                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

DANIEL WAYNE COOK,                          No. 06-99005
               Petitioner-Appellant,           D.C. No.
                 v.                        CV-97-00146-PHX-
DORA B. SCHRIRO, Director,                      RCB
Arizona Department of                        ORDER AND
Corrections, State Prison,                    AMENDED
              Respondent-Appellee.
                                              OPINION

       Appeal from the United States District Court
                for the District of Arizona
      Robert C. Broomfield, District Judge, Presiding

                 Argued and Submitted
           December 5, 2007—Portland, Oregon

                  Filed February 20, 2008
                 Amended August 14, 2008

  Before: Diarmuid F. O’Scannlain, Susan P. Graber, and
          Consuelo M. Callahan, Circuit Judges.

                 Opinion by Judge Callahan




                            10549
                       COOK v. SCHRIRO                   10553


                         COUNSEL

Michael J. Meehan, Munger Chadwick, P.L.C., Tucson, Ari-
zona, for the petitioner-appellant.

Kent E. Cattani, Chief Counsel, Capital Litigation Section,
Office of the Attorney General, Phoenix, Arizona, for the
respondent-appellee.


                          ORDER

   The opinion filed February 20, 2008, is amended by the
opinion filed concurrently with this order. With the filing of
the amended opinion, the panel has voted to deny the petition
for panel rehearing and the petition for rehearing en banc. The
full court has been advised of the petition for rehearing en
banc and no judge of the court has called for a vote on en
banc rehearing. See Fed. R. App. P. 35(f). The petition for
panel rehearing and petition for rehearing en banc are
DENIED. No further petitions for rehearing or petitions for
rehearing en banc may be filed.
10554                      COOK v. SCHRIRO
                              OPINION

CALLAHAN, Circuit Judge:

   Petitioner Daniel Wayne Cook appeals the denial of his 28
U.S.C. § 2254 petition. Cook waived counsel and represented
himself at trial through sentencing. A jury convicted him of
two counts of first-degree murder and the court sentenced him
to death under Arizona Revised Statutes §§ 13-503 and 13-
703. Cook now claims that his decision to waive counsel was
involuntary because his original appointed trial counsel was
ineffective; that his co-defendant, John Eugene Matzke’s plea
agreement violated Cook’s right to a fair trial; and that the
prosecutor improperly commented on Cook’s failure to testify
and his post-Miranda silence. In addition, Cook claims that
the trial court erred by failing to instruct the jury on second-
degree murder. Cook also argues that the ineffectiveness of
his appellate counsel excuses his procedural default of some
of his remaining claims. Finally, Cook argues that the sen-
tencing court failed to consider evidence of intoxication and
his prior mental health history as mitigating factors before
imposing the death penalty. We affirm the district court’s
denial of Cook’s petition for a writ of habeas corpus.

                               FACTS1

   On July 19, 1987, Cook and Matzke were living together
in a two bedroom apartment in Lake Havasu City, Arizona.
Carlos Cruz-Ramos, a co-worker at a local restaurant, who
recently had moved in with Cook and Matzke, slept on the
floor. After Matzke returned from work that afternoon, Cook
told Matzke that he knew Ramos had a lot of money and that
  1
    We recite the facts as found by the Arizona state court. Although Cook
disputes some of these facts, under AEDPA we must presume that the
state court’s findings are correct unless Cook rebuts the presumption with
clear and convincing evidence. 28 U.S.C. § 2254(c)(1); Davis v. Wood-
ford, 333 F.3d 982, 991 (9th Cir. 2003). He has not done so.
                      COOK v. SCHRIRO                  10555
he wanted to take it. At approximately 6:00 p.m., Cook sug-
gested that Matzke take Ramos upstairs to show him the view
from Matzke’s bedroom balcony. After Matzke and Ramos
returned downstairs, Ramos discovered his money pouch was
missing, and Cook suggested that Ramos look for the pouch
upstairs. When Ramos went upstairs, Cook grabbed him,
Matzke ripped up some bedsheets, and they tied Ramos to a
chair in Cook’s bedroom. Cook punched and taunted Ramos
before putting Ramos in Cook’s closet so that Cook and
Matzke could look through Ramos’s other possessions.
Ramos escaped from the closet, but Cook chased him down,
took him back upstairs, and re-tied him to the chair.

   Cook and Matzke began beating Ramos with a metal pipe
and a stick. Cook and Matzke also burned Ramos’s chest,
stomach, and genitals with cigarettes. Cook cut Ramos’s chest
with a knife, and Matzke put a bandage on the cut to stop the
bleeding. At around 9:45 p.m., Matzke went to the Acoma
Stop and Shop to buy beer. When Matzke returned to the
apartment, he saw Cook sodomize Ramos. Cook also used a
mini-stapler on Ramos’s foreskin. Matzke asked Cook why he
was torturing Ramos, and Cook replied, “I’m having fun.”

   At around 11:00 p.m., Matzke told Cook that they could
not let Ramos go, and Cook responded, “Well, you can kill
him at midnight; the witching hour.” Cook and Matzke con-
tinued torturing Ramos until midnight, then Matzke attempted
to strangle Ramos with a sheet and the pipe. Matzke eventu-
ally placed Ramos on the floor, placed the pipe across
Ramos’s neck, and stood on the pipe until Ramos’s heart
stopped beating at around 12:15 a.m. After throwing Ramos’s
body down the stairs, Cook and Matzke placed the body in
Matzke’s closet.

   At around 2:30 or 3:00 a.m., Kevin Swaney arrived at
Cook’s apartment. At first, Cook told Swaney to leave but
then Cook asked Swaney to come into the apartment. Cook
told Swaney that they had some drugs they wanted to get rid
10556                  COOK v. SCHRIRO
of, and pushed a couch in front of the door so nobody would
come into the apartment. Then Cook and Matzke told Swaney
about the dead body. Cook took Swaney upstairs to show him
the body and, when they returned downstairs, Cook told
Matzke to get bindings and a gag. Cook forced Swaney to
take off his clothes, and Matzke and Cook tied Swaney to a
chair. Matzke asked Cook what Cook was planning to do, and
Cook said he was going to talk to Swaney. Matzke told Cook
that if he was going to torture Swaney, Matzke did not want
any part of it. Matzke went to the living room and fell asleep.

   At around 4:30 or 5:00 a.m., Cook woke Matzke. Swaney
was still tied up and crying. Cook told Matzke that he sodo-
mized Swaney so now they had to kill him. Cook took a sheet
from around his neck and wrapped it around Swaney’s neck.
Matzke and Cook each took one end of the sheet and pulled,
but Matzke’s end kept slipping out of his hand. At that point,
Cook said “This one’s mine,” put Swaney on the floor, and
strangled him. Matzke and Cook took Swaney’s body up to
Matzke’s room and placed the body in the closet. Matzke and
Cook went back downstairs and slept.

   That afternoon, Matzke went to work for two and a half
hours before quitting because he was concerned about what
Cook would do if he was not there. When Matzke got home,
he and Cook went to a bar and drank for several hours. At
10:30 p.m., they returned to the apartment and met Byron
Watkins and other friends by the pool of their apartment com-
plex. Cook and Matzke invited their friends into the apart-
ment. The next morning, Matzke showed Watkins the bodies.
Watkins convinced Matzke to go to the police. Matzke and
Watkins went to the police department, and Matzke gave a
videotaped confession.

  Officers responded to the apartment and arrested Cook at
around 4:50 a.m. After Detective David Eaton gave Cook
Miranda warnings, Cook said, “we got to partying; things got
out of hand; now two people are dead.” Cook then said that
                       COOK v. SCHRIRO                  10557
“my roommate killed one and I killed the other.” He admitted
to choking Swaney to death. After making those admissions,
Cook refused to make any further statements.

          PROCEDURAL HISTORY — TRIAL

  On July 21, 1987, Cook and Matzke were charged with two
counts of first-degree murder, including a death penalty alle-
gation under Arizona Revised Statute § 13-703. Claude Keller
was appointed to represent Cook. A grand jury returned an
indictment on two counts of first-degree murder against Cook
and Matzke.

   Cook was given psychological evaluations on October 23,
and November 17, 1987. The court held a hearing on January
4, 1988, and concluded that Cook was competent to stand
trial. Cook’s counsel filed a motion for an additional mental
examination on January 14, 1988, and a neurological exami-
nation was performed on or about February 13, 1988. The
results of the February 13, 1988, examination were filed with
the court.

   On April 11, 1988, Cook filed a pro se motion to waive
counsel and have his counsel appointed as advisory counsel.
During the April 21, 1988, hearing on Cook’s motion to
waive counsel, Cook asked for a different advisory counsel,
stating, “If you’re amenable to my waiver of counsel, I would
ask that you not appoint Mr. Keller as my legal advisor.”
Cook explained, “Mr. Keller has worked hard for my defense;
cares about the outcome of my trial. My personal beliefs is
that he cannot advise me according to my defense.” Cook
then asked for Mr. O’Brien to be his advisory counsel, but the
court indicated that Mr. Forrester was the only other contract
counsel available. Cook rejected Mr. Forrester. Judge Steven
F. Conn of the Mohave County Superior Court gave Cook a
lengthy explanation of the perils of self-representation. Cook
still wanted to represent himself. After conducting extensive
questioning pursuant to Faretta v. California, 422 U.S. 806,
10558                        COOK v. SCHRIRO
835 (1975), the court found that Cook voluntarily, knowingly,
and intelligently gave up his right to counsel. The court
granted Cook’s motion and appointed Mr. Keller as Cook’s
advisory counsel.

   Matzke entered into a stipulated guilty plea and executed
an agreement to testify truthfully in a manner consistent with
his videotaped confession on October 30, 1987. The trial
judge sentenced Matzke to twenty years in prison. Cook’s
investigators and his advisory counsel attended Matzke’s sen-
tencing hearing. Matzke testified at Cook’s trial on June 28,
1988, and again on July 5, 1988.

   On December 16, 1987, the State filed a motion of potential
election and motion to preclude evidence of intoxication. At
a hearing on June 24, 1988, Cook did not oppose the motion,
stating: “What [the prosecutor] brings up in his motion basi-
cally does not even apply to my defense, your Honor.”2 At
  2
   The exchange went, in relevant part, as follows:
      The Court: Mr. Cook, is there anything that you want to say
      concerning the motion? Of course, I don’t have any idea whether
      it is your intent to try to present evidence that you were intoxi-
      cated but is there anything you want to say concerning [the prose-
      cutor’s] motion?
      The Defendant: What [the prosecutor] brings up in his motion
      basically does not even apply to my defense, your Honor.
      The Court: Well, let me ask you this, Mr. Cook, then. Do you
      have any objection if I were to preclude any evidence concerning
      whether you were intoxicated or not? This would cover — and
      I don’t know that much whether either of these would apply. I
      think I recall there was testimony of alcohol consumption. This
      would include evidence as to whether you had consumed alcohol.
      If you had consumed any drugs or taken any drugs of any sort,
      this would preclude evidence that you had taken any drugs. If I
      were to grant [the prosecutor’s] motion that would mean that he
      would not be asking people whether you were intoxicated on
      drugs or alcohol and you also would not be able to ask people on
      cross-examination or establish through questioning of witnesses
                          COOK v. SCHRIRO                        10559
trial, Cook elected general denial and alibi theories as his
affirmative defenses. Cook reiterated that he did not want to
present evidence of drinking or drug use by him or Matzke
during a pre-trial conference.

   Cook also claimed in his opening statement that he “merely
repeated the detective’s statement and I asked for an attorney
and I have nothing further to say,” and denied confessing.
During the trial, Cook questioned Detective Eaton extensively
about his contact with Cook on July 21. Cook attempted to
discredit Detective Eaton’s testimony that Cook confessed to
killing Swaney by asking about the circumstances of the state-
ment and why the statement was not videotaped. Detective
Eaton eventually responded that Cook’s confession was not
taped because Cook invoked his right to remain silent. Cook
asked to approach the bench and later moved for a mistrial.
The trial judge denied the motion for a mistrial, finding that
Detective Eaton’s testimony was in response to Cook’s line of
questioning and a proper explanation for why Cook’s confes-
sion was not taped.

   In Cook’s closing argument, he attempted to argue that he
was not at the apartment, and blamed Matzke and Watkins for
the murders. He argued that he could not tell the jury about
any party in his apartment, stating, “Mr. Matzke stated in his
testimony there was a party that night at the apartment. I
couldn’t tell you. I don’t know.” Later, Cook claimed that,
“[a]t no time did any of the officers ever state that I confessed
to killing someone.” Cook argued extensively about Matzke’s
possible motive to lie.

   whether you had been intoxicated as a result of drugs or alcohol.
   In other words, are you telling me you didn’t intend to do that
   any way?
   The Defendant: That’s exactly what I was stating, your Honor.
   I have no objection.
10560                  COOK v. SCHRIRO
   In the prosecutor’s rebuttal argument, he argued that Cook
failed to tell defense witness and fellow jail inmate, Terry
Holt, where he had been to establish an alibi, and that Cook
had something to hide because Cook had covered up his dag-
ger tattoo with a large bandage. In addition, when arguing that
Matzke’s videotaped statement was reliable, the prosecutor
referred to Cook’s cross-examination of Detective Eaton
about why Cook’s statement was not on tape. The prosecutor
argued:

    John Matzke made [a videotaped statement] and we
    heard continuous cross-examination of the detective
    about why the Defendant didn’t make one. He didn’t
    make one because he, the Defendant, was the one
    that cut off the interview. If he had made one, you
    would have had the statements we got to partying a
    little bit and things got out of hand. My roommate
    killed one and I killed the other. I killed Kevin. You
    would have heard the exact same statements.

In addition, the prosecutor commented on the potential wit-
nesses to the crime, stating: “There were only four people
there at that time of the deaths; two of them are dead; one is
in prison; one is the Defendant.” The prosecutor followed this
comment by discrediting Cook’s alibi defense — noting that
Cook’s alibi witness was in jail at the time and that a rebuttal
witness testified that Cook was present in the apartment on
July 19th and 20th. Cook did not object at the time these com-
ments were made, but moved for a mistrial during jury delib-
erations. The court denied the motion for a mistrial on the
same grounds that it denied Cook’s earlier motion after
Detective Eaton’s testimony.

   After the conclusion of the testimony, the court distributed
its proposed jury instructions to Cook and the prosecutor. The
judge specifically informed Cook that he did not include any
lesser-included instructions or alternative jury verdicts. Cook
did not object to a first-degree murder instruction using
                       COOK v. SCHRIRO                    10561
“knowingly” as the required mental state. Cook requested the
second-degree murder instruction because Matzke had
pleaded guilty to second-degree murder under the terms of his
plea bargain. After hearing argument, the judge concluded
that there was no evidence to show a lack of premeditation
and denied Cook’s request to give a second-degree murder
instruction.

   The court gave its instructions, and the jury began delibera-
tions at 2:07 p.m. on July 6, 1988. The jury returned with a
guilty verdict on both counts later that afternoon at 3:23 p.m.

   Cook filed a motion for further mental health evaluation on
July 29, 1988. At oral argument on the motion, Cook argued
that a post-trial examination under Arizona Rule of Criminal
Procedure 26.5 would serve a different purpose from his pre-
trial examinations under Arizona Rule of Criminal Procedure
11.2. The trial judge heard argument on the motion on August
4, 1988, and denied the motion, concluding that, unless Cook
could articulate a reason that the Rule 11 examinations were
insufficient, there was no reason for further examination. The
judge informed Cook that, if he wanted the judge to consider
the prior mental health evaluations, the judge would consider
them when deciding whether or not there were mitigating cir-
cumstances.

   At sentencing, Cook declined to present any evidence to the
court. Cook complained that he was not given proper access
to the Mohave County law library, and then said that the
“[o]nly sentence I will accept from this Court at this time is
the penalty of death, your Honor. I have nothing further.” The
court reviewed the pre-sentence report, the Rule 11 mental
health evaluations, the State’s sentencing memorandum, a let-
ter from Cook, the trial evidence, and matters from hearings
in the case. The trial judge found the following aggravating
factors: 1) that Ramos was killed for pecuniary gain under
Arizona Revised Statutes § 13-703(F)(4); 2) that the murders
of Ramos and Swaney were done in an especially heinous,
10562                   COOK v. SCHRIRO
cruel, or depraved manner under Arizona Revised Statutes
§ 13-703(F)(6); and 3) that multiple murders were committed
under Arizona Revised Statutes § 13-703(F)(8). When consid-
ering Cook’s capacity to appreciate the wrongfulness of his
conduct under Arizona Revised Statutes § 13-703(G), the
court found that there was insufficient evidence that Cook’s
intoxication affected his ability to appreciate the wrongfulness
of his conduct. In addition, the judge considered Cook’s prior
history of mental illness, suicide attempts, and other mental
problems and found that there was no connection between
Cook’s prior mental problems and the murders. The court
found no mitigating factors to offset the aggravating factors,
and sentenced Cook to the death penalty.

        PROCEDURAL HISTORY — POST-TRIAL

   On direct appeal, Cook raised the following issues: 1) error
in denying his Sixth Amendment right to counsel because the
trial court allowed him to waive appointed counsel and failed
to permit hybrid representation; 2) error in allowing the prose-
cution to proceed under a “knowingly” rather than “intention-
ally” theory and in precluding evidence of intoxication; 3)
error in refusing to grant a mistrial over the prosecutor’s com-
ments on Cook’s invocation of his Fifth Amendment rights;
4) error in dismissing a juror during trial; 5) error in refusing
to continue the trial to allow Cook to secure additional wit-
nesses; 6) error in admitting Cook’s statements at his arraign-
ment; 7) error in admitting of Matzke’s testimony pursuant to
a coercive plea agreement; 8) error in refusing to instruct the
jury on second-degree murder; 9) finding the multiple homi-
cide aggravating circumstance; 10) finding that Ramos’s mur-
der was especially “cruel, heinous and depraved”; 11) finding
Ramos’s murder was for pecuniary gain; 12) finding
Swaney’s murder “cruel, heinous and depraved”; 13) preclud-
ing of evidence of voluntary intoxication for the purposes of
mitigation; 14) failing to consider Cook’s mental health his-
tory as a mitigating factor; 15) failing to consider the disparity
between Matzke’s and Cook’s sentences; and 16) error in fail-
                           COOK v. SCHRIRO                        10563
ing to conclude that the Arizona death penalty statute was uncon-
stitutional.3 State v. Cook, 821 P.2d 731, 738-39 (Ariz. 1991).

   While his direct appeal was pending, Cook asked to have
his counsel relieved for failing to communicate with him or
explain the issues to him. Cook also filed a petition for post-
conviction relief (“PCR”) asserting ineffective assistance of
appellate counsel. Cook’s counsel on direct appeal filed an
explanation of his position, and moved to withdraw or, in the
alternative, to have the Arizona Supreme Court clarify his sta-
tus. The Arizona Supreme Court denied the motion to with-
draw on December 19, 1990. On February 25, 1991, the
Arizona Supreme Court issued a minute order finding Cook’s
post-conviction petition was premature, appointing a different
attorney as counsel for post-conviction proceedings under
Arizona Rule of Criminal Procedure 32, and granting addi-
tional time to file an amended petition for post-conviction
relief if necessary. On December 5, 1991, the Arizona
Supreme Court affirmed Cook’s conviction and sentence.
Cook, 821 P.2d at 756. The United States Supreme Court
denied Cook’s petition for a writ of certiorari. Cook v. Ari-
zona, 506 U.S. 846 (1992).

  On September 1, 1993, Cook’s PCR counsel filed a Supple-
ment to Petition for Post-Conviction Relief. The supplemental
petition raised nine issues: 1) Cook was forced to choose
between ineffective counsel and self-representation, denying
him of his Sixth Amendment right to counsel; 2) Cook’s
counsel was ineffective prior to Cook’s motion to represent
himself, therefore the entire trial was tainted; 3) Matzke’s tes-
  3
    The Arizona Supreme Court noted that the United States Supreme
Court rejected Cook’s challenges to Arizona’s death penalty statute in
Walton v. Arizona, 497 U.S. 639, 648-55 (1990), and declined to address
this issue. Cook, 821 P.2d at 739. Walton was later overturned by Ring v.
Arizona, 536 U.S. 584, 588 (2002), on the issue of whether judges or
juries should impose the death penalty. In Schriro v. Summerlin, 542 U.S.
348, 358 (2004), the United States Supreme Court held that Ring was not
retroactive.
10564                       COOK v. SCHRIRO
timony was coerced by an unconstitutional plea agreement;4
4) Cook made an unrecorded objection to the testimony of
Matzke; 5) Cook was denied access to a law library to prepare
his case; 6) the trial court did not conduct the required hearing
under State v. Tison, 774 P.2d 805 (Ariz. 1989), to determine
whether Cook had a reckless indifference to human life under
a felony murder theory; 7) the trial court was required to
appoint counsel for the penalty phase even if Cook wanted to
waive counsel and be put to death; 8) Cook was not compe-
tent to represent himself; and 9) Cook’s appellate counsel was
ineffective for failing to raise these issues.

   On October 5, 1994, the court issued an order finding that
issues 5, 6, and 7 were precluded under Arizona Rule of
Criminal Procedure 32.2 because Cook failed to preserve
them on direct appeal. The court also ruled that issue 9 failed
to raise a colorable claim for relief because any failure by
appellate counsel to preserve the issue was caused by Cook.
The court then scheduled evidentiary hearings on the remain-
ing claims to hear any newly discovered evidence. The court
heard evidence on the PCR petition on August 23, 1994, and
December 2, 1994, and denied the petition for post-conviction
relief on February 3, 1995.

   On April 3, 1995, Cook filed a motion for rehearing under
the applicable version of Arizona Rule of Criminal Procedure
32.9, requesting rehearing on: the voluntariness of his deci-
sion to represent himself (PCR supp. issue 1); the testimony
of Matzke and his plea agreement (PCR supp. issue 3); newly
discovered evidence of Matzke’s intoxication (a new issue);
violation of Cook’s due process rights by the trial judge’s
refusal to recuse himself (a new issue); the denial of access
to a law library (PCR supp. issue 5); the trial court’s finding
  4
    Cook filed a supplement providing additional arguments concerning
claim 3 in light of the Arizona Supreme Court’s holding in State v. Fisher,
858 P.2d 179 (Ariz. 1993), that plea agreements requiring testimony con-
sistent with a specific statement were unenforceable.
                        COOK v. SCHRIRO                    10565
that Cook had a reckless disregard for human life (PCR supp.
issue 6); and the trial court’s failure to appoint counsel at sen-
tencing to put on a mitigation defense (PCR supp. issue 7).
The trial court denied the motion for rehearing on April 13,
1995. Cook filed a timely petition for review pursuant to Ari-
zona Rule of Criminal Procedure 32.9 that relied on the state-
ment of issues in his motion for rehearing. The Arizona
Supreme Court denied the petition for review on July 5, 1996.
The United States Supreme Court denied a petition for writ of
certiorari.

   Cook filed his federal habeas petition on January 24, 1997.
On February 28, 1997, the district court appointed habeas
counsel and granted Cook’s motion to proceed in forma
pauperis. Cook advanced twenty-one claims for relief: 1)
Cook’s request to represent himself was not knowing, volun-
tary, and informed because he was forced to choose between
ineffective counsel and self-representation; 2) Cook was not
competent to represent himself; 3) pre-trial counsel’s ineffec-
tiveness, the refusal to grant a continuance, and the lack of
access to the law library denied Cook his Sixth Amendment
rights; 4) allowing Cook to exercise his right to represent him-
self violated the Sixth, Eighth and Fourteenth Amendments;
5) admission of Cook’s statement at arraignment violated his
Fifth Amendment right to remain silent and his right to coun-
sel; 6) Matzke’s testimony was coerced by an unconstitutional
plea agreement; 7) proceeding under a “knowingly” theory of
premeditation and precluding evidence of voluntary intoxica-
tion violated Cook’s Sixth Amendment right to call witnesses
on his behalf; 8) the prosecutor’s investigation into the
excused juror’s activity violated Cook’s right to a trial by
jury; 9) refusal to give a second-degree murder instruction
violated due process under Beck v. Alabama, 447 U.S. 625,
638 (1980); 10) the prosecutor’s comments on Cook’s failure
to explain his whereabouts and Cook’s silence violated his
Fifth Amendment right to remain silent; 11) the trial court’s
determination that Cook had a reckless indifference to human
life when committing the murders was unconstitutional; 12)
10566                   COOK v. SCHRIRO
the trial court’s refusal to grant an additional mental health
evaluation at sentencing violated Ake v. Oklahoma, 470 U.S.
68 (1985); 13) the failure to appoint counsel for Cook during
the penalty phase violated his Eighth Amendment rights and
due process; 14) the failure of the trial court to receive evi-
dence of intoxication as mitigating evidence violated Cook’s
Eighth Amendment rights; 15) Arizona’s death penalty statute
was unconstitutional because it allowed judge-imposed sen-
tences, created a presumption in favor of the death penalty,
and shifted the burden of proof concerning aggravating and
mitigating factors; 16) the trial court’s failure to consider
Cook’s history of neurological trauma, mental dysfunction,
and suicide attempts violated his Eighth Amendment rights;
17) the failure of the trial judge to recuse himself after know-
ingly appointing an incompetent lawyer, accepting Matzke’s
coercive plea agreement, and making rulings at trial violated
Cook’s right to due process; 18) the trial court erred in finding
the murder of Ramos was “cruel, heinous or depraved”; 19)
the trial court’s finding that Ramos’s murder was for “pecuni-
ary gain”; 20) the trial court’s finding that Swaney’s murder
was “cruel, heinous or depraved”; and 21) the trial court’s
finding of multiple homicides as an aggravating factor.

   On September 17, 1999, the district court issued an order
ruling that claims 7, 11, 12, 13, 17, 18, 19, and 20 were proce-
durally barred because Cook failed to present them to the Ari-
zona Supreme Court. The district court also ruled that claim
3, except the portion claiming that the denial of continuances
deprived Cook of due process, and claim 21, except the por-
tion claiming that the State did not give notice of its intent to
seek a multiple homicide aggravating factor, were procedur-
ally barred. The district court then considered the remaining
claims on the merits, ruled that Cook was not entitled to
relief, and denied Cook’s petition on March 28, 2006. The
district court simultaneously issued a certificate of appeala-
bility under Federal Rule of Appellate Procedure 22(b) on
claims 1, 2, 6, 10, and the procedural default rulings on claims
                             COOK v. SCHRIRO                          10567
17 through 20.5 This appeal followed. On October 30, 2007,
we issued an order granting a certificate of appealability as to
claims 3, 7, 9, 12, and 16.

                   STANDARDS OF REVIEW

   Under the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”),6 we may grant habeas relief from a state
conviction only if it is contrary to, or an unreasonable applica-
tion of, clearly established law as determined by the United
States Supreme Court, or it was based on an unreasonable
determination of the facts in light of the evidence presented
in the state courts. See Mitchell v. Esparza, 540 U.S. 12, 15
(2003) (per curiam) (discussing AEDPA standards). We
review de novo the district court’s decision to grant or deny
a petition for a writ of habeas corpus. Clark v. Murphy, 331
F.3d 1062, 1067 (9th Cir. 2003). We review the last reasoned
state-court judgment to determine whether that decision was
contrary to, or unreasonably applied federal law. Ylst v. Nun-
nemaker, 501 U.S. 797, 803 (1991). A state court decision is
“contrary to” federal law if it misstates or fails to identify the
controlling Supreme Court precedent or if it reaches a differ-
ent result in a case that is materially indistinguishable from a
Supreme Court case. Williams v. Taylor, 529 U.S. 362, 405-
07 (2000). A decision is an “unreasonable application” of fed-
eral law if it is objectively unreasonable. Id. at 409.

  A state court’s factual determination may not be overturned
unless we cannot “reasonably conclude that the finding is sup-
ported by the record.” Taylor v. Maddox, 366 F.3d 992, 1000
  5
     Cook failed to brief claim 2 on appeal, as well as the procedural default
rulings on claims 18 through 20. We deem these claims abandoned. See
Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991) (noting failure to
raise or brief an issue in a timely fashion may constitute waiver on
appeal).
   6
     AEDPA applies because Cook filed his federal habeas petition after
April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 327 (1997).
10568                  COOK v. SCHRIRO
(9th Cir. 2004). The burden of proof rests with the petitioner.
Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
We review de novo the failure to exhaust state court remedies.
Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir. 2005).

                        DISCUSSION

I.   Ineffective assistance of pre-trial counsel.

   Cook argues that his pre-trial counsel’s ineffectiveness
forced him to choose to represent himself; therefore, his
waiver of counsel was not voluntary. Cook also argues that
the trial court had a duty to inquire into his reasons for want-
ing to represent himself, and that the trial court should have
discovered pre-trial counsel’s ineffectiveness. The state trial
court for Cook’s post-conviction relief petition rejected this
argument and found that counsel’s pre-waiver representation
was not ineffective. The district court found that there is no
Supreme Court case law that requires a trial court, faced with
a defendant who wants to represent himself, to inquire why he
wants to exercise his right to self-representation.

   [1] Under AEDPA, we defer to the state court’s finding that
Cook’s waiver of the right to counsel was knowing, intelli-
gent, and voluntary unless it is contrary to or an unreasonable
application of Faretta, 422 US. 806. See Weaver v. Pal-
mateer, 455 F.3d 958, 963 n.6 (9th Cir. 2006) (noting stan-
dard of review for mixed questions of law and fact), cert.
denied, 128 S. Ct. 177 (2007). A state court’s decision may be
an “unreasonable application” of Federal law if it “extends or
fails to extend a clearly established legal principle to a new
context in a way that is objectively unreasonable.” Hernandez
v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002). In this case, the
state trial court’s determination that Cook’s waiver of his
right to counsel was voluntary after hearing Cook’s post-
conviction relief petition, was not objectively unreasonable.
The state trial court first concluded that Cook failed to show
prejudice from any of pre-trial counsel’s actions under Strick-
                           COOK v. SCHRIRO                        10569
land v. Washington, 466 U.S. 668, 687, 694 (1984) (stating
counsel’s actions must fall below an objective standard of rea-
sonableness and be prejudicial in order to constitute ineffec-
tive assistance of counsel). The trial court, when denying
Cook post-conviction relief, also found that Cook could not
point to any specific action that was ineffective. The court
noted that evidence of pre-trial counsel’s reputation was
insufficient to establish ineffective assistance of counsel.

   [2] Those factual determinations are supported by the
record. Cook’s claimed prejudice was the lost opportunity to
have a stronger presentation on a reasonable doubt defense, to
impeach Matzke with Matzke’s intoxication, or to challenge
Matzke’s plea agreement. The record is clear, however, that
Cook was aware of Matzke’s intoxication, and Cook’s own
choice of cross-examination questions cannot be imputed to
his former counsel.7 Cook failed to point to any evidence that
his original appointed counsel should have uncovered that
would create “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. Therefore, the
trial court’s rulings on Cook’s ineffective assistance of coun-
sel claims were not contrary to or unreasonable applications
of Strickland.

  Finally, the trial court noted that the federal case law cited
by Cook involved clearly-expressed dissatisfaction with
appointed counsel and that none of the case law created an
obligation for trial courts to inquire into the reasons why a
defendant wants to represent himself. The Supreme Court has
never held that a defendant who does not inform the court that
he wants to represent himself because he believes that his
counsel is ineffective was coerced into representing himself;
  7
   The Supreme Court has stated that “a defendant who elects to represent
himself cannot thereafter complain that the quality of his own defense
amounted to a denial of ‘effective assistance of counsel.’ ” Faretta, 422
U.S. at 834 n.46.
10570                   COOK v. SCHRIRO
therefore, the trial court’s rejection of that argument was not
contrary to, or an unreasonable application of Faretta. As
noted by the district court, we rejected Cook’s argument that
the trial court has a duty to inquire into a defendant’s relation-
ship with counsel when he invokes the right of self-
representation in United States v. Robinson, 913 F.2d 712,
716 (9th Cir. 1990). In that case, we concluded that a district
court only has a duty to inquire into the relationship between
defendant and counsel “once a defendant has made a motion
or request for substitute counsel.” Id. In addition, we noted
that a defendant’s disagreement with counsel over the
defenses to pursue does not create the need for further inquiry
into the attorney-client relationship or to offer new counsel
sua sponte. Id. We held that “a criminal defendant may be
asked to choose between waiver and another course of action,
so long as the course of action offered is not constitutionally
offensive.” Id. at 717.

   In this case, like in Robinson, Cook never made a motion
for substitute counsel. Although Cook stated that he did not
want pre-trial counsel appointed as advisory counsel, he indi-
cated that it was because of the defenses he wanted to
advance at trial. When the trial court noted that it could not
appoint the attorney Cook requested as his advisory counsel,
and offered a local alternative, Cook rejected that option and
accepted his previously appointed counsel as advisory coun-
sel.

   [3] The trial court then conducted a “probing and thorough”
colloquy before finding Cook’s waiver of his right to counsel
was knowing, intelligent, and voluntary, satisfying its obliga-
tions under Faretta. See Moran v. Godinez, 57 F.3d 690, 699
(9th Cir. 1994), overruled on other grounds by Lockyer v.
Andrade, 538 U.S. 63, 75-76 (2003). The district court and
the state trial court properly distinguished the cases cited by
Cook because he neither provided notice of ineffective assis-
tance nor moved for substitute counsel. See Schell v. Witek,
218 F.3d 1017, 1024-25 (9th Cir. 2000) (en banc) (motion for
                       COOK v. SCHRIRO                    10571
substitute counsel never addressed); Crandell v. Bunnell, 25
F.3d 754, 754-55 (9th Cir. 1994) (per curiam) (defendant
informed the court that he had not seen counsel for two
months); United States v. Padilla, 819 F.2d 952, 955-56 (10th
Cir. 1987) (rejecting involuntariness argument where attor-
neys would not cooperate in presenting defendant’s preferred
defense). Therefore, the trial court’s determination that
Cook’s decision to represent himself was voluntary was not
contrary to or an unreasonable application of Faretta, and
Cook is not entitled to habeas relief.

II. Matzke’s plea agreement and the truthfulness of
Matzke’s testimony.

   Cook contends that his right to a fair trial under the Due
Process Clause was violated because Matzke’s testimony was
coerced by Matzke’s plea agreement. The agreement required
that Matzke “agree to be interviewed without the presence of
defense counsel” and that he “agree to testify, if requested, at
any criminal proceedings brought by the State of Arizona
against Daniel Wayne Cook.” The agreement also required
that

    Matzke will, during such interviews and during such
    testimony, provide truthful responses to any ques-
    tions put to him and will not knowingly make any
    false or misleading statements. The making by John
    Eugene Matzke of two or more statements during
    such testimony or interviews which are inconsistent,
    so that at least one of them must be false, will be
    considered a violation of th[e] Agreement without
    the State[’s] being required to establish which state-
    ment was false.

(Emphasis added.) Matzke testified at the PCR hearing that he
believed the agreement required him to testify consistently
with his initial videotaped confession.
10572                        COOK v. SCHRIRO
   Matzke also testified at the PCR hearing that his testimony
at trial was truthful. The trial court found that Matzke testified
truthfully, and there was no evidence of perjured testimony as
a result of the plea agreement. The district court agreed with
the state trial court’s analysis of the case law and found that
there is no Supreme Court case law establishing that consis-
tency clauses in plea agreements violate due process. In addi-
tion, the district court also found that there was no evidence
that Matzke’s testimony was false.

   [4] We agree that there is no Supreme Court case law
establishing that consistency clauses violate due process or
any other constitutional provision. Because it is an open ques-
tion in the Supreme Court’s jurisprudence, we cannot say
“that the state court ‘unreasonably applied clearly established
Federal law’ ” by rejecting Cook’s claim based on the consis-
tency agreement. Carey v. Musladin, ___ U.S. ___, 127 S. Ct.
649, 654 (2006).

   Although the Supreme Court has held that the knowing use
of perjured testimony violates the due process clause, there is
no real evidence that Matzke’s testimony was false in this case.8
  8
   In Mooney v. Holohan, 294 U.S. 103, 112 (1935) (per curiam), the
Supreme Court stated:
      [W]e are unable to approve a narrow view of the requirement of
      due process. That requirement, in safeguarding the liberty of the
      citizen against deprivation through the action of the State,
      embodies the fundamental conceptions of justice which lie at the
      base of our civil and political institutions. Hebert v. Louisiana,
      272 U.S. 312, 316[-17 (1926)]. It is a requirement that cannot be
      deemed to be satisfied by mere notice and hearing if a State has
      contrived a conviction through the pretense of a trial which in
      truth is but used as a means of depriving a defendant of liberty
      through a deliberate deception of court and jury by the presenta-
      tion of testimony known to be perjured. Such a contrivance by a
      State to procure the conviction and imprisonment of a defendant
      is as inconsistent with the rudimentary demands of justice as is
      the obtaining of a like result by intimidation.
                            COOK v. SCHRIRO                          10573
Matzke reaffirmed the truthfulness of his testimony at the
PCR hearing. Although Matzke felt he was still bound by the
terms of his agreement to testify consistently, Cook did not
produce any witnesses or other evidence that the state know-
ingly used perjured testimony from Matzke or that Matzke’s
account was false. Giving due deference to the state trial
court’s factual findings, there was simply no perjured testi-
mony or deliberate deception to support Cook’s claimed due
process violation. See Allen v. Woodford, 395 F.3d 979, 995
(9th Cir. 2005) (rejecting due process claim where petitioner
failed to establish that testimony was false). As a result, Cook
is not entitled to relief on his claim that Matzke’s testimony
was false because he has not shown falsity, and therefore prej-
udice from the testimony. See Morris v. Ylst, 447 F.3d 735,
745-46 (9th Cir. 2006) (discussing need to show false testi-
mony was prejudicial to obtain habeas relief).

III.   The prosecutor’s rebuttal argument.

   Cook argues that the prosecutor violated his right to remain
silent and right to not testify against himself by referring to
Cook’s Miranda invocation and his failure to testify. Cook
challenges four types of statements made by the prosecutor:

The Supreme Court held in Pyle v. Kansas, 317 U.S. 213, 214-16 (1942),
that allegations that the State intimidated or coerced perjured testimony
from the witnesses against him stated a potential claim for habeas relief
under the Due Process Clause, citing Mooney. Cases following Mooney
establish that due process is violated if the State knowingly uses perjured
testimony or deliberately deceives the court. See Giglio v. United States,
405 U.S. 150, 153 (1972) (witness and the prosecutor stated that there was
no plea deal when there was a lenient plea agreement); Miller v. Pate, 385
U.S. 1, 3-4, 6 (1967) (prosecutor had expert testify that substance on
defendant’s shorts was blood when it was paint); Alcorta v. Texas, 355
U.S. 28, 30-32 (1957) (per curiam) (prosecutor told witness not to volun-
teer that he had a sexual relationship with the defendant’s wife and witness
testified he was not sexually involved with the wife).
10574                  COOK v. SCHRIRO
    1. Never once was Terry Holt told by this man where
    he was. Never once does Dan Cook, ladies and gen-
    tlemen say I wasn’t there because I was at McDon-
    ald’s in Kingman or out of state or somewhere. Why
    was he never told where Dan Cook was? Was Dan
    Cook afraid of getting beaten again when Holt con-
    firmed that he raped a sixteen-year old rather than
    just reading it out of a newspaper report?

    2. And I’ll tell you, ladies and gentlemen, John
    Matzke doesn’t have anything to hide. This man
    does.

    How do we know that? Remember voir dire when
    we were selecting everybody? His left forearm has
    a tattoo of a dagger on it. He has covered that tattoo
    from the first day of the trial until today. He has had
    a large Band-Aid over that dagger. He covered that
    up. I suppose he didn’t want you to think that he
    does have violent tendencies. If you saw that dagger
    on his forearm you could suppose that he did have
    such so he covered it up.

    We wonder what else he covered up. But we don’t
    have to wonder long. We don’t have to wonder hard
    because he’s done a poor job of covering everything
    else up.

    3. When he says John Matzke is a liar, he is not.
    No man would underrated [sic] himself to the degree
    that he did not just with the murders but his lifestyle.
    He’s not a liar. He was there. He is one of the
    remaining people who are alive who were there. The
    other one sits at that table.

    There were only four people there at that time of the
    deaths; two of them are dead; one is in prison; one
    is the Defendant.
                       COOK v. SCHRIRO                   10575
    4. And what about the videotape. John Matzke
    made one and we heard continuous cross-
    examination of the detective about why the Defen-
    dant didn’t make one. He didn’t make one because
    he, the Defendant, was the one that cut off the inter-
    view. If he had made one, you would have had the
    statements we got to partying a little bit and things
    got out of hand. My roommate killed one and I killed
    the other. I killed Kevin. You would have heard the
    exact same statements.

The Arizona Supreme Court rejected Cook’s claim of error on
direct appeal, finding that the prosecutor’s comments were
not directed at Cook’s decision not to testify, and that the
comment about the videotape was invited by Cook’s cross-
examination and argument. Cook, 821 P.2d at 741-43. The
district court agreed that the comments were either comments
on the state of the evidence or invited by Cook’s arguments
and cross-examination. In addition, the district court found
that, if there was error, it was harmless under Brecht v.
Abrahamson, 507 U.S. 619, 631 (1993).

   Comment on the refusal to testify at trial violates a defen-
dant’s Fifth Amendment right against self-incrimination. See
Griffin v. California, 380 U.S. 609, 615 (1965) (holding “that
the Fifth Amendment . . . forbids either comment by the pros-
ecution on the accused’s silence or instructions by the court
that such silence is evidence of guilt.”). Also, a prosecutor’s
comment on a defendant’s post-Miranda silence violates the
Due Process Clause. See Doyle v. Ohio, 426 U.S. 610, 619
(1976) (“We hold that the use for impeachment purposes of
petitioners’ silence, at the time of arrest and after receiving
Miranda warnings, violated the Due Process Clause of the
Fourteenth Amendment.”). The Supreme Court, however,
concluded that Griffin error did not mandate automatic rever-
sal if it was harmless. Chapman v. California, 386 U.S. 18,
22 (1967); see also United States v. Hasting, 461 U.S. 499,
509 (1983) (holding that Chapman mandates harmless error
10576                   COOK v. SCHRIRO
analysis of Griffin error). In Brecht, the Supreme Court held
that Doyle error does not entitle a petitioner to habeas corpus
relief unless it “ ‘had substantial and injurious effect or influ-
ence in determining the jury’s verdict.’ ” 507 U.S. at 622
(quoting Kotteakos v. United States, 328 U.S. 750, 776
(1946)).

   The Supreme Court concluded in United States v. Robin-
son, 485 U.S. 25, 32 (1988), that, “where . . . the prosecutor’s
reference to the defendant’s opportunity to testify is a fair
response to a claim made by defendant or his counsel, we
think there is no violation of the privilege.” In Robinson, the
defendant’s trial counsel “charged that the Government had
unfairly denied respondent the opportunity to explain his
actions” several times, and “concluded by informing the jury
that respondent was not required to testify, and that although
it would be natural to draw an adverse inference from respon-
dent’s failure to take the stand, the jury could not and should
not do so.” Id. at 27-28. The prosecutor then commented on
the insurance fraud defendant’s prior statements to investiga-
tors before saying, “[h]e could have taken the stand and
explained it to you, anything he wanted to. The United States
of America has given him, throughout, the opportunity to
explain.” Id. at 28. The Supreme Court held “that the prosecu-
tor’s statement that respondent could have explained to the
jury his story did not in the light of the comments by defense
counsel infringe upon [the defendant]’s Fifth Amendment
rights.” Id. at 31.

  A.    The comment about Cook’s conversations with Holt.

   The Arizona Supreme Court and the district court charac-
terized the first argument about Cook’s conversations with
Holt as commentary on the evidence. Cook, 821 P.2d at 742.
Holt testified that he talked with Cook almost every day and
acted as a jailhouse lawyer for Cook. Holt also testified that
Matzke told him that Cook was not at the apartment during
the murders. On cross-examination, Holt testified that Cook
                           COOK v. SCHRIRO                         10577
had an alibi defense, but that Cook never told Holt where he
was.

   [5] Prosecutors may comment on the failure of the defense
to produce evidence to support an affirmative defense so long
as it does not directly comment on the defendant’s failure to
testify. See Lockett v. Ohio, 438 U.S. 586, 595 (1978) (allow-
ing comments concerning opportunity to call witnesses where
defense focused on potential testimony).9 In this case, the
prosecutor’s comment was aimed at attacking the credibility
of Holt’s testimony concerning the believability of Cook’s
alibi defense. At most, the prosecutor’s comment is a refer-
ence to Cook’s statements to Holt while in jail together, not
a direct comment on Cook’s failure to testify. See Sims v.
Brown, 425 F.3d 560, 589 (9th Cir. 2005) (no violation from
questioning about defendant’s hearsay statements to a wit-
ness). The Arizona Supreme Court’s interpretation of this
comment was not objectively unreasonable; therefore, there
was no Griffin error.

  B.    The comments concerning Cook’s tattoos.

   [6] In addition, the Arizona Supreme Court considered the
prosecutor’s comment on Cook’s bandage covering a dagger
tattoo to be a rhetorical device rather than a comment “calcu-
lated to draw the jury’s attention” to the fact that Cook did not
testify. State v. Cook, 821 P.2d at 742. Cook implied during
his closing argument that Matzke and Watkins tried to cover
up the murders, arguing that Watkins quit his job, disap-
  9
    See also United States v. Mares, 940 F.2d 455, 461 (9th Cir. 1991)
(“The prosecutor may comment on the defendant’s failure to present
exculpatory evidence, provided that the comments do not call attention to
the defendant’s own failure to testify.”); United States v. Savarese, 649
F.2d 83, 87 (1st Cir. 1981) (“However, defendant chose to call witnesses
and put forth an alibi. Having done so, he had no right to expect the gov-
ernment to refrain from commenting on the quality of his alibi witnesses
or from attacking the weak evidentiary foundation on which the alibi rest-
ed.”).
10578                   COOK v. SCHRIRO
peared, and helped Matzke dispose of the bodies. The prose-
cutor’s comment was a response to Cook’s argument that
Matzke had a motive to lie and a comment on readily observ-
able facts in the courtroom that did not deprive Cook of a fair
trial. See Darden v. Wainwright, 477 U.S. 168, 181 (1986)
(argument that did not manipulate or misstate evidence or
implicate other specific rights and was invited by or respon-
sive to the opening summation of the defense of the defendant
did not deprive defendant of a fair trial). Read objectively, the
prosecutor’s comment was not “manifestly intended to call
attention to the defendant’s failure to testify, or is of such a
character that the jury would naturally and necessarily take it
to be a comment on the failure to testify.” Lincoln v. Sunn,
807 F.2d 805, 809 (9th Cir. 1987). Therefore, the state court’s
factual finding that this comment was rhetorical is supported
by the record and objectively reasonable.

  C. The prosecutor’s comments about Cook’s presence at
  the crime scene.

   When evaluating the third group of comments, the district
court ruled that the comment arguing that Matzke’s eyewit-
ness testimony was accurate was not intended to call attention
to Cook’s failure to testify, and if there was error, it was
harmless. Because neither the Arizona Supreme Court nor the
state trial court addressed these comments, we review the dis-
trict court’s decision de novo. See Himes v. Thompson, 336
F.3d 848, 852-53 (9th Cir. 2003) (noting this court conducts
an “independent review of the record” where there is no rea-
soned state court decision on an issue). Assuming, without
deciding, that the comment was Griffin error, we agree with
the district court that any error was harmless.

  [7] The Supreme Court held that Griffin error is subject to
harmless error analysis in Chapman, 386 U.S. at 22. In Ander-
son v. Nelson, 390 U.S. 523, 524 (1968) (per curiam), the
Court announced that Griffin error is reversible error only “in
a case where such comment is extensive, where an inference
                       COOK v. SCHRIRO                    10579
of guilt from silence is stressed to the jury as a basis of con-
viction, and where there is evidence that could have supported
acquittal.” See also Jeffries v. Blodgett, 988 F.2d 923, 934
(9th Cir. 1993) (as amended) (adopting that test). In this case,
only two references to Cook being the only eyewitness other
than Matzke were made in the prosecutor’s rebuttal argument.
Arguably, the prosecutor was not associating guilt from
Cook’s silence: rather, the prosecutor merely was emphasiz-
ing that Matzke had been an eyewitness.

   [8] In addition, the evidence of Cook’s guilt was over-
whelming. Although Cook introduced Holt’s testimony that
Matzke had confessed to both murders, the jury found Matzke
more credible, and there was no physical or other evidence to
impeach Matzke. Matzke testified, and the prosecution played
Matzke’s videotaped statement before the jury. The physical
and forensic evidence largely corroborated Matzke’s story,
and there was no physical or forensic evidence showing that
Matzke tortured or killed Swaney. In addition, Detective
Eaton testified that Cook had admitted to killing Swaney. The
jury deliberated for just over an hour before returning a guilty
verdict on both counts. Given the strong evidence of Cook’s
guilt, and the relatively minor effect of the two references in
the context of the prosecutor’s rebuttal argument, it is “clear
beyond a reasonable doubt that the jury would have returned
a verdict of guilty” even if the prosecution had not referred to
his failure to testify. Hasting, 461 U.S. at 511. Therefore, the
district court properly denied Cook’s habeas petition because
the prosecutor’s comment in context did not have a “substan-
tial and injurious effect or influence in determining the jury’s
verdict.” Brecht, 507 U.S. at 623 (internal quotation marks
omitted).

  D. The comment about the lack of a videotaped statement
  from Cook.

  The Arizona Supreme Court and the district court both
found that the prosecutor’s reference to the lack of a video-
10580                  COOK v. SCHRIRO
taped statement from Cook was a fair comment on the evi-
dence and a proper rebuttal to Cook’s denial that he confessed
to Detective Eaton. Cook, 821 P.2d at 743. In Cook’s opening
statement, he acknowledged that he made inculpatory state-
ments, but claimed that he was merely repeating what the
detective told him. Cook also volunteered that he invoked his
right to an attorney during his opening statement. Detective
Eaton testified that Cook made the following inculpatory
statements: “we got to partying; things got out of hand; now
two people are dead”; “my roommate killed one and I killed
the other”; when asked by Eaton which one Cook killed, he
replied, “Kevin”; and when asked if he was solely responsible
for Kevin’s death, Cook replied “Yeah, I killed Kevin.”
Through cross-examination of Detective Eaton, Cook
attempted to argue that he never made those statements, evi-
denced by the lack of a recording of his statements. Cook’s
questioning resulted in the following exchange:

    Cook: Sir, is it true that everybody else that was
    interviewed by you was recorded in some way other
    than myself?

    Eaton: We recorded Mr. Matzke. At the conclusion
    of my interview with you, you requested not to be
    recorded because you didn’t want to make a state-
    ment. We had the tape playing so we recorded Mr.
    Watkins.

    Cook: But you didn’t record me; is that correct?

    Eaton: That’s correct. You invoked your right to
    remain silent and I terminated the interview.

The trial court refused to declare a mistrial based on this
exchange, finding that Cook had invited error. After the court
denied Cook’s motion for a mistrial, Cook continued ques-
tioning Detective Eaton about his failure to videotape Cook’s
                         COOK v. SCHRIRO                    10581
side of the story. During Cook’s closing statement, Cook
returned to this evidence, arguing:

    I was — I was arrested on the morning of July 21,
    1987 at my apartment. I had been contacted by sev-
    eral police officers prior to my interview with Mr.
    Eaton. At no time did any of the officers ever state
    that I confessed to killing someone. They did, how-
    ever, state Mr. Matzke confessed to them about kill-
    ing two people.

The prosecutor responded in his rebuttal closing by arguing
that, if there had been a videotaped statement, the jury would
have seen the statements Detective Eaton testified that Cook
made. After Cook objected and moved for a mistrial based on
the prosecutor’s statements, the trial court denied the motion,
finding that Cook had invited the error by his questioning.

   [9] We have interpreted Doyle to allow prosecutors to com-
ment on post-Miranda silence in response to defense argu-
ments. See Bradford v. Stone, 594 F.2d 1294, 1296 (9th Cir.
1979) (per curiam), overruled on other grounds by Harris v.
Reed, 489 U.S. 255 (1989) (“By electing to dwell on the justi-
fications for petitioner’s silence after arrest, defense counsel
opened the door for the prosecutor to suggest contrary infer-
ences.”); see also United States v. Kennedy, 714 F.2d 968,
977 (9th Cir. 1983) (allowing invited comment that defendant
was “not like every other witness in the case” in response to
defense counsel’s argument).

   [10] In this case, the state trial court’s interpretation of the
comment as a fair comment on the evidence was a reasonable
one because Cook attempted to show that he had not made
any incriminating statements when he cross-examined Detec-
tive Eaton by asking why Cook’s alleged confession was not
videotaped. Furthermore, the state trial court’s decision that
the prosecutor’s comments were fair rebuttal was reasonable
because Cook argued again in his closing that the officers
10582                  COOK v. SCHRIRO
never stated that Cook confessed. The district court properly
denied Cook’s habeas petition on his Doyle claim.

IV. Withdrawal of a second-degree murder instruction.

   Cook objected to the trial court’s withdrawal of a second-
degree murder instruction, however, stating he wanted the
instruction because Matzke was given a second-degree mur-
der conviction under the terms of his plea bargain. The trial
court concluded that there was no evidence that the murder
was not premeditated and denied Cook’s request to give a
second-degree murder instruction. On direct appeal, the Ari-
zona Supreme Court affirmed the trial court’s finding that
“there was no basis for a jury to find that the murders were
committed without premeditation.” Cook, 821 P.2d at 750.
The district court agreed with the Arizona Supreme Court that
there was no evidence that would permit a rational trier of fact
to find that the murders were not premeditated.

   In Beck v. Alabama, 447 U.S. at 638, the Supreme Court
held that “if the unavailability of a lesser included offense
instruction enhances the risk of an unwarranted conviction,
Alabama is constitutionally prohibited from withdrawing that
option from the jury in a capital case.” The Supreme Court
found that an all-or-nothing approach to capital cases was
unfair if the evidence supported a lesser crime; stating that:

    [W]hen the evidence unquestionably establishes that
    the defendant is guilty of a serious, violent offense
    — but leaves some doubt with respect to an element
    that would justify conviction of a capital offense —
    the failure to give the jury the “third option” of con-
    victing on a lesser included offense would seem
    inevitably to enhance the risk of an unwarranted con-
    viction.

Id. at 637.
                        COOK v. SCHRIRO                    10583
   [11] In Hopper v. Evans, 456 U.S. 605, 611 (1982), the
Court stated that “due process requires that a lesser included
offense instruction be given only when the evidence warrants
such an instruction.” The defendant in Hopper “made it crys-
tal clear that he had killed the victim, that he intended to kill
him, and that he would do the same thing again in similar cir-
cumstances.” Id. at 612. As a result, “[t]he evidence not only
supported the claim that [he] intended to kill the victim, but
affirmatively negated any claim that he did not intend to kill
the victim. An instruction on the offense of unintentional kill-
ing during this robbery was therefore not warranted.” Id. at
613.

   [12] At trial, Cook denied the murders and claimed that he
had an alibi. Cook affirmatively disclaimed intoxication as a
defense prior to trial. Now, Cook argues that his statement
“we got to partying, things got out of hand, now two people
are dead” was evidence of heat of passion. There was no other
evidence introduced at trial, however, that the murders were
accidental or were committed in the heat of passion, nor did
Cook’s defenses suggest as much. Rather, the evidence dem-
onstrated that Cook planned to rob Ramos, tortured him, and
wanted Ramos killed at midnight, and then participated in
strangling Ramos. With Swaney, Cook barred Swaney’s exit,
took Swaney to see Ramos’s body, tortured and sodomized
Swaney, and then said, “this one’s mine” to Matzke before
strangling Swaney to death.

  [13] At the time the crimes were committed, Arizona
defined premeditation to mean:

    that the defendant acts with either the intention or
    the knowledge that he will kill another human being,
    when such intention or knowledge precedes the kill-
    ing by a length of time to permit reflection. [A]n act
    is not done with premeditation if it is the instant
    effect of a sudden quarrel or heat of passion.
10584                   COOK v. SCHRIRO
Ariz. Rev. Stat. § 13-1101(1) (1997). In Clabourne v. Lewis,
64 F.3d 1373, 1380 (9th Cir. 1995), we affirmed the Arizona
Supreme Court’s denial of a habeas petition where the peti-
tioner presented minimal evidence of intoxication and “[t]he
evidence that [he] acted with premeditation [was] overwhelm-
ing.” We concluded that “[t]o prove premeditation, the state
was required to show only that Clabourne had had time to
reflect after forming the intent to kill; any length of time
would have been sufficient, even if it was ‘as instantaneous
as [the time] it takes to form successive thoughts in the
mind.’ ” Id. (alteration in original) (quoting State v. Neal, 692
P.2d 272, 276 (Ariz. 1984)). Because we have similarly inter-
preted Beck and Hopper not to require a second-degree mur-
der instruction where evidence of premeditation is
overwhelming and the petitioner’s defenses are not directed at
negating premeditation, the Arizona Supreme Court’s ruling
on the issue was objectively reasonable. See Carriger v.
Lewis, 971 F.2d 329, 336 (9th Cir. 1992) (en banc) (“Further,
the record does not support such an instruction. The killer
bound Shaw, beat him over the head with a cast iron skillet
and a ring sizer, and then strangled him with a necktie. These
acts were premeditated and designed to cause death.”).
According to Cook’s defenses at trial, either he was not pres-
ent at the murders, or the murders proceeded as methodically
as Matzke described. Therefore, Cook is not entitled to relief.

V.     Procedurally defaulted claims.

  A.     Procedural background.

   Cook argues that he did not procedurally default the fol-
lowing substantive claims: 1) that Cook’s pre-trial counsel
was ineffective for failing to investigate mitigating evidence
(claim 3); 2) that the trial court erred in precluding evidence
of Cook’s intoxication during the guilt phase of his trial
(claim 7); 3) that the trial court erred in denying Cook’s
request for further mental health examination (claim 12); and
4) that the failure of the trial judge to recuse himself violated
                            COOK v. SCHRIRO                          10585
Cook’s right to a fair trial (claim 17). The state trial court
found during the PCR proceedings that Cook failed to raise a
colorable claim that his appellate counsel was ineffective
(PCR claim 9). After the denial of Cook’s post-conviction
relief petition, Cook moved for rehearing on the following
issues: 1) Cook’s decision to proceed pro se was not volun-
tary; 2) Matzke’s plea agreement tainted the fact-finding func-
tion of the court; 3) newly discovered evidence of Matzke’s
intoxication impeached his credibility; 4) the trial judge’s
refusal to recuse himself was unfair; 5) Cook’s entitlement to
a hearing on a felony murder theory; and 6) the court’s failure
to appoint counsel for sentencing.10 Cook’s petition for review
after the denial of the motion for reconsideration simply
stated: “Daniel Wayne Cook, through counsel and pursuant to
Rule 32.9 of the Arizona Rules of Criminal Procedure, peti-
tions the Arizona Supreme Court for review.”

   The district court ruled in its order dated September 17,
1999, that most of Cook’s claims were procedurally barred.
Regarding Cook’s ineffective assistance of counsel claim
(claim 3),11 the district court found that Cook failed to fairly
present it because he failed to preserve it in his motion for
rehearing. The district court found that Cook failed to present
the intoxication evidence at trial (claim 7) as a federal claim
on direct appeal, and therefore failed to alert the Arizona
Supreme Court that he was raising a federal claim. See Cook,
821 P.2d at 740-41 (relying on Arizona state cases exclu-
sively). The district court concluded that claim 12 — concern-
ing the trial court’s refusal to grant Cook’s motion for a
mental health evaluation prior to sentencing — was procedur-
  10
      Cook also moved for rehearing on the issue of access to the law
library. Cook did not pursue that claim in his federal habeas petition, how-
ever.
   11
      Cook does not appeal the district court’s conclusion that the trial
court’s refusal to grant continuances did not violate his right to due pro-
cess (claim 3(b)). Therefore, we deem that claim waived. Martinez, 951
F.2d at 1157.
10586                     COOK v. SCHRIRO
ally defaulted because Cook never raised the claim on direct
appeal or in his post-conviction relief petition. Finally, the
district court concluded that Cook failed to present his judicial
bias allegations (claim 17) as a federal claim; therefore it was
procedurally barred. The district court further found that Cook
failed to establish any cause and prejudice for the defaults.

  B.    Applicable law.

   [14] “Before a federal court may grant habeas relief to a
state prisoner, the prisoner must exhaust his remedies in state
court.” O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see
also Rose v. Palmateer, 395 F.3d 1108, 1110 (9th Cir. 2005)
(“Pursuant to 28 U.S.C. § 2254(b)(1)(A), a federal court may
not consider the merits of Rose’s Fifth Amendment claim
unless he has exhausted all available state court remedies.”).
“[E]xhaustion of state remedies requires that petitioners
‘fairly present’ federal claims to the state courts in order to
give the State the opportunity to pass upon and correct alleged
violations of its prisoners’ federal rights.” Duncan v. Henry,
513 U.S. 364, 365 (1995) (per curiam) (internal quotation
marks omitted). We may not “consider any federal-law chal-
lenge to a state-court decision unless the federal claim ‘was
either addressed by or properly presented to the state court
that rendered the decision we have been asked to review.’ ”
Howell v. Mississippi, 543 U.S. 440, 443 (2005) (per curiam)
(quoting Adams v. Robertson, 520 U.S. 83, 86 (1997) (per
curiam)).

   Federal courts “will not review a question of federal law
decided by a state court if the decision of that court rests on
a state law ground that is independent of the federal question
and adequate to support the judgment.” Coleman v. Thomp-
son, 501 U.S. 722, 729 (1991). “This rule applies whether the
state law ground is substantive or procedural.” Id.

    In all cases in which a state prisoner has defaulted
    his federal claims in state court pursuant to an inde-
                              COOK v. SCHRIRO                         10587
        pendent and adequate state procedural rule, federal
        habeas review of the claims is barred unless the pris-
        oner can demonstrate cause for the default and actual
        prejudice as a result of the alleged violation of fed-
        eral law, or demonstrate that failure to consider the
        claims will result in a fundamental miscarriage of
        justice.

Id. at 750. Where a state prisoner’s federal claim is waived or
precluded by violation of a state procedural rule, it is proce-
durally defaulted unless the prisoner can demonstrate cause
and prejudice. See id. at 732 (noting that “a habeas petitioner
who has failed to meet the State’s procedural requirements for
presenting his federal claims has deprived the state courts of
an opportunity to address those claims in the first instance”);
Wainwright v. Sykes, 433 U.S. 72, 87 (1977) (applying cause
and prejudice standard to contemporaneous objection rule).
Preclusion of issues for failure to present them at an earlier
proceeding under Arizona Rule of Criminal Procedure
32.2(a)(3)12 “are independent of federal law because they do
not depend upon a federal constitutional ruling on the merits.”
Stewart v. Smith, 536 U.S. 856, 860 (2002) (per curiam).

  C.       Cook procedurally defaulted his ineffective assistance
           of trial counsel claim (claim 3).

  [15] Cook’s claim that the amendment of Rule 32.9(c)
somehow excuses the failure of his post-conviction relief
counsel to preserve general ineffective assistance of trial
  12
    Prior to December 1, 1992, Arizona Rule of Criminal Procedure
32.2(a)(3) stated:
       (a). Preclusion. A petitioner will not be given relief under this
       rule based upon any ground:
       (3) Knowingly, voluntarily, and intelligently not raised at trial,
       on appeal, or in any previous collateral proceeding.
Arizona Rule of Criminal Procedure 32.2(a)(3) (1989) (amended 1992).
10588                   COOK v. SCHRIRO
counsel claims lacks merit because he failed to preserve any
ineffective assistance of trial counsel claim under the applica-
ble rule. Furthermore, he cannot demonstrate cause to excuse
the procedural default. Cook failed to raise ineffective assis-
tance of counsel on direct appeal. Cook plainly failed to pre-
serve a general ineffective assistance of trial counsel claim in
his motion for rehearing. Furthermore, Cook’s petition for
review failed to preserve any claims in addition to those pre-
served by the motion for rehearing.

  Prior to 1992, the Arizona Rule of Criminal Procedure 32.9
provided, in relevant part:

    a. Motion for Rehearing; Response; Reply. Any
    party aggrieved by a final decision of the trial court
    in these proceedings may, within 10 days after the
    ruling of the court, move the court for a rehearing
    setting forth in detail the grounds wherein it is
    believed the court erred. There shall be a response
    filed within 10 days.

    c. Petition for Review. Upon denial of a motion for
    rehearing, any party aggrieved may petition the
    appropriate Appellate Court for review of the actions
    of the trial court. The petition shall be filed with the
    clerk of the trial court and within 10 days after the
    denial of the motion for rehearing.

The changes ordered by the Arizona Supreme Court elimi-
nated the requirement of a detailed motion for rehearing —
making it optional. Instead, the amended rule made the peti-
tion for review into a detailed statement of the case and the
issues presented and added an explicit statement that
“[f]ailure to raise an issue in the petition or cross-petition for
review shall constitute a waiver of appellate review of that
issue.” The Arizona Supreme Court explicitly made the new
rule applicable to those defendants sentenced after December
1, 1992.
                         COOK v. SCHRIRO                    10589
   Prior to the amendments to Rule 32.9, the failure of the
petitioner to file a motion for rehearing setting forth in detail
the grounds for rehearing waived further review. See State v.
Gause, 541 P.2d 396, 397 (Ariz. 1975) (dismissing appeal
from denial of post-conviction relief under Rule 32.9(a),
where petitioner failed to file a petition for rehearing or a peti-
tion for review). When amending Rule 32.9(a) in 1992, the
Arizona Supreme Court explicitly stated that “[t]he attached
amendments shall be applicable to defendants sentenced after
December 1, 1992.” June 2, 1999, Ariz. Supreme Court Order
Amending Rule 32, Ariz. R. Crim. P. Furthermore, Cook’s
post-conviction relief counsel realized that the former Rule
32.9 governed the case and filed an unopposed motion for
rehearing to conform to the old rule. Accordingly, preclusion
for failure to preserve the issue on the motion for rehearing
was proper under Arizona Rule of Criminal Procedure
32.2(a)(3) and Arizona Rule of Criminal Procedure 32.9(c).
As a result, Cook must demonstrate cause and prejudice in
order to excuse his procedural default. Coleman, 501 U.S. at
750.

   Ordinarily, “cause” to excuse a default exists if the peti-
tioner “can show that some objective factor external to the
defense impeded counsel’s efforts to comply with the State’s
procedural rule.” Murray v. Carrier, 477 U.S. 478, 488
(1986). Examples of sufficient causes include “a showing that
the factual or legal basis for a claim was not reasonably avail-
able to counsel,” or “that ‘some interference by officials’
made compliance impracticable.” Id. (citations omitted)
(quoting Brown v. Allen, 344 U.S. 443, 486 (1953)). Ineffec-
tive assistance of counsel may be cause to excuse a default
only if the procedural default was the result of an independent
constitutional violation. See Edwards v. Carpenter, 529 U.S.
446, 451 (2000) (“Not just any deficiency in counsel’s perfor-
mance will do, however; the assistance must have been so
ineffective as to violate the Federal Constitution.”). Put
another way, “[s]o long as a defendant is represented by coun-
sel whose performance is not constitutionally ineffective
10590                   COOK v. SCHRIRO
under the standard established in Strickland v. Washington,
[the federal courts] discern no inequity in requiring him to
bear the risk of attorney error that results in a procedural
default.” Murray, 477 U.S. at 488.

   [16] In this case, Cook’s post-conviction relief counsel
failed to preserve his ineffective assistance of trial counsel
claims in the motion for rehearing or in the subsequent peti-
tion for review. Thus, post-conviction petition counsel failed
to “fairly present” the ineffective assistance of pre-trial coun-
sel claim to the Arizona Supreme Court. Castille v. Peoples,
489 U.S. 346, 351 (1989). Cook attempts to argue that inef-
fective assistance of appellate counsel excuses the procedural
default. There is no constitutional right to counsel, however,
in state collateral proceedings after exhaustion of direct
review. Pennsylvania v. Finley, 481 U.S. 551, 556 (1987)
(“[I]t is the source of that right to a lawyer’s assistance, com-
bined with the nature of the proceedings, that controls the
constitutional question. In this case, respondent’s access to a
lawyer is the result of the State’s decision, not the command
of the United States Constitution.”). Under Arizona law, a
defendant is only entitled to counsel through the disposition
of his or her first post-conviction petition. State v. Smith, 910
P.2d 1, 4 (Ariz. 1996) (“After counsel or the pro per defen-
dant submits the post-conviction petition to the court and the
trial court makes its required review and disposition, coun-
sel’s obligations are at an end.”). Because Cook had no con-
stitutional right to counsel at the motion for rehearing stage,
any errors by his counsel could not constitute cause to excuse
the default. See Coleman, 501 U.S. at 752-53 (“Consequently,
a petitioner cannot claim constitutionally ineffective assis-
tance of counsel in [state post-conviction] proceedings.”);
Harris v. Vasquez, 949 F.2d 1497, 1513-14 (9th Cir. 1990)
(“Because [the petitioner] has no constitutional right to coun-
sel in his earlier habeas proceedings, no error by his habeas
counsel could constitute a sixth amendment violation or,
                           COOK v. SCHRIRO                         10591
therefore, cause . . . .” (citation omitted)). Therefore, Cook
cannot show cause to excuse his procedural default.13

   Cook may also qualify for relief from his procedural
default if he can show that the procedural default would result
in a “fundamental miscarriage of justice.” Schlup v. Delo, 513
U.S. 298, 321 (1995). To qualify for the “fundamental miscar-
riage of justice” exception to the procedural default rule, how-
ever, Cook must show that a constitutional violation has
“probably resulted” in the conviction when he was “actually
innocent” of the offense. Murray, 477 U.S. at 496. “To be
credible, such a claim requires petitioner to support his allega-
tions of constitutional error with new reliable evidence —
whether it be exculpatory scientific evidence, trustworthy eye-
witness accounts, or critical physical evidence — that was not
presented at trial.” Schlup, 513 U.S. at 324.

   [17] In this case, although Cook presented evidence con-
cerning his pre-trial counsel’s reputation in the community, he
did not present any evidence that there were actual indepen-
dent witnesses to support an alibi defense, or that shows that
he did not participate in the murders of Ramos and Swaney.
As a result, Cook has not shown that pre-trial counsel’s inef-
fective assistance of counsel, if any, resulted in a fundamental
miscarriage of justice because he is actually innocent. There-
fore, Cook cannot excuse his procedural default and the dis-
trict court properly found that his ineffective assistance of
trial counsel claim was barred from review.
  13
    Because Cook cannot show cause, we need not consider whether he
suffered actual prejudice. Engle v. Isaac, 456 U.S. 107, 134 n.43 (1982)
(“Since we conclude that these respondents lacked cause for their default,
we do not consider whether they also suffered actual prejudice.”).
10592                   COOK v. SCHRIRO
  D.    Cook procedurally defaulted his claim that precluding
        evidence of intoxication violated his constitutional
        rights (claim 7).

   On direct appeal, Cook relied exclusively on state law in
arguing his claim that voluntary intoxication negated his pre-
meditation for the murder of Ramos. First, the Arizona
Supreme Court found that Cook waived this claim by failing
to object at trial. Cook, 821 P.2d at 741. Then, the Arizona
Supreme Court ruled that Cook failed to establish fundamen-
tal error, relying entirely on state law. Id. at 740-41. Under
Arizona law, evidence of intoxication alone cannot negate
knowledge for the purposes of finding premeditation for first-
degree murder. See State v. Schurz, 859 P.2d 156, 164-65
(Ariz. 1993) (collecting cases approving of refusal to consider
voluntary intoxication under a knowing or knowingly first-
degree murder theory); Neal, 692 P.2d at 277 (“[E]ven assum-
ing Neal was intoxicated and the jury believed Dr. Biegal’s
testimony, the jury could still properly convict him of first
degree murder if they believed he ‘knowingly’ caused the vic-
tim’s death.”).

   “A litigant wishing to raise a federal issue can easily indi-
cate the federal law basis for his claim in a state-court petition
or brief . . . by citing in conjunction with the claim the federal
source of law on which he relies or a case deciding such a
claim on federal grounds, or by simply labeling the claim
‘federal.’ ” Baldwin v. Reese, 541 U.S. 27, 32 (2004). If a
petitioner fails to properly present a federal claim to the state
supreme court, and the state supreme court decides the issue
on “adequate and independent” state law grounds, federal
courts are barred from reviewing the claim. Howell, 543 U.S.
at 442-43 (dismissing writ of certiorari as improvidently
granted because petitioner’s failure to present a federal claim
to the state supreme court “prevents us from reaching peti-
tioner’s constitutional claim.”).

  Here, Cook waived this claim by failing to object at trial
and then procedurally defaulted the claim by failing to fairly
                        COOK v. SCHRIRO                    10593
present it as a federal claim on direct appeal. See Coleman,
501 U.S. at 729 (failure to present federal claim); Wainwright,
433 U.S. at 87 (failure to object at trial). Exclusive citation to
Arizona state court cases in a counseled petition for review is
not sufficient to give a “fair opportunity” to the Arizona
Supreme Court to decide a federal claim. Peterson v. Lam-
pert, 319 F.3d 1153, 1159 (en banc) (9th Cir. 2003). Because
Cook failed to raise an ineffective assistance of appellate
counsel claim on this issue, and cannot raise an ineffective
assistance of counsel claim as to his own performance under
Faretta, 422 U.S. 834 n.46, he cannot show cause to excuse
his defaults. See Murray, 477 U.S. at 488.

   [18] As noted above, evidence of voluntary intoxication
alone cannot negate premeditation under Arizona law. See
State v. Lavers, 814 P.2d 333, 346 (Ariz. 1991) (approving of
State’s strategy to charge “knowingly” rather than “intention-
ally” to preclude introduction of evidence of defendant’s
intoxication). Therefore, Cook cannot establish actual inno-
cence based on voluntary intoxication. Furthermore, there is
no new evidence to support an actual innocence claim. Sch-
lup, 513 U.S. at 324. Therefore, the district court properly
found that Cook procedurally defaulted his claim that the pre-
clusion of voluntary intoxication evidence was erroneous.

  E.   Cook procedurally defaulted his claim that the trial
       court erred by failing to order an additional mental
       health examination prior to sentencing (claim 12).

   [19] Cook failed to present the issue of an additional mental
health examination prior to sentencing on direct appeal or in
his post-conviction relief proceedings. Like his other proce-
durally defaulted claims, Cook cannot establish cause to
excuse the default by showing a non-defaulted claim of inef-
fective assistance of appellate counsel. Murray, 477 U.S. at
488. In addition, Cook did not introduce any new evidence to
support a finding that there would be a fundamental miscar-
riage of justice because he was legally insane at the time of
10594                        COOK v. SCHRIRO
the murders, or that his mental state was sufficient to over-
come the aggravating factors in his case. See Sawyer v. Whit-
ley, 505 U.S. 333, 350 (1992) (requiring petitioner “to show
by clear and convincing evidence that but for constitutional
error at his sentencing hearing, no reasonable juror would
have found him eligible for the death penalty under [state]
law”). Therefore, the district court properly found that Cook
procedurally defaulted this claim.

  F.    Cook’s claim that the trial judge should have recused
        himself is barred (claim 17).

   On his claim that the trial judge was biased and should
have recused himself, Cook argues that he fairly presented the
claim to the Arizona Supreme Court through his petition for
special action. The district court found that Cook relied exclu-
sively on Arizona law when arguing that the trial judge should
have recused himself. The district court found that the federal
claim was technically exhausted, but that the state courts
would find that the claim was precluded under Arizona Rule
of Criminal Procedure 32.2(a)(3).

   In Cook’s recusal motion during the PCR proceedings, he
only cited Arizona state cases and Arizona Rule of Criminal
Procedure 10.114 and 32.4(e).15 After an independent judge
denied the recusal motion, Cook sought special relief, citing
the same rules and Rule 81, Canon 3(c) of the Arizona Rules
of Judicial Conduct, which states that a judge should disqual-
ify himself if his impartiality may be reasonably questioned
or where the judge has a personal knowledge of disputed evi-
  14
      Arizona Rule of Criminal Procedure 10.1 states: “In any criminal case
prior to the commencement of a hearing or trial the state or any defendant
shall be entitled to a change of judge if a fair and impartial hearing or trial
cannot be had by reason of the interest or prejudice of the assigned judge.”
   15
      Arizona Rule of Criminal Procedure 32.4(e) provides: “Assignment of
Judge. The proceeding shall be assigned to the sentencing judge where
possible. If it appears that his testimony will be relevant, he shall transfer
the case to another judge.”
                       COOK v. SCHRIRO                    10595
dentiary facts concerning the proceeding. In his motion for
rehearing, Cook once again relied exclusively on Arizona
state law in arguing that the trial judge was biased and should
be recused.

   Cook failed to “indicate a federal law basis for his claim in
a state-court petition or brief” as required by Baldwin, 541
U.S. 32. See Peterson, 319 F.3d at 1159. Mere invocations of
due process do not meet the “minimal requirement that it must
be clear that a federal claim was presented.” Adams, 520 U.S.
at 89 n.3. Even if Arizona’s standards for determining judicial
bias are “somewhat similar” to the federal standard requiring
a direct, personal, substantial, pecuniary interest in Tumey v.
Ohio, 273 U.S. 510, 522 (1927), that is insufficient to raise a
federal claim. See Duncan, 513 U.S. at 366 (“[M]ere similar-
ity of claims is insufficient to exhaust.”). Failure to exhaust
the claim bars federal review. See Fields v. Waddington, 401
F.3d 1018, 1020-21 (9th Cir. 2005) (discussing standards for
fairly presenting a federal claim). Furthermore, the district
court was correct in concluding that the state courts would
find the federal claim precluded under Arizona Rule of Crimi-
nal Procedure 32.2. See Peterson, 319 F.3d at 1161 (noting
failure to fairly present federal claim coupled with time limits
for filing petition for review procedurally defaults the claim,
requiring a showing of cause and prejudice).

   [20] As with Cook’s other claims, he has not shown cause
to excuse his procedural default. Nor has Cook established
that the default results in any fundamental miscarriage of jus-
tice. Therefore, the district court properly found that Cook’s
claim concerning the bias of the trial judge was procedurally
defaulted.

VI.   Sentencing consideration claims.

   The Arizona Supreme Court examined the record and con-
cluded that:
10596                   COOK v. SCHRIRO
    Moreover, after conducting our independent review
    of the record, we do not believe that Cook’s mental
    history demands or even justifies leniency, espe-
    cially when balanced against the aggravating factors
    found to be present in this case.

Cook, 821 P.2d at 755. “AEDPA also requires federal habeas
courts to presume the correctness of state courts’ factual find-
ings unless applicants rebut this presumption with ‘clear and
convincing evidence.’ ” Schriro v. Landrigan, ___ U.S. ___,
127 S. Ct. 1933, 1939-40 (2007) (quoting 28 U.S.C.
§ 2254(e)(1)). “Under AEDPA, we must do more than find
the statement ambiguous — we would have to conclude that
the Arizona Supreme Court was objectively unreasonable in
concluding the sentencing court did, in fact review all the
proffered mitigating evidence.” Lopez v. Schriro, 491 F.3d
1029, 1037-38 (9th Cir. 2007), petition for cert. filed, 76
U.S.L.W. 3289 (U.S. Nov. 19, 2007) (No. 07-683).

   [21] The Arizona Supreme Court’s analysis is precisely
what the Supreme Court requires — consideration of the char-
acter and record of the individual and the circumstances of the
offense. See Woodson v. N. Carolina, 428 U.S. 280, 304
(1989) (requiring “consideration of the character and record
of the individual offender and the circumstances of the partic-
ular offense as a constitutionally indispensable part of the pro-
cess of inflicting the penalty of death”). The record contains
extensive testimony concerning intoxication at the post-
conviction relief hearing and that supports the rejection of
Cook’s argument.

   [22] The record also contains psychological reports dis-
cussing Cook’s prior history of mental illness that show that
Cook was able to appreciate the wrongfulness of his actions
at the time of the murders. None of the psychiatric or psycho-
logical reports state that Cook did not understand what he was
doing or could not conform his activity to the confines of the
law at the time of the murders. The Arizona Supreme Court’s
                        COOK v. SCHRIRO                    10597
conclusion that the mitigating factors did not outweigh the
aggravating factors after considering both intoxication and
Cook’s psychological history as mitigation was not objec-
tively unreasonable on this record. See Lopez, 491 F.3d at
1037-38 (concluding that where the state court clearly consid-
ered proper mitigating factors, this court could not reverse
under AEDPA). Therefore, the district court properly denied
Cook’s claim based on failure to consider mitigating factors.

                       CONCLUSION

   Cook’s decision to represent himself was knowing, intelli-
gent, and voluntary as required by Faretta. Matzke’s plea
agreement did not taint Cook’s trial with perjured or untruth-
ful testimony; therefore it did not violate Cook’s due process
right to a fair trial as clearly established by Supreme Court
precedent. The prosecutor’s comments in rebuttal were not
comments on Cook’s silence: they were fair comments on the
evidence or fair rebuttals to Cook’s arguments and defenses,
and in the context of this trial were harmless.

   There was no evidence to warrant a second-degree murder
instruction, so the trial court properly refused to give a lesser
included offense instruction. The sentencing court properly
considered Cook’s intoxication and mental history and con-
cluded that they did not outweigh the aggravating factors in
this case. Finally, the district court properly found Cook’s
remaining claims to be procedurally defaulted.

  AFFIRMED.
