Steven Craig JAMES, Petitioner-Appellant, v. Charles L. RYAN, Respondent-Appellee, 679 F.3d 780

ORDER W. FLETCHER, Circuit Judge: This court’s Opinion filed October 12, 2011, and reported at 659 F.3d 855 (9th Cir.2011), is withdrawn, and is replaced by the attached Opinion. With the filing of the new Opinion, the panel votes unanimously to deny the petition for rehearing and the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35. The petition for rehearing and the petition for rehearing en banc, filed November 23, 2011, are DENIED.

No further petitions for rehearing or rehearing en banc will be accepted. OPINION Death-sentenced prisoner Steven James appeals the district court’s denial of his petition for a writ of habeas corpus. James, Lawrence Libberton, and Martin Norton were convicted in separate proceedings in Arizona state court of crimes connected to the 1981 murder of Juan Maya. James, Libberton, and Norton severely beat Maya, drove him to an isolated desert area, killed him by shooting him and striking him with rocks, and threw his body down an abandoned mine shaft.

Norton, who was 14 years old at the time of the murder, agreed to testify against James and Libberton and to plead guilty in juvenile court to first-degree murder, kidnapping, armed robbery, and credit card fraud. In exchange for his testimony and guilty plea, Norton was committed to juvenile detention until he turned 18, with no subsequent incarceration. Libberton was convicted of first-degree murder, aggravated kidnapping, robbery, and theft, and sentenced to death. State v. Libberton, 141 Ariz. 132, 685 P.2d 1284, 1286 (1984).

A panel of this court granted Libberton habeas relief with respect to his death sentence. Libberton v. Ryan, 583 F.3d 1147, 1151-52 (9th Cir.2009), cert. denied, — U.S. -, 130 S.Ct. 3412, 177 L.Ed.2d 349 (2010). James was convicted of first-degree murder and kidnapping, and sentenced to death. State v. James, 141 Ariz. 141, 685 P.2d 1293, 1296 (1984). James raises three grounds for relief. First, he claims that the state failed to disclose an oral plea agreement with Norton, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v.

United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Second, he claims that the state failed to correct Norton’s false testimony denying the existence of this agreement, in violation of Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). Third, he claims that his trial counsel provided ineffective assistance at the penalty phase, in violation of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We affirm the denial of relief with respect to James’s guilt-phase claims based on Brady, Giglio, and Napue.

However, we reverse with respect to James’s penalty-phase claim of ineffective assistance of counsel, which was not decided on the merits in state court. We conclude that counsel’s complete failure to investigate and present mitigating evidence of James’s troubled childhood, his mental illness, and his history of chronic drug abuse constituted deficient performance. We further conclude that this failure prejudiced James because it prevented the sentencing judge from learning that James had “the kind of troubled history we have declared relevant to assessing a defendant’s moral culpability.” Wiggins v.

Smith, 539 U.S. 510, 535, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); see also, e.g., Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (“[Ejvidence about the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse.” (quoting California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987) (O’Con-nor, J., concurring))).

We therefore grant the writ with respect to James’s death sentence. I. Factual and Procedural Background A. Factual Background 1. The Investigation On November 17, 1981, James, Libber-ton, Norton, and Daniel McIntosh were arrested at a bank in Phoenix after Libberton attempted to obtain a cash advance on a credit card belonging to Maya. Libberton was arrested either inside or just outside the bank. James, Norton, and McIntosh were arrested in the bank’s parking lot where they were waiting in a 1975 Ford Thunderbird registered to Maya.

Libberton was booked on a forgery charge, but the others were interviewed and released. Two days later, after Maya’s father filed a missing person report on his son — and after receiving a tip from McIntosh, who had heard James and Libberton bragging about killing Maya— police located and rearrested James and Norton.

James gave a statement to Detective Russell Davis in which he recounted that Norton, followed by Maya, had burst through the door of James’s trailer on the night of November 16, claiming that Maya “was following him and trying to rape him.” Norton retrieved a revolver from James’s trailer and chased Maya outside into the trailer park. After a short time, Norton returned with Maya, sat him down on James’s couch, and “slapped [Maya] around, trying to get him to tell where his money was at.” James stated that Libber-ton and Norton then walked Maya outside to his own car.

James stated that he took the wheel and the group left in Maya’s car. At that point in the interview, James requested counsel, but shortly thereafter volunteered to show police Maya’s body. See Libberton, 583 F.3d at 1152; James, 685 P.2d at 1296. With James giving directions, Detective Davis and Sergeant Michael Midkiff drove about two hours west of Phoenix to property owned by James’s adoptive parents in the desert outside Salome, Arizona. James led Davis and Midkiff to an abandoned mine shaft several hundred yards from the entrance to the property.

Maya’s body lay at the bottom, covered with railroad ties and a rusted pipe. Tire tracks that appeared to match the treads on the tires of Maya’s Thunderbird ran from the entrance of the property to the base of the incline where the shaft was located, and a shoeprint that appeared to match the tread on Maya’s shoes was found on the incline leading up to the shaft. Two drag marks, about as far apart as the distance between a person’s feet would be, ran from a bloodstained area of terrain at the top of the incline to the shaft’s entrance.

Blood and hair consistent with Maya’s were found matted on several rocks scattered around the entrance to the mine; on the sides of the shaft; and on the railroad ties that lay across the opening of the shaft. The railroad ties and the rusted pipe on Maya’s body were not blood-stained, suggesting that they had been thrown down onto Maya. An autopsy revealed that Maya suffered lacerations to both sides of his scalp, a complicated skull fracture, and bruises and abrasions to his forehead, chin, nose, cheek, and ear.

Maya died of head injuries that included a hemorrhage and bruises to the surface of his brain, which were consistent with blows from rocks or a heavy board. 2. Norton’s Statements Norton gave several statements. Each statement inculpated James, Libberton, and himself in progressively greater detail. Because James’s Brady, Giglio, and Napue claims turn on Norton’s statements, and the differences among them, we recount them at some length. See generally Libberton, 583 F.3d at 1152-56. During his first interview on November 19, Norton told Detective Davis different versions of what happened to Maya.

Norton first said that he was hitchhiking when Maya picked him up at around 11:30 p.m. on November 16. Norton said that Maya “started talking about gay power,” so Norton asked to be let out of Maya’s car. Maya agreed but kept following Norton until Norton managed to evade Maya near a local elementary school. Norton then acknowledged that he had hit Maya. Norton said that Maya “tried to get in my pants. He puts his arm around me. He tried to kiss me.

I hit him and I hit him.” Norton told Davis that he hit Maya in the throat and the solar plexus because “I know where to hit people.” Norton stated that he broke free and escaped to James’s trailer, where he told James and Libberton that Maya had attacked him. James and Libberton went looking for Maya but could not find him. Norton’s story then changed. In this version, Norton rebuffed Maya’s sexual advances and got out of Maya’s car, but now Maya followed Norton inside James’s trailer. Norton told James, “[TJhis is the guy,” whereupon James kicked Maya in the leg.

Maya fled the trailer, but Norton, James, and Libberton pursued Maya and soon “had him surrounded.” Norton punched Maya in the stomach. The group brought Maya back into the trailer, where James and Libberton took turns beating Maya “in the face, the stomach, and the balls____ [Libberton] said he broke [Maya’s] nose.” James and Libberton talked quietly out of earshot for a few minutes, then took Maya by the arm and walked him outside to his car. Norton said that James and Libberton returned after about three hours without Maya.

James told Norton “not to tell a soul about this or [Norton] would die the same way [Maya] did.” On November 26, Norton, then detained in a juvenile facility, gave a statement to Detective Jack Hackworth in which he admitted for the first time his own participation in Maya’s murder. Norton’s story again began with Maya picking him up while hitchhiking.

Norton said that he became frightened when Maya secured the electric locks on his car doors, and that he proposed that Maya come to James’s trailer because Norton “had a friend that was also queer there and they could make out.” Norton stated that he “sort of lured [Maya] into the trailer in order to get away from him....

T told him Steve was gay and queer and he would make him happy if he’d come in the trailer.’ ” According to the interview notes, once Maya followed Norton into the trailer, Norton “turned to Steve and [Libberton] and said, ‘He’s a queer.’ ... [A]t that time Steve kicked [Maya], knocking him down, and he and [Libberton] both began to beat the man in the trailer.” James and Libberton beat Maya until he was bleeding from the nose and mouth. James took Maya’s wallet and threw it to Norton, who removed Maya’s credit cards.

Maya pleaded, “Take my ear and my credit cards and money if you want to but don’t hit me anymore.” Norton “slapped [Maya] upside the face with his right hand, telling him, ‘Don’t smart off, queer.’ ” James then produced a revolver and he, Norton, and Libberton walked Maya to Maya’s car. The group drove off, stopping at a gas station where James used one of Maya’s credit cards to buy a tank of gas and a carton of cigarettes. On the way to the mine, the group discussed shooting Maya and throwing him into the shaft.

Norton said that Maya “just sat in the back seat[,] but I know he heard what [Libberton] and Steve were saying.” When the group arrived at James’s parents’ property, Norton asked James if he was serious about killing Maya. James responded, “Yes, we’re going to shoot him.” Norton suggested breaking Maya’s legs and throwing him in the shaft instead, but Libberton countered, “[I]f we don’t kill him, he will snitch us off.” WTien the group reached the mine, it was almost daylight. James walked Maya at gunpoint up to the shaft and shot Maya in the left forearm.

James passed the revolver to Norton, who passed it to Libberton without shooting. Libberton shot Maya in the head, then returned the revolver to James, who did the same. Norton stated that Maya was not dead, so both James and Libberton “mashed [Maya’s] head in” with large rocks. James and Libberton forced Norton to do the same. Norton threw one rock and missed, then threw another, hitting Maya in the back. James and Libber-ton dragged Maya’s body to the shaft and threw him in.

On the drive back to Phoenix, James and Libberton both told Norton that “if I told anyone, I would be in the shaft with him.” Norton gave a final pretrial statement on December 29. By this time, the state had filed a juvenile delinquency petition charging Norton with murder, kidnapping, and armed robbery, as well as a request to transfer Norton’s case from juvenile to adult court.

On December 29, Norton, represented by appointed counsel Robert Wertsching, gave a tape-recorded statement to Detective Davis and Maricopa Deputy County Attorney Myrna Parker, the lead prosecutor at the trials of both James and Libberton.

During James’s federal habeas corpus proceedings in 1993, his counsel Gary Lowenthal obtained an affidavit in which Wertsching stated that soon after his appointment as Norton’s lawyer, he “had at least two conversations with the head prosecutor of the juvenile division of the Maricopa County Attorney’s office on the subject of whether the County Attorney would agree not to seek transfer of Mr. Norton to adult court.” Wertsching stated in his affidavit that “the head of the juvenile division indicated orally that if Mr.

Norton would give a full and accurate statement to the County Attorney and would testify consistently with that statement at the trials of the adults who participated in the homicide offense, the County Attorney would not seek to have [Norton] transferred to adult court.” When Norton gave his December 29 statement, therefore, both he and Wertsching “expected that if[Norton] was truthful in the debriefing and cooperated fully with the prosecution of the adult defendants, he would not be remanded to adult court....

Subsequent to the formal jail interview with Myrna Parker, [Norton] and I signed a formal written agreement that conformed with the oral understanding I had previously reached with the juvenile division prosecutor.” Parker began the interview, which was recorded and transcribed verbatim, by telling Norton: I’m offering you absolutely nothing today except that [ ] I’m not going to use any of the statements that you make today against you....

The end result of this interview with you is that we are going to attempt to set up an agreement between you, your attorney and the county attorney’s office regarding the charges that are now pending against you in the death of [Maya]. None of that has been put down in writing at this time, and in fact we haven’t even explored what those possibilities may be. It will all depend on your truthfulness during this interview today. Norton stated that, at the time of the murder, he had been living with James for about a week.

He described James as “big,” “heavy,” and “real mean.” Norton said that James “was really heavy into drugs, marijuana, cocaine, heroin.” Norton knew that James kept a loaded .44 revolver under a chair in his living room “because his wife had been kidnapped from what I hear and he wanted that for protection.” Norton said that on November 16, he, James, Libberton, McIntosh, and Norton’s friend “Ralph” were smoking marijuana at James’s trailer. Norton and “Ralph” left the trailer around 10:30 p.m. to “dine and dash” — that is, to eat and then skip out on the check — at a local diner.

Norton said that James had been drinking vodka and smoking marijuana and was not drunk when he left, but was “on the way there” and “feeling good.” James was “more high than he was drunk” and “staggered a little bit when he went to the restroom.” Norton and “Ralph” were caught trying to dodge the check at the diner, picked up by police, and taken to their parents’ homes. Norton stayed at his mother’s home “about 10 minutes, ... smoked a couple of joints,” and left to hitchhike to James’s trailer. Maya picked Norton up and drove him to James’s trailer.

Maya parked outside, locked the car doors, and tried to “get on top of’ Norton. Norton “started struggling to get away from him” but Maya persisted, telling Norton, “Don’t stop me.” Maya attempted to remove Norton’s pants, but Norton “pushed him away and he got back on me and wouldn’t let me go....

He was starting to breath[e] harder and he kept kissing me and I kept pushing away from him.” Maya “unsnapped” Norton’s pants and got them “half way unzipped.” Norton continued to resist, finally proposing that Maya come into James’s trailer because “I have a friend in there who’s gay and he’ll give you what you want and you don’t have to get me.” Maya hesitated but agreed.

Once inside, Norton hid behind James and said, “[‘]Steve[,] get him away from me.[’ James] looked at me and looked at him and I said, ‘He’s a queer, get him away from me,’ and [James] kicked him.” Maya fled outside into the trailer park, but James and Libberton pursued him and brought him back inside. When James and Libberton returned, Maya’s “nose was bleeding real bad.” James sat Maya down on the couch in the trailer and began to beat him. James then invited Norton to beat Maya, and Norton “hit him as hard as I could ... [i]n the jaw,” three times.

Libberton then struck Maya in the face, possibly breaking his nose, and causing more bleeding. The group continued beating and taunting Maya. Eventually, James pointed the revolver at Maya and demanded his wallet, which James then turned over to Norton. Norton removed Maya’s cash, credit cards, and identification. Libberton retrieved the title to Maya’s car from his wallet and forced Maya to sign it over. James took a small ring and a turquoise bracelet from Maya.

Libberton took Maya’s belt from a suitcase in the trunk of Maya’s car and said, “[S]eeing how I got the car and everything else signed over to my name, I’m going to wear his belt, so I’ll be Juan Maya.” After some time, James asked the group what they planned to do with Maya. Libberton suggested letting Maya go, and Norton suggested beating Maya further.

James responded, “[T]hat ain’t going to do no good, he’ll come right back.... [T]he only thing we can do is kill him.” When Libberton objected that the murder would be discovered, James replied, “there’s no way we’ll get caught because I know a perfect place to put the body.” James then described the mine outside Salome.

The group led Maya to his car, where Libberton sat in the backseat with Maya, holding him at gunpoint. “All the way [Maya] was saying, [‘]I have a wife,[’] and Steve said, [‘S]hut the fuck up, we don’t want to hear your sad stories.[’]” Norton said that the group stopped at a gas station where James purchased gas and cigarettes using one of Maya’s credit cards. Norton also said that a police officer stopped the car for speeding on the drive between the gas station and the mine. While Libberton held the revolver on Maya, James got out of the car to talk to the officer behind the vehicle.

After speaking with James, the officer sent the car on its way. James “was drunk, he was high too,” but had nonetheless talked his way out of receiving a ticket. Upon returning to the car, James said, “[S]ee Marty, all you got to do is learn how to talk to those pigs and they’ll do whatever you want.” WTien the group arrived at the mine, Norton attempted to dissuade James and Libberton from carrying out the murder, suggesting instead that the group break Maya’s legs and throw him down the shaft.

James said, “[W]e’ll have to kill him anyway. ... [Wje’ve gone too far, we have to do it.” Libberton said, “Marty[,] it will be all right, we went this far, we’re going to go all the way.” Norton stated that “I told [Maya] I’m sorry this has to happen.” Maya said, “I wish this wouldn’t happen to me either. I wish you could talk your friends out of this.” Libberton, still holding the revolver, walked Maya up a hill to the shaft. James took the revolver from Libberton, allowed Maya to finish smoking a cigarette, then directed Maya to stand next to the shaft. Maya pleaded with James, “[W]ait a minute, wait a minute.

Don’t kill me, please don’t kill me.” James fired at Maya’s upper body. According to Norton, the revolver went off but Maya was not badly hurt and began to grapple with James for the revolver. Libberton hit Maya with a rock, then with a board provided by Norton, until Maya gave up the struggle. James then shot Maya again, causing Maya to fall to the ground. James handed the gun to Norton, who cocked the hammer but did not pull the trigger, and handed the gun to Libberton.

At this point, Maya was just going uh uh breathing really hard and rapidly and [Libberton] put the gun about 10 inches from his head and pulled the trigger. [Maya] wasn’t breathing anymore. A gurgling sound started coming out. Steve didn’t know what was going on. That son of a bitch ain’t dead yet. So [James] picked up a real heavy rock, it was heavy because he barely put it up and slammed it down on [Maya’s] head. ... [T]hen [Libberton] picked up the same rock and put it on his head. Then I picked up the same rock and threw it on his head.

Once Maya was dead, James and Libber-ton dragged Maya’s body to the shaft, and Libberton threw him in. When the group returned to the car, Norton stated, “[T]hey said, [‘]Norton, you say one word to anybody, I mean anybody, even Ralph, I’ll kill you.[’] ... [Libberton] said, [T]ea, you’ll find your body right next to Juan.[’]” After giving this statement, Norton entered an undated plea agreement providing that, if he testified against James and Libberton in a manner “substantially consistent” with his December 29 statement, the state would withdraw its request to transfer Norton’s case to adult court.

Norton agreed to admit to the allegations in a juvenile petition charging him with first-degree murder, armed robbery, kidnapping, and credit card fraud. On February 3, 1982, the state withdrew its transfer request and Norton was ordered committed as a juvenile until he turned 18. See Libberton, 583 F.3d at 1156. B. Procedural History 1. Guilt Phase James was charged with first-degree murder, aggravated robbery, kidnapping, and theft. His trial began in September 1982.

At trial, James conceded that he was present when Maya was beaten at his trailer; that he drove Libberton, Maya, and Norton to the mine; that he was present when Maya was shot and beaten to death; and that he helped Libberton throw Maya’s body down the shaft. James’s defense theory was that he struck Maya only once, in self-defense, and participated in the murder only under duress exerted by Libberton, who forced him to cooperate at gunpoint. James’s counsel, Terry Pillinger, chose this strategy even though Arizona law does not permit a duress defense to homicide. See Ariz. Rev. Stat. § 13 — 412(C).

The trial court rejected Pillinger’s request for a duress instruction, but Pillinger, undeterred, argued in closing that the jury should acquit James because he acted under duress. In addition to the physical evidence, the state relied primarily on the testimony of McIntosh and Norton. McIntosh testified that James admitted the murder to him. According to McIntosh, James said that Norton had brought Maya to the trailer, accused Maya of sexually assaulting him, and asked James and Libberton to “waste” Maya.

James and Libberton “beat the hell out of [Maya] for a little while,” and James told McIntosh that he had split open a knuckle on his hand when he punched Maya in the face, breaking Maya’s nose. McIntosh testified that when James recounted breaking Maya’s nose, he “kind of laughed about it.” James then told McIntosh that the group drove to the mine, where “they went out and shot [Maya] and beat on him for a while. [James] said [Maya] was kind of hard to kill. He said [Maya] just wouldn’t die. So they were beating on him with clubs and dropping rocks on him and stuff like that.

And he still wouldn’t die, so they just kicked him off into the mine shaft ... [A]fter they threw [Maya] in the mine shaft they kicked a bunch of rocks and debris on the guy so that he would be kind of buried, and they drove away.” McIntosh testified that during the retelling, James “had a smile on his face.” Norton’s testimony conformed with his December 29 statement in all relevant respects. On direct, Parker, the prosecutor who had taken the December 29 statement, elicited the following testimony: Q: [Y]our attorney, Robert Wertsching and I and Detective Davis met with you; is that correct? A: Yes.

Q: Now, you weren’t offered any kind of plea agreement at that time, were you? A: No. Q: And I told you that I only want you to tell me the truth? A: Yes. Q: And you did talk to me at that time, did you not? A: Yes. Q: In fact you gave a statement? A: Yes. Q: And you substantially told us exactly what had happened to Juan Maya and what you told the jury again today; is that correct? A: Yes. Q: Then later, Mr. Norton, you entered into a plea agreement with the State upon the advice of your attorney; is that correct? A: Yes.

On cross, Pillinger elicited that Norton had reasons to lie, both to minimize his own culpability and to ensure treatment as a juvenile because he feared that he would be killed or sexually abused in adult custody. Pillinger also established that Norton would be released from juvenile detention when he turned 18. On redirect, Norton repeated that he gave the December 29 statement and consented to testify against James and Libberton without any plea agreement in place.

In closing, Parker argued that at the time of the December 29 statement, when Norton “talked to me with his defense attorney present [there were] no promises, nothing.” James testified in his own defense and attributed his participation in Maya’s murder to duress. James testified that after Maya fled the trailer, James pursued him into the trailer park to “find the guy and bring him back and get him out of here so we didn’t have any trouble.” James surprised Maya by approaching him from behind, prompting Maya to swing and miss at James.

James testified that he punched Maya once in self-defense, striking him in the tooth and bloodying his own knuckle. James then “helped [Maya] up because I knocked him down, and I explained to him what I wanted to do was help him get back to his car.... because we didn’t want any trouble whatsoever.” James testified that he proposed to let Maya go, but that Libberton disagreed and led Maya back to the trailer, where Libberton held him at gunpoint while Norton beat and robbed him. Libberton then suggested that Maya’s body could be concealed in the Salome mine.

James testified that Libberton “knew that my father owned some mines in Salom[e] ... because on the previous day there was a television show on, on the mines, ... and I mentioned that my father owns some mines.” James testified that he was “petrified” because Libberton was armed and because “he fights ... [djirty. He just didn’t really fight.

He just kills people.” James protested, but Libberton “told me to sit down and shut up or he would shut me up.” Libberton then “told me to get in the car and drive because I knew where the mines were.” James acknowledged that the group stopped for gas and cigarettes but testified that Norton, not he, paid. James also acknowledged that a police officer stopped the car on its way to the mine.

James testified that he was speeding in order to get caught, but that when he got out of the car, Libberton said, “Watch what you say and don’t go too far past your door.” James did not tell the police officer what was happening because the car window was open and Libberton, who was sitting in the backseat holding the gun on Maya, was within earshot. James explained that “Libberton was sitting right there with the gun where he could have very easily reached out and shot somebody.

Most likely it would have been me.” After the officer let James go, Libberton told James, “[‘D]on’t try anything like that again.[’] Because he knew I was trying to speed up in order to get pulled over.” Once the group arrived at the mine, James testified that Libberton marched Maya at gunpoint up the incline to the shaft, and that only Libberton and Norton shot and beat Maya.

James conceded that he helped drag Maya’s body into the shaft, but he said he did it because Libberton “told me if I didn’t help him to drag the man into the mine shaft he and Norton were going to throw me in the mine shaft.” After about two and a half hours of deliberations, the jury found James guilty of first-degree murder and kidnapping, but not guilty of aggravated robbery and theft. 2. New Trial Motion/Penalty Phase The court scheduled the penalty phase trial to begin just over three weeks after the verdict.

Arizona law then provided that a judge, not a jury, determined the existence of any aggravating or mitigating circumstances and decided whether to impose the death penalty. See Ariz. Rev. Stat. § 13-703(B). In Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the Supreme Court held that this procedure violated a capital defendant’s Sixth Amendment entitlement to “a jury determination of any fact on which the legislature conditions an increase in [his] maximum punishment.” Id. at 589, 122 S.Ct. 2428. However, the Ring rule does not apply retroactively. Schriro v.

Summerlin, 542 U.S. 348, 358, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004). Two days after the verdict, Pillinger submitted a four-page memorandum arguing that no statutory aggravating circumstances applied but listing several mitigating circumstances. Pillinger argued that the applicable mitigating circumstances included James’s age, see Ariz. Rev. Stat. § 13-703(G)(5); the fact that Norton testified to inflicting the fatal blow; the fact that James was under duress, see id. § 13-703(0(2); the evidence in a pretrial competency report prepared by Dr.

Maier Tuchler that James was under the influence of LSD at the time of the murder; the opinion of Dennis Watterson, James’s former probation officer, that James “had been a model probationer”; and the evidence that James did not participate in the actual killing. Pillinger either abandoned or failed to substantiate each of these mitigating circumstances at the penalty phase trial. Nine days before the penalty phase trial was to take place, Pillinger received a telephone call from Dr. Jack Potts, a psychiatrist for the Maricopa County Health Department who had treated James during his pretrial detention. Dr.

Potts told Pillinger that James had been taking lithium since March 1982 to treat what Potts had diagnosed as cyclothymia, a form of bipolar disorder. Drs. Tuchler and Merton Berger, who conducted pretrial competency examinations of James, had not been made aware of the prescription for lithium or the diagnosis. Pillinger saw this as a smoking gun.

He moved for a new trial on the ground that James’s treatment with lithium, not disclosed to Pillinger by the state, deprived James of an insanity defense; interfered with the client-counsel relationship by masking James’s otherwise psychotic mental state; tainted the competency evaluations by Drs. Tuchler and Berger; and adversely affected James’s demeanor during his trial and testimony.

The trial court granted Pillinger’s request to subpoena all of James’s pretrial treatment records from the Maricopa County Sheriffs Office and Department of Health, as well as Pillinger’s motion for fees to employ Tuchler to assist him in preparing a supplemental motion for a new trial. Pillinger’s request did not contemplate using Tuchler to prepare any mitigation evidence related to James’s mental health.

The parties stipulated that the penalty phase trial would be combined with the hearing on Pillinger’s new trial motion “[s]o that ... if a motion for new trial is not granted, the Court will be able to consider any evidence offered in these proeeedings[,] whether in support of the Motion for New Trial or in support of mitigation[,] in connection with mitigation.” The court conducted a combined new trial motion/penalty phase hearing that dealt almost exclusively with James’s treatment with lithium.

Pillinger called five witness: Jerry Ott, an “inmate classification counselor” with the Maricopa County Sheriffs Office who conducted about a dozen counseling sessions with James; Dr. Potts; Dr. Tuchler; Watterson; and James’s adoptive mother Winnie. Ott testified that James had been classified a “918” on intake. That designation meant “mentally disturbed.” Ott testified that James was a suicide risk when he was first arrested, and in fact attempted suicide by ingesting 24 aspirin, after which his stomach was pumped.

But Ott conceded that another inmate classification counselor had characterized James as “criminally sophisticated,” and Ott’s treatment notes indicate that James had “a pattern of using superficial suicide attempts to release his frustrations.” When Pillinger asked Ott what he thought of James as a person, Ott responded, “I tr[y] not to put a value on it.” In Ott’s opinion, during the course of several months of counseling, James “developed some more positive relationships with some other inmates,” and was at times “genuinely interested in making some positive changes.” James could be rehabilitated “[i]f he chose to.” James reported some history of alcohol, cocaine, and LSD use to Ott, but Ott did not ask him whether he was intoxicated at the time of the murder.

On cross, the state elicited Ott’s belief that James cultivated the role of a victim. “[R]ather than accepting responsibility for his own behavior, ... it’s other people’s fault that he is in jail.” Ott’s testimony was brief because he had a plane to catch. Based on James’s pretrial treatment records, Dr. Tuehler testified that James had been prescribed the antidepressant Tofranil, the antipsychotic Mellaril, and the antianxiety drug Librium, in addition to lithium.

Tuehler testified that he was not aware that James was undergoing psychiatric treatment or taking lithium when he conducted his competency evaluation, but stated on cross that nothing he learned from reviewing James’s records would have affected his conclusion that James was competent for trial. Tuehler confirmed that at the time of the evaluation, James stated that he had a long history of using mind-altering drugs including LSD, PCP, and marijuana, and that he had been high on LSD at the time of the murder.

In Tuchler’s opinion, James was telling the truth and LSD use “may have” compromised James’s capacity to appreciate the wrongfulness of his conduct. However, Tuehler conceded that while James may have been “under the influence of some drugs” at the time of the murder, Tuehler “could not determine whether there was an alteration of [James’s] mental state at that time. He had a good enough memory of the incidents for which he is charged.” Dr. Potts’s direct testimony covered only the possible effects of lithium on James’s demeanor during trial.

On cross, the state asked Potts whether he had diagnosed James’s mental condition, but Pillinger objected, arguing that he “didn’t have [Potts] testify as to any psychiatric determination. Only as to the drugs and the possible effects.” The court overruled Pillinger’s objection, and Potts testified that he diagnosed James with “psycholothalmic [sic] personality disorder.” Potts was likely referring to “cyclothymic” personality disorder, which the court reporter rendered phonetically.

Cyclothymia is a form of bipolar disorder characterized by chronic, fluctuating moods involving periods of hypomania and depression.

Watterson testified that in 1977, when James was 19 years old, he “was convicted of a burglary of his pastor’s residence where he broke into the pastor’s home and stole approximately $17 worth of loose change from a can.” Watterson testified that James had “difficulties at home specifically with his father,” and that he “attributed the burglary ... to rebellion against [James’s] father.” Watterson reported that James served 10 weekends in jail and was a “good” probationer who completed his four-year term of supervision without serious incident.

However, when Pillinger asked whether Watterson believed James could be rehabilitated, Watterson equivocated. “From what I have read about the offense it is a dangerous offense. [James] committed a murder. There is a kidnapping charge. I do not know about the substantive nature of what transpired during the trial. I honestly can’t say whether he is rehabilitable or not.” Finally, James’s adoptive mother Winnie gave extremely brief testimony. She explained that she and her husband Bradley adopted James when he was four and a half because “Steven had no one to take him. There was no place for him to go.

His mother had given him away.” Winnie testified that James “had been rejected many times” and “had been in other foster homes.” Once James was adopted, however, Winnie testified that his life became normal and stable. She testified that James never had fits of rage or displayed violence, never threatened or mistreated anyone, and was kind to his pets.

Asked whether James had a drug problem, Winnie testified that James “did drink beer---- Other than that I guess I was not very up on drugs, and I was not aware.” The Maricopa County Adult Probation Department prepared a Presentence Report (“PSR”) upon which the court relied in reaching its sentencing decision.

In an interview with Officer Jane Santos, who wrote the PSR, James said that “he had taken a large quantity of LSD just prior to this incident in an attempt to commit suicide,” and that “he was not fully aware of the events that occurred because of his diminished functioning as a result of the influence of LSD.” James “attributed his actions to the fact that he was on drugs when [the murder] occurred as well as the fact that he was very depressed because his girl friend had recently left him.” James stated that because of duress, drug use, and depression, “these were not normal circumstances and he was not behaving rationally under these conditions.” The PSR related that Winnie stated that James “had never demonstrated a propensity toward violent or vicious behavior.” Winnie acknowledged that she and her husband “experienced some difficulty with [James] during his adolescence, that he always seemed to ‘be in the wrong place at the wrong time.’ ” James’s adoptive father Bradley agreed that James “was not a violent person and was always afraid of gangs.” He stated that James “was under stress at the time of this incident” because James’s “wife had left him the previous year, .... [James] had been to see his biological mother in California, which had proved to be a very upsetting experience, and ... his most recent girl friend had left him just prior to this incident.” Bradley “also noted [James’s] unemployed status and the fact that he apparently had been using drugs.” The PSR related further that Jim Stepp, a childhood friend, stated that “he has never known [James] to demonstrate violence or initiate any fights.

He opined that [James’s] involvement in this offense must have been due to irrationality brought on by [James’s] excessive drug use.” Don Thorp, a cousin, stated that James “was always somewhat rebellious and refused to follow rules imposed on him by society. He noted that [James’s] father was a very strict disciplinarian who, although he obviously loved [James] tremendously, did not often demonstrate this.” Thorp attributed the murder to “immaturity as well as drug use.” The PSR presented a skeletal social history based only on information provided by James.

The PSR reported that James’s biological father “was a drug addict and was sentenced to prison when [James] was very young.... [James’s biological] mother had too many children to support, consequently she gave up custody of him and his sister to the state where they were placed up for adoption.” After a year and a half in foster care, James was adopted by Bradley and Winnie James, then in their 50s, who “provided [James] a good, stable middle class home in which he always felt loved and protected.” James stated that “he has always felt rather depressed and unhappy, with feelings of inability to cope with pressure.” As a consequence, James reported, “he has attempted suicide approximately four times, primarily through deliberate car accidents.

He also related several events during the recent past which he believes are significant. He stated that prior to this offense, he visited his natural mother for the first time, which he stated had a devastating effect on him.

He also related that his wife divorced him after only a few months of marriage and he had tried to kill himself in a car accident as a result of severe depression brought on by this incident.” James described his short-lived marriage to Marna Hulgren, which ended “due to marital conflicts caused by his excessive drug usage. [James] stated that his ex-wife used to tell him she thought he was crazy.” James described his substance abuse by admitting “frequent and excessive use of a variety of illicit substances since 1972, including LSD, PCP, heroin, [and] marijuana....

He claim[s] to have been addicted to cocaine during 1979 and 1980. He attributes his involvement in the instant offense partially to the fact that he was hallucinating and taking LSD on the night of the offense.” The PSR reported interviews with several of Maya’s relatives, all of whom recommended that James receive the death penalty because of the cruelty of the murder and the grief that it caused Maya’s family.

The PSR also related a recommendation of Detective Davis that James receive the death penalty because Maya “was killed by torture which occurred over a period of hours, ... apparently suffered pain, and ... this appears to have been a cold-blooded, cruel and senseless murder.” In

summary, the PSR concluded that James experienced disruptive and unstable circumstances until he was adopted by the James family at the age of four and a half. His acknowledged depressions and morosity in later years may be related to unresolved feelings of insecurity and/or anxiety as a result of early deprivation. He apparently received sufficient attention, love, and care from the James[es] from the age of five and they continued to be supportive of him.

There is, however, some indication that he experienced an antagonistic relationship with his father during his adolescence and his prior criminal arrest was perceived as perhaps an unconscious attempt to defy his father and his beliefs. ... [Although [James] was twenty-three years old when the instant offense occurred, he was unemployed at the time and financially supported primarily by his parents, indicating that he had not yet learned to be responsible for himself or to rely on his own initiative to become independent of his parents.

This may have contributed to feelings of inadequacy, powerlessness, anger, and depression....

It also seems reasonable that a great deal of peer pressure was involved in the commission of these offenses, but [James’s] claim of having been threatened with death by the codefendants for refusal to participate seems questionable.... [I]t was [James] who chased [Maya] after he ran from the trailer and brought [Maya] back to the others, it was[James’s] gun which was used to coerce [Maya], it was [James] who drove [Maya’s] vehicle and provided a place to dispose of the body, and, by his own omission, it was [James] who dragged [Maya’s] body into the mine shaft. [James’s] culpability in the execution of this offense seems primary.

The PSR recommended a death sentence. One week after the evidentiary hearing, the trial court heard argument on and denied Pillinger’s motion for a new trial. It then heard argument on the sentence. Pillinger jettisoned most of the arguments he had made in his pre-hearing memorandum and urged the court to find only two mitigating circumstances. Pillinger relied on the statutory mitigating circumstance that James’s “capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired,” Ariz. Rev.

Stat. § 13 — 703(G)(1), and the non-statutory mitigating circumstance that James could be rehabilitated, id. § 13-703(G). With respect to diminished capacity, Pillinger relied entirely on Dr. Tuchler’s testimony that James had reported LSD use before the murder.

With respect to rehabilitation, which Pillinger billed as “most important,” Pillinger argued that Watterson had described James as rehabilitable and that Ott had referred to James’s progress “in his appreciation of himself and his role in society.” In response, the state correctly pointed out that “there was no testimony by any of the investigating officers that [James] appeared to be under any kind of drugs ... other than his own statement that he either had used POP or LSD.” The state also correctly pointed out that Pillinger had misrepresented Watterson’s testimony: Watterson had expressed no opinion on James’s prospects for rehabilitation.

Pillinger conceded his mistake and abandoned that mitigating circumstance. The trial court sentenced James to death. The court found two aggravating circumstances: James “committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value,” Ariz. Rev. Stat. § 13-703(F)(5); and James “committed the offense in an especially heinous, cruel, or depraved manner,” id. § 13-703(F)(6).

The court found that the state had established the pecuniary gain aggravating circumstance because James participated in stealing Maya’s wallet and car, and in using Maya’s credit card to buy gas and cigarettes, and in attempting to obtain a cash advance. The court found the “heinous, cruel, or depraved” aggravating circumstance established because the victim in this case suffered prolonged and excruciating mental, physical and psychological pain and distress, and that such pain and distress were inflicted deliberately and sadistically.

Several hours passed between the time [James] and his co-murderers formed the intent to kill the victim and the time that they did kill him. During this time the victim was viciously beaten all over his body, including his head, face and groin. He was taunted and his murder was openly and blithely discussed in his presence. Early in the evening, he attempted escape, and was caught by [James] and returned to [James’s] home. His repeated pleas to be released in return for all his valuables were rejected. He was robbed of all possessions he had with him. He was held at gunpoint for hours.

He was kidnapped and spent hours traveling to the scene of his death in his own automobile. After finally arriving at the scene of his murder in a remote, isolated desert area, he was shot, causing his clothing to catch on fire. He was then viciously beaten with fists, boards and rocks until finally he expired. The evidence shows that he had been beaten beyond recognition pri- or to his death. In short, the murder was committed in an especially cruel manner.... [T]his was a totally senseless murder.

Even if the events of the evening began as the perpetrators now claim, there was no reason for the killing other than the perpetrators’ greed and their arrogation to themselves of the role of executioners to those whose sexual preferences they purport to decry. [James] carried out this murder in a depraved manner, indicating a total disregard of even minimal feelings of compassion for a fellow human being. The manner in which the killing was accomplished has already been detailed.

Following the killing, [James] bragged about his role in it and of the difficulty he and the others had in finally making Juan Maya die. [James’s] statements evidence no compassion or remorse and indicate he felt he was justified in killing someone whom he believed to be different than himself. The mode of disposing of the body itself demonstrates a certain callousness and depravity and disregard for the victim’s family who might never have learned of the fate of Juan Maya, but for the later brazenness of [James] and his co-murderers.

The court rejected diminished capacity as a mitigating circumstance, finding that “[wjhile [James] later made a self-serving statement that he had drugs the night of the murder, the evidence is clear that his capacity was not impaired.” Because the court found “no mitigating circumstances sufficiently substantial to call for leniency,” Arizona law required the imposition of a death sentence. Ariz. Rev. Stat. § 13-703(E); see also, e.g., Robinson v. Schriro, 595 F.3d 1086, 1094 (9th Cir.), cert. denied, — U.S. -, 131 S.Ct. 566, 178 L.Ed.2d 427 (2010). 3.

Direct Appeal On direct appeal, the Arizona Supreme Court affirmed. See Ariz. Rev. Stat. § 13-4031. As pertinent here, the court struck the pecuniary gain aggravating circumstance because the jury had acquitted James of aggravated robbery and theft. James, 685 P.2d at 1298. However, the court affirmed the heinous, cruel, or depraved aggravating circumstance, quoting the trial court’s factual findings and summarily stating that they were “correct.” Id. at 1299.

The court rejected the argument that James proved diminished capacity due to LSD intoxication, concluding that “[t]he evidence of drug ingestion was unrefuted but it was uncorroborated. The record reveals that James’ capacity on the night of the crime was not impaired.” Id. at 1300. The United States Supreme Court denied certiorari. James v. Arizona, 469 U.S. 990, 105 S.Ct. 398, 83 L.Ed.2d 332 (1984). 4. State Postconviction and Federal Habeas James filed numerous postconviction petitions. We discuss them only to the extent that they pertain to the claims now before us.

In his first Petition for Post-conviction Relief (“PCR”), filed in 1985, James argued that Pillinger provided ineffective assistance by failing adequately to investigate and present evidence of James’s LSD intoxication at the time of the murder, and by failing to interview witnesses who could have testified to James’s potential for rehabilitation. The Maricopa County Superior Court dismissed the claim as procedurally barred and denied James’s request for an evidentiary hearing. The court cited Ariz. R.Crim.

P. 32.2(a)(3), which at the time provided that relief could not be granted on any claim “[k]nowingly, voluntarily and intelligently not raised at trial, on appeal, or in any previous collateral proceeding.” See also Ariz. Rev. Stat. § 13-4232(A)(3). The Arizona Supreme Court denied review. In his second PCR, filed in 1991, James did not present an ineffective assistance of counsel claim as a freestanding basis for relief. However, in an attempt to circumvent the procedural bars to relief on claims finally adjudicated in a prior proceeding, Ariz. Rev. Stat. § 13~4232(A)(2); Ariz. R.Crim.

P. 32.2(a)(2), or not raised in a prior proceeding, Ariz. Rev. Stat. § 13-4232(A)(3); Ariz. R.Crim. P. 32.2(a)(3), James argued that his trial, appellate, and first PCR counsel were all ineffective. The Maricopa County Superior Court dismissed the petition, finding that “no facts have been presented which would rise to the level of a colorable [ineffective assistance of counsel] claim.... Additionally, the issue of ineffective assistance of counsel at the trial level and on appeal and in the first petition for post-conviction relief was presented in the first petition for post-conviction relief.

This court is precluded from granting relief on this issue now.” The Arizona Supreme Court denied review. The United States Supreme Court denied certiorari. James v. Arizona, 507 U.S. 928, 113 S.Ct. 1304, 122 L.Ed.2d 693 (1993). James filed a federal habeas petition in 1993. Based on the Wertsching affidavit, see supra pp. 789-90, James raised claims under Brady, Giglio, and Napue. The district court dismissed James’s habeas petition without prejudice so that he could exhaust his state remedies on this claim.

James therefore filed a third PCR in state court in 1995, in which he raised several claims — including the three claims now before us. The Maricopa County Superior Court denied relief and again denied James’s request for an evidentiary hearing. With respect to the Brady/Giglio claim, the court assumed that Wertsching’s affidavit was true and that the state had entered a “secret agreement” to treat Norton as a juvenile before Norton gave his December 29 statement. The court denied relief on the rationale that any nondisclosure was not material.

See Giglio, 405 U.S. at 154, 92 S.Ct. 763; Brady, 373 U.S. at 87, 83 S.Ct. 1194. Referring to Norton’s November 19 statement to Detective Davis and his November 26 statement to Detective Hackworth, the court wrote, “Prior to the time there was any agreement, Norton had already made statements to the police that incriminated [James]. These statements were made before he was represented by counsel. Therefore, his motive [to testify] was not based on the agreement....

Although the statements [Norton] made while being interrogated by the police were not necessarily consistent, the statements either implicated or connected [James] with the murder or were statements where Norton denied having knowledge of how the crime occurred.” Moreover, ■ the court determined that “[t]he existence of the agreement has little impeachment value. The defense had a copy of the plea agreement that was signed after Norton gave his statement to the prosecutor. The agreement was introduced in evidence. Norton was cross-examined about the plea agreement.

He was questioned about prior inconsistent statements. The jury knew Norton had a motive to cooperate with authorities.” Because of the “overwhelming evidence” of James’s guilt — including McIntosh’s testimony that James bragged about the murder and James’s role in driving the group to the mine — as well as the jury’s rejection of James’s duress defense, “[t]he outcome of the trial would not have been affected by, knowledge of Norton’s agreement.” With respect to the Napue claim, the court reached the identical conclusion— that any false testimony about the agreement was not material.

See Napue, 360 U.S. at 271, 79 S.Ct. 1173. Even assuming the existence of a “secret agreement,” there was no reasonable likelihood that the false testimony affected the verdict or sentence due to “overwhelming independent evidence of [James’s] guilt, including his confession to McIntosh and his own incredible testimony. Additionally, ... the jury had substantial reason to question Norton’s motives even without knowledge of the alleged agreement.” The court also determined that James’s ineffective assistance of counsel claim remained procedurally barred.

The first PCR court had held James’s ineffective assistance claim precluded because James could have raised it on direct appeal. See Ariz. R.Crim. P. 32.2(a)(3). The third PCR court explained that “[t]o the extent that the claims were precluded in the first petition, they were precluded in the second, and are precluded now in the third petition.... Those issues were and are precluded under Rule 32.2(a)(3). That is the law of the case.” The court then added an alternative procedural bar.

Rule 32.2(a)(3) prevented consideration of James’s ineffective assistance of counsel claim because James “waived any such argument by failing to cite in his second petition specific errors of counsel and he failed to indicate how he was actually prejudiced by any alleged errors.... [James] could have raised his claims in the second petition, but failed to do so.” Finally, after addressing each of James’s claims in detail, the third PCR court in a paragraph at the end of its opinion found that “[a]s to the entire petition ... there are no genuine or material issues of fact or law that are in dispute that would entitle [James] to an evidentiary hearing.

No colorable claims have been made.” The Arizona Supreme Court denied James’s petition for review in a

summary order. James filed this federal habeas petition in 2000. He raised 33 claims for relief and expanded the record by presenting 82 exhibits, most of them related to his claim that Pillinger provided ineffective assistance at the penalty phase by failing to investigate and present mitigating evidence. See Rule 7 of the Rules Governing § 2254 Cases. James also sought an evidentiary hearing. Without conducting a hearing, the district court denied relief and denied a subsequent motion to amend the judgment. See Fed.R.Civ.P. 59(e).

The court granted a certificate of appealability on the three claims now before us, and James appealed. II. Standard of Review We review the denial of a habeas petition de novo. Stanley v. Schriro, 598 F.3d 612, 617 (9th Cir.2010). We review denials of evidentiary hearing requests and Rule 59(

e) motions for an abuse of discretion. Id.; Duarte v. Bardales, 526 F.3d 563, 567 (9th Cir.2008). Because James filed this habeas petition after April 24, 1996, the Antiterrorism and Effective Death Penalty Act (“AEDPA”) applies. Lindh v. Murphy, 521 U.S. 320, 326-27, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).

We may not grant habeas relief with respect to any claim that was adjudicated on the merits by the Arizona courts unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). Because the Arizona Supreme Court denied review in a

summary order, we “ ‘look through’ that opinion to the last reasoned decision” on James’s current federal claims, that of the Superior Court denying James’s third PCR. Hurles v. Ryan, 650 F.3d 1301, 1311 (9th Cir.2011) (quoting Ylst v. Nunnemaker, 501 U.S. 797, 806, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991)). The third PCR court rejected James’s Brady/Giglio and Napue claims on the merits, so § 2254(

d) circumscribes our review of those claims.

Section 2254(

d) imposes a standard that is “difficult to meet.” Harrington v. Richter, — U.S. -, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011). “It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with [Supreme Court] precedents,” but “goes no farther.” Id.

Consequently, “[a]s a condition for obtaining habeas corpus from a federal court,” James must show that the third PCR court’s rejection of his Brady/Giglio and Napue claims was “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 131 S.Ct. at 786-87. However, the third PCR court relied on a procedural bar to dismiss James’s ineffective assistance of counsel claim. That claim was not “adjudicated on the merits in State court proceedings,” and 28 U.S.C. § 2254(

d) therefore does not apply. Where a state court does not reach the merits of a federal claim, but instead relies on a procedural bar later held inadequate to foreclose federal habeas review, we review de novo. See Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir.2002); see also Cone v.

Bell, 556 U.S. 449, 129 S.Ct. 1769, 1784, 173 L.Ed.2d 701 (2009) (where state court relies on inadequate procedural bar and does not address merits, “federal habeas review is not subject to the deferential standard that applies under AEDPA to ‘any claim that was adjudicated on the merits in State court proceedings.’ Instead, the claim is reviewed de novo.” (quoting 28 U.S.C. § 2254(d)). The state has long agreed that the third PCR court dismissed James’s ineffective assistance of counsel claim as procedurally barred.

However, in a petition for rehearing before this court, the state argued — for the first time — that the third PCR court “also” rejected the claim on the merits in a paragraph at the end of its opinion. We quoted from that paragraph above. The state contends that this paragraph is an “alternative ruling on the merits” by the third PCR court. If this were so, the state court’s ruling on this claim would be subject to deferential review under AEDPA. See Stephens v.

Branker, 570 F.3d 198, 208 (4th Cir.2009) (“[W]e agree with our sister circuits that an alternative merits determination to a procedural bar ruling is entitled to AEDPA deference.”). The state’s late-raised argument is easily resolved. Beginning with its opposition to James’s petition for review in 1999, the state has consistently maintained that the third PCR court denied James’s ineffective assistance claim on procedural grounds alone. The state similarly characterized the third PCR court’s decision in its opposition to James’s federal habeas petition in 2001.

The district court reviewed James’s ineffective assistance of counsel claim de novo because it found that the third PCR court relied on an inadequate procedural bar and “did not pass on the merits” of the claim. Notably, the state did not contest this aspect of the district court’s holding and did not raise this issue in its original brief before this court. Moreover, this court at the outset of oral argument asserted its understanding that the third PCR court had denied James’s ineffective assistance of counsel claim on procedural grounds and not on the merits.

Counsel for the state did not object to this understanding during oral argument and never suggested that the third PCR court in fact ruled on the merits of the claim. As a result, the state has waived any contention that the third PCR court adjudicated the merits of James’s ineffective assistance of counsel claim. See Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir.2009); Butler v. Curry, 528 F.3d 624, 642 (9th Cir.2008). Even if the issue were not waived, the state’s argument would fail.

As our sister circuits have held, where a state court primarily relies on a procedural bar to deny a habeas claim, it only receives AEDPA deference for an alternative holding that actually reaches and resolves the merits of the claim. See Stephens, 570 F.3d at 206, 208; Bell v. Miller, 500 F.3d 149, 155 (2d Cir.2007) (withholding AED-PA deference from a state court’s contingent observation that “if the merits were reached, the result would be the same”). For example, in Brooks v.

Bagley, 513 F.3d 618, 624-25 (6th Cir.2008), the Sixth Circuit extended AEDPA deference to a state court’s alternative ruling that specifically addressed the merits of the petitioner’s ineffective assistance of counsel claim and held that the petitioner had failed to satisfy either prong of Strickland. See State v. Brooks, No. 73729, 1999 WL 401655, at *6-7 (Ohio Ct.App. June 17, 1999). Here, in contrast, the third PCR court never discussed or analyzed the merits of James’s ineffective assistance of counsel claim.

In its 38-page opinion, the court examined each of the claims raised in James’s third PCR under a separate heading and explained in detail why it denied each claim. The court denied most of the claims — including James’s Brady/Giglio and Napue claims — on their merits alone, and two alternatively on their merits and procedural grounds. However, unlike with every other claim that it considered, the court never discussed the merits of James’s ineffective assistance of counsel claim. Instead, it relied solely on procedural grounds to deny the claim.

A comparison of the court’s discussion of this claim with its discussion of the others leaves little doubt that it denied the claim as procedurally barred without adjudicating the merits. The state points to the concluding paragraph at the end of the third PCR court’s opinion as a purported alternative merits ruling. However, this paragraph did not present any “alternative” bases for the court’s prior rulings; the court had already provided detailed reasons why it denied each claim.

In its merits analysis of the first three claims, the third PCR court had noted that James failed to present colorable claims warranting an evidentiary hearing. However, the court did not discuss the possibility of further evidentiary development when it subsequently denied several other claims on the merits. Viewed properly in this context, the concluding paragraph simply clarified that no evidentiary hearing was necessary for any of the claims that the third PCR court had reviewed on the merits.

Under Richter, 131 S.Ct. at 784, a state court decision need not articulate the precise reasons for denying relief in order to qualify as an adjudication on the merits under AEDPA. However, Richter expressly limited its holding to instances where the state court “did not say it was denying the claim for any other reason.” Id. The Supreme Court explained: When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary ....

The presumption may be overcome when there is reason to think some other explanation for the state court’s decision is more likely. Id. at 784-85 (emphasis added). Here, the third PCR court expressly stated that it denied James’s ineffective assistance of counsel claim as procedurally barred. As a result, we need not presume that the brief paragraph at the end of its opinion somehow adjudicated the claim on the merits. In sum, we find that the third PCR court denied James’s ineffective assistance of counsel claim as procedurally barred without adjudicating the merits.

Because we find the state procedural bar inadequate to foreclose federal review, we review de novo. The third PCR court’s reliance on a procedural bar to dismiss James’s ineffective assistance of counsel claim without reaching the merits has an additional consequence. James is not subject to the rule announced in Cullen v. Pinholster that “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits — U.S. -, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011).

Pinholster acknowledged that a habeas petitioner who raises a claim that was not adjudicated on the merits in state court, and is therefore not subject to § 2254(d), may present new evidence in federal court, as long as he satisfies the requirements of § 2254(e).

See 131 S.Ct. at 1401 (“[N]ot all federal habeas claims by state prisoners fall within the scope of § 2254(d), which applies only to claims ‘adjudicated on the merits in State court proceedings.’ At a minimum, therefore, § 2254(e)(2) still restricts the discretion of federal habeas courts to consider new evidence when deciding claims that were not adjudicated on the merits in state court.”). Because Pinholster does not apply, we may consider the new evidence developed by James’s federal habeas counsel and presented to the district court, pursuant to his habeas petition and Rule 59(

e) motion, in determining whether Pillinger provided ineffective assistance. At oral argument, counsel for the state argued — again for the first time in nearly 11 years of federal court litigation — that even if James’s ineffective assistance of counsel claim was not “adjudicated on the merits in State court proceedings,” 28 U.S.C. § 2254(d), de novo review is nonetheless inappropriate. The state’s argument was less than pellucid, but counsel appeared to contend that even if § 2254(

d) does not apply, we may not grant habeas relief on the basis of evidence not presented to the state court unless that evidence “would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” Id. § 2254(e)(2)(B). Counsel suggested that we apply a “Jackson [v.

Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979),]” standard and deny relief unless the evidence that James presented for the first time on federal habeas was so persuasive that no reasonable sentencer presented with that evidence during the penalty phase could have sentenced James to death. Once again, the state’s late-raised argument is easily resolved. When a party raises a distinct argument for the first time at oral argument before us, not having briefed it at all, we normally consider that argument waived. See Clem, 566 F.3d at 1182; Butler, 528 F.3d at 642.

Even if we were to consider the state’s argument on the merits, we would reject it.

Section 2254(e)(2)(B), the only authority cited for the state’s position, “imposes a limitation on the discretion of federal habeas courts to take new evidence in an evidentiary hearing.” Pinholster, 131 S.Ct. at 1400-01. It applies by its terms only to a federal habeas petitioner who “has failed to develop the factual basis of a claim in State court.” But “a failure to develop the factual basis of a claim is not established unless there is a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.” Williams v.

Taylor (Michael Williams), 529 U.S. 420, 432, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). At oral argument, the state conceded that James was diligent, as it had to. By requesting evidentiary hearings on his ineffective assistance of counsel claim before the first and third PCR courts, James demonstrated the necessary diligence. Id. at 437, 120 S.Ct. 1479; Stanley, 598 F.3d at 624 & n. 8; Estrada v. Scribner, 512 F.3d 1227, 1235 n. 7 (9th Cir.2008).

Finally, the state’s position contradicts clear Supreme Court authority indicating that when a state court “d[oes] not reach the merits” of a federal claim, “federal habeas review is not subject to the deferential standard that applies under AED-PA.... Instead, the claim is reviewed de novo.” Cone, 129 S.Ct. at 1784; see Porter v. McCollum, — U.S. -, 130 S.Ct. 447, 452, 175 L.Ed.2d 398 (2009); Rompilla v. Beard, 545 U.S. 374, 390, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005). III. Discussion A.

Brady/Giglio and Napue Claims James’s Brady/Giglio and Napue claims fail for the reasons we previously articulated in Libberton’s case. Libberton, 583 F.3d at 1162-64. In his federal habeas petition, Libberton presented factually and legally identical Brady/Giglio and Napue claims based on the state’s “secret agreement” with Norton. Libberton relied on the Wertsching affidavit procured by James’s habeas counsel to substantiate these claims. Id. at 1158—59, 1162-64. The same police reports recording Norton’s statements were provided to James and Libberton.

Norton’s trial testimony, including his responses to Parker’s questions regarding a plea agreement, was the same in all relevant respects. In both eases, the same prosecutor, Parker, told the jury that no deal preceded Norton’s December 29 statement. James and Libberton both rely on the Wertsching affidavit to prove the existence of the oral plea agreement.

Finally, the state postconviction courts in both cases adopted the same materiality rationale: assuming the existence of an oral plea agreement, neither nondisclosure of nor the state’s acquiescence in Norton’s false testimony was material because Norton’s testimony could have been corroborated by his November 26 statement to Hackworth, which preceded any plea agreement. Moreover, Norton was adequately impeached with evidence of the plea agreement that was disclosed. Finally, AEDPA’s deferential standard of review applied to Libberton’s claims, as it does to James’s.

We have already rejected Libberton’s claims in a published opinion. Id. at 1162-64. With respect to the Brady/Giglio claim, we agreed with the state court’s conclusion that “the agreement, if it existed, was not material.” Id. at 1162. We wrote: Unlike in Giglio, the key witness in this ease, Norton, had already given a deeply incriminating statement to Detective Hackworth before the alleged deal was entered into. Therefore, the government could have pointed to a statement untainted by any secret deal, if such a deal existed, in order to corroborate Norton’s trial testimony.

Unlike in Giglio, where the jury was unaware of any deal with prosecutors, the jury in Libberton’s case was well aware that Norton had reached a plea agreement with prosecutors whereby he agreed to testify in exchange for being prosecuted as a minor. The question is not whether Norton made a deal with prosecutors, but only when he did so. Given the availability of Norton’s earlier statement to Hackworth as corroboration of his trial testimony, it is unlikely that the jury would have reached a different conclusion as to Libberton’s guilt even if it had known of the alleged oral agreement.

Id. at 1163-64 (emphasis in original). We reached a similar conclusion with respect to the Napue claim: While the precise materiality standard under- Napue is slightly different than under Giglio, the result in this case is the same. Instead of asking whether there was a “reasonable probability” of a different outcome, a Napue violation requires a court to ask whether there is “any reasonable likelihood that the false testimony could have affected the judgment of the jury.” Hayes v. Brown, 399 F.3d 972, 985 (9th Cir.2005) (en banc).

For the reasons explained above, we conclude under AEDPA that Libberton’s Napue argument does not succeed. Id. at 1164. James has not identified any distinction between his case and Libber-ton’s, nor do we see one. Consequently, we reach the same conclusion as the Libberton panel. The third PCR court did not unreasonably apply Brady, Giglio, or Napue by determining that, even if a secret agreement existed, neither the state’s failure to disclose the agreement nor its failure to correct Norton’s false testimony denying the existence of such an agreement was material. B. Ineffective Assistance of Counsel 1.

Procedural Default Before we turn to the merits of James’s claim of ineffective assistance of counsel, we consider the state’s argument that the claim is proeedurally defaulted. A state prisoner proeedurally defaults a claim, and federal habeas review is barred, “when a state court decline[s] to address a prisoner’s federal claims because the prisoner ha[s] failed to meet a state procedural requirement. In these cases, the state judgment rests on independent and adequate state procedural grounds.” Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (citing Wainwright v.

Sykes, 433 U.S. 72, 81, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). To qualify as an adequate procedural ground, a state rule must be “firmly established and regularly followed,” though a “discretionary state procedural rule” may satisfy this standard. Walker v. Martin, — U.S. -, 131 S.Ct. 1120, 1127, 179 L.Ed.2d 62 (2011) (quoting Beard v. Kindler, — U.S. -, 130 S.Ct. 612, 617, 175 L.Ed.2d 417 (2009)). “[0]nly a ‘firmly established and regularly followed state practice’ may be interposed by a State to prevent subsequent review ... of a federal constitutional claim.” Ford v.

Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991) (quoting James v. Kentucky, 466 U.S. 341, 348, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984)). Relying on Lambright v. Stewart, 241 F.3d 1201, 1203-04 (9th Cir.2001), the district court concluded that there had been no procedural default because “[a]t the time of [James’s] alleged default, Arizona did not have a firmly established procedural rule precluding as waived [ineffective assistance of counsel] claims asserted in a PCR petition filed after the conclusion of the direct appeal.” We agree.

In Lambright, which is directly on point, we concluded that in 1985, when James filed his first PCR, there was no firmly established rule requiring a defendant to raise on direct appeal an ineffective assistance of counsel claim that relied on extra-record evidence. 241 F.3d at 1203-04. To the contrary, we concluded that Arizona law then prohibited defendants from raising on direct appeal claims based on extra-record evidence, and mandated instead that defendants raise such claims in PCRs. Id.

In Lambright, the habeas petitioner claimed in his first PCR that trial counsel “failed to investigate or present evidence of his mental disability and social history.” Id. at 1204. Because of the nature of this ineffective assistance claim, “neither the evidence of counsel’s deficiencies nor of the prejudice caused therefrom appeared in the trial record.” Id. We therefore held that [s]ince [the petitioner’s] ineffective assistance of counsel claim required factual development, Rule 32.2 did not clearly require that he raise it on appeal.

In fact, Arizona’s procedural rules required that he wait until state postconviction proceedings to raise it. Thus, the procedural default in this case is inadequate to bar federal review. Id.

The state points to the alternative ruling of the third PCR court that James waived his ineffective assistance of counsel claim “by failing to cite in his second [PCR] specific errors of counsel and he failed to indicate how he was actually prejudiced by any alleged errors.... [James] could have raised his claims in the second [PCR], but failed to do so.” The state’s position, like that of the third PCR court, is self-contradictory. The first PCR court determined that James’s ineffective assistance of counsel claim was “clearly precluded” by Rule 32.2(a)(3).

The second PCR court stated that because James’s ineffective assistance of counsel claim “was presented in the first petition for post-conviction relief,” it was “precluded from granting relief on this issue now.” The third PCR court agreed that this finding of preclusion constituted “the law of the case.” Preclusion and waiver are mutually exclusive procedural bars. See, e.g., Cone, 129 S.Ct. at 1781 (describing preclusion and waiver as “contradictory” grounds for barring state postconviction review of a federal claim); Lambright, 241 F.3d at 1205 (same); Ceja v.

Stewart, 97 F.3d 1246, 1252-53 (9th Cir.1996) (noting that preclusion and waiver are inconsistent). A claim cannot be waived if it cannot be raised, and a precluded claim cannot be raised. The first PCR court determined that because James had failed to advance any ineffective assistance of counsel claim on direct appeal, Rule 32.2(a)(3) prevented any posteonviction court from granting relief. The second and third PCR courts determined that James was precluded from raising such a claim, because it had been decided in the first PCR petition.

James cannot now be charged with having waived in his second PCR a claim that had already been resolved against him, on procedural grounds, in the first. 2. Deficient Performance To establish that counsel provided constitutionally ineffective assistance, a defendant must demonstrate both deficient performance and prejudice. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. To establish deficient performance, a defendant must show that “counsel’s representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052.

A court considering a claim of ineffective assistance must apply a “strong presumption” that counsel’s representation was within the “wide range” of reasonable professional assistance. Id. at 689, 104 S.Ct. 2052. The defendant bears the burden of showing “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687, 104 S.Ct. 2052. The district court concluded, and the state does not dispute, that Pillinger’s performance was “clearly deficient.” We agree.

Pillinger’s performance fell far below prevailing professional norms applicable to capital defense counsel in 1982. First, Pillinger failed to conduct even the most basic investigation of James’s social history. It is “unquestioned” that counsel in a capital case has an “obligation to conduct a thorough investigation of the defendant’s background.” Porter, 130 S.Ct. at 452 (quoting Williams v. Taylor (

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