Chad Lee v. Ryan Thornell

Opinion

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT SEP 30 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS CHAD ALAN LEE, No. 09-99002

Petitioner-Appellant, D.C. No. 2:01-CV-02178-EHC District of Arizona, v. Phoenix

RYAN THORNELL, ORDER

Respondent-Appellee.

Before: CALLAHAN, NGUYEN, and BRESS, Circuit Judges.

The opinion filed on June 11, 2024, and appearing at 104 F.4th 120 is

amended as follows. At Slip Op. page 33, line 18 [104 F.4th at 138], remove “see

also Jones, 2024 WL 2751215, at *9 (noting that the Arizona Supreme Court has

apparently never ‘vacated the judgment of death in a case involving multiple

murders—let alone a case involving all of the aggravating circumstances present

here’).”

With this amendment, the panel unanimously voted to deny the petition for

panel rehearing and rehearing en banc. The full court has been advised of the

petition for rehearing en banc, and no judge has requested a vote on whether to rehear

the matter en banc. Fed. R. App. P. 35. The petition for rehearing, Dkt. No. 160, is

DENIED. No further petitions for rehearing will be entertained. FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 30 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CHAD ALAN LEE, No. 09-99002

Petitioner-Appellant, D.C. No. 2:01-CV-02178-EHC

v. OPINION RYAN THORNELL,

Appeal from the United States District Court for the District of Arizona Earl H. Carroll, District Judge, Presiding

Argued and Submitted November 14, 2023 San Francisco, California

Before: Consuelo M. Callahan, Jacqueline H. Nguyen, and Daniel A. Bress, Circuit Judges.

Opinion by Judge Bress

BRESS, Circuit Judge:

In April 1992, Chad Lee killed three people in three weeks. He was sentenced

to death for each murder. The Arizona Supreme Court affirmed Lee’s convictions

and sentence on direct appeal and denied his petitions for state postconviction relief.

Lee then sought federal habeas relief under 28 U.S.C. § 2254, which the district court

denied. We affirm. I

A

We describe the facts of Lee’s offenses, drawing largely from the Arizona

Supreme Court’s decisions on direct appeal. State v. Lee, 944 P.2d 1204, 1209 (Ariz.

1997) (Lee I); State v. Lee, 944 P.2d 1222, 1226 (Ariz. 1997) (Lee II).

On April 6, 1992, Lee, then 19 years old, and his accomplice, David Hunt,

age 14, called Pizza Hut from a pay phone and ordered a pizza delivered to a vacant

house. When Linda Reynolds arrived with the pizza, Lee and Hunt pointed a rifle

at her and forced her to remove her shorts and shirt. The two put Reynolds in Lee’s

car, and Lee drove her into the desert. Hunt drove Reynolds’s car to meet them.

Once in the desert, Lee and Hunt removed Reynolds’s car stereo, smashed the

windows and other parts of her car with a bat, punctured the tires, cut various hoses

and wires to disable the engine, and shot a bullet through the hood. Lee later testified

that he destroyed Reynolds’s car to prevent her from escaping.

Lee and Hunt forced Reynolds to remove her shoes, socks, and pantyhose and

to walk barefoot into the desert. Hunt then raped her, and Lee forced Reyolds to

perform oral sex on him. After finding Reynolds’s bank card in her wallet, Lee

drove Reynolds and Hunt to an ATM. Lee gave Reynolds his flannel shirt to wear

and then forced Reynolds to withdraw $20 of the $27 she had left in her account.

From there, Lee and Hunt drove Reynolds back into the desert. Reynolds tried

2 to escape, but Hunt forced her back to the car. By the time she was returned to the

car, her face and lips were bloody. According to Lee, Lee and Hunt argued in front

of Reynolds over whether to kill her, and Reynolds “freaked” and tried to grab the

gun.

Lee shot Reynolds once in the head. But Reynolds was still alive. Lee

retrieved a knife from his car and twice stabbed Reynolds in the chest to “put her out

of her misery.” Lee and Hunt then drove away. Medical evidence indicated that

Reynolds “would have been alive for at least a couple minutes, and probably more,”

following the stabbings. The next day, Lee pawned Reynolds’s car stereo, wedding

ring, and gold ring for a total of $170.

Ten days later, on April 16, 1992 around midnight, Lee used another

payphone to call a taxi. David Lacey was dispatched to pick up Lee. Meanwhile,

Hunt drove Lee’s car to the location where Lee and Hunt planned to rob the driver.

When Lacey arrived, Lee pulled out a revolver and demanded money. According to

Lee, Lacey attempted to grab the gun. Lee then fired nine shots, four of which hit

Lacey. Lee took “forty dollars from Lacey’s pockets and dumped his body by the

side of the road.” Lee then drove Lacey’s cab to a dirt road, where he searched the

cab’s contents and shot its windows and tires.

On April 27, 1992, Lee entered a convenience store around 1:00 a.m. to

purchase cigarettes. When Harold Drury, the store clerk, opened the cash drawer,

3 Lee shot Drury in the shoulder, causing Drury to fall backwards. Lee then “shot

Drury in the top of the head, the forehead, the cheek, and the neck.” After Drury

slumped to the floor, Lee “walked around the counter and shot Drury two more times

in the right temple.” Lee retrieved the cigarettes and took the cash drawer before

leaving the store. Hunt was waiting in Lee’s car, and they left together.

B

Not long after, in May 1992, police apprehended Lee and Hunt after various

pieces of physical evidence connected them to the murders. Lee I, 944 P.2d at 1210.

As to Linda Reynolds, Lee was indicted for first-degree murder, kidnapping, two

counts of sexual assault, armed robbery, and theft. Id. at 1211. Lee was also indicted

for the first-degree murders and armed robberies of David Lacey and Harold Drury.

Id. Lee was tried in the Superior Court of Maricopa County in 1994. The trial court

severed the counts involving Reynolds and Lacey (Lee I) from the counts involving

Drury (Lee II). Lee II, 944 P.2d at 1226.

To prepare for a possible capital sentencing, Lee’s trial counsel, Alan

Simpson, applied for funds to hire Dr. Mickey McMahon, a clinical psychologist.

When doing so, Simpson flagged Lee’s deprived childhood and evidence of Lee’s

psychological and cognitive defects. Simpson specifically noted that Lee’s sister’s

“strongest memory of her mother was sitting in a chair, a beer and cigarette in one

hand, a book in another.”

4 Simpson did other work to investigate mitigating circumstances, as well.

Simpson obtained Lee’s school records, which indicated that at the time Lee dropped

out in the ninth grade, he had a cumulative GPA of 1.20. Based on “[p]reliminary

discussions with Dr. McMahon,” Simpson “believe[d] that [Lee’s] background

contributed to the development of . . . recognized psychological and cognitive

defects over which [Lee] had no control.” A letter written to Simpson by his

investigator, Ed Aitken, indicates that both Simpson and Aitken suspected early on

that Lee may have suffered from “alcohol syndrome.” As we discuss in greater detail

below, however, Dr. McMahon did not believe that Lee suffered from such a

syndrome.

In the Lee I trial, Lee was convicted of all charged offenses, including two

counts of first-degree murder for the killings of Reynolds and Lacey. 944 P.2d at

1211. During sentencing proceedings, Dr. McMahon provided extensive testimony

to establish a mitigating portrait of Lee based on his troubled family background,

“follower” personality, age, and mental shortcomings.

Dr. McMahon described the parental abandonment that Lee suffered during

his early childhood and its severe consequences for Lee’s adolescent development.

Dr. McMahon also testified that Lee suffered from attention deficit disorder. To

demonstrate that Lee was “a dependent kind of person” and “submissive,” Dr.

McMahon testified about the results of a personality test that he administered to Lee,

5 indicating that on a scale of 1.0 (non-leader) to 10.0 (leader), Lee scored a 1.1.

According to Dr. McMahon, Lee experienced “times when his ability to perceive

reality is significantly compromised.” As a result, Lee would sometimes “not

appreciate the total impact of the situation he is in and how it affects him and the

people around him.”

In Lee I, the trial court sentenced Lee to consecutive, aggravated terms of

imprisonment totaling 101 years for the noncapital convictions. Lee I, 944 P.2d at

1211. For each of the murders, and operating pre-Ring v. Arizona, 536 U.S. 584

(2002), the court sentenced Lee to death. Id. The trial court found the following

aggravating circumstances for both death sentences: previous death-eligible

conviction, previous violent felony, and pecuniary gain. Id. In addition, the court

found that the Reynolds murder was especially cruel, heinous, and depraved. Id. As

mitigating factors, the trial court acknowledged “defendant’s age, lack of significant

prior criminal history, deprived childhood, cooperation with law enforcement

officials and assistance in recovery of weapons, and remorse.” Id.

In the Lee II trial, a unanimous jury found Lee guilty of felony murder and

premeditated murder. Lee II, 944 P.2d at 1226. After considering the same

mitigating evidence presented in Lee I, the trial court sentenced Lee to death for the

murder and a consecutive 21-year term for the armed robbery. Id. The court found

four statutory aggravating circumstances for the death sentence: previous death-

6 eligible convictions for the Reynolds and Lacey murders, previous violent felonies,

pecuniary gain, and offense committed in an especially cruel, heinous, or depraved

manner. Id. at 1227. The trial court found Lee’s “age, lack of significant prior

criminal history, and deprived childhood to be mitigating circumstances.” Id.

The Arizona Supreme Court affirmed Lee’s convictions and sentences in two

separate opinions. Lee I, 944 P.2d 1204; Lee II, 944 P.2d 1222. The court

“independently reviewed and weighed the aggravating and mitigating

circumstances” related to each murder. Lee II, 944 P.2d at 1233–34; see also Lee I,

944 P.2d at 1221. As to the Drury murder, the court found that “the state proved the

following aggravation beyond a reasonable doubt: (a) previous death-eligible

conviction, (b) previous violent felony, (c) pecuniary gain, and (d) that the murder

was committed in an especially heinous and depraved manner.” Lee II, 944 P.2d at

1234. It also found that Lee “proved the following mitigation by a preponderance

of the evidence: (a) age, (b) lack of significant prior criminal history, and (c)

deprived childhood.” Id. As to the Reynolds murder, the Arizona Supreme Court

found the same aggravating and mitigating factors, with the additional mitigating

factors of “cooperation with law enforcement officials” and “remorse.” Lee I, 944

P.2d at 1211. The court found that all these aggravating and mitigating factors

applied to the Lacey murder, except that the Lacey murder was not depraved. Id. at

1220.

7 The U.S. Supreme Court denied Lee’s petition for certiorari in March 1998.

C

In Lee’s state postconviction proceedings, the Arizona Supreme Court

appointed attorney Jess Lorona to represent Lee. Lorona investigated Lee’s case in

preparation for filing Lee’s petition for state postconviction relief. Lorona contacted

Lee’s trial counsel, Simpson, and obtained documents from him. Lorona’s billing

records indicate that Lorona also contacted the attorneys who represented Lee on

direct appeal.

Lee wrote two letters to Lorona requesting status updates. Lorona responded

on March 8, 2000, and April 13, 2000. In the first letter, Lorona informed Lee that

Lorona had obtained an extension for filing the petition for postconviction relief and

noted that Lorona and his investigator had been interviewing witnesses and working

on the case. The second letter reiterated that Lorona and his investigator had been

interviewing witnesses, enclosing a copy of the filed petition for postconviction

relief, which Lorona had submitted on March 15, 2000.

Lorona dedicated most of the postconviction petition to arguing that Arizona’s

death penalty scheme was unconstitutional. Lorona also argued that the trial court

had erred in different respects, such as in not severing the trials for the Reynolds and

Lacey murders. Although Lorona did also assert five claims of ineffective assistance

of trial counsel, he did not raise the ineffective assistance claim at issue here, which

8 pertains to Simpson’s alleged failure to investigate and present mitigating evidence

of Fetal Alcohol Syndrome.

In response to Lorona’s petition, the State argued that the non-ineffective

assistance of trial counsel claims were precluded because they were either decided

on direct appeal or could have been raised at that time. As to the ineffective

assistance claims, the State maintained that Lee had “failed to raise any colorable

claims,” so the State “request[ed] that [Lee] be ordered to file an amended petition

within 30 days, in order to explain how his [ineffective assistance] allegations . . .

are colorable.” Lorona did not amend the petition or file a reply, despite filing a

motion for an extension of time.

The state trial court (the same judge who had presided over Lee’s trials and

sentenced him to death) denied Lee’s petition for postconviction relief. The court

agreed with the State that all the non-ineffective assistance claims were precluded

because they were either raised or could have been raised on direct appeal. As to

the ineffective assistance claims, the court found that none were colorable, on that

basis rejecting the State’s assertion that Lee should have filed an amended petition.

The court explained:

First, based on the Court’s observations in the pretrial stage, at trial, and finally at sentencing, Defendant received an excellent defense from a very competent and experienced attorney. Second, Defendant has not and cannot demonstrate prejudice. There is no need for an evidentiary hearing as to the allegations of ineffective assistance of trial counsel because Defendant cannot meet either of the two prongs set forth in

9 Strickland.

The court noted that Lee’s “counsel provided the Court with much evidence as to

Defendant’s deprived childhood and the Court considered it and counted it as a

mitigating factor. The Court didn’t have to have counsel ‘draw a line’ to show the

nexus, but that childhood could not overcome the aggravating factors found by the

Court in these homicides.”

In a second postconviction petition filed in September 2005, Lee argued that

the Arizona Supreme Court in Lee I improperly refused to consider Lee’s mitigating

evidence because it lacked a causal nexus to his crime. The state trial court rejected

this “successive Notice of Post-Conviction Relief,” finding that Arizona Rule of

Criminal Procedure 32.2(a) precluded Lee from pursuing a claim that “should have

been raised on direct appeal or in the first Rule 32 [postconviction] proceedings.”

The Arizona Supreme Court denied review. Lee also submitted a third petition for

postconviction relief in 2009, which was likewise denied.

D

On November 8, 2001, Lee filed two petitions for § 2254 relief in federal

court. The petitions were consolidated. On March 3, 2003, Lee filed his first

amended petition. Two claims are relevant here.

Claim 2. Claim 2 focused on the performance of Lee’s trial counsel, Simpson.

It alleged that Simpson “provided constitutionally ineffective assistance of counsel

10 by failing to investigate and prepare adequate and appropriate mitigation for the

sentencing phases of [Lee’s] two trials,” specifically by failing to pursue counsel’s

suspicion that Lee “might have had neurological damage as a result of prenatal

exposure to alcohol.” In February 2005, the district court dismissed Claim 2, finding

it procedurally defaulted because Lee had failed to raise this argument in state court.

Proposed Claim 26. In July 2006, Lee sought to add to his § 2254 petition a

proposed Claim 26, in which he asserted that the Arizona Supreme Court

unconstitutionally required him to establish a causal nexus between his crimes and

his mitigating evidence, in violation of Tennard v. Dretke, 542 U.S. 274 (2004). In

November 2006, the district court denied the motion to amend because “add[ing]

this claim would be futile because it is time barred, procedurally barred, and without

merit.”

In 2009, Lee appealed the denial of § 2254 relief. Shortly after appellate

briefing was completed, the Supreme Court decided Martinez v. Ryan, 566 U.S. 1

(2012). In Martinez, the Court held that “[i]nadequate assistance of counsel at

initial-review collateral proceedings may establish cause for a prisoner’s procedural

default of a claim of ineffective assistance at trial.” Id. at 9. This court then granted

Lee’s motion for a limited remand to permit the district court to reconsider its denial

of Claim 2 and other claims in light of Martinez.

In his remand briefing in the district court, Lee supported Claim 2 with new

11 evidence, including declarations from additional experts. These medical

professionals discussed the evidence of Lee’s alleged Fetal Alcohol Syndrome and

Fetal Alcohol Effect—resulting from Lee’s in utero exposure to alcohol—and the

impact on Lee’s brain development and maturity. Lee also included declarations

from friends and family members about his difficult childhood.

The district court again denied all claims, including Claim 2. The court found

that Simpson’s performance was not deficient, and that even if it was, Lee was not

prejudiced, meaning that Lee had not excused his procedural default. The court

found that any evidence of fetal alcohol-related brain damage would not have

affected Lee’s sentence because of (1) Lee’s “lead role in the murders and

robberies”; (2) the strength of the aggravating factors; and (3) the state trial court’s

acceptance of other mitigating circumstances. The district court also denied Lee’s

requests for depositions of Simpson and Lorona and for an evidentiary hearing

because it found the underlying claim to lack merit. The district court granted a

certificate of appealability on Claim 2. It later admitted additional materials that Lee

proffered into the record.

E

In August 2019, we expanded the certificate of appealability to include the

question of whether the district court erred in denying leave for Lee to add his

Proposed Claim 26, the causal nexus claim. We also ordered replacement briefs to

12 be filed. In May 2021, we issued an order holding the case in abeyance pending

Shinn v. Ramirez, 596 U.S. 366 (2022). After Shinn was decided, the parties then

filed a further round of replacement briefs.

We review de novo the district court’s denial of Lee’s § 2254 petition. Cain

v. Chappell, 870 F.3d 1003, 1012 (9th Cir. 2017). The Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA) applies in this case because Lee’s federal

habeas petition was filed in 2001, after AEDPA’s effective date. See Lindh v.

Murphy, 521 U.S. 320, 336 (1997).

II

In Claim 2, Lee argues that his trial counsel, Alan Simpson, was

constitutionally ineffective at sentencing because he failed to investigate and present

mitigating evidence that Lee suffered from Fetal Alcohol Syndrome and Fetal

Alcohol Effect. Lee maintains that his in utero exposure to alcohol caused organic

brain damage, a substantial mitigating factor. To establish a Sixth Amendment claim

of ineffective assistance under Strickland v. Washington, 466 U.S. 668 (1984), Lee

must show that his trial counsel was deficient and that this deficient performance

prejudiced Lee. See, e.g., Harrington v. Richter, 562 U.S. 86, 104 (2011).

Because Lee did not raise this claim in his state postconviction relief petition,

it is procedurally defaulted. See Shinn, 596 U.S. at 371 (“A federal habeas court

generally may consider a state prisoner’s federal claim only if he has first presented

13 that claim to the state court in accordance with state procedures.”). To enable a

federal court to consider this claim, Lee must “demonstrate ‘cause’ to excuse the

procedural defect and ‘actual prejudice.’” Id. (citation omitted); see also, e.g.,

McLaughlin v. Oliver, 95 F.4th 1239, 1246 (9th Cir. 2024). However, the evidence

that Lee would bring forward to establish cause and prejudice, as well as the

underlying ineffective assistance of trial counsel claim, was not developed in the

state court proceedings. The district court also declined to hold an evidentiary

hearing to further develop these facts, to which Lee assigns further error.

The most immediate difficulty for Lee is 28 U.S.C. § 2254(e)(2), which places

strict limits on when federal courts can hold evidentiary hearings and consider new

evidence when the habeas petitioner has failed to develop the factual basis for his

claim in state court proceedings.1 In Martinez v. Ryan, 566 U.S. 1 (2012), the

Supreme Court held that “[i]nadequate assistance of counsel at initial-review

1 Under 28 U.S.C. § 2254(e)(2), “[i]f the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that— (A) the claim relies on— (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.”

14 collateral proceedings may establish cause for a prisoner’s procedural default of a

claim of ineffective assistance at trial.” Id. at 9. This stands as a “narrow exception”

to the usual rule that “in proceedings for which the Constitution does not guarantee

the assistance of counsel at all, attorney error cannot provide cause to excuse a

default.” Shinn, 596 U.S. at 380 (quoting Davila v. Davis, 582 U.S. 521, 529

(2017)).

In Shinn, however, the Supreme Court held that the special rule of Martinez

did not create an exception to § 2254(e)(2) to excuse a habeas petitioner’s failure to

develop in state court proceedings evidence of trial counsel’s ineffectiveness. 596

U.S. at 371. As Shinn now makes clear, even when “postconviction counsel

negligently failed to develop the state-court record,” a federal court “shall not hold

an evidentiary hearing” unless one of the two exceptions in § 2254(e)(2) is met. Id.

Under Shinn, “[b]ecause ‘§ 2254(e)(2) is a statute that the courts have no authority

to amend,’ its strictures must be enforced according to their terms, with no Martinez-

style judge-made equitable exceptions for only ‘a subset of claims.’” McLaughlin,

95 F.4th at 1248 (brackets omitted) (quoting Shinn, 596 U.S. at 385–87). And

§ 2254(e)(2)’s “restrictions also apply ‘when a prisoner seeks relief based on new

evidence without an evidentiary hearing.’” Id. (quoting Shinn, 596 U.S. at 389).

Thus, although Lee could try to argue cause and prejudice under Martinez to

excuse the procedural default of Claim 2, there remains the problem that Lee cannot

15 present evidence of either counsel’s alleged ineffectiveness that was not presented

in state court unless he can satisfy § 2254(e)(2). Presumably because § 2254(e)(2)

presents an independent obstacle to success on his claim, Lee is clear in his briefing

that he is not relying on the Martinez procedural default exception. He in fact

specifically represents that “it could not be clearer that Lee does not rely on

Martinez.” Lee also does not argue that he meets the § 2254(e)(2) exceptions.

Instead, Lee offers two novel theories for obtaining a federal evidentiary

hearing notwithstanding § 2254(e)(2). It appears that Lee raises the same two

arguments in support of his claim that he has established “cause” to excuse his

procedural default. As we now explain, these two theories are unpersuasive.

First, Lee argues that he is entitled to a federal evidentiary hearing because

Lorona, his state postconviction counsel, abandoned him. Lee theorizes that

counsel’s abandonment severed the principal-agent relationship, meaning that Lee

did not “fail[] to develop the factual basis of [his] claim in State court proceedings,”

within the meaning of § 2254(e)(2). We understand Lee to also be invoking

Lorona’s alleged abandonment of Lee as “cause” to excuse Lee’s failure to raise the

Fetal Alcohol Syndrome and Fetal Alcohol Effects argument in state postconviction

proceedings.

Lee’s abandonment theory lacks merit. Even assuming, notwithstanding

16 Shinn v. Ramirez, that attorney abandonment could provide grounds for avoiding the

strictures of § 2254(e)(2), Lee’s argument fails because Lorona did not abandon Lee.

Abandonment occurs when counsel fails to “operat[e] as [petitioner’s] agent in any

meaningful sense of that word.” Maples v. Thomas, 565 U.S. 266, 287 (2012) (first

alteration in original) (quoting Holland v. Florida, 560 U.S. 631, 659 (2010) (Alito,

J., concurring in part and concurring in judgment)). Abandonment can be evidenced

by “counsel’s near-total failure to communicate with petitioner or to respond to

petitioner’s many inquiries and requests over a period of several years,” id. at 282

(citation omitted), or by counsel’s decision to “withdraw from the case” without

notifying the petitioner or securing suitable replacement counsel, id. at 283. By

contrast, an attorney’s “negligent conduct” does not constitute abandonment. Id. at

281; see also Gibbs v. Legrand, 767 F.3d 879, 885–87 (9th Cir. 2014).

Lorona did not abandon Lee in the state postconviction proceedings. When

Lee wrote letters to Lorona, Lorona responded and reported his work on the case.

This is a far cry from a “near-total failure to communicate with petitioner,” or

similarly egregious conduct, that constitutes abandonment. Maples, 565 U.S. at 282

(quotation omitted). Further, Lorona’s billing records—which included more than

150 entries between June 1999 and July 2000—show that Lorona conducted regular

work on Lee’s case, including collaborating with an investigator and consulting with

Lee’s trial counsel. The many motions Lorona filed also reflect his efforts in

17 representing Lee. Ultimately, Lorona filed a substantial petition for state

postconviction relief that raised nine claims, including several ineffective assistance

claims. These actions are not the equivalent of abandonment.

Lee nevertheless argues that abandonment can be detected in Lee’s

contemporaneous letters to Lorona, in which Lee expresses frustration with Lorona’s

progress and asks for status updates. But any dissatisfaction that Lee felt toward

Lorona does not negate the work that Lorona was doing on the case. Lee also

complains that Lorona failed to meet with Simpson and confer with Lee. But the

record shows that Lorona consulted with Simpson by phone and communicated with

Lee by letter. A failure to conduct in-person meetings is not tantamount to a “near-

total failure to communicate with petitioner” and does not constitute abandonment.

Id. at 282.

Lee further contends that Lorona failed to “perform reasonably necessary

legal work” and failed to plead “a colorable claim.” Even if true, these allegations

suggest at most that Lorona was “negligent,” not that he failed to “operat[e] as

[Lee’s] agent in any meaningful sense of that word.” Id. at 287 (internal citation and

quotation marks omitted). Lorona’s failure to file an amended petition or reply brief

after obtaining an extension again reflects negligence at most. See Gibbs, 767 F.3d

at 887 (noting that in a prior case, an “attorney’s alleged negligence did not rise to

the level of abandonment or egregious misconduct because he actually represented

18 his client and filed a habeas petition, albeit an imperfect one.” (citing Towery v.

Ryan, 673 F.3d 933, 936 (9th Cir. 2012) (per curiam)). Lee’s abandonment theory

thus fails to save him from the requirements of § 2254(e)(2). It also does not

establish “cause” to excuse his procedural default.

Second, Lee argues that the requirements of § 2254(e)(2) do not apply because

the Arizona Supreme Court did not follow a “meaningful process” when it appointed

Lorona as Lee’s postconviction counsel. Essentially, Lee argues that the Arizona

Supreme Court’s constitutionally inadequate appointment process provides both

cause for Lee’s procedural default and grounds for avoiding the requirements of

§ 2254(e)(2). This argument also fails. Once again, even assuming this theory could

provide grounds for avoiding § 2254(e)(2), but see Shinn, 596 U.S. at 385–86, it is

meritless because there is no basis to conclude that the Arizona Supreme Court

followed an inadequate process in appointing postconviction counsel.

In claiming a deficient appointment process, Lee points to the fact that the

Arizona Supreme Court’s committee for appointing postconviction counsel initially

recommended against the appointment of Lorona, and that a memorandum from that

committee noted, “Too many cases per attorney – Lorona 5.” According to Lee, this

indicates that the Arizona Supreme Court did not act in “good faith” when it

appointed Lorona.

This argument fails. The record shows that the Ariona Supreme Court’s

19 committee engaged in a thoughtful vetting process for selecting counsel for capital

defendants in their state postconviction proceedings. Over two hundred letters were

sent to attorneys requesting that they apply for appointment, after which applicants

were screened and interviewed. Though Lorona was not initially selected for an

interview, the committee report noted that judges had “very positive” experiences

with him. In noting that there were “too many cases per attorney” in the case of

Lorona, the committee’s memorandum just as probably reflects an acknowledgment

that Lorona’s caseload was substantial. It does not show, as Lee contends, that the

court selected an “utterly unqualified” attorney to represent Lee.

Section 2254(e)(2) thus applies. Because Lee does not argue that he can

otherwise satisfy the requirements of that provision, he was not entitled to a federal

evidentiary hearing or to introduce new evidence in federal court, and his claim must

rest on the state court record. See McLaughlin, 95 F.4th at 1248. And for the reasons

we have set forth, Lee’s two theories also do not provide “cause” to excuse his failure

to raise his ineffective assistance claim in state postconviction proceedings.

Even if Lee could demonstrate cause to excuse the procedural default—

whether based on his postconviction counsel’s failure to raise his current Sixth

Amendment theory in state court, or on any other theory—Lee still cannot

demonstrate prejudice. Lee’s prejudice argument depends on the new evidence that

20 Lee did not put forward in state court, and, as we discussed above, § 2254(e)(2)

prevents federal courts from relying upon that new evidence. See McLaughlin, 95

F.4th at 1248. Lee does not argue that, absent his new evidence, he can demonstrate

ineffective assistance of trial counsel for failure to investigate and present fetal-

alcohol evidence at sentencing. His ineffective assistance claim necessarily fails,

and he cannot show prejudice to excuse his procedural default.

But even considering Lee’s new theory and evidence, Lee still cannot show

prejudice. See Martinez, 566 U.S. at 10. To show prejudice even under Martinez, a

petitioner must “demonstrate that the underlying ineffective-assistance-of-trial-

counsel claim is a substantial one, which is to say that the prisoner must demonstrate

that the claim has some merit.” Id. at 14; see also Dickinson v. Shinn, 2 F.4th 851,

858 (9th Cir. 2021). Lee cannot demonstrate prejudice from the procedural default

because his underlying Strickland claim lacks merit. That is, because Lee can show

neither that his trial counsel performed deficiently nor that this alleged deficient

performance prejudiced him, see Richter, 562 U.S. at 104, Lee cannot demonstrate

prejudice from his postconviction counsel’s failure to raise the fetal alcohol

ineffective assistance theory in state postconviction proceedings.

First, Lee cannot show deficient performance by his trial counsel.

Under Strickland’s performance prong, “[a] convicted defendant making a claim of

21 ineffective assistance must identify the acts or omissions of counsel that are alleged

not to have been the result of reasonable professional judgment.” Strickland, 466

U.S. at 690. We “then determine whether, in light of all the circumstances, the

identified acts or omissions were outside the wide range of professionally competent

assistance.” Id. In performing this analysis, the question is whether “counsel’s

representation fell below an objective standard of reasonableness.” Richter, 562

U.S. at 104 (quoting Strickland, 466 U.S. at 688). “Representation is

constitutionally ineffective only if it ‘so undermined the proper functioning of the

adversarial process’ that the defendant was denied a fair trial.” Id. at 110

(quoting Strickland, 466 U.S. at 686).

In the capital sentencing context, “‘counsel has a duty to make reasonable

investigations or to make a reasonable decision that makes particular investigations

unnecessary’ during the penalty phase of a trial.” Bolin v. Davis, 13 F.4th 797, 804

(9th Cir. 2021) (emphasis in original) (quoting Carter v. Davis, 946 F.3d 489, 513

(9th Cir. 2019) (per curiam)). But when assessing counsel’s performance, we

“indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Strickland, 466 U.S. at 689; see also Cullen v.

Pinholster, 563 U.S. 170, 196 (2011).

In this case, Simpson’s performance in the penalty phases was within the

“wide range of professionally competent assistance.” Strickland, 466 U.S. at 690.

22 At sentencing, Simpson put forward wide-ranging mitigating evidence on Lee’s

behalf, including about Lee’s age, deprived childhood, mental capacity and

personality traits, remorse, lack of prior criminal record, and strong support from

Lee’s family and friends. Among other things, Simpson put on evidence showing

how Lee was “ping-pong[ed]” between homes as a young child and received no

familial affection, with his parents often leaving Lee with another family and then

not contacting him. Simpson also emphasized Lee’s diminished mental capacity and

psychological orientation, which placed him in the 99th percentile of “the

compliance scale” and showed that he was a “follower, not a leader.” Simpson put

on evidence that these mitigating factors were the only explanation for Lee’s

otherwise inexplicable crimes, especially when Lee had no criminal record apart

from stealing a bicycle at the age of fifteen.

Although Simpson did not introduce evidence of fetal brain damage from

alcohol exposure, Simpson did put forward evidence of how Lee’s mother abused

alcohol, including before Lee was born. Simpson’s investigator testified that Lee’s

“mother abused alcohol for a number of years, including, prior to his birth.”

Specifically, “[d]uring the period of before he was born,” Lee’s mother would be

furnished with “a case of beer every other day, and then that was augmented” to a

“case of beer every other day with two 12-packs in between.”

Simpson’s efforts in representing Lee did not go unnoticed. The same state

23 trial judge who presided over Lee’s trials commented when denying Lee’s state

postconviction petition that Lee “received an excellent defense from a very

competent and experienced attorney.” The trial judge reached this conclusion based

on his own “observations in the pretrial stage, at trial, and finally at sentencing.”

These comments from a judge who observed Lee’s counsel’s performance firsthand

support the conclusion that counsel did not act deficiently. See Schiro v. Landrigan,

550 U.S. 465, 476 (2007) (“[T]he judge presiding on postconviction review was

ideally situated to make this assessment because she is the same judge who sentenced

Landrigan . . .”); Mann v. Ryan, 828 F.3d 1143, 1157–58 (9th Cir. 2016) (en banc)

(similar). In short, based on the record before the state court, there would be no basis

to conclude that Simpson’s presentation of mitigating evidence fell below Sixth

Amendment standards.

Notwithstanding this, Lee argues that Simpson was constitutionally

ineffective for failing to present evidence of neurological damage caused by in utero

exposure to alcohol. But even if we considered Lee’s proffered evidence, Lee cannot

overcome the “strong presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance.” Strickland, 466 U.S. at 689.

Lee principally argues that Simpson performed deficiently by relying upon

psychologist Dr. Mickey McMahon as his expert. Lee contends that Simpson should

have also retained an expert specially qualified in evaluating persons who had been

24 exposed to alcohol in utero. In a declaration submitted to the district court, Simpson

claimed that “[e]arly in the investigation of [Lee’s] case, I began to suspect that he

might have been exposed to alcohol in utero and that he had sustained neurological

damage as a result of that exposure.” But when Simpson raised this possibility with

Dr. McMahon, Dr. McMahon responded that the theory lacked merit because Lee

“did not display the ‘facial characteristics’ of a child with fetal alcohol syndrome.”

Dr. McMahon “therefore dismissed the possibility that [Lee] suffered any

neurological impairment as a result of in utero alcohol exposure.” Simpson claims

that he “[t]rust[ed] Dr. McMahon’s assessment of the fetal alcohol exposure issue”

and did not retain an additional expert to look into the issue further.

Simpson’s reliance on Dr. McMahon did not amount to constitutionally

ineffective assistance of counsel. “Counsel’s failure to consult” with additional

experts is “not unreasonable” when “counsel did retain medical experts whom he

thought well-qualified.” Babbitt v. Calderon, 151 F.3d 1170, 1174 (9th Cir. 1998).

In Babbitt, for example, we rejected the argument that defense counsel should have

retained experts with particular expertise in post-traumatic stress disorder. Id.

Instead, it was sufficient that counsel had retained qualified experts who “did not

state that they required the services of . . . additional experts.” Id. As we have

explained, “[i]t is certainly within the ‘wide range of professionally competent

assistance’ for an attorney to rely on properly selected experts.” Harris v. Vasquez,

25 949 F.2d 1497, 1525 (9th Cir. 1990) (quoting Strickland, 466 U.S. at 690); see also

Stokley v. Ryan, 659 F.3d 802, 813 (9th Cir. 2011) (“[N]either of the experts counsel

hired unequivocally stated that Stokley should be examined by a

neuropsychologist—and counsel was under no obligation to seek

neuropsychological testing in the absence of any such recommendation.”).

In this case, Simpson reasonably selected Dr. McMahon as an expert. As

noted in a contemporaneous letter Simpson wrote to Lee’s probation officer,

Simpson believed that “Dr. McMahon has had a strong background in corrections,

both adult and juvenile.” Dr. McMahon’s resume lists qualifications that would have

enabled him to evaluate Lee for psychological impairments. Dr. McMahon held a

doctorate in clinical psychology and had been a certified psychologist for nearly two

decades by the time of Lee’s 1993 trial. Since 1975, he had been a consultant to

various government entities, including the Maricopa County Criminal Court

Division, the Juvenile Court, and the Arizona Department of Corrections in matters

including the “[p]sychological evaluations and treatment of . . . [c]hildren and

parents in cases of: child abuse, incorrigibility, delinquency, neglect, etc.” Dr.

McMahon also had experience examining patients “[f]or loss of specific

neuropsychological abilities associated with organic brain damage,” “[o]rganic

[m]ental [d]isorder,” and “alcohol/substance abuse disorders.” In addition, Dr.

McMahon had served as an expert in past criminal cases, including evaluating

26 mitigating circumstances, with “[p]articular attention paid to the role of alcohol and

substance abuse in the committing offense.”

Given Dr. McMahon’s qualifications and experience, Simpson was not

ineffective in relying on Dr. McMahon. Although Simpson in a later declaration

faulted himself for relying on Dr. McMahon, that declaration, expressed through

“the distorting lens of hindsight,” does not reflect “what was known and reasonable

at the time the attorney made his choices.” Hendricks v. Calderon, 70 F.3d 1032,

1036 (9th Cir. 1995) (citation omitted). The declaration does not show that Simpson

“questioned or should have questioned the competence” of Dr. McMahon at the time

of his investigation into Lee’s mitigating circumstances. Harris, 949 F.2d at 1525.

Because it was reasonable for Simpson to retain Dr. McMahon, it was also

reasonable for Simpson to not seek further expert assistance based on Dr.

McMahon’s disavowal of the theory that Lee might have developed neurological

impairments from fetal alcohol exposure. When a retained expert “did not state that

[he] required the services of . . . additional experts,” there is “no need for counsel to

seek them out independently.” Babbitt, 151 F.3d at 1174; see also Payton v. Cullen,

658 F.3d 890, 896 (9th Cir. 2011) (“Having retained qualified experts, it was not

objectively unreasonable for [the attorney] not to seek others.”). Counsel has a duty

to provide the retained expert with “pertinent information about the defendant,”

Caro v. Woodford, 280 F.3d 1247, 1255 (9th Cir. 2002), and to investigate issues for

27 which the expert has specifically “recommended further inquiry,” Bemore v.

Chappell, 788 F.3d 1151, 1172 (9th Cir. 2015). But here, Simpson provided Dr.

McMahon with his suspicions about Lee’s fetal alcohol exposure, and McMahon did

not recommend further inquiry or retaining another expert. Simpson thus had no

further constitutional duty to retain a different expert.

This conclusion is not undermined by Lee’s argument that Fetal Alcohol

Syndrome and Fetal Alcohol Effects were well-known in 1994 and that Dr.

McMahon should have diagnosed it then. As one of Lee’s new experts

acknowledges, the Diagnostic and Statistical Manual of Mental Disorders (DSM)

available at the time of the 1994 trial and sentencing did not contain a specific

diagnostic code for a neurodevelopmental disorder associated with prenatal alcohol

exposure, which exists only in “current diagnostic terminology.” Another of Lee’s

new experts further recognizes that “[t]he majority of individuals [with Fetal

Alcohol Syndrome and Fetal Alcohol Effect], particularly those born before 1973,

went undiagnosed, and to this day the greatest majority of individuals continue to go

undiagnosed.”

It is thus doubtful that Dr. McMahon was incompetent for failing to diagnose

Lee in 1994. But even if he were, it would not change our bottom-line conclusion

about Lee’s Sixth Amendment theory. “An expert’s failure to diagnose a mental

condition does not constitute ineffective assistance of counsel, and [a petitioner] has

28 no constitutional guarantee of effective assistance of experts.” Earp v. Cullen, 623

F.3d 1065, 1077 (9th Cir. 2010). Thus, “[e]ven if the mental health professional[]

who evaluated [Lee] at the time of his trial incorrectly concluded that [Lee] did not

have organic brain damage, [Lee’s] claim fails.” Id. Dr. McMahon’s alleged

misdiagnosis does not demonstrate ineffective assistance of counsel.

Finally, Lee claims that Simpson was deficient because he failed to abide by

the standards set forth in the 2003 revised edition of the American Bar Association

(ABA) Guidelines for the Appointment and Performance of Defense Counsel in

Death Penalty Cases, reprinted at 31 HOFSTRA L. REV. 913 (2003). Lee relies on

the commentary to Guideline 10.11, which explains that expert testimony

concerning “the permanent neurological damage caused by fetal alcohol syndrome”

could “lessen the defendant’s moral culpability for the offense or otherwise support[]

a sentence less than death.” Id. at 1060–61.

Once again, Lee fails to demonstrate Simpson’s deficient performance. A

violation of the ABA Guidelines does not necessarily equate to a constitutional

violation. See Bobby v. Van Hook, 558 U.S. 4, 7 (2009) (per curiam) (explaining

that the ABA standards “can be useful as ‘guides’ to what reasonableness entails,

but only to the extent they describe the professional norms prevailing when the

representation took place”); Sansing v. Ryan, 41 F.4th 1039, 1057 (9th Cir. 2022);

McGill v. Shinn, 16 F.4th 666, 690 (9th Cir. 2021). Here, the 2003 ABA Guidelines

29 on which Lee relies had not been promulgated at the time of Lee’s sentencing, and

the then-prevailing 1989 ABA Guidelines did not yet contain the guidance in

question. See ABA Guidelines for the Appointment and Performance of Counsel in

Death Penalty Cases (1989). Regardless, Simpson did put on mitigating evidence

of Lee’s mental and psychological deficiencies, and he raised the fetal alcohol issue

with Dr. McMahon. We cannot conclude that Simpson failed to abide by prevailing

professional standards given his efforts to develop and present mitigating evidence.

Even assuming Simpson performed deficiently, Lee still could not show

prejudice from the procedural default because any ineffective assistance of counsel

did not prejudice Lee. “In the capital sentencing context, the prejudice inquiry asks

‘whether there is a reasonable probability that, absent the errors, the sentencer—

including an appellate court, to the extent it independently reweighs the evidence—

would have concluded that the balance of aggravating and mitigating circumstances

did not warrant death.’” Shinn v. Kayer, 592 U.S. 111, 117–18 (2020) (per curiam)

(quoting Strickland, 466 U.S. at 695). The standard is “highly demanding,” id. at

118 (quoting Kimmelman v. Morrison, 477 U.S. 365, 382 (1986)), and “requires an

evaluation of the strength of all the evidence and a comparison of the weight of

aggravating and mitigating factors.” Thornell v. Jones, 2024 WL 2751215, at *10

(U.S. May 30, 2024). The “reasonable probability” standard further requires a

30 “‘substantial,’ not just ‘conceivable,’ likelihood of a different result.” Shinn, 592

U.S. at 118 (quoting Pinholster, 563 U.S. at 189). In this case, even if Simpson had

presented the fetal alcohol brain damage theory that Lee now proffers, there would

not be a “substantial” likelihood that Lee would have evaded a death sentence. Id.

To start, it is speculative whether Lee’s new evidence would have materially

added to the overall case in mitigation. Lee argues that new evidence of alleged

organic brain damage would have cast him in a more sympathetic light. But as we

have discussed above, trial counsel had already endeavored to show why, based on

mitigating factors, Lee was undeserving of the death penalty. These mitigating

factors included Lee’s difficult and deprived childhood, age, lack of prior criminal

history, difficulties in school, learning disability, mental limitations, and passive and

suggestible personality. The sentencing hearing also included evidence that Lee’s

mother had abused alcohol before Lee was born.

The trial court acknowledged Lee’s mitigating evidence, noting, for example,

that Lee had a “dysfunctional” and “deprived childhood” in which he “was almost

treated as chattel for his father,” with parents who “seemingly never showed any

affection toward the defendant” and “provided virtually no care.” But referencing

other mitigating circumstances that it did not find Lee had proven, the state trial

court still noted that “even if this court were to consider every one of the factors

proposed by the defendant as a mitigating circumstance,” they would not be

31 “sufficiently substantial to call for leniency” given the aggravating features of Lee’s

crimes. Under these circumstances, we are hard-pressed to conclude there is a

substantial likelihood that evidence of fetal-alcohol issues would have resulted in a

different sentence. See Floyd v. Filson, 949 F.3d 1128, 1139–40 (9th Cir. 2020)

(holding that testimony on fetal alcohol syndrome would not have changed the

balance of mitigating and aggravating factors); cf. Bemore, 788 F.3d at 1159–60,

1174–76 (recognizing that evidence of “organic brain damage” created a reasonable

probability of a different sentence when trial counsel presented no mental health

mitigation evidence to the sentencing jury and instead presented other theories that

damaged the defendant’s credibility).

Lee argues that evidence of Fetal Alcohol Syndrome and Fetal Alcohol Effect

would have specifically helped to explain his poor judgment and suggestibility. But

at sentencing, Simpson had already put on evidence to build on those themes.

Among other things, and in addition to Lee’s age, Simpson introduced evidence

through Dr. McMahon that Lee was in the 99th percentile of the “compliance scale”

and the 96th percentile of the “suggestibility scale,” that he was “a virtual door mat”

in his extreme tendency to be a follower, and that he had “a diminished capacity to

appreciate the consequences of his actions.” Lee’s new experts argue that his fetal

alcohol brain damage provided an explanation for his developmental immaturity, but

trial counsel had already worked to develop that impression of Lee. In light of this

32 evidence, there is no reasonable probability that a different sentence would have

resulted if Simpson had put on evidence of organic brain damage. Shinn, 592 U.S.

at 117–18; see also Floyd, 949 F.3d at 1138–40.

In any event, even if this new evidence might have changed the complexion

of the mitigation story to some extent, there is no reasonable probability that it would

have overcome the extreme aggravating circumstance of Lee’s offenses, especially

considering the role he played in the murders. In evaluating prejudice, Lee “must

show a reasonable probability” that a capital sentence would have been rejected after

the sentencer “weighed the entire body of mitigating evidence . . . against the entire

body of aggravating evidence.” Wong v. Belmontes, 558 U.S. 15, 20 (2009) (per

curiam); see also Pinholster, 563 U.S. at 198 (finding no prejudice when “[t]he State

presented extensive aggravating evidence”). And “where the aggravating factors

greatly outweigh the mitigating evidence, there may be no ‘reasonable probability’

of a different result,” even if the petitioner presents “substantial evidence of the kind

that a reasonable sentencer might deem relevant to the defendant’s moral

culpability.” Jones, 2024 WL 2751215, at *7 (quotations omitted).

In this case, Lee’s crimes involved numerous aggravating factors.

Notwithstanding Lee’s age and claimed follower personality, Lee played a lead role

in three senseless murders of complete strangers in a matter of three weeks. See

Belmontes, 558 U.S. at 25 (explaining that “the cold, calculated nature of the . .

33 . murder” served as a “counterpoint” to new evidence of defendant’s “impairment of

the neurophysiological mechanisms for planning and reasoning”); id. at 28 (noting

that evidence that defendant had committed another murder was “the most powerful

imaginable aggravating evidence”).

And the murders involved other aggravating circumstances beyond their

number. All three of the murders Lee committed involved pecuniary gain. The

Reynolds and Drury murders involved phone calls that effectively lured the victims

into the harrowing situations that would lead to their deaths. In the cases of Lacey

and Drury, Lee fired numerous shots at each victim, plainly shooting to kill. And

the murder of Linda Reynolds stands out for its unique depravity. Lee and Hunt

kidnapped and sexually assaulted Reynolds, forced her to withdraw the last twenty

dollars from her bank account, and then debated in Reynold’s presence whether to

kill her. Then Lee shot Reynolds and stabbed her to finish the job, with the two men

leaving Reynolds to die in the desert. As the trial court observed in the case of

Reynolds, “[t]he amount of time which elapsed throughout the [w]hole ordeal, and

the injuries and indignities suffered, amount to the height of cruelty.”

Balancing the mitigating evidence against the horrific nature of Lee’s crimes,

in which he played a central role, Lee cannot establish prejudice from his trial

counsel’s failure to present evidence of alleged organic brain damage from fetal

alcohol exposure. Lee thus cannot demonstrate prejudice from the procedural

34 default of not raising this issue in state postconviction proceedings.

III

We next turn to Lee’s proposed claim (Proposed Claim 26) that the Arizona

Supreme Court erred on direct appeal by refusing to consider mitigating evidence

that lacked a causal nexus to his crimes. Lee challenges the following portion of the

Arizona Supreme Court’s opinion in Lee I:

This court finds that the trial court properly rejected defendant’s claim that he was merely a follower when he was armed with his own weapons in both murders, initiated both robberies by making the phone calls, pulled the trigger in both murders, and stabbed Reynolds. Further, defendant has failed to establish a nexus between his deprived childhood and his crimes. Upon independent review of all mitigation evidence offered by defendant, this court finds no mitigating circumstances beyond those found by the trial court.

944 P.2d at 1221 (emphasis added). Lee interprets this passage as applying a causal

nexus test, in which the court did not consider his deprived childhood and other

mitigating circumstances because it required that he demonstrate a nexus between

that evidence and the murders, in violation of Tennard v. Dretke, 542 U.S. 274

(2004).

The district court denied Lee leave to add this claim to his § 2254 petition,

finding that amendment would be futile because the claim was untimely,

procedurally defaulted, and lacking merit. We agree on each point.

The district court correctly denied leave to add Proposed Claim 26 because it

35 was not timely presented for review. AEDPA imposes a one-year statute of

limitations on habeas claims by state prisoners. See 28 U.S.C. § 2244(d)(1).

Although Lee’s original § 2254 petition was timely, he did not seek leave to add his

causal nexus claim until years later. Lee argues, however, that under Federal Rule

of Civil Procedure 15(c)(1)(B), Proposed Claim 26 was timely because it relates

back to Claim 19 of his earlier petition, and is a “mere amplification” of that claim.

An amended pleading “relates back to the date of the original pleading

when . . . the amendment asserts a claim or defense that arose out of the conduct,

transaction, or occurrence set out—or attempted to be set out—in the original

pleading.” Fed. R. Civ. P. 15(c)(1)(B). Specifically, a claim relates back if the

original and amended claims are “tied to a common core of operative facts.” Mayle

v. Felix, 545 U.S. 644, 664 (2005). Conversely, a claim does not relate back if it is

“supported by facts that differ in both time and type from those the original pleading

set forth.” Id. at 650.

The district court correctly rejected Lee’s argument that Proposed Claim 26

shared a common core of operative facts with his Claim 19. Claim 19 argued that

“Arizona’s statutory scheme for imposing the death penalty is unconstitutional

because it does not sufficiently channel the sentencer’s discretion.” The factual basis

of Claim 19 rests on an asserted overbreadth of Arizona’s capital sentencing scheme,

i.e., that it does not sufficiently narrow the class of individuals who could be subject

36 to the death penalty. Proposed Claim 26, by contrast, rests on the Arizona Supreme

Court’s evaluation of mitigation evidence in Lee’s particular case.

Lee argues that Proposed Claim 26 should nonetheless relate back because,

based on several indirect links, it is ultimately connected to Claim 19. Lee notes that

Claim 19 cites Woodson v. North Carolina, 428 U.S. 280 (1976), and that Woodson

in turn was cited in Lockett v. Ohio, 438 U.S. 586, 601 (1978). Lee goes on to

explain that we have cited Lockett and Eddings v. Oklahoma, 455 U.S. 104 (1982),

in describing the Arizona Supreme Court’s past unconstitutional applications of a

causal nexus test. To provide the final link, Lee maintains that Tennard relied on

the Lockett-Eddings line of cases in rejecting a Fifth Circuit nexus test analogous to

Arizona’s.

Lee’s attempt to connect Proposed Claim 26 to Claim 19 does not satisfy

Rule 15. The connection between cases that Lee advances is too generic to satisfy

the “relating back” standard because the two claims at issue do not rest on a common

core of operative facts. Mayle, 545 U.S. at 664. The district court thus did not err

in denying Lee leave to add Proposed Claim 26 because it would be untimely under

§ 2244(d)(1).

Even if it were timely, Proposed Claim 26 is also procedurally defaulted. A

state procedural bar will foreclose federal court review of a claim in a § 2254 petition

37 “if the decision of [the state] court rests on a state law ground that is independent of

the federal question and adequate to support the judgment.” Lee v. Kemna, 534 U.S.

362, 375 (2002) (emphasis and brackets in original) (quoting Coleman v. Thompson,

501 U.S. 722, 729 (1991)). Here, Lee attempted to raise the causal nexus claim in

his second postconviction petition in state court. The state trial court rejected this

petition as improperly successive, holding that Arizona Rule of Criminal Procedure

32.2(a) precluded Lee from pursuing a claim that “should have been raised on direct

appeal or in the first Rule 32 proceedings.” The Arizona Supreme Court then denied

review. The independent and adequate state law grounds for dismissal provide

another reason why Lee’s Proposed Claim 26 is futile. See Kemna, 534 U.S. at 375.

Lee does not challenge the independence of Arizona’s procedural bar.

Instead, he disputes whether the bar is “firmly established and regularly followed”

by the Arizona courts, a requirement for a claim to be procedurally defaulted under

a state procedural rule. Id. at 376 (quoting James v. Kentucky, 466 U.S. 341, 348

(1984)); see also Murray v. Schriro, 745 F.3d 984, 1016 (9th Cir. 2014). Lee’s

argument lacks merit.

Once the State carries the initial burden of showing an applicable state

procedural bar, the burden shifts to the petitioner to raise “specific factual allegations

that demonstrate the inadequacy of the state procedure, including citation to

authority demonstrating inconsistent application of the rule.” Williams v. Filson,

38 908 F.3d 546, 577 (9th Cir. 2018) (citation omitted). If the petitioner makes this

showing, the burden then shifts back to the State to demonstrate that the rule has

been consistently and regularly applied. Id. In this case, Lee has not cited “authority

demonstrating inconsistent application” of the procedural bar. Id.

Lee points to Spreitz v. Ryan, 916 F.3d 1262 (9th Cir. 2019), a case in which

we ruled that the petitioner’s causal nexus claim was not procedurally defaulted. But

Spreitz is inapposite because the petitioner there raised a causal nexus claim in his

first state postconviction proceeding. Id. at 1273 (“The first opportunity [petitioner]

had to raise that claim was before the PCR court, at which time he did so.”). Spreitz

supports the proposition that a claim is not procedurally defaulted if the petitioner

brought the claim at the earliest opportunity in his postconviction proceedings. Here,

Lee failed to raise his claim in the first Rule 32 proceedings, so he cannot rely on

Spreitz to avoid procedural default.

Next, Lee points to (Ernesto) Martinez v. Ryan, 926 F.3d 1215, 1235 (9th Cir.

2019), and Djerf v. Ryan, 931 F.3d 870, 885 (9th Cir. 2019), two cases in which we

considered causal nexus claims on the merits without addressing the issue of

procedural default. But the fact that no issue of procedural default was raised or

addressed in these cases does not demonstrate that Arizona has not regularly applied

the procedural rule at issue here. Lee has identified no Arizona authority supporting

that theory. And to the extent Lee argues that the procedural default here is different

39 because the error of which he complains occurred on direct appeal before the

Arizona Supreme Court, he cites no authority indicating that Arizona courts have

not required such a claim to be brought in an initial state postconviction petition.

Alternatively, Lee argues that, if Proposed Claim 26 is procedurally defaulted,

he can show cause and prejudice to excuse the default for all the reasons he gave for

Claim 2. As explained above, however, those theories lack merit.

Finally, even if Proposed Claim 26 was timely and not procedurally defaulted,

the claim fails on the merits. Contrary to Lee, the Arizona Supreme Court did not

refuse to consider mitigating evidence because it lacked a causal nexus to Lee’s

crimes. The court instead gave less weight to Lee’s mitigating evidence than Lee

would have wanted, which the court was permitted to do. And even assuming the

Arizona Supreme Court did apply an unconstitutional causal nexus test, Lee’s claim

would still fail because any error was harmless.

The Arizona Supreme Court did not apply an unconstitutional causal nexus

test. For a death sentence to meet the requirements of the Eighth and Fourteenth

Amendments, the sentencer must not “refuse to consider, as a matter of law, any

relevant mitigating evidence.” Eddings, 455 U.S. at 114 (emphasis in original). But

sentencers may “determine the weight to be given relevant mitigating evidence,” so

40 long as they do not “exclud[e] such evidence from their consideration.” Id. at 114–

15; see also Jones, 2024 WL 2751215, at *6 (“Eddings held that a sentencer may

not ‘refuse to consider . . . any relevant mitigating evidence.’ It did not hold that a

sentencer cannot find mitigating evidence unpersuasive.”) (quoting Eddings, 455

U.S. at 114); Harris v. Alabama, 513 U.S. 504, 512 (1995) (“[T]he Constitution does

not require a State to ascribe any specific weight to particular factors, either in

aggravation or mitigation, to be considered by the sentencer.”); Ortiz v. Stewart, 149

F.3d 923, 943 (9th Cir. 1998) (“While it is true that a sentencer may not ‘refuse to

consider, as a matter of law, any relevant mitigating evidence,’ a sentencer is free to

assess how much weight to assign to such evidence.” (citations omitted)), abrogated

on other grounds by Martinez, 566 U.S. at 9. The question is thus whether the

Arizona Supreme Court refused to consider Lee’s mitigating evidence because there

was no causal nexus, or instead found that it did not outweigh the aggravating

circumstances here.

Lee construes the Arizona Supreme Court’s opinion as excluding the

consideration of mitigating evidence altogether when it stated that “defendant has

failed to establish a nexus between his deprived childhood and his crimes.” Lee I,

944 P.2d at 1221. Lee also points out that the Arizona courts have, in the past, run

afoul of the constitutional principle from Eddings at times. As we explained in

McKinney v. Ryan, 813 F.3d 798, 815 (9th Cir. 2015) (en banc), “the Arizona

41 Supreme Court routinely articulated and insisted on its unconstitutional causal nexus

test” for about “fifteen years” spanning roughly the mid-1980s to 2000. The Arizona

Supreme Court decided Lee I in this timeframe. Lee argues that, “consistent with”

this history, here “the Arizona Supreme Court . . . necessarily screened that evidence

and discounted it as having no value as mitigation because it bore no causal

connection to the murder.”

As we have explained, however, McKinney “resolved only the ‘precise

question’ whether the state court had applied the causal-nexus test in that specific

case.” Greenway v. Ryan, 866 F.3d 1094, 1095–96 (9th Cir. 2017) (per curiam)

(quoting McKinney, 813 F.3d at 804). McKinney did not hold “that Arizona had

always applied” this unconstitutional test. Id. at 1095. We “therefore must examine

the state court decisions in [Lee’s] case to determine whether they took into account

all mitigating factors.” Id. at 1096. This inquiry includes looking to the trial judge’s

ruling to the extent it was “adopted or substantially incorporated” by the higher

court. McKinney, 813 F.3d at 819.

Here, the state courts’ rulings indicated their consideration of all mitigating

factors. For example, in Lee I, the Arizona Supreme Court explained:

For each of the murders, we find that (1) defendant has proved by a preponderance of the evidence the mitigating circumstances of defendant’s age, lack of significant prior criminal history, deprived childhood, cooperation with law enforcement officials and assistance in recovery of weapons, and remorse; and (2) the mitigating circumstances are not sufficiently substantial, taken either separately or

42 cumulatively, to call for leniency.

944 P.2d at 1221. Though the court noted that “defendant has failed to establish a

nexus between his deprived childhood and his crimes,” the Arizona Supreme Court

did not state that it was not considering such evidence altogether. Id.

The Arizona high court’s reference to “nexus” was not an invocation of the

unconstitutional test. The court instead stated that a trial court “must consider all

evidence offered in mitigation.” Id. at 1220. It further explained that trial courts

“should consider each mitigating circumstance individually and all mitigating

circumstances cumulatively when weighing the mitigating and aggravating factors.”

Id. at 1221 (citation and emphases omitted). The Arizona Supreme Court also stated

that it “f[ound] no mitigating circumstances beyond those found by the trial court,”

and the reference to the mitigating circumstances found by the trial court included

the evidence of Lee’s deprived childhood. Id. The trial court had earlier explained

that it considered “the defendant’s deprived childhood” to be a mitigating

circumstance that was “proved by a preponderance of the evidence.” Thus, both the

state trial court and high court considered Lee’s deprived childhood as a mitigating

factor. The Arizona high court simply rejected Lee’s request to “give greater weight

to his deprived childhood.” Id. (emphasis added).

Further, this case is distinguishable from McKinney. In McKinney, we found

that the Arizona Supreme Court had applied an unconstitutional causal nexus test

43 based on a confluence of three facts:

(1) the factual conclusion by the sentencing judge, which the Arizona Supreme Court accepted, that McKinney’s PTSD did not “in any way affect[ ] his conduct in this case,” (2) the Arizona Supreme Court’s additional factual conclusion that, if anything, McKinney’s PTSD would have influenced him not to commit the crimes, and (3) the Arizona Supreme Court’s recital of the causal nexus test for nonstatutory mitigation and its pin citation to the precise page in [State v. Ross, 886 P.2d 1354 (Ariz. 1994)], where it had previously articulated that test.

813 F.3d at 821 (first alteration in original). From these facts, we “conclude[d] that

the Arizona Supreme Court held, as a matter of law, that McKinney’s PTSD was not

a nonstatutory mitigating factor, and that it therefore gave it no weight.” Id.

None of those circumstances exists here. The sentencing judge never

concluded that Lee’s deprived childhood did not “in any way affect[ ] his conduct in

this case.” Id. (alteration in original). Nor did the Arizona Supreme Court state that

Lee’s deprived childhood would have made his crime less likely. And the Arizona

Supreme Court did not recite the causal nexus test from Ross or give a pin citation

to its previous articulation of the test in Ross.

Lee argues that the Arizona Supreme Court in this case cited approvingly State

v. Stokley, 898 P.2d 454 (Ariz. 1995), a case that applied a causal nexus test. True,

Stokley applied a causal nexus test, and the Arizona Supreme Court cited Stokley in

both its opinions in Lee’s appeals. See Lee I, 944 P.2d at 1218, 1221; Lee II, 944

P.2d at 1230, 1232. But in both opinions, the Arizona Supreme Court cited Stokley

44 only for the uncontested propositions that it needed to “independently weigh[] the

aggravating and mitigating circumstances related to each death sentence imposed on

the defendant,” Lee I, 944 P.2d at 1221, Lee II, 944 P.2d at 1231–32, and that “trial

judges are presumed to know the law,” id. at 1230 (citation and quotation marks

omitted).

Finally, even if the Arizona Supreme Court applied an unconstitutional causal

nexus test, Lee cannot show prejudice. In evaluating whether a causal nexus error

was prejudicial, we consider whether it had a “substantial and injurious effect or

influence in determining the [sentencer’s] verdict.” McKinney, 813 F.3d at 822

(quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)). To do so, we “review

aggravating factors proven by the State and other mitigating evidence presented to

the sentencing court,” and then “ask whether consideration of the improperly ignored

evidence ‘would have had a substantial impact on a capital sentencer who was

permitted to evaluate and give appropriate weight to it.’” Djerf, 931 F.3d at 885

(quoting McKinney, 813 F.3d at 823).

When there is “overwhelming evidence supporting the aggravating factors,”

a causal nexus error will not create prejudice if “whatever weight” would have been

afforded to the proffered mitigation evidence “would not be sufficient to call for

leniency.” Apelt v. Ryan, 878 F.3d 800, 840 (9th Cir. 2017); see also Greenway,

45 866 F.3d at 1100 (“[E]ven if we were to determine that the state court did apply the

causal-nexus test in violation of Eddings, there could have been no prejudice because

the aggravating factors overwhelmingly outweighed all the evidence that Greenway

asserted as mitigating.”); Djerf, 931 F.3d at 885–86 (finding a causal nexus error

harmless where “the undisputed facts substantiating the ‘heinous, cruel, or depraved’

finding [were] especially powerful”).

As we have discussed above, Lee’s crimes involved significant aggravating

factors. His difficult childhood and other mitigating circumstances would not have

created a “substantial impact” on the sentencer’s judgment. Id. at 885; see also

Stokley v. Ryan, 705 F.3d 401, 405 (9th Cir. 2012) (“In light of the Arizona courts’

consistent conclusion that leniency was inappropriate, there is no reasonable

likelihood that, but for a failure to fully consider Stokley’s family history or his good

behavior in jail during pre-trial incarceration, the Arizona courts would have come

to a different conclusion.”). As the trial court observed at sentencing in Lee I,

[E]ven if this Court were to consider every one of the factors proposed by defendant as a mitigating circumstance, when balanced against the aggravating factors of the cruelty, heinousness and depravity of Linda Reynolds murder, and the depravity of David Lacey’s murder, together with the factor that Lacey’s murder came just nine days after Mrs. Reynolds[’s] murder, those mitigating circumstances would not be sufficiently substantial to call for leniency. The trial court in Lee II made similar comments when considering the murder of

Harold Drury. Given the aggravating circumstances, any application of a causal

46 nexus test by the Arizona Supreme Court would have been harmless.

In sum, based on untimeliness, procedural default, and overall lack of merit,

we affirm the district court’s denial of Lee’s request for leave to amend his § 2254

petition to add Proposed Claim 26.

* * *

For the foregoing reasons, the denial of Lee’s § 2254 petition and denial of

Lee’s motion to amend are

AFFIRMED.