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 28 U.S.C. § 2254 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 28 U.S.C. § 2254(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 i