               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


MICHAEL APELT,                       Nos. 15-99013
          Petitioner-Appellee/            15-99015
             Cross-Appellant,
                                        D.C. No.
              v.                   2:98-cv-00882-ROS

CHARLES L. RYAN,
         Respondent-Appellant/            OPINION
               Cross-Appellee.


     Appeal from the United States District Court
              for the District of Arizona
      Roslyn O. Silver, District Judge, Presiding

        Argued and Submitted August 9, 2017
                Pasadena, California

               Filed December 28, 2017

     Before: Jerome Farris, Consuelo M. Callahan,
          and John B. Owens, Circuit Judges.

              Opinion by Judge Callahan
2                          APELT V. RYAN

                            SUMMARY*


                Habeas Corpus / Death Penalty

    The panel vacated the district court’s judgment granting
a writ of habeas corpus on Michael Apelt’s claim of
ineffective assistance of counsel (IAC) at sentencing, and
affirmed the district court’s denial of relief on Apelt’s other
claims, in the state of Arizona’s appeal and Apelt’s cross
appeal arising from his habeas corpus petition challenging his
conviction and death sentence for first-degree murder.

     The panel held that while the state court’s alternate ruling
on the merits of the IAC claims does not allow a federal court
to ignore the state court’s finding of procedural default, it also
does not bar a federal court from considering whether there
is cause and prejudice excusing the default under Martinez v.
Ryan, 566 U.S. 1 (2012), and Coleman v. Thompson, 501
U.S. 722 (1991). The panel held that counsel’s performance
on Apelt’s first post-conviction petition was sufficiently
deficient to provide cause for Apelt’s default. The panel
agreed with the district court that Apelt was denied effective
assistance of counsel at sentencing, but concluded that the
state courts’ determination that counsel’s deficient
performance at sentencing was not prejudicial was not
unreasonable. The panel therefore vacated the district court’s
grant of the writ.

   Regarding Apelt’s certified claims, the panel held (1) that
Apelt has not shown that the state court’s denial of funding to

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

investigate mitigation violated his constitutional rights; and
(2) that Apelt has not met his burden of showing that the state
court’s denial of his mental-disability claim under Atkins v.
Virginia, 536 U.S. 304 (2002), is an unreasonable
determination of the facts in light of the evidence presented.

    The panel certified for appeal Apelt’s claims (1) that the
Arizona Supreme Court applied an unconstitutional causal
connection requirement to his mitigation evidence; and (2)
that counsel was ineffective at trial and sentencing for failing
to challenge Apelt’s competency. The panel concluded that
both claims are not persuasive.


                         COUNSEL

Kristina B. Reeves (argued), Assistant Attorney General,
Capital Litigation Section; Lacey Stover Gard, Chief
Counsel; Mark Brnovich, Attorney General; Office of the
Attorney General, Phoenix, Arizona; for Respondent-
Appellant/Cross-Appellee.

Emily Katherine Skinner (argued), Arizona Capital
Representation Project, Tucson, Arizona; Dana Carpenter,
Phoenix, Arizona; for Petitioner-Appellee/Cross-Appellant.
4                      APELT V. RYAN

                          OPINION

CALLAHAN, Circuit Judge:

    In December 1988, Michael Apelt (“Apelt”) and his
brother, Rudi, murdered Apelt’s wife of less than two months
in order to collect on her life insurance policy. The brothers
were tried separately, convicted of first degree murder, and
given death sentences. Having obtained no relief in the
Arizona courts, Apelt filed a habeas petition in the United
States District Court for the District of Arizona. After a stay
of proceedings to allow Apelt to advance a claim in the state
courts based on the Supreme Court’s decision in Atkins v.
Virginia, 536 U.S. 304 (2002), the district court granted the
writ on one issue, ineffective assistance of counsel (“IAC”)
at sentencing, and denied relief on all of Apelt’s other claims.

    In No. 15-99013, the state of Arizona appeals,
challenging the district court’s jurisdiction to reach the merits
of Apelt’s IAC claim, as well as its grant of the writ. In No.
15-99015, Apelt appeals two claims certified by the district
court: the denial in state court of funding to investigate
mitigating evidence, and the determination that Apelt had
failed to show that he was intellectually disabled under
Atkins. In addition, Apelt raises two issues that were not
certified by the district court: whether the Arizona Supreme
Court applied an unconstitutional causal nexus requirement
in reviewing Apelt’s sentence; and whether trial counsel was
ineffective in failing to challenge Apelt’s competency to be
tried and sentenced.

   Apelt’s habeas petition is subject to review under the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2254(d). See Mann v. Ryan,
                      APELT V. RYAN                        5

828 F.3d 1143, 1151 (9th Cir. 2016) (en banc). We first
determine that federal court review was not procedurally
barred. We then vacate the district court’s grant of relief
because we cannot find the Arizona Supreme Court’s
determination that Apelt’s counsel’s deficient performance at
sentencing was not prejudicial to be clearly unreasonable.
See Davis v. Ayala, 135 S. Ct. 2187, 2199 (2015); Cullen v.
Pinholster, 563 U.S. 170, 189 (2011). We affirm the district
court’s denial of relief on Apelt’s claims of inadequate
funding to investigate mitigating evidence, and mental
disability pursuant to Atkins, 536 U.S. 304. We grant the
certificate of appealability for Apelt’s claims of an
application of an unconstitutional causal nexus standard by
the Arizona Supreme Court and for ineffective assistance of
counsel in failing to challenge Apelt’s competency to stand
trial, and we deny those claims on the merits.

                             I.

   A. The Facts

    Michael Apelt, the youngest of seven siblings, was born
in August 1963 in Germany. He came to the United States in
the late summer of 1988. The underlying facts leading to
Apelt’s conviction were fairly and fully set forth in the
Arizona Supreme Court’s opinion, State v. Apelt, 176 Ariz.
349, 861 P.2d 634 (Ariz. 1993), as follows:

       In August 1988, the defendant, his brother
       Rudi Apelt, Rudi’s wife Susanne, and
       Michael’s ex-girlfriend Anke Dorn, all
       German citizens, traveled to San Diego,
       California. The defendant and his brother met
       two women in a nightclub. Cheryl Rubenstein
6                 APELT V. RYAN

    and Trudy Waters lived in Phoenix and were
    in San Diego to cater a party for Cheryl’s
    brother. They spent the evening chatting with
    the Apelts. Because Michael’s English was
    not very good and Rudi’s was worse,
    communication was difficult until they found
    an interpreter among the other patrons of the
    bar. The Apelts first claimed to be wind
    surfing board manufacturers, then Mercedes
    importers. Rudi denied being married.
    Before leaving, the women gave the Apelts
    their addresses and phone numbers.

    Approximately two weeks later the Apelts
    flew to Phoenix. Cheryl picked them up at the
    airport and took them to a hotel in Mesa.
    They soon moved to a nearby Motel 6, but
    pretended to be staying at the Holiday Inn, a
    more expensive hotel nearby. After a couple
    of weeks, they flew back to San Diego, picked
    up Anke Dorn and returned to Phoenix.
    Susanne, Rudi’s wife, returned to Germany.

    Over the next month the brothers met and
    “conned” a series of women, spinning tales of
    wealth and intrigue. The immediate goal of at
    least some of their ruses was to get money and
    other assistance. They were looking for a
    woman to marry Michael.

    On October 6, the Apelts met Annette Clay at
    Bobby McGee’s, a bar and restaurant. Rudi
    claimed to be an international banker.
    Annette gave him her phone number, and
               APELT V. RYAN                      7

Rudi called her on Saturday. She met the
Apelts at Bobby McGee’s that evening, and
introduced them to her friends, Cindy and
Kathy Monkman. Michael immediately
focused on Cindy and spent the evening
dancing and talking with her. He said several
times “you’re the woman I want to marry”
and “me you marry.” He and Rudi claimed to
be computer and banking experts.

During the next week Annette and Cindy saw
the Apelts several times. When Cindy noticed
that after the Apelts visited her apartment she
was missing over $100 in cash, she and
Annette began to get suspicious. They
questioned whether the Apelts were actually
staying at the Holiday Inn and, by calling
several hotels in the area, discovered that the
Apelts were registered at the Motel 6.

When confronted with this information, the
Apelts insisted that there was some mistake.
That evening, after dropping the Apelts at the
Holiday Inn, the women located their room at
the Motel 6 and discovered Anke Dorn.

The next day, the Apelts were furious and
claimed that the women’s snooping destroyed
their “high security clearance” and cost them
their jobs and their work visas. They
explained that Anke was a family friend
whose husband was in the hospital. The
women were apologetic and suggested various
ways they could help the Apelts get their jobs
8                  APELT V. RYAN

    back or find new jobs, but the Apelts refused
    these suggestions. Finally, in frustration,
    Annette exclaimed “what do you want us to
    do, marry you?” The Apelts replied, “yes.”

    Rudi moved into Annette’s apartment and
    Michael moved into Cindy’s.            Annette
    discussed with Rudi the possibility of a sham
    marriage so that he could work in the United
    States, but Rudi insisted that he loved her and
    that if they married it would be forever. He
    also insisted that they keep the marriage
    secret. Rudi had been staying with Annette
    less than a week when Annette discovered
    that the story regarding Anke was a lie.
    Annette asked Rudi to leave and did not see
    him again. Rudi and Anke moved into a
    motel. Thereafter, Michael told Annette
    several times that Rudi had returned to
    Germany. Cindy also believed that Rudi and
    Anke had left the country.

    On October 28, 1988, Cindy and Michael
    were married in Las Vegas. They did not tell
    anyone about the marriage. On November 7,
    at Michael’s suggestion, they consulted Doug
    Ramsey about a million dollar life insurance
    policy. Cindy believed Michael was wealthy
    and that purchasing large insurance policies
    was a customary investment practice for
    couples in Germany. Ramsey informed them
    that they could not get such a large policy but
    that they might qualify for a $400,000 policy.
               APELT V. RYAN                      9

They filled out an application, and Cindy
wrote a check for the first month’s premium.

Around this time, and continuing up to the
time of the murder, the Apelts and Anke
began a series of shopping sprees. They
looked at expensive Piaget and Rolex
watches, at one time contracting to buy three
for a total price of approximately $130,000.
They looked at expensive boats and cars,
arranging to buy two Jaguars for $144,000
and two Toyota Supras for about $66,000.
Their pattern was to fill out a purchase
contract, make a nominal down-payment with
assurances that they would pay cash upon
receiving money from sources in Germany,
and then never return. They drove to the
stores and car dealers in Cindy’s Volkswagen.

During one of the first shopping trips, Michael
told Anke that if Cindy died an unnatural
death, he would be rich. By this time they
were without funds. Michael paid most of
Rudi’s and Anke’s expenses with Cindy’s
money, even though Cindy’s income from her
two part-time jobs was very modest. She
withdrew over $4,000 from an account from
October through December 1988.

On November 25, Ramsey informed Michael
and Cindy that they could only get a $100,000
life insurance policy. They executed a change
form and, on November 30, applied for a
$300,000 policy from another company.
10                  APELT V. RYAN

     Early in December, Rudi and Anke reserved
     a rental car for December 9, specifically
     requesting one with a large trunk. Around
     this time, Ramsey informed Cindy that the
     second insurance company would not approve
     their application for a $300,000 policy until it
     had more background and financial
     information. Cindy provided the needed
     information, and Ramsey resubmitted the
     application. In the interim, Rudi cancelled the
     car reservation.

     On December 22, 1988, Ramsey informed
     Cindy and Michael that the $300,000 policy
     was approved and would be effective after
     Cindy gave him a check for the premium. He
     also delivered the $100,000 policy.

     On the morning of December 23, Cindy and
     Michael took the Volkswagen in for some
     repairs and rented a Subaru. Cindy was busy
     getting ready to leave the next day for Illinois
     with her sister Kathy. She made plans to meet
     her friend Annette for dinner at 8:00 p.m. to
     exchange gifts. She also planned to bring
     along Maria, a young woman she had been
     counseling.

     The Apelts also were busy. Michael took
     Rudi and Anke to a rental agency where they
     rented the car with the large trunk that they
     had originally reserved for December 9. Late
     in the afternoon, Michael returned to Rudi’s
     and Anke’s motel room. Michael told them
               APELT V. RYAN                      11

that they could have a “lot of money” if he
killed Cindy. They agreed to kill Cindy that
evening. They made plans to meet in front of
a German restaurant and proceed from there
to the desert, where Cindy would be killed.
Michael stated that he would bring Cindy and
make sure she could not see where they were
going.

Cindy spoke with her father on the phone and
then had a telephone conversation with Maria
from 6:50 p.m. to 7:00 p.m. confirming that
she and Michael would pick her up at
7:45 p.m. Maria heard Michael arriving in the
background.

Anke and Rudi drove their rented car to the
German restaurant at around 7:00 p.m. and
waited. Michael drove by in the Subaru
approximately 15 minutes later, but Anke did
not see Cindy in the car. Anke and Rudi
followed Michael on Main street toward a
desert area where they had earlier practiced
shooting a crossbow. Rudi turned off the road
when he reached this location, but Michael
continued on. Rudi drove around in the desert
for a while before spotting Michael’s car. He
drove toward it, stopped some distance away,
and got out of the car after ordering Anke to
remain. He returned to the car after about five
minutes and both he and Michael drove to the
motel where Anke and Rudi were staying.
The brothers showered and changed clothes.
12                 APELT V. RYAN

     The Apelts and Anke met at Bobby McGee’s
     at 10:30 p.m. and asked for a table for four.
     After waiting a while, ostensibly for
     Michael’s wife, they ordered dinner. Michael
     and Rudi discussed their alibi. They had
     several drinks after dinner in the lounge area
     and then went to another nightclub. Michael
     arrived home at around 2:00 a.m. on
     December 24th after leaving Rudi and Anke
     at their motel.

     There were many calls on the answering
     machine from Annette, Kathy, and Maria, all
     of whom were worried because Cindy failed
     to show up for dinner or call Kathy as
     planned. Annette called again and spoke with
     Michael, who told her that Cindy left the
     house at around 7:00 p.m. after receiving a
     phone call from an angry man. He claimed
     that she said she had to meet someone and
     would meet Michael at Bobby McGee’s at
     10:00 p.m. Annette came over to the
     apartment and called the police. She noticed
     that Cindy’s purse was still in the apartment.
     A police officer came and spoke with Michael
     and Annette. Michael told his story to the
     officer.

     Cindy’s body was found in the early afternoon
     of December 24th. She had been stabbed
     once in the lower chest and four times in the
     back. Her throat had been slashed so deeply
     that her head was nearly severed from her
     body. There were a tremendous number of
              APELT V. RYAN                      13

bruises on her face and body. Police found a
length of nylon cord and a blood soaked beach
towel near her.

There were many tire tracks in the area,
although only two were clear enough to be of
use. These were consistent with the tires on
the car driven by Anke and Rudi. There was
also a fairly good shoe impression near the
body and a partial shoe print on the victim’s
face as though the murderer had kicked or
stepped on her head. These were later found
to be consistent with a particular style of
Reebok tennis shoes.

Anke and Rudi were interviewed later that
day and corroborated Michael’s story. They
claimed they saw Cindy leaving the apartment
at 7:00 p.m. as they were arriving, at which
time she promised to meet them later at
Bobby McGee’s. When questioned, Michael
denied owning tennis shoes.

Late on the evening of December 25, Rudi
and Anke accompanied Michael as he drove
the rented Subaru around the Salt River
bottom. He drove erratically, making hard
turns and slamming on the brakes in an effort
to change the tread of the tires so they could
not be linked to the murder scene. Two of the
tires had to be replaced after the car was
returned to the rental agency because they had
flat spots caused by his driving.
14                 APELT V. RYAN

     Michael borrowed some money, using the
     insurance policy as collateral, and the
     threesome flew to Illinois for Cindy’s funeral
     on December 31st. Although Michael cried at
     the funeral, Kathy saw him laughing and
     being jovial as he drove away after the
     service. That evening, Michael told Anke that
     Cindy had signed her own death warrant when
     she signed the insurance papers, but he
     regretted killing her.

     The Apelts and Anke returned to Phoenix on
     January 2nd. The next morning they flew to
     Los Angeles and paid a homeless man $20 to
     record the following message over the phone
     and onto Cindy’s answering machine:

            Hear what I have to talk. I
            have cut through the throat of
            your wife and I stabbed and
            more frequently in the
            stomach in the back with a
            knife. If I don’t get my stuff,
            your girlfriend is next and then
            your brother and last it is you.
            Do it now, if not, you see what
            happens.       My eyes are
            everywhere.

     They then returned to Phoenix. Michael
     contacted Detective Davis, a police officer
     who spoke fluent German, and asked him to
     translate the message. Detective Davis
     listened to the message over the phone and
              APELT V. RYAN                      15

instructed the Apelts to bring the tape to the
police station the next day.

The police had discovered the insurance
policy and identified Michael as a possible
suspect in Cindy’s murder. The bogus taped
threat confirmed their suspicions and, fearing
that Anke or the Apelts might leave the
country, the police arranged to have a
surveillance team watch them on the night of
January 5. Eleven officers were deployed
around the apartment complex at 5:30 p.m.
Shortly after 8:30 p.m. one of the officers
knocked on the Apelt’s [sic] door to make
sure they were home. When Michael
answered the door, the officer asked for a
fictitious person and was told he had the
wrong apartment. Immediately after this, Rudi
and Michael called the police and reported
that three tall black men had just appeared at
their door and threatened them.           The
surveillance team was contacted, and they
confirmed that this had not occurred.
Detective Davis told the Apelts and Anke to
come to the police station the next day to
make composite sketches of their assailants.

Accordingly, on January 6th, Anke and the
Apelts went to the police station. The police
spoke with Michael and Rudi individually and
played along with them by preparing artist’s
sketches. After leaving Anke in the lobby for
a couple of hours, the police began
interrogating her. They urged her to tell the
16                 APELT V. RYAN

     truth. They threatened her with prosecution,
     promised her immunity in exchange for her
     confession, and showed her photographs of
     Cindy’s body in an appeal to her conscience.
     Anke confessed and the Apelts were arrested.

     On January 9th, the police searched Cindy’s
     apartment pursuant to a warrant. They seized
     a number of items, including the Apelts’
     shoes, the crossbow, and business cards that
     led the police to some of the jewelry stores
     and car dealerships that the Apelts visited on
     their shopping sprees. They also seized two
     rolls of film that contained pictures of
     Michael wearing tennis shoes with tread
     matching the footprint and impression left at
     the murder scene.

     While the brothers were in jail, Anke wrote to
     Rudi several times. These letters, which
     contained various incriminating statements
     reflecting Anke’s version of the events
     surrounding the murder, were seized pursuant
     to two search warrants.

     Michael sent Rudi a note in German that,
     translated, stated in part:

            I have a guy who is getting out
            in two-four days and then
            we’ll be free in one to two
            weeks. It won’t matter if the
            police have anything or not.
            We’re in jail and won't be able
                       APELT V. RYAN                         17

                to have done that, so don’t do
                anything, okay!       Because
                when a woman is dead, the
                same thing will have
                happened, we’ll be free and
                I’ll have the money because
                the police won’t be able to do
                anything.

        The note was intercepted by a fellow inmate
        and turned over to the police. After the police
        interviewed this inmate, they obtained and
        executed a search warrant of Michael’s,
        Rudi’s, and adjoining cells. Police seized
        other communications between the brothers,
        several of which were introduced at trial.

        Michael and Rudi were tried separately. Anke
        was granted immunity from prosecution in
        exchange for her testimony at both trials.

861 P.2d at 638–42.

    B. The Trial and Sentencing

   Apelt was charged with first degree murder and
conspiracy to commit first degree murder, and attorney
Michael Villarreal was appointed to represent Apelt. Apelt
was tried in April 1990, testified in his own defense, and was
convicted of both murder and conspiracy to commit murder.
Apelt, 861 P.2d 634.

   A presentence hearing was set for August 7, 1990. On
June 8, Villarreal filed a motion for travel funds for him to go
18                     APELT V. RYAN

to Germany to investigate possible mitigating evidence. He
told the court:

       Basically, Your Honor, what I need to do - -
       and I think the Court is aware my partner
       went to Germany at our expense last year, as
       far as travel, not the hours worked, and the
       reason for that trip was to contact - - basically,
       we are building up a character defense, and I
       was looking into some areas of my client
       having been in some type of psychological
       institution early in his life. We gathered - -
       we learned other information. We did not get
       any information we used at trial as far as good
       character witnesses or any rule - - we didn’t
       file any Rule 11 hearing nor anything of that
       sort based on what we learned over there at
       that time.

       However, Your Honor, I think it’s important
       and necessary that we travel at this time, that
       I travel this time to Germany to locate and
       contact witnesses there. Mr. Apelt has had his
       entire life in Germany except for the year and
       a half now that we know he was here in the
       United States, and there is also the issue of
       that psychological hospitalization that he
       under went, and I want to explore that area.
       Also, Your Honor, there are some other
       matters that came to light in his past regarding
       a difficult child birth, things of this sort that I
       need to check into, and I would ask
       permission to travel to Germany. I believe the
       airfare right now, going only on what I see in
                      APELT V. RYAN                       19

       the newspaper, Your Honor, is somewhere
       around $800.00 round trip to Dusseldorf. I
       think that’s out of Los Angeles, I’m not sure.

       I also filed a companion motion for an
       interpreter. My partner, who went on that
       trip, found herself at a great disadvantage
       traveling in Germany. She, like myself, does
       not understand a word of German, and we
       thought family members would be able to
       interpret for us. It just didn’t work out. Their
       English wasn’t good enough. Other people
       who they thought might be able to help,
       friends and whatnot who would be able to
       help with interpreting weren’t available. I
       understand they have their own lives to lead,
       have their own jobs and whatnot. So if I do
       go, Your Honor, I am going to need an
       interpreter. I need someone so there is no
       problem, no delay and I can understand and I
       can make myself understood to the people I
       am talking to. I am going on that $50.00
       based on what our interpreter believes she
       believes is the going rate over there. I don’t
       know what it is, Your Honor.

    The prosecutor interjected that perhaps it would be more
efficient and economical to hire an investigator in Germany.
Villarreal responded:

       I do have leads on what I’m looking for, Your
       Honor. I’m not just going over there on a
       fishing expedition. I have also gone through
       the consulate here. I have learned through the
20                  APELT V. RYAN

     consulate in Los Angeles that they are not
     going to be much help in this case. The
     German government’s position in these
     matters, and as I understand from the
     consulate and a Mr. Fisher I have spoken to in
     Los Angeles, they let the German citizen go
     through the entire process, all the way through
     to the ending of appeals, actually serving of
     the sentence or in this case if my client were
     to receive the death penalty, the possibility of
     the impending death penalty. At that point the
     German government would take a position.
     They do have apparently a very strong anti-
     death penalty position in their country,
     because they don’t have the death penalty in
     their country and they don’t like it when other
     countries impose the death penalty on their
     citizens, but my understanding is they keep
     their hands off and they let the other country
     take care of the crime and punishment, and
     then only at that point they take the position
     whether or not they will assist in anyway or
     whatever help the German government feels
     it needs to make. So I’ve gotten no help from
     the German government. I was hoping at the
     beginning of this case that they would be
     more cooperative. I believe Ms. Hughes
     mentioned a year or so ago when she went to
     Germany she didn’t get a whole lot of
     cooperation other than the police department
     was a little cooperative to some degree, but
     that was about it.
                             APELT V. RYAN                             21

    The trial judge commented that “this has been a very
expensive case to this point in time, and I am concerned about
when it is the defendant has the right to have all these things
furnished to him at no cost.” The judge noted that the costs
had already exceeded $200,000.00. The court gave Villarreal
a week to submit a statement, “a verification as to those items
that you feel that your trip to Germany is a necessity for.”

    Villarreal did not submit such a statement. Instead, at the
August 7, 1990 hearing, he sought a continuance and again
argued that he needed to undertake an investigation in
Germany.1 Arizona objected to a further continuance,
arguing that the court had “indulged every whim of this
defendant and his counsel in allowing him to present an
adequate defense and fully investigate this case.” The
prosecutor further noted that Villarreal had provided some
documents that he acquired through a German lawyer and
through Amnesty International. Villarreal denied that either
the attorney or Amnesty International had been of any help.2


    1
     Citing a booklet by the Prisoners Defense Committee, and published
by Washington and Lee School of Law, Villarreal listed the types of
documentary evidence that he wanted to investigate (i.e., birth records,
school records, mental health records), as well as the types of people he
wanted to interview (i.e., relatives, teachers, employers).
    2
        Villarreal stated:

           [T]he attorney from Germany never contacted me.
           What he sent I never knew until it came to the
           newspaper, evidently the Phoenix Gazette, and then
           somehow it got to the prosecutor and who then sent it
           to me. That’s how I got those records. Amnesty
           International did not do anything in this case, except
           they were contacted by Mrs. Schmitt [Apelt’s mother]
           at the last minute regarding the instructions I had given
22                            APELT V. RYAN

    The trial court denied Villarreal’s motion to continue, and
proceeded with the presentencing hearing. The prosecutor
indicated that she would rely on the testimony presented
during the course of the trial and asserted three aggravating
circumstances: (1) Apelt committed the crime for pecuniary
gain; (2) the crime was heinous, cruel and depraved; and (3)
Apelt procured the assistance of another by promise of
payment.

   The court then asked Villarreal for whatever evidence he
would proffer in mitigation. He offered eight exhibits that he
had received the day before through fax and overnight mail.3


            her on the phone. They corrected her confusion. What
            they did is give her advice as to what to look for. She
            found the records. All they did was type the printed
            letters that had been sent to me. They typed them so it
            would be easy for me to read them or my interpreter to
            read the German, and then they faxed one set of
            records. They sent through overnight mail - - they sent
            it all to New York. One set they sent by overnight
            mail, the other set they faxed. They had no part in
            investigating this case or having anything to do with the
            case.
     3
         The district court described these documents as follows:

            1. A letter from Apelt’s brother disputing that Apelt
            could have been involved in the murder;

            2. A letter from one of Apelt’s friends stating Apelt
            had been a “good and honest friend”;

            3. A letter from Apelt’s uncle stating he had known
            Apelt since childhood and Apelt had been raised to
            “become [a] good human being[]”;

            4. A letter from Apelt’s mother stating in part, “Even
                         APELT V. RYAN                            23

After receiving the exhibits, which had just been translated
into English the night before, the court took a recess to allow
the prosecutor to review the documents.

    After the recess, the prosecution called Detective Ronald
Davis as a rebuttal witness. Davis spoke German, had been
involved in the investigation of Cindy’s murder, and had
traveled to Germany to investigate Apelt. He testified that he
spent an entire day with the Dusseldorf police who did not
show him Apelt’s criminal record, but read the record to
Davis.

   Villarreal objected to Davis’ testimony as unsubstantiated
hearsay. The prosecutor responded that the letters submitted
by Villarreal were in the nature of character references and
Arizona was entitled to rebut them. The judge initially was
dubious of Arizona’s position, but was persuaded by



       though my sons had contact with the law, they were
       never capable of such violence. I can just say as their
       mother, that they grew up normally.”;

       5. A letter from Apelt’s sister stating “my brothers are
       and were no angels but it takes a lot to commit such a
       brutal crime” and “I do not believe that my brothers are
       able to commit such a mine [sic] and brutal crime.”;

       6. A letter from a doctor stating Apelt “was treated for
       various illnesses” between August 1984 and July 1988;

       7. A letter from a past employer stating Apelt’s
       behavior from September 1984 to February 1987 was
       “unobjectionable”; and

       8. A certificate from the German military stating Apelt
       had served from 1982 to 1983.
24                     APELT V. RYAN

Arizona’s argument that the testimony was relevant to
whether the life sentence for conspiracy should run
consecutively or concurrently with the death penalty.

    Davis then testified that Apelt had a felony conviction and
that Apelt’s former wife told him that Apelt had “been
involved in some sort of attack involving a knife with a
homosexual partner.” Davis reported that the former wife
also stated that Apelt was quite capable of committing murder
for money, and had asked her to donate one of her kidneys in
order for him to get money.

    In her summation, the prosecutor, after noting the three
aggravating factors, argued that there were no mitigating
factors. She argued:

       There are none of the factors that are so
       frequently offered to avoid the death penalty,
       such as poor childhood. This defendant
       himself told the probation officer that he had
       a normal childhood. There is no evidence of
       any mental disease or defect such that might
       mitigate his crime and call for leniency. In
       fact, the medical records that were submitted
       to the Court, albeit they are probable records
       by people not qualified to give it, but his
       family doctor seems to indicate that there was
       no sign of any mental disease or defect.

    In response, Villarreal first questioned whether there was
really evidence of intent for financial gain or that the crime
was particularly cruel, heinous, and depraved. He then
offered the following arguments in mitigation: (1) Apelt was
only 25 years old at the time of the crime; (2) there is
                          APELT V. RYAN                               25

remorse; (3) he cooperated in the pre-sentence report; (4)
Apelt has recently found Christ; (5) there is a lack of a prior
record of any serious crime; (6) Apelt has an honorable
military discharge; (7) Apelt displayed good behavior at trial;
(8) Germany has a strong position against the death penalty;
and (9) some of the victims favored a life sentence.4
Villarreal also mentioned some of the areas of mitigation that
he had not been able to pursue, such as Apelt’s capacity to
appreciate wrongfulness of conduct, reports of
“hospitalization in a clinic, some type of psychiatric clinic,
emotional disturbance clinic of some sort in Germany,” and
possible low intelligence and lack of education. But, because
he could not travel to Germany, he was not able to obtain
such information.

    On April 13, 1990, the trial judge imposed the death
sentence. Villarreal continued to represent Apelt on his direct
appeal.

    C. Initial Post-Conviction Proceedings

    Rudi was tried the week after Apelt and was sentenced
and convicted of first degree murder. On May 28, 1991,
Villarreal filed a post-conviction petition on behalf of Apelt.
The petition was based on the testimony of a Dr. DiMaio in
Rudi’s trial. The petition asserted:

         The Testimony of Dr. DiMaio was clearly that
         the murderer of Cynthia Apelt was right


    4
      Although Cindy’s parents asked the court to impose the death
penalty, two of Cindy’s close friends stated that they did not want the
death penalty, but wanted Apelt put away in prison where he can never get
out.
26                     APELT V. RYAN

       handed. Michael Apelt is left handed. The
       testimony of Dr. DiMaio would have added
       credibility to Michael Apelt’s testimony that
       he did not kill his wife. It would also have
       impeached the testimony of Anke Dorn that
       Michael Apelt killed his wife.

The Superior Court of Pinal County denied the petition on
May 28, 1991.         The Arizona Supreme Court then
consolidated the denial of the first post-conviction petition
with Apelt’s direct appeal.

     The Arizona Supreme Court affirmed Apelt’s conviction
and sentence, rejecting a host of arguments advanced by
Villarreal. Apelt, 861 P.2d 634. Of greatest concern in this
federal habeas proceeding is the court’s treatment of Apelt’s
challenges to his sentence. The court characterized the first
challenge as whether “the trial court err[ed] by refusing to
fund a trip to Germany so defense counsel could look for
mitigating evidence.” Id. at 642. The court determined that
there was no error because a defendant must demonstrate how
the requested assistance would be beneficial and why it is
necessary for a fair trial, and Apelt had failed to make such a
showing. Id. at 651. The court noted that Villarreal failed to
file a statement showing why the proposed trip to Germany
was necessary, and that the adequacy of a showing is left to
the discretion of the trial judge. Id. The court commented
that counsel did not explain why psychological
hospitalization might be mitigating, or “why a difficult
                            APELT V. RYAN                            27

childhood and lack of education would be mitigating.”5 Id. It
concluded that because Apelt “failed to show that helpful
evidence was available in Germany,” he had no right to
funding under the statute or the due process clause of the
Fourteenth Amendment. Id. at 652.

    The Arizona Supreme Court addressed two questions
concerning the appropriateness of the death sentence: (1) did
the court err in finding three aggravating factors; and (2) did
the court err in “finding that there were no mitigating factors
sufficient to outweigh the aggravating factors.” Id. at 642.
The court found that there was more than sufficient evidence
to support each of the three aggravating elements. Id. at
652–53. It also found that the trial court had considered the
“mitigating” factors proffered by counsel and had not
imposed an impermissibly high burden or failed to weigh the
factors properly. Id. at 653. It independently reviewed the



    5
        The Arizona Supreme Court noted:

          Defendant’s claims that he had a difficult childhood and
          little education conflicted with his statements in the
          presentence report that his childhood was fairly normal
          and that he had the equivalent of a high school
          education. Likewise, we cannot conclude that the
          absence of records of the alleged psychological
          hospitalization prejudiced defendant. He did not even
          consult a psychiatrist to testify regarding his probable
          psychological condition at the time of the murder.
          Instead, he submitted a letter from a doctor in Germany
          who stated that he had treated defendant for various
          illnesses during the four years prior to the murder and
          observed no psychological problems during that time.

Apelt, 861 P.2d at 651–52.
28                            APELT V. RYAN

record and found three aggravating and no mitigating factors.6
Id. at 654.

    As to the post-conviction petition, the court rejected
Apelt’s request for an evidentiary hearing, finding that Dr.
DiMaio’s testimony would not have changed the outcome of
the trial because it made no difference whether Apelt or Rudi
wielded the murder weapon. Id.

     D. Apelt’s Second Post-Conviction Proceedings

    On December 4, 1995, Apelt, now represented by new
counsel, filed an “amended petition for post-conviction
relief” in the Superior Court for the County of Pina (the
amended petition is generally referred to as the “PCR”). The
PCR raised ten issues, including assertions that Apelt was
denied effective assistance of counsel during the penalty
phase of his case, on direct appeal, and on his first post-
conviction petition. Many of the assertions were based on
newly discovered materials. The federal district court
described the materials as follows:




     6
         The court stated:

            We have independently reviewed the record and agree
            that the defendant failed to prove any mitigating factors
            sufficient to call for leniency. He has failed to advance
            any credible argument as to why some factors should be
            considered mitigating at all. We note that it was in the
            defendant’s own best interest to cooperate with the pre-
            sentence report writer and behave well at trial.

Apelt, 861 P.2d at 653.
               APELT V. RYAN                      29

In support of these claims regarding
Villareal’s performance, PCR counsel pointed
out Villareal had been aware Apelt had been
hospitalized in Germany but Villareal “failed
to gather the records and background
information necessary for a thorough and
complete mental health evaluation.” Villareal
had also “failed to investigate, develop, and
present substantial mental health evidence”;
failed “to identify, locate and investigate
potential mitigation witnesses”; and “failed to
properly develop or present adequately expert
testimony.” PCR counsel further claimed
Villareal had failed to present evidence that
Apelt “came from a family background of
gross poverty, alcoholism and violence which
included emotional, physical and sexual
abuse”; that Apelt “has a history of mental
illness and has received psychiatric/
psychotherapeutic treatment in Germany”;
that Apelt “was in special education as a
child,” “suffered from a nervous disorder,”
and had attempted suicide “and that Apelt was
mentally, physically, and sexually abused by
older men throughout his childhood and
mentally disturbed while in school.”

These claims by PCR counsel were supported
by “a plethora of documents from Germany
obtained by . . . counsel through
correspondence.” The documents submitted
by PCR counsel included “a report on the
situation of the Apelt family,” prepared by the
Dusseldorf Industrial Welfare Organization.
30                 APELT V. RYAN

     The report was based on information provided
     by Apelt’s mother and social worker who had
     worked with the family when Apelt was a
     child. The documents also included an
     affidavit from Apelt’s mother. The report and
     affidavit recounted what follows.

     Apelt’s father was an abusive alcoholic who
     beat his wife and children, including Apelt,
     with an iron rod. Apelt’s father sexually
     abused his wife and attempted to engage in
     sexual misconduct against his daughters. As
     a child, Apelt was sexually molested by older
     men on two occasions. The first time was
     when Apelt was seven. He was taken from
     his yard and driven to a house where he was
     forced to have intercourse. The second time
     was when Apelt was thirteen. Apelt had been
     walking home from school when he and a
     friend were tricked into going into a cellar
     where a man holding a knife forced Apelt to
     have intercourse. The incidents left Apelt
     “mentally disturbed.”

     Apelt’s family was very poor while he was
     growing up. The family of nine lived in a
     five-bedroom apartment and his father did not
     work on a regular basis. The family survived
     on government support and his mother’s
     earnings as a cleaning lady. The children
     were forced to go to work at age fourteen. All
     of the Apelt children “immediately after
     reaching emancipation, left home in order to
                          APELT V. RYAN                               31

         escape the abusive, sexually abusive and
         violent situations.”

         Beyond the report from governmental agency
         and affidavit from Apelt’s mother, PCR
         counsel also submitted a medical report from
         the Psychosomatic Clinic in Dusseldorf where
         Apelt received in-patient treatment. That
         medical report was from 1986 and it described
         Apelt as suffering from “shortness of breath,
         vertigo, and pain in the left arm.” The report
         indicated that Apelt may have suffered
         medical complications during his birth. The
         report recounted that Apelt had attended
         special education because he spoke with a
         lisp.

    Attached to the PCR was an affidavit from attorney
Villarreal.7 He stated that: (a) he “did not hire an investigator
in Germany to investigate any mitigation”; (b) he “did not file
a supplementary statement at the court’s request following
the denial of funds by the court for the trip to Germany”; (c)
“[a]ny lack of investigation or preparation during the penalty
phase of this case was not a tactical or strategic decision”; (d)
“Mr. Apelt did not take an active role in the development of
mitigation”; and (e) he “did not withhold any objections,
claims or defenses in order to gain a tactical or strategic
advantage.”

    On January 23, 1996, Apelt filed a supplement to the PCR
asserting that he was entitled to an evidentiary hearing (a)

   7
      Apelt’s first attorney spells his last name “Villarreal,” but it is
sometimes spelled “Villareal” in the record.
32                        APELT V. RYAN

pursuant to Ake v. Oklahoma, 470 U.S. 68 (1985), concerning
his constitutional right to state-funded expert assistance, and
(b) on whether his trial counsel was ineffective in failing to
thoroughly investigate material aspects of his case.

    Arizona filed a comprehensive response to the PCR,
setting forth a detailed account of Apelt’s actions leading up
to the murder. It then argued that most of Apelt’s claims,
including his IAC claims, are precluded under Arizona Rule
of Criminal Procedure 32.2, which, in essence, provides that
a defendant may not raise an issue that was not raised but
could have been raised “at trial, on appeal, or in any previous
collateral proceeding. The response also asserted that
although Apelt’s claim of IAC by appellate counsel was not
precluded, Apelt had not alleged any specific misdeeds that
would overcome the deference due to counsel. The response
also denied that Apelt had alleged any colorable claim of
newly discovered material evidence.8             The evidence
concerning Apelt’s background could not be newly
discovered because it was within Apelt’s personal knowledge
and was not diligently presented. Arizona further argued that
Apelt cannot tie the evidence “to his cold-blooded
commission of the murder, and none is ‘positive’ character
mitigation—at most it seeks some sort of pity or sympathy,
which [Apelt] is not entitled to have considered in
mitigation.” The response also argued that there is no

     8
       Arizona argued that evidence that Anke Dorn lied in her testimony
was basically irrelevant because while she may have sugar coated her
involvement, the evidence overwhelmingly corroborates Apelt’s
involvement, and, in any event, Anke was in Germany and not available
to testify. As to Apelt’s claim that he wore a size 16 shoe and the shoe
print at the scene was a smaller size, Arizona argued that this issue was
fully litigated at the trial and Apelt had offered no newly, discovered
evidence.
                      APELT V. RYAN                        33

possibility that the alleged newly discovered evidence would
have changed Apelt’s sentence because Apelt exaggerates
what is actually in the documents.

    Arizona also argued in the alternative that Apelt’s claims
of IAC were meritless. Arizona asserted that, under
Strickland, there is a strong presumption that counsel
exercised reasonable professional judgment. Focusing on
counsel’s performance at sentencing, Arizona first noted that
Villarreal asked for funds to go to Germany but did not file a
verified statement as requested by the trial court. The State
argued that Villarreal did all he could, given the lack of any
mitigation in Apelt’s background. It argued that Apelt and
his attorneys “have had more than 5 years to cherry-pick
through [Apelt’s] past and dredge up mitigation, yet have
failed to present anything that would arguably warrant a
sentence less than death.”

     On September 4, 1996, the Arizona Superior Court for
Pinal County denied Apelt’s PCR. It held that most of the
claims were precluded under Arizona’s Rules of Criminal
Procedure either because they had been adjudicated on direct
appeal or because they were not raised at trial, on appeal, or
in Apelt’s first post-conviction petition. This included most
of Apelt’s IAC contentions, except his claim of IAC in his
first post-conviction petition, which the court held was not
cognizable in the proceeding. Two of the court’s final three
paragraphs are particularly relevant. The court held:

       The following claim is meritless because
       Petitioner fails to make a showing that
       counsel acted below objective standards of
       reasonableness in deciding what claims to
       raise on appeal and Petitioner fails to make a
34                     APELT V. RYAN

        showing that the Arizona Supreme Court’s
        decision would have been any different:
        Claim 10 (ineffective assistance of counsel on
        direct appeal).

        ...

        Alternatively, the Court finds that Petitioner’s
        claim of ineffective assistance of counsel at
        trial and sentencing fails to allege colorable
        claims because Petitioner fails to make a
        sufficient preliminary showing that counsel’s
        performance fell below objective standards of
        reasonableness, and fails to make a
        preliminary showing that, in light of the
        allegations, there exists a reasonable
        probability that the result of the trial or
        sentencing hearing would have been different.

Apelt filed a petition for review to the Arizona Supreme
Court, which summarily denied review on April 23, 1998.

     E. Initial Proceedings in the District Court for
        Arizona

    Apelt filed his federal habeas petition in the United States
District Court for the District of Arizona in May 1998.
However, before the district court could resolve the petition,
the Supreme Court decided Atkins, 536 U.S. 304, holding that
the Eighth Amendment prohibits the execution of
                          APELT V. RYAN                             35

intellectually disabled persons.9 Based on the possibility that
Atkins applied to Apelt, the district court stayed Apelt’s
sentencing-related claims to permit him to return to state
court and exhaust his Atkins claim. In the meantime, the
district court considered and denied Apelt’s conviction-
related claims.

    F. The Atkins Proceedings in State Court

    The superior court conducted an evidentiary hearing
regarding the Atkins claims by both Apelt and his brother,
Rudi, in April and May 2007. The superior court applied
A.R.S. § 13-753(K)(3), which, at that time, defined
intellectual disability as “a condition based on a mental
deficit that involves significant subaverage general
intellectual functioning, existing concurrently with significant
impairment in adaptive behavior, where onset of the
foregoing conditions occurred before the defendant reached
the age of eighteen.” The superior court found that Apelt met
none of the criteria:

        based on the three IQ scores and the accepted
        “margin of error for the tests administered,”
        the Court is confronted with the following
        ranges: 88 (German school), 56 to 66 (Ruff),
        32 to 62 (or 50 to 80) (Kury). Based upon the
        lack of evidence to support the marked
        decrease in IQ score, and the experts’
        opinions that the defendant was malingering,


    9
      When Atkins was decided, the term “mental retardation” was used
to describe what is now called “intellectual disability.” See Hall v.
Florida, 134 S. Ct. 1986, 1990 (2014) (“Previous opinions of this Court
have employed the term ‘mental retardation.’”).
36                     APELT V. RYAN

       the Court finds that the defendant has failed to
       establish by even a preponderance of the
       evidence that he suffers from significant
       subaverage intellectual functioning.

    As to the second criterion, adaptive behavior, the court
rejected the assessment of Apelt’s expert, Dr. Ruff, as
focused more on Apelt’s maladaptive behavior rather than his
ability to perform daily tasks. Reviewing Apelt’s adulthood,
the court noted that Apelt “has consistently displayed the
ability to engage in independent and self-directed thinking,
planning and conduct.” The court commented that Apelt had
“worked at various jobs, at least one for an extended time,
served in the military and was honorably discharged, married,
and lived independently.” It further observed that Apelt had
traveled to the United States and Mexico, and had learned
English “sufficiently to communicate and interact
appropriately with others, negotiated purchases of vehicles
and apartment leases, understood foreign currency exchange
rates, and obtained employment.” The court concluded that
Apelt “ha[d] not proved by even a preponderance of the
evidence that throughout his childhood and adult life he has
suffered from significant impairment in adaptive behavior in
meeting the standards of personal independence and social
responsibility expected of a person of his age and cultural
group.”

    Finally, the superior court concluded that Apelt had failed
to prove by even a preponderance of the evidence the onset of
subaverage intelligence prior to reaching the age of eighteen.

    In contrast, the superior court found that Rudi was
intellectually disabled and vacated his death sentence. Rudi’s
IQ was lower than Apelt’s IQ with test results ranging from
                       APELT V. RYAN                         37

49 to 61. The court also found that Rudi exhibited
developmental disabilities from an early age, had been
“unable to attain gainful employment or function on his
own,” had been dismissed from military service after serving
for less than a year, had never lived alone, and depended on
Apelt to take care of him.

   G. The District Court’s September 1, 2015 Order

    Following the superior court’s denial of Apelt’s petition
for post-conviction relief based on Atkins, Apelt was allowed
to amend his federal habeas petition to raise an Atkins claim.
On September 1, 2015, the district court issued its order
granting Apelt relief on one issue and otherwise rejecting his
claims. The district court addressed the issues relevant to this
appeal in the following order.

   1. Procedural Status of Claims

    The district court recognized that a state prisoner must
exhaust his remedies in state court before filing a federal
habeas petition, and that, when a claim is procedurally
defaulted under state law, a federal court usually cannot reach
the merits of the claim. It reasoned that before 2012, a
procedural default would be excused only if the petitioner
demonstrated both cause and prejudice, but that Martinez v.
Ryan, 566 U.S. 1 (2012), set forth a new standard. Citing our
opinion in Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012),
the district court held that now a petitioner may overcome a
procedural default “by demonstrating two things: (1) ‘counsel
in the initial-review collateral proceeding, where the claim
should have been raised, was ineffective under the standards
of Strickland . . .’ and (2) ‘the underlying ineffective-
assistance-of-trial-counsel claim is a substantial one, which
38                        APELT V. RYAN

is to say that the prisoner must demonstrate that the claim has
some merit.’”

     Apelt asserted that his claims for IAC at sentencing
(Claim 12), for failure to challenge his competency to stand
trial (Claim 1-B), and for failure to challenge his competency
at sentencing (Claim 1-D), are excused under Martinez by
Villarreal’s ineffective performance on his first post-
conviction petition. Arizona made a two-fold response. It
argued that these claims were procedurally defaulted, but it
also argued that if the court were to find Martinez applicable,
the court would have to consider that the state court also
denied the claims on their merits. Accordingly, if the court
reached the merits, it should give deference to the state
court’s ruling and not review the IAC claims de novo. The
district court agreed that it had to “accept that the two claims
were resolved by the state court on their merits and review
their rejection under the deferential standard applicable to
Apelt’s other claims.”10

     2. Claim 12 – IAC at Sentencing

    The district court recognized that Apelt’s IAC claim was
governed by AEDPA and thus relief was only available if the
state court’s decision was an unreasonable application of
clearly established Federal law or an unreasonable
determination of the facts. See 28 U.S.C. § 2254(d). The
court acknowledged that relief was precluded as long as
“‘fairminded jurists could disagree’ on the correctness of the
state court’s decision,” Harrington v. Richter, 562 U.S. 86,
101 (2011), and that review was “limited to the record that

     10
        Apelt’s claim of incompetency at sentencing was not presented to
the state court.
                          APELT V. RYAN                               39

was before the state court that adjudicated the claim on its
merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
Accordingly, the record could be expanded only once a
petitioner showed that there was no reasonable basis for the
state court denial of relief.

    As Apelt alleged that Villarreal was ineffective because
he failed to present classic mitigating evidence about his
background and mental health, the district court stated that it
had to determine “whether there is any reasonable argument
that Villareal’s performance at sentencing met the well-
established constitutional minimum for effective assistance
of counsel.”

    The district court recognized that, under AEDPA, the
Strickland standard was “doubly deferential.” Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009). Quoting Richter,
562 U.S. at 105, the district court stated that “the question is
not whether [Villarreal’s] actions were reasonable. The
question is whether there is any reasonable argument that
[Villarreal] satisfied Strickland’s deferential standard.” The
court further held that only the evidence presented to the state
court would be considered.11

    Turning to the substantive law, the district court stated
that, in a capital case, counsel has an obligation to conduct a
thorough investigation of the defendant’s background.


    11
        The district court held that, pursuant to Johnson v. Williams,
568 U.S. 289, 297 n.1 (2013), it could consider evidence presented to the
Arizona Supreme Court, even though that court summarily denied review.
But it further commented that the “evidence presented only to the Arizona
Supreme Court is of little weight,” and, thus, “the result would be the
same even if the Court were to ignore that evidence.”
40                     APELT V. RYAN

Williams v. Taylor, 529 U.S. 362, 396 (2000). The court
commented that although the exact contours of the obligation
will vary, counsel “should obtain readily available
documentary evidence such as school, employment, and
medical records, and obtain information about the defendant’s
character and background” (Robinson v. Schriro, 595 F.3d
1086, 1108–09 (9th Cir. 2010)); should make “inquiries into
social background and evidence of family abuse” (Summerlin
v. Schriro, 427 F.3d 623, 630 (9th Cir. 2005)); and should
review such evidence of mental impairment as might be
found in mental health records (Lambright v. Schriro,
490 F.3d 1103, 1117 (9th Cir. 2007) (per curiam)). The court
further noted that while an investigation typically begins with
the defendant’s interview, it cannot end there unless the
“defendant has given counsel reason to believe that pursuing
certain investigations would be fruitless or even harmful.”
Robinson, 595 F.3d at 1109 (quoting Strickland, 466 U.S. at
691).

     The district court concluded:

        Villareal clearly did not meet these
        responsibilities. Based on the state court
        record, Villareal did not collect records from
        social service agencies, welfare agencies,
        doctors, hospitals, or employers. Villareal did
        not interview potential mitigation witnesses,
        including Apelt’s family members, or consult
        with any mental health experts. Villareal did
        not obtain Apelt’s readily-available mental
        health records from the Pinal County jail
        which described Apelt receiving various
        medications as well as Apelt’s placement on
        suicide watch. And Villareal did not present
                       APELT V. RYAN                        41

       a single witness at the sentencing hearing.
       This was deficient performance.

    The district court explained that, in reaching its
conclusion, it had taken into consideration Villarreal’s
statement that Apelt did not actively participate in the
sentencing phase of trial. It found, however, that Apelt’s lack
of cooperation did not eliminate Villarreal’s duty to
investigate. See Hamilton v. Ayers, 583 F.3d 1100, 1118 (9th
Cir. 2009); and Landrigan v. Schriro, 441 F.3d 638 (9th Cir.
2006) (en banc), rev’d, 550 U.S. 465 (2007).

    The court acknowledged that Villarreal’s investigation
was hampered by the need to obtain funding to travel to
Germany, but concluded that his performance was
nevertheless legally deficient. He failed to provide additional
information to the trial court, as invited by the court, and
offered no explanation for his failure. The court further noted
that “[i]t is telling that PCR counsel obtained voluminous
material regarding mitigation without traveling to Germany.”

    The district court also rejected Arizona’s suggestion that
Villarreal’s conduct may have been strategic. It cited
Wiggins v. Smith, 539 U.S. 510, 527 (2003), and noted that,
because Villarreal “intended to seek information about
Apelt’s mental health, including his hospitalization in
Germany, . . . he knew it was material evidence and,
inexplicably, failed to pursue it.” The court added that
Villarreal “failed to present evidence of Apelt’s childhood
poverty and abuse—humanizing information that would have
been within the parameters of good character evidence,” and
that Villarreal admitted that there was “no strategic basis for
his failure to investigate or present more relevant mitigating
42                     APELT V. RYAN

evidence.” The district court concluded that “[n]o fairminded
jurist could conclude Villareal’s performance was sufficient.”

    The court also found that the deficient performance was
prejudicial: there was a reasonable probability that the result
of the proceeding would have been different absent
Villarreal’s deficient performance. See Strickland, 466 U.S.
at 694. Villarreal’s “case in mitigation contained no evidence
of Apelt’s alleged poverty, no evidence of childhood physical
abuse, no evidence of repeated childhood sexual abuse, and
no meaningful evidence of mental health problems.” Indeed,
the prosecutor stressed that Apelt had a normal childhood,
and Villarreal submitted a statement from Apelt’s mother that
he had had a normal childhood. The court concluded that
“the sentencing court was presented with a picture of Apelt’s
background that bore ‘no relation’ to the picture presented by
PCR counsel with apparently reliable evidence,” and the
“magnitude of the difference between the mitigating evidence
that was presented at sentencing and the evidence that could
have been presented through competent investigation is
sufficient to undermine confidence in the outcome.”

    Arizona filed a motion for reconsideration, arguing that
(1) the court committed manifest error by applying Martinez
to excuse the procedural default of Claim 12, and (2) the
court “erred in its assessment of Strickland’s prejudice prong
by failing to reweigh the totality of the mitigating evidence
against the aggravating factors.” The district court rejected
the second argument, holding that it had taken “into account
the aggravating factors as well as the totality of the mitigating
evidence.” The court explained its rejection of the first
argument as follows:
                       APELT V. RYAN                          43

        the Court did not apply Martinez to excuse the
        default but instead reviewed the state court’s
        alternative merits ruling. The Court noted
        Martinez, but only in the context of
        reassessing its earlier determination that
        Claim 12 was procedurally defaulted and
        barred from federal review. The Court
        concluded, citing Clabourne v. Ryan,
        745 F.3d 362, 382 (9th Cir. 2014), that the
        state court’s alternative merits ruling was
        subject to review under § 2254(d).

In a footnote, the district court further noted that in Martinez,
“the Arizona Attorney General’s Office argued on remand
that the presence of an alternative merits ruling meant that
alternative ruling had to be reviewed under a deferential
standard.”

    3. Claims 1-B & 1-D (Mental Competence at Trial and
       Sentencing)

    Apelt asserted that he was “severely mentally ill and
grossly overmedicated” when he was tried and that Villarreal
was ineffective in failing to challenge his competence. The
district court rejected this contention, noting that “co-counsel
traveled to Germany, in part to investigate Apelt’s placement
in a psychological institution” and did not find any evidence
to support a motion to determine competency. Moreover,
“the record does not support a finding that Apelt lacked a
rational and factual understanding of the proceedings or the
ability to consult with counsel.” Apelt was actively involved
in his defense and the trial proceedings. In addition, his trial
testimony revealed no traces of incompetence.
44                     APELT V. RYAN

    Furthermore, the district court determined that the fact
that Apelt was on medication did not mean that he was unable
to consult with his lawyer and understand the proceedings.
See United States v. Shan Wei Yu, 484 F.3d 979, 985 (8th Cir.
2007). Also, the facts that he had been placed on suicide
watch and had a history of mental health problems did not
show that he was incompetent to stand trial. The court stated:
“Apelt has failed to identify an instance in which he behaved
irrationally, appeared not to understand the proceedings, or
did not communicate effectively with Villarreal.” The district
court concluded that Apelt had not met his burden of showing
IAC in Villarreal’s failure to doubt his competency.

     4. Claim 11 (Denial of Funds to Travel to Germany)

    The district court reviewed the proceedings in the state
courts and concluded that the denial of Villarreal’s request for
funds to travel to Germany was not unreasonable. Despite
being given an opportunity to supplement his request,
Villarreal never offered any specific information to support
his request. Thus, he did not make a “threshold showing”
that the additional funds would be helpful. Williams v.
Stewart, 441 F.3d 1030, 1054 (9th Cir. 2006) (per curiam).
The court held that “[b]ecause Villareal offered only
‘undeveloped assertions’ in support of his request for funds
to travel to Germany,” the Arizona Supreme Court did not
unreasonably apply Caldwell v. Mississippi, 472 U.S. 320,
323 n.1 (1985), in denying this claim.

     5. Claim 17 (failure to consider certain mitigating
        evidence)

   Apelt argued that the Arizona Supreme Court erred by
excluding from its consideration certain mitigating evidence
                             APELT V. RYAN                            45

in violation of Tennard v. Dretke, 542 U.S. 274 (2004). The
district court rejected this claim, finding that both the Arizona
trial court and the Arizona Supreme Court considered all of
Apelt’s proffered mitigating factors.12

    6. Claim 26 (intellectually disabled under Atkins)

    The district court first noted that under Arizona law Apelt
bore the burden of proving intellectual disability by clear and
convincing evidence (A.R.S. § 13-753(G)), and that under
AEDPA, Apelt had to show that the state court’s decision was
an unreasonable application of Atkins or was based on an
unreasonable determination of the facts. Apelt focused on the
state court’s analysis of the evidence presented in the Atkins
proceedings, objecting to the determinations that he had
failed to show he had a subaverage intellect and had not
shown significant deficits in adaptive behavior.

   Although Apelt’s experts, Dr. Kury and Dr. Ruff,
concluded that Apelt suffered from “Mild Mental


    12
         The district court commented:

           Apelt focuses on the court’s statement that Apelt
           “failed to advance any credible argument as to why
           some factors should be considered mitigating at all.”
           Apelt, 861 P.2d at 653–54. But that statement did not
           refer to the entirety of Apelt’s mitigation evidence but
           rather to Apelt’s argument that certain circumstances—
           namely his cooperation with the presentence
           investigation, the plea bargain offered to Rudi, and
           Dorn’s immunity—were in fact mitigating at all. Id.
           Again, there is no constitutional requirement that the
           sentencer assign proffered mitigating evidence any
           particular weight. See Harris [v. Alabama, 513 U.S.
           504, 512 (1995)].
46                     APELT V. RYAN

Retardation,” and was intellectually disabled, the district
court noted that Apelt had been tested as a child and found to
have an overall IQ of 88. While the experts were skeptical
about this test result, the district court noted that “the only
specific challenge they offered was that Apelt would not have
been placed in a special education school if his IQ had been
that high.” The court found this “unpersuasive as a criticism
of the test because no one contests that Apelt’s IQ was
measured at 88 and, notwithstanding that result, he was in
fact placed in a special education school.”

    Perhaps more important to the district court was the
evidence of malingering: that Apelt sought to appear on the
tests to be less intelligent than he is. Kury and Ruff
administered eight separate IQ tests of Apelt and averaged
them to arrive at a full-scale IQ score of 65, but the district
court shared the state court’s concern that these scores were
the result of Apelt’s malingering. The district court noted
that Kury had detected “slight malingering” and that Ruff
acknowledged it was possible Apelt malingered on some
tests. Although Kury and Ruff doubted that the indications
of malingering were strong enough to change their overall
evaluations, they could not exclude the possibility that Apelt
malingered or that all the testing data was reliable. The
district court concluded that the state court had not clearly
erred “by taking into account evidence of malingering in
considering whether Apelt met his burden of establishing
subaverage intelligence.”

    Although Apelt’s experts opined that he suffered from
significant deficits in adaptive behavior, particularly
social/interpersonal skills, financial responsibility, functional
academics, and work, Dr. Moran, Arizona’s expert, thought
“Apelt’s conduct was actually indicative of anti-social
                       APELT V. RYAN                         47

personality disorder.” The district court found that the state
court was entitled to assess the relative credibility of the
experts and that its decision to credit one qualified expert
over the others was not enough to merit relief. The district
court concluded that the state court did not clearly err when
it found Apelt had failed to prove he met the adaptive
behavior prong of intellectual disability and that the state
court’s ruling on the Atkins issue was not based on an
unreasonable determination of facts.

   7. Claim 27 (standard for proving intellectual disability)

    Finally, the district court rejected Apelt’s argument that
Arizona had violated his right to due process and freedom
from cruel and unusual punishment set forth in Cooper v.
Oklahoma, 517 U.S. 348 (1996), by requiring that he prove
his intellectual disability. It noted that the Supreme Court in
Atkins expressly permitted states to establish their own
procedures for determining intellectual disability, and, thus,
“there is no clearly established federal law setting a burden of
proof in Atkins cases or extending Cooper to claims of
intellectual disability.”

    The September 1, 2015 order concluded with the issuance
of a certificate of appealability on two issues: denial of funds
to travel to Germany, and the Atkins claim. The court also
asked the parties to file supplemental briefs on whether an
evidentiary hearing was necessary on IAC at sentencing.

   H. The District Court’s December 1, 2015 Order

   No party thought that an evidentiary hearing was
necessary, but Arizona filed a motion for reconsideration,
which the district court denied. In doing so, the court
48                     APELT V. RYAN

expanded on its reasons for granting relief. The court noted
that Villarreal’s initial presentation of mitigation omitted
evidence directly contradicting the assertion that Apelt’s
childhood was normal. However, PCR counsel presented
evidence “of extreme poverty, physical abuse, developmental
delays, and mental health problems,” and these allegations of
prejudice were strengthened by the record developed in the
Claim 12 proceedings. The district court noted that: (1)
Apelt’s father was cruel to his children and beat them; (2) the
father sexually abused his children; (3) Apelt suffered
extreme stress as a result of his father’s abuse; (4) Apelt’s
childhood development was delayed and he had difficulty
maintaining his hygiene and dressing appropriately; (5) Apelt
attended a special school for learning disabled and mentally
retarded children and left school when he reached ninth
grade; (6) he had difficultly maintaining employment, even
in unskilled labor; (7) Apelt was discharged from compulsory
military service for “mental inadequacy”; and (8) Apelt was
sent to a psychiatric institution after a suicide attempt. The
district court reasoned:

       None of this evidence was presented at
       sentencing. As a result, the court was given a
       picture of Apelt’s background that bore “no
       relation” to the picture that could have been
       presented if sentencing counsel had performed
       competently. Rompilla v. Beard, 545 U.S.
       374, 392–93 (2005). In circumstances like
       this, where such “classic” mitigation has been
       omitted, courts have consistently found
       ineffective assistance of counsel. Hamilton v.
       Ayers, 583 F.3d 1100, 1131 (9th Cir. 2009).
                       APELT V. RYAN                         49

    The district court also rejected Arizona’s assertion that
the three aggravating factors outweighed the totality of the
mitigating evidence. It cited Correll v. Ryan, 539 F.3d 938,
951–52 (9th Cir. 2008), as holding that to establish prejudice
under Strickland it is not necessary to show that the newly
discovered mitigation evidence “would necessarily overcome
the aggravating circumstances.” It noted that, although three
aggravating factors were found, “under Arizona law the
pecuniary gain and procuring factors are not both entitled to
‘full weight.’” In addition, the court observed that the Ninth
Circuit in Stankewitz v. Woodford, 365 F.3d 706, 717–18 (9th
Cir. 2004), recognized that the Supreme Court had made clear
that the failure to present mitigating evidence could be
prejudicial even when the defendant’s actions were egregious.
The order concluded with the reiteration that “Villareal’s
representation at sentencing was inadequate and prejudiced
Apelt,” and that, had he “performed a competent mitigation
investigation, there is a reasonable probability that Apelt
would not have been sentenced to death.”

                              II.

    The district court’s grant or denial of habeas relief is
reviewed de novo. Moses v. Payne, 555 F.3d 742, 750 (9th
Cir. 2009).

    A. The state court’s finding of procedural default
       must be considered, but does not preclude federal
       judicial review.

   As a threshold issue, Arizona asserts that the district court
was barred from reaching the merits of Apelt’s IAC claims
because these claims were procedurally barred under Arizona
law, and Apelt cannot excuse his default under Martinez, 566
50                     APELT V. RYAN

U.S. 1. It appears that the district court may have
misinterpreted our decision in Clabourne, 745 F.3d 362,
overruled on other grounds by McKinney v. Ryan, 813 F.3d
798, 818 (9th Cir. 2015) (en banc). Nonetheless, reviewing
the district court’s comprehensive consideration of Apelt’s
petition, we conclude that the district court implicitly
determined that Apelt met the cause and prejudice standard
set forth in Coleman v. Thompson, 501 U.S. 722 (1991), and
thus could address the merits of Apelt’s IAC claims.

     1. We review the state court’s procedural default ruling
        on its merits.

    The district court’s treatment of Martinez is not a model
of clarity. Leading up to its consideration of Apelt’s claims
on their merits, the district court wrote:

        The Ninth Circuit [in Clabourne] held that
        even assuming Martinez could excuse the
        procedural issue, the alternative merits ruling
        must still receive the normal deference
        applicable to state court rulings. . . .

        Given the holding in Clabourne, the fact the
        state court found Claims 1-B and 12
        procedurally improper does not mean that the
        Court can ignore the alternative merits ruling.
        Instead, the Court must accept that the two
        claims were resolved by the state court on
        their merits and review their rejection under
        the deferential standard applicable to Apelt’s
        other claims.
                           APELT V. RYAN                              51

The district court then addressed Apelt’s claims under the
standard set forth in AEDPA, 28 U.S.C. § 2254(d). However,
it did not explicitly address Arizona’s assertion that Apelt’s
IAC claim was procedurally barred.13

    Nonetheless, the clear import of the district court’s
language is that it was abiding by our direction in Clabourne
to review the state court’s merits decision under AEDPA’s
deferential standard. Following Martinez, if a state court had
determined that a constitutional issue was procedurally
defaulted, and the federal habeas court subsequently
determined that the procedural default was excused, then the
federal court would apply a de novo standard of review as
there was no state court determination on the merits to which
the federal court could defer. Our opinion in Clabourne
clarified that when a state court “double-barrels” its
decision—holding that a claim was procedurally barred and
denying the claim on its merits—both its procedural default
ruling and its merits ruling are entitled to deferential review
by federal courts, as intended by AEDPA.

   Accordingly, the district court’s orders should not be
construed as holding that, because the state court reached the
merits of Apelt’s claim, the federal court can ignore the
procedural default. In Zapata v. Vasquez, 788 F.3d 1106,
1111 (9th Cir. 2015), we reiterated that, where a state court
expressly invokes a procedural bar, the claim is defaulted,
even though the state court goes on to discuss the merits of


    13
      In its December 1, 2015 order, the district court denied that it had
overlooked Arizona’s claim of procedural default, but had rejected it
because Arizona had “not clearly explained how this Court could have
committed error by following the sequence explicitly set forth by the
Ninth Circuit in Clabourne.”
52                         APELT V. RYAN

the claim. See also Harris v. Reed, 489 U.S. 255, 264 n.10
(1989).

    Here, the state trial court clearly held that the IAC claims
were precluded under Arizona law before determining that
Apelt had failed to show that counsel’s performance fell
below objective standards of reasonableness and failed to
show that there was a reasonable probability that the result of
sentencing would have been different. Accordingly, we first
consider whether Apelt’s IAC claim is procedurally barred.

    Martinez is properly understood as building on Coleman.
Coleman set forth the requirement that, in order to obtain
federal habeas relief, a state prisoner must establish cause to
excuse a procedural default in state court, as well as
prejudice. 501 U.S. at 730–31. Martinez embraced the
causation requirement, but held that a prisoner could establish
causation by showing two things: (1) where he had counsel in
the initial collateral review proceeding, that the attorney was
ineffective under the standards of Strickland; and (2) “that the
underlying ineffective-assistance-of-trial-counsel claim is a
substantial one, which is to say that the prisoner must
demonstrate that the claim has some merit.” Martinez,
566 U.S. at 14. Indeed, the Supreme Court explained that,
“[w]hen faced with the question whether there is cause for an
apparent default, a State may answer that the ineffective-
assistance-of-trial-counsel claim is insubstantial, . . . or that
the attorney in the initial-review collateral proceeding did not
perform below constitutional standards.” Id. at 15–16.14


     14
       In Davila v. Davis, 137 S. Ct. 2058 (2017), the Supreme Court
reaffirmed that Martinez is best understood as qualifying Coleman. Id. at
2065. Davila sought to extend Martinez to a claim of ineffective
assistance of appellate counsel on direct appeal where his “postconviction
                            APELT V. RYAN                               53

    Under Coleman and Martinez, the district court’s
determinations—both that it could reach the merits of Apelt’s
IAC claims and its evaluation of the merits of Apelt’s IAC
claims—turn on three inquiries: (1) whether Villarreal, as
Apelt’s counsel on his first PCR, was ineffective under
Strickland; (2) whether Villarreal’s performance as counsel
at sentencing was ineffective under Strickland; and (3)
whether Apelt was prejudiced by Villarreal’s performances.

    2. Arizona’s contentions that Martinez and Coleman are
       inapplicable are not persuasive.

     Arizona advances two arguments for holding that the
district court could not reach the merits of Apelt’s IAC
claims. Arizona first argues that the purpose behind the
exception recognized in Coleman and Martinez is a concern
that no court will consider a state defendant’s constitutional
claim of trial counsel IAC. It thus reasons that, because the
trial court reached the merits of Apelt’s IAC claims, there is
no need for the exception because one court did consider
Apelt’s contentions on their merits.

   Although Arizona cites selected language from Martinez,
we do not find its argument persuasive. Its proposed “one


counsel provides ineffective assistance by failing to raise that claim.” Id.
Justice Thomas, writing for the majority, stressed the differences between
trial error, where the defendant has a constitutional right to counsel, and
appellate error, where there is no right to counsel. Id. at 2067. Here,
Apelt’s claim to a Martinez exception is based on ineffectiveness at the
trial stage, and thus is not directly affected by Davila. Davila does not
appear to change the requirement that, in order to successfully invoke the
exception to procedural default, the defendant must show that his post-
conviction counsel, in failing to address trial counsel’s ineffectiveness,
was himself ineffective under the standards of Strickland.
54                     APELT V. RYAN

and done” approach, rather than narrowing federal habeas
review, would bar federal review of constitutional issues. It
contends that the fact that one state court had addressed the
constitutional issues on the merits, blocks federal habeas
review, regardless of the reasonableness of the state court’s
decision. However, even if the fact that one state court had
considered the constitutional claim were sufficient to
distinguish Martinez, a petitioner, such as Apelt, would still
be eligible to meet the cause and prejudice standard set forth
in Coleman. There, the Court stated:

        In all cases in which a state prisoner has
        defaulted his federal claims in state court
        pursuant to an independent and adequate state
        procedural rule, federal habeas review of the
        claims is barred unless the prisoner can
        demonstrate cause for the default and actual
        prejudice as a result of the alleged violation of
        federal law, or demonstrate that failure to
        consider the claims will result in a
        fundamental miscarriage of justice.

501 U.S. at 750. Thus, even if Apelt’s proceedings do not
come within the coverage of Martinez, the procedural default
might still be excused under Coleman.

    Second, Arizona asserts that because the state court
denied Apelt’s PCR on the merits, Apelt cannot show that the
failure to raise IAC claims in the first post-conviction petition
was prejudicial. In other words, because the state court
rejected the IAC claims on their merits in the PCR, it follows
that there was no prejudice from the failure to raise the claims
in the first post-conviction petition, and, thus, Apelt is not
entitled to federal habeas review under Martinez.
                       APELT V. RYAN                        55

     Again, Arizona’s argument seeks to place Apelt’s
constitutional claim beyond even deferential review by a
federal court. Certainly, the state court’s decision on the PCR
is relevant to a determination of whether the failure to raise
IAC claims in the first post-conviction petition was
prejudicial. But that determination is not in itself a complete
bar to federal habeas review—particularly where, as here, the
state court’s merits ruling on the PCR is a conclusory
alternate ruling.

    In sum, while the state court’s alternate ruling on the
merits of the IAC claims does not allow a federal court to
ignore the procedural default ruling, it also does not bar a
federal court from applying Martinez and Coleman.

   3. Villarreal was ineffective as counsel on the post-
      conviction petition.

    In support of his assertion that Villarreal was ineffective
as post-conviction counsel, Apelt asserts: (1) Villarreal was
conflicted from raising his own ineffectiveness at sentencing;
(2) Villarreal squandered Apelt’s opportunity for a thorough,
well-investigated post-conviction petition when he
prematurely filed a post-conviction petition; (3) Villarreal
failed to comply with well-established professional norms
that in 1989 required that counsel, in a capital case, be
familiar with all state and federal post-judgment options,
discuss them with his client, and conduct thorough
investigations into all meritorious issues, particularly claims
56                          APELT V. RYAN

of IAC; and (4) the failure to investigate was not, and could
not have been, the product of strategy.15

    Arizona responds that Apelt’s conflict-of-interest
argument is foreclosed by Ortiz v. Stewart, 149 F.3d 923 (9th
Cir. 1998), and Bonin v. Calderon, 77 F.3d 1155 (9th Cir.
1996). However, these cases were decided before Martinez
and were premised on the lack of a constitutional right to
counsel in a habeas proceeding.16 At that time, a post-
conviction lawyer’s negligence did not qualify as cause
because the lawyer was considered the prisoner’s agent. See
Lopez v. Ryan, 678 F.3d 1131, 1133 (9th Cir. 2012) (noting
that Coleman “held that a PCR lawyer’s negligence does not
qualify as cause, because the lawyer is the prisoner’s agent”).
Martinez, however, recognized that “inadequate assistance of
counsel at initial-review collateral proceedings may establish
cause for a prisoner’s procedural default of a claim of
ineffective assistance of counsel.” Lopez, 678 F.3d at 1133
(quoting Martinez, 566 U.S. at 9). Accordingly, Martinez
overruled the premise of the rulings in Stewart and Bonin,
giving life to conflict-of-interest assertions.


     15
        The district court, although finding that Villarreal had been
ineffective, did not separately consider his performance as post-conviction
counsel.
     16
        In Stewart, we held that the argument that an attorney “was
prevented from raising his own ineffectiveness due to a clear conflict of
interest” had been rejected in Nevius v. Sumner, 105 F.3d 453, 460 (9th
Cir. 1996). Stewart, 149 F.3d at 933. In Nevius, we commented that the
conflict of interest argument was “not without force,” but was foreclosed
because Bonin, 77 F.3d at 1159, had held that “[t]here was no
constitutional right of counsel in such habeas proceedings even if they
presented the first opportunity to raise the ineffectiveness claim.” Nevius,
105 F.3d at 460.
                        APELT V. RYAN                          57

   We glean guidance from our opinion in United States v.
Del Muro, 87 F.3d 1078 (9th Cir. 2008). There, we
commented:

        When Del Muro’s allegedly incompetent trial
        attorney was compelled to produce new
        evidence and examine witnesses to prove his
        services to the defendant were ineffective, he
        was burdened with a strong disincentive to
        engage in vigorous argument and
        examination, or to communicate candidly with
        his client. The conflict was not only actual,
        but likely to affect counsel’s performance.

87 F.3d at 1080.

    A similar situation may exist where a defendant is
represented on appeal by his trial attorney. The attorney may
be torn between his duty to represent his client and a desire to
defend the reasonableness of his performance at trial. Here,
it is possible that Villarreal’s prompt filing of a post-
conviction petition, based on the specialist’s testimony in
Rudi’s trial, was partially fueled by a desire to avoid litigating
his performance at sentencing.

    Arizona also argues that the court should defer to
Villarreal’s decision to file a post-conviction petition while
the direct appeal was pending and, that, even if doing so was
“unusual,” this does not necessarily make it ineffective.
Although other counsel could have chosen other routes,
Arizona maintains that Villarreal’s choice fell well within the
wide range of professional competence.
58                     APELT V. RYAN

    On the record in this case, it is very difficult to justify
Villarreal’s decision. His client had been found guilty of a
horrendous murder and given the death penalty. Rather than
take the time to investigate the case, as required by the
applicable professional norms, he forfeited all other
arguments that could be raised in a post-conviction petition,
including IAC, to argue that Dr. DiMaio’s testimony, in
Rudi’s trial, that Cindy’s murderer was right handed,
exonerated Apelt, who is left handed. This was not
objectively reasonable. There was overwhelming evidence
that Apelt and Rudi committed the crime together, regardless
of which one actually killed Cindy. Moreover, even if the
argument had some potential for reducing Apelt’s sentence,
there was no need or reason to rush filing the post-conviction
petition before all the other possible issues had been
researched. In sum, the record supports a determination that
Apelt’s challenge to Villarreal’s performance as post-
conviction counsel is “substantial.” Martinez, 566 U.S. at 14;
see also Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(holding that for a certificate of appealability to issue, a
petitioner must show that reasonable jurists could debate
whether the issue should have been resolved in a different
manner or that the claim was “adequate to deserve
encouragement”) (citation omitted).

     B. Villarreal was ineffective at sentencing.

    Having determined that Villareal’s performance on
Apelt’s first post-conviction petition was sufficiently
deficient as to provide cause for Apelt’s default, see
Coleman, 501 U.S. at 750, we consider whether Villarreal’s
performance as counsel at sentencing was ineffective under
Strickland, 466 U.S. 668.
                       APELT V. RYAN                        59

    Arizona objects to the district court’s determination of
IAC asserting that the state courts’ rejection of these claims
were neither contrary to, nor an unreasonable application of,
clearly established federal law. In particular, Arizona argues
that: (a) the alleged failure to adduce mitigating evidence is
the same ilk as the errors in Strickland, Darden v.
Wainwright, 477 U.S. 168 (1986), and Burger v. Kenmp,
483 U.S. 776 (1987); (b) clearly established federal law refers
only to Supreme Court holdings; and (c) the district court did
not explain why the state court’s decision was contrary to
Strickland.

    Some of Arizona’s arguments, however, are slightly off
point because the essence of the district court’s determination
was factual. Habeas relief was granted not for a failure to
follow clearly established federal law, 28 U.S.C.
§ 2254(d)(1), but because, applying clearly established
federal law, the determination that Villarreal was not
ineffective under the standard of Strickland was “an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(2).

    Nonetheless, Darden and Burger inform our decision in
this matter. In Darden, IAC was only one of Darden’s
claims. He argued that his trial attorneys “did not delve
sufficiently into his background, and as a result were
unprepared to present mitigating evidence at the sentencing
hearing.” 477 U.S. at 184. In rejecting Darden’s claim, the
Supreme Court noted that defense counsel had “engaged in
extensive preparation prior to trial, in a manner that included
preparation for sentencing.” Id. Counsel expended hundreds
of hours on Darden’s behalf, including “investigating
petitioner’s alibi, and driving petitioner around the scene of
60                          APELT V. RYAN

events to establish each point of his story,” and “obtain[ing]
a psychiatric report on petitioner, with an eye toward using it
in mitigation during sentencing.” Id. at 185.

    The Court further noted that there were several reasons
why counsel could have reasonably chosen to rely on a
simple plea for mercy. Id. at 186. “Any attempt to portray
petitioner as a nonviolent man would have opened the door
for the State to rebut with evidence of petitioner’s prior
convictions.” Id. “In addition, if defense counsel had
attempted to offer testimony that petitioner was incapable of
committing the crimes at issue here, the State could have
responded with a psychiatric report that indicated that
petitioner ‘very well could have committed the crime.’” Id.
“[I]f defense counsel had attempted to put on evidence that
petitioner was a family man, they would have been faced with
his admission at trial that, although still married, he was
spending the weekend furlough with a girlfriend.” Id.
Accordingly, the Court concluded that counsel’s decision,
after consulting with Darden, not to use the psychiatric
testimony was reasonable.

    In Burger, IAC was a secondary issue.17 Burger’s
attorney had “offered no mitigating evidence at all.”
483 U.S. at 788. However, the Supreme Court reviewed the
counsel’s extensive investigation that led to the decision not
to present mitigating evidence. Id. at 789–91. The Court also
noted that counsel had considered calling Burger’s mother
and a lawyer who had acted as Burger’s big brother, but


     17
       The first issue was whether “the appointment of two partners to
represent coindictees in their respective trials creates a possible conflict
of interest that could prejudice either or both clients.” Burger, 483 U.S.
at 783.
                      APELT V. RYAN                        61

concluded that “it was surely not unreasonable for [counsel]
to have concluded that cross-examination might well have
revealed matters of historical fact that would have harmed his
client’s chances for a life sentence.” Id. at 792. It further
commented that “petitioner’s present counsel—even with the
benefit of hindsight—has submitted no affidavit from that
lawyer establishing that he would have offered substantial
mitigating evidence if he had testified.” Id. at 793. In sum,
the Court, although troubled by counsel’s actions, concluded
that Burger had not shown that his actions “were outside the
wide range of professionally competent assistance.” Id. at
795 (citation omitted).

    Counsels’ efforts in Darden and Burger stand in contrast
to Villarreal’s minimal efforts to investigate Apelt’s
background. It is particularly noteworthy that defense
counsel in those cases procured psychiatric reports on the
defendants even though they ultimately decided not to present
the reports at sentencing.

    Arizona also argues that the state court properly rejected
Villarreal’s request for funds to travel to Germany and that
Villarreal adequately investigated mitigation evidence.
Arizona notes that Villarreal’s co-counsel traveled to
Germany in hope of obtaining evidence of Apelt’s difficult
childhood, and that Villarreal contacted the German consulate
and Amnesty International.

    These arguments are not persuasive as they ignore the
troubling information that Villarreal had and misstate some
of the facts. The very fact that Villarreal’s co-counsel
traveled to Germany and sought information as to Apelt’s
“difficult childhood” suggests that Villarreal recognized the
potential importance of such information. Moreover, co-
62                        APELT V. RYAN

counsel’s failure to procure the background information was
not because it didn’t exist, but because Apelt’s family
members didn’t speak English. Also, counsel knew, or
should have known, that Apelt, while in jail, was prescribed
a number of medications, was placed on suicide watch for
five days, and was admitted to the Psychiatric Unit on at least
one occasion. This information appears to be the type that
would prompt counsel to obtain a psychiatric report on the
defendant, as counsel did in Darden and Burger.
Furthermore, the record refutes Arizona’s suggestions that
Villarreal utilized Amnesty International and that the German
consulate was of assistance.

    Moreover, Villarreal stated that his failure to investigate
mitigation evidence was not a strategic choice, and that Apelt
did not take an active part in the development of mitigating
evidence. Indeed, it is difficult to imagine any rational basis
for not investigating Apelt’s mental health and childhood.
Apelt was facing the death penalty for committing a
horrendous, cold-blooded murder. The documents that
counsel had received the night before sentencing that
allegedly attested to Apelt’s good character were unlikely to
have any impact on the judge.18 Furthermore, these
documents were more than offset by the testimony of
Detective Davis, who spoke German, had traveled to
Germany, and testified to Apelt’s criminal activity and poor
character in Germany. The record shows that Villarreal was
unprepared to respond to Detective Davis’s testimony.


     18
       Apelt was sentenced by a judge under the Arizona system that the
Supreme Court later declared unconstitutional. See Ring v. Arizona,
536 U.S. 584, 609 (2002). However, the Supreme Court subsequently
held that Ring does not apply retroactively. See Schriro v. Summerlin,
542 U.S. 348, 358 (2004).
                       APELT V. RYAN                        63

    We do not have the benefit of the state courts’ reasons for
rejecting Apelt’s IAC claim on his PCR. The state trial court
offered only the conclusive statement that Apelt had failed
“to make a sufficient preliminary showing that counsel’s
performance fell below objective standards of
reasonableness.” The Arizona Supreme Court summarily
denied Apelt’s petition for review.

    Nonetheless, as required by Richter, 562 U.S. at 102, we
consider “what arguments or theories supported or, as here,
could have supported, the state court’s decision,” and “ask
whether it is possible fairminded jurists could disagree that
those arguments or theories are inconsistent with the holding
in a prior decision of this Court.”

     Here, we determine that this record compels a finding that
Villarreal’s performance at the capital hearing sentence “fell
below an objective standard of reasonableness,” even in 1989.
Id. at 104 (quoting Strickland, 466 U.S. at 688). There can be
no doubt that counsel was required to review a defendant’s
background in preparation for sentencing. Indeed, the record
shows that Villarreal knew this but failed to take the steps
necessary to do so. After all, Apelt had spent his whole life
in Germany until he came to the United States some six
months before committing the murder. The trial court’s
reluctance to fund Villarreal’s requested travel to Germany
simply does not excuse Villarreal’s failure to make the
supplemental showing requested by the trial court, nor does
it excuse his failure to consider other means of investigating
Apelt’s mental health and background. He did not seek a
psychiatric evaluation of Apelt despite the nature of the
crime, Apelt’s treatment while incarcerated before trial, and
other indicia of possible psychiatric issues. Accordingly, we
64                      APELT V. RYAN

agree with the district court that “[n]o fairminded jurist could
conclude Villareal’s performance was sufficient.”

     C. The state courts’ determination that counsel’s
        inadequate representation of Apelt at sentencing
        was not prejudicial is not unreasonable.

    While we agree with the district court that Villarreal’s
performance at sentencing was inadequate, we cannot find, as
required by the Supreme Court, that the state courts’ finding
of no prejudice was “objectively unreasonable.” Woodford
v. Visciotti, 537 U.S. 19, 27 (2002).

     The Supreme Court stated in Richter:

        With respect to prejudice, a challenger must
        demonstrate “a reasonable probability that,
        but for counsel’s unprofessional errors, the
        result of the proceeding would have been
        different. A reasonable probability is a
        probability sufficient to undermine confidence
        in the outcome.” [Strickland, 466 U.S.] at
        694. It is not enough “to show that the errors
        had some conceivable effect on the outcome
        of the proceeding.” Id., at 693. Counsel’s
        errors must be “so serious as to deprive the
        defendant of a fair trial, a trial whose result is
        reliable.” Id., at 687.

562 U.S. at 104 (parallel cites omitted). The Court explained:

        In assessing prejudice under Strickland, the
        question is not whether a court can be certain
        counsel’s performance had no effect on the
                       APELT V. RYAN                          65

        outcome or whether it is possible a reasonable
        doubt might have been established if counsel
        acted differently. See Wong v. Belmontes,
        558 U.S. 15, 27 (2009) (per curiam);
        Strickland, 466 U.S. at 693.           Instead,
        Strickland asks whether it is “reasonably
        likely” the result would have been different.
        Id., at 696. This does not require a showing
        that counsel’s actions “more likely than not
        altered the outcome,” but the difference
        between Strickland’s prejudice standard and a
        more-probable-than-not standard is slight and
        matters “only in the rarest case.” Id., at 693,
        697. The likelihood of a different result must
        be substantial, not just conceivable. Id., at
        693.

562 U.S. at 111–12 (parallel cites omitted).

    Critically, in a federal habeas petition where the petitioner
is challenging counsel’s performance, the question “‘is not
whether a federal court believes the state court’s
determination’ under the Strickland standard ‘was incorrect
but whether that determination was unreasonable—a
substantially higher threshold.’” Knowles v. Mirzayance,
556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan,
550 U.S. 465, 473 (2007)). Thus, our review of the state
court decision is “doubly deferential.” Pinholster, 563 U.S.
at 190 (quoting Knowles, 556 U.S. at 123). Accordingly,
“[w]hen § 2254(d) applies, the question is not whether
counsel’s actions were reasonable. The question is whether
there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Richter, 562 U.S. at 105.
66                     APELT V. RYAN

    In addition, the Supreme Court directs that even “[w]here
a state court’s decision is unaccompanied by an explanation,
the habeas petitioner’s burden still must be met by showing
there was no reasonable basis for the state court to deny
relief.” Id. at 98.

    In Andrews v. Davis, 866 F.3d 994 (9th Cir. 2017), we
read Supreme Court precedent as establishing three steps for
applying Strickland to determine whether counsel’s deficient
performance prejudiced the defendant at the penalty phase of
a state capital case. Id. at 1020. First, the court evaluates and
weighs the totality of the available mitigating evidence;
second, it evaluates and weighs “the aggravating evidence
and any rebuttal evidence that could have been adduced by
the government had the mitigating evidence been
introduced”; and third, it reweighs “the evidence in
aggravation against the totality of available mitigating
evidence . . . to determine ‘whether there is a reasonable
probability that, absent the errors, the sentencer . . . would
have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.”               Id. (quoting
Strickland, 466 U.S. at 695). In Andrews, we reversed the
district court’s grant of a writ because we found that the
California Supreme Court’s determination that the denial of
effective counsel was not prejudicial was not an unreasonable
application of Strickland. Id. at 1033. We reach a similar
conclusion in this case.

     Apelt clears the first hurdle as the proffered mitigating
evidence paints a very different picture of Apelt’s background
and character than was presented at sentencing. Apelt
probably clears the second hurdle, mostly because there is
little evidence in the record as to what rebuttal evidence
Arizona might have produced in response to the mitigating
                           APELT V. RYAN                              67

evidence proffered in the PCR.19 However, Apelt fails to
clear the third hurdle: he has not shown that, after reweighing
the aggravating and mitigating evidence, there is a reasonable
probability that, absent the errors, the sentencer would have
concluded that the balance of aggravating and mitigating
circumstances did not warrant death. Therefore he has not
shown that the state courts’ determination of no prejudice is
so unreasonable that no reasonable jurist could agree with it.

    Apelt cites cases such as Williams, 529 U.S. 362, Wiggins
v. Smith, 539 U.S. 510 (2003), and Stankewitz, 365 F.3d 706,
as showing that neither the brutality of the underlying murder,
nor the defendant’s prior criminal acts, excuse counsel’s
failure to investigate the defendant’s background. Apelt’s
argument is fair, but overlooks a critical distinction. In all
three of those cases, the murders were not planned: rather
than being premeditated, the murders were the result of other
motives, such as robbery and kidnaping.

    Here, Cindy’s murder was premeditated and calculated.
The record shows that from the time Apelt entered the United
States around Labor Day 1988, he lied to and manipulated
others, and borrowed and stole money from women. He was
intent on marrying a woman for her money. In less then a
month he proposed to three different women. He convinced
Cindy to secretly marry him in Las Vegas by leading her to
believe that he was wealthy. A little over a week after the
marriage, Apelt visited an insurance broker seeking to take
out a million dollar insurance policy on Cindy’s life. As
borne out by subsequent events, Apelt’s unwavering intent


    19
       However, there are indications in the record, such as Detective
Davis’s testimony at trial, of evidence that would contradict the evidence
Apelt proffered in support of his PCR.
68                        APELT V. RYAN

was to murder the woman he had convinced to marry him in
order to collect on the insurance policy.

    When the insurance broker indicated that they could not
obtain a million dollar policy, Apelt and Cindy filled out an
application for a $400,000 policy. When the company did not
accept the application for a $400,000 policy, Apelt agreed to
take out two policies, one for $100,000 and another for
$300,000. All of these applications were paid for by Cindy.

    In early December, Apelt told Anke that Cindy had a lot
of insurance and that if she died an unnatural death, he would
be rich. At about the same time, Anke and Rudi reserved a
rental car with a good-sized trunk, but cancelled the
reservation a couple of days later. On December 22, the
insurance agent told Apelt and Cindy that the two insurance
policies were in effect.20 The next day Rudi and Anke
returned to the car rental agency and rented the car with a
large trunk. Apelt told Rudi and Anke that they would have
lots of money if they would “go out and kill Cindy.” That
night Apelt drove Cindy out into the desert and he and Rudi
murdered her.

    Apelt acted as if he had no involvement in Cindy’s
murder. He pretended to wait for her for a late dinner at a
restaurant, penned a fake note to Cindy to that effect, and
cried in the presence of a police officer when Cindy’s sister
reported that Cindy was missing. After Cindy’s body was
discovered, Apelt continued to deny any knowledge of her


     20
       There is evidence in the record that Cindy was insistent that her
father review the insurance policy and the insurance agent explained to
Cindy and Apelt that Cindy had 10 days to talk the matter over with her
father and rescind the insurance policies if she wanted to.
                       APELT V. RYAN                         69

death. He went to the insurance agent seeking assistance to
obtain money so that he could attend Cindy’s funeral in
Illinois, and eventually obtained a $2,000 loan, using the life
insurance policy as collateral. Apelt flew to Illinois, attended
the funeral, and broke down in tears when he tried to speak at
the funeral.

     Meanwhile, Apelt continued to scheme in order to get
away with murder. When, on December 28, he returned the
rental car in which he had driven Cindy into the desert, the
two front tires had multiple flat spots caused by aggressive
harsh driving, thereby making it difficult to trace any tire
pattern. On January 3, Apelt flew to Los Angeles and paid a
homeless person to leave a message on Cindy’s answering
machine. At trial, Apelt maintained his innocence and from
jail attempted to get a note to Rudi instructing him on an
alibi.

    Although he had opportunities to abandon his scheme,
Apelt relentlessly pursued his scheme to murder the woman
he professed to love and had married, and he involved his
brother, Rudi, and Anke in the murder and the cover-up.
Nothing in the record indicates that any explanation for why
Apelt became a monster would have changed the sentence.

    This conclusion is all the more reasonable as none of the
proffered mitigating evidence excuses Apelt’s callousness,
nor does it reduce Apelt’s responsibility for planning and
carrying out the murder. Indeed, presenting Apelt’s
upbringing and activities in Germany to explain how Apelt
became a calculating killer arguably could weigh in favor
rather than against the death penalty. See Pinholster,
563 U.S. at 201 (noting that the “new evidence relating to
Pinholster’s family—their more serious substance abuse,
70                    APELT V. RYAN

mental illness, and criminal problems . . . —is also by no
means clearly mitigating, as the jury might have concluded
that Pinholster was simply beyond rehabilitation”).

    In sum, even assuming that we might have looked more
favorably on Apelt’s PCR than the state trial court, we cannot
conclude that there is no reasonable argument that Apelt was
not prejudiced. The evidence of Apelt’s depravity is
overwhelming. At the age of 25, Apelt concocted and carried
out a calculated plan to marry Cindy, to have her pay for her
own life insurance, and then, as soon as the insurance
premium was paid, to viciously and cruelly murder her.
Furthermore, he persuaded his younger, intellectually-
challenged brother to participate in the scheme and the actual
murder. We cannot say that it would be unreasonable to
conclude that further evidence as to how Apelt became such
a monster would have had no effect on his sentence.
Accordingly, we vacate the district court’s grant of the writ.

     D. Apelt has not shown that the state court’s denial of
        funding to investigate mitigation violated his
        constitutional rights.

    Apelt asserts that the trial court “eliminated any
opportunity for an individualized sentencing and a
presentation of mitigation” when it denied counsel funds for
travel to Germany. He argues that this violated his rights
under the Eighth and Fourteenth Amendments to
individualized sentencing. See Ake v. Oklahoma, 470 U.S.
68, 77 (1985) (noting that “a criminal trial is fundamentally
unfair if the State proceeds against an indigent defendant
without making certain that he has access to the raw materials
integral to the building of an effective defense”). Apelt
claims that the Arizona Supreme Court’s determination that
                            APELT V. RYAN                             71

he had not made an adequate showing of need “was both an
unreasonable application of and contrary to clearly
established federal law.”

    We agree with the district court that, because Villarreal
had offered only “undeveloped assertions” in support of his
request for funds, the Arizona Supreme Court’s denial of
relief was not unreasonable. In Caldwell v. Mississippi,
472 U.S. 320 (1985), the Supreme Court commented that,
because the petitioner in that case offered little more than
“undeveloped assertions that the requested assistance would
be beneficial,” the denial of requests for a ballistics expert
was not a denial of due process. Id. at 323 n.1. In Williams
v. Stewart, 441 F.3d 1030 (9th Cir. 2006), we stated that the
then “present rule is that an indigent defendant has a
constitutional right to investigative services, but that such
right comes into existence only when some need is
demonstrated by the defendant.” Id. at 1053–54 (quoting
Smith v. Enomoto, 615 F.2d 1251, 1252 (9th Cir. 1980)).

   In light of this federal law, the Arizona Supreme Court’s
denial of relief was not unreasonable. The court cited
Caldwell and found that Apelt’s assertion of “prior
psychiatric hospitalization, his difficult childhood, and his
low education level,” were insufficient to compel funding.21


   21
        The court commented:

          [Apelt] did not explain why the hospitalization might be
          mitigating, and he refused the court’s invitation to make
          a more detailed showing.

          In support of his motion for continuance, defendant
          again failed to explain what evidence was available in
          Germany and how it would assist him. He did not offer
72                          APELT V. RYAN

Apelt, 861 P.2d at 651–52. Perhaps, as Apelt asserts, today
reasonable jurists would be compelled to conclude that the
investigation of a capital defendant’s background and mental
history is so fundamental to the presentation of an adequate
defense that there is no need to demonstrate or explain why
it might be relevant.22 However, based on the existing federal
law in 1989, the Arizona Supreme Court’s decision—which
was based on a record that by and large refuted the need for
the proposed investigation—was not so outlandish that no
reasonable jurists could agree with it. The district court’s
denial of relief on Apelt’s challenge to the state courts’s



          any reason why a difficult childhood and lack of
          education would be mitigating.

          ...

          Not only did defendant fail to demonstrate reasonable
          necessity, but on appeal he fails to show how he was
          prejudiced. Defendant’s claims that he had a difficult
          childhood and little education conflicted with his
          statements in the presentence report that his childhood
          was fairly normal and that he had the equivalent of a
          high school education.

Apelt, 861 P.2d at 651–52.
     22
       This argument finds some support in the Supreme Court’s recent
decision in McWilliams v. Dunn, 137 S. Ct. 1790 (2017). In Justice
Breyer’s opinion for five justices, the Court granted federal habeas relief
on the ground that “Ake clearly established that a defendant must receive
the assistance of a mental health expert who is sufficiently available to the
defense and independent from the prosecution to effectively ‘assist in
evaluation, preparation, and presentation of the defense.’” Id. at
1799–1800 (quoting Ake, 470 U.S. at 83). However, this opinion does not
help Apelt as the Arizona Supreme Court’s decision is evaluated on clear
federal law as it existed in 1989.
                       APELT V. RYAN                        73

denial of funding to investigate mitigating evidence is
affirmed.

   E. Apelt has not shown that he is entitled to relief
      under Atkins.

   1. Apelt’s Contentions

    Apelt bases his argument on the Supreme Court’s
opinions in Atkins and Hall v. Florida, 134 S. Ct. 1986
(2014), that “the Eighth Amendment bars the execution of
people who are intellectually disabled according to current
medical standards.” He accepts that the applicable Arizona
statute, A.R.S. § 13-753(K)(3), defines intellectual disability
as requiring a showing of (a) significant subaverage general
intellectual functioning, (b) concurrent significant impairment
in adaptive behavior, and (c) onset before the defendant
reached the age of 18.

    Apelt argues that the evidence shows that he “suffers
significantly subaverage intellectual functioning.” Dr. Ruff
conducted a neuropsychological examination of Apelt in
2000 and determined he had a full-scale IQ of 61, and Dr.
Kury conducted his own examination in 2004 and found
Apelt’s full-scale IQ to be 65. Apelt argues the only
“evidence” that he had a higher IQ was the reported result of
a test given Apelt in Germany when he was nine years old,
which is unreliable because there is no evidence as to how it
was administered.

    Apelt also challenges the state court’s determination that
he was “malingering” and that accordingly the results of the
tests administered in 2000 and 2004 are not accurate. Apelt
argues that neither Dr. Ruff nor Dr. Kury opined that he was
74                     APELT V. RYAN

malingering during the test. Rather, they testified that, even
if Apelt had attempted to malinger, their conclusions
remained sound.

    Addressing the second prong of the intellectual disability
test, Apelt argues that Drs. Ruff and Kury agreed that he
suffers significant impairments in adaptive behavior, and that
the state court disregarded this testimony in concluding that
Apelt was “able to meet society’s expectations of him.” He
argues the state court improperly relied on the Arizona
Supreme Court’s opinion in State v. Grell, 135 P.3d 696
(Ariz. 2006), insofar as that case “permits the state court to
disregard evidence of adaptive behavior deficits.” Apelt
argues that he demonstrated numerous deficits in adaptive
behavior including the areas of “memory and orientation,
managing money, home and transportation, health and safety,
social adjustment, [and] functional academics.” He asserts
that all three experts agreed he suffers major deficits in his
adaptive behavior.

    In addition, Apelt challenges the state court’s reliance on
his past employment, military discharge, and marriage. He
asserts that he was only able to obtain unskilled work and
never held a job for very long, his military discharge was due
to “mental inadequacy,” and his marriage lasted for only two
years during which time his wife abused him mentally and
physically. Apelt notes that he never lived on his own.
During his stay in the United States, he lived in a motel,
where he was not required to prepare meals or perform
housekeeping duties, or with Cindy upon whom he relied to
help him obtain identification and the paperwork necessary to
get a job at Olive Garden.
                            APELT V. RYAN                                 75

     Apelt objects that the state court “improperly relied on the
facts of the crime to support its conclusion that Mr. Apelt
does not have the requisite adaptive behavior deficits to
qualify for a diagnosis of intellectual disability.” He argues
that the American Association on Intellectual and
Development Disabilities does not permit the use of criminal
behavior to assess adaptive behavior deficits. Moreover, he
criticizes the state court for emphasizing his strengths
because it is well-recognized that intellectually disabled
people can possess strengths along with weaknesses. He
similarly asserts that the state court “erred by placing too
much emphasis on Mr. Apelt’s adaptive behavior as an adult
and post-incarceration.”

     Finally, addressing the third prong of the test, Apelt notes
that every expert “agreed the 88 score [on the test he took
when he was a child] was erroneous and/or lacked the
necessary foundation for professional consideration in the
intellectual disability evaluation.” Thus, left with two
reliable IQ scores of 61 and 65, the only reasonable inference
is that Apelt’s limitation arose before he was 18, as reflected
in his childhood behavior and assignment to a special school.

    2. Apelt has not met his burden of showing that the state
       court’s denial of his Atkins claim is an unreasonable
       determination of the facts in light of the evidence
       presented.

   To prevail on his Atkins claim, Apelt must meet all three
prongs of the test for intellectual disability.23 State v.


    23
        Arizona’s arguments that we should not reach the merits of Apelt’s
Atkins claim are not persuasive. We find that Apelt did adequately raise
this claim in the district court, and that Apelt is not challenging the three-
76                         APELT V. RYAN

Boyston, 231 Ariz. 539, 543, 298 P.3d 887, 891 (2013). His
experts tested Apelt and determined that his IQ was 61 or 65.
The only evidence that he had a higher IQ was the result of a
test administered in Germany when he was nine on which he
scored an 88. But there is no evidence as to the reliability of
the German test, and even Arizona’s expert, Dr. Moran,
questioned the accuracy of this test. Furthermore, the
placement of Apelt into an elementary school for
intellectually disabled and learning disabled children is at
least some evidence that the German school administrators
recognized that Apelt was intellectually disabled, despite the
88 score. Accordingly, the totality of the evidence would
support the conclusion that Apelt had a “subaverage general
intellectual functioning” before he reached the age of 18.

    However, Apelt’s Atkins claim fails because the record
fairly supports the state courts’ determination that Apelt does
not suffer from significant deficits in adaptive behavior.
While Apelt focuses on his experts’ findings that he suffered
major deficits in his adaptive behavior, Arizona’s expert, Dr.


prong test set forth in A.R.S. § 13-753(K)(3). Rather, he focuses on the
application of the test to the facts in his case.

     Arizona also suggests that there is some tension between 28 U.S.C.
§ 2254(d)(2) and § 2254(e)(1), with subsection (d)(2) requiring the
petitioner to demonstrate “an unreasonable determination of the facts,”
while subsection (e)(1) requires the petitioner to rebut “the presumption
of correctness by clear and convincing evidence.” However, we need not
address this tension. We agree with Arizona that, as was the situation in
Murray v. Schriro, 745 F.3d 984, 1001 (9th Cir. 2014), the difference
between the two standards of review is not determinative. Indeed, it is
difficult to imagine a case in which a court would find that a state court
decision was “an unreasonable determination of the facts,” but that the
petitioner had not rebutted the “presumption of correctness by clear and
convincing evidence.”
                      APELT V. RYAN                        77

Moran, disagreed, and the state court could credit one expert
over another. More importantly, Apelt does not really
address the strongest evidence of his adaptive behavior: the
record of his activities in the United States. The state court
commented:

       [Apelt] traveled to the United States and
       Mexico, learned to speak English sufficiently
       to communicate and interact appropriately
       with others, negotiated purchases of vehicles
       and apartment leases, understood foreign
       currency exchange rates, and obtained
       employment. After persuading the victim to
       marry him, he convinced her to buy a life
       insurance policy as part of his scheme to
       murder her for the proceeds. Knowing he
       would eventually be questioned by the police
       about his wife’s disappearance, he devised an
       explanation that she left the apartment that
       evening after receiving a telephone call,
       telling him she would meet him later at a
       restaurant, and established an alibi consistent
       with this story. He maintained this story
       consistently despite persistent police
       interrogation and again more than a year later
       at his trial.

Indeed, Apelt’s activities in the United States reflect
ingenuity, cleverness, and an ability to manipulate others.
Accordingly, we cannot find that the state court’s
determination was not supported by substantial evidence or
is unreasonable. The district court’s denial of relief on
Apelt’s Atkins claim is affirmed.
78                     APELT V. RYAN

     F. Uncertified Issues

    As allowed by Ninth Circuit Local Rule 22-1(e), Apelt’s
brief raised two uncertified claims for relief: (1) the Arizona
Supreme Court applied an unconstitutional causal connection
requirement to his mitigation evidence; and (2) counsel was
ineffective at trial and sentencing for failing to challenge
Apelt’s competency. Pursuant to Ninth Circuit Local Rule
22-1(f), we asked Arizona to respond to the uncertified
issues. Arizona did, and we hereby certify the issues for
appeal, and deny Apelt’s claims on their merits. See Buck v.
Davis, 137 S. Ct. 759, 773 (2017).

     1. Apelt’s claim that the Arizona Supreme Court applied
        an unconstitutional causal nexus requirement is not
        persuasive.

    Apelt asserts that, when reviewing his conviction and
sentence, the Arizona Supreme Court applied an
unconstitutional causal nexus requirement by: (a) stating that
he “has failed to advance any credible argument as to why
some factors should be considered mitigating at all”; (b)
discounting the history of psychiatric hospitalization because
he “did not explain why hospitalization might be mitigating”;
and (c) rejecting his challenge to the lack of mitigation
funding because he “did not offer any reason why a difficult
childhood and lack of education would be mitigating.” Apelt,
861 P.2d at 651, 653–54. Apelt argues that since Lockett v.
Ohio, 438 U.S. 586 (1978), the Supreme Court has defined
mitigation as anything about a defendant’s character or record
that the defendant proffers as a basis for a sentence less than
death, and that in McKinney v. Ryan, 813 F.3d 798, 819 (9th
Cir. 2015) (en banc), we held that the Arizona Supreme Court
had acted contrary to Lockett and Eddings v. Oklahoma, 455
                           APELT V. RYAN                           79

U.S. 104 (1982), in imposing a causal nexus requirement
when it independently reviewed death sentences.

    Specifically, Apelt argues that, although the Arizona
Supreme Court did not cite State v. Ross, 886 P.2d 1354
(Ariz. 1994)—which the Ninth Circuit disapproved of in
McKinney—it did cite State v. Wallace, 773 P.2d 983, 986
(Ariz. 1989), when it rejected his denial of resources claim.24
Ross was not decided until after the Arizona Supreme Court
issued its opinion in Apelt, but Wallace, which also used an
unconstitutional causal nexus requirement, was decided four
years prior to Apelt. Apelt contends that the reference to
Wallace coupled with the Arizona Supreme Court’s
conclusion that it found “no mitigating factors” demonstrates
that the court followed the practice condemned in McKinney
of disregarding certain mitigating factors. Finally, Apelt
argues that even if the Arizona Supreme Court’s rejection of
his mitigation is not based on a lack of causal nexus, it
remains unconstitutional under Eddings and Lockett because
the United States Supreme Court has held that a defendant’s
good behavior is mitigating.

    24
      Apelt cites the following paragraph from the Arizona Supreme
Court’s opinion:

         In support of his motion for continuance, defendant
         again failed to explain what evidence was available in
         Germany and how it would assist him. He did not offer
         any reason why a difficult childhood and lack of
         education would be mitigating. See State v. Wallace,
         160 Ariz. 424, 427, 773 P.2d 983, 986 (1989) (difficult
         family background not a mitigating factor absent a
         showing that it had something to do with the murder),
         cert. denied, 494 U.S. 1047 (1990).

Apelt, 861 P.2d at 651 (parallel citations omitted).
80                     APELT V. RYAN

     The district court, which addressed the causal nexus claim
before we issued our en banc opinion in McKinney, denied
Apelt relief. The district court found Apelt’s claim to be
unsupported by the record. The district court noted that the
trial court had expressly stated that it had considered all of
Apelt’s proffered mitigation, and suggested that the trial
court’s statement was “virtually dispositive of Apelt’s claim.”
See Parker v. Dugger, 498 U.S. 308, 314–15 (1991). The
district court continued:

        As for the Arizona Supreme Court, its
        independent review did not exclude Apelt’s
        mitigating evidence from consideration.
        Apelt focuses on the court’s statement that
        Apelt “failed to advance any credible
        argument as to why some factors should be
        considered mitigating at all.” Apelt, 861 P.2d
        at 653–54. But that statement did not refer to
        the entirety of Apelt’s mitigation evidence but
        rather to Apelt’s argument that certain
        circumstances—namely his cooperation with
        the presentence investigation, the plea bargain
        offered to Rudi, and Dorn’s immunity—were
        in fact mitigating at all. Id. Again, there is no
        constitutional requirement that the sentencer
        assign proffered mitigating evidence any
        particular weight. See Harris [v. Alabama],
        513 U.S. [504,] 512 [(1995)].

     In McKinney, we explained:

        Based on (1) the factual conclusion by the
        sentencing judge, which the Arizona Supreme
        Court accepted, that McKinney’s PTSD did
                      APELT V. RYAN                       81

       not “in any way affect[ ] his conduct in this
       case,” (2) the Arizona Supreme Court’s
       additional factual conclusion that, if anything,
       McKinney’s PTSD would have influenced
       him not to commit the crimes, and (3) the
       Arizona Supreme Court’s recital of the causal
       nexus test for nonstatutory mitigation and its
       pin citation to the precise page in Ross where
       it had previously articulated that test, we
       conclude that the Arizona Supreme Court
       held, as a matter of law, that McKinney’s
       PTSD was not a nonstatutory mitigating
       factor, and that it therefore gave it no weight.
       This holding was contrary to Eddings.

813 F.3d at 821. In addition, we held that an Eddings error
was not structural error, and, therefore, McKinney had to
show prejudice. Id. at 821–22.

    In Apelt’s case, the Arizona Supreme Court denied his
claim, stating:

       We have independently reviewed the record
       and agree that the defendant failed to prove
       any mitigating factors sufficient to call for
       leniency. He has failed to advance any
       credible argument as to why some factors
       should be considered mitigating at all. We
       note that it was in the defendant’s own best
       interest to cooperate with the pre-sentence
       report writer and behave well at trial. We
       further note that, although the state considered
       offering Rudi a plea bargain, it did not do so
       and Rudi was in fact tried, convicted, and
82                          APELT V. RYAN

          sentenced to death. Given the necessity of
          Anke’s testimony and her lesser involvement
          in the conspiracy and murder, her more
          lenient treatment is not a mitigating factor.
          See State v. Schurz, 176 Ariz. 465, 575,
          859 P.2d 156, 167 (1993).25

861 P.2d at 653.

    None of the critical factors in McKinney are present in
this case. In particular: (1) the trial court did not state a
factual conclusion that any of Apelt’s proffered mitigation
failed to affect his conduct; (2) the Arizona Supreme Court
did not state a factual conclusion that any of Apelt’s proffered
mitigation would have influenced him not to commit the
crime; and (3) the Arizona Supreme Court did not cite Ross
or Wallace when reviewing Apelt’s mitigation evidence.

    Moreover, Apelt’s claim that the Arizona courts applied
an unconstitutional causal nexus requirement is subject to
AEDPA, and, accordingly, the state court’s legal and factual
determinations are entitled to deference. Apelt has not shown
that the Arizona courts failed to follow established federal
law because it appears that the Arizona Supreme Court did
consider all the proffered mitigation evidence. We review
state court decisions on the basis of established federal law as
of the time of the state court’s decision. See Greene v.

     25
       The pin citation to Schurz is to a statement that the Arizona
Supreme Court “has on occasion considered as a mitigating factor the
disparity between the sentence of a defendant sentenced to death and a
codefendant or accomplice sentenced to some term of imprisonment.
Upon review of the cases, however, it is clear that it is not mere disparity
between the two sentences that is significant, but, rather, unexplained
disparity.” Schurz, 859 P.2d at 167.
                          APELT V. RYAN                              83

Fisher, 565 U.S. 34, 38 (2011). Apelt also has not shown that
the Arizona Supreme Court’s determination is an
unreasonable determination of the facts. Even if the Arizona
Supreme Court’s opinion could be construed as implicitly
applying a causal nexus standard—which we doubt—Apelt
has not shown that reasonable jurists could not conclude
otherwise. See Richter, 562 U.S. at 101 (holding that federal
habeas relief is precluded so long as fairminded jurists could
disagree on the correctness of the state court decision).

    Finally, even if Apelt had a stronger argument that the
Arizona Supreme Court applied an unconstitutional causal
nexus requirement, he has failed to make the requisite
showing of prejudice required for federal habeas relief. The
Supreme Court in Eddings, 455 U.S. at 114–15, held that
although the states could not exclude mitigating evidence
from consideration, they were entitled to determine the
weight to be given mitigating evidence. See also Greenway
v. Ryan, 866 F.3d 1094, 1100 (9th Cir. 2017) (per curiam)
(stating “even if we were to determine that the state court did
apply the causal-nexus test in violation of Eddings, there
could have been no prejudice because the aggravating factors
overwhelmingly outweighed all the evidence that Greenway
asserted as mitigating”). In light of the overwhelming
evidence supporting the aggravating factors, a reasonable
jurist could conclude that whatever weight was afforded the
limited proffered mitigation evidence, it would not be
sufficient to call for leniency.26 Apelt has not shown that he


    26
      As noted by the Arizona Supreme Court, at the time of its opinion,
Apelt had proffered only limited mitigating evidence:

         [Apelt] offered his age [25] as a statutory mitigating
         factor and the following non-statutory mitigating
84                         APELT V. RYAN

is entitled to relief on his claim that the Arizona Supreme
Court applied an unconstitutional causal nexus requirement,
and the district court’s denial of relief on this claim is
affirmed.

     2. Apelt’s contention that trial counsel was ineffective
        because he failed to challenge Apelt’s competency to
        be tried and sentenced is not persuasive.

     Apelt correctly notes that the constitution prohibits the
trial of an intellectually disabled person, see Cooper v.
Oklahoma, 517 U.S. 348, 356 (1996), and that to be
competent to stand trial, a person must be able to consult with
counsel with a reasonable degree of rational understanding.
See Dusky v. United States, 362 U.S. 402, 402–03 (1960) (per
curiam). Apelt further asserts that counsel is obligated to
challenge his client’s competency when there is reason to
believe that the client may be incompetent, and that Arizona
Rule of Criminal Procedure 11 provides a mechanism to seek
a competency evaluation.




         factors: (1) his remorse as evidenced by his statement
         to Anke after Cindy’s funeral that he regretted killing
         Cindy; (2) his cooperation with the presentence report
         writer; (3) his new-found religious faith; (4) his lack of
         a record of serious crime; (5) his honorable discharge
         from the army; (6) his good behavior at trial; (7) the
         request by Annette and Kathy contained in the pre-
         sentence report that he not be sentenced to death; (8)
         the fact that Germany does not have the death penalty;
         and (9) the fact that Anke was given immunity and
         Rudi Apelt was offered a plea bargain.

Apelt, 861 P.2d at 653.
                           APELT V. RYAN                              85

    Apelt contends that his counsel’s performance fell below
the required standard under Strickland because Villarreal
failed “to investigate or litigate Mr. Apelt’s competency to
stand trial, despite the wealth of evidence demonstrating Mr.
Apelt suffered from a serious psychiatric disorder, was
suicidal prior to trial, and was being administered
medications known to have a dramatic effect on a patient’s
ability to interact with counsel and understand the
proceedings.” Apelt points out that Dr. Fisher testified that
the drugs Apelt was given during his pre-trial incarceration
were “generally considered to possess significant central
nervous system (CNS) depressant effects.” Apelt argues that
because Villarreal knew, or should have known, of Apelt’s
over-medication, hospitalization, and placement under suicide
watch while awaiting trial, he was ineffective in failing to
investigate Apelt’s competency to be tried and sentenced.
Apelt further asserts that Villarreal had no strategy for not
investigating Apelt’s competence, and thus his performance
fell below the minimum professional standard set forth in
Strickland.

    These claims of IAC are subject to AEDPA’s standard of
review.27 The district court found that “the record contains no
support for the proposition that Apelt was not competent to
stand trial.” It notes that Villarreal did not neglect to consider
Apelt’s competence. Rather, co-counsel traveled to Germany

    27
       Arizona argues that Apelt’s allegation that he was not competent to
be sentenced, as contrasted to his claim that he was not competent to be
tried, was not presented to the state courts, and accordingly, the federal
courts are procedurally barred from considering the allegation. The
district court, however, noted that Arizona had conceded that the claims
shared the same factual nexus and considered the claims together. As a
matter of judicial efficiency, we choose to consider the claims together
and to deny them.
86                           APELT V. RYAN

before the trial but failed to find evidence that would support
a motion to determine competency. Also, Apelt was actively
involved in his defense and the trial proceedings. It appears
that Apelt’s behavior at trial and his testimony gave no cause
for Villarreal to doubt his competence.28

     In denying Apelt’s claim of lack of competence to stand
trial, the district court recognized that Apelt had been
prescribed powerful drugs prior to and during his trial, but
held that this fact in itself did not render him incompetent and
that there was no evidence “that the drugs did in fact affect
his competence.” See Shan Wei Yu, 484 F.3d at 985. The
district court similarly found that Apelt’s placement on
suicide watch and his history of mental health problems were
not sufficient to show he was incompetent, particularly as he
“failed to identify an instance in which he behaved
irrationally, appeared not to understand the proceedings, or
did not communicate effectively with Villarreal.”

    Apelt’s claims turn not on whether he was, in fact,
competent, but whether Villarreal was ineffective under the
Strickland standard in failing to question Apelt’s competence.
In a federal habeas proceeding, a state court ruling on IAC is
entitled to double deference. Pinholster, 563 U.S. at 189.


     28
      The district court commented that Apelt: (a) “filed a pro per motion
to change counsel” and complained that counsel failed to adequately
communicate with him; (b) “authored jailhouse notes to his brother which
indicated Apelt was keenly aware of the factual details of his case,
including the evidence against him, and was rationally communicating
with counsel about his defense”; (c) “notified Villarreal that certain jurors
had observed him being escorted from the courtroom wearing shackles”;
and (d) testified at length and in detail about his travels, the events leading
to his marriage, and the purchase of the life insurance policy as an
investment for their children.
                       APELT V. RYAN                        87

Our review of the record fails to disclose any incident or
exchange that would have put Villarreal on notice that he
should question Apelt’s competency to stand trial. Even if
Villarreal should have, but failed to, pay attention to Apelt’s
medication and treatment while incarcerated pending trial,
this would not necessarily have raised questions of
competency in light of Apelt’s active and coherent
involvement in the proceedings. Because we find that Apelt
has not shown that the state courts unreasonably denied his
claim of incompetence to stand trial, we affirm the district
court’s denial of relief on Apelt’s claims that he was
incompetent to stand trial or be sentenced.

                             IV.

    It has been 29 years since Apelt murdered his wife of less
than two months. We have carefully reviewed the briefs and
records in this case and conclude that Apelt’s federal habeas
petition should be denied. We reject Arizona’s arguments
that we lack jurisdiction to consider Apelt’s claim of
ineffective assistance of counsel at sentencing, and we agree
with the district court that Apelt was denied effective
assistance of counsel at sentencing. However, we find that
Apelt has failed to show that the state courts’ determination
that counsel’s deficient performance was not prejudicial was
unreasonable: there are reasonable arguments that the
proffered additional mitigating evidence would not have
changed Apelt’s sentence. Accordingly, the district court’s
grant of the petition is vacated.

    We reject all of Apelt’s challenges to his conviction and
sentence. He has not shown that, under the extant federal law
at the time, the Arizona courts violated his constitutional
rights by denying counsel funding to investigate mitigating
88                     APELT V. RYAN

evidence. See Caldwell, 472 U.S. at 323 n.1; Williams,
441 F.3d at 1054. He has not shown that he is entitled to
relief under Atkins because the record fairly supports the state
courts’ determination that he does not suffer from significant
deficits in adaptive behavior. We have reviewed the Arizona
Supreme Court’s opinion pursuant to our en banc opinion in
McKinney, 813 F.3d 798, and conclude that the court did not
impose an unconstitutional causal nexus requirement when it
affirmed Apelt’s capital sentence. Finally, we conclude that
Apelt has not shown that his counsel was ineffective in failing
to question his competence to stand trial and be sentenced.

   The district court’s grant of the writ is vacated and
Apelt’s federal habeas petition is denied.
