                                              Volume 1 of 2

                FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

FRED LAWRENCE ROBINSON,                 No. 05-99007
            Petitioner-Appellant,
              v.                          D.C. No.
                                        CV-96-00669-JAT
DORA B. SCHRIRO, Director,
                                           OPINION
            Respondent-Appellee.
                                    
       Appeal from the United States District Court
                for the District of Arizona
       James A. Teilborg, District Judge, Presiding

               Argued December 6, 2007
              Submitted February 19, 2010
                San Francisco, California

                 Filed February 22, 2010

     Before: Betty B. Fletcher, Marsha S. Berzon, and
          Johnnie B. Rawlinson, Circuit Judges.

              Opinion by Judge B. Fletcher;
               Dissent by Judge Rawlinson




                          2711
2716                  ROBINSON v. SCHRIRO



  .


                          COUNSEL

Patrick E. McGillicuddy, Phoenix, Arizona, for the petitioner-
appellant.

Terry Goddard, Attorney General, Kent Cattani, Chief Coun-
sel, Capital Litigation Section, J.D. Nielsen, Assistant Attor-
ney General, and Jeffrey A. Zick (argued), Assistant Attorney
General, Capital Litigation Section, Phoenix, Arizona, for the
respondent-appellee.


                           OPINION

B. FLETCHER, Circuit Judge:

   Petitioner Fred Lawrence Robinson appeals the district
court’s denial of his Petition for Writ of Habeas Corpus. Rob-
inson faces a death sentence imposed by the state of Arizona
for the murder of Sterleen Hill. Robinson sought relief from
his sentence and conviction on ten grounds in his petition to
the district court. Following denial of the petition, the district
court granted a certificate of appealability as to four issues,
and we subsequently certified an additional five issues for
appeal. We have jurisdiction over this pre-AEDPA appeal
pursuant to 28 U.S.C. § 1291 and reverse in part and remand
in part the district court’s determination. We hold that the Ari-
                        ROBINSON v. SCHRIRO                      2717
zona courts arbitrarily found that Robinson committed the
murder in an especially cruel, heinous, or depraved manner in
violation of the Eighth Amendment and that Robinson
received ineffective assistance of counsel at sentencing in vio-
lation of the Sixth Amendment. We reverse the district court’s
denial of those claims and remand to the district court for
issuance of a writ of habeas corpus striking the application of
the especially cruel, heinous, or depraved aggravating factor
to Robinson and ordering a new sentencing proceeding. We
affirm the district court’s denial of Robinson’s remaining
claims in a memorandum disposition filed concurrently with
this opinion.

          I.   Factual and Procedural Background

                         A.    The Crime1

  At around 6 p.m. on June 8, 1987, Robinson drove from
Banning, California, to Yuma, Arizona with two friends, The-
odore Washington (“Washington”) and Jimmy Lee Mathers
(“Mathers”). Earlier that afternoon, Robinson told his son,
Andre, that the three men were going to Yuma to see if Susan
Hill (“Susan”), Robinson’s common law wife, was there. As
Andre looked on, the three men loaded two handguns and a
shot gun into Robinson’s car.

   At around 11:30 p.m., Sterleen Hill (“Sterleen”), Susan’s
stepmother, heard sounds outside the Hills’ house in Yuma.
She told her son LeSean to investigate, but he saw no one. At
approximately 11:45, someone knocked on the door. When
LeSean opened it, a man identified himself as James and told
LeSean that he had some money for Ralph Hill (“Ralph”),
Susan and LeSean’s father. When LeSean opened the door to
accept the money, the man, whom LeSean believed to be a
  1
    Except as noted, we base our recitation of the facts on the Arizona
Supreme Court opinion upholding Robinson’s conviction and sentence on
direct appeal. See State v. Robinson, 796 P.2d 853 (Ariz. 1990).
2718                  ROBINSON v. SCHRIRO
black man, attempted to grab him. LeSean escaped the man’s
grasp, fled the house, and ran to a neighbor’s house to call the
sheriff.

   As LeSean fled his house, two people entered the home.
One of these was later identified by Ralph as a black man
with a red bandana who was not Robinson. Ralph heard the
intruders say that they were narcotics agents and that they
wanted the drugs and the money. The intruders forced Ster-
leen and Ralph to lie face-down on the floor of their bedroom
and bound their hands and feet with electrical cords and neck-
ties. The intruders repeatedly asked where the money was and
searched through the bedroom closet and dresser. When Ster-
leen asked that her feet be covered up, the Hills were both
shot in the back with a shotgun. Ralph survived with severe
injuries, but Sterleen died. A girl who lived across the street
heard what sounded like gunshots and then heard footsteps on
the gravel outside, muffled voices say “hurry up,” a car door
slam, and a car driving away.

   Shortly after the shootings, Deputy Koteles, who was
responding to LeSean’s emergency call, saw Robinson driv-
ing near the Hills’ house. When Robinson passed Koteles,
Robinson smiled and accelerated as he passed. Robinson was
apprehended in his car shortly thereafter on a road near the
Hills’ home. Deputy Koteles found several bullets in Robin-
son’s pants pockets. Mathers was apprehended the next day
after Susan Hill, who had heard about the shooting and was
on her way to Yuma after stopping in Banning, saw Mathers
walking along the road in the direction of Banning. Washing-
ton, who had called his girlfriend at 2:00 a.m. on June 9th to
tell her that he was stranded in Yuma, was apprehended in
Banning several days later.

   Subsequent to the shootings, the police found several
pieces of evidence in the fields surrounding the Hill house,
including Robinson’s shotgun, several spent and unspent shot-
gun shells, a revolver cylinder, a bag containing several bul-
                      ROBINSON v. SCHRIRO                   2719
lets, and a coat that appeared to belong to Washington. The
police also found evidence in Robinson’s car, including a box
of shotgun shells, a red bandana (on which hairs probably
belonging to Mathers were found), and a piece of paper with
the Hills’ address on it, which had probably been written by
Robinson.

   In front of the Hills’ home, the police found footprints
which they believed belonged to Robinson, although they did
not have a forensic expert evaluate the prints. There was no
evidence, however, that Robinson had been inside the home.
No fingerprints of his were found inside the house, on the
shotgun, or on any other items believed to have been used in
the shooting. Moreover, neither LeSean nor Ralph Hill identi-
fied Robinson as having been one of the intruders, even
though Ralph knew Robinson and was shown a photo lineup
containing Robinson’s photo.

                        B.    The Trial

                       1.    Guilt Phase

  The three men were tried together. The prosecution’s the-
ory at trial was that Robinson had recruited Washington and
Mathers to go with him to Yuma to kidnap Susan Hill. The
prosecution’s evidence established that Robinson had brought
guns on his trip to Yuma, had been present in front of the
Hills’ house, and had driven away after the shooting. But the
prosecution neither argued nor presented evidence that Robin-
son entered the residence or participated in the actual shoot-
ing. In fact, Ralph specifically testified that the person he saw
was not Robinson. Additionally, the prosecution presented no
evidence or argument that Robinson had instructed Washing-
ton and Mathers to kill the Hills, much less tell them how to
do so.

  As further evidence of Robinson’s motive, the prosecution
presented evidence of two other occasions on which Robinson
2720                  ROBINSON v. SCHRIRO
attempted to get Susan to return to him. The first time, in June
1986, Susan was staying with her sister in North Hollywood,
California. Two men entered the house one after the other,
threatened Susan’s sister and 11-year-old niece with hand-
guns, and tied up their hands with stockings. Approximately
two minutes later Robinson entered the house, by which time
the niece had already been untied. Robinson had the sister
take him to Susan, who was hiding in the bedroom closet.
Robinson then cut the stockings off of the sister’s hands, told
her to return to the living room, and spoke to Susan for about
half an hour. During the conversation, Robinson tried to make
Susan believe that he missed her and wanted her to come back
to him, but he also told Susan that he had come with the inten-
tion of killing her and her sister and that the only thing that
stopped him was that Susan’s niece was there. The next day,
Susan left with Robinson for Banning.

   The second occasion was in January of 1987, after Susan
went to Philadelphia to stay with family without telling Rob-
inson where she was going. When Robinson eventually
located her, he went to Philadelphia with Mathers, lured
Susan to him through a ruse, grabbed her, and took her back
to Banning.

  All three defendants were found guilty of first-degree mur-
der, attempted first-degree murder, two counts of aggravated
assault, first-degree burglary, and armed robbery.

                    2.   Sentencing Phase

   The prosecution changed its theory of the case at sentenc-
ing. The new theory was that Sterleen died as a result of a
drug deal gone bad. Accordingly, the prosecution argued two
statutory aggravating circumstances: (1) the defendants com-
mitted the offense in expectation of the receipt of something
of pecuniary value, and (2) the defendants committed the
offense in an especially cruel, heinous, or depraved manner.
Additionally, the prosecution specifically argued that the pos-
                      ROBINSON v. SCHRIRO                  2721
sibility that the conviction rested upon felony-murder was not
a mitigating circumstance in this case because there was no
doubt of the defendants’ specific intent to kill.

   In his sentencing memorandum, Robinson’s attorney, Rob-
ert Roberson made several arguments. First, Roberson argued
that the Supreme Court’s opinions in Enmund v. Florida, 458
U.S. 782 (1982), and Tison v. Arizona, 481 U.S. 137 (1987),
counseled against sentencing Robinson to death because Rob-
inson was not present at the scene of the killing and the prose-
cution could not show beyond a reasonable doubt that
Robinson intended to kill or acted with a reckless indifference
to human life. Second, Roberson argued that the prosecution
could not prove the statutory aggravating circumstances
beyond a reasonable doubt. Third, he argued that two statu-
tory mitigating circumstances applied: (1) that Robinson was
a minor participant in the offense, and (2) that it was not rea-
sonably foreseeable that Robinson’s conduct would cause or
create a grave risk of death to another person. Finally, he
briefly argued that Robinson could not be sentenced to death
because he was convicted under the felony murder rule.
Roberson did not present any non-statutory mitigating factors
in his sentencing memorandum.

   The court held a single aggravation/mitigation hearing for
the three defendants. The prosecution presented several wit-
nesses, including Major Ralph Ogden, chief deputy for the
Yuma County Sheriff’s office. Ogden testified about state-
ments made to him by Robinson’s co-defendant Washington
after the arrest, but the Arizona Supreme Court later deemed
this testimony inadmissible under the Confrontation Clause.

   According to Ogden’s second-hand account, Robinson told
Washington when they arrived in Yuma that they were going
to “knock off a dope dealer, take his coke and take the cash.”
He also instructed them that after Washington and Mathers
had gone up to the house, Washington would knock on the
door, and that when somebody opened it, the two men would
2722                       ROBINSON v. SCHRIRO
enter and “put the people down,” meaning “get them in chairs
or whatever.” At that point, Robinson would enter because he
knew where the cocaine and the money were located. Accord-
ing to Ogden, Washington told him that there was no specific
plan to kill anybody, but that Mathers was to carry a shotgun
and Robinson told his accomplices, “if things get rough, shoot
‘em.”

   Sergeant Roy Brock, also with the Yuma County Sheriff’s
office, testified at the sentencing phase about statements that
Robinson had made to him after the murder. These statements
indicated that the purpose of the trip to Yuma was to “rip off”
some drug dealers. But according to Robinson, Washington
and Mathers drove to Yuma in a different car and went to the
wrong house, where they proceeded to commit the crime.2

   Roberson cross-examined the state’s witnesses, but did not
call any of his own. In his closing argument, Roberson again
focused on the aggravating factors and urged the court to find
that the county had not proved the aggravating factors beyond
a reasonable doubt. With respect to mitigation, Roberson
relied on his sentencing memorandum, making only a brief
argument that Robinson “[didn’t] have a history of harming
people” and was “a good father apparently.”3 Altogether,
  2
     The county also called Dr. Bruce Shirer, a pathologist who performed
the autopsy on Sterleen Hill and had testified at trial. Shirer testified that
there was no evidence of head trauma that would indicate that Sterleen had
been knocked unconscious; on cross-examination he acknowledged that it
was nevertheless possible that she was knocked unconscious shortly
before being shot. Ralph Hill testified at the aggravation/mitigation hear-
ing, but his testimony was directed only toward sentencing for the non-
capital offenses for which the defendants were convicted.
   3
     The following is the full extent of Roberson’s closing argument on mit-
igation:
      I can cite a whole lot of mitigating factors as far as Fred is con-
      cerned. I can cite a couple that may have a little bearing. Fred,
      at least as far as the evidence we have received in court, doesn’t
      have a history of harming people. He may have a history, as
                         ROBINSON v. SCHRIRO                        2723
Roberson’s closing argument consisted of just over ten pages
of double-spaced transcript.

   The court sentenced Robinson to death.4 The sentencing
judge found three statutory aggravating factors justifying the
sentence: (1) Robinson procured the commission of the
offense by the payment or promise of receipt of something of
pecuniary value by the other defendants; (2) Robinson com-
mitted the offense for the purpose of receipt of something of
monetary value; and (3) Robinson committed the offense in
an especially heinous, cruel, or depraved manner. With
respect to mitigating circumstances the court found that (1)
Robinson’s capacity to appreciate the wrongfulness of his
conduct or to conform his conduct to the requirements of law
was not impaired; (2) Robinson was not under duress; (3)
Robinson was not a minor participant in the crime; (4) it was
reasonably foreseeable that the offense would create a grave
risk of death; (5) Robinson’s age (46 at the time of the mur-

      shown by the evidence, of going after Susan and being involved
      in some shenanigans that way, but he never hurt anybody as far
      as we know by the testimony. He is a good father apparently. He
      has — I don’t remember what the testimony is — 9, 12, 15 kids
      or something by several different women. He apparently has cus-
      tody of almost all of them. Even Susan had to testify Fred was
      a good father. The kids loved him. They were taken care of, fed,
      clothed, sent off to go to school. The kids testified about having
      to go to school, getting homework done. They had newspaper
      routes. I don’t think we can show Fred is some kind of ogre who
      is a total — and has no redeeming value. I think from the fact he
      was able to raise, from what I could see from testimony, 2 pretty
      good kids and presumably the other children just as well as those
      2. He is able to care for them. He is able to. They love him. I
      think that’s a little mitigation for him.
   4
     Under Arizona law at the time of Robinson’s sentencing, the trial
judge, not the jury, determined whether aggravating circumstances
applied. Although the Supreme Court invalidated this sentencing scheme
in Ring v. Arizona, 536 U.S. 584 (2002), Ring does not apply retroactively
to cases on collateral review. Schriro v. Summerlin, 542 U.S. 348, 358
(2004).
2724                     ROBINSON v. SCHRIRO
ders) was not a mitigating factor; and (6) “no other mitigating
circumstances were presented by the defendant for consider-
ation.” Because the trial court found at least one statutory
aggravating circumstance and no mitigating circumstances, it
was bound under then-existing Arizona law to apply the death
penalty. See Ariz. Rev. Stat. 13-703(E) (1988) (current ver-
sion at Ariz. Rev. Stat. § 13-751).

 C.    State Appeals and Federal Habeas Corpus Review

                         1.   Direct Appeal

   All three defendants appealed their convictions and sen-
tences. The Arizona Supreme Court vacated Mathers’s con-
viction, State v. Mathers, 796 P.2d 866 (Ariz. 1990), but
upheld the convictions of Robinson and Washington, State v.
Robinson, 796 P.2d 853 (Ariz. 1990). Before the Arizona
Supreme Court, Robinson argued that various evidentiary rul-
ings in the trial court were in error and that his sentence
should be vacated because “(1) the killing was not committed
for pecuniary gain, (2) the killing was neither depraved nor
heinous, nor was it cruel, and (3) a further hearing was
required regarding the presence of Tison and Enmund consid-
erations.” Id. at 858. Although it upheld Robinson’s sentence,
the court held that only two of the three aggravating circum-
stances found by the sentencing court were supported by the
evidence. Id. at 861-63. The court held that the testimony of
Major Ogden as to the statements made to him by Washington
was inadmissible because it violated Robinson’s Sixth
Amendment right to confront a witness against him. Id. at
861-62. As a result, the court set aside as insufficiently sup-
ported the sentencing court’s finding that Robinson commit-
ted the murder in expectation of something of pecuniary
value. Id. at 862. As for mitigating circumstances, the court
stated, “Robinson offered no mitigating circumstances and we
agree with the trial court that none exist.”5 Id. at 863. As a
  5
    As explained above, Robinson’s counsel did in fact argue very briefly
for two statutory mitigating circumstances and two nonstatutory mitigating
                       ROBINSON v. SCHRIRO                     2725
result, the court held that “no mitigating circumstances exist
so as to warrant vacating . . . Robinson’s . . . death sen-
tence[ ].” Id. at 864. The court also concluded that “imposi-
tion of the death penalty in the present case is proportional to
the sentences imposed in similar cases,” and that the district
court did not commit fundamental error. Id. at 865.

       2.   State Post-Conviction Relief Proceedings

   Robinson then brought a petition for post-conviction relief
in Arizona state court, making the same arguments that he
made on direct appeal and adding a claim for ineffective
assistance of counsel. The same superior court judge who pre-
sided over Robinson’s trial also presided over Robinson’s
post-conviction proceedings. The court conducted an eviden-
tiary hearing on the ineffective assistance of counsel claim.
The court heard testimony from Juan Gonzales, a corrections
parole officer; Robert Roberson, Robinson’s trial counsel; and
Dr. Tod Roy, a psychologist who examined Robinson in prep-
aration for the evidentiary hearing.

                          a.   Gonzales

   Gonzales’s testimony focused on Robinson’s good behav-
ior in prison. Gonzales testified that Robinson had frequent
contact with members of his family, both by mail and by tele-
phone. Gonzales also testified that Robinson had only two
minor disciplinary problems in four years and was classified
as Level Five-One, the lowest security level possible for a
death row inmate, “which means . . . they do what they are
told and never get in trouble.” Gonzales testified that Robin-
son was an insulin-dependent diabetic and that he got along
well with other inmates, went to church regularly, and had

circumstances. That the Arizona Supreme Court wrongly believed that
Robinson had offered no mitigating circumstances accentuates only the
feebleness and brevity of counsel’s effort.
2726                      ROBINSON v. SCHRIRO
adjusted well to life in prison. Gonzales believed that Robin-
son would do well if he were placed in the general prison pop-
ulation.

                             b.   Roberson

   Roberson testified about his educational and professional
background and about his preparation for the guilt and penalty
phases of the trial. At the time of the evidentiary hearing, he
had been practicing for about twenty years, splitting his time
more or less equally between criminal and civil work, and
thought, although he was not sure, that he had tried at least
one death penalty case prior to Robinson’s. He explained that
after being assigned to Robinson’s case, he stopped taking
new civil matters so that he would have more time for Robin-
son. He did not apply for funds for a private investigator, not-
ing that “back during those days we were all doing pretty
much our own investigation.”6 Likewise, he did not hire medi-
cal or mental health experts, stating that he never observed
any mental deficiencies, that Robinson never “gave [him] any
indication that there was some mental problem that he might
like to explore,” and that he never got “any inkling” that there
was “any kind of a mental problem or psychological explana-
tion . . . that might have led to Fred’s involvement in this
case.”

   Turning specifically to the penalty phase, Roberson
acknowledged that any type of mitigating evidence could be
presented at sentencing, not just the five statutory circum-
stances, and that the nonstatutory factors included potential
for rehabilitation, remorse, and family ties. He also acknowl-
edged that the full extent of his investigation was talking to
Robinson, and he explained that he did not feel that he could
present evidence of remorse or family ties because Robinson
insisted he was innocent and two of his sons had testified
  6
   The court agreed that “it was rather rare for the court either to hear or
grant a request for outside investigators.”
                      ROBINSON v. SCHRIRO                  2727
against him. He acknowledged that he did not subpoena
school, medical, mental, or employment records for Robin-
son, but did not provide any explanation for why he did not
do so. He acknowledged that in hindsight he should have con-
sulted a psychologist or psychiatrist, but said that at the time
he did not think it was necessary based on what Robinson had
told him. Finally, he acknowledged that he did not call any
witnesses on Robinson’s behalf.

                           c.   Roy

  Dr. Roy testified as to the results of his psychological eval-
uation of Robinson. In preparing his report, Roy conducted
fourteen hours of face-to-face interviews and testing with
Robinson and interviewed Robinson’s father.

   Roy described a “number of experiences in [Robinson’s]
development that I think contributed to how he viewed peo-
ple[, e]specially in close relationships.” These included
repeated childhood sexual abuse, the repudiation of Robin-
son’s siblings by his father, and physical and emotional abuse
by his father and stepmother.

   According to Roy’s report, Robinson was born and spent
his formative years in a poor, segregated rural community in
Texas. He described his childhood as close knit until his par-
ents separated when he was nine or ten. His parents’ divorce
was particularly difficult for Robinson because his father
rejected the younger children in open court and the children
were separated. Robinson and the older siblings went to live
with his father, and the younger siblings stayed with his
mother.

   Shortly after the divorce, Robinson’s father remarried. His
new stepmother had five children of her own and they all
lived in a very small house. Robinson felt that he and his bio-
logical siblings were treated worse than his step-siblings; for
example, the step-siblings ate meals first and Robinson and
2728                  ROBINSON v. SCHRIRO
his siblings ate the leftovers. Robinson reported being beaten
with a switch or a belt approximately every other day for
minor infractions reported by his stepmother. Things
improved when the family moved to a larger house, although
there was still conflict. In particular, when Robinson was in
high school he worked to save money for a car; not twenty-
four hours after he purchased it, his father told him that he
and Robinson’s stepmother had decided that Robinson would
have to give his car to an older stepbrother who in their esti-
mation needed it more because he was going to college. Rob-
inson continues to resent his father for doing this, although he
says he forgave him.

   Robinson also experienced several incidents of sexual
abuse. First, his stepmother’s boyfriend sodomized him at
knifepoint and threatened him with death if he told anyone.
Second, when he was about nine years old, he witnessed his
sister being raped by a white man. Finally, as a young boy he
had an aunt who repeatedly performed oral sex on him and
forced him to do the same to her. Dr. Roy remarked at the evi-
dentiary hearing that Robinson “was tearful and very reluctant
to talk about [the rape]. And it was my impression that I was
the first person to whom he had disclosed that.” Roy
described the significance of this type of incident to a child:

    It’s significant because — especially a rape of that
    nature — it brings very quickly to one’s awareness
    how powerless one is over the power of someone
    else, for one. And I believe his life was threatened if
    he told anyone. One’s achievement, one’s desire to
    do things can be robbed when arbitrarily they are
    taken from us, and for reasons that aren’t reasonable
    and questionable entitlement. That would leave an
    individual with — who was somewhat confused, in
    terms of what to expect. It would also create a sense
    of dependency on these people, because they are the
    ones that have the power, and that power sometimes
    is utilized in inappropriate ways.
                         ROBINSON v. SCHRIRO                        2729
   At the time of his conviction, Robinson had been unem-
ployed and receiving disability benefits for approximately
seven years. He became disabled as a result of a motorcycle
accident which left him with a pronounced limp. Robinson
also claimed that he suffered a head injury as a result of the
accident, but according to Roy, Robinson’s medical records
after his accident “did not report any disturbances that would
suggest organic brain damage.”

   Robinson has a very large family. In addition to seventeen
siblings, he reported having fifteen children of his own with
five different women. Several of these relationships ended or
had problems because the women were cheating on him.

   Robinson claims never to have used drugs. At the time of
his conviction, he had numerous health problems, including
diabetes, high-blood pressure, a broken hip, and poor vision.
He had never been evaluated or treated by a mental health
care provider until his post-conviction relief evaluation.

   Roy diagnosed Robinson with Adjustment Disorder with
Anxious Mood (Axis I) and Borderline Personality Disorder
with Dependent Features (Axis II), a character disorder that
leads to a pattern of unstable relationships because of the psy-
chological defense mechanisms of its sufferers. Roy con-
cluded in his report that Robinson’s character disorder
resulted from his caretakers’ disregard for him and his efforts.7

   At the hearing, Roy testified that Robinson “had the poten-
tial to be rehabilitated,” although there were concerns about
the likelihood in light of his age and disability. He also stated
that there was a “lack of . . . data to support a hostility
towards people.” He found that Robinson had low intelli-
gence, scoring an I.Q. of 81,8 which is at the tenth percentile
   7
     This diagnosis was challenged by the state’s expert, Dr. Eva McCul-
lars, who based her contrary diagnosis of Anti-Social Personality Disorder
on her review of Roy’s report and a brief interview with Robinson.
   8
     An I.Q. of 75 is considered mentally retarded.
2730                 ROBINSON v. SCHRIRO
of adults, meaning his intelligence “would be exceeded by
ninety percent of the adult population of this country.” Dr.
Roy also stated that he did not believe that Robinson had a
predisposition or propensity towards violence, and that there
was no risk of recividism, although he said that he would rec-
ommend Susan stay away from him, because this crime
“seems to be strictly related to the dynamics in that relation-
ship [with Susan Hill] in his own psychology.”

   The court ultimately denied Robinson’s petition in its
entirety. With regard to Robinson’s challenge to the applica-
tion of the especially cruel, heinous, or depraved conduct
aggravator, the court stated that “[n]othing has been presented
here except a reiteration of the sentencing proceedings and
findings of this court which were later reviewed and upheld
on appeal,” which did not “present a colorable claim.”

   The court was similarly unconvinced regarding Robinson’s
claim of ineffective assistance of counsel. The court found
that Roberson was not ineffective at sentencing because (1)
“[i]t was pretty much apparent that the defendant’s family
was not going to be the source of much mitigating testimony”;
(2) evidence that Robinson was “a good and caring father”
was balanced by evidence of Robinson’s “aggressive and
tyrannically possessive attitude concerning his ‘family,’ ”
including Susan Hill; and (3) there was no evidence that Rob-
inson was “a minor player in the crime[.]” The court also
found that Roberson was not ineffective in failing to request
a psychological evaluation. The court accepted as true the
finding that Robinson had “an antisocial personality disorder
and was poorly adjusted to living in society,” but found that
there was nothing which would have “lessened his ability to
differentiate right from wrong or to conform his actions with
the law” at the time the murder was committed. The court also
noted that there was nothing that would have suggested to
Roberson that a mental examination would be helpful to Rob-
inson. The court concluded that the results of Dr. Roy’s exam-
ination would not have “altered the sentence imposed.”
                         ROBINSON v. SCHRIRO                         2731
Finally, the court rejected all of Robinson’s claims of mitigat-
ing circumstances.

  The Arizona Supreme Court subsequently denied Robin-
son’s petition for review without opinion.9

                  3.     Federal Habeas Corpus

   Robinson filed a preliminary habeas petition on March 14,
1996, in which he requested relief on ten grounds and sought
appointment of counsel. Counsel was appointed and on May
6, 1997 an amended petition was filed. Robinson’s amended
petition made nine claims for relief: (1) ineffective assistance
of counsel based on his attorney’s conflict of interest; (2) a
due process violation based on the trial court’s refusal to give
a requested lesser included offense instruction; (3) the “pro-
curement for pecuniary gain” aggravating circumstance was
unconstitutionally vague; (4) the prosecution’s inconsistent
motive theories violated his Fourteenth Amendment rights;
(5) a violation of his Eighth and Fourteenth Amendment
rights because the Arizona Supreme Court failed to conduct
a harmless error analysis or re-weigh aggravating and mitigat-
ing circumstances; (6) the application of the “especially hei-
nous, cruel or depraved” aggravating circumstance to facts of
this case violated the Eighth and Fourteenth Amendments; (7)
a violation of his Eighth and Fourteenth Amendment rights
because there was insufficient evidence that he killed,
attempted to kill, or intended to kill; (8) ineffective assistance
of counsel at sentencing; and (9) Arizona’s execution statute
violated the ex post facto clause and the Fourteenth and
Eighth Amendments.

   On August 8, 1999, the district court issued an order dis-
  9
    Robinson filed a Second Petition for Post Conviction Relief in Arizona
Superior Court on February 10, 1998. The state trial court denied the peti-
tion and the Arizona Supreme Court denied the petition for review. Robin-
son’s second petition is not at issue in this appeal.
2732                    ROBINSON v. SCHRIRO
missing Claims 1, 2, 3, 4, and 6-A as procedurally barred and
Claim 9 as withdrawn, and ordering briefing on the merits of
the remaining issues. On March 17, 2005, the district court
denied relief concluding that Claim 5 was procedurally barred
and that Claims 6-B, 6-C, 7 and 8 lack merit. The court also
concluded that Robinson was not entitled to an evidentiary
hearing in district court on ineffective assistance of counsel.
The district court granted a certificate of appealability on
Claims 6-A, 6-B, 6-C, and 8. We subsequently granted a cer-
tificate of appealability on Claims 1, 2, 3, 4, and 5.

                  II.    Standard of Review

   We review the district court’s denial of Robinson’s habeas
petition de novo, and the district court’s findings of fact for
clear error. See Rios v. Rocha, 299 F.3d 796, 799 n.4 (9th Cir.
2002). Because Robinson’s federal habeas petition was filed
before the effective date of the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132,
110 Stat. 1214, pre-AEDPA law governs our consideration of
the merits. Correll v. Ryan, 539 F.3d 938, 941-42 (9th Cir.
2008) (citing Lindh v. Murphy, 521 U.S. 320, 327 (1997)),
cert. denied sub nom. Schriro v. Correll, 129 S. Ct. 903
(2009); Jeffries v. Wood, 114 F.3d 1484, 1494 (9th Cir. 1997)
(en banc). Under pre-AEDPA law, we owe no deference to
the state court’s resolution of questions of law or mixed ques-
tions of law and fact. See Williams v. Taylor, 529 U.S. 362,
400 (2000). Whether Robinson’s trial counsel was ineffective
is a mixed question of law and fact reviewed de novo. Sum-
merlin v. Schriro, 427 F.3d 623, 628 (9th Cir. 2005) (en banc)
(citing Rios, 299 F.3d at 799 n.4). We review the district
court’s findings of fact for clear error. Lambright v. Schriro,
490 F.3d 1103, 1114 (9th Cir. 2007) (per curiam), cert.
denied, 128 S. Ct. 882 (2008). Dismissals based on procedural
default are reviewed de novo. Vang v. Nevada, 329 F.3d
1069, 1072 (9th Cir. 2003).
                        ROBINSON v. SCHRIRO                     2733
                         III.   Discussion

   In this opinion, we consider whether the Arizona state
courts arbitrarily and capriciously applied the aggravating cir-
cumstance of especially cruel, heinous or depraved conduct to
Robinson and whether Robinson received ineffective assis-
tance of counsel at sentencing. Because we decide both issues
in Robinson’s favor, we reverse the district court.

  A.     Claim 6: Especially Cruel, Heinous, or Depraved
                    Aggravating Factor

   In his federal habeas petition, Robinson argued that the
especially cruel, heinous, or depraved aggravating factor,
Ariz. Rev. Stat. § 13-703(F)(6) (1988), was unconstitutional
as applied to him. The district court divided this claim into
three parts:

       (A) Insufficient evidence that Petitioner intended or
       reasonably foresaw the victim’s suffering resulted in
       an arbitrary cruelty finding in violation of Petition-
       er’s rights under the Eighth and Fourteenth Amend-
       ments;

       (B) Insufficient evidence of Petitioner’s involvement
       in the crime resulted in an arbitrary hei-
       nous/depraved finding in violation of Petitioner’s
       rights under the Eighth and Fourteenth Amendments;

       (C) The (F)(6) aggravating factor, as applied to Peti-
       tioners case, failed to sufficiently channel the sen-
       tencer’s discretion in violation of the Eighth and
       Fourteenth Amendments.

The district court rejected claim 6-A as procedurally
defaulted. Following briefing on the merits of the remaining
claims, the district court concluded that sufficient evidence
supported the state courts’ findings that the murder was sense-
2734                     ROBINSON v. SCHRIRO
less and the victim helpless, and as a result, that the depravity
prong of the aggravating factor properly applied to this case.
But the court went on to note that even if the depravity find-
ing was unconstitutional, the error was harmless because the
state courts’ cruelty finding was sufficiently supported by the
evidence to apply the aggravating factor to Robinson. The
court also denied Claim 6-C on the merits. We hold that both
Claims 6-A and 6-B were adequately exhausted and entitle
Robinson to relief. As we hold that the especially cruel, hei-
nous, or depraved aggravating factor was unconstitutionally
applied to Robinson pursuant to Claims 6-A and 6-B, we do
not reach Claim 6-C.

                        1.    Procedural Bar

   [1] The procedural bar doctrine is a subcategory of the
independent and adequate state ground doctrine. See Boyd v.
Thompson, 147 F.3d 1124, 1126 (9th Cir. 1998). The purpose
of the doctrine is to protect the state’s interests by giving it the
opportunity to correct its own errors. See Coleman v. Thomp-
son, 501 U.S. 722, 750 (1991). Under this doctrine, a federal
court ordinarily will not review a state court ruling if the state
court would find that the claim was barred pursuant to an
independent and adequate state procedural rule.10 Id.

   We recognize two types of procedural bars: express and
implied. An express procedural bar occurs when the petitioner
has presented his claim to the state courts and the state courts
have relied on a state procedural rule to deny or dismiss the
claim. An implied procedural bar, on the other hand, occurs
when the petitioner has failed to fairly present his claims to
the highest state court and would now be barred by a state
  10
    The federal court, however, will review the claim if the petitioner can
show either cause and prejudice, see Coleman, 501 U.S. at 750, or a fun-
damental miscarriage of justice, see Murray v. Carrier, 477 U.S. 478, 495
(1986), or if the government waived the procedural default, see Franklin
v. Johnson, 290 F.3d 1223, 1230, 1233 (9th Cir. 2002).
                          ROBINSON v. SCHRIRO                         2735
procedural rule from doing so. See, e.g., Beaty v. Stewart, 303
F.3d 975, 987 (9th Cir. 2002).

   The district court concluded that Claim 6-A was subject to
an implied procedural bar because it was substantially differ-
ent from the cruelty issue raised on direct appeal, and Arizona
Rule of Criminal Procedure 32.2(a)(3) would prohibit Robin-
son from returning to state court to exhaust the claim. We dis-
agree with the district court’s conclusion that Claim 6-A was
not exhausted in Robinson’s direct appeal of his conviction to
the Arizona Supreme Court and conclude, as a result, that no
implied procedural bar applies.

   [2] In order to exhaust his claim, Robinson was required to
present both the factual and legal basis for the claim to the
state court. Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir.
1999); see also Gray v. Netherland, 518 U.S. 152, 162-63
(1996). To do so, Robinson was required to reference specific
provisions of the federal constitution or cite to federal case
law and to provide a statement of the facts that entitle him to
relief. Gray, 518 U.S. at 162-63; Lyons v. Crawford, 232 F.3d
666, 668, 670 (9th Cir. 2000), amended, 247 F.3d 904 (9th
Cir. 2001).

   In the Opening Brief he filed on direct appeal of his convic-
tion to the Arizona Supreme Court, Robinson argued that “the
imposition of the death penalty was in violation . . . of the
Constitution of the United States” because the especially
cruel, heinous, or depraved aggravating factor was applied in
an arbitrary manner. In support of his position, Robinson cited
Jeffers v. Ricketts, 832 F.2d 476 (9th Cir. 1987), rev’d sub
nom. Lewis v. Jeffers, 497 U.S. 764 (1990).11 In Jeffers, we
  11
     The fact that the Supreme Court later held that the aggravating cir-
cumstance was not applied in violation of Jeffers’ constitutional rights,
Jeffers, 497 U.S. 764, does not change the analysis. The citation to Jeffers
is relevant to this discussion because it put the state court on notice that
Robinson was arguing that his sentence violated the federal constitution.
Moreover, at the time Robinson’s appeal was decided, the Ninth Circuit
opinion in Jeffers had not yet been overruled.
2736                       ROBINSON v. SCHRIRO
held that the especially cruel, heinous, or depraved aggravat-
ing factor was applied arbitrarily to Jeffers, in violation of the
Eighth and Fourteenth Amendments, because there was no
principled way to distinguish Jeffers’s conduct from that in
other cases where the Arizona courts had found that the
behavior at issue was not especially heinous or depraved.12 Id.
at 483-85. In addition, Robinson argued that the murder was
not especially cruel because it did not involve “the senseless
or sadistic infliction of great pain” and pointed out that he was
not in the house and did not participate in the actual shooting.13

   The district court erred by concluding that, in his direct
appeal of his conviction to the Arizona Supreme Court, Rob-
inson did not fairly present a claim based on lack of intent or
foreseeability. Robinson argued that “the finding that his acts
constituted especially cruel, heinous and depraved activity is
unconstitutional,” citing to Jeffers in support. Two pages
later, he again asserted that “the imposition of the death pen-
alty in this case was arbitrary and capricious and, therefore,
unconstitutional.” As part of this same discussion in his brief,
he also fairly presented the factual basis for his claim, stress-
ing that “[he] was not even in the house and had no part in
the actual shooting.” Earlier in his brief, while arguing against
application of especially cruel, heinous, or depraved factor, he
  12
      The Arizona Supreme Court had previously held that Jeffers did not
commit the murder in an especially cruel manner. Jeffers, 832 F.2d at 483.
   13
      Robinson’s briefing in the direct appeal of his conviction to the Ari-
zona Supreme Court argued that application of the especially cruel, hei-
nous, or depraved factor was unconstitutional because (1) there was no
evidence that Sterleen Hill suffered, and (2) there was no evidence Robin-
son participated in the murders. It is specious to assert, as the dissent does,
that Robinson now agrees that Mrs. Hill suffered sufficiently to support a
cruelty finding. Further, Robinson’s two arguments against application of
the especially cruel, heinous, or depraved factor are independent of each
other. Even if Robinson had abandoned the first argument about Mrs.
Hill’s suffering we fail to see why — as the dissent seems to suggest —
abandoning that argument would mean that he never made the second
argument about his participation.
                         ROBINSON v. SCHRIRO                         2737
had already “noted that [he] did not participate in the killing,
did not intend anyone to die,” and “was not involved directly
with the shooting.” These arguments clearly exhausted the
federal claim.

   Robinson was not required to present his arguments in the
same amount of detail to the two courts in support of his fed-
eral constitutional claim; he was required only to present to
the state court the legal and factual basis of his federal consti-
tutional claim. Robinson clearly raised the constitutional issue
by citing to a federal case that held that the application of the
especially cruel, heinous, or depraved aggravating factor to
the petitioner violated the Eighth and Fourteenth Amend-
ments of the U.S. Constitution. He also specifically noted his
lack of participation in the shooting in support of his claim.
He thus presented the same claim he does now — that, given
his lack of participation in the murder, a finding of especial
cruelty, heinousness and depravity violated his rights.

   It does not matter that Robinson now cites an intervening
case, State v. Carlson, 48 P.3d 1180 (Ariz. 2002), for the spe-
cific holding that the cruelty prong of the “especially cruel,
heinous, or depraved” factor may not be applied to a defen-
dant absent intent or reasonable foreseeability. Carlson post-
dates both Robinson’s direct appeal and his amended federal
habeas petition, so he could not have cited it. More impor-
tantly, Robinson’s state-court argument was that the “espe-
cially cruel, heinous, or depraved” factor as a whole could not
be constitutionally applied to him because there was no evi-
dence of intent or reasonable foreseeability. His argument,
therefore, encompassed the rule that the Arizona Supreme
Court specifically adopted in Carlson.14
  14
     The dissent distorts the argument Robinson made in his briefing on
direct appeal of his conviction to the Arizona Supreme Court. There he
articulated the “especially cruel, heinous, or depraved” factor as a single
factor under Arizona law (as of course it is).
2738                      ROBINSON v. SCHRIRO
   [3] This is not a case where the petitioner failed to make
clear that he was invoking a federal right, see, e.g., Anderson
v. Harless, 459 U.S. 4, 6 (1982) (per curiam), or where the
petitioner’s “general appeal to a constitutional guarantee” was
too vague to put the state court on notice of the federal claim,
cf. Shumway v. Payne, 223 F.3d 982, 988 (9th Cir. 2000)
(holding that mere reference to “due process” and citation to
a state law case that referenced the federal constitution for a
proposition other than that for which the case was cited to the

   The dissent strains to impose a rigid separation on the arguments in
Robinson’s Arizona Supreme Court briefing, insisting that every time
Robinson argued his lack of participation and intent, he intended it to
relate only to the heinousness and depravity prongs of the factor but not
to the cruelty prong. This interpretation is untenable. The two prongs are
discussed together, in a section of Robinson’s brief headed “Factor 6 of
A.R.S. 12-703F.” Though Robinson makes one argument — regarding the
extent of the suffering of the victims — that is directed to the cruelty
prong only, he ends this section of the brief with a final “not[e]” about
Robinson’s lack of participation or intent, concluding that paragraph with
the statement, “Neither the conduct of the others involved, much less
Appellant Robinson’s, prove this factor beyond a reasonable doubt.”
(Emphasis added.) In the next section of the brief, in the course of discuss-
ing two relevant Supreme Court decisions, Robinson expanded on the
facts demonstrating lack of intent and foreseeability. Contrary to the dis-
sent’s suggestion, the fair reading of the state court briefing is that Robin-
son argued that the “especially cruel, heinous, and depraved” factor as a
whole was unconstitutionally applied in light of Robinson’s lack of partici-
pation in the killings.
   That Robinson’s current arguments elaborate on those made in state
court does not make his state-court presentation insufficient for purposes
of exhaustion. In concluding otherwise, the dissent ignores governing law
and substitutes an exhaustion standard that is wholly unsupported in the
case law. It fails to understand that as long as the “ultimate question for
disposition” has remained the same in state and federal court, as it has
here, “variations in the legal theory or factual allegations urged in its sup-
port” are entirely legitimate. Picard v. Connor, 404 U.S. 270, 277 (1971)
(quotation marks and citation omitted); accord Lopez v. Schriro, 491 F.3d
1029, 1040 (9th Cir. 2007); McKinney v. Artuz, 326 F.3d 87, 97 (2d Cir.
2003); Boyko v. Parke, 259 F.3d 781, 788-89 (7th Cir. 2001); Weaver v.
Thompson, 197 F.3d 359, 364-65 (9th Cir. 1999).
                      ROBINSON v. SCHRIRO                   2739
state court was insufficient to put the state court on notice of
the federal claim). Robinson alleged violation of a narrow and
specific constitutional guarantee — the right to be free from
the arbitrary application of an aggravating factor, leading to
the arbitrary imposition of the death penalty — and cited a
federal court case, Jeffers, that held that right was violated
because of the way in which the especially cruel, heinous, or
depraved factor was applied to the petitioner in that case. He
also alleged the factual basis for the claim: the manner of the
murder and specifically his lack of participation in the shoot-
ing. This combination was sufficient to present the bases of
his federal claim to the state court. Accordingly, we hold that
Robinson exhausted the claim in state court.

   [4] Because Robinson exhausted this claim in the state
court, federal court review is barred only if the Arizona
Supreme Court relied on a violation of a state procedural rule
in rejecting the claim. See Harris v. Reed, 489 U.S. 255, 261-
62 (1989). In this case, the state supreme court, on direct
appeal, rejected the claim on the merits. State v. Robinson,
796 F.2d at 858. Accordingly, we are not procedurally barred
from reviewing Robinson’s claim. Cf. Vasquez v. Hillery, 474
U.S. 254, 260 (1986) (addressing merits of claim after deter-
mining that additional facts did not change substance of claim
addressed by California Supreme Court).

             2.   Merits of Claims 6-A and 6-B

   Robinson asserts that insufficient evidence supported the
Arizona Supreme Court’s application of the especially cruel,
heinous, or depraved aggravating factor. To be applied to a
defendant, an aggravating factor must be proved beyond a
reasonable doubt. Summerlin, 427 F.3d at 642. Federal habeas
corpus relief does not lie for mere errors of state law, but only
for federal constitutional violations. Jeffers, 497 U.S. at 780.
Therefore, to grant habeas relief on an insufficient evidence
claim we must conclude that the sentencing court’s finding
that the murder was committed in an especially heinous,
2740                  ROBINSON v. SCHRIRO
cruel, or depraved manner beyond a reasonable doubt was not
only erroneous, but “was so arbitrary or capricious as to con-
stitute an independent due process or Eighth Amendment vio-
lation.” Id. In making such a determination, the applicable
standard of review is that of the “rational factfinder.” Id. at
781; see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1307
(9th Cir. 1996). This means that “[a] state court’s finding of
an aggravating circumstance in a particular case — including
a de novo finding by an appellate court that a particular
offense is ‘especially heinous . . . or depraved’ — is arbitrary
or capricious if and only if no reasonable sentencer could
have so concluded.” Jeffers, 497 U.S. at 783. Furthermore, as
the especially heinous, cruel, or depraved factor is framed in
the disjunctive, we must individually determine that the sen-
tencing court’s finding of both cruelty and heinousness and
depravity were arbitrary to find that the application of the fac-
tor constituted a constitutional violation. See State v. Gretzler,
659 P.2d 1, 10 (Ariz. 1983).

   [5] The cruelty prong of the aggravating factor “relates to
the physical and mental suffering of the victim during the
murder.” State v. Carlson, 48 P.3d 1180, 1191 (Ariz. 2002).
By contrast, “heinousness and depravity focus on the mental
state of the defendant.” Id. Robinson’s challenges to applica-
tion of both the cruelty and the heinousness and depravity
prongs fundamentally run parallel. At bottom, Robinson
asserts that the state courts’ application of both prongs of this
factor was arbitrary because there is no admissible evidence
that Robinson was present at, intended, or reasonably foresaw
the murders. We agree. Applying the especially cruel, hei-
nous, or depraved factor to Robinson based on the manner of
a murder he neither intended, was present for, nor anticipated
with reasonable certainty, is an application of Arizona law so
arbitrary as to constitute an Eighth Amendment violation.

   [6] Our review of the record reveals no admissible evi-
dence or argument placing Robinson inside the Hills’ home at
the time of the murder or evidence tending to prove that Rob-
                         ROBINSON v. SCHRIRO                        2741
inson ordered the murder of the Hills. The prosecution never
argued, nor was any evidence presented, that Robinson
entered the Hills’ home and was present for, let alone person-
ally performed, the murder. The evidence shows, and the
prosecution argued, only that Robinson drove Mathers and
Washington with firearms to the Hills’ home and was present
outside the residence when the murder occurred. Nor was any
admissible evidence presented that Robinson ordered the
tying up or murder of the Hills. Major Ogden’s statements
supporting such a conclusion were deemed inadmissable by
the Arizona Supreme Court. Although there was evidence that
a year earlier Robinson had entered Susan’s sister’s house in
search of Susan after two of Robinson’s associates had first
entered the house with guns and tied up Susan’s sister and
niece, Robinson did not harm anyone on that occasion and
there was no evidence that Robinson had instructed his asso-
ciates to tie up Susan’s sister and niece. Hence, the total evi-
dence here at most indicates that Robinson formulated and
initiated a plan to have Mathers and Washington invade the
Hills’ home to locate Susan or drugs, not any plan to bind and
murder the Hills.

   [7] The Arizona Supreme Court’s findings on appeal
reflect the lack of evidence of Robinson’s presence at or
ordering of the murder. While it found Washington “was at
least present in the Hills’ home” when the murder occurred,
it found only that Robinson “loaded firearms into his vehicle
in preparation for the trip” and “masterminded the trip.” Rob-
inson, 796 P.2d at 864.15 The court, however, did not make
  15
    We note that, although the jury found Robinson guilty of first degree
murder, attempted first degree murder, burglary in the first degree, armed
robbery, aggravated assault causing serious physical injury, and aggra-
vated assault using a deadly weapon, this verdict did not require the jury
to find that Robinson entered the Hills’ home. The jury was instructed
both as to felony murder and accomplice liability and found both Mathers
and Washington guilty of the same offenses. Either a felony murder or
accomplice theory allowed the jury to impute guilt to Robinson through
the actions of Mathers and Washington.
2742                      ROBINSON v. SCHRIRO
any specific finding that Robinson ordered the binding or kill-
ing of the Hills. Despite the lack of findings on these critical
points, the court relied on the specific manner in which Sterl-
een’s murder was carried out to uphold the especially cruel
and heinous or depraved aggravating factor. This was an arbi-
trary application of state law.

   [8] “There is no vicarious liability for cruelty in capital
cases absent a plan intended or reasonably certain to cause
suffering. The plan must be such that suffering before death
must be inherently and reasonably certain to occur, not just an
untoward event.” Carlson, 48 P.3d at 1193. To apply “[m]ere
foreseeability as a benchmark for death in capital cases would
not permit the aggravators to serve their constitutional pur-
pose of narrowing the class of first-degree murderers who can
be sentenced to death.” Id. at 1192.16 In holding that Ster-
leen’s murder was proved beyond a reasonable doubt to be
especially cruel, the Arizona Supreme Court relied on the evi-
dence that Sterleen was bound and witnessed the shooting of
her husband prior to her murder, causing her mental suffering.
Robinson, 796 P.2d at 863. As there was no evidence and the
court made no finding that Robinson was present at the time
of the murder, to support a cruelty finding the court was
required to address whether Robinson in any way intended or
anticipated the manner of Sterleen’s murder.17 The court did
  16
      While the Arizona Supreme Court decision in Carlson clarifying the
degree of foreseeability necessary to impute cruelty to a defendant was not
announced until after Robinson’s sentence became final, as a substantive
rule it applies retroactively to Robinson’s petition. See State v. Towery, 64
P.3d 828, 831 (Ariz. 2003).
   17
      We agree with the dissent that Robinson’s absence “does not give him
a pass on culpability,” post at 2762, but it does require that there be evi-
dence that he intended or anticipated not only the murder but the manner
of the murder before the “cruelty” prong may be applied. Thus, in State
v. Dickens, cited by the dissent, the defendant, though absent, told the gun-
man by walkie-talkie that he should leave no witnesses, knowing full well
his accomplice would murder the witnesses brutally. 926 P.2d 468, 474-
75, 491-92 (Ariz. 1996). Here there was no evidence that even intimates
that kind of intent or direction.
                         ROBINSON v. SCHRIRO                         2743
not even address foreseeability.18 This failure to apply a con-
stitutionally necessary narrowing principle of state law in
applying an aggravating factor is clearly arbitrary, and so a
violation of the Eighth Amendment.

   [9] Had the Arizona Supreme Court addressed foreseea-
bility, it could not have rationally found Sterleen’s death, let
alone its manner, foreseeable with reasonable certainty under
state law. The Arizona Supreme Court’s decision in State v.
Carlson, which similarly involved a murder committed by
accomplices outside of the presence of the defendant, wholly
precludes any rational factfinder from imputing the manner of
Sterleen’s murder to Robinson. Unlike the evidence before us
here, the evidence in Carlson made clear that the defendant
ordered the killing of the victim by two accomplices whom
she drove and let in to the victim’s apartment. Carlson, 48
P.3d at 1185. Once in the apartment, one of the accomplices
stabbed the victim multiple times with his eyes closed. Id. The
court nonetheless held that “cruelty was not properly found”
because the defendant “did not plan how the murder would be
committed and could not have known that Dan would bungle
it by closing his eyes while he repeatedly stabbed Lynne.” Id.
at 1193. As in Carlson, there is no admissible evidence that
Robinson was present at the murder or planned for the manner
of the murder’s execution. Indeed, there is no evidence Rob-
inson planned that the murder be committed at all. Further-
more, as in Carlson, there is no basis to conclude that
Robinson’s home-invasion plan was reasonably certain to
cause death, let alone death following suffering. Robinson
  18
    The Arizona Supreme Court did find, in dismissing Robinson’s
Edmund/Tison claim not on appeal before us, that Robinson acted with
“reckless indifference to human life.” Robinson, 796 P.2d at 864. This
finding does not address the inquiry we are concerned with here: whether
Robinson acted with a reasonable certainty that Sterleen Hill specifically
would be murdered in an especially cruel manner. The fact that Robinson
acted with a reckless indifference to human life generally does not tell us
whether his actions had a reasonable certainty of causing Sterleen Hill’s
murder to occur and occur in the manner it did.
2744                      ROBINSON v. SCHRIRO
could not have foreseen with any certainty that his accom-
plices would “bungle” the home invasion and murder Sterleen
in the manner they did. The Arizona Supreme Court made no
finding to that effect. The murder here, like that in Carlson,
is a near-textbook example of the type of unforeseen event
that Arizona courts may not constitutionally rely on to support
a finding of cruelty. We hold that the Arizona Supreme Court
here acted arbitrarily.

   [10] We also hold that Robinson’s lack of personal partici-
pation in the murder renders the sentencing court’s applica-
tion of the heinous or depraved factor arbitrary. Unlike
cruelty, a finding of heinousness or depravity depends on the
defendant’s state of mind. See Martinez-Villareal v. Lewis, 80
F.3d 1301, 1308 (9th Cir. 1996); State v. Newell, 132 P.3d
833, 849 (Ariz. 2006); State v. Moody , 94 P.3d 1119, 1167
(Ariz. 2004); Carlson, 48 P.3d at 1191. “The court looks to
a defendant’s words and actions at or near the time of the
offense to determine a defendant’s state of mind” for purposes
of finding heinousness and depravity. State v. Murdaugh, 97
P.3d 844, 856 (Ariz. 2004).19 The Arizona courts have typi-
cally relied on five factors “to establish a heinous and
depraved state of mind”: “(1) relishing the killing, (2) com-
mission of gratuitous violence, (3) mutilation of the victim,
(4) senselessness of the killing, and (5) helplessness of the
victim.” Carlson, 48 P.3d at 1193-94 (citing Gretzler, 659
P.2d at 11-12); see also, e.g., State v. Detrich, 932 P.2d 1328,
1339 (Ariz. 1997).
  19
    The Arizona Supreme Court has alternately defined heinousness and
depravity as focusing on the state of mind of the “killer,” see, e.g., Arizona
v. Djerf, 959 P.2d 1274, 1287 (Ariz. 1998), “murderer,” see, e.g., State v.
Lopez, 847 P.2d 1078, 1091 (Ariz. 1992); or “perpetrator,” see, e.g., State
v. Bocharski, 189 P.3d 403, 420 (Ariz. 2008), rather than the “defendant”
specifically. However, it has used these terms exclusively as an alternate
means to identify the defendant, rather than to denote that heinousness and
depravity can be found on the basis of the state of mind of an accomplice.
                      ROBINSON v. SCHRIRO                  2745
   [11] The Arizona Supreme Court upheld the sentencing
court’s finding of depravity as to Robinson on the basis that
the killing was senseless and that Sterleen was rendered help-
less prior to her death. Robinson, 796 P.2d at 863. The court
stated simply that “the gangland-style action of forcing two
elderly persons to lay [sic] face down on the floor, tying them
up, then senselessly shooting them amounts to depraved con-
duct.” Id. We note initially that “senselessness and helpless-
ness will ordinarily not be sufficient to prove heinousness or
depravity.” State v. Ross, 886 P.2d 1354, 1363 (Ariz. 1994).
The Arizona Supreme Court’s reliance solely on the two least
probative of the Gretzler factors does not, however, conclu-
sively render their finding arbitrary. Rather, our conclusion of
arbitrariness derives from the court’s total failure, again, to
address the lack of evidence that Robinson was present for or
ordered the killing of Sterleen. The court offers no explana-
tion for how events that Robinson had no role in can illumi-
nate his state of mind at the time they occurred.

   Unsurprisingly, we have located no decision of the Arizona
Supreme Court prior to or following its decision in this case
in which a finding of a heinous or depraved state of mind was
based on the manner of a killing that a defendant did not par-
ticipate in or direct. The Arizona Supreme Court has generally
been unwilling to impute heinousness and depravity to a
defendant based on the actions of an accomplice. See State v.
Richmond, 886 P.2d 1329, 1335 (Ariz. 1994) (refusing to find
defendant possessed a heinous or depraved state of mind
based on the driving of a vehicle over the body of the victim
because “the evidence has never been clear regarding who
drove the vehicle over the victim”), abrogated on other
grounds by State v. Mata, 916 P.2d 1035, 1039 (Ariz. 1996);
State v. Bracy, 703 P.2d 464, 482 n.8 (Ariz. 1985) (finding
that heinousness and depravity could not be shown “by one of
the killer’s statements immediately before the killings”
because “[i]t was never proven which of the three murderers
made this statement, and we cannot impute vileness on all
three men because of the statement of one of them”). We also
2746                  ROBINSON v. SCHRIRO
have implicitly recognized that the manner of a person’s mur-
der not performed or intended by a defendant is an “invalid
consideration[ ]” in finding depravity. Correll v. Stewart, 137
F.3d 1404, 1420 (9th Cir. 1998). In the majority of the few
cases in which the Arizona Supreme Court has been willing
to impute heinousness or depravity to a defendant who did not
personally kill a victim, it has made specific findings regard-
ing the defendant’s presence at and intention to assist the kill-
ing. See State v. Anderson, 111 P.3d 369, 395-96 (Ariz.
2005); State v. Cook, 821 P.2d 731, 751-52 (Ariz. 1991);
State v. Correll, 715 P.2d 721, 730-33 (1986); State v. Tison,
633 P.2d 335, 352-353 (Ariz. 1981). In the cases in which it
has considered, but ultimately rejected a finding of heinous-
ness or depravity as to a defendant who did not personally kill
the victim, the Arizona Supreme Court has focused its analy-
sis exclusively on aspects of the killing within the defendant’s
knowledge and control. See Carlson, 48 P.3d at 1193-94
(focusing on medical condition of victim chosen by defen-
dant); State v. Miles; 918 P.2d 1028, 1030 (Ariz. 1996)
(focusing on defendant’s purpose in having defendant killed
and defendant’s participation in rendering victim helpless).

   [12] We have located only two cases aside from Robinson
in which the Arizona Supreme Court has found heinousness
and depravity as to a defendant who was not present at the
time of the killing. The court’s analysis in those cases is
instructive as to the arbitrariness of the court’s conclusions
here. In State v. Speer, 212 P.3d 787, 791-92 (Ariz. 2009), the
defendant, while imprisoned, had an accomplice murder the
victim because the victim was a potential witness against the
defendant. The court applied the especially heinous, depraved,
or cruel aggravating factor purely on the basis of the witness
elimination motive. Id. at 802. In State v. Milke, 865 P.2d 779,
781-82 (Ariz. 1993), the defendant delivered her four year old
son to two accomplices who murdered him at her request. The
court found the defendant possessed a heinous and depraved
state of mind on the basis of three factors: 1) the senselessness
of the defendant’s desire to have her son killed; 2) the help-
                      ROBINSON v. SCHRIRO                    2747
lessness of her son at the time she delivered him to his ulti-
mate killers; 3) and her parental relationship with the victim.
Id. at 785-86. Each of these aspects of the murder related
directly to the defendant’s identity and her personal choices
and actions. In both cases the defendant ordered the murder,
so that a fact-based inquiry into the defendant’s state of mind
concerning the murder could occur. And at no point in either
case did the court rely on or even discuss the actual manner
in which the defendants’ accomplices murdered their victims,
instead focusing on the defendants’ own actions. This focus
was presumably because the court realized the irrelevance of
events occurring outside of the defendants’ presence or con-
trol to understanding their states of mind. The court’s failure
here to recognize either the defendant’s lack of any contem-
poraneous state of mind about a murder he did not order or
participate in, or the irrelevance of the manner of the murder
in determining Robinson’s state of mind, makes its holding
arbitrary in violation of the Eighth Amendment.

      B.   Claim 8: Ineffective Assistance of Counsel

   A defendant’s Sixth Amendment right to counsel in a crim-
inal trial includes “the right to the effective assistance of
counsel.” McMann v. Richardson, 397 U.S. 759, 771 n.14
(1970). The right attaches at both the guilt and sentencing
phases. Silva v. Woodford, 279 F.3d 825, 836 (9th Cir. 2002).
To prevail on his claim of ineffective assistance of counsel at
sentencing, Robinson must demonstrate that “the performance
of his counsel fell below an objective standard of reasonable-
ness at sentencing and . . . that ‘there is a reasonable probabil-
ity that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.’ ” Correll, 539
F.3d at 942 (quoting Strickland v. Washington, 466 U.S. 668,
694 (1984)). We hold that Robinson has met his burden to
demonstrate that he received ineffective assistance of counsel.

                 1.   Deficient Performance

  Under Strickland we presume that counsel was competent.
Duncan v. Ornoski, 528 F.3d 1222, 1234 (9th Cir. 2008), cert.
2748                  ROBINSON v. SCHRIRO
denied, Duncan v. Ayers, 129 S. Ct. 1614 (2009). Robinson
can “rebut this presumption by showing that [counsel’s] per-
formance was objectively unreasonable under prevailing pro-
fessional norms and was not the product of sound strategy.”
Id. (citing Strickland, 466 U.S. at 688-89). At the time Robin-
son was sentenced, prevailing professional norms imposed a
duty on counsel to adequately investigate, develop, and pre-
sent mitigating evidence in capital sentencing proceedings.
See Summerlin, 427 F.3d at 630; Ainsworth v. Woodford, 268
F.3d 868, 877 (9th Cir. 2001) (“[Investigation] was as crucial
in 1980 as it is today in order to assure individualized sen-
tencing and the defendant’s right to a fair and reliable capital
penalty proceeding.”); ABA Standards for Criminal Justice 4-
4.1 (2d ed. 1980) (“It is the duty of the lawyer to conduct a
prompt investigation of the circumstances of the case and to
explore all avenues leading to facts relevant to the penalty
[phase].”); see also Strickland, 466 U.S. at 690-91.

   [13] In preparing for the penalty phase of a capital trial,
defense counsel has a duty to “conduct a thorough investiga-
tion of the defendant’s background” in order to discover all
relevant mitigating evidence. Correll, 539 F.3d at 942 (quot-
ing Williams v. Taylor, 529 U.S. 362, 396 (2000)); see also
Williams, 529 U.S. at 415 (O’Connor, J., concurring) (counsel
has a duty to make a “diligent investigation into his client’s
troubling background and unique personal circumstances”).
Certain forms of investigation are fundamental to preparing
for virtually every capital sentencing proceeding. At the very
least, counsel should obtain readily available documentary
evidence such as school, employment, and medical records,
see Ainsworth v. Woodford, 268 F.3d 868, 877 (9th Cir. 2001)
(concluding that counsel was ineffective because he failed to
obtain relevant records), and obtain information about the
defendant’s character and background, see Boyde v. Califor-
nia, 494 U.S. 370, 382 (1990) (“[E]vidence about the defen-
dant’s background and character is relevant because of the
belief, long held by this society, that defendants who commit
criminal acts that are attributable to a disadvantaged back-
                      ROBINSON v. SCHRIRO                  2749
ground, or to emotional and mental problems, may be less
culpable than defendants who have no such excuse.” (internal
quotation and citation omitted)). The investigation should also
“include inquiries into social background and evidence of
family abuse.” Summerlin, 427 F.3d at 630 (citing Boyde v.
Brown, 404 F.3d 1159, 1176 (9th Cir. 2005)). Counsel also
has a “duty to investigate and present mitigating evidence of
mental impairment, which includes examination of mental
health records.” Lambright, 490 F.3d at 1117 (quoting Sum-
merlin, 427 F.3d at 630) (internal edits and quotation marks
omitted). Although counsel will typically begin the investiga-
tion by interviewing the defendant, the investigation cannot
end there unless the “defendant has given counsel reason to
believe that pursuing certain investigations would be fruitless
or even harmful.” Strickland, 466 U.S. at 691.

   In Smith v. Stewart, 140 F.3d 1263 (9th Cir. 1998), counsel
“did not perform any real investigation into mitigating cir-
cumstances, even though that evidence was rather near the
surface,” and gave no tactical reasons for his failure to do so.
Id. at 1269. At a post-conviction hearing, Smith’s counsel tes-
tified that he had spoken generally with Smith and with
Smith’s mother but said that he had received no information
that would help with a mitigation defense. Id. We found that
“the record . . . indicates that counsel asked nothing more than
a few generalized questions and conducted none of the real
probing for information that legal praxis assumes and even
demands.” Id. We noted that counsel could have pointed to
Smith’s sociopathic personality, drug history, his “fine set of
family relationships,” and his love and support for his chil-
dren. Id. Because we found no justification for counsel’s fail-
ure to develop this mitigation evidence, we held that counsel’s
performance was ineffective. Id.

   Here, as in Smith, Robinson’s trial counsel engaged in vir-
tually no investigation and presented very little argument at
the sentencing phase of the trial. Robinson’s trial counsel’s
strategy at the sentencing phase was to focus on the state’s
2750                     ROBINSON v. SCHRIRO
failure to prove aggravating circumstances. His sentencing
memorandum addressed only two statutory mitigating circum-
stances — Robinson’s minor role in the murder, and the fact
that the killing was not foreseeable — and no nonstatutory
mitigating circumstances. At the sentencing hearing, counsel
did not call a single witness or introduce any evidence.
Although Roberson said at argument that he could “cite a
whole lot of mitigating factors as far as Fred is concerned,”
he only briefly discussed two nonstatutory circumstances: that
Robinson did not have a history of harming people and that
he was “apparently” a good father. The entirety of Roberson’s
oral argument at the penalty phase consisted of ten pages of
double-spaced transcript.

   Roberson conducted no investigation of Robinson’s family
history; he did not speak with any member of Robinson’s
family; he did not request school, medical, or employment
records; and he did not request a mental health evaluation. By
his own admission, Roberson limited his preparation to inter-
viewing Robinson and asking him whether there were any
witnesses that should be presented. It is not clear from the
record how many times they met or for how long,20 but it is
clear that counsel did not ask any probing questions that
would likely have led to the discovery of mitigating evidence.
See Smith, 140 F.3d at 1269. Additionally, although counsel
said he asked Robinson about potential trial witnesses, he did
not say that he informed Robinson about what would consti-
tute mitigating evidence to enable Robinson to assist effec-
tively in the investigation.

  [14] Roberson attempted to justify his failure to interview
Robinson’s family members by explaining that he thought it
would be futile because some of Robinson’s family members
had testified against him during the guilt phrase of the trial.
This decision was not one a reasonably competent attorney
  20
    Roberson’s personal time sheets and the time sheets he filed with the
court had been shredded before the evidentiary hearing.
                      ROBINSON v. SCHRIRO                  2751
would have made. Robinson had fifteen children, only two of
whom had testified against him. According to counsel, Robin-
son was a good father, making it likely that at least some of
them would have been willing to testify on his behalf. He also
had a wife, ex-wife, parents, and seventeen siblings who not
only could have testified on Robinson’s behalf, but also could
have provided important background information about Rob-
inson’s childhood, providing leads for further investigation.
We can find no reason for counsel to believe that interviewing
these family members would be fruitless.

   Counsel also failed to explore readily available sources of
mitigating evidence concerning Robinson’s potential for reha-
bilitation. If counsel had spoken with prison guards, they
would have informed him that Robinson was a model pris-
oner. Robinson’s good behavior has continued while he has
been on death row; he gets along well with his fellow inmates,
he is visited often by family members, goes to church regu-
larly, and is classified as Level Five-One, the lowest security
level possible for a death row inmate. A psychological evalua-
tion of Robinson would have confirmed that he did not have
a hostile or aggressive personality, but rather was generally
helpful and easy going, and thus demonstrated a potential for
rehabilitation and a low risk of future dangerousness. Counsel
did not provide any tactical explanation for not presenting
evidence of Robinson’s potential for rehabilitation. There was
no reason not to present such evidence, as this was not a situa-
tion where introducing character evidence would have opened
the door for the prosecution to introduce negative character
evidence. Counsel’s decision to forgo any investigation into
Robinson’s potential for rehabilitation, even though such evi-
dence was close at hand, was not strategic and fell below pre-
vailing professional norms at that time.

  [15] Had Roberson conducted an effective penalty-phase
investigation, he would have learned of aspects of Robinson’s
character and background that would have provided classic
mitigation evidence at sentencing, including: Robinson’s
2752                     ROBINSON v. SCHRIRO
impoverished background; his unstable and often abusive
upbringing; his multiple episodes of childhood sexual abuse;
his low intelligence; his personality disorder; his non-violent
nature; and his potential for rehabilitation.21 Instead, counsel’s
limited investigation yielded almost nothing of use. Accord-
ingly, we conclude that Roberson’s performance was defi-
cient.

                            2.   Prejudice

   [16] Prejudice in a capital sentencing proceeding is mea-
sured by “reweigh[ing] the evidence in aggravation against
the totality of available mitigating evidence.” Wiggins, 539
U.S. at 534. Robinson can establish that he was prejudiced by
showing that “there is 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. A
reasonable probability is “less than the preponderance more-
likely-than-not standard.” Summerlin, 427 F.3d at 643.
Rather, it “is a probability sufficient to undermine confidence
in the outcome.” Strickland, 466 U.S. at 694. If there is a rea-
sonable probability that the sentencing judge would not have
imposed death if he was aware of the mitigating circum-
stances, petitioner has been prejudiced and is entitled to relief.
Summerlin, 427 F.3d at 643 (citing Wiggins, 539 U.S. at 537).
“[I]t is not necessary for the habeas petitioner to demonstrate
  21
    The dissent argues that Roberson’s failure to discover this evidence
does not constitute deficient performance in light of the Supreme Court’s
recent decisions in Bobby v. Van Hook, 130 S. Ct. 13 (2009), and Wong
v. Belmontes, 130 S. Ct. 383 (2009). But in each of those cases, defense
counsel presented a significant amount of mitigating evidence, including
evidence of the kind Roberson failed to present here. See Bobby, 130 S.
Ct. at 18; Wong, 130 S. Ct. at 387. Rather, this case is closely similar to
Porter v. McCollum, 130 S. Ct. 447 (2009), where the Court found defi-
cient performance where defense counsel failed to subpoena school, medi-
cal, or military service records or interview any members of the
defendant’s family, and as a result did not learn of his abusive childhood,
military service, substance abuse, and impaired mental health. Id. at 452-
53.
                      ROBINSON v. SCHRIRO                   2753
that the newly presented mitigation evidence would necessar-
ily overcome the aggravating circumstances.” Correll, 539
F.3d at 951-52 (citing Williams, 529 U.S. at 398).

   At the time Robinson was sentenced, Arizona’s death pen-
alty statute required a judge to impose the death penalty if one
or more aggravating circumstances were proved beyond a rea-
sonable doubt and if the mitigation established by a prepon-
derance of the evidence was not sufficiently substantial to
justify leniency. Ariz. Rev. Stat. § 13-703(E) (1988) (current
version at Ariz. Rev. Stat. § 13-751). Thus, at that time, “fail-
ure to present a mitigation defense all but assured the imposi-
tion of a death sentence under Arizona law.” Summerlin, 427
F.3d at 640. In Summerlin, the sentencing court found that
two aggravating circumstances applied to the defendant: the
defendant had a prior felony conviction and committed the
murder in an especially cruel, heinous, or depraved manner.
Id. at 641. Because defendant’s counsel presented no mitigat-
ing evidence, the court was bound under Arizona law to
impose the death sentence. Id. at 640. We concluded “that the
failure of trial counsel to investigate, develop, and present
mitigating evidence at the penalty phase hearing has under-
mined our confidence in the sentence of death imposed by the
trial judge” because, “[h]ad an adequate mitigation strategy
been presented, there is a ‘reasonable probability’ that an
objective sentencing factfinder ‘would have struck a different
balance.’ ” Id. at 643 (quoting Wiggins, 539 U.S. at 537).

   The state argues, and the district court held, that Robinson
was not prejudiced because Robinson failed to establish a
causal connection between the mitigating evidence and the
crime. The district court found: (1) that there was no evidence
that Robinson’s ability to conform his conduct to the law or
to know the difference between right and wrong were signifi-
cantly impaired; (2) that Robinson “did not establish a causal
connection between [his impoverished childhood, sexual
abuse, and unfair treatment] and his offense-related conduct;”
and (3) that there was no connection between his “substan-
2754                  ROBINSON v. SCHRIRO
dard education, low average intelligence, diabetes, and physi-
cal disability” and the crime. The district court concluded that
even if this evidence had been presented at sentencing, it
“would have been accorded little mitigating weight” and
could not outweigh the two aggravating factors. Thus, it was
“not reasonably probable” that the proffered evidence would
have undermined confidence in the outcome of the sentencing
hearing.

   [17] The district court’s holding is contrary to Ninth Cir-
cuit and Supreme Court precedent. The Supreme Court has
expressly rejected the requirement that a defendant establish
an explanatory nexus between the proffered mitigating evi-
dence and the crime. See Smith v. Texas, 543 U.S. 37, 45
(2004) (holding that evidence of a troubled childhood and
limited mental abilities is relevant for mitigation purposes).
We explained the reasoning behind rejecting a nexus require-
ment as follows:

    If evidence relating to life circumstances with no
    causal relationship to the crime were to be elimi-
    nated, significant aspects of a defendant’s disadvan-
    taged background, emotional and mental problems,
    and adverse history, as well as his positive character
    traits, would not be considered, even though some of
    these factors, both positive and negative, might
    cause a sentencer to determine that a life sentence,
    rather than death at the hands of the state, is the
    appropriate punishment for the particular defendant.
    This is simply unacceptable in any capital sentencing
    proceeding, given that “treating each defendant in a
    capital case with that degree of respect due the
    uniqueness of the individual,” and determining
    whether or not he is deserving of execution only
    after taking his unique life circumstances, disabili-
    ties, and traits into account, is constitutionally
    required.
                      ROBINSON v. SCHRIRO                    2755
Lambright, 490 F.3d at 1115 (quoting Lockett v. Ohio, 438
U.S. 586, 605 (1978)). Moreover, “whether counsel’s failure
to present evidence related to antisocial personality disorder
and long-term drug use was prejudicial did not turn on
‘whether those precluded [the defendant] from knowing right
from wrong . . . .’ ” Id. (quoting Smith, 140 F.3d at 1271).
Thus, the district court erred when it relied on Robinson’s
failure to demonstrate a causal connection between the evi-
dence and the crime as its basis for assigning the evidence
minimal mitigating weight.

   The state also argues that it was not reasonably likely that
the sentencing judge would have rendered a different decision
if the mitigating evidence had been presented because the Ari-
zona court already determined in the post-conviction proceed-
ings that the additional evidence was not sufficient to warrant
leniency. First, the state court, like the district court, errone-
ously imposed a requirement that Robinson prove a causal
connection between the mitigation evidence and the crime. It,
therefore, improperly rejected or under-weighted valid miti-
gating evidence. Compounding this problem, the state court
weighed the proffered evidence against two statutory aggra-
vating circumstances: especially cruel, heinous, or depraved
conduct and procuring the commission of the offense by a
promise of something of pecuniary value. We have held
above, however, that the state court arbitrarily applied the
aggravating circumstance of especially cruel, heinous, or
depraved conduct to Robinson. Our confidence in the court’s
imposition of the death sentence has been undermined
because, had the sentencing judge properly evaluated the miti-
gating evidence offered in the evidentiary hearing and
weighed it against the single aggravating circumstance of pro-
curing the offense by a promise of something of pecuniary
value, there is a reasonable probability that the court would
have imposed a sentence other than death. We conclude that
Robinson has established that he was prejudiced by counsel’s
ineffective assistance.
2756                  ROBINSON v. SCHRIRO
   [18] In sum, Roberson’s failure to conduct a thorough
investigation of potential mitigating evidence and to present
an adequate mitigation strategy fell below reasonable stan-
dards of professional conduct for attorneys representing
defendants at a capital sentencing. Robinson was prejudiced
by counsel’s ineffective assistance because it was reasonably
likely that the outcome of sentencing would have been differ-
ent had the state court considered the mitigating evidence in
the proper light against the single surviving aggravating cir-
cumstance. We hold therefore that the district court erred in
finding that Robinson did not receive ineffective assistance of
counsel.

                      IV.   Conclusion

   [19] The district court erred when it held that Robinson’s
claim challenging the application of the especially cruel, hei-
nous, or depraved conduct aggravating circumstance was pro-
cedurally barred. On the merits, we hold that the state court
arbitrarily and capriciously applied the especially cruel, hei-
nous, or depraved conduct aggravating circumstance to Rob-
inson. We also hold that Robinson received ineffective
assistance of counsel in the penalty phase. We conclude that
Robinson is entitled to relief in the form of a new penalty
phase trial. We reverse the district court’s denial of a writ of
habeas corpus as to the penalty phase and remand with
instructions to grant the writ of habeas corpus unless the state
court undertakes resentencing proceedings within a reason-
able time to be determined by the district court.

   REVERSED and REMANDED for issuance of a condi-
tional writ of habeas corpus.
ROBINSON v. SCHRIRO            2757
                      Volume 2 of 2
2758                  ROBINSON v. SCHRIRO
RAWLINSON, Circuit Judge, dissenting:

   I respectfully dissent. The record in this case supports the
district court’s determination that Fred Robinson’s claim chal-
lenging application of the cruelty prong of the “cruel, heinous
and depraved” aggravating factors under Arizona’s death pen-
alty statute is procedurally barred. Although a closer question
is presented by application of the heinous/depraved prongs of
the statutory aggravating factors, the Arizona state courts did
not act arbitrarily and capriciously in applying the hei-
nous/depraved prongs of the statutory aggravating factors
when considering the facts underlying the murder of the
elderly victim. See Styers v. Schriro, 547 F.3d 1026, 1033
(9th Cir. 2008) (“A state court’s finding of an aggravating cir-
cumstance in a particular case — including a de novo finding
by an appellate court that a particular offense is especially
heinous or depraved — is arbitrary or capricious if and only
if no reasonable sentencer could have so concluded.”) (cita-
tion, alterations, and internal quotation marks omitted).
Finally, as recently reiterated by the United States Supreme
Court, any failure by defense counsel to present additional
mitigation evidence did not prejudice Robinson.

   As a preliminary matter, I note that even if the hei-
nous/depraved prongs of the statutory aggravating factors
were arbitrarily applied in determining the sentence to be
imposed, Robinson’s procedural default of his claim involv-
ing the cruelty prong of the statutory aggravating factors
would be sufficient to sustain imposition of the death penalty.
See State v. Gretzler, 659 P.2d 1, 10 (Ariz. 1983). Therefore,
I first examine the question of procedural default of the claim
involving application of the cruelty prong of the statutory
aggravating factors.

  To avoid application of the procedural bar to his claim
challenging application of the cruelty prong of the statutory
aggravating factors, Robinson was required to “present[ ] the
                      ROBINSON v. SCHRIRO                     2759
factual and legal basis for his claim[ ] to the state courts
. . .” Moorman v. Schriro, 426 F.3d 1044, 1056 (9th Cir.
2005) (emphasis added).

   Before the Arizona Supreme Court, Robinson argued gen-
erally that “imposition of the death penalty was in violation
of the statute and of the Constitution of the United States.”
We have not deemed a conclusory argument such as this suf-
ficient presentation of a claim to avoid a procedural bar. See
Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005)
(“In this circuit, the petitioner must make the federal basis of
the claim explicit either by specifying particular provisions of
the federal Constitution or statutes, or by citing to federal case
law.”). Indeed, Robinson’s specific argument regarding the
cruelty prong of the statutory aggravating factors stated:

    Cruelty involves the infliction of pain and distress on
    the victims. The State must show by evidence that
    the victims actually suffered physical or mental pain
    prior to the death. Cruelty is not shown if the evi-
    dence is inconclusive. The State produced no evi-
    dence to show that the victim actually suffered pain
    or distress to the extent necessary to make this find-
    ing. Mr. Hill testified that he was not aware of what
    actually occurred because he was knocked out, not
    shot. Mrs. Hill’s last words, as heard by Mr. Hill,
    concerned a desire that her feet be covered up, not
    a plea for mercy or an expression of fear that she
    was about to be killed. There is no concrete evidence
    to support the State’s theory that Mr. Hill was shot
    first but even if he was, Mrs. Hill was shot almost
    immediately thereafter without waiting a long time
    to be shot.

(Emphasis in the original) (citations omitted). The Arizona
Supreme Court addressed the cruelty factor in the context
presented by Robinson. See State v. Robinson, 796 P.2d 853,
862-63 (Ariz. 1990).
2760                      ROBINSON v. SCHRIRO
   However, in his amended habeas petition, Robinson com-
pletely shifted his argument regarding the cruelty prong.
There, Robinson asserted:

      In Robinson’s case, evidence arguably existed from
      which to conclude that Mrs. Hill suffered, thereby
      putting at issue the applicability of the ‘cruelty’ fac-
      tor to the defendants . . . Significantly, neither Judge
      Bradshaw nor the Arizona Supreme Court made any
      finding that Robinson either “intended” or “reason-
      ably foresaw” that Mrs. Hill would suffer as a result
      of Robinson’s actions. The evidence presented at
      trial or sentencing was that Robinson was not in the
      house at the time of the murder. No evidence was
      introduced at trial and sentencing, excluding the
      hearsay statements from Washington that were later
      disallowed, that Robinson had any knowledge that a
      murder would even take place . . .

(Citations omitted).1

   The majority characterizes the variant argument in the fed-
eral habeas petition as a more detailed theory than the one
Robinson presented to the Arizona Supreme Court. See
Majority Opinion, p. 2737. However, the theory presented in
the federal habeas petition was markedly different than the
theory presented before the Arizona state courts. In the Ari-
zona state courts, Robinson argued that the cruelty prong of
  1
    Acceptance of Robinson’s argument could minimize the importance of
exhaustion in the habeas context. A habeas petitioner could present one
argument to the state courts, and, once that argument is rejected, the peti-
tioner could strategically shift to a new argument in her or his federal
habeas petition. This is reflected by Robinson’s contradictory arguments
before the state court (“The State produced no evidence to show that the
victim actually suffered pain or distress to the extent necessary to make
this finding.”) (emphasis in the original), and in his habeas petition (“In
Robinson’s case, evidence arguably existed from which to conclude that
Mrs. Hill suffered . . .”).
                      ROBINSON v. SCHRIRO                   2761
the statutory aggravating factors was inapplicable because
there was no evidence that the victim actually suffered signifi-
cant pain or distress. In his federal habeas petition, Robinson
argued that the cruelty prong of the statutory aggravating fac-
tors was inapplicable because there was no evidence that Rob-
inson intended or reasonably foresaw that the victim would
suffer. In the state court, Robinson’s argument focused on the
victim’s pain (or lack thereof). In the federal court, Robin-
son’s argument focused on his intent to cause the victim pain
(or his lack of intent). It is more accurate to say that Robinson
presented a different theory in federal court than to say that
he presented a more detailed theory in federal court. More to
the point, the different theory argued in federal court was
never presented to the state courts and is now procedurally
barred. See Moorman, 426 F.3d at 1056 (requiring presenta-
tion of the factual and legal bases of the petitioner’s claim to
the state courts).

   Robinson’s citation to Jeffers v. Ricketts, 832 F.2d 476 (9th
Cir. 1987), rev’d sub nom. Lewis v. Jeffers, 497 U.S. 764
(1990), is singularly unpersuasive. In fact, Robinson’s citation
to Jeffers underscores his emphasis in state court on the
asserted lack of pain to the victim. Immediately after the cita-
tion to Jeffers, Robinson argued that: “An especially cruel
murder involves the senseless or sadistic infliction of great
pain. That is not present in this case and, therefore, the sen-
tence must be supported by heinous and depraved . . .” (Cita-
tion Omitted). Absolutely no mention was made of
Robinson’s lack of intent to cause pain when discussing the
cruelty prong of the statutory aggravating factors. More
importantly, Robinson’s reference to the fact that he was not
inside the residence was made in conjunction with his discus-
sion of the heinous prong of the statutory aggravating factors,
not as part of his challenge to application of the cruelty prong
of the statutory aggravating factors. Fairly read, Robinson’s
brief to the Arizona Supreme Court simply did not raise the
issue he now argues, ie., whether the evidence adequately
established that Robinson had the intent to inflict pain upon
2762                  ROBINSON v. SCHRIRO
the victim, or reasonably foresaw that the victim would suffer
pain. For that reason, I would hold that Robinson’s challenge
to the cruelty prong of the statutory aggravating factors is
foreclosed.

   Because the existence of facts supporting application of the
cruelty prong of the statutory aggravating factors would be
adequate to sustain the death sentence imposed, I would end
my analysis of Robinson’s sentencing challenge with that
conclusion. However, because my colleagues in the majority
have also concluded that the state court’s finding that the vic-
tim was killed in a heinous/depraved manner was arbitrary, I
will comment briefly on that point.

   I note initially that Robinson’s absence from the interior of
the residence does not give him a pass on culpability for the
murder of the elderly victim. See State v. Dickens, 926 P.2d
468, 491-92 (Ariz. 1996) (in banc); see also State v. Nichols,
195 P.3d 207, 213 (Ariz. Ct. App. 2008). ([E]vidence that a
defendant was not present at a crime scene is not, as a matter
of law, directly contrary to or inconsistent with a guilty ver-
dict.”) (citation omitted).

   We should also keep in mind that “[f]ederal habeas review
of a state court’s application of aggravating factors is limited
to determining whether the state court’s finding was so arbi-
trary or capricious as to constitute an independent due process
or Eighth Amendment violation.” Moormann, 426 F.3d at
1053 (9th Cir. 2005) (citation and internal quotation marks
omitted). “We examine whether, viewing the evidence in the
light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt.” Id. (citation and internal quota-
tion marks omitted). When viewed through this prism rather
than through the lens of a post-hoc factfinder, Robinson’s
claim fails.

  Although the Arizona case of State v. Carlson, 48 P.3d
1180 (Ariz. 2002) (in banc) makes this a closer case on the
                      ROBINSON v. SCHRIRO                  2763
merits, I remain of the view that the facts support application
of the heinous/depraved prongs of the statutory aggravating
factors, especially when one considers that the same court that
decided Carlson rejected Robinson’s challenge to application
of the heinous/depraved prongs of the statutory aggravating
factors.

   In Carlson, 48 P.3d at 1193, the Arizona Supreme Court
held that “[t]he heinous and depraved portion of the [statutory
aggravating factors] focuses on the defendant’s state of mind
at the time of the crime. However, the inquiry concentrates on
the defendant’s mental state as evidenced through [his]
actions . . .” (citations omitted).

   Robinson relies on his absence from inside the residence to
defeat application of the heinous/depraved prongs of the statu-
tory aggravating factors. However, the Arizona Supreme
Court did not view Robinson’s absence as determinative when
discussing the heinous/depraved prongs. See Robinson, 796
P.2d at 862. To the contrary, the Arizona Supreme Court
noted that “Robinson provided the murder weapon and trans-
ported [the triggerman] to the home of his common-law
wife’s parents. There is no evidence that [the triggerman]
knew the [victims] or where they lived but for the guidance
of Robinson.” Although Robinson did not commit the actual
murder, the record reflects, and the Arizona Supreme Court
found, that he definitely set the murder in motion. See id. at
864 (noting that “Robinson masterminded the trip). Although
one could disagree with that finding, it is much more difficult
to argue that the finding is arbitrary. Indeed, to the extent
Robinson challenges the Arizona Supreme Court’s interpreta-
tion of the meaning of the statutory aggravating factors, his
challenge is unavailing. See id. at 863 (“As difficult as it may
be to define depravity, the gangland-style action of forcing
two elderly persons to lay face down on the floor, tying them
up, then senselessly shooting them amounts to depraved con-
duct.”) (citation omitted); see also, Langford v. Day, 110 F.3d
1380, 1389 (9th Cir. 1996) (“We accept a state court’s inter-
2764                  ROBINSON v. SCHRIRO
pretation of state law, and alleged errors in the application of
state law are not cognizable in federal habeas corpus . . .”)
(citations omitted).

   The evidence that a year earlier Robinson and two cohorts
had entered Susan’s sister’s home in search of Susan, Robin-
son’s common-law wife, is not so easily discounted. The two
cohorts entered the house with guns and tied up Susan’s sister
and Susan’s niece. Although no one was harmed, the record
reflects that it was only the presence of Susan’s niece that pre-
vented a murder from occurring.

   Finally, the United States Supreme Court has decided two
cases just this month that, in my view, foreclose a determina-
tion that Robinson was prejudiced by any failure of defense
counsel to present additional mitigation evidence during the
sentencing phase of the proceedings. In Bobby v. Van Hook,
No. 09-144, ___ S. Ct. ___, 2009 WL 3712013 (November 9,
2009), a pre-AEDPA case, see id. at *2, the Supreme Court
considered whether Van Hook’s “attorneys were ineffective
during the penalty phase because they did not adequately
investigate and present mitigating evidence . . .” See id. at *1.
Applying Strickland v. Washington, 466 U.S. 668 (1984), the
Supreme Court ruled that Van Hook suffered no prejudice
because “the minor additional [mitigation] details the trial
court did not hear would [not] have made any difference. Van
Hook, 2009 WL 3712013 at *4.

   Similarly, in Wong v. Belmontes, No. 08-1263, __ S. Ct.
___ 2009 WL 3712013 (November 9, 2009), the Supreme
Court found a lack of prejudice where the petitioner accused
his counsel of failing to “dig deeper” for additional mitigating
evidence. See id. at *4.

   In this case, the majority lists the following “classic mitiga-
tion evidence” that defense counsel, in the majority’s view
should have discovered: “Robinson’s impoverished back-
ground; his unstable and often abusive upbringing; his multi-
                      ROBINSON v. SCHRIRO                  2765
ple episodes of childhood sexual abuse; his low intelligence;
his personality disorder; his non-violent nature; and his poten-
tial for rehabilitation.” See Majority Opinion, p. 2751-52.
However, the Supreme Court’s rulings in Van Hook and
Wong clarify that these asserted failings cannot support a
claim under Strickland. Fortuitously, in this case, we do not
have to try to determine whether the asserted deficiencies
would have made a difference in the sentence imposed. In this
case, we know the answer because the same judge who
imposed the sentence of death presided over the postconvic-
tion review proceedings. After hearing all the mitigation evi-
dence that Williams mustered after-the-fact, the sentencing
judge declined to entertain the prospect of changing the previ-
ously imposed sentence.

   At the postconviction review proceedings before the sen-
tencing judge, Williams presented testimony from Juan Gon-
zales, a Corrections Officer at the Florence Correctional
Institution. Officer Gonzales testified favorably regarding
Robinson’s contact with his family and his lack of disciplin-
ary problems. Officer Gonzales testified that Robinson had
not displayed any violent tendencies, was “very easy to work
with,” and got along well with the other inmates, and had
been classified at the lowest level of security since his incar-
ceration. Officer Gonzales informed the court that Robinson
attended church “quite often.” According to Officer Gonzales,
if Robinson were to be placed into the general population, “he
would do well.”

   Dr. Tod Roy, a psychologist, testified that, in addition to
conducting a clinical interview with Robinson, he adminis-
tered the Minnesota Multi-Phasic Personality Inventory test,
intelligence testing, the Rorschach diagnostic test and the
Thematic Apperception test. Dr. Roy also reviewed Robin-
son’s school records and the psychiatric evaluation conducted
by Dr. Eva McCullars.

  In addition, Dr. Roy interviewed Robinson’s father. Dr.
Roy opined that Robinson “had the potential to be rehabilitat-
2766                  ROBINSON v. SCHRIRO
ed”; that he had close family ties; that he had good behavior
while imprisoned, noting that he “carrie[d] the lowest risk sta-
tus that can be applied to anyone on death row”; and that Rob-
inson was not dangerous or likely to re-offend.

   Dr. Roy disclosed test results reflecting Robinson’s low
level of intelligence and educational achievement, and testi-
fied at length about Robinson’s disadvantaged childhood,
describing Robinson as “born into an impoverished environ-
ment of a rural nature . . .” He relayed that Robinson lived in
a segregated community and was once “pulled off a sidewalk
by his aunt to allow a white woman to pass.”

   By far the most traumatic event described by Dr. Roy was
Robinson’s being sodomized by his mother’s boyfriend when
he was a child. Dr. Roy also informed the court about the
heartbreak Robinson experienced when Robinson’s father
publicly repudiated Robinson’s mother and most of Robin-
son’s siblings during divorce proceedings. Finally, Dr. Roy
testified that Robinson’s aunt sexually abused him for a
period of time, and that he was subjected to beatings.

  After hearing all this evidence, the post-conviction review
judge, who was also the sentencing judge, determined that the
evidence presented would not have affected the sentence
imposed.

  Specifically, the post-conviction court ruled:

    Mr. Robinson has been examined and found to have
    no mental [sic] evidence of mental disease per Dr.
    McCullars and an Axis II suggestion of Borderline
    Personality Disorder by Dr. Roy. Nothing in the
    record supports a suggestion that this defendant was
    unaware of the activities at the Hill home on the eve-
    ning of the crime and the court now rejects, and
    would have at sentencing hearings, rejected a sug-
    gestion of Borderline Personality Disorder.
                      ROBINSON v. SCHRIRO                    2767
    This court accepts as true that Mr. Robinson has an
    antisocial personality disorder and is poorly adjusted
    to living in society, but there is nothing in his
    makeup now, nor in the opinion of the experts was
    there anything at the time of the offenses, which
    lessened his ability to differentiate right from wrong
    or to conform his actions with the law . . .

   The court was aware that Robinson was a model prisoner,
but remained unconvinced that his model behavior translated
into a potential for rehabilitation or lack of future danger to
society. The court held that “to the extent any [of the claimed
mitigating factors] may be, or have been present [they] cer-
tainly are/were not sufficient to affect the sentence imposed.”
The court explicitly discussed that although a lack of educa-
tion was shown, no lack of intelligence was shown. Rather,
the post-conviction court reviewed Robinson as “experienced,
street smart and . . . wise enough to plan carefully and act
forcibly for his own well being.” The court reiterated its view
that “[n]one of these matters are, or have been sufficient to
mitigate [Robinson’s] sentence imposed.”

   The state post-conviction court fully considered the mitiga-
tion evidence presented by Robinson. Its subsequent emphatic
ruling that the mitigation evidence would not have affected
the sentence imposed compels a conclusion of no prejudice
under the rationale of Van Hook and Wong. For that reason
and because Robinson’s challenge to the cruelty prong of the
statutory aggravating factors is procedurally barred, I respect-
fully dissent.
