Gregory Dickens v. Charles L. Ryan , 688 F.3d 1054 ( 2012 )


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  •                 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 filled 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.