                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

PAUL EZRA RHOADES,                               No. 07-99023
               Petitioner-Appellant
                                                     D.C. No.
                v.
JEFF HENRY, of the IMSI,                       CV-93-00156-S-EJL
                                                 District of Idaho,
Department of Corrections State of                     Boise
Idaho,*
                                                    OPINION
             Respondent-Appellee.
                                            
         Appeal from the United States District Court
                   for the District of Idaho
          Edward J. Lodge, District Judge, Presiding

                    Argued and Submitted
            February 3, 2010—Seattle, Washington

                        Filed March 8, 2010

      Before: Pamela Ann Rymer, Ronald M. Gould and
                Jay S. Bybee, Circuit Judges.

                     Opinion by Judge Rymer




  *Jeff Henry is substituted for his predecessor, Arvon J. Arave, Depart-
ment of Corrections State of Idaho. Fed. R. App. P. 43(c)(2).

                                 3563
                 RHOADES v. HENRY (Michelbacher)                    3567




                             COUNSEL

Oliver W. Loewy, Federal Defender Services of Idaho, Mos-
cow, Idaho; Dennis A. Benjamin, Nevin, Benjamin, McKay
& Bartlett, Boise, Idaho, for the petitioner-appellant.

L. LaMont Anderson, Deputy Attorney General, Boise, Idaho,
for the respondent-appellee.


                              OPINION

RYMER, Circuit Judge:

   Paul Ezra Rhoades appeals the district court’s denial of his
petition for writ of habeas corpus. He was convicted in Idaho
state court of the 1987 first degree murder, first degree kid-
napping, robbery, rape, and infamous crime against nature of
Susan Michelbacher.1The trial court sentenced him to death




  1
    Rhoades was separately convicted for the shooting deaths of Stacy Bal-
dwin and Nolan Haddon, both of whom were killed with the same gun that
killed Michelbacher during the same three-week period in February and
March of 1987. He was sentenced to death for killing Baldwin and for kid-
3568              RHOADES v. HENRY (Michelbacher)
on his convictions for first degree murder and first degree kid-
napping. The Idaho Supreme Court upheld his conviction,
sentence, and denial of post-conviction relief. State v.
Rhoades (Michelbacher), 822 P.2d 960 (Idaho 1991). We
affirm denial of relief on the conviction, and defer submission
on sentencing issues.2

                                      I

   Susan Michelbacher was a junior high school teacher who
didn’t feel well on the morning of March 19, 1987. Around
6:30 a.m. she decided to go to work to make lesson plans for
a substitute so she could return home and rest. She drove her
1984 Ford Econo Line van. She wasn’t home when her hus-
band came back at noon, nor was she there when he returned

napping her, see State v. Rhoades (Baldwin), 820 P.2d 665 (Idaho 1991),
and received two indeterminate life sentences for the Haddon murder after
entering a conditional guilty plea, see State v. Rhoades (Haddon), 809
P.2d 455 (Idaho 1991). Appeals from denial of federal habeas relief in
both cases are also before us; we resolve them in separate opinions.
Rhoades v. Henry (Baldwin), No. 07-99022, slip op. (9th Cir. March 8,
2010); Rhoades v. Henry (Haddon), No. 07-35808, slip op. (9th Cir.
March 8, 2010).
   2
     Rhoades filed successive post-conviction petitions in state court while
his federal proceedings were ongoing. One of these petitions is still pend-
ing in the Idaho Supreme Court. In it, Rhoades claims that he was entitled
to jury sentencing based on Ring v. Arizona, 536 U.S. 584 (2002). The
trial court denied this petition based upon Schriro v. Summerlin, 542 U.S.
348 (2004), which held that Ring is not retroactive to cases on collateral
review. The Idaho Supreme Court dismissed Rhoades’s appeal, but the
United States Supreme Court granted certiorari, vacated and remanded the
case for further consideration in light of Danforth v. Minnesota, 552 U.S.
264 (2008). Rhoades v. Idaho, 128 S. Ct. 1441 (2008) (mem.). Danforth
indicated that states may themselves decide to apply Ring retroactively to
state post-conviction proceedings. 552 U.S. at 266.
  In light of the fact that this petition is still pending in the Idaho Supreme
Court, there is a possibility that Rhoades’s sentence could be vacated. As
both parties agreed at oral argument, it is prudent to defer reaching issues
pertaining to the penalty phase until the Idaho Supreme Court has spoken.
Therefore, we address only guilt phase issues in this opinion.
              RHOADES v. HENRY (Michelbacher)           3569
at 5:30. He called the school and found out that Michelbacher
had been in earlier to do her lesson plan but had not been at
school during the day.

   Meanwhile, around 7:30 a.m., Valerie Stapf nearly had a
head-on collision in a parking lot with someone driving a van
that looked exactly like Michelbacher’s. Stapf identified
Rhoades as the passenger. She thought the driver was similar
in appearance to Michelbacher, but could not make a positive
identification. After a short standoff, the van backed up and
went toward the First Interstate Bank.

   Michelbacher pulled her van to the drive-in window just as
the bank opened at 8:30 a.m. She gave the teller a check for
$1000, which the teller cashed. Ten to fifteen minutes later,
Michelbacher cashed another $1000 check at another of the
bank’s branches.

   Around 10:00 a.m., Susan Browning saw Michelbacher’s
van enter her driveway and stall while backing out. Browning
identified Rhoades as the driver, Harry Burke as one passen-
ger, and Rhoades’s sister as another. Michelbacher’s body
was subsequently discovered less than a mile away.

   Later in the day, two other people saw Rhoades, or some-
one who looked like Rhoades, in Michelbacher’s van. The
van was found the next day in the parking lot of the bank
where the first $1000 check was cashed. It had fresh
scratches, a smashed tailpipe, and 200 more miles on it than
when Michelbacher left home the morning before.

   Michelbacher’s body was found on March 21 in a remote,
rural area. An autopsy revealed that she had been raped, she
had been shot nine times — once while standing and the
remaining times while lying down — and her attacker had
ejaculated into her mouth when she was either almost dead or
already dead. Rhoades could not be excluded as the semen
donor, nor could he be ruled out as the source of head hair
3570             RHOADES v. HENRY (Michelbacher)
retrieved from Michelbacher’s body and van or of pubic hair
retrieved from her body.

   The next day Rhoades showed Vicky Miller a roll of cash
and told her that “he had come into some money” and was
going to the Jackpot Casino. Later that evening, Rhoades was
seen in a Ford LTD with a large amount of cash at a gas sta-
tion between Idaho Falls and the Jackpot Casino. He told the
cashier he was going to Nevada.

   On March 24, a Nevada state trooper noticed that a green
Ford had been wrecked in the median of the highway about
twenty miles outside Wells, Nevada. A truck driver saw
Rhoades get out of the car and fumble with something brown.
When the trooper was able to respond twenty minutes later,
he ran the plates and found out that the car had been reported
stolen by Pauline Rhoades, Rhoades’s mother. The trooper
also found a .38 caliber revolver lying outside the driver’s
door. The gun was loaded with special lead bullets. Ballistics
testing would show that this gun was used to fire the bullets
that killed Michelbacher. Rhoades’s fingerprints were also
lifted from the LTD.

   Wells police officers learned that Rhoades was at the 4
Way Casino about 9:00 p.m. the next evening. Rhoades was
arrested at a blackjack table, handcuffed, and placed across
the trunk of the police car. While being arrested, Rhoades said
he “wanted the money that was on the game.”

   Meanwhile, Idaho police officers (who had gone to Nevada
after being alerted to discovery of the stolen car belonging to
Rhoades’s mother) were contacted and they, too, went to the
casino. As the Idaho team approached, Rhoades, who knew
one of them, spontaneously said “I did it.” Immediately after
this, Officer Victor Rodriguez, from Idaho, advised Rhoades
of his Miranda rights.3 Rhoades was asked if he understood
  3
    Miranda v. Arizona, 384 U.S. 436 (1966) (requiring that the police
inform a person that he has a right to remain silent and the right to an
attorney before custodial interrogation).
                  RHOADES v. HENRY (Michelbacher)                     3571
those rights and said something to the effect of “I do, yes.”
Detective Dennis Shaw, also from Idaho, searched Rhoades
and found a ten dollar bill, a one dollar bill, and a one-
hundred dollar bill. To test Rhoades’s awareness, Shaw told
Rhoades he had found three dollars. Rhoades responded:
“There’d better be a hundred and eleven dollars there.”

   Rhoades was then taken to the Wells Highway Patrol sub-
station. While taking photographs at the station, Shaw said
something like “If I arrested you earlier, maybe the victim
would be alive today.” Rhoades responded: “I did it.” Shaw
followed that statement by saying “the lady in Idaho Falls,”
to which Rhoades again replied, “I did it.”4

                                    II

   The state charged Rhoades with first degree murder, first
degree kidnapping, robbery, rape, and infamous crime against
nature. The information also charged Rhoades with the first
degree murder of Nolan Haddon, but the Haddon charges
were later severed. Rhoades moved to suppress his “I did it”
statements. After an evidentiary hearing, the trial court denied
the motion.

   The jury found Rhoades guilty on all counts. The trial court
then held a sentencing hearing. It concluded that the mitigat-
ing factors did not outweigh any one of the statutory aggravat-
ing circumstances that it found. Accordingly, the judge
sentenced Rhoades to death for first degree murder and for
first degree kidnapping. It imposed fixed life prison sentences
for the remaining crimes.
  4
    Shaw actually referred to all three murders, saying something along the
lines of “If I had arrested you earlier, three people would be alive” fol-
lowed by “The girl in Blackfoot and the two people in Idaho Falls.” How-
ever, to avoid prejudice the parties stipulated that reference would only be
made at trial to one murder in Idaho Falls (Michelbacher). For conve-
nience, we will refer to the “I did it” statements made inside the station
as a single statement, the “second statement.”
3572              RHOADES v. HENRY (Michelbacher)
  Rhoades filed a petition for post-conviction relief. The trial
court held an evidentiary hearing, after which it denied relief.
The Idaho Supreme Court affirmed Rhoades’s conviction,
sentence, and denial of post-conviction relief on February 13,
1991. The Supreme Court denied Rhoades’s petition for a writ
of certiorari.

   Rhoades filed his initial federal petition on February 21,
1994. As this was before the effective date of the Antiterro-
rism and Effective Death Penalty Act (AEDPA), this appeal
(except for procedural requirements for seeking review) is
governed by pre-AEDPA law. Sims v. Brown, 425 F.3d 560,
562 (9th Cir. 2005).

   The district court allowed Rhoades leave to develop the
facts by taking the deposition of several witnesses, including
his trial counsel, John Radin and Stephen Hart. Both attorneys
also submitted affidavits on their handling of suppression
issues. The court expanded the existing record to include the
deposition transcripts and affidavits pursuant to Rule 7 of the
Rules Governing Section 2254 Cases. After receiving supple-
mental briefing that included a factual proffer, the court
denied an evidentiary hearing on Rhoades’s claims for inef-
fective assistance of counsel,5 and held that no other claims
required one. In particular, the district court held that the state
court had afforded Rhoades a full and fair hearing on his
claims that the state had withheld material exculpatory infor-
mation with respect to a third-party confession, and that his
“I did it” statements should have been suppressed. The district
court then denied those claims it had not previously dis-
  5
   The court previously dismissed Rhoades’s claims of ineffective assis-
tance of trial counsel for procedural default, but changed its ruling in light
of our decision in Hoffman v. Arave, 236 F.3d 523 (9th Cir. 2001). In
Hoffman, we held that Idaho’s forty-two day limit for seeking post-
conviction relief during which no new counsel was appointed frustrated
the right to raise claims of ineffective assistance in state court. Accord-
ingly, the district court allowed Rhoades to proceed on his ineffective
assistance claims.
               RHOADES v. HENRY (Michelbacher)               3573
missed, as well as Rhoades’s motion to alter or amend and to
reconsider the procedural default order.

   Rhoades timely appealed issues on which he received a cer-
tificate of appealability, and one on which he did not.

                               III

   We review de novo the district court’s decision to grant or
deny a petition for writ of habeas corpus. Martinez-Villareal
v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996). “Ineffective
assistance of counsel claims are mixed questions of law and
fact which we review de novo.” Beardslee v. Woodford, 358
F.3d 560, 569 (9th Cir. 2004).

   “To the extent it is necessary to review findings of fact
made in the district court, the clearly erroneous standard
applies.” Silva v. Woodford, 279 F.3d 825, 835 (9th Cir.
2002). This clear error review is “significantly deferential”
and the court “must accept the district court’s factual findings
absent a ‘definite and firm conviction that a mistake has been
committed.’ ” Id. (citation omitted). Further, “[a]lthough less
deference to state court factual findings is required under the
pre-AEDPA law which governs this case, such factual find-
ings are nonetheless entitled to a presumption of correctness
unless they are ‘not fairly supported by the record.’ ” Id. (cita-
tions omitted).

  “A district court[‘s] denial of an evidentiary hearing is
reviewed for abuse of discretion.” Beardslee, 358 F.3d at 573.

                               IV

   Rhoades argues that the state violated his right to due pro-
cess by withholding the fact that he had invoked his right to
silence before being interrogated at the station and making the
second “I did it” statement. He also asserts that the district
3574             RHOADES v. HENRY (Michelbacher)
court abused its discretion by failing to grant an evidentiary
hearing on this issue.

  This claim arises out of a report by Detective Shaw that
was produced at Shaw’s deposition during federal habeas pro-
ceedings. Shaw wrote in the report:

      On the way to the police station I continued to talk
      with him [Rhoades]. He was very uncomfortable as
      he was so large and the car did not give him much
      room. I told him I was disappointed in him and he
      had lied to me about the burglary. I had tried to
      believe him and give him a chance but he had lied
      and conned me. I said we need to talk about it now
      so that you can get it off your chest. He said, “Aw
      bullshit, I don’t want to talk about it.[ ] Get these
      fuckin cuffs off me.”

Shaw explained during the deposition that he was talking
about a burglary at Lavaunda’s Lingerie because he wanted to
start chronologically and that’s where his warrant was.
(Rhoades was a suspect in several burglaries, including a bur-
glary at Lavaunda’s Lingerie for which Shaw had obtained an
arrest warrant.) Shaw assumed that Rhoades didn’t want to
talk about it because he was cramped. Shaw removed the
handcuffs once inside the station.

   The state counters that we may not address this argument
because no such claim was made in Rhoades’s first amended
petition. Although he did raise a claim regarding the “I did it”
statements, it was in the context that his Fifth, Sixth and Four-
teenth Amendment rights were violated by admission of
ambiguous and unreliable statements. Thus, the state con-
tends, a Brady6 claim based on Shaw’s discussion with
Rhoades en route from the 4 Way Casino to the station is
  6
    Brady v. Maryland, 373 U.S. 83 (1963) (imposing duty on the prosecu-
tion to disclose material evidence favorable to an accused).
                  RHOADES v. HENRY (Michelbacher)                        3575
waived. Rhoades responds that this argument is not waived
because he used the “I don’t want to talk about it” statement
to support his claim that the second “I did it” statement should
have been suppressed.7

   [1] The state is correct that no Brady claim arising out of
the “I don’t want to talk about it” statement was presented in
district court. The amended petition makes no such claim. So
far as we can tell, the only Brady issues that were raised
involved the confession of Kevin Buchholz and impeachment
material on Susan Browning, a witness for the state. The dis-
trict court did discuss the “I don’t want to talk about it” state-
ment in the context of addressing Rhoades’s argument that his
Miranda rights were violated by admission of the second “I
did it” statement. In that context, the court held that the state-
ment involved an unrelated burglary and did not, in any event,
constitute a clear and unambiguous invocation of the right to
stop all conversation. The court did not discuss whether the
state had withheld information about the “I don’t want to talk
about it” statement in violation of Brady. In these circum-
stances the claim is waived. It is not enough for a potential
claim to lurk within an actual claim. The question of whether
the state withheld material, exculpatory information contrary
to its duty of disclosure is quite different from whether the
statement itself invoked a right to silence. We cannot expect
district courts to be that clairvoyant. Nor should this court be
making decisions on claims that have not been developed in
district court, especially a claim that is fact-driven as this one
  7
    We have discretion to review newly presented issues if “(1) there are
‘exceptional circumstances’ why the issue was not raised in the trial court,
(2) the new issue arises while the appeal is pending because of a change
in the law, or (3) the issue presented is purely one of law and the opposing
party will suffer no prejudice as a result of the failure to raise the issue in
the trial court. Further exception may be made when plain error has
occurred and an injustice might otherwise result.” United States v. Flores-
Montano, 424 F.3d 1044, 1047 (9th Cir. 2005) (quoting United States v.
Flores-Payon, 942 F.2d 556, 558 (9th Cir. 1991)). Rhoades does not argue
that any exception applies.
3576           RHOADES v. HENRY (Michelbacher)
is. As we have often said, “a party cannot treat the district
court as a mere ill-placed bunker to be circumvented on his
way to this court where he will actually engage his oppo-
nents.” Handa v. Clark, 401 F.3d 1129, 1132 (9th Cir. 2005)
(citing Crawford v. Lungren, 96 F.3d 380, 389 n.6 (9th Cir.
1996)).

   [2] Even were a Brady claim preserved, it would fail. As
we explained in Rhoades v. Henry (Baldwin), no Brady viola-
tion occurs when a defendant possessed the information that
he claims was withheld. Slip op. at 3530-31. Rhoades made
the “I don’t want to talk about it” statement himself, and
failed to show that his counsel were unaware of the salient
facts. See Rhoades (Haddon), slip op. at 3524-28 (holding that
the salient facts were known to Rhoades’s counsel in the Had-
don case, who also represented Rhoades in the Michelbacher
case). Nor does Rhoades advance any argument why the court
abused its discretion in not holding an evidentiary hearing.
Accordingly, we find none.

                               V

                               A

   Rhoades raises two related issues arising out of Kevin
Buchholz’s confession to the Baldwin murder: that the state
withheld the confession as well as other facts relating to it in
violation of Brady; and that trial counsel was ineffective in
failing to investigate Buchholz’s confession. He adds with
respect to both that the district court should have held an evi-
dentiary hearing.

   Officer Joseph Love arrested Buchholz on March 14, 1987,
at his parents’ home after Buchholz’s father called police to
report a fight. Buchholz was quite drunk. He told Officer
Larry Christian, on duty at the jail, that he shot the girl from
the Mini Barn (Stacy Baldwin). Christian reported the conver-
sation to his supervisor, then returned to talk to Buchholz.
                 RHOADES v. HENRY (Michelbacher)                 3577
Buchholz said he had shot the girl from the Mini Barn twice
in the back, had shot several times around the body, and had
emptied the gun. Buchholz recanted the confession once
sober, explaining that he was with his family the night of the
murder. Family members confirmed this. Neither Buchholz’s
fingerprints, hair sample, nor shoe prints matched anything
connected to the crime.

   Love wrote a report, which indicated that Buchholz said
“he was the one who killed the girl at the Mini Barn. Why
don’t you just pin it on me. I did it.” Christian also wrote a
report, which reflected that Buchholz told him he had fired
several shots and hit the girl from the Mini Barn twice in the
back with a .38 or a 9mm. Detective Newbold prepared a
report summarizing the Christian report. Only Newbold’s
report was turned over. Stephen Hart, one of Rhoades’s attor-
neys, testified at an evidentiary hearing that the Newbold
report had been produced, and Buchholz testified that he fab-
ricated the confession because he was intoxicated and angry
at being arrested on what he thought were bogus charges.

   [3] The trial court denied post-conviction relief on
Rhoades’s Brady claim, noting that he had vigorously
opposed admission of evidence about the Baldwin matter. It
held that the confession was inadmissible because it was irrel-
evant to the Michelbacher matter. The Idaho Supreme Court
affirmed, concluding that with the Newbold report in hand,
the defense could have conducted further inquiry had it
wanted to. Rhoades I (Michelbacher), 822 P.2d at 972. The
district court noted that the Buchholz material in the main
relates entirely to the Baldwin homicide,8 not the Michelb-
acher case, and that the state trial court ruled that it would not
be received in the Michelbacher trial. For this reason there is
  8
   The only arguable exception is a polygraph examination given to
Buchholz. However, as we explained in the Baldwin case, polygraph
results are not admissible in Idaho. See Rhoades (Baldwin), slip op. at
3524 n.6.
3578           RHOADES v. HENRY (Michelbacher)
no prejudice and no possibility of a different outcome.
Regardless, the district court held that the essential facts that
comprise the allegedly exculpatory information were in the
Newbold report, so no Brady violation occurred. We agree on
both grounds. See Rhoades (Baldwin), slip op. at 3531-34.

   [4] It follows that Rhoades’s ineffective assistance claim
fails as well. See Strickland v. Washington, 466 U.S. 668, 687
(1984) (petitioner must show prejudice as well as deficient
performance). See Rhoades (Baldwin), slip op. at 3527-28.

   [5] Finally, Rhoades offers no support for his assertion that
the district court should have held an evidentiary hearing. We
review denial of an evidentiary hearing for abuse of discre-
tion, see Baja v. Ducharme, 187 F.3d 1075, 1077 (9th Cir.
1999), and see none.

                               B

   Rhoades’s second Brady claim goes to withholding of facts
that he believes could have impeached Susan Browning.
Browning was one of two witnesses who testified to seeing
Rhoades in the Michelbacher van the morning that Michelb-
acher was killed. Browning was involved in two incidents
about which Rhoades’s counsel learned in post-conviction
proceedings. The first occurred the day before the preliminary
hearing: Browning called a Bonneville County Deputy Sheriff
to tell him that she was just passed on the road by a dirty-
looking green Jeep and the side window of her car exploded
inward. She thought it was from a gunshot, though no bullets
were ever found, and that it may have been related to her sta-
tus in the Michelbacher case. In Rhoades’s view this was a
delusional encounter that would have impeached Browning’s
credibility and shown bias on her part as a result of fear. The
second incident happened about a year later, after the trial,
when her back windshield was destroyed. She felt it may also
have been caused by a gun shot. Rhoades suggests this inci-
dent underscores the unreliability of Browning’s trial testi-
                  RHOADES v. HENRY (Michelbacher)                    3579
mony because it shows her willingness to draw conclusions
that lack support.

   The district court found Browning’s experiences extremely
tangential to the case but, even if Rhoades had demonstrated
how he could have used either of them as impeachment, he
had not shown prejudice given the compelling evidence of
guilt. The court first reviewed the key evidence: The murder
weapon that fired the bullets that killed Michelbacher was
found near the car Rhoades had just abandoned on a roadside
in Nevada, and .38 caliber ammunition like that used in the
murder was retrieved from inside the vehicle; a witness had
seen Rhoades with a similar handgun and he had purchased
.38 caliber ammunition like that found in the car a few days
before Michelbacher was murdered; Michelbacher withdrew
$2000 on the morning of her death, and Rhoades had a signif-
icant amount of cash after the murder; he was seen in the
Michelbacher van and long hairs consistent with his were
found inside that van; a pubic hair consistent with his was on
the victim’s body and serological tests showed that he fell
within a small percentage of the population that could not be
excluded as a potential semen donor while the other passenger
seen in the car, and Michelbacher’s husband, had been
excluded; and when told that Michelbacher’s death may have
been avoided had he been arrested sooner, Rhoades said “I
did it.” Applying the Kyles9 standard, and including the
undisclosed information in the analysis, the court determined
that nothing about the picture would have changed in
Rhoades’s favor had the state turned over all the material. The
prosecution would have been able to show that the Buchholz
confession was unreliable and probably false, see Rhoades
  9
    Kyles v. Whitley, 514 U.S. 419, 434 (1995) (instructing that for pur-
poses of materiality in the Brady inquiry and prejudice, “[t]he question is
not whether the defendant would more likely than not have received a dif-
ferent verdict with the evidence, but whether in its absence he received a
fair trial, understood as a trial resulting in a verdict worthy of confi-
dence”).
3580           RHOADES v. HENRY (Michelbacher)
(Baldwin), slip op. at 3525-27, 3533-34, and Browning’s
credibility had already been seriously challenged during
cross-examination at trial. Among other things, cross-
examination brought out that Browning claimed she could see
the brand of jeans Rhoades was wearing when he was sitting
in the driver’s seat of the van, despite the fact that the door
blocked her line of sight. Counsel also elicited from Browning
that she changed her story about when she saw the van, and
what she saw in it. Thus, the court concluded, Rhoades failed
to show a reasonable probability that the result of the trial
would have been different.

   [6] We agree with the district court. See Williams v. Wood-
ford, 384 F.3d 567, 599 (9th Cir. 2004) (holding that there
was no prejudice when the cumulative impeachment evidence
would not have placed the witness “in a significantly worse
light” and therefore, the result of the proceedings would not
have been different). We realize that Browning did place
Rhoades in the van near the time and location of the murder,
but her testimony was not central to the prosecution’s case in
the same way that a key witness’s testimony was in Horton
v. Mayle, for example, upon which Rhoades relies. See 408
F.3d 570 (9th Cir. 2005). In Horton, the witness for whom
impeachment material had not been disclosed testified that the
defendant confessed to him; in the context of that case, this
witness’s testimony “was the glue that held the prosecution’s
case together.” Id. at 579. Browning’s testimony was nowhere
near the glue level in this case; it provided one or two facts
among many that connected Rhoades to the Michelbacher
murder.

   [7] Having considered the undisclosed evidence collec-
tively, as courts are obliged to do under Kyles, we conclude
that the trial “result[ed] in a verdict worthy of confidence.”
514 U.S. at 434. As a result, there is no prejudice and there-
fore, no Brady violation.
                 RHOADES v. HENRY (Michelbacher)                    3581
   Rhoades mentions an evidentiary hearing only in the cap-
tion and develops no argument at all with respect to the point.
We take it as abandoned.

                                   VI

   Rhoades claims that trial counsel rendered ineffective assis-
tance by failing effectively to impeach the prosecution’s
forensic expert and by failing to counter the serological evi-
dence. As well, Rhoades asserts the district court abused its
discretion in denying an evidentiary hearing on this claim.

   The state’s expert, Donald Wyckoff, testified at trial that he
performed a series of serological tests on semen found on
Michelbacher’s sweatpants and body, including ABO blood
typing, secretor status, and PGM typing.10 Based on these
tests, Wyckoff excluded Harry Burke (one of the passengers
seen in Michelbacher’s van on the morning of the murder)
and Albert Michelbacher (Michelbacher’s husband), but could
not exclude Rhoades as a semen donor.11 Rhoades’s blood
type and secretor status put him within 32% of the population
who could have been a contributor. The state’s testing arrived
at a PGM category of 1; Susan Michelbacher, Rhoades, and
Burke were all within this general category, while Albert
Michelbacher was 2,1. This correlation together with being an
A Secretor put Rhoades within 16% of the population who
could potentially have donated the semen.
  10
     PGM, or phosphoglucomutase, is an enzyme marker found in blood,
vaginal secretions, semen, and other bodily fluids.
  11
     The sample deposit was by an A secretor, meaning someone with
blood type A who is a secretor. The state’s testing showed that Susan
Michelbacher was blood type O, Rhoades is blood type A, Albert Michel-
bacher is blood type A, and Harry Burke is blood type O. Susan Michelb-
acher was a nonsecretor (NS), as is Albert Michelbacher; Rhoades is a
secretor (S), as is Burke. Thus, only Rhoades and Burke are secretors, but
Burke is blood type O, leaving only Rhoades as an A secretor.
3582           RHOADES v. HENRY (Michelbacher)
   Before trial, the state’s forensic lab had also sent the swab
samples to an FBI lab for more specific PGM subtyping. This
testing revealed that one of the samples was “PGMsub 1+,”
which corresponded with Michelbacher’s more specific PGM
subtype (1+) but not with Rhoades’s (1-1+), Albert Michelb-
acher’s (2,1), or Burke’s (1). Neither the state, nor the
defense, went into the FBI’s finding that the sample’s PGM
subtype did not match Rhoades’s.

   Rhoades had retained an expert for trial, Richard Fox, to
evaluate fluid evidence, seminal fluid, and blood (as well as
ballistics). The record is silent as to whether Fox discussed
the FBI results with Rhoades’s counsel. However, John Radin
explained at his deposition in the federal proceeding that
counsel chose not to put Fox on because he helped in one area
but hurt in others.

   During federal proceedings in 2005, Rhoades retained
another expert, Dr. Greg Hampikian. Hampikian submitted an
affidavit in which he opined that the FBI lab’s 1987 report
absolutely excludes Rhoades as a contributor of the semen.
However, it turned out that Hampikian’s affidavit mistakenly
referred to the swab’s subtyping as “sub 1-” instead of “sub
1+.” Having reviewed it, the district court also suggested that
the FBI’s subtyping result could be explained as reflecting the
victim’s own biological contribution. Hampikian then submit-
ted another affidavit correcting the mistake and indicating that
it had no bearing on his conclusion. He also offered his view
that regardless of which of the two possible explanations for
the results was correct (if the result was based on semen, then
Rhoades was excluded because he wasn’t a match, or if the
test result reflected the victim’s own tissue, then Rhoades
would be eliminated as the source of the PGM), Rhoades was
still excluded as the contributor of the PGM. The district court
found that Rhoades failed to show how an opinion similar to
Hampikian’s would have materially assisted the defense at
trial. In its view, trial counsel could not have argued that the
report exonerated Rhoades because there is no way of know-
                 RHOADES v. HENRY (Michelbacher)                    3583
ing whether it was the victim’s own tissue sample on the swab
that accounted for the result, and counsel covered this possi-
bility during cross-examination of Wyckoff. As such, the dis-
trict court found no deficiency. Alternatively, the court found
that Rhoades had shown no prejudice, given that Rhoades’s
blood type and secretor status still placed him with 32% of the
population that could have deposited the semen, and the other
evidence of guilt was strong — ballistics and hair analysis
linking Rhoades to Michelbacher, the “I did it” statement, his
possession of the murder weapon, eyewitness accounts plac-
ing Rhoades in the van, and his unexplained windfall of cash
immediately after the homicide.

   [8] Whether or not Rhoades’s counsel made an informed
strategic choice, Rhoades has not shown prejudice given that
his blood type A, and secretor status S, place him within 32%
of the population that could have deposited the semen. Both
markers eliminate Michelbacher’s husband and Harry Burke
without regard to PGM subtyping.12 Factoring in the FBI’s
PGM subtyping results would have been marginally helpful to
Rhoades, in that the prosecution could only have argued he
was within 32%, not 16%, of the population who potentially
could have donated the semen. But the results do not exclude
Rhoades as a semen donor, just as a donor of the PGM 1+
found on the sample. Michelbacher was a 1+ and could have
contributed the enzyme — something that was brought out on
cross-examination even with respect to the more general test-
ing done by the state. Further, the state’s expert never
expressed an opinion at trial that Rhoades was the donor, just
that he could not be excluded. Nothing in Hampikian’s affida-
vit changes that opinion. Nor was serological evidence central
  12
    It was in this context that the prosecutor argued in closing that only
Rhoades of the persons who had access matches, and that the semen sam-
ples in the vagina and in the mouth match Rhoades and match each other.
That Rhoades’s PGM subtype is not present on the sample tested by the
FBI lab does not make this point more or less true, given that he was not
excluded as the semen donor with or without the subtyping results.
3584                 RHOADES v. HENRY (Michelbacher)
to the prosecution’s case. Certainly it was helpful to say that
Rhoades was not excluded, but whether it was as part of 32%
or 16% of the population was by no means the linchpin of the
case. Cf. Richter v. Hickman, 578 F.3d 944, 963-68 (9th Cir.
2009) (en banc) (concluding that testing of a particular blood
pattern was critical, thus the lack of it was prejudicial). By the
same token, the government’s case had no “substantial weak-
nesses” that would render it highly likely that testimony about
the FBI results “would determine the outcome.” Cf. id. at 964.
Indeed, as the district court noted, evidence of guilt in this
case is quite strong. Ballistics testing matched the gun and
bullets linked to Rhoades to the murder; hairs (both head and
pubic) consistent with his were found on Michelbacher; he
said “I did it”; eyewitnesses placed him in Michelbacher’s
van; he was seen in that van near the spot where Michelb-
acher’s body was found; Michelbacher withdrew $2000 in
cash with Rhoades in the van, and afterwards he was seen
with a lot of cash that was never explained.

                                        VII

   Rhoades contends that the trial court’s reasonable doubt
instructions violated due process under In re Winship, 397
U.S. 358 (1970), and Cage v. Louisiana, 498 U.S. 39 (1990).
In particular, the court used the phrases “moral evidence” and
“moral certainty” in Instructions 23 and 26,13 andindicated
  13
    Instruction 23 stated:
       A defendant in a criminal action is presumed to be innocent until
       the contrary is proved and in case of a reasonable doubt whether
       his guilt is satisfactorily shown, he is entitled to an acquittal. This
       presumption places upon the State the burden of proving him
       guilty beyond a reasonable doubt.
       Reasonable doubt is defined as follows. It is not a mere possible
       doubt because everything relating to human affairs and depend-
       ing on moral evidence is open to some possible or imaginary
       doubt. It is that state of the case which after the entire comparison
       and consideration of all of the evidence leaves the minds of the
                  RHOADES v. HENRY (Michelbacher)                     3585
that the burden of proof is not intended to aid anyone who is
in fact guilty in Instruction 22.14

   [9] Rhoades submits that Instructions 23 and 26 run afoul
of Cage and Victor v. Nebraska, 511 U.S. 1 (1994), because
of their reference to “moral evidence” and “moral certainty.”
He suggests that the jury could have read the “moral certain-
ty” language to refer to the ethics or morality of the alleged

    jurors in that condition that they cannot say they have an abiding
    conviction to a moral certainty of the truth of the charge.
    A reasonable doubt is an actual doubt based upon evidence or
    lack of evidence. It is such doubt as you are conscious of after
    going over in your minds the entire case and giving consideration
    to all the testimony. If you feel uncertain and not fully convinced
    that the defendant is guilty or if you feel that you would not be
    acting reasonably should you find him guilty, and if you believe
    that a reasonable man in any matter of like importance in his own
    affairs would hesitate to act because of such doubt as you are
    conscious of having, then that is a reasonable doubt, and the
    defendant is entitled to the benefit of it.
    But if, after considering all the evidence, you have an abiding
    conviction of the truth of the charge, then you are convinced
    beyond a reasonable doubt, and you should render your verdict
    accordingly.
Instruction 26 stated:
     The law does not require demonstration or that degree of proof
     which, excluding all possibility of error, produces absolute cer-
     tainty for such degree of proof is rarely possible. Moral certainty
     only is required, which is that degree of proof which produces
     conviction in an unprejudiced mind.
  14
     Instruction 22 stated:
    The rule of law which clothes every person accused of a crime
    with the presumption of innocence and imposes upon the state the
    burden of proving his guilt beyond a reasonable doubt is not
    intended to aid anyone who is in fact guilt [sic] to escape but is
    a humane provision of the law intended so far as human agencies
    can to guard against the danger of an innocent person being
    unjustly punished.
3586              RHOADES v. HENRY (Michelbacher)
offense, thus diminishing the state’s burden of proving each
element beyond a reasonable doubt. However, the question is
not, as Rhoades puts it, whether the jury could have read the
instruction as he posits, but whether “there is a reasonable
likelihood” that it did. Victor, 511 U.S. at 6. We considered
an instruction identical to Instruction 23 in the Baldwin case,
and rejected the same arguments there that Rhoades makes
here. See Rhoades (Baldwin), slip op. at 3538-40. As we
pointed out in the Baldwin case, the Court in Victor directly
addressed, and upheld, the constitutionality of a reasonable
doubt instruction that had both phrases and was virtually iden-
tical to Instruction 23. Also, we previously found nothing
constitutionally infirm in the same instruction. Leavitt v.
Arave, 383 F.3d 809, 822 (9th Cir. 2004). In addition, the trial
court in this case (as in Victor and in the Baldwin case) gave
other instructions that made clear to jurors that they could
only base a decision on evidence received in the trial, that
Rhoades was presumed innocent unless and until proved
guilty beyond a reasonable doubt, that the state had to prove
every material allegation in the charge beyond a reasonable
doubt before Rhoades could be convicted of any crime, and
that if the jury entertained a reasonable doubt of the truth of
any of these allegations it was their duty to give the defendant
the benefit of the doubt and acquit.

   [10] Rhoades argues that the “in fact guilty” language in
Instruction 22 told the jury to consider actual guilt, or guilt in
fact, rather than whether proof beyond a reasonable doubt, or
legal guilt, has been established. He notes that similar instruc-
tions have been held erroneous, including by our court in
Reynolds v. United States, 238 F.2d 460 (9th Cir. 1956). As
it did in the Baldwin case, the state asserts that this challenge
is Teague-barred.15 Teague having been raised, we must con-
sider it first. Caspari v. Bohlen, 510 U.S. 383, 389 (1994). As
  15
    Teague v. Lane, 489 U.S. 288 (1989) (precluding retroactive applica-
tion of a new rule on collateral review unless exceptions, not invoked here,
are satisfied).
               RHOADES v. HENRY (Michelbacher)             3587
we held in the Baldwin case, Teague is not applicable.
Rhoades’s conviction in this case, as in the Baldwin case,
became final after the Supreme Court rendered its opinion in
Cage. Even if Rhoades were correct, which we think he is not,
the rule he advocates would flow from Cage and thus its
application would not be retroactive. Rhoades (Baldwin), slip
op. at 3540-42.

   [11] On the merits, Rhoades makes the same arguments in
this case as he did in the Baldwin case with respect to an iden-
tical instruction, and they fail here for the same reasons they
did there. See id. at 3542-43. In short, we disapprove of the
instruction, but conclude it is not reasonably likely that
Instruction 22, in context of the instructions overall, caused
the jury to misapply the state’s burden of proof.

   Rhoades argues that the surrounding instructions do not
cure the erroneous explanation of the presumption of inno-
cence in Instruction 22. We disagree. Instructions 2 and 23
explicitly informed the jury that Rhoades was to be presumed
innocent unless and until proven guilty beyond a reasonable
doubt. Instruction 23 further noted that he began the trial with
a clean slate with no evidence against him. And it provided
a definition for reasonable doubt that the Supreme Court
embraced in Victor. 511 U.S. at 20-21. Instructions 20 and 23
imposed the burden on the government to prove every mate-
rial allegation for each crime beyond a reasonable doubt. The
jury was admonished that it must base its decision solely upon
the evidence presented in court, not on any other consider-
ation. Read together, the instructions made clear that the pre-
sumption of innocence and the reasonable doubt standard
must be applied in Rhoades’s case.

   [12] Given the entire set of instructions, we conclude that
there is no reasonable probability that the jury convicted
Rhoades ignoring the presumption of innocence or using a
standard of proof lower than beyond a reasonable doubt.
3588          RHOADES v. HENRY (Michelbacher)
                            VIII

   Rhoades faults the prosecutor for statements during closing
argument that, in his view, amounted to an impermissible
comment on Rhoades’s right to remain silent. Rhoades did not
testify, but he did call witnesses in his own behalf. Two were
put on the stand to account for the large sum of money that
Rhoades was seen with after Michelbacher’s murder. One tes-
tified that he paid Rhoades’s father $1500 for snow removal.
While discussing Rhoades’s statement to another witness,
Vicky Miller, that he had “come into some money,” the prose-
cutor said:

    When I get paid, when you get paid, is that how you
    describe it that you came into some money? That’s
    the phrase you use when you inherit some money or
    come into some other windfall. In today’s world
    when money changes hands legitimately there’s gen-
    erally a document that documents that transaction. A
    receipt, a check, a passbook savings account that
    indicates the transfer of those funds.

    What did we hear from the defendant yesterday?

    [DEFENSE COUNSEL]: Excuse me, Your Honor
    —

    [PROSECUTOR]: I’m sorry —

    [DEFENSE COUNSEL]: I’m going to object.

    [PROSECUTOR]: I’m sorry, what did we hear from
    the defense counsel in the case-in-chief yesterday?
    We heard the defendant’s uncle take the stand and
    say, “Well, I’ve hired him on occasion to plow
    snow.” Mr. Hart asked him, “In January or February
    did you pay him anything?” “Well, yeah that was a
    down year, I paid his father fifteen hundred dollars.”
               RHOADES v. HENRY (Michelbacher)             3589
    Not a word, not one word, and no sentence about the
    month of February. The weekend of the 20th, 18th,
    19th, 20th. Not one word.

   Rhoades’s request for a mistrial based on this statement
was denied. The trial court found that the prosecutor simply
misspoke and meant to say “defense.” The court expressly
found no intentional overzealous comment; further, it
observed, the state is entitled to analyze the defense’s evi-
dence, and to analyze the balance of the evidence. Thus, it
also found no problem with argument about evidence that the
defense had failed to explain. The trial court offered to give
a limiting instruction, but Rhoades declined. Rhoades’s later
motion for a new trial based on the prosecutor’s comment was
also denied. The court found that each juror had been advised
that the defendant did not have to testify; the comment was
immediately corrected, the prosecutor apologized, and argu-
ment resumed with reference to the defense counsel’s case-in-
chief from the day before; the instructions admonished the
jury that it could not consider the fact that Rhoades did not
testify; the statement was not intended to be, and was not of
such a character that the jury would naturally and necessarily
take it to be, a comment on the failure of the accused to tes-
tify; and Rhoades rejected the court’s offer to reread an
instruction on the defendant’s right not to testify and the
jury’s obligation not to draw any inference of guilt from the
fact that he did not.

   The Idaho Supreme Court concluded that context demon-
strated that the prosecutory’s query (“What did we hear from
the defendant yesterday?”) was accidental and did not pertain
to the defendant’s failure to testify, but to the sufficiency of
the defendant’s evidence. Rhoades I (Michelbacher), 822 P.2d
at 968. It also found that the prosecutor’s other statements
about defense counsel’s failure to explain the state’s evidence
referred to evidence presented by the defense, not to the
defendant’s failure to testify. Id.
3590            RHOADES v. HENRY (Michelbacher)
   The district court concluded there was no Griffin error16 in
the prosecutor’s argument that certain evidence had not been
explained or contradicted. And it agreed with the state trial
court’s finding that the prosecutor misspoke the one time he
said “What did we hear from the defendant yesterday?” The
district court noted that the jury had actually heard testimony
from the defense on the precise point that the prosecutor was
discussing, and the prosecutor could properly point out incon-
sistencies or weakness in that evidence. The court also
thought it important that the prosecutor immediately changed
his statement in front of the jury from “defendant” to “defense
counsel,” which was consistent with other statements through-
out his closing argument. Finally, the court concluded that
error, if any, was harmless given that the comment was not
extensive; the prosecutor argued that Rhoades’s evidence was
not persuasive — not that the jury should infer guilt from his
silence; and the state’s case was quite strong.

   [13] The Fifth Amendment prohibits a prosecutor from
commenting on a defendant’s decision not to testify. Griffin,
380 U.S. at 615. It is proper for the prosecutor to address the
defense’s arguments; comment is impermissible only “if it is
manifestly intended to call attention to the defendant’s failure
to testify, or is of such a character that the jury would natu-
rally and necessarily take it to be a comment on the failure to
testify.” Lincoln v. Sunn, 807 F.2d 805, 809 (9th Cir. 1987).
Comment is unacceptable, however, if the defendant is the
sole person who could provide information on a particular
issue. Id. at 810.

  [14] Analyzing the prosecutor’s statement in context, as
Boyde v. California, 494 U.S. 370, 385 (1990), tells us we
must, it is clear that the state court’s determination is sup-
ported. The prosecutor corrected himself right away, properly
  16
    Griffin v. California, 380 U.S. 609 (1965) (holding that the Fifth
Amendment prohibits a prosecutor from asking a jury to infer a defen-
dant’s guilt based upon his decision not to testify).
               RHOADES v. HENRY (Michelbacher)              3591
substituting a reference to the defense counsel’s case-in-chief
that was consistent with the rest of his closing. As his next
remarks also make clear, they were aimed at the weakness in
a defense witness’s actual testimony — not at Rhoades’s fail-
ure to testify. In these circumstances, the jury would not “nat-
urally and necessarily” take the statement to comment on the
failure to testify. Nor could the jury have inferred something
constitutionally insidious from the mere fact that Rhoades
objected and the prosecutor corrected himself, as Rhoades
suggests; the jury was plainly instructed that it was not to
infer anything from the defendant’s failure to testify. We pre-
sume the jury followed the court’s instructions.

   [15] United States v. Sigal, 572 F.2d 1320 (9th Cir. 1978),
upon which Rhoades relies, concerns a very different sce-
nario. There, the prosecutor told the jury “the defendants did
not deny” they were in charge of a portion of the conspiracy,
and it was only on appeal that the government argued he had
meant to say “defense attorneys.” Id. at 1322-23 & n.1.
Although we thought the explanation was logical, it was also
the case that the comment taken at face value, as we assumed
the jury took it, constituted a comment on the failure of the
defendants to testify. Id. at 1323. Here, the explanation is also
logical and the comment was immediately corrected, so taken
at face value it would not constitute a comment on the failure
of Rhoades to testify. See United States v. Adams, 37 F.3d
383, 384 (8th Cir. 1994) (per curiam) (concluding there was
no error where the prosecutor quickly corrected an inadvertent
reference to the defendant, rather than defense counsel); cf.
United States v. Parker, 549 F.2d 1217, 1221 (9th Cir. 1977)
(holding that a comment about what the defendant, who
showed the jury that he had a gold cap around a tooth, failed
to state was harmless error because it “was not extensive, it
did not stress any inference of guilt from [the defendant’s]
silence, and there was no substantial evidence that could have
supported an acquittal”).

   Rhoades contends that other statements about evidence that
the defense left unexplained were problematic as well, and
3592           RHOADES v. HENRY (Michelbacher)
make it likely that the jury would have inferred intent to com-
ment on silence when the prosecutor asked “What did we hear
from the defendant yesterday?” For example, the prosecutor
stated that “not one shred of evidence has been introduced by
the defendant that these crimes did not occur,” followed by:
“We recognize the Court has instructed you that the defendant
need not present witnesses, that he need not do anything in
this case, the Court has instructed you in that respect.”
Rhoades suggests this was a subtle way to tell the jury to
ignore the court’s instructions, but we don’t see how a state-
ment reinforcing an instruction could reasonably be taken to
mean the opposite.

   [16] The prosecutor also stated: “What have they told you
[about the gun]? They haven’t told you anything. As was tes-
tified in the defense’s case-in-chief they’ve had access to all
of the evidence in this case. If there was evidence out there
that would disassociate this gun from Paul Rhoades, we’d
have heard it.” Expert testimony matched the gun with at least
one bullet in Michelbacher’s body and matched shell casings
recovered from where her body was found to test fires from
the revolver found by the LTD. A natural reading of the pros-
ecutor’s comment is not that the defendant didn’t testify, but
that there was no meaningful challenge to the government’s
evidence.

  Finally, the prosecutor stated:

    Where was the defendant? Everybody has got to be
    somewhere. If there was any explanation, let alone
    a rational explanation, of the defendant’s where-
    abouts during the time this crime occurred, don’t you
    think you would have heard it? There is none, and
    the reason there is none is because he was where
    those witnesses said he was. It’s just that simple.

Rhoades argues that this statement comments on something
only he knew with certainty, but this isn’t necessarily so. Oth-
              RHOADES v. HENRY (Michelbacher)         3593
ers could have been with him, or could have seen him. As it
happened, witnesses testified to having seen Rhoades at
incriminating times and in incriminating places.

  [17] Accordingly, we conclude there was no Griffin error.

  DENIAL OF RELIEF ON CONVICTION AFFIRMED.
