Gulbrandson

Opinion by Judge IKUTA; Partial Concurrence and Partial Dissent by Judge D.W. NELSON. .

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 successive petition.

I

A

Gulbrandson and Irene Katuran were partners in a Phoenix-based photography business called Memory Makers. For about a year, during 1990, they were also romantically involved. This relationship ended in January 1991, when Irene began seeing another man. When their personal relationship deteriorated, the business relationship soured as well, and Gulbrandson began suspecting that Irene was trying to buy him out of Memory Makers. State v. Gulbrandson, 184 Ariz. 46 , 906 P.2d 579, 586 (1995).

This tension reached a high point on Valentine’s Day 1991. Gulbrandson became intoxicated and argued with Irene in the presence of two friends, Sally and Charles Maio. Gulbrandson then tried to strangle Irene and had to be pulled off by Charles Maio. Later that night, Gulbrand-son…

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. I would hold that the Arizona Supreme Court unreasonably determined the facts in denying this claim 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 1039-40. 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 why counsel did not call Dr. Blinder during the sentencing hearing, making suspect the post-conviction court’s resolution of this claim without any evidentiary development.

The…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID GULBRANDSON , No. 07-99012 Petitioner-Appellant, D.C. No. v. CV-98-02024-

PHX-SMM

CHARLES L. RYAN , Arizona Department of Corrections, Respondent-Appellee.

DAVID GULBRANDSON , No. 09-72779 Petitioner, D.C. No. v. CV-98-2024-

PHX-SMM

CHARLES L. RYAN ,

Respondent. OPINION

Appeal from the United States District Court for the District of Arizona Stephen M. McNamee, Senior District Judge, Presiding

Argued and Submitted June 14, 2012—San Francisco, California

Filed March 18, 2013 GULBRANDSON V . RYAN

Before: Dorothy W. Nelson, Johnnie B. Rawlinson, and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta; Partial Concurrence and Partial Dissent by Judge D.W. Nelson

SUMMARY*

Habeas Corpus/Death Penalty

The panel affirmed the district court’s denial of a 28 U.S.C. § 2254 habeas corpus petition by an Arizona state prisoner challenging his conviction and capital sentence for murder, and denied his request to file a second or successive petition.

The panel first held that the state court’s…