Robert Walden v. David Shinn

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT LEE WALDEN, No. 08-99012
Petitioner-Appellant,
D.C. No.
v. 4:99-CV-00559-RCC
DAVID SHINN, Director,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Argued and Submitted December 15, 2020
San Francisco, California
Filed March 12, 2021
Before: Sidney R. Thomas, Chief Judge, and Jay S. Bybee
and Sandra S. Ikuta, Circuit Judges.
Opinion by Chief Judge Thomas
2 WALDEN V. SHINN
SUMMARY*
Habeas Corpus / Death Penalty
The panel affirmed the district court’s denial of Robert
Lee Walden’s habeas corpus petition challenging his Arizona
state conviction for rape and murder and his death sentence.
The panel held that the district court properly declined to
grant habeas relief as to Walden’s claim based on the trial
court’s denial of his motion to sever the counts by victim,
where Walden failed, in his first petition for post-conviction
relief or his habeas petition, to assign any federal
constitutional error to the Arizona Supreme Court’s
alternative dispositive ruling that evidence concerning each
attack would have been admissible in separate trials on each
attack.
The panel held that the district court properly declined to
grant habeas relief as to Walden’s claim based on the trial
court’s admission of eyewitness identifications. The panel
held that the state court’s rejection of Walden’s due process
challenge to the photographic lineup used was consistent with
clearly established federal law and rested on factual findings
that were objectively reasonable. The panel held that the
state court did not rule contrary to, nor unreasonably apply,
clearly established federal law when it determined that the
police did not taint two victims’ identifications by informing
each victim, after she had chosen Walden’s photo, that the
police had a man in custody, or by providing one victim with
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
WALDEN V. SHINN 3
an article concerning Walden’s arrest for another assault and
a homicide. The panel also held that the Arizona Supreme
Court reasonably declined to infer improper police influence
from the fact that one witness selected Walden’s photo during
an off-the-record conversation with a detective after she had
tentatively identified another individual as resembling one of
two men she had seen at one victim’s apartment complex.
Because the Arizona Supreme Court reasonably determined
that the three identifications were not the product of
impermissibly suggestive police procedures, there was no
need for the panel to assess the reliability of each
identification under the totality of the circumstances. The
panel rejected Walden’s challenge to one victim’s
identification insofar as it rested on a factual basis that
Walden failed to present to the Arizona Supreme Court.
The panel held that McKinney v. Ryan, 813 F.3d 798 (9th
Cir. 2015) (en banc), has no impact on the claim in Walden’s
habeas petition that because the state trial court had prepared
a special verdict before the submission of evidence, that court
failed to properly consider his proffered mitigation evidence
at sentencing. The panel wrote that because Walden did not
in that claim identify causal nexus error by the Arizona
Supreme Court, which conducted an independent review of
Walden’s mitigation evidence, Walden’s belated claims of
causal nexus error are not cognizable on appeal.
The panel held that the district court properly denied
Walden leave to amend his habeas petition to add five
previously-withdrawn ineffective-assistance-of-counsel
claims on the grounds that those claims are untimely and do
not relate back to his timely-filed claims and that Walden
unduly delayed seeking leave to amend. The panel also held
that Walden is not entitled to equitable tolling.
4 WALDEN V. SHINN
The panel held that the district court properly concluded
that the trial court’s admission of 19 purportedly “gruesome”
crime scene and autopsy photos does not entitle Walden to
habeas relief because the state court’s decision did not
involve an objectively unreasonable application of clearly
established Supreme Court precedent or an objectively
unreasonable determination of the facts.
COUNSEL
Stan S. Molever (argued), Leticia Marquez and Kori Lorick,
Assistant Federal Public Defenders; Jon M. Sands, Federal
Public Defender; Office of the Federal Public Defender,
Tucson, Arizona; for Petitioner-Appellant.
Lacey Stover Gard (argued), Chief Counsel, Capital
Litigation Section; Mark Brnovich, Attorney General, Office
of the Attorney General, Tucson, Arizona; for Respondent-
Appellee.
OPINION
THOMAS, Chief Judge:
Robert Lee Walden was convicted of rape and murder by
an Arizona jury and was sentenced to death by the presiding
state court judge. Walden appeals the district court’s denial
of his petition for a writ of habeas corpus under 28 U.S.C.
§ 2254. We have jurisdiction under 28 U.S.C. §§ 1291 and
2253. We review the district court’s denial of habeas relief
de novo, see Dixon v. Ryan, 932 F.3d 789, 795 (9th Cir.
2019), and we affirm.
WALDEN V. SHINN 5
I
The factual and procedural history of this case spans
nearly three decades.1 A summary of the history relevant to
resolving the five claims before us follows.
A
The morning of May 4, 1991, at an apartment complex in
Tucson, Arizona, Walden forced Vicki Blanar into an empty
community laundry room at knife point; there, he forcibly
removed her clothing, fondled her breasts, and raped her
while holding his knife against her neck. See Walden, 905
P.2d at 982. During and after the assault, he repeatedly
threatened to kill her. See id.
Not long after raping Blanar and at a nearby apartment
complex during the afternoon of May 15, Walden—
uniformed in a red shirt and blue pants—tricked Kristina
Velasco into allowing him into her apartment, where she
lived alone, by claiming he was there to perform maintenance
work. See id.; see also id. at 984–85 (noting that the Blanar
and Velasco attacks “were in the same general area”). Once
inside, he attacked her, and a struggle followed. See id. at
982. Walden attempted, but failed, to wrap both a telephone
and hair dryer cord around Velasco’s neck. See id. He
repeatedly threatened to kill Velasco if she screamed or
continued to resist. See id. (noting that Walden told Velasco,
“I’m going to kill you. I can do it,” when she tried to escape).
1
The facts of Walden’s crimes are detailed in the Arizona Supreme
Court’s opinion affirming Walden’s convictions and sentence on direct
appeal. See State v. Walden (Walden), 905 P.2d 974, 982–83 (Ariz. 1995).
6 WALDEN V. SHINN
After dragging Velasco to her bedroom, Walden used a
telephone cord to tie her arms behind her back. See id. He
then blindfolded and gagged her, fondled her breasts, pulled
off her shoes and jeans, digitally penetrated her, and had
forcible intercourse with her. See id. Afterward, he ran an
object down her back, said it was a knife, and threatened to
kill her if she reported the rape. See id. at 982–83.
About a month later, on June 13 between 1:30 and
2:30 p.m., Walden raped and killed Miguela Burhans in her
bedroom. See id. at 983. Burhans was home alone in an
apartment building “next to the one where Velasco . . . was
assaulted,” Walden v. Schriro (Walden II), No. CV 99-559-
TUC-RCC, 2008 WL 2026217, at *2 (D. Ariz. May 9, 2008),
and “in the same general area” as the Blanar attack. Walden,
905 P.2d at 985. Upon arriving home, Burhans’s husband
found his wife’s body “face down” on their bedroom floor “in
a pool of blood, unclothed from the waist down.” Id. at 983.
A knife sheath and blood stains were on the bed next to
Burhans’s body, and scattered throughout the bedroom were
fragments of a broken clay table lamp that had previously sat
intact on the Burhans’s nightstand.
Burhans “died from a combination of strangulation and
two deep cuts to her throat that severed her carotid artery.”
Id. at 997. The stab wounds were not instantaneously fatal.
Id. (noting that Burhans “would have been conscious for
several minutes” after the stabbing). Blood “splattered
around the room[] indicat[ed] that [Burhans] was moving
about the room while injured.” Id. The “electrical cord used
to strangle her”—from the broken lamp—“was still around
her neck,” and her “hand was still intertwined in it,
demonstrating that she had been conscious when Walden
WALDEN V. SHINN 7
wrapped it around her neck and was struggling to loosen it.”
Id.Compelling evidence led to Walden’s arrest on June 27,
1991, and subsequent indictment on July 5 for all three
attacks: During the spring and summer of 1991, Walden
wore a red shirt and blue pants as his daily work uniform to
conduct termite and pest control services in homes and
apartments around Tucson. Id. at 982. Walden also lived
“within blocks” of where Velasco and Burhans were
assaulted. Id. at 985. Most significantly, fingerprint evidence
tied Walden to both the Velasco and Burhans crime scenes,
while identification evidence pointed to Walden as the
perpetrator of all three attacks. Id. at 983, 985–86. Several
weeks after their respective assaults, Blanar and Velasco each
selected Walden’s photo out of the same six-person lineup.
Not quite a month after the murder, Elaine Jordan, who had
visited another resident at Burhans’s complex on June 13,
identified Walden as one of two men whom she had seen at
the complex around the time of the murder; she told law
enforcement that this man was wearing what she thought was
a maintenance uniform and carrying some sort of equipment
that had a thin tube attached to it. See id. at 983, 985–86.
B
After being indicted on 14 counts, including one first-
degree murder count, Walden made and lost two pre-trial
motions that are at issue here.
First, Walden moved to sever the counts by victim under
state law. He argued that the three attacks were too dissimilar
to satisfy the standards for joinder under Arizona Rule of
Criminal Procedure (“Rule”) 13.3(a)(2) (permitting joinder
8 WALDEN V. SHINN
where the offenses were “based on the same conduct” or
“otherwise connected together in their commission”) and
Rule 13.3(a)(3) (permitting joinder where the offenses were
“alleged to have been a part of a common scheme or plan”)
and that he was, thus, entitled to severance as of right under
Rule 13.4(b).2 He further argued that severance was
“necessary to promote a fair determination” of his guilt or
innocence under Rule 13.4(a). The trial court denied
severance, but instructed the jury to “decide each charge on
the evidence and law applicable to it uninfluenced by [its]
decision as to the other charges.”
Second, Walden moved to suppress the identifications
made by Blanar, Velasco, and Jordan, arguing that the police
procedures used to obtain them were unduly suggestive and
would prejudice any subsequent in-court identifications, in
violation of due process. Walden faulted law enforcement for
using a photo array that included individuals whose features
differed materially from the victim’s descriptions of Walden.
Walden further contended that the police tainted the victims’
identifications by informing them that their assailant had been
arrested after each had selected Walden’s photo and by
providing Velasco with an article about Walden’s arrest for
other sexual assaults and a homicide. Walden also sought to
undermine Jordan’s identification on the ground that she
picked his photo only after having an off-the-record
conversation with a detective.
After an evidentiary hearing, the trial court also denied
this motion. The court concluded that the lineup photos were
2
Under Rule 13.4(b), a defendant was “entitled as of right to sever
offenses joined only by virtue of Rule 13.3(a)(1),” which permitted joinder
of offenses that were “of the same or similar character.”
WALDEN V. SHINN 9
“responsibly chosen”; that it was “abundantly clear” that the
victims’ identifications did not result from “any police
activity,” but were “instead the product of their painfully
clear recollections of their experiences”; and that the police
did not use “unlawful means” to obtain Jordan’s
identification. However, the court instructed the jury that it
could not consider any in-court identification of Walden
unless it determined “beyond a reasonable doubt” that the
identification “was based upon the witness’ independent
recollection of the defendant and that it was not derived from
suggestive circumstances in the courtroom or any previous
pretrial identification.”
C
During Walden’s trial in July 1992, the jury heard nine
days of testimony. The State’s evidence as to all three sets of
counts was strong. Blanar and Velasco each confirmed her
out-of-court identification of Walden and denied having any
doubt that Walden raped her. See Walden, 905 P.2d at 985.
In support of the Burhans’s charges, Jordan identified
Walden, likewise without “any doubt,” as the maintenance
man that she saw carrying blowing or spraying equipment at
Burhans’s complex around the time of the murder. Walden’s
boss and a coworker confirmed that Walden’s company truck
was outfitted with pest control equipment resembling the
equipment that Jordan had described. The State also
introduced expert fingerprint evidence that Walden’s right
ring finger matched a fingerprint lifted from one of the shoes
that Velasco’s attacker had pulled off her foot before raping
her, and that a second print lifted from the same shoe matched
Walden’s right middle finger. The State introduced further
expert fingerprint evidence that a print that police lifted from
10 WALDEN V. SHINN
the nightstand in Burhans’s bedroom matched Walden’s left
thumb.
Finally, in support of the Burhans counts, Dr. John
Howard, the forensic pathologist who visited the crime scene
and conducted the autopsy, testified at length regarding the
extent of Burhans’s injuries and the cause of her death: the
“combined effects” of strangulation and two deep cuts to her
throat by a sharp instrument, such as a knife, that severed her
carotid artery. Dr. Howard explained these injuries with the
aid of 19 crime scene and autopsy photos. As relevant to this
appeal, Walden objected to the admission of these photos on
undue prejudice grounds, given that he repeatedly offered to
stipulate to Burhans’s injuries and the cause of her death to
avoid their admission. See id. at 989. The trial court
nevertheless admitted some of the photos, reasoning that they
were “[c]learly relevant” and that their “utility with regard to
contested issues outweigh[ed] any tendency to create
prejudice.” However, the trial court also excluded 52 photos,
including—by the defense’s admission—“the most
gruesome” ones.
Walden’s counsel called seven witnesses to advance a
couple defense theories, including that Walden had an alibi as
to each set of counts, and that Blanar, Velasco, and Jordan
must have misidentified him. In connection with the latter
theory, Walden called an expert who testified regarding the
fallibility of human perception and memory. In closing, the
defense also asserted that the State’s fingerprint experts were
mistaken.
The afternoon following the conclusion of closing
arguments, the jury returned guilty verdicts on all 14 counts,
WALDEN V. SHINN 11
finding Walden guilty of felony, but not premeditated,
murder. See id. at 983.
D
At sentencing, the court found three aggravating factors:
Walden (i) “had been convicted of another offense for which
life imprisonment was imposable”; (ii) “had been convicted
of a felony involving the use or threat of violence”; and (iii)
murdered Burhans “in an especially cruel, heinous, or
depraved manner.” Id. As to the third factor, the court relied
on Dr. Howard’s testimony and “the fact the victim’s blood
was splattered around the room” to conclude that there was a
protracted struggle between Walden and Burhans, during
which he rendered her helpless; inflicted “gratuitous
violence” on her body; and caused her substantial physical
and mental suffering during the “several minutes of
consciousness” that she would have experienced after Walden
strangled and stabbed her.
After considering the defense’s mitigation evidence, the
court concluded that the evidence Walden “offer[ed] in
mitigation concerning his abusive and neglectful childhood,
being a model prisoner, his age, and his unhappy life
experiences [were] not sufficiently substantial to call for
leniency,” and sentenced Walden to death. Id. at 999.
E
In a reasoned opinion, the Arizona Supreme Court
affirmed Walden’s convictions and sentences. Id. at 982. As
is relevant here, Walden raised, but did not prevail on, the
following issues in his direct appeal: (i) the denial of
severance deprived him of a fundamentally fair trial on the
12 WALDEN V. SHINN
Burhans counts; (ii) the admission of the Blanar, Velasco, and
Jordan identifications, which were both unreliable and the
product of unduly suggestive police procedures, further
violated his due process rights; (iii) the admitted crime scene
and autopsy photos further violated his due process rights
because they were neither relevant to any contested issue at
trial, nor “necessary” to illustrate the medical examiner’s
testimony, so their only effect was to “inflame the jury”; and
(iv) the trial court’s failure to properly consider Walden’s
proffered mitigation, including his father’s criminal history,
“which may well have caused [his] conduct,” “because of a
previously formed decision to impose the death penalty,”
violated Eddings v. Oklahoma, 455 U.S. 104 (1982).3 See
Walden, 905 P.2d at 984–86, 989–90, 998–99.
In affirming Walden’s death sentence, the Arizona
Supreme Court conducted an independent review of
Walden’s mitigation evidence. Id. at 999. The court
concluded that Walden’s “difficult family background” was
“not a mitigating circumstance” because Walden did “not
explain how this had anything at all to do with the rapes and
the murder.” Id. (citing State v. Wallace, 773 P.2d 983, 986
(Ariz. 1989), for the rule that “[a] difficult family background
is a relevant mitigating circumstance if a defendant can show
that something in that background had an effect or impact on
his behavior that was beyond the defendant’s control”).
3
Eddings holds that a sentencer may “not be precluded from
considering, as a mitigating factor, any aspect of a defendant’s character
or record and any of the circumstances of the offense that the defendant
proffers as a basis for a sentence less than death.” Id. at 110 (quoting
Lockett v. Ohio, 438 U.S. 568, 604 (1978)).
WALDEN V. SHINN 13
F
On April 15, 1996, Walden’s convictions and sentences
became final when the United States Supreme Court denied
his petition for certiorari. See Walden v. Arizona, 517 U.S.
1146 (1996) (Mem.). Fifteen days later, Walden filed his first
notice for post-conviction relief (“PCR”) in state court.
Overlapping and long-running state PCR and federal habeas
proceedings followed.
1
After Walden filed his first state PCR petition, raising
arguments that are not at issue here, Walden filed a first
amended PCR petition which sought relief based solely on
the denial of severance. Relying on an intervening change in
Arizona law concerning the proper interpretation of Arizona’s
joinder and severance rules, Walden argued that the Arizona
Supreme Court erred in relying on a test, since overruled as
a matter of state law, to uphold the denial of severance in his
case. He further contended that: (1) the high court erred
under state evidentiary law in holding, in the alternative, that
the denial of severance did not prejudice him because the
evidence concerning each victim would have been cross-
admissible in separate trials on each set of counts, see
Walden, 905 P.2d at 985 (“In any event, even if severed, each
of the sexual assaults would have been admissible in the
separate trials.”); (2) Walden’s appellate counsel did not
adequately brief the severance issue; and (3) joinder
prejudiced Walden on appeal because it “forced” appellate
counsel to “devote a significant portion of his brief to argue
issues on the non-capital offenses.”
14 WALDEN V. SHINN
The PCR court dismissed the amended petition. It
concluded, inter alia, that the Arizona Supreme Court’s
alternative cross-admissibility ruling was correct as a matter
of state law because the other crimes evidence would have
been admissible on the questions of “mistaken identity and
alibi.” The Arizona Supreme Court denied review in October
1999.
2
In November 1999, Walden initiated federal habeas
proceedings in the United States District Court for the District
of Arizona by filing a pro se petition. The court appointed
the Federal Public Defenders as counsel, and issued two
orders directing that the amended petition “include all known
claims of constitutional error or deprivation.”
Walden filed his amended habeas petition (the
“operative” or “original” petition) on August 16, 2000. That
petition raised dozens of claims. Nine remain at issue in the
instant appeal. As on direct appeal in state court, Walden
asserted constitutional violations arising from the trial court’s
(i) denial of severance; (ii) admission of the Blanar, Velasco,
and Jordan identifications; (iii) admission of “gruesome”
crime scene and autopsy photos that were “neither relevant to
a disputed issue at trial regarding the cause of death, sequence
of events, premeditation or any other theory of the case” nor
“necessary to illustrate medical testimony regarding the
victim’s injuries”; and (iv) purported failure to consider all of
Walden’s proffered mitigation (“Claim 31”). In connection
with the severance claim, Walden’s amended habeas petition,
unlike his amended PCR petition, did not assign error to the
Arizona Supreme Court’s alternative basis for upholding the
WALDEN V. SHINN 15
denial of severance—the evidence would have been cross-
admissible in separate trials under state law.
In the amended petition, Walden also presented, for the
first time, five ineffective assistance of counsel (“IAC”)
claims. He alleged that trial counsel was ineffective in (v)
opening the door to the admission of Velasco’s 911 call
reporting the rape and for failing to object to that call’s
admission on prejudice grounds, and (vi) opening the door to
the admission of the 911 call that Burhans’s husband placed
after discovering her dead body and for failing to object to
that call’s admission on prejudice grounds. Walden further
alleged that sentencing counsel was ineffective for failing to
(vii) show the causal connection between the mitigation
presented and Walden’s crimes; (viii) object to, move for a
continuance based on, or show the causal connection
between his father’s criminal history and his crimes; and
(ix) thoroughly investigate and present mitigation evidence.
On October 16, 2000, Walden filed a court-ordered
statement of exhaustion, identifying “when and where each
ground of relief raised in the amended habeas petition was
presented in the state courts.” That same day, Walden,
without seeking the court’s leave, withdrew, inter alia, the
five IAC claims enumerated above from his petition. His
withdrawal notice explained that he was presenting those
claims in state court. Consistent with that representation, his
federal habeas counsel simultaneously filed a second PCR
notice in state court listing the withdrawn claims.
3
Back in state court, Walden, represented by new PCR
counsel, did not file his second PCR petition presenting the
16 WALDEN V. SHINN
withdrawn IAC claims until January 29, 2002.4 The PCR
court dismissed that petition in July 2002, concluding that
(i) Walden’s newly-presented mitigation evidence did not
“show by clear and convincing evidence that no reasonable
judge would have sentenced him to death”; and (ii) Walden’s
IAC claims were “precluded” because they should have
been raised in his first PCR proceeding under Arizona
Rule of Criminal Procedure 32.2(a)(3). Walden sought
reconsideration of the first, but not the second, conclusion,
and the PCR court denied his motion. On April 21, 2004, the
Arizona Supreme Court denied review.
4
Three months after the state PCR proceedings on his
withdrawn IAC claims concluded and nearly four years after
he had withdrawn those claims from his habeas petition,
Walden moved for leave to amend his habeas petition to
reintroduce those claims. In March 2005, the district court
denied his motion, holding both that amendment would be
futile and that Walden had unduly delayed seeking
amendment. With respect to futility, the court explained that
Walden procedurally defaulted his IAC claims because he did
not raise them in his initial state PCR proceedings and that
PCR counsel’s IAC could not excuse the default under then-
prevailing Supreme Court precedent. See Coleman v.
Thompson, 501 U.S. 722, 755 (1991). As to undue delay, the
court disagreed with Walden’s representation that he had no
choice but to withdraw his unexhausted IAC claims. The
court reasoned that the claims “were not truly ‘unexhausted,’”
4
Walden filed a proposed oversized petition on November 5, 2001,
with a motion to expand the page limit from 40 pages to 108 pages. The
PCR court denied the motion in December 2001.
WALDEN V. SHINN 17
but rather “‘technically exhausted’ [and] procedurally
defaulted”; therefore, Walden should have left the claims in
the petition and briefed whether he could “overcome any
alleged default of the Withdrawn Claims.” Instead of
“comply[ing] with th[e] [c]ourt’s order to include all of his
known claims in his Amended Petition,” Walden, “without
leave of the [c]ourt,” “withdr[ew] the claims and file[d] a
successive [PCR] petition.” Four years later, he sought “to
add them again in the same procedural posture as when they
were withdrawn—procedurally defaulted.” Based on this
history, the court found that Walden “made a tactical decision
to circumvent the process established by the rules and th[e]
[c]ourt,” establishing undue delay.
After the parties briefed the merits of the exhausted
claims, the district court denied relief. See Walden II, 2008
WL 2026217, at *44. The court rejected, as relevant here,
Walden’s challenges to: (i) the denial of severance; (ii) the
admission of the Blanar, Velasco, and Jordan identifications;
(iii) the admission of the crime scene and autopsy photos; and
(iv) the trial court’s purported failure to consider Walden’s
mitigation evidence at sentencing. See id. at *4–12, 19–21,
37–39.
5
While Walden’s appeal from the district court’s denial of
habeas relief was pending in this Court, the Supreme Court
decided Martinez v. Ryan, 566 U.S. 1 (2012), which
“qualifie[d] Coleman” by holding that PCR counsel’s IAC “at
initial-review collateral proceedings may establish cause for
a prisoner’s procedural default of a claim of ineffective
assistance at trial.” Id. at 9. Several months later, Walden
moved this Court for a limited remand to permit the district
18 WALDEN V. SHINN
court to reconsider his IAC claims in light of Martinez. A
motions panel granted the limited remand as to the five IAC
claims at issue here.
Subsequently, a two-judge panel of this Court, at the
district court’s request, expanded the limited remand to
include consideration of whether Walden’s petition was
affected by McKinney v. Ryan, 813 F.3d 798, 809 (9th Cir.
2015) (en banc) (holding that the Arizona Supreme Court
applied an unconstitutional “causal nexus” test to non-
statutory mitigation evidence by refusing to consider, “as a
matter of state law,” such evidence unless it was causally
connected to the defendant’s crime).
6
During the remand proceedings, Walden sought to excuse
the procedural default of his five IAC claims under Martinez,
but the State countered that there was no need to run the
Martinez analysis because those claims were untimely under
AEDPA’s one-year statute of limitations, see 28 U.S.C.
§ 2244(d)(1), and did not satisfy Federal Rule of Civil
Procedure (“Rule”) 15(c)’s relation-back standard for
amending outside the limitations period. In reply, Walden
argued that the proposed claims did relate back to certain
claims in his operative petition and, alternatively, that
applying Rule 15(c) to deny federal review of his claims
would be “inequitable” under Martinez.
Reconsidering its 2005 denial of leave to amend, the
district court agreed with the State that amendment remained
futile. The court explained that Walden’s proposed IAC
claims were untimely under AEDPA and that Walden could
not avoid the time bar because he did not invoke “any
WALDEN V. SHINN 19
grounds for equitable tolling,” and his proposed claims did
not relate back to any of his timely claims. The court also
reaffirmed its prior finding “regarding [Walden’s] tactical
decision to circumvent th[e] [c]ourt’s process” by
withdrawing his IAC claims, “resulting in undue delay.”
In the same order, the court further rejected Walden’s
argument that McKinney compels relief on Claim 31 of his
operative petition. The court observed that Claim 31 did not
allege that the trial court or the Arizona Supreme Court
refused to consider Walden’s proffered mitigation under the
causal nexus test at issue in McKinney. Thus, the causal
nexus claim presented for the first time in Walden’s
supplemental briefing on remand was untimely.
7
In its two orders denying habeas relief, the district court
granted a certificate of appealability with respect to the denial
of severance (“Claim 1”), see Walden II, 2008 WL 2026217,
at *44; the challenged identifications (“Claim 2”), see id.; and
the resolution of Claim 31 regarding the trial court’s
consideration of mitigation evidence (“Claim 3” on appeal).
We expanded the certificate to include two additional issues:
whether the district court erred in denying relief on the five
IAC claims remanded for reconsideration in light of Martinez
(“Claim 4”), and on the claim concerning the crime scene and
autopsy photos (“Claim 5”).
II
Walden’s habeas petition is subject to review under the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). See Murray v. Schriro, 745 F.3d 984, 996
20 WALDEN V. SHINN
(9th Cir. 2014). AEDPA limits “the availability of federal
habeas relief” for “claims previously ‘adjudicated on the
merits’ in state-court proceedings.’” Harrington v. Richter,
562 U.S. 86, 92 (2011). A habeas petitioner cannot secure
relief on such claims unless the state court’s adjudication:
(1) resulted in a decision that was contrary to,
or involved an unreasonable application of,
clearly established Federal law, as determined
by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d).
Under § 2254(d), a state prisoner “must show that the
state court’s ruling on the claim being presented in federal
court was so lacking in justification that there was an error
well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.” Harrington,
562 U.S. at 103. “[C]learly established federal law,” within
the meaning of § 2254(d)(1), is “limited to Supreme Court
authority that ‘squarely addresses’ the claim at issue and
provides a ‘clear answer.’” Yun Hseng Liao v. Junious, 817
F.3d 678, 689 (9th Cir. 2016) (quoting Wright v. Van Patten,
552 U.S. 120, 125–26 (2008) (per curiam)). And “an
unreasonable application of federal law is different from an
incorrect application of federal law.” Harrington, 562 U.S.
at 101 (citation omitted). Similarly, under § 2254(d)(2), a
state court’s factual determination is “not unreasonable
merely because the federal habeas court would have reached
WALDEN V. SHINN 21
a different conclusion.” Wood v. Allen, 558 U.S. 290, 301
(2010). Section 2254(d)(2) requires federal courts to “accord
the state trial court substantial deference.” Brumfield v. Cain,
576 U.S. 305, 314 (2015). “A state court’s factual findings
are unreasonable if ‘reasonable minds reviewing the record’
could not agree with them.” Ayala v. Chappell, 829 F.3d
1081, 1094 (9th Cir. 2016) (quoting Brumfield, 576 U.S. at
314).
Last, AEDPA prohibits federal courts from granting
habeas relief on claims for which the petitioner has not
“exhausted the remedies available in the courts of the State.”
28 U.S.C. § 2254(b)(1)(A). “Exhaustion requires that a
petitioner fairly present his federal claims to the highest state
court available.” Davis v. Silva, 511 F.3d 1005, 1008 (9th
Cir. 2008) (cleaned up). In turn, “[f]air presentation requires
that the petitioner describe in the state proceedings both the
operative facts and the federal legal theory on which his claim
is based so that the state courts have a fair opportunity to
apply controlling legal principles to the facts bearing upon his
constitutional claim.” Id. at 1009 (quotation marks omitted);
accord Robinson v. Schriro, 595 F.3d 1086, 1101 (9th Cir.
2010) (exhaustion requires “present[ing] both the factual and
legal basis for the claim”).
III
Applying these principles, we agree with the district court
that Walden is not entitled to habeas relief on any of his
claims.
22 WALDEN V. SHINN
A
The district court properly declined to grant habeas relief
as to Claim 1, which was based on the trial court’s denial of
severance. See Walden II, 2008 WL 2026217, at *4–5.
Given the Arizona Supreme Court’s alternative ruling that
evidence concerning each attack would have been admissible
in separate trials on each attack, see Walden, 905 P.2d at 985,
and Walden’s failure to assign any federal constitutional error
to that dispositive ruling in his first PCR petition or his
habeas petition, we affirm the denial of habeas relief as to
Claim 1.
1
As a preliminary matter, we have made clear that the
Supreme Court’s observation in United States v. Lane, 474
U.S. 438, 446 n.8 (1986), that “misjoinder would rise to the
level of a constitutional violation only if it results in prejudice
so great as to deny a defendant his Fifth Amendment right to
a fair trial” is dicta and does not “establish a constitutional
standard binding on the states.” Collins v. Runnels, 603 F.3d
1127, 1131 (9th Cir. 2010). The State accordingly argues that
Walden’s claim for habeas relief is barred by the absence of
clearly established federal law. Walden, in turn, asserts that
AEDPA is inapplicable because the state courts failed to
address the federal constitutional standard when denying his
joinder claim. We decline to resolve this dispute, as even
under the standards we have developed for analyzing joinder
challenges, Walden is not entitled to relief.
“We may grant habeas relief on a joinder challenge only
if the joinder resulted in an unfair trial.” Davis v. Woodford,
384 F.3d 628, 638 (9th Cir. 2004) (quotation marks omitted).
WALDEN V. SHINN 23
“The requisite level of prejudice is reached only if the
impermissible joinder had a substantial and injurious effect or
influence in determining the jury’s verdict.” Id. (quotation
marks omitted). In evaluating the prejudice due to joinder (if
any), we “focus[] particularly on cross-admissibility of
evidence,” id.—that is, whether evidence of an offense would
be admissible in a separate trial on another offense, and vice
versa. A finding of “cross-admissibility dispels the
prejudicial impact of joining all counts in the same trial” for
the simple reason that “[t]he jury would have heard the
evidence in any event.” Sandoval v. Calderon, 241 F.3d 765,
772 (9th Cir. 2000); see also Davis, 384 F.3d at 638–39
(denying habeas relief on a joinder challenge where, inter
alia, the evidence in support of both non-capital and capital
charges was “cross-admissible on the issues of identity and
intent”).
2
On direct appeal, the Arizona Supreme Court held that the
trial court did not abuse its discretion in declining to sever the
counts by victim because there were sufficient similarities
among the three attacks to permit joinder under the relevant
state rules of criminal procedure. Walden, 905 P.2d at984–85 (citing Ariz. R. Crim. Proc. 13.3(a)(3), 13.4(b)). The
court held, in the alternative, that “even if severed, each of the
sexual assaults would have been admissible in the separate
trials.” Id. at 985 (citing State v. Day, 715 P.2d 743, 747
(Ariz. 1986) (“Since evidence of [other assaults] would have
been admissible at separate trials, had they been granted,
severance would not have ameliorated any prejudice faced by
the appellant. Therefore, the trial court did not err by
refusing to grant severance.”)). The alternative cross-
admissibility holding forecloses Walden’s argument that
24 WALDEN V. SHINN
joinder rendered his trial fundamentally unfair. See Sandoval,
241 F.3d at 772.
Bean v. Calderon, 163 F.3d 1073 (9th Cir. 1998), is not
to the contrary. In Bean, we concluded that the joinder of two
murder cases, one of which was stronger than the other,
deprived the petitioner of a fair trial on the weaker case. Id.
at 1083. Unlike this case, however, the California Supreme
Court in Bean concluded that the evidence at issue was not
cross-admissible. Id. Thus, Bean is clearly distinguishable.
3
Whether the Arizona Supreme Court’s cross-admissibility
ruling was contrary to or involved an unreasonable
application of clearly established federal law is not before us.
Walden never assigned any federal error to that ruling in his
first state PCR proceedings. Nor did he so much as mention
the cross-admissibility ruling in either his habeas petition, or
his opening merits brief in support of his petition. It was not
until his reply brief that Walden contested the cross-
admissibility determination, and he did so under only state
law.
Because Walden did not challenge the cross-admissibility
ruling on federal grounds in his state PCR proceedings, we
must refrain from reviewing that issue. See 28 U.S.C.
§ 2254(b)(1)(A); Duncan v. Henry, 513 U.S. 365, 366 (1995)
(per curiam) (“If a habeas petitioner wishes to claim that an
evidentiary ruling . . . denied him the due process of law
guaranteed by the Fourteenth Amendment, he must say so . . .
in state court.”); see also 28 U.S.C. § 2254(b)(3) (“A State
shall not be deemed to have waived the exhaustion
requirement or be estopped from reliance upon the
WALDEN V. SHINN 25
requirement unless the State, through counsel, expressly
waives the requirement.”). Further, Walden forfeited any
such challenge by omitting it from his habeas petition. See
Robinson v. Kramer, 588 F.3d 1212, 1217 (9th Cir. 2009)
(“Habeas claims that are not raised before the district court in
the petition are not cognizable on appeal.” (quoting
Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir.
1994)); Rhoades v. Henry, 598 F.3d 495, 501 (9th Cir. 2010)
(holding that because the petitioner failed to raise a Brady
claim in his amended petition, “the claim is waived”).5
B
The district court also properly declined to grant habeas
relief as to claim 2, which was based on the trial court’s
admission of the Blanar, Velasco, and Jordan identifications.
See Walden II, 2008 WL 2026217, at *5–12. Contrary to
Walden’s arguments on appeal, the state court’s rejection of
this claim was not contrary to, or an unreasonable application
of, clearly established federal law, nor did it rest on an
unreasonable determination of the facts.
5
Although Walden challenged the cross-admissibility determination
on state law grounds in his first amended PCR petition, the district court
properly declined to review that ruling. See Walden II, 2008 WL
2026217, at *5. Because “it is not the province of a federal habeas court
to reexamine state-court determinations on state-law questions,” Estelle
v. McGuire, 502 U.S. 62, 67–68 (1991), we likewise decline to consider
whether the state court erred as a matter of state law in concluding that the
evidence regarding each victim would have been cross-admissible in three
separate trials. See Park v. California, 202 F.3d 1146, 1149 (9th Cir.
2000) (declining to reach a habeas petitioner’s contention that “under
California law, the crimes should not have been consolidated [where]
evidence relevant to one set of counts would not have been admissible at
a separate trial on the other set of counts” because “a violation of state law
standing alone is not cognizable in federal court on habeas”).
26 WALDEN V. SHINN
1
Under clearly established federal law (now and at the time
that the Arizona Supreme Court rendered its decision), a due
process challenge to eyewitness identifications is subject to
a two-step inquiry: First, a court must decide “whether the
police used an unnecessarily suggestive identification
procedure.” Perry v. New Hampshire, 565 U.S. 228, 235
(2012). Second, if there was “improper police conduct,” the
court must then decide whether such police conduct “created
a substantial likelihood of misidentification.” Id. at 239(cleaned up). “Reliability of the eyewitness identification is
the linchpin of [this] evaluation.” Id. (cleaned up); see also
Neil v. Biggers, 409 U.S. 188, 198–199 (1972) (explaining
that “unnecessary suggestiveness alone” does not “require[]
the exclusion of evidence”); Manson v. Brathwaite, 432 U.S.
98, 106 (1977) (“The admission of testimony concerning a
suggestive and unnecessary identification procedure does not
violate due process so long as the identification possesses
sufficient aspects of reliability.”).
The first step focuses on police conduct. See Perry, 565
U.S. at 232. If the police did not “arrange[] suggestive
circumstances leading the witness to identify a particular
person as the perpetrator,” the inquiry ends. Id.; see also
United States v. Bagley, 772 F.2d 482, 492 (9th Cir. 1985)
(“If we find that a challenged procedure is not impermissibly
suggestive, our inquiry into the due process claim ends.”).
The Supreme Court has identified some of the ways in
which an identification procedure may be unduly suggestive.
For example, a police-designed lineup that features
individuals “grossly dissimilar in appearance to the suspect”
is improperly suggestive. Perry, 565 U.S. at 243 (quoting
WALDEN V. SHINN 27
United States v. Wade, 388 U.S. 218, 233 (1967)); see also
Bagley, 772 F.2d at 493 (explaining that such lineups
“emphasize the focus upon a single individual,” thereby
“increas[ing] the danger of misidentification” (citing
Simmons v. United States, 390 U.S. 377, 382–83 (1968))).
The corollary to this principle, as we have explained, is
that “[m]ere variations in appearance among persons or
photographs presented to a witness do not automatically
invalidate a pretrial identification.” United States v.
Robertson, 606 F.2d 853, 857 (9th Cir. 1979); see also United
States v. Love, 746 F.2d 477, 479 (9th Cir. 1984) (per curiam)
(holding that a photographic lineup procedure was not
impermissibly suggestive where “all of the photographs were
reasonably similar in appearance to Love”). Certain police
commentary before and during an identification procedure
may also amount to “improper suggestion,” such as when the
police tell the witness “that they have caught the culprit after
which the defendant is brought before the witness alone or is
viewed in jail” or when the police “point[] out” the suspect
“before or during a lineup.” Perry, 565 U.S. at 243 (quoting
Wade, 388 U.S. at 233).
2
The state court’s rejection of Walden’s due process
challenge to the photographic lineup used with Blanar,
Velasco, and Jordan was consistent with the foregoing
principles and rested on factual findings that were objectively
reasonable.6
6
Under Johnson v. Williams, 568 U.S. 289, 298–99 (2013), we
presume that the state court adjudicated Walden’s federal challenge to the
identification procedures on the merits. Even though the state court did
28 WALDEN V. SHINN
First, the Arizona Supreme Court identified the correct
legal standard governing the suggestiveness of photographic
lineups: “The law only requires that line-ups depict
individuals who basically resemble one another such that the
suspect’s photograph does not stand out.” Walden, 905 P.2d
at 985 (cleaned up); compare id. with Perry, 565 U.S. at 243(explaining that “[i]mproper suggestion” occurs when lineups
feature individuals “grossly dissimilar in appearance to the
suspect” (quoting Wade, 388 U.S. at 233) (emphasis added)).
Next, the Arizona Supreme Court concluded that Walden’s
photo (number 5) did not stand out because, as a factual
matter, “those shown resembled one another. All were
similar in age, build, hair color, and hair length,” and “[t]he
fact that two had blue eyes and different complexions [wa]s
inconsequential.” Walden, 905 P.2d at 985.
The record shows that it was not objectively unreasonable
for the Arizona Supreme Court to conclude that the photos
generally resemble one another and the lineup was not
suggestive. Id.; see also Love, 746 F.2d at 479 (rejecting, on
direct appeal, Love’s suggestive identification challenge to a
photo lineup where “all of the photo[s] were reasonably
similar in appearance to Love” (emphasis added)). To the
extent there are differences between Walden and the other
not expressly cite federal precedent in rejecting that challenge, see
Walden, 905 P.2d at 985–86, Walden cannot rebut this presumption
because Arizona’s two-step test for determining whether such procedures
are impermissibly suggestive “mirrors” the constitutional analysis. Day,
715 P.2d at 748; see also Walden, 905 P.2d at 985 (citing Day, 715 P.2d
at 748); Kipp v. Davis, 971 F.3d 939, 950 (9th Cir. 2020) (explaining that
the Johnson presumption is appropriate where “the line of state precedent
could be viewed to fully incorporate a related federal constitutional
right”).
WALDEN V. SHINN 29
five men pictured in the lineup, they are too subtle to amount
to improper suggestion. See Robertson, 606 F.2d at 857.
At least five of the six men are obviously white (numbers
2, 3, 4, 5, and 6); at least four of the six men appear to be in
the same age range (numbers 1, 3, 5, and 6); and at least four
of the six men appear to have similar skin and hair coloring
as well as hair length and type (numbers 3, 4, 5, and 6).
Given the lack of “gross[] dissimilar[ity]” in the photo array,
Perry, 565 U.S. at 243, we cannot agree that the Arizona
Supreme Court unreasonably rejected Walden’s argument
that the police “arranged [the array] as to make” Walden’s
identification “virtually inevitable.” Cf. Foster v. California,
394 U.S. 440, 443 (1969); see also United States v. Beck, 418
F.3d 1008, 1012 (9th Cir. 2005) (rejecting, on direct review,
a claim that the composition of a photospread was improperly
suggestive where “all six of the pictures [we]re of Caucasian
males in the same age range, with similar skin, eye, and hair
coloring”; “[f]our of the six photos show[ed] men with
similar length hair, with two having somewhat shorter hair”;
and five of the photographed men were “clean-shaven”).
3
The state court did not rule contrary to, nor unreasonably
apply, clearly established federal law when it determined that
the police did not taint Blanar’s and Velasco’s identifications
by informing each victim, after she had chosen Walden’s
photo, that the police had a man in custody, or by providing
Velasco with an article concerning Walden’s arrest for
another assault and a homicide. See Walden, 905 P.2d at 985(“We have . . . consistently held that when the identification
procedure is not suggestive in the first place, such subsequent
30 WALDEN V. SHINN
comments do not taint the initially fair procedure.” (citation
omitted)).
The record supports this conclusion. Before Blanar
viewed the lineup, the officer administering the lineup told
her that she did not have to identify anyone. After Blanar
selected Walden’s photo and repeatedly said, “That’s him,”
the officer told Blanar that the man who assaulted her was in
custody. However, the officer did not tell Blanar she had
picked the “right guy.” Likewise, before Velasco viewed the
photo array, the officer administering the lineup reminded her
that there was no need to identify anyone, and it was just as
important to free innocent persons of suspicion. After
Velasco selected Walden’s photo, the officer told her that
“he” was in jail, but did not tell Velasco that she had picked
the “right guy.” The officer gave Velasco an article about
Walden’s arrest for other crimes, but it did not include a
picture of him, see id., and the officer did not inform Velasco
that police had matched a fingerprint on a shoe that she had
been wearing during the assault to Walden.
On this record, the state court reasonably concluded that
the police’s post-identification remarks and conduct did not
constitute “improper suggestion.” Perry, 565 U.S. at 243(explaining that “improper suggestion” occurs where the
police tell the witness “that they have caught the culprit after
which the defendant is brought before the witness alone or is
viewed in jail” or when the police “point[] out” the suspect
“before or during a lineup” (quoting Wade, 388 U.S. at 233)
(emphasis added)); cf. also United States v. Bowman, 215
F.3d 951, 966 (9th Cir. 2000) (rejecting, on direct appeal,
suggestive identification claim where “[t]he witnesses were
told that they need not make an identification if they were not
confident”); Love, 746 F.2d at 479 (rejecting, on direct
WALDEN V. SHINN 31
appeal, suggestive identification claim where “each time [the
witness] was shown a lineup, she was told that the robber
might or might not be included and that she should not feel
compelled to make an identification”).
4
The Arizona Supreme Court reasonably declined to infer
improper police influence from the fact that Jordan selected
Walden’s photo during a two-minute off-the-record
conversation with a detective after she had tentatively
identified another individual as resembling one of two men
she had seen at Burhans’s complex on June 13. See Walden,
905 P.2d at 985 (reaching this conclusion after “listening to
the tape” of the conversation between Jordan and the
detective and “reviewing the transcript of the [evidentiary]
hearing”).
The Arizona Supreme Court’s summary of the
circumstances surrounding Jordan’s identification finds
ample support in the record and reflects that nothing
untoward occurred between police and Jordan, contrary to
Walden’s speculation, see Walden II, 2008 WL 2026217,
at *11 (“[Walden’s] argument about Jordan’s pretrial
identification boils down to this statement: ‘It is simply too
difficult to accept, in terms of due process, that Ms. Jordan
could go from not recognizing Mr. Walden at all prior to the
tape being turned off to being able to make a positive
identification of him after the tape resumed.’” (citation
omitted)):
[Jordan] saw two men [on June 13] at the
[Burhans’s] apartment complex. One stood
out because he had been acting strangely, and
32 WALDEN V. SHINN
she made a mental note of it. When she heard
about the murder, she called the police. After
viewing the photographic line-up (the same
one shown to [Blanar] and [Velasco]),
[Jordan] indicated that the person in the
number two position, which was not Walden,
“looked very similar to the person [she] saw.”
She said that his eyes and complexion were
similar but that his nose was different.
Believing they were finished, the officer
turned the tape off. [Jordan], still looking at
the photographs, then indicated that although
some of the pictures looked similar to the man
who had acted strangely, she had definitely
seen the man pictured in the number five
position, which was Walden. She stated that
he had looked like a maintenance person or
was “doing something in the yard” of the
complex. She also stated that Walden had
some type of equipment with him.
The officer immediately turned the tape
recorder back on. She explained on tape what
had just happened, and [Jordan] confirmed it.
At the [suppression] hearing, both [Jordan]
and the officer verified that the tape
accurately reflected what had occurred
off-tape. Walden did not offer any evidence to
rebut their testimony. Nor did he elicit on
cross-examination anything that would
contradict this explanation of the off-tape
conversation.
Id. at 985–86.
WALDEN V. SHINN 33
The Arizona Supreme Court’s conclusion that Jordan “did
not take part in a suggestive identification procedure” was not
unreasonable on this record. Id. at 986.
5
Because the Arizona Supreme Court reasonably
determined that the three identifications at issue were not the
product of impermissibly suggestive police procedures, there
was no need for the court to assess the reliability of each
identification under the totality of the circumstances. See
Perry, 565 U.S. at 248 (“[T]he Due Process Clause does not
require a preliminary judicial inquiry into the reliability of an
eyewitness identification when the identification was not
procured under unnecessarily suggestive circumstances
arranged by law enforcement.”); see also Bagley, 772 F.2d at
492; Love, 746 F.2d at 478. To the extent Walden argues
otherwise, he is mistaken.
6
Finally, we reject Walden’s challenge to the Velasco
identification insofar as it rests on a factual basis that he
failed to present to the Arizona Supreme Court. See 28
U.S.C. § 2254(b)(1)(A); Robinson, 595 F.3d at 1101(exhaustion requires “present[ing] both the factual and legal
basis for the claim to the state court”). Because Walden did
not give the state court a “fair opportunity” to consider this
factual basis for his challenge to the Velasco identification,
we lack jurisdiction to consider whether those facts establish
a constitutional violation. See Davis, 511 F.3d at 1008–09.
34 WALDEN V. SHINN
C
As to Claim 3, the district court properly concluded that
McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015) (en banc),
has no impact on Claim 31 of Walden’s habeas petition. In
Claim 31, Walden argued that the state trial court failed to
properly consider the mitigating evidence, given that the
court had prepared a special verdict before the submission of
evidence. Because Walden did not identify any causal nexus
error by the Arizona Supreme Court in Claim 31, his belated
claims of causal nexus error are not cognizable on appeal.
D
As to Claim 4, the district court properly denied Walden
leave to amend his habeas petition to add five previously-
withdrawn IAC claims on the grounds that those claims are
untimely and do not relate back to his timely-filed claims and
that Walden unduly delayed seeking leave to amend. We
deny Walden’s request, made for the first time on appeal, for
equitable tolling.
1
Under Rule 15 of the Federal Rules of Civil Procedure,7
the civil rule governing amended pleadings, an amendment
made after the statute of limitations has run “relates back to
the date of the original pleading,” thereby avoiding AEDPA’s
time bar, when “the amendment asserts a claim . . . that arose
7
“Habeas Corpus Rule 11 permits application of the Federal Rules
of Civil Procedure in habeas cases to the extent that the civil rules are not
inconsistent with any statutory provisions or the habeas rules.” Mayle v.
Felix, 545 U.S. 644, 654 (2005) (cleaned up).
WALDEN V. SHINN 35
out of the conduct, transaction, or occurrence set out—or
attempted to be set out—in the original pleading.” Rule
15(c)(1)(B). Walden sought leave to amend his petition to
include the five IAC claims at issue here several years after
the deadline for filing his habeas petition had passed. See
Walden v. Arizona, 517 U.S. 1146 (1996) (Mem.) (denying
certiorari). Thus, the district court properly focused its
timeliness analysis on whether any of the proposed IAC
claims relate back to the timely-filed claims under Rule 15(c).
To satisfy Rule 15(c)’s relation-back standard, the
proposed claims and the “original” claims must be “tied to a
common core of operative facts.” Hebner v. McGrath, 543
F.3d 1133, 1138 (9th Cir. 2008) (quoting Mayle, 545 U.S. at
664). “An amended habeas petition ‘does not relate back
(and thereby escape AEDPA’s one-year time limit) when it
asserts a new ground for relief supported by facts that differ
in both time and type from those the original pleading set
forth.’” Id. (quoting Mayle, 545 U.S. at 650). In other words,
“relation back requires a single course or pattern of
conduct—not factually and temporally unrelated conduct
arising out of the same underlying proceeding.” Ross v.
Williams, 950 F.3d 1160, 1171 (9th Cir. 2020) (en banc).
After carefully comparing the proposed IAC claims to the
timely claims on which Walden relies to support relation
back, we agree with the district court that they lack a
“common core of operative facts.” Hebner, 543 F.3d at 1138.
As the district court observed with respect to these claims,
“not only are the actors different, the alleged error different,
and the time [each] claim arose different, the core operative
facts are almost entirely unique to each claim.” Thus, the
“barrier to relation back” here “is the difference between [the
claims’] respective factual predicates.” Alfaro v. Johnson,
36 WALDEN V. SHINN
862 F.3d 1176, 1184 (9th Cir. 2017); see also Schneider v.
McDaniel, 674 F.3d 1144, 1151 (9th Cir. 2012).
Thus, without the need to discuss the claims in detail, we
agree with the district court that the new claims do not satisfy
the requirements of Rule 15(c).
2
We also deny Walden’s belated request for equitable
tolling—made for the first time on appeal. Because Walden
did not raise this issue before the district court, we review it
for plain error. United States v. Olano, 507 U.S. 725, 734
(1993). In order to find plain error, we must determine that
(1) there was “error”; (2) it was “plain”; and (3) the error
affected “substantial rights.” Id. at 732–35.
Although the AEDPA statute of limitations is subject to
equitable tolling, in order to be entitled to equitable tolling, a
petitioner must show “(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance
stood in his way and prevented timely filing.” Smith v. Davis,
953 F.3d 582, 588 (9th Cir. 2020) (en banc) (cleaned up).
Here, the district court’s independent finding, in denying the
motion to file an amended petition, that Walden did not
exercise due diligence in pursuing the amended claims is
amply supported by the record. Absent due diligence,
Walden is not entitled to equitable tolling, and the district
court did not commit plain error.
As we have noted, Walden filed his initial federal habeas
petition in November 1999. After the district court requested
a statement concerning exhaustion, he filed an amended
petition on August 16, 2000, which included the IAC claims.
WALDEN V. SHINN 37
In October 16, 2000, he withdrew the IAC claims. Three
months after the state courts deemed those claims
procedurally barred because he had not previously raised
them in state court, and four years after he had withdrawn
them from the federal proceedings, he sought amendment to
re-assert them in federal court. The district court noted that,
instead of complying with the court’s order and attempting to
establish cause and prejudice to excuse the procedural
defaults, Walden voluntarily withdrew the claims without
leave of court. In sum, following his conviction in 1992,
Walden did not assert the IAC claims in state court. He first
asserted them in federal court eight years later, then withdrew
them, then attempted to reassert them four years later. The
record supports the district court’s conclusion that Walden
had not exercised due diligence, and there was no plain error
in not applying the doctrine of equitable tolling.
Walden further contends, for the first time in
supplemental briefing filed shortly before oral argument in
this case, that he is entitled to equitable tolling under
Williams v. Filson, 908 F.3d 546 (9th Cir. 2018), which was
decided after the district court order. However, Williams is
inapplicable here. In Williams, we held that the district court
had erred in denying equitable tolling where the petitioner,
who filed his amended habeas petition nearly one year after
the AEDPA deadline, reasonably “assumed that the claims
asserted in his amended petition” would relate back to his
original petition based on the then-unsettled state of the law
regarding the relation-back standard in habeas cases. Id. at
559–61. However, unlike the situation in Williams, based on
a survey of the law as it stood in October 2000—when
Walden withdrew his IAC claims—there was not a
reasonable expectation that the district court would later
38 WALDEN V. SHINN
deem those claims related to the remaining claims under Rule
15(c).
As we noted in Williams, federal circuit courts—albeit not
the Ninth—first began “imposing a more restrictive reading
of Rule 15(c)” in February 1999, id. at 560—before Walden
withdrew the five IAC claims. See United States v.
Craycraft, 167 F.3d 451, 457 (8th Cir. Feb. 3, 1999); see also
United States v. Duffus, 174 F.3d 333, 337 (3d Cir. Apr. 20,
1999); United States v. Pittman, 209 F.3d 314, 317–18 (4th
Cir. Mar. 24, 2000); Davenport v. United States, 217 F.3d
1341, 1344–46 (11th Cir. July 13, 2000). Given a rapidly-
emerging circuit-level consensus that “transaction” or
“occurrence” in Rule 15(c) did not broadly refer to a
petitioner’s conviction and trial, Walden’s counsel, unlike
Williams’s, had ample “reason to suspect that Rule 15(c)
would pose an obstacle to consideration of newly added
claims in an amended petition.” Williams, 908 F.3d at 560.
Further, in Williams, unlike the situation here, the State did
not contest Williams’ diligence in pursuing his rights in the
year between the end of the limitations period and the filing
of his amended petition. See id. at 558. Finally, unlike the
situation in Williams, the district court here did not authorize,
nor did the State consent to amendment outside the
limitations period. To the contrary, the district court here
ordered Walden to file, by a deadline well within the
limitations period, an amended petition asserting “all known
claims of constitutional error or deprivation.”
In sum, Walden’s IAC claims are time-barred because
they do not relate back to any timely-filed claims and he is
not entitled to equitable tolling.
WALDEN V. SHINN 39
E
As to Claim 5, the district court properly concluded that
the trial court’s admission of 19 purportedly “gruesome”
crime scene and autopsy photos does not entitle Walden to
habeas relief because the state court’s decision did not
involve an objectively unreasonable application of clearly
established Supreme Court precedent or an objectively
unreasonable determination of the facts. See Walden II, 2008
WL 2026217, at *19–21.
1
Walden’s argument is foreclosed by Holley v.
Yarborough, in which we held that there was, at that time, no
clearly established federal law providing that the “admission
of irrelevant or overtly prejudicial evidence constitutes a due
process violation sufficient to warrant issuance of the writ.”
568 F.3d 1091, 1101 (9th Cir. 2009) (rejecting challenge to
the admission of sexually explicit materials seized from
Holley’s bedroom during his trial for, inter alia, child
molestation). That remains true.
2
Further, the Arizona Supreme Court reasonably reached
the following conclusions: (i) The photos were relevant to the
disputed issue of premeditation as well as “helpful to
illustrate” Dr. Howard’s “long and detailed” testimony
regarding Burhans’s injuries; and (ii) they were not unduly
prejudicial because “only three show[ed] [Burhans’s] body at
the crime scene, and only one of those actually show[ed]
[her] wounds,” while the autopsy photos showed her body
after it “had been washed” and were mostly “close-ups of her
40 WALDEN V. SHINN
various wounds.” Walden, 905 P.2d at 989. As the district
court observed in denying relief on this claim, see Walden II,
2008 WL 2026217, at *19–21, these conclusions find ample
support in the record. In addition, the record reflects that the
trial court exercised considerable care in shielding the jury
from unnecessary exposure to excessively gruesome photos
by excluding a subset of photos from admission into
evidence.
Walden contends that he offered to stipulate to the
victim’s injuries, so that the introduction of the evidence was
unnecessary. However, “nothing in the Due Process Clause
of the Fourteenth Amendment requires the State to refrain
from introducing relevant evidence simply because the
defense chooses not to contest the point.” McGuire, 502 U.S.
at 70. He further argues that the photographs were
inadmissible under Arizona state law; however, we cannot
grant federal habeas relief founded on an alleged non-
constitutional state evidentiary error. See Romano v.
Oklahoma, 512 U.S. 1, 10 (1994) (“That the evidence may
have been irrelevant as a matter of state law . . . does not
render its admission federal constitutional error.”); McGuire,
502 U.S. at 67 (“[F]ederal habeas corpus relief does not lie
for errors of state law.” (citation omitted)). In sum, we affirm
the district court’s denial of habeas relief in connection with
Claim 5.8
8
On appeal, Walden now argues that consideration of the challenged
photos during the sentencing phase violated his due process rights
(separate and apart from his challenge to their admission at trial). Walden
did not present this claim to the Arizona Supreme Court or in his operative
habeas petition. See Walden, 905 P.2d at 989; Walden II, 2008 WL
2026217, at *19–21. Therefore, we hold that this claim is both
unexhausted and waived. See Davis, 511 F.3d at 1008–09; Robinson, 588
F.3d at 1217.
WALDEN V. SHINN 41
IV
For the foregoing reasons, we affirm the district court’s
well reasoned denial of Walden’s petition for a writ of habeas
corpus.
AFFIRMED.