                      FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 JOSEPH WELDON SMITH,                                 No. 14-99003
             Petitioner-Appellant,
                                                        D.C. No.
                       v.                            2:07-cv-00318-
                                                       JCM-CWH
 RENEE BAKER, Warden; AARON D.
 FORD,* Attorney General of the State
 of Nevada,                                             OPINION
              Respondents-Appellees.


         Appeal from the United States District Court
                  for the District of Nevada
          James C. Mahan, District Judge, Presiding

              Argued and Submitted July 11, 2019
                     Seattle, Washington

                        Filed May 21, 2020

       Before: N. Randy Smith, Mary H. Murguia, and
              Morgan Christen, Circuit Judges.

                 Opinion by Judge Christen;
               Concurrence by Judge N.R. Smith



     *
       Aaron D. Ford is substituted for his predecessor, Adam Paul Laxalt,
as Nevada Attorney General, pursuant to Fed. R. App. P. 43(c)(2).
2                          SMITH V. BAKER

                            SUMMARY**


                 Habeas Corpus/Death Penalty

    The panel affirmed the district court’s judgment
dismissing Joseph Weldon Smith’s habeas corpus petition
challenging his Nevada convictions for three murders and one
attempted murder, and his death sentence for one of the
murders.

    The district court issued a certificate of appealability for
Smith’s argument that the procedural default of his
ineffective-of-assistance-of-counsel claim should be excused
pursuant to Martinez v. Ryan, 566 U.S. 1 (2012). The panel
held that Smith did not show that he was prejudiced by the
lack of an evidentiary hearing, and that the district court did
not abuse its discretion by dismissing the Martinez claim
without holding one. Applying Martinez and Strickland v.
Washington, 466 U.S. 668 (1984), the panel held that Smith
satisfied his burden of demonstrating a substantial argument
that the performance of his second penalty-phase counsel was
deficient for failing to investigate mental health mitigation
evidence, but that Smith did not show that he was prejudiced
by counsel’s deficient performance.

    The panel certified for appeal Smith’s claim that the death
verdict violated Stromberg v. California, 283 U.S. 359
(1931). The panel held that Smith demonstrated Stromberg
error because it was impossible to tell whether the jury
unanimously found mutilation, which was the sole basis 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.
                      SMITH V. BAKER                        3

support the death verdict after the Nevada Supreme Court
invalidated the trial court’s depravity-of-mind jury
instruction. The panel concluded that the error was harmless
because the invalid instruction did not have a substantial and
injurious effect on the jury’s verdict.

   The panel declined to certify Smith’s remaining
uncertified claims.

    Concurring, Judge N.R. Smith would affirm the dismissal
of Smith’s ineffective-assistance-of-counsel claim as
procedurally barred on a different ground—that counsel’s
performance during the second penalty-phase hearing was not
deficient, and that the claim is therefore insubstantial.


                        COUNSEL

Robert Fitzgerald (argued), David Anthony, Heather Fraley,
and Brad D. Levenson, Assistant Federal Public Defenders;
Rene L. Valladares, Federal Public Defender; Office of the
Federal Public Defender, Las Vegas, Nevada, for Petitioner-
Appellant.

Jeffrey Morgan Conner (argued), Deputy Assistant Attorney
General; Victor-Hugo Schulze II, Senior Deputy Attorney
General; Heidi Parry Stern, Chief Deputy Attorney General;
Office of the Attorney General, Las Vegas, Nevada; for
Respondents-Appellees.
4                      SMITH V. BAKER

                          OPINION

CHRISTEN, Circuit Judge:

    In 1992, a Nevada jury convicted Joseph Weldon Smith
of three counts of first degree murder with use of a deadly
weapon for beating and strangling his wife, Judith Smith, and
his step-daughters, Wendy Jean Cox and Kristy Cox. The
women were killed in a home the Smiths were renting in
Henderson, Nevada. The jury also convicted Smith of
attempting to murder Frank Allen with use of a deadly
weapon. Allen owned the home the Cox family was renting.
For Wendy’s and Kristy’s murders, Smith was sentenced to
death. For Judith’s murder, he was sentenced to life in prison
without the possibility of parole.

    Smith appealed his convictions and sentences. The
Nevada Supreme Court affirmed the convictions, but it
vacated the death sentences and remanded for a new penalty
hearing. See Smith v. State, 881 P.2d 649 (Nev. 1994) (Smith
I). After a second penalty hearing, Smith was again
sentenced to death for Wendy’s and Kristy’s murders. On
appeal, the Nevada Supreme Court vacated the death sentence
for Kristy’s murder and instead imposed a sentence of life
without the possibility of parole, but it affirmed the death
penalty for Wendy’s murder. See Smith v. State, 953 P.2d
264 (Nev. 1998) (Smith II).

    Smith filed a pro per habeas petition in state district court,
which was denied, and the Nevada Supreme Court affirmed
that ruling in an unpublished order. Smith then filed a pro
per habeas petition in federal district court. That court
appointed counsel for Smith and stayed the federal
proceedings so Smith could return to state court to exhaust
                      SMITH V. BAKER                         5

certain claims. The state district court denied Smith’s second
state habeas petition on procedural default grounds, and the
Nevada Supreme Court affirmed that decision. Smith then
returned to federal court, where the State’s motion to dismiss
was granted in part and denied in part. The federal district
court later denied the remainder of Smith’s petition but issued
a certificate of appealability for his argument that the
procedural default of his ineffective assistance of counsel
(IAC) claim should be excused pursuant to Martinez v. Ryan,
566 U.S. 1 (2012). Smith appeals the denial of his federal
habeas petition.

    We affirm the district court’s judgment dismissing
Smith’s IAC claim as procedurally barred. Although we
conclude that his counsel’s performance at the second
penalty-phase hearing was deficient, Smith has not shown
that he was prejudiced by his counsel’s performance. Smith’s
IAC claim therefore remains procedurally defaulted, and
cannot serve as a basis for federal habeas relief.

    Smith also asserts nine uncertified claims on appeal. We
may issue a certificate of appealability when a petitioner
shows “that reasonable jurists could debate whether . . . the
petition should have been resolved in a different manner or
that the issues presented were ‘adequate to deserve
encouragement to proceed further.’” Miller-El v. Cockrell,
537 U.S. 322, 336 (2003) (quoting Slack v. McDaniel,
529 U.S. 473, 484 (2000)). We certify Smith’s eighth claim,
which alleges violation of the rule set out in Stromberg v.
California, 283 U.S. 359 (1931), but we ultimately conclude
that this claim does not entitle Smith to habeas relief because
the Stromberg error was harmless. The remaining uncertified
claims do not raise substantial questions of law. We decline
to certify them because we are not persuaded that “reasonable
6                     SMITH V. BAKER

jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Miller-El,
537 U.S. at 338 (quoting Slack, 529 U.S. at 484). We
therefore affirm the district court’s order dismissing Smith’s
federal habeas petition.

                  I. Factual Background

   The facts relating to the murders and to Smith’s first trial
and penalty-phase hearing were recounted by the Nevada
Supreme Court in Smith I, as follows:

       During the trial Michael Hull, a police officer
       for the City of Henderson, testified as follows:
       On Saturday, October 6, 1990, at
       approximately 2:29 a.m., he was dispatched to
       the Fountains, a gated community in
       Henderson. While on his way, Hull was
       flagged down by a man who subsequently
       identified himself as Frank Allen. Allen
       appeared frantic and Hull observed blood on
       his shirt and blood running down the left side
       of his head. Allen told Hull that Smith had
       attacked him with a hammer or a hatchet.

       After arriving at the Smiths’ home, located at
       2205 Versailles Court inside the gated
       community, Hull and two other officers
       observed a large broken window lying on the
       front porch outside the house. Allen had
       explained to the officers that he had left
       through that window. The officers entered the
       premises and, during a search of a bedroom,
       observed what appeared to be a figure beneath
              SMITH V. BAKER                      7

a blanket. After lifting the blanket, they
discovered a dead body, subsequently
identified as twelve-year-old Kristy Cox. In
an adjacent bedroom they discovered a second
body, also dead and covered with a blanket,
later identified as twenty-year-old Wendy
Cox. Under a blanket in the master bed, the
officers found a third victim, Kristy and
Wendy’s mother and Smith’s wife, Judith.

The officers also located some notes written
by Smith. The first, found inside a briefcase
in the upstairs den, and dated October 5, 1990,
read:

   A triple murder was committed here this
   morning. My wife, Judith Smith and my
   two stepdaughters, Wendy Cox and Kristy
   Cox, were assassinated. I know who did
   it. I know who sent them. I had been
   warned that this would happen if I did not
   pay a large sum of money to certain
   people. I have been owing it for a long
   time and simply could not come up with
   it. And I didn’t believe the threat. I don’t
   need any help from the police in this
   matter. I will take care of it myself. They
   will have to kill me, too. When and if you
   find me, I’m sure I will be dead, but that’s
   okay.     I already killed one of the
   murderers. And I am going to get the
   others and the man who I know sent them.
   There were three in all. You will
8                 SMITH V. BAKER

       probably find my body within a day or
       two.

       Thank you, Joe Smith.

       P.S.: I thought I had gotten away when
       we moved here, but it didn’t work. When
       we moved, we were being watched. If I
       am successful in my task at hand, I will
       turn myself into (sic) the police.

    The second letter stated, “Frank [Allen], look
    in the locked room upstairs for your package.
    The key is on the wet bar. Joe.” Dr. Giles
    Sheldon Green, Chief Medical Examiner for
    Clark County, testified that he performed the
    autopsies on the bodies of the three victims.
    Green stated that all three victims died from
    asphyxia due to manual strangulation. He
    also opined that the pattern of injuries found
    on the three victims could have been inflicted
    with a carpenter’s hammer. On Kristy, Green
    observed three blunt lacerations to the scalp
    and a lot of blood in Kristy’s hair, some
    bruising and a scratch on her neck, and
    substantial hemorrhaging as a result of the
    trauma to her scalp.

    On Wendy, Green observed several “quite
    ragged, irregular, deep lacerations of the
    forehead,” and at least six or seven wounds of
    the face. There were a total of thirty-two head
    lacerations, some of which were patterned
    injuries of pairs of penetrating wounds of the
               SMITH V. BAKER                      9

scalp tissue. On the left side of Wendy’s
head, a large laceration inside the ear almost
cut the outer ear in two. Green found
numerous scratches and abrasions on the front
of Wendy’s neck, as well as defensive
wounds, such as a fractured finger, bruises on
the backs of her hands and a finger with the
skin over the knuckle knocked away. Green
found areas in which the various head impacts
had created depressed fractures of the outer
and inner surfaces of the skull. There was
also a great deal of hemorrhaging and damage
to the soft tissues of Wendy’s neck.

On Judith, Green found lacerations of the
forehead and above her right eyebrow,
abrasions and scratches on the front of her
neck and a cluster of at least five lacerations
of the scalp, mainly on the right side of the
back of the head. It was Green’s opinion that
the five lacerations were inflicted after death.

Allen testified as follows: He met Smith in
September 1990, when Smith came to Allen’s
home located at 2205 Versailles Court, inside
the Fountains, wishing to purchase that home.
Although Allen first indicated that the house
was not for sale, after Smith agreed to pay
$50,000 over the appraised value of $650,000,
Allen agreed to sell him the house. Allen
subsequently gave Smith the keys to the
house, but retained one of the bedrooms for
his use when he came to Las Vegas on
weekends, until the sale was final. Smith
10                 SMITH V. BAKER

     informed Allen that he was in a rush to move
     into the house because he wanted to make
     preparations for his step-daughter, Wendy’s,
     wedding in November.

     On September 21, 1990, Smith gave Allen a
     personal check for $35,000 as a good faith
     deposit. Approximately six days later, the
     bank notified Allen that the check had been
     returned because Smith had closed his
     account. Smith assured Allen that he would
     mail him a certified check immediately. Two
     days later, having not received a check, Allen
     indicated to Smith that he would be coming to
     Las Vegas on Friday, October 5, 1990, and
     would pick up the check then.

     On Friday morning, Allen received a call from
     Smith who stated, “I thought you were
     coming up here this morning.” Allen told
     Smith that he would be coming later in the
     day. Smith stated that he and his wife were
     going to California to shop for furniture that
     day, so they arranged for Smith to leave two
     checks, the $35,000 deposit check and a
     $3,338.80 check for the October mortgage
     payment, behind the wet bar in the house,
     along with Allen’s mail.

     Allen arrived at the house between 1:00 a.m.
     and 1:30 a.m. on Saturday, October 6, 1990,
     and noticed that the security system was off.
     He went behind the wet bar to retrieve his
     mail and found the note from Smith telling
               SMITH V. BAKER                       11

him to look in the locked room upstairs for the
package. Allen went to that room and, not
finding any checks, went into the game room.
Although the light was not on in the game
room, the area was illuminated by a large
chandelier in the hallway.

In the game room, Allen saw Smith crouched
in the closet. Smith then jumped out and
began to pound Allen in the head with an
object, which Allen assumed was a hammer.
Allen asked Smith what he was trying to do,
but Smith did not say anything. Realizing that
Smith was trying to kill him, Allen said,
“You’re not going to get away with this,” and
pushed Smith backward and ran down the
stairway with Smith pursuing him. Allen tried
to figure out the best way to get out of the
house, and after realizing that he had locked
himself in, ran straight through the full-length,
leaded-glass front door. He then got into his
car and drove to the guard shack at the
entrance to the development and asked the
guard to call the police.

Eric Lau, the security guard then on duty at
the guard-gated entrance to the Fountains,
testified that at approximately 2:30 a.m. on
Saturday, October 6, 1990, Allen ran up to the
side of the guard house and pounded on the
window. Allen’s shirt was covered with
blood and he said, “He’s after me! He’s after
me!” Lau immediately called for help and
12                  SMITH V. BAKER

     then saw Smith’s Lincoln automobile exit the
     Fountains, with Smith behind the wheel.

     Yolanda Cook, Judith’s daughter-in-law,
     testified that on the morning of Friday,
     October 5, 1990, at 8:00 a.m., she called the
     Smiths’ house to see if someone could take
     her son to school. She spoke with Smith, who
     told her that he had to go to a meeting and that
     Judith, Wendy and Kristy had gone shopping
     for Wendy’s wedding. Between 9:00 a.m. and
     3:30 p.m., Yolanda called the Smiths’ house
     three more times, and each time Smith told
     her that Judith and her daughters were away.

     Yolanda further testified that on Saturday,
     October 6, 1990, at approximately 5:00 a.m.,
     Smith called her and told her of the three
     murders. He told her that Allen came into the
     house and bludgeoned them to death. Smith
     requested that she tell all of Judith’s other
     children and then go to the house and get the
     letters out of his briefcase explaining what
     happened. He then told her that he was going
     to kill himself and hung up the phone.

     William Lawrence Cook, one of Judith’s sons,
     testified that Smith had expressed concern and
     irritation over financial obligations such as
     Wendy’s pending wedding and the new
     house. William testified that Smith would
     often refer to himself as the “Lone Wolf” and
     say, “I gotta get outta here.” Sometimes
     Smith would say that he just wanted to go
              SMITH V. BAKER                     13

away and live on an island somewhere
“around no kind of family or nothing like
that.” William also remembered Smith telling
him that “the worse thing to f___ up a man
was to have a family.” Smith made these
statements during a collection of
conversations over a period of years.

Smith took the stand on his own behalf and
testified as follows: In 1986 he encountered
financial difficulties and agreed to accept a
drug dealing opportunity in Los Angeles with
an organization. That same year, Smith
moved to Las Vegas and continued working
for the organization. At some point, the
organization falsely accused Smith of stealing
cocaine and told Smith that he now owed the
organization a big debt. Smith quit working
for the organization and in 1989 Gino, a man
from the organization, found Smith and
reminded him of the debt, saying that “it had
to be paid or else they were going to give
[him] a fate worse than death.”

He resumed working for the organization, and
also began to look for a new house in a gated
community. He found the house at the
Fountains and arranged payment terms with
Allen, which included giving Allen eleven
kilograms of cocaine in exchange for the
equity in the house. The eleven kilograms
were part of a twenty kilogram shipment
which Smith had received from the
organization and had decided to keep for
14                 SMITH V. BAKER

     himself. Smith gave Allen ten kilograms of
     cocaine, worth approximately $200,000, on
     the same day that he gave Allen the $35,000
     check. He claimed that Allen knew that the
     check was no good and served only to make
     the transaction seem legitimate, and said he
     would not deposit it.

     On Thursday, October 4, 1990, Smith left the
     additional kilogram of cocaine owed Allen in
     Allen’s bathroom sink, upstairs where Allen
     stayed when he was in town for weekends.
     That same day, Smith told the organization
     that he had sold twenty kilograms of cocaine
     and was keeping the money because he was
     “tired of working for peanuts.”

     Between 2:00 a.m. and 3:00 a.m. on the
     morning of Friday, October 5, while he was in
     bed with Judith, he was awakened by a tap on
     his toe. He then saw three men standing over
     his bed, one of whom picked up a hammer
     Smith had been using the previous night and
     began slapping it in his hand and asking Smith
     where the “stuff” was. Another man, who had
     a sawed-off shotgun, forced Smith to go into
     the game room and made him lay down and
     stay there. Smith subsequently discovered
     that his family had been killed.

     On Friday, after the murders, he remembered
     receiving three phone calls from Yolanda. He
     stated that “I brushed her off like I had other
     things to do, a meeting I had to attend . . . I
              SMITH V. BAKER                      15

really needed some time to sort this out.
There was too many loose ends that I didn’t
have answers to.” Smith stated that he did not
go to the police because he would have to tell
them about the drugs and because it looked
like he committed the crime and he knew they
would put him in jail. He stated that he was
also trying to figure out if Allen might have
been involved in the murders and might have
provided the killers with keys to the house.
He called Allen that Friday morning to see if
he could find out from Allen’s voice if Allen
was involved in the murders. After the phone
call, he decided that Allen was not involved.

At approximately 4:00 p.m. on Friday, Smith
took some sleeping pills and lay down on the
game room floor by the closet. Early
Saturday morning, he awoke to the sounds of
someone coming into the game room. He
thought that the killers had returned and began
swinging the hammer at a man. He did not
know it was Allen because it was dark and
Allen did not say anything during the attack.

Six months after the murders, Smith was
arrested in California. When he was arrested,
evidence was seized which indicated that he
was attempting to change his identity. Smith
was charged with three counts of murder with
16                    SMITH V. BAKER

        use of a deadly weapon and one count of
        attempted murder with use of a deadly
        weapon.

Id. at 650–53.

                  II. Procedural History

     A. Trial and Direct Appeal

    A Nevada jury convicted Smith of three counts of murder
and one count of attempted murder. Smith I, 881 P.2d at 653.
The State alleged a single statutory aggravator, that the
murders involved “torture [, depravity of mind] or the
mutilation of the victim.” Nev. Rev. Stat. § 200.033(8). The
jury imposed the death penalty for Kristy’s and Wendy’s
murders, life without possibility of parole for Judith’s
murder, and a twenty-year term for the attempted murder of
Frank Allen, enhanced by an additional twenty-year term for
use of a deadly weapon. Smith I, 881 P.2d at 653–54. On
direct appeal, the Nevada Supreme Court vacated the two
death sentences and ordered a new penalty hearing because it
deemed Instruction 10, which instructed the jury on
“depravity of mind,” unconstitutionally vague. The court
reasoned that this Instruction failed to properly channel the
jury’s discretion. See id. at 654–56.

    At the second penalty hearing, the State again alleged a
single aggravator pursuant to Nev. Rev. Stat. § 200.033(8)
and the court again used Jury Instruction 10. But the court
also added Instruction 11 to further define “depravity of
mind.” Smith’s counsel moved to dismiss the aggravating
circumstances as to Kristy, arguing there was insufficient
evidence of torture, mutilation, or depravity of mind. Smith
                       SMITH V. BAKER                        17

II, 953 P.2d at 265. The trial court granted the motion in part,
ruling there was insufficient evidence of torture and
mutilation. The court allowed the jury to consider depravity
of mind as to Kristy’s murder, but the jury considered all
three theories of the aggravator for Wendy’s murder. Id. The
special verdict form shows that the second jury found
depravity of mind with respect to Kristy’s murder, and
depravity of mind and mutilation with respect to Wendy’s
murder. Id. The second jury reimposed the death penalty.
Id.

    Smith appealed, and the Nevada Supreme Court again
vacated the death sentence for Kristy’s murder. Id. at 265,
267. The court ruled that the instructions for depravity-of-
mind still failed to properly channel the jury’s discretion in
connection with the charges stemming from Kristy’s death.
Id. at 267. The court imposed a life sentence without the
possibility of parole for Kristy’s murder. Id. As to Wendy’s
murder, the court upheld the death sentence, concluding that
the jury instructions concerning mutilation were
constitutionally sound, and that there was sufficient evidence
from which a reasonable jury could find mutilation beyond a
reasonable doubt. Id. at 267–68.

   B. State Post-Conviction Review Proceedings

     Smith filed a pro per state habeas petition in August
1998. Several attorneys were sequentially appointed to
represent him—Gary Gowen, David Schieck, Karen
Connolly, Cristina Hinds, and Christopher Oram—during the
first post-conviction proceedings. An amended petition and
two supplements were filed on Smith’s behalf. The state
district court denied Smith’s post-conviction petition in 2005,
18                    SMITH V. BAKER

and the Nevada Supreme Court affirmed that decision in
2006.

    In 2007, Smith filed a pro per habeas petition pursuant to
28 U.S.C. § 2254 in federal court. An attorney appointed to
represent Smith filed an amended petition several months
later. The federal district court stayed the proceedings so
Smith could return to state court to exhaust additional claims.
Back in state court, Smith’s amended habeas petition was
denied, and the Nevada Supreme Court affirmed that decision
in 2010.

    Smith then resumed pursuit of his federal claims. The
district court denied his habeas petition in March 2014, but
subsequently granted a Certificate of Appealability for Claim
4 (ineffective assistance by penalty-phase counsel for failing
to investigate and present mitigation evidence of Smith’s
mental health). Smith timely filed a notice of appeal.

                 III. Standard of Review

    We review de novo the district court’s order denying
Smith’s federal habeas petition. Rodney v. Filson, 916 F.3d
1254, 1258 (9th Cir. 2019). Pursuant to the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), we may grant
habeas relief on a claim adjudicated on the merits in state
court only if the state court decision “was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States,” or if the decision “was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(1), (2). “[A]ny federally reviewable claims that
were not adjudicated on the merits in state court are reviewed
                       SMITH V. BAKER                        19

de novo.” Rodney, 916 F.3d at 1258 (citing Runningeagle v.
Ryan, 825 F.3d 970, 978 (9th Cir. 2016)).

                       IV. Discussion

   A. Claim 4—Martinez

    Smith’s federal habeas petition asserts that his second
penalty-phase lawyers were ineffective for failing to
investigate, develop, or present mitigation evidence during
the second penalty phase. Smith exhausted this claim in state
court, but the Nevada Supreme Court concluded that it had
been procedurally defaulted. The claim was first presented in
Smith’s second habeas petition and the state supreme court
ruled it was untimely pursuant to Nev. Rev. Stat. § 34.726(1),
and successive pursuant to Nev. Rev. Stat. § 34.810(2).
Smith’s federal petition argued that the procedural default of
this claim should be excused pursuant to the test set forth in
Martinez, 566 U.S. at 10–17.

     Martinez allows the procedural default of a claim to be
excused under specific circumstances. Id. at 17. To show
cause for excusing a procedural default, Martinez requires
that a petitioner show that the state system in which he
initially brought his IAC claim required that the claim be
raised in initial-review collateral proceedings, and that the
state did not permit the petitioner to raise the claim on direct
appeal. Runningeagle, 825 F.3d at 973. A petitioner must
further show that the attorney who represented him in state
post-conviction proceedings performed deficiently and
thereby prejudiced his case under the standard set out in
Strickland v. Washington, 466 U.S. 668 (1984).
Runningeagle, 825 F.3d at 973.
20                      SMITH V. BAKER

     In support of his federal petition, Smith argued that his
lawyers at the first state post-conviction review proceeding
were ineffective because they failed to raise an IAC-by-trial-
counsel claim. Smith highlighted numerous facts available to
trial counsel that he considered to be evidence of mental
illness and argued that his penalty-phase counsel should have
raised evidence of mental illness in mitigation. Among other
things, Smith contended that his counsel should have argued
that he engaged in numerous fraudulent real estate deals over
the years leading up to the murders, that he had an outburst
during his guilt phase testimony where he threw newspaper
articles at the jury, and that he had insisted on testifying at the
trial even though his explanation of the circumstances
surrounding the murders was obviously implausible.

    Smith’s counsel retained two mental health experts and
submitted their declarations in support of his federal petition.
One expert opined that Smith exhibited a “delusional disorder
of the grandiose type” since early adulthood. This expert
opined that individuals with delusional disorder “cannot
escape their delusions or acting on the delusions,” and that
the letter Smith left at the crime scene indicating that
intruders murdered his wife and step-daughters was evidence
of this, as was Smith’s persistence in relating his version of
events to the jury despite his intelligence and despite the
patent unbelievability of his story. The other expert’s
declaration agreed that Smith suffers from grandiose
delusions, and observed, “Smith suffers from clinically
significant psychiatric difficulties . . . far predat[ing] the
above described crimes for which he has been convicted and
sentenced[,] and [] these psychiatric difficulties have had and
continue to have a significant impact on Mr. Smith’s ability
to function in important areas of his life.” This expert
explained that Smith’s behavior “reflect[s] mental health
                      SMITH V. BAKER                        21

problems and distorted thinking,” and that when the expert
met with Smith, he “evidence[d] specific paranoid and
grandiose delusions.” Smith submitted to psychometric
testing for a pre-guilt phase competency interview in 1992,
and that evaluation was filed in support of his federal habeas
petition. The competency assessment concluded that Smith
was competent to stand trial and that Smith did not suffer
from any acute or Axis I mental disorders, although it noted
that he suffered from a mixed personality disorder and
displayed antisocial behavior, grandiosity, and histrionic
features during the competency interview.

    The federal district court considered this evidence and
discussed it in an order concluding that Smith’s IAC claim
was procedurally barred by Nev. Rev. Stat. § 34.726,
Nevada’s timeliness rule, because Smith did not assert this
claim until he returned to state court to file his exhaustion
petition. The district court also determined that Smith failed
to show that habeas counsel provided ineffective assistance
for purposes of satisfying the cause and prejudice components
of Martinez because, even considering the new evidence
relating to Smith’s mental health, Smith did not show a
reasonable probability that there would have been a more
favorable outcome at the penalty phase of his trial.

     On appeal, Smith argues that the record establishes cause
and prejudice to excuse the procedural default of this IAC
claim, and further argues that the district court erred by
failing to grant an evidentiary hearing before denying it. “A
claim is procedurally defaulted if it was rejected by the state
courts based on ‘independent’ and ‘adequate’ state procedural
grounds.” Rodney, 916 F.3d at 1259 (citing Coleman v.
Thompson, 501 U.S. 722, 729–32 (1991)). Because the
Nevada Supreme Court rejected Claim Four as untimely and
22                          SMITH V. BAKER

successive pursuant to state law, we may not review it unless
Smith demonstrates cause to excuse the default and actual
prejudice resulting from a violation of federal law. See id.
Specifically, Smith must show:

            (1) the claim of “ineffective assistance of trial
            counsel” was a “substantial” claim; (2) the
            “cause” consisted of there being “no counsel”
            or only “ineffective” counsel during the
            state collateral review proceeding; (3) the
            state collateral review proceeding was
            the “initial” review proceeding in respect to
            the “ineffective-assistance-of-trial-counsel
            claim”; and (4) state law requires that an
            “ineffective assistance of trial counsel [claim]
            . . . be raised in an initial-review collateral
            proceeding.

Trevino v. Thaler, 569 U.S. 413, 423 (2013) (emphasis
omitted) (quoting Martinez, 566 U.S. at 12–22).

    We first address Smith’s contention that he was entitled
to an evidentiary hearing. See Tapia v. Roe, 189 F.3d 1052,
1058 (9th Cir. 1999) (reviewing a district court’s refusal to
hold an evidentiary hearing for abuse of discretion). Smith
must allege a colorable claim for relief on his IAC claim in
order to obtain a remand for an evidentiary hearing. West v.
Ryan, 608 F.3d 477, 485 (9th Cir. 2010). The district court
allowed Smith to submit the mental health declarations his
lawyers obtained in 2007 and the court explicitly considered
this extra-record evidence in its order dismissing Smith’s
Martinez claim.1

     1
         Cf. Cullen v. Pinholster, 563 U.S. 170, 181–82 (2011).
                      SMITH V. BAKER                        23

    Smith fails to demonstrate what additional factual
development would be possible at an evidentiary hearing. He
argues that his experts would be allowed to further explain
their opinions at a hearing, but they would also be subject to
cross examination. Neither of his experts had an opportunity
to conduct testing and only one of them interviewed Smith.
If an evidentiary hearing were held, the State would be
permitted to cross-examine Smith’s experts and introduce
expert testimony of its own. Accordingly, we conclude that
Smith has not shown that he was prejudiced by the lack of an
evidentiary hearing, and the district court did not abuse its
discretion by dismissing the Martinez claim without holding
one.

    Turning to Martinez Step One, Smith must demonstrate
that his “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. Smith argues that the claim his penalty-phase
lawyers were ineffective is “substantial” because trial counsel
failed to investigate or present information regarding his
history of mental illness. Smith asserts that his lawyers’
penalty-phase investigation consisted solely of interviewing
a few family members on the day they were scheduled to
testify and presenting brief testimony regarding Smith’s good
character. He contends that no effort was taken to investigate
mental health issues, and that testimony from mental health
experts would have explained his actions. Because no
alternate defense theory was aggressively pursued, Smith
argues that the failure to provide any explanation for the
crimes gave the jury no reason to impose a life sentence.

   The State responds that introducing Smith’s experts’
declarations at the penalty phase would have been tantamount
24                    SMITH V. BAKER

to ineffective assistance of counsel because it would have
painted Smith as a con man and torpedoed his defense. In the
State’s view, the 1992 competency assessment was “both
broad and deep.” It was also the only evaluation that
included psychometric testing. The State acknowledges the
competency assessment showed elevated scales for antisocial
behavior and grandiosity with manic tendencies, but stresses
that the competency assessment concluded Smith exhibited
no acute or Axis I mental disorders and had no serious
cognitive or affective psychological disorder. In short, the
State argues that Smith was not prejudiced by the failure to
present other mental health evidence.

      The standard for showing a claim is “substantial” is
comparable to the standard for granting a certificate of
appealability pursuant to 28 U.S.C. § 2253(c)(2); a petitioner
“need show only that ‘jurists of reason could disagree with
the district court’s resolution of his constitutional claims
. . . .’” Runningeagle, 825 F.3d at 983 n.14 (quoting Miller-
El, 537 U.S. at 327). Proving the merits of an IAC claim
requires showing that: (1) “counsel’s representation fell
below an objective standard of reasonableness . . . under
prevailing professional norms”; and (2) “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Rodney,
916 F.3d at 1260 (quoting Strickland, 466 U.S. at 688, 694).

       1. Strickland Prong One

    With respect to the first Strickland prong, deficient
performance is performance that falls “below an objective
standard of reasonableness” and is outside of “the range of
competence demanded of attorneys in criminal cases.”
Strickland, 466 U.S. at 687–88 (quoting McMann v.
                       SMITH V. BAKER                          25

Richardson, 397 U.S. 759, 771 (1970)). The objective
measure of counsel’s performance is determined by looking
at the “reasonableness under prevailing professional norms.”
Id. at 688. Professional norms are measured at the time of
counsel’s actions rather than by reference to modern norms.
See Cullen v. Pinholster, 563 U.S. 170, 196 (2011). This
assessment is made “from counsel’s perspective at the time,”
so as “to eliminate the distorting effects of hindsight.”
Strickland, 466 U.S. at 689. We “defer to a lawyer’s strategic
trial choices, [but] those choices must have been made after
counsel [ ] conducted reasonable investigations or [made] a
reasonable decision that ma[de] particular investigations
unnecessary.” Summerlin v. Schriro, 427 F.3d 623, 630 (9th
Cir. 2005) (quoting Strickland, 466 U.S. at 691).

    During the April 1996 second penalty hearing, counsel
based Smith’s sentencing argument on character evidence
very similar to the evidence presented at the first trial, and did
not arrange or request a mental health evaluation of Smith.
Smith’s first-chair counsel at the second penalty hearing,
Donald York Evans, acknowledged in a 2007 declaration
filed with Smith’s federal habeas petition that Smith was “an
interesting case, psychologically,” and that when he first met
Smith, Evans “wanted to do a complete psychological work-
up on him.” Evans admitted that he “did not press the issue”
because Smith declined to submit to testing and Evans
“wasn’t confident that [he] would get anything [he] could use
from an evaluation anyway.” Evans “suspected [Smith] had
schizoid tendencies and a high IQ but that was just [his] guess
and [Smith] wouldn’t participate in an evaluation.” State
habeas counsel’s 2002 interview of second-chair counsel,
Peter LaPorta, was consistent. Asked whether “there [was]
anything else that [counsel felt] should have been done for
[Smith’s] second penalty phase” LaPorta responded, “[Y]es,
26                    SMITH V. BAKER

to put it succinctly. I was very uncomfortable with the
background information that [had been] developed on the
family and the family history, military history, educational
history, any psychological history.”

    We agree with Smith that the performance of his second
penalty-phase counsel was deficient. This is not a case in
which counsel chose not to pursue mental health mitigation
evidence because there were other defense theories to pursue;
indeed, the presentation made on Smith’s behalf at the second
penalty phase was exceptionally sparse. The transcript
reflects only about twenty-five pages of testimony from three
family members and three family friends who testified about
Smith’s character and his relationship with his family, even
though red flags regarding Smith’s mental health were raised
in the pre-trial competency assessment and by his behavior
before and during trial. It was incumbent upon counsel to
investigate Smith’s mental health even though Smith denied
mental illness. The record shows that Smith’s lawyers did
not conduct an investigation to ascertain the extent of any
possible mental impairment, or to determine whether mental
health could have been raised as a mitigating factor at
sentencing. Counsel concluded that any psychological
assessment performed without Smith’s cooperation would be
of little or no value, but one of the two expert declarations
filed on Smith’s behalf in 2007 was prepared solely based on
the expert’s review of the record. If nothing else, a
comparable report could have been prepared at the time of the
sentencing without Smith’s participation. The applicable
American Bar Association (ABA) guidelines made clear that
“[t]he investigation for preparation of the sentencing phase
. . . should comprise efforts to discover all reasonably
available mitigating evidence.” ABA Guidelines 11.4.1(C)
(1989). The ABA guidelines further specified that counsel
                       SMITH V. BAKER                        27

should collect a medical history (including “mental and
physical illness”) and investigate a defendant’s social history
in preparation for the penalty phase. Id. 11.4.1(2)(C). On the
record before us, we do not hesitate to conclude that the
failure to investigate Smith’s mental health history
contravened the ABA guidelines.

     We have said that “strategic choices made after less than
complete investigation are reasonable precisely to the extent
that reasonable professional judgments support the limitations
on investigation.” Wiggins v. Smith, 539 U.S. 510, 521
(2003) (quoting Strickland, 466 U.S. at 690–91). Smith’s
counsel had good reason to be concerned about Smith’s
mental state yet they acknowledged that they did not try to
obtain a psychiatric report, apparently because Smith
objected. We do not minimize the difficulty presented by
Smith’s failure to cooperate, but Smith had no other viable
defense and his inability to recognize that and submit to a
mental health evaluation may well have been another
indicator of a mental health disorder. The failure to pursue
mental health mitigation evidence “ignored pertinent avenues
for investigation of which [counsel] should have been aware.”
Porter v. McCollum, 558 U.S. 30, 40 (2009) (per curiam).
The record does not demonstrate that counsel’s failure to
investigate was strategic. No alternate mitigation evidence or
argument was proffered to the jury, despite what appears to
be agreement among Smith’s attorneys that he may have
suffered from some sort of mental illness. See Evans v.
Lewis, 855 F.2d 631, 637 (9th Cir. 1988) (“Counsel’s failure
to investigate [a petitioner’s] mental condition[, despite prior
notice,] cannot be construed as a trial tactic.”); see also
Hendricks v. Calderon, 70 F.3d 1032, 1043 (9th Cir. 1995)
(“[W]here counsel is on notice that his client may be mentally
impaired, counsel’s failure to investigate his client’s mental
28                     SMITH V. BAKER

condition as a mitigating factor in a penalty phase hearing,
without a supporting strategic reason, constitutes deficient
performance.”).

     Our concurring colleague concludes that Smith’s
counsel’s performance was not deficient, cautioning that
counsel’s performance must not be judged with hindsight.
Concurrence at 46–47. We do not doubt this rule, but in our
view it is the concurrence that misapplies it. By conflating
Strickland’s prongs one and two, the concurring opinion
decides that it was permissible to forgo a psychological
evaluation because, without Smith’s cooperation, his lawyers
guessed that a psychological assessment would be of “no
value.” Concurrence at 49–51. There is no question that
Smith’s failure to cooperate with a psychological evaluation
would have hindered any effort to muster persuasive
mitigating evidence for the second penalty phase, but this
comes into play at Strickland step two, when we consider
whether counsel’s deficient performance resulted in
prejudice. At step one, we consider whether Smith’s lawyers’
performance fell below an objectively reasonable standard,
and that question is largely a function of the choices that were
available to counsel. Here, we consider the questions raised
by Smith’s pre-trial competency evaluation and by counsel’s
own observations of Smith’s behavior; Smith’s persistent
failure to recognize the implausibility of his trial testimony;
his concerning trial conduct; and the fact that there was
almost nothing else to offer in defense of the death penalty.
On this record, it was unreasonable to forgo a psychological
evaluation merely because Smith had confidence in his own
mental health and counsel assumed an assessment would be
of little value. Indeed, it is easy to imagine that a defendant’s
insistence that he is not ill may be a symptom of mental
illness. The out-of-circuit cases the concurring opinion cites
                      SMITH V. BAKER                       29

are not to the contrary. See, e.g., Coleman v. Mitchell,
244 F.3d 533, 544–46 (6th Cir. 2001) (distinguishing cases in
which the failure to investigate and present mitigating
evidence constituted ineffective assistance, because defendant
served as co-counsel and instructed counsel to pursue an
alternate strategy); Johnston v. Singletary, 162 F.3d 630, 642
(11th Cir. 1998) (per curiam) (concluding that counsel’s
decision to forgo psychiatric testimony was strategic where
defendant refused to cooperate and his medical records
contained substantial data regarding his criminal history).

   We conclude that Smith satisfied his burden of
demonstrating a “substantial” argument that his second
penalty-phase counsel’s performance was deficient.

       2. Strickland Prong Two

    The second Strickland prong requires that Smith show “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. The State argues that
even if Smith had presented evidence to the jury showing he
suffered from grandiose delusions as a result of his mixed
personality disorder, this mitigation evidence would have
paled in comparison to his vicious attack on his wife and
step-daughters. The Supreme Court has cautioned that this
type of evidence “is [] by no means clearly mitigating, as the
jury might have concluded that [the defendant] was simply
beyond rehabilitation.” Cullen, 563 U.S. at 201. Moreover,
in this case, testimony from a mental health expert would
have opened the door to rebuttal from a State expert witness.
See id. In light of the extraordinarily brutal nature of the
murders, Smith has not shown that reasonable jurists would
30                    SMITH V. BAKER

debate whether the result of Smith’s proceeding would have
been different if mitigation evidence had been pursued.

    Our conclusion on this point is heavily influenced by
Smith’s failure to submit to a psychiatric evaluation at the
time of the penalty phase, and by the fact that only limited
evaluations could have been prepared without Smith’s
cooperation. Without the ability to conduct psychometric
testing and prepare detailed in-depth personal interviews with
Smith, any expert’s opinion would have been compromised
and necessarily vulnerable to cross examination.

    To support his federal petition, Smith relies on the
opinions of Dr. Paula Lundberg-Love and Dr. Richard
Dudley to argue that counsel failed to investigate, develop,
and present mitigating mental health evidence. These experts
connected Smith’s “delusional thinking” with his long history
of get-rich-quick schemes and fraudulent dealings. For
example, Dr. Lundberg-Love attributed Smith’s extensive
history of fraudulent schemes to his delusions and “inflated
sense of self-worth.” She also juxtaposed Smith’s numerous
fraudulent schemes, ranging from real estate deals to
gemstone trading to check fraud, with his incredulous
protestations of innocence and claims that he had been set up
at every turn. Dr. Lundberg-Love noted that despite Smith’s
obviously precarious financial situation, he negotiated a
contract for the home in which the murders took place.
Among her conclusions, Dr. Lundberg-Love determined that
Smith had “persistent false beliefs” relating to these schemes,
and that he had “exclusive insight or interpretation[s] of the
facts that will free him from his predicament.” Dr. Lundberg-
Love concluded that Smith’s schemes and plans, in light of
the clear facts that he “never had sufficient resources to
                       SMITH V. BAKER                         31

execute” them, “support[] the diagnosis of delusional
disorder.”

    Dr. Dudley, who examined Smith in prison, reached
similar conclusions. Dr. Dudley explained that, when he met
Smith, “it was clear that he is extremely bright,” but he
“evidenced both a level of paranoid thinking and grandiosity
that compromised his . . . decision-making capabilities and
judgment.” He determined that Smith’s “grandiosity”
included “pursuing big real estate deals while he had no
assets, and he apparently did not succeed in any legitimate
deals.” Like Dr. Lundberg-Love, Dr. Dudley connected
Smith’s grandiose thinking to his decision to move his family
into a mansion “despite the fact that his checking account had
been closed for too many overdrafts, and despite him not
having any means to pay the pending mortgage debt against
the house.”

    Contrary to Smith’s protestations that the information
related to his mental health has “long [been] recognized as
mitigating,” this evidence is not “clearly mitigating.” First,
though it demonstrates Smith’s grandiosity, it focuses
extensively on Smith’s unlawful schemes. For example, in
one fraud detailed in Dr. Lundberg-Love’s report, Smith
offered handyman and remodeling services for a fee to
homeowners, then disappeared after receiving money for the
services. When confronted, Smith represented to the
homeowners that “the freight lines stole the cabinets he
ordered, and he [had to] travel[] to try to obtain the cabinets.”
Ultimately, Smith never returned to finish the remodel, and
the homeowners lost the money they entrusted to Smith. In
another scheme, Smith and his brother, Harold, “fronted
money to homeowners in foreclosure,” and, in return,
“required that the homeowners provide . . . their deed as
32                     SMITH V. BAKER

security.” Smith and his brother then pocketed the
homeowners’ mortgage payments, never applied the
payments to the mortgage, and sold the property to third
parties. Dr. Lundberg-Love’s and Dr. Dudley’s reports
detailed other schemes in which Smith attempted to obtain
loans on real property with forged deeds, attempted to sell
property with forged deeds, and attempted to trade “valuable”
amethysts (which were of little value) for real estate in Texas.
Thus, while there is a chance the evidence “may have served
to evoke sympathy for Smith or cast his culpability for the
murders in a different light,” there is an equal chance the jury
would have decided that this evidence confirmed that Smith
was a habitual fraudster who “was simply beyond
rehabilitation.” Cullen, 563 U.S. at 201.

     The experts focused on Smith’s delusional protestations
of innocence, but these statements were not “clearly
mitigating” because they underscored that Smith was willing
to relate utterly implausible tales, as he did before the jury at
trial. For example, Dr. Lundberg-Love attested, “In this case
Mr. Smith’s note indicated several intruders murdered his
wife and stepchildren and that he killed one of the intruders.
The only bodies found were those of his wife and step-
children. As unbelievable as this recitation appeared, Mr.
Smith persisted in relating these facts to the jury. . . . His
delusional disorder compelled him to go forward as he did in
his testimony, even though part of his story was contradicted
by reality.” We cannot conclude there is a reasonable
probability that the expert declarations, prepared with little or
no cooperation from Smith, and without the benefit of
thorough testing and an opportunity for full evaluation, would
have changed the outcome of Smith’s penalty phase. See id.
at 202.
                       SMITH V. BAKER                         33

    Smith also argues that counsel spent only a few minutes
preparing his mitigation witnesses prior to their testimony.
But Smith glosses over the fact that Evans traveled to Los
Angeles prior to trial and attempted to meet with Smith’s
brother. Smith’s brother did not appear at the meeting and
later refused to meet with Evans. Additionally, Smith’s
brother, mother, and father “were scheduled to testify at the
penalty hearing, but on the day of their scheduled testimony,”
they did not appear. After a number of “frantic calls to the
family, they appeared at court the next morning.” As a result,
Evans “did not get to meet with [Smith’s] mom and dad until
just before they testified.” Finally, Smith fails to identify any
additional mitigation evidence that could or would have been
provided by family members if additional time had been
invested. Because Smith did not meet his burden at
Strickland Step Two, the district court did not err by ruling
that Smith’s ineffective assistance of counsel claim was
procedurally defaulted.

    B. Claim Eight—Stromberg Error

    Smith’s § 2254 petition argues that because the Nevada
Supreme Court invalidated the trial court’s depravity of mind
instructions in Smith I and Smith II, Smith II’s affirmance of
the death penalty for Wendy’s murder was contrary to the
clearly established federal law set forth in Stromberg v.
California, 283 U.S. 359 (1931). Stromberg held that a
verdict is subject to challenge if a jury, presented with
alternative theories of guilt, may have relied on an
unconstitutional theory to reach its verdict. Id. at 367–68.
Smith argues that it is unclear whether twelve jurors
unanimously found “mutilation” to support the statutory
aggravator because some of them may have relied solely on
34                     SMITH V. BAKER

the invalid depravity-of-mind theory. If so, Smith argues, his
death sentence contravenes Stromberg.

     The State argued in federal court that Smith’s Stromberg
claim was procedurally defaulted. The district court
disagreed, but it denied this claim on its merits. The district
court concluded that any error in the depravity jury
instruction was harmless because there was “strong
indication” the jury unanimously agreed on the mutilation
theory. On appeal to our court, the State abandoned its
procedural default argument. The State conceded this waiver
in its argument before our court, so we address the merits of
Smith’s Stromberg claim. See United States v. Pridgette,
831 F.3d 1253, 1259 (9th Cir. 2016).

    To be eligible for the death penalty, Nevada law required
Smith’s second penalty-phase jury to find at least one
aggravating circumstance that was not outweighed by any
mitigating circumstances. Nev. Rev. Stat. § 175.554. The
single aggravating circumstance alleged in Smith’s case was
that “the murder involved torture, depravity of mind or the
mutilation of the victim.” See Nev. Rev. Stat. § 200.033(8).
The trial court instructed the first penalty jury that depravity
of mind required:

       an inherent deficiency of moral sense and
       rectitude. It consists of evil, corrupt and
       perverted intent which is devoid of regard for
       human dignity and which is indifferent to
       human life. It is a state of mind outrageously,
       wantonly vile, horrible or inhuman.

In Smith I, the Nevada Supreme Court concluded that this
depravity instruction was unconstitutionally vague. 881 P.2d
                      SMITH V. BAKER                       35

at 655–56. The court explained that its opinion in Robins v.
State, 798 P.2d 558 (Nev. 1990) had addressed the
constitutionality of the very same depravity-of-mind
instruction, and found it deficient. Robins relied on Godfrey
v. Georgia, 446 U.S. 420 (1980) to rule that the depravity
instruction required “torture, mutilation or other serious and
depraved physical abuse beyond the act of killing itself, as a
qualifying requirement to an aggravating circumstance based
in part upon depravity of mind.” Robins, 798 P.2d at 629.
The Nevada Supreme Court reiterated the same requirement
in Libby v. State, 859 P.2d 1050, 1058 (Nev. 1993).

    Smith I concluded that the depravity instruction given in
Smith’s first penalty hearing was unconstitutionally vague
because “the jury was not instructed that depravity of mind
must include torture, mutilation or other serious and depraved
physical abuse beyond the act of killing itself.” 881 P.2d
at 655. Smith I also acknowledged a unanimity problem was
presented by the possibility that some of Smith’s jurors may
have relied on the infirm instruction to impose the death
penalty. Id. Because the special verdict form did not require
that the jury separately consider depravity, or torture, or
mutilation; the court observed, “the jury in the instant case
found in the disjunctive torture, depravity of mind, or
mutilation and did not specify which of the three it found. It
therefore might well have based its finding of the aggravating
circumstance on depravity of mind.” Id. The court further
observed that because the jury found no other aggravating
circumstances, it could not “reweigh the aggravating and
mitigating evidence” to determine whether this error was
harmless. Id at 656. The court vacated the two death
sentences and remanded for a second penalty-phase hearing.
Id.
36                     SMITH V. BAKER

     The second jury was instructed:

        You are instructed that the following factors
        are circumstances by which Murder of the
        First Degree may be aggravated:

        The murder involved torture, depravity of
        mind or the mutilation of the victim.

        The State is alleging depravity of mind in the
        murder of Kristy Cox [the twelve-year-old].

        The State is alleging torture or depravity of
        mind or mutilation in the murder of Wendy
        Cox [the twenty-year-old].

The trial court gave the second jury the same depravity-of-
mind instruction that Smith I had declared unconstitutionally
vague, Instruction 10, and added Instruction 11 to further
define depravity of mind. Instruction 11 premised depravity
of mind on the undefined phrase, “serious and depraved
physical abuse”:

        In order to find either torture or mutilation of
        a victim you must find that there was torture
        or mutilation beyond the act of killing itself.

        In order to find depravity of mind you must
        find serious and depraved physical abuse
        beyond the act of killing itself.

The court separately defined “torture” and “mutilate” in
Instructions 9 and 12, but it did not further define the “serious
and depraved physical abuse” required for depravity of mind.
                       SMITH V. BAKER                         37

    The trial court instructed the second jury: “you must be
unanimous in your finding as to the aggravating
circumstance,” but it did not instruct the jury that it had to be
unanimous as to the underlying theory supporting the
aggravating circumstance (torture, mutilation, or depravity of
mind). During defense counsel’s closing argument, the trial
court interrupted counsel to stress that there was only one
statutory aggravating circumstance alleged, and that it had
three subparts:

        to the extent that Mr. Evans is saying that
        there may be some confusion as to whether
        there is one aggravating circumstance or more
        than one, he’s absolutely correct; there is only
        one aggravating circumstance that is alleged
        by the State in this case, and that is composed
        of the subparts mutilation, torture or depravity
        of mind. I’m going to correct what is a fairly
        broad instruction, which is Instruction
        Number 7, to specifically say, “The State has
        alleged that an aggravating circumstance is
        present in this case,” so there can be no doubt
        that it is one aggravating circumstance with
        three subparts. One of those subparts is
        related to one of the victims or is alleged by
        the State with reference to one of the victims,
        all three of the subparts are alleged with
        reference to the other victim; but it is only one
        total aggravating circumstance.

Smith II, 953 P.2d at 266 n.4. In its closing, the prosecution
argued to the second jury that “if . . . you are satisfied beyond
a reasonable doubt that an aggravating factor exists, and it
doesn’t have to be all of the parts of the circumstance, it can
38                     SMITH V. BAKER

be one, in the case of Kristy, or one or two or three in the case
of Wendy[.]” The second jury found “depravity of mind” as
to Kristy’s murder, and “depravity of mind” and “mutilation”
for Wendy’s murder, and it reimposed the death penalty for
both murders.

    Smith challenged Instructions 10 and 11 on direct appeal
from the second sentencing hearing, and Smith II invalidated
the depravity instructions again. The Nevada Supreme Court
observed “[s]ince Robins, this court has upheld sentences of
death based on depravity of mind only where there has been
evidence of mutilation or of torture.” Id. at 266. The court
explained that to the extent “Smith I may have created some
confusion on the issue, depravity of mind, as an aggravator,
may only be relied upon where evidence of torture or
mutilation exists.” Id. at 266 n.3. Smith II held that “jury
instruction [11] is a departure from what this court has
previously determined is constitutionally acceptable,” i.e., it
did not conform to the standard the Nevada Supreme Court
adopted in Robins. Id. at 267.

    Because the second jury had “no guidance” as to what
constituted “serious and depraved physical abuse,” Smith II
concluded “the jury instruction on depravity of mind failed to
properly channel the jury’s discretion in connection with the
charges [] stemming from Kristy’s death. An aggravating
circumstance based on depravity of mind must include torture
or mutilation beyond the act of killing itself.” Id. at 267
(citations omitted). For Kristy’s murder, depravity of mind
was the State’s sole theory supporting a death-eligible
aggravator. Accordingly, the Nevada Supreme Court
reversed the death sentence imposed for Kristy’s murder and
imposed a sentence of life imprisonment without the
possibility of parole. Id.
                      SMITH V. BAKER                       39

    This ruling left the aggravating circumstance in Wendy’s
murder as the sole support for the death penalty. The second
jury checked boxes next to “depravity of mind” and
“mutilation” for Wendy’s murder, and the Nevada Supreme
Court affirmed the death penalty based on the jury’s finding
of mutilation in Wendy’s case. The court concluded that the
instructions for mutilation were constitutionally sound and
that sufficient evidence supported the finding, beyond a
reasonable doubt, that Wendy’s murder involved mutilation.
Id. at 267–68. The court did not address whether there was
indication that the jury unanimously decided upon mutilation.

   C. Stromberg Error

    Smith argues that the Nevada Supreme Court’s decision
to uphold the death verdict for Wendy’s murder was contrary
to clearly established federal law because it was impossible
to tell whether the jury unanimously found mutilation. Nev.
Rev. Stat. § 200.033(8). The State responds that the
depravity instruction was constitutionally sound under federal
law, and that the rule the Nevada Supreme Court set forth in
Robins is a state law requirement that is immaterial to relief
under § 2254(d).

    A conviction is subject to challenge where a jury was
instructed on alternative theories of guilt and it may have
relied on an invalid one. Hedgpeth v. Pulido, 555 U.S. 57, 58
(2008) (per curiam) (citing Stromberg v. California, 283 U.S.
359 (1931)). In Hedgpeth, the Supreme Court observed that
Yates v. United States, 354 U.S. 298 (1957) extended
Stromberg’s rule to convictions based on multiple theories of
guilt where it is shown that one of the prosecution’s theories
was not unconstitutional but was legally flawed. See
Hedgpeth, 555 U.S. at 60. Such is the case here. In Smith II,
40                    SMITH V. BAKER

the Nevada Supreme Court invalidated the depravity-of-mind
instructions used at Smith’s second penalty hearing, and we
do not second-guess that determination. Smith II, 953 P.2d at
267; see Estelle v. McGuire, 502 U.S. 62, 68 (1991)
(observing “it is not the province of a federal habeas court to
reexamine state-court determinations on state-law
questions”). The State’s argument that the depravity-of-mind
instructions comported with federal law amounts to
disagreement with the degree of specificity the Nevada
Supreme Court requires for its statutory aggravator. The
State fails to explain why we would question the Nevada
Supreme Court’s state law requirement.

    The jury was not instructed that it must agree on which of
the three underlying theories supported the statutory
aggravator, or that, per Robins, it must find evidence of
mutilation or torture to find depravity of mind. We can see
no other clues in the record—such as jury polling—indicating
whether the jury unanimously agreed on mutilation. From the
jury’s check marks next to “depravity” and “mutilation” on
the special verdict form pertaining to Wendy’s murder, it is
impossible to tell whether the jury split their votes between
the invalid depravity theory and the valid mutilation theory.
We therefore conclude that Smith demonstrated Stromberg
error. See Hedgpeth, 555 U.S. at 58.

    In Valerio v. Crawford, an en banc panel of our court
reviewed a jury’s death verdict premised on two statutory
aggravators, one unconstitutionally vague and one
permissible. 306 F.3d 742, 759 (9th Cir. 2002) (en banc).
Our en banc court ruled that “[a] state appellate court cannot
‘affirm a [trial] court without a thorough analysis of the role
an invalid aggravating factor played in the sentencing
process.’” Id. (quoting Stringer v. Black, 503 U.S. 222, 230
                      SMITH V. BAKER                        41

(1992)). The court announced three avenues by which a state
appellate court can engage in close appellate scrutiny of an
invalid aggravator and affirm imposition of the death penalty.
Id. First, a state appellate court may affirm by finding the
error harmless under the standard set forth in Chapman v.
California, 386 U.S. 18 (1967). Valerio, 306 F.3d at 756. To
do so, the state appellate court must conclude, beyond a
reasonable doubt, that the same result would have been
obtained without relying on the invalid aggravator. Id. Here,
the State conceded at oral argument before our court, that
Smith II did not engage in a Chapman harmless error
analysis.

    Valerio’s second method for affirming a death verdict
where a jury may have relied on an invalid aggravator
instruction is to re-weigh the aggravating and mitigating
evidence pursuant to Clemons v. Mississippi, 494 U.S. 738
(1990). Valerio, 306 F.3d at 757. Clemons described that a
state appellate court may set aside an invalid aggravator and
re-weigh the remaining aggravating and mitigating factors to
determine whether an invalid instruction was harmless. Id.
But it is clear the Smith II court did not re-weigh aggravating
and mitigating evidence because Nev. Rev. Stat. § 200.033(8)
was the single aggravating circumstance alleged in Smith’s
case.

    Valerio’s third proffered method is a Walton analysis, see
Walton v. Arizona, 497 U.S. 639 (1990), in which a state
appellate court “act[s] as a primary factfinder” by applying a
corrected instruction to the evidence and determining de novo
whether the state’s evidence satisfied the aggravator. Valerio,
306 F.3d at 757. This option was also unavailable in Smith’s
case because, as we explained in Valerio, a state appellate
42                     SMITH V. BAKER

court may not undertake a Walton analysis if the penalty-
phase factfinder was a jury. Id. at 758.

    The Nevada Supreme Court failed to undertake any of the
options explained in Valerio, so there is no question that it did
not engage in close appellate scrutiny of the invalid depravity
instructions used at Smith’s second penalty hearing. Instead,
the state court relied on its conclusion that the evidence was
sufficient to support the mutilation theory. Smith II, 953 P.2d
at 267–68. But as the court recognized in Smith I, 881 P.2d
at 655, sufficiency of the evidence is not the issue; Smith’s
argument is that the jury may not have been unanimous.

    Valerio held that the resulting Stromberg error is not
structural, so we do not assume prejudice. Rather, we assess
the effect of the invalid depravity instructions and resulting
Stromberg error under the harmless error standard set forth in
Brecht v. Abrahamson, 507 U.S. 619 (1993). See Hedgpeth,
555 U.S. at 61–62 (concluding that a Brecht harmless error
analysis is appropriate where the jury was instructed on
alternative theories of guilt and may have relied on an invalid
one); Valerio, 306 F.3d at 760–61.

    Brecht’s harmlessness test asks whether we are left with
“grave doubt” about whether “the actual instruction had a
‘substantial and injurious effect or influence’ on the jury’s
verdict, in comparison to what the verdict would have been
if the narrowed instruction had been given.” Valerio,
306 F.3d at 762; see also Hedgpeth, 555 U.S. at 58. As the
Nevada Supreme Court stated in Smith II, the narrowed
construction of depravity of mind based on Nev. Rev. Stat.
§ 200.033(8) “requir[es] torture, mutilation or other serious
and depraved physical abuse beyond the act of killing itself,
as a qualifying requirement to an aggravating circumstance
                          SMITH V. BAKER                              43

based in part upon depravity of mind.” Smith II, 953 P.2d
at 266 (quoting Robins, 798 P.2d at 570). We therefore
compare the result obtained with Instructions 10 and 11
against “what the verdict would have been if the [Robins]
instruction had been given.” Valerio, 306 F.3d at 762.

    The juxtaposition of the evidence pertaining to Kristy’s
murder and the evidence pertaining to Wendy’s murder leads
us to conclude that the invalid instruction did not have a
substantial and injurious effect on the jury’s verdict. The
second jury heard the medical examiner’s testimony about the
extent of both of the murdered step-daughters’ wounds. The
medical examiner explained that Kristy, age twelve, suffered
four wounds—three to the head, and one to the neck—and
that there was a laceration on her finger. The medical
examiner then moved on to Wendy’s much more substantial
injuries, and told the jury that Wendy suffered thirty-two
blunt-force wounds to her head (including skull fractures),
and that the extensive wounds Wendy suffered demonstrated
that she fought for her life. The examiner testified that
Wendy’s wounds appeared to have been inflicted with the
claw end of a hammer, and that her left ear was nearly cut in
two. The examiner found prominent abrasions on Wendy’s
neck, and that she had defensive wounds on her hands.
Despite these brutal injuries, the actual cause of Wendy’s
death was strangulation. The medical examiner opined that
Smith likely used hammer blows to subdue his victims and
then strangled them to death.2


    2
      On appeal, the State argued there was “overwhelming evidence” of
mutilation because Wendy was attacked with the claw end of a hammer.
The State overlooks that the jury was instructed that, under Nevada law,
mutilate “means to cut off or permanently destroy a limb or essential part
of the body or to cut off or alter radically so as to make imperfect,” and
44                         SMITH V. BAKER

    The numerous blunt-force wounds that fractured Wendy’s
skull, coupled with the medical examiner’s testimony that a
large laceration inside her ear almost cut her outer ear in two,
do not leave us with grave doubt about whether the jury
would have unanimously found mutilation. Photos and the
medical examiner’s testimony graphically illustrated that the
wounds Wendy suffered radically altered essential parts of
her body, and we are confident the invalid instruction did not
have a substantial and injurious effect on the jury’s verdict.

                            V. Conclusion

    Smith persuasively argued that the performance of his
second penalty-phase counsel was deficient for failing to
investigate mental health mitigation evidence, but he has not
shown that he was prejudiced. This claim was defaulted.
Separately, we conclude that the Stromberg error in Smith’s
jury instructions was harmless under Brecht. We decline to
grant a Certificate of Appealability for any of the other claims
Smith briefed, and affirm the district court’s judgment.

     AFFIRMED.




that “to find . . . mutilation of a victim you must find that there was . . .
mutilation beyond the act of killing itself.” In other words, it was the
extent of Wendy’s injuries that determined whether mutilation applied, not
the means used to injure her.
                          SMITH V. BAKER                    45

N.R. SMITH, Circuit Judge, concurring:

     The district court’s order dismissing Joseph Smith’s
federal habeas petition should be affirmed. The majority got
it right in: (1) finding that Smith failed to show he was
prejudiced by the lack of an evidentiary hearing, and
concluding that the district court did not abuse its discretion
by dismissing his Martinez1 claim without holding an
evidentiary hearing; (2) certifying Smith’s eighth claim,
which alleges a violation of the rule set out in Stromberg v.
California, 283 U.S. 359 (1931), and concluding that the
Stromberg error in Smith’s jury instruction was harmless; and
(3) declining to certify Smith’s remaining uncertified claims.

    The district court’s judgment dismissing Smith’s
ineffective assistance of counsel (“IAC”) claim as
procedurally barred should also be affirmed. However, I
arrive at that conclusion via a different route than the
majority. Unlike the majority, I believe Smith’s counsel’s
performance during the second penalty-phase hearing was not
deficient under the first prong of Strickland v. Washington,
466 U.S. 668 (1984), and therefore find his IAC claim
insubstantial. I write separately to address this point.

    To establish cause and prejudice to excuse the procedural
default of his IAC claim, Smith must show, inter alia, that:
“(1) the claim of ‘ineffective assistance of trial counsel’ was
a ‘substantial’ claim; [and] (2) the ‘cause’ consisted of there
being ‘no counsel’ or only ‘ineffective’ counsel during the
state collateral review proceeding.” Trevino v. Thaler,
569 U.S. 413, 423 (2013) (quoting Martinez, 566 U.S.
at 13–18).

   1
       Martinez v. Ryan, 566 U.S. 1 (2012).
46                    SMITH V. BAKER

     With respect to Martinez Step One, Smith must
“demonstrate that the underlying ineffective-assistance-of-
trial-counsel claim is a substantial one, which is to say that
the prisoner must demonstrate that the claim has some merit.”
Martinez, 566 U.S. at 14. To establish the merits of an IAC
claim, “[t]he Strickland standard requires a showing of both
deficient performance and prejudice.” Rodney v. Filson,
916 F.3d 1254, 1260 (9th Cir. 2019) (citing Strickland,
466 U.S. at 687).

                              A.

    Deficient performance under Strickland is performance
that falls “below an objective standard of reasonableness.”
466 U.S. at 688. “In any case presenting an ineffectiveness
claim, the performance inquiry must be whether counsel’s
assistance was reasonable considering all the circumstances.”
Id. (emphasis added). Although “[p]revailing norms of
practice as reflected in American Bar Association standards”
may serve as “guides to determining what is reasonable, . . .
they are only guides.” Id. This is so, because no standards or
set of rules “can satisfactorily take account of the variety of
circumstances faced by defense counsel or the range of
legitimate decisions regarding how best to represent a
criminal defendant.” Id. at 688–89.

    Our “scrutiny of counsel’s performance must be highly
deferential,” because “[i]t is all too tempting for a defendant
to second-guess counsel’s assistance after . . . [an] adverse
sentence, and it is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to
conclude that a particular act or omission of counsel was
unreasonable.” Id. at 689. Thus, “[a] fair assessment of
attorney performance requires that every effort be made to
                       SMITH V. BAKER                          47

eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time.”
Id. Because of the difficulty in conducting this evaluation, we
“must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional
assistance.” Id.; see Cullen v. Pinholster, 563 U.S. 170, 196
(2011) (noting that “Strickland specifically commands that a
court ‘must indulge [the] strong presumption’ that counsel
‘made all significant decisions in the exercise of reasonable
professional judgment’” (alteration in original) (quoting
Strickland, 466 U.S. at 689–90)).

   Smith argues, and the majority agrees, that Smith’s
counsel’s performance during the second penalty-phase
hearing was deficient, because counsel failed to investigate
Smith’s mental health and retain an expert to opine thereon.
Opinion at 26–29. I disagree.

    The majority correctly notes that counsel’s argument at
the April 1996 penalty hearing was predicated on character
evidence similar to that presented at the first trial, and counsel
did not arrange or request a mental health evaluation of
Smith. Id. at 25. However, the reason no mental health
evaluation was arranged or requested is because Smith
refused to cooperate with, or submit to, any mental health
evaluation. Indeed, Donald York Evans, Smith’s first-chair
counsel at the second penalty hearing, stated:

        When I first was appointed to represent Joe, I
        wanted to do a complete psychological work-
        up on him. I discussed the idea with Joe, and
        he refused to submit to any testing. He
        insisted he was not crazy. Joe would have
48                    SMITH V. BAKER

       none of it, and so I did not press the issue.
       There was no value in getting a mental health
       expert if Joe was not going to participate. I
       wasn’t confident that I would get anything I
       could use from an evaluation anyway. I
       suspected he had schizoid tendencies and a
       high IQ but that was just my guess and he
       wouldn’t participate in an evaluation.

    In Strickland, the Supreme Court recognized that “[t]he
reasonableness of counsel’s actions may be determined or
substantially influenced by the defendant’s own statements or
actions. Counsel’s actions are usually based, quite properly,
on informed strategic choices made by the defendant and on
information supplied by the defendant.” 466 U.S. at 691
(emphasis added).

    In Campbell v. Kincheloe, we applied the above-stated
principle in a habeas action brought by an inmate convicted
of three counts of aggravated murder and sentenced to death.
829 F.2d 1453, 1456–57, 1463 (9th Cir. 1987). There, the
defendant argued that his attorneys’ performance was
deficient, because they “fail[ed] to interview his family and
childhood friends, classmates, and teachers.” Id. at 1463.
However, the defendant had “specifically requested his
attorneys not to contact members of his family.” Id. Drawing
on the Supreme Court’s statement that “[t]he reasonableness
of counsel’s actions may be determined or substantially
influenced by the defendant’s own statements or actions,”
Strickland, 466 U.S. at 691, we held that trial counsels’
performance was not deficient, because they abided by the
defendant’s wishes and the defendant’s wishes were
consistent with “the professional judgment of his attorneys
that such interviews were unnecessary and would not have
                      SMITH V. BAKER                        49

made any difference in the context of the case.” Campbell,
829 F.2d at 1463–64.

    Relying on the principle discussed in Strickland and
Campbell, other courts have declined to find counsel’s
performance deficient where a defendant refuses to cooperate
with a certain line of investigation and subsequently alleges
error based on the attorney’s incomplete investigation into the
frustrated line of inquiry. See, e.g., Coleman v. Mitchell,
244 F.3d 533, 545–56 (6th Cir. 2001) (finding counsel’s
performance not deficient where, inter alia, the defendant
“did not cooperate with counsel . . . and refused to submit to
further psychological or psychiatric testing”); Owens v.
Guida, 549 F.3d 399, 405–06, 411–12 (6th Cir. 2008)
(finding counsel’s performance not deficient where
“[c]ounsel could have reasoned that additional investigation
would be of little use because [the defendant’s] own actions
[(e.g., refusing to cooperate with mental health examiners)]
shut off avenues for mitigation”); Johnston v. Singletary,
162 F.3d 630, 642 (11th Cir. 1998) (per curiam) (finding
counsels’ performance not deficient where, “despite his
lawyers’ efforts to have [the defendant] evaluated by a . . .
mental health expert[, the defendant] was steadfast in his
resistance to meeting with this expert”); Thompson v.
Wainwright, 784 F.2d 1103, 1106 (11th Cir. 1986)
(recognizing that a defendant “cannot blame the lack of
additional psychiatric examinations on incompetent counsel”
where the defendant refused to “cooperate” with the previous
psychiatrist).

    The reasonableness of Smith’s penalty-phase counsel’s
decision not to retain a mental health expert is “substantially
influenced by [Smith’s] own statements [and] actions.”
50                         SMITH V. BAKER

Strickland, 466 U.S. at 691.2 Evans discussed the possibility
of obtaining a psychological evaluation of Smith, but Smith
refused to submit to any such examination and adamantly
insisted that he had no mental health issues. Smith’s
actions—i.e., his refusal to cooperate with, and submit to, any
mental health evaluation—provided “counsel reason to
believe that pursuing [a mental health] investigation[ ] would
be fruitless,” because any expert report prepared without
Smith’s participation would, in counsel’s own words, be of
little or “no value.” See Strickland, 466 U.S. at 691; see also
Johnston, 162 F.3d at 642 (“[W]hen the strategy an attorney
might otherwise pursue is virtually foreclosed by his client’s
unwillingness to facilitate that strategic option, it is difficult
for [a] court, in a collateral proceeding, to characterize as
‘unreasonable’ counsel’s decision to abandon that otherwise
preferable strategy.”). Smith cannot now complain that his
counsel acted unreasonably by failing to investigate and
present mental health evidence at his sentencing when it was


     2
       The majority argues that I conflate Strickland’s prongs one and two,
but I consider Smith’s “own statements [and] actions” in determining
whether Smith’s counsel’s performance was deficient. Strickland,
466 U.S. at 691. Indeed, the majority contends that, “[a]t step one, we
consider whether Smith’s lawyers’ performance fell below an objectively
reasonable standard, and that question is largely a function of the choices
that were available to counsel.” Opinion at 28.

     Contrary to the majority’s argument, that is precisely what I have
done here. Put simply, Smith’s refusal to cooperate with, and submit to,
any mental health evaluation presented counsel with two choices. Counsel
could either retain a mental health expert to prepare an evaluation based
entirely on the record—which counsel recognized would be of little or no
value—or, considering Smith’s refusal, counsel could reasonably choose
not to retain a mental health expert to render a “compromised” opinion
that would “necessarily [be] vulnerable to cross examination.” Opinion
at 30.
                      SMITH V. BAKER                      51

Smith’s own actions that effectively rendered any such
evidence of “no value.” See Strickland, 466 U.S. at 691;
Johnston, 162 F.3d at 642.

    Both Smith and the majority argue that an expert could
have prepared a report without Smith’s participation based
solely on the expert’s review of the record—a report similar
to that prepared by Dr. Lundberg-Love in 2007. But, as
discussed, Smith’s counsel recognized that a report prepared
without Smith’s participation and based solely on a review of
the record would be of “no value.” The majority apparently
reaches the same conclusion, stating that “any expert’s
opinion [prepared without Smith’s cooperation] would have
been compromised and necessarily vulnerable to cross
examination.” Opinion at 30 (emphasis added). Thus, counsel
exercised reasonable professional judgment in declining to
retain an expert to render a compromised opinion that would
have been of little or no value. See Owens, 549 F.3d at 412
(finding counsel’s performance not deficient where
“[c]ounsel could have reasoned that additional investigation
would be of little use because [the defendant’s] own actions
[(e.g., refusing to cooperate with mental health examiners)]
shut off avenues for mitigation”); cf. Jeffries v. Blodgett,
5 F.3d 1180, 1198 (9th Cir. 1993) (recognizing that where “a
defendant preempts his attorney’s strategy” with his or her
actions or statements, “no claim for ineffectiveness can be
made” (quoting Mitchell v. Kemp, 762 F.2d 886, 889 (11th
Cir. 1985))).

    Moreover, even assuming Smith would have participated
in an evaluation, counsel was not “confident that [he] would
get anything [he] could use from [the] evaluation.” This
judgment is reasonable in light of the 1992 competency
report, which was based on a two-day evaluation of Smith
52                    SMITH V. BAKER

and several psychometric tests and found that, despite a
potential mixed personality disorder, Smith was “an
intelligent individual without any serious cognitive or
affective psychological disorder[s]” and exhibited no “acute
or Axis I mental disorders.” The report concluded that Smith
was competent to stand trial and “competent at the time of the
alleged offense.”

     Smith and the majority also rely on certain American Bar
Association (“ABA”) standards to show counsel acted
unreasonably. Those standards require counsel to investigate
“all reasonably available mitigating evidence,” ABA
Guidelines 11.4.1(C) (1989), including any evidence of a
defendant’s mental illness, see id. at 11.4.1(D)(2)(C).
However, although the ABA standards may “guide[]” the
inquiry into whether Smith’s counsel’s performance was
reasonable, “they are only guides.” Strickland, 466 U.S. at
688 (emphasis added). As noted above, “[t]he reasonableness
of counsel’s actions may be determined or substantially
influenced by the defendant’s own statements or actions.” Id.
at 691 (emphasis added). That is precisely what happened
here. Smith’s actions “substantially influenced” the
reasonableness of his counsel’s decision not to conduct a
more in-depth investigation into Smith’s mental health and
mitigated any guidance gleaned from the ABA standards. See
id.; see also Jeffries, 5 F.3d at 1197–98 (finding counsel’s
performance not deficient where counsel acquiesced in the
defendant’s decision “not to present any witnesses in
mitigation,” which contravened ABA standards).

    Considering “all of the circumstances” and indulging “a
strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance,” Strickland,
466 U.S. at 689, 691, Smith’s second penalty-phase counsel’s
                       SMITH V. BAKER                         53

judgment not to engage an expert to opine on Smith’s mental
health is reasonable in light of Smith’s refusal to cooperate
with any mental health expert. See Owens, 549 F.3d at 406,
411–12 (finding counsel’s performance not deficient where
“[c]ounsel could have reasoned that additional investigation
would be of little use because [the defendant’s] own actions
[(e.g., refusing to cooperate with mental health examiners)]
shut off avenues for mitigation”); Johnston, 162 F.3d 642
(finding counsel’s performance not deficient where, “despite
his lawyers’ efforts to have [the defendant] evaluated by a . . .
mental health expert[, the defendant] was steadfast in his
resistance to meeting with this expert”).

    Therefore, Smith’s IAC claim is insubstantial, because it
lacks merit. See Martinez, 566 U.S. at 14. Because Smith
cannot establish cause and prejudice to excuse his procedural
default under Martinez, the district court did not err in
holding that Smith’s IAC claim was procedurally defaulted.

                               B.

    Because Smith’s second penalty-phase counsel’s
performance was not deficient, I would not reach the
prejudice prong of Strickland. However, assuming that
counsel’s performance was deficient (as does the majority),
Smith failed to show “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694.
