               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


DAVID GULBRANDSON ,                    No. 07-99012
            Petitioner-Appellant,
                                         D.C. No.
                v.                     CV-98-02024-
                                        PHX-SMM
CHARLES L. RYAN , Arizona
Department of Corrections,
              Respondent-Appellee.



DAVID GULBRANDSON ,                    No. 09-72779
                        Petitioner,
                                          D.C. No.
                v.                      CV-98-2024-
                                         PHX-SMM
CHARLES L. RYAN ,
                       Respondent.       OPINION


      Appeal from the United States District Court
               for the District of Arizona
 Stephen M. McNamee, Senior District Judge, Presiding

                 Argued and Submitted
       June 14, 2012—San Francisco, California

                Filed March 18, 2013
2                    GULBRANDSON V . RYAN

    Before: Dorothy W. Nelson, Johnnie B. Rawlinson, and
               Sandra S. Ikuta, Circuit Judges.

                    Opinion by Judge Ikuta;
            Partial Concurrence and Partial Dissent
                     by Judge D.W. Nelson


                           SUMMARY*


                Habeas Corpus/Death Penalty

    The panel affirmed the district court’s denial of a
28 U.S.C. § 2254 habeas corpus petition by an Arizona state
prisoner challenging his conviction and capital sentence for
murder, and denied his request to file a second or successive
petition.

    The panel first held that the state court’s denial of
petitioner’s claim, that defense counsel provided ineffective
assistance by failing to call petitioner as a guilt-stage witness,
was not an objectively unreasonable application of Strickland
v. Washington, 466 U.S. 668 (1984), when counsel could
have reasonably concluded that petitioner’s testimony would
have harmed the defense because it could have alienated
petitioner in the jury’s eyes.

    The panel next held that the state court’s denial of
petitioner’s claim, that counsel was ineffective by failing to
recall his expert at sentencing to testify about petitioner’s

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

state of mind at the time of the crime, also was not
objectively unreasonable when such an opinion was
cumulative of evidence from that witness that was already
before the sentencing court.

    The panel also held that petitioner’s claim, that counsel
was ineffective by failing to recall the expert at sentencing to
testify about the potential for rehabilitation, was procedurally
barred because it was not fairly presented to the state court.

    The panel held that petitioner was not entitled to an
evidentiary hearing. The panel explained that, because the
above state court determinations were neither contrary to, nor
involved unreasonable applications, of federal law, the
district court was barred from any further factual
development of those claims.

    The panel held that petitioner was not entitled to relief as
to his claim that the trial judge considered victim impact
evidence from the victim’s family members during
sentencing in violation of the Eighth Amendment, because
there is no Supreme Court case squarely addressing the issue
of whether a judge (as opposed to a jury) is barred from
considering such evidence.

     The panel denied petitioner’s request for authorization to
file a second or successive § 2254 petition, because petitioner
did not demonstrate either due diligence or actual innocence
as to his claims that were not presented in his first state
habeas petition.

    Judge D.W. Nelson concurred in part, but dissented
because she would hold that the state court unreasonably
determined the facts in denying petitioner’s claim that
4                 GULBRANDSON V . RYAN

defense counsel should have called an expert to testify about
petitioner’s state of mind, and would remand for an
evidentiary hearing.


                        COUNSEL

Timothy M. Gabrielsen, Assistant Federal Public Defender,
Federal Public Defender’s Office, Tucson, Arizona, for
Appellant.

Susanne Bartlett Blomo, Arizona Attorney General’s Office,
Phoenix, Arizona, for Appellee.


                        OPINION

IKUTA, Circuit Judge:

    David Gulbrandson is an Arizona capital prisoner who
appeals from the denial of his first habeas petition and also
seeks authorization to file a second or successive habeas
petition.   We affirm the district court’s denial of
Gulbrandson’s first petition and deny his request to file a
second or successive petition.

                              I

                             A

   Gulbrandson and Irene Katuran were partners in a
Phoenix-based photography business called Memory Makers.
For about a year, during 1990, they were also romantically
involved. This relationship ended in January 1991, when
                  GULBRANDSON V . RYAN                      5

Irene began seeing another man. When their personal
relationship deteriorated, the business relationship soured as
well, and Gulbrandson began suspecting that Irene was trying
to buy him out of Memory Makers. State v. Gulbrandson,
906 P.2d 579, 586 (Ariz. 1995).

    This tension reached a high point on Valentine’s Day
1991. Gulbrandson became intoxicated and argued with
Irene in the presence of two friends, Sally and Charles Maio.
Gulbrandson then tried to strangle Irene and had to be pulled
off by Charles Maio. Later that night, Gulbrandson told the
Maios, “I’m going to kill her [Irene]. I’m going to kill the
business. I’m going to kill everything.”

    Around one month later on the morning of March 11,
1991, Irene was found dead in her house. Gulbrandson had
come over the night before and the two had another fight
about the business. According to Gulbrandson, at some point
during the argument Irene threw a pair of scissors at him,
after which he snapped. The Arizona Supreme Court
described the resulting crime as follows:

       Irene was killed brutally. The police found
       her face down dressed in only a pair of panties
       with her legs bent up behind her at the knee
       and her ankles tied together by an electrical
       cord attached to a curling iron. Her right wrist
       was bound with an electrical cord attached to
       a hair dryer. Her bedroom was covered in
       what appeared to be blood. From the
       bedroom to the bathroom were what appeared
       to be drag marks in blood. Clumps of her hair
       were in the bedroom; some of the hair had
6             GULBRANDSON V . RYAN

    been cut, some burned, and some pulled out
    by the roots.

    Four knives and a pair of scissors were in the
    kitchen sink and appeared to have blood on
    them; hair appeared to be on at least one of
    the knives. There also was what appeared to
    be blood on a paper towel holder in the
    kitchen; a burnt paper towel was in Irene’s
    bedroom. A Coke can with what appeared to
    be a bloody fingerprint on it was on the
    kitchen counter; this fingerprint was later
    identified as defendant’s. At trial, the state’s
    criminalist testified that the knives, scissors,
    paper towel holder, and Coke can had human
    blood on them, although the police did not
    determine the blood type. Defendant’s
    fingerprints were found on the paper towel
    holder and on an arcadia door at Irene’s home,
    which was open in the family room the
    morning after the crime. A blood-soaked
    night shirt with holes in it was in Irene’s
    bedroom; the blood on the nightshirt was
    consistent with Irene’s blood type.           A
    banker’s bag was also in her bedroom with
    what appeared to be blood on it.

    The autopsy revealed that Irene suffered at
    least 34 sharp-force injuries (stab wounds and
    slicing wounds), puncture wounds, and many
    blunt force injuries. The most serious stab
    wound punctured her liver, which alone was
    a fatal injury. Her nose was broken, as were
    2 ribs on the back of the chest and 5 ribs in
                  GULBRANDSON V . RYAN                     7

       front on the same side of her trunk. The tine
       from a wooden salad fork was embedded in
       her leg; a broken wooden fork was found in
       the bedroom. On her left buttock was an
       abrasion that appeared to be from the heel of
       a shoe. The thyroid cartilage in front of her
       neck was fractured, which could have been
       caused by squeezing or by impact with a blunt
       object. She died from the multiple stab
       wounds and the blunt neck injury. The neck
       injury may have resulted in asphyxiation. The
       pathologist believed that most, if not all, of
       the injuries were inflicted before death.

Gulbrandson, 906 P.2d at 586–87.

    Following the murder, Gulbrandson stole Irene’s car and
drove it to Laughlin, Nevada, where he gambled at a hotel
casino. Some time later, Gulbrandson traveled to Montana,
where he was arrested on April 3, 1991. Id. at 587–88.

    Two weeks later, Gulbrandson was indicted for first-
degree murder and theft. Id. at 588. He presented the
defenses of insanity and lack of premeditation. At the time,
Arizona used the so-called M’Naghten test for insanity, which
was statutorily codified as follows:

       A person is not responsible for criminal
       conduct by reason of insanity if at the time of
       such conduct the person was suffering from
       such a mental disease or defect as not to know
       the nature and quality of the act or, if such
       person did know, that such person did not
8                     GULBRANDSON V . RYAN

         know that what he was doing was wrong.
         Ariz. Rev. Stat. § 13-502 (1991).1

    The State refuted Gulbrandson’s defenses with expert
testimony from Dr. Alexander Don and Dr. John Scialli, who
both performed psychiatric evaluations on Gulbrandson. Dr.
Don testified that he found “no indications that [Gulbrandson]
suffered with a mental illness or defect at the time of the
commission of the crime,” and there was “no reason to doubt
that his awareness of what he was doing and the wrongfulness
of what he was doing was unimpaired.” Dr. Scialli
corroborated Dr. Don’s testimony regarding Gulbrandson’s
sanity.

    Gulbrandson relied on a psychiatric expert named Dr.
Martin Blinder, who examined Gulbrandson in August 1992
and prepared a report detailing his conclusions (“1992
report”). Dr. Blinder’s report provided four specific
diagnoses for Gulbrandson: “[p]robable dissociative episode
[and] possible fugue state,” “[b]ipolar disorder,”
“[a]lcoholism,” and “[p]ersonality disorder, primarily
narcissistic, with antisocial traits.” Although Dr. Blinder’s
report provided specific diagnoses for Gulbrandson, it did not
state that Gulbrandson was legally insane at the time of the
murder.

    At the pre-trial hearing, the state moved to limit expert
testimony on Gulbrandson’s state of mind to a general
description of his personality. The state argued that neither
the state nor defense experts, including Dr. Blinder, were


    1
   Unless otherwise indicated, all citations to Arizona statutes will be to
the 1991 version of the law, which was the law at the time of
Gulbrandson’s trial.
                     GULBRANDSON V . RYAN                               9

prepared to opine that Gulbrandson was insane, and in such
circumstances, Arizona law precluded any testimony about
the defendant’s mental state at the time of the murder. See
State v. McMurtrey, 664 P.2d 637, 664 (Ariz. 1983) (in banc)
(“In cases not involving an insanity defense, a psychiatric
expert witness ordinarily may not give an opinion concerning
the defendant’s state of mind at the time of the crime.”). In
response, defense counsel stated that he intended to raise an
insanity defense, as well as argue an absence of intent. He
noted that Dr. Blinder had examined Gulbrandson in order “to
determine if, in fact, he was M’Naghten insane at the time of
the event,” and that he “would expect” that Dr. Blinder’s
“testimony would relate to that.”2 The court stated it would
take the issue under advisement.

    Gulbrandson did not testify at the guilt stage of the trial
and, instead, relied on Dr. Blinder’s testimony. Dr. Blinder
described Gulbrandson’s psychiatric background as a “long
adult history of alcoholism and mental illness, primarily
depressive moods with marked mood swings and blackout
spells.” He also testified as to his four specific diagnoses for
Gulbrandson.




  2
     The dissent is thus mistaken in identifying a contradiction between
(1) defense counsel’s statement to the trial court that “Dr. Blinder
examined Gulbrandson to determine if, in fact, he was M’Naghten insane
at the time of the event” and (2) defense counsel’s “1997 declaration that
Dr. Blinder . . . was unwilling to render an opinion that Gulbrandson was
M’Naghten insane at the time of the murder.” Dis. op. at 46–47. In fact,
at no time did the defense counsel state that Dr. Blinder would offer a
M’Naghten insanity defense. Even Gulbrandson acknowledges that
defense counsel “was non-committal as to whether Dr. Blinder would
testify to insanity.”
10                 GULBRANDSON V . RYAN

    Dr. Blinder did not testify that these mental defects
rendered Gulbrandson legally insane. As a result, the trial
court ruled that Dr. Blinder could not testify directly about
Gulbrandson’s mental state at the time of the murder.
Nevertheless, the court allowed Dr. Blinder to present his
opinions regarding Gulbrandson’s mental state at the time of
the murder indirectly through hypothetical discussions of how
an individual with Gulbrandson’s exact diagnoses might have
reacted when faced with circumstances like the ones
Gulbrandson encountered the night he killed Irene. For
example, when asked about how Gulbrandson would react “in
a situation where he was under a high degree of stress and
there was a quarrel or argument and an object was thrown at
him,” Dr. Blinder responded that Gulbrandson “disassociates,
goes out of control, loses his ability to think rationally, [and]
just acts in a destructive violent fashion.” In other words,
Gulbrandson would “[t]une out consciousness and operate
like a robot, a violent out-of-control robot.” Dr. Blinder also
acknowledged that, given Gulbrandson’s mental health
history, “a quarrel coupled with . . . some physical
provocation” would “set the stage for gratuitous violence,”
and that “such action or reaction . . . might result reflexively
rather than with any thought process.”

    The jury convicted Gulbrandson of premeditated first-
degree murder and theft of property having a value of at least
$8,000. Gulbrandson, 906 P.2d at 588.

                               B

    Pursuant to Arizona law at the time, the judge held a pre-
sentencing hearing to determine whether aggravating and
                  GULBRANDSON V . RYAN                     11

mitigating circumstances were present. Ariz. Rev. Stat. § 13-
703(B) (1991), invalidated by Ring v. Arizona, 536 U.S. 584
(2002). A death sentence must be supported by one or more
of ten statutorily enumerated aggravating circumstances,
§ 13-703(E), (F), including the circumstance that the
defendant “committed the offense in an especially heinous,
cruel or depraved manner,” § 13-703(F)(6). The Arizona
Supreme Court has identified five factors to consider in
determining whether a murder was especially heinous, cruel
or depraved: (1) relishing the murder, (2) infliction of
gratuitous violence, (3) needless mutilation of the victim,
(4) senselessness of the crime, and (5) helplessness of the
victim. State v. Gretzler, 659 P.2d 1, 11–12 (Ariz. 1983) (in
banc).

     If the requisite aggravating circumstance is proven, the
judge must next decide whether there are “mitigating
circumstances sufficiently substantial to call for leniency.”
Ariz. Rev. Stat.§ 13-702(E). “Mitigating circumstances shall
be any factors proffered by the defendant or the state which
are relevant in determining whether to impose a sentence less
than death, including any aspect of the defendant’s character,
propensities or record and any of the circumstances of the
offense.” § 13-703(G). The statute sets forth a nonexclusive
list of such circumstances, including:

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

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

§ 13-703(G)(1), (2).

    In addition to the evidence submitted by the parties at
sentencing, the judge must also consider any “[e]vidence
admitted at the trial, relating to such aggravating or
mitigating circumstances,” even if that evidence is not
reintroduced at the sentencing proceeding. § 13-703(C).

     At the pre-sentencing hearing and in its sentencing
memorandum, the State argued that the evidence presented at
trial demonstrated the aggravating circumstance that
Gulbrandson “committed the offense in an especially heinous,
cruel or depraved manner.” § 13-703(F)(6).

    Gulbrandson, in turn, advanced a number of statutory and
non-statutory mitigating circumstances. First, Gulbrandson
argued that his capacity to conform his conduct was
significantly impaired by his mental illnesses, § 13-
703(G)(1), and that he was facing unusual stress at the time
of the murder, § 13-703(G)(2). Gulbrandson also raised four
non-statutory mitigating circumstances: his character and
behavioral disorders, his difficult childhood, his good
behavior while incarcerated, and his potential for
rehabilitation. Among other things, Gulbrandson’s counsel
presented Dr. Blinder’s 1992 report in support of these
mitigating circumstances. Gulbrandson also gave a prepared
statement.

   On February 19, 1993, the judge held a second sentencing
hearing. In the presentencing report filed in anticipation of
                  GULBRANDSON V . RYAN                      13

this hearing, Irene’s parents and two daughters all stated that
they would like to see Gulbrandson receive the death penalty.
These statements were reiterated at the hearing, where one of
Irene’s daughters testified that she wanted to “see
[Gulbrandson] killed. . . . [and] tortured the way he tortured
my mom,” and Irene’s father stated that he believed
“[Gulbrandson] should be executed as promptly as possible.”
At the conclusion of this second hearing, the judge found that
Gulbrandson had relished the murder, inflicted gratuitous
violence, and that Irene was a helpless victim. Therefore, he
concluded that the State had proven beyond a reasonable
doubt the aggravating circumstance that Gulbrandson killed
Irene in an “especially heinous and depraved manner.”

    As for statutory mitigation, the judge held that
Gulbrandson failed to prove that his capacity to conform his
conduct was impaired, Ariz. Rev. Stat.§ 13-703(G)(1), but
that he did show he was under unusual stress, § 13-703(G)(2).
Gulbrandson, 906 P.2d at 588–89. The judge also found a
variety of non-statutory mitigating circumstances, namely,
that Gulbrandson had character and behavior disorders, a
difficult childhood, and had behaved well while in jail.
However, the judge determined that the mitigating
circumstances were not sufficiently substantial to justify
leniency. He sentenced Gulbrandson to death.

                              C

    On direct review, the Arizona Supreme Court affirmed
the trial court’s findings of gratuitous violence and victim
helplessness, but reversed the finding that Gulbrandson
relished the murder. Gulbrandson, 906 P.2d at 601–02. In
considering the statutory mitigating factors, the court
affirmed the trial court’s determination that Gulbrandson had
14                GULBRANDSON V . RYAN

not proved the (G)(1) statutory mitigating factor, noting that
the testimony of Dr. Don and Dr. Scialli “supports the trial
court’s finding that the (G)(1) circumstance was not
established,” because “both testified that defendant
appreciated the nature of his acts and could conform his
conduct to the requirements of the law.” Id. at 602. After
conducting an independent reweighing of the mitigating and
aggravating circumstances, it upheld the death sentence,
concluding that “this was a particularly gruesome, brutal, and
protracted killing.” Id. at 604. The court also denied
Gulbrandson’s claim that his Eighth Amendment rights were
violated because impermissible victim impact testimony from
Irene’s family members was presented to the sentencing
judge. Id. at 598–99.

    In April 1997, Gulbrandson filed a petition for post-
conviction relief in state court asserting, among other things,
various claims of ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668 (1984). Relevant
here, he argued that defense counsel provided constitutionally
ineffective assistance when he failed to (1) call Gulbrandson
as a witness during the guilt stage of trial, (2) elicit an
insanity opinion from Dr. Blinder, and (3) recall Dr. Blinder
at sentencing to testify about Gulbrandson’s state of mind
during the murder. In support of the first claim, Gulbrandson
submitted an affidavit explaining that he would have testified
about his psychiatric history as well as his recollection of the
night of the murder.

    Gulbrandson based the latter two claims on an affidavit
from Dr. Blinder (“1997 affidavit”), which stated that Dr.
Blinder had been prepared at the time of trial to testify as to
certain conclusions. These conclusions included: that
Gulbrandson was suffering from certain mental disabilities
                       GULBRANDSON V . RYAN                                  15

(the same disabilities that were listed in Dr. Blinder’s 1992
report);3 that Gulbrandson had suffered from these disabilities
for a number of years before the murder; that Irene’s
throwing the scissors had “triggered his narcissistic rage,
causing him to act with lethal force;” and that “at the time of
this rage, he was suffering from the mental illnesses
described above and that would significantly affect his ability
to appreciate the nature and quality of his acts or to
understand right from wrong.” The 1997 affidavit also
expressed Dr. Blinder’s professional opinion that
Gulbrandson’s “condition is treatable and that it is very
probable that he can be rehabilitated,” although it did not
indicate that Dr. Blinder would have made that statement at
the 1992 trial.

     The state post-conviction court denied the petition. As to
Gulbrandson’s first claim, it held that counsel’s decision not
to call Gulbrandson as a witness was reasonable under the
circumstances and, moreover, that Gulbrandson failed to
demonstrate that he was prejudiced by this alleged omission.
With respect to the second claim, it held that counsel behaved
reasonably by not obtaining an insanity opinion because Dr.
Blinder was not willing to offer such an opinion at the time of
trial.

    The court rejected the third claim, that counsel was
ineffective for failing to recall Dr. Blinder at sentencing,
under both prongs of Strickland. With respect to the


  3
    Dr. Blinder’s 1997 affidavit states he was prepared at the time of trial
to testify that Gulbrandson was suffering from mental disabilities,
“including (i) probable disassociative episode, possible fugue state;
(ii) bipolar disorder; (iii) alcoholism, in part related to diagnosis (ii); [and]
(iv) personality disorder, primarily narcissistic, with antisocial traits.”
16                GULBRANDSON V . RYAN

deficiency prong, the court held that defense counsel’s
performance was reasonable in light of the circumstances at
the time. Specifically, counsel had ensured that Dr. Blinder’s
opinions were before the sentencing court by submitting Dr.
Blinder’s written report and by presenting Dr. Blinder’s
testimony at trial, which, by statute, meant that counsel did
not need to resubmit the testimony at sentencing. Moreover,
at the time of trial, defense counsel was under the impression
that Dr. Blinder would not render opinions other than those
contained in his testimony and his report. As to Strickland’s
prejudice prong, the court determined that there was “no
reasonable probability that the sentence imposed by this
Court would have been different if counsel had presented, at
the sentencing hearing, the opinions set forth in Dr. Blinder’s
[1997] affidavit.” The Arizona Supreme Court declined
further review.

    In May 1999, Gulbrandson filed a habeas petition in the
District of Arizona. The district court denied all of
Gulbrandson’s claims and also denied his “general request[]”
for an evidentiary hearing because a hearing was “neither
warranted nor required.” In February 2009, a motions panel
of this court granted a certificate of appealability that
included all of Gulbrandson’s claims now before us.

    On appeal, Gulbrandson argues that the state post-
conviction court unreasonably applied Strickland to deny him
relief based on counsel’s alleged failures to call Gulbrandson
as a guilt-stage witness and to recall Dr. Blinder at sentencing
to testify about Gulbrandson’s state of mind at the time he
murdered Irene. He also asserts, for the first time in any
proceedings, that defense counsel was ineffective for failing
to recall Dr. Blinder at sentencing to testify about
Gulbrandson’s potential for rehabilitation.             Further,
                   GULBRANDSON V . RYAN                        17

Gulbrandson argues that the district court abused its
discretion in denying him an evidentiary hearing on these
ineffective assistance claims, as well as his claim that counsel
was deficient for failing to obtain an insanity opinion from
Dr. Blinder. Finally, he argues that the Arizona Supreme
Court’s denial of his Eighth Amendment claim was an
objectively unreasonable application of clearly established
Supreme Court precedent.

   In addition to this direct appeal of his first habeas petition,
Gulbrandson also seeks leave to file a second or successive
habeas petition alleging new claims based on a recently
obtained expert report.

                               II

                               A

    We review de novo the district court’s denial of a habeas
petition. Fairbank v. Ayers, 650 F.3d 1243, 1250 (9th Cir.
2011). A district court’s decision to deny an evidentiary
hearing is reviewed for abuse of discretion. Id. at 1251.

    The Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA) applies to Gulbrandson’s petition, which was
filed after April 24, 1996. See Lindh v. Murphy, 521 U.S.
320, 322, 336 (1997). Under 28 U.S.C. § 2254(d), habeas
relief can be granted only if the state court proceeding
adjudicating the claim on the merits “resulted in a decision
that was contrary to, or involved an unreasonable application
18                GULBRANDSON V . RYAN

of, clearly established Federal law, as determined by the
Supreme Court of the United States,” § 2254(d)(1), or “was
based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding,”
§ 2254(d)(2).

    Under § 2254(d)(1), “[t]he pivotal question is whether the
state court’s application” of the Supreme Court precedent
“was unreasonable,” Harrington v. Richter, 131 S. Ct. 770,
785 (2011), as opposed to merely “incorrect or erroneous,”
Lockyer v. Andrade, 538 U.S. 63, 75 (2003); see also
Williams v. Taylor, 529 U.S. 362, 410 (2000) (“[A]n
unreasonable application of federal law is different from an
incorrect application of federal law.”). In applying this
standard, “a habeas court must determine what arguments or
theories supported or . . . could have supported the state
court’s decision; and then it must 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.” Harrington, 131 S. Ct. at 786.

    AEDPA demands similar deference to a state court’s
factual findings under § 2254(d)(2). “[A] federal court may
not second-guess a state court’s fact-finding process unless,
after review of the state-court record, it determines that the
state court was not merely wrong, but actually unreasonable.”
Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004). For a
factual finding to be “actually unreasonable,” we must
conclude that “an appellate panel, applying the normal
standards of appellate review, could not reasonably conclude
that the finding is supported by the record.” Id. at 1000.
Similarly, a state court’s fact-finding process is unreasonable
under § 2254(d)(2) only if we are “satisfied that any appellate
court to whom the defect is pointed out would be
                  GULBRANDSON V . RYAN                      19

unreasonable in holding that the state court’s fact-finding
process was adequate.” Id. (emphasis added).

    A state court need not conduct an evidentiary hearing to
resolve every disputed factual question. See Hibbler v.
Benedetti, 693 F.3d 1140, 1147 (9th Cir. 2012). Indeed, “[a]
state court’s decision not to hold an evidentiary hearing does
not render its fact-finding process unreasonable so long as the
state court could have reasonably concluded that the evidence
already adduced was sufficient to resolve the factual
question.” Id. As always, the “ultimate question is whether
an appellate court would be unreasonable in holding that an
evidentiary hearing was not necessary in light of the state
court record.” Id. (emphasis in original).

                              B

    The clearly established federal law for ineffective
assistance of counsel claims is Strickland v. Washington,
466 U.S. 668, which held that the Sixth Amendment
guarantees effective assistance of counsel at trial and at
capital sentencing proceedings resembling trials. Id. at
687–88. To succeed on a Strickland claim, a defendant must
show that (1) his counsel’s performance was deficient and
that (2) the “deficient performance prejudiced the defense.”
Id. at 687.

    Counsel is constitutionally deficient if the representation
“fell below an objective standard of reasonableness” such that
it was outside “the range of competence demanded of
attorneys in criminal cases.” Id. at 687–88 (internal quotation
marks omitted). “Judicial scrutiny of counsel’s performance
must be highly deferential,” and we must guard against the
temptation “to second-guess counsel’s assistance after
20                GULBRANDSON V . RYAN

conviction or adverse sentence.” Id. at 689. Instead, we must
make every effort “to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Id.; see also Harrington
v. Richter, 131 S. Ct. 770, 789 (2011). Because of the
difficulties inherent in fairly evaluating counsel’s
performance, courts must “indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.” Strickland, 466 U.S. at 689. This
presumption of reasonableness means that not only do we
“give the attorneys the benefit of the doubt,” we must also
“affirmatively entertain the range of possible reasons
[defense] counsel may have had for proceeding as they did.”
Cullen v. Pinholster, 131 S. Ct. 1388, 1407 (2011) (internal
quotation marks and alterations omitted).

    To establish prejudice, the defendant must 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. Under this standard,
we ask “whether it is ‘reasonably likely’ the result would
have been different.” Harrington, 131 S. Ct. at 792 (quoting
Strickland, 466 U.S. at 696). That is, only when “[t]he
likelihood of a different result [is] substantial, not just
conceivable,” id., has the defendant met Strickland’s demand
that defense errors were “so serious as to deprive the
defendant of a fair trial,” id. at 787–88 (quoting Strickland,
466 U.S. at 687).

    Under AEDPA, we do not apply the Strickland standard
de novo. Rather, “[t]he pivotal question is whether the state
court’s application of the Strickland standard was
unreasonable.” Harrington, 131 S. Ct. at 785. “A state court
                  GULBRANDSON V . RYAN                      21

must be granted a deference and latitude that are not in
operation when the case involves review under the Strickland
standard itself.” Id. “[B]ecause the Strickland standard is a
general standard, a state court has even more latitude to
reasonably determine that a defendant has not satisfied that
standard.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).
Deference to a state court’s determination that counsel’s
performance was not deficient requires us to ask “whether
there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Harrington, 131 S. Ct. at
788. Deference to a state court’s conclusion that any
deficiency did not result in prejudice requires us to ask
whether such a determination by the state court “would be
unreasonable.” Premo v. Moore, 131 S. Ct. 733, 744 (2011);
see also Harrington, 131 S. Ct. at 792 (holding that “[i]t
would not have been unreasonable” for the state court to
conclude that the petitioner’s evidence of prejudice did not
make it “reasonably likely” that the result would have been
different).

    We apply this deferential standard to review the state
court’s “last reasoned decision.” Cheney v. Washington,
614 F.3d 987, 995 (9th Cir. 2010). Here, the last reasoned
decision addressing Gulbrandson’s various ineffective
assistance of counsel claims is that of the Arizona trial court
on state post-conviction review.

                              C

    We begin by considering Gulbrandson’s argument that
the state court unreasonably denied him relief under
Strickland for his claim that defense counsel was ineffective
because he failed to call Gulbrandson as a guilt-stage witness.
The state court held that counsel’s decision not to call
22                GULBRANDSON V . RYAN

Gulbrandson was reasonable under the circumstances. This
was not an objectively unreasonable application of Strickland.

    As set forth in his post-conviction affidavit, had
Gulbrandson testified, he would have testified about, among
other things, his history of psychiatric problems and his
recollection of the events leading up to the crime. In
addition, he “intended to carefully explain” how he
discovered that Irene was going to “deprive me of the fruits
of my labor behind my back” after “I started and developed
my business through hard work and sacrifice.” He would
also have told the jury that when he arrived at Irene’s house
the night of the murder, she was “argumentative, hostile and
disrespectful to me.”

    Defense counsel could have reasonably concluded that
Gulbrandson’s testimony would have harmed the defense
because it could have “alienated him in the eyes of the jury.”
Bell v. Cone, 535 U.S. 685, 700 (2002). Gulbrandson’s
suggestions in his post-conviction affidavit that the murder
was a justifiable response to Irene’s actions towards
Gulbrandson would likely have been negatively received by
the jury. See Burger v. Kemp, 483 U.S. 776, 791–92 (1987)
(holding that an attorney reasonably determined that “it
would be unwise to put [defendant] on the witness stand”
because the “record indicates that [defendant] had never
expressed any remorse about his crime” and thus the “jury
might regard [defendant’s] attitude on the witness stand as
indifferent or worse.”). Gulbrandson confirmed that he
would be an unsympathetic witness in his sentencing
allocution, where he derided the prosecutor as “unethical and
                   GULBRANDSON V . RYAN                        23

ambitious,” the trial as a “sham and a mockery of the judicial
system,” and the “despicable representation” by his various
appointed attorneys as “ill-investigated, ill-prepared, [and] ill-
presented.”

     Accordingly, the state court reasonably concluded that
“counsel’s representation was within the wide range of
reasonable professional assistance,” Harrington, 131 S. Ct.
at 787 (internal quotation marks omitted), when he decided
not to call Gulbrandson as a guilt-stage witness, see id. at
789–790 (“An attorney need not pursue an investigation that
. . . might be harmful to the defense.”). There is no basis
under AEDPA to hold that this was an objectively
unreasonable application of Strickland.

                               D

    We next consider Gulbrandson’s claim that counsel was
ineffective in failing to recall Dr. Blinder, at sentencing, to
testify about Gulbrandson’s state of mind at the time of the
murder. Applying AEDPA’s deferential standard of review,
we conclude that the state post-conviction court did not apply
Strickland unreasonably in rejecting this claim. See
28 U.S.C. § 2254(d)(1).

    Under AEDPA, we are “doubly deferential” to the state
court’s resolution of Gulbrandson’s Strickland claim.
Pinholster, 131 S. Ct. at 1403 (internal quotation marks
omitted). In order to satisfy Strickland’s prejudice prong,
Gulbrandson must demonstrate “a reasonable probability”
that, but for the claimed error, “the result of the proceeding
would have been different.” Premo, 131 S. Ct. at 739
(internal quotation marks omitted). But it is not our task to
determine whether Gulbrandson has made such a showing;
24                GULBRANDSON V . RYAN

rather, AEDPA requires us to ask whether the state post-
conviction court was reasonable in determining that
Gulbrandson was not prejudiced. Id. at 744. We must uphold
the state court’s decision if “fairminded jurists could
disagree” as to whether it was correct. Harrington, 131 S. Ct.
at 786 (internal quotation marks omitted).

    Applying this standard, we conclude that the state post-
conviction court reasonably determined that Gulbrandson was
not prejudiced by counsel’s decision not to recall Dr. Blinder.
As the court noted, counsel had already adequately apprised
the sentencing court of Dr. Blinder’s opinions regarding
Gulbrandson’s state of mind at the time of the murder by
eliciting Dr. Blinder’s testimony at trial and by submitting Dr.
Blinder’s 1992 report to the court. This evidence was part of
the sentencing record by operation of law. See Ariz. Rev.
Stat. § 13-703(C). Because the opinions set forth in Dr.
Blinder’s 1997 affidavit were cumulative of the evidence that
was already before the sentencing court, it was not
unreasonable for the state post-conviction court to conclude
that these opinions would not have made a difference at
sentencing. See Wong v. Belmontes, 130 S. Ct. 383, 387–88
(2009) (holding that the failure to present cumulative
mitigation evidence at sentencing did not prejudice the
defendant).

    The cumulative nature of the 1997 affidavit is readily
apparent. The 1997 affidavit confirms that Dr. Blinder would
have given the same mental illness diagnoses of Gulbrandson
in 1997 as he gave in 1992. It also confirms that Dr. Blinder
would have provided a description of Gulbrandson’s mental
state at the time of the murder that was essentially the same
as the testimony adduced at trial. For instance, the 1997
affidavit states that Gulbrandson “acted in a rage, impulsively
                    GULBRANDSON V . RYAN                         25

and without reflection and was unable to conform his conduct
to societal norms because of his mental disability,” and that
Gulbrandson’s disorders “would [have] significantly
affect[ed] his ability to appreciate the nature and quality of
his acts or to understand right from wrong.” The 1992 trial
testimony communicates the same conclusion: that
Gulbrandson’s capacity to control and conform his conduct
at the time of the murder was greatly diminished. To that
effect, Dr. Blinder explained that “in a situation where
[Gulbrandson] was under a high degree of stress and there
was a quarrel or argument and an object was thrown at him,”
he “dissociates, goes out of control, loses his ability to think
rationally, [and] acts in a destructive violent fashion . . . . like
a robot, a violent out-of-control robot.” Dr. Blinder also
agreed with counsel that Gulbrandson, when faced with the
exact circumstances he encountered the night he killed Irene,
would undertake gratuitously violent acts “reflexively rather
than with any thought process.” Likewise, Dr. Blinder’s 1992
report, which was also before the sentencing court, states that
Gulbrandson experienced a “narcissistic rage . . . just prior to
the homicide,” and that his “glaring failure to take even the
most basic steps to cover his tracks . . . is a measure of his
degree of psychological disability at the time of the offense.”

    In short, both the 1997 affidavit and the evidence adduced
in 1992, if credited, could have established that Gulbrandson
met the (G)(1) mitigating circumstance, which requires a
defendant to establish that “[t]he defendant’s capacity to
appreciate the wrongfulness of his conduct or to conform his
conduct to the requirements of law was significantly
impaired, but not so impaired as to constitute a defense to
prosecution.” § 13-703(G)(1). Although Dr. Blinder’s
statement in his 1997 affidavit tracks the language of the
mitigation statute more closely than does his 1992 testimony,
26                   GULBRANDSON V . RYAN

the state post-conviction court could reasonably have
concluded that there was no “reasonable probability” that
Gulbrandson would have received a different sentence even
if counsel had presented, at the sentencing hearing, the
rephrased testimony set forth in Dr. Blinder’s 1997 affidavit.
Premo, 131 S. Ct. at 744.4

    Because the state court reasonably held that trial counsel’s
failure to recall Dr. Blinder at sentencing did not result in
prejudice to Gulbrandson, we need not reach the state court’s
determination that such failure was not deficient. See
Strickland, 466 U.S. at 697 (holding that “a court deciding an
ineffective assistance claim” need not “address both
components of the inquiry”).

    The dissent argues that the state post-conviction court
unreasonably determined the facts by not holding an
evidentiary hearing before rejecting Gulbrandson’s Strickland
claim. Dis. op. at 46–47. We disagree. Here the state court
assumed that Dr. Blinder would have provided the opinions
from his 1997 declaration at sentencing, but still rejected
Gulbrandson’s Strickland claim. A state court need not hold

     4
       The dissent accuses us of engaging in “post-hoc analysis” in
concluding that Dr. Blinder’s 1997 affidavit is cumulative of his 1992
testimony. Dis. op. at 43 n.1. But in making this criticism, the dissent
loses sight of our standard of review. Under Strickland, Gulbrandson bore
the burden of showing the state court that he had suffered prejudice from
trial counsel’s error because, (1) the opinions in Dr. Blinder’s 1997
affidavit were materially different from the opinions already before the
state court, and (2) these new opinions would have made a difference.
The state court held that Gulbrandson did not meet that burden. Our task
is merely to determine whether that ruling was an unreasonable
application of Strickland. W e compare Dr. Blinder’s 1997 affidavit and
1992 testimony simply to confirm the reasonableness of the state court’s
decision.
                  GULBRANDSON V . RYAN                     27

an evidentiary hearing when it would not afford relief even
assuming the defendant’s allegations were true. See Hibbler,
693 F.3d at 1147–48 (holding that a state court need not
“conduct an evidentiary hearing to resolve every disputed
factual question” and that an evidentiary hearing is
unnecessary where the record precludes relief); Perez v.
Rosario, 459 F.3d 943, 951 (9th Cir. 2006) (“Where there is
no likelihood that an evidentiary hearing would have affected
the determination of the state court, its failure to hold one
does not make such determination unreasonable.”).

    Accordingly, we conclude that the state court neither
unreasonably applied Strickland nor unreasonably determined
the facts when it determined that Gulbrandson was not
prejudiced by defense counsel’s decision not to recall Dr.
Blinder.

                              E

    We turn next to Gulbrandson’s claim for ineffective
assistance of counsel based on defense counsel’s failure to
recall Dr. Blinder at sentencing to testify about
Gulbrandson’s potential for rehabilitation. The factual
underpinning for this claim is also Dr. Blinder’s 1997
affidavit, which states that Gulbrandson’s “condition is
treatable and that it is very probable that he can be
rehabilitated, learn to control and conform his behavior,
manage the psychological deficits created by his illnesses and
be rehabilitated while in institutional custody.” Because this
evidence was potentially mitigating, see State v. Finch,
68 P.3d 123, 126 (Ariz. 2003), Gulbrandson asserts that
defense counsel was ineffective for failing to develop it, and
that the state court unreasonably held to the contrary. The
State argues that this claim is procedurally barred. We agree.
28                 GULBRANDSON V . RYAN

    A federal court may not grant a habeas petition unless the
petitioner has exhausted all available state remedies.
28 U.S.C. § 2254(b)(1)(A). A federal claim is exhausted if it
“has been fairly presented to the state courts.” Picard v.
Connor, 404 U.S. 270, 275 (1971). If the claim was never
fairly presented, we nevertheless deem the claim technically
exhausted if “the court to which the petitioner would be
required to present his claims in order to meet the exhaustion
requirement would now find the claims procedurally barred.”
Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); see also
id. at 732. If this predicted default of the federal claim in
state court would be based on “an independent and adequate
state procedural rule,” that claim is procedurally barred in
federal court unless the petitioner can excuse the default by
showing cause and prejudice or a fundamental miscarriage of
justice. Id. at 750.

    In order to “fairly present” an issue to a state court, a
petitioner must “present the substance of his claim to the state
courts, including a reference to a federal constitutional
guarantee and a statement of facts that entitle the petitioner to
relief.” Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009).
As a general matter, each “unrelated alleged instance[] of
counsel’s ineffectiveness” is a separate claim for purposes of
exhaustion. Moormann v. Schriro, 426 F.3d 1044, 1056 (9th
Cir. 2005). In Moormann, for example, we held that
petitioner’s claim that “counsel was ineffective for failing to
investigate and present a viable defense” did not fairly
present the more specific claim that counsel was ineffective
in “presenting the insanity defense.” Id. Thus, we
recognized that while a petitioner who “presented a particular
claim” would not be barred from later “develop[ing]
additional facts supporting that particular claim,” it did not
mean that “a petitioner who presented any ineffective
                   GULBRANDSON V . RYAN                        29

assistance of counsel claim below can later add unrelated
alleged instances of counsel’s ineffectiveness to [that] claim.”
Id. at 1056; see also Carriger v. Lewis, 971 F.2d 329, 333
(9th Cir. 1992) (en banc) (holding that an ineffective
assistance claim for failure to vigorously cross-examine a
witness did not exhaust ineffective assistance claims directed
to other independent omissions by counsel).

    Moorman guides our analysis here. Before the state post-
conviction court and state supreme court, Gulbrandson’s only
claim for ineffective assistance relating to Dr. Blinder’s
testimony at sentencing was that counsel was ineffective for
not presenting Dr. Blinder’s opinions about Gulbrandson’s
state of mind at the time of the crime, as stated in
Dr. Blinder’s 1997 affidavit. Gulbrandson did not mention in
his state court briefing that defense counsel was also
ineffective for failing to present Dr. Blinder’s testimony on
rehabilitation. In fact, Gulbrandson did not raise this
“unrelated alleged instance[] of counsel’s ineffectiveness,”
Moorman, 426 F.3d at 1056, until his opening brief to this
court.

    Gulbrandson nevertheless argues that he placed the state
court on notice of this specific ineffective assistance claim
because it arises from Dr. Blinder’s same 1997 affidavit that
supports Gulbrandson’s other ineffective assistance claim
related to Dr. Blinder’s sentencing testimony. In other words,
he argues that the claim was fairly presented in state court
solely because the necessary facts were placed before the
court. But the mere submission of a relevant affidavit to a
state court is not sufficient to place that court on notice of all
potential constitutional challenges stemming from that
affidavit. See Koerner v. Grigas, 328 F.3d 1039, 1046–48
(9th Cir. 2003). In Koerner, we held that even though the
30                GULBRANDSON V . RYAN

factual basis for a claim was submitted to the state court, the
claim itself had not been fairly presented to the court because
the facts were used exclusively to support another claim. Id.
Thus, we made clear that a petitioner does not exhaust all
possible claims stemming from a common set of facts merely
by raising one specific claim.

     Accordingly, we conclude that Gulbrandson failed to
present to the state courts his ineffective assistance claim
based on counsel’s failure to recall Dr. Blinder at sentencing
to testify about Gulbrandson’s potential for rehabilitation. If
he were to do so now, the claim would be procedurally barred
because he failed to raise it “in [a] previous collateral
proceeding.” Ariz. R. Crim. P. 32.2(a)(3). Because this rule
provides an independent and adequate state basis for denying
relief, see Stewart v. Smith, 536 U.S. 856, 859–61 (2002), and
Gulbrandson does not argue that his state default can be
otherwise excused through a showing of cause and prejudice,
this claim is procedurally barred.

                             III

    Gulbrandson also argues that the district court abused its
discretion by denying him an evidentiary hearing on all the
previously analyzed ineffective assistance claims as well as
his claim that defense counsel was ineffective because he
failed to elicit an insanity opinion from Dr. Blinder.

    We consider Gulbrandson’s argument in light of the
Supreme Court’s recent clarification regarding the limited
roles evidentiary hearings play in federal habeas proceedings.
                     GULBRANDSON V . RYAN                             31

In Cullen v. Pinholster, the Supreme Court held that “review
under § 2254(d)(1) is limited to the record that was before the
state court that adjudicated the claim on the merits,” and thus
“evidence introduced in federal court has no bearing on
§ 2254(d)(1) review.”5 131 S. Ct. at 1398, 1400. Thus, for
claims that were adjudicated on the merits in state court,
petitioners can rely only on the record before the state court
in order to satisfy the requirements of § 2254(d). See id. at
1400 & n.7. This effectively precludes federal evidentiary
hearings for such claims because the evidence adduced during
habeas proceedings in federal court could not be considered
in evaluating whether the claim meets the requirements of
§ 2254(d). See id. at 1402 n.11 (“[Petitioner] has failed to
show that the [state court] unreasonably applied clearly
established federal law on the record before that court, which
brings our analysis to an end.”) (internal citations omitted).
We recognized this implication in Stokley v. Ryan, where we
held that Pinholster “directly bar[red]” a petitioner’s demand
for an evidentiary hearing on an ineffective assistance claim




   5
     Pinholster and the statutory text make clear that this evidentiary
limitation is applicable to § 2254(d)(2) claims as well. See § 2254(d)(2)
(allowing for habeas relief if the state court decision “was based on an
unreasonable determination of the facts in light of the evidence presented
in the State court proceeding.”) (emphasis added); Pinholster, 131 S. Ct.
at 1400 n.7 (comparing (d)(1) to (d)(2) and stating that (d)(1) “also is
plainly limited to the state-court record.”) (emphasis added).
32                    GULBRANDSON V . RYAN

because the new evidence could not be considered on habeas
review. 659 F.3d 802, 807 (9th Cir. 2011).6

    Pinholster and Stokley foreclose Gulbrandson’s demands
for evidentiary hearings in district court. His habeas claims
for ineffective assistance based on counsel’s alleged failures
(1) to call Gulbrandson to testify at the guilt stage and (2) to
develop Dr. Blinder’s state of mind opinions at sentencing
were adjudicated on the merits in state court proceedings. As
described previously, see supra at II.C and II.D, the state
court’s rejections of these claims were neither contrary to, nor
involved unreasonable applications, of Strickland. Thus,
Pinholster bars a habeas court from any further factual
development on these claims. Pinholster, 131 S. Ct. at 1411
n. 20. As a result, the district court did not abuse its
discretion by denying Gulbrandson’s request for an
evidentiary hearing regarding these claims. See Stokley,
659 F.3d at 809.

     We similarly affirm the district court’s denial of
Gulbrandson’s request for an evidentiary hearing regarding
his claim that counsel was ineffective for failing to elicit an
insanity opinion from Dr. Blinder. The state post-conviction
court rejected this claim on the merits, holding that because
Dr. Blinder was unwilling to render an opinion that
Gulbrandson was insane, counsel was not ineffective in
failing to obtain such an opinion. This decision was not

 6
   Because Pinholster was decided after the oral argument in Stokley and
“dramatically changed the aperture for consideration of new evidence,” we
alternatively held that petitioner was not entitled to an evidentiary hearing
under pre-Pinholster law. Stokley, 659 F.3d at 809–14. W e need not
conduct such alternative analysis here, where the parties have had
sufficient time to familiarize themselves with Pinholster, and discussed it
at oral argument.
                   GULBRANDSON V . RYAN                       33

contrary to or an unreasonable application of Strickland, nor
was it based on an unreasonable determination of facts.

    The state court’s determination that Dr. Blinder was
unwilling to testify that Gulbrandson was legally insane was
not an unreasonable determination of the facts. Neither Dr.
Blinder’s 1992 report nor his guilt phase testimony indicated
a willingness to provide such an opinion. Dr. Blinder’s
silence on the issue of legal insanity is corroborated by
State’s counsel’s statements to the trial judge during
Dr. Blinder’s testimony: “I’ve interviewed him. I’ve read his
reports” and have determined that “[Dr. Blinder] is not giving
an opinion as to the M’Naghten issue at the time of the
crime.”

     Defense counsel’s and Dr. Blinder’s post-conviction
affidavits provide further support for the state court’s
determination. Defense counsel’s affidavit states that
“[b]efore trial, Dr. Blinder repeatedly informed me that he
was unwilling to render an opinion that Mr. Gulbrandson was
M’Naghten insane at the time of the murder.” This is
consistent with Dr. Blinder’s 1997 affidavit, which states that
he would have testified that Gulbrandson’s ability “to
appreciate the nature and quality of his acts or to understand
right from wrong” was “significantly affect[ed].” This still
falls short of Arizona’s definition of legal insanity at the time
of trial, which required a showing that Gulbrandson did not
know the nature and quality of his actions or that what he was
doing was wrong. Ariz. Rev. Stat. § 13-502. Given this
record, the state post-conviction court reasonably applied
Strickland in holding that counsel was not ineffective for
failing to obtain an insanity opinion that Dr. Blinder was not
prepared to give. Thus, because Gulbrandson fails to meet
the demands of § 2254(d) on the record before the state court,
34                GULBRANDSON V . RYAN

the district court correctly denied an evidentiary hearing on
this claim.

    In sum, we conclude that the district court did not abuse
its discretion by denying Gulbrandson’s requests for
evidentiary hearings on his various ineffective assistance
claims.

                             IV

    In his state proceedings, Gulbrandson claimed that his
Eighth Amendment rights were violated when impermissible
victim impact evidence from Irene’s family members was
submitted to the sentencing judge. The Arizona Supreme
Court, which provided the last reasoned opinion on this issue,
rejected this claim because “trial judges are [assumed to be]
capable of focusing on the relevant sentencing factors and
ignore any ‘irrelevant, inflammatory, and emotional’
statements when making the sentencing decision.”
Gulbrandson, 906 P.2d at 599 (quoting State v. Bolton, 896
P.2d 830, 856 (Ariz. 1995)).

    Gulbrandson argues that the rejection of his claim was an
unreasonable application of Supreme Court precedent. He
points to Booth v. Maryland, 482 U.S. 496 (1987). In Booth,
the Supreme Court held that providing a jury with
information about (1) a victim’s “personal characteristics,”
(2) the “emotional trauma suffered by the family,” id. at
502–03, and (3) “family members’ opinions and
characterizations of the crime,” id. at 508, during the
sentencing phase of a capital murder trial violated the
defendant’s Eighth Amendment rights. Booth explained that
such information “can serve no other purpose than to inflame
the jury and divert it from deciding the case on the relevant
                     GULBRANDSON V . RYAN                              35

evidence concerning the crime and the defendant.” Id. This,
in turn, “create[d] a constitutionally unacceptable risk that the
jury may impose the death penalty in an arbitrary and
capricious manner.” Id. at 503.7 Gulbrandson claims that the
Arizona Supreme Court’s resolution of his claim was an
unreasonable application of Booth.

    We disagree. A state court’s decision is not contrary to or
an unreasonable application of Supreme Court precedent
unless that precedent “squarely addresses the issue” or gives
a “clear answer to the question presented” in the case before
the state court. Wright v. Van Patten, 552 U.S. 120, 125–26
(2008); see also Carey v. Musladin, 549 U.S. 70, 77 (2006);
John-Charles v. California, 646 F.3d 1243, 1248 (9th Cir.
2011) (explaining that the allegedly contravened Supreme
Court precedent must be “closely on point”). In other words,
“when a state court may draw a principled distinction
between the case before it and Supreme Court caselaw, the
law is not clearly established for the state-court case.”
Murdoch v. Castro, 609 F.3d 983, 991 (9th Cir. 2010) (en
banc).

    Such a “principled distinction” is present here: the
Supreme Court cases that Gulbrandson relies on, Payne and
Booth, involved a jury’s consideration of victim impact
evidence in capital sentencing. See Payne, 501 U.S. at 825
(“[A] State may properly conclude that for the jury to assess
meaningfully the defendant’s moral culpability and
blameworthiness, it should have before it at the sentencing


 7
   Booth was overruled in part by Payne v. Tennessee, 501 U.S. 808, 827
(1991), which retreated from a per se rule barring admissibility of victim
impact evidence regarding a victim’s personal characteristics and a
family’s emotional trauma.
36                GULBRANDSON V . RYAN

phase evidence of the specific harm caused by the
defendant.”) (emphasis added); Booth, 482 U.S. at 497 (“The
question presented is whether the Constitution prohibits a jury
from considering a ‘victim impact statement’ during the
sentencing phase of a capital murder trial.”) (emphasis
added).

    In this case, the challenged evidence was presented to a
judge. We previously recognized this distinction in Rhoades
v. Henry, 638 F.3d 1027 (9th Cir. 2011), where we held that
Booth’s concern that victim impact statements would
“inflame the jury” is “not the same when . . . a judge does the
sentencing.” Id. at 1055. As we have explained, courts
“must assume that the trial judge properly applied the law and
considered only the evidence he knew to be admissible.”
Gretzler v. Stewart, 112 F.3d 992, 1009 (9th Cir. 1997);
Rhoades, 638 F.3d at 1055.

    Accordingly, because there is no Supreme Court case
“squarely address[ing] the issue” whether a judge is barred
from consideration of such victim impact evidence, it cannot
be said that the Arizona Supreme Court unreasonably applied
clearly established federal law when it denied Gulbrandson’s
Eighth Amendment claim. Van Patten, 552 U.S. at 125–26;
see also Knowles, 556 U.S. at 122.

                              V

    Gulbrandson also asks this court for authorization to file
a second or successive petition for a writ of habeas corpus in
the District of Arizona. See 28 U.S.C. § 2244(b)(3). We
deny his request.
                  GULBRANDSON V . RYAN                     37

                              A

    A petitioner seeking to bring a second or successive
habeas corpus application “must make a prima facie showing
that his application satisfies the requirements of § 2244(b).”
Pizzuto v. Blades, 673 F.3d 1003, 1007 (9th Cir. 2012);
28 U.S.C. § 2244(b)(3)(C). Section 2244(b)(1) requires
dismissal of claims “presented in a prior application.” For
claims not previously presented, section § 2244(b)’s
“demanding standard,” Bible v. Schriro, 651 F.3d 1060, 1063
(9th Cir. 2011) (per curiam), requires dismissal unless

       (A) the applicant shows that the claim relies
       on a new rule of constitutional law, made
       retroactive to cases on collateral review by the
       Supreme Court, that was previously
       unavailable; or

       (B) (i) the factual predicate for the claim
       could not have been discovered previously
       through the exercise of due diligence; and

       (ii) the facts underlying the claim, if proven
       and viewed in light of the evidence as a
       whole, would be sufficient to establish by
       clear and convincing evidence that, but for
       constitutional error, no reasonable factfinder
       would have found the applicant guilty of the
       underlying offense.

28 U.S.C. § 2244(b)(2). Gulbrandson’s application does not
rest on a “new rule of constitutional law,” so § 2244(b)(2)(A)
is not applicable. Thus, to the extent Gulbrandson’s proposed
second or successive habeas petition raises claims not
38                GULBRANDSON V . RYAN

previously presented, he “must make a prima facie showing
of due diligence and actual innocence” as required by
§ 2244(b)(2)(B). Morales v. Ornoski, 439 F.3d 529, 531 (9th
Cir. 2006).

                               B

    Gulbrandson seeks to raise four claims based on a
February 2009 report authored by Richard Kolbell, a
neuropsychologist who examined Gulbrandson in May 2008.
Among other things, Dr. Kolbell’s report states that
Gulbrandson’s “neurocognitive test does reflect subtle,
discrete, and relatively mild abnormality with respect to . . .
impulse control.”       Thus, according to Dr. Kolbell,
Gulbrandson’s capacity to “control his behavior [at the time
of the murder] was significantly diminished, as a result of
mental illness and, quite possibly, organically based deficits.”
In addition to these diagnoses, Dr. Kolbell also noted that it
is “not possible to determine that point at which Mr.
Gulbrandson might have or could have known that Ms.
Katuran was, in fact, dead.”

    These statements form the centerpiece of the four claims
in Gulbrandson’s proposed second or successive petition.
Two of the claims in the petition are based on Gulbrandson’s
assertion that Dr. Kolbell’s report undermines the State’s
proof of premeditation, a required element for first-degree
murder, by demonstrating that Gulbrandson “could not and
did not premeditate” Irene’s murder due to his various
“neuropsychological and neurocognitive deficits.” The other
two claims in the proposed petition assert that Dr. Kolbell’s
opinion would have negated the aggravating circumstance
that the murder was committed in an especially heinous or
depraved manner due to Gulbrandson’s use of gratuitous
                  GULBRANDSON V . RYAN                      39

violence. We deny Gulbrandson’s application to file a second
or successive petition because these claims were either raised
in the previous habeas petition and are barred under
§ 2244(b)(1), or because they fail to meet § 2244(b)(2)(B)’s
requirements.

                              C

    We first address the two claims in Gulbrandson’s
proposed habeas petition that rely on the new mental health
diagnoses adduced in Dr. Kolbell’s report to challenge the
state court’s finding that the murder was premeditated. These
are not new claims: Gulbrandson similarly argued in his
previous habeas petition that the court’s finding of
premeditation was not supported by sufficient evidence. The
district court determined that this claim was procedurally
barred and that Gulbrandson could not establish any
exceptions to the bar.

    Although the challenge to the premeditation finding is not
new, Gulbrandson does present new evidence (Dr. Kolbell’s
report) as additional support for his claims. But a claim “is
successive if the basic thrust or gravamen of the legal claim
is the same, regardless of whether the basic claim is
supported by new and different legal arguments . . . [or]
proved by different factual allegations.” Babbit v. Woodford,
177 F.3d 744, 746 (9th Cir. 1999) (internal quotation marks
omitted); see also Pizzutto, 673 F.3d at 1008 (“[F]ederal
courts will not consider new factual grounds in support of the
same legal claim that was previously presented.”) (internal
quotation marks omitted). Here, Gulbrandson’s prior habeas
claim has the same “basic thrust or gravamen” as the two
claims he seeks to bring in a second petition, namely, that the
state court’s finding of premeditation was constitutionally
40                GULBRANDSON V . RYAN

erroneous. See Morales, 439 F.3d at 532 (denying claims in
a second or successive petition that were “predicated on the
same challenges [to the state court decision] that were
previously considered” by the court). Accordingly, we deny
Gulbrandson’s application as to these claims because they
were “presented in a prior application.” § 2244(b)(1).

                              D

    The two remaining claims in Gulbrandson’s proposed
petition challenge the state court’s finding that the murder
was committed in an especially heinous, cruel, or depraved
manner. He argues that because Dr. Kolbell stated it was
impossible to determine the point at which Gulbrandson
might have known Irene was dead, Gulbrandson could not
been guilty of using “gratuitous violence,” which is defined
under Arizona law as the infliction of excessive violence after
the defendant knew or should have known that the victim was
dead. State v. Bocharski, 189 P.3d 403, 421 (Ariz. 2008) (en
banc).

    These claims fail to meet the high standards of
§ 2244(b)(2)(B). First, Gulbrandson fails to make a prima
facie showing that he could not have previously discovered
the evidence in Dr. Kolbell’s report through the exercise of
due diligence. § 2244(b)(2)(B)(i). Gulbrandson’s diligence
is undermined by Dr. Kolbell’s report itself, which states that
“the mild deficits evident in the current examination could
have been identified, perhaps to a more prominent degree, at
the time of [Gulbrandson’s] initial adjudication, had
neuropsychological examination been undertaken at that
time,” (emphasis added). Thus, Gulbrandson’s own expert
confirms that this evidence could have been discovered at the
time of trial. Yet Gulbrandson did not obtain it until some
                  GULBRANDSON V . RYAN                       41

sixteen and a half years after the trial and some twelve years
after his state post-conviction proceedings. Because he
provides “no legitimate justification” for why he could not
obtain the information earlier, Gulbrandson has not
demonstrated the diligence required under § 2244(b)(2)(B)(i).
Morales, 439 F.3d at 533; see also Bible, 651 F.3d at 1064
(holding that a wait of ten years after an evidentiary request
could have been brought was not diligent).

    Second, Gulbrandson fails to make a prima facie showing
that “no reasonable factfinder would have found” that the
murder was committed in a heinous, cruel, or depraved
manner. § 2244(b)(2); see Pizzuto, 673 F.3d at 1010. A
reasonable factfinder could determine that his use of “several
knives, scissors, and a wooden salad fork” on Irene and the
“particularly gruesome, brutal, and protracted” fashion of the
murder, Gulbrandson, 906 P.2d at 601, 604, were sufficient
to show that Gulbrandson “should have known he had
inflicted a fatal wound but continued nonetheless to inflict
more violence,” Bocharski, 189 P.3d at 422 (explaining that
murders committed in a brief burst of rage with single
weapons were less likely to involve gratuitous violence and
citing Gulbrandson as an example to the contrary). This
“unchallenged evidence provides a sufficient basis on which
a reasonable factfinder could find [Gulbrandson] guilty” of
using gratuitous violence and thus committing the murder in
an especially heinous, cruel, or depraved manner. Pizzuto,
673 F.3d at 1009.

     Because Gulbrandson has not been able to demonstrate
either due diligence or actual innocence as to his claims that
were not presented in his first habeas petition, his application
to file a second or successive application for a writ of habeas
corpus is denied. This denial is “not [] appealable and shall
42                GULBRANDSON V . RYAN

not be the subject of a petition for rehearing or for a writ of
certiorari.” 28 U.S.C. § 2244(b)(3)(E); see also King v.
Trujillo, 638 F.3d 726, 733 (9th Cir. 2011).

                              VI

    The district court’s denial of Gulbrandson’s habeas
petition is AFFIRMED. His application to file a second or
successive habeas petition is DENIED.



D.W. NELSON, Senior Circuit Judge, concurring in part and
dissenting in part:

    I concur in the majority’s opinion in large part. My
central disagreement concerns the claim that defense counsel
failed to call Dr. Blinder during the penalty hearing to testify
about Gulbrandson’s state of mind at the time of the crime.
I would hold that the Arizona Supreme Court unreasonably
determined the facts in denying this claim and would remand
for an evidentiary hearing on that basis. Therefore, I
respectfully dissent.

    My colleagues deny Gulbrandson’s claim on the merits by
concluding that Gulbrandson was not prejudiced by counsel’s
decision not to recall Dr. Blinder at sentencing because the
evidence, if presented, would have been cumulative.
Majority at 24–26. I cannot agree. We cannot determine
whether Dr. Blinder’s 1997 declaration is cumulative of the
mental health evidence presented during the guilt phase of
                      GULBRANDSON V . RYAN                              43

trial, but it does not appear so.1 And a review of the record
before the post-conviction court raises many questions about
why counsel did not call Dr. Blinder during the sentencing
hearing, making suspect the post-conviction court’s
resolution of this claim without any evidentiary development.

    The post-conviction court had the following information
before it when it denied Gulbrandson’s petition: (1) Dr.
Blinder’s 1992 pre-trial report, which did not mention the
issue of M’Naghten insanity; (2) defense counsel’s pre-trial
statements to the trial court that Dr. Blinder would testify that
the petitioner was M’Naghten insane; (3) Dr. Blinder’s guilt
phase testimony, during which counsel did not ask about, nor
did Dr. Blinder testify to, M’Naghten insanity; (4) trial
counsel’s 1997 declaration that Dr. Blinder stated repeatedly
before trial that he was unwilling to opine that the petitioner
was M’Naghten insane at the time of the crime; and (5) Dr.


 1
     The majority excerpts portions of Dr. Blinder’s trial testimony to
show that the opinions offered in his 1997 declaration were “essentially
the same as the testimony adduced at trial.” Majority at 24–25. This post-
hoc analysis troubles me for two reasons. First, even with Dr. Blinder’s
1997 affidavit before us, we cannot know whether the testimony he would
actually have offered during the sentencing phase would have been
cumulative of his trial testimony. Second, as a court of appeal, we are
poorly situated to determine whether Dr. Blinder’s 1997 affidavit is
cumulative of his 1992 testimony— particularly without the benefit of
expert opinions. The majority finds the “cumulative nature of the 1997
affidavit” to be “readily apparent”; I think it quite otherwise. Majority at
24. But in any case, determining the salience of the distinctions between
the opinions Dr. Blinder expressed in his 1992 testimony and report and
those he would have expressed if he had been recalled at sentencing is the
province of mental health experts, which highlights the core of my
objection: that the state court denied this claim without holding an
evidentiary hearing or making the factual determinations necessary to
resolve it.
44                 GULBRANDSON V . RYAN

Blinder’s 1997 declaration stating that he was willing, both at
the time of trial and in 1997, to testify that the petitioner’s
mental illness significantly affected his ability to appreciate
the nature and quality of his acts or to distinguish right from
wrong, and that the petitioner was unable to conform his
conduct to societal norms.

     The post-conviction court denied Gulbrandson’s
ineffective assistance of counsel claim concerning counsel’s
failure to call Dr. Blinder at sentencing without an evidentiary
hearing. The court reasoned that the mental health evidence
presented during the guilt phase—that Gulbrandson had
possibly experienced a dissociative/fugue state and suffered
from bipolar disorder, alcoholism and a personality
disorder—was before the trial court during the sentencing
phase and did not need to be presented again. The state court
also concluded that defense counsel believed at the time of
trial that Dr. Blinder was unwilling to offer any testimony
other than what he had put in his pre-trial report or testified
to at trial, and thus that counsel’s failure to elicit additional
evidence at sentencing about petitioner’s mental state was not
ineffective assistance. The post-conviction court also held
that there had been no prejudice.

    The state court did not deny this ineffective assistance of
sentencing counsel claim in a vacuum, however. The court
also denied Gulbrandson’s guilt-phase claim that trial counsel
failed to elicit testimony that would have supported an
insanity defense. In so doing, the court made a factual
determination relevant to Gulbrandson’s sentencing claim:
The court concluded that even if Dr. Blinder had been willing
to testify in 1997 that petitioner may have been M’Naghten
insane at the time of the crime, he was not willing to offer
that testimony at the time of trial. In reaching this
                      GULBRANDSON V . RYAN                              45

conclusion, the state court relied on Dr. Blinder’s 1992 pre-
trial report, which did not mention M’Naghten insanity.

     But the post-conviction court also had before it Dr.
Blinder’s 1997 declaration, in which the doctor stated that he
was willing to testify in 1997 and at the time of trial that
Gulbrandson was “suffering from . . . mental illnesses . . . that
would significantly affect his ability to appreciate the nature
and quality of his acts or to understand right from wrong,”
and that he “was unable to conform his conduct to societal
norms because of his mental disability.” This testimony may
have been insufficient to establish the version of M’Naghten
insanity in effect in Arizona at the time of trial.2 But the
opinion expressed in Dr. Blinder’s 1997 affidavit comes
awfully close to the M’Naghten insanity standard, and surely
would have been probative evidence at sentencing. See Ariz.
Rev. Stat. § 13-703 (1991) (listing as a statutory mitigating
factor “[t]he defendant’s capacity to appreciate the
wrongfulness of his conduct or to conform his conduct to the
requirements of law was significantly impaired, but not so
impaired as to constitute a defense to prosecution.”). Yet the
post-conviction court inexplicably failed to mention it. That
is, the state court resolved the claim by relying on the absence
of a reference to M’Naghten insanity in Dr. Blinder’s 1992
pre-trial report, while completely ignoring Dr. Blinder’s 1997
affidavit, which both averred that Gulbrandson suffered a
mental impairment very similar to M’Naghten insanity and

  2
     Arizona law required a defendant asserting a M’Naghten insanity
defense to prove that he was actually unable to understand the quality of
his acts, not just significantly impaired in his ability to do so. See Ariz.
Rev. Stat. § 13-502 (1991) (stating that M’Naghten insanity requires a
showing that a person who was suffering from a mental disease or defect
did “not know the nature and quality of the act, or if such person did
know, that such person did not know that what he was doing was wrong”).
46                GULBRANDSON V . RYAN

stated explicitly that Dr. Blinder was willing to offer that
opinion at the time of trial. I find this conclusion not just
unreasonable but utterly baffling.

    My reading of the record convinces me that the post-
conviction court implicitly adopted trial counsel’s assertion
that Dr. Blinder was unwilling to offer the testimony in his
1997 declaration at the time of trial. That finding, of course,
is flatly belied by Dr. Blinder’s 1997 affidavit. Hence, in
denying Gulbrandson’s claim of ineffective assistance of
sentencing counsel, the state court must have done one of two
things: either it (1) ignored parts of Dr. Blinder’s 1997
affidavit entirely or (2) determined, without an evidentiary
hearing, that trial counsel’s 1997 declaration was more
credible than Dr. Blinder’s conflicting 1997 declaration. In
either case, the court’s finding was objectively unreasonable.
It was unreasonable if the post-conviction court ignored Dr.
Blinder’s 1997 declaration, and it was equally unreasonable
if the Court implicitly made an adverse credibility
determination or resolved the factual dispute in the warden’s
favor without any evidentiary development.

    The state court’s decision is particularly problematic
because there is reason to doubt Gulbrandson’s trial counsel’s
version of the facts. The post-conviction court did not
mention, and perhaps did not notice, that trial counsel’s
statements are internally contradictory. Before trial, counsel
informed the trial court that the defenses were insanity and
absence of intent, that Dr. Blinder examined Gulbrandson “to
determine if, in fact, he was M’Naghten insane at the time of
the event,” and that trial counsel “would expect” Dr.
Blinder’s testimony to relate to M’Naghten insanity. That
statement to the trial judge in 1992 contradicts counsel’s 1997
declaration that Dr. Blinder repeatedly informed trial counsel
                  GULBRANDSON V . RYAN                       47

that he was unwilling to render an opinion that Gulbrandson
was M’Naghten insane at the time of the murder. This
glaring inconsistency calls counsel’s credibility into question,
and the post-conviction court’s failure even to address the
inconsistency is further evidence that it erred.

    However it arrived at its conclusion that Dr. Blinder had
nothing useful to add to the sentencing phase, the post-
conviction court unreasonably determined the facts. Even
though “we must be particularly deferential to our state-court
colleagues,” I remain “convinced that an appellate panel,
applying the normal standards of appellate review, could not
reasonably conclude that the finding is supported by the
record.” Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.
2004). In my view, “any appellate court to whom [these
defects were] pointed out would be unreasonable in holding
that the state court’s fact-finding process was adequate.” Id.
The state court “overlooked or ignored evidence” that was
“highly probative and central to petitioner’s claim,” which
“fatally undermine[d] the state fact-finding process,
render[ing] the resulting finding[s] unreasonable.” Id. at
1001.

    Because I believe that the state court made an
unreasonable determination of the facts, I also believe that its
decision is not entitled to deference and that this claim
presents a rare instance in which Gulbrandson is entitled to
submit new evidence in federal court. See Cullen v.
Pinholster, 131 S. Ct. 1388, 1401 (2011). Rather than resolve
this claim on the merits, as the majority does, I would remand
for an evidentiary hearing.

   For these reasons, I respectfully dissent.
