Joseph Smith v. Renee Baker ( 2020 )


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  •                       FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    JOSEPH WELDON SMITH,                                 No. 14-99003
    Petitioner-Appellant,
    D.C. No.
    v.                            2:07-cv-00318-
    JCM-CWH
    RENEE BAKER, Warden; AARON D.
    FORD,* Attorney General of the State
    of Nevada,                                             OPINION
    Respondents-Appellees.
    Appeal from the United States District Court
    for the District of Nevada
    James C. Mahan, District Judge, Presiding
    Argued and Submitted July 11, 2019
    Seattle, Washington
    Filed May 21, 2020
    Before: N. Randy Smith, Mary H. Murguia, and
    Morgan Christen, Circuit Judges.
    Opinion by Judge Christen;
    Concurrence by Judge N.R. Smith
    *
    Aaron D. Ford is substituted for his predecessor, Adam Paul Laxalt,
    as Nevada Attorney General, pursuant to Fed. R. App. P. 43(c)(2).
    2                          SMITH V. BAKER
    SUMMARY**
    Habeas Corpus/Death Penalty
    The panel affirmed the district court’s judgment
    dismissing Joseph Weldon Smith’s habeas corpus petition
    challenging his Nevada convictions for three murders and one
    attempted murder, and his death sentence for one of the
    murders.
    The district court issued a certificate of appealability for
    Smith’s argument that the procedural default of his
    ineffective-of-assistance-of-counsel claim should be excused
    pursuant to Martinez v. Ryan, 
    566 U.S. 1
     (2012). The panel
    held that Smith did not show that he was prejudiced by the
    lack of an evidentiary hearing, and that the district court did
    not abuse its discretion by dismissing the Martinez claim
    without holding one. Applying Martinez and Strickland v.
    Washington, 
    466 U.S. 668
     (1984), the panel held that Smith
    satisfied his burden of demonstrating a substantial argument
    that the performance of his second penalty-phase counsel was
    deficient for failing to investigate mental health mitigation
    evidence, but that Smith did not show that he was prejudiced
    by counsel’s deficient performance.
    The panel certified for appeal Smith’s claim that the death
    verdict violated Stromberg v. California, 
    283 U.S. 359
    (1931). The panel held that Smith demonstrated Stromberg
    error because it was impossible to tell whether the jury
    unanimously found mutilation, which was the sole basis to
    **
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    SMITH V. BAKER                        3
    support the death verdict after the Nevada Supreme Court
    invalidated the trial court’s depravity-of-mind jury
    instruction. The panel concluded that the error was harmless
    because the invalid instruction did not have a substantial and
    injurious effect on the jury’s verdict.
    The panel declined to certify Smith’s remaining
    uncertified claims.
    Concurring, Judge N.R. Smith would affirm the dismissal
    of Smith’s ineffective-assistance-of-counsel claim as
    procedurally barred on a different ground—that counsel’s
    performance during the second penalty-phase hearing was not
    deficient, and that the claim is therefore insubstantial.
    COUNSEL
    Robert Fitzgerald (argued), David Anthony, Heather Fraley,
    and Brad D. Levenson, Assistant Federal Public Defenders;
    Rene L. Valladares, Federal Public Defender; Office of the
    Federal Public Defender, Las Vegas, Nevada, for Petitioner-
    Appellant.
    Jeffrey Morgan Conner (argued), Deputy Assistant Attorney
    General; Victor-Hugo Schulze II, Senior Deputy Attorney
    General; Heidi Parry Stern, Chief Deputy Attorney General;
    Office of the Attorney General, Las Vegas, Nevada; for
    Respondents-Appellees.
    4                      SMITH V. BAKER
    OPINION
    CHRISTEN, Circuit Judge:
    In 1992, a Nevada jury convicted Joseph Weldon Smith
    of three counts of first degree murder with use of a deadly
    weapon for beating and strangling his wife, Judith Smith, and
    his step-daughters, Wendy Jean Cox and Kristy Cox. The
    women were killed in a home the Smiths were renting in
    Henderson, Nevada. The jury also convicted Smith of
    attempting to murder Frank Allen with use of a deadly
    weapon. Allen owned the home the Cox family was renting.
    For Wendy’s and Kristy’s murders, Smith was sentenced to
    death. For Judith’s murder, he was sentenced to life in prison
    without the possibility of parole.
    Smith appealed his convictions and sentences. The
    Nevada Supreme Court affirmed the convictions, but it
    vacated the death sentences and remanded for a new penalty
    hearing. See Smith v. State, 
    881 P.2d 649
     (Nev. 1994) (Smith
    I). After a second penalty hearing, Smith was again
    sentenced to death for Wendy’s and Kristy’s murders. On
    appeal, the Nevada Supreme Court vacated the death sentence
    for Kristy’s murder and instead imposed a sentence of life
    without the possibility of parole, but it affirmed the death
    penalty for Wendy’s murder. See Smith v. State, 
    953 P.2d 264
     (Nev. 1998) (Smith II).
    Smith filed a pro per habeas petition in state district court,
    which was denied, and the Nevada Supreme Court affirmed
    that ruling in an unpublished order. Smith then filed a pro
    per habeas petition in federal district court. That court
    appointed counsel for Smith and stayed the federal
    proceedings so Smith could return to state court to exhaust
    SMITH V. BAKER                         5
    certain claims. The state district court denied Smith’s second
    state habeas petition on procedural default grounds, and the
    Nevada Supreme Court affirmed that decision. Smith then
    returned to federal court, where the State’s motion to dismiss
    was granted in part and denied in part. The federal district
    court later denied the remainder of Smith’s petition but issued
    a certificate of appealability for his argument that the
    procedural default of his ineffective assistance of counsel
    (IAC) claim should be excused pursuant to Martinez v. Ryan,
    
    566 U.S. 1
     (2012). Smith appeals the denial of his federal
    habeas petition.
    We affirm the district court’s judgment dismissing
    Smith’s IAC claim as procedurally barred. Although we
    conclude that his counsel’s performance at the second
    penalty-phase hearing was deficient, Smith has not shown
    that he was prejudiced by his counsel’s performance. Smith’s
    IAC claim therefore remains procedurally defaulted, and
    cannot serve as a basis for federal habeas relief.
    Smith also asserts nine uncertified claims on appeal. We
    may issue a certificate of appealability when a petitioner
    shows “that reasonable jurists could debate whether . . . the
    petition should have been resolved in a different manner or
    that the issues presented were ‘adequate to deserve
    encouragement to proceed further.’” Miller-El v. Cockrell,
    
    537 U.S. 322
    , 336 (2003) (quoting Slack v. McDaniel,
    
    529 U.S. 473
    , 484 (2000)). We certify Smith’s eighth claim,
    which alleges violation of the rule set out in Stromberg v.
    California, 
    283 U.S. 359
     (1931), but we ultimately conclude
    that this claim does not entitle Smith to habeas relief because
    the Stromberg error was harmless. The remaining uncertified
    claims do not raise substantial questions of law. We decline
    to certify them because we are not persuaded that “reasonable
    6                     SMITH V. BAKER
    jurists would find the district court’s assessment of the
    constitutional claims debatable or wrong.” Miller-El,
    
    537 U.S. at 338
     (quoting Slack, 
    529 U.S. at 484
    ). We
    therefore affirm the district court’s order dismissing Smith’s
    federal habeas petition.
    I. Factual Background
    The facts relating to the murders and to Smith’s first trial
    and penalty-phase hearing were recounted by the Nevada
    Supreme Court in Smith I, as follows:
    During the trial Michael Hull, a police officer
    for the City of Henderson, testified as follows:
    On Saturday, October 6, 1990, at
    approximately 2:29 a.m., he was dispatched to
    the Fountains, a gated community in
    Henderson. While on his way, Hull was
    flagged down by a man who subsequently
    identified himself as Frank Allen. Allen
    appeared frantic and Hull observed blood on
    his shirt and blood running down the left side
    of his head. Allen told Hull that Smith had
    attacked him with a hammer or a hatchet.
    After arriving at the Smiths’ home, located at
    2205 Versailles Court inside the gated
    community, Hull and two other officers
    observed a large broken window lying on the
    front porch outside the house. Allen had
    explained to the officers that he had left
    through that window. The officers entered the
    premises and, during a search of a bedroom,
    observed what appeared to be a figure beneath
    SMITH V. BAKER                      7
    a blanket. After lifting the blanket, they
    discovered a dead body, subsequently
    identified as twelve-year-old Kristy Cox. In
    an adjacent bedroom they discovered a second
    body, also dead and covered with a blanket,
    later identified as twenty-year-old Wendy
    Cox. Under a blanket in the master bed, the
    officers found a third victim, Kristy and
    Wendy’s mother and Smith’s wife, Judith.
    The officers also located some notes written
    by Smith. The first, found inside a briefcase
    in the upstairs den, and dated October 5, 1990,
    read:
    A triple murder was committed here this
    morning. My wife, Judith Smith and my
    two stepdaughters, Wendy Cox and Kristy
    Cox, were assassinated. I know who did
    it. I know who sent them. I had been
    warned that this would happen if I did not
    pay a large sum of money to certain
    people. I have been owing it for a long
    time and simply could not come up with
    it. And I didn’t believe the threat. I don’t
    need any help from the police in this
    matter. I will take care of it myself. They
    will have to kill me, too. When and if you
    find me, I’m sure I will be dead, but that’s
    okay.     I already killed one of the
    murderers. And I am going to get the
    others and the man who I know sent them.
    There were three in all. You will
    8                 SMITH V. BAKER
    probably find my body within a day or
    two.
    Thank you, Joe Smith.
    P.S.: I thought I had gotten away when
    we moved here, but it didn’t work. When
    we moved, we were being watched. If I
    am successful in my task at hand, I will
    turn myself into (sic) the police.
    The second letter stated, “Frank [Allen], look
    in the locked room upstairs for your package.
    The key is on the wet bar. Joe.” Dr. Giles
    Sheldon Green, Chief Medical Examiner for
    Clark County, testified that he performed the
    autopsies on the bodies of the three victims.
    Green stated that all three victims died from
    asphyxia due to manual strangulation. He
    also opined that the pattern of injuries found
    on the three victims could have been inflicted
    with a carpenter’s hammer. On Kristy, Green
    observed three blunt lacerations to the scalp
    and a lot of blood in Kristy’s hair, some
    bruising and a scratch on her neck, and
    substantial hemorrhaging as a result of the
    trauma to her scalp.
    On Wendy, Green observed several “quite
    ragged, irregular, deep lacerations of the
    forehead,” and at least six or seven wounds of
    the face. There were a total of thirty-two head
    lacerations, some of which were patterned
    injuries of pairs of penetrating wounds of the
    SMITH V. BAKER                      9
    scalp tissue. On the left side of Wendy’s
    head, a large laceration inside the ear almost
    cut the outer ear in two. Green found
    numerous scratches and abrasions on the front
    of Wendy’s neck, as well as defensive
    wounds, such as a fractured finger, bruises on
    the backs of her hands and a finger with the
    skin over the knuckle knocked away. Green
    found areas in which the various head impacts
    had created depressed fractures of the outer
    and inner surfaces of the skull. There was
    also a great deal of hemorrhaging and damage
    to the soft tissues of Wendy’s neck.
    On Judith, Green found lacerations of the
    forehead and above her right eyebrow,
    abrasions and scratches on the front of her
    neck and a cluster of at least five lacerations
    of the scalp, mainly on the right side of the
    back of the head. It was Green’s opinion that
    the five lacerations were inflicted after death.
    Allen testified as follows: He met Smith in
    September 1990, when Smith came to Allen’s
    home located at 2205 Versailles Court, inside
    the Fountains, wishing to purchase that home.
    Although Allen first indicated that the house
    was not for sale, after Smith agreed to pay
    $50,000 over the appraised value of $650,000,
    Allen agreed to sell him the house. Allen
    subsequently gave Smith the keys to the
    house, but retained one of the bedrooms for
    his use when he came to Las Vegas on
    weekends, until the sale was final. Smith
    10                 SMITH V. BAKER
    informed Allen that he was in a rush to move
    into the house because he wanted to make
    preparations for his step-daughter, Wendy’s,
    wedding in November.
    On September 21, 1990, Smith gave Allen a
    personal check for $35,000 as a good faith
    deposit. Approximately six days later, the
    bank notified Allen that the check had been
    returned because Smith had closed his
    account. Smith assured Allen that he would
    mail him a certified check immediately. Two
    days later, having not received a check, Allen
    indicated to Smith that he would be coming to
    Las Vegas on Friday, October 5, 1990, and
    would pick up the check then.
    On Friday morning, Allen received a call from
    Smith who stated, “I thought you were
    coming up here this morning.” Allen told
    Smith that he would be coming later in the
    day. Smith stated that he and his wife were
    going to California to shop for furniture that
    day, so they arranged for Smith to leave two
    checks, the $35,000 deposit check and a
    $3,338.80 check for the October mortgage
    payment, behind the wet bar in the house,
    along with Allen’s mail.
    Allen arrived at the house between 1:00 a.m.
    and 1:30 a.m. on Saturday, October 6, 1990,
    and noticed that the security system was off.
    He went behind the wet bar to retrieve his
    mail and found the note from Smith telling
    SMITH V. BAKER                       11
    him to look in the locked room upstairs for the
    package. Allen went to that room and, not
    finding any checks, went into the game room.
    Although the light was not on in the game
    room, the area was illuminated by a large
    chandelier in the hallway.
    In the game room, Allen saw Smith crouched
    in the closet. Smith then jumped out and
    began to pound Allen in the head with an
    object, which Allen assumed was a hammer.
    Allen asked Smith what he was trying to do,
    but Smith did not say anything. Realizing that
    Smith was trying to kill him, Allen said,
    “You’re not going to get away with this,” and
    pushed Smith backward and ran down the
    stairway with Smith pursuing him. Allen tried
    to figure out the best way to get out of the
    house, and after realizing that he had locked
    himself in, ran straight through the full-length,
    leaded-glass front door. He then got into his
    car and drove to the guard shack at the
    entrance to the development and asked the
    guard to call the police.
    Eric Lau, the security guard then on duty at
    the guard-gated entrance to the Fountains,
    testified that at approximately 2:30 a.m. on
    Saturday, October 6, 1990, Allen ran up to the
    side of the guard house and pounded on the
    window. Allen’s shirt was covered with
    blood and he said, “He’s after me! He’s after
    me!” Lau immediately called for help and
    12                  SMITH V. BAKER
    then saw Smith’s Lincoln automobile exit the
    Fountains, with Smith behind the wheel.
    Yolanda Cook, Judith’s daughter-in-law,
    testified that on the morning of Friday,
    October 5, 1990, at 8:00 a.m., she called the
    Smiths’ house to see if someone could take
    her son to school. She spoke with Smith, who
    told her that he had to go to a meeting and that
    Judith, Wendy and Kristy had gone shopping
    for Wendy’s wedding. Between 9:00 a.m. and
    3:30 p.m., Yolanda called the Smiths’ house
    three more times, and each time Smith told
    her that Judith and her daughters were away.
    Yolanda further testified that on Saturday,
    October 6, 1990, at approximately 5:00 a.m.,
    Smith called her and told her of the three
    murders. He told her that Allen came into the
    house and bludgeoned them to death. Smith
    requested that she tell all of Judith’s other
    children and then go to the house and get the
    letters out of his briefcase explaining what
    happened. He then told her that he was going
    to kill himself and hung up the phone.
    William Lawrence Cook, one of Judith’s sons,
    testified that Smith had expressed concern and
    irritation over financial obligations such as
    Wendy’s pending wedding and the new
    house. William testified that Smith would
    often refer to himself as the “Lone Wolf” and
    say, “I gotta get outta here.” Sometimes
    Smith would say that he just wanted to go
    SMITH V. BAKER                     13
    away and live on an island somewhere
    “around no kind of family or nothing like
    that.” William also remembered Smith telling
    him that “the worse thing to f___ up a man
    was to have a family.” Smith made these
    statements during a collection of
    conversations over a period of years.
    Smith took the stand on his own behalf and
    testified as follows: In 1986 he encountered
    financial difficulties and agreed to accept a
    drug dealing opportunity in Los Angeles with
    an organization. That same year, Smith
    moved to Las Vegas and continued working
    for the organization. At some point, the
    organization falsely accused Smith of stealing
    cocaine and told Smith that he now owed the
    organization a big debt. Smith quit working
    for the organization and in 1989 Gino, a man
    from the organization, found Smith and
    reminded him of the debt, saying that “it had
    to be paid or else they were going to give
    [him] a fate worse than death.”
    He resumed working for the organization, and
    also began to look for a new house in a gated
    community. He found the house at the
    Fountains and arranged payment terms with
    Allen, which included giving Allen eleven
    kilograms of cocaine in exchange for the
    equity in the house. The eleven kilograms
    were part of a twenty kilogram shipment
    which Smith had received from the
    organization and had decided to keep for
    14                 SMITH V. BAKER
    himself. Smith gave Allen ten kilograms of
    cocaine, worth approximately $200,000, on
    the same day that he gave Allen the $35,000
    check. He claimed that Allen knew that the
    check was no good and served only to make
    the transaction seem legitimate, and said he
    would not deposit it.
    On Thursday, October 4, 1990, Smith left the
    additional kilogram of cocaine owed Allen in
    Allen’s bathroom sink, upstairs where Allen
    stayed when he was in town for weekends.
    That same day, Smith told the organization
    that he had sold twenty kilograms of cocaine
    and was keeping the money because he was
    “tired of working for peanuts.”
    Between 2:00 a.m. and 3:00 a.m. on the
    morning of Friday, October 5, while he was in
    bed with Judith, he was awakened by a tap on
    his toe. He then saw three men standing over
    his bed, one of whom picked up a hammer
    Smith had been using the previous night and
    began slapping it in his hand and asking Smith
    where the “stuff” was. Another man, who had
    a sawed-off shotgun, forced Smith to go into
    the game room and made him lay down and
    stay there. Smith subsequently discovered
    that his family had been killed.
    On Friday, after the murders, he remembered
    receiving three phone calls from Yolanda. He
    stated that “I brushed her off like I had other
    things to do, a meeting I had to attend . . . I
    SMITH V. BAKER                      15
    really needed some time to sort this out.
    There was too many loose ends that I didn’t
    have answers to.” Smith stated that he did not
    go to the police because he would have to tell
    them about the drugs and because it looked
    like he committed the crime and he knew they
    would put him in jail. He stated that he was
    also trying to figure out if Allen might have
    been involved in the murders and might have
    provided the killers with keys to the house.
    He called Allen that Friday morning to see if
    he could find out from Allen’s voice if Allen
    was involved in the murders. After the phone
    call, he decided that Allen was not involved.
    At approximately 4:00 p.m. on Friday, Smith
    took some sleeping pills and lay down on the
    game room floor by the closet. Early
    Saturday morning, he awoke to the sounds of
    someone coming into the game room. He
    thought that the killers had returned and began
    swinging the hammer at a man. He did not
    know it was Allen because it was dark and
    Allen did not say anything during the attack.
    Six months after the murders, Smith was
    arrested in California. When he was arrested,
    evidence was seized which indicated that he
    was attempting to change his identity. Smith
    was charged with three counts of murder with
    16                    SMITH V. BAKER
    use of a deadly weapon and one count of
    attempted murder with use of a deadly
    weapon.
    
    Id.
     at 650–53.
    II. Procedural History
    A. Trial and Direct Appeal
    A Nevada jury convicted Smith of three counts of murder
    and one count of attempted murder. Smith I, 
    881 P.2d at 653
    .
    The State alleged a single statutory aggravator, that the
    murders involved “torture [, depravity of mind] or the
    mutilation of the victim.” 
    Nev. Rev. Stat. § 200.033
    (8). The
    jury imposed the death penalty for Kristy’s and Wendy’s
    murders, life without possibility of parole for Judith’s
    murder, and a twenty-year term for the attempted murder of
    Frank Allen, enhanced by an additional twenty-year term for
    use of a deadly weapon. Smith I, 
    881 P.2d at
    653–54. On
    direct appeal, the Nevada Supreme Court vacated the two
    death sentences and ordered a new penalty hearing because it
    deemed Instruction 10, which instructed the jury on
    “depravity of mind,” unconstitutionally vague. The court
    reasoned that this Instruction failed to properly channel the
    jury’s discretion. See 
    id.
     at 654–56.
    At the second penalty hearing, the State again alleged a
    single aggravator pursuant to 
    Nev. Rev. Stat. § 200.033
    (8)
    and the court again used Jury Instruction 10. But the court
    also added Instruction 11 to further define “depravity of
    mind.” Smith’s counsel moved to dismiss the aggravating
    circumstances as to Kristy, arguing there was insufficient
    evidence of torture, mutilation, or depravity of mind. Smith
    SMITH V. BAKER                        17
    II, 
    953 P.2d at 265
    . The trial court granted the motion in part,
    ruling there was insufficient evidence of torture and
    mutilation. The court allowed the jury to consider depravity
    of mind as to Kristy’s murder, but the jury considered all
    three theories of the aggravator for Wendy’s murder. 
    Id.
     The
    special verdict form shows that the second jury found
    depravity of mind with respect to Kristy’s murder, and
    depravity of mind and mutilation with respect to Wendy’s
    murder. 
    Id.
     The second jury reimposed the death penalty.
    
    Id.
    Smith appealed, and the Nevada Supreme Court again
    vacated the death sentence for Kristy’s murder. 
    Id. at 265, 267
    . The court ruled that the instructions for depravity-of-
    mind still failed to properly channel the jury’s discretion in
    connection with the charges stemming from Kristy’s death.
    
    Id. at 267
    . The court imposed a life sentence without the
    possibility of parole for Kristy’s murder. 
    Id.
     As to Wendy’s
    murder, the court upheld the death sentence, concluding that
    the jury instructions concerning mutilation were
    constitutionally sound, and that there was sufficient evidence
    from which a reasonable jury could find mutilation beyond a
    reasonable doubt. 
    Id.
     at 267–68.
    B. State Post-Conviction Review Proceedings
    Smith filed a pro per state habeas petition in August
    1998. Several attorneys were sequentially appointed to
    represent him—Gary Gowen, David Schieck, Karen
    Connolly, Cristina Hinds, and Christopher Oram—during the
    first post-conviction proceedings. An amended petition and
    two supplements were filed on Smith’s behalf. The state
    district court denied Smith’s post-conviction petition in 2005,
    18                    SMITH V. BAKER
    and the Nevada Supreme Court affirmed that decision in
    2006.
    In 2007, Smith filed a pro per habeas petition pursuant to
    
    28 U.S.C. § 2254
     in federal court. An attorney appointed to
    represent Smith filed an amended petition several months
    later. The federal district court stayed the proceedings so
    Smith could return to state court to exhaust additional claims.
    Back in state court, Smith’s amended habeas petition was
    denied, and the Nevada Supreme Court affirmed that decision
    in 2010.
    Smith then resumed pursuit of his federal claims. The
    district court denied his habeas petition in March 2014, but
    subsequently granted a Certificate of Appealability for Claim
    4 (ineffective assistance by penalty-phase counsel for failing
    to investigate and present mitigation evidence of Smith’s
    mental health). Smith timely filed a notice of appeal.
    III. Standard of Review
    We review de novo the district court’s order denying
    Smith’s federal habeas petition. Rodney v. Filson, 
    916 F.3d 1254
    , 1258 (9th Cir. 2019). Pursuant to the Antiterrorism and
    Effective Death Penalty Act of 1996 (AEDPA), we may grant
    habeas relief on a claim adjudicated on the merits in state
    court only if the state court decision “was contrary to, or
    involved an unreasonable application of, clearly established
    Federal law, as determined by the Supreme Court of the
    United States,” or if the decision “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)(1), (2). “[A]ny federally reviewable claims that
    were not adjudicated on the merits in state court are reviewed
    SMITH V. BAKER                        19
    de novo.” Rodney, 916 F.3d at 1258 (citing Runningeagle v.
    Ryan, 
    825 F.3d 970
    , 978 (9th Cir. 2016)).
    IV. Discussion
    A. Claim 4—Martinez
    Smith’s federal habeas petition asserts that his second
    penalty-phase lawyers were ineffective for failing to
    investigate, develop, or present mitigation evidence during
    the second penalty phase. Smith exhausted this claim in state
    court, but the Nevada Supreme Court concluded that it had
    been procedurally defaulted. The claim was first presented in
    Smith’s second habeas petition and the state supreme court
    ruled it was untimely pursuant to 
    Nev. Rev. Stat. § 34.726
    (1),
    and successive pursuant to 
    Nev. Rev. Stat. § 34.810
    (2).
    Smith’s federal petition argued that the procedural default of
    this claim should be excused pursuant to the test set forth in
    Martinez, 
    566 U.S. at
    10–17.
    Martinez allows the procedural default of a claim to be
    excused under specific circumstances. 
    Id. at 17
    . To show
    cause for excusing a procedural default, Martinez requires
    that a petitioner show that the state system in which he
    initially brought his IAC claim required that the claim be
    raised in initial-review collateral proceedings, and that the
    state did not permit the petitioner to raise the claim on direct
    appeal. Runningeagle, 825 F.3d at 973. A petitioner must
    further show that the attorney who represented him in state
    post-conviction proceedings performed deficiently and
    thereby prejudiced his case under the standard set out in
    Strickland v. Washington, 
    466 U.S. 668
     (1984).
    Runningeagle, 825 F.3d at 973.
    20                      SMITH V. BAKER
    In support of his federal petition, Smith argued that his
    lawyers at the first state post-conviction review proceeding
    were ineffective because they failed to raise an IAC-by-trial-
    counsel claim. Smith highlighted numerous facts available to
    trial counsel that he considered to be evidence of mental
    illness and argued that his penalty-phase counsel should have
    raised evidence of mental illness in mitigation. Among other
    things, Smith contended that his counsel should have argued
    that he engaged in numerous fraudulent real estate deals over
    the years leading up to the murders, that he had an outburst
    during his guilt phase testimony where he threw newspaper
    articles at the jury, and that he had insisted on testifying at the
    trial even though his explanation of the circumstances
    surrounding the murders was obviously implausible.
    Smith’s counsel retained two mental health experts and
    submitted their declarations in support of his federal petition.
    One expert opined that Smith exhibited a “delusional disorder
    of the grandiose type” since early adulthood. This expert
    opined that individuals with delusional disorder “cannot
    escape their delusions or acting on the delusions,” and that
    the letter Smith left at the crime scene indicating that
    intruders murdered his wife and step-daughters was evidence
    of this, as was Smith’s persistence in relating his version of
    events to the jury despite his intelligence and despite the
    patent unbelievability of his story. The other expert’s
    declaration agreed that Smith suffers from grandiose
    delusions, and observed, “Smith suffers from clinically
    significant psychiatric difficulties . . . far predat[ing] the
    above described crimes for which he has been convicted and
    sentenced[,] and [] these psychiatric difficulties have had and
    continue to have a significant impact on Mr. Smith’s ability
    to function in important areas of his life.” This expert
    explained that Smith’s behavior “reflect[s] mental health
    SMITH V. BAKER                        21
    problems and distorted thinking,” and that when the expert
    met with Smith, he “evidence[d] specific paranoid and
    grandiose delusions.” Smith submitted to psychometric
    testing for a pre-guilt phase competency interview in 1992,
    and that evaluation was filed in support of his federal habeas
    petition. The competency assessment concluded that Smith
    was competent to stand trial and that Smith did not suffer
    from any acute or Axis I mental disorders, although it noted
    that he suffered from a mixed personality disorder and
    displayed antisocial behavior, grandiosity, and histrionic
    features during the competency interview.
    The federal district court considered this evidence and
    discussed it in an order concluding that Smith’s IAC claim
    was procedurally barred by 
    Nev. Rev. Stat. § 34.726
    ,
    Nevada’s timeliness rule, because Smith did not assert this
    claim until he returned to state court to file his exhaustion
    petition. The district court also determined that Smith failed
    to show that habeas counsel provided ineffective assistance
    for purposes of satisfying the cause and prejudice components
    of Martinez because, even considering the new evidence
    relating to Smith’s mental health, Smith did not show a
    reasonable probability that there would have been a more
    favorable outcome at the penalty phase of his trial.
    On appeal, Smith argues that the record establishes cause
    and prejudice to excuse the procedural default of this IAC
    claim, and further argues that the district court erred by
    failing to grant an evidentiary hearing before denying it. “A
    claim is procedurally defaulted if it was rejected by the state
    courts based on ‘independent’ and ‘adequate’ state procedural
    grounds.” Rodney, 916 F.3d at 1259 (citing Coleman v.
    Thompson, 
    501 U.S. 722
    , 729–32 (1991)). Because the
    Nevada Supreme Court rejected Claim Four as untimely and
    22                          SMITH V. BAKER
    successive pursuant to state law, we may not review it unless
    Smith demonstrates cause to excuse the default and actual
    prejudice resulting from a violation of federal law. See 
    id.
    Specifically, Smith must show:
    (1) the claim of “ineffective assistance of trial
    counsel” was a “substantial” claim; (2) the
    “cause” consisted of there being “no counsel”
    or only “ineffective” counsel during the
    state collateral review proceeding; (3) the
    state collateral review proceeding was
    the “initial” review proceeding in respect to
    the “ineffective-assistance-of-trial-counsel
    claim”; and (4) state law requires that an
    “ineffective assistance of trial counsel [claim]
    . . . be raised in an initial-review collateral
    proceeding.
    Trevino v. Thaler, 
    569 U.S. 413
    , 423 (2013) (emphasis
    omitted) (quoting Martinez, 
    566 U.S. at
    12–22).
    We first address Smith’s contention that he was entitled
    to an evidentiary hearing. See Tapia v. Roe, 
    189 F.3d 1052
    ,
    1058 (9th Cir. 1999) (reviewing a district court’s refusal to
    hold an evidentiary hearing for abuse of discretion). Smith
    must allege a colorable claim for relief on his IAC claim in
    order to obtain a remand for an evidentiary hearing. West v.
    Ryan, 
    608 F.3d 477
    , 485 (9th Cir. 2010). The district court
    allowed Smith to submit the mental health declarations his
    lawyers obtained in 2007 and the court explicitly considered
    this extra-record evidence in its order dismissing Smith’s
    Martinez claim.1
    1
    Cf. Cullen v. Pinholster, 
    563 U.S. 170
    , 181–82 (2011).
    SMITH V. BAKER                        23
    Smith fails to demonstrate what additional factual
    development would be possible at an evidentiary hearing. He
    argues that his experts would be allowed to further explain
    their opinions at a hearing, but they would also be subject to
    cross examination. Neither of his experts had an opportunity
    to conduct testing and only one of them interviewed Smith.
    If an evidentiary hearing were held, the State would be
    permitted to cross-examine Smith’s experts and introduce
    expert testimony of its own. Accordingly, we conclude that
    Smith has not shown that he was prejudiced by the lack of an
    evidentiary hearing, and the district court did not abuse its
    discretion by dismissing the Martinez claim without holding
    one.
    Turning to Martinez Step One, Smith must demonstrate
    that his “underlying ineffective-assistance-of-trial-counsel
    claim is a substantial one, which is to say that the prisoner
    must demonstrate that the claim has some merit.” Martinez,
    
    566 U.S. at 14
    . Smith argues that the claim his penalty-phase
    lawyers were ineffective is “substantial” because trial counsel
    failed to investigate or present information regarding his
    history of mental illness. Smith asserts that his lawyers’
    penalty-phase investigation consisted solely of interviewing
    a few family members on the day they were scheduled to
    testify and presenting brief testimony regarding Smith’s good
    character. He contends that no effort was taken to investigate
    mental health issues, and that testimony from mental health
    experts would have explained his actions. Because no
    alternate defense theory was aggressively pursued, Smith
    argues that the failure to provide any explanation for the
    crimes gave the jury no reason to impose a life sentence.
    The State responds that introducing Smith’s experts’
    declarations at the penalty phase would have been tantamount
    24                    SMITH V. BAKER
    to ineffective assistance of counsel because it would have
    painted Smith as a con man and torpedoed his defense. In the
    State’s view, the 1992 competency assessment was “both
    broad and deep.” It was also the only evaluation that
    included psychometric testing. The State acknowledges the
    competency assessment showed elevated scales for antisocial
    behavior and grandiosity with manic tendencies, but stresses
    that the competency assessment concluded Smith exhibited
    no acute or Axis I mental disorders and had no serious
    cognitive or affective psychological disorder. In short, the
    State argues that Smith was not prejudiced by the failure to
    present other mental health evidence.
    The standard for showing a claim is “substantial” is
    comparable to the standard for granting a certificate of
    appealability pursuant to 
    28 U.S.C. § 2253
    (c)(2); a petitioner
    “need show only that ‘jurists of reason could disagree with
    the district court’s resolution of his constitutional claims
    . . . .’” Runningeagle, 825 F.3d at 983 n.14 (quoting Miller-
    El, 
    537 U.S. at 327
    ). Proving the merits of an IAC claim
    requires showing that: (1) “counsel’s representation fell
    below an objective standard of reasonableness . . . under
    prevailing professional norms”; and (2) “there is a reasonable
    probability that, but for counsel’s unprofessional errors, the
    result of the proceeding would have been different.” Rodney,
    916 F.3d at 1260 (quoting Strickland, 
    466 U.S. at 688, 694
    ).
    1. Strickland Prong One
    With respect to the first Strickland prong, deficient
    performance is performance that falls “below an objective
    standard of reasonableness” and is outside of “the range of
    competence demanded of attorneys in criminal cases.”
    Strickland, 
    466 U.S. at
    687–88 (quoting McMann v.
    SMITH V. BAKER                          25
    Richardson, 
    397 U.S. 759
    , 771 (1970)). The objective
    measure of counsel’s performance is determined by looking
    at the “reasonableness under prevailing professional norms.”
    Id. at 688. Professional norms are measured at the time of
    counsel’s actions rather than by reference to modern norms.
    See Cullen v. Pinholster, 
    563 U.S. 170
    , 196 (2011). This
    assessment is made “from counsel’s perspective at the time,”
    so as “to eliminate the distorting effects of hindsight.”
    Strickland, 
    466 U.S. at 689
    . We “defer to a lawyer’s strategic
    trial choices, [but] those choices must have been made after
    counsel [ ] conducted reasonable investigations or [made] a
    reasonable decision that ma[de] particular investigations
    unnecessary.” Summerlin v. Schriro, 
    427 F.3d 623
    , 630 (9th
    Cir. 2005) (quoting Strickland, 
    466 U.S. at 691
    ).
    During the April 1996 second penalty hearing, counsel
    based Smith’s sentencing argument on character evidence
    very similar to the evidence presented at the first trial, and did
    not arrange or request a mental health evaluation of Smith.
    Smith’s first-chair counsel at the second penalty hearing,
    Donald York Evans, acknowledged in a 2007 declaration
    filed with Smith’s federal habeas petition that Smith was “an
    interesting case, psychologically,” and that when he first met
    Smith, Evans “wanted to do a complete psychological work-
    up on him.” Evans admitted that he “did not press the issue”
    because Smith declined to submit to testing and Evans
    “wasn’t confident that [he] would get anything [he] could use
    from an evaluation anyway.” Evans “suspected [Smith] had
    schizoid tendencies and a high IQ but that was just [his] guess
    and [Smith] wouldn’t participate in an evaluation.” State
    habeas counsel’s 2002 interview of second-chair counsel,
    Peter LaPorta, was consistent. Asked whether “there [was]
    anything else that [counsel felt] should have been done for
    [Smith’s] second penalty phase” LaPorta responded, “[Y]es,
    26                    SMITH V. BAKER
    to put it succinctly. I was very uncomfortable with the
    background information that [had been] developed on the
    family and the family history, military history, educational
    history, any psychological history.”
    We agree with Smith that the performance of his second
    penalty-phase counsel was deficient. This is not a case in
    which counsel chose not to pursue mental health mitigation
    evidence because there were other defense theories to pursue;
    indeed, the presentation made on Smith’s behalf at the second
    penalty phase was exceptionally sparse. The transcript
    reflects only about twenty-five pages of testimony from three
    family members and three family friends who testified about
    Smith’s character and his relationship with his family, even
    though red flags regarding Smith’s mental health were raised
    in the pre-trial competency assessment and by his behavior
    before and during trial. It was incumbent upon counsel to
    investigate Smith’s mental health even though Smith denied
    mental illness. The record shows that Smith’s lawyers did
    not conduct an investigation to ascertain the extent of any
    possible mental impairment, or to determine whether mental
    health could have been raised as a mitigating factor at
    sentencing. Counsel concluded that any psychological
    assessment performed without Smith’s cooperation would be
    of little or no value, but one of the two expert declarations
    filed on Smith’s behalf in 2007 was prepared solely based on
    the expert’s review of the record. If nothing else, a
    comparable report could have been prepared at the time of the
    sentencing without Smith’s participation. The applicable
    American Bar Association (ABA) guidelines made clear that
    “[t]he investigation for preparation of the sentencing phase
    . . . should comprise efforts to discover all reasonably
    available mitigating evidence.” ABA Guidelines 11.4.1(C)
    (1989). The ABA guidelines further specified that counsel
    SMITH V. BAKER                        27
    should collect a medical history (including “mental and
    physical illness”) and investigate a defendant’s social history
    in preparation for the penalty phase. Id. 11.4.1(2)(C). On the
    record before us, we do not hesitate to conclude that the
    failure to investigate Smith’s mental health history
    contravened the ABA guidelines.
    We have said that “strategic choices made after less than
    complete investigation are reasonable precisely to the extent
    that reasonable professional judgments support the limitations
    on investigation.” Wiggins v. Smith, 
    539 U.S. 510
    , 521
    (2003) (quoting Strickland, 
    466 U.S. at
    690–91). Smith’s
    counsel had good reason to be concerned about Smith’s
    mental state yet they acknowledged that they did not try to
    obtain a psychiatric report, apparently because Smith
    objected. We do not minimize the difficulty presented by
    Smith’s failure to cooperate, but Smith had no other viable
    defense and his inability to recognize that and submit to a
    mental health evaluation may well have been another
    indicator of a mental health disorder. The failure to pursue
    mental health mitigation evidence “ignored pertinent avenues
    for investigation of which [counsel] should have been aware.”
    Porter v. McCollum, 
    558 U.S. 30
    , 40 (2009) (per curiam).
    The record does not demonstrate that counsel’s failure to
    investigate was strategic. No alternate mitigation evidence or
    argument was proffered to the jury, despite what appears to
    be agreement among Smith’s attorneys that he may have
    suffered from some sort of mental illness. See Evans v.
    Lewis, 
    855 F.2d 631
    , 637 (9th Cir. 1988) (“Counsel’s failure
    to investigate [a petitioner’s] mental condition[, despite prior
    notice,] cannot be construed as a trial tactic.”); see also
    Hendricks v. Calderon, 
    70 F.3d 1032
    , 1043 (9th Cir. 1995)
    (“[W]here counsel is on notice that his client may be mentally
    impaired, counsel’s failure to investigate his client’s mental
    28                     SMITH V. BAKER
    condition as a mitigating factor in a penalty phase hearing,
    without a supporting strategic reason, constitutes deficient
    performance.”).
    Our concurring colleague concludes that Smith’s
    counsel’s performance was not deficient, cautioning that
    counsel’s performance must not be judged with hindsight.
    Concurrence at 46–47. We do not doubt this rule, but in our
    view it is the concurrence that misapplies it. By conflating
    Strickland’s prongs one and two, the concurring opinion
    decides that it was permissible to forgo a psychological
    evaluation because, without Smith’s cooperation, his lawyers
    guessed that a psychological assessment would be of “no
    value.” Concurrence at 49–51. There is no question that
    Smith’s failure to cooperate with a psychological evaluation
    would have hindered any effort to muster persuasive
    mitigating evidence for the second penalty phase, but this
    comes into play at Strickland step two, when we consider
    whether counsel’s deficient performance resulted in
    prejudice. At step one, we consider whether Smith’s lawyers’
    performance fell below an objectively reasonable standard,
    and that question is largely a function of the choices that were
    available to counsel. Here, we consider the questions raised
    by Smith’s pre-trial competency evaluation and by counsel’s
    own observations of Smith’s behavior; Smith’s persistent
    failure to recognize the implausibility of his trial testimony;
    his concerning trial conduct; and the fact that there was
    almost nothing else to offer in defense of the death penalty.
    On this record, it was unreasonable to forgo a psychological
    evaluation merely because Smith had confidence in his own
    mental health and counsel assumed an assessment would be
    of little value. Indeed, it is easy to imagine that a defendant’s
    insistence that he is not ill may be a symptom of mental
    illness. The out-of-circuit cases the concurring opinion cites
    SMITH V. BAKER                       29
    are not to the contrary. See, e.g., Coleman v. Mitchell,
    
    244 F.3d 533
    , 544–46 (6th Cir. 2001) (distinguishing cases in
    which the failure to investigate and present mitigating
    evidence constituted ineffective assistance, because defendant
    served as co-counsel and instructed counsel to pursue an
    alternate strategy); Johnston v. Singletary, 
    162 F.3d 630
    , 642
    (11th Cir. 1998) (per curiam) (concluding that counsel’s
    decision to forgo psychiatric testimony was strategic where
    defendant refused to cooperate and his medical records
    contained substantial data regarding his criminal history).
    We conclude that Smith satisfied his burden of
    demonstrating a “substantial” argument that his second
    penalty-phase counsel’s performance was deficient.
    2. Strickland Prong Two
    The second Strickland prong requires that Smith show “a
    reasonable probability that, but for counsel’s unprofessional
    errors, the result of the proceeding would have been
    different.” Strickland, 
    466 U.S. at 694
    . The State argues that
    even if Smith had presented evidence to the jury showing he
    suffered from grandiose delusions as a result of his mixed
    personality disorder, this mitigation evidence would have
    paled in comparison to his vicious attack on his wife and
    step-daughters. The Supreme Court has cautioned that this
    type of evidence “is [] by no means clearly mitigating, as the
    jury might have concluded that [the defendant] was simply
    beyond rehabilitation.” Cullen, 
    563 U.S. at 201
    . Moreover,
    in this case, testimony from a mental health expert would
    have opened the door to rebuttal from a State expert witness.
    See 
    id.
     In light of the extraordinarily brutal nature of the
    murders, Smith has not shown that reasonable jurists would
    30                    SMITH V. BAKER
    debate whether the result of Smith’s proceeding would have
    been different if mitigation evidence had been pursued.
    Our conclusion on this point is heavily influenced by
    Smith’s failure to submit to a psychiatric evaluation at the
    time of the penalty phase, and by the fact that only limited
    evaluations could have been prepared without Smith’s
    cooperation. Without the ability to conduct psychometric
    testing and prepare detailed in-depth personal interviews with
    Smith, any expert’s opinion would have been compromised
    and necessarily vulnerable to cross examination.
    To support his federal petition, Smith relies on the
    opinions of Dr. Paula Lundberg-Love and Dr. Richard
    Dudley to argue that counsel failed to investigate, develop,
    and present mitigating mental health evidence. These experts
    connected Smith’s “delusional thinking” with his long history
    of get-rich-quick schemes and fraudulent dealings. For
    example, Dr. Lundberg-Love attributed Smith’s extensive
    history of fraudulent schemes to his delusions and “inflated
    sense of self-worth.” She also juxtaposed Smith’s numerous
    fraudulent schemes, ranging from real estate deals to
    gemstone trading to check fraud, with his incredulous
    protestations of innocence and claims that he had been set up
    at every turn. Dr. Lundberg-Love noted that despite Smith’s
    obviously precarious financial situation, he negotiated a
    contract for the home in which the murders took place.
    Among her conclusions, Dr. Lundberg-Love determined that
    Smith had “persistent false beliefs” relating to these schemes,
    and that he had “exclusive insight or interpretation[s] of the
    facts that will free him from his predicament.” Dr. Lundberg-
    Love concluded that Smith’s schemes and plans, in light of
    the clear facts that he “never had sufficient resources to
    SMITH V. BAKER                         31
    execute” them, “support[] the diagnosis of delusional
    disorder.”
    Dr. Dudley, who examined Smith in prison, reached
    similar conclusions. Dr. Dudley explained that, when he met
    Smith, “it was clear that he is extremely bright,” but he
    “evidenced both a level of paranoid thinking and grandiosity
    that compromised his . . . decision-making capabilities and
    judgment.” He determined that Smith’s “grandiosity”
    included “pursuing big real estate deals while he had no
    assets, and he apparently did not succeed in any legitimate
    deals.” Like Dr. Lundberg-Love, Dr. Dudley connected
    Smith’s grandiose thinking to his decision to move his family
    into a mansion “despite the fact that his checking account had
    been closed for too many overdrafts, and despite him not
    having any means to pay the pending mortgage debt against
    the house.”
    Contrary to Smith’s protestations that the information
    related to his mental health has “long [been] recognized as
    mitigating,” this evidence is not “clearly mitigating.” First,
    though it demonstrates Smith’s grandiosity, it focuses
    extensively on Smith’s unlawful schemes. For example, in
    one fraud detailed in Dr. Lundberg-Love’s report, Smith
    offered handyman and remodeling services for a fee to
    homeowners, then disappeared after receiving money for the
    services. When confronted, Smith represented to the
    homeowners that “the freight lines stole the cabinets he
    ordered, and he [had to] travel[] to try to obtain the cabinets.”
    Ultimately, Smith never returned to finish the remodel, and
    the homeowners lost the money they entrusted to Smith. In
    another scheme, Smith and his brother, Harold, “fronted
    money to homeowners in foreclosure,” and, in return,
    “required that the homeowners provide . . . their deed as
    32                     SMITH V. BAKER
    security.” Smith and his brother then pocketed the
    homeowners’ mortgage payments, never applied the
    payments to the mortgage, and sold the property to third
    parties. Dr. Lundberg-Love’s and Dr. Dudley’s reports
    detailed other schemes in which Smith attempted to obtain
    loans on real property with forged deeds, attempted to sell
    property with forged deeds, and attempted to trade “valuable”
    amethysts (which were of little value) for real estate in Texas.
    Thus, while there is a chance the evidence “may have served
    to evoke sympathy for Smith or cast his culpability for the
    murders in a different light,” there is an equal chance the jury
    would have decided that this evidence confirmed that Smith
    was a habitual fraudster who “was simply beyond
    rehabilitation.” Cullen, 
    563 U.S. at 201
    .
    The experts focused on Smith’s delusional protestations
    of innocence, but these statements were not “clearly
    mitigating” because they underscored that Smith was willing
    to relate utterly implausible tales, as he did before the jury at
    trial. For example, Dr. Lundberg-Love attested, “In this case
    Mr. Smith’s note indicated several intruders murdered his
    wife and stepchildren and that he killed one of the intruders.
    The only bodies found were those of his wife and step-
    children. As unbelievable as this recitation appeared, Mr.
    Smith persisted in relating these facts to the jury. . . . His
    delusional disorder compelled him to go forward as he did in
    his testimony, even though part of his story was contradicted
    by reality.” We cannot conclude there is a reasonable
    probability that the expert declarations, prepared with little or
    no cooperation from Smith, and without the benefit of
    thorough testing and an opportunity for full evaluation, would
    have changed the outcome of Smith’s penalty phase. See 
    id. at 202
    .
    SMITH V. BAKER                         33
    Smith also argues that counsel spent only a few minutes
    preparing his mitigation witnesses prior to their testimony.
    But Smith glosses over the fact that Evans traveled to Los
    Angeles prior to trial and attempted to meet with Smith’s
    brother. Smith’s brother did not appear at the meeting and
    later refused to meet with Evans. Additionally, Smith’s
    brother, mother, and father “were scheduled to testify at the
    penalty hearing, but on the day of their scheduled testimony,”
    they did not appear. After a number of “frantic calls to the
    family, they appeared at court the next morning.” As a result,
    Evans “did not get to meet with [Smith’s] mom and dad until
    just before they testified.” Finally, Smith fails to identify any
    additional mitigation evidence that could or would have been
    provided by family members if additional time had been
    invested. Because Smith did not meet his burden at
    Strickland Step Two, the district court did not err by ruling
    that Smith’s ineffective assistance of counsel claim was
    procedurally defaulted.
    B. Claim Eight—Stromberg Error
    Smith’s § 2254 petition argues that because the Nevada
    Supreme Court invalidated the trial court’s depravity of mind
    instructions in Smith I and Smith II, Smith II’s affirmance of
    the death penalty for Wendy’s murder was contrary to the
    clearly established federal law set forth in Stromberg v.
    California, 
    283 U.S. 359
     (1931). Stromberg held that a
    verdict is subject to challenge if a jury, presented with
    alternative theories of guilt, may have relied on an
    unconstitutional theory to reach its verdict. 
    Id.
     at 367–68.
    Smith argues that it is unclear whether twelve jurors
    unanimously found “mutilation” to support the statutory
    aggravator because some of them may have relied solely on
    34                     SMITH V. BAKER
    the invalid depravity-of-mind theory. If so, Smith argues, his
    death sentence contravenes Stromberg.
    The State argued in federal court that Smith’s Stromberg
    claim was procedurally defaulted. The district court
    disagreed, but it denied this claim on its merits. The district
    court concluded that any error in the depravity jury
    instruction was harmless because there was “strong
    indication” the jury unanimously agreed on the mutilation
    theory. On appeal to our court, the State abandoned its
    procedural default argument. The State conceded this waiver
    in its argument before our court, so we address the merits of
    Smith’s Stromberg claim. See United States v. Pridgette,
    
    831 F.3d 1253
    , 1259 (9th Cir. 2016).
    To be eligible for the death penalty, Nevada law required
    Smith’s second penalty-phase jury to find at least one
    aggravating circumstance that was not outweighed by any
    mitigating circumstances. 
    Nev. Rev. Stat. § 175.554
    . The
    single aggravating circumstance alleged in Smith’s case was
    that “the murder involved torture, depravity of mind or the
    mutilation of the victim.” See 
    Nev. Rev. Stat. § 200.033
    (8).
    The trial court instructed the first penalty jury that depravity
    of mind required:
    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.
    In Smith I, the Nevada Supreme Court concluded that this
    depravity instruction was unconstitutionally vague. 881 P.2d
    SMITH V. BAKER                       35
    at 655–56. The court explained that its opinion in Robins v.
    State, 
    798 P.2d 558
     (Nev. 1990) had addressed the
    constitutionality of the very same depravity-of-mind
    instruction, and found it deficient. Robins relied on Godfrey
    v. Georgia, 
    446 U.S. 420
     (1980) to rule that the depravity
    instruction required “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.” Robins, 
    798 P.2d at 629
    .
    The Nevada Supreme Court reiterated the same requirement
    in Libby v. State, 
    859 P.2d 1050
    , 1058 (Nev. 1993).
    Smith I concluded that the depravity instruction given in
    Smith’s first penalty hearing was unconstitutionally vague
    because “the jury was not instructed that depravity of mind
    must include torture, mutilation or other serious and depraved
    physical abuse beyond the act of killing itself.” 
    881 P.2d at 655
    . Smith I also acknowledged a unanimity problem was
    presented by the possibility that some of Smith’s jurors may
    have relied on the infirm instruction to impose the death
    penalty. 
    Id.
     Because the special verdict form did not require
    that the jury separately consider depravity, or torture, or
    mutilation; the court observed, “the jury in the instant case
    found in the disjunctive torture, depravity of mind, or
    mutilation and did not specify which of the three it found. It
    therefore might well have based its finding of the aggravating
    circumstance on depravity of mind.” 
    Id.
     The court further
    observed that because the jury found no other aggravating
    circumstances, it could not “reweigh the aggravating and
    mitigating evidence” to determine whether this error was
    harmless. Id at 656. The court vacated the two death
    sentences and remanded for a second penalty-phase hearing.
    
    Id.
    36                     SMITH V. BAKER
    The second jury was instructed:
    You are instructed that the following factors
    are circumstances by which Murder of the
    First Degree may be aggravated:
    The murder involved torture, depravity of
    mind or the mutilation of the victim.
    The State is alleging depravity of mind in the
    murder of Kristy Cox [the twelve-year-old].
    The State is alleging torture or depravity of
    mind or mutilation in the murder of Wendy
    Cox [the twenty-year-old].
    The trial court gave the second jury the same depravity-of-
    mind instruction that Smith I had declared unconstitutionally
    vague, Instruction 10, and added Instruction 11 to further
    define depravity of mind. Instruction 11 premised depravity
    of mind on the undefined phrase, “serious and depraved
    physical abuse”:
    In order to find either torture or mutilation of
    a victim you must find that there was torture
    or mutilation beyond the act of killing itself.
    In order to find depravity of mind you must
    find serious and depraved physical abuse
    beyond the act of killing itself.
    The court separately defined “torture” and “mutilate” in
    Instructions 9 and 12, but it did not further define the “serious
    and depraved physical abuse” required for depravity of mind.
    SMITH V. BAKER                         37
    The trial court instructed the second jury: “you must be
    unanimous in your finding as to the aggravating
    circumstance,” but it did not instruct the jury that it had to be
    unanimous as to the underlying theory supporting the
    aggravating circumstance (torture, mutilation, or depravity of
    mind). During defense counsel’s closing argument, the trial
    court interrupted counsel to stress that there was only one
    statutory aggravating circumstance alleged, and that it had
    three subparts:
    to the extent that Mr. Evans is saying that
    there may be some confusion as to whether
    there is one aggravating circumstance or more
    than one, he’s absolutely correct; there is only
    one aggravating circumstance that is alleged
    by the State in this case, and that is composed
    of the subparts mutilation, torture or depravity
    of mind. I’m going to correct what is a fairly
    broad instruction, which is Instruction
    Number 7, to specifically say, “The State has
    alleged that an aggravating circumstance is
    present in this case,” so there can be no doubt
    that it is one aggravating circumstance with
    three subparts. One of those subparts is
    related to one of the victims or is alleged by
    the State with reference to one of the victims,
    all three of the subparts are alleged with
    reference to the other victim; but it is only one
    total aggravating circumstance.
    Smith II, 
    953 P.2d at
    266 n.4. In its closing, the prosecution
    argued to the second jury that “if . . . you are satisfied beyond
    a reasonable doubt that an aggravating factor exists, and it
    doesn’t have to be all of the parts of the circumstance, it can
    38                     SMITH V. BAKER
    be one, in the case of Kristy, or one or two or three in the case
    of Wendy[.]” The second jury found “depravity of mind” as
    to Kristy’s murder, and “depravity of mind” and “mutilation”
    for Wendy’s murder, and it reimposed the death penalty for
    both murders.
    Smith challenged Instructions 10 and 11 on direct appeal
    from the second sentencing hearing, and Smith II invalidated
    the depravity instructions again. The Nevada Supreme Court
    observed “[s]ince Robins, this court has upheld sentences of
    death based on depravity of mind only where there has been
    evidence of mutilation or of torture.” 
    Id. at 266
    . The court
    explained that to the extent “Smith I may have created some
    confusion on the issue, depravity of mind, as an aggravator,
    may only be relied upon where evidence of torture or
    mutilation exists.” 
    Id.
     at 266 n.3. Smith II held that “jury
    instruction [11] is a departure from what this court has
    previously determined is constitutionally acceptable,” i.e., it
    did not conform to the standard the Nevada Supreme Court
    adopted in Robins. 
    Id. at 267
    .
    Because the second jury had “no guidance” as to what
    constituted “serious and depraved physical abuse,” Smith II
    concluded “the jury instruction on depravity of mind failed to
    properly channel the jury’s discretion in connection with the
    charges [] stemming from Kristy’s death. An aggravating
    circumstance based on depravity of mind must include torture
    or mutilation beyond the act of killing itself.” 
    Id. at 267
    (citations omitted). For Kristy’s murder, depravity of mind
    was the State’s sole theory supporting a death-eligible
    aggravator. Accordingly, the Nevada Supreme Court
    reversed the death sentence imposed for Kristy’s murder and
    imposed a sentence of life imprisonment without the
    possibility of parole. 
    Id.
    SMITH V. BAKER                       39
    This ruling left the aggravating circumstance in Wendy’s
    murder as the sole support for the death penalty. The second
    jury checked boxes next to “depravity of mind” and
    “mutilation” for Wendy’s murder, and the Nevada Supreme
    Court affirmed the death penalty based on the jury’s finding
    of mutilation in Wendy’s case. The court concluded that the
    instructions for mutilation were constitutionally sound and
    that sufficient evidence supported the finding, beyond a
    reasonable doubt, that Wendy’s murder involved mutilation.
    
    Id.
     at 267–68. The court did not address whether there was
    indication that the jury unanimously decided upon mutilation.
    C. Stromberg Error
    Smith argues that the Nevada Supreme Court’s decision
    to uphold the death verdict for Wendy’s murder was contrary
    to clearly established federal law because it was impossible
    to tell whether the jury unanimously found mutilation. 
    Nev. Rev. Stat. § 200.033
    (8). The State responds that the
    depravity instruction was constitutionally sound under federal
    law, and that the rule the Nevada Supreme Court set forth in
    Robins is a state law requirement that is immaterial to relief
    under § 2254(d).
    A conviction is subject to challenge where a jury was
    instructed on alternative theories of guilt and it may have
    relied on an invalid one. Hedgpeth v. Pulido, 
    555 U.S. 57
    , 58
    (2008) (per curiam) (citing Stromberg v. California, 
    283 U.S. 359
     (1931)). In Hedgpeth, the Supreme Court observed that
    Yates v. United States, 
    354 U.S. 298
     (1957) extended
    Stromberg’s rule to convictions based on multiple theories of
    guilt where it is shown that one of the prosecution’s theories
    was not unconstitutional but was legally flawed. See
    Hedgpeth, 
    555 U.S. at 60
    . Such is the case here. In Smith II,
    40                    SMITH V. BAKER
    the Nevada Supreme Court invalidated the depravity-of-mind
    instructions used at Smith’s second penalty hearing, and we
    do not second-guess that determination. Smith II, 
    953 P.2d at 267
    ; see Estelle v. McGuire, 
    502 U.S. 62
    , 68 (1991)
    (observing “it is not the province of a federal habeas court to
    reexamine state-court determinations on state-law
    questions”). The State’s argument that the depravity-of-mind
    instructions comported with federal law amounts to
    disagreement with the degree of specificity the Nevada
    Supreme Court requires for its statutory aggravator. The
    State fails to explain why we would question the Nevada
    Supreme Court’s state law requirement.
    The jury was not instructed that it must agree on which of
    the three underlying theories supported the statutory
    aggravator, or that, per Robins, it must find evidence of
    mutilation or torture to find depravity of mind. We can see
    no other clues in the record—such as jury polling—indicating
    whether the jury unanimously agreed on mutilation. From the
    jury’s check marks next to “depravity” and “mutilation” on
    the special verdict form pertaining to Wendy’s murder, it is
    impossible to tell whether the jury split their votes between
    the invalid depravity theory and the valid mutilation theory.
    We therefore conclude that Smith demonstrated Stromberg
    error. See Hedgpeth, 
    555 U.S. at 58
    .
    In Valerio v. Crawford, an en banc panel of our court
    reviewed a jury’s death verdict premised on two statutory
    aggravators, one unconstitutionally vague and one
    permissible. 
    306 F.3d 742
    , 759 (9th Cir. 2002) (en banc).
    Our en banc court ruled that “[a] state appellate court cannot
    ‘affirm a [trial] court without a thorough analysis of the role
    an invalid aggravating factor played in the sentencing
    process.’” 
    Id.
     (quoting Stringer v. Black, 
    503 U.S. 222
    , 230
    SMITH V. BAKER                        41
    (1992)). The court announced three avenues by which a state
    appellate court can engage in close appellate scrutiny of an
    invalid aggravator and affirm imposition of the death penalty.
    
    Id.
     First, a state appellate court may affirm by finding the
    error harmless under the standard set forth in Chapman v.
    California, 
    386 U.S. 18
     (1967). Valerio, 
    306 F.3d at 756
    . To
    do so, the state appellate court must conclude, beyond a
    reasonable doubt, that the same result would have been
    obtained without relying on the invalid aggravator. 
    Id.
     Here,
    the State conceded at oral argument before our court, that
    Smith II did not engage in a Chapman harmless error
    analysis.
    Valerio’s second method for affirming a death verdict
    where a jury may have relied on an invalid aggravator
    instruction is to re-weigh the aggravating and mitigating
    evidence pursuant to Clemons v. Mississippi, 
    494 U.S. 738
    (1990). Valerio, 
    306 F.3d at 757
    . Clemons described that a
    state appellate court may set aside an invalid aggravator and
    re-weigh the remaining aggravating and mitigating factors to
    determine whether an invalid instruction was harmless. 
    Id.
    But it is clear the Smith II court did not re-weigh aggravating
    and mitigating evidence because 
    Nev. Rev. Stat. § 200.033
    (8)
    was the single aggravating circumstance alleged in Smith’s
    case.
    Valerio’s third proffered method is a Walton analysis, see
    Walton v. Arizona, 
    497 U.S. 639
     (1990), in which a state
    appellate court “act[s] as a primary factfinder” by applying a
    corrected instruction to the evidence and determining de novo
    whether the state’s evidence satisfied the aggravator. Valerio,
    
    306 F.3d at 757
    . This option was also unavailable in Smith’s
    case because, as we explained in Valerio, a state appellate
    42                     SMITH V. BAKER
    court may not undertake a Walton analysis if the penalty-
    phase factfinder was a jury. 
    Id. at 758
    .
    The Nevada Supreme Court failed to undertake any of the
    options explained in Valerio, so there is no question that it did
    not engage in close appellate scrutiny of the invalid depravity
    instructions used at Smith’s second penalty hearing. Instead,
    the state court relied on its conclusion that the evidence was
    sufficient to support the mutilation theory. Smith II, 
    953 P.2d at
    267–68. But as the court recognized in Smith I, 
    881 P.2d at 655
    , sufficiency of the evidence is not the issue; Smith’s
    argument is that the jury may not have been unanimous.
    Valerio held that the resulting Stromberg error is not
    structural, so we do not assume prejudice. Rather, we assess
    the effect of the invalid depravity instructions and resulting
    Stromberg error under the harmless error standard set forth in
    Brecht v. Abrahamson, 
    507 U.S. 619
     (1993). See Hedgpeth,
    
    555 U.S. at
    61–62 (concluding that a Brecht harmless error
    analysis is appropriate where the jury was instructed on
    alternative theories of guilt and may have relied on an invalid
    one); Valerio, 
    306 F.3d at
    760–61.
    Brecht’s harmlessness test asks whether we are left with
    “grave doubt” about 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.” Valerio,
    
    306 F.3d at 762
    ; see also Hedgpeth, 
    555 U.S. at 58
    . As the
    Nevada Supreme Court stated in Smith II, the narrowed
    construction of depravity of mind based on 
    Nev. Rev. Stat. § 200.033
    (8) “requir[es] torture, mutilation or other serious
    and depraved physical abuse beyond the act of killing itself,
    as a qualifying requirement to an aggravating circumstance
    SMITH V. BAKER                              43
    based in part upon depravity of mind.” Smith II, 
    953 P.2d at 266
     (quoting Robins, 
    798 P.2d at 570
    ). We therefore
    compare the result obtained with Instructions 10 and 11
    against “what the verdict would have been if the [Robins]
    instruction had been given.” Valerio, 
    306 F.3d at 762
    .
    The juxtaposition of the evidence pertaining to Kristy’s
    murder and the evidence pertaining to Wendy’s murder leads
    us to conclude that the invalid instruction did not have a
    substantial and injurious effect on the jury’s verdict. The
    second jury heard the medical examiner’s testimony about the
    extent of both of the murdered step-daughters’ wounds. The
    medical examiner explained that Kristy, age twelve, suffered
    four wounds—three to the head, and one to the neck—and
    that there was a laceration on her finger. The medical
    examiner then moved on to Wendy’s much more substantial
    injuries, and told the jury that Wendy suffered thirty-two
    blunt-force wounds to her head (including skull fractures),
    and that the extensive wounds Wendy suffered demonstrated
    that she fought for her life. The examiner testified that
    Wendy’s wounds appeared to have been inflicted with the
    claw end of a hammer, and that her left ear was nearly cut in
    two. The examiner found prominent abrasions on Wendy’s
    neck, and that she had defensive wounds on her hands.
    Despite these brutal injuries, the actual cause of Wendy’s
    death was strangulation. The medical examiner opined that
    Smith likely used hammer blows to subdue his victims and
    then strangled them to death.2
    2
    On appeal, the State argued there was “overwhelming evidence” of
    mutilation because Wendy was attacked with the claw end of a hammer.
    The State overlooks that the jury was instructed that, under Nevada law,
    mutilate “means to cut off or permanently destroy a limb or essential part
    of the body or to cut off or alter radically so as to make imperfect,” and
    44                         SMITH V. BAKER
    The numerous blunt-force wounds that fractured Wendy’s
    skull, coupled with the medical examiner’s testimony that a
    large laceration inside her ear almost cut her outer ear in two,
    do not leave us with grave doubt about whether the jury
    would have unanimously found mutilation. Photos and the
    medical examiner’s testimony graphically illustrated that the
    wounds Wendy suffered radically altered essential parts of
    her body, and we are confident the invalid instruction did not
    have a substantial and injurious effect on the jury’s verdict.
    V. Conclusion
    Smith persuasively argued that the performance of his
    second penalty-phase counsel was deficient for failing to
    investigate mental health mitigation evidence, but he has not
    shown that he was prejudiced. This claim was defaulted.
    Separately, we conclude that the Stromberg error in Smith’s
    jury instructions was harmless under Brecht. We decline to
    grant a Certificate of Appealability for any of the other claims
    Smith briefed, and affirm the district court’s judgment.
    AFFIRMED.
    that “to find . . . mutilation of a victim you must find that there was . . .
    mutilation beyond the act of killing itself.” In other words, it was the
    extent of Wendy’s injuries that determined whether mutilation applied, not
    the means used to injure her.
    SMITH V. BAKER                    45
    N.R. SMITH, Circuit Judge, concurring:
    The district court’s order dismissing Joseph Smith’s
    federal habeas petition should be affirmed. The majority got
    it right in: (1) finding that Smith failed to show he was
    prejudiced by the lack of an evidentiary hearing, and
    concluding that the district court did not abuse its discretion
    by dismissing his Martinez1 claim without holding an
    evidentiary hearing; (2) certifying Smith’s eighth claim,
    which alleges a violation of the rule set out in Stromberg v.
    California, 
    283 U.S. 359
     (1931), and concluding that the
    Stromberg error in Smith’s jury instruction was harmless; and
    (3) declining to certify Smith’s remaining uncertified claims.
    The district court’s judgment dismissing Smith’s
    ineffective assistance of counsel (“IAC”) claim as
    procedurally barred should also be affirmed. However, I
    arrive at that conclusion via a different route than the
    majority. Unlike the majority, I believe Smith’s counsel’s
    performance during the second penalty-phase hearing was not
    deficient under the first prong of Strickland v. Washington,
    
    466 U.S. 668
     (1984), and therefore find his IAC claim
    insubstantial. I write separately to address this point.
    To establish cause and prejudice to excuse the procedural
    default of his IAC claim, Smith must show, inter alia, that:
    “(1) the claim of ‘ineffective assistance of trial counsel’ was
    a ‘substantial’ claim; [and] (2) the ‘cause’ consisted of there
    being ‘no counsel’ or only ‘ineffective’ counsel during the
    state collateral review proceeding.” Trevino v. Thaler,
    
    569 U.S. 413
    , 423 (2013) (quoting Martinez, 
    566 U.S. at
    13–18).
    1
    Martinez v. Ryan, 
    566 U.S. 1
     (2012).
    46                    SMITH V. BAKER
    With respect to Martinez Step One, Smith must
    “demonstrate that the underlying ineffective-assistance-of-
    trial-counsel claim is a substantial one, which is to say that
    the prisoner must demonstrate that the claim has some merit.”
    Martinez, 
    566 U.S. at 14
    . To establish the merits of an IAC
    claim, “[t]he Strickland standard requires a showing of both
    deficient performance and prejudice.” Rodney v. Filson,
    
    916 F.3d 1254
    , 1260 (9th Cir. 2019) (citing Strickland,
    
    466 U.S. at 687
    ).
    A.
    Deficient performance under Strickland is performance
    that falls “below an objective standard of reasonableness.”
    
    466 U.S. at 688
    . “In any case presenting an ineffectiveness
    claim, the performance inquiry must be whether counsel’s
    assistance was reasonable considering all the circumstances.”
    
    Id.
     (emphasis added). Although “[p]revailing norms of
    practice as reflected in American Bar Association standards”
    may serve as “guides to determining what is reasonable, . . .
    they are only guides.” 
    Id.
     This is so, because no standards or
    set of rules “can satisfactorily take account of the variety of
    circumstances faced by defense counsel or the range of
    legitimate decisions regarding how best to represent a
    criminal defendant.” 
    Id.
     at 688–89.
    Our “scrutiny of counsel’s performance must be highly
    deferential,” because “[i]t is all too tempting for a defendant
    to second-guess counsel’s assistance after . . . [an] adverse
    sentence, and it is all too easy for a court, examining
    counsel’s defense after it has proved unsuccessful, to
    conclude that a particular act or omission of counsel was
    unreasonable.” 
    Id. at 689
    . Thus, “[a] fair assessment of
    attorney performance requires that every effort be made to
    SMITH V. BAKER                          47
    eliminate the distorting effects of hindsight, to reconstruct the
    circumstances of counsel’s challenged conduct, and to
    evaluate the conduct from counsel’s perspective at the time.”
    
    Id.
     Because of the difficulty in conducting this evaluation, we
    “must indulge a strong presumption that counsel’s conduct
    falls within the wide range of reasonable professional
    assistance.” Id.; see Cullen v. Pinholster, 
    563 U.S. 170
    , 196
    (2011) (noting that “Strickland specifically commands that a
    court ‘must indulge [the] strong presumption’ that counsel
    ‘made all significant decisions in the exercise of reasonable
    professional judgment’” (alteration in original) (quoting
    Strickland, 
    466 U.S. at
    689–90)).
    Smith argues, and the majority agrees, that Smith’s
    counsel’s performance during the second penalty-phase
    hearing was deficient, because counsel failed to investigate
    Smith’s mental health and retain an expert to opine thereon.
    Opinion at 26–29. I disagree.
    The majority correctly notes that counsel’s argument at
    the April 1996 penalty hearing was predicated on character
    evidence similar to that presented at the first trial, and counsel
    did not arrange or request a mental health evaluation of
    Smith. Id. at 25. However, the reason no mental health
    evaluation was arranged or requested is because Smith
    refused to cooperate with, or submit to, any mental health
    evaluation. Indeed, Donald York Evans, Smith’s first-chair
    counsel at the second penalty hearing, stated:
    When I first was appointed to represent Joe, I
    wanted to do a complete psychological work-
    up on him. I discussed the idea with Joe, and
    he refused to submit to any testing. He
    insisted he was not crazy. Joe would have
    48                    SMITH V. BAKER
    none of it, and so I did not press the issue.
    There was no value in getting a mental health
    expert if Joe was not going to participate. I
    wasn’t confident that I would get anything I
    could use from an evaluation anyway. I
    suspected he had schizoid tendencies and a
    high IQ but that was just my guess and he
    wouldn’t participate in an evaluation.
    In Strickland, the Supreme Court recognized that “[t]he
    reasonableness of counsel’s actions may be determined or
    substantially influenced by the defendant’s own statements or
    actions. Counsel’s actions are usually based, quite properly,
    on informed strategic choices made by the defendant and on
    information supplied by the defendant.” 
    466 U.S. at 691
    (emphasis added).
    In Campbell v. Kincheloe, we applied the above-stated
    principle in a habeas action brought by an inmate convicted
    of three counts of aggravated murder and sentenced to death.
    
    829 F.2d 1453
    , 1456–57, 1463 (9th Cir. 1987). There, the
    defendant argued that his attorneys’ performance was
    deficient, because they “fail[ed] to interview his family and
    childhood friends, classmates, and teachers.” 
    Id. at 1463
    .
    However, the defendant had “specifically requested his
    attorneys not to contact members of his family.” 
    Id.
     Drawing
    on the Supreme Court’s statement that “[t]he reasonableness
    of counsel’s actions may be determined or substantially
    influenced by the defendant’s own statements or actions,”
    Strickland, 
    466 U.S. at 691
    , we held that trial counsels’
    performance was not deficient, because they abided by the
    defendant’s wishes and the defendant’s wishes were
    consistent with “the professional judgment of his attorneys
    that such interviews were unnecessary and would not have
    SMITH V. BAKER                        49
    made any difference in the context of the case.” Campbell,
    
    829 F.2d at
    1463–64.
    Relying on the principle discussed in Strickland and
    Campbell, other courts have declined to find counsel’s
    performance deficient where a defendant refuses to cooperate
    with a certain line of investigation and subsequently alleges
    error based on the attorney’s incomplete investigation into the
    frustrated line of inquiry. See, e.g., Coleman v. Mitchell,
    
    244 F.3d 533
    , 545–56 (6th Cir. 2001) (finding counsel’s
    performance not deficient where, inter alia, the defendant
    “did not cooperate with counsel . . . and refused to submit to
    further psychological or psychiatric testing”); Owens v.
    Guida, 
    549 F.3d 399
    , 405–06, 411–12 (6th Cir. 2008)
    (finding counsel’s performance not deficient where
    “[c]ounsel could have reasoned that additional investigation
    would be of little use because [the defendant’s] own actions
    [(e.g., refusing to cooperate with mental health examiners)]
    shut off avenues for mitigation”); Johnston v. Singletary,
    
    162 F.3d 630
    , 642 (11th Cir. 1998) (per curiam) (finding
    counsels’ performance not deficient where, “despite his
    lawyers’ efforts to have [the defendant] evaluated by a . . .
    mental health expert[, the defendant] was steadfast in his
    resistance to meeting with this expert”); Thompson v.
    Wainwright, 
    784 F.2d 1103
    , 1106 (11th Cir. 1986)
    (recognizing that a defendant “cannot blame the lack of
    additional psychiatric examinations on incompetent counsel”
    where the defendant refused to “cooperate” with the previous
    psychiatrist).
    The reasonableness of Smith’s penalty-phase counsel’s
    decision not to retain a mental health expert is “substantially
    influenced by [Smith’s] own statements [and] actions.”
    50                         SMITH V. BAKER
    Strickland, 
    466 U.S. at 691
    .2 Evans discussed the possibility
    of obtaining a psychological evaluation of Smith, but Smith
    refused to submit to any such examination and adamantly
    insisted that he had no mental health issues. Smith’s
    actions—i.e., his refusal to cooperate with, and submit to, any
    mental health evaluation—provided “counsel reason to
    believe that pursuing [a mental health] investigation[ ] would
    be fruitless,” because any expert report prepared without
    Smith’s participation would, in counsel’s own words, be of
    little or “no value.” See Strickland, 
    466 U.S. at 691
    ; see also
    Johnston, 
    162 F.3d at 642
     (“[W]hen the strategy an attorney
    might otherwise pursue is virtually foreclosed by his client’s
    unwillingness to facilitate that strategic option, it is difficult
    for [a] court, in a collateral proceeding, to characterize as
    ‘unreasonable’ counsel’s decision to abandon that otherwise
    preferable strategy.”). Smith cannot now complain that his
    counsel acted unreasonably by failing to investigate and
    present mental health evidence at his sentencing when it was
    2
    The majority argues that I conflate Strickland’s prongs one and two,
    but I consider Smith’s “own statements [and] actions” in determining
    whether Smith’s counsel’s performance was deficient. Strickland,
    
    466 U.S. at 691
    . Indeed, the majority contends that, “[a]t step one, we
    consider whether Smith’s lawyers’ performance fell below an objectively
    reasonable standard, and that question is largely a function of the choices
    that were available to counsel.” Opinion at 28.
    Contrary to the majority’s argument, that is precisely what I have
    done here. Put simply, Smith’s refusal to cooperate with, and submit to,
    any mental health evaluation presented counsel with two choices. Counsel
    could either retain a mental health expert to prepare an evaluation based
    entirely on the record—which counsel recognized would be of little or no
    value—or, considering Smith’s refusal, counsel could reasonably choose
    not to retain a mental health expert to render a “compromised” opinion
    that would “necessarily [be] vulnerable to cross examination.” Opinion
    at 30.
    SMITH V. BAKER                      51
    Smith’s own actions that effectively rendered any such
    evidence of “no value.” See Strickland, 
    466 U.S. at 691
    ;
    Johnston, 
    162 F.3d at 642
    .
    Both Smith and the majority argue that an expert could
    have prepared a report without Smith’s participation based
    solely on the expert’s review of the record—a report similar
    to that prepared by Dr. Lundberg-Love in 2007. But, as
    discussed, Smith’s counsel recognized that a report prepared
    without Smith’s participation and based solely on a review of
    the record would be of “no value.” The majority apparently
    reaches the same conclusion, stating that “any expert’s
    opinion [prepared without Smith’s cooperation] would have
    been compromised and necessarily vulnerable to cross
    examination.” Opinion at 30 (emphasis added). Thus, counsel
    exercised reasonable professional judgment in declining to
    retain an expert to render a compromised opinion that would
    have been of little or no value. See Owens, 
    549 F.3d at 412
    (finding counsel’s performance not deficient where
    “[c]ounsel could have reasoned that additional investigation
    would be of little use because [the defendant’s] own actions
    [(e.g., refusing to cooperate with mental health examiners)]
    shut off avenues for mitigation”); cf. Jeffries v. Blodgett,
    
    5 F.3d 1180
    , 1198 (9th Cir. 1993) (recognizing that where “a
    defendant preempts his attorney’s strategy” with his or her
    actions or statements, “no claim for ineffectiveness can be
    made” (quoting Mitchell v. Kemp, 
    762 F.2d 886
    , 889 (11th
    Cir. 1985))).
    Moreover, even assuming Smith would have participated
    in an evaluation, counsel was not “confident that [he] would
    get anything [he] could use from [the] evaluation.” This
    judgment is reasonable in light of the 1992 competency
    report, which was based on a two-day evaluation of Smith
    52                    SMITH V. BAKER
    and several psychometric tests and found that, despite a
    potential mixed personality disorder, Smith was “an
    intelligent individual without any serious cognitive or
    affective psychological disorder[s]” and exhibited no “acute
    or Axis I mental disorders.” The report concluded that Smith
    was competent to stand trial and “competent at the time of the
    alleged offense.”
    Smith and the majority also rely on certain American Bar
    Association (“ABA”) standards to show counsel acted
    unreasonably. Those standards require counsel to investigate
    “all reasonably available mitigating evidence,” ABA
    Guidelines 11.4.1(C) (1989), including any evidence of a
    defendant’s mental illness, see id. at 11.4.1(D)(2)(C).
    However, although the ABA standards may “guide[]” the
    inquiry into whether Smith’s counsel’s performance was
    reasonable, “they are only guides.” Strickland, 
    466 U.S. at 688
     (emphasis added). As noted above, “[t]he reasonableness
    of counsel’s actions may be determined or substantially
    influenced by the defendant’s own statements or actions.” 
    Id. at 691
     (emphasis added). That is precisely what happened
    here. Smith’s actions “substantially influenced” the
    reasonableness of his counsel’s decision not to conduct a
    more in-depth investigation into Smith’s mental health and
    mitigated any guidance gleaned from the ABA standards. See
    id.; see also Jeffries, 
    5 F.3d at
    1197–98 (finding counsel’s
    performance not deficient where counsel acquiesced in the
    defendant’s decision “not to present any witnesses in
    mitigation,” which contravened ABA standards).
    Considering “all of the circumstances” and indulging “a
    strong presumption that counsel’s conduct falls within the
    wide range of reasonable professional assistance,” Strickland,
    
    466 U.S. at 689, 691
    , Smith’s second penalty-phase counsel’s
    SMITH V. BAKER                         53
    judgment not to engage an expert to opine on Smith’s mental
    health is reasonable in light of Smith’s refusal to cooperate
    with any mental health expert. See Owens, 
    549 F.3d at 406
    ,
    411–12 (finding counsel’s performance not deficient where
    “[c]ounsel could have reasoned that additional investigation
    would be of little use because [the defendant’s] own actions
    [(e.g., refusing to cooperate with mental health examiners)]
    shut off avenues for mitigation”); Johnston, 
    162 F.3d 642
    (finding counsel’s performance not deficient where, “despite
    his lawyers’ efforts to have [the defendant] evaluated by a . . .
    mental health expert[, the defendant] was steadfast in his
    resistance to meeting with this expert”).
    Therefore, Smith’s IAC claim is insubstantial, because it
    lacks merit. See Martinez, 
    566 U.S. at 14
    . Because Smith
    cannot establish cause and prejudice to excuse his procedural
    default under Martinez, the district court did not err in
    holding that Smith’s IAC claim was procedurally defaulted.
    B.
    Because Smith’s second penalty-phase counsel’s
    performance was not deficient, I would not reach the
    prejudice prong of Strickland. However, assuming that
    counsel’s performance was deficient (as does the majority),
    Smith failed to show “a reasonable probability that, but for
    counsel’s unprofessional errors, the result of the proceeding
    would have been different.” Strickland, 
    466 U.S. at 694
    .