Full Opinion

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT WILLIAM CASTILLO, No. 19-99003 D.C. No. 2:04-cv- Petitioner - Appellant, 00868-RCJ-GWF v. OPINION JEREMY BEAN; AARON FORD, Respondents - Appellees. Appeal from the United States District Court for the District of Nevada Robert C. Jones, District Judge, Presiding Argued and Submitted March 24, 2026 Pasadena, California October 2, 2026 Before: Johnnie B. Rawlinson, Kenneth K. Lee, and Salvador Mendoza, Jr., Circuit Judges. Opinion by Judge Mendoza 2 CASTILLO V. BEAN SUMMARY * Habeas Corpus / Death Penalty The panel affirmed in part and reversed in part the district court’s judgment denying William Castillo’s second amended petition for a writ of habeas corpus under 28 U.S.C. § 2254 in which Castillo attacks his Nevada conviction and death sentence for murder, and remanded for further proceedings. The district court certified four claims for appeal and sought a certificate of appealability for two others claims. In the first certified claim, Castillo argued that he is entitled to equitable tolling of the statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act based upon uncertainty regarding the operation of Federal Rule of Civil Procedure 15(c) (concerning relation back) before the decision in Mayle v. Felix, 545 U.S. 644 (2005); and the district court’s scheduling orders. The panel held that Castillo’s first and second amended federal habeas petitions were untimely, and that equitable tolling sufficient to render the first or second amended § 2254 petition timely is not warranted. Mayle v. Felix does not fully correct the timeliness issue, and nothing indicates that counsel engaged in egregious conduct amounting to an extraordinary circumstance. Castillo did not allege any potential or actual conflict beyond the mere fact of the untimely first amended petition, and even if Castillo had demonstrated an extraordinary circumstance, Castillo did not show diligence * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. CASTILLO V. BEAN 3 in pursuing his first amended petition. The district court did not abuse its discretion in denying an evidentiary hearing on the equitable tolling issues. In the second certified claim, Castillo argued that his procedural default of his trial ineffective assistance of counsel claims should be excused under Martinez v. Ryan, 566 U.S. 1 (2012). The panel held that this case falls within the narrow class of cases where attorney error in state post- conviction relief (PCR) proceedings excuses a defendant’s state law procedural default. The panel therefore reversed the district court’s contrary ruling. The panel explained that this case is controlled by Hogan v. Bean, 140 F.4th 1001 (9th Cir. 2025), which held that where state law requires trial ineffective assistance claims to be brought in state PCR proceedings in the first instance (as opposed to bringing the claim on direct review), a claim of ineffective state PCR counsel is akin to a claim of ineffective direct-appeal counsel. The consequences of the default are no different: no state court will ever review the trial ineffective assistance of counsel claim. Martinez’s “cause” requirement can be demonstrated by showing that first PCR counsel “impeded or obstructed” a petitioner from complying with state procedures. Because the district court is best positioned to evaluate Castillo’s claims, the panel remanded the two claims that survive the timeliness issue for further proceedings. In the third certified claim, Castillo argued that his constitutional right to effective assistance of counsel was violated because trial counsel failed to investigate and present a mental state defense in the guilt phase. The panel disagreed with Castillo that his trial counsel rendered ineffective assistance by failing to present a neuropsychologist to testify at the guilty phase in support of 4 CASTILLO V. BEAN a diminished capacity defense or to pursue a mental state defense. Nor was there a reasonable likelihood that the jury would have accepted evidence that Castillo was legally insane at the time of the crimes or that such evidence would have changed the culpability finding at the guilt phase. Castillo did not demonstrate that he can meet the requirements for an evidentiary hearing. In the fourth certified claim, Castillo argued that Nevada’s lethal injection scheme violates the Eighth Amendment’s prohibition against cruel and unusual punishment as applied. The panel held that to obtain relief on this claim, Castillo must bring it in an action under 42 U.S.C. § 1983, and that the challenge also fails because it is not ripe. The panel declined to expand the certificate of appealability to include two claims: (1) that Castillo is entitled to relation back under Ross v. Williams, 950 F.3d 1160 (9th Cir. 2020) (en banc); and (2) that cumulative guilt and penalty proceeding errors render his conviction and sentence unconstitutional. COUNSEL Stacy M. Newman (argued), David Anthony, Brad D. Levenson, and Ellesse Henderson, Assistant Federal Public Defenders; Rene L. Valladares, Federal Public Defender; Office of the Federal Public Defender, Las Vegas, Nevada; for Petitioner-Appellant. Heather D. Procter (argued), Chief Deputy Attorney General; Aaron D. Ford, Nevada Attorney General; Office CASTILLO V. BEAN 5 of the Nevada Attorney General, Carson City, Nevada; for Respondents-Appellees. OPINION MENDOZA, JR., Circuit Judge: In 1996, William Castillo was sentenced to death for the murder of Isabelle Berndt. The Nevada Supreme Court affirmed Castillo’s conviction and sentence on direct review, and he was denied state post-conviction relief. Castillo now appeals the denial of his second amended petition for a writ of habeas corpus. We affirm the district court’s judgment on most of the issues. But we part ways on whether Castillo’s case falls within the narrow class of cases where attorney error in state post-conviction relief proceedings excuses a defendant’s state law procedural default. We hold that it does, reverse the district court’s contrary ruling, and remand for further proceedings consistent with this opinion. I. A. Guilt and Penalty Proceedings for the Murder of Isabelle Berndt In November 1995, William Castillo lived and worked as a roofer in Las Vegas, Nevada. He took a job reroofing the residence of 86-year-old Isabelle Berndt. While cleaning the site, Castillo discovered a key to the home. He told another roofing employee that he planned to return at a later date, at night. 6 CASTILLO V. BEAN On December 16, 1995, Castillo and a friend left their shared apartment at about 6:00 p.m., returning in the morning with a VCR, a box containing silverware, and a bag containing knit booties. The pair departed again a few minutes later, returning after about twenty minutes. Castillo and the friend informed Castillo’s girlfriend that they had committed a robbery and stolen several items. They also stated that Castillo hit a sleeping person with a tire iron he had brought into the house. Further, the two recounted that they had returned to the residence to burn it down, out of fear that they had left incriminating fingerprints on the walls. That same morning, Berndt’s neighbors notified the fire department when they saw her residence ablaze. Firefighters found Berndt’s body inside. Investigators concluded that two fires had been intentionally set, and the coroner concluded that Berndt had suffered injuries consistent with blows from a crowbar or tire iron. Police later searched Castillo’s apartment and recovered the VCR, silverware, and knit booties, all of which Berndt’s daughter identified as missing from her mother’s home. Officers arrested Castillo for murder. Castillo waived his Miranda rights. Though he first denied stealing the items, he later confessed to the robbery, killing Berndt, and burning down her home. He pleaded not guilty on all counts, and a jury trial commenced in Nevada state district court in August 1996. The defense did not put on a case in chief. Following deliberations, the jury convicted Castillo of conspiracy to commit burglary and/or robbery, burglary, robbery of a victim sixty-five years or older, first-degree murder with use of a deadly weapon, conspiracy to commit burglary and arson, and first-degree arson. CASTILLO V. BEAN 7 At the penalty phase of Castillo’s trial, the State presented witnesses who testified about Castillo’s juvenile history and prior criminal record. It also introduced victim impact evidence through testimony by Berndt’s daughter and Berndt’s granddaughters. The defense first presented testimony from a neuropsychologist, Dr. Lewis Etcoff, who concluded that neglect and severe abuse in Castillo’s childhood had left him severely disturbed, emotionally and behaviorally. Based on tests and a review of treatment records, Dr. Etcoff diagnosed Castillo with a reactive attachment disorder from childhood and attention-deficit/hyperactivity disorder (“ADHD”). Other defense witnesses included a correctional officer, a juvenile facility counselor, Castillo’s girlfriend, and Castillo’s mother. At the conclusion of the hearing, Castillo read an unsworn statement to the jury, expressing his regret and remorse for his conduct. The jury found four aggravating circumstances and three mitigating circumstances and determined that the aggravating circumstances outweighed the mitigating circumstances. It therefore returned a verdict of death. The trial court sentenced Castillo to consecutive terms on all counts, including the death sentence. B. Appellate and Post-Conviction Procedural History Castillo appealed his conviction and sentence to the Nevada Supreme Court, which affirmed the judgment of the state district court. Castillo v. State of Nevada, 956 P.2d 103 (Nev. 1998) (per curiam). The United States Supreme Court denied review. Castillo v. Nevada, 526 U.S. 1031 (1999). The Nevada Supreme Court then issued remittitur on April 28, 1999. 8 CASTILLO V. BEAN On April 2, 1999, Castillo filed his first state post- conviction relief (“PCR”) petition pro se. The trial court appointed counsel, Christopher Oram, to supplement the petition. Following an evidentiary hearing limited to Castillo’s claims of ineffective assistance of counsel and supplemental briefing, the court denied the petition. Oram filed an appeal to the Nevada Supreme Court, which affirmed the denial of post-conviction relief. Castillo v. State, 131 P.3d 589 (Nev. 2004). The United States Supreme Court denied review on October 4, 2004. Castillo v. Nevada, 543 U.S. 879 (2004). On June 22, 2004, Castillo filed a petition for writ of habeas corpus pro se with the United States District Court for the District of Nevada. In the section indicating the grounds for appeal, Castillo stated: “I allege that my state court conviction and/or sentence are unconstitutional, in violation of my Constitutional Rights, by incorporating herein the Constitutional claims contained in Exhibits 1 through 4 attached hereto.” Exhibits 1 through 4 were his opening and reply briefs on direct appeal and in support of his § 2254 petition. On July 7, 2004, upon Castillo’s motion to proceed in forma pauperis, the district court appointed the Federal Public Defender for the District of Nevada (“FPD”) to represent Castillo. In July 2007, Castillo informed the FPD that he did not wish for them to file anything further on his behalf. He then moved to voluntarily dismiss his federal habeas proceedings. In his affidavit to the court, Castillo cited “his extensive reflection and great consideration of [his] life, the lack of any possibility for a normal life in the future, and the lack of any actual or substantial constitutional claims to be presented to [the] court for review.” The district court granted Castillo’s request without prejudice, indicating that it would retain CASTILLO V. BEAN 9 Castillo’s federal public defender appointment through the completion of his execution. The Nevada Supreme Court set Castillo’s execution for October 2008. The week of the execution, the Nevada Supreme Court stayed all warrants of execution, including Castillo’s, pending the United States Supreme Court’s decision in Baze v. Rees, 551 U.S. 1192 (2007) (order granting certiorari), 1 which concerned whether the three-drug lethal injection protocol was unconstitutional. On May 7, 2008, Castillo moved to reopen his case and reinstate his petition for a writ of habeas corpus. The district court granted the motion. On December 15, 2008, the FPD filed an amended § 2254 petition in district court on Castillo’s behalf. The FPD then filed a second state PCR petition in Nevada trial court on September 18, 2009. The court dismissed this petition, concluding that it was untimely and could not overcome Nevada’s bar against successive petitions. See Nev. Rev. Stat. § 34.726; Nev. Rev. Stat. § 34.810(2). The Nevada Supreme Court affirmed. Castillo v. State, No. 56176, 2013 WL 3833276 (July 18, 2013). During the pendency of these state court proceedings, federal district court proceedings had been stayed. The federal district court reopened proceedings in January 2014, and Castillo filed his second amended petition on May 19, 2014. In an order issued on March 2, 2016, the court 1 The Supreme Court ultimately issued a plurality opinion in Baze. 553 U.S. 35 (2008). Seven justices agreed that the protocol at issue did not violate the Eighth Amendment. Id. at 61–63, 87 (Kennedy, J., concurring), 94 (Thomas, J., concurring), 113 (Breyer, J., concurring). The opinion “cleared any legal obstacle to use of the most common three- drug protocol” to carry out the death penalty. Glossip v. Gross, 576 U.S. 863, 869 (2015) (discussing Baze). 10 CASTILLO V. BEAN dismissed most of Castillo’s claims as either barred by the statute of limitations or barred by the doctrine of procedural default, or both. Castillo twice sought reconsideration of the court’s statute of limitations and procedural default determinations. The district court denied his requests, explaining that they were untimely and that Castillo had not shown how reconsideration was warranted. However, the court granted a certificate of appealability with regards to four issues: (1) whether Castillo is entitled to equitable tolling based upon the uncertainty regarding the operation of Federal Rule of Civil Procedure 15(c) before the decision in Mayle v. Felix, 545 U.S. 644 (2005), and the district court’s scheduling orders; (2) whether the procedural default of Castillo’s trial ineffective assistance of counsel claims should be excused under Martinez v. Ryan, 566 U.S. 1 (2012); (3) whether Castillo’s constitutional right to effective assistance of counsel was violated because trial counsel failed to present a psychological defense in the guilt phase of his trial; and (4) whether Castillo’s as-applied challenge to the constitutionality of lethal injection as a method of execution is cognizable in this habeas action. This appeal followed. II. A. Scope of Review Castillo has briefed six claims. The district court certified four for appeal. We address the certified claims in Part III. Castillo seeks a certificate of appealability for two other claims: (1) whether he “is entitled to relation back under Ross v. Williams, 950 F.3d 1160 (9th Cir. 2020) (en banc)”; and (2) “[w]hether cumulative error of guilt and CASTILLO V. BEAN 11 penalty proceeding errors prejudiced [him] and rendered his conviction and sentence unconstitutional.” We may not review Castillo’s uncertified claims unless we grant a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). We treat Castillo’s briefing of his uncertified issues as an application for a certificate of appealability. Fed. R. App. P. 22(b)(1)–(2); Ninth Cir. R. 22-1(e); Slack v. McDaniel, 529 U.S. 473, 483 (2000); McGill v. Shinn, 16 F.4th 666, 678 (9th Cir. 2021). We may issue a certificate of appealability “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For reasons we will explain in Part IV, we deny a certificate of appealability as to both of Castillo’s uncertified claims. B. Standard of Review We have jurisdiction under 28 U.S.C. § 2253. We review the district court’s denial of a habeas petition de novo. Stanley v. Schriro, 598 F.3d 612, 617 (9th Cir. 2010). “If the facts underlying a claim for equitable tolling are undisputed, the question of whether the statute of limitations should be equitably tolled is also reviewed de novo.” Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). We otherwise review findings of fact made by the district court for clear error. Id. Finally, we review the district court’s conclusion that a claim is procedurally defaulted de novo. Cooper v. Neven, 641 F.3d 322, 326 (9th Cir. 2011). Our review of Castillo’s claims is subject to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104–132, 110 Stat. 1214. Under 12 CASTILLO V. BEAN AEDPA, habeas relief may not be granted unless the state court’s decision: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d)(1)–(2); see Harrington v. Richter, 562 U.S. 86, 97–98 (2011). Section 2254(d), as amended by AEDPA, sets forth a “highly deferential standard.” Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997)). Habeas corpus is “not a substitute for ordinary error correction through appeal,” but rather a “guard against extreme malfunctions in the state criminal justice systems.” Harrington, 562 U.S. at 102–03 (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in judgment)). “[A] state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103. When deciding whether an evidentiary hearing should be granted, a court “must consider whether such a hearing could enable an applicant to prove the petition’s factual CASTILLO V. BEAN 13 allegations, which, if true, would entitle the applicant to federal habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007). The court must consider the deferential standards prescribed by § 2254. Id. III. A. Certified Claim One: Equitable Tolling AEDPA imposes a fixed time limit for collateral attacks on a judgment of conviction in federal court. Section 2244(d)(1) provides: “A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” Section 2244(d)(2) provides that “[t]he time during which a properly filed application for State post- conviction . . . review . . . is pending shall not be counted” against the one-year period. So, our first task is to determine when the statute of limitations ran here. We then address Castillo’s arguments regarding equitable tolling. 1. Castillo’s first and second amended federal habeas petitions were untimely. Castillo’s conviction became final on March 22, 1999, when the United States Supreme Court denied his petition for a writ of certiorari. See Castillo, 526 U.S. 1031. The one-year limitations period for Castillo’s federal habeas petition began running on that date. Castillo filed his first state PCR petition eleven days later, on April 2, 1999. That petition was properly filed and tolled the limitations period under 28 U.S.C. § 2244(d)(2). This left 354 days on the clock. Castillo’s first state post-conviction action concluded on October 27, 2004, when the Nevada Supreme Court issued its remittitur after affirming the denial of relief in 14 CASTILLO V. BEAN Castillo’s action. The limitations period resumed running on that date. So without any equitable tolling, the one-year limitations period ran out 354 days later, on October 16, 2005. Before that deadline, on June 22, 2004, Castillo mailed his original pro se habeas petition to the district court for filing. The parties do not dispute that the petition was timely filed on that date. See Houston v. Lack, 487 U.S. 266, 274– 76 (1988) (adopting mailbox rule to determine date of filing of notice of appeal). The FPD was appointed to represent Castillo on July 7, 2004. Castillo filed his first amended petition on December 15, 2008—1,156 days after the limitations period expired. He filed his second amended petition on May 19, 2014—3,137 days after the limitations period expired. There is no tolling for the pendency of a federal habeas petition. Duncan v. Walker, 533 U.S. 167, 172, 181–82 (2001). Castillo’s first and second amended federal habeas petitions were thus untimely unless the equitable tolling doctrine applies. Castillo champions two arguments as to why the doctrine applies: first, the scheduling orders from the district court were misleading and did not reference the AEDPA statute of limitations, and Castillo relied on those to his detriment. Second, the deficient performance by his federal habeas counsel caused the untimely filing. We examine the strength of these contentions in turn. 2. Mayle v. Felix does not fully correct the timeliness issue with Castillo’s first and second amended federal habeas petitions. Castillo argues that he is entitled to equitable tolling because the scheduling orders from the district court were misleading. He explains that the district court waited until CASTILLO V. BEAN 15 May 31, 2005, to issue the initial scheduling order and argues that it is nonsensical that the court would have set the deadline for an amended petition after the AEDPA statute of limitations expired if the court believed that limit applied. But even if we agree with Castillo’s argument, it only entitles him to equitable tolling up to June 23, 2005, when the Supreme Court refined the contours of the relation-back doctrine in Mayle. Castillo is correct that Ninth Circuit law was previously unsettled regarding the breadth and scope of when claims in an amendment relate back to an original petition. See Williams v. Filson, 908 F.3d 546, 560 (9th Cir. 2018). Before Mayle was decided, there was “no reason to suspect that Rule 15(c) would pose an obstacle to consideration of newly added claims in an amended petition.” Id. Under the Ninth Circuit’s broad construction of Rule 15(c), “habeas practitioners reasonably assumed that newly added claims would relate back to the original petition so long as the claims arose out of the same trial and conviction challenged in the original petition.” Id. So Castillo’s counsel may have reasonably believed that they could add new claims in an otherwise untimely § 2254 petition so long as they satisfied Rule 15(c). However, the Supreme Court clarified in Mayle that claims in untimely amendments to a § 2254 petition would not relate back or escape AEDPA’s time limits unless they were the same in time and type as a timely-filed claim. Id. at 561. At that point, Castillo and his counsel were forewarned that they needed to file an amendment with any new claims that did not meet that standard. Assuming that Castillo was entitled to equitable tolling until Mayle issued on June 23, 2005, he would have had 354 days left on the AEDPA calendar, which would have expired without additional tolling on June 12, 2006. Yet counsel waited 16 CASTILLO V. BEAN more than three years to file the first amended § 2254 petition and more than four years to file the second. In other words, neither petition can be salvaged, absent some other analytical vehicle warranting equitable tolling. 3. Habeas counsel’s performance does not warrant equitable tolling for the time period after Mayle. Next, Castillo argues that, after Mayle, he should be accorded equitable tolling because his habeas counsel rendered deficient performance in failing to timely file an amended petition. He acknowledges on appeal that the record is decisively silent as to the reason for this blunder. Castillo contends, however, that it was erroneous for the district court to conclude that the delay was merely negligence. As we know, the one-year statute of limitations for filing a habeas petition may be equitably tolled if “extraordinary circumstances beyond a prisoner’s control make it impossible to file a petition on time.” Spitsyn, 345 F.3d at 799 (citation modified). This is a “fact-specific inquiry” that requires a petitioner to show “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented timely filing.” Id. (quoting Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001)); Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005), superseded by statute on other grounds). “Extraordinary circumstances” do not include “ordinary” attorney negligence. See Spitsyn, 345 F.3d at 800. For example, in Frye, we concluded that “the miscalculation of the limitations period by Frye’s counsel and his negligence in general do not constitute extraordinary circumstances sufficient to warrant equitable tolling.” 273 CASTILLO V. BEAN 17 F.3d at 1146; see also Miranda v. Castro, 292 F.3d 1063, 1068 (9th Cir. 2002) (same). But sufficiently egregious attorney conduct is included as an extraordinary circumstance. Spitsyn, 345 F.3d at 800. In Spitsyn, a non-capital case, the petitioner’s counsel “completely failed to prepare and file a petition” despite having nearly a full year to do so. Id. at 801. Counsel further failed to return the petitioner’s file for more than two months after the deadline passed. Id. Our sister circuits have similarly applied equitable tolling in cases where counsel failed to file a federal habeas petition. E.g., Baldayaque v. United States, 338 F.3d 145, 152–53 (2d Cir. 2003) (noting counsel also did no legal research on petitioner’s case and never spoke to or met petitioner); Nara v. Frank, 264 F.3d 310, 320 (3d Cir. 2001) (noting counsel also failed to update petitioner of court proceedings and refused to remove herself as appointed counsel, thus preventing petitioner from “moving his case forward”), overruled in part on other grounds by Carey v. Saffold, 536 U.S. 214 (2002). But as Castillo concedes, the record is simply silent as to why counsel failed to meet the deadline to file an amended § 2254 petition in his case. All of the cases that Castillo relies on reference more extreme circumstances of attorney incompetence that are not present in this case. There is no indication that counsel failed to respond to communications, refused to timely return files or otherwise prevented work from being done on the case, or neglected to file a timely initial petition at all. See Holland, 560 U.S. at 631; Spitsyn, 345 F.3d at 800–02; see also Calderon v. U.S. Dist. Ct. for Cent. Dist. of Cal., 163 F.3d 530, 541 (9th Cir. 1998) (stating that petitioner’s alleged mental incompetency justified equitable tolling, “at least until a reasonable period of time has elapsed after the district court makes a competency 18 CASTILLO V. BEAN determination”), abrogated on other grounds by Woodford v. Garceau, 538 U.S. 202 (2003). Put another way, nothing indicates that counsel’s conduct constituted anything more than lack of oversight and garden-variety negligence. Castillo also challenges the district court’s refusal to appoint separate, conflict-free counsel to investigate why the FPD failed to timely file an amended § 2254 petition. He suggests that the FPD could now be conflicted in any such investigation because they would have to argue against their own professional reputation. Castillo cites for support Christeson v. Roper, where the Supreme Court determined that the district court erred in failing to appoint substitute counsel. 574 U.S. 373, 375–76 (2015). Key in Christeson were the facts that the attorneys failed to meet with the petitioner until well after the initial petition was due and that a legal ethics expert had opined that counsel’s behavior constituted abandonment. Id. at 374–75. The Court reasoned that substitution of counsel is warranted “when it is in the interests of justice,” particularly “when an attorney’s interest in avoiding damage to his own reputation is at odds with his client’s strongest argument—i.e., that his attorneys had abandoned him.” Id. at 377–78. (citation modified). In Christeson’s case, his counsel’s arguments “manifestly served their own professional and reputational interests” and were so “directly and concededly contrary to their client’s interest” that substitution of counsel was warranted. Id. at 379. Here, there is none of that. Castillo has not alleged any potential or actual conflict beyond the mere fact of the untimely first amended § 2254 petition. Again, the record does not show that he was abandoned by counsel. And the FPD did acknowledge their own errors in the opening brief filed in this appeal, which indicates that they were not so CASTILLO V. BEAN 19 concerned with the potential damage to their professional reputation. Even if Castillo’s counsel had performed deficiently in the untimely filing of his first and second amended § 2254 petitions, so as to constitute an extraordinary circumstance, Castillo has not shown his diligence in pursuing his first amended § 2254 petition. See Holland, 560 U.S. at 653 (reiterating that a petitioner need not show “maximum feasible diligence,” but rather “reasonable diligence” (quoting Starns v. Andrews, 524 F.3d 612, 618 (5th Cir. 2008))). He does not allege ignored or rebuffed efforts to communicate with counsel regarding the status of his petition. His only defense is that he timely filed his original pro se § 2254 petition before the state court proceedings concluded. We also note that Castillo moved for voluntary dismissal of his federal habeas proceedings in 2007. The district court granted his request. Then on May 7, 2008, Castillo moved to reopen his case and reinstate his petition for a writ of habeas corpus. On May 14, 2008, the district court granted the motion and stayed execution. The FPD filed the first amended § 2254 petition on December 15, 2008, seven months after proceedings were reopened. On the record before us, there is no evidence that Castillo pressed the FPD to file an amended petition before he voluntarily dismissed the case or after the original § 2254 petition was reinstated. Thus, equitable tolling sufficient to render the first or second amended § 2254 petition timely is not warranted. 4. An evidentiary hearing is not warranted in this instance. The record is sufficiently developed to determine that Castillo failed to demonstrate extraordinary circumstances 20 CASTILLO V. BEAN or diligence sufficient to render the first and second amended petitions timely. See Roberts v. Marshall, 627 F.3d 768, 771–73 (9th Cir. 2010) (determining that district court did not abuse its discretion in denying evidentiary hearing where record was sufficiently developed to deny claim, notwithstanding petitioner’s assertions); Orthel v. Yates, 795 F.3d 935, 939–41 (9th Cir. 2015) (applying Roberts). Thus, the district court did not abuse its discretion in denying an evidentiary hearing on the equitable tolling issues. Both the State and Castillo agree that only two Martinez claims survive the timeliness issue: Claim Eight (II)(A), pertaining to the admission of testimony from Berndt’s daughter, and Claim Eleven, pertaining to the applicability of the deadly weapon enhancement statute. The remaining question is whether these claims were procedurally defaulted. B. Certified Claim Two: The Martinez Issues Castillo’s Martinez argument has more traction. Federal courts are generally not allowed under AEDPA to consider claims that were “not presented to the state courts consistent with the State’s own procedural rules.” Shinn v. Ramirez, 596 U.S. 366, 378 (2022) (citation modified). However, the Supreme Court has carved out an exception to this procedural default when a federal habeas petitioner “can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). Establishing cause requires a petitioner to show some “external impediment” to compliance with state procedure. Id. at 753 (quoting Murray v. Carrier, 477 U.S. 478, 492 CASTILLO V. BEAN 21 (1986)). “A factor is external to the defense if it cannot fairly be attributed to the prisoner.” Davila v. Davis, 582 U.S. 521, 528 (2017) (internal quotation marks omitted). “Attorney ignorance or inadvertence” generally is not sufficient. See Coleman, 501 U.S. at 753; Martinez, 566 U.S. at 8. This is because “the attorney is the petitioner’s agent when acting, or failing to act, in furtherance of the litigation.” Coleman, 501 U.S. at 753. Importantly, though, “[a]ttorney error that constitutes ineffective assistance of counsel is cause.” Id. at 753–54. This is because the Sixth Amendment imputes to the State responsibility for any procedural default that occurs as a result of ineffective assistance of counsel. Id. at 754. Yet, there is no constitutional right to counsel in state PCR proceedings. Id. at 756–57; Shinn, 596 U.S. at 383. And in proceedings where there is no constitutional right to counsel, there can be no corresponding Sixth Amendment right to effective assistance of counsel. So usually, even egregious attorney error in seeking state post-conviction relief does not establish cause. See Davila, 582 U.S. at 524. Importantly, Martinez sets forth a narrow exception for attorney ignorance and inadvertence in initial-review collateral proceedings. 566 U.S. at 9. In Martinez, the Supreme Court explained that “[w]hen an attorney errs in initial-review collateral proceedings, it is likely that no state court at any level will hear the prisoner’s claim.” Id. at 10. So, where state law requires trial ineffective assistance claims to be brought in state PCR proceedings in the first instance (as opposed to bringing the claim on direct review), “a claim of ineffective state PCR counsel is akin to a claim of ineffective direct-appeal counsel.” Hogan v. Bean, 140 F.4th 1001, 1027 (9th Cir. 2025); see also Hogan v. Bean, 174 F.4th 700 (9th Cir. 2026) (denying rehearing en banc). 22 CASTILLO V. BEAN To jumpstart a stalled ineffective assistance claim, a petitioner must satisfy four factors under Martinez: (1) the claim of “ineffective assistance of trial counsel” was a “substantial” claim; (2) the “cause” consisted of there being “no counsel” or only “ineffective” counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the “initial” review proceeding in respect to the “ineffective-assistance-of-trial-counsel claim”; and (4) state law requires that an “ineffective assistance of trial counsel [claim] . . . be raised in an initial-review collateral proceeding. Trevino v. Thaler, 569 U.S. 413, 423 (2013) (citation modified) (quoting Martinez, 566 U.S. at 13–14). Here, the district court concluded that Martinez did not excuse Castillo’s procedurally defaulted claims. It first distinguished Martinez as having established an exception to Arizona’s second-or-successive procedural bars, whereas Nevada courts enforced a timeliness bar to dismiss Castillo’s claims. See Nev. Rev. Stat. § 34.726. The district court put weight on the fact that Castillo delayed filing his second state PCR petition by more than ten years after his direct appeal concluded, and almost five years after proceedings on his first PCR petition concluded. Second, the district court reasoned that a considerable amount of time elapsed between Castillo’s state PCR petitions, such that any alleged ineffectiveness of his first state habeas counsel could not, “[a]s a matter of equity,” serve as cause for the procedural default of his ineffective assistance of counsel claims in his CASTILLO V. BEAN 23 second petition. The district court explained that because Oram represented Castillo until late 2004, “only part of the time over which the statute of limitations default occurred,” the ineffective assistance of that counsel could not explain the remaining five years of delay in bringing the second state PCR petition claims. Our decision in Hogan controls here. There, the petitioner did not raise his trial ineffective assistance claims until his third state PCR petition. 140 F.4th at 1013–14. Nevada courts dismissed the claims as successive under Nevada Revised Statute (“NRS”) § 34.810 and untimely under NRS § 34.726. Hogan v. State, No. 54011, 2012 WL 204641, at *1 (Nev. Jan. 20, 2012). Following the state proceedings, the federal district court reopened proceedings. Hogan v. Baker, No. 2:97–cv–00927, 2014 WL 1093111 (D. Nev. Mar. 19, 2014). It dismissed the majority of Hogan’s claims as procedurally defaulted for two reasons: (1) the procedural default in Martinez was based on a state court rule barring successive petitions, whereas the procedural default in Hogan’s case was based on a time limitation imposed by Nevada law; and (2) there was “insufficient causal connection between the alleged ineffective assistance of Hogan’s first post-conviction counsel and the procedural default” at issue in the case. Id. at *9. The district court explained that even if Hogan’s attorney during his first state habeas action was ineffective, that attorney concluded representation when the Nevada Supreme Court affirmed the state district court’s denial of his first habeas petition. Id. Hogan was subsequently represented by other counsel, so ineffective assistance of his first habeas atto