The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISTIN ROSSUM,
Petitioner-Appellant, No. 09-55666
v. D.C. No.
DEBORAH PATRICK, Warden, & 3:07-cv-1590-JLS-
EDMUND G. BROWN JR., Attorney JMA
General of the State of California, OPINION
Respondents-Appellees.*
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Argued and Submitted
April 6, 2010—Pasadena, California
Filed September 23, 2010
Before: Dorothy W. Nelson and Stephen Reinhardt,
Circuit Judges, and Nancy Gertner, District Judge.**
Opinion by Judge Gertner
*Although appellant’s habeas petition lists California Attorney General
Edmund G. Brown Jr. as a respondent, the only proper responding party
is the warden of the prison where appellant is incarcerated. Rules Govern-
ing Section 2254 Cases, Rule 2(a); Stanley v. Cal. Supreme Court, 21 F.3d
359, 360 (9th Cir. 1994). As a result, the Attorney General should be dis-
missed as a named respondent on remand. In this opinion, we will use the
singular term “appellee” instead of the plural term “appellees” to refer to
the respondent.
**The Honorable Nancy Gertner, United States District Judge for the
District of Massachusetts, sitting by designation.
16115
16118 ROSSUM v. PATRICK
COUNSEL
William J. Genego, Nasatir, Hirsch, Podberesky & Genego,
Santa Monica, California, for the petitioner-appellant.
ROSSUM v. PATRICK 16119
Edmund G. Brown Jr., Attorney General, Dane R. Gillette,
Chief Assistant Attorney General, Gary W. Schons, Senior
Assistant Attorney General, Kevin Vienna, Supervising Dep-
uty Attorney General, Kyle Niki Shaffer, Deputy Attorney
General, San Diego, California, for the respondent-appellee.
OPINION
GERTNER, District Judge:
State prisoner Kristin Rossum appeals the district court’s
denial of her petition for a writ of habeas corpus. We reverse
and remand for the district court to hold an evidentiary hear-
ing on Rossum’s claim that she was deprived of her Sixth
Amendment right to the effective assistance of counsel.
Rossum was convicted of murdering her husband, Gregory
de Villers. The prosecution’s theory of the case was that Ros-
sum poisoned de Villers using fentanyl, a powerful synthetic
opiate. Rossum contends that her counsel rendered ineffective
assistance by failing to have de Villers’s autopsy samples
tested for fentanyl metabolites, a test that would have resolved
whether de Villers had in fact ingested fentanyl or whether
fentanyl found in the samples was a product of laboratory
contamination subsequent to his death. Rather than investigat-
ing, Rossum’s counsel simply conceded that the cause of
death was fentanyl.
The prosecution’s case was purely circumstantial, hinging
in large measure on toxicological and medical evidence which
was equivocal. The fentanyl levels in de Villers’s autopsy
samples were extraordinarily, even unnaturally, high. While
these elevated concentration levels suggested that death was
immediate, they were at odds with medical evidence which
indicated that de Villers lingered in a state of unconsciousness
for several hours before he died.
16120 ROSSUM v. PATRICK
The potential for contamination of the samples was not
remote. Rossum and her love interest both worked at the San
Diego County Office of the Medical Examiner (OME), which
ordinarily would have performed the toxicological analysis of
de Villers’s samples. The OME was sufficiently concerned
about the possibility of a conflict of interest that it decided to
send the samples to another lab for testing. Nevertheless, the
samples were stored in an unsecured refrigerator at the OME
for thirty-six hours.
In addition to opportunity, there was motive to contaminate
in the swirl of personal relationships among the OME’s
employees. But even if those motives are speculative, as the
district court concluded, the samples could have been tested
for contamination by analyzing them for the presence of
metabolites of fentanyl, which are chemical compounds pro-
duced when the liver processes the drug. If no metabolites
were found, it would have proven that fentanyl had not been
in de Villers’s body prior to his autopsy and thus could not
have caused his death.
Without first having such tests conducted, Rossum’s attor-
neys accepted the prosecution’s theory that de Villers died
from an overdose of fentanyl but claimed that he committed
suicide. The medical and toxicological evidence, however,
suggested that if fentanyl caused de Villers’s death, it must
have been administered to him multiple times. Since de Vil-
lers was too comatose to self-administer fentanyl in the hours
immediately preceding his death, the defense’s suicide-by-
fentanyl theory was highly implausible. And the choice of this
approach is particularly significant since there was an alterna-
tive cause of death consistent with the evidence and poten-
tially consistent with suicide.
In light of the anomalous medical and toxicological evi-
dence, the ready availability of an alternative cause of death,
the lapse in the chain of custody of de Villers’s autopsy speci-
mens, and the failure of Rossum’s attorneys to have a test
ROSSUM v. PATRICK 16121
conducted that could have conclusively contradicted the pros-
ecution’s theory of the case, she has made a strong showing
that her lawyers’ performance was deficient.
Given the limited record before us, however, we cannot
determine whether Rossum is entitled to habeas relief. We
thus remand the case for the district court to hold an evidenti-
ary hearing, particularly, but not exclusively, with respect to
prejudice.
BACKGROUND
I. Factual Background1
When Rossum met de Villers in early 1995, she was abus-
ing methamphetamine. He helped her to stop using the drug,
and they married in June 1999.
While in college in 1997, Rossum began working at the
OME. After graduating summa cum laude with a degree in
chemistry, Rossum was hired by the OME as a toxicologist in
March 2000. (A toxicologist analyzes bodily fluids to deter-
mine whether drugs are present.)
Around the time that the OME hired Rossum, it appointed
Michael Robertson to the position of Forensic Laboratory
Manager. Robertson, an Australian citizen, had not previously
worked for the OME. He replaced Russ Lowe, a longtime
OME employee who had been serving as acting laboratory
manager.
Rossum and Robertson—who, like Rossum, was married at
the time—began having a sexual relationship in June 2000.
1
The facts here are drawn primarily from the California Court of
Appeal’s decision affirming Rossum’s conviction. People v. Rossum, No.
D041343, 2005 WL 1385312, at *1-*3 (Cal. Ct. App. June 13, 2005), sup-
plemented by facts deriving from the record on file with this Court.
16122 ROSSUM v. PATRICK
Several OME employees suspected the affair. At trial, Lowe
and OME toxicologist Catherine Hamm testified that some of
Rossum’s coworkers resented her for it, believing that she
might receive special treatment from Robertson, who was her
supervisor.
Rossum resumed using methamphetamine in October 2000.
On Thursday, November 2, 2000, de Villers confronted her
about his suspicions—that she was using drugs again and
worse, that she was having an affair with Robertson. He
demanded that she resign from the OME and threatened that
if she did not, he would reveal her drug use and her affair to
her employer.
Rossum testified that when de Villers awoke on the morn-
ing of Monday, November 6, he seemed “out of it”; his
speech was slurred. She called his workplace at 7:42 a.m. and
left a voicemail message stating that he was ill and probably
would not come to work that day.
Rossum went to work at 8:00 that morning; coworkers saw
her crying in Robertson’s office an hour later. The manager
of her apartment complex observed her running into her apart-
ment at 12:10 p.m. At 12:41 p.m., Rossum purchased several
items at a grocery store. According to Rossum, she returned
to her apartment and ate lunch with de Villers. She testified
that when she asked him why he had been so “out of it” that
morning, he told her that he had taken some of her oxycodone
and clonazepam, which she had obtained years earlier when
she was trying to end her methamphetamine addiction. She
testified that de Villers went back to bed after lunch.
Rossum returned to work, but left again at 2:30 p.m. The
manager of her apartment saw her car in the parking lot of the
complex at 2:45 p.m. She met with Robertson later that after-
noon and stayed with him until about 5:00 p.m., when she
returned to her apartment. She left her apartment again at
about 6:30 p.m. to run some errands and returned home at
ROSSUM v. PATRICK 16123
about 8:00 p.m. Rossum testified that de Villers still appeared
to be sleeping at that time. She kissed him on the forehead
and then took a bath and shower. After the bath and shower,
she found de Villers to be cold to the touch and not breathing.
Rossum called 911 at 9:22 p.m. The operator told her to
move de Villers’s body to the floor and attempt CPR. When
paramedics arrived, they found his body on the floor with red
rose petals and a stem strewn around him.2 Rossum initially
told the paramedics that he had not taken any drugs as far as
she knew, but later told them that he may have taken oxyco-
done.
De Villers was pronounced dead at the hospital at 10:19
p.m. While at the hospital, Rossum told a nurse that de Villers
may have overdosed on oxycodone.
Dr. Brian Blackbourne, the San Diego County Medical
Examiner, performed de Villers’s autopsy. He determined that
de Villers had been dead for at least an hour before the
paramedics arrived. He testified that de Villers had developed
early bronchopneumonia, a condition that results when secre-
tions that are normally removed by the breathing process
accumulate in the lungs. It occurs when a person is “uncon-
scious or not breathing very deeply.” Dr. Blackbourne also
noted that de Villers had approximately 550 milliliters of
urine in his bladder, which was a significant amount and
would have been “very uncomfortable” to a conscious person.3
2
The parties disputed the source of the rose at trial. The prosecution
alleged that Rossum bought the rose during her trip to the grocery store
on Monday. Although Rossum admitted to purchasing a rose from the gro-
cery store, she claimed that it had yellow petals and that she gave the rose
to Robertson when they met later Monday afternoon. The defense sug-
gested that the rose petals found around de Villers’s body came from the
sole remaining rose of a bouquet that de Villers had given to Rossum for
her birthday.
3
Most individuals would feel a need to empty their bladders when 150
milliliters of urine had accumulated. At 400 milliliters, the feeling would
be urgent.
16124 ROSSUM v. PATRICK
The combination of the bronchopneumonia in de Villers’s
lungs and the amount of urine in his bladder led Dr. Black-
bourne to conclude that de Villers had been immobile and not
breathing properly for approximately six to twelve hours prior
to his death.
Lloyd Amborn, the operations administrator of the OME,
decided that an outside laboratory should perform the toxico-
logical tests on the autopsy specimens taken from de Villers’s
body to avoid any potential conflict of interest. This was the
first time Amborn had used an outside agency to conduct such
tests.
After the autopsy, de Villers’s specimens were supposed to
be taken to the sheriff’s office, which would then transfer
them to the outside toxicology lab for testing. The specimens
were placed in a cardboard box, with each individual con-
tainer marked as a sample taken from de Villers’s body.
Because the individual at the sheriff’s office who was sup-
posed to receive the samples was not immediately available
to take possession of them, the box was taken to the OME.
The specimens remained in a refrigerator at the OME for
approximately thirty-six hours and were then transported to
the sheriff’s crime lab on the morning of Thursday, November
9, 2000.
While the autopsy specimens were at the OME, anyone
with a key to the building had access to them. The containers
were not sealed; their tops could be pulled off and then
replaced. Indeed, on Wednesday, November 8, 2000, Robert-
son commented to one of the toxicologists at the OME that he
had looked at a sample of de Villers’s stomach contents.
That same day, November 8, Russ Lowe—the veteran
OME employee who served as acting laboratory manager
before Robertson was appointed—called the police to report
Rossum and Robertson’s affair. In its closing argument, the
ROSSUM v. PATRICK 16125
prosecution characterized Lowe’s call as a turning point that
focused the police’s attention on the possibility of foul play.
Toxicology tests showed that de Villers’s autopsy speci-
mens contained extremely high concentrations of fentanyl, as
well as a smaller amount of clonazepam and a trace level of
oxycodone. At Rossum’s trial, Dr. Blackbourne testified that
the concentration of clonazepam found in de Villers’s blood
was at the high end of what would be considered a therapeutic
level, but that it was “not an overdose level” and “not fatal.”
He conceded, however, that sometimes postmortem testing
reveals a lower concentration of a drug than had previously
been present in the body. As a result of such postmortem
redistribution, what was a fatal concentration of a particular
drug at the time of a person’s death could be measured as
being within the therapeutic range at the time of autopsy. The
jury also heard testimony that oxycodone, which is an opiate,
and clonazepam, a benzodiazepine, can have a “synergistic”
effect on each other, meaning that each drug is made more
powerful when taken with the other.
The discovery of fentanyl in de Villers’s samples was sig-
nificant and unexpected. Fentanyl is a synthetic opiate that is
roughly 100 to 150 times more powerful than morphine. At
the time of de Villers’s death, the OME did not ordinarily test
samples for fentanyl since it is not a regularly abused drug.
However, Pacific Toxicology, the outside laboratory to which
the samples were first sent, tested for fentanyl as part of its
standard “drugs of abuse” screen. After receiving the test
results from Pacific Toxicology, Dr. Blackbourne concluded
that de Villers died of acute fentanyl intoxication.
Prior to Rossum’s trial, de Villers’s samples were also sent
to two other laboratories for testing: the Alberta Office of the
Chief Medical Examiner in Canada and Associated Patholo-
gist Laboratories in Las Vegas, Nevada. As the following
chart demonstrates, the concentration levels of fentanyl mea-
sured by the different laboratories varied considerably:
16126 ROSSUM v. PATRICK
Alberta Office of Pacific Associated
the Chief Medical Toxicology Pathologist
Examiner Laboratories Laboratories
201 ng/mL, 286.5 ng/mL,
Stomach Contents 128 ng/mL
210 ng/mL 329.7 ng/mL
Urine — 189 ng/mL 236 ng/mL
Blood — 57.3 ng/mL 32.8 ng/mL
Peripheral Blood — 11.2 ng/mL —
Antemortem
— 35.8 ng/mL —
Blood
Right Proximal
Forearm Ulnar — 21.3 g —
Aspect Tissue
Key: “g” is grams; “ng” is nanograms; “mL” is milliliters; “—” indicates that
there are no results in the record
At Rossum’s trial, the prosecution called Dr. Theodore
Stanley as an expert witness on the properties and characteris-
tics of fentanyl. Dr. Stanley testified that fentanyl is a potent
and generally fast-acting pain reliever. The drug has one seri-
ous side effect; it can cause a person to stop breathing. Dr.
Stanley testified that fentanyl begins to affect respiration at a
concentration level in the blood of 2 ng/mL. At a concentra-
tion of 4 ng/mL, about half of “opioid naive” individuals—
people without significant experience taking opiates—would
be breathing very slowly or not at all. At 57.3 ng/mL, the con-
centration found in de Villers’s blood by Pacific Toxicology,
no opioid-naive individual would be conscious or breathing.4
Dr. Stanley testified that the speed with which fentanyl
takes effect depends on the manner in which the drug is
administered: the peak effect occurs about sixteen hours after
4
No evidence was presented at trial that de Villers was inured to the
effects of fentanyl through the regular abuse of opiates. (See testimony
from Rossum that the only drug de Villers used was marijuana).
ROSSUM v. PATRICK 16127
administration of a transdermal patch, twenty to thirty min-
utes after oral consumption, fifteen to twenty minutes after
intramuscular injection, and five minutes after intravenous
injection. He explained that fentanyl is not normally adminis-
tered orally because when the drug is taken in this way, the
liver destroys about 65 percent of it, leaving only about 35
percent to enter the bloodstream.
None of the three physicians who testified at Rossum’s trial
—Dr. Blackbourne, Dr. Stanley, or the defense expert on fen-
tanyl, Dr. Mark Wallace—could provide a definitive opinion
as to how the fentanyl was introduced into de Villers’s body.
Dr. Stanley, however, testified that the differing concentration
levels in de Villers’s system, along with the evidence indicat-
ing that de Villers had been unconscious and breathing shal-
lowly for hours before his death, suggested that fentanyl
likely had been administered to de Villers on multiple occa-
sions.
After de Villers’s death, the OME audited its impounded
drugs and drug standards.5 It discovered that fifteen fentanyl
patches and ten milligrams of fentanyl standard were missing.
Rossum had logged in the fentanyl standard and had worked
on each of the three cases in which the missing fentanyl
patches had been impounded. The OME also determined that
quantities of methamphetamine, clonazepam, and oxycontin
(a time-released form of oxycodone) were missing.
II. Rossum’s Trial and Post-Trial Proceedings
Rossum was prosecuted for the murder of de Villers with
the special circumstance that the murder was committed by
means of poison. Cal. Penal Code §§ 187, 190.2(a)(19). Her
jury trial began in October 2002. At trial, the prosecution
5
The OME impounds drugs discovered at the scene of an individual’s
death and maintains an inventory of “drug standards”—quantities of par-
ticular drugs used as reference material during testing procedures.
16128 ROSSUM v. PATRICK
argued that Rossum poisoned de Villers with fentanyl, possi-
bly after she gave him clonazepam but the clonazepam failed
to kill him. The defense conceded that fentanyl caused de Vil-
lers’s death but contended that de Villers committed suicide
because he was despondent over his marital problems.
The jury found Rossum guilty in November 2002, and in
December 2002 the court sentenced her to prison for life with-
out the possibility of parole.
On June 13, 2005, the California Court of Appeal affirmed
Rossum’s conviction on direct review and denied her concur-
rently filed petition for a writ of habeas corpus. The Califor-
nia Supreme Court summarily denied her petition for review
of her direct appeal.
On December 15, 2006, Rossum filed a petition for a writ
of habeas corpus in the California Supreme Court.6 The peti-
tion asserted for the first time the claim at issue in this appeal
—that Rossum’s trial counsel rendered ineffective assistance
by not having de Villers’s autopsy samples tested for fentanyl
metabolites despite the fact that such tests might have ruled
out fentanyl as the cause of de Villers’s death and thus dispro-
ven the prosecution’s theory of the case. Instead, as the peti-
tion stated, counsel promptly conceded the prosecution’s
theory—that fentanyl was the cause of de Villers’s death.
Rossum supported her petition with a declaration from Dr.
Steven H. Richeimer, a medical professor and practitioner
with substantial experience in anesthesiology and requested
6
As we have previously explained:
In California, the state supreme court, intermediate courts of
appeal and superior courts all have original habeas corpus juris-
diction. . . . If the court of appeal denies [habeas] relief, the peti-
tioner may seek review in the California Supreme Court by way
of a petition for review, or may instead file an original habeas
petition in the supreme court.
Redd v. McGrath, 343 F.3d 1077, 1079 n.2 (9th Cir. 2003).
ROSSUM v. PATRICK 16129
an evidentiary hearing. Dr. Richeimer has overseen the
administration of fentanyl on thousands of occasions and is
well versed in the drug’s characteristics and properties. His
declaration explains that fentanyl “is a very rapidly acting
drug.” As a result, “[i]f very high doses [were] rapidly admin-
istered” to de Villers, then he likely would have died “within
minutes,” “not in a manner consistent with the 6-12 hours of
impaired breathing and consciousness described by Dr. Black-
bourne.” Alternatively, if de Villers absorbed fentanyl “gradu-
ally, perhaps through the stomach,” then he likely would not
have survived “long enough for [his] blood levels to reach the
extremely high levels” measured by the toxicology labs.
Dr. Richeimer’s declaration states that contamination of the
samples drawn from de Villers’s body could explain the
seeming “inconsistency between the rapid action of fentanyl,
the extraordinarily high concentration levels, and the lengthy
period of impaired breathing and reduced consciousness” that
de Villers suffered. Indeed, Dr. Richeimer opines:
[C]ontamination of the specimens would explain the
high blood levels better than ingestion or other
administration of fentanyl to the decedent. . . . [I]n
attempting to determine if the cause of death was
from fentanyl, it would be necessary to rule out the
possibility that the samples were contaminated.
Richeimer Decl. at 3.
According to Dr. Richeimer, a toxicology lab could conclu-
sively determine whether fentanyl was present in de Villers’s
body at the time of his death by testing his samples for metab-
olites of fentanyl. If de Villers’s specimens contain metabo-
lites of fentanyl, then fentanyl must have been present in his
body at the time the specimens were taken. If no metabolites
are present, then the specimens must have been contaminated
after his death.
16130 ROSSUM v. PATRICK
The California Supreme Court summarily denied Rossum’s
habeas petition in a one-sentence order on August 8, 2007.
Two days later, Rossum filed a federal habeas petition under
28 U.S.C. § 2254. The magistrate judge to whom Rossum’s
petition was assigned issued a report and recommendation
advising that the petition be denied. The district court adopted
this recommendation and denied Rossum’s petition on April
8, 2009. It concluded that her trial counsel’s performance was
not deficient, and that even if it was, she did not suffer any
prejudice. It also denied Rossum’s motion, made under Rule
6 of the Rules Governing Section 2254 Cases, for leave to test
de Villers’s autopsy specimens for metabolites of fentanyl.
Rossum requested a certificate of appealability, which the dis-
trict court granted on April 24, 2009.
DISCUSSION
I. Governing Legal Standards
We review a district court’s denial of a petition for a writ
of habeas corpus raising claims of ineffective assistance of
counsel de novo. Reynoso v. Giurbino, 462 F.3d 1099, 1108-
09 (9th Cir. 2006). Any factual findings made by the district
court are reviewed for clear error. Id.
Since Rossum filed her federal habeas petition after April
24, 1996, the effective date of the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), the district court
could not grant her habeas relief unless the California
Supreme Court’s decision denying her state habeas petition
“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); see also
Reynoso, 462 F.3d at 1109. “When, as in the instant case, ‘no
reasoned state court decision denying a habeas petition
exists,’ this court must assume that the state court has decided
all the issues and ‘perform an independent review of the
record to ascertain whether the state court decision was objec-
ROSSUM v. PATRICK 16131
tively unreasonable.’ ” Reynoso, 462 F.3d at 1109 (quoting
Pham v. Terhune, 400 F.3d 740, 742 (9th Cir. 2005) (per
curiam)); see also Williams v. Taylor, 529 U.S. 362, 409
(2000) (“[A] federal habeas court making the ‘unreasonable
application’ inquiry [under section 2254(d)(1)] should ask
whether the state court’s application of clearly established
federal law was objectively unreasonable.”).
The “clearly established federal law” that applies in this
case is the framework articulated for analyzing claims of inef-
fective assistance of counsel in Strickland v. Washington, 466
U.S. 668 (1984). See Williams, 529 U.S. at 390 (applying
Strickland as the “clearly established federal law” that gov-
erned petitioner’s ineffective-assistance claim). Under Strick-
land, Rossum must prove that (1) her counsel’s performance
was deficient, and (2) she suffered prejudice as a result. 466
U.S. at 687. To be deficient, an attorney’s conduct must fall
below an “objective standard of reasonableness” established
by “prevailing professional norms.” Id. at 687-88. To demon-
strate prejudice, Rossum does not need to show that her coun-
sel’s deficient performance more likely than not affected the
outcome of the case. Instead, she must demonstrate only a
“reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been differ-
ent.” Id. at 694. The Supreme Court has defined a “reasonable
probability” as “a probability sufficient to undermine confi-
dence in the outcome.” Id.
II. The Merits of Rossum’s Strickland Claim
A. Deficient Performance
A competent attorney would not have conceded that fenta-
nyl caused de Villers’s death without first having his autopsy
specimens tested for metabolites of fentanyl; a determination
to the contrary, particularly without an evidentiary hearing,
would constitute an unreasonable application of Supreme
16132 ROSSUM v. PATRICK
Court law, unless counsel could show some strategic reason
for his failure to conduct an elementary investigation.
[1] Strickland recognized that an attorney’s duty to provide
reasonably effective assistance includes the “duty to make
reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary.” Strickland,
466 U.S. at 691; see also ABA Standards for Criminal Justice:
Prosecution Function and Defense Function 4-4.1(a) (3d ed.
1993) (“Defense counsel should conduct a prompt investiga-
tion of the circumstances of the case and explore all avenues
leading to facts relevant to the merits of the case . . . .”). In
Rossum’s case, this investigatory duty extended to the cause
of de Villers’s death. Rossum’s attorneys were presented with
“tantalizing indications” that de Villers’s autopsy specimens
might have been contaminated: the medical and toxicological
evidence raised serious questions as to whether fentanyl could
have caused de Villers’s death, an alternative cause of death
was readily apparent, and there was a lapse in the chain of
custody of de Villers’s autopsy specimens. Stankewitz v.
Woodford, 365 F.3d 706, 719-20 (9th Cir. 2004).
[2] The medical and toxicological evidence would have
prompted a competent attorney to question Dr. Blackbourne’s
conclusion that de Villers died from an overdose of fentanyl.
The fentanyl concentration levels measured by the three toxi-
cology labs were widely disparate, suggesting, at the very
least, that something might have been amiss with de Villers’s
autopsy specimens. The measurements were also extraordi-
narily high. Dr. Stanley, the prosecution’s fentanyl expert, tes-
tified that at a concentration of 4 nanograms of fentanyl per
milliliter of blood, about fifty percent of people would be
breathing very slowly or not at all. The concentration of fenta-
nyl that Pacific Toxicology measured in de Villers’s blood
was about fourteen times this level. Dr. Stanley also testified
that in his decades of experience with anesthesiology, he had
never seen fentanyl concentrations as high as those measured
in de Villers’s stomach. Given fentanyl’s potency, a compe-
ROSSUM v. PATRICK 16133
tent attorney would have wondered how the concentration of
fentanyl in de Villers’s blood, urine, and stomach contents
could have reached such an extraordinary level before the
drug killed him.7
[3] Competent counsel would also have questioned how de
Villers could have lingered for six to twelve hours before
finally succumbing to fentanyl. As Dr. Richeimer’s declara-
tion indicates, if Rossum administered a single, large dose of
fentanyl to de Villers, then he almost certainly would have
died within a matter of minutes, not hours. If, instead, de Vil-
lers absorbed fentanyl gradually, his breathing would have
stopped, and thus he would have perished long before the
concentration of fentanyl in his blood reached the strato-
spheric levels measured by the toxicology labs.8 The inconsis-
tency between fentanyl’s potency and its relatively rapid
onset, on the one hand, and de Villers’s prolonged period of
unconsciousness and his extraordinarily high toxicology
results, on the other, would have prompted a competent attor-
ney to investigate the possibility that de Villers’s death was
caused by another substance.
[4] Rossum’s lawyers would not have had to look far for
an alternative explanation of de Villers’s death. In addition to
fentanyl, toxicologists also found clonazepam and oxycodone
7
There is some evidence suggesting that fentanyl has a unique property:
unlike most drugs, concentrations of fentanyl may increase after death. Dr.
Stanley, however, testified that the concentration of fentanyl measured
after death would likely be no more than about twenty percent higher than
the concentration before death. Thus, even if one takes into account the
possibility that the concentration of fentanyl in de Villers’s bodily fluids
rose slightly after his death, the levels measured by the toxicology labs
were still exceptionally high.
8
Dr. Stanley did testify that de Villers’s blood levels potentially could
have been obtained through the application of multiple transdermal
patches. But his opinion on this issue was very tentative. He admitted that
he was “not sure” that such levels could be achieved because he had never
placed that many patches on a patient.
16134 ROSSUM v. PATRICK
in de Villers’s autopsy specimens. True, the concentration of
clonazepam was in the high therapeutic range, and only a
trace amount of oxycodone was found. But Dr. Stanley testi-
fied that clonazepam and oxycodone are synergistic, each
multiplying the effect of the other when they are taken in
combination. Thus, a concentration of clonazepam near the
top of the therapeutic range could potentially have turned
lethal when its effect was compounded by the presence of
oxycodone. In addition, Dr. Stanley conceded that the concen-
tration of clonazepam in de Villers’s body might have fallen
after his death due to postmortem redistribution. De Villers
thus might have had a fatal concentration of clonazepam in
his body at the time of his death, even though the postmortem
testing of his autopsy specimens produced measurements
within the therapeutic range.
[5] The lapse in the chain of custody of de Villers’s
autopsy samples would also have led a competent attorney to
investigate the possibility of contamination. Although con-
cerns about a potential conflict of interest prompted the OME
to send de Villers’s specimens to an outside laboratory for
testing, it nevertheless stored the samples at its lab for a
period of thirty-six hours before they were transferred to the
sheriff’s office. During this time, anyone with a key to the
OME had access to the specimens. Indeed, Robertson claimed
to have opened at least one of the samples while they were
housed at the OME. Since the OME stores fentanyl at its lab,
contamination—whether intentional or unintentional—could
have occurred.
While the district court concluded that the possibility of
intentional contamination was speculative, the record indi-
cates otherwise. Although the potential motivations for such
an act are manifold, two are particularly salient. First, the
samples could have been contaminated by a coworker upset
by the preferential treatment Rossum seemed to receive from
Robertson. Second, an OME employee seeking to dethrone
Robertson from his position as laboratory manager could have
ROSSUM v. PATRICK 16135
contaminated the specimens to cast suspicion on both him and
Rossum.9
[6] The appellee rejoins that if one of Rossum’s coworkers
had decided to frame her or Robertson, he would not have
used fentanyl to do so because he would have known that tox-
icology labs rarely test for fentanyl. The record belies this
contention. As an initial matter, the appellee’s argument does
not account for the possibility of unintentional contamination.
It also fails to recognize that OME employees could well have
known that de Villers’s specimens would be sent to an outside
lab, and the first lab selected to analyze de Villers’s samples,
Pacific Toxicology, did test for fentanyl as part of its standard
“drugs of abuse” screen. Finally, the argument ignores the
manner in which toxicology testing is ordinarily done. Dr.
Blackbourne testified that if a toxicology lab’s initial testing
fails to disclose a cause of death, further tests are often con-
ducted to determine if less common substances are present in
the decedent’s body. Even if fentanyl were not initially dis-
covered by toxicologists, then, it might have been found in
later tests.
The appellee also contends that Rossum has failed to show
that her coworkers held sufficient animosity toward her to
motivate them to take the drastic step of framing her for mur-
der. Thus, the appellee argues, Rossum’s attorneys could rea-
sonably have decided not to waste their time and resources
pursuing a theory of intentional contamination. Again, this
argument fails to consider the possibility of unintentional con-
tamination. More importantly, however, it ignores the fact
that a contamination defense was the best—and perhaps the
9
Robertson appears to have had a special interest and expertise in fenta-
nyl. Russ Lowe testified that he discovered approximately thirty-seven
articles on fentanyl while cleaning out Robertson’s office after his depar-
ture from the OME. If Robertson’s interest in fentanyl was widely known,
then contaminating de Villers’s samples with fentanyl might have seemed
like an effective way of implicating Robertson in de Villers’s death.
16136 ROSSUM v. PATRICK
only viable—defense available to Rossum. Cf. Gomez v. Beto,
462 F.2d 596, 597 (5th Cir. 1972) (“When a defense counsel
fails to investigate his client’s only possible defense, although
requested to do so by him; and fails to subpoena witnesses in
support of the defense, it can hardly be said that the defendant
has had the effective assistance of counsel.”). A competent
attorney would have been extremely reluctant to concede that
fentanyl caused de Villers’s death because the concession
would essentially doom the defense’s theory that de Villers
committed suicide.
[7] While there were significant holes in the prosecution’s
theory that Rossum murdered de Villers with fentanyl, the
defense’s suicide-by-fentanyl theory was even more implausi-
ble. The medical and toxicological evidence suggested that de
Villers could only have died from an overdose of fentanyl if
he was administered the drug on multiple occasions through-
out the day. If de Villers self-administered a large, single dose
of fentanyl, then he would have died too rapidly for the bron-
chopneumonia to develop in his lungs and for the large quan-
tity of urine to collect in his bladder. But de Villers could not
have voluntarily taken multiple doses of fentanyl over the
course of the day because in the last hours of his life, he was
too comatose even to breathe properly, much less self-
administer fentanyl.
A competent attorney would have recognized the defects in
a defense based on the theory that de Villers committed sui-
cide by taking fentanyl and thus would have thoroughly
investigated the possibility of contamination before conceding
that fentanyl caused de Villers’s death. Dr. Richeimer’s decla-
ration indicates that a toxicology lab could have definitively
determined whether de Villers’s samples were contaminated
by testing them for the presence of metabolites of fentanyl.10
10
Would a competent attorney have realized that de Villers’s samples
could be tested for contamination by analyzing them for the presence of
fentanyl metabolites? The appellee argues not. At oral argument, the
ROSSUM v. PATRICK 16137
Although the district court and the appellee note that the
absence of fentanyl metabolites would not have exonerated
Rossum because she could have killed de Villers with another
drug, it seems highly unlikely that a jury would have con-
victed Rossum if the defense were able to conclusively con-
tradict the prosecution’s theory that Rossum murdered de
Villers with fentanyl and show that de Villers’s autopsy speci-
mens were contaminated, either intentionally or through inad-
vertence. If, on the other hand, fentanyl metabolites were
found, the defense would have suffered no harm. Even if the
prosecution were somehow able to discover the test results,
but see Cal. Penal Code § 1054.3(a) (West 2002) (requiring
the defense to disclose the results of scientific tests to the
prosecution only if the defense intends to introduce the results
appellee directed our attention to the cross-examination of toxicologist
Michael Henson. Rossum’s attorney asked Henson, “Do you have any
way of knowing or testing to determine if any [of de Villers’s] samples . . .
has been tampered with or spiked by anybody?” Henson answered, “No.”
ER 305. If a trained toxicologist did not know that contamination could
be detected through a test for metabolites, the appellee asks, how could an
attorney, untrained in forensic science, be expected to have such knowl-
edge?
We could dismiss this argument, which the appellee raised for the first
time at oral argument, as waived. See Butler v. Curry, 528 F.3d 624, 642
(9th Cir. 2008). Nevertheless, we reject it on its merits. We refuse to
accord definitive weight to an answer given by a single prosecution wit-
ness during cross-examination. In any case, defense attorneys are obli-
gated to pursue lines of investigation that hold out the promise of proving
their clients’ innocence prior to deciding on a trial strategy. See Hart v.
Gomez, 174 F.3d 1067, 1070 (9th Cir. 1999). According to Dr. Richeimer,
many toxicology labs regularly test samples for metabolites. Thus, at least
on the record before us, it seems likely that if Rossum’s attorneys had con-
ducted an adequate pretrial investigation, they would have discovered that
de Villers’s specimens could be tested for contamination by analyzing
them for the presence of fentanyl metabolites. Indeed, if that were the
case, there would have been no need for them to ask the question on which
the appellee’s argument is founded. They would have known that a test for
contamination is available—the test for metabolites discussed in Dr.
Richeimer’s declaration.
16138 ROSSUM v. PATRICK
as evidence at trial), the defense would have been left to pur-
sue the very theory that Rossum’s attorneys argued at trial—
that de Villers committed suicide by taking fentanyl.
This leaves only the appellee’s argument that Rossum’s
attorneys could reasonably have decided not to pursue a con-
tamination theory so as not to contradict testimony that Ros-
sum provided at trial. However, this could not have been the
basis for their decision not to pursue a contamination theory,
as they had an obligation to investigate such a theory before
the trial, when there was no testimony to contradict. In any
event, this argument misconceives the relevance of a single
question and answer made during Rossum’s cross-
examination:
Q. So it is your testimony, then, that Greg de Vil-
lers voluntarily took fentanyl, clonazepam, and
oxycodone, correct?
A. As far as his death, yes.
Trial Tr. vol. 21, 2569.
Rossum’s answer amounted to no more than a restatement of
her defense: de Villers committed suicide by voluntarily tak-
ing whatever drugs were found in his system. Rossum was not
averring that she had firsthand knowledge that de Villers took
fentanyl, along with other drugs. In fact, her entire defense
was founded on the premise that she did not have such first-
hand knowledge because de Villers, not she, administered
whatever drugs caused his demise.
[8] Because the medical and toxicological evidence raised
serious questions about de Villers’s purported cause of death,
because an alternative cause of death was readily apparent,
and because there was a lapse in the chain of custody of de
Villers’s specimens, we conclude that a competent attorney
would not have pursued a suicide-by-fentanyl theory, with all
ROSSUM v. PATRICK 16139
its defects, without first having de Villers’s specimens tested
for the presence of fentanyl metabolites.11 On this record, Str-
ickland’s first prong therefore appears to be satisfied.12
B. Prejudice
To prevail in her ineffective assistance claim Rossum must
also demonstrate that she was prejudiced by her counsel’s
deficient performance. We are unable to determine from the
record before us whether Rossum was prejudiced by her attor-
neys’ deficient investigation, as that conclusion must ulti-
mately rest on whether or not de Villers’s autopsy samples
prove to contain fentanyl metabolites.
As noted above, the appellee argues that even if de Vil-
lers’s autopsy specimens do not contain metabolites of fenta-
nyl, such a finding would not exonerate Rossum because she
could have murdered de Villers by other means. This argu-
ment ignores both the weaknesses of the prosecution’s case
against Rossum and the impact that evidence of contamina-
tion would likely have had on the jury.
[9] The prosecution’s case was based entirely on circum-
stantial evidence. It primarily relied on the inferences that
11
Pointing to Dr. Richeimer’s declaration that many toxicology labs
commonly run tests for metabolites, the appellee speculates that de Vil-
lers’s autopsy specimens may already have been tested for the presence of
fentanyl metabolites. If metabolites of fentanyl were found by any of the
toxicology labs that analyzed de Villers’s specimens, the appellee bore the
burden of presenting this information to the district court. It would be
highly improper for us to assume, based merely on the appellee’s unsup-
ported speculation, that de Villers’s specimens were tested for the pres-
ence of fentanyl metabolites and that such tests were unfavorable to
Rossum.
12
We do not prohibit the state, however, from calling defense counsel
to testify, at the evidentiary hearing, should counsel choose to assert that
his failure to conduct a reasonable investigation regarding metabolites was
the result of some thus far undisclosed reason, strategic or other.
16140 ROSSUM v. PATRICK
could be drawn from (1) the medical and toxicological evi-
dence; (2) the lack of other plausible suspects; (3) Rossum’s
apparent motive to kill de Villers to stop him from disclosing
her affair and drug use; and (4) her access to the drugs found
in his body.
[10] If the defense had tested de Villers’s autopsy speci-
mens and found no fentanyl metabolites, it could have defini-
tively refuted the prosecution’s theory of the case—that
Rossum murdered de Villers with an overdose of fentanyl.
And, given the evidence, the prosecution would have had an
extremely difficult time convincing the jury that Rossum
instead committed the murder with different drugs. At trial,
the prosecution downplayed the significance of the oxyco-
done and clonazepam found in de Villers’s specimens, noting
that the concentrations of these drugs were not at lethal levels.
Furthermore, if jurors learned that de Villers’s autopsy sam-
ples had been contaminated, either intentionally or by acci-
dent, they could well have viewed all of the prosecution’s
evidence more skeptically.
[11] Thus, whether or not Rossum was prejudiced by her
counsel’s deficient performance is a question that ultimately
turns on whether fentanyl metabolites are present in de Vil-
lers’s autopsy samples, a question that cannot be answered
based upon the current record.
III. Remand for Further Proceedings
[12] We thus remand for the district court to hold an evi-
dentiary hearing. Rossum is not barred from obtaining an evi-
dentiary hearing by 28 U.S.C. § 2254(e)(2) because she did
not “fail[ ] to develop the factual basis of [her] claim” before
the California state courts. Although Rossum requested an
evidentiary hearing before the California Supreme Court, the
court summarily denied her habeas petition without ordering
such a hearing. As we have previously held, a district court
evidentiary hearing is not barred if a habeas petitioner made
ROSSUM v. PATRICK 16141
“a reasonable attempt, in light of the information available at
the time, to investigate and pursue claims in state court, [by]
at a minimum seek[ing] an evidentiary hearing in state court
in the manner prescribed by state law.” West v. Ryan, 608
F.3d 477, 484-85 (9th Cir. 2010).
A habeas petitioner not barred from receiving an evidenti-
ary hearing by section 2254(e)(2) is entitled to such a hearing
if she (1) alleges facts that, if proven, would entitle her to
relief, and (2) shows that she did not receive a full and fair
hearing in state court. Alberni v. McDaniel, 458 F.3d 860, 873
(9th Cir. 2006); see also Insyxiengmay v. Morgan, 403 F.3d
657, 669-70 (9th Cir. 2005). If, as Rossum alleges, de Vil-
lers’s specimens were contaminated and her attorneys failed
to investigate that possibility, she would in all probability be
entitled to habeas relief on her claim of ineffective assistance
of counsel. And as explained above, the California Supreme
Court did not afford Rossum a full and fair hearing on this
contention since it summarily denied her state habeas petition.
As a result, Rossum is entitled to an evidentiary hearing on
her allegations of ineffective assistance of counsel and, in par-
ticular, her claim that she was prejudiced by her attorneys’
failure to conduct an investigation as to whether fentanyl was
the cause of de Villers’s death before conceding the critical
point to the prosecution.
[13] Under our holding in Jones v. Wood, 114 F. 3d 1002
(9th Cir. 1997), in conducting this evidentiary hearing the dis-
trict judge is obligated to allow Rossum to test de Villers’s
specimens for metabolites of fentanyl. The habeas petitioner
in Jones was convicted of murdering his wife. Id. at 1004. He
contended that his trial counsel performed deficiently by fail-
ing to order forensic testing that might have proved that the
blood found on the clothing he was wearing on the night of
the murder came from a cut on his own hand, rather than from
his wife as the prosecution contended. Id. at 1006-07. We
held that the district court abused its discretion by denying the
petitioner’s request to test the blood on the clothing to deter-
16142 ROSSUM v. PATRICK
mine whether it was his or his wife’s. Id. at 1009. Here, as in
Jones, “discovery is essential for [Rossum] to develop fully
[her] ineffective assistance of counsel claim” because the test-
ing she seeks “may establish the prejudice required to make
out such a claim.” Id.
CONCLUSION
For the foregoing reasons, we conclude that Rossum is enti-
tled to an evidentiary hearing on her claim that her trial coun-
sel rendered ineffective assistance under Strickland.
Accordingly, we REVERSE the district court’s denial of a
writ of habeas corpus and REMAND for further proceedings
consistent with this opinion.