                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


BARRY LEE JONES,                          No. 18-99006
              Petitioner-Appellee,
                                             D.C. No.
                &                         4:01-cv-00592-
                                               TMB
DAVID SHINN, Director, Arizona
Department of Corrections; STEPHEN
MORRIS, Warden, Arizona State                ORDER
Prison-Eyman Complex,
           Respondents-Appellants.

                Filed August 24, 2020

 Before: Johnnie B. Rawlinson, Richard C. Clifton, and
            Paul J. Watford, Circuit Judges.

                        Order;
               Dissent by Judge Collins
2                        JONES V. SHINN

                          SUMMARY *


                         Habeas Corpus

   The panel denied a petition for rehearing and denied on
behalf of the court a petition for rehearing en banc.

    Dissenting from the denial of rehearing en banc, Judge
Collins, joined by Judges Callahan, Ikuta, R. Nelson, Lee,
Bress, Bumatay, and VanDyke, wrote that the panel’s
decision disregards controlling Supreme Court precedent by
creating a new judge-made exception to the restrictions
imposed by the Antiterrorism and Effective Death Penalty
Act on the use of new evidence in habeas corpus
proceedings.


                           COUNSEL

Myles A. Braccio (argued), Assistant Attorney General;
Lacey Stover Gard, Chief Counsel; Mark Brnovich,
Attorney General; Capital Litigation Section, Office of the
Attorney General, Tucson, Arizona; for Respondents-
Appellants.

Cary Sandman (argued) and Karen Smith, Assistant Federal
Public Defenders; Jon M. Sands, Federal Public Defender;
Office of the Federal Public Defender, Tucson, Arizona; for
Petitioner-Appellee.


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

Ken Paxton, Attorney General; Jeffrey C. Mateer, First
Assistant Attorney General; Kyle D. Hawkins, Solicitor
General; Matthew H. Frederick, Deputy Solicitor General;
Jason R. LaFond, Assistant Solicitor General; Office of the
Attorney General, Austin, Texas; for Amicus Curiae State of
Texas.


                         ORDER

    The panel has unanimously voted to deny Respondent-
Appellant’s petition for rehearing. Judge Rawlinson and
Judge Watford have voted to deny the petition for rehearing
en banc, and Judge Clifton so recommends.

    The full court has been advised of the petition for
rehearing en banc. A judge of the court requested a vote on
en banc rehearing. The matter failed to receive a majority of
votes of non-recused active judges in favor of en banc
consideration. Fed. R. App. P. 35.

    The petitions for rehearing and rehearing en banc
(Docket Entry No. 71) are DENIED. No future petitions for
rehearing or rehearing en banc will be entertained.



COLLINS, Circuit Judge, with whom CALLAHAN,
IKUTA, R. NELSON, LEE, BRESS, BUMATAY, and
VANDYKE, Circuit Judges, join, dissenting from the denial
of rehearing en banc:

    The panel decisions in Ramirez v. Ryan, 937 F.3d 1230
(9th Cir. 2019), and Jones v. Shinn, 943 F.3d 1211 (9th Cir.
2019), disregard controlling Supreme Court precedent by
creating a new judge-made exception to the restrictions
4                          JONES V. SHINN

imposed by the Antiterrorism and Effective Death Penalty
Act (“AEDPA”) on the use of new evidence in habeas corpus
proceedings. See 28 U.S.C. § 2254(e)(2). I respectfully
dissent from our failure to rehear these cases en banc. 1

     As the Supreme Court has explained, the negligence of
“postconviction counsel” in developing the evidentiary
record in state court is “chargeable to the client and
precludes relief unless the conditions of § 2254(e)(2) are
satisfied.” Holland v. Jackson, 542 U.S. 649, 653 (2004).
Specifically, § 2254(e)(2) bars “relief based on new
evidence,” with or without a hearing, unless one of its
exceptions is applicable. Id. In both Jones and Ramirez,
state postconviction counsel failed to develop the record to
support the current claims of ineffective assistance of trial
counsel that both petitioners wish to present in federal
habeas corpus proceedings. Although there is (and can be)
no contention that any of § 2254(e)(2)’s exceptions apply in
either case, the panels in both cases nonetheless held that the
strictures of § 2254(e)(2) did not apply to the new evidence
that the petitioners wished to present in support of the merits
of those claims.

    The panels’ reasoning was that, because the Supreme
Court has held that ineffective assistance of postconviction
counsel may establish “cause to excuse” the separate
“procedural default” of failing to raise an ineffective-
assistance-of-trial-counsel claim in state court, see Martinez
v. Ryan, 566 U.S. 1, 13 (2012), a similar exception should
also be recognized to excuse the separate prohibition on new
evidence set forth in § 2254(e)(2). But Martinez relied on
“the Court’s discretion” to alter judge-made rules of

    1
      In light of the common issue raised in the two cases, I am filing an
identical combined dissent in both cases.
                        JONES V. SHINN                          5

procedural default, id., and that power to recognize “judge-
made exceptions” to judge-made doctrines does not extend
to statutory provisions, Ross v. Blake, 136 S. Ct. 1850, 1857
(2016). “There, Congress sets the rules—and courts have a
role in creating exceptions only if Congress wants them to.”
Id. And Congress has been clear in § 2254(e)(2) that it does
not want any such new exceptions. Indeed, prior to the
enactment of § 2254(e)(2), both distinct types of failure (i.e.,
failure to raise a claim at all and failure to develop the factual
record) were governed by the same “cause and prejudice”
standard that Martinez later modified. See Coleman v.
Thompson, 501 U.S. 722, 753–54 (1991); Keeney v.
Tamayo-Reyes, 504 U.S. 1, 11 (1992). But in § 2254(e)(2),
Congress explicitly abrogated Keeney’s “cause and
prejudice” standard and replaced it with a much more
demanding standard that is concededly not met in either
Jones or Ramirez. Given that Congress has eliminated in the
evidentiary-development context the very predicate on
which Martinez is based, we have no authority to rewrite the
statute and to engraft a judge-made Martinez exception onto
it.

    The Ramirez decision presents a particularly stark
violation of § 2254(e)(2). Jones only went so far as to
contend that the same evidence used to established cause and
prejudice under Martinez could then be used,
notwithstanding § 2254(e)(2), to establish the merits of the
underlying ineffective-assistance-of-trial-counsel claim.
While I believe that even this result contravenes Supreme
Court authority, it at least has the virtue of making its new
judge-made exception to § 2254(e)(2) coextensive with the
Martinez exception. But in Ramirez, the panel held that,
even after the Martinez exception had been established with
new evidence, the petitioner was entitled to keep going and
to develop even more evidence as if § 2254(e)(2) did not
6                      JONES V. SHINN

exist at all. Nothing supports Ramirez’s egregious disregard
of the clear strictures of § 2254(e)(2).

                               I

                               A

     David Ramirez was convicted by an Arizona jury of the
first-degree murders of his girlfriend and her daughter, and
he was sentenced to death by a judge. Ramirez, 937 F.3d
at 1234. Ramirez’s trial attorney, Mara Siegel, was a
Maricopa County public defender, and Ramirez’s case was
her first capital assignment. Id. at 1235. After his conviction
and sentence were affirmed on direct appeal, Ramirez filed
a petition for postconviction relief in state court, but he did
not raise a claim that his trial counsel had been ineffective in
the particular respects that he now asserts. Id. at 1238. The
state petition was denied. Id.

    Ramirez then filed a federal habeas petition, the
operative version of which raised the claim that trial counsel
was ineffective in her presentation of mitigation evidence
during the penalty phase. 937 F.3d at 1238. The federal
district court initially denied the claim as procedurally
defaulted, because Ramirez had failed to raise the claim
during his initial state postconviction-relief proceeding. See
Martinez Ramirez v. Ryan, 2010 WL 3854792 (D. Ariz.
Sept. 28, 2010). While Ramirez’s appeal from that decision
was pending in this court, the Supreme Court issued its
decision in Martinez, in which the Court held that a
petitioner may establish “cause” to excuse a procedural
default if the petitioner can show (1) that the petitioner’s
postconviction counsel was ineffective in failing to raise an
ineffective-assistance-of-trial-counsel claim, and (2) that the
underlying ineffective-assistance-of-trial-counsel claim is
“substantial,” that is, “has some merit.” 566 U.S. at 14. A
                       JONES V. SHINN                         7

panel of this court remanded for reconsideration of
Ramirez’s ineffective-assistance-of-trial-counsel claim “in
light of intervening law.”

    On remand, Ramirez asked for an evidentiary hearing to
develop evidence regarding whether his postconviction-
relief counsel was ineffective, in order to establish “cause”
for the default under Martinez. Ramirez acknowledged that
28 U.S.C. § 2254(e)(2) bars factual development of claims
not developed in state court, but relying on our precedent in
Dickens v. Ryan, 740 F.3d 1302, 1321 (9th Cir. 2014) (en
banc), he argued that the cause-and-prejudice question under
Martinez is not a “claim” for purposes of § 2254(e)(2) and
that evidence could be received to see whether the default
could be excused under Martinez.

    Ramirez also submitted declarations from various family
members describing the truly deplorable conditions of his
upbringing. Ramirez, 937 F.3d at 1238–39. Compared to
the testimony that Siegel elicited during the original
sentencing hearing, the new declarations paint a darker
picture of the abuse and neglect that Ramirez’s mother
inflicted on her children. Ramirez also submitted a
declaration from Siegel herself, in which she admitted that
the mitigation evidence that she presented was “very
limited.” Id. at 1240. Finally, Ramirez submitted a
declaration from Dr. McMahon, a psychologist whom the
state trial court had appointed to evaluate Ramirez’s mental
health during the penalty phase of his criminal trial. Id.
Dr. McMahon stated that Siegel failed to give him Ramirez’s
IQ scores or school reports and that, had she done so, he
likely would have expanded his evaluation, and he would not
have found that Ramirez was not intellectually disabled. Id.

    The district court noted that, “for different reasons,” both
sides agreed that the court should consider the merits of
8                      JONES V. SHINN

Ramirez’s ineffective-assistance-of-trial-counsel claim. As
the court explained, the State argued that the lack of merit to
that claim showed that postconviction counsel “did not
perform ineffectively in failing to raise the claim in state
court” and that the Martinez standard therefore could not be
met. Ramirez, by contrast, argued that postconviction
counsel was ineffective in failing to raise the claim and that
the merits of that claim therefore had to be considered de
novo. The court denied Ramirez’s request for an evidentiary
hearing, concluding that such a hearing was “not warranted”
in light of the existing evidence, but the court accepted his
newly submitted exhibits into the record. After comparing
the evidence on mitigation presented at the penalty phase of
Ramirez’s trial to the information in the newly submitted
exhibits, the court resolved the merits of the underlying
claim, concluding that Siegel’s performance was not
deficient and that any deficiency did not prejudice Ramirez.

    Ramirez again appealed to this court. The panel
reversed, finding that the district court should not have
“collapsed what should have been a two-step process”: first
evaluating whether the performance of Ramirez’s
postconviction counsel constituted ineffective assistance
that excused the procedural default under Martinez, and only
then addressing the merits of the underlying ineffective-
assistance-of-trial-counsel claim, “after allowing a chance
for any necessary record or evidentiary development.”
Ramirez, 937 F.3d at 1242 n.7. The panel then proceeded to
address the merits of the Martinez analysis, concluding that
Ramirez’s postconviction counsel did render ineffective
assistance and that Ramirez’s underlying claim was
“substantial,” thus excusing his procedural default under
Martinez. Id. at 1243–48. Finally, the panel concluded that
“the district court erred in denying Ramirez evidentiary
development of his ineffective assistance of counsel claim”
                       JONES V. SHINN                         9

and remanded for further evidentiary development on that
underlying claim. Id. at 1248.

                               B

    Barry Lee Jones was convicted by an Arizona jury of
sexual assault, child abuse, and felony murder of his
girlfriend’s four-year-old daughter, Rachel Gray. Jones,
943 F.3d at 1215. A judge sentenced him to death. Id.
at 1217. Jones filed a petition for postconviction relief in
state court, in which he claimed ineffective assistance of trial
counsel regarding certain aspects of his attorney’s
representation. Id. at 1218. The petition was denied. Id.

    Jones then filed a federal habeas petition, the operative
version of which raised several new claims that his trial
attorney was ineffective at both the guilt and penalty phases
of Jones’ case. 943 F.3d at 1218. The district court denied
most of the claims as procedurally defaulted. Jones v.
Schriro, 2008 WL 4446619, at *5 (D. Ariz. Sept. 29, 2008).
While the case was on appeal in this court, the Supreme
Court issued its decision in Martinez. This court remanded
the case to the district court for reconsideration of Jones’s
claim. This court’s remand order determined that Jones’s
claims were “substantial” and that one prong of the Martinez
analysis was therefore already satisfied. (Recall that
Martinez requires a petitioner to show that postconviction
counsel was ineffective and that the underlying ineffective-
assistance-of-trial-counsel claim is “substantial.”       See
566 U.S. at 14.)

   On remand, the district court ordered the parties to brief
the other prong of Martinez—whether Jones’s
postconviction counsel was ineffective for failing to raise the
underlying ineffective-assistance-of-trial-counsel claim—as
well as the merits of that underlying claim itself. Jones
10                     JONES V. SHINN

contended that trial counsel was ineffective during both the
guilt and penalty phases of the trial. Based on new exhibits
submitted by Jones, the district court found enough initial
merit to Jones’s arguments that postconviction counsel had
been ineffective that the court granted Jones’s request for a
full evidentiary hearing on whether Jones’s default of his
underlying claims could be excused under Martinez. In
granting that request, the court concluded that 28 U.S.C.
§ 2254(e)(2) did not apply to new evidence used to establish
cause under Martinez. The district court went a step further,
however, and also granted Jones’s request for an evidentiary
hearing to develop his underlying ineffective-assistance-of-
trial-counsel claim.

    After a seven-day evidentiary hearing, the district court
issued a decision granting Jones’s habeas petition. Jones v.
Ryan, 327 F. Supp. 3d 1157 (D. Ariz. 2018). The court
concluded that Jones’s trial counsel had performed a
deficient investigation into medical evidence of the timeline
of Rachel’s injuries and that, had a proper investigation been
performed, counsel could have cast doubt on the state’s
theory that Rachel’s injuries occurred while she was in
Jones’s care. Id. at 1198–1202, 1206–09. The court then
concluded that Jones’s postconviction-relief counsel
rendered ineffective assistance in failing to raise that claim,
thereby excusing Jones’s procedural default under Martinez.
Id. at 1214–17.

    The state appealed, arguing that, although 28 U.S.C.
§ 2254(e)(2) did not bar the district court from holding an
evidentiary hearing on Jones’s efforts to establish cause for
default under Martinez, the statute did bar the district court
from considering any of the evidence from the Martinez
hearing when analyzing the merits of the underlying claim.
The panel rejected the state’s argument, concluding that a
                       JONES V. SHINN                       11

district court is not barred from considering evidence
developed to overcome a procedural default under Martinez
when analyzing the underlying claim. Jones, 943 F.3d
at 1220–22.

                              II

    We should have granted rehearing en banc because, in
contravention of controlling Supreme Court authority, the
panels’ decisions in Jones and Ramirez create a new judge-
made exception to 28 U.S.C. § 2254(e)(2)’s strict limitations
on expansion of the evidentiary record in habeas corpus
cases.

                              A

     The petitioners in Jones and Ramirez confronted two
distinct obstacles to presenting their ineffective-assistance-
of-trial-counsel claims in federal habeas corpus proceedings.
First, the claims they sought to assert had not been presented
in their state postconviction proceedings, and the resulting
procedural default required them to show cause and
prejudice to excuse that default. Second, the petitioners had
failed to develop in the state court record the facts that they
needed to establish their claims, and this presented a
separate obstacle that would require them to make an
appropriate showing before a federal habeas court could
consider any additional evidence.            See 28 U.S.C.
§ 2254(e)(2). In order to set the panels’ decisions in context,
it is helpful to summarize the applicable state of the law
concerning these two distinct procedural hurdles.

                              1

    The general rule against consideration of procedurally
defaulted claims in federal habeas corpus is a judge-made
12                      JONES V. SHINN

doctrine that has long been recognized by the Supreme
Court. The Court’s rule is “grounded in principles of
comity,” because “a habeas petitioner who has failed to meet
the State’s procedural requirements for presenting his
federal claims has deprived the state courts of an opportunity
to address those claims in the first instance.” Coleman,
501 U.S. at 731–32. Because Arizona requires that
ineffective-assistance-of-trial-counsel claims be presented
in the first state postconviction petition, see Martinez,
566 U.S. at 6–7, the petitioners’ failure to present their
claims in Arizona state court constitutes a procedural
default, see Coleman, 501 U.S. at 735 n.1 (where claim was
not exhausted in state court and state court “would now find
the claims procedurally barred,” there “is a procedural
default for purposes of federal habeas”); see also Trevino v.
Thaler, 569 U.S. 413, 421 (2013) (failure to raise a claim in
state court “at the time or in the place that state law requires”
qualifies as procedural default). But the Supreme Court has
recognized exceptions to this judge-made rule: procedurally
defaulted claims may be considered if the petitioner can
(1) show “cause” for the default and “actual prejudice” from
the state’s alleged violation of federal law or (2) demonstrate
that application of the rule would “result in a fundamental
miscarriage of justice.” Coleman, 501 U.S. at 750.

    In Coleman, the Court held that attorney error generally
does not constitute “cause” to excuse a procedural default
because “cause” must be something “external to the
petitioner,” and error by a petitioner’s attorney is not
“external” because “the attorney is the petitioner’s agent
when acting, or failing to act.” 501 U.S. at 753. But
Coleman observed that attorney error can constitute “cause”
when the error qualifies as ineffective assistance of counsel,
in violation of the Sixth Amendment. Id. at 753–54. The
reason for this exception is “not because . . . the error is so
                       JONES V. SHINN                       13

bad that the lawyer ceases to be an agent of the petitioner”;
such an argument, the Court explained, “would be contrary
to well-settled principles of agency law,” under which even
an agent’s negligence is imputed to the principal. Id. at 754.
Rather, the reason for the exception is that, when effective
assistance of counsel is constitutionally guaranteed, “‘the
Sixth Amendment itself requires that responsibility for the
default be imputed to the State.’” Id. (quoting Murray v.
Carrier, 477 U.S. 478, 488 (1986)). And because “[t]here is
no constitutional right to an attorney in state post-conviction
proceedings,” Coleman reasoned, an error by postconviction
counsel is not imputed to the state and cannot constitute
“cause.” Id. at 752.

     In Martinez v. Ryan, however, the Court created a
“narrow exception” to Coleman’s holding that negligence by
postconviction counsel can never constitute cause to excuse
default. 566 U.S. at 9. The Court expressed special concern
about applying Coleman’s strict rule in the context of claims
that trial counsel was ineffective, because such claims often
can be brought only in postconviction proceedings—where
effective representation is not constitutionally guaranteed—
and, further, because such claims “often require
investigative work and an understanding of trial strategy.”
Id. at 11. The Martinez Court pointedly declined to rest its
exception to Coleman on the premise that there is a
constitutional right to effective assistance of postconviction
counsel in the presentation of an ineffective-assistance-of-
trial-counsel claim. Id. at 9. Instead, recognizing that “[t]he
rules for when a prisoner may establish cause to excuse a
procedural default are elaborated in the exercise of the
Court’s discretion,” id. at 13, the Court held that, “as an
equitable matter,” ineffective assistance of postconviction
counsel (or lack of postconviction counsel) can constitute
“cause” to excuse procedural default of an ineffective-
14                     JONES V. SHINN

assistance-of-trial-counsel claim, but only if the claim is
“substantial,” id. at 14.

                              2

    The second distinct obstacle that the petitioners face here
was their failure to adequately develop in state court the
factual evidence needed to establish the ineffective-
assistance-of-trial-counsel claims that they now wish to
present. Again relying upon judge-made rules governing the
writ of habeas corpus, the Supreme Court previously had
treated such a failure as comparable to a procedural default,
and the Court therefore generally required a showing of
cause and prejudice to excuse the failure. See, e.g., Keeney,
504 U.S. at 8–10. The rationale for this additional federal
habeas rule was likewise grounded in federalism:
“encouraging the full factual development in state court of a
claim that state courts committed constitutional error
advances comity by allowing a coordinate jurisdiction to
correct its own errors in the first instance.” Id. at 9. Under
Keeney, a failure to develop the record occurs even when the
petitioner’s counsel is responsible, id. at 4 (requiring cause
and prejudice even though the failure was “apparently due to
the negligence of postconviction counsel”), and the requisite
cause cannot be shown “where the cause asserted is attorney
error,” id. at 10 n.5 (citing Coleman, 501 U.S. 722).

    However, in enacting AEDPA, Congress partially
abrogated Keeney and replaced it with a different and more
demanding set of standards. The relevant provision is
contained in 28 U.S.C. § 2254(e)(2), which provides as
follows:

       If the applicant has failed to develop the
       factual basis of a claim in State court
       proceedings, the court shall not hold an
                         JONES V. SHINN                          15

        evidentiary hearing on the claim unless the
        applicant shows that—

            (A) the claim relies on—

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

                (ii) a factual predicate that could not
                have been previously discovered
                through the exercise of due diligence;
                and

            (B) the facts underlying the claim 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.

Id. The Supreme Court has made two important rulings
concerning the meaning of § 2254(e)(2), and those decisions
establish the governing law concerning this separate
procedural obstacle to the presentation of a claim in federal
habeas corpus.

    First, in Williams v. Taylor (Michael Williams), 2
529 U.S. 420 (2000), the Court held that Congress’s use of
the word “failed” in the opening clause of § 2254(e)(2) was

    2
     The Supreme Court coincidentally decided another AEDPA case
named Williams v. Taylor (involving Terry Williams) on the very same
day. See 529 U.S. 362 (2000).
16                      JONES V. SHINN

“intended to preserve” Keeney’s definition of what counts as
the sort of state-court failure that triggers the rule. Id. at 433.
As the Court explained, Keeney’s cause-and-prejudice
requirement applied—and therefore § 2254(e)(2)’s
replacement for that cause-and-prejudice standard now
applies—when “there is lack of diligence, or some greater
fault, attributable to the prisoner or the prisoner’s counsel.”
Id. at 432 (emphasis added). Thus, § 2254(e)(2) preserves
the rule that attorney failure to develop the record triggers
the need to make a further showing to excuse that failure.
But Congress dramatically changed the circumstances under
which such attorney failure can be excused, by replacing the
cause-and-prejudice and fundamental-miscarriage-of-justice
tests with the stricter exceptions in § 2254(e)(2). Id. at 433.
Notably, ineffective assistance of postconviction counsel is
not included in the statute as a ground for excusing the
failure to develop the factual basis of a claim in state court.
Thus, it is not sufficient to show that counsel’s lack of
diligence failed to uncover the new evidence; rather, it must
be shown that the “factual predicate . . . could not have been
previously discovered through the exercise of due
diligence.” 28 U.S.C. § 2254(e)(2)(A)(ii) (emphasis added).

    Second, the Supreme Court held in Holland v. Jackson
that § 2254(e)(2)’s strictures are applicable whenever the
petitioner attempts to rely on evidence that was not presented
in state court, and not merely when the petitioner seeks a
formal evidentiary hearing. 542 U.S. at 653. In Holland,
habeas petitioner Jackson had been convicted of murder in
state court, primarily on the testimony of a single
eyewitness. Id. at 650. Seven years later, Jackson attempted
to reopen his state postconviction case because he claimed
that a new witness would contradict the primary witness’s
testimony. Id. at 650–51. The state court denied the motion,
finding “no satisfactory reason given for the defendant’s
                       JONES V. SHINN                        17

failure to locate this witness.” Id. at 651. The Supreme
Court reversed the Sixth Circuit’s subsequent grant of
habeas relief, holding in relevant part that consideration of
the new witness’s testimony was barred under § 2254(e)(2).
Reaffirming that “[a]ttorney negligence” in developing the
state court record “is chargeable to the client and precludes
relief unless the conditions of § 2254(e)(2) are satisfied,” id.
at 653 (citing Michael Williams, 529 U.S. at 439–40;
Coleman, 501 U.S. at 753–54), the Court held that Jackson’s
failure to present the testimony of the new witness to the
state court was subject to the strictures of § 2254(e)(2).
Moreover, the Court made clear that, despite the fact that
§ 2254(e)(2)’s limitations applied to the holding of an
“evidentiary hearing,” “[t]hose same restrictions apply a
fortiori when a prisoner seeks relief based on new evidence
without an evidentiary hearing.” Id.

    Thus, under Michael Williams and Holland, where the
petitioner’s attorney in state postconviction proceedings
negligently fails to develop the record on a claim, a federal
habeas court may not consider new evidence in support of
that claim unless the strictures of § 2254(e)(2) have been
met.

                               B

    Against this backdrop, the panel decisions in Jones and
Ramirez are directly contrary to controlling Supreme Court
authority.

                               1

    Jones held that, notwithstanding § 2254(e)(2),
“Martinez’s procedural-default exception applies to merits
review, allowing federal habeas courts to consider evidence
not previously presented to the state court.” Jones, 943 F.3d
18                     JONES V. SHINN

at 1221 (emphasis added). Jones erred by engrafting
Martinez’s judge-made exception to a judge-made rule onto
the separate statutory rule set forth in § 2254(e)(2). Jones
made no effort to reconcile its holding with Holland or
Michael Williams; indeed, Jones did not mention either
decision. Its holding is directly contrary to those decisions,
which (as explained earlier) bar consideration of new
evidence to evaluate the merits of a claim in federal habeas
proceedings—even when that evidence was not previously
discovered due to the negligence of postconviction
counsel—unless one of the narrow exceptions set forth in
§ 2254(e)(2) is satisfied. Jones did not suggest that any of
those exceptions are applicable here. Instead, Jones relied
on two arguments to justify its holding, but neither has merit.

                              a

     Jones relied primarily on policy-based arguments for
extending Martinez’s exception to § 2254(e)(2). This court
has previously held that, because a claim of ineffective
assistance of postconviction counsel “is not a constitutional
claim” but only a predicate for showing “cause” to excuse a
failure to present a claim (namely, ineffective assistance of
trial counsel), a petitioner seeking to show such cause “is not
asserting a ‘claim’ for relief as that term is used in
§ 2254(e)(2).” Dickens, 740 F.3d at 1321. Section
2254(e)(2) thus does not bar a hearing to develop the facts
necessary to establish cause under Martinez. See id.
Because in Jones the district court had already conducted a
lengthy hearing for that purpose, the panel held that it would
be “‘simply illogical, and extraordinarily burdensome to the
courts and the litigants,’” to hear evidence concerning cause
under Martinez but then to disregard that very same evidence
when addressing the merits of the underlying claim. Jones,
943 F.3d at 1221 (quoting the district court decision).
                      JONES V. SHINN                       19

Additionally, the panel endorsed the plurality view in
Detrich v. Ryan, 740 F.3d 1237 (9th Cir. 2013) (en banc),
that if § 2254(e)(2) could stymie factual development for
claims rescued from procedural default by Martinez, then
“‘Martinez would be a dead letter.’” 943 F.3d at 1222
(quoting Detrich, 740 F.3d at 1247 (four-judge plurality));
see also Ramirez, 937 F.3d at 1248 (likewise relying upon
the Detrich plurality).

     As an initial matter, the Jones panel and the Detrich
plurality overstate the extent of the inconsistency between
Martinez and § 2254(e)(2), as noted by the amicus brief filed
by the State of Texas in support of rehearing en banc in the
Jones case. Martinez excuses the procedural default of
failing to raise a claim of ineffective assistance of trial
counsel in a state postconviction petition when the default is
attributable to the ineffective assistance of state
postconviction counsel. Section 2254(e)(2) separately bars
the development of new evidence in support of a habeas
claim in federal court. Thus, § 2254(e)(2) poses no obstacle
to review where the state court record (either at trial or in
subsequent proceedings) is already sufficient to establish
trial counsel’s mistakes—e.g., “claims based on a failure to
object to inadmissible evidence, requesting an incorrect jury
instruction, or per se ineffective assistance of counsel.”
Brief for the State of Texas as Amicus Curiae at 12–13,
Jones v. Shinn, No. 18-99006 (9th Cir. Dec. 23, 2019) (ECF
No. 75). To the extent that such mistakes nonetheless were
not raised on state postconviction review due to the
ineffectiveness of postconviction counsel, Martinez paves
the way to federal habeas relief.

    But even if most Martinez claims would be barred by
§ 2254(e)(2), that would not give us a license to contravene
the settled law governing that statute. Nothing in the text of
20                     JONES V. SHINN

§ 2254(e)(2) says that its prohibition on consideration of
new evidence does not apply when postconviction counsel
was ineffective or where “cause” has been shown to excuse
some separate procedural default. On the contrary, AEDPA
amended § 2254(e)(2) to abolish precisely the same “cause
and prejudice” standard that Martinez invoked (and
modified) and replaced it with a much more demanding
standard (which both panels agree is not met in these cases).
See Michael Williams, 529 U.S. at 433 (“Congress raised the
bar Keeney imposed on prisoners.”). Section 2254(e)(2)
therefore eliminated any basis for extending Martinez to
excuse a failure to develop the record. That is, because the
predicate for Martinez’s holding is the cause-and-prejudice
standard, and because § 2254(e)(2) expressly eliminated that
standard in the context of a failure to develop the record, the
entire predicate for applying Martinez is simply absent in
that context.

    Where, as here, Congress has specifically modified and
limited pre-existing equitable doctrines that otherwise would
have applied, we have no authority to ignore those
limitations. See McQuiggin v. Perkins, 569 U.S. 383, 395–
96 (2013) (noting that § 2254(e)(2) specifically modified the
previously recognized “miscarriage of justice exception”).
Accordingly, this is not a situation in which Congress left
undisturbed a long-settled background presumption
concerning the scope of equitable authority in federal habeas
corpus proceedings. See id. at 397 (concluding that, outside
of contexts such as § 2254(e)(2), Congress presumably
intended to leave “intact and unrestricted” the long-
recognized equitably based “miscarriage of justice
exception”). The Jones panel and the Ramirez panel thus
lacked the authority to engraft a judge-made exception onto
§ 2254(e)(2)—particularly when it is contrary to the
construction of that statute under Michael Williams and
                            JONES V. SHINN                               21

Holland. As the Supreme Court explained in a separate
context in Ross v. Blake, although “judge-made exhaustion
doctrines . . . remain amenable to judge-made exceptions,
. . . a statutory exhaustion provision stands on a different
footing. There, Congress sets the rules—and courts have a
role in creating exceptions only if Congress wants them to.”
136 S. Ct. at 1857 (emphasis added). Under Ross, we have
no role in creating exceptions to § 2254(e)(2). 3

    Moreover, the Jones panel’s reasoning (like the
plurality’s reasoning in Detrich) rests largely on a bootstrap
argument. Dickens held that establishing “cause” under
Martinez is not a “claim,” and so a federal court does not
violate § 2254(e)(2) by receiving new evidence to consider
whether such cause has been established. 740 F.3d at 1321.
But by saying that such evidence should then be considered
on the merits of the “claim,” the panel erases the distinction
that Dickens drew and thereby endorses the very violation of
§ 2254(e)(2) that Dickens purported to avoid. To the extent
that the resulting scenario seems illogical or wasteful, that is
only because the district court in Jones failed to consider up
front both of the separate obstacles that Jones faced. There
is no point in conducting a Martinez hearing to discover

    3
       Even if the Jones panel were correct in perceiving some tension
between Martinez and the construction of § 2254(e)(2) adopted in
Michael Williams and Holland, that would not justify the panel’s
disregard of the latter decisions. As the Supreme Court has made clear,
“[i]f a precedent of this Court has direct application in a case, yet appears
to rest on reasons rejected in some other line of decisions, the Court of
Appeals should follow the case which directly controls, leaving to this
Court the prerogative of overruling its own decisions.” Rodriguez de
Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989).
Because Martinez says literally nothing whatsoever about § 2254(e)(2),
it cannot provide any basis for disregarding the directly applicable
caselaw construing that provision.
22                    JONES V. SHINN

“cause” to excuse a procedural default if the defaulted claim
will inevitably fail on the merits because (due to the other
procedural obstacle) evidence outside the state record cannot
be considered in any event. Given the insuperable obstacle
presented by § 2254(e)(2), whether the distinct obstacle
presented by Coleman/Martinez could or could not be
excused made no difference.

    To the extent that it seems unfair that a potentially
meritorious claim might escape federal habeas review, that
feature is inherent in the restrictions that AEDPA imposes
on the grant of federal habeas relief. For purposes of
§ 2254(e)(2), the evidence developed at the Martinez cause-
and-prejudice hearing stands on no different footing than the
new evidence presented to the court in Holland, and Holland
squarely holds that such new evidence may not be
considered unless the restrictions of § 2254(e)(2) have been
met. 542 U.S. at 653. The resulting disparate treatment of
procedural default under Martinez and failure to develop the
factual basis for a claim under § 2254(e)(2) is the
unmistakable consequence of Congress’s asymmetrical
intervention in this area of the law, in which Congress
eliminated the cause-and-prejudice standard only in the
Keeney context, and not in the Coleman context. Absent a
constitutional objection—and the Jones panel did not
suggest that its conclusion was required by the
Constitution—we lack the authority to improve upon
Congress’s policy judgment by judicially rewriting
§ 2254(e)(2).

                             b

    The Jones panel hinted at a second ground for its
holding, but it is equally untenable. Specifically, the panel
stated that its conclusion was consistent with the decisions
of the Eighth and Fifth Circuits in Sasser v. Hobbs, 735 F.3d
                       JONES V. SHINN                       23

833 (8th Cir. 2013), and Barrientes v. Johnson, 221 F.3d 741
(5th Cir. 2000). See Jones, 943 F.3d at 1222. Those
decisions, in turn, rested on the premise that, if counsel was
ineffective in failing to develop the record or there is
otherwise cause and prejudice to excuse that failure, then
there was no “fail[ure] to develop the factual basis of a claim
in State court proceedings” within the meaning of
§ 2254(e)(2). See Sasser, 735 F.3d at 853–54; Barrientes,
221 F.3d at 771 & n.21. This rationale is based on a clear
misreading of Michael Williams.

    Michael Williams unambiguously states that
§ 2254(e)(2) preserved Keeney’s understanding of what
counted as a “failure” to develop the record, thereby
triggering the need to excuse that failure. See 529 U.S.
at 433–34. Michael Williams further states that such a
failure is shown when “there is lack of diligence, or some
greater fault, attributable to the prisoner or the prisoner’s
counsel,” id. at 432 (emphasis added); see also Holland,
542 U.S. at 653 (“Attorney negligence, however, is
chargeable to the client and precludes relief unless the
conditions of § 2254(e)(2) are satisfied.”). Moreover, in
holding that ineffective assistance of state postconviction
counsel may provide cause and prejudice for failure to raise
a claim of ineffective assistance of trial counsel, the Supreme
Court in Martinez did not retreat from Coleman’s and
Michael Williams’s holding that, in determining whether a
procedural failure or default has occurred, habeas petitioners
are bound by the action (or inaction) of their lawyers under
“well-settled principles of agency law.” Coleman, 501 U.S.
at 754; see also Michael Williams, 529 U.S. at 432; cf.
Maples v. Thomas, 565 U.S. 266, 282–83 (2012) (noting,
even post-Martinez, “the essential difference between a
claim of attorney error, however egregious, and a claim that
an attorney had essentially abandoned his client” and
24                     JONES V. SHINN

holding that, “under agency principles,” attorney error is not
chargeable to the client only in the latter situation). Under
Martinez, the question of ineffective assistance thus goes,
not to the underlying question of whether there was a
procedural default or other failure, but rather to the question
of whether that default or failure is excused. 566 U.S. at 13–
14.

    Accordingly, the suggestion that the existence of cause
and prejudice means that there was no failure to develop the
record for purposes of § 2254(e)(2), see Sasser, 735 F.3d
at 853–54; Barrientes, 221 F.3d at 771, is plainly incorrect.
Not only does this mix up the issue of procedural failure with
the distinct issue of whether that failure is excused, but this
reasoning would effectively restore the Keeney cause-and-
prejudice standard that § 2254(e)(2) expressly abrogated.
See Michael Williams, 529 U.S. at 433. If the existence of
cause and prejudice means that there was no failure to
develop the record sufficient to trigger § 2254(e)(2), then the
remainder of § 2254(e)(2) would be a dead letter, and the
operative standard would be the cause-and-prejudice test.

    Because there was a failure to develop the state court
record in both Jones and Ramirez, § 2254(e)(2) is triggered
and that failure can be excused only if a petitioner meets one
of the strict statutory exceptions in § 2254(e)(2). Because
§ 2254(e)(2) abolishes Keeney’s cause-and-prejudice test,
the fact that Martinez allows postconviction ineffective
assistance to establish cause and prejudice to excuse a failure
to raise a claim does not mean that such ineffective
assistance meets the more demanding excusal standards
established in § 2254(e)(2) to excuse a failure to develop the
record in state court. Neither the Jones panel nor the
Ramirez panel claimed that the exceptions in § 2254(e)(2)
were met, and the prohibition of that section therefore
                        JONES V. SHINN                        25

applies. Under Holland, that means the new evidence in
each case may not be received in considering the merits of
the underlying claim of ineffective assistance of trial
counsel.

                               2

    As explained above, the Jones panel held only that the
evidence developed at the Martinez cause-and-prejudice
hearing in that case could be considered on the merits of the
underlying ineffective-assistance-of-trial-counsel claim.
The Ramirez panel went one step further and held that, after
cause and prejudice have been established under Martinez
(as the Ramirez panel found in that case), the strictures of
§ 2254(e)(2) do not apply at all and the petitioner is “entitled
to evidentiary development to litigate the merits of his
ineffective assistance of trial counsel claim.” Ramirez,
937 F.3d at 1248. The only authority cited for this
proposition is the Detrich plurality, but that opinion (like
Jones) only supports the view that, “[i]f the district court
holds an evidentiary hearing before ruling on the Martinez
motion, evidence received at that hearing is not subject to the
usual habeas restrictions on newly developed evidence.”
740 F.3d at 1247 (emphasis added); see also id. (“even with
respect to the underlying trial-counsel IAC [ineffective-
assistance-of-counsel] ‘claim,’ given that the reason for the
hearing is the alleged ineffectiveness of both trial and PCR
[postconviction-relief] counsel, it makes little sense to apply
§ 2254(e)(2)”). That view is wrong for all of the reasons
explained earlier, but nothing in that rationale justifies taking
the additional step of completely dispensing with the
strictures of § 2254(e)(2) and allowing further evidentiary
26                          JONES V. SHINN

development after the Martinez standard has already been
satisfied. 4

                           *         *        *

   I respectfully dissent from the denial of rehearing en
banc.




     4
      Ramirez’s argument that Arizona waived any objection based on
§ 2254(e)(2) by failing to raise the issue may have some force to the
extent that Ramirez also presents the Jones issue (i.e., the use of the same
evidence for the dual purposes of satisfying Martinez and addressing the
merits), but not as to the Ramirez panel’s additional step of ordering
further evidentiary development after the Martinez standard had been
met. Ramirez’s appeal did not specifically ask for the further relief that
the panel ultimately provided on that score. Arizona therefore had no
occasion to object under § 2254(e)(2) to additional evidentiary
development beyond what was needed to satisfy Martinez. The panel’s
decision presented that § 2254(e)(2) issue for the first time, and Arizona
properly raised the issue in its Petition for Rehearing.
