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Cruz v. Ryan

United States District Court, D. Arizona

March 27, 2018

John Montenegro Cruz, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          MEMORANDUM OF DECISION AND ORDER

          Honorable Jennifer G. Zipps, United States District Judge.

         Petitioner John Montenegro Cruz, a state prisoner under sentence of death, has filed a Petition for Writ of Habeas Corpus. (Doc. 28.)[1] Petitioner alleges, pursuant to 28 U.S.C. § 2254, that he is imprisoned and sentenced in violation of the United States Constitution. He seeks expansion of the record, discovery, and an evidentiary hearing in support of two claims in the Petition. (Doc. 38.) Respondents oppose the Petition and the request for evidentiary development. (Docs. 31, 42.) For the reasons set forth below, the Court finds that Petitioner is entitled to de novo review of Claim 2. The Court further finds that an evidentiary hearing will assist the Court in determining whether trial counsel was ineffective for failing to investigate and present mitigating evidence during the penalty phase of Petitioner's trial, as alleged in Claim 2. Petitioner's motion, therefore, will be granted in part. The remaining claims in the Petition are denied.

         BACKGROUND

         Petitioner was convicted and sentenced to death for the 2003 murder of Tucson Police Officer Patrick Hardesty. The following facts concerning the crime are based on the Arizona Supreme Court's opinion in State v. Cruz, 218 Ariz. 149, 155-56, 181 P.3d 196, 202-03 (2008), and this Court's review of the record.

         On May 26, 2003, Tucson Police Department Officers Patrick Hardesty and Benjamin Waters responded to a hit-and-run accident. The investigation led the officers to a nearby apartment occupied by two women and Petitioner, who fit the description of the hit-and-run driver.

         The officers asked Petitioner to step outside and identify himself. Petitioner said he was “Frank White.” Officer Hardesty contacted police dispatch but was unable to verify the identity. He asked Petitioner for identification and Petitioner replied that he had left it in the car.

         As Officer Hardesty and Petitioner approached the car, Petitioner leaned in as if retrieving something, then “took off running.” Officer Hardesty chased Petitioner on foot, while Officer Waters drove his patrol car around the block in an attempt to cut Petitioner off.

         When Officer Waters turned the corner, he saw Petitioner throw a gun on the ground. Officer Hardesty was nowhere in sight. Officer Waters radioed Officer Hardesty that Petitioner had a gun, then got out of his car and drew his service weapon on Petitioner, who stated, “Just do it. . . . Just go ahead and kill me now. Kill me now. Just get it over with.” Officer Waters apprehended Petitioner after a brief struggle.

         Officer Hardesty's body was discovered immediately. He had been shot five times. Two bullets were stopped by his protective vest, two bullets entered his abdomen below the vest, and a fifth bullet entered his left eye, killing him almost instantly. Four of the five shots were fired from no more than twelve inches away.

         The handgun thrown down by Petitioner, a .38 caliber Taurus revolver, held five cartridges. All five cartridges had been fired, and forensic examiners determined that the five slugs, recovered from Officer Hardesty's body and vest, were fired from that Taurus revolver. Five unfired .38 cartridges that matched the cartridges fired from the Taurus were found in Petitioner's pocket when he was apprehended.

         Petitioner was indicted on one count of first-degree murder.[2] The State filed its notice of intent to seek the death penalty alleging a single aggravating factor: “The murdered person was an on duty peace officer who was killed in the course of performing the officer's official duties and the defendant knew, or should have known, that the murdered person was a peace officer.” A.R.S. § 13-703(F)(10) (2003) (currently found at § 13-751(F)(10)).[3] A jury convicted Petitioner of first-degree murder and found the (F)(10) aggravating factor.

         In the penalty phase, Petitioner alleged the following mitigating factors: impaired capacity to appreciate the wrongfulness of his conduct; impaired capacity to conform his conduct to the law; unusual and substantial duress; unforseeability that the acts would cause death; dysfunctional family; deprivation of “necessary nurturing love” from family; family history of mental disorders; posttraumatic stress disorder (“PTSD”); drug addiction; mental state affected by family history of mental disorders, PTSD, and drug addiction; unfavorable impact on Petitioner's family; existence of family support; compliance with prison rules; lack of propensity for future violence; capability to adapt to prison life; and lack of plan to commit the murder. Petitioner asserted that his “upbringing, life-style and subculture all made it far more likely that he would find himself in this position.” The jury did not find the proffered mitigation sufficiently substantial to call for leniency, and determined that Petitioner should be put to death.

         On direct appeal, the Arizona Supreme Court affirmed Petitioner's conviction and death sentence. Cruz, 181 P.3d at 218. The court found that the jury did not abuse its discretion by determining that Petitioner should be sentenced to death:

Although Cruz's early life was certainly not ideal, absent is the type of horrible abuse often found in our capital jurisprudence. Cruz was neither suffering from any significant mental illness nor under the influence of drugs at the time of the crime. The evidence presented on most of these mitigating circumstances was weak, and Cruz established little or no causal relationship between the mitigating circumstances and the crime. Moreover, much of the mitigating evidence offered by Cruz was effectively rebutted by the State.

Id. at 217.

         Petitioner filed a petition for post-conviction relief (“PCR”) in the trial court raising three claims based on alleged deprivations of his Sixth Amendment right to conflict-free counsel and to the effective assistance of counsel during both the guilt and sentencing phases of his trial. (Doc. 31, Ex. W at 23-35.) The PCR court addressed these claims as six distinct claims of Sixth Amendment deprivations by counsel: trial counsel's actual conflict of interest as evidenced by defense counsel's vouching for the credibility of Officer Waters (Claim I (A)), and by not advising the Petitioner of the effect of his failure to take responsibility during allocution (Claim I (B)); trial counsel's ineffectiveness for failing to challenge the credibility of three law enforcement officers in connection with the murder weapon and unspent cartridges (Claim II (A)), and affirmatively vouching for the officers during final argument (Claim II (B)); and counsel's ineffectiveness at sentencing for failing to advise Petitioner to take responsibility for the crime during his allocution (Claim III (A)), and failing to fully investigate certain mitigating factors and present expert testimony regarding the causal connection between the mitigating circumstances and the crime (Claim III (B)). (Doc. 31, Ex. RR at 6, 8-13.)

         The PCR court denied relief without conducting an evidentiary hearing. (Doc. 31, Ex. RR.) The court found Claims I (A) and (B) precluded because Petitioner failed to raise these claims on direct appeal; alternatively the court found the claims lacked merit because counsel's actions represented a sound trial strategy. (Id. at 6-9) (citing Ariz. R. Crim. P. 32.2(a)(3)). The court found that Petitioner failed to raise a colorable claim as to Claims II (A) and (B), finding counsel's actions in connection with these claims constituted trial strategy, and that Petitioner failed to demonstrate a colorable claim of deficient performance or prejudice. (Id. at 11.) The court found that Petitioner failed to raise a colorable claim as to Claim III (A). (Id. at 12.) Finally, the court found Claim III (B) not colorable because trial counsel's choices in connection with mitigation were reasonable and represented sound trial strategy and “none of the factors addressed by defendant, either alone or in connection with other mitigation, would alter the sentence of death as found by a jury.” (Id. at 13-18.) The Arizona Supreme Court denied discretionary review of the petition on May 29, 2013. (Doc. 31, Ex. XX.)

         Petitioner filed his petition for writ of habeas corpus in this Court on May 1, 2014. (Doc. 28.)

         APPLICABLE LAW

         Because it was filed after April 24, 1996, this case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254 (“§ 2254).[4] Lindh v. Murphy, 521 U.S. 320, 336 (1997); see also Woodford v. Garceau, 538 U.S. 202, 210 (2003).

         I. PRINCIPLES OF EXHAUSTION AND PROCEDURAL DEFAULT

         Under AEDPA, a writ of habeas corpus cannot be granted unless it appears that the petitioner has exhausted all available state court remedies. 28 U.S.C. § 2254(b)(1); see also Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509 (1982). To exhaust state remedies, the petitioner must “fairly present” his claims to the state's highest court in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999).

         A claim is fairly presented if the petitioner has described the operative facts and the federal legal theory on which his claim is based. Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 277-78 (1971). A petitioner must clearly alert the state court that he is alleging a specific federal constitutional violation. See Casey v. Moore, 386 F.3d 896, 913 (9th Cir. 2004). He must make the federal basis of the claim explicit either by citing specific provisions of federal law or federal case law, even if the federal basis of a claim is “self-evident, ” Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999), or by citing state cases that explicitly analyze the same federal constitutional claim, Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc).

         In Arizona, there are two procedurally appropriate avenues for petitioners to exhaust federal constitutional claims: direct appeal and PCR proceedings. Rule 32 of the Arizona Rules of Criminal Procedure governs PCR proceedings and provides that a petitioner is precluded from relief on any claim that could have been raised on appeal or in a prior PCR petition. Ariz. R. Crim. P. 32.2(a)(3). The preclusive effect of Rule 32.2(a) may be avoided only if a claim falls within certain exceptions and the petitioner can justify his omission of the claim from a prior petition or his failure to present the claim in a timely manner. See Ariz. R. Crim. P. 32.1(d)-(h), 32.2(b), 32.4(a).

         A habeas petitioner's claims may be precluded from federal review in two ways. First, a claim may be procedurally defaulted in federal court if it was actually raised in state court but found by that court to be defaulted on state procedural grounds. Coleman, 501 U.S. at 729-30. Second, a claim may be procedurally defaulted if the petitioner failed to present it in state court and “the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.” Id. at 735 n.1; see also Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir. 1998) (explaining district court must consider whether the claim could be pursued by any presently available state remedy). Therefore, in the present case, if there are claims that were not raised previously in state court, the Court must determine whether Petitioner has state remedies currently available to him pursuant to Rule 32. See Ortiz, 149 F.3d at 931. If no remedies are currently available, Petitioner's claims are “technically” exhausted but procedurally defaulted. Coleman, 501 U.S. at 732, 735 n.1.

         If there are claims that were fairly presented in state court but found defaulted on state procedural grounds, such claims will be found procedurally defaulted in federal court so long as the state procedural bar was independent of federal law and adequate to warrant preclusion of federal review. See Harris v. Reed, 489 U.S. 255, 262 (1989). It is well established that Arizona's preclusion rule is independent of federal law, see Stewart v. Smith, 536 U.S. 856, 860 (2002), and the Ninth Circuit has repeatedly determined that Arizona regularly and consistently applies its procedural default rules such that they are an adequate bar to federal review of a claim. See Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir.), cert. denied, 135 S.Ct. 710 (2014) (Arizona's waiver rules are independent and adequate bases for denying relief); Ortiz, 149 F.3d at 932 (Rule 32.2(a)(3) regularly followed and adequate); Poland v. Stewart, 117 F.3d 1094, 1106 (9th Cir. 1997) (finding Arizona not “irregular” in application of procedural default rules); Martinez-Villareal v. Lewis, 80 F.3d 1301, 1306 (9th Cir. 1996) (same).

         Nonetheless, because the doctrine of procedural default is based on comity, not jurisdiction, federal courts retain the power to consider the merits of procedurally defaulted claims. Reed v. Ross, 468 U.S. 1, 9 (1984). As a general matter, however, the Court will not review the merits of a procedurally defaulted claim unless the petitioner demonstrates legitimate cause for his failure to exhaust the claim in state court and prejudice from the alleged constitutional violation, or shows that a fundamental miscarriage of justice would result if the claim were not heard on the merits in federal court. Coleman, 501 U.S. at 750.

         Generally, “cause” for a procedural default exists if a petitioner can demonstrate that “some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986); accord Coleman, 501 U.S. at 753. “Prejudice” is actual harm resulting from the alleged constitutional error or violation. Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998). To establish prejudice resulting from a procedural default, a petitioner bears the burden of showing not merely that the errors at his trial were possibly prejudicial, but that they worked to his actual and substantial disadvantage, infecting his entire trial with errors of constitutional dimension. United States v. Frady, 456 U.S. 152, 170 (1982).

         Because the acts of a petitioner's counsel are not external to the defense, they are generally attributable to the petitioner, and negligence, ignorance, or inadvertence on counsel's part does not qualify as “cause.” Coleman, 501 U.S. at 752-54 (citing Carrier, 477 U.S. at 488). However, where the ineffective assistance of counsel amounts to an independent constitutional violation, it can establish cause. Id. at 753-54; Ortiz, 149 F.3d at 932.

         Because “[t]here is no constitutional right to an attorney in state post-conviction proceedings . . . a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.” Coleman, 501 U.S. at 752 (internal citations omitted). Consequently, any ineffectiveness of PCR counsel will ordinarily not establish cause to excuse a procedural default. The Supreme Court, however, has recognized a “narrow exception” to Coleman's procedural default principle: “inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.” Martinez v. Ryan, 566 U.S. 1, 9 (2012). The Supreme Court has declined to extend the Martinez exception to claims of ineffective assistance of appellate counsel. Davila v. Davis, ___ U.S. ___, 137 S.Ct. 2058, 2062-2063 (2017).

         Under Martinez a petitioner may establish cause for the procedural default of an ineffective assistance of trial counsel claim “by demonstrating two things: (1) ‘counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington, 466 U.S. 668 . . . (1984), ' and (2) ‘the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.'” Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012) (quoting Martinez, 566 U.S. at 14); accord Clabourne v. Ryan, 745 F.3d 362, 377 (9th Cir. 2014), overruled on other grounds by McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015); Dickens v. Ryan, 740 F.3d 1302, 1319- 20 (9th Cir. 2014) (en banc); Detrich v. Ryan, 740 F.3d 1237 (9th Cir. 2013) (en banc); Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012).

         The court examines the question of whether an ineffective assistance of counsel claim is substantial under the standard stated in Strickland, 466 U.S. 668. Petitioner must show that “counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment, ” and that counsel's errors “deprive[d] the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. Additionally, not just any error or omission of counsel will be deemed “deficient performance” that will satisfy Martinez; if post-conviction counsel “in the initial-review collateral proceeding did not perform below constitutional standards, ” that attorney's performance does not constitute “cause.” 566 U.S. at 15-16. Most notably, counsel “is not necessarily ineffective for failing to raise even a non-frivolous claim, ” much less a frivolous claim. Sexton, 679 F.3d at 1157 (emphasis added). A court need not address both components of the inquiry, or follow any particular order in assessing deficiency and prejudice. Strickland, 466 U.S. at 697. If it is easier to dispose of a claim on just one of the components, then that course should be taken. Id.

         Finally, a federal habeas court may reject a claim on the merits without reaching the question of exhaustion. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”); Rhines v. Weber, 544 U.S. 269, 277 (2005) (a stay is inappropriate in federal court to allow claims to be raised in state court if they are subject to dismissal under § 2254(b)(2) as “plainly meritless”); Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005) (holding that a federal court may deny an unexhausted petition on the merits when the petition does not raise a colorable federal claim).

         II. STANDARD FOR HABEAS RELIEF

         Under AEDPA, this Court may not grant a writ of habeas corpus to a state prisoner on a claim adjudicated on the merits in state court proceedings unless the state court's adjudication of the claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, ” § 2254(d)(2).

         To determine whether a state court ruling was “contrary to” or involved an “unreasonable application” of federal law under subsection (d)(1), the Court must first identify the “clearly established Federal law, ” if any, that governs the sufficiency of the claims on habeas review. “Clearly established” federal law consists of the holdings of the United States Supreme Court which existed at the time the petitioner's state court conviction became final. Williams v. Taylor, 529 U.S. 362, 412 (2000); Harrington v. Richter, 562 U.S. 86, 102 (2011) (citing Renico v. Lett, 559 U.S. 766, 778-79 (2010)); see Carey v. Musladin, 549 U.S. 70, 76-77 (2006). Habeas relief cannot be granted if the Supreme Court has not “broken sufficient legal ground” on a constitutional principle advanced by a petitioner, even if lower federal courts have decided the issue. Williams, 529 U.S. at 381; see Musladin, 549 U.S. at 77. Nevertheless, while only Supreme Court authority is binding, circuit court precedent may be “persuasive” in determining what law is clearly established and whether a state court applied that law unreasonably. Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003).

         Under the “unreasonable application” prong of § 2254(d)(1), a federal habeas court may grant relief where a state court “identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular . . . case” or “unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams, 529 U.S. at 407. For a federal court to find a state court's application of Supreme Court precedent “unreasonable” under § 2254(d)(1), the petitioner must show that the state court's decision was not merely incorrect or erroneous, but “objectively unreasonable.” Id. at 409; Woodford v. Visciotti, 537 U.S. 19, 25 (2002).

         The Supreme Court has emphasized that “an unreasonable application of federal law is different from an incorrect application of federal law.” Williams, 529 U.S. at 410 (emphasis in original). Under AEDPA, “[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Richter, 562 U.S. at 101. Accordingly, to obtain habeas relief from this Court, Petitioner “must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103; see Frost v. Pryor, 749 F.3d 1212, 1225- 1226 (10th Cir. 2014) (“[I]f all fairminded jurists would agree the state court decision was incorrect, then it was unreasonable. . . . If, however, some fairminded jurists could possibly agree with the state court decision, then it was not unreasonable and the writ should be denied.”).

         With respect to § 2254(d)(2), a state court decision “based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). A “state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). Even if “[r]easonable minds reviewing the record might disagree” about the finding in question, “on habeas review that does not suffice to supersede the trial court's . . . determination.” Rice v. Collins, 546 U.S. 333, 341-342 (2006); see Hurles, 752 F.3d at 778 (explaining that on habeas review a court “cannot find that the state court made an unreasonable determination of the facts in this case simply because [the court] would reverse in similar circumstances if th[e] case came before [it] on direct appeal”).

         As the Ninth Circuit has explained, to find that a factual determination is unreasonable under § 2254(d)(2), the court must be “convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.” Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004), abrogated on other grounds by Murray v. Schriro, 745 F.3d 984, 1000 (9th Cir. 2014). “This is a daunting standard-one that will be satisfied in relatively few cases.” Id.

         The prisoner bears the burden of rebutting the state court's factual findings “by clear and convincing evidence.” § 2254(e)(1). The Supreme Court has not defined the precise relationship between § 2254(d)(2) and § 2254(e)(1), but has clarified “that a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” See Burt v. Titlow, 571 U.S. 12, ___, 134 S.Ct. 10, 15 (2013) (citing Wood, 558 U.S. at 293, 301).

         Significantly, “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 180 (2011); see Murray, 745 F.3d at 998 (“Along with the significant deference AEDPA requires us to afford state courts' decisions, AEDPA also restricts the scope of the evidence that we can rely on in the normal course of discharging our responsibilities under § 2254(d)(1).”). The Ninth Circuit has observed that “Pinholster and the statutory text make clear that this evidentiary limitation is applicable to § 2254(d)(2) claims as well.” Gulbrandson v. Ryan, 738 F.3d 976, 993 n. 6 (9th Cir. 2013) (citing § 2254(d)(2) and Pinholster, 563 U.S. at 185 n. 7). Therefore, as the court explained in Gulbrandson:

[F]or claims that were adjudicated on the merits in state court, petitioners can rely only on the record before the state court in order to satisfy the requirements of § 2254(d). This effectively precludes federal evidentiary hearings for such claims because the evidence adduced during habeas proceedings in federal court could not be considered in evaluating whether the claim meets the requirements of § 2254(d).

Id. at 993-94.

         III. INEFFECTIVE ASSISTANCE OF COUNSEL

         Claims of ineffective assistance of counsel (“IAC”) are governed by the principles set forth in Strickland, 466 U.S. 668. To prevail under Strickland, a petitioner must show that counsel's representation fell below an objective standard of reasonableness and that the deficiency prejudiced the defense. Id. at 687-88.

         To satisfy Strickland's first prong, a defendant “must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'” Id. at 689. With respect to Strickland's second prong, a petitioner must affirmatively prove prejudice by “show[ing] that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.

         The inquiry under Strickland is highly deferential, and “every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Id. at 689; see also Padilla v. Kentucky, 559 U.S. 356, 371 (2010) (“Surmounting Strickland's high bar is never an easy task.”); Cox v. Ayers, 613 F.3d 883, 893 (9th Cir. 2010). When the standards created by Strickland and § 2254(d) apply in tandem, review is “doubly” deferential. Richter, 562 U.S. at 105 (citations and quotations omitted). “[T]he question is not whether counsel's actions were reasonable . . . [but] whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Id. “[E]ven when a court is presented with an ineffective-assistance claim not subject to § 2254(d)(1) deference, a defendant must overcome the ‘presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'” Bell v. Cone, 535 U.S. 685, 698 (2002) (quoting Strickland, 466 U.S. at 689) (internal quotations omitted).

         DISCUSSION

         Petitioner sets forth twenty-seven claims in his habeas petition, along with numerous sub-claims. (Doc. 28.) Respondents concede that eighteen of the claims are properly exhausted in whole or in part. They contend that Claims 1, 5(B), 7-8, and 21-26 are procedurally barred. In his motion for evidentiary development Petitioner seeks expansion of the record, discovery, and an evidentiary hearing on Claims 1 and 2. (Doc. 38.)

         I. CLAIMS 1 AND 2

         In Claim 1, Petitioner alleges that counsel performed ineffectively at sentencing by presenting a denial of responsibility defense which was logically inconsistent with the theory of mitigation, failing to advise Petitioner regarding the risk of such a defense for the sentencing phase, choosing to forego investigation into Petitioner's mental state at the time of the offense, and failing to sufficiently investigate and present all reasonably available mitigation evidence, or to explain the significance of such evidence. (Doc. 28 at 147-161.) Petitioner asserts this claim is unexhausted and procedurally defaulted, but urges the Court to find that the deficient performance of PCR counsel establishes cause to excuse the default under Martinez. Petitioner further asserts Martinez entitles him to develop and present evidence to prove this claim against trial counsel and PCR counsel. Petitioner moves this Court for an evidentiary hearing and evidentiary development of Claim 1. (Doc. 38.)

         In Claim 2, Petitioner asserts that the state court's summary denial of his claim that sentencing counsel performed ineffectively by failing to investigate and present mitigation evidence during the penalty phase constituted an unreasonable application of clearly established federal law and was based on an unreasonable determination of facts under § 2254(d)(1) and (2). (Doc. 28 at 189-199.) Petitioner asserts that he is entitled to de novo review and an evidentiary hearing on this claim. (Doc. 38 at 51.) Petitioner seeks to present the witnesses and evidence proffered in the state court proceedings, and requests leave to conduct the depositions of trial counsel prior to an evidentiary hearing. (Id.) Respondents argue that evidentiary development is foreclosed under Pinholster because the state court addressed the claim on the merits. (Doc. 42 at 2-3.)

         A. Factual and Procedural Background

         1. Mitigation Investigation and Presentation

         On July 29, 2003, the Pima County Public Defender, initially appointed to represent Petitioner, moved to withdraw, citing Petitioner's dissatisfaction and his desire to be represented by attorney Brick Storts. (ROA 33.)[5] The trial court granted the motion and appointed Storts and attorney David Basham to represent Petitioner. (ROA 36.) Counsel assured the court that the defense team met all the qualifications for defense counsel in death penalty cases, as specified in the American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, with the exception of obtaining a mitigation expert, but would “examine the propriety of obtaining a mitigation expert to be involved in the representation of the defendant at such time as same becomes necessary and/or appropriate.” (ROA 40.) Subsequently, counsel filed motions requesting the appointment of mitigation specialist Mary Durand. (ROA 48, 76.) Durand indicated in her declaration that the case could require up to 1500 hours, but counsel advised the court that the defense team would work to minimize those hours. (ROA 76.) On October 6, 2003, the trial court appointed Durand as mitigation specialist and authorized the first 800 hours of mitigation investigation. (ROA 84; RT 10/06/03 at 42.) On October 27, 2003, the court reaffirmed Durand's appointment and set a trial date of September 7, 2004. (ROA 109.)

         At a pre-trial conference on February 2, 2004, counsel represented that he had not received anything from his mitigation expert, and at counsel's request, the trial court ordered the defense to provide the mitigation report to the prosecutor by April 30, 2004. (RT 2/2/04 at 26-27; ROA 172 at 3.)

         At a hearing on March 22, 2004, counsel expressed to the trial court his frustration with Durand in regard to the April 30 deadline for mitigation disclosure. (RT 3/22/04 at 40-41.) Counsel suggested, and the court agreed, that it would be good to hear from Durand directly at the next scheduled hearing. (Id.) Before that hearing occurred, Petitioner provided notice to the court that he would be exercising his right to a speedy trial, while simultaneously seeking to continue the trial date from September 7 to mid-October, recognizing that “all of the required mitigation testimony with the related witnesses cannot be available” by September 7, 2004. (ROA 206.) Petitioner explained that his request for a speedy trial was being made in conjunction with his previously filed motion for change of venue. (Id.)

         Petitioner then filed a motion for a continuance of trial, explaining the continuance was necessary to obtain the necessary mitigation. (ROA 207.) Petitioner anticipated that he would be able to supply the majority of mitigation disclosure by June 18, 2004. (Id.) In his reply, Petitioner explained his strategy for the apparently inconsistent motions:

The Defendant has made it clear that if the motion for change of venue is denied and the efforts to select a jury within Pima County are unsuccessful, the Defendant will not agree to an extended continuance in order to seek an out-of-county venue for purposes of trial. That is, if a fair and impartial Pima County Jury cannot be selected, the Defendant will not agree to a continuance of unreasonable duration in order to allow the court to secure the facilities for an out-of-county trial. . . . [T]he Defendant has made his position clear that he is unwilling to “give it a try” here in Pima county and then delay the trial in order to secure an out-of-county courtroom once it becomes apparent, which it will, that a fair and impartial Pima County Jury cannot be selected.

(ROA 214 at 4.)

         At the hearing held on April 26, 2004, Durand asserted that she could not comply with constitutional mitigation requirements under the June 30 mitigation disclosure deadline, explaining that she usually has eighteen months to complete a mitigation investigation, and that she thought the trial should be set for April, 2005. (RT 4/26/04 at 58-61, 66-67.) Storts informed the court that he had explained to Durand that an April 2005 trial was not acceptable. (Id. at 62.) The court reset the trial to November 16, 2004, with a mitigation disclosure deadline of July 16, 2004. (ROA 219 at 2.)

         On June 7, 2004, Storts informed the court that he would be prepared to make mitigation disclosure by the July 16 deadline, and try the case in November. (RT 6/7/04 at 15-16.) On July 16, 2004, Petitioner filed his mitigation disclosure, disclosing six expert witnesses, and numerous family members and others familiar with Petitioner. (ROA 240.)

         At the next status conference on July 26, 2004, Storts informed the court that Durand had been fired, and that the defense team had put together the mitigation in three weeks. (RT 7/26/04 at 21.) Storts conveyed that Petitioner was “more than satisfied” with the mitigation efforts, and that “[f]or the record, ” since May 1996, he had tried “34 first degree murder cases. Twelve of them were death cases. I have nobody on death row.” (Id. at 22.) He represented that Basham, had tried “at least, I don't know, ten or twelve death penalty cases” in which he was involved in the mitigation aspects “from start to finish.” (Id.) Storts explained to the court that the idea of mitigation investigation in a capital case taking up to a year and a half “just doesn't make a whole lot of sense.” (Id. at 23.)

         Thereafter, the State moved to continue the trial based on insufficiencies in the mitigation disclosure. (ROA 251.) At a hearing on the motion, Basham admitted that their experts had not completed their work. (RT 8/12/04 at 16, 18.) The court set a new disclosure deadline for September 17, 2004, and a new trial date of January 19, 2005. At a second status conference on October 4, 2004, Basham again admitted that he had not fulfilled his disclosure obligations, and the court set a new disclosure deadline of November 1. (RT 10/4/04 at 17.)

         The jury returned a guilty verdict on March 10, 2005. During the next phase of trial, the penalty phase, defense counsel presented testimony from eleven lay and five expert witnesses. First, defense counsel presented testimony from family members and others who knew Petitioner. Father Ricardo Ford, a Catholic priest who knew Petitioner's family, though his recollection was “pretty foggy, ” testified that Petitioner grew up in Barrio Hollywood, a neighborhood with a lot of drug problems. (RT 3/1/05 at 54-55, 58- 59, 63.) Ford recalled Petitioner as a “stressed out” little boy, and described Petitioner's mother's family as “constantly pretty dysfunctional.” (Id. at 63, 67). Ford was aware that Petitioner's maternal uncles had serious drug addiction problems and that Petitioner's mother had been abused by her father and was an extremely nervous person. (Id. at 61, 65). He described Petitioner's mother as very motivated, likeable and a respected nurse, who had good values which she would have passed on to her son, though she had big problems and may have been overdoing medication. (Id. at 65, 71-72.)

         Petitioner's mother, Julie Lingenfelter, testified she was sexually abused at the hands of her own father from a very young age, until she was 15 years old. (RT 3/1/05 at 80, 82, 84.) She developed anorexia and bulimia when she was 10 to 11 years old and attempted to commit suicide three times by age 15. (Id. at 82, 92.) Petitioner's mother was also physically and emotionally abused by Petitioner's father, John Cruz, Sr. (Id. at 97-98, 100-101, 120.) Petitioner witnessed this abuse and was also a victim; Petitioner's mother recalled an incident when Petitioner was eight years old and his father hit him “like 60 to 80 times” with a belt. (Id. at 102-04.) Petitioner's mother was later diagnosed with PTSD and bipolar disorder. (Id. at 106.) Although Petitioner's mother was close to Petitioner when he was a baby, when he got bigger she “didn't really touch him, hug him, kiss him, hold him as much as a mother should have.” (Id. at 92.) Petitioner's parents eventually divorced, and Petitioner's mother allowed Petitioner's father to have custody “with the condition he would not beat him.” (RT 03/01/05 at 110, 121.) When Petitioner was 13 years old, Petitioner's father remarried a 15- or 16-year-old girl who locked Petitioner out of the house and did other abusive things to Petitioner. (Id. at 110-11.) When Petitioner was 15 years old his father suffered a brain aneurysm and died. (Id. at 112.) Petitioner was very depressed and his grades declined. (Id. at 115.) Petitioner's mother sent him to a psychologist, but it didn't really help him. (Id.)

         Petitioner's mother married Steve Lingenfelter in 1986 in Los Angeles, California. (RT 03/01/05 at 109.) Petitioner's mother agreed that she and Steve were willing to give Petitioner a home and provide him with anything he wanted. (Id. at 123.) After living with his father for three years, Petitioner moved to California to live with his mother and Steve. (Id. at 111.) He lived with them until he was 17 years old. (Id. at 117.) Petitioner's mother testified that Petitioner wanted to return to Tucson, so Petitioner was sent to live with his maternal grandmother in Tucson. (Id.) Petitioner's mother acknowledged that Petitioner's adult uncles, Eddie and Luis, who had alcohol and drug problems, also lived with his grandmother. (Id. at 85-87, 118.)

         Susan Alcaraz, Petitioner's maternal aunt, testified that she cared for Petitioner when his mother worked, at times for days, weeks, and months. (Id. at 136.) Susan Alcaraz testified that Petitioner's mother “had a lot of problems” and “couldn't express and show him . . . love”; she never saw any evidence of physical abuse of Petitioner or his mother, although his father was verbally abusive. (Id. at 137, 145, 149-50.) After his father died, Petitioner changed and “started doing marijuana, and so he was a little bit reckless.” (Id. at 145.)

         Albert Montenegro, Jr., Petitioner's cousin on his mother's side of his family, testified that he and Petitioner went to high school together and drank alcohol and used drugs, including marijuana, cocaine, acid, and mushrooms. (RT 3/02/05 at 145, 148.) Albert testified that Petitioner changed after his father died, becoming isolated and staying inside, not wanting to talk to anybody “for years.” (Id. at 148-49.) Albert testified Petitioner had been using meth at the time of the offense, and that Petitioner would get paranoid when he used meth. (Id. at 150.)

         Joe Cruz, Petitioner's paternal uncle, testified that he witnessed no verbal or physical abuse between Petitioner's mother and father, although his brother was kind of a “prankster, ” not knowing when to stop, and upsetting Petitioner's mother. (RT 3/02/05 at 19-20, 31.) Joe was not aware of any abuse of Petitioner by his father, and thought Petitioner's mother treated Petitioner well. (Id. at 32.) Joe Cruz testified that after Petitioner's father re-married, Petitioner's step-mother “would do cruel things” to Petitioner. (Id. at 37.) Joe Cruz agreed that Petitioner's mother and father treated Petitioner well (id. at 32), but testified that it was hard on Petitioner to lose his father, and that he wished Petitioner could have lived with the Cruz side of the family. (Id. at 24, 27, 32.) Since Petitioner's mother had custody, however, the Cruz family had to respect her wishes to have Petitioner live with his grandmother Montenegro in Barrio Hollywood, a neighborhood that “had a reputation of gangs and drug activity.” (Id. at 26-27.)

         Delia Cruz, Petitioner's paternal aunt, testified that Petitioner's mother had problems and was not really there for Petitioner “[p]hysically or mentally, ” but agreed that his mother showed and shared love with him, and tried to instill family values in him. (RT 3/02/05 at 42-43, 58.) In contrast, Petitioner's stepmother was an insecure teenage bride with bipolar disorder, and “wasn't that much of a loving person” towards Petitioner. (Id. at 45, 59.) Delia also described Petitioner's father as a prankster, but agreed that he was a loving father to his son, showed him affection and provided for him, and had good values that he would have tried to impart to his son. (Id. at 41, 56-57.) Delia testified that Petitioner was filled with “so much pain and devastation and . . . just emptiness” following the death of his father. (RT 3/02/05 at 46.)

         Romelia Cruz Holguin, Petitioner's paternal aunt, testified that Petitioner's mother was not “very comforting” and his stepmother “didn't like [Petitioner] very much” and would repeatedly lock him outside of the house, but had no evidence corroborating the allegations that Petitioner's father was abusive. (RT 3/02/05 at 83, 85.) Holguin was aware that the Montenegros “partied a lot, ” and she suspected Petitioner used drugs. (Id. at 87, 92.) She recalled that Petitioner had a lot of problems in school. (Id. at 94.) Holguin described an occasion in May 2003 when Petitioner came to her house and appeared “nervous and edgy” and “paranoid, ” and was limping after jumping out a window to avoid the police. (Id. at 94-96.)

         Tara White, Petitioner's wife, testified that she married Petitioner in 1996, and their son was born in 2000. (RT 3/02/05 at 107-08.) White testified that she and Petitioner smoked marijuana, and Petitioner used cocaine. (Id. at 111.) Petitioner had mood swings and was sad and depressed. (Id. at 112.) A few months after they were married, Petitioner was arrested in Illinois for a marijuana offense. (Id. at 113.) After Petitioner's release from prison in 1998, the couple moved to Zuni, New Mexico, where Petitioner helped to run the White family businesses. (Id. at 115-16.) In 2001, Petitioner started using drugs and “went nuts.” (Id. at 117-18, 129.) Petitioner's use of drugs caused the marriage to disintegrate, and White and Petitioner mutually agreed he should leave. (Id. at 130, 132.) Petitioner moved back to Tucson, leaving White and their eight-month-old son. (Id. at 129-30.)

         Lora Galioto, the mother of one of Cruz's children, also testified. (RT 3/03/05 at 119.) Galioto testified that, during high school, Petitioner lived with his grandmother, used pot and LSD, and dropped out of school. (Id. at 122, 124.) Galioto recalled that the members of his grandmother's household used drugs, mostly cocaine, while Petitioner lived there. (Id. at 125-26.) Even after he moved out of the home, he maintained contact with his drug-using uncles. (Id. at 129.) Galioto testified Petitioner's drug use resulted in his decline and culminated in the termination of their relationship. (Id. at 130-31.)

         In addition to the family witnesses, the defense also presented mitigation testimony from Sergeant Sean Stewart and James Maccarelli. Sergeant Stewart, a sergeant with the Corrections Bureau of the Pima County Sheriff's Department, testified that Petitioner's disciplinary record during his pretrial incarceration revealed nothing indicating Petitioner was a threat to other inmates or staff. (RT 3/02/05 at 69.) Maccarelli, Petitioner's neighbor, testified that he was with Petitioner in April or May 2003 when someone shot at them from a car. (RT 03/04/05 at 5-8.) A few days later they were shot at again. (Id. at 10.) Maccarelli stated that the police did not respond to the first incident and “never took the call” for the second. (Id. at 9, 12.)

         The defense also presented testimony from a number of expert witnesses: a clinical psychologist (Dr. Hector Barillas), a developmental psychologist (Dr. Laura McCloskey), a specialist in addiction medicine (Dr. Mike Austein), a pharmacologist (Dr. Edward French), and the president of a private correctional consulting firm (James Aiken). (RT 3/3/05 at 5-36, 36-118; RT 3/4/05 at 18-106, 106-36, 136-73.)

         Dr. Barillas interviewed Petitioner for over five hours, reviewed records, and conducted interviews of family members and Petitioner's ex-wife. (RT 3/3/05 at 37-39.) Dr. Barillas gave Petitioner a variety of tests to assess intelligence and memory, and to determine whether Petitioner had any kind of brain dysfunction. (Id. at 40-41.) In writing his report, Dr. Barillas reviewed and relied on a report of neuropsychologist Shannah Biggan. (Id. at 40, 47.) Dr. Barillas reported that Dr. Biggan found Petitioner had no serious memory deficits or learning disorders. (Id. at 47, 106.)

         Dr. Barillas assessed Petitioner's history of drug and alcohol abuse as “significant” and “quite extensive, ” starting in his teens after his father's death, becoming worse after the age of 21, and culminating in his use of drugs just 24 to 48 hours before Officer Hardesty's murder. (RT 3/3/05 at 49-50, 56.) Petitioner's use of LSD was extensive; he also used hallucinogenic mushrooms and marijuana, then later on cocaine, and, after the age of 21, methamphetamine. (Id.) Dr. Barillas diagnosed Petitioner with intoxicant abuse disorder. (Id. at 51.) Dr. Barillas opined that factors that may have influenced Petitioner's involvement with drugs included the loss of his father and lack of emotional support from his mother, in addition to negative peer and family influences, specifically from the Montenegro side of Petitioner's family. (Id. at 53, 58-59.) Dr. Barillas commented on Petitioner's childhood environment, stating that Petitioner's father was a poor role model, with a history of marital problems and domestic violence, and that the lack of affection Petitioner received from his mother made him feel “pretty abandoned.” (Id. at 59-61.) Dr. Barillas suggested that Petitioner's poor school performance was attributable to the divorce; there was no clear evidence of learning problems. (Id. at 61- 62.) Additionally, Dr. Barillas stated that being the object of physical abuse is considered a risk factor for violent recidivism and can contribute to a decision to use drugs. (Id. at 63.)

         On cross-examination, Dr. Barillas acknowledged that Petitioner never told him he had been physically abused by his father, that there was some evidence of a close, loving relationship between Petitioner and his father, and that Petitioner's mother was possibly lying about the father's abuse. Dr. Barillas didn't remember if Petitioner reported that there was domestic violence in the home. (Id. at 87-89.) Dr. Barillas testified that Petitioner reported that he was emotionally abused by his father and his mother “wasn't there” for him. (Id. at 112.)

         Dr. Barillas also diagnosed Petitioner with PTSD, stemming from incidents in which he was shot at and beaten by people who wanted to kill him. (RT 3/3/05 at 67, 69.) According to Dr. Barillas, Petitioner's PTSD affects the way he perceives events in his life and causes him to overreact in certain situations, a condition which would be exacerbated by the use of drugs, especially stimulants. (Id. at 73.) Dr. Barillas explained that Dr. Biggan's report contradicted his findings in part, because, in addition to finding no current evidence of depression, Dr. Biggan also found no evidence of anxiety, and PTSD is an anxiety disorder. (Id. at 105-06, 118.) When questioned about Petitioner's ability to conform his conduct to the law, Dr. Barillas testified that he could not specifically render an opinion on Petitioner's state of mind at the time of Officer Hardesty's murder because he never spoke to Petitioner about the crime, but within a larger framework, he opined that Petitioner's ability to conform his conduct to the requirements of the law was impaired. (Id. at 83.)

         Dr. McCloskey, a developmental psychologist, reviewed records, including child custody records from Petitioner's parents' divorce proceedings, interviewed some family members, and spoke with Petitioner the day before she testified. (RT 3/4/05 at 23, 53.) Dr. McCloskey opined that Petitioner was abused psychologically and physically and was neglected from middle childhood on. (Id. at 25.) McCloskey further detailed Petitioner's family history of abuse. She testified that the domestic violence in the Cruz household affected all aspects of Petitioner's life:

Yes, I think the domestic violence, especially that cloud of that-the kind of horrible shadow of that marriage which was so brutal, you know, this woman was hit all the time. John witnessed it. She was thrown on the ground. She was afraid he was going to kill her and the child at one point. It was-it was chronic and it was severe, and I think it did really at some time-this boy-it stunted his growth. Then the lack of really a functional family for him to go back to after the divorce really solidified I think his- his drug use and problems.

(Id. at 44.)

         According to Dr. McCloskey, the point at which Petitioner “snapped” was when his father died. (Id. at 34-35.) Dr. McCloskey explained:

So John was not in a good situation, but this was a stressor he couldn't possibly cope with. He did not have the natur[al] coping skills for and started doing drugs to-to self-medicate. I think the year his father died he told me he took, I don't know, hundreds of acid trips and this is just really a sign because acid does kind of mimic the state of psychosis. So this is kind of a sign of a child, he's very, very disturbed who wants to escape into another world of-of almost schizophrenia.

(Id. at 35.)

         Dr. Austein, an internal medicine and addiction medicine specialist, did not interview Petitioner, but reviewed interviews with Petitioner, documents regarding Petitioner's history, and the reports of Drs. Biggan and Barillas. (RT 3/3/05 at 7-8.) Dr. Austein testified about general principles of addiction, including that drug addiction causes familial, job, and financial problems, and often leads to crime; many addicts would not be involved in crime if it were not for their addiction. (Id. at 16-17.) He testified that drug addiction is often the result of attempts at self-medication; the need to self-medicate can stem from mental illness or lack of self-worth and lack of affection and love from family. (Id. at 13-14, 19-20.) Dr. Austein added that amphetamine use in particular is associated with amphetamine psychosis that may lead to violence and paranoia. (Id. at 21-22.) After reviewing Petitioner's records, Dr. Austein classified Petitioner as a drug addict. (Id. at 23.) Although Dr. Austein could not specifically opine whether Petitioner was under the influence during the murder, or what role drugs played in his conduct on that day, Petitioner's drug history combined with the presence of drugs in his system suggested that, at a minimum, he could have been in a “fog” at the time of the murder as a result of his habitual drug use. (Id. at 33-35.)

         Dr. French, a pharmacologist, testified regarding the effects of certain drugs. Dr. French testified that cocaine is a stimulant that induces the “fight or flight” response. Crystal methamphetamine produces similar behavioral effects and also leads to neurotoxicity, meaning it damages brain cells. (RT 3/4/05 at 113-14, 117.) Dr. French reviewed records from Petitioner's hospitalization after the murder indicating he had a high level of methamphetamine in his system, suggesting he had used within the past two to three days, or even a few hours earlier. Dr. French explained methamphetamine users are “hyper, they can be very jittery. . [and] restless . . . they can also feel anxious, they can become irritable, they can become impulsive, which can lead to bad things.” (Id. at 123-24.) Additionally, “the danger with methamphetamine” was that when using the drug, a person might overreact to certain situations. (Id. at 128.) Finally, Dr. Austein testified that methamphetamine and cocaine users were at their most dangerous when “starting to crash” from a high, because “they are really irritable, they can get really paranoid and then all of a sudden something can set them off. They can be startled, they can be confronted and they can have unpredictable violence.” (Id. at 130.)

         Aiken, a former warden and correctional consultant, testified that from his review of Petitioner's prison and jail records, Petitioner would not be considered predatory, would be categorized as among the least dangerous prisoners, and would remain in strict confinement where he could be effectively managed for the rest of his life. (RT 3/4/05 at 137, 152, 157, 161-62.) On cross-examination, Aiken admitted he had testified similarly on behalf of three to four other defendants in the past year or so, and had given similar testimony in favor of a defendant who had assaulted other inmates and a guard. (Id. at 163.)

         At the end of the penalty phase, the jury unanimously determined to impose a death sentence. (ROA 630.)

         2. Petition for Post-Conviction Relief

         Gilbert Levy was appointed to represent Petitioner in state PCR proceedings. (Doc 31, Ex. G.) Levy retained DiFrank, the mitigation investigator in Petitioner's case, to investigate mitigation for the post-conviction phase.[6] DiFrank concluded that significant mitigation investigative tasks not conducted prior to Petitioner's sentencing still needed to be completed. (See id., Ex. L.) Storts and Basham objected to DiFrank's appointment alleging that there was a conflict of interest created by DiFrank's dual role as the original sentencing mitigation investigator and her renewed role in that capacity for the PCR proceedings. (Id., Ex. O.) Levy initially requested a hearing regarding the conflict of interest allegations and filed a motion to conduct the deposition of Storts but he later withdrew his requests. (Id., Exs. O, S, T.)

         On January 27, 2012, Levy filed an amended PCR petition, alleging that Petitioner's sentencing counsel failed to conduct an adequate mitigation investigation, failed to provide their experts with highly relevant mitigation evidence, failed to present a comprehensive history of drug abuse, failed to show how Petitioner's drug abuse was related to the crime, failed to have mental health experts opine on Petitioner's mental state at the time of the offense, failed to present appropriate expert testimony to explain the causal connection between Petitioner's social history and the crime, and failed to prevent their client from denying responsibility for the crime in front of the jury at sentencing.[7] (Doc. 31, Ex. W at 29-35.) Petitioner supported his petition with statements from family members, the declaration of DiFrank, an affidavit from mitigation specialist Teresa McMahill, and reports from Drs. McCloskey, Barillas, and Cunningham. (Doc. 31, Ex. X.)

         DiFrank explained that her role in the initial mitigation investigation was to interview witnesses and that mitigation records were not shared with her. (Doc. 31, Ex. X: Ex. 4 at ¶5.) DiFrank stated that her ability to identify and develop mitigating factors was severely compromised as a result of her lack of experience, limited responsibilities, lack of coordination with incoming records, and unrealistic time constraints. (Id. at 3.) During her investigation in the post-conviction phase she contacted family members, some of whom had not been contacted during the initial mitigation investigation, and obtained information that Petitioner's trial counsel had failed to discover. (Doc. 31, Ex. X: Ex. 4 at ¶ 11, Exs. 20-33, 36-37.)

         Mitigation specialist McMahill summarized the new evidence DiFrank gathered that would have been helpful to Petitioner at sentencing:

Most significantly with regard to records, the post-conviction relief mitigation specialist retrieved the voluminous mental health file that existed on Mr. Cruz's mother. These records outlined his mother's long history of serious and debilitating mental illness, which undoubtedly adversely affected Mr. Cruz as he was growing up and about which the jury heard very little.
From the interviews the . . . mitigation specialist conducted, she learned that Mr. Cruz's father and paternal grandfather were cruel and sadistic; his mother habitually abused drugs when he was a young boy and snorted cocaine in his presence; his maternal grandfather sexually abused Mr. Cruz's cousin (as well as Mr. Cruz's mother); several relatives had serious drug and/or alcohol problems; the extent of the drug dealing and use that occurred in Mr. Cruz's maternal grandmother's home-where he frequently lived-was much greater than revealed at trial; a number of relatives suffered from mental illness; Mr. Cruz was physically abused by his mother-not just his father; his mother became very promiscuous after divorcing Mr. Cruz's father, and several relatives were aware of the abuse [of] Mr. Cruz and his mother by his father. At trial, the sole source of information about this abuse was Mr. Cruz's mother, and her testimony was discredited because there was no corroboration.

(Doc. 31, Ex. X: Ex. 16 at 7-8.) Additionally, interview notes and declarations from family members suggested that the family had experienced instances of police brutality. (Id., Ex. X: Ex. 23-25.)

         Petitioner also submitted a report from Dr. McCloskey. (Doc. 31, Ex. X: Ex. 38.) Dr. McCloskey reviewed the interviews and statements of Petitioner's family that DiFrank had obtained during post-conviction proceedings. (Id. at 2.) Dr. McCloskey opined that the new interviews corroborated earlier reports of domestic violence and abuse of Petitioner by his father. (Id.) Dr. McCloskey noted that the “child abuse descriptions in the current report add different perpetrators and different types of maltreatment; the severity and duration are also worse than revealed several years ago.” (Id. at 3.) Dr. McCloskey concluded that Petitioner “was abused and abandoned at an early age; he was the victim of physical assaults from his father, stepfather, and maternal uncles, and he was socialized into a world of drug dealing while living with his uncles.” Dr. McCloskey stated that the “extraordinary neglect and abuse explains how [Petitioner's] life became embedded in criminal activities and how violence was the main currency of the world in which he lived. . . . A raft of traumatic events and bad influences compounded to shape John Cruz's development. The choices John Cruz made emanated from this history, and in part were determined by forces well beyond his control for much of his early life.” (Id. at 13.)

         Dr. Barillas reviewed the new information provided to him by PCR counsel and DiFrank, and concluded that the information raised the question of a possible Attention Deficit/Hyperactivity Disorder (ADHD), which was not addressed during the direct testimony of Dr. McCloskey, and, if found, could make a link between the impulsivity associated with this problem and its high correlation with intoxicant abuse problems in adolescence. (Doc. 31, Ex. X: Ex. 39 at 2.) Dr. Barillas noted that he was not asked about Petitioner's mental state at the time of the offense during his testimony at trial, but was now of the opinion that Petitioner was probably under the influence of cocaine and amphetamine at or shortly before the time of his arrest. (Id.) Thus, “his judgment was probably impaired to conform his conduct to the requirement of the law.” (Id.) Dr. Barillas concluded that Petitioner “had symptoms and conditions that were not self-evident at the time of trial.” (Id. at 3.)

         Dr. Mark Cunningham, a clinical and forensic psychologist, analyzed 27 different developmental and environmental risk factors based on the prevailing developmental perspective in 2005 that adult outcome is a function of the interaction and balance of risk factors and protective factors in childhood. Dr. Cunningham explained in his report that as risk factors increase, and protective factors decrease, there is an increasing probability of adult maladjustment, substance abuse and dependence, personality disturbance, delinquency, criminality, and criminal violence. Dr. Cunningham identified several risk factors Petitioner was exposed to as a child, including: (1) transgenerational family dysfunction and hereditary predisposition to psychological disorder, personality pathology, and alcohol and drug abuse and dependence; (2) neurodevelopmental issues including probable fetal substance exposure, learning problems in school, chronic stress in childhood, and head injuries; (3) parenting and family influence characterized by Petitioner's mother's psychological disorders and substance abuse, parental conflict and neglect, domestic violence and family modeling of aggression and crime; and (4) childhood onset of alcohol and drug abuse, teen onset of psychological disorders, and cocaine and methamphetamine abuse, with accompanying paranoia and psychological decompensation at the time of the offense. (Doc. 31, Ex. X: Ex. 41 at 12-13.) Dr. Cunningham explained that the jury was deprived of critical evidence regarding “the logical nexus between the adverse developmental factors in [Petitioner's] background and the capital offenses.” (Id. at 52.)

         In response, the State argued that DiFrank's level of experience and skill and overall competency for mitigation work were well documented, and that Petitioner was responsible for any time limitations placed on the investigation and preparation of the case in mitigation. (Doc. 31, Ex. LL at 23.) The State supported these assertions with the affidavits of trial counsel. (See id.) Basham represented that he, together with Storts, had handled over 250 homicide cases, including at least 50 capital cases and that “[i]t was the consistent demand of [Petitioner] to exercise his right to a speedy trial.” (Doc. 31, Ex. NN: Ex. K at 2, 4.) Storts objected to the petition, stating it contained so many false statements and libelous comments they were too numerous to list, and were “not worthy” of a detailed response. (Doc. 31, Ex. NN: Ex. J at 3-4.)

         The State also argued that much of the evidence PCR counsel presented was cumulative, and thus counsel was not ineffective for omitting the evidence. The State argued that there was no prejudice because Petitioner could not establish a link between any of the cumulative evidence and Officer Hardesty's murder and because he failed to make a connection between his conduct and any history of substance abuse given that his abilities to reason, make decisions, control his behavior, and engage in acts of self-preservation remained fully intact. (Id. at 23-32.) The State also asserted that counsel was not ineffective for omitting evidence of an untreated learning disability and possible diagnosis of ADHD because none of the experts recommended further investigating these possibilities, and Dr. Barillas had testified there was nothing to suggest that Petitioner had a learning disability. (Id. at 28.) The State attributed the failure to suggest a possibility of a learning disability or ADHD to both Petitioner and his mother because neither mentioned Petitioner's learning difficulties. (Id. at 29.) Additionally, the State argued that the evidence would not have changed the verdict because there was no clear connection between the learning disability and possible ADHD, and the offense. The State also argued that evidence of past instances of police brutality experienced by the family was known to the family, and conceivably known to Petitioner, but not shared with his counsel. Regardless, the State argued it would not have changed the verdict.

         Without holding an evidentiary hearing, the PCR court dismissed Petitioner's sentencing IAC claim relying extensively on Basham's and Storts' affidavits. (Doc. 31, Ex. RR at 14-15.) The PCR court identified the relevant Strickland IAC analysis, and found that counsels' choices in connection with mitigation were reasonable because they were “[f]aced with a client charged with the murder of a police officer in the line of duty, a client who declined to acknowledge responsibility for any action other than ‘running away, ' and who maintained his right to a speedy trial, coupled with his own knowledge of his background, experiences and family.” (Id. at 14.) The PCR court had prefaced its ruling by identifying “some of its salient considerations, including a finding that Storts and Basham had handled over 250 homicide cases and at least 50 capital cases, and that Storts engaged DiFrank after terminating Durand because Durand had not completed mitigation and ignored deadlines for disclosure, and because her “apparent method was to take as much as a year and a half on a case and [Petitioner] ‘wanted to get on with his trial.'” (Id. at 3.) The Court acknowledged DiFrank's declaration which indicated “that she ‘…did not feel that [she] had sufficient time to complete . . . assignments. . .' and attributed the desire to ‘. . . take the case to trial as quickly as possible. . .' to trial defense counsel.” (Id. at 15.) However, relying on Basham's affidavit, the PCR court rejected DiFrank's conclusion that trial counsel was responsible for rushing the case to trial and found that “[i]n fact, ‘It was the consistent demand of Defendant Cruz to exercise his right to a speedy trial.” (Id. at 15.) The PCR court further found:

In maintaining his right to a speedy trial, defendant placed himself in the position of cutting short the mitigation investigation, a time constraint of which he now complains. Further, the defendant himself would have been aware of the majority of the newly-discovered facts about his childhood, family history, and abuse at the time of his decision to exercise his right to a speedy trial. Defendant certainly could have informed trial counsel of the existence of such evidence.

(Id. at 15.) The PCR court also found that prejudice was lacking under Strickland because Petitioner's new mitigation evidence was cumulative. Additionally, the PCR court found that, even if the evidence was not merely cumulative, “[g]iven the weight to be afforded the ‘missing' mitigators, as against the aggravating factor of the murder of a law enforcement officer, defendant can demonstrate no prejudice.” (Id. at 17.) The PCR court further concluded that “none of the factors addressed by defendant, either alone or in connection with other mitigation, would alter the sentence of death as found by the jury.” (Id. at 17.) The PCR court emphasized the Arizona Supreme Court's consistency in declining to give much weight to factors distant in time from the crime, unrelated to the crime, or that suggest an inability to appreciate the wrongfulness of the conduct. (Id.)

         The Arizona Supreme Court denied Petitioner's request for review of the PCR court's decision. (Doc. 31, Ex. XX.)

         B. Claim 1: New Evidence

         In Claim 1 Petitioner presents new allegations and proffers new evidence in support of an expanded claim of deficient performance and prejudice as a result of trial counsels' ineffectiveness at sentencing. (Doc. 28 at 97-137.) The new allegations are as follows:

         (1) Counsel encouraged Petitioner to assert a denial of responsibility defense despite knowing Petitioner had amnesia for the events surrounding the offense and without explaining to Petitioner that this strategy was untenable and would greatly increase the risk of a death sentence. (Doc. 28 at 98-99.)

         (2) Counsel failed to investigate Petitioner's mental state at the time of the offense. (Id. at 99.)

         (3) Petitioner's mother consumed alcohol while pregnant with Petitioner, Petitioner has cognitive defects consistent with a neurodevelopmental disorder, including Fetal Alcohol Effects, and Petitioner's cognitive defects manifested in elementary school when he was diagnosed with a learning disability and placed in special education. (Id. at 99-100.)

         (4) Dr. Biggan reviewed her billing records and concluded that she had spent no time in consultation with Petitioner's counsel regarding the implications of the testing results described in the report she prepared prior to sentencing in 2004. She reviewed her 2004 report and concluded that Petitioner presents with neurological impairments and brain damage, though not severe. Dr. Biggan reviewed evidence of Petitioner's learning disability and evidence that Petitioner's mother drank alcohol during pregnancy, and stated that this evidence warranted further exploration by a neuropsychologist. Dr. Biggan indicated Petitioner's cognitive functioning would have the tendency to significantly degrade and ripen into significant neuropsychological deficits under highly stressful conditions, and Petitioner's amnesia suggests severe cognitive degradation and brain dysfunction at the time of the offense. (Id. at 101-05.)

         (5) Petitioner's early onset substance abuse and inability to overcome addiction relate to the fact he was born with an untreated neurodevelopmental disorder in combination with the fact that since childhood he has suffered from clinical depression. Further, prior to his addiction to methamphetamine-an addiction he had resisted until early 2002-Petitioner had no reputation for aggressiveness or violence, but lost control of his life after becoming addicted to meth. (Id. at 106-09.)

         (6) Neuropsychological testing conducted by Dr. Kenneth Benedict in 2014 indicated that Petitioner's cognitive deficits, identified both in Dr. Benedict's testing and the earlier testing of Petitioner, were strongly indicative of brain damage, and are associated with and compounded by problems that are developmental in nature, i.e., Petitioner was born with them. Dr. Benedict also concluded that Petitioner had compounded his neurodevelopmental defects with acquired brain injury from other trauma, e.g., polysubstance abuse and his history of psychosocial trauma. Dr. Benedict concluded that Fetal Alcohol Effects are among the causes involved in Petitioner's historical and present pattern of neurodevelopmental and cognitive problems. Dr. Benedict also concluded that Petitioner's functioning deteriorates when he is confronted with emotional arousal. He determined, to a high degree of certainty, that under conditions of emotional arousal, Petitioner would display rapid deterioration in planning, judgment, the ability to alter behavior based on incoming information from his environment, and his capacity to regulate impulses. Significant neuropsychological impairments would present with “absolute certainty” if emotional arousal was combined with the presence of psychoactive substances. Dr. Benedict also found that, in the context of Petitioner's disturbed psycho-social environment, Petitioner's pre-existing brain impairment contributed to his educational failure, depression, drug abuse, and difficulty in overcoming addiction. Considering Petitioner's brain dysfunction, substance use, and sleep deprivation at the time of the offense, Dr. Benedict concluded it was “highly probable” that Petitioner would have difficulty recalling specifics related to the crime or had complete amnesia for the time period surrounding the crime. (Id. at 109-16.)

         (7) After reviewing evidence demonstrating Petitioner's mother consumed alcohol during pregnancy and school records that demonstrated Petitioner was identified as learning disabled, Dr. Barillas concluded that all of the prior opinions she offered in this case, including those presented to the jury, were incomplete, inaccurate, and ultimately unreliable. Dr. Barillas found that the new evidence suggested a strong possibility that Petitioner may have suffered from a much more severe form of childhood neglect which, combined with a neurodevelopmental disorder, may have contributed to Petitioner's suffering from a clinical depression. (Id. at 116-21.)

         (8) Dr. Cunningham confirmed that, in 2004, he was not asked to review Dr. Biggan's 2004 neuropsychological report. Having now reviewed that report in addition to evidence that Petitioner's mother drank during pregnancy, Dr. Cunningham concludes that had he been provided with this evidence, he would have alerted PCR counsel that Petitioner suffers from brain dysfunction and abnormality that could be associated with Fetal Alcohol Effects. (Id. at 121-22.)

         (9) Dr. Robert Smith, a psychologist, interviewed Petitioner in 2014 and concluded that he suffered from a history of severe childhood trauma, persistent depressive disorder, hallucinogen use disorder, stimulant use disorder, alcohol use disorder, and neurocognitive impairment. Dr. Smith concluded that, at the time of the offense, these disorders were sufficient to significantly impair his emotions, cognition, perceptions, and behavior at the time of the offense. (Id. at 122-34.)

         (10) Finally, Petitioner presents evidence that counsel's representation to the state court regarding their homicide and capital case experience were admittedly untrue, that Basham had relevant capital case sentencing experience in only two cases, in which his participation was minimal, and that Storts had never participated in a capital sentencing proceeding. (Id. at 134-37.)

         C. Claim 1: Procedural Status

         Because Martinez applies only to procedurally defaulted IAC claims, the Court must first determine whether Claim 1 has been procedurally defaulted. The parties dispute whether this claim was exhausted in state court. Petitioner argues that Claim 1, presented only in part to the state courts, relies on “new and substantial supporting evidence” which dramatically changes the claim as presented in state court, rendering Claim 1 unexhausted and procedurally defaulted. (See Doc 28 at 144; Doc. 37 at 105) (citing Dickens, 740 F.3d at 1319). Respondents contend that Claim 1 consists of four sub-parts: two that are unexhausted and procedurally defaulted, and two that were exhausted in Petitioner's state post-conviction proceedings. The Court disagrees, in part, with both arguments. As discussed below, Claim 1 is properly considered as a single IAC claim with a unified legal theory, and, despite the new allegations and evidence presented for the first time in this Petition, it is fully exhausted and not procedurally defaulted.

         Claims with separate identities and separate elements of proof are unrelated for purposes of exhaustion. See Kimmelman v. Morrison, 477 U.S. 365, 374-75 (1986) (noting the difference between substantive claim underlying an IAC claim and the IAC claim itself, stating “the two claims have separate identities and reflect different constitutional values”). In the context of IAC claims, each unrelated allegation of counsel's ineffectiveness is generally considered a separate claim for purposes of exhaustion. Gulbrandson, 738 F.3d at 992 (citing Moormann v. Schriro, 426 F.3d 1044, 1056 (9th Cir. 2005)). Although all IAC claims are analyzed under the two-prong test established in Strickland, this shared analytical framework does not necessarily establish that the claims are related. See, e.g., Moormann, 426 F.3d at 1056 (petitioner's claim that “counsel was ineffective for failing to investigate and present a viable defense” did not fairly present the more specific claim that counsel was ineffective in “presenting the insanity defense”).

         In this case, Respondents have identified four “sub-claims” in Claim 1, and analyzed the procedural status of each separately as follows:

Claim 1(A): Ineffective assistance of counsel for contesting guilt during the guilt phase of trial, where this defense “carries strong risks for imposition of a death sentence in the penalty phase” (Doc. 28, at 147-49, 188);
Claim 1(B): Ineffective assistance for presenting a non-responsibility defense at the guilt phase without adequately advising Cruz of the potential effect of this defense at sentencing (Id. at 149-51, 188);
Claim 1(C): Ineffective assistance for failing to adequately investigate Cruz's mental state at the time of the offense (Id. at 151-56, 185-88);
Claim 1(D): Ineffective assistance for failing to investigate and present all reasonably available mitigation evidence and to explain the significance of such evidence (Id. at 156-70, 171-84).

         The Court finds, however, that all of the allegations in Claim 1 represent one related claim of ineffective assistance of counsel alleging a failure to investigate and present mitigation evidence. These sub-claims “are not separate claims of ineffective assistance of counsel, ” rather, all of the deficiencies in counsel's performance as described in the sub-claims arise from counsel's sentencing-phase mitigation strategies and the reasonableness of those strategic decisions that result in a “singular form of prejudice”-“a single claim that seeks relief for counsel's failure to investigate and present mitigation.” (See Doc. 37 at 9-10.) (emphasis in original). These sub-claims share a single identity and common elements of proof: whether counsel's strategy resulted in a failure to investigate and present mitigation and was therefore deficient, and whether there was a reasonable probability that the mitigation evidence would have changed the outcome. Cf. Williams, 529 U.S. at 397-98 (when measuring prejudice in a capital case for failure to present mitigation, courts must “evaluate the totality of the available mitigation evidence”). Thus, for purposes of this exhaustion analysis, the Court examines Claim 1 in its entirety, as a single ineffective assistance of sentencing counsel claim alleging a failure to investigate and present mitigation.

         Ordinarily, Martinez would not apply to a claim, such as Claim 1, that was adjudicated on the merits in state court. See Detrich, 740 F.3d at 1246. As discussed in more detail below, however, the IAC at sentencing claim that the PCR court reviewed was in a weaker evidentiary position than Petitioner proposes in support of Claim 1in this Court. (Doc. 28 at 97-137.) Petitioner asserts that, to the extent the claim is rendered unexhausted by new evidence, the lack of exhaustion is due to PCR counsel's ineffectiveness, and therefore any default is excused under Martinez and the Ninth Circuit's decision in Dickens. (Doc. 28 at 144.) The Court considers the new evidence Petitioner proffers in support of Claim 1 for purposes of making this determination. See Dickens, 740 F.3d at 1319 (“[A] district court may take evidence to the extent necessary to determine whether the petitioner's claim of ineffective assistance of trial counsel is substantial under Martinez.”).

         D. Fundamentally Altered Claim

         A claim has not been fairly presented in state court if new evidence fundamentally alters the legal claim already considered by the state court or places the case in a significantly different and stronger evidentiary posture than it was when the state court considered it. See Dickens, 740 F.3d at 1318-19 (citing, inter alia, Vasquez v. Hillary, 474 U.S. 254, 260 (1986); Aiken v. Spalding, 841 F.2d 881, 883 (9th Cir. 1988); Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988)).

         In Dickens, the petitioner argued in state court that his sentencing counsel provided ineffective assistance by failing to direct the work of a court-appointed psychologist and to adequately investigate the petitioner's background. Dickens, 740 F.3d at 1317. These general allegations did not identify any specific conditions that sentencing counsel failed to uncover. The state court denied the claim on the merits, finding that counsel's performance was not deficient and that the petitioner had failed to demonstrate he was prejudiced. Id. In his federal habeas petition, however, the petitioner “changed his claim to include extensive factual allegations suggesting Dickens suffered from FAS [Fetal Alcohol Syndrome] and organic brain damage.” Id.

         In determining whether the petitioner's claim was unexhausted, the court in Dickens found that factual allegations not presented to a state court may render a claim unexhausted if the allegations “fundamentally alter” the legal claim presented and considered by the state courts. Id. at 1318 (citing Vasquez, 474 U.S. at 260). New evidence fundamentally alters a claim if it places the claim in a significantly different and stronger evidentiary posture than it had in state court. Dickens, 740 F.3d at 1318 (emphasis added) (citing Aiken, 841 F.2d at 883, 884 n.3).

         Applying these principles, the court found that Dickens's “new evidence creates a mitigation case that bears little resemblance to the naked Strickland claim raised before the state courts.” Id. at 1319. It further noted that the claim urged in state court only “generally alleged that sentencing counsel did not effectively evaluate whether Dickens ‘suffer[ed] from any medical or mental impairment'” and that specific conditions like FAS and organic brain damage placed the claim in a “significantly different” and “substantially improved” evidentiary posture. Id. Having determined that Dickens's fundamentally altered IAC sentencing claim was unexhausted and procedurally barred, the court remanded for consideration of cause and prejudice under Martinez. Id. It further instructed that § 2254(e)(2) did not bar the district court from hearing new evidence to determine the existence of cause and prejudice.

         Under Dickens, the question of whether Martinez applies to Claim 1 hinges on whether the claim, as presented in these federal proceedings, is fundamentally different from the one presented in state court. The new evidence Petitioner proffers to this Court is indeed “stronger.” It does not, however, place Petitioner's case in a significantly different or stronger evidentiary posture than it was when the state courts considered it, because, unlike the new evidence presented in Dickens, Petitioner did present to the state courts evidence of specific conditions and mental impairments, as well as his mental state at the time of the offense.

         To determine if Claim 1 is fundamentally different than the IAC claim presented in state court, the Court compares the IAC claim raised in his PCR to Claim 1 of Petitioner's federal habeas petition. In his PCR, Petitioner presented evidence obtained through interviews, records and expert reports that helped to establish how “forces well beyond [Petitioner's] control for much of his early life” contributed to his drug addiction-including evidence corroborating and elaborating on the abuse witnessed and experienced by Petitioner as well as the possibility that Petitioner suffered from a learning disorder (ADHD) that could be related to his intoxicant abuse and impulsivity. (Doc. 31, Ex. X: Ex. 38 at 13.) Petitioner provided evidence suggesting that he likely used cocaine and amphetamine at or shortly before the time of the offense, which impaired his judgment and ability to conform his conduct to the requirements of the law. Petitioner also presented evidence that he was at risk for neurodevelopmental issues including probable fetal substance exposure, learning problems in school, chronic stress in childhood, and head injuries, and alleged that there was a logical nexus between these adverse developmental factors and the capital offenses.

         Petitioner now seeks to expand the record to include evidence indicating that: (1) he suffers from fetal alcohol exposure, (2) he suffers from neuropsychological and cognitive deficits, (3) brain impairments contributed to his drug addiction, (4) his brain impairments would have been exacerbated by stressors at the time of the offense, and (5) he was under the influence of cocaine and methamphetamine at the time of the offense. The Court agrees with Respondents that, while Petitioner presents new factual allegations that he suffered from additional specific medical or mental impairments, he also presented evidence of specific conditions to the state court from which the same conclusions could be drawn-essentially, that factors outside Petitioner's control contributed to his drug use, and his impairments were exacerbated leading up to the offense. Accordingly, while Petitioner's allegations are somewhat strengthened by the evidence that Petitioner suffered from the specific conditions of fetal alcohol exposure and cognitive impairments that were not uncovered by trial counsel, this claim is not “significantly different” than what he presented to the state courts.

         Accordingly, the Court finds the IAC claim presented in Claim 1 is exhausted, but not fundamentally altered by the new evidence presented in support of the claim, and thus it does not fall under the umbrella of Martinez. This Court reviews Petitioner's ineffective assistance of sentencing counsel claim under the strict evidentiary standards of AEDPA, which, subject to the exceptions set forth in § 2254(e)(2) and discussed below, precludes further evidentiary development and limits habeas review to the record made in the state court. See Pinholster, 563 U.S. at 180-186. Accordingly, Petitioner's motion to expand the record, to conduct discovery, and for an evidentiary hearing on Claim 1 is denied, with the exception of granting Petitioner's motion to expand the record in part as to Exhibits 1-27 attached to Petitioner's Motion for Evidentiary Development. The parties agree these exhibits were part of the state court record that Respondents were unable to provide. Moreover, Petitioner does not assert, in Claim 1, that the state court's adjudication of this claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, ” § 2254(d)(2). Thus, Petitioner has not established he is entitled to relief under AEDPA as to Claim 1, and the Court denies this claim.

         E. Claim 2

         Petitioner does assert in Claim 2 that the state court's denial of his claim that sentencing counsel performed ineffectively by failing to investigate and present mitigation evidence during the penalty phase constituted an unreasonable application of clearly established federal law and was based on an unreasonable determination of facts under § 2254(d)(1) and (2). (See Doc. 28 at 189-199.) Because Petitioner's IAC at sentencing claim, as alleged in Claim 2, was denied on the merits in state court, this Court's review is limited to the state court record and Petitioner is entitled to evidentiary development only if his claim satisfies § 2254(d). Pinholster, 563 U.S. at 180-81, 185; see, e.g., Henry v. Ryan, 720 F.3d 1073, 1093 n.15 (9th Cir. 2013) (explaining that Pinholster bars evidentiary hearing unless petitioner satisfies § 2254(d)). Accordingly, before taking up Petitioner's motion for evidentiary development, the Court first addresses whether Petitioner has cleared the § 2254(d) hurdle. See Brumfield v. Cain, 135 S.Ct. 2269, 2283 (2015).

         When conducting its analysis, this Court must review the “last reasoned state court opinion.” Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). When the state's highest court denies the claim summarily, the federal court looks through to the last reasoned decision. See Johnson v. Williams (Tara), 568 U.S. 289, 297 n.1 (2013). The last reasoned decision here is that of the PCR court.

         1. Deficient Performance

         a. Unreasonable Determination of the Facts (§ 2254(d)(2))

         Petitioner argues that the state court premised its decision on the erroneous findings that: (1) trial counsel had vast experience in handling 250 homicide and at least 50 capital cases, (2) Petitioner was aware of, and could have informed counsel of, the existence of the majority of the new mitigation evidence, and (3) Petitioner imposed a demand for a speedy trial on his counsel and therefore “placed himself in a position of cutting short the mitigation investigation.”

         A challenge to a factual determination “based entirely on the state record” is governed by § 2254(d)(2), and is termed an “intrinsic” challenge. Murray, 745 F.3d at 999. A successful intrinsic challenge may be based on a claim that (1) the state-court decision rests on a finding unsupported by sufficient evidence, (2) the process employed by the state court was defective, (3) or no finding was made by the state court at all, when it was required to make a finding. Id. (citing Taylor, 366 F.3d at 999). The Court applies § 2254(d)(2) to “intrinsic review of a state court's processes, or situations where petitioner challenges the state court's findings based entirely on the state record.” Kesser v. Cambra, 465 F.3d 351, 358 n. 1 (2006) (en banc) (quoting Taylor, 366 F.3d at 999-1000). But see Miller-El v. Dretke, 545 U.S. 231 240 (2005) (reciting, without distinguishing, both § 2254(d)(2) and § 2254(e)(1)). An intrinsic review requires that a federal court “be particularly deferential to our state-court colleagues.” Murray, 745 at 999 (citing Taylor, 366 F.3d at 1000). New evidence may be considered only on de novo review, subject to the limitations of § 2254(e)(2). Id. at 1000 n.1.

         State-court factual determinations are accorded substantial deference, and may not be characterized as unreasonable because this Court would reach a different conclusion in the first instance. Brumfield, 135 S.Ct. at 2277 (citing Wood, 558 U.S. at 301). However, the Court affords this deference only if the state court's fact finding process survives “intrinsic” review pursuant to AEDPA's “unreasonable determination clause.” Hurles, 752 F.3d at 790 (citing Taylor, 366 F.3d at 1000). “[D]eference does not imply abandonment or abdication of judicial review, and does not by definition preclude relief.” Brumfield, 135 S.Ct. at 2277 (quoting Miller-El, 537 U.S. at 340) (internal quotation marks omitted). Before a federal court can determine that the state court's fact-finding process is defective in some material way, or perhaps non-existent, it “must more than merely doubt whether the process operated properly.” Taylor, 366 F.3d at 1000. Rather, it “must be satisfied that any appellate court to whom the defect is pointed out would be unreasonable in holding that the state court's fact-finding process was adequate.” Id. “To fatally undermine the state fact-finding process, and render the resulting finding unreasonable, the overlooked or ignored evidence must be highly probative and central to petitioner's claim.” Taylor, 366 F.3d at 1001.

         The state court's determination, in the absence of a hearing, that defense counsel had handled at least 50 capital cases was not unreasonable.

         The number of capital cases counsel represented to the court that they had handled ranged from 14 to 22, to 30, and finally, based on Basham's affidavit, 50 capital cases.[8](Doc. 28 at 197-98.) Petitioner never challenged counsel's capital case experience in state court, and thus the trial court could conclude, whether it was 14 or 50 capital cases, that counsel had the requisite experience to supervise and direct DiFrank. Under these circumstances, Petitioner cannot establish that a reviewing court “could not reasonably conclude that the finding is supported by the record.” See Taylor, 366 F.3d at 1000. Furthermore, though the PCR court considered this factual finding to be “salient, ” the court ultimately based its reasonableness determination on a finding that counsel had the experience to supervise DiFrank and the additional expertise required to “relate the pieces of mitigation to each other.” (Doc. 31, Ex. RR at 15.)

         Next, Petitioner contends that the PCR court unreasonably determined that Petitioner was aware of the new mitigation evidence prior to his sentencing. Petitioner argues that the finding was unreasonable because it required assumptions about facts outside the record without giving Petitioner an opportunity to present evidence as to those facts and, indeed, refusing to look at evidence he did present. (Doc. 28 at 198.) The Court finds that in the absence of an evidentiary hearing, and in light of the evidence in the record supporting Petitioner's position and the lack of sufficient evidence supporting the State's position, the PCR court's conclusion that Petitioner could have informed counsel of the existence of the majority of mitigation presented in his PCR at the time of his decision to exercise his rights to a speedy trial was an unreasonable determination of fact.[9]

         The Court rejects Respondents' assertion that “common sense” supported the PCR court's finding that Petitioner would have been aware of mitigation involving his own life. Neither does the Court agree that Petitioner's statement to the court-that he was happy with the mitigation so far produced by the defense-leads to the obvious conclusion that counsel had discussed mitigation with Petitioner. (Doc. 30 at 90) (citing RT 7/26/04 at 25-26) (Petitioner stating he was “very satisfied with the mitigation they have obtained for me so far”). First, even if Petitioner had discussed mitigation with his counsel, this does not establish that counsel considered Petitioner a source of mitigation. Second, even if Petitioner was considered to be a source of information, it's not evident that Petitioner was in a position to have full knowledge of the new evidence presented in the PCR. For example, the record does not indicate Petitioner would have been aware of his mother's history of mental illness and drug abuse, especially during the time of her pregnancy with him and during his early childhood.

         The fact that Petitioner was aware of the mitigating evidence was critical to the PCR court's determination that counsel did not perform deficiently. The PCR court suggested Petitioner made strategic choices with full knowledge of the mitigation he chose not to share with counsel. This finding was “objectively unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El, 537 U.S. at 340.

         Finally, Petitioner asserts that the PCR court reached a factual conclusion- Petitioner masterminded the idea to demand a speedy trial and was thus responsible for deficiencies in the mitigation investigation-that, without a hearing, could not be made on the version of the record before the court. (Doc. 28 at 195.) The Court finds that the examination of the record before the state court establishes that the critical factual determination made by the state court-that Petitioner was responsible for the time constraints placed on his mitigation investigation-was unreasonable under § 2254(d)(2) because the state court's fact-finding process was deficient.

         The state court's failure to conduct an evidentiary hearing does not necessarily “render its fact-finding process unreasonable so long as the state court could have reasonably concluded that the evidence already adduced was sufficient to resolve the factual question.” See Hibbler v. Benedetti, 693 F.3d 1140, 1147 (9th Cir. 2012). The ultimate question is “whether an appellate court would be unreasonable in holding that an evidentiary hearing was not necessary in light of the state court record.” Id. (emphasis in original); cf. Brumfield, 135 S.Ct. 2279-81 (holding that state habeas court's refusal to grant petitioner an evidentiary hearing on his intellectual disability claim, as permitted by state law, was based on an unreasonable determination of the facts within the meaning of § 2254(d)(2)). Petitioner does not argue that the failure to hold an evidentiary hearing was per se unreasonable; rather, he argues that in light of the record before the state court, the evidence required further factual development. The Court agrees.

         The evidence before the PCR court was neither sufficient to resolve the factual question, nor were Petitioner's allegations incredible in light of the record. See Perez v. Rosario, 459 F.3d 943, 950 (9th Cir. 2006) (holding that it is reasonable for a state court to resolve a disputed factual question without an evidentiary hearing when the petitioner's allegations are incredible in light of the record, or when the record already before the court establishes a fact conclusively); Earp v. Ornoski, 431 F.3d 1158, 1170 (9th Cir. 2005) (noting that a state court is not required to hold an evidentiary hearing when it is possible to resolve the factual question based on documentary testimony and evidence in the record) (citation omitted). In the PCR proceedings, Petitioner alleged that counsel conducted an inadequate mitigation investigation, resulting in the failure to bring relevant information to the attention of the mental health experts. Petitioner asserted this lapse in performance was due to defense counsel's failure to have a trained mitigation specialist on the team before trial and failure to provide their investigator, DiFrank, with adequate time to conduct the investigation. (See Doc. 31, Ex. W at 32, 35.) Petitioner supported these allegations with, among other things, a declaration from DiFrank that she was not trained as a mitigation specialist and did not have an adequate amount of time to investigate and prepare the case. (See Doc. 31, Ex. X, Ex. 4 at 2-3.) In response, the State argued that counsel did not perform deficiently because it was Petitioner himself who was responsible for any time limitations placed on the investigation and preparation of the case in mitigation. (Doc. 31, Ex. II, at 51.) The PCR court agreed, despite acknowledging that DiFrank attributed to lead counsel Storts the desire to take the case to trial as quickly as possible. (Doc. 31, Ex. RR at 15.)

         DiFrank indicated in her declaration that she was aware that Storts desired a quick trial, and further asserted that when she expressed her concerns about having sufficient time to complete her assignments, Basham stated there was “nothing he could do because lead counsel Storts was very strict about time limits.” (Doc. 31, Ex. X: Ex. 4 at 3.) Rejecting DiFrank's assertion, however, the state court adopted “as fact” Basham's avowal that it was Petitioner who consistently demanded to exercise his right to a speedy trial, and that this demand had been incorporated into the record by defense counsel on numerous occasions. (Doc. 31, Ex. NN: Ex. K at 4.) The PCR court, while seemingly acknowledging DiFrank's testimony was central to Petitioner's claim, failed to explain how it reconciled this evidence with the contradictory affidavits submitted by counsel, thus casting “doubt on the process by which the finding was reached, and hence on the correctness of the finding.” Taylor, 366 F.3d at 1007-08 (citations omitted). There is nothing in the record, aside from Basham's affidavit, that indicates this strategic idea originated with Petitioner with the understanding that by “maintaining his right to a speedy trial” he would be “cutting short the mitigation investigation.” (Doc. 31, Ex. RR at 15.) Although Petitioner had in fact notified the court, through counsel, that he was pursuing a speedy trial strategy for the purpose of forcing a change of venue if a jury could not be seated in Pima County under speedy-trial deadlines (see ROA. 206-07, 214), this does not establish that it was Petitioner's idea to pursue a speedy-trial strategy, or that Petitioner's unwavering demand for “no delay” in the proceedings precipitated counsel's strategic decision.

         There is some evidence in the record suggesting that even if the speedy trial strategy did not originate with Petitioner, he may have adopted this strategy with knowledge of the resulting limitations it would place on the scope of mitigation. Respondents identify two items that would support this finding: (1) trial counsel's statement that “Cruz felt Durand's extended timeline for preparing mitigation was ‘not acceptable, '” and (2) Petitioner's statement “that he wanted ‘no delays' in going to trial.” (See Doc. 31 at 86) (citing RT 4/26/04 at 62-63 and RT 7/26/04 at 25). Nonetheless, even ...


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