Full Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 9 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT RAY ANTONIO AZCARATE, No. 24-3174 D.C. No. Petitioner - Appellant, 2:17-cv-02190-RFB-EJY v. MEMORANDUM* BRIAN WILLIAMS, Warden; ATTORNEY GENERAL OF THE STATE OF NEVADA, Respondents - Appellees. RAY ANTONIO AZCARATE, No. 24-3443 Petitioner - Appellee, D.C. No. 2:17-cv-02190-RFB-EJY v. BRIAN WILLIAMS; ATTORNEY GENERAL OF THE STATE OF NEVADA, Respondents - Appellants. Appeal from the United States District Court for the District of Nevada Richard F. Boulware, II, District Judge, Presiding Argued and Submitted October 27, 2026 * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. San Francisco, California Before: CLIFTON, BYBEE, and SUNG, Circuit Judges. Petitioner Ray Antonio Azcarate appeals the district court’s order denying his petition for habeas relief warranting a new trial, while Respondents cross-appeal the district court’s order granting Azcarate’s petition for habeas relief vacating his sentence of life in prison without the possibility of parole. For the reasons discussed below, we affirm the district court’s decision on appeal and reverse the district court’s decision on cross-appeal. 1. We have jurisdiction over the decision on appeal pursuant to a certificate of appealability that was granted by the district court. 28 U.S.C. § 2253(c). We have jurisdiction over the decision on cross-appeal as an appeal by the State from a final order granting habeas relief. 28 U.S.C. § 2253(a); see Fed. R. App. P. 22(b)(3). We review a ruling on a habeas corpus petition pursuant to 28 U.S.C. § 2254 de novo and any underlying factual findings for clear error. Martinez v. Cate, 903 F.3d 982, 991 (9th Cir. 2018). “The district court’s application of [the Antiterrorism and Effective Death Penalty Act of 1996] to the last reasoned state court decision is a mixed question of law and fact which we review de novo.” Mann v. Ryan, 828 F.3d 1143, 1151 (9th Cir. 2016). 2. On appeal, Azcarate argues that the Nevada Supreme Court’s decision to permit the admission of evidence related to a previous domestic battery incident 2 24-3174 involving Stacey Jensen, the woman he would eventually be convicted of murdering, “involved an unreasonable application of[] clearly established Federal law[.]” 28 U.S.C. § 2254(d)(1). An unreasonable application “is one with which no fairminded jurist would agree.” Andrew v. White, 604 U.S. 86, 92 (2025) (citing Harrington v. Richter, 562 U.S. 86, 101 (2011)). At the time of the Nevada Supreme Court’s decision in 2009, it was clearly established that “the Due Process Clause forbids the introduction of evidence so unduly prejudicial as to render a criminal trial fundamentally unfair,” id. at 96, and that evidence cannot be introduced under a theory that it shows that the defendant has a “propensity” to act a certain way, see Old Chief v. United States, 519 U.S. 172, 182 (1997); Michelson v. United States, 335 U.S. 469, 475 (1948). However, “[o]nly if there are no permissible inferences the jury may draw from the evidence can its admission violate due process.” Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991). The Nevada Supreme Court held that the evidence at issue “was relevant to prove motive and intent,” which are permissible reasons to admit evidence that might otherwise raise propensity inferences. Old Chief, 519 U.S. at 190 (citing Fed. R. Evid. 404(b)). And despite Azcarate’s arguments to the contrary, no Supreme Court decision prior to 2009 “clearly established” that a court must explicitly analyze “the degree of prejudice” that the admission of the evidence caused the defendant. See White, 604 U.S. at 96 (2025 case noting that a court “might consider . . . the 3 24-3174 degree of prejudice” (emphasis added)); see also Johnson v. Williams, 568 U.S. 289, 300 (2013) (“[F]ederal courts have no authority to impose mandatory opinion- writing standards on state courts[.]”). Azcarate also argues that the Nevada Supreme Court’s decision was based on an “unreasonable determination of the facts” because the State changed its theory of relevance at closing such that no permissible inferences could have been drawn from the evidence. 28 U.S.C. § 2254(d)(2). Specifically, he points out that the State initially argued that the evidence was relevant to show premeditation and deliberation, but at closing, the State said that their theory of premeditation and deliberation was not predicated on that evidence. However, he overlooks that the State had also argued that the evidence was relevant to show “malice,” “motive, intent, and absence of mistake,” and that the Nevada Supreme Court held that the evidence was relevant to show “motive and intent,” not premeditation and deliberation. As such, “an appellate panel, applying the normal standards of appellate review, [could] reasonably conclude that the finding is supported by the record.” Pizzuto v. Yordy, 947 F.3d 510, 523 (9th Cir. 2019) (citation omitted). The Nevada Supreme Court reasonably held that the prior bad acts evidence was admissible. We therefore affirm the district court’s order denying habeas relief on this ground. 3. On cross-appeal, Respondents argue that the district court erroneously 4 24-3174 concluded that Azcarate was prejudiced by ineffective assistance of counsel at the penalty phase of his trial. To prevail on a claim for ineffective assistance of counsel, the petitioner must show both “that counsel’s performance was deficient” and “that the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). To succeed on the prejudice prong, the petitioner “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “In assessing prejudice, we reweigh the evidence in aggravation against the totality of available mitigating evidence.” Wiggins v. Smith, 539 U.S. 510, 534 (2003). Throughout the trial, Azcarate claimed that at the time of the murder he was experiencing hallucinations and psychosis brought on by his drug addiction. At sentencing, his counsel argued that the jury should impose a parole-eligible sentence because his time in jail on medication and away from drugs had allowed him to recover from his mental illness, and he could therefore be rehabilitated in time for parole eligibility. The state does not contest Azcarate’s contention that his counsel performed deficiently by providing no additional evidence or mitigation at that time except for his allocution. See Criminal Justice Standards for the Defense Function 4-8.3(c) (A.B.A. 2017) (“Defense counsel should present all arguments or evidence which will assist the court or its agents in reaching a sentencing disposition favorable to the accused.”). 5 24-3174 A defendant can be prejudiced “from the omission of the substantial and compelling mitigating evidence that [counsel] could have introduced, but did not.” Andrews v. Davis, 944 F.3d 1092, 1116 (9th Cir. 2019). Azcarate argues that information in two medical competency evaluations conducted before trial, but two years after the murder, would have helped to corroborate his claims about his mental illness and may have convinced the jury that he could be rehabilitated and was therefore deserving of a parole-eligible sentence.1 We disagree. The evaluations indicate only that Azcarate’s self-reported symptoms and history would “appear[] to meet the criteria for . . . Substance Induced Psychotic Disorder (in remission),” and that his time away from drugs and on medication “appear[ed] to have stabilized his mood” and had “apparently decreased his delusional thinking.” Nothing in the doctors’ testimony would have been able to corroborate Azcarate’s claim that he actually committed the murder while suffering from a psychotic delusion, or that he had actually improved while in jail. In addition, if the evaluations were introduced in their entirety, then the jury would also have seen potentially damaging information, including that he “was involved in a physical altercation over gambling” while in jail even after he had been away from street drugs and on 1 Although Azcarate filed these documents under seal, he discussed information from the documents at length in his publicly available reply brief and during the publicly viewable oral arguments. As such, we are “disinclined to maintain the seal.” 9th Cir. R. 27-13 advisory committee’s note. 6 24-3174 medications for many months. Weighing this evidence against “the evidence in aggravation” further undermines Azcarate’s argument. At sentencing, the State had introduced evidence of Azcarate’s prior drug-related convictions that had resulted in two lengthy prison stays, during which time he had apparently failed to improve despite being away from street drugs. Additionally, throughout the trial, the State introduced testimony that tended to undermine Azcarate’s claim that he had been suffering from a delusion at the time, and that he had instead appeared to be “alert” and did not have any mental problems. Finally, the jury also heard testimony and evidence that Azcarate had showed no remorse for his actions, that he had demanded the victim “apologize” to him while she was dying, and that he had attempted to clean up the crime scene and had hoped for “more time” before the police arrived. This aggravating evidence tends to establish that the jury would have imposed a sentence of life without parole even if the medical competency evaluations had been introduced. Azcarate was not prejudiced by his counsel’s deficient performance. We therefore reverse the district court’s order granting habeas relief on this ground. AFFIRMED in part; REVERSED AND REMANDED in part.2 2 Azcarate’s motion to supplement the record (Dkt. 23) is DENIED. 7 24-3174