                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


JOE CLARENCE SMITH,                      No. 14-99008
           Petitioner-Appellant,
                                          D.C. No.
               v.                    2:12-cv-00318-PGR

CHARLES L. RYAN; RON CREDIO,
         Respondents-Appellees.           OPINION


     Appeal from the United States District Court
              for the District of Arizona
  Paul G. Rosenblatt, Senior District Judge, Presiding

       Argued and Submitted December 8, 2015
              San Francisco, California

                    Filed May 26, 2016

      Before: Richard A. Paez, Richard R. Clifton,
          and John B. Owens, Circuit Judges.

                Opinion by Judge Paez
2                         SMITH V. RYAN

                           SUMMARY*


               Habeas Corpus / Death Penalty

    The panel affirmed the district court’s denial of Arizona
state prisoner Joseph Clarence Smith’s 28 U.S.C. § 2254
habeas corpus petition challenging his death sentence,
imposed at 2004 resentencing proceedings, for the murders of
Sandy Spencer and Neva Lee.

    The panel held that Smith’s contention that the trial
court’s admission of testimonial hearsay during the
aggravation phase of resentencing proceedings violated his
Sixth Amendment confrontation rights is foreclosed by
Williams v. New York, 337 U.S. 241 (1949), which held that
the Confrontation Clause does not bar courts from
considering unconfronted statements during sentencing
proceedings.

    The panel held that in light of Smith’s reliance on his
sexual sadism diagnosis and the U.S. Supreme Court’s
pronouncement that the prosecution enjoys wide latitude in
admitting rebuttal evidence, it was reasonable for the Arizona
Supreme Court to conclude that the prosecution’s
introduction of substantial evidence of Smith’s prior crimes
during the penalty-phase hearings fell within the boundaries
of due process. The panel held that introduction of this
rebuttal evidence did not violate the Eighth Amendment. The
panel held that any change between Arizona’s 1970’s and
2003 capital sentencing statutes was procedural rather than

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

substantive, and that the state trial court’s rejection of Smith’s
claim that admission of the rebuttal evidence during the 2004
penalty-phase hearings violated his rights under the Ex Post
Facto Clause was therefore not contrary to nor an
unreasonable application of Carmell v. Texas, 529 U.S. 513
(2000).

    The panel held that any vagueness challenge to the
application of the Arizona (E)(2) aggravator (for a previous
conviction for a felony involving the use or threat of violence
on another person) fails because both the trial court and the
Arizona Supreme Court applied the narrowed definition of
the aggravator. The panel held that application of the (E)(2)
aggravator to the facts of Smith’s case was not contrary to nor
an unreasonable application of clearly established federal law.

    The panel held that the Arizona Supreme Court’s
rejection of Smith’s argument that application of the Arizona
(E)(6) aggravator (for offenses committed in an especially
heinous, cruel, or depraved manner) violates the Eighth
Amendment was not an unreasonable application of clearly
established federal law.

    The panel held that because Smith cannot establish
prejudice from counsel’s failure to obtain brain scans, his
claim of ineffective assistance at his 2004 resentencing
proceedings is not substantial, and his procedural default on
that claim cannot be excused under Martinez v. Ryan, 132
S. Ct. 1309 (2012).
4                      SMITH V. RYAN

                        COUNSEL

Michael L. Burke (argued) and Kelly L. Culshaw, Assistant
Federal Public Defenders, Jon M. Sands, Federal Public
Defender, Office of the Arizona Federal Public Defender,
Phoenix, Arizona, for Petitioner-Appellant.

Jon G. Anderson (argued), Assistant Attorney General,
Thomas C. Home, Attorney General, and Jeffrey A. Zick,
Chief Counsel, Office of the Arizona Attorney General,
Phoenix, Arizona, for Respondent-Appellee.


                        OPINION

PAEZ, Circuit Judge:

    In 1977, Joseph Clarence Smith, Jr. was convicted of two
murders and sentenced to death. This is the second time we
have reviewed Smith’s habeas challenge to his death
sentence. In Smith v. Stewart, 189 F.3d 1004 (9th Cir. 1999),
we reversed in part and ordered that a writ of habeas corpus
issue directing the State of Arizona to resentence Smith for
the murders of Sandy Spencer and Neva Lee. Smith was
resentenced to death in 2004 for each murder. After
exhausting his remedies in state court, Smith filed a new
petition in federal court. Applying the standards of the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, the district
court again denied relief. We have jurisdiction under
28 U.S.C. § 2253, and we affirm.
                      SMITH V. RYAN                       5

                              I.

                             A.

   In 1973, Smith was convicted of raping Alice Archibeque.
While on probation for the Archibeque rape, Smith raped
Dorothy Fortner and killed Sandy Spencer and Neva Lee.
Smith was convicted of the Fortner rape and in subsequent
proceedings he was convicted of murdering Spencer and Lee
and sentenced to death.

   In our 1999 opinion, we summarized the facts of the
underlying murders and trial court proceedings. For context,
we repeat that summary here:

           On January 1, 1976, officials of the
       Maricopa County Sheriff’s Department found
       the nude body of Sandy Spencer in the desert
       outside Phoenix. One month later in a
       different desert location, police discovered the
       nude body of Neva Lee. Both teenage
       hitchhikers had been suffocated by having dirt
       forced into their mouths, which were taped
       shut. The assailant stabbed both women
       multiple times, punctured them with needles,
       and bound their wrists with rope.

           Smith, who was on probation from a rape
       conviction, became the prime suspect. Police
       put him under surveillance. When that failed
       to produce probable cause for an arrest, police
       had a female officer pose as a hitchhiker
       to lure Smith into committing false
       imprisonment or battery. He eventually
6                  SMITH V. RYAN

    picked up the officer, took her to his father’s
    machine shop, and grabbed her by both arms.
    After a prearranged signal, police entered and
    arrested him for false imprisonment.

        During Smith’s imprisonment, police
    questioned him about the Lee and Spencer
    murders. At first, he denied his involvement.
    But months later, at his own initiation, Smith
    gave investigators a bizarre account of the Lee
    slaying. He told police that he was present at
    the crime because a friend, John Jameson,
    forced him at gunpoint to drive the victim to
    the desert. Once there, Jameson ordered Lee
    to have sexual intercourse with Smith in order
    to frame Smith for her rape. Smith said
    Jameson then decided to kill Lee. His account
    conflicted with some physical evidence found
    at the scene. Smith later contended that he
    told police no such story.

         Smith went on trial for the Lee murder
    first. Throughout the trial, he maintained his
    innocence, contending that other people
    committed the crime and that investigators
    conspired to frame him. Jameson testified at
    the trial. He denied being present at the
    murder, but said that a man known as
    “Squirrel” bragged about killing two women
    and showed Jameson pictures of the dead
    women. The jury returned a general verdict
    finding Smith guilty of murder.
                      SMITH V. RYAN                       7

           Smith then went on trial for the Spencer
       slaying. The following day, he pleaded guilty
       to the crime shortly after Di Anne
       Jameson—Smith’s girlfriend, John Jameson’s
       ex-wife, and a key prosecution witness—told
       the court that she had been improperly
       contacted by a defense investigator and by
       Smith’s mother. During the plea colloquy, the
       prosecutor expressed doubts about Smith’s
       emotional stability to enter a voluntary plea.
       Nonetheless, the trial court accepted the plea.
       Three weeks later, Smith unsuccessfully
       sought to withdraw the plea, explaining that
       he had only pleaded guilty out of concern that
       his parents and Ms. Jameson would be
       arrested.

Smith, 189 F.3d at 1006–07. After the sentencing hearing for
both convictions, the trial judge found three aggravating
circumstances warranting the death penalty and no mitigating
circumstances. Id. at 1007. The judge sentenced Smith to
death for each of the murder convictions.

    On direct appeal in 1979, the Arizona Supreme Court
affirmed Smith’s convictions but remanded his case for
resentencing because Arizona had revised its capital
sentencing scheme to permit defendants to present additional
mitigating evidence. Id. at 1007 & n.2; see also State v.
Watson, 586 P.2d 1253, 1257 (Ariz. 1978) (invalidating as
unconstitutional the capital sentencing scheme’s limit on
defendants’ right to present mitigation evidence).
Notwithstanding the opportunity to present additional
mitigating evidence at Smith’s resentencing, Smith’s counsel
simply resubmitted the same evidence he had presented in the
8                      SMITH V. RYAN

prior proceeding. Smith, 189 F.3d at 1007. The trial judge
again found no mitigating circumstances and sentenced Smith
to death for each of the murders of Lee and Spencer. Id. at
1008. On direct appeal for the second time, the Arizona
Supreme Court affirmed Smith’s death sentences. Id.

     After unsuccessfully seeking post-conviction relief in
state court, Smith filed a federal habeas petition under
28 U.S.C. § 2254 challenging both his convictions and death
sentences. Id. at 1008. In 1999, we concluded that Smith’s
counsel performed deficiently at the resentencing proceeding.
Id. at 1014. We reversed in part and ordered the district court
to issue the writ and direct that Smith be resentenced. Id.

                              B.

    In 2002 the Arizona legislature responded to the U.S.
Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584
(2002), by shifting from judge to jury the role of finding facts
necessary to impose the death penalty. See 2002 Ariz. Legis.
Serv. 5th Sp. Sess. Ch. 1 § 3 (West); see also State v. Glassel,
116 P.3d 1193, 1202 (Ariz. 2005). This change, coupled with
the time necessary for counsel to gather evidence and prepare,
delayed resentencing until 2004, when the Arizona Superior
Court held separate proceedings to sentence Smith. State v.
Smith, 159 P.3d 531, 536 (Ariz. 2007).

    Like the current framework, Arizona’s capital sentencing
scheme in 2004 began with an “aggravation phase” in which
the jury determined whether the prosecution had proved
beyond a reasonable doubt any alleged statutory aggravating
                           SMITH V. RYAN                                9

circumstances. Ariz. Rev. Stat. § 13-703.01(C), (E) (2003).1
If the jury found at least one of the aggravating
circumstances, the proceeding moved to a “penalty phase” in
which the jury heard mitigating evidence and determined
whether to impose death. See Ariz. Rev. Stat. § 13-
703.01(D), (F)–(G) (2003); see also State v. McGill, 140 P.3d
930, 946 n.9 (Ariz. 2006) (Hurwitz, J., concurring in part and
dissenting in part) (describing Arizona’s capital sentencing
procedure). Although the Superior Court applied the then-
current capital sentencing framework—including broad
mitigation evidence and jury factfinding—the state sought to
prove the statutory aggravators codified in the 1977 scheme.
Smith, 159 P.3d at 536. In two separate proceedings, first for



 1
   When Smith was first sentenced, Arizona’s capital sentencing scheme
was codified in Arizona Revised Statutes section 13-454 (Supp. 1973). In
2004, the procedure for imposing a death sentence was set forth in
Arizona Revised Statutes section 13-703.01 (2003). The current
procedure is codified at Arizona Revised Statutes section 13-752 (2012).
Two changes between the 1977 and 2004 iterations, both referenced
above, are noteworthy. First, unlike the scheme in place when Smith was
indicted, the framework in place when Smith was resentenced in 2004
allowed a defendant to present any relevant mitigation evidence.
Compare Ariz. Rev. Stat. § 13-454(D), (F) (Supp. 1973), with Ariz. Rev.
Stat. § 13-701.01(G) (2003). Second, whereas the 1977 statute committed
factfinding to a judge, the 2004 statute committed it to a jury. Compare
Ariz. Rev. Stat. § 13-454(C)–(D) (Supp. 1973), with Ariz. Rev. Stat. § 13-
703.01(S) (2003).

     In Arizona and elsewhere, a capital sentencing proceeding consists of
an “aggravation phase,” which is sometimes referred to as the “eligibility
phase,” and a “penalty phase,” which is sometimes referred to as the
“selection phase.” See State v. McGill, 140 P.3d 930, 946 n.9 (Ariz. 2006)
(Hurwitz, J., concurring in part and dissenting in part). We use
“aggravation phase” to refer to the first phase of a capital sentencing
proceeding and “penalty phase” to refer to the second.
10                          SMITH V. RYAN

Spencer and second for Lee, the juries unanimously found
three aggravating factors.

    First, the juries found that Smith had been convicted of
another offense exposing him to a life sentence or the death
penalty, Arizona Revised Statutes section 13-454(E)(1)
(1977).2 To establish the (E)(1) aggravator, the prosecution
introduced Smith’s prior 1973 and 1976 convictions for
raping Archibeque and Fortner.

    Second, both juries found that Smith had been previously
convicted of a felony involving “the use or threat of
violence,” Ariz. Rev. Stat. § 13-454(E)(2) (1977). To
establish the (E)(2) aggravator, the prosecution first offered
the Lee murder at the Spencer sentencing and then offered the
Spencer murder at the Lee sentencing.

    Third, the juries found that the Spencer and Lee murders
were especially cruel, heinous, or depraved within the
meaning of Arizona Revised Statutes section 13-454(E)(6)
(1977). To establish the (E)(6) aggravator, the prosecution
elicited testimony regarding the women’s injuries and the
cause of death for each. The prosecution offered evidence
that both women had been asphyxiated by dirt forced into


  2
     In 1977, these three aggravating factors were codified in Arizona
Revised Statutes section 13-454(E). By 2004, the aggravators appeared
at Arizona Revised Statutes section 13-703(F). Currently, the aggravators
are set forth in Arizona Revised Statutes section 13-751(F). The (E)(1)
and (E)(6) aggravators were the same in each version. Between 1977 and
2004, the (E)(2) factor was changed from prior felonies involving the
threat of violence to prior felonies for a “serious offense.” Ariz. Rev. Stat.
§ 13-703(F)(2). For ease of reference and continuity with the relevant
Arizona Supreme Court decision and the district court order, we refer to
the aggravating factors simply as (E)(1), (E)(2), and (E)(6).
                           SMITH V. RYAN                               11

their airways, that before death both had been bound at the
wrists and ankles with ligatures, and that each suffered
puncture and stab wounds. As the Arizona Supreme Court
recounted, Spencer “suffered nineteen stab wounds to the
pubic region and a vaginal tear that was caused by
penetration. She also had three stab wounds to her breasts
and a sewing needle was found embedded in her left breast.”
Lee “also had puncture and stab wounds to her chest,
abdomen, and breasts and damage to her vulva.”

    As mitigation evidence, Smith offered expert testimony
demonstrating mental impairment and psychological
problems, including signs of dissociative identity disorder.3
Smith’s expert also concurred with the prosecution expert’s
diagnosis that Smith suffered from sexual sadism. Smith’s
mother and sister testified to Smith’s personal history and
several prison employees and a prison expert testified to his
good behavior in prison.

    Both juries returned a death verdict and the court entered
a sentence of death by lethal injection.

    On his third direct appeal, Smith raised six primary
arguments. Among those arguments, and relevant to this
federal habeas proceeding, Smith challenged the sufficiency
of the evidence supporting the (E)(2) aggravator, the
prosecution’s use of autopsy-related hearsay evidence at the
Lee sentencing in violation of the Confrontation Clause, U.S.
Const., amend. VI, § 2, and the prosecution’s use of
prejudicial rebuttal evidence. Smith also asserted twelve one-
paragraph claims which he conceded were foreclosed by state

 3
   The parties agree that for the purposes of this appeal, the Spencer and
Lee mitigation evidence was the same.
12                         SMITH V. RYAN

law. Among those truncated claims, Smith asserted that
Arizona’s capital sentence scheme provides no objective
standards to guide the jury in the penalty phase and thus
violates the Eighth and Fourteenth Amendments. The
Arizona Supreme Court rejected each of Smith’s challenges
and affirmed both death sentences. Smith, 159 P.3d 531. The
U.S. Supreme Court denied Smith’s petition for certiorari.
Smith v. Arizona, 552 U.S. 985 (2007); 128 S. Ct. 2997
(mem.).

    Two years later, in November 2009, the Arizona Supreme
Court appointed counsel for Smith’s post-conviction
proceedings. In mid-2011, Smith filed his post-conviction
relief petition in state superior court, referred to in Arizona as
a Rule 32 petition. See Ariz. R. Crim. P. 32.1.4 The post-
conviction court rejected each of Smith’s arguments and
dismissed his Rule 32 petition. In February 2012, the
Arizona Supreme Court denied review without comment.




     4
       Smith raised three issues in his Rule 32 petition. First, the
prosecution’s use of autopsy-related hearsay testimony at both sentencing
proceedings violated Smith’s Sixth Amendment confrontation rights in
light of Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). Second,
the prosecution erroneously and prejudicially suggested that Smith bore
the burden to prove that he should not receive the death penalty. Third,
newly discovered evidence of Smith’s organic brain damage would have
affected the jury’s determination of his sentence. Smith’s appellate
counsel failed to raise the Confrontation Clause claim in the Spencer case
and failed to raise the burden of proof issue in either case. Smith argued
that counsel’s omissions were the result of ineffective assistance of
counsel in violation of the Sixth Amendment.
                       SMITH V. RYAN                         13

                              C.

    In December 2012, Smith timely filed a new § 2254
habeas petition in federal court, in which he raised thirty-nine
claims challenging his death sentences and requested an
evidentiary hearing. Among those claims, Smith raised the
following seven arguments which he has pressed on appeal:

   Claim 13—The admission of autopsy-related hearsay
evidence violated his Sixth Amendment right of
confrontation;

   Claim 15—The use of Smith’s conviction for murdering
Spencer to satisfy the (E)(2) aggravator in the Lee sentencing,
and vice versa, violated his Fifth, Sixth, Eighth, and
Fourteenth Amendment rights;

    Claims 18, 19, and 20—The sentencing judge denied
Smith his Sixth and Fourteenth Amendment rights to
representation and due process when he responded to a jury
question in the Spencer case in the absence of Smith’s
counsel, and counsel’s failure to be available during jury
deliberations and to raise that failure on appeal constituted
ineffective assistance of counsel;

    Claim 23—The prosecution presented irrelevant and
unfairly prejudicial rebuttal evidence in violation of Smith’s
Eighth and Fourteenth Amendment rights to be free from
cruel and unusual punishment and to due process;

    Claim 29—Executing Smith after thirty-five years on
death row would be cruel and unusual punishment in
violation of the Eighth Amendment;
14                    SMITH V. RYAN

    Claim 30—Arizona’s (E)(6) aggravator for especially
heinous, cruel, or depraved murders fails to narrow the class
of death-eligible offenders as required by the Eighth and
Fourteenth Amendments; and

    Claim 39—Smith’s counsel at sentencing rendered
ineffective assistance in derogation of the Sixth Amendment
by failing to develop and present mitigating evidence.

    The district court denied the petition and request for an
evidentiary hearing and it subsequently denied Smith’s
motion to alter or amend the judgment. The district court
concluded that Smith’s claims alleging Sixth Amendment
confrontation and Fourteenth Amendment due process
violations arising from admission of autopsy-related hearsay
evidence and prejudicial rebuttal evidence—Claims 13 and
23—were “adequate to deserve encouragement to proceed
further” or “debatable by reasonable jurists,” and issued a
certificate of appealability (“COA”). See Slack v. McDaniel,
529 U.S. 473, 484 (2000). The district court declined to
extend the COA to any of Smith’s other claims.

    Smith timely appealed. In his opening brief, Smith
addressed the two certified claims and the seven other
uncertified claims described above. We ordered the Attorney
General to respond to Smith’s uncertified claims, and we
deferred ruling on whether to grant a COA on those issues.
See 9th Cir. Rule 22-1(e). We construe Smith’s opening brief
as a motion to expand the COA pursuant to Circuit Rule 22-
1(e), and we grant a COA on three of his uncertified
claims—his challenges to Arizona’s (E)(2) and (E)(6)
                          SMITH V. RYAN                              15

aggravators, Claims 15 and 30, and his claim of ineffective
assistance of counsel, Claim 39.5

                                  II.

    We review de novo the district court’s denial of Smith’s
petition for a writ of habeas corpus and review its factual
findings for clear error. Hurles v. Ryan, 752 F.3d 768, 777
(9th Cir. 2014). Because Smith filed his federal habeas
petition after 1996, AEDPA governs. Id. We may not grant
relief “with respect to any claim that was adjudicated on the
merits in State court proceedings” unless the state court
decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States,” 28 U.S.C.
§ 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding,” id. § 2254(d)(2). Only
Supreme Court holdings clearly establish federal law for the
purposes of § 2254(d)(1), but circuit precedent is persuasive
authority in assessing what law is “clearly established” and
whether the state court applied the law reasonably. Murray
v. Schriro, 745 F.3d 984, 997 (9th Cir. 2014).

    A state court unreasonably applies federal law when it
“correctly identifies the governing legal rule but applies that
rule unreasonably to the facts of a particular prisoner’s case.”
White v. Woodall, —U.S.—, 134 S. Ct. 1697, 1706 (2014).


 5
   We decline to expand the COA to encompass Smith’s claims regarding
jury deliberations and his claim that execution after a thirty-five-year
delay constitutes cruel and unusual punishment, which are identified as
Claims 18, 19, 20, and 29. See Slack v. McDaniel, 529 U.S. 473, 484
(2000).
16                     SMITH V. RYAN

“It is not enough that a federal habeas court, in its
independent review of the legal question, is left with a firm
conviction that the state court was erroneous.” Andrade,
538 U.S. at 75 (internal quotation marks omitted). Rather, the
state court’s application of Supreme Court holdings “must be
‘objectively unreasonable,’ not merely wrong; even ‘clear
error’ will not suffice.” Woodall, —U.S.—, 134 S. Ct. at
1702 (quoting Andrade, 538 U.S. at 75–76). “A state court’s
determination that a claim lacks merit precludes federal
habeas relief so long as ‘fairminded jurists could disagree’ on
the correctness of the state court’s decision.” Harrington v.
Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)).

                             III.

                              A.

    Smith contends in Claim 13 that the state trial court’s
admission of testimonial hearsay during the aggravation
phase of the resentencing proceeding in the Lee case violated
his Sixth Amendment right to confront witnesses. Smith
argues that the sentencing court impermissibly admitted the
out-of-court statements of the medical examiner who
conducted Lee’s autopsy through the testimony of the then-
current chief medical examiner and a detective who was
present at the autopsy. Smith asserts that the Arizona
Supreme Court’s ruling that this testimony did not violate the
Confrontation Clause unreasonably applied clearly
established federal law and unreasonably determined the facts
in light of the record, and that the district court erred in
concluding to the contrary.
                           SMITH V. RYAN                               17

    The U.S. Supreme Court has never established a right to
confront witnesses at sentencing. To the contrary, Smith’s
argument is foreclosed by Williams v. New York, 337 U.S.
241 (1949), “which held that the Confrontation Clause does
not bar courts from considering unconfronted statements
during sentencing proceedings.” Sivak v. Hardison, 658 F.3d
898, 927 (9th Cir. 2011) (rejecting a Confrontation Clause
challenge to the use of hearsay in a capital sentencing
proceeding under pre-AEDPA standards); see also United
States v. Littlesun, 444 F.3d 1196, 1197 (9th Cir. 2006);
United States v. Petty, 982 F.2d 1365 (9th Cir.), amended by
992 F.2d 1015 (9th Cir. 1993). We therefore conclude that
the Arizona Supreme Court did not act unreasonably in
rejecting Smith’s Sixth Amendment confrontation claim.6

                                    B.

    In Claim 23, Smith argues that the district court erred in
finding that Smith suffered no constitutional violation when
the prosecution introduced substantial evidence of Smith’s
prior crimes during both the Lee and Spencer penalty-phase
hearings. Smith contends that the admission of that evidence


  6
    Smith also asserts that the Arizona Supreme Court’s confrontation
analysis “resulted in a decision that was based on an unreasonable
determination of the facts.” 28 U.S.C. § 2254(d)(2). This argument need
not detain us, however, because even if we found § 2254(d)(2) satisfied,
Williams, 337 U.S. 241, and Sivak, 658 F.3d at 927, foreclose Smith’s
Confrontation Clause challenge. Cf. Frantz v. Hazey, 533 F.3d 724, 735
(9th Cir. 2008) (en banc) (“[W]e may not grant habeas relief simply
because of § 2254(d)(1) error and . . . if there is such error, we must
decide the habeas petition by considering de novo the constitutional issues
raised.”); see also Taylor v. Maddox, 366 F.3d 992, 1008–16 (9th Cir.
2004) (holding that state courts made unreasonable factual determination
and then proceeding to evaluate constitutional claim).
18                          SMITH V. RYAN

was unconstitutional under the Due Process Clause of the
Fourteenth Amendment, the Eighth Amendment, and the Ex
Post Facto Clause, U.S. Const., art. 1, § 9, cl. 3.

                                    1.

    During both penalty phases of the Spencer and Lee
resentencing proceedings, Smith offered mitigation evidence
related to his mental health, his family background and
relationships, and his good behavior in prison. Particularly
relevant to this habeas claim, Smith’s mental health expert,
Dr. Parrish, agreed with the prosecution’s mental health
expert, Dr. Moran, that Smith suffered from “sexual sadism.”
During the Lee proceeding, Dr. Parrish explained the
meaning of sexual sadism to the jury.7 When questioned by
defense counsel, Dr. Parrish identified Smith as a sexual
sadist and agreed that sexual sadism could have caused Smith
to lose control during the commission of his crimes. Dr.
Parrish’s testimony at the Spencer proceedings was very
similar. Smith’s counsel previewed the sexual sadism
diagnosis in his opening statement during the Spencer penalty
phase, although the focus was on Smith’s asthma and anxiety
diagnoses.

    During rebuttal at both the Lee and Spencer proceedings,
the prosecution called a number of witnesses to testify about
the facts of Smith’s two prior convictions and the facts of the

  7
    Dr. Parrish explained that the “essential features of a paraphilia,” the
type of mental disorder encompassing sexual sadism, are “recurrent,
intense, sexually arousing fantasies, sexual urges or behaviors, generally
involving nonhuman objects: No. 1, nonhuman objects. No. 2, the
suffering or humiliation of one’s self or one’s partner. No. 3, children or
other nonconsenting persons that occur over a period of at least six
months.”
                      SMITH V. RYAN                        19

Lee and Spencer murders. The quantity and intensity of
evidence was extensive and powerful.

     During the Spencer penalty phase, the prosecution
questioned at length five witnesses about the details of
Smith’s crimes. Dr. Moran described how the escalation of
violence in Smith’s crimes—from the Archibeque rape to the
two murders—was typical for individuals with sexual sadism
diagnoses. Dr. Moran related how, while raping Archibeque,
Smith “us[ed] handcuffs,” “state[d] it would be necessary to
kill the victim,” “related numerous things to the victim about
bodies being found in the desert,” and more. Dr. Moran
opined that Smith’s acts became more “degrading” during the
later Fortner rape, when Smith “obtained a Pepsi bottle from
somewhere within the car, placed it in her vagina, forced her
to commit an act of fellatio, [and] also committed sodomy
upon her.” Finally, Dr. Moran explained that the “amount of
violence was increasing” during the Lee and Spencer
murders, as evidenced by “sewing needles that were
embedded in [Spencer’s] breast,” the “cutting of [Lee’s]
vagina,” and the murder victims’ death by strangulation—“by
forcing dirt down their throat [and] covering their mouth with
duct tape.” Dr. Moran then repeated the facts of the four
crimes a second time in response to further questioning by the
prosecution.

    The prosecution also called two law enforcement officers.
First, the prosecution called Detective Charles Adams, who
had investigated the Archibeque case. At the prosecution’s
prompting, Adams “basically summarize[d his] report” for
the jury. Adams explained how Smith offered Archibeque a
ride, took her to his home, and raped her in the presence of
his wife using handcuffs. Smith then drove both women to
the desert, saying it “would be necessary to kill
20                    SMITH V. RYAN

[Archibeque],” raped her again outside the car while his wife
waited, and ultimately released Archibeque on the promise
that she would bring him $200 the next day. The prosecution
then called Detective Dominguez, who described the
elaborate story Smith told to police to explain his
involvement in the Lee and Spencer murders. Dominguez
also described arriving at the scene where Lee’s body was
found. Lee was “completely nude” with “visible trauma on
the body,” including “ligature markings around the ankles
and wrists” and “trauma into the chest area.” Dominguez
also testified about attending Lee’s autopsy. He recounted
the medical examiner pointing out “stab wounds to the
vaginal area,” a “puncture wound of the right breast by the
nipple area,” “five stab wounds to the chest area,” and that
her “deep throat area, was full of dirt.”

    The prosecution also elicited the facts of Smith’s prior
crimes during its cross examination of James Aiken, a
corrections expert. Aiken had testified on direct examination
that a “toothbrush with [a] razor blade attached” found in
Smith’s prison locker was likely a “defensive weapon.”
Smith had called Aiken to testify generally about Smith’s
good conduct in prison. Ignoring the scope of Aiken’s direct
examination testimony, the prosecution related, one by one,
the facts of the Archibeque, Fortner, Spencer, and Lee crimes,
and after each description, asked whether Aiken still believed
the toothbrush was a defensive weapon.

    Dorothy Fortner, the victim in Smith’s second rape
conviction, provided the most damaging evidence against
Smith’s mitigation case. Fortner recounted how Smith
convinced her to accept a ride by claiming he was friends
with her boyfriend and then took her to an “unpaved portion
of the desert.” Fortner, who was four or five months pregnant
                       SMITH V. RYAN                        21

at the time, described how she “asked him a hundred times to
let [her] go.” Instead, Smith ran a knife “up and down [her]
torso” and asked her if she “would like to be killed fast or
slow.” Fortner testified that Smith raped her “repeatedly”
inside and outside the car, at one point using “a Coke bottle
or Pepsi bottle.” Smith “tried to strangle” her and made her
urinate in front of his car while he watched. Fortner ended
her testimony by relating how Smith said “he was going to
cut [her] open with his knife and take [her] infant out and lay
her on the desert floor and let her die, and let [Fortner] die
next to her on the desert floor, and that he was going to watch
this.”

    The jury faced a similar wave of witnesses during the Lee
penalty-phase proceedings. Dr. Moran described how
Smith’s crimes fit the description of sexual sadism and
Detective Adams gave a similar description of the
Archibeque crime. In place of Detective Dominguez’s
testimony about Lee’s murder, Detective Jessie Locksa
testified about the similarly gruesome details of Spencer’s
murder. Unlike the Spencer proceeding, however, Fortner
did not testify.

                              2.

                              a.

   Smith first argues that the prosecution’s introduction of
“extensive, inflammatory evidence” violated his Fourteenth
Amendment due process right to fundamental fairness
because it was “tantamount to the prosecution offering
nonstatutory aggravating circumstances.” The Arizona
Supreme Court rejected this argument on direct appeal.
Smith, 159 P.3d at 543. The state supreme court concluded
22                         SMITH V. RYAN

that the prosecution’s rebuttal evidence was “relevant to the
diagnosis of sexual sadism,” and that it did not “render[] his
sentencing proceedings fundamentally unfair.” Id. at 542–43.
Smith did not raise this due process claim during his state
post-conviction proceedings, but he renewed it in his federal
habeas petition. The district court ruled that the Arizona
Supreme Court’s “decision was neither contrary to nor an
unreasonable application of clearly established federal law.”

                                    b.

     Under the state’s death penalty scheme, the Arizona
Supreme Court had little difficulty concluding that the
prosecution’s rebuttal evidence was relevant to Smith’s
mitigation case because the evidence “assisted the jury in its
evaluation of” the expert testimony regarding Smith’s mental
health at the time of the murders. Id. at 542.8 Arizona
Revised Statutes section 13-703.01(G) provides that both the
prosecution and the defense “may present any evidence that
is relevant to the determination of whether there is mitigation
that is sufficiently substantial to call for leniency.” Once
Smith introduced evidence of his sexual sadism diagnosis in
support of his mitigation case, the prosecution was entitled to
present evidence related to that diagnosis.

    As the Arizona Supreme Court noted, both parties’ mental
health experts “relied on the underlying facts of” Smith’s
prior crimes to make their diagnoses. Id. Thus, the


 8
   Normally, “violations of state law are not cognizable on federal habeas
review.” Rhoades v. Henry, 611 F.3d 1133, 1142 (9th Cir. 2010). When
the state law error rises to the level of a due process violation, however,
federal habeas review is available. Lewis v. Jeffers, 497 U.S. 764, 781
(1990).
                       SMITH V. RYAN                          23

prosecution was entitled to present those underlying facts to
the jury, so jurors could assess Smith’s diagnosis and its
mitigating impact, if any. Smith also argued that his sexual
sadism was at least partially responsible for his inability to
control his actions. Again, that assertion opened the door for
the prosecution to rebut Smith’s claim by offering the facts of
Smith’s crimes as evidence that he acted deliberately or
purposefully. The state court’s relevancy finding is a
question of state law, which we must accept unless rebutted
by clear and convincing evidence. See 28 U.S.C.A.
§ 2254(e)(1); see also Miller-El v. Cockrell, 537 U.S. 322,
330 (2003). Smith has failed to meet that high burden here.

    Even if evidence is relevant, however, it may still violate
the Due Process Clause if it is “so unduly prejudicial that it
renders the trial fundamentally unfair.” Payne v. Tennessee,
501 U.S. 808, 825 (1991); see also Lisenba v. California,
314 U.S. 219, 236 (1941) (holding that in “a criminal trial,
denial of due process” occurs when the “absence of
[fundamental] fairness fatally infected the trial”). Here, the
Arizona Supreme Court’s conclusion that the prosecution’s
rebuttal evidence did not render Smith’s sentencings
fundamentally unfair was not an “unreasonable application
of[] clearly established Federal law.” 28 U.S.C. § 2254(d)(1).

     In Dawson v. Delaware, the U.S. Supreme Court held that
“just as the defendant has the right to introduce any sort of
relevant mitigating evidence, the State is entitled to rebut that
evidence with proof of its own.” 503 U.S. 159, 167 (1992).
The Court endorsed the “principle of broad rebuttal asserted
by Delaware,” although it ultimately rejected the State’s
rebuttal evidence on First Amendment grounds. Id. at 168.
In light of the U.S. Supreme Court’s instruction that both the
defense and prosecution should be given wide latitude when
24                          SMITH V. RYAN

introducing evidence in the penalty phase, it was reasonable
for the Arizona Supreme Court to conclude that the
prosecution’s rebuttal evidence, while powerful, did not
render Smith’s sentencing proceedings fundamentally unfair.

    The fact that the trial court imposed some limits on the
prosecution’s rebuttal evidence bolsters the reasonableness of
the Arizona Supreme Court’s conclusion. In response to the
defense’s argument in both proceedings that allowing
evidence about all of Smith’s eleven other adjudicated and
unadjudicated crimes would be overbroad, the trial court
limited the scope of the prosecution’s evidence to crimes for
which Smith had been either charged or convicted.9

     Further, to the extent that Smith’s ultimate due process
concern is that the jury considered the prosecution’s rebuttal
evidence as evidence of non-statutory aggravators, both the
trial court and the prosecution were careful to clarify that the
rebuttal evidence could not be used for that purpose. The
judge instructed the jury as follows:

         Pursuant to law, the State has presented
         evidence to rebut the defendant’s mitigation
         evidence. This evidence is not a new
         aggravating circumstance. It is presented
         solely to give you a more complete picture of
         the defendant’s character, propensities or
         record, and to aid you in properly weighing
         whether the mitigation is sufficiently


 9
   Smith states that the trial court’s limiting order only applied to the Lee
proceeding. Nonetheless, it appears that during the Spencer proceeding,
the prosecution also limited the rebuttal evidence to those crimes for
which Smith had been charged or convicted.
                       SMITH V. RYAN                         25

       substantial to call for leniency and the
       imposition of a life sentence.

The prosecution made similar remarks to the jury in both
cases. The trial court’s emphasis on the limited, permissible
role of the rebuttal evidence weighs against a finding that the
sentencing hearings were rendered fundamentally unfair. See
Romano v. Oklahoma, 512 U.S. 1, 12 (1994) (holding that a
limiting instruction by the trial court precluded a finding that
improperly admitted evidence “so infected the sentencing
proceeding with unfairness as to render the jury’s imposition
of the death penalty a denial of due process”).

    There is little doubt that the prosecution’s powerful
rebuttal evidence was prejudicial to Smith. Witness after
witness testified in detail about the psychological and
physical violence that Smith inflicted on his victims, painting
a picture of exceptional violence. Nonetheless, in light of
Smith’s reliance, minimal as it may have been, on his sexual
sadism diagnosis and the U.S. Supreme Court’s
pronouncement that the prosecution enjoys wide latitude in
admitting rebuttal evidence, it was reasonable for the Arizona
Supreme Court to conclude that the evidence fell within the
boundaries of due process.

                              3.

                              a.

    Smith also contends that the introduction of the
prosecution’s rebuttal evidence violated the Eighth
Amendment. The Arizona Supreme Court summarily
rejected that claim, citing its decision in State v. Hampton,
140 P.3d 950 (2006). Smith, 159 P.3d at 542 n.11. Although
26                     SMITH V. RYAN

Hampton is a state court decision, it cites U.S. Supreme Court
precedent for the proposition that the “Eighth Amendment
does not . . . limit the State to urging statutory aggravating
factors at the penalty stage.” Hampton, 140 P.3d at 961 n.10.
Smith did not assert this claim during his state post-
conviction proceedings, but he renewed it in his federal
habeas petition. The district court did not conduct a separate
analysis of Smith’s Eighth Amendment claim. Referring to
Smith’s due process and Eighth Amendment claims together,
the district court ruled that the Arizona Supreme Court’s
“decision was neither contrary to nor an unreasonable
application of clearly established federal law.”

                              b.

    The district court correctly rejected Smith’s Eighth
Amendment claim. The U.S. Supreme Court has held that
“statutory aggravating circumstances play a constitutionally
necessary function at the stage of legislative definition: they
circumscribe the class of persons eligible for the death
penalty.” Zant v. Stephens, 462 U.S. 862, 878 (1983). The
Court proceeded to conclude, however, that “the Constitution
does not require the jury to ignore other possible aggravating
factors in the process of selecting, from among that class,
those defendants who will actually be sentenced to death.”
Id. That same year, relying on Zant, the U.S. Supreme Court
held that “nothing in the Eighth Amendment . . . prohibits the
admission of [the defendant’s] criminal record” even where
the trial judge’s consideration of the “criminal record as an
aggravating circumstance was improper as a matter of state
law.” Barclay v. Florida, 463 U.S. 939, 956 (1983).

   Barclay and Zant support the Arizona Supreme Court’s
decision to reject Smith’s Eighth Amendment claim. In this
                        SMITH V. RYAN                         27

case, the prosecution introduced evidence to rebut Smith’s
contention that his mental health, including his sexual sadism
diagnosis, constituted a mitigating circumstance. Although
the evidence of Smith’s prior crimes would have been
improper non-statutory aggravating evidence during the
aggravation phase of the sentencing proceedings, under
Barclay, the Eighth Amendment did not prohibit its
introduction during the penalty phase. Therefore, the Arizona
Supreme Court’s determination was not an unreasonable
application of clearly established federal law.

                               4.

                               a.

    Finally, Smith claims that admission of the prosecution’s
rebuttal evidence violated his rights under the Ex Post Facto
Clause. Smith argues that the Arizona sentencing law in
place at the time he committed the Lee and Spencer murders
limited evidence during the penalty phase to “1) evidence that
is mitigating, and 2) evidence that rebuts mitigation.” He
contends that the trial court violated the Ex Post Facto Clause
by applying the capital sentencing statute in place in 2004,
Ariz. Rev. State. § 13-703.01, when Smith was resentenced,
and interpreting it to allow the introduction of a greater range
of evidence. In a minute order rejecting Smith’s Ex Post
Facto argument, the trial court determined that “it always has
been and remains the law that both the defendant and state
may present all relevant evidence, whether directly or on
rebuttal, to aid the jury in determining whether there is
mitigation sufficiently substantial to call for leniency.”

    Smith did not raise an Ex Post Facto Clause claim on
direct appeal or in his state post-conviction relief petition. In
28                     SMITH V. RYAN

fact, the district court is the only post-conviction court to
address this claim. In rejecting that claim, the district court
concluded that any change to Arizona’s sentencing scheme
was procedural rather than substantive, and therefore did not
implicate the Ex Post Facto Clause. Smith’s ex post facto
claim is procedurally defaulted, but because the State waived
this affirmative defense, we address it on the merits. See
McDaniels v. Kirkland, 813 F.3d 770, 775 n.3 (9th Cir. 2015)
(reaching merits of claim where state waived the defense of
procedural default).

                              b.

    As an initial matter, it is questionable whether Arizona’s
2003 sentencing statute represented a change in the law when
compared to the 1970’s sentencing statute. Arizona Revised
Statutes section 13-454(B) (1977), which was in effect when
Smith committed the Lee and Spencer murders, provided that
during sentencing, “[t]he prosecution and the defendant shall
be permitted to rebut any information received at the
[sentencing] hearing.” The sentencing statute in effect in
2004 stated:

       At the penalty phase, the defendant and the
       state may present any evidence that is relevant
       to the determination of whether there is
       mitigation that is sufficiently substantial to
       call for leniency. In order for the trier of fact
       to make this determination, the state may
       present any evidence that demonstrates that
       the defendant should not be shown leniency.

Ariz. Rev. Stat. § 13-703.01 (2003). Both versions of
Arizona’s statute use broad language to describe admissible
                        SMITH V. RYAN                          29

rebuttal evidence: one permits “any information” and the
other “any evidence.” While one could interpret the later
statute to permit the introduction of a wider scope of rebuttal
evidence, it is also fair to read it as largely restating the same
objectives of the earlier statute. Thus, the state trial court
reasonably concluded that the “new death penalty sentencing
scheme merely clarifies and does not change the standard for
admitting rebuttal evidence,” and the district court agreed
with that conclusion.

   Even if Smith is correct that the later version of the statute
broadens the range of admissible rebuttal evidence, the trial
and district courts concluded that any change to that law was
“procedural.” Legal changes must be substantive, rather than
procedural, to give rise to an Ex Post Facto Clause violation.
Dobbert v. Florida, 432 U.S. 282, 293 (1977).

    U.S. Supreme Court precedent forecloses Smith’s
argument that any alleged change in the 2003 statute was
substantive. In Carmell v. Texas, the Supreme Court
distinguished between rule changes affecting the
“admissibility of evidence” and rules affecting “whether the
properly admitted evidence is sufficient to convict the
defendant.” 529 U.S. 513, 546 (2000). In Carmell, the
defendant challenged a statutory change that eliminated the
requirement of corroborating evidence in certain rape cases,
allowing a conviction to be obtained on the basis of the
victim’s testimony alone. Id. at 544–45. That change in law
violated the Ex Post Facto Clause because it did “not merely
regulate the mode in which the facts constituting guilt may be
placed before the jury, . . . but govern[ed] the sufficiency of
those facts for meeting the burden of proof.” Id. at 545
(internal alterations and quotation marks omitted). The
Supreme Court contrasted the change regarding corroboration
30                         SMITH V. RYAN

evidence with changes related to rules governing witness
competency or “what kind of evidence may be introduced at
trial.” Id. at 545, 550.

     As the district court properly concluded, in the context of
Smith’s case, any change to Arizona’s capital sentencing
statute falls squarely in the “admissibility of evidence”
category and constitutes a procedural change in law. Whether
the prosecution may present more or different rebuttal
evidence under the statute in place in 2004 does not change
the fact that Smith had already been found death-eligible.
Smith challenges only the evidence ruled admissible by the
trial court in the penalty phases of the Spencer and Lee
sentencing proceedings, not evidence admitted at the
aggravation phases nor at the guilt phase of his trial in the Lee
case. Given this procedural context, Smith cannot argue that
the changes to the capital sentencing statute’s text resulted in
a substantive change triggering Ex Post Facto Clause
concerns because the rebuttal evidence was not used to
“convict” him. Carmell, 529 U.S. at 546. Carmell instructs
that “[t]he issue of the admissibility of evidence is simply
different from the question whether the properly admitted
evidence is sufficient to convict the defendant.” Id.10 Thus,


  10
     Although it does not qualify as clearly established law for AEDPA
purposes, the Arizona Supreme Court addressed a very similar Ex Post
Facto Clause challenge to the 2003 Arizona death sentencing scheme as
a whole and reached the same conclusion as the district court and superior
court here. In State v. Ring, the Arizona Supreme Court held generally
that the “framework of a state’s statutory capital sentencing scheme is
procedural in nature” and specifically held that the changes the Arizona
legislature made to the “capital sentencing procedures do not resemble the
type of after-the-fact legislative evil contemplated by contemporary
understandings of the ex post facto doctrine.” 65 P.3d 915, 928 (Ariz.
2003).
                           SMITH V. RYAN                               31

the state trial court’s rejection of Smith’s Ex Post Facto
argument was not contrary to nor an unreasonable application
of Carmell. 28 U.S.C.A. § 2254(d)(1).

   In sum, none of Smith’s three arguments related to the
prosecution’s rebuttal evidence warrant habeas relief.

                                    C.

    Smith next contends (in Claim 15) that the application of
the (E)(2) aggravator to his case violated the Eighth and
Fourteenth Amendments, because it is impermissibly vague
as interpreted by the Arizona Supreme Court.11 Under the
state criminal code in effect at the time of the 2004
resentencing proceedings, the (E)(2) aggravator applied when
the “defendant was previously convicted of a felony in the
United States involving the use or threat of violence on
another person.”12 The prosecution used the Lee murder as an
aggravating factor during the Spencer sentencing and vice
versa.



  11
     The state is mistaken when it suggests that Smith “abandoned” his
vagueness challenge by failing to raise it in his habeas petition. Smith
alleged in Claim 15 that the application of (E)(2) to his case violated,
among other things, the Eighth and Fourteenth Amendments. He also
argued in the district court that the Arizona Supreme Court’s definition of
murder as necessarily involving violence “failed to appropriately narrow
the aggravating circumstance.” Smith did not abandon this claim.
  12
      The Arizona Legislature subsequently amended Arizona Revised
Statutes section 13-703(F)(2) (formerly Ariz. Rev. Stat. § 13-454(E)(2)),
to require that a prior conviction be for a “serious offense.” First-degree
murder is expressly identified as such an offense. See Ariz. Rev. Stat.
§ 13-703(I)(1).
32                          SMITH V. RYAN

                                    1.

     On direct appeal, Smith argued that the trial court erred in
denying a judgment of acquittal with respect to the (E)(2)
aggravator because Arizona’s first-degree murder statute,
Ariz. Rev. Stat. § 13-452 (Supp. 1957–1978) does not
necessarily require the use or threat of force. The Arizona
Supreme Court rejected that argument, and held that under
the text of section 13-452,13 first-degree murder could not be
committed without the use of force. Smith, 159 P.3d at 537.
The state supreme court separately held that Arizona had not
violated Smith’s Eighth and Fourteenth Amendment rights by
failing to “sufficiently narrow” the application of (E)(2). Id.
at 546. Smith did not challenge the (E)(2) aggravator in state
post-conviction proceedings, but he renewed that claim in his
federal habeas petition. The district court denied the claim,
finding that the Arizona Supreme Court’s interpretation of
Arizona’s murder statute was not arbitrary and capricious.
Before this court, Smith argues that “by failing to sufficiently
narrow the (E)(2) aggravating circumstance, the [Arizona]
supreme court rendered it unconstitutionally vague” and that
in doing so it unreasonably applied clearly established
Supreme Court law.

                                    2.

    The U.S. Supreme Court has long held that states must
carefully define their death aggravators to avoid violating the
Eighth and Fourteenth Amendments; undefined aggravators
are subject to vagueness challenges. Lewis v. Jeffers,


 13
   Section 13-452 defined first-degree murder as “murder . . . perpetrated
by means of poison or lying in wait, torture or by any other kind of wilful,
deliberate or premeditated killing.” See Smith, 159 P.3d at 537.
                       SMITH V. RYAN                         33

497 U.S. 764, 774 (1990); Godfrey v. Georgia, 446 U.S. 420,
427–28 (1980). Those challenges “characteristically assert
that the . . . challenged provision fails adequately to inform
juries what they must find to impose the death penalty and as
a result leaves them and appellate courts with the kind of
open-ended discretion which was held invalid in Furman v.
Georgia.” Maynard v. Cartwright, 486 U.S. 356, 361–62
(1988). Thus, a “narrowing construction” is required to
“channel the sentencer’s discretion by clear and objective
standards.” Jeffers, 497 U.S. at 774 (quotation marks
omitted). Without narrowly defined aggravators, the
sentencer cannot make “a principled distinction between
those who deserve the death penalty and those who do not.”
Id. at 776.

    The Arizona Supreme Court has provided a narrowing
construction for the (E)(2) aggravator. It has instructed, “[i]n
order to constitute an aggravating circumstance under
[(E)(2)], the prior conviction must be for a felony which by its
statutory definition involves violence or the threat of violence
on another person.” State v. Gillies, 662 P.2d 1007, 1018
(Ariz. 1983) (emphasis added); see also State v. Fierro,
804 P.2d 72, 82 (Ariz. 1990). In other words, the specific
facts of the defendant’s crime are irrelevant for triggering the
(E)(2) aggravator. Gillies, 662 P.2d at 1018. In Gilles, the
Arizona Supreme Court explained that its construction of the
(E)(2) aggravator “guarantees due process to a criminal
defendant.” Id. It remarked that “[e]vidence of a prior
conviction is reliable, the defendant having had his trial and
exercised his full panoply of rights which accompany his
conviction.” Id. Thus, focusing on the definition of the crime
of conviction and the conviction itself prevents “a second trial
on [the] defendant’s prior conviction to establish” the (E)(2)
aggravating circumstance. Id.
34                        SMITH V. RYAN

    In addition to focusing on “the statutory definition of the
prior crime, and not its specific factual basis,” the Arizona
Supreme Court has further narrowed the (E)(2) aggravator by
defining “violence” as the “exertion of any physical force so
as to injure or abuse.” State v. Henry, 863 P.2d 861, 879
(Ariz. 1993) (quoting State v. Arnett, 579 P.2d 542, 555
(Ariz. 1978)). The state supreme court additionally explained
that the physical force exerted must be “employed or
threatened with the intent to injure or abuse” for the (E)(2)
aggravator to apply. Fierro, 804 P.2d at 82.

    Through this case law, Arizona has offered a narrowed
construction of the (E)(2) aggravator. The U.S. Supreme
Court, however, has yet to analyze any “prior crime of
violence” aggravator. This means there is no clearly
established federal law explaining how a state must narrow an
aggravator like (E)(2) in order to sufficiently “channel the
sentencer’s discretion by clear and objective standards.”
Jeffers, 497 U.S. at 774. Without any guidance from the
Supreme Court, we cannot say that Arizona’s construction of
(E)(2) is unreasonable.

    Even when a state properly adopts a narrowing
construction of an aggravator, a defendant may still have a
colorable vagueness claim if the state court fails to actually
apply the narrowing construction. For example, in Godfrey
v. Georgia, the Supreme Court held that, although the
Georgia high court had properly created three factors to
consider when applying its “(b)(7)” aggravator,14 the state


     14
         Georgia’s (b)(7) aggravator applied when an offense was
“outrageously or wantonly vile, horrible or inhuman in that it involved
torture, depravity of mind, or an aggravated battery to the victim.” Ga.
Code § 27-2534.1(b)(7) (1978).
                             SMITH V. RYAN                           35

supreme court had failed to assess those factors in Godfrey’s
case. 446 U.S. at 431–32. Thus, it is not enough to adopt a
narrowing construction; a state court also must use that
narrowed definition, or it risks violating the Eighth and
Fourteenth Amendments.

    Here, any (E)(2) vagueness challenge fails because both
the trial court and Arizona Supreme Court applied the
narrowed definition of the (E)(2) aggravator to Smith’s case.
After the close of evidence during the aggravation phase in
the Spencer proceeding but before the jury commenced
deliberations, the trial court rejected Smith’s motion for
acquittal on the (E)(2) aggravator, noting that by providing
the jury with the definition of first-degree murder and the
guilty verdict in the Lee case, the court had “sufficiently
narrow[ed]” the jury’s discretion.15 It is clear that the trial
court properly instructed the jury using the narrowed
definition of the (E)(2) aggravator. Similarly, the Arizona
Supreme Court held that a “prior felony conviction qualifie[s]
as an aggravator under [(E)(2)] only if the elements of the
offense—without regard to the underlying facts of the

 15
      The trial court instructed the jury as follows:

           First, you must decide whether the defendant has been
           convicted of the first-degree murder of Neva Lee.
           Second, you must decide whether that first-degree
           murder conviction was a felony that necessarily
           involved the use or threat of violence on another
           person.

The jury returned a verdict of “proven.” The trial court gave a similar
instruction in the Lee sentencing proceeding, except that “Neva Lee” was
changed to “Sandy Spencer” and a sentencing order was provided to the
jury to show Smith’s conviction for killing Spencer, rather than a guilty
verdict.
36                     SMITH V. RYAN

crime—required the use or threat of violence on another
person.” Smith, 159 P.3d at 537. In evaluating Smith’s case,
the Arizona Supreme Court described the (E)(2) inquiry as
“whether first-degree murder necessarily require[s] the use or
threat of violence.” Id. That the Arizona courts recognized
and applied the narrowed definition of (E)(2) forecloses
Smith’s constitutional vagueness claim.

    Nor did Arizona Supreme Court act contrary to clearly
established federal law in its application of the narrowed
(E)(2) aggravator to the facts of Smith’s case. See Jeffers,
497 U.S. at 780 (explaining that even if a court utilizes a
constitutionally narrowed aggravator, it may still violate the
Eighth and Fourteenth Amendments if it “misapplie[s] its
own aggravating circumstance to the facts of [the] case”). At
the close of the aggravation phase in both cases, the jury was
instructed on Arizona’s statutory definition of first-degree
murder and provided with a copy of the Lee and Spencer
indictments, the Lee guilty verdict (for the Spencer jury), and
the Spencer sentencing order (for the Lee jury). The judge
instructed the jury in each case to ignore the “specific facts”
of Smith’s offenses and examine only the statute and verdicts.
Using those sources, the jury considered whether Smith had
been convicted of a crime that necessarily involved violence
and concluded that he had. On direct review, the Arizona
Supreme Court agreed that first-degree murder is a crime that
necessarily involves violence, concluding that the jury’s
determination was correct as a matter of law. Smith, 159 P.3d
at 537.

   The standard under which a habeas court reviews an as-
applied challenge is very deferential. In Jeffers, the U.S.
Supreme Court held that “federal habeas review of a state
court’s application of a constitutionally narrowed aggravating
                       SMITH V. RYAN                         37

circumstance is limited, at most, to determining whether the
state court’s finding was so arbitrary or capricious as to
constitute an independent due process or Eighth Amendment
violation.” 497 U.S. at 780. The Supreme Court further held
that the appropriate standard of review for a vagueness
inquiry is the “rational factfinder” standard, which asks
whether “after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact” could
have found the aggravating circumstance. Id. at 781.

    The Arizona Supreme Court’s determination that applying
the (E)(2) aggravator to Smith’s case was not arbitrary or
capricious was not an unreasonable application of Jeffers.
Citing a case from the U.S. Court of Appeals for the Second
Circuit, the Arizona Supreme Court held that “even
surreptitious poisoning involves the use of force” because a
defendant “who uses poison to kill another person
‘intentionally avails herself of the physical force exerted by
poison on a human body.’” Smith, 159 P.3d at 537 (quoting
Vargas-Sarmiento v. U.S. Dep’t of Justice, 448 F.3d 159,
174–75 (2d. Cir. 2006)). In a footnote, the state supreme
court also remarked that it previously upheld the use of first-
degree murder as an (E)(2) aggravator in a capital case. Id.
at 537 n.5; see State v. Gretzler, 659 P.2d 1, 16 (Ariz. 1983)
(holding that the “trial court correctly found” the (E)(2)
aggravator “based on the defendant’s nine prior convictions
for first degree murder”). In light of the state supreme court’s
reliance on this precedent, its decision cannot be described as
arbitrary and capricious.

    Nor does the Arizona Supreme Court’s decision to allow
any first-degree murder to serve as an (E)(2) aggravator lead
to “standardless sentencing discretion” in contravention of
clearly established Supreme Court law as Smith claims. It is
38                     SMITH V. RYAN

true that the U.S. Supreme Court has required constitutionally
narrowed aggravators so that “capital punishment [cannot] be
imposed in any murder case.” Godfrey, 446 U.S. at 422–23.
For example, in Godfrey a plurality of the Court rejected
Georgia’s “wantonly vile” aggravator, because a “person of
ordinary sensibility could fairly characterize almost every
murder as ‘outrageously or wantonly vile, horrible and
inhuman.’” Id. at 428–29. But (E)(2) is different because,
unlike the aggravator in Godfrey, it looks not to the crime for
which the defendant is being sentenced but to his past
offenses. There is nothing to suggest that the Supreme
Court’s warning not to make every murder eligible for the
death penalty would extend to every murderer who has
already committed murder in the past.

    Because the application of the (E)(2) aggravator was in no
way contrary to or an unreasonable application of clearly
established federal law, we affirm the district court’s denial
of Smith’s challenge to the (E)(2) aggravator.

                              D.

    In Claim 30, Smith similarly argues that the (E)(6)
aggravator for offenses committed in an especially heinous,
cruel, or depraved manner violates the Eighth Amendment,
and that the Arizona Supreme Court’s rejection of this
argument was an unreasonable application of clearly
established federal law.

                              1.

   Prior to the resentencing proceedings, Smith moved to
dismiss the (E)(6) aggravator as unconstitutionally vague.
Smith argued that the (E)(6) aggravator “provides no
                           SMITH V. RYAN                             39

meaningful guidance for identifying the most blameworthy
killings, and offers no protection from an arbitrary and
capricious application of the death penalty.” The trial court
denied Smith’s motion. The court briefly discussed the U.S.
Supreme Court’s decision in Maynard v. Cartwright,
486 U.S. 356 (1988), and cited to three U.S. Supreme Court
decisions upholding Arizona’s (E)(6) aggravator: Walton v.
Arizona, 497 U.S. 639 (1990), overruled on other grounds by
Ring v. Arizona, 536 U.S. 584 (2002); Lewis v. Jeffers,
497 U.S. 764 (1990); and Richmond v. Lewis, 506 U.S. 40
(1992). The trial court concluded that “by giving detailed and
clear jury instructions concerning the definition and
application of the ([E])(6) aggravating factors, the jury will
be carefully focused and limited in its fact finding and
deliberative duties as to each factor so as to prevent any
arbitrary and capricious aggravation and sentencing findings
and decisions from being made.”

    At the Spencer and Lee resentencings, the court instructed
the juries on the (E)(6) aggravator, and both juries found that
each of the three factors supporting the (E)(6) aggravator had
been proven beyond a reasonable doubt.16

  16
     At the Spencer resentencing, the trial judge instructed the jury as
follows:

             Next aggravating circumstance alleged is the
         especially cruel, heinous or depraved.

              Concerning this aggravating circumstance, all first
         degree murders are to some extent heinous, cruel or
         depraved. However, this aggravating circumstance
         cannot be found to exist unless the murder is especially
         heinous, cruel or depraved, that is, where the
         circumstances of the murder raise it above the norm of
         other first degree murders.
40                     SMITH V. RYAN



         The terms “cruel, heinous,” or “depraved” are to be
     considered in the disjunctive; therefore, proof of any
     one of these factors is sufficient to establish this
     aggravating circumstance.

          Cruelty involves the infliction of physical pain
     and/or mental anguish on the victim before death. A
     crime is committed in an especially cruel manner when
     a defendant either knew or should have known that the
     manner in which the crime was committed would cause
     the victim to experience physical pain and/or mental
     anguish before death. The victim must be conscious for
     at least some portion of the time when pain and/or
     anguish was inflicted.

         Terms heinous or depraved, the term “heinous” and
     “depraved” focus on a defendant’s state of mind at the
     time of the offense, as reflected by his words and acts.

         A murder is especially heinous if it is hatefully or
     shockingly evil; grossly bad. A murder is especially
     depraved if it is marked by debasement, corruption,
     perversion or deterioration.        In order to find
     heinousness or depravity, you must find that the
     defendant had such a mental state as exhibited by
     engaging in at least one of the following actions:

         First, infliction of gratuitous violence on the
         victim;

         Second, needless mutilation of the victim’s body
         after death.

          In this context, “gratuitous violence” refers to
     violence committed upon the victim beyond that
     necessary to kill. In this context, “needless mutilation”
     means that the defendant, in an act separate from the
     killing itself, committed other acts with the intent to
     mutilate the victim’s corpse.
                          SMITH V. RYAN                            41

    The Arizona Supreme Court has interpreted Arizona’s
capital sentencing statute to provide that proving of any of the
three factors is sufficient to trigger the (E)(6) aggravator. See
State v. Cromwell, 119 P.3d 448, 456 (Ariz. 2005) (“As in
prior decisions, we note once again that the [(E)](6)
aggravator is stated in the disjunctive, indicating that
evidence of any one of the statutory prongs, ‘heinous,’
‘cruel,’ or ‘depraved’ will support a finding that the (F)(6)


             To assist you in determining whether or not murder
        is heinous or depraved, you may consider whether:

            The murder was senseless; or

            Second. Helplessness of the victim.

             All murders are senseless because of the brutality
        and finality. Yet not all are senseless as the term is
        used to distinguish those first degree murders that
        warrant a death sentence from those that do not.
        Rather, than senseless murder is one that is unnecessary
        to achieve a defendant’s criminal purpose.

             “Helplessness” is proven when the victim is unable
        to resist.

            Neither senselessness nor helplessness, standing
        alone, are sufficient to prove that this murder was
        heinous or depraved.

             As previously stated, the terms especially cruel,
        heinous or depraved are considered separately;
        therefore, the presence of any one of these factors, or
        combination of factors, is sufficient to establish the
        aggravating circumstance.

The trial judge delivered a nearly identical instruction at Lee’s
resentencing.
42                        SMITH V. RYAN

aggravator is present.”). On direct review, the Arizona
Supreme Court independently determined that the prosecution
proved the (E)(6) aggravator beyond a reasonable doubt,
concluding that “overwhelming evidence established that the
murders of Spencer and Lee were especially cruel.” Smith,
159 P.3d at 544.17

    The state supreme court agreed with the trial court’s
definition of cruelty in its jury instructions, explaining, “The
‘cruelty’ prong of the (E)(6) aggravator focuses on the
victim’s mental anguish and physical suffering. A finding of
cruelty requires proof that the victim consciously experienced
physical or mental pain prior to death, and the defendant
knew or should have known that suffering would occur.” Id.
(quotation marks omitted). The Arizona Supreme Court
noted that both victims were bound and had their mouths
taped shut, which would have been unnecessary if they were
unconscious. Id. That court also observed that both victims
had their noses and mouths filled with dirt and died of
asphyxiation. Id. Because such treatment would cause
mental anguish and physical pain, and because “[a]t a
minimum, Smith should have known pain and anguish would
occur,” the Arizona Supreme Court independently determined
that the prosecution had proved cruelty. Id. at 544–45. And
because proof of any of the three factors was sufficient, the
state supreme court did not consider the juries’ separate
findings of heinousness and depravity. Smith, 159 P.3d at
546.


     17
      At the time of the murders, state law required that the Arizona
Supreme Court “independently review[] the aggravation and mitigation
evidence to determine whether the death sentence was appropriate.”
Smith, 159 P.3d at 544 n. 15 (citing State v. Richmond, 560 P.2d 41, 51
(Ariz. 1976)).
                       SMITH V. RYAN                        43

    Smith challenged the (E)(6) aggravator in the district
court, arguing that it failed to narrow the class of death-
eligible defendants. In light of the U.S. Supreme Court’s
opinions in Walton, 497 U.S. at 652–56, and Jeffers, 497 U.S.
at 774–77, the district court denied habeas relief.

                              2.

                              a.

    In Walton, the U.S. Supreme Court rejected a vagueness
challenge to Arizona’s (E)(6) aggravator. 497 U.S. at
652–57. Like Smith, Walton argued that the “especially
heinous, cruel, or depraved aggravating circumstance as
interpreted by the Arizona courts fails to channel the
sentencer’s discretion as required by the Eighth and
Fourteenth Amendments.” Id. at 652.

    The Supreme Court acknowledged that the aggravator
was facially vague as written. Id. at 654. Nonetheless, it
rejected the challenge and upheld the (E)(6) aggravator,
holding that the Arizona Supreme Court’s narrowing
construction satisfied constitutional requirements. Id. at 654.
The U.S. Supreme Court distinguished its prior holdings in
Cartwright, in which it reversed a death sentence based on
Oklahoma’s similar “especially heinous, atrocious, or cruel”
aggravator, and in Godfrey, in which it reversed a death
sentence based on Georgia’s “outrageously or wanton or vile,
horrible or inhuman” aggravator. Unlike Walton, in both
Cartwright and Godfrey “the defendant[s] [were] sentenced
by a jury and the jury either was instructed only in the bare
terms of the relevant statute or in terms nearly as vague.
Neither jury was given a constitutional limiting definition of
44                      SMITH V. RYAN

the challenged aggravating factor.” Walton, 497 U.S. at 653
(citations omitted).

    In Walton, by contrast, the Arizona Supreme Court
explained that “‘a crime is committed in an especially cruel
manner when the perpetrator inflicts mental anguish or
physical abuse before the victim’s death,’ and that [m]ental
anguish includes a victim’s uncertainty as to his ultimate
fate.” Id. at 654 (alteration in original) (quoting State v.
Walton, 769 P.2d 1017, 1032 (Ariz. 1989). The U.S.
Supreme Court held that Arizona’s narrowing instruction
gave “meaningful guidance to the sentencer” and therefore
was constitutionally sufficient. Id. at 655. The Court also
said it would not “fault the state court’s statement that a crime
is committed in an especially ‘depraved’ manner when the
perpetrator ‘relishes the murder, evidencing debasement or
perversion,’ or ‘shows an indifference to the suffering of the
victim and evidences a sense of pleasure’ in the killing.” Id.
(quoting Walton, 769 P.2d at 1033).

    In another opinion decided the same day, the Supreme
Court also reversed our holding that Arizona’s construction
of the (E)(6) aggravator contravened Cartwright and Godfrey.
Jeffers, 497 U.S. at 774. Again, the Court distinguished both
cases. In Jeffers, the Arizona Supreme Court had applied a
narrowing construction with respect to the terms “heinous”
and “depraved,” looking to the “infliction of gratuitous
violence on the victim” and “the apparent relish with which
the defendant commit[ted] the murder.” Id. at 770. Those
narrowing constructions sufficiently channeled the
sentencer’s discretion. Id. at 776–77. The Court repeated its
prior holding, concluding that Walton “squarely foreclose[d]
any argument that Arizona’s subsection ([E])(6) aggravating
circumstances, as construed by the Arizona Supreme Court,
                         SMITH V. RYAN                           45

fails to channel the sentencer’s discretion by clear and
objective standards that provide specific and detailed
guidance, and that make rationally reviewable the process for
imposing a sentence of death.” Id. at 777–78 (internal
quotation marks omitted).

    Two years later, the U.S. Supreme Court took up another
challenge involving Arizona’s (E)(6) aggravator. Richmond,
506 U.S. at 46. The Arizona Supreme Court had not crafted
the (E)(6) aggravator’s narrowing construction before the
defendant was sentenced, and thus the sentencing judge could
not have relied on the aggravator without violating the
defendant’s constitutional rights. Id. at 47.18 Nonetheless, as
in Walton and Jeffers, the U.S. Supreme Court again
approved of the narrowing construction adopted after the
defendant had been sentenced, id. at 48, as set forth by the
Arizona Supreme Court in State v. Gretzler, 659 P.2d at
10–11 (Ariz. 1983):

        [T]he statutory concepts of heinous and
        depraved involve a killer’s vile state of mind
        at the time of the murder, as evidenced by the
        killer’s actions. Our cases have suggested
        specific factors which lead to a finding of
        heinousness or depravity[:]

        ....

        [One such factor] is the infliction of gratuitous
        violence on the victim.


  18
      The Court ultimately granted habeas relief because the Arizona
Supreme Court’s independent review had not cured the deficient
instruction. Richmond, 506 U.S. at 51–52.
46                    SMITH V. RYAN

       ....

       [Another] is the needless mutilation of the
       victim.

Richmond, 506 U.S. at 50–51.

                             b.

    Comparing the (E)(6) instruction given in Smith’s case
with the formulations approved by the U.S. Supreme Court in
Walton, Jeffers, and Richmond demonstrates that the Arizona
Supreme Court’s decision rejecting Smith’s claim was not an
unreasonable application of clearly established federal law.
Smith’s sentencing juries received instructions on cruelty
similar to those approved in Walton, requiring a finding that
the defendant knew or should have known that his actions
would cause physical pain or mental anguish before death and
that the victim was conscious to experience that pain or
anguish. See Walton, 497 U.S. at 654.

    Similarly, Smith’s sentencing juries were instructed that
heinousness required a “hatefully or shockingly evil” murder,
that depravity was “marked by debasement, corruption,
perversion or deterioration,” and that finding either
heinousness or depravity required proof that the killing
involved the “infliction of gratuitous violence” or “needless
mutilation of the victim’s body after death.” See Richmond,
506 U.S. at 50–51; Jeffers, 497 U.S. at 770. Indeed, to
further guide the juries, the state trial court defined
“gratuitous violence” as “violence committed upon the victim
beyond that necessary to kill” and “needless mutilation” as
                             SMITH V. RYAN                                 47

mutilation of the victim’s corpse “in an act separate from the
killing itself.”19

                                      c.

    In an effort to avoid the U.S. Supreme Court decisions
approving Arizona’s narrowing construction, Smith argues
that Ring v. Arizona, 536 U.S. 584 (2002), “implicitly
overruled” Walton on this point because it held that jurors
rather than judges must find aggravating factors, thereby
abrogating Walton’s contrary determination. Smith argues
that the U.S. Supreme Court “reluctant[ly]” accepted
Arizona’s narrowing construction in Walton only because
when Walton was decided, judges rather than juries found the


   19
      Smith challenges the “needless mutilation” instruction because it
failed to define “mutilation,” in contrast to the Nevada instruction that we
approved in Deutscher v. Whitley, 884 F.2d 1152, 1162 & n.1 (9th Cir.
1989) (approving the “mutilation” instruction given to the jury regarding
Nevada’s “torture, depravity, mutilation” aggravator), judgment vacated
sub nom. Angelone v. Deutscher, 500 U.S. 901 (1991). Deutscher’s
approval of Nevada’s mutilation instruction, however, does not render
Smith’s mutilation instruction an unreasonable application of clearly
established federal law.

     In Deutscher, 884 F.2d at 1162–63, and then in Valerio v. Crawford,
306 F.3d 742, 755–56 (9th Cir. 2002) (en banc), we held Nevada’s
depravity instructions unconstitutionally vague and compared them to the
impermissible aggravators in Godfrey and Cartwright. Unlike the
instructions in Smith’s case, however, Nevada’s improper depravity
instruction did not require the jury to find any particular fact or look to any
identified factors. See Deutscher, 884 F.2d at 1162 n.1 (“[D]epravity of
mind is characterized by an inherent deficiency of moral sense and
rectitude. It consists of evil, corrupt and perverted intent which is devoid
of regard for human dignity and which is indifferent to human life. It is
a state of mind outrageously, wantonly vile, horrible or inhuman.”);
Valerio, 306 F.3d at 752 (same).
48                       SMITH V. RYAN

(E)(6) factors or (E)(6) aggravator. According to Smith,
“[t]he change in Arizona’s law, from judge to jury
sentencing, renders Arizona’s heinous, cruel, or depraved
aggravating circumstances unconstitutional.”

    Smith’s argument does not support granting habeas relief.
Smith argues that Ring undermines the constitutionality of
Arizona’s (E)(6) aggravator jury instructions—as approved
by the U.S. Supreme Court in Walton, Jeffers, and
Richmond—despite the Court’s silence in Ring on the effect
of its holding on those prior cases.20 But “[s]ection
2254(d)(1) provides a remedy for instances in which a state
court unreasonably applies [Supreme Court] precedent; it
does not require state courts to extend that precedent or
license federal courts to treat the failure to do so as error.”
White, 134 S. Ct. at 1706. As the Court has explained, “if a
habeas court must extend a rationale before it can apply to the
facts at hand, then by definition the rationale was not clearly
established at the time of the state-court decision.” Id.
(internal quotation marks omitted). The Court has not
“squarely established” that the instruction approved of in its
prior decisions is insufficient when put to a jury. Id.
Irrespective of whether invalidation of the jury instructions in
Walton, Jeffers, and Richmond is “the logical next step” after
Ring, the Court “ha[s] not yet taken that step, and there are
reasonable arguments on both sides—which is all [Arizona]
needs to prevail in this AEDPA case.” Id. at 1707.




  20
      In Ring, the Supreme Court had no reason to evaluate the (E)(6)
aggravator because on direct review the state supreme court had found
insufficient evidence to support its application, relying instead on a
different aggravator. 536 U.S. at 596.
                       SMITH V. RYAN                        49

    In light of the Court’s decisions in Godfrey, Cartwright,
Walton, Jeffers, Richmond, and Ring, neither the state trial
court’s decision to give the (E)(6) narrowing instruction, nor
the Arizona Supreme Court’s (E)(6) analysis, was “so lacking
in justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” Harringon, 562 U.S. at 103.

                              E.

    Finally, in Claim 39 Smith argues that the district court
erred in denying his claim of ineffective assistance of counsel
at his 2004 resentencing proceedings. Specifically, Smith
points to a positron emission tomography (“PET”) scan and
diffusion tensor imaging (“DTI”) study that revealed
evidence of organic brain damage. Smith argues that his
counsel’s failure to obtain and present those scans at his
resentencings constituted ineffective assistance of counsel.

                              1.

    In Smith’s Rule 32 petition, he alleged that the PET scan
constituted newly discovered evidence that entitled him to
post-conviction relief. The petition did not allege ineffective
assistance of counsel. The superior court denied Smith’s
petition, ruling that the PET scan could have been obtained or
“discovered” prior to his resentencing, and that the scan was
cumulative of Dr. Parrish’s testimony. The Arizona Supreme
Court denied review.

    In the district court, Smith argued for the first time that
his counsel’s failure to obtain the PET scan and DTI study
constituted ineffective assistance. The district court denied
relief on this claim on several grounds. The court found that
50                     SMITH V. RYAN

Smith’s sentencing counsel had not been ineffective, noting
that Smith had been examined by ten doctors and
psychiatrists prior to the resentencing proceedings, none of
whom had found any organic brain damage. The district
court also found that Dr. Parrish’s testimony, along with
testimony about Smith’s difficult childhood and history of
asthma, sufficiently addressed the concerns expressed by our
1999 opinion, see Smith, 189 F.3d 1004, and that the strength
of the prosecution’s rebuttal evidence foreclosed a finding of
prejudice. The district court further concluded that Smith had
procedurally defaulted his ineffective assistance of counsel
claim by failing to raise it before the Arizona state courts.

                              2.

    Smith failed to raise his ineffective assistance of counsel
claim in his state post-conviction proceedings, as required by
Arizona law. Dickens v. Ryan, 740 F.3d 1302, 1319 (9th Cir.
2014). Thus, we agree with the district court that Smith’s
ineffective assistance of counsel claim was procedurally
defaulted.

    Smith argues that his default is excused under Martinez
v. Ryan, —U.S.—, 132 S. Ct. 1309, 1316–17 (2012). We
have held that

       [t]o establish ‘cause’ to overcome procedural
       default under Martinez, a petitioner must
       show: (1) the underlying ineffective assistance
       of trial counsel claim is ‘substantial’; (2) the
       petitioner was not represented or had
       ineffective counsel during the PCR
       proceeding; (3) the [Rule 32] proceeding was
       the initial review proceeding; and (4) state law
                       SMITH V. RYAN                         51

       required (or forced as a practical matter) the
       petitioner to bring the claim in the initial
       review collateral proceeding.

Dickens, 740 F.3d at 1319 (citing Trevino v. Thaler,
—U.S.—, 133 S. Ct. 1911, 1918 (2013)). Smith satisfies the
third and fourth prongs of the Dickens test because Arizona
law does not permit defendants to raise ineffective assistance
claims on direct appeal, and Smith failed to allege such a
claim in his Rule 32 petition. See Martinez, 132 S. Ct. at
1316–17; Dickens, 740 F.3d at 1319. The first prong of the
test, however, requires that the underlying ineffective
assistance of counsel claim be “substantial.” Under that
standard, an underlying claim is “insubstantial” if it “does not
have any merit or . . . is wholly without factual support.”
Martinez, 132 S. Ct. at 1319. Thus, to assess whether Smith
has satisfied the first prong required to excuse his procedural
default under Dickens, we conduct a preliminary assessment
of his underlying claim.

    To establish ineffective assistance of counsel, Smith must
demonstrate (1) that counsel was ineffective and (2) that
counsel’s deficient performance prejudiced him. Strickland
v. Washington, 466 U.S. 668, 692 (1984). To satisfy the
second prong, Smith “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at
694.

      Here, even if counsel’s failure to obtain the brain scans
constituted deficient performance, Smith cannot establish
prejudice. In a capital case, “the question is whether there is
a reasonable probability that, absent the errors, the sentencer
. . . would have concluded that the balance of aggravating and
52                    SMITH V. RYAN

mitigating circumstances did not warrant death.” Id. at 695.
The prosecution’s evidence in both the Spencer and Lee
sentencing hearings was extensive. The jurors were
presented with evidence of Smith’s prior rapes, including the
brutal rape of Dorothy Fortner while she was pregnant. They
also heard, in graphic detail, how Smith tortured and
suffocated Spencer and Lee. Moreover, the brain scans that
Smith obtained in the Rule 32 proceedings were largely
cumulative of the mitigating evidence presented by Dr.
Parrish.        Dr. Parrish conducted a battery of
neuropsychological tests on Smith, and she testified that he
suffered mild to moderate brain impairment and that his
results fell in the “brain damaged range.” Given the strength
of the prosecution’s rebuttal evidence and the cumulative
nature of the brain scans, Smith cannot establish that any
deficient performance by counsel affected the sentences
imposed. Because Smith cannot establish prejudice, we need
not consider whether the performance of Smith’s sentencing
counsel fell below a reasonable standard of professional
competence.

    Smith’s underlying claim is not substantial, therefore
Smith’s procedural default cannot be excused under Martinez.
132 S. Ct. at 1317. We thus conclude that Smith’s ineffective
assistance of counsel claim was procedurally defaulted.

                            IV.

   For the forgoing reasons, we affirm the district court’s
denial of Smith’s petition.

     AFFIRMED.
