UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JOHN BEJARANO, No. 11-99000

Petitioner-Appellant, D.C. No. 2:98-cv-01016- v. PMP-RJJ WILLIAM REUBART, Warden, OPINION Respondent-Appellee.

Appeal from the United States District Court for the District of Nevada Philip M. Pro, District Judge, Presiding

Argued and Submitted January 23, 2024 Pasadena, California

Filed May 2, 2025

Before: Kim McLane Wardlaw, Johnnie B. Rawlinson, and Ryan D. Nelson, Circuit Judges.

Opinion by Judge R. Nelson; Concurrence by Judge Wardlaw 2 BEJARANO V. REUBART

SUMMARY *

Habeas Corpus / Death Penalty

The panel affirmed the district court’s denial of John Bejarano’s habeas corpus petition challenging his Nevada conviction and death sentence for first-degree murder, robbery, and other felonies. In his first certified claim, Bejarano argued that the district court wrongly denied him an evidentiary hearing. Under 28 U.S.C. § 2254(e)(2), Bejarano was required to exercise due diligence in developing the factual predicate for his claims of ineffective assistance of trial counsel. He failed to do so when required by state law. The panel held that because that failure is attributable to him, the district court did not abuse its discretion in denying an evidentiary hearing. In his second certified claim, Bejarano argued that trial counsel was ineffective for failing to investigate and present additional mitigation evidence during the penalty phase of his trial. The panel held that even assuming Bejarano’s trial counsel performed deficiently at times by not presenting some pieces of alleged mitigation evidence, Bejarano was not prejudiced by counsel’s performance. In a third set of certified claims, Bejarano argued that his counsel on direct appeal rendered ineffective assistance. The panel expanded the certificate of appealability to encompass the district court’s timeliness * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. BEJARANO V. REUBART 3

determinations on these claims. The panel denied some claims because they do not relate back to the original petition, but rejected others on the merits, concluding that the Nevada Supreme Court’s rejection of them was not unreasonable. In a fourth certified claim, Bejarano argued that the Nevada Supreme Court failed to provide adequately close scrutiny of his death sentence. Applying the deferential standards from the Antiterrorism and Effective Death Penalty Act, the panel held that the Nevada Supreme Court provided appropriate appellate scrutiny. The panel denied Bejarano’s request for a certificate of appealability on three other issues because he did not make a substantial showing of the denial of a constitutional right. Judge Wardlaw concurred except insofar as the majority did not hold that trial counsel’s failure to present favorable character witness testimony was deficient. She agreed with the majority’s conclusion that the failure to call these character witnesses did not ultimately prejudice Bejarano, but wrote that counsel’s failure to present readily available, and helpful, mitigation evidence was deficient performance.

COUNSEL David Anthony (argued) and Brad D. Levenson, Assistant Federal Public Defenders; Rene L. Valladares, Federal Public Defender; Federal Public Defender for the District of Nevada, Las Vegas, Nevada; for Petitioner-Appellant. Michael J. Bongard (argued) and Jaimie Stilz, Senior Deputy Attorneys General; Aaron D. Ford, Attorney General of 4