Dwayne Woods v. Stephen Sinclair

Filing

FILED OPINION (RICHARD A. PAEZ, RICHARD C. TALLMAN and MILAN D. SMITH, JR.) For the foregoing reasons, we affirm in part and vacate in part the district court s denial of Woods s petition. We remand for the district court to consider in the first instance whether Woods can show cause and prejudice under Martinez. AFFIRMED in part, VACATED in part, and REMANDED. . Judge: RAP Authoring, Judge: RCT Concurring & dissenting, Judge: MDS . FILED AND ENTERED JUDGMENT. [9216802]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DWAYNE ANTHONY WOODS,
Petitioner-Appellant,

No. 09-99003

v.

D.C. No.
2:05-CV-00319-LRS

STEPHEN SINCLAIR,
Respondent-Appellee.

OPINION

On Remand From The United States Supreme Court
Filed August 25, 2014
Before: Richard A. Paez, Richard C. Tallman,
and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Paez;
Partial Concurrence and Partial Dissent by Judge Tallman

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WOODS V. SINCLAIR
SUMMARY*

Habeas Corpus/Death Penalty
On remand from the United States Supreme Court, the
panel affirmed in part and vacated in part the district court’s
denial of a 28 U.S.C. § 2254 habeas corpus petition
challenging a conviction and capital sentence for two counts
of aggravated murder in the first degree and one count of
attempted murder in the first degree, and remanded for the
district court to consider in the first instance whether the
petitioner can show cause and prejudice under Martinez v.
Ryan, 132 S. Ct. 1309 (2012), excusing procedural default on
certain claims of ineffective assistance of counsel.
The panel held that the state court did not unreasonably
deny petitioner’s claim under Faretta v. California, 422 U.S.
806 (1975), because he had not made an unequivocal request
for self-representation.
The panel held that the state court did not unreasonably
deny petitioner’s claim that he was denied his Confrontation
Clause rights when the trial court admitted into evidence the
deceased victim’s statements to the police because they fell
within the medical diagnosis exception to the hearsay rule.
The panel held that the state court unreasonably applied
White v. Illinois, 502 U.S. 346 (1992), by determining some
of the victim’s statements were excited utterances, but that
the error was harmless because those statements were
cumulative.
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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The panel held that the state court’s decision was neither
contrary to nor an unreasonable application of Brady v.
Maryland, 373 U.S. 83 (1963), and did not involve an
unreasonable factual determination when the state court
denied petitioner’s contention that the prosecution should
have disclosed the crime lab’s DNA testing review process
(including peer review and destruction of erroneous draft
reports) because that evidence was not exculpatory.
The panel rejected as procedurally barred petitioner’s
claim of a Brady violation in the state’s failure to disclose the
full details of the spillage of one of petitioner’s blood samples
at the crime lab.
The panel affirmed the denial of several of petitioner’s
claims of ineffective assistance of counsel on the merits
and/or for lack of prejudice.
The panel agreed with the parties and the district court
that two of petitioner’s ineffective-assistance claims
regarding DNA evidence were procedurally defaulted. The
panel remanded to the district court so that it may determine
in the first instance whether these claims are substantial and
whether post-conviction-relief counsel was ineffective for
failing to raise them, thereby excusing, under Martinez, the
procedural default.
The panel vacated the district court’s ruling that the
petitioner’s claim that he received ineffective assistance when
his trial counsel failed to impeach witness Venus Shaver was
procedurally barred, and remanded so that the district court
may consider in the first instance whether the petitioner can
show cause and prejudice under Martinez.

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The panel affirmed the denial of relief on the petitioner’s
claim of cumulative deficiency.
Concurring in part and dissenting in part, Judge Tallman
wrote that because none of the petitioner’s new claims would
lead a reasonable juror to conclude that the petitioner did not
commit the murders or the attempted murder, no court can
provide the relief he seeks and the majority’s remand serves
only one purpose: unnecessary delay.

COUNSEL
Suzanne Lee Elliott, Law Offices of Suzanne Lee Elliott,
Seattle, Washington, and David B. Zuckerman, Law Offices
of David B. Zuckerman, Seattle, Washington, for PetitionerAppellant.
John Joseph Samson, Assistant Attorney General, Olympia,
Washington, for Respondent-Appellee.

OPINION
PAEZ, Circuit Judge:
In 1997, a Washington jury found Dwayne A. Woods
guilty of two counts of aggravated murder in the first degree,
one count of attempted murder in the first degree, and one
count of attempting to elude a police vehicle. After two days
of deliberation, the jury sentenced Woods to death. The
Washington State Supreme Court upheld his conviction and
sentence, State v. Woods, 23 P.3d 1046 (Wash. 2001), and
denied his petition for post-conviction relief, In re Woods,

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114 P.3d 607 (Wash. 2005). Woods then filed a petition for
a writ of habeas corpus in federal district court, which was
denied. Woods appeals from the denial of habeas relief,
contending that (1) he was denied his Sixth Amendment right
to represent himself, (2) the state court’s admission of certain
evidence violated the Confrontation Clause, (3) the State
withheld material, exculpatory evidence in violation of Brady
v. Maryland, 373 U.S. 83 (1963), and (4) his trial counsel’s
representation was ineffective.1 We have jurisdiction under
28 U.S.C. § 1291.
In a previous opinion filed on August 10, 2011, we
affirmed the district court’s order denying Woods’s habeas
corpus petition. Woods v. Sinclair, 655 F.3d 886, 891 (9th
Cir. 2011). On March 26, 2012, the Supreme Court granted
Woods’s petition for certiorari, vacated our opinion, and
remanded the case for further consideration in light of
Martinez v. Ryan, 566 U.S. —, 132 S. Ct. 1309 (2012). In
May 2012, we ordered the parties to file supplemental briefs
addressing the impact of Martinez and Sexton v. Cozner,
679 F.3d 1150, 1153 (9th Cir. 2012) on this case. That same
month, a petition for rehearing en banc was granted in
Detrich v. Ryan, 677 F.3d 958 (9th Cir. 2012). Detrich also
involved Martinez issues. The parties’ supplemental briefs
addressing Martinez and Sexton were filed before the en banc

1

Woods also alleges that the State violated his due process rights when
it misled the court and defense as to the progress of a DNA test during
several hearings. This claim, claim 6.1 in Woods’s federal habeas
petition, was not included in the Certificate of Appealability (“COA”).
Although the prosecution failed to act with proper diligence in the
completion of the DNA testing, we agree with the State that there was no
prejudice from any failure to notify Woods of the reasons for the delay.
Because we conclude that the claim lacks merit, we decline to grant a
COA.

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court in Detrich filed its opinion on September 3, 2013. 740
F.3d 1237, 1262 (9th Cir. 2013) (en banc). We ordered
further supplemental briefing on the impact of Detrich. The
parties’ supplemental briefs were filed on September 27,
2013. With the exception of the claims affected by Martinez,
we again affirm the district court’s rulings on the remaining
claims for all the reasons set forth in our original opinion.
We vacate the district court’s ruling as to the claims affected
by Martinez and remand for further proceedings in light of
that case.
I. THE CRIME2
On Friday, April 26, 1996, Telisha Shaver was housesitting at her aunt’s trailer home in Spokane Valley,
Washington. Telisha3 planned to spend the night at her
boyfriend’s home, but had agreed to let her sister, Venus, and
Venus’s friend, Jade Moore, spend the night at the trailer.
Venus and Jade arrived at the trailer at approximately 1:45
a.m. on Saturday morning. The women drank alcohol and
socialized. At some point, Venus and Jade decided to contact
Dwayne Woods, whom Venus had previously dated. After
the women paged Woods, he eventually joined them at the
trailer. By that time, approximately 4:20 a.m., Jade was
asleep.

2

This factual background is taken largely from the Washington State
Supreme Court’s opinion affirming Woods’s conviction and sentence. See
Woods, 23 P.3d at 1053–59.
3

In this opinion we frequently refer to Telisha and Venus Shaver by
their first names for the sake of clarity. We also refer to Jade Moore by
her first name to avoid confusion with her father, Barry Moore.

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While at the trailer, Woods served himself alcohol and
talked with Venus. According to Venus’s testimony, Woods
was upset that Jade was asleep and urged Venus to wake her
up. Venus tried to wake Jade up, but Jade did not respond.
At this, Woods became irate and, according to Venus, shoved
her onto the couch and attempted to unbutton her pants.
Venus said that she initially escaped Woods’s grasp, but that
he managed to grab her again and then slammed her head and
neck against a door. Venus testified that she has no memory
of what transpired from that point forward except for
intermittent flashes of memory in which she recalls struggling
with Woods.
At approximately 7:30 a.m., Woods forced Jade to wake
up at knife point. He took her to another one of the
bedrooms, where Venus lay unconscious and severely beaten.
Woods forced Jade to help him loot the trailer and to give him
her ATM card and personal identification number. He then
raped Jade orally and vaginally.
During the attack on Jade, Telisha returned to the trailer
to retrieve some personal effects. Woods seized and bound
her. Jade, who was laying on the floor and feigning
unconsciousness, later stated that she heard a baseball bat hit
Telisha’s head. Jade said that she was then hit in the head
with the bat, knocked unconscious, and had no memory of
what happened after that point.
When Telisha failed to return home that morning, her
mother, Sherry Shaver, decided to go to the trailer to check
on her. She arrived at approximately 10:25 a.m. and found
the door locked. Peering through a window in the trailer, she
saw a man—whom she later identified as Woods—exiting
from the other side of the trailer. She pounded on the locked

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trailer door, and Jade, naked and beaten, eventually opened
the door. Sherry Shaver called 911.
Emergency personnel arrived at the trailer and took the
victims to the hospital. While en route to the hospital, Jade
told a paramedic about the events of the prior evening. At the
hospital, she also told her father, the emergency room
physician, and a nurse about what had transpired. Of the
three victims, only Venus survived. Telisha died without
ever regaining consciousness. Despite initially responding to
medical treatment, Jade died the following day.
Shortly after Sherry Shaver reported seeing Woods leave
the trailer, he was seen at two local businesses close to the
crime scene. At one of those businesses, Woods convinced
another patron to drive him to downtown Spokane. Within
close proximity to where Woods was dropped off, a series of
cash machine withdrawals occurred with the use of Jade’s
ATM card.
At approximately 12:30 p.m. that same day, Woods ran
into his brother-in-law, Louis Thompson, at a grocery store
in the downtown area. Thompson gave Woods a ride to the
home of Woods’s friend, Johnny Knight. Knight and his
friend, Mary Knapp, testified that when Woods came to their
home, he offered to sell them some jewelry and to buy one of
Knight’s automobiles.
Woods spent the night at Elizabeth Gerber’s apartment.
The following morning, Gerber asked Woods to leave the
apartment. At trial, she testified that Woods became agitated
and said he was “a wanted man” and she was “putting him on
the streets.”

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Later that day, Knight heard a television broadcast that
authorities were searching for Woods. In response, Knight
called the police and agreed to lead them to Woods. With
Knight’s cooperation, sheriff’s deputies followed Knight as
he went to pick up Woods. After Knight picked Woods up,
the deputies pulled the car over. Knight got out, but Woods
jumped into the driver’s seat and sped away. The deputies
eventually caught, arrested, and interrogated him.
Woods told the interviewing detectives that he fled
because he had a number of “outstanding traffic violations”
and some “traffic warrants.” At the time of his arrest, Woods
had no outstanding traffic violations. Woods denied any
responsibility for the crimes and claimed he had not been in
contact with Venus for about a week. He further denied
knowing a woman named Jade. He also told detectives that
he had not been in Spokane Valley for about a month, that he
had never visited a trailer home, and that there was no logical
explanation of why his fingerprints would have been found in
the trailer.
II. PRE-TRIAL PROCEEDINGS
Woods was charged with two counts of aggravated first
degree murder, one count of attempted first degree murder,
and in the alternative, one count of first degree assault.4 At
his arraignment on May 30, 1996, Woods pleaded not guilty
to the charges and waived his right to be tried within sixty
days of his arraignment, but not later than November 12,
1996. The trial was set for October 21, 1996.

4

The State later amended the information to include a charge of eluding
police.

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In the meantime, the prosecution processed the physical
evidence in the case. Doctors had completed “rape kits” for
all three victims, including taking a swab from the vagina of
each victim. The rape kits were sent to the Washington State
Patrol Crime Laboratory (or “WSPCL”) in Spokane. At the
Spokane lab, William Morig examined the swabs in search of
sperm cells that might contain the DNA of the murder
suspect. Morig found no sperm on the swab taken from
Venus Shaver, but found usable samples from the swabs
taken from Telisha Shaver and Jade Moore. The prosecution
also obtained a vial of Woods’s blood to use in DNA tests.
That sample was sent to the Spokane lab as well. The
WSPCL in Spokane did not have the required DNA testing
equipment, so Morig’s responsibilities were limited to
preparing DNA samples from the rape kits and Woods’s
blood that could be submitted to other labs for DNA testing
and analysis.
On August 23, 1996, Woods’s defense counsel moved for
a continuance of the trial date based on the fact that they had
not received the DNA test results and that they needed
additional time to produce mitigation evidence. Although
Woods objected to this motion, defense counsel argued that
unless a continuance was granted, Woods would be unable to
receive a fair trial. The trial court ultimately granted the
motion and reset the trial date for March 17, 1997.
On October 16, 1996, the prosecutor informed the court
that the DNA evidence had not yet been sent for testing. The
prosecutor represented that the results from the testing would
be received by January 1, 1997. Consequently, the court
ordered that the DNA test results be disclosed to the defense
by January 1, 1997. The prosecutor also informed the court
that the vial of Woods’s blood had been mistakenly frozen

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and had cracked. The prosecution therefore needed a new
blood sample for testing purposes. Woods objected to
providing a new sample and renewed his objection to having
the trial commence after the original date of October 21,
1996. The court overruled both objections.
By January 2, 1997, the WSPCL had returned only one of
two DNA test results. That test, performed by a private
company, showed that Woods was not the source of semen
found in Telisha’s body. At a hearing on January 13, 1997,
the prosecutor informed the trial court that the testing of the
sperm sample taken from Jade Moore was not complete.
WSPCL performed that testing at its more advanced Seattle
laboratory because it required a complex testing procedure.
The prosecutor informed the court that the test would not be
complete until the middle of February 1997. Defense counsel
moved to exclude admission of the DNA evidence as a result
of the delay, to dismiss the case because of prosecutorial
mismanagement, and to continue the case in order to have
time to adequately prepare for trial in light of the delay in
DNA testing. The trial court denied the first two motions but
granted the last and continued the trial to May 19, 1997.
Before trial, WSPCL returned the results of the DNA testing
performed in Seattle, which showed that the DNA taken from
Woods’s second blood sample matched the DNA taken from
the sperm recovered from Jade Moore.
III. GUILT PHASE PROCEEDINGS
At trial, Venus and Sherry Shaver identified Woods as the
assailant. The jury also heard Jade’s statements, including
her identification of Woods, via the testimony of a paramedic,
nurse, and doctor who treated Jade and the testimony of her
father, Barry Moore, who spoke to Jade after the attack. Dr.

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John Brown, a forensic scientist at WSPCL’s Seattle
laboratory, testified that the sperm recovered from Jade
contained Woods’s DNA. A fingerprint expert testified that
Woods’s fingerprints were on a bottle and a telephone found
in the trailer. The jury also learned that Woods’s coat and
shirt were found at the trailer and saw paging and telephone
records demonstrating that Woods’s pager had been called
from the trailer several times during the early hours of April
27, 1996.
The defense theory was that Woods could not have
murdered Telisha and Jade or assaulted Venus because he
was dining at a bar in downtown Spokane at the time the
crimes occurred. To support this alibi defense, the defense
presented testimony from an expert on eyewitness
misidentification and from a bartender who testified that he
saw Woods at a downtown bar on the evening in question.
The jury found Woods guilty of two counts of aggravated
murder, one count of attempted murder, and one count of
attempting to elude police officers.
IV. PENALTY PHASE PROCEEDINGS
Woods instructed his attorneys not to present any
mitigating evidence at the penalty phase of the trial.
Concerned about Woods’s mental state, defense counsel
requested a continuance of the penalty phase in order to have
Woods’s mental capacity assessed. The trial court denied the
motion and ordered the trial to commence that afternoon.
The prosecution offered the testimony of Sherry Shaver and
Barry Moore, presented photographs of Telisha and Jade, and
entered into evidence certified judgments of Woods’s prior
convictions.

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Pursuant to Woods’s instructions, defense counsel did not
present any mitigating evidence. Woods did, however,
invoke his right to allocution and made the following
statement to the jury:
Well, ladies and gentlemen, you heard from
[the prosecutor] and so you know that he’s
asking that you impose the death penalty. I
just want to say that I have no objection.
Also, I just want to remind you that a few
weeks back during individual voir dire each of
you was asked if you could, in fact, impose
the death penalty. I believe at that time each
of you said you could impose the death
penalty providing there’s not sufficient
mitigating circumstances.
So I am here to tell you there’s absolutely
none, not one. So I ask that each of you go
back and return a vote to impose the death
penalty. Thank you.
After deliberating for two days, the jury found that there were
insufficient mitigating circumstances to merit leniency.
Woods was sentenced to death.
V. STATE AND FEDERAL POST-CONVICTION
PROCEEDINGS
The Washington Supreme Court affirmed the convictions
and sentence on direct appeal. See Woods, 23 P.3d at 1079.
The Supreme Court denied certiorari. See Woods v.
Washington, 534 U.S. 964 (2001). Woods then filed a
personal restraint petition (“PRP”) in the Washington

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Supreme Court. Woods raised eighteen claims for relief,
including an ineffective assistance of counsel (“IAC”) claim,
a Brady claim, a claim that the jury had been improperly
prohibited from viewing certain evidence, and a claim that
newly discovered evidence required a new trial. The
Washington Supreme Court denied Woods’s petition. See In
re Woods, 114 P.3d at 611.
Woods next filed a federal habeas petition. The State’s
answer raised a number of procedural-bar defenses, including
a claim that Woods had not properly exhausted his claims.
The district court bifurcated the briefing to first determine
whether any of Woods’s claims were procedurally barred.
On the basis of this first round of briefing, the district court
concluded that some portions of Woods’s IAC claims and
Brady claims were procedurally barred. The court then
considered Woods’s remaining claims on the merits, and
ultimately dismissed the petition in its entirety.
Woods filed a timely notice of appeal and moved for a
COA on all of his claims. The district court granted a limited
COA, the scope of which we address below.
VI. STANDARD OF REVIEW
We review de novo a district court’s denial of a prisoner’s
petition for habeas relief. Brown v. Ornoski, 503 F.3d 1006,
1010 (9th Cir. 2007). The district court’s findings of fact are
reviewed for clear error. Id.
Because Woods filed his federal habeas petition after
1996, the Anti-Terrorism and Effective Death Penalty Act of
1996 (“AEDPA”) governs this action. See id. The AEDPA
requires federal courts to defer to the last reasoned state court

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decision. Id. A federal court may grant a state prisoner’s
habeas petition with respect to a claim that was “adjudicated
on the merits in State court proceedings” only if the
adjudication “(1) 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; or (2) resulted in a decision that was
based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d).
A state court decision is “contrary to” federal law if it
applies a rule that contradicts the governing law set forth in
Supreme Court cases or if it “confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme]
Court and nevertheless arrives at a result different from
[Supreme Court] precedent.” Williams v. Taylor, 529 U.S.
362, 405–06 (2000). A state court decision involves an
“unreasonable application” of federal law if “the state court
identifies the correct governing legal rule from [the Supreme]
Court’s cases but unreasonably applies it to the facts of the
particular state prisoner’s case” or if it “either unreasonably
extends a legal principle from [the Supreme Court’s]
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.” Id. at 407.
In assessing under section 2254(d)(1) whether the state
court’s legal conclusion was contrary to or an unreasonable
application of federal law, our “review . . . is limited to the
record that was before the state court that adjudicated the
claim on the merits.” Cullen v. Pinholster, 131 S. Ct. 1388,
1398 (2011). We consider circuit precedent for the limited
purpose of assessing what constitutes “clearly established”

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Supreme Court law and whether the 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).
VII. SELF-REPRESENTATION
Woods contends that he made an unequivocal request to
represent himself and that the trial court was thus obliged
under Faretta v. California, 422 U.S. 806 (1975), to conduct
a colloquy to determine whether his request was voluntary,
knowing, and intelligent. The court’s failure to do so, Woods
argues, violated his Sixth Amendment right to selfrepresentation. On direct appeal, the Washington State
Supreme Court concluded that Woods had failed to make an
unequivocal request. See Woods, 23 P.3d at 1061–62. The
district court agreed, and we affirm.
Under Faretta, a criminal defendant may invoke the right
of self-representation by making an unequivocal request, and
knowingly and intelligently waiving the right to counsel.
Faretta, 422 U.S. at 835. Here, during pre-trial proceedings,
Woods twice informed the court that he opposed any
continuance of the trial date. First, on August 16, 1996,
Woods informed the court that he opposed any extension of
time for the prosecution to file its notice of special sentencing
proceeding5 or any further continuance of his trial date. On
5

Under Washington law, when a criminal defendant is eligible for the
death penalty, the State is required to file a notice of special sentencing
proceeding within thirty days after the defendant’s arraignment. Wash.
Rev. Code § 10.95.040(2). If that notice is not timely filed, the State may
not seek the death penalty. Id. § 10.95.040(3). On direct appeal, Woods
argued that the State had failed to comply with this requirement, and that
he was therefore entitled to a new trial. See Woods, 23 P.3d at 1062–63.

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August 23, 1996, Woods again expressed his opposition to
any further continuance when his defense counsel requested
that the trial date be pushed back to May 5, 1997, as a result
of the delay in processing the DNA evidence. The following
colloquy then took place:
[DEFENSE COUNSEL]: I think the only
effective date we can ask for right now is the
5th of May of ‘97.
WOODS: Your Honor, you know, I will
be—I will be prepared to proceed with—with
this matter here without counsel come
October 21st.
THE COURT: All right. You understand you
have the right to do that.
WOODS: Yes.
THE COURT: Counsel, have you discussed
this with your client?
[DEFENSE COUNSEL]: No. We have not
discussed that point at all. It’s a surprise to
me.

The Washington Supreme Court rejected that argument, among others, in
a 5-1 opinion. Id. at 1063. Justice Sanders’s dissent, however, concluded
that the State had indeed erred and that such error required the court to
vacate Woods’s death sentence. Id. at 1079–81 (Sanders, J., dissenting).
Woods did not raise this state law issue in his federal habeas petition.

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WOODS: I’ve—I’ve already consented to
one continuance, Your Honor.
And
they—they have done nothing but grossly
misuse that time there. And I feel if—if they
was granted a second continuance, it—it
would be treated in the same manner, Your
Honor.
THE COURT: All right. Thank you.

Shortly afterward, the prosecutor stated that “the defendant is
indicating he wants to proceed pro se.” The trial judge
replied: “He didn’t indicate that. He indicated he was able to
do that.” Nobody made any further references to Woods’s
request to proceed pro se throughout the remainder of the
hearing.
On August 29, 1996, one of Woods’s attorneys
acknowledged in a written submission to the court that he was
aware of Woods’s desire for a “prompt resolution” of the
case. On August 30, 1996, Woods’s defense team renewed
their request for a continuance. At a hearing on the motion,
the judge stated: “I’ve heard Mr. Woods’s point of view and
I take it, it is unchanged. Is that correct?” Woods responded,
“Yeah.” The trial judge nonetheless granted the motion to
continue the trial to March 17, 1997.
In concluding that Woods’s request was equivocal, the
Washington State Supreme Court analogized his request to
that made by the defendant in State v. Luvene, 903 P.2d 960
(Wash. 1995). There, frustrated by his attorney’s request for
a continuance, the defendant addressed the court directly and
stated:

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I’ve been here since July . . . . You know, I
don’t wanna sit here any longer. It’s me that
has to deal with this. If I’m prepared to go for
myself, then that’s me. You know, can’t
nobody tell me what I wanna do. They say I
did this, so why not—if I wanna go to trial,
why can’t I go to trial on the date they have
set for my life? I’m prepared. I’m not even
prepared about that. I wanna go to trial, sir
....
I don’t wanna extend my time. This is out of
my league for doing that. I do not want to go.
If he’s not ready to represent me, then forget
that. But I want to go to trial on this date.
Id. at 966. In Luvene, the Washington Supreme Court
concluded that these statements, taken in the context of the
record as a whole, could be seen only as an “expression of
frustration by [the defendant] with the delay in going to trial
and not as an unequivocal assertion of his right to selfrepresentation.” Id.
Noting the similarities between the statements in Luvene
and Woods’s statement, the Washington State Supreme Court
held:
Woods’s statement cannot be viewed as an
unequivocal statement of his desire to proceed
to trial pro se. His statement, like that which
we examined in Luvene, merely revealed the
defendant’s displeasure with his counsels’
request to continue the trial for a lengthy
period of time. Woods, like the defendant in

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Luvene, was undoubtedly frustrated by the
delay, and his statement to the trial court
appears to have been an expression of those
feelings.
...
We are satisfied that telling a trial judge he
“will be prepared to proceed without counsel”
is qualitatively different than telling a judge
that one wishes to proceed pro se. Woods’s
comment was in the former category and was
not an expression of an unequivocal desire to
represent himself. We conclude, therefore,
that he was not denied his constitutional right
to proceed pro se and is not entitled to a new
trial on that basis.

Woods, 23 P.3d at 1062.
We conclude that the Washington Supreme Court’s
determination that Woods’s pre-trial statement, as quoted
above, was “not an expression of an unequivocal desire to
represent himself,” id., was not “an unreasonable
determination of the facts,” 28 U.S.C. § 2254(d)(2). Cf.
United States v. Kienenberger, 13 F.3d 1354, 1356 (9th Cir.
1994) (expressly considering as a question of fact whether a
defendant made an unequivocal Faretta request). Although
it is not apparent what factual basis the Washington Supreme
Court relied on to conclude that Woods was merely
expressing “frustration,” we cannot say, in light of the state
trial court record, that the court’s holding was unreasonable.
Shortly after Woods stated that he was prepared to proceed
without counsel, the trial court expressly disagreed with the

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prosecutor’s statement that Woods was asking to proceed pro
se, stating that “[Woods] didn’t indicate that [he wanted to
proceed pro se]. He indicated he was able to do that.”
Woods had the opportunity to correct or clarify the court’s
understanding if it was incorrect. Yet neither Woods nor his
counsel reasserted the request to proceed pro se again during
the hearing or any future hearings.6 In light of this exchange,
we cannot conclude that the state court’s factual
determination was unreasonable. Woods is therefore not
entitled to relief under this claim.
VIII. CONFRONTATION CLAUSE
Woods next argues that admission of Jade Moore’s outof-court statements at trial violated his rights under the
Confrontation Clause. The Sixth Amendment provides that,
“[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.”
U.S. Const. amend. VI. Under Ohio v. Roberts, controlling
law at the time of Woods’s conviction, admission of an outof-court statement at trial did not violate the Confrontation
Clause if the statement possessed “adequate indicia of
reliability.” 448 U.S. 56, 65–66 (1980), abrogated by
Crawford v. Washington, 541 U.S. 36 (2004).7 A statement

6

Woods claims that at the next hearing he reasserted his right to proceed
pro se. At that hearing, in discussing whether or not to grant a
continuance, the trial court stated, “I’ve heard Mr. Woods’ point of view
and I take it, it is unchanged. Is that correct?” Woods replied, “Yeah.”
We cannot reasonably discern from Woods’s reply a request to proceed
pro se.
7

Woods’s conviction became final before the Supreme Court issued its
opinion in Crawford, so we apply the clearly established pre-Crawford
Supreme Court law. See Whorton v. Bockting, 549 U.S. 406, 421 (2007)

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is sufficiently reliable if it falls “within a firmly rooted
hearsay exception” or bears “particularized guarantees of
trustworthiness.” Id. at 66. The Supreme Court subsequently
recognized that “spontaneous declarations”—the same types
of statements referred to as “excited utterances” under
Washington’s hearsay laws—constitute a “firmly rooted”
hearsay exception. White v. Illinois, 502 U.S. 346, 355 n.8
(1992). Likewise, the Court recognized that statements made
to physicians in the course of diagnosis also fall within a
“firmly rooted” exception. Id.
Here, over Woods’s objection, the trial court allowed five
witnesses to testify about statements that Jade made after the
attack and before her death. Deputy Douglas Lawson of the
Spokane County Sheriff’s Department, who responded to the
scene of the crime, testified at trial that he asked Jade whether
she knew who attacked her and that she responded it was “a
guy named Dwayne.” Carol Ragland-Stone, a paramedic
who accompanied Jade to the hospital, testified at trial that:
(1) when she asked Jade what had happened to her, Jade told
her that she had been hit with a baseball bat; (2) when she
asked Jade who hit her, Jade responded that it was a man
named Dwayne; and (3) when asked whether she was
sexually assaulted, Jade said yes. Jade’s father, Barry Moore,
testified that when he went to visit Jade in the emergency
room, she gave him a detailed account of the incident. Barry
Moore repeated this account to the jury. Dr. Edminster, who
was working at the hospital where Jade was admitted,
testified that he asked Jade a number of questions as part of
a routine rape examination procedure. Dr. Edminster gave

(holding that the new Crawford rule is applicable only to cases that are
still on direct review and does not apply retroactively to cases on collateral
review).

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detailed testimony about Jade’s answers to these questions.
Finally, Dianne Bethel, a registered nurse who assisted Dr.
Edminster in the administration of the rape examination, also
testified as to Jade’s answers to the rape examination
questions.
To determine whether Woods’s Confrontation Clause
rights were violated, we must resolve whether Jade’s
statements to these witnesses fell within either the “firmly
rooted” excited utterance or medical diagnosis exceptions to
the hearsay rule. We address the five witnesses’s statements
in turn.
First, Woods argues that some of Jade’s statements to Dr.
Edminster and nurse Bethel were not elicited for purposes of
diagnosis and treatment and therefore do not fall within the
medical diagnosis exception to the hearsay rule. Under
White, in order for a statement to fall within the medical
diagnosis exception, it must have been “made in the course of
procuring medical services, where the declarant knows that
a false statement may cause misdiagnosis or mistreatment.”
Id. at 356.
The Washington Supreme Court held that Jade Moore’s
statements to Dr. Edminster and Bethel were admissible
under this exception because they were pertinent to later
treatment for post traumatic stress disorder. Because this
conclusion is at least plausible and because the Supreme
Court has yet to address whether such statements relevant
only to later psychological treatment fall within the medical
diagnosis exception to the hearsay rule, we cannot conclude
that the Washington Supreme Court’s determination was
clearly unreasonable.

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Woods next argues that Jade’s statements to Barry Moore
and to paramedic Ragland-Stone should not have been
admitted into evidence under the excited utterance exception.
In White, the Court explained that statements that have “been
offered in a moment of excitement—without the opportunity
to reflect on the consequences of one’s exclamation” fall
within the excited utterance exception. Id. If, on the other
hand, a statement is made after the declarant has had an
opportunity to reflect or discuss the matter with others, it no
longer qualifies for the excited utterance exception. Winzer
v. Hall, 494 F.3d 1192, 1198 (9th Cir. 2007) (interpreting
White).
According to the Washington Supreme Court, “it was not
manifestly unreasonable for the trial court to admit Jade’s
statements to Ragland-Stone and her father as excited
utterances.” Woods, 23 P.3d at 1069. As to Jade’s statements
to Ragland-Stone, the court noted:
[T]he record reflects that the statements to
Ragland-Stone were made, in a spontaneous
manner, on the heels of a clearly startling
event. . . . Also, it is clear that when Jade was
making the statements to Ragland-Stone, Jade
was under the stress caused by the underlying
assault. According to Ragland-Stone, when
Jade was first moved into the ambulance,
Ragland-Stone said she was “whimpering,
like crying almost” and was “very emotional,
very distraught, clearly upset and in a lot of
pain.”
Id. at 1068. We must accept the state court’s factual findings
unless objectively unreasonable. 28 U.S.C. § 2254(d)(2);

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Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004).
Because there was no evidence to the contrary, the state
court’s conclusion that the statements were made “in a
spontaneous manner, on the heels of a clearly startling event,”
was not objectively unreasonable. Woods, 23 P.3d at 1068.
Given those circumstances, Jade’s statements to RaglandStone met the White requirement for an excited utterance:
they were offered “in a moment of excitement—without the
opportunity to reflect on the consequences of [her]
exclamation.” White, 502 U.S. at 356. The state court’s
conclusion was therefore not objectively unreasonable. For
the same reasons, we conclude that the state court was not
objectively unreasonable in holding that Jade’s statements to
Deputy Lawson fell within White’s requirements.
Jade’s statements to Barry Moore, however, do not fall
within the excited utterance exception as formulated by White
because they were not made before Jade had an opportunity
to reflect. Rather, these statements were made after Jade had
already been transported to the hospital and after she had
already recounted the events to Ragland-Stone, Edminster
and Bethel. Furthermore, in recounting the events to her
father, Jade said that she had gone to bed early despite the
fact that she had been up until past 3 a.m., and she also failed
to recount that she had been drinking prior to the attack or
that she had sought to buy drugs from Woods. Woods,
23 P.3d at 1068. Those misrepresentations suggest that Jade
had the opportunity to reflect on the consequences of her
statements. Furthermore, unlike its findings about Jade’s
statements to Ragland-Moore, the Washington Supreme
Court’s opinion contains no similar findings as to the
spontaneity of Jade’s statements to Barry Moore. We
therefore conclude that the state court’s determination that
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an unreasonable application of White, clearly established
federal law. Accordingly, admission of Jade’s statements to
Barry Moore constituted a violation of Woods’s rights under
the Confrontation Clause.
Violation of the Confrontation Clause, however, is subject
to harmless-error analysis. Delaware v. Van Arsdall,
475 U.S. 673, 684 (1986). If the error did not result in
“actual prejudice,” Woods is not entitled to habeas relief.
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). Here,
Jade’s statements to her father were, for the most part,
cumulative of the statements she gave to Edminster, Bethel
and Ragland-Stone. Jade’s prior statements all included the
details of the crime and identification of Woods as the
perpetrator. Furthermore, Jade’s prior statements were
cumulative of the testimony by Venus, who also identified
Woods as the attacker. Thus, Woods cannot establish
prejudice as a result of the Confrontation Clause violation,
and he is not entitled to habeas relief on this issue.
IX. DUE PROCESS CLAIM — WITHHOLDING
MATERIAL EVIDENCE
Woods argues that the prosecution withheld material,
exculpatory evidence in violation of Brady v. Maryland.
Specifically, Woods argues in two Brady sub-claims8 that the
prosecution withheld evidence concerning: (1) WSPCL’s
general policy of destroying “draft” reports, as evidenced by
Dr. John Brown’s conduct in State v. Barfield, No. 48147-9-I,
2003 WL 22121058 (Wash. Ct. App. Sept. 15, 2003), and (2)

8

The first sub-claim is set out in claim 5.1 in Woods’s federal habeas
petition. The second sub-claim is set out in claim 5.2 in Woods’s federal
habeas petition.

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the full details of how the WSPCL mishandled the physical
evidence in his case, including spillage of Woods’s first blood
sample. On the first Brady sub-claim, the district court
denied Woods’s request for an evidentiary hearing and denied
habeas relief. The district court ruled that the second subclaim was procedurally defaulted. We address each subclaim in turn.
A. The State’s failure to disclose WSPCL’s general
practices
Woods argues that the prosecution had knowledge of
WSPCL’s DNA testing and review protocol, which included
discarding “draft” reports, and was therefore required under
Brady to disclose the lab’s review process. Woods bases this
contention on Dr. Brown’s conduct detailed in State v.
Barfield, 2003 WL 22121058.9 In Barfield, Dr. Brown tested
the DNA from a semen sample retrieved from a rape victim
and compared the results to a WSPCL database that included
defendant Barfield’s DNA. Id. at *1. He did not identify a
match, and created a draft report reflecting that result. Id.
Brown’s supervisor, Donald MacLaren, independently
analyzed the test results and, after reviewing Brown’s draft
report, noticed that Brown had made an error. Id. After
MacLaren brought the error to his attention, Brown discarded
the erroneous draft report and prepared a new report
reflecting the correct analysis, which indicated the DNA from
the semen sample matched Barfield’s DNA profile in the
WSPCL database. Id. In a pretrial interview with defense
counsel, Brown initially denied excluding Barfield in an
earlier report, but later admitted that he had performed the
9

Dr. Brown analyzed DNA in the Barfield case in 1997, but after he
analyzed the DNA evidence and testified in Woods’s case.

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first round of analysis incorrectly and had discarded the initial
erroneous draft report. Id. Dr. Brown testified at Barfield’s
rape trial that he had lied to defense counsel because he was
embarrassed about making an obvious error. Id. at *2.
In a declaration submitted to the Washington Supreme
Court in Woods’s PRP proceeding, MacLaren, who also
reviewed Dr. Brown’s analysis in Woods’s case, stated that
the review process followed in Barfield—including peer
review and discarding erroneous draft reports—was standard
procedure at WSPCL. MacLaren declared, however, that
“out of the thousands of autorads this lab has developed there
have been less than ten instances where a resizing was
necessitated by the review process.”
Woods argues that had he known about WSPCL’s
practices at the time of trial, he would have used the
information to impeach Dr. Brown and to challenge the
prosecution’s DNA evidence by questioning the quality of
WSPCL’s internal review process. Woods contends that Dr.
Brown’s misconduct in the Barfield case revealed a
longstanding practice of hiding the results of exculpatory
tests and that there were indicia in this case that draft reports
may have been destroyed. Specifically, Woods points out
that WSPCL assured the prosecution that testing would be
completed by January 1, 1997, but it was not completed until
February 20, 1997. Woods argues that it is reasonable to
infer that the delay was due to one or more tests that were
never reported to the defense.
To prevail on a Brady claim, a defendant must prove that
“[1] The evidence at issue [is] favorable to the accused, either
because it is exculpatory, or because it is impeaching; [2] that
evidence [was] suppressed by the State, either willfully or

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inadvertently; and [3] prejudice . . . ensued.” Strickler v.
Greene, 527 U.S. 263, 281–82 (1999); see Brady, 373 U.S. at
87. To establish prejudice, a defendant must demonstrate that
“there is a reasonable probability that the result of the trial
would have been different if the suppressed [evidence] had
been disclosed to the defense.” Strickler, 527 U.S. at 289
(internal quotation marks omitted).
“A ‘reasonable
probability’ is a probability sufficient to undermine
confidence in the outcome.” United States v. Bagley,
473 U.S. 667, 682 (1985).
The duty imposed by Brady extends to evidence in the
government’s possession not known to the prosecutor, but
applies only to “favorable evidence rising to a material level
of importance.” Kyles v. Whitley, 514 U.S. 419, 438 (1995).
Moreover, the prosecutor’s duty to disclose under Brady is
limited to evidence a reasonable prosecutor would perceive
at the time as being material and favorable to the defense. Id.
at 436–37.
The state supreme court concluded that WSPCL’s general
practice of peer review and destruction of erroneous draft
reports was not exculpatory material in Woods’s case, and
that the prosecution did not have a duty to disclose the lab’s
general practices and procedures. This conclusion was not
contrary to nor an unreasonable application of Brady under
28 U.S.C. § 2254(d)(1). The bare fact that the lab subjected
DNA test results to peer review and discarded draft reports
when peer review turned up an error does not tend to show
that an error occurred in Woods’s case. We recognize that
destruction of a draft report that excluded a defendant as a
match with a suspect’s DNA would likely violate Brady in
light of the report’s impeachment value. Although WSPCL
may have followed such a practice in those rare instances

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when its peer review process revealed an erroneous analysis,
there is nothing to suggest that the state suppressed an
erroneous draft report in Woods’s case. Moreover, Dr.
Brown’s misconduct in Barfield occurred months after
Woods’s trial concluded, so the prosecution did not possess
any information about Brown’s actions in Barfield that could
have impeached him at Woods’s trial.
Even if evidence of WSPCL’s general practices were not
exculpatory, Woods argues that it would be reasonable to
infer from Dr. Brown’s conduct in Barfield and the delay in
obtaining DNA test results in his case that WSPCL conducted
tests in his case that were never reported to the defense.
Woods contends the state supreme court wrongfully denied
him an evidentiary hearing to develop this claim. We
construe his argument as a claim that the state court’s
factfinding process was flawed and was therefore an
unreasonable determination of the facts under 28 U.S.C.
§ 2254(d)(2). A state court’s fact-finding process is
unreasonable under § 2254(d)(2) only when we are “satisfied
that any appellate court to whom the defect is pointed out
would be unreasonable in holding that the state court’s
factfinding process was adequate.” Taylor v. Maddox,
366 F.3d 992, 1000 (9th Cir. 2004).
Here, there was no defect in the state supreme court’s
factfinding process. Although it might have been prudent to
provide Woods with the opportunity to develop the facts
underlying this aspect of his Brady claim, the state court’s
decision to deny him a hearing was based on its consideration
of the declarations of Dr. Brown and MacClaren that were
filed with the Washington Supreme Court. Although neither
declaration expressly denied the existence of an erroneous
draft report in Woods’s case, there is nothing in those

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declarations or anywhere else in the record to suggest that
such a report existed. It was not unreasonable for the
Washington Supreme Court to deny Woods’s request for a
hearing when all he could offer was speculation that an
evidentiary hearing might produce testimony or other
evidence inconsistent with Dr. Brown and MacClaren’s
declarations.
We further conclude that the Washington Supreme Court
did not make an unreasonable determination of the facts
under § 2254(d)(2) when it found that there was no showing
Dr. Brown destroyed evidence in this case. The only
evidence before the state court was that MacClaren reviewed
Dr. Brown’s test results and agreed with them. We agree
with the Washington Supreme Court that “the record does not
show that Dr. Brown intentionally destroyed exculpatory
evidence and then lied about it.” In re Woods, 114 P.3d at
622.
Because the state supreme court’s ruling was neither an
unreasonable application of federal law nor an unreasonable
determination of the facts, 28 U.S.C. § 2254(d)(1)–(2), we
affirm the district court’s denial of relief on this sub-claim.10

10

Woods also requested an evidentiary hearing in the district court to
develop his claim. Because our review of a claim adjudicated on the
merits by the state court under 28 U.S.C. § 2254(d)(1) is limited to the
record before the state court under Pinholster, 131 S. Ct. at 1398, we see
no need to afford Woods an opportunity to develop evidence in support of
his argument that the state supreme court unreasonably applied Brady. To
the extent that Woods attacks the state court’s factfinding, we have held
that where there is no defect in the state court’s factfinding process, as
here, “the state court’s findings are dressed in a presumption of
correctness, which then helps steel them against any challenge based on
. . . evidence presented for the first time in federal court.” See Taylor, 366

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B. Failure to disclose details of the spillage of Woods’s
first blood sample
Woods alleges that the State failed to disclose the full
details of the spillage of his first blood sample at WSPCL’s
laboratory in Spokane. Woods claims that this evidence
would have shown that there was a significant risk that the
rape kit swab taken from Jade Moore was contaminated when
Woods’s blood sample leaked, thus leading to a false positive
DNA match. The district court found that Woods did not
fairly present this sub-claim to the Washington Supreme
Court and ruled that the sub-claim was procedurally barred.
We agree.11

F.3d at 1000. Woods alleges no facts to support his claim beyond the
suspicion that the prosecution’s delay in obtaining and reporting DNA test
results indicates the destruction and non-disclosure of exculpatory
evidence. “Bare allegation[s],” “speculation,” and “wishful suggestions”
do not entitle a petitioner to an evidentiary hearing. Morris v. California,
966 F.2d 448, 455–56 (9th Cir. 1991). We therefore affirm the district
court’s denial of an evidentiary hearing.
11

Woods and the State disagree as to whether the COA includes the
earlier procedural rulings related to each claim or, rather, is limited only
to the claims as considered by the court in its final order. Woods argues
that the district court’s grant of a COA relates not only to the merits of the
claims but also to the procedural rulings associated with each claim. The
State, on the other hand, argues that the COA does not cover the
procedural rulings and therefore does not allow us to review whether
Woods’s second Brady sub-claim was properly exhausted. In his
Memorandum in Support of Motion for Certificate of Appealability filed
with the district court, Woods expressly requested that the COA include
the district court’s procedural rulings. See Woods v. Sinclair, No.
CV-05-0319-LRS (E.D. Wash. Dec. 29, 2008). In light of these
circumstances and the minimal showing that is required for a COA to
issue, see Lopez v. Schriro, 491 F.3d 1029, 1039 (9th Cir. 2007) (stating
that appellant need only show that reasonable jurists would find the

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State prisoners seeking a writ of habeas corpus from a
federal court must first exhaust their remedies in state court.
28 U.S.C. § 2254(b)(1)(A). A petitioner has exhausted his
federal claims when he has fully and fairly presented them to
the state courts. O’Sullivan v. Boerckel, 526 U.S. 838,
844–45 (1999) (“Section 2254(c) requires only that state
prisoners give state courts a fair opportunity to act on their
claims.”). “[F]or purposes of exhausting state remedies, a
claim for relief in habeas corpus must include reference to a
specific federal constitutional guarantee, as well as a
statement of the facts that entitle the petitioner to relief.”
Gray v. Netherland, 518 U.S. 152, 162–63 (1996); see also
Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008). A claim
that has not been fairly presented may also be deemed
technically exhausted if the petitioner has defaulted on the
claim in state court and no longer has a remedy in that court.
Coleman v. Thompson, 501 U.S. 722, 732 (1991). Although,
due to the state court default, a federal court may be
procedurally barred from reviewing such a claim. Id. at 750.
Here, Woods presented the state supreme court with both
the operative facts and legal theory of his sub-claim that the
State withheld evidence of WSPCL’s general testing and
review protocols, but he did not present facts relating to the
breakage of the vial containing his first blood sample at the
Spokane lab. Woods argues that, although his PRP never
expressly raised a claim about the spillage of his blood
sample and the potential for contamination of other evidence,

district court’s assessment of the constitutional claims debatable or
wrong), we agree with Woods that the COA should be construed to
encompass related procedural rulings. Therefore, we conclude that the
COA includes the question of whether Woods exhausted his second Brady
sub-claim, and we proceed to consider it.

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his state court Brady claim alleging the non-disclosure of
WSPCL’s practice of discarding erroneous draft reports was
sufficient to raise the issue of the prosecution’s failure to
disclose the mishandling of all the evidence related to DNA
testing. In his amended PRP, Woods unequivocally stated
that his Brady claim related to how WSPCL’s general
practices related to his case. Woods noted in his PRP that
“counsel moved to take depositions of Dr. Brown, William
Morig, and Donald MacLaren, all of the Washington State
Patrol Crime Lab, to determine the specific practices in this
case.” (emphasis added). Woods suggests this language was
sufficient to put the state supreme court on notice of the
second Brady sub-claim he raised in his federal habeas
petition.
Nowhere in the PRP’s Brady section, however, does
Woods mention the spillage of the first blood sample. Aside
from his request to depose Morig, Woods’s only reference in
the PRP to the forensic work at WSPCL’s Spokane facility
stated that Morig received the rape kit swabs, prepared
samples from the swabs, and sent the samples to other
laboratories to be tested. The Brady claim presented in the
PRP focuses entirely on the actions of Dr. Brown, both in the
Barfield case and in Woods’s case. Yet Dr. Brown had
nothing to do with the storage, spillage, and breakage of the
vial containing Woods’s first blood sample. In fact, Woods
does not allege that Dr. Brown even knew that a spillage
occurred. As discussed above, Dr. Brown’s conduct in the
Barfield case does not create a presumption that WSPCL, as
an organization, systematically suppressed exculpatory
material. We thus fail to see how the Brady claim in
Woods’s PRP, which spoke only to Dr. Brown’s procedures
for testing and analysis in the Seattle lab, gave the state
supreme court a full and fair opportunity to act on an

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allegation that the prosecution withheld evidence related to
the spillage of a blood sample at WSPCL’s Spokane
laboratory. Accordingly, we conclude that Woods failed to
present the facts underlying his second Brady sub-claim to
the Washington Supreme Court, and we affirm the district
court’s ruling that the sub-claim regarding the spillage of
Woods’s blood sample is technically exhausted but
procedurally barred.
Woods contends that the district court nonetheless should
have entertained his sub-claim because he established cause
for the procedural default and prejudice resulting from his
failure to exhaust state remedies. See Banks v. Dretke,
540 U.S. 668, 690–91 (2004) (holding that petitioner would
be entitled to an evidentiary hearing in federal court if he
could show cause for his failure to develop the facts in
state-court proceedings and actual prejudice resulting from
that failure). For a Brady claim, cause and prejudice
“‘parallel two of the three components of the alleged Brady
violation itself.’” Id. at 691 (quoting Strickler, 527 U.S. at
282). A petitioner may establish cause by showing that the
prosecution’s suppression of evidence was the reason for the
petitioner’s failure to develop the factual basis of the claim in
state court. Id. Prejudice is established by showing that the
suppressed evidence is material for Brady purposes. Id.
Here, Woods argues that he failed to develop the facts of this
sub-claim because the State never disclosed the full details of
the spillage of his first blood sample. We agree with the
district court that this is insufficient to show that the
prosecution’s alleged suppression of evidence caused
Woods’s failure to develop his sub-claim in state court.
Notably, the prosecution disclosed before trial that the
vial containing Woods’s first blood sample had cracked and

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leaked at the Spokane lab. That disclosure put Woods on
notice that other evidence may have been contaminated.
Woods does not allege what further exculpatory facts the
prosecution possessed but failed to disclose. Moreover,
although Woods sought authorization from the Washington
Supreme Court to conduct certain discovery, neither his
discovery requests nor his request for an evidentiary hearing
specifically related to the spillage of the blood sample or the
possible contamination of other evidence. His failure to
develop the factual basis of his claim, therefore, cannot
properly be attributable to the prosecution’s failure to
disclose relevant evidence. We thus affirm the district court’s
dismissal of this sub-claim as procedurally defaulted.12

12

Woods also seeks an evidentiary hearing on the merits of this subclaim and on the issue of cause and prejudice as an excuse for his
procedural default. Under the AEDPA, 28 U.S.C. § 2254(e)(2):
[i]f the applicant has failed to develop the factual basis
of a claim in State court proceedings, the court shall not
hold an evidentiary hearing on the claim unless the
applicant shows that(A) the claim relies on(i) a new rule of constitutional law, made
retroactive to cases on collateral review by the
Supreme Court, that was previously
unavailable; or
(ii) a factual predicate that could not have
been previously discovered through the
exercise of due diligence; and
(B) the facts underlying the claim would be
sufficient to establish by clear and convincing
evidence that but for constitutional error, no

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X. INEFFECTIVE ASSISTANCE OF COUNSEL
Woods argues that he was denied his Sixth Amendment
right to effective assistance of counsel on the basis of a
number of deficiencies in his defense team’s performance.
The district court concluded that seven of these IAC subclaims had been properly exhausted before the state courts
and therefore considered them on the merits: (1) counsel’s
heavy workload; (2) counsel’s lack of experience and
training; (3) counsel’s failure to properly impeach witness
Johnny Knight; (4) counsel’s failure to investigate and
present Woods’s diminished capacity defense; (5) counsel’s
failure to investigate and present Woods’s voluntary
intoxication defense; (6) counsel’s failure to ensure that the
DNA autoradiograms went into the jury deliberation room;
and (7) counsel’s failure to object to the use of Woods’s alias,
“Michael A. Smith,” during the trial.
The district court also concluded that a number of the IAC
sub-claims were procedurally barred, including: (1) counsel’s
failure to address Venus’s recovered memories; (2) counsel’s
failure to adequately cross-examine Venus on her prior false

reasonable factfinder would have found the
applicant guilty of the underlying offense.Woods
cannot meet this high standard. Woods fails to
allege what facts relevant to his Brady claim or to
the issue of cause and prejudice will be uncovered
by an evidentiary hearing aside from the suspicion
that the prosecution might have been hiding
information relating to DNA contamination. We
agree with the district court that these speculative
allegations do not meet the required showing under
§ 2254(e)(2), and we affirm the district court’s
denial of an evidentiary hearing.

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allegation that Woods had raped her; (3) counsel’s failure to
call a DNA expert to contest the DNA evidence; and
(4) counsel’s failure to investigate adequately the potential
DNA contamination caused by the broken vial of Woods’s
blood.
Both parties agree that the Supreme Court’s decision in
Strickland v. Washington, 466 U.S. 668 (1984), constitutes
“clearly established federal law” providing the proper
framework for assessing Woods’s IAC claims. Under the
AEDPA, the primary issue is whether the state court
adjudication of the Strickland claims was objectively
reasonable. Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
To prevail on an IAC claim under Strickland, a petitioner
must show (1) “that counsel’s performance was deficient,”
and (2) “that the deficient performance prejudiced the
defense.” Strickland, 466 U.S. at 687. In evaluating IAC
claims, “our cases require that . . . [we] use a ‘doubly
deferential’ standard of review that gives both the state court
and the defense attorney the benefit of the doubt.” Burt v.
Titlow, 134 S. Ct. 10, 13 (2013) (quoting Pinholster, 131 S.
Ct. at 1403).
As to the first prong, a petitioner must prove that
counsel’s performance was so deficient that it “fell below an
objective standard of reasonableness.” Strickland, 466 U.S.
at 688. The Supreme Court has instructed lower courts to
“indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance
. . . .” Id. at 689. As to the second prong, petitioner “must
show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceedings
would have been different.” Id. at 694. Finally, even if
Woods can satisfy both of those prongs, the AEDPA requires

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that a federal court find the state court’s contrary conclusions
are objectively unreasonable before granting habeas relief.
See Landrigan, 550 U.S. at 473.
We first review those claims that the district court
addressed on the merits, and then consider those the district
court concluded were technically exhausted but procedurally
barred.
A. Counsel’s inexperience and caseload
Woods argues that, because his two primary defense
attorneys faced unmanageable caseloads and were
inexperienced in capital litigation, their performance was
deficient. The district court rejected that argument, and so do
we.
Woods points out several troubling aspects of his
counsel’s experience and caseload. For example, neither of
Woods’s attorneys had ever tried a capital case before. One
of Woods’s attorneys was the lead attorney on four other
murder cases during the time he was representing Woods,
while the other was responsible for three other aggravated
murder cases. In fact, just weeks before trial, Woods’s
defense attorney requested an extended continuance,
explaining that he had never prepared for a case of this
magnitude before and that he did not feel comfortable
beginning the trial. The court denied this request. Despite
these alleged deficiencies, these circumstances do not, in and
of themselves, amount to a Strickland violation. Rather,
Woods must point to specific acts or omissions that may have
resulted from counsel’s inexperience and other professional
obligations. See Strickland, 466 U.S. at 690. Thus, Woods
is not entitled to relief on this sub-claim alone.

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B. Diminished capacity defense

Woods claims that his attorneys should have investigated
and pursued a diminished capacity defense. The state
supreme court concluded:
[I]t was reasonable for [Woods’s] counsel to
pursue the alibi defense rather than
diminished capacity because Woods
continuously denied his involvement in the
crimes. To pursue the diminished capacity
defense would have required Woods to
essentially admit that he committed the
murders, a position entirely inconsistent with
his contention that he did not commit the
murders.
In re Woods, 114 P.3d at 618.
The district court agreed, adding that Woods’s staunch
insistence on his innocence made it reasonable for counsel to
“cho[o]se to pursue a defense of alibi and mistaken
identification rather than a defense of diminished capacity,
the latter of which had a high probability of failure.” Order
Denying Petition, Supplement, and Revised Petition for a
Writ of Habeas Corpus at 44, Woods v. Sinclair, No.
2:05-cv-00319-LRS (E.D. Wash. Feb. 5, 2009), ECF No. 185
[hereinafter Dist. Ct. Order]. The Washington Supreme
Court and the district court also agreed that, even if counsel’s
performance had been deficient, the failure to present a
diminished capacity defense was harmless in light of the
strong evidence of Woods’s premeditation. See Dist. Ct.
Order, supra at 44–45; In re Woods, 114 P.3d at 618–19.
Woods argues that the state court’s determination on this

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issue was objectively unreasonable and that he is entitled to
an expansion of the record and an evidentiary hearing. We
need not address whether Woods’s counsel’s performance
was deficient because we conclude he cannot demonstrate
prejudice and is therefore not entitled to habeas relief on this
sub-claim.
To be entitled to habeas relief, Woods must demonstrate
that the Washington Supreme Court unreasonably concluded
that counsel’s performance did not prejudice him. The
Washington Supreme Court held that, “[e]ven if Woods’
attorneys failed to investigate the diminished capacity
defense, it is harmless error because there is strong evidence
of premeditation by Woods.” Woods, 114 P.3d at 618–19.
Under the second prong of Strickland, to demonstrate
prejudice, Woods must show that it is reasonably probable
that the outcome of his trial would have been different had
counsel conducted a reasonable investigation into his
diminished capacity defense. 466 U.S. at 694. “A reasonable
probability does not mean that we must determine that the
jury more likely than not would have returned a verdict for
something beside [sic] first degree murder, but only that
[defendant] has shown ‘a probability sufficient to undermine
confidence in the outcome.’” Jennings v. Woodford,
290 F.3d 1006, 1016 (9th Cir. 2002) (quoting Strickland, 466
U.S. at 694). Thus, Woods must demonstrate that it was
objectively unreasonable for the state court to conclude that
his counsel’s deficient performance did not affect, or
otherwise undermine confidence in, the outcome of his trial.
Even assuming that Woods’s counsel were
constitutionally deficient in their performance, the state
court’s determination that this deficiency was not prejudicial
was objectively reasonable. According to Woods, his counsel

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should have conducted further investigation into a diminished
capacity defense. Yet, as the state supreme court noted, even
if counsel had unearthed significant evidence of Woods’s
diminished capacity, “[t]o pursue the diminished capacity
defense would have required Woods to essentially admit that
he committed the murders, a possibility entirely inconsistent
with his contention that he did not commit the murders.” In
re Woods, 114 P.3d at 618. Woods failed to present the
Washington Supreme Court with any evidence (or even a
declaration) that he would have been willing to abandon his
alibi defense if presented with an alternative diminished
capacity defense. We thus cannot say that the state court’s
determination on this sub-claim was objectively
unreasonable.
C. Voluntary intoxication defense
Woods faults counsel for not adequately investigating and
presenting a voluntary intoxication defense. Although related
to a diminished capacity defense, voluntary intoxication
constitutes a separate cognizable defense under Washington
law. See State v. Hackett, 827 P.2d 1013, 1016 n.3 (Wash.
Ct. App. 1992) (per curiam) (holding that the voluntary
intoxication defense applies to intoxication by drugs as well
as alcohol, and that a diminished capacity instruction was not
broad enough to cover voluntary intoxication falling short of
mental illness or disorder).
Although this type of alleged deficiency may prejudice a
defendant, see Seidel v. Merkle, 146 F.3d 750, 757 (9th Cir.
1998) (finding prejudice where counsel completely failed to
investigate his client’s mental health despite abundant signs
in the record that his client suffered from mental illness);
Jennings, 290 F.3d at 1019 (finding prejudice where counsel

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failed to investigate and present mental health defenses and
noting that the jury deliberated for two full days despite
overwhelming evidence against the defendant), here we are
not convinced that the state court’s determination to the
contrary was objectively unreasonable. Woods failed to
submit any evidence that, had his defense counsel presented
him with the option to pursue this defense, he would have
agreed to it. In fact, the evidence before the state trial court
demonstrated that Woods was insistent upon his innocence
and that, in all probability, he would have rejected any
defense requiring him to admit guilt. In sum, whether or not
Woods’s counsel’s performance was constitutionally
deficient, the Washington Supreme Court’s determination
that this failure did not prejudice Woods was not objectively
unreasonable. Woods is therefore not entitled to relief on this
sub-claim.
D. Cross-examination of witness Johnny Knight
Woods alleges that counsel did not properly crossexamine Johnny Knight about (1) his prior theft conviction
and (2) his statements to police that increasingly incriminated
Woods over time. We address those arguments in turn.
Johnny Knight, one of the State’s key witnesses, falsely
denied any prior theft conviction during direct and crossexamination.
Woods argues that his counsel was
constitutionally deficient in failing to impeach Knight’s
testimony with a copy of the theft conviction record. In
rejecting this argument, the Washington Supreme Court held:
[T]he failure to obtain the certified copy of
judgment and conviction does not establish
deficiency. We say that because questioning

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from the prosecution and defense established
that all parties were aware that Knight had a
theft conviction. In fact during questioning,
Knight volunteered information about other
convictions as well. Thus, it is clear that the
jury was aware they were listening to a
witness with multiple convictions. In effect,
Knight impeached himself.

In re Woods, 114 P.3d at 619 (internal footnote omitted).
This characterization of the record is not quite accurate.
Rather, Knight denied having a theft conviction and, after
Woods’s attorney objected, admitted that he had been
convicted of a “drug transaction.” After a brief colloquy with
counsel, the trial judge stated in open court: “[Knight is]
subject to recall or you can just put in the evidence about the
conviction.” Woods’s counsel then moved on to other lines
of questioning without asking any further questions about the
theft conviction or introducing any evidence pertaining to it.
Whether or not the failure to introduce the certified copy
of Knight’s prior judgment and conviction was deficient, we
are convinced that the state supreme court’s determination
that Woods was not prejudiced by that failure was not
objectively unreasonable. The jury was indeed made aware
that Knight had been convicted of a crime. Woods argues
that Knight’s admission of his drug conviction is irrelevant
because a conviction for a “drug transaction” is not
comparable to a theft conviction because drug crimes are not
crimes of dishonesty under Washington law. See State v.
Hardy, 946 P.2d 1175, 1178 (Wash. 1997). While we agree
that a drug conviction may not be as valuable for
impeachment purposes as a theft conviction, we cannot say
that the counsel’s failure to elicit Knight’s admission to a

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theft conviction was sufficiently prejudicial to render the state
supreme court’s determination objectively unreasonable.
Nor is Woods entitled to relief on the basis of his
counsel’s failure to confront Knight with evidence that his
statements to police changed significantly after he was
charged with three felonies. On April 28, 1996, the police
questioned Knight and reported: “Johnny Knight denied
having knowledge of the assaults or intention of any assaults
that [Woods] may have been involved in.” On May 7, 1996,
Knight was re-interviewed by the police and again said
nothing about Woods confessing to the assaults.
On February 13, 1997, however, Knight was arrested for
drug and firearm crimes for which he could face significant
prison time. A week later, police interviewed Knight in jail,
and he alleged for the first time that on the day after the
murders, Woods confessed that he had killed the women.
During this interview, Knight also told police that when he
met up with Woods after the murders, Woods had women’s
jewelry, cash, and some credit cards which had been taken
from the victims. Additionally, Knight claimed that Woods
said he needed “to get out of Spokane.”
By the time of Woods’s trial, Knight had been convicted
of several felonies stemming from his arrest and had been
sentenced to 10 years in prison. The jury at Woods’s trial did
not learn of Knight’s conviction and sentence. Woods argues
that counsel’s failure to make the jury aware of Knight’s
arrest as a possible reason for the change in Knight’s story
constituted a Strickland violation.
The Washington Supreme Court never addressed this subissue in its decision, nor did Woods’s personal restraint

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petition raise it. Nonetheless, the district court concluded that
this claim had been properly exhausted because the new
factual allegations did not fundamentally alter the legal claim
already considered by the state court.13 The district court thus
considered this issue on the merits, as do we. Irrespective of
whether Woods’s counsel was deficient in failing to raise
Knight’s arrest at trial, that failure did not prejudice Woods.
Ample evidence was presented to the jury that Knight was an
untrustworthy witness: he had admitted to a drug conviction
and to receiving a reward for information leading to Woods,
and defense counsel impeached Knight on the stand for
having misrepresented the amount he received as a reward.
Accordingly, there is not a “reasonable probability that . . .
the result of the proceeding would have been different” had
Knight been further impeached with his February 1997 arrest
and related convictions. Strickland, 466 U.S. at 694. Thus,
Woods is not entitled to habeas relief on this claim.
E. Woods’s alias
Woods contends that his trial counsel’s failure to object
to the use of Woods’s alias, “Michael A. Smith,” was
constitutionally deficient and prejudicial. The Washington
Supreme Court, however, determined that the use of the alias
was proper under state law as “relevant and material to prove
or disprove any of the issues in the case.” 114 P.3d at 619
(citing State v. Elmore, 985 P.2d 289, 310 (Wash. 1999);
State v. Cartwright, 456 P.2d 340, 342 (Wash. 1969)).
Specifically, the Washington Supreme Court determined that,

13

The district court denied Woods’s request to introduce new evidence
supporting this claim. In his supplemental brief, Woods concedes that this
ruling was correct in light of the Supreme Court’s decision in Pinholster.
131 S. Ct. at 1398.

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because the identity of the perpetrator was at issue, because
Woods was booked at the jail under the name “Michael A.
Smith,” and because two of the fingerprints that were found
at the crime scene were identified as belonging to “Michael
Smith,” the use of the alias was appropriate to identify Woods
as the perpetrator. Id. That determination of state law is
binding on this court. Bradshaw v. Richey, 546 U.S. 74, 76
(2005). Thus, even assuming Woods’s attorney was deficient
for not objecting to the use of his alias, we cannot conclude
that it was prejudicial; even had defense counsel made the
objection, it would have been properly overruled. Woods is
therefore not entitled to habeas relief on this claim.
F. The State’s DNA evidence
Woods argues that his trial counsel failed to effectively
challenge the State’s DNA evidence. Specifically, Woods
alleges that his counsel were ineffective in the following three
ways: (1) they failed to present a defense expert to interpret
the results of the DNA tests; (2) they failed to explore the
issue of DNA contamination; and (3) they failed to ensure
that the jury could examine the autoradiograms (“autorads”).
The district court did not reach the merits of claims
(1) and (2) (collectively the “DNA–IAC” claims) because it
concluded that these claims had not been presented to the
Washington Supreme Court and were therefore technically
exhausted, but procedurally defaulted. See Wash. Rev. Code
§ 10.73.090; see also Coleman, 501 U.S. at 732, 735 n.1.14

14

As discussed above, the district court did not specify whether the
COA encompassed procedural issues related to Woods’s IAC claim or
only those parts of the claim that the district court determined were
exhausted and, therefore, considered on the merits in its final judgment.

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With respect to issue (3) above, the court held that because
the trial court correctly refused to send the autorads to the
deliberation room for consideration, Woods could not prevail
on his IAC claim related to the autorads. We consider first
Woods’s DNA–IAC claims and then address the merits of
Woods’s autorad claim.
1. DNA–IAC Claims
The State argues that the factual and legal allegations
underlying Woods’s DNA–IAC claims were never presented
to the state supreme court, the state court never ruled on the
claims, and the claims are now procedurally defaulted.
Woods initially argued that he fairly presented these claims
in state court and therefore the district court erred in
concluding that these were procedurally defaulted. In his
supplemental briefing, post-remand, Woods now concludes
that these claims were procedurally defaulted. In our prior
opinion, we did not resolve this issue. Instead, we concluded
that even if these claims had been properly exhausted, Woods
could not show that he was entitled to habeas relief. We now
conclude that the claims were not fairly presented in the state
court. It is undisputed that the first specific reference to
defense counsel’s failure to explore the possibility of DNA
contamination and present the testimony of a defense DNA
expert was in Woods’s federal habeas petition. We therefore
agree with the parties and the district court that these claims
were procedurally defaulted.

As noted in footnote 11, we construe the COA to encompass both the
specific enumerated claims and any related procedural issues. Therefore,
we consider whether the DNA–IAC claims were properly exhausted in
state court.

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Woods argues, nonetheless, that even if these claims are
procedurally defaulted, the default should be excused because
it was due to ineffective representation by his state postconviction counsel. In Martinez, the Supreme Court held
that, in some circumstances, ineffective representation by
post-conviction counsel may provide a basis for excusing a
procedural default. 132 S. Ct. at 1320. “[T]o establish
‘cause’ to overcome procedural default under Martinez, a
petitioner must show: (1) the underlying ineffective
assistance of trial counsel claim is ‘substantial’; (2) the
petitioner was not represented or had ineffective counsel
during the [post-conviction relief (“PCR”)] proceeding;
(3) the state PCR proceeding was the initial review
proceeding; and (4) state law required (or forced as a practical
matter) the petitioner to bring the claim in the initial review
collateral proceeding.” Dickens v. Ryan, 740 F.3d 1302, 1319
(9th Cir. 2014) (citing Trevino v. Thaler, ––– U.S. –––, 133
S. Ct. 1911, 1918 (2013)).
We begin by addressing the latter two Martinez
requirements. Woods argues that these two requirements are
satisfied because Woods’s DNA-IAC claims were not raised
on direct appeal and, as a practical matter, could not have
been raised on direct appeal because they rely on extra-record
evidence (e.g. a declaration from a DNA expert, Dr. Donald
E. Riley) and Washington law does not permit consideration
of “matters outside the trial record” on direct appeal. State v.
McFarland, 127 Wash. 2d 322, 335, 899 P.2d 1251, 1257
(1995). In the State’s supplemental brief addressing the
significance of Martinez, the State essentially argued that the
exception recognized in Martinez was limited to cases where
state law categorically prohibits a defendant from raising IAC
claims on direct appeal, and that Martinez does not apply
where state law only prohibits a defendant from relying on

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extra-record evidence to support IAC claims raised on direct
appeal. We reject this argument. After the State’s brief was
filed, the Supreme Court held in Trevino that, although Texas
law did not expressly require IAC claims to be raised on
collateral review, Martinez still applied because Texas law
limited claims on direct review to the trial record, thus
making it “virtually impossible for appellate counsel to
adequately present an ineffective assistance [of trial counsel]
claim on direct review.” 133 S. Ct. at 1918. The Washington
rule, by limiting the evidence on direct appeal to the record,
see McFarland, 899 P.2d at 1257, poses the same practical
barrier to raising IAC claims as the Texas rule at issue in
Trevino.15 Thus, the third and fourth Martinez requirements
are met.
As to the first two Martinez requirements —substantiality
and ineffective assistance of PCR counsel—the state argues
that the defaulted IAC claims are meritless and that Woods
therefore cannot show PCR counsel provided ineffective
assistance of counsel by failing to raise them in the state
court. The dissent similarly argues that Woods’s claims are
meritless and that we should therefore reject Woods’s
Martinez arguments. However, given the nature of the IAC
claims, we believe that the substantiality and ineffectiveness
issues should be addressed in the first instance by the district
court. As Judge Watford observed in Detrich, determining
whether these requirements are satisfied generally “requires
a highly fact- and record-intensive analysis.” 740 F.3d at

15
The State also argued that its position is supported by the Eighth
Circuit’s decision in Dansby v. Norris, 682 F.3d 711, 729 (8th Cir. 2012).
Dansby has since been vacated and remanded to the Eighth Circuit for
further consideration in light of Trevino. See Dansby v. Hobbs, 133 S. Ct.
2767 (2013).

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1262 (Watford, J., concurring). Here, evaluating the
substantiality of the new IAC claims requires consideration
of the State’s DNA evidence and the reliability and propriety
of the inferences the State’s expert drew from it, as well as
the likelihood that the DNA evidence was contaminated.
Even the State acknowledges that “[t]he new claims . . .
involve multifaceted allegations of a scientific nature,
concerning counsel’s investigations into the DNA evidence,
the State’s handling of the DNA evidence, and an expert’s
review of the DNA evidence.” Moreover, Woods argues that,
on remand, he should be afforded an evidentiary hearing and
an opportunity to expand the record. With an appropriate
showing, he may pursue such remedies in the district court.
See Dickens, 740 F.3d at 1321; Detrich, 740 F.3d at 1246–47
(four-judge plurality opinion). Allowing the district court to
consider these issues in the first instance and to potentially
conduct an evidentiary hearing will greatly aid this court’s
review. Detrich, 740 F.3d at 1262 (Watford, J., concurring).
We therefore remand to the district court so that it may
determine in the first instance whether Woods’s DNA-IAC
claims are substantial and whether PCR counsel was
ineffective for failing to raise them. Id. at 1254 (four-judge
plurality opinion); see also Dickens, 740 F.3d at 1320.16

16

We leave for the district court to resolve whether an evidentiary
hearing should be held in connection with Woods’s Martinez claims. To
the extent that the State argues that Pinholster and § 2254(e)(2)
categorically bar Woods from obtaining such a hearing or from presenting
extra-record evidence to establish cause and prejudice for the procedural
default, we reject this argument. See Dickens, 740 F.3d at 1320–22;
Detrich, 740 F.3d at 1247.

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2. The autoradiograms

Woods argues that his counsel’s failure to ensure that the
DNA autorads17 went into the jury room amounted to a
Strickland violation. At trial, the autorads were used to help
illustrate Dr. Brown’s testimony regarding DNA. In re
Woods, 114 P.3d at 621. The jurors were informed that the
autorads were for demonstrative purposes only. Id. During
deliberations, the jury asked to see the autorads, but the trial
court denied the request on the basis that they were only used
for illustrative purposes. Id. Neither the prosecution nor
defense counsel objected to this ruling. Id.
The Washington Supreme Court held that, “when an
exhibit is used for illustrative purposes only and the jurors are
instructed that the exhibit is not evidence, than [sic] the
exhibit should not go to the jury room.” Id. at 622 (citing
State v. Lord, 822 P.2d 177, 194 (Wash. 1991)). Thus, the
court held that the trial court correctly refused to send the
autorads to the deliberation room for consideration. Id. at
428. We are bound to defer to that interpretation of
Washington state law. See Bradshaw, 546 U.S. at 76. In
light of that ruling, Woods cannot show prejudice resulting
from his counsel’s failure to object to the trial court’s
exclusion of the autorads from the jury deliberation room.
Even if defense counsel had objected, the objection would
have been properly overruled under Washington law. Woods
is therefore not entitled to habeas relief on this claim.

17

An autoradiogram is “a photographic recording of the positions on a
film where radioactive decay of isotopes has occurred.” Committee on
DNA Technology in Forensic Science et al., DNA Technology in Forensic
Science 167 (1992).

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G. Venus Shaver’s testimony
In his federal habeas petition, Woods asserted that he
received ineffective assistance of counsel when his trial
counsel failed to address Venus Shaver’s “recovery” of her
memory of the attack and failed to cross-examine her
adequately on her prior false claim that Woods raped her.
The district court concluded that because Woods had failed
to fairly present these claims to the state court, they were
procedurally barred. We agree that these claims were not
fairly presented to the state court.
In his opening brief, Woods admits that he did not
specifically address in his PRP his counsel’s failure to
impeach Venus Shaver effectively. In fact, Woods’s
Washington Supreme Court PRP makes no mention of either
Venus Shaver or her “recovered” memories. He argues,
however, that because these new arguments do not
fundamentally alter his claim that trial counsel were
ineffective and unprepared to impeach witnesses, he fully and
fairly presented them to the state court.
Although Woods alleged the specific Sixth Amendment
guarantee recognized by Strickland, his state court petition
did not make any reference to his counsel’s failure to impeach
Venus Shaver. The most analogous claim is Woods’s
allegation that his counsel failed to impeach Johnny Knight
properly. That claim simply did not provide a sufficient
factual basis for the state supreme court to have a fair
opportunity to apply controlling legal principles to the facts
relating to the claim. Thus, Woods’s claim relating to Venus
Shaver was not fairly presented and may be procedurally
defaulted.

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Woods contends, however, that he has established cause
and prejudice excusing his procedural default on this issue.
In particular, he contends that his failure to raise this issue
before the state supreme court was a result of ineffective
assistance of his post-conviction counsel. We vacate the
district court’s ruling and remand this claim to the district
court so that it may consider in the first instance whether
Woods can show cause and prejudice under Martinez.
H. Cumulative Deficiencies
Woods argued in his PRP that the cumulative impact of
his counsel’s deficiencies prejudiced his defense and requires
reversal of his conviction. We have previously recognized
that “prejudice may result from the cumulative impact of
multiple deficiencies.” Cooper v. Fitzharris, 586 F.2d 1325,
1333 (9th Cir. 1978). “[A]lthough individual errors may not
rise to the level of a constitutional violation, a collection of
errors might violate a defendant’s constitutional rights.”
Davis, 384 F.3d at 654 (citing Harris v. Wood, 64 F.3d 1432,
1438 (9th Cir. 1995)). Although Woods’s trial counsel might
not have provided a model defense, counsel’s “missteps and
misjudgments did not render [Woods]’s trial fundamentally
unfair.” Id. We therefore affirm the denial of relief on
Woods’s claim of cumulative deficiency.18

18

This holding is subject to the caveat that, should the district court
ultimately conclude that Woods’s procedural default of his DNA-IAC and
Venus Shaver-related IAC claims was excusable and that trial counsel’s
assistance was ineffective with respect to these subjects, the district court
may reevaluate whether the cumulative impact of counsel’s deficiencies
requires reversal.

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XI. CONCLUSION
For the foregoing reasons, we affirm in part and vacate in
part the district court’s denial of Woods’s petition. We
remand for the district court to consider in the first instance
whether Woods can show cause and prejudice under
Martinez.
AFFIRMED in part, VACATED in part, and
REMANDED.

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TALLMAN, Circuit Judge, concurring in part and dissenting
in part:
The Supreme Court gave Dwayne Woods an inch. The
majority gives him a mile. When the Court remanded this
case to the same panel that affirmed Woods’s sentence in
2011, it gave Woods the opportunity to argue that his four
procedurally defaulted claims deserved a federal audience.
But none of these new claims cast any doubt on Woods’s
manifest guilt for the brutal murders of Jade Moore and
Telisha Shaver on April 27, 1996. Fortunately, the third
victim of his senseless violence, Venus Shaver, survived to
testify against him at trial. And even Woods himself invited
his death sentence when, at the penalty phase of the trial, he
told the jury that he had “no objection” to a death sentence,
and asked them to “go back and return a vote to impose the
death penalty.”
Because none of Woods’s new claims would lead a
reasonable juror to conclude that Woods did not murder Jade
Moore and Telisha Shaver, or attempt to murder Venus
Shaver, no court can provide Woods the relief he seeks. The
majority’s remand serves only one purpose: unnecessary
delay. I respectfully dissent from Sections X.F.1, X.G, and
footnote 18 of the majority opinion.
I
On remand from the Supreme Court, we must now
consider whether Woods’s four procedurally defaulted claims
meet the narrow requirements of Martinez v. Ryan, 132 S. Ct.
1309 (2012). Woods alleges that his trial counsel provided
ineffective assistance by failing to: (1) call an expert witness
to refute Venus Shaver’s claim that she had recovered

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memories of the attacks; (2) cross-examine Venus about a
false rape allegation against Woods; (3) call a defense expert
to interpret the results of the State’s DNA evidence; and
(4) explore the possibility of DNA contamination. Woods
argues that the ineffectiveness of his post-conviction counsel
(“PCR counsel”) excuses the procedural default of these four
claims, and that had the jury heard more on these topics, there
is a substantial possibility he would have been acquitted.
But Woods is entitled to a remand under Martinez only if
he can show that: (1) PCR counsel was ineffective under
Strickland v. Washington, 466 U.S. 668 (1984), for not
raising a claim of ineffective-assistance-of-trial-counsel
(“IAC”), and (2) “the underlying ineffective-assistance-oftrial-counsel claim is a substantial one, which is to say that
. . . the claim has some merit.” Martinez, 132 S. Ct. at 1318.
The Supreme Court has said that to succeed on a
Strickland IAC claim, Woods must show not only that his
trial counsel was deficient but also that this deficient
performance caused prejudice. Strickland, 466 U.S. at 694.
Even if Woods proves that his trial counsel was manifestly
ineffective, Woods cannot prevail unless he shows
prejudice—“a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Id. Because Woods challenges only his
conviction (and not his death sentence), he must demonstrate
that his new claims would cause at least one reasonable juror
to find him “not guilty” of the murders of Jade Moore and
Telisha Shaver, or the attempted murder of Venus Shaver.
This is simply not possible in the face of the incriminating
evidence against him.

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None of Woods’s new claims can refute the strength of
the inculpatory evidence conclusively demonstrating his
guilt: (1) Sherry Shaver’s identification of Woods as the man
she saw fleeing the crime scene on the morning of the
murders; (2) Jade Moore’s statements to a treating paramedic,
nurse, and physician, before she succumbed to her injuries,
that “a man named Dwayne” hit her “with a baseball bat” and
“sexually assaulted” her, and Jade’s statements to her father
that her attacker was “Dwayne,” “a guy that Venus had been
going out with”; (3) expert testimony that Woods’s latent
fingerprints were found on a bottle and on a telephone in the
trailer; (4) the fact that Woods’s coat and shirt were found at
the crime scene; and (5) paging and telephone records
demonstrating that Woods’s pager had been called from the
trailer a few hours before the murders. Nor do Woods’s new
claims refute the fact that, immediately after the murders,
Woods was seen at two businesses near the crime scene, and
was then dropped off in downtown Spokane near a number of
ATMs where Jade Moore’s stolen ATM card was used to
make withdrawals. Finally, the new claims do not challenge
Woods’s statements to a friend that he was “a wanted man,”
or that Woods led police on a car chase as they attempted to
apprehend him, permitting the jury to infer his consciousness
of guilt.
The strength of the evidence against Woods was
overwhelming. As a result, there is no way Woods can show
that, but for counsel’s errors, a reasonable juror would have
found that Woods did not murder Jade Moore and Telisha
Shaver or attempt to murder Venus Shaver. While it may be
“standard practice” for us “to remand to the district court for
a decision in the first instance without requiring any special
justification for so doing,” we need not do so “where there is
little doubt about the correct answer.” Detrich v. Ryan,

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740 F.3d 1237, 1248 (9th Cir. 2013) (four-judge plurality
opinion). The majority does not tell us what the district court
should do on remand in the face of this record other than
reiterate this obvious conclusion. Because Woods cannot
possibly show prejudice under Strickland, his new claims are
not “substantial,” and a remand to the district court is
unwarranted even under Martinez. See also Lopez v. Ryan,
678 F.3d 1131, 1139 (9th Cir. 2012) (concluding that a claim
was not substantial under Martinez where the petitioner could
not show prejudice under Strickland).
II
Even if I thought it necessary to review the performance
of Woods’s trial counsel, I would reach the same conclusion:
Woods is not entitled to a remand. None of Woods’s newly
alleged IAC claims demonstrate that Woods’s counsel’s
performance “fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 687–88. Nor would
any of Woods’s specific claims have been reasonably likely
to change the outcome of his trial. Because Woods’s new
claims have no merit, they are not substantial under Martinez.
A
Woods first alleges that Venus Shaver “had complete
amnesia of the events of April 27, 1996.” Dr. Demakas, a
neurosurgeon who treated Venus, testified that when he was
first examining Venus in the emergency room, she “did not
recall what happened” and “was amnesic from the accident.”
At that time, Venus was still suffering from the immediate
side effects of blunt head trauma and a large skull fracture.
Woods argues that, by the time of trial, Venus had recovered
“considerable memory of the events,” and he contends that

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his counsel was ineffective for failing to call a
neuropsychologist who would have testified that such
memory recovery is impossible. But Woods’s new claim is
much ado about nothing.
While Dr. Demakas did testify that Venus was “amnesic,”
he also stated that, while it would not be “uncommon” for
Venus to recover memories, these memories might be out-oforder or influenced by suggestive stimuli. Thus, through Dr.
Demakas’s testimony, the jury heard that Venus did not
immediately recall the events of that evening, and that any
recovered memories could be suspect. Additional testimony
on this point would have been largely cumulative.
Also, Venus’s memory problems were discussed at length
during the trial by Venus herself. Venus recalled in great
detail bringing Woods to her house, Woods growing angry,
Woods sexually assaulting her, Woods slamming her head
into a door, and her repeated attempts to get Woods to leave.
After that, however, her memory went blank. The “last thing
[she] saw” was “[Woods] coming up to [her].” In response
to counsel’s question of “what happens then?” Venus said she
“[didn’t] remember . . . probably cuz [sic] I got hit.” She
repeatedly recognized that her memory of the remainder of
the evening was practically non-existent. But the jury could
easily fill in the rest of the story from all available evidence,
including the recovery from the crime scene of an aluminum
baseball bat stained by human blood and the large skull
fracture in Venus’s head consistent with being hit by a blunt
instrument.
Although Venus could not recall the events of the rest of
the evening, except for a few “flashes of memories,” defense
counsel expressly suggested to the jury what the source of

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Venus’s recovered memories really were: newspaper articles,
television accounts, and family statements. Defense counsel
got Venus to admit on cross-examination that: (1) she had
read a lengthy news article about the case while in the
hospital even though she knew she wasn’t supposed to;
(2) she had watched television accounts of the attack; (3) a
television account featured a picture of Woods; (4) she spoke
with her family at the hospital about what happened to her;
and (5) Dr. Demakas told her that she would have “flashes of
memories” about the attacks.
Woods alleges that his counsel should have called an
expert to testify on the issue of recalled memory. But the
expert’s proposed testimony would have been cumulative.
Given that counsel had introduced ample evidence of Venus’s
memory problems, counsel’s failure to introduce expert
testimony on this point was not deficient under Strickland.
The jury heard all of the impeachment through competent
cross-examination but obviously believed the eyewitness
victim who was present when Woods committed his atrocious
crimes. No remand is appropriate on this insubstantial claim.
See Sexton v. Cozner, 679 F.3d 1150, 1157–58 (9th Cir.
2012).
B
Woods next argues that counsel should have aggressively
challenged Venus regarding a statement she allegedly made
accusing Woods of rape. But Woods fails to show that his
counsel’s decision not to cross-examine Venus was deficient.
As the victim of this savage attack, Venus was an extremely
sympathetic witness. Arguably, Woods’s counsel acted
wisely by not pursuing this point on cross-examination to
avoid further alienating the jury. This strategic decision, by

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understandably wary defense counsel, is essentially insulated
from Strickland reversal. Id. at 1156; Strickland, 466 U.S. at
689. For that reason, Woods’s counsel was not deficient.
C
Next, Woods challenges his counsel’s failure to call an
expert to interpret the results of a DNA test implicating
Woods. At trial, the State’s DNA expert, Dr. John Brown,
testified that the male DNA recovered from the crime scene
matched Woods’s DNA at four of six loci. Dr. Brown
concluded that, at the other two loci, the results were
inconclusive, although they did not exclude Woods as the
donor. Woods argues that, if called to testify, Dr. Donald
Riley would have explained that the results at five of the six
loci were inconclusive, meaning that Woods’s DNA
conclusively matched the DNA recovered at the crime scene
at only one locus. But even if Woods’s counsel was deficient
for failing to rigorously challenge the DNA evidence with the
assistance of a qualified DNA expert, Woods would have, at
best, only neutralized this evidence, a narrow sliver of the
State’s overwhelming case against him. Even without the
DNA, a jury would still find Woods guilty as charged.
D
Finally, Woods claims that his counsel was ineffective for
failing to argue that a blood spill in the crime lab might have
led to Woods’s blood sample being commingled with vaginal
swabs taken from Jade Moore. At trial, State crime lab
forensic scientist William Morig explained that Woods’s
blood vial spilled in an area of the lab where hair examination
took place. Morig testified that once the spill was discovered,
the sample was immediately destroyed.
On cross-

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examination, Woods’s counsel re-confirmed the spill. Thus,
on two separate occasions, the jury heard that a spill took
place in the lab. Trial counsel was not ineffective for
declining to introduce additional cumulative testimony on this
point. Because the claim is not “substantial” under Martinez,
there is no need to remand.
III
In support of their decision to remand, my colleagues note
that “[a]llowing the district court to consider these issues in
the first instance and to potentially conduct an evidentiary
hearing will greatly aid this court’s review.” Opinion at 51.
They cite to Detrich, where we chose to remand the Martinez
question to the district court to allow it to decide the merits
first. But even Detrich recognized that if the evidence of
guilt was “overwhelming and unassailable,” then “we could
safely conclude that [the petitioner] has no real chance of
showing that his new trial-counsel IAC claims are
‘substantial.’” Detrich, 740 F.3d at 1249. Such is the case
here. Because Woods’s guilt is manifest, we can declare on
the current record that his claims are not substantial. See
Sexton, 679 F.3d at 1158 (concluding that remand to the
district court was improper under Martinez because Sexton’s
claim was not “substantial”); Murray v. Schriro, 746 F.3d
418, 458 (9th Cir. 2014) (concluding that Murray’s
ineffective-assistance-of-trial-counsel claim lacked sufficient
merit to warrant a Martinez remand).
Moreover, Detrich is distinguishable. In Detrich, the
“central question” was “whether any of Detrich’s newly
presented trial-counsel IAC claims prejudiced him at
sentencing.” 740 F.3d at 1249 (emphasis in original).
Because Detrich’s jury was split on whether Detrich was

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guilty of first-degree murder or felony murder, the prejudice
inquiry hinged on whether, if evidence that Detrich was the
actual killer was weaker, Detrich would nonetheless have
been sentenced to death. Id. This was a close question—“if
the trial evidence were close, then it would not take too much
new exculpatory evidence to call into question the trial
judge’s sentencing decision.” Id. Here, Woods’s habeas
claims are directed only to his conviction, not his sentence.
(Woods did not present any mitigating evidence; instead, he
invited the jury to impose the death sentence.) Thus, the
relevant prejudice inquiry is not whether Woods’s new claims
may have affected the sentence imposed, but whether the new
claims cast doubt on Woods’s guilt. They do not.
The majority also notes that “evaluating the substantiality
of the new IAC claims requires consideration of the State’s
DNA evidence and the reliability and propriety of the
inferences the State’s expert drew from it, as well as the
likelihood that the DNA evidence was contaminated.”
Opinion at 51. But the majority focuses on counsel’s
deficient performance and turns a blind eye to the fact that,
even if Woods establishes counsel’s ineffectiveness, he must
still show prejudice under Strickland. See Strickland, 466
U.S. at 687; Lopez, 678 F.3d at 1139. Even if Woods
convinces us that his trial counsel was glaringly ineffective,
he cannot possibly show that any reasonable juror would have
found him not guilty.
IV
In light of the overwhelming evidence against him, no
court can grant Woods the relief he seeks. The majority
ignores this foregone conclusion, favoring endless litigation
instead. The only purpose this remand will serve is to delay

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for years the seventeen-year-old judgment properly obtained
against a murderer who asked the jury to impose the death
sentence upon him for what he had done. I respectfully
dissent from Sections X.F.1, X.G, and footnote 18 of the
majority opinion. I concur in the remaining sections
upholding the denial of Woods’s other claims for habeas
relief.