                  FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


GREGORY DICKENS,                           No. 08-99017
            Petitioner-Appellant,
                                             D.C. No.
                  v.                        CV-01-757-
                                            PHX-NVW
CHARLES RYAN,
            Respondent-Appellee.             OPINION


       Appeal from the United States District Court
                for the District of Arizona
         Neil V. Wake, District Judge, Presiding

             Argued and Submitted En Banc
           June 24, 2013—Seattle, Washington

                  Filed January 23, 2014

Before: Alex Kozinski, Chief Judge, and Harry Pregerson,
Kim McLane Wardlaw, Marsha S. Berzon, Jay S. Bybee,
Consuelo M. Callahan, Sandra S. Ikuta, N. Randy Smith,
Mary H. Murguia, Morgan Christen and Paul J. Watford,
                    Circuit Judges.

  N.R. Smith, Circuit Judge, delivered the opinion of the
Court, which is joined in full by Judges Ikuta and Watford.
 Chief Judge Kozinski, Judge Bybee, and Judge Callahan
 join Parts I and II. Judges Pregerson, Wardlaw, Berzon,
            Murguia, and Christen join Part III.
2                        DICKENS V. RYAN

               Opinion by Judge N.R. Smith;
       Partial Concurrence by Chief Judge Kozinski;
               Concurrence by Judge Watford;
Partial Concurrence and Partial Dissent by Judge Callahan;
Partial Concurrence and Partial Dissent by Judge Christen


                           SUMMARY*


                Habeas Corpus/Death Penalty

    The en banc court affirmed in part and vacated in part the
district court’s denial of a 28 U.S.C. § 2254 habeas corpus
petition challenging a conviction and capital sentence for
felony murder and conspiracy to commit armed robbery.

    In Parts I and II of the opinion, the en banc court held
that, applying Enmund v. Florida, 458 U.S. 782 (1982), and
Tison v. Arizona, 481 U.S. 137 (1987), the Arizona Supreme
Court did not unreasonably conclude that petitioner Dickens
was eligible for the death sentence because he was a major
participant in the victims’ robbery/murder and acted with
reckless indifference to human life. The majority also agreed
that the state court’s decision was not based on an
unreasonable determination of fact.

    In Part III of the opinion, the en banc court held that
Dickens’s claim of ineffective assistance of counsel was
procedurally defaulted and should be remanded to allow the
district court to evaluate whether Dickens can show cause and

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

prejudice under the Supreme Court’s intervening decision in
Martinez v. Ryan, 132 S. Ct. 1309 (2012). The majority also
provided guidance to the district court by explaining that:
(1) Cullen v. Pinholster, 131 S. Ct. 1388 (2011), does not bar
the federal district court from considering the procedurally
barred ineffective assistance claim because it was not
previously adjudicated on the merits by the state courts;
(2) Dickens’s other, previously adjudicated ineffective
assistance claims did not foreclose the procedurally barred
claim; and (3) 28 U.S.C. § 2254(e)(2) does not bar an
evidentiary hearing on remand for Dickens to show cause and
prejudice to overcome the procedural bar.

    Chief Judge Kozinski, joined by Judges Bybee and
Callahan, concurred in Parts I and II. He wrote separately
because he believes the Arizona Supreme Court’s application
of Enmund and Tison was not just reasonable, but entirely
correct.

    Judge Watford concurred, except to the extent that the
majority suggested that the state court correctly applied Tison
and Enmund to the facts of Dickens’s case. He agreed that
the state court’s application of those precedents was not
unreasonable, but under an independent evaluation of those
cases he would have held that the Eighth Amendment bars
Dickens’s execution.

    Judge Callahan, joined by Chief Judge Kozinski and
Judge Bybee, concurred in Parts I and II of the majority
opinion and dissented from Part III. She explained that there
are three strikes against Dickens and he should be out of
court: (1) Dickens is not eligible for the narrow exception to
the exhaustion requirement under Martinez because the state
court rejected his claim on the merits; (2) Dickens’s specific
4                     DICKENS V. RYAN

allegations of organic brain damage and Fetal Alcohol
Syndrome do not amount to a new claim of ineffective
assistance regarding mitigating evidence; and (3) a review of
counsel’s performance on the merits would result in the
conclusion that counsel adequately presented mitigating
evidence and any failings were not prejudicial.

    Judge Christen, joined by Judges Pregerson, Wardlaw,
Berzon and Murguia, dissented from Parts I and II of the
majority opinion and concurred in Part III. She dissented
because imposing the death penalty in this case is an
unreasonable application of clearly established law as
articulated in Enmund and Tison, and at least two
unreasonable findings of fact were critical to the state court’s
decision. She would grant relief and decline to reach
Dickens’s Martinez argument. Because the majority did
reach the Martinez issue, Judge Christen joined in the
judgment to vacate the district court’s ruling and remand for
consideration of the issue in light of Martinez.



                         COUNSEL

Robin C. Konrad (briefed and argued) and Dale A. Baich,
Assistant Federal Public Defenders, Federal Public
Defender’s Office, Phoenix, Arizona, for Petitioner-
Appellant.

John P. Todd, Assistant Attorney General, Capital Litigation
Section, Arizona Attorney General’s Office, Phoenix,
Arizona, for Respondent-Appellee.
                         DICKENS V. RYAN                               5

                             OPINION

N.R. SMITH, Circuit Judge:

    Arizona state prisoner Gregory Scott Dickens appeals the
district court’s denial of his 28 U.S.C. § 2254 habeas corpus
petition. We affirm the district court’s conclusion that (1) the
Arizona Supreme Court did not unreasonably apply Enmund
v. Florida, 458 U.S. 782 (1982), and Tison v. Arizona,
481 U.S. 137 (1987), to the facts of this case and (2) the
Arizona Supreme Court did not base its decision on an
unreasonable determination of the facts.                     See
28 U.S.C. § 2254(d). However, we reverse the district court’s
denial of one of Dickens’s ineffective assistance of counsel
claims.1 While we agree that Dickens defaulted on this claim
by failing to fairly present the claim to the Arizona courts, we
remand to allow the district court to reassess whether Dickens
can establish cause and prejudice to excuse the procedural
default under Martinez v. Ryan, 132 S. Ct. 1309 (2012).

                               FACTS2

    In January 1990, Dickens became acquainted with then
fourteen-year-old Travis Amaral. Dickens met Amaral while
working as a counselor at Oak Grove Institute in Temecula,
California. Oak Grove is a placement center for violent


 1
   Dickens raises other uncertified issues on appeal, which we address in
a separate Memorandum Disposition filed concurrently with this Opinion.
 2
   These facts are drawn substantially from the Arizona Supreme Court’s
opinion in State v. Dickens, 926 P.2d 468, 474–75 (Ariz. 1996) (in banc).
We presume the correctness of the Arizona court’s findings unless
rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
6                    DICKENS V. RYAN

juveniles where Amaral lived at the time. While working
with Amaral, Dickens learned that he was a “high risk”
patient with a “violent and explosive temper.” Dickens also
discovered that Amaral battered a nurse and frequently
bragged about carrying guns and being involved in several
murders. In March 1990, Dickens quit working at Oak
Grove, but continued his friendship with Amaral.

    In early September 1991, Dickens moved to Yuma,
Arizona. A few days after his move, Amaral contacted
Dickens and explained that he was running away from home.
Dickens purchased a bus ticket for Amaral to travel to Yuma.
Amaral arrived in Yuma on September 8, 1991. The two then
spent the next several days recreating near the Colorado
River. Dickens showed Amaral a .38-caliber revolver he had
recently acquired and, at some point during their time
together, Amaral attempted to intimidate Dickens by pointing
the revolver at Dickens’s head.

    Dickens paid for Amaral’s food and transportation during
his visit to Yuma. But Dickens was running low on cash. On
September 10, 1991, Dickens and Amaral discussed “ways to
get more money,” while eating dinner at a Hardee’s
restaurant. Dickens suggested they plan a robbery. They
flipped a coin to decide who would conduct the first robbery.
Amaral won. Dickens then gave Amaral a choice of several
locations to commit the robbery. His options included a
convenience store and a highway rest stop. Amaral selected
the rest stop since it was “out of the way,” less busy, and
“easier.”

    Dickens and Amaral left the restaurant and drove to a rest
area on the eastbound side of Interstate 8, east of Yuma.
Dickens removed his .38-caliber revolver from the glove
                          DICKENS V. RYAN                                 7

compartment and placed it on a seat in the vehicle. At some
point while waiting at the rest stop, Amaral again pointed the
revolver at Dickens’s head to intimidate him. After waiting
at the rest area for approximately three hours, Dickens and
Amaral saw Bryan and Laura Bernstein enter the rest area for
westbound traffic on the opposite side of the freeway.3
Dickens nodded his head and either handed Amaral the
handgun or watched him remove it from the seat. They
agreed that, once Amaral robbed the Bernsteins, he would run
down the westbound ramp of the rest area where Dickens
would pick him up.

    Dickens watched from his truck on the opposite side of
the highway as Amaral crossed the interstate, approached the




 3
   Bryan and Laura were both 22 years old. They had been married for
three years and graduated from Cornell University. When they were
murdered, they were traveling through Arizona en route to UCLA where
they both received fellowships to undertake graduate work.

      The jury heard evidence that the Bernsteins were not the first car to
enter the rest area during the three hours that Dickens and Amaral waited
for victims. Amaral testified that between four and six other cars entered
and exited the rest area before the Bernsteins arrived. At some point, a car
full of six people entered. Dickens asked Amaral whether Amaral thought
he could “pull off” the robbery of those people or whether Amaral wanted
to wait for “something easier.” Amaral responded that they should wait,
because six people were “too many for the amount of bullets [they] had.”
While we mention this testimony, we omit it from our statement of facts,
and do not rely on it in our Enmund/Tison analysis below, because the
Arizona Supreme Court did not rely on this testimony in its discussion of
the evidence supporting the Enmund/Tison findings. See Dickens,
926 P.2d at 490–91.
8                         DICKENS V. RYAN

Bernsteins, and asked if they had the time.4 Laura responded,
“9:17 [p.m.].” Amaral then pointed the gun at Bryan and
demanded his wallet. Once Bryan surrendered his wallet,
Amaral asked Laura for her wallet, but she did not have one.
Amaral then ordered the Bernsteins to walk past their car and
turn around. From the opposite side of the highway, Dickens
observed Amaral moving the Bernsteins across the beams of
light from their headlamps. Amaral asked if they were ready
to die and then shot Laura in the head. Dickens saw the
bright flash of the gun as Amaral shot Laura. Laura fell to the
ground and Bryan crouched down over her. Amaral then
recocked the revolver, pointed it at Bryan, and shot him in the
head.

    After observing the robbery and shootings, Dickens drove
across the median and through the rest area. No evidence

    4
    The Arizona Supreme Court noted that “Amaral also testified that he
carried a two-way walkie-talkie that [Dickens] had given him, and
[Dickens] had one with him in his truck.” 926 P.2d at 474. And that
“Speaking through the walkie-talkie, [Dickens] then told Amaral, ‘No
witnesses.’ Amaral asked, ‘What?’ [Dickens] replied, ‘You know what
I mean, no witnesses.’ Amaral responded, ‘What do you mean by no
witness? If I kill them, there are no witnesses; If I leave them here, there
are witnesses.’ [Dickens] replied, ‘No witnesses.’” Id. The district court
also relied on this factual summary. However, Dickens presented
evidence at trial showing that Amaral’s statements were inconsistent and
that his testimony was contradicted by his fellow prisoners. Ultimately,
the Assistant Attorney General conceded before the Arizona Supreme
Court that “the one part the jurors and trial court didn’t believe, was the
talk about the walkie-talkie” and that the Arizona Supreme Court
“shouldn't believe, the walkie-talkie testimony.” Thus, we omit from our
factual summary any reference to the alleged walkie-talkie conversation.
However, the jury’s disbelief of the walkie-talkie testimony does not show
that the Arizona Supreme Court’s decision was unreasonable, because the
court did not rely on this testimony in its discussion of the evidence
supporting the Enmund/Tison findings. See Dickens, 926 P.2d at 490–91.
                     DICKENS V. RYAN                       9

suggests Dickens stopped to aid the Bernsteins, called for
emergency medical assistance, or otherwise notified the
authorities. Dickens then picked up Amaral on the
westbound side of the highway and asked, “Do you have the
wallet?” Amaral replied that he did and handed the wallet to
Dickens. Dickens searched the wallet and returned it to
Amaral. Dickens explained to Amaral that he had driven
through the rest area to make sure “everything was taken care
of.” They then drove to the home of Dickens’s brother where
Amaral removed cash, traveler’s checks, and one credit card
from Bryan’s wallet. Dickens and Amaral burned the wallet
and its remaining contents. They split the cash, Amaral
pocketed the credit card and they later destroyed the
traveler’s checks.

    At approximately 9:40 p.m., a deputy sheriff drove into
the rest area and found the Bernsteins lying on the ground in
front of their vehicle. Laura was dead. Bryan was
semiconscious, thrashing around, and moaning in pain.
Bryan told the deputy that he had been threatened with a gun,
attacked, and thought he had been shot. Bryan died shortly
thereafter.

    On September 11, the morning following the murders,
Amaral unsuccessfully attempted to use Bryan’s credit card
at a local K-Mart. Dickens and Amaral spent that night at a
Motel 6 where Dickens had rented a room. Early the next
morning, Dickens drove to Carlsbad, California, and Amaral
went back to his mother’s house.

   Dickens and Amaral met up again in March 1992, and
Amaral stayed with Dickens for one or two weeks in a San
Diego, California apartment. Amaral’s mother reported
Amaral as a runaway and gave Dickens’s address to the
10                         DICKENS V. RYAN

police. The police conducted an investigation into sex abuse
charges against Dickens. San Diego police officers
eventually arrested Dickens on charges of sexually abusing
Amaral (and other boys) and assault with a deadly weapon.5
During an interview concerning the alleged abuse, Amaral
told officers that he and Dickens had been involved in the
double homicide in Yuma.

                    PROCEDURAL HISTORY

     In April 1992, Dickens was indicted for two counts of
premeditated first-degree murder, two counts of felony
first-degree murder, one count of conspiracy to commit
first-degree murder, one count of conspiracy to commit
armed robbery, and two counts of armed robbery. After a
trial, he was acquitted of premeditated murder and conspiracy
to commit murder. However, he was convicted of the felony
murders and armed robberies of Bryan and Laura Bernstein
and conspiracy to commit armed robbery. The sentencing
court found no mitigating factors and thus sentenced Dickens
to death on the felony murder counts.6 The sentencing judge
ordered that, if the sentences were ever reduced, then they
should be served consecutively. The court also sentenced
Dickens to fourteen years’ imprisonment on the conspiracy
and armed robbery convictions, to be served consecutively to
the death sentences.

 5
      This information was not provided to the jury.
  6
    The district court sentenced Dickens to death prior to the Supreme
Court’s decision in Ring v. Arizona, 536 U.S. 584 (2002), that juries
(rather than courts) must determine the presence or absence of aggravating
factors meriting imposition of the death penalty. The procedural rule
announced in Ring “does not apply retroactively to cases already final on
direct review.” Schriro v. Summerlin, 542 U.S. 348, 358 (2004).
                      DICKENS V. RYAN                       11

    Dickens applied for post-conviction relief from the trial
court but was denied. Dickens then appealed his conviction
and sentence to the Arizona Supreme Court. That court
affirmed the trial court’s denial, noting that “[t]his is not a
case of lingering doubt” and that overwhelming evidence
supported the conviction and capital sentences. State v.
Dickens, 926 P.2d 468, 493 (Ariz. 1996) (in banc).

    Dickens subsequently filed a petition for writ of habeas
corpus under 28 U.S.C. § 2254 with the U.S. District Court
for the District of Arizona. In the federal habeas proceeding,
Dickens changed his ineffective assistance of counsel
(“IAC”) claim to include extensive factual allegations that he
suffered from Fetal Alcohol Syndrome (“FAS”) and organic
brain damage. The district court concluded that Dickens’s
new claim was procedurally barred and, with regard to his
other arguments, denied his petition. Dickens appealed the
district court’s decision to this court.

    A divided panel of our court affirmed the district court’s
denial of Dickens’s Enmund/Tison claim. However, all three
judges agreed that the district court’s conclusion that Dickens
procedurally defaulted his IAC claim should be vacated and
remanded to allow the district court to reassess the claim in
light of the Supreme Court’s decision in Martinez v. Ryan,
132 S. Ct. 1309 (2012). Both parties petitioned for this Court
to rehear the case en banc, and a majority of non-recused
active judges voted to rehear the case.

                STANDARD OF REVIEW

    We review de novo the district court’s order denying the
petition. Estrada v. Scribner, 512 F.3d 1227, 1235 (9th Cir.
2008).
12                   DICKENS V. RYAN

    The Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) applies to this court’s review of Dickens’s
claims. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The
threshold a defendant must overcome to obtain relief under
AEDPA is high. Specifically, to obtain relief under AEDPA
Dickens must show that the Arizona Supreme Court’s
decision was either (1) “contrary to” clearly established
federal law as determined by the Supreme Court,
(2) “involved an unreasonable application of such law,” or (3)
“was based on an unreasonable determination of the facts in
light of the record before the state court.” Harrington v.
Richter, ___ U.S. ___, 131 S. Ct. 770, 785 (2011) (quoting
28 U.S.C. § 2254) (internal quotation marks omitted).

    Because the relevant state court determination for a
habeas petition is the last reasoned state court decision, we
review the Arizona Supreme Court’s decision denying
Dickens relief. See Delgadillo v. Woodford, 527 F.3d 919,
925 (9th Cir. 2008) (citing Ylst v. Nunnemaker, 501 U.S. 797,
804–06 (1991)). “State-court decisions are measured against
[the Supreme Court’s] precedents as of ‘the time the state
court renders its decision.’” Cullen v. Pinholster, 131 S. Ct.
1388, 1399 (2011) (quoting Lockyer v. Andrade, 538 U.S. 63,
71–72 (2003)). “[A] federal habeas court may not issue the
writ simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly.” Lockyer,
538 U.S. at 75–76 (internal quotation marks and citation
omitted). “Rather, that application must be objectively
unreasonable.” Id. at 76 (emphasis added).
                         DICKENS V. RYAN                              13

                           DISCUSSION

    Dickens argues that the Arizona Supreme Court
unreasonably applied Enmund/Tison when it upheld
Dickens’s death sentence.7 Dickens also argues that the
Arizona Supreme Court based its decision on an unreasonable
determination of the facts. Finally, Dickens claims that his
counsel was ineffective at sentencing, because counsel failed
to adequately investigate and present certain mitigating
evidence.

    We reject Dickens’s first two arguments and affirm the
district court’s denial of Dickens’s Enmund/Tison claim.
However, we reverse the district court’s conclusion that
Dickens failed to show cause to overcome his procedural
default and remand so that the district court can determine
whether Dickens can show cause and prejudice under
Martinez.




  7
    “A decision can be ‘contrary to’ federal law in one of two ways: if it
‘applies a rule that contradicts the governing law set forth in [Supreme
Court] cases,’ or if it ‘confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme Court] and nevertheless
arrives at a result different from [that] precedent.’” Brown v. Horell,
644 F.3d 969, 978 (9th Cir. 2011) (quoting Williams v. Taylor, 529 U.S.
362, 405–06 (2000)). In contrast, “a decision is an ‘unreasonable
application’ of clearly established federal law” in cases where the state
court identified “the correct legal principle from [the Supreme Court’s]
decisions but unreasonably applies that principle to the facts of the
prisoner’s case.” Cunningham v. Wong, 704 F.3d 1143, 1153 (9th Cir.
2013) (internal quotation marks omitted). Here, the Arizona Supreme
Court recognized Enmund and Tison as the relevant precedent, so only the
“unreasonable application” prong of § 2254(d)(1) is at issue.
14                       DICKENS V. RYAN

     I. The Arizona Supreme Court did not unreasonably
        apply Enmund/Tison.

    The Arizona Supreme Court correctly identified Enmund
and Tison as the clearly established federal law governing
Dickens’s claim. In Enmund, the Supreme Court reversed the
death sentence of a defendant convicted under Florida’s
felony-murder rule. 458 U.S. at 798. In Tison, the Supreme
Court affirmed the death sentences of two defendants
convicted under Arizona’s felony-murder rule. 481 U.S.
137.8 In distinguishing between the two cases, the Tison
Court articulated a two prong standard to determine whether
a felony murder defendant is death eligible. For a death
sentence to be constitutional under the Eighth Amendment,
the state must show the defendant’s “[1] major participation
in the felony committed, [2] combined with reckless
indifference to human life.” 481 U.S. at 158. For the reasons
stated below, the Arizona Supreme Court did not
unreasonably conclude that Dickens was a major participant
in the Bernsteins’ robbery/murder and acted with reckless
indifference to human life.

     A. Major participation

    Dickens claims that his participation in the crimes was
insufficient to warrant a death sentence, like the defendant in
Enmund. Enmund was the driver of the getaway car in an
armed robbery in which his accomplices murdered an elderly
couple who resisted the robbery. 458 U.S. at 784–86. The
Court determined that Enmund “did not commit the


 8
   The Court remanded for further proceedings to determine whether the
defendants acted with reckless disregard for human life. Tison, 481 U.S.
at 158.
                      DICKENS V. RYAN                       15

homicide, was not present when the killing took place, and
did not participate in a plot or scheme to murder.” Id. at 795.
The Court noted that “the only evidence of the degree of
[Enmund’s] participation [was] the jury’s likely inference that
he was the person in the car by the side of the road near the
scene of the crimes[,] . . . waiting to help the robbers escape
. . . .” Id. at 786 (internal quotation marks omitted). There
was no evidence that Enmund provided the murder weapons,
knew of the shooters’ violent propensities, planned the
underlying crime, or continued to assist the perpetrators after
they murdered their victims. Enmund’s only participation
was that of getaway driver. Id. at 786 n.2.

    By contrast in Tison, the defendants helped their father
and his cellmate—both convicted murderers—escape from
prison, armed them with shotguns, helped flag down and
kidnap a family on an isolated road, drove the family to a
remote site, and then stood by as their father and his cellmate
murdered the four family members. 481 U.S. at 139–41. The
Court concluded that the Tison brothers’ major participation
in the crimes distinguished them from Enmund. Id. at
151–52. The Court noted that the Tison defendants:
(1) “actively participated in the events leading to the death
by, inter alia, providing the murder weapons and helping
abduct the victims”; (2) were “present at the murder site,
[and] did nothing to interfere with the murders”; (3) “ma[de]
no effort to assist the victims before, during, or after the
shooting”; (4) “after the murders . . . continued on the joint
venture”; and (5) “could anticipate the use of lethal force”
during the commission of their crimes. Id. at 145, 151
(internal quotation marks omitted).

   In this case, the Arizona court’s application of federal law
was not objectively unreasonable.           Indeed, Dickens
16                        DICKENS V. RYAN

participated in the crimes to nearly the same extent as the
Tison defendants. As in Tison, Dickens participated in the
events leading up to the death, because he “suggested they
plan a robbery,” “[t]he robberies were premeditated, planned,
and agreed on by [Dickens] and Amaral,” and “[Dickens]
drove Amaral to the scene.” Dickens, 926 P.2d at 474, 490.
Dickens was present at the murder site and did not interfere
with the murders since Dickens “wait[ed] and watch[ed] for
approximately three hours” for the victims to arrive and then
“[Dickens] waited while Amaral committed the robberies.”
Id. at 474, 490. Dickens made no effort to assist the victims
but rather “picked up Amaral” after the crime “then drove to
the home of [his] brother.” Id. at 475. Dickens continued the
joint venture when he “witnessed the destruction of evidence,
and failed to report the crimes.” Id. at 490. And finally,
Dickens could have anticipated that Amaral would use lethal
force since “[Dickens] furnished Amaral with the weapon
used in the murders or knew Amaral had the weapon with
him for the robberies.” Id. In short, Dickens was actively
involved in every aspect of the deadly crime—suggesting
they undertake the robbery, planning the robbery, staking out
the crime scene, selecting the victims, arming Amaral with a
handgun,9 watching the murders, aiding Amaral’s escape,



   9
     The Arizona Supreme Court’s decision is (arguably) vague as to
whether Dickens armed Amaral. The Arizona Supreme Court, in its
“Death eligibility” discussion, noted only that Dickens either furnished the
weapon or knew Amaral had the weapon. Dickens, 926 P.2d at 490.
However, it is irrelevant whether Dickens actually handed Amaral the gun
in the moments before the Bernsteins’ robbery and murder. Dickens does
not dispute that he owned the gun and showed it to Amaral prior to the
crimes. As such, Dickens “furnished” the gun by owning it, showing it to
Amaral, and either giving it to him or knowingly allowing him to use it for
the crimes.
                     DICKENS V. RYAN                       17

destroying evidence, and helping Amaral evade capture.
Dickens was clearly a major participant in the crime.

    Nonetheless, Dickens insists his conduct was more akin
to the defendant in Enmund than to the defendants in Tison.
While we disagree for the reasons stated above, more
importantly, Dickens’s argument overlooks the deference we
owe the Arizona Supreme Court’s decision under AEDPA.
At the very least, reasonable minds could differ as to whether
Dickens’s participation level is closer to the defendant in
Enmund than the defendants in Tison. See Richter, 131 S. Ct.
at 786. Tison does not illuminate the precise line where a
defendant’s conduct becomes “major participation.” Thus,
even assuming that Dickens’s conduct falls into a “grey area”
between Enmund and Tison, we must defer to the Arizona
Supreme Court’s conclusion. See Wright v. Van Patten,
552 U.S. 120, 126 (2008) (per curiam) (“Because [Supreme
Court precedent] give[s] no clear answer to the question
presented . . . it cannot be said that the state court
unreasonably applied clearly established Federal law.”
(internal quotation marks and alterations omitted)).

     One of Dickens’s arguments in particular illustrates
AEDPA’s effect on his claim. Dickens argues that Enmund
and Tison require a defendant’s immediate physical presence
at the murder scene to qualify for the death penalty. Dickens
bases this argument on an arguable distinction between this
case and Tison: the Tison brothers were apparently in closer
proximity to the killings than Dickens. See 481 U.S. at 141,
144–45. However, nowhere in Enmund or Tison does the
Supreme Court clearly establish that “presence” at a murder
scene is a mandatory prerequisite for the death penalty.
Instead, physical presence is merely one of several factors
relevant to the “major participation” prong of the Tison
18                   DICKENS V. RYAN

analysis. Id. at 158. The Tison court never stated that one
factor was more important than another factor. Rather, it
simply concluded that the defendants’ actions collectively
demonstrate a “high level of participation . . . [that]
implicates them in the resulting deaths.” Id.

    Here, the Arizona Supreme Court considered Dickens’s
“presence” at the murder scene along with the other relevant
factors. See Dickens, 926 P.2d at 490. Its failure to give the
presence factor any particular weight relative to any other
factor demonstrating Dickens’s “high level of participation”
in the crimes did not violate clearly established federal law.
Thus, we cannot say that the Arizona Supreme Court’s
decision was objectively unreasonable, regardless of whether
Tison is distinguishable from Dickens’s case on the
“presence” factor.

     Furthermore, even if “presence” were the dispositive
factor in the “major participant” analysis, Dickens would face
an additional AEDPA hurdle. The Supreme Court has never
defined “presence” as it pertains to major participation in a
capital crime. As a result, the Arizona Supreme Court had
only the two contrasting examples of presence in Enmund and
Tison to guide its reasoning. In Enmund, where the defendant
sat in a car outside the home where two victims were shot to
death and neither heard nor observed the murders, the Court
concluded that the defendant “was not present when the
killing took place.” 458 U.S. at 795. However, in Tison,
where the defendants stood by as four people were gunned
down, the Court determined the defendants were “present” at
                         DICKENS V. RYAN                              19

the murder site. 481 U.S. at 145.10 The lack of any Supreme
Court precedent defining “presence” requires us to give the
Arizona Supreme Court some “leeway” in making its
determination. See Richter, 131 S. Ct. at 786.

    Here, the Arizona Supreme Court suggested that
Dickens’s presence at the murder scene—combined with his
other actions leading up to and following the
crimes—qualified him as a major participant. See Dickens,
926 P.2d at 490. The record demonstrates that this was not an
unreasonable conclusion. Dickens testified at trial that he
watched, as the Tison brothers presumably did, each part of
the Bernsteins’ murders as they unfolded. Dickens saw the
Bernsteins pull into the rest stop. After selecting the
Bernsteins as the victims, Dickens nodded his head and
watched Amaral walk across the highway with a loaded
.38-caliber handgun, knowing Amaral was going to rob the
Bernsteins at gunpoint. He was close enough to see Amaral
moving the Bernsteins around the front of their car in the path
of the illuminated headlamps and to see flashes as Amaral
shot the victims in the head. Then, rather than merely acting
as the getaway driver, Dickens drove through the rest stop to,
in his words, verify that “everything was taken care of” and
pick up Amaral. Thus, the Arizona Supreme Court did not


   10
      There was apparently some dispute as to the Tison defendants’
involvement in, and proximity to, the murders: “Ricky claimed to have a
somewhat better view than Raymond did of the actual killing. Otherwise,
the [Arizona] court noted, Ricky Tison’s participation was substantially
the same as Raymond’s.” 481 U.S. at 145. The defendants may have
actually walked away from the murder scene to fetch a water jug for the
victims “when [they] started hearing the shots.” Id. at 141. However,
because both defendants “watched Gary Tison and Greenawalt fire in the
direction of the victims,” they were “present” at the murder scene. Id. at
141, 144–45, 157 (emphasis added).
20                       DICKENS V. RYAN

unreasonably conclude that Dickens was a major participant
in the Bernsteins’ robbery and murder.11

      B. Reckless indifference to human life

    The second prong of the Tison analysis requires the
felony-murder defendant to exhibit “reckless indifference to
human life” sufficient to satisfy Enmund’s culpability
requirement for capital punishment. 481 U.S. at 158. The
Tison Court observed that

         some nonintentional murderers may be among
         the most dangerous and inhumane of all—the
         person who tortures another not caring
         whether the victim lives or dies, or the robber
         who shoots someone in the course of the
         robbery, utterly indifferent to the fact that the

 11
    At the en banc oral argument, Dickens argued that, because Enmund
was found not present at the scene of the murders when he was 200 yards
away, and Dickens was approximately 199 yards from the murders,
Dickens could not have been present at the scene. However, this
argument is not supported by the record. We know that Dickens got much
closer: While the crime was still ongoing—and while at least one of the
victims was still alive—Dickens “drove across the median to the
westbound lanes, where he picked up Amaral.” Dickens, 926 P.2d at 475.
Unlike Enmund, who sat “waiting to help the robbers escape,” Enmund,
458 U.S. at 788, Dickens drove toward the scene, not to aid the victims,
but “to aid those whom he had placed in the position to kill.” Tison,
481 U.S. at 152. It is unclear from the record exactly how close Dickens
was, but it was certainly much less than 200 yards.

     In any event, the Supreme Court has never defined a set distance
between the defendant and the murders to constitute presence.
Determining whether a defendant was present based solely on how many
yards the defendant was from the crime ignores important contextual
factors.
                     DICKENS V. RYAN                       21

       desire to rob may have the unintended
       consequence of killing the victim as well as
       taking the victim’s property. This reckless
       indifference to the value of human life may be
       every bit as shocking to the moral sense as an
       “intent to kill.”

Id. at 157. The Tison court further held that “the reckless
disregard for human life implicit in knowingly engaging in
criminal activities known to carry a grave risk of death
represents a highly culpable mental state” sufficient to
warrant capital punishment “when that conduct causes its
natural, though also not inevitable, lethal result.” Id. at
157–58 (emphasis added).

    Applying Tison, the Arizona Supreme Court concluded
that Dickens acted with a reckless indifference to human life,
because, in addition to the factors demonstrating his major
contribution to the crimes, Dickens armed Amaral with the
.38-caliber revolver, knowing that “Amaral had a violent and
explosive temper,” and “failed to render aid” to the
Bernsteins. Dickens, 926 P.2d at 490. Given these facts, the
Arizona Supreme Court concluded that Dickens exhibited a
reckless indifference to human life.

    Dickens argues that this conclusion was unreasonable,
because armed robbery is not a crime “known to carry a grave
risk of death.” However, Dickens cites no U.S. Supreme
Court precedent, and we know of none, clearly establishing
this principle. Moreover, even if the garden variety armed
robbery were not known to carry a grave risk of death, the
question here is whether the circumstances of Dickens’s
crime carried a grave risk of death and caused their “natural,
22                   DICKENS V. RYAN

though also not inevitable, lethal result.” Tison, 481 U.S. at
158.

    The facts support the Arizona Supreme Court’s
determination that Dickens knew there was a grave risk of
death in sending an explosive adolescent with a history of
violence to commit armed robbery. From his experience
working at the Oak Grove Institute (a treatment center for
violent juveniles), Dickens knew that Amaral was a high risk
patient with a “violent and explosive temper.” Dickens,
926 P.2d at 490. He knew that Amaral had battered a nurse
at Oak Grove and had a long history of carrying guns. He
knew that Amaral was reckless in his handling of guns since
Amaral twice attempted to intimidate Dickens—once at the
river and once immediately before the robbery—by pointing
the loaded .38-caliber revolver at Dickens’s head. He knew
that Amaral had bragged about being involved in other
murders. Yet even with this knowledge, Dickens proceeded
with the robbery. He either furnished Amaral with his
.38-caliber revolver or knew Amaral had the gun, and stood
by while Amaral left with the gun to rob the Bernsteins on the
opposite side of the highway. Like the defendants in Tison,
who armed two convicted murderers and helped plan and
orchestrate the armed robbery, Dickens “could have foreseen
that lethal force might be used” in the course of the robbery.
481 U.S. at 151–52; accord Foster v. Quarterman, 466 F.3d
359, 370–71 (5th Cir. 2006) (denying habeas relief to a death
row petitioner because he displayed reckless indifference to
human life by driving two armed co-conspirators from victim
to victim to commit armed robbery, a criminal activity
“known to carry a grave risk of death”).

    Furthermore, after watching the shootings, Dickens, like
the defendants in Tison, chose to “aid [Amaral,] whom he had
                      DICKENS V. RYAN                        23

placed in the position to kill rather than [aid] their victims.”
Tison, 481 U.S. at 152; see id. (“These facts not only indicate
that the Tison brothers’ participation in the crime was
anything but minor; they also would clearly support a finding
that they both subjectively appreciated that their acts were
likely to result in the taking of innocent life.”). Dickens
helped Amaral flee the scene of the murder, destroy evidence,
and evade capture. In light of these facts, we cannot say that
the Arizona Supreme Court’s determination that Dickens
exhibited a reckless indifference to human life rested on an
objectively unreasonable application of Enmund and Tison.

   II. The Arizona Supreme Court’s decision was not
       based on an unreasonable determination of fact.

    To avoid the bar against granting habeas relief imposed
by § 2254(d)(2), a defendant must show the state court’s
conclusion “to be ‘an unreasonable determination of the facts
in light of the evidence presented in the State court
proceeding.’” Miller-El v. Dretke, 545 U.S. 231, 240 (2005)
(quoting 28 U.S.C. § 2254(d)(2)). A trial court’s findings are
presumed sound unless the defendant rebuts the “presumption
of correctness by clear and convincing evidence.” 28 U.S.C.
§ 2254(e)(1).

    Dickens argues that he is entitled to relief because the
Arizona court’s Enmund/Tison analysis was based on an
unreasonable determination of the facts. More specifically,
Dickens argues that the state court unreasonably determined
that: (1) Amaral was a sufficiently credible witness;
(2) Dickens knew Amaral intended to rob or kill the
Bernsteins; (3) Dickens knew of Amaral’s violent
propensities; and (4) Dickens knew one of the Bernsteins
might still be alive when he left the rest area.
24                        DICKENS V. RYAN

     We reject Dickens’s claim arising from Amaral’s alleged
lack of credibility. To support this claim, Dickens alleges
that Amaral made inconsistent statements, Amaral’s fellow
prisoners gave contradictory testimony, and the jury rejected
Amaral’s testimony about an alleged walkie-talkie
conversation between Dickens and Amaral at the murder
scene.12 Aside from casting doubt on Amaral’s credibility—a
factor which the state court and jury no doubt considered at
trial13—these general allegations do little more than attempt
to relitigate the jury’s factual findings and credit Dickens’s
testimony (over that of Amaral) that he had no part in the
crimes. Because we must “defer to the jury and the [trial]
judge regarding Amaral’s credibility” unless there is
persuasive evidence that any particular determination of fact
was unreasonable, Dickens cannot prevail under § 2254(d)(2)
by raising a general challenge to Amaral’s credibility.
Dickens, 926 P.2d at 490; see United States v. Johnson,
229 F.3d 891, 894 (9th Cir. 2000) (“[W]e are powerless to
question a jury’s assessment of witnesses’ credibility . . . .”
(internal quotation marks omitted)).

    We also reject Dickens’s claims arising from the alleged
insufficiency of evidence at trial. Ample evidence supported
the conclusion that Dickens knew that Amaral intended to rob


  12
     Amaral’s testimony regarding the walkie-talkie conversation (in which
Dickens allegedly instructed Amaral not to leave any witnesses) is
irrelevant because neither the trial court nor the Arizona Supreme Court
relied on this testimony in their discussion of the evidence supporting the
Enmund/Tison findings. See Dickens, 926 P.2d at 490–91.
 13
    For example, the jury did not convict Dickens of premeditated murder
or conspiracy to commit murder, indicating it likely did not believe
Amaral’s testimony that Dickens ordered him to kill the Bernsteins over
a two-way radio.
                     DICKENS V. RYAN                      25

the Bernsteins. Dickens himself testified that he knew about
the robbery. Most significantly, he admitted that he “figured
[Amaral] was going to . . . go over there and rob those
people,” and that Amaral told him he was going to rob the
Bernsteins. Moreover, Amaral testified at length about their
common scheme to commit armed robbery. Dickens has not
explained why the Arizona courts’ reliance on this particular
testimony from Amaral was unreasonable. In light of this
evidence, the Arizona Supreme Court’s determination that
Dickens knew about and agreed to the robbery was not
unreasonable.

    Similarly, the record supports the Arizona courts’
determination that Dickens knew about Amaral’s violent
propensities. Dickens originally met Amaral at the Oak
Grove Institute for violent juveniles. Dickens learned, while
working at Oak Grove, that Amaral was a “high risk” patient,
had battered a nurse, and frequently bragged about carrying
guns and committing violent crimes, including murder. He
further testified that he had personally seen Amaral carrying
guns on several occasions before the September 1991
murders. Lastly, Amaral pointed a .38-caliber revolver at
Dickens’s head on two separate occasions to intimidate him.
One occasion was just prior to the robbery. In light of
Dickens’s own admissions, we cannot say the Arizona
Supreme Court’s determination that Dickens knew of
Amaral’s violent nature was unreasonable.

    Finally, the facts support the Arizona courts’
determination that Dickens “failed to render aid knowing that
one victim might not be dead” and thus exhibited reckless
indifference to human life. Dickens, 926 P.2d at 490.
However, it was not necessary to the Arizona court’s reckless
indifference finding that Dickens knew that “one victim
26                       DICKENS V. RYAN

might not be dead.” In Tison, the U.S. Supreme Court
concluded that the defendants exhibited reckless indifference,
in part, because they “watched the killing” and then “chose to
aid those whom [they] had placed in the position to kill rather
than their victims.” 481 U.S. at 152. Nothing suggests the
defendants in Tison knew anyone had survived. Rather, the
relevant factors were the defendants’ knowledge that victims
had been shot and their decision to aid the shooters over the
victims.

    Dickens, like the Tison defendants, watched Amaral shoot
the Bernsteins, but decided to aid Amaral over the Bernsteins
by picking him up and driving him to his brother’s home.
There is no evidence that Dickens attempted to aid the
Bernsteins, summon medical assistance, or otherwise notify
the authorities. Instead, he helped Amaral. Because
Dickens’s uncontested knowledge of the Bernsteins’
shooting, rather than Bryan’s survival, is the critical factor in
the Enmund/Tison reckless indifference analysis, the Arizona
Supreme Court did not “base” its decision on an unreasonable
determination of the facts. See 28 U.S.C. § 2254(d)(2).14




  14
    Evidence in the record also supports this factual determination. For
example, Amaral testified that Dickens drove through the rest stop to
verify that “everything had been taken care of.” Officers testified that,
when they arrived at the rest stop shortly after the shooting, Bryan
Bernstein was still alive and “thrashing” around in pain. At a minimum,
Dickens failed to provide aid when one victim was, in fact, still alive.
                      DICKENS V. RYAN                         27

    III.    Dickens defaulted on his IAC claim by failing
            to fairly present the claim to the Arizona
            courts, but he may be able to show “cause”
            under Martinez v. Ryan.

    Dickens lastly petitions this court for habeas relief on the
basis of his counsel’s ineffective assistance during
sentencing. Dickens argues his counsel failed to conduct a
thorough investigation of Dickens’s background and prepare
the defense expert with the necessary tools to present
compelling mitigation evidence. Dickens claims that trial
counsel should have obtained and introduced additional
mitigating evidence, including evidence that Dickens suffered
from organic brain damage and FAS.

    “A federal court may not grant habeas relief to a state
prisoner unless he has properly exhausted his remedies in
state court.” Peterson v. Lampert, 319 F.3d 1153, 1155 (9th
Cir. 2003) (en banc) (citing 28 U.S.C. § 2254(b)); see also
Coleman v. Thompson, 501 U.S. 722, 731 (1991)). To
demonstrate that he exhausted his federal habeas corpus claim
in state court, Dickens’s claim presented in state court “must
include reference to a specific federal constitutional
guarantee, as well as a statement of the facts that entitle [him]
to relief.” Gray v. Netherland, 518 U.S. 152, 162–63 (1996).
An unexhausted claim will be procedurally defaulted, if state
procedural rules would now bar the petitioner from bringing
the claim in state court. See Beaty v. Stewart, 303 F.3d 975,
987 (9th Cir. 2002).

    Here, we conclude that Dickens’s claim is procedurally
defaulted, because he never presented it to the state courts
and would now be barred from doing so. However, remand
28                    DICKENS V. RYAN

is appropriate to allow the district court to evaluate whether
Dickens can show cause and prejudice under Martinez.

     A. Background

    Dickens argued to the Arizona trial court that his
sentencing counsel provided ineffective assistance. Dickens
claimed, among other things, that sentencing counsel did not
direct the work of the court-appointed psychologist and did
not adequately investigate Dickens’s background. The trial
court rejected this claim on the merits, finding that sentencing
counsel’s performance was not constitutionally deficient and
that Dickens “failed to demonstrate that he was prejudiced by
any performance of defense counsel.” Considering the same
arguments raised to the trial court, the Arizona Supreme
Court summarily denied Dickens’s Strickland claim on
appeal.

    In federal court, Dickens changed his claim to include
extensive factual allegations suggesting Dickens suffered
from FAS and organic brain damage. Dickens argued that
sentencing counsel’s failure to uncover and present these
specific mitigating conditions amounted to constitutionally
deficient performance. The state argued that Dickens
procedurally defaulted any claim based on these new
allegations by failing to present the allegations and evidence
to the state court.

    The district court agreed with the state’s procedural
default argument. The district court noted that “[f]actual
allegations that were not presented to the state court may
render a claim unexhausted if the allegations ‘fundamentally
alter’” the claim presented to the state court. See Vasquez v.
Hillery, 474 U.S. 254, 260 (1986). The district court also
                      DICKENS V. RYAN                        29

observed that “[n]ew evidence fundamentally alters a claim
if it places the claim in a significantly different and stronger
evidentiary posture than it had in state court.” Aiken v.
Spalding, 841 F.2d 881, 883, 884 n.3 (9th Cir. 1988). The
district court concluded that Dickens’s new allegations and
proffered evidence fundamentally altered his previously
exhausted IAC claim, rendering it “partially unexhausted and
procedurally defaulted.”

    The district court also rejected Dickens’s argument that
ineffective assistance of his post-conviction relief (“PCR”)
counsel constituted “cause” to overcome the procedural
default. The district court reasoned that Dickens had no
constitutional right to effective PCR counsel, making it
insufficient to show cause under Coleman v. Thompson,
501 U.S. 722 (1991). Thus, the district court declined to
reach the merits of Dickens’s “new” IAC claim and denied
Dickens’s request for an evidentiary hearing.

    Dickens challenged the district court’s conclusion
concerning exhaustion and cause before the three judge panel
of this court. The state maintained its position that Dickens
failed to exhaust the “new” IAC claim, rendering it
procedurally defaulted. However, after this case was
submitted, the Supreme Court decided Martinez. In
Martinez, the Court modified “the unqualified statement in
Coleman that an attorney’s ignorance or inadvertence in a
postconviction proceeding does not qualify as cause to excuse
a procedural default.” 132 S. Ct. 1309, 1315 (2012).
Martinez created a narrow exception to Coleman whereby
“[i]nadequate assistance of counsel at initial-review collateral
30                        DICKENS V. RYAN

proceedings may establish cause for a prisoner’s procedural
default of a claim of ineffective assistance at trial.”15 Id.

    The panel ordered the parties to address the effect of
Martinez on Dickens’s “new” IAC claim. The panel rejected
the state’s various arguments that Martinez does not apply to
Dickens’s claim. The panel unanimously decided to remand
the case to the district court to consider whether Dickens
could show cause to overcome his procedural default. For the
reasons stated below, we too conclude that remand is
appropriate under Martinez.

      B. Although Dickens procedurally defaulted his
         “new” IAC claim, Dickens may be able to show
         cause and prejudice under Martinez.

         1. Fair presentation in state court

     As an initial matter, we agree with the district court that
Dickens failed to exhaust his “new” IAC claim. To exhaust
a constitutional claim, the claim must be “fairly present[ed]”
in state court to provide the state courts an opportunity to act
on them. Duncan v. Henry, 513 U.S. 364, 365 (1995) (per
curiam). A claim has not been fairly presented in state court
if new factual allegations either “fundamentally alter the legal
claim already considered by the state courts,” Vasquez,
474 U.S. at 260; Beaty, 303 F.3d at 989–90, or “place the case
in a significantly different and stronger evidentiary posture
than it was when the state courts considered it.” Aiken,



 15
   Martinez defines an initial-review collateral proceedings as “collateral
proceedings which provide the first occasion to raise a claim of ineffective
assistance at trial.” Martinez, 132 S. Ct. at 1315.
                          DICKENS V. RYAN                               31

841 F.2d at 883; accord Nevius v. Sumner, 852 F.2d 463, 470
(9th Cir. 1988).

    In Aiken, the habeas petitioner presented new evidence
consisting of a decibel sound test performed by an expert
which strengthened his claim that the interrogating officers
heard him request counsel. 841 F.2d at 883. The court held
that his right to counsel claim was unexhausted, because the
new decibel evidence “substantially improve[d] the
evidentiary basis for [his] right-to-counsel and voluntariness
arguments, thereby presenting the very type of evidence
which the state should consider in the first instance.”16 Id.

    Similarly, in Nevius, this Court held that a habeas
petitioner failed to exhaust his Batson claim in state court
where he attempted to introduce new and substantial
supporting evidence on appeal. 852 F.2d at 469–70. At oral
argument and in his appellate briefs, Nevius made allegations
concerning comments the prosecutor allegedly made to
defense counsel. The comments, “if proven, might have
presented in a different light the factual issues concerning the
motivation of the prosecutor in exercising his peremptory
challenges.” Id. at 470. However, because the alleged


 16
    Our holdings in Aiken and Nevius are consistent with case law in other
circuits. See, e.g., Smith v. Quarterman, 515 F.3d 392, 402 (5th Cir.
2008) (dismissing habeas petition for failure to exhaust because new
evidence “regarding [petitioner]’s childhood and the effects of his
substance abuse . . . constitute ‘material additional evidentiary support
[presented] to the federal court that was not presented to the state court’”
(citation omitted)); Demarest v. Price, 130 F.3d 922, 938–39 (10th Cir.
1997) (finding failure to exhaust because “new evidence submitted to the
district court by [the petitioner] transformed his ineffective assistance of
counsel claim into one that was ‘significantly different and more
substantial’” (citation omitted)).
32                   DICKENS V. RYAN

remarks were not previously presented in a state court, this
court found that the claims were unexhausted and not
addressable in federal court.

    We conclude that the new allegations and evidence
Dickens presented to the federal district court fundamentally
altered Dickens’s previously exhausted IAC claim. Indeed,
the new evidence creates a mitigation case that bears little
resemblance to the naked Strickland claim raised before the
state courts. There, Dickens did not identify any specific
conditions that sentencing counsel’s allegedly deficient
performance failed to uncover. He only generally alleged that
sentencing counsel did not effectively evaluate whether
Dickens “suffer[ed] from any medical or mental impairment.”
This new evidence of specific conditions (like FAS and
organic brain damage) clearly places Dickens’s Strickland
claim in a “significantly different” and “substantially
improved” evidentiary posture. See Nevius, 852 F.2d at 470;
Aiken, 841 F.2d at 883. As such, the Arizona courts did not
have a fair opportunity to evaluate Dickens’s altered IAC
claim. Therefore, the district court correctly determined that
Dickens’s newly enhanced Strickland claim is procedurally
barred.

       2. Cause and Prejudice under Martinez

   Martinez announced an exception to the longstanding
Coleman rule that ineffective assistance of PCR counsel
cannot establish cause to overcome procedural default.
132 S. Ct. at 1315. The Supreme Court held:

       Where, under state law, claims of ineffective
       assistance of trial counsel must be raised in an
       initial-review collateral proceeding, a
                      DICKENS V. RYAN                          33

       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.

Id. at 1320. As such, to establish “cause” to overcome
procedural default under Martinez, a petitioner must show:
(1) the underlying ineffective assistance of trial counsel claim
is “substantial”; (2) the petitioner was not represented or had
ineffective counsel during the PCR proceeding; (3) the state
PCR proceeding was the initial review proceeding; and
(4) state law required (or forced as a practical matter) the
petitioner to bring the claim in the initial review collateral
proceeding. Trevino v. Thaler, 133 S. Ct. 1911, 1918 (2013).

    Here, there is no dispute with respect to elements (3) and
(4), because Arizona does not permit a petitioner to bring an
IAC claim on direct appeal. Martinez, 132 S. Ct. at 1313,
1320. Arizona law requires a petitioner to bring such a claim
in a collateral review proceeding. Id. The district court,
applying the law as it stood at that time, correctly held that
Dickens could not establish cause for his procedural default
based on the alleged ineffectiveness of his PCR counsel.
However, Martinez may provide a path for Dickens to
demonstrate cause, if he can show the first two Martinez
elements: (1) the claim is substantial and (2) that his PCR
counsel was ineffective under Strickland. Thus, we vacate
the district court’s ruling regarding whether cause existed to
overcome the procedural default of Dickens’s newly-
enhanced claim of ineffective assistance of sentencing
counsel. We remand for the district court to consider the
issue anew in light of Martinez. See Strategic Diversity, Inc.
34                    DICKENS V. RYAN

v. Alchemix Corp., 666 F.3d 1197, 1206 (9th Cir. 2012)
(“Because the district court did not have the benefit of recent
Supreme Court authority, we vacate the ruling on these
grounds and remand.”).

    The state presents various arguments to convince us that
Dickens is not entitled to remand under Martinez and that our
conclusion would contravene Cullen v. Pinholster, 131 S. Ct.
1388 (2011), which the Supreme Court decided during the
pendency of this appeal. We decline to address many of these
arguments based on our remand regarding the applicability
and impact of Martinez. However, we provide guidance to
the district court on the following points: (a) Pinholster’s
potential effect on Dickens’s “new” IAC claim; (b) the effect
of Dickens’s other IAC claims on the “new” claim; and (c)
whether § 2254(e)(2) bars Dickens’s request for an
evidentiary hearing on remand.

           a. Pinholster

    We reject any argument that Pinholster bars the federal
district court’s ability to consider Dickens’s “new” IAC
claim. The state argues that the district court cannot consider
new allegations or evidence proffered for the first time to the
district court. In Pinholster, the Supreme Court made clear
that a federal habeas court may not consider evidence of a
claim that was not presented to the state court. 131 S. Ct. at
1398. However, this prohibition applies only to claims
previously “adjudicated on the merits in State court
proceedings.” Id. at 1401; see also 28 U.S.C. § 2254(d).

   Pinholster does not bar Dickens from presenting evidence
of his “new” IAC claim, because the claim was not
“adjudicated on the merits” by the Arizona courts. While the
                       DICKENS V. RYAN                         35

Arizona courts did previously adjudicate a similar IAC claim,
the new allegations and evidence “fundamentally altered” that
claim, as discussed above. See, e.g., Aiken, 841 F.2d at 883.
Pinholster says nothing about whether a court may consider
a “new” claim, based on “new” evidence not previously
presented to the state courts. See 131 S. Ct. at 1401 n.10.
Indeed, the Pinholster court expressly declined to “decide
where to draw the line between new claims and claims
adjudicated on the merits.” Id. Thus, Pinholster does not
affect earlier cases like Vasquez, Aiken, and Nevius, or a
federal habeas court’s ability to consider new evidence where
the petitioner successfully shows cause to overcome the
procedural default.

            b. Dickens’s “Other” IAC Claims

    We reject the similar argument that Dickens’s other IAC
claims, which were previously “adjudicated on the merits” by
the Arizona Courts, foreclose the new IAC claim. Martinez
allows a petitioner to argue “cause” based on PCR counsel’s
ineffectiveness for counsel’s failure to raise a substantial trial
counsel IAC claim. 132 S. Ct. at 1318–19. Martinez
contains no language limiting this “equitable exception”
simply because a petitioner brought other IAC claims that
were exhausted. See id. Because courts evaluate procedural
default on a claim-by-claim basis, it follows that Martinez
would allow a petitioner to show cause, irrespective of the
presence of other, separate claims.

            c. Dickens’s Request for an Evidentiary
               Hearing

   We also reject the state’s argument that, even if Martinez
applies to the standard for Dickens to show cause,
36                    DICKENS V. RYAN

§ 2254(e)(2) will bar Dickens from introducing the new
evidence to the district court. Petitioners seeking habeas
relief cannot obtain an evidentiary hearing on their claims
unless they comply with § 2254(e)(2). Section 2254(e)(2)
severely restricts a petitioner’s ability to obtain a hearing on
a claim for relief where the petitioner “failed to develop the
factual basis of a claim in State court proceedings” due to “a
lack of diligence, or some greater fault, attributable to the
prisoner or the prisoner’s counsel.” See Lopez v. Ryan,
630 F.3d 1198, 1206 (9th Cir. 2011). A petitioner’s
attorney’s “fault” is generally attributed to the petitioner for
purposes of § 2254(e)(2)’s diligence requirement. See
Williams v. Taylor, 529 U.S. 420, 437–40 (2000).

    Section 2254(e)(2), however, does not bar a hearing
before the district court to allow a petitioner to show “cause”
under Martinez. When a petitioner seeks to show “cause”
based on ineffective assistance of PCR counsel, he is not
asserting a “claim” for relief as that term is used in
§ 2254(e)(2); indeed, such a claim of ineffective assistance of
PCR counsel is not a constitutional claim. See Martinez,
132 S. Ct. at 1319–20. Instead, the petitioner seeks, on an
equitable basis, to excuse a procedural default. See id. A
federal court’s determination of whether a habeas petitioner
has demonstrated cause and prejudice (so as to bring his case
within Martinez’s judicially created exception to the
judicially created procedural bar) is not the same as a hearing
on a constitutional claim for habeas relief. See Coleman,
501 U.S. at 750 (recognizing the “cause and prejudice”
exception to procedural default); Woodford v. Ngo, 548 U.S.
81, 91 (2006) (“[H]abeas law includes the judge-made
doctrine of procedural default”); Dretke v. Haley, 541 U.S.
386, 394 (2004) (describing the “various exceptions to the
procedural default doctrine” as “judge-made rules”).
                           DICKENS V. RYAN                                37

Therefore, a petitioner, claiming that PCR counsel’s
ineffective assistance constituted “cause,” may present
evidence to demonstrate this point. The petitioner is also
entitled to present evidence to demonstrate that there is
“prejudice,” that is that petitioner’s claim is “substantial”
under Martinez. Therefore, a district court may take evidence
to the extent necessary to determine whether the petitioner’s
claim of ineffective assistance of trial counsel is substantial
under Martinez.

    The facts and procedural posture of Dickens’s case
illustrate this point. Dickens had a new claim of ineffective
assistance of counsel. Because the claim was new, it was
procedurally defaulted (thus technically exhausted).
However, if Dickens can show cause and prejudice to excuse
a procedural default, AEDPA no longer applies and a federal
court may hear this new claim de novo. Pirtle v. Morgan,
313 F.3d 1160 (9th Cir. 2002). Martinez may provide a
means to show “cause” to overcome the default and reach the
merits of the new claim. Because § 2254(e)(2) by its terms
does not prevent consideration of the substantive evidence of
the claim to the extent necessary to determine if Dickens has
successfully proven “cause,” Dickens will have a fair
opportunity to show cause and prejudice so as to overcome
the procedural bar of the otherwise defaulted claim. See
Martinez, 132 S. Ct. at 1317.17 Thus, § 2254(e)(2) does not

  17
     The state argues that Martinez does not apply, because the assertion
of ineffective assistance of PCR counsel as cause must itself be exhausted
or it is procedurally barred. It is true that “the exhaustion doctrine . . .
generally requires that a claim of ineffective assistance be presented to the
state courts as an independent claim before it may be used to establish
cause for a procedural default.” Murray v. Carrier, 477 U.S. 478, 488–89
(1986) (citation omitted). However, the case law in light of Martinez now
indicates that there is no requirement that a petitioner assert an ineffective
38                       DICKENS V. RYAN

bar a cause and prejudice hearing on Dickens’s claim of PCR
counsel’s ineffectiveness, which requires a showing that
Dickens’s underlying trial-counsel IAC claim is substantial.

                          CONCLUSION

   For the foregoing reasons, the judgment of the district
court denying Dickens’s petition for writ of habeas corpus is

  AFFIRMED in part, VACATED in part, and
REMANDED.

     The parties shall bear their own costs.



Chief Judge KOZINSKI, with whom Judges BYBEE and
CALLAHAN join, concurring in part:

    I agree with the majority that the Arizona Supreme Court
didn’t unreasonably apply the relevant Eighth Amendment
precedent—Enmund v. Florida, 458 U.S. 782 (1982), and
Tison v. Arizona, 481 U.S. 137 (1987)—in affirming
Dickens’s death sentence. See Maj. Op. Parts I & II. I write


assistance of PCR counsel claim as cause in state court in order to
demonstrate cause in federal court. In Martinez, the first time the
petitioner argued ineffective assistance of PCR counsel was in his federal
habeas petition. See Martinez, 132 S. Ct. at 1314; Martinez v. Schriro,
623 F.3d 731, 734 (9th Cir. 2010), rev’d by Martinez, 132 S. Ct. 1309.
The Supreme Court did not find the claim barred for not being presented
to the state courts. Therefore, where Martinez applies, there seems to be
no requirement that the claim of ineffective assistance of PCR counsel as
cause for an ineffective-assistance-of-sentencing-counsel claim be
presented to the state courts.
                      DICKENS V. RYAN                        39

separately because I believe the Arizona Supreme Court’s
application of Enmund and Tison was more than just
reasonable—it was entirely correct.

    In Enmund, the Supreme Court overturned a getaway
driver’s death sentence because there was no evidence that he
killed, attempted to kill or intended the death of the victim.
Enmund, 458 U.S. at 796–98. As best the record showed,
Enmund was a schmo hired to drive the getaway car for a
robbery gone wrong; there was no evidence that he planned
or otherwise participated in the crime. Id. at 786. Five years
later, Tison held that two brothers who played major roles in
a violent jailbreak and kidnaping could be sentenced to death,
even though the brothers didn’t intend or expect that anyone
would be killed. Tison, 481 U.S. at 158. The Court held that
a major participant in a deadly crime may be sentenced to
death if he acted with reckless indifference to human life. Id.

    Enmund and Tison lay out a simple rule: A felony-
murderer may be death-eligible if he kills intentionally or acts
with reckless indifference. If sentenced under a recklessness
theory, he must also have been a major participant in the
felony that resulted in the victim’s death. Id. The Arizona
Supreme Court found that Dickens didn’t intend to kill but
that he was both recklessly indifferent to human life and a
major participant in the underlying felony. State v. Dickens,
926 P.2d 468, 490 (Ariz. 1996). As I see it, the Arizona
Supreme Court followed Tison to the letter in affirming
Dickens’s death sentence.

    Yet five of my esteemed colleagues find this result to be
not just wrong but unreasonable. See Christen Dissent. For
them, Tison is but a “narrow exception to the Enmund rule”
that only those who kill or intend to kill can be sentenced to
40                    DICKENS V. RYAN

death. Id. at 78. Dickens doesn’t fit into this narrow
exception, my colleagues believe, because his crime was
more like that of Earl Enmund (who, like Dickens, drove the
getaway car) than the Tison brothers. Id. at 74; see also id. at
88. Because Enmund set aside a getaway driver’s death
sentence, my colleagues find it unreasonable to reach a
different result in our case. Id. at 77–78 (“The Arizona
Supreme Court’s decision to affirm the death penalty in
Dickens’s case contravenes clearly established law set out in
Enmund.”).

     But the dissenters’ fact-specific reading of Enmund and
Tison is incorrect: To the extent Enmund suggested that only
intentional murderers may be sentenced to death, Tison
overruled it. More specifically, Tison made clear that
getaway drivers can be sentenced to death; they just can’t be
sentenced to death if all they do is to serve as getaway
drivers. As the Tison Court put it, Enmund prohibits
“imposition of the death penalty for felony murder
simpliciter,” 481 U.S. at 147, but this doesn’t mean a showing
of intent to kill is required in every case; the Eighth
Amendment may also be satisfied by showing reckless
indifference to human life. Id. at 157 (“A narrow focus on
the question of whether or not a given defendant ‘intended to
kill,’ . . . is a highly unsatisfactory means of definitively
distinguishing the most culpable and dangerous of
murderers.”). To conclude that Dickens can’t be sentenced
to death because his conduct more “closely resembles the
actions of Earl Enmund” than the Tison brothers, Christen
Dissent at 74, misses the point of Tison: The State made no
showing that Enmund was reckless because it (mistakenly)
thought he could be sentenced to death on a strict liability
felony-murder theory. Enmund, 458 U.S. at 786.
                      DICKENS V. RYAN                       41

    The evidence shows that Dickens easily satisfies Tison’s
culpability requirements: He planned an armed robbery,
convinced an unstable and violent teenager to carry it out,
watched the crime transpire, picked up his confederate after
the shootings, fled the scene and destroyed evidence. State v.
Dickens, 926 P.2d at 474–75; see also Maj. Op. at 5–10.
More than just technically establishing Dickens’s death-
eligibility, the harrowing facts proved at trial fit squarely
within Tison’s rationale: Such reckless murderers are
“among the most dangerous and inhumane of all,” and their
indifference to human life is “every bit as shocking to the
moral sense as an ‘intent to kill.’” Tison, 481 U.S. at 157. I
therefore agree with the Arizona Supreme Court that
Dickens’s death sentence was appropriate under Tison.

    Nonetheless, eleven thoughtful, conscientious judges
came to (at least) three disparate conclusions on this issue.
See Christen Dissent at 75–89 (state court was unreasonable);
Watford Concurrence (state court was incorrect but
reasonable); Maj. Op. at 14–26 (state court wasn’t
unreasonable); Kozinski Concurrence (state court was
correct). The fact that decades after Tison we still have such
sharp disagreement about what it means suggests that
Enmund is a hazard to navigation and should be overruled.
We can’t do this, but the Supreme Court can and should.



WATFORD, Circuit Judge, concurring:

    I join the majority’s opinion, except to the extent that it
suggests the Arizona Supreme Court correctly applied Tison
v. Arizona, 481 U.S. 137 (1987), and Enmund v. Florida,
458 U.S. 782 (1982), to the facts of Dickens’ case. I agree
42                    DICKENS V. RYAN

with the majority that the Arizona Supreme Court’s
application of those precedents wasn’t “unreasonable” under
28 U.S.C. § 2254(d)(1). As construed by the United States
Supreme Court, § 2254(d)(1) allows us to grant relief only
“where there is no possibility fairminded jurists could
disagree that the state court’s decision conflicts with [the]
Court’s precedents.” Harrington v. Richter, 131 S. Ct. 770,
786 (2011). I view that standard as functionally equivalent to
the standard developed under Teague v. Lane, 489 U.S. 288
(1989); it will seldom (if ever) be satisfied unless the
petitioner shows that the Supreme Court’s cases “dictate the
result” urged by the petitioner. Saffle v. Parks, 494 U.S. 484,
490 (1990). As the majority explains, neither Tison nor
Enmund dictates the result in Dickens’ case. His case falls in
the gap between those two precedents, and fairminded jurists
could expand either Enmund’s general rule or Tison’s
exception to encompass Dickens’ conduct.

    In these circumstances, the Supreme Court has held that
we must give “deference” to the Arizona Supreme Court’s
interpretation of Tison and Enmund, even if we believe the
state court’s interpretation is erroneous. Lockyer v. Andrade,
538 U.S. 63, 75 (2003). Had we been permitted instead to
grant relief based on our own “independent evaluation” of
those precedents, Wright v. West, 505 U.S. 277, 305 (1992)
(O’Connor, J., concurring in the judgment), I would have
held that the Eighth Amendment bars Dickens’ execution.
                     DICKENS V. RYAN                        43

CALLAHAN, Circuit Judge, joined by KOZINSKI, Chief
Judge, and BYBEE, Circuit Judge, concurring and dissenting:

     I concur in parts I and II of the majority opinion’s
discussion. However, I respectfully dissent from part III of
its discussion. The majority fails to recognize that there are
three strikes against Dickens and he should be out of court.
Strike one: Dickens is not eligible for the narrow exception to
the exhaustion requirement that the Supreme Court
recognized in Martinez v. Ryan, 132 S. Ct. 1309 (2012),
because he raised his claim of ineffective assistance of
counsel (“IAC”) in state court and the claim was rejected on
its merits. Strike two: Dickens’s allegations that he suffers
from organic brain damage and Fetal Alcohol Syndrome
(“FAS”) do not amount to a new claim and do not
fundamentally alter the IAC claim that he advanced in state
court and which the state court reasonably rejected. Strike
three: were we to review the performance of sentencing
counsel on its merits, we would have to conclude that counsel
adequately presented mitigating evidence and that even if
there were some failings, they were not prejudicial. We
should affirm the district court’s denial of Dickens’s habeas
petition.

                               I

    The majority opinion fails to appreciate that the
differences in procedural posture between this case and
Martinez renders the Martinez exception inapplicable.

   a. The judicial proceedings in Martinez.

    While his direct appeal was still pending, Martinez began
a state collateral proceeding. Martinez, 132 S. Ct. at 1314.
44                    DICKENS V. RYAN

“Despite initiating this proceeding, [his appointed habeas]
counsel made no claim trial counsel was ineffective and later
filed a statement asserting she could find no colorable claims
at all.” Id. The state trial court gave Martinez notice that he
could file a pro se petition in support of postconviction relief.
Id. Martinez did not respond, and the state trial court
“dismissed the action for postconviction relief, in effect
affirming counsel’s determination that Martinez had no
meritorious claims.” Id. The Arizona Court of Appeals
affirmed Martinez’s conviction, and the Arizona Supreme
Court denied review. Id.

    “About a year and a half later, Martinez, now represented
by new counsel, filed a second notice of postconviction relief
in the Arizona trial court.” Id. The Supreme Court
explained:

        Martinez claimed his trial counsel had been
        ineffective for failing to challenge the
        prosecution’s evidence. He argued, for
        example, that his trial counsel should have
        objected to the expert testimony explaining
        the victim’s recantations or should have called
        an expert witness in rebuttal. Martinez also
        faulted trial counsel for not pursuing an
        exculpatory explanation for the DNA on the
        nightgown.        Martinez’s petition was
        dismissed, in part in reliance on an Arizona
        Rule barring relief on a claim that could have
        been raised in a previous collateral
        proceeding. Martinez, the theory went,
        should have asserted the claims of ineffective
        assistance of trial counsel in his first notice
        for postconviction relief. The Arizona Court
                      DICKENS V. RYAN                       45

       of Appeals agreed. It denied Martinez relief
       because he failed to raise his claims in the
       first collateral proceeding. The Arizona
       Supreme Court declined to review Martinez’s
       appeal.

132 S. Ct. at 1314 (citations omitted).

    Martinez then filed a habeas petition in the District Court
for the District of Arizona. That court “denied the petition,
ruling that Arizona’s preclusion rule was an adequate and
independent state-law ground to bar federal review.” Id. at
1315. We affirmed, relying “on general statements in
Coleman that, absent a right to counsel in a collateral
proceeding, an attorney’s errors in the proceeding do not
establish cause for a procedural default.” Id. The Supreme
Court granted certiorari and issued its opinion in Martinez.

   b. The judicial proceedings in Dickens’s case.

     The procedural posture for Dickens is different. On direct
appeal, the Arizona Supreme Court affirmed his conviction
and sentence. State v. Dickens, 926 P.2d 468 (Ariz. 1996).
In August 1999, Dickens filed an action for postconviction
relief (“PCR”) in the state trial court. In October 2000, the
trial court issued a 33-page order denying relief. Most of the
order addressed the nine allegations of IAC by trial and
appellate counsel, which included a claim that Dickens “was
denied the effective assistance of counsel in the penalty
stage.” Dickens presented a mitigation specialist who testified
that, in her opinion, defense counsel’s preparation for the
mitigation and sentencing phase was inadequate and
unreliable. The trial court disagreed, writing:
46                   DICKENS V. RYAN

       The record reflects that defense counsel
       effectively elicited the testimony of mental
       health experts, family members and support
       witnesses who were well qualified and
       credible.       Defense counsel presented
       numerous mitigating factors at the sentencing
       hearing. The performance of defense counsel
       is not to be judged by the outcome. Of course
       a person, exercising hindsight, can urge that
       more should have been done, however, under
       the circumstances at the time, defense
       counsel’s assistance to Petitioner both in trial
       and during the penalty phase was
       professional, reasonable and effective. Most
       certainly, it did not fall to the level of
       ineffective assistance of counsel as set forth in
       Strickland. Further, Petitioner has failed to
       demonstrate that he was prejudiced by any
       performance of defense counsel.

       Concluding on this claim, it is noted that it
       was the defendant/Petitioner’s conduct, state
       of mind and participation in these crimes that
       led to the jury verdicts and the sentence
       imposed. It was not any inadequacy upon the
       part of either trial counsel or appellate
       counsel.

Dickens filed a petition for review with the Arizona Supreme
Court, which the court summarily denied.

    Dickens then filed a habeas petition in the District Court
for Arizona. On July 14, 2008, the district court denied the
petition in a 145-page decision. Among the claims the court
                     DICKENS V. RYAN                       47

considered and denied was Dickens’s claim of IAC by trial
counsel (Claim 19). The district court carefully considered
the performances of both trial counsel and PCR counsel and
concluded that trial counsel’s performance at sentencing was
neither deficient nor prejudicial.

   c. Analysis.

     A comparison of the cases’ procedural postures reveals
why the Martinez exception is not available to Dickens. In
Martinez, (1) Martinez’s claim of trial counsel IAC was not
raised in his first state PCR petition; (2) it was raised in a
second state PCR petition which the state court held to be
procedurally barred; and (3) the second state PCR petition
presented evidence of IAC by trial counsel. In contrast:
(a) Dickens’s claim of trial counsel IAC was raised and
denied on its merits by the state court in his first PCR
petition; (b) Dickens never raised the claim of PCR counsel’s
alleged IAC in a state court; and (c) Dickens’s assertion that
trial counsel should have investigated whether he suffered
from FAS and organic brain damage was raised for the first
time in his federal habeas petition and has never been
presented to a state court.

    These differences disqualify Dickens from the Martinez
exception on two grounds. First, unlike Martinez, whose trial
counsel IAC claim was held to be procedurally defaulted by
the state courts, Dickens did raise his claims of IAC by trial
counsel in his first state PCR petition, and the claim was
rejected on its merits. Second, unlike Martinez, Dickens has
not sought to raise his “new” claim of trial counsel IAC in
48                        DICKENS V. RYAN

any second or successive state PCR petition.1 Because
Dickens’s claim was not deemed procedurally barred by the
Arizona state courts, he does not need, and cannot qualify for,
the Martinez exception to the general rule that on a habeas
petition a federal court will not consider an issue that was not
raised in state court.

    The requirement that a state prisoner first raise his claims
in state court was emphasized by the Supreme Court in
Cullen v. Pinholster, 131 S. Ct. 1388 (2011). The Court held
that “review under § 2254(d)(1) is limited to the record that
was before the state court that adjudicated the claim on the
merits,” and stressed that this ruling was “compelled by the
broader context of the statute as a whole, which demonstrates
Congress’ intent to channel prisoners’ claims first to the state
courts.” 131 S. Ct. at 1398–99 (internal quotation marks
omitted). The Court specifically noted that “[i]t would be
contrary to that purpose to allow a petitioner to overcome an
adverse state-court decision with new evidence introduced in
a federal habeas court and reviewed by that court in the first
instance effectively de novo.” Id. at 1399.

     The remand in Martinez did not violate the law or spirit
of Pinholster because Martinez had presented his claim of
trial counsel ineffectiveness to a state court in his second PCR
petition (that the state court had held was procedurally
defaulted). See Martinez, 132 S. Ct. at 1314. Moreover, his


 1
    The majority asserts that “the first time [Martinez] argued ineffective
assistance of PCR counsel was in his federal habeas petition.” Maj. at 38
n.17. However, at a minimum, the alleged IAC of PCR counsel was
implicit in Martinez’s second state habeas petition. Certainly the factual
basis for seeking an exception to the procedural bar was presented to the
state court. See Martinez, 132 S. Ct. at 1314.
                          DICKENS V. RYAN                              49

initial PCR counsel’s ineffectiveness was apparent from the
state court record, as she had filed a statement asserting that
she could find no colorable claim to raise in the PCR petition
that she had filed for Martinez. Id. Thus, when Martinez was
remanded, the district court could determine on the record
presented to the state courts whether Martinez’s first PCR
counsel had been ineffective, and whether his claim of trial
IAC was substantial. Id. at 1321. In contrast, although
Dickens raised his mental health as a mitigating factor, there
is nothing in the state court record supporting Dickens’s “new
claims” of organic brain damage and FAS.

     Thus, under Pinholster, the federal courts may not
consider Dickens’s unexhausted IAC claim.2 This does not
necessarily mean that Dickens is without a course of action.
Dickens may still file a successive PCR petition in the state
court alleging IAC by trial counsel and initial PCR counsel.
If the state courts were to deny Dickens relief on the ground
that the claim was procedurally defaulted, then he could file
a federal habeas petition and argue for the application of the
Martinez exception.3 This process ensures that state courts

  2
    To the extent that Dickens contends that his trial counsel IAC claim
was exhausted (as he initially did), the district court had jurisdiction to
consider it. However, the district court’s careful consideration of the IAC
claim persuasively shows that Dickens cannot prevail under the AEDPA
standard. As set forth in section III, infra, I agree that Dickens has not
shown that trial counsel’s performance met either the performance or the
prejudicial prong of the standard for IAC set forth in Strickland v.
Washington, 466 U.S. 668 (1984).
 3
   Of course, Dickens might be required to explain why he did not file his
successive petition earlier. One response might be that until the Supreme
Court decided Martinez, he was barred by Coleman v. Thompson,
501 U.S. 722 (1991), from obtaining relief based on PCR counsel’s
ineffectiveness.
50                        DICKENS V. RYAN

get the first crack at new claims while preserving the
defendant’s ability to file a federal habeas petition if relief is
denied.

    This procedure was followed in Trevino v. Thaler, 133 S.
Ct. 1911 (2013), in which the Supreme Court expanded
Martinez to apply to states which permit defendants to raise
IAC in direct appeals but prefer that they do so in PCR
petitions. Id. at 1915. In Trevino, the federal habeas petition
“claimed for the first time that Trevino had not received
constitutionally effective counsel during the penalty phase of
his trial.” Id. The district court then “stayed proceedings to
permit Trevino to raise this claim in state court.” Id. at 1916.
Trevino did so, but the Texas court concluded that because he
“had not raised this claim during his initial postconviction
proceedings, he had procedurally defaulted the claim.” Id.
Trevino returned to the federal court which denied relief
leading ultimately to the Supreme Court’s opinion. Thus, in
both Martinez and Trevino, state courts determined, prior to
the federal courts’ rulings on the federal petitions, that the
defendants’ IAC claims were procedurally barred.

    In contrast, the majority opinion, by allowing a state
defendant to raise a “new” IAC claim for the first time in his
federal petition, not only assumes that the state court would
find the claim to be procedurally barred,4 but also creates an

  4
    The parties have informed us through letters submitted pursuant to
Federal Rule of Appellate Procedure 28(j) that there are now decisions by
superior courts in Arizona and by the Court of Appeals of Arizona,
Division 2, holding that Martinez does not change Arizona law. While
these may reflect Arizona law as it is, they are not binding on the Arizona
Supreme Court and, of course, the state courts have not had an opportunity
to fully consider the Supreme Court’s recent opinion in Trevino.
Furthermore, a review of the cases cited by the parties suggests that courts
                          DICKENS V. RYAN                               51

incentive for the defendant not to raise an IAC claim in his
state PCR petition if he thinks the federal courts will be more
receptive to his claim. Why wouldn’t a defendant hold back
or forego developing one claim in his first postconviction
petition in the hope that he may earn another round of
postconviction proceedings by raising it for the first time in
his federal habeas petition? The majority’s approach
encourages state defendants to concoct “new” IAC claims
that are nothing more than fleshed-out versions of their old
claims supplemented with “new” evidence. This cannot have
been the Supreme Court’s intention, nor is it an unintended
but inherent consequence of the Supreme Court’s opinions in
Martinez and Pinholster. To the contrary, Pinholster requires
that a defendant first raise his claim of trial counsel IAC in
state court, and Martinez provides that when defendant does
this, the state court’s determination that the successive PCR
petition is procedurally barred will not prevent federal court
review when the failure to raise trial counsel IAC in the initial
PCR petition was due to PCR counsel’s IAC. Thus, Martinez
is, and should be construed as, only “a narrow exception” to
the preclusion rule.5 See Martinez, 132 S. Ct. at 1315.


may have determined that there was no merit to the particular petitioners’
Martinez claims, rather than ruling that an otherwise meritorious claim of
trial counsel IAC would not be considered. Of course, the Arizona courts
may determine whether as a matter of state law they will modify their
preclusion rule in light of Martinez and Trevino. However, we should not
presume that they will forego considering an otherwise meritorious claim
of trial counsel IAC that postconviction counsel failed to raise in favor of
having the claim considered by a federal court in the first instance.
 5
   I have no quarrel with the statement in the plurality opinion in Detrich
that the Martinez exception may apply where PCR counsel raised some
issues of trial counsel IAC, but not the new substantial claim of trial
counsel IAC that he seeks to raise for the first time in his federal habeas
petition. See Detrich v. Ryan, ___ F.3d ___, 2013 WL 4712729, *8–10
52                        DICKENS V. RYAN

Dickens raised his claim of trial counsel IAC in state court
and it was rejected on the merits. He does not qualify for the
Martinez exception.

                                    II

    Even if the Martinez exception were applicable to
Dickens’s case, I would affirm the district court’s denial of
the writ because the record shows that Dickens has not raised
a new claim.

    We all agree that Dickens did not present his allegations
of organic brain damage and FAS to the state courts. The
majority, however, then leaps to the conclusion that Dickens
therefore has “defaulted on his IAC claim.” This conclusion
overlooks the facts that Dickens did raise claims of IAC at the
sentencing stage based on his alleged mental health issues,
and that the state court rejected those claims on the merits.


(9th Cir. 2013) (en banc). Here, as set forth infra, Dickens has not raised
a new substantial claim of trial counsel IAC separate from the claims
rejected on their merits by the state courts. However, where such an
assertion is made, because there has been no state court determination that
the new claim is procedurally barred, the district court should adhere to
the procedure followed in Trevino, and stay proceedings to permit the
petitioner to attempt to raise the new claim in state court. See Trevino,
133 S. Ct. at 1916.

     In our case, Arizona has represented that it would be futile for
Dickens to present his current IAC claim to the Arizona courts. Thus,
Arizona may well have waived any argument that Dickens’s current IAC
claim is not procedurally barred. See Trest v. Cain, 522 U.S. 87, 89
(1997); Lynce v. Mathis, 519 U.S. 433, 436–37 n.4 (1997); Gray v.
Netherland, 518 U.S. 152, 165–66 (1996). This possibility is not
dispositive, however, because as explained in Sections II and III of this
dissent, Dickens’s claim is neither new nor meritorious.
                     DICKENS V. RYAN                       53

Moreover, under our case law, Dickens’s new allegations do
not constitute a new claim. Thus, because Dickens’s claim of
trial counsel IAC was raised and rejected on the merits in his
state PCR petition, the Martinez exception is not available to
Dickens.

            In his PCR petition in the state superior
       court, Dickens alleged that he had received
       IAC at the sentencing stage. PCR counsel
       called as a witness a mitigation specialist who
       testified that defense counsel’s preparation for
       the mitigation and sentencing phase was
       inadequate and unreliable. The district court
       in its decision noted that Dr. Roy, the clinical
       psychologist who assisted Dickens’s counsel,
       testified that defense counsel gave him
       everything he needed to start an investigation
       and did not place any limits on his work. The
       district court further noted that trial counsel
       had been aware of the significance of the
       sentencing stage of trial, had secured the
       cooperation of Dickens and his family, had
       access to school and medical records, and had
       considered numerous possibilities of
       neurological impairment, but that trial counsel
       had concluded that “neurological testing did
       not establish an organic basis.” The district
       court further rejected arguments that defense
       counsel’s performance was below prevailing
       professional norms, noting that counsel had
54                          DICKENS V. RYAN

           properly informed Dr. Roy and reasonably
           relied on his advice.6

    Dickens’s present claim of trial counsel IAC simply adds
additional factual allegations to his initial claim of trial
counsel IAC. In state court, Dickens argued that counsel’s
preparation was inadequate. He continues to so argue, but
now offers the additional allegation that, had counsel
conducted an adequate investigation, he would have learned
that Dickens suffered from organic brain damage and FAS.

    But additional factual allegations do not state a new
claim. In Weaver, we “acknowledge[d] that the precise
factual predicate for Weaver’s claim changed after the district
court conducted its evidentiary hearing,” but concluded that
“new factual allegations do not render a claim unexhausted
unless they ‘fundamentally alter the legal claim already
considered by the state courts.’” Weaver v. Thompson,
197 F.3d 359, 364 (9th Cir. 1999) (quoting Chacon v. Wood,
36 F.3d 1459, 1468 (9th Cir. 1994). Similarly, here, although
“the precise factual predicate” of Dickens’s IAC claim
changed to specifically allege that he suffers from organic
brain damage and FAS, his legal claim of IAC remains the
same: counsel was ineffective because he failed to adequately


 6
     The district court stated:

           Petitioner’s complaint that counsel did not provide
           enough information or guidance to Dr. Roy is not
           supported by the record. It is evident that counsel,
           recognizing the significance of the penalty stage of
           trial, investigated Petitioner’s background and
           presented the relevant information to Dr. Roy and
           offered it to the trial court in his sentencing
           memorandum and through expert and lay testimony.
                         DICKENS V. RYAN                             55

investigate Dickens’s mental health. There would be no end
to litigation if every new allegation as to what counsel would
have found had he properly investigated a defendant’s
background constituted a “new” claim.7

    Moreover, the record shows that Dr. Roy did consider
brain damage, and his report noted that Dickens’s mother
consumed wine at least three times per week while she was
pregnant with Dickens. The record reflects that Dickens has
not raised a new claim.




  7
    This concern is illustrated by our recent decision in Schad v. Ryan,
732 F.3d 963 (9th Cir. 2013). There we rejected petitioner’s contention
that he was presenting a “new” issue of trial counsel IAC. We noted:

         Schad’s principal contention is that the district court
         erred because he is presenting a different ineffective
         assistance claim than that presented in state court. He
         is now contending that the federal claim of counsel
         ineffectiveness with respect to the effect of childhood
         abuse is somehow distinct from the earlier claim of
         ineffectiveness in failing to investigate the childhood
         abuse itself. The two cannot be so easily separated,
         however, because the relevant mitigating factor in
         sentencing was always the effect of the childhood abuse
         on his adult mental state.

Id. at 966. Similarly, Dickens’s “new” assertion is based on what he now
contends trial counsel would have learned if he had adequately
investigated his mental health, but Dickens’s underlying claim, which was
rejected by the state courts, was and is that trial counsel failed to
adequately investigate his mental health.
56                         DICKENS V. RYAN

    Because Dickens has not raised a new claim, we must
view his IAC claim through the AEDPA lens.8 This means
that for relief on his federal habeas petition, Dickens must
show that the state court’s denial of claim of IAC was an
unreasonable application of clearly established Federal law,
or an unreasonable determination of the facts. 28 U.S.C.
§ 2254(d); see Harrington v. Richter, 131 S. Ct. 770, 785
(2011). As further demonstrated in the following section, the
state court’s denial of Dickens’s claim of trial counsel IAC is
neither an unreasonable application of Federal law nor an
unreasonable determination of the facts.

     The majority, however, relies on two pre-AEDPA cases,
Aiken v. Spalding, 841 F.2d 881 (9th Cir. 1988), and Nevius
v. Sumner, 852 F.2d 463 (1988), to argue that Dickens has
fundamentally altered his legal claim of IAC. This argument
is not persuasive. In Aiken, the petitioner sought to present
for the first time in his federal habeas petition “decibel-level”
evidence to support his claim that he had requested counsel
during his interrogation. Id. at 883. We held that this was the
“very type of evidence which the state should consider in the

 8
   Indeed, in his opening brief, filed before the Supreme Court’s opinion
in Martinez, Dickens argued that he:

         alleged that his trial counsel failed to conduct the
         necessary background mitigation investigation and
         therefore did not adequately prepare defense expert, Dr.
         Roy. This was the same claim that he raised in his
         federal habeas proceedings with the exception of
         additional factual support for the claim – namely that
         Dickens suffers from FAS and organic brain damage.

In his brief, Dickens argues that because he exhausted his remedies in
state court, “the district court was required to consider the additional facts
in support of his claim.”
                      DICKENS V. RYAN                       57

first instance,” and accordingly directed the district court to
dismiss the habeas petition without prejudice for failure to
exhaust state remedies. Id. at 883–84. Like the decibel-level
evidence in Aiken, the evidence that Dickens suffers from
organic brain damage and FAS is “the very type of evidence
which the state should consider in the first instance.’” Id. at
883.

     In Nevius, the defendant sought to challenge the
prosecutor’s seven peremptory challenges, excluding
minorities from the jury. 852 F.2d at 466. At oral argument
in the district court on his habeas petition, Nevius’s counsel
made serious allegations concerning alleged comments by the
prosecutor to the defense counsel that were made after the
trial.    Id. at 469–70.         We recognized that these
representations, “if proven, might have presented in a
different light the factual issues concerning the motivation of
the prosecutor in exercising his peremptory challenges.” Id.
at 470. Nonetheless, we declined to consider the remarks,
noting:

       The alleged remarks, however, are not part of
       any record in this case. They have not been
       presented to the state courts, either on appeal
       or during post-conviction proceedings. In
       habeas proceedings, the federal courts are not
       free to entertain new evidence that places the
       claim in a significantly different posture,
       when that evidence was never presented to the
       state courts.

Id. We concluded that “[if] there is evidence that should be
presented to the state courts, then the attempt must first be
made to present it there and to make a record. Only
58                       DICKENS V. RYAN

thereafter, under the appropriate procedural strictures may the
matter be addressed in federal court.” Id. (footnote omitted).

    The majority asserts that because we held in Aiken and
Nevius that the new evidence should have been presented to
the state courts, the new evidence must have stated a new or
altered claim. But this is mixing apples and oranges. A state
prisoner seeking federal habeas relief must present all new
evidence to the state courts, regardless of whether the new
evidence supports his existing claim, places the claim in a
different light, or creates a new claim. See Aiken, 841 F.2d at
883. Whether or not Nevius’s allegations created a new
claim, he had to present the facts to the state courts.
Similarly, even if Aiken’s decibel-level evidence only
improved “the evidentiary basis for Aiken’s right-to-counsel
and voluntariness arguments,” Aiken, 841 F.2d at 883, and
did not state a new claim or fundamentally alter the nature of
his claims, the evidence had to be submitted to the state
courts in the first instance. Thus, neither Aiken nor Nevius
provides much guidance on what constitutes a “new” claim.9
Instead, we should apply our more recent standard set forth
in Weaver: “new factual allegations do not render a claim
unexhausted unless they ‘fundamentally alter the legal claim
already considered by the state courts.’” 197 F.3d at 364
(quoting Chacon, 36 F.3d at 1468).

    Furthermore, the majority seeks to use Aiken and Nevius
for the exact opposite purpose for which they were decided.
Aiken and Nevius, although pre-AEDPA cases, sought to


 9
   In addition, we have questioned the continuing validity of cases such
as Aiken and Nevius following the issuance of the Supreme Court’s
opinion in Pinholster. See Stokley v. Ryan, 659 F.3d 802, 808 (9th Cir.
2011).
                            DICKENS V. RYAN                              59

reinforce the standard that newly discovered evidence had to
be presented in the first instance in the state courts.10 Aiken,
841 F.2d at 883. Here, the majority seeks to characterize
Dickens’s new allegations as fundamentally altering his
previously exhausted IAC claim precisely to excuse his
failure to present those allegations to the state courts and to
allow him to present them for the first time in the federal
district court.

    This is contrary to the spirit of Aiken and Nevius, and
most importantly, contrary to AEDPA. Title 28 U.S.C.
§ 2254(e)(2) limits when a federal court may hold an
evidentiary hearing on a state prisoner’s federal habeas
petition.11 The majority’s holding circumvents AEDPA by


  10
    In Aiken, we reiterated the Fifth Circuit’s statement in Dispensa v.
Lynaugh, 826 F.2d 375, 377 (5th Cir. 1987), that:

           [Where] a federal habeas petitioner presents newly
           discovered evidence or other evidence not before the
           state courts such as to place the case in a significantly
           different and stronger evidentiary posture than it was
           when the state courts considered it, the state courts
           must be given an opportunity to consider the evidence.

Aiken, 841 F.2d at 883 (alteration in original).
 11
       28 U.S.C. § 2254(e)(2) reads:

           If the applicant has failed to develop the factual basis of
           a claim in State court proceedings, the court shall not
           hold an evidentiary hearing on the claim unless the
           applicant shows that--

           (A) the claim relies on--

           (i) a new rule of constitutional law, made retroactive to
60                      DICKENS V. RYAN

providing a state prisoner an evidentiary hearing without
inquiring into whether the new claim could or should have
been previously raised. See § 2254(e)(2)(A)(ii). Instead, the
prisoner need only convince a federal court that his claim of
IAC on the part of his PCR counsel is new. He, apparently,
is then entitled to an evidentiary hearing, at least to determine
whether his PCR counsel was actually ineffective and
whether his claim of trial counsel IAC is substantial.
Majority at p. 33. This creates another unnecessary,
expensive, and improper layer to federal court review of state
sentences.

     Although I agree with the majority that the “Arizona
courts did not have a fair opportunity to evaluate Dickens’s
altered IAC claim,” Majority at p. 32, it does not follow that
Dickens’s new allegations constitute a new claim subject to
the application of the Martinez exception. Rather, because
Dickens’s new factual allegations do not fundamentally alter
his legal claim of sentencing counsel IAC, which was rejected
by the Arizona courts on its merits, federal court review is
subject to and limited by AEDPA. In sum, Dickens has not
raised a new legal claim.



        cases on collateral review by the Supreme Court, that
        was previously unavailable; or

        (ii) a factual predicate that could not have been
        previously discovered through the exercise of due
        diligence; and

        (B) the facts underlying the claim would be sufficient
        to establish by clear and convincing evidence that but
        for constitutional error, no reasonable factfinder would
        have found the applicant guilty of the underlying
        offense.
                          DICKENS V. RYAN                              61

                                    III

   Finally, even if I thought that the Martinez exception
applied to this case and that Dickens had raised a new claim,
I would still affirm the district court’s denial of the writ
because the record compels a determination that Dickens
cannot show “cause” and “prejudice” required for relief for
IAC under Strickland, 466 U.S. at 687–96.

     In Martinez, the Supreme Court held that a prisoner may
establish default on an IAC claim “where appointed counsel
in the initial-review collateral proceeding, where the claim
should have been raised, was ineffective under the standards
of Strickland.” 132 S. Ct. at 1318. In addition, the prisoner
“must also demonstrate that 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.” Id.

    The record compels the conclusion that Dickens was not
denied effective assistance of sentencing counsel in regard to
his “new” claims of organic brain damage and FAS.12 The

  12
     Dickens argues that his PCR counsel were ineffective because they
allegedly focused on claims of judicial bias instead of “investigating and
presenting meritorious issues. Dickens complains that counsel “put on no
lay or expert witness to show what evidence would have been presented
had trial counsel properly investigated mitigation and adequately prepared
Dr. Roy for sentencing.” The district court disagreed with Dickens, noting
that in the PCR proceeding, counsel argued that sentencing counsel “did
not adequately prepare Dr. Roy or investigate Petitioner’s background for
mitigating information, particularly with respect to mental impairment.”
Although the record appears to support the district court’s perspective, we
need not evaluate the performance of PCR counsel when sentencing
counsel’s performance was adequate. See Martinez, 132 S. Ct. at 1318
(“[A] prisoner must also demonstrate that the underlying ineffective-
62                        DICKENS V. RYAN

district court carefully reviewed the record of Dickens’s
sentencing and concluded that counsel was competent. I
agree. Moreover, there is nothing in the record to suggest
that sentencing counsel knew or should have known that
Dickens possibly suffered from organic brain damage and
FAS. Thus, even if Dickens’s allegations are taken at face
value, the record will not support a finding of “some merit”
in his claims.

     The district court’s determinations are not binding but are
illustrative. It noted:

         The [trial] court held a five-day sentencing
         hearing during which defense counsel called
         seven witnesses on Petitioner’s behalf. After
         the hearing counsel submitted a 76-page
         sentencing memorandum. Counsel listed
         n u merous nonstatut ory m i t i gat i ng
         circumstances, including Petitioner’s
         diagnosis of borderline personality disorder
         with narcissistic features; a “troubled
         childhood” that featured “substantial sexual
         abuse and molestation, which gravely affected
         [his] development”; and his failure to receive
         necessary mental health treatment.

In order to counter the aggravating factors advanced by the
State, trial counsel “emphasize[d] Petitioner’s allegedly
nonviolent nature and passive role in the murders.” Counsel
enlisted the assistance of Dr. Roy, a clinical psychologist who


assistance-of-trial-counsel claim is a substantial one.”). If trial counsel’s
performance was adequate, the petitioner cannot have been prejudiced by
PCR’s counsel’s alleged failure to challenge trial counsel’s performance.
                     DICKENS V. RYAN                      63

evaluated Dickens and prepared a 59-page report. Dr. Roy’s
report “contained 27 pages of background information,
detailing Petitioner’s childhood, education, medical and
psychological history, employment background and legal
history.” Dr. Roy interviewed Dickens’s parents and his
mentor. Dr. Roy’s report included information on Dickens’s
“reports of sexual abuse, head injuries, and the fact that
Petitioner’s mother drank alcohol while she was pregnant
with Petitioner.”

   Dr. Roy’s report recommended neurological
examinations, including EEG and MRI exams. However, at
an October 1993 hearing, counsel, after consulting with Dr.
Roy, informed the court that in light of a CT scan, he no
longer had reason to be concerned with Dickens’s cerebral
function.

   Dr. Roy spent over 15 hours interviewing and testing
Dickens. He then testified extensively at the sentencing
hearing. The district court explained:

       [Dr. Roy] diagnosed Petitioner with major
       depression, severe; mixed personality, with
       borderline narcissistic features; and suspected
       mild traumatic brain injury.          Dr. Roy
       described the antecedent of Petitioner’s
       depression as his “near annihilation on a
       regular basis during his childhood.” Dr. Roy
       testified that Petitioner was physically and
       sexually abused by his brother, abuse which
       was corroborated by Petitioner and his
       mother. This experience affected Petitioner’s
       ego development and prevented normal
       psychosocial development.           Petitioner’s
64                 DICKENS V. RYAN

     “primary experience of the world was being
     victimized,” and the resulting stress caused
     Petitioner to regress to a fixated state. Dr.
     Roy further testified that Petitioner was
     sexually abused by a “trusted family friend” at
     age six or seven; by “another adult in a
     position of authority,” a teacher at age 12, 13,
     or 14; and by a law enforcement official.
     These experiences “impinge[d] his identity.”
     However, according to Dr. Roy, despite these
     experiences Petitioner did not develop
     aggression. Rather, he dealt with his inner
     conflicts – “attempted to undo the trauma to
     him” – by helping youthful offenders.
     Unfortunately, Petitioner lacked “emotional
     ability” and experienced a “loss of ego
     boundary” which caused him to engage in
     sexual activities with underage males.
     Nonetheless, Dr. Roy determined that
     Petitioner did not meet the criteria for having
     violent propensities and his sexual activities
     with juveniles did not constitute violence.
     According to Dr. Roy, Petitioner was able to
     develop “observational capacity” and show
     empathy for children who had been abused.
     However, in attempting to “eliminate his
     conflicts” and “find appropriate discharge,”
     Petitioner acted out his abuse, repeating the
     cycle and identifying with both victim and the
     aggressor. Dr. Roy testified that Petitioner’s
     emotional age when having sex with juvenile
     males was 14–16.
                         DICKENS V. RYAN                             65

    Dr. Roy testified in support of various mitigating factors.
He asserted that Dickens: (a) had the potential for
rehabilitation; (b) possessed a “borderline character structure”
but not an antisocial personality disorder; (c) had no history
of violence; (d) was not a danger to others (except possibly
teenage boys); (e) had close family ties; and (f) was
considered “a valued and diligent employee and a high
achiever.” Dr. Roy “also testified that Petitioner’s traumatic
childhood was a mitigating circumstance, as was his failure
to receive needed psychological care.”

    Dr. Roy noted that Dickens’s slow processing time on
some tests, history of head trauma, emotional confusion,
concentration problems, and headaches raised the possibility
that Dickens suffered from brain damage. Dr. Roy, however,
noted “that a CT Scan and EEG were administered and the
results were ‘clear’” and that some of the tests he had
administered “did not support a finding of organicity.”13
Nonetheless, Dr. Roy did not think Dickens was malingering.
Moreover, Dr. Roy testified that Dickens had lacked the
intent to kill the Bernsteins.14

    Sentencing counsel also called Dickens’s older brother
who testified that Dickens was frequently beaten by his older
brothers and was very remorseful for the victims of the


 13
   The district court further determined that sentencing counsel “did not
ignore or overlook evidence of possible brain damage,” because although
Dr. Roy noted that Dickens showed symptoms of neurological
impairment, “neurological testing did not establish an organic basis.”
  14
     Dr. Roy also testified in detail about Amaral, who was Dickens’s
partner in crime and actually shot the victims. He thought that Amaral
had a psychopathic personality and had controlled and manipulated
Dickens.
66                    DICKENS V. RYAN

shooting. Counsel also called Michael O’Connor, a sheriff’s
sergeant from San Diego, who testified that when Dickens
was referred to the Juvenile Intervention Diversion Program
following a drug offense, he had worked well with the kids
for five years. In addition, counsel called a psychologist who
had examined Amaral and Dickens’s mother. Counsel also
called a family friend, who testified that Dickens “loved his
mother, enjoyed helping out adults and was always busy with
chores.”

    In support of its conclusion that “counsel’s performance
at sentencing was neither deficient nor prejudicial,” the
district court found that sentencing counsel had been aware
of the significance of the sentencing stage of the trial. The
court found no factual basis for the allegation that counsel
had failed to provide Dr. Roy with sufficient information or
guidance. It also found no basis for questioning counsel’s
decision to retain and rely on Dr. Roy, “an experienced
clinical psychologist who had testified regarding mitigation
on previous occasions.” The court observed that even if “Dr.
Roy was not prepared to testify, or if his testimony was not
persuasive, it was not the fault of defense counsel.”

    Having determined that sentencing counsel had performed
adequately, the district court buttressed its denial of relief by
also finding that Dickens could not meet the second prong of
Strickland – that is, he could not show prejudice. The district
court’s conclusion was based on the scope and depth of the
mitigating case presented, as well as distinguishing trial
counsel’s performance from the performances addressed in
                          DICKENS V. RYAN                               67

recent decisions of the Supreme Court.15 The court
determined that unlike the situations presented in those cases,
Dickens’s “claim of prejudice arising from counsel’s
investigation into mitigating circumstances and handling of
Dr. Roy is not supported by the record.” The district court
opined: “[w]hether or not counsel should have provided Dr.
Roy with additional information or direction, given the
evidence that was presented in mitigation there was not a
reasonable probability of a different sentence if counsel had
taken a different approach to his mitigation case or more
thoroughly prepared Dr. Roy as a witness.” The court also
commented that Dickens “failed to identify a significant
disparity between the evidence that could have been
presented at sentencing and the evidence that counsel did
present.”

    Finally, the district court observed that Dickens was not
prejudiced by counsel’s performance at sentencing because
“the same judge presided over both Petitioner’s trial and


   15
      The district court distinguished the cases of Rompilla v. Beard,
545 U.S. 374 (2005), Wiggins v. Smith, 539 U.S. 510 (2003), and Williams
v. Taylor, 529 U.S. 362 (2000), based on the amount of mitigating
evidence that counsel failed to present at sentencing. See Rompilla,
545 U.S. at 391–93 (counsel failed to present evidence of alcoholic and
violent parents, extreme poverty, isolation, and reduced cognitive
capabilities); Wiggins, 539 U.S. at 535 (counsel failed to present evidence
of abusive alcoholic mother, physical and sexual abuse in foster care, and
diminished mental capabilities); Williams, 529 U.S. at 395–96 (counsel
failed to present evidence of parents’ imprisonment for criminal neglect,
abusive foster home, reduced mental capabilities, and commendations
given to defendant for positive behavior). In all three cases, the Supreme
Court held that if the jury had access to this information during the trial,
there was a reasonable probability that a different sentence might have
resulted. See Rompilla, 545 U.S. at 392; Wiggins, 539 U.S. at 536;
Williams, 529 U.S. at 398.
68                        DICKENS V. RYAN

sentencing and the litigation of his ineffective assistance
claims during the PCR proceedings.” The district court
suggested that the standard should be whether there is a
reasonable possibility that further mitigating evidence would
have changed the trial judge’s position.16 The district court
concluded the state trial judge “assessed Petitioner’s
ineffective assistance claim after presiding over trial and
sentencing, applied Strickland to reject Petitioner’s allegation
of prejudice, and noted that imposition of the death sentence
was not a close call.”

    As noted, the district court’s conclusions are not binding
on us, but its description of the sentencing hearing and
defense counsel’s efforts are accurate. Dickens’s proffer of
contrary evidence does not rise to the low threshold of “some
merit.” Martinez, 132 S. Ct. at 1318. Dickens asserts that his
sentencing counsel had little experience with capital cases,
did not conduct “assessment interviews” of family and friends
to discover background information, and was not aware of
mitigation specialists. Dickens objects that rather than
conduct a complete mitigation investigation, sentencing
counsel handed documents over to Dr. Roy “and left the
entire presentation of the mitigation case in Dr. Roy’s hands.
Dickens further alleges that a box of general information was
missing from the boxes of information given to Dr. Roy and
that Dr. Roy had no experience presenting mitigating
evidence in capital trials.


 16
    The district court cited Smith v. Stewart, 140 F.3d 1263, 1270 (9th Cir.
1998) (“We are asked to imagine what the effect might have been upon a
sentencing judge, who was following the law, especially one who had
heard the testimony at trial. Mitigating evidence might well have one
effect on the sentencing judge, without having the same effect on a
different judicial officer.”)
                           DICKENS V. RYAN                             69

    Addressing his claimed FAS and brain damage, Dickens
now argues that even though Dr. Roy’s report noted that
Dickens’s mother drank alcohol three times a week while she
was pregnant with Dickens, counsel “failed to retain an expert
to discuss the effects that alcohol had on his client in utero.”
He also argues that Dr. Roy’s report indicated the possibility
of organic brain damage that led to the further testing by a Dr.
Weiss, but that Dr. Weiss was more concerned with a back
injury Dickens sustained after the crime occurred, and his
report failed to consider Dr. Roy’s concern with limited brain
functioning. Dickens claims that sentencing counsel “failed
to equip Dr. Weiss with the tools necessary to properly make
a determination regarding testing.”

    These observations do not provide a sound basis for an
IAC claim. Dickens was tried and sentenced twenty years
ago in 1993. Counsel’s performance must be evaluated on
the basis of the standard of representation as it then existed.17


 17
      In Strickland, the Supreme Court stated:

          Judicial scrutiny of counsel’s performance must be
          highly deferential. It is all too tempting for a defendant
          to second-guess counsel’s assistance after conviction or
          adverse sentence, and it is all too easy for a court,
          examining counsel’s defense after it has proved
          unsuccessful, to conclude that a particular act or
          omission of counsel was unreasonable. Cf. Engle v.
          Isaac, 456 U.S. 107, 133–34 (1982). A fair assessment
          of attorney performance requires that every effort be
          made to eliminate the distorting effects of hindsight, to
          reconstruct the circumstances of counsel’s challenged
          conduct, and to evaluate the conduct from counsel’s
          perspective at the time.

466 U.S. at 689.
70                        DICKENS V. RYAN

See Strickland, 466 U.S. at 689. Moreover, as we recently
reiterated in Cox v. Ayers, 613 F.3d 883 (9th Cir. 2010),
“[t]he burden is on Petitioner to ‘identify the acts or
omissions of counsel that are alleged not to have been the
result of reasonable professional judgment.’” Id. at 893
(quoting Strickland, 466 U.S. at 690). Here, taking Dickens’s
allegations at face value, his “new” claim of IAC lacks merit.
He argues that counsel did not retain an expert to discuss the
effects that alcohol had on his client in utero, but there is little
to suggest that counsel should have been aware of this
possibility. At most, it is possible that Dr. Roy might have
been able to learn of this possibility, but there is nothing to
suggest that he actually knew of the possibility or deliberately
failed to inform counsel.18 Similarly, counsel reasonably
relied on his experts to assess the possibility of Dickens’s
brain damage. Again, it is possible, as Dickens now argues,
that his experts failed to properly test and diagnose his brain

     18
      In his 2002 declaration, Dr. Thomas Thompson, a psychologist
retained by Dickens, alleges that “[a]lcohol exposure in utero is and was
known to have a major teratogenic impact on the central nervous system
(brain) of the developing fetus in 1992. He then lists a number of
academic articles that discussed fetal alcohol syndrome that were available
in 1992. However, when addressing the specifics of this case, Dr.
Thompson writes:

          The amount of alcohol Joan Dickens consumed during
          her pregnancy with Greg constitutes an amount
          sufficient to produce Fetal Alcohol Syndrome as
          defined by the Institute of Medicine Report of 1996.
          See Fetal Alcohol Syndrome: Diagnosis, Epidemology,
          Prevention, and Treatment 74–79 (Kathleen Stratton,
          Cynthia Howe, and Frederick Battablia eds., Institute of
          Medicine, 1996).

This suggests that the test for FAS was not established or widely
disseminated until 1996, three years after Dickens was sentenced.
                         DICKENS V. RYAN                             71

damage, but sentencing counsel can hardly be faulted for not
perceiving this.19

    Furthermore, the alleged failure to detect two possible
mental concerns must be considered in the context of all the
psychological and mental mitigating factors that sentencing
counsel and Dr. Roy did develop. As noted, Dr. Roy
diagnosed Dickens “with major depression, severe; mixed
personality, with borderline narcissistic features; and
suspected mild traumatic brain injury.” Dr. Roy testified to
Dickens’s beating by his brothers, his sexual abuse as a child,
his history of head traumas, and even that his mother drank
when she was pregnant with Dickens. Considering the
totality of the evidence, the only reasonable conclusion is that
sentencing counsel performed adequately, at least insofar as
he failed to discover Dickens’s alleged organic brain damage
and FAS.

     The totality of the evidence also compels the conclusion
that even if sentencing counsel’s performance somehow fell
below the mark, Dickens was not prejudiced. In sentencing
Dickens, the trial judge found at least two aggravating
factors. The court found no statutory mitigating factors, and
Dickens does not argue that his present claim of brain damage
and FAS would constitute a statutory mitigating factor. The
trial court noted that Dickens had urged a list of 31 non-
statutory mitigating circumstances. It agreed with a number

  19
     On appeal, Dickens has not offered any evidence that counters the
district court’s determination that he “failed to identify a significant
disparity between the evidence that could have been presented at
sentencing and the evidence that counsel did present.” Whatever Dr.
Roy’s shortcomings in failing to diagnose Dickens with organic brain
damage and FAS, there is nothing in the record to suggest that trial
counsel knew or should have known of these alleged failings.
72                        DICKENS V. RYAN

of these. It found that Dickens “had a troubled childhood,
that his family was somewhat dysfunctional, that he has
always had a loving and caring mother and he now has a
supportive family.” The court further found that Dickens
exhibited “some sympathy or remorse,” but that his “capacity
to appreciate the wrongfulness of his conduct at the time of
planning and execution of these offenses or to conform his
conduct at that time to the requirements of law was not
significantly impaired.” It is extremely unlikely that
presenting further evidence concerning Dickens’s brain
damage or FAS would have resulted in a different sentence.20

   In sum, in contrast to the factual records in cases where
we have found IAC based on trial counsel’s failure to
adequately investigate or present a defendant’s mental
condition,21 a review of Dickens’s sentencing hearing (as well

 20
    A report prepared by Dr. Thomas Thompson indicates that FAS may
retard appropriate adult developmental maturity, result in poor judgment
and decision making, and in Dickens “resulted in neuropsychological
deficits that impaired his ability to overcome difficulties associated with
a chaotic social-emotional learning environment present in the family
home.” This is not an assertion that Dickens was not capable of
appreciating the wrongfulness of his conduct. Moreover, in the context of
Dickens’s involvement with Amaral and the murder, further medical
explanations for Dickens’s behavior were not likely to have changed the
sentencing judge’s mind.
   21
      See, e.g., Silva v. Woodford, 279 F.3d 825, 864 (9th Cir. 2002)
(counsel’s performance deficient where counsel “conducted no
investigation whatsoever into Silva’s past and also failed to even
minimally assist in the preparation of possible mental defenses”); Bean v.
Calderon, 163 F.3d 1073, 1078 (9th Cir. 1998) (counsel “engaged in no
preparation” and “conducted no investigation of penalty-phase issues”);
Clabourne v. Lewis, 64 F.3d 1373, 1384 (9th Cir. 1995) (counsel “did not
call any witnesses, introduce any evidence of [defendant’s] history of
mental illness, or argue any mitigating circumstance besides [defendant’s]
                          DICKENS V. RYAN                              73

as his state postconviction proceedings) shows that trial
counsel reasonably presented mitigating evidence concerning
Dickens’s mental condition. Furthermore, it is unlikely that
the state judge, who sentenced Dickens and presided over his
postconviction proceeding, would have been swayed by the
“new” evidence (developed well after his sentencing) that
Dickens might have suffered from organic brain damage and
FAS. Accordingly, even if I could conclude that Dickens was
procedurally eligible for the Martinez exception, and even if
I could conclude that he is asserting a “new” claim that
justifies him raising assertions for the first time in a federal
habeas petition, I would still affirm the denial of Dickens’s
habeas petition because this record compels a determination
that his sentencing counsel’s performance was not
inadequate.

    For the reasons set forth in parts I and II of the majority
opinion’s discussion, Dickens’s Enmund/Tison claim is
properly rejected. However, Dickens’s request for relief
pursuant to the Supreme Court’s opinion in Martinez should
also be rejected because he is not eligible for relief under
Martinez, he has not proffered a “new” claim, and there is no
merit to his proffered claim. The district court’s denial of his
federal habeas petition should be affirmed. Accordingly, I
respectfully dissent from majority’s remand of this case to the
district court.




mental condition at the time of the offense”); Wallace v. Stewart, 184 F.3d
1112, 1114 (9th Cir. 1999) (counsel failed to discover and provide to their
mental health experts various test results and information about
defendant’s incredibly dysfunctional family background).
74                    DICKENS V. RYAN

CHRISTEN, Circuit Judge, with whom Judges
PREGERSON, WARDLAW, BERZON, and MURGUIA
join, dissenting in Parts I and II, concurring in Part III:

    The majority makes a persuasive case in support of an
uncontested issue: that the record supported the jury’s
decision to convict Gregory Dickens of robbery, conspiracy
to commit robbery, and felony murder. But the question we
must decide is whether the record and the law justify the
Arizona Supreme Court’s decision to affirm the imposition of
the death penalty. Because imposing the death penalty in this
case is an unreasonable application of clearly established law
as articulated by the United States Supreme Court in Enmund
v. Florida, 458 U.S. 782 (1982), and Tison v. Arizona,
481 U.S. 137 (1987), and because at least two unreasonable
findings of fact were critical to the Arizona court’s decision,
I respectfully dissent from the majority’s opinion.

    Imposing the death penalty on Gregory Dickens, the
getaway driver in an armed robbery “who neither took life,
attempted to take life, nor intended to take life,” violates the
Eighth and Fourteenth Amendments and is an unreasonable
application of clearly established federal law. See Enmund,
458 U.S. at 787, 801. Dickens’s participation in his crime so
closely resembles the actions of Earl Enmund in Enmund v.
Florida, where the Supreme Court held that the death penalty
could not be constitutionally imposed, that it cannot be
meaningfully distinguished. Dickens’s culpability falls far
short of the narrow exception to Enmund, created by Tison v.
Arizona, for individuals whose conduct constitutes “major
participation” in the felony offense and reckless indifference
to human life. 481 U.S. at 158. The petition should be
granted.
                      DICKENS V. RYAN                        75

I. Unreasonable Application of Enmund/Tison

   A. Major Participation

    In Enmund v. Florida, the Supreme Court held that the
death penalty was unconstitutional as applied to a petitioner
convicted of felony murder under facts strikingly similar to
Dickens’s case. 458 U.S. at 788–801. Earl Enmund was a
getaway driver in an armed robbery. Id. at 788. While he
was waiting in a car nearby, his accomplices killed two
robbery victims at the back door of their home. Id. at 784,
788.

     In its review of the Florida court’s death eligibility
determination, the Court made clear that it had “no doubt that
robbery is a serious crime deserving serious punishment,” but
it observed that robbery “is not, however, a crime ‘so
grievous an affront to humanity that the only adequate
response may be the penalty of death.’” Id. at 797 (citing
Gregg v. Georgia, 428 U.S. 153, 184 (1976)). The Court
further prefaced its opinion with the observation that the
question before it was not whether the death penalty is a
disproportionate punishment for murder generally, “but rather
the validity of capital punishment for Enmund’s own
conduct.” Id. at 798. The Court stressed that the focus of
inquiry must be on Enmund’s culpability rather than the
culpability of the accomplices who committed the actual
murder, “for we insist on ‘individualized consideration as a
constitutional requirement in imposing the death sentence.’”
Id. (quoting Lockett v. Ohio, 438 U.S. 586, 605 (1978)). The
Supreme Court has been consistent in instructing that death
sentences for accomplices who do not kill or intend that a
killing take place are reserved for offenders who manifest the
highest levels of culpability. See, e.g., Tison, 481 U.S. at 157
76                    DICKENS V. RYAN

(identifying offenders who rank among “the most culpable
and dangerous of murderers”); Kennedy v. Louisiana,
554 U.S. 407, 420 (2008) (stating that capital punishment
must be limited to offenders with “extreme culpability”
(internal quotation omitted)).

    Enmund was by no means an innocent bystander; his
involvement was that of an accomplice to a planned, armed
robbery. Enmund, 458 U.S. at 797. The Supreme Court
cabined its opinion to an evaluation of the appropriateness of
the death penalty in a situation where a defendant was not one
of the triggermen, but was a constructive aider and abettor
waiting to help his robber accomplices escape. Id. at 786 n.2,
788. Apart from his status as a getaway driver, the Court did
not need to reach many of the facts in Enmund because the
Florida Supreme Court did not rely on them. But it is clear
that Enmund was a part of the planned criminal enterprise —
he was, after all, the getaway driver waiting to help his
accomplices escape at the time the murders took place.
Indeed, in order to be convicted of aiding and abetting under
Florida law at the time, Enmund had to be found to be
constructively present, “pursuant to a previous
understanding,” and situated so as to abet or encourage the
actual perpetrator in committing the felony or in escaping
after its commission. Enmund v. State, 399 So.2d 1362, 1370
(Fla. 1981), rev’d, 458 U.S. 782 (1982).

    Ultimately, the Court reasoned that because Enmund “did
not kill or intend to kill,” the imposition of the death penalty
was impermissible. 458 U.S. at 798, 801. In reaching this
decision, the Court observed that at the time of its opinion it
was “not aware of a single person convicted of felony murder
over the past quarter century who did not kill or attempt to
                      DICKENS V. RYAN                        77

kill, and did not intend the death of the victim, who has been
executed.” Id. at 796.

     Dickens’s participation in the robbery that resulted in the
murders of Laura and Bryan Bernstein is strikingly similar.
If there is such a thing as a generic description for a getaway
driver, Dickens’s involvement fits the bill: he helped plan the
robberies in advance, he either “furnished Amaral with the
weapon used in the murders or knew Amaral had the weapon
with him for the robberies; [he] drove Amaral to the scene,
waited while Amaral committed the robberies, picked up
Amaral after the crime, witnessed the destruction of evidence,
and failed to report the crimes.” State v. Dickens, 926 P.2d
468, 490 (Ariz. 1996). The death penalty cannot be
constitutionally applied in Dickens’s case because, as in
Enmund, Dickens was a getaway driver for a planned
robbery, he “did not commit the homicide, was not present
when the killing took place, and did not participate in a plot
or scheme to murder.” Enmund, 458 U.S. at 795. Dickens
was removed from the immediate scene of the murder, just as
Enmund was. See id. at 786.

      A writ of habeas corpus is appropriate if the adjudication
of a claim “resulted in a decision that . . . involved an
unreasonable application of . . . clearly established Federal
law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1). “[A] state-court decision
. . . involves an unreasonable application of [Supreme Court]
precedent if the state court either unreasonably extends a
legal principle from our precedent to a new context where it
should not apply or unreasonably refuses to extend that
principle to a new context where it should apply.” Williams
v. Taylor, 529 U.S. 362, 407 (2000) (emphasis added). The
Arizona Supreme Court’s decision to affirm the death penalty
78                    DICKENS V. RYAN

in Dickens’s case contravenes clearly established law set out
in Enmund.

    The imposition of the death penalty in this case cannot be
justified under the narrow exception to the Enmund rule
established in Tison v. Arizona. 481 U.S. at 158. On the
contrary, Tison’s sharply contrasting facts only underscore
that the death penalty should not be imposed here. The
exception established in Tison permits the imposition of the
death penalty for petitioners who neither intended to kill their
victims nor inflicted the fatal wounds, but it is only available
where there has been a finding that a petitioner’s “degree of
participation in the crimes was major rather than minor, and
the record would support a finding of the culpable mental
state of reckless indifference to human life.” Id. at 151.

    It cannot be credibly argued that Dickens’s culpability
approaches that of the Tison brothers, who helped their father
— a convicted murderer — and their father’s cellmate —
another convicted murderer — escape from prison. Murder
was not just a hypothetical result of the Tison brothers’ plan;
they knew their father had murdered a prison guard during a
previous prison escape. Id. Armed with an ice chest full of
guns, the Tison brothers were major participants in a crime
spree that progressed from a jailbreak to robbery, kidnaping,
and the murder of four members of an innocent family. Id. at
139–42. The Supreme Court concluded that the Tison
brothers’ participation would “clearly support a finding that
they both subjectively appreciated that their acts were likely
to result in the taking of innocent life.” Id. at 152 (emphasis
added).

    The Tison brothers’ active participation continued after
they helped the two murderers escape from prison. When the
                      DICKENS V. RYAN                         79

getaway car they were using had a flat tire and they needed a
different vehicle, id. at 140, 152, one of the Tison brothers
“performed the crucial role of flagging down a passing car
occupied by an innocent family whose fate was then entrusted
to the known killers he had previously armed.” Id. at 151.
The brothers robbed the family, participated in driving the
family into the desert, and guarded the victims at gunpoint.
Id. at 140, 151. They knew that their father was “thinking
about” killing the family, but there is no hint that the brothers
made any attempt to intervene. See id. Instead, the record
showed that the brothers were standing close by when they
“saw [their father’s cell mate] and their father brutally murder
their four captives with repeated blasts from their shotguns.”
Id. at 140–41. One brother “later said that during the escape
he would have been willing personally to kill in a ‘very close
life or death situation’ and that he recognized that after the
escape there was a possibility of killings.” Id. at 144.

    Regarding the Tison brothers’ degree of participation, the
Court wrote: “Far from merely sitting in a car away from the
actual scene of the murders acting as the getaway driver to a
robbery, each petitioner was actively involved in every
element of the kidnaping-robbery and was physically present
during the entire sequence of criminal activity culminating in
the murder of the Lyons family and the subsequent flight.”
Id. at 158.

    Dickens, by contrast, was “sitting in a car away from the
actual scene of the murders acting as the getaway driver to a
robbery.” Id. The robbery took place at night, in a rest area
on the opposite side of a divided highway from where
Dickens waited in a getaway car. Dickens, 926 P.2d at
474–75. Though the majority paints a picture in which
Dickens watched “each part” of the murders, the record only
80                       DICKENS V. RYAN

shows that, from where he waited on the far side of the
highway, Dickens could see a flicker of light as Amaral and
the victims passed in front of the headlights on the
Bernsteins’ car.

      B. Reckless Indifference

     Under the exception articulated in Tison, even major
participation in a felony offense is insufficient unless it is
combined with a finding of “reckless indifference to human
life.”1 481 U.S. at 158. This requirement presents an
independent constitutional barrier to imposing the death
penalty in Dickens’s case because support for the Arizona
court’s finding of reckless indifference to human life is
considerably weaker here than it was in Tison.

    Tison recognized that the common law and modern
criminal codes classify behavior that constitutes “reckless
indifference to human life” with intentional murder. Id. at
157. Today, the Model Penal Code continues to observe this
important classification. MODEL PENAL CODE § 210.2(1).
Tison does nothing to undermine the long-standing
reservation of the death penalty for only the most serious
offenders. Under Tison, it is the reckless disregard for human
life implicit in “knowingly engaging in criminal activities
known to carry a grave risk of death” that represents the
highly culpable mental state that may be considered in death

  1
     Notably, though the Tison brothers provided an “arsenal of lethal
weapons” to two convicted murders, were “prepared to kill in furtherance
of the prison break,” and had heard their father say he was “thinking
about” killing an innocent family they had helped rob and kidnap, the
United States Supreme Court did not make a finding of reckless
indifference to human life. Tison, 481 U.S. at 151. Instead, the Court
remanded the question to the Arizona court to make that determination.
                         DICKENS V. RYAN                              81

eligibility determinations. 481 U.S. at 157–58 (emphasis
added).

    In its analysis of the reckless indifference part of the
Tison exception, the Arizona Supreme Court adopted the trial
court’s findings regarding Dickens’s major participation,
discussed above.2 Dickens, 926 P.2d at 490. The Arizona
court also considered three other factors: “that Defendant [1]
had considerable experience with the justice system through
his other felony convictions, [2] was aware that Amaral had
a violent and explosive temper, and [3] failed to render aid
knowing that one victim might not be dead.” Id. None of
these factors warrants the imposition of the death penalty in
this case.

    First, the Arizona court referred to Dickens’s
“considerable experience with the justice system through his
other felony convictions” when it decided that Dickens acted
with reckless indifference to human life. Id. But Dickens’s
prior convictions were for forgery and lewd and lascivious
acts with a minor; deplorable crimes, but not crimes that
demonstrate a reckless indifference to human life.

    The Arizona Supreme Court also considered that Dickens
knew Amaral had a violent and explosive temper. The
majority also cites this factor, arguing that Dickens “could
have foreseen that lethal force might be used,” and suggesting
that this is a marked difference between Dickens’s case and
Enmund. Maj. Op. at 22, 25. But by relying on the
foreseeability of this robbery going awry, the Arizona court


 2
   The Tison court noted that a finding of reckless indifference might be
supported by the same facts that support a finding of major participation.
481 U.S. at 158 n.12.
82                    DICKENS V. RYAN

and the majority stray from the boundaries imposed by the
Supreme Court. If the “reckless indifference” part of the
Tison test could be satisfied merely by showing that it was
foreseeable an armed robbery could turn deadly, the Tison
exception would swallow the Enmund rule. As the Supreme
Court expressly acknowledged in Tison:

       [p]articipants in violent felonies like armed
       robberies can frequently ‘anticipat[e] that
       lethal force . . . might be used . . . in
       accomplishing the underlying felony.’
       Enmund himself may well have so
       anticipated.     Indeed, the possibility of
       bloodshed is inherent in the commission of
       any violent felony and this possibility is
       generally foreseeable and foreseen . . . .”
       481 U.S. at 151 (internal citation omitted).

    In Tison, the Supreme Court rejected Arizona’s less
rigorous standard that permitted application of the death
penalty for murder accomplices who could “anticipate[] that
lethal force would or might be used or that life would or
might be taken in accomplishing the underlying felony.” Id.
at 150–51. Because virtually any armed robbery carries the
risk that lethal consequences could result, the majority errs by
treating forseeability as a proxy for the more demanding
“reckless indifference” standard required by the Court. Id.

    Finally, the Arizona court concluded that the reckless
indifference part of the Tison exception was satisfied because
Dickens “failed to render aid knowing that one victim might
not be dead.” 926 P.2d at 490. The record simply does not
support this finding of fact. At best, Amaral initially gave
equivocal testimony at trial regarding whether Dickens drove
                          DICKENS V. RYAN                               83

through the rest area after Amaral committed the murders, but
he corrected his own testimony and clarified that he could not
recall whether this occurred.3 Even after prompting, Amaral
testified, “I still don’t remember him coming in as I’m going
out. There was not enough time span where he left the other
side to get across when I was running.” Transcript of Record
at 199, State v. Dickens, (Ariz. Super. Ct. 1993) (No. 18454).
The only other witness, Dickens himself, flatly denied that he
drove into the rest area. Id. at 162. Because the Arizona
Supreme Court, and the majority, place significant emphasis
on speculation that Dickens knew one of the victims might
have survived, it is important to recognize that the jury did
not hear conflicting testimony on this point. The finding that
Dickens failed to render aid to a surviving victim was not the
result of the jury hearing two versions of events and simply
choosing to believe one witness instead of the other. To be
sure, Amaral was a shockingly inconsistent witness — even
debuting an entirely new account of the events for the first
time at trial that involved Dickens actually giving him
directions via never-previously-mentioned walkie-talkies.4
But there is no support for the Arizona court’s unreasonable


 3
   During trial Amaral testified: “I do believe from a conversation we had
later on, he did say he was going through the rest stop to make sure
nobody was moving or everything was taken care of.” Transcript of
Record at 16, State v. Dickens, (Ariz. Super. Ct. 1993) (No. 18454). But
on cross examination Amaral clarified that he could not remember
whether Dickens drove through the rest stop: “The only thing I can
remember is he came and picked me up, I don’t know if he was leaving
the interstate as far as leaving the rest stop or coming into the lane going
out of the rest stop.” Id. at 88.
 4
   Amaral agreed to testify against Dickens to avoid receiving the death
penalty himself, and he gave several pre-trial statements. Dickens,
926 P.2d at 478.
84                        DICKENS V. RYAN

finding that Dickens drove through the rest area and failed to
render aid to a surviving victim.

    The majority recognizes, as it must, that Amaral’s
“walkie-talkie scenario” cannot reasonably be relied upon.
Maj. Op. at 8 n.4. Amaral had made no mention of the
“walkie-talkie scenario” in any of his pre-trial statements and
no physical evidence supported this theory. Conveniently,
Amaral’s new version of the robbery involved the claim that
Dickens and Amaral were using walkie-talkies and that
Dickens directed Amaral to leave “no witnesses.” But in his
argument before the Arizona Supreme Court, even the
Arizona Assistant Attorney General conceded that neither the
jury nor the trial court believed Amaral’s walkie-talkie story.5
He argued that the Arizona Supreme Court “shouldn’t
believe[] the walkie-talkie testimony” either. The Assistant
Attorney General surmised, “maybe [Amaral] decide[d] to
add a little something extra to his testimony to try and make
it more damning to [Dickens].” Transcript of Oral Argument,
State v. Dickens, 926 P.2d 468 (Ariz. Jan. 18, 1996) (No. 93-
0543). The Assistant Attorney General added, “there is no
question here, the plan was to rob. The plan was not to kill.”
Id.

    Disregarding the evidence in the record and the position
of the Arizona Assistant Attorney General, the “Facts and
Procedural History” section of the Arizona court’s opinion

  5
    There can be little doubt the jury did not buy the last minute flourish
Amaral added to his testimony; they acquitted Dickens of premeditated
murder and conspiracy to commit murder. The majority acknowledges as
much: “[T]he jury did not convict Dickens of premeditated murder or
conspiracy to commit murder, indicating it likely did not believe Amaral’s
testimony that Dickens ordered him to kill the Bernsteins over a two-way
radio.” Maj. Op. at 24 n.13.
                      DICKENS V. RYAN                        85

includes that court’s independent factual finding that
“speaking through the walkie-talkie, Defendant then told
Amaral, ‘No witnesses.’” Dickens, 926 P.2d at 474. And the
section of the Arizona court’s opinion that specifically
considered the imposition of the death penalty builds on this
mistake, citing Dickens’s “fail[ure] to render aid knowing
that one victim might not be dead.” Id. at 490. The only way
Dickens would have known that Bryan Bernstein had
survived is if he had driven through the rest area, and there is
no competent evidence that this occurred.

     A petition for writ of habeas corpus may be granted where
it is shown that the decision was based on an unreasonable
determination of the facts in light of the evidence presented
in the state court proceedings. 28 U.S.C. § 2254(d)(2). Here,
evidence from the trial court proceedings does not support the
Arizona Supreme Court’s independent finding that Dickens
gave directions to Amaral over a walkie-talkie, or its finding
that Dickens failed to render aid.

    In light of the evidence presented in the state court
proceeding, how is it that the majority reaches the conclusion
that Dickens, a getaway driver, fits into the narrow exception
carved out by Tison? What facts permit Dickens’s actions to
be deemed comparable to the extraordinarily more culpable
criminal conduct of the Tison brothers? The majority
answers these questions by relying on at least two critical,
unsupported, and unreasonable findings of fact. In other
words, the majority makes the same mistakes made by the
Arizona court.

    First, the majority states: “Dickens drove through the rest
stop to, in his words, verify that ‘everything was taken care
of’ and pick up Amaral.” Maj. Op. at 19 (emphasis added).
86                    DICKENS V. RYAN

But these were not Dickens’s words; they were Amaral’s
words, and, as already explained, Amaral corrected his own
testimony on cross examination by clarifying that, “The only
thing I can remember is he came and picked me up, I don’t
know if he was leaving the interstate as far as leaving the rest
stop or coming into the lane going out of the rest stop.”
Transcript of Record at 88, State v. Dickens, (Ariz. Super. Ct.
1993) (No. 18454). Without evidence that Dickens drove
through the rest area, the only hint of support for the finding
that Dickens “failed to render aid knowing that one of the
victims might not be dead” is the thoroughly discredited
walkie-talkie testimony that neither the trial court nor the jury
believed.

     Second, likely because the Tison court considered the
Tison brothers’ proximity to the murders in that case, the
majority attempts to place Dickens in close proximity to the
murders. The majority asserts that Dickens “watched from
his truck” and could see “each part of the Bernsteins’ murders
as they unfolded.” Maj. Op. at 7, 19. But the record
contradicts the notion that Dickens could see the murders.
The Arizona Supreme Court’s opinion certainly does not
support the majority’s assertion; it only notes that it was
9:17 p.m., that Dickens was waiting in the eastbound rest
area, that he saw the Bernsteins’ car drive into the westbound
rest area across the highway, and that Dickens later “saw a
muzzle flash and heard two shots.” 926 P.2d at 474–75. The
trial court record actually refutes the majority’s finding.
Officer Johnson (the first officer on the scene), speaking from
his previous experience being at the subject rest areas at
night, testified that the rest areas have no lighting, and that,
looking from one rest area to the other, at best only
silhouettes can be seen. Dickens testified consistently. He
said he watched Amaral “disappear[] out of my sight just
                         DICKENS V. RYAN                             87

about the side of the freeway” and that he could only see
“shadows” or “flashes of light as if someone passed in front
of the headlights.” The evidence does not support the
majority’s statement that Dickens watched “each part of the
Bernsteins’ murders as they unfolded.” Maj. Op. at 19.

    What the record does support is that Dickens did what
getaway drivers do. Like Enmund, he planned or acquiesced
in plans to commit an armed robbery, drove a dangerous
accomplice to the crime scene, waited for the robbery to
occur, drove his accomplice away from the crime scene,
witnessed or directed the destruction of evidence, and failed
to report the crimes.6

     The Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA) applies to this case and the majority correctly
notes that the threshold to obtain relief is heightened due to
its application. But in my view relief should be granted in
this case because the Arizona Supreme Court’s decision
involved an unreasonable application of clearly established
federal law as determined by the United States Supreme
Court, and because it was based on an unreasonable
determination of the facts in light of the record before the
state court. Harrington v. Richter, ___ U.S. ___, 131 S. Ct.
770, 785 (2011) (quoting 28 U.S.C. § 2254). The majority


  6
    In a further attempt to distinguish Dickens’s case from Enmund, the
majority argues that Dickens participated in the destruction of evidence
and either provided a weapon to Amaral, or knew that Amaral had one.
Maj. Op. at 16. The Supreme Court did not reach these facts, but the
record does show that Enmund and Dickens have these actions in
common. There was testimony in Enmund’s case that he directed his
common-law wife to get rid of the guns used in the murders, see 399 So.
2d at 1366, and Enmund likely supplied at least one of the weapons used
in the crime. Id.
88                    DICKENS V. RYAN

argues that relief cannot be granted because the facts of
Dickens’s case fall somewhere between the facts in Edmund
and the facts in Tison. That will always be true when a
decision runs afoul of the rule that a state court unreasonably
applies clearly established federal law when it fails to extend
a clearly established legal principle to a new context in a way
that is objectively unreasonable. Williams, 529 U.S. at 407.
Read together, Enmund and Tison reaffirm that the death
penalty is to be reserved for the very most culpable offenders.
Where the facts do not show that a defendant killed,
attempted to kill, or intended to kill, the Constitution requires
a showing of major participation in criminal activities known
to carry a grave risk of death and reckless disregard for
human life. Allowing the death penalty to be imposed on a
getaway driver in a planned armed robbery — even a getaway
driver who later witnessed the destruction of evidence — is
an unreasonable application of clearly established federal law.

    The Arizona Supreme Court’s decision also rests upon
objectively unreasonable findings of fact. The trial court’s
special verdict makes no mention of walkie-talkies or the “no
witnesses” comment. The finding in the Arizona Supreme
Court’s death eligibility determination — that Dickens “failed
to render aid knowing that one victim might not be dead” —
was made by the Arizona trial court, but it was utterly
unsupported. As explained, there was no competent evidence
that Dickens drove through the rest area, and, therefore, no
basis for the court’s speculation that Dickens knew Bryan
Bernstein may have survived the shooting.

    The Supreme Court has observed that, “[w]hen the law
punishes by death, it risks its own sudden descent into
brutality, transgressing the constitutional commitment to
decency and restraint.” Kennedy, 554 U.S. at 420. The
                     DICKENS V. RYAN                       89

majority’s read of Enmund is so narrow that it would likely
forbid habeas relief to Earl Enmund himself. The majority
finds Dickens’s actions comparable to those of the Tison
brothers, yet the Tison brothers’ active participation in
murder and reckless indifference to human life made them the
epitomes of the exception to the rule that those who do not
murder, attempt to murder, or intend that a murder occur,
should be spared the death penalty.

    A getaway driver in an armed robbery, Dickens is entitled
to habeas relief because the Arizona Supreme Court’s
adjudication of the death penalty claim was an unreasonable
application of clearly established law as articulated by the
United States Supreme Court, 28 U.S.C. § 2254(d)(1), and
because it rested on at least two unreasonable determinations
of fact in light of the evidence presented in the state court
proceeding, 28 U.S.C. § 2254(d)(2).

II. The Martinez Issue

    Petitioner argues that post-conviction counsel was
ineffective for failing to argue the ineffectiveness of his
sentencing counsel. Before Martinez v. Ryan, ___ U.S. ___,
132 S. Ct. 1309 (2012), that claim was barred. After
conducting a lengthy, pre-Martinez evidentiary hearing, the
district court found that the additional factual allegations
contained in the four volumes of exhibits filed with Dickens’s
federal habeas petition:

       “materially strengthen the claim presented to
       the state courts” and “present[] this claim in a
       significantly different and stronger posture
       than it had in state court and fundamentally
90                    DICKENS V. RYAN

       alters the claim considered by the state
       courts.”

The district court used unequivocal language: footnote 9 of its
December 2004 ruling states that the court “summarily rejects
Petitioner’s argument that the additional factual allegations in
support of habeas Claim 19 were fairly presented and
exhausted in the state court and rejects that the Arizona
Supreme Court’s independent review exhausted these
allegations.”

    Because Martinez permits petitioners to argue the
ineffectiveness of post-conviction counsel, and because the
district court found that the previously unconsidered evidence
fundamentally alters the ineffective assistance of counsel
claim in this case, I agree with the majority that this case
must be remanded to the district court for initial consideration
of the claim that counsel provided ineffective assistance.

III.   Conclusion

    I respectfully dissent from the majority’s analysis of
Enmund v. Florida, 458 U.S. 782 (1982) and Tison v.
Arizona, 481 U.S. 137 (1987). For the reasons explained, I
would grant relief and decline to reach petitioner’s argument
under Martinez v. Ryan, ___ U.S. ___, 132 S. Ct. 1309
(2012). Nevertheless, because the majority does reach the
Martinez issue, I join in its judgment to vacate the district
court’s ruling regarding whether cause existed to overcome
the procedural default of Dickens’s claim of ineffective
assistance of sentencing counsel, and to remand to the district
court to consider the issue in light of Martinez.
