Earp v. Cullen

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICKY LEE EARP, 

Petitioner-Appellant,

No. 08-99005

v.

VINCENT CULLEN,* Warden of  D.C. No.

2:00-CV-06508-R

California State Prison at San

OPINION

Quentin,

Respondent-Appellee.



Appeal from the United States District Court

for the Central District of California

Manuel L. Real, District Judge, Presiding

Argued and Submitted

March 22, 2010—San Francisco, California

Filed October 19, 2010

Before: Jerome Farris, Dorothy W. Nelson, and

Richard C. Tallman, Circuit Judges.

Opinion by Judge Tallman

*Vincent Cullen is substituted for his predecessor, Robert L. Ayers, Jr.,

as Warden of California State Prison at San Quentin. Fed. R. App. P.

43(c)(2).

17251

17256 EARP v. CULLEN

COUNSEL

Robert S. Gerstein (argued); Statia Peakheart and Dean R.

Gits, Office of the Federal Public Defender; Sean Kennedy,

Federal Public Defender, Los Angeles, California, for

petitioner-appellant Ricky Lee Earp.

James W. Bilderback, II (argued), Supervising Deputy Attor-

ney General; Keith H. Borjon, Supervising Deputy Attorney

General; Pamela C. Hamanaka, Senior Assistant Attorney

General; Dane R. Gillette, Chief Assistant Attorney General;

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

Angeles, California, for respondent-appellee Vincent Cullen.

EARP v. CULLEN 17257

OPINION

TALLMAN, Circuit Judge:

Petitioner-Appellant Ricky Lee Earp was sentenced to

death after a jury convicted him of first-degree murder for the

rape and murder of eighteen-month-old Amanda Doshier.1 We

affirmed in part but remanded in part Earp’s first appeal of the

denial of his petition for a writ of habeas corpus and

instructed the district court to conduct an evidentiary hearing

addressing two specific issues: (1) Earp’s allegations of pro-

secutorial misconduct relating to the testimony of witness

Michael Taylor; and (2) Earp’s claim of ineffective assistance

of counsel arising from a failure to sufficiently investigate

mitigation evidence. Earp v. Ornoski, 431 F.3d 1158, 1164

(9th Cir. 2005). After conducting numerous hearings, the dis-

trict court again denied the petition, but granted a certificate

of appealability on both claims. We affirm the denial of

Earp’s claim of ineffective assistance of counsel and reverse

and remand the denial of the prosecutorial misconduct claim.

I

A

In his petition for a writ of habeas corpus, Earp alleged that

the deputy district attorney, Robert Foltz, engaged in miscon-

duct by intimidating Michael Taylor, a witness who was

going to testify in support of Earp’s motion for a new trial.

Taylor initially averred that he overheard fellow inmate Den-

nis Morgan admit, while the two were incarcerated in Los

Angeles, to being at Earp’s home the day Amanda was

1

The facts and circumstances surrounding the crime are detailed in both

the California Supreme Court opinion resulting from Earp’s direct appeal,

People v. Earp, 978 P.2d 15 (Cal. 1999), and our opinion in Earp’s prior

appeal, Earp v. Ornoski, 431 F.3d 1158, 1165-66 (9th Cir. 2005). We

recite the facts again only as necessary to understand our opinion.

17258 EARP v. CULLEN

attacked. Taylor later recanted his original statement by

claiming that it was a lie, and that Earp offered to pay Taylor

if he would say that Morgan admitted to being present the day

the crime occurred. However, Taylor again changed his story.

This time, Taylor claimed that prosecutor Foltz and Edwin

Milkey, the investigating sheriff’s homicide detective,

coerced him into recanting his original statement, and he

affirmed his earlier statement about Morgan’s admission.

The district court originally found Taylor incredible on the

basis of his multiple declarations and denied Earp’s claim of

prosecutorial misconduct without conducting an evidentiary

hearing. We reversed the district court after concluding that

a question that turns on the “veracity of the witnesses . . .

could not be adjudicated without an evidentiary hearing.”

Earp, 431 F.3d at 1170. In analyzing both whether Earp had

a full and fair opportunity to develop his claim and whether

he presented a colorable claim, we emphasized the impor-

tance of conducting an evidentiary hearing before making the

requisite credibility determinations. Id. at 1169-72. We

remanded to allow Earp “an opportunity to prove the facts

supporting his claim.” Id. at 1172.

On remand, Taylor, Foltz, and Milkey testified. Taylor tes-

tified that Foltz and three police officers met with him to dis-

cuss his original declaration and coerced him into recanting.

Taylor claimed that Foltz threatened him and that Foltz

directed Taylor on how to respond to certain questions.

Finally, Taylor reaffirmed the statements he made in his origi-

nal declaration. Foltz stated that he conducted an interview

with Taylor after receiving Taylor’s original statement claim-

ing he overheard Dennis Morgan admit to being present at

Earp’s home. Foltz testified that Taylor voluntarily recanted

his statement after learning that he would have to testify in

court. Foltz maintained that neither he nor Milkey instructed

Taylor on how to answer questions. They also did not threaten

Taylor in any manner during any part of the interview. Milkey

corroborated Foltz’s testimony. He testified that Taylor

EARP v. CULLEN 17259

became nervous after learning that he would have to testify

regarding his statement, and that Taylor was not coached on

how to answer questions posed during the interview. Milkey

denied all allegations that he or Foltz threatened or intimi-

dated Taylor.

In an effort to bolster the credibility of Taylor, Earp sought

to introduce the testimony of Cindy Doshier, the victim’s

mother, at the evidentiary hearing. According to Earp,

Doshier was prepared to testify that she too was intimidated

by Foltz after she testified in support of the defense at trial.

The district court allowed Earp to call Doshier as a witness,

but then appointed separate counsel to advise Doshier of her

rights under the Fifth Amendment. Doshier subsequently

invoked her Fifth Amendment right against self-

incrimination, and the district court accepted her invocation

on a blanket basis.

In its order denying Earp’s petition, the district court

expressly rejected Taylor’s testimony as incredible, and found

Foltz and Milkey to be credible witnesses independent of all

other testimony received. Consequently, the district court

denied Earp’s allegation of prosecutorial misconduct. Earp

now challenges the exclusion of Doshier’s testimony, assert-

ing that he was deprived of a full and fair opportunity to prove

his claim due to the district court’s improper acceptance of

Doshier’s invocation of her rights under the Fifth Amend-

ment.

B

[1] We conduct de novo review of challenges to the invo-

cation of the Fifth Amendment. United States v. Antelope, 395

F.3d 1128, 1133 (9th Cir. 2005). The Fifth Amendment states

that “[n]o person . . . shall be compelled in any criminal case

to be a witness against himself.” U.S. Const. amend. V. In

order to properly claim the protections against self-

incrimination, a witness must show that his testimony would

17260 EARP v. CULLEN

“support a conviction under a federal criminal statute . . . [or]

would furnish a link in the chain of evidence needed to prose-

cute the claimant for a federal crime.” Hoffman v. United

States, 341 U.S. 479, 486 (1951). A witness justifiably claims

the privilege if he is “confronted by substantial and real, and

not merely trifling or imaginary, hazards of incrimination.”

United States v. Apfelbaum, 445 U.S. 115, 128 (1980) (inter-

nal quotation marks and citations omitted).

[2] While the Fifth Amendment protects witnesses from

incriminating themselves on the basis of past conduct, it “pro-

vides no protection for the commission of perjury.” Id. at 127;

Glickstein v. United States, 222 U.S. 139, 142 (1911) (“[I]t is

also true that the immunity afforded by the constitutional

guaranty relates to the past, and does not endow the person

who testifies with a license to commit perjury.”). There is “no

doctrine of ‘anticipatory perjury,’ ” and a “future intention to

commit perjury” does not create a sufficient hazard of self-

incrimination to implicate the Fifth Amendment privilege.

Apfelbaum, 445 U.S. at 131.

[3] We applied this principle in United States v. Vavages,

151 F.3d 1185, 1192 (9th Cir. 1998), and held that the district

court erred in recognizing a witness’s invocation of the Fifth

Amendment when the basis for the invocation was the wit-

ness’s fear that the testimony about to be given “would sub-

ject her to a perjury prosecution.” When a witness has not yet

testified, “[t]he shield against self-incrimination . . . is to tes-

tify truthfully, not to refuse to testify on the basis that the wit-

ness may be prosecuted for a lie not yet told.” Id. (quoting

United States v. Whittington, 783 F.2d 1210, 1218 (5th Cir.

1986)). A blanket invocation of the Fifth Amendment in such

circumstances is not acceptable because there is no “valid

basis” for the assertion. Id.

[4] This case is indistinguishable from Vavages. The dis-

trict court permitted Doshier to anticipatorily claim the Fifth

Amendment privilege because it believed that she was going

EARP v. CULLEN 17261

to testify untruthfully. Supreme Court and Ninth Circuit pre-

cedent clearly preclude pre-emptive invocations of the privi-

lege. The district court erred by accepting Doshier’s assertion

of the Fifth Amendment.

[5] Nonetheless, the State contends that Doshier properly

asserted her Fifth Amendment privilege because she faced a

substantial and real hazard of incrimination. According to the

State, the testimony Doshier planned to give at the evidentiary

hearing could have established that a declaration she com-

pleted in 1997 was perjurious. “Fear of a perjury prosecution

can typically form a valid basis for invoking the Fifth Amend-

ment . . . where the risk of prosecution is for perjury in the

witness’ past testimony.” Vavages, 151 F.3d at 1192 n.3. This

argument is not persuasive, however, because the district

court did not rely on Doshier’s past testimony as the basis for

her Fifth Amendment privilege. It is the district court’s duty

to determine the basis for a witness’s assertion of the Fifth

Amendment privilege. Hoffman, 341 U.S. at 486 (“It is for the

court to say whether [a witness’s] silence is justified, and to

require him to answer if ‘it clearly appears to the court that

he is mistaken.’ ” (citations omitted)). The district court

allowed Doshier to invoke the Fifth Amendment because her

proposed testimony would expose her to the possibility of

prosecution; it believed she would commit perjury if allowed

to testify. The district court did not focus on Doshier’s poten-

tial liability for statements made in her earlier declaration.

Because a witness cannot validly assert her Fifth Amendment

rights upon a fear that she is about to commit perjury, there

was no viable basis for the district court’s acceptance of

Doshier’s invocation.

Moreover, there was no substantial risk that Doshier would

be prosecuted for perjury on the basis of her 1997 declaration

due to the federal and state statutes of limitation. Under fed-

eral law, a person may not be prosecuted for perjury more

than five years after the offense. 18 U.S.C. § 3282(a). Califor-

nia law imposes a limitation of three years. Cal. Penal Code

17262 EARP v. CULLEN

§§ 126, 801, 803. Doshier’s trial testimony occurred sixteen

years before the evidentiary hearing, and she completed her

declaration ten years prior to the hearing. The relevant statutes

of limitation had long since expired.

[6] Our initial remand of this case was for the purpose of

allowing Earp an opportunity to develop facts in support of

his claim of prosecutorial misconduct. The district court

deprived Earp of a full and fair hearing because it erroneously

accepted Doshier’s invocation of the Fifth Amendment. Thus,

we remand this claim for another evidentiary hearing at which

Earp should be afforded a full and fair opportunity to develop

the facts supporting his allegations. At the evidentiary hear-

ing, the district court is free to control the admission or exclu-

sion of evidence by exercising its discretion under the Federal

Rules of Evidence, specifically Rules 404(b) and 608. Our

decision to remand Earp’s prosecutorial misconduct claim is

based solely on the district court’s erroneous acceptance of

Doshier’s invocation of the Fifth Amendment, and this opin-

ion should not be interpreted as a comment on the merits of

his claim.

C

[7] In his opening brief, Earp requested that, upon remand,

we reassign the case to a different judge. In the absence of

personal bias, we assign a case to a new judge on remand only

in “unusual circumstances.” United States v. Sears, Roebuck

& Co., Inc., 785 F.2d 777, 780 (9th Cir. 1986). To make a

determination that unusual circumstances exist, we consider

whether: (1) “the original judge would reasonably be expected

upon remand to have substantial difficulty in putting out of

his or her mind previously-expressed views or findings deter-

mined to be erroneous or based on evidence that must be

rejected”; (2) “reassignment is advisable to preserve the

appearance of justice”; and (3) “reassignment would entail

waste and duplication out of proportion to any gain in pre-

EARP v. CULLEN 17263

serving the appearance of fairness.” Id. (quoting United States

v. Arnett, 628 F.2d 1162, 1165 (9th Cir. 1979)).

[8] We regrettably conclude that the circumstances of this

case warrant reassignment. In its order, the district judge

made explicit credibility findings—it found Taylor incredible

and Foltz and Milkey credible. On remand, we cannot reason-

ably expect the district judge to set aside these credibility

findings and reassess the viability of Earp’s claim of prosecu-

torial misconduct in light of Doshier’s testimony. Addition-

ally, during the pendency of the original proceedings on

remand, we had to intervene and enter an emergency stay in

response to the district judge’s refusal to continue the eviden-

tiary hearing in order to allow Earp and the California Depart-

ment of Corrections time to locate and transport inmate

Taylor to Los Angeles to testify. At the next hearing, the dis-

trict judge was very critical of the request for a stay, notwith-

standing the importance our remand order placed on assessing

Taylor’s accusation. Under these circumstances, reassignment

is necessary to uphold the appearance of justice.

A finding of only one of the first two factors identified in

Arnett supports reassignment on remand. Sears, 785 F.2d at

780. Not only do the first two factors weigh in favor of reas-

signment, but doing so would not result in an undue waste of

judicial resources. To this point, the district judge has facili-

tated the whittling of Earp’s federal habeas claims from nine-

teen to two. It will not take a different district judge much

time to become acquainted with the facts underlying Earp’s

claim of prosecutorial misconduct—the only issue that will

need to be addressed on remand. We express no opinion on

the ultimate credibility determination. The district court is

free to conduct such proceedings and rule however the credi-

ble evidence warrants.

17264 EARP v. CULLEN

II

A

[9] In his petition for a writ of habeas corpus, Earp also

asserted a claim of ineffective assistance of counsel. Specifi-

cally, he alleged that trial counsel neglected to conduct suffi-

cient investigation into potential mitigating evidence. Had

sufficient investigation occurred, Earp argued that trial coun-

sel would have uncovered school records indicating emotional

and psychological problems, additional information about

Earp’s familial background—including a history of substance

abuse and mental health problems—and significant mental

health evaluations evincing organic brain damage. Earp, 431

F.3d at 1172.

[10] At an evidentiary hearing held by the district court,

Earp presented numerous witnesses in support of his claim of

ineffective assistance of counsel. Adrienne Dell, Earp’s coun-

sel for the penalty phase of trial and later his wife, testified

on direct examination that she did minimal investigation and

did not personally interview the witnesses presented at the

penalty phase. She claimed that she did not inquire into

Earp’s history of drug abuse, nor did she investigate his men-

tal health or request a neuropsychological exam. However, on

cross-examination, she equivocated when confronted with her

own billing records indicating several conferences with her

co-counsel, investigator, and others regarding penalty phase

matters, and she admitted that Earp had been evaluated by

two psychologists. In fact, she acknowledged receiving one

psychologist’s conclusion that Earp “fit the profile of being a

child molester.” She also acknowledged that “several” investi-

gators were retained to assist with both the guilt phase and the

penalty phase of Earp’s trial. Dell identified notes she

received prior to Earp’s trial stating that there were no indica-

tors of organic brain damage, and admitted that she probably

would have presented evidence of organic brain damage if the

evidence had indicated Earp had any such damage.

EARP v. CULLEN 17265

Earp also elicited the testimony of a social worker for the

California Youth Authority (“CYA”) who had compiled a

report on Earp containing psychiatric and psychological eval-

uations, medical and dental reports, a social history, and eval-

uations of Earp’s interactions within his CYA living unit. He

presented three childhood acquaintances, who all testified

about Earp’s drug and alcohol abuse during his teenage years.

Earp’s brother and sister testified about Earp’s childhood and

his relationships with his father, mother, and stepfather.

[11] During the evidentiary hearing, Earp sought to intro-

duce the testimony of Dr. Inez Monguio, a neuropsychologist

who evaluated Earp in 2002 to determine whether he had

organic brain damage. She testified that had she examined

Earp in 1991, she would have reached the same conclusions

as she did in 2002, and that the tests she utilized during her

evaluation were either available in 1991 or had comparable

counterparts at that time. On cross-examination, Dr. Monguio

stated that she did not confer with any of the mental health

professionals who had evaluated Earp at the time of his trial.

She also admitted that she could not reliably opine on Earp’s

mental state at the time of the crime. After that admission, the

State moved to strike Dr. Monguio’s testimony. The district

court granted the motion to strike, concluding that Dr.

Monguio’s testimony was not helpful because, in 2002, she

could not determine whether Earp had organic brain damage

at the time of his trial in 1991.

[12] Earp’s final witness at the evidentiary hearing was

Ezekiel Perlo, an experienced capital case attorney licensed to

practice in California. The State objected to Perlo’s testimony

on the basis that the purpose of the testimony was to opine

regarding the effectiveness of Earp’s trial counsel—a legal

conclusion to be made by the district court. The district court

allowed Perlo to testify regarding what trial counsel should

have done, but excluded his ultimate legal opinion pertaining

to the adequacy of Earp’s trial counsel’s performance.

Accordingly, Perlo testified about the applicable standards of

17266 EARP v. CULLEN

attorney competence in 1991. Specifically, he stated that trial

counsel should develop evidence if there is an indication of

drug abuse or mental health problems, but he also acknowl-

edged that there is an end to the duty to investigate.

In response, the State presented the testimony of investiga-

tor Sheryl Duvall, a member of Earp’s defense team who had

been responsible for discovering mitigation evidence, and two

attorneys assigned to Earp’s case before Dell was appointed.

The defense investigator reported that the extensive pre-trial

inquiry she conducted produced psychological and psychiatric

reports, probation records, and prison records. Duvall also

met with Earp, his mother, his sister, his brother, his stepfa-

ther, his aunt, and his cousin. Duvall spoke with Earp’s for-

mer teachers, former partners, and employees at the CYA.

Louis Bernstein, lead defense counsel during the guilt

phase of Earp’s trial, testified that Earp’s lack of candor

impeded attempts to uncover additional mitigation evidence.

He stated that he and Dell worked together and offered advice

and assistance to one another. Marcia Morrissey, the attorney

originally assigned to the penalty phase of Earp’s trial, veri-

fied that she obtained pre-trial psychological reports from

Earp’s childhood, and she identified records of meetings she

held with two mental health experts regarding potential miti-

gating evidence. Morrissey testified that she transferred

everything to Dell at the time she ceased working on the case,

and recalled telling Dell that more investigation needed to be

done to obtain a “coherent picture” of Earp.

After receiving all of this evidence, the district court found

that Earp did not satisfy his burden of proof “as to either defi-

cient performance or resulting prejudice.” It discredited the

testimony of Adrienne Dell because her testimony was

“vague, inconsistent, and subject to lapses of memory in sig-

nificant areas.” Additionally, Dell’s testimony contradicted

her own contemporaneous records and notes and was incon-

sistent with other testimony. The district court also rejected

EARP v. CULLEN 17267

the testimony of the social worker, Earp’s childhood friends,

and his family as being cumulative, unpersuasive, and biased.

The court discussed Dr. Monguio’s testimony, and reaffirmed

its decision to strike it. Finally, the district court stated that

Perlo’s testimony was not “particularly illuminative or use-

ful.”

[13] Earp now challenges the district court’s limitation of

Perlo’s testimony and its decision to strike Dr. Monguio’s tes-

timony. Similar to his argument regarding the prosecutorial

misconduct allegation, Earp claims that the district court’s

evidentiary rulings deprived him of a full and fair opportunity

to present his claim of ineffective assistance of counsel. Earp

also contends that the district court erred in denying his inef-

fective assistance of counsel claim on the merits.

B

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

grant habeas relief. Lambert v. Blodgett, 393 F.3d 943, 964

(9th Cir. 2004). The Anti-Terrorism and Effective Death Pen-

alty Act governs our review of Earp’s petition because it was

filed after April 24, 1996. Woodford v. Garceau, 538 U.S.

202, 210 (2003). Because there is no reasoned state court

decision addressing the merits of Earp’s ineffective assistance

of counsel claim, we conduct an independent review of the

record and determine whether the state court’s decision was

objectively unreasonable. Richter v. Hickman, 578 F.3d 944,

951 (9th Cir. 2009) (en banc).

Ineffective assistance of counsel claims are governed by the

two-prong analysis pronounced in Strickland v. Washington,

466 U.S. 668 (1984). First, a claimant must “show that coun-

sel’s performance was deficient.” Id. at 687. Counsel renders

deficient performance when representation falls “below an

objective standard of reasonableness.” Id. at 688. We conduct

a “highly deferential” review of counsel’s conduct because “it

is all too easy for a court, examining counsel’s defense after

17268 EARP v. CULLEN

it has proved unsuccessful, to conclude that a particular act or

omission of counsel was unreasonable.” Id. at 689. Therefore,

“a court must indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional

assistance.” Id.

If a claimant establishes that counsel’s performance was

deficient, he must then show that the deficiencies were

prejudicial—“that they actually had an adverse effect on the

defense.” Id. at 692-93. Prejudice occurs when “there is a rea-

sonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been differ-

ent.” Id. at 694; Rhoades v. Henry, 611 F.3d 1133, 1141 (9th

Cir. 2010).

Earp premises his claim of ineffective assistance of counsel

on two deficiencies: (1) inadequate investigation of organic

brain damage; and (2) inadequate investigation of Earp’s

background. The district court denied Earp’s claim, finding

that he failed to show that either allegation constituted defi-

cient performance or that either alleged deficiency caused

prejudice. Specifically, the district court found that “counsel

made adequate investigation into [Earp’s] background and

family history and that counsel did not curtail required inves-

tigation into possible emotional, psychological or neurologi-

cal problems stemming from early childhood, any possible

organic brain damage, or the mitigating possibility of youthful

drug abuse.” Furthermore, it concluded that there was nothing

in the record that indicated that Earp was “prejudiced by any

purported deficiency of counsel.” We need not address

whether Earp was prejudiced by trial counsel’s performance

because we conclude that trial counsel’s performance was not

deficient. See Hein v. Sullivan, 601 F.3d 897, 918 (9th Cir.

2010) (“[W]e may dispose of [the ineffective assistance of

counsel] claim if [the claimant] fails to satisfy either prong of

the two-part test.”).

EARP v. CULLEN 17269

1

Before reaching the merits of Earp’s claim of ineffective

assistance of counsel, we address his challenge to the district

court’s decision to limit the testimony of Perlo. We review a

district court’s decision to admit or exclude expert testimony

for an abuse of discretion. United States v. W.R. Grace, 504

F.3d 745, 759 (9th Cir. 2007). At the evidentiary hearing, the

district court precluded Perlo from opining on Earp’s trial

counsel’s performance and repeatedly admonished Earp that

such questions were improper. The district court did, how-

ever, permit Earp to question Perlo regarding what competent

trial counsel in a death penalty case should have done in 1991.

Expert testimony is not necessary to determine claims of

ineffective assistance of counsel. Hovey v. Ayers, 458 F.3d

892, 910 (9th Cir. 2006). When determining whether to admit

expert testimony, the district court must consider the proba-

tive value of the testimony—a consideration that hinges on

the court’s ability to “assess the issues.” Id. at 911. Because

a district court is “qualified to understand the legal analysis

required by Strickland,” it does not abuse its discretion in

excluding expert testimony relating to that analysis. Id.

[14] The aspects of Perlo’s testimony that were excluded

by the district court in this case impacted only the determina-

tion of whether Earp’s trial counsel satisfied the appropriate

standard of care. It was not an abuse of discretion for the dis-

trict court to prevent Perlo from testifying regarding this ulti-

mate legal conclusion because it was a determination the

district court was qualified to make.

2

Earp alleges that he received ineffective assistance of coun-

sel at the penalty phase of his trial due to his counsel’s failure

to investigate whether he suffered from organic brain damage.

In support of his claim, Earp elicited the testimony of his pen-

17270 EARP v. CULLEN

alty phase counsel, Dell. She stated that she neither investi-

gated Earp’s mental state nor requested a neuropsychological

evaluation. However, she did acknowledge that two psycholo-

gists and a psychiatrist evaluated Earp. Dell also confirmed

that she reviewed notes from Marcia Morrissey, the attorney

originally assigned to the penalty phase of Earp’s trial, which

stated that there were no indications of organic brain damage.

Finally, Dell admitted that she wrote a letter during prepara-

tion for Earp’s trial explicitly stating that the medical records

contained no information suggesting that Earp had organic

brain damage.

Earp also relied on the testimony of neuropsychologist Dr.

Inez Monguio.2 In her report and deposition testimony, Dr.

Monguio concluded that Earp had deficits in processing speed

and working memory that were consistent with organic brain

damage. The testing also revealed that Earp experienced diffi-

culty with verbal and visual functions, which indicated prob-

lems in the anterior areas of both the left and right

hemispheres of the brain. Dr. Monguio summarized her find-

ings as “consistent with organic damaged [sic] by traumatic

brain injury.”

[15] Notwithstanding Dr. Monguio’s conclusions that Earp

had organic brain damage that was diagnosable in 1991 and

Dell’s statements that she did not investigate the possibility of

organic brain damage, we conclude that Earp has not estab-

lished that his trial counsel was deficient for failing to investi-

gate this potential mitigating evidence. Earp contends that

because Dr. Monguio’s 2002 report clearly establishes that he

had organic brain damage at the time of his trial in 1991, his

2

Earp argues that the district court abused its discretion when it struck

Dr. Monguio’s testimony. For purposes of resolving Earp’s appeal, we

assume that Dr. Monguio was qualified to testify as an expert and that the

district court improperly excluded her testimony. Therefore, we accept the

conclusions outlined in her comprehensive report and deposition testi-

mony.

EARP v. CULLEN 17271

trial counsel was ineffective for failing to discover and pres-

ent this mitigating evidence. The record belies Earp’s allega-

tions of insufficient investigation of organic brain damage.

[16] When there is no “objective indication” that a defen-

dant has a mental illness or brain damage, we cannot label

counsel “ineffective for failing to pursue this avenue of miti-

gation.” Gonzales v. Knowles, 515 F.3d 1006, 1015 (9th Cir.

2008). Dell’s testimony, in combination with the records cre-

ated at the time of the penalty phase of Earp’s trial, establish

that Earp’s defense counsel was pursuing the possibility of

organic brain damage—there was just no evidence to support

that theory. Rather, one psychologist concluded that Earp was

a sociopath and that he had a higher probability than the aver-

age person to be a child molester. We cannot fault trial coun-

sel for failing to further investigate potential mitigating

evidence of organic brain damage when the thorough defense

investigation, that explicitly pursued the possibility of organic

brain damage, uncovered no helpful information.

[17] Furthermore, Dr. Monguio’s contradictory diagnosis

of organic brain damage, received eleven years after Earp’s

trial, is insufficient to overcome the contemporaneous docu-

mentation that indicated that Earp did not have organic brain

damage. See Boyde v. Brown, 404 F.3d 1159, 1166-67 (9th

Cir. 2005) (rejecting a retrospective competency determina-

tion in favor of contemporaneous evidence that showed the

defendant was competent to stand trial); id. at 1167 (holding

that defendant could not establish that his trial counsel was

ineffective for failing to request a competency hearing when

all of the contemporaneous evidence supported the conclusion

that the defendant was competent). The fact that Earp can

now present a neuropsychologist who is willing to opine that

he had organic brain damage at the time of his trial does not

impact the ultimate determination of whether Earp’s trial

counsel insufficiently investigated that possibility.

The pertinent question is whether Earp’s counsel pursued

the possibility that Earp had organic brain damage—it indis-

17272 EARP v. CULLEN

putably did, but to no avail. Even if the mental health profes-

sionals who evaluated Earp at the time of his trial incorrectly

concluded that Earp did not have organic brain damage,

Earp’s claim fails. An expert’s failure to diagnose a mental

condition does not constitute ineffective assistance of counsel,

and Earp has no constitutional guarantee of effective assis-

tance of experts.

[18] We agree with the district court’s finding that “the

possibility of brain damage was carefully considered before

being excluded.” We reject Earp’s claim of ineffective assis-

tance of counsel for failing to investigate organic brain dam-

age due to his inability to show that his trial counsel rendered

deficient performance.

3

Earp next contends that trial counsel violated professional

norms by failing to adequately investigate Earp’s familial

background, childhood, and social history. Specifically, Earp

argues that trial counsel should have contacted three child-

hood friends and a CYA social worker. At the evidentiary

hearing, Earp’s childhood friends testified that Earp began

using drugs in seventh or eighth grade. Earp asserts that the

evidence of his extensive drug use as a teenager would have

“humanized” him and reinforced any references to the possi-

bility of organic brain damage. He claims further that had trial

counsel contacted the CYA social worker, her report would

have led to additional mitigation evidence and could have

revealed another strategy for conducting the penalty phase of

Earp’s trial.

[19] The fact that Earp now presents additional witnesses

who were not contacted prior to the penalty phase of Earp’s

trial does not compel a finding that trial counsel rendered

ineffective assistance. The Supreme Court recently reaffirmed

the proposition that we cannot fault trial counsel for failing to

find more mitigating evidence if trial counsel reasonably

EARP v. CULLEN 17273

believed that further investigation would produce only cumu-

lative evidence. Bobby v. Van Hook, 130 S. Ct. 13, 19 (2009).

Indeed, requiring additional research in such instances could

have potentially negative implications because it would dis-

tract trial counsel from performing more important responsi-

bilities. See id.

[20] Although Earp presented four witnesses not contacted

before the penalty phase of his trial, we cannot agree that trial

counsel inadequately investigated his familial background,

childhood, and social history. The defense investigator hired

by Earp’s trial counsel conducted extensive research and field

work. She interviewed Earp numerous times, met with his

childhood friend, David Callenchini, interviewed his immedi-

ate and extended family, and spoke with his former teachers

and juvenile probation officers. Additionally, she obtained

records from Earp’s prior psychiatric hospitalization, previous

psychological examinations, medical examinations, and a psy-

chological evaluation conducted after Earp’s father died. She

even pursued Earp’s father’s mental health records. The

investigator also acquired Earp’s school and juvenile proba-

tion records. It is evident that Earp’s defense team was vigi-

lant in its investigation of his past notwithstanding the

difficulties caused by Earp’s lack of honesty with his lawyers.

[21] “[S]trategic choices made after thorough investigation

of law and facts relevant to plausible options are virtually

unchallengeable.” Strickland, 466 U.S. at 690. Trial counsel’s

failure to contact the four witnesses Earp now presents does

not violate objective standards. “This is not a case in which

the defendant’s attorneys failed to act while potentially pow-

erful mitigating evidence stared them in the face, or would

have been apparent from documents any reasonable attorney

would have obtained.” Bobby, 130 S. Ct. at 19 (internal cita-

tions omitted). In fact, there is no evidence in the record that

trial counsel knew, or should have known, of Earp’s relation-

ship with these four witnesses. Consistent with Perlo’s testi-

mony regarding what competent capital counsel should

17274 EARP v. CULLEN

investigate, Earp’s trial counsel obtained school records,

prison records, CYA records, and doctors’ records, in addition

to speaking with Earp’s family and his former teachers.

Earp’s penalty phase counsel conducted sufficient investiga-

tion into Earp’s social history in an effort to uncover potential

mitigating evidence.

III

The district court erred when it allowed Cindy Doshier to

invoke her Fifth Amendment right against self-incrimination.

This error deprived Earp of a full and fair opportunity to pres-

ent his claim of prosecutorial misconduct. Therefore, we

REVERSE the district court’s denial of this claim, REMAND

for a full and fair evidentiary hearing on only the prosecu-

torial misconduct claim, and instruct that this case be reas-

signed to another district judge on remand. We further hold

that Earp has not shown in any respect that his trial counsel’s

performance was deficient. We thus AFFIRM the district

court’s denial of Earp’s claim of ineffective assistance of

counsel.

AFFIRMED in part; REVERSED and REMANDED in

part. Each party shall bear its own costs.