                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


JONATHAN LEE GENTRY ,               No. 09-99021
       Petitioner-Appellant,
                                      D.C. No.
             v.                  2:99-CV-00289-RSL

STEPHEN SINCLAIR,                 ORDER AND
       Respondent-Appellee.     AMENDED OPINION


     Appeal from the United States District Court
       for the Western District of Washington
      Robert S. Lasnik, District Judge, Presiding

              Argued and Submitted
        November 17, 2011—Portland, Oregon

              Filed August 28, 2012
             Amended January 15, 2013

     Before: Raymond C. Fisher, Richard A. Paez,
        and Richard R. Clifton, Circuit Judges.

              Opinion by Judge Clifton
2                      GENTRY V . SINCLAIR

                           SUMMARY*


                Habeas Corpus/Death Penalty

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

    The panel first determined that Gentry had exhausted his
claim that counsel provided ineffective assistance by failing
to present mitigating evidence at sentencing, and that the
claim was not procedurally defaulted because the Washington
Supreme Court adjudicated it on the merits. The panel then
held that the state court’s denial of the claim–because
counsel’s performance was not deficient–was not an
unreasonable application of clearly established federal law or
based on an unreasonable determination of the facts.

    The panel next held that Gentry did not properly exhaust
certain claims under Brady v. Maryland, 373 U.S. 83 (1963),
and Napue v. Illinois, 360 U.S. 264 (1959), and that there was
no cause to excuse the subsequent procedural default.

    Addressing Gentry’s exhausted Napue claim that the state
knew that a witness lied about receiving a benefit for his
testimony, the panel held that the state court erroneously
found that the prosecution did not know that the witness had
received a benefit, but there was no reasonable likelihood that
the false testimony could have affected the judgment because
the witness’ credibility was called into question throughout

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

the trial and there was other evidence supporting the
conviction.

    Addressing Gentry’s exhausted Brady claims that: 1) the
prosecution failed to disclose that a jailhouse witness was a
paid informant, and 2) the lead detective had been fired from
a previous job for misconduct and had lied to obtain search
warrants in other cases, the panel held that this information
was not material so as to require disclosure under Brady.

     The panel also rejected three other claims that trial
counsel was ineffective by: 1) failing to conduct an
investigation that would have uncovered the same
impeachment evidence supporting the Brady claims, 2)
failing to rebut the prosecution’s theory of how the crime
occurred, and 3) failing to present a statistical expert to
challenge the state’s DNA probability statistics.

    The panel held that the admission of victim impact
evidence under Payne v. Tennessee, 501 U.S. 808 (1991), at
the penalty phase did not violate the Ex Post Facto Clause or
due process, because the change in evidentiary rules did not
alter the elements of the crime or requirements for conviction.

     The panel held that the trial court’s exclusion of a juror
during death qualification did not contravene federal law by
permitting the exclusion on a broader basis than the
“substantial impairment” standard allowed in Witherspoon v.
Illinois, 391 U.S. 510 (1968), and Wainright v. Witt, 469 U.S.
412 (1985).
4                   GENTRY V . SINCLAIR

                         COUNSEL

Timothy K. Ford (argued), MacDonald Hoague & Bayless;
Rita J. Griffith, Seattle, Washington, for Petitioner-Appellant.

Paul D. Weisser (argued), Gregory J. Rosen, Office of the
Attorney General, Olympia, Washington, for Respondent-
Appellee.


                           ORDER

    This court’s opinion, filed August 28, 2012, is amended
as follows:

    1. On page 9871 of the slip opinion, replace the second
full paragraph, before the indented quotation, with the
following:

           At the time of the murder, Jonathan Lee
       Gentry was free on bail and awaiting trial on
       a charge of first degree rape. He was staying
       at his brother’s home near the golf course.
       Witnesses reported seeing a man on the golf
       course trail at about the time of the murder.
       Their descriptions led to an investigation
       involving Gentry, which the Washington
       Supreme Court described as follows:

    2. On page 9872, replace the first sentence of the
paragraph that begins on the bottom of the page and extends
to the next page, with the following sentence:
                    GENTRY V . SINCLAIR                     5

           Additionally, the State introduced
       scientific evidence linking Gentry to a hair
       found on the victim.

    With the opinion as amended, the Appellant’s petition for
panel rehearing and petition for rehearing en banc, filed
October 2, 2012, is denied. The full court has been advised
of the petition for rehearing and rehearing en banc and no
judge has requested a vote on whether to rehear the matter en
banc. See Fed R. App. P. 35; 9th Cir. R. 35-1 & advisory
committee note 2. No subsequent petitions for rehearing,
rehearing en banc, or rehearing before the full court may be
filed.



                         OPINION

CLIFTON, Circuit Judge:

    Jonathan Lee Gentry was convicted in a Washington state
court of aggravated first degree murder, with a finding of the
aggravating circumstance of committing the murder to protect
or conceal the identity of a person committing a crime, and
was sentenced to death. The Washington Supreme Court
affirmed the conviction and sentence and the United States
Supreme Court denied Gentry’s petition for certiorari. State
v. Gentry (“Gentry”), 888 P.2d 1105, 1156 (Wash.), cert.
denied, 516 U.S. 843 (1995). Subsequently, the Washington
Supreme Court denied Gentry’s petition for post-conviction
relief. In re Personal Restraint Petition of Jonathan Lee
Gentry (“Gentry PRP”), 972 P.2d 1250, 1271 (Wash. 1999).
Through several orders, the district court denied Gentry’s
6                   GENTRY V . SINCLAIR

petition for a writ of habeas corpus under 28 U.S.C. § 2254,
and he appeals that denial to us.

    One of Gentry’s habeas claims is that his trial counsel was
ineffective at the penalty phase for failing to investigate
Gentry’s psychological history and consequently failing to
present mitigating evidence of dysfunction within that
history. The district court determined that this claim was not
exhausted before the Washington Supreme Court and,
ultimately, that the claim was procedurally defaulted. We
disagree with this conclusion of the district court and hold
that Gentry exhausted this claim. We also hold that the
Washington Supreme Court adjudicated this claim on the
merits. We nevertheless affirm the district court’s denial of
habeas relief on this claim because the Washington Supreme
Court’s disposition of the claim was not an unreasonable
application of clearly established federal law or based on an
unreasonable determination of the facts.

    We are not persuaded by the other arguments Gentry sets
forth. Thus, we affirm the denial of habeas relief on those
claims as well.

I. Background

    The body of 12-year-old Cassie Holden was found near a
footpath just off of the main trail in a wooded area, adjacent
to a golf course in Bremerton, Washington, on June 15, 1988.
The victim had been missing since she had gone on a walk in
the area two days earlier. She had just arrived in Bremerton
on June 11 to spend the summer with her mother, although
she resided in Pocatello, Idaho, with her father and
stepmother.
                    GENTRY V . SINCLAIR                      7

    The autopsy revealed that the victim was struck in the
head with a blunt object 8 to 15 times, and that one of those
blows was the cause of death. A 2.2-pound rock was found
at the crime scene and believed to be the murder weapon.
Although her clothing was partially removed, the autopsy did
not conclusively show any evidence of sexual assault.

    At the time of the murder, Jonathan Lee Gentry was free
on bail and awaiting trial on a charge of first degree rape. He
was staying at his brother’s home near the golf course.
Witnesses reported seeing a man on the golf course trail at
about the time of the murder. Their descriptions led to an
investigation involving Gentry, which the Washington
Supreme Court described as follows:

           In August of 1988, the Kitsap County
       Prosecutor obtained a search warrant for the
       Gentry residence that produced clothing
       similar to that worn by the man seen on the
       golf course. One pair of shoes had been
       recently cleaned, but there were bloodstains
       on the shoelaces. The prosecutor also
       obtained a warrant for hair and blood samples
       from Gentry and the trial court appointed
       counsel to represent him in connection with
       the hair and blood testing. Over defense
       counsel’s objection, the blood samples and a
       “Negroid” hair found on Cassie’s body were
       subjected to several types of testing, including
       DNA tests. . . .

          The forensics tests took many months to
       complete. While awaiting their results, Gentry
       was tried and convicted on the pending rape
8                    GENTRY V . SINCLAIR

        charge and transferred from the Kitsap County
        Jail to the prison at Shelton. In September of
        1989, jail inmate Brian Dyste told authorities
        Gentry made incriminating statements while
        they were both in the county jail. Another
        inmate, Tim Hicks, subsequently reported
        additional incriminating statements Gentry
        allegedly made after his transfer to Shelton.
        Leonard Smith, who was also at Shelton at the
        time, confirmed Hicks’ allegation.

Gentry PRP, 972 P.2d at 1254.

    The State ultimately charged Gentry with first degree
felony murder and first degree premeditated murder, and the
State gave notice of its intent to seek the death penalty. As to
the charge of premeditated murder, the State alleged three
aggravating circumstances to support the death penalty: (1)
the murder was committed to conceal the commission of a
crime; (2) the murder was committed to conceal the identity
of a person committing a crime; and/or (3) the murder was
committed during the course or furtherance of a sexual
assault.

    At trial, the State relied on scientific evidence linking the
victim with blood found on Gentry’s shoe. The tests
excluded Gentry and his brother as the source of the blood.
The forensic scientist testified that only 0.18 percent of the
Caucasian population would have blood matching all of the
characteristics examined in the investigation. The victim’s
blood matched all of the characteristics of the blood taken
from Gentry’s shoe.
                    GENTRY V . SINCLAIR                       9

    Additionally, the State introduced scientific evidence
linking Gentry to a hair found on the victim. The forensic
scientist testified that one hair found on the victim was
microscopically similar to the arm hair of Gentry and his
brother Edward. At the time of the murder Gentry was living
at his brother’s home, while his brother was at sea with the
Navy. The scientist testified, however, that the evidence did
not establish that the hairs came only from either Gentry or
his brother; the hair could match any other African-American
individual with similar hair characteristics. The scientist also
testified that some other hairs found on the victim’s thigh and
shoe did not come from Gentry or his brother Edward.

    The State also introduced testimony linking Gentry to the
area where the victim’s body was found. Three witnesses
testified to seeing an African-American man in the area of the
murder scene around the time that the victim disappeared.
The first two witnesses, a mother and daughter, testified that
they saw a man walking past their home, a short distance
from where Gentry was living, toward the golf course. The
mother later identified the man she saw as Gentry. The third
witness testified seeing an African-American man who
matched the description given by the mother and daughter
standing just off the main trail adjacent to the golf course.

    The State called inmates Dyste, Smith, and Hicks to the
stand, all of whom testified about incriminating statements
Gentry made to them while in prison, consistent with
statements they had previously given to authorities. Dyste
testified that a card game he was playing with Gentry was
interrupted when Gentry was called to speak with
investigators. Upon Gentry’s return, Dyste testified that
Gentry said “They found my hair on the bitch,” and that
Gentry admitted to killing the victim, but stated that “they
10                  GENTRY V . SINCLAIR

can’t prove it.” Dyste further testified that he was not given
or promised anything for testifying and that he did not know
Hicks or Smith.

    Smith testified that while playing cards with Gentry in
prison, Gentry unexpectedly stated, “I killed my girlfriend,”
and that Gentry proceeded to call her a “bitch.” Smith
testified that Hicks was also present during this statement,
along with a few other inmates who were playing cards
together. Smith further stated that Gentry later made similar
statements in a conversation between just Smith and Gentry.
Smith was cross-examined on his criminal history and his
failure to come forward with Gentry’s confession until a year
after it happened.

    Hicks, the last of the three inmates to testify, described a
similar statement Gentry made while playing cards with
several other inmates, including Smith. Hicks also stated that
Gentry referred to the victim as a “bitch.” The cross-
examination of Hicks included questions about his substantial
criminal history, and specifically addressed his conviction for
perjury. Hicks stated in both direct and cross-examination
that he was not given or promised anything for his testimony.

    The jury found Gentry guilty of both felony murder and
premeditated murder. The jury also found that Gentry
committed the murder to protect or conceal the identity of a
person committing a crime, an aggravating circumstance
subjecting Gentry to the possibility of the death penalty. The
jury did not find that the remaining two aggravating
circumstances were proven beyond a reasonable doubt.
                        GENTRY V . SINCLAIR                           11

    Prior to the penalty phase, but after the guilt phase, the
Supreme Court decided Payne v. Tennessee, 501 U.S. 808
(1991), which removed the federal constitutional bar to the
admission of victim impact evidence. As a result, the trial
court determined that the victim’s father would be permitted
to make a statement for the penalty phase jury’s
consideration. [ER 248; SR 13568.] The victim’s father was
the State’s only penalty phase witness and was briefly
questioned about the victim’s personality, hobbies, and
aspirations, as well as the impact of her death on him. The
defense did not cross-examine him.

    The defense called six penalty phase witnesses: Gentry’s
mother, childhood friend, stepfather, two brothers, and
cousin. Each testified briefly about Gentry’s personality and
disposition. The testimony included the fact that, at a young
age, Gentry had witnessed his mother kill his father in
self-defense, but none of the witnesses testified about the
impact of the experience on Gentry, other than to say he
never spoke about it.

    At the end of the penalty phase, the jury, after deliberating
for approximately five and a half hours, found insufficient
mitigating factors to merit leniency and returned with its
verdict for the death penalty.

    On direct appeal of his conviction and sentence, Gentry
raised ten issues to challenge the finding of guilt and another
nine issues to challenge his death sentence.1 The Washington


  1
     Related to the claims he later raised in his state personal restraint
petition and federal habeas petition, Gentry argued that: racism permeated
the trial; victim impact evidence was improperly allowed at the penalty
phase; two prospective jurors were improperly excused as part of the death
12                      GENTRY V . SINCLAIR

Supreme Court upheld Gentry’s conviction and sentence.
Gentry, 888 P.2d at 1156. The United States Supreme Court
denied Gentry’s petition for a writ of certiorari. 516 U.S. 843
(1995).

    Gentry then sought collateral relief by filing a personal
restraint petition (“PRP”) before the Washington Supreme
Court. As he had been for both his trial and direct appeal,
Gentry was found to be indigent, and counsel was appointed
to represent him during the PRP proceedings. The
Washington Supreme Court set the deadline for the filing of
the PRP for six months from the appointment of counsel.

    Starting about three months before the deadline for the
PRP and continuing after the filing of the PRP, Gentry’s
counsel filed several discovery motions that suggested a
claim of ineffective assistance of counsel at the penalty phase
and sought funds for investigation of Gentry’s family
background and for appointment of a psychiatrist or
psychologist to examine Gentry. The first of these discovery
motions was filed on April 8, 1996, and requested funds for
the appointment of a licensed psychologist. Counsel attached
the declaration of Dr. Stephen Cummings, who asserted that,
after reviewing Gentry’s background, it was possible that
Gentry suffered from post-traumatic stress disorder and other
personality defects. The Washington Supreme Court denied
the motion without prejudice and specified that any refiling
should include an explanation for why the appointment of a



qualification process; and the failure to redact the trial judge’s name from
the judgment in Gentry’s prior conviction was unfairly prejudicial. The
W ashington Supreme Court rejected each of these challenges on the
merits.
                    GENTRY V . SINCLAIR                     13

psychologist was relevant to his claim of ineffective
assistance at the penalty phase.

    Counsel followed up quickly on April 22, 1996, with a
motion for appointment of an investigator and expert. The
motion asserted that an examination was necessary to support
the ineffective assistance of counsel claim because trial
counsel was aware of Gentry’s potential psychological
dysfunction and the trial court had granted funding and
appointed a psychologist to examine Gentry, but no
examination was ever conducted. The Washington Supreme
Court issued an order stating that it would decide this motion
“at the same time as the personal restraint petition” and that
the parties could file supplemental briefing on the issues
raised in the motion “at the same time the personal restraint
petition is filed.”

    Along with the psychiatric examination, Gentry’s PRP
counsel also sought funds, via a June 11, 1996, motion, to
investigate Gentry’s family history and child development,
given the preliminary information indicating that Gentry may
have suffered from learning disabilities and developmental
problems. Counsel reasserted that such an investigation was
in support of a claim of ineffective assistance for trial
counsel’s failure to conduct a complete investigation into
Gentry’s mental health and social background. The
Washington Supreme Court did not respond to this motion
directly until after the filing of the PRP, denying it at that
point as moot.

    Gentry filed the PRP on July 1, 1996, asserting, among
other claims, ineffective assistance of counsel for “failure to
investigate and present mitigating evidence at [the] penalty
phase proceedings.” Within the PRP, Gentry referenced
14                      GENTRY V . SINCLAIR

another discovery motion, filed concurrently with the PRP,
asking for funds to investigate Gentry’s social history and for
appointment of a psychologist or psychiatrist to examine
Gentry in support of the claim.2 This concurrent motion
referenced the previously filed discovery motions and sought
to amend the PRP to state an unequivocal claim of ineffective
assistance for failure to investigate Gentry’s mental health
and background, supported by evidence that Gentry was
never examined by a mental health expert before trial and that
trial counsel’s investigation into Gentry’s social background
was minimal. The Washington Supreme Court granted the
motion to amend the petition on October 20, 1997, but denied
the motions for funds for discovery. Subsequently, the
Washington Supreme Court denied Gentry’s PRP in its
entirety. Gentry PRP, 972 P.2d at 1271.

    Gentry then filed a petition in federal district court
seeking habeas relief pursuant to 28 U.S.C. § 2254. After a
hearing as to the exhaustion of claims raised in the federal
petition, the district court ruled that two of Gentry’s claims
were unexhausted before the Washington Supreme Court: (1)
the claim of ineffective assistance of counsel at the penalty
phase for counsel’s failure to investigate and present evidence
of Gentry’s social background and mental health; and (2) one
of the Brady and Napue claims related to potential evidence
of undisclosed benefits received by jailhouse witness Leonard

  2
    Relevant to issues raised on appeal, the PRP also asserted claims of:
violations under Brady v. Maryland, 373 U.S. 83 (1963), and Napue v.
Illinois, 360 U.S. 264 (1959), as to impeachment evidence related to
jailhouse witnesses Hicks and Dyste (and evidence of a conspiracy
between Hicks and Smith); ineffective assistance for failure to investigate
the background of jailhouse witnesses and for failure to utilize forensic
expert testimony; and state and federal constitutional violations for the
admission of victim impact testimony.
                    GENTRY V . SINCLAIR                     15

Smith for his testimony (“Smith claim”). The district court
later determined that those two claims were also procedurally
defaulted. The district court concluded there was no cause
for defaulting on the penalty phase ineffective assistance
claim, but ordered an evidentiary hearing as to cause for the
Smith claim.

    In preparation for the evidentiary hearing on the Smith
claim, the district court permitted Gentry’s counsel to depose
two Department of Corrections employees but did not grant
requests to depose a few other individuals. Following the
evidentiary hearing, the district court determined that Gentry
could not show cause for the procedural default of the Smith
claim.

    Gentry’s federal habeas petition also asserted Brady and
Napue violations as to withheld information about the other
two jailhouse witnesses and the lead detective. The
evidentiary hearing on the Smith claim was also used to
receive evidence on these Brady and Napue claims, which the
district court determined had been exhausted in state
proceedings. Following the evidentiary hearing, the district
court denied habeas relief as to all the remaining Brady and
Napue claims.

    In addition to the ineffective assistance claim mentioned
above, Gentry also asserted several other ineffective
assistance claims for failure to investigate and present expert
testimony on crime scene evidence and forensic findings on
the cause of death, failure to rebut the State’s statistical
evidence, failure to investigate the jailhouse witnesses and
detectives, failure to redact a judgment admitted into
evidence, and failure to adequately prepare, during voir dire
and at the penalty phase, for victim impact evidence.
16                      GENTRY V . SINCLAIR

Gentry’s habeas petition also asserted that admitting victim
impact testimony violated the Ex Post Facto and Due Process
clauses. The district court denied habeas relief on all of these
claims.

    Finally, Gentry’s habeas petition asserted that one
prospective juror, identified as Juror 22, was improperly
excluded during his trial. The district court denied Gentry’s
motion for summary judgment on this claim, and later, on
cross-motions on the issue, again denied Gentry’s motion for
summary judgment and granted the State’s motion for
summary judgment on the claim.

    Following disposition of all of the habeas claims, the
district court also denied Gentry’s motions for
reconsideration and for a new trial, or to amend judgment.
Gentry was granted a certificate of appealability on all of the
habeas claims described above.3

II. Discussion

    The Antiterrorism and Effective Death Penalty Act
(“AEDPA”), which applies to Gentry’s petition, mandates
that a federal court may not grant a writ of habeas corpus
based on any claim that was adjudicated on the merits by a
state court unless the state court decision “(1) resulted in a
decision that was contrary to, or involved an unreasonable


  3
    In his opening brief, Gentry also raised two uncertified issues. In
supplemental briefing on one potential issue for certification, Gentry
conceded that there is no “freestanding claim of race discrimination in this
Court or the District Court below” and consequently that the claim “is not
presently before this Court.” We deny certification for the uncertified
issues raised by Gentry.
                     GENTRY V . SINCLAIR                      17

application of, clearly established Federal law, as determined
by the Supreme Court of the United States; or (2) resulted in
a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d).

    After the original briefing in this case was completed, the
Supreme Court decided Cullen v. Pinholster, 131 S. Ct. 1388
(2011). This decision limits the scope of evidence that we
may consider for some of Gentry’s claims, specifically, some
of the evidence proffered for the first time as part of the
evidentiary hearing before the district court.            After
Pinholster, review of claims adjudicated on the merits under
AEDPA must be based only on “the record that was before
the state court that adjudicated the claim on the merits.” Id.
at 1398. The Court reiterated that AEDPA “demonstrate[d]
Congress’ intent to channel prisoners’ claims first to the state
courts.    ‘The federal habeas scheme leaves primary
responsibility with the state courts . . . .’” Id. at 1398–99
(citation omitted) (quoting Woodford v. Visciotti, 537 U.S.
19, 27 (2002) (per curiam)). Consequently, “evidence
introduced in federal court has no bearing on § 2254(d)(1)
review.” Id. at 1400.

    That limitation does not apply if a claim was not
adjudicated on the merits by the state court because, in that
event, the habeas claim is not subject to review under
§ 2254(d). Id. As a result, review of such claims is not
necessarily limited to the record before the state court and
may be supplemented as part of the federal habeas petition,
subject to § 2254(e)(2). Id. at 1401 (noting that because
§ 2254(d) only applies to claims adjudicated on the merits,
there are still areas for “discretion of federal habeas courts to
consider new evidence when deciding claims that were not
18                  GENTRY V . SINCLAIR

adjudicated on the merits in state court”); Stokley v. Ryan,
659 F.3d 802, 808 (9th Cir. 2011) (“If a petitioner presents a
claim that was not adjudicated on the merits by the state
courts, federal review is not necessarily limited to the state
record.”).

    Thus, the application of Pinholster’s state-record
limitation for § 2254(d) review is guided by first determining
whether the state court adjudicated the claim in question on
the merits. See Barker v. Fleming, 423 F.3d 1085, 1092 (9th
Cir. 2005). Where a claim is procedurally defaulted, it has
not been adjudicated on the merits and is not subject to
AEDPA deference. James v. Ryan, 679 F.3d 780, 804-05
(9th Cir. 2012).

    The district court ruled that two of Gentry’s claims were
unexhausted and procedurally defaulted: (1) ineffective
assistance of counsel for trial counsel’s failure to present
mitigating evidence of Gentry’s mental condition at the
penalty phase; and (2) Brady/Napue violations for evidence
regarding alleged benefits received by witness Leonard
Smith. We agree with the district court’s disposition of the
latter claim. As to the former claim, though, we disagree with
the district court’s determination and conclude that Gentry’s
claim of ineffective assistance of counsel for failure to
present mitigating evidence was both exhausted before the
Washington Supreme Court and adjudicated on the merits by
that court. However, we ultimately affirm on that claim
because we agree that habeas relief is not warranted under our
AEDPA review. We also affirm the denial of habeas relief on
all of Gentry’s other claims.
                     GENTRY V . SINCLAIR                      19

A. Ineffective Assistance for Failure To Present
   Mitigating Evidence of Mental Condition at the
   Penalty Phase

    1. Exhaustion

     After reviewing the record, including the many motions
and declarations filed before the Washington Supreme Court,
we disagree with the district court’s conclusion that Gentry
did not exhaust his claim of ineffective assistance based on
trial counsel’s failure to present mitigating evidence at the
penalty phase. The district court held that the mental health
claim was not factually developed and was thus unexhausted.
However, there was ample discussion in the filings before the
Washington Supreme Court to demonstrate that Gentry was
asserting the claim, that there was factual support for the
claim, and that he sought funds to further develop that factual
support.

    “[F]or purposes of exhausting state remedies, a claim for
relief in habeas corpus must include reference to a specific
federal constitutional guarantee, as well as a statement of the
facts that entitle the petitioner to relief.” Gray v. Netherland,
518 U.S. 152, 162-63 (1996); see O’Sullivan v. Boerckel,
526 U.S. 838, 842, 844 (1999) (concluding that “the state
prisoner must give the state courts an opportunity to act on
his claims” and holding that “[s]ection 2254(c) requires only
that state prisoners give state courts a fair opportunity to act
on their claims”). The federal claim is fairly presented if
raised in the petition itself, an accompanying brief, or another
similar document filed with that court. See Baldwin v. Reese,
541 U.S. 27, 32 (2004).
20                  GENTRY V . SINCLAIR

    The PRP unequivocally set out a federal claim of
ineffective assistance of counsel, invoking the Sixth
Amendment and the applicable standard under Strickland v.
Washington, 466 U.S. 668 (1984). The Washington Supreme
Court was thus alerted to a claim under a specific provision
of the United States Constitution. See Duncan v. Henry,
513 U.S. 364, 365-66 (1995). Subheading E to this claim
specifically stated an ineffective assistance claim for “Trial
Counsel’s Failure To Investigate And Present Mitigating
Evidence At Penalty Phase Proceedings.” The body under
this subheading briefly described Gentry’s dysfunctional
family background, as well as the likelihood that Gentry had
mental deficiencies. The PRP also stated, however, that
further factual support for this claim would come through
discovery that Gentry was at that time seeking to obtain,
specifically referring to the motions to amend and for
discovery funds, which were filed on the same day as the
PRP.

   The motions provided further factual allegations to
support the specific claim and gave the Washington Supreme
Court a fair “opportunity to pass upon and correct” the issue.
Baldwin, 541 U.S. at 29 (internal quotation marks omitted).
Most telling, the motions stated two factual allegations that
could entitle Gentry to relief on the claim: (1) trial counsel
never conducted an investigation into Gentry’s family
background; and (2) Gentry was never evaluated by a
psychiatrist or psychologist in preparation for trial.

    We thus hold that the PRP, coupled with the facts set
forth in the motions directly referenced by the PRP,
sufficiently exhausted the claim because it gave the
Washington Supreme Court an opportunity to remedy any
potential ineffective assistance by trial counsel at the penalty
                        GENTRY V . SINCLAIR                             21

phase. Id.; see Scott v. Schriro, 567 F.3d 573, 583 (9th Cir.
2009) (“All exhaustion requires is that the state courts have
the opportunity to remedy an error . . . .”).

     2. Procedural Default

    We also disagree with the district court’s conclusion that
this claim was procedurally defaulted.4 We conclude that the
Washington Supreme Court adjudicated the claim on the
merits.     “[A] state has ‘adjudicated’ a petitioner’s
constitutional claim ‘on the merits’ for purposes of § 2254(d)
when it has decided the petitioner’s right to post conviction
relief on the basis of the substance of the constitutional claim
advanced, rather than denying the claim on the basis of a
procedural or other rule precluding state court review of the
merits.” Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir.
2004).

   In its PRP decision, the Washington Supreme Court
decided the substance of the claims raised in the PRP together
with the issues raised in separate motions. The Court
emphasized that all of the motions had been “passed to the
merits.” Gentry PRP, 972 P.2d at 1254. Consistent with this


 4
   At different points in the briefing, both Gentry and the State have taken
inconsistent positions as to the procedural default of this claim, likely
motivated at least in part by the Supreme Court’s intervening decision in
Pinholster. Gentry earlier contended that “the W ashington Supreme Court
said in its postconviction opinion that M r. Gentry’s procedural motions
were ‘passed to the merits,’” but later argued that “this claim was neither
defaulted nor adjudicated on the merits.” Similarly, the State’s initial
position was that “[t]he record shows that Gentry failed to fairly present
those two claims in his personal restraint petition,” but more recently has
evolved to an argument that “Gentry’s claim was adjudicated on the merits
by the W ashington Supreme Court.”
22                  GENTRY V . SINCLAIR

description, the claims and the motions were not resolved by
the Washington Supreme Court on procedural grounds.
Specifically, the PRP decision evaluated Gentry’s stated
claim for “failing to present psychological evidence in
mitigation” under Strickland and held that the record “d[id]
not support Gentry’s current attorneys’ claim that trial
counsel neglected the issue [of obtaining a psychological
evaluation of Gentry prior to trial].” Id. at 1262, 1264. This
analysis resolved Gentry’s Sixth Amendment claim on a
substantive, not procedural, ground. See Lambert, 393 F.3d
at 969.

    Accordingly, our review of this exhausted claim that was
adjudicated on the merits is governed by AEDPA. As
discussed further below, the Washington Supreme Court did
not unreasonably apply federal law under Strickland in
denying Gentry’s ineffective assistance claim for failure to
present mitigating evidence.

     3. AEDPA Review

    In order to establish ineffective assistance of counsel, a
petitioner must prove both that his counsel was deficient and
that the deficiency caused prejudice. To establish deficient
performance, Gentry must show that counsel’s performance
“fell below an objective standard of reasonableness” based on
“the facts of the particular case [and] viewed as of the time of
counsel’s conduct.” Strickland, 466 U.S. at 688, 690. To
demonstrate prejudice, Gentry “must show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different.” Id. at 694. In reviewing the Washington Supreme
Court’s decision, we are guided by the principle that when a
petitioner raises a habeas claim under Strickland, he must
                    GENTRY V . SINCLAIR                      23

surmount two highly deferential standards of reasonableness.
See Harrington v. Richter, 131 S. Ct. 770, 788 (2011)
(“Federal habeas courts must guard against the danger of
equating unreasonableness under Strickland with
unreasonableness under § 2254(d).”). “[T]he question is not
whether counsel’s actions were reasonable. The question is
whether there is any reasonable argument that counsel
satisfied Strickland’s deferential standard.” Id.

    We conclude that the Washington Supreme Court’s
discussion of Gentry’s ineffective assistance claim for failure
to present mitigating evidence was reasonably resolved at the
deficient performance prong. Failure to meet either prong is
fatal to a claim and there is no requirement that the panel
“address both components of the inquiry if the defendant
makes an insufficient showing on one.” Strickland, 466 U.S.
at 697. Because we determine that it was not unreasonable to
dispose of this claim on the deficient performance prong,
there is no need to address the prejudice prong.

    The Washington Supreme Court’s analysis of the claim
indicates its conclusion that there was insufficient evidence
on the record to support the claim that Gentry’s trial counsel
was deficient with regard to investigating Gentry’s mental
state and presenting mitigating evidence at the penalty phase.
The court’s analysis specifically as to the claim for failure to
present mitigating psychological evidence states in full:

       Although Gentry now claims ineffective
       assistance of counsel at trial because no
       psychological expert evaluated him, the
       record shows trial counsel sought and
       obtained an order appointing psychologist Dr.
       Frederick Wise to evaluate Gentry in
24                 GENTRY V . SINCLAIR

       preparation for the penalty phase. No expert
       testified at trial, but nothing in the record
       suggests trial counsel failed to obtain the
       authorized evaluation. Both trial counsel have
       submitted affidavits in support of the PRP.
       Although counsel’s affidavits address many of
       the allegations in Gentry’s ineffective
       assistance claim, they say nothing about
       whether Dr. Wise evaluated Gentry or why no
       expert testimony was presented. Gentry
       himself is also silent on these questions. Nor
       has he submitted a statement from Dr. Wise.
       It is possible an evaluation was performed that
       provided no evidence useful to the defense or
       that counsel were concerned about opening
       the door to damaging rebuttal. In any event,
       the record before us does not support Gentry’s
       current attorneys’ claim that trial counsel
       neglected the issue.

Gentry PRP, 972 P.2d at 1264. To analyze deficient
performance, the Washington Supreme Court must have
“evaluate[d] the conduct from counsel’s perspective at the
time” and then “judge[d] the reasonableness of counsel’s
challenged conduct on the facts of the particular case.”
Strickland, 466 U.S. at 689–90. The Washington Supreme
Court reasonably looked to the only people with first-hand
knowledge regarding the lack of supporting evidence for
deficient performance: Gentry, his trial counsel, and Dr.
Wise.
                         GENTRY V . SINCLAIR                             25

    Trial counsel did in fact submit itemized affidavits in
support of most of the claims in Gentry’s PRP, but as the
Washington Supreme Court noted, those affidavits “say
nothing about” this particular claim. Gentry PRP, 972 P.2d
at 1264. Notably, although the affidavits did not mention this
specific ineffective assistance claim, they did discuss the
other ineffective assistance claims in detail, along with
Gentry’s other claims.5 Because “counsel is strongly
presumed to have rendered adequate assistance,” Strickland,
466 U.S. at 690, it was not unreasonable for the Washington
Supreme Court to conclude that trial counsel’s performance
was not deficient when Gentry had no evidence to indicate
why the failure to present evidence of Gentry’s psychological
condition was unreasonable under the circumstances,
particularly when trial counsel sought to support claims of
deficient performance for other ineffective assistance claims.6

      5
      The affidavits discussed Gentry’s claims for Brady and Napue
violations related to Dyste and Hicks, conspiracy between Hicks and
Smith, ineffective assistance of counsel for failure to consult with forensic
experts, ineffective assistance of counsel for failure to consult with a
statistics expert, ineffective assistance of counsel for failure to object to
an unredacted judgment, the improper admission of victim impact
testimony, and improper penalty phase jury instructions.

  6
    W e note, as the W ashington Supreme Court did, that Gentry’s PRP
counsel repeatedly claimed that trial counsel was deficient for not
conducting an examination of Gentry and presenting evidence of his
psychological state at the penalty phase. Gentry PRP, 972 P.2d at 1264
(“[T]he record before us does not support Gentry’s current attorneys’
claim that trial counsel neglected the issue.” (emphasis added)). PRP
counsel, and potential experts (none of whom had actually examined
Gentry at that time), repeatedly represented that Gentry was never
evaluated by a psychologist and that such an examination should have
been done. None of these statements, however, were made by anyone
with firsthand knowledge of why the examination or presentation of
evidence did not occur. Moreover, as noted above, trial counsel submitted
26                      GENTRY V . SINCLAIR

As we recently stated, “[t]here is no clear Supreme Court case
law always requiring a mental health investigation at the guilt
or penalty phase.” Gonzalez v. Wong, 667 F.3d 965, 991 (9th
Cir. 2011).

    Although Gentry contends that the Washington Supreme
Court should have permitted a psychological examination of
Gentry and an investigation into Gentry’s family background,
it was reasonable to deny Gentry’s motions to discover this
evidence because, at best, this evidence would have only
supported Gentry’s arguments for prejudice, the second prong
of Strickland. In other words, evidence of Gentry’s
psychological condition and family background could have
been used to argue for a reasonable probability of a different
outcome, but that evidence would not speak directly to
whether trial counsel had been deficient in their investigation
of Gentry’s mental and family history at the time of trial.

B. Procedural Default on the Smith Claim

    Gentry alleges violations of Brady v. Maryland, 373 U.S.
83 (1963), and Napue v. Illinois, 360 U.S. 264 (1959), related
to exculpatory evidence withheld by the State to impeach
jailhouse witness Leonard Smith, who purportedly received
benefits from the State of Oregon for his testimony (“Smith
claim”). We conclude that the claim was not properly
exhausted before the Washington Supreme Court and that
there is no cause to excuse the later procedural default of the
claim.


detailed affidavits which conspicuously avoided this claim alone. W e thus
cannot say, given our doubly deferential standard, that the W ashington
Supreme Court unreasonably rejected the claim because of the lack of
evidence to support the deficient performance prong.
                     GENTRY V . SINCLAIR                       27

    Exhaustion requires a statement of the “operative facts”
that support the federal legal theory giving rise to the claim.
Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008). In the
PRP, Gentry effectively admitted that there were no known
operative facts to support the Smith claim. The only
language in the PRP relating to Smith receiving any benefit
for his testimony came in this single sentence:

        Although counsel for Mr. Gentry has been
        unable to uncover evidence of benefits
        directly provided to L.S., it now appears that
        L.S. had a motive to assist T.H. and had
        previously agreed to do so.

This sole reference appeared under the heading of the claim
of Brady and Napue violations specifically as to Dyste and
Hicks, but not Smith. Notably, the statement itself referred
to the inability to discover any evidence of a Brady or Napue
violation as to Smith. A statement that admits a lack of
supporting facts does not equate to the required “statement of
facts that entitle the petitioner to relief” in order to exhaust a
claim. Scott, 567 F.3d at 582. Without any factual basis to
analyze a claim, the Washington Supreme Court was not
provided an opportunity to pass on the Smith claim.

    Consequently, the Washington Supreme Court in fact did
not address any withheld exculpatory evidence as to Smith
and only discussed the claims related to Dyste and Hicks.
Gentry PRP, 972 P.2d at 1260–63. The Washington Supreme
Court’s opinion only mentioned Smith in the context of
Gentry’s claim that Smith and Hicks conspired to frame
Gentry. Id. at 1260, 1262.
28                 GENTRY V . SINCLAIR

    We agree with the district court that Gentry cannot show
cause for the later procedural default of the unexhausted
Smith claim. The claim was procedurally defaulted one year
from the time of final judgment. Wash. Rev. Code
§ 10.73.090. An analysis of cause and prejudice for default
of a Brady claim mirrors the final two requirements of a
Brady claim itself:

       “[C]ause and prejudice” [for procedural
       default] “parallel two of the three components
       of the alleged Brady violation itself.”
       Corresponding to the second Brady
       component (evidence suppressed by the
       State), a petitioner shows “cause” when the
       reason for his failure to develop facts in
       state-court proceedings was the State’s
       suppression of the relevant evidence;
       coincident with the third Brady component
       (prejudice), prejudice within the compass of
       the “cause and prejudice” requirement exists
       when the suppressed evidence is “material”
       for Brady purposes.

Banks v. Dretke, 540 U.S. 668, 691 (2004) (citations
omitted).
                        GENTRY V . SINCLAIR                           29

    After holding an evidentiary hearing on the Smith claim,7
the district court applied the standard articulated in Banks and
concluded that Gentry could not show cause because “no
credible evidence has been produced that there was an
express or implicit agreement to provide assistance to Smith
in exchange for his testimony, or that Smith received any
benefit from his trial testimony–just speculation.” This
finding is not clearly erroneous.

    Gentry’s best factual support for the Smith claim focuses
on circumstantial evidence of changes to the treatment of
Smith’s criminal charges around the time of Smith’s
testimony in the Gentry trial. However, Smith consistently
explained, both on cross-examination at trial and after
Gentry’s conviction and sentence, that there was no
connection between that favorable treatment and his
testimony. Moreover, the deputy prosecutor also testified at
the evidentiary hearing that Smith never asked for or was
offered any type of benefit for his testimony. Because there
is no actual evidence of a deal for Smith’s testimony, the
district court’s account of the evidence is not “illogical,
implausible, or without support in inferences that may be
drawn from the facts in the record.” United States v.
Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc). The
failure to prove withholding of exculpatory evidence as to
Smith does not implicate Brady or Napue and thus does not
satisfy the parallel requirement to show cause for default.

 7
    The evidentiary hearing on the Smith claim was not incongruent with
the holding of Pinholster. As an unexhausted claim not adjudicated on the
merits, the Smith claim is not subject to § 2254(d) review. Pinholster,
131 S. Ct. at 1400. As a result, review of the claim is not necessarily
limited to the record before the state court and may be supplemented as
part of the federal habeas petition. See id. at 1401; Stokley, 659 F.3d at
808.
30                       GENTRY V . SINCLAIR

C. Hicks’s False Testimony

    The remaining claims were not procedurally defaulted
and were adjudicated on the merits by the Washington
Supreme Court. Consequently, although the district court
held an evidentiary hearing related to some of these claims,
any evidence that was not part of the state court record is not
reviewable under § 2254(d).8 Pinholster, 131 S. Ct. at 1400.

    Gentry’s remaining Napue claim9 contends that the State
knew that Hicks received a benefit for his testimony in the
Gentry trial, in the form of intervention with the parole board
to secure his parole, and that Hicks lied about not receiving
this benefit in his testimony. We agree with the district court
that Hicks’s false testimony was not material because his
credibility had been substantially called into question during
the course of his testimony at trial. A Napue claim requires
the petitioner to show that “(1) the testimony (or evidence)


 8
   For example, Gentry asserts additional support for his Brady claims by
pointing to the interview notes of deputy prosecutor Moran that did not
quote the jailhouse witnesses as ever using the word “bitch” in recounting
Gentry’s confession. He also points to the testimony of Hicks at the
evidentiary hearing that he received the benefit of a facility transfer for his
testimony. Both pieces of evidence first came to light in the federal
habeas proceeding. Moran’s notes were not part of the state record. As
to the prison transfer, the state record only included the transfer document
and transfer order themselves, which, as the W ashington Supreme Court
correctly found, only indicate that Hicks was transferred so he could go to
college. Gentry PRP, 972 P.2d at 1261. Moran’s notes and Hicks’s
evidentiary hearing testimony are not reviewable by this court pursuant to
Pinholster.

     9
    The district court held that there was no Napue claim as to Dyste
because there was no evidence that there was any false testimony. Gentry
does not challenge that ruling on appeal.
                        GENTRY V . SINCLAIR                             31

was actually false, (2) the prosecution knew or should have
known that the testimony was actually false, and (3) that the
false testimony was material.” United States v. Zuno-Arce,
339 F.3d 886, 889 (9th Cir. 2003).

     The Washington Supreme Court concluded that there was
insufficient evidence that Hicks received any real benefit
from testifying because the parole board iterated other
reasons for Hicks’s change in parole status. Consequently,
the Washington Supreme Court never reached the question of
the materiality of Hicks’s testimony. Gentry PRP, 972 P.2d
at 1261–62. The district court disagreed with the Washington
Supreme Court’s adjudication of the first Napue prong,
determining that Hicks did in fact receive a benefit, that the
State was aware of it, and that the information could have
been used to impeach Hicks.10 The district court concluded,
however, that Hicks’s credibility had been seriously
challenged at trial and thus the additional evidence of false
testimony was immaterial. The State does not challenge the
district court’s ruling, with which we agree, that Hicks’s
testimony that he received no benefit was false or that the




  10
     The district court thus held that the first two elements of a Brady
violation were also met. The only issue was whether the false testimony,
and withholding of the information about the benefit received, satisfied the
materiality requirements of Napue and Brady.
32                      GENTRY V . SINCLAIR

prosecution knew it was false.11 The only disputed issue is
that of materiality.

    AEDPA does not apply to our review of the materiality of
Hicks’s false testimony because, as noted above, the
Washington Supreme Court never reached an adjudication of
the materiality prong of the Napue claim. See Wiggins v.
Smith, 539 U.S. 510, 534 (2003) (acknowledging in the
Strickland context that “review is not circumscribed by a state
court conclusion with respect to prejudice, as neither of the
state courts below reached this prong”); Crittenden v. Ayers,
624 F.3d 943, 954 (9th Cir. 2010) (when a state court applies
the wrong legal standard, federal courts “must ‘resolve the
claim without the deference AEDPA otherwise requires’”).
Nevertheless, we conclude that there is no reasonable
likelihood that Hicks’s false testimony could have affected
the judgment of the jury. See Jackson v. Brown, 513 F.3d
1057, 1076 (9th Cir. 2008).

    Hicks’s credibility was called into question substantially
throughout his testimony at Gentry’s trial. During cross-
examination, defense counsel questioned Hicks extensively
as to the circumstances and details of his many past crimes,
including his conviction for perjury before the same trial
judge that presided over Gentry’s trial, and also his extensive


  11
     Hicks communicated to the deputy prosecutor that in exchange for his
testimony, he needed assistance with the parole board to ensure that he
was not put back into custody as a result of recent convictions. In
response, the deputy prosecutor contacted the parole board, who within
days reinstated Hicks parole. Yet on the stand, Hicks testified to the same
deputy prosecutor that he received nothing for his testimony. This
testimony was actually false, and the prosecution knew it was false. The
extent to which the W ashington Supreme Court determined otherwise was
an unreasonable finding of fact.
                    GENTRY V . SINCLAIR                    33

history of using false names. Hicks also admitted to seeing
reports about the murder on television and reading articles
about it in the newspaper before making his statement to the
authorities.

    The litany of crimes discussed in cross-examination
indicated that Hicks was not a trustworthy individual, and the
evidence that he received a benefit for his testimony only
would have been consistent with that well-supported notion.
Further, as Hicks had already been convicted of perjury once
(before the same judge) and had admitted to his use of a
variety of false identities, the jury was already under the
impression that Hicks was prone to lie at any point. On that
basis, even if Gentry had an opportunity to impeach Hicks as
to his false testimony regarding the denial of any benefit for
testifying, that opportunity would have been cumulative of
other impeachment evidence and thus immaterial. See
Heishman v. Ayers, 621 F.3d 1030, 1035 (9th Cir. 2010)
(holding that undisclosed Napue evidence is cumulative and
thus immaterial where the witness is already sufficiently
impeached).

    Additionally, Hicks’s testimony was not the only
evidence supporting the sole aggravating circumstance found
by the jury: that the victim was murdered to conceal the
identity of a person committing a crime. Although the jury
did not specifically identify the underlying crime that was
concealed, as the Washington Supreme Court observed, the
jury likely found that Gentry had committed sexual assault or
attempted sexual assault before the murder. See Gentry,
888 P.2d at 1126; Gentry PRP, 972 P.2d at 1255 n.1. Hicks
testified that Gentry spoke about having sex with the victim.
However, the State and Gentry’s forensic pathologist both
provided direct evidence to support the aggravating
34                  GENTRY V . SINCLAIR

circumstance through their agreement that the victim’s killer
intended a sexual assault, a point about which Gentry’s trial
counsel also conceded there was “no question in anybody’s
mind.” This expert testimony, coupled with the crime scene
evidence that the victim’s clothing was substantially
removed, exposing her genitalia, meant that Hicks’s
testimony was not needed to prove the aggravating
circumstance found by the jury.

    We therefore determine that Gentry did not suffer
prejudice at either phase as a result of Hicks’s false
testimony. At the guilt phase, the DNA, eyewitness, and
other circumstantial evidence were more than sufficient for a
jury to convict Gentry without considering the testimony of
the jailhouse witnesses. Sivak v. Hardison, 658 F.3d 898, 914
(9th Cir. 2011) (finding no Napue violation at the guilt phase
as a result of false testimony because “[t]here was simply too
much evidence placing [the defendant] at the scene of the
crime”); see Strickler v. Greene, 527 U.S. 263, 292-93 (1999)
(finding no prejudice on a Brady claim because even ignoring
the witness’s testimony, there was other evidence in the
record to support the conviction on its own).

     Similarly, at the penalty phase, because Hicks was in fact
exposed as a convicted liar and was questioned extensively
on his other fraudulent behavior and criminal activity, there
is no reasonable likelihood that a juror’s judgment could have
been affected by additional evidence revealing that Hicks
received a benefit for his testimony. See Sivak, 658 F.3d at
917 (concluding that there was a Napue violation at the
penalty phase because “this is not a case in which the witness
at issue had already been exposed to the factfinder as a liar”
(emphasis added)).
                    GENTRY V . SINCLAIR                      35

D. Other Brady Claims

    We are also not persuaded by Gentry’s arguments in
support of his other claims of Brady violations. The three
elements of a claim for a Brady violation are that “[t]he
evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; that
evidence must have been suppressed by the State, either
willfully or inadvertently; and prejudice must have ensued.”
Strickler, 527 U.S. at 281–82.

    Gentry asserts a Brady claim for the prosecution’s failure
to disclose the impeachment evidence that jailhouse witness
Dyste was a paid informant for the county police and
prosecutor’s office. It is undisputed that Dyste was a paid
informant for the same county detectives and prosecutors who
investigated and prosecuted Gentry. Gentry PRP, 972 P.2d
at 1261. This fact has impeachment value that would have
been favorable to Gentry in trial. See Strickler, 527 U.S. at
281–82. We agree with the Washington Supreme Court and
the district court, however, that Dyste’s informant status fails
to meet the final Brady element of materiality.

    Similar to the impeachment of Hicks discussed above,
Dyste’s credibility was significantly called into question on
the witness stand during Gentry’s trial.           On cross-
examination, Dyste admitted that although his testimony was
that Gentry stated, “[t]hey found my hair on the bitch,” Dyste
never actually quoted Gentry as using the word “bitch” in his
original tape-recorded statement to the authorities. Instead,
Dyste’s original statement simply recounted that Gentry had
said to Dyste that the authorities questioned Gentry about
finding hairs at the murder scene matching Gentry’s. Dyste
also admitted on the witness stand that he did not come
36                  GENTRY V . SINCLAIR

forward about Gentry’s confession until nine months after it
happened, and only after he was arrested on a burglary
charge. Defense counsel also attacked Dyste’s credibility
with questions about his various past crimes and with
questions directed at Dyste’s possible racial motives for
testifying and his propensity to use racial slurs.

    Viewing this evidence collectively, it was not
unreasonable for the Washington Supreme Court to conclude
that the jury would have returned the same verdict without the
testimony of Dyste or any of the other jailhouse witnesses.
Even if the impeachment evidence of Dyste’s informant
status had been presented to the jury, there was no
“reasonable probability of a different result.” Strickler,
527 U.S. at 291 (emphasis omitted). The cross-examination
of Dyste raised reasonable doubts as to his motivation for
testifying and there was sufficient impeachment evidence for
the jury to question seriously the veracity of Dyste’s original
statement. Thus, regardless of the failure to disclose the
informant status of Dyste, Gentry received “a trial resulting
in a verdict worthy of confidence.” Kyles v. Whitley,
514 U.S. 419, 434 (1995).

    Gentry also claims a Brady violation for withheld
evidence that purports to show that Detective Wright, the lead
detective in Gentry’s case, was fired from his previous job for
misconduct and that he had lied to obtain search warrants in
other cases. Although this information was favorable to
Gentry as it could have been used to impeach the credibility
of Detective Wright for truthfulness, see United States v.
Bagley, 473 U.S. 667, 676 (1985), we conclude that it was not
unreasonable to determine that this evidence was not
material.
                     GENTRY V . SINCLAIR                      37

     Tangential at best, and contained mostly in newspaper
articles, this evidence, even if used to impeach Detective
Wright at trial, would not have created a reasonable
probability of a different result either at the guilt or penalty
phases. United States v. Kerr, 981 F.2d 1050, 1052 (9th Cir.
1992) (stating that tangential evidence is not material because
it is insufficient to cast doubt on the ultimate result reached).
Moreover, Detective Wright’s questionable job performance
was not an area completely unknown to Gentry’s trial
counsel. As part of a motion to suppress, trial counsel had
examined Detective Wright, alleging that Wright lied in the
Gentry search warrant. See United States v. Agurs, 427 U.S.
97, 103 (1976) (observing that Brady material is “information
which had been known to the prosecution but unknown to the
defense”).

E. Other Ineffective Assistance of Counsel Claims

    We are similarly not persuaded by Gentry’s three other
grounds for ineffective assistance of counsel. As noted
above, a claim of ineffective assistance requires first, that
counsel’s performance “fell below an objective standard of
reasonableness” based on “the facts of the particular case
[and] viewed as of the time of counsel’s conduct.”
Strickland, 466 U.S. at 688, 690. The second required
element is prejudice, which is “a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence
in the outcome.” Id. at 694.

     First, Gentry asserts a claim of ineffective assistance for
trial counsel’s failure to conduct an investigation that would
38                  GENTRY V . SINCLAIR

have uncovered the same impeachment evidence he argues
for in support of his Brady claims discussed above.

     The district court was correct that Brady materiality and
Strickland prejudice are the same. See Bagley, 473 U.S. at
682; United States v. Spawr Optical Research, Inc., 864 F.2d
1467, 1472 n.6 (9th Cir. 1988). Gentry does not dispute that
if the information about the witnesses does not constitute a
Brady violation for lack of materiality, it will likewise not
support an ineffective assistance claim. Because we have
held that none of the impeachment evidence argued in
support of Gentry’s Brady claims is material, that analysis is
dispositive of the prejudice prong of an ineffective assistance
claim based on the same evidence.

    Second, Gentry seeks relief on the ground that trial
counsel failed to rebut the prosecution’s theory of how the
crime occurred. We conclude that the Washington Supreme
Court reasonably applied Strickland to this claim and did not
reach a decision contrary to it. As the district court pointed
out, trial counsel consulted with a medical expert, who
assisted them in rebutting many of the assertions of the
State’s crime scene expert. It was reasonable for the
Washington Supreme Court to determine that this was
sufficient performance under the circumstances.

    Further, the Washington Supreme Court’s determination
of no prejudice was reasonable. Gentry asserts that the crime
scene analyst would have testified that the fatal blows were
struck at a different location from what had been presented.
However, most relevant here is what the crime scene analyst
could not have rebutted. It was reasonable to conclude that
even if the crime scene analyst testified, there was still no
dispute that the victim was struck in the head with a rock 8 to
                          GENTRY V . SINCLAIR                               39

15 times and that one of these blows was the fatal blow.
Evidence changing just how those blows were administered
would not have resulted in a different outcome.

     Gentry’s final ineffective assistance claim is based on
trial counsel’s failure to present a statistical expert to
challenge the DNA probability statistics presented by the
State. We conclude that it was not unreasonable for the
Washington Supreme Court to find that trial counsel
dedicated substantial time and effort to rebutting the many
facets of the DNA evidence presented. As Gentry points out,
this was “the first Washington case in which DNA using
Polymerase Chain Reaction (PCR) and gamma marker (GM)
testing was offered into evidence in a criminal trial.”
Accordingly, there was not an established benchmark at the
time in terms of effective counsel related to DNA evidence.
Nonetheless, trial counsel spent substantial time preparing to
address the various issues raised by the DNA evidence. The
fact that counsel chose to focus their efforts on attacking the
reliability of DNA evidence, rather than on the statistical
probability of a match, seems “virtually unchallengeable”
because it is “a strategic choice[] made after thorough
investigation of law and facts.” Strickland, 466 U.S. at 690.

F. Victim Impact Evidence

    Gentry argues that the admission of victim impact
statements during the penalty phase violated constitutional
provisions barring ex post facto laws12 and also violated due


    12
       Contrary to arguments made by the State, Gentry sufficiently
presented his ex post facto claim for appeal. W hile 28 U.S.C.
§ 2253(c)(2) requires “a substantial showing of the denial of a
constitutional right,” it does not require the petitioner to list every specific
40                      GENTRY V . SINCLAIR

process. We address in turn each of these constitutional
challenges and conclude that the admission of victim impact
evidence at the penalty phase was not a constitutional
violation.

     1. Ex Post Facto

    Wash. Rev. Code § 7.69.030, which allowed victim
impact statements to be admitted at felony sentencing
hearings, was passed in 1985, prior to Gentry’s crime in
1988. However, in State v. Bartholomew, 683 P.2d 1079
(Wash. 1984), the Washington Supreme Court limited
nonstatutory aggravating factors for capital sentencing to the
“defendant’s criminal record, evidence that would have been
admissible at the guilt phase, and evidence to rebut matters
raised in mitigation by the defendant.” Id. at 1087. While
victim impact statements were not explicitly mentioned in the
decision, such statements were not allowed in capital
sentencing proceedings thereafter because they constituted
evidence falling into the nonstatutory aggravating factors
category. See id.; Gentry, 888 P.2d 1105, 1137 (1995)
(“[V]ictim impact evidence does not fit within any of the



article or amendment in order to preserve his right to appeal. The
W ashington Supreme Court discussed whether the admissibility of victim
impact statements violated the Ex Post Facto Clause, Gentry PRP,
972 P.2d at 1266–67, and the district court’s similar discussion
demonstrates that Gentry did not “deprive[] the district court of an
opportunity to address the merits of his claim.” Allen v. Ornoski, 435 F.3d
946, 960 (9th Cir. 2006). The certificate of appealability includes a claim
that “[t]he admission of victim impact testimony resulted in an unfair
sentencing proceeding.” W hile this does not address a specific clause of
the Constitution, the general language encompasses issues examined by
the district court, which includes the ex post facto prohibition.
                       GENTRY V . SINCLAIR                            41

categories of evidence held to be admissible during the
special sentencing phase of a capital case.”).

     The Washington Victims’ Rights Amendment, passed in
1989 after Gentry’s crime, would have changed
Bartholomew’s prohibition on victim impact statements. But
Supreme Court decisions in Booth v. Maryland, 482 U.S. 496
(1987), and South Carolina v. Gathers, 490 U.S. 805 (1989),
which held that the Eighth Amendment bars the admission of
victim impact evidence during the penalty phase of a capital
trial, precluded the Victims’ Rights Amendment from taking
effect. Later, when the Supreme Court issued its decision in
Payne v. Tennessee, 501 U.S. 808 (1991), the constitutional
bar was lifted and the Washington Victims’ Rights
Amendment provision permitting the admission of a victim
impact statement became effective.13 Payne was announced
after the guilt phase of Gentry’s trial but before the penalty
phase.

    Thus, the then-newly authorized admission of victim
impact statements in Washington was a result of both a state
legislative act and a judicial decision by the United States
Supreme Court. While the Ex Post Facto Clause applies
directly to legislative acts, the Fourteenth Amendment
extends Article 1, Section 10’s prohibition on ex post facto
laws to include judicial decisions. Bouie v. City of Columbia,



   13
      Gentry’s case is slightly different from cases in other circuits
discussing the Ex Post Facto Clause and Payne because the W ashington
Victims’ Rights Amendment was passed prior to the Payne decision
instead of after Payne. See Nooner v. Norris, 402 F.3d 801 (8th Cir.
2005), cert. denied, 547 U.S. 1137 (2006); Neill v. Gibson, 278 F.3d 1044
(10th Cir. 2001).
42                      GENTRY V . SINCLAIR

378 U.S. 347, 353–54 (1964). We examine the Victims’
Rights Amendment and the Payne decision together in
determining whether the admission of victim impact evidence
here presents an ex post facto problem. We conclude that
neither are violations of the Ex Post Facto Clause or of due
process under Bouie.

    The Ex Post Facto Clause bars the government from
passing laws that impose a new punishment or increase
punishment for a crime committed before passage of the law.
See Weaver v. Graham, 450 U.S. 24, 28 (1981); Collins v.
Youngblood, 497 U.S. 37, 43 (1990). The clause serves two
purposes: (1) to ensure that the legislature provides fair notice
to individuals regarding the effect of their actions, and (2) to
prevent the government from arbitrarily and vindictively
using its power to convict individuals. Weaver, 450 U.S. at
28–29.

    The Supreme Court has generally classified laws that
violate the Ex Post Facto Clause into four categories.14
Calder v. Bull, 3 U.S. 386, 390 (1798).15 The admission of

 14
    The first three categories do not apply to Gentry’s claim: (1) “Every
law that makes an action, done before the passing of the law, and which
was innocent when done, criminal; and punishes such action.”; (2) “Every
law that aggravates a crime, or makes it greater than it was, when
committed.”; and (3) “Every law that changes the punishment, and inflicts
a greater punishment, than the law annexed to the crime, when
committed.” Calder v. Bull, 3 U.S. 386, 390 (1798).

 15
    The Supreme Court recently stated that the Calder categories are still
the applicable categories in this context. Carmell v. Texas, 529 U.S. 513,
523–24 (2000). The decision in Carmell, although issued after the
decisions in Gentry and Gentry PRP, is consistent with the distinction of
earlier Supreme Court cases we apply here between impermissible ex post
facto laws affecting the sufficiency of evidence and permissible changes
                        GENTRY V . SINCLAIR                            43

victim impact statements potentially implicates Calder’s
fourth category: “Every law that alters the legal rules of
evidence, and receives less, or different, testimony, than the
law required at the time of the commission of the offence, in
order to convict the offender.” Id.16

    Only certain types of changes in the rules of evidence fall
into this fourth category. There is a violation under this
category when laws that require a minimum type or amount


allowing for additional evidence. Relevant to that discussion, the majority
in Carmell noted:

         Ordinary rules of evidence . . . . by simply permitting
         evidence to be admitted at trial, do not at all subvert the
         presumption of innocence, because they do not concern
         whether the admissible evidence is sufficient to
         overcome the presumption. Therefore, to the extent one
         may consider changes to such laws as “unfair” or
         “unjust,” they do not implicate the same kind of
         unfairness implicated by changes in rules setting forth
         a sufficiency of the evidence standard.

529 U.S. at 533 n.23 (emphasis in original).

  16
      W e are not persuaded by Gentry’s argument that the W ashington
Supreme Court and the district court failed to explicitly examine the four
categories of ex post facto laws as established by Calder. Our review
looks only to the reasoning and result of the decision, not to whether
Supreme Court cases were specifically discussed or cited. Early v.
Packer, 537 U.S. 3, 8 (2002). Regardless, the W ashington Supreme Court
in fact relied on its decision in State v. Ward, 869 P.2d 1062 (Wash.
1994), which considered the four categories from Calder as illustrations
of the “core concern” of the Ex Post Facto Clause. Id. at 1067 n.3. The
W ashington Supreme Court reasonably applied this core concern analysis
to the admission of victim impact evidence and did not merely assume that
evidentiary rule changes are not subject to the Ex Post Facto Clause.
Gentry PRP, 972 P.2d at 1267.
44                      GENTRY V . SINCLAIR

of evidence for conviction are changed by eliminating a type
of evidence or decreasing the amount of evidence needed for
conviction. However, an ex post facto problem does not arise
for a law that “does nothing more than admit evidence of a
particular kind in a criminal case . . . which was not
admissible under the rules of evidence as enforced by judicial
decisions at the time the offense was committed.” Thompson
v. Missouri, 171 U.S. 380, 387 (1898); see Hopt v. People,
110 U.S. 574, 589 (1884) (holding no ex post facto violation
for a law allowing for convicted felons to testify as competent
witnesses because the law did not affect the “quantity or the
degree of proof necessary to establish . . . guilt”).

    While the decision in Payne allowed victim impact
statements to be admitted, the change did not lessen the
degree or amount of evidence required to impose the death
sentence. The prosecution was still required to meet its
burden of proving a statutory aggravating factor during the
guilt phase of the trial and rebutting mitigating evidence at
the sentencing phase. Wash. Rev. Code §§ 10.95.020,
10.95.030(2). The penalty phase jury was still required to
weigh the victim impact statement, in conjunction with the
other evidence, to determine whether that evidence was
sufficient to overcome a presumption that remained the same
both before and after Payne.17 While allowing victim impact


  17
     Allowing victim impact evidence also did not change the nature of the
question for the penalty phase jury to answer. W ashington law states that
the jury should “[h]av[e] in mind the crime” when determining if the
defendant merits leniency. Wash. Rev. Code § 10.95.060(4). Based on
the Supreme Court’s statement in Payne that “[v]ictim impact evidence is
simply another form or method of informing the sentencing authority
about the specific harm caused by the crime in question, evidence of a
general type long considered by sentencing authorities,” 501 U.S. at 825,
the W ashington Supreme Court could reasonably conclude that victim
                      GENTRY V . SINCLAIR                         45

evidence gave the prosecution an additional option in terms
of the range of evidence that could be used to meet its burden,
the change in law did not allow the prosecution to obtain a
sentence on less evidence.

    We agree with the Eighth and Tenth Circuits that the
admission of a victim impact statement under Payne does not
violate the Ex Post Facto Clause. Nooner, 402 F.3d at 807;
Neill, 278 F.3d at 1053; see also Washington v. Murray,
952 F.2d 1472, 1480 (4th Cir. 1991). While the admission of
the victim impact statement may have adversely affected
Gentry’s presentation at the penalty phase, the State’s
evidentiary burden remained the same. See Schroeder v.
Tilton, 493 F.3d 1083, 1088 (9th Cir. 2007) (change in law
admitting evidence of defendants’ prior sexual offenses did
not violate Ex Post Facto Clause); Neill, 278 F.3d at 1053
(“Despite the fact that Oklahoma’s statute permitting victim
impact evidence benefits only the State, . . . it does not violate
the ex post facto prohibition here because it neither changes
the quantum of proof nor otherwise subverts the presumption
of innocence.”).

    2. Due Process

    Gentry argues that he was denied due process because the
admission of victim impact evidence significantly impaired
his defense by: (1) denying the defense time to investigate the
victim’s father and (2) denying the defense the ability to voir
dire jury members about victim impact testimony. We
conclude that, consistent with our holding that the admission


impact statements were merely another form of evidence indicating the
type of crime committed. See also Nooner, 402 F.3d at 807; Neill,
278 F.3d at 1053.
46                  GENTRY V . SINCLAIR

of victim impact evidence did not violate the Ex Post Facto
Clause, it also did not constitute a due process violation.

    “[A]n unforeseeable judicial enlargement of a criminal
statute, applied retroactively, operates precisely like an ex
post facto law . . . .” Bouie, 378 U.S. at 353. Gentry’s due
process claim fails for the same reasons as his ex post facto
claim – the change in evidentiary rules did not alter the
elements of the crime or the requirements for conviction. Id.
at 353–54. Admitting victim impact statements did not
change the elements of Gentry’s crime. Gentry had sufficient
notice for due process purposes that his conduct was criminal;
there was no lawful conduct that was made unlawful by a
retroactive reinterpretation of a statute. See id. at 355 (civil
rights protesters who lawfully entered restaurant were
convicted under trespassing statute after court reinterpreted
statute to add an additional element, making protesters’
conduct unlawful after the fact).

    Additionally, the admission of victim impact evidence
here is unlike other cases where the Supreme Court and this
court have held that a due process violation occurred. The
admission of victim impact evidence did not change the
requirements for imposing the death penalty or prevent
Gentry from arguing the fundamental elements of his defense.
See Lankford v. Idaho, 500 U.S. 110, 121–28 (1991) (holding
that the defendant’s due process rights to notice were violated
when a judge imposed a capital sentence even though the
State took the position that it would not seek the death
penalty); Gardner v. Florida, 430 U.S. 349, 358–62 (1977)
(plurality) (holding that it was a due process violation where
the judge, in issuing the death sentence against the
recommendation of the jury, considered a confidential
presentencing report that was not considered by the jury);
                     GENTRY V . SINCLAIR                      47

Coleman v. McCormick, 874 F.2d 1280, 1288 (9th Cir. 1989)
(determining a due process violation where a statutory
change, after Coleman’s trial, required an entirely separate
penalty phase trial where the presiding judge would consider
aggravating and mitigating factors to warrant a capital
sentence, when the presentation of mitigating factors played
no role under the prior scheme).

    Gentry received notice that the State would present victim
impact testimony and he had the opportunity to cross-
examine and test the witness; Gentry’s counsel chose not to
cross-examine the witness for tactical reasons. Further,
Gentry’s trial counsel was aware that the Supreme Court was
considering the admissibility of victim impact statements in
Payne.

    Moreover, the inability to ask specific voir dire questions
related to victim impact evidence did not render the trial
fundamentally unfair. See Mu’Min v. Virginia, 500 U.S. 415,
425–26 (1991). We agree with the district court that other
lines of questioning during voir dire addressed the issue of a
juror’s impartiality when faced with emotionally
inflammatory evidence. Further, jurors’ potential reactions
to parental testimony, of which victim impact evidence is a
subset, was part of the defense’s voir dire. These lines of
questioning were tantamount to “a generalized but thorough”
voir dire inquiry, which was constitutionally sufficient.
Ristaino v. Ross, 424 U.S. 589, 598 (1976).

G. Juror No. 22

    We also affirm the denial of habeas relief on Gentry’s
claim that the state trial court’s exclusion of prospective Juror
22 during death qualification contravened federal law by
48                      GENTRY V . SINCLAIR

permitting the exclusion on a broader basis than the
“substantial impairment” standard allowed under
Witherspoon v. Illinois, 391 U.S. 510 (1968), Wainwright v.
Witt, 469 U.S. 412 (1985), and related cases. We conclude
that it was not an unreasonable application of federal law
under § 2254(d)(1) for the Washington Supreme Court to
determine that the Juror 22’s attitude substantially impaired
the performance of his duty as a juror. Moreover, in light of
Juror 22’s ambiguous statements at voir dire regarding his
ability to follow the law, the Washington Supreme Court’s
decision in support of exclusion was also not an unreasonable
determination of fact under § 2254(d)(2).

    At voir dire, the trial court’s oral examination of Juror 22
following a 24-page questionnaire yielded conflicting
answers as to whether the juror could set aside his beliefs
regarding capital punishment in making a decision, resulting
in the prosecution moving to dismiss the juror for cause.18
After reviewing the law on substantial impairment, the trial
court stated that Juror 22 “indicated that he can impose the


 18
    Upon initial questioning, Juror 22’s responses indicated he would be
willing to impose the death penalty if the law called for it. However,
when the prosecution questioned whether the juror could impose the death
penalty even knowing that the individual sitting before him could be put
to death, the juror wavered by stating, “I don’t know if I really could.”
Follow-up responses further indicated that Juror 22 might not be able to
impose the death penalty, even if the law provided for it. W hen
questioned by the defense attorney, Juror 22 at first responded similarly,
indicating he did not think he would “ever be convinced in [his] heart”
that he could impose the death penalty, but he changed his answers when
presented with a scenario where both the guilt and the absence of
mitigating circumstances were proven. However, in response to several
questions leading up to this proffered scenario, Juror 22 stated that he
found it hard to believe that the absence of mitigating circumstances could
ever be proven beyond a reasonable doubt to him.
                     GENTRY V . SINCLAIR                      49

death penalty if the State meets its burden of proof,” but he
was “more inclined” to find mercy as a mitigating factor and
was not “completely open” on the issue. Because jurors
should be “down the middle of the road” as much as possible,
the trial court judge determined that Juror 22’s views
substantially impaired his ability to follow the law.

    We first address our conclusion that the Washington
Supreme Court did not unreasonably apply the substantial
impairment standard in upholding the exclusion of Juror 22,
followed by our determination that the Washington Supreme
Court did not make any unreasonable findings of fact in
reaching its decision in support of exclusion.

    1. Reasonable Application of Law

     Gentry argues that the trial court misapplied the required
substantial impairment standard. A juror in a capital case is
appropriately excluded where “the juror’s views would
‘prevent or substantially impair the performance of his duties
as a juror in accordance with his instructions and his oath.’”
Witt, 469 U.S. at 424 (quoting Adams v. Texas, 448 U.S. 38,
45 (1980)). When applying the “substantial impairment”
standard, a juror’s belief that the death penalty is unjust is
insufficient grounds for exclusion, so long as the juror can set
aside this belief in making a decision. See Lockhart v.
McCree, 476 U.S. 162, 176 (1986). Although it is
impermissible to exclude a juror who is not substantially
impaired, a juror’s bias does not have to be proved with
“unmistakable clarity.” Witt, 469 U.S. at 424 (internal
quotation marks omitted). Rather, when there is ambiguity in
the prospective juror’s statements, “the trial court, aided as it
undoubtedly [is] by its assessment of [the juror’s] demeanor,
[is] entitled to resolve it in favor of the State.” Id. at 434.
50                      GENTRY V . SINCLAIR

    Here, the trial judge did explicitly state that he found
“substantial impairment” of Juror 22’s duties as a juror.19 We
note that “[t]he need to defer to the trial court’s ability to
perceive jurors’ demeanor does not foreclose the possibility
that a reviewing court may reverse the trial court’s decision
where the record discloses no basis for a finding of
substantial impairment.” Uttecht v. Brown, 551 U.S. 1, 20
(2007). However, the voir dire record here indicates
conflicting answers and confusion on the part of Juror 22 in
his ability to follow instructions regarding imposition of the
death penalty. Given the discretion accorded a trial court in
making its decision to exclude (and our deference to the
Washington Supreme Court’s adjudication of this claim under


  19
    In full, the trial judge’s explanation regarding its interpretation and
application of the legal standard was as follows:

              The standard as pointed out by Mr. Moran, is
         whether the juror’s attitude toward the death penalty
         will prevent or substantially impair his performance of
         the duties in accordance with instructions of the court
         and his oath, the standard in Wainwright v. Witt, and
         which I just reread.

              This gentleman indicated that he can impose the
         death penalty if the State meets its burden of proof, but
         that because of his attitude toward the death penalty, he
         would be more inclined to find there is mercy as a
         mitigating circumstance. That indicates that he isn’t
         completely open on that question. And I guess the
         question then becomes, the issue becomes whether that
         is substantial impairment of his duties as a juror, which
         is to judge the case fairly. And I guess given this
         consequence here, I think that we need jurors that are
         down the middle as much as possible and I find that
         that’s a substantial impairment and I’ll sustain the
         challenge.
                     GENTRY V . SINCLAIR                        51

AEDPA), and when considering the content of Juror 22’s
answers, it was not an unreasonable application of the
“substantial impairment” standard for the Washington
Supreme Court to uphold the exclusion of Juror 22 based on
the trial judge’s statements. See id. (holding that the trial
court was within its discretion to exclude because the record
showed considerable confusion on the part of the juror).

    2. Reasonable Determination of Fact

    We also concur with the Washington Supreme Court’s
determination that the trial court “did not abuse its discretion”
in excluding Juror 22, deferring to the trial court’s factual
findings on the issue. In determining whether juror exclusion
for bias is unreasonable under the substantial impairment
standard, a trial court’s findings of juror partiality are entitled
to special deference. See Uttecht, 551 U.S. at 9 (“Deference
to the trial court is appropriate because it is in a position to
assess the demeanor of the venire . . . a factor of critical
importance in assessing the attitude and qualifications of
potential jurors.”).

     There was sufficient evidence in the record to support the
trial court’s conclusion that Juror 22’s personal beliefs about
capital punishment would prevent or substantially impair his
ability to abide by his oath and follow instructions. We see
no reason to question the trial court’s decision to exclude
given Juror 22’s multiple contradictory statements on whether
he could or could not follow instructions regarding
application of the death sentence. See Witt, 469 U.S. at 434
(finding that ambiguity in a juror’s statements must be
resolved in favor of the state).
52                    GENTRY V . SINCLAIR

III.     Conclusion

    We disagree with the conclusion of the district court that
Gentry’s claim for ineffective assistance in failing to present
mitigating evidence at the penalty phase was procedurally
defaulted. That claim was exhausted before the Washington
Supreme Court and also adjudicated on the merits. However,
we affirm the denial of habeas relief on that claim because the
Washington Supreme Court’s determination that Gentry
failed to establish deficient performance was not an
unreasonable application of clearly established federal law
and was not an unreasonable determination of fact. We also
affirm the denial of habeas relief as to the remainder of
Gentry’s claims.

       AFFIRMED.
