                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


BARRY LEE JONES,                      No. 18-99006
          Petitioner-Appellee,
                                         D.C. No.
              v.                   4:01-cv-00592-TMB

DAVID SHINN, Director;
STEPHEN MORRIS, Warden,                   OPINION
Arizona State Prison-Eyman
Complex,
       Respondents-Appellants.


     Appeal from the United States District Court
              for the District of Arizona
  Timothy M. Burgess, Chief District Judge, Presiding

         Argued and Submitted June 20, 2019
              San Francisco, California

               Filed November 29, 2019

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

               Opinion by Judge Clifton
2                          JONES V. SHINN

                            SUMMARY*


                          Habeas Corpus

    The panel affirmed in part and vacated in part the district
court’s grant of federal habeas relief to Barry Lee Jones, a
state prisoner who was sentenced to death following his
conviction for one count of sexual assault, three counts of
child abuse, and felony murder for the death of four-year-old
Rachel Gold.

    The panel held that 28 U.S.C. § 2254(e)(2), which
precludes evidentiary hearings on claims that were not
developed in state court proceedings, did not prohibit the
district court from considering the evidence adduced at a
hearing pursuant to Martinez v. Ryan, 566 U.S. 1 (2012)
(concerning cause to excuse procedural default), to determine
the merits of Jones’s underlying ineffective-assistance-of-
counsel claim.

    The panel also concluded that the district court did not err
in determining that (1) the assistance provided by Jones’s
counsel was constitutionally deficient because he failed to
perform an adequate pretrial investigation into whether
Rachel’s injuries were sustained during the time she was
alone with Jones, and (2) Jones has demonstrated prejudice
due to counsel’s failures.

    The panel therefore generally affirmed the order of the
district court that granted Jones habeas relief on the guilt-

    *
      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

phase portion of his IAC claim and ordered the State to
release him from custody unless it initiated new trial
proceedings against him. However, on one of the five counts
of conviction, regarding Jones’s failure to seek medical care
for the victim (Count Four), the panel concluded that the
ineffective assistance only affected the jury’s classification of
Jones’s offense as intentional or knowing but not his
underlying guilt based on a less culpable mental state, such as
recklessness. The panel therefore affirmed the district court’s
grant of Jones’s habeas petition but vacated in part its
remedy. The panel instructed the district court on remand to
amend its order to require that the state court either retry
Jones on Count Four or resentence him on that count for the
lesser included offense of reckless misconduct.


                         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, Phoenix, 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.
4                      JONES V. SHINN

                         OPINION

CLIFTON, Circuit Judge:

    A warden and several other employees of the State of
Arizona (collectively the “State”) appeal the grant of federal
habeas relief to Barry Lee Jones, a state prisoner under
sentence of death. Jones was convicted of one count of sexual
assault, three counts of child abuse, and felony murder for the
death of four-year-old Rachel Gray. Jones v. Ryan, 327 F.
Supp. 3d 1157, 1163–64 (D. Ariz. 2018) (“Jones Habeas”).
To determine whether Jones qualified for habeas relief, the
district court considered evidence presented at hearings to
determine whether Jones could establish cause to excuse the
procedural default of a claim of ineffective assistance of
counsel (“IAC”) pursuant to Martinez v. Ryan, 566 U.S. 1
(2012) (“Martinez hearing”). Id. at 1163. It then concluded
that Jones had established cause to excuse the procedural
default of his meritorious guilt-phase IAC claim that trial
counsel failed to sufficiently investigate the police work,
medical evidence, and timeline between Rachel’s fatal injury
and her death (Claim 1D), and it therefore granted his habeas
petition. Id. at 1163, 1168.

    We hold that 28 U.S.C. § 2254(e)(2), which precludes
evidentiary hearings on claims that were not developed in
state court proceedings, did not prohibit the district court
from considering the evidence adduced at the Martinez
hearing to determine the merits of Jones’s underlying IAC
claim. When a district court holds an evidentiary hearing to
determine whether a petitioner’s claim is excused from
procedural default under Martinez, it may consider that same
evidence to grant habeas relief on the underlying claim.
                       JONES V. SHINN                         5

    We also conclude that the district court did not err in
determining that (1) the assistance provided by Jones’s
counsel was constitutionally deficient because he failed to
perform an adequate pretrial investigation into whether
Rachel’s injuries were sustained during the time she was
alone with Jones, and (2) Jones has demonstrated prejudice
due to counsel’s failures. At Jones’s trial, the State presented
evidence that established that most of Rachel’s injuries,
including her fatal injury, were consistent with infliction on
Sunday, May 1, 1994, between 2:00 p.m. and 5:30 p.m, a few
hours before she was pronounced dead the next morning.
Jones Habeas, 327 F. Supp. 3d at 1169. The State also
presented evidence from several witnesses that supported its
theory that Rachel was in the sole care of Jones during that
time. Id. at 1173–74. At the Martinez hearing, Jones
presented evidence, both from his own experts and from a
government expert’s prior statements, that Rachel may have
in fact been injured earlier. Id. at 1179–80. He also presented
evidence of other potential suspects who had access to Rachel
outside the critical disputed hours, including her mother,
other children in the trailer park, her siblings, and her
mother’s former boyfriend. Id. at 1188–89. Although this
evidence would not necessarily exonerate Jones, there is a
reasonable probability that the jury might have arrived at a
different conclusion on the question of whether Jones had
inflicted the injuries or knowingly failed to seek care. We
generally affirm the order of the district court that granted
Jones habeas relief on the guilt-phase portion of his IAC
claim and ordered the State to release him from custody
unless it initiated new trial proceedings against him.

    However, on one of the five counts of conviction,
regarding Jones’s failure to seek medical care for the victim
(Count Four), the ineffective assistance only affected the
6                        JONES V. SHINN

jury’s classification of Jones’s offense as intentional or
knowing but not his underlying guilt based on a less culpable
mental state, such as recklessness. We therefore affirm the
district court’s grant of Jones’s habeas petition but vacate in
part its remedy. The district court should amend its order to
require that the state court either retry him on Count Four (as
its order currently states, 327 F. Supp. 3d at 1218) or
resentence him on that count for the lesser included offense.

I. Background

    In April and early May 1994, Jones shared his trailer with
his girlfriend Angela Gray, his 11-year-old daughter Brandie
Jones, and Angela’s three children: four-year-old Rachel
Gray, 11-year-old Rebecca Lux (“Becky”), and 14-year-old
Jonathon Lux.1 Jones Habeas, 327 F. Supp. 3d at 1163, 1181.
At approximately 6:15 a.m. on Monday, May 2, 1994, Jones
drove Rachel and Angela to Kino Community Hospital in
Tucson, Arizona. Id. at 1163. Rachel was admitted and
pronounced dead on arrival, caused by a small bowel
laceration due to blunt abdominal trauma. Id. Rachel also had
a laceration to her left scalp, injuries to her labia and vagina,
and multiple internal and external contusions. Id.

    Jones was arrested and charged with:

        (1) engaging in an act of sexual intercourse
        with Rachel, in violation of A.R.S. § 13-1406
        (Count One); (2) causing physical injury to
        Rachel by striking her abdominal area causing


    1
      Because Angela and Rachel have the same last name, we will refer
to them by their first names. We will likewise refer to Rebecca Lux as
“Becky,” Jonathon Lux as “Jonathon,” and Brandie Jones as “Brandie.”
                           JONES V. SHINN                                7

         a rupture to her small intestine under
         circumstances likely to produce death or
         serious physical injury, in violation of A.R.S.
         § 13-3623(B)(1) (Count Two)2; (3) causing
         physical injury to Rachel by bruising her face
         and ear and causing a laceration to her head,
         in violation of A.R.S § 13-3623(C)(1) (Count
         Three); (4) causing Rachel to be placed in a
         situation where her health was endangered
         under circumstances likely to produce death
         or serious physical injury, in violation of
         A.R.S. § 13-3623(B)(1) (Count Four); and
         (5) felony murder, in violation of A.R.S.
         § 13-1105 (Count Five)

Jones Habeas, 327 F. Supp. 3d at 1163.

    Under Arizona law, first degree murder can either be
(1) premeditated, meaning the defendant intentionally or
knowingly caused the death of another with premeditation, or
(2) felony murder, if the defendant caused a death during the
commission of or in furtherance of enumerated predicate
felony offenses. A.R.S. § 13-1105(A) (1994). Those
enumerated predicate offenses include sexual assault (as
charged in Count One) and child abuse under
§ 13-3623(B)(1) (as charged in Counts Two and Four). Id.
§ 13-1105(A)(2); State v. Styers, 865 P.2d 765, 771 (Ariz.
1993) (In Banc); Jones Habeas, 327 F. Supp. 3d at 1212.


    2
      Unless otherwise noted, all references to A.R.S. § 13-3623 are to the
version of the statute in effect at the time Jones was charged and
convicted. The statute was revised in 2000 so the section under which
Jones was convicted, § 13-3623(B)(1), is now § 13-3623(A)(1). See 2000
Ariz. Legis. Serv. Ch. 50 (H.B. 2395) (West).
8                      JONES V. SHINN

Jones was only charged under a felony murder theory. Jones
Habeas, 327 F. Supp. 3d at 1163.

    In Counts Two and Four, Jones was also charged with the
lesser included offenses of child abuse committed recklessly,
A.R.S. § 13-3623(B)(2), and child abuse committed with
criminal negligence, A.R.S. § 13-3623(B)(3). The trial judge
explained that the child abuse charges could only be predicate
felonies for felony murder if Jones committed them
intentionally or knowingly under circumstances likely to
produce death or serious physical injury. Jones Habeas,
327 F. Supp. 3d at 1212.

    The day after Jones’s arrest, May 3, Sean Bruner was
appointed to represent Jones. Id. at 1168. Bruner’s partner
Leslie Bowman also represented Jones as an informal
“second-chair” attorney, although she was never formally
appointed by the trial court. Id.

     Angela was also charged on Counts Four and Five of the
same indictment. Id. at 1163. She was tried separately, prior
to Jones’s trial, and she was convicted on Count Four. Id.
Because the jury determined she had acted recklessly in
failing to render care, rather than intentionally or knowingly,
she was ineligible for felony murder and therefore acquitted
on Count Five. Id. at 1163–64.

    Jones was tried before a jury in April 1995. Id. at 1164.
The trial judge instructed the jurors that the sexual assault
charge (Count One) and two of the child abuse charges
(Counts Two and Four) could be predicate felonies for the
felony murder charge (Count Five) if Jones committed them
intentionally or knowingly under circumstances likely to
produce death or serious physical injury. Id.
                          JONES V. SHINN                              9

    On April 14, 1995, Jones was convicted of one count of
sexual assault, three counts of child abuse, and felony murder.
State v. Jones, 937 P.2d 310, 313 (Ariz. 1997) (“Jones
State”). The jury did not specify which specific felony or
felonies—out of Counts One, Two, and Four—it found as a
predicate for felony murder under Count Five. The jurors
found that both child abuse charges that qualified as predicate
felonies were committed intentionally or knowingly under
circumstances likely to cause serious physical injury or death.
Jones Habeas, 327 F. Supp. 3d at 1164.

    After finding two statutory aggravating factors—that the
crime was especially cruel, A.R.S. § 13-703(F)(6), and the
victim was under the age of fifteen, A.R.S.
§ 13-703(F)(9)—and no statutory or non-statutory mitigating
factors, the trial judge sentenced Jones to death for the
murder.3 Jones State, 937 P.2d 310 at 313. The trial court
sentenced him to a term of 27 years on Count One, 35 years
on Count Two as a class two felony, 3.75 years on Count
Three, and life imprisonment on Count Four as a dangerous
crime against children in the first degree with two prior
predicate felony convictions. A.R.S. §§ 13-604.01(F),
13-604.01(J)(1)(h) (1994).

    The Arizona Supreme Court affirmed Jones’s convictions
and sentences. Jones State, 937 P.2d at 313. It noted that the
following evidence linked Jones to Rachel’s injuries: on the


    3
      Prior to the Supreme Court’s decision in Ring v. Arizona, 536 U.S.
584, 589 (2002), trial judges in Arizona determined mitigating and
aggravating circumstances and decided whether a death sentence should
be imposed. In Ring, the Supreme Court held that this procedure violated
the Sixth Amendment. Id. However, Ring does not apply retroactively.
Schriro v. Summerlin, 542 U.S. 348, 358 (2004).
10                     JONES V. SHINN

day she received her injuries, Jones left his trailer three times
with Rachel in his van; two children saw Jones hitting her
while he drove; Jones stopped at a Quik-Mart to get ice for
Rachel’s head injury; and police found traces of Rachel’s
blood type on his clothing and in his van. Id. While visiting
Jones’s trailer that evening, a friend’s son asked Jones about
Rachel’s condition, and Jones falsely stated that he had taken
her to get examined by paramedics at the fire department. Id.
The court held that the evidence at trial was sufficient to
sustain a guilty verdict on the sexual assault charge in part
because “substantial evidence was introduced to conclude
that Rachel’s physical assault and sexual assault all occurred
within the two-hour time period during which she was alone
with defendant in his van.” Id. at 318–19.

    Jones filed a petition for post-conviction relief (“PCR”),
which included IAC claims based on defense counsel’s
alleged failures to seek mistrial after three jurors saw him in
handcuffs, interview Angela, follow-up on his request for a
second attorney, meet with Jones enough times to adequately
prepare for trial, and explicitly inform Jones of his right to
testify in his own defense. After holding an evidentiary
hearing, the trial court denied his petition. Jones Habeas,
327 F. Supp. 3d at 1165. The Arizona Supreme Court
summarily denied his petition for review. Id.

    Jones initiated federal habeas proceedings on
November 5, 2001, and he filed an amended petition on
December 23, 2002. Id. Claim 1D of his habeas petition
alleged in part that counsel was ineffective for failing to
conduct sufficient trial investigation; adequately investigate
the police work, medical evidence, and timeline of death
versus injury; and conduct sufficient mitigation investigation
                      JONES V. SHINN                       11

for sentencing. Jones v. Schriro, No. CV01-592-TUC-FRZ,
2008 WL 4446619, at *5 (D. Ariz. Sept. 29, 2008).

   Under the doctrine of procedural default,

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

Coleman v. Thompson, 501 U.S. 722, 750 (1991). The district
court determined that the majority of Claim 1D was
procedurally defaulted because it had not been raised and
exhausted in state court. Jones v. Schriro, 2008 WL 4446619,
at *2, *5. As cause to excuse the procedural default of
Claim 1D, Jones alleged that PCR counsel was ineffective for
failing to present this claim in state court. Order, Jones v.
Schriro, No. CV01-592-TUC-FRZ, at 9 (D. Ariz. Sept. 27,
2004), Dkt. 115. Following then-governing Supreme Court
precedent, the district court determined that PCR counsel’s
purported ineffectiveness did not constitute cause because
“there is no constitutional right to counsel in state PCR
proceedings.” Jones v. Schriro, 2008 WL 4446619, at *5. The
court ordered supplemental briefing regarding Jones’s
allegation that it would be a fundamental miscarriage of
justice not to review the entirety of Claim 1D on the merits,
and on September 29, 2008, it denied relief after concluding
Jones had not demonstrated a fundamental miscarriage of
12                       JONES V. SHINN

justice. Jones Habeas, 327 F. Supp. 3d at 1165. In doing so,
it emphasized the demanding nature of the fundamental
miscarriage of justice standard, and noted that while Jones’s
evidence was “compelling and may have been persuasive to
some jurors in the first instance, it is not sufficient on
collateral review to establish that no reasonable juror would
have found Petitioner guilty” as required to meet this
standard. Jones v. Schriro, 2008 WL 4446619, at *14. The
court did, however, issue a certificate of appealability on its
procedural ruling that Claim 1D was in part procedurally
defaulted. Id. at *32.

    While Jones’s appeal from the denial of habeas relief was
pending, the Supreme Court decided Martinez v. Ryan,
566 U.S. 1 (2012). Jones Habeas, 327 F. Supp. 3d at 1165. In
Martinez, the Court held that “procedural default will not bar
a federal habeas court from hearing a substantial claim of
ineffective assistance at trial if, in the initial-review collateral
proceeding, there was no counsel or counsel in that
proceeding was ineffective.” 566 U.S. at 17. On August 19,
2014, we granted Jones’s motion for a limited remand to
reconsider Claim 1D in light of intervening law, including
Martinez.

     The district court ordered supplemental briefing to
address whether cause existed under Martinez to excuse the
procedural default of Claim 1D, and whether Jones was
entitled to habeas relief on the claim. Jones v. Ryan, No. CV-
01-00592-TUC-TMB, 2017 WL 264500, at *1 (D. Ariz. Jan.
20, 2017) (“Jones Evidentiary”). Jones sought review based
on Martinez for Claim 1D allegations that trial counsel was
ineffective for failing to investigate and present evidence to
test the reliability of any of the State’s evidence, including the
timeline between injury and death, and failing to conduct a
                             JONES V. SHINN                                13

reasonably sufficient mitigation investigation for sentencing.
Id. at *2. On January 20, 2017, the district court determined
that an evidentiary hearing was necessary to determine
whether Jones could establish cause to excuse the procedural
default of Claim 1D. Id. at *3. On October 30, 2017, it held
a seven-day evidentiary hearing on the guilt-phase portion of
the IAC claim. Jones Habeas, 327 F. Supp. 3d at 1163.

     On July 31, 2018, the district court held that Jones had
established cause to excuse the procedural default of his
meritorious guilt-phase IAC claim that counsel failed to
conduct an adequate pre-trial investigation, leading to his
failure to uncover key evidence that Rachel’s injuries were
not sustained on the afternoon of May 1, 1994, when she was
alone with Jones. Id. at 1200, 1218. It therefore granted his
habeas petition, ordering the State to release him unless it
initiated retrial proceedings within 45 days.4 Id. at 1163. The
state then filed a notice of appeal.5 Dkt. No. 1. After the
district court denied the State’s motion to stay the district
court’s judgment, we granted the stay and expedited the
appeal. Jones v. Ryan, No. CV-01-00592-TUC-TMB, 2018
WL 5066494, at *1 (D. Ariz. Oct. 17, 2018).




    4
     Jones also made arguments alleging ineffective assistance of counsel
during the penalty phase of his trial, but the district court did not reach the
merits of those claims, leaving them for consideration in the future, if
necessary. See Jones Habeas, 327 F. Supp. 3d at 1218.
    5
      “A certificate of appealability is not required when a state or its
representative . . . appeals.” Fed. R. App. P. 22(b)(3).
14                     JONES V. SHINN

II. Standard of Review

    This court reviews de novo a district court’s decision
regarding habeas relief, including questions regarding
procedural default. Sexton v. Cozner, 679 F.3d 1150, 1153
(9th Cir. 2012). Ineffective assistance of counsel claims are
mixed questions of law and fact which we also review de
novo. Rhoades v. Henry, 638 F.3d 1027, 1034 (9th Cir. 2011).
“Factual findings and credibility determinations made by the
district court in the context of granting or denying the petition
are reviewed for clear error.” Larsen v. Soto, 742 F.3d 1083,
1091–92 (9th Cir. 2013) (citation and internal quotation
marks omitted).

III.    Discussion

     The State challenges the district court’s grant of habeas
relief on Jones’s guilt-phase IAC claim on three grounds.
First, it argues that 28 U.S.C. § 2254(e)(2) should have
prevented the district court from considering evidence
developed to overcome procedural default under Martinez v.
Ryan, 566 U.S. 1, when resolving the merits of the underlying
habeas claim. Second, it argues that the district court erred in
granting habeas relief on all of Jones’s convictions because
counsel consulted with an independent pathologist before
trial, the record is silent as to why counsel did not further
involve the expert, the newly-proffered medical evidence was
imprecise and double-edged, and strong circumstantial
evidence showed Jones’s guilt. Third, it argues that the
district court erred by granting habeas relief on Jones’s Count
Four and Five convictions, based on Jones’s failure to take
the victim to the hospital, because these counts did not
depend on the timing of the victim’s injuries, and the
                       JONES V. SHINN                         15

evidence at the Martinez hearing did not undermine the trial
evidence proving Jones’s guilt on these counts.

A. Consideration of “New Evidence” from Martinez
   Hearing

     Federal habeas courts should not review claims by
prisoners who have not exhausted available state remedies,
including when the state court concludes that the prisoner
defaulted his federal claims pursuant to an “independent and
adequate state procedural rule.” Coleman, 501 U.S. at 731,
750. In Martinez, the Supreme Court recognized that a
“federal habeas court may excuse a procedural default of an
ineffective-assistance claim when the claim was not properly
presented in state court due to an attorney’s errors in an
initial-review collateral proceeding.” 566 U.S. at 5.

    Jones sought review based on Martinez for his Claim 1D
allegations that trial counsel was ineffective for (1) failing to
investigate and present evidence to test the reliability of any
of the State’s evidence, including the medical evidence and
the question of the timeline between injury and death (“guilt
phase”); and (2) failing to conduct a reasonably sufficient
mitigation investigation for sentencing (“sentencing phase”).
Jones Evidentiary, 2017 WL 264500, at *2. The district court
conducted a seven-day evidentiary hearing to determine
whether Jones could establish cause to excuse the procedural
default of Claim 1D. Jones Habeas, 327 F. Supp. 3d at 1163.
That Martinez hearing included testimony and exhibits that
were not previously considered by a state court, including
testimony from trial and PCR counsel, several experts, and
additional testimony from witnesses who testified on behalf
of the State at trial. Id. at 1178. The federal habeas court
extensively considered the evidence and argument presented
16                    JONES V. SHINN

in these proceedings to conclude that (1) Jones had
established cause to excuse the procedural default of his IAC
claim and (2) the claim was meritorious, warranting habeas
relief. Id. at 1163.

    The State argues that 28 U.S.C. § 2254(e)(2) prevents a
district court from considering new evidence developed to
overcome a procedural default under Martinez when
considering the merits of the underlying claim. That section
provides:

       (2) If the applicant has failed to develop the
       factual basis of a claim in State court
       proceedings, the court shall not hold an
       evidentiary hearing on the claim unless the
       applicant shows that . . . the claim relies on
       . . . a factual predicate that could not have
       been previously discovered through the
       exercise of due diligence; and . . . 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.

28 U.S.C. § 2254(e)(2). The State argues that while
§ 2254(e)(2) does not bar new evidence offered to excuse a
procedural default under Martinez, it does govern merits
review and precludes an evidentiary hearing on a claim not
pursued in state court. It argues that the district court
therefore erred by considering evidence outside the state-
court record to grant relief on Claim 1D.
                           JONES V. SHINN                             17

    As we have previously recognized and now explicitly
hold, Martinez’s procedural-default exception applies to
merits review, allowing federal habeas courts to consider
evidence not previously presented to the state court. The
Supreme Court explained in Martinez that if the prisoner’s
state court attorney is ineffective, “the prisoner has been
denied fair process and the opportunity to comply with the
State’s procedures and obtain an adjudication on the merits of
his claims.” 566 U.S. at 11. The Court’s concern was with the
prisoner’s opportunity to “vindicat[e] a substantial
ineffective-assistance-of-trial-counsel claim,” a claim which
“often depend[s] on evidence outside the trial record.” Id.
at 11, 13. The Court held that the federal habeas court may
hear a claim of ineffective assistance of trial counsel where
the initial state collateral proceeding “may not have been
sufficient to ensure that proper consideration was given to a
substantial claim.” Id. at 14.

    In Detrich v. Ryan, 740 F.3d 1237 (9th Cir. 2013) (en
banc), which did not produce a majority opinion, a four-judge
plurality held that Martinez recognized that determining
“whether there has been IAC often requires factual
development in a collateral proceeding.” Id. at 1246
(W. Fletcher, J., plurality).6 Determining whether counsel’s
performance was deficient often requires asking the attorney
to state the strategic or tactical reasons for his actions, and
determining prejudice often requires discovery and an


    6
      Although this conclusion was not “supported by a majority of the en
banc panel,” none of the other opinions discussed the issue of whether
Martinez allowed factual development in a collateral proceeding when
considering the underlying claim, so they did not express any opposition
to the proposition stated by the plurality opinion. See Clabourne v. Ryan,
745 F.3d 362, 375 (9th Cir. 2014).
18                     JONES V. SHINN

evidentiary hearing to assess the effect of the deficient
performance. Id. at 1246–47. As the district court explained
in denying the State’s motion to stay,

       [I]t is simply illogical, and extraordinarily
       burdensome to the courts and the litigants, in
       a post-Martinez world, for a court to allow
       full evidentiary development and hearing on
       the Martinez “claim,” but not allow
       consideration of that very same evidence as to
       the merits of the underlying trial-counsel IAC
       claim because his constitutionally ineffective
       PCR counsel failed to raise that claim.

Jones v. Ryan, 2018 WL 5066494, at *4.

    While the Supreme Court held in Cullen v. Pinholster that
a federal habeas court is ordinarily confined to the evidentiary
record from state court, it held that the court was limited to
“the record that was before the state court that adjudicated
the claim on the merits.” 563 U.S. 170, 180 (2011) (emphasis
added). Because the underlying claim in a Martinez case has
not been adjudicated on the merits in a state-court proceeding,
“Martinez would be a dead letter if a prisoner’s only
opportunity to develop the factual record of his state PCR
counsel’s ineffectiveness had been in state PCR proceedings,
where the same ineffective counsel represented him.”
Detrich, 740 F.3d at 1247. We have explained that “Martinez
may provide a means to show ‘cause’ to overcome the default
and reach the merits of the new claim.” Dickens v. Ryan,
740 F.3d 1302, 1321 (9th Cir. 2014). The Supreme Court in
Martinez recognized that “[c]laims of ineffective assistance
at trial often require investigative work.” 566 U.S. at 11.
                       JONES V. SHINN                         19

Courts may require expanded records to reach the merits of
these claims.

     Other courts have reached the same conclusion as our
four-judge plurality from Detrich. The Eighth Circuit held
that Martinez provided an exception to § 2254(e)(2) in Sasser
v. Hobbs, 735 F.3d 833, 853–54 (8th Cir. 2013). The Fifth
Circuit has also noted that if the district court found cause and
prejudice for the procedural default of any claim, “[i]t should
then revisit the merits of any such claim anew,” and its cause
and prejudice findings “may directly address its merits
determination of certain elements of that claim.” Barrientes
v. Johnson, 221 F.3d 741, 771, 771 n. 21 (5th Cir. 2000). See
also Woods v. Sinclair, 764 F.3d 1109, 1138 (9th Cir. 2014)
(citing the four-judge plurality from Detrich and remanding
to the district court to determine whether defendant’s IAC
claims were substantial and whether PCR counsel was
ineffective for failing to raise them, potentially with an
evidentiary hearing and an opportunity to expand the record).

    We conclude that 28 U.S.C. § 2254(e)(2) does not prevent
a district court from considering new evidence, developed to
overcome a procedural default under Martinez v. Ryan, when
adjudicating the underlying claim on de novo review.

B. Merits of Ineffective Assistance Claims

    In his habeas petition, Jones claimed that his Sixth
Amendment right to effective assistance of counsel was
violated by his trial counsel’s failure to adequately investigate
the police work, medical evidence, and timeline between
Rachel’s fatal injury and her death. Jones Habeas, 327 F.
Supp. 3d at 1168. At trial, the State presented evidence that
most of Rachel’s injuries were inflicted on the afternoon of
20                        JONES V. SHINN

May 1, and she was in Jones’s sole care multiple times that
afternoon. Id. at 1169, 1174–77.

    As the district court correctly noted, id. at 1167, claims of
ineffective assistance of counsel are governed by the
principles set forth in Strickland v. Washington, 466 U.S. 668
(1984). To demonstrate prejudice under Strickland, Jones had
to show that (1) counsel’s performance was deficient so he
“was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment” and (2) “the deficient
performance prejudiced the defense” so that he was deprived
of “a trial whose result is reliable.” Id. at 687. As to the
prejudice prong, Strickland requires a petitioner to “show that
there 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.

    The district court concluded that trial counsel acted
unreasonably in failing to conduct a medical investigation
into the timing of Rachel’s injuries. Jones Habeas, 327 F.
Supp. 3d at 1201. It found there was a reasonable probability
that, absent counsel’s failures, the jury would have had a
reasonable doubt as to Jones’s guilt. Id. at 1209. The State
argues the district court erred by excusing Claim 1D’s
procedural default and granting relief under Strickland.7




     7
      Like the parties, we will discuss Counts Four and Five separately
because these depend on Jones’s failure to obtain care for Rachel, rather
than on any harm he personally caused.
                       JONES V. SHINN                        21

   1. Trial Evidence

   Throughout the trial, the parties tried the case on the
premise that Rachel sustained her injuries on the afternoon
before her death. In opening statements, the prosecutor stated:

       [W]hat we will prove to you is that . . . Barry
       Jones was the only adult that had care of
       [Rachel] that day and thus the only adult that
       had the opportunity, in fact, was seen by
       neighborhood children abusing Rachel, that he
       is her rapist, and that he is her murderer.

Defense attorney Bruner similarly stated: “Everything in this
case is going to center around what happened on Sunday,
May 1st. Specifically, a couple of disputed hours . . . .” In
Counts One through Three, Jones was charged with and
found guilty of inflicting the specific injuries to Rachel’s
abdomen, scalp, and vagina. See Jones Habeas, 327 F. Supp.
3d at 1211–12. In Count Four, he was charged with
intentionally or knowingly endangering Rachel by failing to
take her to the hospital. Id. at 1212. The jury found that Jones
committed Count One and Counts Two and Four knowingly
and intentionally, so all three could serve as predicate
felonies to support the felony murder conviction in Count
Five. Id.

    At trial, the State presented evidence from several
witnesses to establish that most of Rachel’s
injuries—including bruising, her scalp injury, her vaginal
injury, and the fatal bowel injury—were consistent with
infliction between 2:00 p.m. and 5:30 p.m. on May 1, 1994.
Id. at 1169. It presented medical testimony by Steven Siefert,
an emergency room doctor at Kino Community Hospital;
22                    JONES V. SHINN

Sergeant Sonia Pesquiera of the Pima County Sheriff’s
Department (“PCSD”), the lead investigator of Rachel’s
death; and Dr. John Howard, a forensic pathologist with the
Pima County Medical Examiner’s office. Id. Defense counsel
did not present any evidence regarding the timeline. The
defense, in fact, presented only one witness of its own,
Jones’s 11-year-old daughter Brandie. Id.

    Dr. Siefert estimated that Rachel died between two or
three hours before she arrived at the hospital at 6:16 a.m. on
May 2, 1994. Id. at 1169–70. He and Dr. Howard both
observed extensive bruising, including around the left side of
her face and behind her ear, consistent with a slap or blow to
the side of the head. Id. at 1170. Dr. Howard opined that
many of the bruises and abrasions were inflicted
approximately one day prior to death. Id. He explained that
the number and multiple locations of injuries was consistent
with Rachel having been beaten. Id. at 1171. Dr. Siefert also
opined that Rachel’s bruising would have begun to appear
within a few hours of infliction, and assessed that 95 percent
of her injuries occurred within 12 to 24 hours before her
death. Id.

    Rachel had an inch-long head laceration, above and
behind her left ear, that went down to the skull bone. Id.
Dr. Howard assessed that the injury was consistent with
having been caused by a blunt force object with a relatively
straight edge, like a pry bar found in Jones’s van. Id. He
opined that it was consistent with occurrence between
2:00 p.m. and 5:30 p.m. on May 1. Id.

    Sergeant Pesquiera testified that she observed
discoloration on the outside of Rachel’s labia and pooled,
bright red blood on the inside. Id. Dr. Howard determined
                       JONES V. SHINN                       23

that she had blunt force injuries to her labia, bruising and
scrapes, and a half-inch tear to her vagina. Id. He concluded
that these genital injuries occurred about one day prior to her
death, consistent with the time frame of “dozens” of her other
injuries, and were consistent with penetration or attempted
penetration. Id.

    Dr. Howard determined that Rachel died of blunt
abdominal trauma that caused a laceration of the small bowel.
Id. He explained that she had sustained blunt force injury to
her abdominal organs, causing a tear of the small bowel and
bruising of the tissues around the small bowel, the wall of the
large bowel, and connecting the intestine to the back of the
abdominal wall. Id. at 1172. The rupture of her bowel
required a force equivalent to a fall from more than two
stories, an automobile accident at greater than 35 miles per
hour, or a forceful directed blow to the abdomen. Id. This
rupture caused peritonitis, inflammation and irritation of the
lining of the abdominal tissues that causes death over a period
of hours to days, or sometimes weeks. Id. He opined that the
“injury is typical of having occurred about one day prior to
death,” in the same age range as the scalp, genital, and
external injuries. Id. He opined that it could have occurred in
the 24 hours prior to her death, possibly between 2:00 p.m.
and 5:30 or 6:00 p.m. on May 1. Id. Defense counsel used
Dr. Howard’s testimony to argue that if the pry bar had been
wielded by an adult, it would break ribs, fracture skulls, and
do incredible damage to a small child, but he did not ask
Dr. Howard any questions about the timing of any of
Rachel’s injuries. Id.

   The State also presented testimony by Sergeant Pesquiera,
Arizona Department of Public Safety Criminalist Edward
Lukasik, and PCSD Detective Clark that blood consistent
24                     JONES V. SHINN

with having come from Rachel was found in Jones’s van and
on blue jeans he wore at the time of his arrest. Id. Based on
impression stains, the State argued that Rachel’s head was
bleeding as she lay in the back of the van because that was
where she was sexually assaulted, beaten, and hit with the pry
bar on the third trip away from the house. Id. at 1173. The
State also argued based on the evidence of spatter stains
found on the passenger seat, floor of the van, and Jones’s
shirt sleeve that after the assault, Jones put Rachel in the
passenger seat and kept hitting her “trying to make her shut
up.” Id.

    In support of its theory that Rachel was in Jones’s sole
care during the afternoon of Saturday, May 1, the State
presented the testimony of Rachel’s sister Becky;
neighborhood children Ray and Laura, who claimed to see
Jones hit Rachel; Jones’s former girlfriend Joyce Richmond;
and her adult son Terry. Id. at 1174–77.

     Becky testified that there was a week when Rachel started
“being scared” of Jones and would not go to him when he
called her over. Id. at 1174. She testified that on the morning
of Sunday, May 1, she, Rachel, and Jonathon got up early,
watched cartoons, and ate lunch until Jones got up around
2:30 or 3:00 p.m., when a friend of his stopped by to see him.
Id. Shortly after his friend left, Jones gave Becky and her
brother permission to ride their bikes. Id. Becky then saw
Jones leave his van on his first of three trips with Rachel that
day, to go to the store for food, and he returned an hour and
a half later. Id. Becky testified that Rachel was not sick or
crying and seemed okay. Id. She testified that approximately
fifteen to twenty minutes after Jones returned from the store,
he left again for about thirty minutes, and Rachel seemed
okay again when Becky saw her after this trip. Id. Becky
                        JONES V. SHINN                         25

further testified that Jones later took Rachel to his brother’s
house, and they were back before Becky left for her friend’s
house around 5:00 or 6:00 p.m. Id. The State argued that
Jones assaulted Rachel in the back of the van on this third
trip. Id.

    Becky testified that around 6:30 p.m., when she returned
from her friend’s house, she saw Rachel was on the couch,
pale, bleeding from her head, vomiting, and with bruises on
her face, hands, and fingers. Id. That was also the first time
Becky saw her mother awake that day. Id. Jones left for a
time, and when he returned, Angela took Rachel outside
where Angela and Jones had an argument. Id.

     Norma Lopez testified that on May 1, she sent her eight-
year-old twins Ray and Laura to the Choice Market on
Benson Highway at 3:00 p.m. or 4:00 p.m. Id. at 1175. When
they returned, Ray told Norma he saw a yellow van with a
man inside hitting a little girl. Id. The next day Norma heard
on the news that a man had been arrested in relation to the
death of a little girl, and her children identified that person as
the man they had seen in the van. Id. She later called 911 to
report the twins’ identification. Id. Ray and Laura also
testified at Jones’s trial that they had seen a man hitting a
little girl while driving, although Ray acknowledged that he
could not see the driver’s face and Laura admitted she could
just see “a little bit” through the front window of the van. Id.
at 1175–76.

   Joyce Richmond, Jones’s former girlfriend, testified that
she returned Brandie to Jones’s trailer sometime between
7:00 p.m. and 8:00 p.m. on May 1. Id. at 1176. Richmond saw
Rachel on the couch with a bleeding head, but without bruises
on her face or hands. Id. She was accompanied at Jones’s
26                     JONES V. SHINN

trailer by her adult son Terry, who testified that he questioned
Jones about Rachel’s bleeding head. Id. He testified that
Jones told him he had taken Rachel to the fire department. Id.

    Becky testified that she woke up early in the morning on
May 2, found Rachel in the bedroom doorway, and put her
back in bed. Id. at 1177. She next woke to her mother yelling,
and Jones then took Angela and Rachel to the hospital. Id.
Jones returned and took Becky and Brandie to a neighboring
camp, where law enforcement located Jones and transported
him to the Sheriff’s Department at 8:00 a.m. on May 2. Id. On
the way there, Jones was upset, said there was something
wrong with his little girl, and asked if they would take him to
see her. Id.

    Jones’s only witness, his daughter Brandie, testified that
she saw a six-year-old boy hit Rachel in the stomach with a
metal bar on April 30. Jones v. Schriro, 2008 WL 4446619,
at *8. The State pointed out numerous inconsistencies
between her testimony at trial, interviews she gave to law
enforcement, and her testimony at deposition; Brandie also
admitted lying to detectives and defense counsel. Jones
Habeas, 327 F. Supp. 3d at 1177.

     2. Martinez Hearing

    At the Martinez evidentiary hearing, the court heard
testimony from defense trial counsel Sean Bruner and Leslie
Bowman; defense PCR counsel James Hazel; lead
investigative detective Sergeant Sonia Pesquiera; forensic
pathologists Dr. Philip Keen, Dr. Janice Ophoven, and
Dr. John Howard; emergency medicine and trauma specialist
Dr. Mary Pat McKay; biomechanics and functional human
anatomy expert Dr. Patrick Hannon; and crime scene and
                      JONES V. SHINN                      27

bloodstain pattern analyst Stuart James, among others. Id.
at 1178. The court found that the evidence presented during
those proceedings about which trial and PCR counsel were
aware or should have been aware would have suggested the
need for counsel to conduct further investigation into the
medical timeline, blood evidence, and eyewitness testimony.
Id. As discussed further below, the evidence suggested the
bruises could not be reliably dated and might have resulted
from natural or accidental processes; the scalp, vaginal, and
fatal injuries were likely at least two days old; and the
bloodstains were not typical of those produced during a
beating.

     On July 14, 1994, on defense counsel’s motion, the trial
judge authorized up to $1,000 for a defense expert to review
Rachel’s autopsy report or to conduct a second autopsy. Id.
at 1180. On July 20, 1994, Bowman sent forensic pathologist
Dr. Keen a letter acknowledging Dr. Keen’s agreement to
review Rachel’s autopsy report, and posing several questions
for Dr. Keen to consider when reviewing the report, including
whether Rachel’s injuries could be dated and the amount of
force necessary to inflict them. Id. Bowman confirmed in the
letter that Dr. Keen had explained that his review of the
autopsy “may involve obtaining access to photographs, slides
and other physical evidence” and such access could “be
arranged as necessary.” Id.

    At the Martinez hearing, Bowman acknowledged that it
would have been reasonable to anticipate that the State would
present medical evidence dating Rachel’s injuries to the
afternoon of May 1, and Bruner testified that he did expect
that at some point the State would present medical evidence
tying Rachel’s injuries to those couple of disputed hours.
Jones Habeas, 327 F. Supp. 3d at 1199. Dr. Keen testified
28                     JONES V. SHINN

that he “would not have speculated about the time of injury”
without receiving the tissue slides. He explained that he had
no recollection of ever reviewing any photographs, slides, or
other physical evidence, and there is no record that he had
ever received such evidence. Jones Habeas, 327 F. Supp. 3d
at 1180. Bowman also testified that she knew that an
examination of the tissue slides was necessary in order to date
Rachel’s injuries, and that it was possible that she and Bruner
“dropped the ball and didn’t follow up properly.”

    About a month later, on August 18, 1994, defense counsel
and Dr. Keen spoke by phone, but neither can recall what was
discussed during that call. Id. Four days later, on August 22,
1994, Rachel’s body was released for burial with the consent
of defense counsel and without a second autopsy. Id.
Dr. Keen did not testify at Jones’s trial. Id.

     We must consider whether there was evidence presented
at the Martinez hearing but not at trial that might have created
reasonable doubt. See Daniels v. Woodford, 428 F.3d 1181,
1201 (9th Cir. 2005) (comparing “the evidence that actually
was presented to the jury with that which could have been
presented had counsel acted appropriately”).

    Sergeant Pesquiera decided early in the investigation that
Rachel’s injuries occurred on Sunday, May 1, even though
she never asked Dr. Howard to share his findings on the
timing of the injuries. Jones Habeas, 327 F. Supp. 3d at 1178.
In his pretrial interview and during Angela’s trial,
Dr. Howard suggested a larger window of time during which
Rachel’s injuries might have been inflicted, including
potentially April 30. Id. at 1179. Sergeant Pesquiera did not
document inquiry to any medical professional about the
timing of Rachel’s injuries, and she agreed at the evidentiary
                       JONES V. SHINN                       29

hearing that if she had more precise medical information that
showed the injuries could have happened several days earlier,
as Dr. Howard’s 2004 declaration suggested, she would have
expanded her investigation. Id. at 1178–79.

    During his pretrial interview, Dr. Howard stated there
were no tests available to determine the exact age of bruises,
but he could provide approximations. Id. at 1179. Dr.
Ophoven explained that interpreting the age of bruises from
physical appearance and color was recognized by the forensic
community to be very inaccurate and should not be done. Id.
at 1193. Dr. Howard agreed that he would have told the
attorneys that you cannot really distinguish or date bruises to
a specific day had the attorneys asked him about that at
Jones’s trial. Id.

    Dr. Ophoven testified that some of the marks on Rachel’s
body, along with wounds that were actively bleeding, could
have been caused by metabolic changes at the cellular level
from the body not getting enough oxygen and glucose. Id.
She further stated that it was possible many of the bruises
observed on Rachel’s body at the time of her death could
have been caused by falls or other injuries sustained while
Rachel attempted to walk or otherwise move around during
the final stages of sepsis and peritonitis. Id. at 1194.

    During his pretrial interview, Dr. Howard stated the injury
to Rachel’s scalp was “[p]robably two days old,” and he
elsewhere made reference to the scalp injury as being
72 hours or older. Id. at 1179. Dr. Ophoven reviewed gross
photographs of the scalp injury and believed they were
consistent with Dr. Howard’s opinion in his pretrial
interview. Id. at 1194. Both Dr. Hannon and Dr. Ophoven
concluded that the pry bar found in the van did not cause
30                     JONES V. SHINN

Rachel’s scalp injury or the fatal injury to her bowel, and both
agreed it was possible the injury could have been inflicted by
another child. Id.

    In his pretrial interview, Dr. Howard stated that the
vaginal injury most likely occurred one or two days before
death. Id. at 1179. At Angela’s trial, Dr. Howard testified that
the minimal age of the vaginal injury was 12 hours prior to
death, but was more typical of around 24 hours. Id.

    Dr. Ophoven conducted a microscopic examination of the
physical evidence of Rachel’s vaginal injury obtained during
autopsy and concluded that Rachel had a vaginal injury that
was weeks old, and possibly predated the time period in
which Rachel lived with Jones. Id. at 1192. Dr. Keen also
reviewed the photo micrographs of Rachel’s vaginal injury
and identified connective tissue indicating that the vaginal
injury was multiple days, possibly weeks, old, and was older
than the abdominal injury. Id. Both Dr. Ophoven and
Dr. Keen agreed that the evidence of fresher blood in
Rachel’s vaginal area indicated a newer injury in combination
with an older injury, but this did not necessarily indicate
recent intentional sexual trauma as opposed to irritation of an
older injury, poor hygiene, itching or scratching, or reopening
of an older wound during the death process. Id. On cross-
examination, Dr. Howard admitted that his testimony at
Jones’s trial could have left the jury with the misimpression
that the vaginal injury was most consistent with infliction
between 2:00 and 5:00 on the afternoon of Sunday, May 1,
while his findings were that the injury was most consistent
with infliction on Saturday, April 30. Id. at 1193.

    During his pretrial interview, Dr. Howard was not asked
if he could date the small bowel injury, but he did say it could
                         JONES V. SHINN                          31

take hours to a day to develop severe symptoms of the
associated peritonitis, and then an unspecific number of hours
after that to die. Id. at 1179. At Angela’s trial, he testified that
the internal injury was “most consistent” with 24 hours prior
to death. Id.

    At the Martinez hearing, both Dr. Ophoven and
Dr. McKay concluded that the injury to Rachel’s small bowel
occurred at least 48 hours (and probably many more hours)
before her death. Id. at 1190. Dr. Ophoven arrived at this
conclusion based on her review of the autopsy records and
supporting documentation, including photographs and tissue
slides taken during Rachel’s autopsy. Id. Dr. McKay testified
regarding her personal experience treating duodenal injuries
like Rachel’s as well as an extensive literature review she
undertook focused on pediatric injuries involving duodenal
rupture, perforation, laceration, treatment and outcomes. Id.
at 1191. In her study of more than 200 cases of intestinal
injury in children over many decades, including at least
160 cases of duodenal perforation describing the injury
timeline from diagnosis, she did not find a single reported
case in which a duodenal injury resulted in death within
48 hours after the known time of injury. Id. Dr. Ophoven and
Dr. McKay agreed that there was nothing in Rachel’s medical
records that would suggest that her inflammatory response to
the injury would deviate from the standard case. Id.
Dr. Howard explained that if he had been asked the right
questions at Jones’s trial, he would have testified truthfully
that in his judgment the injury was most consistent with
having occurred prior to May 1, but he admitted that he did
not make this finding clear to Jones’s jury. Id. at 1192.

    Using bloodstain analysis principles that were available
in 1994, blood pattern analyst Stuart James testified that the
32                     JONES V. SHINN

bloodstains he observed in the van were consistent with
Rachel being carried or moved within the van while she was
bleeding from an open wound. Id. at 1195. He concluded that
the bloodstains were not typical of those produced during a
beating because there was only a single laceration on
Rachel’s head, which often just produces blood flow and not
impact splatter. Id. He further explained that the traces of
blood on Jones’s May 2 clothing indicated contact and
proximity to a source of wet blood but were insufficient to
conclude anything about whether a beating took place in the
van. Id. James testified that these stains could have occurred
as the result of lifting or otherwise attending to Rachel while
she was bleeding. Id.

     3. Counts One, Two, and Three

    The district court concluded that the convictions of Jones
on Counts One, Two, and Three all depended on the premise
that Jones physically and sexually assaulted Rachel on May 1,
when she was in his custody, and there was a reasonable
probability that the jury would have had a reasonable doubt
about that conclusion had defense counsel performed
adequately to challenge the premise that the injuries were
inflicted at that time. Id. at 1212.

        a. Deficient Performance

    Although the court defers to a lawyer’s strategic trial
choices, “counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary.” Strickland, 466 U.S.
at 691. The State argues the district court departed from
Strickland’s presumption of reasonableness and effectively
presumed that counsel behaved unreasonably.
                       JONES V. SHINN                        33

    In particular, the State argues that defense counsel acted
reasonably by consulting with independent medical
pathologist Dr. Philip Keen before trial, specifically inquiring
about the timing of Rachel’s injuries. Because neither
Dr. Keen nor Jones’s attorneys could recall the content of the
conversation between Dr. Keen and counsel or the reason
Dr. Keen was not involved further in the case, the State
contends that the court should have presumed counsel acted
reasonably and strategically. The State argues the court’s
factual finding that counsel abandoned the medical
investigation based on “inattention and neglect, not reasoned
strategic judgment” was clearly erroneous because no
affirmative evidence established that counsel abandoned their
medical investigation for negligent or inattentive reasons.

    We agree that the “court must indulge a strong
presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Strickland,
466 U.S. at 689. The State correctly notes that neither
Dr. Keen nor counsel could recall the content of their phone
conversation, which might otherwise shed light on exactly
why no further consultation occurred.

    The State does not dispute, however, that both Bruner and
Bowman acknowledged that it would have been reasonable
to anticipate that the State would present medical evidence
dating Rachel’s injuries to the afternoon of May 1. Jones
Habeas, 327 F. Supp. 3d at 1199. The district court concluded
defense counsel acted unreasonably in failing to conduct their
own investigation on the dating of the injuries and in failing
to challenge any of the State’s evidence that suggested all of
Rachel’s injuries were consistent with being inflicted on the
afternoon of May 1, when Rachel was alone with Jones in his
van. Id. at 1200. Defense counsel also never challenged the
34                     JONES V. SHINN

critical injury timeline evidence, failing to impeach
Dr. Howard with his earlier statements and testimony finding
Rachel’s injuries “most consistent” with infliction prior to
May 1. Id. at 1206. Bruner admitted his failure was due to
inattention. Id.

    In her prior letter to Dr. Keen, Bowman acknowledged
that he had explained that his review of the autopsy “may
involve obtaining access to photographs, slides and other
physical evidence.” Id. at 1180. Bowman also testified that
she knew that an examination of the tissue slides was
necessary in order to date Rachel’s injuries, and that it was
possible that she and Bruner “dropped the ball and didn’t
follow up properly.” The State on appeal concedes that
Dr. Keen did not receive those slides. We conclude that the
district court did not clearly err by finding that “[c]ounsel
knew the slides were needed to make a reliable timeline
assessment but failed to ensure they were provided to
Dr. Keen.” Jones Habeas, 327 F. Supp. 3d at 1202.

    Counsel also knew before trial that there was going to be
evidence presented with respect to the interpretation of blood
evidence, but failed to consult with any bloodstain
interpretation expert. Id. at 1203. Becky reported that Jones
and Angela did CPR on Rachel, then rushed her to the
hospital, so there was reason to believe that the trace amounts
of blood on Jones’s clothing might have been transferred
from Rachel’s bleeding head while Jones attempted to
administer aid or transport Rachel to the hospital. Id. The
State does not challenge the district court’s conclusion that
                            JONES V. SHINN                               35

trial counsel’s failure to investigate the blood evidence was
objectively unreasonable. See id. at 1203.8

    The State also argues reasonable counsel could have
elected not to present medical testimony on any count
because that testimony would have shown Jones’s guilt on
Count Four and, by extension, Count Five, the most serious
charge. Dr. Keen and Dr. Ophoven both conceded that Rachel
may have suffered a new vaginal injury shortly before her
death, which may have been damaging to Jones on Count
One, the sexual assault charge, which was also a predicate for
the felony murder charge in Count Five. The State does not
dispute that counsel did not obtain an opinion from Dr. Keen
or any other expert regarding the injury timeline, however, so
counsel’s decision could not have been made based on the
asserted “double-edged” and “imprecise[e]” nature of an
expert’s opinion. We agree with Jones that trial counsel
cannot reasonably choose not to present evidence without
undertaking the underlying investigation that would
undercover the evidence.

         b. Prejudice

    The State argues Jones has not shown a reasonable
probability of a different result given the medical evidence’s
imprecision and the strong circumstantial evidence of his
guilt. It points to testimony by Becky that Rachel was eating

    8
      The district court ultimately concluded that the presentation at trial
by the defense of a bloodstain expert would not have, by itself, established
a reasonable probability of a different verdict. In combination with the
evidence discussed above regarding the timing of the injuries, however,
the district court concluded that the potential impact of a bloodstain expert
strengthened its finding that Jones suffered prejudice from counsel’s
deficient performance. Id. at 1210.
36                     JONES V. SHINN

and behaving normally on April 30 and the morning of
May 1; by two neighborhood children that they saw Jones
striking Rachel in the afternoon on May 1; by a neighbor that
she saw Rachel markedly ill in the late afternoon, after she
had returned from her excursion alone with Jones; and by
Richmond, her son, and Becky that Rachel’s health declined
in the late evening.

    At trial, the State presented substantial evidence that all
of Rachel’s injuries were consistent with infliction on the
afternoon of Sunday, May 1, when she was alone with Jones
in his van. Defense trial counsel could have questioned this
evidence or presented its own investigative findings to cast
doubt on this timeline but failed to do so. Jones Habeas,
327 F. Supp. 3d at 1206.

    At trial, Dr. Howard testified that the abdominal injury
occurred as few as twelve hours prior to death. Id. at 1171.
Drs. Ophoven and Keen both estimated that her abdominal
injury occurred two or more days prior to her death. Id.
at 1190. At Angela Gray’s trial, Dr. Howard indicated that the
internal injuries occurred about 24 hours prior to her death.
Id. at 1179. He also agreed that if asked the right questions by
defense counsel at Jones’s trial, he would have testified
truthfully that the injury was most consistent with having
occurred prior to May 1. Id. at 1192.

    Dr. Howard also testified at Jones’s trial that Rachel’s
scalp injury was consistent with having been inflicted
between the hours of 2:00 p.m. and 5:30 p.m. the day prior to
her death, and her vaginal injury occurred on a time frame
consistent with all her other injuries. Id. at 1171. In his
pretrial interview, Dr. Howard dated the scalp injury as
probably two days old. Id. at 1179. Dr. Ophoven provided the
                       JONES V. SHINN                       37

same earlier time frame for the scalp injury. Id. at 1194.
Dr. Keen estimated that the vaginal injury was older than the
abdominal injury. Id. at 1192. Dr. Ophoven estimated that it
began weeks prior and possibly predated when Jones began
living with Rachel and her family. Id. at 1192. Dr. Howard
also testified at the Martinez hearing that the injury was most
consistent with infliction on Saturday, April 30. Id. at 1193.

    We agree with the district court that the evidence
presented at the Martinez hearings “undermines considerably
the confidence in the outcome of the trial court proceedings.”
Jones Habeas, 327 F. Supp. 3d at 1206.

   4. Count Four

    Counts One to Three charged Jones with inflicting
affirmative injury to Rachel by sexual assault, causing
Rachel’s abdominal injury, and lacerating her scalp and
bruising her, respectively. In contrast, the charge against
Jones in Count Four was instead based on his failure to take
Rachel to the hospital after she was injured. Specifically,
Count Four charged Jones with child abuse under
circumstances likely to cause death or serious physical injury,
in violation of A.R.S. § 13-3623(B). The jury instructions
required proof that:

       1. The defendant acted under circumstances
       likely to cause death or serious physical
       injury; and 2. The defendant caused physical
       injury to a child, or, having custody or care of
       a child, the defendant allowed the health of
       the child to be endangered; and 3. The
       defendant acted with one of the following
       mental states: (A) intentionally or knowingly,
38                     JONES V. SHINN

       (B) recklessly,     or   (C)   with    criminal
       negligence.

    The third element of the crime, involving the defendant’s
mental state, distinguishes between different forms of the
crime. Violation of section 13-3623 is a class 2 felony “[i]f
done intentionally or knowingly,” a class 3 felony “[i]f done
recklessly,” and a class 4 felony “[i]f done with criminal
negligence.” A.R.S. §§ 13-3623(B). The jury instructions
explained that the jury was permitted to find the defendant
guilty of the less serious crimes of child abuse committed
recklessly or with criminal negligence (as opposed to
intentionally or knowingly). In addition, the trial court
correctly instructed the jurors that Counts Two and Four
could only be considered predicate felonies for felony murder
if they were committed intentionally or knowingly, under
circumstances likely to produce death or serious injury. Jones
Habeas, 327. F. Supp. 3d at 1163–64. A finding that Jones
had acted recklessly or with criminal negligence in failing to
obtain medical assistance for Rachel would not support a
conviction for felony murder.

    The jurors returned a guilty verdict, finding that Jones
committed the crime intentionally or knowingly. Id. at 1164.
At sentencing, the court described Count Four as “a
dangerous crime against children in the first degree with two
prior predicate felony convictions” and “a class two felony.”
It then sentenced Jones to life imprisonment, his longest
term-of-years sentence.

    The district court found there was a reasonable probability
that the jury would not have found that Jones acted with a
knowing or intentional state in Count Four if the defense put
on evidence questioning the medical timeline and suggesting
                      JONES V. SHINN                       39

he was not the actual perpetrator of the assault.
Id. at 1213–14.

       a. Deficient Performance

    The State argues counsel reasonably attempted to
challenge Count Four only on the ground that Jones lacked
care or custody of Rachel because the Arizona Supreme
Court did not pronounce the legal standard on that issue until
his case. See Jones State, 937 P.2d at 314–16. Although it
may have been reasonable for counsel to challenge Count
Four on the ground that Jones lacked care or custody, that
defense was not incompatible with a defense based on the
injury timeline. Defense counsel could have made both
arguments. The fact that counsel brought a separate, non-
antagonistic defense should not affect the relevant Strickland
inquiry of whether counsel’s performance was deficient and
prejudicial in failing to adequately investigate the medical
evidence and medical timeline of Rachel’s injuries. See Jones
Habeas, 327 F. Supp. 3d at 1212 n.17.

     The State also argues the medical testimony Jones
presented at his habeas proceeding was double-edged, so
reasonable counsel could have elected to omit it, precluding
a finding of deficient performance. As noted above, however,
counsel’s decision could not have been made based on the
doubled-edged nature of experts’ opinions because counsel
did not obtain an expert’s opinion on the injury timeline.
Counsel could not have decided not to present evidence
because it was double-edged if he was never aware of that
evidence in the first place.
40                     JONES V. SHINN

       b. Prejudice

    To prove Jones acted knowingly, the State had to prove
he was “aware or believe[d]” Rachel’s health was endangered
and she needed medical treatment. A.R.S. 13-105(9)(a)–(b).

    The State argues Jones’s expert witnesses at the Martinez
hearing conceded facts sufficient to prove Jones’s guilt. It
argues Count Four is “established if Jones intentionally or
knowingly permitted Rachel’s health to be endangered,” so
it does not matter whether he lacked knowledge of the extent
of Rachel’s injuries. (emphasis in original). In support of this
proposition, it cites to State v. Payne, 314 P.3d 1239 (Ariz.
2013); State v. Mahaney, 975 P.2d 156 (Ariz. App. 1999);
and Varela v. Ryan, No. CV-15-1971-PHX-JJT (JFM), 2016
WL 8252819 (D. Ariz. Nov. 15, 2016). The State argues the
evidence, including concessions by Drs. Ophoven and
McKay, establish that Jones was aware Rachel’s condition
was declining and her health was endangered, yet he did
nothing to help her.

    As the State itself acknowledges, though, state law
requires evidence that Jones intentionally or knowingly
permitted that Rachel’s health be endangered. A.R.S. § 13-
105(9)(a)–(b). The Arizona Court of Appeals has defined this
term as “expose to potential harm,” which “requires more
than the ordinary danger to which children are exposed on a
daily basis.” Mahaney, 975 P.2d at 159, 159 n.4. While the
Arizona Supreme Court has affirmed that the trial court need
not allow the defendant to argue that the State must prove the
child was abused under circumstances that the defendant
intended or knew were likely to cause death or serious
physical injury, it did so because “the mens rea refers to the
act that the defendant ‘does.’” Payne, 314 P.3d at 1260–61.
                       JONES V. SHINN                         41

An Arizona district court has also concluded that “the danger
must result from the defendant’s actions; pre-existing danger
from someone else’s actions does not suffice.” Varela, 2016
WL 8252819, at *13. We agree with the district court in this
case that “[i]f Petitioner was not the perpetrator, if he did not
cause the injuries, there was little evidence presented at trial
that would suggest he was put on notice of the severity of the
injuries, and thus could form the requisite intentional and
knowing mental state.” Jones Habeas, 327 F. Supp. 3d
at 1213.

    At the habeas hearing, Dr. Ophoven described the likely
symptoms of Rachel’s cause of death, a ruptured duodenum
with dehydration, shock, and eventually peritonitis. She
described how “they wouldn’t feel good, but they would not
necessarily look like they were suffering from an impending
catastrophe.” She described cases of children, as well as
adults, not appearing to need medical attention “until there’s
actually a catastrophic decompensation like happened in this
case,” which could be “as short as two or three hours.” She
described how in children, “the period before irreversible
shock can be very short,” so until that moment, “you may or
may not appreciate that a catastrophic event is about to take
place.” She also testified that the symptoms of small intestine
injury could be missed, as the symptoms frequently are not
interpreted as serious until the catastrophe manifests itself.

    Dr. McKay testified that the symptoms of discomfort and
pain would vary by person. She explained that children in the
victim’s age group might not have the ability to explain that
the symptoms were different or worse than normal stomach
ache. She also testified that in her personal experience, she
had seen delay in severe symptoms and in diagnosis of
duodenal injuries.
42                     JONES V. SHINN

    Dr. Ophoven and Dr. McKay both testified that the
seriousness of an injury like Rachel’s could readily be missed
until the final stages. At the hearing on November 1, 2017,
Dr. Ophoven testified that there could be a significant delay
of symptoms that looked really bad from duodenum injury.
We conclude that there is a reasonable probability that the
jury would not have found that Jones intentionally or
knowingly exposed Rachel to “more than the ordinary danger
to which children are exposed on a daily basis.” See
Mahaney, 975 P.2d at 159 n.4.

    Furthermore, both Jones and Rachel’s mother Angela had
care or custody of Rachel in the hours leading up to her death.
Angela was charged with and convicted of endangering
Rachel by failing to obtain medical assistance in Count Four,
but she was found by the jury in her trial to have acted only
recklessly, not intentionally or knowingly. We note that
Angela told police that she and Jones discussed taking Rachel
to the hospital on the night of May 1, but she was “scared”
that if she did so “they might take her away” because of the
cut on her head and the bruises on her stomach. Jones
Habeas,327 F. Supp. 3d at 1184. Nonetheless, her jury
determined she had acted only “recklessly.” Id. at 1163. As
a result, she was only convicted of the lesser included class 3
felony, for which she was sentenced to a term of 8.75 years.

    We conclude that it was reasonably probable that a
similar verdict would have been reached on Count Four for
Jones, if the defense had presented evidence that Rachel’s
injuries had been inflicted earlier in time, meaning before the
State had established that Rachel was in Jones’s sole custody.
Although the jury could reasonably have convicted Jones of
intentional or knowing action even including the evidence
counsel should have presented, we conclude that Jones has
                       JONES V. SHINN                        43

shown “that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” See Strickland, 466 U.S. at 694.

    We acknowledge that this is a close question. There was
ample evidence that could have supported a verdict that
Jones’s action in failing to obtain medical assistance was
intentional or at least knowing. Dr. Ophoven acknowledged
that she was “not backing down from [her] opinion that a
caretaker of the child should have known that she needed
immediate medical attention.” She had previously stated her
opinion that in the hours before Rachel, Angela, and Jones
went to bed, “it would have been evident to anyone with
Rachel that she was in need of immediate medical attention,”
so “the decision to withhold medical care is consistent with
fatal neglect.”

    The night before her death, multiple people noticed
Rachel’s condition and pointed it out to Jones. Joyce
Richmond reported that she was at Jones’s trailer the night of
May 1, and Rachel was lying quietly on a pillow with her
head bleeding. Jones Habeas, 327 F. Supp. 3d at 1184. Jones
and Angela told her that some kids had pushed Rachel out of
the van. Id. Shortly after his arrest, Jones himself told police
that he and Angela were up with Rachel much of Sunday
night, and Rachel would throw up anytime she drank
anything. Id. at 1183.

    Jones also told multiple individuals that he had taken
Rachel to get medical attention. Angela told police during
questioning that Jones told her he had taken Rachel to the fire
station where they rinsed her head out and informed him she
was not in need of stitches. Id. at 1184. Joyce Richmond told
police that Jones told her he had taken Rachel to the fire
44                      JONES V. SHINN

station, and they said she would be all right. Id. Terry
Richmond testified that he questioned Jones about Rachel’s
bleeding head, and Jones told him he had taken Rachel to the
fire department. Id. at 1176. When he was interviewed by
police shortly after he was arrested, Jones stated that he did
not take Rachel to the Rural Metro Fire Department, as he
had told Angela and others, because he saw a police vehicle
there and did not have a driver’s license. Id. at 1183. He told
police that he did encounter an EMT at the Quik-Mart who
looked at the cut, shined a light in the eyes, and advised Jones
to “keep the ice pack on it and it’ll be okay.” Id. The captain
of the Rural Metro Fire Department testified that all
emergency encounters were logged, but there were no records
of Jones or Rachel in the call log. Id. at 1176.

     All of that evidence could support a factual finding by the
jury that the failure of Jones to seek medical assistance for
Rachel was deliberate because he did not want to call
attention to his own misconduct. That result was not certain,
however. Most of this evidence applied to support the case
against Angela, as well. She was Rachel’s mother, likely to
have been held most responsible for observing her daughter’s
condition, but the jury in her trial declined to find that she had
acted intentionally or knowingly. It appears to us, as it did to
the district court, that there was a reasonable probability that,
if presented with evidence that Rachel’s injuries had not been
inflicted when she was in Jones’s sole custody, the jury in
Jones’s case would similarly have had a reasonable doubt on
the question of whether Jones’s failure to obtain medical care
for her was the result of intentional or knowing misconduct
instead of recklessness.

   Jones also challenges his conviction on Count Four by
arguing that the State was required to show that the delay in
                       JONES V. SHINN                        45

seeking treatment created or increased a likelihood of death
or seriously physical injury. He argues Dr. Ophoven and
Dr. McKay each cast doubt on whether any actions by Jones
after Rachel appeared ill would have had any impact. Id. As
a result, he contends that he could not be convicted on Count
Four under any mental state, including recklessness, because
Rachel would have died anyway.

    Dr. Ophoven testified that once a person entered
irreversible shock, the system of blood circulation had broken
down and the person could not be recovered even in the
hospital. However, on cross-examination, she clarified that if
Rachel had gone to the doctor before irreversible shock set in,
this would have been a potentially survivable injury. She later
confirmed that these injuries were “very treatable.” Jones’s
experts at the Martinez hearings also agree that his “failure to
take Rachel to the hospital either caused or contributed to her
death.” See Jones Habeas, 327 F. Supp. 3d at 1213. The
evidence does not support the argument that nothing that
Jones did or did not do would have mattered. We also agree
with the district court that “there is evidence that Petitioner
was concerned about getting Rachel care because he would
be perceived as the perpetrator of child abuse,” so he has not
demonstrated that he lacked any criminal mental state. Id.

       c. Remedy

    Sixth Amendment remedies should be “tailored to the
injury suffered from the constitutional violation and should
not unnecessarily infringe on competing interests.” United
States v. Morrison, 449 U.S. 361, 364 (1981). “Thus, a
remedy must ‘neutralize the taint’ of a constitutional
violation, while at the same time not grant a windfall to the
defendant or needlessly squander the considerable resources
46                     JONES V. SHINN

the State properly invested in the criminal prosecution.”
Lafler v. Cooper, 566 U.S. 156, 170 (2012) (citations
omitted).

    With respect to Count Four, this is not a situation where
“resentencing alone will not be full redress for the
constitutional injury.” See Johnson v. Uribe, 700 F.3d 413,
426 (9th Cir. 2012) (quoting Lafler, 566 U.S. at 171). Jones
has demonstrated prejudice as to his specific offense of
conviction but not as to his overall guilt on Count Four. He
has not established a reasonable probability that he would not
have been convicted at all on that charge, particularly of the
lesser included offense of having acted recklessly in failing
to assist Rachel. The district court also concluded that
“Petitioner’s own experts in these proceedings do agree that
Petitioner’s failure to take Rachel to the hospital either caused
or contributed to her death” but concluded that their
testimony did not “show that Petitioner had the requisite
mental state of ‘intentionally and knowingly’ to support a
conviction of the class 2 felony child abuse charge, a felony
murder predicate, as opposed to a lesser charge of the class 3
felony, recklessly, or class 4 felony, negligently.” Jones
Habeas, 327 F. Supp. 3d at 1213. Our own de novo review
leads us to conclude that a conviction on Count Four for
reckless conduct was a reasonable possibility, but that a
complete acquittal on Count Four or a conviction for the
lesser crime of having acted with criminal negligence were
not reasonable possibilities. We therefore conclude that “a
new trial would [not] be tailored to such constitutional
violations and would improperly grant [Jones] a windfall.”
See Loher v. Thomas, 825 F.3d 1103, 1122 (9th Cir. 2016).
The appropriate remedy for this error is resentencing based
on the lesser included offense, for reckless rather than
intentional or knowing conduct. Alternatively, because the
                      JONES V. SHINN                       47

evidence could have supported a conviction on Count Four
based on intentional or knowing misconduct by Jones, the
State may elect to retry him on that charge.

      5. Count Five

    Count Five charged Jones with felony murder for either
sexual assault of a minor under fifteen (Count One) or child
abuse committed intentionally or knowingly under
circumstances likely to cause death or serious physical injury
(Counts Two and Four). Jones Habeas, 327 F. Supp. 3d
at 1212. The jury found Jones guilty of Count Five after
finding that he had committed Counts Two and Four under
circumstances likely to produce death or serious physical
injury with a knowing or intentional mental state. Id. The
habeas court concluded that Jones had demonstrated
prejudice with respect to the capital charge because there was
a reasonable probability that the jury would not have
convicted Jones of any of the predicate felonies. Id. at 1214.

    As discussed above, the State argues that Jones failed to
prove deficient performance or prejudice on Count Five
largely because the evidence at the Martinez hearing did not
call into question his guilt on Count Four, and by extension
Count Five. Because we conclude Jones has demonstrated
deficient performance and prejudice with respect to Counts
One, Two, and Four, he has also demonstrated ineffective
assistance on Count Five.

IV.      Conclusion

    We hold that the district court properly considered
evidence adduced at the Martinez hearing to determine
whether Jones’s IAC claim was excused from procedural
48                     JONES V. SHINN

default when determining the merits of Jones’s underlying
IAC claim even though this evidence was not before the state
court. Jones has demonstrated that counsel rendered deficient
performance in failing to adequately investigate whether
Rachel’s injuries were sustained during the time she was
alone with Jones, and that he was prejudiced by these failures.
As to Count Four, however, this failure only affected the
jury’s determination that Jones had acted intentionally or
knowingly, but not his underlying guilt on the lesser included
offense of reckless misconduct. Accordingly, we affirm the
district court’s grant of Jones’s habeas petition but vacate in
part the district court’s remedy. The district court is directed
to amend its order accordingly. The State may elect to seek
resentencing on Count Four or to retry him for the more
serious version for that offense. Otherwise, the district court’s
order that the State release Jones from custody unless it
initiates new trial proceedings is affirmed.

  AFFIRMED IN PART; VACATED IN PART;
REMANDED.
