Scott Clabourne v. Charles Ryan

Filing

FILED OPINION (MARSHA S. BERZON, RICHARD R. CLIFTON and SANDRA S. IKUTA) AFFIRMED IN PART; VACATED IN PART; REMANDED. Judge: RRC Authoring, FILED AND ENTERED JUDGMENT. [9002200]

Case: 09-99022

03/05/2014

ID: 9002200

DktEntry: 50-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SCOTT D. CLABOURNE,
Petitioner-Appellant,
v.

No. 09-99022
D.C. No.
4:03-cv-00542RCC

CHARLES L. RYAN,
Respondent-Appellee.
OPINION

Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Argued and Submitted
December 4, 2012—Pasadena, California
Filed March 5, 2014
Before: Marsha S. Berzon, Richard R. Clifton,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Clifton

Page: 1 of 38

Case: 09-99022

03/05/2014

2

ID: 9002200

DktEntry: 50-1

CLABOURNE V. RYAN
SUMMARY*

Habeas Corpus/Death Penalty
The panel affirmed in part and vacated in part the district
court’s denial of a 28 U.S.C. § 2254 habeas corpus petition
claiming that the state court refused to consider mitigating
evidence and ineffective assistance of counsel.
The panel first affirmed the district court’s denial of
petitioner’s claim that the state supreme court refused to
consider mitigating evidence of petitioner’s mental condition
at sentencing, because the record reflected that the state court
did give weight to such evidence. The panel was
unpersuaded by petitioner’s argument that the state court
applied a causal nexus test to the evidence.
The panel issued a certificate of appealability as to two
claims of ineffective assistance of counsel at resentencing
(petitioner was resentenced to death after his initial capital
sentence was reversed). The panel vacated the denial of relief
as to petitioner’s procedurally defaulted claim that counsel
was ineffective for failing to object to the sentencing court’s
consideration of a confession that petitioner had given to the
police in 1982. The panel explained that there may be merit
to petitioner’s claim, and remanded for the district court to
consider the claim in light of Martinez v. Ryan, 132 S. Ct.
1309 (2012).

*

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

Page: 2 of 38

Case: 09-99022

03/05/2014

ID: 9002200

CLABOURNE V. RYAN

DktEntry: 50-1

Page: 3 of 38

3

The panel affirmed the denial of relief as to petitioner’s
claim that counsel was ineffective by filing to obtain
additional mitigating evidence.

COUNSEL
S. Jonathan Young, Williamson & Young, PC, Tucson,
Arizona, for Petitioner-Appellant.
Jeffrey A. Zick (argued), Office of the Attorney General,
Phoenix, Arizona; Kent Cattani and Amy Pignatella Cain,
Office of the Attorney General, Tucson, Arizona, for
Respondent-Appellee.

OPINION
CLIFTON, Circuit Judge:
Petitioner Scott Clabourne was convicted of murder and
was sentenced to death in 1982. His first petition for federal
habeas relief was denied by the district court as to his
conviction but was granted as to the capital sentence. That
decision was affirmed by our court in Clabourne v. Lewis,
64 F.3d 1373 (9th Cir. 1995). Clabourne was resentenced in
state court in 1997, and he was again sentenced to death. His
petition for federal habeas relief from that sentence was
denied by the district court, and he appeals that denial to this
court.
The district court certified one issue for appeal, based on
Clabourne’s argument that the Arizona Supreme Court

Case: 09-99022

4

03/05/2014

ID: 9002200

DktEntry: 50-1

CLABOURNE V. RYAN

refused to consider mitigation evidence contrary to Eddings
v. Oklahoma, 455 U.S. 104 (1982), specifically evidence
regarding his mental illness. We affirm the district court’s
denial of this claim because the Arizona Supreme Court did
in fact consider, and gave weight to, Clabourne’s mental
condition.
Clabourne asks us to issue a certificate of appealability
for other claims. After consideration, we decline to certify
most of those claims, as they lack merit, even measured by
the low standard for issuing a certificate of appealability
under 28 U.S.C. § 2253.
We do issue a certificate of appealability as to two
additional claims. Both allege ineffective assistance of
counsel at the 1997 resentencing. The district court denied
habeas relief as to those claims because they had been
procedurally defaulted due to Clabourne’s failure to present
them properly to the state court. Subsequent to the district
court’s order, the Supreme Court in Martinez v. Ryan,
132 S.Ct. 1309 (2012), opened a narrow path to excuse
procedural default in certain circumstances. In light of
Martinez, we vacate the district court’s denial of habeas relief
as to one of Clabourne’s ineffective assistance claims: the
claim based on the failure of his counsel at resentencing to
object to the court’s consideration of a confession Clabourne
had given to the police in 1982. We remand that claim to the
district court for further proceedings. As to the other claim,
however, regarding the alleged failure of resentencing
counsel to submit additional psychological evidence, we
affirm the denial of habeas relief.

Page: 4 of 38

Case: 09-99022

03/05/2014

ID: 9002200

CLABOURNE V. RYAN

DktEntry: 50-1

Page: 5 of 38

5

In sum, we affirm the denial of habeas relief as to all but
one claim. On that claim, we vacate the denial of habeas
relief and remand for further proceedings.
I. Background
We previously described the facts of this case in
Clabourne, 64 F.3d at 1375–77, which led to Clabourne’s
resentencing. They have not changed. We will briefly
summarize those facts and add the subsequent history that is
pertinent to Clabourne’s current claims.
The victim, a 22 year old student at the University of
Arizona, was murdered in September 1980. That night, she
left the Green Dolphin bar in Tucson with Clabourne, Larry
Langston, and Edward Carrico. The next morning, her body
was found naked and wrapped in a sheet, lying in a dry river
bed. She had been severely beaten, raped, strangled, and
stabbed in the chest.
Her killers remained unknown for almost a year. A tipster
then reported to the Tucson police that her boyfriend, Scott
Clabourne, had on several occasions admitted that he had
been involved in a murder. When the tipster came forward,
Clabourne was already in custody on unrelated burglary
charges, for which he was represented by counsel and had
filed a written invocation of his right to remain silent or have
an attorney present for questioning.
Detectives interviewed Clabourne at the Pima County
Jail. Clabourne gave a detailed confession. Clabourne,
Langston, and Carrico convinced the victim to leave the bar
with them and took her to Langston’s friend’s house. There,
they forced her to remove all of her clothes and to serve them

Case: 09-99022

6

03/05/2014

ID: 9002200

DktEntry: 50-1

CLABOURNE V. RYAN

drinks. Then they repeatedly raped her before Clabourne
strangled her with a bandana and stabbed her.
Clabourne was charged with first degree murder, sexual
assault, and kidnapping. The court found Clabourne
competent to stand trial. He was tried alone and was the only
one of the three offenders to go to trial: Langston pleaded
guilty to first degree murder, and Carrico pleaded guilty to
hindering the prosecution.
Clabourne’s confession was an important part of the case
against him, but it was not the only evidence. In addition to
his taped confession to the detectives, Clabourne had also
confessed his involvement in the rape and murder to several
other people, and several witnesses testified to incriminating
statements made by him. Clabourne confessed to a prison
guard that he and a friend had sex with a girl and then killed
her. Another prison guard overheard Clabourne say to a
fellow inmate, “Yeah, I raped her. She didn’t want it but I
know she liked it.” Prosecutors corroborated Clabourne’s
confession with additional evidence. A witness identified
Clabourne as one of the men who left the Green Dolphin with
the victim. Clabourne’s girlfriend testified that he had told
her about strangling a girl and that the bandana used to
strangle the victim was similar to one that belonged to
Clabourne.
Clabourne called only one witness in his defense, Dr.
Sanford Berlin, a psychiatrist. Dr. Berlin had treated
Clabourne at the University of Arizona Medical Center
several years earlier. But Clabourne’s trial counsel did not
contact Dr. Berlin until the day of trial, so he had no
opportunity to update his observations and little opportunity
to prepare to testify. Not surprisingly, under those

Page: 6 of 38

Case: 09-99022

03/05/2014

ID: 9002200

CLABOURNE V. RYAN

DktEntry: 50-1

Page: 7 of 38

7

circumstances, his testimony was of little help to Clabourne’s
defense. On the subject of Clabourne’s mental condition, the
State called two psychiatrists, Dr. Gelardin and Dr. LaWall,
who testified that Clabourne was legally sane at the time of
the murder.
The jury returned a unanimous guilty verdict. Clabourne
was sentenced to death, and his capital sentence was affirmed
by the Arizona Supreme Court. He exhausted his state postconviction remedies on his conviction and his original
sentence, but he failed to obtain relief.
Clabourne then sought federal habeas relief. In his
September 1993 federal habeas proceeding, Clabourne
presented evidence in support of his claim that he received
ineffective assistance of counsel at his initial trial and
sentencing.
Doctors LaWall, Gelardin, and Berlin all testified again
at the federal evidentiary hearing on Clabourne’s first petition
for a writ of habeas corpus. In contrast to the incomplete
records the doctors received prior to trial, before the
evidentiary hearing they received records of Clabourne’s full
medical history regarding his mental health issues. Their
testimony changed considerably, to Clabourne’s benefit.
Dr. Berlin testified that Clabourne suffered from some
form of schizophrenia. Dr. Gelardin testified that, in light of
Clabourne’s entire mental health record, which had not been
provided to him at the time of trial, Clabourne likely suffered
from schizophrenia. He testified that Clabourne had a
childlike way of responding to the world and had grandiose
thought processes that made him prone to manipulation. Dr.

Case: 09-99022

8

03/05/2014

ID: 9002200

DktEntry: 50-1

CLABOURNE V. RYAN

LaWall similarly supplemented his testimony at trial with
opinions favorable to Clabourne.
The district court granted Clabourne habeas relief on the
grounds that Clabourne received ineffective assistance of
counsel at sentencing. It held that trial counsel was
ineffective because he failed to obtain medical records that
supported Clabourne’s claims that he suffered from mental
illness and because he failed to properly prepare Dr. Berlin or
any expert witness in support of mitigation. Clabourne,
64 F.3d at 1387 (affirming the district court’s ruling that
Clabourne’s trial counsel’s performance at sentencing
“amounted in every respect to no representation at all”)
(internal quotations, citation, and alteration omitted). The
district court granted Clabourne’s petition for a writ of habeas
corpus as to the capital sentence phase of Clabourne’s trial,
and this court affirmed. Id.
Clabourne was resentenced by the state court in 1997. A
different judge from outside of Pima County presided over
the proceedings. The same counsel who had successfully
represented Clabourne in the federal habeas proceedings
represented him at resentencing. Clabourne’s attorney
submitted to the resentencing court the entire record that was
created in the 1993 federal habeas proceedings, including the
evidence regarding Clabourne’s mental condition. The
resentencing court also considered the state trial, sentencing,
and appellate records.
The resentencing court found that the State proved an
aggravating circumstance under Ariz. Rev. Stat. § 13703(F)(6), renumbered at 13-751(F)(6), namely that
Clabourne committed the offense in an especially heinous,
cruel, or depraved manner. The offense was committed in a

Page: 8 of 38

Case: 09-99022

03/05/2014

ID: 9002200

CLABOURNE V. RYAN

DktEntry: 50-1

Page: 9 of 38

9

cruel manner, the court held, because the victim consciously
suffered beyond the norm experienced by other victims of
first-degree murder. Although the cruelty finding was
sufficient to establish the (F)(6) aggravating factor, the court
also found that Clabourne committed the offense with an
especially heinous or depraved state of mind because the facts
established that Clabourne showed an indifference to the
murder of the victim and a callous indifference to her life.
The resentencing court held that Clabourne failed to
establish any statutory mitigating factors, but it found several
nonstatutory mitigating factors. The resentencing court found
to be mitigating that Clabourne “has a passive personality, is
impulsive, and is easily manipulated by others.” It held,
however, that the mitigating evidence did not outweigh the
aggravating circumstances of the crime and sentenced
Clabourne to death. Clabourne appealed.
The Arizona Supreme Court conducted an independent
review of Clabourne’s capital sentence. State v. Clabourne,
983 P.2d 748, 753 (Ariz. 1999) (en banc) (hereafter “Az
Clabourne”). It found that the murder was especially cruel
because of the pain and distress visited upon the victim. Id. It
gave Clabourne’s mental illness some nonstatutory mitigating
weight but ultimately held that the mitigating circumstances
were insufficient to warrant leniency. Id. at 753–57. It
affirmed Clabourne’s death sentence. Id. at 759.
Following direct review of his resentencing, Clabourne
was appointed new counsel for state post-conviction
proceedings. Post-conviction counsel filed several petitions
that did not comply with Arizona’s procedural requirements
for post-conviction proceedings. The Arizona trial court
dismissed all claims with prejudice after giving Clabourne’s

Case: 09-99022

10

03/05/2014

ID: 9002200

DktEntry: 50-1

CLABOURNE V. RYAN

newly appointed counsel several attempts to cure the
deficiencies. Counsel had asserted many claims in the
deficient petitions, but he raised only one issue on appeal
from the final dismissal of the petition: the constitutionality
of Clabourne’s judge-imposed capital sentence in light of
Ring v. Arizona, 536 U.S. 584 (2002) (holding that a jury
must decide aggravating factors in capital sentencing). The
Arizona Supreme Court denied discretionary review. Az
Clabourne, supra.
Clabourne initiated the current federal habeas proceeding
with a petition under 28 U.S.C. § 2254 filed in the district
court, asserting eight claims for relief in his amended petition.
He raised two claims of ineffective assistance by his
resentencing counsel. Those claims were based on (1) the
failure of counsel at resentencing to seek suppression of his
1982 confession; and (2) the failure of counsel to obtain and
present an additional evaluation of Clabourne’s mental health
in support of mitigation. The district court concluded that the
claims were procedurally defaulted because they had not been
presented to the state courts on appeal or during postconviction relief proceedings following the resentencing. The
district court further held that Clabourne did not establish
cause to excuse the procedural defaults. It also denied
Clabourne’s five other claims, but granted a certificate of
appealability on one claim: that the Arizona courts
unconstitutionally required proof of a causal nexus between
Clabourne’s mental health issues and the crime.
Clabourne appeals and requests a certificate of
appealability on all claims he asserted in his petition. We
grant a certificate of appealability, required under 28 U.S.C.
§ 2253, on Clabourne’s two ineffective assistance of counsel

Page: 10 of 38

Case: 09-99022

03/05/2014

ID: 9002200

CLABOURNE V. RYAN

DktEntry: 50-1

Page: 11 of 38

11

claims. We deny a certificate of appealability as to the other
claims. See infra at 20 n.2.
II. Discussion
We review de novo the district court’s decision to deny
Clabourne’s habeas petition. Dyer v. Hornbeck, 706 F.3d
1134, 1137 (9th Cir. 2013). Because the petition was filed
after April 24, 1996, the effective date of the Anti-Terrorism
and Death Penalty Act of 1996 (AEDPA), its provisions
apply. Jackson v. Nevada, 688 F.3d 1091, 1095–96 (9th Cir.
2012).
Under AEDPA, a habeas petition cannot be granted unless
the state court decision was (1) “contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States;” or
(2) “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)(1)–(2). AEDPA’s “clearly established
law” requirement limits the area of law on which a habeas
court may rely to those constitutional principles enunciated in
Supreme Court decisions. See Williams v. Taylor, 529 U.S.
362, 381–82 (2000). Only Supreme Court precedents are
binding on state courts under AEDPA, but our precedents
may be pertinent to the extent that they illuminate the
meaning and application of Supreme Court precedents. Moses
v. Payne, 555 F.3d 742, 759 (9th Cir. 2008); see also Parker
v. Matthews, 132 S.Ct. 2148, 2155–56 (2012) (reversing the
Sixth Circuit for relying on circuit precedent as illustrating
“clearly established federal law,” where the circuit precedent
bore “scant resemblance” to the Supreme Court precedent it
was said to illustrate). When applying these standards, we

Case: 09-99022

12

03/05/2014

ID: 9002200

DktEntry: 50-1

Page: 12 of 38

CLABOURNE V. RYAN

review the “last reasoned decision” by a state court. Dyer,
706 F.3d at 1137.
A. The Arizona Supreme Court’s
Clabourne’s mental illness.

consideration

of

We first consider the issue certified by the district court:
did the Arizona Supreme Court rule contrary to or
unreasonably apply Eddings v. Oklahoma, 455 U.S. 104
(1982), by refusing to consider Clabourne’s mental illness
because there was not a causal nexus between his mental
condition and his crimes? Our answer is that it did not. The
Arizona Supreme Court considered and gave mitigating
weight to Clabourne’s mental health problems, so its decision
was not contrary to federal law. We affirm the district court’s
decision to deny Clabourne’s Eddings claim.
Under the Eighth and Fourteenth Amendments, a
sentencing court cannot “refuse to consider, as a matter of
law, any relevant mitigating evidence.” Id. at 114 (emphasis
in original). Eddings is grounded in the principle that
punishment should be based on an individual assessment of
the personal culpability of the criminal defendant. Penry v.
Lynaugh, 492 U.S. 302, 319 (1989), abrogated on other
grounds by Atkins v. Virginia, 492 U.S. 304 (2002). The
sentencer must be able to give effect to the proffered
mitigating evidence. Id. A court cannot disregard mitigating
evidence because the defendant failed to connect the evidence
to the crime. Styers v. Schriro, 547 F.3d 1026, 1035 (9th Cir.
2008) (holding that the Arizona Supreme Court
unconstitutionally disregarded mitigating evidence of the
defendant’s post-traumatic stress disorder by requiring the
defendant to show that his disorder was causally related to his
crime).

Case: 09-99022

03/05/2014

ID: 9002200

CLABOURNE V. RYAN

DktEntry: 50-1

Page: 13 of 38

13

When the record reflects that the court considered and
weighed the value of the proffered mitigating evidence, even
when the court does not specifically cite the mitigating
evidence, there is no violation of the principle described in
Eddings. Schad v. Ryan, 671 F.3d 708, 724 (9th Cir. 2011)
(holding that the Arizona Supreme Court did not violate
Eddings when it gave little weight to mitigating evidence
because, “[a]bsent a clear indication in the record that the
state court applied the wrong standard, we cannot assume the
courts violated Eddings’s constitutional mandates”) (citing
Bell v. Cone, 543 U.S. 447, 455 (2005)).
Arizona law separates mitigating evidence into two
categories, statutory and nonstatutory. There are five statutory
mitigating factors under Arizona’s capital sentencing statute:
mental capacity, duress, minor participation, reasonable
foreseeability, and age. Ariz. Rev. Stat. § 13-703(G)(1)–(5).1
Arizona law also requires the sentencing court to separately
consider nonstatutory mitigators, “including any aspect of the
defendant’s character or any circumstance of the offense
relevant to determining whether a capital sentence is too
severe.” State v. White, 982 P.2d 819, 824 (Ariz. 1999) (en
banc) (citing, among other sources, Ariz. Rev. Stat. § 13703(G)).

1

The statute was renumbered in 2009, and is now codified without
amendment at A.R.S. § 13-751. Because the Arizona courts and both
parties refer to the old numbering, we do the same. Subsection (G)(1), at
issue here, provides: “The trier of fact shall consider as mitigating
circumstances any factors proffered by the defendant or the state that are
relevant in determining whether to impose a sentence less than death,
including [whether] . . . [t]he defendant’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.”

Case: 09-99022

14

03/05/2014

ID: 9002200

DktEntry: 50-1

CLABOURNE V. RYAN

The Arizona Supreme Court considered Clabourne’s
mental health first within the framework of Arizona’s
statutory mitigation requirements. The court reviewed the
proffered expert testimony and Clabourne’s mental health
records to determine whether the evidence demonstrated that
he had an impaired mental capacity under the terms of
subsection (G)(1). Two of the experts had testified that
Clabourne suffered from mental illness, probably
schizophrenia, during the time when the murder occurred, and
the third testified that Clabourne had a personality disorder.
Az Clabourne, 983 P.2d at 754. But there was no evidence of
a causal relationship between Clabourne’s mental condition
and the murder. Id. The court noted that in every prior case in
which a defendant was held to have demonstrated impaired
capacity justifying leniency under A.R.S. § 13-703(G)(1), the
mental illness was not only a substantial mitigating factor, it
was a major contributing cause sufficiently substantial to
outweigh the aggravating factors present. Id. (citing State v.
Jimenez, 799 P.2d 785, 800 (Ariz. 1990)). The court therefore
held that “the status of being mentally ill alone is insufficient
to support a (G)(1) finding.” Id.
But that did not end the Arizona Supreme Court’s
consideration of Clabourne’s mental health problems. It again
addressed Clabourne’s mental illness within its review of
nonstatutory mitigation factors. Under Arizona law, “[w]hen
a defendant’s mental capacity is insufficient to support a
(G)(1) finding, the court must consider whether it is a
nonstatutory mitigating circumstance.” Az Clabourne,
983 P.2d at 756. The Arizona Supreme Court held that the
resentencing court had considered Clabourne’s mental health
evidence in its nonstatutory mitigation finding. Id. And,
conducting its independent review of the evidence, the
Arizona Supreme Court stated that Clabourne’s passive

Page: 14 of 38

Case: 09-99022

03/05/2014

ID: 9002200

CLABOURNE V. RYAN

DktEntry: 50-1

Page: 15 of 38

15

personality and vulnerability to manipulation were “rooted to
some degree in his mental health problems.” Id. The court
held, “As such, we afford some nonstatutory mitigating
weight to Clabourne’s mental and personality deficiencies.”
Id. By its own words, the Arizona Supreme Court considered
and gave mitigating weight to Clabourne’s mental condition.
Clabourne argues nonetheless that the Arizona Supreme
Court failed to consider his proffered mental health evidence
as mitigation. He contends that Arizona law at the time of his
resentencing generally required a causal nexus before giving
mitigating weight to a defendant’s mitigation evidence. He
also asks us to look to decisions of this court that granted
habeas relief based on Arizona’s application of a causal nexus
test, such as Styers v. Schriro, 547 F.3d 1026, 1035 (9th Cir.
2008). And, he asserts that subsequent decisions of the
Arizona Supreme Court suggest that the court applied a
causal nexus requirement because they cite to the Az
Clabourne decision for support on that issue. See, e.g., State
v. Carlson, 48 P.3d 1180, 1196 (Ariz. 2002) (en banc); State
v. Phillips, 46 P.3d 1048, 1060 (Ariz. 2002); State v. Cañez,
42 P.3d 564, 595 (Ariz. 2002) (en banc).
We rejected similar arguments in Schad v. Ryan, 671 F.3d
708, 722–24 (9th Cir. 2011). In that case, the petitioner
argued that Arizona law precluded the Arizona Supreme
Court from considering evidence of his troubled background
if that evidence did not share a causal nexus with the crime.
Id. at 723. Rather than look to Arizona law generally, we
looked to the Arizona Supreme Court’s decision in Schad’s
case. Id. at 724. The Arizona Supreme Court stated that
Schad’s evidence of a difficult childhood “was not ‘a
persuasive mitigating circumstance in this case.’” Id. (quoting
the sentencing court). We noted that this statement reflected

Case: 09-99022

16

03/05/2014

ID: 9002200

DktEntry: 50-1

CLABOURNE V. RYAN

the court’s consideration of the mitigating evidence and that
there was no part of the record that reflected the court’s
application of a nexus test to Schad’s childhood. Id. We held
that a federal court sitting in review of a state court decision
could not assume that a state court violated Eddings without
a clear indication from the record that the state applied an
unconstitutional rule. Id.
We cannot make that assumption here, either. Relief must
be justified by the decision adjudicating Clabourne’s claim.
28 U.S.C. § 2254(d) (precluding a court from granting a writ
of habeas corpus unless “the adjudication of the claim . . .
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal
law”); see Towery v. Ryan, 673 F.3d 933, 946 (9th Cir. 2012)
(“Our review must be of the record in Towery itself, rather
than the state supreme court’s subsequent interpretations of
Towery.”). A federal court reviewing a state court decision on
a petition for a writ of habeas corpus sits in review of the last
decision that resulted in the prisoner’s incarceration, not
subsequent interpretations justifying results in other cases.
Towery, 673 F.3d at 946. The Arizona Supreme Court’s
decision here gave “some nonstatutory mitigating weight to
Clabourne’s mental and personality deficiencies.” Az
Clabourne, 983 P.2d at 756. We cannot construe the court to
have violated Eddings by giving Clabourne’s mental health
issues “no weight by excluding such evidence from their
consideration.” Eddings, 455 U.S. at 115 (1982). The Arizona
Supreme Court’s decision under review was not contrary to
federal law, because it considered Clabourne’s mental health
condition as mitigating evidence. Eddings requires no more.
Clabourne’s remaining arguments focus on statements
made in his case, rather than others, but they do not warrant

Page: 16 of 38

Case: 09-99022

03/05/2014

ID: 9002200

CLABOURNE V. RYAN

DktEntry: 50-1

Page: 17 of 38

17

relief, either. He argues that the Arizona Supreme Court
failed to consider the evidence of Clabourne’s schizophrenia
because it never mentioned schizophrenia in its discussion of
nonstatutory mitigation. He also contends that the
prosecutor’s arguments at resentencing indicate that the court
relied on a causal nexus test. Neither argument has merit.
A state is “free to determine the manner in which a
[sentencer] may consider mitigating evidence” so long as
those who impose the sentence have the discretion to consider
the mitigating evidence. Kansas v. Marsh, 548 U.S. 163, 171
(2006) (citing Walton v. Arizona, 497 U.S. 639, 652 (1990),
overruled on other grounds by Ring v. Arizona, 536 U.S. 584
(2002)). Here, the Arizona Supreme Court first summarized
the testimony of the three expert witnesses who testified in
support of Clabourne’s mental illness. It stated, “The record
shows Drs. Gelardin and Berlin believed that Clabourne
suffered from mental illness, probably schizophrenia, during
the time period when the murder occurred.” Az Clabourne,
983 P.2d at 754. After the court concluded that Clabourne’s
mental illness did not meet the requirements for statutory
mitigation, it examined that evidence through the lens of
nonstatutory mitigation. It did not repeat the summary of the
evidence. For nonstatutory mitigation, the court held that
Clabourne’s mental illness was entitled to some mitigating
weight. Id. at 756.
Clabourne asks us to conclude that the Arizona Supreme
Court’s failure to mention “schizophrenia” in its discussion
of nonstatutory mitigation rendered its decision
constitutionally deficient. Clabourne’s argument surmises
that the court considered schizophrenia in its discussion of
Clabourne’s “mental illness” for purposes of statutory
mitigation, Az Clabourne, 983 P.2d at 754, but disregarded

Case: 09-99022

18

03/05/2014

ID: 9002200

DktEntry: 50-1

CLABOURNE V. RYAN

schizophrenia when it later discussed Clabourne’s “mental
and personality deficiencies” in its analysis of nonstatutory
mitigation, because it did not use the word “schizophrenia,”
id. at 756. We cannot draw that inference. It is illogical to
conclude that the Arizona Supreme Court considered that
diagnosis and explicitly referenced it in one portion of its
opinion but forgot it when considering nonstatutory
mitigation, discussed just a few pages later in the opinion.
The court considered Clabourne’s schizophrenia, so it did not
rule contrary to federal law.
Clabourne also points to the prosecutor’s references to a
causal nexus test at the resentencing hearing. This argument
lends no support to Clabourne’s claim. We only review
whether the last reasoned state court decision was contrary to
federal law. 28 U.S.C. § 2254(d). Prosecutors’ arguments
provide no basis for relief, in this context, when the decision
does not rely on them. Because the Arizona Supreme Court’s
adjudication considered Clabourne’s mental health record, it
complied with federal law. We thus affirm the district court’s
denial of habeas relief on this ground, the only ground
covered by the certificate of appealability issued by the
district court.
B. Ineffective assistance of resentencing counsel and
Martinez v. Ryan.
Clabourne asserts two ineffective assistance of counsel
claims arising from his resentencing. As noted above, we
grant a certificate of appealability as to those issues. One
argument is that his resentencing counsel was ineffective in
failing to suppress the confession that police obtained after
Clabourne invoked his right to counsel. We refer to this as the
confession-based ineffectiveness claim. The other argument

Page: 18 of 38

Case: 09-99022

03/05/2014

ID: 9002200

CLABOURNE V. RYAN

DktEntry: 50-1

Page: 19 of 38

19

is that his resentencing counsel was ineffective in failing to
obtain additional psychological examinations to support
mitigation. We call this the mitigation-based ineffectiveness
claim.
Clabourne concedes that these claims were not exhausted
in state court. The confession-based ineffectiveness claim was
never raised in state court, and the mitigation-based
ineffectiveness claim was abandoned on appeal in state postconviction proceedings. The district court held that they were
procedurally defaulted and that Clabourne failed to establish
cause to excuse the default. See Coleman v. Thompson,
501 U.S. 722, 750 (1991) (holding that a prisoner may obtain
federal review of a procedurally defaulted claim by showing
cause and prejudice).
The district court, however, did not have the benefit of the
Supreme Court’s later decision in Martinez v. Ryan, 132 S.Ct.
1309 (2012). We must consider (1) whether Martinez opens
the door to consideration of Clabourne’s procedurally
defaulted claims; and (2) if so, whether Clabourne’s
procedural default can be excused in light of Martinez.
1. Martinez v. Ryan
Federal review is generally not available for a state
prisoner’s claims when those claims have been denied
pursuant to an independent and adequate state procedural
rule. Coleman, 501 U.S. at 750. In such situations, “federal
habeas review of the claims is barred unless the prisoner can
demonstrate cause for the default and actual prejudice as a
result of the alleged violation of federal law.” Id. Thus,
habeas petitioners can overcome procedural default under this
exception only if they are able to make two showings: (1)

Case: 09-99022

20

03/05/2014

ID: 9002200

DktEntry: 50-1

CLABOURNE V. RYAN

“cause” for the default, where the cause is something external
to the prisoner that cannot be fairly attributed to him; and (2)
prejudice. Id.2
Martinez provides one route by which a habeas petitioner
attempting to excuse a procedural bar by showing cause and
prejudice can establish “cause.” Until the Supreme Court’s
recent decision in Martinez, a prisoner could not demonstrate
cause by claiming that he received ineffective assistance of
counsel during state post-conviction proceedings. See
Coleman, 501 U.S. at 752–53 (holding that attorney error is
not cause to excuse a default). That barrier was based on the
premise, unchanged by Martinez, that an individual does not
have a constitutional right to counsel in post-conviction
proceedings, so the prisoner “must bear the risk of attorney
error that results in a procedural default.” Id. (internal
quotations omitted). But in Martinez, the Supreme Court
announced that in certain narrow circumstances, “when a
State requires a prisoner to raise an ineffective-assistance-oftrial-counsel claim in a collateral proceeding,” a prisoner may
establish “cause” to excuse the procedural default of a claim
that the prisoner had received ineffective assistance of
counsel at trial or during sentencing proceedings by
demonstrating that counsel in the initial-review collateral
proceeding was ineffective or there was no counsel in such a
proceeding. Martinez, 132 S.Ct. at 1315, 1318, 1320.
Martinez applies to Clabourne’s confession-based and
mitigation-based ineffectiveness claims because Arizona law

2
Coleman also recognized that a prisoner can overcome a procedural
default without showing cause and prejudice by “demonstrat[ing] that
failure to consider the claims will result in a fundamental miscarriage of
justice.” 501 U.S. at 750. This second exception is not at issue in the
present case.

Page: 20 of 38

Case: 09-99022

03/05/2014

ID: 9002200

CLABOURNE V. RYAN

DktEntry: 50-1

Page: 21 of 38

21

required that he raise them in collateral proceedings. See
State v. Maturana, 882 P.2d 933, 940 (Ariz. 1994) (en banc).
In Detrich v. Ryan, 2013 WL 4712729 (9th Cir. Sept. 3,
2013) (en banc), an en banc panel of our court considered the
impact of Martinez, albeit through four separate opinions,
none of which commanded a majority of six out of the
eleven-judge panel. An opinion by Judge W. Fletcher
announced the judgment, but that opinion was joined in full
by only two other judges (Judges Pregerson and Reinhardt).
Another judge (Judge Christen) concurred in Section II of
Judge Fletcher’s opinion and also the result. Judges Nguyen
and Watford each concurred in the result, and each wrote a
separate opinion. Judge Graber authored a dissent, joined in
full by four other judges (Chief Judge Kozinski and Judges
Gould, Bea, and Murguia).
Despite the apparent fragmentation, a review of the
several opinions reveals at least three important conclusions
supported by a majority of the en banc panel. To reach these
three conclusions, outlined below, and determine holdings
from our court’s divided en banc opinions, we adapt for
purposes of determining the impact of a fragmented en banc
opinion of this court on three-judge panels the approach taken
by the First, Third, Seventh, and Eighth Circuits to derive
holdings from fragmented Supreme Court decisions.3 Under
3

By doing so, we do not determine whether the Supreme Court has
prescribed the same approach to application of its own fragmented
opinions, as the issue is not before us. See Marks v. United States,
430 U.S. 188, 193 (1977). There is a circuit split on that question.
Compare United States v. Johnson, 467 F.3d 56, 62–66 (1st Cir. 2006),
United States v. Donovan, 661 F.3d 174, 182–83 (3d Cir. 2011), United
States v. Gerke Excavating, Inc., 464 F.3d 723, 724–25 (7th Cir. 2006),
and United States v. Bailey, 571 F.3d 791, 799 (8th Cir. 2009) with United

Case: 09-99022

22

03/05/2014

ID: 9002200

DktEntry: 50-1

CLABOURNE V. RYAN

this approach, we “look to the votes of dissenting [judges] if
they, combined with votes from plurality or concurring
opinions, establish a majority view on the relevant issue.”
United States v. Donovan, 661 F.3d 174, 182 (3rd Cir. 2011);
see also United States v. Johnson, 467 F.3d 56, 62–66 (1st
Cir. 2006); United States v. Gerke Excavating, Inc., 464 F.3d
723, 724–25 (7th Cir. 2006); United States v. Bailey,
571 F.3d 791, 799 (8th Cir. 2009).
First, where it is necessary to consider whether a
procedural default should be excused under Martinez in a
case where the district court’s holding that there had been a
procedural default preceded Martinez, and the result is
uncertain, we should remand the matter to the district court to
let it to conduct such a review in the first instance, if the
result is uncertain. Detrich, 2013 WL 4712729, at *9 (W.
Fletcher, J., plurality) (“[O]ur general assumption is that we
operate more effectively as a reviewing court than as a court
of first instance. We see no reason why . . . a Martinez case
should be treated differently[.]”); id. at *23 (Nguyen, J.,
concurring) (“the district court is best situated to apply
Martinez in the first instance”); id.(Watford, J., concurring)
(“we should grant petitioner’s motion to remand the case to
the district court, so that the district court can determine in
the first instance whether petitioner’s procedural default may
be excused under Martinez”). The dissent, joined by five
judges, disagreed, see id. at *27 (Graber, J., dissenting), but
the majority voted to remand, and that was the ultimate
holding of the case.

States v. Robison, 505 F.3d 1208, 1221 (11th Cir. 2007), and King v.
Palmer, 950 F.2d 771, 783 (D.C. Cir. 1991) (en banc).

Page: 22 of 38

Case: 09-99022

03/05/2014

ID: 9002200

CLABOURNE V. RYAN

DktEntry: 50-1

Page: 23 of 38

23

Second, to demonstrate “cause” – the first part of the
showing of “cause and prejudice” required in order to excuse
a procedural default under Coleman – the petitioner must
show that his post-conviction relief counsel was ineffective
under Strickland v. Washington, 466 U.S. 668 (1984); see
Detrich, 2013 WL 4712729, at *26 (Graber, J., dissenting)
(“A meritorious Strickland claim requires a showing of both
deficient performance and prejudice.”) (emphasis in original);
id. at *23 (Nguyen, J., concurring) (“I agree with the dissent
inasmuch as it would require the usual Strickland prejudice
showing to overcome the procedural default.”). A majority of
the panel thus explicitly rejected the view expressed in Judge
Fletcher’s plurality opinion that “a prisoner need show only
that his PCR [post-conviction relief] counsel performed in a
deficient manner” and “need not show actual prejudice
resulting from his PCR counsel’s deficient performance, over
and above his required showing that the trial-counsel IAC
[ineffective assistance of counsel] claim be ‘substantial’
under the first Martinez requirement.” Id. at *6 (W. Fletcher,
J., plurality).4
Third, “prejudice” for purposes of the Coleman “cause
and prejudice” analysis in the Martinez context requires only
a showing that the trial-level ineffective assistance of counsel
claim was “substantial.” Nine of the eleven judges reached
that conclusion. Those nine judges were the four judges
joining the relevant part of Judge Fletcher’s plurality opinion
plus the five judges joining Judge Graber’s dissent). Id. at *6
(W. Fletcher, J., plurality) (“A prisoner need not show actual
prejudice resulting from his PCR counsel’s deficient

4

Judge Watford’s separate opinion did not express a view as to this
issue. That opinion commented only on the need to remand to the district
court for further proceedings.

Case: 09-99022

03/05/2014

24

ID: 9002200

DktEntry: 50-1

CLABOURNE V. RYAN

performance, over and above his required showing that the
trial-counsel IAC claim be ‘substantial’ under the first
Martinez requirement.”); id. at *26 (Graber, J., dissenting)
(“Under Martinez, a court may excuse the procedural default
of an IAC claim in cases like this one if the petitioner
establishes both (1) cause, . . . ; and (2) prejudice, by showing
that the underlying claim of trial counsel’s ineffectiveness is
‘substantial,’ meaning that it has ‘some merit.’” (quoting
Martinez v. Ryan, 132 S.Ct. 1309, 1318)). Only Judge
Nguyen took the opposite position. Id. at *23 (Nguyen, J.,
concurring) (“I also disagree with the dissent to the extent it
wrongly reads Martinez as modifying Coleman's prejudice
prong.”).5
To demonstrate cause and prejudice sufficient to excuse
the procedural default, therefore, Martinez and Detrich
require that Clabourne make two showings. First, to establish
“cause,” he must establish that his counsel in the state postconviction proceeding was ineffective under the standards of
Strickland. Strickland, in turn, requires him to establish that
both (a) post-conviction counsel’s performance was deficient,
and (b) there was a reasonable probability that, absent the
deficient performance, the result of the post-conviction
proceedings would have been different. See Strickland,
466 U.S. at 687, 694. Second, to establish “prejudice,” he
must establish that his “underlying ineffective-assistance-oftrial-counsel claim is a substantial one, which is to say that
the prisoner must demonstrate that the claim has some merit.”
Martinez, 132 S.Ct. at 1318.

5

Judge Watford’s separate opinion did not express a view as to this
conclusion, either.

Page: 24 of 38

Case: 09-99022

03/05/2014

ID: 9002200

CLABOURNE V. RYAN

DktEntry: 50-1

Page: 25 of 38

25

There is, to be sure, overlap between the two
requirements. Within the “cause” prong there is an element of
“prejudice” that must be established: to show ineffective
assistance of post-conviction relief counsel, a petitioner must
establish a reasonable probability that the result of the postconviction proceeding would have been different. The
reasonable probability that the result of the post-conviction
proceedings would have been different, absent deficient
performance by post-conviction counsel, is necessarily
connected to the strength of the argument that trial counsel’s
assistance was ineffective. The prejudice at issue is prejudice
at the post-conviction relief level, but if the claim of
ineffective assistance of trial counsel is implausible, then
there could not be a reasonable probability that the result of
post-conviction proceedings would have been different.
Put in terms of the conclusions drawn from Detrich, the
third conclusion – “prejudice” for purposes of the “cause and
prejudice” analysis requires only a showing that the trial-level
ineffective assistance of counsel claim was “substantial” –
does not diminish the requirement of the second conclusion
that petitioner satisfy the “prejudice” prong under Strickland
in establishing ineffective assistance by post-conviction
counsel. To demonstrate that there was a reasonable
probability that, absent the deficient performance, the result
of the post-conviction proceedings would have been different,
it will generally be necessary to look through to what
happened at the trial stage. Both Judge Fletcher’s plurality
opinion and Judge Graber’s dissent did so in Detrich,
discussing the evidence that was or could have been
submitted at trial at some length. See Detrich, 2013 WL
47122739, at *16 (W. Fletcher, J., plurality) (“we feel
compelled, given the dissent, to show that some of Detrich’s
trial-counsel IAC claims are sufficiently plausible to warrant

Case: 09-99022

26

03/05/2014

ID: 9002200

DktEntry: 50-1

CLABOURNE V. RYAN

remanding to the district court”); id. at *29 (Graber, J.,
dissenting) (“none of [the trial-counsel errors] establishes
prejudice, which requires that ‘[t]he defendant . . . show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the [trial] would have been
different.’” (quoting Strickland, 466 U.S. at 694)).
2. Cause in Clabourne’s Case
There is no dispute in this case about the deficient
performance of Clabourne’s post-conviction counsel, as the
State concedes that his representation was deficient.
Clabourne’s post-conviction counsel, who had no experience
with Arizona post-conviction proceedings, filed several postconviction petitions in state court that failed to comply with
Arizona’s procedural rules. After admonishing the lawyer to
comply with the rules and assert valid claims, the Arizona
post-conviction court denied all claims with prejudice for his
failure to comply. On appeal from that denial by the trial
level court, post-conviction counsel abandoned almost all
claims, including the two Strickland claims arising from
Clabourne’s resentencing. Strickland’s first prong, as applied
to Clabourne’s post-conviction counsel, is satisfied.
Strickland’s second prong requires consideration of
whether Clabourne can establish that he was prejudiced by
post-conviction counsel’s failure to exhaust either of the two
claims of ineffective assistance of counsel at resentencing, the
confession-based claim or the mitigation-based claim. Under
Strickland, Clabourne must show that, but for post-conviction
counsel’s failure to raise those claims, there is a reasonable
probability that the result of the post-conviction proceeding
would have been different. Strickland, 466 U.S. at 694.

Page: 26 of 38

Case: 09-99022

03/05/2014

ID: 9002200

CLABOURNE V. RYAN

DktEntry: 50-1

Page: 27 of 38

27

We address each claim individually. We conclude that
there is sufficient strength to Clabourne’s confession-based
claim to warrant remanding that claim to the district court,
but that the mitigation-based claim is without merit and does
not warrant further consideration.
a. Confession-based claim
Clabourne contends that, but for the deficient
performance of his state post-conviction counsel in failing to
raise the confession-based ineffectiveness claim, there was a
reasonable probability that he would have succeeded on his
state petition for post-conviction relief. As a result, he argues
that his post-conviction counsel’s deficient performance
satisfies the second prong of Strickland.
The argument Clabourne contends his post-conviction
counsel should have pursued is that Clabourne received
ineffective assistance of counsel at resentencing because his
attorney at that stage failed to object to the admission of his
confession, which was obtained by detectives while he was in
custody and after he had invoked his right to counsel. He
argues that the admission of the confession was prejudicial
because there was little other evidence, absent the confession,
to support the aggravating factor that rendered him eligible
for the death penalty. There may be merit to this argument.
In Arizona v. Roberson, 486 U.S. 675 at 677–78, 682–83
(1988), the Supreme Court held that a suspect’s refusal to
answer questions without presence of counsel precluded
questioning related to any offense, not just the particular
offense for which the suspect invoked his right to counsel.
Roberson was an extension of the Court’s holding in Miranda
v. Arizona, 384 U.S. 436 (1966), that once a suspect indicates

Case: 09-99022

28

03/05/2014

ID: 9002200

DktEntry: 50-1

CLABOURNE V. RYAN

that he wishes to remain silent, his exercise of the Fifth
Amendment privilege must be respected and questioning may
not continue. In Edwards v. Arizona, 451 U.S. 477, 484–85
(1981), the Court applied Miranda to a suspect’s invocation
of his right to counsel, holding that when a suspect has
invoked his right to have counsel present during custodial
interrogation, he cannot be subject to further interrogation.
Edwards left unanswered the question whether a suspect who
invoked his right to counsel after being taken into custody for
one crime could be questioned about other crimes for which
he had not invoked that right. That was the state of the law at
the time of Clabourne’s original trial. Later, Roberson
answered that question, holding that such a suspect could not
be questioned about other crimes. 486 U.S. at 684–85.
Because an individual’s Fifth Amendment right is not offense
specific, Roberson held, a suspect’s request for counsel
applies to any questions the police want to ask. Id.
The statement given by Clabourne regarding the murder
fits that pattern. Law enforcement obtained Clabourne’s
confession after he had been taken into custody on unrelated
burglary charges and after he had invoked his right to have
counsel present. Clabourne filed and served on the county
attorney’s office a written declaration that he was invoking
his right to remain silent and that he would not waive his right
to the presence of an attorney except through a written waiver
that would also be signed by his attorney. Thereafter,
detectives received a tip that Clabourne was involved in the
murder and went to the Pima County Jail to interview him.
There was no written waiver by Clabourne, and detectives did
not inform Clabourne’s attorney about the interview.
Nonetheless, detectives interrogated Clabourne, without his
attorney present, and during that interrogation he gave the
statement that is the subject of this claim, a statement in

Page: 28 of 38

Case: 09-99022

03/05/2014

ID: 9002200

CLABOURNE V. RYAN

DktEntry: 50-1

Page: 29 of 38

29

which he described in detail the kidnapping, rape, and
murder.
The State does not dispute that Clabourne would benefit
from Roberson if that decision applied but argues that it did
not apply to him. Roberson was decided in 1988, after police
obtained Clabourne’s confession, and after his original trial
in 1982. His confession was admitted without error at his trial
based on the law as it then stood. Roberson does not apply
retroactively to cases on collateral review. Butler v.
McKellar, 494 U.S. 407, 415–16 (1990); see Clabourne,
64 F.3d at 1379 (noting that Roberson did not apply
retroactively on collateral review). The State argues,
therefore, that the confession could properly be admitted
against Clabourne at his resentencing. We disagree.
The resentencing occurred in 1997. The State
acknowledges that Clabourne’s statement to the police would
not have been admissible against him under the law as it
stood in 1997. That the statement might have been admissible
at the time of the original trial in 1982 did not make it
properly admissible at the resentencing trial in 1997.
A constitutional error occurs, if at all, when a confession
is admitted into evidence. See United States v. VerdugoUrquidez, 494 U.S. 259, 264 (1990) (citing Kastigar v.
United States, 406 U.S. 441, 453 (1972)). After Roberson,
Clabourne’s confession could not be used against him without
violating the Fifth Amendment. Roberson, 486 U.S. at
682–83. If a full retrial of Clabourne had been ordered, it
would have been required to comply with the then-current
constitutional standards. A retrial is not a collateral
proceeding.

Case: 09-99022

30

03/05/2014

ID: 9002200

DktEntry: 50-1

CLABOURNE V. RYAN

A resentencing is not a collateral proceeding, either. See
Magwood v. Patterson, 130 S.Ct. 2788, 2791–92 (2010)
(holding that after a federal court grants a writ of habeas
corpus as to a petitioner’s sentence, any resentencing is an
entirely “new judgment”). Constitutional protections apply at
the penalty phase just as they do at the guilt phase. See Estelle
v. Smith, 451 U.S. 454, 462–63 (1981) (holding that there is
“no basis to distinguish between the guilt and penalty phases
of [a defendant’s] capital murder trial so far as the protection
of the Fifth Amendment privilege is concerned”).
It does not matter that the legal standards might have
changed subsequent to the original trial. The proper
admission of evidence based on the law as it stood at the time
of trial does not mean that the admission of that evidence is
invulnerable to any future challenge. It has been held for
centuries, for example, that even if the law changed following
a trial, “‘[t]he general rule . . . is that an appellate court must
apply the law in effect at the time it renders its decision.’”
Henderson v. United States, 133 S.Ct. 1121, 1126 (2013)
(alteration in original) (quoting Thorpe v. Housing Authority
of Durham, 393 U.S. 268, 281 (1969), and citing United
States v. Schooner Peggy, 1 Cranch 103, 110 (1801)). That
the trial court may not have ruled improperly when it
admitted Clabourne’s statement into evidence in 1982 does
not mean that the same evidence was necessarily admissible
in 1997. By 1997 it was established that the admission of
Clabourne’s statement violated his rights under the Fifth
Amendment.
The State offers a related argument that is no more
persuasive. It argues that an Arizona statute, Ariz. Rev. Stat.
§ 13-703(C), required the court at the penalty phase, in this
case the resentencing phase, to consider all evidence admitted

Page: 30 of 38

Case: 09-99022

03/05/2014

ID: 9002200

CLABOURNE V. RYAN

DktEntry: 50-1

Page: 31 of 38

31

during the guilt phase. Clabourne’s statement was admitted
during the guilt phase of his trial in 1982, so the State argues
that the resentencing court was obligated to consider it. But
such a state law does not trump federal constitutional
protections or the exclusion of evidence required to enforce
those protections. Whatever a state might provide in its own
statutes, no court can consider evidence that must be excluded
under the federal constitution. Under Roberson, Clabourne’s
confession could not properly be used against him at his
resentencing in 1997.
That there was a basis to object to the use of Clabourne’s
statement at resentencing (or to move to suppress it) does not
by itself establish that Clabourne suffered from ineffective
assistance through resentencing counsel’s failure to make that
objection. Addressing this claim requires assessing
resentencing counsel’s performance under both prongs of
Strickland: (a) whether the failure to object to admission of
that confession amounted to deficient performance, and (b)
whether there was a reasonable probability that Clabourne
would have received a lesser sentence but for resentencing
counsel’s failure to object to admission of the confession.6
6
At this stage of review, the second-prong prejudice inquiry is
technically whether there is a reasonable probability that, had PCR
counsel raised the confession claim, the state PCR court would have
concluded that the Strickland prejudice standard was met regarding the
alleged ineffective assistance of trial counsel at resentencing. But in
practical terms, at least in this case, that amounts to the federal habeas
court trying to answer itself the same question that would have been put
to the PCR court: whether a different outcome at resentencing by the trial
court was reasonably probable, absent deficient performance by
resentencing counsel. Here, the information needed to assess this issue is
entirely ascertainable from the trial court record. The federal court sitting
in habeas need only review the same trial court record that the state PCR
court would have reviewed. There is no actual decision by the state PCR

Case: 09-99022

32

03/05/2014

ID: 9002200

DktEntry: 50-1

CLABOURNE V. RYAN

No court has yet evaluated whether the failure to object to
the admission of the confession at the resentencing hearing in
1997 constituted ineffective assistance of counsel under
Strickland. The district court did not have reason, prior to
Martinez, to analyze Clabourne’s confession-based
ineffectiveness claim, as it appeared to have been defaulted.
The answer to this question is not obvious to us on appeal.
As to prejudice, for example, the evidence is mixed. We note
that Clabourne’s statement to the police included a detailed
description about beating the victim, raping, strangling, and
then stabbing her. The Arizona Supreme Court relied, at least
in part, on that statement in its aggravation discussion. The
court’s decision specifically noted, for example, that the
victim was forced to undress and serve the men drinks. Az
Clabourne, 983 P.2d at 753. This fact was found nowhere
else in the record. Other facts identified in the Arizona
Supreme Court’s discussion of the aggravating circumstances
were supported by other evidence in the record. Multiple
witnesses testified concerning incriminating statements made
by Clabourne, including that the victim had been raped and
that she had begged for help. Based on the autopsy she
performed on the victim, the medical examiner testified at
trial about the beating and sexual activity that the victim

court, due to the deficient performance by counsel. There is no logical
basis for us to conclude that the federal habeas court and the state PCR
court would reach different conclusions in answering the same question.
Under these circumstances, the two inquiries, in effect, collapse into one,
and our inquiry into the reasonably probable conclusion of the PCR
court’s inquiry into the reasonably probable conclusion of resentencing in
the trial court is better treated as a single question. That question is
whether there was a reasonable probability that Clabourne would have
received a lesser sentence but for resentencing counsel’s failure to object
to admission of the confession.

Page: 32 of 38

Case: 09-99022

03/05/2014

ID: 9002200

CLABOURNE V. RYAN

DktEntry: 50-1

Page: 33 of 38

33

suffered before her death, as well as the strangling and
stabbing. It is not clear to us that a death sentence would have
been imposed at resentencing (and affirmed by the Arizona
Supreme Court on appeal) based on the evidence without
Clabourne’s confession.
Put in terms of Strickland’s second prong, we are not sure
whether there was a reasonable probability that the exclusion
of Clabourne’s statement would have made a difference at
resentencing. That means, put in terms of Martinez’s second
prong, we are not sure that the underlying claim is substantial.
We thus follow our holding in Detrich and remand to the
district court for it to consider in the first instance whether the
previous default of Clabourne’s confession-based claims can
be excused under Martinez.
On remand, the district court must determine whether
Clabourne has demonstrated cause and prejudice sufficient to
excuse the procedural default. As outlined above, supra p. 24,
that requires Clabourne to make two showings. First, to
establish “cause,” he must establish that his counsel in the
state post-conviction proceeding was ineffective under
Strickland by establishing both (a) that post-conviction
counsel’s performance was deficient, and (b) that there was
a reasonable probability that, absent the deficient
performance, the result of the post-conviction proceedings
would have been different. The State concedes the first prong
has been met, so the focus of the district court’s review
should be on the prejudice prong. Determining whether the
result of the post-conviction proceedings would have been
different will require consideration of the underlying claim of
ineffective assistance by resentencing counsel and the
questions of (a) whether resentencing counsel performed
deficiently, and (b) whether there was a reasonable

Case: 09-99022

34

03/05/2014

ID: 9002200

DktEntry: 50-1

CLABOURNE V. RYAN

probability that, absent deficient performance at resentencing,
the result of the resentencing proceedings would have been
different.
If the district court concludes that Clabourne has
established “cause” to excuse the procedural default, then it
should move to the question of whether he suffered
“prejudice” as a result. In that context, though, the answer
would be obvious. As outlined, supra p. 24, to meet the
“prejudice” requirement to excuse a procedural default, it is
only necessary for Clabourne to establish that his “underlying
ineffective-assistance-of-trial-counsel claim is a substantial
one, which is to say that the prisoner must demonstrate that
the claim has some merit.” Martinez, 132 S.Ct. at 1318.
Under the circumstances of this case, if he succeeds in
demonstrating that he was prejudiced by the failure of his
post-conviction counsel, he will necessarily have established
that there is at least “some merit” to his claim that he suffered
ineffective assistance of trial counsel at resentencing.
If the district court concludes that Clabourne has
established cause and prejudice sufficient to excuse the
procedural default of the confession-based claim, it should
proceed to adjudicate that claim on the merits.
b. Mitigation-based claim
Clabourne also argues that he received ineffective
assistance of counsel at resentencing because his resentencing
counsel failed to obtain additional mental health evaluations
in support of mitigation prior to his resentencing. The district
court dismissed the claim because it was procedurally
defaulted. Though Martinez now opens a new path to
excusing the procedural default, we address the mitigation-

Page: 34 of 38

Case: 09-99022

03/05/2014

ID: 9002200

DktEntry: 50-1

CLABOURNE V. RYAN

Page: 35 of 38

35

based claim ourselves here because it is clear that the claim
fails. See Sexton v. Cozner, 679 F.3d 1150, 1159 (9th Cir.
2012) (denying relief under Martinez on the record before it
because the record regarding trial counsel’s performance
established that the underlying ineffective-assistance claim
failed).
Clabourne presents no argument as to how resentencing
counsel’s representation with regard to Clabourne’s
mitigating mental health satisfies either prong of Strickland.
The history of the case makes evident the flaws in this claim.
Our court previously granted habeas relief to Clabourne
because he received ineffective assistance of counsel at his
original capital sentencing. Clabourne, 64 F.3d at 1384. We
held that counsel was ineffective at the original capital
sentencing on three grounds related to mitigation:
(1) counsel called no witnesses in support of
a sentence less than death;
(2) counsel introduced no evidence of
Clabourne’s history of mental illness; and
(3) counsel failed to provide any mental
health expert with health records
sufficient to develop an accurate
psychological profile of Clabourne.
Id. at 1384–85. We held that Clabourne was prejudiced by
this deficient performance, in part, because of the additional
mitigating evidence that was available at Clabourne’s original
sentencing and ultimately presented by Clabourne’s federal

Case: 09-99022

36

03/05/2014

ID: 9002200

DktEntry: 50-1

CLABOURNE V. RYAN

habeas counsel to the federal district court in support of his
habeas petition. Id. at 1384–86.
Clabourne’s federal habeas counsel was his resentencing
counsel. Before the federal district court on habeas review,
Clabourne’s counsel:
(1) called several witnesses to provide
testimony in support of mitigation;
(2) introduced Clabourne’s full mental health
records; and
(3) provided three expert witnesses with
Clabourne’s full medical records, from
which all three concluded that Clabourne
suffered from mental illness.
At the evidentiary hearing, three experts testified to
Clabourne’s psychological disorders in support of mitigation.
See id. at 1385–86 (comparing the doctors’ testimony).
Unlike counsel at the original trial, resentencing counsel
developed and submitted an extensive record in support of
mitigation. Counsel submitted to the resentencing court the
entire record developed before the district court, including the
expert testimony. There is no reason to believe that additional
evaluation would have yielded more favorable testimony, and
Clabourne has not established that it would have.
When state post-conviction counsel raised the claim
regarding Clabourne’s lack of additional mental health
examinations, albeit deficiently under Arizona procedural
rules, the Arizona post-conviction court alternatively

Page: 36 of 38

Case: 09-99022

03/05/2014

ID: 9002200

CLABOURNE V. RYAN

DktEntry: 50-1

Page: 37 of 38

37

addressed the merits and held that resentencing counsel’s
representation did not fall below prevailing professional
norms and that Clabourne failed to establish prejudice
because he offered no mitigating evidence that an additional
mental examination might have revealed. AEDPA deference
applies to this alternative holding on the merits. See Stephens
v. Branker, 570 F.3d 198, 208 (4th Cir. 2009); Brooks v.
Bagley, 513 F.3d 618, 624–25 (6th Cir. 2008); cf. Johnson v.
Williams, 133 S.Ct. 1088, 1097–98 (2013) (applying AEDPA
deference to federal claim rejected by state court despite state
court’s failure to expressly dismiss claim on the merits).
The record provides no support for Clabourne’s claim that
he received ineffective assistance of counsel at resentencing
based on a failure to obtain additional psychological
examinations. The Arizona court’s decision was not contrary
to, nor an unreasonable application of federal law.
Accordingly, we affirm the district court’s denial of
Clabourne’s petition for a writ of habeas corpus on this claim.
III.

Conclusion

We vacate the district court’s denial of the claim that
Clabourne received ineffective assistance of counsel at
resentencing based on counsel’s failure to object to the
admission of his confession to the police. We remand in order
to give the district court an opportunity to revisit the

Case: 09-99022

03/05/2014

38

ID: 9002200

DktEntry: 50-1

CLABOURNE V. RYAN

procedural default issue anew in light of Martinez. We affirm
the district court’s denial of Clabourne’s petition on all other
grounds.7
AFFIRMED in part, VACATED in part, and
REMANDED.

7

Clabourne also raises several other issues that have not been certified
for appeal by the district court and for which we decline to issue a
certificate of appealability. Those issues are as follows: whether the
resentencing court impermissibly failed to consider the disparate sentences
of Clabourne’s co-defendants as a mitigating factor; whether the
resentencing court acted with bias in imposing his capital sentence;
whether the resentencing court impermissibly considered victim impact
statements; whether Arizona’s aggravating factor statute is
unconstitutionally vague; and whether the resentencing court acted
vindictively. After ordering the parties to submit supplemental briefing on
most of the uncertified issues, we applied the certificate of appealability
standard articulated in Miller-El v. Cockrell, 537 U.S. 322 (2003), to all
of the uncertified claims. Miller-El requires a petitioner to demonstrate
“that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Id. at 338 (internal quotations
and citation omitted). We agree with the district court’s determination that
these uncertified claims do not meet this standard. See Bible v. Ryan,
571 F.3d 860, 872 n.5 (2009).

Page: 38 of 38