Clark Elmore v. Stephen Sinclair

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLARK ELMORE, No. 12-99003
Petitioner-Appellant,
D.C. No.
v. 2:08-cv-0053-RBL
STEPHEN SINCLAIR,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted
November 20, 2014—Portland, Oregon
Filed April 1, 2015
Before: Richard R. Clifton, Milan D. Smith, Jr.,
and Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.;
Concurrence by Judge Hurwitz
2 ELMORE V. SINCLAIR
SUMMARY*
Habeas Corpus / Death Penalty
The panel affirmed the district court’s denial of Clark
Elmore’s habeas corpus petition challenging his conviction
and death sentence for the rape and murder of his
stepdaughter.
The panel held that the Washington Supreme Court did
not act unreasonably in rejecting Elmore’s claim that his
shackling on the first day of voir dire for the sentencing trial
deprived him of due process. The panel held that assuming,
arguendo, that Elmore can show a violation of due process,
he cannot show prejudice because of the limited duration of
his shackling and the violent nature of his crime.
The panel held that the Washington Supreme Court
likewise reasonably rejected, for failure to show prejudice,
Elmore’s ineffective assistance of counsel claim based on
counsel’s failure to object to the shackling.
The panel held that it was not unreasonable for the
Washington Supreme Court to reject Elmore’s claim that
counsel was ineffective for proceeding with a remorse-
oriented strategy to the exclusion of mental-health and brain-
damage defenses.
The panel held that it was not unreasonable for the
Washington Supreme Court to reject Elmore’s claim that
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ELMORE V. SINCLAIR 3
counsel was ineffective for not objecting to the redaction of
his taped confession, which removed material in which
Elmore had expressed regret about his relationship with the
victim.
The panel held that assuming, arguendo, that counsel
performed deficiently by advising Elmore to plead guilty, he
cannot show that this advice prejudiced him. The panel wrote
that given the evidence against him, including a damning
tape-recording confession, it is highly likely that a jury would
have still convicted him of the same crime, even if he had not
pleaded guilty.
The panel held that the Washington Supreme Court was
not unreasonable in rejecting Elmore’s claims that he was
deprived of his right to trial by an impartial jury because a
juror lied during voir dire when he stated that he had not been
the victim of sexual abuse. The panel wrote that the juror
likely could not have been removed for cause, and that the
juror’s statements suggest that he believed his responses on
the questionnaire to be accurate.
Concurring in part and concurring in the result, Judge
Hurwitz wrote that he doubts that Elmore received competent
representation. But applying AEDPA’s “doubly-deferential”
standard, he concurred in the panel opinion insofar as it
concludes that the Washington Supreme Court did not
unreasonably determine that Elmore failed to establish
constitutional prejudice from either the guilty plea or the
shackling. He also wrote that although defense counsel
plainly fell below the applicable standard of care in not
investigating Elmore’s brain damage, he could not conclude
that the state court unreasonably determined that there is no
4 ELMORE V. SINCLAIR
reasonable probability that a proper investigation would have
changed the outcome.
COUNSEL
Robert Harris Gombiner (argued), Law Offices of Robert
Gombiner, Seattle, Washington; Jeffrey E. Ellis, Law Office
of Alsept & Ellis, Portland, Oregon, for Petitioner-Appellant.
John J. Sampson (argued) and Robert W. Ferguson,
Washington Attorney General’s Office, Olympia,
Washington, for Respondent-Appellee.
OPINION
M. SMITH, Circuit Judge:
Clark Elmore was convicted and sentenced to death for
the rape and murder of his stepdaughter, Kristy Ohnstad, in
1995. In this appeal of a judgment of the federal district court,
Elmore challenges his death sentence on various
constitutional and procedural grounds. Specifically, Elmore
argues that he was deprived of due process, the effective
assistance of counsel, and the right to an impartial jury during
the sentencing phase of his capital trial.
Elmore fully litigated these claims through the
Washington state court system. The Washington Supreme
Court first considered and dismissed several of these issues
on direct appeal. Elmore subsequently filed a collateral
petition, which the Washington Supreme Court remanded to
the trial court for a hearing on Elmore’s defense counsel’s
ELMORE V. SINCLAIR 5
failure to present a mental health defense. After this
evidentiary hearing, the Washington Supreme Court
dismissed Elmore’s personal restraint petition and held that
counsel was not ineffective for not having presented a mental
health defense.
Elmore subsequently filed this federal habeas petition in
federal court. We hold that the conclusion of the Washington
Supreme Court that Elmore was not deprived of his
constitutional rights during his capital trial was not
unreasonable. We therefore affirm the decision of the district
court to uphold Elmore’s death sentence.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Crime
On April 17, 1995, Clark Elmore raped and murdered his
stepdaughter, Kristy Ohnstad, in Whatcom County,
Washington. The details of the crime are gruesome, and not
in dispute. After having a verbal altercation with Kristy
Ohnstad in which she accused Elmore of having sexually
abused her as a child, Elmore told her he was going to drive
her to school. Elmore, instead, drove the victim to a secluded
area, parked on an undeveloped dirt roadway, and forced her
to have intercourse with him. He then choked Kristy Ohnstad
with his hands until she became unconscious.
After she was unconscious, Elmore removed her belt,
placed it around her neck, and buckled it. He then removed a
needle-like tool from his toolbox, forced it into her left ear,
and pushed it through to the opposite side of her skull.
Elmore then placed a plastic garbage bag around her head and
6 ELMORE V. SINCLAIR
struck her repeatedly with a hammer. Once he was convinced
she was dead, Elmore disposed of her body in the woods.
When Kristy Ohnstad’s mother initially reported her
missing, Elmore posed as a concerned father searching for his
daughter. He called the media and claimed that the police
were not doing enough to search for her. Once the police
began to focus their search for Kristy Ohnstad on the area
where Elmore had concealed the body, Elmore fled to
Oregon. Elmore, however, returned to Washington soon after
fleeing, and surrendered to the police. After his arrest, Elmore
gave a tape recorded confession in which he recounted the
details of his crime.
B. Elmore’s Guilty Plea
Elmore was charged with aggravated first degree murder,
which made him eligible for the death penalty. At his first
court appearance, Elmore stated that he did not want an
attorney, and attempted to plead guilty. The trial court
declined to take the plea and appointed Jon Komorowski as
defense counsel. This was Komorowski’s first capital case.
After being appointed, Komorowski put together a team of
co-counsel, an investigator, a mental health advisor, and a
legal assistant.
After having discussions with Komorowski, Elmore
pleaded guilty at his second court appearance. Komorowski
stated on the record that he was satisfied that Elmore was
mentally competent to plead guilty and that his client was
pleading guilty voluntarily. During his colloquy, Elmore
stated to the judge that he was competent to plead guilty and
that he was fully aware of the rights he was waiving,
ELMORE V. SINCLAIR 7
including the right to a trial by jury, by entering the guilty
plea.
C. Sentencing Trial
Although Elmore did not receive promises of a life
sentence in exchange for his guilty plea, Komorowski’s
strategy at sentencing apparently was to present the jury with
evidence of Elmore’s remorse for the crime, which included
the plea itself. Komorowski arrived at this strategy after
working with two focus groups of mock jurors, and
conducting a mock sentencing trial. Questioning of the focus
groups of mock jurors made clear that the most important
mitigating factor for a jury at sentencing would be Elmore’s
remorse and acceptance of personal responsibility. The focus
groups also expressed concern about abusive conduct by
Elmore, including past acts of sexual abuse and violence.
As part of his preparation for the sentencing trial,
Komorowski considered presenting Elmore’s mental health
issues as a mitigating factor. The defense team investigated
Elmore’s background and retained a clinical psychologist, Dr.
Ronald Kleinknecht, to determine whether Elmore had a
mental illness. Dr. Kleinknecht observed that Elmore did not
suffer a serious impairment in cognitive skills. Since Elmore
worked as a mechanic, Dr. Kleinknecht concluded that
Elmore had been able to engage in some complex and logical
thinking as part of his occupation.
Dr. Kleinknecht referred Elmore to Dr. Donald Roesch,
a clinical psychologist with a specialty in psychopathy. After
meeting and analyzing Elmore, Dr. Roesch concluded that
Elmore was not a psychopath. Dr. Roesch suggested that
Elmore’s murder of Kristy Ohnstad was impulsive, and
8 ELMORE V. SINCLAIR
consistent with heightened emotional arousal. While some of
the capital defense attorneys who worked with Komorowski
recommended further mental health investigation,
Komorowski was concerned about Dr. Roesch’s findings,
including Elmore’s heightened emotional arousal at the time
of the crime. Dr. Roesch also had suggested that Elmore
appreciated the seriousness of his crime and attempted to
cover it up. Komorowski did not further investigate these
matters.
As the sentencing trial approached, Elmore suggested that
he was less inclined to suffer feelings of remorse. Elmore had
received a letter from Sue Ohnstad indicating that she would
not be able to forgive Elmore for the murder of her daughter,
and that she would have no further contact with him. In
response to this letter, Elmore told his defense team’s
investigator that he no longer had anyone to whom he thought
he needed to apologize. As a result, Komorowski testified
that he believed that “time was running out” on the defense’s
ability to pursue a remorse defense.
The defense team ultimately did not present mental health
or brain damage evidence. Instead, they presented evidence
of Elmore’s acceptance of personal responsibility for his
crime. As part of this defense strategy, Elmore agreed to
appear in jail garb throughout the sentencing trial. Elmore
also appeared in shackles on the first day of jury selection.
Although this was not part of the defense team’s strategy,
Komorowski did not object to the use of shackles. After the
prosecutor raised concerns about Elmore appearing in
shackles, Elmore did not appear shackled after the first day of
voir dire.
ELMORE V. SINCLAIR 9
The prosecutor’s case focused on Elmore’s confession. A
detective played a redacted version of Elmore’s taped
confession. The redacted tape omitted a portion of the
confession that Komorowski believed showed Elmore’s
remorse, including statements about Elmore’s relationship
with Kristy Ohnstad and his regret for not having developed
a father-daughter relationship with her. To correct this error,
Komorowski decided to have the investigating detective read
that portion of the tape into the record on cross-examination.
The defense’s case attempted to show Elmore’s remorse
and acceptance of responsibility for the crime. Three judges,
who had overseen various phases of Elmore’s charging and
sentencing, testified about pretrial proceedings and Elmore’s
willingness to accept responsibility. The investigator on
Komorowski’s team testified regarding Elmore’s remorse.
The defense also presented evidence about Elmore’s military
service in Vietnam, his work history, and his relationship
with Sue Ohnstad.
At the end of the sentencing trial, the judge instructed the
jury, “Having in mind the crime of which the defendant has
been found guilty, are you convinced beyond a reasonable
doubt that there are not sufficient mitigating circumstances to
merit leniency?” During deliberations, the jury had access to
portions of Elmore’s tape-recorded confession. The jury
unanimously concluded that Elmore did not merit leniency,
and the judge sentenced Elmore to death.
After the sentence was handed down, Elmore moved for
a new trial, arguing that the jury had improperly listened to
the redacted tape confession during deliberations. The judge
denied the motion, ruling that the jury properly considered the
tape during deliberations.
10 ELMORE V. SINCLAIR
D. Juror 12
Juror 12 stated during a post-trial interview that he had
experienced two incidents of sexual molestation. In the first
incident, the juror had been “spooned” by another boy when
he was around eight years old. In the second incident, when
Juror 12 was around eleven years old, a boy in his boy scout
troop had groped him.
During voir dire for the penalty phase of Elmore’s trial,
Juror 12 stated on a questionnaire that he had never been the
victim of a crime or a sexual offense. The juror testified in his
post-trial interview that he did not believe that the two past
incidents of sexual abuse were crimes or sexual offenses.
Juror 12 also testified that he did not think about these two
acts of sexual molestation during Elmore’s trial and the
subsequent deliberations.
E. Direct Appeal to Washington Supreme Court
Elmore appealed his death sentence to the Washington
Supreme Court. Elmore raised various procedural challenges,
including due process challenges to his shackling during the
first day of jury selection and the jury’s access to his taped
confession during deliberations. Elmore also claimed that
Komorowski had not advised him of the constitutional rights
he would forfeit as a result of the guilty plea.
The Washington Supreme Court affirmed the conviction
and sentence on direct appeal. The Court suggested that
although it may have been error for Elmore to be shackled on
the first day of voir dire, because the trial court did not order
Elmore shackled during sentencing, this did not constitute a
due process violation. State v. Elmore, 139 Wash. 2d 250,
ELMORE V. SINCLAIR 11
275 (1999). Even if he had suffered a due process violation,
the Court held that Elmore could not show prejudice.
F. Elmore’s Personal Restraint Petition and
Evidentiary Hearing
After the Washington Supreme Court affirmed the death
sentence on direct appeal, Elmore filed a personal restraint
petition in Washington state court. This collateral petition
alleged several constitutional deficiencies in the sentencing
phase of the trial, including that Elmore had been denied the
right to an impartial jury and that counsel was ineffective for
allowing Elmore to appear in restraints on the first day of voir
dire. Elmore also alleged that counsel had been ineffective by
not presenting evidence of remorse or Elmore’s diminished
mental capacity. In re Elmore, 172 P.3d 335, 339 (Wash.
2007).
The Washington Supreme Court remanded the case to the
superior court for an evidentiary hearing concerning the
defense’s failure to present mental health evidence. During
this hearing, Komorowski testified at length about his defense
strategy and his reasons for pursuing a defense based solely
on Elmore’s remorse for his crime. Komorowski stated that
he was concerned about dueling mental health experts, the
ability of the prosecutor to present evidence of Elmore’s past
acts of sexual abuse as rebuttal evidence, and Elmore
retracting his feelings of remorse.
Several mental health experts testified at this hearing on
the issue of Elmore’s alleged mental health issues. The
experts testified about whether these impairments could have
prevented Elmore from comprehending the crime he had
committed. Dr. Dale Watson, one of Elmore’s experts, stated
12 ELMORE V. SINCLAIR
that Elmore had committed the crime under an extreme
emotional disturbance and had a reduced ability to control
himself. Dr. George Woods, another one of Elmore’s experts,
testified that Elmore likely suffered an extreme emotional
disturbance and that this might have impaired his ability to
comply with the law. Dr. Henry Levine, a prosecution expert,
testified that while Elmore might suffer from psychiatric
disorders, the evidence at the time of the crime revealed that
“[Elmore] was calm, calculating, able to conform his conduct
with the requirements of the law and that he took rather
significant measures prior to the crime and during the crime
to cover it up, which indicates to me he was thinking and
behaving in terms that allowed him to be described as a
thinking and calculating individual.”
After the Washington Supreme Court reviewed the
superior court’s findings of fact, in November 2007, it denied
Elmore’s personal restraint petition. The Court held that:
(1) it was not deficient representation for the defense not to
present a mental health defense, and instead rely on remorse,
(2) it was deficient representation to allow Elmore to appear
in restraints on the first day of the penalty phase of the trial,
but this deficiency did not prejudice Elmore, (3) claims
concerning the jury’s consideration of the taped confession
during deliberations had been considered and rejected on
direct appeal, and (4) Elmore was not denied an impartial jury
because Juror 12’s incidents were “minor” and “[m]inimal
sexual contact between two young boys is significantly
different from the rape and murder charges Elmore faced.” In
re Elmore, 172 P.3d at 352.
ELMORE V. SINCLAIR 13
G. Federal Habeas Petition
Elmore filed a federal petition for a writ of habeas corpus
under 28 U.S.C. § 2254, listing thirteen purported errors by
the Washington state courts. Among these claims were that
his appearance in restraints violated due process, that his
counsel provided ineffective representation, and that he was
denied an impartial jury because a juror misled the court by
stating that he had not been sexually abused.
The district court denied Elmore habeas relief. On the
ineffective assistance of counsel claims, the district court
noted that “counsel’s advice to plead guilty was the product
of reasonable strategy—his client wanted to plead guilty, the
prosecutor refused to negotiate, and any attempt at proving
innocence would have been futile and would have possibly
detracted from Mr. Elmore’s claims of taking responsibility
and feeling remorse.” The court held that Komorowski
selected a reasonable defense strategy of presenting
mitigation evidence, and not presenting a mental health
defense. On the impartial jury claim, the district court held
that Juror 12’s answers to the questionnaire were not
inconsistent, that the Washington Supreme Court did not
unreasonably dismiss this challenge, and that Elmore had not
shown prejudice. On the claims related to Elmore’s shackling
on the first day of the sentencing trial, the court found that
Elmore had not objected to being shackled and that this could
have constituted a strategy to show Elmore’s remorse and
acceptance of responsibility. Elmore subsequently filed this
appeal.
14 ELMORE V. SINCLAIR
JURISDICTION AND STANDARD OF REVIEW
“The statutory authority of federal courts to issue habeas
corpus relief for persons in state custody is provided by
28 U.S.C. § 2254, as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA).” Harrington
v. Richter, 131 S. Ct. 770, 783 (2011). Under AEDPA, we
determine whether the Washington Supreme Court’s
resolution of Elmore’s constitutional claims was
unreasonable. Harrington, 131 S. Ct. at 785. Specifically,
under 28 U.S.C. § 2254(d)(1), we consider whether the “state
court arrive[d] at a conclusion opposite to that reached by [the
Supreme] Court on a question of law” or “confront[ed] facts
that are materially indistinguishable from a relevant Supreme
Court precedent and arrive[d] at a result opposite to [that of
the Supreme Court].” Williams v. Taylor, 529 U.S. 362, 405
(2000). The “unreasonable application clause” of 28 U.S.C.
§ 2254(d)(1) requires that we consider whether the state court
unreasonably applied the holdings of the Supreme Court to
the facts of Elmore’s case. Holland v. Jackson, 542 U.S. 649,
652 (2004) (per curiam). Under 28 U.S.C. § 2254(d)(2), we
determine whether the state court adjudication “was based on
an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.”
DISCUSSION
I. Due Process Claim Related to Elmore’s Appearance in
Restraints
Elmore contends that his shackling on the first day of jury
selection deprived him of the constitutional right to due
process, and that the state court erred by finding that this
shackling did not prejudice him because he was only shackled
ELMORE V. SINCLAIR 15
for the first day of a two-week voir dire. The district court
held that the Washington Supreme Court did not act
unreasonably in rejecting this due process claim. We affirm
the district court. Assuming, arguendo, that Elmore can show
a violation of due process, he is not entitled to habeas relief
because he cannot show that this violation prejudiced his
sentencing. See Washington v. Recuenco, 548 U.S. 212, 221
(2006).
The prejudice inquiry is relatively fact-specific and
applies both to the analysis of the purported due process
violation and the ineffective assistance of counsel claim
discussed infra. “To determine whether the imposition of
physical restraints constitutes prejudicial error, we have
considered the appearance and visibility of the restraining
device, the nature of the crime with which the defendant was
charged and the strength of the state’s evidence against the
defendant.” Larson v. Palmateer, 515 F.3d 1057, 1064 (9th
Cir. 2008); Duckett v. Godinez, 67 F.3d 734, 747–49 (9th Cir.
1995) (visibility of restraints). We have suggested that the
amount of time a prisoner is shackled before the jury is also
important. Larson, 515 F.3d at 1064 (finding no prejudice
where defendant was “wearing the leg brace for the first two
days of his six-day trial”); Spain v. Rushen, 883 F.2d 712,
722 (9th Cir. 1989) (“[T]he greater the intensity of shackling
and the chains’ visibility to the jurors, the greater the extent
of prejudice.”). When shackling occurs in the penalty phase,
we have also considered whether the shackling presents an
image that a defendant is too dangerous to be unrestrained.
Cox v. Ayers, 613 F.3d 883, 892 (9th Cir. 2010).
We hold that Elmore cannot show prejudice from his
shackling on the first day of voir dire because of the limited
duration of his shackling and the violent nature of his crime.
16 ELMORE V. SINCLAIR
Elmore correctly argues that the shackling was visible: he
wore a belly chain and leg irons. Elmore also notes that the
shackling could have influenced the first impression jurors
had of him. However, this was partly the point of the defense
strategy: Elmore’s defense attorney had decided to attempt to
show Elmore’s acceptance of responsibility. Elmore had
agreed to appear before the jury in jail clothing for the entire
trial as part of this strategy.
The specific facts of the crime, which were gruesome and
violent, also suggest that Elmore was not prejudiced, although
this should be considered in light of the fact that capital
murder trials always consider extremely violent crimes.
Larson, 515 F.3d at 1063 (no prejudice where shackling
occurred during trial for a violent retaliation murder against
family members).
The duration of Elmore’s shackling also suggests that
there was no prejudice. Unlike our holding in Spain, where
the defendant’s shackles were conspicuous for the entire trial,
Elmore was shackled for one day. Spain, 883 F.2d at 722.
Two weeks passed during the jury selection process.
II. Ineffective Assistance of Counsel Claims
Elmore raises four related ineffective assistance of
counsel claims: (1) the defense attorney failed to object to the
use of restraints at trial, (2) the defense attorney did not
present mitigation evidence concerning mental health, lack of
future dangerousness, and remorse, (3) the defense attorney
did not object to the redaction of the taped confession to
exclude material that showed aspects of Elmore’s contrition,
and (4) the defense attorney incorrectly advised him that
pleading guilty increases the chance of a life sentence.
ELMORE V. SINCLAIR 17
To prove that he was deprived of his Sixth Amendment
right to the effective assistance of counsel, Elmore must
satisfy a two-part standard. First, he must show that counsel’s
performance was so deficient that it “fell below an objective
standard of reasonableness.” Strickland v. Washington,
466 U.S. 668, 686 (1984). We “begin with the premise that
‘under the circumstances, the challenged action[] might be
considered sound trial strategy.’” Cullen v. Pinholster, 131
S. Ct. 1388, 1404 (2011) (quoting Strickland, 466 U.S. at
689). We “affirmatively entertain the range of possible
reasons . . . counsel may have had for proceeding as they
did.” Pinholster, 131 S. Ct. at 1407. Second, Elmore must
show that Komorowski’s alleged deficient performance
prejudiced the defense. To meet this standard, Elmore must
demonstrate “that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S.
at 694. “In the context of a plea, a petitioner satisfies the
prejudice prong of the Strickland test where ‘there is a
reasonable probability that, but for counsel's errors, he would
not have pleaded guilty and would have insisted on going to
trial.’” Smith v. Mahoney, 611 F.3d 978, 986 (9th Cir. 2010)
(quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).
Under AEDPA, Elmore must also show that the
Washington state court adjudication was objectively
unreasonable in dismissing his ineffective assistance of
counsel claims. See Brown v. Uttecht, 530 F.3d 1031, 1033
(9th Cir. 2008). Our review is therefore “doubly deferential,”
because we must “take a highly deferential look at counsel’s
performance through the deferential lens of [AEDPA].”
Pinholster, 131 S. Ct. at 1403 (citations and internal quotation
marks omitted).
18 ELMORE V. SINCLAIR
A. Failure to Object to Restraints
The Washington Supreme Court concluded that counsel
was deficient in not objecting to the use of restraints but that
Elmore was not prejudiced by his wearing of restraints. In re
Elmore, 172 P.3d at 347. Elmore challenges the conclusion
that he was not prejudiced.
Elmore’s case does not fit into any of the circumstances
of deficient performance where we assume prejudice, namely:
(1) a denial of counsel, (2) state interference with counsel’s
assistance, or (3) an actual conflict of interest. See Walker v.
Martel, 709 F.3d 925, 941 (9th Cir. 2013) (citing Smith v.
Robbins, 528 U.S. 259, 287 (2000)). Instead, we conduct the
prejudice inquiry by considering many of the same factual
issues we did in Section I, supra. See Walker, 709 F.3d at 942
(“We may look to the due process shackling cases as
illustrative of the degree of prejudice assigned to different
restraints.”). The central question is whether counsel’s failure
to object to Elmore’s one-day appearance in shackles created
a reasonable probability of a different outcome at the
sentencing trial.
As above, we conclude that the Washington Supreme
Court was not unreasonable in concluding that Elmore failed
to show prejudice from his shackling because of the limited
duration of the shackling and the violent nature of the crime.
The Washington Supreme Court applied this prejudice
standard to the ineffective assistance of counsel claims and
arrived at the same conclusion. In re Elmore, 172 P.3d at 352.
We hold that its analysis was reasonable.
ELMORE V. SINCLAIR 19
B. Presentation of Mental Health and Brain Damage
Evidence
Elmore next argues that his defense counsel was required
to fully explore defenses based on mental health and possible
brain damage, including retaining a neuropsychological
expert, before deciding not to present each of these defenses.
Elmore also argues that his defense attorney did not expand
on sympathetic information from his background, such as his
family, his time in the military during the Vietnam war, his
exposure to neurotoxins that may have led to brain damage,
his friendships, his low risk of future violence given his
behavior in jail, and his relationship with Sue Ohnstad.
As a threshold matter, we distinguish two separate but
complementary defense strategies that were available to
Komorowski at the time of Elmore’s sentencing. The first, the
mental health defense, refers to the presentation of mitigating
factors related to Elmore’s possible mental disorders, “child
sexual and physical abuse, adult sexual trauma, and
neuropsychological impairment.” The second, the brain
damage defense, refers to mitigating factors related to
Elmore’s physical brain damage from prior head injuries and
an alleged lifelong exposure to toxic agents, including during
Elmore’s service as a soldier in Vietnam. The Washington
Supreme Court decision dismissing Elmore’s personal
restraint petition, at times, conflated the mental health and
brain damage defenses. See In re Elmore, 172 P.3d at 341
(“According to Dr. Kleinknecht, if there were clinically
significant brain damage, he would have expected it to
manifest through difficulty in abstract thinking, poor
memory, inability to use higher mental processes, and
inability to hold objects.”); id. at 342 (“Dr. Roesch testified
that his evaluation failed to reveal any evidence of organic
20 ELMORE V. SINCLAIR
brain damage, although that was not the focus of his
evaluation.”).
We conclude that defense counsel was not deficient in
focusing on a remorse-oriented strategy, rather than
presenting evidence related to Elmore’s mental health or
brain damage. Even if we entertain the possibility that Elmore
might be correct that some of the material Komorowski did
not present to the jury could have assisted his case, his
arguments are little more than a challenge to his defense
attorney’s trial strategy with the benefit of hindsight. As long
as defense counsel uses a “sound trial strategy,” employing
that strategy does not constitute deficient performance.
Brown, 530 F.3d at 1035. “[C]ounsel’s tactical decisions at
trial, such as refraining from cross-examining a particular
witness or from asking a particular line of questions, are
given great deference and must similarly meet only
objectively reasonable standards.” Dows v. Wood, 211 F.3d
480, 487 (9th Cir. 2000). “Once counsel reasonably selects a
defense, it is not deficient performance to fail to pursue
alternative defenses.” Rios v. Rocha, 299 F.3d 796, 807 (9th
Cir. 2002).
Having retained a trial consulting firm that conducted two
mock trials, Komorowski and his defense team made a
reasonable strategic decision to pursue a remorse defense.
These mock trials showed that jurors responded better to
evidence about Elmore’s remorse and acceptance of
responsibility than to mitigation evidence concerning his
mental health or brain damage. Komorowski thus focused his
attention on having three judges, who had overseen phases of
Elmore’s charging and sentencing, testify about Elmore’s
remorse and willingness to accept responsibility by pleading
guilty. He also called the defense investigator to present the
ELMORE V. SINCLAIR 21
jury with Elmore’s background information, such as his
family history and service in Vietnam.
Considering what they perceived to be the relative
strength of a remorse defense, Komorowski and the defense
team made the strategic decision to pursue this defense
exclusively. Komorowski did hire two mental health experts
to evaluate Elmore. Based on the findings of the mental
health experts, Komorowski was concerned that a strategy
that presented other defenses to complement the remorse
defense would detract from, or destroy, the remorse strategy.
For example, in response to a mental health defense, the
prosecution’s expert could have potentially introduced
evidence of Elmore’s past sexual abuse of Kristy Ohnstad and
other acts of sexual molestation that Komorowski believed
would have led to a death penalty. In particular, through
researching some of Elmore’s mental health issues, defense
counsel had discovered that Elmore had engaged in
inappropriate sexual activity with other girls. Komorowski
also was concerned about opening the door for the
prosecution to present the details of the crime to the jury.
Ultimately, the decision to present a limited defense to
restrict the prosecution’s rebuttal evidence was a legitimate
strategy. See Bell v. Cone, 535 U.S. 685, 700 (2002). Based
on the research of the defense team, Komorowski believed at
the time that a “mitigation package on remorse and
acceptance of responsibility” would prevent the prosecution
from presenting damaging rebuttal evidence. It was not
deficient performance for Komorowski to elect this strategy.
The decisions not to present mitigation evidence related to
mental health or brain damage were even more reasonable in
light of the defense team’s fears that Elmore would not
cooperate with the remorse strategy if they waited any longer.
22 ELMORE V. SINCLAIR
Komorowski testified that he felt as though he was “running
out of time.” Elmore had received a letter from Sue Ohnstad
in which she said that she would no longer have contact with
him. After receiving this letter, Elmore told the defense
investigator that he no longer had anyone to whom he thought
he needed to apologize. Komorowski also testified that
Elmore had begun implying to the jail staff that he was
reconsidering his feelings of remorse. Given the concern that
Elmore would not cooperate at sentencing, it was not
deficient performance for Komorowski to proceed with the
remorse strategy to the exclusion of the mental health and
brain damage defenses. We hold that it was not unreasonable
for the Washington Supreme Court to dismiss these
ineffective assistance of counsel claims.
C. Redacted Taped Confession
Elmore next claims that his defense counsel was
ineffective for not objecting to the redaction of his taped
confession during the sentencing trial. This redaction
removed material in which Elmore had expressed regret about
his relationship with Kristy Ohnstad.
Although it might have been deficient performance for
defense counsel to completely ignore this omission,
Komorowski did ask about this material on cross-
examination. One of the detectives assigned to Elmore’s case
read verbatim Elmore’s statement to the jury. The jury still
heard Elmore’s statements about his relationship with Kristy
Ohnstad.
The inclusion of this statement in cross-examination also
makes it far less likely that the omission of this tape evidence
prejudiced the defense. The jury still heard Elmore’s
ELMORE V. SINCLAIR 23
statements about his relationship with Kristy Ohnstad.
Although a third party reading in testimony is arguably
weaker than the jury’s hearing Elmore’s own voice, the
manner in which the evidence was presented can cut both
ways. Elmore’s defense counsel isolated Elmore’s statement
from the other parts of the confession, where Elmore
described the gruesome nature of the crime. In these
circumstances, it was not unreasonable for the Washington
Supreme Court to conclude that Elmore was not deprived of
his Sixth Amendment rights.
D. Advice to Plead Guilty
Elmore contends that his defense counsel incorrectly
advised him to plead guilty because “he would have a better
chance of avoiding the death penalty than if he went to trial.”
Elmore also points out that defense counsel did not tell him
that by pleading guilty, the prosecution could still introduce
all the facts of the crime to the jury at sentencing.
The decision to plead guilty in a capital case is a serious
one, and counsel has a professional duty to explain to a
defendant the advantages and disadvantages of entering the
guilty plea. See American Bar Association, Death Penalty
Guidelines 10.9.2 (2003). However, a defendant still retains
the right to plead guilty to a capital crime. In the past, we
have held that a defendant may want to plead guilty for a
number of reasons, including sparing a defendant’s family
from public scrutiny, minimizing trauma to victims and
survivors, and a desire to accept responsibility. See Deere v.
Cullen, 718 F.3d 1124, 1146 (9th Cir. 2013).
Assuming, arguendo, that Komorowski performed
deficiently by advising Elmore to plead guilty, Elmore cannot
24 ELMORE V. SINCLAIR
show that this advice prejudiced him under the second prong
of Strickland. Given the evidence against Elmore, including
the damning tape-recorded confession, it is highly likely that
a jury would have still convicted him of the same crime, even
if he had not pleaded guilty. Although Elmore suggests that
his attorney could have presented a mental health defense at
the guilt phase of a trial, Elmore has not demonstrated
prejudice because reports from the mental health experts did
not establish a reasonable probability that the defense would
have succeeded. See Section III.C, supra. Had Elmore been
convicted at the guilt phase, he would have been in the same
position during the penalty phase of the trial, except that a
remorse defense may have been weakened.
III. Impartial Jury
Elmore also claims that he was deprived of his right to
trial by an impartial jury because a juror lied during voir dire.
Juror 12 stated that he had not been the victim of sexual
abuse. Five years after the trial, the juror revealed in an
interview that he had been the victim of two acts of sexual
molestation as a child. The Washington Supreme Court
rejected Elmore’s claim, concluding that the juror’s sexual
abuse was not material to Elmore’s trial because the incidents
of molestation were “minor and occurred when the juror was
a young teen. Neither incident involved violence or rape, the
crimes for which petitioner was prosecuted.” In re Elmore,
172 P.3d at 351.
“[T]he right to jury trial guarantees to the criminally
accused a fair trial by a panel of impartial, ‘indifferent’
jurors.” Irvin v. Dowd, 366 U.S. 717, 722 (1961). This
requires that a “juror can lay aside his impression or opinion
and render a verdict based on the evidence presented in
ELMORE V. SINCLAIR 25
court.” Id. at 723. To show that Juror 12’s purported lies
deprived Elmore of the right to a fair trial, Elmore must
demonstrate that Juror 12 failed to honestly answer a material
question on voir dire. Elmore must then show that a correct
response would have provided a basis for a challenge for
cause. McDonough Power Equip., Inc. v. Greenwood,
464 U.S. 548, 556 (1984). If Elmore is able to show juror bias
and lack of a fair trial, then the appropriate remedy is a
hearing on juror bias. Smith v. Phillips, 455 U.S. 209, 215
(1982).
Even if the responses by Juror 12 were material, Juror 12
likely could not have been removed for cause. The juror
stated in his questionnaire that he could listen to the evidence
and decide the case with an open mind, that he would be fair
to both sides, and that he would vote to impose the death
penalty on a case-by-case basis. Elmore argues that Juror 12’s
alleged lies on other questions regarding sexual crimes
invalidate this questionnaire. However, the juror stated that he
did not consider the acts of molestation to be crimes or sexual
offenses. This suggests that he believed his responses on the
questionnaire to be accurate. Accordingly, we conclude that
the Washington Supreme Court was not unreasonable in
dismissing Elmore’s claims alleging juror bias.
IV. Conclusion
We hold that the Washington Supreme Court’s resolution
of Elmore’s constitutional claims was not unreasonable. The
district court did not err in denying Clark Elmore’s challenges
to his conviction and death sentence, and we therefore affirm
the district court’s decision.
All outstanding motions are denied.
26 ELMORE V. SINCLAIR
Each party shall bear its own costs on appeal.
AFFIRMED.
HURWITZ, Circuit Judge, concurring in part and concurring
in the result:
Clark Elmore committed a truly monstrous crime. A state
that has chosen to impose the death penalty can surely reserve
it for such an offense.
But, before the state can impose that sentence, Elmore is
entitled under the Sixth Amendment to effective assistance of
counsel. I doubt that he received competent representation.
His lawyer, who had never before handled a capital case,
advised Elmore to plead guilty without receiving any
agreement as to sentence in return.1 The lawyer allowed
Elmore to appear in shackles at his first appearance before the
sentencing jury. The one-hour mitigation presentation
consisted entirely of unconvincing attempts to prove through
court personnel that Elmore was remorseful. And, counsel
never investigated whether this senseless crime was at least
in part the product of Elmore’s organic brain damage.
1
“[P]leading guilty without a guarantee that the prosecution will
recommend a life sentence holds little if any benefit for the defendant.”
Florida v. Nixon, 543 U.S. 175, 191 n.6 (2004); see also Gary Goodpaster,
The Trial for Life: Effective Assistance of Counsel in Death Penalty
Cases, 58 N.Y.U. L. Rev. 299, 331–32 (1983) (explaining the benefit of
conducting a guilt phase trial in capital cases even “where overwhelming
evidence of guilt exists,” and noting compatibility of this approach with
a penalty phase remorse defense).
ELMORE V. SINCLAIR 27
But under AEDPA, my serious doubt as to whether the
Sixth Amendment was honored is not enough. Rather, we are
constrained to view counsel’s performance and the state
court’s denial of relief through a “doubly deferential” lens.
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009); Clark v.
Arnold, 769 F.3d 711, 715 (9th Cir. 2014). Applying that
forgiving standard, I concur in the panel opinion insofar as it
concludes that the Washington Supreme Court did not
unreasonably determine that Elmore failed to establish
constitutional prejudice from either the guilty plea or the
shackling. And, although defense counsel plainly fell below
the applicable standard of care in not investigating Elmore’s
brain damage, I cannot conclude that the state court
unreasonably determined that there is no reasonable
probability that a proper investigation would have changed
the outcome. Thus, I agree that the death penalty must stand.
I.
The majority holds that the Washington Supreme Court
reasonably rejected Elmore’s ineffective assistance of counsel
claim relating to brain damage because the decision to present
a limited mitigation case was a “legitimate strategy.” But we
evaluate strategy “in terms of the adequacy of the
investigations supporting” it. Wiggins v. Smith, 539 U.S. 510,
521 (2003); see also Mann v. Ryan, 774 F.3d 1203, 1217–18
(9th Cir. 2014). Elmore’s lawyer conducted no brain damage
investigation, and candidly admitted that he failed to do so
because of inexperience, not strategy.
The Supreme Court has emphasized that in preparing a
death penalty mitigation defense, “counsel has a duty to make
reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary.” Wiggins,
28 ELMORE V. SINCLAIR
539 U.S. at 521 (quoting Strickland v. Washington, 466 U.S.
668, 691 (1984)); see also Mann, 774 F.3d at 1216
(“[C]ounsel has an obligation at the penalty phase to conduct
a thorough investigation of the defendant’s background.”
(internal quotation marks omitted)). This duty exists wholly
apart from the strategic decision about what evidence to
present in the mitigation case. See Wiggins, 539 U.S. at
521–23. The adequacy of counsel’s investigation is
determined by “prevailing professional norms, which
includes a context-dependent consideration of the challenged
conduct as seen from counsel’s perspective at the time.” Id.
at 523 (quoting Strickland, 466 U.S. at 688–89) (citation and
internal quotation marks omitted).
The prevailing professional norms in 1995 plainly
required an investigation into brain damage. The American
Bar Association Guidelines have been repeatedly cited by the
Supreme Court as “‘guides to determining what is
reasonable’” in capital litigation defense. Wiggins, 539 U.S.
at 524 (quoting Strickland, 466 U.S. at 688). The Guidelines
require death penalty counsel to investigate “all reasonably
available mitigating evidence,” including specifically whether
the client had suffered any mental injuries or has cognitive
limitations. ABA Guidelines for the Appointment and
Performance of Counsel in Death Penalty Cases 11.4.1
(1989). Consistent with the Guidelines, several death penalty
experts submitted declarations stating that reasonable death
penalty counsel would have investigated the possibility that
Elmore had brain damage. Those declarations were
uncontroverted, and for good reason; we and our sister
Circuits have repeatedly treated brain damage as a central
consideration in death penalty mitigation defense. See, e.g.,
Mann, 774 F.3d at 1217–18; Littlejohn v. Trammell, 704 F.3d
817, 860 (10th Cir. 2013); Frierson v. Woodford, 463 F.3d
ELMORE V. SINCLAIR 29
982, 989 (9th Cir. 2006); Jacobs v. Horn, 395 F.3d 92,
102–03, 107 (3d Cir. 2005).
The evidence in this case plainly “would have led a
reasonably competent attorney to investigate further” about
brain damage. Wiggins, 539 U.S. at 534. Elmore’s
background was replete with toxin exposure—he grew up
near an airport used for crop dusting, was exposed to Agent
Orange while serving in Vietnam, and had extensive contact
with toxic materials while working on oil pipelines and with
automobiles. Counsel was also aware that Elmore had
suffered various head injuries, including a blow to the head
from an ax. Both mental health experts who examined
Elmore testified that they would have recommended
neurological testing had they been apprised of Elmore’s
history. And, a death penalty expert who consulted with
counsel specifically recommended brain damage testing. Yet
defense counsel did nothing. “[A]ny reasonably competent
attorney would have realized that pursuing these leads was
necessary to making an informed choice among possible
defenses . . . .” Id. at 525; see also Mann, 774 F.3d at 1217
(“‘When tantalizing indications in the record suggest that
certain mitigating evidence may be available, those leads
must be pursued.’” (quoting Lambright v. Schriro, 490 F.3d
1103, 1117 (9th Cir. 2007)) (alteration omitted)).
Counsel not only failed to undertake any brain damage
investigation, but offered no explanation for this omission
other than inexperience.2 That admission, although admirably
2
Counsel had never represented a death penalty defendant prior to
Elmore, and he had never retained a neuropsychologist or neurologist in
his previous criminal defense work. He testified that “unless identification
of signs or symptoms of traumatic brain injury were covered” in one of the
30 ELMORE V. SINCLAIR
forthright, cannot justify forgoing investigation. See Wiggins,
539 U.S. at 526 (finding ineffective assistance in part because
counsel’s “failure to investigate thoroughly resulted from
inattention, not reasoned strategic judgment”); Williams v.
Taylor, 529 U.S. 362, 395 (2000) (finding ineffective
assistance in part because the failure to investigate was “not
because of any strategic calculation but because [counsel]
incorrectly thought that state law barred access to [relevant]
records”).
The state court’s conclusion that counsel’s representation
met prevailing norms was thus flatly inconsistent with clearly
established Supreme Court law. See 28 U.S.C. § 2254(d)(1)
(allowing habeas relief if a state court decision is “contrary
to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court
of the United States”). And, the majority’s conclusion that
counsel’s oversight can be excused as “strategy” is in direct
tension with our recent decision in Mann. In that case, we
squarely held that the state court unreasonably determined
that counsel’s failure to investigate brain damage did not fall
below an objective standard of reasonableness:
[C]ounsel could not have made a reasoned
strategic decision to not present mitigating
evidence regarding Mann’s organic brain
damage or other life history because he did
not even attempt to explore that evidence.
Rather, the record suggests that his failure to
investigate thoroughly resulted from
inattention, not reasoned strategic judgment.
death penalty seminars that he attended, “he did not recall ever having
received such training.”
ELMORE V. SINCLAIR 31
774 F.3d at 1218 (alterations and internal quotation marks
omitted). No different conclusion can be reached here.
Although “strategic choices made after thorough
investigation of law and facts . . . are virtually
unchallengeable,” Strickland, 466 U.S. at 690, “strategy” is
not a talisman that insulates ineffective representation from
constitutional norms, see Wiggins, 539 U.S. at 521, 533–34
(rejecting counsel’s argument that their “strategic” conduct
was effective assistance because their investigation did not
“reflect reasonable professional judgment”). “An uninformed
strategy is not a reasoned strategy. . . . It is, in fact, no
strategy at all.” Mann, 774 F.3d at 1218 (quoting Correll v.
Ryan, 539 F.3d 938, 949 (9th Cir. 2008)) (internal quotation
marks omitted).
Counsel’s failure to investigate brain damage was plainly
not effective representation. A state that chooses to impose
capital punishment owes a defendant more. Even when
scrutinized with AEDPA deference, the state court’s
determination to the contrary was unreasonable.
II.
But, even when counsel’s performance falls below the
applicable standard of care, a successful ineffective assistance
claim also requires proof of prejudice. See Strickland,
466 U.S. at 687. “[T]o establish prejudice, a ‘defendant must
show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.’” Wiggins, 539 U.S. at 534 (quoting Strickland,
466 U.S. at 694). And, under AEDPA, I am required to
32 ELMORE V. SINCLAIR
review with deference the state court’s decision that Elmore
was not prejudiced by the failure to present brain damage
evidence at the penalty trial.3 I am unable to conclude that
the state court unreasonably determined on the record before
it that there was no prejudice.
In the state post-conviction review proceedings, both
Elmore and the State submitted evidence about brain damage.
In reviewing this evidence, the Washington Supreme Court
stated that the “expert witnesses did not agree on whether, or
to what extent, Elmore’s mental deficiencies affected his
ability to conform to lawful behavior.” In re Elmore,
172 P.3d 335, 347 (Wash. 2007) (en banc). This
characterization of the evidence was accurate. Elmore’s
experts testified that he suffered from some form of brain
damage, and that this brain damage could have influenced his
decision-making during the murder. These experts also
concluded, however, that Elmore’s brain damage did not
prohibit him from functioning in society. Indeed, one
neuropsychologist stated: “Mr. Elmore was able to tell right
from wrong at the time of the crime. He knew the nature and
quality of his act. He was not insane.”
3
As the panel notes, the Washington Supreme Court appeared to
conflate the mental health and brain damage issues. It is also unclear
whether the Washington Supreme Court expressly reached the Strickland
prejudice prong with respect to the brain damage investigation. We must,
however, apply AEDPA deference unless it is clear that “the state court
has not decided an issue.” Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th
Cir. 2006); see also Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per
curiam) (noting that AEDPA’s deferential standard of review requires that
state court opinions “be given the benefit of the doubt”). I therefore must
assume that the state court found that there was no constitutional prejudice
from the failure to introduce brain damage evidence, and review that
finding deferentially under AEDPA.
ELMORE V. SINCLAIR 33
The State’s expert, although agreeing that Elmore likely
suffered from brain damage, flatly testified that any
neurological impairments did not contribute to the crime. He
explained that “there was a great deal of evidence right
around and at the time of the crime that indicated that Mr.
Elmore was calm, calculating, able to conform his conduct
with requirements for the law, and that he took rather
significant measures prior to the crime and during the crime
to cover it up.”
To be sure, because no “causal nexus” is required
between the defendant’s proffered mitigation and the crime,
see Hurles v. Ryan, 752 F.3d 768, 784–85 (9th Cir.), cert.
denied, 135 S. Ct. 710 (2014), this brain damage evidence
would have been admissible during the sentencing trial had
counsel pursued a competent investigation. But, given the
absence of a causal nexus, the equivocal nature of the
evidence, the State’s contrary expert, the horrific nature of the
crime, Elmore’s attempts to cover it up, and the uncontested
evidence that he functioned well on the job and in society in
general, I cannot find unreasonable the state court’s
conclusion that Elmore failed to establish a reasonable
probability that the outcome would have been different had
counsel performed competently. Because constitutional
ineffective assistance requires both performance below
professional norms and a reasonable probability of prejudice,
I concur in the denial of the ineffective assistance of counsel
claim as to brain damage.