Heishman v. Ayers

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HARVEY LEE HEISHMAN, III, 

Petitioner-Appellant, No. 07-99016

v.

 D.C. No.

CV-90-01815-VRW

ROBERT L. AYERS, for California

State Prison at San Quentin, OPINION

Respondent-Appellee.



Appeal from the United States District Court

for the Northern District of California

Vaughn R. Walker, Chief District Judge, Presiding

Argued and Submitted

June 2, 2010—Pasadena, California

Filed September 8, 2010

Before: Barry G. Silverman, Raymond C. Fisher and

Milan D. Smith, Jr., Circuit Judges.

Per Curiam Opinion;

Concurrence by Judge Silverman

13627

HEISHMAN v. AYERS 13631

COUNSEL

Geoffrey Rotwein, San Francisco, California, and Michael

Satris (argued), Bolinas, California, for the petitioner-

appellant.

Edmund G. Brown, Jr., Attorney General of California, Dane

Gillette, Chief Assistant Attorney General, Gerald A. Engler,

Senior Assistant Attorney General, Alice B. Lustre, Deputy

Attorney General, and Glenn R. Pruden (argued), Supervising

Deputy Attorney General, San Francisco, California, for the

respondent-appellee.

OPINION

PER CURIAM:

Harvey Lee Heishman, III, a California prisoner under sen-

tence of death, appeals from denial of a petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. Heishman

asserts claims of prosecutorial misconduct during the guilt

phase of his trial and ineffective assistance of counsel during

the penalty phase. We affirm.

I. Background and Standard of Review

Heishman met Nancy Lugassy in July 1979. Lugassy

invited Heishman to her home the evening they met, and that

13632 HEISHMAN v. AYERS

night Lugassy ran crying to her neighbor and told him that she

had been raped. Lugassy identified Heishman from a photo

array, and police arrested him and charged him with rape.

Heishman posted bail and then appeared for arraignment on

October 24, 1979. The municipal court scheduled a prelimi-

nary examination for November 20, 1979.

On November 1, 1979, Nancy Lugassy was shot dead in

her front yard, and Heishman was eventually arrested and

charged with the murder. At trial, the prosecution presented

the testimony of Lugassy’s neighbors, who had heard gun-

shots or identified the car that had driven away after the

shooting, but the only direct evidence of Heishman’s involve-

ment in the killing came from two witnesses: Cheryl Miller

and Nancy Gentry. Both testified that they had been involved

in Heishman’s plan to kill Lugassy, and both testified only

after receiving complete immunity. Gentry was the only wit-

ness who placed Heishman at the scene on the night of the

murder, and during more than a day of cross-examination

Heishman’s attorneys, assistant public defenders William A.

Keep and John Costain, conducted a thorough impeachment.

Nevertheless, at the conclusion of the guilt phase, the jury

found Heishman guilty of first degree murder with special cir-

cumstances.

During the penalty phase of Heishman’s trial, the aggrava-

tion evidence focused on Lugassy’s murder and Heishman’s

history of sexual violence. See People v. Heishman, 753 P.2d

629, 666-67 (Cal. 1988). Five women testified that they had

been sexually assaulted by Heishman, and the prosecution

submitted evidence of convictions for sexual assaults of two

of the five witnesses and three additional victims. Id. at 650.

Overall, the prosecution’s evidence showed that from Decem-

ber 1969 until July 1978, Heishman was either on probation,

on parole or in prison for various sexual assaults. Id. at 666.

Heishman’s attorneys also presented a case in mitigation,

which “pertained to [Heishman’s] general character and back-

HEISHMAN v. AYERS 13633

ground.” Id. at 650. A chaplain, corrections officers and for-

mer employers testified as to Heishman’s good character and

work habits, and two ex-girlfriends and his ex-wife testified

as to their positive and nonviolent relationships with him. Id.

at 650-51. His mother testified that he was an Rh-factor baby,

requiring blood transfusions, and she and other family mem-

bers described Heishman’s discovery of the body of his

grandmother after she had committed suicide and his resultant

withdrawal. Id. at 651. Heishman’s sister testified that she had

participated in therapy sessions with her brother while he was

in prison and that, when Heishman had talked about his prior

rape cases, he had begun crying and expressed remorse for his

earlier acts. Id. Heishman’s counsel did not present any psy-

chiatric evidence. At the conclusion of the penalty phase, the

jury sentenced Heishman to death.

Heishman pursued direct appeals culminating in a lengthy

decision by the California Supreme Court affirming the con-

viction. See id. at 712. He filed his federal habeas petition on

June 26, 1990. After returning to state court multiple times to

exhaust state remedies, Heishman filed the operative fourth

amended federal petition in October 1993. The district court

held multiple evidentiary hearings and issued over 200 pages

of decisions before denying the last of Heishman’s claims on

June 12, 2007, and entering judgment. After Heishman sub-

mitted a notice of appeal, the district court issued a certificate

of appealability for the claims that we now address.

“We review de novo a district court’s decision to deny a

petition for habeas corpus,” Bailey v. Hill, 599 F.3d 976, 978

(9th Cir. 2010), although “[t]he district court’s factual find-

ings are reviewed for clear error,” Stanley v. Schriro, 598 F.3d

612, 617 (9th Cir. 2010). The decision to grant or deny an

indigent habeas petitioner’s request for expert services “will

be overturned on appeal only for an abuse of discretion.”

Stubbs v. Gomez, 189 F.3d 1099, 1107 (9th Cir. 1999). We

similarly review “the decision to admit or deny expert testi-

mony for abuse of discretion.” United States v. Reed, 575

13634 HEISHMAN v. AYERS

F.3d 900, 918 (9th Cir. 2009). The Anti-Terrorism and Effec-

tive Death Penalty Act (AEDPA) does not apply to Heish-

man’s petition for habeas corpus, which was filed nearly six

years before AEDPA became law on April 24, 1996. See

Lindh v. Murphy, 521 U.S. 320, 322, 327 (1997).

II. Guilt Phase Error

[1] Heishman first argues that the district court erred by

finding that false testimony the prosecution failed to correct

and Brady material the prosecution failed to disclose was

immaterial. We agree with the district court and hold that

there is no reasonable likelihood that the false testimony

could have changed the jury’s verdict or that the cumulative

impact of the false testimony and undisclosed Brady material

would have changed the jury’s verdict. See Jackson v. Brown,

513 F.3d 1057, 1075-77 (9th Cir. 2008).

The district court assumed without deciding that the prose-

cution failed to correct false testimony under the obligations

outlined in Napue v. Illinois, 360 U.S. 264 (1959), and either

found or assumed failure to produce categories of favorable

discovery required by Brady v. Maryland, 373 U.S. 83 (1963),

and Giglio v. United States, 405 U.S. 150 (1972). Specifi-

cally, the district court found that the prosecution’s key wit-

ness — Nancy Gentry — testified falsely concerning both the

scope of her prior criminal activity and remuneration for her

testimony. The district court assumed without finding “that

the prosecutor knowingly allowed Gentry to testify falsely

that her criminal activity was limited to that discussed at trial

and that she was receiving no consideration for her testimony

other than immunity.” The district court also either found or

assumed that the prosecution failed to turn over material con-

cerning Gentry’s sexual relationships with law enforcement

officers, police reports and a misdemeanor warrant concern-

ing bad checks, a police report of a book theft and records of

funds provided to cover costs incurred in connection with tes-

tifying.

HEISHMAN v. AYERS 13635

[2] Even adopting the district court’s assumption that the

prosecution was aware that Gentry’s testimony was false,

there is no reasonable likelihood that the false testimony

could have changed the jury’s verdict or that the cumulative

impact of the false testimony and undisclosed Brady material

would have changed the jury’s verdict. See Jackson, 513 F.3d

at 1075-77. Corrections of the false statements and the sup-

pressed Brady material were similar to and cumulative of the

extremely thorough impeachment during Gentry’s cross-

examination, including proof that Gentry was an incorrigible

liar and had lied numerous times during the proceedings,

including while under oath. See United States v. Lopez, 577

F.3d 1053, 1059 (9th Cir. 2009) (distinguishing between

favorable evidence that must be produced under Brady and

material evidence whose suppression requires a court to set

aside the challenged conviction or sentence). Specifically,

correcting testimony or disclosing information related to Gen-

try’s criminal activity would have been redundant with the

history of passing bad checks, petty theft and theft of rental

cars exposed during Gentry’s testimony. Payment for trans-

portation, meals and lodging to facilitate testimony is petty in

comparison to Gentry’s receipt of immunity. Cf. Hayes v.

Brown, 399 F.3d 972, 986-87 (9th Cir. 2005) (en banc) (hold-

ing that Napue error concerning a “critical deal” is material).

Nor is it reasonably likely that cumulative consideration of

Brady and Napue error would have swayed the jury in light

of impeachment evidence concerning perjury, prior bad acts

and Gentry’s involvement in the killing. A witness may be

“so thoroughly impeached” that even evidence of perjury at

trial is “merely cumulative.” United States v. Polizzi, 801 F.2d

1543, 1551 (9th Cir. 1986).

III. Penalty Phase Ineffective Assistance of Counsel

Heishman also contends that his trial counsel rendered inef-

fective assistance of counsel at the penalty phase of the trial

and failed to present an adequate case in mitigation. He

alleges that counsel were deficient in two major respects.

13636 HEISHMAN v. AYERS

First, he maintains that counsel failed to conduct a timely and

thorough investigation of his background and family relation-

ships. Second, he contends that counsel failed to investigate

his mental condition adequately. In particular, Heishman

asserts that counsel provided ineffective representation by

failing to follow a recommendation by Dr. Hugh Winig that

Heishman be evaluated by a psychologist. According to

Heishman, such investigation would have revealed past psy-

chological and physical trauma, namely alleged sexual abuse

by his grandfather, Jack Schatt. He also maintains that a psy-

chologist was likely to have diagnosed him with post-

traumatic stress disorder (PTSD) stemming from the abuse.

Heishman argues this information might have moved a juror

to vote for life without parole instead of a death sentence.

We review this claim under Strickland v. Washington, 466

U.S. 668 (1984). Heishman must establish that his counsel’s

performance was deficient and that it prejudiced the outcome

of his trial. Id. at 687-89, 694. To establish deficiency, Heish-

man “must show that counsel’s representation fell below an

objective standard of reasonableness.” Id. at 688. To establish

prejudice, he “must show 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. “The legal

question of whether a defendant received ineffective assis-

tance of counsel is reviewed de novo, while any factual find-

ings of the district court are reviewed for clear error.”

Stankewitz v. Woodford, 365 F.3d 706, 714 (9th Cir. 2004).

A. Unreasonable Delay in Investigation

[3] Heishman first argues that trial counsel failed to begin

the penalty phase mitigation investigation early enough. “The

failure to timely prepare a penalty-phase mitigation case is . . .

error.” Allen v. Woodford, 395 F.3d 979, 1001 (9th Cir. 2005).

Thus, “preparation for the sentencing phase of a capital case

should begin early.” Id. In Allen, we held that counsel’s per-

formance fell below professional standards when counsel “did

HEISHMAN v. AYERS 13637

not specifically prepare for the sentencing phase until after the

guilt phase had concluded,” leaving “counsel one week in

which to prepare the witnesses and evidence necessary to per-

suade the jury to spare [the defendant’s] life.” Id. at 1002; see

also Williams v. Taylor, 529 U.S. 362, 395 (2000) (“The

record establishes that counsel did not begin to prepare for

[the penalty] phase of the proceeding until a week before the

trial.”).

Here, trial counsel opened the penalty phase investigation

in August 1980, two months before trial, when they asked

Heishman to prepare a list of potential witnesses. In Septem-

ber, counsel engaged Dr. Winig as their mental health consul-

tant, directed their investigator to interview persons

concerning Heishman’s background for the penalty phase and

instructed the investigator to obtain Heishman’s Atascadero

State Hospital, probation and prison records.

[4] We find no constitutional error under 1980 professional

standards in beginning the investigation two months before

trial or in interviewing witnesses and retaining Dr. Winig only

a month before trial. Although these efforts could have been

initiated earlier, Heishman has not shown that counsel’s time-

table was per se constitutionally deficient under professional

norms existing in 1980.

[5] Trial counsel’s failure to seek Heishman’s state mental

hospital, probation and prison records before September 1980

presents a closer question of deficient performance. Because

these records were not requested until September, counsel did

not receive them until October — when trial was already

beginning and perhaps too late to be useful for establishing

investigative leads, identifying witnesses or informing Dr.

Winig’s psychological evaluation. See Allen, 395 F.3d at

1001. We need not determine whether this delay constituted

deficient performance, however, because any error was not

prejudicial. See Strickland, 466 U.S. at 697 (“If it is easier to

dispose of an ineffectiveness claim on the ground of lack of

13638 HEISHMAN v. AYERS

sufficient prejudice, which we expect will often be so, that

course should be followed.”). The primary advantage of

obtaining these records sooner would have been to provide

them to Dr. Winig. Dr. Winig, however, recommended further

psychological evaluation of Heishman even without review-

ing the records. Absent prejudice, the delay does not amount

to ineffective assistance of counsel.1

B. Failure to Investigate Heishman’s Family and Social

History

[6] Heishman contends that trial counsel failed to conduct

a reasonable investigation into his family and social history.

Professional standards in 1980 required counsel to investigate

a capital defendant’s background, family relationships and

mental condition as potential sources of mitigation evidence,

in order to present “an individualized assessment of the

appropriateness of the death penalty.” Ainsworth v. Woodford,

268 F.3d 868, 876-77 (9th Cir. 2001); see also Smith v. Stew-

art, 189 F.3d 1004, 1009-14 (9th Cir. 1999); Evans v. Lewis,

855 F.2d 631, 636-37 (9th Cir. 1988); 1 ABA Standards for

Criminal Justice 4-4.1 (2d ed. 1980). A superficial investiga-

tion yielding “only rudimentary knowledge of [a defendant’s]

history from a narrow set of sources” is constitutionally inad-

equate. Wiggins v. Smith, 539 U.S. 510, 524 (2003).

Here, trial counsel’s primary approach to the penalty phase

1

For similar reasons, we reject Heishman’s argument that trial counsel

provided ineffective assistance of counsel by failing to provide these

records to Dr. Winig after counsel obtained them. We agree with Heish-

man and with the district court that failure to provide these records to Dr.

Winig constituted deficient performance. See Stanley v. Schriro, 598 F.3d

612, 624 (9th Cir. 2010) (“[T]rial counsel has an affirmative duty to pro-

vide mental health experts with all information relevant to the formulation

of their conclusions.”); Wallace v. Stewart, 184 F.3d 1112, 1117 (9th Cir.

1999). Like the district court, however, we conclude that the error was not

prejudicial given that Dr. Winig recommended further evaluation even

without seeing the records.

HEISHMAN v. AYERS 13639

investigation was to ask Heishman to provide a list of schools,

references, work experience and girlfriends and then to direct

their investigator to use these witnesses to develop informa-

tion “to make [Heishman] seem human to the jury.” Trial

counsel did not, however, compile a comprehensive social

history for Heishman and performed only limited interviews

of Heishman’s family members in anticipation of the penalty

phase.

According to Heishman, had trial counsel conducted a

more comprehensive investigation, and begun the penalty

phase investigation earlier, they might have discovered addi-

tional mitigation evidence of Heishman’s difficult childhood

(even distinct from the sexual abuse we address separately

below). A declaration submitted by Dr. Leslie Lebowitz, a

clinical psychologist retained by Heishman in connection with

these habeas proceedings, describes several aspects of Heish-

man’s background that might have been offered as mitigation

evidence, including his sickly childhood, the family’s favorit-

ism toward his sister and infliction of emotional and physical

abuse, including whippings inflicted by his father and beat-

ings from his grandfather. According to Dr. Lebowitz, Heish-

man’s “fundamental relationships were uniformly abusive,

terrorizing and denigrating,” and “left him damaged, needy to

the point of desperation and self-loathing.” In comparison to

the picture painted by Dr. Lebowitz’s declaration, the jury

heard very little of Heishman’s troubled childhood.

[7] Whether trial counsel adequately investigated Heish-

man’s background under 1980 standards presents a close

question. On the one hand, counsel conducted some investiga-

tion into Heishman’s background, presented some mitigation

evidence of his troubled childhood and offered some evidence

designed to humanize him to the jury. On the other hand, the

investigation was limited. Neither Heishman nor his family

were interviewed extensively about his background, and a

more complete investigation might have revealed additional

mitigating evidence.

13640 HEISHMAN v. AYERS

[8] Even assuming counsel’s performance was deficient in

this respect, however, we conclude that there was no constitu-

tional error because Heishman has not shown prejudice. Put-

ting aside the history of sexual abuse discussed separately

below, the additional mitigation evidence that might have

been uncovered is not compelling when weighed against the

case in aggravation. The compelling aggravation case

included evidence of eight sexual assaults, and the jury had

just convicted Heishman of a calculated, cold-blooded murder

of another rape victim to prevent her from testifying — a truly

heinous crime. Thus, even if Heishman had offered the addi-

tional evidence of his difficult upbringing, he has not shown

a reasonable probability that the jury would have imposed a

sentence of life without parole. See, e.g., Wong v. Belmontes,

130 S. Ct. 383, 390 (2009) (per curiam) (finding no prejudice

where the aggravation evidence was “simply overwhelming”);

Rhoades v. Henry, 596 F.3d 1170, 1195 (9th Cir. 2010) (hold-

ing “that [petitioner’s] newly proffered facts . . . add too little,

and the aggravating circumstances are too strong, to make it

reasonably probable that the sentencing decision would have

been different but for counsel’s performance”). Counsel’s

investigation of Heishman’s background thus does not estab-

lish a Sixth Amendment violation.2

2

There is also no merit to Heishman’s related contention that counsel

unreasonably disregarded “red flags” in Heishman’s prison, probation and

state mental hospital records that should have prompted them to conduct

a more extensive investigation into his mental health background. To be

sure, an attorney has a duty to pursue investigatory leads suggested by a

defendant’s records. See, e.g., Wiggins, 539 U.S. at 526-27; Stankewitz,

365 F.3d at 719-20. But “[a] fair assessment of attorney performance

requires that every effort be made to eliminate the distorting effects of

hindsight . . . and to evaluate the conduct from counsel’s perspective at the

time.” Strickland, 466 U.S. at 689. With the benefit of hindsight, and in

particular given Heishman’s disclosure of childhood sexual abuse in 1990,

the records in possession of trial counsel in 1980 seem to point to the pos-

sibility of such abuse. Trial counsel, however, had neither the benefit of

those 1990 revelations nor training in psychology, and they had little rea-

son at the time to suspect that Heishman had been sexually abused as a

child.

HEISHMAN v. AYERS 13641

C. Failure to Follow Dr. Winig’s Recommendation for

Further Evaluation

Heishman also contends that counsel provided ineffective

assistance of counsel by disregarding Dr. Winig’s recommen-

dation to have Heishman evaluated by Dr. Paul Berg, a psy-

chologist. We hold that counsel’s performance was deficient,

but Heishman has not shown prejudice.

1. Relevant Facts

Trial counsel retained Dr. Winig to perform a psychologi-

cal evaluation of Heishman and to determine whether Heish-

man had any mental health defenses. On the first day of trial,

after meeting briefly with Heishman, Dr. Winig reported to

Costain, junior defense counsel, that Heishman was “evasive”

and could “give us nothing re mitigation” but recommended

that counsel obtain further “psychological evaluation.” Dr.

Winig recommended two psychologists, including Dr. Paul

Berg.

In response to Dr. Winig’s recommendation, trial counsel

asked for and obtained authorization from the public defend-

er’s office to retain Dr. Berg. But counsel inexplicably failed

to retain him. At the evidentiary hearing in the district court,

Costain testified that he likely advised Keep, his superior, of

Dr. Winig’s recommendation. Keep, on the other hand, testi-

fied that he could not recall Costain having discussed the rec-

ommendation with him. Keep asserted that had Costain

conveyed the recommendation to him, he would have

instructed Costain to retain Dr. Berg.

2. Reasonable Tactical Decision versus Deficient

Performance

[9] Counsel’s failure to follow Dr. Winig’s advice to

investigate Heishman’s mental condition constitutes deficient

performance unless it can be justified as a reasonable tactical

13642 HEISHMAN v. AYERS

decision. See Hendricks v. Calderon, 70 F.3d 1032, 1043 (9th

Cir. 1995) (“[W]here counsel is on notice that his client may

be mentally impaired, counsel’s failure to investigate his cli-

ent’s mental condition as a mitigating factor in a penalty

phase hearing, without a supporting strategic reason, consti-

tutes deficient performance.”); see also Bean v. Calderon, 163

F.3d 1073, 1078-80 (9th Cir. 1998) (finding penalty-phase

ineffective assistance of counsel where counsel waited 10

months to follow the recommendation of two mental health

experts for further neuropsychological testing, because “when

testing requested by expert witnesses is not performed, . . . a

capital defendant has not received effective penalty phase

assistance of counsel”); cf. Hendricks, 70 F.3d at 1037 (reject-

ing a guilt-phase ineffective assistance of counsel claim where

counsel followed a psychiatrist’s advice to obtain additional

psychological evaluation). We therefore turn to whether coun-

sel’s actions can be justified as a reasonable tactical decision,

as the state argues and the district court found.

[10] The district court concluded that counsel’s failure to

follow Dr. Winig’s advice was a reasonable tactical decision

because it was a byproduct of a reasonable decision on the

part of counsel not to offer any psychological evidence at the

penalty-phase trial. According to the district court, if counsel

were justified in ruling out a psychological defense, they nec-

essarily were also justified in cutting off further investigation

of such defenses. We cannot agree with that assessment. A

decision by counsel not to present mitigating evidence at trial

cannot be excused as a strategic decision unless it is supported

by reasonable investigations. Correll v. Ryan, 539 F.3d 938,

948 (9th Cir. 2008). Here, counsel did not know what psycho-

logical evidence Dr. Berg’s evaluation might have produced.

Hence, their decision to rule out a psychological defense can-

not have been reasonable.

[11] The state alternatively argues that we should presume

that trial counsel made a reasonable tactical decision not to

follow Dr. Winig’s recommendation because counsel can no

HEISHMAN v. AYERS 13643

longer remember the actual reasons for their actions. We need

not decide whether to adopt such a presumption, cf. Sallahdin

v. Mullin, 380 F.3d 1242, 1251 (10th Cir. 2004); Williams v.

Head, 185 F.3d 1223, 1228 (11th Cir. 1999); Fretwell v. Nor-

ris, 133 F.3d 621, 624 (8th Cir. 1998), because Keep has no

memory of receiving Winig’s recommendation. Presuming

that Costain told Keep of the recommendation that Heishman

be evaluated and that Keep then made a tactical decision not

to follow Dr. Winig’s advice would contradict Keep’s testi-

mony rather than filling a gap in memory, contravening the

Supreme Court’s admonition against adopting “a post hoc

rationalization of counsel’s conduct” instead of relying on an

“accurate description of their deliberations.” Wiggins, 539

U.S. at 526-27. We therefore hold that counsel’s failure to

investigate his client’s mental condition, without a supporting

strategic reason, constitutes deficient performance. See Hen-

dricks, 70 F.3d at 1043.

3. Prejudice

[12] We nonetheless conclude that Heishman has not

shown prejudice. The district court found that Heishman

would not have revealed his sexual abuse in 1980 even if

counsel had referred him to Dr. Berg. That finding is entitled

to deference. See Silva v. Woodford, 279 F.3d 825, 835 (9th

Cir. 2002) (“Our review for clear error is ‘significantly defer-

ential,’ in that we must accept the district court’s factual find-

ings absent a ‘definite and firm conviction that a mistake has

been committed.’ ” (quoting United States v. Syrax, 235 F.3d

422, 427 (9th Cir. 2000))); see also Strickland, 466 U.S. at

698; Cullen v. United States, 194 F.3d 401, 405 (2d Cir. 1999)

(distinguishing “a factual issue, albeit a hypothetical one”

from the ultimate issue of prejudice). We find no clear error

here because, as we shall explain, the evidence on this ques-

tion was equivocal.

On one hand, some evidence presented to the district court

supports a conclusion that Dr. Berg would have uncovered

13644 HEISHMAN v. AYERS

Heishman’s history of sexual abuse and diagnosed him with

PTSD. Melody Ermachild, a trained habeas investigator, was

able to elicit Heishman’s history of what appears to be shock-

ing sexual abuse by his grandfather (since deceased) by con-

ducting 10, two-hour interviews with Heishman over a six-

month period in 1990, using techniques similar to those which

would have been used by Dr. Berg in 1980. Dr. Berg himself

testified about the methods he would have used to extract

information from Heishman and about a number of “red

flags” in Heishman’s records that would have alerted him to

the possibility of sexual abuse and PTSD, and opined that it

was reasonably likely that he would have been able to elicit

the sexual abuse history and to diagnose PTSD in 1980. Dr.

Jay Jackman, another expert testifying on Heishman’s behalf,

concurred in those opinions.

Other evidence is to the contrary, however. For instance,

Heishman had never disclosed the sexual abuse to anyone

prior to 1990, despite opportunities to do so. For example,

although Heishman underwent treatment by psychiatrist Fred-

erick Boyes for nearly a year in 1969, he did not reveal his

grandfather’s abuse. Similarly, Heishman underwent exten-

sive evaluation with psychologist D.L. Kuykendall over a

five-month period in 1968 — “a detailed analysis of more

than twenty hours of diagnostic and therapeutic work” —

without revealing this information. Once, in 1967, Heishman

affirmatively denied — to a probation officer — that he had

been abused.

Heishman also might not have revealed the sexual abuse to

Dr. Berg “out of loyalty to his beloved grandmother,” who

was still alive in 1980, but who had passed away by the time

Heishman revealed the alleged abuse in 1990. Dr. Lebowitz

and Dr. Jackman also testified about “patterns of secrecy” and

a “code of silence” within the Heishman family. Drs.

Lebowitz, Jackman, Daniel Martell (the state’s expert) and

Berg all testified that men are more reticent to reveal sexual

abuse than women. Drs. Jackman and Berg also testified

HEISHMAN v. AYERS 13645

about the reluctance of prisoners to reveal a history of sexual

abuse based on fear that they will be sexually abused by other

inmates. Each of these factors would have presented an obsta-

cle in 1980.

We emphasize that the district court heard the testimony

from Dr. Berg and Dr. Jackman first hand and was therefore

in the best position to assess the weight to be accorded their

opinions. Dr. Berg’s testimony was weakened in several

respects: he conceded that he was unfamiliar with the Heish-

man family’s “code of secrecy”; he never personally inter-

viewed Heishman; and, most significantly, his opinion was

contradicted by Dr. Martell, who testified that it was unlikely

Heishman would have revealed the sexual abuse in 1980.

[13] Given the equivocal nature of the evidence, we cannot

say that the district court’s finding that Heishman would not

have disclosed the sexual abuse to Dr. Berg is clearly errone-

ous. Having so held, we necessarily must reject Heishman’s

prejudice argument. If Heishman would not have disclosed

the abuse, his attorneys could not have presented evidence of

the abuse or PTSD to the jury, and no juror could have been

swayed by such evidence to vote for life without parole.

Heishman’s ineffective assistance claim therefore fails.3

3

The concurrence posits that Heishman may be fabricating his claims of

sexual abuse. We recognize that possibility, though we point out both that

we need not reach that issue and that the possibility of prevarication is

contrary to the weight of the evidence in the record before us. Even the

state’s expert, Dr. Martell, acknowledged that the abuse likely occurred,

see Martell Depo. 21-22, and the state has not meaningfully challenged

that conclusion in these proceedings.

We also need not speculate about how Heishman’s alleged history of

sexual abuse would, or would not, have been presented to the jury in 1980

had Heishman revealed the abuse to Dr. Berg. We note, however, that the

jury could have heard about Heishman’s sexual abuse in one of two ways.

First, trial counsel could have presented expert psychological testimony

regarding Heishman’s diagnosis for post-traumatic stress disorder. If so,

the expert would have been able to base her opinions on inadmissible

13646 HEISHMAN v. AYERS

IV. Strickland Expert

After the district court hearing concerning the ineffective

assistance claim, Heishman moved to expand the record to

include testimony of a Strickland expert and for authorization

of funds to retain the expert. In the alternative, Heishman

moved to supplement the record with a declaration from the

proposed expert. The district court denied these requests, con-

cluding that “expert testimony on the standard of care is not

required.” We hold that the district court did not abuse its dis-

cretion by concluding that it was “in a position to evaluate

counsel’s performance” and “that petitioner’s proffered expert

would not assist the court in determining the issues before it.”

[14] A federal court may determine that it does not require

expert assistance “to understand the legal analysis required by

Strickland.” Bonin v. Calderon, 59 F.3d 815, 838 (9th Cir.

1995); see also Fed. R. Evid. 702, 1972 Comm. Note (direct-

ing courts to ask whether the finder of fact “would be quali-

fied to determine intelligently and to the best possible degree

the particular issue without enlightenment from those having

a specialized understanding of the subject involved in the dis-

pute”). Although some judges may find expert testimony

helpful, see, e.g., Sims v. Brown, 425 F.3d 560, 584 (9th Cir.

2005) (upholding denial of a Strickland claim where eight

hearsay — Heishman’s out-of-court statements regarding sexual abuse —

and to discuss both those opinions and the underlying hearsay in court,

just as Heishman’s experts have done in these habeas proceedings. See

Cal. Evid. Code § 801(b). Second, Heishman himself might have testified

about the alleged abuse. Putting Heishman on the stand would have pres-

ented risks, but would not necessarily have exposed him to sweeping

cross-examination. See People v. Ramirez, 791 P.2d 965, 987-88 (Cal.

1990) (holding that the scope of cross-examination did not extend to any

bad acts committed by the defendant during his life where defendant pres-

ented evidence of adverse circumstances that he experienced in his early

childhood rather than evidence of his general good character). It is there-

fore at least plausible that trial counsel would have chosen to have Heish-

man testify about the abuse.

HEISHMAN v. AYERS 13647

experts testified but none addressed “prevailing legal norms”),

it is within a district court’s discretion to exclude proposed

expert testimony concerning a legal standard of care and to

rely solely on the briefs, see LaGrand v. Stewart, 133 F.3d

1253, 1271 n.8 (9th Cir. 1998); see also Williams v. Wood-

ford, 384 F.3d 567, 613 n.17 (9th Cir. 2004) (holding that

rejection of a proposed Strickland expert was not a prejudicial

abuse of discretion). Because the district court was in the best

position to determine whether it would benefit from expert

testimony concerning prevailing death penalty defense stan-

dards, it did not abuse its discretion by declining to authorize

payment for a Strickland expert and excluding the expert’s

declaration.

V. Uncertified Issues

[15] We decline to issue a certificate of appealability con-

cerning Heishman’s competency or cumulative error claims.

Heishman has not made a substantial showing of a denial of

a constitutional right based either on the likelihood that he

would not have disclosed childhood abuse to defense counsel

had he been asked or on cumulative error. See 28 U.S.C.

§ 2253(c)(2); see also Miller-El v. Cockrell, 537 U.S. 322,

335-38 (2003).

VI. Conclusion

For the preceding reasons, we hold that the district court

did not err by denying Heishman’s Brady, Napue and Strick-

land claims and did not abuse its discretion by denying funds

for an expert concerning death penalty defense standards or

by declining to admit the opinion evidence of such an expert.

AFFIRMED.

13648 HEISHMAN v. AYERS

SILVERMAN, Circuit Judge, concurring:

There is only one living witness to the abuse supposedly

inflicted on Heishman by his grandfather, Jack Schatt — peti-

tioner Harvey Lee Heishman himself. And yet Heishman has

never testified that he was abused by Schatt; he has submitted

no declaration to that effect; and his counsel have made no

avowal or proffer that Heishman would ever so testify.

How, then, did this “fact” get before the court? The answer

is that mitigation specialists hired by Heishman’s federal

habeas counsel reported that they succeeded in eliciting this

information from him. It was their reports of Heishman’s out-

of-court statements to them that came before the court, not

any first-hand testimony from Heishman himself.

Rule 703 of the Federal Rules of Evidence permits experts

to render opinions even if based on hearsay so long as the

hearsay is of the type reasonably relied on by experts in that

field. But that rule does not convert the underlying inadmissi-

ble hearsay into admissible testimony — it only makes the

opinion admissible. As we said in Paddack v. Dave Christen-

sen, Inc., 745 F.2d 1254, 1261-2 (9th Cir. 1984), “Rule 703

merely permits such hearsay, or other inadmissible evidence,

upon which an expert relies, to be admitted to explain the

basis of the expert’s opinion. [citations omitted.] It does not

allow the admission of the reports to establish the truth of

what they assert.”

This is just common sense. If the law were otherwise, a

party could use an expert as a conduit for self-serving state-

ments and totally avoid cross-examination. In fact, that is

what has happened here — Heishman has gotten his newly-

developed abuse story before the court (of which he alone

supposedly has first-hand knowledge) without having to sub-

ject himself to any questions about it.

And it is not as though this blatant hearsay is particularly

reliable and therefore admissible under the residual hearsay

HEISHMAN v. AYERS 13649

exception of Federal Rule of Evidence 807. To the contrary,

the hearsay from Heishman’s experts not only flatly contra-

dicts Heishman’s previous and long-standing statements about

his childhood, but was developed after he had lost his state

court appeals, was turned down by the United States Supreme

Court, and was inching closer and closer to execution. In

other words, these hearsay statements were made at a time

when Heishman had a very strong incentive to prevaricate.

Moreover, these statements were not made to clinicians in a

therapeutic setting for the purposes of treatment, a situation

that imparts a circumstantial guarantee of trustworthiness.

Rather, they were made to experts hired by his own lawyers

to develop information in aid of the litigation.

I do not know whether or not Heishman had been abused

by his grandfather. The only living soul who does know is

Heishman, and he neither testified nor furnished a declaration.

Thus, there was no admissible evidence before the district

court that the supposed abuse ever occurred. In the absence of

such proof, the premise of the habeas petition fails. Neverthe-

less, if we hypothesize that Heishman would have testified in

court to the things his proxies say he told them, the reasoning

of the per curiam opinion is sound: the district court did not

abuse its discretion in finding as a matter of fact that Heish-

man would not have made his disclosure about his grandfa-

ther back in 1980, even if his trial counsel had caused him to

be examined by Dr. Berg. For that reason, I concur.