Runningeagle v. Schriro

                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

SEAN BERNARD RUNNINGEAGLE,           
             Petitioner-Appellant,          No. 07-99026
               v.
                                             D.C. No.
                                          CV-98-01903-PGR
CHARLES L. RYAN, Arizona
Department of Corrections,                   OPINION
             Respondent-Appellee.
                                     
       Appeal from the United States District Court
                for the District of Arizona
    Paul G. Rosenblatt, Senior District Judge, Presiding

                  Argued and Submitted
         February 10, 2011—Pasadena, California

                    Filed July 18, 2012

   Before: Harry Pregerson, Kim McLane Wardlaw, and
              Carlos T. Bea, Circuit Judges.

                Opinion by Judge Wardlaw;
Partial Concurrence and Partial Dissent by Judge Pregerson




                           8233
                   RUNNINGEAGLE v. RYAN                8237




                        COUNSEL

Jon M. Sands, Federal Public Defender, and Jennifer Y. Gar-
cia and Ashley J. McDonald, Assistant Federal Public
Defenders, Phoenix, Arizona, for petitioner-appellant Sean
Bernard Runningeagle.

Terry Goddard, Attorney General; Kent Cattani, Chief Coun-
sel, Capital Litigation Section; and Jon G. Anderson, Assis-
tant Attorney General, Phoenix, Arizona, for respondents-
appellees Charles L. Ryan et al.
8238                    RUNNINGEAGLE v. RYAN
                               OPINION

WARDLAW, Circuit Judge:

   Sean Bernard Runningeagle and his cousin Corey Tilden
were convicted of murdering Herbert and Jacqueline Williams
after they pursued the Williamses into their home in the early
morning of December 6, 1987. The state trial court imposed
a sentence of death upon Runningeagle, but not upon Tilden.
Runningeagle’s direct and collateral appeals were rejected by
the state courts. Runningeagle now appeals the district court’s
denial of his federal petition for a writ of habeas corpus. We
affirm the district court’s decision to deny the petition.

                                     I.

   We take the facts as recited by the Arizona Supreme Court
in its 1993 opinion, State v. Runningeagle, 

859 P.2d 169

(Ariz. 1993), affirming Runningeagle’s conviction and sen-
tence and denying Runningeagle’s petition for post-conviction
relief:1

     In the early morning of December 6, 1987, Run-
   1
     Because this statement of facts is drawn from the Arizona Supreme
Court’s decision, we afford it a presumption of correctness that may be
rebutted only by clear and convincing evidence. See 

28 U.S.C. § 2254

(e)(1); Moses v. Payne, 

555 F.3d 742

, 746 n.1 (9th Cir. 2009). Run-
ningeagle argues against this presumption, citing the Arizona courts’
repeated statements that its recitation of facts in criminal appellate opin-
ions presents the facts “in the light most favorable to sustaining the ver-
dict.” See, e.g., State v. Dann, 

74 P.3d 231

, 236 n.1 (Ariz. 2003) (citing
State v. Gallegos, 

870 P.2d 1097, 1105

 (Ariz. 1994)). Runningeagle’s con-
tention is not supported by any federal case law—and in any event, the
Arizona standard is equivalent to the standard for sufficiency of the evi-
dence federal courts apply on habeas review. See, e.g., Jackson v. Vir-
ginia, 

443 U.S. 307, 319

 (1979) (“[T]he relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.”).
                RUNNINGEAGLE v. RYAN                     8239
ningeagle, Tilden, and their two friends Orva and
Milford Antone, were driving around Phoenix. Run-
ningeagle wanted parts for his car, so the foursome
stopped at the Davis house, which had a car parked
outside. Runningeagle, Tilden and Orva got out of
the car, while Milford remained passed out drunk in
the back seat. Runningeagle used his large hunting
knife to remove two carburetors from the Davis car.
Orva put them and an air scoop in the trunk of Run-
ningeagle’s car. Tilden and Runningeagle also stole
a floor jack and tool box. Orva took a bicycle from
the open garage.

Herbert and Jacqueline Williams, an elderly couple,
lived next door to the Davises. Mr. Williams came
out of his house and told the young men to leave or
he would call the police. Orva returned to the car,
but Runningeagle and Tilden approached Mr. Wil-
liams. Runningeagle concealed his knife by his side.
Tilden carried a large, black flashlight. Runningeagle
then began to tease and scare Mr. Williams with the
knife. Mr. Williams retreated and told Runningeagle
to put the knife away. Mrs. Williams then came out
of the house and yelled at them. Tilden confronted
Mrs. Williams, argued with her, and then hit her on
the side of the head with the flashlight. Mr. Williams
told them to leave his wife alone, and helped her
back into the house. Runningeagle broke through the
Williams’ door with a tire iron, and he and Tilden
barged in.

The noise awakened a neighbor, who heard Mrs.
Williams crying and the words “bring him in” spo-
ken by a tall, young man he saw standing in the Wil-
liams carport. The neighbor called “911,” but by the
time the police arrived, Mr. and Mrs. Williams were
dead. Mr. Williams suffered several head injuries
and five stab wounds, three of which were fatal. Mrs.
8240                RUNNINGEAGLE v. RYAN
    Williams also suffered several head injuries, one of
    which fractured her skull and was possibly fatal, in
    addition to four stab wounds, three of which were
    fatal.

    The police searched the Williams home. The drawer
    in which Mrs. Williams stored her jewelry was open
    and some jewelry was missing. They found an empty
    purse, blood drops and two bloody shoe print pat-
    terns. They discovered Runningeagle’s palm print on
    the clothes dryer next to the bodies.

    Runningeagle discussed the crimes on several occa-
    sions before his arrest. He told his girlfriend that he
    had been in a fight with two people and had hit them
    “full-force.” He showed her his car trunk full of the
    stolen property. He showed the hood scoop and car-
    buretors to another friend. Tilden, too, spoke about
    the crimes and informed Runningeagle that an
    account of the burglary was on the radio and that
    “they got there an hour after we left.”

    When the defendants were arrested, the police found,
    among other things, the Davis air scoop with Run-
    ningeagle’s prints on it, two carburetors, the tool
    box, Mrs. Williams’ wallet and college pin, a large
    black flashlight with Tilden’s prints on it, and the
    Davis bicycle with Runningeagle’s prints on the
    wheel rim. A Phoenix Police Department criminalist
    matched Runningeagle’s shoes with the bloody shoe
    prints found at the Williams house, and also found
    that an inked print of Tilden’s shoes made a pattern
    similar to other shoe prints at the house.

    Runningeagle, Tilden, and Orva Antone were
    indicted on two counts of first degree murder, and
    one count each of first degree burglary of a resi-
    dence, second degree burglary of a residence, third
                    RUNNINGEAGLE v. RYAN                    8241
    degree burglary of a car, theft of property valued
    between $500 and $1000, and theft of property val-
    ued between $250 and $500. Orva Antone pleaded
    guilty to burglary and testified for the state at the
    joint trial.

Runningeagle, 

859 P.2d at 171-72

.

   After a five-week trial, Runningeagle and Tilden were con-
victed on July 27, 1988. Runningeagle was found guilty of
two counts of first degree murder, two counts of theft, and
one count each of first degree burglary, second degree bur-
glary, and third degree burglary. 

Id. at 171

. Tilden was con-
victed of the same charges except for third degree burglary.

Id.

 After several joint sentencing hearings, Runningeagle was
sentenced to death on the murder convictions and to prison
terms on the non-capital convictions. 

Id.

 Tilden was sentenced
to life terms on the murder charges and to additional prison
terms, to be served consecutively, on the remaining counts.

Id.

   The procedural history of this appeal is both lengthy and
complicated by the many claims asserted in the numerous
state proceedings. However, the district court accurately set
forth the procedural background, and we see no need to re-
plow the same ground:

    While [Runningeagle’s] direct appeal was pending
    he filed, pro se, a Petition for Post-Conviction Relief
    [PCR] pursuant to Rule 32 of the Arizona Rules of
    Criminal Procedure. The Arizona Supreme Court
    revested jurisdiction in the trial court to resolve the
    PCR. The trial court appointed counsel, who filed a
    Supplemental PCR and a Second Supplemental
    PCR. The trial court summarily denied post-
    conviction relief. Petitioner moved for rehearing,
    which also was denied. Petitioner then sought review
    in the Arizona Supreme Court. The Arizona
8242               RUNNINGEAGLE v. RYAN
    Supreme Court granted review and consolidated
    Petitioner’s PCR claims with his direct appeal
    claims. The Arizona Supreme Court affirmed Peti-
    tioner’s convictions and sentences and denied post-
    conviction relief. Petitioner moved for reconsidera-
    tion, which was denied.

    Petitioner, pro se, moved the Arizona Supreme Court
    to discharge his counsel and proceed pro se. The
    supreme court granted counsel’s motion to withdraw
    and granted Petitioner’s motion to proceed pro se. A
    pro se writ of certiorari was filed and denied.

    Thereafter, the Arizona Supreme Court issued its
    mandate and filed in the trial court a Notice of PCR
    on Petitioner’s behalf. The trial court allowed Peti-
    tioner to continue to proceed pro se. Petitioner did
    not comply with the deadline for filing a second
    PCR petition, and the trial court summarily dis-
    missed the post-conviction proceedings.

    Next, Petitioner filed a pro se petition for writ of
    habeas corpus in [the District] Court. The Court
    appointed counsel, who filed an amended petition.
    The Court dismissed the amended petition without
    prejudice, finding that it presented both exhausted
    and unexhausted claims and concluding that it was
    not clear whether state post-conviction remedies
    remained available.

    Meanwhile, Petitioner initiated his third PCR pro-
    ceeding in state court. His third PCR petition ulti-
    mately raised forty claims. The PCR court
    summarily dismissed the petition. Petitioner moved
    for rehearing, which was denied. Petitioner sought
    review in the Arizona Supreme Court, which also
    was denied.
                    RUNNINGEAGLE v. RYAN                     8243
    Petitioner commenced the instant action by moving
    for appointment of counsel. The Court appointed
    counsel and Petitioner filed an Amended Petition for
    Writ of Habeas Corpus. Respondents filed an
    Answer limited to the procedural status of Petition-
    er’s claims.

    While the procedural status of Petitioner’s claims
    was under advisement, the Ninth Circuit Court of
    Appeals issued Smith v. Stewart, 

241 F.3d 1191

 (9th
    Cir. 2001), calling into question Arizona’s doctrine
    of procedural default. This Court deferred its ruling
    on the procedural status of Petitioner’s claims pend-
    ing further review of Smith. The United States
    Supreme Court reversed. Contemporaneously, the
    Supreme Court decided Ring v. Arizona, 

536 U.S. 584

 (2002), which found Arizona’s death penalty
    sentencing scheme unconstitutional because judges
    rather than juries determined the factual existence of
    the statutory aggravating circumstances that ren-
    dered a defendant eligible for the death penalty. In
    response, Petitioner moved this Court for a stay of
    these habeas proceedings so that he could return to
    state court and pursue post-conviction relief based
    upon Ring. The Court granted the stay with respect
    to Petitioner’s sentencing claims but denied Petition-
    er’s request to stay his conviction-related claims.

    Subsequently, in an interim Order, the [District]
    Court ruled on the procedural status of Petitioner’s
    conviction-related claims. In 2004, the United States
    Supreme Court held that Ring does not apply retro-
    actively. Thereafter [the District] Court vacated its
    stay of the sentencing-related claims, issued an
    Order resolving their procedural status, and ordered
    merits briefing.

On November 27, 2007, the district court denied Run-
ningeagle’s remaining claims on the merits, and concluded
8244                RUNNINGEAGLE v. RYAN
that Runningeagle was not entitled to evidentiary develop-
ment on any claim. The district court also denied a certificate
of appealability, concluding that “reasonable jurists applying
the standard of review set forth in [its decision] could not
debate its resolution of the merits” of Runningeagle’s claims.
Runningeagle appealed, and on February 24, 2009, a Ninth
Circuit judge, citing “the low standard for granting a certifi-
cate of appealability,” certified five issues for appeal. Run-
ningeagle then filed his timely opening brief, addressing four
of those five certified issues.

                              II.

   We review the district court’s denial of the habeas petition
de novo and its findings of fact for clear error. Thompson v.
Runnel, 

621 F.3d 1007, 1013

 (9th Cir. 2010). Runningeagle
filed his amended petition after the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). Accordingly, the provisions of AEDPA govern
consideration of his claims. Under AEDPA,

    An application for a writ of habeas corpus on behalf
    of a person in custody pursuant to the judgment of
    a State court shall not be granted with respect to any
    claim that was adjudicated on the merits in State
    court proceedings unless the adjudication of the
    claim—

         (1) resulted in a decision that was contrary
         to, or involved an unreasonable application
         of, clearly established Federal law, as deter-
         mined by the Supreme Court of the United
         States; or

         (2) resulted in a decision that was based on
         an unreasonable determination of the facts
         in light of the evidence presented in the
         State court proceeding.
                         RUNNINGEAGLE v. RYAN                          8245

28 U.S.C. § 2254

(d). Federal habeas relief may not be granted
for claims subject to § 2254(d) “unless it is shown that the
earlier state court’s decision ‘was contrary to’ federal law
then clearly established in the holdings of [the Supreme]
Court; or that it ‘involved an unreasonable application of’
such law; or that it ‘was based on an unreasonable determina-
tion of the facts’ in light of the record before the state court.”
Harrington v. Richter, 

131 S. Ct. 770, 785

 (2011) (citations
omitted).

                                    III.

   Runningeagle argues that prosecutors withheld evidence
obtained from Manuel Melendez, a former cell-mate of Til-
den’s, in violation of Brady v. Maryland, 

373 U.S. 83

 (1963).
Relying on Melendez’s testimony at a hearing in a separate
criminal prosecution against Melendez and a note Run-
ningeagle’s first habeas lawyer reportedly found in the state’s
criminal file,2 Runningeagle maintains that Melendez may
have told prosecutors that Tilden committed the murders
alone. Runningeagle cannot make out a Brady claim because
he can only speculate as to what Melendez, who is now
deceased, told prosecutors, and so cannot demonstrate that
   2
     On July 19, 2006, Kyle Marie Wesendorf, an attorney who worked on
Runningeagle’s first habeas petition, signed an affidavit stating that in
early 1995 she found an unsigned note reading “TILDEN THE KILLER”
in the criminal file maintained by the Maricopa County Attorney’s Office.
Runningeagle asked the district court to expand the record to include the
affidavit, which was never presented to the state courts. The district court
refused, citing 

28 U.S.C. § 2254

(e)(2). Apart from the evidentiary
concerns—the note, if it existed, was unsigned and ambiguous, and is
linked to prosecutors only by Wesendorf’s speculation—the affidavit is
not relevant because it was not presented to the state courts. Runningeagle
concedes that the note is not itself Brady material, and so does not com-
prise the basis for a separate Brady claim, but argues that it might support
his claim about Melendez’s statements. However, where, as here, the state
courts adjudicated a claim on the merits, review under 

28 U.S.C. § 2254

(d)(1) “is limited to the record that was before the state court.” Cul-
len v. Pinholster, 

131 S. Ct. 1388, 1398

 (2011).
8246                 RUNNINGEAGLE v. RYAN
any withheld evidence would have been favorable or material.
The Arizona courts’ denial of this claim was therefore not an
unreasonable application of or contrary to clearly established
law. See 

28 U.S.C. § 2254

(d)(1).

                               A.

   The facts relevant to Runningeagle’s Brady claim are as
follows: Runningeagle, Tilden, and Orva Antone were
arrested on December 19, 1987. While awaiting trial, Tilden,
who was represented by the Maricopa County Public Defend-
er’s Office, was housed in a cell with Melendez, who was rep-
resented by both the public defender’s office and outside
counsel. Through his public defender, Melendez communi-
cated with prosecutors about the murders of Herbert and Jac-
queline Williams, and offered to testify in exchange for a plea
agreement in his own criminal case. After prosecutors had
spoken with Melendez repeatedly, however, Antone agreed to
testify against his co-defendants, and prosecutors told
Melendez that they did not need his testimony.

    Because Melendez was a potential witness against Tilden
and both were represented by different counsel from the same
public defender’s office, Tilden’s public defense counsel, on
April 20, 1988, filed a “motion to determine counsel” to
ascertain whether he was required to withdraw from represen-
tation of Tilden given the conflict between the public defend-
ers that arose from inmate Melendez’s discussions with
Tilden’s prosecutors. Tilden’s attorney served the motion
upon Runningeagle’s counsel. The motion papers recounted
that prosecutors had been investigating whether Melendez
“had knowledge of information concerning the allegations
against [Tilden] . . . [and] would be in a position to testify
. . . .” Further, the trial judge assigned to Melendez’s criminal
case had ordered Melendez’s outside counsel to take over
Melendez’s representation to screen out the public defender’s
office. However, Tilden’s counsel had been subsequently
informed that the prosecution no longer intended to call
                    RUNNINGEAGLE v. RYAN                   8247
Melendez at Tilden’s trial. The trial judge ruled that there was
no conflict of interest because the prosecution had decided not
to call Melendez as a witness.

   Melendez subsequently entered into a plea agreement in his
case, but, following Runningeagle’s and Tilden’s convictions,
moved to withdraw his guilty plea. At a July 29, 1988, hear-
ing on this motion, Melendez testified that he had gained
information about the murders from Tilden and that he had
shared that information during three meetings with homicide
detectives and prosecutors. However, Melendez never testi-
fied precisely as to what information Tilden had shared with
him or what information he shared with prosecutors. In April
of 1988, around the time Antone agreed to testify, prosecutors
stopped meeting with Melendez. Melendez testified that “it
was specifically expressed to me by the prosecution and
homicide detectives that they wanted to make the three people
—they didn’t want any one of them to turn over on any one
person” and that “they wanted to convict all three of the
charges.”

   Although prosecutors told Tilden’s attorneys about their
meetings with Melendez, they never directly informed Run-
ningeagle’s counsel and they never provided Runningeagle
with any information about what Melendez said. Run-
ningeagle’s attorney received a copy of the motion to deter-
mine counsel from Tilden. Therefore, Runningeagle’s counsel
was on notice that Melendez had been communicating with
the prosecutors and was a potential witness against Tilden.
However, he did not investigate further by contacting or inter-
viewing Melendez or attempting to obtain any Brady material
specifically regarding Melendez from the detectives and pros-
ecutors.

                              B.

  As an initial matter, we must determine whether the Ari-
zona courts denied this claim on the merits, or instead deter-
8248                 RUNNINGEAGLE v. RYAN
mined that the claim was procedurally defaulted under state
law because Runningeagle failed to raise it until his third state
PCR. We review a denial on the merits under AEDPA to
determine whether it was an unreasonable application of
clearly established federal law. See Richter, 

131 S. Ct. at 785

.
However, we would not be able to review the state court’s
conclusion that this claim was procedurally defaulted under
Arizona law. See Ylst v. Nunnemaker, 

501 U.S. 797, 801

(1991) (“When a state-law default prevents the state court
from reaching the merits of a federal claim, that claim can
ordinarily not be reviewed in federal court.”).

   In ruling on Runningeagle’s third PCR, the Arizona Supe-
rior Court found that the Brady claim was “precluded pursu-
ant to [Arizona Rule of Criminal Procedure] 32.2(a)(3),”
which precludes relief based on any ground that “has been
waived at trial, on appeal, or in any previous collateral pro-
ceeding.” While this ruling was clearly on procedural default
grounds, “[s]tate procedural bars are not immortal . . . [and]
may expire because of later actions by state courts.” Ylst, 

501 U.S. at 801

. Ruling on Runningeagle’s subsequent request for
clarification, the court did not adhere to its procedural-default
ruling, but instead stated that the Brady claim did not satisfy
the requirements of Arizona Rule of Criminal Procedure
32.1(e). Rule 32.1(e) provides grounds for post-conviction
relief if “[n]ewly discovered material facts probably exist and
such facts probably would have changed the verdict or sen-
tence.” Facts are “newly discovered” and “material” if: (1)
they were discovered after trial; (2) the defendant exercised
due diligence in securing them; and (3) they “are not merely
cumulative or used solely for impeachment, unless the
impeachment evidence substantially undermines testimony
which was of critical significance at trial such that the evi-
dence probably would have changed the verdict or the sen-
tence.” Ariz. R. Crim. P. 32.1(e). The court then summarily
dismissed the claim “pursuant to [Arizona Rule of Criminal
Procedure] 32.6(c),” which requires courts considering post-
conviction relief petitions to first “identify all claims that are
                        RUNNINGEAGLE v. RYAN                         8249
procedurally precluded under this rule,” and then, “after iden-
tifying all precluded claims,” dismiss any petition if the court
“determines that no remaining claim presents a material issue
of fact or law which would entitle the defendant to relief
under this rule and that no purpose would be served by any
further proceedings.”

   The state court decisions are ambiguous, and so whether
the Arizona courts denied this claim on the merits is a close
question. The Arizona Superior Court’s initial dismissal rely-
ing on the procedural default rule of Rule 32.2(a)(3) was fol-
lowed by a holding relying on Rule 32.1(e), which functions
as a procedural-default rule, but which also addresses the rele-
vant merits of facts discovered after trial. The court then sum-
marily dismissed the claim under Rule 32.6, which addresses
both claims that are procedurally defaulted and claims that do
not succeed on the merits. We rely on the “presumption of a
merits determination when it is unclear whether a decision
appearing to rest on federal grounds was decided on another
basis.” Richter, 

131 S. Ct. at 784

-85 (citing Harris v. Reed,

489 U.S. 255, 265

 (1989)). Accordingly, we presume that the
Arizona Superior Court denied this claim on the merits, and
review that denial to determine whether the state court unrea-
sonably applied clearly established federal law.3 

Id.

                                    C.

   [1] In Brady, the Supreme Court held that “[t]he suppres-
sion by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is mate-
rial either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.” 

373 U.S. at 87

. Brady
violations have three components: “The evidence at issue
must be favorable to the accused, either because it is exculpa-
  3
   We may deny the Brady claim on the merits “notwithstanding the fail-
ure of the applicant to exhaust the remedies available in the courts of the
State.” 

28 U.S.C. § 2254

(b)(2).
8250                 RUNNINGEAGLE v. RYAN
tory, or because it is impeaching; that evidence must have
been suppressed by the State, either willfully or inadvertently;
and prejudice must have ensued.” Strickler v. Greene, 

527 U.S. 263, 281-82

 (1999). As we have observed, “[t]he terms
‘material’ and ‘prejudicial’ are used interchangeably in Brady
cases.” Benn v. Lambert, 

283 F.3d 1040

, 1053 n.9 (9th Cir.
2002) (“Evidence is not ‘material’ unless it is ‘prejudicial,’
and not ‘prejudicial’ unless it is ‘material.’ Thus, for Brady
purposes, the two terms have come to have the same mean-
ing.”). Evidence is material under Brady “when there is a rea-
sonable probability that, had the evidence been disclosed, the
result of the proceeding would have been different.” Cone v.
Bell, 

129 S. Ct. 1769, 1783

 (2009) (citing United States v.
Bagley, 

473 U.S. 667, 682

 (1985)).

   Thus, Runningeagle must demonstrate that Melendez’s
statements were both favorable and material. Strickler, 

527 U.S. at 281-82

. However, to state a Brady claim, he is
required to do more than “merely speculate” about what
Melendez told prosecutors. See Wood v. Bartholomew, 

516 U.S. 1, 6, 8

 (1995) (“[W]here, as in this case, a federal appel-
late court . . . grants habeas relief on the basis of little more
than speculation with slight support, the proper delicate bal-
ance between the federal courts and the States is upset to a
degree that requires correction.”); see also Barker v. Fleming,

423 F.3d 1085, 1099

 (9th Cir. 2005) (“The mere possibility
that an item of undisclosed information might have helped the
defense, or might have affected the outcome of the trial, does
not establish ‘materiality’ in the constitutional sense.”) (quot-
ing United States v. Croft, 

124 F.3d 1109, 1124

 (9th Cir.
1997)); Downs v. Hoyt, 

232 F.3d 1031, 1037

 (9th Cir. 2000)
(rejecting a Brady claim in part because the petitioner’s argu-
ments were speculative); United States v. Abonce-Barrera,

257 F.3d 959, 970

 (9th Cir. 2001) (finding that evidence was
not material under Brady where the defendant had only “a
hunch” that the evidence would be useful).

  [2] While evidence that Tilden alone killed the Williamses
would have been favorable and material, ultimately Run-
                     RUNNINGEAGLE v. RYAN                    8251
ningeagle’s claim that Melendez pointed the finger solely at
Tilden is based only on speculation. The transcript of
Melendez’s hearing on his request to withdraw his guilty plea
shows only that he provided prosecutors with information
obtained from Tilden, and that the government declined to use
him as a witness once Antone, a co-defendant, turned on the
other two defendants. As Runningeagle acknowledges in his
reply brief, “it remains difficult . . . to develop the exact con-
tours of the Brady claim because the State has still never dis-
closed any of the evidence provided by Melendez . . . .” In
attempting to demonstrate that Melendez’s statements were
favorable, or even admissible, Runningeagle therefore resorts
to inference and supposition. To demonstrate that Melendez’s
statements would have been exculpatory, for example, Run-
ningeagle argues that prosecutors would not have met with
Melendez repeatedly if the statements were useless. Even if
Runningeagle is correct that Melendez’s statements were
valuable, however, Runningeagle still cannot prove what
Melendez actually said.

   [3] While we can infer that Melendez would have impli-
cated Tilden, we have no way of knowing that his testimony
would exculpate Runningeagle—and even if Melendez’s testi-
mony did tend to exculpate, such testimony by a jailhouse
informant, a notoriously unreliable source, was unlikely to
have changed the outcome of the proceedings, either at trial
or, particularly, during sentencing by the judge. See Cone,

129 S. Ct. at 1783

; Hon. Stephen S. Trott, Words of Warning
for Prosecutors Using Criminals as Witnesses, 

47 Hastings L.J. 1381

, 1383-85 (1996) (discussing the perils of witness
testimony at trial from criminals who “are likely to say and
do almost anything to get what they want, especially when
what they want is to get out of trouble with the law”). The
evidence against Runningeagle was substantial: the police
found Runningeagle’s palm print on the clothes dryer next to
the victims’ bodies and matched Runningeagle’s shoes with
the bloody shoe prints found at the house. Runningeagle, 

859 P.2d at 171-72

. Runningeagle discussed the crimes several
8252                   RUNNINGEAGLE v. RYAN
times before his arrest and told his girlfriend—who testified
at trial, and to whom he showed his car trunk full of the prop-
erty stolen from the Williamses—that “he had been in a fight
with two people and had hit them ‘full-force.’ ” 

Id.

 When the
police arrested Runningeagle, they found the Williamses’
stolen property. 

Id.

 The evidence is even stronger in light of
Antone’s testimony that Runningeagle taunted and threatened
the Williamses with his knife, waved the knife at them as they
retreated, and then broke through the Williamses’ door with
a tire iron after the Williamses tried to get away. Id.4 There
was more than sufficient evidence upon which a rational trier
of fact could have concluded that Runningeagle was guilty of
the murders. Assuming that Melendez’s statements implicated
Tilden, those statements would have added to the evidence
supporting Tilden’s conviction, and not materially detracted
from the overwhelming evidence of Runningeagle’s guilt.

   [4] The failure of Runningeagle’s counsel to investigate
after receiving a copy of Tilden’s motion for determination of
counsel and learning about the existence of an informant who
was willing to testify against Tilden may well have been both
deficient and prejudicial. That said, Runningeagle does not
make a claim of ineffective assistance of counsel based on his
attorney’s decision not to investigate after receiving that
motion, so we do not consider this claim. However, we note
that the government has an independent obligation to provide
Brady material if it exists, and trial counsel did make a
request for all Brady material. At this point in a long proce-
dural history, however, as counsel for Runningeagle con-
cedes, it cannot be known whether exculpatory or impeaching
material exists, or whether it ever existed. As Runningeagle
  4
   Runningeagle argues that in weighing the evidence, we should disre-
gard Antone’s testimony, because the prosecutor’s statement during open-
ing that Antone would testify truthfully constituted improper vouching.
This vouching claim, which the Arizona state court found procedurally
defaulted, was not certified for appeal, and so is not before us. See 

28 U.S.C. § 2253

(c)(1). Accordingly, there is no reason for us to disregard
Antone’s testimony.
                        RUNNINGEAGLE v. RYAN                         8253
can only speculate as to what Melendez told prosecutors,
Runningeagle cannot demonstrate that Melendez’s statements
were exculpatory or useful for impeachment, or that there is
a reasonable probability that had Melendez’s statements been
disclosed, the outcome of the trial or of the sentencing would
have been different. Because Runningeagle cannot make out
a Brady claim, the state court’s denial of his claim was not an
unreasonable application of clearly established federal law.
See Strickler, 

527 U.S. at 281-82

.

                                    D.

   Even if we were to conduct de novo review of the Brady
claim, limited to the sentencing phase,5 we could not agree on
this record that “there is a reasonable probability that, had the
evidence been disclosed, the result of the proceeding would
have been different.” Cone, 

129 S. Ct. at 1783

 (citing United
States v. Bagley, 

473 U.S. 667, 682

 (1985)).
  5
    Judge Pregerson, in his dissent, agrees that the evidence of Run-
ningeagle’s guilt was overwhelming. With regard to sentencing, he argues
that the Arizona Superior Court applied an erroneous materiality standard
to the Brady claim and that the habeas denial was thus contrary to clearly
established federal law. With respect for Judge Pregerson’s views, how-
ever, we are required to use a “highly deferential standard for evaluating
state-court rulings, which demands that state-court decisions be given the
benefit of the doubt.” Pinholster, 

131 S. Ct. at 1398

. The Arizona court
could have found that no material facts were “newly discovered” under
Rule 32.1(e), and denied the claim on that ground. Runningeagle’s counsel
had contemporaneous notice that Melendez was a potential witness against
Tilden from the motion to determine counsel. Therefore, “the Government
d[id] not commit a Brady violation by not bringing the evidence to the
attention of the defense.” Raley v. Ylst, 

470 F.3d 792, 804

 (9th Cir. 2006)
(quotation omitted). Melendez was alive and available at that time and
Runningeagle could have, through the exercise of minimal diligence,
secured an interview or testimony from him. Any post-trial facts averred
here are thus not “newly discovered” under Rule 32.1; therefore, regard-
less of the correctness of the materiality standard, under Arizona law, the
Brady claim lacked merit.
8254                    RUNNINGEAGLE v. RYAN
   [5] Assuming the existence of a “Melendez file” that con-
tains evidence that Melendez was prepared to testify that Til-
den stabbed the Williamses, the trial court’s detailed Special
Verdict makes clear that the likely result of further inculpa-
tion of Tilden was a death sentence for Tilden and not a life
sentence for Runningeagle.6 The sentencing judge assumed
that Tilden and Runningeagle were equally responsible for the
murders, but distinguished Tilden’s individual character and
propensity from Runningeagle’s, finding that Tilden had more
mitigating factors in his favor. The lighter sentence meted out
to Tilden was not based solely on Runningeagle’s role as the
stabber. Nothing that Melendez said could have blunted the
overwhelming evidence that Runningeagle did the stabbing,
that he possessed the stolen goods and that he was undeserv-
ing of mitigation. The dissent’s view that it may have been
Tilden who did the stabbing has no basis in the evidence.

   The judge conducted an individual sentencing determina-
tion, considered mitigating factors and “set forth her findings
   6
     At oral argument, when asked about the “Melendez file,” the Warden’s
counsel indicated that “I assume there must be [one], I have no idea . . . .
I’ve never looked through the Melendez file.” Counsel also stated that “we
don’t know what the material was, we don’t know if there was a Brady
violation.” After a criminal conviction is final on direct appeal, prosecu-
tors have no further duty under Brady to produce exculpatory evidence to
a defendant. Dist. Attorney’s Office v. Osborne, 

129 S. Ct. 2308, 2320

(2009). However, the Arizona Supreme Court has held that in post-
conviction proceedings, the State has a continuing duty to produce Brady
material in its files. See Canion v. Cole, 

115 P.3d 1261, 1264

 (Ariz. 2005)
(“[W]e affirm that the State must disclose clearly exculpatory evidence
that comes to its attention after a trial has concluded.”). Ethical duties
beyond those imposed by Brady and the Due Process Clause may also
compel prosecutors to disclose exculpatory evidence at any time they
become aware of it. See Imbler v. Pachtman, 

424 U.S. 409

, 427 n.25
(1976) (“[A]fter a conviction the prosecutor is also bound by the ethics of
his office to inform the appropriate authority of after-acquired or other
information that casts doubt upon the correctness of the conviction.”).
Therefore, if a “Melendez file” exists and contains exculpatory evidence,
the State is ethically required to produce it, whether or not a further evi-
dentiary hearing is held.
                     RUNNINGEAGLE v. RYAN                   8255
separately as to each defendant.” As to Runningeagle, she
found three aggravating factors. First, she found that his con-
duct before and after the crimes showed that he “clearly was
at the location to rob; he expected pecuniary gain.” Second,
she found that the murders were especially cruel, heinous and
depraved for numerous reasons, including the fact that the
victims both suffered tremendous and horrific “mental and
physical pain” before their deaths, that “Runningeagle first
taunted both victims with his knife,” that “both defendants
laughed as they came back to the car” after killing the Wil-
liamses and that Runningeagle “bragged to his girlfriend
about having been in a ‘good fight.’ ” Third, she found that
the offense involved multiple homicides.

   As to Tilden, the judge found only two aggravating factors.
First, she found, for the same reasons stated for Runningeagle,
that the murders were especially cruel, heinous and depraved
and that “the force used to beat these two elderly small people
was senseless and gratuitous.” She noted that Tilden did not
relish the murders to the same degree as Runningeagle, who
“on two occasions made reference to a good fight.” Second,
she found that the offense involved multiple homicides. How-
ever, the judge specifically found that the State failed to prove
that Tilden sought pecuniary gain from the crimes because the
items stolen from the Williamses were found only in Run-
ningeagle’s car and bedroom.

   The judge also addressed the mitigating factors for each of
the defendants, finding “significant and considerable differ-
ences” in their “characters, backgrounds and propensities.”
She found that Runningeagle’s age was the only mitigating
factor in his favor, but not one “sufficient to call for lenien-
cy.” The judge explained that “based on the evidence pre-
sented, it is clear that [Runningeagle] is a highly intelligent
young man, that he was much the leader, the initiator of
events that occurred that evening.” She found that his family
history and mental health history were not mitigating factors,
explaining that Runningeagle “is in touch with reality, [and]
8256                 RUNNINGEAGLE v. RYAN
is not suffering from any type of [mitigating] mental disorder
or disease.”

   In contrast, the judge found that Tilden’s age and history of
family problems were mitigating factors in his favor. She
found that “unlike defendant Runningeagle, defendant Tilden
has a conscience and the ability to feel remorse and sympa-
thy.” Also unlike Runningeagle, Tilden’s “personality disor-
der is treatable, he is capable of rehabilitation.” The judge
found that Tilden followed Runningeagle’s lead, both in the
initial theft of car parts and in the subsequent confrontation
and murders. Finally, the judge discussed the lack of any evi-
dence that “Tilden inflicted any of the horrendous stab
wounds.”

   [6] The trial judge, before addressing Tilden’s mitigating
circumstances, stated that “[i]n a case such as this where two
people have been convicted of the same brutal murders, it is
natural to want to impose the same sentence, imposing the
same responsibility.” She then explained that her decision not
to impose a death sentence upon Tilden was warranted by the
“significant and considerable differences” in “their characters,
backgrounds and propensities.” She noted that defendant Run-
ningeagle was found by two independent psychologists as
lacking a conscience and extremely dangerous; whereas “Til-
den had a conscience, the ability to feel remorse and sympa-
thy.” Most significantly, the trial judge noted that her
comparison of the two defendants’ circumstances and charac-
teristics served “not . . . in aggravation of Runningeagle’s sen-
tence,” but only in mitigation of Tilden’s. Therefore, if
Melendez’s testimony had been used to further aggravate Til-
den’s responsibility, only the outcome of Tilden’s sentencing
is likely to have been different. There is thus no “reasonable
probability that, had the [hypothetical] evidence been dis-
closed, the result of the [sentencing] would have been differ-
ent.”
                    RUNNINGEAGLE v. RYAN                  8257
                              E.

   [7] In pursuing this Brady claim, Runningeagle has at vari-
ous times asked for additional discovery, expansion of the
record before the district court, and an evidentiary hearing to
determine what Melendez said to prosecutors. The district
court denied those requests under 

28 U.S.C. § 2254

(e)(2) after
concluding that Runningeagle failed to exercise due diligence
in developing the facts before the state courts. Runningeagle
renews those requests and argues that the district court erred
because he in fact sought to develop the record but was pre-
vented by the state courts from doing so. Regardless of
whether Runningeagle acted diligently, however, or of
whether he was entitled to a hearing in state court, he is not
entitled to an evidentiary hearing or additional discovery in
federal court because his claim is governed by 

28 U.S.C. § 2254

(d)(1). As the Supreme Court has recently held, review
of such claims “is limited to the record that was before the
state court that adjudicated the claim on the merits.” Pinhol-
ster, 131 S. Ct. at 1398. Even if the Arizona courts had not
denied this claim on the merits, but had found the claim pro-
cedurally defaulted under state law, Runningeagle would not
be entitled to a hearing, because the state court’s decision
would not be reviewable in federal court. See Ylst, 

501 U.S. at 801

. Accordingly, we deny Runningeagle’s request.

                             IV.

   Next, Runningeagle argues that his trial attorney rendered
ineffective assistance of counsel by failing to join Tilden’s
motion to sever their trials. The Arizona Supreme Court con-
cluded that trial counsel was not deficient, because the two
defendants did not assert mutually antagonistic defenses. As
there is no clearly established federal law requiring severance
of criminal trials in state court even when the defendants
assert mutually antagonistic defenses, and as Tilden’s and
Runningeagle’s defenses were not in fact mutually exclusive
or antagonistic, the Arizona Supreme Court’s holding was not
8258                 RUNNINGEAGLE v. RYAN
an unreasonable application of the standard established in
Strickland v. Washington, 

466 U.S. 668, 688

 (1984).

                               A.

   On April 22, 1988, Tilden’s counsel filed a motion for sev-
erance, arguing that: (1) evidence might be introduced that
would be admissible against one defendant but not against
another; (2) Tilden would be prejudiced by the “much strong-
er” scientific and physical evidence demonstrating that Run-
ningeagle was guilty; and (3) the co-defendants’ defenses
were “antagonistic, irreconcilable and mutually exclusive to
an extent that in order to believe the core of the evidence
offered on behalf of [Tilden], a jury must disbelieve the core
of the evidence offered on behalf of [Runningeagle].” At a
May 26, 1988 hearing, Runningeagle’s attorney told the judge
that he did not join the motion, and “take[s] no position to
sever.” On June 3, 1988, the trial court denied the motion
after finding “that the evidence expected to be presented at
trial is not ‘so drastically disproportionate nor do the defenses
appear to be so antagonistic,’ if at all antagonistic, to require
severance.”

   On July 7, 1988, Tilden’s attorney renewed his motion to
sever, explaining that his cross-examination would “go right
back through, only in more detail, every item taken and every
item where it was found,” and so “effectively assist[ ] the
prosecutor against the co-defendant in my case.” Run-
ningeagle’s attorney again took no position on the motion.
The trial court denied the renewed motion, reasoning, “I don’t
think it’s a situation where you would have to disbelieve one
defense to believe the other. I think you could believe both or
disbelieve both.”

   Denying Runningeagle’s petition for post-conviction relief,
the Arizona Supreme Court rejected Runningeagle’s ineffec-
tive assistance claim after concluding that the co-defendants’
defenses “were not antagonistic to the point of being mutually
                    RUNNINGEAGLE v. RYAN                      8259
exclusive.” Runningeagle, 

859 P.2d at 173

. Because sever-
ance was not required, trial counsel’s “failure to take a posi-
tion on the motion to sever was not deficient.” 

Id.

 Addressing
Tilden’s contention that the trial court erred by denying the
motion, the court further explained:

    Tilden’s “alibi of non-presence” defense is not
    antagonistic to Runningeagle’s “insufficiency of
    state’s evidence” defense. In State v. Cruz, this court
    held that:

         a defendant seeking severance based on
         antagonistic defenses must demonstrate that
         his or her defense is so antagonistic to the
         co-defendants that the defenses are mutu-
         ally exclusive. Moreover, defenses are
         mutually exclusive within the meaning of
         this rule if the jury, in order to believe the
         core of the evidence offered on behalf of
         one defendant, must disbelieve the core of
         the evidence offered on behalf of the co-
         defendant.

    See Zafiro v. United States, 

506 U.S. 534

 (1993)
    (holding that mutually antagonistic defenses are not
    prejudicial per se). Tilden claimed that he was not
    guilty because he was at home on the morning of the
    murder. Runningeagle argued that the state’s evi-
    dence was insufficient to convict him. The defenses
    are unrelated. The jury could have believed both,
    one, the other, or neither. The court did not err in
    denying the motion to sever.

Runningeagle, 

859 P.2d at 178-79

.

                              B.

 To establish ineffective assistance of counsel, “a defendant
must show both deficient performance by counsel and preju-
8260                RUNNINGEAGLE v. RYAN
dice.” Knowles v. Mirzayance, 

129 S.Ct. 1411, 1413

 (2009).
To establish deficient performance, Runningeagle must show
that his “counsel’s representation fell below an objective stan-
dard of reasonableness.” Strickland, 

466 U.S. at 688

. To
establish prejudice, he must demonstrate “a reasonable proba-
bility that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence
in the outcome.” 

Id. at 694

. “Surmounting Strickland’s high
bar is never an easy task,” Padilla v. Kentucky, 

130 S. Ct. 1473, 1485

 (2010), especially in a habeas petition. See Rich-
ter, 131 S. Ct. at 778. In addressing ineffective assistance
claims under § 2254(d), “[t]he pivotal question is whether the
state court’s application of the Strickland standard was unrea-
sonable. This is different from asking whether defense coun-
sel’s performance fell below Strickland’s standard.” Id. at
785.

   [8] Runningeagle maintains that the Arizona Supreme
Court correctly identified the controlling legal precedent by
citing to Zafiro, but unreasonably applied that precedent
because the co-defendants’ defenses were in fact mutually
exclusive. Runningeagle, however, “can satisfy the ‘unreason-
able application’ prong of § 2254(d)(1) only by showing that
‘there was no reasonable basis’ for the [state] Supreme
Court’s decision.” Pinholster, 

131 S. Ct. at 1402

. The
Supreme Court has explicitly rejected a per se rule requiring
severance where two defendants present mutually antagonistic
defenses. See Zafiro, 

506 U.S. at 538-39

. Moreover, the
record supports the Arizona Supreme Court’s conclusion that
the defenses were not in fact mutually antagonistic.

   Runningeagle agrees with the Arizona Supreme Court’s
characterization of the defenses: Tilden claimed he was not
guilty because he had an alibi, and Runningeagle claimed that
the state’s evidence was insufficient to convict. Runningeagle,

859 P.2d at 178-79

. When arguing that his client was at home
asleep at the time of the murders, however, Tilden’s attorney
                      RUNNINGEAGLE v. RYAN                       8261
highlighted the evidence against Runningeagle—and so, Run-
ningeagle argues, effectively mounted an antagonistic defense.
During his opening, for example, Tilden’s counsel stated:

      I don’t represent Mr. Running Eagle.7 And my cli-
      ent’s guilt or innocence does not rest upon his guilt
      or innocence. As you can see through my opening
      statement, I have used him as a control for my client.
      We may become greater adversaries throughout this
      process, but it’s not a joint defense.

      I represent Corey Tilden, not Sean Running Eagle.
      And I am going to show you that the State doesn’t
      have the evidence against my client. And my client
      is going to get up here and tell you that he was home
      sleeping the night that this occurred. And the only
      reason he is here is because he lived with his first
      cousin and his mother, and that is it. It’s the only
      thing that the government has against my client.

During closing arguments, Tilden’s attorney stated that his
client was guilty under the prosecution’s theory “because he
associates with a human-being by the name of Sean Running
Eagle.” He argued that all of the physical evidence linked
Runningeagle to the murders, and none of it pointed to Til-
den:

      They have nothing, ladies and gentlemen, in terms of
      physical evidence [from Tilden] at the scene. They
      have Sean’s print on the outside, in the kitchen, in
      the utility room, and on the door. Interesting compar-
      ison. If this is guilt beyond a reasonable doubt, ladies
      and gentlemen, what is this? Reasonable doubt?
      Lack of sufficient evidence to prove my client
      guilty?
  7
    The court reporter misspelled Runningeagle’s name throughout the
trial transcript as “Running Eagle.”
8262                 RUNNINGEAGLE v. RYAN
Tilden’s attorney repeatedly compared the evidence against
Tilden to the evidence against Runningeagle: “[L]et’s com-
pare Sean Running Eagle, Corey Tilden. [The prosecutor] has
stood up here and told you that he has a case of guilt beyond
a reasonable doubt against Sean Running Eagle. The real
question he says is, does he have one against Corey Tilden?
So it works a nice comparison.”

   Runningeagle attempts to support his argument that the trial
court was required to sever the co-defendants’ trials by point-
ing to two decisions in which the Supreme Court has
addressed when or whether federal (rather than, as here, state)
criminal trials of co-defendants should or must be severed. In
United States v. Lane, 

474 U.S. 438

, 446 n.8 (1986), the Court
observed that, with regard to federal defendants, “[i]mproper
joinder does not, in itself, violate the Constitution. Rather,
misjoinder would rise to the level of a constitutional violation
only if it results in prejudice so great as to deny a defendant
his Fifth Amendment right to a fair trial.” In Zafiro, 

506 U.S. at 538-39

, the Court held that, under Federal Rule of Criminal
Procedure 14(a), severance is not automatically necessary
even where co-defendants present mutually antagonistic
defenses, because “[m]utually antagonistic defenses are not
prejudicial per se.” A court should grant a severance under
Rule 14 “only if there is a serious risk that a joint trial would
compromise a specific trial right of one of the defendants, or
prevent the jury from making a reliable judgment about guilt
or innocence.” Zafiro, 

506 U.S. at 538-39

.

   There are two critical problems with Runningeagle’s argu-
ment. The first is that, even if he is correct that the co-
defendants presented mutually antagonistic defenses, we have
explicitly concluded that Zafiro and Lane do not “establish a
constitutional standard binding on the states and requiring
severance in cases where defendants present mutually antago-
nistic defenses.” Collins v. Runnels, 

603 F.3d 1127, 1131

 (9th
Cir. 2010). In reaching that holding, we found that the state-
ment in Lane regarding when misjoinder rises to the level of
                        RUNNINGEAGLE v. RYAN                        8263
constitutional violation was dicta and that Zafiro is not bind-
ing on the state courts because it addresses the Federal Rules
of Criminal Procedure. 

Id. at 1131-33

. Neither decision is
“clearly established Federal law” sufficient to support a
habeas challenge under § 2254. Id.

   [9] The second problem with Runningeagle’s argument is
that the Arizona Supreme Court correctly found that Run-
ningeagle’s and Tilden’s defenses were not in fact mutually
antagonistic. As the Court concluded, the jury could have
believed both Tilden’s alibi argument and Runningeagle’s
insufficiency of the evidence argument. Tilden’s defense was
that he was innocent; Runningeagle’s defense rested on the
theory that the state failed to meet its burden of proof. See
Runningeagle, 

859 P.2d at 178-79

. That Tilden highlighted
the state’s paucity of evidence as to his guilt by focusing on
the physical evidence implicating Runningeagle does nothing
to change this fact. As the jury was explicitly instructed, the
arguments of counsel are not evidence.8 Moreover, any juror
confusion was cured by the trial court’s instruction that
“[e]ach defendant is entitled to have his guilt or innocence as
to each of the crimes charged determined from his own con-
duct and from the evidence which applies to him if he were
being tried alone.” 

Id.

 at 178 (citing Zafiro, 

506 U.S. at 540

-
41).

  [10] Runningeagle, moreover, does not challenge the Ari-
zona court’s conclusion that where severance is not required,
counsel’s choice against taking a position on the severance
motion is not deficient performance. See Runningeagle, 

859 P.2d at 173

. The Arizona Supreme Court’s determination that
  8
   The jury was instructed: “In the opening statements and closing argu-
ments the lawyers have talked to you about the law and evidence. What
the lawyers said is not evidence but it may help you to understand the law
and the evidence.”
8264                     RUNNINGEAGLE v. RYAN
Runningeagle’s attorney’s performance was not deficient was
not unreasonable.9

                                     V.

   Runningeagle also asserts ineffective assistance of counsel
for failure to seek a separate sentencing hearing. He argues
that the joint sentencing proceedings allowed Tilden to
emphasize Runningeagle’s guilt relative to his own, which
prevented the trial court from making the individualized sen-
tencing determination required in a capital case. See Zant v.
Stephens, 

462 U.S. 862, 879

 (1983).10 The record, however,
demonstrates that Tilden’s attorney, instead of attacking Run-
ningeagle, in fact presented mitigating evidence, and that the
   9
     Runningeagle’s trial attorney later told an investigator that he had not
attempted to sever Runningeagle’s case because he believed that he and
Tilden’s attorney were acting as a team. Runningeagle argues that this
belief was so unreasonable as to render his attorney’s performance defi-
cient. However, attorneys must have “wide latitude” in making “tactical
decisions.” See Strickland, 

466 U.S. at 689

. Moreover, even if Run-
ningeagle’s counsel made a poor strategic choice, his performance was
still not deficient, because severance was not required. Because we find
that the Arizona Supreme Court’s holding as to deficiency was not unrea-
sonable, we need not reach the question of whether Runningeagle’s coun-
sel’s choice prejudiced his client. See Strickland, 

466 U.S. at 694

.
   10
      The parties disagree as to whether this claim was procedurally
defaulted; the district court found that it was not, and denied it on the mer-
its. We review procedural default rulings by the district court de novo.
See, e.g., La Crosse v. Kernan, 

244 F.3d 702, 704

 (9th Cir. 2001). Run-
ningeagle raised this argument in his first supplemental petition for state
post-conviction relief, but the trial court declined to address it because the
issue of severance was then pending on appeal. Thereafter, Runningeagle
did not clearly raise the argument before the state courts; the Arizona
Supreme Court did not explicitly address the issue. However, we need not
determine whether this claim was procedurally defaulted, because it was
addressed by the district court and has been fully briefed, and we may
therefore exercise our discretion under 

28 U.S.C. § 2254

(b)(2) to deny the
claim on the merits, “notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State.” See also Gatlin
v. Madding, 

189 F.3d 882, 889

 (9th Cir. 1999).
                        RUNNINGEAGLE v. RYAN                         8265
trial court imposed individualized sentences after explicitly
and separately considering the mitigating and aggravating evi-
dence for and against each defendant.

   The district court reviewed this claim de novo because the
Arizona Supreme Court failed to resolve it on the merits,
leaving no state court decision to which to defer. It is not
entirely clear whether we should follow suit, or instead con-
duct the more deferential AEDPA review. Compare Richter,
131 S. Ct. at 784-85 (“When a federal claim has been pre-
sented to a state court and the state court has denied relief, it
may be presumed that the state court adjudicated the claim on
the merits in the absence of any indication or state-law proce-
dural principles to the contrary.”), with Pirtle v. Morgan, 

313 F.3d 1160, 1167

 (9th Cir. 2002) (federal courts review prop-
erly raised claims that were not decided by state courts on the
merits de novo), with Murdoch v. Castro, 

609 F.3d 983

, 991
n.6 (9th Cir. 2010) (“Even when there is no reasoned state
court opinion explaining the denial of a defendant’s claim in
any respect, we ‘must assume that the state court has decided
all the issues and ‘perform an independent review of the
record to ascertain whether the state court decision was objec-
tively reasonable.” ”) (quoting Reynoso v. Giurbino, 

462 F.3d 1099, 1109

 (9th Cir. 2006)). We need not decide this question
on the convoluted procedural history here, however, because
the claim fails under either standard.

   [11] “The right to effective assistance of counsel applies
not just to the guilt phase, but ‘with equal force at the penalty
phase of a bifurcated capital trial.’ ” Silva v. Woodford, 

279 F.3d 825, 836

 (9th Cir. 2002) (quoting Clabourne v. Lewis, 

64 F.3d 1373, 1378

 (9th Cir. 1995)). Again, to establish ineffec-
tive assistance of counsel, “a defendant must show both defi-
cient performance by counsel and prejudice.” Knowles, 

129 S. Ct. at 1413

. The crux of Runningeagle’s deficiency argument
is that an effective attorney would have recognized that a joint
sentencing proceeding could result in prejudice.11 See Strick-
  11
   Runningeagle also raises and conflates numerous other claims which
were not certified for appeal and are thus not before us. For example, Run-
8266                     RUNNINGEAGLE v. RYAN
land, 

466 U.S. at 688

 (“[T]he performance inquiry must be
whether counsel’s assistance was reasonable considering all
the circumstances.”).

   [12] Ordinarily, defendants have no constitutional or statu-
tory right to separate sentencing proceedings. Instead,
“[g]iven that the imposition of death by public authority is so
profoundly different from all other penalties,” the Supreme
Court has held that the defendants have a right to “an individ-
ualized decision . . . in capital cases.” Lockett v. Ohio, 

438 U.S. 586, 605

 (1978). This means “that the sentencing deci-
sion [must] be based on the facts and circumstances of the
defendant, his background, and his crime.” Clemons v. Missis-
sippi, 

494 U.S. 738, 748

 (1990). Runningeagle argues that,
because Tilden was able to argue that Runningeagle was the
more culpable party in the jointly held sentencing proceed-
ings, Runningeagle did not receive an individualized sentenc-
ing determination, and hence the trial court violated his
Eighth Amendment rights.

   [13] Runningeagle’s argument relies on a mischaracteriza-
tion of the sentencing proceedings. While it is true that Til-
den’s attorney suggested that only Runningeagle could be
linked to the stabbing wounds, Tilden’s strategy on the whole
was to present his own mitigation evidence rather than to
blame Runningeagle. Thus, contrary to Runningeagle’s con-
tentions, Tilden’s counsel did not act as a “second prosecutor”
of Runningeagle during sentencing. As the district court accu-
rately recounted:

     At sentencing, Tilden presented the testimony of
     psychologist Donald Tatro, who opined that Tilden
     suffered from a personality disorder but not an anti-

ningeagle argues that his counsel was ineffective for failing to raise certain
arguments at sentencing, and suggests that the trial court violated his
Eighth Amendment rights by failing to provide an individualized sentence.
                     RUNNINGEAGLE v. RYAN                    8267
    social personality disorder. . . . Following Dr.
    Tatro’s testimony, Tilden presented a number of
    family and friends who testified about his difficult
    family background, his efforts to complete his edu-
    cation, and their opinion that the circumstances of
    the crime were out of character for him. During clos-
    ing argument, Tilden argued that his age — eighteen
    — was a statutory mitigating factor, and that other
    mitigating circumstances, including his difficult fam-
    ily background, personality disorder, love of family,
    and lingering doubt about how much Tilden partici-
    pated in the murders, called for a lenient sentence.
    During closing argument, Tilden focused on his own
    mitigation; he did not attack [Runningeagle] by
    arguing that he had the more prominent role in the
    crimes.

   Moreover, even had Tilden’s attorney sought to place all
the blame on Runningeagle, he was not denied an individual-
ized sentencing determination. The trial court issued a care-
fully reasoned Special Verdict that separately addressed
Runningeagle’s conduct and background. That court presided
over the trial of the case and heard all of the evidence, held
sentencing hearings, and took additional evidence in the form
of letters from the victims’ family and friends, letters from the
defendants’ family and friends, letters from Runningeagle
himself, three psychological reports from three separate psy-
chologists, the State and defense sentencing memoranda, and
the Pre-Sentence Report by the Probation Office. Had sever-
ance been granted, there is no indication that the trial court
would have considered any different evidence or reached any
other decision.

   Moreover, the sentencing court was fully aware of its
responsibility to impose individualized sentences. At the sen-
tencing hearings, the trial court stated it was “very mindful of
the constitutional requirement to individualize and to individ-
ually determine all sentencings,” noting that this was particu-
8268                 RUNNINGEAGLE v. RYAN
larly true in capital cases. After sentencing Runningeagle and
turning to Tilden, the court again mentioned that it was
“mindful of the need to individualize the sentences.” Shortly
thereafter, declining to impose death upon Tilden, the court
observed that it had been “reminded over and over by the
death penalty cases” it had reviewed that it was “bound and
mandated by our Constitution and by justice to individualize
the sentences and to consider and take into account not only
the circumstances of the offense, but the character and pro-
pensities of each of the offenders.” The court added that “this
required not only a comparison of the actions and degree of
participation of each defendant, but a comparison of their
characters, backgrounds, and propensities. In making this
comparison I find significant and considerable differences.”

   Both the hearing transcripts and the Special Verdict demon-
strate that the trial court understood the different levels of cul-
pability of, and separately considered the aggravating and
mitigating evidence for, each defendant. The trial court found
that Runningeagle played the lead role in the murders and was
incapable of feelings such as remorse. Runningeagle may dis-
agree with these findings, but having a separate sentencing
proceeding would not have changed them. Moreover, the
court took great pains to explain why she imposed only a sen-
tence of life imprisonment upon Tilden, instead of the death
sentence imposed upon Runningeagle. Noting that there were
“significant and considerable differences” in the characters,
backgrounds, and propensities of the two defendants, the trial
court stated that it had “not used these differences in aggravat-
ing circumstances against Defendant Running Eagle, but have
only used them in considering the mitigating circumstances”
relevant to Tilden. The judge further explained the differing
roles they played in the murders:

    The Court must consider the degree of participation
    by Defendant Tilden in these brutal murders. There
    is no doubt that Defendant Tilden acted brutally in
    the manner and strength with which he struck Mrs.
                    RUNNINGEAGLE v. RYAN                     8269
    Williams, and there is also no doubt that he struck
    Mr. Williams. However, there is no evidence to indi-
    cate Defendant Tilden inflicted any of the horren-
    dous stab wounds. All of the evidence presented
    pointed to Defendant Running Eagle who owned the
    survival knife, whose palmprint was found in the
    laundry room above the bloody bodies. It was the
    Defendant Running Eagle who initiated the cruising,
    was involved in the removal of the scoop and the
    carburetors when Mr. Williams first confronted the
    defendants. The evidence points to Defendant Run-
    ning Eagle as the intelligent, charismatic leader that
    younger cousin Defendant Tilden followed.

   [14] Addressing a similar ineffective assistance claim by
an Indiana defendant who argued that his counsel should have
moved for severed sentencing proceedings, the Seventh Cir-
cuit found that there was no prejudice where, despite the
habeas petitioner’s “contentions, there is no evidence that in
a separate proceeding, the . . . judge would have balanced the
aggravating and mitigating factors differently.” Rastafari v.
Anderson, 

278 F.3d 673, 691

 (7th Cir. 2002). We agree with
this approach, and similarly find that there is no evidence that
the sentencing court would have balanced the aggravating and
mitigating factors differently had the defendants been
afforded separate sentencing proceedings.

                              VI.

   Runningeagle argues that the Arizona Supreme Court
unreasonably rejected his claim that statements made by the
prosecution violated his right to due process. In his opening
statement, the prosecutor declared:

    What happened in the next 10, 15, 20 minutes [after
    Runningeagle began stealing pieces of the car] can
    only be described as unspeakable horror. It was evil.
    What happened in that next 10, 15, 20 minutes ended
8270                 RUNNINGEAGLE v. RYAN
    everything for Jackie and Herbert Williams. And the
    cause and the reason that it ended is right here in the
    courtroom. The evil is among us.

Runningeagle, 

859 P.2d at 173-74

. Runningeagle objected to
these statements, and the trial court sustained the objection,
but denied Runningeagle’s subsequent motion for a mistrial.

Id.

 In his petition for post-conviction relief, Runningeagle
argued that these statements were “an appeal to passion and
prejudice,” and that he was entitled to a new trial. 

Id.

 Denying
Runningeagle’s petition, the Arizona Supreme Court held that
while the prosecutor’s words constituted argument, and thus
were objectionable, the argument was “merely a characteriza-
tion of the evidence” rather than an appeal to passion or preju-
dice. 

Id.

 Runningeagle contends that, contrary to the Arizona
Supreme Court’s conclusion, these comments were directed
toward his character rather than to the nature of the crimes,
and therefore infected his trial with unfairness, as the jury
heard these comments before hearing the evidence.

   Runningeagle might well be correct about the true import
of the prosecutor’s comments. But see Donnelly v. DeChristo-
foro, 

416 U.S. 637, 647

 (1974) (“[A] court should not lightly
infer that a prosecutor intends an ambiguous remark to have
its most damaging meaning or that a jury, sitting through
lengthy exhortation, will draw that meaning from the plethora
of less damaging interpretations.”). Even if the Arizona
Supreme Court unreasonably viewed all of the prosecutor’s
comments as characterizations of the evidence rather than
characterizations of the defendants, however, to prevail on
habeas review under Richter, Runningeagle must demonstrate
that any “arguments or theories . . . [that] could have sup-
ported” the state court’s ultimate decision—here, its determi-
nation that the prosecutor’s remarks did not violate
Runningeagle’s due process right to a fair trial—would have
been an unreasonable application of clearly established fed-
eral law. See Richter, 

131 S. Ct. at 786

. Because the trial court
sustained Runningeagle’s objection and repeatedly instructed
                    RUNNINGEAGLE v. RYAN                   8271
the jury that the attorneys’ arguments were not evidence, and
because the weight of the evidence against Runningeagle was
substantial, Runningeagle cannot do so.

   [15] “Improper argument does not, per se, violate a defen-
dant’s constitutional rights.” Fields v. Woodford, 

309 F.3d 1095, 1109

 (9th Cir. 2002) (quoting Thompson v. Borg, 

74 F.3d 1571, 1576

 (9th Cir. 1996)). “[I]t is not enough that the
prosecutors’ remarks were undesirable or even universally
condemned.” Darden v. Wainwright, 

477 U.S. 168, 181

(1986) (internal quotation marks omitted). Rather, “[t]he rele-
vant question is whether the prosecutors’ comments ‘so
infected the trial with unfairness as to make the resulting con-
viction a denial of due process.’ ” 

Id.

 (quoting Donnelly, 

416 U.S. at 643

). In Darden, during closing, the prosecutor
referred to Darden as an “animal,” and said that he should not
be allowed out of a cell unless he was on a leash and that he
wished that he could see Darden “sitting here with no face,
blown away by a shotgun.” 

Id.

 at 181-83 nn.11 & 12. Never-
theless, the Court found that these improper statements did
not deprive Darden of a fair trial, in part because of the sub-
stantial evidence against Darden, and because the trial court
instructed the jury that the arguments made by counsel were
not evidence. See id. at 181-83; see also Donnelly, 

416 U.S. at 645

 (finding that an improper statement by a prosecutor
during closing argument did not amount to a due process vio-
lation in part because the judge instructed the jury that the
remark was not evidence); Allen v. Woodford, 

395 F.3d 979, 998

 (9th Cir. 2005) (finding that prosecutorial misconduct did
not amount to a due process violation where the trial court
gave an instruction that the attorneys’ statements were not
evidence and where the prosecutors presented substantial evi-
dence of the defendant’s guilt).

   [16] The trial judge sustained Runningeagle’s objection to
the improper statements. Just as in Donnelly and Darden,
moreover, the trial court repeatedly instructed the jury regard-
ing the nature of the attorneys’ arguments. Both before open-
8272                   RUNNINGEAGLE v. RYAN
ing statements and after the close of the trial, the court
instructed the jurors that what the attorneys said in opening
was not evidence, that they should decide the case only on the
evidence, and that they should not be influenced by sympathy
or prejudice. Again as in Darden, 

477 U.S. at 181-83

, the evi-
dence against Runningeagle was substantial, and included,
among other things, his palm print on the clothes dryer next
to the Williamses’ bodies and his own statements about the
crimes. Runningeagle, 

859 P.2d at 171-72

. The Arizona
Supreme Court’s determination that the prosecutor’s com-
ments, while improper, did not amount to a due process viola-
tion, was therefore not an unreasonable application of clearly
established federal law. See 

28 U.S.C. § 2254

(d). That the
Arizona Supreme Court did not cite to either Donnelly or
Darden, the most relevant Supreme Court opinions, is imma-
terial. See Richter, 

131 S. Ct. at 784

 (“And as this Court has
observed, a state court need not cite or even be aware of our
cases under § 2254(d).”) (citing Early v. Packer, 

537 U.S. 3, 8

 (2002) (per curiam)).

                                 VII.

  We therefore affirm the district court’s denial of Run-
ningeagle’s habeas petition and request for an evidentiary
hearing.

  AFFIRMED.12




  12
    We address Runningeagle’s March 26, 2012 motion for a limited
remand of issues not before us in an order filed concurrently with this
opinion.
                        RUNNINGEAGLE v. RYAN                         8273
PREGERSON, Circuit Judge, concurring in part and dissent-
ing in part:

“A rule . . . declaring ‘prosecutor may hide, defendant must
 seek,’ is not tenable in a system constitutionally bound to
               accord defendants due process.”
         Banks v. Dretke, 

540 U.S. 668, 696

 (2004).

   In the early morning hours of December 6, 1987, in Phoe-
nix, Arizona, two teenagers committed a horrible and sense-
less crime. Petitioner Sean Bernard Runningeagle and his co-
defendant, Corey Tilden, burglarized the home of Herbert and
Jacqueline Williams. Herbert and Jacqueline Williams were
present at the time of the burglary, and, in the course of the
burglary, one of these two teenagers stabbed and killed the
Williamses.

    Runningeagle and Tilden were tried together in Maricopa
County Superior Court. Both were convicted of two counts of
first degree murder. At the sentencing hearing, the trial judge
sentenced Tilden to life imprisonment but sentenced Run-
ningeagle to death.1 The judge’s decision to spare Tilden’s life
was based primarily on the judge’s view that it was Run-
ningeagle who stabbed the victims. What the trial judge did
not have before her, and indeed no court has ever had before
it, are the statements Tilden made about his role in the mur-
ders to his cellmate, Manuel Melendez. Prosecutors and
police spoke with Melendez five times in the weeks leading up
to Runningeagle’s trial, but never provided Melendez’s poten-
tially exculpatory statements to Runningeagle.
   1
     Prior to the Supreme Court’s decision in Ring v. Arizona, trial judges
in Arizona determined mitigating and aggravating circumstances and
decided whether a death sentence should be imposed. 

536 U.S. 584, 589

(2002). In Ring, the Supreme Court held that this procedure violated the
Sixth Amendment’s Right to a Trial by Jury. 

Id.

 Ring, however, is not
retroactive to cases on federal habeas review. Schriro v. Summerlin, 

542 U.S. 348, 358

 (2007).
8274                     RUNNINGEAGLE v. RYAN
   Runningeagle has diligently sought this information from
prosecutors for more than twenty years, to no avail. On April
18, 1988, three months before trial, Runningeagle’s counsel
filed a motion requesting that prosecutors provide “all mate-
rial or information which tends to mitigate or negate [Run-
ningeagle’s] guilt as to the offense charged, or which would
tend to reduce [his] punishment therefor . . . .” Despite this
request, the prosecution failed to provide Melendez’s state-
ments to Runningeagle.

   In his state post-conviction review (“PCR”) proceedings,
Runningeagle raised a Brady claim and asked for access to the
court’s subpoena power and for an evidentiary hearing, so he
could finally obtain Melendez’s statements. But the state PCR
court summarily denied Runningeagle’s Brady claim, without
first requiring prosecutors to disclose Melendez’s statements.
The court based its denial on Arizona Rule of Criminal Proce-
dure 32.1(e), which requires the petitioner to establish that
“[n]ewly discovered material facts probably exist and such
facts probably would have changed the verdict or sentence.”
Ariz. R. Crim. P. 32.1(e) (emphasis added).

   In his federal habeas proceedings, Runningeagle asked for
discovery and an evidentiary hearing. Like the state PCR
court, the district court denied Runningeagle’s Brady claim
without first requiring prosecutors to disclose Melendez’s state-
ments.2 Runningeagle then appealed the district court’s denial
of habeas relief to our court.
  2
    In the district court, Runningeagle made discovery requests for docu-
ments containing Melendez’s statements from the police department, the
county attorney’s office, the sheriff’s office, and the county jail. Run-
ningeagle also requested that the court afford him the opportunity to
depose investigators and detectives who had spoken with Melendez. The
district court denied all of Runningeagle’s discovery requests on the
ground that Runningeagle was not “diligent” in attempting to develop the
facts of his claim in state court, as required by 

28 U.S.C. § 2254

(e)(2). The
district court’s ruling was incorrect. Runningeagle was diligent in attempt-
ing to develop the factual basis of his claim in state court. Before the state
                       RUNNINGEAGLE v. RYAN                       8275
   During oral argument before our court, counsel for the gov-
ernment acknowledged there may be a “Melendez File” con-
taining exculpatory evidence that, to this day, has still not
been disclosed to Runningeagle. Oral Argument Audio at
33:40-34:01; 36:28-37:44. The government attorney, how-
ever, took the remarkable position that Runningeagle was not
entitled to this exculpatory information. Oral Argument Audio
at 33:40-34:01; 36:28-37:44.

   The majority opinion, like every court to have adjudicated
Runningeagle’s claims, denies Runningeagle’s Brady claim
without first requiring prosecutors to disclose Melendez’s
statements. Maj. Op. at 8257. In so holding, the majority
opinion concludes that the state PCR court’s denial of Run-
ningeagle’s Brady claim, without any discovery or evidentiary
development, was not “contrary to” or an “unreasonable
application” of clearly established federal law under 

28 U.S.C. § 2254

(d)(1). Maj. Op. at 8245-46. The majority opin-
ion further concludes that, under Cullen v. Pinholster, 

131 S. Ct. 1388

 (2011), Runningeagle is not entitled to discovery of
Melendez’s statements. Maj. Op. at 8257.

  In my view, the state PCR court’s use of “probably would
have changed the verdict or sentence” as a standard for Brady
materiality was “contrary to” clearly established Supreme
Court case law. Under clearly established Supreme Court case
law, the standard for materiality under Brady is whether

PCR court, Runningeagle raised a Brady claim and requested an evidenti-
ary hearing. He also asked for access to the PCR court’s subpoena power,
and attached supporting documents to his PCR Petition. Runningeagle’s
attempts to develop the record before the state PCR court were more than
sufficient to satisfy 2254(e)(2)’s diligence requirement. See Stanley v.
Schriro, 

598 F.3d 612, 624

 (9th Cir. 2010) (“A petitioner who has previ-
ously sought and been denied an evidentiary hearing has not failed to
develop the factual basis of his claim and therefore satisfies
§ 2254(e)(2).”); West v. Ryan, 

608 F.3d 477, 484-85

 (9th Cir. 2010)
(same).
8276                    RUNNINGEAGLE v. RYAN
“there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would
have been different.” United States v. Bagley, 

473 U.S. 667, 682

 (1985). A “reasonable probability” is a probability suffi-
cient to undermine confidence in the outcome, but is less than
the preponderance more-likely-than-not standard. Kyles v.
Whitley, 

514 U.S. 419, 434

 (1995).

   Because Runningeagle has satisfied § 2254(d)(1)’s “con-
trary to” clause, we must review Runningeagle’s Brady claim
“without the deference AEDPA otherwise requires.” Panetti
v. Quarterman, 

551 U.S. 930, 953

 (2007). Under this de novo
review, I would remand to the district court for discovery on
Runningeagle’s sentencing-phase Brady claim. In my view,
Runningeagle has established “good cause” for discovery
under Rule 6(a) of the Rules Governing § 2254 Cases.3

                    AEDPA’s FRAMEWORK

   Because Runningeagle is a state prisoner challenging his
conviction and death sentence in federal court, the strictures
of the Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”) apply to his claim. See 

28 U.S.C. § 2254

; Lindh
v. Murphy, 

521 U.S. 320

 (1997). The AEDPA provides, in
pertinent part, that a state prisoner may not obtain federal
habeas relief for any claim “adjudicated on the merits” by a
state court unless he can show that the state court’s adjudica-
tion of his claim:

      resulted in a decision that was contrary to, or
      involved an unreasonable application of, clearly
  3
    Like the majority, I would affirm the district court’s denial of habeas
relief on Runningeagle’s guilt-phase Brady claim. The evidence of Run-
ningeagle’s guilt was overwhelming. Accordingly, Runningeagle cannot
establish “a reasonable probability that, had the evidence been disclosed
to the defense, the result of the [guilt-phase] would have been different.”
United States v. Bagley, 

473 U.S. 667, 682

 (1985). I also concur in the
majority’s resolution of Runningeagle’s non-Brady claims.
                     RUNNINGEAGLE v. RYAN                     8277
     established Federal law, as determined by the
     Supreme Court of the United States . . .

28 U.S.C. § 2254

(d)(1) (emphasis added). This section con-
tains two independent clauses: a “contrary to” clause and an
“unreasonable application” clause. See Terry Williams v. Tay-
lor, 

529 U.S. 362, 404

 (2000). A state prisoner is not required
to satisfy both clauses of Section 2254(d)(1). Terry Williams,

529 U.S. at 404-05

. He need only show that the state court’s
decision was “contrary to” federal law, or, an “unreasonable
application” of federal law. 

Id.

A.   The “Contrary To” Clause

   A state court’s “use of the wrong legal rule or framework
[ ] constitute[s] error under the ‘contrary to’ prong of
§ 2254(d)(1).” Frantz v. Hazey, 

533 F.3d 724, 734

 (9th Cir.
2008) (en banc); see also Price v. Vincent, 

538 U.S. 634, 640

(2003) (holding that a state court decision is “contrary to”
clearly established federal law if the state court “applies a rule
that contradicts the governing law set forth in [Supreme
Court] cases.”) (internal marks omitted). In Terry Williams,
the Supreme Court gave the following example of a state
court decision that would be “contrary to” clearly established
federal law:

     A state court decision will certainly be contrary to
     our clearly established precedent if the state court
     applies a rule that contradicts the governing law set
     forth in our cases. Take, for example, our decision in
     Strickland v. Washington. If a state court were to
     reject a prisoner’s claim of ineffective assistance of
     counsel on the grounds that the prisoner had not
     established by a preponderance of the evidence that
     the result of his criminal proceeding would have
     been different, that decision would be [contrary to]
     our clearly established precedent because we held in
     Strickland that the prisoner need only demonstrate a
8278                 RUNNINGEAGLE v. RYAN
     “reasonable probability that . . . the result of the pro-
     ceeding would have been different.”

529 U.S. at 405-06

 (internal citations omitted). In the context
of a Brady claim, our court has held that a state court’s use
of the wrong standard for assessing materiality will result in
a decision that is “contrary to” clearly established federal law.
See Bailey v. Rae, 

339 F.3d 1107, 1118

 (9th Cir. 2003) (hold-
ing that the state court’s use of a “probably change the result”
standard for materiality was “contrary to” clearly established
federal law).

B.     The “Unreasonable Application” Clause

A state court’s decision will constitute an unreasonable appli-
cation of clearly established federal law if the “state court’s
application of clearly established federal law was objectively
unreasonable.” Terry Williams, 

529 U.S. at 409

.

   In Harrington v. Richter, 

131 S. Ct. 770

 (2011), the
Supreme Court discussed use of the “unreasonable applica-
tion” clause when a state court issues a summary denial on the
merits. The Court explained that, when a state court issues a
summary denial on the merits, the “unreasonable application”
clause requires that:

     [A federal habeas court] determine what arguments
     or theories supported or, as here, could have sup-
     ported, the state court’s decision; and then it must
     ask whether it is possible fairminded jurists could
     disagree that those arguments or theories are incon-
     sistent with the holding in a prior decision of this
     Court.

Richter, 131 S. Ct. at 786. The Court then held that, if fair-
minded jurists could disagree with the hypothetical arguments
generated by the federal habeas court, then the state court’s
                    RUNNINGEAGLE v. RYAN                   8279
summary denial will not be an “unreasonable application” of
clearly established federal law. Id.

C.    De Novo Review in Federal Court

   If a state prisoner is able to satisfy Section 2254(d)(1)’s
“contrary to” clause or its “unreasonable application” clause,
the federal habeas court must then review the state prisoner’s
claim de novo. Frantz, 

533 F.3d at 735

; see also Lafler v.
Cooper, No. 10-209, ___ S. Ct. ___, 

2012 WL 932019

, at *11
(2012) (reviewing habeas petitioner’s ineffective assistance
claim de novo after finding that state court’s adjudication of
the claim was “contrary to” clearly established federal law);
Panetti v. Quarterman, 

551 U.S. 930, 953

 (2007) (holding
that, when the requirement set forth in § 2254(d)(1) is satis-
fied, “[a] federal court must then resolve the claim without the
deference AEDPA otherwise requires.”).

   With AEDPA’s framework in mind, and with an under-
standing that this framework was designed to limit and restrict
a federal court’s ability to issue the Great Writ in criminal
matters originating in state courts, it is time to consider
whether Runningeagle is entitled to discovery on his Brady
claim.

                        DISCUSSION

I.   The State PCR Court’s Denial of Runningeagle’s
     Brady Claim Was “Contrary To” Clearly Established
     Federal Law Because the State PCR Court Applied
     the Wrong Standard for Assessing Materiality Under
     Brady

   Under Section 2254(d)(1)’s “contrary to” clause, a state
court’s “use of the wrong legal rule or framework [ ] consti-
tute[s] error . . . .” Frantz, 

533 F.3d at 734

; see also Price,

538 U.S. at 640

. Here, the state court’s use of the wrong legal
8280                    RUNNINGEAGLE v. RYAN
standard for assessing materiality under Brady was “contrary
to” clearly established federal law.

   Under clearly established Supreme Court case law, the
standard for materiality under Brady is whether “there is a
reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been
different.” United States v. Bagley, 

473 U.S. 667, 682

 (1985).
A “reasonable probability” is a probability sufficient to under-
mine confidence in the outcome, but is less than the prepon-
derance more-likely-than-not standard. Kyles v. Whitley, 

514 U.S. 419, 434

 (1995); see also Bagley, 

473 U.S. at 678

. This
“reasonable probability” standard was not the standard
employed by the state PCR court.

   The state PCR court denied Runningeagle relief on his
Brady claim, as well as further evidentiary development on
the Brady claim, based on Arizona Rule of Criminal Proce-
dure 32.1(e). Rule 32.1(e) provides for relief when “newly
discovered material facts probably exist and such facts proba-
bly would have changed the verdict or sentence.” (emphasis
added). This standard mirrors the standard under Rule 33 of
the Federal Rules of Criminal Procedure for granting a new
trial based on newly discovered evidence. See United States
v. George, 

420 F.3d 991, 1000

 (9th Cir. 2005) (noting that a
new trial under Rule 33 requires that the new evidence
“would probably result in acquittal”) (emphasis added).4
   4
     The majority takes inconsistent positions on whether the state PCR
court reached the merits of Runningeagle’s Brady claim. First, the major-
ity contends that Runningeagle’s Brady claim is not procedurally
defaulted because the state PCR court reached the merits of Run-
ningeagle’s Brady claim and denied Runningeagle relief on Brady materi-
ality grounds rather than on one of the state law procedural grounds listed
in Rule 32.1(e). Maj. Op. at 8249. Several pages later, however, the major-
ity contends that the state PCR court’s use of an erroneous materiality
standard was not “contrary to” clearly established federal law because the
state PCR court could have denied Runningeagle relief based on one of the
state law procedural grounds listed in Rule 32.1(e). Maj. Op. at 8253 n.5
                         RUNNINGEAGLE v. RYAN                           8281
   The state PCR court’s use of a “probably would have
changed the verdict or sentence” standard for determining
materiality under Brady was contrary to clearly established
Supreme Court case law. The Supreme Court has explained
time and time again that the test for materiality under Brady
is less onerous than the standard for obtaining a new trial
under Rule 33 of the Federal Rules of Criminal Procedure. In
United States v. Agurs, 

427 U.S. 97

 (1976), the Supreme
Court held that, under Brady:

     [T]he defendant should not have to satisfy the severe
     burden of demonstrating that newly discovered evi-
     dence probably would have resulted in acquittal. If
     the standard applied to the usual motion for a new
     trial based on newly discovered evidence were the
     same when the evidence was in the State’s posses-
     sion as when it was found in a neutral source, there
     would be no special significance to the prosecutor’s
     obligation to serve the cause of justice.

Agurs, 

427 U.S. at 111

 (emphasis added). See also Bagley,

473 U.S. at 680-81

 (“The standard of materiality applicable in
the absence of a specific Brady request is therefore stricter
than the harmless-error standard but more lenient to the

(contending that the state PCR court could have denied relief based on
Rule 32.1(e)’s procedural requirement that evidence be “newly discov-
ered”). I agree with the first proposition put forth by the majority: that the
state PCR court reached the merits of the Brady claim and denied relief
on the merits rather than one of the state law procedural grounds listed in
Rule 32.1(e). Where, as here, a state court decision is interwoven with fed-
eral law and “the adequacy and independence of any possible state law
ground is not clear from the face of the [state court] opinion, [the federal
court] will accept as the most reasonable explanation that the state court
decided the case the way it did because it believed that federal law
required it to do so.” Florida v. Powell, 

130 S. Ct. 1195, 1201-02

 (2010)
(internal quotation marks omitted) (quoting Michigan v. Long, 

463 U.S. 1032, 1040-41

 (1983)).
8282                    RUNNINGEAGLE v. RYAN
defense than the newly-discovered-evidence standard.”)
(emphasis added).

   Our court has previously held that a state court’s use of the
wrong standard for assessing materiality under Brady will
result in a state court decision that is “contrary to” clearly
established federal law. In Bailey v. Rae, 

339 F.3d 1107

 (9th
Cir. 2003), our court reviewed a state court denial of a Brady
claim where the state court required the petitioner to show the
evidence suppressed “be such as will probably change the
result if a new trial is granted.” 

Id. at 1118

 (emphasis added)
(internal quotation marks omitted). In finding that the state
court decision was “contrary to” clearly established Supreme
Court case law, our court explained that:

      The steep hurdle set by the state court runs contrary
      to the materiality test that has been set out by the
      Supreme Court. In Bagley, the Court explained that
      evidence is material if there is a “reasonable proba-
      bility” that a different outcome would have occurred
      had the evidence been disclosed, meaning that there
      was a “probability sufficient to undermine confi-
      dence in the outcome.” The Court, in arriving at the
      standard, made a point of distinguishing the stricter
      “newly discovered evidence” standard of the type
      applied by the Oregon state court.

Id.

 (internal citations omitted). Here, as in Bailey, the steep
hurdle set by the state PCR court runs “contrary to” clearly
established federal law. See also Terry Williams, 

529 U.S. at 405-06

 (noting that a state court’s use of the wrong standard
in assessing prejudice under Strickland would be an example
of a state decision “contrary to” clearly established Supreme
Court case law).5
  5
     The Supreme Court’s decision in Richter does not affect analysis under
the “contrary to” clause of § 2254(d)(1). Richter concerned § 2254(d)(1)’s
“unreasonable application” clause, not the “contrary to” clause. See Rich-
ter, 131 S.Ct. at 785 (“The court of appeals lengthy opinion [ ] discloses
an improper understanding of § 2254(d)’s unreasonableness standard
. . . .”) (emphasis added).
                     RUNNINGEAGLE v. RYAN                   8283
II.    Because Runningeagle has Satisfied Section
       2254(d)(1)’s “Contrary To” Clause, Runningeagle’s
       Brady Claim is Subject to De Novo Review in Federal
       Court

   Once a state prisoner satisfies Section 2254(d)(1)’s “con-
trary to” clause or its “unreasonable application” clause, the
state prisoner’s habeas claim is subject to de novo review in
federal court. See Panetti, 

551 U.S. at 953

; Frantz, 

533 F.3d at 735

. Here, the state PCR court’s denial of Runningeagle’s
Brady claim was “contrary to” clearly established federal law
because the state PCR court applied the wrong standard for
assessing materiality under Brady. Accordingly, Run-
ningeagle’s claim is subject to de novo review because he has
satisfied Section 2254(d)(1)’s “contrary to” clause.

III.   Pinholster Does Not Bar Further Evidentiary
       Development for Habeas Claims Subject to De Novo
       Review

   The majority relies on the Supreme Court’s recent decision
in Cullen v. Pinholster, 

131 S. Ct. 1388

 (2011), for the propo-
sition that Runningeagle is not entitled to discovery in federal
court. Maj. Op. at 8257. Pinholster, however, does not apply
to Runningeagle’s Brady claim because Runningeagle’s
Brady claim is subject to de novo review.

   In Pinholster, the Supreme Court held that a federal habeas
court’s “review under § 2254(d)(1) is limited to the record
that was before the state court . . . .” 131 S. Ct. at 1398. Pin-
holster, however, did not address what happens after a habeas
petitioner has overcome the limitation of § 2254(d)(1).
Indeed, the Supreme Court has held that, once a petitioner has
satisfied § 2254(d)(1) “[a] federal court must then resolve the
claim without the deference AEDPA otherwise requires.”
Panetti, 

551 U.S. at 953

; see also Frantz, 

533 F.3d at 735

.

  Here, as discussed above, Runningeagle’s claim is subject
to de novo review because he has satisfied Section
8284                RUNNINGEAGLE v. RYAN
2254(d)(1)’s “contrary to” clause. It is under this de novo
review that a state prisoner can receive discovery in federal
court.

IV.    Runningeagle is Entitled to Discovery on his
       Sentencing-Phase Brady Claim

   The majority concludes that discovery of Melendez’s
potentially exculpatory statements is unnecessary because
there is no “reasonable probability” that Runningeagle would
have received a life sentence had Melendez implicated Tilden
as the stabber. Maj. Op. at 8253. This is so, the majority con-
tends, because “the likely result of further inculpation of Til-
den was a death sentence for Tilden and not a life sentence for
Runningeagle.” Maj. Op. at 8254 (emphasis added). I respect-
fully disagree for the following reasons.

  A.   The Majority Incorrectly Applies the Standard for a
       Ruling on the Merits Instead of the Standard for Dis-
       covery Under Rule 6(a) of the Rules Governing § 2254
       Habeas Cases

   First, the majority does not address the relevant legal stan-
dard for granting discovery in a habeas proceeding. Under the
applicable standard, a habeas petitioner is entitled to discov-
ery under Rule 6(a) of the Rules Governing § 2254 Cases
when “specific allegations before the court show reason to
believe that the petitioner may, if the facts are fully devel-
oped, be able to demonstrate that he is . . . entitled to relief
. . . .” Pham v. Terhune, 

400 F.3d 740, 743

 (9th Cir. 2005)
(quoting Bracy v. Gramley, 

520 U.S. 899, 908-09

 (1997)).
Our court has also held that discovery should be authorized
under Rule 6(a) “when discovery [is] essential for the habeas
petitioner to develop fully his underlying claim.” Pham, 

400 F.3d at 743

 (internal marks omitted); see also Jones v. Wood,

114 F.3d 1002, 1009

 (9th Cir. 1997) (authorizing discovery
because it was “essential” for the habeas petitioner to “de-
velop fully” his underlying claim). Thus, to obtain discovery,
                     RUNNINGEAGLE v. RYAN                   8285
a habeas petitioner is not required to conclusively establish
entitlement to relief. To obtain discovery, the habeas peti-
tioner need only show that he “may, if the facts are fully
developed, be able to demonstrate that he is entitled to relief,”
Pham, 

400 F.3d at 743

 (internal marks omitted), or that dis-
covery is “essential” to develop the underlying claim. 

Id.

   Here, there is reason to believe that Runningeagle may, if
the facts are fully developed, be able to demonstrate that he
is entitled to relief on his sentencing-phase Brady claim.
Bracy, 

520 U.S. at 908-09

. Runningeagle has alleged that the
prosecution withheld documents detailing statements co-
defendant Tilden made to Melendez about Tilden’s role in the
murders. The trial judge’s decision to spare co-defendant Til-
den from a death sentence was based, in large part, on the trial
judge’s view that Runningeagle was the one who inflicted the
stab wounds. Thus, statements from Melendez that implicated
Tilden as the stabber would be crucial mitigating evidence for
Runningeagle.

   Moreover, the government did acknowledge during oral
argument before our court that there may be a “Melendez
File” containing exculpatory evidence that was never turned
over to the defense. Oral Argument Audio at 33:40-34:01;
36:28-37:44. In these circumstances, discovery of exculpatory
information in the “Melendez File” is “essential” for Run-
ningeagle to “develop fully” his sentencing-phase Brady
claim. See Pham, 

400 F.3d at 743

.

  B.   The Evidence that Runningeagle was the Stabber Was
       Not “Overwhelming”

   Next, the majority contends that Runningeagle is not enti-
tled to discovery of Melendez’s statements because “[n]othing
that Melendez said could have blunted the overwhelming evi-
dence that Runningeagle did the stabbing” and that there is
“no basis in the evidence” to conclude that Tilden may have
been the stabber. Maj. Op. 8254. I agree with the majority
8286                RUNNINGEAGLE v. RYAN
insofar as there was “overwhelming” evidence that Run-
ningeagle and Tilden entered the Williams’ home, that Run-
ningeagle and Tilden committed first-degree burglary, and
that Runningeagle and Tilden were guilty of first-degree mur-
der. But I disagree that there was “overwhelming” evidence
that it was Runningeagle, and not Tilden, who stabbed the
victims. The evidence that Runningeagle was the stabber was
far from compelling.

   The trial judge’s view that it was Runningeagle, and not
Tilden, who stabbed the victims, apparently came from three
items of evidence:

    1. The Palmprint: Runningeagle’s palmprint was
    found on a dryer inside the Williams’ home.

    2. The Knife: Runningeagle owned a large sur-
    vival knife that was similar to the type of knife used
    to kill the victims.

    3. Co-Defendant Orva Antone’s Testimony: Co-
    Defendant Orva Antone struck a deal with the prose-
    cution and agreed to testify for the prosecution in
    exchange for the prosecution dismissing murder
    charges against him. On direct examination, Antone
    testified that he witnessed Tilden strike Ms. Williams
    with a flashlight and observed Runningeagle “tease”
    Mr. Williams with a knife. Antone, however, also
    testified that both Tilden and Runningeagle entered
    the Williams’ home, and that he did not see whether
    it was Tilden or Runningeagle who inflicted the stab
    wounds. On cross-examination, Antone admitted
    that he was intoxicated at the time of the murders,
    that he originally told police that he didn’t remember
    anything about the murders because he was drunk,
    that he only knew that the Williamses were stabbed
    because police detectives told him, and that detec-
    tives told him that Runningeagle was the stabber.
                     RUNNINGEAGLE v. RYAN                    8287
Given this record, statements from Melendez that implicated
Tilden as the stabber could have raised enough doubt in the
trial judge’s mind about the identity of the stabber so as to
warrant sparing Runningeagle’s life.

   To be sure, Melendez, like Antone, had credibility prob-
lems. Melendez was a jailhouse informant and Antone was an
accomplice in the murders. See Hon. Stephen S. Trott, Words
of Warning for Prosecutors Using Criminals as Witnesses, 

47 Hastings L.J. 1381

, 1383-85 (1996) (noting that accomplices,
co-conspirators, snitches, and informers make for a “not-so-
reliable” witness). But there is no reason to think that the trial
judge would give greater weight to the testimony of a murder
accomplice who struck a deal with the prosecution than the
testimony of a jailhouse informant.

   Indeed, perhaps the most perplexing aspect of the majority
opinion is its inconsistent treatment of Melendez’s credibility.
First, the majority opinion contends that, had Melendez testi-
fied that Tilden was the stabber, such testimony was unlikely
to be believed because a jailhouse informant is a “notoriously
unreliable source.” Maj. Op. at 8251. But three paragraphs
later, the majority opinion contends that the trial judge would
have sentenced Tilden to death based on Melendez’s testi-
mony. Maj. Op. at 8254. Which is it? Was Melendez, as the
majority opinion claims, so reliable and trustworthy that the
trial judge would have sentenced Tilden to death based on
Melendez’s statements? Or was Melendez, as the majority
opinion also claims, so unreliable that his testimony could not
have affected Runningeagle’s sentence?

  C.   The Majority Misapplies Brady’s Materiality Standard

   Finally, the majority mischaracterizes the relevant inquiry
for determining materiality under Brady. The majority mis-
takenly presumes that there is not a “reasonable probability”
of a life sentence for Runningeagle because evidence showing
that Tilden was the stabber would have only resulted in a
8288                RUNNINGEAGLE v. RYAN
death sentence for Tilden. Maj. Op. at 8254. While it is cer-
tainly possible that testimony implicating Tilden as the stab-
ber could have resulted in a death sentence for Tilden, it is
also reasonably probable that such testimony could have
resulted in a life sentence for Runningeagle. See, e.g., Rom-
pilla v. Beard, 

545 U.S. 374, 393

 (2005) (“[A]lthough we
suppose it is possible that [the sentencer] could have heard it
all and still have decided on the death penalty, that is not the
test.”). Under Brady’s materiality standard, the relevant
inquiry is whether “there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the
proceeding would have been different.” Bagley, 

473 U.S. at 682

. A “reasonable probability” is a probability sufficient to
undermine confidence in the outcome, but is less than the pre-
ponderance more-likely-than-not standard. Kyles, 

514 U.S. at 434

.

   Testimony from Melendez implicating Tilden as the stab-
ber would be just the sort of powerful “lingering doubt” evi-
dence that we have repeatedly described as an “extremely
effective argument” for defendants in the sentencing phase of
a capital case. Lockhart v. McCree, 

476 U.S. 162, 181

 (1986);
see also Cox v. Ayers, 

613 F.3d 883, 898

 (9th Cir. 2010)
(same); Williams v. Woodford, 

384 F.3d 567, 624

 (9th Cir.
2004) (same). Indeed, we have repeatedly relied on a compre-
hensive study of opinions of jurors in death penalty cases that
concluded that “ ‘the best thing a capital defendant can do to
improve his chances of receiving a life sentence has nothing
to do with mitigating evidence . . . . The best thing he can do,
all else being equal, is to raise doubt about his guilt.’ ” Wil-
liams, 

384 F.3d at 624

 (quoting Stephen P. Garvey, Aggrava-
tion and Mitigation in Capital Cases: What Do Jurors
Think?, 

98 Colum. L. Rev. 1538

, 1563 (1998)). See also Cox,

613 F.3d at 898

 (noting significance of defense counsel’s
penalty-phase “non-shooter” theory). Here, statements from
Melendez that implicated Tilden as the stabber could have
raised enough doubt in the trial judge’s mind about the iden-
tity of the stabber so as to warrant sparing Runningeagle’s
                   RUNNINGEAGLE v. RYAN                 8289
life. At a minimum, the question is close enough that Run-
ningeagle is entitled to discovery of Melendez’s statements.
See Pham, 

400 F.3d at 743

.

                      CONCLUSION

   The majority is content to resolve Runningeagle’s
sentencing-phase Brady claim without first requiring prosecu-
tors to disclose Melendez’s statements. Because I would
require the prosecution to turn over all exculpatory material
to Runningeagle, I respectfully dissent.