Jones v. Ryan ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANNY LEE JONES,  No. 07-99000
Petitioner-Appellant,
v.  D.C. No.
CV-01-00384-SRB
CHARLES L. RYAN,*
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued June 11, 2009
Submitted July 6, 2009
San Francisco, California
Filed October 2, 2009
Before: Betty B. Fletcher, Michael Daly Hawkins and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Thomas
*Charles L. Ryan is substituted for his predecessor Dora B. Schriro as
Director of the Arizona Department of Corrections. Fed. R. App. P.
43(c)(2).
14119
JONES v. RYAN 14125
COUNSEL
Terry Goddard, Arizona Attorney General, Kent E. Cattani,
Chief Counsel, Capital Litigation Section, and Jeffrey A.
Zick, Assistant Attorney General, Phoenix, Arizona, for the
respondents-appellees.
Jon M. Sands, Federal Public Defender, Leticia Marquez,
Assistant Public Defender, and Sylvia J. Lett, Assistant Public
Defender, Tucson, Arizona, for the petitioner-appellant.
OPINION
THOMAS, Circuit Judge:
Danny Lee Jones, an Arizona inmate on Death Row,
appeals the district court’s denial of his petition for writ of
habeas corpus. We conclude that Danny was denied constitu-
tionally effective assistance of counsel at sentencing, and we
reverse the judgment of the district court.
I
A
On March 26, 1992, Danny Jones spent the day partying in
Richard Weaver’s garage in Bullhead City, Arizona, when a
14126 JONES v. RYAN
fight broke out. Evidence at trial indicated that Danny hit
Weaver over the head multiple times with a wooden baseball
bat, killing him. Danny then went into the house where he
encountered Weaver’s grandmother, Katherine Gumina.
Danny struck Gumina in the head with the bat and knocked
her to the ground. Danny then made his way to Weaver’s bed-
room where he found Tisha Weaver, Weaver’s seven-year-old
daughter, hiding under her parents’ bed. Evidence showed
that Tisha was hit in the head with the bat, and either stran-
gled or suffocated with a pillow. Danny was arrested in Las
Vegas, Nevada, and he was indicted in Arizona on two counts
of murder in the first degree, and one count of attempted murder.1
B
A public defender in the Mojave County Public Defender’s
Office was assigned Danny’s case. At the time, the defense
lawyer had been an attorney for little more than three years,
and he had never been lead attorney on a capital case. The
defense lawyer requested $5,000 from the trial court for
expert witnesses. The court authorized $2,000.2 The defense
lawyer split that money between a crime scene investigator
and an addictionologist.
The jury convicted Danny on all counts. Judge James Cha-
vez scheduled the sentencing hearing for three months later.
The defense lawyer subsequently took his first trip to Reno,
Nevada, in order to interview Danny’s mother, Peggy Jones,
1
Gumina initially survived the attack and was in a coma for 17 months
before eventually dying from her injuries. The prosecution never amended
the indictment after Gumina died.
2
The trial judge granted the $2,000 during a March 17, 1993, status con-
ference and stated:
If this is all you need pretrial, you may need more at trial, and then of
course the sentencing hearing if we get that far, so — but, I am willing
to go $2,000 prior to trial, and then with the understanding that I am will-
ing to listen again if you need more.
JONES v. RYAN 14127
and step-father, Randy Jones, to investigate possible mitiga-
tion defenses.
The defense lawyer presented testimony from two indepen-
dent witnesses at sentencing: investigator Austin Cooper, and
Randy Jones. Cooper testified entirely about evidence he
found regarding an alleged accomplice. Randy explained that
he married Peggy Jones when Danny was eight years old, and
that much of his testimony was based on second hand conver-
sations with Peggy. Randy explained that Peggy gave birth to
Danny when she was only 15 years old and had numerous
complications during the pregnancy and delivery. Randy testi-
fied that Danny suffered multiple head injuries when he was
growing up, and that when Danny was 13 or 14 years old his
personality began to drastically change. Danny started lying,
cutting classes at school, drinking, and doing drugs. Danny’s
step-grandfather introduced him to marijuana when he was
around 10 years old, and he was an alcoholic by the time he
was 17.
The trial court appointed Dr. Jack Potts to examine Danny
and provide a report to the court. The defense lawyer called
Dr. Potts to testify at sentencing. Dr. Potts stated that in con-
ducting his review he spent four hours interviewing Danny in
prison, 1.5 of which were spent administering a personality
test. He also spoke to Danny for “a couple of hours” the day
before testifying. He interviewed Peggy by phone for 30 min-
utes, and he spoke to Randy for one hour the day before testi-
fying. During Dr. Potts’ testimony the following colloquy
took place:
Q. Do you feel you have been provided with ade-
quate data, coupled with your in-person exami-
nation of the defendant, to make a conclusion
for mitigating findings that you did?
A. . . . . I believe everything I reviewed and what
I have heard about the case and reviewed with
14128 JONES v. RYAN
the defendant, his comments to me. I would
have liked, and I think I have — I think it
would be valuable to have had some neurologic
evaluations, not — by a neurologist, clinical
exam, such as a CAT scan, possibly an MRI,
possibly EEG, possibly some sophisticated neu-
rological testing, because I think there’s very
strong evidence that we have . . . , I believe, of
traumatic brain injury, and there’s some other
evidence that I believe we may have organic
neurologic dysfunctions here that has gone on
since he’s been about 13. So, there’s some other
testing that I think would be valuable to have to
pin down the diagnosis . . . .
Q. And you think that further testing might shed
some additional light on, perhaps, some of these
factors you listed and maybe why Mr. Jones
behaves in the way he did on March 26, 1992?
A. Yes. I think it could help in clarifying and giv-
ing us etiology as the behavioral components,
the explosive outbursts, the aggression, the
mood changes, and the changes that occurred in
his personality as noted by his mother when he
was about 13, 14 years old.
Q. In your opinion, could that information possibly
provide . . . a significant mitigating factor as to
what would be relevant to the issues at this
hearing?
A. Clearly I think it would be corroborative of my
clinical impressions and my diagnostic impres-
sions in my report.
Dr. Potts discussed the fact that Danny’s first step-father
physically and verbally abused Danny, and stated that it was
JONES v. RYAN 14129
“unequivocal” that Danny carried that abuse with him into his
adult life. Dr. Potts also stated that given the long history of
substance abuse and other psychological problems in Danny’s
family, Danny was predisposed for substance abuse or a pos-
sible affective disorder. Dr. Potts did not, however, give a
specific diagnosis, but stated: “I think . . . to a reasonable
degree of medical certainty that the defendant suffers from a
psychothymic disorder, which is a mood disorder, possibly
organic syndrome, secondary to the multiple cerebral trauma
that he’s had as well as the prolonged substance abuse.”
Dr. Potts testified that the drugs and alcohol Danny had on
the day of the murders would have had a significant effect on
Danny because “it’s real clear that the brain is much more
susceptible when it’s been injured by drugs. Furthermore,
when you’re on drugs, you are more susceptible to the acts of
aggression under amphetamines.” He further stated: “I believe
in my experience in cases like this, is that had it not been for
the intoxication, the alleged offense would not have
occurred.”
Dr. Potts also submitted a six-page report to the court. The
report includes: approximately two pages describing Danny’s
social development and history, including his medical history,
one page of analysis, and one page of recommendations. Dr.
Potts concluded that “Mr. Jones’ capacity to conform his con-
duct to that of the law was clearly impaired at the time of the
offenses . . . .” He therefore recommended that an aggravated
sentence should not be imposed. After Dr. Potts testified, the
defense lawyer moved for a continuance so an expert could
conduct psychological testing. The defense lawyer stated:
“It’s not a delay tactic . . . [I]t’s not something I planned on
doing until . . . very recently after the report was done, after
talking with Dr. Potts, after exploring all these issues.” The
district judge considered and rejected the motion:
THE COURT: . . . . I also know that there were
funds made available to the defense
14130 JONES v. RYAN
at some point and you used them to
hire [an addictionologist] . . . . [I]f
there were any follow-up questions
of a psychological or neurological
nature, I would think that the
defense would have followed them
up.
COUNSEL: But, Your Honor, respectfully, . . . I
didn’t realize this issue was that
important until Dr. Potts brought it up
or I would have certainly asked for
the funds earlier.
The judge found the following aggravating factors for Wea-
ver’s murder: (1) Danny “committed the offense as consider-
ation for the receipt, or in expectation of the receipt of
anything of pecuniary value”; (2) Danny “committed the
offenses in an especially heinous or depraved manner”; and
(3) Danny was “convicted of one or more other homicides . . .
which were committed during the commission of the
offense.”
The judge found four non-statutory mitigating factors: (1)
Danny suffered from long-term substance abuse; (2) he was
under the influence of drugs and alcohol at the time of the
offense; (3) he had a chaotic and abusive childhood; and (4)
his longstanding substance abuse problem may have been
caused by genetic factors and aggravated by head trauma. The
judge found the same aggravating and mitigating circum-
stances for Tisha’s murder, but he also found that Tisha’s
having been under 15 years old was an additional aggravating
factor. The judge sentenced Danny to two death sentences for
the murders, and 25 years without the possibility of parole for
the attempted murder. The Arizona Supreme Court affirmed
Danny’s conviction and sentence on direct review. State v.
Jones, 917 P.2d 200 (Ariz. 1996).
JONES v. RYAN 14131
C
Two years later Danny filed a petition for state post-
conviction relief (“PCR”). His PCR judge was the Honorable
James Chavez, the same judge who had sentenced him to
death. Judge Chavez conducted a limited evidentiary hearing
to consider three ineffective assistance of counsel claims.
Danny presented testimony from Randy Jones, Peggy Jones,
and the defense lawyer at the hearing. Judge Chavez denied
each claim. He found that the defense lawyer was not ineffec-
tive because “[t]he report and testimony of Dr. Potts . . . ade-
quately addressed defendant’s mental health issues at
sentencing,” and “[t]estimony at the hearing showed that [the
defense lawyer] presented the available witnesses and evi-
dence to support mitigation. The additional witnesses and evi-
dence suggested by petitioner would have been redundant.”
Accordingly, Judge Chavez held “that the petitioner has not
met its [sic] burden of proof of showing deficient perfor-
mance by trial counsel.” The Arizona Supreme Court denied
review. State v. Jones, No. CR-00-0512-PC (Ariz. Sup. Ct.
Feb. 13, 2001).
D
Danny subsequently filed his federal petition for habeas
relief. The district court granted an evidentiary hearing with
regard to Claims 20(O), 20(P), and 20(T). Claim 20(O) is
based on the defense lawyer’s failure to secure the appoint-
ment of a mental health expert. Claim 20(P) is based on the
defense lawyer’s failure to move for neurological and neurop-
sychological testing. Claim 20(T) is based on the defense law-
yer’s failure to present additional mitigation witnesses and
evidence.
Dr. Potts testified first at the district court hearing. He
explained: “I was not an expert for either party. I was the
Court’s expert in looking at some issues. I was not — it was
clear I was not hired for mitigation, nor was I hired for aggra-
14132 JONES v. RYAN
vation.” When asked whether or not he had enough “points of
data” to pull from in reaching his conclusions, he stated:
[T]here’s a clear distinction between a mitigation
specialist, and I’m no mitigation specialist. I may be
a part of a team of mitigation, but I’m clearly not a
mitigation specialist in the realm of what is dealt
with now in capital cases. . . .
Mine was a cursory examination . . . . [I]nterviewing
one family member certainly is not adequate, I
believe, for what would be considered capital mitiga-
tion. It is below the standard of care.
He stated that, prior to his testimony at sentencing, he had
recommended to the defense lawyer there should be some
neuropsychological testing. During cross-examination, the
state tried to get Dr. Potts to admit that he only called for neu-
rological testing, not neuropsychological testing, but Dr. Potts
explained that “[s]ophisticated neurological testing would
include that.”
He described the reports submitted by the additional
experts at the habeas proceeding as the “documents I think
one would expect to see in mitigation . . . . I believe they’re
very, very helpful, and I think — I know I would have liked
to have had the exhaustive nature of these reports.” He stated
that he found his role constrained by his court-appointed sta-
tus, and therefore “did not make diagnoses,” because his “role
was not to make diagnoses . . . and that’s why I would not
have. I could have . . . but that was not the nature or tenor of
any of this report . . . .”
Danny’s defense lawyer testified that another lawyer in the
Public Defender’s Office was originally responsible for work-
ing on mitigation, and after she left he was assisted by an
investigator in his office. The assisting lawyer left the trial
team a few months before trial, and the defense lawyer
JONES v. RYAN 14133
decided that he “would actually be better off just finishing the
case [him]self,” rather than working with another attorney in
his office with whom he had personal conflicts. He stated that
while the Public Defender’s Office had some funds available
for experts, he was told that he should try and get funding
from the court instead. He therefore requested $5,000 from
Judge Chavez, and Judge Chavez gave him $2,000. He never
requested additional funding.
The defense lawyer testified that Dr. Potts “did not act as
a neutral, detached court-appointed expert. He actively
assisted us in developing mitigation, planning strategy to a
much larger degree than what he indicated.” The defense law-
yer explained that he had “numerous phone conversations”
with Dr. Potts, they met together the night before Dr. Potts
testified, and Dr. Potts “stressed to ask for the continuance for
the additional testing.”
He explained that it was not common practice in his county
to hire aggravation/mitigation specialists in capital cases, and
that he had no reason to think Randy had ever abused Danny.
Furthermore, since an addictionologist had testified about the
effects of amphetamines during the guilt phase of the trial, the
defense lawyer did not think there was any reason to have her
testify at the sentencing phase in front of the same judge.
Finally, he stated that he flew up to Reno, Nevada, to meet
with Peggy and Randy in October before the sentencing hear-
ing, and he spent three days there looking for background evi-
dence.
Dr. Pablo Stewart, Chief of Psychiatric Services at Haight
Ashbury Free Clinic in San Francisco, California, estimated
that he spent 130 hours working on Danny’s case. He diag-
nosed Danny with cognitive dysfunction, PTSD, polysub-
stance abuse, and mood disorder, not otherwise specified. He
ultimately concluded that “[t]he circumstances surrounding
Mr. Weaver’s death are a direct consequence of [Danny’s]
abused and unfortunate past.” He also found that Danny had
14134 JONES v. RYAN
suffered multiple serious head injuries over the course of his
life.3
Dr. Stewart discussed PTSD and explained that Danny suf-
fered numerous traumatic experiences early in his life: he
watched his first step-father hold a jigsaw to his mom’s neck
and threaten to kill her, he watched that same step-father
shoot a gun at his mom, and on two separate occasions Randy
pointed a gun to his own head and threatened to kill himself
in front of Danny. On cross-examination the state challenged
Dr. Stewart’s PTSD diagnosis because Dr. Stewart stated that
Danny “had PTSD at the time of the murders,” but he never
stated that Danny was having a flashback while committing
the crimes. Dr. Stewart explained that while the media tends
to show PTSD as being a person “who is thinking he’s being
ambushed and he takes people hostage,” that only occurs
“very, very rarely.”
The much more overwhelmingly more common
thing that occurs is a person having a short fuse; a
person overreacting to a situation; a person finding
themselves challenged by some things and then just
going off; a person — and that’s PTSD. A person
who drinks too much and then gets into fights, those
are the more common thing. But those don’t sell
movies or books.
But that’s the more common presentation. So that’s
why I’m saying in the case of Mr. Jones, it’s abso-
3
These injuries included: (1) Peggy finding Danny unconscious on the
side of his swing set when he was five years old; (2) falling off a roof and
hitting his head on a metal dolly causing five to ten minutes of uncon-
sciousness when he was 11; (3) falling off a second-floor scaffolding and
hitting his head when he was 15; (4) being involved in three car accidents
where he lost consciousness; and (5) a mugging while he was in the
Marines when he was found unconscious on the side of the road and taken
to the hospital—he was discharged with a diagnosis of head trauma, alco-
hol intoxication, and resolved apparent concussion.
JONES v. RYAN 14135
lutely clear that he suffers from PTSD, in my opin-
ion, and that he carries that with him throughout his
entire life. Certainly on the day of these murders,
that was going on.
Dr. Stewart also testified that Danny’s step-grandfather
forced Danny to drink alcohol when Danny was only nine
years old. He explained that it appears the grandfather used
the alcohol to get Danny drunk so it would be easier to sexu-
ally abuse Danny. Dr. Stewart described the sexual abuse “as
full contact sexual abuse, including sodomy, including oral
sex, both the providing it and receiving it.” Danny became a
daily marijuana user when he was in junior high, he used one
gram of cocaine every weekend in high school, and he used
LSD 200 times. Dr. Stewart explained that the substance
abuse appears to have stemmed from Danny’s genetic predis-
position, and also because Danny used drugs to self-medicate
to cope with his mental defects and past trauma.
Dr. Alan Goldberg, a psychologist in Arizona with a speci-
ality in neuropsychology, conducted a battery of tests that
covered multiple domains of cognitive functioning. Dr. Gold-
berg gave Danny approximately 25 tests and found that
“when we look at the patterns across many different kinds of
tests . . . we see a consistent inconsistency in performance,
that is, the performance is problematic on a number of tests
that all have an attention component to them.” He ultimately
diagnosed Danny with a learning disability, attention deficit
disorder, and Bipolar Disorder, Depressed.
Danny also submitted reports from additional experts,
including Dr. David Foy, a professor of psychology at Pep-
perdine University. Dr. Foy diagnosed Danny with PTSD,
polydrug abuse, depressive disorder, compromised cognitive
emotional functioning, and various learning deficits. Dr. Foy
described the numerous instances of life-threatening family
violence Danny witnessed growing up, and found that on at
least two occasions Danny used a baseball bat to protect him-
14136 JONES v. RYAN
self: (1) when Danny threatened to kill Danny’s first step-
father if he did not stop beating Danny’s mother, and (2) in
order to stop Danny’s step-grandfather from continuing to
sexually abuse him. Dr. Foy concluded that
[t]he constant threat of sudden verbal attacks or
severe physical punishment in Danny’s home envi-
ronment would be expected to produce an essential
state of wariness or hypervigilance . . . [and] would
be expected to lead to a heightened suspiciousness
and combat readiness as a systematic way of
responding, even in situations which later proved to
be non-life threatening.
Finally, Danny submitted a declaration from his younger
sister Carrie Haigney. She said that twice Danny watched
Randy point a gun at his own head and threaten to kill him-
self. She stated that contrary to Randy’s testimony during sen-
tencing, Randy was both verbally and physically abusive to
Danny, and that Danny threatened to kill Randy if he kept
beating Peggy. She also confirmed that Danny suffered
numerous head injuries while growing up.
Dr. John Scialli, a practicing psychiatrist in Arizona, was
Arizona’s primary expert witness.4 He spent approximately 46
hours working on Danny’s case, and diagnosed Danny with
alcohol dependence, amphetamine dependence, canabis
dependence, and AD/HD residual type at the time of the
offense. He disagreed with the other experts who diagnosed
Danny with a mood disorder, cognitive impairment or dys-
function, or PTSD.
4
Two other experts testified for Arizona in the district court. Dr. Steve
Herron, Danny’s treating psychiatrist for two years on Death Row, testi-
fied that Danny never showed any classic signs of PTSD over the years
they interacted. Dr. Anne Herring testified that Danny’s test scores show
that he is generally in the average range and do not support a diagnosis
that Danny has a cognitive disorder or attention deficit disorder.
JONES v. RYAN 14137
Dr. Scialli concluded that “there is no direct connection
made between PTSD and the offenses. Rather, the PTSD is
viewed as a primary mover of a series of life events with drug
abuse being the common thread.” Dr. Scialli did diagnosis
Danny with AD/HD residual type, but found that it had no
effect on the crime because there is no “link between someone
with an attention deficit disorder and violent behavior.” He
opined that Danny never suffered any serious head trauma
significant enough to cause lasting brain damage: while “[t]he
defendant may have had some concussions with brief periods
of unconsciousness,” “[t]here is not a strong history of lasting
brain damage.”
Dr. Scialli’s report and testimony also addressed Danny’s
ineffective assistance of counsel claims. He concluded that
none of the new evidence would have changed the sentencing
profile: “[t]he neuropsychological testing which has been
done since the sentencing does not provide any information in
addition to that to which Dr. Potts had testified.” He found
that “there is not evidence that there were any significant
mental conditions around the time of the crimes,” and that
none of the recent experts “were able to make a stronger con-
nection between Plaintiff’s mental condition and the crimes.”
He further found that any additional test results would not
have changed the sentencing result because “[t]heoretically if
some study had been done and had proved abnormal, it would
have been supportive of Dr. Potts’ findings. The Court, how-
ever, did not take issue with Dr. Potts’ findings.”
E
The district court dismissed each ineffective assistance of
counsel claim. The court denied Claim 20(O) because the
defense lawyer’s “failure to seek the appointment of a mental
health expert in a more timely manner did not prejudice Peti-
tioner.” The district court concluded that “the Court has not
been presented with evidence confirming that Petitioner suf-
fers from neurological damage caused by head trauma or
14138 JONES v. RYAN
other factors. Therefore, Dr. Potts’s finding at sentencing
remains the most persuasive statement in the record that neu-
rological damage constituted a mitigating factor.” The district
court dismissed Claim 20(P) after finding that Danny could
only prove that he suffered from AD/HD residual type and
possibly a low level mood disorder. The district court “con-
clud[ed] that the trial court would have assigned minimal sig-
nificance to testimony indicating that Petitioner suffered from
ADHD [sic] and a low-level mood disorder, and that this
weight would not have outbalanced the factors found in
aggravation.” Finally, the district court dismissed Claim 20(T)
after finding that Danny did not prove any significant mitigat-
ing evidence could have been presented through additional
witnesses at sentencing. The district court recognized that
new evidence of physical, emotional, and sexual abuse was
presented through the reports of various experts, but found
that even though the experts accepted that the abuse happened
in diagnosing PTSD, none of them could “extend their diag-
noses” and “establish a nexus between the abuse and the mur-
ders.”
[1] Danny timely appealed the district court’s denial of his
petition for a writ of habeas corpus. The Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), governs
Danny’s habeas petition. AEDPA requires federal courts to
show substantial deference to state court decisions. Federal
habeas relief is therefore only available if the state court’s
decision was “contrary to, or involved an unreasonable appli-
cation of, clearly established Federal law, as determined by
the Supreme Court,” 28 U.S.C. § 2254(d)(1), or “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.” Id. § 2254(d)(2). The Supreme Court need
not have addressed an identical fact pattern to qualify as
clearly established law, as “even a general standard may be
applied in an unreasonable manner.” Panetti v. Quarterman,
551 U.S. 930, 953 (2007). Our Circuit precedent “may be
‘persuasive authority’ on the question of whether a state
JONES v. RYAN 14139
court’s determination was an unreasonable application of the
Supreme Court’s precedent.” Mejia v. Garcia, 534 F.3d 1036,
1042 (9th Cir. 2008) (citations omitted). We review a district
court’s denial of a § 2254 habeas corpus petition de novo,
Bean v. Calderon, 163 F.3d 1073, 1077 (9th Cir. 1998), and
a district court’s findings of fact for clear error. Bonin v. Cal-
deron, 59 F.3d 815, 823 (9th Cir. 1995).
II
Danny alleges that his defense lawyer was ineffective at
sentencing by failing to: (1) secure the appointment of a men-
tal health expert; (2) timely move for neurological and
neuropsychological testing; and (3) present additional mitiga-
tion witnesses and evidence. We agree.
[2] In general, to prevail on an ineffective assistance of
counsel claim, a petitioner must show that: (1) his trial coun-
sel’s performance “fell below an objective standard of reason-
ableness”; and (2) “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceed-
ing would have been different.” Strickland v. Washington,
466 U.S. 668, 688, 694 (1984).
In order to satisfy the first prong and prove that counsel’s
performance was deficient, Danny must show “counsel made
errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Ainsworth v. Woodford, 268 F.3d 868, 873 (9th Cir. 2001)
(quoting Strickland, 466 U.S. at 687). Our scrutiny of coun-
sel’s performance is highly deferential, and we “must make
every effort ‘to eliminate the distorting effects of hindsight.’ ”
Id. (quoting Strickland, 466 U.S. at 689). Accordingly, we
“indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action ‘might be con-
sidered sound trial strategy.’ ” Strickland, 466 U.S. at 689
14140 JONES v. RYAN
(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
“[T]he prevailing legal norms at the time” govern our review.
Jennings v. Woodford, 290 F.3d 1006, 1015 (9th Cir. 2002).
[3] Under the prejudice prong, “[a] reasonable probability
is one ‘sufficient to undermine confidence in the outcome,’
but is ‘less than the preponderance more-likely-than-not stan-
dard.’ ” Lambright v. Schriro, 490 F.3d 1103, 1121 (9th Cir.
2007) (quoting Summerlin v. Schriro, 427 F.3d 623, 640, 643
(9th Cir. 2005) (en banc)). It is therefore “not necessary for
the habeas petitioner to demonstrate that the newly presented
mitigation evidence would necessarily overcome the aggra-
vating circumstances.” Id. (quotation marks and citation omit-
ted). Instead, “we reweigh the evidence in aggravation against
the totality of available mitigating evidence.” Wiggins v.
Smith, 539 U.S. 510, 534 (2003). The totality of available mit-
igating evidence includes evidence “both . . . adduced at trial,
and the evidence adduced in the habeas proceeding[s].” Wil-
liams v. Taylor, 529 U.S. 362, 397 (2000).
A
1
[4] We first consider Danny’s claims that his defense law-
yer was ineffective for failing to obtain partisan expert wit-
nesses and neuropsychological testing. The Supreme Court
has “declined to articulate specific guidelines for appropriate
attorney conduct and instead ha[s] emphasized that ‘[t]he
proper measure of attorney performance remains simply rea-
sonableness under prevailing professional norms.’ ” Wiggins,
539 U.S. at 521 (quoting Strickland, 466 U.S. at 688) (second
alteration in Wiggins). The Supreme Court has, however, con-
sistently relied upon relevant ABA Guidelines in effect at the
time of trial when reviewing attorney conduct and examining
reasonableness. See, e.g., Rompilla v. Beard, 545 U.S. 374,
387 (2005) (referencing ABA Guidelines when considering
ineffective assistance of counsel claim); Wiggins, 539 U.S. at
JONES v. RYAN 14141
524 (referring to ABA Guidelines as “well-defined norms,”
and “standards to which we long have referred as ‘guides to
determining what is reasonable’ ” (quoting Strickland, 466
U.S. at 688)); Williams, 529 U.S. at 396 (citing ABA Guide-
lines to find “that trial counsel did not fulfill their obligation
to conduct a thorough investigation of the defendant’s back-
ground”).
[5] The 1989 ABA Guidelines for the Appointment and
Performance of Counsel in Death Penalty Cases provides sev-
eral rules regarding expert witnesses. An attorney “should
secure the assistance of experts where it is necessary or appro-
priate for . . . presentation of mitigation. Experts assisting in
investigation and other preparation of the defense should be
independent and their work product should be confidential to
the extent allowed by law.” ABA Guidelines for the Appoint-
ment and Performance of Counsel in Death Penalty Cases
11.4.1(D)(7)(D) (1989) (“1989 Guidelines”). An attorney
should also consider using “[e]xpert witnesses to provide
medical, psychological, sociological, or other explanations for
the offense(s) for which the client is being sentenced, [and] to
give a favorable opinion as to the client’s capacity for rehabil-
itation.” Id. 11.8.3(F)(2). Finally, the 1989 Guidelines directs
an attorney to at least consider presenting evidence during the
sentencing phase regarding the defendant’s: (1) medical his-
tory, (2) educational history, (3) military service, (4) employ-
ment and training history, (5) family and social history, (6)
rehabilitative potential, (7) prior record, and (8) “[e]xpert tes-
timony concerning any of the above and the resulting impact
on the client, relating to the offense and to the client’s poten-
tial at the time of sentencing.” Id. 11.8.6(B)(1)-(8).
“[W]e have held that ‘to perform effectively . . . counsel
must conduct sufficient preparation to be able to present[ ]
and explain[ ] the significance of all the available [mitigating]
evidence.’ ” Belmontes v. Ayers, 529 F.3d 834, 857 (9th Cir.
2008) (quoting Allen v. Woodford, 395 F.3d 979, 1000 (9th
Cir. 2005)) (quotation marks omitted) (alterations in Bel-
14142 JONES v. RYAN
montes). Capital defense attorneys therefore have an obliga-
tion to conduct a thorough investigation, and a “duty to
investigate and present mitigating evidence of mental impair-
ment.” Bean, 163 F.3d at 1080. “This includes examination of
mental health records,” Summerlin, 427 F.3d at 630 (citation
omitted), and having “an affirmative duty to provide mental
health experts with information needed to develop an accurate
profile of the defendant’s mental health.” Caro v. Woodford,
280 F.3d 1247, 1254 (9th Cir. 2002) (citation omitted).
[6] The PCR court denied Danny’s ineffective assistance of
counsel claims regarding expert witnesses and testing after
concluding that “[t]he report and testimony of Dr. Potts who
was appointed by the Court, adequately addressed defendant’s
mental health issues at sentencing.” That conclusion was con-
trary to clearly established Supreme Court precedent. In Ake
v. Oklahoma, the Supreme Court recognized a defendant’s
right to have “access to a competent psychiatrist who will
conduct an appropriate examination and assist in evaluation,
preparation, and presentation of the defense.” 470 U.S. 68, 83
(1985). We later held that “under Ake, evaluation by a ‘neu-
tral’ court psychiatrist does not satisfy due process.” Smith v.
McCormick, 914 F.2d 1153, 1158 (9th Cir. 1990). “The right
to psychiatric assistance does not mean the right to place the
report of a ‘neutral’ psychiatrist before the court; rather it
means the right to use the services of a psychiatrist in what-
ever capacity defense counsel deems appropriate . . . .” Id. at
1157. In Lambright v. Schriro, we granted habeas relief and
held: “Counsel may not rely for the development and presen-
tation of mitigation evidence on the probation officer and a
court appointed psychologist. The responsibility to afford
effective representation is not delegable to parties who have
no obligation to protect or further the interests of the defen-
dant.” 490 F.3d at 1120-21 (emphasis added) (citation omit-
ted). As the Supreme Court explained in Ake, without the
assistance of a defense psychologist who can not only testify,
but prepare counsel for cross-examination of the State’s wit-
nesses, the risk of inaccurately resolving the mental health
JONES v. RYAN 14143
issues presented grows impermissibly high. Ake, 470 U.S. at
82-83.
[7] Here, the defense lawyer failed to follow the ABA
Guidelines, Supreme Court precedent, and Ninth Circuit law,
and relied solely on Dr. Potts, a court-appointed expert, to tes-
tify about Danny’s mental health at sentencing.5
[8] Notwithstanding the defense lawyer’s testimony that
Dr. Potts “did not act as a neutral, detached court-appointed
expert,” and “actively assisted in developing mitigation, plan-
ning strategy,” the district court’s conclusion that Dr. Potts
was a “de facto defense expert” was clearly erroneous. As a
court-appointed expert Dr. Potts’ findings were not confiden-
tial, he had “no obligation to protect or further the interests of
the defendant,” Lambright, 490 F.3d at 1121, and he did not
sufficiently “assist in evaluation, preparation, and presentation
of the defense.” Ake, 470 U.S. at 83. Dr. Potts stated repeat-
edly that he was a neutral expert and found his role limited as
such.
We need look no further than the defense lawyer’s treat-
ment of Dr. Potts to recognize that he was not prepared nor
thought of as a defense expert. As we have recognized, the
“duty to provide the appropriate experts with pertinent infor-
mation about the defendant is key to developing an effective
penalty phase presentation.” Caro, 280 F.3d at 1255 (citation
omitted). A review of Dr. Potts’ entire case file shows that
only 31 pages came from the defense lawyer. The defense
lawyer even admitted at the evidentiary hearing in the district
court that because Dr. Potts was a court-appointed expert, he
5
Addictionologist Lisa Sparks testified during the guilt phase, but she
only addressed the possible effects methamphetamine would have had on
Danny on the night of the murders. She did not discuss the possible life-
time effects of being a drug and alcohol abuser, and she did not discuss
the possible reasons Danny originally became addicted to drugs in the first
place.
14144 JONES v. RYAN
specifically chose not to send Dr. Potts all available mitiga-
tion evidence:
THE COURT: So before Dr. Potts issued his report
that turned out to be favorable to
you, would you necessarily have
provided all of the information you
had collected on Mr. Jones?
WITNESS: No, I would not, because it was —
after he got started, it was apparent
he wanted to help us. And at that
point, then, his role, I supposed,
changed. And then our relationship
was a little different.
Initially, I would screen what I sent
him, because I honestly didn’t know
what we were going to get from him.
Dr. Potts’ report was dated December 3, 1993, and the
defense lawyer did not get the report until two days before the
sentencing hearing started on December 8, 1993. Until at
most two days before the sentencing hearing, nobody consid-
ered Dr. Potts as a defense expert, and the defense lawyer had
only given Dr. Potts 31 pages to review. As we held in Bean
v. Calderon: “When experts request necessary information
and are denied it, when testing requested by expert witnesses
is not performed, and when experts are placed on the stand
with virtually no preparation or foundation, a capital defen-
dant has not received effective penalty phase assistance of
counsel.” 163 F.3d at 1079.
Arizona’s contention that Dr. Potts was a de facto partisan
defense witness stems from the defense lawyer’s testimony in
the district court that he had “numerous phone conversations”
with Dr. Potts and “met for at least two hours the night before
he testified in [Dr. Potts’] motel room to plan strategy, to go
JONES v. RYAN 14145
over things.” Dr. Potts on the other hand stated that he met
“[b]riefly” with the defense lawyer the night before the sen-
tencing hearing and ate lunch with the defense lawyer the day
he testified. The district court accepted Arizona’s argument
and found that “[the defense lawyer] worked closely with Dr.
Potts” and “Dr. Potts actively assisted [the defense lawyer] in
developing a case in mitigation.”
[9] Even taking the defense lawyer’s claims at face value,
however, a few phone calls and a two hour meeting the night
before trial, all after receiving Dr. Potts’ report two days
before the hearing, do not add up to “access to a competent
psychiatrist who will conduct an appropriate examination and
assist in evaluation, preparation, and presentation of the
defense.” Ake, 470 U.S. at 83; cf. Allen v. Woodford, 395 F.3d
979, 1002 (9th Cir. 2005) (finding deficient performance
when counsel spent only one week preparing for sentencing).
“[W]hen ‘tantalizing indications in the record’ suggest that
certain mitigating evidence may be available, those leads
must be pursued.” Lambright, 490 F.3d at 1117 (quoting
Stankewitz v. Woodford, 365 F.3d 706, 719-20 (9th Cir.
2004)). The defense lawyer was aware that Danny was using
methamphetamine, alcohol, and marijuana around the time of
the murders, yet he did not follow up on that information. He
had an addictionologist testify at trial about the effects those
drugs would have had on the night of the crime, but he did not
have her testify at sentencing and he never asked her about
the long term effects of a lifetime addicted to drugs. The
defense lawyer knew that Danny had a difficult birth, he knew
that Danny had been abused, he knew that Danny had suf-
fered multiple head injuries, and he knew that Danny had
been abusing alcohol and illegal drugs for over a decade. He
had also been specifically informed by Dr. Potts that he
should arrange neuropsychological testing. Yet given all that
information, the defense lawyer did not retain a partisan psy-
chiatric expert. He provided Dr. Potts 31 pages of documents
14146 JONES v. RYAN
to review, and he met with Dr. Potts for two hours the night
before Dr. Potts testified.
Even if Dr. Potts could be considered a de facto defense
expert with regard to the side he was most helpful, he was not
a defense expert with regard to the way he was treated, the
access he was given, the information he was provided, and the
way he was prepared. And when Dr. Potts recommended
additional testing, the defense lawyer ignored his advice until
after he testified. In considering a similar situation in Bean,
we concluded that the lawyer was constitutionally ineffective.
There, defense “counsel did not contact [the defense expert]
to prepare him for the penalty phase until a day or two before
his testimony, when he expended only one or two hours in
readying his testimony.” 163 F.3d at 1078. Here, the defense
lawyer met with Dr. Potts the night before Dr. Potts testified,
and they spent only two hours working on the testimony. We
should keep in mind that Dr. Potts had no obligation to
advance Danny’s best interests.
Perhaps most telling is the defense lawyer’s motion at capi-
tal sentencing for a continuance to investigate a mental health
mitigation defense. Although the defense lawyer had talked
with Dr. Potts by telephone on a few occasions and met with
him the night before capital sentencing, it was not until Dr.
Potts testified that defense counsel realized that he should
have requested neurologic testing.
[10] The PCR court’s finding that the defense lawyer was
not ineffective for failing to obtain a partisan mental health
expert and additional testing was directly contrary to the
Supreme Court’s opinion in Ake. Given Dr. Potts’ late
entrance into the game and court-appointed status, he could
not “conduct an appropriate examination and assist in evalua-
tion, preparation, and presentation of the defense.” Ake, 470
U.S. at 83. Furthermore, the ABA Guidelines, and our prece-
dent have both recognized the importance of partisan psychi-
atric experts and testing in capital proceedings. We conclude
JONES v. RYAN 14147
that the defense lawyer’s failure to obtain those critical ele-
ments of a capital defense was unreasonable under any read-
ing of Strickland.
2
[11] Establishing that defense counsel performed defi-
ciently, alone, does not entitle Danny to relief. He must also
show that he was prejudiced by that deficient performance.
Because the PCR court concluded that Danny had received
effective representation, it did not reach the question of preju-
dice. Therefore, in examining prejudice, “our review is not
circumscribed by a state court conclusion with respect to prej-
udice, as . . . the state court[ ] below [did not] reach[ ] this
prong of the Strickland analysis.” Wiggins, 539 U.S. at 534;
see also Rompilla, 545 U.S. at 390 (“Because the state courts
found the representation adequate, they never reached the
issue of prejudice, and so we examine this element of the Str-
ickland claim de novo . . . .” (citation omitted)).
The district court denied relief on Claims 20(O) and 20(P)
after concluding “that the new information” presented below
“is largely inconclusive or cumulative: it ‘barely . . . alter[s]
the sentencing profile presented to the sentencing judge’ ”
(quoting Strickland, 466 U.S. at 700). It denied Claim 20(O)
after finding that Danny would not have benefitted from hav-
ing a partisan expert because his witnesses at the evidentiary
hearing “have not established a more-persuasive case in miti-
gation than that presented through the report and testimony of
Dr. Potts.” In fact, it found that “Dr. Potts’s findings at sen-
tencing remains the most persuasive statement in the record
that neurological damage constituted a mitigating factor.” The
district court denied relief on Claim 20(P) because “the results
of the neuropsychological tests presented by the parties are
largely ambiguous and inconclusive. They do not demonstrate
that Petitioner suffered from cognitive impairment or PTSD
at the time of the murders.”
14148 JONES v. RYAN
It was improper for the district court to weigh the testimony
of the experts against each other in order to determine who
was the most credible and whether Danny presented “evi-
dence confirming that [he] suffers from neurological damage
caused by head trauma or other factors.” We have held that
a district court should not independently evaluate which
expert was most believable or try to find a definitive diagno-
sis:
The district court dismissed evidence of Correll’s
brain injury, concluding that any organic brain injury
played no role in Correll’s crimes. The district
court’s conclusion was based on the judge’s own
evaluation of two conflicting experts. But in the pro-
cedural context of this case, the district court’s role
was not to evaluate evidence in order to reach a con-
clusive opinion as to Correll’s brain injury (or lack
thereof). The district court should have decided only
whether there existed a “reasonable probability” that
“an objective fact-finder” in a state sentencing hear-
ing would have concluded, based on the evidence
presented, that Correll had a brain injury that
impaired his judgment at the time of the crimes.
Correll v. Ryan, 539 F.3d 938, 952 n.6 (9th Cir. 2008) (cita-
tion omitted); see also Summerlin, 427 F.3d at 643.
Danny presented experts at the evidentiary hearing who tes-
tified to his extensive history of physical, mental, and sexual
abuse, numerous head injuries resulting in unconsciousness,
and a lifetime of substance abuse. They diagnosed Danny
with PTSD, AD/HD, cognitive dysfunction, and an affective
mood disorder. Finally, they explained that his substance
addictions likely stemmed from a genetic predisposition and
his attempts to self-medicate.
Dr. Potts, conversely, was unable to make any specific
diagnoses. Instead, he could only make conditional findings,
JONES v. RYAN 14149
including: “strong evidence” of an underlying mood disorder,
“the likelihood that [Danny] suffers from a major mental ill-
ness,” and head injuries “which increase[ ] the potential for
neurologic sequelae contributing to his behavior.” He submit-
ted a six-page report to the court, which included an approxi-
mately one-page section on Danny’s “Social and
Developmental History.” Dr. Potts did not find that Danny
was ever sexually abused, and in fact the only physical abuse
mentioned in the report was that: “[Richard Elan] was also
physically and psychologically abusive to Danny,” and “the
defendant was reared in a chaotic and at times grossly hostile
environment where physical abuse was too prevalent.” Dr.
Potts then stated: “This new stepfather [Randy] was . . . cer-
tainly not physically abusive. Also, it is to be noted that dur-
ing the defendant’s childhood his maternal grandmother and
uncles and aunts were available and provided good support to
him.”
Dr. Potts’ entire report was only six pages long. Dr. Stew-
art, on the other hand submitted a 30-page declaration includ-
ing 15 pages devoted to Danny’s life history. We have
consistently held that merely skimming the surface on impor-
tant issues does not make in-depth discussion cumulative. In
Lambright, we found prejudice after the sentencing court
“was provided with some limited information about Lam-
bright’s mental health problems,” but “the information con-
tained in those reports was conclusory and based solely on
Lambright’s own accounts of his history.” 490 F.3d at 1125;
see also Correll, 539 F.3d at 953 n.8 (“While the bare facts
of Correll’s troubled past were indeed presented to the court,
without further investigation and presentation of contextual
evidence and argument, such facts served only to demonize
Correll rather than to mitigate the appropriateness of imposing
the death penalty for his actions.”); Bean, 163 F.3d at 1079
(finding prejudice when experts “gave newly definitive and
expansive opinions on Bean’s mental impairments, based on
the information about Bean’s social history and other recent
testing that was newly available to them”).
14150 JONES v. RYAN
The defense lawyer did present evidence to the court
regarding Danny’s drug induced impairment on the night of
the murders, but he did not take the next critical step: to
explain why Danny had pursued a life of substance abuse. Dr.
Potts briefly mentioned self-medication in his report and his
testimony. Dr. Stewart, however, testified extensively about
how Danny’s genetic predisposition, combined with his abu-
sive childhood, led him down the path of polysubstance
abuse:
And the other exceedingly important component
in his substance use history is the notion of self-
medication. Self-medication is an absolutely
accepted term in the field of mental health substance
abuse . . . .
And in the case of Mr. Jones, he . . . experienced
this horrific amount of trauma, PTSD, so his pre-
existing psychiatric disorder is posttraumatic stress
disorder, and then he is using substances. And I
remember seeing some reports and reading about
marijuana, and marijuana is a real clear self-
medicating drug for PTSD because of its antianxiety
properties. Same with alcohol . . . .
He also has been diagnosed and confirmed he was
suffering from AD/HD . . . . You can even use
methamphetamine to treat that.
And it’s very common that people with untreated
AD/HD will often self-medicate with a psycho stim-
ulant, like methamphetamine or cocaine, in part to
address the symptoms of their pre-existing condition.
...
....
It’s very clear in the field that untreated mental ill-
ness is a risk factor for substance abuse. Okay, self-
JONES v. RYAN 14151
medication, but that certainly was a big factor in this
particular case. Not in everyone’s, but in Mr. Jones’
particular case.
Furthermore, Dr. Stewart testified that Danny was first
introduced to alcohol and drugs when he was nine years old
by his step-grandfather so that his step-grandfather could
more easily sexually abuse him. In Lambright, we held there
was prejudice after finding that defense counsel failed to
explain that Lambright’s long dependency on drugs and alco-
hol stemmed from rampant abuse in his family, and he was
first exposed to drugs by his mother. Lambright, 490 F.3d at
1124. In Boyde v. California, the Supreme Court recognized
that “evidence about the defendant’s background and charac-
ter is relevant because of the belief, long held by this society,
that defendants who commit criminal acts that are attributable
to a disadvantaged background, or to emotional and mental
problems, may be less culpable than defendants who have no
such excuse.” 494 U.S. 370, 382 (1990) (emphasis, citation,
and quotation marks omitted). In Caro, we concluded that:
the evidence that was omitted is compelling. The
jury was not afforded the benefit of expert testimony
explaining the effects that Caro’s physiological
defects would have on his behavior, such as causing
him to have “impulse discontrol” and irrational
aggressiveness. By explaining that his behavior was
physically compelled, not premeditated, or even due
to a lack of emotional control, his moral culpability
would have been reduced.
280 F.3d at 1258.
Here, the sentencing judge knew that Danny was under the
influence of drugs at the time of the murders, and therefore he
knew that Danny’s judgment was impaired. However, the
judge did not know that Danny had been using drugs and
alcohol beginning when he was nine years old in order to
14152 JONES v. RYAN
cope with his mental illnesses and significant abuse. It is
much easier to discount the effects of substance abuse when
the facts which led to the abuse are unknown, but much less
so when we gain insight into the particular circumstances an
individual was facing when he began abusing drugs.
[12] “More than any other singular factor, mental defects
have been respected as a reason for leniency in our criminal
justice system.” Id. (citing William Blackstone, 4 Commen-
taries *24-25). The sentencing judge was given a short and
conditional report lacking any specific diagnoses. Conversely,
at the federal evidentiary hearing Danny presented the persua-
sive testimony of numerous experts that he suffered from seri-
ous mental defects, was viciously abused throughout his
childhood, and was driven to become a polysubstance abuser
in order to self-medicate for the trauma he experienced and
the defects he had.
[13] The district court’s conclusion that Danny did not suf-
fer prejudice because the neutral, court-appointed psycholo-
gist’s testimony was the most persuasive testimony presented
only highlights the greater potential for presenting effective
mitigation evidence from a psychologist appointed to assist
the defendant. Given the record, Danny has sufficiently
undermined our confidence in the capital sentencing decision
to establish Strickland prejudice.
B
1
[14] Danny next contends that the defense lawyer was inef-
fective by failing to conduct a reasonable mitigation investi-
gation and present sufficient witnesses and evidence at
sentencing. “The ABA Guidelines provide that investigations
into mitigating evidence ‘should comprise efforts to discover
all reasonably available mitigating evidence and evidence to
rebut any aggravating evidence that may be introduced by the
JONES v. RYAN 14153
prosecutor.’ ” Wiggins, 539 U.S. at 524 (quoting 1989 Guide-
lines 11.4.1.(C)). “Preparing for the penalty phase of a capital
trial is the equivalent of preparing for an entirely new trial,
and trial counsel must treat it as such.” Turner, 281 F.3d at
891. Accordingly, the “preparation for the sentencing phase,
in the form of investigation, should begin immediately upon
counsel’s entry into the case.” 1989 Guidelines 11.8.3(A); see
also id. 11.4.1(A). The defense lawyer failed to discover all
reasonably available evidence or conduct a reasonable investi-
gation. Accordingly, the PCR court’s decision was both con-
trary to clearly established federal law, and an unreasonable
application of the facts, when it concluded that “[t]estimony
at the hearing showed that [the defense lawyer] presented the
available witnesses and evidence to support mitigation. The
additional witnesses and evidence suggested by petitioner
would have been redundant.”
[15] The defense lawyer’s investigation and presentation of
mitigating evidence was woefully inadequate. He failed to
interview necessary witnesses and track down critical docu-
ments, and ended up presenting a false portrait to the sentenc-
ing judge that incorrectly showed Danny as having a much
nicer childhood than he had in fact. The defense lawyer never
even interviewed Danny’s sister, and described his investiga-
tion as follows:
In October of — of 1993, myself and [the investi-
gator] flew to Reno and spent three days up there
devoted to all this case, and we spent an evening
with Danny’s parents at their home. The rest of that
time we went around tracking down records. We
talked to at least one individual that remembered
Danny who had been a counselor up there, but he
was somebody that we didn’t feel would be a good
witness, either. But we did find some people like that
up there.
Danny was convicted in September 1993, so the defense
lawyer did not even go to interview Danny’s parents until one
14154 JONES v. RYAN
month after the trial and less than two months before sentenc-
ing. The failure to start the mitigation investigation until after
the guilt phase flies directly in the face of the 1989 Guide-
lines, which directs an attorney to start preparing for sentenc-
ing as soon as he starts working on the case.
In Correll, we held that counsel deficiently failed to inves-
tigate when he interviewed or tried to interview “forty or fifty
witnesses.” 539 F.3d at 944. Counsel there interviewed all
members of the defendant’s family who would cooperate,
including one meeting with “Correll’s father, sister, and
brother, ‘around the kitchen table at the same time,’ ” where
he spent “ ‘a couple hours’ with them.” Id. at 945. That defi-
cient investigation was significantly more thorough than the
defense lawyer’s investigation here.
Arizona contends that the defense lawyer cannot be faulted
for failing to discover Randy’s and Danny’s step-
grandfather’s abuse because Danny did not share that infor-
mation until ten years after the trial. However, even when a
defendant is “not forthcoming with useful information . . .
[that] does not excuse counsel’s obligation to obtain mitigat-
ing evidence from other sources.” Douglas v. Woodford, 316
F.3d 1079, 1088 (9th Cir. 2003) (citation omitted). We held
counsel’s performance deficient in Karis v. Calderon, when
he only spoke to the defendant’s mother, brother, and aunt.
283 F.3d 1117, 1136 (9th Cir. 2002). Those witnesses were
uncooperative and did not provide information about abuse,
but “[t]he fact that they did not offer this information regard-
ing the abuse did not excuse counsel from further investiga-
tion.” Id.
In this case, the defense lawyer cannot pin his failure to
uncover evidence on an uncooperative family, because he did
not even interview Danny’s sister, Carrie Haigney. As soon as
she was contacted she submitted a declaration to the district
court in which she explained that Randy: (1) on two occasions
held a gun to his head and threatened to kill himself, (2) was
JONES v. RYAN 14155
both physically and verbally abusive to Danny and Haigney,
and (3) abused their mother so severely that when Danny was
only seven or eight years old he threatened to kill Randy if
Randy did not stop abusing Peggy. When Randy was eventu-
ally confronted with Haigney’s declaration by Dr. Stewart,
“he clearly admitted . . . the physical abuse that was to his
wife and . . . to his Danny [sic] and his sister.” This informa-
tion was not hidden for ten years because the family was
uncooperative; it was hidden because the defense lawyer
never asked the question. While we do not require “defense
lawyers to scour the globe on the off chance something will
turn up,” Rompilla, 545 U.S. at 383, reasonable counsel may
only “draw a line when they have good reason to think further
investigation would be a waste.” Id.
“In assessing the reasonableness of an attorney’s investiga-
tion, . . . a court must consider not only the quantum of evi-
dence already known to counsel, but also whether the known
evidence would lead a reasonable attorney to investigate fur-
ther.” Wiggins, 539 U.S. at 527. The defense lawyer was
aware that Danny’s childhood abuse was perhaps the greatest
mitigating evidence available, and he therefore had no justifi-
able excuse not to interview Danny’s sister. Had the defense
lawyer taken that simple step he would have found evidence
that indicated his lead witness at sentencing, Randy Jones,
was an alleged child abuser who created a traumatic and dan-
gerous home. By delving into Randy’s abuse, the defense
lawyer could have discovered not only that Randy abused
Danny, but also that Danny used a baseball bat as a weapon
to protect his mother from beatings.
[16] The defense lawyer’s haphazard investigation also
failed to uncover two other critical pieces of information: (1)
that Danny attempted to commit suicide when he was 23 by
“cutting his wrists and cutting his chest . . . with a broken bot-
tle,” and (2) that Danny was “[s]ubjected to repeated episodes
of severe sexual abuse” by his step-grandfather. The sexual
14156 JONES v. RYAN
abuse “includ[ed] sodomy, includ[ed] oral sex, both the pro-
viding it and receiving it.”
[17] Rather than investigating for mitigation evidence
immediately and treating the sentencing phase as its own sep-
arate trial, the defense lawyer waited until after Danny was
convicted to even travel to Reno to interview Peggy, Randy,
and “at least one individual that remembered Danny.” Con-
trary to the PCR court’s ruling, the evidence did not show
“that [the defense lawyer] presented the available witnesses
and evidence to support mitigation.” The defense lawyer did
not discover that Danny was abused by Randy and his step-
grandfather, that Danny attempted to commit suicide, and that
Danny during his childhood defended himself and his mother
with baseball bats when placed in dangerous situations. While
we have recognized “it is imperative that all relevant mitigat-
ing information be unearthed for consideration at the capital
sentencing phase,” Summerlin, 427 F.3d at 630 (citation, quo-
tation marks, and alteration omitted), we would be hard-
pressed to find that the defense lawyer unearthed much more
than a scintilla of relevant mitigation evidence here. This fail-
ure to uncover evidence cannot be excused as reasonable per-
formance after conducting a thorough investigation. Rather, it
was an unreasonable investigation that fell below the level of
performance required by the Sixth Amendment.
2
The prejudice that stemmed from the defense lawyer’s defi-
cient investigation and presentation of evidence significantly
undermines our confidence in the sentence. The defense law-
yer’s failure to uncover evidence of Randy’s and Danny’s
step-grandfather’s abuse resulted in presenting a completely
inaccurate picture of Danny’s life to the court. As discussed
above, because the PCR court only made findings regarding
the Strickland deficiency prong, we consider the prejudice
prong de novo. See Rompilla, 545 U.S. at 390; Wiggins, 539
U.S. at 534.
JONES v. RYAN 14157
The only abuse described during the sentencing hearing
happened when Richard Elan was still married to Peggy and
Danny was less than six years old. In fact, Dr. Potts stated that
to his “recollection and knowledge [Danny] did not suffer
child abuse when he was with his [current] father, nor his
mother.” Therefore, while Dr. Potts and Randy did testify
about Danny’s difficulties as a very young child, the sentenc-
ing judge was left with the erroneous belief that Danny lived
in a loving and supportive home once Elan left. Evidence now
shows that nothing could be further from the truth.
Danny presented evidence to the district court that Randy
was an abusive step-father, that he held a gun to his head in
front of Danny at least twice and threatened to kill himself,
and that Danny threatened to kill Randy if Randy kept beating
Peggy. Experts testified that Danny’s step-grandfather started
sexually abusing Danny when Danny was nine years old, and
did not stop until Danny threatened him with a baseball bat
when Danny was thirteen years old. Danny also showed that
his step-grandfather provided him alcohol and marijuana
when he was nine years old.
The district court concluded that there was no prejudice in
the failure to present evidence of a lifetime of abuse at the
sentencing hearing because it found a “lack of a causal con-
nection between the crimes and the new allegations of abuse.”
That finding was clearly erroneous. First, Dr. Stewart testified
that “[t]he circumstances surrounding Mr. Weaver’s death are
a direct consequence of [Danny’s] abused and unfortunate
past.” Second, the Supreme Court has explicitly held that a
capital defendant need not show any causal connection with
the crime. Rather, the evidence need only be “of such a char-
acter that it might serve as a basis for a sentence less than
death.” Tennard v. Dretke, 542 U.S. 274, 287 (2004) (internal
quotation marks omitted) (quoting Skipper v. South Carolina,
476 U.S. 1, 5 (1986)). Precisely this type of evidence can
serve as a basis for a sentence less than death:
14158 JONES v. RYAN
Wiggins experienced severe privation and abuse in
the first six years of his life while in the custody of
his alcoholic, absentee mother. He suffered physical
torment, sexual molestation, and repeated rape dur-
ing his subsequent years in foster care . . . . Peti-
tioner thus has the kind of troubled history we have
declared relevant to assessing a defendant’s moral
culpability.
Wiggins, 539 U.S. at 535 (citations omitted).
The Wiggins Court ultimately granted relief after conclud-
ing: “Had the jury been able to place petitioner’s excruciating
life history on the mitigating side of the scale, there is a rea-
sonable probability that at least one juror would have struck
a different balance.” Id. at 537 (citations omitted).
[18] The decision of life or death was given to the sentenc-
ing judge with a false picture of Danny’s life. Judge Chavez
had no idea any physical abuse lasted past Danny’s sixth
birthday, and he had no idea that the tremendous abuse likely
played a key role in leading Danny down the path of polysub-
stance abuse that he ultimately traveled. “This evidence adds
up to a mitigation case that bears no relation to the few naked
pleas for mercy actually put before the jury . . . .” Rompilla,
545 U.S. at 393.6 “We have held . . . that a defendant was
prejudiced when, although counsel introduced some of the
defendant’s social history, he did so in a cursory manner that
was not particularly useful or compelling.” Stankewitz, 365
F.3d at 724 (citation and quotation marks omitted); see also
Bean, 163 F.3d at 1081 (“[T]he family portrait painted at the
federal habeas hearing was far different from the unfocused
snapshot handed the superior court jury.”). Here, as in
Stankewitz, “[a] more complete presentation, including even
6
“Although, for the purposes of resolving this issue, we evaluate preju-
dice in the context of judge-sentencing, the result is the same.” Summerlin,
427 F.3d at 643.
JONES v. RYAN 14159
a fraction of the details [Petitioner] now alleges, could have
made a difference.” 365 F.3d at 724.
C
[19] We have previously held that “prejudice may result
from the cumulative impact of multiple deficiencies.” Harris
ex rel. Ramseyer v. Wood, 64 F.3d 1432, 1438 (9th Cir. 1995)
(quotation marks omitted) (quoting Cooper v. Fitzharris, 586
F.2d 1325, 1333 (9th Cir. 1978) (en banc)). Therefore, while
we hold that the lack of neuropsychological testing, partisan
mental health experts, and the failure to accurately present
Danny’s life history each would be sufficient to undermine
confidence in the sentence on their own, in combination there
can be no question that the deficiencies were fatal.
III
[20] Because we conclude that Danny received ineffective
assistance of counsel warranting relief, we do not address the
remainder of his claims on appeal. We reverse and remand to
the district court with instructions to issue the writ of habeas
corpus.
REVERSED AND REMANDED.