FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE NINTH CIRCUIT
`
`
`FILED
`
`
`OCT 18 2022
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
`
`
`
`
`
`
` Petitioner-Appellant,
`
`
`
`
`No. 15-99005
`
`
`D.C. No.
`3:04-cv-00122-JAH-JLB
`
`
`
`OPINION
`
`KURT MICHAELS,
`
`
`
` v.
`
`
`RON DAVIS, Acting Warden of San
`Quentin State Prison; ATTORNEY
`GENERAL FOR THE STATE OF
`CALIFORNIA,
`
`
`
`
`
`
`
`
`
`
` Respondents-Appellees.
`
`Appeal from the United States District Court
`for the Southern District of California
`John A. Houston, District Judge, Presiding
`
`Argued and Submitted October 25, 2018
`San Francisco, California
`
`Before: Ronald M. Gould, Marsha S. Berzon, and Carlos T. Bea, Circuit Judges.
`
`Per Curiam Opinion;
`Partial Majority Opinion by Judge Bea
`Dissent by Judge Berzon
`
`
`
`
`
`
`

`

`
`
`
`
`
`
`SUMMARY*
`
`Habeas Corpus/Death Penalty
`
`In a per curiam opinion addressing all issues except penalty phase prejudice, and
`a separate majority opinion addressing penalty phase prejudice, the panel affirmed
`the district court’s judgment denying Kurt Michaels’s habeas corpus petition
`challenging his California conviction and death sentence for the 1988 murder of
`JoAnn Clemons.
`
`
`Per Curiam Opinion
`
`
`Michaels argued that application of the Antiterrorism and Effective Death
`Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d), is unconstitutionally
`retroactive—i.e., that the relevant event to which AEDPA’s legal consequences
`attached is the automatic appeal of his capital sentence in state court, which occurred
`before AEDPA’s effective date. Rejecting this argument, the panel wrote that
`AEDPA attached new legal consequences to petitions for federal habeas relief, not
`to Michaels’s state court litigation—litigation that was resolved on state law grounds
`and substantive rules of constitutional law, both unaffected by AEDPA.
`
`Michaels’s Claim Three challenged, under Miranda v. Arizona, 384 U.S. 436
`(1966), the admission of his confession at both the guilt and penalty phases of trial,
`on the ground that the confession was elicited after Michaels invoked his rights to
`counsel and silence. The panel wrote that the California Supreme Court’s
`conclusion on direct appeal that Michaels did not unambiguously invoke either his
`right to counsel or his right to silence with respect to all questioning is fully
`supported by the record. The California Supreme Court did recognize that Michaels
`selectively invoked his right not to answer a specific question as protected by
`Miranda, but the California Supreme Court neither determined precisely what
`question Michaels had declared off limits nor whether the ensuing interrogation
`impermissibly violated Michaels’s invocation of his right to silence with regard to
`the subject covered by that question. The panel held that the California Supreme
`Court’s decision to ignore a defendant's unambiguous and unequivocal selective
`
`
`* This summary constitutes no part of the opinion of the court. It has been
`
`prepared by court staff for the convenience of the reader.
`
`

`

`
`invocation of his right to silence as to an area of inquiry during a custodial
`interrogation, requiring instead that the refusal be repeated in response to each
`question regarding the subject matter as to which the right was earlier invoked, was
`contrary to the law clearly established by Miranda and its progeny. The panel
`therefore reviewed de novo the aspects of Michaels’s selective invocation of
`Miranda claim, and held that the detectives’ continued questioning regarding
`Michaels’s role in the murder after Michaels’s selective invocation violated his
`Miranda rights, and that admission of the parts of the interrogation in which
`Michaels confessed to “what happened” was constitutional error. The panel held
`that the Miranda violation was harmless as to the guilt phase because the evidence
`presented at
`trial showing
`that Michaels committed capital murder was
`overwhelming even without the confession.
`
`In Claim Four, Michaels argued that his trial lawyers provided ineffective
`assistance of counsel (IAC) by disclosing to the prosecution a confidential note
`Michaels had handed to his lawyers, during the preliminary hearing, stating that he
`would commit violence against his then-codefendant Popik if Popik was not reseated
`away from Michaels (“the Popik note”). The California Supreme Court held that
`introduction of the Popik note violated the attorney-client privilege but was
`harmless. The panel wrote that this IAC claim—which Michaels did not raise on
`initial state habeas review, as required by California law—was procedurally
`defaulted. The panel therefore addressed whether the procedural default is excused
`under Martinez v. Ryan, 566 U.S. 1 (2012), and held that it is. In so holding, the
`panel wrote: (1) the IAC claim is “substantial” under Martinez because (a) the claim
`clearly has some merit, and (b) Michaels demonstrated a substantial claim of
`prejudice resulting from his trial counsel’s deficient performance; and (2) Michaels
`established “cause” under Martinez because (a) Michaels’s initial post-conviction
`relief (PCR) attorneys’ failure to raise the IAC claim was unconstitutionally
`deficient performance, and (b) there is a reasonable probability the PCR court would
`have granted Michaels relief had his PCR counsel raised the trial counsel IAC claim.
`
`Because the procedural default of Claim Four is excused, the panel addressed the
`merits of Michaels’s claim that his counsel was constitutionally deficient, as well
`as—on the merits (in the separate majority opinion)—the cumulative effect of
`counsel’s constitutionally deficient performance and Michaels’s improperly
`admitted confession on the sentencing phase of Michaels’s trial. Applying AEDPA
`review, the panel held that there was no reasonable basis for the state court to have
`concluded that Michaels’s trial counsel’s performance was constitutionally adequate
`as to the disclosure of the Popik note. The panel wrote that under clearly established
`law and prevailing standards of representation at the time, counsel’s breach of
`
`

`

`
`attorney-client confidentiality amounted to constitutionally deficient performance,
`and it was objectively unreasonable for the California Supreme Court to conclude
`otherwise, assuming that it did.
`
`In Claim Six, Michaels contended that the trial court violated Michaels’s Sixth
`Amendment right to counsel by denying his motion to substitute another attorney
`for appointed attorney Richard Grossberg after an irreconcilable conflict with
`Michaels developed. The panel held that the California Supreme Court reasonably
`concluded that the conflict was the result of Michaels’s subjective distrust, and that
`Michaels’s actions triggered the breakdown of the relationship. The panel held that
`the state court’s other conclusion—that Grossberg rendered constitutionally
`adequate assistance as it relates to the attorney-client conflict claim—was also
`reasonable.
`
`In Claim Seven, Michaels argued that his other attorney, Mark Chambers,
`provided ineffective assistance when he advised Michaels to proceed pro se after the
`trial court refused to relieve Grossberg. As it turned out, during both the guilt and
`penalty phases, Chambers conducted the trial proceedings. Given that circumstance,
`the panel agreed with the district court that, whether or not Chambers provided
`constitutionally inadequate advice, Michaels did not show that he was prejudiced.
`
`In Claim Nine, Michaels contended that the trial court erred in not conducting a
`sua sponte competency hearing, and his attorneys were constitutionally ineffective
`for failing to raise the competency issue. The panel held that neither the California
`Supreme Court’s conclusion that the evidence before the trial court was insufficient
`to require a sua sponte competency hearing, nor its rejection of Michaels’s IAC
`competency claim, was unreasonable under AEDPA.
`
`In Claim Thirteen, Michaels argued that the trial court’s denial of his request for
`a continuance before trial on March 26, 1990, violated his due process rights. Given
`that the standard for determining whether a continuance violates due process affords
`the substantial discretion to a trial court, as well as the deference owed under
`AEDPA, the panel held that the circumstances here do not render the California
`Supreme Court’s decision that denial of the continuance was not a due process
`violation unreasonable.
`
`
`Majority Opinion
`
`
`Michaels argued that he is entitled to habeas relief because the introduction of his
`confession and the Popik note during the penalty phase of the trial prejudiced him
`
`

`

`
`by causing the jury to render a death verdict they otherwise would not have in the
`absence of this unconstitutional evidence. Applying the actual prejudice standard
`set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993), the panel held that Michaels
`was not prejudiced by the admission of the confession. The panel explained that
`there is not a single aggravating factor that the jury could have gleaned from
`Michaels's confession evidence that was not otherwise proved by ample admissible
`evidence, nor any piece of mitigation evidence that was rebutted by the confession
`that would otherwise have gone unrebutted; indeed, the confession evidence helped
`support the defense's own theory that Michaels killed Clemons to protect her
`daughter, Christina. Given the limited use of the Popik note and its minimal
`evidentiary value at trial, the panel could not conclude that it had a prejudicial effect
`on the jury, even in combination with the confession evidence. The panel therefore
`rejected Michaels’s claim of cumulative error as to the admission of his confession
`and the Popik note.
`
`In Claim Five, Michaels contended that the prosecutor committed four species of
`misconduct during the penalty-phase closing arguments. Affirming the denial of
`relief on this claim, the panel held: (1) the prosecutor did not commit misconduct by
`arguing Michaels’s interest in devil-worship to the jury based on his own tackle box
`writings and for the proper purpose of rebutting the mitigating evidence of his church
`membership; (2) there is no clearly established federal law that prohibits the
`rhetorical admission of the defendant’s own views of the suitability of the death
`penalty during the sentencing phase of the trial; (3) isolated comments describing
`Michaels as a “contract killer” did not cross into the proscribed territory of arguing
`that Michaels had committed other murders, and do not constitute the sort of
`egregious misconduct that amount to a denial of constitutional due process; and
`(4) given the context of the entire trial and the deferential standard review required
`under AEDPA, the trial was not rendered fundamentally unfair by the prosecutor’s
`use of name-calling and emotional appeals.
`
`In Claim Ten, Michaels argued that he is entitled to effective assistance of
`advisory counsel. In Claim Eleven, Michaels argued that Chambers was ineffective
`at both the guilt and penalty phases because Chambers failed to call as a witness
`Christina's father, Wendell, who would have corroborated Christina's testimony
`about how her mother physically abused her. In Claim Twelve, Michaels argued
`that Chambers was ineffective at the penalty phase because Chambers failed
`adequately to investigate and present evidence (1) that Michaels's mother was
`bipolar; (2) that Michaels's mother physically and emotionally abused him
`throughout his childhood; and (3) that Michaels's methamphetamine use was
`affected by his long-term brain damage, difficult background, and mental illness. As
`
`

`

`
`to Claim Eleven, the panel held that the fact that Chambers admitted that he did not
`consider calling Wendell as a witness does not render the omission per se deficient;
`and that given the limited probative value of Wendell’s testimony, the California
`Supreme Court could have reasonably concluded that the failure to produce such
`testimony was not outside the wide range of professionally competent assistance. As
`to Claim Twelve, the panel held that the California Supreme Court could have
`reasonably found that Chambers was not deficient in failing to inquire further into
`Michaels’s mother’s mental health, that it would not be unreasonable to conclude
`that Chambers’s decision not to investigate further into her abusive conduct was
`reasonable, and that counsel’s decisions concerning drug use and brain damage were
`not unreasonable or deficient. Because Chambers did not render ineffective
`assistance, the panel did not need to decide the threshold question (in Claim Ten)
`whether Michaels had a right to effective assistance of nominally advisory counsel
`where, as here, counsel actually conducted the entire trial, including the penalty
`phase, and made all pertinent decisions.
`
`Judge Berzon concurred in the per curiam opinion, but dissented from the
`majority opinion with respect to the holding that the admission of Michaels’s
`confession and the Popik note did not cumulatively prejudice the penalty phase of
`the trial. She would hold the introduction of Michaels’s complete improperly
`Mirandized confession and of the Popik note cumulatively prejudiced Michael at the
`penalty phase of his trial, and would therefore grant the petition as to the penalty
`phase. She harbors grave doubt that the harmless error standard is met here, and
`could not conclude that there is no reasonable probability that a single juror might
`have spared Michaels had the confession and the note been excluded at the penalty
`phase.
`
`
`

`

`
`
`COUNSEL
`
`Benjamin L. Coleman (argued), Coleman & Balogh LLP, San Diego, California;
`Michael R. Belter, Law Office of Michael R. Belter, Monterey, California; for
`Petitioner-Appellant.
`Michael T. Murphy (argued), Deputy Attorney General; Holly D. Wilkens,
`Supervising Deputy Attorney General; Julie L. Garland, Senior Assistant Attorney
`General; Gerald A. Engler, Chief Assistant Attorney General; Kamala D. Harris,
`Attorney General; Attorney General’s Office, California Department of Justice, San
`Diego, California; for Respondents-Appellees.
`
`

`

`PER CURIAM:
`
`Kurt Michaels was convicted and sentenced to death in California for the
`
`1988 murder of JoAnn Clemons. On appeal from the district court’s denial of his
`
`federal habeas petition, Michaels raised sixteen claims, two of which are
`
`uncertified. Reviewing his appeal under the deferential standards established in the
`
`Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), see 28 U.S.C.
`
`§ 2254(d), we affirm the district court with respect to all claims. This per curiam
`
`opinion addresses all issues except the penalty phase prejudice. The accompanying
`
`separate opinion and dissent address penalty phase prejudice.
`
`A. Murder of JoAnn Clemons
`
`I. Background
`
`In the fall of 1988, twenty-two-year-old Kurt Michaels lived in an apartment
`
`in Oceanside, California, with four roommates. At the time, Michaels was dating
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`sixteen-year-old Christina Clemons, then confined at Broad Horizons, an
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`adolescent rehabilitation facility. Christina’s mother JoAnn Clemons lived nearby,
`
`in Escondido.1 Christina testified at trial that she had been physically and sexually
`
`abused by her mother from an early age. As recently as that September, Christina
`
`
`1 We refer to the victim JoAnn Clemons as “Clemons” and to Christina
`Clemons by her first name.
`
`
`
`1
`
`

`

`said, her mother struck her with a cast iron pan and forced her to engage in digital
`
`penetration and oral sex.
`
`While on release from Broad Horizons for the weekend to stay with her
`
`mother in early September, Christina obtained a key to her mother’s apartment. On
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`September 29, Christina was again released from Broad Horizons for the weekend.
`
`This time, she went to visit Michaels in Oceanside. While there, Christina decided
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`that she “wasn’t going to go through it anymore,” and told Michaels that she
`
`wanted her mother killed. Christina warned Michaels that she would commit
`
`suicide if Clemons were not killed. Velinda Davis, one of Michaels’s roommates,
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`overheard Michaels tell Christina, “Now we can knock off the old lady.”
`
`According to Davis, Christina replied, “And then we can get the money.” Christina
`
`gave Michaels her key to Clemons’s apartment.
`
`The next evening, Michaels asked Mark Hebert, another roommate, if he
`
`wanted to go to Escondido to do a “tax.” According to Hebert, doing a “tax”
`
`referred to collecting a debt, usually through the use of force or the threat of force.
`
`Michaels promised Hebert some of the proceeds of the “tax,” and Hebert agreed to
`
`participate. Michaels also recruited roommate Darren Popik to come along.
`
`Michaels told Popik that Clemons had $100,000 in life insurance coverage, which
`
`would go to Christina, and that these insurance proceeds would help Michaels and
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`Christina start a new life. Michaels promised Popik $2,000 to $5,000 from the
`
`
`
`2
`
`

`

`proceeds of Clemons’s life insurance policy, as well as whatever was found in
`
`Clemons’s apartment. Hebert and Popik arranged for an acquaintance, Joseph
`
`Paulk, to drive the getaway car after the “tax.”
`
`On the night of October 1,2 Michaels and Popik left the Oceanside
`
`apartment, telling Davis that they were going to “tax” someone. At the last minute,
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`Hebert decided not to participate. After Michaels and Popik left, Davis noticed that
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`one of her kitchen knives was missing.
`
`Dennis Crone, Michaels’s former neighbor, testified that Michaels and Popik
`
`visited him at around 7:30 p.m. Michael Crawford, Dennis Crone’s brother-in-law,
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`spent time with Michaels and Popik at Crone’s home and later gave them a ride to
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`an intersection about a mile and a half away from Clemons’s apartment building.
`
`Michaels and Popik stayed outside Clemons’s apartment complex for two or three
`
`hours, waiting for Clemons to go to sleep. Michaels then used the key Christina
`
`had given him to enter the apartment; Popik accompanied him. When Michaels
`
`entered Clemons’s bedroom, he tripped, waking Clemons. Popik initially tried to
`
`flee, but Michaels prevented him from leaving. Popik then began striking Clemons
`
`repeatedly in the face, and Michaels stabbed Clemons in the back with a knife,
`
`
`2 Both the California Supreme Court and Michaels’s opening brief
`misidentified the date of the murder as October 3, 1988. See People v. Michaels,
`28 Cal. 4th 486, 500 (2002). Clemons was in fact murdered in the early hours of
`October 2.
`
`
`
`3
`
`

`

`breaking it. Popik went into the kitchen and brought back another knife. Michaels
`
`used that knife to cut Clemons’s throat.
`
`Shortly after midnight, Clemons’s neighbors heard sounds of a struggle
`
`coming from her apartment and called the police. When officers arrived, a
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`neighbor told them that she had earlier seen two men walking toward Clemons’s
`
`apartment. The officers knocked on the door of Clemons’s apartment while
`
`Michaels and Popik were still inside, but the two escaped via a balcony. Entering
`
`the apartment, officers found Clemons’s body in the bedroom. Popik was arrested
`
`near the apartment complex, but Michaels escaped in the getaway car driven by
`
`Paulk.
`
`After leaving the crime scene, Michaels went to Camp Pendleton, a nearby
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`Marine base, to visit two acquaintances, Rodney Hatch and Leon Madrid. Michaels
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`told Hatch that he had cut a woman’s throat during a robbery; he informed Madrid
`
`and two other witnesses that he was running from the law and “made a motion
`
`across [his] throat with his finger” when asked if he killed someone.
`
`Two weeks later, police arrested Michaels while he was working at a nearby
`
`carnival. Michaels was interrogated soon after his arrest by detectives Allen and
`
`Gaylor. Michaels confessed during the interrogation that he had murdered Clemons
`
`and described the crime in detail. He told interrogators that he had killed Clemons
`
`“so Christina would not have to go back with her mother.” Michaels eventually
`
`
`
`4
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`

`

`signed a statement saying that he had killed Clemons so Christina would not be
`
`forced to live with her mother and “revert to her old habits and problems.” The
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`admissibility of large parts of that confession is a major issue in this appeal.
`
`B. State Trial and Direct Appeal
`
`
`
`Michaels was charged with (1) the capital murder of Clemons with four
`
`special circumstances (financial gain, lying in wait, robbery, and burglary); (2)
`
`robbery; and (3) burglary. All three counts alleged the use of a knife and the
`
`infliction of great bodily injury.
`
`The trial court initially appointed attorneys James Burns and Charles Duff to
`
`represent Michaels. Before trial, Burns was relieved due to conflicts with
`
`Michaels, and Duff was relieved for “personal reasons.” In their place, the trial
`
`court appointed attorneys Richard Grossberg and Mark Chambers. Soon after the
`
`new appointments, Michaels filed two motions to remove Grossberg as lead
`
`counsel, contending that Grossberg was providing ineffective representation, and
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`Grossberg moved to be relieved from the case. The trial court denied both motions.
`
`Michaels, unwilling to work with Grossberg, moved to represent himself. Michaels
`
`was permitted to proceed pro se, but Chambers and Grossberg remained on the
`
`scene as advisory counsel. As it turned out, Chambers conducted the entirety of the
`
`defense case; Grossberg did not participate in the trial. People v. Michaels, 28 Cal.
`
`4th 486, 521 (2002) (“Michaels I”).
`
`
`
`5
`
`

`

`Michaels’s case proceeded to trial in April 1990. The only contested issues
`
`at the guilt phase were the degree of the murder, whether Michaels committed
`
`robbery and burglary, and whether the special circumstances were satisfied.
`
`Michaels maintained that he had killed Clemons to protect Christina from
`
`continued sexual and physical abuse by her mother; the prosecution argued that
`
`Michaels’s motive was stealing Clemons’s property and allowing Christina to
`
`collect the proceeds of her mother’s life insurance policy. Id. at 501. The jury
`
`convicted Michaels on all counts and found all the alleged special circumstances
`
`true. Id. at 500.
`
`The prosecution devoted most of the penalty phase to Michaels’s criminal
`
`history and past misconduct, which included misdemeanor convictions for the theft
`
`of firearms from a neighbor as a juvenile, illegal possession of weapons,
`
`threatening Chad Fuller, and participating in the robbery of Chad Fuller, as well as
`
`multiple arrests. Chad Fuller testified about how Michaels had threatened him with
`
`a gun on one occasion, and a week or two later had helped two other men rob him.
`
`Fuller also testified that Michaels had returned much of the stolen property.
`
`Michaels’s childhood neighbor testified that, as a teenager, Michaels had stolen his
`
`car and gun but later returned them. A childhood friend testified that, as a teenager,
`
`Michaels had shown him a revolver. The prosecution played a tape of Michaels’s
`
`interrogation in full, and also introduced two pieces of paper on which Michaels
`
`
`
`6
`
`

`

`had written lists of names, characterizing each document as a “hit list.” These lists
`
`were admitted to show that Michaels sought a reputation as a professional killer,
`
`not that he intended to kill anyone on the lists. Michaels I, 28 Cal 4th. at 534
`
`In mitigation, Michaels’s sister and mother testified that Michaels’s father
`
`was a violent alcoholic who beat him and his mother; that he witnessed his father
`
`sexually molesting his sister when she was young; and that he had attempted
`
`suicide at age eleven. Michaels’s family moved frequently to avoid his father, but
`
`his father continued to harass the family, and worse—Michaels’s father tried to run
`
`over the children with his car and to kidnap them. Christina’s foster mother also
`
`testified, recounting that she had seen Clemons engage in inappropriate sexual
`
`behavior with Christina. Finally, Michaels introduced testimony from a clinical
`
`psychiatrist, who stated that Michaels suffered from major depressive disorder,
`
`latent schizophrenia, and mixed personality disorder.
`
`The prosecution’s sole evidence on rebuttal was a note Michaels had handed
`
`to his lawyers, James Burns and Charles Duff, during the preliminary hearing
`
`stating that he would commit violence against his then-codefendant Popik if Popik
`
`was not reseated away from Michaels.
`
`After penalty phase closing arguments, the jury deliberated for three days
`
`before returning a death verdict.
`
`
`
`7
`
`

`

`On automatic appeal, the California Supreme Court affirmed Michaels’s
`
`conviction and sentence. Michaels I, 28 Cal 4th at 542. The United States Supreme
`
`Court denied certiorari. Michaels v. California, 538 U.S. 1058, 1058 (2003).
`
`C. State and Federal Habeas Proceedings
`
`In 1998, while his direct appeal was pending, Michaels filed a state habeas
`
`petition with the California Supreme Court. The Court denied that petition in a
`
`one-page summary order.
`
`Thereafter, Michaels filed a federal habeas petition in the U.S. District Court
`
`for the Southern District of California. The district court concluded that several of
`
`the claims in the petition were unexhausted and granted a stay to allow Michaels to
`
`exhaust those claims. Michaels then filed a second state habeas petition with the
`
`California Supreme Court, which was denied in a one-page summary order.
`
`After exhausting his claims in state court, Michaels filed an amended federal
`
`habeas petition. In a series of decisions, the district court denied each of Michaels’s
`
`claims on the merits. It also found that several of Michaels’s claims had been
`
`procedurally defaulted but did not address whether cause and prejudice existed to
`
`excuse the defaults, instead addressing the merits of those claims. In February
`
`2015, the district court entered judgment denying Michaels’s petition on the merits,
`
`
`
`8
`
`

`

`granted a stay of execution, and certified twenty-three issues for appeal. Michaels
`
`timely appealed, raising fourteen certified and two uncertified issues.3
`
`II. Standard of Review
`
`A. The AEDPA Framework
`
`Michaels filed his federal habeas petition after AEDPA’s effective date, so
`
`AEDPA deference applies to claims adjudicated on the merits in state court. See
`
`Lindh v. Murphy, 521 U.S. 320, 326 (1997). We may grant a habeas petition
`
`challenging a state conviction only if the state court adjudication:
`
`(1) resulted in a decision that was contrary to, or involved an
`unreasonable application of, clearly established Federal law, as
`determined 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.
`
`
`28 U.S.C. § 2254(d). These standards are “highly deferential” to the state court.
`
`Davis v. Ayala, 576 U.S. 257, 269 (2015).
`
`A state court’s decision is contrary to clearly established federal law if
`its decision contradicts the governing law articulated by the Supreme
`Court or reaches a result different than that reached by the Supreme
`Court on materially indistinguishable facts. See Terry Williams v.
`Taylor, 529 U.S. 362, 405-06 (2000). A state court’s decision is an
`unreasonable application of clearly established federal law when the
`
`
`3 Michaels raises the two uncertified issues in his opening brief. We construe
`the briefing of those issues as a motion to expand the certificate of appealability,
`U.S. Ct. of App. 9th Cir. R. 22-1(e), but deny certification. The claims referenced
`throughout this opinion are the fourteen certified claims argued in Michaels’s
`briefing.
`
`
`
`9
`
`

`

`state court identifies the correct legal rule, but applies it to a new set of
`facts in a way that is objectively unreasonable. See id. at 407.
`
`Murray v. Schriro, 882 F.3d 778, 801 (9th Cir. 2018). “[W]e may only hold that a
`
`state court’s decision was based on an unreasonable determination of the facts if
`
`‘we [are] convinced that an appellate panel, applying the normal standards of
`
`appellate review, could not reasonably conclude that the finding is supported by
`
`the record.’” Murray v. Schriro, 745 F.3d 984, 999 (9th Cir. 2014) (quoting Taylor
`
`v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004)). In other words, “[a] state court’s
`
`determination that a claim lacks merit precludes federal habeas relief so long as
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`‘fairminded jurists could disagree’ on the correctness of the state court’s decision.”
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`Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado,
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`541 U.S. 652, 664 (2004)). Where the state court adjudicated the merits of a claim
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`in a summary decision rather than a reasoned opinion, “the habeas petitioner’s
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`burden still must be met by showing there was no reasonable basis for the state
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`court to deny relief.” Id. at 98.
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`Although AEDPA sets a formidable standard, “[d]eference does not by
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`definition preclude relief. A federal court can disagree with a state court’s . . .
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`determination and, when guided by AEDPA, conclude the decision was
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`unreasonable.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). If the petitioner
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`does manage to surmount the hurdles of § 2254, we then resolve the entire claim
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`de novo, including any issues the state court did not reach because of the wrong
`10
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`

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`turn it took, “without the deference AEDPA otherwise requires.” Liao v. Junious,
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`817 F.3d 678, 688 (9th Cir. 2016) (quoting Panetti v. Quarterman, 551 U.S. 930,
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`953 (2007)).
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`B. Retroactivity of AEDPA
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`Michaels first raises a supervening argument—that § 2254(d) should not
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`apply to his case at all.4 He recognizes that § 2254(d) applies as a statutory matter
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`but contends that such an application is unconstitutionally retroactive, in violation
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`of the Due Process Clause.
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`This contention rests on a mistaken understanding of retroactivity. A
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`statutory provision’s application is considered retroactive only if “the new
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`provision attaches new legal consequences to events completed before its
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`enactment.” Landgraf v. USI Film Products, 511 U.S. 244, 270 (1994); see id. at
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`269-70. Where a federal statute is retroactive in that sense, due process concerns
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`arise because the Fifth Amendment’s Due Process Clause “protects the interests in
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`fair notice and repose that may be compromised by retroactive legislation.” Id. at
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`266.
`
`
`4 Michaels also contends in passing that 28 U.S.C. § 2254(e), which limits
`federal court authority to conduct evidentiary hearings, and § 2253, which requires
`federal petitioners to secure a certificate of appealability before proceeding with an
`appeal, are unconstitutionally retroactive as applied to his case. We reject these
`arguments for the same reason we reject his argument regarding § 2254(d).
`11
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`

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`Michaels identifies no events completed before the enactment of AEDPA to
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`which § 2254 “attach[ed] new legal consequences.” Id. at 270. Michaels argues
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`that the relevant “event” to which legal consequences attached is the automatic
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`appeal of his capital sentence in state court, which occurred before AEDPA’s
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`effective date. But nothing in AEDPA affected the automatic appeal.
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`Section 2254(d) “place[d] a new constraint on the power of a federal habeas court
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`to grant a state prisoner’s application for a writ of habeas corpus.” Williams v.
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`Taylor, 529 U.S. 362, 412 (2000). The provision attached new legal consequences
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`to petitions for federal habeas relief, not to Michaels’s state court litigation. That
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`litigation was resolved on state law grounds and substantive rules of constitutional
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`law, both unaffected by AEDPA.
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`For similar reasons, Michaels’s attempt to analogize his case to Ixcot v.
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`Holder, 646 F.3d 1202 (9th Cir. 2011), is unavailing. Ixcot held impermissibly
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`retroactive the application of a statute disqualifying immigrants who illegally
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`reenter the country from certain forms of discretionary relief. In Ixcot, the
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`petitioner had taken affirmative steps to seek such relief before the law’s effective
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`date. Id. at 1209-10. Michaels’s case is not like Ixcot, as Michaels did not take
`
`
`
`12
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`affirmative steps to seek federal habeas relief—the relevant form of relief as to
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`which AEDPA created new legal limitations—before AEDPA was enacted.5
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`The Supreme Court has unequivocally held that AEDPA applies to federal
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`habeas petitions filed after the statute’s effective date, Woodford v. Garceau, 538
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`U.S. 202,