FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

CHAD ALAN LEE,                            No. 09-99002

             Petitioner-Appellant,           D.C. No.
                                         2:01-CV-02178-
 v.                                           EHC

RYAN THORNELL,

OPINION

             Respondent-Appellee.

      Appeal from the United States District Court
               for the District of Arizona
       Earl H. Carroll, District Judge, Presiding

       Argued and Submitted November 14, 2023
               San Francisco, California

                  Filed June 11, 2024

Before: Consuelo M. Callahan, Jacqueline H. Nguyen, and
            Daniel A. Bress, Circuit Judges.

                Opinion by Judge Bress
2                        LEE V. THORNELL


                          SUMMARY*


               Habeas Corpus / Death Penalty

   The panel affirmed the district court’s denial of Chad
Lee’s 

 habeas corpus petition, and the
denial of Lee’s motion for leave to amend, in a case in which
Lee was convicted and sentenced to death for three murders.
    In Claim 2, Lee argued that his trial counsel was
constitutionally ineffective at sentencing because he failed
to investigate and present mitigating evidence that Lee
suffered from Fetal Alcohol Syndrome and Fetal Alcohol
Effect. He maintained that his in utero exposure to alcohol
caused organic brain damage, a substantial mitigating factor.
Because Lee did not raise this claim in his postconviction
relief petition, it is procedurally defaulted. The evidence that
Lee would bring forward to establish cause and prejudice, as
well as the underlying ineffective assistance of trial counsel
claim, was not developed in the state court proceedings. Lee
assigned further error to the district court’s failure to hold an
evidentiary hearing to further develop these facts.
    Lee offered two novel theories for obtaining a federal
evidentiary hearing notwithstanding 

(e)(2),
which places strict limits on when federal courts can hold
evidentiary hearings and consider new evidence when the
habeas petitioner has failed to develop the factual basis for
his claim in state court proceedings. The panel held that (1)
Lee’s theory based on his alleged abandonment by state
postconviction counsel lacks merit; (2) Lee’s theory—that

*
 This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                       LEE V. THORNELL                       3


the Arizona Supreme Court did not follow a “meaningful
process” when it appointed postconviction counsel, such that
the requirements of § 2254(e)(2) do not apply—also fails;
and (3) Lee’s two theories also do not provide “cause” to
excuse his failure to raise his ineffective assistance claim in
state postconviction proceedings.
    The panel held that even if Lee could demonstrate cause
to excuse the procedural default, Lee cannot demonstrate
prejudice. Lee’s prejudice argument depended on the new
evidence of alleged organic brain damage from fetal alcohol
exposure that Lee did not put forward in state court, and
§ 2254(e)(2) prevents federal courts from considering that
evidence. Lee did not argue that, absent his new evidence,
he can demonstrate ineffective assistance of trial counsel for
failure to investigate and present fetal-alcohol evidence at
sentencing. His ineffective assistance claim necessarily fails,
and he cannot show prejudice to excuse his procedural
default. But even considering Lee’s new theory and
evidence, Lee still cannot show prejudice because his
underlying ineffective assistance claim lacks merit. That is,
because Lee can show neither that his trial counsel
performed deficiently nor that his alleged deficient
performance prejudiced him, Lee cannot demonstrate
prejudice from postconviction counsel’s failure to raise the
fetal alcohol ineffective assistance theory in state
postconviction proceedings.
    In Proposed Claim 26, Lee asserted that the Arizona
Supreme Court erred on direct appeal by unconstitutionally
requiring him to establish a causal nexus between his crimes
and his mitigating evidence. The panel held that the district
court correctly denied leave to add this claim because it was
untimely under 

(d)(1). The panel rejected
Lee’s argument that Proposed Claim 26 shared a common
4                     LEE V. THORNELL


core of operative facts with Claim 19, which argued that
Arizona’s capital sentencing scheme is unconstitutionally
overbroad. The panel held that even if it were timely,
Proposed Claim 26 is procedurally defaulted. The panel held
that Proposed Claim 26 also fails on the merits because the
Arizona Supreme Court did not apply an unconstitutional
causal nexus test, and Lee cannot in any event show
prejudice.


                        COUNSEL

Timothy M. Gabrielsen (argued), Assistant Federal Public
Defender; Jon M. Sands, Federal Public Defender, District
of Arizona; Federal Public Defender’s Office, Tucson,
Arizona; for Petitioner-Appellant.
Jason D. Lewis (argued), David E. Ahl and Andrew S.
Reilly, Assistant Attorneys General, Capital Litigation
Section; Jeffrey L. Sparks, Deputy Solicitor General, Capital
Litigation Chief; Kristin K. Mays, Arizona Attorney
General; Office of the Arizona Attorney General, Phoenix,
Arizona; for Respondent-Appellee.
                       LEE V. THORNELL                       5

OPINION

BRESS, Circuit Judge:

    In April 1992, Chad Lee killed three people in three
weeks. He was sentenced to death for each murder. The
Arizona Supreme Court affirmed Lee’s convictions and
sentence on direct appeal and denied his petitions for state
postconviction relief. Lee then sought federal habeas relief
under 

, which the district court denied. We
affirm.
                               I
                              A
     We describe the facts of Lee’s offenses, drawing largely
from the Arizona Supreme Court’s decisions on direct
appeal. State v. Lee, 

 (Ariz. 1997) (Lee
I); State v. Lee, 

 (Ariz. 1997) (Lee II).
    On April 6, 1992, Lee, then 19 years old, and his
accomplice, David Hunt, age 14, called Pizza Hut from a pay
phone and ordered a pizza delivered to a vacant house.
When Linda Reynolds arrived with the pizza, Lee and Hunt
pointed a rifle at her and forced her to remove her shorts and
shirt. The two put Reynolds in Lee’s car, and Lee drove her
into the desert. Hunt drove Reynolds’s car to meet them.
    Once in the desert, Lee and Hunt removed Reynolds’s
car stereo, smashed the windows and other parts of her car
with a bat, punctured the tires, cut various hoses and wires
to disable the engine, and shot a bullet through the hood. Lee
later testified that he destroyed Reynolds’s car to prevent her
from escaping.
6                     LEE V. THORNELL


    Lee and Hunt forced Reynolds to remove her shoes,
socks, and pantyhose and to walk barefoot into the desert.
Hunt then raped her, and Lee forced Reyolds to perform oral
sex on him. After finding Reynolds’s bank card in her
wallet, Lee drove Reynolds and Hunt to an ATM. Lee gave
Reynolds his flannel shirt to wear and then forced Reynolds
to withdraw $20 of the $27 she had left in her account.
    From there, Lee and Hunt drove Reynolds back into the
desert. Reynolds tried to escape, but Hunt forced her back
to the car. By the time she was returned to the car, her face
and lips were bloody. According to Lee, Lee and Hunt
argued in front of Reynolds over whether to kill her, and
Reynolds “freaked” and tried to grab the gun.
     Lee shot Reynolds once in the head. But Reynolds was
still alive. Lee retrieved a knife from his car and twice
stabbed Reynolds in the chest to “put her out of her misery.”
Lee and Hunt then drove away. Medical evidence indicated
that Reynolds “would have been alive for at least a couple
minutes, and probably more,” following the stabbings. The
next day, Lee pawned Reynolds’s car stereo, wedding ring,
and gold ring for a total of $170.
    Ten days later, on April 16, 1992 around midnight, Lee
used another payphone to call a taxi. David Lacey was
dispatched to pick up Lee. Meanwhile, Hunt drove Lee’s car
to the location where Lee and Hunt planned to rob the driver.
When Lacey arrived, Lee pulled out a revolver and
demanded money. According to Lee, Lacey attempted to
grab the gun. Lee then fired nine shots, four of which hit
Lacey. Lee took “forty dollars from Lacey’s pockets and
dumped his body by the side of the road.” Lee then drove
Lacey’s cab to a dirt road, where he searched the cab’s
contents and shot its windows and tires.
                        LEE V. THORNELL                       7


    On April 27, 1992, Lee entered a convenience store
around 1:00 a.m. to purchase cigarettes. When Harold
Drury, the store clerk, opened the cash drawer, Lee shot
Drury in the shoulder, causing Drury to fall backwards. Lee
then “shot Drury in the top of the head, the forehead, the
cheek, and the neck.” After Drury slumped to the floor, Lee
“walked around the counter and shot Drury two more times
in the right temple.” Lee retrieved the cigarettes and took
the cash drawer before leaving the store. Hunt was waiting
in Lee’s car, and they left together.
                               B
   Not long after, in May 1992, police apprehended Lee and
Hunt after various pieces of physical evidence connected
them to the murders. Lee I, 944 P.2d at 1210. As to Linda
Reynolds, Lee was indicted for first-degree murder,
kidnapping, two counts of sexual assault, armed robbery,
and theft. Id. at 1211. Lee was also indicted for the first-
degree murders and armed robberies of David Lacey and
Harold Drury. Id. Lee was tried in the Superior Court of
Maricopa County in 1994. The trial court severed the counts
involving Reynolds and Lacey (Lee I) from the counts
involving Drury (Lee II). Lee II, 944 P.2d at 1226.
    To prepare for a possible capital sentencing, Lee’s trial
counsel, Alan Simpson, applied for funds to hire Dr. Mickey
McMahon, a clinical psychologist. When doing so, Simpson
flagged Lee’s deprived childhood and evidence of Lee’s
psychological and cognitive defects. Simpson specifically
noted that Lee’s sister’s “strongest memory of her mother
was sitting in a chair, a beer and cigarette in one hand, a book
in another.”
    Simpson did other work to investigate mitigating
circumstances, as well. Simpson obtained Lee’s school
8                      LEE V. THORNELL


records, which indicated that at the time Lee dropped out in
the ninth grade, he had a cumulative GPA of 1.20. Based on
“[p]reliminary discussions with Dr. McMahon,” Simpson
“believe[d] that [Lee’s] background contributed to the
development of . . . recognized psychological and cognitive
defects over which [Lee] had no control.” A letter written to
Simpson by his investigator, Ed Aitken, indicates that both
Simpson and Aitken suspected early on that Lee may have
suffered from “alcohol syndrome.” As we discuss in greater
detail below, however, Dr. McMahon did not believe that
Lee suffered from such a syndrome.
     In the Lee I trial, Lee was convicted of all charged
offenses, including two counts of first-degree murder for the
killings of Reynolds and Lacey. 944 P.2d at 1211. During
sentencing proceedings, Dr. McMahon provided extensive
testimony to establish a mitigating portrait of Lee based on
his troubled family background, “follower” personality, age,
and mental shortcomings.
    Dr. McMahon described the parental abandonment that
Lee suffered during his early childhood and its severe
consequences for Lee’s adolescent development. Dr.
McMahon also testified that Lee suffered from attention
deficit disorder. To demonstrate that Lee was “a dependent
kind of person” and “submissive,” Dr. McMahon testified
about the results of a personality test that he administered to
Lee, indicating that on a scale of 1.0 (non-leader) to 10.0
(leader), Lee scored a 1.1. According to Dr. McMahon, Lee
experienced “times when his ability to perceive reality is
significantly compromised.” As a result, Lee would
sometimes “not appreciate the total impact of the situation
he is in and how it affects him and the people around him.”
                       LEE V. THORNELL                      9


     In Lee I, the trial court sentenced Lee to consecutive,
aggravated terms of imprisonment totaling 101 years for the
noncapital convictions. Lee I, 944 P.2d at 1211. For each
of the murders, and operating pre-Ring v. Arizona, 

 (2002), the court sentenced Lee to death. 

 The trial
court found the following aggravating circumstances for
both death sentences: previous death-eligible conviction,
previous violent felony, and pecuniary gain. 

 In addition,
the court found that the Reynolds murder was especially
cruel, heinous, and depraved. 

 As mitigating factors, the
trial court acknowledged “defendant’s age, lack of
significant prior criminal history, deprived childhood,
cooperation with law enforcement officials and assistance in
recovery of weapons, and remorse.” 

    In the Lee II trial, a unanimous jury found Lee guilty of
felony murder and premeditated murder. Lee II, 944 P.2d at
1226. After considering the same mitigating evidence
presented in Lee I, the trial court sentenced Lee to death for
the murder and a consecutive 21-year term for the armed
robbery. Id. The court found four statutory aggravating
circumstances for the death sentence: previous death-
eligible convictions for the Reynolds and Lacey murders,
previous violent felonies, pecuniary gain, and offense
committed in an especially cruel, heinous, or depraved
manner. Id. at 1227. The trial court found Lee’s “age, lack
of significant prior criminal history, and deprived childhood
to be mitigating circumstances.” Id.
    The Arizona Supreme Court affirmed Lee’s convictions
and sentences in two separate opinions. Lee I, 

; Lee II, 

. The court “independently
reviewed and weighed the aggravating and mitigating
circumstances” related to each murder. Lee II, 944 P.2d at
1233–34; see also Lee I, 944 P.2d at 1221. As to the Drury
10                    LEE V. THORNELL


murder, the court found that “the state proved the following
aggravation beyond a reasonable doubt: (a) previous death-
eligible conviction, (b) previous violent felony, (c)
pecuniary gain, and (d) that the murder was committed in an
especially heinous and depraved manner.” Lee II, 944 P.2d
at 1234. It also found that Lee “proved the following
mitigation by a preponderance of the evidence: (a) age, (b)
lack of significant prior criminal history, and (c) deprived
childhood.” Id. As to the Reynolds murder, the Arizona
Supreme Court found the same aggravating and mitigating
factors, with the additional mitigating factors of
“cooperation with law enforcement officials” and
“remorse.” Lee I, 944 P.2d at 1211. The court found that all
these aggravating and mitigating factors applied to the Lacey
murder, except that the Lacey murder was not depraved. Id.
at 1220.
    The U.S. Supreme Court denied Lee’s petition for
certiorari in March 1998.
                             C
    In Lee’s state postconviction proceedings, the Arizona
Supreme Court appointed attorney Jess Lorona to represent
Lee. Lorona investigated Lee’s case in preparation for filing
Lee’s petition for state postconviction relief. Lorona
contacted Lee’s trial counsel, Simpson, and obtained
documents from him. Lorona’s billing records indicate that
Lorona also contacted the attorneys who represented Lee on
direct appeal.
   Lee wrote two letters to Lorona requesting status
updates. Lorona responded on March 8, 2000, and April 13,
2000. In the first letter, Lorona informed Lee that Lorona
had obtained an extension for filing the petition for
postconviction relief and noted that Lorona and his
                       LEE V. THORNELL                      11


investigator had been interviewing witnesses and working
on the case. The second letter reiterated that Lorona and his
investigator had been interviewing witnesses, enclosing a
copy of the filed petition for postconviction relief, which
Lorona had submitted on March 15, 2000.
    Lorona dedicated most of the postconviction petition to
arguing that Arizona’s death penalty scheme was
unconstitutional. Lorona also argued that the trial court had
erred in different respects, such as in not severing the trials
for the Reynolds and Lacey murders. Although Lorona did
also assert five claims of ineffective assistance of trial
counsel, he did not raise the ineffective assistance claim at
issue here, which pertains to Simpson’s alleged failure to
investigate and present mitigating evidence of Fetal Alcohol
Syndrome.
    In response to Lorona’s petition, the State argued that the
non-ineffective assistance of trial counsel claims were
precluded because they were either decided on direct appeal
or could have been raised at that time. As to the ineffective
assistance claims, the State maintained that Lee had “failed
to raise any colorable claims,” so the State “request[ed] that
[Lee] be ordered to file an amended petition within 30 days,
in order to explain how his [ineffective assistance]
allegations . . . are colorable.” Lorona did not amend the
petition or file a reply, despite filing a motion for an
extension of time.
    The state trial court (the same judge who had presided
over Lee’s trials and sentenced him to death) denied Lee’s
petition for postconviction relief. The court agreed with the
State that all the non-ineffective assistance claims were
precluded because they were either raised or could have been
raised on direct appeal. As to the ineffective assistance
12                     LEE V. THORNELL


claims, the court found that none were colorable, on that
basis rejecting the State’s assertion that Lee should have
filed an amended petition. The court explained:

       First, based on the Court’s observations in the
       pretrial stage, at trial, and finally at
       sentencing, Defendant received an excellent
       defense from a very competent and
       experienced attorney. Second, Defendant has
       not and cannot demonstrate prejudice. There
       is no need for an evidentiary hearing as to the
       allegations of ineffective assistance of trial
       counsel because Defendant cannot meet
       either of the two prongs set forth in
       Strickland.

The court noted that Lee’s “counsel provided the Court with
much evidence as to Defendant’s deprived childhood and the
Court considered it and counted it as a mitigating factor. The
Court didn’t have to have counsel ‘draw a line’ to show the
nexus, but that childhood could not overcome the
aggravating factors found by the Court in these homicides.”
    In a second postconviction petition filed in September
2005, Lee argued that the Arizona Supreme Court in Lee I
improperly refused to consider Lee’s mitigating evidence
because it lacked a causal nexus to his crime. The state trial
court rejected this “successive Notice of Post-Conviction
Relief,” finding that Arizona Rule of Criminal Procedure
32.2(a) precluded Lee from pursuing a claim that “should
have been raised on direct appeal or in the first Rule 32
[postconviction] proceedings.” The Arizona Supreme Court
denied review. Lee also submitted a third petition for
postconviction relief in 2009, which was likewise denied.
                       LEE V. THORNELL                     13


                              D
    On November 8, 2001, Lee filed two petitions for § 2254
relief in federal court. The petitions were consolidated. On
March 3, 2003, Lee filed his first amended petition. Two
claims are relevant here.
     Claim 2. Claim 2 focused on the performance of Lee’s
trial counsel, Simpson. It alleged that Simpson “provided
constitutionally ineffective assistance of counsel by failing
to investigate and prepare adequate and appropriate
mitigation for the sentencing phases of [Lee’s] two trials,”
specifically by failing to pursue counsel’s suspicion that Lee
“might have had neurological damage as a result of prenatal
exposure to alcohol.” In February 2005, the district court
dismissed Claim 2, finding it procedurally defaulted because
Lee had failed to raise this argument in state court.
    Proposed Claim 26. In July 2006, Lee sought to add to
his § 2254 petition a proposed Claim 26, in which he
asserted that the Arizona Supreme Court unconstitutionally
required him to establish a causal nexus between his crimes
and his mitigating evidence, in violation of Tennard v.
Dretke, 

 (2004). In November 2006, the district
court denied the motion to amend because “add[ing] this
claim would be futile because it is time barred, procedurally
barred, and without merit.”
    In 2009, Lee appealed the denial of § 2254 relief.
Shortly after appellate briefing was completed, the Supreme
Court decided Martinez v. Ryan, 

 (2012). In
Martinez, the Court held that “[i]nadequate assistance of
counsel at initial-review collateral proceedings may
establish cause for a prisoner’s procedural default of a claim
of ineffective assistance at trial.” 

. This court then
granted Lee’s motion for a limited remand to permit the
14                     LEE V. THORNELL


district court to reconsider its denial of Claim 2 and other
claims in light of Martinez.
    In his remand briefing in the district court, Lee supported
Claim 2 with new evidence, including declarations from
additional experts. These medical professionals discussed
the evidence of Lee’s alleged Fetal Alcohol Syndrome and
Fetal Alcohol Effect—resulting from Lee’s in utero
exposure to alcohol—and the impact on Lee’s brain
development and maturity. Lee also included declarations
from friends and family members about his difficult
childhood.
    The district court again denied all claims, including
Claim 2. The court found that Simpson’s performance was
not deficient, and that even if it was, Lee was not prejudiced,
meaning that Lee had not excused his procedural default.
The court found that any evidence of fetal alcohol-related
brain damage would not have affected Lee’s sentence
because of (1) Lee’s “lead role in the murders and
robberies”; (2) the strength of the aggravating factors; and
(3) the state trial court’s acceptance of other mitigating
circumstances. The district court also denied Lee’s requests
for depositions of Simpson and Lorona and for an
evidentiary hearing because it found the underlying claim to
lack merit. The district court granted a certificate of
appealability on Claim 2. It later admitted additional
materials that Lee proffered into the record.
                              E
    In August 2019, we expanded the certificate of
appealability to include the question of whether the district
court erred in denying leave for Lee to add his Proposed
Claim 26, the causal nexus claim. We also ordered
replacement briefs to be filed. In May 2021, we issued an
                      LEE V. THORNELL                     15


order holding the case in abeyance pending Shinn v.
Ramirez, 

 (2022). After Shinn was decided, the
parties then filed a further round of replacement briefs.
    We review de novo the district court’s denial of Lee’s
§ 2254 petition. Cain v. Chappell, 

 (9th
Cir. 2017). The Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA) applies in this case because Lee’s
federal habeas petition was filed in 2001, after AEDPA’s
effective date. See Lindh v. Murphy, 

(1997).
                             II
     In Claim 2, Lee argues that his trial counsel, Alan
Simpson, was constitutionally ineffective at sentencing
because he failed to investigate and present mitigating
evidence that Lee suffered from Fetal Alcohol Syndrome
and Fetal Alcohol Effect. Lee maintains that his in utero
exposure to alcohol caused organic brain damage, a
substantial mitigating factor.    To establish a Sixth
Amendment claim of ineffective assistance under Strickland
v. Washington, 

 (1984), Lee must show that his
trial counsel was deficient and that this deficient
performance prejudiced Lee. See, e.g., Harrington v.
Richter, 

 (2011).
     Because Lee did not raise this claim in his state
postconviction relief petition, it is procedurally defaulted.
See Shinn, 

 (“A federal habeas court
generally may consider a state prisoner’s federal claim only
if he has first presented that claim to the state court in
accordance with state procedures.”). To enable a federal
court to consider this claim, Lee must “demonstrate ‘cause’
to excuse the procedural defect and ‘actual prejudice.’” 

(citation omitted); see also, e.g., McLaughlin v. Oliver, 95
16                          LEE V. THORNELL


F.4th 1239, 1246 (9th Cir. 2024). However, the evidence
that Lee would bring forward to establish cause and
prejudice, as well as the underlying ineffective assistance of
trial counsel claim, was not developed in the state court
proceedings. The district court also declined to hold an
evidentiary hearing to further develop these facts, to which
Lee assigns further error.
                                    A
     The most immediate difficulty for Lee is 

(e)(2), which places strict limits on when federal
courts can hold evidentiary hearings and consider new
evidence when the habeas petitioner has failed to develop the
factual basis for his claim in state court proceedings.1 In
Martinez v. Ryan, 

 (2012), the Supreme Court held
that “[i]nadequate assistance of counsel at initial-review
collateral proceedings may establish cause for a prisoner’s
procedural default of a claim of ineffective assistance at
trial.” 

. This stands as a “narrow exception” to the
usual rule that “in proceedings for which the Constitution
does not guarantee the assistance of counsel at all, attorney
error cannot provide cause to excuse a default.” Shinn, 596



1
  Under 

(e)(2), “[i]f the applicant has failed to develop
the factual basis of a claim in State court proceedings, the court shall not
hold an evidentiary hearing on the claim unless the applicant shows
that— (A) the claim relies on— (i) a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme Court, that
was previously unavailable; or (ii) a factual predicate that could not have
been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by
clear and convincing evidence that but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the
underlying offense.”
                       LEE V. THORNELL                     17


U.S. at 380 (quoting Davila v. Davis, 

(2017)).
    In Shinn, however, the Supreme Court held that the
special rule of Martinez did not create an exception to
§ 2254(e)(2) to excuse a habeas petitioner’s failure to
develop in state court proceedings evidence of trial counsel’s
ineffectiveness. 

. As Shinn now makes clear,
even when “postconviction counsel negligently failed to
develop the state-court record,” a federal court “shall not
hold an evidentiary hearing” unless one of the two
exceptions in § 2254(e)(2) is met. Id. Under Shinn,
“[b]ecause ‘§ 2254(e)(2) is a statute that the courts have no
authority to amend,’ its strictures must be enforced
according to their terms, with no Martinez-style judge-made
equitable exceptions for only ‘a subset of claims.’”
McLaughlin, 95 F.4th at 1248 (brackets omitted) (quoting
Shinn, 596 U.S. at 385–87). And § 2254(e)(2)’s “restrictions
also apply ‘when a prisoner seeks relief based on new
evidence without an evidentiary hearing.’” Id. (quoting
Shinn, 

).
    Thus, although Lee could try to argue cause and
prejudice under Martinez to excuse the procedural default of
Claim 2, there remains the problem that Lee cannot present
evidence of either counsel’s alleged ineffectiveness that was
not presented in state court unless he can satisfy
§ 2254(e)(2). Presumably because § 2254(e)(2) presents an
independent obstacle to success on his claim, Lee is clear in
his briefing that he is not relying on the Martinez procedural
default exception. He in fact specifically represents that “it
could not be clearer that Lee does not rely on Martinez.” Lee
also does not argue that he meets the § 2254(e)(2)
exceptions.
18                     LEE V. THORNELL


    Instead, Lee offers two novel theories for obtaining a
federal evidentiary hearing notwithstanding § 2254(e)(2). It
appears that Lee raises the same two arguments in support of
his claim that he has established “cause” to excuse his
procedural default. As we now explain, these two theories
are unpersuasive.
                              B
    First, Lee argues that he is entitled to a federal
evidentiary hearing because Lorona, his state postconviction
counsel, abandoned him. Lee theorizes that counsel’s
abandonment severed the principal-agent relationship,
meaning that Lee did not “fail[] to develop the factual basis
of [his] claim in State court proceedings,” within the
meaning of § 2254(e)(2). We understand Lee to also be
invoking Lorona’s alleged abandonment of Lee as “cause”
to excuse Lee’s failure to raise the Fetal Alcohol Syndrome
and Fetal Alcohol Effects argument in state postconviction
proceedings.
     Lee’s abandonment theory lacks merit. Even assuming,
notwithstanding Shinn v. Ramirez, that attorney
abandonment could provide grounds for avoiding the
strictures of § 2254(e)(2), Lee’s argument fails because
Lorona did not abandon Lee. Abandonment occurs when
counsel fails to “operat[e] as [petitioner’s] agent in any
meaningful sense of that word.” Maples v. Thomas, 

 (2012) (first alteration in original) (quoting
Holland v. Florida, 

 (2010) (Alito, J.,
concurring in part and concurring in judgment)).
Abandonment can be evidenced by “counsel’s near-total
failure to communicate with petitioner or to respond to
petitioner’s many inquiries and requests over a period of
several years,” id. at 282 (citation omitted), or by counsel’s
                        LEE V. THORNELL                      19


decision to “withdraw from the case” without notifying the
petitioner or securing suitable replacement counsel, id. at
283. By contrast, an attorney’s “negligent conduct” does not
constitute abandonment. Id. at 281; see also Gibbs v.
Legrand, 

, 885–87 (9th Cir. 2014).
     Lorona did not abandon Lee in the state postconviction
proceedings. When Lee wrote letters to Lorona, Lorona
responded and reported his work on the case. This is a far
cry from a “near-total failure to communicate with
petitioner,” or similarly egregious conduct, that constitutes
abandonment. Maples, 

 (quotation omitted).
Further, Lorona’s billing records—which included more
than 150 entries between June 1999 and July 2000—show
that Lorona conducted regular work on Lee’s case, including
collaborating with an investigator and consulting with Lee’s
trial counsel. The many motions Lorona filed also reflect his
efforts in representing Lee. Ultimately, Lorona filed a
substantial petition for state postconviction relief that raised
nine claims, including several ineffective assistance claims.
These actions are not the equivalent of abandonment.
    Lee nevertheless argues that abandonment can be
detected in Lee’s contemporaneous letters to Lorona, in
which Lee expresses frustration with Lorona’s progress and
asks for status updates. But any dissatisfaction that Lee felt
toward Lorona does not negate the work that Lorona was
doing on the case. Lee also complains that Lorona failed to
meet with Simpson and confer with Lee. But the record
shows that Lorona consulted with Simpson by phone and
communicated with Lee by letter. A failure to conduct in-
person meetings is not tantamount to a “near-total failure to
communicate with petitioner” and does not constitute
abandonment. 

.
20                     LEE V. THORNELL


    Lee further contends that Lorona failed to “perform
reasonably necessary legal work” and failed to plead “a
colorable claim.” Even if true, these allegations suggest at
most that Lorona was “negligent,” not that he failed to
“operat[e] as [Lee’s] agent in any meaningful sense of that
word.” 

 (internal citation and quotation marks
omitted). Lorona’s failure to file an amended petition or
reply brief after obtaining an extension again reflects
negligence at most. See Gibbs, 

 (noting that
in a prior case, an “attorney’s alleged negligence did not rise
to the level of abandonment or egregious misconduct
because he actually represented his client and filed a habeas
petition, albeit an imperfect one.” (citing Towery v. Ryan,

 (9th Cir. 2012) (per curiam))). Lee’s
abandonment theory thus fails to save him from the
requirements of § 2254(e)(2). It also does not establish
“cause” to excuse his procedural default.
    Second, Lee argues that the requirements of § 2254(e)(2)
do not apply because the Arizona Supreme Court did not
follow a “meaningful process” when it appointed Lorona as
Lee’s postconviction counsel. Essentially, Lee argues that
the Arizona Supreme Court’s constitutionally inadequate
appointment process provides both cause for Lee’s
procedural default and grounds for avoiding the
requirements of § 2254(e)(2). This argument also fails.
Once again, even assuming this theory could provide
grounds for avoiding § 2254(e)(2), but see Shinn, 596 U.S.
at 385–86, it is meritless because there is no basis to
conclude that the Arizona Supreme Court followed an
inadequate process in appointing postconviction counsel.
    In claiming a deficient appointment process, Lee points
to the fact that the Arizona Supreme Court’s committee for
appointing postconviction counsel initially recommended
                       LEE V. THORNELL                      21


against the appointment of Lorona, and that a memorandum
from that committee noted, “Too many cases per attorney –
Lorona 5.” According to Lee, this indicates that the Arizona
Supreme Court did not act in “good faith” when it appointed
Lorona.
    This argument fails. The record shows that the Arizona
Supreme Court’s committee engaged in a thoughtful vetting
process for selecting counsel for capital defendants in their
state postconviction proceedings. Over two hundred letters
were sent to attorneys requesting that they apply for
appointment, after which applicants were screened and
interviewed. Though Lorona was not initially selected for
an interview, the committee report noted that judges had
“very positive” experiences with him. In noting that there
were “too many cases per attorney” in the case of Lorona,
the committee’s memorandum just as probably reflects an
acknowledgment that Lorona’s caseload was substantial. It
does not show, as Lee contends, that the court selected an
“utterly unqualified” attorney to represent Lee.
    Section 2254(e)(2) thus applies. Because Lee does not
argue that he can otherwise satisfy the requirements of that
provision, he was not entitled to a federal evidentiary hearing
or to introduce new evidence in federal court, and his claim
must rest on the state court record. See McLaughlin, 95 F.4th
at 1248. And for the reasons we have set forth, Lee’s two
theories also do not provide “cause” to excuse his failure to
raise his ineffective assistance claim in state postconviction
proceedings.
                              C
   Even if Lee could demonstrate cause to excuse the
procedural default—whether based on his postconviction
counsel’s failure to raise his current Sixth Amendment
22                     LEE V. THORNELL


theory in state court, or on any other theory—Lee still cannot
demonstrate prejudice. Lee’s prejudice argument depends
on the new evidence that Lee did not put forward in state
court, and, as we discussed above, § 2254(e)(2) prevents
federal courts from relying upon that new evidence. See
McLaughlin, 95 F.4th at 1248. Lee does not argue that,
absent his new evidence, he can demonstrate ineffective
assistance of trial counsel for failure to investigate and
present fetal-alcohol evidence at sentencing. His ineffective
assistance claim necessarily fails, and he cannot show
prejudice to excuse his procedural default.
    But even considering Lee’s new theory and evidence,
Lee still cannot show prejudice. See Martinez, 

. To show prejudice even under Martinez, a petitioner
must “demonstrate that the underlying ineffective-
assistance-of-trial-counsel claim is a substantial one, which
is to say that the prisoner must demonstrate that the claim
has some merit.” 

; see also Dickinson v. Shinn, 

 (9th Cir. 2021). Lee cannot demonstrate
prejudice from the procedural default because his underlying
Strickland claim lacks merit. That is, because Lee can show
neither that his trial counsel performed deficiently nor that
this alleged deficient performance prejudiced him, see
Richter, 

, Lee cannot demonstrate prejudice
from his postconviction counsel’s failure to raise the fetal
alcohol ineffective assistance theory in state postconviction
proceedings.
                              1
   First, Lee cannot show deficient performance by his trial
counsel.    Under Strickland’s performance prong, “[a]
convicted defendant making a claim of ineffective assistance
must identify the acts or omissions of counsel that are
                       LEE V. THORNELL                     23


alleged not to have been the result of reasonable professional
judgment.” Strickland, 

. We “then
determine whether, in light of all the circumstances, the
identified acts or omissions were outside the wide range of
professionally competent assistance.” 

 In performing
this analysis, the question is whether “counsel’s
representation fell below an objective standard of
reasonableness.”        Richter, 

(quoting Strickland, 

). “Representation is
constitutionally ineffective only if it ‘so undermined the
proper functioning of the adversarial process’ that the
defendant was denied a fair trial.” Id at 110
(quoting Strickland, 

).
    In the capital sentencing context, “‘counsel has a duty to
make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary’
during the penalty phase of a trial.” Bolin v. Davis, 

 (9th Cir. 2021) (emphasis in original) (quoting
Carter v. Davis, 

 (9th Cir. 2019) (per
curiam)). But when assessing counsel’s performance, we
“indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional
assistance.” Strickland, 

; see also Cullen v.
Pinholster, 

 (2011).
    In this case, Simpson’s performance in the penalty
phases was within the “wide range of professionally
competent assistance.” Strickland, 

. At
sentencing, Simpson put forward wide-ranging mitigating
evidence on Lee’s behalf, including about Lee’s age,
deprived childhood, mental capacity and personality traits,
remorse, lack of prior criminal record, and strong support
from Lee’s family and friends. Among other things,
Simpson put on evidence showing how Lee was “ping-
24                     LEE V. THORNELL


pong[ed]” between homes as a young child and received no
familial affection, with his parents often leaving Lee with
another family and then not contacting him. Simpson also
emphasized Lee’s diminished mental capacity and
psychological orientation, which placed him in the 99th
percentile of “the compliance scale” and showed that he was
a “follower, not a leader.” Simpson put on evidence that
these mitigating factors were the only explanation for Lee’s
otherwise inexplicable crimes, especially when Lee had no
criminal record apart from stealing a bicycle at the age of
fifteen.
    Although Simpson did not introduce evidence of fetal
brain damage from alcohol exposure, Simpson did put
forward evidence of how Lee’s mother abused alcohol,
including before Lee was born. Simpson’s investigator
testified that Lee’s “mother abused alcohol for a number of
years, including, prior to his birth.” Specifically, “[d]uring
the period of before he was born,” Lee’s mother would be
furnished with “a case of beer every other day, and then that
was augmented” to a “case of beer every other day with two
12-packs in between.”
    Simpson’s efforts in representing Lee did not go
unnoticed. The same state trial judge who presided over
Lee’s trials commented when denying Lee’s state
postconviction petition that Lee “received an excellent
defense from a very competent and experienced attorney.”
The trial judge reached this conclusion based on his own
“observations in the pretrial stage, at trial, and finally at
sentencing.” These comments from a judge who observed
Lee’s counsel’s performance firsthand support the
conclusion that counsel did not act deficiently. See Schriro
v. Landrigan, 

 (2007) (“[T]he judge
presiding on postconviction review was ideally situated to
                       LEE V. THORNELL                      25


make this assessment because she is the same judge who
sentenced Landrigan . . .”); Mann v. Ryan, 

,
1157–58 (9th Cir. 2016) (en banc) (similar). In short, based
on the record before the state court, there would be no basis
to conclude that Simpson’s presentation of mitigating
evidence fell below Sixth Amendment standards.
    Notwithstanding this, Lee argues that Simpson was
constitutionally ineffective for failing to present evidence of
neurological damage caused by in utero exposure to alcohol.
But even if we considered Lee’s proffered evidence, Lee
cannot overcome the “strong presumption that counsel’s
conduct falls within the wide range of reasonable
professional assistance.” Strickland, 

.
    Lee principally argues that Simpson performed
deficiently by relying upon psychologist Dr. Mickey
McMahon as his expert. Lee contends that Simpson should
have also retained an expert specially qualified in evaluating
persons who had been exposed to alcohol in utero. In a
declaration submitted to the district court, Simpson claimed
that “[e]arly in the investigation of [Lee’s] case, I began to
suspect that he might have been exposed to alcohol in utero
and that he had sustained neurological damage as a result of
that exposure.” But when Simpson raised this possibility
with Dr. McMahon, Dr. McMahon responded that the theory
lacked merit because Lee “did not display the ‘facial
characteristics’ of a child with fetal alcohol syndrome.” Dr.
McMahon “therefore dismissed the possibility that [Lee]
suffered any neurological impairment as a result of in utero
alcohol exposure.” Simpson claims that he “[t]rust[ed] Dr.
McMahon’s assessment of the fetal alcohol exposure issue”
and did not retain an additional expert to look into the issue
further.
26                     LEE V. THORNELL


    Simpson’s reliance on Dr. McMahon did not amount to
constitutionally ineffective assistance of counsel.
“Counsel’s failure to consult” with additional experts is “not
unreasonable” when “counsel did retain medical experts
whom he thought well-qualified.” Babbitt v. Calderon, 

 (9th Cir. 1998). In Babbitt, for example,
we rejected the argument that defense counsel should have
retained experts with particular expertise in post-traumatic
stress disorder. 

 Instead, it was sufficient that counsel
had retained qualified experts who “did not state that they
required the services of . . . additional experts.” 

 As we
have explained, “[i]t is certainly within the ‘wide range of
professionally competent assistance’ for an attorney to rely
on properly selected experts.” Harris v. Vasquez, 

 (9th Cir. 1990) (quoting Strickland, 

); see also Stokley v. Ryan, 

 (9th Cir.
2011) (“[N]either of the experts counsel hired unequivocally
stated that Stokley should be examined by a
neuropsychologist—and counsel was under no obligation to
seek neuropsychological testing in the absence of any such
recommendation.”).
    In this case, Simpson reasonably selected Dr. McMahon
as an expert. As noted in a contemporaneous letter Simpson
wrote to Lee’s probation officer, Simpson believed that “Dr.
McMahon has had a strong background in corrections, both
adult and juvenile.”       Dr. McMahon’s resume lists
qualifications that would have enabled him to evaluate Lee
for psychological impairments. Dr. McMahon held a
doctorate in clinical psychology and had been a certified
psychologist for nearly two decades by the time of Lee’s
1993 trial. Since 1975, he had been a consultant to various
government entities, including the Maricopa County
Criminal Court Division, the Juvenile Court, and the Arizona
                       LEE V. THORNELL                     27


Department of Corrections in matters including the
“[p]sychological evaluations and treatment of . . . [c]hildren
and parents in cases of: child abuse, incorrigibility,
delinquency, neglect, etc.”     Dr. McMahon also had
experience examining patients “[f]or loss of specific
neuropsychological abilities associated with organic brain
damage,”      “[o]rganic    [m]ental    [d]isorder,”       and
“alcohol/substance abuse disorders.” In addition, Dr.
McMahon had served as an expert in past criminal cases,
including evaluating mitigating circumstances, with
“[p]articular attention paid to the role of alcohol and
substance abuse in the committing offense.”
    Given Dr. McMahon’s qualifications and experience,
Simpson was not ineffective in relying on Dr. McMahon.
Although Simpson in a later declaration faulted himself for
relying on Dr. McMahon, that declaration, expressed
through “the distorting lens of hindsight,” does not reflect
“what was known and reasonable at the time the attorney
made his choices.” Hendricks v. Calderon, 

 (9th Cir. 1995) (citation omitted). The declaration does
not show that Simpson “questioned or should have
questioned the competence” of Dr. McMahon at the time of
his investigation into Lee’s mitigating circumstances.
Harris, 

.
    Because it was reasonable for Simpson to retain Dr.
McMahon, it was also reasonable for Simpson to not seek
further expert assistance based on Dr. McMahon’s
disavowal of the theory that Lee might have developed
neurological impairments from fetal alcohol exposure.
When a retained expert “did not state that [he] required the
services of . . . additional experts,” there is “no need for
counsel to seek them out independently.” Babbitt, 

; see also Payton v. Cullen, 

 (9th
28                     LEE V. THORNELL


Cir. 2011) (“Having retained qualified experts, it was not
objectively unreasonable for [the attorney] not to seek
others.”). Counsel has a duty to provide the retained expert
with “pertinent information about the defendant,” Caro v.
Woodford, 

 (9th Cir. 2002), and to
investigate issues for which the expert has specifically
“recommended further inquiry,” Bemore v. Chappell, 

 (9th Cir. 2015). But here, Simpson
provided Dr. McMahon with his suspicions about Lee’s fetal
alcohol exposure, and McMahon did not recommend further
inquiry or retaining another expert. Simpson thus had no
further constitutional duty to retain a different expert.
     This conclusion is not undermined by Lee’s argument
that Fetal Alcohol Syndrome and Fetal Alcohol Effects were
well-known in 1994 and that Dr. McMahon should have
diagnosed it then.        As one of Lee’s new experts
acknowledges, the Diagnostic and Statistical Manual of
Mental Disorders (DSM) available at the time of the 1994
trial and sentencing did not contain a specific diagnostic
code for a neurodevelopmental disorder associated with
prenatal alcohol exposure, which exists only in “current
diagnostic terminology.” Another of Lee’s new experts
further recognizes that “[t]he majority of individuals [with
Fetal Alcohol Syndrome and Fetal Alcohol Effect],
particularly those born before 1973, went undiagnosed, and
to this day the greatest majority of individuals continue to go
undiagnosed.”
    It is thus doubtful that Dr. McMahon was incompetent
for failing to diagnose Lee in 1994. But even if he were, it
would not change our bottom-line conclusion about Lee’s
Sixth Amendment theory. “An expert’s failure to diagnose
a mental condition does not constitute ineffective assistance
of counsel, and [a petitioner] has no constitutional guarantee
                      LEE V. THORNELL                     29


of effective assistance of experts.” Earp v. Cullen, 

 (9th Cir. 2010). Thus, “[e]ven if the mental
health professional[] who evaluated [Lee] at the time of his
trial incorrectly concluded that [Lee] did not have organic
brain damage, [Lee’s] claim fails.” 

 Dr. McMahon’s
alleged misdiagnosis does not demonstrate ineffective
assistance of counsel.
    Finally, Lee claims that Simpson was deficient because
he failed to abide by the standards set forth in the 2003
revised edition of the American Bar Association (ABA)
Guidelines for the Appointment and Performance of Defense
Counsel in Death Penalty Cases, reprinted at 31 HOFSTRA
L. REV. 913 (2003). Lee relies on the commentary to
Guideline 10.11, which explains that expert testimony
concerning “the permanent neurological damage caused by
fetal alcohol syndrome” could “lessen the defendant’s moral
culpability for the offense or otherwise support[] a sentence
less than death.” 

 at 1060–61.
    Once again, Lee fails to demonstrate Simpson’s deficient
performance. A violation of the ABA Guidelines does not
necessarily equate to a constitutional violation. See Bobby
v. Van Hook, 

 (2009) (per curiam) (explaining
that the ABA standards “can be useful as ‘guides’ to what
reasonableness entails, but only to the extent they describe
the professional norms prevailing when the representation
took place”); Sansing v. Ryan, 

 (9th Cir.
2022); McGill v. Shinn, 

 (9th Cir. 2021).
Here, the 2003 ABA Guidelines on which Lee relies had not
been promulgated at the time of Lee’s sentencing, and the
then-prevailing 1989 ABA Guidelines did not yet contain the
guidance in question. See ABA Guidelines for the
Appointment and Performance of Counsel in Death Penalty
Cases (1989). Regardless, Simpson did put on mitigating
30                    LEE V. THORNELL


evidence of Lee’s mental and psychological deficiencies,
and he raised the fetal alcohol issue with Dr. McMahon. We
cannot conclude that Simpson failed to abide by prevailing
professional standards given his efforts to develop and
present mitigating evidence.
                             2
    Even assuming Simpson performed deficiently, Lee still
could not show prejudice from the procedural default
because any ineffective assistance of counsel did not
prejudice Lee. “In the capital sentencing context, the
prejudice inquiry asks ‘whether there is a reasonable
probability that, absent the errors, the sentencer—including
an appellate court, to the extent it independently reweighs
the evidence—would have concluded that the balance of
aggravating and mitigating circumstances did not warrant
death.’” Shinn v. Kayer, 

, 117–18 (2020) (per
curiam) (quoting Strickland, 

). The standard
is “highly demanding,” 

 at 118 (quoting Kimmelman v.
Morrison, 

 (1986)), and “requires an
evaluation of the strength of all the evidence and a
comparison of the weight of aggravating and mitigating
factors.” Thornell v. Jones, 

, at *10 (U.S.
May 30, 2024). The “reasonable probability” standard
further requires a “‘substantial,’ not just ‘conceivable,’
likelihood of a different result.” Shinn, 

(quoting Pinholster, 

). In this case, even if
Simpson had presented the fetal alcohol brain damage theory
that Lee now proffers, there would not be a “substantial”
likelihood that Lee would have evaded a death sentence. 

    To start, it is speculative whether Lee’s new evidence
would have materially added to the overall case in
mitigation. Lee argues that new evidence of alleged organic
                        LEE V. THORNELL                       31


brain damage would have cast him in a more sympathetic
light. But as we have discussed above, trial counsel had
already endeavored to show why, based on mitigating
factors, Lee was undeserving of the death penalty. These
mitigating factors included Lee’s difficult and deprived
childhood, age, lack of prior criminal history, difficulties in
school, learning disability, mental limitations, and passive
and suggestible personality. The sentencing hearing also
included evidence that Lee’s mother had abused alcohol
before Lee was born.
     The trial court acknowledged Lee’s mitigating evidence,
noting, for example, that Lee had a “dysfunctional” and
“deprived childhood” in which he “was almost treated as
chattel for his father,” with parents who “seemingly never
showed any affection toward the defendant” and “provided
virtually no care.” But referencing other mitigating
circumstances that it did not find Lee had proven, the state
trial court still noted that “even if this court were to consider
every one of the factors proposed by the defendant as a
mitigating circumstance,” they would not be “sufficiently
substantial to call for leniency” given the aggravating
features of Lee’s crimes. Under these circumstances, we are
hard-pressed to conclude there is a substantial likelihood that
evidence of fetal-alcohol issues would have resulted in a
different sentence. See Floyd v. Filson, 

,
1139–40 (9th Cir. 2020) (holding that testimony on fetal
alcohol syndrome would not have changed the balance of
mitigating and aggravating factors); cf. Bemore, 788 F.3d at
1159–60, 1174–76 (recognizing that evidence of “organic
brain damage” created a reasonable probability of a different
sentence when trial counsel presented no mental health
mitigation evidence to the sentencing jury and instead
32                     LEE V. THORNELL


presented other theories that damaged the defendant’s
credibility).
    Lee argues that evidence of Fetal Alcohol Syndrome and
Fetal Alcohol Effect would have specifically helped to
explain his poor judgment and suggestibility. But at
sentencing, Simpson had already put on evidence to build on
those themes. Among other things, and in addition to Lee’s
age, Simpson introduced evidence through Dr. McMahon
that Lee was in the 99th percentile of the “compliance scale”
and the 96th percentile of the “suggestibility scale,” that he
was “a virtual door mat” in his extreme tendency to be a
follower, and that he had “a diminished capacity to
appreciate the consequences of his actions.” Lee’s new
experts argue that his fetal alcohol brain damage provided an
explanation for his developmental immaturity, but trial
counsel had already worked to develop that impression of
Lee. In light of this evidence, there is no reasonable
probability that a different sentence would have resulted if
Simpson had put on evidence of organic brain damage.
Shinn, 592 U.S. at 117–18; see also Floyd, 949 F.3d at 1138–
40.
    In any event, even if this new evidence might have
changed the complexion of the mitigation story to some
extent, there is no reasonable probability that it would have
overcome the extreme aggravating circumstance of Lee’s
offenses, especially considering the role he played in the
murders. In evaluating prejudice, Lee “must show a
reasonable probability” that a capital sentence would have
been rejected after the sentencer “weighed the entire body of
mitigating evidence . . . against the entire body of
aggravating evidence.” Wong v. Belmontes, 

(2009) (per curiam); see also Pinholster, 

(finding no prejudice when “[t]he State presented extensive
                      LEE V. THORNELL                    33


aggravating evidence”). And “where the aggravating factors
greatly outweigh the mitigating evidence, there may be no
‘reasonable probability’ of a different result,” even if the
petitioner presents “substantial evidence of the kind that a
reasonable sentencer might deem relevant to the defendant’s
moral culpability.” Jones, 

, at *7
(quotations omitted).
     In this case, Lee’s crimes involved numerous
aggravating factors. Notwithstanding Lee’s age and claimed
follower personality, Lee played a lead role in three
senseless murders of complete strangers in a matter of three
weeks. See Belmontes, 

 (explaining that “the
cold, calculated nature of the . . . murder” served as a
“counterpoint” to new evidence of defendant’s “impairment
of the neurophysiological mechanisms for planning and
reasoning”); 

 (noting that evidence that defendant
had committed another murder was “the most powerful
imaginable aggravating evidence”); see also Jones, 

, at *9 (noting that the Arizona Supreme Court
has apparently never “vacated the judgment of death in a
case involving multiple murders—let alone a case involving
all of the aggravating circumstances present here”).
    And the murders involved other aggravating
circumstances beyond their number. All three of the
murders Lee committed involved pecuniary gain. The
Reynolds and Drury murders involved phone calls that
effectively lured the victims into the harrowing situations
that would lead to their deaths. In the cases of Lacey and
Drury, Lee fired numerous shots at each victim, plainly
shooting to kill. And the murder of Linda Reynolds stands
out for its unique depravity. Lee and Hunt kidnapped and
sexually assaulted Reynolds, forced her to withdraw the last
twenty dollars from her bank account, and then debated in
34                     LEE V. THORNELL


Reynold’s presence whether to kill her. Then Lee shot
Reynolds and stabbed her to finish the job, with the two men
leaving Reynolds to die in the desert. As the trial court
observed in the case of Reynolds, “[t]he amount of time
which elapsed throughout the [w]hole ordeal, and the
injuries and indignities suffered, amount to the height of
cruelty.”
    Balancing the mitigating evidence against the horrific
nature of Lee’s crimes, in which he played a central role, Lee
cannot establish prejudice from his trial counsel’s failure to
present evidence of alleged organic brain damage from fetal
alcohol exposure. Lee thus cannot demonstrate prejudice
from the procedural default of not raising this issue in state
postconviction proceedings.
                             III
    We next turn to Lee’s proposed claim (Proposed Claim
26) that the Arizona Supreme Court erred on direct appeal
by refusing to consider mitigating evidence that lacked a
causal nexus to his crimes. Lee challenges the following
portion of the Arizona Supreme Court’s opinion in Lee I:

       This court finds that the trial court properly
       rejected defendant’s claim that he was merely
       a follower when he was armed with his own
       weapons in both murders, initiated both
       robberies by making the phone calls, pulled
       the trigger in both murders, and stabbed
       Reynolds. Further, defendant has failed to
       establish a nexus between his deprived
       childhood and his crimes. Upon independent
       review of all mitigation evidence offered by
       defendant, this court finds no mitigating
                        LEE V. THORNELL                      35


       circumstances beyond those found by the
       trial court.

944 P.2d at 1221 (emphasis added). Lee interprets this
passage as applying a causal nexus test, in which the court
did not consider his deprived childhood and other mitigating
circumstances because it required that he demonstrate a
nexus between that evidence and the murders, in violation of
Tennard v. Dretke, 

 (2004).
    The district court denied Lee leave to add this claim to
his § 2254 petition, finding that amendment would be futile
because the claim was untimely, procedurally defaulted, and
lacking merit. We agree on each point.
                               A
     The district court correctly denied leave to add Proposed
Claim 26 because it was not timely presented for review.
AEDPA imposes a one-year statute of limitations on habeas
claims by state prisoners. See 

(d)(1).
Although Lee’s original § 2254 petition was timely, he did
not seek leave to add his causal nexus claim until years later.
Lee argues, however, that under Federal Rule of Civil
Procedure 15(c)(1)(B), Proposed Claim 26 was timely
because it relates back to Claim 19 of his earlier petition, and
is a “mere amplification” of that claim.
    An amended pleading “relates back to the date of the
original pleading when . . . the amendment asserts a claim or
defense that arose out of the conduct, transaction, or
occurrence set out—or attempted to be set out—in the
original pleading.” Fed. R. Civ. P. 15(c)(1)(B). Specifically,
a claim relates back if the original and amended claims are
“tied to a common core of operative facts.” Mayle v. Felix,

 (2005). Conversely, a claim does not
36                      LEE V. THORNELL


relate back if it is “supported by facts that differ in both time
and type from those the original pleading set forth.” 

.
    The district court correctly rejected Lee’s argument that
Proposed Claim 26 shared a common core of operative facts
with his Claim 19. Claim 19 argued that “Arizona’s
statutory scheme for imposing the death penalty is
unconstitutional because it does not sufficiently channel the
sentencer’s discretion.” The factual basis of Claim 19 rests
on an asserted overbreadth of Arizona’s capital sentencing
scheme, i.e., that it does not sufficiently narrow the class of
individuals who could be subject to the death penalty.
Proposed Claim 26, by contrast, rests on the Arizona
Supreme Court’s evaluation of mitigation evidence in Lee’s
particular case.
    Lee argues that Proposed Claim 26 should nonetheless
relate back because, based on several indirect links, it is
ultimately connected to Claim 19. Lee notes that Claim 19
cites Woodson v. North Carolina, 

 (1976), and
that Woodson in turn was cited in Lockett v. Ohio, 

 (1978). Lee goes on to explain that we have cited
Lockett and Eddings v. Oklahoma, 

 (1982), in
describing the Arizona Supreme Court’s past
unconstitutional applications of a causal nexus test. To
provide the final link, Lee maintains that Tennard relied on
the Lockett-Eddings line of cases in rejecting a Fifth Circuit
nexus test analogous to Arizona’s.
    Lee’s attempt to connect Proposed Claim 26 to Claim 19
does not satisfy Rule 15. The connection between cases that
Lee advances is too generic to satisfy the “relating back”
standard because the two claims at issue do not rest on a
common core of operative facts. Mayle, 

.
                       LEE V. THORNELL                      37


The district court thus did not err in denying Lee leave to add
Proposed Claim 26 because it would be untimely under
§ 2244(d)(1).
                              B
    Even if it were timely, Proposed Claim 26 is also
procedurally defaulted. A state procedural bar will foreclose
federal court review of a claim in a § 2254 petition “if the
decision of [the state] court rests on a state law ground that
is independent of the federal question and adequate to
support the judgment.” Lee v. Kemna, 

(2002) (emphasis and brackets in original) (quoting
Coleman v. Thompson, 

 (1991)). Here,
Lee attempted to raise the causal nexus claim in his second
postconviction petition in state court. The state trial court
rejected this petition as improperly successive, holding that
Arizona Rule of Criminal Procedure 32.2(a) precluded Lee
from pursuing a claim that “should have been raised on
direct appeal or in the first Rule 32 proceedings.” The
Arizona Supreme Court then denied review.                 The
independent and adequate state law grounds for dismissal
provide another reason why Lee’s Proposed Claim 26 is
futile. See Kemna, 

.
    Lee does not challenge the independence of Arizona’s
procedural bar. Instead, he disputes whether the bar is
“firmly established and regularly followed” by the Arizona
courts, a requirement for a claim to be procedurally defaulted
under a state procedural rule. 

 at 376 (quoting James v.
Kentucky, 

 (1984)); see also Murray v.
Schriro, 

 (9th Cir. 2014). Lee’s argument
lacks merit.
   Once the State carries the initial burden of showing an
applicable state procedural bar, the burden shifts to the
38                     LEE V. THORNELL


petitioner to raise “specific factual allegations that
demonstrate the inadequacy of the state procedure, including
citation to authority demonstrating inconsistent application
of the rule.” Williams v. Filson, 

 (9th Cir.
2018) (citation omitted). If the petitioner makes this
showing, the burden then shifts back to the State to
demonstrate that the rule has been consistently and regularly
applied. 

 In this case, Lee has not cited “authority
demonstrating inconsistent application” of the procedural
bar. 

    Lee points to Spreitz v. Ryan, 

 (9th Cir.
2019), a case in which we ruled that the petitioner’s causal
nexus claim was not procedurally defaulted. But Spreitz is
inapposite because the petitioner there raised a causal nexus
claim in his first state postconviction proceeding. 

(“The first opportunity [petitioner] had to raise that claim
was before the PCR court, at which time he did so.”). Spreitz
supports the proposition that a claim is not procedurally
defaulted if the petitioner brought the claim at the earliest
opportunity in his postconviction proceedings. Here, Lee
failed to raise his claim in the first Rule 32 proceedings, so
he cannot rely on Spreitz to avoid procedural default.
    Next, Lee points to (Ernesto) Martinez v. Ryan, 

 (9th Cir. 2019), and Djerf v. Ryan, 

 (9th Cir. 2019), two cases in which we considered causal
nexus claims on the merits without addressing the issue of
procedural default. But the fact that no issue of procedural
default was raised or addressed in these cases does not
demonstrate that Arizona has not regularly applied the
procedural rule at issue here. Lee has identified no Arizona
authority supporting that theory. And to the extent Lee
argues that the procedural default here is different because
the error of which he complains occurred on direct appeal
                       LEE V. THORNELL                     39


before the Arizona Supreme Court, he cites no authority
indicating that Arizona courts have not required such a claim
to be brought in an initial state postconviction petition.
   Alternatively, Lee argues that, if Proposed Claim 26 is
procedurally defaulted, he can show cause and prejudice to
excuse the default for all the reasons he gave for Claim 2.
As explained above, however, those theories lack merit.
                              C
    Finally, even if Proposed Claim 26 was timely and not
procedurally defaulted, the claim fails on the merits.
Contrary to Lee, the Arizona Supreme Court did not refuse
to consider mitigating evidence because it lacked a causal
nexus to Lee’s crimes. The court instead gave less weight to
Lee’s mitigating evidence than Lee would have wanted,
which the court was permitted to do. And even assuming the
Arizona Supreme Court did apply an unconstitutional causal
nexus test, Lee’s claim would still fail because any error was
harmless.
                              1
    The Arizona Supreme Court did not apply an
unconstitutional causal nexus test. For a death sentence to
meet the requirements of the Eighth and Fourteenth
Amendments, the sentencer must not “refuse to consider, as
a matter of law, any relevant mitigating evidence.” Eddings,

 (emphasis in original). But sentencers may
“determine the weight to be given relevant mitigating
evidence,” so long as they do not “exclud[e] such evidence
from their consideration.” 

 at 114–15; see also Jones,

, at *6 (“Eddings held that a sentencer
may not ‘refuse to consider . . . any relevant mitigating
evidence.’ It did not hold that a sentencer cannot find
40                     LEE V. THORNELL


mitigating evidence unpersuasive.”) (quoting Eddings, 

); Harris v. Alabama, 

 (1995)
(“[T]he Constitution does not require a State to ascribe any
specific weight to particular factors, either in aggravation or
mitigation, to be considered by the sentencer.”); Ortiz v.
Stewart, 

 (9th Cir. 1998) (“While it is true
that a sentencer may not ‘refuse to consider, as a matter of
law, any relevant mitigating evidence,’ a sentencer is free to
assess how much weight to assign to such evidence.”
(citations omitted)), abrogated on other grounds by
Martinez, 

. The question is thus whether the
Arizona Supreme Court refused to consider Lee’s mitigating
evidence because there was no causal nexus, or instead
found that it did not outweigh the aggravating circumstances
here.
    Lee construes the Arizona Supreme Court’s opinion as
excluding the consideration of mitigating evidence
altogether when it stated that “defendant has failed to
establish a nexus between his deprived childhood and his
crimes.” Lee I, 944 P.2d at 1221. Lee also points out that
the Arizona courts have, in the past, run afoul of the
constitutional principle from Eddings at times. As we
explained in McKinney v. Ryan, 

 (9th Cir.
2015) (en banc), “the Arizona Supreme Court routinely
articulated and insisted on its unconstitutional causal nexus
test” for about “fifteen years” spanning roughly the mid-
1980s to 2000. The Arizona Supreme Court decided Lee I
in this timeframe. Lee argues that, “consistent with” this
history, here “the Arizona Supreme Court . . . necessarily
screened that evidence and discounted it as having no value
as mitigation because it bore no causal connection to the
murder.”
                      LEE V. THORNELL                    41


     As we have explained, however, McKinney “resolved
only the ‘precise question’ whether the state court had
applied the causal-nexus test in that specific case.”
Greenway v. Ryan, 

, 1095–96 (9th Cir. 2017)
(per curiam) (quoting McKinney, 

).
McKinney did not hold “that Arizona had always applied”
this unconstitutional test. Id. at 1095. We “therefore must
examine the state court decisions in [Lee’s] case to
determine whether they took into account all mitigating
factors.” Id. at 1096. This inquiry includes looking to the
trial judge’s ruling to the extent it was “adopted or
substantially incorporated” by the higher court. McKinney,

.
     Here, the state courts’ rulings indicated their
consideration of all mitigating factors. For example, in Lee
I, the Arizona Supreme Court explained:

       For each of the murders, we find that
       (1) defendant has proved by a preponderance
       of the evidence the mitigating circumstances
       of defendant’s age, lack of significant prior
       criminal history, deprived childhood,
       cooperation with law enforcement officials
       and assistance in recovery of weapons, and
       remorse;       and     (2) the      mitigating
       circumstances are not sufficiently substantial,
       taken either separately or cumulatively, to
       call for leniency.

944 P.2d at 1221. Though the court noted that “defendant
has failed to establish a nexus between his deprived
childhood and his crimes,” the Arizona Supreme Court did
42                     LEE V. THORNELL


not state that it was not considering such evidence altogether.
Id.
     The Arizona high court’s reference to “nexus” was not
an invocation of the unconstitutional test. The court instead
stated that a trial court “must consider all evidence offered
in mitigation.” Id. at 1220. It further explained that trial
courts “should consider each mitigating circumstance
individually and all mitigating circumstances cumulatively
when weighing the mitigating and aggravating factors.” Id.
at 1221 (citation and emphases omitted). The Arizona
Supreme Court also stated that it “f[ound] no mitigating
circumstances beyond those found by the trial court,” and
the reference to the mitigating circumstances found by the
trial court included the evidence of Lee’s deprived
childhood. Id. The trial court had earlier explained that it
considered “the defendant’s deprived childhood” to be a
mitigating circumstance that was “proved by a
preponderance of the evidence.” Thus, both the state trial
court and high court considered Lee’s deprived childhood as
a mitigating factor. The Arizona high court simply rejected
Lee’s request to “give greater weight to his deprived
childhood.” Id. (emphasis added).
   Further, this case is distinguishable from McKinney. In
McKinney, we found that the Arizona Supreme Court had
applied an unconstitutional causal nexus test based on a
confluence of three facts:

       (1) the factual conclusion by the sentencing
       judge, which the Arizona Supreme Court
       accepted, that McKinney’s PTSD did not “in
       any way affect[ ] his conduct in this case,” (2)
       the Arizona Supreme Court’s additional
       factual conclusion that, if anything,
                        LEE V. THORNELL                      43


       McKinney’s PTSD would have influenced
       him not to commit the crimes, and (3) the
       Arizona Supreme Court’s recital of the causal
       nexus test for nonstatutory mitigation and its
       pin citation to the precise page in [State v.
       Ross, 

 (Ariz. 1994)], where it
       had previously articulated that test.

 (first alteration in original). From these
facts, we “conclude[d] that the Arizona Supreme Court held,
as a matter of law, that McKinney’s PTSD was not a
nonstatutory mitigating factor, and that it therefore gave it
no weight.” 

    None of those circumstances exists here. The sentencing
judge never concluded that Lee’s deprived childhood did not
“in any way affect[ ] his conduct in this case.” 

 (alteration
in original). Nor did the Arizona Supreme Court state that
Lee’s deprived childhood would have made his crime less
likely. And the Arizona Supreme Court did not recite the
causal nexus test from Ross or give a pin citation to its
previous articulation of the test in Ross.
    Lee argues that the Arizona Supreme Court in this case
cited approvingly State v. Stokley, 

 (Ariz.
1995), a case that applied a causal nexus test. True, Stokley
applied a causal nexus test, and the Arizona Supreme Court
cited Stokley in both its opinions in Lee’s appeals. See Lee
I, 944 P.2d at 1218, 1221; Lee II, 944 P.2d at 1230, 1232.
But in both opinions, the Arizona Supreme Court cited
Stokley only for the uncontested propositions that it needed
to “independently weigh[] the aggravating and mitigating
circumstances related to each death sentence imposed on the
defendant,” Lee I, 944 P.2d at 1221, Lee II, 944 P.2d at
44                     LEE V. THORNELL


1231–32, and that “trial judges are presumed to know the
law,” id. at 1230 (citation and quotation marks omitted).
                              2
    Finally, even if the Arizona Supreme Court applied an
unconstitutional causal nexus test, Lee cannot show
prejudice. In evaluating whether a causal nexus error was
prejudicial, we consider whether it had a “substantial and
injurious effect or influence in determining the [sentencer’s]
verdict.” McKinney, 

 (quoting Brecht v.
Abrahamson, 

 (1993)). To do so, we
“review aggravating factors proven by the State and other
mitigating evidence presented to the sentencing court,” and
then “ask whether consideration of the improperly ignored
evidence ‘would have had a substantial impact on a capital
sentencer who was permitted to evaluate and give
appropriate weight to it.’” Djerf, 

 (quoting
McKinney, 

).
    When there is “overwhelming evidence supporting the
aggravating factors,” a causal nexus error will not create
prejudice if “whatever weight” would have been afforded to
the proffered mitigation evidence “would not be sufficient to
call for leniency.” Apelt v. Ryan, 

 (9th Cir.
2017); see also Greenway, 

 (“[E]ven if we
were to determine that the state court did apply the causal-
nexus test in violation of Eddings, there could have been no
prejudice because the aggravating factors overwhelmingly
outweighed all the evidence that Greenway asserted as
mitigating.”); Djerf, 931 F.3d at 885–86 (finding a causal
nexus error harmless where “the undisputed facts
substantiating the ‘heinous, cruel, or depraved’ finding
[were] especially powerful”).
                       LEE V. THORNELL                      45


    As we have discussed above, Lee’s crimes involved
significant aggravating factors. His difficult childhood and
other mitigating circumstances would not have created a
“substantial impact” on the sentencer’s judgment. Id. at 885;
see also Stokley v. Ryan, 

 (9th Cir. 2012)
(“In light of the Arizona courts’ consistent conclusion that
leniency was inappropriate, there is no reasonable likelihood
that, but for a failure to fully consider Stokley’s family
history or his good behavior in jail during pre-trial
incarceration, the Arizona courts would have come to a
different conclusion.”). As the trial court observed at
sentencing in Lee I,

       [E]ven if this Court were to consider every
       one of the factors proposed by defendant as a
       mitigating circumstance, when balanced
       against the aggravating factors of the cruelty,
       heinousness and depravity of Linda Reynolds
       murder, and the depravity of David Lacey’s
       murder, together with the factor that Lacey’s
       murder came just nine days after Mrs.
       Reynolds[’s] murder, those mitigating
       circumstances would not be sufficiently
       substantial to call for leniency.

The trial court in Lee II made similar comments when
considering the murder of Harold Drury. Given the
aggravating circumstances, any application of a causal nexus
test by the Arizona Supreme Court would have been
harmless.
   In sum, based on untimeliness, procedural default, and
overall lack of merit, we affirm the district court’s denial of
46                    LEE V. THORNELL


Lee’s request for leave to amend his § 2254 petition to add
Proposed Claim 26.
                     *      *       *
    For the foregoing reasons, the denial of Lee’s § 2254
petition and denial of Lee’s motion to amend are
     AFFIRMED.