Robert Alton Harris v. Daniel Vasquez, Warden of California State Prison at San Quentin , 943 F.2d 930 ( 1991 )

NOONAN, Circuit Judge,

concurring in part and dissenting in part:

This court is asked to decide a very narrow issue. It is: Is Robert Alton Harris entitled to an evidentiary hearing as to any of his claims? In other words, do we know enough right now, without a district court finding any facts, to say that Harris’ claims, even if true, entitle him to no relief?

I agree that for the reasons stated by the majority Harris’ petition does not require a hearing on the ground that he was deprived of the effective assistance of counsel or that he has turned up new evidence or that the state put forward false testimony against him or that an undisclosed agent of the government testified against him. I also agree that Harris’ mental state was not an issue requiring psychiatric evidence in the guilt phase of his trial. I respectfully disagree with my colleagues because I believe that Harris has a right to present evidence as to whether he was denied his constitutional right to effective psychiatric assistance in the penalty phase of his trial.

I reach this conclusion in four steps, none of which I find in doubt:

1. A new constitutional right of “bedrock” fairness affecting the accuracy of the determination of the triers of fact, found by the Supreme Court to exist after the conclusion of a trial and after the filing of a petition for habeas corpus that is before the court, may be asserted retroactively by a defendant.

2. Such a new constitutional right to effective psychiatric assistance was established by the Supreme Court in 1985, after Harris’ trial and while his second petition for habeas corpus was before the courts.

3. Harris alleges that he has evidence to show that he was denied effective psychiatric assistance in the hearing on his sentence.

4. Therefore, Harris is entitled under our law to a hearing that will determine if his evidence will prove what he alleges.

In 1985, in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the United States Supreme Court established a new, previously unknown right: the right of a defendant on trial for his life to have effective psychiatric assistance if his mental state was at issue. If the defendant was too poor to pay for such help, the state had the duty to provide it. The right and corresponding duty were created by the Supreme Court finding in the Constitution this requirement of fundamental fairness.

Most new constitutional rules are not applied retroactively. If, however, the rule enhances the accuracy of the determination of the facts and goes to fundamental fairness, the rule is applied retroactively. The Ake rule is of this kind.

Applying a rule retroactively is upsetting. The rule was not known at the time. The state was innocently ignorant of its duty. The defendant and his lawyer were unaware of what they could ask. Retroactive application means re-creating the earlier proceeding and asking, “What did the defendant have a right to, if the rule had been in effect?” The answer is, “A right to effective psychiatric assistance, provided by the state if the defendant was too poor to pay for it.”

Harris was too poor to pay for it. He alleges he did not get it. The state says he did. No evidence has been taken. We have only allegations, declarations, affidavits, and arguments, none of them tested by cross-examination. If Harris’ claim should be true, he is entitled to a new trial as to his sentence. If it should not be true, he must face execution. We must therefore take the time to let a federal district judge hear evidence and decide what the facts are. An evidentiary hearing must be held.

Creating the new right that now exists, the United States Supreme Court gave a new status in criminal law to a set of procedures and opinions that are a mixture of empirical data, accepted theories, disputed hypotheses, intuition and art. Psychiatry is a delicate tool, highly dependent on the ability and experience of the practitioner. Brought by the Constitution into conjunction with the blunt question of a capital case — Yes or No, Life or Death?— sensitive psychiatric skill can illuminate dark corners of the defendant’s mind so that a jury of lay persons may feel more confident of their verdict. But that every capital case — and, logically, every criminal case — should be illuminated by psychiatry is not a proposition that our law has accepted.

The case for an evidentiary hearing as to the need for psychiatric assistance in the penalty phase of Harris’ trial will now be spelled out in more detail.

The standard set by Ake. Ake requires that where the defendant’s mental state is at issue, the state “at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” Ake v. Oklahoma, 470 U.S. at 83, 105 S.Ct. at 1096. Failure to conduct an appropriate examination or failure to assist in evaluation, preparation and presentation of the defense is failure to meet the standard set.

That this standard is an essential part of the holding in Ake is underlined by the dissent in that case. Justice Rehnquist states that he would not grant “the broad right to ‘access to a competent psychiatrist who will conduct an appropriate examination, and assist in evaluation, preparation and presentation of a defense.’ ” Id. at 92, 105 S.Ct. at 1101 (dissenting opinion; emphasis in the original). Seven members of the Court thought otherwise. Seven members of the Court granted the right that Justice Rehnquist would have denied.

The State of California argues that Ake is satisfied if the state provides a psychiatrist whose competency is indicated by his professional license. But in psychiatry, as in law, professional licensing is no guarantee that the practitioner will perform competently. For a variety of reasons, summed up in the phrase “human fallibility,” licensed professionals fail on occasion to measure up to professional standards.

The state in effect says, “No matter that the psychiatrist botched his job. All that the defendant had a right to was the opportunity to have a professional who might have been expected to do the job. We have no duty to provide more.” The state's position puts form above substance. The state’s position permits a charade to satisfy its obligations.

Ake begins its analysis of the need for “meaningful access to justice” by speaking of the “basic tools of an adequate defense or appeal.” Id. at 77, 105 S.Ct. at 1093, quoting Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 433, 30 L.Ed.2d 400 (1971). Ake then emphasizes the metaphor of useful implements by twice referring to such “tools.” Id. 470 U.S. at 77, 105 S.Ct. at 1093. The emphasis on tools is an emphasis on function. A non-functioning tool is useless; so is a non-functioning psychiatrist.

The state’s position has never been accepted as to the analogous duty of the state to provide an indigent defendant with counsel. Since this obligation was first enunciated in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), the obligation has been to provide “effective assistance.” Id. 470 U.S. at 71, 105 S.Ct. at 1090. Ineffective counsel is no counsel at all. See Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 836, 83 L.Ed.2d 821 (1985). Ineffective psychiatric aid is no aid at all.

It might be argued that the obligation to provide counsel, being rooted in the specific language of the Sixth Amendment, requires more of the state than the obligation to provide psychiatric assistance. Such an argument would be mistaken. Both the obligation to provide counsel and the obligation to provide psychiatric aid are comparatively late constitutional developments. Neither are required by the express text of the original Constitution or the Bill of Rights. Both have emerged as the Court has concluded, in the light of experience, what must be done in order to preserve those rights that the Bill of Rights guarantees.

The right to counsel of the accused in a trial in a state court, and the obligation of the state to provide effective assistance of counsel to the indigent, are founded on the requirement of the Fourteenth Amendment that no person’s life, liberty, or property be taken “without due process of law.” That succinct and fertile phrase, read by the Court in the light of experience and with reference to the Sixth Amendment’s declaration of federal rights, led the Court to impose upon the states of the United States the duty to provide effective legal assistance to an impoverished defendant. Analogously, due process of law, read by the Court in the light of experience, has led the Court to impose upon the states the duty of effective psychiatric assistance to a defendant otherwise too poor to afford it.

As with the right to counsel, a Sixth Amendment federal right is relevant to the Court’s construction of “due process of law” in the Fourteenth Amendment. The Sixth Amendment guarantees an accused the right “to be confronted with the witnesses against him” and “to have compulsory process for obtaining witnesses in his favor.” The Sixth Amendment in this way guarantees that a trial will be a contest of witnesses. When only the state can afford expert witnesses, and when the testimony of the expert witnesses will be crucial, the trial ceases to be a contest of witnesses. The expert testimony becomes a parade of the state’s experts — in the usual case, all well-meaning, honest, and qualified; but none of them “confronted” by knowledgeable cross-examination, none of them met by expert witnesses in favor of the accused. To assure “fundamental fairness" as Ake puts it; to prevent the trial from being a charade; to preserve the constitutional meaning of a trial as a forum in which witnesses confront the accused and the accused confront the witnesses and, moreover, has witnesses in his favor, the obligation has been put upon each state to give effective psychiatric assistance to the accused against whom the state deploys psychiatric witnesses.

The state’s basic objection to Ake appears to be that the burden imposed by Ake is burdensome. Prior to Ake, the State of California, to comply with state law, needed only to see that the accused be given the minimal funds needed to secure a minimal psychiatric examination by a licensed psychiatrist. Ake, as the state appears to fear, requires that the examination be competently performed and that the psychiatrist be sufficiently compensated that he will assist the evaluation, preparation, and presentation, of the defense.

A Pandora’s box is opened up, the state exclaims. The courts will sink in a morass of post-trial challenges to the effectiveness of the psychiatric assistance provided. Psychiatrists, the state adds, are notoriously apt to differ from each other. A defendant will always be able to get a second psychiatrist to say his first psychiatrist performed incompetently.

A fair appraisal of what has happened in the five years since Ake was decided does not confirm the state’s fears. It is true that permitting a challenge to the psychiatric aid given a defendant must result in enlarging the grounds on which state verdicts may be questioned. The same observation would have been true of the effect of recognizing the right to the effective assistance of counsel.

The analogy with the right to counsel holds also as to the likelihood of disagreement among psychiatrists. Lawyers also are known for their disputatiousness and their ability to carve out positions differing from those of their peers. The potentiality, even likelihood, of one lawyer differing from another lawyer’s view of the effectiveness of trial strategy has not made unworkable the constitutional insistence on effective assistance.

No profession exists on this earth, whether it be theology or law or medicine or judging, in which the professionals do not disagree with each other, sometimes noisily, sometimes deeply. It has never been a barrier to measuring competent performance in such fields that there are such disagreements and disputes, that there are schools of thought, that there are different ways of evaluation and procedure. Psychiatry is no different from any other learned, disputatious profession. As academic institutions have learned to measure effective performance in the contentious disciplines that constitute their curriculum, as courts of law have learned to measure effective performance in criminal trials, so there is no barrier to standards of competent performance being set and applied to the psychiatric assistance furnished the accused.

Ake and the sentencing phase. The defendant in Ake had raised the issue of the denial of psychiatric assistance at his trial and its denial at the penalty phase. The Supreme Court held in a separate section of its opinion that when the state places evidence before the penalty jury of the future dangerousness of the defendant, the defendant has a right to a psychiatrist exactly as in the trial phase. Referring to its discussion of this right at the trial phase, the Court declared: “The foregoing discussion compels a similar conclusion in the context of a capital sentencing proceeding, when the State presents psychiatric evidence of the defendant’s future dangerousness.” Ake v. Oklahoma, 470 U.S. at 83, 105 S.Ct. at 1096.

Again, Justice Rehnquist underlined the holding. Dissenting, he objected that “there was no need to reach issues raised by the sentencing proceeding, so the discussion of this issue may be treated as dicta.” Id. at 92, 105 S.Ct. at 1101 (dissenting opinion). Again, seven members of the Court thought otherwise, not accepting his label of the opinion as dicta. So did the court that tried Ake again in Oklahoma, which, supplying him with psychiatric assistance at the trial stage where he was again found guilty, again supplied him with psychiatric assistance at the penalty phase, where he received a life sentence instead of death. New York Times, February 14, 1986, p. 15.

Whatever art is used to distinguish as dicta the pronouncement of lesser courts, a solemn exposition of constitutional law by the Supreme Court on an issue in the case, although arguably not essential to the disposition of the case, is not to be easily dismissed as dicta. The requirement of a psychiatrist at the penalty phase is a holding of the Court.

A case, famous in history, underscores this conclusion. In Dred Scott v. Sanford, 19 How. 393, 15 L.Ed. 691 (U.S.1857), the Supreme Court held that a descendent of black slaves could never be a citizen of the United States. The Court also held that Congress could not prevent the introduction of slavery into the territories. The second ruling was unnecessary once it was determined that Dred Scott did not have status to sue. Nonetheless, the second ruling was treated by all knowledgeable persons as a holding. The Civil War was not fought over dicta.

The Novelty of Ake. The Supreme Court, prior to Ake, had never enunciated the right of an indigent defendant to the effective assistance of a psychiatrist in the evaluation, preparation and presentation of his case. Thirty-two years earlier the Court had decided United States ex rel. Smith v. Baldi, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549 (1953). In that case the defendant on September 21, 1948 had pleaded guilty to murder. After the plea a question was raised as to the defendant’s sanity. On October 28, 1948 two psychiatrists were called by the defense; on November 5, 1948 a psychiatrist appointed by the court testified. The defendant was found sane and sentenced. The Supreme Court, disposing of the issue as it was raised on habeas corpus, declared: “As we have shown, the issue of petitioner’s sanity was heard by the trial court. Psychiatrists testified. That suffices.” Id. at 568, 73 S.Ct. at 395.

In a dissent joined by two other members of the Court, Justice Frankfurter doubted whether the plea of insanity had been properly rejected, his doubt exacerbated by the newly-discovered fact that the court-appointed expert, the psychiatrist on whom the trial court relied, had himself been committed for incurable mental illness. Id. at 572, 73 S.Ct. at 396-97. Baldi enunciated no right to effective psychiatric assistance. The case was thereafter “often invoked to deny an indigent defendant’s right to psychiatric assistance.” Note, Expert Services and the Indigent Criminal Defendant: The Constitutional Mandate of Ake v. Oklahoma, 84 Mich.L.Rev. 1326, 1353 (1986).

From 1791 to 1985 the Supreme Court had never held that there was a right to effective psychiatric assistance that the states must satisfy by providing such assistance to an indigent accused. If confirmation is needed for a statement evident from the Court’s own decisions, Ake was described in the law reviews as the announcement of “a significant new right,” The Supreme Court — Leading Cases, 99 Harv.L.Rev. 120, 131 (1985) or a “breakthrough,” Note, Expert Services, 84 Mich. L.Rev. at 1329. The decision in its impact was analogized to Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932) and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), see Note, Fourteenth Amendment Due Process and An Indigent’s Right to Court-Appointed Psychiatric Assistance in State Criminal Proceedings, 76 J.Crim.L. and Criminology 1065, 1074 (Winter 1985).

It is no accident that, as of Ake, “very little had been known” about the neuropsy-chiatric status of persons condemned to death. D. Lewis et al., Psychiatric, Neurological and Psychoeducational Characteristics of 15 Death Row Inmates in the United States, AmJ.Psyehiatry 143:838, 839 (July 1986). Very little research had been done because no constitutional right to psychiatric assistance in capital cases had existed. The scientific void matched by the constitutional void.

The limited psychiatric research that has been done since Ake on murderers condemned to death has revealed neurological impairment, psychiatric illnesses, cognitive deficits and parental abusiveness in a significantly high proportion of the condemned. D. Lewis et al., Neuropsychia-tric, Psychoeducational, and Family Characteristics of H Juveniles Condemned to Death in the United States, Am.J.Psychiatry, 145:584 (May 1988). These “potentially mitigating factors” had not been developed when these defendants were sentenced. Id. Only later, “lengthy, painstaking interviews” revealed the problems. Id. The Baldi standard — “[psychiatrists testified”; case closed — had been the rule.

A case “announces a new rule when it breaks new ground or imposes a new obligation on the States or the federal government.” Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 1070, 103 L.Ed.2d 334 (1989). The Ake right and obligation were new.

The impact o/Ake on the fundamental fairness of the determination of the penalty. The rule of Ake being new, it cannot as a matter of course be applied to attack collaterally a state judgment in a habeas corpus proceeding. “Without finality, the criminal law loses its effect.” Teague 109 S.Ct. at 1074. (plurality opinion). The state courts are understandably frustrated when they apply existing constitutional law only to have a federal court discover during a habeas proceeding that there are new constitutional commands the state must apply. Id. at 1075. The rule of Teague has been extended to habeas corpus in capital cases. Sawyer v. Smith, — U.S. -, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990). Accordingly, Ake cannot be applied retroactively here unless it meets the test of an exception created by Teague itself.

The exception that is relevant was created by Teague, referring to Justice Harlan’s separate opinion in Mackey v. United States, 401 U.S. 667, 693, 91 S.Ct. 1160, 1180, 28 L.Ed.2d 404 (1971), which in turn invokes the classic language of Justice Cardozo in Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937). Justice Cardozo had spoken of those requirements that are “implicit in the concept of ordered liberty.” It was those procedures that Justice Harlan said should be applied retroactively. Those procedures were developed, Justice Harlan noted, by “time and growth in social capacity.” Mackey 401 U.S. at 693, 91 S.Ct. at 1180; so that although they involve “bedrock procedural elements,” id., they are nonetheless subject to development. The Teag-ue plurality, quoting this language of Justice Harlan, termed such rules “watershed rules of criminal procedure.” The Teague plurality then limited such rules that could be retroactively applied to “those new procedures without which the likelihood of an accurate conviction is seriously diminished.” Teague 109 S.Ct. at 1076-1077.

The exception has been further refined by the majority opinion of Justice Kennedy in Sawyer: “A rule that qualifies under this exception must not only improve accuracy, but also ‘alter our understanding of the bedrock procedural elements’ essential to the fairness of a proceeding.” Sawyer v. Smith, 110 S.Ct. at 2831 (quoting Mackey; emphasis in Sawyer). As Sawyer makes clear, the Court has “modified Justice Harlan’s test,” so that the new rule if it is to be applied retroactively must both go to bedrock fairness and significantly improve the accuracy of the determination made by the triers of fact. Id.

The majority in the present case doubt that the new rule of Ake is of this fundamental character and that Ake announces a watershed rule. But we need go no further than Ake itself. Ake reached the result it did and indicated its disagreement with Baldi because in Ake the Court resolved affirmatively the question it asked itself: “whether fundamental fairness today requires a different result”. Ake 470 U.S. at 85, 105 S.Ct. at 1097. After Ake, no one could suppose that the sanity of a defendant in a capital case could be determined by the testimony of a licensed psychiatrist of doubtful sanity himself. After Ake, no one could suppose that due process was satisfied because “[psychiatrists testified” or because licensed psychiatrists were made available by the state. In the light of Ake, bedrock fairness requires effective psychiatric assistance if the defendant’s mental state in a capital case is at issue.

The conclusion of Ake itself as to the character of its rule is confirmed by the cases used by Teague to illustrate a new rule for retroactivity purposes. These cases are Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987) (per se rule excluding all hypnotically refreshed testimony infringes impermissibly on a criminal defendant’s right to testify on his behalf); and Ford v. Wainwright, 477 U.S. 399, 410, 106 S.Ct. 2595, 2602, 91 L.Ed.2d 335 (1986) (Eighth Amendment prohibits the execution of prisoners who are insane). Neither of these cases is of the sweeping character of Ake. If they stated new rules, a fortiori, Ake did. In contrast, a rule limiting what a prosecutor may tell a penalty-phase jury about its responsibilities is not a bedrock rule and does not fall within the Teague exception. Sawyer, 110 S.Ct. at 2832.

A question which is open to argument is whether the Ake rule, as applied in the penalty phase, enhances the accuracy of conviction. Literally, as conviction has already been obtained, the sentencing phase can not fit within the exception. But to a person facing death the sentencing phase is as crucial or more crucial than the trial itself. It is difficult to conclude that Teag-ue or Sawyer meant to exclude the sentencing phase when they spoke of accuracy of conviction. In sentencing, as in the determination of guilt, the interest of justice is served by the jury being accurately informed. When a jury is not able to consider and give effect to all the mitigating evidence, there is constitutional error. Penny v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934 at 2948, 106 L.Ed.2d 256 (1989).

The battle of the psychiatrists is as important to the jury in the penalty phase as it is in the guilt phase. Effective psychiatric assistance at the penalty phase enhances the jury’s ability to determine with full information whether death is the appropriate penalty. Without the benefit of such psychiatric opinion there is “a much greater likelihood of an erroneous decision.” Ford v. Wainwright, 477 U.S. 399, 414, 106 S.Ct. 2595, 2604, 91 L.Ed.2d 335 (1986), citing Ake (plurality opinion).

When monstrous deeds are done, such as the killing of the two boys in this case, there is a natural desire to avenge the outrage and to eliminate its perpetrator. At the same time the suspicion, if not the certainty, must occur to reasonable persons that the person who performed such awful deeds is, if not insane, at least laboring under an infirmity of mind. Normal human beings, one thinks, could not engage in such cruel and callous conduct. If these suspicions of mental abnormality were, in fact, confirmed by competent psychiatric testimony that the perpetrator had severe mental impairments, a humane and civilized jury would undoubtedly consider such evidence in mitigation because a humane and civilized jury could not judge a mentally impaired person in the same way it would judge a person free of such tendencies. The final verdict of such a jury cannot, of course, be forecast. But to deprive a jury of information that might materially alter its estimate of the proper penalty is to deprive the jury of information essential to its accurate determination of the appropriate penalty.

The state argues that a conflict of psychiatric experts would not enhance the accuracy of the jury’s work but only generate confusion. The state goes on to describe psychiatry as not a science but a “mass of disputes.” The opinion of the majority does not descend to denigration of psychiatry but the opinion still stresses that all that would result if Harris prevailed in winning a remand on sentencing would be differing psychiatric testimony.

If Harris’ claims should be true, however, the state’s psychiatrist, Dr. Griswold, would be shown by testimony to have been wrong in his diagnosis; and a jury could believe such testimony. If Harris’ claims should be true, Harris would be shown to have been a person with organic brain deficiency; and the jury could believe such testimony. If Harris’ claims should be true, Harris would not be a killer suffering from an antisocial personality that he could have controlled but did not; he would be a criminal who fell below the standard set for measuring fully rational human beings.

The right of the defendant and the duty of the state come into play when the mental state of the defendant is put in issue. The state made Harris’ mental state an issue by Griswold’s testimony. It is not relevant that the issue was raised on rebuttal. Ake does not ask whether the evidence is part of the prosecution’s initial case or whether the evidence is adduced on rebuttal. According to Ake, the right to psychiatric assistance arises when the state presents "evidence of the defendant’s future dangerousness.” Ake v. Oklahoma, 470 U.S. at 83, 105 S.Ct. at 1096. Dr. Griswold testified that an antisocial individual “tends to be immature, emotionally unstable, callous, irresponsible, manipulative, impulsive, egotistical, has an inability to profit from past experience or punishment, projects the blame on someone else, and does not feel true remorse for crimes he commits.” Harris II at 1381. Introducing Griswold’s testimony, the state presented evidence of Harris’ future dangerousness.

Fundamental fairness is the ground of the Ake right. Whether psychiatry is the state’s first or last word, fundamental fairness is violated if only the state has effective psychiatric assistance; the deck is then loaded against the defendant. The testimony that Griswold offered, we expressly held in Harris II, was evidence that the jury could consider as an aggravating factor pointing the jury to the imposition of death. Harris II, 885 F.2d at 1382-84. To hold that with the aid of psychiatric testimony the state may rebut the defendant’s testimony as to his mental state or prove an aggravating factor but that the defendant has no right to psychiatric assistance to challenge that testimony is to mock Ake’s, command of fairness.

The State’s Role in Denying Assistance to Harris. The question remains: Assuming that Harris’ allegations of incompetent analysis by his psychiatrists are true, was he deprived of psychiatric assistance by the state? His counsel selected the psychiatrists. His counsel decided not to present their findings. His counsel made no criticism of their work. His counsel made no request of the trial court for funds to pay for a more extensive psychiatric examination than a $1,000 fee to a psychiatrist would obtain. If Harris’ psychiatrists fell below a standard of competence, was the fault not that of his counsel?

In our system of justice, the lawyer holds the key. If Ryan did his job competently, he necessarily decided that the two psychiatrists had done as much as could be expected, that nothing more needed to be done. If Ryan did his job incompetently, he may have let incompetent work by the psychiatrists slide by. But Harris cannot now attack Ryan’s performance as a lawyer; the issue has been raised and decided against him. Harris II, 885 F.2d at 1367-68. Inability to question Ryan’s work appears to foreclose the opportunity to challenge the work of the psychiatrists Ryan chose and consulted with and was guided by. If competent counsel at the time was satisfied with the psychiatric assistance furnished, that assistance cannot be retroactively made the subject of litigation.

But we are dealing with a case where counsel had no reason to believe that such a constitutional right existed. Harris had been given the minimum afforded by statute. Competent counsel knew nothing more to ask. Ryan did not ask for what he did not know he had a right to ask. It frustrates the retroactivity of the new constitutional right to let his uninformed acquiescence be decisive. In this case, where a new and fundamental right is being retroactively upheld, it is only just that the district court make its own determination of the competence of the psychiatrists. The state will be found to have failed its obligation to assure effective psychiatric assistance if in fact the funds provided and the time allowed were insufficient for the psychiatrists chosen by Ryan and appointed by the court to do their job properly and/or the incompetent work of the state’s own psychiatrist actively misled the psychiatrists acting for Harris.

A second contention meshes with Harris’ challenge to the assistance he received from his own psychiatrists. He challenges Dr. Griswold’s testimony as false. If Harris’ new psychiatric witnesses are right, Griswold was certainly wrong. But Harris presents not a scintilla of evidence that the state in using Griswold presented a witness the state knew to be presenting false testimony, cf. Evans v. Eyman, 363 F.2d 540, 542 (9th Cir.1966). As far as the record shows, the state in good faith put on Gris-wold as an experienced psychiatrist presenting his best analysis of Harris’ psyche. That other psychiatrists disagree with what Griswold said or how he proceeded does not convict the state of misconduct requiring a retrial of the penalty phase.

Harris refines his argument to say that Griswold’s testimony was “materially inaccurate.” He draws help from Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988). In that case a penalty phase jury in Mississippi was accurately informed by the state that the defendant had been convicted of rape in New York; the jury voted death. The defendant then got his New York conviction set aside. The death sentence was reversed because the jury had acted on information that was not false but turned out to have been “materially inaccurate.” Id. at 590, 108 S.Ct. at 1983. So in his case, Harris argues, Griswold’s opinion is shown to be materially inaccurate.

To those who view psychiatry as a soft science or an art full of subjective theories, there is no comparison between Johnson v. Mississippi and the present situation. In Johnson a legal record was changed. What was once accurate became inaccurate. No subjectivity entered into this determination. In contrast, here one psychiatrist contends that another psychiatrist did not do his job; it is only a matter of opinion.

This view of the matter does not, it seems to me, give full weight to the value authoritatively attached to psychiatric opinion by Ake. It may well be that after a hearing of the proffered testimony of Harris’ psychiatrists and their cross-examination by the prosecution, the district court would conclude that the new testimony had not shown that Griswold’s was incompetent. On the other hand, it is entirely possible that this testimony would be so strong and convincing that no one would doubt that Griswold’s had been materially inaccurate. The credibility and force of the proffered testimony cannot be measured in advance. There is a need for the evidence to be presented and tested in court.

But is the right to challenge Griswold’s testimony subsumed within the new Ake right to effective psychiatric assistance? On its face, the challenge to Griswold’s testimony is only a challenge to evidence that could have been challenged when the evidence was offered. But this superficial response is inadequate. Harris alleges that Griswold went unchallenged because he did not know of his Ake right to effective psychiatric assistance. If he had known and exercised that right, Griswold’s testimony would have been impeached. So the Ake right encompasses here the charge that Griswold’s testimony was materially inaccurate.

Rule 9(a). Rule 9(a) 28 U.S.C. § 2254 foil. (1988) requires dismissal if the state has been prejudiced in its ability to respond to Harris’ claim; if prejudice resulted from his delay; and if he did not act with reasonable diligence. The district court held that these three conditions had been satisfied and that Rule 9(a) barred the Ake claim.

The district court was plainly in error. Ake was decided in 1985 after Harris filed his second habeas petition. He was not required to amend his petition to make the Ake claim but could wait for a final decision on the merits. See 1 J. Liebman, Federal Habeas Corpus Practice and Procedure 328 (1988). Harris acted with reasonable diligence once the second petition had been adjudicated.

Rule 9(b). Rule 9(b) requires dismissing of a second or successive petition of habeas corpus if it fails to allege “a new or different ground for relief and the prior determination was on the merits.” 28 U.S.C. § 2254 foil. Rule 9(b) (1988). The contention is made that Harris’ Ake claim was subsumed by his earlier claims of ineffective assistance of counsel and lack of due process. However, as has been shown, his Ake claim has nothing to do with the effective assistance of counsel because counsel was not ineffective in not asserting a constitutional right he did not know Harris possessed. Similarly, as Ake established Harris’ right retroactively there was no basis for Harris raising an Ake claim in his earlier petition for habeas corpus, the latter of which was filed two year before the decision in Ake. The new constitutional right to effective assistance of a psychiatrist is surely not identical with the older constitutional right to effective assistance of a lawyer.

The requirement of an evidentiary hearing. Reliance is put by the majority on dicta in Silagy v. Peters, 905 F.2d 986 (7th Cir.1990). The holding, as distinct from the dicta, is congruent with what is said here. In Silagy federal courts had before them the transcript of the defendant’s trial which showed on its face that the psychiatrists, accused of incompetence because of their credulousness, were in fact not credulous. Evidence, not speculation, supported the rejection of the collateral attack on the psychiatric testimony. In contrast, we are told here by the district court that the testimony of the surviving psychiatrist whom Harris charges with ineffective assistance is unavailable because the doctor is in Africa! The world is now a small place. The evidence of what the challenged psychiatrist did can be obtained and has not been obtained.

In a habeas corpus proceeding, “a federal evidentiary hearing is required unless the state-court trier of fact has after a full hearing reliably found the relevant facts.” Townsend v. Sain, 372 U.S. 293, 312-13, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963). The rule of this circuit, repeatedly stated, is put succinctly as follows:

An evidentiary hearing is mandatory if (1) the petitioner’s allegations, if proved, would establish the right to relief; and (2) the state court trier of fact has not, after a full and fair hearing, reliably found the relevant facts.

Terrovona v. Kincheloe, 852 F.2d 424, 429 (9th Cir.1988). The opinion of the majority from time to time notes an absence of evidence on Harris’ behalf. Harris was not required to produce evidence in his petition. Harris was given no opportunity to produce evidence outside his petition. What Harris was required to do and did do was to make allegations of a certain character and quality. No proof is required of the petitioner in advance of the evidentiary hearing if his allegations are specific and not frivolous. This court in Harris I expressly held that only allegations were required. Harris I, 692 F.2d at 1197.

Harris alleges that the two psychiatrists appointed by the San Diego Municipal Court to assist his defense failed to assist him in accordance with the appropriate standard of care; that they failed to provide competent assistance; that they did not perform adequate medical investigation; and that they thereby deprived him of essential mitigating evidence at the penalty trial and effective cross-examination of, and rebuttal to the testimony of Dr. Gris-wold, the psychiatric witness offered by the state. The allegations are specific. They are not frivolous. If proved they would establish that the constitutional right, announced by Ake, to effective psychiatric assistance in the evaluation, preparation, and presentation of his case was violated. No state court has made findings of fact as to these allegations. An evidentiary hearing is, therefore, mandatory.

Since the amended opinion of this court was filed on November 19, 1990, two relevant legal events have occurred: the panel (Noonan, J., dissenting) remanded the case for an evidentiary hearing on Harris’ claim of an unlawful interrogation by the state; and the United States Supreme Court decided McCleskey v. Zant, — U.S. -, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).

The remand for an evidentiary hearing on Harris’ unlawful interrogation claim was an odd departure from what had already been established by this court in Harris v. Vasquez, 913 F.2d 606, 618 (9th Cir.1990), where we held that it was an abuse of the writ to raise the issue. No more needs to be said on this question. I turn to the effect of Justice Kennedy’s opinion for the Court in McCleskey.

The standard already in existence was that an excuse of failure to raise a constitutional objection required a showing by the petitioner of both cause for the failure and prejudice resulting therefrom. Wainwright v. Sykes, 433 U.S. 72, 87-88, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977). That Harris would be prejudiced by the nonallowance of his Ake claim is clear from what has already been said as to the effect that psychiatric testimony on his behalf might have had on the jury. The question remains whether McCleskey had an impact on Harris’ Ake claim so far as the question of cause is concerned. It is clear that McCleskey does not preclude the claim.

The basic rule was established in Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984): “where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable state procedures.” Id. at 16, 104 S.Ct. at 2910. The rule was reaffirmed in an opinion for the Court by Justice O’Connor, Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). McCleskey pointedly cites Murray for an example of an “objective factor” that would impede counsel’s effort to raise a claim. McCleskey v. Zant, 111 S.Ct. at 1470. Specifically, as Justice Kennedy quotes Murray: “ ‘[A] showing that the factual or legal basis for a claim was not reasonably available to counsel’ ” suffices. Id. The Ake claim is of this character.

The majority in our case does not dispute the fact that the Ake claim was unavailable in the state courts before 1985. The majority writes:

Harris’s conviction became final on October 5, 1981, when the United States Supreme Court denied certiorari. Harris v. California, 454 U.S. 882, 102 S.Ct. 365, 70 L.Ed.2d 192 (1981). Ake was decided nearly four years later, on February 26, 1985, and only then established the rule of access to psychiatric assistance. Up to that time, without Ake, a state court had no reason to conclude that a criminal defendant had a constitutional right to state-funded psychiatric assistance at any stage of a criminal proceeding.

The majority points out that the Supreme Court granted certiorari in Ake on March 19,1984. Ake v. Oklahoma, 465 U.S. 1099, 104 S.Ct. 1591, 80 L.Ed.2d 123 (1984). In a curious disparagement of their own devoted work, counsel for Harris argue that they then could have moved to amend their petition to include an Ake claim. But Harris would have had to abandon his federal petition and return to the state courts. The majority notes that a state court would have had no reason to change its rule until Ake was actually decided on February 26, 1985. Consequently, before that date it would have been futile for Harris to have pursued his Ake claim in the courts of California. By this date, the district court had denied his petition for habeas corpus and notice of appeal had been filed in the Ninth Circuit. The case was no longer within the jurisdiction of the district court. It was too late to amend his petition, and pursuing an appeal he thought meritorious, Harris had no reason to withdraw his federal petition and start all over again in the California system. Harris had cause not to raise his Ake claim in 1985.

Consequently, under the standard clarified by McCleskey, no barrier exists to consideration of Harris’s claim under Ake.

ORDER

Nov. 15, 1991.

Before: ALARCON, BRUNETTI, and NOONAN, Circuit Judges.

Appellant’s motion for a stay of the mandate pending his application for a writ of certiorari is granted. Pursuant to Rule 41(b) of the Rules of Appellate Procedure, the mandate is stayed for a period of 60 days from the date of the filing of this order.

If, during the period of this stay, the Clerk of the Supreme Court shall file a notice that a petition for certiorari has been filed, the stay shall continue until final disposition of the petition for certiorari by the Supreme Court. If the Clerk of the Supreme Court should notify the Clerk of this court that the petition for a writ of certiorari has been denied, the mandate shall issue immediately.