Ronald Sanders v. Ron Davis

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONALD L. SANDERS, No. 17-16511
Petitioner-Appellant,
D.C. No.
v. 1:92-cv-05471-
LJO-SAB
RONALD DAVIS, Warden, San
Quentin State Prison, OPINION
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted June 25, 2021
Pasadena, California
Filed January 13, 2022
Before: M. Margaret McKeown, Richard A. Paez, and
Eric D. Miller, Circuit Judges.
Opinion by Judge Paez;
Dissent by Judge Miller
2 SANDERS V. DAVIS
SUMMARY *
Habeas Corpus/Death Penalty
The panel reversed the district court’s denial of habeas
relief to Ronald Sanders, who was sentenced to death
following his California state murder conviction; and
remanded with instructions to issue a conditional writ of
habeas corpus granting Sanders a penalty phase trial.
Sanders told his attorney, Frank Hoover, that he viewed
a life without parole (LWOP) sentence as unacceptable and
that he did not want Hoover to present a penalty defense.
Viewing Sanders’s objection as a personal choice that was
not his role to challenge, Hoover presented no evidence and
made no argument during the penalty phase. In this appeal,
Sanders contended that Hoover rendered ineffective
assistance at the penalty phase due to Hoover’s failure to
investigate mitigation evidence and properly inform and
advise him about the penalty phase.
In Schriro v. Landrigan, 550 U.S. 465 (2007), the
Supreme Court held that a defendant, who had objected to
the presentation of mitigation evidence, could not establish
that he was prejudiced by counsel’s failure to conduct an
adequate mitigation investigation. The panel recognized that
although Landrigan involved the application of the
restrictive standards prescribed by the Antiterrorism and
Effective Death Penalty Act (AEDPA), which do not apply
in this pre-AEDPA case, Landrigan informs the analysis of
what Sanders must demonstrate to establish prejudice. The
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
SANDERS V. DAVIS 3
panel adopted the Eleventh Circuit’s approach, which
explained that a defendant may establish prejudice even after
he has threatened to obstruct the presentation of mitigation
evidence, looking to whether the petitioner would have
changed his directions to his counsel had counsel adequately
fulfilled his duties in connection with the penalty phase.
The panel wrote that for a defendant to successfully
mount a penalty-phase ineffective assistance of counsel
claim based on insufficient mitigation investigation when
Landrigan applies, the defendant must address two distinct
deficient performance inquiries and two distinct prejudice
inquiries. As for the deficient performance inquiries, a
defendant must satisfy the traditional deficient performance
question outlined in Strickland v. Washington, 466 U.S. 668(1984), that counsel’s performance in conducting the penalty
phase investigation was deficient. Next, the defendant must
show that counsel’s deficient performance affected the
defendant’s decision not to present a penalty defense: here,
the failure to adequately inform and advise Sanders in
preparation for the penalty phase. As to the prejudice
inquiry, the defendant must first show that there is a
reasonable likelihood that he would have changed his mind
and allowed the presentation of a mitigation defense had he
been properly advised and informed. Second, he must also
satisfy that the new mitigating evidence, if presented at trial,
would have led the jury to return an LWOP sentence rather
than death.
Applying this approach to Sanders’s case, the panel
concluded that Hoover performed deficiently in his penalty
phase investigation by failing to perform even a rudimentary
investigation into Sanders’s social history and failing to
obtain reasonably available records. The panel also
concluded that Hoover failed to ensure that Sanders’s
4 SANDERS V. DAVIS
decision to forego a penalty phase defense was informed and
knowing and that Hoover failed to adequately advise
Sanders about the penalty phase over the course of his
representation of Sanders, and thus performed deficiently.
As to prejudice, the panel concluded that there is a
reasonable likelihood that Sanders would have changed his
mind had Hoover informed and advised him about the
penalty phase, and that there is a reasonable likelihood that
at least one juror would have changed her mind and voted to
impose an LWOP sentence.
The panel held that the State forfeited any challenge to
the district court’s decision to vacate the second stage of the
evidentiary hearing.
Judge Miller dissented. He agreed that Hoover’s
performance was deficient because he failed to investigate
mitigating evidence. He also agreed that if mitigating
evidence had been presented to the jury, at least one juror
might have voted for life imprisonment. He wrote, however,
that Sanders’s theory of counsel’s duty to ensure that
Sanders’s decision not to present a penalty phase defense
was “informed and knowing” is contrary to Supreme Court
precedent, and that Sanders did not show anything Hoover
might have told him would have made any difference to his
decision not to present a case of mitigation.
SANDERS V. DAVIS 5
COUNSEL
Nina Rivkind (argued), Berkeley, California, for Petitioner-
Appellant.
Lewis A. Martinez (argued) and Ryan McCarroll, Deputy
Attorneys General; Louis M. Vasquez, Supervising Deputy
Attorney General; Michael P. Farrell, Senior Assistant
Attorney General; Gerald A. Engler, Chief Assistant
Attorney General; Rob Bonta, Attorney General; Office of
the Attorney General, Fresno, California; for Respondent-
Appellee.
OPINION
PAEZ, Circuit Judge:
In 1982, Ronald Sanders was convicted for the murder
of Janice Allen and sentenced to death following a jury trial.
Sanders’s attorney, Frank Hoover, had never represented a
capital defendant before and conducted a minimal penalty
phase investigation. Sanders told Hoover that he viewed a
life without parole (“LWOP”) sentence as unacceptable and
that he did not want Hoover to present a penalty defense.
Viewing Sanders’s objection as a personal choice that was
not his role to challenge, Hoover presented no evidence and
made no argument during the penalty phase.
In this appeal, Sanders challenges the district court’s
denial of his habeas petition under 28 U.S.C. § 2254following an evidentiary hearing. He contends that Hoover
rendered ineffective assistance of counsel at the penalty
phase due to Hoover’s failure to investigate mitigation
6 SANDERS V. DAVIS
evidence and properly inform and advise him about the
penalty phase.
We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and
2253(a). In this pre-Antiterrorism and Effective Death
Penalty Act, Pub. L. 104-132, 110 Stat. 1214 (1996)
(“AEDPA”) case, we reverse and remand. We conclude that
Hoover’s minimal mitigation investigation and his failure to
adequately inform and advise Sanders about the penalty
phase constituted deficient performance. We further
conclude that Hoover’s deficient performance prejudiced
Sanders, because there is a reasonable likelihood that
Sanders would have allowed the presentation of a penalty
defense had Hoover reasonably informed and advised him,
and because there is a reasonable likelihood that at least one
juror would have changed her mind and voted to impose an
LWOP sentence.
I.
A.
We briefly recite the facts of the crime. In doing so, we
draw from the California Supreme Court decision affirming
Sanders’s conviction on direct appeal. See People v.
Sanders, 797 P.2d 561, 565–67 (Cal. 1990).
On January 21, 1981, Sanders participated in a botched
attempt to rob a couple, Dale Boender and Janice Allen, in
Bakersfield, California. 797 P.2d at 565–66. Boender made
a living selling cocaine and marijuana, and had previously
sold drugs to an acquaintance of Sanders, Brenda Maxwell.
Id. at 565. Maxwell, her aunt Donna Thompson, and
Sanders launched a plan to rob Boender of money and drugs.
Id. Boender and Allen arrived at Maxwell’s home to make
a sale, but when the two entered, Sanders began beating
SANDERS V. DAVIS 7
Boender with a piece of a pool stick. Id. at 566. Boender
and Allen escaped. Id. After staying with a relative for two
days, Boender and Allen returned to their apartment and told
their roommates about the assault at Maxwell’s home. Id.Meanwhile, Sanders was concerned that Boender would
identify him, and Maxwell was concerned that Boender
would recognize that she had set him up. Id. The two
discussed these concerns with each other. Id. They picked
up another person, John Cebreros, and then headed to
Thompson’s home. Id. While at Thompson’s home,
Maxwell made calls to people that both she and Boender
knew and claimed that she had been victimized along with
Boender. Id.Around dinnertime on January 23, 1981, the day
Boender and Allen returned to their apartment, Boender
opened the door to his apartment when he heard a knock and
saw Cebreros and Sanders at the door. Id. Sanders was
armed with a gun and pushed Boender to the ground. Id.Boender and Allen were bound and blindfolded. Id. One of
the assailants asked Boender where he kept his cocaine and
removed money from Boender’s pocket. Id. Boender also
heard rummaging around the apartment, muffled talking
(including one of the assailants saying he wanted to leave),
and banging noises. Id. Boender was dragged to a different
room and felt a blow to the head, after which he could not
recall anything more. Id.Boender’s roommates returned home early the next
morning and found Allen’s dead body and Boender lying in
a pool of blood. Id. Allen and Boender had been bound with
electrical cord. Id. Boender had suffered a skull fracture but
was conscious when police arrived. Id. Allen died from a
head wound that fractured her skull and lacerated her brain.
Id. The police arrested Sanders and Cebreros and, among
8 SANDERS V. DAVIS
other charges, they were charged with the murder of Allen
and the attempted murder of Boender.
B.
Following Sanders’s arrest, a Kern County court clerk
asked local attorney Frank Hoover to represent Sanders. 1
Hoover initially declined the appointment due to his lack of
experience representing capital defendants. Hoover later
accepted the appointment, after an attorney with capital
defense experience had been appointed to represent
Cebreros. 2
Hoover had little experience as defense counsel in
serious felony cases and little knowledge of the penalty
phase of a capital case. After graduating from law school in
1972, Hoover joined the Kern County District Attorney’s
office. Hoover tried numerous felony cases as a deputy
district attorney. He worked on several homicide cases
while at the office, but never tried a capital case. After
leaving the District Attorney’s office, he entered private
practice and worked primarily on business litigation and real
estate development. He eventually began to accept criminal
cases, and characterized the cases he worked on as “[s]imple,
easy, petty thefts, drunk driving, assault and battery, [and]
prostitution.” Once he began working on Sanders’s case,
Hoover did not seek out training on defending a capital case,
although such training was available.
1
In summarizing the events following Hoover’s appointment, we
rely on the district court’s factual findings and other evidence presented
in the federal habeas proceedings.
2
Attorney James Faulkner initially represented Cebreros, and was
later replaced with Stanley Simrin.
SANDERS V. DAVIS 9
Early in his preparation for trial, Hoover retained the
services of Dodd Investigations and Security (“Dodd”).
Dodd was owned by a “good friend” of Hoover who had
helped Hoover “get . . . start[ed] in the whole law
enforcement business.” When Hoover retained Dodd, he did
not know whether Dodd had any experience in conducting
investigations for the penalty phase of a capital case. Hoover
did not provide Dodd with any specific directions for its
investigation.
In one of Hoover’s first interviews with Sanders, Sanders
provided false information about his background. Sanders
told Hoover that he had no criminal history and that he had
a master’s degree in petroleum geology. Prior to trial, the
prosecutor disclosed Sanders’s involvement in multiple
robberies in 1970, one of which resulted in a 1971 Orange
County armed robbery conviction. This disclosure surprised
Hoover, who then asked Dodd to look into Sanders’s past
arrests and convictions in Orange County. Although Dodd
identified the witnesses and Sanders’s accomplices in those
cases, neither Hoover nor Dodd interviewed them.
Hoover focused his investigation and trial preparation on
the guilt phase. He told Sanders that “[the] case was
remarkably weak for a first-degree death prosecution.”
Hoover’s assessment was based on the lack of physical
evidence tying Sanders and Cebreros to the crime, as only
the testimony of two unreliable witnesses, Boender and
Maxwell, provided the link. In contrast, Cebreros’s attorney,
Stanley Simrin—an experienced capital defense attorney—
began his preparations for the guilt and penalty phases well
before the trial began. He worked closely with his
investigator, Roger Ruby, on the penalty phase
investigation.
10 SANDERS V. DAVIS
At some point before trial, Sanders informed Hoover that
he was opposed to an LWOP sentence. Sanders did not want
to be executed, but also found LWOP unacceptable and
opposed requesting such a sentence. Hoover later testified
at the evidentiary hearing that “[Sanders] wanted [him] to
work on the case and get an acquittal, which is what
[Sanders] felt the evidence should get for him,” and that
“[Sanders] did not want [him] to do anything that would
result in a sentence of life without the possibility of parole.”
Hoover testified that he did not believe it was his role to
change Sanders’s mind and that he did not try to change
Sanders’s mind. As the trial approached, Hoover believed
that Sanders would resist the presentation of a penalty
defense if he were convicted of capital murder, but Hoover
was not worried about Sanders’s opposition to a penalty
phase defense because he believed acquittal was likely.
The trial ended on August 3, 1981 with a divided jury:
eleven to one in favor of a guilty verdict for Sanders and
Cebreros on all counts. The court scheduled a retrial in late
November 1981. Despite the outcome of the first trial,
Hoover continued to devote a “hundred percent of [his]
energy” to prevailing at the guilt phase of the retrial because
he believed the prosecution’s case was weak.
At the second trial, the prosecution presented testimony
from Maxwell and Boender, as well as physical evidence and
other testimony. Forensic experts testified that Sanders’s
fingerprints had been found on a roll of duct tape in
Maxwell’s home. Boender’s neighbors testified to hearing
noises coming from his apartment that evening, between
8:15 p.m. and 10:00 p.m. The coroner testified to the extent
of the damage to Allen’s skull, including “the large amounts
of blood and brain matter” exposed on her head. Police
officers testified that Maxwell and Boender identified
SANDERS V. DAVIS 11
Sanders and Cebreros in photographic lineups. A friend of
Maxwell’s testified that she had seen Thompson (Maxwell’s
aunt) and Sanders at Maxwell’s home on January 21, 1981,
the night of the botched robbery. A detective testified that
Sanders said that he had been at Thompson’s house with his
wife between 4:00 p.m. and 6:00 p.m. on the night of Allen’s
murder, and that he had stayed home with his wife for the
rest of the evening because he had been sick with the flu.
The defendants presented their own witnesses. The
police officer who first interviewed Boender testified that
Boender had said he was not familiar with the men who beat
him. Similarly, the paramedic who treated Boender in the
ambulance testified that Boender had also said that he had
never seen the men before. A criminalist testified that there
was no blood, hair, or fiber evidence connecting the
defendants to the crime scene. Allen’s grandmother
provided an alternative motive for the killing, testifying that
Allen had said on January 21 that Boender had been beaten
with a pipe in a parking lot by three men to whom he owed
money. Cebreros’s brother, Cebreros’s brother’s on-and-off
girlfriend, and Cebreros’s roommate testified that Cebreros
and Sanders had spent the evening and the night of Allen’s
murder drinking beer and playing chess at Cebreros’s
brother’s home. Boender’s neighbors testified to seeing two
men they were unfamiliar with, who were not Cebreros or
Sanders, around Boender’s apartment on the night of Allen’s
murder. Sanders’s brother, brother-in-law, and his brother-
in-law’s brother testified that Sanders had used duct tape
from Maxwell’s home to tape shut a stove they had moved
from her place.
On January 22, 1982, the jury returned its verdicts,
finding Sanders and Cebreros guilty of the murder of Allen
in the first degree with all four charged special
12 SANDERS V. DAVIS
circumstances, 3 as well as the robbery, burglary, and
attempted murder of Boender. The jury also found Sanders
guilty of the January 21, 1981, attempted robbery. Both
Sanders and Hoover were shocked by the guilty verdicts.
For Sanders, the guilty verdicts made him feel like he “was
in a mine that collapsed around [him], and [he] was
suffocating.” The penalty phase was scheduled to start four
days later on January 26, 1982.
Following the guilty verdicts, Hoover asked Dodd to
conduct a limited investigation of mitigating evidence for the
penalty phase. Dodd prepared a summary of Sanders’s
education and employment, based on information obtained
from Sanders, including from papers located at Sanders’s
house. The one-page summary provided a list of Sanders’s
former employers and noted that Dodd was unable to
corroborate Sanders’s statement that he attended college in
Canada. Dodd contacted one of Sanders’s prior employers,
but “[t]hey said nothing good, all bad.” A few weeks earlier
during the guilt phase, Dodd located Sanders’s father at
Hoover’s request, but Dodd did not interview him. In fact,
neither Hoover nor Dodd interviewed anyone about
Sanders’s background in preparation for the penalty phase.
Hoover also spent this four-day period discussing with
Sanders his objection to presenting a penalty phase defense.
Sanders continued to object. He told Hoover that if he were
to receive an LWOP sentence, he “would climb a prison wall
so the guards would shoot him trying to escape.” Hoover
3
The four charged special circumstances alleged that the murder
was (1) committed during the commission of a robbery, (2) committed
during the commission of a burglary, (3) committed for the purpose of
preventing Allen, a witness to a prior crime, from testifying at a future
criminal proceeding, and (4) “especially heinous, atrocious, and cruel.”
SANDERS V. DAVIS 13
mentioned to Sanders that the judge could order him to
present a penalty defense over Sanders’s objection. In
response, Sanders said “you gotta do what you gotta do, and
I’ll do what I gotta do.” Hoover interpreted this to mean that
Sanders would speak out during the penalty phase if Hoover
attempted to present mitigating evidence. During the period
between the guilt and penalty phases, Hoover did not inform
Sanders of what mitigation evidence could be presented,
partially because Hoover “wasn’t sure” how he would frame
any arguments for an LWOP sentence.
Hoover also sought to verify that Sanders’s resistance to
life without parole was not due to advice from jailhouse
lawyers. After raising this concern with the court, the court
continued the penalty phase from January 26, 1982 to
February 1, 1982. The court appointed Dr. Francis
Matychowiak to evaluate whether Sanders was competent to
make a decision about the penalty phase. After meeting with
Sanders, Dr. Matychowiak opined that Sanders had the
“capacity to understand the nature and purpose of the
proceedings in court and [was] presently able to cooperate in
a rational manner with counsel in presenting a defense.” The
court also appointed attorney Robert Cook, an experienced
criminal defense lawyer, to evaluate whether Sanders had
been influenced by jailhouse lawyers. After Cook met with
Sanders, he told Hoover that Sanders “was serious about his
decision and was not gaming the system to set up an appeal.”
But Cook informed the court that “there was some
ambivalence” in Sanders’s feelings.
Hoover also arranged for Sanders’s parents to speak with
Sanders about his decision. Although Sanders objected to
meeting with his parents, he met with them at Hoover’s
request. Hoover did not explain the nature of the penalty
phase to Sanders’s parents nor ask them to try to change
14 SANDERS V. DAVIS
Sanders’s mind; instead, Hoover wanted to know if Sanders
was serious about his decision, which they reported he was.
Hoover did not attend the meeting with Sanders and his
parents, but the meeting was, according to Sanders’s brother
who heard about the meeting from his father, a disaster as
his parents “picked an old fight from the divorce they hadn’t
finished.”
On February 1, 1982, Hoover requested a second
continuance to “allow [him] more opportunity to try to
consult and counsel Mr. Sanders to get him to change his
essential position,” but the court denied the motion. Sanders
told the judge that he did not want Hoover to present any
evidence, ask any questions of the witnesses called by the
prosecution, nor make a statement to the jury. 4 He did not
want the jury to come back with an LWOP sentence nor a
death penalty sentence. Instead, he wanted to leave the
courtroom and go home even though he knew that was not
possible. Hoover informed the court that Sanders’s “mother,
his father, his grandmother and his sister are all here in this
courtroom” and that he could “put on the evidence,” but that
he wished to respect Sanders’s sincere wishes. Hoover had
not, however, interviewed any of Sanders’s family, and
admitted during federal habeas proceedings that if Sanders
had changed his mind he would have “become very, very
nervous because [he] hadn’t done anything to prepare for
one.”
At the penalty phase, the prosecution presented
testimony from witnesses to the Orange County robberies
4
Sanders initially informed the court that he did not want Hoover to
ask any questions of witnesses called by the prosecution, but later said
that he wanted Hoover to make objections during the prosecutor’s
presentation.
SANDERS V. DAVIS 15
Sanders committed in 1970 as well as testimony from police
officers who arrested and interviewed him. None of the
victims was hurt during the course of the robberies, but, in
two of them, one of the robbers threatened to harm the
victims if they moved or called the cops. In his closing
argument, the prosecutor stressed that the jury instructions
required the jury to impose the death penalty if the
aggravating circumstances outweighed the mitigating
circumstances. Hoover did not present any evidence, so
there were no mitigating circumstances to weigh. The
prosecutor argued that because there were aggravating
circumstances and no mitigating circumstances, “the proper
sentence” was death. The judge instructed the jury that “[i]f
you conclude that the aggravating circumstances outweigh
the mitigating circumstances, you shall impose a sentence of
death.”
During the course of deliberations, the jury sent the court
two notes. First, they asked “What are the consequences if
the jury is unable to arrive at a unanimous decision?” The
court replied that the jury should not consider the
consequences of failing to arrive at a decision but that the
jury’s decision had to be unanimous. Second, the jury asked
for a copy of the jury instructions, which the court provided.
Thirty minutes later, the jury returned its verdict—death.
C.
On direct appeal, the California Supreme Court
invalidated two of the jury’s four special circumstance
findings. 5 People v. Sanders, 797 P.2d at 586. The
5
The court invalidated the “heinous, atrocious, and cruel” and
burglary-murder special circumstance findings. 797 P.2d at 589. The
16 SANDERS V. DAVIS
California Supreme Court affirmed the death sentence,
however, because it concluded that Sanders was not
prejudiced by the consideration of the additional special
circumstance findings. Id. at 590.
In 1993, Sanders filed a federal habeas petition, and the
district court ordered him to exhaust his state remedies for
certain claims. Sanders v. Woodford, 373 F.3d 1054, 1058
(9th Cir. 2004), overruled by Brown v. Sanders, 546 U.S.
212 (2006). The California Supreme Court denied his state
habeas exhaustion petition in 1999. In re Sanders, No.
S043131, 1999 Cal. LEXIS 6112 (Cal. Sept. 1, 1999).
Thereafter, Sanders filed an amended petition raising
numerous claims, which the district court ultimately denied
in 2001. Sanders v. Woodford, No. Civ. F-92-5471-REC-P,
2001 WL 34882452 (E.D. Cal. Aug. 24, 2001). We reversed
and remanded for a new penalty phase trial, concluding that
the jury’s consideration of the two invalid special
circumstances was not harmless. We therefore did not
address Sanders’s other penalty phase claims, including
ineffective assistance of counsel (Claim 38). Sanders v.
Woodford, 373 F.3d at 1067–68. 6 The Supreme Court
reversed, holding that “the jury’s consideration of the invalid
‘special circumstances’ gave rise to no constitutional
violation.” Brown v. Sanders, 546 U.S. at 225. The Court
remanded for consideration of Sanders’s remaining penalty
phase claims.
court upheld the robbery-murder and witness-killing special
circumstance findings. Id. at 586–89.
We affirmed the district court’s denial of the habeas petition as to
6
Sanders’s guilt phase claims. Sanders v. Woodford, 373 F.3d at 1070–
71.
SANDERS V. DAVIS 17
On remand, we held that Sanders was entitled to an
evidentiary hearing on his penalty phase ineffective
assistance of counsel claim (Claim 38). Sanders v. Brown,
171 F. App’x 588, 595 (9th Cir. 2006). Specifically, we
noted that “[t]he facts of Sanders’ opposition to presenting
mitigating evidence are not entirely clear on [the] record,”
and that “we have little evidence as to how adamant Sanders’
refusal was and little evidence that a background
investigation by Hoover would have failed to change
Sanders’ mind.” Id. at 594. We remanded to the district
court for an evidentiary hearing. 7 Id. at 595.
D.
On remand, the district court bifurcated the evidentiary
hearing. The first stage would concern deficient
performance, i.e., “whether counsel’s decision not to
investigate mitigation evidence was deficient.” The second
stage would evaluate prejudice, i.e., “whether, had [Sanders]
changed his mind, the mitigation evidence would have
convinced the jury to sentence him to life without parole.”
The district court conducted the first stage of the
evidentiary hearing in 2008. The evidence that Sanders
presented at the hearing took two general forms:
7
Sanders argues that our decision on remand from the Supreme
Court held that he established that Hoover’s investigation was deficient,
and that the law-of-the-case doctrine precluded the district court from
revisiting that issue on remand. The question we addressed on remand
from the Supreme Court, however, was whether Sanders had raised a
colorable claim of ineffective assistance of counsel and was thus entitled
to an evidentiary hearing, not whether he had established that his counsel
was ineffective at the penalty phase. Sanders v. Brown, 171 F. App’x
at 591; see also United States v. Cote, 51 F.3d 178, 181 (9th Cir. 1995)
(holding that the law of the case doctrine only applies “when the issue in
question was actually considered and decided”).
18 SANDERS V. DAVIS
(1) mitigation evidence that Hoover could have discovered
and presented at the penalty phase in 1982, and (2) evidence,
including expert testimony, that Hoover performed
deficiently at the penalty phase. 8 Some of the proffered
mitigation evidence and expert testimony also related to
whether Hoover had a duty to inform or advise Sanders
about the nature of the penalty phase, what information or
advice he did provide, and whether there was a reasonable
possibility Sanders would have changed his mind and
presented mitigation evidence and argument.
Sanders’s family and friends testified and provided
declarations concerning Sanders’s upbringing and his
relationships with his family. 9 The home Sanders grew up
in was, according to a neighbor and family friend, both
“physically and emotionally” chaotic. Sanders’s parents
were heavy drinkers, frequently had arguments (which
sometimes turned physical), and divorced when Sanders was
young. His father moved out of state, and in the ensuing
years the children moved in between their parents,
grandparents, and aunts and uncles, never living in one place
for long and often being split apart from each other. The
children had little adult supervision, and because money was
tight there was also little food in the home.
8
In reciting the evidence from the evidentiary hearing, we draw
from the district court’s factual findings and the evidence at the hearing.
The State did not contest the evidence beyond introducing portions of
Hoover’s deposition. The district court took the evidence presented at
the hearing as true when deciding the issue of prejudice.
9
The testimony and declarations were extensive. We therefore
provide only a summary of the evidence and do not detail all of the
adverse childhood experiences Sanders experienced.
SANDERS V. DAVIS 19
After the divorce, Sanders’s father did not provide child
support, and his mother worked long hours, leaving little
time for her to spend with the children. As they grew older,
Sanders’s mother noted that her “kids knew more about what
was going on with each other than [she] did.” Sanders’s
mother also battled depression throughout her life, which led
her to isolate and withdraw from her family during major
depressive episodes and attempt suicide.
The Sanders children were subject to repeated physical
abuse from their parents, with Sanders receiving more
frequent beatings. Family members said that Sanders was a
protective brother who took the blame for his siblings and
stood up for them when they were picked on, which led to
some of the additional beatings. As Sanders’s brother
Donald Sanders described the beatings, “it felt like we were
beaten over and over again just for being alive.” Family
members also observed that Sanders was hyperactive, and
was punished for his hyperactivity even though he could not
control it.
Sanders also suffered two instances of head trauma. As
a child, he had a serious bicycle accident for which he was
hospitalized. At 18, Sanders was attacked by a group of
bikers, who reportedly beat his head with baseball bats and
chains. Sanders was hospitalized, his face became
disfigured and swollen, and he “experienced blackouts,
headaches and memory impairment for about a year after the
attack.”
The Sanders children began using drugs as children and
teenagers, with Sanders starting to use drugs and alcohol
around age thirteen. Alcoholism ran in the family, and
Sanders’s mother and father both had a history of substance
abuse.
20 SANDERS V. DAVIS
Family and friends would have also been available to
testify to efforts Sanders made to help his family as an adult.
Arlene Fangmeyer, who in the 1970s dated Sanders’s cousin
Gary, was available to explain how Sanders supported her
when her relationship with Gary was falling apart. Arlene
explained that “[Sanders] was the person I turned to in times
of need,” and that he would pay for her young daughter’s
medication and medical bills when she could not afford to
do so. Sanders was also very close with his maternal
grandmother—who considered him her favorite
grandchild—and took pride in learning about her Native
American heritage. Sanders looked out for his younger
brother, Roger, and put up his own money to post bail for
Roger when he was arrested for drunk driving just days after
the murder for which Sanders was convicted.
Sanders also presented evidence that could have
mitigated his prior robbery conviction and his involvement
in other robberies. Sanders’s accomplices in the 1970
robberies provided declarations explaining that they
committed the robberies to get money to buy drugs, that they
were all using a lot of drugs during that period of time, and
were high at the time of the robberies.
Sanders also presented extensive record evidence. The
available school records corroborated the family’s account
that Sanders moved around repeatedly as a child, and thus
frequently changed schools. There were records from the
California Youth Authority, although some records were
destroyed seven years after his discharge from the military
in 1971, well before the 1982 trial. 10 Sanders also presented
10
Sanders was taken into custody at age thirteen for being
“incorrigible” and placed at the David R. McMillan School, from which
SANDERS V. DAVIS 21
documentary evidence about his brief military service. 11
Additionally, Sanders introduced police records related to
his robbery conviction, and related records from the Orange
County Public Defender’s office, which represented him.
Sanders also presented prison records from the
institution where he served his sentence for the robbery
conviction, which included information about his positive
adjustment to prison. The records noted that Sanders was
“respectful towards staff at all times,” and had “a good
attitude getting along well with everyone.” One supervisor
commended Sanders for “accept[ing] responsibility
unhesitantly” and for his “resourceful approach.” A
psychiatrist noted that Sanders’s “adjustment and behavior,
within the institutional setting, has been quite good,” with
few violations of prison rules.
Further, Sanders presented the declarations of a
psychiatrist and two psychologists, with whom he met
before the evidentiary hearing. They also reviewed
Sanders’s records and supporting declarations. In reviewing
family records and declarations, psychologist Nell Riley,
Ph.D., noted “an unusually high prevalence of mental illness
and learning disabilities” in Sanders’s family, including
“dyslexia, mood disorders including depression, as well as
chronic alcoholism and substance abuse.” Dr. Riley
concluded that the records she reviewed and her assessment
of Sanders indicated a diagnosis of Attention Deficit
Hyperactivity Disorder (“ADHD”). Psychiatrist Pablo
he ran away and was subsequently placed in the California Youth
Authority.
11
Sanders enlisted under his older brother’s name at age 16, and the
Army discharged him when they learned he was underage.
22 SANDERS V. DAVIS
Stewart, M.D., concurred in Dr. Riley’s assessment, and also
noted that Sanders met the diagnostic criteria for Post-
Traumatic Stress Disorder (“PTSD”) and Mixed Substance
Abuse and Dependence.
These experts also provided an extensive social history
of Sanders, linking his childhood and adolescent
experiences, and family history, with his development.
Dr. Kriegler summarized that Sanders “was born into a
family with an extensive history of trauma, poverty, mental
illness, neuropsychiatric impairments, and relational
dysfunction,” and that “the Sanders children were not
provided with the basic level of safety that was needed to
facilitate their psychosocial development in a positive
direction.” Sanders bore a toll greater than his siblings
because “he tended to take the blame for the misdeeds of
others,” and “like many disabled or behaviorally disturbed
children, served as the family scapegoat.” When the parents
divorced, “the Sanders children’s living situation continued
to become more and more chaotic and stressful as they
would be passed around between multiple homes and be
exposed to ongoing and increasing levels of intrafamilial
violence and mental illness compounded by ongoing
socioeconomic stress.”
Dr. Kriegler also connected Sanders’s past trauma to his
stated opposition to a life without parole sentence and
presenting a penalty defense. Dr. Kriegler explained that
Sanders’s ability to make decisions was constrained by the
effects of the “extreme family dysfunction,” and that given
those dynamics Sanders “needed someone to help [] him try
to understand the factors contributing to his views about the
penalty phase, so he could move beyond his ‘stuck’ position
and consider what course of action was in his best interest.”
SANDERS V. DAVIS 23
Similarly, the psychiatry and psychology experts also
explained how Sanders’s neurocognitive deficits may have
contributed to his resistance to life without parole.12
Dr. Stewart explained that “neuropsychological testing
show[ed] impairments in his ability to organize and regulate
his behavior in relation to external factors, to control or
override his impulses in making decisions, and . . . to modify
his problem-solving and envision new approaches.” Further,
Dr. Stewart explained that “Sanders’s cognitive impairments
. . . prevented him from understanding that he did not have
the option of simply doing nothing.” Dr. Kriegler explained
that these deficits meant that on his own “[i]t was not likely
that [Sanders] would be able to envision alternative ways to
approach and analyze his objection to a sentence of LWOP
and to presenting [sic] mitigating evidence, particularly after
sitting with his own views for many months without
discussing them thoroughly.”
Sanders’s past trauma also affected how he dealt with
overwhelming situations, like the guilty verdict. Dr. Stewart
explained that “Sanders’s experience of [] overwhelming
psychological stress was expressed in somatic symptoms,”
which likely caused “Sanders to shut down emotionally and
become cognitively flooded, significantly impeding his
ability to make a rational decision about the penalty phase.”
Similarly, Dr. Kriegler explained that the surprise of a guilty
verdict and Sanders’s existing “difficulties in executive
functioning including response flexibility . . . seriously
12
These experts also cabined the role of Dr. Matychowiak’s pre-
penalty phase examination of Sanders, with Dr. Kriegler explaining that
the examination “was explicitly limited to assessing for overt signs of
mental conditions that could have prevented [Sanders] from rationally
participating in his defense. Dr. Matychowiak did not attempt to
diagnose other conditions and did not have the necessary psychosocial
data to do so.”
24 SANDERS V. DAVIS
imped[ed] his ability to rationally consider and decide
whether LWOP and presenting a penalty defense would be
in his best interest.”
Dr. Kriegler and Dr. Stewart opined, though, that
Sanders’s deficits did not make his objection to life without
parole insurmountable. Dr. Stewart pointed to prison
records that described Sanders as “easily led” and influenced
by those in authority, suggesting that Sanders may have
deferred to the authority of his trial counsel. Dr. Kriegler
explained that trial counsel “could have helped [Sanders]
clarify his reactions to the idea of a penalty phase and
establish the sense of trust and safety necessary for [Sanders]
to go forward with a penalty defense without compromising
his expressions of innocence.”
Sanders also presented testimony and declarations from
three capital defense penalty phase experts, who all opined
that Hoover’s investigation efforts fell below professional
standards at the time of the 1982 trial. Susan Sawyer, the
former penalty phase coordinator for the Alameda County
Public Defender’s office, described the importance of the
penalty phase and the resources available to attorneys at the
time of Sanders’s trial to learn about the importance of
mitigation evidence. Stanley Simrin, the attorney for
Sanders’s co-defendant, submitted a declaration and testified
about his representation of Cebreros, his observations of
Hoover’s representation, and his expert opinion on the
standards applicable at the time. Russell Stetler, a mitigation
expert, explained the standards for mitigation investigations
in 1981–82 and his experience in preparing capital
defendants for the penalty phase of their trials.
The experts explained that properly addressing concerns
about an LWOP sentence requires early and proactive
conversations with the defendant. Sawyer explained that
SANDERS V. DAVIS 25
because the idea of LWOP is “terrifying” to many
defendants, “[i]t takes time – sometimes many, many months
or even longer – [for a client] to adjust to [the] reality [of
LWOP]. And often a client needs his attorney’s, his family’s
or a friend’s help to come to terms with that reality.”
Similarly, Simrin explained that Hoover needed to
“address[] Mr. Sanders’[s] view forcefully when it first
arose,” instead of waiting until the last minute.
The three experts also described in their declarations
how common it is for a client to resist life without parole and
how often a client will change his mind. Stetler explained
that “[a]lmost every capitally charged defendant” he knew at
some point expressed a preference to die rather than spend
life in prison, and that “[v]irtually all capital clients at the
outset want to cling to the hope that the charges are all a bad
dream and they will somehow go away.” Stetler also
explained that in 1982, experienced capital defense attorneys
“knew that defendants in capital cases often rejected and
then had a difficult time coming to terms with the idea of an
LWOP sentence.” Sawyer explained that 70% of death-
eligible clients she interviewed initially said they would
prefer death to LWOP, and thus did not want to present
mitigating evidence, but that every one of her clients who
initially expressed this position ended up changing their
minds. Simrin had eight clients who said they preferred
death to LWOP, and all eight changed their minds. All three
experts opined that there was a strong likelihood Sanders
would have changed his mind if Hoover had competently
represented him in preparation for the penalty phase.
The State did not present any witnesses at the evidentiary
hearing, but did introduce portions of Hoover’s deposition.
Years after the conclusion of the first stage of the evidentiary
hearing, the district court in 2015 and 2016 directed the
26 SANDERS V. DAVIS
parties to file supplemental briefs addressing two issues: the
impact of Schriro v. Landrigan, 550 U.S. 465 (2007), and
whether the mitigation evidence presented at the first stage
of the evidentiary hearing, taken as true, would have
convinced at least one juror to sentence Sanders to life
without parole rather than death.
In June 2017, the district court denied Sanders’s claim of
ineffective assistance of counsel and vacated the second
stage of the evidentiary hearing. The district court ruled that
in light of Sanders’s “refusal to cooperate in and obstruction
of the defense,” Hoover’s limited investigation was not
deficient. Further, the district court held that Landrigan
precluded Sanders from establishing prejudice because
Sanders “engaged in active interference of the penalty
defense.” The district court also concluded that even if
Landrigan did not bar Sanders from establishing prejudice,
the proffered mitigating evidence had “only minor
mitigating value relative to the totality of evidence
developed in the record,” and thus Sanders “ha[d] not
demonstrated a reasonable likelihood that the sentencing
verdict would have been different absent Hoover’s alleged
deficiencies.”
II.
Because Sanders filed his habeas petition before the
effective date of AEDPA, pre-AEDPA law governs our
review of Sanders’s claim. Brown v. Sanders, 546 U.S.
at 215 n.1. Under pre-AEDPA law, we consider a claim of
ineffective assistance of counsel to be a mixed question of
law and fact, and we review de novo. Summerlin v. Schriro,
427 F.3d 623, 628 (9th Cir. 2005) (en banc). We review the
district court’s findings of fact for clear error. Id.SANDERS V. DAVIS 27
III.
A.
To demonstrate ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668 (1984), a defendant
must show that his trial counsel’s performance was deficient
and “that the deficient performance prejudiced the defense.”
Id. at 687. A deficient penalty phase investigation may form
the basis of an ineffective assistance of counsel claim. See
id. at 690. “[C]ounsel has a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary.” Id. at 691.
Counsel’s “particular decision not to investigate must be
directly assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel’s
judgments.” Id.When a defendant objects to the presentation of a
mitigation defense, however, the process outlined in
Strickland takes on an additional consideration. In Schriro
v. Landrigan, 550 U.S. 465 (2007), the Supreme Court held
that the defendant, who had objected to the presentation of
mitigation evidence, could not establish that he was
prejudiced by counsel’s failure to conduct an adequate
mitigation investigation. Although Landrigan involved the
application of AEDPA’s restrictive habeas standards, which
do not apply here, we recognize that Landrigan informs our
analysis of what Sanders must demonstrate to establish
prejudice. See 28 U.S.C. § 2254(d).
In Landrigan, counsel “had carefully explained to
Landrigan the importance of mitigating evidence,” id.
at 479, yet Landrigan refused to allow the presentation of
mitigation evidence. Counsel had attempted to present
testimony from two women—Landrigan’s ex-wife and birth
28 SANDERS V. DAVIS
mother—but Landrigan instructed both women not to
testify. Id. at 469. Landrigan interrupted his attorney’s
attempt to proffer to the court what mitigating evidence the
women would have testified to, and informed the court “I
think if you want to give me the death penalty, just bring it
right on. I’m ready for it.” Id. at 470. The Supreme Court
explained that because Landrigan objected to the
presentation of mitigation evidence, “counsel’s failure to
investigate further could not have been prejudicial under
Strickland.” Id. at 475.
We have previously identified situations in which a
defendant’s limited resistance to presenting a penalty phase
defense did not require application of Landrigan’s prejudice
holding. Distinguishing the defendant’s actions in
Landrigan, we have held that the Landrigan prejudice
holding does not apply when the defendant “did not threaten
to obstruct the presentation of any mitigating evidence.”
Hamilton v. Ayers, 583 F.3d 1100, 1119 (9th Cir. 2009);
Stankewitz v. Wong, 698 F.3d 1163, 1170 n.2 (9th Cir. 2012)
(“Stankewitz II”) (concluding that Landrigan did not apply
because the defendant “did not interrupt or try to sabotage
trial counsel’s presentation”). Similarly, the Third Circuit
has held that Landrigan does not apply when the defendant
opposes only the introduction of certain kinds of mitigation
evidence. See Blystone v. Horn, 664 F.3d 397, 426 (3d Cir.
2011); Thomas v. Horn, 570 F.3d 105, 128–29 (3d Cir.
2009).
Here, the district court found that “the record suggests
Petitioner’s penalty objection had a broad sweep,” and that
Hoover believed that Sanders “was determined to foul up
any penalty defense by being demonstrative, standing up in
court and acting out so that the jury would not be
sympathetic toward him.” This factual finding that Sanders
SANDERS V. DAVIS 29
threatened to obstruct the penalty phase, and that Hoover
took the threat seriously, is not clearly erroneous. Thus,
Sanders’s opposition to the entire penalty phase resembles
the defendant’s opposition in Landrigan more than the
limited objections present in Hamilton or Stankewitz II.
However, as the Eleventh Circuit has explained, in
certain circumstances a defendant may establish prejudice
even after he has threatened to obstruct the presentation of
mitigation evidence consistent with Landrigan. See
Cummings v. Sec’y for Dep’t of Corr., 588 F.3d 1331, 1359–
60 (11th Cir. 2009); Pope v. Sec’y, Fla. Dep’t of Corr.,
752 F.3d 1254, 1265–67 (11th Cir. 2014); Krawczuk v.
Sec’y, Fla. Dep’t of Corr., 873 F.3d 1273, 1294–96 (11th
Cir. 2017); see also Gilreath v. Head, 234 F.3d 547, 551–52
(11th Cir. 2000) (establishing, pre-Landrigan, a framework
for demonstrating ineffective assistance of counsel when a
defendant opposes the presentation of a penalty defense).
The Eleventh Circuit has explained that a habeas court must
determine whether an obstructionist defendant “would have
refused to permit the introduction of mitigation evidence in
any event,” Cummings, 588 F.3d at 1360 (emphasis added).
This determination is necessary to assess prejudice, meaning
the prejudice prong includes two separate legal inquiries.
[A] petitioner who has told trial counsel not
to present mitigation evidence must show a
reasonable probability that, if he had been
more fully advised about the mitigating
evidence and its significance, he would have
permitted trial counsel to present the
evidence at sentencing. Beyond that, the
petitioner must also establish that this new
mitigating evidence, if heard by the jury,
30 SANDERS V. DAVIS
would have with a reasonable probability led
the jury to recommend life instead of death.
Pope, 752 F.3d at 1266 (citing Gilreath, 234 F.3d at 551–
52).
Post-Landrigan, we have not yet been presented with a
case that implicates Landrigan’s prejudice holding. We are
persuaded by the Eleventh Circuit’s reasoning and adopt its
approach when reviewing cases that fall within the ambit of
Landrigan, such as this one. 13
This approach is consistent with Landrigan, which
addressed whether the discovery of additional mitigation
evidence alone would have caused Landrigan to change his
mind about the penalty phase. Of paramount concern to the
Supreme Court in applying AEDPA’s deferential habeas
standards was the district court’s finding that “regardless of
what information counsel might have uncovered in his
investigation, Landrigan would have interrupted and refused
to allow his counsel to present any such evidence.” 550 U.S.
at 477. Thus, the Court concluded, “Landrigan could not
demonstrate prejudice under Strickland.” Id.In Landrigan, however, the Supreme Court did not
address whether counsel’s professional obligations beyond
13
We agree with Judge Martin’s concurrence in Krawczuk that
“Landrigan did not, however, establish a rule that if any defendant tells
his lawyer he wants no mitigation evidence presented, he can never
establish prejudice under Strickland v. Washington unless he satisfies the
two-part standard required [by the Eleventh Circuit].” 873 F.3d at 1301
n.2 (Martin, J., concurring) (internal citation omitted) (citing the Third
Circuit’s decision in Blystone, 664 F.3d at 424–26, which held that
Landrigan did not apply when a defendant objected only to the
presentation of testimony from family members).
SANDERS V. DAVIS 31
conducting a competent mitigation investigation could have
changed his client’s mind. 14 We have repeatedly ascribed
duties related to the penalty phase beyond the duty to
investigate mitigating evidence, including the duty to inform
and advise a client in preparation for the penalty phase trial,
which we discuss in Part III.C., infra. Under Landrigan, the
failure to uncover mitigating evidence cannot alone establish
prejudice when a defendant objects to presenting mitigation
evidence, but Landrigan does not preclude a defendant from
establishing that had counsel not performed deficiently in
other respects, he would have changed his mind. We cannot
summarily conclude that “the defendant would have refused
to permit the introduction of mitigation evidence in any
event,” Cummings, 588 F.3d at 1360 (emphasis added),
when a defendant alleges that counsel deficiently performed
in other respects that could have influenced his decision
whether to present mitigation evidence.
Thus, we look to whether “Petitioner would have
changed his directions to his counsel” had counsel
adequately fulfilled his duties in connection with the penalty
phase. See Gilreath, 234 F.3d at 552. The petitioner “must
identify the acts or omissions of counsel” that are alleged to
constitute ineffective assistance of counsel at the penalty
phase. Strickland, 466 U.S. at 690. And we look to whether
“counsel’s representation fell below an objective standard of
14
As explained in Part III.C., infra, the Supreme Court’s statement
that it “[has] never imposed an ‘informed and knowing’ requirement
upon a defendant’s decision not to introduce evidence,” 550 U.S. at 479,
did not undercut our caselaw concerning counsel’s obligation to ensure
that a client’s waiver of a penalty phase defense is informed and knowing
because the Supreme Court in Landrigan was framed by AEDPA’s
limitations on habeas review.
32 SANDERS V. DAVIS
reasonableness” as of the time of counsel’s performance. Id.
at 688.
This approach is consistent with Strickland and
Landrigan. Strickland explains that, to establish prejudice,
the defendant must show a “reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different.” 466 U.S. at 694.
When counsel commits errors in addition to conducting a
deficient mitigation investigation, we look to see whether
those additional errors, combined with the deficient
investigation, establish a reasonable probability that the
result of the proceeding would have been different.
In sum, for a defendant to successfully mount a penalty-
phase ineffective assistance of counsel claim based on an
insufficient mitigation investigation when Landrigan
applies, the defendant must address two distinct deficient
performance inquiries and two distinct prejudice inquiries.
As for the deficient performance inquiries, a defendant
must satisfy the traditional deficient performance question
outlined in Strickland, that counsel’s performance in
conducting the penalty phase investigation was deficient.
See 466 U.S. at 690–91. Next, the defendant must show that
counsel’s deficient performance affected the defendant’s
decision not to present a penalty defense: here, the failure to
adequately inform and advise Sanders in preparation for the
penalty phase.
Turning to the prejudice inquiry, the defendant must first
show that there is a reasonable likelihood that he would have
changed his mind and allowed the presentation of a
mitigation defense had he been properly advised and
informed. See Pope, 752 F.3d at 1266. Second, he must also
satisfy the traditional prejudice question—that there is a
SANDERS V. DAVIS 33
reasonable likelihood that the new mitigating evidence, if
presented at trial, would have led the jury to return an LWOP
sentence rather than death. Id.; see also Cummings, 588 F.3d
at 1360.
We apply this approach to Sanders’s case, and conclude
that Sanders has established that Hoover performed
deficiently at the penalty phase and that his deficient
performance prejudiced Sanders. The district court erred in
concluding otherwise.
B.
We first consider whether Hoover performed deficiently
in his penalty phase investigation. We conclude that he did
because he failed to perform even a rudimentary
investigation into Sanders’s social history and failed to
obtain reasonably available records. 15
Although the Supreme Court has “declined to articulate
specific guidelines for appropriate attorney conduct and
instead [has] emphasized that ‘[t]he proper measure of
attorney performance remains simply reasonableness under
prevailing professional norms,’” Wiggins v. Smith, 539 U.S.
510, 521 (2003) (quoting Strickland, 466 U.S. at 688),
“general principles have emerged regarding the duties of
15
Sanders argues that Hoover performed deficiently by failing to
request a psychological evaluation prior to Dr. Matychowiak’s
evaluation. As Hoover explained in his September 2007 declaration, the
sole purpose of Dr. Matychowiak’s interview was to determine
Sanders’s competence to forego the penalty phase, and not to develop
mitigation evidence. Because we conclude that Hoover deficiently
performed in failing to conduct a social history investigation, we do not
address whether Hoover was also deficient in failing to request a
psychological evaluation earlier in the proceedings.
34 SANDERS V. DAVIS
criminal defense attorneys that inform our view as to the
‘objective standard of reasonableness’ by which we assess
attorney performance, particularly with respect to the duty to
investigate,” Summerlin, 427 F.3d at 629. Both the Supreme
Court and our court have long referenced the American Bar
Association (“ABA”) Standards for Criminal Justice “as
indicia of the obligations of criminal defense attorneys.” Id.;
see also Strickland, 466 U.S. at 688 (citing ABA Standards
for Criminal Justice 4-1.1 to 4-8.6 (2d ed. 1980) (“The
Defense Function”)). Our inquiry does not end with the
standards, however, as the ABA Standards are “only guides
to what reasonableness means, not its definition.” Bobby v.
Van Hook, 558 U.S. 4, 8 (2009) (internal quotation marks
and citation omitted).
Neither Sanders’s actions nor the Supreme Court’s
holding in Landrigan excused Hoover from conducting a
mitigation investigation. Although a client may direct his
attorney not to conduct a mitigation investigation, that
direction does not relieve counsel of the obligation to
conduct an investigation. “[A] lawyer’s duty to investigate
is virtually absolute, regardless of a client’s expressed
wishes.” Silva v. Woodford, 279 F.3d 825, 840 (9th Cir.
2002); Summerlin, 427 F.3d at 638; see also Andrews v.
Davis, 944 F.3d 1092, 1111 (9th Cir. 2019) (“A client may
be ‘fatalistic or uncooperative, but that does not obviate the
need for defense counsel to conduct some sort of mitigation
investigation.’” (quoting Porter v. McCollum, 558 U.S. 30,
40 (2009)).
The initial false leads that Sanders gave Hoover did not
excuse Hoover’s failure to conduct a mitigation
investigation. See Rompilla v. Beard, 545 U.S. 374, 381
(2005) (holding that counsel’s minimal investigation was
deficient even though the defendant was “actively
SANDERS V. DAVIS 35
obstructive by sending counsel off on false leads”). Indeed,
we have said that a capital defense attorney “has an
affirmative duty not to simply accept the facts as they might
be presented at first blush, but rather to unearth for
consideration at the sentencing phase all relevant mitigation
information.” Doe v. Ayers, 782 F.3d 425, 437 (9th Cir.
2015) (internal quotation marks, citation, and alteration in
original omitted). Unlike in cases where the defendant
interfered with the mitigation investigation by refusing to
participate in mental health examinations, barring attorneys
from interviewing family members, or refusing to provide
information, see Owens v. Guida, 549 F.3d 399, 407–08 (6th
Cir. 2008); Cummings, 588 F.3d at 1336, Sanders did not
instruct Hoover to limit his investigation or refuse to provide
information. To the contrary, Sanders gave Hoover “free
reign” to look into his background. Sanders knew Hoover
was speaking to his wife and family members and did not
object, and in the first couple weeks of Hoover’s
representation, Sanders directed him towards a suitcase of
files that could be used as mitigation evidence. The false
leads at the beginning of their relationship do not excuse
Hoover’s limited investigation or render it reasonable.
Further, Landrigan did not change an attorney’s
obligation to conduct a mitigation investigation when a
client objects to presenting a mitigation defense. Landrigan
only concerned Strickland’s prejudice prong. See 550 U.S.
at 480–81. The Supreme Court did not hold that as a result
of a defendant’s objection to a penalty phase defense, his
counsel’s minimal investigation was reasonable. See id.at 475–79; see also Krawczuk, 873 F.3d at 1301 n.2
(Martin, J., concurring) (“Landrigan never addressed the
performance prong of Strickland, and so it did nothing to
alter trial counsel’s perennial ‘obligation to conduct a
36 SANDERS V. DAVIS
thorough investigation of the defendant’s background.’”
(quoting Williams v. Taylor, 529 U.S. 362, 396 (2000)).
Because neither Sanders’s expressed desires, nor
Landrigan, excused Hoover from conducting a reasonable
mitigation investigation, we evaluate whether Hoover’s
investigation was reasonable under the circumstances.
Although there are no hard and fast rules for what
constitutes a reasonable mitigation investigation, we have
emphasized the need for counsel to investigate the
defendant’s social background and to obtain related personal
records. 16 To fulfill this obligation, counsel must make
efforts to discover any reasonably available mitigating
evidence, “includ[ing] inquiries into social background and
evidence of family abuse.” Summerlin, 427 F.3d at 630; see
also Wiggins, 539 U.S. at 524–25. Hoover made no effort to
understand Sanders’s social background and family
dynamics. Hoover did not interview a single person about
Sanders’s background, even though many of Sanders’s
family members were present at his trial, and Hoover spoke
with those family members for other purposes. In contrast,
Simrin began his representation of Cebreros by working with
his investigator to locate and interview as many people as
they could who knew Cebreros because, in Simrin’s words,
16
The relevant ABA standards also confirm this duty. “It is the duty
of the lawyer to conduct a prompt investigation of the circumstances of
the case and to explore all avenues leading to facts relevant to the merits
of the case and the penalty in the event of conviction.” ABA Standards
for Criminal Justice 4-4.1 (2d ed. 1980). Investigation of “[i]nformation
concerning the defendant’s background, education, employment record,
mental and emotional stability, family relationships, and the like” as well
as “mitigating circumstances surrounding the commission of the offense
itself” is “essential” to the defense attorney’s role at sentencing. ABA
Standards for Criminal Justice 4-4.1, commentary, p. 4-55 (2d ed. 1980).
SANDERS V. DAVIS 37
“the lawyer must be educated about the client in order for the
lawyer to competently represent the defendant in the penalty
phase.”
Had Hoover conducted even a minimal social history
investigation through interviews with available family
members, he would have discovered a case full of “classic
mitigation evidence.” Stankewitz II, 698 F.3d at 1172
(defining classic mitigation evidence as including a “tortured
family history” and beatings from an alcoholic parent
(quoting Summerlin, 427 F.3d at 631)); see also Summerlin,
427 F.3d at 635 (referring to “an abundance of available
classic mitigation evidence concerning family history,
abuse, physical impairments, and mental disorders”). As
described above, the evidence presented at the evidentiary
hearing detailing Sanders’s unstable childhood, beatings
from his parents, a history of alcoholism and drug abuse in
the family, his own alcohol and drug abuse beginning in
childhood, physical injuries, and difficulties in school
present the “kind of troubled history [the Court has] declared
relevant to assessing a defendant’s moral culpability.”
Wiggins, 539 U.S. at 535 (citation omitted). Hoover’s
failure to conduct any social history investigation constitutes
deficient performance.
Relatedly, Hoover was deficient in failing to obtain
relevant personal records. “[The penalty phase]
investigation should include examination of mental and
physical health records, school records, and criminal
records.” Correll v. Ryan, 539 F.3d 938, 943 (9th Cir. 2008);
see also Rompilla, 545 U.S. at 385 (concluding that attorney
was deficient in failing to review prior conviction file). In
Sanders’s case, there were reasonably available prison,
school, juvenile delinquency, and military records.
38 SANDERS V. DAVIS
Hoover’s failure to secure prison and juvenile
delinquency records ran contrary to professional standards at
the time of trial. See ABA Standards for Criminal Justice 4-
4.1 (2d ed. 1980) (“The investigation should always include
efforts to secure information in the possession of the
prosecution and law enforcement authorities.”). The
prosecution informed Hoover of Sanders’s armed robbery
conviction before the first trial, giving Hoover many months
before the penalty phase to obtain and review Hoover’s
prison and CYA records. Hoover’s only explanation for
failing to obtain and review Sanders’s juvenile records was
that he “did not think of [Sanders’s] juvenile record as a
source of information for the penalty phase.” See Correll,
539 F.3d at 945 (concluding that “counsel’s failure to obtain
[] relevant records,” including California Youth Authority
records, “constituted deficient performance”). As detailed
above, the juvenile records would have supported the social
history detailing Sanders’s chaotic and traumatic childhood.
School and military records—while not necessarily
adding to information available from family members—
would have supported the picture of a chaotic childhood.
The available school records would have corroborated
family members’ accounts that Sanders moved around
frequently, never staying at one school for very long.
Sanders’s military records would have corroborated family
members’ testimony about Sanders’s ability to find some
success in structured environments.
Finally, contrary to the district court’s conclusion, the
joint defense strategy to proceed to trial quickly did not
excuse Hoover’s deficient mitigation investigation. Nor was
there a significant lack of investigatory resources available
to Hoover. Counsel may make strategic choices about paths
to pursue in a mitigation investigation, but not whether to
SANDERS V. DAVIS 39
ignore the penalty phase. See Wiggins, 539 U.S. at 526(explaining that “the unreasonableness of counsel’s
conduct” was underscored by the fact that counsel’s “failure
to investigate thoroughly resulted from inattention, not
reasoned strategic judgment”); cf. ABA Standards for
Criminal Justice 4-8.1, commentary, p. 4-104 (2d ed. 1980)
(explaining in non-capital sentencing context that counsel
“will need to make some independent investigation” to
prepare for sentencing). Hoover had an obligation to prepare
for the penalty phase even if he believed that Sanders had a
chance of an acquittal. See Jackson v. Calderon, 211 F.3d
1148, 1161–62 (9th Cir. 2000) (concluding that counsel’s
performance was deficient when counsel had conducted a
minimal penalty phase investigation because counsel “never
expected [his client]’s trial to reach the penalty phase”). And
any cooperation between Hoover’s investigation and
Simrin’s investigator, Roger Ruby, would have been
irrelevant to the penalty phase, because each defendant
needed to present their own penalty defense. As for
investigatory resources, Hoover had access to similar
resources as Simrin, who prepared a robust penalty
investigation, and minimal resources were required to
conduct social history interviews with members of Sanders’s
family, some of whom he spoke with for other reasons.
In sum, Hoover’s penalty phase investigation was
unreasonable under the circumstances, and his failure to
conduct an adequate investigation is not excused by case law
or Sanders’s conduct.
C.
We next turn to Hoover’s duty to inform and advise
Sanders about the nature of the penalty phase. We review
for clear error the district court’s findings about the attempts
Hoover made to inform or advise Sanders, and review de
40 SANDERS V. DAVIS
novo whether Hoover’s efforts constituted deficient
performance. See Summerlin, 427 F.3d at 628. We conclude
that Hoover failed to ensure that Sanders’s decision to forego
a penalty phase defense was informed and knowing and that
Hoover failed to adequately advise Sanders about the penalty
phase over the course of his representation of Sanders, and
thus performed deficiently.
A capital defense attorney has a duty to ensure that his
client’s decision not to present a penalty phase defense is
informed and knowing. 17 Jeffries v. Blodgett, 5 F.3d 1180,
1198 (9th Cir. 1993); Silva, 279 F.3d at 838; Williams v.
Woodford, 384 F.3d 567, 622–23 (9th Cir. 2004);
Summerlin, 427 F.3d at 638; Hamilton, 583 F.3d at 1119.
There are multiple aspects to ensuring a decision is informed
and knowing, but the objective is to ensure that the defendant
comprehensively understands what he or she is giving up by
declining to present a penalty defense. 18
We first note that in Landrigan, the Supreme Court did
not overrule our court’s caselaw concerning counsel’s duty
to ensure that a client’s decision not to present a penalty
17
We also note that our court’s use of the term “informed and
knowing” refers to counsel’s actions to ensure his client’s decision to
forego a penalty phase defense is based on an educated understanding of
the penalty phase and evidence, not an in-court colloquy with the trial
judge.
Our dissenting colleague suggests that Landrigan established that
18
any “informed and knowing” requirement does not demand more of
counsel than the “minimal guidance” Landrigan’s counsel told the
sentencing court he provided his client. Dissent at 59–60. But the
passage the dissent points to in Landrigan at best stands for the
proposition that the defendant need not have “a specific colloquy with
the court” to establish that his decision not to offer mitigating evidence
was “informed and knowing.” See Landrigan, 550 U.S. at 479.
SANDERS V. DAVIS 41
phase defense is informed and knowing. Landrigan, which
was decided under AEDPA, asked whether the informed and
knowing requirement recognized by our court was clearly
established law, not whether such a requirement was
improper. Under AEDPA, “clearly established Federal law”
concerns the Supreme Court’s “decisions as of the time of
the relevant state-court decision.” Williams v. Taylor,
529 U.S. at 412. Thus, the question before the Court “was
not, strictly speaking, whether a knowing and voluntary
requirement should be applied in this context, but rather,
whether the Court had already articulated such a requirement
at the time of Landrigan’s first post-conviction hearing.” 19
Dale E. Ho, Silent at Sentencing: Waiver Doctrine and a
Capital Defendant’s Right to Present Mitigating Evidence
after Schriro v. Landrigan, 62 Fla. L. Rev. 721, 731 (2010)
(emphasis omitted). The Court’s statement that it has not yet
imposed an informed and knowing requirement is not
“clearly irreconcilable” with our court’s precedent requiring
a defendant’s decision to forego a penalty defense to be
informed and knowing. Miller v. Gammie, 335 F.3d 889,
900 (9th Cir. 2003) (en banc); see also Hamilton, 583 F.3d
at 1119 (concluding, in a post-Landrigan case, that a
19
The Supreme Court’s citation in Landrigan to Iowa v. Tovar,
541 U.S. 77, 88 (2004), suggests the Court may have been referring to
the necessity of a colloquy before the court to ensure the defendant’s
waiver of a penalty defense is proper, rather than counsel’s duty in the
context of an ineffective assistance of counsel claim to ensure a decision
to forego the penalty phase is informed and knowing. Post-Landrigan,
our sister circuits have acknowledged that Landrigan did not hold that
counsel’s duty or a colloquy before the court is improper, see Clark v.
Thaler, 673 F.3d 410, 422 (5th Cir. 2012), and have declined to address
whether such a requirement exists, see Thomas v. Horn, 570 F.3d 105,
129 n.9 (3d Cir. 2009) (“[W]e offer no opinion on whether a waiver of
the right to present mitigating evidence must be ‘informed and
knowing.’”).
42 SANDERS V. DAVIS
defendant “did not make a knowing and informed decision
not to present mitigation evidence”).
As we explain below, Hoover failed to ensure that
Sanders’s decision not to present a penalty phase defense
was informed and knowing. First, Hoover failed to
adequately inform Sanders about the structure of the penalty
phase. Counsel is deficient if he makes only “minimal
efforts to explain” the structure and significance of the
penalty phase. Cf. Correll, 539 F.3d at 943. In his
September 2007 declaration, Hoover admitted that at the
time of trial he “was not well-versed in the rules and
procedure for the penalty phase” and testified at the
evidentiary hearing that he only explained the penalty phase
“in a nutshell.” “[N]o lawyer can perform adequately in
ignorance of the applicable law.” ABA Standards for
Criminal Justice 4-1.1, commentary, p. 4-9 (2d ed. 1980).
This principle extends to knowledge of the procedures
governing the penalty phase of a death penalty case. Sanders
could not have been adequately informed about the
procedure or defense he was foregoing when his attorney did
not understand all the mechanics of that procedure and only
provided a basic explanation of the penalty phase as he
understood it.
Sanders’s lack of understanding of the basic mechanics
of the penalty phase was apparent before the penalty phase
began. Dr. Matychowiak’s report indicated that Sanders
desired neither a death nor LWOP sentence, and that Sanders
told him during the examination that he “fe[lt] the court will
just simply have to decide on something or anything other
than that.” 20 Sanders’s failure to understand that the court
The district court observed that “this statement viewed in context
20
seems to suggest merely a reassertion of his objection to LWOP and
SANDERS V. DAVIS 43
could not impose a sentence other than LWOP or the death
penalty demonstrates that his decision to forego a defense
was not informed and knowing.
Second, Hoover failed to educate Sanders about the two
possible sentences. Counsel must “be familiar with the
sentencing alternatives available to the court” and fully
explain to his client “[t]he consequences of the various
dispositions available.” ABA Standards for Criminal Justice
4-8.1(a) (2d ed. 1980). Further, counsel should “carefully
explain” what each sentencing option “will mean for the
defendant personally.” ABA Standards for Criminal Justice
4-8.1, commentary, p. 4-103 (2d ed. 1980). And counsel has
a duty to “fully educate [the client] about the ramifications
of his decision” not to present a penalty defense, Silva,
279 F.3d at 840–41, including the full consequences of each
sentencing option.
Hoover, however, “never explicitly explained the
sentences or what they meant” because it “seemed obvious.”
But the prison conditions for LWOP and death row prisoners
are not the same. Sanders understood LWOP to mean that
insistence upon his innocence.” But in his meeting with
Dr. Matychowiak, Sanders stated that “[h]e [did] not want the attorney
to argue in favor of a death penalty.” That statement and others during
the meeting demonstrate that Sanders was confused about the appeal
process from death and LWOP sentences. Dr. Matychowiak wrote that
Sanders told him that “if he has a life without parole sentence he would
be more stuck in that even if there were an appeal or a review they could
not give a more strict sentence” and that “if one had a death sentence and
there were a review or an appeal, one could get a lighter sentence.” In
context, it appears Sanders may have believed he could receive less than
an LWOP sentence if his death sentence were reversed on appeal, and/or
that death could not be imposed if his conviction was reversed and his
case re-tried. In short, Dr. Matychowiak’s report demonstrates overall
confusion about the sentences and the process of appellate review.
44 SANDERS V. DAVIS
there was no possibility he would ever get out of prison, but
Sanders did not have any idea “where [he] would be
imprisoned, what kind of cell [he would] live in, or what
kind of programs and privileges [he] might have” with an
LWOP sentence. Sanders was not in a position to determine
that LWOP was just as unacceptable as a death sentence
without knowing anything about the conditions of
confinement under either sentence.
Third, Hoover failed to inform Sanders of a significant
mitigation factor that he could have presented to the jury—
lingering doubt. Counsel must inform his client of the key
mitigation factors that could be presented in the penalty
phase. See Correll, 539 F.3d at 943 (faulting counsel for
failing to explain to his client the “possibility of a mitigation
defense arising from [the defendant]’s drug use, brain
damage, family history, or psychiatric record”). Although
lingering doubt may not be a mitigation factor in every death
penalty trial, considering “the facts of [this] particular case,
viewed as of the time of [Hoover]’s conduct,” Strickland,
466 U.S. at 690, his failure to inform Sanders that he could
argue lingering doubt as a mitigation factor was
unreasonable.
A lingering doubt defense was available, and Hoover’s
failure to inform Sanders of the availability of the defense,
or explain how it fit with the facts of his conviction, was not
a strategic decision. 21 “Generally, we credit the statements
of defense counsel as to whether their decisions at trial
21
The California Supreme Court held in 1964 that lingering doubt
as to a capital defendant’s guilt could be asserted as a mitigating factor
in the penalty phase. People v. Terry, 390 P.2d 381, 387–88 (Cal. 1964),
overruled on other grounds by People v. Laino, 87 P.3d 27, 35 (Cal.
2004)).
SANDERS V. DAVIS 45
were—or were not—based on strategic judgments.” Doe,
782 F.3d at 445. Hoover stated in his September 2007
declaration in federal habeas proceedings that he “did not
think, at the time of the trial, that under California law
lingering doubt could be argued in mitigation at a capital
penalty phase,” and also testified at the evidentiary hearing
that he “was not well-versed in the rules and procedure for
the penalty phase.”
A lingering doubt defense would have been appropriate
in this case for two reasons. First, there was a lack of
objective evidence connecting Sanders to the crime, and he
had presented an alibi defense. The presence of a holdout
juror in the first trial indicated that some jurors may have
harbored some doubt as to his guilt, even if he was ultimately
convicted. And Hoover had strongly believed that there was
not enough evidence to convict Sanders. Second, a lingering
doubt defense would have addressed some of Sanders’s
concerns about the penalty phase. As Susan Sawyer
explained in her declaration, “[g]iven Mr. Sanders’s
insistence on his innocence, it would have been crucial to
explain that the mitigation case did not have to concede
guilt” because “any lingering doubt the jury had about its
guilt phase verdicts could be considered as a mitigating
factor.” For all of the above reasons, Hoover was deficient
in failing to explain to Sanders the possible mitigation
defenses.
Fourth, Hoover failed to explain the types of mitigation
evidence available and how it could be used. We have held
that a defendant’s decision not to present mitigation
evidence is informed and knowing when counsel has
explained the available evidence and the ramifications of not
presenting such evidence. See Jeffries, 5 F.3d at 1198(finding that a defendant’s decision not to present a penalty
46 SANDERS V. DAVIS
defense was informed and knowing as counsel had discussed
available mitigation evidence and “the ramifications of
failing to present the evidence”); Williams v. Woodford,
384 F.3d at 623. Although counsel is not required to inform
his client of every possible piece of mitigation evidence or
possible arguments, counsel must explain the general
contours of the available evidence, and the purposes
different types of evidence would serve. Here, Hoover did
not explain the basic contours of possible evidence, as he did
not inform Sanders of the availability or possible uses of any
mitigation evidence. 22 Indeed, it is doubtful that Hoover
could have adequately informed Sanders of the possible
evidence had he sought to do so because his bare bones
investigation failed to uncover any meaningful information.
This failure to inform Sanders of the possible mitigation
evidence, along with the other matters discussed above, all
contributed to Hoover’s failure to ensure that Sanders’s
decision to forego a penalty phase defense was informed and
knowing.
Not only did Hoover have a duty to inform Sanders about
a penalty phase defense and the ramifications of foregoing
it, he also had a duty to advise Sanders throughout the course
of trial preparations, so that Sanders could make informed
decisions on matters related to his defense. Attorneys must
22
The district court noted that Hoover had informed the trial court
that he had explained to Sanders the “basic tenants [sic] of what [the]
evidence would consist of.” But Hoover was not prepared to present any
evidence. He testified at the evidentiary hearing that he “never got into
the list of witnesses” with Sanders. Even if Sanders had “[known] his
family members, his parents, grandmother Ruth and sister Suzanne were
available in court at the penalty trial to offer testimony on his behalf” as
the district court found, Sanders could not have known what they would
have testified about because Hoover had not discussed their testimony
with them.
SANDERS V. DAVIS 47
“maintain constitutionally adequate contact [and] engage in
constitutionally adequate consultation” in preparation for the
penalty phase. Correll, 539 F.3d at 943; see also Summerlin,
427 F.3d at 639 (explaining counsel must consult with his
client prior to the penalty phase and “provide the advice
necessary” to aid the client in making a decision about
presenting a mitigation defense); cf. ABA Standards for
Criminal Justice 4-3.8, commentary, p. 4-51 (2d ed. 1980)
(discussing the duty to keep a client informed). As the expert
defense attorneys explained in their declarations, it takes
clients time—sometimes months—to fully comprehend and
make deliberate decisions about the penalty phase, thus
requiring counsel to start conversations with a defendant
about the penalty phase early on in the litigation.
Hoover, however, waited until January 1982 to advise
Sanders on the penalty phase. 23 As he described in his
declaration, “[Sanders]’s position about the possible
sentences did not become a problem until the jury returned
its guilty verdict at the end of the second trial. And I did not
23
The district court found that Hoover had discussed the penalty
phase with Sanders three times prior to trial, which is supported by the
record. The district court’s characterization that these early
conversations included an explanation of the penalty phase, however, is
not supported by the record. The district court found that “[a]s early as
Petitioner’s first trial (resulting in the mistrial), Hoover discussed with
Petitioner the penalty phase process ‘in a nutshell,’” and cited to
Hoover’s testimony at the evidentiary hearing. But the referenced
testimony concerned a conversation Hoover had with Sanders in between
the guilty verdict and the penalty phase of the second trial. In his
September 2007 declaration, Hoover explained that in the pre-trial
conversations about the penalty phase, “he never explicitly explained the
sentences or what they meant,” and he “did not explain the definition or
role of mitigation, or the definition or role of aggravation, the sentencing
instruction that the jury would follow in making its penalty choice, or the
judge’s role in deciding the sentence.”
48 SANDERS V. DAVIS
turn my attention in earnest to this issue until it was clear
there would be a penalty phase.” But Sanders had expressed
resistance to LWOP early on in the attorney-client
relationship. Hoover’s failure to advise Sanders about the
penalty phase throughout the course of his representation
also constituted deficient performance.
In sum, Hoover’s failure to ensure that Sanders’s
decision to forego a penalty defense was informed and
knowing, and his failure to adequately advise Sanders about
the penalty phase throughout the course of the litigation,
constituted constitutionally deficient performance.
D.
We review de novo whether Sanders was prejudiced by
Hoover’s failure to inform and advise him about the penalty
phase. To that end, we must determine whether there is a
reasonable likelihood that Sanders would have changed his
mind had Hoover provided effective assistance. See
Summerlin, 427 F.3d at 638; Pope, 752 F.3d at 1265–67. We
conclude that there is a reasonable likelihood he would have
changed his mind.
Sanders’s initial position, that an LWOP sentence was an
unacceptable option, is a common response from defendants
facing a death sentence, and one that experienced attorneys
can usually overcome. As described by Simrin, Sawyer, and
Stetler, many death-eligible defendants initially reject the
idea of an LWOP sentence, but most change their minds with
competent representation. As the experts explained
addressing a client’s concerns about an LWOP sentence
requires conversations over the course of the representation.
Unsurprisingly, following Hoover’s failure to inform and
advise Sanders about the penalty phase, Hoover’s last-
minute efforts to address Sanders’s concerns about the
SANDERS V. DAVIS 49
penalty phase had no effect. All three experts opined that had
Hoover performed reasonably, there is a strong likelihood
that Sanders would have acted like nearly every other capital
defendant in his situation and changed his mind. Initial
resistance to an LWOP sentence is not uncommon, but that
resistance, in most cases, can be overcome with the
assistance of a competent lawyer.
Mitigation evidence that Hoover could have discovered
could have also reminded Sanders that his life had value. As
Sawyer explained, “[s]ometimes, the client’s seeing the
results of positive mitigating evidence – for example,
learning how much his generosity mattered to a friend –
begins to soften his resistance to a penalty defense.” Arlene
Fangmeyer, who had dated Sanders’s cousin, explained that
“[Sanders] was the person [she] turned to in times of need”
when she struggled to pay bills and take care of her daughter.
Sanders’s siblings also noted that he was fiercely protective
of them. Informing Sanders of this evidence could have
softened his resistance to presenting a penalty phase defense.
Further, there is nothing in Sanders’s background that
suggests he would have been the rare defendant who would
not have changed his mind. Dr. Pablo Stewart, the
psychiatrist, explained that “Mr. Sanders’s cognitive
impairments . . . prevented him from understanding that he
did not have the option of simply doing nothing.” At the
same time, Sanders was “easily led” and responded to
authority figures like Hoover. Hoover testified that he and
Sanders had a good relationship, which would have given
him a step up in developing a rapport with Sanders in
discussions about the penalty phase and the ramifications of
foregoing a defense, had Hoover pursued those discussions.
Hoover’s decision to wait until after the guilty verdict to
address the penalty phase in earnest, along with Sanders’s
50 SANDERS V. DAVIS
opposition to it, increased the odds that Sanders would not
change his mind. As explained by Dr. Stewart and
Dr. Kriegler, the “overwhelming psychological stress”
combined with his “difficulties in executive functioning
including response flexibility” led him to “shut down
emotionally and become cognitively flooded.” Sanders’s
defiant opposition to presenting a penalty phase defense
following the guilty verdict likely would have looked
different had Hoover adequately advised him over the course
of their attorney-client relationship. In light of attorney
Cook’s assessment after he spoke with Sanders prior to the
penalty phase that “there was some ambivalence” in
Sanders’s feelings, it was not a foregone conclusion that
Sanders would have remained opposed to presenting
mitigation evidence, including lingering doubt as to his
involvement in the killing.
Further, Sanders’s case does not resemble situations in
which courts have concluded that there was insufficient
evidence to conclude that the defendant would have changed
his mind. In addition to the testimony and declarations from
legal experts, Sanders presented his own affidavit stating he
would have changed his mind had he been competently
informed about the penalty phase, as well as declarations
from mental health experts who opined that he would have
changed his mind. 24 In contrast, in cases like the Eleventh
Circuit’s decision in Pope, the petitioner “offered no
affidavit, deposition, or statement from himself, his counsel,
24
In Sander’s September 2000 declaration, he stated: “Had I
understood at the time I decided to forego a penalty defense what I know
now about the choices in presenting mitigating evidence and had my trial
attorney, Frank Hoover, discussed the possible mitigating evidence with
me, I would have decided to go ahead and present a penalty defense
including at least some mitigation evidence.”
SANDERS V. DAVIS 51
or even from his mental health experts claiming that the
petitioner would have changed his instructions to counsel if
advised of mitigation evidence.” 752 F.3d at 1267; see also
Krawczuk, 873 F.3d at 1296 (“[T]he record is devoid of any
affidavit, deposition, or statement from Krawczuk, [his
attorney], the mental health experts, or Krawczuk’s friends
and family even suggesting that Krawczuk would have
instructed [his attorney] differently had he been fully aware
of all the available mitigation evidence.”). And unlike the
defendant in Cummings, 588 F.3d at 1343, who maintained
an objection to LWOP through the beginning of state habeas
proceedings, Sanders viewed his opposition to LWOP as
“emotional and stupid” and challenged his death sentence
“since the very beginning of [his] appeals.”
We cannot state with absolute certainty that Sanders
would have changed his mind. Such certainty, however, is
not necessary. Because there is a reasonable likelihood
Sanders would have changed his mind, he was prejudiced by
Hoover’s failure to inform and advise him about the penalty
phase.
E.
At the final step of our Strickland analysis, we evaluate
the second prejudice inquiry—concerning whether the
mitigation evidence would have swayed at least one juror to
vote for LWOP. We conclude that there is a reasonable
likelihood that the penalty phase verdict would have been
different had Hoover undertaken a reasonable mitigation
investigation and presented a penalty defense.
“In assessing prejudice, we reweigh the evidence in
aggravation against the totality of available mitigating
evidence” to determine whether “there is a reasonable
probability that at least one juror would have struck a
52 SANDERS V. DAVIS
different balance.” Wiggins, 539 U.S. at 534, 537. Here, the
mitigation evidence discussed above relating to Sanders’s
social history and lingering doubt about whether he
committed the murder could have reasonably resulted in at
least one juror changing his or her mind.
Evidence introduced at the evidentiary hearing, which
we discussed above, reveals the “same sort of classic
mitigation evidence” that we have found sufficient to
establish prejudice. 25 Stankewitz II, 698 F.3d at 1172;
Summerlin, 427 F.3d at 635. Hoover’s failure to present
reasonably available evidence concerning Sanders’s
unstable childhood, abuse from his parents, history of
alcoholism and drug abuse, and difficulties in school
prevented the jury from considering the “kind of troubled
history we have declared relevant to assessing a defendant’s
moral culpability.” Wiggins, 539 U.S. at 535 (citation
omitted).
The available mitigation evidence also included positive
character evidence that the jury could have considered. See
Avena v. Chappell, 932 F.3d 1237, 1251 (9th Cir. 2019)
(explaining that positive character testimony from friends
and family, in addition to mitigation evidence detailing
childhood abuse, “would have countered the prosecution’s
characterization of [the defendant] as nothing more than a
‘killing machine’ with a ‘malignant heart’”). As discussed
above, Arlene Fangmeyer could have noted Sanders’s
25
Because we do not consider whether Hoover was deficient in
failing to request a psychiatric or psychological evaluation of Sanders,
we do not discuss the available mental health evidence when discussing
whether mitigation evidence would have changed a juror’s vote.
SANDERS V. DAVIS 53
importance to her “in times of need,” and Sanders’s siblings
could have testified to his protectiveness.
Further, Hoover could have also argued lingering doubt
as a mitigation factor. The prosecution’s case at the guilt
phase rested on the testimony of two unreliable witnesses,
and there was no physical evidence connecting either
defendant to the crime scene. 26 The jury’s inability to reach
a verdict at the first trial supports the assertion that the case
against Sanders was relatively weak. As lingering doubt is
“an extremely effective [penalty phase] argument for
defendants in capital cases,” Cox v. Ayers, 613 F.3d 883, 898
(9th Cir. 2010) (quoting Lockhart v. McCree, 476 U.S. 162,
181 (1986)), and the prosecution’s case against Sanders was
far from overwhelming, it is reasonably likely that the
outcome of Sanders’s penalty trial would have been different
if he had raised a lingering doubt as a mitigation factor.
Although, as in all capital cases, the circumstances of the
murder were disturbing and serious, and the death of
Ms. Allen was an immense tragedy, Sanders’s crimes were
not especially egregious “[w]hen compared with the
offenses of other death-eligible defendants.” Doe, 782 F.3d
at 447. The California Supreme Court invalidated two of the
four aggravating circumstances, leaving only the robbery-
murder and witness-killing special circumstance findings.
People v. Sanders, 797 P.2d at 586–89. We have found
prejudice in situations involving more serious aggravating
factors upon presentation of similar mitigation evidence.
See, e.g., Avena, 932 F.3d at 1251–52 (finding prejudice
26
Brenda Maxwell had admitted to lying on multiple occasions,
including at the preliminary hearing. Dale Boender suffered amnesia
from his head injuries and had no recollection of many events in the days
prior to and weeks after the attack.
54 SANDERS V. DAVIS
when the defendant “committed two brazen murders during
a night of malicious criminal activity” and “was implicated
in the violent death of another inmate” and “assaulted a
police officer” while awaiting trial for the two murders);
Correll, 539 F.3d at 941, 951–55 (finding prejudice where
defendant was guilty of triple murder); Douglas v.
Woodford, 316 F.3d 1079, 1083, 1090–91 (9th Cir. 2003)
(finding prejudice where defendant sexually assaulted two
teenage girls and then strangled them to death). Further, it
is unclear who between Sanders and Cebreros struck the
fatal blows, a point Hoover could have raised to argue
Sanders was less culpable than Cebreros. 27 Finally, the
prosecutor did not seek the death penalty for Sanders’s
codefendant. See Silva, 279 F.3d at 849 (noting that an
accomplice was sentenced to LWOP when evaluating
prejudice).
Nor was the evidence of Sanders’s past armed robberies
particularly aggravating. These crimes were over a decade
old by the time of the trial. Furthermore, Sanders did not
harm anyone in the commission of the robberies and, in fact,
one of the victims testified that he cooperated in preventing
harm to any of his customers. Sanders’s jail records from
the 1971 armed robbery conviction also would have shown
that he was “very cooperative” with law enforcement and
that he had had no intention of hurting anyone and had only
committed the crimes for drugs and food. See Doe, 782 F.3d
at 447 (describing the defendant’s criminal record as light
when “his only previous conviction was for an armed
27
The prosecutor argued that Sanders was most likely the actual
killer of Allen because Boender had testified that Sanders had been the
one to initially throw him to the ground. But Cebreros was the larger of
the two men, and Boender had initially told law enforcement that
Cebreros was the one who had pushed him to the ground.
SANDERS V. DAVIS 55
robbery, in which no one was injured, committed when he
was a juvenile”).
Sanders’s prior conviction records and related prison
records could also have steered the jury away from a death
sentence. Sanders’s prison records would have shown that
he had adjusted well to prison life and had been commended
for both his work at his job placements and his enthusiasm
in the classroom setting. “This evidence would have aided
the jury in determining whether [Sanders] would be a danger
to other inmates or prison officers if sentenced to life in
prison.” Ainsworth v. Woodford, 268 F.3d 868, 874 (9th Cir.
2001).
The jury’s initial hesitance in reaching a verdict in the
penalty phase also weighs towards a finding of prejudice. 28
See Stankewitz v. Woodford, 365 F.3d 706, 724–25 (9th Cir.
2004) (“Stankewitz I”). A jury note indicating hesitance in
reaching a penalty phase verdict “suggest[s] that a death
sentence for [Sanders] was not a foregone conclusion.”
Silva, 279 F.3d at 849–50. Here, the jury asked the trial court
“What are the consequences if the jury is unable to arrive at
a unanimous decision?” This initial hesitance only adds
further support to a finding of prejudice when reweighing the
evidence.
Further, there is a reasonable possibility that the jury
concluded or determined that they had no choice but to
impose a death sentence. The jury was instructed that if it
“conclude[d] that the aggravating circumstances outweigh
28
In our review of whether Sanders was prejudiced by Hoover’s
deficient investigation, we do not consider the juror declarations offered
by Sanders, nor do we decide whether they are admissible under Federal
Rule of Evidence 606(b).
56 SANDERS V. DAVIS
the mitigating circumstances, [it] shall impose a sentence of
death.” And the prosecutor told the jury that this instruction
meant that “the proper sentence” was death because there
were no mitigating circumstances and thus there was
“nothing to weigh because everything falls on one side of the
weighing process.” Because Hoover waived argument, no
one challenged this explanation. And it seems likely that the
jury followed the instructions because the jury asked for a
copy of them during deliberations.
“In this case, the jury recommended the death penalty
without knowing anything about [Sanders]’s troubled
background.” Noguera v. Davis, 5 F.4th 1020, 1043 (9th
Cir. 2021). Sanders’s “counsel did nothing to
counterbalance the prosecutor’s view of [Sanders] or to
portray [Sanders] as a human being, albeit one who had
committed [a] violent crime[].” Andrews, 944 F.3d at 1099.
When considering the abundance of classic mitigation
evidence, the possibility of a strong lingering doubt defense,
the relatively weak aggravating circumstances, and the
jury’s apparent hesitance in imposing a death sentence
despite instructions that appeared to give them no other
choice, we conclude that there is a reasonable likelihood that
at least one juror would have struck a different balance.
Wiggins, 539 U.S. at 537. Thus, Sanders suffered sufficient
prejudice to warrant setting aside his death sentence.
IV.
The State argues that a remand to the district court to
conduct the originally proposed second stage of the
evidentiary hearing is necessary so that the State can contest
the mitigation evidence presented at the first stage. By
failing to object to the district court’s order that the court
would take as true the proffered mitigation evidence for the
purpose of litigating the prejudice question, the State
SANDERS V. DAVIS 57
forfeited any challenge to the district court’s decision to
vacate the second stage of the evidentiary hearing. Puckett
v. United States, 556 U.S. 129, 134 (2009).
V.
Competent representation in a capital case requires more
than just advocacy at the guilt phase of trial. Hoover had no
prior experience in capital defense, made no effort to educate
himself about the penalty phase, and made next to no effort
to prepare for the penalty phase until days before it began.
Unsurprisingly given this lack of knowledge, Hoover
conducted a bare bones investigation and failed to
adequately inform and advise Sanders about the penalty
phase. This failure resulted in the absence of any penalty
defense in a case with a relatively weak prosecution case,
and a client who did not know what he was giving up by
foregoing a penalty defense.
We therefore reverse the district court’s denial of habeas
relief and remand with instructions to issue a conditional
writ of habeas corpus granting Sanders a new penalty phase
trial.
REVERSED and REMANDED with instructions.
MILLER, Circuit Judge, dissenting:
Ronald Sanders claims that he received ineffective
assistance of counsel during the 1982 trial at which he was
convicted of first-degree murder and sentenced to death. He
must show not only that counsel’s performance was deficient
but also that the deficient performance prejudiced him.
Strickland v. Washington, 466 U.S. 668, 687 (1984). I agree
58 SANDERS V. DAVIS
with Sanders that the performance of his counsel, Frank
Hoover, was deficient because Hoover failed to investigate
potential mitigating evidence. See Rompilla v. Beard,
545 U.S. 374, 384–90 (2005); Wiggins v. Smith, 539 U.S.
510, 524–28 (2003). I also agree that if mitigating evidence
had been presented to the jury, at least one juror might have
voted for life imprisonment. But there remains a gap in
Sanders’s theory: Simply investigating mitigating evidence
would not have made any difference if Sanders did not want
that evidence to be presented to the jury. See Schriro v.
Landrigan, 550 U.S. 465, 477 (2007); Cox v. Del Papa,
542 F.3d 669, 683 (9th Cir. 2008).
The district court found that Sanders opposed the
presentation of any mitigating evidence, and that finding is
amply supported by the record. Hoover testified that Sanders
was so opposed to any mitigation case that he threatened to
obstruct Hoover from presenting one: “[H]e was determined
to foul it up. He said . . . that he would act out; that he would
do something that would cause the jury to be—to be ill-
disposed toward him.” For example, Sanders said that “he
would jump up and say things so that he would be disliked
by the jury.” In Hoover’s view, those were not idle threats:
“[W]hen he said he was going to stand up and act out[,] his
tone, his presence, the way he expressed it to me made me
believe that it was likely to happen.” Sanders was willing to
obstruct his own penalty defense because he found the
prospect of life in prison without the possibility of parole to
be “unacceptable.” As Hoover described it, Sanders “found
this . . . whole idea of living his entire life in a cell that could
go on for 50 years—he thought that was immoral,” and he
believed that it “would be a worse sentence than being
killed.” Indeed, Sanders threatened that if sentenced to life
imprisonment, he would stage an escape attempt so that he
would be shot by guards.
SANDERS V. DAVIS 59
In an effort to establish ineffective assistance
notwithstanding the district court’s finding, Sanders says,
first, that Hoover failed to discharge his duty to ensure that
Sanders’s decision not to present a penalty phase defense
was “informed and knowing,” and, second, that if Hoover
had carried out that duty, there is a reasonable likelihood that
Sanders would have changed his mind. Neither step in that
argument is valid, so I would affirm the district court’s
denial of habeas relief.
First, Sanders’s theory of counsel’s duty is contrary to
Supreme Court precedent. The Court has never held that
counsel has a duty to ensure that a client’s decision not to
present mitigating evidence is “informed and knowing.” It
said precisely that in Landrigan: “We have never imposed
an ‘informed and knowing’ requirement upon a defendant’s
decision not to introduce evidence.” 550 U.S. at 479(emphasis added). To be fair, a statement that the Court has
not imposed a requirement is not quite the same as a
statement that no such requirement exists. What is more
significant is the way the Court resolved the case: It assumed
without deciding that an “informed and knowing”
requirement existed, and it then determined that the
requirement was satisfied because counsel had “explained to
Landrigan the importance of mitigating evidence,
‘especially concerning the fact that the State is seeking the
death penalty,’” and had also “explained to Landrigan that
as counsel, he had a duty to disclose ‘any and all mitigating
factors . . . to th[e] [c]ourt for consideration regarding the
sentencing.’” 550 U.S. at 479 (alterations in original); see
also id. (“[W]e have never required a specific colloquy to
ensure that a defendant knowingly and intelligently refused
to present mitigating evidence.”). The decision in Landrigan
establishes that whatever “informed and knowing”
60 SANDERS V. DAVIS
requirement might exist, it does not demand more than the
minimal guidance that Landrigan’s counsel provided.
If our earlier cases had required more of counsel, they
would have been abrogated by Landrigan. But they did not.
Although some of our cases used the phrase “informed and
knowing,” they considered an issue very different from that
presented here. Specifically, they involved defendants who
impeded the presentation of a mitigation case in limited
ways but who did not object to presenting any penalty
defense at all. We held that a defendant’s opposition to
presenting some forms of mitigating evidence does not
eliminate the potential prejudice from counsel’s failure to
investigate other evidence. In Silva v. Woodford, for
example, the defendant asked counsel not to contact his
parents to develop information about his childhood, but he
did not express opposition to presenting other forms of
mitigating evidence, such as testimony from his siblings and
friends. 279 F.3d 825, 838 (9th Cir. 2002). And in
Summerlin v. Schriro, the defendant objected to presenting
the testimony of a psychologist, but we emphasized that he
never “instructed his attorney not to present any penalty
phase defense whatsoever.” 427 F.3d 623, 637 (9th Cir.
2005). That, of course, is precisely what Sanders did.
Hoover provided far more information to his client than
did Landrigan’s counsel. He explained “the significance of
the sentencing hearing,” Correll v. Ryan, 539 F.3d 938, 943
(9th Cir. 2008), by telling Sanders that it was “a proceeding
that would be only interested in the disposition between life
without [parole] and death.” He informed Sanders of some
of the types of mitigation evidence he could present at the
penalty phase, including background and character
evidence. And he told Sanders the consequences of not
presenting a case in mitigation—“that if he was going to
SANDERS V. DAVIS 61
decide it he was going to decide it and actually get the death
penalty.”
The suggestion that Hoover left Sanders inadequately
informed is particularly odd given the vigor of Hoover’s
efforts to educate Sanders about the choice he faced. Hoover
arranged for a psychiatrist to examine Sanders to make sure
that he was mentally competent. The psychiatrist’s notes
reveal that Sanders knew that “[t]he two possibilities are life
without parole or death” and that Sanders had “a list of
twenty-six or seven reasons written out for his point of view”
that life without parole was unacceptable. Hoover tried to
disabuse Sanders of mistaken beliefs he thought might be
motivating his decision, such as the idea that he would be
better positioned to appeal if sentenced to death. Hoover
explained that if Sanders were sentenced to life without
parole he could be held somewhere other than San Quentin
and that he could be pardoned or his sentence commuted.
After finding that his own efforts had been unsuccessful,
Hoover enlisted another attorney to talk to Sanders. And he
asked Sanders’s family to speak to him as well. Specifically,
he asked Sanders’s wife to visit Sanders and attempt to
change his mind; he also flew Sanders’s parents to the prison
so that Sanders could “discuss his feelings and beliefs” with
them. After all of that, Sanders opposed the presentation of
mitigating evidence not because he was confused about his
options but because he believed life imprisonment to be
worse than the death penalty.
Second, Sanders has not shown that anything Hoover
might have told him would have made any difference to his
decision not to present a case in mitigation. Most of the
additional information Hoover could have provided relates
to how Sanders could have presented a mitigation case in an
effort to avoid a death sentence—for example, information
62 SANDERS V. DAVIS
about the structure of the penalty phase and the different
types of mitigation evidence that could be presented in that
phase. None of that information, however, would have had
any relevance to Sanders’s determination that a death
sentence was preferrable to life in prison.
Nor was Sanders lacking in information about the two
possible sentences: life without parole and death. Sanders
says that Hoover should also have explained the differences
in prison conditions for life and death-row prisoners. Hoover
did address that issue, to a degree, by explaining that if
serving a life sentence, Sanders would not have to be held at
San Quentin. And in light of Sanders’s expressed objections
to the “whole idea of living his entire life in a cell,” it is not
clear why more information about conditions on death row
would have changed his mind. In any event, the conditions
on death row have become relevant only because Sanders
has managed to postpone his execution for nearly four
decades—with some help from this court, which set aside his
death sentence once before, only to be reversed by the
Supreme Court. Sanders v. Woodford, 373 F.3d 1054 (9th
Cir. 2004), rev’d, Brown v. Sanders, 546 U.S. 212 (2006).
Addressing a claim that lengthy pre-execution delay violates
the Eighth Amendment, Justice Thomas has observed that
“[i]t makes a mockery of our system of justice for a
convicted murderer, who, through his own interminable
efforts of delay has secured the almost-indefinite
postponement of his sentence, to then claim that the almost-
indefinite postponement renders his sentence
unconstitutional.” Reynolds v. Florida, 139 S. Ct. 27, 31
(2018) (Thomas, J., concurring in the denial of certiorari)
(internal quotation marks and citation omitted). Much the
same could be said of the argument presented here.
* * *
SANDERS V. DAVIS 63
Sanders understood that the penalty phase would
determine whether he received a sentence of life without
parole or death. He chose not to present mitigating evidence
because “he could not participate in a proceeding that would
result in [a life] sentence”—in his view, “a worse sentence
than being killed.” He now wishes he had made a different
choice, so he argues that Hoover should have made greater,
or at least more effective, efforts to get him to change his
mind. That view of the attorney’s role is inconsistent not
only with Landrigan but also with the principle that it is for
the client, not the lawyer, to define the objectives of the
representation. Persuading Sanders to seek a different
outcome in the penalty phase—persuading him, as the court
puts it today, “that his life had value”—may have been an
appropriate task for a psychiatrist, a philosopher, or a priest.
The Sixth Amendment did not make it the duty of his lawyer.