                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


DAVID MARTINEZ RAMIREZ,                No. 10-99023
         Petitioner-Appellant,
                                         D.C. No.
              v.                    2:97-cv-01331-JAT

CHARLES RYAN,
         Respondent-Appellee.            OPINION


     Appeal from the United States District Court
              for the District of Arizona
     James A. Teilborg, District Judge, Presiding

       Argued and Submitted January 16, 2019
             San Francisco, California

              Filed September 11, 2019

Before: Sidney R. Thomas, Chief Judge, and Marsha S.
    Berzon and Richard R. Clifton, Circuit Judges.

           Opinion by Chief Judge Thomas;
Partial Concurrence and Partial Dissent by Judge Berzon
2                        RAMIREZ V. RYAN

                            SUMMARY*


                Habeas Corpus / Death Penalty

   The panel affirmed in part and reversed in part the district
court’s denial of David Ramirez’s habeas corpus petition
challenging his Arizona conviction and death sentence for the
murders of his girlfriend and her daughter, and remanded.

    The panel explained that the district court—on remand for
reconsideration of whether post-conviction counsel’s
ineffectiveness constituted cause and prejudice under
Martinez v. Ryan, 566 U.S. 1 (2012), to overcome the
procedural default of Ramirez’s claim of trial counsel’s
ineffectiveness—erred by conducting a full merits review of
the underlying ineffective assistance of counsel claim on an
undeveloped record, rather than addressing whether the claim
was “substantial.” The panel held that the underlying claim
of ineffective assistance of trial counsel was substantial, thus
constituting “prejudice” under Martinez, because trial counsel
failed to present or pursue evidence of Ramirez’s intellectual
disability, failed to provide relevant and potentially
mitigating evidence to the psychologist who evaluated
Ramirez, and subsequently relied on the psychologist’s
report, despite possessing contrary facts. The panel held that
Ramirez established cause under Martinez because had post-
conviction counsel raised the substantial claim of ineffective
assistance of trial counsel, there is a reasonable probability
that the result of the post-conviction proceedings would have
been different.

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

    The panel held that the district court erred in denying
Ramirez evidentiary development of his ineffective assistance
of counsel claim, and that on remand he is entitled to
evidentiary development to litigate the merits of his
ineffective assistance of trial counsel claim.

    The panel held that the district court correctly concluded
that Ramirez’s due process rights under Ake v. Oklahoma,
470 U.S. 68 (1985), were not violated, as Ramirez received
the assistance of an independent psychologist, and there was
no impermissible waiver of self-representation.

   The panel held that the Arizona state courts did not
unconstitutionally apply a causal nexus requirement to
Ramirez’s mitigating evidence in violation of McKinney v.
Ryan, 813 F.3d 798 (9th Cir. 2015).

   The panel declined to expand the certificate of
appealability to include three uncertified issues.

    Dissenting in part, Judge Berzon would grant a certificate
of appealability with regard to Ramirez’s claim under Atkins
v. Virginia, 536 U.S. 304 (2002) (prohibiting the execution of
intellectually disabled persons); hold that the claim relates
back to Ramirez’s ineffective assistance of counsel claim;
and remand to the district court for further proceedings.


                        COUNSEL

Paula K. Harms (argued) and Timothy M. Gabrielsen,
Assistant Federal Public Defenders; Jon M. Sands, Federal
Public Defender; Office of the Federal Public Defender,
Phoenix, Arizona; for Petitioner-Appellant.
4                        RAMIREZ V. RYAN

John P. Todd (argued), Special Assistant Attorney General;
Lacey Stover Gard, Chief Counsel; Mark Brnovich, Attorney
General; Office of the Attorney General, Phoenix, Arizona;
for Respondent-Appellee.


                             OPINION

THOMAS, Chief Judge:

     David Ramirez was convicted by a jury and sentenced to
death by a judge for the 1989 murders of his girlfriend, Mary
Ann Gortarez and her daughter, Candie. Ramirez appeals the
district court’s denial of his petition for writ of habeas corpus,
raising three certified claims and three uncertified claims.
Because Ramirez demonstrated cause and prejudice to
overcome the procedural default of his ineffective assistance
of trial counsel claim, we reverse the judgment of the district
court and remand for the district court to allow evidentiary
development of Ramirez’s ineffective assistance of trial
counsel claim.

    We affirm the district court’s conclusion that Ramirez’s
right to due process under Ake v. Oklahoma, 470 U.S. 68
(1985), was not violated. We also agree that the Arizona
state courts did not improperly exclude mitigating evidence
that lacked a causal connection to his crime. See McKinney
v. Ryan, 813 F.3d 798 (9th Cir. 2015).1 We decline to expand


    1
       After briefing and oral argument of this appeal, the United States
Supreme Court granted certiorari in McKinney v. Arizona, No. 18-1109,
___ U.S. ___ , 2019 WL 936074 (June 10, 2019), to address resentencing
after a capital sentence is vacated due to a causal nexus error. Ramirez
filed a motion for a stay pending the outcome of that case. Ramirez’s
                         RAMIREZ V. RYAN                               5

the certificate of appealability to include the three uncertified
issues raised by Ramirez.

                                    I

    The central question in this appeal is whether the
procedural default of Ramirez’s claim of ineffective
assistance of trial counsel is excused under Martinez v. Ryan,
566 U.S. 1 (2012). Because post conviction counsel, whom
Arizona concedes performed deficiently, failed to raise a
substantial claim of ineffective assistance of trial counsel in
Ramirez’s initial state collateral proceeding, we conclude that
the procedural default is excused. Ramirez has an ineffective
assistance of counsel claim “that has some merit” under
Martinez, 566 U.S. at 14–16, because trial counsel failed to
present or pursue evidence of Ramirez’s intellectual
disability, failed to provide relevant and potentially
mitigating evidence to the psychologist who evaluated
Ramirez, and subsequently relied on the psychologist’s
report, despite possessing contrary facts.

                                   A

    In the early morning hours of May 25, 1989, neighbors
alerted the police after hearing screams and thuds coming
from the Gortarez apartment.2 Officers arrived and observed



motion is DENIED. Because we conclude that the Arizona state courts
did not apply an unconstitutional causal nexus requirement to Ramirez’s
mitigating evidence, no resentencing is required.
    2
      Facts regarding the underlying murders are extensively discussed in
the Arizona Supreme Court case affirming Ramirez’s convictions on
direct appeal. State v. Ramirez, 871 P.2d 237 (Ariz. 1994) (en banc).
6                        RAMIREZ V. RYAN

Ramirez, who appeared to be intoxicated, covered in blood.
Ramirez v. Ryan, No. CV-97-01331-PHX-JAT, 2016 WL
4920284, at *1 (D. Ariz. Sept. 15, 2016). Officers found
Candie’s naked body in a bedroom, and Mary Ann’s body on
the living room floor. Id. Both women had been stabbed
multiple times. Id. Ramirez was charged with two counts of
first degree murder. Id.

    Ramirez was initially represented by counsel, Mara
Siegel, a Maricopa County public defender.3 This case was
Siegel’s first capital assignment, and, as she admitted, she
was unprepared to represent someone “as mentally disturbed”
as Ramirez. Ramirez, through counsel, filed a pretrial motion
for appointment of experts, including psychologists and a
mitigation expert, among others. In the motion, Ramirez
cited Ake and requested the court pay for an independent
psychiatric evaluation, a child psychologist, and a mitigation
expert to assess his sanity at the time of the alleged offense.

    The trial court denied Ramirez’s requests for experts but
appointed an investigator to assist Ramirez. During a
subsequent pre-trial motions hearing, the investigator
explained why a psychologist was important to help
determine Ramirez’s social upbringing and to collaborate
with a mitigation specialist. The trial court expressed
disbelief and confusion at the request for a mitigation
specialist (“I have never heard of that in a quarter century”)
and psychiatrist (“I don’t believe I have ever appointed a


    3
       On October 6, 1989, Ramirez requested to represent himself by
presenting an illegible motion to the court. Ramirez represented himself
for a time, with Siegel as advisory counsel, until he requested she resume
representation after jury selection. Siegel represented Ramirez through
trial and sentencing. Ramirez v. Ryan, 2016 WL 4920284, at *4.
                      RAMIREZ V. RYAN                         7

psychiatrist in my life”), noting that “I don’t think that the
defendant in this case deserves any favors from this Court
because he represents himself. He’s pulling this Court’s leg,
and I’m not impressed by that at all.” Ultimately, the court
agreed to appoint a fingerprint expert and serologist to assist
Ramirez during the guilt phase. No psychologist was
appointed for the merits trial. The case was transferred to a
different judge for trial.

    At trial, only one witness was called on behalf of the
defense. Ramirez did not testify and the jury found him
guilty of two counts of first-degree murder. State v. Ramirez,
871 P.2d at 239, 242.

                               B

    After the jury returned the guilty verdicts, the trial court
appointed a psychologist proposed by Ramirez,
Dr. McMahon, “to test and evaluate the defendant’s current
mental health and, if such is deemed appropriate, conduct
further diagnostic testing and evaluation.” Ramirez v. Ryan,
2016 WL 4920284, at *4. Dr. McMahon met with Ramirez
three times for a total of five hours and reviewed the
documents trial counsel provided. Trial counsel provided
Dr. McMahon with police reports, plea agreements from prior
charges, the public defender’s notes from an interview with
Ramirez, and sentencing orders from two other convictions
of burglary and theft. However, trial counsel did not provide
Dr. McMahon with Ramirez’s school records or IQ scores.
Ultimately, trial counsel’s case for mitigation consisted of a
sentencing memorandum with attachments, and testimony
from three of Ramirez’s family members and two Arizona
Department of Corrections employees who previously
supervised Ramirez. Id. at *5–8.
8                    RAMIREZ V. RYAN

                              1

    The sentencing memorandum highlighted Ramirez’s
ability to adapt in the structured life of prison. Id. at *5–6.
The sentencing memorandum also discussed Ramirez’s
chaotic childhood, school attendance, history of substance
abuse and sexual abuse, gang affiliation, and impaired state
of mind at the time of the murders. Id. It also discussed
Ramirez’s life in prison and early involvement with the
criminal justice system. Dr. McMahon’s report, which was
attached to the sentencing memorandum, detailed Ramirez’s
prior aggravated assault conviction and his work and prison
history.

    The sentencing memorandum asserted that Ramirez’s
ability to appreciate the wrongfulness of his conduct was
substantially impaired, a statutory mitigating circumstance.
Ramirez reported to Dr. McMahon that he had consumed
approximately twelve drinks and shot up with cocaine
multiple times on the evening of the murder, which led
Dr. McMahon to conclude that Ramirez’s ability to
appreciate the wrongfulness of his conduct or conform his
conduct to the law was significantly diminished due to his
psychological condition and drug and alcohol intoxication on
the night of the crimes. Id. at *4–5.

   The sentencing memorandum indicated that Ramirez’s
mother, Maria, was an alcoholic. However, Dr. McMahon’s
report provided the following contradictory observation: that
Maria “never worked, devoting her time as a traditional
Mexican-American mother whose responsibility revolves
around the home and her children.” The report observed that
Ramirez’s mother “was always there for [Ramirez] when he
needed her as he was growing up.” Ramirez told
                        RAMIREZ V. RYAN                             9

Dr. McMahon that several family members had sexually
abused him, but explained that he did not tell his mother
about it because he “was fearful she would become extremely
upset and angry.” In completing his report, Dr. McMahon
did not interview Ramirez’s family members and relied solely
on Ramirez’s self-reporting and the records trial counsel
provided.

    Although the sentencing memorandum noted Ramirez’s
low IQ scores—70 and 77—trial counsel relied on
Dr. McMahon’s report to conclude that Ramirez was “now
well within the average range of intelligence.” Dr. McMahon
measured Ramirez’s IQ score using the Peabody Picture
Vocabulary Test (PPVT), reporting that Ramirez scored 94,
which is “in no way indicative of any form of mental
retardation.” The sentencing memorandum also noted that
Ramirez changed schools ten times before seventh grade and
did not complete high school.4

                                  2

     During the mitigation hearing, trial counsel subpoenaed
three of Ramirez’s family members to testify on his behalf:
his aunt and two younger sisters. Ramirez’s aunt, Erlinda
Martinez, who was approximately the same age as Ramirez,
testified that Maria was about sixteen when she gave birth to
Ramirez. Ramirez’s biological father was not around.
Erlinda testified that she heard Maria drank while she was
pregnant. Erlinda stated that Maria would stay out partying
all night and would disappear for days. Maria was involved


    4
       According to trial counsel, she contacted Ramirez’s schools but
many of Ramirez’s school and psychological records were destroyed per
state policy, so she was unable to provide additional records.
10                     RAMIREZ V. RYAN

with “a lot of men.” She also testified that Maria would make
Ramirez cook for his siblings and clean the house because
Maria “wasn’t home watching over the kids, the way a
mother should.” Ramirez’s grandmother raised Ramirez for
a couple of years. Erlinda also stated that Ramirez had
behavioral problems as a child.

    Mary Castillo, Ramirez’s younger sister, testified that
Ramirez was very affectionate, and helped to keep his
siblings clothed and fed, but that Maria “was there for us
too.”5 Mary testified that Maria did not have a drinking
problem until later in life. She could not recall where
Ramirez went to school or whether he changed schools
frequently.

    Cynthia Orozco, another of Ramirez’s younger sisters,
testified that Ramirez was a good brother who supported his
wife and son. Ramirez was older than Cynthia, and Cynthia
testified that they were “hardly together” when they were
younger. She testified she did not have many memories
before she was nine years old (when Ramirez would have
been about fifteen years old). In the year before the crime,
Ramirez lived with her, helped her out with chores, and gave
her money every week.

   Two Department of Corrections employees who had
supervised Ramirez in the prison kitchen testified about
Ramirez’s job duties in prison and said that Ramirez was a
good worker.




   5
     Declarations from Ramirez’s family members later revealed that
Mary Castillo was “also very slow” and could not read or write.
                     RAMIREZ V. RYAN                     11

                                 3

    The sentencing judge found three aggravating
circumstances: Ramirez had two prior violent felony
convictions; the murders were committed in an especially
cruel, heinous, or depraved manner; and he committed
multiple murders at the same time. State v. Ramirez,
871 P.2d at 242.

    The judge found the following statutory mitigating
circumstance, that Ramirez’s “capacity to appreciate the
wrongfulness of his conduct or conform his conduct to the
requirements of the law was significantly impaired.” Id. The
judge also found the following non-statutory mitigating
circumstances:

       (1) his unstable family background,

       (2) his poor educational experience,

       (3) that he was a victim of sexual abuse while
       he was young,

       (4) his gang affiliation,

       (5) his chronic substance abuse,

       (6) his psychological history, and,

       (7) his love of family.

Id.
12                    RAMIREZ V. RYAN

    The judge sentenced Ramirez to death on both counts. Id.
at 239. On direct appeal, the Arizona Supreme Court
affirmed Ramirez’s convictions and sentence. Id. at 239.
The Arizona Supreme Court independently reviewed
Ramirez’s death sentence, affirming the trial court’s
assessment of aggravating and mitigating circumstances and
imposition of the death sentence. The United States Supreme
Court denied certiorari. Ramirez v. Arizona, 513 U.S. 968
(1994).

                               C

    Ramirez filed his initial petition for post-conviction relief
in state court, which was denied in its entirety in 1996. The
Arizona Supreme Court summarily denied Ramirez’s petition
for review. Ramirez’s post-conviction counsel did not raise
the ineffective assistance of trial counsel claim before us now
in the initial petition. Arizona concedes that post-conviction
counsel in the initial collateral review proceeding performed
deficiently.

    In 1997, Ramirez filed a petition for habeas relief with the
federal district court. The district court later substituted the
Federal Public Defender (FPD) for the previous habeas
counsel, “due to concerns regarding the quality of
representation.” Because of the substitution and its reason,
the district court allowed Ramirez to amend his petition. The
district court initially allowed Ramirez to add the current
ineffective assistance of trial counsel claim, finding it related
back to the original petition. But the court ultimately
concluded that the claim had been procedurally defaulted by
an independent and adequate state bar, and that the procedural
                         RAMIREZ V. RYAN                              13

default was not excused.6 Martinez Ramirez v. Ryan, No.
CV-97-1331-PHX-JAT, 2010 WL 3854792 (D. Ariz. Sept.
28, 2010) (pre-Martinez procedural default not excused);
Martinez Ramirez v. Schriro, No. CV 97-1331-PHX-JAT,
2007 WL 864415, *11 (D. Ariz. March 20, 2007) (order
granting leave to amend).

     While Ramirez’s appeal was pending in this court, the
Supreme Court decided Martinez, which held: “a procedural
default will not bar a federal habeas court from hearing a
substantial claim of ineffective assistance at trial if, in the
initial-review collateral proceeding, there was no counsel or
counsel in that proceeding was ineffective.” 566 U.S. 1at 17.

     In light of Martinez, we remanded for reconsideration of
whether post-conviction counsel’s ineffectiveness constituted
cause to overcome the procedural default of Ramirez’s claim
of trial counsel’s ineffectiveness. Ramirez v. Ryan, 2016 WL
4920284, at *1. The district court ordered supplemental
briefing, and Ramirez submitted evidence, including
declarations not submitted earlier, to support his request to
excuse the procedural default. Id. at *4, 8.

    The new declarations submitted by Ramirez’s family
members, who were not contacted by trial counsel, reveal the
extent of abuse, poverty, and neglect that Ramirez suffered as

    6
      The current ineffective assistance of counsel claim was initially
raised by private pro bono counsel in a successive state habeas petition
because the FPD’s appointment was for the limited purpose of litigating
Ramirez’s claim under Atkins v. Virginia, 536 U.S. 304 (2002)
(categorically prohibiting the execution of persons with an intellectual
disability). The current ineffective assistance of trial counsel claim was
summarily denied because Arizona law requires that ineffective assistance
of counsel be raised at the initial collateral review proceeding.
14                   RAMIREZ V. RYAN

a child. Ramirez’s step-father, three of Ramirez’s maternal
aunts, an aunt’s ex-husband, and two of Ramirez’s uncles
submitted declarations. The information in these declarations
contrasted with the information revealed at sentencing.
Several of the new declarations were from family members
who had first hand knowledge of the abuse and neglect
Ramirez suffered, and several actually lived with or cared for
Ramirez. Ramirez lived with his step-father for seven years.
Ramirez’s maternal aunt, Eloise Arce, and her husband,
William Laubner, Jr., cared for Ramirez for over a year.

    In contrast, the testimony presented by two of Ramirez’s
younger sisters during the mitigation hearing relayed no
information about Ramirez’s early years, although they both
testified to Ramirez’s good nature. Mary Castillo, who has a
learning disability herself, contradicted the report that her
mother had a drinking problem early in her life. Cynthia
Orozco testified that she and Ramirez were “hardly together”
when they were younger and that she did not have many
memories before she was nine years old (when Ramirez
would have been fifteen). Ramirez’s aunt, Erlinda, did testify
to red flags, including hearing that Maria drank while
pregnant and had “many male friends.” However, the
testimony of Ramirez’s younger sisters seemed to conflict
with her account.

    In the new declarations, Ramirez’s family members stated
they would have been willing to testify but were never
contacted by trial counsel. The declarations reveal that
Ramirez was born to a poor migrant worker family. Family
members noted their continual exposure to pesticides in the
fields where they worked. His mother, Maria, became
pregnant with Ramirez after her brother-in-law raped her.
Maria was an alcoholic and drug user who drank during her
                     RAMIREZ V. RYAN                       15

pregnancy, and she attempted to abort the fetus by ingesting
herbs and jumping off of the counter.

    Things did not improve after Ramirez was born. Maria
did not nurture or show love to Ramirez, and Ramirez was
often “shuttled around,” between various family members,
even as an infant, because “[n]obody wanted him.” Eloise,
who cared for Ramirez for over a year when he was an infant,
concluded that “no mother/child bond was ever formed
between [Ramirez and Maria].” Maria told a family member
that she would put beer in Ramirez’s bottle “when he was just
a few years old.” Family members recalled that Ramirez and
his siblings went hungry, not eating for days while Maria was
out drinking and partying. Ramirez was forced to steal food
to feed himself. Maria and her children moved frequently,
finding whatever “shack” she could, and the homes were
always “filthy,” with animal feces on the floor. Ramirez and
his siblings would eat on the floor, where they also slept on
dirty mattresses.

    Family members also recalled seeing Maria physically
abuse Ramirez, hitting him with “anything she could get her
hands on, including electrical cords and shoes.” Family
members testified that Maria solicited men for sex in bars and
allowed men to have sex with her daughter to support her
drug and alcohol habit. Maria had an infant who died from
exposure after being left in the house without heat in the
winter at night while Maria went out partying; Ramirez was
in the house asleep at the time.

    In addition to the physical abuse and neglect, family
members testified to Ramirez’s apparent developmental
delays, which included delayed walking, potty training, and
speech; not being able to read; and “slow” or odd behavior.
16                   RAMIREZ V. RYAN

Family members recalled Ramirez could not take care of
himself at a basic level: he had poor hygiene, did not know
how to comb his hair, and he ate with his hands because he
could not use utensils properly.

    During post-conviction proceedings, trial counsel also
submitted a declaration, acknowledging that Ramirez’s trial
was her first capital case and that she had no previous capital
experience. She also represented Ramirez by herself. In her
declaration, she noted she was not prepared to handle “the
representation of someone as mentally disturbed as David
Ramirez,” and she also acknowledged that she “did not fully
understand his limitations,” which prevented her from
“explain[ing] David’s situation to him on a level that he could
fully comprehend.” She noted that “[t]he mitigating
information that we did present was very limited,” and
remarked that had she had the information later presented by
Ramirez’s family members with first hand knowledge of his
childhood, it “would have changed the way I handled both
David’s guilt phase and his sentencing phase.” He also stated
she “had no strategic reason for not presenting all the
mitigation information available.”

    Dr. McMahon also submitted a declaration, indicating
that he did not receive Ramirez’s IQ scores or school reports.
According to Dr. McMahon, had he been provided with
Ramirez’s school records and IQ scores, he “would have
insisted on obtaining information about Mr. Ramirez’s
adaptive behavior.” He also stated that he would not have
administered the PPVT IQ test, which is not a comprehensive
IQ test, but rather “would have given Mr. Ramirez a
comprehensive IQ test.” In addition, Dr. McMahon would
not have concluded that Ramirez was not intellectually
disabled, because the scores of 70 and 77 on the “more
                      RAMIREZ V. RYAN                         17

comprehensive WISC IQ test[,] . . . would have indicated to
me that Mr. Ramirez may be retarded and it would have
greatly expanded the nature of the evaluation I did conduct.”

    Again, the district court determined that Ramirez’s claim
of ineffective assistance of trial counsel was procedurally
barred and denied Ramirez’s request for evidentiary
development. The district court did not, however, analyze
whether Ramirez had demonstrated cause and prejudice under
Martinez, but instead based its decision on whether Ramirez’s
underlying ineffective assistance of counsel claim would
ultimately succeed on the merits. Ramirez v. Ryan, 2016 WL
4920284, at *4. The district court concluded that “Ramirez
ha[d] not shown that Siegel’s performance at sentencing fell
below an objective standard of reasonableness.” Id. at *9.
The district court also found that “[e]ven if [trial counsel’s]
performance was deficient, Ramirez cannot show prejudice.”
Id. at *11.

     The district court issued a certificate of appealability for
the procedural default of Ramirez’s ineffective assistance of
trial claim, concluding that “reasonable jurists could debate
the conclusion that [the ineffective assistance of counsel
claim] is procedurally barred.” Id. at *13.

    On appeal, Ramirez raises three certified claims: that
(1) the procedural bar of his ineffective trial counsel claim is
excused under Martinez, (2) his due process rights under Ake
were violated when the trial court denied his request for
mental health experts, and (3) the Arizona state courts applied
an unconstitutional causal nexus requirement to exclude his
mitigation evidence.
18                    RAMIREZ V. RYAN

                               II

    We review the denial of habeas relief de novo. Lopez v.
Schriro, 491 F.3d 1029, 1036 (9th Cir. 2007). Ramirez’s
certified claims are not subject to the deferential review of
28 U.S.C. § 2254(d) because the state court did not address
these claims on the merits. Ramirez v. Schriro, No. CV 97-
1331-PXH-JAT, 2008 WL 5220936, at *14 n.10 (D. Ariz.
Dec. 12, 2008); see 28 U.S.C. § 2254(d).

    A federal court is precluded from reviewing a claim that
has been barred by an independent state procedural rule.
Martinez, 566 U.S. at 9. When a petitioner has procedurally
defaulted a claim, “federal habeas review of the claims is
barred 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). Generally, post-conviction counsel’s ineffectiveness
does not qualify as cause to excuse a procedural default. Id.
at 754–55. However, in Martinez, the Supreme Court
announced a narrow set of circumstances under which a
petitioner can establish cause. 566 U.S. at 17. Under
Martinez, the procedural default of a substantial claim of
ineffective assistance of trial counsel is excused if state law
requires that all claims be brought in the initial collateral
review proceeding, as Arizona law does, and if in that
proceeding there was no counsel or counsel was ineffective.
Id.

    Thus, to establish “cause” under Martinez—the first part
of establishing “cause and prejudice” to excuse a procedural
default—Ramirez must demonstrate that post-conviction
counsel was ineffective under Strickland v. Washington,
466 U.S. 668 (1984). Clabourne v. Ryan, 745 F.3d 362, 377
                       RAMIREZ V. RYAN                          19

(9th Cir. 2014), overruled on other grounds by McKinney,
813 F.3d at 819. In turn, Strickland requires demonstrating
“that both (a) post-conviction counsel’s performance was
deficient, and (b) there was a reasonable probability that,
absent the deficient performance, the result of the post-
conviction proceedings would have been different.” Id.
(citation omitted). Determining whether there was a
reasonable probability that the result of the post-conviction
proceedings would be different “is necessarily connected to
the strength of the argument that trial counsel’s assistance
was ineffective.” Id.

    To establish “prejudice” under Martinez’s second prong
of the “cause and prejudice” analysis, Ramirez must
demonstrate that his underlying ineffective assistance of trial
counsel claim is “substantial.” Id. In Martinez, the Supreme
Court defined substantial to be a “claim that has some merit,”
and explained the procedural default of a claim will not be
excused if the ineffective assistance of counsel claim “is
insubstantial, i.e., it does not have any merit or [ ] it is wholly
without factual support.” Martinez, 566 U.S. at 14–16.

    The Supreme Court provided no further definition of
substantial, but cited the standard for issuing a certificate of
appealability as analogous support for whether a claim is
substantial. Martinez, 566 U.S. at 14 (citing Miller-El v.
Cockrell, 537 U.S. 322 (2003)). Using the standard for
issuing a certificate of appealability, for a claim to be
substantial a petitioner must show “that reasonable jurists
could debate whether the issue should have been resolved in
a different manner or that the claim was adequate to deserve
encouragement.” Apelt v. Ryan, 878 F.3d 800, 828 (9th Cir.
2017) (quotations omitted). “A court should conduct a
‘general assessment of the[ ] merits,’ but should not decline
20                    RAMIREZ V. RYAN

to issue a certificate ‘merely because it believes the applicant
will not demonstrate an entitlement to relief.’” Cook v. Ryan,
688 F.3d 598, 610 n.13 (9th Cir. 2012) (alteration in original)
(quoting Miller-El, 537 U.S. at 336–37)).

    The analysis of whether both cause and prejudice are
established under Martinez will necessarily overlap, “since
each considers the strength and validity of the underlying
ineffective assistance claim.” Djerf v. Ryan, No. 08-99027,
___ F.3d ___, 2019 WL 3311147, at *6 (9th Cir. July 24,
2019).     However, the requirements remain distinct.
Clabourne, 745 F.3d at 377 (a finding of “‘prejudice’ for
purposes of the ‘cause and prejudice’ analysis which requires
only a showing that the trial-level ineffective assistance of
counsel claim was ‘substantial’—does not diminish the
requirement. . . that petitioner satisfy the ‘prejudice’ prong
under Strickland in establishing ineffective assistance by
post-conviction counsel”).

    Thus, to establish cause and prejudice in order to excuse
the procedural default of his ineffective assistance of trial
counsel claim, Ramirez must demonstrate the following:
(1) post-conviction counsel performed deficiently; (2) “there
was a reasonable probability that, absent the deficient
performance, the result of the post-conviction proceedings
would have been different,” Id.; and (3) the “underlying
ineffective-assistance-of-trial-counsel claim is a substantial
one, which is to say that the prisoner must demonstrate that
the claim has some merit.” Martinez, 566 U.S. at 14.

                              III

  Ramirez has demonstrated both cause and prejudice under
Martinez to excuse the procedural default of his ineffective
                          RAMIREZ V. RYAN                               21

assistance of trial counsel claim. We do not draw a
conclusion regarding the ultimate success of his ineffective
assistance of trial counsel claim. Rather, we remand for
Ramirez to pursue evidentiary development of that claim in
the district court.

     Whether post-conviction counsel’s performance was
deficient turns on the strength and substantiality of Ramirez’s
trial counsel ineffective assistance of counsel claim. We
therefore first address whether Ramirez’s underlying
ineffective assistance of trial counsel claim is substantial, i.e.,
whether Ramirez can establish prejudice under Martinez.
Then we evaluate post-conviction counsel’s performance
under Strickland to determine whether Ramirez has
established cause under Martinez.

                                    A

     The district court erred by conducting a full merits review
of Ramirez’s underlying ineffective assistance of trial counsel
claim on an undeveloped record. The district court skipped
to a conclusion on the merits of the ineffective assistance of
trial counsel claim, thereby holding Ramirez to a higher
burden than required in the Martinez procedural default
context.7 The district court concluded that “Ramirez has not


     7
       The district court collapsed what should have been a two-step
process: first, decide whether the procedural default is excused, and if so,
then address the claim squarely, after allowing a chance for any necessary
record or evidentiary development. Had the district court found the
procedural default excused, even implicitly, then reached the merits of the
claim on a properly developed record, this case may have been different.
See Apelt v. Ryan, 878 F.3d 800, 824 (9th Cir. 2017) (concluding “that the
district court implicitly determined that Apelt met the cause and prejudice
standard set forth in Coleman v. Thompson, and thus could address the
22                       RAMIREZ V. RYAN

shown that Siegel’s performance at sentencing fell below an
objective standard of reasonableness.” Ramirez v. Ryan,
2016 WL 4920284, at *9. The district court also concluded
that “even if Siegel’s performance were deficient, Ramirez
cannot show prejudice.” Id. at *11. Ramirez was not,
however, required to demonstrate the ultimate success of his
underlying ineffective assistance of counsel claim, but rather
whether he had established cause and prejudice under
Martinez.

    Indeed, the district court did not address whether the
claim was “substantial” at all and failed to evaluate post-
conviction counsel’s performance under Strickland except to
refute, in a footnote, Ramirez’s contention that the court had
already determined that post-conviction counsel performed
deficiently. Id. at *3 n.1.

    The district court issued a certificate of appealability for
the procedural default of Ramirez’s ineffective assistance of
counsel claim, finding that “reasonable jurists could debate
the conclusion that [the ineffective assistance of counsel
claim] is procedurally barred.” Id. at *13.

                                   B

   We now turn to a de novo review of whether Ramirez has
demonstrated that his claim of ineffective assistance of trial
counsel is substantial, thus constituting “prejudice” under
Martinez. Ramirez asserts that his claim of ineffective


merits of Apelt’s IAC claims” (internal citation omitted)). However, the
district court explicitly held that the procedural default was not excused
based on its conclusion that Ramirez’s ineffective assistance of trial
counsel claim failed on the merits.
                      RAMIREZ V. RYAN                        23

assistance of trial counsel is substantial because trial counsel
failed to present evidence of intellectual disability, brain
damage, and “the myriad mitigating circumstances in his
background.” We agree.

                               1

    To conduct a “general assessment of the merits” of
Ramirez’s underlying ineffective assistance of trial counsel
claim, we must examine the Strickland standard. See Cook,
688 F.3d at 610 & n.13. Under Strickland, a petitioner must
prove that counsel’s performance fell below an objective
standard of reasonableness and that the deficiency prejudiced
the petitioner. 466 U.S. at 689. An objective standard of
reasonableness is measured by the “prevailing professional
norms” at the time of representation. Id. at 688. The inquiry
of counsel’s performance under Strickland is “highly
deferential,” the court “must indulge a strong presumption
that counsel’s conduct falls within the wide range of
reasonable professional assistance,” and “the defendant must
overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.”
Id. at 689 (quotations omitted).

    The professional norms when Ramirez was sentenced
placed an affirmative duty on counsel “to investigate,
develop, and present mitigation evidence during penalty
phase proceedings.” Summerlin v. Schriro, 427 F.3d 623, 630
(9th Cir. 2005) (en banc) (discussing prevailing professional
norms during the 1980s). During capital penalty proceedings,
“[t]he duty to investigate is critically important.” Id.
“Although we must defer to a lawyer’s strategic trial choices,
those choices must have been made after counsel has
conducted reasonable investigations or made a reasonable
24                    RAMIREZ V. RYAN

decision that makes particular investigations unnecessary.”
Id. (internal quotations and citation omitted).

    There is a “belief, long held by this society, that
defendants who commit criminal acts that are attributable to
a disadvantaged background or to emotional and mental
problems, may be less culpable than defendants who have no
such excuse.” Boyde v. California, 494 U.S. 370, 382 (1990)
(quotations omitted; emphasis in original). Because of this
shared belief, “it is imperative that all relevant mitigating
information be unearthed for consideration at the capital
sentencing phase.” Summerlin, 427 F.3d at 630 (alterations
and quotations omitted). An investigation should include
“inquiries into social background and evidence of family
abuse.” Id. Counsel must also probe for evidence of mental
impairment and “examine the defendant’s physical health
history, particularly for evidence of potential organic brain
damage and other disorders.” Id.

                               2

     We first assess trial counsel’s performance under the first
prong of Strickland to determine whether Ramirez’s claim is
substantial. Ramirez has presented a substantial claim that
trial counsel performed deficiently because she failed to
pursue or present evidence that Ramirez was intellectually
disabled; failed to provide potentially powerful mitigating
evidence to Dr. McMahon; and subsequently relied on
Dr. McMahon’s report, despite possessing conflicting facts.
We recognize that this is not a case where counsel failed to
present any mitigating evidence. However, her failure to
present or pursue evidence that, if considered, could have
made a difference in the outcome of Ramirez’s trial, is
substantial, particularly given that our review is de novo and
                      RAMIREZ V. RYAN                          25

unconstrained by the strictures of 28 U.S.C. § 2254(d). Thus,
Ramirez’s ineffective assistance of trial counsel claim was at
least a substantial one within the meaning of Martinez.

    For example, trial counsel had evidence demonstrating
that Ramirez may have been intellectually disabled. She
knew he scored 70 and 77 on IQ scores in school, was three
to four grades behind his peers, switched schools ten times
before completing seventh grade, and never graduated from
high school. Ramirez v. Ryan, 2016 WL 4929284, at *5. As
she later revealed, her own interactions with Ramirez raised
concerns about his intellectual functioning and ability to
understand his situation. Trial counsel had no capital
experience and had not even observed a capital trial or
sentencing. She admitted she was unprepared to represent
“someone as mentally disturbed as David Ramirez, especially
in a capital case.”

    Despite possessing these facts, trial counsel failed to
investigate further or present a claim of mental impairment,
and instead relied on Dr. McMahon’s conclusion that
Ramirez was “well within the average range of intelligence.”

    “We have repeatedly held that counsel may render
ineffective assistance if he is on notice that his client may be
mentally impaired, yet fails to investigate his client’s mental
condition as a mitigating factor in a penalty phase hearing.”
Caro v. Woodford, 280 F.3d 1247, 1254 (9th Cir. 2002)
(quotations omitted). Here, inexplicably, trial counsel did not
provide Ramirez’s IQ scores or the school records she did
have to Dr. McMahon. While it is generally reasonable to
rely on an expert opinion, particularly where Ramirez
requested the expert, it is not reasonable to fail to provide that
expert with the critical information that would inform the
26                   RAMIREZ V. RYAN

tenor and type of evaluation administered. Id. (“[C]ounsel’s
failure to investigate and provide appropriate experts with the
information necessary to evaluate Caro’s neurological system
for mitigation constituted deficient performance under
Strickland.”). Dr. McMahon’s conclusion that Ramirez was
“well within the average range of intelligence” could well
have been different had he had knowledge of Ramirez’s poor
school records and attendance, his low IQ scores, his
exposure to alcohol, and trial counsel’s interactions with
Ramirez, as Dr. McMahon’s later declaration attests.

    Trial counsel provided Dr. McMahon with police reports,
plea agreements, notes from an interview, and sentencing
orders. The fact that she presented Dr. McMahon with
certain information, but failed to provide the records that
could lead to potentially powerful mitigating evidence, is
unreasonable and supports a substantial claim of deficient
performance. See Clabourne, 745 F.3d at 383 (concluding
that petitioner’s counsel was ineffective during capital
sentencing based on three grounds, including for “fail[ing] to
provide any mental health expert with health records
sufficient to develop an accurate psychological profile of
[petitioner].”).

    Trial counsel also possessed facts regarding Ramirez’s
upbringing that contradicted the conclusions and observations
in Dr. McMahon’s report. The report concluded that Maria
“devot[ed] her time as a traditional Mexican-American
mother whose responsibility revolved around the home and
her children,” and that Maria “was always there” for Ramirez
“as he was growing up.” As additional mitigating testimony
from family members who lived with and cared for Ramirez
later revealed, Dr. McMahon’s description of Maria’s
relationship with Ramirez could not be farther from the truth.
                     RAMIREZ V. RYAN                       27

Maria physically abused Ramirez, who was repeatedly
shuttled around family members’ homes because he was not
wanted. Ramirez and his siblings were neglected and left
alone for days on end, living in “filthy” conditions. They
were often hungry. Ramirez witnessed significant violence
at home. Ramirez evidenced significant developmental
delays and attended school sporadically, not finishing high
school.

    Despite counsel’s affirmative duty to “conduct sufficient
investigation and engage in sufficient preparation to be able
to present and explain the significance of all the available
mitigating evidence,” the misleading conclusions and
observations in Dr. McMahon’s report were left unchallenged
and unexplained. See Mayfield v. Woodford, 270 F.3d 915,
927 (9th Cir. 2001) (en banc) (quotations and alterations
omitted) (quoting Williams v. Taylor, 529 U.S. 362, 399
(2000)).

     Trial counsel had a duty to investigate and pursue
mitigating evidence, especially where “tantalizing indications
in the record suggest[ed] that certain mitigating evidence may
be available.” Lambright v. Schriro, 490 F.3d 1103, 1117 (9th
Cir. 2007) (quotations omitted). Given trial counsel’s
knowledge of Ramirez’s poor school records and attendance,
his low IQ scores, her own interactions with Ramirez, his
exposure to alcohol, and the red flags in his family’s
testimony, trial counsel was under an affirmative “duty to
investigate and present mitigating evidence of mental
impairment as well as evidence of family abuse.” Id. at 1117.
Ramirez has made out a substantial claim that trial counsel
performed deficiently.
28                        RAMIREZ V. RYAN

                                     3

    Given the deficient performance, we next analyze whether
Ramirez has demonstrated a substantial claim of prejudice as
a result of trial counsel’s deficient performance. Under
Strickland, “[t]o establish ‘prejudice,’ a petitioner ‘must show
that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.’” Sexton v. Cozner, 679 F.3d 1150, 1159–60
(9th Cir. 2012). “To assess that probability, we consider the
totality of the available mitigation evidence—both that
adduced at trial, and the evidence adduced in the habeas
proceeding—and reweigh it against the evidence in
aggravation.” Porter v. McCollum, 558 U.S. 30, 41 (2009)
(quotations and alterations omitted).

    First, we address the effect of counsel’s failure to provide
Dr. McMahon with Ramirez’s IQ scores. Trial counsel’s
failure to provide accurate and complete records to
Dr. McMahon support a substantial claim of prejudice to
Ramirez because the failure led to the presentation of an
inaccurate and flawed report at sentencing. Although
Ramirez was sentenced to death before Atkins,8 as the district


     8
       The government argues that the determination that Ramirez was not
intellectually disabled in the context of his Atkins claim hearings is
binding here. We disagree. Finding that Ramirez is intellectually disabled
and thus cannot be executed under Atkins is different than presenting
mitigating evidence of an intellectual disability. See Doe v. Ayers,
782 F.3d 425, 441 (9th Cir. 2015). (“[A]ll potentially mitigating evidence
is relevant at the sentencing phase of a death case, so a troubled childhood
and mental problems may help even if they don't rise to a specific,
technically-defined level.”). Nevertheless, we note that two experts did
diagnose Ramirez with an intellectual disability in connection with the
Atkins claim.
                     RAMIREZ V. RYAN                        29

court noted, “in Arizona a ‘slow, dull and brain-damaged’
mental impairment may have a significant mitigating effect
as it may evidence an inability of the defendant to control his
conduct.” Martinez Ramirez v. Ryan, 2010 WL 3854792, at
*5. In his declaration, Dr. McMahon remarked that he would
not have concluded that Ramirez’s score on the PPVT test
was “in no way indicative of any form of mental retardation”
had he seen Ramirez’s school record and IQ scores, as
“[t]hese scores would have indicated to me that Mr. Ramirez
may be retarded and it would have greatly expanded the
nature of the evaluation I did conduct.” It also would have
changed the type of testing that Dr. McMahon administered.
Dr. McMahon indicated in his declaration that he would not
have administered the PPVT test, but “would have given
Mr. Ramirez a comprehensive IQ test[, because] [t]he PPVT
is not a comprehensive IQ test.” The IQ tests that resulted in
Ramirez’s lower scores of 70 and 77 were “the more
comprehensive WISC IQ tests.”

    Second, the mitigating evidence introduced during post-
conviction proceedings was not all cumulative. We disagree
that the new mitigating evidence “would barely have altered
the sentencing profile presented to the sentencing judge.” See
Strickland, 466 U.S. at 699–700. Viewing the record of
mitigating evidence available as a whole to the sentencing
judge and the record of mitigating evidence available now,
we are persuaded that Ramirez’s claim of prejudice is not
“wholly without factual support.” See Martinez, 566 U.S.
at 16.

    The mitigation evidence presented during sentencing did
not consistently or accurately describe the circumstances of
Ramirez’s life. Dr. McMahon’s report concluded that
Ramirez was “well within the average range of intelligence,”
30                    RAMIREZ V. RYAN

and indicated Maria was a loving mother who was there for
the children and Ramirez as he was growing up. During the
mitigation hearing, Ramirez’s family members generally
testified about Ramirez’s good qualities. The testimony of
Ramirez’s younger sisters was largely unhelpful: Cynthia did
not live with Ramirez for much of their childhood and could
not recall any details of their childhood. Mary testified to a
relatively normal childhood, although it was later revealed
that Mary herself faced intellectual challenges.

    Overall, the picture of mitigation presented at sentencing
is relatively innocuous compared to the details that later
emerged about Ramirez’s life. The sentencing memorandum
used by trial counsel highlighted and discussed Ramirez’s
criminal history, school attendance, substance abuse, and
ability to adapt in prison. Had the sentencing memorandum
instead highlighted that Ramirez’s childhood was “filled with
abuse and privation, or the reality that he was ‘borderline
mentally retarded,’” there is “a reasonable probability that the
result of the sentencing proceeding would have been different
if competent counsel had presented and explained the
significance of all the available evidence.” See Williams,
529 U.S. at 398–99 (quotations omitted). The judge did find
several mitigating factors, and only three aggravating factors.
Had the evidence of a mental impairment been introduced, as
well as the evidence of the level of abuse Ramirez suffered,
there is a substantial claim that the judge “would have struck
a different balance.” See Porter, 558 U.S. at 42 (quotations
omitted).

   The mitigating evidence Ramirez has presented is not too
speculative, irrelevant, or weak to disregard. Cf. Schriro v.
Landrigan, 550 U.S. 465, 481 (2007). Neither is it a situation
where the petitioner is pointing to some unknown and yet to
                      RAMIREZ V. RYAN                          31

be discovered mitigating evidence. Djerf, 2019 WL 3311147,
at *7 (“Djerf has failed to identify any evidence related to his
childhood that counsel should have, but did not, uncover.”).
Here, two psychologists diagnosed Ramirez as intellectually
disabled, with one finding evidence of brain dysfunction.
Subsequent declarations revealed the extent of the physical
abuse and extreme neglect that Ramirez suffered,
corroborated by multiple family members who were not
contacted by trial counsel.

    In sum, Ramirez has established a substantial claim that
he was prejudiced by trial counsel’s deficient performance
under Strickland. Based on the foregoing, and without
Ramirez receiving the benefit of full evidentiary
development, we cannot conclude that Ramirez’s ineffective
assistance of trial counsel claim overall “is insubstantial, i.e.,
it does not have any merit or [ ] it is wholly without factual
support.” Martinez, 566 U.S. at 16. Therefore, Ramirez has
established prejudice under Martinez.

                                C

     We now turn to whether Ramirez has established cause
under Martinez. We conclude that he has. The government
concedes that post-conviction counsel’s performance was
constitutionally deficient, but argues that because trial
counsel’s performance was not deficient, post-conviction
counsel’s “failure to raise a successful ineffective assistance
of trial counsel claim was not prejudicial.” (“[T]here is little
question that his performance was constitutionally deficient
under Strickland.”).

   As the foregoing discussion indicates, we conclude that
Ramirez’s ineffective assistance of trial counsel claim is
32                    RAMIREZ V. RYAN

“substantial.” The underlying ineffective assistance of
counsel claim is strong enough to support a conclusion that,
had post-conviction counsel performed effectively and raised
the claim, “there [is] a reasonable probability that, absent the
deficient performance, the result of the post-conviction
proceedings would have been different.” See Clabourne,
745 F.3d at 377.

    The district court clearly saw problems with post-
conviction counsel’s performance and potential prejudice as
a result. Although the district court did not conclude that
post-conviction counsel was deficient under Strickland, the
court made the following observations while assessing post-
conviction counsel’s performance in a pre-Martinez context:

       Based on the sentencing record, [post-
       conviction relief (“PCR”)] counsel was on
       notice that Petitioner had two IQ tests
       documenting low intelligence and another test
       demonstrating he was behind his peers in
       educational development. PCR counsel was
       also on notice that the presentence report
       indicated that Petitioner displayed low
       intelligence and emotional immaturity. Even
       though Dr. McMahon reported that Petitioner
       was not mentally retarded, PCR counsel was
       still on notice of the contrast between Dr.
       McMahon’s report and the low IQ scores
       being reported, as well as the mental health
       deficiencies counsel presented as mitigation at
       sentencing. PCR counsel was also on notice of
       his need to investigate mental health because
       in Arizona a “slow, dull and brain-damaged”
       mental impairment may have a significant
                      RAMIREZ V. RYAN                         33

        mitigating effect as it may evidence an
        inability of the defendant to control his
        conduct.

Martinez Ramirez v. Ryan, 2010 WL 3854792, at *5 (internal
citations omitted).

    Post-conviction counsel possessed evidence that indicated
that Ramirez could have an intellectual disability, and knew
that trial counsel failed to present or pursue evidence of an
intellectual disability.      Had post-conviction counsel
performed effectively, by reviewing the record, trial counsel’s
failure to present evidence of Ramirez’s intellectual disability
would have readily revealed itself. Also, had post-conviction
counsel conducted a reasonable investigation into Ramirez’s
upbringing, taking into account the “red flags” raised at the
penalty phase hearing, the record of physical abuse and
neglect Ramirez suffered as a child could have been
presented in support of the ineffective assistance of trial
counsel claim. Had post-conviction counsel raised the
substantial claim of ineffective assistance of trial counsel, for
failure to pursue and present mitigating evidence of an
intellectual disability, there is a reasonable probability that
the result of the post-conviction proceedings would have been
different.     We therefore conclude that Ramirez has
established cause under Martinez.

                               D

    Finally, the district court erred in denying Ramirez
evidentiary development of his ineffective assistance of
counsel claim. Ramirez asserts he should have been given
the opportunity to present testimony from mental health
experts, sentencing counsel, prior investigators, a capital
34                       RAMIREZ V. RYAN

mitigation expert, and lay witnesses in order to prove his
ineffective assistance of counsel claim. We agree. Martinez,
566 U.S. at 13 (“Ineffective-assistance claims often depend
on evidence outside the trial record.”). Because we now hold
that Ramirez has established both cause and prejudice to
excuse the procedural default of his claim, he no longer
requires evidentiary development to support establishing
cause and prejudice under Martinez. However, he is entitled
to evidentiary development to litigate the merits of his
ineffective assistance of trial counsel claim, as he was
precluded from such development because of his post-
conviction counsel’s ineffective representation. See Detrich
v. Ryan, 740 F.3d 1237, 1247 (9th Cir. 2013) (en banc).

                                   IV

    The district court correctly concluded that Ramirez’s
rights under Ake v. Oklahoma were not violated. 470 U.S. 68
(1985). Ramirez asserts that because the record demonstrated
that his mental health would be an issue during sentencing,
due process required the appointment of a mental health
expert.9 Ramirez also asserts that the district court’s
interpretation of Ake was erroneous and that the trial court
forced Ramirez to waive self-representation to obtain a
mental health expert.

   Under Ake, a defendant is entitled to an independent
psychological examination to assist in his defense during “a
capital sentencing proceeding, when the State presents
psychiatric evidence of the defendant’s future


     9
     Ramirez argued in the district court that he was denied mental health
experts during the guilt phase of his proceeding; however, he does not
pursue that claim on appeal.
                      RAMIREZ V. RYAN                        35

dangerousness.” 470 U.S. at 83. Under our precedent, the
right to a mental health expert is not limited to when the state
presents evidence of future dangerousness. Williams v. Ryan,
623 F.3d 1258, 1268–69 (9th Cir. 2010) (“[O]ther circuits
have interpreted Ake to require a state to provide a defendant
expert psychiatric assistance at sentencing only where the
state also planned to rely on psychiatric testimony. Yet, we
have never read Ake so narrowly.”). Indeed, “[w]here the
mental health of an accused person is genuinely in issue, due
process requires the opportunity to have an independent
mental health expert to assist the defense.” Williams v.
Stewart, 441 F.3d 1030, 1049 (9th Cir. 2006).

    The district court rejected Ramirez’s Ake claim, noting
that Ake does not require the appointment of a mitigation
specialist. Further, the district court found that even under a
broad reading of Ake, according to the district court, Ramirez
had not made a showing that his mental health would be a
significant issue in sentencing. Finally, the district court
noted that the trial court did appoint a psychologist,
Dr. McMahon, whose report Ramirez and the trial court
relied on to find a statutory mitigating circumstance. Ramirez
v. Schriro, 2008 WL 5220936, at *16.

    The district court correctly rejected Ramirez’s Ake claim.
Due process under Ake does not require the appointment of a
mitigation specialist, so we assess whether Ramirez was
denied access to an independent psychological evaluation.
We agree with the district court that even under a broad
reading of Ake, Ramirez’s claim fails because he did receive
the assistance of an independent psychologist. Similarly,
despite the court’s initial incredulity at appointing a
psychologist and a mitigation specialist, it ultimately
36                      RAMIREZ V. RYAN

appointed several experts, so there was no impermissible
waiver of self-representation.10

    Ramirez asserts that the “subsequent appointment of a
neutral psychologist is irrelevant.” We disagree. To the
extent Ramirez is relying on Smith v. McCormick, that case
is easily distinguishable. 914 F.2d 1153 (9th Cir. 1990). In
Smith, due process was violated because the court ordered a
psychiatrist to report directly to the court, so the psychiatrist
never met with Smith’s counsel and “in no sense assisted in
the evaluation or preparation of the defense.” Id. at 1157–58.

    Here, the trial court appointed Dr. McMahon, a
psychologist suggested by Ramirez. Although the court
appointed Dr. McMahon on its own motion and to help the
court make a decision, ultimately Ramirez, not the state or the
court, relied on Dr. McMahon’s report. Ramirez did not
request the appointment of an additional psychologist to rebut
anything in Dr. McMahon’s report. Additionally, the trial
court relied on Dr. McMahon’s report to find one statutory
mitigating factor: that Ramirez lacked the “capacity to
appreciate the wrongfulness of his conduct or to conform his
conduct to the requirements of law.” Ramirez’s due process
rights under Ake were not violated.

                                  V

   Although we sua sponte expanded the certificate of
appealability to include the issue of whether the Arizona state
courts improperly excluded Ramirez’s mitigating evidence


     10
       In addition, the trial judge who expressed incredulity over
Ramirez’s pre-trial requests for experts did not preside over Ramirez’s
sentencing because the case was transferred before trial.
                     RAMIREZ V. RYAN                       37

because it was not causally connected to his crime in
violation of McKinney, we conclude that the Arizona courts
did not unconstitutionally apply a causal nexus requirement
to Ramirez’s mitigating evidence.

    Under Lockett v. Ohio, during capital sentencing, the
sentencing judge should “not be precluded from considering,
as a mitigating factor, any aspect of a defendant’s character
or record and any circumstances of the offense that the
defendant proffers as a basis for a sentence less than death.”
438 U.S. 586, 604 (1978). In McKinney, 813 F.3d at 816,
819, we held that the Arizona Supreme Court was improperly
excluding nonstatutory mitigating evidence as a matter of
law, requiring defendants to prove a causal connection
between the mitigating evidence and the commission of the
crime, during its review of death sentences in violation of
Lockett and Eddings v. Oklahoma, 455 U.S. 104 (1982).

    This unconstitutional causal nexus requirement was
articulated by the Arizona Supreme Court in capital cases
from the late 1980s until 2005. See State v. Anderson,
111 P.3d 369, 391 (Ariz. 2005) (holding that mitigating
evidence in a capital case cannot be rejected because it lacks
a causal nexus to the crime); see also McKinney, 813 F.3d
at 809. During that time period, the Arizona Supreme Court
case law “forbade as a matter of law giving weight to
[nonstatutory] mitigating evidence, such as family
background or mental condition, unless the background or
mental condition was causally connected to the crime.” Two
specific cases that enunciated these rules were State v.
Wallace, 773 P.2d 983 (Ariz. 1989) and State v. Ross,
886 P.2d 1354 (Ariz. 1994). Id. at 802.
38                    RAMIREZ V. RYAN

    In McKinney, defendant’s proffered mitigating evidence
was explicitly rejected by both the Arizona trial court and the
Arizona Supreme Court: “A difficult family background,
including childhood abuse, does not necessarily have
substantial mitigating weight absent a showing that it
significantly affected or impacted the defendant's ability to
perceive, comprehend, or control his actions.” State v.
McKinney, 917 P.2d 1214, 1227 (Ariz. 1996). The Arizona
Supreme Court cited Ross, 886 P.2d at 1363, to support its
disregard of the mitigating evidence. Id.

    In Apelt, we identified the critical factors that indicated
whether the Arizona courts during the pertinent time period
did not apply the unconstitutional causal nexus requirement
by disregarding mitigating evidence otherwise generally used
during that period. 878 F.3d at 839–40. In Apelt, we noted
the following factors: (1) the trial court did not state a factual
conclusion regarding a causal nexus between the mitigation
evidence and the defendant’s conduct; (2) the Arizona
Supreme Court did not state a factual conclusion that any
proffered mitigation would have “influenced [the defendant]
not to commit the crime;” and (3) the Arizona Supreme Court
did not cite either Ross or Wallace when reviewing the
mitigating evidence. Id.

    Though the Arizona Supreme Court reviewed Ramirez’s
convictions in 1994, during the period that the Arizona
Supreme Court was applying a causal nexus requirement, the
record here indicates that mitigating evidence was not
rejected as a matter of law. In fact, the record compels the
opposite conclusion. Importantly, the trial court found non-
statutory mitigating factors including: “his unstable family
background,” “his poor educational experience,” “that he was
a victim of sexual abuse while he was young,” “his chronic
                      RAMIREZ V. RYAN                         39

substance abuse,” “his psychological history,” and “his love
of family.” At a hearing before Ramirez was sentenced, the
judge stated, “I have difficulty placing substantial
significance on the lifestyle that this Defendant experienced,
although I, obviously, am giving it some weight.”

    The Arizona Supreme Court affirmed all of the mitigating
circumstances found by the trial court, and neither of the state
courts excluded any mitigating evidence because it was not
causally connected to the crime. Ramirez argues that had the
judge truly considered the mitigating factors, he would not
have been sentenced to death. What the trial court would
have decided had it considered all the mitigating evidence
actually presented at trial–as opposed to the evidence that
could have been presented had trial counsel not been
ineffective–is not at all self-evident; it is certainly not proof
that, despite express attestation to the contrary, no weight was
given to the mitigating evidence in question.

    Here, as in Apelt, there is no statement from either state
court that indicates that the state courts refused to consider
mitigating evidence as a matter of law because it was
unrelated to the crime. Additionally, the sentencing judge
expressly indicated that he would give some weight to the
relevant mitigating factors. Further, neither of the state courts
cited to Ross or Wallace in reviewing Ramirez’s mitigating
evidence. We are not prepared to find error where the
Arizona courts did not articulate an unconstitutional causal
nexus test to mitigating evidence, did not cite Ross or
Wallace, found several non-statutory mitigating factors, and
stated that the non-statutory factors would be given some
weight.
40                       RAMIREZ V. RYAN

                                   VI

    In sum, we reverse the judgment of district court as to the
procedural default of the ineffective assistance of counsel
claim, and remand for an evidentiary hearing on that issue.
We affirm the district court’s denial of Ramirez’s Ake claim
and reject Ramirez’s McKinney claim. We do not reach the
remaining uncertified issues.11 See 28 U.S.C. § 2253(c)(2).

  AFFIRMED in part, REVERSED in part, and
REMANDED.



BERZON, Circuit Judge, dissenting in part:

    I concur in the opinion except in one respect: I would
grant a certificate of appealability with regard to Ramirez’s
claim under Atkins v. Virginia, 536 U.S. 304 (2002)
(prohibiting the execution of intellectually disabled persons),
see Opinion at 40 n.11, hold that the claim does relate back to
Ramirez’s ineffective assistance of counsel claim, and
remand to the district court for further proceedings.

    We may grant a certificate of appealability if the
petitioner makes “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). A petitioner
makes this substantial showing “by demonstrating that jurists


     11
       One of these uncertified issues that we decline to address is
Ramirez’s claim under Atkins v. Virginia, 536 U.S. 304. Ramirez is, of
course, not precluded from asserting an independent Atkins claim when an
execution date is set based on his alleged intellectual disability at that
time.
                      RAMIREZ V. RYAN                        41

of reason could disagree with the district court’s resolution of
his constitutional claims.” Cain v. Chappell, 870 F.3d 1003,
1015 (9th Cir. 2017). But the district court did not consider
the merits of Ramirez’s Atkins constitutional claim because
it concluded that the claim was not timely filed and did not
relate back to a timely filed habeas claim under Federal Rule
of Civil Procedure 15. In this circumstance, our inquiry has
two parts:

        When the district court denies a habeas
        petition on procedural grounds without
        reaching the prisoner’s underlying
        constitutional claim, a [certificate of
        appealability] should issue when the prisoner
        shows, at least, [1] that jurists of reason would
        find it debatable whether the petition states a
        valid claim of the denial of a constitutional
        right and [2] that jurists of reason would find
        it debatable whether the district court was
        correct in its procedural ruling.

Slack v. McDaniel, 529 U.S. 473, 484 (2000). Applying this
standard, a certificate of appealability should issue on the
relation back issue.

    First, jurists of reason would find it debatable whether
Ramirez has a valid claim under Atkins. Ramirez is likely not
entitled to relief under 28 U.S.C. § 2254(d)(1), as the state
court decision is probably not contrary to federal law clearly
established at the time. See Shoop v. Hill, 139 S. Ct. 504
(2019). But Ramirez could possibly prevail on his claim
under section 2254(d)(2) that the state court unreasonably
determined the facts in concluding that Ramirez was not
intellectually disabled. Cf. Brumsfeld v. Cain, 135 S. Ct.
42                       RAMIREZ V. RYAN

2269, 2278 (2015) (concluding that under section 2254(d)(2)
the state court unreasonably determined the facts regarding
petitioner’s Atkins claim).

     Ramirez contends that the state court unreasonably
determined the facts by, inter alia, relying on certain experts
it acknowledged did not have the requisite credentials and did
not administer the proper tests; refusing to take the Flynn
effect1 into account; and refusing to follow community
intelligence standards by placing significant weight on
Ramirez’s adaptive strengths while in prison rather than
outside a structured environment. Ramirez has raised a
colorable argument that, by failing to follow the established
science on intellectual disability, the state court unreasonably
determined that he was not intellectually disabled.

    Second, I believe it more than debatable that the district
court erred in its procedural ruling, and that Ramirez’s Atkins
claim does relate back to his timely filed ineffective
assistance of counsel claim. A claim relates back under Rule
15(c) if there is “a common core of operative facts uniting the
original and newly asserted claims.” Mayle v. Felix, 545 U.S.
644, 659 (2005). A claim will not relate back “when the new
claims depend upon events separate in ‘both time and type’”
from the original relief requested. Id. at 657. This “time and
type” language “refers not to the claims, or grounds for relief.
Rather, it refers to the facts that support those grounds.” Ha
Van Nguyen v. Curry, 736 F.3d 1287, 1297 (9th Cir. 2013)



     1
       “The basic premise of the Flynn effect is that because average IQ
scores increase over time, a person who takes an IQ test that has not
recently been normed against a representative sample of the population
will receive an artificially inflated IQ score.” Smith, 813 F.3d at 1184.
                     RAMIREZ V. RYAN                        43

abrogated on other grounds by Davila v. Davis, 137 S. Ct.
2058 (2017).

    The Atkins claim and the ineffective assistance of trial
counsel claim we are remanding for consideration on the
merits share a “common core of operative facts” similar in
“time and type.” See Mayle, 545 U.S. 657, 59. The core of
Ramirez’s ineffective assistance claim is the failure of his
attorney and the psychological expert to investigate and
appreciate the facts indicating the severity of Ramirez’s
mental impairments, principally his intellectual disability.
Litigating the ineffective assistance of trial counsel claim on
its merits requires presenting the evidence trial counsel
should have introduced regarding Ramirez’s mental
disability. Ramirez’s Atkins claim depends on the same
facts—what a properly developed record shows concerning
Ramirez’s cognitive abilities and adaptive behavior.

    The district court held that “[w]hile proof that Petitioner
is mentally retarded could have been offered as mitigation at
sentencing and, therefore, is reasonably part of his IAC-at-
sentencing claim, the Atkins claim is not based on attorney
error.” This difference indicates that the two are different
types of claims. But as Ha Van Nyguen clarified, that is not
the relevant inquiry under Mayle. See 736 F.3d at 1297. (The
district court’s decision in 2008 was made without the benefit
of Ha Van Nyguen, a decision published in 2013.) “[F]acts
that support those grounds” for relief in each claim—
Ramirez’s actual intellectual disability—are similar—indeed,
largely identical—in time and type. See id.

   Respondents rely on Schneider v. McDaniel, 674 F.3d
1144 (9th Cir. 2012), to argue that Ramirez’s Atkins claim
does not relate back. Schneider is inapposite. In Schneider,
44                    RAMIREZ V. RYAN

the petitioner argued that his new ineffective assistance of
counsel claim related back to a previous, different ineffective
assistance claim because of the common fact of counsel’s
ineffectiveness. Id. at 1151. The substantive part of the two
claims—that is, what counsel did not do and so was
ineffective—was entirely different. See id. It was this kind of
partial overlap that Schneider rejected, because it “would
stand the Supreme Court’s decision in Mayle on its head.” Id.
Here, in contrast, the new claim that relates back is a merits
claim, not one of ineffective assistance of counsel. As to that
merits claim, the overlap with the merits aspect of the
Ramirez’s ineffective assistance of counsel claim is near
complete.

     This case is also distinct from one arguing that an
ineffective assistance of counsel claim relates back to a
connected merits claim. In United States v. Ciampi, 419 F.3d
20 (1st Cir.2005), for example, petitioner’s ineffective
assistance of counsel claim was based on his counsel’s failure
to inform petitioner of his rights before the plea. Ciampi held
that ineffective assistance claim did not relate back to his
initial petition alleging a due process violation based on the
court’s failure to advise the petitioner of the same
consequences. Id. at 24. As the facts of Ciampi illustrate,
ineffective assistance claims often incorporate both facts
contained in the trial record and supplemental facts regarding
the actions (and inactions) of counsel. An ineffective
assistance claim will factually overlap in some respects with
a related merits claim, but, as in Ciampi, critical facts outside
the trial record may not overlap. If those supplemental facts
are core operative facts of an ineffective assistance claim, the
claim may not relate back to the underlying merits claim. I
note that some ineffective assistance claims do relate back to
the incorporated merits issue. Ha Van Nyguen, 736 F.3d at
                      RAMIREZ V. RYAN                        45

1297, so held, concluding that an ineffective assistance of
appellate counsel claim for failing to raise a double jeopardy
claim did relate back because it shared a common core of
facts with petitioner’s timely filed cruel and unusual
punishment claim.

    What we have here is the reverse situation from Nyguen:
the ineffective assistance of trial counsel claim required
establishing what an effective trial counsel would have done
regarding the underlying claim—here the penalty phase
mitigation presentation as it related to Ramirez’s mental
disability—and whether it was likely to have succeeded; the
merits claim that is sought to be added to the habeas
petition—the Atkins claim—concerns the same issue—
Ramirez’s mental disability. In that circumstance, the relevant
core facts of the merits claim are necessarily incorporated in
the ineffective assistance claim, so relation back is
appropriate. That is the scenario currently before us.

     The central concern of the relation back doctrine as
applied in Mayle and Nyguen is whether the newly articulated
claim will require substantial additional factual development.
Now that the merits portions of the ineffective assistance of
trial counsel claim concerning the failure to present available
evidence of Ramirez’s mental disability at the penalty phase
is going forward, the Aktins claim will not require
substantially different factual development. Both claims turn
essentially on whether Ramirez was intellectually disabled at
the time of trial, and if so, to what degree. The district court
on remand already must allow evidentiary development
regarding the merits of Ramirez’s ineffective assistance of
trial counsel claim with regard to penalty phase mitigating
evidence for purposes of determining whether trial counsel
was ineffective. In all likelihood, the evidence presented to
46                    RAMIREZ V. RYAN

show what trial counsel should have presented but did not
will include the very same expert evidence introduced in state
court in support of the Atkins claim.

    In sum, Ramirez has shown “at least, that jurists of reason
would find it debatable whether the petition states a valid
claim of the denial of a constitutional right” under Atkins. See
Slack, 529 U.S. at 484. Because jurists of reason would also
disagree with the district court’s relation back holding,
Ramirez is entitled to a certificate of appealability on his
Atkins claim. See id.

    Once a certificate of appealability is granted, we review
the district court’s denial of Ramirez’s proposed amendment
for abuse of discretion. Hebner v. McGrath, 543 F.3d 1133,
1136 (9th Cir. 2008). Because the Atkins claim does share a
“common core of operative facts” with his ineffective
assistance claim as discussed above, and because the district
court misapplied the “time and type” language in Mayle, see
Ha Van Nguyen, 736 F.3d at 1297, I would conclude that
Ramirez’s Atkins claim does relate back to the timely filed
habeas petition, and that the district court abused its
discretion in holding otherwise.
