John Espiredion VALERIO, Petitioner-Appellant, v. Jackie CRAWFORD, Director of the Department of Prisons; E.K. McDaniel, Warden, Respondents-Appellees, 306 F.3d 742

Opinion by Judge WILLIAM A. FLETCHER; Concurrence by Judge FISHER; Dissent by Judge RYMER. OPINION WILLIAM A. FLETCHER, Circuit Judge. In this capital case, petitioner John Es-piredion'Valerio appeals the district court’s dismissal of his petition for writ of habeas corpus under 28 U.S.C. § 2254. We decide as follows: First, we reverse the district court’s dismissal of Valerio’s habeas petition as to the penalty phase of his trial.

During the penalty phase, the jury was instructed to determine whether the murder with which Valerio was charged “involved torture, depravity of mind, or mutilation of the victim.” The jury concluded that this aggravating circumstance was present and, based in part on this conclusion, sentenced Valerio to death. The jury instruction was clearly unconstitutional under Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). On appeal from a denial of state post-conviction collateral relief, the Nevada Supreme Court sought to cure the error pursuant to the procedure endorsed in Walton v.

Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), overruled in part by Ring v. Arizona, — U.S. -, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), by applying a narrowing construction of the instruction to a de novo finding of the facts. We hold that the Walton procedure is not available when a jury rather than the trial judge has found the facts and determined whether there were aggravating and mitigating circumstances. We also hold that, even if the Walton procedure were available, the Nevada Supreme Court failed to provide “close appellate scrutiny” and therefore failed to cure the instructional error.

Evaluating the effect of the error under Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 358 (1993), we hold the error not harmless. We therefore remand with instructions that, should the district court upon remand deny Valerio’s claims as to the guilt phase of his trial, it shall grant the writ as to the penalty phase and shall provide any appropriate interim relief. Second, we address the effective date of our Circuit Rule 22-1.

The district court granted a certificate of appealability (“COA”) on the issue of the unconstitutional aggravator, but it refused to grant a COA on issues in two groups of additional claims relating to the guilt phase. Valerio sought to expand the COA to encompass the issues in these additional claims by briefing them to us, as expressly permitted under our decision in United States v. Cruz-Mendoza, 147 F.3d 1069, 1074-75 (9th Cir.1998) (Cruz-Mendoza I), amended and superseded in part by United States v. Cruz-Mendoza, 163 F.3d 1149 (9th Cir.1998) (Cruz-Mendoza II).

Our Circuit Rule 22-1 sets forth procedural requirements for appellants seeking to expand a partially-denied COA which Valerio did not, and could not, satisfy. We hold that because Rule 22-1 went into effect after the district court denied the COA as to these other issues, it does not apply .to Valerio’s request for an expanded COA. We therefore hold that Valerio’s. request for an expanded COA on the additional issues briefed is properly before us. Third, we address the first group of additional guilt-phase claims. That group consists of three claims newly added to Valerio’s amended federal habeas petition.

The district court dismissed these claims for abuse of the writ under Farmer v. McDaniel, 98 F.3d 1548 (9th Cir.1996). After the district court’s decision, the Supreme Court reversed Farmer in Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Based on Slack, we grant the expanded COA, reverse the dismissal of these claims, and remand to the district court for appropriate action. Fourth, we address the second group of additional guilt-phase claims. This group consists of claims that the district court declined to decide on the ground that they had been procedurally defaulted in state court.

We hold that the claims were not procedurally defaulted. We grant the expanded COA, reverse the dismissal of these claims, and remand to the district court for appropriate consideration. I. Background In' 1988, a Nevada jury convicted petitioner-appellant Valerio of first degree murder with the use of a deadly weapon for the killing of Karen Sue Blackwell. Valerio had killed Blackwell by stabbing her 45 times.

During the separate penalty proceeding, the jury found two aggravating circumstances: first, that Valerio had a prior violent felony conviction and second, that the murder “involved torture, depravity of mind, or mutilation.” The jury returned a verdict of death. Valerio appealed his conviction, arguing that he was prejudiced by prosecutorial misconduct and by the introduction of certain photographs at trial. The Nevada Supreme Court denied his direct appeal in September 1989. Valerio then filed a petition for post-conviction relief in state court pursuant to Nevada Revised Statute (NRS)

Chapter 177. The petition claimed, inter alia, ineffective assistance of counsel (“IAC”) and unconstitutionality of a penalty phase aggravating circumstance jury instruction requiring a finding of “torture, depravity of mind, or mutilation of the victim.” After conducting an evidentiary hearing, the Nevada district court denied Valerio’s petition in November 1990, rejecting all of his claims.

The Nevada Supreme Court affirmed the denial in January 1992. • Valerio then filed a petition for habeas corpus in federal district court under 28 U.S.C. § 2254, alleging 18 claims for relief, some of which had not been exhausted in state court. Because the petition was “mixed,” containing exhausted and unex-hausted claims, the district court dismissed it under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). In December 1992, Valerio filed a second state petition for post-conviction relief in Nevada district court, this time a petition for habeas corpus under NRS

Chapter 34. This petition alleged 24 claims for relief, including two claims based on ineffective assistance of counsel. The state district court dismissed the entire petition as procedurally barred under NRS 34.810. In April 1996, the Nevada Supreme Court affirmed the dismissal of Valerio’s petition as procedurally barred. See Valerio v. State, 112 Nev. 383, 915 P.2d 874 (Nev.1996). In May 1996, Valerio filed a second petition for habeas corpus in federal district court.

That petition, the focus of the present appeal, asserts the same 24 claims for relief that Valerio had presented to the Nevada state courts in his second state petition. As amended in December 1996, the petition also asserts three additional claims. Two claims assert further factual grounds supporting the claims of IAC. One claim asserts a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The federal district court dismissed most of Valerio’s claims as procedurally defaulted in state court.

The court then rejected the three newly added claims as an abuse of the writ under federal law. Finally, the court entered judgment denying Valerio’s remaining claims on the merits and dismissed his petition on August 20, 1998. Valerio applied for a COA generally on all issues decided against him by the district court.

He specifically applied for a COA on claim 13 (improper closing argument by the prosecutor in the penalty phase), claim 14 (unconstitutionally vague instruction on aggravating circumstance in the penalty phase), and claim 15 (insufficient evidence of torture and mutilation under the aggravating circumstance). On October 15, 1998, the district court granted the COA as to the issues in claims 13, 14, and 15 and denied certification as to all other issues. Valerio appealed the district court’s dismissal on the merits of claims 14 and 15.

He also sought to appeal the uncertified issues of whether the district court properly dismissed his other claims as procedurally defaulted or abusive. In an unpublished memorandum disposition, a three-judge panel of this court affirmed the district court’s dismissal. The panel affirmed the district court’s ruling on the merits of claims 14 and 15, concluding that the Nevada Supreme Court had cured any instructional error by applying a narrowing construction to the aggravating circumstance under Walton, 497 U.S. at 653-54, 110 S.Ct. 3047.

Relying on Ninth Circuit Rule 22-1, the panel refused to consider the other issues Valerio had sought to appeal, through an expanded COA, when he argued in his briefs that his other claims were neither procedurally defaulted nor abusive. We have taken Valerio’s appeal en banc and have vacated the panel’s decision. II. Depravity of Mind Jury Instruction We first address Valerio’s penalty-phase claim that a jury instruction on an aggravating circumstance was unconstitutional. We address this claim even though, as will be seen later in the opinion, we remand several guilt-phase claims for further consideration.

We have previously addressed penalty-phase claims while guilt-phase claims remain to be adjudicated. See Morris v. Woodford, 273 F.3d 826, 828 (9th Cir.2001) (granting writ with respect to death sentence while guilt-phase claims remain to be decided). We recognize that if one of Valerio’s guilt phase claims is sustained (which, of course, is by no means certain), his entire conviction will be set aside, making it unnecessary to decide his penalty-phase claim. However, for two reasons, we believe it is appropriate to address the penalty-phase claim now.

First, the penalty-phase claim is before us and ready to be decided. The district court has decided it and granted a COA, the parties have briefed and argued it, and the claim is as ripe for decision as it will ever be. Second, even if it eventually turns out that Valerio’s conviction is set aside, interim forms of relief short of release from incarceration, such as removal from death row, may be appropriate based on the fact that he will no longer be under sentence of death.

At the conclusion of the penalty phase of Valerio’s trial, the jury was directed to determine whether the murder “involved torture, depravity of mind, or mutilation of the victim.” Valerio argues that the “depravity of mind” portion of the instruction, and therefore the instruction as a whole, were unconstitutionally vague. The district court granted a COA on claim 14, concerning the unconstitutionality of the jury instruction. Valerio argues that the unconstitutionality of the instruction requires that we grant his petition as to the penalty phase of his trial. For the reasons that follow, we agree. A.

Unconstitutionality of the Instruction It is clear that the aggravating-circumstance instruction concerning depravity of mind, in the form in which it was given to the jury, was unconstitutional. The Eighth Amendment requires that jury instructions in the penalty phase of a capital case sufficiently channel the jury’s discretion to permit it to make a principled distinction between the subset of murders for which a death sentence is appropriate and the majority of murders for which it is not. See Wade v. Calderon, 29 F.3d 1312, 1319 (9th Cir.1994).

When a jury is given an aggravating-circumstance instruction that would support the imposition of the death penalty, that instruction “must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983); see also Spaziano v.

Florida, 468 U.S. 447, 460, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984) (“If a State has determined that death should be an available penalty for certain crimes, then it must administer that penalty in a way that can rationally distinguish between those individuals for whom death is an appropriate sanction and those for whom it is not.”). In Godfrey v.

Georgia, the Supreme Court held unconstitutional an aggravating-circumstance instruction that permitted a jury to impose the death penalty if it found that the murder “ ‘was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.’ ” 446 U.S. at 428-29, 100 S.Ct. 1759 (quoting state statute) (emphasis added).

The instruction in Godfrey, unconstrained by a narrowing construction, resulted in “stan-dardless and unchanneled imposition of death sentences in the uncontrolled discretion of a basically uninstructed jury.” Id. at 429, 100 S.Ct. 1759. See also Maynard v. Cartwright, 486 U.S. 356, 363-64, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988) (holding unconstitutionally vague, under the reasoning of Godfrey, an aggravating-circumstances instruction directing jurors to determine whether the murder was “especially heinous, atrocious, and cruel”). Applying Godfrey, we held in Deutscher v.

Whitley, 884 F.2d 1152 (9th Cir.1989), vacated on other grounds sub nom. Angelone v. Deutscher, 500 U.S. 901, 111 S.Ct. 1678, 114 L.Ed.2d 73 (1991), that the “depravity of mind” phrase in the Nevada jury instruction was unconstitutional. We held that the torture and mutilation parts of the instruction were “sufficiently clear and objective to satisfy the requirements of Godfrey,” but held that the depravity of mind part of the instruction was unconstitutionally vague. There is nothing in the definition of depravity of mind that restrains arbitrary imposition of the death penalty.

The depravity instruction in this case ... is no more capable of channeling discretion than the ‘especially heinous, atrocious, or cruel’ instruction rejected in Maynard or the ‘outrageously or wantonly vile, horrible or inhuman’ instruction in Godfrey. Id. at 1162 (citation omitted); see also McKenna v. McDaniel, 65 F.3d 1483, 1489 (9th Cir.1995) (holding unconstitutionally vague a similar Nevada depravity of mind instruction). Our decision in Deutscher was rendered on August 31,1989. The Nevada Supreme Court decided Valerio’s direct appeal from his conviction and sentence six days later, on September 6, 1989.

It said nothing about Godfrey and Deutscher, and nothing about the constitutionality of the instruction. The Nevada Supreme Court responded to Godfrey and Deutscher a year later, in Robins v. State, 106 Nev. 611, 798 P.2d 558 (Nev.1990), by providing a narrowing construction to the depravity of mind aggravating circumstance instruction.

It wrote in Robins: “[W]e construe the instruction and the statute (NRS 200.033(8)) upon which it is based as requiring torture, mutilation or other serious and depraved physical abuse beyond the act of killing itself, as a qualifying requirement to an aggravating circumstance based in part upon depravity of mind.” Id. at 629, 798 P.2d 558 (emphasis added). B. State Court Proceedings Nevada is a “weighing” state. See McKenna, 65 F.3d at 1489. In arriving at a penalty decision in a capital case, a Nevada jury is directed to weigh aggravating against mitigating circumstances.

A Nevada jury may return a verdict of death for a death-eligible defendant “only if one or more aggravating circumstances are found and any mitigating circumstance or circumstances which are found .do not outweigh the aggravating circumstance or circumstances.” NRS 200.030(4)(a); see also NRS 175.554. After the presentation of evidence at the penalty phase of Valerio’s trial, the jury was instructed that it could find three possible aggravating circumstances. The constitutionality of the jury instruction as to two of them is not in question.

The first was that “[t]he murder of Karen Sue Blackwell was committed by a person who was previously convicted of a felony involving the use or threat of violence to the person of another.” The second was that “[t]he murder was committed while the person was engaged in the commission of any robbery.” The jury found the first of these two circumstances present, but not the second. The third aggravating-circumstance instruction directed the • jury to decide whether “[t]he murder of Karen Sue Blackwell by the defendant involved torture, depravity of mind or the mutilation of the victim” (emphasis added).

Neither “torture” nor “mutilation of the victim” was defined in the instructions. “Depravity of mind” was defined as follows: The condition of mind described as depravity of mind is characterized by an inherent deficiency of moral sense and rectitude. It consists of evil, corrupt and perverted intent which is devoid of regard for human dignity and which is indifferent to human life. It is a state of mind outrageously, wantonly vile, horrible or inhuman.

The prosecutor’s argument concerning the third aggravating-circumstance in-structionwas, in its entirety: The next aggravating circumstance which you would be able to find is that the murder, I’m not going to remember the exact wording, included or the person doing — let me get the instruction. I don’t want to be wrong. The murder involved torture, depravity of mind or the mutilation of the victim. Did this killing involve any of those things? Let’s just talk about depravity of mind. We all understand mutilation, disfigurement of the body.

We all understand torture, systematic harming of someone while they’re alive. Let’s talk about depravity because that is defined for you since it’s not a word often used. [The prosecutor then read the depravity of mind instruction.] It’s pretty bad. We have a body here, the body of Karen Sue Blackwell, which had 45 knife wounds, three, I can’t remember the number, some abrasions to the top of . her head. This body was mutilated, was it not from the top of the head to the vaginal area. That body was mutilated, pure and simple. That must be the definition of mutilation. Did it happened [sic] during torture?

We don’t know that, although I will allude to the — you’ve probably looked at the pictures now and there is that thing that was called a tie wrap, I think, by one of the officers. It’s a noose. That’s what it is. Let’s not call it a tie wrap any more. It’s a noose. It was not used to choke. There’s no evidence of that. Maybe a leash would be a better term. Maybe somebody put that around the neck of Karen Sue Blackwell not to drag it any place because there are no marks on the throat but to control. Does that start to hint of a depraved mind?

All these things together, knife wounds in the front and the back, all over the arms, on the top of the head. This was a depraved, a depraved human being who did these acts. And I’m not going to argue to you that he tortured her because we don’t know for sure that that’s what happened, that he was doing it while she was awake and wanted her to suffer. But, but I think the evidence clearly shows depravity of mind and mutilation, and you only need one of those for another aggravating circumstance. We may summarize the prosecutor’s argument fairly simply.

He disavowed reliance on the “torture” part of the instruction because, in his view, the evidence did not support it: “I’m not going to argue to you that he tortured her because we don’t know for sure that that’s what happened[.]” Instead, he relied on the two other parts of the instruction. He relied on “mutilation of the victim,” emphasizing the 45 knife wounds and the “abrasions” on the top of the victim’s head. And he relied on “depravity of mind,” emphasizing the wounds and the “noose” or “leash” around the victim’s neck.

The jury found that the murder “involved torture, depravity of mind or the mutilation of the-victim.” The jury found as a mitigating circumstance that at the time of the crime Valerio was gainfully employed and that his employer spoke well of his service. The jury found, that the mitigating circumstance was insufficient to outweigh the two aggravating circumstances and imposed a sentence of death. Valerio appealed his conviction and death sentence directly to the Nevada Supreme Court.

Valerio “enumerated” only two errors in his direct appeal — first, that a photograph of the victim holding her daughter, as well as autopsy photographs, had been improperly admitted; and, second, that an argument by the prosecutor that Valerio should not be given “the opportunity to kill anyone again” was improper. The Nevada Supreme Court affirmed. Valerio’s conviction in an unpublished order.

It held that the admission of the photograph of the victim with her daughter had been improper but not prejudicial, and that the admission of-the autopsy photographs had been properly within the discretion of the trial court. It further held that the prosecutor’s argument had been improper but not prejudicial. , , In addition to any “errors enumerated” by a defendant sentenced to death, the Nevada Supreme. Court is required by statute to address three issues sua sponte on direct appeal. The statute provides, in pertinent part: 2.

Whether or not the defendant or his counsel affirmatively waives the appeal, the sentence must be reviewed on the record by the supreme court, which shall consider, in a single proceeding if an appeal is taken: (

a) Any errors enumerated by way of appeal; ■ (

b) Whether the evidence supports the finding of an aggravating circumstance or circumstances; (

c) Whether the sentence of death was imposed under the influence of passion, prejudice or any arbitrary factor; and (

d) Whether the sentence of death is excessive, considering both the crime and the defendant. NRS 17.7.055(2) (emphasis added). In affirming Valerio’s conviction, the Nevada Supreme Court addressed only the two issues listed in NRS 177.055(2)(

c) and (d). As to those two issues, it wrote: [0]ur review of the record reveals that Valerio’s sentence was not imposed under the influence of passion, prejudice or any arbitrary factor, and that the sentence of death pronounced by the jury does not constitute excessive punishment, given the magnitude and circumstances of the crime. The court did not address the issue it was required to consider under NRS 177.055(2)(b) — whether the evidence supported the jury’s finding of the two aggravating circumstances.

In affirming Valerio’s conviction and sentence, the Nevada Supreme Court did not mention the United States Supreme Court’s decision in Godfrey, rendered eight years earlier, which had made clear that a depravity of mind aggravating — circumstance instruction was unconstitutionally vague. The court also did not mention our decision in Deutscher, rendered only six days earlier, which had specifically applied Godfrey to the Nevada depravity of mind instruction. After his conviction and sentence were affirmed on direct appeal, Valerio petitioned for post-conviction collateral review in state court under NRS

Chapter 177. Valerio contended in his petition, inter alia, that the depravity of mind instruction was unconstitutionally vague. The state district court noted that Valerio had not raised the unconstitutionality of the instruction on direct appeal, but it nonetheless addressed (and rejected) the argument on the merits. It wrote: The argument that the aggravating circumstance “depravity of mind” is unconstitutional and renders the petitioner’s death penalty invalid was not raised on direct appeal.

However, the Supreme Court has declared the term “depravity of mind” as being language that is “plain and intelligible” and not constitutionally vague. Rogers v. State, 101 Nev. 457, 467, 705 P.2d 664 (1985). See also: Deutscher v. State, 95 Nev. 669, 687, 601 P.2d 407 (1979) and McKenna v. State, 101 Nev. 838, 351, 705 P.2d 614 (1985). The Supreme Court recently reaffirmed the depravity of mind instruction in Robins v. State, Nev. Adv. Op. 108, filed September 19, 1990, wherein it distinguished the case from Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980).

The death sentence is not solely based upon a “depravity of mind” aspect. This case involved torture of the deceased. The petitioner stabbed the victim 45 times with the intent to cause cruel pain and suffering for some sadistic purpose and such acts involved a high probability of death. Deutscher v. State, 95 Nev. 669, 601 P.2d 407 (1979). The Nevada district court thus provided two responses to Valerio’s argument. First, as to the depravity of mind instruction, the court held that it was not unconstitutionally vague.

The court wrote that the Nevada Supreme Court had “declared the term ‘depravity of mind’ as being ... not constitutionally vague” in Rogers v. State in 1985, and that it had “recently reaffirmed the depravity of mind instruction” in Robins v. State in 1990. In fact, however, the Nevada Supreme Court had not “reaffirmed” the constitutionality of the instruction in Robins. Rather, it had done just the opposite; based on Godfrey, it had held the instruction unconstitutional and had provided a new, narrowed construction.

The state district court neither described the narrowed construction provided in Robins, nor tried to evaluate the evidence under that narrowed construction. The court did not mention our decision in Deutscher holding that the Nevada depravity of mind instruction was unconstitutional; instead, it cited only an earlier state court decision in that case. Second, the state district court held that there was, in any event, torture within the meaning of the instruction. It did not mention the fact that the prosecutor, in his closing argument to the jury, had specifically stated that the evidence did not show torture.

It did not discuss the fact that there was no evidence of torture beyond the wounds themselves. And it did not mention the fact that there was no evidence of the killer’s “intent” or “sadistic purpose” beyond the nature of the wounds. Valerio appealed the state district court’s denial of his post-conviction petition to the Nevada Supreme Court. In an unpublished order, that court rejected on the merits Valerio’s argument that the depravity of mind instruction was unconstitutional. It wrote in a footnote: [Valerio] contends that the jury was improperly instructed.

We agree with the district court that the murder of Karen Blackwell involved torture (or serious physical abuse). In Robins v. State, 106 Nev. 611, 629, 798 P.2d 558, 570 (1990), we recognized that a depravity of mind instruction must include “torture, mutilation or other serious and depraved physical abuse beyond the act of killing itself, as a qualifying requirement to [the] aggravating circumstance.” In this case, evidence that Ms.

Blackwell was stabbed more than forty-five times, had “defensive wounds” on her hands and arms, and died not from one wound but from all wounds combined, satisfies us that she was subjected to torture and/or serious physical abuse before she died. As in Robins, we thus conclude that the depravity of mind instruction in Mr. Valerio’s case was not unconstitutionally vague as applied.

The Nevada Supreme Court’s response to Valerio’s argument may be summarized as follows: It first “agreed” with the state district court that the murder “involved torture (or serious physical abuse),” even though the state district court had held only that the murder involved torture. Then, unlike the state district court, it discussed, and relied on, the narrowed construction of the instruction supplied in Robins. Finally, it held that the evidence in the case “satisfies us” that there had been “torture and/or serious physical abuse” before the victim’s death.

Like the state district court, the Nevada Supreme Court did not mention that the prosecutor had disavowed any conclusion that there had been torture, or discuss the evidence (or lack thereof) supporting a conclusion that Valerio intended to torture the victim. C.

Failure of the Nevada Supreme Court to Cure the Erroneous Jury Instruction Because the depravity of mind aggravating-circumstance instruction, as given to Valerio’s jury, was unconstitutionally vague under Godfrey, see 446 U.S. at 427-30, 100 S.Ct. 1759; see also Deutscher, 884 F.2d at 1162-63; McKenna, 65 F.3d at 1489, the use of that instruction at Valer-io’s sentencing was contrary to clearly established law as determined by the United States Supreme Court.

See 28 U.S.C. § 2254(d)(1) (“An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted ... unless the adjudication of the claim—(1) resulted in a decision that was contrary to, or involved air unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”). When a state trial court sentences a defendant to death based in part on an unconstitutionally vague aggravating circumstance, the state appellate court may affirm the sentence in three ways.

First, it can find the error harmless under Chapman v. California, 386 U.S. 18, 24, 87 5.Ct. 824, 17 L.Ed.2d 705 (1967). Under Chapman, the state appellate court can affirm if it finds beyond a reasonable doubt that the same result would have been obtained without relying on the unconstitutional aggravating circumstance. See Clemons v. Mississippi, 494 U.S. 738, 752-53, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990) (approving Chapman harmless error analysis as method for curing unconstitutional jury instruction).

Second, a state appellate court can cure the error by the method approved in two cases decided the same day, Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), and Lewis v. Jeffers, 497 U.S. 764, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990). (For ease of discussion, we refer to this method as a Walton analysis.) In a Walton analysis, a state appellate court provides a narrowed construction of the unconstitutional aggravating circumstance, and then itself performs a de novo evaluation of the evidence to determine if the aggravating circumstance exists.

As the Court wrote in Walton, “a state appellate court may itself determine whether the evidence supports the existence of the aggravating circumstance as properly defined.” 497 U.S. at 654, 110 S.Ct. 3047. As it elaborated in Jeffers, “a state court’s finding of an aggravating circumstance in a particular case” is “a de novo finding by an appellate court” that the fact of the aggravating circumstance exists. 497 U.S. at 783, 110 S.Ct. 3092. In performing a Walton analysis, the state appellate court is not reviewing a lower court finding for correctness; it is, instead, acting as a primary factfinder.

A Walton analysis is available not only when the trial judge knows,. or is presumed to know, the narrowing construction. See Walton, 497 U.S. at 653, 110 S.Ct. 3047. It is also available when the “trial judge fails to apply the narrowing construction or applies an improper construction.” Id. at 653-54, 110 S.Ct. 3047. The Supreme Court has applied a Walton analysis only in Walton and Jeffers. In both of these cases, the penalty-phase factfinder at trial was a judge. The Supreme Court has never applied, or approved, a Walton analysis where the factfinder was a jury.

Third, a state appellate court can cure a penalty-phase instructional error by “reweighing” aggravating and mitigating circumstances under Clemons, 494 U.S. at 748, 110 S.Ct. 1441. If the appellate court does not use a Walton analysis to find the existence of an aggravating circumstance that had been found at trial under an erroneous standard, that aggravating circumstance cannot be relied upon, in any respect, to affirm a death sentence.

But under Clemons, a state appellate court may nonetheless affirm the death sentence by disregarding the aggravating circumstance found under an invalid instruction, and then reweighing the remaining valid aggravating and mitigating circumstances. Reweighing under Clemons differs significantly from a Walton analysis. Under Clemons, the state appellate court reweighs aggravating and mitigating circumstances that have already been found by a jury to exist. The appellate court does no independent factfinding, but rather relies on facts already found by the jury.

That is, under Clemons, the appellate court evaluates and “reweighs” the aggravating and mitigating circumstances, but it does not independently determine whether those circumstances exist. Under Walton, by contrast, the appellate court applies a narrowing construction and then does its own independent de novo factfinding to determine whether the evidence supports the existence of one or more aggravating circumstances under the narrowed construction. Further, a Clemons reweighing is performed when the penalty-phase fact-finder was a jury.

See Clemons, 494 U.S. at 745, 110 S.Ct. 1441 (“Nothing in the Sixth Amendment as construed by our pri- or decisions indicates that a defendant’s right to a jury trial would be infringed where an appellate court invalidates one of two or more aggravated circumstances found by the jury, but affirms the death sentence after itself finding that the one or more valid remaining aggravating factors outweigh the mitigating evidence.”). Under Walton, by contrast, appellate court factfinding is done only when the factfin-der was a judge.

In reviewing the state district court’s denial of Valerio’s post-conviction petition, the Nevada Supreme Court in this case did not perform a harmless-error analysis under Chapman. Nor did it reweigh under Clemons. Rather, it affirmed the sentence by applying a narrowed construction and engaging in de novo factfinding under Walton. We must decide whether the Nevada Supreme Court thereby succeeded in curing the unconstitutionally vague jury instruction. ' For two independently sufficient reasons, we conclude that it did not. 1.

Walton Appellate Factfinding is Not Available When the Penalty-Phase Factfinder was a Jury The Supreme Court has approved Walton appellate court factfinding only in cases in which the factfinder during the penalty-phase trial was a judge. See Walton; see also Lewis v. Jeffers, 497 U.S. 764, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990). The Court has never applied Walton to cases in which the factfinders were juries. Indeed, the Court explicitly stated in Walton that its reasoning did not apply to jury cases. The petitioner-defendant in Walton had argued under the reasoning of Maynard v. Cartwright and Godfrey v.

Georgia that the unconstitutionally vague aggravating circumstance applied by the trial judge in his case required that the death sentence be vacated. In both Maynard and Godfrey, the Supreme Court had reversed death sentences outright because of unconstitutionally vague aggravating circumstances contained in jury instructions. However, the Supreme Court in Walton found Maynard and Godfrey not controlling because the death sentences in those cases had been imposed by juries.

It wrote: When a jury is the final sentencer, it is essential that the jurors be properly instructed regarding all facets of the sentencing process. It is not enough to instruct the jury in the bare terms of an aggravating circumstance that is unconstitutionally vague on its face. That is the import of our holdings in Maynard and Godfrey. But the logic of those cases has no place in the context of sentencing by a trial judge. Walton, 497 U.S. at 653, 110 S.Ct. 3047 (emphasis added).

The Nevada Supreme Court itself now agrees that the Walton appellate factfind-ing procedure is not available when the penalty-phase factfinder was a jury. In Valerio’s case, the Nevada Supreme Court applied a Walton analysis (although without invoking Walton by name) to apply the narrowing construction supplied by Robins and to find the facts de novo. But in a later case, Pertgen v. State, 110 Nev. 554, 875 P.2d 361 (Nev.1994) (per curiam), abrogated in part on other grounds by Pellegrini v.

State, 117 Nev. -, 34 P.3d 519 (Nev.2001), the Nevada Supreme Court held that the Walton procedure could not be applied in Nevada because juries are the penalty-phase factfinders in that state. It wrote: Although the Court [in Walton ] upheld the imposition of the death penalty, Walton is factually distinguishable from the present case. In Walton, the death sentence was imposed by a trial judge, who is presumed to know the law and to apply it in a constitutional manner. By contrast, in this case, the death sentence was imposed by a jury. Id. at 562-63. We agree with the Nevada Supreme Court’s holding in Pertgen.

Walton does not allow a state appellate court to apply a narrowing construction to an unconstitutional instruction, and to engage in de novo factfinding, when the penalty-phase factfinder has been a jury. We therefore conclude that the Nevada Supreme Court’s de novo factfinding under Walton did not—-because it could not— cure the error caused by the unconstitutionally vague jury instruction. 2.

The Nevada Supreme Court Did Not Provide “Close Appellate Scrutiny” Even if we assume that Walton could have been used to cure an unconstitutionally vague aggravating-circumstance jury instruction, the Nevada Supreme Court did not fulfill its responsibilities under Walton. The Supreme Court has emphasized that a state appellate court must engage in “close appellate scrutiny” when affirming a death verdict where an unconstitutionally vague aggravating circumstance was applied at trial, and the Nevada Supreme Court did not provide such scrutiny.

A state appellate court cannot “affirm a district court without a thorough analysis of the role an invalid aggravating factor played in the sentencing process.” Stringer v. Black, 503 U.S. 222, 230, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992). In Clemons v. Mississippi the Supreme Court could not be sure that the state Supreme Court had performed a proper reweighing or had' conducted an appropriate harmless-error analysis, and it refused to accept that court’s “cryptic holding.” 494 U.S. at 753, 110 S.Ct. 1441. In Sochor v.

Florida, 504 U.S. 527, 540, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992), the Supreme Court noted that while it did not require a “particular formulaic indication” that the state appellate court had performed constitutional harmless-error analysis, it could not accept “allusions by citation” that stopped “far short of clarity.” According to the Supreme Court in Stringer, “[w]e require close appellate scrutiny of the import and effect of invalid aggravating factors to implement the well-established Eighth Amendment requirement of individualized sentencing determinations in death penalty cases.” 503 U.S. at 230, 112 S.Ct. 1130 (citing cases) (emphasis added); see also Jeffers v.

Lewis, 38 F.3d 411, 414 (9th Cir.1994) (en banc) (“Close state appellate scrutiny is required.”) (emphasis added). We therefore examine the decision of the Nevada Supreme Court in this case to determine whether it gave the required “close appellate scrutiny” to the “import and effect of [the] invalid aggravating factor” in this case. Stringer, 503 U.S. at 230, 112 S.Ct. 1130; Jeffers, 38 F.3d at 414. In the context of this case, we must determine whether the-Nevada Supreme Court actually performed the analysis contemplated by Walton. That, analysis requires two steps.

First, the state appellate court must provide a constitutionally adequate narrowing construction to the unconstitutionally vague aggravating circumstance. Second, the appellate court must make an independent, de novo determination of whether the evidence introduced at trial proves the existence of the narrowed aggravating circumstance. See Walton, 497 U.S. at 645-46, 654, 110 S.Ct. 3047. The Nevada Supreme Court performed the first step in Robins, by construing the depravity of'mind instruction to require “torture, mutilation, or other serious" and depraved physical abuse beyond the act of killing itself.” The.

Nevada Supreme Court, then purported to perform the second step when it applied that narrowed construction to Valerio’s case. ■■ See order, quoted supra, p. 18. However, it is appar-^ ent from its order that the Nevada Supreme Court did not properly perform the second step of its Walton analysis. The court recited accurately the narrowing Robins construction.

But it is clear from the face of the order that the court’s evaluation of the evidence under the narrowed instruction did not meet the United States Supreme Court’s standard of “close appellate scrutiny.” First, the Nevada Supreme Court stated that it “agree[d]” with the state district court that the murder involved “torture (or serious physical abuse)” 'and that it was “satisfied” that the evidence showed that there was “torture and/or physical abuse” (emphases added).

We conclude, from the use of the word “or” and the phrase “and/ or,” that the Nevada Supreme Court may have meant to do no more than to agree with .the district court’s finding of torture. Agreement with the state district court on torture was- a clearly insufficient basis upon which to affirm the conviction.

Robins had narrowed the definition of “torture” by adding the qualification that any torture had to be “beyond the act of killing itself.” However, the district court had not applied that limiting language in finding that there had been torture; rather, it had mischaracterized Robins as “reaffirming” the constitutionality of the depravity of mind instruction as it had been given. (Although it is not strictly relevant to our analysis, we also note that the prosecutor conceded in his closing argument to the jury that there had not been torture.

Thus, it is less than clear that the evidence supported a finding of torture, even in the unqualified sense of the word.) Second, the Nevada Supreme Court’s phrase “serious physical abuse” is taken from the longer formulation in Robins (“serious and depraved physical abuse beyond the act of killing itself’). The state district court had not found serious physical abuse. Indeed, it had not mentioned physical abuse, serious or otherwise.

Because the state district court had made no such finding, there was nothing in that court’s order with respect to “serious physical abuse” with which the Nevada Supreme Court could have agreed. Third, the Nevada Supreme Court stated that, as it viewed the evidence, the victim “died not from one wound but from all the wounds combined.” This view of the evidence is inconsistent with the court’s application of the narrowed version of the instruction that it was purporting to apply. As noted above, Robins requires that there be “serious and depraved physical abuse beyond the act of killing itself” (emphasis added).

If, as the Nevada Supreme Court believed, the victim died from all the wounds combined, the wounds did not constitute abuse beyond the act of killing itself. We therefore conclude that the Nevada Supreme Court did not engage in the “close appellate scrutiny” required by Stringer and Jeffers, and that its analysis under Walton did not cure the erroneous jury instruction, even if it could have done so. D.

Harmless Error Based on the foregoing, we know that the depravity of mind aggravating-circumstance jury instruction was unconstitutionally vague, and that the Nevada Supreme Court did not cure the instructional error. We must therefore determine whether the error was harmless. 1. Harmless Error Analysis When a Walton Analysis is Unavailable We have held that state appellate court factfinding under Walton is not available in this case because the aggravating and mitigating circumstances were found by a jury rather than a judge.

Because the instructional error was not cured (and was not curable) under Walton, it is possible that the use of the unconstitutionally vague “depravity of mind” jury instruction is not susceptible to harmless error review. In Maynard v. Cartwright and Godfrey v. Georgia, the Supreme Court reversed outright the death sentences based on unconstitutionally vague aggravating jury instructions, without engaging in any harmless error analysis. See Maynard, 486 U.S. at 363-66, 108 S.Ct. 1853; Godfrey, 446 U.S. at 432-33, 100 S.Ct. 1759. However, Maynard and Godfrey were both decided before Brecht v.

Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), and the impact of Brecht on the analysis in those cases is not entirely clear. We need not decide whether the structural error approach of Maynard and Godfrey should be applied because we hold that the Brecht harmless error standard should be applied, if a Walton analysis is available, based on the failure of the Nevada Supreme Court to provide “close appellate scrutiny.” As we discuss in the next section, the instructional error was not harmless under Brecht. 2.

Harmless Error Analysis When There Has Been No “Close Appellate Scrutiny” We have also held that, even if a Walton analysis is available, the Nevada Supreme Court failed to cure the instructional error because it did not provide the required “close appellate scrutiny.” Under this view of the case, we must determine which of two possible harmless error standards applies. The first is the “rational factfinder” standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The second is the “substantial and injurious effect or influence” standard of Brecht.

For the reasons that follow, we believe that Brecht provides the appropriate standard in this case. a. Harmless Error under Jackson v. Virginia If a Walton analysis were available in this case despite the fact that the penalty-phase factfinder was a jury, and if the state appellate court had provided the required “close appellate scrutiny,” we would evaluate the case under the “rational fact-finder” standard of Jackson.

Under Jackson, a federal habeas court must ask “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. 2781 (emphasis in original). In Jackson itself, the “rational factfinder” standard was applied to factfinding by the trial-level factfinder when no error, other than insufficiency of the evidence, was asserted.

In Jeffers, 497 U.S. at 781, 110 S.Ct. 3092, the- Supreme Court extended Jackson to factfinding by a state appellate court under Walton. In Jeffers, the Court held that when a state appellate court, acting under Walton, provides a constitutionally valid narrowing

interpretation of an ' aggraváting circumstance, and then finds, on de novo review of the evidence, that the circumstance existed, a federal habeas court should provide a deferential review. “Where the issue is solely whether a state court has properly found the existence of a constitutionally narrowed aggravating circumstance, - we have never required federal courts ‘to peer majestically over the [state] court’s shoulder so that [they] might second-guess its

interpretation of the facts that quite reasonably—perhaps even quite plainly—fit within the statutory language.’ ” Id. at 780-81, 110 S.Ct. 3092 (citation omitted). “[A] federal court should adhere to the Jackson standard even when reviewing the decision of a state appellate court that has independently reviewed the evidence!.]” Id. at 783, 110 S.Ct. 3092. However, we do not believe that the Jackson standard should be applied in this case.

Jeffers’ application of the Jackson “rational factfinder” standard is premised on the state appellate court’s actually having performed the required “close appellate scrutiny” when it engaged in a Walton analysis. In the ordinary case, comity would require that we assume that the state court provided “close appellate scrutiny” when it made a de novo evidentiary determination that the constitutionally narrowed aggravating circumstance existed.

But where, as here, it is clear from the face of the state appellate court’s order that it has not provided such scrutiny, the premise for applying the Jackson standard does not exist. b. Harmless Error under Brecht v. Abrahamson The usual standard for harmless error on federal habeas corpus for state prisoners is provided by Brecht. We hold that the Brecht harmless error standard applies when there has been a failure to engage in the “close appellate scrutiny” required when a state appellate court engages in a Walton analysis.

Under Brecht, an error is not harmless if it has a “ ‘substantial and injurious effect or influence in determining the jury’s verdict.’ ” 507 U.S. at 637, 113 S.Ct. 1710 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). The state, rather than Valerio, bears the “risk of doubt” in our harmless-error analysis. See O’Neal v. McAninch, 513 U.S. 432, 439, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). Thus, the state must provide us with a “fair assurance” that there was no substantial and injurious effect on the verdict. Gray v.

Klauser, 282 F.3d 633, 651 (9th Cir.2002); United States v. Hitt, 981 F.2d 422, 425 (9th Cir.1992). See also O’Neal, 513 U.S. at 443, 115 S.Ct. 992 (“the State normally bears responsibility for the error that infected the initial trial”); Payton v. Woodford, 299 F.3d 815, 828 (9th Cir.2002) (en banc) (“Only if the State has persuaded us that there was no substantial and injurious effect on the verdict do we find the error harmless.”).

Under the Robins narrowing construction, the jury should have been asked whether, beyond a reasonable doubt, the murder involved “torture, mutilation, or other serious and depraved physical abuse beyond the act of killing itself.” In the instruction that was actually given, the jury was asked whether, beyond a reasonable doubt, the murder involved “torture, depravity of mind or mutilation of the victim.” The jury answered “yes.” Valerio has not challenged the constitutionality of the Robins narrowing construction, and we assume for purposes of this analysis that it is constitutional.

The question for us, therefore, is whether the actual instruction had a “substantial and injurious effect or influence” on the jury’s verdict, in comparison to what the verdict would have been if the narrowed instruction had been given. Under the narrowed instruction, Valer-io’s counsel could have argued much more effectively than under the actual instruction that the aggravating circumstance was not present. We know that the prosecutor himself conceded that the evidence did not support a finding of “torture,” even under the pre-Robins broad definition of torture.

The prosecutor could still have argued under Robins for a finding of “mutilation,” as he did during the actual penalty-phase tidal, and for a finding of “serious physical abuse.” But the prosecutor would have had greater difficulty making those arguments, for, under Robins, the mutilation and serious physical abuse must have been caused by

an act “beyond the act of killing itself.” 106 Nev. at 629, 798 P.2d 558. Based on the evidence in the record, a juror could readily have concluded that the victim died from the cumulative effect of all her wounds.

The Nevada Supreme Court, in affirming the denial of Valerio’s petition for post-conviction relief under NRS 177, stated as much, acknowledging the evidence that the victim “died not from one wound but from all wounds combined.” If this is so, a juror could readily have concluded that none of the wounds constituted mutilation or serious physical abuse “beyond the act of killing itself.” If a single member of the jury had been convinced under the narrowed construction that there was a reasonable doubt in favor of Valerio, the jury could not have returned a verdict finding that the aggravating circumstance existed.

Given the relative ■ ease with which a juror could have come to that conclusion based on the evidence presented, we conclude that the erroneous instruction had a “substantial and injurious effect or influence” on the verdict, and that the Brecht standard was met.

We therefore reverse the district court and remand with instructions that, should the district court not issue a writ with respect to the guilt phase of Valerio’s trial, it shall grant the petition for a writ of habeas corpus as to the penalty phase, unless the state within a reasonable period of time either grants a new penalty trial or vacates the death sentence and imposes a lesser sentence consistent with law.

The district court is also directed to provide any appropriate interim relief, pending a final decision on Valerio’s guilt-phase claims, resulting from our holding that the death penalty was improperly imposed. We next consider whether to grant a COA as to the issues that relate to the guilt phase of Valerio’s trial. III. Applicability of Circuit Rule 22-1 Valerio sought to appeal the denial of his second federal habeas petition after the April 24, 1996, effective date of the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214.

His appeal is therefore controlled by the appellate review provisions of AEDPA. See Slack v. McDaniel, 529 U.S. 473, 480-82, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). AEDPA requires that a habeas petitioner obtain a COA of specified issues as a precondition for appellate review. The requirement states, in pertinent part:

(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from: (

A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; ■* * *

(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.

(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 28 U.S.C. § 2253(c). The word “judge” in § 2253(c)(1) includes not only a circuit judge but also a district judge. That is, both circuit and district judges have the authority under § 2253(c)(1) to grant COAs. See United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir.1997); see also Fed. R.App.

P. 22(b)(1) (“In a habeas corpus proceeding in which the detention complained of arises from process issued by a state court, ... the applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c)....

If the district judge has denied the certificate, the applicant may request a circuit judge to issue the certificate.”)- Although neither AED-PA nor Federal Rule of Appellate Procedure 22 specifically so provides, a court of appeals not only has the power to grant a COA where the district court has denied it as to all issues, but also to expand a COA to include additional issues when the district court has granted a COA as to some but not all issues. See Hiivala v.

Wood, 195 F.3d 1098, 1104 (9th Cir.1999) (per curiam); Cruz-Mendoza II, 163 F.3d at 1149-50; Cruz-Mendoza I, 147 F.3d at 1074-75, amended and superseded in part by Cruz-Mendoza II. We promulgated Ninth Circuit Rule 22-1 to specify detailed procedures for COA applications under § 2253(

c) and Rule 22, including procedures for applying for an expanded COA. That rule provides, in pertinent part: (

d) Partial Denial By District Court; Motion By Petitioner. If the district court denies a certificate of appealability in part, the court of appeals will not consider uncertified issues unless petitioner first seeks, and the court of appeals grants, broader certification. Petitioners desiring broader certification must file, in the court of appeals, a separate motion for broader certification, along with a statement of reasons why a certificate should be granted as to any issues(

s) within thirty-five days of the district court’s entry of its order denying a certificate of appealability. Ninth Cir. R. 22-l(d). We addressed the applicability of Circuit Rule 22-1 to a petitioner in Valer-io’s situation in United States v. Zuno-Arce, 209 F.3d 1095 (9th Cir.2000), amended by 245 F.3d 1108 (9th Cir.2001). Zuno-Arce held that Rule 22-1 applies to a petitioner whose request for a COA was partially denied more than thirty-five days prior to the effective date of Rule 22-1, but whose briefing was completed after the effective date of the rule. 209 F.3d at 1100-01.

For the reasons that follow, we overrule our decision in Zuno-Arce. The effective date of Circuit Rule 22-1 was January 1, 1999. Prior to the adoption of Rule 22-1, we had no applicable circuit rule. In the absence of such a rule, we had held on June 23, 1998 that a petitioner who had received a partial COA from the district court could apply for an expanded COA from the court of appeals by the simple expedient of briefing the uncertified issue or issues to us.

See Cruz-Mendoza I, 147 F.3d at 1074 (“We now hold that, in the interest of efficiency, where a district judge has issued a COA on some but not all of the issues, we will treat the briefing of an uncertified issue as a request for a COA and first decide whether one should issue.”). In so holding, we cited and followed the practices of the Sixth and Seventh Circuits. See id. (citing In re Certificates of Appealability, 106 F.3d 1306, 1307 (6th Cir.1997) (administrative order); Williams v. Parke, 133 F.3d 971, 975 (7th Cir.1997)).

Valerio timely filed his notice of appeal in the district court on September 18, 1998. The district court entered an order granting the COA as to some issues and denying it as to others on October 15, 1998. Both dates are after our decision in Cruz-Mendoza I and before the effective date of Circuit Rule 22-1.

That is, when Valerio filed his notice of appeal and when the district court partially granted and partially denied his request for a COA, the clearly stated, then-effective law of this circuit was that it was sufficient for a habeas petitioner to brief to the court of appeals the issues for which he sought an expanded COA. Circuit Rule 22-1 changed the practice approved in Cruz-Mendoza I.

The rule provides that petitioners wishing to expand a COA must file “within thirty-five days of the district court’s entry of its order denying a. certificate of appealability” a “separate motion for broader certification” in the court of appeals. Ninth Cir. R. 22-1 (emphasis added). When the rule became effective on January 1, 1999, two and one-half months had elapsed since the district court’s partial denial of Valerio’s request for a COA.

Therefore, as of the effective date of the rule, Valerio could not possibly have complied with its requirement that a separate motion be filed within thirty-five days of the district court’s denial. Valerio never made a separate-motion to this court for an expanded COA. Rather, he simply briefed the issues as to which he sought an expanded COA, in accordance with the practice we had endorsed- in Cruz-Mendoza I six months before the effective date of Rule 22-1.

The question before us is whether Valerio’s failure to make a separate motion for a COA, analogous to the separate motion specified in Rule 22-1, prevents him from obtaining an expanded COA, even though he has briefed the relevant issues to us. Stated otherwise, the question is whether the “separate motion” provision of Rule 22-1 applies, in a manner not specified in the rule, to a habeas petitioner who is unable to comply with the rule as it is written. Our answer is “no.” Supreme Court and Ninth Circuit case law both lead us to the same result. In Landgraf v.

USI Film Prods., 511 U.S. 244, 275, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), the Court wrote, “Changes in procedural rules may often be applied in suits arising before their enactment without raising concerns about retroactivity.” But a rule may not be applied retroactively when doing so would “attaeh[ ] new legal consequences to events completed before its enactment.” Id. at 270, 114 S.Ct.. 1483. Changes to previously established procedural practices or rules must be examined to determine whether or not application of a new or changed rule to pending cases is appropriate.

Id. at 275 n. 29, 114 S.Ct. 1483 (“Of course, the mere fact that a new rule is procedural does not mean that.it applies to every pending case.”). In Volkswagenwerk Aktiengesellschaft v. Church, 413 F.2d 1126 (9th Cir.1969), we declined to apply a revised circuit rule shortening the time period for lodging exceptions to a cost bill to' an appeal pending at the time the rule was adopted.

We noted in Volkswagenwerk that.the order adopting the new- rule at issue had provided: [The new rule] shall govern in all such proceedings ... then pending, except to the extent that in the opinion of the court of appeals their application to a particular proceeding then pending zvould not be feasible or would work an injustice, in which case the former procedure may be followed. Id. at 1127 (emphasis added). We wrote, “[w]e think that in this case we should apply the former [rule] in order to avoid injustice.” Id. at 1127-28.

Even in the absence of such a specific statement in the order adopting a new circuit rule, our holding in Volkswagenwerk is applicable. Where the application of a new circuit rule — either directly or by analogy — would not be feasible or would work an injustice, that new rule should not be applied. Even where we do not explicitly so state, we view such a statement as implicit in the promulgation of any circuit rule. Circuit Rule 22-1, by its own terms, has no provision applicable, in any respect, to a petitioner in Valerio’s position.

The rule does not, for example, direct a petitioner for whom more than thirty-five days have already elapsed at the effective date of the rule to file a separate motion within thirty-five days of the effective date. In the absence of any direction to a petitioner in Valerio’s position — or, indeed, any acknowledgment that someone in his position even existed — it was not unreasonable for Valerio to assume that the rule simply did not apply to him.

This is particularly so given that, prior to the adoption of the Rule, Cruz~Mendoza I had specifically approved briefing to the court of appeals as a mechanism for seeking an expanded COA. See 147 F.3d at 1074. We therefore hold that Circuit Rule 22-1 does not apply, either directly or by analogy, to habeas appeals in which an expanded COA is sought in the court of appeals, and in which the district court’s order denying a COA was entered before the effective date of the Rule.

For such cases, we hold that the procedure we approved in Cruz-Mendoza I, in which briefing of the uncertified issue or issues in the court of appeals is treated as a request for an expanded COA, is available to a petitioner. In the case before us, we specifically hold that Valerio’s briefing of issues as to which the district court denied a COA is a procedurally proper request to this court for an expanded COA. There are two groups of claims for which Valerio sought an expanded COA. In the first group are three newly added claims that the district court dismissed for abuse of the writ.

In the second group are numerous claims that the district court dismissed because of asserted procedural default in state court. All of these claims relate to the guilt phase of Valerio’s trial. We now turn to the two groups of claims, and consider whether to grant an expanded COA. IV. Abuse of the Writ A. Application of Slack v. McDaniel Because Valerio’s first federal ha-beas corpus petition contained exhausted and unexhausted claims, the district court properly dismissed the petition under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).

After Valerio presented his unexhausted claims to the state court, he filed a new habeas petition in federal court. The new petition contains not only the now-exhausted claims, but also three new claims that had not been presented in the previous federal petition. Relying on our decision in Farmer v. McDaniel, 98 F.3d 1548 (9th Cir.1996), the district court dismissed these newly added claims as an “abuse of the writ.” After the district court dismissed Valerio’s newly added claims, the Supreme Court reversed Farmer in Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

Valerio has now sought an expanded COA that would include these three, claims. Following the procedure set forth in Slack, and based on Slack’s reversal of Farmer, we grant an expanded COA as to these claims. We may grant Valerio’s request for an expanded COA only if he has made “a substantial showing of the denial of a constitutional right.” 28, U.S.C. § 2253(c)(2).

When a district court .has relied on a procedural ground to dismiss a claim, our decision whether to grant a COA has “two components, one directed at the underlying constitutional claims and one directed at the district court’s procedural holding.” Slack, 529 U.S. at 484-85, 120 S.Ct. 1595. See also Petrocelli v. Angelone, 248 F.3d 877, 883 (9th Cir.2001). Because this is a capital ease, we resolve in Valerio’s favor any doubt about whether he has met the standard for a COA. Id. at 884. We first address the procedural holding of the district court.

Valerio satisfies the procedural component of Slack if he shows “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595. Rule 9(

b) of the Rules Governing

Section 2254 Cases provides: “A second or successive 'petition [alleging new and different grounds] may be dismissed if ... the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ ” (emphasis added). The district court concluded, relying on Farmer, that Valerio’s second federal habeas petition was a “second or successive petition” under Rule 9(b), and that the inclusion of the three new claims was an abuse of the writ.

However, the Supreme Court subsequently held in Slack that a federal habeas petition filed after an earlier petition has been dismissed for- failure to exhaust is not a “second or successive petition” within the meaning of Rule 9(b). See Slack, 529 U.S. at 486-87, 120 S.Ct. 1595. ' Because dismissal of a claim for abuse of the writ under Rule 9(

b) is premised on the supposedly abusive claim’s having been included in a second or successive-petition, such a dismissal is not available when the earlier petitions were dismissed for failure to exhaust. See id. ’ The district court’s dismissal of Valerio’s- three new claims1 for abuse of .the -writ was thus based on an erroneous view of the law, for, as we now know from Slack, Valerio’s second federal habeas petition was not a second or successive petition within the meaning of Rule 9(b).

Our conclusion that the district court erred “more than meets Slack’s requirement that ‘jurists of reason would find it debatable whether The district court was correct in its procedural, ruling.’ ” Petrocelli, 248 F.3d at 885 (quoting Slack, 529 U.S. at 478,120 S.Ct. 1595). We next'address the underlying constitutional rights asserted in Valerio’s three newly added claims. Under the second ' component' of Slack,' Valerio must show “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.” 529 U.S. at 484, 120 S.Ct. 1595.

Because the claims were dismissed on procedural grounds by the district court and were not developed or argued on the merits in that court, we “simply take a ‘quick look’ at the face of the complaint to determine whether the petitioner has ‘facially allege[d] the denial of a constitutional right.’ ” Petrocelli, 248 F.3d at 885 (citations omitted). The new claims are an amendment to claim 16(h), and new claims 17(

m) and'25. Amended claim 16(

h) and claim 17(

m) allege that Valerio received ineffective assistance of counsel in violation of the Sixth Amendment. Claim 25 alleges that the prosecution withheld exculpatory evidence in violation of the Due Process Clause of the Fourteenth Amendment. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Because all three claims facially allege violations of constitutional rights, the substantive component of Slack is dearly satisfied. We therefore grant the broadened COA and remand to the district court to allow it to deal appropriately with Valerio’s three newly added claims. B.

Unexhausted Claims and Mixed Petition It is possible that none of the three newly added claims has been exhausted in state court. Two of the three—■ amended claim 16(

h) and claim 17(m)—are based on ineffective assistance of counsel, and may be exhausted. Valerio has already presented IAC claims to the state court, and those IAC claims are exhausted. If the two new claims are sufficiently related to the exhausted claims, they, too, are exhausted. The question under Humphrey v.

Cady, 405 U.S. 504, 517 n. 18, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972), is whether they are “so clearly distinct from the claims ... already presented to the state courts that it may fairly be said that the state courts have had no opportunity to pass on the claim.” The district court has not yet applied a Humphrey analysis, and we will not prejudge the result here. It is enough for our purposes to note that the two new IAC claims may, or may not, be exhausted. The third new claim—claim 25—is a Brady claim. Valerio has made no Brady claim to the state courts, and this claim therefore appears to be unex-hausted.

The claim may be time-barred in state court, see, e.g., NRS 34.726, NRS 34.800; see also Pellegrini, 34 P.3d at 526, but we are not in a position to decide that question. When the district court decided the merits of Valerio’s claim that the depravity of mind jury instruction was unconstitutional, there were no pending unexhausted claims. The district court had dismissed the three newly added claims for abuse of the writ, and thus when the district court acted the petition did not contain both exhausted and unexhausted claims. The district court thus did not violate the rule of Rose v.

Lundy, which forbids a district court to decided exhausted claims that are contained in a “mixed” petition. See 455 U.S. at 510, 102 S.Ct. 1198. However, because of our holding that the district court erred in dismissing the claims for abuse of the writ, we have now revived the three claims. Once we have revived these claims, we are faced with the question of whether we should decline to rule on an exhausted claim contained in the mixed petition that we have created.

We believe that despite the revival of these three claims in this court, we are acting appropriately in deciding Valer-io’s exhausted claim that the depravity-of-mind jury instruction was unconstitutional. See

Part II, supra. The prohibition against deciding an exhausted claim in a mixed petition is not jurisdictional. The Supreme Court made this clear in Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), where it decided an exhausted claim decided by a district court in a mixed petition, holding that “the exhaustion rule requiring dismissal of mixed petitions, though to be strictly enforced, is not jurisdictional.” Moreover, the strictness of the prohibition against ruling on claims in mixed petitions is primarily directed at the district courts. Indeed, Rose v.

Lundy itself is directed only at the district courts. See, e.g., 455 U.S. at 510, 522, 102 S.Ct. 1198 (“[W]e hold that a district court must dismiss such ‘mixed petitions!.]’ “[W]e hold that a district court must dismiss habeas petitions containing both unexhausted and exhausted claims.”) (emphases added). In Granberry v.

Greer, 481 U.S. 129, 131, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987), the Court addressed the courts of appeals, emphasizing that “there are some cases in which it is appropriate for an. appellate court to address the merits of a habeas corpus petition, notwithstanding the lack of complete exhaustion.” In that case, where the State had not raised exhaustion as a defense, the Court remanded to the court of appeals to allow it “to determine whether the interests of justice would be better served by addressing the merits of the habeas petition or by requiring additional state proceedings before doing so.” Id. at 134, 107 S.Ct. 1671 (emphasis added).

For the reasons that follow, we believe that the “interests of justice would be better served” by addressing the merits of Valerio’s fully exhausted jury instruction claim. First, at the time the jury instruction claim was decided by the district court, the petition was not mixed, and the district court acted in full compliance with Rose v. Lundy. Then, when Valerio and the State briefed and argued to us, neither of them mentioned to us the problem that might be created if we revived the claims. Compare Simmons v.

Blodgett, 110 F.3d 39, 41 (9th Cir.1997) (“While we might otherwise be concerned that it is contrary to the interests of comity for a federal court to act on habeas review while an appeal is pending in the state court system, in this case the State has not raised the point.... Because exhaustion is not jurisdictional, we have no sua sponte obligation to pursue the problem further.”). Indeed, at the time the three-judge panel decided Valerio’s appeal to this court, Slack v. McDaniel had not been decided, and the basis for reviving the claims did not even exist.

Second, to the degree that there is a problem, we created it. That is, only when we revived the three claims in this court did the petition become mixed. We also created the problem in another sense. The district court dismissed the three claims for abuse of the writ because it was following our holding in Farmer v. McDaniel. The Supreme Court then overruled Farmer in Slack. If we had decided Farmer correctly, the district court would have been able, in the first instance, to determine whether some or all of the newly added claims were exhausted.

The district court would then have been able to exercise its discretion under Calderon v. District Court (Taylor), 134 F.3d 981, 989 (9th Cir.1998), to determine whether to grant a stay and hold Valerio’s petition in abeyance to allow Valerio to exhaust. If the district court had declined to allow the stay-and-abeyance procedure of Taylor, Valerio could then have decided whether to dismiss his unexhausted claims in order to proceed with his exhausted claims. In another ease in which we created a similar problem, we decided a number of unexhausted claims. In Hendricks v.

Zenon, 993 F.2d 664 (9th Cir.1993), petitioner alleged a violation of his Sixth Amendment right to counsel on appeal when he had been obliged to represent himself in the state appellate court on direct appeal. He also alleged a number of other constitutional violations, none of which had been presented to the state appellate court in a counseled appeal. We held that his Sixth Amendment right had been violated and granted the writ unless the state allowed a counseled appeal.

We recognized that because the non-Sixth Amendment claims would now almost certainly be presénted to the state appellate court, they had been rendered unexhaust-ed by our Sixth Amendment holding: “[W]e now find ourselves in the position of having ‘unexhausted’ the remainder of[petitioner’s] Constitutional claims.” Id. at 672.

We nevertheless decided these unex-hausted claims, stating that “we believe it to be in the interests of justice to exercise our authority and to decide these issues now rather than later.” Id If we appropriately believed it to be in the “interests of justice” to decide petitioner’s unex: hausted claims in Hendricks, where we created the exhaustion problem ourselves, the appropriate course in the present case is easy to discern. In this case, where we also created the problem, we now decide not numerous unexhausted claims, as in Hendricks, but rather' a single exhausted claim.

Third, the jury instruction claim is obviously one of the most important — possibly the most important — claim in Valerio’s petition. Valerio sought and received COAs on three specifically enumerated issues in the district court. The remainder of his request for a COÁ in the district was a general, undifferentiated request as to all other issues, which was denied by that court. On appeal to us, Valerio pursued two of the three COAs that were granted by the district court, both of which focused on the depravity of mind aggravating-circumstance jury instruction. And as we have held, supra

Part II) the unconstitutionality of that instruction compels a granting of the writ as to the penalty phase. By contrast, the three claims that now may make this a mixed petition are relatively unimportant.

The two IAC claims are additions to already exhausted IAC claims, and it is not clear how much they add to those claims. (Moreover, as discussed above, it is not even clear that these two claims are unexhausted.) The Brady claim may have substantive merit, but there is an obvious possibility it will be held timebarred in the state courts if Val-erio attempts to exhaust it. (If so, it is possible that the claim is exhausted because it is procedurally barred. See Phillips v.

Woodford, 267 F.3d 966, 974 (9th Cir.2001) (“[T]he district court correctly concluded that Phillips’s claims were nonetheless exhausted because ‘a return to state court would be futile.’ ”).) If we allow the presence of these three revived claims to prevent us from reaching the merits of Valerio’s jury instruction claim, we will be allowing a very small tail to wag a very large dog. Finally, the interests of judicial efficiency would be served by deciding Valerio’s jury instruction claim now.

To state it bluntly, to send this case back to the district court without deciding the jury instruction claim would be a colossal waste of time. At some point, “judicial ping-pong between the state and federal courts” serves no useful purpose. Harris v. Reed, 489 U.S. 255, 270, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (O’Connor, J., concurring). We believe that we have reached that point in this case. C. Procedure on Remand Although a district court must dismiss a “mixed” petition, containing both exhausted and unexhausted claims, see Rose v.

Lundy, it may not dismiss a mixed petition without giving the petitioner the opportunity to delete the unexhausted claims. See Tillema v. Long, 253 F.3d 494, 503 (9th Cir.2001). However, if Valer-io’s potentially unexhausted claims are deleted in order to allow the exhausted claims to go forward immediately, the now-unexhausted claims will be time-barred by AEDPA’s one-year statute of limitations if they are exhausted and then refiled in federal court. See 28 U.S.C. § 2244(d).

In order to avoid exceeding the limitations period for the newly added claims, the district court may, in its discretion, grant a stay and hold Valerio’s petition in abeyance during the pendency of the state court proceedings for these claims. See Taylor, 134 F.3d at 989; James v. Pliler, 269 F.3d 1124, 1127 (9th Cir.2001) (suggesting that district court on remand might grant stay-and-abeyance).

If the district court declines to grant a stay, it must inform Valerio that, absent equitable tolling, he will be time-barred under AEDPA on all of his claims if he does not choose to dismiss his unexhausted claims in order to proceed in federal court with his exhausted claims. V. Procedural Default in State Court After Valerio’s first federal habeas corpus petition was dismissed because it contained unexhausted claims, Valerio filed another petition for post-conviction relief in state court, this time a petition for habeas corpus under NRS

Chapter 34. (As recounted supra, Valerio’s first petition for post-conviction relief was filed under NRS

Chapter 177.) The new state-court petition contained 24 claims, some with numerous subparts. The Nevada district court divided the claims into two groups and, in an unpublished order, dismissed all of them. The first group contained claims 1-18. The Nevada district court wrote that Valerio “concede[d]” tha

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