                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


MICHAEL JOE MURDAUGH ,                    No. 10-99020
          Petitioner-Appellant,
                                           D.C. No.
               v.                    2:09-CV-00831-FJM

CHARLES L. RYAN ,
          Respondent-Appellee.             OPINION


      Appeal from the United States District Court
               for the District of Arizona
     Frederick J. Martone, District Judge, Presiding

                Argued and Submitted
     February 13, 2013—San Francisco, California

                    Filed July 26, 2013

    Before: Dorothy W. Nelson, Stephen Reinhardt,
       and Milan D. Smith, Jr., Circuit Judges.

               Opinion by Judge Nelson
2                      MURDAUGH V . RYAN

                           SUMMARY*


                Habeas Corpus/Death Penalty

   The panel reversed in part and affirmed in part the district
court’s denial of a 28 U.S.C. § 2254 habeas corpus petition
challenging a conviction and capital sentence for murder.

    The panel reversed the district court’s denial of relief as
to petitioner Murdaugh’s claim of error under Ring v.
Arizona, 536 U.S. 584 (2002), which requires a jury
determination of the presence or absence of aggravating
factors supporting the death penalty. After acknowledging
that Ring error is subject to the harmless error test, the panel
concluded that the Ring error had a substantial and injurious
effect or influence on the trial court’s failure to find the
mitigating factor regarding Murdaugh’s capacity to
appreciate the wrongfulness of his conduct or conform it to
the requirements of law, and thus on the trial court’s
imposition of a death sentence. The panel explained that, had
the state supreme court considered all of the evidence, it
would have been impossible to conclude that no rational jury
could have found this factor. Having granted relief as to this
claim, the panel reserved judgment on Murdaugh’s claims
about his competence to waive the presentation of mitigating
evidence at sentencing.

   The panel otherwise affirmed the district court’s decision.
The panel next held that the state court did not violate
Murdaugh’s constitutional rights by applying an

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

unconstitutional causal nexus test to mitigating evidence of
his drug use and delusions. The panel also held that
Murdaugh was not denied his right to conflict-free
representation when the prosecutor presented mitigating
evidence at the behest of the trial court after Murdaugh
declined to present such evidence, because the prosecutor did
not represent Murdaugh. The panel also denied relief as to
Murdaugh’s challenges to his guilty plea.



                        COUNSEL

Paula K. Harms (argued) and Therese M. Day, Federal Public
Defender’s Office, Phoenix, Arizona, for Petitioner-
Appellant.

Jeffrey A. Zick (argued), Arizona Attorney General’s Office,
Phoenix, Arizona, for Respondent-Appellee.


                         OPINION

NELSON, Senior Circuit Judge:

    Petitioner Michael Joe Murdaugh appeals the denial of his
federal habeas petition, which challenges his murder
conviction and death sentence. Murdaugh claims that the
district court erred in denying claims brought pursuant to
Ring v. Arizona, 536 U.S. 584 (2002), and Tennard v. Dretke,
542 U.S. 274 (2004), as well as claims raising other errors by
the state court and the ineffective assistance of counsel.
Murdaugh also argues that the district court erred in deeming
various claims procedurally defaulted. We grant relief on
4                     MURDAUGH V . RYAN

Murdaugh’s Ring claim and reserve judgment on Murdaugh’s
claims about his competence to waive the presentation of
mitigating evidence. We otherwise affirm the district court.

                          I. Background

1. The Murders of David Reynolds and Douglas Eggert

   On June 26, 1995, Murdaugh’s girlfriend, Rebecca Rohrs,
met David Reynolds at a gas station.1 She told him she was
looking for a job, and they exchanged phone numbers. The
conversation took a sordid turn when Reynolds offered to pay
Rohrs to perform oral sex. Rohrs declined, returned home,
and described the encounter to Murdaugh. Murdaugh
decided “to teach Reynolds a lesson,” and told Rohrs to invite
him over. Murdaugh then left with his friend Jesse Dezarn to
buy methamphetamine, instructing Rohrs to page them as
soon as Reynolds arrived.

    When they learned that Reynolds had arrived, Murdaugh
and Dezarn quickly returned to the house, brandishing
firearms. While Murdaugh confronted Reynolds, Rohrs and
her friend Betty Gross looted Reynolds’s plumbing van
outside. Murdaugh eventually came out of the house and
reprimanded them for not wearing gloves and leaving
fingerprints on everything. He exclaimed, “Do you know
what I am going to have to do now?”



    1
   These facts are drawn from the Arizona Supreme Court’s summary of
the evidence supporting Murdaugh’s convictions, which are “presumed to
be correct,” unless Murdaugh rebuts that presumption by “clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1). M urdaugh does not
challenge any of these facts in his petition.
                   MURDAUGH V . RYAN                       5

   Later that night, Murdaugh took Reynolds to his garage
and ordered him into the trunk of his car. Murdaugh, Dezarn,
Gross, and Rohrs all returned to the garage throughout the
night to use methamphetamine.

    In the early hours of the next morning, Murdaugh and
Dezarn decided to abandon Reynolds’s van near a cemetery.
While stopping for gas on the way back to the house, they ran
into an acquaintance, Ron Jesse. They asked Jesse for drugs,
and he returned to the house with them. Dezarn and Jesse
then left the house to buy more methamphetamine. Upon
their return, Murdaugh, Dezarn, and Jesse began using
methamphetamine in the garage. At around 8:30 AM, Gross
and Rohrs joined them, and the group continued taking drugs.

    While they were all in the garage, Murdaugh opened the
trunk of his car to show Jesse that he was holding Reynolds
inside. At this point, Reynolds asked to use the bathroom.
Murdaugh led Reynolds to a corner of the garage to urinate,
and while Reynolds’s back was turned, Murdaugh struck him
on the head with a meat tenderizer. Reynolds fell to the
ground, and Murdaugh picked up a metal jackhammer spike
and continued to hit him in the face and head. Three major
crushing blows to Reynolds’s skull killed him. Murdaugh
then instructed Gross and Rohrs to sprinkle horse manure
over the body and the surrounding blood.

    At some point after the murder, Jesse attempted to leave
Murdaugh’s property but could not because the gate was
locked. Murdaugh approached Jesse and threatened him,
saying that if he told anyone what happened, Murdaugh
would “kill [Jesse] last and peel the skin off his children.”
6                  MURDAUGH V . RYAN

    That evening, Murdaugh and Dezarn loaded Reynolds’s
body into Murdaugh’s horse trailer. Murdaugh told Rohrs to
clean up the blood in the garage and then left to go camping.
At the campsite, Murdaugh dismembered Reynolds’s body in
an effort to prevent identification of the remains. He cut off
Reynolds’s head and hands, sliced off Reynolds’s finger pads,
and pulled out Reynolds’s teeth. As he was driving to a
separate site to bury the body, he threw the teeth and finger
pads from the window of his truck. He then buried the head
and hands in one shallow grave and the torso in another.

    Over the next several days, the police began investigating
Reynolds’s disappearance. The police found Reynolds’s van,
obtained copies of Reynolds’s cell phone records, and then
contacted Rohrs. The police also interviewed Jesse, who told
them he had witnessed Reynolds’s murder. The police
obtained a search warrant for Murdaugh’s home and garage
and found the scene exactly as Murdaugh had left it. The
Maricopa County Sheriff’s Office put out an alert notifying
law enforcement agencies that they were looking for
Murdaugh.

    Investigators ultimately tracked down Murdaugh after he
checked himself into an emergency room for a knife wound
he sustained while cleaning one of his horses’s hooves. After
waiving his Miranda rights, Murdaugh confessed to the
murder and told the detectives where to find Reynolds’s
body. Because Reynolds’s murder was similar to the
previous murder of a victim named Douglas Eggert, the
police asked Murdaugh if he had ever done anything like this
before. Murdaugh then admitted to killing Eggert by beating
him to death with a meat tenderizer.
                    MURDAUGH V . RYAN                        7

2. Conviction

    An Arizona grand jury charged Murdaugh with first
degree murder, kidnapping, aggravated robbery, and
aggravated assault in connection with Reynolds’s death. It
also charged Murdaugh with the first-degree murder and
kidnapping of Eggert. The state appointed Jess Lorona to
represent Murdaugh.

    In November 1998, the trial court ordered a competency
screening of Murdaugh. Dr. Jack Potts, a forensic
psychologist, noted that Murdaugh held some fringe beliefs
but expressed a desire to plead guilty to avoid putting his
family and those of the victims through a trial. Dr. Potts
concluded that Murdaugh was aware of the charges against
him and understood both his constitutional rights and the
consequences of pleading guilty.

    The court then appointed Drs. Scialli and Sindelar to
assess Murdaugh’s competence. Both found Murdaugh
competent to plead guilty. The parties stipulated that the
court could determine Murdaugh’s competency on the basis
of these reports. The trial court then found Murdaugh
competent.

    Around this time, Murdaugh repeatedly requested a skull
x-ray because he believed that a tracking device had been
implanted in his head. The deputy district attorney, Mark
Barry, asked the court to order the skull x-ray. He argued that
the x-ray would reassure Murdaugh that no tracking device
existed and that it would “alleviate any potential coercive
allegations raised at any future plea proceedings.” The trial
court granted the request.
8                   MURDAUGH V . RYAN

    In May 1999, the trial court ordered a competency
screening to reevaluate Murdaugh. Dr. Potts submitted a
screening evaluation of Murdaugh in September 1999, in
which he described Murdaugh as “continuing to experience
paranoid beliefs and delusions secondary to his past
amphetamine abuse.” Dr. Potts recounted that Murdaugh had
requested a skull x-ray but had received a CT scan instead.
The scan did not show an implant, but Murdaugh believed the
results were doctored and requested an MRI. Dr. Potts
concluded that Murdaugh “is an intelligent man who is
simply expressing a very strong desire based on a clearly
false belief. He is capable of weighing various options.” Dr.
Potts opined that Murdaugh “fully appreciates the necessary
waiver of his rights by entering a plea of guilty,” and “fully
understands the consequences of entering the plea.”

    Murdaugh pled guilty to both indictments in January of
2000. The plea agreement provided that the state would not
seek the death penalty for Eggert’s murder, but that the
conviction for that crime could still constitute an aggravating
factor in sentencing Murdaugh for Reynolds’s murder.

3. Sentencing

    Over the course of the next year, the defense team
prepared a mitigation case by retaining a psychiatrist and an
addictionologist, seeking the release of Murdaugh’s Rolodex
from the state to contact character witnesses, and having the
mitigation specialist prepare a mitigation report. The trial
court ordered Murdaugh’s mitigation experts, Dr. Demming
and Dr. Shaw, and Lisa Christianson, to submit their reports
to the state by August 24, 2001.
                    MURDAUGH V . RYAN                        9

    On August 27, 2001, Lorona notified the state that
Murdaugh would not allow him to file with the court, or
provide to the prosecution, any of the mitigation materials the
defense had prepared. The state moved to compel and sought
sanctions against Lorona.

    The trial court held a hearing on September 7, 2001.
Lorona told the court that Murdaugh feared that his life was
in danger and believed that staying in the Arizona
Department of Corrections would effectively be a death
sentence whether or not he was sentenced to death. Lorona
had asked the state to agree to an interstate compact to allow
Murdaugh to serve his time outside Arizona, but the state
refused. The court clarified that it did not have the authority
to tell the Department of Corrections where to place an
inmate.

   Because he could not serve a life sentence outside of
Arizona, Murdaugh instructed his counsel that he did not
want to put on any mitigation case at all. The court informed
Murdaugh that if he did not present mitigation, the court
would seek mitigating evidence from any source legitimately
available to the court and would put the burden on the state to
provide mitigating evidence.

    Three weeks later, the court held another hearing about
Murdaugh’s objection to the presentation of mitigating
evidence. Lorona explained that though he thought
Murdaugh was competent to waive mitigating evidence, the
court was required to determine the competency issue before
proceeding. The court considered whether it could compel
either side to present mitigating evidence and asked for
evidence regarding Murdaugh’s competence.
10                  MURDAUGH V . RYAN

    The DA offered the testimony of the state’s expert, Dr.
Lang. Dr. Lang had experience conducting competency
evaluations but did not do one in this case. She testified that
during the time she spent with Murdaugh, she did not observe
any indications that the petitioner was unable to understand
the nature of the proceedings against him or that he was
incompetent. Dr. Lang also testified that Murdaugh was able
to state the charges against him, seemed to understand her
questions, and appeared coherent, and that she had no reason
to disagree with the prior competency determinations made
before Murdaugh pled guilty. Lorona asked the court to take
judicial notice of the earlier reports submitted by Drs. Scialli,
Sindelar, and Potts regarding Murdaugh’s competence to
plead guilty. The court did so.

    The court found Murdaugh competent to assist counsel,
to understand the nature of the proceedings, and to waive his
right to present mitigating evidence. The court went on to
conclude that the petitioner had a Fifth Amendment right “not
to testify directly or indirectly through other means.” The
court ruled that it would not compel the defense to present
mitigation but that it would compel the state to do so.

    The state then proceeded to present mitigating evidence.
The state first moved to admit the materials Dr. Deming used
in preparing his report, as well as a preliminary draft of Dr.
Deming’s report and a 1978 medical records evaluation of
Murdaugh. Defense counsel objected, arguing that any
information beyond what was contained in the Rule 11
competency reports was private. The trial court sustained the
objection and declined to consider these materials, finding
that to do so would moot Murdaugh’s waiver of mitigation.
                   MURDAUGH V . RYAN                       11

    The state next called Dr. Lang to offer mitigating
evidence. Dr. Lang testified that she had diagnosed
Murdaugh with polysubstance dependence based on his
history of drug abuse and with antisocial personality disorder
based on his history of aggressive and violent behavior,
disrespect for society, involvement in illegal activity, and
personality testing. Dr. Lang also testified that she did not
believe Murdaugh was paranoid or delusional at the time of
the offense, that neither his capacity to appreciate the
wrongfulness of his conduct nor to conform his conduct to the
requirements of law were significantly impaired at the time
of the offense, and that his cognitive functioning was
unimpaired.

     More than halfway through this testimony, Lorona asked,
“Is there some mitigation here somewhere?” The court noted
its concern that the state was using the presentation of
mitigating evidence as a pretense to introduce additional
aggravating evidence. The court then proceeded to question
Dr. Lang directly about Murdaugh’s drug use leading up to
Reynolds’s murder and how it affected Murdaugh’s mental
state. Dr. Lang testified that the psychological impact of
methamphetamine ingestion varies but can include euphoria,
a feeling of power, increased energy, and decreased need to
sleep or eat; it also may aggravate aggression and paranoia.
Defense counsel declined to cross-examine Dr. Lang.

    Despite Murdaugh’s decision to waive mitigation, Lorona
filed a six-page sentencing memorandum that was limited to
the evidence that had been filed with the court. It did not
refer to any of the mitigation reports. Counsel argued that
Murdaugh’s convictions for Eggert’s death could establish
12                     MURDAUGH V . RYAN

either of two aggravating factors2: that Eggert’s murder was
a crime for which Murdaugh could be sentenced to life
imprisonment or the death penalty, (F)(1), or that Eggert’s
murder was a prior violent felony, (F)(2). Ariz. Rev. Stat.
§§ 13-703(F)(1), (F)(2) (2001). Counsel argued, though, that
in accordance with the terms of the plea agreement, Eggert’s
murder could not establish both factors. Counsel also argued
that the state had not established aggravating factor (F)(5),
pecuniary gain. Finally, counsel argued that the state had not
proved beyond a reasonable doubt factor (F)(6) or that the


     2
     At the time of Murdaugh’s sentencing, Arizona law required a
sentencing judge to find one or more of fourteen enumerated aggravating
circumstances before a capital defendant could be eligible for the death
penalty. See Ariz. Rev. Stat. § 13-703(E). The four aggravating
circumstances relevant to this appeal are:

         (F)(1). The defendant has been convicted of another
         offense in the United States for which under Arizona
         law a sentence of life imprisonment or death was
         imposable.

         (F)(2). The defendant has been or was previously
         convicted of a serious offense, whether preparatory or
         completed. Convictions for serious offenses committed
         on the same occasion as the homicide, or not committed
         on the same occasion but consolidated for trial with the
         homicide, shall be treated as a serious offense under
         this paragraph.

         (F)(5). The defendant committed the offense as
         consideration for the receipt, or in expectation of the
         receipt, of anything of pecuniary value.

         (F)(6). The defendant committed the offense in an
         especially heinous, cruel or depraved manner.

See id. § 13-703(F).
                       MURDAUGH V . RYAN                             13

offense was committed in an especially heinous, cruel, or
depraved manner. With respect to statutory mitigating
circumstances, 3 counsel asserted that Murdaugh’s
methamphetamine use rendered him unable to appreciate the
wrongfulness of his conduct or to conform his conduct to the
requirements of the law, but not so much as to constitute a
defense. Counsel pointed to testimony offered at presentence



  3
    Arizona law at the time required a sentencing judge to consider five
“statutory” mitigating circumstances:

         (G)(1). The defendant’s capacity to appreciate the
         wrongfulness of his conduct or to conform his conduct
         to the requirements of law was significantly impaired,
         but not so impaired as to constitute a defense to
         prosecution.

         (G)(2). The defendant was under unusual and
         substantial duress, although not such as to constitute a
         defense to prosecution.

         (G)(3). The defendant was legally accountable for the
         conduct of another under the provisions of § 13-303,
         but his participation was relatively minor, although not
         so minor as to constitute a defense to prosecution.

         (G)(4). The defendant could not reasonably have
         foreseen that his conduct in the course of the
         commission of the offense for which the defendant was
         convicted would cause, or would create a grave risk of
         causing, death to another person.

         (G)(5). The defendant’s age.

Ariz. Rev. Stat. § 13-703(G). It also required the judge to consider any
other “nonstatutory” mitigating circumstances that were “relevant in
determining whether to impose a sentence less than death.” Id.
14                  MURDAUGH V . RYAN

hearings that Murdaugh was under the influence of
methamphetamine at the time of the killing.

    The trial court sentenced Murdaugh to death. The court
found Reynolds’s murder was especially cruel, heinous or
depraved under Arizona Revised Statute § 13-703(F)(6), and
found Eggert’s murder to be an aggravating circumstance
under Arizona Revised Statute § 13-703(F)(1). The court
considered the five statutory mitigating factors. Id. §§ 13-
703(G)(1)–(5). The court found that there was some evidence
to support factor (G)(1), that the defendant’s capacity to
appreciate the wrongfulness of his conduct or conform his
conduct to the requirements of the law was significantly
impaired. This evidence included the four reports prepared
for Murdaugh’s competency determinations before he pled
guilty, his paranoid thoughts, and his long history of chronic
drug abuse. The court also considered the testimony of
Dr. Lang, but “only to the extent her testimony offered
mitigating evidence.” The court ultimately concluded that the
evidence did not establish the (G)(1) mitigating factor.

    The court next found eight non-statutory mitigating
factors: (1) Murdaugh was under the influence of drugs at the
time of the crime; (2) he was a chronic drug abuser; (3) he
has a personality disorder; (4) he experiences paranoid
thoughts; (5) the combination of these four circumstances
may have impacted his mental abilities; (6) he cooperated
with law enforcement; (7) he lacked a prior criminal record;
and (8) he admitted guilt and expressed concern toward the
families of his victims. The court afforded these factors little
weight and the aggravating factors great weight. The court
concluded that the nonstatutory factors were insufficient to
warrant leniency.
                    MURDAUGH V . RYAN                         15

4. Direct Appeal

    The Arizona Supreme Court upheld Murdaugh’s
convictions and death sentence on direct appeal. State v.
Murdaugh, 97 P.3d 844 (Ariz. 2004) (en banc). The court
addressed four issues. First, it held that the delay in
Murdaugh’s case did not constitute cruel and unusual
punishment. Id. at 851. Second, it held that reasonable
evidence supported the trial court’s finding that Murdaugh
was competent to plead guilty. Id. at 852. Third, the court
rejected Murdaugh’s argument that his guilty plea was not
knowingly made because he was not told he had a Sixth
Amendment right to have a jury determine his sentence. Id.
at 853–54. The court held that such a right did not exist at the
time Murdaugh pled guilty. Id. at 853. Additionally, the
court found nothing in the record that indicated that
Murdaugh’s decision to plead guilty was influenced by
whether a judge or a jury would decide if he deserved to be
sentenced to death. Id. at 854.

    Finally, the court addressed Murdaugh’s Ring claim that
he was improperly sentenced by a judge rather than a jury.
Id. at 854–62. The court began by reiterating that Ring error
is procedural error subject to harmless error review, not
structural error as Murdaugh argued. Id. at 854–55.
Reviewing Murdaugh’s sentence for harmless error, the court
found that the (F)(1) aggravating factor fell outside the Ring
rule and that the state had proven the (F)(6) aggravating
factor beyond a reasonable doubt.              Id. at 855–58.
Considering the mitigating evidence adduced during the
penalty phase, including Murdaugh’s sentencing
memorandum, Dr. Lang’s testimony during the sentencing
hearing, the facts as recounted by the trial court, evidence that
Murdaugh took steps to avoid detection, and the competency
16                  MURDAUGH V . RYAN

reports produced before the plea agreement, the court held
that no reasonable jury could find that the evidence was
“sufficiently substantial” to call for leniency. Id. at 859–60.
The court further held that because no mental health
professional found a causal nexus between Murdaugh’s
paranoid thoughts and delusions and the murders, no
reasonable jury would have weighed these factors any
differently than did the trial judge. Id. at 860. Finally, the
court noted that the record did not support any mitigating
circumstance not considered by the trial court. Id. at 861–62.

     Justice Berch dissented on the Ring issue. Id. at 862–64.
She argued that a jury could have found the evidence of
Murdaugh’s mental impairment from chronic drug abuse
more important than the judge did in deciding the (F)(6)
aggravating factor. Id. at 863–64. She also pointed out that
the majority acknowledged that “some evidence support[ed]
a finding of the statutory mitigating factor [of drug
impairment] under [Ariz. Rev. Stat.] § 13-703(G)(1)” making
it plausible that a reasonable jury could have found that the
factor existed. Id. at 864. Finally, she noted that the
aggravating factors here were similar to those in State v.
Pandeli, 65 P.3d 950 (Ariz. 2003), a case in which the court
remanded for resentencing. Id.

5. Post-Conviction Review

    Murdaugh raised twelve claims in his petition for post-
conviction review, and the Arizona state court denied relief.
Concerning his claim that the competency determination was
inadequate, the court found that there was no need for the trial
court to conduct a further competency determination, as the
record was devoid of any evidence suggesting that
                    MURDAUGH V . RYAN                       17

Murdaugh’s decision to plead guilty was not based on his
desire to spare the victim’s family and his family from trial.

    The court held that Murdaugh’s second claim for invalid
waiver of mitigation was precluded because he failed to raise
the claim on appeal. The court further found that Murdaugh
was aware of the mitigation evidence that could be presented
but nevertheless decided not to present it. The court also
noted that the trial court “considered and found mitigation”
despite Murdaugh’s waiver.

   The court found Murdaugh’s third claim for mental
competence was precluded.

    The court dismissed Murdaugh’s fourth claim that his
guilty plea and decision to waive mitigation were involuntary
because they were the products of false promises and threats,
finding that the trial court carefully questioned Murdaugh
during his plea colloquy and that Murdaugh told the trial
court there were no other promises made to him.

     The court set an evidentiary hearing to determine the
merits of Murdaugh’s sixth claim for ineffective assistance of
trial counsel. The court rejected Murdaugh’s claims about
inadequate public financing of his trial and appellate counsel,
finding that there was no legal basis to determine that the
Office of Court Appointed Counsel’s authorized pay scale
was inadequate.

    The court held the trial court’s order that the prosecutor
present mitigation evidence did not create a conflict of
interest, and additionally that this claim was precluded.
18                  MURDAUGH V . RYAN

     Concerning Murdaugh’s claim that the sentencing court
used an unconstitutional nexus text, the court held that the
court used the lack of a causal nexus to weigh the evidence,
rather than to screen it out. The court pointed out that the
trial court did in fact find Murdaugh’s mental state and
methamphetamine addiction at the time of the crime to be
mitigating circumstances, and gave them little weight.

    The court summarily dismissed Murdaugh’s claim that
the Arizona Supreme Court erroneously determined that the
Ring violation was subject to harmless error analysis, and his
claim that his appellate counsel was ineffective for failing to
raise the issue of whether a Ring violation is subject to
harmless error analysis and for failing to raise whether there
was a proper determination that the Ring violation was
harmless error.

    The court also dismissed Murdaugh’s claim that lethal
injection is cruel and unusual punishment.

6. State Court Evidentiary Hearing

    The post-conviction court held an evidentiary hearing to
determine the merits of Murdaugh’s alleged fifteen instances
of ineffective assistance of trial counsel. Murdaugh claimed
his counsel knew or should have known that he was not
competent to waive mitigation and that counsel breached his
duty to investigate Murdaugh’s competency further. The
court reviewed all of the doctors’ reports that trial counsel
had before Murdaugh waived mitigation and found that
nothing in the record, or in the evidence presented during the
evidentiary hearing, showed that Murdaugh’s competence at
the time he waived mitigation had deteriorated from the time
he was deemed competent at his change of plea. Moreover,
                    MURDAUGH V . RYAN                       19

no evidence had been presented to undermine the trial court’s
finding of competence. The court also concluded that
Murdaugh failed to show prejudice both because a competent
defendant has the right to ignore the intelligent advice of his
counsel, and because the mitigating evidence, if presented,
would not have overcome the aggravating evidence. The
court declined to consider trial counsel’s performance.

    The Arizona Supreme Court denied Murdaugh’s petition
for review of the denial of post-conviction relief.

7. District Court Decision

    Murdaugh filed a federal habeas petition, which the
district court denied in full. The court also denied
Murdaugh’s motions for evidentiary development. The court
found that many of the claims were record-based and did not
require evidentiary development. For those that were not
record-based, the court found that Murdaugh had not shown
good cause for discovery or had failed to identify contested
facts bearing on the merits of his petition. The court also
denied an evidentiary hearing. The court granted a certificate
of appealability with respect to eight claims. We expanded
the certificate of appealability to include four additional
claims briefed by Murdaugh on appeal.

                  II. Standard of Review

    We review the denial of habeas relief de novo, Doody v.
Ryan, 649 F.3d 986, 1001 (9th Cir. 2011) (en banc), and the
district court’s findings of fact for clear error, Brown v.
Ornoski, 503 F.3d 1006, 1010 (9th Cir. 2007). We review the
denial of an evidentiary hearing for abuse of discretion.
Stanley v. Schriro, 598 F.3d 612, 617 (9th Cir. 2010).
20                  MURDAUGH V . RYAN

    The Antiterrorism and Effective Death Penalty Act
(“AEDPA”) governs Murdaugh’s petition because he filed it
after the statute went into effect. See Lindh v. Murphy,
521 U.S. 320, 336–37 (1997). AEPDA circumscribes a
federal court’s power to grant habeas relief to a state prisoner.
See Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). “A
state court’s determination that a claim lacks merit precludes
federal habeas relief so long as ‘fairminded jurists could
disagree’ on the correctness of the state court’s decision.”
Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). When
a state court has adjudicated a claim on the merits, we may
grant relief only if the state court’s resolution of that claim
“(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. § 2254(d).

    Clearly established federal law “refers to the holdings, as
opposed to the dicta, of th[e Supreme] Court’s decisions as of
the time of the relevant state-court decision.” Williams v.
Taylor, 529 U.S. 362, 412 (2000). A state court decision can
involve an unreasonable application of Supreme Court
precedent in one of two ways: “[I]f the state court identifies
the correct governing legal rule from [the Supreme] Court’s
cases but unreasonably applies it to the facts of the particular
state prisoner’s case,” or “if the state court either
unreasonably extends a legal principle from [Supreme Court]
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.” Id. at 407. “Stated simply, a federal
habeas court making the ‘unreasonable application’ inquiry
                    MURDAUGH V . RYAN                       21

should ask whether the state court’s application of clearly
established federal law was objectively unreasonable.” Id. at
409. In considering whether the state court unreasonably
applied clearly established federal law, review is limited to
the factual record that was before the state court that
adjudicated the claim on the merits. Pinholster, 131 S. Ct. at
1398.

    In determining whether a state court made an
unreasonable determination of the facts, “it is not enough that
we would reverse in similar circumstances if this were an
appeal from a district court decision. Rather, we must be
convinced that an appellate panel, applying the normal
standards of appellate review, could not reasonably conclude
that the finding is supported by the record.” Taylor v.
Maddox, 366 F.3d 992, 1000 (9th Cir. 2004).

                       III. Discussion

1. Ring Claim

    In Ring v. Arizona (Ring II), 536 U.S. 584, 588–89
(2002), the Supreme Court held that a defendant is entitled to
a jury determination of “the presence or absence of the
aggravating factors required by Arizona law for imposition of
the death penalty.” This holding followed from the Court’s
decision in Apprendi v. New Jersey, 530 U.S. 466, 490
(2000), that a criminal defendant has a Sixth Amendment
right to have a jury determine “any fact that increases the
penalty for a crime beyond the prescribed statutory
maximum.” In response to Ring II, Arizona amended its
capital sentencing scheme. See State v. Ring (Ring III),
65 P.3d 915, 926 (Ariz. 2003) (en banc) (describing Senate
Bill 1001). The new procedure allowed the jury to find and
22                      MURDAUGH V . RYAN

consider the effect of aggravating and mitigating
circumstances and to decide whether the defendant should be
sentenced to death. Ariz. Rev. Stat. § 13-703.01(D) (2002).

    On remand from the Supreme Court, the Arizona
Supreme Court considered the impact of Ring II on all capital
cases then pending on direct appeal. Ring III, 65 P.3d at 925.
The court held that failing to submit capital aggravating
factors to a jury did not require reversing the sentence if the
error was harmless. Id. at 933–36. In reviewing Ring error
for harmlessness, the court concluded that it was required to
consider whether reversible Ring error occurred with respect
to both the aggravating and mitigating circumstances. See id.
at 942–43. In separate opinions, the court then individually
reviewed for Ring error the death sentences of twenty-one
defendants. In nineteen of these cases, the court found Ring
error was not harmless and remanded for resentencing.4
Here, obviously, the court did not.




  4
   State v. Lamar, 115 P.3d 611 (Ariz. 2005); State v. Moody, 94 P.3d
1119 (Ariz. 2004); State v. Dann, 79 P.3d 58 (Ariz. 2003); State v.
M ontano, 77 P.3d 1246 (Ariz. 2003); State v. Nordstrom, 77 P.3d 40
(Ariz. 2003); State v. Rutledge, 76 P.3d 443 (Ariz. 2003); State v.
Prasertphong, 76 P.3d 438 (Ariz. 2003); State v. Ring, 76 P.3d 421 (Ariz.
2003); State v. Cropper, 76 P.3d 424 (Ariz. 2003); State v. Prince, 75 P.3d
114 (Ariz. 2003); State v. Jones, 72 P.3d 1264 (Ariz. 2003); State v.
Phillips, 67 P.3d 1228 (Ariz. 2003); State v. Finch, 68 P.3d 123 (Ariz.
2003); State v. Tucker, 68 P.3d 110 (Ariz. 2003); State v. Lehr, 67 P.3d
703 (Ariz. 2003); State v. Harrod, 65 P.3d 948 (Ariz. 2003); State v.
Pandeli, 65 P.3d 950 (Ariz. 2003); State v. Hoskins, 65 P.3d 953 (Ariz.
2003); State v. Canez, 74 P.3d 932 (Ariz. 2003).
                        MURDAUGH V . RYAN                                23

      A) Scope of the Right

    We must first determine the scope of the right articulated
in Ring II. The state argues that our review for Ring error is
limited by the express wording of Ring II, 536 U.S. at
588–89, which addressed only “the aggravating factors
required by Arizona law for imposition of the death penalty.”5
A narrow reading of Ring II would extend the Sixth
Amendment right no further than its express holding by
concluding that a defendant only has a right to have a jury
determine aggravating factors.

    We are not convinced that Ring II should be read so
narrowly. Echoing Apprendi, the Ring II Court held that a
jury must find any fact upon which the “increase of a
defendant’s authorized punishment [is] contingent.” Ring II,
536 U.S. at 602 (citing Apprendi, 530 U.S. at 482–83). The
Court stressed that “the inquiry is one not of form, but of
effect.” Id. (quoting Apprendi, 530 U.S. at 494) (internal
quotation marks omitted). Because the penalty of death was
contingent on the presence or absence of aggravating factors
under Arizona law, the Court held that Apprendi required a
jury to find them. Id. at 609.

   But the existence of an aggravating factor was not the
only death-qualifying element of Arizona’s superseded
capital sentencing statute. In Ring II, the Supreme Court
described several determinations that had to occur under
Arizona law before a defendant became death-eligible,


  5
    The question presented in Ring II was: “whether [the] aggravating
factor may be found by the judge . . . or whether the Sixth Amendment’s
jury trial guarantee . . . requires that the aggravating factor determination
be entrusted to the jury.” 536 U.S. at 597.
24                     MURDAUGH V . RYAN

including the judge’s determination that “there are no
mitigating circumstances sufficiently substantial to call for
leniency.” Id. at 593 (quoting Ariz. Rev. Stat. § 13-703(F)
(2001)).6 Arizona’s sentencing scheme required a judge “to
determine if there are any mitigating circumstances” and
“weigh them against the aggravators and decide by ‘special
verdict’ whether a death sentence is appropriate.” State v.
Ring (Ring I), 25 P.3d 1139, 1151 (Ariz. 2001) (citations
omitted). The statute required “more than the presence of one
or more statutorily defined aggravating factors to impose the
death penalty.” Ring III, 65 P.3d at 946. It also mandated
that “a trier of fact . . . determine whether mitigating
circumstances call[ed] for leniency.” Id.

    Under the superseded law, a defendant’s eligibility for a
death sentence was effectively contingent on the judge’s
findings regarding both aggravating and mitigating
circumstances. The “ultimate element” qualifying the
defendant for death was “at least one aggravating
circumstance not outweighed by one or more mitigating
factors.” Ring III, 65 P.3d at 935 (citing Ariz. Rev. Stat.
§ 13-703(E)); see also Ring II, 536 U.S. at 593. A judge’s
determination that no mitigating circumstances existed
therefore also served to establish a fact that qualified a
defendant for the death sentence. Applying the rationale of
Apprendi and Ring II, the existence or absence of a mitigating
circumstance was thus a finding of fact upon which the
“increase of a defendant’s authorized punishment [was]
contingent.” Ring II, 536 U.S. at 602.




  6
    Unless otherwise noted, subsequent citations to Arizona statutes refer
to those statutes as they existed in 2001.
                    MURDAUGH V . RYAN                       25

    This reasoning makes sense given the nature of
factfinding at the death-sentencing stage. A finding that
certain facts establish an aggravating factor often necessarily
implies that the same facts do not establish a mitigating
factor. In this appeal, for instance, Murdaugh argues his
dismemberment of Reynolds’s body demonstrates his
paranoia and delusions, and therefore helps establish a
mitigating circumstance. The state argues, conversely, that
the mutilation establishes that the murder was depraved. In
finding that dismemberment supported the (F)(6) aggravating
factor, then, the trial judge also implicitly found that this
evidence did not establish any mitigating factors. The
intertwined nature of the inquiry means that a factfinder’s
analysis of aggravating factors in isolation is conceptually
untenable.

    A jury’s findings concerning aggravating factors are also
necessarily intertwined with its findings about mitigating
circumstances because of the process for hearing evidence at
the sentencing stage. A jury does not hear the aggravating
evidence in a void. Rather, a defendant presents mitigating
evidence, following the state’s presentation of aggravating
evidence, in an attempt to establish some basis for leniency.
See Ariz. Rev. State. §§ 13-752(E)–(G) (2012). It would be
impossible for a jury to consider only the aggravating
evidence in determining whether the aggravating factors were
met without also implicitly considering contravening
mitigating evidence. A jury that has listened to extensive
mitigating evidence about the defendant’s good character, for
instance, may be much less likely to find the defendant acted
heinously or cruelly in committing the offense. The right to
26                       MURDAUGH V . RYAN

have a jury determine aggravating factors is therefore also a
de facto right to have a jury determine mitigating facts.7




 7
   In practical effect, Ring II created a right to have the jury determine all
the facts on which a sentence of death depended, both aggravating and
mitigating, since capital sentencing statutes assigned this function to one
factfinder. See Ring III, 65 P.3d at 943. The capital sentencing statutes
in all states with the death penalty, with the sole exception of Nebraska,
now require juries to consider mitigating evidence, determine the
existence or absence of mitigating circumstances, and decide whether
death is the appropriate sentence. See Ala. Stat. § 13A-5-46(e); Ark. Code
§§ 5-4-602 (3)–(5), 603(a); Ariz. Rev. Stat. § 13-752; Cal. Penal Code
§ 190.3; Colo. Rev. Stat. § 18-1.3-1201(2)(a); Del. Code tit. 11,
§ 4209(c)(3); Fla. Stat. § 921.141(2); Ga. Code §§ 17-10-30(b), 31(a);
Idaho Code § 19-2515(3)(b); Ind. Code § 35-50-2-9(l); Kan. Stat. § 21-
6617(e); Ky. Rev. Stat. § 532.025(1)(b), (3); La. Code Crim. Proc. art.
905.3; M d. Crim. Law § 2-303(i)(1); Miss. Code § 99-19-101(3); Mo.
Rev. Stat. §§ 565.030.4, 565.032; Nev. Rev. Stat. § 175.554; N.H. Rev.
Stat. § 630:5(IV); N.C. Gen. Stat. § 15A-2000(b); N.Y. Crim. Proc.
§ 400.27; Ohio Rev. Code § 2929.03(D)(2); Okla. Stat., tit. 21, § 701.11;
Or. Rev. Stat. § 163.150; 42 Pa. Cons. Stat. § 9711; S.C. Code § 16-3-20;
S.D. Codified Laws § 23A-27A-3; Tenn. Code § 39-13-204; Tex. Code
Crim. Proc. art. 37.071; Utah Code § 76-3-207; Va. Code § 19.2-264.4;
W ash. Rev. Code § 10.95.060; W yo. Stat. § 6-2-102. Although Montana
has not revised its capital sentencing scheme since Ring II, see Mont.
Code 46-18-301, the state also has not sentenced any defendant to
death since 1996. See Death Penalty Information Center, Death
Sentences in the United States from 1977 By State and By Year,
http://www.deathpenaltyinfo.org/death-sentences-united-states-1977-2008
(last visited April 18, 2013).

      The jury plays a similar role in the federal capital sentencing statute.
See 18 U.S.C. § 3594. Even in those states where the ultimate jury
recommendation of death remains nonbinding, the jury retains the role of
first factfinder. See Ala. Stat. § 13A-5-46(e); Del. Code tit. 11,
§ 4209(c)(3); Fla. Stat. § 921.141(2); Ga. Code §§ 17-10-30(b), 31(a); Ky.
Rev. Stat. § 532.025(1)(b), (3).
                        MURDAUGH V . RYAN                              27

     As the Supreme Court has stressed repeatedly, how a fact
is labeled is irrelevant to the Apprendi analysis. See Ring II,
536 U.S. at 602; Apprendi, 530 U.S. at 494. It is the effect of
a fact that dictates whether a jury must determine it.
Apprendi, 530 U.S. at 494; see also Alleyne v. United States,
133 S. Ct. 2151, 2155 (2013) (reiterating that any fact that has
the effect of increasing the penalty for a crime must be
submitted to the jury). Because the existence or absence of
mitigating circumstances directly affected whether Murdaugh
was death eligible under Arizona law, he had a right to have
a jury decide those facts.8

    B) Standard of Review

    We next address Murdaugh’s argument that, contrary to
the holding of the Arizona Supreme Court, Ring error is
structural and should not be subject to harmless error review.

    In Ring II, the Supreme Court did not reach the question
of whether the Ring error there was harmless, noting that
“this Court ordinarily leaves it to lower courts to pass on the
harmlessness of error in the first instance.” 536 U.S. at 609
n.7 (citing Neder v. United States, 527 U.S. 1, 25 (1999)).
The Court reiterated that it had left open the question of
whether the error in Ring II was harmless in Mitchell v.


 8
   A narrow reading of Ring II is particularly problematic for an appellate
court reviewing a Ring error for harmlessness. In many cases, the
question of whether the judge’s role in finding aggravating factors
prejudiced the verdict will depend on the extant mitigating circumstances.
Consider a judge who found two aggravating factors when a jury would
have found only one. If there are no mitigating circumstances to
counterbalance the unblemished aggravator, the error is inconsequential—
but if there are substantial mitigating circumstances, the error might make
all the difference. See State v. Lehr, 67 P.3d 703, 705 (Ariz. 2003).
28                  MURDAUGH V . RYAN

Esparza, 540 U.S. 12, 17 (2003). The Court emphasized that
where it has not set forth a standard of review for a
constitutional error and the Court’s precedent “is, at best,
ambiguous,” a federal court may not overrule a state court’s
decision to apply harmless error review. Id.

     In Ring III, the Arizona Supreme Court definitively
answered this question, applying the harmless error standard
set forth in Neder. 65 P.3d at 935–36. As part of this review,
the court asked whether it could conclude, “beyond a
reasonable doubt, that no rational trier of fact would
determine that the mitigating circumstances were sufficiently
substantial to call for leniency.” Id. at 946. If, in future Ring
error cases, the court could not answer this question in the
affirmative, it would remand the case for resentencing by a
jury. Id. The state challenged the Arizona Supreme Court’s
application of the harmless error test, arguing that this
application of harmless error review, which included review
of the mitigating factors for harmless error, was beyond the
scope of the constitutional error articulated in Ring II. See
Nordstrom, 77 P.3d at 46 n.5. The Arizona Supreme Court
rejected this argument, and the Supreme Court denied
certiorari. See Pandeli, 540 U.S. 962 (2003). Thus, it is now
well-settled that Ring error is subject to the harmless error
test articulated in Ring III, and we may not reconsider the
issue here.

     C) Harmless Error Review

    Harmless error analysis requires federal courts to
determine “whether the error ‘had substantial and injurious
effect or influence in determining the jury’s verdict.’” Brecht
v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos
v. United States, 328 U.S. 750, 776 (1946)). We “apply the
                     MURDAUGH V . RYAN                          29

Brecht test without regard for the state court’s harmlessness
determination.” Pulido v. Chrones, 629 F.3d 1007, 1012 (9th
Cir. 2010) (citing Fry v. Pliler, 551 U.S. 112, 121–22
(2007)). The Brecht standard has been described as follows:

        [I]f one cannot say, with fair assurance, after
        pondering all that happened without stripping
        the erroneous action from the whole, that the
        judgment was not substantially swayed by the
        error, it is impossible to conclude that
        substantial rights were not affected. The
        inquiry cannot be merely whether there was
        enough to support the result, apart from the
        phase affected by the error. It is rather, even
        so, whether the error itself had substantial
        influence.

Merolillo v. Yates, 663 F.3d 444, 454 (9th Cir. 2011) (quoting
Kotteakos, 328 U.S. at 765). “Where the record is so evenly
balanced that a judge ‘feels himself in virtual equipoise as to
the harmlessness of the error’ and has ‘grave doubt about
whether an error affected a jury [substantially and
injuriously], the judge must treat the error as if it did so.’” Id.
(quoting O’Neal v. McAninch, 513 U.S. 432, 435, 437–38
(1995)) (alteration in original) (internal quotations omitted).
Of course, here, the underlying error is the absence of a jury
itself. Accordingly, the Brecht inquiry is whether the absence
of a jury as factfinder at the penalty stage “substantially and
injuriously” affected or influenced the outcome. In other
words, we ask whether a rational jury could have found that
the facts called for leniency. In order to determine whether
Murdaugh has met the Brecht standard, we review the
aggravating and mitigating factors.
30                     MURDAUGH V . RYAN

         a) Aggravating factors

    The Arizona Supreme Court held that the (F)(1)
aggravating factor fell outside the Ring rule and concluded
that the government had proven the (F)(6) aggravating factor
beyond a reasonable doubt.9 Murdaugh does not challenge
the court’s determination as to the (F)(1) aggravating factor.
With respect to the (F)(6) factor, he argues that the Arizona
Supreme Court’s conclusion that any rational jury would have
found the aggravating factor “hinged upon Murdaugh’s
mutilation of the body after the crime,” which the court
further found “needed to be motivated by debasement.”
Since he mutilated the body to avoid detection, Murdaugh
contends a rational jury might not have found the F(6) factor.

    But the court did not “hinge” its determination that the
state had proven the (F)(6) factor on Murdaugh’s mutilation
of the body alone. Murdaugh, 97 P.3d at 856. The court
correctly noted that the (F)(6) aggravating factor would have
been established if the state had proven only one of the
heinous, cruel, or depraved elements. Id. And, although the
court concluded that “mutilation by itself will establish the
elements of heinousness or depravity,” id. at 858, the court
nonetheless found that three other factors also supported a
finding that the act was “heinous or depraved.” According to
the court, the state established beyond a reasonable doubt that



     9
     Recall that the (F)(1) aggravating factor is established when a
defendant “has been convicted of another offense in the United States for
which under Arizona law a sentence of life imprisonment or death was
imposable.” Ariz. Rev. Stat. § 13-703. The (F)(6) aggravating factor is
established if the murder was committed in an “especially cruel, heinous
or depraved manner.” Id.
                    MURDAUGH V . RYAN                        31

(1) Murdaugh relished the murder, (2) the murder was
senseless, and (3) the victim was helpless. Id. at 856.

    Murdaugh is also incorrect in asserting that the Arizona
Supreme Court found the mutilation “needed to be motivated
by debasement.” To the contrary, the court described how
Murdaugh mutilated the body to prevent identification and
cited State v. James, 685 P.2d 1293, 1299 (Ariz. 1984), for
the proposition that “[t]he mode of disposing of the body
itself demonstrates a certain callousness and depravity and
disregard for the victim’s family who might never have
learned of the fate of [the victim].” Id. at 857. Thus,
regardless of Murdaugh’s ultimate purpose in mutilating the
body, the court concluded the mutilation demonstrated
depravity for purposes of finding the (F)(6) factor. Id.

    Although Murdaugh is correct that “heinous and
depraved” refers to the mental state of the defendant, it is the
defendant’s “words and actions” which demonstrate this
mental state. See State v. Gretzler, 659 P.2d 1, 10 (Ariz.
1983) (en banc). The Arizona Supreme Court has repeatedly
held that needlessly mutilating a body is the kind of action
that shows depravity, regardless of the mutilator’s purpose.
See State v. Spencer, 859 P.2d 146, 154 (Ariz. 1993); James,
685 P.2d at 1299. We conclude that no rational jury could
have found that the evidence failed to establish the (F)(6)
factor.

       b) Mitigating factors

    Murdaugh next argues that a rational jury could have
found that his evidence established the (G)(1) mitigating
factor and consequently imposed a sentence of life, not death.
We agree. For the reasons discussed below, we hold that the
32                 MURDAUGH V . RYAN

Ring error had a “substantial and injurious effect or
influence” on the trial court’s failure to find the (G)(1)
mitigating factor and thus the trial court’s imposition of a
death sentence.

    The (G)(1) factor exists if the “defendant’s capacity to
appreciate the wrongfulness of his conduct or to conform his
conduct to the requirements of the law was significantly
impaired but not so impaired as to constitute a defense to
prosecution.” Ariz. Rev. Stat. § 13-703(G)(1). Drug
impairment can be a mitigating circumstance under the (G)(1)
factor, but only if the defendant can show a connection
between the drug use and the offense. See State v. Sansing,
77 P.3d 30, 37 (Ariz. 2003). Typically, testimony by an
expert witness can establish this causal nexus. Id. The claim
of drug impairment is undermined, though, if the evidence
shows “the defendant took steps to avoid prosecution shortly
after the murder, or when it appears that intoxication did not
overwhelm the defendant’s ability to control his physical
behavior.” Id. (quoting State v. Rienhardt, 951 P.2d 454,
466–67 (Ariz. 1997) (en banc)).

    Even though Murdaugh did not present a mitigation case,
the trial court considered the Rule 11 competency reports and
Dr. Lang’s testimony in determining whether the (G)(1)
mitigating factor was established. This evidence included Dr.
Potts’s conclusion that “[t]he use of methamphetamine quite
likely greatly contributed to the alleged offenses having
occurred,” as well as Dr. Sindelar’s summary of Murdaugh’s
“long history of multiple substance abuse, including
intravenous injection of methamphetamine.” Based on this
record, the trial court found that Murdaugh (1) evinced
paranoid thoughts, including his paranoid belief that the CIA
had placed a tracking device in his head; (2) had a long
                    MURDAUGH V . RYAN                         33

history of chronic drug abuse, which may have been a cause
of his paranoid delusions; (3) was ingesting drugs and was
under the influence of drugs when he murdered Reynolds;
and (4) possibly suffered from a personality disorder
amplified by methamphetamine abuse. In considering the
totality of the circumstances, the trial court also found that
Murdaugh arranged for Reynolds to be lured to his home,
imprisoned him for an extended period of time, elaborately
dismembered his body, and then was able to find medical
care for himself when he injured his leg. The trial court
concluded that “[t]he industry and thought, manifested over
an extended period of time, which went into the murder of
David Reynolds belies a finding that the Defendant was
significantly impaired.” On this basis, the trial court held that
the record did not establish by a preponderance of the
evidence that Murdaugh’s capacity to appreciate the
wrongfulness of his conduct or to conform his conduct to the
requirements of the law was significantly impaired, and thus
that the evidence did not establish the (G)(1) mitigating
factor.

    While it is certainly possible that a reasonable jury could
have agreed with the trial judge and found that the facts
surrounding the murder undermined the evidence of drug
impairment in the Rule 11 reports, it is also entirely possible
that a rational trier of fact could have drawn the opposite
conclusion and found Murdaugh’s actions did not evince a
sober mind. See, e.g., Nordstrom, 77 P.3d at 46. This is
particularly true in light of the low burden of proof for
finding a statutory mitigating factor: a nonunanimous jury
need only find the mitigating factor supported by a
preponderance of the evidence. See Ariz. Rev. Stat.
§ 13-703(C). For instance, a reasonable jury might not have
found that Murdaugh’s actions to cover up the murder
34                  MURDAUGH V . RYAN

demonstrated any kind of sober sophistication. Instead of
cleaning up the crime scene, Murdaugh asked Rohrs and
Gross to sprinkle horse manure over Reynolds’s body and on
the surrounding blood, and then left the body there for the
remainder of the day. It was not until that evening—probably
at least eight to ten hours after the crime—that Murdaugh
dismembered the body. Thus, a reasonable jury might not
have found Murdaugh’s attempt to thwart identification of the
body to be inconsistent with a finding that Murdaugh was
“significantly, but only partially, impaired” at the time of the
offense. Gretzler, 659 P.2d at 17. That a rational jury might
have found that the evidence established the (G)(1) mitigating
factor is sufficient to establish prejudice under Brecht.

    The Arizona Supreme Court’s determination that any
error was harmless casts no doubt on our conclusion, because
that court clearly failed to consider evidence in the
record—evidence that the trial court did consider in
determining whether the (G)(1) mitigating factor was
established. In reviewing the trial court’s finding on the
(G)(1) factor for harmless error, the Arizona Supreme Court
stated that it considered the reasoning of the trial court, the
testimony of Dr. Lang and “uncontroverted evidence in the
record . . . that Murdaugh took steps to avoid detection.”
Murdaugh, 97 P.3d at 860. The court found that because
Murdaugh did not present any mitigation, he did not present
“any expert testimony to establish that his ability to control
his behavior or appreciate the wrongfulness of his conduct
was significantly impaired.” Id. (emphasis added). Thus,
“[b]ecause of the complete lack of evidence of a causal
connection between Murdaugh’s drug use and the murder,”
the court concluded “beyond a reasonable doubt that no
rational jury would have found that Murdaugh established the
                    MURDAUGH V . RYAN                       35

(G)(1) mitigating circumstance.”       Id. at 860 (emphasis
added).

    Murdaugh correctly argues that the Arizona Supreme
Court failed to consider the Rule 11 competency reports,
which included expert testimony establishing a direct causal
link between Murdaugh’s drug use and the murder. Under
then-existing Arizona case law, the Rule 11 reports were the
kind of evidence that could have established drug impairment
for purposes of the (G)(1) factor. See Gretzler, 659 P.2d at
16–17 (concluding the evidence supported trial judge’s
finding of the (G)(1) factor when the defendant “used drugs
continuously for a period of over nine years” and “medical
testimony [showed] that this continuous use of drugs likely
impaired defendant’s volitional capabilities”). Moreover, in
applying harmless error analysis in other Ring error cases, the
Arizona Supreme Court has found reversible error as to the
(G)(1) factor based solely on the contradicted testimony of
one expert. See Pandeli, 65 P.3d at 953; see also Nordstrom,
77 P.3d at 46 (finding Ring error where defendant presented
evidence from one expert on the possible connection between
defendant’s alcohol and substance abuse and the murders
even though the evidence “was not particularly compelling”).
Thus, under the Arizona Supreme Court’s own cases, we
cannot see how the Arizona Supreme Court could have
reasonably concluded that no rational jury could find the
evidence here supported drug impairment by a preponderance
of the evidence. Had the Arizona Supreme Court considered
all the evidence in conducting its harmless error review, it
would have been impossible to conclude that no rational jury
could have found the (G)(1) factor.

    We conclude that the absence of a jury at the sentencing
stage had a “substantial and injurious effect or influence” on
36                     MURDAUGH V . RYAN

Murdaugh’s sentence of death. Brecht, 507 U.S. at 637
(internal quotation marks and citations omitted). Although a
jury would have found the (F)(6) aggravating factor beyond
a reasonable doubt, some evidence supported the (G)(1)
mitigating factor. The expert reports, though not drafted for
the purpose of mitigation, provided some details about
Murdaugh’s chronic drug use, which a jury might have found
established drug impairment. Because a jury could have
found that a preponderance of the evidence supported the
(G)(1) mitigating factor, and voted for leniency on that basis,
the Ring error was prejudicial. We must grant the habeas
petition.10

2. Unconstitutional Nexus Test Claim

    Murdaugh next argues that, in reviewing his sentence for
harmless error, the Arizona Supreme Court applied an
unconstitutional causal nexus test to mitigating evidence of
his drug use and delusions.

    Because the state post-conviction court did not address
this claim, we review de novo whether the Arizona Supreme
Court applied an unconstitutional test. In his petition for
post-conviction relief, Murdaugh argued that both the
sentencing court and the Arizona Supreme Court applied an
unconstitutional nexus test. The state post-conviction court
did consider and reject Murdaugh’s claim with respect to the
sentencing court, a decision Murdaugh does not appeal. The
state post-conviction court said nothing, however, regarding


  10
     Though not part of our prejudice analysis here, we note that of the
nineteen Ring cases remanded for resentencing by a jury, eleven have
resulted in a sentence other than death. See Justin F. Marceau, Arizona’s
Ring Cycle, 44 Ariz. St. L.J. 1061, 1077 (2012).
                   MURDAUGH V . RYAN                       37

Murdaugh’s claim about the Arizona Supreme Court. Given
that this claim had arguable merit, and in light of the state
post-conviction court’s otherwise careful consideration and
evaluation of every other claim in Murdaugh’s petition, “the
evidence leads very clearly to the conclusion that a federal
claim was inadvertently overlooked in state court,” thus
permitting de novo review. Johnson v. Williams, 133 S. Ct.
1088, 1097 (2013).

    A state court violates a capital defendant’s Eighth and
Fourteenth Amendment rights to an individualized sentencing
when it excludes or refuses to consider in mitigation evidence
that lacks a causal nexus to the crime. See Smith v. Texas,
543 U.S. 37, 45 (2004) (per curiam); Tennard v. Dretke,
542 U.S. 274, 282–88 (2004). A court may, however,
consider the failure to establish a causal connection between
the mitigating factors and the crime “in assessing the quality
and strength of the mitigation evidence.” Towery v. Ryan,
673 F.3d 933, 945 (9th Cir. 2012) (quoting Schad v. Ryan,
671 F.3d 708, 723 (9th Cir. 2011) (per curiam)).

    Murdaugh argues that an unlawful nexus test was
manifest in the Arizona Supreme Court’s explanation of why
a rational jury would not have weighed the nonstatutory
mitigating circumstances differently than the sentencing court
did:

       The trial court first found that the evidence
       proffered in support of the (G)(1) mitigating
       circumstance also supported a finding of
       [eight] non-statutory mitigating circumstances
       . . . . The reports prepared by Drs. Sindelar,
       Potts, and Scialli do reveal that Murdaugh
       experienced certain paranoid thoughts and
38                     MURDAUGH V . RYAN

         delusions that were likely exacerbated by his
         history of chronic methamphetamine use. But
         because no mental health professional found
         a causal nexus between these conditions and
         the murders, we find beyond a reasonable
         doubt that no rational jury would have
         weighed these factors any differently than did
         the trial judge.

Murdaugh, 97 P.3d at 860 (citations omitted).

     The court’s discussion makes clear that it did not refuse
to consider evidence that was not causally connected to the
crime. See Eddings v. Oklahoma, 455 U.S. 104, 113–14
(1982). After observing that the sentencing court found
eight nonstatutory mitigating circumstances—including
impairment from chronic and concurrent drug abuse, a
personality disorder, and paranoid thoughts—the court
explained that its task was to “determine whether a jury could
have weighed these mitigating factors differently than did the
trial judge,” who “did not give [them] much weight.”
Murdaugh, 97 P.3d at 860. The Arizona Supreme Court took
no issue with the trial court’s finding that the Sindelar, Potts,
and Scialli reports did in fact establish various nonstatutory
mitigating circumstances.11 Rather, the court took the fact
that no expert had drawn a causal link between those
circumstances and Murdaugh’s crime as compelling evidence



  11
     As we discussed in our analysis of Murdaugh’s Ring claim, supra
Section III(1)(C)(b), the court did neglect to consider relevant expert
evidence in its discussion of the (G)(1) statutory mitigating factor. But
nothing in the court’s opinion suggests that omission was the result of
applying a nexus test.
                    MURDAUGH V . RYAN                         39

that a rational jury would have afforded them little weight, as
the trial court did.

    Because the court only raised the issue of a causal nexus
to “determine the weight” that a hypothetical jury would have
“given relevant mitigating evidence,” the Court did not
violate Murdaugh’s constitutional rights. Eddings, 455 U.S.
at 115.

3. Conflict of Interest Claim

    Murdaugh argues that the prosecutor’s presentation of
mitigation evidence at the behest of the trial court violated his
Sixth and Fourteenth Amendment right to conflict-free
representation. Murdaugh argues that the prosecutor acted
simultaneously as counsel for the prosecution and the defense
when he presented a mitigation case on Murdaugh’s behalf.

    A) Procedural Default

     Murdaugh did not raise this claim in his direct appeal to
the Arizona Supreme Court. The post-conviction review
court subsequently held that the claim was precluded under
Arizona Rule of Criminal Procedure 32.2(a)(3), which
forecloses post-conviction relief on claims that are waived “at
trial, on appeal, or in any previous collateral proceeding.”

    Murdaugh’s claim is not procedurally defaulted because
he did not violate a state procedural rule. Arizona courts treat
conflict of interest claims as a species of ineffective
assistance of counsel claims. See, e.g., State v. Jenkins,
715 P.2d 716, 718–19 (Ariz. 1986) (en banc). And Arizona
law only permits defendants to bring ineffective assistance of
counsel claims in Rule 32 post-conviction review
40                  MURDAUGH V . RYAN

proceedings. See, e.g., State ex rel. Thomas v. Rayes,
153 P.3d 1040, 1044 (Ariz. 2007) (en banc). Hence,
Murdaugh’s failure to raise this claim on direct appeal does
not bar federal review. See Lee v. Kemna, 534 U.S. 362, 376
(2002).

     B) Analysis

    A defendant’s Sixth Amendment right to effective
assistance of counsel “includes the entitlement to
representation that is free from conflicts of interest.” United
States v. Wells, 394 F.3d 725, 733 (9th Cir. 2005). To
establish a violation of this right, a defendant “must
demonstrate that an actual conflict of interest adversely
affected his lawyer’s performance.” Id. (quoting Cuyler v.
Sullivan, 446 U.S. 335, 348 (1980)).

    Murdaugh cannot show that his counsel had a conflict of
interest. Murdaugh’s attorney did not present any evidence
in mitigation, because Murdaugh did not let him. The
prosecutor was not transmuted into defense counsel when, at
the trial judge’s request, he presented a mitigation case on
Murdaugh’s behalf, any more than a prosecutor becomes a
defense attorney when he undertakes other acts favorable to
the defendant’s interests, such as disclosing material evidence
or advocating a downward sentencing departure.

     Arizona law does not require the prosecution to confine
its presentation to matters inimical to the defendant: “At the
penalty phase of the sentencing proceeding . . . the
prosecution or the defendant may present any information
that is relevant to any of the mitigating circumstances
included in subsection G of this section . . . .” Ariz. Rev.
Stat. 13-703(C). In presenting a case in mitigation, then,
                   MURDAUGH V . RYAN                      41

Murdaugh’s prosecutor was not even acting outside his
remit—much less acting as de jure defense counsel.

    Because the prosecutor never represented Murdaugh, the
prosecutor’s presentation of the mitigation case did not
violate Murduagh’s right to conflict-free representation.
Murdaugh’s derivative claims that his trial and appellate
counsel were ineffective for failing to raise the conflict of
interest claim are equally meritless. See Boag v. Raines,
769 F.2d 1341, 1344 (9th Cir. 1985).

4. Claims Concerning Murdaugh’s Guilty Pleas

    Murdaugh contends that his guilty pleas were not
knowing, intelligent, and voluntary because (1) counsel was
ineffective in representing Murdaugh leading up to and
during his guilty plea, and (2) the Ring II decision
undermined the voluntariness of Murdaugh’s guilty pleas.
Neither of these claims has merit.

    First, the record does not support Murdaugh’s contention
that counsel was deficient. Murdaugh argues counsel was
ineffective because (1) counsel failed to provide “background
information” to the evaluating doctors in preparation for the
Rule 11 evaluation; (2) he had “excessively limited access”
to his counsel; (3) trial counsel failed to explain the
advantages, disadvantages, and potential consequences of the
plea agreement and instead sent the fact investigator to
discuss the terms of the plea with Murdaugh; and (4) counsel
promised Murdaugh an x-ray to prove there was no tracking
chip in Murdaugh’s head in order to convince Murdaugh to
plead guilty. The record does not show, however, that any
deficiencies in counsel’s performance were “so serious that
counsel was not functioning as the ‘counsel’ guaranteed the
42                  MURDAUGH V . RYAN

defendant by the Sixth Amendment.”              Strickland v.
Washington, 466 U.S. 668, 687 (1984).

    Second, the Arizona Supreme Court did not unreasonably
apply the law or the facts in denying Murdaugh’s claim that
the Ring II decision undermined the voluntariness of his
guilty pleas. Nothing in the record indicates that Murdaugh’s
decision to plead guilty was influenced by whether a judge or
a jury would decide his sentence. And while it is true that the
Supreme Court held that the “new rule” of Ring applied to
criminal cases still pending on direct review, see Schriro v.
Summerlin, 542 U.S. 348, 351 (2004), the mere fact that a
new rule may affect a defendant’s trial rights does not
necessarily undermine the voluntariness of the defendant’s
plea, see Brady v. United States, 397 U.S. 742, 756–57
(1970). Accordingly, the Arizona Supreme Court’s denial of
Murdaugh’s claim was not unreasonable.

5. Competence Claims

     Murdaugh also raises various claims concerning his
competence to waive the presentation of mitigating evidence.
Specifically, Murdaugh contends that he was incompetent to
waive mitigation, that the trial court made an inadequate
determination of his competence to waive mitigation, that
trial counsel erred in handling the mitigation waiver, and that
appellate counsel failed to raise all of the claims related to
this issue on direct appeal. Having granted relief on Claim 1,
we reserve any decision on these competence issues.

                       IV. Conclusion

   Because we reverse the denial of relief on Murdaugh’s
Ring claim, we need not reach the claims concerning
                   MURDAUGH V . RYAN                      43

Murdaugh’s competence to waive the presentation of
mitigating evidence. We otherwise affirm the district court
and remand with instructions to grant the petition unless the
state conducts a new sentencing hearing within a reasonable
period of time. Cf. Jennings v. Woodford, 290 F.3d 1006,
1020 (9th Cir. 2002).

  REVERSED in part, AFFIRMED in part, and
REMANDED.
