                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


SEAN BERNARD RUNNINGEAGLE,                No.  07-99026
          Petitioner-Appellant,
                                          D.C. No. 
               v.                     CV-98-01903-PGR

CHARLES L. RYAN, Director,
Arizona Department of                      OPINION
Corrections,
             Respondent-Appellee. 


     Appeal from the United States District Court
              for the District of Arizona
  Paul G. Rosenblatt, Senior District Judge, Presiding

       Argued and Submitted February 10, 2016
                Pasadena, California

                    Filed June 10, 2016

   Before: Harry Pregerson, Kim McLane Wardlaw,
          and Carlos T. Bea, Circuit Judges. 

              Opinion by Judge Wardlaw
2                   RUNNINGEAGLE V. RYAN

                           SUMMARY*


               Habeas Corpus / Death Penalty

    The panel affirmed the district court’s denial, on limited
remand, of claims of ineffective assistance of counsel brought
in a habeas corpus petition in a capital case. 

    The district court originally denied the ineffective
assistance claims as procedurally barred.  On appeal, the
panel affirmed the district court’s denial of the habeas
petition but stayed the court of appeals’ mandate and ordered
a limited remand to allow the district court to reconsider its
prior rulings in light of Martinez v. Ryan, 132 S. Ct.  1309
(2012), which announced a new equitable rule allowing a
petitioner to show cause for the procedural default of certain
ineffective assistance claims.  On limited remand, the district
court concluded that the petitioner did not show cause under
Martinez, and thus did not excuse the procedural default. 

     To show cause under Martinez, a petitioner must
demonstrate that the state system in which he initially brought
his ineffective assistance claims required that they be raised
in initial-review collateral proceedings, and did not permit the
petitioner to raise them on direct appeal.  He must also show
that the attorney who represented him in post-conviction
review proceedings performed deficiently and thereby
prejudiced his case under the standards of Strickland v.
Washington. 


  *
    This summary constitutes no part of the opinion of the court.  It has
been prepared by court staff for the convenience of the reader. 
                  RUNNINGEAGLE V. RYAN                       3

    The panel held that the district court erred in concluding
that Martinez was inapplicable because, at the time of the
petitioner’s direct appeal, Arizona allowed defendants to
bring ineffective assistance claims on direct appeal.  The
panel concluded that in fact, during the relevant period,
Arizona did require petitioners to bring ineffective assistance
claims in initial-review collateral proceedings, not expressly,
but by virtue of the operation of its procedural system. 
Nonetheless, the petitioner failed to show that his post-
conviction review counsel performed deficiently and to his
prejudice. 

    The panel affirmed the district court’s judgment and
order, and its continued denial of the habeas petition.  The
panel lifted the stay of the mandate and ordered that it would
issue in the regular course. 


                         COUNSEL

Jennifer Y. Garcia (argued), Assistant Federal Public
Defender; Jon M. Sands, Federal Public Defender; Arizona
Federal Public Defender’s Office, Phoenix, Arizona, for
Petitioner-Appellant. 

Jon G. Anderson (argued), Assistant Attorney General,
Capital Litigation Section; Lacey Stover Gard, Chief
Counsel; Mark Brnovich, Attorney General; Arizona
Attorney General’s Office, Phoenix, Arizona, for
Respondent-Appellee. 
4                 RUNNINGEAGLE V. RYAN

                          OPINION

WARDLAW, Circuit Judge:

    In 1988, petitioner Sean Bernard Runningeagle was
convicted of two counts of first degree murder in Arizona
state court.  He was sentenced to death in 1989, and the
Arizona Supreme Court affirmed his conviction, sentence,
and the denial of his state petition for post-conviction relief. 
State v. Runningeagle (Runningeagle I), 859 P.2d 169 (Ariz.
1993).  Runningeagle then petitioned for a federal writ of
habeas corpus, which the district court denied.  In 2012, while
Runningeagle’s appeal of that decision was pending before
us, the Supreme Court decided Martinez v. Ryan, 132 S. Ct. 
1309 (2012).  Martinez announced a new equitable rule that
allows a petitioner to show cause for the procedural default of
certain ineffective assistance of counsel (“IAC”) claims.  We
affirmed the district court’s denial of Runningeagle’s petition,
but also stayed the mandate and ordered a limited remand to
allow the district court to reconsider its prior rulings that
several of Runningeagle’s IAC claims were procedurally
defaulted in light of Martinez.  Runningeagle v. Ryan
(Runningeagle II), 686 F.3d 758 (9th Cir.  2012).  On remand,
the district court concluded that Runningeagle did not show
cause under Martinez, and thus did not excuse the procedural
default of the IAC claims.  Runningeagle appeals. 

     To show cause under Martinez, a petitioner must
demonstrate, inter alia, that the state system in which he
initially brought his IAC claims required that they be raised
in initial-review collateral proceedings, and did not permit the
petitioner to raise them on direct appeal.  He must also show
that the attorney who represented him in post-conviction
review (“PCR”) proceedings performed deficiently and
                  RUNNINGEAGLE V. RYAN                         5

thereby prejudiced his case under the standards of Strickland
v. Washington, 466 U.S. 668 (1984). 

    We hold that the district court erred in concluding that
Martinez was inapplicable because, at the time of
Runningeagle’s direct appeal, Arizona allowed defendants to
bring IAC claims on direct appeal.  To the contrary: during
the relevant period, Arizona actually did require petitioners
to bring IAC claims in initial-review collateral proceedings,
not expressly, but by virtue of the operation of its procedural
system.  See Trevino v. Thaler, 133 S. Ct.  1911, 1915 (2013). 
The proceedings in this very case demonstrate the operation
of Arizona’s requirement.  However, Runningeagle fails to
show that his PCR counsel performed deficiently and to his
prejudice.  His IAC claims therefore remain in procedural
default, and do not serve as a basis for federal habeas relief. 
We affirm the district court’s denial of the petition. 

                   I. Factual Background

   We again1 take the facts as recited by the Arizona
Supreme Court in its 1993 opinion:

        In the early morning of December 6, 1987,
        Runningeagle, [his cousin Corey] Tilden, and
        their two friends Orva and Milford Antone,
        were driving around Phoenix.  Runningeagle
        wanted parts for his car, so the foursome
        stopped at the Davis house, which had a car
        parked outside.  Runningeagle, Tilden and
        Orva got out of the car, while Milford

   1
     Runningeagle II, 686 F.3d at 763–64 (quoting Runningeagle I,
859 P.2d at 171–72); see also id. at 763 n.1. 
6             RUNNINGEAGLE V. RYAN

    remained passed out drunk in the back seat. 
    Runningeagle used his large hunting knife to
    remove two carburetors from the Davis car. 
    Orva put them and an air scoop in the trunk of
    Runningeagle’s car.  Tilden and Runningeagle
    also stole a floor jack and tool box.  Orva took
    a bicycle from the open garage. 

    Herbert and Jacqueline Williams, an elderly
    couple, lived next door to the Davises.  Mr.
    Williams came out of his house and told the
    young men to leave or he would call the
    police.     Orva returned to the car, but
    Runningeagle and Tilden approached Mr.
    Williams.  Runningeagle concealed his knife
    by his side.  Tilden carried a large, black
    flashlight.  Runningeagle then began to tease
    and scare Mr. Williams with the knife.  Mr.
    Williams retreated and told Runningeagle to
    put the knife away.  Mrs. Williams then came
    out of the house and yelled at them.  Tilden
    confronted Mrs. Williams, argued with her,
    and then hit her on the side of the head with
    the flashlight.  Mr. Williams told them to
    leave his wife alone, and helped her back into
    the house.  Runningeagle broke through the
    Williams’ door with a tire iron, and he and
    Tilden barged in. 

    The noise awakened a neighbor, who heard
    Mrs. Williams crying and the words “bring
    him in” spoken by a tall, young man he saw
    standing in the Williams carport.  The
    neighbor called “911,” but by the time the
          RUNNINGEAGLE V. RYAN                     7

police arrived, Mr. and Mrs. Williams were
dead.  Mr. Williams suffered several head
injuries and five stab wounds, three of which
were fatal.  Mrs. Williams also suffered
several head injuries, one of which fractured
her skull and was possibly fatal, in addition to
four stab wounds, three of which were fatal. 

The police searched the Williams home.  The
drawer in which Mrs. Williams stored her
jewelry was open and some jewelry was
missing.  They found an empty purse, blood
drops and two bloody shoe print patterns. 
They discovered Runningeagle’s palm print
on the clothes dryer next to the bodies. 

Runningeagle discussed the crimes on several
occasions before his arrest.  He told his
girlfriend that he had been in a fight with two
people and had hit them “full-force.”  He
showed her his car trunk full of the stolen
property.  He showed the hood scoop and
carburetors to another friend.  Tilden, too,
spoke about the crimes and informed
Runningeagle that an account of the burglary
was on the radio and that “they got there an
hour after we left.” 

When the defendants were arrested, the police
found, among other things, the Davis air
scoop with Runningeagle’s prints on it, two
carburetors, the tool box, Mrs. Williams’
wallet and college pin, a large black flashlight
with Tilden’s prints on it, and the Davis
8                RUNNINGEAGLE V. RYAN

       bicycle with Runningeagle’s prints on the
       wheel rim.  A Phoenix Police Department
       criminalist matched Runningeagle’s shoes
       with the bloody shoe prints found at the
       Williams house, and also found that an inked
       print of Tilden’s shoes made a pattern similar
       to other shoe prints at the house. 

       Runningeagle, Tilden, and Orva Antone were
       indicted on two counts of first degree murder,
       and one count each of first degree burglary of
       a residence, second degree burglary of a
       residence, third degree burglary of a car, theft
       of property valued between $500 and $1000,
       and theft of property valued between $250
       and $500.  Orva Antone pleaded guilty to
       burglary and testified for the state at the joint
       trial. 

       After a five-week trial, Runningeagle and
       Tilden were convicted on July 27, 1988. 
       Runningeagle was found guilty of two counts
       of first degree murder, two counts of theft,
       and one count each of first degree burglary,
       second degree burglary, and third degree
       burglary.  Tilden was convicted of the same
       charges except for third degree burglary. 

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

                  II.  Procedural Background

A. Sentencing and Special Verdict

     Baltazar Iniguez was appointed to represent Runningeagle
at trial and sentencing.  Iniguez gathered a total of 15 letters
from Runningeagle’s family members and acquaintances,
which he submitted as mitigation evidence.  Iniguez also
presented the direct testimony of several witnesses on
Runningeagle’s behalf at evidentiary hearings, and he
examined or cross-examined several of Tilden’s witnesses,
who were Runningeagle’s family members or acquaintances,
at these hearings.2

    Arizona probation officers prepared two presentence
reports (“PSRs”) concerning Runningeagle, which contained
information about his family and social background, criminal
history, health, and use of alcohol and illicit substances. 
These reports quoted Iniguez, who vouched for
Runningeagle’s good character, stated that the murders were
fueled by alcohol, and recommended leniency.  It does not
appear from the record that Iniguez gathered outside
information for the probation officers or disputed the
accuracy of the PSRs. 

   Iniguez successfully petitioned the court under Arizona
Rule of Criminal Procedure 26.5 for two mental health


 2
    At the first of these hearings, Runningeagle sought the appointment of
new counsel, and stated that Iniguez was “ineffective and inefficient.” 
Iniguez moved to withdraw, citing the “barrier” between himself and his
client, and Runningeagle’s lack of cooperation.  The court denied these
requests, and stated that Runningeagle would “have an opportunity to raise
all of these allegations by way of Petition for Post-Conviction Relief.” 
10                   RUNNINGEAGLE V. RYAN

examinations of Runningeagle.  These examinations were
conducted by Doctors M.B. Bayless and Francis A. Enos.  Dr.
Bayless diagnosed Runningeagle with antisocial personality
disorder, and Dr. Enos found that his behavioral pattern was
“sociopathic rather than neurotic or psychotic.”  Because
Iniguez had requested these examinations under Rule
26.5—against the advice of Tilden’s attorney, Roland J.
Steinle III, who had recommended requesting court funds for
private examinations3—Iniguez’s attempts to exclude Dr.
Bayless’s and Dr. Enos’s reports were unsuccessful, and he
was required to file them with the court. 

     Before the final sentencing hearing, Iniguez submitted an
eight-page sentencing memorandum.  Iniguez argued that
Runningeagle should be spared the death penalty, and should
instead receive two concurrent life sentences.  Iniguez
contended that Runningeagle’s mind was impaired by
alcoholic “jungle juice” at the time of the murders; there was
insufficient evidence that Runningeagle, rather than Tilden,
committed the murders; and the murders were out of
character.  Iniguez also sought to rebut the anticipated
aggravating factors relied upon by the state.  He argued the
killings were not “cruel, heinous and depraved,” there was no
evidence of an expectation of pecuniary gain, and they should
not be considered two separate killings because both occurred


   3
     Arizona Rule of Criminal Procedure 26.5 provided, “At any time
before sentence is pronounced, the court may order the defendant to
undergo mental health examination or diagnostic evaluation.  Reports
under this section shall be due at the same time as the pre-sentence report
unless the court orders otherwise.”  According to Steinle, Arizona courts
construed this rule to generally require disclosure of reports for use at
sentencing.  Thus, if a Rule 26.5 report contained negative information,
there was no way to prevent the sentencing judge from considering that
information. 
                     RUNNINGEAGLE V. RYAN                            11

within a “very short period of time,” that is, that each murder
was committed during the commission of the other.  Finally,
Iniguez claimed three mitigating factors were present:
Runningeagle was young, intoxicated, and “under unusual or
substantial duress.”  Iniguez did not present new evidence in
support of the memorandum, and relied instead on the PSRs
and trial testimony and evidence. 

    Runningeagle and Tilden were jointly sentenced at a
February 3, 1989 hearing.  The court issued a special verdict,
from which it read at the hearing, sentencing Runningeagle to
death and Tilden to two consecutive terms of life
imprisonment.  In imposing Runningeagle’s sentence, the
court found that the state had proved three statutory
aggravating circumstances: that the murders were committed
with the expectation of pecuniary gain; that they were
“especially cruel, heinous and depraved”; and that
Runningeagle was convicted of one or more homicides during
the commission of the offense.  See Ariz. Rev. Stat. §  13-
703(F)(5), (6), (8) (1988).  Upon considering the evidence
submitted by Iniguez, the court found that the only mitigating
circumstance for the murder counts was Runningeagle’s age,
“one day short of 19,” which was not sufficient to call for
leniency.4 The court found that the testimony and letters from
Runningeagle’s family and friends did not compel mitigation. 
The court stated that Runningeagle had not shown any feeling
for family or friends, that he was concerned only with
“himself and his own appetites,” and that the psychological
reports indicated that he did not “have the types of feelings or
emotions that people usually have for family or friends.” 


 4
   The court found that Runningeagle’s burglary and theft counts, but not
the murder counts, were mitigated by a “[h]istory of family problems
although not overly severe.” 
12                RUNNINGEAGLE V. RYAN

Although the court quoted at length from the Bayless and
Enos reports at the sentencing hearing, and also considered a
psychological report prepared by Doctor Roger M. Martig for
prior Juvenile Court proceedings, the court stated that it did
not consider these as aggravating circumstances, but neither
did it find that they weighed in favor of mitigation. 

    In sparing Tilden death, the court found “significant and
considerable differences” between him and Runningeagle. 
The court found that the state had not proved beyond a
reasonable doubt that Tilden participated in the murders with
the expectation of pecuniary gain, though the other two
aggravating factors were present.  The court noted that Tilden
had a difficult childhood, but it did not expressly give weight
to this circumstance.  It found that psychological evidence
that Tilden suffered from a personality disorder was not, in
itself, a mitigating circumstance.  The court found highly
significant the great weight of the evidence suggesting that
Runningeagle, and not Tilden, had personally inflicted the
fatal stab wounds.  The court concluded that Tilden had
followed his charismatic, older, more intelligent cousin on the
night of the murders, and that Tilden, unlike Runningeagle,
had a conscience and was capable of rehabilitation.  The court
stated, however, that “these comparisons were not used in
aggravation of defendant Runningeagle’s sentence.” 

B. PCR and Appellate Proceedings

    Following sentencing, Runningeagle commenced PCR
proceedings pro se by filing a form petition for post-
conviction relief and a petition for writ of coram nobis.  The
coram nobis petition alleged that Iniguez had failed to
perform an adequate investigation, mount an effective
defense, or object to inadmissible evidence and prosecutorial
                   RUNNINGEAGLE V. RYAN                          13

misconduct.  On March 23, 1990, John M. Antieau was
appointed to represent Runningeagle in the PCR and appellate
proceedings.5     The Arizona Supreme Court stayed
Runningeagle’s direct appeal pending determination of his
PCR petition.  The same judge who had presided over trial
and sentencing also presided over the initial PCR
proceedings. 

    Over the government’s objection, the PCR court granted
Antieau’s motion for the appointment of an investigator,
Mary Durand, and a mental health expert, Doctor Otto
Bendheim.  Antieau filed a supplemental petition challenging
Runningeagle’s sentence on eleven grounds, including two
IAC claims for failure to move to sever Runningeagle’s trial
from Tilden’s, and for a deficient closing argument.  Antieau
also filed a second supplemental petition in which he
challenged Dr. Bayless’s and Dr. Enos’s diagnoses of
antisocial personality disorder, and requested $1500 in
additional funds so a new doctor, Bendheim, could interview
Runningeagle in prison. 

    On April 23, 1991, the PCR court summarily dismissed
Runningeagle’s petitions.  It found that, in his initial pro se
petition, Runningeagle had not raised a “‘colorable claim’ . . . 
of ineffective assistance of trial counsel,” and that even if his
complaints were valid, the evidence against him was
overwhelming, and the result would not have been different. 
The court found that the claims raised in the supplemental
petitions filed by Antieau were “still raisable on direct
appeal.”  It denied the request for additional funding for Dr.
Bendheim to prepare a report, which the court viewed as “not

  5
    Antieau was appointed after Runningeagle successfully sought the
removal of another appointed PCR and appellate counsel. 
14                RUNNINGEAGLE V. RYAN

appropriate in the context of post-conviction relief
proceedings.”  In addressing this issue, the court opined that
Runningeagle appeared to “take[]one aspect of the Court’s
sentencing as if it were the only basis for the Court’s
determination of the appropriate and lawful sentence.”  The
court denied a motion for rehearing filed by Antieau. 

    Antieau petitioned the Arizona Supreme Court for review
of the PCR court’s denial of relief.  This petition was
consolidated with Runningeagle’s direct appeal, which was
also filed by Antieau.  On April 20, 1993, the Arizona
Supreme Court affirmed Runningeagle’s conviction and
sentence and the denial of his PCR petition.  It reasoned that,
“[b]ecause Runningeagle failed to show that counsel’s
conduct was deficient, the trial court properly dismissed his
petition for post-conviction relief.” 

C. Subsequent Proceedings

    After the United States Supreme Court denied certiorari
and the Arizona Supreme Court issued its mandate,
Runningeagle initiated pro se a second PCR proceeding,
which was ultimately dismissed because he failed to timely
file a petition.  Runningeagle next filed a federal habeas
petition, which was dismissed without prejudice to allow him
to exhaust additional claims in state court. 

    Runningeagle then initiated a third PCR proceeding in the
Arizona Superior Court: this was the state proceeding in
which the claims raised on this appeal were found
procedurally defaulted.  In a 224-page petition filed by a new
attorney, Runningeagle claimed, inter alia, that Iniguez had
performed deficiently by failing to (i) investigate and present
key mitigation evidence; (ii) obtain a competent and
                     RUNNINGEAGLE V. RYAN                            15

independent mental status examination; (iii) develop and
advance a theory that Tilden actually committed the
homicides; and (iv) request the appointment of a second
attorney.  On October 21, 1996, the Superior Court dismissed
Runningeagle’s claims and the petition.  It held that, even if
the mitigation-evidence claims were “colorable,” they were
procedurally defaulted under Arizona Rule of Criminal
Procedure 32.2(a)(3), and the inculpation and second-counsel
claims were in default and, alternatively, not colorable.6 The
Arizona Supreme Court denied Runningeagle’s petition for
review of these rulings. 

    On April 15, 1999, Runningeagle filed the amended
federal habeas petition now before us.  He raised, among
others, claims that Iniguez was ineffective because he failed
to retain, use, and competently prepare independent mental
health experts, or investigate and present mitigating evidence
at sentencing (“mitigation-evidence IAC claim”), inculpate
Tilden (“inculpation IAC claim”), and request a second
counsel (“second-counsel IAC claim”).  On February 6, 2004



    6
        Runningeagle also claimed that Antieau was constitutionally
ineffective on appeal and in PCR proceedings.  The Arizona Superior
Court found this claim precluded, and alternatively dismissed it on the
merits.  We reject, however, the government’s suggestion that this
alternative merits ruling is entitled to AEDPA deference.  Runningeagle
does not on this appeal seek to relitigate a “claim” regarding PCR
counsel’s performance on which basis his habeas petition could be
“granted” (nor could he under current Supreme Court precedent).  See
28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 98 (2011). 
Rather, he seeks to show cause for the procedural default of underlying
trial-level IAC claims on the basis of PCR counsel’s allegedly deficient
performance.  The Superior Court’s ruling cannot possibly be construed
to address this issue, as the equitable rule of Martinez had not yet been
announced in 1996. 
16                   RUNNINGEAGLE V. RYAN

and March 10, 2006, the district court issued interim orders
finding each of these claims procedurally defaulted. 

     The district court denied Runningeagle’s remaining
claims on the merits, and we granted his request for a
certificate of appealability as to several of these claims.  The
Supreme Court decided Martinez on March 20, 2012.  On
July 18, 2012, we filed our opinion affirming the district
court’s rulings on the merits of the claims presented on
appeal.  Also on July 18, 2012, we granted Runningeagle’s
motion for remand to the district court “for the limited
purpose of reconsidering its procedural default holdings on
Runningeagle’s ineffective assistance of counsel claims . . . 
in light of Martinez v. Ryan. ”7 On limited remand, the district
court expanded the record and denied Runningeagle’s request
for a further evidentiary hearing.  On October 2, 2014, the
district court entered an order holding that Runningeagle had
not shown cause under Martinez for the procedural default of
the mitigation-evidence, inculpation, and second-counsel IAC
claims, leaving them in default. 

                     III.  Standard of Review

   We review de novo the district court’s dismissal of a
habeas petition and its procedural default determinations. 
Sexton v. Cozner, 679 F.3d 1150, 1153 (9th Cir.  2012). 
Runningeagle filed his amended federal petition after the

  7
     By granting this motion, we rejected the government’s argument that
Runningeagle had abandoned any request for relief based on ineffective
assistance of PCR counsel.  We similarly reject the government’s
suggestion that we reconsider this ruling.  Cf.  Ball v. Rodgers, 492 F.3d
1094, 1102 (9th Cir.  2007) (discussing the “exception to the waiver rule
. . .  for intervening changes in the law”) (ellipsis in original) (citation
omitted); 9th Cir.  R. 27-10(a)(3). 
                     RUNNINGEAGLE V. RYAN                            17

effective date of the Antiterrorism and Effective Dealth
Penalty Act of 1996 (AEDPA).  Runningeagle II, 686 F.3d at
766.  Therefore, any claim that was adjudicated on the merits
in state court is reviewed under the “highly deferential
standards” of AEDPA.  Davis v. Ayala, 135 S. Ct.  2187, 2198
(2015); see 28 U.S.C. § 2254(d).  Any federally reviewable
claim that was not adjudicated on the merits in state court is
reviewed de novo.  See Cone v. Bell, 556 U.S. 449, 472
(2009). 

                          IV.  Discussion

A. The Legal Framework of Martinez. 

    Federal courts generally cannot grant habeas relief for a
claim defaulted in state court “pursuant to an independent and
adequate state procedural rule . . .  unless the prisoner can
demonstrate cause for the default and actual prejudice as a
result of the alleged violation of federal law.”  Coleman v.
Thompson, 501 U.S. 722, 750 (1991).8 The constitutionally
ineffective performance of counsel, which is “imputed to the
State,” may provide cause, but there is no general
constitutional right to an attorney in PCR proceedings.  Id. at
752–54.  The Supreme Court in Coleman left unanswered the
question of whether and under what circumstances there may
be a constitutional right to counsel where “state collateral
review is the first place a prisoner can present a challenge to
his conviction.”  Id. at 755. 




 8
   Procedural default may also be excused where “failure to consider the
claim[] will result in a fundamental miscarriage of justice.”  Coleman,
501 U.S. at 750.  Runningeagle does not argue that this exception applies. 
18                RUNNINGEAGLE V. RYAN

     Without answering that question, the Martinez Court held
that cause may be established for a prisoner’s procedural
default of a claim of ineffective assistance at trial by
“[i]nadequate assistance of counsel at initial-review collateral
proceedings,” i.e., “collateral proceedings which provide the
first occasion to raise a claim of ineffective assistance of at
trial.”  132 S. Ct.  at 1315.  Martinez stated that this “narrow
exception” to Coleman was an “equitable” one, necessary
because:

       When an attorney errs in initial-review
       collateral proceedings, it is likely that no state
       court at any level will hear the prisoner’s
       claim. . . .  And if counsel’s errors in an
       initial-review collateral proceeding do not
       establish cause to excuse the procedural
       default in a federal habeas proceeding, no
       court will review the prisoner’s claims. 

       ....

       Without the help of an adequate attorney, a
       prisoner will have . . .  difficulties vindicating
       a substantial ineffective-assistance-of-trial-
       counsel claim.  Claims of ineffective
       assistance at trial often require investigative
       work and an understanding of trial strategy. 
       When the issue cannot be raised on direct
       review, moreover, a prisoner asserting an
       ineffective-assistance-of-trial-counsel claim in
       an initial-review collateral proceeding cannot
       rely on a court opinion or the prior work of an
       attorney addressing that claim.  To present a
       claim of ineffective assistance at trial in
                 RUNNINGEAGLE V. RYAN                      19

       accordance with the State’s procedures, then,
       a prisoner likely needs an effective attorney. 

Id. at 1315–18 (citations omitted).  In Trevino v. Thaler,
133 S. Ct.  1911 (2013), the Supreme Court summarized the
four-part test announced in Martinez:

       Coleman [contains] an exception, allowing a
       federal habeas court to find “cause,” thereby
       excusing a defendant’s procedural default,
       where (1) the claim of “ineffective assistance
       of trial counsel” was a “substantial” claim;
       (2) the “cause” consisted of there being “no
       counsel” or only “ineffective” counsel during
       the state collateral review proceeding; (3) the
       state collateral review proceeding was the
       “initial” review proceeding in respect to
       the “ineffective-assistance-of-trial-counsel
       claim”; and (4) state law requires that an
       “ineffective assistance of trial counsel [claim]
       . . .  be raised in an initial-review collateral
       proceeding.” 

Id. at 1918 (second and third alterations in original) (citing
Martinez, 132 S. Ct.  at 1318–19, 1320–21). 

    The government does not dispute that the third Martinez
requirement is satisfied: Runningeagle seeks to show cause
based on Antieau’s supposedly deficient representation
during his initial PCR proceeding.  We address the remaining
requirements in turn. 
20                RUNNINGEAGLE V. RYAN

B. Arizona Law Required Prisoners to Raise IAC Claims in
   Initial-Review Collateral Proceedings During the
   Relevant Time Period. 

    We consider at the outset what Arizona law required to
assert an IAC claim at the time Runningeagle brought his
appeal and first petition for post-conviction relief.  This is an
appropriate place to begin, because however deficient or
prejudicial the performance of trial or PCR counsel, cause
may be shown under Martinez only if, “under state law,
claims of ineffective assistance of trial counsel must be raised
in an initial-review collateral proceeding.”  132 S. Ct.  at
1320.  The Supreme Court explained in Trevino that this
requirement could be satisfied where state law did not
explicitly require petitioners to assert IAC claims in initial-
review collateral proceedings, but “[t]he structure and design
of the [state] system in actual operation . . .  make it virtually
impossible for an ineffective assistance claim to be presented
on direct review.”  133 S. Ct.  at 1915 (citation omitted). 

    The district court held that, at the time Runningeagle
brought his appeal and first petition for post-conviction relief,
Arizona law provided for direct appellate review of IAC
claims.  The district court found that Runningeagle, through
Antieau, in fact raised IAC claims in the PCR proceeding,
“and then consolidated those claims with the other issues
raised on appeal.”  It concluded that this consolidation
procedure was the functional equivalent of “providing direct
appellate review of ineffectiveness claims.”  Accordingly, the
district court held that the procedural default of
Runningeagle’s claims could not be excused under Martinez. 

   Arizona did not expressly require IAC claims to be raised
in collateral proceedings until 2002, when the Arizona
                      RUNNINGEAGLE V. RYAN                              21

Supreme Court decided State v. Spreitz, 39 P.3d 525 (Ariz.
2002).9 Runningeagle filed his supplemental PCR petition
and appeal in 1990 and 1991, respectively, before Spreitz
became law.  However, at this time, the “structure and
design” of Arizona law as set forth by the Arizona Supreme
Court made the meaningful presentation of an IAC claim on
direct review “virtually impossible.”  See Trevino, 133 S. Ct. 
at 1915 (citation omitted). 

    In State v. Valdez, 770 P.2d 313 (Ariz. 1989), the Arizona
Supreme Court strongly urged defendants to raise IAC claims
in petitions brought under Arizona Rule of Criminal
Procedure 32, which governs PCR proceedings.  Id. at 319. 
The Court stated that it was “reluctant” to decide IAC claims
without the benefit of an evidentiary record that could not be
developed in direct appellate proceedings.  Id. at 318.  The
Court set forth its recommended procedure: “[a]s a general
matter,” a defendant who seeks to raise an IAC claim during
the pendency of his direct appeal “should file the proper
petition under Rule 32 . . .  in the trial court and seek an order
from the appellate court suspending the appeal.”  Id. at 319. 
The trial court could then make an evidentiary record and
issue its ruling, and after that, the defendant could move for
consolidation of the post-conviction proceedings and the
direct appeal.10 Id. The Arizona court system followed the


 9
    Martinez, which was also brought by a petitioner in the custody of the
State of Arizona, cited Spreitz for the proposition that “Arizona law . . . 
did not permit [Martinez’s appellate counsel] to argue on direct appeal that
trial counsel was ineffective.”  Martinez, 132 S. Ct.  at 1314. 
 10
    In Krone v. Hotham, 890 P.2d 1149 (Ariz. 1995), which was decided
after Runningeagle filed his first PCR petition and appeal, the Arizona
Supreme Court retreated from the Valdez procedure of staying appeals
pending the resolution of Rule 32 proceedings.  Krone stated that this
22                   RUNNINGEAGLE V. RYAN

Valdez procedure when it decided Runningeagle’s claims:
Antieau raised IAC claims in a Rule 32 proceeding, and the
Arizona Supreme Court stayed his direct appeal pending that
proceeding, and then consolidated them for appellate review. 

    In State v. Carver, 771 P.2d 1382 (Ariz. 1989), which was
decided shortly after Valdez, the Arizona Supreme Court
held: “We will not reverse a conviction on ineffective
assistance of counsel grounds on direct appeal absent a
separate evidentiary hearing concerning counsel’s actions or
inactions.  Only where we may clearly determine from the
record that the ineffective assistance claim is meritless will
we elect to consider the issue on direct appeal.”  Id. at 1390.11

    Valdez and Carver rendered it all but futile for an Arizona
criminal defendant to raise an IAC claim on direct appeal.12
At best, he would be required to raise it again by Rule 32
petition.  At worst, the claim would be deemed clearly
meritless and denied without any further development of the
record.  As in Trevino, there is no principled reason why


procedure had “proved unworkable and resulted in long delays,” and
thereafter would be followed only in “the most exceptional
circumstances.”  Id. at 1151–52. 
 11
   Carver’s holding was reiterated in State v. Atwood, 832 P.2d 593, 616
(Ariz. 1992), which was decided after Runningeagle brought his appeal
and first petition for post-conviction relief, and before the Arizona
Supreme Court affirmed Runningeagle’s conviction and sentence and the
denial of his PCR petition. 
 12
   We express no opinion as to whether, before Valdez and Carver were
decided, Arizona law effectively required petitioners to bring IAC claims
in initial-review collateral proceedings.  Cf.  Lambright v. Stewart,
241 F.3d 1201, 1203 (9th Cir.  2001) (stating that, as of 1984, no Arizona
case required IAC claims to be brought on direct appeal). 
                  RUNNINGEAGLE V. RYAN                      23

federal law should “deny defendants the benefit of Martinez
solely because of the existence of a theoretically available
procedure, namely direct appellate review,” which is
“difficult, and in the typical case all but impossible, to use
successfully, and which [Arizona] courts so strongly
discourage defendants from using.”  133 S. Ct.  at 1920. 

     The district court found that Trevino did not apply
because the Valdez procedure of staying the direct appeal and
consolidating it with the Rule 32 proceeding in effect
provided “direct appellate review of ineffectiveness claims.” 
However, this consolidation was merely ministerial.  Under
Valdez, direct appeals and Rule 32 petitions remained on
separate tracks, though they ultimately converged at the same
station.  Crucially, that convergence would occur after PCR
counsel had raised the issues for review and developed the
evidentiary record before the PCR court.  The Arizona
appellate court would concurrently review the direct appeal
and the denial of the PCR petition, as it did in this case, but
this is not the same as reviewing the petition in the first
instance.  See Runningeagle I, 859 P.2d at 171.  Martinez
makes clear that an appeal from an initial-review collateral
proceeding is distinct from the initial-review collateral
proceeding itself; the equitable excuse applies only to the
latter.  132 S. Ct.  at 1320. 

    Consolidation did not alter the result that, by “structure
and design,” the Arizona system in actual operation made it
“‘virtually impossible’ for an ineffective assistance claim to
be presented on direct review.”  Trevino, 133 S. Ct.  at 1915
(citation omitted).  The Arizona system therefore posed the
grave risk with which Martinez is concerned: that PCR
counsel would fail to raise or develop substantial trial-level
IAC claims, and, because PCR counsel’s performance is not
24                RUNNINGEAGLE V. RYAN

constitutionally reviewable, any deficiency in this regard
would result in “no court . . .  review[ing] the prisoner’s
claims.”  Martinez, 132 S. Ct.  at 1316.  The equitable rules of
Martinez and Trevino prevent this inequitable result. 

    Thus, during the period Runningeagle was litigating his
direct appeal and Rule 32 petition, Arizona law in effect
required the assertion of IAC claims in the initial-review
collateral proceeding.  The district court erred in holding
otherwise. 

C. Runningeagle Fails to Demonstrate the Prejudicial
   Default of a Substantial IAC Claim in PCR Proceedings. 

    Where, as here, the state criminal justice system satisfies
the characteristics required by Martinez, the petitioner must
make two related showings about the strength of his
particular IAC claim to excuse its default. 

    First, the IAC claim must be “a substantial one, which is
to say that the prisoner must demonstrate that the claim has
some merit.”  Martinez, 132 S. Ct.  at 1318.  Thus, there must
be a substantial showing of a “reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different.”  See Strickland v.
Washington, 466 U.S. 668, 694 (1984). “ A reasonable
probability is a probability sufficient to undermine confidence
in the outcome.”  Id. “When a defendant challenges a death
sentence such as the one at issue in this case, the question is
whether there is a reasonable probability that, absent the
errors, the sentencer . . .  would have concluded that the
balance of aggravating and mitigating circumstances did not
warrant death.”  Id. at 695. 
                      RUNNINGEAGLE V. RYAN                              25

    Second, a petitioner must show that “appointed counsel
in the initial-review collateral proceeding, where the claim
should have been raised, was ineffective under the standards
of Strickland v. Washington.”  Martinez, 132 S. Ct.  at 1318. 
Construing Martinez, we have held that, to fulfill this
requirement, a petitioner must show not only that PCR
counsel performed deficiently, but also that this prejudiced
the petitioner, i.e., that “there was a reasonable probability
that, absent the deficient performance, the result of the post-
conviction proceedings would have been different.”  Pizzuto
v. Ramirez, 783 F.3d 1171, 1178 (9th Cir.  2015) (quoting
Clabourne v. Ryan, 745 F.3d 362, 367 (9th Cir.),  proceedings
suspended and mandate stayed (Apr. 2, 2014), and overruled
on other grounds by McKinney v. Ryan, 813 F.3d 798, 818
(9th Cir.  2015) (en banc)).  Although the prejudice at issue is
that in PCR proceedings, this is a recursive standard.  It
requires the reviewing court to assess trial counsel’s as well
as PCR counsel’s performance.  This is because, for us to find
a reasonable probability that PCR counsel prejudiced a
petitioner by failing to raise a trial-level IAC claim, we must
also find a reasonable probability that the trial-level IAC
claim would have succeeded had it been raised.13


  13
     Runningeagle criticizes the Clabourne and Pizzuto framework for
assessing prejudice, which he contends is inconsistent with Martinez and
our en banc opinion in Dickens v. Ryan, 740 F.3d 1302 (9th Cir.  2014). 
He argues that this framework is “impossible-to-meet,” in that it requires
a petitioner to “prove the merits of his ineffective assistance claim before
any evidentiary development of the defaulted, undecided claim just to
clear the cause-and-prejudice hurdle to excuse the claim’s procedural
default.”  See Detrich v. Ryan, 740 F.3d 1237, 1245–46 (9th Cir.  2013) (en
banc) (plurality opinion) (stating that a prisoner “need not show actual
prejudice resulting from his PCR counsel’s deficient performance, over
and above his required showing that the trial-counsel IAC claim [is]
‘substantial’ under the first Martinez requirement”). 
26                    RUNNINGEAGLE V. RYAN

    None of Runningeagle’s procedurally defaulted IAC
claims satisfies both the substantiality and deficient
performance criteria.  Therefore, the procedural default of
these claims is unexcused. 

      1.  The Mitigation-Evidence IAC Claim

    We assume, for discussion purposes only, that the
mitigation-evidence IAC claim, Runningeagle’s strongest
claim, is a “substantial” one, and therefore that there is “some
merit” to the contention that Iniguez performed deficiently
and to Runningeagle’s prejudice at sentencing.14


     We decline to revisit the Clabourne/Pizzuto standard.  Assuming
“substantial” claims and deficient performance of PCR counsel,
Runningeagle could not ultimately obtain relief even under his preferred
standard.  Once default was excused, he would still need to prevail on the
merits of the claim itself, which he is unable to do on any of his three
claims.  Runningeagle has had the opportunity to fully develop in the
district court the evidentiary basis for his procedurally defaulted IAC
claims.  Under these circumstances, there is no meaningful difference
between finding a claim in default and reviving it but denying it on its
merits.  There was no reasonable probability that PCR proceedings would
have reached a different result if PCR counsel had raised the defaulted
claim.  Thus, were we to find cause for default under the Detrich
plurality’s proposed standard, we would still deny the revived claim on its
merits, because there was no reasonable probability that trial and
sentencing proceedings would have had a different result if trial counsel
had performed effectively. 
     14
      Martinez suggests, via a “Cf.”  citation to Miller-El v. Cockrell,
537 U.S. 322 (2003), that the substantiality standard is comparable to the
standard for a certificate of appealability to issue under 28 U.S.C.
§ 2253(c)(2).  Martinez, 132 S. Ct.  at 1318–19.  Under this permissive
standard, a petitioner need show only that “jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.”  Miller-El, 537 U.S. at 327. 
                  RUNNINGEAGLE V. RYAN                        27

        a. Antieau’s Performance Was Not Deficient. 

    Under Martinez’s recursive framework, the next step is to
evaluate PCR counsel’s performance and its effect. 
Runningeagle contends that PCR counsel, Antieau, was
ineffective for failing to investigate the failure to investigate
by his predecessor, trial counsel Iniguez. 

    There is little record evidence, one way or the other,
bearing on whether Antieau’s performance in PCR
proceedings was reasonable “under prevailing professional
norms.”  Strickland, 466 U.S. at 688.  First, Durand, the
investigator appointed to assist Antieau in the PCR
proceedings, declared in 2013 that Antieau was
“overwhelmed by the case,” was “not always prepared,” and
“did not perform adequately or appropriately”; that Durand
“suspected that he had poly-substance abuse issues, including
a problem with alcohol”; and that she did not recall “doing
any investigative work on either the trial or sentencing
portions of Runningeagle’s case.”             This equivocal
declaration, signed more than 20 years after the fact, does not
establish ineffective performance.  Durand declared that she
did not remember performing investigative work, not that she
did not perform it.  One of Antieau’s contemporaneous filings
in the PCR proceedings, which stated that Durand had “not
yet completed her work,” undercuts her recollection. 

     Second, Runningeagle faults Antieau for failing to
provide Dr. Bendheim, the mental health expert appointed in
PCR proceedings, with materials outside the trial record.  But
it is not necessarily ineffective to tailor one’s investigations
to limitations of time and money, see id. at 681, and, given
Dr. Bendheim’s preliminary impression that the appropriate
diagnosis for Runningeagle could have been the same as that
28                RUNNINGEAGLE V. RYAN

of his co-defendant, who received a life sentence,
Runningeagle does not show that Antieau’s pursuit of this
lead and forbearance of others was a prejudicial strategic
choice at the time. 

    Third, Runningeagle suggests that, had Antieau framed
his request for additional funding for Dr. Bendheim
differently, he likely would have received it.  This is both
speculative, and smacks of the judgment in hindsight
forbidden by Strickland, id. at 680.                   Moreover,
Runningeagle’s prognostication of what likely would have
occurred is contradicted by the PCR court’s statement that
“Petitioner . . .  has taken one aspect of the Court’s sentencing
as if it were the only basis for the Court’s determination of
the appropriate and lawful sentence.” 

    Finally, Runningeagle observes that the bulk of the claims
Antieau raised in his supplemental PCR petition were
dismissed for being raisable on direct appeal.  This, too,
smacks of hindsight, and does not speak to whether capable
PCR counsel would have expected this outcome or whether
it was typical of Arizona PCR proceedings at the relevant
time. 

    Given the “highly deferential” standard under which we
evaluate Antieau’s performance, and the paucity of evidence
that Antieau performed deficiently—which Runningeagle had
a full opportunity to develop in district court following our
limited remand—Runningeagle fails to overcome the “strong
presumption that counsel’s conduct falls within the wide
                      RUNNINGEAGLE V. RYAN                               29

range of reasonable professional assistance. ”15 Id. at 689
(citation omitted).  Runningeagle therefore cannot show cause
to excuse the default of the mitigation-evidence IAC claim
under Martinez.  See Martinez, 132 S. Ct.  at 1318. 

         b. Antieau’s Failure to Raise the Mitigation-
            Evidence IAC Claim in PCR Proceedings Was
            Not Prejudicial. 

    Even if we were to conclude that Antieau’s alleged failure
to investigate and present the mitigation-evidence IAC claim
in PCR proceedings was deficient, this claim would
nevertheless fail for lack of a showing of prejudice. 
Similarly, to pretermit a lengthy and ultimately fruitless
discussion of what Iniguez did and did not do during his
representation of Runningeagle, others’ observations and
recollections of Iniguez, and appropriate sentencing strategies

  15
     It is not necessary here to delineate precisely what PCR counsel’s
duties are, and how they are similar to or different from those of trial or
appellate counsel.  Martinez contemplates that effective PCR counsel may
investigate “evidence outside the trial record” to determine whether a trial-
level IAC claim may be raised, 132 S. Ct.  at 1318, but Martinez is silent
as to the scope of the duty to investigate in PCR proceedings.  The
effectiveness of PCR counsel is evaluated “under the standards of
Strickland,” id., but before Martinez there was no occasion to apply
Strickland’s constitutional standard in the PCR setting, where there is no
established constitutional right to counsel.  Strickland is crystal-clear,
however, that effective performance is measured not by reference to any
“set of detailed rules,” but rather by assessing “the reasonableness of
counsel’s challenged conduct on the facts of the particular case, viewed
as of the time of counsel’s conduct.”  466 U.S. at 688–90.  Even if we
accept Runningeagle’s contention that PCR counsel has a broad duty to
investigate and preserve potentially meritorious trial-level IAC claims,
Runningeagle simply does not carry his burden to show that Antieau
“made errors so serious that [he] was not functioning as . . . ‘ counsel.’” 
Id. at 687. 
30                RUNNINGEAGLE V. RYAN

and sources of standards of care, we assume arguendo that
Iniguez’s investigation and presentation of mitigation
evidence was deficient for purposes of Strickland.  See
Strickland, 466 U.S. at 697 (“The object of an ineffectiveness
claim is not to grade counsel’s performance.  If it is easier to
dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice . . .  that course should be followed.”). 

    Runningeagle contends that Iniguez prejudiced his
defense during the penalty phase by failing to investigate or
present key mitigation evidence.  Runningeagle identifies
several areas of his life that he argues Iniguez left
unexplored: his difficult early childhood; his social and
educational history; his medical background; his use of
alcohol; the effect of his Native American heritage on his
behavior and demeanor; and mental health evidence that he
claims invalidates the diagnosis of antisocial personality
disorder and may support a diagnosis of Post-Traumatic
Stress Disorder (“PTSD”).  Runningeagle also faults Iniguez
for mishandling the request of expert reports under Rule 26.5,
and failing to provide Doctors Bayless and Enos and the
probation officers with the evidence Iniguez allegedly would
have uncovered had he adequately investigated these areas. 

           i. Much of Runningeagle’s Newly Offered
              Evidence Is Cumulative. 

    Iniguez examined or cross-examined a number of
Runningeagle’s family members and acquaintances at
evidentiary hearings, and solicited 15 letters on his behalf. 
This testimony and evidence detailed Runningeagle’s
childhood circumstances, including his mother’s alcoholism,
his social and educational history, and his medical problems
as a child.  The PSRs also described Runningeagle’s troubled
                     RUNNINGEAGLE V. RYAN                              31

family background, criminal history, peripatetic education
and social circumstances, and history of childhood illness and
injury.16 The sentencing court considered these materials
when it decided which sentence to impose. 

    The pertinent new evidence that Runningeagle offers
includes the declarations of family members, classmates, ex-
girlfriends, and the parents of one ex-girlfriend; and medical,
educational, and juvenile records.  This evidence does not
materially expand upon what was already before the
sentencing court.  For instance, it is troubling to learn that, as
a child, Runningeagle lived in a squalid house, surrounded by
adults with substance abuse problems, who offered little
nurturing; that he frequently observed violence among family
members; and that he was sometimes so hungry, he would eat
Vitamin C tablets.  But this information does not alter the
sentencing profile that was before the court.  This included
the letters, live testimony, and PSR that described “a great
deal of dysfunction in the family,” a house with “very little
furniture and household provisions,” in which there was
frequently “no food,” and circumstances that led
Runningeagle’s probation officer to be “tempted on more


   16
       Runningeagle contends the PSRs were “largely erroneous and
incomplete.”  He takes particular issue with the statement in the earlier of
the two reports that “[w]ith the exception of drinking problems on the part
of both his mother and stepfather, the defendant experienced no significant
difficulties during his youth.”  However, the second PSR contradicted the
first, and provided several examples of Runningeagle’s childhood
struggles.  The second PSR stated that Runningeagle himself denied
having “any dysfunction in his family,” and that the new and troubling
information, which was “contrary to the defendant’s statement,” came
from his juvenile probation officer.  Cf.  Strickland, 466 U.S. at 691
(“[W]hat investigation decisions are reasonable depends critically on”
“information supplied by the defendant.”). 
32               RUNNINGEAGLE V. RYAN

than one occasion to contact Child Protective Services.” 
Additional details about Runningeagle’s childhood sicknesses
and injuries, or the vouchings of more remote acquaintances,
likewise would not have affected the balance of mitigating
against aggravating circumstances.  See Strickland, 466 U.S.
at 695; see also Bobby v. Van Hook, 558 U.S. 4, 11–12
(2009). 

    Runningeagle also argues that Iniguez did not properly
investigate or present mitigation evidence regarding his use
of alcohol.  However, the court was aware that Runningeagle
was intoxicated at the time of the murders.  The presentence
reports and Dr. Enos’s report each made reference to
Runningeagle’s problems with alcohol.  Further, Iniguez’s
sentencing memorandum argued that Runningeagle’s alcohol
use was a basis for leniency, and referred to trial evidence
that, on the night of the murders, Runningeagle had been
“drinking a powerful intoxicating liquor called Jungle Juice
which is supposedly a mixture of Everclear and fruit juices. 
There is also evidence that defendant was drinking beer as
well.”  Once again, the new evidence Runningeagle offers as
to this issue is cumulative, and does not create a reasonable
probability that the sentencer would have differently balanced
aggravating and mitigating circumstances.  Strickland,
466 U.S. at 695. 

           ii.  The New Mental Health and Cultural
               Evidence Is Equivocal. 

    The only new evidence offered by Runningeagle that does
not merely elaborate upon what was already in the record
concerns his mental health and the effect of his Native
American cultural background on his manner of expressing
himself.  This evidence consists of (1) a 13-paragraph
                 RUNNINGEAGLE V. RYAN                     33

declaration of psychologist Katherine DiFrancesca, dated
August 20, 1996; (2) a 44-page report prepared by forensic
psychologist Charles Harris Heller, dated July 17, 2006; and
(3) a two-page, unsworn letter from psychiatric consultant
Pablo Stewart to Runningeagle’s habeas counsel, dated
January 22, 2013.  As the district court correctly concluded,
this evidence is “equivocal” at best, and is insufficient to
demonstrate Strickland prejudice. 

    Dr. DiFrancesca’s affidavit was based on two personal
meetings with Runningeagle, the Enos, Bayless, and Martig
reports, juvenile and medical records, and social history
information.  Dr. DiFrancesca opined that Runningeagle was
an alcoholic, suffered from “psychological and mental
disorders resulting from his alcoholism,” and had a
conscience, and that the diagnosis of antisocial personality
disorder was likely incorrect.  She further opined that
Runningeagle did not show his emotions publicly, including
at his court proceedings, because he was raised within Native
American culture, but that he felt “genuine remorse and
shame” for the killings.  Dr. DiFrancesca gave no affirmative
diagnosis. 

    Dr. Heller’s report was based upon a forensic examination
of Runningeagle, his review of a variety of records, and his
expertise in Native American mental health and culture,
which he developed while providing mental health services
to the Cherokee Nation of Oklahoma.  Dr. Heller opined that
Runningeagle had “severe alcoholism,” as well as “indicators
of post-traumatic stress which are unique to his childhood as
a Native American child in Phoenix and . . .  multiple
traumatic experiences.”  Dr. Heller suggested that Dr. Bayless
and Dr. Enos had wrongly diagnosed Runningeagle with
antisocial personality disorder, because clinicians most
34                   RUNNINGEAGLE V. RYAN

familiar with Caucasian patients tend to misdiagnose Native
Americans and fail to perceive symptoms of stress and
anxiety.  However, Dr. Heller found that Runningeagle “does
not meet full criteria for PTSD,” although he criticized these
“classical” criteria as they applied within the chronically
stressful environment encountered by many Native
Americans.  Dr. Heller opined that “the likely reason why
[Runningeagle] fails to meet full diagnostic criteria for PTSD
is because he tends to minimize his symptoms in order to
adhere to his false sense of self.”  Dr. Heller diagnosed
Runningeagle with “an anxiety disorder not otherwise
specified with PTSD features.” 

    Dr. Stewart wrote that he interviewed Runningeagle for
five hours, and had reviewed “a variety of social history
documents including trial court proceedings, witness
declarations, medical-mental health-school records, custodial
records and the psychological evaluation of Dr. Heller dated
July 17, 2006.”  He opined “to a reasonable degree of medical
certainty[] that Mr. Runningeagle currently suffers from
Posttraumatic Stress Disorder and that he suffered from this
condition at the time of the offenses for which he has been
sentenced to death.”  Dr. Stewart also speculated that
Runningeagle may have suffered from Autistic Spectrum
Disorder, Major Depressive Disorder, and Substance-Related
Disorder at the time of the killings, but that further evaluation
was needed as to these conditions.17

   Runningeagle argues that, had Iniguez provided capable
mental health professionals with complete records, along with


 17
    Although Stewart’s letter referred to an imminent diagnostic visit with
Runningeagle scheduled for February 4, 2013, as of October 2, 2014, the
district court had not received any evidence of further tests. 
                  RUNNINGEAGLE V. RYAN                       35

supporting expert analysis of his Native American cultural
expression, the experts would have produced reports that
looked more like the newly submitted materials than the Enos
and Bayless reports, which Runningeagle contends should
never have been presented to the sentencing court.  These
arguments are not persuasive. 

    First, the sentencing court stated expressly that, although
it did not treat the Bayless and Enos reports as sufficient
mitigating evidence, it also did not “use[] the information or
the conclusions in these reports as aggravating
circumstances.”  Thus, had Iniguez successfully excluded
these reports, Runningeagle’s balance of mitigating and
aggravating circumstances would have remained the same,
according to the sentencing judge. 

    Second, while the court remarked at the sentencing
hearing and in its special verdict that Runningeagle had not
shown empathy for the victims, and displayed little emotion
for his family and friends, this was not the basis for its
sentence.  On the day of the sentencing hearing, the court
observed that Runningeagle had “expressed some feelings
towards his family or friends,” but this did not change its
conclusions.  The court focused not on Runningeagle’s
apparent lack of affect, but on the thrill he apparently derived
from committing the crimes, including the murders.  Doctors
DiFrancesca and Heller explained why people raised within
a Native American culture might suppress negative emotions,
downplay family conflict, or poke fun at themselves, but
there was no evidence that the laughter, joy, and boasting
following the murders was a shared form of cultural
expression in response to heinous acts rather than an
36                  RUNNINGEAGLE V. RYAN

expression personal to Runningeagle.18 Thus, it is speculative
to suggest that expert testimony about Native American
culture would have altered Runningeagle’s sentence. 

     Finally, even if there was some set of steps Iniguez should
have taken that would have led his mental health experts to
produce reports more like Doctors DiFrancesca’s, Heller’s,
and Stewart’s—a speculative and hindsight-plagued
assumption—these reports are not of material mitigating
weight.  Dr. DiFrancesca gave no affirmative diagnosis.  Dr.
Heller used qualifying language, and concluded that
Runningeagle did not meet the full diagnostic criteria for
PTSD.  Dr. Stewart, who projected the greatest certainty in
his diagnosis, produced it more than 20 years after the crimes
were committed, and provided no supporting analysis.  Our
precedent asks us to examine whether “the difference
between the evidence that could have been presented and that
which actually was presented is sufficient to ‘undermine
confidence in the outcome’ of the proceeding.”  Duncan v.
Ornoski, 528 F.3d 1222, 1240 (9th Cir.  2008) (quoting
Strickland, 466 U.S. at 694).  Runningeagle fails to
demonstrate Strickland prejudice under this standard.  See
Leavitt v. Arave, 646 F.3d 605, 614 (9th Cir.  2011) (“Such
[diagnostic] opinions, which couch results in tentative
language, are simply not enough to show prejudice.”); 
Rhoades v. Henry, 638 F.3d 1027, 1050 (9th Cir.  2011)
(“Speculation about potential brain dysfunctions or disorders
‘is not sufficient to establish prejudice.’”) ( citation omitted);
cf.  id. (“The mitigating value of [Dr. Pablo] Stewart’s most


 18
   The sentencing court noted that Tilden, whom Runningeagle concedes
came from an “almost identical background[],” did not display the same
positive “degree of relishing” as Runningeagle, and showed remorse and
emotion. 
                  RUNNINGEAGLE V. RYAN                       37

concrete assessment, that Rhoades ‘does suffer’ from
Post-traumatic Stress Disorder (PTSD), is lessened because
his diagnosis admittedly does not satisfy the requirements of
DSM–IV for this condition.”). 

    There is no “reasonable probability” that, had Iniguez
presented the new evidence, separately or collectively, “the
sentencer . . .  would have concluded that the balance of
aggravating and mitigating circumstances did not warrant
death.”  Strickland, 466 U.S. at 695.  Therefore, even
assuming deficient performance by Antieau and Iniguez,
Runningeagle cannot show cause for the default of the
mitigation-evidence IAC claim.  Martinez, 132 S. Ct.  at 1318;
Pizzuto, 783 F.3d at 1178. 

   2.  The Inculpation IAC Claim

    At trial, “Runningeagle’s defense rested on the theory that
the state failed to meet its burden of proof.”  Runningeagle II,
686 F.3d at 777.  Runningeagle contends that this strategy
was objectively unreasonable, and Iniguez should have
argued at trial and sentencing that Tilden was the one who
killed the Williamses, and that he was the “leader” of the
group on the night of the murders.  Runningeagle fails to
show that this was a substantial IAC claim, much less that
Antieau performed deficiently or prejudicially by failing to
raise it in PCR proceedings. 

    No record or extra-record evidence supports the theory
that Tilden personally killed either victim.  Although it is true
that the government’s case against Runningeagle relied
primarily on circumstantial evidence, the evidence that
Runningeagle—not Tilden—stabbed the Williamses to death
38                    RUNNINGEAGLE V. RYAN

was overwhelming.19 Runningeagle’s theory that Tilden
could have been the killer is based on Orva Antone’s
testimony that he witnessed Tilden striking Mrs. Williams in
the head with a flashlight, and the testimony of a medical
expert, Dr. George Bolduc, on cross-examination that these
“blunt force injuries of the head could have been of a fatal
nature.”  However, Dr. Bolduc consistently testified that Mrs.
Williams’s death was caused by a perforated heart, liver, and
aorta, due to stab wounds through the chest and abdomen.  In
context, Dr. Bolduc’s description of the blunt force injuries
as potentially “fatal” meant that they could have caused death
but for the intervening stab wounds, not that the head trauma
could have been the actual cause of death. 



 19
      As we summarized this evidence previously:

          [T]he police found Runningeagle’s palm print on the
          clothes dryer next to the victims’ bodies and matched
          Runningeagle’s shoes with the bloody shoe prints found
          at the house.  Runningeagle discussed the crimes
          several times before his arrest and told his
          girlfriend—who testified at trial, and to whom he
          showed his car trunk full of the property stolen from the
          Williamses—that “he had been in a fight with two
          people and had hit them ‘full-force.’”  When the police
          arrested Runningeagle, they found the Williamses’
          stolen property.  The evidence is even stronger in light
          of Antone’s testimony that Runningeagle taunted and
          threatened the Williamses with his knife, waved the
          knife at them as they retreated, and then broke through
          the Williamses’ door with a tire iron after the
          Williamses tried to get away. 

Runningeagle II, 686 F.3d at 770 (citations omitted); see also
Runningeagle I, 859 P.2d at 174 (“The trial court . . .  found Runningeagle
in fact killed the victims, and we agree.”). 
                    RUNNINGEAGLE V. RYAN                            39

    Runningeagle suggests that Iniguez could have swayed
the judge or jury by uncovering and presenting evidence of
Tilden’s “violent past.”  However, this evidence would have
been inadmissible at trial under Arizona Rule of Evidence
404(a), which prohibits the introduction of propensity
evidence to prove that an individual acted “in conformity
therewith on a particular occasion. ”20 Even if this evidence
could have been presented at sentencing, there is no showing
that it could have possibly led Runningeagle, to whom the
evidence overwhelmingly pointed as the killer, to receive a
reduced sentence.  As we previously concluded, “the trial
court’s detailed Special Verdict makes clear that the likely
result of further inculpation of Tilden was a death sentence
for Tilden and not a life sentence for Runningeagle.” 
Runningeagle II, 686 F.3d at 771–72. 

   Because Runningeagle fails to show that the inculpation
IAC claim was a “substantial” one of “some merit,” the
procedural default of this claim is not excused under
Martinez.  132 S. Ct.  at 1318. 

       3.  The Second-Counsel IAC Claim

    Runningeagle argues that Iniguez provided
constitutionally deficient representation by failing to request
the appointment of second counsel.                Once again,
Runningeagle does not show that this is a substantial IAC
claim for purposes of Martinez. 




  20
     Arizona Rule of Evidence 404 was amended effective November 1,
1988, after trial and before sentencing.  The quoted language appears in
the codification in effect at each time. 
40                RUNNINGEAGLE V. RYAN

    Runningeagle relies on the 1989 ABA Guidelines, which
stated that “[i]n cases where the death penalty is sought, two
qualified attorneys should be assigned to represent the
defendant.”  However, the Supreme Court has stressed that,
while ABA Guidelines may be “evidence of what reasonably
diligent attorneys would do,” they do not define counsel’s
federal constitutional duty to “make objectively reasonable
choices.”  Van Hook, 558 U.S. at 8–9 (citation omitted). 
Further, the Supreme Court has cautioned against the
inference of per se rules of reasonableness from professional
standards “so detailed that they would interfere with the
constitutionally protected independence of counsel and
restrict the wide latitude counsel must have in making tactical
decisions.”  Id. at 8 n.1 (citation omitted).  The 1989
Guidelines are not, standing alone, enough to raise a
substantial IAC claim.  Rather, “[t]rial counsel cannot be said
to be constitutionally ineffective [solely] for deciding not to
bring in co-counsel,” and, to raise a substantial claim,
Runningeagle must present evidence of “some reason . . . 
why the first lawyer is unable to provide adequate
representation.”  Allen v. Woodford, 395 F.3d 979, 998 (9th
Cir.  2005) (alterations in original) (citation omitted). 

    Runningeagle observes that Tilden’s counsel, Steinle, an
experienced capital defense lawyer, obtained second counsel
to assist him.  Runningeagle also presents a September 27,
1988 letter from local counsel to Iniguez offering to assist
with the sentencing hearing.  This letter states that Iniguez
had not returned counsel’s earlier call.  Finally, Newman, the
investigator who interviewed Iniguez in 1994, declared that
Iniguez stated that he felt “overwhelmed” by Runningeagle’s
case. 
                     RUNNINGEAGLE V. RYAN                             41

    Runningeagle makes no freestanding showing of
prejudice caused by any deficient performance, and so he
cannot show that Iniguez performed deficiently by failing to
request the appointment of second counsel.21 Because
Runningeagle’s second-counsel IAC claim is insubstantial, he
fails to show cause to excuse its default under Martinez. 

D. The District Court Did Not Abuse Its Discretion by
   Denying Runningeagle’s Request for an Evidentiary
   Hearing. 

     The district court granted Runningeagle’s motion to
expand the record with a number of the exhibits described
above.  However, it denied Runningeagle’s request for an
evidentiary hearing at which he sought to present live
testimony from Tilden’s counsel, Drs.  Stewart and Heller,
trial defense investigator Gloria Castillo, mitigation fact
witnesses, and experts in mitigation and capital defense.  On
this appeal, Runningeagle contends that, if Martinez cause is
not shown outright, he is entitled to further factual
development in district court. 

 21
    Although we have assumed that Runningeagle’s mitigation-evidence
IAC claim is “substantial,” there is no demonstrated nexus between
Iniguez’s performance during the penalty phase and his lack of co-
counsel.  Even if such a nexus existed, Runningeagle would be unable to
show cause for the default of the second-counsel IAC claim.  As we have
discussed, Antieau’s failure to raise the mitigation-evidence IAC claim in
PCR proceedings was not prejudicial.  Likewise, Runningeagle cannot
show that Antieau’s failure to raise the second-counsel IAC claim was
prejudicial, where the supposed prejudice caused by the underlying
allegedly deficient performance—failure to investigate and properly
present mitigation evidence—is identical.  We reject Runningeagle’s
cumulative error argument, which would require us to accumulate a
number of trial-level IAC claims that we have found insubstantial or
unsuccessful on the merits in this and our prior opinion. 
42                  RUNNINGEAGLE V. RYAN

    We review for an abuse of discretion a district court’s
determination that a petitioner is not entitled to an evidentiary
hearing.22 Hurles v. Ryan, 752 F.3d 768, 777 (9th Cir.),  cert. 
denied, 135 S. Ct.  710 (2014).  Where documentary evidence
provides a sufficient basis to decide a petition, the court is
within its discretion to deny a full hearing.  Phillips v.
Ornoski, 673 F.3d 1168, 1179 (9th Cir.  2012). “ In deciding
whether to grant an evidentiary hearing, a federal court must
consider whether such a hearing could enable an applicant to
prove the petition’s factual allegations, which, if true, would
entitle the applicant to federal habeas relief.”  Schriro v.
Landrigan, 550 U.S. 465, 474 (2007). 

    We conclude that the district court did not abuse its
discretion in denying an evidentiary hearing. “[ O]ral
testimony and cross-examination were not necessary because
the documentary evidence submitted fully presented the
relevant facts.”  Williams v. Woodford, 384 F.3d 567, 591
(9th Cir.  2004).  The expanded record included the
declarations of witnesses who would testify at a live hearing,
and Runningeagle made no showing that their testimony
would differ materially from their declarations.  The
credibility of these witnesses was not at issue, and could not
have rendered their testimony sufficient to show cause under
Martinez. 




     22
      Because Runningeagle sought to present evidence to support a
showing of Martinez cause rather than to support directly a claim raised
in state court, we do not review his request for an evidentiary hearing
under the demanding standard of 28 U.S.C. § 2254(e)(2).  See Dickens,
740 F.3d at 1321. 
                 RUNNINGEAGLE V. RYAN                     43

                      V. Conclusion

    Runningeagle has not shown cause for the procedural
default of his IAC claims, nor has he shown that further
district court proceedings are warranted.  We therefore affirm
the district court’s judgment and order, and its continued
denial of Runningeagle’s habeas petition.  As the Martinez
claims are hereby resolved, we lift the stay of the mandate
imposed by our July 18, 2012 order.  It may issue in the
regular course. 

   AFFIRMED.