Gregory Dickens v. Charles L. Ryan

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGORY DICKENS,  No. 08-99017
Petitioner-Appellant, D.C. No.
v.  CV-01-757-PHX-
CHARLES RYAN, NVW
Respondent-Appellee.
 OPINION
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted
February 10, 2011—Pasadena, California
Filed August 3, 2012
Before: Stephen Reinhardt, Johnnie B. Rawlinson, and
N. Randy Smith, Circuit Judges.
Opinion by Judge N.R. Smith;
Dissent by Judge Reinhardt
8599
DICKENS v. RYAN 8603
COUNSEL
Jon M. Sands, Federal Public Defender, Phoenix, Arizona, for
petitioner-appellant Gregory Dickens.
John Pressley Todd, Assistant Attorney General, Capital Liti-
gation Section, Phoenix, Arizona, for respondent-appellee
Dora B. Schriro.
OPINION
N.R. SMITH, Circuit Judge:
Gregory Scott Dickens, an Arizona state prisoner, appeals
the district court’s denial of his 28 U.S.C. § 2254 habeas cor-
pus petition. Dickens was sentenced to death on each of two
counts of felony murder for the 1991 killings of Bryan and
Laura Bernstein. In this petition, Dickens challenges his capi-
tal sentences, arguing that (1) the Arizona Supreme Court’s
application of Enmund v. Florida, 458 U.S. 782 (1982), and
Tison v. Arizona, 481 U.S. 137 (1987), was unreasonable; (2)
8604 DICKENS v. RYAN
the Arizona Supreme Court based its decision on an unreason-
able determination of the facts; and (3) his trial counsel ren-
dered ineffective assistance by failing to investigate and
present certain mitigating evidence during sentencing.1
Regarding Dickens’s first two arguments, we must affirm,
because (1) the Arizona Supreme Court’s application of
Enmund and Tison to the facts of this case was not objectively
unreasonable and (2) the Arizona Supreme Court did not base
its decision on a clearly erroneous determination of the facts.
As for Dickens’s third argument, although we agree that
Dickens defaulted on his ineffective assistance of counsel
claim by failing to fairly present the claim to the Arizona
courts, we vacate and remand to allow the district court to
reassess whether Dickens has established cause and prejudice
for the procedural default under Martinez v. Ryan, 132 S. Ct.
1309 (2012).
Background2
In January 1990, while working as a counselor at the Oak
Grove Institute in Temecula, California, Dickens became
acquainted with then fourteen-year-old Travis Amaral. Ama-
ral lived at Oak Grove, which is a placement center for violent
juveniles. Dickens worked with Amaral and learned that he
was a “high risk” patient with a “violent and explosive tem-
per.” Dickens also learned that Amaral battered a nurse and
frequently bragged about carrying guns and being involved in
several murders. Dickens quit working at Oak Grove in
March 1990 but maintained his friendship with Amaral.
1
Dickens raises other uncertified issues on appeal, which we address in
a separate Memorandum Disposition filed concurrently with this Opinion.
2
These facts are drawn substantially from the Arizona Supreme Court’s
opinion in State v. Dickens, 926 P.2d 468, 474-75 (Ariz. 1996) (in banc).
We presume the correctness of the Arizona court’s findings unless rebut-
ted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
DICKENS v. RYAN 8605
In early September 1991, a few days after Dickens moved
to Yuma, Arizona, Amaral contacted Dickens and explained
that he was running away from home. Hearing this news,
Dickens purchased a bus ticket for Amaral to travel to Yuma.
Amaral arrived in Yuma on September 8, 1991. He spent the
next several days with Dickens near the Colorado River.
While recreating on the river, Dickens showed Amaral a .38-
caliber revolver he had recently acquired. At some point dur-
ing their time together, Amaral attempted to intimidate Dick-
ens by pointing the loaded revolver at Dickens’s head.
Dickens paid for Amaral’s food and transportation during
his visit to Yuma. However, after a couple of days, Dickens
was running low on cash. Therefore, on September 10, 1991,
while eating dinner at a Hardee’s restaurant in Yuma, Dickens
and Amaral discussed “ways to get more money.” Dickens
suggested they plan a robbery. They flipped a coin to decide
who would conduct the first robbery, and Amaral won. Dick-
ens gave Amaral a choice of several locations to commit the
robbery, including a convenience store and a highway rest
stop. Amaral chose the rest stop, because it was “out of the
way,” less busy, and “easier.”
After leaving the restaurant, Dickens and Amaral drove to
a rest area on eastbound Interstate 8, east of Yuma. Dickens
removed his .38-caliber revolver from the glove compartment
and placed it on the seat of the vehicle. While waiting for the
appropriate circumstances to conduct the robbery, an argu-
ment ensued between the two. During the argument, Amaral
again pointed the revolver at Dickens’s head to intimidate
him. After waiting and watching at the rest area for approxi-
mately three hours, Dickens and Amaral saw Bryan and Laura
Bernstein3 drive into the parallel westbound rest area across
3
Bryan and Laura were both 22 years old. Married for three years and
graduates of Cornell University, they were traveling through Arizona en
route to UCLA where they both received fellowships to undertake gradu-
ate work.
8606 DICKENS v. RYAN
the interstate. Dickens nodded his head and either handed
Amaral the handgun or watched him remove it from the seat.
They agreed that, after Amaral robbed the Bernsteins, Amaral
would run down the westbound ramp of the rest area where
Dickens would pick him up.
Sitting in his truck on the opposite side of the highway,
Dickens watched Amaral as he crossed the interstate and
approached the Bernsteins. When he reached the Bernsteins,
Amaral asked if they had the time. Laura responded, “9:17
[p.m.].” Amaral then pointed the gun at Bryan and demanded
his wallet, which Bryan surrendered. Amaral then asked
Laura for her wallet, but she did not have one. Amaral
ordered the Bernsteins to walk past their car and turn around.
From the opposite side of the highway, Dickens observed
Amaral moving the Bernsteins across the beams of light from
their headlamps. Amaral asked if they were ready to die, then
shot Laura point blank in the head. Dickens saw the bright
flash of the gun as Amaral shot Laura. Laura fell to the
ground, and Bryan crouched down over her. Amaral re-
cocked the revolver, pointed it at Bryan, and shot him in the
head.
After seeing that Amaral had robbed and shot the Bern-
steins, Dickens drove across the median and through the rest
area. No evidence suggests Dickens stopped to aid the Bern-
steins, called for emergency medical assistance, or otherwise
notified the authorities. Dickens picked Amaral up on the
westbound side of highway and asked, “Do you have the wal-
let?” Amaral replied that he did and handed the wallet to
Dickens. After searching the wallet and returning it to Ama-
ral, Dickens explained that he had driven through the rest area
to make sure “everything was taken care of.” They then drove
to the home of Dickens’s brother, where Amaral removed
cash, traveler’s checks, and one credit card from Bryan’s wal-
let. Dickens and Amaral burned the wallet and its remaining
contents. They split the cash, Amaral pocketed the credit card,
and they later destroyed the traveler’s checks.
DICKENS v. RYAN 8607
At approximately 9:40 p.m., a deputy sheriff drove into the
rest area and found the Bernsteins lying on the ground in front
of their vehicle. Laura was dead. Bryan, suffering from a gun-
shot wound to the head, was semiconscious, thrashing around,
and moaning in pain. Bryan told the deputy that he had been
threatened with a gun, attacked, and thought he was shot.
Bryan died shortly thereafter.
On September 11 (the morning following the murders),
Amaral unsuccessfully attempted to use Bryan’s credit card at
a local K-Mart. That evening, Dickens rented a room at a
Motel 6, where he and Amaral spent the night. Early the next
morning, Dickens and Amaral parted company. Dickens
drove to Carlsbad, California, and Amaral went back to his
mother’s house.
They met up again in March 1992. At that time, Amaral
moved in with Dickens for one to two weeks in a San Diego,
California apartment. Amaral’s mother, finding that Amaral
had left her home, reported Amaral as a runaway and gave
Dickens’s address to the police. The police conducted an
investigation into sex abuse charges against Dickens. San
Diego police officers eventually arrested Dickens on charges
of sexually abusing Amaral (and other boys) and assault with
a deadly weapon.4 During an interview concerning the alleged
abuse, Amaral told officers that he and Dickens had been
involved in a double homicide in Yuma.
In April 1992, after further investigation, Dickens was
indicted for two counts of premeditated first-degree murder,
two counts of felony first-degree murder, one count of con-
spiracy to commit first-degree murder, one count of conspir-
acy to commit armed robbery, and two counts of armed
robbery. After a trial, he was acquitted of premeditated mur-
der and conspiracy to commit murder but convicted of the fel-
ony murders and armed robberies of Bryan and Laura
4
This information was not provided to the jury.
8608 DICKENS v. RYAN
Bernstein, as well as conspiracy to commit armed robbery.
Finding no mitigating factors sufficient to call for leniency,
the district court sentenced Dickens to death on the felony
murder counts.5 The court further ordered that, if the sen-
tences were ever reduced, the sentences would be served con-
secutively. The court also sentenced Dickens to fourteen
years’ imprisonment on the conspiracy and armed robbery
convictions, to be served consecutively to the death sentences.
Dickens applied for post-conviction relief from the trial
court, which the trial court denied. Dickens then appealed his
conviction and sentence to the Arizona Supreme Court. That
court affirmed, noting that overwhelming evidence supported
the conviction and capital sentences and emphasizing that
“this is not a case of lingering doubt.” State v. Dickens, 926
P.2d 468, 493 (Ariz. 1996) (in banc). Dickens subsequently
filed a petition for writ of habeas corpus under 28 U.S.C.
§ 2254 with the U.S. District Court for the District of Arizona,
which the district court denied. We review de novo the district
court’s order denying the petition. Estrada v. Scribner, 512
F.3d 1227, 1235 (9th Cir. 2008). Because the relevant state
court determination for a habeas petition is the last reasoned
state court decision, our review focuses on the Arizona
Supreme Court’s decision. See Delgadillo v. Woodford, 527
F.3d 919, 925 (9th Cir. 2008) (citing Ylst v. Nunnemaker, 501
U.S. 797, 804-06 (1991)).
5
The district court sentenced Dickens to death prior to the Supreme
Court’s decision in Ring v. Arizona, 536 U.S. 584 (2002), that juries
(rather than courts) must determine the presence or absence of aggravating
factors meriting imposition of the death penalty. The procedural rule
announced in Ring “does not apply retroactively to cases already final on
direct review.” Schriro v. Summerlin, 542 U.S. 348, 358 (2004).
DICKENS v. RYAN 8609
I. The Arizona Supreme Court’s application of
Enmund/Tison to the facts of this case was not objec-
tively unreasonable
Dickens argues the Arizona Supreme Court’s application of
federal law regarding capital sentences for felony-murder
defendants was unreasonable and therefore warrants habeas
relief. He specifically contends that his contribution to the
murders of Bryan and Laura Bernstein was insufficient to
warrant the death penalty. To obtain relief under the Antiter-
rorism and Effective Death Penalty Act of 1996 (“AEDPA”),
Pub. L. No. 104-132, 110 Stat. 1214, Dickens must show that
the Arizona Supreme Court’s decision (1) was “contrary to”
clearly established federal law as determined by the Supreme
Court, (2) “involved an unreasonable application of such
law,” or (3) “was based on an unreasonable determination of
the facts in light of the record before the state court.” Har-
rington v. Richter, ___ U.S. ___, 131 S. Ct. 770, 785 (2011)
(quoting 28 U.S.C. § 2254) (internal quotation marks omit-
ted).
“A decision is ‘contrary to’ federal law when the state court
applies a rule of law different from that set forth in the hold-
ings of Supreme Court precedent or when the state court
makes a contrary determination on ‘materially indistinguish-
able’ facts.” Earp v. Ornoski, 431 F.3d 1158, 1182 (9th Cir.
2005) (quoting Williams v. Taylor, 529 U.S. 362, 405-06
(2000)). “[T]o determine whether a state court failed to apply
‘clearly established Federal law’ . . . we must distinguish
between situations where a legal principle established by a
Supreme Court decision clearly extends to a new factual con-
text . . . and where it does not . . . .” Moses v. Payne, 555 F.3d
742, 753 (9th Cir. 2009). When Supreme Court “cases give no
clear answer to the question presented, . . . it cannot be said
that the state court unreasonably applied clearly established
Federal law.” Wright v. Van Patten, 552 U.S. 120, 126 (2008)
(internal quotation marks and citations omitted). “[A] federal
habeas court may not issue the writ simply because that court
8610 DICKENS v. RYAN
concludes in its independent judgment that the relevant state-
court decision applied clearly established federal law errone-
ously or incorrectly.” Lockyer v. Andrade, 538 U.S. 63, 75-76
(2003) (internal quotation marks and citation omitted).
“Rather, that application must be objectively unreasonable.”
Id. at 76.
[1] The applicable rules in this case come from Enmund,
458 U.S. 782, and Tison, 481 U.S. 137, which were both
decided prior to Dickens’s 1993 conviction. In Enmund, the
Supreme Court reversed the death sentence of a defendant
convicted under Florida’s felony-murder rule. 458 U.S. at
798. Enmund drove the getaway car in an armed robbery of
a dwelling. His accomplices murdered an elderly couple who
resisted the robbery. Id. at 784-86. The Court determined that
Enmund “did not commit the homicide, was not present when
the killing took place, and did not participate in a plot or
scheme to murder.” Id. at 795. Therefore, the Court concluded
that putting Enmund to death, “to avenge two killings that he
did not commit and had no intention of committing or caus-
ing,” would not achieve the deterrent or retributive goals of
the death penalty and was therefore unconstitutional. Id. at
800-01.6
[2] Tison created an exception to Enmund for felony-
murder defendants whose “[1] major participation in the fel-
ony committed, [2] combined with reckless indifference to
human life, is sufficient to satisfy the Enmund culpability
requirement.” 481 U.S. at 158. The defendants in Tison
6
The Enmund Court, “citing the weight of legislative and community
opinion, found a broad societal consensus, with which it agreed, that the
death penalty was disproportional to the crime of robbery-felony murder
‘in these circumstances.’ ” Tison, 481 U.S. at 147 (emphasis added) (quot-
ing Enmund, 458 U.S. at 788). However, the Court acknowledged that
“[i]t would be very different if the likelihood of a killing in the course of
a robbery were so substantial that one should share the blame for the kill-
ing if he somehow participated in the felony.’ ” Enmund, 458 U.S. at 799(emphasis added).
DICKENS v. RYAN 8611
helped their father and his cellmate—both convicted
murderers—escape from prison, armed them with shotguns,
helped flag down and kidnap a family on an isolated road,
drove the family to a remote site, and then stood by as their
father and his cellmate murdered the four family members. Id.
at 139-41. The Court distinguished Enmund, explaining that
the defendant in that case “did not actively participate in the
events leading to death (by, for example, as in the present
case, helping abduct the victims) and was not present at the
murder site.” Id. at 145. By contrast, the Tison defendants
were major participants in the felony committed because: (1)
they “actively participated in the events leading to the death
by, inter alia, providing the murder weapons and helping
abduct the victims”; (2) they were “present at the murder site,
[and] did nothing to interfere with the murders”; (3) they
“ma[de] no effort to assist the victims before, during, or after
the shooting”; (4) “after the murders [they] continued on the
joint venture”; and (5) they “could anticipate the use of lethal
force” during the commission of their crimes. Id. at 145,
151-52. Therefore, the Tison Court concluded the defendants’
participation was sufficient to warrant capital punishment. Id.
at 158.7
A. Major participation
[3] The Arizona Supreme Court determined that Dickens
was a major participant in the murder of Bryan and Laura
Bernstein, because: (1) “[t]he robberies were premeditated,
planned, and agreed on by [Dickens] and Amaral”; (2)
“[Dickens] furnished Amaral with the weapon used in the
murders or knew Amaral had the weapon with him for the
robberies”; (3) “[Dickens] drove Amaral to the scene; (4)
“[Dickens] waited while Amaral committed the robberies”;
(5) “[Dickens] picked up Amaral after the crime”; and (5)
7
The Court remanded for further proceedings to determine whether the
defendants acted with reckless disregard for human life. Tison, 481 U.S.
at 158.
8612 DICKENS v. RYAN
“[Dickens] witnessed the destruction of evidence, and failed
to report the crimes.” Dickens, 926 P.2d at 490. The Arizona
court’s application of federal law was not objectively unrea-
sonable, because Dickens’s conduct nearly matches that of the
Tison defendants. Dickens was actively involved in every
aspect of the deadly crime—planning the robbery, staking out
the crime scene, targeting the victims, arming Amaral with a
handgun,8 watching the murders, aiding Amaral’s escape,
destroying evidence, and helping Amaral evade capture.
Dickens was clearly a major participant in the crime.
[4] Nonetheless, Dickens argues his conduct was more
akin to the defendant in Enmund than to the defendants in
Tison. Most notably, he argues that Enmund and Tison require
a defendant’s immediate physical presence at the murder
scene to qualify for the death penalty. However, nowhere in
Enmund or Tison does the Supreme Court clearly establish
that “presence” at a murder scene is a mandatory prerequisite
for the death penalty. Instead, physical presence is one of sev-
eral factors relevant to the “major participation” prong of the
Tison analysis. 481 U.S. at 158. In addition to their presence
at the murder scene, the defendants in Tison were “actively
involved in every element” of the crime because, among other
things, they (1) helped plan the underlying crimes (kidnaping
and robbery), (2) provided the murder weapons, (3) made no
effort to assist the victims after the shooting, (4) helped the
perpetrators flee, and (5) continued in the criminal venture
after the murders were committed. Id. at 145, 151-52, 158.
The Tison Court never stated that one factor was more impor-
tant than another factor; it simply concluded that the defen-
8
The dissent argues that the Arizona Supreme Court did not determine
that Dickens armed Amaral. The Arizona Supreme Court noted only that
Dickens either furnished the weapon or knew Amaral had the weapon in
its “Death eligibility” discussion. Dickens, 926 P.2d at 490. However, in
a different section under the same “Sentencing Issues” section, the Ari-
zona Supreme Court stated that Dickens “was admittedly intimately famil-
iar with Amaral’s violent temper and impulsiveness, yet he provided
Amaral with a gun . . . .” Id. at 492.
DICKENS v. RYAN 8613
dants’ actions collectively demonstrate a “high level of
participation . . . [that] implicates them in the resulting
deaths.” Id. at 158.
By sharp contrast, “the only evidence of the degree of
[Enmund’s] participation [was] the jury’s likely inference that
he was the person in the car by the side of the road near the
scene of the crimes[,] . . . waiting to help the robbers escape
. . . .” Enmund, 458 U.S. at 786. There was no evidence that
Enmund provided the murder weapons, knew of the shooters’
violent propensities, planned the underlying crime, or contin-
ued to assist the perpetrators after they murdered their vic-
tims. His only participation was that of getaway driver. Id. at
786 n.2.
Here, the facts support the Arizona Supreme Court’s deter-
mination that Dickens’s participation was similar to that of
the defendants in Tison, rather than the defendant in Enmund.
“Far from merely sitting in a car away from the actual scene
of the murders,” Tison, 481 U.S. at 158, Dickens planned the
underlying armed robbery, provided the murder weapon or
knew Amaral had the weapon, watched Amaral shoot the vic-
tims, made no effort to assist the victims after the shooting,
helped Amaral flee the scene, assisted in the destruction of
evidence, continued in the criminal venture after the murders
were committed, and failed to report the murders to the
authorities. These facts, taken together, demonstrate a “high
level of participation . . . [that] implicates [Dickens] in the
resulting deaths.” Tison, 481 U.S. at 158. Dickens was no
doubt a “major participant.”
Additionally, even if Tison and Enmund could be read to
incorporate a mandatory “presence” requirement, it seems that
the Arizona Supreme Court suggested that Dickens met that
requirement. The Supreme Court has never defined the word
“presence” as it pertains to the major participation in a capital
crime. The Arizona Supreme Court had as its guide only the
two contrasting examples of presence in Enmund and Tison.
8614 DICKENS v. RYAN
In Enmund, where the defendant sat in a car outside the home
where two victims were shot to death and neither heard nor
observed the murders, the Court concluded the defendant
“was not present when the killing took place.” 458 U.S. at
795. In Tison, where the defendants stood by as four people
were gunned down, the Court determined the defendants were
sufficiently “present” at the murder site. 481 U.S. at 145. It
is not clear how close the Tison defendants stood to the vic-
tims when they were murdered, but we can fairly assume they
were close enough to watch the crime as it happened.9
Here, Dickens testified at trial that he watched each part of
the Bernsteins’ murders as they unfolded. After planning the
armed robbery, staking out the rest area for several hours in
search of potential victims, and selecting the Bernsteins as
they parked on the opposite side of the highway, Dickens (1)
watched Amaral leave the truck with a loaded .38-caliber
handgun, knowing Amaral was going to rob the Bernsteins at
gunpoint; (2) watched Amaral walk across the highway; (3)
observed Amaral moving the Bernsteins around the front of
their car in the path of the illuminated headlamps; and (4) saw
flashes as Amaral shot the victims in the head. Dickens then
drove through the rest stop to pick Amaral up, and (to use his
words) verify “everything had been taken care of” (i.e., verify
the victims had been shot). Given the language of the
Supreme Court in Tison, Dickens was present at this murder.
In any event, because Supreme Court “cases give no clear
answer to the question” of mandatory or minimum presence
9
There was apparently some dispute as to the Tison defendants’ involve-
ment in and proximity to the murders: “Ricky claimed to have a somewhat
better view than Raymond did of the actual killing. Otherwise, the [Ari-
zona] court noted, Ricky Tison’s participation was substantially the same
as Raymond’s.” 481 U.S. at 145. The defendants may have actually
walked away from the murder scene to fetch a water jug for the victims
“when [they] started hearing the shots.” Id. at 141. However, because both
defendants “watched Gary Tison and Greenawalt fire in the direction of
the victims,” they were sufficiently “present” at the murder scene. Id. at
141, 144-45, 157 (emphasis added).
DICKENS v. RYAN 8615
at the murder scene, “it cannot be said that the state court
unreasonably applied clearly established Federal law.”
Wright, 552 U.S. at 126 (internal quotation marks, alterations,
and citations omitted). Therefore, the Arizona Supreme
Court’s determination that Dickens was a major participant in
the murders did not rest on an objectively unreasonable appli-
cation of Supreme Court precedent. Lockyer, 538 U.S. at 76.
B. Reckless indifference to human life
[5] The second prong of the Tison analysis requires the
felony-murder defendant to exhibit “reckless indifference to
human life” sufficient to satisfy Enmund’s culpability require-
ment for capital punishment. 481 U.S. at 158. The Tison
Court observed that
some nonintentional murderers may be among the
most dangerous and inhumane of all—the person
who tortures another not caring whether the victim
lives or dies, or the robber who shoots someone in
the course of the robbery, utterly indifferent to the
fact that the desire to rob may have the unintended
consequence of killing the victim as well as taking
the victim’s property. This reckless indifference to
the value of human life may be every bit as shocking
to the moral sense as an “intent to kill.” Indeed it is
for this very reason that the common law and mod-
ern criminal codes alike have classified behavior
such as occurred in this case along with intentional
murders.
Id. at 157 (citations omitted). The Court held that “reckless
disregard for human life implicit in knowingly engaging in
criminal activities known to carry a grave risk of death repre-
sents a highly culpable mental state” sufficient to warrant cap-
ital punishment “when that conduct causes its natural, though
also not inevitable, lethal result.” Id. at 157-58 (emphasis
added). The Court further noted that a defendant’s major par-
8616 DICKENS v. RYAN
ticipation in a dangerous felony “often provide[s] significant
support” for a finding of reckless indifference. Id. at 158 n.12.
Applying Tison, the Arizona Supreme Court concluded that
Dickens acted with a reckless indifference to human life
because, (1) in addition to the factors demonstrating his major
contribution to the crimes, Dickens (2) armed Amaral with the
.38-caliber revolver, (3) knowing that “Amaral had a violent
and explosive temper,” and (4) “failed to render aid” to the
Bernsteins. Dickens, 926 P.2d at 490.10 Given these facts, the
Arizona Supreme Court’s conclusion that Dickens exhibited
a reckless indifference to human life was not objectively
unreasonable.
Dickens argues this conclusion was unreasonable, because
armed robbery is not a crime “known to carry a grave risk of
death.” However, Dickens failed to cite any U.S. Supreme
Court precedent, and we know of none, clearly establishing
this principle. Moreover, even if the garden variety armed
robbery were not known to carry a grave risk of death, the
question here is whether the circumstances of Dickens’s crime
were known to carry a grave risk of death and caused their
“natural, though also not inevitable, lethal result.” Tison, 481
U.S. at 157.
[6] Like the armed robbery in Tison, this was no ordinary
heist. The facts support the Arizona Supreme Court’s determi-
nation that Dickens knew there was a grave risk of death in
sending an explosive adolescent with a history of violence to
commit armed robbery. From his experience working at the
Oak Grove Institute (a treatment center for violent juveniles),
Dickens knew that Amaral was a high risk patient with a “vio-
10
As the Tison Court noted, although the “major participation” and
“reckless indifference to human life” requirements are stated separately,
“they often overlap.” 481 U.S. at 158 n.12. The Arizona Supreme Court
thus considered the factors demonstrating major participation as signifi-
cant support for a finding of reckless indifference to human life.
DICKENS v. RYAN 8617
lent and explosive temper.” Dickens, 926 P.2d at 490. He
knew that Amaral had beaten up a nurse at Oak Grove and
had a long history of carrying guns. Amaral twice attempted
to intimidate Dickens—once at the river and once immedi-
ately before the robbery—by pointing the loaded .38-caliber
revolver at Dickens’s head. Amaral also bragged about being
involved in other murders. Even with this knowledge, Dick-
ens proceeded with the robbery. He either furnished Amaral
with his .38-caliber revolver, or knew Amaral had the gun,
and directed Amaral to rob the Bernsteins on the opposite side
of the highway. Like the defendants in Tison, who armed two
convicted murderers and helped plan and orchestrate the
armed robbery, Dickens “could have foreseen that lethal force
might be used” in the course of the robbery. 481 U.S. at
151-52; accord Foster v. Quarterman, 466 F.3d 359, 370-71
(5th Cir. 2006) (denying habeas relief to a death row peti-
tioner convicted of capital murder as an accomplice because
he displayed reckless indifference to human life by driving
two armed co-conspirators from victim to victim to commit
armed robbery, which is a criminal activity “known to carry
a grave risk of death”).
Further, after watching the shootings, Dickens, like the
defendants in Tison, chose to “aid [Amaral,] whom he had
placed in the position to kill[,] rather than [aid the] victims.”
Tison, 481 U.S. at 152; see id. (“These facts not only indicate
that the Tison brothers’ participation in the crime was any-
thing but minor; they also would clearly support a finding that
they both subjectively appreciated that their acts were likely
to result in the taking of innocent life.”). Dickens helped
Amaral flee the scene of the murder, destroy evidence, and
evade capture.
[7] In light of these facts, we cannot say that the Arizona
Supreme Court’s determination that Dickens exhibited a reck-
less indifference to human life rested on an objectively unrea-
sonable application of Enmund and Tison.
8618 DICKENS v. RYAN
II. The Arizona Supreme Court’s decision was not based
on an unreasonable determination of the facts in light
of the evidence presented at trial
Dickens argues that the Arizona court’s Enmund/Tison
analysis was based on an unreasonable determination of the
facts, because (1) Amaral was not a credible witness; and (2)
there was no evidence that (a) Dickens knew Amaral intended
to rob or kill the Bernsteins, (b) Dickens knew of Amaral’s
violent propensities, or (c) Dickens knew one of the victims
might still be alive when he and Amaral left the rest area.
Dickens “may obtain relief only by showing the [Arizona
court’s] conclusion to be ‘an unreasonable determination of
the facts in light of the evidence presented in the State court
proceeding.’ ” Miller-El v. Dretke, 545 U.S. 231, 240 (2005)
(quoting 28 U.S.C. § 2254(d)(2)).
[8] Dickens recites testimony and evidence presented at
trial showing inconsistent statements from Amaral, contradic-
tory testimony from Amaral’s fellow prisoners, and the jury’s
ultimate rejection of Amaral’s testimony about an alleged
walkie-talkie conversation between Dickens and Amaral at
the murder scene.11 Aside from casting doubt on Amaral’s
credibility—a factor which the state court and jury no doubt
considered at trial12—these general allegations do little more
than attempt to relitigate the jury’s factual findings and credit
Dickens’s testimony (over that of Amaral) that Dickens had
no part in the crimes. We agree with the Arizona Supreme
Court that we must “defer to the jury and the [trial] judge
11
Amaral’s testimony regarding the walkie-talkie conversation (in
which Dickens allegedly instructed Amaral not to leave any witnesses) is
irrelevant, because neither the trial court nor the Arizona Supreme Court
relied on this testimony in their discussion of the evidence supporting the
Enmund/Tison findings. See Dickens, 926 P.2d at 490-91.
12
For example, the jury did not convict Dickens of premeditated murder
or conspiracy to commit murder, in part, because it did not believe Ama-
ral’s testimony that Dickens ordered him to kill the Bernsteins over a two-
way radio.
DICKENS v. RYAN 8619
regarding Amaral’s credibility.” Dickens, 926 P.2d at 490; see
United States v. Johnson, 229 F.3d 891, 894 (9th Cir. 2000)
(“[W]e are powerless to question a jury’s assessment of wit-
nesses’ credibility . . . .” (internal quotation marks omitted)).
Absent persuasive evidence that any particular determination
of fact was unreasonable, Dickens cannot prevail under
§ 2254(d)(2) by raising a general challenge to Amaral’s credi-
bility.
[9] As to Dickens’s specific factual challenges, sufficient
evidence presented at trial supported the Arizona Supreme
Court’s findings to make those findings reasonable. Dickens
first argues that no evidence in the record supports the Ari-
zona courts’ determination that he knew about or helped plan
the robbery. However, Amaral testified at length about their
common scheme to commit armed robbery. Dickens has not
explained why the Arizona courts’ reliance on this particular
testimony from Amaral was unreasonable. Moreover, Dickens
himself testified that he knew about the robbery. Dickens
admitted at trial and to police investigators that he and Amaral
staked out the rest area on the west side of the highway, he
saw the victims when they pulled into the rest area, he
watched Amaral take the revolver as he walked away from the
vehicle, and he watched Amaral shoot the victims across the
highway. Most significantly, Dickens also admitted that (1) he
“figured [Amaral] was going to . . . go over there and rob
those people” when Amaral left the truck, and (2) Amaral told
him he was going to rob the Bernsteins. In light of this evi-
dence, the Arizona Supreme Court’s determination that Dick-
ens knew about and agreed to the robbery was not
unreasonable.
Second, Dickens argues the evidence in the record does not
support the Arizona courts’ determination that he knew about
Amaral’s violent propensities. This is plainly incorrect. Dick-
ens originally met Amaral at the Oak Grove Institute for vio-
lent juveniles. Dickens learned, while working at Oak Grove,
that Amaral was a “high risk” patient, had battered a nurse,
8620 DICKENS v. RYAN
and frequently bragged about carrying guns and committing
violent crimes, including murder. He further testified that he
had personally seen Amaral carrying guns on several occa-
sions before the September 1991 murders. Lastly, Amaral
twice pointed the loaded .38-caliber revolver at Dickens’s
head to intimidate him. In light of Dickens’s own admissions,
we cannot say the Arizona Supreme Court’s determination
that Dickens knew of Amaral’s violent nature was unreason-
able.
[10] Finally, Dickens argues that no evidence in the record
supports the Arizona courts’ determination that Dickens
“failed to render aid knowing that one victim might not be
dead.” This finding relates to the Arizona Supreme Court’s
determination that Dickens exhibited a reckless indifference
to human life, but it was not a dispositive factor in that deter-
mination. In Tison, the U.S. Supreme Court concluded that
the defendants exhibited reckless indifference, in part,
because they “watched the killing” and then “chose to aid
those whom [they] had placed in the position to kill rather
than their victims.” 481 U.S. at 152. Nothing suggests the
defendants in Tison knew anyone had survived; rather, the
deciding factors were the defendants’ (1) knowledge that vic-
tims had been shot and (2) decision to aid the shooters over
the victims. Dickens, like the Tison defendants, watched
Amaral shoot the Bernsteins, but decided to aid Amaral over
the Bernsteins. There is no evidence that Dickens attempted
to aid the Bernsteins, summoned medical assistance, or other-
wise notified the authorities. Instead, he helped Amaral flee
the scene, destroy evidence, and evade capture. Because
Dickens’s uncontested knowledge of the Bernsteins’ shooting
(rather than Bryan’s survival) is the critical factor in the
Enmund/Tison reckless indifference analysis, the Arizona
Supreme Court did not “base” its decision on an unreasonable
determination of the facts. See 28 U.S.C. § 2254(d)(2).13
13
Some evidence in the record also supports this factual determination.
For example, Amaral testified that Dickens drove through the rest stop to
DICKENS v. RYAN 8621
III. Dickens defaulted on his ineffective assistance of
counsel claim by failing to fairly present the claim to
the Arizona courts, but he may have shown cause
under Martinez v. Ryan
Dickens lastly petitions this court for habeas relief on the
basis of his counsel’s ineffective assistance during sentencing.
Dickens argues his counsel failed to conduct a thorough
investigation of Dickens’s background and prepare the
defense expert with the necessary tools to present compelling
mitigation evidence. The district court determined that this
argument was procedurally defaulted, because it was not
exhausted in state court. “A federal court may not grant
habeas relief to a state prisoner unless he has properly
exhausted his remedies in state court.” Peterson v. Lampert,
319 F.3d 1153, 1155 (9th Cir. 2003) (citing 28 U.S.C.
§ 2254(b); Coleman v. Thompson, 501 U.S. 722, 731 (1991)).
To demonstrate that he exhausted his federal habeas corpus
claim in state court, Dickens’s “claim . . . must include refer-
ence to a specific federal constitutional guarantee, as well as
a statement of the facts that entitle [him] to relief.” Gray v.
Netherland, 518 U.S. 152, 162-63 (1996).
A. Fair presentation in state court
[11] Constitutional claims must be “fairly presented” in
state court to provide those courts an opportunity to act on
them. Duncan v. Henry, 513 U.S. 364, 365 (1995) (per
curiam). “It would be contrary to [the] purpose [of Section
verify that “everything had been taken care of.” Officers testified that,
when they arrived at the rest stop shortly after the shooting, Bryan Bern-
stein was still alive and “thrashing” around in pain. At a minimum, Dick-
ens failed to provide aid when one victim was, in fact, still alive. Given
what the deputy sheriff encountered at the rest area, it is likely that Bryan
exhibited signs of life and/or was thrashing around in pain when Dickens
drove through the rest area. Nonetheless, we need not determine whether
the Arizona courts’ determination was reasonable, because this finding is
not critical to the Enmund/Tison analysis.
8622 DICKENS v. RYAN
2254(b)] to allow a petitioner to overcome an adverse state-
court decision with new evidence introduced in a federal
habeas court and reviewed by that court in the first instance
effectively de novo.” Cullen v. Pinholster, 563 U.S. ___, 131
S. Ct. 1388, 1399 (2011). Therefore, a claim has not been
fairly presented in state court if new factual allegations (1)
“fundamentally alter the legal claim already considered by the
state courts,” Vasquez v. Hillery, 474 U.S. 254, 260 (1986);
Beaty v. Stewart, 303 F.3d 975, 989-90 (9th Cir. 2002), or (2)
“place the case in a significantly different and stronger evi-
dentiary posture than it was when the state courts considered
it,” Aiken v. Spalding, 841 F.2d 881, 883 (9th Cir. 1988);
accord Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988).
In Aiken, the habeas petitioner presented new evidence
(consisting of a decibel sound test performed by an expert)
which strengthened his claim that the interrogating officers
heard him request counsel. 841 F.2d at 883. The court held
that his right to counsel claim was unexhausted, because the
new decibel evidence “substantially improve[d] the evidenti-
ary basis for [his] right-to-counsel and voluntariness argu-
ments, thereby presenting the very type of evidence which the
state should consider in the first instance.” Id. Similarly, in
Nevius, this court held that a habeas petitioner failed to
exhaust his Batson claim in state court where he attempted to
introduce new and substantial supporting evidence on appeal.
852 F.2d at 469-70. At oral argument and in his appellate
briefs, Nevius made
serious allegations concerning comments by the
prosecutor alleged to have been made to defense
counsel sometime during 1986. Those representa-
tions, if proven, might have presented in a different
light the factual issues concerning the motivation of
the prosecutor in exercising his peremptory chal-
lenges. The alleged remarks, however, . . . have not
been presented to the state courts, either on appeal or
during post-conviction proceedings. In habeas pro-
DICKENS v. RYAN 8623
ceedings, the federal courts are not free to entertain
new evidence that places the claim in a significantly
different posture, when that evidence was never
presented to the state courts. . . .
If there is evidence that should be presented to the
state courts, then the attempt must first be made to
present it there and to make a record. Only thereaf-
ter, under the appropriate procedural strictures, may
the matter be addressed in federal court.
Id. (emphasis added) (internal citations omitted).14
In this case, Dickens argued to the Arizona trial court that
his sentencing counsel provided ineffective assistance. Dick-
ens claimed, among other things, that sentencing counsel did
14
Our holdings in Aiken and Nevius are consistent with case law in the
Fourth, Fifth, Sixth, and Tenth Circuits. See, e.g., Smith v. Quarterman,
515 F.3d 392, 402 (5th Cir. 2008) (dismissing habeas petition for failure
to exhaust because new evidence “regarding [petitioner]’s childhood and
the effects of his substance abuse . . . constitute ‘material additional evi-
dentiary support [presented] to the federal court that was not presented to
the state court’ ” (citation omitted)); Demarest v. Price, 130 F.3d 922,
938-39 (10th Cir. 1997) (finding failure to exhaust because “new evidence
submitted to the district court by [the petitioner] transformed his ineffec-
tive assistance of counsel claim into one that was ‘significantly different
and more substantial’ ” (citation omitted)); Wise v. Warden, Md. Peniten-
tiary, 839 F.2d 1030, 1033 (4th Cir. 1988) (“The exhaustion doctrine is
not satisfied where a federal habeas petitioner presents evidence which
was not presented to the state court and which places his case ‘in a signifi-
cantly different and stronger evidentiary posture than it was when the state
courts considered it.’ ” (citation omitted)); Sampson v. Love, 782 F.2d 53,
57-58 (6th Cir. 1986) (dismissing habeas petition for failure to exhaust
when stronger evidence presented in the federal hearing showed that jurors
actually knew about petitioner’s previous sentence); Brown v. Estelle, 701
F.2d 494, 495 (5th Cir. 1983) (“Where a federal habeas petitioner presents
. . . evidence not before the state courts such as to place the case in a sig-
nificantly different and stronger evidentiary posture than it was when the
state courts considered it, the state courts must be given an opportunity to
consider the evidence.”).
8624 DICKENS v. RYAN
not direct the work of the court-appointed psychologist, Dr.
Todd A. Roy, and did not adequately investigate Dickens’s
background. In preparation for his testimony, sentencing
counsel provided Dr. Roy with several boxes of material doc-
umenting Dickens’s history. Dr. Roy later “adduced informa-
tion from [Dickens] relative to a possible medical or mental
condition.” However, Dickens alleged that sentencing counsel
(1) “conducted no investigation whatsoever into the possibil-
ity [Dickens] was suffering from any medical or mental
impairment,” and (2) failed to direct Dr. Roy to any particular
mitigating evidence. The trial court rejected this claim on the
merits, finding that sentencing counsel’s performance was not
constitutionally deficient and that Dickens “failed to demon-
strate that he was prejudiced by any performance of defense
counsel.” Considering the same arguments raised to the trial
court, the Arizona Supreme Court summarily denied Dick-
ens’s Strickland claim on appeal.
[12] In federal court, Dickens changed his claim to include
extensive factual allegations suggesting Dickens suffered
from Fetal Alcohol Syndrome (“FAS”) and organic brain
damage. Dickens argues that sentencing counsel’s failure to
uncover and present these specific mitigating conditions
amounted to constitutionally deficient performance under
Strickland v. Washington, 466 U. S. 668 (1984). This new
evidence creates a mitigation case that bears little resem-
blance to the naked Strickland claim raised before the state
courts. There, Dickens did not identify any specific conditions
that sentencing counsel’s allegedly deficient performance
failed to uncover, averring only generally that sentencing
counsel did not effectively evaluate whether Dickens “suffer-
[ed] from any medical or mental impairment.” Evidence of
specific conditions (like FAS and organic brain damage)
clearly places Dickens’s Strickland claim in a “significantly
different” and “substantially improved evidentiary” posture.
See Nevius, 852 F.2d at 470; Aiken, 841 F.2d at 883. As such,
the Arizona courts did not have a fair opportunity to evaluate
Dickens’s ineffective assistance of counsel claim. Therefore,
DICKENS v. RYAN 8625
the district court correctly determined that Dickens’s newly-
enhanced Strickland claim is procedurally barred.
Dickens argues the district court erred, because he estab-
lished a sufficient factual basis to exhaust his claim in state
court according to the Ninth Circuit’s holdings in Weaver v.
Thompson, 197 F.3d 359 (9th Cir. 1999), Pinholster v. Ayers,
590 F.3d 651 (9th Cir. 2009) (en banc), reversed on other
grounds, Cullen, 131 S. Ct. at 1398, and Lopez v. Schriro, 491
F.3d 1029 (9th Cir. 2007). His reliance on these cases is mis-
placed. In Weaver, we rejected the argument that a habeas
petitioner failed to exhaust his claim in state court, because he
modified the factual basis for his bailiff misconduct claim on
appeal. 197 F.3d at 364-65. As we explained, “Weaver’s
inability to fully explore what transpired during that incident
[between the bailiff and the jury] stemmed from the state
courts’ refusal to grant him an evidentiary hearing on the mat-
ter, rather than from any failure of diligence on his part.” Id.
at 364. We noted further that the petitioner “pressed this same
claim” before the state and federal courts: the bailiff made an
inappropriate comment that coerced the jury into rendering a
premature decision, which violated Weaver’s due process and
equal protection rights. Id. The only change in Weaver’s
claim was the precise wording of the bailiff’s comment,
which was clarified at the evidentiary hearing. Id.In Pinholster, we determined that a habeas petitioner’s
ineffective assistance of sentencing counsel claim was suffi-
ciently exhausted, because: (1) he “exercised diligence in pur-
suing an evidentiary hearing in state court regarding his
mitigation ineffective assistance claim”; and (2) “both the fed-
eral and the state habeas petitions detail many substantially
identical facts, including . . . Pinholster’s home life as a child,
and Pinholster’s educational, medical, social, psychological,
and family background.” 590 F.3d at 668-69 (emphasis
added). We further noted that, “[a]lthough Pinholster substi-
tuted experts during the proceedings who ultimately devel-
oped different mental impairment theories, these experts
8626 DICKENS v. RYAN
nonetheless relied on the same background facts that Pinhol-
ster presented to the state court.” Id. at 669 (emphasis added).
Finally, in Lopez, we held that a capital habeas petitioner
exhausted his Strickland claim in state court, because he
asserted sufficient evidence of the mitigating conditions to the
state court. 491 F.3d at 1041. Lopez argued in federal court
that his post-conviction counsel failed to uncover and present
evidence of organic brain damage, dysfunctional childhood,
and alcohol abuse. Id. at 1040-41. We concluded that this
argument was properly exhausted, because “the state court
record contain[ed] some evidence of a dysfunctional child-
hood and alcoholism.” Id. at 1041. However, we did not allow
Lopez to supplement the record with additional evidence of
prejudice on his ineffective assistance of sentencing counsel
claim. Id. at n.8 (“We note that Lopez apparently wishes to
supplement the record in federal court with additional evi-
dence . . . that was not presented to the state courts. On
remand, the district court will therefore need to determine
whether Lopez . . . is entitled to supplement the record . . . .”
(citing 28 U.S.C. § 2254(e)(2)). Thus, Lopez did not deter-
mine whether a habeas petitioner can add evidence to his
claim on federal appeal that would render the claim unex-
hausted.
This case is distinguishable from Weaver, Pinholster, and
Lopez. Dickens’s factual allegations in federal court do not (1)
amount to a minor change in the semantics of already-
presented evidence, see Weaver, 197 F.3d at 364-65; (2) pre-
sent “substantially identical facts” to those alleged in state
court, see Pinholster, 590 F.3d at 668-69; or (3) build upon
the same background evidence presented in state court, see
Lopez, 491 F.3d at 1041. Dickens never discussed his moth-
er’s alcohol consumption during pregnancy or any specific
circumstances that would have caused organic brain damage
in state court. He also does not dispute that he never specifi-
cally raised FAS or organic brain damage as mitigating fac-
tors in state court. Thus, Dickens’s new factual allegations do
DICKENS v. RYAN 8627
not build upon specific factual allegations made in state court.
This case is similar to Smith v. Quarterman, in which the
Fifth Circuit determined that a petitioner’s inclusion of new
and more specific evidence “regarding [his] childhood and the
effects of his substance abuse . . . constitute[s] ‘material addi-
tional evidentiary support’ ” for his Strickland claim. 515
F.3d 392, 402 (5th Cir. 2008) (holding that petitioner’s claim
was procedurally barred).
[13] In sum, Dickens’s Strickland claim is procedurally
barred, because the new evidence of prejudice was not fairly
presented to the state courts. This new evidence substantially
improves the evidentiary posture of Dickens’s claim in federal
court. See Peterson, 319 F.3d at 1156 (“When a prisoner has
deprived the state courts of a fair opportunity to pass on his
claim and state procedural rules bar him from returning to
state court, he has procedurally defaulted and is ineligible for
federal habeas relief unless he can show ‘cause and preju-
dice.’ ” (citation omitted)).
B. Cause and prejudice
Dickens argues that, even if his claim is unexhausted, the
ineffective assistance of his post-conviction relief (“PCR”)
counsel—in failing to raise the FAS and organic brain dam-
age claims to the Arizona Supreme Court—constitutes cause
to overcome the default. See Coleman, 501 U.S. at 749-50(“Under Sykes and its progeny, an adequate and independent
finding of procedural default will bar federal habeas review of
the federal claim, unless the habeas petitioner can show
‘cause’ for the default and ‘prejudice attributable thereto’
. . . .” (citations and internal quotation marks omitted)). To
establish cause for a procedural default, “a petitioner must
demonstrate that the default is due to an external objective
factor that cannot fairly be attributed to him.” Smith v. Bald-
win, 510 F.3d 1127, 1146 (9th Cir. 2007) (en banc) (internal
quotation marks omitted)). “Attorney ignorance or inadver-
tence is not cause, but attorney error rising to the level of an
8628 DICKENS v. RYAN
independent constitutional violation (in the form of ineffec-
tive assistance of counsel) does constitute cause.” Moormann
v. Schriro, 426 F.3d 1044, 1058 (9th Cir. 2005) (citing Cole-
man, 501 U.S. at 753-54).
The district court held that Dickens’s ineffective-
assistance-of-PCR-counsel claim may not constitute cause to
excuse the procedural default of his newly-enhanced
ineffective-assistance-of-sentencing-counsel claim. The dis-
trict court supported its holding by noting that ineffective
assistance of PCR counsel cannot rise to the level of an inde-
pendent constitutional violation sufficient to constitute cause,
because there is no constitutional right to counsel in state PCR
proceedings. The district court’s conclusion was correct under
the then-existing, clear circuit law. See, e.g., Smith, 510 F.3d
at 1146-47 (“[B]ecause ‘there is no constitutional right to an
attorney in state post-conviction proceedings,’ attorney inef-
fectiveness ‘in the post-conviction process is not considered
cause for the purpose[ ] of excusing the procedural default at
that state.” (internal quotation marks, alterations, and citations
omitted)); Manning v. Foster, 224 F.3d 1129, 1133 (9th Cir.
2000) (“[T]here is no constitutional right to an attorney in
state post-conviction proceedings. Therefore, any ineffective-
ness of [the defendant’s] attorney in the post-conviction pro-
cess is not considered cause for the purposes of excusing the
procedural default at that stage.” (citation omitted)). As an
additional ground for denying Dickens’s claim for cause, the
district court cited Murray v. Carrier, 477 U.S. 478, 489
(1986), and held that Dickens was required to (but did not)
present his claim of ineffective assistance of PCR counsel to
the state courts as an independent claim in order for it to be
used to establish cause.
[14] However, in Martinez v. Ryan, the Supreme Court
found “it . . . necessary to modify the unqualified statement
in Coleman that an attorney’s ignorance or inadvertence in a
postconviction proceeding does not qualify as cause to excuse
a procedural default.” 132 S. Ct. 1309, 1315 (2012). Martinez
DICKENS v. RYAN 8629
creates a narrow exception to Coleman: “Inadequate assis-
tance of counsel at initial-review collateral proceedings may
establish cause for a prisoner’s procedural default of a claim
of ineffective assistance at trial.”15 Id. “Where, under state
law, claims of ineffective assistance of trial counsel must be
raised in an initial-review collateral proceeding, a procedural
default will not bar a federal habeas court from hearing a sub-
stantial claim of ineffective assistance at trial if, in the initial-
review collateral proceeding, there was no counsel or counsel
in that proceeding was ineffective.” Id. at 1320. The Supreme
Court expressly held this to be a narrow equitable ruling and
not a constitutional ruling. Id. at 1318-20. For a prisoner to
meet this equitable rule establishing cause for a procedural
default in a scenario applicable to this case, the prisoner must
demonstrate that “counsel in the initial-review collateral pro-
ceeding, where the claim should have been raised, was inef-
fective under the standards of Strickland . . . .” Id. at 1318. In
addition, “[t]o overcome the default, a prisoner must also
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. Id.at 1318-19 (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)
(describing standards for issuing certificates of appeala-
bility)).
[15] Here, Dickens argues that ineffective assistance of his
PCR counsel caused the procedural default and Arizona
requires ineffective-assistance-of-sentencing-counsel claims
to be raised in a defendant’s first collateral proceeding—i.e.,
an initial-review collateral proceeding. Therefore, the newly
announced rule in Martinez may provide a path for Dickens
to establish cause for the procedural default of his newly-
enhanced claim of ineffective assistance of sentencing coun-
sel, if he can show that the claim is substantial and that his
15
Martinez defines an initial-review collateral proceedings as “collateral
proceedings which provide the first occasion to raise a claim of ineffective
assistance at trial.” Martinez, 132 S. Ct. at 1315.
8630 DICKENS v. RYAN
PCR counsel was ineffective under Strickland. Thus, we
vacate the district court’s ruling regarding whether cause
existed to overcome the procedural default of Dickens’s
newly-enhanced claim of ineffective assistance of sentencing
counsel. We remand for the district court to consider the issue
anew in light of Martinez. See Strategic Diversity, Inc. v.
Alchemix Corp., 666 F.3d 1197, 1206 (9th Cir. 2012)
(“Because the district court did not have the benefit of recent
Supreme Court authority, we vacate the ruling on these
grounds and remand.”).
Appellees present various arguments why Martinez does
not apply to Dickens’s situation. We decline to address all but
one of these arguments based on our remand to the district
court to decide the applicability and impact of Martinez.
Appellees argue that Martinez does not apply, because the
assertion of ineffective assistance of PCR counsel as cause
must itself be exhausted or it is procedurally barred. Without
the benefit of Martinez, the district court held that Dickens
could not assert his claim of ineffective assistance of counsel
as cause without first presenting it (i.e., an independent claim)
to the state courts. Although the district court had reasonable
grounds for its conclusion, see Edwards v. Carpenter, 529
U.S. 446, 451-54 (2000); Murray, 477 U.S. at 489, reading
the case law supporting such a conclusion with Martinez now
indicates that no such requirement exists in the narrow cir-
cumstances when Martinez applies.
[16] Martinez’s equitable rather than constitutional ruling
and its own factual background lead us to conclude that an
ineffective assistance of PCR counsel claim used to establish
cause for a procedural default of a claim for ineffective assis-
tance of sentencing counsel need not be exhausted itself. It is
true that “ineffective assistance adequate to establish cause for
the procedural default of some other constitutional claim is
itself an independent constitutional claim.” Edwards, 529 U.S.
at 451 (alterations in original). Further, it is true that “the
DICKENS v. RYAN 8631
exhaustion doctrine . . . generally requires that a claim of inef-
fective assistance be presented to the state courts as an inde-
pendent claim before it may be used to establish cause for a
procedural default.” Murray, 477 U.S. at 488-89 (citation
omitted). However, it appears that the first time the petitioner
in Martinez argued ineffective assistance of PCR counsel was
in his federal habeas petition. See Martinez v. Ryan, 132 S. Ct.
at 1314; Martinez v. Schriro, 623 F.3d 731, 734 (9th Cir.
2010), rev’d by Martinez v. Ryan, 132 S. Ct. 1309. Notwith-
standing, the Supreme Court did not find the claim barred for
not being presented to the state courts. Therefore, there seems
to be no requirement that the claim of ineffective assistance
of PCR counsel as cause for a ineffective-assistance-of-
sentencing-counsel claim be presented to the state courts.
[17] Furthermore, as Dickens points out, “[t]he question
whether there is cause for a procedural default does not pose
any occasion for applying the exhaustion doctrine when the
federal habeas court can adjudicate the question of cause—a
question of federal law—without deciding an independent and
unexhausted constitutional claim on the merits.” Murray, 477
U.S. at 489. Martinez describes the claim of ineffective assis-
tance of PCR counsel (in an initial-review collateral proceed-
ing) as cause for the procedural default of a claim for
ineffective assistance of sentencing counsel as a “narrow
exception” to Coleman, 501 U.S. 722, and as an equitable rul-
ing, not a constitutional ruling. Martinez, 132 S. Ct. at 1315,
1318-1319. In Martinez, the Supreme Court notes that it did
not make a constitutional ruling, and “[a] constitutional ruling
would provide defendants a freestanding constitutional claim
. . . .” Id. at 1319. In other words, Martinez did not create a
constitutional right to effective assistance of counsel in PCR
proceedings. Thus, the claim of ineffective assistance of PCR
counsel used to establish cause in the narrow circumstances
outlined in Martinez is an equitable claim and not a constitu-
tional claim, see Coleman, 501 U.S. at 755 (“[T]here is no
right to counsel in state collateral proceedings.”), and there-
8632 DICKENS v. RYAN
fore, the claim for cause need not be exhausted as suggested
in Murray.
Even if the exhaustion requirement were to apply, a federal
habeas petition may be granted even though a claim is not
exhausted if “there is an absence of available State corrective
process . . . .” 28 U.S.C. § 2254(b)(1)(B)(i); see Teague v.
Lane, 489 U.S. 288, 297-98 (1989) (petitioner failed to raise
a claim at trial or direct appeal, which effectively prevented
petitioner from raising the claim in collateral proceedings,
resulting in the claim being deemed exhausted); Duckworth v.
Serrano, 454 U.S. 1, 3 (1981) (“An exception is made [to the
exhaustion requirement] only if there is no opportunity to
obtain redress in state court or if the corrective process is so
clearly deficient as to render futile any effort to obtain
relief.”). Here, a claim of ineffective assistance of PCR coun-
sel does not fit under any of the grounds for relief in PCR pro-
ceedings listed in Arizona Rule of Criminal Procedure 32.1.
As such, Dickens cannot claim ineffective assistance of PCR
counsel in a second PCR petition in Arizona, creating no
opportunity to obtain redress. Thus, the claim of ineffective
assistance of PCR counsel in an initial review collateral pro-
ceeding does not itself need to be exhausted when raised as
cause for the procedural default of an ineffective-assistance-
of-sentencing-counsel claim.
For the foregoing reasons, the judgment of the district court
denying Dickens’s petition for writ of habeas corpus is
AFFIRMED in part, VACATED in part, and
REMANDED.
The parties shall bear their own costs.
DICKENS v. RYAN 8633
REINHARDT, Circuit Judge, dissenting:
The majority opinion allows the State of Arizona to execute
Dickens essentially for being the getaway driver in the armed
robbery that resulted in the death of the Bernsteins. Yet
Supreme Court case law is clear that imposition of the death
penalty on one “who does not himself kill, attempt to kill, or
intend that a killing take place or that lethal force will be
employed” is excessive punishment under the Eighth Amend-
ment. Enmund v. Florida, 458 U.S.782, 797 (1982). It is not
disputed that Dickens did not kill, attempt to kill, or intend
that the Bernsteins be killed. Under Enmund, his death sen-
tence is therefore unconstitutional.
The majority attempts to escape the clear holding of
Enmund by arguing that Dickens falls under the narrow
exception created in Tison v. Arizona, in which the Supreme
Court held that “major participation in the felony committed,
combined with reckless indifference to human life, is suffi-
cient to satisfy the Enmund culpability requirement” and justi-
fies the imposition of a death sentence on a defendant
convicted of felony-murder. 481 U.S. 137, 158 (1987). Dick-
ens, however, was neither a major participant in the commis-
sion of the robbery of the Bernsteins, nor was he recklessly
indifferent to human life. In fact, nothing material distin-
guishes Dickens from Enmund, or any other individual who
helped plan an armed robbery but whose principal role in the
commission of the offense is that of a getaway driver. It is
well established under Supreme Court law that the imposition
of the death penalty on such a defendant is unconstitutional.
The majority reaches the opposite conclusion, however, as the
result of misconstruing the record, engaging in improper fact-
finding, and relying on unreasonable findings of facts, facts
that were not determined by the Arizona Supreme Court; even
more important, the majority misconceives the clear import of
the two controlling Supreme Court cases, albeit undoubtedly
all in good faith.
8634 DICKENS v. RYAN
Because the decision of the Arizona Supreme Court finding
that Dickens was death eligible for the murder of the Bern-
steins under Enmund and Tison “involved an unreasonable
application of[ ] clearly established Federal law, as deter-
mined by the Supreme Court of the United States,” and “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), I conclude that we are compelled to reverse
the district court’s denial of habeas and to grant the writ.
I. Enmund/Tison
The majority, as did the Arizona Supreme Court, correctly
identified the two controlling Supreme Court cases: Enmund
and Tison. In Enmund, the Supreme Court held that it was
unconstitutional to execute the defendant, who was the get-
away driver for an armed robbery of a dwelling, for “two kill-
ings that he did not commit and had no intention of
committing or causing,” namely, the murders of the victims
of the robbery by his accomplices. Enmund, 458 U.S. at 801.
The court determined that such a punishment for felony-
murder would meet neither the deterrent nor retributive goals
of the death penalty. Id. at 798-801. Five years later in Tison,
the Supreme Court carved out a narrow exception to Enmund.
Tison did not overrule Enmund, but rather clarified it by creat-
ing an explicit exception; the Court said that “major participa-
tion in the felony committed, combined with reckless
indifference to human life, is sufficient to satisfy the Enmund
culpability requirement.” Tison, 481 U.S. at 158.
More recently, in Kennedy v. Louisiana, the Supreme Court
described the holdings in Enmund and Tison as follows:
[I]n Enmund v. Florida, 458 U.S. 782 (1982), the
Court overturned the capital sentence of a defendant
who aided and abetted a robbery during which a
murder was committed but did not himself kill,
attempt to kill, or intend that a killing would take
DICKENS v. RYAN 8635
place. On the other hand, in Tison v. Arizona, 481
U.S. 137 (1987), the Court allowed the defendants’
death sentences to stand where they did not them-
selves kill the victims but their involvement in the
events leading up to the murders was active, reck-
lessly indifferent, and substantial.
554 U.S. 407, 421 (2008) (emphasis added).
With this legal framework in mind, I analyze the findings
of the Arizona Supreme Court (and the separate findings of
the majority) in support of their separate conclusions that
Dickens satisfied the two requirements for imposition of the
death penalty: (1) that he was a major participant in the rob-
bery of the Bernsteins; and (2) that he acted with reckless
indifference to human life.
II. Major Participant
The Arizona Supreme Court found that Dickens was a
major participant in the robbery because:
The robberies were premeditated, planned, and
agreed on by [Dickens] and Amaral; [Dickens] fur-
nished Amaral with the weapon used in the murders
or knew Amaral had the weapon with him for the
robberies; [Dickens] drove Amaral to the scene,
waited while Amaral committed the robberies,
picked up Amaral after the crime, witnessed the
destruction of evidence, and failed to report the
crimes.
State v. Dickens, 926 P.2d 468, 490 (Ariz. 1996) (in banc)
(emphasis added). These findings rest on the role Dickens
played in the plan or agreement to commit a robbery and on
his role as a driver who witnessed but did not actively partici-
pate in the events leading up to the murders. This does noth-
ing to distinguish Dickens from other getaway drivers, and
8636 DICKENS v. RYAN
does not show that his participation in the events leading up
to the murder of the Bernsteins was “active” and “substan-
tial.” See Kennedy, 554 U.S. at 421.
First, the finding that the robbery was “premeditated,
planned and agreed on” by Dickens and Amaral, Dickens, 926
P.2d at 490, does little to meaningfully distinguish Dickens
from any other getaway driver who ordinarily plays a part in
the planning of the armed robbery and then drives the car that
contains the individuals who actually commit the robbery.
The only getaway driver who would not play such a role
would be the unwitting or coerced one, such as a driver who
is hired to act as a chauffeur for the robbers or one who is
blackmailed into doing so. If participating in the planning and
serving the ordinary role of the member of the group who
drives the car were sufficient to meet the Enmund and Tison
requirements, then almost any participant in a felony would
be a major participant. After all, most members of a group
committing a robbery will ordinarily participate in the plan-
ning of the crime, even if they go on to perform only a minor
role in the commission of the crime, such as acting as a look-
out or getaway driver.
Second, the Arizona Supreme Court relied on the fact that
Dickens “either furnished Amaral with the weapon used in
the murders or knew Amaral had the weapon with him for the
robberies.” Id. at 490 (emphasis added). It so described the
facts in the death eligibility section of its opinion, surely a
critical section in which petitioner and the federal courts are
both entitled to expect accuracy and on which both are
unquestionably entitled to rely. What the Arizona Supreme
Court’s statement means is that while Dickens may have fur-
nished Amaral with a gun, what is certain is that he knew that
Amaral had a gun. A getaway driver or other participant in an
armed robbery (again, except for an unwitting or coerced one)
knows that at least one of his accomplices is armed. Knowl-
edge of the fact that someone is armed does not, however,
make the possessor of that knowledge a major participant.
DICKENS v. RYAN 8637
Moreover, possessing that knowledge is a passive rather than
an active act. There is nothing inherent in knowing that an
accomplice is armed that raises the level of participation to
that of a major participant. This finding by the Arizona
Supreme Court is essentially that Dickens was a knowing par-
ticipant, but that is not the correct standard; Tison is a narrow
exception that requires major participation, not mere knowl-
edge.1
Third, the Arizona Supreme Court found that Dickens
“drove Amaral to the scene, waited while Amaral committed
the robberies, [and] picked up Amaral after the crime.” Id. at
490. The majority attempts to recast these findings so as to
make them more inculpatory to Dickens, by describing those
actions as “aiding Amaral’s escape,” “helping Amaral evade
capture,” and “help[ing] Amaral flee the scene.” Maj. Op. at
8612, 8613. But these are the very functions of participating
in a robbery as a getaway driver. These findings, even as
recast by the majority, do nothing to distinguish Dickens’
actions from those of other getaway drivers. Enmund, who the
Supreme Court found could not be sentenced to death, was
1
The majority makes inconsistent representations regarding whether
Dickens furnished Amaral with a weapon. At times it states that Dickens
was responsible for “arming Amaral with a handgun.” Maj. Op. at 8612,
8616. At other times, however, the majority recognizes that Dickens either
provided the handgun or knew Amaral had the handgun, as was stated by
the Arizona Supreme Court in the death eligibility section of its opinion.
Maj. Op. at 8612, 8617. The reason for its inconsistency is apparent. The
Arizona Supreme Court itself makes an inconsistent statement that led to
the majority’s own inconsistencies. It is, however, the Arizona Supreme
Court’s former statement, not the latter, that should control our analysis.
This is, after all, a death penalty case. To base our decision (even partially)
to uphold the execution of a petitioner who did not actively participate in
a murder on one of two inconsistent statements by a state court, simply
because that one supports the death penalty and the other does not falls far
short of fulfilling our obligations to the law and the Constitution. The Ari-
zona Supreme Court expressly did not make a finding one way or the
other as to whether Dickens furnished Amaral with a weapon, and it is not
for this court to do so.
8638 DICKENS v. RYAN
“in the car by the side of the road at the time of the killings,
waiting to help the robbers escape.” Enmund, 458 U.S. at 788(emphasis added).
Finally, the court found that Dickens “witnessed the
destruction of evidence” and “failed to report the crime.”
Dickens, 926 P.2d at 490. These findings are of a passive,
rather than active, nature and do not establish that Dickens
was a major participant in the underlying robbery. Nor do
these findings do anything to distinguish Dickens from other
getaway drivers, who may well help dispose of incriminating
evidence and do what they can to cover up and prevent others
from knowing of their own involvement in the crime.2
In sum, in finding that Dickens was a major participant, the
court essentially found that he acted as the getaway driver for
Amaral, and that he did nothing to stop the robbery before or
after it was committed. But, the same could be said about
Enmund or any other getaway driver, and the Supreme Court
has clearly held that the death penalty is unconstitutional in
these circumstances. Moreover, the same could be said about
almost any participant in a felony-murder, major or minor.
The facts simply do not support a finding that Dickens played
2
The majority again attempts to recast the findings of the Arizona
Supreme Court, writing that Dickens participated in “destroying evidence”
or “assisted in the destruction of evidence,” Maj. Op. at 8612, 8613, rather
than merely “witnessed the destruction of evidence.” The Arizona
Supreme Court never made any finding that Dickens was in any way
involved in the destruction of evidence in this case. In describing the facts
in the light most favorable to the prosecution, the Arizona Supreme Court
wrote: “Amaral removed cash, traveler’s checks, and one credit card from
Bryan’s wallet, then burned the wallet and its remaining contents.” Dick-
ens, 926 P.2d at 475 (emphasis added). This recitation of facts, notably,
was “[a]ccording to Amaral’s testimony at trial,” id. at 474, so even under
that version of events, it was Amaral, not Dickens, who destroyed the evi-
dence. In any event, even if Dickens had been a participant, rather than a
mere witness, in the destruction of evidence, this does nothing to distin-
guish him from the typical getaway driver, as explained above.
DICKENS v. RYAN 8639
an active and substantial role in the robbery that resulted in
the death of the Bernsteins.
There is no basis for comparing Dickens, who helped plan
a robbery, knew his accomplice was armed, and drove the get-
away car, with the Tison brothers, the exception to the
Enmund rule on which the majority seeks to rely. The Tison
brothers “brought an arsenal of lethal weapons into the Ari-
zona State Prison which [they] then handed over to two con-
victed murderers,” helped them escape from prison,
“participated fully in the kidnaping and robbery” by flagging
down the car on the road, robbing the family, driving the fam-
ily into the desert, and holding them at gunpoint. Tison, 481
U.S. at 139-41, 151-52 (emphasis added). They knew that
Gary Tison, their father, was “thinking about” killing the fam-
ily, and “saw Greenawalt and their father brutally murder
their four captives with repeated blasts from their shotguns.”
Id. at 140-41 (emphasis added). The Tison brothers played an
active and substantial role in the commission of the crimes (as
opposed to its planning), and were therefore major partici-
pants; Dickens, whose role was limited to that of getaway
driver, was not. This is a crucial and dispositive distinction.
The findings by the Arizona Supreme Court in Dickens under-
mine the Enmund and Tison standard that only major partici-
pants in the commission of the crime may be eligible for the
death penalty, and is therefore an unreasonable application of
clearly established Supreme Court law. The lack of any true
distinguishing characteristics between Dickens and the typical
getaway driver renders the analysis by the Arizona Supreme
Court an unreasonable application of Enmund and Tison.
The majority, no doubt recognizing that the Arizona
Supreme Court findings in support of the major participant
determination describe nothing more than the typical getaway
driver, adds additional findings to support its conclusion that
Dickens was a major participant. The majority holds that
Dickens was a major participant in the robbery of the Bern-
steins because, in addition to the findings by the Arizona
8640 DICKENS v. RYAN
Supreme Court (sometimes as recast by the majority), he
“stak[ed] out the crime scene,” “target[ed] the victims,”
“watched Amaral shoot the victims,” and “continued in the
criminal venture after the murders were committed.” Maj. Op.
at 8612, 8613-14. Nowhere in its decision does the Arizona
Supreme Court take into account these findings in its major
participant determination.
Even considering these additional findings, however, the
majority does not get far. Three of its additional findings, that
Dickens staked out the crime scene, targeted the Bernsteins,
and continued in the criminal venture, do little to distinguish
Dickens from other getaway drivers who may, for example,
scout the neighborhood and identify the mom and pop store
to be robbed. Staking out the rest stop area and targeting the
Bernsteins for the robbery go only to Dickens’ role in plan-
ning the robbery, not to any active participation in its com-
mission. And every getaway driver, in some sense, continues
in the criminal venture by driving the car away from the scene
of the robbery. Doing so is the essence of being a getaway
driver. But Dickens did not continue in the criminal venture
in the way the Tison brothers did, by continuing to aid
escaped murderers and participating in a crime spree, “ending
in a gun battle with the police in the final showdown.” See
Tison, 481 U.S. at 151. Dickens drove the car away from the
rest stop, and parted ways with Amaral two days later. In fact,
Dickens refused to help Amaral use the credit card he had
stolen from the Bernsteins. Despite its attempt to conjure up
more support, the majority cannot distinguish Dickens from a
typical getaway driver, and thus cannot establish that Dickens
was a major participant in the underlying crime.
The fourth finding by the majority, that Dickens “watched
Amaral shoot the victims,” is not only one that the Arizona
Supreme Court did not take into account in its major partici-
pation determination; it is a finding that the Arizona Supreme
Court did not make at all.3 But rather than “take the facts as
3
The trial court, in its death eligibility determination, made a finding
that Dickens “witnessed the shootings.” It is well established, however,
DICKENS v. RYAN 8641
the Arizona Supreme Court has given them to us,” Tison, 481
U.S. at 151, the majority decides to engage in de novo fact-
finding, and unreasonable factfinding at that, as the finding
that Dickens watched the murders is unsupported by the
record. Before addressing why the finding is unreasonable,
however, it is important to consider why the majority feels
compelled to make this finding in the first place. Dickens cor-
rectly argues that his case is analogous to Enmund, and there-
fore his death sentence is unconstitutional, because he “was
not present when the killing took place.” See Enmund, 458
U.S. at 795. Like Enmund, he was parked in a car some dis-
tance from the scene of the murder, acting as the getaway
driver. See id at 784, 788. The detectives who examined the
crime scene and the surrounding area calculated that it took
2 minutes and 29 seconds to walk from where Dickens was
parked to where the murders took place.4
that “[i]n conducting review of a state court decision, we look to the last
reasoned state-court decision.” Lopez v. Ryan, 630 F.3d 1198, 1202 (9th
Cir. 2011) (internal quotation marks and citation omitted). We must there-
fore look only to the Arizona Supreme Court decision, which did not make
this finding. Further, even if we were to consider the trial court decision,
the trial court did not make the broad finding the majority makes here that
Dickens actually “witnessed Amaral shoot the victims,” in the sense that
the majority implies. Dickens did, as explained below, witness the shoot-
ings in that he heard the gunshot and saw a muzzle flash. But he did not,
and the record is clear on this, actually see Amaral shooting the Bernsteins
in the head.
4
The Federal Highway Administration, which establishes the speed for
stop lights at crosswalks, sets the standard crossing time at 3.5 feet per
second for pedestrian crosswalks. See U.S. Department of Transportation,
Federal Highway Administration, Manual on Uniform Traffic Control
Devices (2009), Ch. 4N, In-Roadway Lights, http://mutcd.fhwa.dot.gov/
pdfs/2009/part4.pdf (Dec. 2009). The detectives who measured the dis-
tance in this case said they were walking “at a normal walking pace.”
Assuming a walking speed above that set by the Federal Highway Admin-
istration, at 4 feet per second, the average person walks 596 feet, or 199
yards, in 2 minutes and 29 seconds. Enmund was 200 yards away from the
scene of the murders, Enmund, 458 U.S. at 784, and the Supreme Court
held that he was not present at the scene. Id. at 795. Neither, therefore,
was Dickens.
8642 DICKENS v. RYAN
The majority attempts to refute Dickens’ presence argu-
ment in two ways. First, the majority holds that “nowhere in
Enmund or Tison does the Supreme Court clearly establish
that ‘presence’ at a murder scene is a mandatory prerequisite
for the death penalty.” Maj. Op. at 8612. To anyone who has
read Enmund and Tison, however, there can be no question
that the Supreme Court established that presence is a critical
aspect in the analysis for death eligibility. In both Enmund
and Tison, the Supreme Court stressed on several occasions
that Enmund, who was found not death eligible, had not been
present at the time of the killings. See Enmund, 458 U.S. at
795 (noting that “the defendant . . . was not present when the
killing took place”); Tison, 481 U.S. at 149 (“At one pole was
Enmund himself: the minor actor in an armed robbery, not on
the scene, who neither intended to kill nor was found to have
had any culpable mental state.”) (emphasis added); id. at 158(noting that Enmund was “sitting in a car away from the
actual scene of the murders”). In surveying states’ practices
on imposing death sentences on those convicted of felony-
murder, the Supreme Court in Enmund found that only 16 out
of 739 death row inmates in the entire United States were not
physically present at the scene of the crime, and only 3 of
those inmates (including Enmund) were not physically pres-
ent and had not “hired or solicited someone else to kill the
victim or participated in a scheme designed to kill the victim.”
Enmund, 458 U.S. at 795; see also Tison, 481 U.S. at 148(“The Court [in Enmund] found . . . that only 3 of 739 death
row inmates had been sentenced to death absent an intent to
kill, physical presence, or direct participation in the fatal
assault . . . .”) (emphasis added).
In Tison, the Supreme Court repeatedly stressed the impor-
tance of presence. It noted the finding in Enmund that only 3
death row inmates in the entire United States were neither
present at the scene nor involved in a scheme to murder. Id.
at 148. Moreover, the Supreme Court found a consensus
among state courts that certain aggravated felony-murders
merited the death penalty, as an exception to Enmund. Id. at
DICKENS v. RYAN 8643
154-55. In describing each of those cases, the Supreme Court
specifically noted that the defendants were present at the
scenes of the murders, contemplated killing, or used lethal
force. Id. Moreover, in distinguishing the Tison brothers from
Enmund, and justifying the death penalty for the former while
not for the latter, the Supreme Court stated:
Far from merely sitting in a car away from the actual
scene of the murders acting as the getaway driver to
a robbery, each [Tison brother] was actively
involved in every element of the kidnaping-robbery
and was physically present during the entire
sequence of criminal activity culminating in the mur-
der of the Lyons family and the subsequent flight.
Id. at 158 (emphasis added). Even if presence is not a “man-
datory prerequisite” to death eligibility, Maj. Op. at 8612, it
is certainly a critical aspect of the inquiry under Enmund and
Tison.
Second, perhaps acknowledging the weakness of its argu-
ment that presence is not a critical factor, the majority goes
on to hold that “even if Tison and Enmund could be read to
incorporate a mandatory ‘presence’ requirement, it seems that
the Arizona Supreme Court suggested that Dickens met that
requirement” because, the majority says, Dickens “watched
each part of the Bernsteins’ murders as they unfolded.” Maj.
Op. at 8613-14. According to the majority, “Dickens testified
at trial that he. . . (1) watched Amaral leave the truck with a
loaded .38-caliber handgun, knowing Amaral was going to
rob the Bernsteins at gunpoint; (2) watched Amaral walk
across the highway; (3) observed Amaral moving the Bern-
steins around the front of their car in the path of the illumi-
nated headlamps; and (4) saw flashes as Amaral shot the
victims in the head.” Maj. Op. at 8614-15.
The majority overstates the evidence in the record. Dickens
testified that after Amaral left his truck, he “lost sight . . .
8644 DICKENS v. RYAN
when he came up to the edge of the interstate” and then
“heard one shot and one muzzle flash.” Dickens further testi-
fied that he saw a “shadow as they went in front of the lights,”
like “a flicker of light.” The prosecution read into the record
the following statement by Dickens:
I remember seeing, I think I seen, I guess it was
three, three times I seen somebody pass in front of
the lights. I seen the first person, then the second
person, and then a few steps behind I seen Travis
walk behind or in front of the light.
Moreover, Officer Johnson (the first officer on the scene) tes-
tified that it was difficult to see from where Dickens was
parked across the highway to the other rest area where Amaral
murdered the Bernsteins, in part because there was no lighting
in either rest area. In fact, absent the car headlights, it was
“pitch black.” Amaral also testified at trial that he did not see
the moon on the night of the murders,5 and that there were no
street lights that shone into the rest area. This evidence does
not support a finding that Dickens actually “watched each part
of the Bernsteins’ murders as they unfolded.” Maj. Op. at
8614. Certainly not, as the majority suggests, in the same way
that the Tison brothers watched the victims in that case being
murdered. Dickens saw flickers of light, shadows, heard a
gunshot, and saw a muzzle flash. The Tison brothers, in con-
trast, were at the scene of daylight murders and “they saw
Greenawalt and their father brutally murder their four captives
with repeated blasts from their shotguns.” Tison, 481 U.S. at
141 (emphasis added). In any event, under no fair reading of
the evidence can it be said that because Dickens could see
part of the shooting of the Bernsteins he was present at the
scene of the murders. To the contrary, he like Enmund was
sitting in a parked car, approximately the same distance away
from the scene as Enmund.
5
The sun set at 6:52 P.M. that night, and the murders occurred around
9:17 P.M.
DICKENS v. RYAN 8645
The majority adds that Dickens was present at the scene of
the murders because he “drove through the rest stop to pick
Amaral up, and (to use his words)6 verify “everything had
been taken care of” (i.e., verify the victims had been shot).”
Maj. Op. at 8614. In reaching this finding, the majority goes
beyond overstating the evidence; it completely misconstrues
it or adds to it. No state court ever found as a fact that Dick-
ens drove through the rest area. The “facts and procedural his-
tory” section of the Arizona Supreme Court decision put the
facts in the light most favorable to the state. Dickens, 926
P.2d at 474-75. The court began that section with the state-
ment “[a]ccording to Amaral’s testimony at trial.” Id. at 474.
It did not, however, adopt some of those statements. For
example, the court included “facts,” such as the use of the
walkie-talkie and other parts of Amaral’s “testimony” that it
deliberately did not rely on in its discussion of death eligibil-
ity under Enmund and Tison, and that the prosecution itself
disavowed during the state proceedings as well as before this
court. And yet, even in that “facts and procedural history”
section, the Arizona Supreme Court made no mention of
Dickens driving through the rest area. Rather, the court said
that “[w]hile Amaral was with the Bernsteins, [Dickens]
drove across the median to the westbound lanes, where he
picked up Amaral.” Id. at 475 (emphasis added). Its major
participant and reckless indifference discussion under
Enmund and Tison also did not mention anything about Dick-
ens driving through the rest area.7
Only one statement by the Arizona Supreme Court could
possibly be interpreted as support for a finding (had one been
made) that Dickens drove through the rest area, namely, that
Dickens “failed to render aid even though he knew one victim
6
By “his words” the majority means what Amaral testified to at trial
about a conversation that he “believe[d]” he had with Dickens. I discuss
the unreasonable reliance on this testimony infra at pages 8646-47.
7
Incidentally, neither did the state trial court decision make any mention
of Dickens driving through the rest stop.
8646 DICKENS v. RYAN
might not be dead.” Id. at 490. If we overlook the fact that the
Arizona Supreme Court did not specify any factual basis for
this finding, and presume that it was making an inferential
finding that Dickens drove through the rest stop and as a
result of doing so knew that one victim might not be dead,
then that finding clearly constitutes an unreasonable finding
of fact, as it is unsupported by the evidence in the record.
Amaral never stated in his testimony that he saw Dickens
drive through the rest area or that Dickens did so. Amaral tes-
tified that “the only thing I can remember is he came and
picked me up, I don’t know if he was leaving the interstate as
far as leaving the rest stop or coming [from the interstate] into
the lane going out of the rest stop.” Even after prompting as
to whether he saw Dickens drive through the rest stop, Ama-
ral said he did not remember Dickens driving through the rest
stop. At trial, he further testified, “I still don’t remember him
coming in as I’m going out. There was not enough time span
where he left the other side to get across when I was running.”
(emphasis added). Dickens, of course, also denied driving
through the rest stop.
The only allegation that Amaral made with respect to this
point, on which the majority could conceivably be thought to
rely to support its own finding, see Maj. Op. at 8620-21 n.13,
was a belated half-sentence reference by Amaral to a conver-
sation that Amaral said he had with Dickens sometime after
the murders in which he “believe[d]” Dickens said that he
went through the rest stop. Neither the Arizona Supreme
Court nor the trial court ever mentioned that purported con-
versation. Neither court deemed the belated statement credible
or worthy of mention. In the end, this half-sentence, the only
possible “evidence” regarding Dickens driving through the
rest stop, is mentioned only by the majority here but not by
any state court. Moreover, that “evidence” is contrary to what
Amaral himself observed, and contrary to what Amaral testi-
fied to regarding the lack of time for Dickens to drive through
the rest stop before picking him up on the side of the road.
Reliance on the isolated half-sentence about what Amaral
DICKENS v. RYAN 8647
“believe[d]” Dickens had said to support a finding (itself non-
existent) that Dickens drove through the rest stop would in
any event have been “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). In short, there is no
basis for any finding that Dickens drove through the rest stop
and even more important no finding was made by any state
court.
***
In sum, the Arizona Supreme Court found that Dickens
planned a robbery with Amaral, knew Amaral was armed,
acted as the getaway driver, and witnessed the destruction of
evidence. That, according to the court, made him a major par-
ticipant in the robbery of the Bernsteins. It is evident under
Enmund and Tison, however, that these findings are far from
sufficient. In reaching a contrary result, the Arizona Supreme
Court engages in an unreasonable application of Enmund and
Tison. The record is clear: Dickens, like Enmund, acted as a
getaway driver, and “was not present when the killing took
place.” Enmund, 458 U.S. at 795. Instead, like Enmund, Dick-
ens was “sitting in a car away from the actual scene of the
murders.” Tison, 481 U.S. at 158. Dickens’ participation in
the commission of the crime can be described in the same
way the Supreme Court described the participation of the
defendant in Enmund: he was a “minor actor in an armed rob-
bery, not on the scene, who neither intended to kill nor was
found to have had any culpable mental state.” Id. at 149.
Although Dickens helped plan the robbery, like Enmund, he
was not a major participant in the commission of the crime
itself. “Putting [him] to death to avenge two killings that he
did not commit and had no intention of committing or causing
does not measurably contribute to the retributive end of ensur-
ing that the criminal gets his just deserts.” Enmund, 458 U.S.
at 801. Nor does it serve any deterrent purpose. Id. at 798-99.
The Arizona Supreme Court decision to the contrary “in-
volved an unreasonable application of[ ] clearly established
8648 DICKENS v. RYAN
Federal law, as determined by the Supreme Court of the
United States.” See 28 U.S.C. § 2254(d).
In short, Dickens clearly does not meet the major partici-
pant requirement necessary for a determination of death eligi-
bility under Enmund/Tison. The Arizona Supreme Court’s
contrary ruling is an unreasonable application of established
Supreme Court law.
III. Reckless Indifference
Even if Dickens were a major participant in the underlying
robbery, the evidence does not support a finding that he satis-
fied the second requisite element necessary to make him death
eligible: reckless indifference to human life. In Tison, the
Supreme Court established a standard for reckless indiffer-
ence to the value of human life that was not quite intent to
kill, but was more than mere foreseeability: reckless indiffer-
ence means “knowingly engaging in criminal activities known
to carry a grave risk of death.” Tison, 481 U.S. at 157. The
Supreme Court gave some examples of those who exhibit
“reckless indifference to the value of human life”: individuals
it described as “among the most dangerous and inhumane of
all” murderers. Id. They include “the person who tortures
another not caring whether the victim lives or dies, or the rob-
ber who shoots someone in the course of the robbery, utterly
indifferent to the fact that the desire to rob may have the unin-
tended consequence of killing the victim.” Id. Dickens, the
getaway driver in a robbery, clearly is not “among the most
dangerous or inhumane of all” murderers.
Here, the Arizona Supreme Court found that Dickens acted
with reckless indifference to human life because, in addition
to the fact that he was a major participant, he “had consider-
able experience with the justice system through his other fel-
ony convictions, was aware that Amaral had a violent and
explosive temper, and failed to render aid knowing that one
victim might not be dead.” Dickens, 926 P.2d at 490. The
DICKENS v. RYAN 8649
majority concludes that, given these facts as determined by
the Arizona Supreme Court, the “conclusion that Dickens
exhibited a reckless indifference to human life was not objec-
tively unreasonable.” Maj. Op. at 8616. Here, too, the major-
ity is clearly wrong. The Arizona Supreme Court conclusion
constitutes an unreasonable application of established
Supreme Court law and is based on an unreasonable determi-
nation of the facts.
The majority first erroneously rejects the argument that
armed robbery is not a crime known to carry a great risk of
death, as the Supreme Court required for a finding of reckless
indifference. See Tison, 481 U.S. at 157. In Tison, the
Supreme Court noted that there are some crimes for which
“any major participant necessarily exhibits reckless indiffer-
ence to the value of human life.” Id. at 158 n.12. The Supreme
Court expressly did not include armed robbery in that class of
crimes, however. Instead, it remanded for the state courts to
determine whether the Tison brothers, convicted of armed
robbery and kidnapping, had acted with reckless indifference.
Id. at 156-58. In Enmund, moreover, the Supreme Court held
that its analysis of whether Enmund acted with a sufficiently
culpable mental state would be very different “if the likeli-
hood of a killing in the course of a robbery were so substantial
that one should share the blame for the killing if he somehow
participated in the felony.” Enmund, 458 U.S. at 799. The
Supreme Court held that the kind of crime that Enmund (and
Dickens) committed — armed robbery — was not one in
which “death so frequently occurs.” Id. at 799-800. It cited
the Uniform Crime Report to note that “only about 0.43% of
robberies in the United States in 1980 resulted in homicide.”
Id. at 800 n.24. Looking at that same data source, in 2010, the
last year for which full statistics are available, there were
367,832 robberies, and 780 murders in connections with rob-
beries.8 Thus, the number of murders in connection with rob-
8
See Uniform Crime Report, 2010, Crime in the United States, tbl. 1,
http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/crime-in-the-
8650 DICKENS v. RYAN
beries as a percentage of total robberies has actually been cut
in half since Enmund was decided, from 0.43% to 0.21%. In
holding that “Dickens failed to cite any U.S. Supreme Court
precedent, and we know of none, clearly establishing” the
principle that armed robbery is not the type of crime “known
to carry a grave risk of death,” Maj. Op. at 8616, the majority
simply fails to honor the analysis in Tison and Enmund. The
clear import of those cases is that mere participation in an
armed robbery is not enough to establish that a defendant
acted with reckless indifference to human life.
Still, the question remains whether under the facts of this
case, as determined by the Arizona Supreme Court, a finding
that Dickens acted with reckless indifference to human life is
reasonable. The answer is, without doubt, no. First, the Ari-
zona Supreme Court found that Dickens had “considerable
experience with the justice system through his other felony
convictions.” Dickens, 926 P.2d at 490. Notably, the majority
fails to discuss how this fact supports a finding of acting with
reckless indifference. It was wise to do so, because convic-
tions for forgery and lewd and lascivious acts with a child
under 14 years of age, the crimes for which Dickens had been
convicted, do nothing to establish that he “knowingly engag-
[ed] in criminal activities known to carry a grave risk of
death.” Tison, 481 U.S. at 157.
Second, the Arizona Supreme Court found that Dickens
was “aware that Amaral had a violent and explosive temper.”
Dickens, 926 P.2d at 490. The majority relies heavily on this
“fact” in its reckless indifference analysis, ultimately conclud-
ing that “Dickens ‘could have foreseen that lethal force might
be used’ in the course of the robbery.” Maj. Op. at 8617
(quoting Tison, 481 U.S. at 151-52). The Supreme Court held
u.s.-2010/tables/10tbl01.xls (last visited Jan. 11, 2012); Expanded Homi-
cide Data, tbl. 12, http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/
2010/crime-in-the-u.s.-2010/tables/10shrtbl12.xls (last visited Jan. 11,
2012).
DICKENS v. RYAN 8651
in Tison, however, that foreseeability could not be the test for
reckless indifference. In fact, the Supreme Court noted that
“[p]articipants in violent felonies like armed robberies can
frequently anticipate that lethal force might be used in accom-
plishing the underlying felony.” Tison, 481 U.S. at 150-51(emphasis added) (internal quotation marks, alterations and
ellipses omitted). “Enmund himself may well have so antici-
pated.” Id. at 151. “[T]he possibility of bloodshed is inherent
in the commission of any violent felony and this possibility
is generally foreseeable and foreseen.” Id. If foreseeability
were the test for death penalty eligibility, then that test would
be reduced to “little more than a restatement of the felony-
murder rule itself.” Id. Thus, the holding by the majority that
Dickens could foresee the use of lethal force is insufficient
and cannot support the proposition for which it is advanced.
Finally, the Arizona Supreme Court found that Dickens
“failed to render aid even though he knew one victim might
not be dead.” Dickens, 926 P.2d at 490. First, for the reasons
stated in the previous section of this dissent, if the Arizona
Supreme Court was making an inferential finding sub silentio
that Dickens drove through the rest stop and as a result of
doing so affirmatively knew that one victim might not be
dead, then the evidence in the record simply does not support
such a finding. Of course, if Dickens did not drive through the
rest area, then there is no factual basis whatsoever in the
record to support a finding that he knew that one victim might
be alive. Without any facts to support a finding, and the only
facts in the record being to the contrary, the finding that Dick-
ens knew that one victim might still be alive and that he was
recklessly indifferent in failing to stop and render aid is
“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).9
9
Apparently recognizing that the finding by the Arizona Supreme Court
that Dickens knew Bryan Bernstein might still be alive is indefensible, the
8652 DICKENS v. RYAN
Next, as the state in effect conceded at oral argument, the
simple failure to go through the rest stop and check the vic-
tims to make sure they were not alive would not constitute
reckless indifference. Otherwise, any getaway driver would
be recklessly indifferent if he fulfilled his role and drove away
from the scene of the crime without first checking to deter-
mine whether all possible victims of a shooting in the course
of a robbery were dead. It is clear that getaway drivers are not
per se death eligible because Enmund was not death eligible,
and the Tison Court repeatedly made clear that the death eligi-
bility rules are not merely restatements of the felony-murder
rule. Tison, 481 U.S. at 151.
There is simply no factual support whatsoever for any find-
ing that Dickens drove through the rest area to see that both
victims were dead and then drove on, leaving a still living vic-
tim, knowing that the victim might still be alive. Nor, of
course, according to the record, was there any other reason
Dickens might have driven through the rest stop while helping
Amaral make his escape. And even if we overlooked all the
contrary facts and nevertheless concluded that Dickens did
drive through the rest stop in order to see that the victims
majority instead holds that “the Arizona Supreme Court did not ‘base’ its
decision” on that finding and that it was “not a dispositive factor in th[e]
determination” that Dickens was recklessly indifferent. Maj. Op. at
8620-21 (emphasis added). It does so by deciding, without explanation,
that the critical factor was not that Dickens knew that one victim might be
alive, but rather that he “watched Amaral shoot the Bernsteins, but
decided to aid Amaral over the Bernsteins.” Maj. Op. at 8620. The major-
ity is clearly wrong. The Arizona Supreme Court did not find that Dickens
was recklessly indifferent because he “failed to render aid” to the Bern-
steins and instead aided Amaral. See Dickens, 926 P.2d at 490. In fact, the
Arizona Supreme Court did not mention Dickens’ decision to aid Amaral
at all in its reckless indifference discussion. Instead, the Arizona Supreme
Court made an explicit finding, albeit an unreasonable one, that Dickens
failed to aid the Bernsteins knowing that one victim might be alive. See
id. It clearly relied on that finding to determine beyond a reasonable doubt
that Dickens acted with reckless indifference to human life.
DICKENS v. RYAN 8653
were dead, then it is illogical, irrational and unreasonable to
say that he knew one victim might be alive and drove on,
leaving the victim in a seriously wounded state. If Dickens
took the time to drive through the rest stop right after the mur-
ders to make certain both victims were dead, and he thought
that one of the victims was still living, in that unlikely
instance, he most certainly would have done something to
ensure that the living victim failed to survive rather than driv-
ing on satisfied with the knowledge that one victim might still
be alive. Thus, even considering the state’s whole range of
factually unsupported possibilities, the only reasonable con-
clusion is that Dickens drove off without entering the rest stop
area or without knowing the fate of the victims or at most
drove off believing that both were dead, not that one victim
might still be alive. Accordingly, the wholly factually unsup-
ported rest stop drive through theory cannot support the con-
clusion that Dickens’ conduct demonstrated reckless
indifference to human life.10
In addition to the findings by the Arizona Supreme Court
in connection with the reckless indifference determination, the
majority improperly relies on the findings of the state trial
court to support its conclusion that Dickens acted with reck-
less indifference to human life, including findings that Amaral
had beaten up a nurse, had a long history of carrying guns,
twice threatened Dickens by pointing the gun at his head, and
bragged about being involved in other murders. Maj. Op. at
8616-17. Nowhere does the Arizona Supreme Court refer to
10
There is no other suggestion in the record that Dickens somehow
became aware of the physical condition of either of the Bernsteins. Nor do
I read the Arizona Supreme Court decision as holding that a getaway
driver who does not abandon his assignment to help the perpetrator or per-
petrators of a robbery flee the scene so that he may determine the physical
state of the victim or victims of a shooting that occurs during an armed
robbery, and provide medical aid when desirable to the victims, has dem-
onstrated reckless indifference to human life such that he has become one
of the “most dangerous and inhumane of all” murderers. Such would be
a remarkable ruling indeed.
8654 DICKENS v. RYAN
any of these findings, including in its reckless indifference
determination. And, as I noted above, it is well established
that “we look to the last reasoned state-court decision.” Lopez,
630 F.3d at 1202 (internal quotation marks and citation omit-
ted). Even if the Arizona Supreme Court had adopted those
findings, they would not support the conclusion that Dickens
knew that there was “a grave risk of death” or that the “natu-
ral” result of the robbery would be the death of the Bernsteins.
Tison, 481 U.S. at 157-58 (emphasis added). Anger control
problems in no way indicate that an individual will engage in
murder. Nor does having beaten someone up on one occasion
suggest that the individual will commit a murder. Carrying a
gun, which is a Second Amendment right, also cannot legally
lead to a finding that the individual is likely to murder some-
one; if it could, half or even more of the people in some of
our states would qualify as likely murderers. While the trial
court noted that Amaral had bragged to Dickens about com-
mitting other murders, it did not find that Dickens believed
this statement, and it is clear that, as Dickens testified, he
didn’t. In fact, as Dickens testified, when Amaral was first
brought to Oak Grove Dickens was told that Amaral was a
“chronic liar” with some “wild stories.” The trial court also
noted that Amaral had scared Dickens by pointing a gun at
him “a day or two prior to the murders.” (emphasis added).
Pointing a gun and not shooting someone is a far cry from
being a likely murderer. Even if these additional facts did sug-
gest that Dickens could anticipate or foresee the possibility of
violence, they do not suggest that Dickens knowingly
engaged in criminal activity known to carry a grave risk of
death. As noted above, the Supreme Court has rejected fore-
seeability as the test for reckless indifference because such
test would amount to “little more than a restatement of the
felony-murder rule itself.” Tison, 481 U.S. at 151.
***
In sum, the Arizona Supreme Court found that Dickens
acted with reckless indifference to human life because he was
DICKENS v. RYAN 8655
a major participant in the robbery of the Bernsteins, had prior
felony convictions for forgery and lewd and lascivious acts
with a child under 14 years of age, knew that Amaral had a
violent and explosive temper, and “failed to render aid know-
ing that one victim might not be dead.” Dickens, 926 P.2d at
490. These findings, as I have explained above, “involved an
unreasonable application of[ ] clearly established Federal law,
as determined by the Supreme Court of the United States” in
Enmund and Tison, and are “based on an unreasonable deter-
mination of the facts in light of the evidence presented in the
State court proceeding,” 28 U.S.C. § 2254(d).
The Supreme Court made clear in Tison that the reckless
indifference standard helps to “definitively distinguish[ ] the
most culpable and dangerous of murderers.” Id. at 157. Dick-
ens is certainly neither. Even given the gruesome facts in
Tison, the Supreme Court did not find that the brothers had
been recklessly indifferent. Rather, it sent the case back to the
state courts to make that determination, and the Tison brothers
ultimately received life sentences. Dickens did not act with
the “highly culpable mental state” required to establish death
eligibility under Enmund and Tison, see id at 157-58, and cer-
tainly not because the individual with whom he planned the
armed robbery was a young man who he knew had an anger
problem.
IV. Conclusion
For the reasons set out above, the Arizona Supreme Court
determination that Dickens was a major participant in the rob-
bery of the Bernsteins and acted with reckless indifference to
human life “involved an unreasonable application” of the
Supreme Court decisions in Enmund and Tison, and “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). Dickens was the getaway driver to an
armed robbery, did not play an “active” and “substantial” role
in the commission of the underlying crime, see Kennedy, 554
8656 DICKENS v. RYAN
U.S. at 421, and was not present at the scene when Amaral
shot the Bernsteins. Nor did Dickens “knowingly engag[e] in
criminal activities known to carry a grave risk of death” sim-
ply because he was a participant in an armed robbery. Tison,
481 U.S. at 157. The majority reaches the contrary result only
by misconstruing the record and engaging in improper and
unreasonable factfinding. It is clear, however, that Dickens is
not one of the “most culpable and dangerous of murderers”
such that he should be put to death by the State of Arizona.
Because the Arizona Supreme Court’s decision that Dick-
ens was a major participant in the armed robbery and that he
acted with reckless indifference constitutes an unreasonable
application of established Supreme Court law and is based on
an unreasonable determination of the facts in the record, I dis-
sent from the denial of the writ.11
11
Because I would grant habeas relief on the Enmund and Tison claim,
I would not reach any of the other issues the majority decides in the opin-
ion or in the accompanying memorandum disposition that relate to the
imposition of the death penalty.