FOR PUBLICATION
`
`FILED
`
`NOV 7 2022
`
`UNITED STATES COURT OF APPEALS
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
`FOR THE NINTH CIRCUIT
`
`DANNY LEE JONES,
`
`No. 18-99005
`
`Petitioner-Appellant,
`
`D.C. No. 2:01-cv-00384-SRB
`
` v.
`
`CHARLES L. RYAN,
`
`Respondent-Appellee.
`
`ORDER AND AMENDED
`OPINION
`
`Appeal from the United States District Court
`for the District of Arizona
`Hon. Susan R. Bolton, District Judge, Presiding
`
`Argued and Submitted February 16, 2021
`San Francisco, California
`
`BEFORE: S.R. THOMAS, and HAWKINS, and CHRISTEN, Circuit Judges
`
`Order;
`Amended Opinion by Judge S.R. Thomas;
`Dissent from Order by Judge Bennett;
`Dissent from Order by Judge Ikuta
`
`

`

`
`
`
`
`SUMMARY*
`
`Habeas Corpus / Death Penalty
`
`
`
`
`The panel filed an amended opinion, denied a petition for panel rehearing, and
`denied on behalf of the court a petition for rehearing en banc, in a case in which the
`panel, applying the appropriate standards pursuant to the Antiterrorism and Effective
`Death Penalty Act of 1996 (AEDPA), reversed the district court’s judgment denying
`Danny Lee Jones’s habeas corpus petition challenging his Arizona death sentence,
`and remanded to the district court with instructions to issue the writ.
`
`In Claim 1, Jones asserted that his trial counsel was constitutionally ineffective
`by failing to request a mental health expert in advance of the sentencing
`hearing. The panel held that the state court record demonstrates that trial counsel
`was constitutionally ineffective by failing to secure a defense mental health expert,
`and that, pursuant to 28 U.S.C. § 2254(d)(1), the Arizona Supreme Court’s contrary
`conclusion was an unreasonable application of Strickland v. Washington, 466 U.S.
`668 (1984), and its progeny. Holding that the state post-conviction review (PCR)
`court’s decision was also based on an unreasonable determination of the facts under
`28 U.S.C. § 2254(d)(2), the panel agreed with Jones that (1) the PCR court employed
`a defective fact-finding process when it denied PCR counsel’s funding request for a
`defense neuropsychological expert, effectively preventing the development of Claim
`1; and (2) the state court’s failure to hold a hearing on Claim 1 resulted in an
`unreasonable determination of the facts. The panel wrote that if the state court had
`reached the question of Strickland prejudice, the panel would be required to afford
`the decision deference under AEDPA, but because the PCR court did not reach the
`issue of prejudice, the panel reviewed the issue de novo. Noting that Jones was
`diligent in attempting to develop the factual basis for the claim in state court, the
`panel wrote that the district court did not err in its expansion of the record, and the
`panel considered the evidence developed in the district court in conducting its de
`novo review. The panel wrote that on de novo review, it must weigh the aggravating
`factors against the mitigation evidence, as developed in the state court record that
`was available, but not presented. The panel also considered the mitigation evidence
`that was presented. Reweighing the evidence in aggravation against the totality of
`
`
`* This summary constitutes no part of the opinion of the court. It has been
`
`prepared by court staff for the convenience of the reader.
`
`

`

`
`the available mitigating evidence, the panel concluded that there is at least a
`reasonable probability that development and presentation of mental health expert
`testimony would have overcome the aggravating factors and changed the result of
`the sentencing proceeding. The panel therefore concluded on de novo review that
`Jones demonstrated Strickland prejudice, and, accordingly, reversed the district
`court’s denial of relief on Claim 1.
`
`In Claim 2, Jones asserted that his trial counsel was constitutionally ineffective
`by failing
`to seek neurological or neuropsychological
`testing prior
`to
`sentencing. The panel wrote
`that counsel’s
`failure
`to promptly seek
`neuropsychological testing ran contrary to his obligation to pursue reasonable
`investigations under Strickland, and in particular, his obligation to investigate and
`present evidence of a defendant’s mental defect. The panel therefore concluded that
`the PCR court’s decision that defense counsel’s performance did not fall below an
`objectively reasonable standard was an unreasonable application of Strickland, and
`that Jones satisfied § 2254(d)(1). The panel also held that the state PCR court’s
`decision was based on an unreasonable determination of the facts, satisfying
`§ 2254(d)(2), where the PCR judge made factual findings regarding the necessity
`of neuropsychological testing, not on the basis of evidence presented by Jones, but
`on the basis of his own personal conduct, untested memory, and understanding of
`events—and by plainly misapprehending the record, which included a forensic
`psychiatrist’s
`testimony,
`six years
`earlier,
`strongly
`suggesting
`that
`neuropsychological testing was essential. Because the PCR court did not reach the
`issue of prejudice, the panel reviewed the issue de novo. Noting that Jones was
`diligent in attempting to develop the factual basis for the claim in state court, the
`panel wrote that the district court did not err in its expansion of the record, and the
`panel considered the evidence developed in the district court in conducting its de
`novo review. The panel concluded that Jones demonstrated Strickland prejudice
`because there is a reasonable probability that had such testing been conducted, and
`had the results been presented at sentencing, Jones would not have received a death
`sentence. The panel wrote that, in combination, the testing results and the
`presentation of contributing factors would have dramatically affected any sentencing
`judge’s perception of Jones’s culpability for his crimes, even despite the existence
`of aggravating factors.
`
`Because the panel determined that Jones is entitled to relief and resentencing on
`the basis of Claims 1 and 2, the panel did not reach whether new evidence presented
`at the federal evidentiary hearing fundamentally altered these claims such that they
`were unexhausted, procedurally defaulted, and excused in light of Dickens v. Ryan,
`740 F.3d 1302 (9th Cir. 2014) (en banc), and Martinez v. Ryan, 566 U.S. 1
`
`

`

`
`(2012). The panel likewise did not reach the merits of any of Jones’s other claims.
`
`Judge Bennett, joined by Judges Callahan, R. Nelson, Bade, Collins, Lee, Bress,
`Bumatay, and VanDyke, dissented from the denial of rehearing en banc. He wrote
`that the panel improperly and materially lowered Strickland’s highly demanding
`standard and failed to afford the required deference to the district court’s findings—
`essentially finding that no such deference was due. He wrote that the court should
`have taken this case en banc (1) to secure and maintain uniformity in our case law;
`(2) because this case involves issues of exceptional importance; and (3) so that the
`Supreme Court, which has already vacated this court’s judgment once in this case,
`does not grant certiorari a second time and reverse.
`
`Judge Ikuta, joined by Judges Callahan and VanDyke, dissented from the denial
`of rehearing en banc. She agreed with Judge Bennett that even if the panel had been
`correct in conducting a de novo review of the state court’s decision, it erred in failing
`to defer to the district court’s factual findings. In her view, however, the panel had
`no business conducting such a de novo review in the first place. She wrote that in
`reaching the issue of prejudice de novo, the panel mischaracterized the state court
`opinion and disregarded the admonitions of the Supreme Court to give such opinions
`proper deference.
`
`
`
`
`COUNSEL
`
`
`
`Amanda Bass (argued) and Leticia Marquez, Assistant Federal Public Defenders;
`Jon M. Sands, Federal Public Defender, District of Arizona; Federal Public
`Defenders’ Office, Tucson, Arizona; Jean-Claude André, Bryan Cave Leighton
`Paisner LLP, Santa Monica, California; Barbara A. Smith and J. Bennett Clark,
`Bryan Cave Leighton Paisner LLP, St. Louis, Missouri; Kristin Howard Corradini,
`Bryan Cave Leighton Paiser LLP, Chicago, Illinois; for Petitioner-Appellant.
`Jeffrey L. Sparks (argued), Assistant Attorney General, Capital Litigation Section;
`Lacey Stover Gard, Chief Counsel; Mark Brnovich, Attorney General of Arizona;
`Office of the Attorney General, Phoenix, Arizona; for Respondent-Appellee.
`
`
`

`

`ORDER
`
`The opinion filed June 28, 2021, Jones v. Ryan, 1 F.4th 1179 (9th Circ.
`
`2021) is amended and superseded by the opinion filed concurrently with this order.
`
`The full court has been advised of the petition for rehearing en banc. A
`
`judge of this Court requested a vote on the petition for rehearing en banc. A
`
`majority of the non-recused active judges did not vote to rehear the case en banc.
`
`Fed. R. App. 35. The petition for panel rehearing and for rehearing en banc is
`
`DENIED. No further petitions for panel rehearing or rehearing en banc will be
`
`entertained.
`
`Amended Opinion by Judge Sidney R. Thomas
`
`S.R. THOMAS, Circuit Judge:
`
`Danny Lee Jones, an Arizona inmate on death row, appeals the district
`
`court’s denial of his petition for writ of habeas corpus on remand from this court
`
`and the Supreme Court of the United States. Applying the appropriate standards
`
`pursuant to the Antiterrorism and Effective Death Penalty Act of 1996
`
`(“AEDPA”), we conclude that Jones was denied the effective assistance of counsel
`
`at sentencing. We reverse the judgment of the district court and remand for further
`
`proceedings consistent with this opinion.
`
`1
`
`

`

`I1
`
`A
`
`On March 26, 1992, in Bullhead City, Arizona, Jones and his friend Robert
`
`Weaver spent the day drinking and using crystal methamphetamine in Weaver’s
`
`garage. At some point, a fight broke out, and evidence at trial indicated that Jones
`
`hit Weaver over the head multiple times with a wooden baseball bat, killing him.
`
`Jones then went inside the house where he encountered Weaver’s grandmother,
`
`Katherine Gumina. Jones struck Gumina in the head with the bat and knocked her
`
`to the ground. Jones then made his way to a bedroom where he found Tisha
`
`Weaver, Weaver’s seven-year-old daughter, hiding under the bed. Evidence
`
`showed that Jones hit Tisha in the head with the bat, and either strangled her or
`
`suffocated her with a pillow. Jones fled to Las Vegas, Nevada, where police
`
`eventually arrested him. He was indicted in Arizona on two counts of murder in
`
`the first degree, and one count of attempted murder.2
`
`1 In accordance with our obligation under Cullen v. Pinholster, 563 U.S. 170
`(2011), to consider only the state court record in conducting our 28 U.S.C.
`§ 2254(d) analysis, this recitation of the facts looks only to that record. Evidence
`developed at the federal evidentiary hearing is included later in the limited contexts
`where Pinholster does not circumscribe our consideration of such evidence.
`
`2 Gumina initially survived the attack and was in a coma for seventeen
`months before eventually dying from her injuries. The prosecution never amended
`(continued...)
`
`2
`
`

`

`B
`
`A public defender was assigned to Jones’s case. At the time, the public
`
`defender had been an attorney for a little more than three years, and he had never
`
`been a lead attorney on a capital case. He requested $5,000 from the trial court for
`
`expert witnesses. The court authorized $2,000, which the public defender split
`
`between a crime scene investigator and an addictionologist.
`
`The jury convicted Jones on all counts. Judge James Chavez scheduled the
`
`sentencing hearing for three months later. About six weeks before the hearing,
`
`counsel took his first trip to Reno, Nevada, in order to speak with Jones’s mother,
`
`Peggy Jones3, and Jones’s second step-father, Randy Jones, in order to investigate
`
`potential mitigation evidence.
`
`At sentencing, the public defender presented testimony from two witnesses:
`
`investigator Austin Cooper and Randy Jones. Cooper testified about evidence
`
`regarding an alleged accomplice. Randy explained that he married Peggy when
`
`2(...continued)
`the indictment after Gumina died.
`
`3 To avoid confusion, we refer to the members of Jones’s family by their
`first names.
`
`3
`
`

`

`Jones was seven years old.4 He explained that Peggy gave birth to Jones when she
`
`was only fifteen years old and had numerous complications during the pregnancy
`
`and delivery. Randy testified that Jones suffered multiple head injures when he
`
`was growing up, and that when Jones was thirteen or fourteen his personality
`
`began to change drastically. Jones started lying, cutting classes at school, drinking,
`
`and doing drugs. Jones’s first step-grandfather introduced him to marijuana when
`
`he was about ten years old, and Jones was an alcoholic by the time he was
`
`seventeen.
`
`The trial court appointed the Chief of Forensic Psychiatry for the
`
`Correctional Health Services in Maricopa County, Dr. Jack Potts, to examine Jones
`
`and provide a report to the court pursuant to Rule 26.5 of the Arizona Rules of
`
`Criminal Procedure.5 Defense counsel called Dr. Potts to testify at sentencing. Dr.
`
`Potts stated that in conducting his review, he spent four hours interviewing Jones
`
`in prison, one and a half of which were spent administering a personality test. He
`
`also spoke to Jones for a couple of hours the day before testifying at the sentencing
`
`4 The record is inconsistent whether Randy and Peggy married when Jones
`was seven or eight years old.
`
`5The Rule provides: “At any time before the court pronounces a sentence, it
`may order the defendant to undergo a mental health examination or diagnostic
`evaluation. Unless the court orders otherwise, any report concerning such an
`examination or evaluation is due at the same time as the presentence report.”
`
`4
`
`

`

`hearing. He interviewed Peggy by phone for thirty minutes, and he spoke to
`
`Randy for one hour the day before testifying. During Dr. Potts’s testimony, the
`
`following colloquy took place:
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`Do you feel you have been provided with adequate data,
`coupled with your in-person examination of the
`defendant, to make a conclusion for mitigating findings
`that you did?
`
`. . . . I believe everything I reviewed and what I have
`heard about the case and reviewed with the defendant, his
`comments to me. I would have liked, and I think I have –
`I think it would be valuable to have had some neurologic
`evaluations, not – by a neurologist, clinical exam, such as
`a CAT scan, possibly an MRI, possibly EEG, possibly
`some sophisticated neurological testing, because I think
`there’s very strong evidence that we have . . . , I believe,
`of traumatic brain injury, and there’s some other
`evidence that I believe we may have organic neurologic
`dysfunctions here that has gone on since he’s been about
`13. So, there’s some other testing that I think would be
`valuable to have to pin down the diagnosis. . . .
`
`And you think that further testing might shed some
`additional light on, perhaps, some of these factors you
`listed and maybe why Mr. Jones behaves in the way he
`did on March 26, 1992?
`
`Yes. I think it could help in clarifying and giving us
`etiology as the behavioral components, the explosive
`outbursts, the aggression, the mood changes, and the
`changes that occurred in his personality as noted by his
`mother when he was about 13, 14 years old.
`
`5
`
`

`

`Q.
`
`A.
`
`In your opinion, could that information possibly provide
`. . . a significant mitigating factor as to what would be
`relevant to the issues at this hearing?
`
`Clearly I think it would be corroborative of my clinical
`impressions and my diagnostic impressions in my report.
`
`Dr. Potts discussed the fact that Jones’s first step-father physically and
`
`verbally abused Jones, and stated that it was “unequivocal” that Jones carried that
`
`abuse with him into his adult life. Dr. Potts also stated that, given the long history
`
`of substance abuse and other psychological problems in Jones’s family, Jones was
`
`predisposed for substance abuse or a possible affective disorder. Dr. Potts did not,
`
`however, give a specific diagnosis, but stated: “I think . . . to a reasonable degree
`
`of medical certainty that the defendant suffers from a [cyclothymic] disorder,
`
`which is a mood disorder, possibly organic syndrome, secondary to the multiple
`
`cerebral trauma that he’s had as well as the prolonged substance abuse.”
`
`Dr. Potts testified that the drugs and alcohol Jones had on the day of the
`
`murders would have had a significant effect on Jones because “it’s real clear that
`
`the brain is much more susceptible when it’s been injured by drugs. Furthermore,
`
`when you’re on drugs, you are more susceptible to the acts of aggression under
`
`amphetamines.” He further stated that “I believe in my experience in cases like
`
`6
`
`

`

`this, is that had it not been for the intoxication, the alleged offense would not have
`
`occurred.”
`
`Dr. Potts also submitted a six-page report to the court. The report included
`
`approximately two pages describing Jones’s social development and history,
`
`including his medical history, one page of analysis, and one page of
`
`recommendations. Dr. Pott’s report was due to the court on November 29, 1993,
`
`but he did not complete it until December 3. He was late because he did not
`
`receive the Presentence Information Report (“PSR”) from the Mohave County
`
`probation department until December 1. Dr. Potts also testified at sentencing that
`
`he was under “significant time pressure” in preparing the report. Dr. Potts
`
`concluded that “Mr. Jones’ capacity to conform his conduct to that of the law was
`
`clearly impaired at the time of the offenses. . . .” He therefore recommended that
`
`an aggravated sentence should not be imposed.
`
`After Dr. Potts testified, counsel moved for a continuance so an expert could
`
`conduct psychological testing. Counsel stated: “It’s not a delay tactic . . . [I]t’s not
`
`something I planned on doing until . . . very recently after the report was done,
`
`after talking with Dr. Potts, after exploring all these issues.” Notably, however,
`
`counsel did not speak to Dr. Potts about the report until December 7, the night
`
`before sentencing. The sentencing judge considered and rejected the motion:
`
`7
`
`

`

`THE COURT:
`
`. . . . I also know that there were funds made
`available to the defense at some point and you used them
`to hire [an addictionologist]. . . . [I]f there were any
`follow-up questions of a psychological or neurological
`nature, I would think that the defense would have
`followed them up.
`
`COUNSEL:
`
`But, Your Honor, respectfully, . . . I didn’t realize this
`issue was that important until Dr. Potts brought it up or I
`would have certainly asked for the funds earlier.
`
`The judge found the following aggravating factors for Weaver’s murder: (1)
`
`Jones “committed the offense as consideration for the receipt, or in expectation of
`
`the receipt of anything of pecuniary value”; (2) Jones “committed the offenses in
`
`an especially heinous or depraved manner”; (3) Jones was “convicted of one or
`
`more other homicides . . . which were committed during the commission of the
`
`offense.”
`
`Under Arizona’s then-existing death penalty statute, the trial judge held an
`
`aggravation/mitigation hearing to determine whether a death sentence was
`
`warranted. Ariz. Rev. Stat. § 13-703(B) (1993). The judge had to impose a death
`
`sentence if he found “one or more of the [enumerated statutory] aggravating
`
`circumstances . . . and that there [were] no mitigating circumstances sufficiently
`
`substantial to call for leniency.” Id. § 13-703(E).
`
`8
`
`

`

`The judge found four non-statutory mitigating factors: (1) Jones suffered
`
`from long-term substance abuse; (2) he was under the influence of drugs and
`
`alcohol at the time of the offense; (3) he had a chaotic and abusive childhood; and
`
`(4) his longstanding substance abuse problem may have been caused by genetic
`
`factors and aggravated by head trauma. The judge found the same aggravating and
`
`mitigating circumstances for Tisha’s murder, but he also found that Tisha’s having
`
`been less than fifteen years old was an additional aggravating factor. The judge
`
`sentenced Jones to two death sentences for the murders, and twenty-five years
`
`without the possibility of parole for the attempted murder. The Arizona Supreme
`
`Court affirmed Jones’s conviction and sentence on direct review. State v. Jones,
`
`917 P.2d 200 (1996).
`
`C
`
`Prior to filing Jones’s state post-conviction review (“PCR”) petition, PCR
`
`counsel sought authorization from the court for the funding of several experts.
`
`As relevant here, the PCR court rejected counsel’s request to appoint a
`
`neuropsychologist. The court stated that while Dr. Potts might not have been a
`
`defense expert, he did a good job, gave “defense opinions,” and there was no
`
`reason to believe that an expert appointed for the defense “would have been any
`
`different.” The court concluded by stating that based on Dr. Potts’s testimony, “I
`
`9
`
`

`

`don’t really see any grounds for any additional psychiatric or psychological
`
`testing.”
`
`On July 1, 1999, counsel filed the PCR petition, raising twenty-five claims.
`
`Among the petition’s exhibits were a declaration from defense trial counsel and an
`
`affidavit from Peggy. At an informal conference on February 23, 2000, the court
`
`ruled on several of Jones’s claims, and set others for an evidentiary hearing. In
`
`particular, the court denied Claim 1 (as numbered in this appeal) on the merits.
`
`The court set Claim 2 (as numbered in this appeal), as well as other claims, for
`
`evidentiary hearing.
`
`At the evidentiary hearing, Randy, Peggy, and defense trial counsel testified.
`
`Randy testified that he first spoke to counsel in July 1992, a few months after
`
`Jones’s arrest. During this conversation, Randy told counsel about Jones’s head
`
`injuries, as well as his struggles with substance abuse and stints in rehabilitation
`
`programs. Randy next spoke to counsel when he came to visit Peggy and Randy at
`
`their home in Reno in October 1993, about six weeks before sentencing.
`
`Peggy testified that she had provided counsel with a chronology of Jones’s
`
`life during counsel’s visit. Peggy remembered sharing about Jones’s difficult birth
`
`and the physical abuse she and Jones suffered at the hands of Jones’s biological
`
`father and first step-father. Peggy shared that Jones had a good home life and a
`
`10
`
`

`

`normal childhood once she married Randy, when Jones was about seven or eight
`
`years old.
`
`Trial counsel testified that at the time he was appointed to represent Jones,
`
`he had been an attorney for three and a half years and his experience with capital
`
`cases consisted of having been second chair at the penalty phase in one prior case.
`
`He stated that his strategy for defending the killing of Robert Weaver was
`
`self-defense, so he hired Dr. Sparks as an addictionologist to testify about Jones’s
`
`state of mind. Dr. Sparks opined at trial that because of the drugs Jones ingested,
`
`he was unable to premeditate the killings. Dr. Sparks was not called to testify at
`
`sentencing.
`
`When PCR counsel asked trial counsel if he visited Jones’s family early
`
`enough in the case to adequately develop mitigation evidence, trial counsel
`
`responded that Dr. Potts was able to make effective use of the information obtained
`
`from the family. He said that Dr. Potts was a “very favorable mitigation witness
`
`for the defense.” He stated that it felt to him like Dr. Potts was part of the defense
`
`team, even though he was appointed as a court expert. Finally, counsel stated that
`
`he did not consider the need for testing by a neuropsychologist until Dr. Potts
`
`suggested it to him on December 7, 1993, the evening before Jones’s sentencing
`
`hearing.
`
`11
`
`

`

`In the affidavit he provided as an exhibit to the PCR petition, trial counsel
`
`stated that he asked the court for $5,000 for expert witnesses at trial. When the
`
`trial court authorized only $2,000 of the $5,000 he requested, he “was of the
`
`opinion that it would be fruitless to ask the court for additional funding for any
`
`other needed experts such as an independent psychiatrist or psychologist.”
`
`Counsel added that he did not ask his supervisor for any money because he
`
`believed that the public defender’s office did not have sufficient funds for retaining
`
`expert witnesses.
`
`After the hearing, the PCR court denied Claim 2 as well as the remaining
`
`pending claims. As to Claim 2, the court stated that “[t]he report and testimony of
`
`Dr. Potts[,] who was appointed by the Court, adequately addressed defendant’s
`
`mental health issues at sentencing.”
`
`Jones filed a petition for review in the Arizona Supreme Court, which it
`
`denied on February 13, 2001.
`
`D
`
`Jones subsequently filed his federal petition for habeas relief. The district
`
`court granted an evidentiary hearing with regard to Claims 1 & 2 based on trial
`
`counsel’s failure to secure the appointment of a mental health expert and failure to
`
`move for neurological and neuropsychological testing.
`
`12
`
`

`

`The district court subsequently dismissed both ineffective assistance of
`
`counsel (“IAC”) claims. The court denied Claim 1 because counsel’s “failure to
`
`seek the appointment of a mental health expert in a more timely manner did not
`
`prejudice Petitioner.” The district court explained that “the Court has not been
`
`presented with evidence confirming that Petitioner suffers from neurological
`
`damage caused by head trauma or other factors. Therefore, Dr. Potts’s finding at
`
`sentencing remains the most persuasive statement in the record that neurological
`
`damage constituted a mitigating factor.” The district court dismissed Claim 2 after
`
`finding that Jones could only prove that he suffered from AD/HD residual type and
`
`possibly a low level mood disorder. The district court “conclud[ed] that the trial
`
`court would have assigned minimal significance to testimony indicating that
`
`Petitioner suffered from ADHD [sic] and a low-level mood disorder, and that this
`
`weight would not have outbalanced the factors found in aggravation.”
`
`E
`
`Jones timely appealed the district court’s denial of his petition for a writ of
`
`habeas corpus. We reversed the district court and concluded that Jones received
`
`IAC warranting relief on his claims regarding his counsel’s failure to secure the
`
`appointment of a mental health expert, failure to timely move for neurological and
`
`13
`
`

`

`neuropsychological testing, and failure to present additional mitigation witnesses
`
`and evidence. See Jones, 583 F.3d at 636.
`
`The State petitioned for certiorari. The Supreme Court granted the petition,
`
`vacated our judgment, and remanded the case for further consideration in light of
`
`Pinholster. See Ryan v. Jones, 563 U.S. 932 (2011).
`
`On remand from the Supreme Court, we remanded the case to the district
`
`court to consider, under Martinez v. Ryan, 566 U.S. 1 (2012), and Dickens v. Ryan,
`
`740 F.3d 1302 (9th Cir. 2014) (en banc), “Jones’s argument that his ineffective
`
`assistance of counsel claims are unexhausted, and therefore procedurally defaulted,
`
`and that the deficient performance by his counsel during his post-conviction relief
`
`case in state court excuses the default.” Jones v. Ryan, 572 F. App’x 478 (9th Cir.
`
`2014) (Mem.). We expressed “no opinion on any other issue raised on appeal,”
`
`and noted that “[t]hose issues are preserved for later consideration by the Court, if
`
`necessary.” Id.
`
`On remand, the district court rejected Jones’s arguments. The district court
`
`determined that Jones’s claims had not been fundamentally altered, and therefore,
`
`they had previously been exhausted and were not subject to de novo review.
`
`Additionally, the court concluded that PCR counsel was not ineffective as required
`
`by Martinez, so any default would not be excused anyway. 566 U.S. 1. Jones filed
`
`14
`
`

`

`a timely notice of appeal and stated that he was also appealing “all prior orders
`
`disposing of other claims, either on the merits or procedurally.”
`
`II
`
`We review de novo a district court’s dismissal of a habeas petition. Sexton
`
`v. Cozner, 679 F.3d 1150, 1153 (9th Cir. 2012). We review a district court’s
`
`findings of fact for clear error. Stanley v. Schriro, 598 F.3d 612, 617 (9th Cir.
`
`2010).
`
`Because Jones filed his petition after April 24, 1996, AEDPA applies to our
`
`review of this petition. See Summers v. Schriro, 481 F.3d 710, 712 (9th Cir. 2007).
`
`Under AEDPA, habeas relief may not be granted unless the state court’s decision
`
`was: (1) “contrary to, or involved an unreasonable application of, clearly
`
`established Federal law, as determined by the Supreme Court of the United States;”
`
`or (2) “based on an unreasonable determination of the facts in light of the evidence
`
`presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)–(2).
`
`“A state court decision is ‘contrary to’ clearly established Supreme Court
`
`precedent if the state court applies a rule that contradicts the governing law set
`
`forth in Supreme Court cases or if the state court confronts a set of facts materially
`
`indistinguishable from those at issue in a decision of the Supreme Court and,
`
`nevertheless, arrives at a result different from its precedent.” Lambert v. Blodgett,
`
`15
`
`

`

`393 F.3d 943, 974 (9th Cir. 2004) (citing Lockyer v. Andrade, 538 U.S. 63, 73
`
`(2003)) (emphasis in original).
`
`A state court’s decision is an “unreasonable application” of federal law if it
`
`“identifies the correct governing principle from [the Supreme] Court’s decisions
`
`but unreasonably applies that principle to the facts of the prisoner’s case.” Id.
`
`(internal quotations and citation omitted). The Supreme Court has explained that
`
`the exceptions based on “clearly established” law refer only to “the holdings, as
`
`opposed to the dicta, of th[e] Court’s decisions as of the time of the relevant state-
`
`court decision.” (Terry) Williams v. Taylor, 529 U.S. 362, 412 (2000) (“Terry
`
`Williams”). Circuit precedent may not clearly establish federal law for purposes of
`
`§ 2254(d), but we may “look to circuit precedent to ascertain whether it has already
`
`held that the particular point in issue is clearly established by Supreme Court
`
`precedent.” Marshall v. Rodgers, 569 U.S. 58, 64 (2013).
`
`With respect to § 2254(d)(2) claims, “a state-court factual determination is
`
`not unreasonable merely because the federal habeas court would have reached a
`
`different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301
`
`(2010). If “‘[r]easonable minds reviewing the record might disagree’ about the
`
`finding in question, ‘on habeas review that does not suffice to supersede the trial
`
`16
`
`

`

`court’s . . . determination.’” Id. (quoting Rice v. Collins, 546 U.S. 333, 341–42
`
`(2006)).
`
`If a petitioner can overcome the § 2254(d) bar with respect to the claims the
`
`state court did address, he must also demonstrate that he is entitled to relief without
`
`the deference required by AEDPA. See Panetti v. Quarterman, 551 U.S. 930,
`
`953–54 (2007).
`
`Where the state court did not reach a particular issue, § 2254(d) does not
`
`apply, and we review the issue de novo. See Rompilla v. Beard, 545 U.S. 374, 390
`
`(2005); see also Weeden v. Johnson, 854 F.3d 1063, 1071 (9th Cir. 2017)
`
`(“Because the [state court] did not reach the issue of prejudice, we address the
`
`issue de novo.”).
`
`Pursuant to Pinholster, our § 2254(d) analysis is limited to the facts in the
`
`state court record. 563 U.S. at 185. However, in narrow circumstances, when we
`
`review a claim de novo, and when a petitioner satisfied the standard for an
`
`evidentiary hearing in federal district court pursuant to § 2254(e)(2) by exercising
`
`diligence in pursuing his claims in state court, we may consider the evidence
`
`developed in federal court. See id.; see also id. at 212–13 (Sotomayor, J.,
`
`dissenting); see also Schriro v. Landrigan, 550 U.S. 465, 473 n.1 (2007).
`
`17
`
`

`

`III
`
`In Claims 1 and 2, Jones alleges that his counsel provided IAC at sentencing.
`
`To prove a constitutional violation for IAC, Jones must show (1) “that counsel’s
`
`performance was deficient,” and (2) “that the deficient performance prejudiced the
`
`defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel’s
`
`performance is deficient if, considering all the circumstances, it “fell below an
`
`objective standard of reasonableness . . . under prevailing professional norms.” Id.
`
`at 688. Under this objective approach, we are required “to affirmatively entertain”
`
`the range of possible reasons counsel might have proceeded as he or she did.
`
`Pinholster, 563 U.S. at 196.
`
`To establish prejudice under