have p a i nted a murky and confusing picture o f W i lliams’s childhood.” This is precisely the kind o f speculation in which the district court should n o t have
eng ag ed without the benefit of an evidentiary hearing

, during which the cour t co uld actually assess how credible a nd compelling the testimony w ould have been. Th e mitig ating evidence submitted in support of Claim 1(F ) is sufficient to support the conclusion that Willi ams has a colorable claim that h e was p r ejudiced by O’Neil l ’ s deficient performance. Thus, t h e d i s t rict court abused its d iscretion in deny ing an evidentiar y h e aring as to Claim 1(F ). See Stankewitz v

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

W h ile the mitig ating ev i d ence underly ing Claim 1(F ) is sufficient on its own to support this conclusion, it is proper in

o u r prejudice analy sis to consider the impact this evidence would have had in combinatio n with the evidence of brainW I L L I A M S V

. F I L S O N 41

damag e underlying Claim 1(A). Claims 1(A) and 1(F ) a lleg e related aspects of O’Neill’s ineffective assistance i n p r e p a r ing W illiams’ mitig ation case. The claims are formally separate, however, because they were presented and handled piecemeal in the state courts. W e are bound by the standard of rev i e w attached to each claim

, a n d a c cording ly defer to the Nevada Supreme Court’s conclusion that the b rain damag e evidence underly ing Claim 1 ( A ) i s insufficient on its own to raise a reasonable probability that the o utcome o f W illiams’ sentencing hearing would have been different. However, that evidence cannot simply be ig nored when assessing prejudice as to Claim 1(F ).

I t is bey ond debate that evidence of brain damag e can be powerful mitig ating evidence. See Sears
, 561 U.S. at 956; Porter , 558 U.S. at 36, 41. Althoug h perhaps insufficient to have altered the outcome on its own, this evidence surely would have had some incremental impact on the sentencing decision. T hat incremental impact must be factored into the prejudice analy sis with respect to Claim 1(F ). W e have long
recog niz ed that the cumulative effect of multiple errors may prejudice a defendant even if no s ing le error in isolation is sufficient to establish prejudice. S ee United S

tat es v

. Frederick

, 78 F .3d 1370, 1381 (9th Cir. 1996). Of c ourse, we cannot consider t h e cu m ulative effect of non -errors. Fuller

v. Roe
, 1 82 F .3d 699, 7 0 4 (9th Cir. 1999) (per curiam), overruled o n other grounds by Slack v. McDanie l

, 5 2 9 U.S. 473 (2000). B ut the Nevada Supreme Court did not address whether O’Neill’s failure to u ncover evidence of W illiams’ brain damag e was c o nstitutio n ally deficient, and reviewing that aspect of the claim de novo , we have deter m i n e d that it

was. That failure was p a rt and parcel of O’Neill’s deficient performance in preparing W illiams’ mitig ation case, a nd so it is properly within the scope of our prejudice inq u i ry

. SeeW I L L I A M S V

. F I L S O N

42

Bemore
, 788 F .3d at 1 1 7 6 ; Sanders v. Ryder

, 342 F .3d 991, 1 0 0 1 ( 9th Cir. 2003); S

ilva v. W oodford

, 279 F .3d 825, 8 3 4 (9th Cir. 2002).

W e have long recog niz ed not only that “prejudice

r e s u lting from ineffective assistance of counsel must be ‘considered collect i v e l y , not item by item,’” but also that “[ t] hi s is particularly true when

. . . the different pieces o f mitig ating evidence fit tog ether into a n internally coherent and compelling narrative whole.” Doe
, 782 F .3d at 460 n.62 (quoting Kyles v. W

h itley

, 5 14 U.S. 419, 4 3 6 (1995)). Evidence of b r ain damag e and childhood abuse often operate in tandem and tog ether “amount[ ] to classic mitig ating circumstances.” Correll

, 539 F .3 d at 944; see also Earp
, 431 F .3d at 1179. That certainly could hav e been the case here, where the neg lected evidence would have been mutually corroborative and reinforcing

. The beating s W illiams endured may help ex plain his b rain damage (Dr. Schmidt

ex p lained that the brain damag e was likely caused in part b y “blows to his head d

uring his developmental y e ars”), and the history o f abuse sheds lig h t on h is psy cholog ical development (Dr. DePry e mphasiz ed the sig n ificance of W illiams’ “turbulent, chaotic and abusive u pbring ing as it relates to his behavior and personality

”).

Considering the impact that the evidence of b r ain damag e and c hi l d h ood abuse mig ht have had in tandem, we have no trouble concluding that W illia m s has presented a colorable

c l aim that he was prejudiced by O’Neill’s deficient performan c e in preparing the mitig a tion case. W e therefore hold that the district court abused its discretion in deny ing an evidentiary hearing on Claim 1(F ) and remand for suc h a hearing

. Once the eviden c e u n d e rly ing that claim has been further developed, the district court will be in a p o s i t i o n toW I L L I A M S V

. F I L S O N 43

determine whether W illiams is entitled to relief. I n assessing whether there is a reasonable probability that W illiams would have received a different sentence, the district court should consider “the totality of the a v ailab l e m i tig ation evidence,” including the evidence o f b r ain damag e, and “reweig h[ ] it
ag ainst the evidence in ag g ravation,” bearing in mind that two of the four ag g ravating factors considered at W illiams’ sentencing have since been stricken. W illiams v. Taylor

, 529 U.S. 362, 397–98 (2000). 3

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

W e tu r n n e x t to W illiams’ contention that the district
court e rred by deny ing his request for an evidentiary h earing

on two additional ineffective assistance o f counsel claims. I n Claim 1(B ), W illiams alleg es that O’Neill r e n dered ineffective assistance during the g u ilt phase by fa iling to prepare an adequate defense. I n Claim 1(G), W illiams contends that O ’Neill rendered ineffective assi stance during the penalty phase by failing to retain a m e d ical ex pert w ho could rebut the State’s evidence that M s. Carlson’s murder involved torture.

W illiams makes two related arg uments that apply equally
to both c laims. F irst, he arg ues that the district court’s r efusal
to hold an e v i dentiary h earing was predicated on the court’s

erroneous determination that it could not consider c ertain

3 Claim 1(H) alleg es an o th er related def icien cy in O’ Neill’ s pen alty

p h ase rep resen tatio n : h er f ailu re to o b tain W i lliam s’ j u v en ile reco rd s. If af ter f u rth er p ro ceed in g s o n th at claim

, see su pra sectio n II.A
, th e d istrict

c o u rt co n clu d es th at th i s f ailu re am ou n ts to d ef

icien t p erf

o rm an ce, t he n

an y p rej u d ice f

l ow i n g f ro m it sh o u ld f

ig u re i n th e co u rt’ s cu m u lativ e p rej u d ice an aly sis as w ell.W I L L I A M S V

. F I L S O N

44

documentary evidence (declarations, memos, and reports) submitted in s u pport of h is claims. Second, he arg ues that,

even if the district court’s initial ruling was correct under the la w a s 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).

W illia m s ’ f

irst arg ument is without merit. The district
court p roperly held that it could not consider the documentary evidence in q u e s t ion as to the merits of the ineffective assistance issues because W illiams did not su bmit that evidence to the state c ourts in the manner required under state law.

W illiams raised the substance of Claims 1(B ) and 1(G) in
st a t e p e titions for post-conviction relief filed in 1 984 a nd 1992, respectively

. The state trial court held e v i d entiary hearing s o n both claims and denied relief, ru l i n g s that the Nevada Supreme Court affirmed. W illiams did not submit
any of the documentary

evidence at issue here in connection with those earlier p etitions. He first presented the evidence
to the state courts in his six th p e t i tion for post-conviction relief filed in 2003. The Nevada Supreme Court held that W i l l i ams’ 2 003 petition was untimely under state law a n d therefore refused to consider the new evidence at all.

The district court correctly held that it could not consider the new evidence W illiams submitted to the state courts for the first time in 2003. A s t h e d i s t rict court recog niz ed, 28 U.S.C. § 2 254(e)(2) barred it from conducting an eviden t i a r y h earing to supplement the state court record on Claims 1(B ) and 1 (G). Sec t i o n 2254(e)(2) states that if a p e t i t i oner “has failed to develop the factual basis of a c lai m in State court proceeding s, the court shall not hold anW I L L I A M S V

. F I L S O N 45

evidentiary h e aring o n the claim,” with certain statutory

ex c e ptions n ot r eleva n t h e r e. Section 2254(e)(2) bars an evidentiary hearing i n f

e d er al court if the failure to develop the factual basis of a c laim in state court is attributable to a “lack of d ilig ence or som e o t h e r fault” on the petitioner’s part. W illiams v. Taylor , 529 U.S. 420, 434 (2000).

Here, W illiams was not dilig e n t in developing the f actual basis for Claims 1(B ) and 1(G) in state post-co n v iction proceeding s. All of the i n f o r mation contained in the documentary e vidence at issue ( which we discuss i n g reater detail b elow) could h ave been presented in W il liams’ first petition for state post-conviction relief in 1 9 8 4
, had his counsel been dilig ent in d iscovering it. I ndeed, the sta te courts refused to consider the new e v i dence when W illiams first presented it in 2003 p r e cisely because h is postconviction petition was untimely under state law. Thus, § 2254(e)(2) required the district court t o deny W illiams’ request for an evidentiary hearing

.

W illiams’ second arg ument is predicated on the Supreme Court’s decision in M

artinez
, which was d e cided after the district court’s initial r u l i n g deny ing relief on Claims 1 (B ) and 1(G). Martinez carved out a narrow ex ception to the rule

e s t a b lished in Coleman v. Thompson

, 501 U.S. 722 (1991), which h e l d that an attorney ’s failure to raise a claim at the
proper time under state law does not provide “ c au se”

ex c u sing the resulting procedura l default. Id. a t 757. Martinez created a different rule for ineffective assistance o f trial counsel claims that, under state l a w, must be raised in “an in i t i a l-review collateral proceeding .” 566 U.S. at 17. W ith 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 as s i s t a n c e at trial if, in theW I L L I A M S V

. F I L S O N

46

initial-review c ollateral proceeding

, there was no counsel o r counsel in that proceeding was ineffective.” Id.

W illiams relies on Martinez to make the fol l owing
arg ument. He contends t h a t under Nevada law, ineffective assistance of trial couns e l c l a ims must be broug ht in “an initial-review c ollateral proceeding .” He furt h er arg ues that the new d eclarat i o n s the district court refused to consider

were of such s i gn ificance that they effectively transformed h is ineffective assistance of trial c ounsel claims into “ n ew ” claims never presented to the state courts. Those n ew c laims

were therefore procedurally defaulted, he say s, but the default is ex cused under Martinez b ecause his counsel in the first post-conviction r eview proceeding was ineffective for failing
to properly raise the c laims at that time. The district court is free, W illiams concludes, to consid e r the new claims now, supported by the documentary evidence that the state courts refused to consider in 2003.

W illiams’ arg ument 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 h abeas
court from considering new evidence supporting a claim o f ineffective assistance of t r i al counsel if the new evidence either “fundamentally alter[ s] the leg al claim already

cons i d er e d b y the state courts or place[ s] the case in a

s i gnificantly different and strong er e videntiary posture th a n it was when the state c ourts c onsidered it.” I d

. at 1318 (internal quotation marks and citations omitted). I n e ither o f 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 c laim is therefore unex hausted and, if it c an no long er b e raised in state co urt, procedurally defaulted a s well. I t is at that point subject to analy sis underW I L L I A M S V

. F I L S O N 47

Martinez to deter m ine if the default can be ex cused. Id. at 1318–19.

The threshold question, then, is whether the new evidence contained in the declarations at issue places Claims 1(B ) a nd 1(G) in “a sig nificant l y different a nd strong er evidentiary
p o s ture,” such that under Dickens they must be deeme d “new” c laims not previously presented to the state courts. W e conclude that the declarations do not have that effect.

W e address Claim 1(B ) first, which alleg es that O’Neill rendered ineffecti ve a ssistance by failing to prepare an adequate defense during the g u ilt phase. W hen he presented this claim t o the state c ourts in 1984, Williams g rounded it mainly on alleg a tions that O’ N e i ll was inex perienced a nd overworked, and thus ill-equipped to handl e a case of this
mag nitude on her own. W illiams a l leg ed that O’Neill was just a few y ears o ut of law school an d h a d only recently joined the public defender’s office. S h e had little trial

ex p erience, had no ex p erience representing a d efendant in a felony case on her own, and had neve r tried a c apital c ase. And while Nevada law permitted the appointment of two public d e fenders to represent a capital defendant, O’Neill did
not request the assistance o f co-counsel. W illiams f urther alleg ed that O ’Neill was overworked a nd distracted because the public defender’s office ref u s ed t o g ive her a lig hter workload throug hout h is cas e

. B ecause O’Neill suffered from a lack o f support and ex perience, W illiams arg ued, she

was u nable to con d u ct the research and investig ation
necessary to prepare an adequate g

uilt-phase defense.

The new evidence W illiams submitted to the district court in support of this claim does n ot f undamentally alte r the nature of the claim or place it in a sig nificantly different a ndW I L L I A M S V

. F I L S O N

48

s t r o n ger evidentiary posture. S ee id. a t 1318. F or ex amp l e, W illiams produced a declaration fr o m a n investig a tor in the public defender’s office w ho worked with O’Neill at the time she represented W illiams. He states that O’Neill b e c a m e overwhelmed shortly afte r u ndertaking the representation,

a nd that she never requested his assistance even tho u gh h e

was the investig ator assig ned to W illiams’ case. This declaration merely ex pands on W illiams’ initial al l e ga tion that O’Neill was inex perienced and declined to use all of the

resources a t her disposal. As an additional item of new evidence, W illiams produced a memo from a supervisor in the pub l i c d efender’s office, sent during the period o f W illiams’ representation, stating that due to a staff s h o r t ag e in the office O’Neill could not “switch[ ] ” her cases with other attorney s. This memo substantiates but doe s not a lter the substance of W illiams’ earlier a lleg ation i n 1984 that the public defender’s office refused to g ive O ’ Neill a lig hter workload to allow h er to focus more intently o n his case. The remaining documents W illiams has p roduced are o f a similar

o r d e r. None of the new evidence W illiams submitted in support of Claim 1(B ) had the effect of transforming it into a “new” claim distinct from the c laim he had earlier presented to the state courts.

W e r each the same conclusion with respect to Claim 1(G). I n that cla i m , W illiams alleg es that O’Neill rendered ineffective assistance during the p enalty phase by failing to ob t a i n a medical ex pert to rebut the State’s evidence of the

a ggravating circumstance of torture. W illiams first alle g e d the substance of this claim in state court in 1992. The claim relates to the penalty -phase testimony of a patholog ist called by the State, Dr. Rog e r Ritz lin, who testified that Ms. Carlson

s u f fered several different ty

pes o f knife wounds during the attack: th r e e p otentially fatal w ounds to the chest; a numberW I L L I A M S V

. F I L S O N 49

of defensive wounds on Ms. Carlson’s hand s and arms; a nd

a third ty pe of w ound that Dr. Ritz lin described as “punctate” wounds—small, superficial cuts where the skin had been punctured, c onsistent with the victim having b een poked with

a knife. Dr. Ritz lin concluded that these superficial puncture wounds were non-fatal and non-defensive in nature. O n that basis, he concluded that Ms. Carlson had been tortured before being killed.

I n his 1992 petition, W illiams alleg ed that reasonably competent trial counsel would have consulted with independent medical ex perts a nd thereby obtained evidence refuting Dr. Ritz lin’s testimony that the superficial puncture wounds were the p r o d u c t of torture. H ad an independent

ex p ert been consulted, W illiams a lleg ed, the ex pert would have testified that the superf i c ial injuries Dr. Ritz lin identified were defensive wounds inflicted during the course of a strug g le, rather than wounds inflicted to torture the victim. I n particular, Williams alleg ed that a n i ndependent

ex p ert would have provided the following opinions:

• The “s u perficial” or “torture” wounds identified b y Dr. Ritz lin are consistent with wounds inflicted during a strug g le.

• The blood splatter patterns in the bedroom and the condition of [ the] crime scene a nd the nature a n d frequency of defense wounds on the victim demonstrate that the k illing occurred d

uring a tremendo u s strug g le and is inconsistent with a torture theory

.W I L L I A M S V

. F I L S O N

50

• The lack of non-s t a bbing injuries to the

victim and the locatio n of the so-called
torture wounds—in the areas o f the heart—are inconsistent with Dr. Ritz lin’s torture theory

.

The new e vidence a t issue here is a letter report prepared by Dr. Donald Reay
, a forensic patholog ist who reviewed (among other thing s) the a u t o p s y r e p o r t, a utopsy photog raphs, a

nd crime scene photog raphs, as well as the testimony of D r. Ritz lin. Dr. R ea y o pined that there was nothing to sug g est that the superficial puncture wounds identified by D r. Ritz lin were the product of torture. I nstead, he concluded that the sc a ttered wounds were defensive in charact er, likely suffered during the strug g le that occurred before the fatal wounds were inflicted. W illiams first presented Dr. Reay ’s r eport to the state c o urts in 2003 in connection with his six th state petition for post-co n v i c t ion relief. As n o t ed earlier, the state courts refused to consider the evidence on the g round that W illiams’ petition was untimely

.

I n our view, Dr. Reay ’s report d oes not place Claim 1(G) in a “sig nificantly different and strong er evidentiary posture” than the claim was in when W illiams first presented it to the
state courts in 1992. Dr. Reay ’s report, which is less than two pag es long

, adds little to the detailed alleg ations W illiams set forth in his 1992 petition. Consistent with W illiams’ earlier alleg ations, the report concludes that the injuries Dr. Ritz lin identified were likely d efen s i ve wounds inflicted during a strug g le. I ndeed, Dr. Reay ’s conclusion is based on the same factors that W illiams identified in his 1992 petition, including the superficial and scatt e r ed n ature of the wounds and the absence of any non-stabbing w ounds on the victim’s body

.W I L L I A M S V

. F I L S O N 51

To be sure, Dr. Reay ’s r e p ort supports W illiams’ previous assertions about the c onclusions that a medical ex pert would have reached, had o n e b een consulted. B ut the two-pag e report merely corroborates the d etailed alleg ations set forth in W illiams’ 1992 p e tition a n d t h us does not transform Claim 1(G) into a new and unex h austed claim. See Sivak v

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

Accordingl y , we affirm the district court’s denial of an evidentiary

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

D. Claim 16

I n Claim 1 6, W illiams challeng es the constitutional

v a l i d i t y o f t h e “ a v o i d lawful a rre s t ” a ggr a v a t i n g circumstance, o ne o f the four a g g ravators orig inally found b y the three-judg e sentencing panel. At the time o f W illiams’ trial, that ag g ravating circumstance req u ired the State to prove that “[ t] he murder was committed for the purpose o f avoiding or preventing

a lawful arrest or effecting an escape from custody .” Nev. Rev. Stat. § 200.03 3 ( 5 ) (1981). The State’s theory in this case was that W i lliams murdered Ms. Carlson to avoid and prevent his lawful arrest for the burg lary of the Carlsons’ home. T h e sentencin g judg es f ound sufficient eviden c e t o support that theory

. W illiams arg ues that Nevada’s avoid-lawful-arrest ag g ravating circumstance is facially invalid under the Eig hth Amendment both because it is too vag ue and because it fails to adequately n ar ro w the class o f death-elig ible d efendants. He further arg ues that, a s applied to him, the ag g ravating circumstance violates the Ex Post F acto Clause and the F ourteenth Am e n dment’s Due Process Clause because he lacked adequate notice at the time he committed the offense that § 200.033(5) c ould be a ppliedW I L L I A M S V

. F I L S O N

52

to the facts of h i s c r ime. W e do not find these contentions meritorious, even reviewing the merits of Claim 16 de novo

. 4

W e turn first to Williams’ Eig hth Amendment arg uments. He contends that, read most sensibly

, § 200.033(5) should be understood to apply only when the defendant’s a rrest is truly imminent, as when a d e f endant murders a police officer attempting to ta k e t h e defendant into custody

. The parties
ag ree that the Ne v a d a Supreme Court has rejected that reading of the ag g ravator. See Evans v. State
, 926 P.2d 265, 280 ( N ev. 1996); Cavanaugh v

. State
, 729 P.2d 4 81, 486 ( N e v

. 1986). I n W illiams’ view, rather than adopt h i s sensible construction of § 2 00.0 33(5), the Nevada Supreme Court has instead r ead it to apply whenever a defendant

m u rders the victim to prevent her from serving as a wi t n e s s who could later identify the defendant. The problem with that reading

, W illiams asserts, i s t h at the ag g ravating circumstance would apply in virtuall y every murder c ase, since the victim of the murder could a lway s b e a w i tness if allowed to live. Read t h at broadly

, the ag g ravating circumstance would likely v iolate th e Eig hth Amendment, for the Supreme Court has held that a g g ravati n g circumstances
must “ g enuinely narrow the c l a s s of p ersons elig ible for the death penalty .” Romano v. Oklahoma

, 512 U. S

. 1, 7 (1994) (internal q

uotation mark s omitted). Stated differently

, an ag g r avating circumstance “may n ot a pply to every defendant convicted of murder; it must apply o nly to a subclass o f

4 L i k e t h e d i strict co u rt, w e rev iew th e arg u m en t s raised in Claim 1 6 d e n ovo b ecau se th e Nev ad a Su p rem e Co u rt n ev er issu ed a ru lin g o n th e

m erits o f th e c l a i m

. T h at is b ecau se W illiam s lik ely pro ced u rally d ef au lte d t h e c l aim b y n o t raisin g it on d irect ap p eal, or ev en in h is f irst
state p etitio n f

o r p o st- co n v ictio n relief

. Ho w ev er, th e State n ev er asserted
p ro ced u ral def

au l t as a d ef

en se to th i s claim in th e d istrict co u rt an d h as

n o t asserted it as a d ef

en se o n ap p eal.W I L L I A M S V

. F I L S O N 53

defendants c onvicted o f m urder.” Tuilaepa v. California

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

The Nevada Supreme Court, however, has construed § 2 0 0.033(5) more narrowly than W illiams sug g ests. W e h a v e fo u nd no case in which the court adopted the broad, constitutionally problematic reading that W illiams p o sits. I nstead, the N evada Supreme Court h as upheld application o f the a g g ravating circumstance only when the State has proved that the d efendant committed murder fo r t h e purpose o f
pr e v e n t ing the v ictim from serving as a witness to some antecedent crime (separate from the mu r d er) that the defendant committ e d

. See, e.g. , Jeremias v. State
, 412 P.3d 4 3, 55 (Nev. 2018); Blake v. State
, 1 21 P.3d 567, 577 (Ne v

. 2005); Domingues v. St a t e , 917 P.2d 1364, 1375–77 (Nev. 1996); Cavanaugh

, 729 P.2d at 4 8 6

. T hat is the same limiting construction other States h ave adopted for their own,

s imilarly worded avoid-lawful-arrest ag g ravators. See, e.g. , Thompson v. State
, 648 So. 2d 6 92, 695 (F l a

. 1 9 94) (per curiam); P eople v. D avis
, 794 P.2d 159, 187 n.2 2 ( C olo. 1990), overruled on o ther grounds by People v. Miller

, 113 P.3d 743 (Colo. 2005). W e ag ree with the E i gh t h a nd Tenth Circuits that such a lim i ting construction adequately

narrows the class of defendants rendered elig ible for the death penalty

. See Davis v. E

x ecutive Director of the Department of Correctio n s , 100 F

. 3 d 7 50, 769 (10th Cir. 1 996); W ainwright v. Lockhart

, 80 F .3d 1 2 26, 1231 (8th Cir. 1996).

W illiams n ex t con t e n d s that the Nevada Supreme Court has inconsistently applied this limiting construction, such that the avoid-lawful-ar

r e st a g g ravator is unconstitutionally

v a gue. According to W illiams, the Nevada Supreme Co u r t has upheld application o f the circumstance in some cases involving a de f

e n dant who murdered the victim a fterW I L L I A M S V

. F I L S O N

54

committing a

n ant e c e d e nt crime, but has arbitrarily rejected application o f the circumstance in other cases with the same facts. W e do not read the case s a s ex h ibiting this kind o f arbitrariness in application. What they demonstrate is that the Nevada Supreme Court requ i r es the State to produce evidence from which the factfinder can re asonably infer that the defendant committed the murder for the purpose o f eliminating the victim as a witness f or an antecedent crime. W h ere such proof ex ists, the court has upheld application of the ag g ravating circumstance. S e e , e.g. , Randolph v. State
, 36 P.3d 424, 437 (Nev. 2001); Cavanaugh

, 729 P.2d a t 486. And where the cour t viewed such proof as lacking

, it has rejected appli c ation of the circumstance. See, e.g. , W itter v

. State
, 921 P.2d 886, 900 ( Ne v. 1 996), overruled on other grounds by Byford v

. S tate , 994 P.2d 700 (Nev. 2 000); Jimenez v. State
, 775 P.2d 694, 698 ( N e v

. 1989). None o f these factbound decisions renders the avoid-lawful-arrest
ag g r avating circumstance unconstitutionally vag ue.

W illiams makes o ne f i n al arg u ment that warrants discussion. He notes that, at the time he co m m i t ted his offense, the Nevada Supreme Court had not y et held that § 200.033(5) c ould be applied in a case like his, involving the murder o f a witness, as o pposed to someone actually involved in effectuating the defendant’s arrest. The court f irst upheld application of the ag g ravating circumstance in a case involving the murder of a witness more than four y ears after W illiams’ offense, in Cavanaugh v. State
, 729 P.2d 481 (Nev. 1986). W ill i a m s a rg ues that he lacked fair notice that the avoid-lawful-arrest ag g ravator could be applied to the facts o f his ca s e , a n d that any attempt to uphold application of the
ag g r avator b ased on the Nevada Supreme Court’s subsequent interpretation of it would violate the Ex Post F acto Clause.W I L L I A M S V

. F I L S O N 55

J udicial interpretation of a c r iminal statute may not be applied retr oactively if the c ourt’s decision is “unex pected and indefensible b y reference to the law which had been

ex p ressed prior to the condu ct i n issue.” Bouie v. City of Columbia

, 3 78 U.S. 347, 354 ( 1964). W e cannot say that the Nevada Supreme Court’s interpretation of § 2 0 0

. 033(5) constitutes an “unex pected and indefensible” break with prior Nevada law. W illiams has identified no pre- Cavanaugh authority from Nevada courts that is inconsistent with the rule Cavanaug h a dopted, and we have found none. I ndeed, Cavanaugh ’s interpretation of § 2 0 0.033(5) accords with a 1978 d ecision from the F lorida Supreme Court interpreting a nearly identical statute, which indicates that the interpretation adopted by the Nevada Supreme Court in Cavanaugh reflects

a readi n g of the provision’s tex t that c ould r easonably have been ex pected. See Riley v. State
, 366 So. 2d 19, 2 2 ( Fl a. 1978).

E. Adequacy

of Nevada’s Timeliness B ar

The district court held that many of W illiams’ claims a re procedurally defaulted under Nevada Revised S t a tutes § 34.726. That provision imposes a g eneral o n e-y e ar deadline for the filing o f petitions for post-conviction relief. A s n o t ed above, W illiams filed his six th and final state petition for post-conviction r elief in March 2003 to ex haust certain of his federal claims. The Nevada Supreme Court declined to consider most of t h e c l a ims raised in the 2003 petition on the gr ound that they w ere untimely under § 34.726. I n the district court, the State moved to d ismiss the
vast m a j o r i t y of W illiams’ claims, contending that § 34.726 is an independent and adequate state procedural rule that bars federal habeas review. The district court g ranted the State’s motion to d ismiss as t o many o f the claims r aised inW I L L I A M S V

. F I L S O N

56

W illiams’ third amended federal habeas petition. William s contends that § 34.72 6 is neither adequate to support the judg ment nor independent o f federal law and therefore cannot preclude federal review.

Under the procedural bar doctrine, a state court’s application of a p rocedural rule can preclude f e d eral h abeas review only if the rule is i n d ependent of f ederal law a

nd adequate to support the judg ment. Coleman

, 501 U. S

. at 729–30. To be adequate, the rule must be “firmly e stablished and r eg ularly followed” at the time of the purported default. Beard v. Kindler

, 5 5 8 U .S. 53, 60 (2009) (quoting Lee v

. Kemna
, 534 U.S. 362, 376 (2002)). T he State bears the initial burden of pleading the ex istence of a state procedural g round. Bennett v. Mueller

, 322 F .3d 573, 585–86 (9th Cir. 2003). I f

a state procedural g round ex ists, the burden then shifts to the petitioner, who mus t assert “specific factual alleg ations that demonstrate the inadequacy of the state p rocedure, including citation to a

uthority demonstrating inconsistent application o f the rule.” Id . at 586. I f the petitioner carries his burden, the burden shifts back to the State, which m ust show that the procedural rule “has been reg ula r l y and consistently a pplied in habeas actions.” Id

.

The State h as satisfied its initial burden by p leading the

ex istence of a procedural rule—§ 34.726—that, if applicable, is adequate to support the state court’s judg ment. I n its order affirming the denial o f W illiams’ final state habeas petition,
t h e N evada Supreme Court held that the petition was untimely because it was f

iled 16 y ears after the resolution of W illiams’ direct appeal. The court determined that W illiams could not show g ood cause to ex cuse his procedural default.W I L L I A M S V

. F I L S O N 57

Under Bennett
, W illiams bears t he burden of “asserting specific f a c t ual alleg ations that demonstrate the inadequacy of the state procedure.” Id. I n an attempt to meet this burden, W illiams contends that the rule was not clearly established o r consistently a

pplied a t the time of his d efault. He also arg ues 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 whe ther § 34.726 is a procedural bar to federal review, we must ex amine how the rule was a pplied “at t h e t i m e the claim should have been raised.” Fields v

. Calderon

, 125 F .3d 757, 760 (9th Cir. 1997) (quot ing Calderon v. U.S. D istrict Court
, 103 F .3d 72
, 7 5 ( 9th Cir. 1996)). This date, known as the “trig g er date,” id

., i s n ot a s simple to pin down here as in some of o ur prior cases. That is because the one-y ear time bar imposed by § 3 4.726 did not take e ffect until J anuary 1
, 1993. B y that time, W illiams h ad already filed f

ive state p ost-conviction petitions. So the only petition that could have been rendered untimely by § 34.726 is his six th and final petition, which he did not file until 2003.

I n 2001, the Nevada Supreme Court held for the first time that § 34.726 applies t o p e t i t ioners who had already f iled a petition for p ost-conviction relief prior to § 34.726’s effective date. I n Pellegrini v

. State
, 34 P.3d 519 (Nev. 2001), abrogated on o ther 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 y ear from § 34.726’s effective date in which to do so. Id. at 529. Under Pellegrini ’s holding

, then, W illiams had until J anuary 1, 1994, to file his six th and final state court petition.W I L L I A M S V

. F I L S O N

58

W illiams arg ues that it was not possible for h i m to comply w i t h the 1994 deadline a nnounced in Pellegrini because that c ase w as not decided until 2001, long a fter the deadline had p assed. This a rg u ment would have g reater force i f Williams had moved swiftly to comply with Pellegri n i

. B ut he did not. Pellegrini was decided on N ovember 15, 2001, a nd W illiams did n ot file his six th state c o u r t petition until March 6
, 2003, more than 15 months later. The district
court held that W illiams’ default occurred from J a n u a r y 1, 1994, the date by which Willi a m s was required to file his successive petition, throug h March 6, 2 003, the date he filed his last state court p etition. B ut even if w e were to restart the clock from the date that Pellegrini w as decid e d

, W illiams’ delay was more than the applicabl e o n e -y ear limit, and so constituted post- Pellegrini default. See Bennett
, 322 F .3d at 579 (holding that petitioner’s substantial d e l ay after the California Supreme Court announced a new procedural rule constituted a period of “continuous” default).

W i lliams identifies a number of cases in an attempt to establish that § 34.726 has been inconsistently applied. W e note at the outset that two of the cases, R i p po v. State
, 146 P.3d 279 (Nev. 2006), and Middleton v. W arden

, 98 P.3d 694 (Nev. 2004), were decided after either default date and so

are not relevant to our analy sis. See Fields

, 125 F .3d at 761 (ex plaining that the trig g er date is the date t he default occurred, not the date the rule was applied by the state court). W e note also th a t , i f we were to r estart the clock from the date that Pellegrini was deci d e d

, a ll but one of the cases W illiams cites would fall ou tside the relevant time period.

I n any event, the cases decided within either relevant time period do little to help W i l l i ams. I n Bejarano v. W arden

, 929 P.2d 922 ( N ev. 1996), the N evada Supreme CourtW I L L I A M S V

. F I L S O N 59

dismissed a successive post-conviction p e t i t i o n after a pply ing

a different procedural rule, not the timeliness bar of § 34.726. The c ou r t added in a footnote that it h ad considered a claim that the petitioner’s c ounsel was ineffective and “determined that [the claim] is without merit.” Id

. at 926 n.2. B ut this isolated and passing reference does not demonstrate that the particular state procedural r ule here at issue was inadequate. See Moran v. McDaniel

, 80 F .3d 1261, 1269 (9th Cir. 1996) (ex plaining that a “brief reference to the record d o e s not establish that the N evada Supreme Cour t inconsistently applies t h a t state’s procedural bar rule”). I ndeed, as the Nevada Supreme Court later ex plained, the Bejarano court’s reference to the “ merits” of the pe t i t ioner’s claim w as not a decision on the merits; rather, the c ourt was clarify ing that the petitioner h ad f

ailed to show prejudice sufficient to overcome procedural bar s

. See State v. Eighth J udicial District Court

ex rel. County of Clark

, 112 P.3d 1 070, 1079 (Nev. 2 005) ( County of Cla rk

).

W illiams’ reliance on H

ill v. State , 953 P.2d 1077 (Nev. 1998), is equally unavailing

. I n Hil l

, t h e Nevada Supreme Court reached the merits o f an ineffective assis t a n ce o f counsel claim without discussing procedural bars. Althoug h the ineffective assistance claim was raised more than one y e ar after Hill’s c onviction, the Nevada Supreme Court stated that H i l l ’s petition was, in fact, timely filed. Id. at 1081. The Nevada Supreme Court later clarified in Pellegrini that Hill’s petiti o n was timely u nder § 34.726 because the court

c o n strued the petition as a timely re-filed or renewed fi r s t petition. Pellegrini , 34 P.3d at 535.

Nex t, W illiams cites Ford v. W arden

, 901 P.2d 123 (Nev. 1995). However, we have p r e v i o u sly held that Ford is “ notW I L L I A M S V

. F I L S O N

60

relevant” to the question whether § 3 4 .726 has b een a pplied inconsistently

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

No r d o es W illiams’ c itation of unpublished authority undermine the adequacy of § 34.726. I n Farmer v. State
, No. 2 9 1 2 0, Order Dismissing Appeal (Nev. Nov. 20, 1997), the Nev a da Supreme Court did not discuss § 34.726 because it denied a post-co n v i ction petition on a different procedural
g round. No. 2:98-cv-00056, Dkt. No. 1 3 6 -5, at 47. Similarly

, i n N

e v i us v. W

arden

, Nos. 29027, 29028, Order Dismissing Appeal and Deny ing Petition for W rit of Habeas Corpus (Nev. Oct. 9, 1996), the N evada Supreme Court

ex p lained that it was disposing of t h e petitioner’s claims on other p rocedural g rounds, and that its discussion of the merits

was “ st rictly f

or the p urpose of demonstrating that [ Nevius]
cannot overcome his p rocedural defaults b y a showing o f actual p rejudice.” A reference to the merits of a p etition for
purposes of determining whether prejudic e c a n ex cuse a procedural bar does not constitute a decis ion on the merits inconsistent with the a

pplication of a p rocedural bar. See Moran
, 80 F .3d at 1269. F inally

, in Feazell v. State
, No. 37789, Order Affirming in Part and Vacati n g i n Part (Nev. N o v

. 14, 2 002), the only case cited by W illiams tha t w a s decided with i n a y ear of Pellegrini

, the Nevada Supreme Court vacated the p e titioner’s capital sentence and remanded for resentencing w ithout referencing the timeliness bar under § 34.726. No. 2:98-cv-00056, Dkt. No. 1 36-5, at 52–60. B ut the Nevada Supreme Court later e x p lained that there was g ood cause to ex cuse F eaz ell’s late filing

. See County of Clark , 112 P.3d at 1080.

Even if the cited authority could be deemed sufficient to satisfy W illiams’ burden under Bennett
, the State has carried its “ultimate burden” of showing that the state rule “ has beenW I L L I A M S V

. F I L S O N 61

reg ularly and consistently

applied” throug hout both relevant time periods

. B e n n ett , 322 F .3d at 5 86. At most, the cases W illiams identifies show that the Nevada Supreme Court has occasionally e x ercised its discretion to consider the merits o f untimely petitions. B ut “a di s c re t i o nary rule can be ‘firmly established’ and ‘reg

ul a r l y f o l l o w e d ’—even if the appropriate

ex e r cise of discretion may permit consideration of a federal claim in some cases b ut not others.” Beard

, 558 U.S. at 60–61. F or its part, the State h as identified a n umber o f
cases, both pre- and post- Pelleg r i n i
, demonstrating that the Nevada Supreme Court has reg ularly applied § 34.726 to bar untimely petitions. T h ese decisions show that the Nevada Supreme Court has applied the timeliness rule “ i n the vast majority ” o f cases to which the rule applies. Scott v. Schriro

, 567 F .3d 573, 5 80 (9th Cir. 2 009) (per curiam) (internal quotation marks omitted).

B e cause N evada Revised Statutes § 34.726 is an independent and adequate state p rocedur a l bar to federal review, we affirm the district court’s o r d e r dismissing the following claims: 3, 5–7, 10–13, 15, and 17–38.

The district court al s o initially dismissed several o f W illiams’ ineffective assistance of c o u nsel 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 issu e d its decision in Martinez
, the district
court recog niz ed that W illiams m ig ht be able to show cause for this default if he could est a blish ineffective assistance o f post-conviction counsel. H owever, the district c ourt concluded that thes e defaulted ineffective assistance o f counsel claims were also time-barred under AEDPA’s o n e

y ear statute of limitations, and so i t d e c l i n ed to conduct a Martine z a naly sis. As ex p lained above in section I I .A,W I L L I A M S V

. F I L S O N

62

W illiams is entit l e d to equitable tolling of AEDPA’s statute of limitations, so all of the c l a i ms asserted in his September 1999 amended petition are t i m ely under AEDPA. W e therefore reverse the dismissal of Claims 1(D), 1 (E), 1(H), 1(I ), and 1(J ) a

nd remand for the district c ourt to d etermine in the first instance whether W illiams’ procedural defa u l t is

ex c u sed under Martinez

.

F

. Rule 60(b) Motion

After the distr i ct c o urt entered final judg ment in 2012, W illiams filed a motion under F ede r a l Rule of Civil Procedure 60(b) raisi n g a new arg ument based on Hurst v

. Florida

, 1 36 S. C t

. 6 1 6 (2016). According to W illiams, Hurst established a new rul e i n capital sentencing proceeding s r equiring the factfinder to de t ermine that the

a ggr a v a t i n g c i r c u m s t a n c e s o u t w e i g h t h e m i t i ga t i n g circumstances bey ond a reasonable doubt. I n his Rule 60(b) motion, he arg ued that this new rule entit l es h i m to relief because the Nevada Supreme Court d id not apply the bey onda-reasonable-doubt standard when it c o n d u c t e d i t s r e w e ig hing analy sis in 2006 and 2007. Th e d i s trict court denied W illiams’ motion on t h e gr ound that it w as a disg uised

s e c ond or successive federal habeas petition. Our cou r t subsequently g ran t e d W illiams a certificate of appealability on that issue.

W illiams challeng es the district c ourt’s denial of his Rule 60(b) motion in Case No. 17-15768. As a backup, he h as also filed an a pplication f

or leave to file a s e c ond or successive petition under 28 U.S.C. § 2244(b)(3) in Case No. 17-71510.

W e find it unnecessary to decide whether W illiams’ Rule 6 0(b) motion was a disg uised second or successive petiti o n

.W I L L I A M S V

. F I L S O N 63

To ex p edite resolution of these proceeding s, we will a ssume without d eciding that it was not, and that the dist r i c t c o u rt

was the r ef

o r e permitted to rule on the motion. See Jones v

. Ryan
, 733 F .3d 825, 838 (9th Cir. 2 0 13). On the m e r i t s , however, it is clear under Y b arra v. F

ilson

, 869 F .3d 1 0 16 (9th Cir. 2017), that W i l liams is not entitled to relief. I n Y b arra , w e h eld tha t e v en if Hurst established the new rule W illiams urg es, that rule w ould n ot apply retroact i v e l y in

c ases like this one on collateral review. Id. a t 1 0 3 3

. Moreover, W illiams is not entitled to relief f or the additional

reason that his Rule 60(b) motion rests on an incorrect f actual premise. W hen the Nevada Supreme Court cond u cted its reweig h ing a naly sis, it ex pressly applied the bey ond-areasonable-d o u b t standard: “After reweig hing here, we conclude bey ond a reasonable doubt that absent the erroneous ag g r avators the sentencing panel would have found W illiams death elig ible and imposed a sentence of death.”

W e affirm the district court’s denial of W i l l iams’ Rule 60(b) motion. W e deny his application t o f ile a second o r successive petition under 28 U.S.C. § 2244(b)(3).

I I I . Conclusion

I n Case No. 13-99002, we A F F IRM in part, REVERSE in part, and R EMAND for further proceeding s. I n particu l a r , we conclude that the district court erred b y deny ing W i lliams equitable tolling

, which requires us to

reverse the c ourt’s dismissal of Claims 1(C), 1( D ), 1 ( E), 1(H), 1(I ), 1(J ), 9, and 14 and remand for further proceeding s

as to those claim s

. We r everse the district court’s denial o f W illiams’ request for an e videntiary h earing on Claim 1(F )

a n d remand for the district c ourt to c onduct an evidentiary hearing as to that claim. W e affirm the d istrict court’s denialW I L L I A M S V

. F I L S O N

64

of W ill i a m s ’ third amended h a b eas petition in all other respects.

I n C a s e No. 17-15768, we AF F IRM the d istrict court’s den i a l o f W illiams’ motion under F e deral Rule o f Civil Procedure 60(b).

I n Case No. 17-71510, we DENY W illiams’ application to file a second or successive federal habeas petition.

The parties shall bear their own costs on appeal.