Ernesto Martinez v. Charles Ryan

               FOR PUBLICATION

     UNITED STATES COURT OF APPEALS
          FOR THE NINTH CIRCUIT



ERNESTO SALGADO MARTINEZ,                No. 08-99009
         Petitioner-Appellant,
                                         D.C. No.
              v.                    2:05-cv-01561-EHC

CHARLES L. RYAN,
         Respondent-Appellee.             OPINION



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

        Argued and Submitted March 27, 2019
             San Francisco, California

                   Filed June 18, 2019

 Before: M. MARGARET McKEOWN, WILLIAM A.
FLETCHER, and MILAN D. SMITH, JR., Circuit Judges.

         Opinion by Judge Milan D. Smith, Jr.
2                      MARTINEZ V. RYAN

                          SUMMARY *


               Habeas Corpus / Death Penalty

     The panel affirmed the district court’s denial of a writ of
habeas corpus as to Ernesto Martinez’s claims relating to his
first-degree murder conviction and death sentence,
dismissed for lack of jurisdiction Martinez’s claim appealing
the district court’s denial of his request to consider a Fed. R.
Civ. P. 60(b) motion, declined to expand the certificate of
appealability, and denied Martinez’s motion to stay the
appeal and remand for consideration of another claim under
Brady v. Maryland.

    The panel held that Rule 32.2(a) of the Arizona Rules of
Criminal Procedure, pursuant to which the Arizona post-
conviction review court imposed a procedural default as to
Martinez’s judicial bias claim, is independent of federal law
and adequate to warrant preclusion of federal review; and
that Martinez failed to demonstrate cause to overcome the
procedural default of that claim.

     The panel held that because Martinez’s judicial bias
claim is based on unfounded speculation, (1) his trial counsel
did not perform deficiently by not moving for the trial
judge’s recusal, and (2) his appellate counsel was not
ineffective for failing to raise on direct appeal the claim that
trial counsel was ineffective for failing to move to disqualify
the trial judge.



    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                    MARTINEZ V. RYAN                        3

    The panel held that Martinez did not establish cause and
prejudice to overcome his procedural default of his claim
that the prosecution violated Brady v. Maryland by failing to
disclose impeachment evidence about a prosecution witness.

    The panel dismissed for lack of jurisdiction Martinez’s
claim appealing the district court’s procedural ruling
declining to consider Martinez’s Rule 60(b) motion to alter
or amend the judgment.

     The panel denied Martinez’s claims relating to the jury
instruction on pre-meditation. The panel wrote that the
instruction properly conveyed to the jury that Martinez could
not be found guilty of first-degree murder if it believed he
acted impulsively. The panel held that even if the instruction
was somehow erroneous, Martinez did not show that the
instruction so infected the entire trial that the resulting
conviction violated due process. Considering the totality of
the circumstances, the panel held that an oral hiccup by the
trial court likewise did not cause the conviction to violate
due process.

    The panel held that trial counsel’s failure to retain an
independent pathologist to impeach a prosecution expert’s
testimony did not prejudice Martinez; that Martinez
therefore cannot establish under Martinez v. Ryan that his
post-conviction-review counsel was ineffective for failing to
raise the claim that trial counsel’s failure to retain a
pathologist amounted to ineffective assistance; and that, as a
result, Martinez failed to overcome the procedural default on
that claim.

    Because of the overwhelming evidence introduced at
sentencing that Martinez could appreciate the wrongfulness
of his conduct, the panel concluded that Martinez did not
4                    MARTINEZ V. RYAN

establish prejudice, and thus cannot overcome the procedural
default of his claim that trial counsel was ineffective by
failing to recall an expert at sentencing to rebut testimony by
another expert retained by the prosecution.

    The panel held that under Eddings v. Oklahoma, the
Arizona Supreme Court applied an unconstitutional causal
nexus test in concluding that Martinez’s family history is not
entitled to weight as a mitigating factor at sentencing. The
panel determined that Martinez was not prejudiced by the
Arizona Supreme Court’s constitutional error.

   The panel declined to expand the COA to include a
Brady claim that relates to evidence of premeditation.

    Because Martinez cannot establish materiality, the panel
denied Martinez’s motion to stay the appeal and to remand
for the district court to consider a weekly planner belonging
to a prosecution witness.


                         COUNSEL

Timothy M. Gabrielson (argued), Assistant Federal Public
Defender; Jon M. Sands, Federal Public Defender; Office of
the Federal Public Defender, Tucson, Arizona; for
Petitioner-Appellant.

Julie Ann Done (argued), Assistant Attorney General; Lacey
Stover Gard, Chief Counsel; Mark Brnovich, Attorney
General; Office of the Attorney General, Phoenix, Arizona;
for Respondent-Appellee.
                       MARTINEZ V. RYAN                            5

                            OPINION

M. SMITH, Circuit Judge:

    After being pulled over for speeding in Payson, Arizona,
Ernesto Martinez fatally shot Arizona Department of Public
Safety Officer Robert Martin. A jury convicted Martinez of,
among other crimes, first-degree murder. He was sentenced
to death.

    Martinez appeals the district court’s denial of his petition
for a writ of habeas corpus pursuant to 

28 U.S.C. § 2254

.
We affirm. We also deny Martinez’s motion to stay the
appeal and decline to remand the case for consideration of
another Brady claim.

  FACTUAL AND PROCEDURAL BACKGROUND

I. The Murder of Officer Martin

   In August 1995, Martinez stole a blue Monte Carlo and
used it to drive from California to Arizona. Martinez met
with his friend, Oscar Fryer, in Globe, Arizona “shortly
before the [murder] of” Officer Martin. 1

    Fryer and Martinez spoke in Martinez’s car for about
thirty minutes. Fryer asked Martinez where he had been;
Martinez responded that he had been in California. Fryer
asked Martinez if he was still on probation; Martinez
responded that he was, and that he had a warrant out for his



    1
      Oscar Fryer did not remember exactly when he met with Martinez.
The sentencing court stated that Martinez met with Fryer “three days
before the murder,” but nothing in the record supports that claim.
6                   MARTINEZ V. RYAN

arrest. Martinez told Fryer that he had come to Arizona to
visit friends and family.

    While in the car with Fryer, Martinez removed a .38
caliber handgun with black tape wrapped around the handle
from underneath his shirt and showed it to Fryer. Fryer
asked Martinez why he had the gun; Martinez responded that
it was “[f]or protection and if shit happens.”

    As Martinez was showing the gun to Fryer, they spotted
a police officer in the area. Fryer asked Martinez what he
would do if he was stopped by the police. Martinez
responded that “he wasn’t going back to jail.”

    Following that conversation, Martinez drove from Globe
to Payson on a stretch of State Route 87—better known as
the Beeline Highway. Several witnesses testified to having
seen Martinez and his car around Payson that morning.

    Susan and Steve Ball were among those witnesses.
Martinez tailgated them on the Beeline Highway “for a long
time” before passing their car “very quickly on the left-hand
side.” Shortly after that, the Balls saw Martinez’s car pulled
over to the side of the road, with a police car stopped behind
him and a police officer standing outside the driver’s side
door. As they drove by, they said to each other that it was
“good” that the driver “got the speeding ticket.”

    But shortly after the Balls saw Martinez’s car pulled
over, “the same blue car passe[d] [them] on the left-hand
side going very quickly.” The couple found it “very strange”
because “there was no time [for the driver] to have gotten a
speeding ticket.” When Martinez’s car ran a red light, the
Balls knew that “[s]omething [was] going on.”
                        MARTINEZ V. RYAN                                7

    The Balls were suspicious for good reason. After being
pulled over for speeding by Officer Martin, and after the
Balls had passed Martinez’s car, Martinez shot Officer
Martin four times with a .38 caliber handgun—the same gun
he had shown Fryer days earlier. The bullets struck Officer
Martin’s right hand, neck, back, and head. The back and
head wounds were fatal.

    After shooting Officer Martin, Martinez stole Officer
Martin’s .9mm Sig Sauer service weapon and continued
driving down the Beeline Highway. The Balls wrote down
Martinez’s license plate number when they spotted his car
again. 2

    Martinez was arrested in Indio, California the day after
the murder of Officer Martin. Hours after his arrest,
Martinez called Mario Hernandez, a friend.              After
Hernandez passed the phone to his brother, Eric Moreno,
Martinez laughingly told Moreno that “he got busted for
blasting a jura”—a slang term in Spanish for a police officer.

II. Conviction

    Martinez was charged with one count of first-degree
murder, two counts of theft, and two counts of misconduct
involving weapons. Judge Jeffrey Hotham of the Superior
Court in Maricopa County, Arizona presided over the guilt
phase of Martinez’s trial. The jury returned a verdict of
guilty on all accounts.



    2
      Hours after murdering Officer Martin, Martinez robbed a
convenience store in Blythe, California, and fatally shot the store clerk.
Martinez’s convictions and sentences for that robbery and murder,
however, are not before us.
8                   MARTINEZ V. RYAN

III.   Sentencing and Direct Appeal

    Before sentencing, Martinez filed a motion for change of
judge for cause. Another judge—Judge Ronald Reinstein,
the presiding judge of the Criminal Division—heard the
motion. Martinez argued that recusal was warranted because
Judge Hotham’s bailiff was friends with Officer Martin’s
widow.

    Judge Reinstein granted the motion. He stated that
Martinez had demonstrated no prejudice resulting from
Judge Hotham presiding over his case. Because “death is
different,” however, Judge Reinstein concluded that “the
better course to follow for all concerned is to assign another
judge to the sentencing.”

    Judge Christopher Skelly, the sentencing judge, imposed
a sentence of death. Martinez’s convictions and sentence
were affirmed by the Arizona Supreme Court on direct
appeal.

IV.    State Postconviction Review

   Martinez filed a post-conviction review (PCR) petition
challenging his conviction and sentence. Judge Hotham,
who had been assigned the PCR petition, denied it. The
Arizona Supreme Court denied discretionary review.

V. Federal Habeas Corpus Proceedings

    Martinez filed a federal habeas petition in the district
court. The district court denied the petition. The court also
denied Martinez’s motion to alter or amend judgment and to
expand the certificate of appealability (COA). Martinez
filed a notice of appeal.
                     MARTINEZ V. RYAN                         9

    After completion of appellate briefing, Martinez filed
several motions, requesting that we: (1) stay the appeal and
remand to the district court on three claims based on our
decision in Martinez v. Schriro, 

623 F.3d 731

 (9th Cir.
2010); (2) stay the appeal and remand to the district court
pursuant to Townsend v. Sain, 

372 U.S. 293

 (1963), and
Quezada v. Scribner, 

611 F.3d 1165

 (9th Cir. 2010); (3) stay
the appeal and remand to the district court based on Martinez
v. Ryan, 

566 U.S. 1

 (2012); and (4) grant leave to supplement
his Townsend/Quezada motion.

    We granted Martinez’s motion to remand pursuant to
Martinez v. Ryan. We also granted Martinez’s motion to
remand pursuant to Townsend/Quezada, construing it as “a
motion for leave to file in the district court a renewed request
for indication whether the district court would consider a
rule 60(b) motion for reconsideration of Claim 4 and for
consideration of a possible Brady-Napue claim in light of
newly discovered evidence.” Accordingly, we stayed
appellate proceedings.

    On remand, the district court declined Martinez’s
invitation to entertain a Rule 60(b) motion. The court also
denied his Confrontation Clause and ineffective assistance
of counsel (IAC) claims, and denied a COA as to those
claims.

   Martinez filed a motion requesting that we expand the
COA. We granted a COA as to all claims we had remanded
and ordered the parties to file replacement briefs.

    On appeal, Martinez raises eight certified claims and
requests that we issue a COA for another Brady claim.
Martinez also moves to stay the appeal and remand his case
for the district court to consider another Brady claim.
10                    MARTINEZ V. RYAN

     JURISDICTION AND STANDARD OF REVIEW

    Because Martinez filed his petition for habeas corpus
after the effective date of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), 

Pub. L. No. 104-132, 110

 Stat. 1214, we have jurisdiction over the certified claims
pursuant to 

28 U.S.C. § 2253

.

    We review de novo a district court’s decision to deny a
habeas petition under 

28 U.S.C. § 2254

. Bean v. Calderon,

163 F.3d 1073, 1077

 (9th Cir. 1998). Under AEDPA, we
may not grant habeas relief unless the state’s adjudication of
Martinez’s claim (1) “was contrary to . . . clearly established
Federal law, as determined by the Supreme Court,”
(2) “involved an unreasonable application of” such law, or
(3) “was based on an unreasonable determination of the facts
in light of the evidence presented in the State court
proceeding.” 

28 U.S.C. § 2254

(d).

    “In making this determination, we look to the last
reasoned state court decision to address the claim.” White v.
Ryan, 

895 F.3d 641, 665

 (9th Cir. 2018) (citing Wilson v.
Sellers, 

138 S. Ct. 1188, 1192

 (2018)). The PCR court’s
decision is the last reasoned state court decision addressing
Martinez’s judicial bias claim, his IAC claim for his
counsel’s failure to raise the judicial bias claim in state court,
and his claim that the court’s jury instructions were
erroneous.

                          ANALYSIS

I. Judicial Bias

    Martinez’s judicial bias claim stems from the
relationship between Ron Mills, Judge Hotham’s bailiff, and
Sandy Martin, Officer Martin’s widow. When the parties
                     MARTINEZ V. RYAN                       11

learned of that relationship before trial, Martinez asked the
court to replace Mills. The court held a hearing to consider
that motion.

    At the hearing, Mills testified that he had been Judge
Hotham’s bailiff for five years. He said that he had known
Sandy Martin for over thirty years—from high school—and
kept “close contact” with her and her late husband since
then. Mills testified that he considered the Martins good
friends, but that he had not attended Officer Martin’s funeral.

    Mills said that, at a pretrial hearing, he had gone up to
Sandy Martin and “asked her how she was doing and put
[his] arm around her, and . . . just expressed some
pleasantries.” Mills also testified, however, that he could
“complete [his] duties as a bailiff and not influence the jury
in any way” in Officer Martin’s case. He said he had taken
an oath “[t]o take care of the jury and not to divulge the
deliberations or the verdict.” He also testified that he would
have no contact with the victims in the view of the jury and
would “not [] in any fashion influence the jurors by way of
[his] personal feelings about a case.”

   The court denied Martinez’s motion to replace Mills.
Judge Hotham reasoned that he had “the greatest confidence
in my bailiff, Mr. Mills,” that he had “specifically already
admonished him about his responsibilities,” and that he was
“confident that [Mills] is going to be able to [abide by
them].”

    During the trial, the court excluded Mills from the
courtroom during a portion of an expert’s testimony. At a
recess (during which the jury was not present), Judge
Hotham explained to the parties that “due to defense
counsel’s concerns about my bailiff . . . I requested [him] not
to be present during the autopsy report of [the expert] so that
12                   MARTINEZ V. RYAN

no one could ever later question that my bailiff reacted to the
gory photographs in any inappropriate manner and that that
would have some effect on the jury.”

    Martinez argues that the PCR court erred in holding that
his judicial bias claim was procedurally defaulted. He
contends, in the alternative, that even if his judicial bias
claim is procedurally defaulted, he has demonstrated cause
and prejudice to overcome that default.

     A. Independent and Adequate State Ground

    Federal courts generally cannot review a habeas
petitioner’s claim if the “state court declined to address a
prisoner’s federal claim[] because the prisoner had failed to
meet a state procedural requirement.”           Coleman v.
Thompson, 

501 U.S. 722, 730

 (1991). The procedural bar
on which the state court relies must be independent of federal
law and adequate to warrant preclusion of federal review.
See Harris v. Reed, 

489 U.S. 255, 262

 (1989).

     The PCR court “explicitly impose[d] a procedural
default,” Ylst v. Nunnemaker, 

501 U.S. 797, 803

 (1991), by
stating that Martinez “waived [his judicial bias claim] by
failing to appeal [it]” and citing Rule 32.2(a)(3) of the
Arizona Rules of Criminal Procedure. Martinez does not
dispute that Arizona’s preclusion rule is independent of
federal law. See Stewart v. Smith, 

536 U.S. 856, 860

 (2002)
(per curiam). Nor does he dispute that Arizona’s preclusion
rule is an adequate bar to federal review of a claim. See Ortiz
v. Stewart, 

149 F.3d 923, 932

 (9th Cir. 1998), overruled on
other grounds by Martinez v. Ryan, 

566 U.S. 1

 (2012);
Poland v. Stewart, 

117 F.3d 1094, 1106

 (9th Cir. 1997).

   Instead, Martinez argues that Rule 32.2(a) was not
adequate because the PCR court misinterpreted the scope of
                     MARTINEZ V. RYAN                         13

the rule. He contends that “Arizona’s preclusion rules
simply do not apply where there were insufficient facts on
the record to have raised the claim on direct appeal.”
Because “Martinez’s substantive judicial bias claim
depended on facts [outside] the record,” he argues that
Rule 32.2(a) did not require him to raise that claim on direct
appeal.

     We lack jurisdiction to address that contention. See
Poland, 

169 F.3d 573, 584

 (9th Cir. 1999) (“Federal habeas
courts lack jurisdiction . . . to review state court applications
of state procedural rules.”); accord Johnson v. Foster,

786 F.3d 501, 508

 (7th Cir. 2015) ( “[A] federal habeas court
is not the proper body to adjudicate whether a state court
correctly interpreted its own procedural rules, even if they
are the basis for a procedural default.”). And even if we did
have jurisdiction, Martinez’s argument fails because he was
aware of the facts underlying his judicial bias claim before
filing his direct appeal. Martinez conceded at oral argument
that he learned of the relationship between Mills and Sandy
Martin before trial. Indeed, Martinez cited that relationship
as the reason Judge Hotham could not be “completely free
of any improper emotion or bias” when he moved for a
change of judge before sentencing—which was before he
filed his direct appeal. Martinez was present during trial
when Judge Hotham told the parties that he had asked his
bailiff to remain outside the courtroom during Dr. Keen’s
testimony. These facts belie the suggestion that Martinez
could not have raised his judicial bias claim on direct appeal.

    Rule 32.2(a) is independent of federal law and adequate
to warrant preclusion of federal review. Accordingly, we
may not review Martinez’s judicial bias claim unless he
establishes cause and prejudice.
14                   MARTINEZ V. RYAN

     B. Cause and Prejudice

    There is a narrow exception to the general rule outlined
above if the habeas petitioner can “demonstrate cause for the
default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to
consider the claims will result in a fundamental miscarriage
of justice.” Coleman, 

501 U.S. at 750

. Martinez presents
four arguments to establish cause for why he did not raise
his judicial bias claim on direct appeal. We reject all of
them.

    Martinez’s first argument is part and parcel of an
argument we have already addressed: He contends that he
can establish cause because “Judge Hotham’s ongoing
failure to comply with his ethical dut[ies] . . . constituted
facts not reasonably available with which to ask for the
judge’s recusal at trial or to raise the claim on direct appeal.”
That argument falls short because, as we explain above,
Martinez knew of, and objected to, Judge Hotham’s alleged
biased conduct before he filed his direct appeal. He cannot
now claim ignorance.

    Second, Martinez relies on a non-binding case, Porter v.
Singletary, 

49 F.3d 1483

 (11th Cir. 1995), for the
proposition that “a judge’s [breach] of the canons governing
judicial conduct constitutes ‘cause’ to excuse a procedural
default of a judicial bias claim in state court.” Porter,
however, does not support the weight that Martinez hoists on
it. There, the clerk of court submitted a declaration over a
decade after the defendant’s trial stating that “before or
during [the] trial,” the trial judge had said that “he would
send [the defendant] to the chair.” Porter, 

49 F.3d at 1487

(quoting declaration). The court held that the defendant had
established cause because he could not reasonably have been
expected to discover the judge’s statements to the clerk of
                     MARTINEZ V. RYAN                       15

court before he filed his direct appeal. 

Id. at 1489

. Here, by
contrast, Martinez could have discovered—and did
discover—the evidence that underlies his judicial bias claim
before he filed his direct appeal. Unlike in Porter, Martinez
has identified no evidence, such as “specific [statements]
that the judge had a fixed predisposition to sentence this
particular defendant to death if he were convicted by the
jury,” 

id.,

 that demonstrate Judge Hotham’s alleged bias or
impropriety. For these reasons, Porter’s reasoning does not
support Martinez’s argument for cause.

    Third, Martinez argues that the ineffective assistance of
his PCR counsel establishes cause. That argument lacks
merit, however, because ineffective assistance of PCR
counsel can constitute cause only to overcome procedurally
defaulted claims of ineffective assistance of trial counsel.
See Martinez, 

566 U.S. at 9

; see also Trevino v. Thaler,

569 U.S. 413, 429

 (2013). We have rejected, and reject
again, the argument that ineffective assistance of PCR
counsel can establish cause to overcome procedurally
defaulted claims of judicial bias. See Pizzuto v. Ramirez,

783 F.3d 1171

, 1176–77 (9th Cir. 2015) (“[O]nly the
Supreme Court could expand the application of Martinez to
other areas.”).

    Martinez’s fourth and final argument leapfrogs over the
cause and prejudice analysis to reach the merits of his
judicial bias claim. He contends that Judge Hotham’s bias
constituted structural error that automatically entitles him to
habeas relief. But that argument misses the mark because
we cannot reach the merits of Martinez’s judicial bias claim
unless he demonstrates cause and prejudice to overcome the
procedural default of that claim. Because Martinez has
failed to do so, we do not address the merits of his claim.
16                  MARTINEZ V. RYAN

   Martinez fails to demonstrate cause to overcome the
procedural default of his judicial bias claim, so we need not
address prejudice. We affirm the district court’s denial of
Martinez’s judicial bias claim.

II. Ineffective Assistance of Counsel (Judicial Bias)

    Martinez argues that the PCR court unreasonably applied
clearly established federal law when it denied his IAC claim
based on trial counsel’s failure to move to disqualify Judge
Hotham for judicial bias. He also contends that his appellate
counsel was ineffective for failing to raise the IAC claim on
direct appeal. We reject both arguments.

    To prevail on an IAC claim, the defendant must show
both that counsel’s performance was deficient, and that he
suffered prejudice due to counsel’s deficiency. Strickland v.
Washington, 

466 U.S. 668, 687

 (1984). On federal habeas
review, “the question is not whether counsel’s actions were
reasonable[,]” but “whether there is any reasonable
argument that counsel satisfied Strickland’s deferential
standard.” Harrington v. Richter, 

562 U.S. 86, 105

 (2011).
The Supreme Court has described this standard of review as
“doubly” deferential. Harrington, 

562 U.S. at 105

.

    Martinez’s trial counsel did not perform ineffectively by
not moving for Judge Hotham’s recusal. Martinez’s claim
that Judge Hotham was biased lacks merit, and the “[f]ailure
to raise a meritless argument does not constitute ineffective
assistance.” Boag v. Raines, 

769 F.2d 1341, 1344

 (9th Cir.
1985).

    A judicial bias claim requires facts sufficient to create
actual impropriety or an appearance of impropriety.
Greenway v. Schriro, 

653 F.3d 790, 806

 (9th Cir. 2011).
Martinez does not point to anything in the record that
                     MARTINEZ V. RYAN                       17

demonstrates actual impropriety by Judge Hotham. He
contends that Judge Hotham’s bailiff’s relationship with
Officer Martin’s widow created an appearance of
impropriety, but that argument is not supported by
precedent. When asked at oral argument for a case in which
a bailiff’s relationship to the victim’s family was found to
have created an appearance of impropriety, Martinez could
not provide an answer. The Supreme Court, for its part, has
recognized an appearance of impropriety in only a few cases
in which the judge had a direct pecuniary interest in the case,
was involved in a controversy with a litigant, or was part of
the accusatory process. See, e.g., Mayberry v. Pennsylvania,

400 U.S. 455

, 465–66 (1971) (judge whom the defendant
had insulted presided over contempt proceedings); In re
Murchison, 

349 U.S. 133, 137

 (1955) (judge acted as both
the grand jury and the trier of the accused); Tumey v. Ohio,

273 U.S. 510

, 532–34 (1927) (judge profited from every
defendant he convicted). None of those circumstances
existed here.

    At bottom, Martinez’s judicial bias claim is based on
unfounded speculation. He contends that Judge Hotham’s
decision to remove his bailiff from the courtroom during an
expert witness’s testimony “was merely the first public
manifestation as to how deep his bailiff’s feelings ran and
the judge’s sympathy for his bailiff and his concern that the
bailiff’s feelings might spill over inappropriately.” But
Martinez’s fanciful theory of bias cannot “overcome [the]
presumption of honesty and integrity in those serving as
adjudicators.” Withrow v. Larkin, 

421 U.S. 35, 47

 (1975).
As Judge Hotham explained to the parties during trial, he
asked Mills to remain outside the courtroom during an
expert’s testimony solely to prevent any later complaint that
Mills “reacted to the gory photographs in any inappropriate
manner.”
18                  MARTINEZ V. RYAN

     Because Martinez’s judicial bias claim lacks merit, his
trial counsel did not perform deficiently by not moving for
Judge Hotham’s recusal. See Boag, 

769 F.2d at 1344

.
Martinez’s claim that his appellate counsel deficiently
performed likewise fails, for “appellate counsel’s failure to
raise issues on direct appeal does not constitute ineffective
assistance when appeal would not have provided grounds for
reversal.” Wildman v. Johnson, 

261 F.3d 832, 840

 (9th Cir.
2001). We therefore affirm the district court’s denial of
Martinez’s IAC claim.

III.   Oscar Fryer Brady Claim

     Before the district court, Martinez argued for the first
time that the prosecution violated Brady v. Maryland by
failing to disclose impeachment evidence about Fryer, a
witness for the prosecution. 

373 U.S. 83

 (1963). The district
court denied the claim because Martinez did not establish
cause and prejudice to overcome the procedural default of
his Brady claim. We agree.

    Martinez argues that the prosecution violated its Brady
obligations in two ways. First, he argues that the prosecution
failed to disclose that Fryer was using drugs when he
testified at Martinez’s trial. Second, he argues that the
prosecution withheld evidence of benefits they bestowed on
Fryer in exchange for his testimony against Martinez. He
contends that the withheld evidence establishes cause and
prejudice to overcome the procedural default of his Brady
claim.

    Cause and prejudice necessary to overcome the default
of a Brady claim parallel the second and third elements of a
Brady violation. See Banks v. Dretke, 

540 U.S. 668, 691

(2004). Those elements are “[(2)] that evidence must have
been suppressed by the State, either willfully or
                     MARTINEZ V. RYAN                       19

inadvertently; and [(3)] prejudice must have ensued.”
Strickler v. Greene, 

527 U.S. 263, 282

 (1999). Thus, a
petitioner establishes cause when the reason for his failure to
bring a timely Brady claim is the government’s suppression
of the relevant evidence, and establishes prejudice when the
suppressed evidence is material for Brady purposes. Banks,

540 U.S. at 691

. Evidence is material “when there is a
reasonable probability that, had the evidence been disclosed,
the result of the proceeding would have been different.”
Cone v. Bell, 

556 U.S. 449, 470

 (2009).

   A. Fryer’s Illegal Drug Use

    Martinez’s first argument—that the government
improperly withheld evidence of Fryer’s drug use—relies on
his allegation that Fryer was under the influence of
methamphetamine on the day he testified against Martinez.
That allegation stems from the following facts. On
February 5, 1998, Fryer was charged with illegal drug use in
Gila County, Arizona. On February 23, 1998, Fryer pleaded
guilty to using amphetamine or methamphetamine between
August 18–20 and between November 14–17, 1997. In a
presentence report update filed on March 13, 1998, a
probation officer wrote that Fryer “stated that he ha[d] been
addicted to methamphetamine for at least the past 6 months.
He got to where he was using up to 4 grams of
methamphetamine a day.” That statement, Martinez argues,
demonstrates that Fryer was using methamphetamine on
September 9, 1997—when Fryer testified against Martinez.

    We acknowledge that evidence that a witness—
especially one as critical to the prosecution’s case as was
Fryer—“was using drugs during the trial would reflect on his
competence and credibility as a witness.” Benn v. Lambert,

283 F.3d 1040, 1056

 (9th Cir. 2002). But Martinez’s Brady
claim fails because he does not demonstrate that the
20                   MARTINEZ V. RYAN

prosecution knew, or had a duty to know, of Fryer’s drug use
or his drug convictions before the end of Martinez’s trial.

     Brady claims apply in situations that “involve[] the
discovery, after trial of information which had been known
to the prosecution but unknown to the defense.” United
States v. Agurs, 

427 U.S. 97, 103

 (1976) (emphasis added).
If the prosecution does not discover, or does not have a duty
to discover, certain evidence until after the trial ends, then
there can be no Brady claim against it even if exculpatory
evidence later surfaces. Several circuits have adopted this
commonsense conclusion. See, e.g., United States v.
Barroso, 

719 F. App’x 936

, 941 (11th Cir. 2018) (no Brady
violation when “there is no evidence the government
possessed that information prior to trial, much less
suppressed it”); United States v. Edwards, No. 97-5113,

1998 WL 172617, at *2

 (10th Cir. Apr. 14, 1998) (“The
government’s obligation under Brady cannot apply to
evidence not in existence at the time of the criminal
proceeding.”); United States v. Dimas, 

3 F.3d 1015

, 1019 n.3
(7th Cir. 1993) (“[L]ater developments in the investigation,
if any, are irrelevant because the question is whether the
result would have changed if the prosecutors disclosed the
evidence at the time [of trial], not whether the outcome
would differ if the case were tried today.”).

    We agree. Martinez’s trial ended on September 26,
1997, and Fryer was not charged with drug use until
February 5, 1998. Even assuming Maricopa County
prosecutors had a duty to discover the charges brought
against Fryer by Gila County, that duty did not arise until
after Martinez’s trial. Martinez identifies nothing else in the
record that suggests the prosecution knew of Fryer’s alleged
drug use before the end of Martinez’s trial. Because the
prosecution does not have an obligation under Brady to
                    MARTINEZ V. RYAN                       21

disclose exculpatory evidence it discovers after trial,
Martinez fails to establish cause.

   B. Benefits Bestowed on Fryer

    Martinez also alleges that the prosecution “withheld
evidence concerning benefits conferred on Fryer.” He
argues that, because Fryer testified against Martinez, he was
not charged for several crimes, including making a false
report to law enforcement, a domestic violence incident, and
possessing drug paraphernalia. Martinez also argues that
Fryer’s testimony caused the prosecution not to seek several
sentencing enhancements against Fryer.

    Martinez’s contentions, however, are wholly
speculative. He does not identify any evidence that shows
Fryer was not charged with crimes or that he was otherwise
treated favorably because of his testimony. Instead,
Martinez’s argument relies on the baseless theory that
“[k]eeping Fryer happy prior to Martinez’s capital
sentencing hearing was necessary to prevent any possibility
Fryer might recant his trial testimony.” We require more to
establish a Brady violation. See, e.g., Benn, 283 F.3d
at 1057–58 (evidence that the prosecution’s key witness was
released from jail during the defendant’s trial when he called
the prosecutor); Singh v. Prunty, 

142 F.3d 1157, 1162

 (9th
Cir. 1998) (evidence of an agreement to provide benefits to
witness).

    The only evidence of an agreement that Martinez
identifies is Fryer’s 1997 plea agreement, which required
him “to cooperate with [the] [Maricopa] county attorney’s
office in the prosecution of [Martinez’s] case.” That plea
agreement, however, was disclosed to Martinez and
introduced at his trial. Indeed, Martinez cross-examined
Fryer about the plea agreement and used it to impeach his
22                  MARTINEZ V. RYAN

testimony. That evidence, therefore, cannot support a Brady
violation.

    Because Martinez has failed to demonstrate that the
prosecution withheld any evidence of benefits conferred on
Fryer in exchange for his testimony against Martinez, he
fails to establish cause to overcome the procedural default of
his Brady claim. Accordingly, we affirm the district court’s
denial of that claim.

IV.    Rule 60(b) Motion

    After the district court denied Martinez’s habeas petition
and his motion to alter or amend the judgment, but before
Martinez filed his opening brief in this court, Martinez filed
a motion styled “request for indication whether [the] district
court would consider a rule 60(b) motion.” The district court
denied that motion. After we later remanded the case,
Martinez filed a renewed request for indication of whether
the district court would consider a Rule 60(b) motion for
reconsideration. The court denied that motion, and Martinez
appeals.

    We lack jurisdiction to review the district court’s denial
of Martinez’s motion. Our decision in Defenders of Wildlife
v. Bernal, 

204 F.3d 920

 (9th Cir. 2000), is controlling.
There, we stated:

       While this appeal was pending Defenders
       filed a motion under Federal Rule of Civil
       Procedure 60(b) . . . . On September 23,
       1998, the district court issued an order
       declining to entertain or grant the Rule 60(b)
       Motion. A district court order declining to
       entertain or grant a Rule 60(b) Motion is a
       procedural ruling and not a final
                     MARTINEZ V. RYAN                        23

       determination on the merits. Because there is
       no final judgment on the merits, the
       underlying issues raised by the 60(b) Motion
       are not reviewable on appeal.

Bernal, 

204 F.3d at 930

 (citation omitted).

    That is precisely what happened here. The district court
declined to consider Martinez’s Rule 60(b) motion. Because
that order was a procedural ruling, it is not reviewable on
appeal. See Scott v. Younger, 

739 F.2d 1464, 1466

 (9th Cir.
1984) (“[I]f the district court’s order is construed as a denial
of Scott’s request to ‘entertain’ the motion to vacate, that
denial is interlocutory in nature and not appealable.”). As a
result, we dismiss Martinez’s claim appealing the denial of
his request to consider a Rule 60(b) motion.

V. Jury Instruction on Premeditation

    Martinez contends that the court erred in instructing the
jury about what the government needed to establish to
demonstrate that Martinez committed first-degree murder.
In reading the instructions, the court stated, in relevant part:

       The crime of first degree murder requires
       proof of the following[:] . . . number three,
       the defendant acted with premeditation.
       “Premeditation” means that the defendant’s
       intention or knowledge existed before the
       killing long enough to permit reflection;
       however, the reflection differs from the intent
       or knowledge that conduct will cause death.
       It may be as instantaneous as successive
       thoughts in the mind, but it must be actual
       reflection, and it may be actual reflection, and
       it may be proved by direct or [circumstantial]
24                    MARTINEZ V. RYAN

        evidence. It is this period of reflection
        regardless of its length which distinguishes
        first degree murder from intentional or
        knowing second degree murder. An act is not
        done with premeditation if it is the instant
        effect of a sudden quarrel or heat of passion.

    Martinez contends that the instruction was flawed in two
ways. First, he argues that the instruction was erroneous
under Arizona law because it did not require the jury to find
that Martinez actually reflected before murdering Officer
Martin. Second, he argues that the court’s oral instruction
that premeditation “must be actual reflection, and it may be
actual reflection” was an “ambivalent statement [that]
permitted Martinez’s jury to find the element of
premeditation on less than proof beyond a reasonable
doubt.” We reject both arguments.

    When a challenge to jury instructions comes before us in
a habeas petition, “[t]he only question . . . is ‘whether the
ailing instruction by itself so infected the entire trial that the
resulting conviction violates due process.’” Estelle v.
McGuire, 

502 U.S. 62, 72

 (1991) (quoting Cupp v.
Naughten, 

414 U.S. 141, 147

 (1973)). “[T]he instruction . . .
must be considered in the context of the instructions as a
whole and the trial record.” 

Id.

 “If the charge as a whole is
ambiguous, the question is whether there is a ‘reasonable
likelihood that the jury has applied the challenged instruction
in a way that violates the Constitution.’” Middleton v.
McNeil, 

541 U.S. 433, 437

 (2004) (per curiam) (quoting
Estelle, 

502 U.S. at 72

). A “reasonable likelihood” is lower
than “more likely than not” but higher than a mere
“possibility.” See Boyde v. California, 

494 U.S. 370, 380

(1990).
                     MARTINEZ V. RYAN                         25

     Martinez relies heavily on State v. Ramirez to support his
first argument, but the facts in that case are distinct.

945 P.2d 376

 (Ariz. Ct. App. 1997).                There, the
premeditation instruction stated: “[T]he time for reflection
must be longer than the time required merely to form the
knowledge that conduct will cause death. It may be as
instantaneous as successive thoughts in the mind, and it may
be proven by circumstantial evidence.” 

Id. at 378

. The court
held that the instruction erred in two ways. First, it “fail[ed]
to be clear that premeditation requires actual reflection.” 

Id.

Second, the instruction stated that the time for reflection can
be “‘instantaneous as successive thoughts in the mind’ but
provided no balancing language to the effect that an act
cannot be both impulsive and premeditated.” 

Id.

    Neither of those errors was present in the jury
instructions in this case. Unlike in Ramirez, the court
specifically instructed that premeditation requires “actual
reflection.” And whereas the instruction in Ramirez did not
provide balancing language stating that an act cannot be
impulsive and premeditated, the instruction here did provide
such language: It stated that “[a]n act is not done with
premeditation if it is the instant effect of a sudden quarrel or
heat of passion.” That statement conveyed to the jury that
Martinez could not be found guilty of first-degree murder if
they believed he acted impulsively. Even if we assume that
the jury instructions were somehow erroneous, Martinez is
not entitled to relief, for he has not shown that the
premeditation instruction “so infected the entire trial that the
resulting conviction violate[d] due process.” Cupp, 

414 U.S. at 147

.

    Martinez’s second argument also falls short. He relies
on the fact that the court erroneously stated that the reflection
required for a finding of premeditation “may be actual
26                   MARTINEZ V. RYAN

reflection” after saying that it “must be actual reflection”
when reading the instructions to the jury. Such an oral
hiccup, however, did not violate Martinez’s due process
rights. Before the court read the instructions, the bailiff
distributed copies of the jury instructions to each juror, and
the court told them that they could “read along.” The written
instructions correctly stated that the jury had to find that
Martinez reflected before murdering Officer Martin.
Considering the totality of the circumstances—the jury
possessed copies of the instructions, the court correctly read
the phrase in the instructions (before misreading it), and the
prosecution twice stated during closing arguments that
premeditation requires actual reflection—we conclude that
the court’s oral misstatement did not cause Martinez’s
conviction to violate due process. See Estelle, 

502 U.S. at 72

. We deny Martinez’s claim challenging the jury
instructions.

VI.    Ineffective Assistance of Counsel (Failure to
       Retain Pathologist)

     In his federal habeas petition, Martinez argued for the
first time that his trial counsel was constitutionally deficient
by failing to retain an independent pathologist to impeach a
prosecution expert’s testimony. The district court denied his
claim because it was procedurally defaulted and Martinez
had not established prejudice to overcome the default.

   At trial, Dr. Phillip Keen, the Maricopa County Chief
Medical Examiner, testified about the results of an autopsy
on Officer Martin. He told the jury that, of the shots to
Officer Martin’s hand, back, neck, and head, the shot to his
head was fired last and may have occurred when Officer
Martin was already lying on the ground.
                     MARTINEZ V. RYAN                       27

    Martinez argues that, had his counsel retained an
independent pathologist to impeach Dr. Keen’s testimony
about the sequence of shots, the prosecution’s theory of
premeditation would be undermined. Martinez concedes
that his IAC claim is procedurally defaulted, but contends
that he can overcome that procedural default under Martinez
v. Ryan.

    In Martinez, the Supreme Court held that where a
petitioner fails to raise an IAC claim in state court, “a
procedural default will not bar a federal habeas court from
hearing a substantial claim of ineffective assistance at trial”
if (1) “state law requires prisoners to raise claims of
ineffective assistance of trial counsel ‘in an initial-review
collateral proceeding,’” and (2) “the default results from the
ineffective assistance of the prisoner’s counsel in the
collateral proceeding.” Davila v. Davis, 

137 S. Ct. 2058, 2065

 (2017) (quoting Martinez, 566 U.S. at 16–17). To
show that his claims are “substantial,” a petitioner must
demonstrate that they have “some merit.” Martinez,

566 U.S. at 14

. The parties do not dispute that Arizona law
required Martinez to raise his IAC claim in a collateral
proceeding, so our analysis focuses on whether Martinez’s
PCR counsel was ineffective. 

Id. at 4

. That necessarily
requires us to evaluate the strength of Martinez’s underlying
IAC claim. See Atwood v. Ryan, 

870 F.3d 1033, 1060

 (9th
Cir. 2017).

    Martinez’s trial counsel was not ineffective because,
even if the retention of an expert would have undermined the
prosecution’s theory of premeditation, Martinez was not
prejudiced. There is not a reasonable probability that the
jury would have reached a different verdict had Martinez’s
counsel retained an independent pathologist. There was
28                  MARTINEZ V. RYAN

significant evidence in the record supporting a finding that
Martinez acted with premeditation.

    Fryer testified that, before the shooting, Martinez told
him he had a warrant out for his arrest. When Martinez
revealed a handgun from underneath his shirt, Fryer asked
Martinez what it was for, to which Martinez responded “for
protection and if shit happens.” When Fryer saw a police car
and asked Martinez what he would do if he was stopped by
the police, Martinez responded that “he wasn’t going back
to jail.” When he was pulled over by Officer Martin,
Martinez was driving a stolen vehicle—a fact which he did
not dispute during trial. These facts all support the
prosecution’s argument that Martinez planned to murder
Officer Martin before he shot him.

    Moreover, Dr. Keen’s testimony was relatively weak
evidence of premeditation. The prosecution argued that his
testimony supported a finding that Martinez shot Officer
Martin “when he was down” as a “coup de grace.” But the
only portion of Dr. Keen’s testimony supporting that
assertion was his testimony that he believed Officer Martin’s
“head wound was last.” Dr. Keen qualified that testimony
by stating that it relied on hypothetical possibilities and
assumptions based on the evidence. The jury considered
those qualifications when assessing the reliability of Dr.
Keen’s testimony.

    Martinez’s impeachment of Dr. Keen also underscores
our conclusion that Martinez did not suffer prejudice. Upon
questioning by Martinez, Dr. Keen conceded that the
opinions he expressed at trial conflicted with what he had
said during a pretrial interview, in which he stated that “the
head, hand, and neck could have been [shot] at any sequence
with the back being the last shot.” Dr. Keen also admitted
that he had previously concluded that Officer Martin was
                    MARTINEZ V. RYAN                       29

standing when he was shot. Even without the testimony of
an opposing expert, therefore, the veracity and reliability of
Dr. Keen’s testimony was undermined.

    Because of the limited value of Dr. Keen’s testimony in
the prosecution’s case for premeditation, and because of the
significant other evidence presented at trial supporting
premeditation, Martinez’s trial counsel’s failure to retain an
independent expert did not prejudice Martinez. Martinez
therefore cannot establish that his PCR counsel was
ineffective for failing to raise the IAC claim. Because
Martinez fails to overcome the procedural default of his IAC
claim, we affirm the district court’s denial of that claim.

VII.   Ineffective Assistance of Counsel (Failure to
       Rebut the Prosecution’s Expert During
       Sentencing)

    Martinez also argued, again for the first time in his
habeas petition, that his trial counsel was deficient for a
different reason: He failed to recall an expert at sentencing
to rebut testimony by another expert retained by the
prosecution. He argues that he can establish cause and
prejudice under Martinez v. Ryan to overcome the
procedural default of this claim.

    At sentencing, Dr. Susan Parrish, an expert psychologist
retained by Martinez, testified that Martinez’s shooting of
Officer Martin resulted from Martinez’s post-traumatic
stress disorder (PTSD). Dr. Parrish testified that Martinez
demonstrated characteristics commonly “associated with
someone who comes from an environment where there was
a prolonged exposure to violence,” “[i]mpulsivity or failure
to plan,” “[i]rritability and aggressiveness,” and “[r]eckless
disregard for [the] safety of self and others.” Based on her
diagnosis, Dr. Parrish testified that she believed Martinez’s
30                  MARTINEZ V. RYAN

actions on the day of the shooting were “really more
reactive.” She testified that Martinez “felt he had no choice”
but to shoot Officer Martin.

    In rebuttal, the prosecution presented testimony by Dr.
Michael Bayless, another expert psychologist. Dr. Bayless
disagreed with Dr. Parrish’s diagnosis of PTSD. He testified
that Martinez suffered from antisocial personality disorder,
and thus “understands the rules and regulations. He just
chooses not to abide by them.” Dr. Bayless testified that
Martinez killed Officer Martin “because he didn’t want to go
back to prison.”

    Martinez argues that, had his counsel recalled Dr. Parrish
to rebut Dr. Bayless’s testimony, Dr. Parrish could have
established that Martinez was unable to appreciate the
wrongfulness of his conduct or conform his conduct to the
requirements of the law. That evidence would create “a
reasonable probability the Arizona Supreme Court would
have found [a] statutory mitigating factor [pursuant to
A.R.S. § 13-703(G)(1)] and imposed a life sentence,” rather
than affirm Martinez’s death sentence.

    Because of the overwhelming evidence introduced at
sentencing that Martinez could appreciate the wrongfulness
of his conduct, we conclude that Martinez does not establish
prejudice, and thus that he cannot overcome the procedural
default of his IAC claim. Even if Martinez’s trial counsel
had recalled Dr. Parrish to refute Dr. Bayless’s testimony,
the sentencing court likely would have concluded that
Martinez had not established the statutory mitigating
circumstance in § 13-703(G)(1).

    When sentencing Martinez, the court recognized the
inconsistency between the testimony of Dr. Parrish and Dr.
Bayless. The court determined, however, that “[Martinez]
                     MARTINEZ V. RYAN                       31

killed Officer Martin because he did not want to return to
prison as a result of a probation violation warrant.” The
court recounted several pieces of evidence that supported
such a finding: Martinez told Fryer that he had a warrant out
for his arrest and would not go back to prison; Martinez told
Fryer he had a gun in case something happened; Martinez
took Officer Martin’s service weapon after murdering him;
and Martinez committed another murder shortly after
murdering Officer Martin. As the court explained, “[t]hese
choices belie the notion that the homicide of Officer Martin
was the result of being in a dissociative state or a mere
impulsive reaction.”

    Moreover, Dr. Parrish’s rebuttal testimony would not
necessarily have established the statutory mitigating
circumstance, and thus would not have entitled Martinez to
relief. Dr. Parrish’s testimony focused on why Martinez’s
murder of Officer Martin resulted from PTSD. But in
Arizona, “a mere character or personality disorder alone is
insufficient to constitute a mitigating circumstance.” State
v. Brewer, 

826 P.2d 783, 802

 (Ariz. 1992); see also State v.
Clabourne, 

983 P.2d 748, 754

 (Ariz. 1999) (“In every case
in which we have found the (G)(1) factor, the mental illness
was ‘not only a substantial mitigating factor . . . but a major
contributing cause of [the defendant’s] conduct that was
“sufficiently substantial” to outweigh the aggravating
factors present.’” (alterations in original) (quoting State v.
Jimenez, 

799 P.2d 785, 800

 (Ariz. 1990))). Accordingly, the
other evidence in the record was sufficient to support the
sentencing court’s conclusion that Martinez failed to
establish the statutory mitigating circumstance in § 13-
703(G)(1).

    Because of the significant evidence introduced at
sentencing establishing that Martinez could appreciate the
32                   MARTINEZ V. RYAN

wrongfulness of his conduct and conform his conduct to the
requirements of the law, Martinez was not prejudiced by his
counsel’s failure to recall an expert to rebut the prosecution’s
witness. Martinez’s PCR counsel was therefore not
ineffective for failing to raise that claim. Because Martinez
cannot overcome the procedural default of his IAC claim, we
affirm the district court’s denial of that claim.

VIII. Application of the Causal Nexus Test During
      Sentencing

    Martinez next argues that the Arizona State Court
applied a “causal nexus” test, in violation of Eddings v.
Oklahoma, 

455 U.S. 104

 (1982), under which a
circumstance is not mitigating unless causally connected to
the commission of the crime. He contends that the court’s
failure to consider his family history as a mitigating
circumstance was an unreasonable application of clearly
established federal law.

    The Supreme Court has held that “a State [cannot],
consistent with the Eighth and Fourteenth Amendments,
prevent the sentencer from considering and giving effect to
evidence relevant to the defendant’s background or character
or to the circumstances of the offense that mitigate against
imposing the death penalty.” Penry v. Lynaugh, 

492 U.S. 302, 318

 (1989), abrogated on other grounds by Atkins v.
Virginia, 

536 U.S. 304

 (2002); see also Eddings, 

455 U.S. at 113

; Lockett v. Ohio, 

438 U.S. 586

, 606–08 (1978). “[I]t
is not enough simply to allow the defendant to present
mitigating evidence to the sentencer. The sentencer must
also be able to consider and give effect to that evidence in
imposing sentence.” Penry, 

492 U.S. at 319

.

    As a result, a sentencing court may not treat mitigating
evidence of a defendant’s background or character as
                      MARTINEZ V. RYAN                        33

“irrelevant or nonmitigating as a matter of law” just because
it lacks a causal connection to the crime. Towery v. Ryan,

673 F.3d 933, 946

 (9th Cir. 2012), overruled on other
grounds by McKinney v. Ryan, 

813 F.3d 798

 (9th Cir. 2015)
(en banc). The sentencer may, however, consider “causal
nexus . . . as a factor in determining the weight or
significance of mitigating evidence.” Lopez v. Ryan,

630 F.3d 1198, 1204

 (9th Cir. 2011), overruled on other
grounds by McKinney, 

813 F.3d 798

. “[T]he use of the
nexus test in this manner is not unconstitutional because
state courts are free to assess the weight to be given to
particular mitigating evidence.” Schad v. Ryan, 

671 F.3d 708, 723

 (9th Cir. 2011), overruled on other grounds by
McKinney, 

813 F.3d 798

. As the Court explained in
Eddings:

        Just as the State may not by statute preclude
        the sentencer from considering any
        mitigating factor, neither may the sentencer
        refuse to consider, as a matter of law, any
        relevant mitigating evidence. . . .       The
        sentencer, and the Court of Criminal Appeals
        on review, may determine the weight to be
        given relevant mitigating evidence. But they
        may not give it no weight by excluding such
        evidence from their consideration.

455 U.S. at 113–15.

    These principles bear on Martinez’s case. In McKinney,
we held that “[f]or a little over fifteen years [beginning in the
late 1980s], the Arizona Supreme Court routinely articulated
34                    MARTINEZ V. RYAN

and insisted on [an] unconstitutional causal nexus test.”3

813 F.3d at 815

. Under this test, “[a]s a matter of law, a
difficult family background or mental condition did not
qualify as a nonstatutory mitigating factor unless it had a
causal effect on the defendant’s behavior in committing the
crime at issue.” 

Id. at 816

. The Arizona Supreme Court
“finally abandoned its unconstitutional causal nexus test for
nonstatutory mitigation” in the mid-2000s. 

Id. at 817

.
McKinney included a string cite of cases in which the
Arizona Supreme Court had applied its unconstitutional
causal nexus test, which included Martinez’s case. 

Id. at 816

.

     Here, the Arizona Supreme Court stated:

         The trial court found that Martinez’[s] family
         background qualified as a non-statutory
         mitigating factor, but did not give it
         substantial weight . . .

         Although Dr. Parrish testified that Martinez
         adopted a “survival” state of mind due to his
         violent upbringing, this did not affect his
         conduct on August 15, 1995. There is simply
         no nexus between Martinez’[s] family history
         and his actions on the Beeline Highway. His
         family history, though regrettable, is not
         entitled to weight as a non-statutory
         mitigating factor.



     3
      “We did not say, however, that [the Arizona Supreme Court]
always applied it.” Greenway v. Ryan, 

866 F.3d 1094, 1095

 (9th Cir.
2017) (per curiam).
                    MARTINEZ V. RYAN                       35

    The court’s analysis demonstrates that it applied an
unconstitutional causal nexus test to Martinez’s family
history. Because it concluded that there was “no nexus
between Martinez’[s] family history and his actions on the
Beeline Highway,” it granted it no weight. Under Eddings,
that is erroneous. See Penry, 

492 U.S. at 318

.

   Having concluded that AEDPA is satisfied, we review
Martinez’s claim de novo. See Frantz v. Hazey, 

533 F.3d 724, 735

 (9th Cir. 2008) (en banc). Martinez has established
a Constitutional violation, so our analysis focuses on
whether Martinez was prejudiced. See Poyson v. Ryan,

879 F.3d 875, 891

 (9th Cir. 2018).

    Martinez can establish prejudice if the court’s error “had
[a] substantial and injurious effect or influence” on the
challenged decision. See Brecht v. Abrahamson, 

507 U.S. 619, 631

 (1993) (quoting Kotteakos v. United States,

328 U.S. 750, 776

 (1946)). He is not entitled to relief,
however, unless he can establish that the error “resulted in
‘actual prejudice.’” Davis v. Ayala, 

135 S. Ct. 2187, 2197

(2015) (quoting Brecht, 

507 U.S. at 637

); see also
McKinney, 

813 F.3d at 822

.

    We determine that Martinez was not prejudiced by the
court’s constitutional error. Several considerations lead us
to that conclusion.

    First, the Arizona Supreme Court considered Martinez’s
family history in its analysis of another mitigating factor:
impaired capacity. In that section of its opinion, the court
recounted Martinez’s “violent childhood,” which included
“Martinez and his sister, Julia, both suffer[ing] physical
abuse at the hands of their father. . . . To protect himself,
Martinez began sleeping with a knife.” The court also
recounted Dr. Parrish’s testimony that, on the day he was
36                      MARTINEZ V. RYAN

stopped by Officer Martin, “Martinez probably thought, ‘I’m
not going back to prison. This man intends to put me in
prison. It’s me or him [sic].’” Accordingly, the court appears
to have considered the family history evidence Martinez
argues they should have considered—albeit in the context of
a different mitigating circumstance—and decided not to
assign that family history great weight. Such a conclusion
did not violate the Constitution. See Hedlund v. Ryan,

854 F.3d 557

, 587 n.23 (9th Cir. 2017) (stating that, under
Eddings, “a court is free to assign less weight to mitigating
factors that did not influence a defendant’s conduct at the
time of the crime”); Styers v. Ryan, 

811 F.3d 292

, 298–99
(9th Cir. 2015) (holding that the Arizona Supreme Court did
not violate Eddings in assigning little weight to the
petitioner’s PTSD when it lacked a causal connection to the
crime).

      Second, although we review the Arizona Supreme
Court’s decision, the sentencing court’s analysis is
instructive. 4 There, the court “considered family history,”
but concluded that it should “not [be] given substantial
weight.” The sentencing court reasoned that “the domestic
violence and parental drug abuse ended 7 or 8 years before
the murder when [Martinez’s] father became very religious
. . . . [Martinez’s] mother testified that the parental drug

     4
       The last reasoned state court decision addressing Martinez’s causal
nexus claim is the Arizona Supreme Court’s decision affirming
Martinez’s death sentence on direct appeal. See Crittenden v. Ayers,

624 F.3d 943, 950

 (9th Cir. 2010). “We look to the decision of the
sentencing judge only to the degree it was adopted or substantially
incorporated by the Arizona Supreme Court.” McKinney, 

813 F.3d at 819

. Because the Arizona Supreme Court reviewed Martinez’s
sentence de novo and does not appear to have adopted the sentencing
judge’s reasoning, we review only the Arizona Supreme Court’s
decision.
                    MARTINEZ V. RYAN                       37

abuse was kept from the children and that it ended when they
moved to Globe.” This analysis illustrates how an objective
factfinder would have ruled had the Arizona Supreme Court
not committed an Eddings error. See Kayer v. Ryan,

923 F.3d 692, 724

 (9th Cir. 2019). Because Martinez’s
violent family history was far removed from the murder, we
conclude that the court would have accorded it little weight
as a mitigating circumstance.

    Third, this case is distinct from other cases in which we
have found prejudice. In Poyson v. Ryan, for example, the
Arizona Supreme Court “improperly disregarded evidence
concern[ing] the defendant’s traumatic childhood and
mental health issues.” 

879 F.3d at 892

. We found that
evidence—that the defendant had “suffered a number of
physical and developmental problems as a child,” was
“involuntarily intoxicated as a young child,” was “lured to
the home of a childhood friend and violently raped,” and had
survived the suicide of “the one true father figure” he had—
“particularly compelling.” 

Id.

 at 892–93. The evidence of
Martinez’s family history, although unfortunate, is not so
grim. Martinez does not claim to have suffered from mental
health issues and endured significantly less frequent and
severe physical abuse as a child.

    Our decision in Spreitz v. Ryan is also distinct. 

916 F.3d 1262

 (9th Cir. 2019). There, we found prejudice when the
court disregarded “evidence regarding [the defendant’s]
history of alcohol and substance abuse—spanning nearly
half his life by the time when he committed the crime at the
age twenty-two.” 

Id. at 1279

. Critically, we stated that the
mitigating evidence was “linked to his emotional
immaturity, another nonstatutory mitigating circumstance
recognized by the Arizona Supreme Court but described as
not ‘significant.’” 

Id.

 at 1280 (quoting State v. Spreitz,
38                   MARTINEZ V. RYAN

945 P.2d 1260, 1281

 (Ariz. 1997)). The court’s erroneous
application of the unconstitutional nexus standard therefore
“minimized the value of other mitigating evidence as well.”

Id. at 1281

.

    Not so here. As we have already noted, the court
recounted and considered Martinez’s family when
considering other mitigating factors. Martinez’s family
history bore no connection to his age, the other statutory
mitigating factor considered by the Arizona Supreme Court.
Unlike Spreitz, therefore, the Arizona Supreme Court was
not “left with a critical void in [Martinez’s] narrative”
because of its nexus rule; it considered Martinez’s family
history in other contexts and granted it little weight. 

Id. at 1281

.

    We also note that this case involves an aggravating factor
absent from cases in which we have found Eddings error:
The murder of an on-duty peace officer. See A.R.S. § 13-
703(F)(10). That factor, as the sentencing court noted,
“carries significant weight. The unprovoked murder of a
peace officer, so the defendant can avoid his obligation
under the law, is really no less than a personal declaration of
war against a civilized society.” The substantial weight of
that aggravating factor leads us to believe that Martinez’s
family history, had it been considered a mitigating factor,
would not have affected his death sentence.

    Because Martinez cannot demonstrate that the Eddings
error had a substantial and injurious effect on his sentence,
he cannot establish prejudice. Accordingly, Martinez is not
entitled to relief.
                    MARTINEZ V. RYAN                      39

IX.    Expansion of the Certificate of Appealability

      Martinez asks us to issue a COA as to one Brady claim
that the district court declined to certify. We may not issue
a COA unless the applicant “make[s] a substantial showing
of the denial of a constitutional right, a demonstration that
. . . includes showing that reasonable jurists could debate
whether . . . the petition should have been resolved in a
different manner or that the issues presented were ‘adequate
to deserve encouragement to proceed further.’” Slack v.
McDaniel, 

529 U.S. 473, 484

 (2000) (quoting Barefoot v.
Estelle, 

463 U.S. 880

, 893 n.4 (1983)). Because Martinez’s
Brady claim relates to evidence of premeditation, and
because we conclude that overwhelming evidence supported
the prosecution’s theory of premeditation, we decline to
issue a COA.

X. Motion to Stay Appeal and                 Remand      for
   Consideration of Brady Claim

    Having concluded that Martinez is not entitled to habeas
relief, we turn to his motion to remand. Martinez argues that
remand is warranted so the district court can consider “a red
[w]eekly [p]lanner belonging to, and annotated by, Mario
Hernandez, a prosecution witness at Martinez’s . . . trial.”
He contends that the planner, which Martinez discovered
after it was introduced into evidence during his separate
murder trial in California, demonstrates “that Hernandez
learned of Martinez’s arrest for the homicide of Officer
Martin from watching television news at 2:30 a.m. on
August 17, 1995 . . . rather than from a phone call Hernandez
purportedly answered from Martinez earlier that morning.”
Martinez argues that the planner would have impeached
Hernandez’s testimony that he answered a call from
Martinez earlier that morning in which Hernandez said he
“got busted for blasting a jura.” He concedes that “there was
40                   MARTINEZ V. RYAN

little question at the Arizona trial as to whether Martinez was
responsible for the officer’s death,” and argues only that the
planner would have proven a lack of premeditation.

    We decline to remand because, even if the prosecution
failed to disclose the planner to Martinez, the withheld
evidence did not prejudice Martinez. As we have concluded,
overwhelming evidence supported the prosecution’s
argument that Martinez acted with premeditation.

     Other considerations also support our decision to deny
Martinez’s motion to remand. Martinez argues that
introduction of the planner would have demonstrated that he
did not call Hernandez after the murder, but Martinez
introduced other evidence at trial to support that same
argument. Martinez summarized that evidence during his
closing argument: “[T]here is a problem with what
[Hernandez and Moreno] claim[] to have heard Mr. Martinez
say in a telephone call.” Martinez told the jury that, although
he allegedly called Hernandez around 1:00 a.m., “[w]e know
from several witnesses that at 1:00 o’clock Mr. Martinez is
still at the Indio County jail, and he’s in an interview room
there somewhere.” He asked the jury “if [it] makes any
sense at all that [the police] would give [] Martinez a
telephone without any supervision at all . . . . isn’t it a
reasonable inference . . . that some officer would have
overheard what was being said?” Martinez also argued that
Moreno, who testified about the call during Martinez’s trial,
had “a motive to lie” and “a motive to want to hurt []
Martinez.” Admission of the journal may have helped
Martinez further undermine the evidence of his phone call,
but it wouldn’t have added much.

    That is so because the journal is weak impeachment
evidence of the testimony that Martinez called Hernandez
after Officer Martin’s murder. Even if Hernandez’s journal
                    MARTINEZ V. RYAN                       41

entry is accurate and he learned of Martinez’s arrest on the
television news at 2:30 a.m., that doesn’t necessarily mean
Martinez didn’t call him in the early morning hours after the
murder. Perhaps Hernandez was simply mistaken about the
time of the call—indeed, during trial, Hernandez testified
that he referred to Martinez’s arrest on television while
speaking to Martinez, suggesting that he found out about
Hernandez’s arrest from television. Or perhaps the journal
entry demonstrates that Hernandez saw Martinez’s arrest on
television after speaking to Martinez by phone. In short, the
value of the journal as impeachment evidence isn’t nearly as
probative as Martinez makes it out to be.

    For these reasons, Martinez cannot establish that the
planner was material evidence. We decline to remand.

                      CONCLUSION

    We AFFIRM the district court’s denial of a writ of
habeas corpus as to Martinez’s claims relating to his first-
degree murder conviction and death sentence and DISMISS
for lack of jurisdiction Martinez’s claim that the court erred
in denying his request to consider a Rule 60(b) motion. We
DECLINE to expand the COA. We also DENY Martinez’s
motion to stay the appeal and remand for consideration of
another Brady claim.