Graham S Henry v. Charles Ryan

Filing

FILED OPINION (RAYMOND C. FISHER, RICHARD C. TALLMAN and CONSUELO M. CALLAHAN) We grant Henry s motion to expand to the certificate of appealability to cover his causal nexus claim and deny Henry s motion to expand the certificate of appealability to cover his juror misconduct claim. We affirm the district court s denial of habeas relief. AFFIRMED. Judge: RCF Authoring, FILED AND ENTERED JUDGMENT. [8672982]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

GRAHAM S. HENRY ,
Petitioner-Appellant,

No. 09-99007

v.

D.C. No.
2:02-CV-00656SRB

CHARLES L. RYAN ,
Respondent-Appellee.

OPINION

Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued and Submitted
October 18, 2012—San Francisco, California
Filed June 19, 2013
Before: Raymond C. Fisher, Richard C. Tallman,
and Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Fisher

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SUMMARY*

Habeas Corpus/Death Penalty
The panel affirmed the district court’s denial of a
28 U.S.C. § 2254 habeas corpus petition challenging a
conviction and capital sentence for murder, kidnapping,
robbery, and theft.
The panel first exercised its discretion to deny petitioner’s
Brady claim on the merits, despite a procedural default issue,
then held that notes the prosecution withheld were not
material to the guilty verdict. See Brady v. Maryland, 373
U.S. 83 (1963).
The panel also held that petitioner was not diligent in
securing the facts supporting his claim that photographic
evidence produced by the state before trial was altered, and
that some photos had been omitted and not produced during
discovery. The panel further held that the state’s suppression
of evidence was not the cause of petitioner’s failure to
comply with state procedural rules so as to excuse the
procedural default of this claim.
The panel denied petitioner’s Napue claim on the merits,
despite a procedural default issue, because petitioner had not
established that a detective knowingly provided false
testimony that the prosecution knew the testimony would be
inaccurate. See Napue v. Illinois, 360 U.S. 264 (1959).

*

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 next denied a certificate of appealability as to
petitioner’s claim of juror misconduct when the jurors
allegedly considered extrinsic evidence (two jurors performed
an experiment to test one of petitioner’s contentions) because
petitioner could not show that the alleged misconduct had a
substantial and injurious effect on the verdict.
The panel granted a motion to expand the certificate of
appealability, then affirmed the district court’s denial of relief
as to petitioner’s claim that the state courts applied an
unconstitutional causal nexus test when considering
mitigating evidence of petitioner’s history of alcohol abuse,
for lack of a substantial and injurious effect on the sentence.
The panel affirmed the denial of petitioner’s claims of
ineffective assistance of counsel for failing to present
mitigating evidence of petitioner’s childhood sexual abuse
and mental illness, because the state court reasonably
concluded that petitioner failed to show prejudice.

COUNSEL
Jon M. Sands, Federal Public Defender, Robin C. Konrad
(argued) and Amy E. B. Kapp, Assistant Federal Public
Defenders, Phoenix, Arizona, for Petitioner-Appellant.
Thomas C. Horne, Attorney General, Kent Cattani, Chief
Counsel, Criminal Appeals/Capital Litigation Section, and
Jonathan Bass (argued), Assistant Attorney General, Criminal
Appeals/Capital Litigation Section, Tucson, Arizona, for
Respondents-Appellees.

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OPINION

FISHER, Circuit Judge:
Graham Saunders Henry was convicted by a jury of firstdegree murder, kidnapping, robbery and theft. The Arizona
trial court imposed a sentence of death in 1988 and on
resentencing in 1995. After pursuing a direct appeal and state
postconviction relief (PCR), Henry filed a habeas petition in
federal district court. The district court denied the petition,
and Henry appeals.
Henry raises four claims on appeal: (1) that the state’s use
of perjured testimony and its suppression of material
evidence violated his constitutional rights under Brady v.
Maryland, 373 U.S. 83 (1963), and Napue v. Illinois,
360 U.S. 264 (1959); (2) that he was denied a fair trial
because jurors engaged in misconduct by conducting an outof-court experiment; (3) that the state court employed an
unconstitutional causal nexus test when considering
mitigating evidence offered at sentencing; and (4) that his
resentencing counsel was constitutionally ineffective.1 We
hold that Henry’s claims are either procedurally defaulted or
without merit and therefore affirm the district court’s denial
of habeas relief.
BACKGROUND
Henry and his acquaintance, Vernon Foote, embarked on
a road trip from California to Arizona and consumed large

1

The district court certified the first and third claims pursuant to Fed. R.
App. P. 22(b) and 28 U.S.C. § 2253(c). Henry seeks certificates of
appealability on the second and fourth claims.

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quantities of alcohol along the way. Their vehicle broke
down outside Las Vegas, and they were towed to the
Sportsman Lounge in Henderson, Nevada, where they
continued to consume alcohol.
Henry testified that at the Sportsman Lounge, Foote
informed him that an older man – Roy Estes – agreed to
transport them to Arizona in Estes’ truck in exchange for $50.
When Estes, Henry and Foote left Henderson in Estes’ truck,
Henry contends he was too tired to drive, so he “took a big
chug-a-lug of whiskey,” crawled in the camper of Estes’ truck
and fell fast asleep while Foote drove the vehicle. Henry
woke up about two hours later when Foote made a hard turn
on a dirt road and, from the truck’s camper, Henry heard
Foote and Estes arguing in the truck’s cab. From the truck’s
camper, Henry saw Foote hit Estes, stop the truck, drag Estes
out of the truck over a berm to a bank near bushes and start
punching Estes. Henry crawled out of the camper and saw
Foote pull a knife out of Estes. Henry further testified that he
ran up to the bank to help Estes and dragged him away from
Foote and towards the shade, where Estes died.
The state, however, offered a different narrative at trial.
The state presented evidence that Henry drove the vehicle to
the crime scene. The state also presented evidence that Henry
and Foote together dragged Estes up the berm to a bush,
where Estes was stabbed before being dragged by Henry to a
larger bush, where Estes’ body was hidden from the roadway.
See State v. Henry, 176 Ariz. 569, 574–75 (Ariz. 1993)
(recounting Henry’s and the state’s conflicting accounts of
the events).
Henry testified that after he realized Estes was dead, he
started shouting at Foote and got in the truck to leave. Foote

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also jumped in the truck, and they pulled away from the
scene. Shortly thereafter, Henry was pulled over for driving
down the wrong side of a divided highway. Foote and Henry
quickly made an agreement that if Foote did not tell the
police Henry’s real name, Henry would not to tell the police
that Foote had killed Estes.
Henry gave the police his fishing license with the name
“Harold S. Williams” and was arrested for driving while
intoxicated, blowing a .182 on a Breathalyzer.2 A few days
later, while Henry was still detained for drunk driving, a
detective addressed Henry by his real name. Henry then told
the detective that Foote had killed Estes and agreed to lead
officers to the crime scene.
Henry and Foote were tried separately. The jury
convicted Henry of first-degree murder, kidnapping, robbery
and theft. Henry was sentenced to death for the murder.
Following a direct appeal and three PCR petitions in state
court, Henry filed this federal habeas petition. The district
court concluded that Henry was not entitled to evidentiary
development or habeas relief.
STANDARD OF REVIEW
We review the district court’s denial of Henry’s habeas
petition de novo and its findings of fact for clear error. See
Carrera v. Ayers, 699 F.3d 1104, 1106 (9th Cir. 2012) (en
banc). We review the denial of a request for an evidentiary
hearing for an abuse of discretion. See Wood v. Ryan,
693 F.3d 1104, 1112 (9th Cir. 2012). Dismissals based on
2

Henry testified that he began using this alias to avoid being linked to
an outstanding arrest warrant in his name.

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procedural default are reviewed de novo. See Robinson v.
Schriro, 595 F.3d 1086, 1099 (9th Cir. 2010).
Because Henry filed his federal habeas petition after April
24, 1996, he must not only prove a violation of his
constitutional rights but also satisfy the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA) with respect
to any claim adjudicated on the merits in state court. See
Fenenbock v. Dir. of Corr. for Cal., 692 F.3d 910, 916 (9th
Cir. 2012). Under AEDPA, a court may not grant habeas
relief with respect to any such claim unless the state court’s
decision was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States,” or 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). We review the last reasoned state court decision
addressing the claim in question. See Crittenden v. Ayers,
624 F.3d 943, 950 (9th Cir. 2010).
DISCUSSION
I. BRADY/NAPUE CLAIMS
At trial, the prosecution relied on crime scene
photographs taken by the state and on footprint evidence
(from testimony interpreting the state’s photographs) to
support its theory that Henry was an active participant in
Estes’ murder rather than a mere bystander to the crime. The
state presented two witnesses who testified about the crime
scene photographs: Detective Patterson, who investigated the
crime scene and testified that he took all of the crime scene
photographs, and Bernell Lawrence, who was qualified as an

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expert tracker and testified about the footprints shown in the
photographs.
Disputing the prosecution’s evidence, Henry testified that
he was asleep in the truck camper and awoke only when he
heard Foote and Estes fighting. Henry said that Foote alone
dragged Estes over a sand berm to a bush and that he ran to
the bush to find that Foote had stabbed Estes, at which time
Henry dragged Estes away from Foote and into the shade. At
trial the defense relied on the crime scene photographs to
support Henry’s innocence, cautioning the jury to look at
“every picture” admitted into evidence and to “look very
carefully at the[] prints.”
In his federal habeas petition, Henry asserted three due
process violations under Brady v. Maryland, 373 U.S. 83
(1963), and Napue v. Illinois, 360 U.S. 264 (1959): (1) that
the state withheld notes created by his codefendant, Foote,
which included a drawing of the crime scene; (2) that the
state altered and suppressed photos of the crime scene; and
(3) that the state knowingly presented false testimony during
trial. The first two claims assert violations of Brady, which
“hold[s] that the suppression by the prosecution of evidence
favorable to an accused upon request violates due process
where the evidence is material either to guilt or to
punishment.” 373 U.S. at 87. The third claim asserts a
violation of Napue, which holds that a conviction violates a
defendant’s due process rights when it is obtained by the
state’s knowing presentation of false testimony. 360 U.S. at
269.
Henry did not present these due process claims to the state
court. The district court denied the first claim on the merits
and the second and third claims as procedurally barred and on

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the merits. The court issued a certificate of appealability on
these issues. We address each claim in turn.
A. Codefendant Foote’s Notes
Henry states that when he requested records from the
Mohave County Sheriff’s Office as part of his federal habeas
proceedings, he received notes Foote created, which include
a drawing of the crime scene, that the state withheld during
trial. Henry argues that the drawing corroborates his account
of the crime because in the drawing, Foote’s footprints appear
on either side of Estes’ tracks, while Henry’s footprints
extend from behind the vehicle to the bush where Estes was
stabbed. Henry contends that the state’s suppression of
Foote’s notes violated his due process rights under Brady.
1. Procedural Default
The parties disagree about whether the procedural default
rule bars this claim. We need not reach this issue, however,
because the merits of the claim have been fully briefed, and
the district court assumed that it was not barred and reached
the merits of the claim. We therefore exercise our discretion
to deny the claim on the merits as permitted by 28 U.S.C.
§ 2254(b)(2). See Runningeagle v. Ryan, 686 F.3d 758, 777
n.10 (9th Cir. 2012).
2. Merits
To prove a Brady violation, Henry must show (1) that the
evidence at issue is favorable to him because it is exculpatory
or impeaching; (2) that it was suppressed by the state, either
willfully or inadvertently; and (3) that it was material. See
Strickler v. Greene, 527 U.S. 263, 280–82 (1999). We

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assume without deciding, as did the district court, that Foote’s
notes are favorable and were suppressed and analyze only
whether any suppression was material.
To establish materiality, Henry must show that the state’s
“nondisclosure was so serious that there is a reasonable
probability that the suppressed evidence would have
produced a different verdict.” Id. at 281. Henry argues that
the suppressed evidence is material because its disclosure
would have allowed him to present evidence corroborating
his version of events and discrediting the state’s theory.
We are not convinced. First, to be material under Brady,
evidence must be admissible as evidence “or capable of being
used ‘to impeach a government witness.’” United States v.
Kohring, 637 F.3d 895, 903 (9th Cir. 2011) (quoting United
States v. Price, 566 F.3d 900, 911–12 (9th Cir. 2009)).
Foote’s notes, including markings on Foote’s drawing that
indicate the paths taken by him, Estes and Henry, appear to
be hearsay. See Ariz. R. Evid. 801(a), (c). Henry argues that
these notes would be admissible under the “statement against
interest” exception.3 However, Foote’s notes and drawing
reflect his efforts to show he was innocent of Estes’ murder
and to shift guilt to Henry. They cannot reasonably be
considered a statement made against Foote’s interest.

3

See Ariz. R. Evid. 804(b)(3) (providing a hearsay exception for “[a]
statement that . . . a reasonable person in the declarant’s position would
have made only if the person believed it to be true because, when made,
it was so contrary to the declarant’s proprietary or pecuniary interest or
had so great a tendency to invalidate the declarant’s claim against
someone else or to expose the declarant to civil or criminal liability”
(emphasis added)).

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Second, even if they were admissible at trial, the drawing
and notes taken together are substantially more incriminating
of Henry than exculpatory. Foote’s notes accuse Henry of
killing Estes and profess Foote’s own innocence. They also
state, contrary to Henry’s testimony at trial, that Henry was
in the truck cab rather than the camper during the drive to the
crime scene, and the drawing reflects this assertion as well.
Although the drawing slightly undermines the state’s theory
of how the murder occurred, it does not corroborate Henry’s.
Additionally, the drawing is practically indecipherable, and
its source – an individual who was also charged with the
murder of Estes – is not particularly trustworthy. Therefore,
this evidence has very little exculpatory value and does not
present a “reasonable probability” of altering the verdict. See
United States v. Diaz-Rodriguez, 478 F.2d 1005, 1008 (9th
Cir. 1973) (“A new trial is not automatically required
whenever the prosecution’s files subsequently reveal[]
evidence of possible utility to the defense but of unlikely
weight in altering the verdict.”).
Third, although Henry argues that “[t]he bulk of the
State’s case against Henry rested upon footprints,” the
footprint evidence was only one aspect of the state’s case;
significant other circumstantial evidence existed that
supported the jury’s verdict. The prosecution relied on
evidence showing that Henry left the scene of the crime and
failed to tell the police about the murder even after he was
asked about it. The state also relied on the testimony of
Estes’ landlord, who suggested that Estes was not taken from
his apartment willingly. It relied on evidence showing that
Foote was substantially more intoxicated than Henry, tending
to suggest that Foote would not have been driving, and
evidence showing that Henry, who claimed he had not driven
to the crime scene and had been asleep during the trip, was

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able to direct the police to its precise location. It also
introduced evidence showing that although Henry stated that
after Foote stabbed Estes, there was “blood all over,” blood
was found on Henry’s clothes but not on Foote’s.
Furthermore, the jury did not have to believe the state’s
theory of the crime scene to convict Henry. The state court
instructed the jury that it could convict Henry of first-degree
murder either under a premeditation theory or under a felonymurder or accomplice theory. Therefore, even if the jury
believed Henry’s story that he did not drag Estes up the berm
along with Foote, it could have convicted him under a felonymurder or accomplice theory.
In sum, Henry’s Brady claim regarding the state’s
suppression of Foote’s notes fails because Henry cannot
establish that the allegedly suppressed evidence was material
to the guilty verdict. The admissibility of the evidence is
questionable, the notes are more incriminating than
exculpatory and significant other evidence existed supporting
the jury’s guilty verdict. For these reasons, we affirm the
district court’s denial of this claim. We also affirm the
district court’s denial of an evidentiary hearing on this claim
because Henry has not established that the facts he alleges, if
proven, would entitle him to relief, nor has he pointed to
“additional evidence that would be presented if an evidentiary
hearing were held. In short, no abuse of discretion appears.”
Rhoades v. Henry, 638 F.3d 1027, 1052 (9th Cir. 2011).
B. Alteration and Omission of Crime Scene Photos
Henry states that in 1991, during PCR proceedings, his
investigator David Abbott noticed that certain negatives were
missing from the rolls of film that the state had produced

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upon his request. Nearly two decades later, during Henry’s
federal habeas proceedings, Henry retained a photograph
analysis expert, David Hill. Hill conducted a computerenhanced analysis of several photographic trial exhibits and
concluded that the photographic evidence produced by the
state before trial was altered and that some photographs had
been omitted and not produced to Henry during discovery.
Henry argues that the state’s alleged actions violated his due
process rights under Brady.
1. Procedural Default
The district court denied this claim as procedurally
defaulted and, in the alternative, on the merits. Arizona Rule
of Criminal Procedure 32.2(a) precludes post-conviction
relief on any claim that could have been raised on direct
appeal or in a prior PCR petition. Henry argues that
notwithstanding Rule 32.2(a), this claim would not be
procedurally barred in state court under the exceptions to
Rule 32.2(a) articulated in Rule 32.1(e) and (h), and thus the
procedural default rule does not apply.
Rule 32.1(e) permits a defendant to bring a PCR petition
if newly discovered facts exist that were diligently secured by
the defendant and that “probably would have changed the
verdict or sentence.” We agree with the district court that
Henry was not diligent in securing the facts upon which he
now relies. His claim is not based on new evidence provided
by the state but rather on new analysis of evidence that has
been available to him for more than 20 years. Henry has not
alleged that any facts were revealed during his habeas
proceedings that provided the impetus for analyzing these
photographs. Indeed, as he states in his opening brief,
“[s]ince his conviction, Henry has consistently maintained

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that . . . the State misrepresented and withheld crime scene
photographs.” He simply chose not to take any action to
develop this claim until more than 20 years after trial.
Therefore, no avenue for relief exists under Rule 32.1(e).
Rule 32.1(h) permits a defendant to bring a PCR petition
if he can demonstrate “by clear and convincing evidence that
the facts underlying the claim would be sufficient to establish
that no reasonable fact-finder would have found defendant
guilty of the underlying offense beyond a reasonable doubt.”
We agree with the district court that the evidence Henry has
presented does not meet this high threshold, particularly
given the ample evidence of his guilt that existed beyond the
footprint and photographic evidence. Therefore, no avenue
for relief exists under Rule 32.1(h).
In sum, because Henry’s claim would be procedurally
barred in state court under Rule 32.2(a), and he has not
identified any applicable exceptions to Rule 32.2(a), his claim
is procedurally defaulted.
2. Cause and Prejudice
“[F]ederal habeas review of [a procedurally defaulted
claim] is barred unless the prisoner can demonstrate cause for
the default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to
consider the claims will result in a fundamental miscarriage
of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Henry argues that he can “overcome any alleged default for
failing to present his claim in state court because he can show
cause and prejudice based on the merits of his claim itself.”
It is true that cause and prejudice may sometimes be
established on the merits of a Brady claim itself, with cause

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and prejudice corresponding respectively to the suppression
and materiality elements of a Brady claim. See Strickler,
527 U.S. at 282 (“In this case, cause and prejudice parallel
two of the three components of the alleged Brady violation
itself.” (emphasis added)). It is not the case, however, that a
defendant is excused from failing to raise a Brady claim in
state court every time he can prove that material was
suppressed by the state and may materially affect the verdict.
Rather, the state’s suppression establishes cause only when it
is the reason for his failure to develop facts in state court
proceedings. See Banks v. Dretke, 540 U.S. 668, 691 (2004).
Here, the state’s alleged suppression of omitted
photographs was not the reason for Henry’s failure to develop
facts in state court. In 1991, Henry’s investigator testified
that he noticed that photographs were missing from the rolls
produced by the state. In 1995, Henry himself complained
that the prosecution altered and failed to produce crime scene
photographs. Henry’s opening brief acknowledges that he
had been making these allegations “for years.” It is true that
Henry first had the photos analyzed in 2008, but the
government’s suppression did not cause that delay; Henry
was clearly aware of the state’s alleged Brady violation long
before federal habeas proceedings commenced.
Contrary to Henry’s contentions, Banks, 540 U.S. 668,
and Strickler, 527 U.S. 263, do not hold that suppression
establishes cause for a procedural default even if the
defendant alleged and had evidentiary support for a Brady
claim long before federal proceedings began. The Supreme
Court has long stated that “the existence of cause for a
procedural default must ordinarily turn on whether the
prisoner can show that some objective factor external to the
defense impeded counsel’s efforts to comply with the State’s

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procedural rule.” Murray v. Carrier, 477 U.S. 478, 488
(1986). In Strickler, the state’s suppression established cause
for the defendant’s procedural default because the defendant
neither knew about, nor had any evidentiary support to
advance, a Brady claim before initiating federal habeas
proceedings. See Strickler, 527 U.S. at 283, 286, 287.
Likewise in Banks, the suppressed evidence did not come to
light until after the petitioner initiated federal habeas
proceedings. See Banks, 540 U.S. at 675. In both of these
cases, the state’s suppression was the reason for the
defendants’ failure to raise and develop their claims in state
court, as it was not until federal proceedings that the
defendants had a basis for believing that a Brady violation
had occurred or had any evidentiary basis for such a claim.
Here, by contrast, Henry not only suspected but alleged
and had evidentiary support for his claim more than a decade
before commencing federal habeas proceedings. Banks and
Strickler therefore do not mandate that the state’s suppression
establishes cause for Henry’s failure to raise a Brady claim in
state court. Henry’s proposed rule, under which suppression
always establishes cause, would permit a defendant who
knows of wrongdoing by the state to wait to bring such a
claim until he is in front of the judicial forum that he feels
would be most sympathetic to his claim. This would
undermine the vital purposes served by the procedural default
rule, such as finality, accuracy and efficiency of judicial
decisions, and it would allow criminal defendants to
circumvent the most appropriate forum for adjudicating such
claims – state court. See Murray, 477 U.S. at 490–91.
Henry has not established that the state’s suppression of
evidence is the reason for his failure to comply with state
procedural rules. He therefore has not established cause to

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excuse his procedural default, and the procedural default rule
bars federal habeas review of this claim. For this reason, we
affirm the district court’s denial of this claim. We also affirm
the district court’s denial of an evidentiary hearing because
the claim does not rely on “a factual predicate that could not
have been previously discovered through the exercise of due
diligence.” 28 U.S.C. § 2254(e)(2)(A)(ii).
C. Knowing Presentation of False Testimony
At trial, Detective Patterson testified that he left several
footprints when he walked up the berm while investigating
the crime scene. Detective Patterson identified these
footprints in the photographic exhibits offered at trial. The
prosecution argued that, since Detective Patterson left the
footprints that led up the berm, then Henry must have left the
set of footprints that paralleled those left by Foote and Estes.
As a result, Detective Patterson’s testimony supported the
state’s theory that Henry and Foote together dragged Estes
from the truck to the sand berm where they killed him.
Disputing Detective Patterson’s testimony, Henry testified
that he made the footprints that led up the berm when he
jumped out of the back of Estes’ truck. During federal habeas
proceedings, Henry retained Joel Hardin to review Hill’s
enhanced crime scene photos and the related trial testimony.
Hardin concluded:
The footprint evidence contained in the
photograph exhibits supports and generally
substantiates what Henry testified to at his
trial, that Henry, not Patterson, made the
footprints in question.

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The footprint in the roadway that Patterson
testified was made by him was, in fact, made
by Henry. Henry also made the double berm
prints visible in the photographs as he ran
from the road, jumped into the berm, jumped
again, and entered the desert area. The
footprints in the berm are not Patterson’s
footprints, as he entered then left the desert
area, as he testified.

Because Hill’s computer-enhanced photographs and Hardin’s
report suggest that Henry made the footprints leading from
the back of the truck, Henry argues that Detective Patterson
must have knowingly presented false testimony in violation
of Napue v. Illinois, 360 U.S. 264 (1959).
1. Procedural Default
As with Henry’s Brady claim asserting the state’s
suppression of crime scene photographs, this claim relies on
new analysis of evidence that has been in Henry’s possession
for decades. Also as with his Brady claim, it merely provides
proof of accusations Henry has made since trial. Thus, we
are skeptical that this claim is not barred by the procedural
default rule. Nevertheless, the parties focused on the merits
of Henry’s Napue claim, as did the district court’s order
denying habeas relief. We therefore exercise our discretion
to deny the claim on the merits as permitted by 28 U.S.C.
§ 2254(b)(2). See Runningeagle, 686 F.3d at 777 n.10.
2. Merits
A defendant’s due process rights are violated when a
conviction is obtained through the knowing use of false

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testimony. See Briscoe v. LaHue, 460 U.S. 325, 326 n.1
(1983). “A claim under Napue will succeed when ‘(1) the
testimony (or evidence) was actually false, (2) the
prosecution knew or should have known that the testimony
was actually false, and (3) the false testimony was material.’”
Jackson v. Brown, 513 F.3d 1057, 1071–72 (9th Cir. 2008)
(quoting Hayes v. Brown, 399 F.3d 972, 984 (9th Cir. 2005)
(en banc)). The district court rejected Henry’s Napue claim
for two reasons. First, it concluded that Henry provided no
evidence that Detective Patterson knew his testimony was
false, as opposed to simply incorrect or in dispute. Second,
it concluded that even if Detective Patterson’s testimony was
false, Henry failed to demonstrate that the prosecution knew
or should have known it was false. Henry argues that the
district court erred in both of these conclusions. Although he
does not argue that the prosecution knew that Detective
Patterson’s testimony was false, he argues that Detective
Patterson knew his testimony was false and that Detective
Patterson’s knowledge must be imputed to the prosecution.
We need not reach the question of whether Detective
Patterson’s knowledge must be imputed to the prosecution,
because we agree with the district court that Henry has not
established that Patterson knowingly provided false testimony
during trial. Although Henry has provided evidence rebutting
Patterson’s version of the facts, he has provided no evidence
that Patterson knew his testimony was inaccurate at the time
he presented it, rather than Patterson’s recollection merely
being mistaken, inaccurate or rebuttable. Henry’s conclusory
assertion that, because Patterson must have known where he
stepped while investigating the crime scene, any testimony
inconsistent with the truth must be not only inaccurate but
also perjured does not constitute evidence sufficient to make
out a Napue claim.

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We therefore affirm the district court’s denial of this
claim. We also affirm the district court’s denial of an
evidentiary hearing because the facts underlying this claim
could have been previously discovered through diligence on
Henry’s part. See 28 U.S.C. § 2254(e)(2). Decades before
his federal habeas proceedings, Henry alleged that Detective
Patterson “lied” during his trial testimony. The facts
underlying this claim were developed not by analyzing
evidence that was produced in federal habeas proceedings,
but rather by David Hill and Joel Hardin’s analysis of
evidence that had been in Henry’s possession for years.
Thus, the factual predicate for this claim could previously
have been discovered through diligence.
II. JUROR MISCONDUCT
Henry argues that an out-of-court experiment conducted
by two jurors violated his Sixth Amendment rights to an
impartial jury and to a verdict based on evidence that is
subject to confrontation and assistance of counsel. See
Turner v. Louisiana, 379 U.S. 466, 471–73 (1965) (holding
that a jury’s consideration of extraneous evidence violates a
criminal defendant’s right to trial by jury).
A. Background
Henry first became aware of potential juror misconduct
issues in 2000, when Henry’s investigator interviewed several
men and women who had served on Henry’s jury more than
a decade earlier. A juror told the investigator that two other
jurors had performed an experiment to test Henry’s
contention that he could hear Foote and Estes arguing from
the camper of Estes’ truck. After driving a similar vehicle
down a gravel road, these jurors concluded that Henry could

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not have heard an argument occurring in the truck’s cab.
They shared their results with other members of the jury.
Henry asserted a claim of juror misconduct in his petition
for state postconviction relief. The state trial court – Judge
Steven F. Conn, the same judge who had presided over the
trial – rejected Henry’s claim. Among other things, the trial
court questioned whether the jurors’ experiment was material
to the outcome of the trial: the evidence was relevant only to
Henry’s credibility, and even without the evidence Henry was
already “one of the most inherently incredible witnesses [the
court] has ever seen testify in a courtroom.” The Arizona
Supreme Court denied review without comment. The federal
district court also rejected this claim, declined to grant an
evidentiary hearing and declined to issue a certificate of
appealability.
B. Analysis
We also deny a certificate of appealability. To obtain a
certificate of appealability, Henry must demonstrate that the
issue is debatable among jurists of reason, that a court could
resolve the issues differently or that the questions raised are
adequate to deserve encouragement to proceed further. See
28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 484
(2000); Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir.
2000). He has not made this showing. Even assuming Henry
could satisfy § 2254(d) – a question we need not and do not
reach – Henry plainly cannot show that the alleged
misconduct had a “substantial and injurious” effect on the
verdict. See Sassounian v. Roe, 230 F.3d 1097, 1108 (9th Cir.
2000) (applying the Brecht v. Abrahamson, 507 U.S. 619
(1993), “substantial and injurious” standard on habeas review

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of a juror misconduct claim).4 The district court therefore
properly declined to certify this claim.
Supreme Court and Ninth Circuit cases finding prejudicial
juror misconduct have involved far different circumstances.
The Supreme Court, for instance, has found juror misconduct
to warrant reversal in cases involving extended external
influences on jurors or confirmed juror bias – neither of
which is present here. See Tong Xiong v. Felker, 681 F.3d
1067, 1076–77 (9th Cir. 2012). Similarly, the circumstances
in this case are readily distinguishable from cases in which
we have concluded that juror misconduct warranted a new
trial.
First, the extraneous information the jury considered was
not inherently inflammatory, nor had it already been excluded
from trial as unduly prejudicial. Cf. Mancuso v. Olivarez,
292 F.3d 939, 953 (9th Cir. 2002) (“Juror misconduct cases
in which habeas relief has been granted often involve the
jury’s receipt of information excluded from trial as unduly
prejudicial such as evidence of the facts surrounding a
defendant’s prior conviction, bad reputation, or propensity to
violate the law.”); Sassounian, 230 F.3d at 1104, 1112
(reversing a special circumstance jury verdict where it was
reached after the jury improperly considered evidence that
had not been presented at trial because it had been ruled
inadmissible); Rodriguez v Marshall, 125 F.3d 739, 744 (9th
4

As noted, a court may not grant habeas relief with respect to any claim
resolved on the merits in state court unless the state court’s decision was
“contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States” or 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).

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Cir. 1997) (“We have granted a new trial where the jury
receives extraneous information that is ordinarily excluded
from trial as inflammatory or unduly prejudicial.”), overruled
on other grounds by Payton v. Woodford, 299 F.3d 815,
828–29 & n.11 (9th Cir. 2002) (en banc).
Second, extraneous information is less likely to be
prejudicial when, as in this case, it “merely confirmed what
any reasonable juror already knew.” United States v.
Bagnariol, 665 F.2d 877, 888 (9th Cir. 1981); see also
Rodriguez, 125 F.3d at 745 (discounting claim of prejudice
when extrinsic evidence considered was within the common
knowledge of most reasonable jurors). Here, the state trial
court reasonably found that the extraneous information about
whether a person lying in the camper of a truck could hear an
argument occurring in the cab fell within the common
knowledge of most jurors.
Third, Henry’s credibility was already thoroughly
impeached at trial, making the extraneous information
cumulative. See Tong Xiong, 681 F.3d at 1078 (upholding as
reasonable the state court’s factual determination that the
petitioner was not prejudiced by the jury’s consideration of
extrinsic evidence because a witness’s credibility was so
impeached at trial that extrinsic evidence further impeaching
his credibility was merely cumulative).5
5

Henry argues, under § 2254(d)(2), that the state court’s adverse
credibility finding was unreasonable. To the extent his argument is also
applicable to our harmless error analysis, we reject Henry’s contention.
See 28 U.S.C. § 2254(e)(1) (providing that “a determination of a factual
issue made by a State court shall be presumed to be correct”); Ortiz v.
Stewart, 149 F.3d 923, 936 (9th Cir. 1998) (concluding that credibility
determinations are factual issues presumed to be correct under AEDPA).
In both the habeas and direct review contexts, federal courts give

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Fourth, as noted earlier, the evidence supporting Henry’s
guilt was substantial, and the jury could have convicted him
under a felony-murder or accomplice theory even if it
believed Henry’s story that he was in the camper of the truck
and did not join Foote in dragging Estes up the berm. See
United States v. Montes, 628 F.3d 1183, 1186, 1190 (9th Cir.
2011) (rejecting a juror misconduct claim where “the
prosecution presented overwhelming evidence” of the
defendants’ guilt).
In sum, the jurors’ alleged consideration of extrinsic
evidence could not have had a “substantial and injurious”
impact on the verdict. We therefore decline to issue a
certificate of appealability.

deference to trial courts’ witness credibility findings. See, e.g., Tong
Xiong, 681 F.3d at 1078 (accepting the state court’s observation that a
witness’s “credibility regarding his inability to recall prior testimony had
already been impeached at trial, to the point where it had been deemed
‘comical’”); United States v. Hanley, 190 F.3d 1017, 1031 (9th Cir. 1999)
(“[W ]e must accord special deference to the trial judge’s impression of the
impact of the alleged misconduct.” (quotation mark omitted)), superseded
by regulation on other grounds; Bagnariol, 665 F.2d at 885 (“The trial
judge is uniquely qualified to appraise the probable effect of information
on the jury . . . . He or she observes the jurors throughout the trial, is
aware of the defenses of asserted, and has heard the evidence.”).
Furthermore, even considering only the facts Henry admitted at trial,
the jury had good reason to question his credibility. He left the scene of
a murder without reporting it to the police, provided false identification to
the police and agreed not to tell the police about a murder and then
reneged on that agreement once it was advantageous for him to do so.

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C. Evidentiary Hearing
Even assuming Henry could satisfy § 2254(d), the district
court did not abuse its discretion in denying Henry’s request
for an evidentiary hearing. “An evidentiary hearing is not
mandated every time there is an allegation of jury misconduct
or bias.” United States v. Angulo, 4 F.3d 843, 847 (9th Cir.
1993). Although a hearing might be useful in determining
whether a defendant’s allegations that jurors engaged in
misconduct are true, courts may not inquire about the
subjective impact of such misconduct on the jury. See Fed.
R. Evid. 606(b); Fields v. Brown, 503 F.3d 755, 778 (9th Cir.
2007) (“Juror testimony about consideration of extrinsic
evidence may be considered by a reviewing court, but juror
testimony about the subjective effect of evidence on the
particular juror or about the deliberative process may not.”).6
Thus, we have underscored the limited utility of an
evidentiary hearing in determining whether consideration of
extrinsic evidence was prejudicial. See, e.g., Montes,
628 F.3d at 1189 (“The only question left to be answered was
how [the extrinsic evidence] could have influenced the
verdict, and that is a question that cannot be answered
through juror testimony.”).
Henry does not point to any additional evidence that
could be properly pursued at an evidentiary hearing to show
that the alleged misconduct had a substantial and injurious
influence on the verdict. The district court therefore did not

6
Here, an evidentiary hearing to determine whether juror misconduct
occurred is unnecessary. For purposes of analyzing this claim, we
assume, as did the district court, that the jury considered extrinsic
evidence as Henry alleges. Thus, the only disputed issue is the prejudice
caused by the alleged misconduct.

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abuse its discretion. See Rhoades, 638 F.3d at 1037
(“Rhoades points to no additional evidence that would be
presented if an evidentiary hearing were held. In short, no
abuse of discretion appears.”); Gandarela v. Johnson,
286 F.3d 1080, 1087–88 (9th Cir. 2002).
III. CAUSAL NEXUS CLAIM
Henry argues that the Arizona courts applied an
unconstitutional causal nexus test when considering
mitigating evidence of his history of alcohol abuse, in
violation of his Eighth and Fourteenth Amendment rights to
individualized sentencing. He contends that the state courts
improperly refused to consider this evidence because of the
absence of a causal connection between the evidence and the
crime, violating his constitutional rights under Lockett v.
Ohio, 438 U.S. 586, 604–06 (1978), Eddings v. Oklahoma,
455 U.S. 104, 113–15 (1982), Tennard v. Dretke, 542 U.S.
274, 283–87 (2004), and related decisions. These cases hold
that requiring a defendant to prove a nexus between
mitigating evidence and the crime is “a test we never
countenanced and now have unequivocally rejected.” Smith
v. Texas, 543 U.S. 37, 45 (2004) (per curiam). The district
court denied Henry’s causal nexus claim.7
A. Background
Henry presented evidence of his history of substance
abuse at sentencing and resentencing. He testified that he

7

The district court also denied a certificate of appealability. W e grant
Henry’s motion to expand the certificate of appealability to encompass
this claim because the claim “is one upon which reasonable jurists could
disagree.” Williams v. Ryan, 623 F.3d 1258, 1270 (9th Cir. 2010).

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was a heavy drinker for decades, consuming between a fifth
and a half-gallon of bourbon a day. His criminal records
showed two drunk driving arrests in 1976. His probation
officer reported in 1982 that his “future prognosis [wa]s poor
considering his criminal activities related to excessive use of
alcohol.” On the day Estes was murdered, Henry had a blood
alcohol level of 0.182. He testified that in 1985 he tried both
Alcoholics Anonymous and medication to treat his chronic
alcoholism.
Henry also presented a report by Dr. Walter Fox, M.D.8
Dr. Fox diagnosed Henry with “alcohol dependence,”
concluded that a longitudinal view of Henry’s life showed “a
pattern of continuous heavy use of alcohol throughout the
adult years” and reported that Henry’s “violent behavior and
criminal activities” appeared to be so entwined with his
“excessive use of alcohol” that “one should consider them as
existing together to both predict and explain [his] behavior.”
These “violent behavior[s] and criminal activities” included
a robbery in 1969, a motorcycle accident in 1975,
commission of involuntary manslaughter in 1977, a shooting
in 1985 and the murder of Estes in 1986.
Both the state trial court and the Arizona Supreme Court
treated Henry’s intoxication at the time of the crime as a
statutory mitigating factor under Arizona Revised Statutes

8

The trial court appointed D r. Fox at defense counsel’s request to
conduct a presentence mental health examination of Henry under Rule
26.5 of the Arizona Rules of Criminal Procedure, which provides: “At
any time before sentence is pronounced, the court may order the defendant
to undergo mental health examination or diagnostic evaluation. Reports
under this section shall be due at the same time as the pre-sentence report
unless the court orders otherwise.” Ariz. R. Crim. P. 26.5.

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§ 13-703(G)(1) (1997). In addition, the Arizona Supreme
Court addressed Henry’s history of alcohol abuse as follows:
Defendant also claims that the court
improperly failed to find his intoxication and
history of alcohol and drug abuse as
non-statutory mitigating factors. With respect
to the former, the court found that defendant’s
intoxication at the time of the homicide
impaired his capacity to appreciate the
wrongfulness of his conduct or to conform his
conduct to the requirements of the law under
A.R.S. § 13-703(G)(1). It would have been
redundant to count this evidence again as
non-statutory mitigation. We find insufficient
proof of historical substance abuse, but in any
event, this would provide no additional
mitigation without evidence of a causal
connection to the crime. See State v.
Medrano, 185 Ariz. 192, 195-96, 914 P.2d
225, 228-29 (1996); Bible, 175 Ariz. at 609,
858 P.2d at 1212.
State v. Henry, 944 P.2d 57, 67–68 (Ariz. 1997). Henry
moved for reconsideration, arguing that the court’s
imposition of a causal nexus requirement was
unconstitutional under Lockett and Eddings, but the court
summarily denied the motion.
The federal district court also rejected Henry’s causal
nexus claim. The district court concluded that there was no
constitutional violation because the Arizona Supreme Court
had found Henry’s history of alcohol abuse unproven. It
ruled that the Arizona Supreme Court’s “reference to a causal

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connection represented at most an alternative basis for
discounting chronic alcohol abuse as a mitigating
circumstance.”
B. Analysis
To obtain habeas relief on this claim, Henry must: (1)
satisfy AEDPA, 28 U.S.C. § 2254(d); (2) prove that the
Arizona courts committed causal nexus error; and (3) show
that the error had a substantial and injurious effect or
influence in determining the sentence. See Stokley v. Ryan,
705 F.3d 401, 404–05 (9th Cir. 2012) (order) (citing
Hitchcock v. Dugger, 481 U.S. 393, 3997 (1987) (referencing
harmless error in connection with the exclusion of
nonstatutory mitigating evidence)). Even assuming that
Henry could satisfy the first two requirements, we affirm the
denial of habeas relief because Henry has not shown that any
error would have “had substantial and injurious effect or
influence in determining” the sentence. Brecht, 507 U.S. at
623.9
At the time of the Arizona Supreme Court’s decision
affirming Henry’s death sentence, Arizona law required a
sentencing court to “impose a sentence of death if the court

9

W e also assume without deciding that Henry preserved his argument
that the Arizona Supreme Court’s finding of insufficient proof of historical
substance abuse was an unreasonable determination of the facts under
28 U.S.C. § 2254(d)(2). Compare AlohaCare v. Hawaii, Dep’t of Human
Servs., 572 F.3d 740, 744–45 (9th Cir. 2009) (holding that arguments
raised for the first time on appeal are waived, absent exceptional
circumstances), with United States v. Pallares-Galan, 359 F.3d 1088,
1095 (9th Cir. 2004) (holding that “it is claims that are deemed waived or
forfeited, not arguments” (citing Yee v. Escondido, 503 U.S. 519, 534
(1992))).

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finds one or more of the aggravating circumstances
enumerated in subsection F of this section and that there are
no mitigating circumstances sufficiently substantial to call for
leniency.” Ariz. Rev. Stat. § 13-703(E) (1997). Arizona law
also provided that “[o]n review, the supreme court shall
independently review the trial court’s findings of aggravation
and mitigation and the propriety of the death sentence.” Id.
§ 13-703.01.
Here, the state courts found two aggravating factors: a
prior felony involving the use or threat of violence under
Arizona Revised Statutes § 13-703(F)(2), and an offense
committed in expectation of pecuniary gain under
§ 13-703(F)(5). The first factor was based on Henry’s 1970
conviction for the armed robbery of a Kentucky Fried
Chicken at which he had been employed. The second factor
was based on a finding that Henry and Foote murdered Estes
to steal his truck.10 The state courts found one mitigating
factor – that Henry’s capacity to appreciate the wrongfulness
of his conduct or to conform his conduct to the requirements
of law was significantly impaired, but not so impaired as to
constitute a defense to prosecution, because of his
consumption of alcohol on the day of the murder. See id.

10

Henry minimizes the aggravating factors, arguing that they were not
overwhelming because the sentencing court found that he was not the
actual killer and did not intend or attempt to kill the victim. The Arizona
Supreme Court, however, held that Henry was “an active, intentional
participant in the killing.” State v. Henry, 944 P.2d at 67; see also State
v. Henry, 863 P.2d 861, 880 (Ariz. 1993) (holding that “the evidence that
two people dragged the victim up the berm, that Henry’s clothes were
spattered with blood, that he drove off immediately after the stabbing, and
that he failed to immediately tell officers about the victim, supports not
only a finding of reckless indifference to human life, but also a conclusion
that Henry was an active, intentional participant in the killing”).

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§ 13-703(G)(1). The trial court and the supreme court agreed
that the mitigation was not sufficiently substantial to call for
leniency. Accordingly, they sentenced Henry to death.
We conclude that the additional mitigating evidence of
Henry’s history of alcohol abuse would not have had a
substantial and injurious effect on the sentence for several
reasons. First, in imposing the death penalty, the Arizona
courts already considered Henry’s intoxication at the time of
the murder as a mitigating factor. Given the similar nature of
the mitigation, the additional evidence of Henry’s historical
alcoholism would have had minimal mitigating value. If the
state courts concluded that intoxication with a causal
connection to the crime was not sufficient to call for leniency,
it is highly doubtful that they would have considered
alcoholism without a causal connection to be sufficient.
Second, although evidence of a defendant’s background
or character is clearly relevant and probative even in the
absence of a causal connection to the crime, see Lambright v.
Schriro, 490 F.3d 1103, 1115 (9th Cir. 2007) (per curiam),
state courts are free to consider the absence of a causal
connection when assessing the quality and strength of such
evidence, see Schad v. Ryan, 671 F.3d 708, 723 (9th Cir.
2011) (per curiam). Our review of the record in this
particular case shows that the Arizona courts would not have
given this evidence significant weight under any
circumstances.
Third, this case is readily distinguishable from those in
which we have treated evidence of a history of substance
abuse as significantly mitigating. We have found a history of
substance abuse to be substantially mitigating when it has
been combined with other mitigating evidence. See Correll

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v. Ryan, 539 F.3d 938, 944, 952–54 (9th Cir. 2008) (holding
that the defendant’s “mental health disorders, psychiatric
commitments, drug abuse history, brain injury, and
family dysfunction” “amounted to classic mitigating
circumstances”); Earp v. Ornoski, 431 F.3d 1158, 1179 (9th
Cir. 2005) (“If proven to be true during future evidentiary
hearings, this alleged history of substance abuse, emotional
problems, and organic brain damage is the very sort of
mitigating evidence that ‘might well have influenced the
jury’s appraisal of [Earp’s] moral culpability.’” (alteration in
original) (quoting Williams v. Taylor, 529 U.S. 362, 398
(2000))); Ainsworth v. Woodford, 268 F.3d 868, 875, 878 (9th
Cir. 2001) (holding that mitigating evidence of the
defendant’s “troubled childhood, his history of substance
abuse, and his mental and emotional problems” “would have
been extremely important to the jury in its effort to decide
whether to impose the death penalty or a sentence of life in
prison”). Henry’s evidence, by contrast, stands alone, was
similar to evidence already considered by the sentencing
courts and was of limited probative value.11
In sum, even assuming the state courts committed causal
nexus error, the error did not have a substantial and injurious
effect or influence in determining the sentence. We affirm
the denial of habeas relief on Henry’s causal nexus claim.
VI. INEFFECTIVE ASSISTANCE OF COUNSEL
Henry claims that his lawyer for resentencing, Gerald
Gavin, provided ineffective assistance of counsel by failing

11

Indeed, Henry’s historical alcoholism might have been considered
aggravating as well as mitigating, depending on the perspective of the
sentencing court.

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to investigate and present mitigating evidence of Henry’s
childhood sexual abuse and mental illness.
A. Background
The record at resentencing contained indications that
Henry was sexually abused by his father. Henry’s juvenile
court records reported that Henry’s father sexually abused
him during the summer of 1961, when Henry was 15. The
presentence investigation report said that Henry “engaged in
a homosexual relationship with his father.” During the guilt
phase of the trial, Henry referred to having been “raped” by
his father when he was 12 years old. These indications
notwithstanding, Gavin apparently made no effort to
investigate the sexual abuse issue further. Nor did Gavin
draw the court’s attention to the evidence already in the
record during resentencing.
The resentencing record also contained indications that
Henry suffered from mental health problems. The juvenile
court records reported that Henry’s mother tried to have him
committed for psychiatric treatment in 1961. They quoted
from a 1961 psychological evaluation in which Dr. P.K.
Brown diagnosed Henry with “hysterical character disorder”
and found “some impairment of functioning due to emotional
disturbance,” “hysterical defenses and psychopathic
tendencies,” and impulsive behavior caused by emotional or
sexual stimulation. They also quoted from a 1962
psychological evaluation in which Dr. Seymour Harris
diagnosed Henry with “a personality character disorder over
which he has fairly good control but which occasionally leads
to certain hysterical acting out behavior.” The record further
contained Dr. Fox’s 1988 psychiatric evaluation, prepared for
the original sentencing. Dr. Fox diagnosed Henry not only

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with alcohol dependence, as noted earlier, but also with
“Probable Antisocial Personality Disorder with Histrionic
Features,” although Dr. Fox also noted “superior
intelligence,” no indication of “abnormal perceptions,” no
evidence of any “substantive intellectual deterioration” and
that Henry “was certainly not psychotic.” Notwithstanding
these indications of mental health problems, Gavin did not
retain a mental health expert to provide additional mitigating
evidence at resentencing.12
Gavin’s resentencing strategy was twofold. First, he
incorporated the evidence and his predecessor’s arguments
from the original sentencing. Gavin thus incorporated the
mitigation arguments presented by defense attorney Ken
Everett at the original sentencing – diminished capacity at the
time of the murder due to intoxication, Henry’s history of
alcohol abuse, Henry’s intelligence, Henry’s troubled and
traumatic upbringing, psychological and mental problems
stemming from Henry’s upbringing, Henry’s compassion for
other people, Henry’s minor participation in Estes’ murder,
Henry’s inability to foresee the risk to Estes’ life, the cost of
administering the death penalty, the preciousness of human
12
Instead, Gavin tried, unsuccessfully, to obtain court approval to retain
an expert to prepare a life history and “psychological read” on Henry to
present a stronger case in mitigation. The trial court rejected the request,
saying that it “could justify the expenditure of an expert to do a
psychological evaluation [or] . . . of an investigator to go out and try to
find mitigation that could be presented to the Court but as far as having an
expert just to synopsize things and present it to me in a way that I can
understand, I don’t need to pay someone to do that. That’s what I do.”
The court said it was “not ruling out the possibility of granting a request
for the appointment of a specific expert to do a specific thing,” but Gavin
did not put forth any subsequent request for appointment of an expert to
perform a mental health evaluation. It appears that Henry was opposed to
any mental health evaluation.

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life, Henry’s remorse, Henry’s cooperation with police and
the unconstitutionality of the death penalty. Second, Gavin
introduced additional mitigating evidence regarding Henry’s
good conduct in prison subsequent to the original sentencing,
including testimony that Henry did legal research for other
inmates.
In his sentencing arguments, Gavin, in addition to
incorporating Everett’s arguments, emphasized the disparity
of sentences (Foote received at 15-year sentence following a
guilty plea), ongoing doubt over whether Foote was more
responsible for Estes’ murder, the barbarity of the death
penalty, the value of Henry’s life, the unconstitutionality of
the death penalty, the physical pain caused by lethal injection
and the public cost of death penalty administration.
The resentencing court considered Dr. Fox’s report but
rejected Henry’s mental health problems as a nonstatutory
mitigating factor. The court then reimposed the death penalty
after finding two aggravating circumstances – that Henry’s
1970 conviction for armed robbery qualified as an
aggravating factor under Arizona Revised Statutes section 13703(F)(1) and (F)(2), and that Henry committed the crime in
expectation of pecuniary gain under section 13-703(F)(5).
The court also found one mitigating factor – that Henry’s
capacity to appreciate the wrongfulness of his conduct at the
time of the crime was sufficiently impaired by alcohol under
section 13-703(G)(1).
Henry raised penalty phase ineffective assistance of
counsel in his state postconviction relief proceedings. In
support of his petition for relief, Henry presented a report
from Dr. Gwen Levitt, a forensic psychiatrist retained for
those proceedings. Henry did not cooperate with Dr. Levitt’s

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evaluation, so Levitt was unable to interview Henry or
conduct any tests on him. Dr. Levitt reviewed other evidence
in the case, however, including Henry’s juvenile court records
and Dr. Fox’s report. Based on her review, Dr. Levitt opined
that Henry likely suffered from “a long standing Depressive
Disorder Not Otherwise Specified, Alcohol Dependence (in
remission), Paranoid Personality Disorder, and Antisocial
Personality Disorder.” She added that “a diagnosis of Ruleout Delusional Disorder should also be considered.” Levitt
expressed her views “with caution” due to her inability to
interview Henry.13
In the last reasoned state court decision on the claim, the
state trial court rejected Henry’s penalty phase ineffective
assistance of counsel claim, finding neither deficient
performance nor prejudice. On the question of prejudice,
Judge Conn said: “Even keeping in mind the significantly
lower standard for proving mitigation than aggravation at a
capital sentencing, the Cour[t] can say unequivocally that its
resentencing decision in this case would have been the same
even if it had been presented with the report of Dr. Levitt.”
The federal district court also rejected Henry’s penalty
phase ineffective assistance of counsel claim, as well as his
request for an evidentiary hearing.
B. Analysis
As with Henry’s other claims, to obtain relief Henry must
both prove a constitutional violation and satisfy AEDPA. To
prove a constitutional violation for ineffective assistance of
13

Dr. Levitt also opined that Henry was incompetent to participate in the
state postconviction relief proceedings.

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counsel, Henry must show (1) “that counsel’s performance
was deficient,” and (2) “that the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S.
668, 687 (1984). To satisfy AEDPA, Henry relies on
§ 2254(d)(1) and (d)(2). He argues under § 2254(d)(1) that
the Arizona Superior Court’s decision rejecting this claim on
state postconviction review was an unreasonable application
of clearly established federal law. He also argues under
§ 2254(d)(2) that the state court’s decision was based on an
unreasonable determination of the facts.
1. Unreasonable Application of Clearly Established
Federal Law
Henry has not shown that the state court unreasonably
applied Strickland. Even assuming Gavin performed
deficiently (a question we need not and do not reach), the
state court’s conclusion that Henry failed to show prejudice
was not objectively unreasonable.14
“To assess prejudice, we consider the mitigating evidence
that was presented along with the new mitigating evidence
and reweigh all of it against the aggravating evidence to
determine whether there is a ‘reasonable probability’ that it
would have produced a different verdict.” Samayoa v. Ayers,
649 F.3d 919, 928 (9th Cir. 2011). “The likelihood of a

14

To satisfy § 2254(d)(1), Henry must show that the state court’s
application of Strickland was unreasonable. See Harrington v. Richter,
131 S. Ct. 770, 785–87 (2011). This is a high standard: “A state court’s
determination that a claim lacks merit precludes federal habeas relief so
long as ‘fair-minded jurists could disagree’ on the correctness of the state
court’s decision.” Id. at 786 (quoting Yarborough v. Alvarado, 541 U.S.
652, 664 (2004)).

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different result must be substantial, not just conceivable.”
Richter, 131 S. Ct. at 792.
Henry has failed to present any additional mitigating
evidence of childhood sexual abuse, life history, family
background or, with the exception of Dr. Levitt’s report,
mental health problems. As the district court stated, “[w]hile
Petitioner faults counsel for failing to obtain family
background and mental health mitigation, he does not
disclose such evidence or the source of such evidence to this
Court, or suggest that it was available at the time of
resentencing.” Henry asserts that he has “presented evidence
of significant, humanizing mitigation information that was
never investigated or presented at sentencing,”, but he has not
actually done so.15
Rather, Henry proffers a mitigation case that differs from
the case presented at resentencing in only two respects: (1)
counsel would have emphasized the sexual abuse evidence
already in the record; and (2) counsel would have presented
Dr. Levitt’s report. It is highly unlikely that these differences
would have affected the sentence.

15

Henry apparently intended to establish a factual basis for prejudice
through an evidentiary hearing in federal district court. He argued in his
amended habeas petition that he would “seek factual development and
expansion of the record to establish this prejudice evidence at the
appropriate time.” He never did so, however, and Cullen v. Pinholster,
131 S. Ct. 1388, 1398 (2011), now bars such a hearing unless Henry can
satisfy § 2254(d), something he has not done. See Wood v. Ryan, 693 F.3d
1104, 1122 (9th Cir. 2012) (explaining that review under § 2254(d)(1) is
limited to the record that was before the state court that adjudicated the
claim on the merits). Given that Henry has not satisfied § 2254(d), the
district court did not abuse its discretion by denying Henry’s request for
an evidentiary hearing.

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The sexual abuse evidence was already in the record, and
thus presumably already considered by the resentencing
court.16 The evidence, moreover, provided few details of the
alleged sexual abuse and no discussion of any effects of the
abuse on Henry’s long-term mental health. It therefore had
little potential to affect the sentence.
Dr. Levitt’s report was also unlikely to sway the
sentencing court. It is true that, whereas Dr. Fox diagnosed
Henry only with alcohol dependence and probable antisocial
personality disorder with histrionic features, Dr. Levitt
concluded that Henry also likely suffered from depressive and
paranoid personality disorders, and might also suffer from
delusional disorder. Unlike Dr. Fox, however, Dr. Levitt did
not interview or examine Henry or perform any tests on him.
Dr. Levitt thus expressed her views “with caution.” The
Levitt report does not appear to depart substantially from Dr.
Fox’s report, but even if it did so, Henry does not explain
why the resentencing court would have given greater weight
to Dr. Levitt, who did not examine Henry, than to Dr. Fox,
who did.
In sum, the new evidence Henry proffers is sparse and of
limited mitigating value. The state court thus reasonably
concluded that its resentencing decision would have been the
same even if it had been presented with this additional
evidence. Accordingly, the state court’s determination that

16

This is not to say that counsel could not have done more to draw the
court’s attention to the evidence. In Lambright, 490 F.3d at 1125, we
explained that a “sentencing judge cannot be expected to comb the record
looking for mitigating factors.” This is not a case, however, in which the
evidence of sexual abuse was likely to have escaped the notice of the
sentencing court.

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Henry failed to establish prejudice was not an unreasonable
application of clearly established federal law.
2. Unreasonable Determination of the Facts
Henry’s contention that state postconviction review court
based its denial of his penalty phase ineffective assistance of
counsel claim on an unreasonable determination of the facts
under § 2254(d)(2) is also without merit. Henry asserts that
the state court unreasonably determined the facts when it
gave Dr. Levitt’s psychiatric evaluation “no weight at all”
because Dr. Levitt was unable to conduct a personal interview
with Henry.
This argument fails because it misreads the record. The
state court said that it was “skeptical about the validity of a
report done without any contact with the subject of the
report,” but did not say that it would give the report no
weight. The court instead appears to have given the report
little weight, and it was not objectively unreasonable for the
court to have done so. Thus, the state court did not
unreasonably determine the facts.
In sum, Henry has satisfied neither § 2254(d)(1) nor
§ 2254(d)(2). We therefore affirm the district court’s denial
of habeas relief on Henry’s penalty phase ineffective
assistance of counsel claim.
CONCLUSION
We grant Henry’s motion to expand to the certificate of
appealability to cover his causal nexus claim and deny
Henry’s motion to expand the certificate of appealability to

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cover his juror misconduct claim. We affirm the district
court’s denial of habeas relief.
AFFIRMED.