Correll v. Schriro , 465 F.3d 1006 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL EMERSON CORRELL, 
Petitioner-Appellant,
No. 03-99006
v.
D.C. No.
CHARLES L. RYAN, Warden, Acting  CV-87-01471-PHX-
Director, Arizona Department of SMM
Corrections; DORA B. SCHRIRO,
OPINION
Director,
Respondents-Appellees.

Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, District Judge, Presiding
Argued and Submitted
September 26, 2005—San Francisco, California
Filed October 2, 2006
Before: Mary M. Schroeder, Chief Judge,
Diarmuid F. O’Scannlain and Sidney R. Thomas,
Circuit Judges.
Opinion by Judge Thomas;
Dissent by Judge O’Scannlain
17127
CORRELL v. RYAN 17131
COUNSEL
Thomas Phalen and Jon M. Sands, Phoenix, Arizona, for the
appellant.
James P. Beene, Kent E. Cattani, and Terry Goddard, Phoenix
Arizona, for the appellee.
OPINION
THOMAS, Circuit Judge:
Michael Emerson Correll, an Arizona inmate sentenced to
death, appeals the district court’s denial of his petition for a
writ of habeas corpus following our remand for an evidentiary
hearing. We reverse.
I
The factual history of this case was detailed in our earlier
opinion, Correll v. Stewart, 137 F.3d 1404, 1408-10 (9th Cir.
1998) (“Correll I”). Correll was convicted by an Arizona jury
in 1984 of first degree murder, attempted first degree murder,
kidnapping, armed robbery, and first degree burglary for his
role in a triple homicide. Id. at 1408. He was sentenced to
17132 CORRELL v. RYAN
death by the trial judge. Id. at 1410. His conviction was
upheld by the Arizona Supreme Court. State v. Correll, 715
P.2d 721 (Ariz. 1986). However, the Supreme Court modified
his death sentence as to one of the victims and invalidated one
aggravating factor. Id. at 730-31; 734-35.
In 1987, Correll timely filed a petition for post-conviction
relief pursuant to Arizona Rule of Criminal Procedure 32. In
this petition, Correll asserted multiple violations of his consti-
tutional rights, including his right to the effective assistance
of counsel during the guilt and penalty phases of his trial, his
right to confrontation, and his right to reliability in capital
sentencing. Correll later filed five supplements to his petition,
adducing evidence of his mental impairment and his attor-
ney’s ineffectiveness. The Arizona trial court summarily dis-
missed Correll’s petition and subsequently denied Correll’s
motion for rehearing. The Arizona Supreme Court denied
review without comment.
Correll subsequently filed a petition for writ of habeas cor-
pus in federal district court under 28 U.S.C. § 2254. Correll
alleged fifty-three constitutional violations at trial, at sentenc-
ing, and during the appellate process. The district court deter-
mined that twenty-six of Correll’s claims were procedurally
barred, then granted summary judgment against Correll on his
remaining constitutional claims.
On appeal, we affirmed all of the district court’s order
except as to Correll’s contention that he was entitled to an
evidentiary hearing on his claim of ineffective assistance of
counsel at sentencing. Correll I, 137 F.3d at 1420. We
remanded that issue to the district court with instructions to
hold an evidentiary hearing on the claim. Id.On remand, the district court conducted a nine day eviden-
tiary hearing. Applying the standards set forth in Strickland v.
Washington, 466 U.S. 668 (1984), and its progeny, the district
court concluded that the performance of Correll’s attorney at
CORRELL v. RYAN 17133
sentencing was deficient, but that Correll had suffered no
prejudice. Therefore, the district court granted judgment
against Correll on his federal habeas corpus petition. This
timely appeal followed.
Because Correll’s petition for a writ of habeas corpus was
filed before the effective date of the Antiterrorism and Effec-
tive Death Penalty Act of 1996, Pub. L. No. 104-132, 110
Stat. 1214 (“AEDPA”), pre-AEDPA law governs our consid-
eration of the merits of the claims. Lindh v. Murphy, 521 U.S.
320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1494 (9th
Cir. 1997) (en banc). Under pre-AEDPA law, we consider a
claim alleging ineffective assistance of counsel as a mixed
question of law and fact that we review de novo. Rios v.
Rocha, 299 F.3d 796, 799 n.4 (9th Cir. 2002). We review the
district court’s denial of Correll’s habeas petition de novo and
the district court’s factual findings for clear error. Id.II
[1] As the Supreme Court has long instructed, the Sixth
Amendment right to counsel in a criminal trial includes “the
right to the effective assistance of counsel.” McMann v. Rich-
ardson, 397 U.S. 759, 771 n.14 (1970). This right extends to
“all critical stages of the criminal process,” Iowa v. Tovar,
541 U.S. 77, 80-81 (2004), including capital sentencing, Silva
v. Woodford, 279 F.3d 825, 836 (9th Cir. 2002). “Because of
the potential consequences of deficient performance during
capital sentencing, we must be sure not to apply a more
lenient standard of performance to the sentencing phase than
we apply to the guilt phase of trial.” Mak v. Blodgett, 970
F.2d 614, 619 (9th Cir. 1992).
Under the familiar Strickland standard, to prevail on his
claim of ineffective assistance of counsel during the penalty
phase of his trial, Correll must demonstrate first that the per-
formance of his counsel fell below an objective standard of
reasonableness at sentencing, and second, that “there is a rea-
17134 CORRELL v. RYAN
sonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been differ-
ent.” 466 U.S. at 694. Under Strickland, we measure an attor-
ney’s performance against an “objective standard of
reasonableness,” measured “under prevailing professional
norms.” Id. at 688.
There are two aspects of Correll’s penalty phase defense at
issue on this appeal: the investigation of possible defenses,
and the presentation of the penalty phase defense.
A
[2] Counsel has a duty at penalty phase “to conduct a thor-
ough investigation of the defendant’s background.” Landri-
gan v. Schriro, 441 F.3d 638, 643 (9th Cir. 2006) (en banc)
(citing Williams v. Taylor, 529 U.S. 362, 396 (2000)). “To
perform effectively in the penalty phase of a capital case,
counsel must conduct sufficient investigation and engage in
sufficient preparation to be able to ‘present[ ] and explain[ ]
the significance of all the available [mitigating] evidence.’ ”
Mayfield v. Woodford, 270 F.3d 915, 927 (9th Cir. 2001) (en
banc) (quoting Williams, 529 U.S. at 399) (alterations in origi-
nal). When it comes to the penalty phase of a capital trial, “[i]t
is imperative that all relevant mitigating information be
unearthed for consideration.” Caro v. Calderon, 165 F.3d
1223, 1227 (9th Cir. 1999), as amended.
The ABA Standards for Criminal Justice provide guidance
as to the obligations of criminal defense attorneys in conduct-
ing an investigation. Rompilla v. Beard, 545 U.S. 374, __, 125
S.Ct. 2456, 2466 (2005); Williams, 529 U.S. at 396. The stan-
dards in effect at the time of Correll’s capital trial clearly
described the criminal defense lawyer’s duty to investigate,
providing specifically that:
It is the duty of the lawyer to conduct a prompt
investigation of the circumstances of the case and to
CORRELL v. RYAN 17135
explore all avenues leading to facts relevant to the
merits of the case and the penalty in the event of
conviction. The investigation should always include
efforts to secure information in the possession of the
prosecution and law enforcement authorities. The
duty to investigate exists regardless of the accused’s
admissions or statements to the lawyer of facts con-
stituting guilt or the accused’s stated desire to plead
guilty.
ABA Standards for Criminal Justice 4-4.1 (2d ed. 1982
Supp.).
It is undisputed in this case that Correll’s attorney did little
investigation of potential mitigating evidence for presentation
at the penalty phase, although “[a]dequate consultation
between attorney and client is an essential element of compe-
tent representation of a criminal defendant.” United States v.
Tucker, 716 F.2d 576, 581 (9th Cir. 1983) (citation omitted).
Correll alleges that defense counsel only met with him once,
for five minutes between the trial and penalty phase. Correll
I, 137 F.3d at 1412. Defense counsel testified at the evidenti-
ary hearing that he met with Correll more than one time; how-
ever, it is apparent from the record that the consultation was
not extensive.
[3] Penalty phase investigations in capital cases should
include inquiries into social background and evidence of fam-
ily abuse, potential mental impairment, physical health his-
tory, and history of drug and alcohol abuse. Summerlin v.
Schriro, 427 F.3d 623, 630 (9th Cir. 2005) (en banc). An
investigation should include examination of mental and physi-
cal health records, school records, and criminal records. Id.“Defense counsel should also personally review all evidence
that the prosecution plans to introduce in the penalty phase
proceedings, including the records pertaining to criminal his-
tory and prior convictions.” Id. (citing Rompilla, 125 S.Ct. at
2465).
17136 CORRELL v. RYAN
[4] Although he was aware that potential mitigating evi-
dence existed, defense counsel did not explore any avenues
that might lead to development of evidence. Indeed, in light
of the abundance of classic mitigation evidence of which
counsel was aware, his almost complete failure to investigate
is startling. His attorney knew that, among other things, Cor-
rell came from a dysfunctional family, sustained a serious
head injury, was committed to various psychiatric facilities,
and that he was addicted to drugs; yet defense counsel did not
obtain the records nor did he interview witnesses concerning
these matters. Counsel did meet with the family members who
would cooperate, but he admitted that he met only once with
Correll’s father, sister, and brother, “around the kitchen table
at the same time,” and probably spent “[a] couple hours” with
them. Counsel did not obtain Correll’s school records,
although he admitted that they may have contained mitigating
evidence. He failed to obtain police reports on prior convic-
tions and records regarding the time when Correll was in the
custody of the California Youth Authority. Counsel did not
obtain Correll’s medical records and made no inquiry about
whether an X-ray or other diagnostic test was performed to
determine whether Correll suffered any brain injury following
an incident in which a wall fell on Correll’s head.
During the evidentiary hearing, counsel could not recall
what efforts he made to gather Correll’s psychiatric records,
although defense counsel did remember that he did not obtain
records from Correll’s stays at various mental health centers.1
Defense counsel testified that the principal mitigation evi-
dence he sought was information that would show Correll as
a “good person” and one who had “done good deeds.” But
even this limited investigation was unreasonably narrow.2 For
1
As the district court found, some of these records were destroyed
between the time of the trial and the time of the habeas investigation.
2
Further, such a limitation on the scope of the mitigation investigation
was unreasonable given that it was unlikely that the testimony would have
CORRELL v. RYAN 17137
example, Reverend Curry, a chaplain with the California
Youth Authority, was willing to testify on Correll’s behalf
and assist in anyway he could; indeed his wife told defense
counsel to contact the Reverend. No contact was ever made.
Yet, Curry testified that he would have testified if contacted.3
[5] Based on the foregoing, the district court was correct to
conclude that defense counsel provided deficient representa-
tion when he failed to seek and obtain documents relating to
Correll’s mental health and medical conditions. Defense
counsel’s failure to investigate falls far short of any objec-
tively reasonable standard against which we might measure
attorney performance under the standards of the Sixth
Amendment.
B
“There is no more important hearing in law or equity than
the penalty phase of a capital trial.” Gerlaugh v. Stewart, 129
F.3d 1027, 1050 (9th Cir. 1997) (Reinhardt, J., concurring and
dissenting). At the penalty phase, a capital defendant has a
“constitutionally protected right [ ] to provide the jury with
. . . mitigating evidence.” Williams, 529 U.S. at 393. “Failure
to present mitigating evidence at the penalty phase of a capital
case constitutes ineffective assistance of counsel.” Bean v.
Calderon, 163 F.3d 1073, 1079 (9th Cir. 1998).
been sufficient to “humanize[ ] him during the time frame of the murder
conspiracy at issue.” Allen v. Woodford, 366 F.3d 823, 851 (9th Cir.
2004). Rather, the most likely type of evidence available was the type that
portrays defendant as a “person whose moral sense was warped by abuse,
drugs, [or] mental incapacity.” Id.3
Rev. Curry was asked specifically at the evidentiary hearing “if Mr.
Collins had succeeded in getting ahold of you, would you have come to
testify on Mike Correll’s behalf?” He responded “Yes, sir, I would have.”
Later in the hearing, the question was posed again, “Had you been asked
by Steve Collins, you would have unhesitatingly come to help Mike at his
capital sentencing, would you not?” Rev. Curry answered, “Yes, sir.”
17138 CORRELL v. RYAN
[6] As anemic as the defense counsel’s investigation was,
his presentation of mitigating evidence at the penalty phase
was worse. Defense counsel put on no affirmative penalty
phase defense whatsoever. He did not call a single witness to
testify. He did not introduce any evidence. Rather, he elected
to allow the judge to make a decision on whether to sentence
Correll to death based solely on the state’s evidence and the
pre-sentence report.
[7] This was a critical error. “The failure to present mitigat-
ing evidence during the penalty phase of a capital case, where
there are no tactical considerations involved, constitutes defi-
cient performance, since competent counsel would have made
an effective case for mitigation.” Smith v. Stewart, 189 F.3d
1004, 1008-09 (9th Cir. 1999).
[8] The magnitude of this error becomes apparent when we
consider the effect of the error under Arizona law. At the time
of the penalty phase proceedings, Arizona law mandated the
death penalty when the defendant had a qualifying prior con-
viction if there was no mitigating evidence. Ariz. Rev. Stat.
§ 13-703 (1984). One of the aggravating circumstances found
by the sentencing judge was a previous violent felony. State
v. Correll, 715 P.2d at 731. Thus, the failure to present any
evidence in mitigation “all but assured the imposition of a
death sentence under Arizona law.” Summerlin, 427 F.3d at
640; see also Evans v. Lewis, 855 F.2d 631, 637 (9th Cir.
1988) (noting that in Arizona, once an aggravating circum-
stance like a prior aggravated felony was found, death was
inevitable without mitigating evidence, and thus holding that
the failure to pursue psychiatric evidence constituted prejudi-
cially deficient performance).
In this case, the State argued five aggravating factors. Cor-
rell’s defense counsel disputed only a few of them. He dis-
puted that the crimes were cruel, heinous, and depraved, and
he argued that convictions for more than one homicide could
not be used as an aggravating factor because the statute autho-
CORRELL v. RYAN 17139
rizing this factor was not in effect on the offense date. At the
evidentiary hearing in this case, he conceded that he thought
“it was a veritable certainty” that the court would find “at
least two, and probably all five of [the] aggravating factors.”
The court found four aggravating factors.
Defense counsel’s entire mitigation argument was con-
tained in less than one page of a sentencing memorandum,
which is reproduced in toto here:
A. Defendant was under the influence of alcohol
and drugs at the time the offenses were commit-
ted. Guy Snelling stated in an interview with
police officers on April 12, that there was alco-
hol on the breath of Defendant at the time the
offenses were committed. It is obvious from
this and the conduct of the perpetrators, that
they were under the influence of alcohol or
drugs or both at the time the offenses were com-
mitted.
B. Defendant was only a follower in the commis-
sion of the crimes. Guy Snelling stated in an
interview with defense counsel on August 14,
1984, that it was clear that John Nabors was the
leader of the two perpetrators and was making
the decisions. This is further corroborated by
the fact that it was John Nabors who knew Guy
Snelling would have illicit drugs and money and
therefore, John Nabors must have done the
planning of the robbery.
C. Prior to the robbery, there was no reason to
believe that anyone would be present other than
Guy Snelling, and therefore, there was no prior
plan to kill Debra Rosen, Robin Cady or Shawn
D’Brito.
17140 CORRELL v. RYAN
D. Defendant has cooperated with the Adult Proba-
tion Office in the preparation of his presentence
report.
E. Defendant’s age.
That, in total, was defense counsel’s mitigation case. When
asked at the evidentiary hearing “what was your sentencing
strategy,” trial counsel responded that it was basically, “hop-
ing that Judge Howe liked Mr. Correll,” that “it was a drug
ripoff that went bad and that Michael was under the influ-
ence,” and that “he wasn’t the leader in the crimes.”
Defense counsel did not put on any witnesses or evidence
to support his mitigation case.4 His sentencing memo does not
even attempt to rebut three of the five aggravating factors
urged by the State. In his oral presentation at sentencing,
counsel mentioned the aggravating factors, but in form only,
without any substantial legal position or evidentiary support.
The entirety of his oral argument at the penalty phase consists
of approximately 7 pages of transcript. The state trial court
record states that “Defendant waives presentation of mitigat-
ing evidence.”
[9] Given his virtual concession of most of the aggravating
factors argued by the State, and waiver of the presentation of
mitigation evidence, the outcome was obvious: imposition of
the death penalty. The Arizona Supreme Court, in re-
weighing the aggravating and mitigating factors, found no
mitigating factors “sufficiently substantial to call for lenien-
cy.” State v. Correll, 715 P.2d at 735. The Court highlighted
4
As opposed to the dissent’s characterization of counsel “repeatedly
dr[awing] the sentencing judge’s attention” to the likelihood that Correll
was under the influence of drugs and alcohol at the time of the crime,
there is but a single mention of drugs and alcohol in the brief sentencing
memorandum and a single reiteration of that point at the sentencing hear-
ing.
CORRELL v. RYAN 17141
the lack of evidence presented in mitigation and noted that the
“defendant has offered no evidence or expert testimony on
which we could base a finding that he was unable to appreci-
ate the wrongfulness of his conduct.” Id. The Court was par-
ticularly dismissive of his attempt to count cooperation in the
pre-sentence investigation as a mitigating factor, noting “[i]t
is in defendant’s interest to cooperate at sentencing; defendant
should not be rewarded for self-serving acts.” Id.As Correll demonstrated at his evidentiary hearing, there
was a substantial amount of mitigation evidence available for
presentation at the penalty phase. Correll had endured an abu-
sive childhood. His mother was a Jehovah’s Witness, whose
commitment to her church came before her commitment to
her family. She spent most of her time with the church, often
neglecting her six children’s basic needs. The children were
required to attend adult bible study class with her three nights
a week, for three hours per night. If they misbehaved or indi-
cated that they were confused or did not understand the reli-
gious doctrine, they were punished. Correll’s father was
largely absent but sometimes aided his wife in physically pun-
ishing their children. There was evidence of incest in the fam-
ily.
When Correl was seven, a brick wall collapsed on his head.
Although he was unconscious for some time after the acci-
dent, his parents did not seek medical treatment until several
days later when he was still not back to normal. Several
experts testified that this type of accident and the symptoms
Correll exhibited then and now indicate a high likelihood of
brain impairment.
Against this backdrop, Correll began experimenting with
alcohol and drugs around age ten. He was using marijuana,
LSD, and amphetamines regularly by age twelve, behavior
that can be characterized as self-medication for the everyday
trauma of his life, and the mental health diagnoses he later
received when he became a ward of the state.
17142 CORRELL v. RYAN
It is notable that each of the six Correll children report that
they had or have had substance abuse problems beginning in
childhood or adolescence. Further, at least five of the six chil-
dren spent time in juvenile correctional facilities, and all four
of the boys in the family have spent time in adult correctional
facilities.
In response to Correll’s obvious substance abuse problems,
his parents intervened with beatings and threats of kicking
him out of the house. Further, the state failed to recommend
drug or alcohol treatment despite Correll’s frequent contact
with the juvenile authorities.
After Correll was shot in the arm at age 14, the hospital
asked his parents to let him come home. They allowed him to
recuperate at home for three or four days before asking the
state to sever their parental rights. At that time, they cut off
all communication with their son and considered him dead as
required by their church’s teachings.
Correll became a ward of the state at age 14 and spent his
teenage years in various state institutions described as “gladi-
ator schools,” which were characterized as cruel and inhu-
mane, even by those who worked there. He was placed in
programs for low-performing students, which were referenced
as “dummy shacks.” Within months of becoming a ward of
the state, 14 year-old Correll became addicted to heroin.
Correll was committed to psychiatric institutions at least
twice during his teen years and was described at age 16 as
“severely psychologically impaired.” He was treated with a
tranquilizer/anti-psychotic drug while institutionalized, and
attempted suicide on two occasions. However, there is no evi-
dence that Correll continued to receive treatment after these
stays.
Methamphetamine eventually became Correll’s drug of
choice, which he used whenever he could. Correll offered
CORRELL v. RYAN 17143
expert testimony during the evidentiary hearing of the effect
of high methamphetamine use, including brain damage,
blackouts, and methamphetamine-induced psychosis, all of
which may be compounded by sleep deprivation.
At the time of the murders, Correll was injecting a quarter
gram to a gram of methamphetamine in one shot, and inject-
ing three to four shots a day. According to expert testimony
at the evidentiary hearing, Correll was in the top 1% of
methamphetamine users in terms of quantity. During the
period of time in which the crimes were committed, Correll’s
typical pattern was to go seven to ten days without sleep, fol-
lowed by one to two days of continuous sleep. He was
observed injecting methamphetamine shortly before the
crimes were committed. Expert testimony indicated that he
was likely having impulse control problems, judgment impair-
ment, and aggressiveness at the time of the crime, and may
have been experiencing drug-induced paranoia.
[10] In sum, there was a substantial amount of mitigating
evidence available5 that is clearly sufficient to establish preju-
dice under the Supreme Court’s standard in Wiggins, 539 U.S.
at 534-38. Counsel’s failure to present a mitigation case con-
stitutes constitutionally ineffective assistance of counsel.
C
The State contends that the failure to put on penalty phase
evidence was a strategic choice, protected under Strickland.
To be sure, under Strickland, we must defer to trial counsel’s
strategic decisions. “A reasonable tactical choice based on an
5
The government argues that much of this evidence was already before
the sentencing court in the pre-sentence report. 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 appropri-
ateness of imposing the death penalty for his actions.
17144 CORRELL v. RYAN
adequate inquiry is immune from attack under Strickland.”
Gerlaugh, 129 F.3d at 1033. However, to be considered a
constitutionally adequate strategic choice, the decision must
have been made after counsel has conducted “reasonable
investigations or [made] a reasonable decision that makes par-
ticular investigations unnecessary.” Strickland, 466 U.S. at
691. In addition, “[e]ven if [a] decision could be considered
one of strategy, that does not render it immune from attack—
it must be a reasonable strategy.” Jones v. Wood, 114 F.3d
1002, 1010 (9th Cir. 1997) (emphasis in original). Defense
counsel both failed to investigate potential mitigation evi-
dence sufficiently to make an informed strategic decision and,
when considered objectively, his strategy cannot be consid-
ered reasonable.
1
[11] A decision by counsel not to present mitigating evi-
dence cannot be excused as a strategic decision unless it is
supported by reasonable investigations. See Williams, 529
U.S. at 394 (recognizing a constitutional right to present miti-
gating evidence to the jury); Silva, 279 F.3d at 843 (recogniz-
ing “the breadth of a criminal defendant’s constitutional
protection against his attorney’s failure to investigate mitigat-
ing evidence when defending his client against a capital sen-
tence”). In Wiggins, the Supreme Court held that the
traditional deference owed to the strategic judgments of coun-
sel is not justified where there was not an adequate investiga-
tion “supporting those judgments.” 539 U.S. at 521.
Here, as we have discussed, defense counsel failed to make
a reasonable investigation into potential mitigating evidence.
Therefore, his decision not to put on a mitigation case cannot
be considered to be the product of a strategic choice. An unin-
formed strategy is not a reasoned strategy. It is, in fact, no
strategy at all. Cf. Strickland, 466 U.S. at 690-91 (holding that
“strategic choices made after less than complete investigation
CORRELL v. RYAN 17145
are reasonable precisely to the extent that reasonable profes-
sional judgments support the limitations on investigation”).
In Silva, for example, we held that in the absence of dili-
gent investigation, counsel cannot make a reasoned tactical
decision regarding whether or not to present mitigating evi-
dence. 279 F.3d 846-47. Indeed, we determined that even if
a client forecloses certain types of mitigation evidence, “it
arguably becomes even more incumbent upon trial counsel to
seek out and find alternative sources of [mitigating evi-
dence].” Id.[12] Here, an abundance of classic mitigation evidence
existed. However, counsel failed to investigate these potential
avenues, and was therefore unable to make an informed deci-
sion as to whether to present the evidence. His choice not to
present mitigation evidence, therefore, cannot be justified as
strategic.
2
To the extent there was any strategy involved in the penalty
phase presentation, it cannot be considered a reasonable strat-
egy by any objective measure.
Defense counsel chose to rely on the pre-sentence report
prepared by a state probation officer, despite characterizing it
as “one-sided.” During his short sentencing argument, defense
counsel criticized the author of the pre-sentence report for not
talking to several people who could have provided mitigating
statements. The irony, of course, is that defense counsel could
have put into evidence during the penalty phase the very miti-
gating evidence that he felt was important for the probation
officer to hear.
The report described the crimes as “particularly heinous”
and speculated that “the murder scene in the desert must have
been particularly gruesome.” The probation officer concluded
17146 CORRELL v. RYAN
that, given the circumstances of the crime, “[t]hey obviously
planned the murders ahead of time and then calculatingly and
unemotionally carried out their plans.” The pre-sentence
report described Correll’s history as “a text book of psychopa-
thology,” and “riddled with instances of violent behavior and
armed aggression.” The probation officer determined that
Correll “was not capable of functioning in society.” The
report concluded with the observation that “[h]e is a threat, a
menace, and in my opinion, the community at large should
never again be subjected to the risk of recurrence of this type
of behavior.” These statements are hardly the words of miti-
gation, and no competent capital defense counsel would have
relied upon the report as providing mitigation evidence, much
less the sole source of mitigation evidence.
[13] Defense counsel testified at the evidentiary hearing
that he “was basically hoping [the judge] would think it was
a one-time incident and want to give Mr. Correll a break and
find a mitigating factor.” However, the pre-sentence report
contained explicit references to an extensive criminal history
that belied this theory. Indeed, the page and a half of criminal
convictions reported is longer than defense counsel’s entire
mitigation presentation in his sentencing memorandum. It was
not a reasonable strategy to rely on the pre-sentence report to
prove that the crime was a “one-time incident,” when the
entire report drew the opposite conclusion. Further, when
examined at the evidentiary hearing, defense counsel was
forced to admit that portraying the crime as a one-time drug
ripoff gone bad was not something that would constitute a
mitigating factor.
During the evidentiary hearing, defense counsel revealed a
fundamental misconception of mitigation evidence. He
referred to the sentencing hearing as “a dog and pony show”
and “so much smoke.” He said he felt that the judge would
not have been receptive to mitigation evidence that was
“touchy-feelly [sic] fuzzy-headed kind of stuff.” When asked
about the classic mitigation evidence, such as potential brain
CORRELL v. RYAN 17147
injury,6 a history of drug addiction, and abuse suffered as a
child, he testified that he didn’t think of the evidence as favor-
able evidence. However, it is precisely this type of evidence
that the Supreme Court has termed as “powerful.” Wiggins,
539 U.S. at 534.
It appears clear from examination of his testimony that
defense counsel was afraid of the sentencing judge. In fact, he
forewent psychological testing because he felt that the judge
would learn of it, and testified that he might have presented
evidence of Correll’s history of drug addiction had he been
before a different judge.7 He believed that the judge would
use mitigating evidence as an aggravating factor, in violation
of the mandatory language of Ariz. Rev. Stat. § 13-703(E).
However, this presumes that the judge would not follow the
law—speculation that is not supported by the record.
Fear of a particular sentencing judge’s reaction also ignores
the fact that, in capital cases, the Arizona Supreme Court con-
6
As the district court noted, the Arizona Courts place significant weight
on brain injuries as mitigating evidence. Similarly, “[w]e have repeatedly
held that counsel may render ineffective assistance if he is on notice that
his client may be mentally impaired, yet fails to investigate his client’s
mental condition as a mitigating factor in a penalty phase hearing.” Caro
v. Woodford, 280 F.3d 1247, 1254 (9th Cir. 2002) (internal quotations
omitted).
7
The dissent characterizes this decision not to present psychological evi-
dence as strategic because it would “make it easier for the judge to sen-
tence Correll to death because it would cause him to view Correll as
permanently damaged psychologically.” However, counsel’s failure to
investigate Correll’s psychological history for fear of the trial judge cannot
be termed “strategic.” Counsel worried that the trial judge would presume
that any psychological evaluation portrayed Correll in a negative light if
he granted a contact visit order for such an evaluation and the results were
never submitted to the court. This fear presumes that the trial judge would
act inappropriately by considering evidence outside of the record in mak-
ing his sentencing decision and fails to recognize the importance of creat-
ing a record for review, even if the trial judge likely would be
unsympathetic. Psychological injury is the type of evidence the Supreme
Court has viewed as classic mitigating evidence. Wiggins, 539 U.S. at 534.
17148 CORRELL v. RYAN
ducts an independent review of the aggravating and mitigating
factors and re-weighs them. See State v. Johnson, 710 P.2d
1050, 1055 (Ariz. 1985) (“Whenever the trial court imposes
the death sentence we must conduct an independent review of
the facts that established the aggravating and mitigating cir-
cumstances in order to determine for ourselves if the latter
outweigh the former and justify the sentence.”); see also State
v. Richmond, 560 P.2d 41, 51 (Ariz. 1976) (“[T]he gravity of
the death penalty requires that we painstakingly examine the
record to determine whether it has been erroneously
imposed.”). The Arizona Supreme Court also conducts a pro-
portionality review. State v. Correll, 715 P.2d at 737-38.
Therefore, even if defense counsel’s fears about the judge
were legitimate, there is no strategic excuse for failing to put
on evidence in support of statutory mitigating factors that the
Arizona Supreme Court could have considered in its indepen-
dent re-weighing of aggravating and mitigating factors.
[14] In short, to the extent that defense counsel had a strat-
egy at all, it cannot be considered an objectively reasonable
strategy.
3
Counsel’s ineffective assistance at sentencing cannot be
excused as strategic. He failed to conduct a sufficient investi-
gation to be able to make an informed judgment. To the extent
his decisions reflected any tactical considerations, his
approach of not putting on a mitigation case cannot be consid-
ered an objectively reasonable strategy, even when viewed
under the highly deferential Strickland standard.
III
[15] It is not enough for Correll to establish that his coun-
sel’s performance at sentencing fell below an objective stan-
dard of reasonableness at sentencing. He must also “show that
there is a reasonable probability that, but for counsel’s unpro-
CORRELL v. RYAN 17149
fessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. A reasonable probabil-
ity is a probability sufficient to “undermine confidence in the
outcome.” Id.In considering this question, we have recognized that defi-
cient performance and prejudice questions may be closely
related. See Summerlin, 427 F.3d at 643 (“[W]e conclude that
the failure of trial counsel to investigate, develop, and present
mitigating evidence at the penalty phase hearing has under-
mined our confidence in the sentence of death imposed by the
trial judge.”); Smith, 189 F.3d at 1011 (“Because of [coun-
sel’s] failure to provide competent representation, our confi-
dence in the outcome of Smith’s sentencing has been
undermined.”). In establishing prejudice under Strickland, it
is not necessary for the habeas petitioner to demonstrate that
the newly presented mitigation evidence would necessarily
overcome the aggravating circumstances. Williams, 529 U.S.
at 398. Accordingly, even where the facts discovered on
habeas review do not rise to the level of statutory mitigation,
we have held that a reasonable probability existed that this
information could have affected the sentence. Smith, 140 F.3d
at 1270; see also Rompilla, 125 S. Ct. at 2469 (“although we
suppose that [the sentencer] could have heard it all and still
have decided on the death penalty, that is not the test”).
[16] Here, as we have discussed, there was a substantial
amount of mitigating evidence that could have been pres-
ented, but was not. As the Supreme Court noted, “[h]ad the
jury been able to place petitioner’s excruciating life history on
the mitigating side of the scale, there is a reasonable probabil-
ity that at least one juror would have struck a different bal-
ance.” Wiggins, 539 U.S. at 537. The failure to present
mitigating evidence was particularly damaging under Arizona
law that existed at the time, which virtually guaranteed the
imposition of the death penalty based on Correll’s prior quali-
fying conviction.
17150 CORRELL v. RYAN
The dissent argues that Correll was not prejudiced by the
failure to investigate and present mitigation evidence and
argument, because the presentation of such evidence and
argument “would have enabled the prosecution to present
very damaging rebuttal evidence.” However, a significant
portion of that damaging rebuttal evidence was already avail-
able through the pre-sentence report. These facts could pro-
vide the basis for either the dehumanization of Correll, or
mitigation provided the proper context.8
[17] Correll was constitutionally entitled to the presentation
of a mitigation defense. He did not receive one, although sub-
stantial mitigation evidence existed. Most importantly,
because Arizona law required the imposition of a death sen-
tence if aggravating factors were proven and no mitigating
factors presented, the failure to present any mitigation defense
constituted ineffective assistance of counsel under the stan-
dards set forth in Strickland. The fear of a trial judge cannot
be considered strategic justification for forgoing the presenta-
tion of a mitigation defense, particularly given that (1) Ari-
zona law required imposition of the death penalty when no
mitigating factors were found, and (1) the Arizona Supreme
Court was required to re-weigh the aggravating and mitigating
factors.
[18] We conclude that Correll is entitled to relief in the
form of a new penalty phase trial. We reverse the judgment
of the district court and remand with instructions to issue a
writ of habeas corpus.
REVERSED.
8
That some of the defense witnesses at sentencing might have presented
inculpatory testimony is not particularly significant, given that counsel had
abandoned at sentencing any claims of actual innocence or misidentifica-
tion.
CORRELL v. RYAN 17151
O’SCANNLAIN, Circuit Judge, dissenting:
I respectfully dissent from the court’s conclusion that Cor-
rell has met the “highly demanding and heavy burden of
establishing actual prejudice” in the pursuit of his claim of
ineffective assistance of counsel during the penalty phase of
the trial. Allen v. Woodford, 395 F.3d 979, 1000 (9th Cir.
2005) (internal quotation marks omitted). The majority
ignores the mountain of precedent which provides that, in
assessing prejudice, we must consider not only the likely ben-
efits of the mitigating evidence counsel failed to present, but
also its likely drawbacks. The majority also substitutes its
independent analysis of the record for that of the district
court, and relies on its own view of the evidence rather than
considering, as we must, the effect the evidence would have
had on an Arizona sentencing judge twenty-two years ago.
Because I do not believe that Correll has met his burden “af-
firmatively [to] prove prejudice,” I would affirm the judgment
of the district court denying the petition for writ of habeas
corpus. See Strickland v. Washington, 466 U.S. 668, 693
(1984).
I
The facts of Correll’s brutal crimes are disturbing, but must
be recounted to illustrate the unlikelihood that Correll’s new
evidence would have convinced the sentencing judge not to
impose the death penalty.1
A
On the night of April 11, 1984, as Guy Snelling and his gir-
lfriend Debra Rosen were getting ready to go to sleep, a
1
Although it is normally not necessary to restate the facts and proce-
dural history in a dissenting opinion, the reader will understand that this
exercise is necessary due to the sharp divergence between the majority’s
presentation of the facts and the district court’s factual findings.
17152 CORRELL v. RYAN
knock came at the door. Snelling answered the door and
found John Nabors, his co-worker, and Correll, whom he had
not met.
After Snelling let the two men into his home, Nabors pulled
a gun and demanded money. Correll secured Snelling and
Rosen with duct tape. When Robin Cady and Shawn D’Brito,
two friends of Snelling, unwittingly arrived at the house, Cor-
rell secured them with duct tape as well. Then Correll and
Nabors escorted Snelling throughout his home to search for
money and valuables.
After raiding the house for approximately 45 minutes,
Nabors and Correll exited with Cady, D’Brito, and Snelling,
whom they forced into Cady’s car. Nabors briefly went back
inside to secure Rosen. While holding the gun on the three
victims, Correll drove to a deserted area where Nabors’s truck
was parked. Nabors took his truck and followed Correll, who
was still driving Cady’s car with the three victims, to a desert
area north of Phoenix. There, they forced the three victims out
of the car and made them lie face down on the ground. Correll
shot Snelling in the back of the head. Nabors then shot and
killed D’Brito, and then tried to shoot Cady. The gun misfired
a couple of times and Correll said “hurry up, hurry up, . . .
okay, it’s cool, no cars coming, get a shell chambered.” After
reloading the gun, Nabors was finally successful in shooting
and killing Cady. After Correll and Nabors left, Snelling, who
miraculously did not die, reported the crime. Rosen, whom
Nabors and Correll had left in the house when they drove the
other three victims into the desert, was later found in the
house, killed by strangulation.
B
At trial, Correll’s sole defense was misidentification—
namely, that Snelling, who was under the influence of drugs
and alcohol when the crimes occurred, had wrongly identified
Correll as one of his assailants, and that it was reasonably
CORRELL v. RYAN 17153
likely that Correll’s brother Terry, who resembled Correll,
had committed the crimes in Correll’s stead. Unpersuaded by
this defense, a jury convicted Correll of three counts of first
degree murder, one count of attempted first degree murder,
one count of armed robbery, one count of first degree bur-
glary, and four counts of kidnaping.
At sentencing, the government urged the court to impose
the death penalty. The government asserted that five statutory
aggravating factors were present: (1) a previous violent felony
conviction;2 (2) grave risk of death to others in addition to the
persons murdered;3 (3) commission of the murders in antici-
pation of pecuniary gain;4 (4) commission of the murders in
an especially heinous, cruel or depraved manner;5 and (5) con-
victions for multiple murders during the offense.6
In response, Correll’s attorney argued that the prosecution
had failed to prove, as required by Enmund v. Florida, 458
U.S. 782 (1982), that Correll intended to kill Rosen, Cady,
and D’Brito. Although the sentencing court did not accept this
argument, Correll’s attorney preserved it for appeal and the
Arizona Supreme Court later modified one of Correll’s death
sentences to life imprisonment on this ground. See State v.
Correll, 715 P.2d 721, 730-31 (Ariz. 1986). Correll’s attorney
also countered each of the government’s proffered aggravat-
ing factors.7 He argued—and the sentencing court agreed—
2
Ariz. Rev. Stat. § 13-703(F)(2).
3
Ariz. Rev. Stat. § 13-703(F)(3).
4
Ariz. Rev. Stat. § 13-703(F)(5).
5
Ariz. Rev. Stat. § 13-703(F)(6).
6
Ariz. Rev. Stat. § 13-703(F)(8).
7
The majority unduly discounts defense counsel’s attack of the govern-
ment’s asserted aggravating factors. See Maj. Op. at 17140-41. Both the
Arizona Supreme Court and the state trial court disagreed with the majori-
ty’s assessment of counsel’s performance with respect to the “grave risk
of death to others” and the “multiple murders” aggravating factors, agree-
ing with counsel’s assertion that the first factor was unsupported and the
17154 CORRELL v. RYAN
that the “grave risk of death to others” aggravating factor did
not apply. He also argued that the multiple murder aggravat-
ing factor could not be considered. Although the sentencing
court did not accept this argument, Correll’s attorney pre-
served it for appeal and the Arizona Supreme Court later
invalidated this aggravating factor. See id. at 734-35. Correll’s
attorney unsuccessfully argued that the evidence did not sup-
port the remaining aggravating factors.
In addition to challenging the government’s aggravating
factors, Correll’s attorney also pointed to mitigating evidence.8
In particular, he emphasized that Correll was not the trigger
man as to the three people who died and that “John Nabors
was the leader.” He noted that “Mr. Nabors was the one that
knew Guy Snelling was a drug dealer, that Guy Snelling
would have money and drugs [when] the robbery occurred.
So, it’s obvious that John Nabors did plan the robbery.” He
drew the court’s attention to Snelling’s statement that “it
appeared to him that John Nabors was the leader, was the one
calling the shots, so to speak.” He further noted that, prior to
the robbery, Correll could not have reasonably anticipated
that anyone would be present in the home other than Guy
Snelling. Accordingly, he could not have planned the three
deaths.9
second was unconstitutional in this case. The Arizona Supreme Court also
found persuasive defense counsel’s argument that the government failed
to prove beyond a reasonable doubt that Correll intended to kill one victim
and therefore the death penalty could not be imposed on that count. Fur-
thermore, counsel made compelling substantive legal and factual argu-
ments with respect to the other aggravating factors.
8
Quoting the state trial court record, the majority asserts that the “De-
fendant waive[d] presentation of mitigating evidence.” Maj. Op. at 17140;
see also id. at 17140. This excerpt, however, was only the conclusion of
the court clerk. Indeed, defense counsel adamantly stated that “[w]e didn’t
waive” the presentation of mitigating evidence.
9
A defendant’s inability reasonably to foresee that his conduct would
cause death to another person is a statutory mitigating factor. See Ariz.
Rev. Stat. § 13-703(G)(4).
CORRELL v. RYAN 17155
Correll’s attorney also argued in both his sentencing memo-
randum and his oral argument that Correll was under the
influence of drugs and alcohol at the time of the murders.10 He
specifically drew the sentencing judge’s attention to Snell-
ing’s statement to the police that he smelled alcohol on Cor-
rell’s breath during the crimes. Correll’s attorney further
argued that “the reason that Mike [Correll] has had problems
is the fact that when he was 14 years old, that both of his par-
ents abandoned him and what can be expected when someone
is abandoned by their parents at such an early age?” Correll’s
attorney also argued that Correll’s age—24—was mitigating.11
Although counsel knew that Correll had received psycho-
logical counseling, counsel declined to develop psychological
evidence because he believed, based on his conversations
with Correll, that the only possible diagnosis was antisocial
personality disorder. As counsel explained at the evidentiary
hearing, he believed that this diagnosis would carry little miti-
gating weight with the sentencing judge and would, in fact,
make it easier for the judge to sentence Correll to death
because it would cause him to view Correll as permanently
damaged psychologically.12
10
A defendant’s inability to appreciate the wrongfulness of his conduct
or to conform his conduct to the requirements of law is a statutory mitigat-
ing factor. See Ariz. Rev. Stat. § 13-703(G)(1).
11
A defendant’s age is a statutory mitigating factor. See Ariz. Rev. Stat.
§ 13-703(G)(5).
12
The district court explained, based on the evidence presented at the
sentencing hearing:
Rather than argue Petitioner’s personality disorder to Judge
Howe, [counsel] decided that Petitioner had a better chance to
avoid the death penalty if he portrayed that Petitioner was
involved in a drug ripoff which had gone terribly wrong, that
Petitioner had only been a follower in the matter, that he had not
been the trigger-man as to the three people who died, that Guy
Snelling had reported to police that Petitioner was under the
influence of drugs and/or alcohol at the time of the crimes, and
that he should be shown sympathy because his family abandoned
him at the age of 14.
17156 CORRELL v. RYAN
C
The sentencing judge ultimately found four statutory aggra-
vating circumstances.13 Determining that the mitigating evi-
dence did not outweigh these factors, the judge sentenced
Correll to death on each of the murder counts.14 The Arizona
Supreme Court affirmed Correll’s convictions, with the modi-
fications previously mentioned. It then re-weighed the aggra-
vating and mitigating factors and determined that the death
penalty was appropriate. Correll, 715 P.2d at 736.
In his state petition for postconviction relief, Correll
alleged that his counsel rendered ineffective assistance at sen-
tencing. He contended that during the month that elapsed
between the jury verdict and the sentencing hearing, his attor-
ney met with him for just five minutes. He also contended that
his attorney failed to investigate and to develop available evi-
dence relating to his psychiatric history and condition at the
time of the crimes. The state trial court summarily dismissed
the petition, stating that
[n]o colorable issues relating to ineffective assis-
tance of counsel are raised. In this respect, the Court
specifically recalls that the trial work of defense
counsel was precise, careful, and competent, and
manifested strategic and tactical judgments of the
same high quality.
13
The Supreme Court has since held that Arizona’s practice of judges
finding aggravating factors violates the Sixth Amendment right to a jury.
See Ring v. Arizona, 536 U.S. 584 (2002). Ring does not apply, however,
to cases such as this one that were already final on direct review. See
Schriro v. Summerlin, 542 U.S. 348, 358 (2004).
14
The majority erroneously states that “Arizona law required imposition
of the death penalty when no mitigating factors were found.” Maj. Op. at
17150. But, as the majority itself recognizes in the preceding sentence,
Arizona law only required the imposition of the death penalty if aggravat-
ing factors were proven and no mitigating factors sufficiently substantial
to call for leniency were found.
CORRELL v. RYAN 17157
The Arizona Supreme Court denied review without comment.
Correll later filed a federal petition for writ of habeas cor-
pus and the district court entered summary judgment against
him. On appeal (“Correll I”), we held that Correll’s ineffec-
tive assistance allegations, which had not been fully explored
in state court, entitled him an evidentiary hearing. We held
that Correll had established (1) that the state court trier of fact
had not conducted a full and fair hearing to find the relevant
facts, and (2) that his allegations, if proven, might constitute
a colorable ineffective assistance claim. Correll v. Stewart,
137 F.3d 1404, 1411-12 (9th Cir. 1998).
D
Pursuant to our instructions on remand, the district court
conducted a nine-day evidentiary hearing on Correll’s ineffec-
tive assistance of counsel claim. Correll, who waived his
appearance, called fourteen witnesses. The government called
three witnesses. The district court studied reams of docu-
ments, including Correll’s attorney’s notes, which were nearly
a quarter-century old, and Correll’s childhood medical
records, which were two decades older.
Based on the evidence presented at the hearing, the district
court rejected Correll’s allegation that his attorney only spent
five minutes with him between conviction and sentence. The
district court found instead that “[p]rior to sentencing, [coun-
sel] had multiple face-to-face meetings and phone calls with
Petitioner” in which he “discuss[ed] with Petitioner the over-
all mitigation case and the specific reasons he would present
to the court in favor of a life sentence rather than the death
penalty.” The district court found that counsel spoke to
between 40 and 50 witnesses, including all of Correll’s family
members who would cooperate. The district court further
found that, unfortunately, “[t]he witnesses were not able to
provide relevant useful mitigation information. In fact, in
17158 CORRELL v. RYAN
many instances, the witnesses only provided inculpatory and
non-mitigating information.”
After outlining all the evidence in a detailed 109-page dis-
position, the district court found constitutionally deficient per-
formance on two narrow grounds: (1) counsel’s failure to
obtain medical treatment records arising out of a head injury
that occurred when Correll was seven years old and (2) coun-
sel’s failure to thoroughly review Correll’s mental health
records. The court determined that a reasonable attorney
would have investigated these matters for possible mitigating
evidence rather than relying on his own impression, based on
his interaction with the defendant, that the defendant had no
intellectual or psychological deficits that could serve as miti-
gating evidence.
Notwithstanding these errors, the district court found that
Correll was not prejudiced by counsel’s ineffectiveness. After
postconviction counsel developed all the evidence relating to
Correll’s head injury and mental health history, it was clear
that there was “a lack of substantial mitigation” available
because Correll, in the words of the district court, “is a highly
functioning adult” who has never suffered from brain damage
or a major psychological disorder. Furthermore, the district
court found that much of the evidence Correll now claims
counsel should have put before the sentencing judge would
have been counterproductive because, in the words of the dis-
trict court, it would have “opened the door for the prosecution
to come forward with strong damaging rebuttal information to
counter its mitigating effect.”
II
As the Supreme Court has made clear, we do not presume
prejudice from counsel’s ineffective assistance. Strickland,
466 U.S. at 693. Once we determine that “counsel’s perfor-
mance was deficient, [Correll] still bears the highly demand-
ing and heavy burden of establishing actual prejudice.” Allen,
CORRELL v. RYAN 17159
395 F.3d at 1000 (internal quotation marks omitted) (empha-
sis added). This burden “affirmatively [to] prove prejudice”
requires showing more than just the possibility that counsel’s
performance prejudiced the outcome. Strickland, 466 U.S. at
693. Correll must demonstrate “a reasonable probability” that,
but for counsel’s constitutionally deficient performance, he
would have received a lesser sentence. Id. at 695. In assessing
prejudice, of course, “we are not asked to imagine what the
effect of certain testimony would have been upon us personal-
ly.” Stewart v. Smith, 140 F.3d 1263, 1270 (9th Cir. 1998).
We instead must determine what the effect of Correll’s new
evidence might have been upon the Arizona sentencing judge
at the time of Correll’s sentencing hearing twenty-two years
ago.15 Id.The majority, in reaching its conclusion that Correll has
met his heavy burden to demonstrate prejudice, ignores the
mountain of precedent which provides that we must consider
not only the benefits of the ostensibly mitigating evidence
counsel failed to present, but also its drawbacks. The Supreme
Court has long instructed that we must consider whether the
new mitigating evidence, if presented, would have been coun-
terproductive. In Darden v. Wainwright, 477 U.S. 168, 186
(1986), the Supreme Court held that trial counsel’s failure to
present any mitigating evidence did not constitute deficient
performance because the presentation of such evidence would
open the door to damaging rebuttal evidence. Similarly, in
Burger v. Kemp, 483 U.S. 776 (1987), the Supreme Court
held that psychological records were “by no means uniformly
helpful to petitioner because they suggest violent tendencies
that are at odds with the defense’s strategy of portraying peti-
tioner’s actions on the night of the murder as the result of
[another person’s] strong influence upon his will.” Id. at 793.
15
Because Correll’s petition for a writ of habeas corpus was filed before
the effective date of the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, pre-AEDPA law
governs our review. Lindh v. Murphy, 521 U.S. 320, 327 (1997).
17160 CORRELL v. RYAN
Based on these cases, we have held that an attorney who
failed to present psychological testimony relating to the
defendant’s antisocial personality disorder was not ineffective
because such testimony “would have allowed the prosecution
during cross-examination and rebuttal to rehash the horrific
details of [the] crimes.” Bonin v. Calderon, 59 F.3d 815, 836
(9th Cir. 1995). The Supreme Court, in Wiggins v. Smith, 539
U.S. 510 (2003), repeatedly emphasized that this line of cases
remains in effect. In finding that Wiggins had met his burden
to prove prejudice, the Supreme Court noted “Wiggins d[id]
not have a record of violent conduct that could have been
introduced by the State to offset” the mitigating evidence. Id.
at 537. The Court explained that “Wiggins’s history contained
little of the double edge” present in other cases. Id. at 535. It
also noted that there was no evidence “suggest[ing] that a mit-
igation case, in its own right, would have been counterproduc-
tive.” Id. at 525. The majority errs by ignoring the fact that,
unlike Wiggins, much of new mitigating evidence Correll
argues his attorney should have presented would have enabled
the prosecution to present very damaging rebuttal evidence.
The majority compounds this error by substituting its own
independent review of the record for that of the district court.
Our review of the district court’s factual findings is supposed
to be “significantly deferential, in that we must accept the dis-
trict court’s factual findings absent a definite and firm convic-
tion that a mistake has been committed.” Silva v. Woodford,
279 F.3d 825, 835 (9th Cir. 2002) (internal quotation marks
omitted). As long as the district court’s account of the evi-
dence “ ‘is plausible in light of the record viewed in its
entirety, the court of appeals may not reverse it even though
convinced that had it been sitting as the trier of fact, it would
have weighed the evidence differently.’ ” Phoenix Engineer-
ing and Supply Inc. v. Universal Elec. Co., Inc., 104 F.3d
1137, 1141 (9th Cir. 1997) (quoting Anderson v. Bessemer
City, 470 U.S. 564, 573-74 (1985)). Unfortunately, the major-
ity repeatedly flouts this standard of review. As set out below,
CORRELL v. RYAN 17161
these errors lead the majority to eviscerate the prejudice stan-
dard set out in Wiggins, 539 U.S. 510.
Taking the facts as they actually are, not as the majority
wishes them to be, it is apparent that Correll failed to carry
his burden to demonstrate “a reasonable probability” that, but
for counsel’s constitutionally deficient performance, he would
have received a lesser sentence. Strickland, 466 U.S. at 695.
A
First, counsel’s failure to obtain the medical records relat-
ing to Correll’s childhood head injury had virtually no impact
on sentencing because these records did not, in fact, demon-
strate any brain damage. Based on testimony received from
neuropsychologists, the district court found that Correll “did
not suffer any brain injury from the block wall that fell on him
when he was 7 years old.” The district court credited a
neuropsychologist’s testimony “that of all the capital defen-
dants he has tested, Petitioner is one of the highest function-
ing” and determined that Correll is “a highly functioning
adult.”
The medical records from the incident support the district
court’s assessment. After the childhood injury, Correll was
diagnosed with a subgaleal hematoma, which is a bruise or
collection of blood under the scalp, but above the skull. The
hematoma cleared in five days, at which time a doctor
described the seven-year-old Correll as alert and well. See
Smith v. Stewart, 189 F.3d 1004, 1013 n.4 (9th Cir. 1999)
(noting that “the absence of [a presentation of] mitigating evi-
dence may be irrelevant when no substantial mitigating evi-
dence is available”). I accordingly cannot agree with the
majority’s conclusion that Correll has carried his burden to
establish a reasonable possibility that he would have received
a lesser sentence if the records relating to his childhood head
injury had been before the sentencing judge.
17162 CORRELL v. RYAN
B
Second, Correll’s new psychiatric evidence also would not
have significantly helped his case. The district court found
that “there is insufficient evidence to support that Petitioner
has ever suffered from any major mental illness, whether
PTSD [post traumatic stress disorder], a major depressive dis-
order, or a bipolar disorder.” The district court reached this
factual finding after two psychological experts testified that
there was no evidence Correll has ever suffered from these
disorders. The sole witness who speculated that Correll might
have suffered from post traumatic stress disorder acknowl-
edged that such a diagnosis was “only a possibility.” The dis-
trict court found Correll’s self-reporting of bipolar disorder
and severe depression incredible in light of Correll’s obvious
motive to fabricate and in light of the fact that these diagnoses
do not appear in his records and Correll indicated that he was
never given medication to treat them.
The district court also found that the evidence did not sup-
port Correll’s contention that he was given anti-psychotic
medications while in custody. In reaching this factual finding,
the district court noted that the mental health experts for both
parties scrutinized Correll’s medical records from the Califor-
nia Department of Corrections (“CDC”) and reported the
absence of any indication that anti-psychotic medication was
ever prescribed. Although it appears that Correll was given
Mellaril for a period of time as a juvenile, the government’s
mental health expert, Dr. John Scialli, M.D., testified without
opposition that the dosage—25 milligrams—would have
served as a mild tranquilizer and was far lower than the dos-
age that would be utilized to counteract psychosis (approxi-
mately 625 milligrams).
Accordingly, had Correll’s attorney thoroughly reviewed
Correll’s mental health records, he would have only had cred-
ible evidence for the diagnosis he already suspected: antiso-
cial personality disorder accompanied by mild depression. As
CORRELL v. RYAN 17163
we have previously noted, an antisocial personality disorder
diagnosis may be “potentially more harmful to [a] petitioner
than [helpful].” Gerlaugh v. Stewart, 129 F.3d 1027, 1035
(9th Cir. 1997). We have “agree[d] with the Arizona Supreme
Court that this evidence has obvious countervailing tactical
dangers,” because “[i]n its best possible light, it is a basket of
cobras.” Id. “Accordingly, [in a prior case,] we c[ould] iden-
tify no prejudice flowing from counsel’s failure to develop”
psychiatric testimony relating to a defendant’s antisocial per-
sonality disorder. Id.; see also Darden, 477 U.S. at 186-87(counsel’s decision not to present character or mental-state
evidence in mitigation was sound trial strategy because the
mitigating evidence would have opened the door to damaging
rebuttal evidence, which included a psychiatric opinion that
the defendant had a sociopathic personality); Clabourne v.
Lewis, 64 F.3d 1373, 1384 (9th Cir. 1995) (noting that mental
health records omitted from the sentencing hearing “hardly
turned out to be helpful” because they indicated that the
defendant had “an antisocial personality”); Daniels v. Wood-
ford, 428 F.3d 1181, 1204, 1210 (9th Cir. 2005) (indicating
that testimony suggesting that a capital defendant is a “socio-
path” is aggravating rather than mitigating); Caro v. Wood-
ford, 280 F.3d 1247, 1257 (9th Cir. 2002) (concluding that a
psychologist’s testimony did not help the defendant’s mitiga-
tion case because it tended “to paint him as a violent psycho-
path”); Beardslee v. Woodford, 358 F.3d 560, 583 (9th Cir.
2004) (acknowledging that an antisocial personality diagnosis
can be damaging to a capital defendant); Williams v. Calde-
ron, 52 F.3d 1465, 1472 (9th Cir. 1995) (“We have no doubt
that . . . statements [suggesting that the defendant is socio-
pathic] did nothing to advance Williams’s cause.”).
Furthermore, had Correll’s attorney presented Correll’s
mental health records at sentencing, he would have opened
the door for the prosecution to present extremely damaging
rebuttal evidence that would have likely eviscerated the mini-
mal mitigating impact these records carried. The district court
found that, had Correll’s attorney presented mental health evi-
17164 CORRELL v. RYAN
dence, the “highly skilled” prosecutor would have presented
the following evidence that was not already before the sen-
tencing judge:
(i) Petitioner’s rape of a female psychotic patient
while he was undergoing mental health treatment for
his antisocial personality disorder and mild depres-
sion; (ii) Petitioner’s numerous escapes from mental
health treatment facilities and rejections of institu-
tional efforts to provide him with mental health treat-
ment; (iii) Petitioner’s hostage taking and armed
aggression against mental health workers in an
escape attempt from a mental health treatment facil-
ity; (iv) the underlying factual basis of Petitioner’s
prior convictions for armed robbery; . . . (viii) the
conclusion of a social evaluation at age 18 that Peti-
tioner was not a candidate for probation and was a
danger to the community; (ix) additional information
showing the efforts of Petitioner’s parents to deal
with his drug abuse problem and obtain psychologi-
cal treatment for him following his armed threat
against a teacher at school; (x) that Petitioner had no
desire to work but only wished to enjoy himself; and
(xi) Petitioner’s statement that when he committed
the 1978 armed robberies that it gave him a strong
sense of power and excitement.
The district court “credit[ed counsel’s] testimony that the
prosecutor, Sidney Davis, had a reputation for excellent prep-
aration and that she would have left no stone unturned in her
opportunity to rebut any mitigation evidence presented.”
Additionally, presentation of Correll’s antisocial personal-
ity disorder at sentencing would have severely undermined
counsel’s strategy of arguing that Correll merely followed
Nabors’s lead during the crimes. The antisocial personality
diagnosis would have almost certainly prompted the govern-
ment to point out that Correll, at age 18, was the instigator of
CORRELL v. RYAN 17165
an armed robbery in which he enlisted the assistance of his
13-year-old brother and 15-year old girlfriend. See Bonin, 59
F.3d at 836 (finding that the failure to present expert psycho-
logical testimony was not prejudicial because it “would have
distracted jurors from [counsel’s main mitigation] theory and
[other] mitigation evidence, reduced [the defendant’s] credi-
bility with the jury, and opened the door to powerful cross-
examination and rebuttal”); Burger, 483 U.S. at 793 (holding
that a petitioner failed to prove ineffective assistance where
the affidavits detailing the defendant’s behavioral history his
attorney failed to present “are by no means uniformly helpful
to petitioner because they suggest violent tendencies that are
at odds with the defense’s strategy of portraying petitioner’s
actions on the night of the murder as the result of [another
person’s] strong influence upon his will”).
In sum, the psychological evidence, if presented, would
have demonstrated only that Correll has an antisocial person-
ality with mild depression. Evidence of an antisocial personal-
ity would have had tremendous potential to be more harmful
than helpful. In addition, this evidence would have opened the
door for the prosecution to introduce a laundry list of
extremely damaging information not already before the sen-
tencing judge and would have crippled Correll’s chances of
convincing the sentencing judge that he was merely following
Nabors’s lead during the crimes.16 Accordingly, contrary to
16
The majority concludes that “a significant portion of that damaging
rebuttal evidence was already available through the pre-sentence report.”
Maj. Op. at 17150. But, as discussed at length in this dissent, defense
counsel realized the introduction of some potentially mitigating evidence
would open the door to a parade of horribles. For example, while the pre-
sentence report summarily discloses Correll’s conviction of three counts
of armed robbery in 1978, defense counsel understandably wanted to pre-
clude damning rebuttal evidence revealing that Correll enlisted his 13-
year-old younger brother and his 15-year-old girlfriend in the robbery of
the three convenience stores at gunpoint. Furthermore, the pre-sentence
report is silent regarding other extremely damaging information that the
prosecutor would have surely brought to light in rebutting certain poten-
tially mitigating evidence.
17166 CORRELL v. RYAN
the majority’s conclusion, Correll cannot prove a reasonable
probability that he would have received a lesser sentence if
the available psychological evidence had been before the sen-
tencing judge.
C
As to Correll’s drug use, the district court found that there
was no evidence—other than Correll’s self-serving statements
—that Correll was significantly impaired at the time of the
crimes. Arizona law at the time provided that “[a] defendant’s
intoxication or alcoholism at the time of the offense is a miti-
gating circumstance if the evidence shows that it significantly
impaired the defendant’s capacity to appreciate the wrongful-
ness of his conduct or to conform his conduct to the require-
ments of the law.” State v. Zaragoza, 659 P.2d 22, 30 (Ariz.
1983) (emphasis added). The district court found that Cor-
rell’s behavior during the murders indicated he was not intox-
icated:
[I]t was Petitioner who remained calm when the gun
misfired as Nabors was trying to kill Robin Cady. It
was Petitioner who encouraged Nabors to remain
calm as there were no cars coming, to get a shell
chambered and shoot Cady. Such behavior at the
time of the crime does not demonstrate intoxication
and, in fact, undercuts an assertion of intoxication.
See Williams v. Woodford, 384 F.3d 567, 624 (9th Cir. 2004)
(reasoning that there is little basis for believing that drugs
materially affected the defendant’s behavior at the time of the
crimes when the facts of the crimes reflect deliberate and
methodical action).
No witnesses could have testified that Correll was intoxi-
cated during the crimes and only one witness, Correll’s sister,
could have testified that Correll used methamphetamine in the
morning of the day prior to the crime. Correll was not preju-
CORRELL v. RYAN 17167
diced by his sister’s failure to testify, however, because her
testimony, on cross-examination, would have eviscerated any
remaining residual doubt in the sentencing judge’s mind as to
Correll’s guilt. As the district court found, her “testimony
would have totally eliminated any mitigating weight from
Petitioner’s claim of innocence and residual doubt (i.e., the
guilt phase misidentification defense).” She knew Correll was
with Nabors when the crimes occurred and that they had
sought a ride out of the state very soon after the murders
occurred. See Allen, 395 F.3d at 1004 (explaining that “miti-
gation witnesses proffered by [the defendant] would not have
proved helpful given their own involvement in [the defen-
dant]’s criminal enterprise.”); Williams v. Woodford, 384 F.3d
567, 624 (9th Cir. 2004) (“[T]he best thing a capital defendant
can do to improve his chances of receiving a life sentence has
nothing to do with mitigating evidence strictly speaking. The
best thing he can do, all else being equal, is to raise doubt
about his guilt.”).
The only other witness Correll’s postconviction counsel
presented relating to drug use was Dawn Day, who testified
that she used methamphetamine with Correll during a four
month period from November 1982 until February 1983. We
cannot consider Day’s testimony, however, because Correll
failed to establish that Day was available to testify at his sen-
tencing hearing. See Douglas, 316 F.3d at 1086 n. 2 (explain-
ing that testimony presented at a district court evidentiary
hearing that was not available to counsel at the sentencing
hearing may not be considered for prejudice purposes). Fur-
thermore, even had Correll established that Day would been
available, Day’s testimony that Correll used methamphet-
amine more than a year before the crime would have provided
little support for an argument that Correll, at the time of the
crime, was so impaired that he was unable “to appreciate the
wrongfulness of his conduct or to conform his conduct to the
requirements of the law.” Zaragoza, 659 P.2d at 30.
Finally, the district court reasonably declined to credit Cor-
rell’s two drug abuse experts’ opinions on the effects of
17168 CORRELL v. RYAN
severe methamphetamine addiction because these opinions
were not based on an examination of Correll but instead were
based on a hypothetical set of facts provided by Correll’s
postconviction counsel. As the district court explained:
Dr. Sullivan did not examine Petitioner nor did he
look at Petitioner’s Arizona Department of Correc-
tions or CDOC records. Rather, Dr. Sullivan was
asked to assume [a set of] hypothetical facts [that] do
not accurately or reliably portray Petitioner’s alleged
drug abuse. . . . [H]is opinion was based on unsub-
stantiated and unreliable assumptions.
In stark contract to the hypothetical assumptions on which Dr.
Sullivan’s opinion was based, the district court found that
Correll was incarcerated, except for 229 days, during the nine
year period between October 1975 (when Correll was first
incarcerated, at age 14) and March 1984 (the month before
the crime) and that “Petitioner was not a methamphetamine
addict or a long-term abuser of methamphetamine during the
time he was incarcerated.” The district court further
explained:
The Court does not credit Petitioner’s unsubstan-
tiated self-report that he abused methamphetamine
every day before the crimes were committed. Peti-
tioner chose not to testify at the evidentiary hearing;
Petitioner chose not to fully cooperate with [the gov-
ernment’s drug abuse expert’s] examination of him
regarding the issue of drug abuse. Because of the
obvious motive to fabricate, Petitioner’s self-serving
statements about his drug usage prior to the crimes
is [sic] unreliable and subject to searching skepti-
cism. See, e.g., [State v.] Medrano, 914 P.2d [192,]
227 [(Ariz. 1996) (“the defendant provided most of
the information concerning his use of cocaine in the
past and on the night of the murder, as well as the
drug’s effect on him. Because of the obvious motive
CORRELL v. RYAN 17169
to fabricate, such self-serving testimony is subject to
skepticism and may be deemed insufficient to estab-
lish mitigation.”)]; see also Bernard Smith [v. Stew-
art], 140 F.3d [1263,] 1270 [1998] (evaluating
evidence based on impartial sentencing judge apply-
ing Arizona law); see generally, Strickland, 466 U.S.
at 695 (“The assessment of prejudice should proceed
on the assumption that the decision maker is reason-
ably, conscientiously, and impartially applying the
standards that govern the decision.”). The Court’s
searching skepticism toward Petitioner’s self report
is corroborated by Respondent’s drug abuse expert,
Dr. Matthews, who opined as follows: “Antisocial
personality disorder is characterized by malingering
and deceit; instances of [Petitioner’s] lifelong pattern
of deceptiveness abound throughout his penal and
other records. He has been deceitful about a great
many matters, including his history of substance
abuse. Because of [Petitioner’s] history of deceit, it
is a major clinical error to accept [Petitioner’s] self-
serving view of his condition at the time of the
offense as accurate.”
Furthermore, Correll’s other expert witness on drug addic-
tion, Dr. Shaw, whom the majority quotes for the proposition
that Correll “may have been experiencing drug-induced para-
noia” at the time of the murders, Maj. Op. at 17143, was
“thoroughly impeached” at the evidentiary hearing. As the
district court explained, “Dr. Shaw admitted that he only min-
imally considered the facts of the crime before reaching his
conclusion.” The district court found Dr. Shaw’s opinion “en-
tirely not credible and wholly speculative” because it, like Dr.
Sullivan’s opinion, was “based upon hypothetical drug usage
at the time of the crimes that was not established.”
Based on the foregoing, I agree with the district court that,
under the facts of this case, counsel’s failure to present evi-
dence regarding Correll’s drug use—other than counsel’s
17170 CORRELL v. RYAN
statement that Correll had been using alcohol and drugs and
Snelling’s statement that he smelled alcohol on his captor’s
breath—was not prejudicial. I agree with the district court’s
conclusion that if Correll’s attorney had called an expert to
testify, “it is highly likely any lay witness basis for the
expert’s opinion could have been cross-examined at sentenc-
ing and impeached by virtue of the fact that no lay witness
could testify that Petitioner was intoxicated at the time of the
crimes.” I also credit the district court’s observation that “if
an expert had testified based solely on Petitioner’s self-
reporting . . . it is very likely that the expert’s opinion would
have been severely undermined by undisputed evidence that
Petitioner had spent almost 9 of the last 10 years incarcerated
with little or no access to drugs.”17 I accordingly cannot agree
with majority’s conclusion that Correll has met his burden to
prove that, had counsel presented more detailed evidence
about his drug use, he would have received a lesser sentence.
D
Finally, Correll has presented no credible evidence about
his childhood that his attorney could have placed before the
sentencing judge other than the evidence the sentencing judge
already had before him. The district court, who is in the best
position to determine credibility, found Correll’s uncorrobo-
rated allegation that his mother banged his head against a
kitchen table incredible. In regard to the head injury Correll
17
I would further note that a drug defense likely would have evoked less
sympathy from an Arizona sentencing judge 22 years ago than it does
from the court today. See Mayfield v. Woodford, 270 F.3d 915, 931 (9th
Cir. 2001) (crediting testimony that there were “no death penalty cases
tried in San Bernardino County prior to 1983 where a drug defense had
been successful in gaining either an acquittal or in reducing the sentence
from death to life without parole.”). The sentencing judge likely would
have taken note of the fact that Correll never sought treatment for his sub-
stance abuse problem and repeatedly secured his removal from the mental
health programs in which he was placed either by escaping or by violently
assaulting the staff.
CORRELL v. RYAN 17171
suffered at age seven when a cinder block wall fell on him,
the district court expressly found that Correll’s parents were
not negligent in securing medical care. Based on the medical
records presented at the evidentiary hearing, the district court
found that Correll’s parents took him to the family doctor the
day the accident occurred and “acted reasonably in caring for
Petitioner, which included two visits to their family doctor,
one emergency room visit and a follow-up visit for additional
specialized testing.”
The remaining family history evidence the majority cites
comes from Reverend Curry, whom the district court found
“was not an available witness” for counsel at the time of the
sentencing hearing. The district court found “that if [Reverend
Curry] had been contacted by [counsel] prior to sentencing, he
would have informed him that he would not discuss informa-
tion about Petitioner or appear at sentencing because it was
against California law for him to discuss former residents of
the CYA.”18 Accordingly, Reverend Curry’s testimony cannot
factor into the prejudice analysis. See Douglas, 316 F.3d at
1086 (explaining that testimony presented at a district court
evidentiary hearing that was not available to counsel at the
sentencing hearing may not be considered for prejudice pur-
poses).
The district court further found that had counsel empha-
sized Correll’s parents’ use of corporal punishment, the prose-
18
While the majority quotes Reverend Curry’s testimony that he “would
have unhesitatingly come to help” Correll, see Maj. Op. at 17137 n.3, I
credit the district court’s finding that at the time of the sentencing hearing
he was unavailable to help. Reverend Curry testified that he “cannot offer
testimony or assertions regarding people who have been in California
Youth Authority [because] [i]t is forbidden by law.” Reverend Curry testi-
fied that others “may contact me,” but he “could not make contact with”
counsel and when he “talked with [his] supervisors about it, . . . they said
no.” Furthermore, defense counsel testified that when he contacted Rever-
end Curry’s wife, she informed him that the Reverend “didn’t really want
to be involved.”
17172 CORRELL v. RYAN
cution would have countered with evidence that Correll’s
parents took him to a private psychologist and participated in
a six-month treatment program with him after he was expelled
from eighth grade for threatening a teacher with a knife. The
prosecution likely also would have presented evidence that
Correll had repeatedly molested his sister. Accordingly, on
balance, presentation of family history evidence would have
been counterproductive. I cannot agree with the majority’s
conclusion that Correll has met his burden to prove that, had
counsel presented more detailed evidence about his child-
hood, he would have received a lesser sentence.
III
The sum of the majority’s analysis in this case simply evis-
cerates the requirement that a habeas petitioner prove preju-
dice in order to prevail on a claim for ineffective assistance
of counsel. Not satisfied with merely reconstructing the facts,
the majority also reinvents Supreme Court authority, asserting
that the mitigating evidence in this case “is clearly sufficient
to establish prejudice under the Supreme Court’s standard in
Wiggins, 539 U.S. at 534-38.” Maj. Op. at 17143. This state-
ment, of course, is patently absurd, as even a cursory review
of the facts in Wiggins reveals that Correll fell drastically
short of carrying the demanding burden of proving actual
prejudice the Supreme Court found sufficient in that case.
In Wiggins, the petitioner “experienced severe privation
and abuse in the first six years of his life while in the custody
of his alcoholic, absentee mother,” suffered “physical tor-
ment, sexual molestation, and repeated rape” during his sub-
sequent years in foster care, and spent time homeless. Id. at
512. Perhaps most crucial, the petitioner in Wiggins was men-
tally retarded. Id.Correll’s new evidence, which reveals that he is “a highly
functioning adult,” comes nowhere close to the “powerful
mitigating narrative” present in Wiggins. Id. at 513. In fact,
CORRELL v. RYAN 17173
the district judge, who is in the best position to evaluate the
evidence, concluded that, when one considers both the posi-
tive and negative repercussions of Correll’s new evidence, the
balance of aggravation and mitigation “has barely been
altered.” By holding that the mitigating evidence in this case
is clearly sufficient to establish prejudice under Wiggins, the
majority essentially writes the prejudice requirement out of
our circuit jurisprudence.
I respectfully dissent.