Crittenden v. Ayers

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVEN EDWARD CRITTENDEN,  No. 05-99006

Petitioner-Appellant, D.C. Nos.

v. CV-97-00602-

FCD/GGH

ROBERT L. AYERS,* CV-95-01957-FCD

Respondent-Appellee.

ORDER

AMENDING

 OPINION AND

DENYING

PETITIONS FOR

REHEARING AND

PETITION FOR

REHEARING EN

BANC AND

AMENDED

 OPINION

Appeal from the United States District Court

for the Eastern District of California

Frank C. Damrell, District Judge, Presiding

Argued and Submitted

December 13, 2007—Pasadena, California

Submission Withdrawn March 1, 2010

Resubmitted August 13, 2010

Filed August 20, 2010

Amended November 2, 2010

*Robert L. Ayers, the current custodian, is substituted for Steven W.

Ornoski as Warden of the California State Prison at San Quentin, pursuant

to Fed. R. App. P. 43(c)(2).

18073

18074 CRITTENDEN v. AYERS

Before: Jerome Farris, Raymond C. Fisher and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Fisher

18078 CRITTENDEN v. AYERS

COUNSEL

Mark Goldrosen (argued), San Francisco, California, and

Michael L. Spiegel (argued), New York, New York, for the

petitioner-appellant.

CRITTENDEN v. AYERS 18079

Edmund G. Brown, Jr., Attorney General of the State of Cali-

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

Michael P. Farrell, Senior Assistant Attorney General, Ward

A. Campbell, Supervising Deputy Attorney General, Jesse N.

Witt, Deputy Attorney General, and Eric L. Christoffersen

(argued), Deputy Attorney General, for the respondent-

appellee.

ORDER

The opinion filed on August 20, 2010, slip op. 12331, and

appearing at 2010 WL 3274506, is amended as follows:

In Section I.C.1 of the opinion, at slip op. 12351, 2010 WL

3274506, at *8, the first paragraph, which states:

Under Batson’s first step, the defendant must estab-

lish a prima facie case of purposeful discrimination.

See Batson, 476 U.S. at 93-94. He must show that

(1) he is a member of a “cognizable racial group,”

(2) the prosecutor used a peremptory strike to

remove a juror of defendant’s race and (3) the total-

ity of the circumstances raises an inference that the

strike was on account of race. Id. at 96; see Johnson,

545 U.S. at 169; Boyd v. Newland, 467 F.3d 1139,

1143 (9th Cir. 2006). The first and second elements

of the test are met here, because Crittenden and the

prospective juror are African-American and the pros-

ecutor used a peremptory strike to remove the pro-

spective juror. Thus, only the third element of the

prima facie case is at issue — whether the California

state court erred in failing to recognize that the total-

ity of the circumstances raised an inference of racial

motivation.

shall be deleted and replaced with the following paragraph:

18080 CRITTENDEN v. AYERS

Under Batson’s first step, the defendant must estab-

lish a prima facie case of purposeful discrimination.

See Batson, 476 U.S. at 93-94. He must show that

(1) the prospective juror is a member of a “cogniza-

ble racial group,” (2) the prosecutor used a peremp-

tory strike to remove the juror and (3) the totality of

the circumstances raises an inference that the strike

was on account of race. Id. at 96; see Johnson, 545

U.S. at 169; Boyd v. Newland, 467 F.3d 1139, 1143

(9th Cir. 2006). The first and second elements of the

test are met here, because the prospective juror is

African-American and the prosecutor used a peremp-

tory strike to remove the prospective juror. Thus,

only the third element of the prima facie case is at

issue — whether the California state court erred in

failing to recognize that the totality of the circum-

stances raised an inference of racial motivation.

In Section II.A of the opinion, at slip op. 12360, 2010 WL

3274506, at *12, the second paragraph, which states:

A “postcard” denial by the California Supreme Court

is a denial on the merits. See Harris v. Superior

Court, 500 F.2d 1124, 1128 (9th Cir. 1974) (en

banc); see also Chambers v. McDaniel, 549 F.3d

1191, 1197 (9th Cir. 2008) (“[U]nless a court

expressly (not implicitly) states that it is relying

upon a procedural bar, we must construe an ambigu-

ous state court response as acting on the merits of a

claim, if such a construction is plausible.”). The first

sentence of the California Supreme Court’s order

thus constitutes an adjudication on the merits of Crit-

tenden’s state habeas petition — necessarily includ-

ing all aspects of his IAC claim — in its entirety.

The second sentence elaborates the court’s rationale

for denying Crittenden’s subclaims relating to

alleged deficiencies in trial counsel’s investigation of

his mental status. As to those subclaims, we afford

CRITTENDEN v. AYERS 18081

the full effect of AEDPA’s “highly deferential stan-

dard for evaluating state-court rulings.” Woodford v.

Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (inter-

nal quotation marks omitted). As to the remainder of

his IAC claim, we “perform an independent review

of the record to ascertain whether the state court

decision was objectively unreasonable,” because the

state-court adjudication was not reasoned. Himes v.

Thompson, 336 F.3d 848, 853 (9th Cir. 2003) (inter-

nal quotation marks omitted).

shall be deleted and replaced with the following paragraph:

A “postcard” denial by the California Supreme Court

is a denial on the merits. See Harris v. Superior

Court, 500 F.2d 1124, 1128 (9th Cir. 1974) (en

banc); see also Chambers v. McDaniel, 549 F.3d

1191, 1197 (9th Cir. 2008) (“[U]nless a court

expressly (not implicitly) states that it is relying

upon a procedural bar, we must construe an ambigu-

ous state court response as acting on the merits of a

claim, if such a construction is plausible.”). The first

sentence of the California Supreme Court’s order

thus constitutes an adjudication on the merits of Crit-

tenden’s state habeas petition — necessarily includ-

ing all aspects of his IAC claim — in its entirety. We

therefore accord AEDPA deference to the California

Supreme Court’s disposition of those claims. See

Gonzalez v. Brown, 585 F.3d 1202, 1206 (9th Cir.

2009); see also 28 U.S.C. § 2254(d). Because the

state court’s decision was not reasoned, however, we

“perform an independent review of the record to

ascertain whether the state court decision was objec-

tively unreasonable.” Himes v. Thompson, 336 F.3d

848, 853 (9th Cir. 2003) (internal quotation marks

omitted).

With these amendments, the panel has voted to deny

Appellant’s and Appellee’s petitions for rehearing. Judges

18082 CRITTENDEN v. AYERS

Fisher and Berzon have voted to deny Appellant’s petition for

rehearing en banc and Judge Farris so recommends.

The full court has been advised of the petition for rehearing

en banc and no judge has requested a vote on whether to

rehear the matter en banc. Fed. R. App. P. 35.

Appellant’s petition for rehearing and petition for rehearing

en banc, filed September 16, 2010, is denied. Appellee’s peti-

tion for rehearing, filed September 21, 2010, is denied. No

further petitions for panel rehearing or rehearing en banc will

be entertained.

OPINION

FISHER, Circuit Judge:

In 1989, a California jury convicted Steven Crittenden of

two murders and sentenced him to death. He now appeals the

denial of his federal habeas petition. Four claims are at issue

here: (1) whether the state trial prosecutor exercised a

peremptory challenge to exclude an African-American pro-

spective juror on account of her race in violation of the Equal

Protection Clause of the Fourteenth Amendment, as articu-

lated in Batson v. Kentucky, 476 U.S. 79 (1986); (2) whether

Crittenden’s trial counsel were constitutionally ineffective; (3)

whether the shackling of Crittenden during trial was objec-

tively unreasonable; and (4) whether a juror’s consultation of

the Bible at home and her discussion of a biblical passage

with other jurors during penalty-phase deliberations consti-

tuted prejudicial juror misconduct. On the Batson claim, we

vacate the district court’s judgment and remand for further

proceedings in light of the standard articulated in Cook v.

LaMarque, 593 F.3d 810 (9th Cir. 2010). On all other claims

we affirm the district court.

CRITTENDEN v. AYERS 18083

FACTUAL AND PROCEDURAL BACKGROUND1

On January 17, 1987, Joseph Chiapella found his parents

— both in their late sixties — bound, gagged and stabbed to

death in their Chico, California home. Katherine Chiapella

sustained massive injuries to her head and face and two deep

knife wounds to her chest and upper abdomen. The cause of

her death was multiple trauma, primarily from her forehead

and chest wounds. William Chiapella suffered 13 wounds of

varying severity. The cause of his death was multiple trauma,

caused primarily by a large chest wound — a knife was

driven completely inside his body — and blunt-force injuries

to the right side of his head. Both killings had taken place four

days before, on January 13.

The police quickly focused their suspicions on Crittenden.

Several months before the murders, the Chiapellas had hired

Crittenden, then a student at California State University at

Chico, to perform yard work. An eyewitness selected Critten-

den’s photograph as resembling the college-age, African-

American man he saw walking towards the Chiapella resi-

dence on January 13. On January 14, Crittenden cashed a

$3,000 check signed by Katherine Chiapella, made payable to

him and dated January 13. On January 21, the police executed

a search warrant on Crittenden’s apartment, where they found

sheets with a strawberry pattern that matched the design on

the bindings used to tie up the Chiapellas. They also seized a

pair of black tennis shoes whose soles matched a shoe print

left in the Chiapella residence. Crittenden was arrested the

same day. At the police station, Crittenden said that Katherine

Chiapella had paid him to perform various sexual activities on

at least 12 occasions between August and December 1986. He

claimed that the $3,000 check was payment for one particular

encounter on January 9, which took place in Room 96 of the

Thunderbird Lodge. He stated that he had not worn his black

1

We generally recite the facts as established in the state court proceed-

ings. See People v. Crittenden, 885 P.2d 887 (Cal. 1994) (“Crittenden I”).

18084 CRITTENDEN v. AYERS

tennis shoes since the previous fall. He also told police that

he had never gone inside the Chiapella residence and had

spent the afternoon of January 13 at the gym with three peo-

ple he named. These explanations could not withstand scru-

tiny. Crittenden’s bank account did not reflect any of the

supposed payments other than the $3,000 check. Neither

Katherine Chiapella nor Crittenden had registered at the

Thunderbird Lodge on January 9; tellingly, there was no

Room 96 at the motel. Crittenden’s left thumbprint was

obtained from an automatic teller slip found on the desk in the

Chiapellas’ study. And his alibi witnesses said they last saw

him at the gym on January 7, but not thereafter, and so dis-

credited Crittenden’s alibi.

While awaiting trial in the Butte County jail in May 1987,

Crittenden escaped and then kidnapped a man, commandeer-

ing his truck and forcing him to drive towards Chico, and later

Sacramento. Upon arriving in Sacramento, Crittenden fled on

foot but was apprehended later that day. Crittenden made two

subsequent escape attempts in September 1988 and March

1989, the September attempt involving an assault on a prison

guard.

The guilt phase of trial began March 14, 1989. Crittenden

presented an alibi defense. On April 24, the jury found him

guilty of two counts of first-degree murder (with special find-

ings that the murders were willful and premeditated and com-

mitted during the course of a robbery), one count of robbery,

the escapes and the kidnapping. See Cal. Penal Code §§ 189,

211, 12022 (1987). The jury also found true the four charged

special circumstances: robbery felony-murder with respect to

both Katherine and William Chiapella, multiple-murder with

respect to Katherine Chiapella and murder involving the

infliction of torture with respect to William Chiapella. See id.

§ 190.2(a)(3), (a)(17)(I), (a)(18) (1987).

Penalty phase proceedings began on May 3. The prosecu-

tion did not present additional evidence in aggravation. The

CRITTENDEN v. AYERS 18085

defense offered testimony from two mental health experts,

who testified that Crittenden had brain abnormalities. Critten-

den had abnormal electrical activity in the frontal lobe region

of his brain, which serves an “executive decision type of func-

tion” and judges the appropriate level of emotional response

for a given situation. This condition, one expert explained,

could be treated with medication, which would “quiet down”

the abnormal activity and lead to “improvement in some of

the dysfunctional areas.” The defense also offered testimony

from approximately 20 other witnesses, who remarked on

Crittenden’s good character and his positive role in their lives.

At the conclusion of the penalty phase, the jury fixed the pen-

alty at death.

The California Supreme Court affirmed Crittenden’s con-

viction and sentence in December 1994. See Crittenden I, 885

P.2d at 895. (His initial state habeas petition had been denied

three months earlier.) Crittenden filed a federal habeas peti-

tion containing both exhausted and unexhausted claims on

October 18, 1996. In March 1997, the district court dismissed

that petition without prejudice as a mixed petition under Rose

v. Lundy, 455 U.S. 509 (1982). Crittenden then filed a second

state habeas petition. While that was pending, Crittenden filed

a federal habeas petition in April 1997 containing only his ini-

tially exhausted claims. Following the California Supreme

Court’s dismissal of his second state habeas petition in 1999,

he amended his April 1997 federal habeas petition to include

his initially unexhausted claims. In 2000, the district court

granted reconsideration of its dismissal of Crittenden’s Octo-

ber 1996 federal habeas petition. It deemed his April 1997

federal habeas petition, as amended in 1999, filed nunc pro

tunc in October 1996.

The district court directed the magistrate judge to hold an

evidentiary hearing on Crittenden’s Batson and juror miscon-

duct claims. Following a December 2002 hearing before the

magistrate judge, and after reviewing de novo the magistrate

judge’s findings and recommendations, the district court

18086 CRITTENDEN v. AYERS

denied Crittenden’s federal habeas petition in its entirety in

February 2005. The district court subsequently denied Critten-

den’s motion to amend the judgment, but modified its analysis

of his shackling claim to account for an intervening decision

of the United States Supreme Court. Crittenden immediately

filed a timely notice of appeal. The district court granted a

certificate of appealability for all claims advanced in this

appeal.

STANDARD OF REVIEW

Even giving Crittenden the benefit of the district court’s

nunc pro tunc filing order, his federal habeas petition was not

“pending” before April 24, 1996, the effective date of the

Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”). Therefore, federal habeas review is governed in

the first instance by AEDPA’s highly deferential standard of

review. See Woodford v. Garceau, 538 U.S. 202, 210 (2003).

We review the state court’s last reasoned decision. Ylst v.

Nunnemaker, 501 U.S. 797, 805 (1991); see also Van Lynn v.

Farmon, 347 F.3d 735, 738 (9th Cir. 2003). Under AEDPA,

a petitioner is entitled to federal habeas relief only if he can

show that the state court’s adjudication of his claim (1)

resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established federal law,

as determined by the Supreme Court, or (2) resulted in a deci-

sion that was based on an unreasonable determination of the

facts in light of the evidence presented in the state court pro-

ceeding. 28 U.S.C. § 2254(d). “The state court’s application

of clearly established law must be objectively unreasonable,”

not just incorrect or erroneous. Lockyer v. Andrade, 538 U.S.

63, 75 (2003). We presume the state court’s factual findings

to be correct, a presumption the petitioner has the burden of

rebutting by clear and convincing evidence. See 28 U.S.C.

§ 2254(e)(1); Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.

2004).

CRITTENDEN v. AYERS 18087

We review de novo the district court’s denial of habeas

relief, see Dubria v. Smith, 224 F.3d 995, 1000 (9th Cir.

2000) (en banc), as well as its grant of summary judgment,

see Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004). We

review de novo the district court’s legal determinations, see

Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002), includ-

ing whether the district court properly applied AEDPA’s stan-

dards, see Lambert v. Blodgett, 393 F.3d 943, 965 (9th Cir.

2004).

DISCUSSION

I. Batson Claim

Crittenden is African-American. The victims were a white

couple in their late sixties. Crittenden contends that the prose-

cutor’s peremptory challenge of the only African-American

prospective juror was on account of her race in violation of

the Equal Protection Clause. See Batson v. Kentucky, 476 U.S.

79 (1986). We affirm the district court’s conclusion that the

California Supreme Court’s resolution of Crittenden’s Batson

claim was contrary to clearly established federal law under

AEDPA. We also affirm its conclusions at Batson’s first and

second steps respectively that Crittenden made a prima facie

showing of discrimination and that the state carried its burden

of articulating a race-neutral justification for the peremptory

strike. On Batson’s third step, however, we vacate the district

court’s decision and remand for further proceedings in light

of the standard set forth in Cook v. LaMarque, 593 F.3d 810.

A.

Before voir dire, prospective jurors completed a question-

naire asking them about their background and beliefs, includ-

ing their feelings about the death penalty. Ms. Casey, the only

African-American prospective juror, noted on her question-

naire “I don’t like to see anyone put to death.” During voir

dire, Ms. Casey said she was “against death — being put to

18088 CRITTENDEN v. AYERS

death” and “against killing people.” She said she thought her

feelings concerning the death penalty would not cause her to

vote against a first degree murder conviction or special cir-

cumstances if proven. She later stated, however, that she did

not know whether her feelings about the death penalty might

impair her ability to fairly evaluate all of the evidence and

make a decision regarding the death penalty.

After questioning Ms. Casey, the prosecutor challenged her

for cause “based upon her answer that she doesn’t believe in

the death penalty.” The trial court immediately denied the

challenge without explanation.

Several days later the exercise of peremptory challenges

began. The prosecutor used his fifteenth peremptory challenge

to remove Ms. Casey from the jury. Crittenden’s counsel

moved for a mistrial based on People v. Wheeler, 583 P.2d

748 (Cal. 1978), and filed a lengthy motion asserting that

striking Ms. Casey was race-based.2

During a short recess, the trial court took Crittenden’s

Wheeler motion under submission and suggested that jury

selection continue because, if the court ultimately granted the

motion, the court would simply discharge the jury that had

been selected to that point. Ms. Clark, a white woman, was

the next juror placed in the jury box. She was not challenged.

The defense and the prosecution each made three additional

challenges. At that point, 11 jurors were seated in the jury

box, including Ms. Clark. The prosecution had used 18 of its

peremptory challenges and had eight remaining; the defense

had used 17 and had nine remaining. The court then excused

2

Wheeler is considered the California procedural equivalent of Batson,

476 U.S. 79. See Paulino v. Castro (Paulino I), 371 F.3d 1083, 1088 n.4

(9th Cir. 2004). Crittenden preserved his federal constitutional claim

because a Wheeler motion serves as an implicit Batson objection. See

Boyd v. Newland, 467 F.3d 1139, 1142 n.2 (9th Cir. 2006); People v. Yeo-

man, 72 P.3d 1166, 1187 (Cal. 2003).

CRITTENDEN v. AYERS 18089

the jury and heard argument on the Wheeler motion. It noted

that it had read the motion and accompanying documents sub-

mitted by the defense counsel and reviewed the transcript of

the voir dire.

The defense argued it had made a prima facie case of dis-

criminatory purpose: Ms. Casey was the only African-

American prospective juror, she was a solid member of the

community in terms of demographic factors and the prosecu-

tor had used only “desultory” voir dire in examining Ms.

Casey. The prosecutor did not comment on the prima facie

case issue. The court denied the motion, stating:

I’m denying the motion, gentlemen. And I do not

find a prima facie case.

I realize that I could go into this matter further by

announcing that there is a prima facie case, and

receive the explanation of the Prosecutor.

But I choose not to, because of the fact that I don’t

believe that there is a prima facie case.

My notes at the time that we interviewed this juror

— and my impressions — revealed that at the very

time that we interviewed Ms. Casey, my exact quota-

tion in my notes is: “This is a case where a Wheeler

motion would be inappropriate, because of the fact

that she is indecisive and cannot guarantee that she

would vote a certain way.”

And in my language that does not mean that, that

would vote a certain way, based on the facts. But

that she couldn’t decide whether or not she would be

able to follow the law.

That is reflected in her transcript, as well.

18090 CRITTENDEN v. AYERS

And, frankly, I do not see, because of this it would

be difficult to establish a pattern — and I would put

pattern in quotes of — of challenges.

Because there is only Ms. Casey, who is black, on

the jury panel. But there are abundant other reasons

why I would have expected a peremptory challenge

on this particular matter. And, as such, her wrestling

with these issues indicated to me that; although a

cause challenge was certainly not called for, that a

peremptory challenge was going to be expected in

any event.

I don’t think that a prima facie case has been made

out for those reasons. And for that reason, I deny it.

For those reasons that I have stated, as well as the

reasons that will apply throughout the record in the

actual transcript of her record; the motion is denied.

By the conclusion of jury selection, the prosecutor exer-

cised all 26 of his peremptory challenges. Most of the jurors

he peremptorily challenged were equally disinclined from a

philosophical standpoint to impose capital punishment as Ms.

Casey or more so, although some of the challenged jurors

appeared more inclined to impose the death penalty.

On direct appeal, the California Supreme Court rejected

Crittenden’s Batson claim. In explaining the requirements for

establishing a prima facie case, the court stated that the “mov-

ing party must show a strong likelihood that such persons are

being challenged because of group association.” Crittenden I,

885 P.2d at 902 (emphasis added) (internal quotation marks

omitted). The California Supreme Court concluded that the

record supported the trial court’s finding that Crittenden failed

to make a prima facie showing that Ms. Casey was excluded

on the basis of race. Id. at 905.

In his federal habeas petition, Crittenden claimed that this

decision was erroneous. Subsequently, the district court

CRITTENDEN v. AYERS 18091

ordered an evidentiary hearing on Crittenden’s Batson claim,

directing the magistrate judge to determine under the second

and third steps of Batson whether there was a Batson violation

in the trial court.

The prosecutor was deposed before the evidentiary hearing.

He said 14 years had elapsed since the jury selection and he

had no independent recollection of it or the bases of his for-

cause and peremptory challenges of Ms. Casey. Noting that

his response was not based on memory, but rather his views

after reviewing the record, he said that he used a peremptory

challenge to remove Ms. Casey from the jury because she

opposed the death penalty, did not want to sit on the jury and

had transportation problems. He said he “was looking for

strong, independent jurors that [he] thought would be able to

unequivocally vote for the death penalty” and “she was not

that juror.” He also noted that he could not recall what his

personal observations were, but that such observations are

“very important in the selection of a jury” and “the transcript

of Ms. Casey’s voir dire . . . [had] dashes and spaces, so there

must have been pauses” and she thus could have “appeared

. . . equivocal.”

At the evidentiary hearing the prosecutor testified, after

reviewing transcripts and questionnaires, that he made three

challenges for cause before challenging Ms. Casey on the

basis of objections to the death penalty and that when he chal-

lenged her for cause he believed it would be granted because

“[she] did not believe in the death penalty. She stated that she

hated death and did not believe in the death penalty.” He

answered again the question of why he exercised a peremp-

tory to remove her:

Q [T]oday, do you have an independent recollec-

tion why you excused [Ms.] Casey?

A An independent recollection?

18092 CRITTENDEN v. AYERS

Q Independent recollection?

A Other than what I reviewed in questionnaires

and that sort of thing? It’s just a philosophical ques-

tion to me. I can tell you why I did it, but I can’t tell

you that those were the exact words I had in my

mind when I did it.

Q First of all, what — how do you interpret the

question, do you remember?

A Well, at the deposition, counsel for the defense

were asking me, do you have an independent recol-

lection now of what you were thinking at the time

that you did something. That’s a way of looking at

it. No. I can’t tell you what exactly I was thinking

then.

I’ve read the transcripts. I’ve read the question-

naire. I know myself. So, I can see what I did, and

I see explanations of why I did it.

Q Do you have an answer today to the question

why did you excuse [Ms.] Casey?

A Sure. She was anti-death penalty.

Q And was there —

The court: And you have based that answer on

interpreting your notes?

A The questionnaire and the — and my notes, and

reading the transcript.

Finally, he explained his rating system for prospective jurors

in the jury selection process. After voir dire he would make

a notation at the bottom corner of the questionnaire, either a

CRITTENDEN v. AYERS 18093

series of X’s or checkmarks to indicate his preference and its

strength or his hesitation about accepting the prospective

juror. The notations referred to whether he thought the pro-

spective juror was favorable or unfavorable to the prosecu-

tion, with significant focus on the death penalty issue.

The prosecutor’s copies of the juror questionnaires for Ms.

Casey and other jurors were entered into evidence. The ques-

tion about the juror’s death penalty views was number 56 on

the questionnaire, and, before voir dire began, the prosecutor

wrote “56” on the front page of Ms. Casey’s questionnaire.

Additionally, his copy of Ms. Casey’s questionnaire reflected

that, at the conclusion of Ms. Casey’s voir dire, the prosecutor

gave her a rating of “XXXX,” the most negative rating within

his system, and wrote “DP,” “transport problems” and “can’t

say if would set aside” on her questionnaire.

At step two of the Batson inquiry, the magistrate judge

found the prosecutor was “credible and forthright in his fac-

tual testimony relating his non-recollection and recollections

with respect to his systemic practices and the rating system in

this case.” Further, he found the prosecutor “was not purpose-

ful in his non-recollection, nor was he creating recollections

where he really had none.” The magistrate judge then con-

cluded that the prosecutor’s articulation of a race-neutral rea-

son could be “reconstructed” based on circumstantial

evidence. Relying on (1) Ms. Casey’s answers to the juror

questionnaire, (2) the prosecutor’s pre-voir dire notation of

his concern about her response to the death penalty question

56 on the questionnaire, (3) the voir dire transcript and (4) the

prosecutor’s post-voir dire notations rating her as “XXXX,”

the magistrate judge found the circumstantial evidence was

sufficiently specific to discern with confidence that the prose-

cutor would have articulated a race-neutral justification for his

peremptory challenge had he been asked to do so — namely

Ms. Casey’s “reluctance or indecision to impose the death

penalty” — and therefore that the state had carried its burden

at Batson’s step two.

18094 CRITTENDEN v. AYERS

At step three, the magistrate judge found “race played some

part in the prosecutor’s evaluation of Ms. Casey, but was not

‘the real reason’ or effective reason for her being struck from

the jury.” The magistrate judge reached this conclusion

through a comparative juror analysis and found that the prose-

cutor’s extremely negative “XXXX” rating of Ms. Casey

could not be explained by her views on the death penalty

alone because other jurors who expressed similar views on the

death penalty received less negative ratings. The magistrate

judge concluded, however, that Ms. Casey’s race was not the

actual reason for her strike, because “prosecutor Flanagan had

a good reason to exercise his challenge which outweighed the

bad.”

The district court adopted the magistrate judge’s post-

evidentiary hearing findings and recommendations, with some

modifications. In pertinent part, it found that race-neutral fac-

tors could not fully “justify Casey’s XXXX rating, especially

when compared to other venire members,” and that “race

played a significant part in the prosecutor’s decision to

remove Casey.” Like the magistrate judge, however, the dis-

trict court further found that “a valid and well-supported race-

neutral reason exists for Casey’s challenge” and the court

therefore “c[ould] not find the ‘real’ or ‘motivating’ reason

for Casey’s removal was her race.” It therefore denied Crit-

tenden’s Batson claim.

B.

[1] The California Supreme Court’s decision with respect

to Crittenden’s Batson claim was contrary to clearly estab-

lished federal law under AEDPA because, in affirming the

trial court’s ruling, it required Crittenden to show a “strong

likelihood” that the prosecutor’s challenge had been racially

motivated. See Frantz v. Hazey, 533 F.3d 724, 734 (9th Cir.

2008) (en banc) (“[U]se of the wrong legal rule or framework

. . . constitute[s] error under the ‘contrary to’ prong of

§ 2254(d)(1).”). The “strong likelihood” standard impermiss-

CRITTENDEN v. AYERS 18095

ibly places on the defendant a more onerous burden of proof

than is permitted by Batson’s standard of “rais[ing] an infer-

ence” of discriminatory purpose. See Johnson v. California,

545 U.S. 162, 169, 170-73 (2005); Wade v. Terhune, 202 F.3d

1190, 1197 (9th Cir. 2000). We thus must “resolve the claim

without the deference AEDPA otherwise requires.” Panetti v.

Quarterman, 551 U.S. 930, 953 (2007); see also Williams v.

Taylor, 529 U.S. 362, 406 (2000); Wade, 202 F.3d at 1197.

In doing so, we review de novo questions of law and mixed

questions of law and fact. See Williams, 529 U.S. at 400;

Frantz, 533 F.3d at 739. Factual findings and credibility

determinations that were not made by the trial court but were

made by the district court after an evidentiary hearing are

reviewed for clear error. See Lambert, 393 F.3d at 964.

C.

Batson established a three-step process for adjudicating a

claim that a peremptory challenge was based on race:

[A] defendant [can] make out a prima facie case of

discriminatory jury selection by “the totality of the

relevant facts” about a prosecutor’s conduct during

the defendant’s own trial. “Once the defendant

makes a prima facie showing, the burden shifts to the

State to come forward with a neutral explanation for

challenging . . . jurors within an arguably targeted

class. Although there may be “any number of bases

on which a prosecutor [might] believe that it is desir-

able to strike a juror who is not excusable for cause

. . . , the prosecutor must give a clear and reasonably

specific explanation of his legitimate reasons for

exercising the challeng[e].” “The trial court will

have the duty to determine if the defendant has

established purposeful discrimination.”

Miller-El v. Dretke, 545 U.S. 231, 239 (2005) (“Miller-El II”)

(quoting Batson, 476 U.S. at 94, 96-98, n.20) (internal cita-

18096 CRITTENDEN v. AYERS

tions omitted). “[T]he burden to prove purposeful discrimina-

tion is always on the opponent of the challenge,” so the first

two steps represent “mere burdens of production” that aid the

court in determining, at step three, whether the petitioner has

satisfied the ultimate burden of persuasion. Yee v. Duncan,

463 F.3d 893, 898 (9th Cir. 2006). Petitioner’s burden of

proof at step three is a preponderance of the evidence. See

Paulino v. Harrison, 542 F.3d 692, 702 (9th Cir. 2008)

(“Paulino II”).

1. Prima Facie Case

[2] Under Batson’s first step, the defendant must establish

a prima facie case of purposeful discrimination. See Batson,

476 U.S. at 93-94. He must show that (1) the prospective juror

is a member of a “cognizable racial group,” (2) the prosecutor

used a peremptory strike to remove the juror and (3) the total-

ity of the circumstances raises an inference that the strike was

on account of race. Id. at 96; see Johnson, 545 U.S. at 169;

Boyd v. Newland, 467 F.3d 1139, 1143 (9th Cir. 2006). The

first and second elements of the test are met here, because the

prospective juror is African-American and the prosecutor

used a peremptory strike to remove the prospective juror.

Thus, only the third element of the prima facie case is at issue

— whether the California state court erred in failing to recog-

nize that the totality of the circumstances raised an inference

of racial motivation.

The Supreme Court clarified the threshold requirements of

Batson’s step one in Johnson. There, the prosecutor used

three of his 12 peremptory challenges to strike all of the

African-American prospective jurors from the jury pool. See

Johnson, 545 U.S. at 164. The defense counsel made Whee-

ler/Batson motions after the second and third strikes of

African-American prospective jurors. After the third strike,

the trial court warned the prosecutor that the situation was

“very close,” but found the defense had not established a

CRITTENDEN v. AYERS 18097

prima facie case. Id. at 165. The Supreme Court reversed,

clarifying that the first step was not an onerous burden:

We did not intend the first step to be so onerous that

a defendant would have to persuade the judge — on

the basis of all the facts, some of which are impossi-

ble for the defendant to know with certainty — that

the challenge was more likely than not the product

of purposeful discrimination. Instead, a defendant

satisfies the requirements of Batson’s first step by

producing evidence sufficient to permit the trial

judge to draw an inference that discrimination has

occurred.

Id. at 170. On the same day, the Supreme Court also decided

Miller-El II, using comparative juror analysis to determine

whether the prosecution was motivated by racial bias in exer-

cising its peremptory strikes. See Miller-El II, 545 U.S. at

241.

With this precedent in mind, and in light of the “totality of

the relevant facts,” Batson, 476 U.S. at 94, we conclude that

Crittenden produced evidence sufficient to draw an inference

that discrimination occurred. Several considerations lead to

this conclusion.

[3] As an initial matter, the prosecutor’s use of a peremp-

tory strike against the only African-American prospective

juror is a relevant consideration, although it does not by itself

raise an inference of discrimination. We have previously

stated that “[a] pattern of striking panel members from a cog-

nizable racial group is probative of discriminatory intent, but

a prima facie case does not require a pattern because ‘the

Constitution forbids striking even a single prospective juror

for a discriminatory purpose.’ ” United States v. Collins, 551

F.3d 914, 919 (9th Cir. 2009) (quoting United States v.

Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994)); see also

Snyder v. Louisiana, 552 U.S. 472, 478 (2008). We have also

18098 CRITTENDEN v. AYERS

recognized that, “[t]he fact that the juror was the one Black

member of the venire does not, in itself, raise an inference of

discrimination” because “it is not per se unconstitutional,

without more, to strike one or more Blacks from the jury.”

Vasquez-Lopez, 22 F.3d at 902; see also Collins, 551 F.3d at

920. Here we have that additional evidence of discrimination

by way of comparative juror analysis.

[4] Comparative juror analysis is an established tool at step

three of the Batson analysis for determining whether facially

race-neutral reasons are a pretext for discrimination, see, e.g.,

Miller-El II, 545 U.S. at 241; see also Boyd, 467 F.3d at 1149;

Kesser v. Cambra, 465 F.3d 351, 360 n.2 (9th Cir. 2006) (en

banc). In addition, comparative juror analysis may be

employed at step one to determine whether the petitioner has

established a prima facie case of discrimination. Boyd, 467

F.3d at 1149. Crittenden argues that a comparison of Ms.

Casey with other jurors — particularly Ms. Clark, the white

juror who took her place on the jury — provides evidence suf-

ficient to permit a judge to draw an inference that discrimina-

tion occurred.

[5] The prosecutor rated Ms. Casey in his notation system

as “XXXX,” indicating a very undesirable juror in his view,

and Ms. Clark as “,” indicating a fairly desirable juror.

They were demographically similar apart from race, however,

and a comparison of their voir dire responses shows some

similarities to the extent that they both expressed general

opposition to the death penalty and some hesitancy about its

imposition.3 We therefore agree that the wide difference

3

There were some differences too. For example, whereas Ms. Casey

expressed her opposition to the death penalty as a general feeling, Ms.

Clark cited her religious beliefs as a strong reason for opposing it. Ms.

Clark said she was Catholic and was raised to believe she could not take

somebody’s life, but she also later said she would be able to follow the

law. In contrast, Ms. Casey said: “I don’t believe in death penalty. And I

don’t believe in nobody killing anybody either. So I guess — I don’t know

CRITTENDEN v. AYERS 18099

between the prosecutor’s rating of Ms. Casey and Ms. Clark

is evidence from which an inference of discrimination could

have been drawn for the purpose of determining whether Crit-

tenden established a prima facie case.

A comparative analysis between Ms. Casey and juror

Krueger, a white woman who received a rating of “ ½”

from the prosecutor, adds to the evidence from which such an

inference could be drawn. Ms. Casey and Ms. Krueger were

demographically similar in most respects apart from race.

Like Ms. Casey, Ms. Krueger noted on her questionnaire that

she was against the death penalty. As was the case with Ms.

Clark, although there were some differences in voir dire

responses generally, given the demographic similarity and

somewhat analogous views on the death penalty, the marked

difference in the prosecutor’s ratings buttresses Crittenden’s

prima facie case.

[6] In addition to the above considerations, the circum-

stances of the prosecutor’s for-cause challenge of Ms. Casey

also add to the evidence from which an inference of improper

discrimination could be drawn. The prosecutor said he chal-

lenged her for cause because she did not believe in the death

penalty; however, it was well established law at the time that

what you would say — in between or whatever.” On balance, the tran-

script shows that Ms. Clark was clearer than Ms. Casey about her ability

to vote for a death verdict and to be decisive, though at times both

expressed hesitancy or uncertainty. In particular, although Ms. Clark

voiced some uncertainty about imposing the death penalty, she also

expressly claimed to be a decisive person. She said, “I have never been in

that predicament. I am not quite sure how I would react. I feel the person

should be punished for their crime. Maybe I could.” But she also said she

was “a pretty decisive person” and that she would be comfortable in mak-

ing a decision about imposing the death penalty. Ms. Casey, by contrast,

provided no such reassurance about her ability to be decisive. In addition

to the statement quoted above, she said she felt “not good” about the pros-

pect of serving as a juror because “[i]t is scary” and she had never done

it before.

18100 CRITTENDEN v. AYERS

challenges for cause based on a juror’s general objections to

the death penalty were improper. See Wainwright v. Witt, 469

U.S. 412, 424 (1985).

[7] In light of the above considerations, we conclude that

Crittenden made a prima facie showing sufficient for the first

step of Batson.4 We emphasize that Crittenden’s burden at this

step was not onerous. Concluding that he produced “evidence

sufficient to permit the trial judge to draw an inference that

discrimination . . . occurred,” Johnson, 545 U.S. at 170, does

not amount to a conclusion that discrimination actually

occurred. That determination is left to the third step of the

Batson analysis.

2. Race-Neutral Explanation

[8] After the opponent of the peremptory strike makes a

prima facie case raising an inference of discrimination, “the

burden of production shifts to the proponent of the strike to

come forward with a race-neutral explanation (step two).”

Purkett v. Elem, 514 U.S. 765, 767 (1995). The explanation

4

Crittenden makes two other arguments that do not add significantly to

his prima facie case. First, Crittenden contends that the prosecutor dispa-

rately questioned Ms. Casey by referring to the “gas chamber” in question-

ing her and not other prospective jurors. The prosecutor’s unadorned use

of the term “gas chamber” was not graphic, however, and it did not stand

out from the rest of the questioning. Cf. Miller-El II, 545 U.S. at 256. The

defense itself referred to the gas chamber when questioning another pro-

spective juror. Moreover, although the prosecutor did not mention the gas

chamber with other prospective jurors, he did ask at least equally pointed

questions about applying the death penalty, such as whether they could

vote to impose the death penalty against a young man the same age as a

juror’s grandchildren and whether a juror could himself sign the verdict

of death. Second, Crittenden notes that the same prosecutor removed the

only African-American panelist in a jury venire in a different capital case

tried the year before his, urging this as evidence of the prosecutor’s dis-

criminatory motive in his case. The probative value of this information is

weak because it is a single instance and the trial court denied the Batson

objection in that case.

CRITTENDEN v. AYERS 18101

does not have to be “persuasive, or even plausible,” because

“the ultimate burden of persuasion regarding racial motivation

rests with, and never shifts from, the opponent of the strike.”

Id. at 768. As we explained in Yee v. Duncan:

[S]tep two is an opportunity for the prosecution to

explain the real reason for her actions. A failure to

satisfy this burden to produce — for whatever reason

— becomes evidence that is added to the inference

of discrimination raised by the prima facie showing,

but it does not end the inquiry. The trial court then

moves on to step three where it considers all the evi-

dence to determine whether the actual reason for the

strike violated the defendant’s equal protection

rights.

463 F.3d 893, 899 (9th Cir. 2006).

In the usual case, the Batson analysis takes place during or

shortly after jury selection. In those cases, the prosecutor

offers a contemporaneous explanation for the strike at step

two. Where time has passed since the jury selection, the pros-

ecutor may offer an explanation based on his present recollec-

tion of his reasons for striking the juror. Where, as here, time

has passed and the prosecutor no longer has a present recol-

lection of his or her reasons for striking the juror, the state

may offer an explanation based on circumstantial evidence.

See Paulino II, 542 F.3d at 700 (“Evidence of a prosecutor’s

actual reasons may be direct or circumstantial, but mere spec-

ulation is insufficient.”). When this occurs, we say that the

state has “reconstructed” the prosecutor’s reasons for striking

the juror. During reconstruction, the state may rely on any rel-

evant evidence, such as jury questionnaires, the prosecutor’s

notes or testimony of the prosecutor.

As we explained in Paulino II, the court may reject a recon-

structed articulation as mere “speculation” or accept it as

properly based on relevant circumstantial evidence. See id.

18102 CRITTENDEN v. AYERS

(“[T]he district court did not err in concluding that the specu-

lative reasons offered by the prosecutor did not constitute cir-

cumstantial evidence of her actual reasons.”). But regardless

of how the state offers its race-neutral justification, it is not

the task of the district court at step two to assess the truth of

the explanation. That is part of the step three analysis. Nor is

it the district court’s role to conduct its own reconstruction,

based on the circumstantial evidence, of what the prosecutor

would have said. At step two, the court’s role is limited to

determining whether the state has met its burden of produc-

tion at all.5

[9] In this case, the government took advantage of its step

two opportunity by offering relevant circumstantial evidence

suggesting several race-neutral reasons for removing Ms.

Casey from the jury. On this basis, the district court properly

concluded that the state satisfied its burden of production at

step two, which merely required it to show that the prosecutor

would have articulated some race-neutral justification if

asked.

3. Purposeful Discrimination

[10] In step three of the Batson inquiry, the court must

decide whether the opponent of the peremptory challenge has

carried his burden of proving purposeful discrimination by a

preponderance of the evidence. See Batson, 476 U.S. at 98;

Cook v. LaMarque, 593 F.3d at 815 (to show “purposeful dis-

5

At step three of the Batson analysis, the district court considers the

totality of the evidence and determines whether or not the plaintiff has

proved purposeful racial discrimination by a preponderance of the evi-

dence. There, the court should consider all of the relevant evidence,

including the court’s assessment of the prosecutor’s credibility. Evidence

that the race-neutral justifications offered by the state at step two are

unworthy of credence supports a finding of race discrimination. See Sny-

der, 552 U.S. 472, 485 (2008) (“The prosecution’s proffer of this pretex-

tual explanation naturally gives rise to an inference of discriminatory

intent.”).

CRITTENDEN v. AYERS 18103

crimination at Batson’s third step” the petitioner must estab-

lish that “race was a substantial motivating factor”).

[11] Acting prior to our decision in Cook, the district court

appears to have conducted its step three analysis by asking

whether race played a “significant” part in the decision to

issue the peremptory strike, and if so whether the defendant

could prove under a mixed motives analysis that the strike

would have issued even if race had played no role. Cook

framed the first inquiry in different terms and eliminated the

second. As Cook explains, the proper analysis at Batson’s step

three is whether the peremptory strike was “motivated in sub-

stantial part” by race. Id. If it was so motivated, the petition

is to be granted regardless of whether the strike would have

issued if race had played no role. Id. (“[W]e reject the . . .

mixed-motives analysis, and limit our inquiry to whether the

prosecutor was ‘motivated in substantial part by discrimina-

tory intent.’ ”).

[12] As the district court was operating under the errone-

ous impression that the Batson inquiry required an additional

step — i.e., mixed motives analysis — we remand to give the

court an opportunity to apply the proper standard, as articu-

lated in Cook. We do not foreclose the possibility that the dis-

trict court could conclude on remand that its previous finding

that “race played a significant part in the prosecutor’s deci-

sion to remove Casey” was sufficient under Cook to establish

a Batson violation.6 Nonetheless, the district court did not

have the benefit of Cook when it last addressed the question,

and its evaluation of the significance of the race factor in the

decision to strike Ms. Casey could have been informed by its

6

Both the Supreme Court and this court have used the words “signifi-

cant” and “substantial” interchangeably in analogous contexts. See, e.g.,

Ward v. Rock Against Racism, 491 U.S. 781, 796-800 (1989); Klein v. City

of San Clemente, 584 F.3d 1196, 1201 n.3 (9th Cir. 2009); Long Beach

Area Peace Network v. City of Long Beach, 574 F.3d 1011, 1023-24 (9th

Cir. 2009); N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993, 1000

(9th Cir. 2007).

18104 CRITTENDEN v. AYERS

understanding that there would be another analytic step focus-

ing on the several race-neutral justifications offered. We

therefore leave it to the district court to make a step three

determination in the first instance, unconstrained by its prior

findings under the pre-Cook standard.

II. Ineffective Assistance of Counsel

Crittenden next argues that he did not receive constitution-

ally effective assistance from his trial counsel, Dennis Hop-

towit and Donald Blake, because they (1) delayed

neuropsychological testing until it was too late to present a

mental state defense in the guilt phase; (2) did not conduct an

adequate investigation into mitigating evidence, which would

have revealed that Crittenden had (i) an organic mood disor-

der with bipolar features and (ii) a history of behavioral prob-

lems and childhood abuse; and (3) ineffectually presented

social background and mental health evidence in the penalty

phase. We affirm the district court’s denial of federal habeas

relief because the California Supreme Court’s rejection of

Crittenden’s ineffective assistance of counsel (“IAC”) claim

was not an objectively unreasonable application of clearly

established law.7

7

Because additional factual development would not enable Crittenden to

state a colorable claim, we also conclude that the district court did not

abuse its discretion by denying Crittenden’s request for investigative funds

under former 21 U.S.C. § 848(q)(4)(B) and (q)(9), see Bonin v. Calderon,

59 F.3d 815, 837 (9th Cir. 1995), discovery under Rule 6(a) of the Rules

Governing Section 2254 Cases, see Rich v. Calderon, 187 F.3d 1064, 1068

(9th Cir. 1999), discovery under Rule 56(f) of the Federal Rules of Civil

Procedure, see Jones v. Blanas, 393 F.3d 918, 930 (9th Cir. 2004), and an

evidentiary hearing, see Stankewitz v. Woodford, 365 F.3d 706, 708 (9th

Cir. 2004). For similar reasons, we do not reach the State’s argument that

Crittenden failed to exercise sufficient diligence in developing the factual

basis of his claim in state court proceedings, barring him from obtaining

a federal evidentiary hearing. See generally 28 U.S.C. § 2254(e)(2); Wil-

liams v. Taylor, 529 U.S. 420, 432 (2000).

CRITTENDEN v. AYERS 18105

A. Application of AEDPA

We begin by ascertaining the appropriate standard of

review. In relevant part, the California Supreme Court’s order

denying Crittenden’s first state habeas petition stated:

The petition for writ of habeas corpus is denied in its

entirety.

Petitioner’s claim that trial counsel rendered ineffec-

tive assistance by his delay in seeking neuropsy-

chological testing is denied on the merits.

(Emphasis added.) We reject Crittenden’s contention that the

California Supreme Court adjudicated on the merits only the

“delay in seeking neuropsychological testing” aspect of his

IAC claim.

A “postcard” denial by the California Supreme Court is a

denial on the merits. See Harris v. Superior Court, 500 F.2d

1124, 1128 (9th Cir. 1974) (en banc); see also Chambers v.

McDaniel, 549 F.3d 1191, 1197 (9th Cir. 2008) (“[U]nless a

court expressly (not implicitly) states that it is relying upon a

procedural bar, we must construe an ambiguous state court

response as acting on the merits of a claim, if such a construc-

tion is plausible.”). The first sentence of the California

Supreme Court’s order thus constitutes an adjudication on the

merits of Crittenden’s state habeas petition — necessarily

including all aspects of his IAC claim — in its entirety. We

therefore accord AEDPA deference to the California Supreme

Court’s disposition of those claims. See Gonzalez v. Brown,

585 F.3d 1202, 1206 (9th Cir. 2009); see also 28 U.S.C.

§ 2254(d). Because the state court’s decision was not rea-

soned, however, we “perform an independent review of the

record to ascertain whether the state court decision was objec-

tively unreasonable.” Himes v. Thompson, 336 F.3d 848, 853

(9th Cir. 2003) (internal quotation marks omitted).

18106 CRITTENDEN v. AYERS

B. Guilt Phase

Crittenden contends that trial counsel did not timely inves-

tigate his mental health and therefore failed to present a men-

tal state defense during the guilt phase that might have won

him acquittal of first-degree murder with special circum-

stances, thereby removing him from death eligibility under

California law. See Cal. Penal Code § 190.2(a) (1987) (defin-

ing special circumstances). To prevail on a claim of ineffec-

tive assistance, the petitioner must show that trial counsel’s

performance was deficient and that the deficient performance

prejudiced his defense. See Strickland v. Washington, 466

U.S. 668, 687 (1984). Without resolving whether trial coun-

sel’s guilt-phase investigation was constitutionally deficient,

we hold that it is not objectively unreasonable to conclude

that Crittenden has not established prejudice. Consequently,

Crittenden is not entitled to federal habeas relief.

For background, we summarize trial counsel’s investigative

efforts. Hoptowit entered his appearance in January 1987. He

obtained from Crittenden’s mother some “materials and infor-

mation regarding prior psychological treatment and counsel-

ing received by Mr. Crittenden.” Recognizing that the

physical evidence against Crittenden was strong, he “assumed

from the beginning that there would be a penalty phase” and

“[r]elatively early on . . . made the decision to have a com-

plete psychological/neurological workup performed.” The

trial court approved funds for psychological testing in Febru-

ary 1987, but trial counsel did not begin testing until October

1988, one month before jury selection began. On October 21,

Dr. Bruce Kaldor, a psychiatrist, met with Crittenden for four

hours, took a medical history and administered an alcohol

abuse screening test. A week later, Dr. Michael Erickson, a

clinical psychologist, met with Crittenden for six hours, com-

pleted a life history survey and performed six psychological

tests. Drs. Kaldor and Erickson concluded that Crittenden had

an antisocial personality disorder. Neither found any indica-

tion of organic brain impairment. Dr. Kaldor recommended,

CRITTENDEN v. AYERS 18107

however, that further neurological testing be conducted

because there were “certain organic mental conditions which

are associated with aggressive behavior and poor impulse

control.” Dr. John Seals subsequently performed electroen-

cephalogram (“EEG”) and Brain Electrical Activity Mapping

(“BEAM”) testing on February 24, 1989, three weeks before

the guilt phase began. Dr. Seals concluded that Crittenden

suffered from an organic brain defect in the frontal lobe

region. On March 2, Hoptowit consulted with Dr. Robert Bit-

tle, a psychiatrist, to review Crittenden’s “complete medi-

cal/psychological file, which at that time included his

childhood records,” and the reports of Drs. Kaldor, Erickson

and Seals. Dr. Bittle never interviewed Crittenden personally,

but averred that he became “quite familiar” with the case

“based upon his review of [Crittenden’s] file and discussions

with his defense counsel.” On March 13, Dr. Arthur Dublin

performed an MRI of Crittenden’s brain and found no abnor-

malities. None of these medical experts testified during the

guilt phase, which began the next day.

[13] We do not condone unnecessary delay in starting the

investigative process. Fully cognizant of the importance of a

“prompt and timely examination,” trial counsel nonetheless

waited 21 months between obtaining funds for psychological

testing and arranging for Crittenden to be examined by Drs.

Kaldor and Erickson.8 Even then, trial counsel took three

more months to conduct the additional neurological testing

recommended by Dr. Kaldor. See Bean v. Calderon, 163 F.3d

1073, 1078 (9th Cir. 1998) (criticizing counsel for “delaying

for over ten months in following the explicit recommenda-

tions of two mental health experts”). Nonetheless, even

8

Hoptowit asserted that he could not find a local doctor who was willing

to perform the necessary testing, because William Chiapella and his son

were also doctors. He made no attempt to locate an expert from outside

the Chico area until October 1988, when he and Blake “realized that . . .

[the] trial date was fast approach[ing] and [they] had not yet explored

issues relating to Mr. Crittenden’s mental health.”

18108 CRITTENDEN v. AYERS

assuming that trial counsel’s performance “fell below an

objective standard of reasonableness,” Strickland, 466 U.S. at

688, we reject Crittenden’s guilt-phase IAC claim. The mental

state defense he now contends should have been offered is no

more credible than the flimsy alibi defense actually put on at

trial. Cf. Crittenden I, 885 P.2d at 900-01.

Crittenden asserts that trial counsel should have “con-

cede[d] that [he] committed the killings, but . . . contest[ed]

whether he acted with the requisite” intent to kill the Chiapel-

las. He claims that he intended only to “enter[ ] the Chiapella

residence to commit a burglary” and was surprised by the

Chiapellas’ unexpected return, whereupon his brain abnor-

malities prevented him from controlling himself and he killed

the Chiapellas. Dr. Bittle averred that Crittenden, “subjected

to a highly stressful situation, might very well [have] . . . eng-

age[d] in impulsive, violent behavior.” The killings “might,

therefore, be more the result of an inability to control certain

impulses than deliberate, thought-out planning or premedita-

tion.” Dr. George Woods, a psychiatrist who examined Crit-

tenden after the trial, opined that Crittenden “was acting under

extreme stress” at the time of the killings and “most likely did

not form the requisite intent to kill the Chiapellas.” The

crimes, he explained, were instead the result of an “explosion

of violence.” Presented with this testimony, Crittenden argues

that the jury may have found reasonable doubt in whether the

killing was “deliberate and premeditated,” and so acquitted

him of first-degree murder with special circumstances.9

9

The State erroneously asserts that “[t]he guilt phase defense Crittenden

now argues that [trial counsel] should have presented is tantamount to a

concession of first degree felony murder and the special circumstance of

multiple murder.” Its argument fails to recognize that the Chiapellas’ kill-

ings took place during the so-called “window period” between Carlos v.

Superior Court, 672 P.2d 862 (Cal. Dec. 12, 1983), and People v. Ander-

son, 742 P.2d 1306 (Cal. Oct. 13, 1987), during which the California

Supreme Court interpreted the death penalty statute to require “an intent

to kill in all instances, even when the defendant was the actual killer.”

People v. Rogers, 141 P.3d 136, 183 (Cal. 2006); see also Duncan v.

CRITTENDEN v. AYERS 18109

[14] This argument is not persuasive, because the state

court record refutes Crittenden’s claim that he suffered preju-

dice. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007)

(explaining that “an evidentiary hearing is not required on

issues that can be resolved by reference to the state court

record”) (quoting Totten v. Merkle, 137 F.3d 1172, 1176 (9th

Cir. 1998) (internal quotation marks omitted)). Under Califor-

nia law as it then stood, evidence of mental illness was “ad-

missible solely on the issue of whether or not the accused

actually formed a required specific intent, premeditated, [or]

deliberated.” People v. Saille, 820 P.2d 588, 593 (Cal. 1991)

(quoting Cal. Penal Code § 28(a)) (emphasis added by Saille).

Even if the jury had heard a mental state defense, the over-

whelming evidence of deliberation and premeditation pres-

ented at trial would have contradicted Crittenden’s suggestion

that he did not kill the Chiapellas with the requisite intent. He

is unable, therefore, to show that trial counsel’s alleged defi-

cient performance undermined the reliability of the jury’s

guilty verdict. See Strickland, 466 U.S. at 694.

The facts established in the state court proceedings demon-

strate this.10 In October 1986, the Chiapellas hired Crittenden

to perform yard work. See Crittenden I, 885 P.2d at 896. On

January 11, 1987, Crittenden called his landlord to reschedule

an overdue rent payment, advising her that he would be able

Ornoski, 528 F.3d 1222, 1240 (9th Cir. 2008) (explaining that California

law required a finding that the defendant intended that the victim be killed

at the time of the defendant’s trial, held in 1986). Therefore, if the jury had

accepted Crittenden’s proposed mental state defense and found that he did

not have the intent to kill, he could not have been convicted of an offense

that made him eligible for the death penalty.

10

Assuming the California Supreme Court did not arrive at an “unrea-

sonable determination of the facts in light of the evidence presented in the

State court proceeding,” 28 U.S.C. § 2254(d)(1), that court’s findings of

fact are presumed correct unless rebutted by clear and convincing evi-

dence. See 28 U.S.C. § 2254(e)(1); Perez v. Rosario, 459 F.3d 943, 950

(9th Cir. 2006). Crittenden has failed to overcome that presumption.

18110 CRITTENDEN v. AYERS

to “pay it all” by January 14. Id. On the morning of the kill-

ings, January 13, Crittenden borrowed a knife from his room-

mate, telling him that he was using it to repair his stereo and

would return it the following day.11 See id. William Chiapella

was discovered gagged with a sock, “lying on the rug, his

hands tied behind his back to a desk chair, . . . his head and

face covered by a pillowcase.” Id. at 898. He had been

dragged from the Chiapellas’ study to their bedroom, where

he was stabbed and bludgeoned 13 times. See id. Katherine

Chiapella was discovered “lying on her back, her head and

face covered by a blanket. Her mouth had been gagged and

her hands tied behind her back with three separate bindings”

fashioned from the same, strawberry-patterned cloth as a

matching set of sheets and pillowcases left in Crittenden’s

apartment by his landlord. Id. at 897. She had been stabbed

at least two times and sustained blunt-object injuries to the

head and face. See id. Crittenden induced Katherine Chiapella

to write him a check for $3,000, as well as two unsigned

checks made out for cash. See id. at 896, 898. (Later that day,

Crittenden asked his wife to “prepare a budget based upon

assets of $3,000.” Id. at 896.) The phrase “just the beginning”

was written in lipstick on the mirrors in two different bath-

rooms. Id. at 897.

Reviewing the evidence in a post-trial motion to modify the

sentence, the trial court commented on the planning and

sophistication displayed by the murders: Crittenden “arrived

at [his choice of victims] by some degree of planning and cal-

culation,” “armed himself in advance and prepared his crimes

by bringing with him a pillow case from his own home” and

then “rendered [his victims] totally defenseless and at [his]

absolute mercy” before killing them. The California Supreme

Court agreed, observing that “the totality of the circumstances

of the crime amply demonstrates defendant’s intent to torture

11

Crittenden posits that there is some uncertainty about whether this

knife was actually used during the killings. This misses the point: Critten-

den’s borrowing of the knife itself evinced planning and deliberation.

CRITTENDEN v. AYERS 18111

William and suggests neither an ‘explosion of violence,’ nor,

in the case of the nonfatal wounds, inadvertent infliction.” Id.

at 920. “The careful, even excessive, binding and gagging of

the victims, involving a considerable expenditure of time and

effort, . . . is inconsistent with the theory that an ‘explosion

of violence’ occurred.” Id.

In the face of this evidence, it is not objectively unreason-

able to conclude that the mental state defense presently urged

by Crittenden had no “reasonable probability” of altering the

jury’s verdict. Strickland, 466 U.S. at 694. Neither Daniels v.

Woodford, 428 F.3d 1181 (9th Cir. 2005), nor Jennings v.

Woodford, 290 F.3d 1006 (9th Cir. 2002), directs a different

result. Daniels, unlike Crittenden, committed his crime before

California abolished the diminished mental capacity defense

in 1982 and therefore could have avoided a first-degree mur-

der conviction even in the face of “[s]ubstantial evidence sup-

porting . . . premeditation and deliberation.” Daniels, 538

F.3d at 1207 & n.29 (alterations in original) (quoting People

v. Cruz, 605 P.2d 830, 835 (Cal. 1980)).

Crittenden’s reliance on Jennings is also unconvincing.

Jennings stabbed the victim 14 times in the course of a rape

and apparent robbery, and bound the victim’s neck and

ankles. See 290 F.3d at 1008. Reviewing the matter de novo

because the defendant filed his habeas petition before

AEDPA’s effective date, see id. at 1011, we held that it was

reasonably probable that the jury, apprised of evidence that

Jennings suffered from “schizoaffective disorder and amphet-

amine psychosis,” might have found a “reasonable doubt as

to [his] ability to form the intent required for a first degree

murder conviction,” id. at 1017, 1019. By contrast, Critten-

den’s crimes reflected a qualitatively higher degree of deliber-

ation and planning, as evidenced by his extensive preparation

beforehand (e.g., rescheduling an overdue rent payment and

procuring a knife and binding materials) and his goal-oriented

behavior throughout (e.g., methodically incapacitating the

18112 CRITTENDEN v. AYERS

Chiapellas and making Katherine Chiapella write him a

check).

[15] Given the “ample evidence in the record to demon-

strate that a mental impairment defense was wholly inconsis-

tent with [the defendant’s] actions,” and therefore had no

reasonable probability of avoiding a death-eligible, first-

degree murder with special circumstances conviction, Totten,

137 F.3d at 1176; see also Douglas v. Woodford, 316 F.3d

1079, 1087 (9th Cir. 2003) (finding no prejudice where the

evidence overwhelmingly pointed to premeditation and delib-

eration and it was thus not reasonably probable that the jury

would have credited the defendant’s mental defense had it

been offered), we hold that it was not objectively unreason-

able for the California Supreme Court to reject Crittenden’s

guilt-phase IAC subclaim.

C. Penalty Phase

Crittenden also contends that his trial counsel conducted an

inadequate investigation into his mental health and social his-

tory, and then compounded this deficiency by presenting miti-

gation evidence ineffectually. The California Supreme

Court’s rejection of these arguments does not warrant federal

habeas relief under AEDPA. It is not objectively unreasonable

to conclude that trial counsel’s investigative efforts did not

fall below Strickland’s standard of reasonableness and were

adequate to support a strategic choice to emphasize Critten-

den’s positive characteristics and limit testimony about his

mental health and history of behavioral problems. For that

reason, we hold that Crittenden has not alleged facts stating

a colorable, penalty-phase IAC claim. We do not reach Strick-

land’s prejudice prong.

1. Investigation of Brain Disorder

We first address Crittenden’s argument that trial counsel’s

investigation was inadequate because it did not turn up evi-

CRITTENDEN v. AYERS 18113

dence of an organic mood disorder with bipolar features. He

asserts that the factual basis for such a diagnosis — a “history

of mood swings, aberrant behavior, and psychiatric treatment”

— “was well-documented and readily available to trial coun-

sel.” In his youth, Crittenden had been prescribed and

responded well to lithium, a standard treatment for an organic

mood disorder with bipolar features. According to Dr. Woods,

its “manifestations” were “readily apparent for many years”

and should have been “easily discernable from a review of

[Crittenden’s] medical and social history.” An adequate miti-

gation investigation would, Crittenden argues, have enabled

his psychiatric experts to make that diagnosis before the pen-

alty phase began.

[16] The California Supreme Court’s rejection of this

claim was not an objectively unreasonable application of

clearly established federal law. Trial counsel’s performance in

the penalty phase is assessed using the “same ‘clearly estab-

lished’ precedent of Strickland” that applies to all IAC claims.

Wiggins v. Smith, 539 U.S. 510, 522 (2003). In preparing for

the sentencing phase of a capital trial, it is imperative that trial

counsel undertake a diligent investigation into all reasonably

available mitigating information. See Porter v. McCollum,

130 S. Ct. 447, 452-53 (2009) (per curiam); Rompilla v.

Beard, 545 U.S. 374, 380-81 (2005); Wiggins, 539 U.S. at

524; Summerlin v. Schriro, 427 F.3d 623, 630-31 (9th Cir.

2005) (en banc) (describing the “minimal type of ‘objectively

reasonable’ investigation any competent capital defense attor-

ney should conduct in preparing a penalty phase defense”).

Counsel must conduct “reasonable investigations or . . . make

a reasonable decision that makes particular investigations

unnecessary.” Strickland, 466 U.S. at 691. The investigation

supporting counsel’s decision to stop investigating must itself

be reasonable, see Wiggins, 539 U.S. at 523; Stankewitz, 365

F.3d at 719, “evaluat[ing] the conduct from counsel’s per-

spective at the time,” Strickland, 466 U.S. at 689.

In addition to the mental health experts already consulted

(Drs. Kaldor, Erickson, Seals, Bittle and Dublin), Crittenden’s

18114 CRITTENDEN v. AYERS

trial counsel retained Dr. Daniel Edwards, a psychiatrist, to

perform additional testing on March 26, 1989. Dr. Edwards

also reviewed the results of Dr. Seals’ EEG/BEAM testing.

The following day, Dr. Richard Sauer performed a neurologi-

cal evaluation and found no abnormalities. Crittenden’s trial

counsel consulted Dr. Bittle again on April 25 to discuss the

upcoming penalty phase. About a week later, Dr. Edwards

submitted a report concluding that Crittenden had an “Organic

Brain Syndrome, Not Otherwise Specified.” He wrote that a

frontal lobe defect could account for significant features of

Crittenden’s brain dysfunction. The penalty phase began two

days later.

None of the seven mental health professionals trial counsel

consulted before the penalty phase diagnosed an organic

mood disorder with bipolar features. After being informed by

Dr. Kaldor that there were “certain organic mental conditions

which are associated with aggressive behavior and poor

impulse control,” trial counsel explored this potential source

of mitigating information. It is not disputed that the experts

they retained were competent and “qualified to evaluate” Crit-

tenden’s mental impairments. Frierson v. Woodford, 463 F.3d

982, 991-92 (9th Cir. 2006); see also Caro v. Calderon, 165

F.3d 1223, 1226-27 (9th Cir. 1999) (emphasizing that effec-

tive assistance of counsel means employing experts who are

qualified to perform the investigation necessary). Trial coun-

sel therefore fulfilled their obligation to “conduct an investi-

gation which will allow a determination of what sort of

experts to consult.” Caro, 165 F.3d at 1226.

Their investigative duties were not then at an end, however,

because in the preparing for the penalty phase, counsel must

also “present [appropriate] experts with information relevant

to the conclusion of the expert.” Id. Here, Dr. Kaldor took

Crittenden’s medical history and reviewed some of his medi-

cal records, although not the ones describing the lithium treat-

ment. Dr. Erickson took his life history. Neither diagnosed an

organic mood disorder. Dr. Bittle reviewed Crittenden’s

CRITTENDEN v. AYERS 18115

“complete medical/psychological file, which at that time

included his childhood records,” and the reports of Drs. Kal-

dor, Erickson and Seals. He disputed Drs. Kaldor and Erick-

son’s conclusion that Crittenden had an antisocial personality

disorder, but also did not diagnose an organic mood disorder.

Dr. Dublin’s MRI study found that the “structural integrity”

of Crittenden’s brain was within normal limits. Dr. Sauer’s

independent neurological evaluation turned up no abnormali-

ties. Even with the benefit of Dr. Seals’ EEG/BEAM results,

as well as his own clinical evaluation, Dr. Edwards did not

diagnose an organic mood disorder. None of the experts sug-

gested that additional background information or testing was

necessary before they could make an accurate evaluation of

Crittenden’s mental health.

[17] “At the end of the day,” Crittenden’s “argument turns

on a latter-day battle of experts” that is insufficient to warrant

federal habeas relief. Sims v. Brown, 425 F.3d 560, 584 (9th

Cir. 2005). Dr. Woods’ singular diagnosis of an organic mood

disorder with bipolar features amounts to a difference in med-

ical opinion, not a failure to investigate. See Fields v. Brown,

431 F.3d 1186, 1205-06 (9th Cir. 2005), aff’d on reh’g in rel-

evant part, 503 F.3d 755, 783 n.24 (9th Cir. 2007) (en banc).

Trial counsel alerted the mental health specialists to the possi-

bility that Crittenden might have organic brain damage and

then provided them with relevant background information.12

See Sims, 425 F.3d at 585-86 (rejecting IAC claim where

counsel “retained and informed well-qualified experts upon

whom [counsel] could reasonably rely”); cf. Caro, 165 F.3d

at 1227 (criticizing trial counsel for failing to provide expert

with the “information necessary to make an accurate evalua-

tion of [the defendant’s] neurological system”). That none of

them happened to unearth the particular line of mitigating evi-

12

For example, Dr. Edwards’ referral prompt was “[Crittenden] has an

abnormal computerized EEG indicating abnormal brain function. Are

there any indications of brain defect or damage on neuropsychological

testing?”

18116 CRITTENDEN v. AYERS

dence Crittenden now presents does not compel the conclu-

sion that the investigation was deficient. Attorneys are

entitled to rely on the opinions of properly selected, ade-

quately informed and well-qualified experts. Given the range

of experts trial counsel engaged here, to impose upon them

the additional duty “to investigate independently of a request

for information from an expert would ‘defeat the whole aim

of having experts participate in the investigation.’ ” Sims, 425

F.3d at 585-86 (quoting Hendricks, 70 F.3d at 1038).

[18] When a reasonable investigation does not turn up

signs of additional, reasonably available mitigating evidence,

competent counsel may make the judgment not to pursue a

line of inquiry further. See Bobby v. Van Hook, 130 S.Ct. 13,

19 (2009) (per curiam). We hold that the California Supreme

Court’s rejection of this subclaim was not objectively unreason-

able.13

13

The multitude of cases cited by Crittenden’s counsel are inapposite.

Cf. Frierson, 463 F.3d at 990-92 (counsel did not review transcripts,

investigative reports and psychiatric evaluations from defendant’s previ-

ous trials); Summerlin, 427 F.3d at 631 (counsel relied exclusively on

information developed at defendant’s pre-trial competency examination);

Silva v. Woodford, 279 F.3d 825, 846 (9th Cir. 2002) (counsel “failed to

even minimally assist in the preparation of possible mental defenses

related to psychiatric disorders or substance abuse”); Caro, 165 F.3d at

1226 (counsel did not consult with appropriate experts given defendant’s

known exposure to neurotoxins); Hendricks, 70 F.3d at 1043 (counsel did

not investigate mental condition as mitigating factor, only as guilt phase

defense); Deutscher v. Whitley, 884 F.2d 1152, 1159-61 (9th Cir. 1989)

(holding that counsel was ineffective because he did not pursue mental

health investigation even when records indicated that the defendant had

previously been committed to mental hospitals), vacated and remanded by

Angelone v. Deutscher, 500 U.S. 901 (1991), and reaffirmed by Deutscher

v. Angelone, 16 F.3d 981, 984 (9th Cir. 1994); Glenn v. Tate, 71 F.3d

1204, 1207-10 (6th Cir. 1995) (counsel acquiesced to examination by

court-appointed experts that were briefed exclusively by the prosecution);

Antwine v. Delo, 54 F.3d 1357, 1365-68 (8th Cir. 1995) (only examination

was court-ordered, 20-minute competency screening).

CRITTENDEN v. AYERS 18117

2. Investigation of Social Background

Crittenden also contends that trial counsel did not ade-

quately investigate his history of childhood abuse and behav-

ioral difficulties. Dr. Woods related that Crittenden had told

him that his mother “often used broomsticks, electrical cords,

or branches from trees to beat him” and “kept very tight con-

trols” on him. An investigator retained for state post-

conviction proceedings reported that Crittenden’s younger

brother had told her that he and Crittenden “were physically

beaten by their mother for the smallest infractions” and “con-

stantly berated” while growing up.

Trial counsel’s mitigation evidence presented during the

penalty phase belies Crittenden’s allegation of insufficient

investigation and instead confirms the thoroughness of trial

counsel’s investigative efforts. Over 20 character witnesses —

coaches, teachers, employers, ministers, friends, parents of

friends and Crittenden’s entire immediate family — ulti-

mately spoke on his behalf. They uniformly said that Critten-

den was polite, helpful, honest, hardworking, cooperative,

courteous, kind, respectful and close with his family.14

[19] Trial counsel’s “duty to investigate . . . ‘does not nec-

essarily require that every conceivable witness be inter-

viewed.’ ” Douglas, 316 F.3d at 1088 (quoting Hendricks, 70

F.3d at 1040); see also Van Hook, 130 S. Ct. at 19

14

For example, Crittenden’s younger brother talked about his very close

relationship with his brother growing up. Trial counsel had him describe

how they used to play with animals at their grandparents’ farm and go

fishing with their father. Crittenden was a loving and supportive brother,

whom he admired a great deal. Crittenden’s then-wife described him as

“very loving, very compassionate, sensitive, sincere, [and] honest.” She

said she “couldn’t have asked to be married into a better family” than the

Crittendens. She lived with them for a period of time and described them

as “very close knit,” “supportive of one another at all times” and “very

generous.” She and Crittenden would go to his family’s home “on the

weekend together to spend time” and to attend church with them.

18118 CRITTENDEN v. AYERS

(“[D]efense counsel’s ‘decision not to seek more’ mitigating

evidence from the defendant’s background ‘than was already

in hand’ fell ‘well within the range of professionally reason-

able judgments.’ ” (quoting Strickland, 466 U.S. at 699)).

Unlike in Stankewitz, for instance, where we determined that

counsel’s investigation was inadequate, trial counsel here dis-

patched investigators to interview many people who “spent

significant time with [Crittenden] during his childhood and

youth.” 365 F.3d at 719; see also Wiggins, 539 U.S. at 524

(holding that counsel were deficient for “abandon[ing] their

investigation of petitioner’s background after having acquired

only rudimentary knowledge of his history from a narrow set

of sources”). That investigation did not produce any “tantaliz-

ing indications” that would “ ‘lead a reasonable attorney to

investigate further.’ ” Stankewitz, 365 F.3d at 720 (quoting

Wiggins, 539 U.S. at 527). Hoptowit said he “was not aware

of any allegations that in fact Mr. Crittenden had been emo-

tionally and physically abused by his mother.”

[20] Strickland does not require counsel to continue

“[q]uestioning a few more family members . . . when a lawyer

truly has reason to doubt” that additional mitigating informa-

tion will be found. Rompilla, 545 U.S. at 389. Here, trial

counsel’s investigators spoke with family members and

friends who had information about Crittenden’s childhood

and relationship with his family, but none of them reported

anything that would have placed counsel on notice to investi-

gate further. See Babbitt v. Calderon, 151 F.3d 1170, 1174

(9th Cir. 1998) (“ ‘[C]ounsel is not deficient for failing to find

mitigating evidence if, after a reasonable investigation, noth-

ing has put the counsel on notice of the existence of that evi-

dence.’ ” (quoting Matthews v. Evatt, 105 F.3d 907, 920 (4th

Cir. 1997))); accord Douglas, 316 F.3d at 1088.

3. Mitigation Strategy

Crittenden lastly criticizes trial counsel’s presentation of

mitigating evidence, contending they should have linked his

CRITTENDEN v. AYERS 18119

brain dysfunction to the killings, explained that it was amena-

ble to treatment and contextualized it within his history of

behavioral problems. Given that it is not objectively unrea-

sonable to conclude that trial counsel undertook a reasonable

investigation into mitigation evidence, see supra Op. at

18109-16, we hold that Crittenden has not rebutted the pre-

sumption that trial counsel’s subsequent decisions were rea-

sonable under prevailing professional norms.

[21] Crittenden first argues that trial counsel should have

presented the import of his brain dysfunction more clearly and

stressed that it could be treated. The record does not support

this contention. During the penalty phase, Dr. Edwards and

Dr. Seals offered medical testimony about Crittenden’s brain

abnormalities. (Dr. Bittle was present throughout the penalty

phase, but did not testify.)15 Dr. Edwards testified that Critten-

den’s brain “does not function like a normal brain” and that

he had signs of organic “brain damage or brain dysfunction.”

Dr. Seals testified that Crittenden had abnormal electrical

activity — “clear-cut evidence of physiologic abnormalities”

— in the frontal lobe region of his brain. The frontal lobes

serve an “executive decision type of function” and are the

“executive control” area of the brain, Dr. Seals explained.

Basically “inhibitory in character,” they “make judgments as

15

Trial counsel’s decision not to call Dr. Bittle to testify in the penalty

phase did not fall below an objective standard of reasonableness. Dr. Bittle

had reviewed Crittenden’s medical records and thus would have been sub-

ject to potentially devastating cross-examination. See Harris, 949 F.2d at

1525 (holding that it is “acceptable trial strategy to choose not to call psy-

chiatrists to testify when they can be subjected to [harmful] cross-

examination”). As Hoptowit explained, trial counsel believed it was “es-

sential” that Drs. Kaldor and Erickson’s conclusion that Crittenden had

antisocial personality disorder be kept from the jury. His decision to side-

line Dr. Bittle was a tactical judgment supported by an adequate investiga-

tion, not evidence of constitutionally deficient performance. Cf. Frierson,

463 F.3d at 992 (finding deficient performance where counsel’s failure to

present psychiatric evaluations and chronic drug history was the result of

an inadequate investigation and lack of preparation rather than a reason-

able tactical decision).

18120 CRITTENDEN v. AYERS

to the appropriateness of certain actions, of recognizing how

much, for instance, of emotional expression is appropriate.”

Dr. Seals testified that Crittenden’s condition could be treated

with medication, which would “quiet down” electrical activity

and lead to “improvement in some of the dysfunctional

areas.” Hoptowit’s closing argument reminded the jury of this

medical testimony, emphasizing that the “frontal lobe area is

— as Doctor Seals told you — the executive control area . . .

[i]t’s the regulator and inhibitor of all other brain functions”

and that Crittenden’s brain defect was “treatable[,]

[c]ontrollable by medication.”

[22] Crittenden complains that trial counsel did not say

that such damage affected his “impulse” control, which Hop-

towit now says was a “terrible oversight.” We decline to

assign any talismanic quality to the word “impulse.” Although

“lay people” might well be “unable to make a reasoned judg-

ment” by themselves about the significance of a technical

medical finding, Hoptowit had Dr. Seals explain the practical

effect of frontal lobe damage on a person’s ability to control

himself. Cf. Caro, 165 F.3d at 1227 (emphasizing the impor-

tance of having experts explain technical psychological condi-

tions to the jury). The jurors heard that the frontal lobe area

inhibited behaviors, selectively released activities, regulated

emotional responses, judged the appropriateness of actions

and served as the “executive control” area of the brain, all of

which provided the context needed to make the relevance of

Crittenden’s brain dysfunction clear.

[23] We also reject Crittenden’s contention that trial coun-

sel’s mitigation strategy was so “ill-chosen that it was unrea-

sonable on its face” because it emphasized Crittenden’s

positive characteristics “without offering some compelling . . .

evidence about why he suddenly committed two murders.”16

16

Crittenden also argues that trial counsel’s performance was deficient

because the guilt-phase and penalty-phase strategies did not cohere, cost-

ing them valuable “credibility with the jury.” As was the case in Hen-

CRITTENDEN v. AYERS 18121

This argument has no merit. With the benefit of an adequate

investigation into potential mitigation evidence, trial counsel

decided to stress Crittenden’s positive qualities and, in Hop-

towit’s words, portray him as a “good student and an excel-

lent athlete, a loving son, brother and husband who had never

had any prior problems or disturbances.” Cf. Silva, 279 F.3d

at 830, 846 (explaining that counsel’s decision to “forego all

investigation” and present no explanatory mitigating evidence

“was patently deficient” and could not be “immunized from

Sixth Amendment challenges simply by attaching to it the

label of ‘trial strategy’ ”).

Hoptowit’s opening statement in the penalty phase

explained that Crittenden had an “average normal childhood,

much like any of us would have had.” By hearing from his

family and friends, the jury would gain “some understanding

of Steve Crittenden, the person.” Hoptowit then capably elic-

ited humanizing testimony that emphasized Crittenden’s posi-

tive qualities. His closing argument returned to that theme,

speaking of the love, respect and caring for Crittenden dis-

played by the many witnesses who testified on his behalf and

downplaying his future dangerousness. Returning a sentence

of life without parole instead of death would “allow the good

to continue” in Crittenden — because up until the time of the

murders, Hoptowit said, he had led a “legally blameless life”

— while punishing, controlling and treating the “bad in

Steve.” To dwell on his extensive history of behavioral prob-

lems and his brain dysfunction, as Crittenden now suggests,

would have undermined this strategy. Hoptowit believed that

“presenting extensive evidence” about those issues would just

dricks, “[w]e have been cited no authority holding that . . . [a competent]

attorney must treat the guilt and penalty phases of a death penalty trial as

an organic whole and pursue the same or even complementary strategies

in both phases.” 70 F.3d at 1041.

18122 CRITTENDEN v. AYERS

have given the jury more “reason for imposing the death penal-

ty.”17

[24] Trial counsel faced a tough choice given what they

knew at the time: they could elaborate upon Crittenden’s

brain dysfunction, discuss his history of behavioral problems

and hope that the jury would find him less culpable, even if

still legally responsible, for the murders. Or they could por-

tray him as a young man with many redeeming personal qual-

ities, who, perhaps because of a treatable brain defect, lost

control of himself in a fateful departure from an otherwise

law-abiding life. Although Strickland allows reviewing courts

to engage in a rough comparison of the risks and benefits

associated with a lawyer’s decisions, see, e.g., Darden v.

Wainwright, 477 U.S. 168, 186 (1986); Mak v. Blodgett, 970

F.2d 614, 619 (9th Cir. 1992) (per curiam), we do not view

Crittenden’s newly proposed strategy as so obviously superior

that any reasonably competent counsel would be compelled to

select it over the one actually used. Given the circumstances

as they appeared to trial counsel after conducting their investi-

17

Trial counsel strenuously sought the exclusion of prior bad acts evi-

dence. Citing People v. Balderas, 711 P.2d 480 (Cal. 1985), they con-

vinced the prosecutor that the fact of Crittenden’s convictions for

attempted forcible escape and assault on a custodial officer could not be

brought to the jury’s attention during the penalty phase. The prosecutor

then sought to introduce evidence of Crittenden’s guilty plea to unlawful

fighting in violation of California Penal Code section 415, and about two

dozen alleged other acts of violence — for example, an April 1986 shov-

ing incident with a high school classmate and a September 1986 alterca-

tion with an apartment neighbor. Trial counsel argued that to “introduce

evidence of schoolyard fights” and similar “misconduct so common that

likely most . . . of the persons in court at one time or another have been

guilty of committing” would render unreliable and arbitrary the jury’s

penalty-phase determination. On trial counsel’s motion, the trial court held

a hearing pursuant to People v. Phillips, 711 P.2d 423 (Cal. 1985), to

determine what, if any, of this evidence could be admitted. At the conclu-

sion of this hearing, the trial court held that it would allow some witnesses

to these alleged acts to testify during the penalty phase, but not others. In

light of this ruling, the prosecutor decided to present no additional evi-

dence in aggravation.

CRITTENDEN v. AYERS 18123

gation into mitigating circumstances, their choice of a human-

izing strategy was not objectively unreasonable.18

[25] The stringent standards for habeas relief established

by 28 U.S.C. § 2254(d) have not been satisfied. We hold that

Crittenden has not stated a colorable ineffective assistance of

counsel claim with respect to either the guilt or penalty phases

of his trial, and therefore affirm the district court’s dismissal

of this claim.

III. Shackling

Crittenden contends that his shackling was not objectively

reasonable because there was no compelling justification and

the trial court failed to pursue less restrictive alternatives

before imposing the physical restraints. We apply AEDPA’s

deferential standard of review with respect to the state court’s

reasoned denial of this claim when it rejected Crittenden’s

first state habeas petition. In Crittenden’s subsequent federal

habeas proceedings, the district court determined that the

shackling was not unconstitutional in light of Deck v. Mis-

souri, 544 U.S. 622 (2005), which clarified that the require-

ment of considering less restrictive alternatives to shackling

was not clearly established Supreme Court law at the time.

We agree.

Before trial, the court held a hearing to determine whether

to implement security measures during the trial. An assistant

marshal for the Placer County Sheriff’s Office and a criminal

investigator for the Butte County District Attorney’s Office

testified. After escaping from jail in May 1987, Crittenden

entered a house and took the resident at gunpoint, with what

18

We caution that a penalty-phase defense “based solely upon humaniz-

ing, rather than explanatory, mitigation evidence,” Allen v. Woodford, 395

F.3d 979, 1006 (9th Cir. 2005), has considerable pitfalls, and may reason-

ably be undertaken only after constitutionally adequate investigation and

preparation on counsel’s part.

18124 CRITTENDEN v. AYERS

was later identified as a toy gun, and forced him to drive to

Sacramento, where police apprehended Crittenden. Several

months later, Crittenden attempted another escape with two

other inmates. Crittenden grabbed a guard and slammed him

against cell bars. Additional correctional staff intervened and

foiled the attempted escape.

Both the assistant marshal and criminal investigator also

testified that Crittenden had not had any behavioral problems

in his previous court appearances during which security

arrangements were limited to physical restraints while he was

escorted into the courtroom, which were released when he sat

down at counsel table. The criminal investigator testified that

he believed Crittenden was an escape risk.

The assistant marshal proposed security arrangements for

the trial, which included escorting Crittenden into and out of

the courtroom in leg irons and handcuffs, outside of the jury’s

presence, and placing him in a security chair and using a

chain to secure him to the chair when seated at the counsel

table. The chain would be hidden by loose clothing and the

leg irons and handcuffs would be removed before the jury

entered the courtroom. He stated that Crittenden would need

to be chained or handcuffed to the security chair to prevent

him from being free to move about, but that he intended “not

to have Mr. Crittenden appear in any sort of restraints in the

presence of the jury,” and that the jury not see the chain.

The trial court found a “likelihood of escape in the court-

room or . . . nonconforming conduct relating to that in the

courtroom” based on Crittenden’s escape from jail, his subse-

quent attempted escape involving violence, the serious

charges with which Crittenden was being charged and Critten-

den’s athleticism and physical capacity to escape from the

courtroom. The trial court also noted that it took into consid-

eration that the proposed restraints were unobtrusive, would

be hidden from the jury view and that all efforts would be

made by the court to not call attention to the fact that Critten-

CRITTENDEN v. AYERS 18125

den could not stand or move around in the chair. The trial

court stated, “in exercising this discretion I am sanctioning the

use of shackles and handcuffs only outside the presence of the

jury and opt[ ] at this point in time for less visible restraints

to insure that safety to the court personnel, to the participants

and to counsel as well, and to Mr. Crittenden, himself.” The

trial court further stated that it would not sua sponte give an

instruction about the security chair or chain, because it was

presuming that the jury would not see it, but stated that it

would give an instruction if counsel requested.

[26] First, Crittenden argues that his shackling was not

objectively reasonable because the justification was not com-

pelling. He fails to rebut by clear and convincing evidence the

trial court’s finding on the record that the restraints were justi-

fied by a state interest specific to Crittenden’s trial, namely

his likelihood of escape or “nonconforming conduct.” See

§ 2254(d)(2), (e)(1). Although his escape history stemmed

from a time “long before commencement of trial” and he was

cooperative in his previous court appearances, these argu-

ments and their factual basis were before the trial court at the

time it decided to impose restraints. Crittenden has not pres-

ented any new evidence to warrant a different conclusion.

Next, Crittenden argues that the trial court, contrary to

clearly established federal law, did not pursue less restrictive

alternatives before shackling him to the chair and did not

weigh the benefits and burdens of shackling against other

options. The procedures that Crittenden refers to are rooted in

a line of our cases such as Castillo v. Stainer, 983 F.2d 145,

147-48 (9th Cir. 1992), and Gonzalez v. Pliler, 341 F.3d 897,

902 (9th Cir. 2003). We agree with the district court that

established Supreme Court law at the time of Crittenden’s

trial did not require such procedures.19

19

The Supreme Court has explained that “clearly established Federal

law” in § 2254(d)(1) “refers to the holdings, as opposed to the dicta, of

this Court’s decisions at the time of the relevant state-court decision,” Wil-

18126 CRITTENDEN v. AYERS

In Deck, the Supreme Court concluded that “[t]he Fifth and

Fourteenth Amendments prohibit the use of physical restraints

visible to the jury absent a trial court determination, in the

exercise of its discretion, that they are justified by a state

interest specific to a particular trial.” 544 U.S. at 629. The

Court made clear: “The constitutional requirement, however,

is not absolute. It permits a judge, in the exercise of his or her

discretion, to take account of special circumstances, including

security concerns, that may call for shackling.” Id. at 633.

One of the security concerns the Court specifically identified

is “escape risk[ ] related to the defendant at trial.” Id.

[27] Of importance here, Deck suggests that there was not

clearly established law requiring a trial court to take specific

procedural steps before imposing physical restraints. The

Supreme Court stated that “[c]ourts and commentators share

close to a consensus” disapproving routine shackling. Id. at

628. The Court juxtaposed this with its statement:

Lower courts have disagreed about the specific pro-

cedural steps a trial court must take prior to shack-

ling, about the amount and type of evidence needed

to justify restraints, and about what forms of preju-

dice might warrant a new trial, but they have not

questioned the basic principle.

Id. at 629. The Court cited federal and state cases, including

case law from this circuit, that discuss and apply various dif-

ferent procedural and evidentiary requirements to justify

restraints. Id. at 628-29. This suggests that our case law

requiring a court to weigh the benefits and burdens of shack-

ling and pursue less restrictive alternatives was not clearly

liams v. Taylor, 529 U.S. 362, 412 (2000), or in other words, “the govern-

ing legal principle or principles set forth by the Supreme Court at the time

the state court renders its decision,” Lockyer v. Andrade, 538 U.S. 63, 71-

72 (2003).

CRITTENDEN v. AYERS 18127

established federal law. See Carey v. Musladin, 549 U.S. 70,

76 (2006) (divergence of courts reflects lack of guidance from

the Supreme Court as to clearly established federal law). Deck

also does not itself mandate specific procedures or evidence

that must be considered before imposing restraints. Deck

leaves this to the discretion of the trial court, stating that it

“may of course take into account the factors that courts have

traditionally relied on in gauging potential security problems

and the risk of escape at trial.” 544 U.S. at 629.

Therefore, even if the trial court did not weigh the benefits

and burdens of shackling or consider less restrictive alterna-

tives, as Crittenden argues it failed to do, clearly established

federal law did not require it to do so. The trial court held a

hearing and then exercised its discretion to take account of

special circumstances, specifically “the likelihood of escape

. . . or the fact of nonconforming conduct relating to that in

the courtroom,” that it determined called for shackling in the

manner ordered. The trial court made a clear record of its

findings and explained that its determination was based on

Crittenden’s prior escape, escape attempt, the nature of the

charges and his athleticism.20 This determination was sup-

ported by the testimony of the assistant marshal and criminal

investigator, who were cross-examined by defense counsel.

[28] We hold that the trial court’s decision to permit physi-

cal restraint of Crittenden at trial was not based on an unrea-

sonable determination of fact, and Crittenden has failed to

rebut this presumption by clear and convincing evidence and

has not established a violation of clearly established law. We

need not reach the issue of whether Crittenden was prejudiced

by the shackling.

20

In contrast, in Deck, the trial court judge did not make formal or infor-

mal findings on the record, and did not refer to any escape risk or threat

to courtroom security. 544 U.S. at 634. The trial court judge gave as

explanation for Deck’s shackling in the penalty phase only that he “has

been convicted.” Id. The Court concluded that the trial judge had not prop-

erly explained why shackles were necessary. Id. at 634-35.

18128 CRITTENDEN v. AYERS

IV. Juror Misconduct

Crittenden appeals the district court’s denial of relief on his

claim of juror misconduct based on juror Clark’s consultation

of the Bible and the jury’s brief discussion of a biblical pas-

sage during penalty phase deliberations. The California

Supreme Court denied this claim on the merits. We affirm.

[29] Penalty phase deliberations began on the afternoon of

Wednesday, May 10, 1989, and continued all day Thursday

and Friday. Over the weekend, Clark later acknowledged, she

“studied the Bible . . . and found a scripture passage right on

point.” That passage was Genesis 9:6, which Clark rendered

as “[w]ho so sheddeth man’s blood by man shall his blood be

shed.” During the deliberations that resumed Monday morn-

ing, Clark mentioned the passage. At the federal evidentiary

hearing on this claim, juror Hodge testified that one of the “el-

derly ladies” (presumably Clark) had mentioned “something

from the Bible.” Hodge did not believe there was “discussion

about the passage . . . in relation to the case,” and any other

discussion was “very limited” in time. Deliberations contin-

ued without any “further discussion of the Bible.” The other

two jurors asked about the passage had no recollection of any

Bible-related discussion. On Monday afternoon, the jury

returned a verdict of death. Deliberations lasted a total of

approximately 19 hours over four days.

We need not decide here whether clearly established

Supreme Court law required the treatment of the Bible as

extrinsic evidence, compare McNair v. Campbell, 416 F.3d

1291, 1308 (11th Cir. 2005) (holding that biblical passages

constituted extrinsic evidence), with Robinson v. Polk, 438

F.3d 350, 363 (4th Cir. 2006) (holding that biblical passages

did not bear on facts at issue in the case and so were not “ex-

traneous prejudicial information”), or whether reading and

sharing biblical passages constitutes juror misconduct, see

Fields v. Brown, 503 F.3d 755, 778, 781 (9th Cir. 2007) (en

banc) (declining to decide whether juror misconduct occurred

CRITTENDEN v. AYERS 18129

when a juror shared his notes, including a biblical reference,

with other jurors because the noted had “no substantial and

injurious effect or influence in determining the jury’s ver-

dict”). Even if Clark’s consulting of the Bible and sharing of

the Genesis 9:6 passage with other jurors violated Critten-

den’s Sixth Amendment right to a jury “verdict . . . based

upon the evidence developed at the trial,” Turner v. Louisi-

ana, 379 U.S. 466, 472 (1965), he has not established preju-

dice. The alleged introduction of extrinsic evidence into

deliberations did not have a “ ‘substantial and injurious effect

or influence in determining the jury’s verdict’ ” of death.

Lawson v. Borg, 60 F.3d 608, 612 (9th Cir. 1995) (quoting

Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).21

[30] Clark’s private study of the Bible was not prejudicial.

Although we agree that he was “entitled to be tried by 12, not

9 or even 10, impartial and unprejudiced jurors,” Parker v.

Gladden, 385 U.S. 363, 366 (1966) (per curiam), the bare

showing that a juror read a religious text outside the jury

room does not establish prejudice. Such a rule has no support

in precedent and is, at the very least, in tension with the

Supreme Court’s teaching that “a sentencing jury must be

able to give a reasoned moral response to a defendant’s miti-

gating evidence.” Brewer v. Quarterman, 550 U.S. 286, 289

(2007) (internal quotation marks omitted).

Our opinion in Fields, in which we also considered a claim

of Bible-related juror misconduct, forecloses Crittenden’s

claim that Clark’s mention of Genesis 9:6 prejudiced him. In

Fields, the jury’s discussion of biblical passages was far more

extensive, but we nonetheless concluded, reviewing the mat-

ter de novo, that there was no prejudice. The foreperson there

21

“[T]he question of prejudice from extrinsic information is an objective

one, not a subjective one.” Fields, 503 F.3d at 781 n.22. “Juror testimony

about consideration of extrinsic evidence may be considered by a review-

ing court, but juror testimony about the subjective effect of evidence . . .

may not.” Id. at 778; see also Fed. R. Evid. 606(b) (same).

18130 CRITTENDEN v. AYERS

“checked the Bible and . . . made notes ‘for’ and ‘against’

imposition of the death penalty which he brought to the delib-

erations the next day.” Fields, 503 F.3d at 777. His notes were

passed around and the religious material “discussed by some

jurors.” Id. at 777-78. By contrast, nothing “but the briefest

mention of the Bible verse took place” during penalty phase

deliberations in Crittenden’s trial. As the district court found

after ordering an evidentiary hearing, the only juror who

recalled any mention of the biblical passage recalled that there

was no discussion of it “except for a possible statement

regarding the verse’s irrelevance to the case.” Moreover, the

passage itself was innocuous compared to the contents of the

foreperson’s note in Fields, which quoted four passages

besides Genesis 9:6, including the “eye for eye” maxim and

Romans 13:1-5, Fields, 503 F.3d at 777 n.15, which has been

understood as cloaking the “State with God’s authority,” id.

at 798-99 (Berzon, J., dissenting) (quoting Sandoval v. Calde-

ron, 241 F.3d 765, 779 (9th Cir. 2000)) (internal quotation

marks omitted).

Crittenden attempts to distinguish Fields, but the differ-

ences identified — for example, the timing of the Bible-

related discussion and the less aggravated nature of his own

offenses — do not alter our conclusion that Fields controls

here. See Fields, 503 F.3d at 781-82. Clark’s conduct had

even less of an “effect or influence in determining the jury’s

verdict” than that of the foreperson’s in Fields. Id. at 781.

Fields was unable to establish prejudice on more troubling

facts and a less deferential standard of review. Nor can Crit-

tenden here. His claim fails.

CONCLUSION

We vacate the district court’s denial of Crittenden’s habeas

petition on the Batson claim and remand for a determination

under Batson’s third step whether Crittenden has proved by a

preponderance of the evidence that the prosecutor’s decision

to strike Ms. Casey was “motivated in substantial part by

CRITTENDEN v. AYERS 18131

race.” Cook, 593 F.3d at 815. In all other respects we affirm

the district court’s denial of Crittenden’s habeas petition.

AFFIRMED IN PART, VACATED IN PART AND

REMANDED.