1 21-16174 

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICKEY WAHL, 

Petitioner-Appellant, 

 v. 

CHARLES L. RYAN, 

Respondent, 

and 

ATTORNEY GENERAL FOR THE STATE 

OF ARIZONA; DAVID SHINN, Director, 

Respondents-Appellees.

No. 21-16174 

D.C. No. 4:18-cv-00046-DCB 

MEMORANDUM*

Appeal from the United States District Court

for the District of Arizona

David C. Bury, District Judge, Presiding

Argued and Submitted March 6, 2023 

Las Vegas, Nevada

Before: CLIFTON, BYBEE, and BENNETT, Circuit Judges.

Petitioner-Appellant Mickey Wahl (“Wahl”) appeals the district court’s 

denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. While 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

MAR 15 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 21-16174 

denying and dismissing with prejudice Wahl’s habeas petition, the district court 

certified for appeal one claim of post-conviction review (“PCR”) ineffective 

assistance of counsel (“IAC”). We have jurisdiction under 28 U.S.C. 

§§ 1291, 2253, and we affirm. Because the facts and procedural history are 

familiar to the parties, we do not recount them here.

We review a district court’s denial of habeas relief, including questions 

regarding procedural default de novo. Dickinson v. Shinn, 2 F.4th 851, 857 (9th 

Cir. 2021). “Ineffective assistance of counsel claims are mixed questions of law 

and fact which we also review de novo.” Id. (quoting Jones v. Shinn, 943 F.3d 

1211, 1219–20 (9th Cir. 2019). The district court’s factual findings are reviewed for 

clear error. Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010).

In the sole issue certified for appeal,1 Wahl alleges that his PCR counsel was 

ineffective by not raising a claim of trial counsel ineffectiveness, thus excusing the 

procedural default of that claim (which he admits) under Martinez v. Ryan, 566 

U.S. 1 (2012). 

When a claim is procedurally defaulted, a federal habeas court can review 

the merits of the claim only if the petitioner is “able to make two showings: (1) 

1 Wahl also raises several other issues that have not been certified for appeal 

by the district court and for which we decline to issue a certificate of appealability 

because he failed to make a substantial showing of the denial of constitutional 

rights that reasonable jurists would find debatable. See 28 U.S.C. § 2253(c)(2); 

Robertson v. Pichon, 849 F.3d 1173, 1187 (9th Cir. 2017); Ninth Cir. R. 22–1(e).
3 21-16174 

‘cause’ for the default, where the cause is something external to the prisoner that 

cannot be fairly attributed to him; and (2) prejudice.” Clabourne v. Ryan, 745 F.3d 

362, 375 (9th Cir. 2014), overruled in part on other grounds by McKinney v. Ryan, 

813 F.3d 798 (9th Cir. 2015) (en banc) (citation omitted). In states where trial IAC 

claims must be raised in post-conviction collateral proceedings, as is the case in 

Arizona, such “cause” sufficient to excuse a procedural default may exist “if, in the 

initial-review collateral proceeding, there was no counsel or counsel in that 

proceeding was ineffective.” Martinez v. Ryan, 566 U.S. 1, 17 (2012). 

In Clabourne, we explained that to demonstrate “cause” under Martinez, a 

petitioner “must establish . . . that both (a) post-conviction counsel’s performance 

was deficient, and (b) there was a reasonable probability that, absent the deficient 

performance,” the post-conviction proceedings would have resulted differently.

Clabourne, 745 F.3d at 377 (citing Strickland v. Washington, 466 U.S. 668, 687 

(1984)). Thus, determining the probability that PCR proceedings would have been 

different is “necessarily connected to the strength of the argument that trial 

counsel’s assistance was ineffective.” Id.

Wahl contends that his trial counsel was ineffective in failing to request a 

jury instruction defining the term “unlawful physical force” within the self-defense 

jury instruction when self-defense was the crux of his defense. Even if we assume
4 21-16174 

that PCR counsel’s failure to make this argument was deficient performance,2 we 

conclude that there is no reasonable probability that the PCR proceedings would

have resulted differently because a jury instruction defining “unlawful physical 

force” would not have changed the outcome.

First, the trial court’s definition of “unlawful” instructed the jury to consider 

whether “the context so requires, [that the actions in question are] not permitted by 

law.” There was significant witness testimony—including from Wahl—regarding 

the physical altercation between Wahl and the victim, such as testimony that the 

victim was punching Wahl through an open car window, trying to grab the steering 

wheel from Wahl, and attempting to pull Wahl from his seat through the window.

It is implausible that a reasonable juror would think that the victim’s actions were, 

in context, permitted by law.

Second, Wahl’s reliance on State v. Fish, 213 P.3d 258, 275–78 (Ariz. Ct. 

App. 2009), is misplaced. Fish does not require a court to have defined “unlawful 

physical force” in Wahl’s case. In Fish, the court worried that 

a jury not instructed on the definitions of assault and endangerment may 

have concluded there could not have been unlawful physical force because 

there was no contact [between the defendant and the victim]—[which] 

makes it clear that the missing instructions provided the jury with the means 

of completely disregarding all of the self-defense evidence. 

2

“[A] court need not determine whether counsel’s performance was 

deficient before examining the prejudice suffered by the defendant as a result of 

the alleged deficiencies.” Strickland, 466 U.S. at 697.
5 21-16174 

Id. at 279 (internal quotation and citation omitted). Unlike in Fish, a reasonable 

juror here could not have disregarded the self-defense evidence given the extensive 

evidence of physical contact between Wahl and the victim. Additionally, unlike in 

Fish, in which “[t]he only real issue at trial was self-defense,” id. at 277, Wahl 

raised defense-of-an-occupied-vehicle and pursued alternative theories of who had 

caused the victim’s death.

Because it is unlikely that trial counsel asking for the definitional jury 

instruction would have changed the outcome of the trial, it is equally unlikely that 

PCR counsel having raised this trial IAC claim would have changed the outcome 

of the post-conviction proceedings. Therefore, Wahl has not demonstrated cause to 

excuse PCR counsel’s procedural default of this trial IAC claim.3

AFFIRMED.

3 We therefore need not consider whether the alleged PCR IAC claim was 

prejudicial. Clabourne, 745 F.3d at 377 (petitioner must show both cause and 

prejudice to overcome procedural default).