FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
` No. 19-99011
`
`D.C. No.
`1:07-cv-01466-
`LJO-SAB
`
`OPINION
`
`Petitioner-Appellant,
`
`Respondent-Appellee.
`
`
`
`
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`
`
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`
`
`
`
`
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`STEVEN CATLIN,
`
`
`
` v.
`
`
`RONALD BROOMFIELD, Warden,
`San Quentin State Prison,
`
`
`
`
`Appeal from the United States District Court
`for the Eastern District of California
`Lawrence J. O’Neill, District Judge, Presiding
`
`Argued and Submitted September 26, 2024
`San Francisco, California
`
`Filed December 24, 2024
`
`Before: MILAN D. SMITH, JR., RYAN D. NELSON, and
`PATRICK J. BUMATAY, Circuit Judges.
`
`Opinion by Judge Milan D. Smith, Jr.
`
`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
` No. 19-99011
`
`D.C. No.
`1:07-cv-01466-
`LJO-SAB
`
`OPINION
`
`Petitioner-Appellant,
`
`Respondent-Appellee.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`STEVEN CATLIN,
`
`
`
` v.
`
`
`RONALD BROOMFIELD, Warden,
`San Quentin State Prison,
`
`
`
`
`Appeal from the United States District Court
`for the Eastern District of California
`Lawrence J. O’Neill, District Judge, Presiding
`
`Argued and Submitted September 26, 2024
`San Francisco, California
`
`Filed December 24, 2024
`
`Before: MILAN D. SMITH, JR., RYAN D. NELSON, and
`PATRICK J. BUMATAY, Circuit Judges.
`
`Opinion by Judge Milan D. Smith, Jr.
`
`
`
`
`
`
`
`
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`
`
`2
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`CATLIN V. BROOMFIELD
`
`SUMMARY*
`
`Habeas Corpus / Death Penalty
`
`The panel affirmed the district court’s denial of
`California state prisoner Steven Catlin’s 28 U.S.C. § 2254
`habeas corpus petition challenging his 1990 conviction for
`murdering his fourth wife and his adoptive mother, as well
`as his death sentence.
`The panel concluded that the standard of review set forth
`in the Antiterrorism and Effective Death Penalty Act applies
`to Catlin’s claims because they were adjudicated on the
`merits by the California Supreme Court (CSC). That is true
`even though the CSC rejected some claims in Catlin’s state
`habeas petition as procedurally barred because they had
`already been resolved in Catlin’s first state habeas petition.
`The panel held: (1) the CSC acted reasonably in
`rejecting Catlin’s claims of error arising from the state trial
`judge’s ex parte discussion with a juror; (2) the CSC acted
`reasonably in concluding that there was no ineffective
`assistance of counsel at the guilt phase of Catlin’s trial; and
`(3) the CSC acted reasonably in concluding that there was
`no ineffective assistance of counsel at the penalty phase of
`Catlin’s trial.
`The panel declined to issue a certificate of appealability
`as to Catlin’s uncertified claim that the state violated his due
`process rights by withholding exculpatory evidence and
`presenting false evidence.
`
`
`
`* This summary constitutes no part of the opinion of the court. It has
`been prepared by court staff for the convenience of the reader.
`
`
`
`
`
`CATLIN V. BROOMFIELD
`
`
`
`3
`
`COUNSEL
`
`Saor E. Stetler (argued), Law Offices of Saor E. Stetler, Mill
`Valley, California; Richard G. Novak, Law Offices of
`Richard G. Novak, Berkeley, California; for Petitioner-
`Appellant.
`Kenneth N. Sokoler (argued) and Tami K. Krenzin,
`Supervising Deputy Attorneys General; Sean M. McCoy and
`Ross K. Naughton, Deputy Attorneys General; James W.
`Bilderback II, Senior Assistant Attorney General; Rob
`Bonta, Attorney General of California; Office of the
`California Attorney General, Sacramento, California; for
`Respondent-Appellee.
`
`
`
`OPINION
`
`
`M. SMITH, Circuit Judge:
`
`
`California state prisoner Steven Catlin appeals the
`district court’s denial of his 28 U.S.C. § 2254 habeas corpus
`petition. In two separate trials, Catlin was convicted of
`murdering three family members with paraquat, a poisonous
`agricultural herbicide. The § 2254 petition in this case
`challenges Catlin’s 1990 conviction for murdering his fourth
`wife, Joyce Catlin, and his adoptive mother, Martha Catlin,
`as well as his death sentence.
`We affirm the district court’s dismissal of the petition.
`Like the district court, we conclude that (1) the California
`Supreme Court (CSC) acted reasonably in rejecting Catlin’s
`claims of error arising from the state trial judge’s ex parte
`discussion with a juror; (2) the CSC acted reasonably in
`
`
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`4
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`CATLIN V. BROOMFIELD
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`concluding that there was no ineffective assistance of
`counsel at the guilt phase of Catlin’s trial; and (3) the CSC
`acted reasonably in concluding that there was no ineffective
`assistance of counsel at the penalty phase of Catlin’s trial.
`We also decline to issue a certificate of appealability as to
`Catlin’s uncertified claim that the State violated his due
`process rights under Brady v. Maryland, 373 U.S. 83 (1963),
`and Napue v. Illinois, 360 U.S. 264 (1959), by withholding
`exculpatory evidence and presenting false evidence.
`FACTUAL AND PROCEDURAL BACKGROUND
`I. Factual History of Catlin’s Crimes1
`Steven Catlin has been convicted of three murders: the
`1976 murder of his fourth wife, Joyce Catlin; the 1984
`murder of his adoptive mother, Martha Catlin; and the 1984
`murder of his fifth wife, Glenna Kaye Catlin. The habeas
`petition in this case relates to Catlin’s convictions for the
`murders of Joyce and Martha,2 and the death sentence
`handed down for the murder of Martha. Catlin was
`separately
`tried, convicted, and
`sentenced
`to
`life
`imprisonment for the death of Glenna, and neither his
`conviction nor his sentence for that crime are at issue here.
`However, the facts underlying Catlin’s murder of Glenna are
`
`
`1 The following factual history is drawn from the CSC’s opinion in
`People v. Catlin, 26 Cal. 4th 81 (2001), as well as “the record before us,”
`Fauber v. Davis, 43 F.4th 987, 992 (9th Cir. 2022). We presume that the
`CSC’s findings are correct unless those findings are rebutted by clear
`and convincing evidence. See 28 U.S.C. § 2254(e)(1); see also Atwood
`v. Ryan, 870 F.3d 1033, 1039 (9th Cir. 2017).
`2 Because Catlin’s wives and his mother share the same surname as
`Catlin, we primarily refer to them by their first names in this opinion.
`
`
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`CATLIN V. BROOMFIELD
`
`
`
`5
`
`relevant because they were presented to the jury at the guilt
`phase of the trial at issue.3
`A. The Murder of Joyce Catlin
`In 1973, Catlin married Joyce, his fourth wife.
`Throughout their marriage, Catlin engaged in extramarital
`affairs, which led to arguments between Catlin and Joyce.
`In April 1976, Joyce developed flu-like symptoms and
`was admitted to a hospital in Bakersfield, eventually being
`placed in the intensive care unit. Joyce complained of back
`pain, vomiting, and a sore throat. Doctors, including a lung
`specialist, determined that her lungs were affected, and they
`treated her for a possible viral or bacterial infection with no
`success. Eventually, Joyce’s lungs stopped providing
`sufficient oxygen for her body to function, and she required
`mechanical ventilation. On May 6, 1976—nineteen days
`after her admission to the hospital—Joyce’s lungs failed, and
`she died.
`The pathologist who performed the autopsy observed
`that Joyce’s lungs were extremely heavy and fibrotic, and he
`found no indication of viral or bacterial infection that could
`have caused her death. Joyce’s lung specialist believed that
`the cause of death was pulmonary fibrosis—where the lungs
`develop massive scarring and cannot function. He could not
`identify any natural cause for this condition.
`Although it was not listed on Joyce’s death certificate,
`several physicians suspected that she had been fatally
`poisoned with paraquat, a highly toxic herbicide used for
`controlling weeds. According to a clinical toxicologist who
`
`
`3 However, the jury was not informed that Catlin had been convicted for
`the murder of Glenna until the penalty phase.
`
`
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`6
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`CATLIN V. BROOMFIELD
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`testified at Catlin’s trial, when paraquat is ingested, the
`victim usually experiences a burning sensation in the mouth,
`followed by nausea, vomiting, and diarrhea. About a week
`after ingestion, paraquat begins to attack the lungs and the
`lungs develop fibrotic scarring.
`Multiple experts testified at trial that they believed
`Joyce’s death was caused by paraquat poisoning. Joyce’s
`lung specialist believed that Joyce was killed by paraquat
`poisoning, in part based on Joyce’s course of symptoms, the
`post-mortem appearance of her lungs, and the lack of any
`natural agent that could have caused her death. A different
`expert in lung pathology concluded that fibrosis had almost
`destroyed Joyce’s lung tissue, that the fibrosis had been
`caused by a chemical, and that the only chemical that could
`produce such fibrotic scarring was paraquat. The lung
`pathologist noted that a colleague opined that Joyce’s lung
`tissue constituted a “perfect example of paraquat poisoning.”
`The clinical toxicologist testified that Joyce’s course of
`symptoms was consistent with paraquat poisoning. In
`addition, the Chief Medical Examiner of the City and County
`of San Francisco also testified that Joyce had died of
`paraquat poisoning.
`At the time of Joyce’s death, there were no toxicological
`tests that could identify the presence of paraquat after more
`than seventy-two hours had passed from administration.
`Moreover, the fact that Joyce’s lung tissues were preserved
`in formalin made it impossible to conduct later testing.
`Although access to paraquat was controlled under state
`law at the time of Joyce’s death, Catlin had access to the
`poison in 1976 and 1977 when he worked as a mechanic for
`Superior Farming, an agricultural company. Multiple
`witnesses recalled Catlin’s familiarity with paraquat and the
`
`
`
`
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`CATLIN V. BROOMFIELD
`
`
`
`7
`
`peril that it posed. The year before Joyce’s death, Catlin had
`warned Joyce’s son about the dangers of paraquat and
`warned him not to enter Catlin’s garage because it contained
`dangerous agricultural poisons. Additionally, some years
`earlier, Catlin had shown his second wife’s father a vial of
`poison that Catlin said would kill anything or anybody, one
`he thought would be an ideal tool for a “perfect murder”
`because it was undetectable and had no antidote.
`At the time of her death, Joyce participated in the Credit
`Life Program at the Kern Federal Credit Union, and the
`proceeds of that program were used to pay off a debt on an
`automobile owned by the couple. Additionally, according to
`the CSC, Joyce had an insurance policy paying up to $2,000
`and a $5,000 insurance policy, the benefits of which were
`paid to Catlin.
`B. The Murder of Martha Catlin
`Martha was Catlin’s adoptive mother, and Catlin
`regularly visited her. Catlin visited his mother on December
`2, 1984. On December 6, Martha phoned a friend to request
`assistance because she was seriously ill. Her friend observed
`that Martha appeared very sick and had swollen purple lips
`as well as dark circles under her eyes. When Martha arrived
`at the doctor’s office, her tongue and throat were reddish-
`purple, and she had a fever. She died fewer than two days
`later at the age of seventy-nine.
`Toxicological testing revealed that Martha had ingested
`a significant amount of paraquat. Multiple experts testified
`that paraquat poisoning had killed Martha, even though she
`did not have the same severe fibrosis that Joyce exhibited.
`Some experts opined that this was because Martha had died
`early in the course of paraquat poisoning due to her frailty.
`
`
`
`8
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`CATLIN V. BROOMFIELD
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`At Catlin’s trial for the murders of Joyce and Martha, the
`State presented evidence that Catlin had grown tired of
`caring for Martha (as well as traveling from Fresno to
`Bakersfield to visit her), and that he had made statements
`indicating that he wished she would “hurry up and die.”
`Catlin was also concerned that Martha was planning to alter
`her will to make the African Violet Society, rather than him,
`her primary beneficiary. At the time of Martha’s death,
`Catlin was still the sole beneficiary of her will.
`There were other possible sources of tension between
`Martha and Catlin, including Catlin’s many marriages and
`(according to Catlin’s third wife Edith Ballew) Martha’s
`repeated threats to leave Catlin out of her will. Furthermore,
`Catlin had retained possession of money that he had
`withdrawn from his mother’s account even though that
`money was intended to be used as a down payment on a new
`home for Martha. The parties presented evidence that, when
`Catlin was a child, Martha made him dress in girls’ clothing
`and made him feel that Martha wished she had adopted a girl
`instead.
`C. The Murder of Glenna Kaye Catlin
`Catlin had already been tried, convicted, and sentenced
`to life imprisonment for the murder of his fifth wife, Glenna
`Kaye Catlin, by the time of trial in this case. But the facts
`underlying Glenna’s death remain relevant because they
`were reported to the jury at the guilt phase and the jury
`learned of his conviction at the penalty phase.
`The marriage between Catlin and Glenna was rocky:
`Catlin viewed it as a marriage of convenience and had been
`unfaithful, which made Glenna jealous. On February 16,
`1984, Catlin and Glenna had a public argument, and Catlin
`was described as “smirk[ing]” at Glenna.
`
`
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`
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`CATLIN V. BROOMFIELD
`
`
`
`9
`
`A few days after the argument, Glenna became ill. After
`an illness spanning several weeks, Glenna died on March 14.
`Subsequent toxicological testing showed that Glenna had
`died of paraquat poisoning. Some years before Glenna’s
`death, Catlin had warned Glenna’s half-brother about the
`dangers of paraquat, including that it could damage the
`lungs.
`After Glenna’s death, Catlin received a substantial life
`insurance payout of over $55,000. He also exhibited high
`spirits after Glenna’s death even though he had displayed
`grief at her funeral.
`D. Discovery of the Paraquat Bottle
`After Catlin was arrested, his former father-in-law,
`Glenn Emery (Glenna’s stepfather), searched his automotive
`business at the urging of law enforcement. Catlin had access
`to the business because it was located on property where he
`had lived and worked. Law enforcement had not previously
`searched that area based on Emery’s representation that he
`was familiar with the premises and would have found
`paraquat (or any other evidence) if there had been anything
`to find. But in a later conversation, law enforcement
`officials urged Emery to search the shared premises.
`In the subsequent search, Emery found a bottle of
`paraquat in a cabinet. The bottle had been filled or
`manufactured in April 1977 (after the death of Joyce but
`before the deaths of Martha and Glenna). Catlin’s
`fingerprint was on the cap of the paraquat bottle.
`Alfred Bettencourt, Catlin’s auto shop partner, testified
`that he had seen that bottle in a box when he and Catlin were
`moving Catlin’s auto shop from the premises shared with
`Emery to a different location, about a month before Glenna’s
`
`
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`10
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`CATLIN V. BROOMFIELD
`
`death. Bettencourt asked Catlin what to do with the box
`containing the bottle, and Catlin told him to put it back where
`he found it.
`E. The Jailhouse Informant
`While Catlin was being held in the Kern County Jail after
`being arrested (likely for the murder of Joyce), he met an
`inmate named Conward Hardin. Hardin, a jailhouse
`informant, later related to law enforcement that Catlin
`solicited his assistance in intimidating Edith Ballew, Catlin’s
`third wife, who had been a driving force in the investigation
`and prosecution of Catlin. The goal was to persuade Edith
`not to testify, and Catlin suggested that Hardin could wear a
`mask and use a weapon to “persuade” Edith. Hardin also
`reported that, during a conversation with Hardin about their
`difficulties with women, Catlin had stated, “I killed the
`bitches.”
` But Hardin did not recall much of that
`conversation.
`II. Procedural History
`A. Catlin’s 1990 Kern Trial
`There was suspicion of foul play following Joyce’s death
`in 1976, but her murder was not prosecuted until some years
`later—following the 1984 deaths of Glenna and Martha.
`This delay was due to several factors: the limits of laboratory
`testing, the fact that her tissues were preserved in a manner
`that precluded paraquat testing, and the early caution of
`medical and pathological experts concerning whether they
`could confidently offer an opinion on the cause of Joyce’s
`death. Ultimately, Catlin was charged with the deaths of
`Joyce and Martha in an information filed in Kern County on
`December 23, 1985. The information charged several
`special circumstances for the death of Martha, including that
`
`
`
`
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`CATLIN V. BROOMFIELD
`
`
`
`11
`
`Martha had been murdered for financial gain, the murder
`was committed with poison, and the defendant had
`committed more than one murder.
`Catlin’s trial for the deaths of Joyce and Martha (the
`Kern Trial) began on April 23, 1990. Catlin was represented
`in the Kern Trial by attorneys Dominic Eyherabide and
`Michael Dellostritto.4 During the guilt phase of the trial, the
`jury heard testimony from a variety of witnesses, including
`members of law enforcement, doctors and other medical
`personnel, members of Glenna’s family, acquaintances of
`Catlin, Catlin himself, and—particularly important to
`Catlin’s habeas petition—Hardin, the jailhouse informant.
`Catlin’s defense was that he did not poison anyone and
`never knowingly possessed paraquat. He also contended
`that, based on his experts’ testimony regarding the timeline
`of paraquat poisoning, it was impossible for him to have
`poisoned Martha or Glenna. Catlin, who testified in his own
`defense, also tried to paint his relationship with his adoptive
`mother in a positive light, contending that Martha never
`threatened to cut him out of her will. In the same vein, he
`denied that he ever told an acquaintance that his mother
`wished she had adopted a girl or that his mother had dressed
`him in girl’s clothing during his childhood. Catlin also
`presented evidence
`that his business ventures were
`succeeding, so he lacked a financial motive for the crimes.
`On June 1, 1990, the jury found Catlin guilty of two
`counts of first-degree murder. As to Count 2 (which related
`to the murder of Martha), the jury found true the special
`circumstances that Catlin murdered Martha for financial
`
`4 Eyherabide’s surname is spelled differently at several points in the
`record. We use the spelling that appears most frequently.
`
`
`
`12
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`CATLIN V. BROOMFIELD
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`gain, that he did so by the administration of poison, and that
`Catlin had committed multiple murders. See Cal. Penal
`Code § 190.2(a)(1), (3), (19) (West 1989).
`The penalty phase took place a few days later. As part
`of the aggravation evidence introduced, Catlin stipulated that
`he had previously been convicted of the first-degree murder
`of Glenna. See Cal. Penal Code § 190.2(a)(2) (West 1989).
`The State also presented evidence from Catlin’s first wife,
`who testified that Catlin had physically assaulted and choked
`her.
`Catlin’s defense counsel presented mitigation evidence.
`Specifically, defense counsel presented the testimony of
`several witnesses: members of a family that Catlin had
`guided and mentored; testimony from a woman whose child
`was saved by Catlin; a psychologist’s opinion about Catlin’s
`good behavior while incarcerated; and prison officials who
`testified as
`to Catlin’s good behavior and valuable
`contributions to the prison workforce.
`The jury deliberated for less than two-and-a-half hours
`before returning a sentence of death for Martha’s murder.
`The state trial court determined that the weight of the
`evidence supported the jury’s findings and verdicts and
`observed that the aggravating circumstances far outweighed
`the mitigating circumstances. It accordingly ordered that
`“the penalty of death is to be inflicted upon the defendant.”
`On automatic appeal, the CSC affirmed Catlin’s
`conviction and sentence. People v. Catlin, 26 Cal. 4th 81
`(2001). The CSC later denied Catlin’s petition for rehearing.
`The United States Supreme Court denied Catlin’s petition
`for a writ of certiorari.
`
`
`
`
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`CATLIN V. BROOMFIELD
`
`
`
`13
`
`B. Catlin’s Collateral Challenges
`Catlin filed his first state habeas petition in 2000. This
`petition included most of the claims that are now at issue in
`this appeal. The CSC summarily denied the petition in 2007.
`It denied most of Catlin’s claims on the merits, but also
`rejected some of the claims on procedural grounds.
`In 2008, Catlin filed the operative federal habeas petition
`pursuant to 28 U.S.C. § 2254. The petition raised over sixty
`different claims, challenging various aspects of the guilt and
`penalty phases, as well as other aspects of the proceedings
`against Catlin. As relevant here, Claims 10 and 11 in the
`petition alleged constitutional error arising from an ex parte
`conversation between the trial judge and a juror. Claim 23
`alleged that the State had violated its constitutional
`obligations pursuant to Brady and Napue by failing to
`disclose impeachment information relating to Hardin. Claim
`23 further alleged that the State had presented false
`testimony regarding the benefits received by Hardin in
`exchange for his testimony. Claim 26(A) alleged ineffective
`assistance of counsel at the guilt phase due to defense
`counsel’s failure to properly impeach Hardin. Claim 35,
`including all subclaims, alleged ineffective assistance of
`counsel at the penalty phase. Subclaim 35(F) was a claim of
`cumulative error from the purported ineffective assistance at
`the penalty phase.
`After Catlin filed his § 2254 petition, the district court
`ordered the federal action held in abeyance pursuant to
`Rhines v. Weber, 544 U.S. 269 (2005), while Catlin
`exhausted some of his claims in state court. Catlin then filed
`his second state habeas petition, which raised many of the
`same claims as his first state habeas petition, as well as some
`new ones. In 2013, the CSC summarily denied the petition.
`
`
`
`14
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`CATLIN V. BROOMFIELD
`
`It rejected some of Catlin’s challenges on the merits,
`including subclaim 35(F). It rejected other claims—
`including Claims 10, 11, 23, 26, and 35(A)–(C)—as
`procedurally barred for a variety of reasons, including that
`they were untimely or had been raised in Catlin’s first state
`habeas petition.5
`Catlin returned to federal court, where he filed a motion
`for discovery and evidentiary development. The State filed
`its answer to Catlin’s § 2254 petition, and the motion and
`petition were fully briefed.
`On December 17, 2019, the district court denied Catlin’s
`petition and his motion for discovery and evidentiary
`development. The district court granted a certificate of
`appealability (COA) on Claims 10, 11, 26(A), 35(A), 35(B),
`35(C), and 35(F). Catlin timely filed a notice of appeal.
`
`
`5 Before the district court, the State asserted that the CSC’s conclusion
`that many of Catlin’s claims were procedurally barred for various
`reasons, including untimeliness, foreclosed federal habeas relief because
`those procedural bars constituted “adequate and independent grounds”
`to bar review. The State is correct that, as a general matter, federal
`review of procedurally defaulted claims is barred unless the habeas
`petitioner can show cause for the default and actual prejudice (or that a
`failure to consider the claims would result in a fundamental miscarriage
`of justice). See Rodney v. Filson, 916 F.3d 1254, 1259 (9th Cir. 2019).
`But the State has not invoked any procedural bars on appeal, so it has
`forfeited any reliance on them. See McDermott v. Johnson, 85 F.4th 898,
`907 (9th Cir. 2023), cert. denied sub nom. McDermott v. Cruz, --- S. Ct.
`----, 2024 WL 4655012 (Nov. 4, 2024) (mem.); see also Clark v.
`Chappell, 936 F.3d 944, 982 (9th Cir. 2019). We accordingly decline to
`reach the question of whether the procedural bars applied by the CSC
`foreclose any of the habeas relief sought by Catlin.
`
`
`
`
`
`CATLIN V. BROOMFIELD
`
`
`
`15
`
`JURISDICTION AND STANDARD OF REVIEW
`I. Jurisdiction
`The Antiterrorism and Effective Death Penalty Act of
`1996 (AEDPA), which indisputably applies to Catlin’s
`habeas petition,6 circumscribes our ability to hear appeals in
`habeas corpus proceedings. See Gonzalez v. Thaler, 565
`U.S. 134, 140 (2012); Smith v. Mahoney, 611 F.3d 978, 993
`(9th Cir. 2010). Specifically, “before a federal court may
`entertain an appeal from a ‘final order in a habeas corpus
`proceeding,’ a petitioner ‘must first seek and obtain’” a
`COA. Rose v. Guyer, 961 F.3d 1238, 1243 (9th Cir. 2020)
`(citations omitted) (first quoting 28 U.S.C. § 2253(c)(1)(A);
`then quoting Miller-El v. Cockrell, 537 U.S. 322, 335–36
`(2003)). “A COA is a ‘jurisdictional prerequisite,’ which
`serves a ‘gatekeeping function’ by ‘screen[ing] out issues
`unworthy of judicial time and attention and ensur[ing] that
`frivolous claims are not assigned to merits panels.’” Id.
`(alterations in original) (citations omitted) (first quoting
`Miller-El, 537 U.S. at 336; then quoting Thaler, 565 U.S. at
`145).
`Here, the district court granted a COA on Claims 10, 11,
`26(A), and subclaims A, B, C, and F of Claim 35. We
`accordingly have jurisdiction over these claims pursuant to
`28 U.S.C. § 1291 and 2253. See, e.g., Hart v. Broomfield,
`97 F.4th 644, 648 (9th Cir. 2024).
`However, Catlin’s appellate briefing also includes
`arguments related to Claim 23—a claim on which the district
`court did not issue a COA. We accordingly lack jurisdiction
`
`6 Catlin’s federal habeas petition was filed in 2008, well after AEDPA’s
`April 24, 1996, effective date. Thus, AEDPA applies to his petition. See
`Clark v. Broomfield, 83 F.4th 1141, 1147 (9th Cir. 2023).
`
`
`
`16
`
`CATLIN V. BROOMFIELD
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`to rule in the first instance on Catlin’s arguments related to
`Claim 23. See Payton v. Davis, 906 F.3d 812, 818 (9th Cir.
`2018). But “[w]hen a brief includes uncertified issues, we
`may treat it as a request to expand the scope of the certificate
`of appealability.” Robertson v. Pichon, 849 F.3d 1173, 1187
`(9th Cir. 2017) (quoting Delgadillo v. Woodford, 527 F.3d
`919, 930 (9th Cir. 2008)); see also Ninth Circuit Rule 22-
`1(e).
`“Under AEDPA, a certificate of appealability . . . cannot
`be issued or expanded unless ‘the applicant has made a
`substantial showing of the denial of a constitutional right.’”
`Robertson, 849 F.3d at 1187
`(quoting 28 U.S.C.
`§ 2253(c)(2)). “‘We look to the District Court’s application
`of AEDPA to [the petitioner’s] constitutional claims,’ and
`[the petitioner] ‘must demonstrate that reasonable jurists
`would
`find
`the district court’s assessment of
`the
`constitutional claims debatable or wrong’ in light of
`AEDPA.” Id. (citations omitted) (quoting Miller-El, 537
`U.S. at 336, 338).
`II. Standard of Review
`“We review a district court’s denial of a 28 U.S.C.
`§ 2254 petition de novo.” Fauber v. Davis, 43 F.4th 987,
`996 (9th Cir. 2022) (quoting Bolin v. Davis, 13 F.4th 797,
`804 (9th Cir. 2021)), cert. denied, 143 S. Ct. 2585 (2023)
`(mem.). But because Catlin’s petition is subject to AEDPA,
`we must review Catlin’s claims under the deferential
`standard set out by that statute. See id.
`“Under AEDPA, we must defer to the state court’s
`decision on any claim adjudicated on the merits unless the
`decision was ‘contrary to, or involved an unreasonable
`application’ of ‘clearly established Federal law’ or was
`‘based on an unreasonable determination of the facts in light
`
`
`
`
`
`CATLIN V. BROOMFIELD
`
`
`
`17
`
`of the evidence presented.’” Avena v. Chappell, 932 F.3d
`1237, 1247 (9th Cir. 2019) (quoting 28 U.S.C. § 2254(d)).
`This deferential standard “reflects the view that habeas
`corpus is a ‘guard against extreme malfunctions in the state
`criminal justice systems,’ not a substitute for ordinary error
`correction through appeal.” Harrington v. Richter, 562 U.S.
`86, 102–03 (2011) (quoting Jackson v. Virginia, 443 U.S.
`307, 332 n.5 (1979) (Stevens, J., concurring in the
`judgment)).
`Section 2254(d)(1) permits habeas relief when the state
`court’s decision was contrary
`to, or
`involved an
`unreasonable application of, clearly established federal law.
`See 28 U.S.C. § 2254(d)(1); see also Fauber, 43 F.4th at
`996. “Under § 2254(d)(1), ‘clearly established’ ‘refers to the
`holdings, as opposed to the dicta, of [the Supreme] Court’s
`decisions as of the time of the relevant state-court decision.’”
`Marks v. Davis, 106 F.4th 941, 949 (9th Cir. 2024)
`(alteration in original) (quoting Lockyer v. Andrade, 538
`U.S. 63, 71 (2003)). “A state court’s decision is ‘contrary
`to’ clearly established federal law ‘if the state court arrives
`at a conclusion opposite to that reached by [the Supreme]
`Court on a question of law or if the state court decides a case
`differently than [the Supreme] Court has on a set of
`materially indistinguishable facts.’” Id. (alterations in
`original) (quoting Williams v. Taylor, 529 U.S. 362, 413
`(2000)). “A state court’s decision involves ‘an unreasonable
`application’ of clearly established federal law ‘if the state
`court identifies the correct governing legal principle from
`[the Supreme] Court’s decision but unreasonably applies
`that principle to the facts of the prisoner’s case.’” Id.
`(alteration in original) (quoting Williams, 529 U.S. at 413).
`Under the unreasonable-application prong, “[t]he state
`court’s application of federal law must stand unless it was
`
`
`
`18
`
`CATLIN V. BROOMFIELD
`
`‘objectively unreasonable.’” Fauber, 43 F.4th at 996–97
`(quoting Bell v. Cone, 535 U.S. 685, 698–99 (2002)). This
`standard is intentionally “challenging . . . to meet.” Bolin,
`13 F.4th at 805. To satisfy this standard, a petitioner “must
`show far more than that the state court’s decision was merely
`wrong or even clear error.” Fauber, 43 F.4th at 996 (quoting
`Bolin, 13 F.4th at 804). “Instead, ‘[t]he prisoner must show
`that the state court’s decision is so obviously wrong that its
`error
`lies “beyond any possibility
`for
`fairminded
`disagreement.”’” Bolin, 13 F.4th at 805 (alteration in
`original) (quoting Shinn v. Kayer, 592 U.S. 111, 118 (2020)
`(per curiam)).
`Notably, this standard applies even where the state’s
`highest court summarily denies the petitioner’s state habeas
`claims on the merits. See Cullen v. Pinholster, 563 U.S. 170,
`187 (2011); Fauber, 43 F.4th at 999. Thus, even when the
`“state court’s decision is unaccompanied by an explanation,
`the habeas petitioner’s burden still must be met by showing
`there was no reasonable basis for the state court to deny
`relief.” Fauber, 43 F.4th at 999 (quoting Richter, 562 U.S.
`at 98). In these situations, our inquiry is two-fold: “what
`arguments or theories . . . could have supported the state
`court’s decision,” and
`then “whether
`it
`is possible
`fairminded jurists could disagree that those arguments or
`theories are inconsistent with the holding in a prior decision
`of [the Supreme] Court.” Id. (omission and alteration in
`original) (quoting Richter, 562 U.S. at 102).
`We conclude that the AEDPA standard of review applies
`to Catlin’s claims because they were adjudicated on the
`merits by the CSC.7 That is true even though the CSC
`
`7 There is some complexity associated with whether subclaim 35(F),
`which asserts a claim of cumulative error related to ineffective assistance
`
`
`
`
`
`CATLIN V. BROOMFIELD
`
`
`
`19
`
`rejected some claims—including Claims 10, 11, 23, 26(A),
`and 35(A) through (C)—in Catlin’s second state habeas
`petition as procedurally barred because they had already
`been resolved in Catlin’s first state habeas petition. See
`Cone v. Bell, 556 U.S. 449, 466 (2009) (“When a state court
`declines to review the merits of a petitioner’s claim on the
`ground that it has done so already, it creates no bar to federal
`habeas review.”); see also Guillory v. Allen, 38 F.4th 849,
`856 (9th Cir. 2022).
`We reject Catlin’s argument that AEDPA is inapplicable
`because the summary denial of his claims without the
`opportunity for evidentiary development indicates that there
`was no adjudication on the merits. As a starting point, this
`argument was not raised with any clarity until Catlin’s reply
`brief, which is reason enough for us to decline to consider it.
`See Iraheta-Martinez v. Garland, 12 F.4th 942, 959 (9th Cir.
`2021) (“[B]y failing to develop the argument in his opening
`brief, Iraheta forfeited it.”); Rowland v. Chappell, 876 F.3d
`
`
`of counsel at the penalty phase, was adjudicated on the merits in response
`to Catlin’s first state habeas petition or his second. The CSC’s 2013
`summary denial of Catlin’s second state habeas petition indicated that it
`was denying subclaim 35(F) on the merits. But claims that were
`substantively the same as subclaims 35(A), 35(B), and 35(C) were
`denied on the merits in the first habeas petition. If subclaim 35(F) was
`“sufficiently related” to or “intertwined” with these claims, it would have
`been considered raised in the first habeas petition. See Wooten v.
`Kirkland, 540 F.3d 1019, 1025 (9th Cir. 2008). This appears to be the
`position that Catlin takes on appeal. But we need not decide which of
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