Gulbrandson

ORDER

The opinion and dissent filed on March 18, 2013, are amended. The superseding amended opinion and dissent will be filed concurrently with this order.

*981 With these amendments, a majority of the panel has voted to deny appellant’s petition for panel rehearing. Judge Nelson would grant the petition. Judge Raw-linson and Judge Ikuta voted to deny the petition for rehearing en banc. Judge Nelson recommended granting it. The petition for rehearing en banc was circulated to the judges of the court, and no judge requested a vote for en banc consideration. The petition for rehearing and the petition for rehearing en banc are DENIED. No further petitions for rehearing or petitions for rehearing en banc will be entertained.

OPINION

David Gulbrandson is an Arizona capital prisoner who appeals from the denial of his first habeas petition and also seeks authorization to file a second or successive habe-as petition. We affirm the district court’s denial of Gulbrandson’s first petition and deny his request to file a second or súcces-sive petition.

I

A

Gulbrandson and Irene Katuran were partners in" a Phoenix-based'photography business called Memory Makers. For about a year, during…

concurring in part and dissenting in part:

I concur in the majority’s opinion in large part. My central disagreement concerns the claim that defense counsel failed to call Dr. Blinder during the penalty hearing to testify about Gulbrandson’s state of mind at the time of the crime. This testimony would have rebutted the sole aggravating circumstance that made Gulbrandson eligible for the death penalty and would have provided crucial mitigating evidence. I would hold that the Arizona Supreme Court unreasonably determined the facts in denying Gulbrandson habeas relief and would remand for an evidentiary hearing on that basis. Therefore, I respectfully dissent.

My colleagues deny Gulbrandson’s claim on the merits by concluding that Gulbrand-son was not prejudiced by counsel’s decision not to recall Dr. Blinder at sentencing because the evidence, if presented, would have been cumulative. Majority at 990-91. I cannot agree. We cannot determine whether Dr. Blinder’s 1997 declaration is cumulative of the mental health evidence presented during the guilt phase of trial, but it does not appear so. 1 And a review of the record before the post-conviction court raises many questions about…