Tauno Waidla v. Ron Davis

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TAUNO WAIDLA, Nos. 18-99001
18-99002
Petitioner-Appellee/
Cross-Appellant, D.C. No.
2:01-cv-00650-
v. AG
RONALD DAVIS, Warden,
OPINION
Respondent-Appellant/
Cross-Appellee.
Appeals from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued and Submitted March 1, 2023
Pasadena, California
Filed May 23, 2023
Before: Kim McLane Wardlaw, Paul J. Watford, and Eric
D. Miller, Circuit Judges.
Per Curiam Opinion;
Partial Concurrence and Partial Dissent by Judge Miller
2 WAIDLA V. DAVIS
SUMMARY *
Habeas Corpus / Death Penalty
In a case in which Tauno Waidla was found guilty in
California state court of first-degree murder during the
course of a burglary and robbery with personal use of a
deadly and dangerous weapon, and was sentenced to death,
the panel affirmed the district court’s grant of habeas relief
on Waidla’s claim of ineffective assistance of counsel at the
penalty phase, and affirmed the district court’s denial of
relief on claims at the guilt phase.
Reviewing under 28 U.S.C. § 2254(d), the panel held in
the government’s appeal that the California Supreme Court
unreasonably applied the standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984), in evaluating Waidla’s
claim of ineffective assistance at the penalty phase. The
panel concluded that had the three categories of evidence
that counsel should have discovered been presented to the
jury, there is a reasonable probability that at least one juror
would have voted against the death penalty. The panel did
not need to reach whether the denial of relief on Waidla’s
penalty-phase claim that he was deprived of due process by
the State’s presentation of false evidence violated 28 U.S.C.
§ 2254(d).
On Waidla’s cross-appeal from the denial of relief at the
guilt phase, the panel held that the California Supreme Court
did not unreasonably apply Edwards v. Arizona, 451 U.S.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
WAIDLA V. DAVIS 3
477 (1981), and its progeny in upholding the admission of
Waidla’s confession. The panel reached the same
conclusion when considering the question under Rhode
Island v. Innis, 446 U.S. 291 (1980). As to Waidla’s claim
of ineffective assistance of counsel in four areas at the guilty
phase, the panel held that the California Supreme Court
could reasonably have concluded that counsel met
Strickland’s performance standard as to two of the alleged
deficiencies and that the remaining alleged deficiencies did
not prejudice Waidla.
Judge Miller concurred in part and dissented in part. He
wrote that the majority correctly rejected Waidla’s
challenges to his murder conviction, but that he would also
reject Waidla’s challenge to his death sentence. Judge
Miller emphasized that the California Supreme Court’s
rejection of Waidla’s ineffective assistance of counsel claim
requires this court’s deference, and that whatever the merits
of the majority’s view that counsel could have done a better
job presenting a “modest” case for mitigation, the California
Supreme Court’s contrary conclusion was not so obviously
wrong that its error lies beyond any possibility for
fairminded disagreement. He would reject Waidla’s
penalty-phase due-process claim for the reasons given by the
California Supreme Court.
4 WAIDLA V. DAVIS
COUNSEL
Seth P. McCutcheon (argued), Scott Hayward, and Michael
C. Keller, Deputy Attorneys General; Dana Muhammad Ali,
Supervising Deputy Attorney General; James William
Bilderback II, Senior Assistant Attorney General; Lance E.
Winters, Chief Assistant Attorney General; Rob Bonta,
Attorney General of California; Office of the California
Attorney General; Los Angeles, California, for Respondent-
Appellant.
Marta VanLandingham (argued), Tracy Casadio, Mark R.
Drozdowski, Craig A. Harbaugh, and Katherine Farkas,
Deputy Federal Public Defenders; Cuauhtemoc Ortega,
Federal Public Defender; Public Defenders’ Office; Los
Angeles, California, for Petitioner-Appellee.
WAIDLA V. DAVIS 5
OPINION
PER CURIAM:
A California jury sentenced Tauno Waidla to death for
the 1988 murder of Viivi Piirisild. The California Supreme
Court affirmed his conviction on direct appeal, People v.
Waidla, 996 P.2d 46 (Cal. 2000), and the United States
Supreme Court denied his petition for a writ of certiorari,
Waidla v. California, 531 U.S. 1018 (2000). This appeal
arises from the district court’s decision granting penalty
phase relief on Waidla’s petition for a writ of habeas corpus.
The State has appealed that decision and Waidla cross-
appeals the denial of guilt phase relief. We affirm.
I. Background
A
Tauno Waidla was born and raised in Estonia during its
occupation by the Soviet Union. In 1986, when Waidla was
18 years old, he was conscripted into the Soviet Army, an
institution known for mistreating Estonian soldiers. Waidla,
996 P.2d at 54. While stationed in East Germany, Waidla
escaped with a fellow Estonian, Peter Sakarias, into West
Germany. From there, Waidla and Sakarias sought and
received asylum in the United States in 1987. Id.Upon arriving in New York, Waidla and Sakarias were
received warmly by the Estonian émigré community there.
Id. In April 1987, Waidla moved to Los Angeles, where he
met Avo and Viivi Piirisild. The Piirisilds had relocated to
the United States from Estonia decades earlier and were
active members of the Baltic American Freedom League, an
organization devoted to fighting for the Baltic States’
independence from the Soviet Union. Id. The Piirisilds
6 WAIDLA V. DAVIS
invited Waidla to live with them shortly after meeting him.
He moved in and they paid for his food, clothes, and medical
care. They also offered to help him find employment. Id.Waidla had applied for a radio broadcasting job and accepted
occasional short-term jobs, but he was otherwise
uninterested in finding work or returning to school. Id.The Piirisilds asked Waidla to help them renovate their
home in exchange for his room and board. Id. at 54–55.
Waidla agreed and completed several significant projects.
Id. at 55. At some point, Viivi indicated that Waidla could
have the Piirisilds’ 1978 Triumph Spitfire if he started to
attend school or obtained a job. Id. Later, she promised him
the car for finishing certain home improvement projects.
Waidla sought to collect on Viivi’s promise in May
1988, claiming that he was owed for the work he had done
on the house. Id. Viivi refused because Waidla showed no
initiative to work or attend school and because the Piirisilds
had paid for his work by supporting him. Id. Waidla became
angry and threatened to report the Piirisilds for building
without a permit. Id. He also threatened to kill Avo and to
break his arm. Id. at 56. Viivi told him to pack and leave.
Id. Rita Hughes, the Piirisilds’ daughter, was able to calm
Waidla down and help him pack, after which he left
peacefully. Id.Waidla began traveling with Sakarias across the country
by car. While in Arizona, they sent Viivi a postcard
featuring a recipe for skinning, cutting up, and cooking
rattlesnake, on which they wrote: “You are as wise as the
rattlesnake.” Waidla also called the Piirisilds from the road
several times to ask for the car or the proceeds from its sale.
Id. During this period, Viivi expressed fear of Waidla and
WAIDLA V. DAVIS 7
Sakarias to several people, including her acquaintance
George Charon, a Federal Bureau of Investigation agent. Id.Waidla and Sakarias eventually made their way to
Boston, where Sakarias accepted a job to deliver a pickup
truck to San Francisco. Id. They drove to Los Angeles on
their way to San Francisco. On July 4, 1988, they went to
the Piirisilds’ home to ask again for the car. Viivi refused to
talk to them, so Avo spoke with them alone. Id. Avo told
them that he was unable to get the car’s title from the bank
due to the holiday and that he would be leaving town the next
day. He said that he would be gone for two weeks. Waidla
and Sakarias persuaded Avo to buy gas for the pickup truck
before they went on their way. Id. At some point, the two
drove to the Piirisilds’ cabin in Crestline, California, which
Waidla had visited as the Piirisilds’ guest in the past. Id. at
54, 56. They stayed there without permission for over a
week, eating the Piirisilds’ food and making calls. When
they left, they took a hatchet and various other possessions
that Sakarias later pawned. Id. at 56.
On July 12, the Piirisilds’ neighbor saw two men that he
later identified as Waidla and Sakarias walking toward the
Piirisilds’ home wearing jackets and carrying no bags. Id. at
56–57. When he saw them leave later, they carried bags and
they no longer wore jackets. Id. On July 14, a friend
checked on the Piirisilds’ house at Avo’s request because
Avo had not been able to reach Viivi. The friend found that
the kitchen door had been broken to allow entry and that
Viivi had been murdered inside.
The crime scene showed that Viivi was attacked as soon
as she walked into the house and was later moved from the
entryway to a bedroom, where she was covered with a
bedsheet. Id. at 57. She sustained multiple bludgeoning
8 WAIDLA V. DAVIS
wounds to the head consistent with blows from the blunt side
of a hatchet. Id. As a result, all of the bones on one side of
her face were broken. She had been stabbed four times in
the chest and suffered three head wounds caused by the sharp
edge of a hatchet. Id. One of the sharp-edged hatchet blows,
which was inflicted pre-mortem, was so forceful that it cut
through the top of her skull and left a flap of bone attached
only by scalp tissue. The others, which had been inflicted
post-mortem, left incisions on her forehead. Id. The medical
examiner testified that post-mortem abrasions he observed
on Viivi’s back could have been caused by dragging her
body from the entryway to the bedroom. The official cause
of death was the combined effect of the bludgeoning,
stabbing, and chopping wounds. Id.Police found seven fingerprints at the residence. One, on
the deadbolt cover of the kitchen door—the door that had
been broken to allow entry—was a match for Waidla. Id.Police also obtained saliva samples from two cigarette butts
found in the trash that matched Waidla’s, but not Sakarias’s,
blood type. Id.On July 12, Sakarias pawned two pieces of Viivi’s
jewelry and purchased two plane tickets to New York using
Viivi’s credit card. Id. While in New York, Waidla and
Sakarias stayed with an Estonian acquaintance, Andres
Juriado. When Juriado raised the news of Viivi’s murder,
Waidla and Sakarias changed the subject rather than engage
on the topic. Id.Over a month later, Waidla was arrested by United States
Border Patrol in New York near the United States-Canada
border on suspicion of crossing the border illegally. Id. He
carried a loaded gun in a backpack as well as an unsent letter
to Sakarias. The letter suggested that Waidla had considered
WAIDLA V. DAVIS 9
suicide but decided against it. He also wrote: “When you
hear that I am dead, then you should know that I’ve
[croaked] with a weapon in hand. If you hear that I have
been taken alive . . . (almost impossible) . . . then you should
know that I did my best.” Id. at 58.
While in custody in New York, Waidla initially invoked
his right to counsel during interrogation by a Border Patrol
agent. Id. at 69. However, he later waived his rights and
made incriminating statements to Los Angeles Police
Department (“LAPD”) Detective Victor Pietrantoni. Id. at
69–70. He initially denied any role in Viivi’s murder, telling
Pietrantoni that he and Sakarias had parted ways after
leaving the Piirisilds’ cabin in Crestline and that he had
hitchhiked to New York where he met up with Sakarias.
Confronted with incriminating evidence, he admitted greater
involvement. Waidla confessed to breaking into the
Piirsilds’ home with Sakarias with the intention of eating
food and asking Viivi about the Triumph Spitfire. At first,
he denied committing any acts of violence against Viivi,
claiming that when Viivi came home, he ran outside in fear
while Sakarias attacked Viivi. His retelling then changed a
final time, at which point he admitted that when Viivi came
home, he struck her once with a “hammer,” causing them
both to fall backwards. He stated that he did not see the rest
of the attack.
B
At trial, Waidla’s counsel sought to suppress his
confession and “put the prosecution to it’s [sic] proof that
Mr. Waidla was present and participated in the homicide.”
Counsel argued in a motion to suppress that because Waidla
had invoked his right to counsel when interrogated by a
Border Patrol agent, his later waiver of the right to counsel
10 WAIDLA V. DAVIS
was invalid. In a suppression hearing held near the end of
the State’s case Detective Pietrantoni testified that Waidla
had initiated their conversation. The trial court held that
Waidla’s waiver was therefore valid and admitted the
confession. Id. at 68–70.
Waidla’s counsel sought and obtained a short
continuance at the close of the State’s case to reformulate his
strategy because he had not expected the court to admit
Waidla’s confession. Counsel did not pursue a mental state
defense because two pretrial mental health evaluations had
found that Waidla had no psychiatric condition that could
have prevented him from forming the intent to kill. Without
investigating any avenues of defense further, counsel
advised Waidla that “he needed to testify to any bases for
repudiating the validity of the confession and any alibi.”
Waidla confirmed that he could truthfully recant his
confession.
At trial, Waidla testified that he was coerced by LAPD
detectives, who he said had threatened to hang him if he did
not repeat back a confession they fed to him. Id. at 58.
Familiar with the violent interrogation style of the KGB
from personal experience, Waidla said that he believed the
threat and did not feel free to deny his guilt. Id. He testified
that he had begun hitchhiking to New York before the
murder occurred, as he initially told Detective Pietrantoni.
Id.After four days of deliberation, the jury found Waidla
guilty of first-degree murder during the course of a burglary
and robbery with personal use of a deadly and dangerous
weapon, a capital crime.
WAIDLA V. DAVIS 11
C
Neither side presented additional evidence at the penalty
phase. Defense counsel stated on the record that he had
“sound tactical reasons” for resting on the mitigation
evidence elicited during the guilt phase. The trial court
agreed that counsel had put forth “a tremendous amount of
evidence about the defendant’s background.” The court
specifically referenced an article that Waidla published in a
Canadian newspaper giving a first-hand account of his time
in the Soviet Army. The article, entitled Escaping Through
the Fog, detailed the harsh conditions Waidla experienced
during his service. For example, he spent long periods in the
bitter cold, was given ill-fitting, dirty clothes, slept in
crowded spaces, and received abysmal medical care for a
respiratory infection. Waidla wrote that while in the military
hospital, “[a]ll wishes to exist disappear[ed].”
Waidla’s counsel later acknowledged that he had not
investigated any mitigating evidence aside from that
presented during the guilt phase. He did not seek out any
evidence related to Waidla’s positive adjustment to
incarceration, although he was aware that Waidla had not
been subject to any disciplinary proceedings while awaiting
trial. He also made no attempts to contact Waidla’s family,
friends, or acquaintances from Estonia to obtain background
or good character mitigation evidence. According to
counsel, Waidla “expressed considerable reluctance” when
it came to a social history investigation because he did not
want his family to know about his situation and because he
feared that Soviet authorities would retaliate against any
Estonian who aided in his defense. When counsel revisited
the question, Waidla acknowledged that his loved ones
likely knew about the case, but he remained concerned about
12 WAIDLA V. DAVIS
their safety. Ultimately, counsel “did not definitively
resolve the issue” with Waidla.
Counsel’s penalty phase argument principally pleaded
for the jury’s mercy. Counsel’s discussion of Waidla’s
struggles in the Soviet Army was limited to his observation
that “after three weeks in a Russian Army hospital Mr.
Waidla was so consumed by a desire for freedom . . . that he
risked everything to run.” Counsel also referenced the
limited information available about Waidla’s background
and character. He drew the jury’s attention to Waidla’s lack
of criminal history and youth. He recalled testimony from
Avo and Rita that Waidla had been friendly, nonaggressive,
and helpful around the house. Counsel argued that Waidla
had been cooperative with law enforcement. Finally,
counsel asked the jury to show Waidla mercy because he had
no one who could testify to his character, from which the
jury could infer that he was “essentially alone in this world.”
The State largely argued that the horrific nature of the
crime warranted death. The prosecutor detailed the brutality
of the attack. He described Viivi’s wounds in detail and
argued that Waidla had struck the “death blow” with the
sharp edge of the hatchet. He characterized the crime as
planned, calculated, and especially callous given the
kindness Viivi had shown Waidla.
The State also maligned Waidla’s character by
portraying him as a deserter from the Soviet Army and as a
lazy “parasite” who believed that “he deserved to be taken
care of,” citing his refusal to look for work or attend school.
The State suggested that Waidla had a propensity for
violence because he had been willing to harm others during
his escape from the Soviet Army if the need arose and
because he carried a loaded gun when Border Patrol agents
WAIDLA V. DAVIS 13
arrested him, which his unsent letter to Sakarias suggested
he might use to harm any officer who tried to arrest him.
According to the State, these incidents “revealed his violent
nature” and showed that “killing doesn’t mean anything to
Mr. Waidla.”
After hearing no new evidence and less than a day’s
worth of argument at the penalty phase, the jury went on to
deliberate over the course of nine days. On day three, the
jury sent a note asking what would happen if the jurors could
not reach unanimity. Waidla, 996 P.2d at 80. On day five,
the jury sent a note stating that it was deadlocked. Id. A poll
of the jurors revealed that ten of twelve believed they could
not come to a unanimous verdict. Still, the court asked the
jury to continue deliberating. Id. On day nine, the jury
returned a death verdict. Id.D
Waidla filed state habeas corpus petitions in 1999 and
2001. In them, he asserted, among other claims, ineffective
assistance of counsel at the guilt and penalty phases,
prosecutorial misconduct, and failure to suppress his
confession as required by the Fifth Amendment.
In support of his claim of ineffective assistance of
counsel at the penalty phase, Waidla offered three categories
of mitigation evidence that could have been presented had
counsel conducted an adequate investigation: (1) evidence
of his psychosocial history and character; (2) evidence of the
abuse faced by Estonians serving in the Soviet Army; and
(3) evidence that he had behaved well in custody prior to
trial.
Mare Pork, a professor of clinical psychology in Estonia,
interviewed Waidla’s family members, friends, and teachers.
14 WAIDLA V. DAVIS
Dr. Hillevi Ruumet, an Estonian-American clinical
psychologist, conducted interviews that corroborated the
information gleaned from Pork’s interviews. We recount
their relevant combined findings.
Waidla’s parents asked Waidla’s great-uncle Gunnar and
Waidla’s grandmother Linda to raise him when he was just
one month old. Waidla saw his mother only occasionally
after that, and essentially never saw his father. When Waidla
was 11 years old, Linda developed a debilitating brain
tumor. From that time until she passed several years later,
she became “uncontrollably abusive” to those around her.
Waidla became very attached to Gunnar, who “in many ways
took the place of both mother and father” for Waidla. As a
teen, Waidla’s favorite cousin and an aunt who had taken on
the role of his primary female caregiver died in a house fire,
which devastated him. In all, three maternal figures—his
mother, grandmother, and aunt—abandoned him or passed
away before Waidla turned 15.
Waidla displayed a “strong will to succeed” and a “desire
for excellence” in his athletic pursuits. He attended a
prestigious sports school for marksmanship, where his coach
recalled that Waidla “was the best shooter in his [grade] and
the only one who spent more hours training than was
required by the overall training schedule.” Although he
focused more on sports, he also maintained adequate grades.
Waidla developed a “reputation among his teachers and
coaches [for] having a lot of willpower and a desire to fight
for justice.” According to a family friend who was a well-
known photographer, Waidla also showed a facility for
photography. He published several photographs in
magazines and newspapers.
WAIDLA V. DAVIS 15
According to Gunnar, Waidla “never showed a violent
or aggressive nature” in social environments and was not one
to get into fights with peers. Waidla’s primary
marksmanship coach similarly recalled that Waidla “was a
consistently peaceable and non-violent youth, who was
never aggressive or bullying toward his classmates or other
competitors.” Other coaches and students at the school
concurred in that assessment.
Psychologist Dr. Myla Young evaluated Waidla to
determine whether he posed a risk of violence in a carceral
setting. Personality testing showed that Waidla had a “pro-
social orientation” and was a “fundamentally non-violent,
non-confrontational individual.” Over the ten years she had
spent evaluating individuals in criminal proceedings, Waidla
exhibited “fewer risk factors to violence than any individual
[she had] ever examined.”
Dr. Young reviewed information about Waidla’s
background, which supported her clinical findings. She
opined that Waidla had “a very difficult and stressful early
life.” She found it notable that despite the “traumatic
separation” from his parents, Waidla “was able to achieve
strong psychological and emotional bonding with his Great-
Uncle Gunnar and other members of the family.” These
connections “permitted Mr. Waidla to develop [an] intact
personality structure.” Waidla’s well-formed personality
structure was consistent with “the positive efforts he made
within the family and in his academic and athletic efforts,”
as well as his “impeccable record of peaceableness [sic]”
outside of Viivi’s murder. Dr. Young concluded that
Waidla’s was “a very unusual case in which an otherwise
pro-social, law-abiding, and high-achieving individual
lapsed into a momentary assaultive outburst . . . and has led
an entirely non-violent life both before and afterward.”
16 WAIDLA V. DAVIS
Dr. Ruumet also conducted clinical interviews of
Waidla. Based on those interviews and her assessment of
Waidla’s background, she confirmed the psychological
conclusions reached by Dr. Young. Her clinical evaluation
showed that Waidla was “passive, intelligent, socially
appropriate and invested in giving a good impression,
respectful of authority, diffident, and avoidant of any
confrontation or physical violence.” In fact, she found that
Waidla displayed a “characterological aversion to
confrontation and violence.”
Next, Waidla offered postconviction evidence of the
cruelty endured by Estonian conscripts in the Soviet Army.
Dr. Ruumet declared that serving in the Soviet Army in the
1980s as an Estonian was “a guarantee of extended physical
beatings and brutality” and carried a serious risk of death.
Hazing was rampant and “any superior could, with total
impunity, inflict any kind of physical or mental suffering on
any inferior at any time and for any (or no) reason.” Dr.
Ruumet conveyed the story of an Estonian soldier who died
of kidney failure because he was denied water as a form of
punishment. Such stories were not “isolated incident[s].”
These conditions were the product of Russians’ longstanding
prejudice against Estonians, with whom Russians had ethnic
and linguistic differences. Waidla sent a letter to family
during his service asking for their help, in which he
expressed suicidal thoughts and fear for his life.
Finally, Waidla provided evidence that he had adjusted
to incarceration without disciplinary incident. The State
produced a memorandum authored by the District
Attorney’s office evaluating whether the death penalty was
appropriate for Waidla and Sakarias in January 1989, several
months after Waidla’s arrest (the “DA memo”). The DA
memo reported that while incarcerated, Sakarias had been
WAIDLA V. DAVIS 17
found in possession of weapons several times. Whereas
Sakarias had been designated an escape risk and the DA
memo concluded that he was “a danger to others even while
in custody,” the memo was silent as to Waidla’s disciplinary
history and observed that Waidla did not “evidence the same
degree of danger to society.”
Waidla submitted a declaration detailing his positive
experience in Wayside Maximum Security, where he was
incarcerated for three months prior to trial. He applied for
and obtained jobs in the kitchen and maintenance units. He
received a uniform reserved for inmates with a clean
behavioral record as well as a pass that allowed him to work
outside of the dormitories. He swept, passed out toilet paper,
and buffed floors. Waidla spent his free time in the library
reading the newspaper and improving his English. Unlike
most inmates, he was allowed to read in the library rather
than taking his reading materials to his cell.
When Waidla was transferred to San Quentin State
Prison after trial, California Department of Corrections
officials conducted Waidla’s orientation review to assign
him housing (the “CDC document”). The committee
verified Waidla’s statement that he had “no problems
programming in the county jail” by contacting the jail.
Officials there “stated that Waidla was not a disciplinary
problem and programmed well with other inmates.”
E
The California Supreme Court rejected Waidla’s Fifth
Amendment claim on direct appeal, Waidla, 996 P.2d at 71,
denied relief on Waidla’s prosecutorial misconduct claim in
a reasoned opinion, In re Sakarias, 106 P.3d 931, 950 (Cal.
2005), and summarily denied his ineffective assistance of
counsel claims on the merits. On federal habeas review, the
18 WAIDLA V. DAVIS
district court granted relief on Waidla’s claim of ineffective
assistance at the penalty phase and rejected Waidla’s
remaining claims. The State appeals the decision granting
penalty phase relief and Waidla cross-appeals the denial of
relief on his prosecutorial misconduct, Fifth Amendment,
and guilt phase ineffective assistance claims. The
Antiterrorism and Effective Death Penalty Act of 1996
governs our review because the California Supreme Court
rejected each of the claims at issue here on the merits. See
28 U.S.C. § 2254(d). We begin our discussion with the
State’s appeal before turning to Waidla’s cross-appeal.
II. Penalty Phase Claims
Waidla’s sole claim of error at the penalty phase is that
his counsel rendered ineffective assistance by failing to
investigate and present mitigation evidence that competent
counsel would have discovered. Strickland v. Washington,
466 U.S. 668 (1984), sets out the standard for ineffective
assistance of counsel claims. Under Strickland, Waidla must
first show that his counsel’s performance “fell below an
objective standard of reasonableness” under prevailing
professional norms. Id. at 688. Strickland creates a strong
presumption that counsel’s performance “falls within the
wide range of reasonable professional assistance.” Id. at
689. Counsel’s strategic decisions, if “made after thorough
investigation of law and facts,” are “virtually
unchallengeable.” Id. at 690. We assess a particular
decision not to investigate or to limit the scope of
investigation for reasonableness. Id. at 691.
If Waidla can show that counsel’s performance was
deficient, he must then establish prejudice. Id. at 694. To
assess prejudice at the penalty phase, we reweigh all of the
evidence in aggravation and mitigation and ask whether, had
WAIDLA V. DAVIS 19
counsel provided competent representation, “there is a
reasonable probability that at least one juror would have
struck a different balance.” Wiggins v. Smith, 539 U.S. 510,
537 (2003); see also id. at 534, 536.
When 28 U.S.C. § 2254(d) applies, we defer to a state
court’s decision unless it “was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States,”
or “was based on an unreasonable determination of the facts
in light of the evidence presented in the State court
proceeding.” When reviewing a state court decision for
which there is no reasoned opinion, we must consider any
arguments that could have supported the state court’s
decision. See Harrington v. Richter, 562 U.S. 86, 102
(2011). We may grant Waidla habeas relief only if “there is
no possibility fairminded jurists could disagree that the state
court’s decision conflicts with [the Supreme] Court’s
precedents.” Id.We hold that the California Supreme Court unreasonably
applied Strickland’s standard in evaluating Waidla’s claim
of ineffective assistance at the penalty phase. Had the three
categories of evidence that counsel should have discovered
been presented to the jury, there is a reasonable probability
that at least one juror would have voted against the death
penalty.
A
We begin with the adequacy of counsel’s investigation
of mitigation evidence. Counsel admittedly conducted no
investigation into mitigation evidence beyond any incidental
investigation he made of evidence relevant at the guilt phase.
Competent counsel would have sought out and introduced
evidence concerning Waidla’s background and character,
20 WAIDLA V. DAVIS
the hardship Estonians faced in the Soviet Army, and
Waidla’s good behavior while in custody awaiting trial.
Counsel’s disregard for all three possible mitigation
strategies makes clear that his incompetence is “beyond any
possibility for fairminded disagreement.” Harrington, 562
U.S. at 103.
Background and Character Evidence. The record shows
that counsel “abandoned [his] investigation of petitioner’s
background after having acquired only rudimentary
knowledge of his history from a narrow set of sources,”
thereby violating basic professional standards. Wiggins, 539
U.S. at 524; see also Apelt v. Ryan, 878 F.3d 800, 831 (9th
Cir. 2017) (“There can be no doubt that counsel was required
to review a defendant’s background in preparation for
sentencing.”). The duty to investigate a defendant’s social
history was as foundational at the time of trial as it is now.
Practice guidelines in effect in 1990, which guide our
analysis of what qualifies as reasonable professional
conduct, Strickland, 466 U.S. at 688, stated that “[c]ounsel
in a capital case is obligated to conduct a thorough
investigation of the defendant’s life history and
background.” ABA Guidelines for the Appointment and
Performance of Counsel in Death Penalty Cases 8.1,
commentary (1989). Abdicating this duty, counsel
interviewed Waidla alone and did not procure any
psychological or psychosocial evaluations.
Waidla’s resistance to having counsel perform a social
history investigation did not eliminate counsel’s duty to
investigate his background. To be sure, “[c]ounsel’s actions
are usually based, quite properly, on informed strategic
choices made by the defendant.” Strickland, 466 U.S. at
691. But counsel “never made a serious attempt to educate
[Waidla] about the consequences of his decision.” Silva v.
WAIDLA V. DAVIS 21
Woodford, 279 F.3d 825, 841 (9th Cir. 2002). We
acknowledge that Waidla’s concern for the safety of
Estonian witnesses was legitimate and genuinely held. Still,
that concern was only part of the calculus. Counsel himself
admitted that, far from fully advising Waidla on the benefits
and drawbacks of an investigation, he “did not definitively
resolve the issue” with Waidla. In fact, Waidla realized that
one basis for his reluctance to have counsel contact
witnesses in Estonia was unreasonable, showing that he
continued to actively consider the issue. Failing to advise
Waidla of the importance of mitigation evidence was
especially detrimental because, as Waidla stated in his
declaration, he “did not have an understanding of the
American legal system [and] did not know what would
constitute a presentation of ‘mitigation’ evidence.”
The State’s comparisons to the investigations held
competent in Strickland and Burger v. Kemp, 483 U.S. 776(1987), are unconvincing. Counsel in both cases made an
informed strategic decision to limit their social history
investigations because they knew that presenting social
history evidence would prove harmful. In Strickland,
counsel sought to avoid opening the door to evidence of the
defendant’s criminal history, bad character, and intact
psyche. See 466 U.S. at 672–74, 699. In Burger, counsel
sought to keep the defendant’s criminal history from the
jury, as well as testimony from family and acquaintances
about his drug use and violent tendencies. 483 U.S. at 791–
95. Counsel also reasonably decided against a mitigation
strategy that required testimony from the defendant, who
showed a lack of remorse and, according to a psychologist,
might have bragged about the crime on the witness stand. Id.No such concerns are evident in this case. Waidla had
no criminal history and his social history would not have
22 WAIDLA V. DAVIS
revealed any significant prior bad acts. Further, no
psychological expert identified him as a liability on the stand
and he expressed deep remorse for Viivi’s murder. Thus,
Strickland and Burger are not instructive on this point.
Finally, although counsel would have faced logistical
hurdles to investigating abroad, those challenges did not
eliminate counsel’s duty to investigate. In Apelt v. Ryan, a
case governed by 28 U.S.C. § 2254(d), we considered
whether counsel had performed deficiently in representing a
capital defendant who had lived in Germany until six months
before the crime. 878 F.3d at 805, 830–31. Since counsel
was aware that a social history investigation could have
revealed useful mitigation evidence, we held that he had
rendered ineffective assistance because his co-counsel made
only one trip to Germany and was unable to communicate
with the defendant’s German-speaking family while there.
Id. As in Apelt, Waidla’s counsel was on notice of the need
for a social history investigation. He knew that Waidla’s
upbringing was not traditional in that Waidla had not been
raised by his parents. That counsel broached the question of
investigating in Estonia with Waidla multiple times shows
that he was aware of the significance of a social history
investigation. Yet, as in Apelt, counsel fell short of
professional standards by abandoning his efforts to
investigate through travel to Estonia or other means. Id.Moreover, the record shows that investigating in Estonia,
while more challenging than a domestic investigation, would
not have been the “dauting task” the State claims. In 1989
and 1990, communication between the United States and
Estonia was possible via fax, phone, and mail. Dr. Ruumet
reports that by June 1990, “the Soviet regime had loosened
enough to allow relatively unfettered travel in and out of the
country.” And although a personal visit by counsel to
WAIDLA V. DAVIS 23
Estonia may have been possible, counsel need not have
personally traveled to Estonia, as Professor Pork would have
interviewed Waidla’s family and acquaintances on counsel’s
behalf. Because California provides indigent defendants
with funding for efforts “reasonably necessary for the
preparation or presentation of the defense” upon an
application by counsel, Cal. Penal Code § 987.9(a), the costs
of international investigation were not insurmountable.
Notably, counsel in Sakarias’s trial, which occurred within a
year of Waidla’s trial, was able to obtain social history
interviews from Sakarias’s family and friends in Estonia. In
re Sakarias, 106 P.3d at 936, 949. Thus, counsel’s violation
of minimum professional standards was not excused by
logistical barriers.
Mistreatment in the Soviet Army. Counsel’s duty to
investigate a defendant’s social history no doubt includes an
obligation to seek out evidence of childhood hardship
because “[e]vidence of abuse inflicted as a child is especially
mitigating.” Andrews v. Davis, 944 F.3d 1092, 1117 (9th
Cir. 2019) (en banc).
Waidla was still a teenager when he was conscripted into
the Soviet Army. Waidla, 996 P.2d at 54. Counsel was
aware of this chapter in Waidla’s life because Waidla’s
article, Escaping Through the Fog, detailed the experience
to an extent. Yet counsel did not argue that Waidla’s
hardships were relevant to the jury’s decision, nor did he
attempt to obtain additional contextual evidence about the
indignities visited on Estonian conscripts in the Soviet
Army.
Had counsel investigated, he would have found that in
addition to the crowded lodging, repeated exposure to bitter
cold, and inadequate medical care described in Waidla’s
24 WAIDLA V. DAVIS
article, Estonian soldiers often encountered serious physical
abuse and even death at the hands of Russian soldiers and
officers. Counsel would have learned of the psychological
impact that looming danger had on Waidla, whose letter to
his family begging for help spoke to his despondency and
fear. Armed with this evidence, competent counsel would
have argued that Waidla’s time in an abusive institutional
setting detracted from his culpability.
The State makes much of the fact that the jury had access
to some evidence about Waidla’s time in the Soviet Army.
Escaping Through the Fog was introduced during the guilt
phase and in his testimony, Avo indicated he agreed with the
statement that “traditionally draftees from the Baltic States
were not treated very well in the Soviet Army.” According
to the State, the jury’s awareness of this evidence eliminated
any need for counsel to investigate cumulative evidence
concerning the abuse endured by Estonian soldiers. We
disagree. The State improperly emphasizes the mere
existence of evidence in the record while disregarding
counsel’s obligation to explain the relevance of that evidence
to the jury. The State also overstates the cumulative nature
of the postconviction evidence.
First, counsel’s obligations do not end at ensuring that
mitigation evidence is accessible to the jury. That is all that
counsel did with respect to Waidla’s time in the Soviet
Army. Avo’s testimony did not make an appearance in
counsel’s guilt or penalty phase arguments. Counsel also
never argued at the penalty phase that Waidla’s article
evidenced hardship that ought to inform the jury’s
sentencing decision. Nor did this evidence feature in the
State’s case in a way that would alert the jury to its
mitigating force. The State referenced the article for its
discussion of Waidla’s escape from the Soviet Army, not its
WAIDLA V. DAVIS 25
description of his experiences prior to escape. It was
incumbent on counsel not just to make sure that this
mitigation evidence made it to the jury, but to identify its
existence and to argue its relevance. See Rogers v.
Dzurenda, 25 F.4th 1171, 1189 (9th Cir. 2022) (finding
deficient performance when counsel’s opening statement
gave the jury “inadequate context for how the evidence
would relate to the insanity defense”). Counsel failed to
fulfill that aspect of his professional duty.
Perhaps the glaring omission of the argument that
Waidla’s mistreatment in the Soviet Army reduced his
culpability could be excused as a strategic decision. Such
strategic decisions, when reasonably well-informed, are
entitled to deference. Strickland, 466 U.S. at 690. But even
if we could conceive of a strategic purpose for leaving this
mitigation evidence unmentioned, counsel did not make a
decision with the benefit of all of the evidence at his
disposal. After proper investigation, counsel could have
made a significantly more forceful version of the argument
that Waidla was mistreated in the Soviet Army, as discussed
below. Thus, any strategic decision was fatally
underinformed.
Nor could a fairminded jurist conclude that it was
reasonable to eschew further investigation on the theory that
only cumulative evidence could be obtained. Waidla’s
article only vaguely references the hostility between
Estonian and Russian soldiers and does not adequately
convey the extent of the power disparity favoring the
Russians. Avo attested to the power imbalance to some
extent, but provided no detail about the nature of the abuse,
nor did he testify about the practices in effect during
Waidla’s service. This evidence left a significant gap in
26 WAIDLA V. DAVIS
explaining the severity of the likely abuse as well as its
systemic nature.
Bobby v. Van Hook, 558 U.S. 4 (2009), on which the
State relies, is inapposite. There, because counsel had
gathered significant evidence of the defendant’s abusive
family life, he was reasonable to forego obtaining additional,
likely cumulative, testimony on that topic from more distant
relatives. Id. at 10–12. In contrast, it should have been clear
to Waidla’s counsel that he could have sought out evidence
not just corroborating Waidla’s article but providing much-
needed context for it.
We are not persuaded by the State’s contention that
“cumulative evidence that other soldiers were also
mistreated lacked any real significance, especially if Waidla
was not aware of the circumstances.” First, according to Dr.
Ruumet, the risks to Estonian conscripts were so widely
known that Estonians frequently took measures to avoid
placement in units with more Russian soldiers, like the one
Waidla ended up in, which were especially dangerous. Thus,
Waidla surely understood the scope of the danger that
awaited him.
Second, it is highly relevant that Estonian soldiers were
subjected to widespread, state-sanctioned abuse rooted in
prejudice. Without that context, the jury could have
misinterpreted Waidla’s account of harsh training tactics and
fights between Estonian soldiers and their Russian
counterparts as commonplace drills and roughhousing rather
than sanctioned institutional abuse. The information
provided by Dr. Ruumet would have also supported an
argument that Waidla did not just endure run-of-the-mill
discomforts while serving, but also suffered significant fear
and emotional distress, as shown by Waidla’s desperate
WAIDLA V. DAVIS 27
letter to family requesting that, as Dr. Ruumet paraphrased,
they “try to save him.” Because context was so crucial to
understanding Waidla’s experience, counsel could not have
reasonably forgone investigation into this mitigation
strategy simply because the jury had access to Waidla’s
account.
Good Behavior in Custody Awaiting Trial. It is well
established that “evidence that the defendant would not pose
a danger if spared (but incarcerated) must be considered
potentially mitigating.” Skipper v. South Carolina, 476 U.S.
1, 5 (1986); see also Williams v. Taylor, 529 U.S. 362, 396
(2000) (failure to present, inter alia, prison guard testimony
that defendant was not dangerous or violent as well as prison
records demonstrating good behavior contributed to finding
of deficient performance). The import of such mitigating
evidence is particularly clear when the State argues for the
death penalty on the ground that a defendant “could not be
trusted to behave if he were simply returned to prison.”
Skipper, 476 U.S. at 5 n.1. Here, the State made a similar
argument by telling the jury that Waidla had a “violent
nature” and that killing meant nothing to him.
Counsel was on notice that, contrasting with the State’s
narrative that Waidla posed a risk of future violence, Waidla
had not encountered any disciplinary issues while
incarcerated pending trial. Yet counsel ignored this
“tantalizing indication[] in the record,” Stankewitz v.
Woodford, 365 F.3d 706, 720 (9th Cir. 2004), of a possible
mitigation strategy based at least in part on Waidla’s good
behavior. Counsel’s failure to pursue this viable strategy
was unreasonable. We consider in turn the State’s
arguments to the contrary, finding each unpersuasive.
28 WAIDLA V. DAVIS
First, the California Supreme Court could not reasonably
have found counsel’s performance adequate by disregarding
Waidla’s evidence as inadmissible or conclusory. To make
out a prima facie case in a California habeas petition, a
petitioner must attach “reasonably available” documentation
supporting his allegations. People v. Duvall, 886 P.2d 1252,
1258 (Cal. 1995). A petitioner may not rely on hearsay
evidence to make out a prima facie case, People v. Madaris,
122 Cal. App. 3d 234, 241–42 (1981), overruled on other
grounds by People v. Barrick, 654 P.2d 1243, 1250 (Cal.
1982), nor on “subjective, self-serving” statements, In re
Alvernaz, 830 P.2d 747, 756–57 (Cal. 1992). Looking to this
procedure, the State argues that the California Supreme
Court could have declined to consider the CDC document
noting that Waidla behaved well in county jail as hearsay and
could have found Waidla’s remaining evidence conclusory.
Fairminded jurists would agree that Waidla offered
enough admissible evidence to show that counsel rendered
ineffective assistance. That is true even assuming the CDC
document is inadmissible hearsay. Waidla’s declaration
explaining the privileges he accrued in county jail for good
behavior may be self-serving, but it is hardly conclusory.
The declaration explains, based on Waidla’s personal
knowledge, that he enjoyed freedoms reserved for well-
behaved prisoners like the ability to read in the library and
the ability to leave the dormitories for his job. That evidence
is more than a bare allegation of good behavior. See SEC v.
Phan, 500 F.3d 895, 909 (9th Cir. 2007) (differentiating self-
serving declarations from conclusory ones that offer no
admissible facts).
Waidla’s declaration, which speaks to three months of
his confinement, is corroborated by other evidence. The DA
memo recommends seeking the death penalty for Sakarias
WAIDLA V. DAVIS 29
but not Waidla in part because Waidla, unlike Sakarias, did
not face disciplinary action during the first several months
of his confinement. The State does not argue that the DA
memo is inadmissible hearsay and we have previously
considered the State’s decision to seek or not seek the death
penalty against a co-defendant in this context. See Sanders
v. Davis, 23 F.4th 966, 994 (9th Cir. 2022). The declaration
is also corroborated by Waidla’s lack of criminal history and
Dr. Young’s opinion concerning his nonviolent personality
structure. Waidla’s evidence is, therefore, far from
conclusory. 1
Second, the State argues that the California Supreme
Court properly denied this subclaim because counsel’s
declaration “sheds no light on Waidla’s behavior while in
custody or trial counsel’s decisions concerning such
behavior.” Not so. Counsel was aware that “there were no
disciplinary proceedings against Mr. Waidla.” True, he gave
no explanation for his failure to investigate the matter, but
he admitted that he conducted no investigation whatsoever.
It is therefore clear that his decision not to pursue this
strategy did not stem from strategic insight gained after
1
Typically, upon finding that a state court decision violated 28 U.S.C. §
2254(d), the federal habeas court undertakes de novo review of the claim
before granting relief. See Frantz v. Hazey, 533 F.3d 724, 737 (9th Cir.
2008) (en banc). The district court did not explicitly conduct de novo
review. On appeal, the State takes issue only with the district court’s §
2254(d) analysis. Accordingly, the State has forfeited any objection that
the district court erred by granting relief based on the evidence submitted
in support of Waidla’s petition rather than evidence adduced in a new
evidentiary hearing. To the extent the State makes an argument limited
to this subclaim that the district court should have required admissible
evidence of Waidla’s good behavior before granting relief, we find that
argument unavailing because Waidla’s evidence apart from the CDC
document could have been rendered in admissible form.
30 WAIDLA V. DAVIS
additional investigation. The State cites no authority for the
proposition that trial counsel must affirmatively state that he
lacked a strategic purpose, and we will not adopt that rule
here.
Moreover, we cannot discern from the record any
strategy that might have justified counsel’s inaction. Any
suggestion that counsel could reasonably have decided
against investigating on the theory that juries are usually
unpersuaded by good behavior evidence is untenable. It
would be difficult to reconcile that view with Skipper’s
holding that good behavior evidence must be admitted as
mitigation, see 476 U.S. at 5, let alone Williams’s holding
that counsel was deficient in part for not gathering such
evidence, 529 U.S. at 396. See also Deck v. Missouri, 544
U.S. 622, 633 (2005) (noting that whether the defendant is
“a danger to the community” is “nearly always a relevant
factor in jury decisionmaking, even where the State does not
specifically argue the point”).
Finally, the State contends that presenting good behavior
evidence could have indicated to the jury that no better
mitigation evidence was available. But had counsel
conducted an adequate investigation, Waidla’s good
behavior in custody while awaiting trial would not have
stood alone in Waidla’s mitigation case. It would have stood
alongside and complemented the other evidence we have
already found counsel could have introduced. Thus,
counsel’s failure did not stem from a reasonable strategic
judgment, but from an oversight that cannot be squared with
even Strickland’s forgiving standard.
B
Having concluded that counsel performed deficiently by
failing to introduce and argue several categories of
WAIDLA V. DAVIS 31
mitigation evidence, we must now determine whether
counsel’s incompetence prejudiced Waidla. To do so, we
reweigh the aggravation evidence against the mitigation
evidence that ought to have been presented to the jury.
Wiggins, 539 U.S. at 534.
One factor relevant to assessing whether a reasonable
probability exists that one juror would have voted differently
is the jury’s behavior at trial. Long deliberations relative to
the complexity of the case and indications of close jury
deliberations “weigh against a finding of harmless error
because [they] suggest a difficult case.” United States v.
Velarde-Gomez, 269 F.3d 1023, 1036 (9th Cir. 2001) (en
banc) (internal quotation marks and citation omitted);
Noguera v. Davis, 5 F.4th 1020, 1045 (9th Cir. 2021). 2 We
also consider the strength of the aggravation evidence and
the nature and quality of the mitigation evidence originally
presented in comparison to the nature and quality of the new
mitigation evidence. See Wiggins, 539 U.S. at 537–38.
With these factors in mind, we conclude that the
California Supreme Court could not reasonably have found
2
The State contends otherwise. In its view, lengthy jury deliberations
do not necessarily signify jury indecision. But the jury notes indicating
deadlock gave a clear picture about the reason for its long deliberations.
The State also hypothesizes that the jury’s deadlock could have been
unrelated to the balance of mitigation and aggravation evidence and
instead caused by, for instance, a juror’s misunderstanding of an
instruction. But jury questions indicating deadlock show that the death
sentence “was not a foregone conclusion, especially given that the jurors’
only task at that point was to decide between a sentence of life without
parole and death.” Silva, 279 F.3d at 849–50. Even if the jury had been
preoccupied with a mitigation factor unrelated to Waidla’s background
or character, evidence on those factors could have moved an uncertain
jury to weigh the totality of the circumstances differently.
32 WAIDLA V. DAVIS
that counsel’s failures were non-prejudicial. The jury
delivered a death sentence knowing very little about
Waidla’s background and positive qualities. Even so, it took
the jury nine days of deliberation and two bouts of deadlock
to reach a verdict. No fairminded jurist considering a jury
so closely divided could discount the prejudicial effect of
failing to present even modest evidence of Waidla’s
background and good character.
The difference between the mitigation evidence actually
presented and the evidence that competent counsel would
have presented is significant. As the background evidence
the jury heard was scant, we have no trouble recounting it
again here: Waidla was born in Estonia, a country then
occupied by the Soviet Union, and was raised by family
members other than his parents. He testified that he had two
encounters with the KGB as a teen in which he was detained
and beaten for allegedly protesting against the Soviet Union.
At age 18, he was conscripted into the Soviet Army, where
Estonians were generally not treated well. If the jury in fact
read Escaping Through the Fog, which is not clear from the
record, it would have learned that Waidla experienced harsh
living conditions and once fled from a brawl between
Russian and Estonian soldiers, before falling ill and
ultimately escaping. While living with the Piirisilds, Waidla
was typically friendly and demonstrated his construction
skills by completing several home improvement projects.
He was just 20 at the time of the crime and had committed
no prior felonies. Finally, Waidla cooperated with law
enforcement after his arrest.
Waidla’s mitigation case at trial essentially amounted to
an incomplete picture of the adversity he faced in the Soviet
Army, his age, and his lack of criminal history. The
sparseness of this evidence is akin to counsel’s presentation
WAIDLA V. DAVIS 33
in Wiggins, where the “sentencing jury heard only one
significant mitigating factor—that Wiggins had no prior
convictions,” 539 U.S. at 537, as well as that in Porter v.
McCollum, 558 U.S. 30 (2009) (per curiam), where the
mitigation case consisted of “inconsistent testimony about
Porter’s behavior when intoxicated and testimony that Porter
had a good relationship with his son,” id. at 32.
If Waidla had been competently represented, the jury
would have heard much more. To start, competent counsel
would have made the jury aware of Waidla’s many positive
character traits. One such trait was Waidla’s strong work
ethic. Waidla worked hard at marksmanship as a teen,
showing dedication and skill that surpassed his peers. He
also excelled in photography, having worked under the
tutelage of his great-uncle Gunnar to learn the proper
techniques. In jail pending trial, Waidla worked
maintenance and kitchen duty jobs, which entailed physical
labor like buffing floors. He spent free time in the library
strengthening his English and reading newspapers.
Waidla’s consistent dedication to his pursuits could have
undercut the State’s portrayal of Waidla as entitled and
parasitic. Counsel would have also directly refuted the
State’s contention that Waidla was lazy by referring to the
testimony from Dr. Ruumet, who opined that Waidla’s
perceived laziness was possibly attributable to depression
brought on by “circumstances in which he had lost his whole
support system and in which he felt helpless and
overwhelmed.” Dr. Ruumet’s analysis was in line with Dr.
Young’s assessment, based on psychological testing, that
“depression is an underlying component of Waidla’s
character.”
34 WAIDLA V. DAVIS
Another character trait of note was Waidla’s pro-social
nature and his “characterological aversion to confrontation
and violence.” Loved ones, acquaintances, and coaches all
attested to Waidla’s distaste for conflict and his peaceable
disposition. Dr. Young opined that Waidla was the least
violence-prone prisoner she had ever evaluated in the
context of criminal proceedings. This testimony would have
complemented and added credibility to evidence counsel
could have presented of Waidla’s compliant and nonviolent
behavior while in jail awaiting trial. There, guards and a
librarian afforded him special privileges that would not have
been fitting for a dangerous prisoner. The State suggests that
evidence of Waidla’s good behavior in jail would not
influence jurors who knew that he carried a loaded gun and
a threatening note at the time of his arrest. We disagree
because that assessment disregards the character evidence
that likewise points to his peaceful nature.
Evidence of Waidla’s lack of future dangerousness
would have undermined the State’s contention that Waidla
had a “violent nature,” and that “killing doesn’t mean
anything” to him. That much is clear from Skipper, in which
the relevance of similar evidence was “underscored . . . by
the prosecutor’s closing argument, which urged the jury to
return a sentence of death in part because petitioner could
not be trusted to behave if he were simply returned to
prison.” 476 U.S. at 5 n.1.
Competent counsel would have introduced the evidence
that Waidla was conscripted into the Soviet Army, where it
was common knowledge that Estonians were targeted for
serious physical and emotional abuse. Even if the jury took
the time to review Waidla’s article closely, which we cannot
be sure of, it would not have known the full extent of the
possible danger to Waidla. Waidla’s depiction of his
WAIDLA V. DAVIS 35
experiences in the Soviet Army takes on new meaning when
viewed in proper context, namely, a context of
institutionalized and prejudice-based abuse that could prove
fatal. The postconviction evidence therefore revealed the
true nature of the psychological toll that conscription took
on Waidla.
Finally, competent counsel would have presented the
humanizing evidence about Waidla’s strong bonds to family
members, including his great-uncle Gunnar, whom Waidla
idolized and, according to Gunnar, related to as “both mother
and father.” The jury would have learned that Waidla’s
connections to family enabled him to withstand the
hardships of his early life. This evidence would have
allowed the jury to view Waidla as a three-dimensional
person with the ability to form meaningful connections, a
stark contrast from the caricature of a callous murderer
presented by the State. See Porter, 558 U.S. at 41 (“The
judge and jury . . . heard almost nothing that would humanize
Porter or allow them to accurately gauge his moral
culpability.”).
In sum, competent counsel would have rounded out the
jury’s understanding of Waidla’s humanity and positive
qualities. At the same time, counsel would have marshalled
the evidence to counter the State’s arguments that Waidla
was lazy, dangerous, and cruel. Our confidence in the jury’s
verdict is undermined because “the task [the jury] actually
undertook differed so profoundly from the one it would have
performed had [Waidla’s] counsel not been deficient.”
Boyde v. Brown, 404 F.3d 1159, 1180 (9th Cir. 2005), as
amended, 421 F.3d 1154 (9th Cir. 2005).
We are unpersuaded that Waidla’s mild resistance to
having counsel contact his loved ones and acquaintances in
36 WAIDLA V. DAVIS
Estonia eliminates the prejudice associated with counsel’s
failure to do so, as in Schriro v. Landrigan, 550 U.S. 465(2007). “[W]e have held that the Landrigan prejudice
holding does not apply when the defendant ‘did not threaten
to obstruct the presentation of any mitigating evidence.’”
Sanders, 23 F.4th at 981 (quoting Hamilton v. Ayers, 583
F.3d 1100, 1119 (9th Cir. 2009)). Landrigan is not
controlling in this case.
Waidla’s reluctance pales in comparison to the
opposition at issue in Landrigan. There, Landrigan
hamstrung any and all attempts by counsel to present a
mitigation argument, including by interrupting during
counsel’s proffer of evidence to the judge and by asking the
judge to impose the death penalty. Landrigan, 550 U.S. at
470, 476–80. By contrast, Waidla merely voiced concerns
about conducting an investigation in Estonia in
conversations with counsel. He never indicated that he
would obstruct counsel. Additionally, counsel in Landrigan
advised his client strongly against his preferred course of
action and attempted to present mitigation evidence over his
client’s objections. Id. at 479–80. Waidla received
markedly less diligent representation, as counsel simply did
not press the issue enough to reach resolution on it. In other
words, Landrigan does not govern because the major gap in
Waidla’s mitigation case is attributable to counsel’s actions
rather than Waidla’s.
We acknowledge that the mitigation strategy outlined
above is a modest one. Waidla’s social history does not
reveal facts that often support a finding of prejudice like
abject abuse or serious mental incapacity. See, e.g.,
Williams, 529 U.S. at 395–98. We also recognize that good
character evidence sometimes lacks persuasive force in the
face of a “gr[isly] murder.” Bemore v. Chappell, 788 F.3d
WAIDLA V. DAVIS 37
1151, 1172 (9th Cir. 2015). But crucially, we are called on
to determine whether fairminded jurists could conclude that
this mitigation evidence gives rise to a reasonable
probability that at least one juror would have voted
differently. Waidla meets that standard given the jury’s
uncertainty, the extremely minimal mitigation evidence
originally presented, and the missed opportunity to rebut
various aspects of the State’s aggravation argument, which
was itself modest.
C
Waidla argues, as an alternative ground for affirmance,
that he was deprived of due process by the State’s
presentation of false evidence against him. Specifically, the
California Supreme Court found that the State misattributed
the two post-mortem sharp-edged hatchet blows to Waidla
at trial. In re Sakarias, 106 P.3d at 950. Nevertheless, the
court denied relief due to lack of prejudice. Id. We need not
decide whether that denial violated 28 U.S.C. § 2254(d) in
light of our holding that penalty phase relief is warranted on
Waidla’s ineffective assistance of counsel claim.
III. Guilt Phase Claims
The district court denied relief on the two claims of error
at the guilt phase that Waidla raises on cross-appeal. Waidla
first contends that his Fifth Amendment rights were violated
when the State introduced his confession at trial. Waidla
also asserts that he received ineffective assistance of counsel
during the guilt phase. Reviewing under 28 U.S.C. §
2254(d), we agree with the district court’s assessment that
these claims lack merit.
38 WAIDLA V. DAVIS
A
Waidla argues that his confession was improperly
admitted in violation of the Fifth Amendment. We provide
factual background before turning to the claim.
Background. Border Patrol agents apprehended Waidla
in New York near the Canadian border and arrested him on
suspicion of illegal entry into the country. Waidla, 996 P.2d
at 69. During interrogation at a Border Patrol station in
Rouses Point, New York, Waidla invoked his right to
counsel and was then moved to another facility where he was
detained. Id. The next day, a Border Patrol agent
transported Waidla back to Rouses Point and placed him in
a holding cell. Id.During the suppression hearing, Detective Pietrantoni
and Waidla testified differently as to what transpired at
Rouses Point. As the trial court found Pietrantoni more
credible, we recount his version of events.
Officers removed Waidla from the holding cell and took
him into the adjoining administrative area where he saw
Detective Pietrantoni dressed in civilian clothes. Pietrantoni
was in New York to interrogate Waidla and to bring him to
Los Angeles following an extradition hearing. Id. Speaking
first, Waidla asked: “[Y]ou’re the detective from Los
Angeles?” When Pietrantoni confirmed that he was, Waidla
asked either, “What do you want from me?” or “What can I
do for you?” Id. Pietrantoni took Waidla into another room
where Waidla waived his Miranda rights before Pietrantoni
questioned him and eventually obtained his confession. Id.at 69–70.
The trial court admitted Waidla’s confession because
Waidla had initiated the dialogue with Detective Pietrantoni.
WAIDLA V. DAVIS 39
Id. at 70. On direct appeal, the California Supreme Court
upheld the trial court’s factual finding that Waidla had
started the conversation and concluded that, as a matter of
law, Waidla’s question amounted to initiation of
interrogation. Id. at 71.
Discussion. The California Supreme Court did not
unreasonably apply Edwards v. Arizona, 451 U.S. 477(1981), and its progeny in upholding the admission of
Waidla’s confession. Edwards holds that a suspect who has
invoked the right to counsel may not be “subject[ed] to
further interrogation by the authorities until counsel has been
made available to him, unless the accused himself initiates
further communication, exchanges, or conversations with
the police.” Id. at 484–85. Initiating statements are those
that “represent a desire on the part of an accused to open up
a more generalized discussion relating directly or indirectly
to the investigation.” Oregon v. Bradshaw, 462 U.S. 1039,
1045 (1983) (plurality opinion).
Fairminded jurists could conclude that law enforcement
did not recommence interrogation in the sense relevant to the
Edwards analysis. Cases finding Edwards violations
involve police-initiated meetings that a suspect understands
are interrogation attempts. See Edwards, 451 U.S. at 487(police “told Edwards that they wanted to talk to him”);
Minnick v. Mississippi, 498 U.S. 146, 149 (1990) (jailers told
Minnick he would “have to talk” to an officer who arrived to
interview him and “could not refuse”). Unlike the suspects
in those cases, Waidla had little reason to expect that he
would be questioned when he encountered Detective
Pietrantoni. Waidla testified at the suppression hearing and
at trial that he had no idea why he had been brought to
Rouses Point. He maintained that position before the district
40 WAIDLA V. DAVIS
court. 3 Moreover, Pietrantoni was not in uniform at the time,
the encounter did not begin in an interrogation room, and no
other contextual cues suggested to Waidla that interrogation
was forthcoming. Thus, it is reasonable to conclude that
Waidla did not experience his encounter with Pietrantoni as
a coercive attempt at further interrogation.
In light of Waidla’s lack of knowledge of the purpose for
his transport, it is not enough to observe that law
enforcement brought about his encounter with Detective
Pietrantoni. As the California Supreme Court recognized,
no Supreme Court case has found an Edwards violation
based on a police-initiated meeting alone. Waidla, 996 P.2d
at 71. To be sure, snippets from some cases suggest that a
suspect truly initiates only if he requests the meeting in
which interrogation recommences. See, e.g., McNeil v.
Wisconsin, 501 U.S. 171, 177 (1991) (police may not
“approach[] for further interrogation” or “initiate an
encounter” following a suspect’s invocation of rights);
Patterson v. Illinois, 487 U.S. 285, 290 (1988) (“[A] suspect
may not be questioned again unless he initiates the
meeting.”). But we do not interpret those general statements
in a vacuum. Edwards created a prophylactic rule to protect
suspects from the coercive effect of persistent interrogation
attempts. See Maryland v. Shatzer, 559 U.S. 98, 104–05
(2010). Not all police-initiated meetings following an
invocation of rights carry coercive potential. A reasonable
3
Waidla invites us to discount his own testimony as inconsistent with
Detective Pietrantoni’s testimony that Waidla recognized him on sight
as an LAPD detective. But Pietrantoni’s explanation for Waidla’s
behavior, credited by the trial court, was that Waidla may have seen him
before and therefore recognized him. Waidla, 996 P.2d at 69. Thus, the
trial court could have validly relied on Waidla’s testimony that he lacked
awareness of the reason for his transport.
WAIDLA V. DAVIS 41
jurist could conclude that, absent a suspect’s belief that he
will be questioned during an encounter, the coercive effect
of a police-initiated interaction is minimal. Thus, the fact
that law enforcement manufactured Waidla’s contact with
Pietrantoni does not, on its own, render his confession
inadmissible.
We reach the same conclusion when considering the
question, as Waidla urges us to, under Rhode Island v. Innis,
446 U.S. 291 (1980). Innis holds that law enforcement
engages in the “functional equivalent” of interrogation when
it takes action that is “reasonably likely to elicit an
incriminating response.” Id. at 301. The Innis analysis
“focuses primarily upon the perceptions of the suspect,
rather than the intent of the police.” Id. Fairminded jurists
could conclude that because Waidla did not know he was
transported to facilitate further interrogation, simply
encountering Detective Pietrantoni was not reasonably
likely to draw any admissions from him. Further, there is no
evidence to suggest that any involved officer could have
predicted that Waidla would recognize Pietrantoni as a
detective when he was wearing civilian clothes. Waidla’s
response was therefore an “unforeseeable result[]” of
delivering him into Pietrantoni’s presence. Id.Finally, Waidla suggests that his question to Detective
Pietrantoni was vague and possibly hostile, rather than a
clear attempt to initiate further interrogation. But even the
more ambiguous formulation of Waidla’s question—“What
do you want from me?”—was no less ambiguous than the
phrase that initiated further interrogation in Bradshaw:
“Well, what is going to happen to me now?” 462 U.S. at
1045 (plurality opinion). The California Supreme Court
reasonably concluded that Waidla’s question “represent[ed]
a desire . . . to open up a more generalized discussion,” id.,42 WAIDLA V. DAVIS
particularly in light of Pietrantoni’s testimony that before he
began his questioning, Waidla interrupted him several times
with offers to discuss the investigation, Waidla, 996 P.2d at69–71.
B
Waidla also raises a claim of ineffective assistance at the
guilt phase. He contends that counsel rendered ineffective
assistance in four areas: (1) investigating and litigating the
motion to suppress Waidla’s confession; (2) counseling
Waidla to recant his confession and testify to an alibi; (3)
failing to investigate alternative defenses; and (4) failing to
rebut the State’s expert testimony regarding the lifespan of
fingerprints.
To prevail, Waidla must show that counsel’s
performance “fell below an objective standard of
reasonableness,” Strickland, 466 U.S. at 688, and that “there
is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different,” id. at 694. Because 28 U.S.C.
§ 2254(d) applies, we may grant relief only if we can answer
both questions in the affirmative “beyond any possibility for
fairminded disagreement.” Harrington, 562 U.S. at 103.
Here, the California Supreme Court could reasonably have
concluded that counsel met Strickland’s performance
standard as to two of the alleged deficiencies and that the
remaining alleged deficiencies did not prejudice Waidla.
Suppression Motion. Waidla identifies two failures in
counsel’s approach to litigating the motion to suppress his
confession: (1) counsel should have pressed for an earlier
decision on the motion; and (2) counsel should have
investigated more thoroughly. The first argument fails
because it incorrectly presumes that counsel had control over
WAIDLA V. DAVIS 43
the timing of the suppression hearing. The second fails
because it impermissibly relies on facts knowable only in
hindsight.
Counsel adequately and timely litigated the motion to
suppress. He filed moving papers in advance of trial and he
acted reasonably by not pushing for a suppression hearing at
that time because it appeared possible that the State would
ultimately not seek to introduce Waidla’s confession.
Further, the trial court had discretion to hear the motion at a
time of its choosing and it acceded to the State’s request to
defer the issue. Waidla does not point to any feature of state
law that would have allowed counsel to compel the court to
hold a hearing sooner. Thus, counsel reasonably refrained
from making a likely futile request for an earlier hearing.
Based on what he knew at the time, counsel could
reasonably have determined that further investigation into
whether Waidla had initiated interrogation was unnecessary
to litigating the suppression motion. Strickland cautions that
we must not fall prey to the “distorting effects of hindsight”
in assessing counsel’s performance. 466 U.S. at 689. The
prosecutor had given counsel full access to his files. Those
files gave counsel no indication that Detective Pietrantoni
would testify that Waidla had initiated the interrogation. In
fact, the State had concluded preliminarily that Waidla’s
statement was likely obtained in violation of Arizona v.
Roberson, 486 U.S. 675 (1988), a case applying the rule set
out in Edwards. Even the prosecutor represented that
Pietrantoni’s testimony at the suppression hearing came as a
surprise. Thus, counsel had little reason to think that
interviewing the officers involved or conducting other
investigation would inform his strategy in arguing the
suppression motion. That is especially true because Waidla
maintained that he had not initiated the interrogation. See
44 WAIDLA V. DAVIS
Strickland, 466 U.S. at 691 (“[W]hen the facts that support a
certain potential line of defense are generally known to
counsel because of what the defendant has said, the need for
further investigation may be considerably diminished or
eliminated altogether.”).
Waidla’s Testimony. Faced with the trial court’s
decision to admit Waidla’s extremely damaging confession,
counsel made a strategic decision to advise Waidla to recant
his confession. Waidla argues that counsel’s strategic choice
fell short of objectively reasonable standards of
representation. Reviewing under 28 U.S.C. § 2254(d), we
cannot conclude that the California Supreme Court
unreasonably applied Strickland’s performance prong.
Counsel could have made the reasonable professional
judgment that letting the confession stand uncontested
would have proved fatal to Waidla’s defense. Waidla
confessed not only to his presence during the crime, but to
physically striking Viivi with the murder weapon. Failing to
dispute the validity of this confession would have left the
jury with little room to form a reasonable doubt as to
Waidla’s guilt. Thus, it would have been reasonable for
counsel to conclude that presenting Waidla’s testimony “was
the only way to potentially rebut” the State’s overwhelming
evidence of guilt. Allen v. Woodford, 395 F.3d 979, 1000
(9th Cir. 2005).
Failure to Investigate Alternative Defenses. Waidla
argues that counsel rendered ineffective assistance by failing
to investigate any alternative defense strategy. Counsel
admitted that he prepared just one approach—suppressing
Waidla’s confession and casting doubt on the State’s
evidence of Waidla’s involvement—before having to
abandon it upon the court’s denial of the suppression motion.
WAIDLA V. DAVIS 45
Waidla identifies as one viable alternative defense that
Waidla was present at the scene of the crime because he
intended to negotiate Viivi’s debt to him, but that he did not
ultimately participate in Viivi’s murder. Additionally, he
argues that counsel should have investigated a mental state
defense based on diminished capacity because the two
pretrial psychological evaluations found only that Waidla
was generally capable of forming an intent to kill, not that
he in fact formed that intent. These claims fail for lack of
prejudice.
Fairminded jurists could conclude that even if counsel
had offered evidence that Waidla was present at the
Piirisilds’ home but uninvolved in the murder, there was no
reasonable probability the jury would have reached a
different verdict. Waidla argues that he could have offered
testimony showing that his intent in confronting Viivi was to
obtain payment for his household work. But to the extent
Waidla invites an inference from that evidence that he did
not ultimately participate in Viivi’s murder, that inference
holds up no better than Waidla’s alibi defense. Crucially,
Waidla’s confession cast doubt on that theory just as it cast
doubt on Waidla’s alibi. And the claim that he was there but
uninvolved would have been undermined by evidence of
Waidla’s consciousness of guilt. Specifically, Waidla fled
after the crime, reacted strangely when an acquaintance told
him about Viivi’s death, and initially lied to the police about
his presence during the crime. Waidla, 996 P.2d at 57, 69.
Thus, an alternative defense based on Waidla’s non-
involvement faced challenges similar to the defense actually
mounted.
As for a mental state defense, Waidla offered extremely
minimal postconviction evidence of diminished capacity or
severe emotional disturbance. Only one postconviction
46 WAIDLA V. DAVIS
psychologist’s evaluation assessed Waidla as suffering from
dissociative disorder, and even that evaluation did not go so
far as to suggest that Waidla’s dissociative disorder
prevented him from forming the requisite intent in killing
Viivi.
Moreover, the evidence showed that the crime was
planned and deliberate, severely undercutting a possible
mental state defense. Waidla waited until Avo was out of
town to confront Viivi; he took the hatchet from the
Piirisilds’ cabin for the confrontation; he parked some
distance from Viivi’s house, presumably to avoid alerting
her to their presence; and he made some efforts to clean up
the scene of the crime after killing Viivi. Waidla, 996 P.2d
at 56–57. These considered actions tend to show that Waidla
acted with foresight and deliberation throughout the crime.
Thus, fairminded jurists could conclude that a mental state
defense would not have proved persuasive. See Crittenden
v. Ayers, 624 F.3d 943, 960–63 (9th Cir. 2010) (finding no
prejudice when counsel presented alibi defense over mental
state defense because the evidence overwhelmingly
established deliberation and premeditation).
Fingerprint Lifespan. Waidla’s counsel failed to present
expert testimony to rebut erroneous testimony from a State
witness that fingerprints have a “lifespan” of only ten days
to three weeks. Waidla, 996 P.2d at 57. That testimony
undermined the defense argument that Waidla’s fingerprint
on the Piirisilds’ deadbolt could have been left when Waidla
was last in the Piirisilds’ home more than six weeks prior to
the crime. Even assuming counsel performed deficiently by
failing to offer rebuttal expert testimony, the California
Supreme Court could reasonably have concluded that
Waidla was not prejudiced by counsel’s shortcoming.
WAIDLA V. DAVIS 47
The evidence overwhelmingly showed that Waidla was
present at the Piirisilds’ home during the crime even without
the fingerprint evidence in question. Most notably, Waidla
confessed that he had been there. Waidla, 996 P.2d at 58. A
neighbor also identified Waidla as one of two men he had
seen walking to and from the Piirisilds’ home around the
time of the crime. Id. at 56–57. The State presented
evidence of cigarette butts found inside the house that
matched Waidla’s (but not Sakarias’s) blood type, which
was significant because Viivi did not allow smoking inside
the house and therefore an invited guest would not have left
the cigarettes. See id. at 57. Finally, the evidence showed
that Waidla had fled the country after the crime, id. at 57–
58, showing consciousness of guilt. See People v. Bradford,
929 P.2d 544, 575 (Cal. 1997) (explaining relevance of flight
to jury’s determination of guilt).
Moreover, the defense theory that Waidla left a
fingerprint over six weeks prior to the crime strained
credulity to begin with. Witnesses testified that Viivi was a
thorough and frequent cleaner. In line with that testimony,
police found only seven prints in the home while
investigating, suggesting that the home had been cleaned
recently. Yet Waidla argues that a jury would have
concluded that a fingerprint on a high-touch surface, the
door, somehow survived for over a month. Considering the
weakness of this theory and the overwhelming evidence of
Waidla’s presence at the scene of the crime, the California
Supreme Court could have concluded there was no
reasonable probability of the jury reaching a different
outcome had the State’s fingerprint lifespan testimony been
refuted.
Cumulative Error. Waidla raises a claim of cumulative
error alleging that counsel’s various inadequacies at the guilt
48 WAIDLA V. DAVIS
phase combined to prejudice him. In assessing a cumulative
error claim, we do not consider the prejudicial effect of
nonexistent errors. See United States v. Jeremiah, 493 F.3d
1042, 1047 (9th Cir. 2007). Even assuming counsel
performed deficiently in failing to investigate additional
defenses and failing to present rebuttal testimony on the
lifespan of fingerprints, Waidla cannot prevail on his claim
of cumulative error. The fingerprint claim posits that Waidla
was robbed of an opportunity to convince the jury that he
was not present during the crime, while the failure to
investigate claim proceeds on the assumption that Waidla
was present. Thus, counsel’s alleged missteps lack the
“symmetry” of errors that “amplify each other in relation to
a key contested issue in the case” and result in cumulative
prejudice. Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir.
2011).
* * *
We affirm the district court’s grant of habeas relief on
Waidla’s claim of ineffective assistance of counsel at the
penalty phase. We also affirm the district court’s denial of
Waidla’s remaining claims for relief.
AFFIRMED.
WAIDLA V. DAVIS 49
MILLER, Circuit Judge, concurring in part and dissenting in
part:
Born in 1967 in Soviet-occupied Estonia, arrested as a
dissident and beaten by the KGB, conscripted into the Soviet
Army and violently abused by Russian soldiers, Tauno
Waidla managed to escape from behind the Iron Curtain and
find freedom in the West. He came to the United States,
where he was welcomed by Viivi and Avo Piirisild, an
Estonian émigré couple who gave him food, clothing, and a
place to live. But Waidla was not satisfied with the Piirisilds’
generosity. He became convinced that they also owed him a
car. When they refused to give it to him, he broke into their
house and murdered Viivi by splitting open her head with an
axe.
Today, the court correctly rejects Waidla’s challenges to
his murder conviction, so I join Part III of its opinion. But
unlike the court, I would also reject Waidla’s challenge to
his death sentence. The California Supreme Court
considered Waidla’s claim of ineffective assistance of
counsel and rejected it on the merits. That decision requires
our deference, and I would reverse the judgment below to
the extent that it granted habeas relief. (Waidla also asserts
that he was deprived of due process in the penalty phase of
his trial; I would reject that claim for the reasons given by
the California Supreme Court. In re Sakarias, 106 P.3d 931,
950 (Cal. 2005).)
The Sixth Amendment guarantees criminal defendants
“the Assistance of Counsel.” U.S. Const. amend. VI. In
Strickland v. Washington, the Supreme Court held that to
establish constitutionally ineffective assistance of counsel, a
defendant must demonstrate that (1) his representation was
deficient, or “fell below an objective standard of
50 WAIDLA V. DAVIS
reasonableness,” and (2) the deficiencies caused him
prejudice, which requires “a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different.” 466 U.S. 668, 688,
694 (1984). “Judicial scrutiny of counsel’s performance
must be highly deferential,” and we “must indulge a strong
presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Id. at 689.
That deference is heightened where, as here, a federal
court reviews a state-court conviction in habeas. The
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, provides
that when a claim has been “adjudicated on the merits in
State court proceedings,” a federal court may grant habeas
relief only if the state court’s decision “was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1). Obtaining relief
requires a petitioner to “show far more than that the state
court’s decision was ‘merely wrong’ or ‘even clear error.’”
Shinn v. Kayer, 141 S. Ct. 517, 523 (2020) (per curiam)
(quoting Virginia v. LeBlanc, 582 U.S. 91, 94 (2017) (per
curiam)). Instead, it requires the petitioner to demonstrate
“that the state court’s decision [was] so obviously wrong that
its error lies ‘beyond any possibility for fairminded
disagreement.’” Id. (quoting Harrington v. Richter, 562 U.S.
86, 103 (2011)); see Gibbs v. Covello, 996 F.3d 596, 603
(9th Cir. 2021).
When we combine the deference that Strickland and
AEDPA both require, our review becomes “doubly
deferential.” Knowles v. Mirzayance, 556 U.S. 111, 123
(2009). “Federal habeas courts must guard against the
danger of equating unreasonableness under Strickland with
WAIDLA V. DAVIS 51
unreasonableness under § 2254(d).” Richter, 562 U.S. at
105. To evaluate deficiency through the lens of AEDPA, we
ask “whether there is any reasonable argument that counsel
satisfied Strickland’s deferential standard.” Id. And even if
we recognize a deficiency in counsel’s performance, we
cannot say that prejudice resulted unless the state court’s
contrary view would be erroneous “beyond any possibility
for fairminded disagreement.” Id. at 103; see Premo v.
Moore, 562 U.S. 115, 130 (2011).
Waidla argues that he was denied effective
representation because trial counsel did not investigate or
present three types of mitigating evidence, relating to (1) his
early life, (2) his experiences in the Soviet Army, and (3) his
good behavior in jail. Waidla has not established either
deficient performance or prejudice with respect to any of his
claims. He certainly has not shown that it was unreasonable
for the California Supreme Court to reject them.
First, Waidla argues that counsel was ineffective
because he did not obtain evidence about Waidla’s
childhood in Estonia that could have humanized him to the
jury. There was a good reason why counsel did not obtain
such evidence: When counsel tried to investigate Waidla’s
family background, Waidla told him not to do so. As counsel
later explained, Waidla “expressed considerable reluctance
in having me contact his family or calling them as witnesses”
because “he was concerned about possible reprisals against
his family by Soviet government or military authorities if
they were to attempt to come to the United States and testify,
because of his desertion from the Soviet army and escape
from East Germany.” Waidla himself had been the victim of
Soviet reprisals. At trial, Waidla testified that when he was
a student, the KGB had twice arrested him for protesting the
regime, on one occasion beating him so badly that they broke
52 WAIDLA V. DAVIS
his arm. Counsel repeatedly tested Waidla’s reluctance and
suggested alternatives such as contacting his childhood
teachers or other community members, but Waidla
expressed the same concerns about reprisals against them.
Waidla’s resistance was steadfast despite multiple
conversations and proposals.
Counsel’s ultimate decision to accede to Waidla’s
wishes was far from unreasonable. To the contrary, it was
consistent with professional standards, which recognized
that a lawyer “should defer to the client regarding . . .
concern for third persons who might be adversely affected”
by litigation tactics. Model Rules of Pro. Conduct r. 1.2 cmt.
(Am. Bar Ass’n 1989). “Competence does not require an
attorney to browbeat” the client into producing mitigating
evidence, “especially when the facts suggest that no amount
of persuasion would have succeeded.” Mirzayance, 556 U.S.
at 125; cf. Schriro v. Landrigan, 550 U.S. 465, 477 (2007).
Waidla now says, however, that “as Soviet control over
. . . Estonia was diminishing in the late 1980s, the basis for
Waidla’s concern about possible reprisal was also eroding.”
The Supreme Court has cautioned against the “distorting
effects of hindsight” in evaluating counsel’s performance.
Strickland, 466 U.S. at 689; see also Richter, 562 U.S. at
107; Bell v. Cone, 535 U.S. 685, 702 (2002). While the
Court’s cases have focused on litigation hindsight coming
from knowledge of how the trial turned out (“examining
counsel’s defense after it has proved unsuccessful,”
Strickland, 466 U.S. at 689), Waidla’s argument relies on a
different but equally fallacious kind of hindsight:
geopolitical hindsight coming from knowledge of how the
Cold War ended.
WAIDLA V. DAVIS 53
Waidla’s penalty-phase trial took place in January 1991.
Evaluating his counsel’s performance at a remove of more
than three decades, it is easy to forget that the world was very
different then. Estonia remained under Soviet occupation,
and it was far from clear that the occupation would come to
a peaceful end. As the Baltic states attempted to reassert their
independence, the Soviet Union strongly resisted their
efforts. Less than two weeks after the closing arguments in
Waidla’s trial, the Soviets sent tanks into Vilnius in response
to the Lithuanian declaration of independence. Bill Keller,
Soviet Loyalists in Charge After Attack in Lithuania; 13
Dead; Curfew Is Imposed, N.Y. Times, Jan. 14, 1991, at A1.
Days later, a similarly violent military intervention took
place in Latvia. Serge Schmemann, Soviet Crackdown:
Latvia; Soviet Commandos Stage Latvia Raid; At Least 5
Killed, N.Y. Times, Jan. 21, 1991, at A1. Against this
backdrop, Waidla’s observation that it would have been
possible for his counsel to communicate with people in
Estonia is entirely beside the point. The concern he
expressed was not that communicating with his friends and
relatives in Estonia would pose logistical hurdles; it was that
doing so would put them at grave risk of Soviet reprisals.
The brutality of the Soviet Union in its waning days vividly
demonstrates the basis for that concern.
Not to worry, Waidla says, because “arrangements could
have been easily made to meet in Finland” with potential
Estonian witnesses to avoid Soviet detection. To be fair,
there was recent precedent for such an operation: A few
years earlier, Oleg Gordievsky, a high-level KGB officer and
British double agent, had been exfiltrated from the Soviet
Union to Finland in the trunk of a British diplomatic car. But
if the Sixth Amendment does not guarantee a defendant the
advocacy of Clarence Darrow, see Yarborough v. Gentry,
54 WAIDLA V. DAVIS
540 U.S. 1, 10 (2003) (per curiam), surely it does not
guarantee him the tradecraft of MI6.
At the time of Waidla’s trial, a reasonably competent
attorney—one not assisted by clandestine operatives of Her
Majesty’s Government—would have struggled to determine
how to obtain evidence from Soviet-occupied Estonia to
assist a defector who had opposed the Soviet regime, while
somehow not endangering those who remained under its
rule. And the information that counsel had already collected
about Waidla’s childhood gave no indication that additional
evidence would pay large dividends for his client. In addition
to interviewing Waidla, who had little to say about his
upbringing, counsel requested evaluations from two
psychiatrists. Those evaluations were likewise
unremarkable. They reported that Waidla’s parents had
divorced when he was young, that he had little contact with
them and was instead raised by a maternal uncle and
grandmother, that he had feared going out alone in public as
a teenager, and that he was an average student who attended
regular classes and had no behavior problems. There was no
hint of childhood trauma, e.g., Wiggins v. Smith, 539 U.S.
510, 525 (2003), or mental illness, e.g., Porter v. McCollum,
558 U.S. 30, 40 (2009) (per curiam). This was “not a case in
which the defendant’s attorneys failed to act while
potentially powerful mitigating evidence stared them in the
face.” Bobby v. Van Hook, 558 U.S. 4, 11 (2009) (per
curiam).
“[T]he duty to investigate does not force defense lawyers
to scour the globe on the off chance something will turn up.”
Rompilla v. Beard, 545 U.S. 374, 383 (2005). “Questioning
a few more family members and searching for old records
can promise less than looking for a needle in a haystack,”
and the prospects darken considerably when the haystack is
WAIDLA V. DAVIS 55
under Soviet occupation. Id. at 389. At a minimum,
fairminded jurists could disagree about whether it was
reasonable for counsel to respect Waidla’s wishes and
decline to pursue a line of inquiry that could jeopardize the
safety of people he cared about in a Soviet-occupied country
without any clear benefit for his defense.
Second, Waidla argues that counsel was ineffective
because he did not present sufficient evidence of the
hardship that he endured as a conscript in the Soviet Army.
But the jury already had powerful evidence of the abuse that
Waidla suffered. After he came to the United States, Waidla
wrote a newspaper article—which Viivi helped him translate
into English—describing in detail his experiences in the
Soviet Army. During the guilt phase of Waidla’s trial, the
parties introduced the article into evidence, and Waidla
testified about it at length.
In the article, Escaping Through the Fog, Waidla wrote
that after being conscripted, he endured nights in bitterly
cold weather in flimsy, overcrowded tents, “[b]ut we are not
humans anymore—we are now Russian soldiers.” He was
transported to East Germany in a cattle car. During marches,
“[w]ho walks a little slower gets a boot on his backside.”
After being forced to undress outside in the freezing cold for
an apparent medical exam, he developed pneumonia. At the
hospital, “there are not enough beds and there are too many
sick people,” and the staff forced him to wash the floors even
though he had “never felt worse in [his] life.” Waidla
suffered abuse at the hands of Russian soldiers who were
hostile to Estonians, and his despair was constant: “All
wishes to exist disappear”; “No, two years of this dog[’]s life
I can not bear”; “I have to get out of this hell. That kind of
life is not worth living.” Eventually, he and a fellow Estonian
conscript escaped to West Germany by leaving their base,
56 WAIDLA V. DAVIS
stealing a car, driving to the inner German border, and
climbing the fence.
Waidla’s account in Escaping Through the Fog was
bolstered by other evidence introduced at trial. Avo testified
that he understood the Soviet Army to have mistreated
conscripts like Waidla from the Baltic states. He also said
that when Waidla arrived at the Piirisilds’ home soon after
his escape, he was “haggard” and “perhaps a little
undernourished.”
Given the force of that evidence, counsel reasonably
decided not to seek additional evidence about Waidla’s
mistreatment in the army. As in Strickland, counsel’s
decision not to seek more evidence “than was already in
hand” fell “well within the range of professionally
reasonable judgments.” 466 U.S. at 699.
Waidla objects that counsel did not do enough to explain
to the jury the mitigating force of his experiences. During
closing argument, however, counsel expressly argued that
the hardship Waidla endured in the Soviet Army was a
mitigating factor weighing against the death penalty.
Counsel elicited the key points about Waidla’s suffering in
the Soviet Army and the bravery of his escape. He
emphasized that Waidla had lived under “the dictatorial rule
of the Soviet Union” and that “after three weeks in a Russian
army hospital . . . was so consumed by a desire for
freedom . . . that he risked everything . . . to run across East
Germany to the West, to freedom.” See Gentry, 540 U.S. at6–7 (holding that counsel was not ineffective when his
closing argument made “several key points,” even if he
omitted others that “would unquestionably have supported
the defense”). Reviewing the transcript of closing argument
30 years later, one can come up with ways in which counsel
WAIDLA V. DAVIS 57
might have made even more compelling use of Waidla’s
vivid narrative, but “Strickland does not guarantee perfect
representation.” Richter, 562 U.S. at 110. Whatever
counsel’s shortcomings may have been, his performance fell
well within “the broad range of legitimate defense strategy.”
Gentry, 540 U.S. at 6.
Third, Waidla argues that counsel was ineffective
because he did not present evidence of Waidla’s good
behavior in jail before his trial. The Supreme Court has
recognized that a capital defendant’s good behavior in jail is
“relevant evidence in mitigation of punishment” because the
jury could infer that the defendant’s good behavior would
continue if he were sentenced to life in prison. Skipper v.
South Carolina, 476 U.S. 1, 4 (1986). Thus, counsel could
have used such evidence as part of his case for mitigation.
But “[w]hen counsel focuses on some issues to the exclusion
of others, there is a strong presumption that he did so for
tactical reasons rather than through sheer neglect.” Gentry,
540 U.S. at 8. Counsel conducted sufficient investigation to
be aware that “there were no disciplinary proceedings
against Mr. Waidla” in jail. Counsel could reasonably have
decided that even a perfect jail record would be only weakly
mitigating and that it was therefore a better strategy to focus
on other issues.
Even if counsel’s performance was deficient in this
respect—indeed, even if it was deficient with respect to the
other two categories of mitigating evidence—Waidla cannot
establish prejudice. When assessing prejudice, “we reweigh
the evidence in aggravation against the totality of available
mitigating evidence.” Wiggins, 539 U.S. at 534. The
aggravating evidence was horrendous. See Mickey v. Ayers,
606 F.3d 1223, 1245 (9th Cir. 2010) (noting that “the facts
of the crime play an important role in the prejudice inquiry”).
58 WAIDLA V. DAVIS
Waidla bludgeoned Viivi with the blunt end of an axe with
such force that he crushed her skull, fractured several bones,
and knocked out her teeth. He then broke open her skull with
the blade of the axe, cutting a flap of skull and scalp from
the top of her head. The jury saw gruesome photos of Viivi’s
wounds.
Was there provocation for this brutal attack? Not at all.
Viivi had invited Waidla to live in her home when he had
nowhere else to go, and she allowed him to stay for more
than a year. She tried to find him work and offered to pay for
his college education. She helped Waidla translate the article
that he would use at his trial to argue that his life should be
spared. And she brought him on trips to her family’s cabin,
where Waidla later stole the axe that he would use to kill her.
Did Waidla display remorse after the murder? Far from
it. He wrote a note to his friend and accomplice celebrating
his escape—“Right now I am drinking Bavarian beer with
the proper strength in one of the better class bars in
Montreal”—and promising to go down “with a weapon in
hand” should he be apprehended: “If you hear that I have
been taken alive . . . (almost impossible) . . . then you should
know that I did my best.” Despite having given a full
confession shortly after being arrested, he then testified at
trial and denied any involvement in the murder, offering an
implausible story that the jury rejected.
Considered alongside the facts of the offense, Waidla’s
proffered mitigating evidence is feeble. Start with the
evidence of his behavior in jail. Yes, Waidla had shown an
apparent commitment to work and study. But the jury could
easily have discounted that showing, given that he had
repeatedly rebuffed Viivi’s earlier attempts to help him get a
job and an education. See Skipper, 476 U.S. at 14 (Powell,
WAIDLA V. DAVIS 59
J., concurring) (“One arrested for a capital crime, and
particularly a convicted defendant awaiting sentencing, has
every incentive to behave flawlessly in prison if good
behavior might cause the sentencing authority to spare his
life.”). Even if the jury believed his reforms to be genuine, it
might have viewed his willingness to sweep the halls and
distribute toilet paper as paltry recompense for the depravity
of Viivi’s murder. At trial, counsel described Waidla’s
construction projects for the Piirisilds as evidence of his
work ethic and the contributions he could make to society;
the jury was apparently unpersuaded. Similar evidence from
his time in jail would have been unlikely to produce a
different result.
The same is true of evidence of the oppressiveness of the
Soviet Union. The guilt-phase testimony had already
described the hardship Waidla experienced growing up in
Soviet-occupied Estonia, his interrogations and beatings by
the KGB, and his suffering in the Soviet Army. As the trial
court observed, there was a “tremendous amount of evidence
that was presented to the jury during the first phase that goes
both towards sympathy and pity” for Waidla. Waidla now
emphasizes an expert report on the Soviet Army, but for the
most part it just retells Escaping Through the Fog in the third
person. “Additional evidence on these points would have
offered an insignificant benefit, if any at all.” Wong v.
Belmontes, 558 U.S. 15, 23 (2009) (per curiam).
That leaves the suggestion that counsel should have done
more to “humanize” Waidla. The postconviction efforts to
do so are unimpressive, and, had they been employed at trial,
could easily have been counterproductive. As a youth,
Waidla apparently displayed skill in marksmanship and
photography. That is of minimal mitigating value because it
says essentially nothing about him as a person. And given
60 WAIDLA V. DAVIS
that Waidla possessed a gun and had threatened a shootout
with law enforcement, emphasizing his skill in
marksmanship had an obvious potential to backfire.
What of the psychological reports that Waidla had a
“characterological aversion to confrontation and violence”?
That assessment does say something about Waidla as a
person, but what it says is highly implausible—someone
genuinely averse to confrontation and violence would
probably not have hacked a woman to death with an axe.
Introducing the reports would have opened the door to a
cross-examination revealing that they were based on
Waidla’s false claims that Viivi’s killing was unplanned and
unintended. See Cullen v. Pinholster, 563 U.S. 170, 201
(2011) (explaining that a psychiatric report had
“questionable mitigating value” because it “would have
opened the door to rebuttal”). The jury would not have been
swayed by opinions premised on a view of the crime it had
unanimously rejected. More likely, the reports would simply
have confirmed the jury’s conclusion that Waidla was a liar.
The evidence about Waidla’s family is likewise as much
aggravating as mitigating. Indeed, this case illustrates the
Supreme Court’s caution that the effort to “‘humaniz[e]’ the
defendant as the be-all and end-all of mitigation disregards
the possibility that this may be the wrong tactic.” Pinholster,
563 U.S. at 197 (quoting Pinholster v. Ayers, 590 F.3d 651,
692 (9th Cir. 2009) (Kozinski, C.J., dissenting), rev’d, 563
U.S. 170 (2011)). Waidla’s close relationships with his
relatives suggest some capacity for human connection, but
discussion of those bonds would have undermined one of the
primary themes in counsel’s closing argument: that Waidla
was “essentially alone in this world, and maybe because of
that is to be a bit pitied rather than despised.” Had the jury
learned that Waidla had not lived a life of isolation and had
WAIDLA V. DAVIS 61
nonetheless chosen to commit murder, it would have had less
reason to pity Waidla and correspondingly more reason to
despise him.
The length of the jury deliberations provides little reason
to believe that the postconviction evidence would have made
a difference. The new evidence “would barely have altered
the sentencing profile” for the jury, and some pieces might
have made it worse. Strickland, 466 U.S. at 700. In the end,
the jury still would have been presented with a person who,
after growing up in a totalitarian regime, had the
extraordinary good fortune to escape it and find freedom in
the United States—and then squandered that by becoming
an axe murderer. Nothing in Waidla’s habeas petition has
made any sense of that incomprehensible offense. It would
be far from unreasonable to conclude that, with or without
the new evidence, the jury’s verdict would remain the same.
* * *
The Supreme Court has held that the AEDPA standard is
“difficult to meet” because the statute “reflects the view that
habeas corpus is a ‘guard against extreme malfunctions in
the state criminal justice systems,’ not a substitute for
ordinary error correction through appeal.” Richter, 562 U.S.
at 102–03 (quoting Jackson v. Virginia, 443 U.S. 307, 332
n.5 (1979) (Stevens, J., concurring in the judgment)).
Reviewing Waidla’s trial more than 30 years after it took
place, the court today decides that counsel could have done
a better job, even though doing a better job would have
involved presenting what even the court describes as a
“modest” case for mitigation. Whatever the merits of that
view, the California Supreme Court’s contrary conclusion
was not “so obviously wrong that its error lies ‘beyond any
62 WAIDLA V. DAVIS
possibility for fairminded disagreement.’” Shinn, 141 S. Ct.
at 523 (quoting Richter, 562 U.S. at 103).
We have repeatedly been reversed for failing to defer to
reasonable determinations of state courts under AEDPA. It
appears that we have yet to learn the lesson of those cases.